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543 So.2d 294 (1989)
STATE of Florida, Petitioner,
v.
Surapo S. SORAKRAI, Respondent.
No. 88-03166.
District Court of Appeal of Florida, Second District.
April 26, 1989.
James T. Russell, State Atty., Sixth Judicial Circuit, and Karen McHugh, Asst. State Atty., Clearwater, for petitioner.
James F. Manderscheid, St. Petersburg, for respondent.
FRANK, Acting Chief Judge.
The state has petitioned for a writ of certiorari challenging two non-final orders entered by the trial court in the current prosecution of Sorakrai for lewd and lascivious conduct alleged to be violative of section 800.04(2), Florida Statutes (1987). That aspect of the order granting "Defense Motion in Limine Number 1" is asserted by the state to be a departure from the essential requirements of law because it will permit Sorakrai to defend on the ground that he possessed a bona fide belief that the victim was sixteen years of age or older. The second in limine order bars the state from adducing testimony that Sorakrai videotaped a sexual encounter with the victim. We have considered the contentions urged in the state's petition and Sorakrai's response and find a departure from the essential requirements of law only in that portion of the order sanctioning Sorakrai's defense grounded upon a claimed good faith belief as to the victim's age. To that limited extent, we grant the petition. See State v. Pettis, 520 So.2d 250 (Fla. 1988).
It is alleged in the information that Sorakrai, on three separate occasions, engaged in sexual intercourse with a thirteen year old girl. It is not disputed that the sexual episodes were consensual and there is indication in the record that the girl was allowed entry into a bar where Sorakrai, a musician, was employed, that she drank *295 alcoholic beverages, and that she "walks, talks, [and] looks older" than her true age.
During our consideration of this matter, it did not escape our attention that the trial court, in spite of section 800.04's interdiction of unchastity and consent as defenses to the crimes proscribed in that section, has approved the admissibility of evidence of consent as a part of Sorakrai's defense. Extensive comment is not required in exposition of the reality that if the jury hears testimony indicating the victim's consent to a criminal conversation with Sorakrai, that testimony will be nothing less than a significant portion of Sorakrai's defense contrary to the statute's unmistakable prohibition. We suggest that the trial court reconsider its ruling.
Chapter 800 does not, however, expressly bar a defense based upon the charged person's belief that the partner in the sexual event is sixteen or beyond that age. Nonetheless, we are persuaded that neither ignorance, misrepresentation, nor belief that the victim is sixteen years or older is available to a defendant charged with the violation of section 800.04(2). That section renders a person who "[c]ommits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years," guilty of a second degree felony.
The felonies charged against Sorakrai fall "within the category of crimes `in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act' ... and proof of an intent is not indispensable to conviction." Simmons v. State, 10 So.2d 436, 438 (Fla. 1942); Hendricks v. State, 360 So.2d 1119 (Fla. 3d DCA 1978). The principle has long endured in Florida that when a statute condemns an act as criminal without specifically embodying the element of intent, "it is not necessary for the State to prove that the commission of such act was accompanied by criminal intent." State v. Medlin, 273 So.2d 394, 396 (Fla. 1973). The state meets its burden in a matter of this kind through proof that the act was committed with a person under the age of sixteen.
The offense identified in section 800.04(2) acquires its substantive components from the definition of sexual battery found in section 794.011(1)(h) which, in relevant part, states that: "The term `sexual battery' means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object...."
In fleshing out chapter 794 in order fully to codify the elements of the crime formerly known as statutory rape, the legislature provided in section 794.021 that:
When, in this chapter, the criminality of conduct depends upon the victim's being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.
Because of the apparent dependence of section 800.04(2) upon section 794.011(1)(h), it is our view that the legislature intended section 794.021 to be operative in the implementation of section 800.04(2). It is manifest from the result reached in State v. Lanier, 464 So.2d 1192 (Fla. 1985), that the supreme court perceived sexual intercourse with an underage female, condemned in section 800.04, to be criminal behavior notwithstanding the absence of chastity and the presence of consent. It is our judgment that conduct violative of section 800.04 carries with it the same concept of "strict liability" that has traditionally characterized "statutory rape." Simmons. Thus, we are persuaded that section 794.021 forecloses Sorakrai from a defense based upon the victim's misrepresentation of her age or a bona fide belief that she was sixteen years or older.
Accordingly, we grant the petition and quash the order we have reviewed.
PARKER, J., concurs.
HALL, J., dissents with opinion.
HALL, Judge, dissenting.
I respectfully dissent.
*296 I have no quarrel with the general principles of law set forth in the majority opinion regarding what may and may not be defenses to the crime with which respondent has been charged. I cannot conclude, however, that the order presently under review constitutes a departure from the essential requirements of law requiring intervention on the part of this court.
The state's right of direct appellate review is limited to the matters listed in rule 9.140(c)(1), Florida Rules of Appellate Procedure. Orders which merely pass upon the relevance of certain evidence are not among the enumerated categories. In State v. Pettis, 520 So.2d 250 (Fla. 1988), our supreme court reaffirmed that, in certain circumstances in ongoing criminal prosecutions, the appellate courts may entertain petitions for certiorari by the state. However, Pettis does not authorize, nor has the law of this state ever authorized, the use of certiorari review to correct every error cutting against the state's position but which is not covered by rule 9.140(c)(1). Rather, certiorari review should be restricted only to those situations wherein the error "has the effect of substantially impairing the ability of the state to prosecute its case." State v. Steinbrecher, 409 So.2d 510, 511 (Fla. 3d DCA 1982).
I cannot conclude that the trial court's errors in this case, if in fact it did err, rise to this level. Sorakrai has never indicated that he intends to argue consent as a defense. He has merely stated his belief that "it's important that at least the jurors be told, at least by the court, that this is an act of consensual sex ... and to know that this is not a case where the girl was forced... ." The trial court agreed only that this information would be relevant, not that a viable defense is thereby created. Similarly, when proffering Sorakrai's belief that the victim was of lawful age, defense counsel based much of his argument on the effect of this evidence upon Sorakrai's credibility as a potential witness in his own behalf. It may be that, under the law of Florida, such facts are more appropriate as mitigating factors for consideration at the sentencing phase. Nevertheless, they are still part of the res gestae and I do not believe appreciable harm accrues to the state's case by permitting the jury to know all the circumstances surrounding the accusations against Sorakrai, particularly where the trial court has given no indication of intending misleading instructions on the law.
The unrestrained resort to certiorari for every adverse pretrial ruling encourages the proliferation of "mini-trials" prior to the regularly scheduled trial whenever either party believes that some controversial issue might arise. The fact remains that the state's right of review is simply more limited than the defendant's. There will always be certain errors that will have to go uncorrected because they are not of sufficient magnitude to justify issuance of an extraordinary remedial writ.
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THE THIRTEENTH COURT OF APPEALS
13-12-00484-CR
ALBERTO GALVAN REYNA
v.
THE STATE OF TEXAS
On Appeal from the
332nd District Court of Hidalgo County, Texas
Trial Cause No. CR-3248-11-F
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed as modified.
The Court orders the judgment of the trial court AFFIRMED AS MODIFIED.
We further order this decision certified below for observance.
January 16, 2014
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521 F.Supp.2d 619 (2007)
CMS NORTH AMERICA, INC., a Michigan corporation, Plaintiff,
v.
DE LORENZO MARBLE & TILE, INC., a California corporation, Defendant.
No. 1:07-cv-824.
United States District Court, W.D. Michigan, Southern Division.
October 9, 2007.
*620 Robert H. Gillette, Wheeler Upham PC, Grand Rapids, MI, for Plaintiff.
Kenneth J. Poole, Law Offices of Kenneth J. Poole, Torrance, CA, for Defendant.
Opinion and Order
PAUL L. MALONEY, District Judge.
Granting Plaintiff's Motion to Remand the Case to State Court Denying Plaintiff's Request for Attorney Fees Terminating the Case
On July 23, 2007, plaintiff CMS North America, Inc. ("CMS") filed the instant complaint defendant DeLorenzo Marble & Tile, Inc. ("DeLorenzo") in the Circuit Court of Kent County, Michigan ("the state court"), alleging that DeLorenzo has failed and refused to pay $33,245.84 that is due on the sale of machinery, see Comp. ¶¶ 6-10. CMS seeks $33,245.84 plus 18% interest per annum (from April 19, 2006 to the present) and attorney fees and costs, see Comp. ¶ 10. DeLorenzo was served on July 25, see Pl.'s Br. at 1. On August 23, DeLorenzo timely filed a notice of removal that invoked diversity jurisdiction, as well as a counterclaim seeking over $75,000 in damages. On September 10, CMS filed an answer to DeLorenzo's counterclaim.
On August 28, CMS moved to remand this case to the state court and requested an award of attorney's fees and costs for improper removal; DeLorenzo filed an opposition brief on September 10, and CMS filed a reply brief in support of its motion on September 14. For the reasons that follow, the court will grant CMS's motion to remand but will deny its request for fees and costs.
LEGAL STANDARD: Removal to Federal Court
Title 28 U.S.C. § 1441 authorizes defendants to remove cases to federal district court if there exists diversity or federal-question jurisdiction. Section 1441 provides, in its entirety:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court for the United States for the district and division embracing the place where the action is pending. For purposes of removal under this chapter, the citizenship of defendants *621 sued under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim of right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.
Removal is proper only if federal jurisdiction existed at the time of removal, without considering subsequent events, whether caused by the plaintiff or beyond his control. Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir.2007) (Griffin, J.) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293, 58 S.Ct. 586, 82 L.Ed. 845 (1938) and Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 872 (6th Cir.2000)); see also Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007) ("The existence of subject matter jurisdiction is determined by examining the complaint as it existed at the time of removal.'") (quoting Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 210 (6th Cir.2004)).
The removing party bears the burden of establishing federal jurisdiction. Harnden, 496 F.3d at 581 (citing Eastman v. Marine Mech. Corp., 438 F.3d 544, 549-50 (6th Cir.2006)); see also Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989) ("The party seeking removal bears the burden of establishing its right thereto.") (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). This means that a defendant seeking removal must establish by a preponderance of the evidence that the amount in controversy is sufficient. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir.2006) ("A defendant wishing to remove a case bears the burden of satisfying the amount-incontroversy requirement.") (citation omittedly Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 572 (6th Cir. 2001.).
Significantly, "all doubts should be resolved against removal." Harnden, 496 F.3d at 581 (citing Eastman, 438 F.3d at 549-50); see also Province of Ontario, 874 F.2d at 339 ("The removal petition is to be strictly construed, with all doubts resolved against removal.") (citing Wilson v. USDA, 584 F.2d 137, 142 (6th Cir.1978)). The United States Supreme Court has explained the rationale for this latter rule as follows:
The power reserved to the [S]tates under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. "Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 . . . Emphasis Added
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). In other words, removal statutes are strictly construed "to promote comity and preserve jurisdictional boundaries between state and federal courts." Sheridan v. New Vista, LLC, 406 F.Supp.2d 789, 792 (W.D.Mich.2005) (Quist, J.) (citing Alexander v. EDS Corp., 13 F.3d 940, 949 (6th Cir.1994)).
*622 DISCUSSION
A. DeLorenzo Has Not Established the Requisite Amount in Controversy
DeLorenzo bears the burden of establishing diversity jurisdiction, Harnden, 496 F.3d at 581, which requires more than $75,000 in controversy, exclusive of interest and costs, 28 U.S.C. § 1332(a). It is undisputed that excluding interest find costs, the amount sought by CMS (about $33,000), Comp. ¶ 10, is insufficient to satisfy the amount-in-controversy requirement. DeLorenzo asks this court to make up the deficiency by counting the amount sought by its counterclaim. The court declines to do so.
1. There Is No Supreme Court Precedent Squarely Governing this Issue
The United States Supreme Court has never clearly decided whether damages sought by counterclaims or cross-claims should be counted in determining the amount in controversy for purposes of the modern diversity statute, 28 U.S.C. § 1332.
In Yankaus v. Feltenstein, 244 U.S. 127, 37 S.Ct. 567, 61 L.Ed. 1036 (1917), the plaintiff filed suit in New York state court, seeking only $800, insufficient to meet the then-prevailing $3,000 statutory' minimum amount in controversy for federal diversity jurisdiction. The defendant asserted a permissive counterclaim seeking over $3,000 in damages and removed the case to federal district court on that basis. Id. at 128, 37 S.Ct. 567. The federal district court declined to count the amount sought by the counterclaim, held that the complaint did not seek the requisite $3,000, and remanded the case to state court. The defendant ultimately appealed to the United States Supreme Court, which held that a federal district-court order remanding a case to state court is not reviewable on appeal. Id. at 133, 37 S.Ct. 567. The Supreme Court did not address whether the amount sought by a counterclaim may ever be counted in determining the amount in controversy for purposes of diversity jurisdiction.
2. There Is No Sixth Circuit Precedent Squarely Governing this Issue
Nor has the United States Court of Appeals for the Sixth Circuit issued a decision, published or unpublished, that squarely and conclusively resolves the issue. In Parris v. Mego Mortgage Corp., 14 Fed.Appx. 394 (6th Cir.2001) (per curiam) (Jones, Suhrheinrich, & Daughtrey, JJ.), a mortgagor brought a class action against mortgagees, asserting a state-law usury claim. The defendant moved to dismiss on the ground that the plaintiff had not alleged over $75,000 in controversy, but the district court denied the motion. On appeal, the defendant contended that the district court erred by counting mortgage-loan interest charges that were presently unaccrued and unincurred that might accumulate over the life of a loan that contained a right-to-prepay. Id. at 395. The Sixth Circuit affirmed the district court's exercise of diversity jurisdiction, reasoning,
Under the plain language of the [state usury statute], a contract usurious on its face will not be enforceable. The contract between the parties includes both the principal and the interest rate at which the principal must be repaid. Although theoretically Plaintiff could prepay all or a portion of the principal so as to avoid the entire amount of interest that would otherwise accrue over the life of the loan, prepayment is at her election, not at Defendants' election. In short, the jurisdictional amount is met in this case even without consideration of potential statutory damages or attorney's fee . . . because the amount contracted *623 for is $35,000 and the interest payable [under] the terms of the agreement exceeds $60,000.
Id. at 396-97.
The Sixth Circuit noted that the defendant had not counterclaimed for recovery of the principal or lawful interest. The Circuit stated that even if the defendant had filed such a counterclaim, the amount sought by the counterclaim would not be counted when determining the amount in controversy. In other words, the counterclaim could not affect the amount sought by the complaint: "Events occurring subsequent to the institution of suit which reduce the amount recoverable below the statutory limit do not oust jurisdiction." Id. at 397 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90, 58 S.Ct. 586, 82 L.Ed. 845 (1938)).
Similarly, in Rosen v. Chrysler Corp., 205 F.3d 918 (6th Cir.2000), a class of vehicle owners/lessors sued a manufacturer under state law for common-law fraud, state statutory fraud, and negligent misrepresentation. Id. at 920. At that time the diversity statute required at least $50,000 in controversy exclusive of interest and costs. Each plaintiff sought rescission of his approximately-$30,000 vehicle purchase, plus treble damages under state statute. Id. The district court held that it was a legal certainty that the plaintiff's could not recover more than $50,000 each, and dismissed the action for lack of subject-matter jurisdiction. Id. at 921. The Sixth Circuit reversed, holding that the district court should have counted the treble damages potentially recoverable by the plaintiff's under state statute. Id. at 922 ("A trebling of rescission damages alone potentially could exceed the $50,000 amount in controversy [requirement]."). The Rosen panel also held that the district court committed a second error:
[I]n cases where a plaintiff seeks to rescind a contract, the contract's entire value, without offset, is the amount in controversy. * * * Thus, the District Court erred by offsetting the amended complaint's re[s]cission claim by the resale of the [vehicle]. The amount in controversy is the full contract price paid by plaintiffs approximately $30,000.
Id. at 921-22 (citing, inter alia, published decisions from 5th, 7th, and 9th Circuits, and Cohen v. North Ridge Farms, Inc., 712 F.Supp. 1265, 1266 (E.D.Ky.1989)).
Our Circuit's holdings in Parris and Rosen do not conclusively govern the issue before us. Our issue is not whether a counterclaim can reduce the amount in controversy below the otherwise-sufficient amount sought by the complaint; it is whether a counterclaim can increase the amount in controversy above the otherwise-insufficient amount sought by the complaint.
Our Court of Appeals has issued an unpublished decision that noted a split in authority over whether counterclaims should be counted in determining the amount in controversy for diversity-jurisdiction purposes. The panel did not conclusively take a side in the debate, however, because it was able to decide the appeal on another ground. In Sanford v. Gardenour, No. 99-5504, 225 F.3d 659, 2000 WL 1033025 (6th Cir. July 17, 2000) (Kennedy, Siler, & Batchelder, JJ.), the district court granted summary judgment to the defendant on plaintiffs' sole claim, a state-law libel claim. The plaintiffs appealed, contending inter alia that the district court erred by failing to remand the case for lack of subject-matter jurisdiction. Id. at *1. Before the district court, the plaintiffs had filed a remand motion representing that they were seeking less than $75,000 exclusive of interest and costs. *624 Thirteen days later, the same day the court denied the motion to remand, the plaintiffs filed Fed.R.Civ.P. 26 disclosures that stated, "[f]or jurisdictional purposes and their motion to remand this action to state court, the total amount of damages sought, exclusive of costs, is $74,999." Id. at *2. The plaintiffs' disclosure then stated, however, that if the case remained in federal court, they would seek over $500,000 in damages. Id.
The Sixth Circuit affirmed the district court's denial of the remand motion, explaining
We affirm the district court's determination that it had jurisdiction over the case, although we do so for different reasons. The district court included the valuation of the counterclaim in assessing whether the amount in controversy exceeded the statutory requirements, relying on Swallow & Associates [v. Henry Molded Prods., Inc.], 794 F.Supp. at 663 [E.D.Mich.1992]. However, as plaintiffs point out, there is a split of authority as to whether a defendant who possesses a compulsory counterclaim which satisfies the federal jurisdictional requirements may aggregate the value of his claim with the value of the plaintiff's claims to satisfy the amount in controversy [requirement] for removal jurisdiction purposes. Wright & Miller, 14C FED. PRAC. & PROC. Juris.3d 3725 (1998). Finally, "concern about encroaching on a state court's right to decide cases properly before it, requires [federal courts] to construe removal jurisdiction narrowly." Cole v. Great Atlantic & Pacific Tea Co., 728 F.Supp. 1305, 1307 (E.D.Ky.1990) (remand ordered where plaintiff stipulated her unliquidated damages would not exceed $40,000.00).
We hold that the plaintiffs are estopped from arguing their case is worth less than $75,000 by their Rule 26 disclosures. Unlike the plaintiffs in Adkins [S.D. W.Va.1995], Oder [S.D. Ind.1992], or Cole [E.D.Ky.1990], [plaintiffs] made no binding stipulation in their motion for remand that they would not seek or enforce a judgment in state court of less than $75,000. In fact, in their Rule 26 disclosures, they sought in excess of $500,000 in actual and punitive damages in federal court. Thus, by their own admission, their claim is worth more than the minimum jurisdictional amount. * * * Therefore, the district court did not err in concluding it had jurisdiction over this case.
Sanford, 2000 WL 1033025 at *3 (alterations in original). By mentioning the obligation to construe removal jurisdiction narrowly right after noting the debate over whether to include counterclaims in the amount in controversy, the Sanford panel may have been hinting at an inclination to exclude counterclaims from that calculation. But the panel did not expressly take sides in that debate.
3. There is Little Persuasive Authority from Courts of Appeals in Sister Circuits
Relatively few Courts of Appeals from other circuits have squarely addressed the issue either; panels from at least three circuits have fairly recently avoided deciding the issue.[1]
*625 Published decisions from the First, Fifth, and D.C. Circuits tend to support plaintiff CMS's position that counterclaims must be excluded when determining the amount of controversy for diversity purposes.
In Saint Paul Reins. Co. v. Greenberg, 134 F.3d 1250 (5th Cir.1998), Greenberg's home, which was covered by a homeowner's policy issued by Saint Paul Reinsurance ("the company"), was destroyed by fire. Id. at 1251. The company brought an action in federal district court seeking a declaration that it was not obligated to pay for the loss under the policy. In response, Greenberg moved to dismiss for lack of subject-matter jurisdiction, noting that he was seeking only $45,500 the $35,000 coverage limit under the policy plus $10,500 in attorney's fees under Texas insurance and deceptive trade-practices statutes which was less than the $50,000 then required by the diversity statute, 28 U.S.C. § 1332. Id. at 1252. Greenberg also filed both a separate state-court action and a counterclaim in the federal case seeking those same sums. Id. The district court dismissed the action, and the Fifth Circuit reversed. The Fifth Circuit reasoned that the amount in controversy was satisfied, but not by virtue of the amounts sought in Greenberg's counterclaim. On the contrary, the Fifth Circuit held that the district court committed legal error by considering the counterclaim at all when determining the amount in controversy:
The district court based its determination of the amount in controversy on Greenberg's counterclaim, in which he sought only the $35,000 policy limits and attorney's fees not to exceed $10,500. But this was error as a matter of law, given that neither this counterclaim nor Greenberg's state court petition were [sic] filed until after the filing of St. Paul's declaratory judgment complaint. Thus, neither of these pleadings may be considered in testing the amount here in controversy.
* * * * * *
[W]e must conclude that the district court erred in dismissing St. Paul's complaint for declaratory relief for lack of subject matter jurisdiction. This error resulted from failure to include in the court's calculation the statutory damages of 18 percent per annum under the Texas Insurance Code.
Id. at 1254 (emphasis added). See also Ballard's Service Ctr., Inc. v. Transue, 865 F.2d 447, 449 (1st Cir.1989) ("Title 28 U.S.C. § 1446 authorizes removal only by defendants and only on the basis of claims brought against them and not on the basis *626 of counterclaims asserted by them."); cf. Rosenboro v. Kim, 994 F.2d 13, 19 n. 4 (D.C.Cir.1993) ("Kim also argues that, in analyzing whether [plaintiff]'s claims meet the jurisdictional requirement, we Should consider the fact that he signed a release of all claims arising from the accident. But the presence of such a release a defense to liability, and defenses cannot be considered in determining the amount in controversy.").
The parties have not identified any published U.S. Court of Appeals decisions holding to the contrary, i.e., that as a general rule the damages sought by a counterclaim may be counted to determine the amount in controversy for purposes of removal diversity jurisdiction. An unpublished Ninth Circuit decision appears at first blush to reach that holding, but closer scrutiny shows that it does not stand for such a general proposition. In Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Moore, 171 Fed.Appx. 545 (9th Cir.2006), an arbitrator awarded exactly $75,000 to the plaintiff, and the plaintiff filed suit in federal district court to confirm the award. On appeal, the defendant contended that the district court lacked diversity jurisdiction because the arbitration award that plaintiff sought to confirm did not exceed $75,000. Id. at 546. The Ninth Circuit panel held that the amount-in-controversy requirement was satisfied because the arbitrator had not only awarded $75,000 to plaintiff but also denied various counterclaims, including one for $2 million in compensatory damages. Id. The panel based its holding, however, on Ninth Circuit precedent that is peculiar to the arbitration-confirmation context: "the amount at stake in the underlying litigation, not the amount of the arbitration award, is the amount in controversy for the purposes of diversity jurisdiction." Id. (quoting Theis Research, Inc. v. Brown & Bain, 400 F.3d 659, 662 (9th Cir.2005)).
The Ninth Circuit's decisions in Moore & Theis are inapposite, because this is not an action to confirm or vacate an arbitration award. Contrast Ford v. Hamilton Investments, Inc., 29 F.3d 255, 260 (6th Cir.1994) (holding that diversity jurisdiction was lacking where the losing party to an arbitration merely sought to vacate an arbitration award ($30,524) that was less than the required amount in controversy ($50,000), but suggesting that amount in controversy would have been satisfied if losing party had additionally challenged the arbitrator's rejection of its multimillion-dollar counterclaims).[2]
*627 An unpublished Fourth Circuit decision allowed the damages sought by a counterclaim to "count" for purposes of the amount in controversy for diversity jurisdiction, but only under limited circumstances that are not present here. That Fourth Circuit panel expressly limited its pronouncement to a particular class of declaratory-judgment actions:
When examining the amount in controversy in a declaratory judgment action, "[t]he amount in controversy is the pecuniary result to either party which that judgment would produce." Government Employees Insurance Co. v. Lally, 327 F.2d 568, 569 (4th Cir.1964). * * * Here, Nutter's action is a preemptive one in contemplation of New Rents' threatened action which Nutter's first-strike action was designed to forestall. New Rents' letter threatening action demanded $50,000, referring to it as "a reduced estimate of the damages that New Rents has suffered as a result of your conduct." Additionally . . . New Rents asserted a counterclaim for the $50,000 in addition to damages for tortious interference with contract and misappropriation of trade secrets. The district court did not err in finding on this basis that the amount in controversy exceeded $50,000.
Nutter v. Rents, Inc., No. 90-2493, 945 F.2d 398, 1991 WL 193490, at *4 (4th Cir.1991); cf. Foundation For Interior Design Ed. Research v. Savannah Coll. of Art & Design, 39 F.Supp.2d 889, 894-95 (W.D.Mich.1998) (Quist, J.) ("[T]he amount in controversy in a declaratory judgment action may be measured by the pecuniary result to either party which that judgment would produce.'") (citing GEICO v. Lally, 327 F.2d 568, 569 (4th Cir.1964)), aff'd on other grounds, 244 F.3d 521 (6th Cir.2001). Even if our circuit were to adopt the Nutter rule, it would not govern this case because this is not a declaratory-judgment action, and because the parties have not suggested that CMS filed its state-law claims preemptively to forestall a threatened action by DeLorenzo.
4. Persuasive Authority from District Courts in Our Circuit
Absent persuasive binding authority from the Supreme Court or the Sixth Circuit, then the court examines district-court decisions within our circuit. The majority of Sixth Circuit district courts to confront the question have held that counterclaims should not be considered when *628 determining the amount in controversy for purposes of removal jurisdiction, and this court finds their reasoning persuasive. Judge Lesley Wells of the Northern District of Ohio has cogently explained the reasoning that underlies the majority view,
While district courts have taken different approaches with respect to compulsory counterclaims, the majority of courts have held that a federal court should not consider the value of a defendant's compulsory counterclaim in determining the amount in controversy for removal jurisdiction. See e.g. FLEXcon Co. v. Ramirez Commercial Arts, Inc., 190 F.Supp.2d 185, 186-87 (D.Mass. 2002); Maloan v. Bancorpsouth Bank, Inc., 2002 WL 1397266, at *2 (D.Tenn. March 29, 2002); Kaplan v. Computer Sciences Corp., 148 F.Supp.2d 318, 320-21 (D.N.Y.2001); Independent Mach. Co. v. International Tray Pads & Packaging, Inc., 991 F.Supp. 687, 691-93 (D.N.J.1998); 14B Wright & Miller, Federal Practice and Procedure §§ 3706 and 3725. The Court finds the reasoning expressed in those cases . . . to be persuasive.
While the Sixth Circuit has not directly addressed this issue, it has referred approvingly to the traditional rule that "`no part of the required jurisdictional amount can be met by considering a defendant's counterclaim' to satisfy the amount in controversy requirement for removal jurisdiction purposes." Sanford v. Gardenour, 2000 WL 1033025, at *3 (6th Cir. July 17, 2000). The Sixth Circuit has also consistently held that the amount in controversy for federal diversity jurisdiction purposes is determined as of the time the action is commenced. Klepper v. First American Bank, 916 F.2d 337, 340 (6th Cir.1990); Sellers v. O'Connell, 701 F.2d 575, 578 (6th Cir.1983); Worthams v. Atlanta Life Ins. Co., 533 F.2d 994, 997 (6th Cir.1976).
Moreover, only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir.2000).
Taken together these cases suggest that the amount in controversy for purposes of diversity jurisdiction, at least in the context of removal, should be determined solely by considering the plaintiff s complaint. Such a conclusion is also consistent with the U.S. Supreme Court's conclusion that the language and legislative history of Section 1441 reveals a congressional intent to restrict the removal jurisdiction of federal courts and its mandate that Section 1441 should be narrowly construed to ensure "due regard for the rightful independence of state government." Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 107-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Long v. Bando Manufacturing of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000) (explaining that because the removal statutes implicate federalism concerns, they are to be narrowly construed against removal). . . .
Firestone Fin. Corp. v. Syal, 327 F.Supp.2d 809, 811-12 (N.D.Ohio 2004) (footnote 2 omitted) (paragraph breaks added).
In addition, as Judge Todd of the Western District of Tennessee has explained, the removal statute, 28 U.S.C. § 1441, provides for removal of cases in which the federal district court would have had original jurisdiction:
When interpreting this phrase, the Sixth Circuit has on numerous occasions noted that "[g]enerally, a civil case brought in *629 a state court may be removed by a defendant to federal court if it could have been brought there originally." See, e.g., Rogers, 230 F.3d [at] 871. . . . Whether an action could have been brought in federal court originally is determined by the amount in controversy at the time of removal. See id., at 872. Since Defendant's counterclaim was not presented before removal, [it] could not be considered as part of the amount in controversy.[3]
Maloan, 2002 WL 1397266 at *3 (emphasis added). Likewise here, DeLorenzo by definition had to remove the case to this court before filing its counterclaim in this court. Because the counterclaim was not present in the case before removal, considering the damages sought by the counterclaim when determining the amount in controversy for removal diversity jurisdiction would violate the rule that "whether an action could have been brought in federal court originally is determined by the amount in controversy at the time of removal." Id. (citing Rogers, 230 F.3d at 872); see also Halstead v. Southerncare, Inc., No. 4:05-cv-76, 2005 WL 2261454, at *3 (W.D.Mich. Sept. 16, 2005) (Quist, J.) ("Because SouthernCare did not file its counterclaim until after removal, the counterclaim has no bearing on the amount in controversy.") (disagreeing with Swallow & Assocs. v. Henry Molded Prods., Inc., 794 F.Supp. 660 (E.D.Mich.1992) (Newblatt, J.)).[4]
Finally, the late Judge Mac Swinford of the, Eastern District of Kentucky offered an additional persuasive rationale for excluding counterclaim damages from the determination of the amount in controversy in the removal context:
[E]xamination of the statutory provisions pertaining to diversity jurisdiction furnishes an indication that it was not the intent of [C]ongress that a counterclaim be added to what was sought in the complaint to arrive at the amount in controversy. 28 U.S.C.A. § 1332(b) provides that if the plaintiff who files the case recovers less than the minimum jurisdictional amount, the costs of the action may be assessed against him. There is no correlative provision placing liability for costs on the defendant where the case qualifies for federal jurisdiction on the basis of a counterclaim greater than the minimum jurisdictional amount. *630 28 U.S.C.A. § 1446(b) provides a time limitation of twenty days from the date that defendant receives the initial pleading for the filing of a petition for removal. It also provides that where the case stated by the initial pleading is not removable, the defendant may file his Petition for removal within twenty days, after the receipt of an amended pleading that does state a removable case. There is no corresponding provision for the case where federal jurisdiction requirements first appear in pleadings by the defendant.
The latter section was brought to the fore in [an S.D. Iowa case], but the court held that it merely prescribed a technique for effectuating removal and was not intended to substantially modify the jurisdictional qualifications. This court agrees that the features of this section alluded to above [28 U.S.C. § 1446] are not meant to circumscribe jurisdiction over diversity cases but they are nevertheless evidence that Congress did not contemplate that pleadings other than the complaint would determine the amount in controversy.
Rudder v. Ohio State Life Ins. Co., 208 F.Supp. 577, 578-79 (E.D.Ky.1962) (paragraph break added).
For the foregoing reasons, the court declines to consider the damages sought by DeLorenzo's counterclaim when determining the amount in controversy. Looking only to the damages sought by the complaint, the court finds, to a legal certainty, that CMS cannot recover more than the required $75,000 (exclusive of interest and costs) under the claims and prayers for relief stated in its complaint alone. Thus, this case could not have been brought originally in federal district court, and it was not eligible for removal to this court.
B. Nonetheless, CMS is Not Entitled to Attorney Fees and Costs
CMS seeks an award of attorney fees and costs under 28 U.S.C. § 1447(c), which provides, in pertinent part, "An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal."
The Supreme Court has held that this language imposes neither a bias in favor of remand fee awards nor a strong presumption against such awards: "The statutory language and context strike us as more evenly balanced . . .; we see nothing to persuade us that fees under § 1447(c) should either usually be granted or usually be denied." Martin v. Franklin Capital Corp., 546 U.S. 132, 138-39, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (Roberts, C.J., for a unanimous Court). Instead, "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied." Martin, 546 U.S. at 139, 126 S.Ct. 704 (citations omitted); see also Gentek Bldg. Prods., Inc. v. Steel Peel Lit. Trust, 491 F.3d 320, 332 (6th Cir.2007) (citing Martin).
CMS asserts, "In this matter, defendant's removal action was not `fairly supportable' as it simply assumed that it could rely on its own counterclaim to support the removal without examining the case law applicable in this circuit and district." CMS Br. at 4-5. That assertion is specious. CMS did not identify any binding precedent in support of its argument that counterclaim damages should be excluded when determining the amount in controversy for purposes of removal diversity jurisdiction, nor did this court locate any. Thus, while DeLorenzo's argument to the *631 contrary was ultimately unsuccessful, it was certainly not objectively unreasonable (relying, as it did, on Swallow & Associates, 794 F.Supp. 660 (E.D.Mich.1992), which was not appealed and has never been definitively criticized by our Court of Appeals). Accord Gulf-South Piling & Const., Inc. v. Traylor Bros., Inc., 1997 WL 332410, at *3 (E.D.La. June 12, 1997) ("Whether counterclaims should be considered for purposes of determining the jurisdictional amount is sufficient unsettled such that I find that defendants' removal petition [was] not objectively improper.").[5]
C. CMS's Failure to Follow Local Civil Rule 7.1(d)
DeLorenzo contends that CMS's failure to comply with Western District of Michigan Local Civil Rule 7.1 should bar consideration of the subject-matter jurisdiction issue. The court disagrees.
W.D. MICH. L. CIV. R. 7.1(d) provides, in pertinent part, "With respect to all motions, the moving party shall ascertain whether the motion will be opposed. * * * All motions shall affirmatively state the efforts of the moving party to comply with the obligation created by this rule." DeLorenzo correctly points out that the word "shall" always means that the action in question is mandatory, not optional. See, e.g., U.S. v. Jones, 495 F.3d 274, 277 (6th Cir.2007) (Ryan, Griffin, & D.J. Hood) ("The statute calls for a mandatory (`shall order') competency hearing, and there was no room for a judicial shortcut."); Matovski v. Gonzales, 492 F.3d 722, 736 (6th Cir.2007) ("Likewise, the language found within 8 U.S.C. § 1154(j), `shall remain valid', is mandatory not discretionary.").
DeLorenzo's counsel has submitted an affidavit along with its brief in opposition to remand, stating that "Counsel for . . . CMS . . . never contacted me in any way prior to the filing of the Motion to Remand." DeLorenzo Br. at 10. CMS effectively concedes that it failed to consult opposing counsel before filing the remand motion, stating that it did so belatedly, "Since filing the motion and receiving Defendant's response, Plaintiff has, in good faith, attempted to obtain a concurrence." CMS Reply Br. at 1 (emphasis added). Accordingly, it appears that CMS violated our Local Civil Rule 7.1(d) by failing to consult opposing counsel before filing its remand motion.
Nonetheless, the court rejects DeLorenzo's suggestion that such a violation can justify ignoring the absence of subject-matter jurisdiction. While the requirement that a court have personal jurisdiction is a due process right that may be waived either explicitly or implicitly, Days Inns Worldwide v. Patel, 445 F.3d 899, 905 (6th Cir.2006) (Griffin, J.), "subject-matter jurisdiction is not subject to waiver or *632 forfeiture." Langley v. DaimlerChrysler Corp., 502 F.3d 475, 482-83 (6th Cir.2007) (emphasis added) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006)); see also Thomas v. Miller, 489 F.3d 293, 298 (6th Cir.2007) ("subject matter jurisdiction cannot be created where none exists") (citation omitted).
Not surprisingly, then, it is well-established that a court may raise the issue of subject-matter jurisdiction sua sponte. See Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 606-07 (6th Cir.2007) ("Because the standing issue goes to this Court's subject matter jurisdiction, it can be raised sua sponte.") (citation omitted); Travelers Indem. Co. v. Bowling Green Prof Assocs., 495 F.3d 266, 271 (6th Cir. 2007) ("Neither party raised jurisdictional issues in their appellate briefs. Nevertheless, we appropriately raised subject-matter jurisdictional issues at oral argument. . . .") (citing Ohio v. Doe, 433 F.3d 502, 506 (6th Cir.2006)). The absence of subject matter jurisdiction "`may be raised at any juncture because a federal court lacks authority to hear a case without subject matter jurisdiction.'" Klepsky v. UPS, Inc., 489 F.3d 264, 268 (6th Cir.2007) (quoting Thornton v. S.W. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir.1990)).
Not only may a court raise subject-matter jurisdiction sua sponte, it must. Clarke v. Mindis Metals, Inc., No. 95-5517, 99 F.3d 1138, 1996 WL 616677, at *3 (6th Cir. Oct. 24, 1996) ("Neither party has raised the jurisdictional issue this case presents, but it is axiomatic that we must raise issues of subject-matter jurisdiction sua sponte.") (emphasis added) (citing Cmty. First Bank v. Nat'l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir.1994)).
Thus, even if CMS had never filed a motion for remand, this court would have the right and obligation to ascertain whether it had subject-matter jurisdiction. See Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir.1995) ("We hold, therefore, that there is a distinction in the statute [28 U.S.C. § 1447(c)] between defects in removal procedure, which are waived unless raised in a plaintiff's motion within thirty days after removal, and lack of subject matter jurisdiction, which requires the court to remand at any time prior to final judgment.") (emphasis added).[6] If the filing of a remand motion is not a prerequisite for this court to consider whether there is subject-matter jurisdiction, a fortiori the plaintiff's compliance with a local rule in connection with the filing of such a motion cannot be a prerequisite for this court to consider the issue. For these reasons, CMS's apparent noncompliance with Local Civil Rule 7.1(d)'s consultation requirement does not prevent this court from considering the issue of subject-matter jurisdiction and concluding that such jurisdiction is lacking.
ORDER
For the foregoing reasons, the court GRANTS the plaintiff's motion to remand [docket # 6-1] and REMANDS this case to the Circuit Court of Kent County, Michigan pursuant to 28 U.S.C. 1447(d) for lack of subject-matter jurisdiction.
*633 The court DENIES the plaintiff's 28 U.S.C. § 1447(c) request [docket # 6-2] for an award of attorney's fees and costs incurred as a result of the removal.
This case is TERMINATED.
This is a final order, but the portion of the order that remands this case to state court is not appealable. See Dunch v. Nat'l Union Fire Ins. Co. of Pa., 43 Fed.Appx. 918, 920 (6th Cir.2002) (28 U.S.C. "[s]ection 1447(d) `prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ.'") (quoting Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)); Sweeney v. Nat'l Union Fire Ins. Co., 38 Fed.Appx. 296, 297 (6th Cir.2002) ("Title 28 U.S.C. § 1447(d) bars review of remand orders to state courts when the order `fall[s] into either category of remand order described in § 1447(c) . . . lack of subject-matter jurisdiction or defects in removal procedure.'") (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)).[7]
The portion of the order that denies the plaintiff's request for attorney fees and costs is appealable. See, e.g., Shafizadeh v. BellSouth Mobility LLC, 189 Fed. Appx. 410 (6th Cir.2006) (affirming district court's denial of plaintiff's remand fee request).
NOTES
[1] See Choice Hotels Int'l, Inc. v. Shiv Hospitality, LLC, 491 F.3d 171, 176 n. 4 (4th Cir. 2007) ("Because the amount in controversy requirement was satisfied under Choice Hotels' complaint, we need not, and do not, address whether the amount in controversy could have been satisfied based on . . . Shiv's counterclaim. . . ."); R.J. Jordan Oil Co. of NC, Inc. v. Boardman Petroleum, Inc., 23 Fed. Appx. 141, 145 (4th Cir.2001) ("it appears, although we have not decided, that Boardman's counterclaim may not be used in calculating the amount in controversy") (citing 14B Wright & Miller, Fed. Prac. & Proc. § 3725 (3d ed. 1998) ("The traditional rule has been that no part of the required jurisdictional amount can be met by considering a defendant's counterclaim."));
State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1271 (10th Cir.1998) ("We need not decide whether the value of an insufficient counterclaim can be added to the value of an insufficient claim to calculate the amount in controversy.") (finding that defendant abandoned counterclaim because it failed to specify facts underlying the claim, failed to conduct discovery regarding the claim, and did not offer argument in support of the counterclaim in its summary-judgment or appellate briefs, and defense counsel conceded at appellate oral argument that the counterclaim was "somewhat trivial" and "really was calculated to allow the district court to hear the case").
Federated Mut. Ins. Co. v. McKinnon Motors LLC, 329 F.3d 805, 808 (11th Cir.2003) ("We assume, without deciding, that Federated can meet the amount in controversy by McKinnon's [counter]claim for bad faith. Taking this assumption into account, we turn to the question of whether Federated has satisfied its burden of proving that its claims are in excess of $75,000. We hold that it has not.") (footnote omitted).
[2] The Third and Ninth Circuits have held that counterclaims may be considered in determining the amount in controversy in certain circumstances, but those circumstances are not present here. The Third Circuit wrote as follows:
Lincoln, in answering the complaint, asserted a $675,000 compulsory counterclaim. Such counterclaims may be considered for purposes of calculating the amount in controversy. See, e.g., Spectacor Mgmt, Group v. Brown, 131 F.3d 120, 121 (3d Cir.1997) (holding [that] where defendant "elects not to file a motion to dismiss for lack of jurisdiction, but answers a complaint by asserting a compulsory counterclaim, the amount of that counterclaim may be considered by the court in determining if the amount in controversy exceeds the statutory requirement for diversity jurisdiction").
Northland' Ins. Co. v. Lincoln Gen. Ins. Co., 153 Fed.Appx. 93, 94 n. 1 (3d Cir.2005). Accord Fenton v. Freedman, 748 F.2d 1358, 1359 (9th Cir.1984) ("In Roberts Mining & Milling Co. v. Schrader, 95 F.2d 522 (9th Cir.1938), we stated that a counterclaim that exceeded the necessary amount in controversy was sufficient to bring the entire case within the jurisdiction of the district court, `regardless of the lack of jurisdictional averments in the bill of complaint.'").
Unlike the Third Circuit's Northland and Spectacor Management and the Ninth Circuit's Fenton and Roberts, the instant case was removed from state court rather than originally filed in federal court and so implicates federalism and comity considerations that were not present there. See Firestone Fin. Corp. v. Syal, 327 F.Supp.2d 809 (N.D.Ohio 2004):
Fenton, however, involved a case that was originally filed in federal court as opposed to one that was there based on the federal court's removal jurisdiction. As the Third Circuit explained in Spectacor Management Group v. Brown, this distinction is significant because `removal is governed by considerations inapplicable to cases involving the exercise of original jurisdiction.' Regardless of the persuasive value of Fenton and Spectacor in other contexts, they provide no support for [the] proposition that a case is properly removed if a compulsory counterclaim exceeds the amount in controversy.
Id. at 811 n. 2 (internal citation omitted).
Accord Al-Cast Mold & Pattern, Inc. v. Perception, Inc., 52 F.Supp.2d 1081, 1083 (D.Minn.1999) (holding that a compulsory counterclaim may not be used to satisfy the amount in controversy needed for a diversity removal) ("[T]he inclusion of counterclaims to meet the jurisdictional amount disturbs not only the statutes that define federal jurisdiction, but also the authority granted by Article III. The Eighth Circuit recognizes that `diversity jurisdiction in removal cases is narrower than if the case was originally filed in federal court by the plaintiff.'") (quoting Hurt v. Dow Chem. Co., 963 F.2d 1142, 1145 (8th Cir.1992)) (emphasis added).
[3] In Home Life Ins. Co. v. Sipp, 11 F.2d 474 (3d Cir.1926), issued before the adoption of the Federal Rules of Civil Procedure, the Third Circuit wrote
[C]ourts have said that, "when the jurisdictional amount is in question, the tendering of a counterclaim in an amount which in itself, or added to the amount claimed in the petition, makes up a sum equal to the amount necessary to the jurisdiction of this court, jurisdiction is established, whatever may be the state of the plaintiff's complaint."
Id. (quoting American Sheet & Tin Plate Co. v. Winzeler, 227 F. 321, 324 (N.D.Ohio 1915)): Even a district court within the Third Circuit, however, recently refused to follow Sipp, noting that Sipp cited merely a district court decision as authority and that Sipp merely stated "courts have held . . ." rather than expressly adopting that view. See Windsor Mt. Joy Mut. Ins. Co. v. Johnson, 264 F.Supp.2d 158 (D.N.J.2003) (seeming to characterize Sipp statement as dictum and distinguishing Sipp on its facts).
[4] Cf. Glover Mach. Works v. Cooke Jellico Coal Co., 222 F. 531 (E.D.Ky.1915) (at a time when the federal removal statute required $3,000 in controversy, a non-resident plaintiff who sued in state courts for less than $3,000 could not use the defendant's filing of a $3,000-plus counterclaim as a basis for removal);
Illinois Cent. R. Co. v. A. Waller & Co., 164 F. 358 (W.D.Ky.1908) (at a time when the federal removal statute required $2,000 in controversy, court held that a state-court plaintiff seeking less than $2,000 does not constructively become a defendant (and thus entitled to remove) on the basis of the defendant's $2,000-plus counterclaim).
[5] See also Kennedy v. Health Options, Inc., 329 F.Supp.2d 1314, 1319 (S.D.Fla.2004) ("Defendant's decision to attempt removal was an objectively reasonable one where there is some basis in the law for Defendant's arguments and there is no binding Eleventh Circuit law to the contrary. Therefore, the Court denies Plaintiff's request for attorneys' fees.") (citation omitted);
Weigert v. Georgetown Univ., 43 F.Supp.2d 5, 6 (D.D.C.1999) ("[T]here is conflicting case law on this issue throughout the federal courts, and in the absence of a decision to the contrary by the D.C. Circuit, this court is reluctant to conclude that the nonremovability of this case was obvious to the defendant. Accordingly, the court will deny the plaintiff's motion for fees and costs.");
Roberts v. American Nat'l Red Cross, No. 90-6737, 1991 WL 80345, at *3 (E.D.Pa. May 13, 1991) (granting remand but denying plaintiff's request for fees and costs and stating, "Although there is a clear majority of opinion in this District holding that there is no subject matter jurisdiction in cases such as this one, the courts throughout the nation are evenly split on this subject and there is no binding precedent in this Circuit.").
[6] See, e.g., Wilhite v. City of Richmond, Ky., No. 5:07-cv-111, 2007 WL 2020244 (E.D.Ky. July 6, 2007) (Hobd, J.) (sua sponte remanding case to state court and declining to rule on defendant's motion to dismiss for lack of standing and failure to state a claim);
Spot Realty, Inc. v. Siegel, No. 05-71229, 2005 WL 1345752, at *2 (E.D.Mich. June 2, 2005) (Cook, J.) ("In all removal actions, a federal court has the authority to sua sponte remand the case to a state court if it lacks subject matter jurisdiction. Therefore, the Court will continue to closely monitor this litigation to determine if it has subject matter jurisdiction over the issues in this case") (internal citation omitted).
[7] There are three exceptions to the rule that remand orders are not appealable, but none of the exceptions applies here. First, "[a] limited exception . . . exists when a remand order is `based on a substantive decision on the merits of a collateral issue as opposed to just matters of jurisdiction.'" Godsey v. Miller, 9 Fed.Appx. 380 (6th Cir.2001) (per curiam) (quoting Regis Assocs. v. Rank Hotels (Mgmt.), Ltd., 894 F.2d 193, 194 (6th Cir. 1990)). That exception does not apply here, because the instant remand order is based solely on the lack of subject-matter jurisdiction.
Second, 28 U.S.C. § 1447(d) provides that a a party may appeal a remand order if he removed the case from state court under the civil-rights statute 28 U.S.C. § 1443. DeLorenzo did not remove this case from Michigan state court under that statute.
Third, "§ 1447(d) precludes appellate review if the district court found that subject matter jurisdiction was lacking at [the] time of removal and remanded the case on that basis. In contrast . . . if the district court found that subject matter jurisdiction was lacking as a result of a circumstance arising after removal from state court, § 1447(d) does not preclude appellate review of the district court's remand order." SHR Ltd. P'ship v. SWEPI, LP, 173 Fed.Appx. 433, 437 (6th Cir. 2006) (discussing Davis v. Int'l Union, 392 F.3d 834, 837 (6th Cir.2004)); see also Da-Walt v. Purdue Pharma, LP, 397 F.3d 392, 401-02 (6th Cir.2005) (clarifying how narrow this exception is). The instant order remands the case based on this court's determination that subject matter jurisdiction was lacking at the time of removal.
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694 F.2d 725
***Eisenbergv.Schweiker
82-5508
UNITED STATES COURT OF APPEALS Eleventh Circuit
12/2/82
1
S.D.Fla.
AFFIRMED
*
Fed.R.App. P. 34(a); 11th Cir. R. 23
**
Local Rule: 25 case
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832 F.2d 876
1988 A.M.C. 913
Carmen Rosa Josefa Gomez Sanchez Vda De GONZALEZ, Plaintiff-Appellee,v.NAVIERA NEPTUNO A.A., and El Kollao, Defendants-Appellants.
No. 86-2138.
United States Court of Appeals,Fifth Circuit.
Nov. 25, 1987.
Derek Walker, Ken Servay, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., Kent M. Adams, Brown & Adams, Tower, Beaumont, Tex., for defendants-appellants.
Richard L. Tate, Young, Cook & Hampton, Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before BROWN, RANDALL, and HIGGINBOTHAM, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
1
Our opinion in this case has been held pending the en banc decision of this court in In Re: Air Crash Disaster near New Orleans, 821 F.2d 1147 (5th Cir.1987). Air Crash expressly overruled a long line of forum non conveniens cases decided by this Court in admiralty and maritime matters. 821 F.2d at 1162-63 n. 25. Bound by the decision of the en banc court that there is no need for a different analysis in maritime cases, the outcome of this case is predicated upon the dictates of Air Crash.
2
There are two separate problems presented by this case: (i) choice of law, and (ii) choice of forum. The central issue presented is whether the wrongful death claims of the Peruvian survivors of a Peruvian sailor killed in the United States while serving on a Peruvian flag vessel, owned by Peruvian citizens, under articles prepared pursuant to a Peruvian collective bargaining agreement should be tried in a United States court. Following Air Crash, and finding no basis for the conclusion of the lower court that the United States was a more convenient forum, we reverse.
Stranger in a Strange Land
3
Carmen Gonzalez filed suit against Naviera Neptuno (Neptuno), owner of M/V EL KOLLAO, under the Jones Act and general maritime law seeking damages for the death of her son, Fernando Gonzalez-Sanchez, who was killed in Port Arthur, Texas, while serving as a seaman aboard M/V EL KOLLAO. Fernando and his mother were Peruvian citizens and residents. Fernando signed Peruvian shipping articles in Peru to sail aboard EL KOLLAO on a voyage beginning and ending in Peru. Fernando joined EL KOLLAO, in Callao, Peru, the vessel's home port. He was employed under a contract signed pursuant to a Peruvian collective bargaining agreement, binding all Peruvian shipping companies and seamen. All crew members signing aboard Peruvian flag vessels are bound by Peruvian law to settle any and all disputes arising from employment related torts in a Peruvian court of law.
4
Neptuno is a Peruvian shipping company which maintains no offices or general agents in the United States. Neptuno is fully owned by residents of countries other than the United States; its president is a citizen and resident of Peru. Except for calls made by its vessels to ports in the United States, Neptuno has no business dealings or operations in this country. As a shipping company involved in multi-national trade, Neptuno's vessels carry cargo to and from the United States as well as to and from ports in Mexico, Panama, Colombia, Chile, Venezuela and Peru. Typically, Neptuno's vessels begin and end their voyages in Peru. Between 1981 and 1984, approximately 11.46% of the cargo carried was cargo destined for the United States.
5
Gonzalez filed suit against Neptuno in Beaumont, Texas. Neptuno filed motions challenging the jurisdiction of the federal court and seeking dismissal on the grounds of forum non conveniens. The trial court initially ordered that the motions be considered at the time of trial, but they were eventually considered on briefs one month prior to trial. Because of the pending jurisdictional motions, Neptuno conducted virtually no discovery on the merits prior to the disposition of these motions.
6
The District Court denied Neptuno's motions without written reasons. Neptuno sought certification for interlocutory appeal under 28 U.S.C. Sec. 1292(b). The certification motion was denied and Neptuno immediately filed a petition for a writ of mandamus which was denied by this court. Neptuno's motion for reconsideration was also denied on July 1, 1985.
7
On July 18, 1985, the District Court set a trial date of August 29, 1985. This order gave the parties approximately six weeks to complete discovery on the merits, discovery Neptuno had not yet begun. The difficulty in arranging numerous depositions in Peru prompted Neptuno to seek a continuance of the trial date. This was denied and Neptuno had to go to trial without the benefit of the testimony of several fact witnesses.
8
After Gonzalez presented her case, the District Court ordered that the trial be recessed for approximately one month, after which time the evidence would be concluded. During the recess, Neptuno would be permitted to take no more than four depositions and would be required to pay the expenses of plaintiff's counsel for any depositions taken in any place other than Beaumont. At this time, more than twenty depositions had been noticed, primarily of Peruvian citizens, but not yet taken.
9
Although this was a dispute between two Peruvian citizens, Neptuno was essentially precluded from taking discovery in Peru because of the time limitations imposed and the order requiring Neptuno to pay all expenses of plaintiff's counsel for depositions taken outside of Beaumont, Texas. Many, if not all, of the fact witnesses in this case were outside the jurisdiction of the Texas District Court. Neptuno had no means to compel the testimony of those witnesses residing in Peru.1
10
Mrs. Gonzalez filed suit against Neptuno on April 12, 1984. The case went to trial on August 29, 1985, less than eighteen months later. We do not pass on the reasonableness of Neptuno's failure to commence discovery prior to the resolution of the jurisdictional motions. Suffice it to say that we recognize the difficulties inherent in obtaining foreign discovery.
11
Air Crash directs us away from the tortuous detours taken in recent years by maritime jurisprudence back to the straight and narrow (or straighter and narrower) path set out by Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and Piper Air Craft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Although the plaintiff's choice of forum should not ordinarily be disturbed, the doctrine of forum non conveniens permits a court to resist imposition upon its jurisdiction even when subject matter jurisdiction is conferred by statute or personal jurisdiction is conferred by minimum contacts or consent. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062.
12
In determining whether a particular forum is appropriate, the court is required to balance the private interests of the litigants as well as the public interests of the chosen forum. The private interests to be considered include: (i) relative ease of access to sources of proof; (ii) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (iii) possibility of view of premises, if a view would be appropriate to the action; (iv) all other practical problems that make trial of a case easy, expeditious and inexpensive; and (v) enforceability of a judgment if one is obtained. Gilbert, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062.
13
The public interest factors include: (i) the administrative difficulties flowing from court congestion; (ii) the local interest in having localized controversies resolved at home; (iii) the interest in having the trial of a case in a forum that is familiar with the law that governs the action; (iv) the avoidance of unnecessary problems and conflicts of law, or an application of foreign law; and (v) the unfairness of burdening citizens in an unrelated forum with jury duty. Gilbert, 330 U.S. at 510, 67 S.Ct. at 843, 91 L.Ed. at 1063; Air Crash, 821 F.2d at 1162-63. No single factor should be given conclusive weight and a plaintiff's initial choice of forum should be respected, as much as possible.
14
Applying those factors in this case, we have no difficulty in determining that the United States was not the most convenient forum. With regard to the private interests of the litigants, the overwhelming majority of the witnesses reside in Peru. Gonzalez is a resident and citizen of Peru, Neptuno is a Peruvian corporation, and M/V EL KOLLAO is a Peruvian flag vessel. The decedent was a Peruvian citizen, his contract of employment was signed in Peru pursuant to a Peruvian collective bargaining agreement. The contract itself stated that parties to the contract would be governed by Peruvian law with regard to any tort claims.
15
Certainly with respect to whether Mrs. Gonzalez or the mother of Fernando's child was the proper party to bring this suit, and with regard to whether either suffered any compensable loss, these issues were dependent on testimony and evidence located in Peru. It is obvious to this court that insofar as ease of access to sources of proof is concerned, the balance weighs heavily in favor of trial in Peru. The only fact witness not readily available in Peru is the Beaumont police officer who investigated the accident. Although only a minor witness, his deposition and trial testimony are both available for use in Peru if necessary.
16
Although Gonzalez claims that Neptuno was dilatory in its discovery activities, the obvious difficulties associated with arranging depositions of non-English speaking foreign citizens in a foreign country are apparent. The attorneys in this case are all American lawyers. It is unlikely that the numerous depositions which needed to be taken of Peruvian citizens could be taken without translators. The cost of transporting these witnesses to the United States for trial testimony would likewise be prohibitive, not to mention the additional cost of translators in the United States.
17
Neptuno has no corporate offices, bank accounts or permanent employees stationed in the United States. Unlike enforcing a Peruvian judgment in Peru, there would be considerable difficulty in enforcing an American judgment obtained against Neptuno in the United States. In sum, the private interests weigh strongly in favor of the defendant and a dismissal of this suit under the doctrine of forum non conveniens.
18
As no one set of factors is conclusive, we also address the factors of public interest. The administrative difficulties associated with trying a case in a forum located thousands of miles away from the majority of the witnesses and the evidence are obvious. The difficulties in obtaining witnesses and costs of transporting witnesses and attorneys back and forth between the United States and Peru tend to contribute to delays in trial preparation. Although the State of Texas has an interest in maintaining safe conditions on board vessels temporarily docked in Texas, that interest can be easily protected by the plaintiff who is bent on making the defendant pay for the unsafe conditions on board the vessel.
19
Choice of Law--Peruvian or American?
20
Although Air Crash rejected our maritime approach which fixed choice of law as the predominate, if not the exclusive factor, choice of law is still an important consideration. Certainly it is relevant in determining the public interests at stake.2 As reflected by Lauritzen and that great body of law in all American maritime circuits in which a foreign seaman sues for injury in an American court, the immediate, frequently decisive, question is what law controls, American or foreign? A simple answer to this underlying question is: foreign law applies because American law clearly does not. In fathoming that juridical riddle there can be no doubt that a federal district court is better suited than a foreign forum to determine the law of the United States, and by reaching that conclusion the federal court is spared the task of divining the law of the foreign state. By the same token, a foreign forum is better qualified than an American court to determine the application of foreign law. As this is an admiralty case in an American court, the choice of law is determined by the Lauritzen-Rhoditis test.3
21
Lauritzen-Rhoditis sets out eight factors which govern the choice of law analysis:
22
(i) the place of the wrongful act;
23
(ii) the flag of the vessel;
24
(iii) the domicile of the seamen;
25
(iv) the allegiance of the shipowner;
26
(v) the place of contract;
27
(vi) the accessibility of the foreign forum;
28
(vii) the law of the forum; and
29
(viii) the defendant's base of operations.
30
Lauritzen, 345 U.S. at 583-93, 73 S.Ct. at 928-934, 97 L.Ed. at 1268-73; Rhoditis, 398 U.S. at 308-09, 90 S.Ct. at 1733-34, 26 L.Ed.2d at 255-56. Analysis of these factors compels the conclusion that Peruvian law is applicable.
31
(i) The wrongful act here occurred in Port Arthur, Texas. This is the only meaningful contact with the United States or with the State of Texas. (ii) EL KOLLAO is a Peruvian flag vessel. (iii) Fernando Sanchez was a citizen, resident and domiciliary of Peru. (iv) Neptuno is a Peruvian corporation, owned by Peruvian citizens. (v) Fernando's employment contract was signed in Peru, pursuant to a Peruvian collective bargaining agreement binding all Peruvian sailors and flag vessels. (vi) A Peruvian forum would be infinitely more accessible than a forum in Beaumont, Texas, as the plaintiff and the majority of the fact witnesses are Peruvian citizens. (vii) Gonzalez filed suit in Texas because the law of the forum, the Jones Act and general maritime law, provides greater recovery than would Peruvian law. Reyno has stated explicitly, however, that the mere fact that the substantive law of one forum is more favorable than that of another is not to be dispositive, and in fact should not be given substantial weight.4
32
Since determination of the important question of whether American law does or does not apply turns substantially on Lauritzen-Rhoditis, the base of operations of the defendant may sometimes be decisive. There is simply no factual basis for the District Court's conclusion that Neptuno maintained a base of operations in the United States. The mere fact that Neptuno vessels carried some cargo for delivery to the United States and occasionally called at ports in the United States to pick up out-bound cargo does not justify a finding of an American base of operations. Neptuno was legitimately a Peruvian corporation, flying the Peruvian flag. This was not a situation where a sham corporation was founded in one country and vessels registered under that flag in order to obtain economic advantages. Nor is it one in which foreign principals maintain a residence in the United States, directing and controlling operations of the company's vessels worldwide. Neptuno's base of operations was certainly not in Beaumont, Texas nor anywhere in the United States.
33
Under Lauritzen, the appropriate law would be that of Peru. The fact that foreign, not American, law is applicable gives further weight to the conclusion that Peru is the most convenient forum for this litigation.
34
Our analysis of the Gilbert, Reyno and Lauritzen-Rhoditis factors leads inexorably to the conclusion that the District Court erred in refusing to grant Neptuno's motion to dismiss for forum non conveniens. However, to once again discourage the necessity for a fresh analysis of the record at the appellate level, we reiterate the requirement of Air Crash that the District Court set out clearly (either formally or stated on the record) its detailed findings and conclusions supporting or denying such a motion to dismiss. Consistent with our respective roles, it is not the function of the Court of Appeals to initially perform a de novo resolution of forum non conveniens issues. Air Crash, 821 F.2d at 1166 n. 32. Although the District Court, in denying Neptuno's motion to dismiss, did not have the benefit of our guidance in Air Crash and did not give written reasons, sufficient information for our analysis was available in the findings of fact and conclusions of law issued following trial on the merits.
35
What has happened here demonstrates why we are so insistent that the trial court carefully state in detail why the motion to dismiss on forum non conveniens is granted or denied. The denial of a motion to dismiss for forum non conveniens is not a final order under 28 U.S.C. Sec. 1291, and therefore is not immediately appealable. Partrederiet Treasure Saga v. Joy Manufacturing Co., 804 F.2d 308, 309-10 (5th Cir.1986). Neptuno sought certification for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b), which the trial court denied. Neptuno's sole avenue for review was then a petition for mandamus from this court with all of the strict limitations of that procedure, plus again the total absence of reasons why the judge did what he did. We denied the writ resulting in the trial and findings on which we could responsibly act.
36
Although the fact that a trial on the merits has occurred is a factor meriting consideration in determining whether the trial court abused its discretion in refusing to grant the motion to dismiss we believe Neptuno has shown sufficient prejudice to warrant vacating that judgment and, in effect, transferring the case to Peru. Neptuno has demonstrated the difficulties associated with obtaining foreign witnesses or their deposition testimony. To the admonition of Air Crash to put on the record adequate detailed reasons for action in granting or denying motions to dismiss forum non conveniens, we would add that trial judges should be hospitable to applications for Interlocutory Appeals under 28 U.S.C. Sec. 1292(b).5
37
Applying the above principles and standards, we conclude that the District Court abused its discretion in denying Neptuno's motion to dismiss for forum non conveniens. Consequently, the judgment must be reversed. Both private and public interests weigh heavily in favor of a Peruvian forum, applying Peruvian law. A remand is necessary to impose the usual conditions on the dismissal order. In fashioning an appropriate order of dismissal, we suggest that the District Court give consideration to conditioning the dismissal on the following:6 (i) that Neptuno submit to service of process and jurisdiction in the appropriate Peruvian forum, (ii) in which Gonzalez shall file suit within 90 days of the order of dismissal; (iii) that Neptuno shall formally waive in the Peruvian proceeding any statute of limitations defense that has matured since the commencement of this action in the Eastern District of Texas; (iv) that Neptuno formally agree to make available in Peru all relevant witnesses and documents within its control; (v) that Neptuno formally agree to satisfy any final judgment rendered by the Peruvian court; and (vi) that should Neptuno fail to promptly satisfy any of these conditions, the District Court will resume jurisdiction.7
38
REVERSED AND REMANDED.
1
Neptuno sought to prove, among other things, that Mrs. Gonzalez was not the proper party to bring this action as Fernando had an illegitimate child. The child's mother refused to come to the United States to testify, nor would she agree to have her deposition taken
2
See Gilbert. "There is an appropriateness, too, in having the trial of a ... case in a forum that is at home with the ... law that must govern the case, rather than having a court in some other forum untangle problems in conflicts of laws, and in law foreign to itself." 330 U.S. at 509, 67 S.Ct. at 843, 91 L.Ed. at 1063; so it is in Reyno. "Consideration of these [choice of law] problems was clearly appropriate under Gilbert; in that case we explicitly held that the need to apply foreign law pointed toward dismissal." 454 U.S. at 260, 102 S.Ct. at 268, 70 L.Ed.2d at 438. This was of recurring concern in Air Crash, which determined that "the public interest factors include ... the avoidance of unnecessary problems in conflicts of law or in application of foreign law ..." 821 F.2d 1163. See generally id. at 1153 n. 9. "We agree with the District of Columbia Circuit when it stated that '... a trial court has discretion to grant forum non conveniens dismissal upon finding that ... foreign law will predominate if jurisdiction is retained,' " 821 F.2d at 1165-66, (quoting Pain v. United Technologies, 637 F.2d 775, 792 (D.C.Cir.1980))
3
Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Hellenic Lines v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). Although a federal court customarily applies the forum's choice of law analysis, sitting in admiralty, we apply admiralty choice of law. Due to the multi-national character of most maritime ventures, the forum in which suit is brought is quite often unrelated to either the litigants or the action in any meaningful way. Use of Lauritzen contributes to the uniformity of maritime jurisprudence
4
Reyno recognized the problem of increasing the attractiveness of our already overcrowded courts to foreign plaintiffs. Additionally, there are substantial practical problems associated with weighing the differences between the laws of two sovereigns. 454 U.S. at 251-52, 102 S.Ct. at 263-64, 70 L.Ed.2d at 432-33. See also Air Crash, 821 F.2d at 1163 n. 25
5
We recognize the decision to certify is, however, within the considered discretion of the trial judge and as the court indicated in Air Crash, we cannot direct that all forum non conveniens issues be certified. The district courts should bear in mind, however, that pretrial certification of this issue not only obviates a possible useless trial, but affords an effective review by this court
6
The conditions imposed by the order of dismissal are within the discretion of the District Court. These considerations are only suggestions, and the District Court is free to add other conditions or to modify those suggested here. Diaz v. Humboldt, 722 F.2d 1216, 1219 n. 1 (5th Cir.1984)
7
See Diaz, 722 F.2d at 1219; Vaz Borralho v. Keydril, 696 F.2d 379, 394-95 (5th Cir.1983)
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352 So.2d 91 (1977)
William Edward BOSWELL, Sr., Appellant,
v.
Betsy Marie BOSWELL, Appellee.
No. 76-2728.
District Court of Appeal of Florida, Fourth District.
July 22, 1977.
S. Robert Zimmerman and William F. Sullivan, Pompano Beach, for appellant.
No appearance for appellee.
PER CURIAM.
Upon consideration of the record and brief of appellant, appellee having failed to provide the court with a brief, we determine the order of the trial court bearing date December 14, 1976 modifying alimony and adjudicating property rights to be void in its entirety for lack of the trial court to provide for alimony in the final judgment of dissolution of marriage or reserve jurisdiction for future determination. Weiss v. Weiss, 118 So.2d 833 (Fla.3d DCA 1960). The change of property rights is also void for lack of jurisdiction. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948). Accordingly, the order bearing date December 14, 1976 is reversed.
Reversed.
CROSS and DAUKSCH, JJ., concur.
ANSTEAD, J., concurs in conclusion only.
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396 S.W.2d 532 (1965)
Frank E. SCOTT, Appellant,
v.
Anthony WILSON, Appellee.
No. 14417.
Court of Civil Appeals of Texas, San Antonio.
November 3, 1965.
Rehearing Denied December 1, 1965.
*533 Earle Cobb, Jr., San Antonio, for appellant.
Groce, Hebdon, Fahey & Smith, Thomas H. Sharp, Jr., San Antonio, for appellee.
MURRAY, Chief Justice.
This suit was instituted by Frank E. Scott against Dr. Anthony Wilson for malpractice in performing, on his left ear, an operation known as stapedectomy with vein graft. The trial began to a jury, but when Scott rested his case the trial court gave an instructed verdict that plaintiff take nothing, and Scott has prosecuted this appeal.
The main question presented in this case is whether Dr. Wilson reasonably and adequately informed Scott of the dangers and hazards to be anticipated from the stapedectomy operation so as to prepare him to give a knowledgeable consent to the operation.
This was not an emergency operation which had to be performed to preserve Scott's life or health. Scott was not unconscious at the time so as to be unable to give consent. Such operation was an elective operation which Scott might decide to have or not to have. He had impaired hearing in his left ear, but was able to improve his hearing by the use of a hearing aid. He could choose to have the operation or to continue with the use of his hearing aid.
Under such circumstances, when Scott went to Dr. Wilson to discuss the operation, it was the doctor's duty to inform him of the nature of the operation, the processes contemplated, and the dangers and hazards of the operation and the chances of restored hearing, so as to enable Scott to determine whether he wanted to risk the operation or to live with his impaired hearing. The doctor was under a duty to make full disclosure of these things and not to minimize them. He should not mislead anyone as to his skill and ability to perform the operation.
In some respects Scott and Dr. Wilson agree as to what was said and done on the occasion of their conference, and in some respects they disagree. Scott says that when he called at Dr. Wilson's Office on the occasion in question Dr. Wilson gave him an examination covering some forty-five minutes. The doctor went over the nature of the operation with him and apparently explained it fully. This seemed to be good and well, but Scott says that the doctor misled him when he said that with an ideal patient like him "we" have 90% success and 10% in which the hearing is not improved or made worse. The doctor says that he went further and said in 1% the hearing is entirely lost. Scott says that he was not told about the one percent. This is important because Scott entirely lost the hearing in his left ear. Scott says that by the use of the word "we" he understood that the doctor had performed the stapedectomy operation before, while in truth and in fact this was the doctor's first stapedectomy operation. *534 Scott says he further told him the operation would be performed at the Baptist Hospital because he had his equipment and a trained crew there. Scott says this caused him to further believe the doctor was experienced in performing this operation. Scott states he asked the doctor what the risk of disability was, and was told there was no risk other than that always connected with anesthetics. It is possible that Scott had one thing in mind and the doctor another. Scott says the operation was a failure and resulted in (1) the complete loss of hearing in the left ear, (2) tinnitus, (3) recurring periods of vertigo, (4) recurring dizziness and loss of balance, (5) loss of taste, (6) other nervous disorders. When the doctor, while on the witness stand, was asked what bad effects a patient might have as a result of the stapedectomy, he replied: "Well, he can lose his hearing; he can get meningitis; he can die. * * * Everyone has vertigo following this operation, temporarily. * * * some people get tinnitus. * * * In elderly individuals this (instability or a dizziness) is an occasional occurrence." The doctor stated he knew these things when he operated on Scott. He further testified that he probably told Scott about the taste problem, Scott says he might have.
The evidence shows that the doctor was by education, training and experience a very skillful ear surgeon, and had performed many ear operations other than stapedectomy. He had studied the operation under some of the best authorities and had performed the operation some ten or fifteen times upon cadavers, but never before upon a live person.
The above statement is not complete in every respect, but we feel it is sufficient to show the situation at the time the trial court gave the defendant below an instructed verdict in his favor.
There was a fact issue raised here upon conflicting testimony as to whether Dr. Wilson made a full disclosure of the risk, dangers and outcome probabilities of the stapedectomy operation, and therefore the trial court should not have granted the instructed verdict in appellee's favor. We find no authorities in this State directly in point, but there are authorities from other jurisdictions that are in point. Bowers v. Talmage (Bowers v. von Storch), Fla.App., 159 So.2d 888, wherein it is held that where there is no emergency the doctor is under a duty to adequately inform the patient as to the dangers to be anticipated as a result of the operation, and not to minimize them. Whether the doctor complied with that duty was there a question for jury determination.
In Russell v. Harwick, Fla.App., 166 So. 2d 904, the Court held that the doctor was negligent in failing to inform the patient as to the alternate methods of surgical treatment he contemplated, and in proceeding without the informed consent of the plaintiff.
In the very recent case of DiRosse v. Wein, 24 A.D.2d 510, 261 N.Y.S.2d 623, the Court said: "We are of the opinion that, under the facts and circumstances disclosed by this record, including the fact that no immediate emergency existed, defendant was obligated to make a reasonable disclosure to his patient of the known dangers which were incident to or possible in the proposed use of gold; and that the trial court, therefore, did not err in charging, in substance, that defendant could be found guilty of malpractice if he failed in that duty (cf. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied 187 Kan. 186, 354 P.2d 670; Mitchell v. Robinson, 334 S.W.2d 11 [Missouri])."
In Mitchell v. Robinson, Mo., 334 S.W.2d 11, the Supreme Court of Missouri said: "In the particular circumstances of this record, considering the nature of Mitchell's illness and this rather new and radical procedure with its rather high incidence of serious and permanent injuries not connected with the illness, the doctors owed their patient in possession of his faculties the duty to inform him generally of the possible serious collateral hazards; and in the *535 detailed circumstances there was a submissible fact issue of whether the doctors were negligent in failing to inform him of the dangers of shock therapy."
While Dr. Wilson was on the witness stand he was asked the following questions and gave the following answers relating to the stapedectomy operation, to-wit:
"Q. All right. I'll read further, `This type of surgery is not for the impatient surgeon or for the otologist with the occasional opportunity to perform this surgery.' Do you agree with that?
A. Yes
Q. Further down he says, `Never before have so many patients with otosclerosis been willing to accept the procedures that we are offering them today to improve their hearing. The unprecedented publicity regarding this operation in newspapers, magazines, radio, and television has left an impression in the minds of most people that the operation is infallible. The public has been educated to believe that modern science and ingenuity have solved their ills, and without risk. They need not be discouraged from assuming this risk, but they certainly should be aware of it.' Do you agree with that?
A. Absolutely.
Q. Is that your opinion?
A. Yes."
There can be no doubt that the stapedectomy operation perfomed on Scott was an elective operation and performed under such circumstances as to require of Dr. Wilson that he reasonably and adequately warn Scott of the known hazards and dangers that might probably be expected from such an operation, and the chances of favorable and unfavorable results to be contemplated.
The consent which Scott gave to have the operation performed is of no effect unless it was an informed and knowledgeable consent. There is no question here as to Scott's being injured and suffering damages as a result of the operation.
If Dr. Wilson did not have Scott's informed consent to operate upon him he would be guilty of assault and battery on Scott, and liable for the damages caused by the operation. Moss v. Rishworth, Tex. Com.App., 222 S.W. 225.
The court did not err in excluding the testimony of Meredith Mallory, Jr., because he failed to qualify as a medical expert.
The judgment of the trial court is reversed and the cause remanded for a new trial.
BARROW, J., not sitting.
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NOS. 12-12-00413-CR
12-12-00414-CR
12-12-00415-CR
12-12-00416-CR
12-12-00417-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID BURNETT WILLIAMS, § APPEALS FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
David Burnett Williams appeals his convictions for aggravated sexual assault of a child
under the age of fourteen. In three issues, he contends that the trial court abused its discretion in
admitting hearsay testimony from persons other than the ―outcry witness,‖ the error harmed him,
and the evidence is insufficient to support the award of court costs in each case. We modify the
trial court’s judgment, and affirm as modified.
BACKGROUND
Appellant was arrested and indicted in five separate cases in which the grand jury alleged
that he committed separate offenses of aggravated sexual assault of a child under the age of
fourteen. Appellant pleaded ―not guilty.‖ At a pretrial ―outcry witness‖ hearing, three witnesses
testified as to statements that the victim, Appellant’s stepdaughter, made to them concerning the
abuse. The three witnesses were the child’s mother, the child’s paternal aunt, and Jackie
Carvajal, a forensic interviewer at the Children’s Advocacy Center (CAC). Over Appellant’s
objection, the trial court determined that Carvajal was the first witness to whom the child relayed
the events of the abuse in sufficient detail, and therefore designated her as the proper outcry
witness at trial.
At the trial, the victim’s mother testified that the victim told her Appellant ―put his finger
in her pants and played with her middle part.‖ The mother also testified that when asked to
elaborate, the victim did not want to speak about the incidents in further detail. Because the
victim and her aunt had a close relationship, the mother asked the aunt to speak with the victim
in order to obtain more details about the incidents. The mother testified that after the aunt spoke
with the victim, she told the mother that the victim said Appellant ―put his mouth on her middle
part, put his tongue inside of her[,] . . . [and] that she saw his penis.‖ The aunt testified at trial,
but did not discuss in specific detail what the victim told her.
Defense counsel objected to all of this testimony as inadmissible hearsay, arguing that
Carvajal was the outcry witness based on her designation as such during the pretrial hearing, and
that the hearsay testimony could be admissible only as outcry testimony. The trial court
overruled the objections. Carvajal testified that during the interview, the victim made the
allegations she mentioned to her mother and her aunt, and also alleged that Appellant had oral
and anal sex with her, using his penis and fingers. Appellant objected to this testimony as well,
arguing that Carvajal was not the proper outcry witness. The trial court overruled the objection.
However, the victim testified at the trial, and repeated all of the allegations against Appellant that
she made during her interview with Carvajal. Defense counsel did not object to any of her
testimony.
The jury ultimately found Appellant guilty in all five cases. Appellant elected that the
trial court assess his punishment in each case. After a hearing, the trial court assessed
Appellant’s punishment in each case at life imprisonment and a $10,000.00 fine. This appeal
followed.
HEARSAY TESTIMONY
In his first issue, Appellant contends that, because Carvajal was determined to be the
proper outcry witness, the trial court erred when it admitted hearsay testimony from the victim’s
mother and aunt concerning statements the victim made to them about the abuse. In his second
issue, Appellant argues that the error in admitting this testimony harmed him, warranting a
2
reversal of the trial court’s judgment. Because these issues are related, we address them
together.
Standard of Review and Applicable Law
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold
the trial court’s ruling if it was within the zone of reasonable disagreement. Id. In addition, we
must review the trial court’s ruling in light of the evidence before the trial court at the time the
ruling was made. Id.
Hearsay is a statement, other than one made by the declarant while testifying at trial, that
a party offers to prove the truth of the matter asserted. TEX. R. EVID. 801(d); Baldree v. State,
248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Hearsay statements
are inadmissible, except as provided by statute or other rule. TEX. R. EVID. 802. The code of
criminal procedure provides a statutory exception to this general rule when a defendant is
charged with certain offenses against a child under fourteen, including aggravated sexual assault
of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2013). In such cases,
Article 38.072 permits the first person over the age of eighteen to whom the child makes a
statement describing the offense to testify as to the child’s statement. See id. § 2(a), (b); Sanchez
v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
In sexual abuse cases involving a child, the testimony of the victim alone is sufficient to
support a conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2013); Martinez
v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Garcia v. State, 563 S.W.2d 925, 928
(Tex. Crim. App. 1978). Further, the jury is the sole judge of the credibility of witnesses and is
free to accept or reject some, all, or none of the evidence presented by either side. Lancon v.
State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
The erroneous admission of hearsay statements by non-outcry witnesses is reviewed
under the nonconstitutional error standard. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). As part of this review, we determine whether the error affected the
defendant’s substantial rights. See TEX. R. APP. P. 44.2(b). An error affects a substantial right
―when the error had a substantial and injurious effect or influence in determining the jury's
verdict.‖ King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Improper admission of
evidence is not reversible error if the same or similar evidence is admitted without objection at
3
another point in the trial. See Leday v. State, 983 S.W.2d 713, 717–18 (Tex. Crim. App. 1998)
(concluding that party who objects to some evidence but fails to object to other substantially
similar evidence waives any error in admission of objected-to evidence); Mayes v. State, 816
S.W.2d 79, 88 (Tex. Crim. App. 1991).
Discussion
Appellant objected to the trial court’s designation of Carvajal as the outcry witness, but
he does not maintain on appeal that her designation was error. Rather, he contends that the
statements made at trial by the victim’s mother and aunt concerning what the victim told them
about the abuse is hearsay, and that the evidence would be admissible only as outcry testimony.
Furthermore, his argument continues, these statements were not admissible as outcry testimony
because Carvajal was designated as the outcry witness, and thus, the trial court should have
excluded the statements.
Even if the complained-of evidence violated the outcry witness hearsay exception, a
question we do not reach, Appellant allowed the victim to testify to the same evidence without
objection. Consequently, Appellant was not harmed by the statements’ admission. See
Broderick v. State, 35 S.W.3d 67, 74-75 (Tex. App.—Texarkana 2000, pet. ref’d) (holding that
admission of inadmissible outcry testimony was harmless error because the same evidence was
introduced through testimony of the complainant without objection); Thomas v. State, 1 S.W.3d
138, 142 (Tex. App.—Texarkana 1999, pet. ref’d) (same); Poole v. State, 974 S.W.2d 892, 899
(Tex. App.—Austin 1998, pet. ref’d) (same).
Appellant nevertheless points out that during jury deliberations, the jurors sent the trial
court a note requesting that the victim’s testimony be read back to them, because at least some of
them did not believe her testimony. The trial court responded that it could not grant the request
because the jury did not specifically identify a particular dispute about her testimony. In a
second note sent to the court, the jury asked for other testimony on an unrelated matter to be read
back. The trial court allowed the court reporter to read this testimony to the jury, because the
jury’s request was more specific. However, the jury did not refine the request the trial court had
denied and make another request to have the victim’s testimony read back. Instead, after further
deliberation, the jury returned a unanimous verdict of Appellant’s guilt.
Appellant essentially asks this court to speculate that the jury must have relied on the
inadmissible testimony of the victim’s mother and aunt to bolster the victim’s credibility since
4
the note stated that some of the panel members disbelieved the victim’s testimony. 1 However, if
the jury disbelieved the victim’s testimony, then they necessarily would have disbelieved the
testimony of the other witnesses, because the complained-of testimony was solely derived from
the victim’s statements to them. Stated another way, if the jury disbelieved the victim, it would
necessarily disbelieve these witnesses, because they relayed only what the victim told them.
Moreover, we will not speculate as to matters that occurred during deliberations. See
TEX. R. EVID. 606(b); Allen v. State, No. 05-95-01117-CR, 1999 WL 323281, at *2 (Tex.
App.—Dallas May 24, 1999, no pet.) (not designated for publication) (―We decline appellant’s
invitation to speculate on what the [jury] notes [and questions] reveal about the jury’s
deliberations[, because it] was the jury’s role, as fact finder, to weigh the credibility of the
witnesses and to determine the weight to give their testimony[, and to] reach their verdict, the
jury obviously resolved these issues against appellant.‖); see also Williams v. State, 975 S.W.2d
375, 378 (Tex. App.—Waco 1998, pet. ref’d). The trial court followed the procedures for
responding to juror questions, and neither party argues on appeal that the trial court acted
improperly in this regard. See TEX. CODE CRIM. PROC. ANN. arts. 36.27-.28 (West 2006).
Even though the jury could have refined its question regarding the disagreement
concerning the victim’s testimony, so that the trial court could have subsequently allowed the
testimony to be reread to them, the jury declined to do so. Instead, the jury deliberated further
and unanimously found Appellant guilty. The jury must have resolved its disagreements in the
victim’s favor, as was its prerogative as factfinder and judge of the witnesses’ credibility.
Without any objection to the child victim’s testimony, Appellant could not have been harmed by
the admission of the complained-of testimony that was substantially similar to hers. See
Broderick, 35 S.W.3d at 74-75; Thomas, 1 S.W.3d at 142; Poole, 974 S.W.2d at 899. Thus,
after examining the record as a whole, we conclude that the trial court’s admission of the
testimony did not have a substantial and injurious effect or influence in determining the jury’s
verdict. See Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no
pet.).
Appellant’s first and second issues are overruled.
1
As we have stated, the victim’s aunt did not specifically relate what the victim told her during the trial. Rather,
it was the victim’s mother who testified to what the victim told her aunt concerning the abuse.
5
COURT COSTS
In his third issue, Appellant argues that the evidence is insufficient to support the
assessment of court costs against him in each case.
Standard of Review and Applicable Law
A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
A cost is payable only on the issuance of a certified bill of costs, and it does not need to
be orally pronounced with or incorporated into the written judgment to be effective. See TEX.
CODE CRIM. PROC. ANN. art. 103.001 (West 2006); Armstrong, 340 S.W.3d at 766–67; Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). When the trial court’s written judgment
assesses court costs in an amount different from the bill of costs, then the amount of costs
assessed in the bill of costs controls, so long as the costs identified in the bill of costs are
authorized by law and the evidence is sufficient to support them. See Lanz v. State, No. 13-12-
00664-CR, 2013 WL 4715044, at *7 (Tex. App.—Corpus Christi Aug. 30, 2013, no pet.) (mem.
op., not designated for publication); Ballinger v. State, 405 S.W.3d 346, 350 (Tex. App.—Tyler
2013, no pet.).
Discussion
The trial court assessed court costs at the hearing, without specifying the amount of costs.
In its written judgment, the trial court ordered that Appellant pay court costs in the amount of
$469.00 in each case. After the written judgment was signed, the clerk compiled the bill of costs
in four of the five cases. The record does not include a bill of costs for appellate court cause
number 12-12-00414-CR (trial court cause number 114-0989-12). The bill of costs in appellate
court cause number 12-12-00413-CR (trial court cause number 114-0988-12) shows $369.00 in
total court costs. The bill of costs in appellate court cause numbers 12-12-00415-CR, 12-12-
00416-CR, 12-12-00417-CR (trial court cause numbers 114-0990-12, 114-0991-12, and 114-
0992-12 respectively) shows total costs in the amount of $389.00.
The costs assessed in each bill of costs are authorized by law, and the evidence is
sufficient to support $369.00 in costs in appellate court cause number 12-12-00413-CR (trial
court cause number 114-0988-12), and $389.00 for appellate court cause numbers 12-12-00415-
6
CR, 12-12-00416-CR, 12-12-00417-CR (trial court cause numbers 114-0990-12, 114-0991-12,
and 114-0992-12 respectively). But the evidence is insufficient to support the amounts in excess
of these amounts assessed by the trial court, and for the assessment of any costs in appellate
court cause number 12-12-00414-CR (trial court cause number 114-0989-12), because there is
no bill of costs in the record for that case. See Lanz, 2013 WL 4715044, at *7 (modifying the
judgment to reflect the figure assessed in the bill of costs when the two figures differed). The
State concedes that the amount of costs awarded by the trial court in excess of the amount
identified in the bill of costs in each case was improperly assessed, and that the evidence is
insufficient to support those amounts. Consequently, Appellant’s third issue is sustained.
DISPOSITION
Having overruled Appellant’s first and second issues, and having sustained Appellant’s
third issue, we modify the trial court’s judgment to reflect that the amount of court costs is $0.00
for appellate court cause number 12-12-00414-CR (trial court cause number 114-0989-12),
$369.00 for appellate court cause number 12-12-00413-CR (trial court cause number 114-0988-
12), and $389.00 for appellate court cause numbers 12-12-00415-CR, 12-12-00416-CR, 12-12-
00417-CR (trial court cause numbers 114-0990-12, 114-0991-12, and 114-0992-12 respectively).
See TEX. R. APP. P. 43.2(b); Reyes v. State, 324 S.W.3d 865, 868 (Tex. App.—Amarillo 2010,
no pet.). We affirm the judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b).
BRIAN HOYLE
Justice
Opinion delivered January 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
7
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2014
NO. 12-12-00413-CR
DAVID BURNETT WILLIAMS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0988-12)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $369.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2014
NO. 12-12-00414-CR
DAVID BURNETT WILLIAMS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0989-12)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $0.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2014
NO. 12-12-00415-CR
DAVID BURNETT WILLIAMS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0990-12)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $389.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2014
NO. 12-12-00416-CR
DAVID BURNETT WILLIAMS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0991-12)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $389.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 31, 2014
NO. 12-12-00417-CR
DAVID BURNETT WILLIAMS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0992-12)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $389.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial
court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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Opinion published February 25, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-09-00760-CV
____________
CURTIS & WINDHAM ARCHITECTS, INC.,
RUSSELL WINDHAM, AND WILLIAM CURTIS, Appellants
V.
JOHN EDDIE WILLIAMS AND SHERIDAN WILLIAMS, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2009-35322
O P I N I O N
In this interlocutory appeal,
appellants, Curtis & Windham Architects, Inc.,
Russell Windham, and William Curtis (collectively “C&W”) challenge the trial court’s
order denying its motion to dismiss the counterclaims and third-party petition for
damages of appellees, John Eddie Williams and Sheridan Williams. In its sole issue,
C&W contends that the trial court erred in not dismissing the Williamses’
counterclaims and third-party claims, which arose out of C&W’s provision of
architectural services to the Williamses.
We affirm the order of the trial court.
Background
In its original petition, C&W alleges that the Williamses retained C&W to
provide “architectural services in connection with the design, construction and
landscaping of a proposed residence.” C&W explained to the Williamses that, on a
monthly basis, it would “bill[] for its time on a hourly basis according to a schedule
of hourly rates that was provided to the Williams[es].” The Williamses “agreed to
proceed on this basis and to pay C&W’s monthly invoices for hourly fees and
expenses.” C&W explained to the Williameses that “its fees typically run in the range
of 12 to 15% of the project’s construction costs.” The Williamses paid all invoices
between February 2008 and March 2009 but refused to pay the April 2009 invoice in
the amount of $47,103.49. C&W also alleges that the fees and expenses were “not
insubstantial, but the amount was driven, in large part, by the expansive scope of the
project specified by [the] Williams[es] and by the countless changes they requested.”
Payment was due on May 22, 2009, but the Williamses did not pay and instructed
C&W to stop work on the residence, which it did. C&W further alleges that the “April
2009 invoice in the amount of $47,103.49 is just, due and owing” and the Williamses’
failure to pay constituted a breach of contract.
In their original answer, the Williamses specifically deny that the amount owed
on the April 2009 invoice is “just, due, and owing.” They assert the affirmative
defenses of “breach of fiduciary duty,” “fraudulent acts, specifically, but without
limitation, C&W’s fraudulent billing practices,” “waiver, ratification, . . .
acquiescence,” lack of a written contract, and, alternatively, C&W’s prior breach of
the contract, statute of frauds, laches, unclean hands, and equitable estoppel.
The Williamses assert counterclaims against C&W for (1) breach of fiduciary
duty because C&W’s invoices “reflect hours billed that cannot be reconciled with
C&W’s actual work product,” “C&W’s project design was and is materially
inconsistent with the design parameters established by the Williams[es],” and C&W
failed to provide an accounting upon request to support its invoices; (2) fraud because
C&W “pervasive[ly] and systemic[ally] overbill[ed] the Williams[es],” C&W “either
knew [its] invoices were over-stated, or was reckless about the accuracy of the
information contained in the invoices,” and C&W had a “duty to disclose to the
Williams[es] that C&W was seeking to bill 15-18% of construction costs”; (3)
deceptive trade practices based on C&W’s engaging in “false and misleading acts
related to its billing practices and through its failure to disclose . . . that C&W was
seeking to bill the project as if the Williams[es] had agreed to a percentage contract”;
(4) unjust enrichment because C&W has been paid “nearly $1 million and [the
Williamses] have received little or no tangible benefit”; (5) damages incurred as a
result of C&W’s frivolous lawsuit against the Williamses because it failed “to disclose
in its pleadings that it has already offered to credit the purported balance owed by
more than the amount claimed”; and (6) a declaration that C&W’s “architectural
designs . . . are not protected as original works . . . and/or the Williams[es] should have
the full right to use the designs.” The Williamses also filed a third-party petition
alleging the same claims against Russell Windham and William Curtis individually.
In their counterclaims and third-party petition, the Williamses specifically allege
that C&W held “itself out as a premier architectural firm . . . [with an] ability to
develop ‘design solutions that are appropriate for their context and that serve the
programmatic requirements and budgets of [their] clients.’” Based on C&W’s “design
excellence,” the Williamses hired C&W as their architects. The Williamses believed
that C&W was “operating in a fiduciary capacity,” would perform work as instructed
by the Williamses using the design criteria and other information supplied by the
them, and they would be charged only for work “actually performed.” However,
C&W “fundamentally ignored much of the design criteria and information supplied
by the Williams[es] and billed almost $1 million for an overall design that is not
consistent with the [Williamses’] instructions.” They also allege that Mr. Williams
had engaged an attorney to draft a contract to govern the engagement but the contract
was never executed. The Williamses further allege that as of March 2009, they had
paid C&W “$926,232.51 . . . that only represented 40% of the total architectural
costs.” The Williamses then learned that “C&W had apparently been striving to bill
15-18% of the anticipated construction costs in lieu of simply billing hours on
authorized and necessary work” and C&W’s design “was inconsistent with the design
parameters provided by the Williams[es].” After the Williamses conveyed their
disappointment to C&W, it offered to refund the “landscape architect fees of
$113,883.75.” On May 22, 2009, the Williamses served a “written demand letter on
C&W, demanding a full refund.”
C&W moved to dismiss the Williamses’ counterclaims and third-party petition
on the ground that the Williamses had filed claims accusing it of “wrongful conduct
in the provision of professional services, but their [counterclaims and third-party
petition were] not accompanied” by a certificate of merit, i.e., an affidavit of a third-party licensed architect describing the factual bases for their claims.
The trial court
denied C&W’s motion.
Standard of Review
We review a trial court’s decision to deny a motion to dismiss for failure to file
a certificate of merit under an abuse of discretion standard. Consol. Reinforcement,
L.P. v. Carothers Executive Homes, Ltd., 271 S.W.3d 887, 891 (Tex. App.—Austin
2008, no pet.); Criterium-Farrell Eng’rs v. Owens, 248 S.W.3d 395, 397 (Tex.
App.—Beaumont 2008, no pet.); Palladian Bldg. Co. v. Nortex Found. Designs, Inc.,
165 S.W.3d 430, 433 (Tex. App.—Fort Worth 2005, no pet.). A trial court abuses its
discretion “if it acts in an arbitrary or unreasonable manner without reference to
guiding rules and principles.” See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.
1999). When reviewing matters committed to the trial court’s discretion, we may not
substitute our own judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its discretion merely
because it decides a discretionary matter differently than an appellate court would in
a similar circumstance. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). However, a trial court has “no discretion
in determining what the law is or in applying the law to the facts.” Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909,
916 (Tex. App.—Dallas 2007, pet. denied).
We review matters of statutory construction de novo. City of San Antonio v.
City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). In construing statutes, our primary
goal is to determine and give effect to the legislature’s intent. Id. We begin with the
plain language of the statute at issue and apply its common meaning. Id. Where the
statutory text is unambiguous, we adopt a construction supported by the statute’s plain
language, unless that construction would lead to an absurd result. Fleming Foods of
Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). “Once we determine the
statute’s proper construction, we must then decide whether the trial court abused its
discretion in applying the statute.” Owens, 248 S.W.3d at 397.Certificate of Merit
In its sole issue, C&W argues that the trial court erred in not dismissing the
Williamses’ counterclaims and third-party petition because the Williamses’ claims
“arose out of the provision of professional services by a licensed architect,” and the
Williamses “did not file a certificate of merit setting forth ‘at least one negligent act,
error, or omission claimed to exist and the factual basis for each such claim.’” See Act
of May 18, 2005, 79th Leg., R.S., ch. 208, 2005 Tex. Gen. Laws 369, 370 (amended
2009) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 150.002 (Vernon
Supp. 2009)).
The 2005 version of section 150.002, which is applicable to this case and
entitled “Certificate of Merit,” provided,(a) In any action or arbitration proceeding for damages arising out of
the provision of professional services by a licensed or registered
professional, the plaintiff shall be required to file with the
complaint an affidavit of a third-party licensed architect . . .
competent to testify, holding the same professional license as, and
practicing in the same area of practice as the defendant, which
affidavit shall set forth specifically at least one negligent act,
error, or omission claimed to exist and the factual basis for each
such claim. The third-party . . . licensed architect shall be licensed
in this state and actively engaged in the practice of architecture
. . . .
. . . .
(d) The plaintiff’s failure to file the affidavit . . . shall result in
dismissal of the complaint against the defendant. This dismissal
may be with prejudice.
Id. (emphasis added). Here, C&W and the Williamses disagree as to whether the
Williamses’ claims “arise out of the provision of professional services by a licensed
architect” such that those claims are subject to the affidavit requirement in section
150.002(a).
C&W argues that because the Williamses’ “counterclaims and third-party claims
arise out of the provision of architectural professional services,” the Williamses “were
required to file with [their] petition an affidavit . . . from a third-party licensed
architect setting forth at least one negligent act, error or omission claimed to exist and
the factual basis for each such claim.” C&W emphasizes that “the statute was
amended in 2005 to broaden its application from claims for ‘damages alleging
professional negligence’ to claims for damages ‘arising out of the provision of
professional services.’” C&W asserts that the 2005 version of section 150.002
requires that for the Williamses “to assert any cause of action arising out of the
provision of professional services by a licensed or registered professional—whether
the allegations are based on negligence or intentional acts—the Williamses must come
forward with at least proof of [or at a minimum] the lesser offense of negligence—that
is, [C&W’s] professional services fell below the applicable standard of care.” The
Williamses counter that because their claims arise out of “C&W’s alleged overbilling,”
they were not required to file a certificate of merit with their counterclaims and third-party petition.
In 2005, the legislature amended section 150.002 to apply to actions “arising out
of the provision of professional services.” Id. However, the Austin, San Antonio, and
Corpus Christi Courts of Appeals have concluded that no certificate of merit is
required under the 2005 version of section 150.002 when the plaintiff does not allege
“a negligent act, error or omission.” Landreth v. Las Brisas Council of Co-Owners,
285 S.W.3d 492, 500 (Tex. App.—Corpus Christi 2009, no pet.); Consol.
Reinforcement, L.P., 271 S.W.3d at 892; Kniestedt v. Southwest Sound and Elecs.,
Inc., 281 S.W.3d 452, 455 (Tex. App.—San Antonio 2007, no pet.). The plain
wording of the 2005 version of section 150.002 necessarily leads to this conclusion
because otherwise the legislature would not have specified that the affidavit “shall set
forth specifically at least one negligent act, error, or omission claimed to exist.” Act
of May 18, 2005, 79th Leg., R.S., ch. 208, 2005 Tex. Gen. Laws 370 (amended 2005).
Because a straight-forward reading of the 2005 version of section 150.002 reveals that
the filing of a certificate of merit is not required for causes of action that do not allege
a negligent act, error, or omission, we, along with our sister courts of appeal, decline
to expand the scope of the 2005 version of section 150.002 to causes of action
“generally arising from” services provided by licensed engineers and architects.
Consol. Reinforcement, L.P., 271 S.W.3d at 892. Accordingly, we hold that the 2005
version of section 150.002 does not apply in a suit other than one for negligent acts,
errors, or omissions arising out of the provision of professional services. See id.;
Landreth, 285 S.W.3d at 500; Kniestedt, 281 S.W.3d at 455.
We note that the practice of architecture is defined as “a service or creative
work applying the art and science of developing design concepts, planning for
functional relationships and intended uses, and establishing the form, appearance,
aesthetics, and construction details for the construction . . . of a building or environs
intended for human use or occupancy, the proper application of which requires
education, training, and experience in those matters.” Tex. Occ. Code Ann. §
1051.001(7) (Vernon Supp. 2009). Thus, if a plaintiff’s claim for damages does not
implicate the special knowledge and training of an architect, it cannot be a claim for
damages arising out of the provision of professional services. See Consol.
Reinforcement, L.P., 271 S.W.3d at 894.
In Consol. Reinforcement, L.P., Carothers Executive Homes filed claims against
Consolidated, an engineering firm, for breach of contract, deceptive trade practices,
and breach of warranty regarding Consolidated’s “design and construct[ion of the
buildings’] foundations.” 271 S.W.3d at 890. The Austin Court of Appeals reasoned
that:
[Plaintiff’s non-negligent causes of action] do not implicate a
professional engineer’s education, training, and experience in applying
special knowledge or judgment. An affidavit of a licensed or registered
professional setting forth the negligent act, error, or omission and factual
basis for each appears irrelevant to claims that do not arise from the
provision of professional services. We believe the non-negligence causes
of action did not require a certificate of merit.
Id. at 894 (quoting Gomez v STFG, Inc., No. 04-07-00223-CV, 2007 WL 2846419, at
*2–3 (Tex. App.—San Antonio Oct. 3, 2007, no pet.)).
Likewise, the Williamses’ causes of action do not implicate a professional
architect’s “education, training, and experience” in applying “special knowledge or
judgment.” The gist of the Williamses’ claims, which are made in response to C&W’s
breach of contract claim for the Williamses’ non-payment of fees, is that C&W
engaged in “pervasive and systemic overbilling.” The Williamses’ claims for damages
for breach of fiduciary duty, fraud, deceptive trade practices, unjust enrichment, and
the filing of a frivolous lawsuit against them and their request for a declaratory
judgment do not implicate a negligent act, error, or omission by C&W. It simply
makes no sense to require an affidavit of a licensed or registered professional setting
forth “at least one negligent act, error, or omission claimed to exist and the factual
basis for each such claim” when, in fact, a plaintiff’s causes of action do not concern
negligence. Accordingly, we hold that the Williamses were not required to file a
certificate of merit with their claims and the trial court did not err in denying C&W’s
motion to dismiss.
We overrule C&W’s sole issue.Conclusion
We affirm the order of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
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892 P.2d 488 (1995)
126 Idaho 813
Jose Alphonso MARTINEZ, Petitioner-Appellant,
v.
STATE of Idaho, Respondent.
No. 20195.
Court of Appeals of Idaho.
March 28, 1995.
*489 Kehne & Adams, Boise, for appellant. Rolf M. Kehne argued.
Larry EchoHawk, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for respondent. Lynn E. Thomas argued.
LANSING, Judge.
In his application for post-conviction relief, Jose Alphonso Martinez alleged that he was denied the effective assistance of counsel during the course of his trial for first-degree murder. The State moved for summary dismissal of Martinez's claims, and the district court dismissed Martinez's application without conducting an evidentiary hearing. Martinez appeals from the dismissal order. He also challenges the denial of his motion to disqualify the judge presiding in the post-conviction proceeding. We find no abuse of discretion in the trial court's denial of Martinez's motion to disqualify. We conclude it was error, however, for the district court to *490 summarily dismiss the application for post-conviction relief when neither the State's motion nor any notification from the court had given Martinez notice of the prospective grounds for dismissal.
I. BACKGROUND
Martinez was found guilty by a jury and convicted of first-degree murder for the contract killing of Troy Vance. An indeterminate life sentence was imposed. Martinez appealed, and his conviction and sentence were upheld. State v. Martinez, 125 Idaho 445, 872 P.2d 708 (1994). The facts of the crime and details of Martinez's criminal trial are presented in that opinion of the Supreme Court and need not be repeated here.
In May 1992, Martinez filed an application for post-conviction relief pursuant to I.C. § 19-4901 et seq. He alleged that his attorney in the criminal case had been ineffective in numerous ways in handling the pretrial investigation of the case and in conducting the defense at trial.
Pursuant to I.C. § 19-4907(a), Martinez's post-conviction relief proceeding was assigned to District Judge Gerald R. Weston, who had also presided over the underlying criminal case. Martinez moved to disqualify Judge Weston under I.R.C.P. 40(d)(2)(A)(4). Judge Weston denied Martinez's motion for disqualification and, upon the State's motion for summary dismissal, dismissed Martinez's application for post-conviction relief. Martinez now appeals, claiming the district court erred in denying his motion to disqualify the presiding judge and in summarily dismissing his application without proper notice and without an evidentiary hearing.
II. MOTION TO DISQUALIFY JUDGE
We consider first Martinez's motion to disqualify Judge Weston. Idaho Rule of Civil Procedure 40(d)(2)(A)(4) provides that a judge may be disqualified from presiding in any action where "the judge or magistrate is biased or prejudiced for or against any party or the case in the action." A judge's determination that disqualification is not necessary will be disturbed on appeal only if it constitutes an abuse of discretion. Bell v. Bell, 122 Idaho 520, 529, 835 P.2d 1331, 1340 (Ct.App.1992).
Martinez alleged that Judge Weston should be disqualified for three reasons: (1) statements made by Judge Weston at Martinez's sentencing showed that he was biased; (2) Judge Weston's law firm had represented the estate of the victim, Troy Vance, in a property dispute against one of Martinez's co-defendants, which allegedly created an appearance of impropriety; and (3) Judge Weston was a material witness to the events surrounding Martinez's criminal trial, and Martinez intended to call the judge to testify in the post-conviction proceeding regarding alleged conversations between Judge Weston, the prosecutor and Martinez's attorney.
As to the claim of bias, Martinez relies upon Judge Weston's statement at the sentencing hearing that one factor weighing against the death penalty was the fact that Martinez had information that could lead to the conviction of other individuals who may have participated in the murder. According to Martinez, this comment shows that Judge Weston felt that Martinez deserved to be put to death and thereby exhibits bias. This argument is entirely without merit. Martinez had been found guilty of first-degree murder, a crime for which capital punishment is possible, and the prosecutor had requested imposition of that penalty. By terms of I.C. § 19-2515 the judge was required to consider factors weighing in favor of or mitigating against the death penalty. The fact that Judge Weston performed this duty and considered the capital punishment alternative in arriving at a sentence is hardly evidence that the judge was biased.
Martinez also alleged that an appearance of impropriety arose because Judge Weston's former law firm had represented the estate of Martinez's victim, Troy Vance, in a dispute against one of Martinez's co-defendants, Howard Olson. Judge Weston investigated this allegation and determined that while he was a partner in the law firm, one of his former partners had represented the estate of Troy Vance. In his order denying Martinez's motion, however, Judge Weston *491 stated that he had no knowledge of this representation or of any details of that case.
In Desfosses v. Desfosses, 122 Idaho 634, 836 P.2d 1095 (Ct.App.1992), we held that the trial judge's prior representation of the brother of the defendant did not constitute grounds for disqualification because the brother was not a party to the action and was not affected by its outcome. Here, any relationship between the case at bar and the judge's prior law practice is even more attenuated. Judge Weston, in his former capacity as an attorney, had no affiliation with the Vance estate's litigation other than his business relationship with the attorney of record. Martinez identifies no facts the judge might have learned from this litigation that would bear upon Martinez's application for post-conviction relief. Rather, he complains of an "appearance of impropriety" necessitating disqualification. We cannot agree. Not even an appearance of impropriety exists in this situation where the district judge's former law firm once represented individuals only remotely connected to the current action, in proceedings that have no relationship to the current action.
Finally, Martinez alleged that Judge Weston would be called as a witness regarding conversations he had with attorneys for the defendant and the prosecution. Martinez did not, however, identify the subject matter of these conversations, when they occurred, or how they are relevant to the post-conviction proceeding. A conclusory allegation that a judge is a material witness without more, creates no basis to disqualify the judge. Mandating a judicial disqualification on such unsubstantiated assertions would delay the administration of justice and promote frivolous disqualification efforts.
The grounds asserted by Martinez to disqualify Judge Weston were without merit, and we therefore find no abuse of discretion in the denial of Martinez's motion.
III. SUMMARY DISMISSAL
Martinez next asserts that the district court improperly dismissed his application for post-conviction relief without having given Martinez notice of the grounds for the dismissal and the opportunity to respond.
A post-conviction action is a special proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App. 1992). Like a civil plaintiff, the applicant must prove by a preponderance of evidence the allegations upon which the request for relief is based. I.C. § 19-4907; Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action, however, for an application must contain much more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not attached. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
Idaho Code § 19-4906 authorizes summary disposition of an application for post-conviction relief, either upon the motion of a party or at the court's own initiative. Summary dismissal is permissible only if the applicant's evidence has raised no genuine issue of material fact which, if resolved in the applicant's favor, would entitle him to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 819 P.2d 1159 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 754 P.2d 458 (Ct.App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987); Summary dismissal of a petition for post-conviction relief may be appropriate, however, even where the State does not controvert the applicant's evidence, for the court is not required to accept either the applicant's mere conclusory *492 allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App.1994); Hays v. State, 113 Idaho 736, 739, 747 P.2d 758, 761 (Ct.App. 1987), aff'd 115 Idaho 315, 766 P.2d 785 (1988); Baruth v. Gardner, 110 Idaho 156, 159-60, 715 P.2d 369, 372-73 (Ct.App.1986).
Martinez contends that summary dismissal of his application was improper because he did not receive twenty days' notice of the court's intent to dismiss as required by I.C. § 19-4906(b).[1] The State counters that the notice provision of I.C. § 19-4906(b) is applicable only where the court intends to dismiss the case on its own initiative, not when the dismissal is based upon a motion by the prosecutor. The State is correct in its assertion that, if the prosecutor has filed and served a properly supported motion to dismiss pursuant to I.C. § 19-4906(c), further notice from the court is ordinarily unnecessary. State v. Christensen, 102 Idaho 487, 488, 632 P.2d 676, 677 (1981); Baruth v. Gardner, 110 Idaho at 159, 715 P.2d at 372. Martinez maintains, however, that the State's motion to dismiss was legally insufficient because it gave him no notice of the grounds for the motion. We conclude that Martinez's point is well-taken.
The State's motion for summary disposition stated:
COMES NOW RICHARD L. HARRIS, Prosecuting Attorney for Canyon County and moves this Court pursuant to the provisions of I.C. § 19-4906(c) for summary disposition of the application on the grounds that there is no genuine issue of material fact and that the Respondent is entitled to judgment as a matter of law. That a review of all of the records on file in the above entitled case affirmatively show:
1. That the conviction or sentence was not obtained or imposed in violation of the Constitution of the United States, or of the Constitution or the laws of the State of Idaho.
2. That the Court had jurisdiction to impose sentence.
3. That the sentence did not exceed the maximum authorized by law.
4. That there exists no evidence or material facts not previously presented or heard, which requires vacation of the conviction or sentence.
5. That the Petitioner is not unlawfully held in custody or under other restraint.
6. That there exists no other grounds for the granting of relief prayed for by Petitioner.
This language recites almost verbatim some of the terms of the I.C. §§ 19-4901 and 4906, but does not address Martinez's particular claims. The motion does not state what aspects of Martinez's application or supporting evidence are asserted to be insufficient or why. From the record before us it appears that the State's motion was not accompanied by a legal brief, affidavit, or other document that either challenged the sufficiency of Martinez's evidence or presented legal argument asserting why the State was entitled to judgment. The motion therefore did not give Martinez notice of any issues or arguments to which he needed to respond.
Motions for summary disposition pursuant to I.C. § 19-4906 are procedurally equivalent to motions for summary judgment under I.R.C.P. 56(e), Bradford v. State, 124 Idaho 788, 790, 864 P.2d 626, 628 (Ct.App. 1993); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987), and they are therefore subject to similar notice standards. It is clear that in summary judgment proceedings the nonmovant is required to respond only to alleged grounds for summary judgment asserted by the moving party. *493 The nonmovant need not address any aspect of the nonmovant's case that has not been challenged by the opposing party's motion. Thomson v. Idaho Insurance Agency, Inc. and Keller, 126 Idaho 527, 887 P.2d 1034 (1994); Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 273, 869 P.2d 1365, 1368 (1994). Therefore, both this Court and the Idaho Supreme Court have held it was error for a trial court to grant summary judgment on grounds not asserted by the moving party. Thomson, supra; Mason v. Tucker and Associates, 125 Idaho 429, 871 P.2d 846 (Ct.App.1994). In Mason, we emphasized the necessity of notice of the grounds for a motion in order to afford the nonmovant an opportunity to address the issues raised and present evidence and legal argument directed to those issues.
In Gibbs v. State, 103 Idaho 758, 653 P.2d 813 (Ct.App.1982), we addressed a similar situation in the context of a post-conviction action. There, the State filed a motion for summary dismissal, but the district court dismissed the application on grounds different from those presented by the State's motion. Because the applicant had received no notice of or opportunity to challenge the district court's intended basis for dismissal, we vacated the order dismissing the application.
In the present case, the State's motion identified no particular basis for dismissal of Martinez's various claims, and was therefore ineffective to give him notice of any deficiencies in his evidence or any legal analysis he needed to address in order to avoid dismissal of his action. The district court's subsequent order, although couched as an order granting the State's motion, was effectively a sua sponte dismissal on grounds advanced by the court. Therefore, it was necessary for the district court to comply with the twenty-day notice requirement of I.C. § 19-4906(b) before dismissing Martinez's post-conviction action. Because such notice was not given, the district court's order of dismissal must be vacated.
IV. CONCLUSION
The denial of Martinez's motion to disqualify the district judge is affirmed. The order dismissing Martinez's application for post-conviction relief is vacated, and the case is remanded for further proceedings.
WALTERS, C.J., and PERRY, J., concur.
NOTES
[1] I.C. § 19-4906(b) states:
When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or, direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact. (Emphasis added.)
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739 F.Supp. 756 (1990)
Edward Ramos SOUSA, Plaintiff,
v.
Jerry HUNTER, General Counsel, National Labor Relations Board, Defendant.
No. 85 CV 3703.
United States District Court, E.D. New York.
June 5, 1990.
*757 Edward Ramos Sousa, pro se.
Pamela R. Perron, Asst. U.S. Atty., Andrew J. Maloney, U.S. Atty., E.D.N.Y., for defendant.
MEMORANDUM AND ORDER
McLAUGHLIN, District Judge.
Plaintiff, a former employee of defendant National Labor Relations Board ("NLRB"), brings this discrimination action under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. Plaintiff, a Hispanic male, alleges that his discharge was based, at least in part, upon his race and color.[1] Specifically, he alleges that he was harassed, intimidated and terminated because of his national origin. He further alleges that Region 29 discriminated against all racial minorities. For himself, plaintiff seeks reinstatement, promotion and back pay. The case was tried before me without a jury. The following constitute the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52.
FINDINGS OF FACT
Plaintiff graduated from law school in 1981. He was hired by the NLRB as a "law clerk trainee" with the rank of GS 9 in Region 29, Brooklyn, New York on November 6, 1983. In this capacity he was expected to investigate charges of unfair union representation and unfair employer labor practices, interview witnesses, research various statutes, draft pleadings, and to write final investigative reports and legal memoranda. His initial appointment was probationary for a period of twelve months, during which time his performance would be evaluated.
Plaintiff's immediate supervisor was Anthony Ambrosio. On April 6, 1984, six months after plaintiff was hired, Mr. Ambrosio chided the plaintiff about various deficiencies and omissions in his investigations and his final investigative reports. Mr. Ambrosio urged plaintiff to seek his supervisor's advice, counselling and direction; and he offered to help plaintiff improve in any way he could. Despite this offer, plaintiff did not seek guidance from his supervisor, and his work did not improve.
Mr. Ambrosio spoke to the Regional Director, Samuel Kaynard, about plaintiff's poor performance. He further memorialized his criticisms in a memorandum dated July 3, 1984. For example, in cases involving the union's duty of fair representation, *758 plaintiff erroneously focused upon the employer's conduct rather than the union's representation. In taking witnesses' affidavits, plaintiff often omitted necessary information. Most significantly, plaintiff's writing suffered from incomplete sentences, inclusion of irrelevant repetitive material, and overall disorganization and incoherence. Mr. Ambrosio's memorandum concluded that if plaintiff's work did not improve, he would not be retained. Plaintiff received a copy of this memorandum.
Under the Collective Bargaining Agreement between the NLRB, as employer, and the Union representing plaintiff, he could not be fired until he had first been given a Performance Improvement Plan ("PIP") noting his deficiencies and affording him a reasonable period to correct them.
Mr. Ambrosio wrote such a PIP on August 3, 1984 and gave plaintiff a copy. The PIP again recited plaintiff's problems, as perceived by Ambrosio, but this time in great detail. It specifically suggested several ways to improve, including instructions how to better organize reports chronologically and a reading list of important legal resources. The PIP noted that plaintiff appeared reluctant to speak with his supervisor concerning case-handling problems and stressed the importance of supervisory assistance. Plaintiff was allowed six weeks to implement the improvement plan, otherwise he was advised that he would be terminated.
At the end of six weeks, plaintiff was evaluated by three supervisors. Unfortunately, their collective judgment was that he had not improved and that his oral and written communication skills were "unsatisfactory." The quality and timeliness of his work remained only "marginally satisfactory," while his relationships with other people were "satisfactory."
The rest of the chronology is uncontested: on October 2, 1984, the NLRB notified plaintiff that he would be discharged. Plaintiff then submitted a request for reconsideration which was denied. His appeal to the General Counsel was similarly denied. The NLRB then terminated his employment on November 2, 1984.
Paralleling this tale is another sub-text: plaintiff's difficulties passing a bar examination. Apart from the twelve-month probationary period during which a law clerk trainee's performance is appraised, there is another condition of employment: the trainee must pass a state bar examination and be admitted to practice within fourteen months of hiring. This is an absolute limitation upon the right to be retained; and the former Regional Director testified categorically that there was no discretion to waive this requirement.
Although the NLRB granted plaintiff leave to study for the New York bar exam in February and July 1984, he did not pass any bar exam while he was employed with the NLRB. In fact, plaintiff was not admitted anywhere until three years after he left the NLRBdespite eleven bar examinations in Florida, New York and New Jerseywhen he passed the New Jersey Bar. Thus, even if Mr. Sousa had satisfactorily performed his work, he could not have remained as a law clerk trainee beyond January 6, 1985. In short, even if plaintiff could prove discrimination, his damages would perforce be limited to the two months between November 2, 1984, when he was terminated and January 6, 1985 when the NLRB would have been bound to discharge him.
Plaintiff lodges three specific complaints against the NLRB, in general, and Mr. Ambrosio, in particular. He alleges that Ambrosio harassed, yelled at, and intimidated him because the plaintiff is Hispanic. The evidence, however, is that Mr. Ambrosio is a "yeller" and he rakes all subordinates with fine impartiality. Thus, Joel Friedman, a white male attorney who worked under Mr. Ambrosio, testified that Mr. Ambrosio had also berated him. And Lillian Perez, a Hispanic woman who has worked at Region 29 for more than fifteen years, testified that Mr. Ambrosio yells at everyone. It may be noted that the physical plant at Region 29 is cramped and the workload heavy.
*759 Plaintiff also taxes the NLRB for its failure to provide him with proper legal training. The evidence, however, is overwhelmingly to the contrary. The NLRB provided weekly lectures, which the plaintiff generally attended, and a training seminar in Washington, D.C., which he also attended. In addition, he was urged to confer frequently with his supervisor, or if Mr. Ambrosio was unavailable, with other supervisors or the Regional Director himself. He was, of course, also free to ask questions of his peers.
Plaintiff is also distressed that he was, on occasion, called upon to translate and interpret Spanish, French and Portuguese, a task that falls outside the responsibilities of a law clerk trainee. Perhaps, as a matter of labor law, the plaintiff is correct, but in this Title VII suit plaintiff must demonstrate that these extraneous tasks were foisted upon him out of racial animus. Again, the proof is not there. The evidence is that many attorneys worked outside their job descriptiontyping, xeroxing or doing other necessary tasks, as one white male attorney testified.
CONCLUSIONS OF LAW
It is an unfair labor practice, under Title VII of the Civil Rights Act of 1964, for an employer to discriminate against anyone in hiring, discharge or the terms and conditions of employment because of the individual's race, color, religion, sex, or national origin. Similarly, it is illegal to limit, segregate or classify employees in ways that adversely affect the employee's status because of his race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1) and (2).
Two distinct theories of liability have evolved under Title VII, the first commonly known as "disparate treatment," the second as "disparate impact." Under the first theory, "proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); see Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777, 2779-80, 101 L.Ed.2d 827 (1988); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1989); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 806, 93 S.Ct. 1817, 1826, 36 L.Ed.2d 668 (1973). Under the second theory, plaintiff may prove his case by establishing that his employer maintained a policy or practice that, although fair in form, resulted in a disparate impact upon a specific minority. Wards Cove Packing Co. v. Atonio, ___ U.S. ___, 109 S.Ct. 2115, 2119, 104 L.Ed.2d 733 (1989). In this case, it is grossly obscure whether plaintiff meant to prove disparate treatment or disparate impact.
Disparate Treatment. Although the seminal cases on disparate treatment involved invidious hiring practices (see, e.g., Burdine, 450 U.S. 248, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817), the theory has been extended to failure to promote cases and termination cases, as well. See, e.g., Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777 (failure to promote); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d Cir.1989). To make out a prima facie case, plaintiff must initially establish (1) that he belongs to a protected class; (2) that he was qualified for the job; and (3) that he was discharged under circumstances "giving rise to an inference of racial discrimination." Ramseur, 865 F.2d at 464; see McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824. If plaintiff makes out a prima facie case, the burden then shifts to the employer to articulate some legitimate, non-discriminatory reason for the employee's rejection. Plaintiff then may prove that the employer's reason was pretextual. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093.
Plaintiff has failed to prove any discriminatory intent on the part of Messrs. Ambrosio, Kaynard, Friedman or any other NLRB supervisors. Moreover, he has *760 failed to establish a prima facie case that he was qualified to be retained or promoted at the NLRB. Based upon plaintiff's inadequate writing abilities, his inability to investigate and research a case thoroughly and his failure to improve, the NLRB proved a legitimate non-discriminatory reason for terminating plaintiffnamely lack of merit. Plaintiff has failed to explain his poor performance. He has been unable to show that his supervisors' appraisals were pretextual. Therefore, I reject plaintiff's suggestion that he has demonstrated "by a preponderance on [sic] the evidence that the legitimate reasons offered by the employer was [sic] a pretext for discrimination." (Proposed Plaintiff's [sic] Finding [sic] of Fact and Conclusions of Law ("Plaintiff's Findings") at 13).
Plaintiff adduced no evidence that even hints at discriminatory practices regarding promotions of Hispanics or other minorities. Quite the contrary, Hispanics and other minority members have received excellent appraisals and have been promoted by the NLRB in Region 29. Therefore, in addition to rejecting plaintiff's claim regarding the allegedly pretextual reasons for his discharge, I reject plaintiff's garbled assertion that he "has satisfied burden of persuasion [sic] that Region 29's employment practice of evaluating employees, who obtained their initial training at Region 29, were systematically denied promotions or terminated or both." (Plaintiff's Findings at 11).
Disparate Impact. To make out a prima facie case of disparate impact, plaintiff must identify "the specific employment practice that is challenged." Watson 487 U.S. at 994, 108 S.Ct. at 2788. After identifying the employment practice at issue, plaintiff must "show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Id. 108 S.Ct. at 2789.
Plaintiff has failed to make out a prima facie case of disparate impact. He identified no particular policy or practice in hiring, promotion, termination or the terms and conditions of employment which had an adverse impact upon minorities. He never even identified the minorities. There is simply no merit to the allegation that plaintiff was terminated because he is a Hispanic or a member of any other racial minority. To the contrary, his termination was based upon poor performance and his subsequent failure to improve when given the opportunity to do so. The evidence clearly shows that the NLRB attempted to help plaintiff improve as much as possible. The defendant demonstrated a legitimate business reason for discharging him: the plaintiff's poor performance.
Finally, even if plaintiff could have established liability, the fact remains that he did not pass the bar exam within fourteen months of his employment. Thus, the most he would be entitled to is two additional months of employment. For this period of time reinstatement would serve no purpose, and plaintiff never even sought to introduce evidence that he lost any income so that he would be entitled to back pay.
Plaintiff has simply failed to persuade the Court that a discriminatory reason more likely motivated his employer or that his employer's proffered explanation is unworthy of credence. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. In short, I find that plaintiff's race and color were not even the slightest factors in his discharge.
Accordingly, the clerk is directed to enter judgment for the defendant.
SO ORDERED.
NOTES
[1] Plaintiff also claims that he qualifies as a black man, although this came as a revelation to the NLRB after plaintiff had been terminated. Nowhere in his pre-termination personnel files is there any indication that he is black. There is no evidence that anyone at the NLRB ever knew plaintiff was black, and, therefore, the fact that he is blackif indeed he isdid not enter into the decision to terminate him. In any event, plaintiff's evidence on this point was totally unpersuasive.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00341-CV
IN RE BYRON WALKER RELATOR
------------
ORIGINAL PROCEEDING
------------
MEMORANDUM OPINION1
------------
The court has considered relator’s petition for writ of mandamus and is of
the opinion that relief should be denied. Accordingly, relator’s petition for writ of
mandamus relief is denied.2
PER CURIAM
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: November 8, 2013
1
See Tex. R. App. P. 47.4, 52.8(d).
2
See In re Blevins, No. 12-0636, 2013 WL 5878910, at *2 (Tex. Nov. 1,
2013) (orig. proceeding) (holding that when a respondent judge has been
recused, a court of appeals has discretion to deny the petition for writ of
mandamus).
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FLOYD HILL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1289
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed July 7, 2016.
An appeal from an order of the Circuit Court for Alachua County.
Mark W. Moseley, Judge.
Floyd Hill, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
ROBERTS, C.J., WOLF, and B.L. THOMAS, JJ., CONCUR.
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188 So.2d 618 (1966)
LOUISIANA POWER & LIGHT COMPANY, Plaintiff-Appellant,
v.
Meyer GREENWALD, Defendant-Appellee.
No. 10582.
Court of Appeal of Louisiana, Second Circuit.
May 30, 1966.
Rehearing Denied August 4, 1966.
Writ Refused October 11, 1966.
*619 Theus, Grisham, Davis, Leigh & Brown, Monroe, George Spencer, Sevier, Yerger & Sevier, Tallulah, for appellant.
Lancaster, Baxter & Seale, Tallulah, for appellee.
Before HARDY, AYRES and BOLIN, JJ.
AYRES, Judge.
This is an expropriation proceeding, the object of which is the acquisition by plaintiff of a right of way in the nature of a servitude 200 ft. wide extending 6691.4 ft. across defendant's property for the purpose of constructing and maintaining electric transmission lines of a capacity of 500 kv.
From a judgment granting plaintiff the right of way upon the payment of $20,736.00 as compensation for the servitude, predicated upon the value of the land embraced within the servitude less the owner's retention value therein, and upon the payment of the additional sum of $10,317.50 for severance damages sustained to 77.65 acres adjacent to the right of way, plaintiff prosecutes this appeal.
By this appeal and defendant's answer thereto, the issues before this court for determination are the identical issues presented to the trial court. These relate to the right of plaintiff to expropriate defendant's property, the compensation to be paid for the servitude, and the damages sustained to the remainder of defendant's property. In addition, an issue presented on the appeal involves a determination of the fees of the expert witnesses testifying on behalf of defendant.
Defendant's property comprises a tract of 995 acres, 715 acres of which is very fertile and highly productive agricultural land. The remaining 280 acres consist principally of woods and a bayou running through the property. The area encompassed within the right of way or servitude comprises 30.72 acres, of which approximately 25.5 acres consist of farm land and approximately 5.22 acres of woodland.
Upon the right of way, as it traverses defendant's property, plaintiff proposes to locate six steel towers. Each of the towers will be erected on concrete footings extending 12-13 ft. in the ground. The bases for four of the towers will have an overall dimension of 13 ft. 5 in. × 33 ft. 7 in. and a height of 119 ft. 6 in. The remaining two, erected on similar bases but of a dimension of 14 ft. 3½ in. × 37 ft. 1¾ in., will have a height of 129 ft. 6 in. On top of these towers, the distance between which will range from 1000-1400 ft., will be placed crossarms 89 ft. in length and used to support nine cables or conductors 1½ in diameter. The elevation of these cables will vary from a maximum height of approximately 129 ft. to a minimum of 35 ft. above the ground at the point of lowest sag. The aggregate area to be occupied by these towers comprises 2947.318 sq. ft., or.00676 of an acre.
The question presented as to plaintiff's right to expropriate the aforesaid *620 right of way is based upon the contention that there is no public need for the proposed facility. This contention is without merit. Such was the conclusion reached by the trial court, and, with it, we agree. Plaintiff offered the testimony of two of its engineers to establish the need and purpose of the proposed line. Both testified that the construction was to increase the capacity of plaintiff's electrical system by connecting or interlocking it with other systems to fulfill and supply the ever-increasing electrical needs of the immediate as well as other areas of this State. The need for electrical power on the part of domestic, commercial, and industrial users in the territory served by plaintiff was shown to be increasing at a rate of approximately 11% per year, and the demands for electrical energy are being doubled every six or seven years. Growth, such as this, must be anticipated by operators of public utilities. The purpose of the contemplated construction is to assist in the supplying of these needs, as well as to provide a means for interchanging peak loads of electricity with the Tennessee Valley Authority.
As to the amount of compensation to be paid for the right of way sought, and for damages sustained to the remainder of defendant's property, plaintiff offered the testimony of two experts; defendant offered the testimony of three. To the qualifications of one of these, plaintiff, however, strenuously objected. We do not find it necessary to resolve this issue of the contested witness' qualifications. Resolution of that issue is not necessary to a determination of the amount of compensation to which the defendant is entitled.
No controversy exists as to the highest and best use to which defendant's property may be utilized. For many years this property has been used for agricultural purposes; it is being so used at the present time. There is no other contemplated or prospective use for it.
In resolving issues relating to compensation to be paid for property through expropriation for public use there are certain fundamental principles which must be borne in mind. First, there is the general rule that "private property shall not be taken or damaged except for public purposes and after just and adequate compensation has been paid." La.Const. Art. 1, § 2. The "just and adequate" compensation to which an owner of property taken in expropriation proceedings is entitled is the full and perfect equivalent of the property taken, that is, the loss caused the owner by the taking, so that the owner shall be put in as good position pecuniarily as he would have been if the property had not been taken. Housing Authority of Shreveport v. Green, 200 La. 463, 8 So.2d 295 (1942); State Through Dept. of Highways v. Barrow, 238 La. 887, 116 So.2d 703 (1960).
The general rule follows that the measure of compensation to be awarded an owner in expropriation proceedings is the price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy, that is, the "market value" of the property. Housing Authority of Shreveport v. Green, supra; Louisiana Highway Commission v. Israel, 205 La. 669, 17 So.2d 914 (1944); Louisiana Highway Commission v. Paciera, 205 La. 784, 18 So.2d 193 (1944); City of Shreveport v. Abe Meyer Corp., 219 La. 128, 52 So.2d 445 (1951); Louisiana Power & Light Company v. Simmons, 229 La. 165, 85 So.2d 251 (1956).
As foundations for their conclusion as to the value of the property in fee within the right of way, all the witnesses resorted to comparable sales. We do not deem it necessary to minutely discuss the facts or the reasons upon which these witnesses predicated their individual conclusions. A resume of their findings is deemed sufficient. The sales of properties classified as "comparables" ranged in price from $310.00 to $500.00 per acre. After making necessary adjustments for differences existing in the subject property from those of the "comparables," plaintiff's testimony indicated *621 that the subject property had a value ranging from $335.00 to $400.00 per acre. Two of defendant's witnesses were apparently of the opinion that defendant's property as a whole had a value of $450.00 per acre. The other, the one whose qualifications were questioned, placed the value of the property contained within the right of way at $1,350.00 per acre. This, he arrived at by multiplying its purported market value by three.
As to the last of the aforesaid evaluations, we find neither a factual nor legal basis for tripling the market value of property to reach a basis of an award of compensation. Nor do we think that the "strip" expropriated tripled in value in the process of expropriation. We are not, however, unmindful of the fact that by its topography and other characteristics peculiar to itself a "strip" of land expropriated for right-of-way purposes may possess, by virtue of its superior qualities, a value greater than that of the property as a wholebut, in such event, this superior value must be made to appear to a legal certainty by a reasonable preponderance of the evidence. The record in the instant case does not contain such proof.
Inasmuch as we bind ourselves by our foregoing conclusions, we feel that the record in the instant case supports a finding that the right-of-way area, a strip containing both agricultural and wooded land, has a market value of $400.00 per acre. This finding, however, is not the solution to the question presented. The basic question is the value of the servitude expropriated for right-of-way purposes. Other factors to be considered include the value of the rights retained by the owner in the right-of-way area. In the instant case, the landowner continues to have full use of the property except for the construction of buildings or the exercise of other activities which would interfere with the rights of the owner of the servitude. Thus, he may continue with his farming operations in the same manner and for all practical purposes to the same extent as theretofore. In cases where the landowner will continue to have use of the property, the right of way should be valued at one-half of its fee value. Texas Pipe Line Co. v. Johnson, 223 La. 380, 65 So.2d 884, 38 A. L.R.2d 785 (1953); Louisiana Power & Light Company v. Simmons, supra; Gulf States Utilities Co. v. Domingue, 72 So.2d 623, La.App., 1st Cir.1954; Louisiana Power and Light Company v. de Bouchel, 143 So.2d 270, La.App., 4th Cir.1962; Central Louisiana Electric Company v. Fontenot, 159 So.2d 738, La.App., 3d Cir.1964.
Therefore, the value of the servitude expropriated for the right of way should be, and is hereby, fixed in the sum of $200.00 per acre, or at $6,144.00 for the total acreage included within the right of way.
There was a great divergence of opinion of the witnesses as to the severance damages sustained to defendant's adjacent property. While one of plaintiff's witnesses could assign no damages, the other expressed an opinion that a described 32 acres located in the southeast corner of the farm would sustain damages to the extent of $25.00 per acre, and that four acres south of the proposed line and west of the bayou would sustain damage to the extent of $172.50 per acre. One of defendant's witnesses estimated the additional damaged area at 160.7 acres of the open land and 26.6 acres of the woodland. The first, he would depreciate at $150.00 per acre and the latter at $50.00 per acre. Another of the witnesses concluded that a strip 200 ft. wide on each side of the right of way sustained a loss in value of $125.00 per acre. The third of defendant's witnesses, the one whose testimony as an expert was questioned, estimated the severance damage of the remaining property at 10% of its value, or the sum of $43,392.60. No reasons were assigned for calculating damages on a percentage basis; nor does the record establish any basis for such calculation. There was no showing that the whole of the property would sustain damage. The *622 court, however, concluded that 64.35 acres of the agricultural land had sustained damage to the extent of $150.00 per acre, and that 13.3 acres of the wooded area had sustained damage to the extent of $50.00 per acre.
From our review and appreciation of the record, after giving consideration to the testimony of all the witnesses, we are of the opinion that defendant did sustain severance damages to a portion of the remainder of his property. This damage is predicated largely upon the inconvenience and difficulties that will be experienced in the aerial application of fertilizer and insecticides. We are not, however, impressed that the inconvenience and difficulties would exist over a too considerable portion of the property. According to the testimony of those in the business of supplying these aerial services, such activities may be performed, but the presence of the electrical lines constitutes another problem and adds to the difficulties in their rendition. This inconvenience in operation, according to M. C. Gehr, one of defendant's experts, would extend over a strip 200 ft. wide on each side of the right of way and would thus comprise an area of 61.44 acres. Obviously, the difficulties and inconvenience that will be experienced over this additional area are not nearly so great as those which will be encountered within the area of the right of way itself where the farming activities must be conducted under the transmission lines and around the bases of the towers, and where the aerial applications must be made by flying either underneath or immediately above the transmission lines.
Within the right of way itself, we have concluded, as heretofore stated, that the landowner has a retention value of $200.00 per acre, or 50% of its market value. In this additional area, we conclude that the defendant landowner has a retention value of $300.00 per acre and that he has therefore sustained damages to the extent of 25% of the land's value, or $100.00 per acre, or a total severance damage of $6,144.00.
Lastly for consideration is the question of fees allowed the expert witnesses testifying on behalf of defendant. Inasmuch as plaintiff made no tender of an amount adequate to compensate defendant for the servitude to be acquired and the damage done, we find no basis for relieving it of the payment of these fees.
LSA-R.S. 13:3666, subd. A provides that
"Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
When determined, such fees are taxed as cost and ordered paid by the party cast in judgment.
Appropriate here is an observation of the Supreme Court in Recreation and Park Commission, etc. v. Perkins, 231 La. 869, 93 So.2d 198, 200 (1957), wherein it was stated:
"Fees to be paid experts depend much on the time lost and the extent of their examination of matters on which they express an opinion and it appears that no absolute rule can be fixed as to the amount to be allowed in all cases. Unquestionably under the provisions of LSA-R.S. 13:3666 experts are entitled to not only a fee for their appearance in court but also an award for their preparatory work, but these fees must be reasonable and somewhat in line with the fees heretofore allowed by the courts of this state."
In the instant case, the work required of and performed by the experts included the search of the conveyance records for recent comparable sales, followed by an inspection and appraisal of such properties to determine their comparability *623 with the subject property, which, of course, required an inspection and appraisal. Of the several properties investigated, four or five were found to serve as "comparables." On a basis of the performance of this work, we cannot conclude there was error in the fixing of fees at $250.00 each for the witnesses' preparatory work. The witnesses were in attendance in court for three days. Their fees for this attendance was fixed at $100.00 per day. This, we think, was excessive. In the cited case (Recreation and Park Commission, etc. v. Perkins, supra), the Supreme Court reduced identical allowances to $50.00 per day.
For the reasons assigned, the judgment appealed is amended by decreasing the award of compensation to be paid by plaintiff to defendant to the principal sum of $12,288.00, and by decreasing the fees of the expert witnesses for their attendance in court to $50.00 per day each, and, as thus amended, it is affirmed.
The defendant is assessed with the cost of this appeal.
Amended and affirmed.
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778 S.W.2d 357 (1989)
Arch and Marylin JOHNSTON, Plaintiffs/Respondents,
v.
Paul and Opal BATES, Defendants/Appellants.
No. 54464.
Missouri Court of Appeals, Eastern District, Division Four.
July 25, 1989.
*359 John D. Rayfield, Crystal City, for defendants/appellants.
Daniel B. Hollingsworth, II, Patricia A. Riehl, Hillsboro, for plaintiffs/respondents.
SATZ, Judge.
In this case, the trial court found plaintiffs (Arch and Marylin Johnston) have an easement by prescription over land owned by defendants (Paul and Opal Bates). Defendants appeal. We affirm.
Based upon our understanding of the exhibits and testimony, the area in question is shown by the following schematic drawing.
*360
*361 In 1952, Maurice and Margaret McClain (grantors) owned a large tract of land in Jefferson County, Missouri.[1] They platted part of the land as an eight lot subdivision. In 1953, defendants bought two of those lots. They bought three more in 1961. That same year, grantors hired Mr. Johnston to excavate, grade and gravel two roads, Ridge View Drive, on the east border of the subdivision and Terrace Drive, on the north border. Between that time and July 22, 1970, defendants acquired the remaining three lots in the subdivision. Grantors continued to own land north and east of the two platted roads.
In 1971, grantors sold a 75.84 acre tract located north of the subdivision to Mitchell Campbell (Campbell). Grantors retained a 14.5 acre tract between the 75 acre tract and the subdivision. The deed to the 75 acre tract granted Campbell "an easement of ingress and egress over, along and across an existing 40' roadway running from the south line of the above described real estate southwardly to State Highway `A', together with the right to repair and maintain the same." From the record, it appears the "roadway" referred to a combination of Ridge View Drive, running north and south along the east border of the subdivision, and Ridge Drive, which continues northward from the north side of east-west Terrace Drive to the southern boundary of the 75 acre tract.
In 1974, plaintiffs purchased from grantors the 14.5 acre tract located between the subdivision and Campbell's 75 acre tract. The conveyance excluded a 1.22 acre tract which was reserved to the grantors. Ridge Drive bisects this 1.22 acre tract.
On June 13, 1979, defendants purchased the 1.22 acre tract from grantors. The following September, the grantors "transferred" their "interest" in Ridge View and Terrace Drives to defendants by a quit claim deed. Then in 1984, plaintiffs purchased the 75 acre tract from Campbell's estate. The deed memorializing this purchase was made "subject to any Easements... of record, if any." By a separate quit claim deed, the executor of Campbell's estate conveyed "[a]n easement of ingress and egress, along and across a 40' roadway running from the south line of [the] 75.84 acre tract, ..., southwardly to State Highway `A',...."
Thus, at the time of trial, defendants held title to the subdivision, Ridge View and Terrace Drives and a 1.22 acre tract north of Terrace Drive which was bisected by Ridge Drive, and plaintiffs held title to the 14.5 acre tract north of the subdivision and to the 75 acre tract north of this 14.5 acre tract. Defendants' 1.22 acre tract was surrounded and enclosed by plaintiffs' 14.5 acre tract. The trial court found that plaintiffs had a prescriptive easement along Ridge Drive and Ridge View Drive for access from the 75 acre tract, purchased from Campbell's estate, to Highway A. Defendants' appeal, contesting this easement, followed.
A prescriptive easement is created by (1) an adverse use, (2) that is continuous and uninterrupted, (3) for the period of prescription. Cramer v. Jenkins, 399 S.W.2d 15, 17 (Mo.1966); Hodges v. Lambeth, 731 S.W.2d 880, 882[4] (Mo.App. 1987). Restatement of Property § 457 (1944). The period of prescription in Missouri is ten years. § 516.110 RSMo.1986; Fenster v. Hyken, 759 S.W.2d 869, 870[1] (Mo.App.1988). That period can be reached by a single continuous, uninterrupted adverse use for ten years or more or by "tacking" together several of such uses, each of which may be less than the ten years but their total amounting to ten years or more. Hodges v. Lambeth, supra at 882.
Adverse use is a more complex concept. A use is adverse to the owner of the interest in land when it is (1) "not made in subordination" to the owner, (2) "wrongful, *362 or may be made by [the owner] wrongful, as to him", and (3) "open and notorious." Restatement of Property § 58 (1944); Cramer v. Jenkins, 399 S.W.2d 15, 17(Mo.1966). To be adverse, it is only necessary for the use to proceed without recognition of the owner's authority to permit or prohibit the use; it is not necessary that the user intend to violate the owner's rights. Fenster v. Hyken, supra, 759 S.W.2d at 870; McIlroy v. Hamilton, 539 S.W.2d 669, 673[3] (Mo.App.1976). Conversely, if the use is permissive, it cannot ripen into a prescriptive use. See, e.g., Powell, Real Property § 413, p. 34-114 (1987).
While the user need not intend to violate the owner's rights, his use must be open and notorious. Fenster v. Hyken, supra at 870. This assures the potential servient owner reasonable notice of the need to protect himself against the effect of the use. See, Auxier v. Holmes, 605 S.W.2d 804, 809[3] (Mo.App.1980); Restatement of Property § 458; comment h. The notice, however, "can be constructive or implied" from circumstantial evidence. Auxier at 810[11]. Circumstantial evidence, also, is often used to show the use has not been made in subordination to the rights of the servient owner. Thus, proof of use of another's land normally justifies a presumption that the use has been adverse until this presumption is rebutted by other evidence. Gill Grain Co. v. Poos, 707 S.W.2d 434, 437[2] (Mo.App.1986); Parker v. Rogers, 698 S.W.2d 617, 618 [4, 5] (Mo. App.1985).
By tacking plaintiffs' use to the use of Campbell, plaintiffs' predecessor in title, the trial court found that plaintiffs showed a continuous, uninterrupted use of the roadways in question for the prescriptive period. The combined use, the court said, raised a "presumption that the use was adverse and under a claim of right." This shifted the burden to defendants, the court said, "to show ... the use was permissive in nature or by virtue of some agreement contrary to the right." Defendants, the court concluded, failed to meet this burden.
There is sufficient evidence to support the Court's findings. When the grantors conveyed the 75 acre tract to Campbell, the deed contained the grant of "an easement of ingress and egress over, along and across an existing 40' roadway running from the south line of the above described real estate southwardly to State Highway `A', together with the right to repair and maintain the same." The basis for grantors' power to grant the easement presumably came from the language of the deeds to the subdivision lots. Those deeds dedicated an easement in the roads to the lot owners and reserved to grantors the right to "convey to others the right to use the [roads] for road purposes." However, in 1971, when Campbell purchased the 75 acre tract, grantors no longer owned any of the lots in the McClain's Ridge View Subdivision; by then, defendants had acquired all eight lots. When defendants purchased the last lot in the subdivision, title was merged in them, extinguishing any easements existing to benefit the individual lots. Denning v. Manley, 610 S.W.2d 51 (Mo.App.1980); Ball v. Gross, 565 S.W.2d 685 (Mo.App.1978).
Thus, at the time grantors attempted to grant Campbell a roadway easement, they retained no interest in the property composing the subdivision and no right to grant an easement on that property. Their conveyance of the easement was legally ineffective. Campbell's use of the easement, made on the assumption the conveyance of the easement was effective, was a use made under a claim of right, not in subordination to the defendants, the owners of the servient estate. Powell, Real Property, § 413, p. 34-113 (1987). See also, Majors v. Bush, 356 Mo. 17, 200 S.W.2d 892, 895 (1947). Campbell need not have intended to violate defendant's rights, it was only necessary that he proceeded to use the easement without recognizing defendants' authority to permit or prohibit the use. Fenster v. Hyken, 759 S.W.2d 869, 870[2] (Mo.App.1988); McIlroy v. Hamilton, 539 S.W.2d 669, 673[3] (Mo.App. 1976).
Defendants, however, contend plaintiffs did not show Campbell's use was open and *363 notorious. Defendants acknowledge a cable was placed across one of the roads, apparently Ridge View Drive, for a period of eight or nine years. But, defendants argue there was no showing "when the cable was set", and, defendants argue, the evidence showed "the use of the cable was to benefit all the owners." In addition, defendants argue, the evidence showed "at most, [that] the Respondents[2] used some of the roads ... eight to ten times per year and the use was mostly for deer hunting." Defendants select only part of the evidence and view that selection most favorably to them. Their argument, based upon this narrowly selected and improperly viewed evidence, is not persuasive.
In this court tried case, we defer to the implicit determination of credibility made by the trial court, view the evidence and permissible inferences most favorably to the judgment and disregard all contrary evidence and inferences. See, e.g. Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo. App.1986). Defendants did not offer any evidence. Plaintiff Mr. Johnston and another witness testified on behalf of plaintiffs. Admittedly, the record is not a model of precision, but defendants had ample opportunity to cross-examine the witnesses.
During Mr. Johnston's testimony, defendants objected to him testifying about Campbell's use of the roads which Mr. Johnston did not personally observe or know about. These objections were sustained. However, Mr. Johnston did testify, without objection, that Campbell used the roadsRidge View Drive, Terrace Drive and Ridge Drivefrom "1971 until ... [Campbell] died", and Mr. Johnston also testified that "Campbell used the road all the time." In addition, Mr. Johnston testified that he put up the cable, but he said "we" put a padlock on it, to which "we" had matching keys. Johnston gave two keys to Campbell, and Campbell gave one of these keys to defendants. The cable was put up "to keep people from travelling in and out of the road."
The trial court, apparently, interpreted Mr. Johnston's use of the term "we", in his testimony about the padlock, not be the royal "we", meaning Mr. Johnston alone; rather, the Court interpreted the "we" to mean Mr. Johnston and Campbell. Thus, the court found
Plaintiffs and ... Campbell have consistently acted in such a manner so as to infer a claim of right to the three roadways.... Certainly, their actions in "cabling off" the roads and then providing a key to the defendants was done under a claim of right that was bought (sic) home to the defendants.
Moreover, the cable remained for eight or nine years, and, although the precise dates of the cable's existence were not shown, it is sensible to infer from the record, as the trial court apparently did, that this eight to nine year period was during Campbell's ownership of the 75 acre tract. In addition, Mr. Johnston testified he was with Campbell when Campbell used the roads, eight or nine times a year to go hunting.
In short, the evidence shows "Campbell used the road all the time", from "1971 until ... he died", cabled off one of the roads along with Mr. Johnston, for eight to nine years, gave a key to the padlock on the cable to defendants, and used the road for hunting eight to nine times a year. This evidence, with favorable inferences, supports the conclusion that defendants were on notice that Campbell was using the roads and, thus, his use was "open and notorious." See Auxier v. Holmes, supra, 605 S.W.2d at 810.
Defendants base another argument on their contention that "the evidence showed at most Respondents [Johnstons] used some of the roads in [the] subdivision eight to ten times per year", "the use was mostly for deer hunting. No regular dates or time were specified." Defendants argue this evidence does not show a continuous and uninterrupted use.
The terms "continuous" and "uninterrupted" are not synonymous; the first refers to the behavior of the claimant, the second refers to the behavior of the potential *364 servient owner. Restatement of Property § 459 (1944). Continuity is construed reasonably. It does not demand the use must be made at all times, day and night. It only requires use often enough to constitute notice of the claim and to show there was no break in the claimant's state of mind. See Auxier v. Holmes, supra at 810.
Mr. Johnston testified that Campbell used the roads "from 1971 ... until he died", "used [one of the roads]" all the time and used the roads eight to ten times a year for hunting. Certainly this evidence does not negate Campbell's "continuity" of use.
Likewise, there is a clear inference from the evidence that Campbell's and Mr. Johnston's uses were uninterrupted. "Uninterrupted", as noted, is a determination based upon the servient owner's actions; i.e., whether the owner's affirmative actions caused a cessation in the use. The owner's ineffective protests or disregarded remonstrances, however, only strengthen the evidence of uninterrupted use. See, Restatement of Property, § 459, comment c. (1944). The record discloses no effective action taken by defendants.
In short, the trial court's finding of a prescriptive easement can be justified by the tacking of Campbell's use and Mr. Johnston's subsequent use of the roads from 1971 to 1985, under a claim of right derived from the invalid easement grantors attempted to convey to Campbell, all done without recognition of any right of defendants to prohibit such use. More important, perhaps, the trial court's finding of a prescriptive easement in plaintiffs can be justified solely on the use of the easement by Mr. Johnston.
Mr. Johnston began his use in 1968. In 1969, he "performed ... road maintenance on Ridge View Drive or Terrace Drive" because he "was using that road to go back to other property [he] owned" at that time, apparently, north of the 75 acre tract. Then, in 1974, the Johnstons "acquired from [grantors] 30.25 acres north of the [75] acre tract and ... adjoined that tract."
Defendants argue Mr. Johnston was given permission to use the easement at that time by the grantors, and, thus, his use initially was permissive and did not ripen into a prescriptive right. Again, defendants read the evidence and permissive inferences in the light most favorable to them, rather than reading the record most favorably to the judgment against them. See, e.g. Snowden v. Gaynor, supra.
In 1968, plaintiff, Mr. Johnston, purchased some land near the area in question, apparently north of the 75 acre tract. He began using Ridge View Drive "to go back into the ... property [he] owned back there." When asked whether he had "obtained an easement to go back and forth across Ridge View Drive at that time". He replied:
I didn't feel I needed one. As far as I was concerned it was a public street.
And then, when asked whether he had asked grantors for permission to use the road, he answered:
I never asked permission. They volunteered when I bought the first ground.
From this testimony, we must make only those inferences most favorable to plaintiffs, not defendants. To us, this testimony shows plaintiff began his use of the roads without recognition of the right in any person or party connected with this cause to permit or prohibit his use, and, therefore, his use was "not made in subordination" to those persons or parties.
Mr. Johnston's use also was "open an notorious" and "continuous and uninterrupted." He testified that he used the roads "all the time," "[p]rior to [his purchase] in 1984." Defendants must have known of this use. As noted, a cable was put across one of the roads, apparently, across Ridgeview Drive. If Campbell and Mr. Johnston together did not put up the cable, then the record can only be read as showing Mr. Johnston put up the cable alone. And, if Campbell and Mr. Johnston together did not control the keys to the padlock on the cable, then Johnston would be the one who "gave" defendants a key, through Campbell. Defendants made no *365 objection to this cable being across the road for eight to ten years. Defendants did have the cable "taken down", but Mr. Johnston said he still continued to use the roads.
Defendants had ample opportunity to establish the exact limits of Mr. Johnston's use of the roads "all the time." However, during cross-, re-cross-and further re-cross examination, defendants failed to do so. None of defendants' questions to Mr. Johnston were designed to elicit answers which would necessarily limit or more precisely define his use of the road "all the time". Each of Mr. Johnston's answers were consistent with his use, and he never contradicted nor hedged his terminology.
To be sure, Mr. Johnston was asked on re-cross examination whether he was with Campbell every time Campbell used the "easement". He answered: "Not every time," only when he went with Campbell "hunting, mostly, [to] see about the property", about "eight or ten times" a year. But this testimony was directed to Johnston's knowledge of Campbell's use of the easement and, therefore, would only affect Mr. Johnston's testimony about Campbell's use of the easement. The trial court weighed that testimony in reaching its conclusion that Campbell's use was adverse, open and notorious and continuous. Simply stated, Mr. Johnston's use when with Campbell is not inconsistent with Mr. Johnston's use "all the time". It is consistent with it.
Thus, the court could have reached its result solely on Mr. Johnston's use. Mr. Johnston's initial adverse use of the easement in question was to go north from Highway A up to and across the 75 acre tract to an undescribed parcel of land he owned "to the rear" of the 75 acre tract. In 1974, however, he purchased a "30.25 acre tract", "north of" and adjacent to the 75 acre tract. Certainly, from 1974 to 1984, the year he purchased the 75 acre tract from Campbell, he used the easement to go from Highway A across the 75 acre tract to his 30.25 acres. The court, thus, could have found that, in 1984, Mr. Johnston has the prescriptive right to the easement in question plus a prescriptive right to an easement across the 75 acre tract. The prescriptive easement now defined by the court was, in 1984, just part of the total easement to which Mr. Johnston had a prescriptive right. In 1984, he purchased the 75 acre tract, and defendants, thus, have no grounds to complain. On appeal, our primary concern is the correctness of the result, not the route taken to reach it. Maryland Plaza Redevelopment v. Greenberg, 594 S.W.2d 284, 286 [1, 2] (Mo.App. 1979).
Defendants also argue the land in question here was "unenclosed, open and rough land", and the use of this kind of land, defendants argue, creates a presumption the use was permissive. As an abstract principle of law, defendants' argument may be correct. See, Burnett v. Sladeck, 251 S.W.2d 397 (Mo.App.1952). However, there was ample evidence here that the area in question was developed, and, therefore, the "wild land" exception does not come into play. See, e.g., Carpenter-Union Hills Cemetery v. Camp Zoe, 547 S.W.2d 196, 202-203[7][8] (Mo.App.1977). Thus, the court found "[t]hat Ridge View Drive, Terrace Drive and Ridge Drive have been visible to the average person since 1952 and are visible to-day."
Finally, defendants argue neither plaintiffs' proof nor the trial court's order describes the easement granted with sufficient precision; in particular, defendants contend, Ridge Drive is not properly described in the proof or order. We disagree.
The fact that Ridge Drive is not described by metes and bounds, either by plaintiffs or the court, does not invalidate the easement. Ridgeview and Terrace Drives were platted, graded and gravelled. They, along with Ridge Drive, were visible to the eye and had been for the period of prescription. A more precise description might have been better, but less detail and precision is required in a rural than urban setting. Kohlleppel v. Owens, 613 S.W.2d 168, 175[9] (Mo.App.1981). The court's granting an easement for "an existing 40' roadway running from the south line of a 75.84 acre tract to land ... southwardly to *366 State Highway `A'" is not "so wanting in descriptive detail as to be either void or unenforceable." Allen v. Smith, 375 S.W.2d 874, 883[23] (Mo.App.1964).
In summary, the trial court's finding of a prescriptive easement can be justified by either of two theories: the tacking of Campbell's use and Mr. Johnston's subsequent use of the roads from 1971 to 1985, under a claim of right derived from the invalid easement grantors attempted to convey to Campbell, all done without recognition of any right of defendants to prohibit such use; or solely on Mr. Johnston's use of the roads from 1968 through 1984 without recognition of any other person's right to prohibit him from that use.
Judgment affirmed.
SMITH, P.J., and STEPHAN, J., concur.
NOTES
[1] The transactions and conveyances in this case cover more than 30 years. During that time, Maurice and Margaret McClain, or Margaret McClain, as a widow, or Margaret McClain and her son conveyed part of this tract to the parties or to a third party, plaintiffs' predecessor in title. For convenience, we shall use the term "grantors" to refer to the McClains either individually or collectively.
[2] We assume, in his context, defendants meant to refer to Campbell not the Johnstons.
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USCA1 Opinion
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-1119 HERTZL SINAI, Plaintiff, Appellee, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL., Defendants, Appellants. ____________________ No. 92-1153 HERTZL SINAI, Plaintiff-Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL., Defendants, Appellees. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Walter Jay Skinner, U.S. District Judge] ___________________ ____________________ Before Torruella, Cyr and Oakes,* Circuit Judges. ______________ _____________________ ____________________ * Of the Second Circuit, sitting by designation. Amy D. Seifer, with whom John D. Corrigan, was on brief for _____________ ________________ defendants. Gabriel O. Dumont, Jr. for plaintiff. ______________________ ____________________ August 24, 1993 ____________________ -2- TORRUELLA, Circuit Judge. After failing to gain ______________ employment at NYNEX Information Resources Co. ("NIRC"), appellee brought suit for race and national origin discrimination under 42 U.S.C. 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. A jury found for the plaintiff on race ______ discrimination, and the district judge, finding himself bound by the jury's factual findings, found for the plaintiff on national origin discrimination. Appellant contends that the evidence was insufficient to sustain the judgments, such that the judge erred when he refused to grant a judgment notwithstanding the verdict. Appellant also contends that the district court instructed the jury incorrectly and issued two erroneous evidentiary rulings. Appellee, in response, complains that the district court refused to grant an additional award of damages under Title VII. Finding this volley of allegations unconvincing, we affirm. We use the same standard to review the evidence in this case that the district judge used when he ruled on the motion for judgment n.o.v. Biggins v. Hazen Paper Co., 935 F.2d 1405, 1409 _______ ________________ (1st Cir. 1992). When a jury has delivered a verdict, we examine the evidence, including all facts and inferences, in the light most favorable to the verdict. Id. We overturn the verdict when ___ the evidence leads a reasonable person to one conclusion and one conclusion only: that the losing party was entitled to win. Id. ___ The evidence, viewed in this light, follows. Appellee was born in Israel of parents of Jewish/Hebrew -3- heritage. He came to the United States in 1973 after a five-year stint in the Israeli Air Force and a two-year stint in sales at a private company. In the United States he received a Bachelor of Science degree from Suffolk University and held various jobs. When his wife, a NIRC employee, told him that positions in directory advertising sales were available at NIRC, appellee submitted a resume and cover letter. This was the first step in appellee's quest to win a position at NIRC, and it occurred in the spring of 1984. NIRC informed appellee that no positions were available at the time, but that his application would be added to the waiting list for future openings. Appellee filed a new application in the Summer of 1984 and followed up with a phone call to the hiring supervisor, Marlene Dumas. During the conversation, Ms. Dumas revealed that applicants needed a college degree and sales experience to pass the initial screening. Appellee responded that he had both, and Ms. Dumas delved further into appellee's career background. Ms. Dumas asked appellee where he came from, or where he received his sales experience. When appellee responded Israel, Ms. Dumas stated "Israel doesn't count." Ms. Dumas denies making this comment, but testified that, in any event, appellee's sales experience in Israel was too far removed in time from the application date to satisfy the requirement. She explained that sales experience garnered more than three to five years earlier is considered stale. Appellee filed a new application in late November and -4- again followed up with a phone call. He was told that he would be interviewed within the coming year. Indeed, appellee was called for a test and interview in March, 1985. He passed the test. During the subsequent interview, Ms. Dumas reportedly asked "Did you say you were from Israel?" and appellee detected a look of disgust on her face. A letter soon followed, informing appellee that he would not be considered further. Undaunted, appellee reapplied in the Summer of 1985, and again in early 1986. In mid 1986, Ms. Dumas left NIRC. Appellee filed yet another application to Ms. Dumas's replacement and again followed up with a phone call. In this conversation, appellee learned that NIRC had adopted a policy forbidding the hiring of NIRC-employee spouses. As appellee's wife worked at NIRC, appellee could not be hired. Stunned, appellee pursued further information from various supervisors. He learned that the alleged "no-spouse" policy was unwritten and informal. Appellee was unsatisfied with this news, as he knew of a couple that was hired after appellee submitted his several applications. During the relevant time period, NIRC made other pertinent hiring decisions. First, NIRC hired several adherents of the Jewish faith for directory advertising sales positions. Second, NIRC hired several individuals who did not meet the stated screening criteria; these individuals either did not have a college degree or did not possess sufficient sales experience. The above culminated in appellee bringing a two-pronged discrimination suit. He claimed that he suffered discrimination -5- on the basis of his Jewish/Hebrew race and on the basis of his national origin, Israel. The race claim arose under 1981, which guarantees that "all persons" in the United States will have the same rights as "white citizens" "to make and enforce contracts." The national origin claim arose under Title VII, which makes the refusal to hire an applicant because of his "race, color, religion, sex, or national origin" unlawful. As plaintiffs are entitled to a jury trial in 1981 cases, but not in Title VII cases, the district judge conducted a jury trial on race discrimination before he himself decided the national origin discrimination claim. Appellant argues that evidence of race and national origin discrimination are not inextricably intertwined in this case, and that appellee failed to adduce any evidence to support a finding of discrimination on the basis of his Jewish/Hebrew race, as opposed to his Israeli national origin. Appellant thus concludes that a rational jury could not have found race discrimination. While we agree with the district court that the evidence of race discrimination was thin in this case, we also agree with the district court that the jury was entitled to reach the result it did. Appellee made out a prima facie case of discrimination as it was described in McDonnell-Douglas Corp. v. _______________________ Greene, 411 U.S. 792 (1973). First, he established that he was ______ Jewish/Hebrew, defined as a protected race by the Supreme Court in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), and _____________________ ___________ -6- Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). Second, __________________________ ____ he applied for a job for which he was qualified.1 Finally, appellee was rejected, but the position remained available to other candidates with similar credentials and even some others with apparently fewer credentials. In addition to establishing the prima facie case of discrimination, appellee testified that Ms. Dumas twice disparaged appellee's Israeli background. Although appellant claims that these events do not establish race discrimination, the jury could find that Israel is one of those countries in which the populace is composed primarily of a particular race. As Justice Brennan stated of race and national origin discrimination, often "the two are identical as a factual matter: one was born in the nation whose primary stock is one's own ethnic group." Saint Francis College, 481 U.S. at 614 (Brennan, _____________________ J., concurring). That Israel is a Jewish state, albeit not composed exclusively of Jews, is well established. Furthermore, it is undisputed that appellee is of Hebrew/Jewish descent, the stock primarily associated with Israel. The jury thus could have determined that NIRC, through Ms. Dumas, discriminated against appellee on the basis of his Hebrew/Jewish race by disparaging Israel. The jury also could have chosen to disregard NIRC's ____________________ 1 It is undisputed that appellee earned a college degree. As for his career experience, we are satisfied that he was qualified because he passed the initial screening process and passed the required test. Furthermore, appellee presented evidence that less well qualified candidates were hired over him. -7- evidence. NIRC attempts to defuse the allegation of discrimination by pointing out that several adherents of the Jewish faith were hired for directory advertising positions. The jury could have determined, however, that the other Jewish hires did not rebut appellee's contention of race discrimination. The relevant issue in a discrimination claim is whether the defendant discriminates against the plaintiff on an improper basis. The fact that the defendant hired other members of the protected class is evidence that the jury can consider in reaching the ultimate issue, but is not dispositive in itself. The jury must weigh all of the evidence. In this case, the jury could conclude that appellant discriminated against appellee on the basis of race in spite of the other Jewish hires. The fact that NIRC advanced different reasons for refusing to hire appellant at different times could have led the jury simply to disbelieve NIRC. NIRC first alleged that no jobs were available and that appellee's resume was unclear. NIRC then alleged that appellee was not as qualified as other candidates. Finally NIRC announced that it had adopted a "no-spouse" policy barring appellee's employment. This policy was unwritten and, according to Ms. Dumas, not communicated to her until May 1986, even though it was adopted in late 1984 or early 1985. The jury easily could have determined that these reasons were unsatisfactory, not true, or a pretext to cover up racial animus. Indeed, appellee presented evidence that applicants with fewer credentials than appellee were hired -- directly contradicting -8- one of NIRC's rationales. We conclude that the evidence is not so heavily weighted in appellant's favor to justify setting aside the jury verdict. The jury was entitled to find that appellee's race led to his failure to gain employment at NIRC. The evidence does not lead inescapably to the opposite conclusion. Appellant complains that the district court improperly allowed the jury to mingle race discrimination with national origin. During its deliberations, the jury presented the following questions to the district judge: "Does discrimination because of race carry the same weight as discrimination because of national origin? Or are they to be considered the same in this case?" The judge responded by emphasizing that the case only confronted the jury with the issue of race discrimination. The judge added that "you can also consider, however, whether any comments or any evidence about national origin may bear, may have a significance to you in determining whether there was a discrimination on the basis of race." We find no error in this instruction. We already noted with approval the comments made by Justice Brennan in Saint _____ Francis College, and believe that the exchange discussed above _______________ reflects those comments. To repeat, race and national origin discrimination may present identical factual issues when a victim is "born in a nation whose primary stock is one's own ethnic group." The judge properly responded to the jury's question: in certain circumstances, including the present case, national -9- origin and race discrimination may overlap. The judge did not tell the jury that national origin discrimination was identical to race discrimination, however. He instructed them that national origin discrimination could be used, together with other evidence, to arrive at a conclusion vis-a-vis race discrimination. We come now to two evidentiary rulings that appellant claims were erroneous. We review them only for abuse of discretion. Losacco v. F.D. Rich Construction Co., 992 F.2d 382, _______ __________________________ 385 (1st Cir. 1993); Willhauck v. Halpin, 935 F.2d 689, 717 (1st _________ ______ Cir. 1991). Appellant first contends that the district court judge improperly allowed certain testimony by appellee's expert psychologist. According to the doctor, Mr. Sinai was extremely depressed, but his prognosis was good if appellee was vindicated by the court in his discrimination claim. In anticipation of this testimony, appellant raised an objection, arguing that it only served to encourage a verdict on improper grounds, and was therefore unduly prejudicial. The trial transcript shows that the judge carefully considered the objection. He found the doctor's prognosis for Mr. Sinai's depression to be such an important piece of evidence that it would have been unfair to exclude it. He concluded that the testimony gave the jury a way to limit damages for future emotional distress, in the event that it rendered a verdict for Mr. Sinai. Furthermore, the judge felt that appellant's counsel -10- could undo any prejudice by arguing in summation that the trial process was not a therapeutic process for the jury to cure Mr. Sinai's ailments regardless of fault. Finally, the judge vowed to intervene if the witness entered into any improper testimony. In short, the district judge realized that he faced a close issue, weighed the alternatives, and reached the most satisfactory conclusion. Under these circumstances, we cannot find an abuse of discretion in the district court's ruling. Appellant's next claim of evidentiary error concerns appellee's deteriorating relationship with his wife, and her own discrimination and harassment claims. Again, the disputed testimony came from appellee's psychologist, this time during redirect examination. The doctor stated that "[s]he experienced what she believed was harassment by [appellant] because of . . . her husband's decision to file charges against [appellant] for job discrimination against himself." According to the doctor, this harassment formed the basis of the Sinai's marital difficulties, and, in turn, Mr. Sinai's depression. It appears that Mrs. Sinai filed a claim against appellant with the Massachusetts Commission Against Discrimination and received a favorable ruling, which fact came out in the doctor's testimony. During the previous cross-examination, appellant's counsel used the doctor's testimony to imply that appellant's depression stemmed from preexisting marital difficulties, not from difficulties related to appellant's discrimination claim. By opening the door to the issue of appellee's marital -11- relationship, appellant exposed itself to rebuttal testimony such as that offered. Appellant cannot now complain about that testimony. See McDonald v. Federal Laboratories, Inc., 724 F.2d ___ ________ __________________________ 243, 248 (1st Cir. 1984) (we will not reverse an evidentiary ruling "where the party claiming error invited or elicited the alleged error"). Furthermore, the district judge found appellant's objection to this testimony untimely and therefore unavailing. Indeed, the witness, knowing that his testimony was controversial, paused before proceeding and asked the judge whether to continue. The judge noted that he heard no objections, and therefore told the doctor to proceed. While an objection was raised immediately after this ruling, it was not an abuse of discretion to conclude to reject it. We come now to appellee's contention that the district court erred in not granting a separate recovery for the Title VII claim. Appellee claims that the jury award, $95,000, is legal in character; Title VII, on the other hand, is equitable and carries with it equitable remedies. Appellee believes that he is entitled to both kinds of remedies; essentially, he contends that he is entitled to the $95,000 plus money for front pay, the pay that he would have received had the district court ordered appellant to hire him. We cannot accept this argument. The purpose of damages under Title VII is to make the plaintiff whole. Albemarle Paper _______________ Co. v. Moody, 442 U.S. 405 (1975). The district court is vested ___ _____ -12- with a broad range of equitable powers to carry out this mandate. See 42 U.S.C. 2000e-5(g) (listing "reinstatement or hiring of ___ employees, with or without back pay . . . or any other equitable relief as the court deems appropriate" as available relief). Contrary to appellee's protestations, the district judge did not allow the 1981 verdict to limit his equitable powers under Title VII improperly. He simply found that the jury already gave appellee all that he was entitled to receive. Cf. ___ Wildman v. Lerner Stores Corp., 771 F.2d 605, 616 (1st Cir. 1985) _______ ___________________ (in Age Discrimination in Employment Act suit, the district court has discretion on whether award of front pay is necessary). The jury was presented in the 1981 claim with evidence concerning back pay, front pay, and emotional distress, and instructed to determine the appropriate level of damages for them. These are, essentially, the damages authorized under Title VII. The district court properly concluded that any further relief would have been improper. Affirmed. ________ -13-
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521 F.2d 1397
U. S.v.Thornburg
73-1395
UNITED STATES COURT OF APPEALS First Circuit
7/22/75
1
D.P.R.
AFFIRMED
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624 F.2d 1103
Textron, Inc.v.Milford Rivet & Machine Co.
79-1547, 79-1548
UNITED STATES COURT OF APPEALS Seventh Circuit
11/14/79
1
N.D.Ill.
AFFIRMED
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543 U.S. 914
BUTLERv.UNITED STATES.
No. 04-5964.
Supreme Court of United States.
October 4, 2004.
1
C. A. 6th Cir. Certiorari denied.
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94 F.3d 655
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
In re: James Allen ELLIOTT, Debtor,Jack Cornelius, Appellee,v.James Allen ELLIOTT, Appellant.
No. 95-6395.
United States Court of Appeals, Tenth Circuit.
Aug. 14, 1996.
ORDER AND JUDGMENT*
Before PORFILIO, BRIGHT,** and KELLY, Circuit Judges.
KELLY, Jr., Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Appellant James Allen Elliott filed a voluntary Chapter 12 bankruptcy petition in the Bankruptcy Court for the Western District of Oklahoma and eventually filed a motion to dismiss his petition. The bankruptcy court dismissed the bankruptcy petition without prejudice, holding that a debtor has an absolute right to dismiss his own bankruptcy proceeding. The bankruptcy court also found insufficient evidence to find bad faith on the part of Mr. Elliott.
3
The Chapter 12 trustee appealed. On appeal, the district court affirmed the conclusion of the bankruptcy court that a debtor has an absolute right to terminate his own bankruptcy proceeding and further held that the bankruptcy court's finding regarding bad faith was not clearly erroneous.1 The trustee did not appeal the judgment of the district court, but Mr. Elliott attempts to do so.
4
In order to have standing to appeal an order of a bankruptcy court, a litigant must show that "he is a 'person aggrieved' by the challenged bankruptcy court order." Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1500 (10th Cir.), cert. denied, 115 S.Ct. 77 (1994). "That is, only a person 'whose rights or interests are directly and adversely affected pecuniarily by the decree or order of the bankruptcy court' may appeal." Id. (quoting Holmes v. Silver Wings Aviation, Inc., 881 F.2d 939, 940 (10th Cir.1989)).
5
It is clear here that Mr. Elliott is not an "aggrieved person" for purposes of this appeal. He petitioned the bankruptcy court to dismiss his appeal; it did so without prejudice. The bankruptcy court further found that Mr. Elliott had not been guilty of bad faith. Both findings were affirmed by the district court. Mr. Elliott has not been adversely affected, pecuniarily or otherwise, by the actions of the bankruptcy and district courts. He, therefore, may not appeal.
6
This appeal is dismissed for lack of standing. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
**
Honorable Myron H. Bright, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation
1
The district court remanded the case to the bankruptcy court for further findings on contempt motions brought by the trustee which have since been withdrawn
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142 N.W.2d 563 (1966)
STATE of Minnesota, Respondent,
v.
John LIMBERG, Appellant.
No. 39737.
Supreme Court of Minnesota.
April 22, 1966.
*564 Edward R. Kenneally, Minneapolis, for appellant.
Robert W. Mattson, Atty. Gen., St. Paul, George M. Scott, County Atty., Theodore Rix, Asst. Co. Atty., Minneapolis, James Miller, County Atty., Grand Rapids, Mich., for respondent.
SHERAN, Justice.
Appeal from an order of the district court discharging a writ of habeas corpus.
In August 1964, the governor of the State of Michigan instituted extradition proceedings against John Limberg. The requisition warrant alleged that Limberg was a fugitive from justice in that he had been charged with having committed forgery at Grand Rapids, Michigan, on or about May 12, 1964, together with John Hindenach and Lorraine Faye Hoffman; that he had been present in the State of Michigan at the time the alleged crime was committed; and that he had fled therefrom. The requisition warrant was accompanied by (a) a certified copy of a criminal complaint sworn to by Clair Durfey, a deputy sheriff, before the police court of Grand Rapids, Michigan; (b) an affidavit of the same Clair Durfey; and (c) a certified copy of a criminal warrant issued by the Grand Rapids Police Court.
The governor of Minnesota recognized this demand for extradition and authorized the arrest and detention of Limberg who was then in the custody of the sheriff of Hennepin County pursuant to a fugitive warrant issued on complaint by the municipal court for the city of Minneapolis.
Appellant petitioned the District Court of Hennepin County for a writ of habeas corpus challenging the validity of the extradition. The writ was issued but, after a hearing, discharged.
In State ex rel. Gegenfurtner v. Granquist, 271 Minn. 207, 135 N.W.2d 447, we said that four requisites to valid extradition are the following:
(1) The demand for extradition and the warrant issued in response to it are in proper form.
(2) The criminal charge pending in the demanding state is adequate to support extradition.
(3) The person seeking relief from extradition is identical with the person named in the demand.
(4) The person confined by virtue of the extradition warrant was actually present in the demanding state at the time the offense was committed or, if not, did perform an act outside of the demanding state intending that the result be the accomplishment of a crime in such state.
Appellant contends that two of these requisites are lacking because (1) *565 the demand for extradition failed to satisfy the statutory directive that it be accompanied by an affidavit made before a magistrate, and (2) the testimony of appellant at the habeas corpus hearing established his absence from Michigan on May 12, 1964, or at any time thereafter.
1. Minn.St. 629.03 provides:
"No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless * * * accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, * * *." (Italics supplied.)
Michigan's demand for extradition was not accompanied by a copy of either an indictment or an information. The affidavit of Clair Durfey describing the nature of the appellant's complicity in the alleged offense is insufficient since it was not made before a magistrate. Thus, appellant argues that the demand was not in proper form and was improperly recognized by the governor of Minnesota.
However, an examination of the accompanying complaint reveals that it satisfies the affidavit requirement since it was sworn to before a judge of the Grand Rapids Police Court. This conclusion is consistent with State ex rel. Grande v. Bates, 101 Minn. 303, 112 N.W. 260; State ex rel. Denton v. Curtis, 111 Minn. 240, 126 N.W. 719; State ex rel. Nemec v. Sheriff, 148 Minn. 484, 181 N.W. 640; and State ex rel. Webster v. Moeller, 191 Minn. 193, 253 N.W. 668, all of which hold that a verified complaint satisfies the substantially identical affidavit requirement of Federal law.[1]
In this connection appellant also challenges the sufficiency of the accompanying papers to satisfy the affidavit requirement because the statements of the affiant Clair Durfey in either the complaint or the separate affidavit are obviously hearsay and are based upon the uncorroborated testimony of alleged accomplices to the crime. We find no merit in this contention since the statute does not require that the requisite affidavit be based upon personal knowledge[2] and, in any event, the question of whether or not the demanding state has sufficient evidence to convict an alleged fugitive from justice cannot be considered in an extradition proceeding.[3]
2. According to the testimony given by appellant at the hearing below, he left Minneapolis on May 11, 1964, with John Hindenach in the latter's automobile bound for the World's Fair in New York. They *566 reached South Bend, Indiana, and parted company. Hindenach told appellant that he was going to Grand Rapids, Michigan, and took appellant to the South Bend bus depot. Appellant remained at the bus depot for some time "trying to figure out whether I would hitch-hike back to Minneapolis or whether I could talk Hindenach into giving me a ride back to Minneapolis." At some later time Hindenach returned and the two continued on their trip to New York. Appellant denied having been in Michigan on May 12 or at any time thereafter.
Appellant's was the only testimony before the district court.
The district court rejected appellant's claim of absence from the State of Michigan at the relevant times because (a) the claim raised the question of guilt or innocence which is not cognizable in an extradition proceeding; (b) the extradition papers taken together made an adequate showing of the appellant's presence in Michigan; and (c) "the court is not impressed with the testimony in evidence of relator."
A statement of these established principles serves to highlight the precise issue to be decided here:
(a) Where, as here, the person is described in the demand for extradition as a fugitive from justice rather than as a person charged with "committing an act in this state, or in a third state, intentionally resulting in a crime in the state, whose executive authority is making the demand,"[4] the presence of the person in the demanding state at the time the alleged offense was committed is a vital condition to the validity of the extradition proceedings.[5]
(b) While, as noted above, the asylum state has no power to inquire into the guilt or innocence of the person whose extradition is demanded, and while proof of absence from the demanding state at the time the alleged offense was committed necessarily involves facts that would constitute an alibi, it is generally held that a person confined pursuant to an extradition warrant may, in a habeas corpus proceeding, assert his absence from the demanding state as a fact defeating the power of the asylum state to render him.[6] There is a distinction, though often subtle, between proof of absence from the state for purposes of negativing the condition of extradition and proof of an alibi as such for purposes of establishing innocence.
(c) The bare assertion of the person whose extradition is sought that he was not present in the demanding state will be of no avail in the absence of evidence since the rendition warrant of the governor of the asylum state is itself presumptive or prima facie proof of his presence.[7]
(d) Where the person whose extradition is sought does present evidence of his absence from the demanding state, the presumptive effect of the rendition warrant places the burden upon him to prove his absence.[8] That burden is a strenuous one, not being satisfied by a mere preponderance of the evidence,[9] but requiring *567 evidence that "clearly and satisfactorily"[10] or "conclusively"[11] proves absence. Conversely stated, "the question of alibi is not open for consideration if there is fair evidence that the appellant was at the place of the crime at the time of it."[12]
An example of the effect of this burden of proof in operation is In re Sanders, 154 Minn. 41, 191 N.W. 391, where we held that the testimony of one North Dakota witness was not overborne by that of the nine or ten disinterested and credible witnesses presented by relator even though all of the latter testified that relator was in St. Paul on the day of an alleged robbery in North Dakota. The imposition of such a severe burden of proof on the relator is no doubt the result of a reluctance to disturb the finding of the executive, implicit in the issuance of the rendition warrant, that the relator was in fact present in the demanding state.
It is noted that in every case in this jurisdiction where the relator attempted to prove his absence from the demanding state, some contradictory testimony, though at times meager, was presented. This brings us to the precise question presented by this appeal: Is the presumptive effect of the rendition warrant when supported by affidavits accompanying the demand for extradition sufficient in itself to repel the positive testimony of the appellant that he was not present in the demanding state?[13] Stated another way: When the appellant takes the stand, and, while under oath and subject to cross-examination, positively declares that he was not present in the demanding state, must the demanding state present some testimony to contradict that declaration or may it merely rest upon the extradition papers and the affidavits therein?
We agree that no useful purpose is served by unduly restricting extradition since the ultimate question of guilt or innocence can only be determined in the demanding state. Nevertheless, having in mind the expense, inconvenience, and jeopardy involved in defending against a criminal charge in another state, we hold that where an appellant positively and unequivocally testifies that he was not present in the demanding state at the time of the alleged offense, that state must present some testimony that will be subject to cross-examination by appellant's counsel to support the allegation that he was present. This ruling places but little burden upon the demanding state because our decisions require only slight evidence to support the rendition warrant.
We note from appellant's petition for habeas corpus that the claim of absence from the demanding state was not clearly stated and perhaps did not give notice to Michigan of his intention to offer testimony on the question. We, therefore, remand this case to the district court with directions to vacate the order discharging the writ and to allow the State of Michigan 30 days from receipt of this court's remittitur to supply the testimony required by this opinion. If satisfactory testimony is supplied within that period, the writ of habeas corpus should be discharged. If satisfactory testimony is not provided within that period, the appellant should be released.
Remanded to the district court with directions to proceed in accordance with this opinion.
NOTES
[1] See 62 Stat. 822, 18 U.S.C.A. § 3182, which provides in part: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear." (Italics supplied.)
[2] In State ex rel. Webster v. Moeller, 191 Minn. 193, 253 N.W. 668, we held that a complaint sworn to by the prosecuting attorney on information and belief satisfied the affidavit requirement.
[3] Minn.St. 629.20 provides: "The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form, as provided, shall have been presented to the governor, except as may be involved in identifying the person held as the person charged with the crime."
[4] See, Minn.St. 629.06.
[5] See, State ex rel. Gegenfurtner v. Granquist, 271 Minn. 207, 135 N.W.2d 447; and cases collected in Note, 31 Minn.L.Rev. 703, at 706, 707.
[6] See, State ex rel. Bond v. Langum, 135 Minn. 320, 160 N.W. 858; State ex rel. Liimatainen v. Boekenoogen, 140 Minn. 120, 167 N.W. 301; State ex rel. Rogers v. Murnane, 172 Minn. 401, 215 N.W. 863; and cases collected in Annotations, 51 A.L.R. 797 and 61 A.L.R. 715.
[7] See, State ex rel. Arnold v. Justus, 84 Minn. 237, 87 N.W. 770, 55 L.R.A. 325; State ex rel. Denton v. Curtis, 111 Minn. 240, 126 N.W. 719.
[8] See, In re Sanders, 154 Minn. 41, 191 N.W. 391; State ex rel. Rogers v. Murnane, 172 Minn. 401, 215 N.W. 863; and cases collected in Annotation, 51 A.L.R. 804 to 811.
[9] See, State ex rel. Liimatainen v. Boekenoogen, supra.
[10] The "clear and satisfactory" standard is drawn from People ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L. Ed. 121.
[11] The "conclusive" standard is drawn from Munsey v. Clough, 196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515.
[12] State ex rel. Rogers v. Murnane, 172 Minn. 401, 403, 215 N.W. 863, 864.
[13] Cases from other jurisdictions which seem to answer this question in the affirmative include Germain, Petitioner, 258 Mass. 289, 155 N.E. 12, 51 A.L.R. 789, and Ex parte Hatfield, 90 Tex.Cr. 293, 235 S.W. 591.
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11 Cal.3d 801 (1974)
523 P.2d 617
114 Cal. Rptr. 577
CLEAN AIR CONSTITUENCY et al., Petitioners,
v.
CALIFORNIA STATE AIR RESOURCES BOARD, Respondent.
Docket No. S.F. 23093.
Supreme Court of California. In Bank.
June 27, 1974.
*805 COUNSEL
Mary D. Nichols, Paul, Hastings, Janofsky & Walker, Dennis H. Vaughn, Donald A. Daucher, Munger, Tolles, Hills & Rickershauser and Dennis C. Brown for Petitioners.
Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, Jeffrey C. Freedman and Alan Robert Block, Deputy Attorneys General, for Respondent.
OPINION
MOSK, J.
This is a proceeding for an original writ of mandate brought against the California State Air Resources Board (hereinafter ARB) by an association of individuals and groups concerned with implementing clean air legislation, together with two manufacturers of pollution control devices and a private citizen residing in Los Angeles County.
The issue is whether the ARB has authority to delay its oxides of nitrogen pollution control program for the stated reason of conserving gasoline during the energy crisis. Initially, we are called upon to determine whether this court may assume original jurisdiction in mandamus under article VI, section 10, of the California Constitution. If jurisdiction exists, we must consider whether the Legislature has conferred discretionary authority upon the ARB to delay the program for the control of atmospheric emissions of oxides of nitrogen (hereinafter NOx) and, if such discretion exists, whether the ARB may exercise this discretion to help alleviate the energy crisis. We examine those sections of the Health and Safety Code and related statutes which authorize the ARB to administer a statewide program to equip 1966 through 1970 model year vehicles (hereinafter the subject *806 vehicles) with devices to control vehicular emissions of NOx (Health & Saf. Code, §§ 39107.6, 39177.1-39177.4; Veh. Code, § 4602, hereinafter NOx legislation).
For the reasons discussed infra we hold that this court is entitled to exercise original jurisdiction in mandamus under article VI, section 10, of the California Constitution; that the ARB has limited discretionary authority to delay the NOx program; but that it has no authority to delay this program for reasons related to the energy crisis. Accordingly, petitioners are entitled to a peremptory writ vacating the ARB's action to delay the installation programs and ordering the ARB to implement and enforce the NOx installation program in the manner directed by statute.
In 1971, the Legislature amended the Mulford-Carrell Air Resources Act (Stats. 1967, ch. 1545, p. 3680) to require the ARB to set standards for devices which would significantly reduce the emission of NOx from the exhaust of certain 1966 through 1970 model year vehicles and to establish a program for the installation of pollution control devices. (Health & Saf. Code, § 39107.6.) Generally, this amendment (Stats. 1971, ch. 1507, p. 2978) provides for the installation of NOx control devices in every subject vehicle and empowers the ARB to establish by regulation a schedule of installation. (Health & Saf. Code, § 39177.1.) The legislation states that certificates of compliance shall be required upon initial registration and transfer of ownership of subject vehicles (Health & Saf. Code, § 39177.1, subd. (b) (2)), and shall be required for all subject vehicles upon renewal of registration in 1973 (Health & Saf. Code, § 39177.1, subd. (b)(3)). In addition, the NOx legislation authorizes the ARB to delay the latter requirement "for extraordinary and compelling reasons only"; in such event, the ARB may adjust its schedule of installation but must immediately report to the Governor and the Legislature. (Veh. Code, § 4602, subd. (b).)
After an initial delay caused by a shortage of mechanics and pollution control devices, the ARB established its first schedules for the installation program. One schedule, corresponding to the certificate provision of section 39177.1, subdivision (b)(2), required the mandatory installation of NOx devices upon the transfer of ownership and initial registration of subject vehicles. The dates on which this requirement would take effect depended upon geographical area and ranged from February 1 to June 1, 1973.
In addition to the geographical schedule, the ARB adopted a schedule *807 for the installation of devices based on the last arabic number on the license plates of subject vehicles. By this schedule, the ARB required all owners of subject vehicles to install pollution control devices between the dates of June 1973 and April 1974. This schedule facilitated the section 39177.1, subdivision (b)(3), requirement for certificates upon renewal of registration. Although the code section required certificates of compliance upon renewal of registration for the year 1973, the ARB delayed the certificate requirement under the "extraordinary and compelling reasons only" clause of Vehicle Code section 4602 until renewal of registration for the year 1975. Apparently, this date was intended to correspond to the declared California goal of pure air with no significant adverse effect from motor vehicle air pollution by 1975. (Health & Saf. Code, § 39081, subd. (d), added by the Pure Air Act of 1968, Stats. 1968, ch. 764, § 8, p. 1467.)
In June 1973 the ARB again deferred the installation program. The board had received data which indicated that some devices might cause engine damage. Consequently, the ARB suspended the announced installation schedules pending a reconsideration of its decision to accredit some NOx devices. (See Cal. Admin. Code, tit. 13, § 2002, subd. (a).) Shortly thereafter, however, the ARB adopted new schedules which would have required the installation of NOx devices by the end of 1974.
On December 19, 1973, the ARB voted for a third time to delay the installation program. (Resolution No. 73-27G.) The ARB justified this action on a theory that the energy crisis presented an extraordinary and compelling reason for further delay. Accordingly, it resolved to postpone the installation program based on the license plate schedule by one year and to defer the installation of devices upon initial registration and transfer of ownership (the geographical schedule) from January 1, 1974, to April 1, 1974.[1] In accordance with the one-year delay of the license plate schedule, the ARB deferred the requirement of certificates of compliance upon renewal of registration from 1975 to 1976. The effect of the new geographical schedule was to postpone the installation requirement upon initial registration and upon transfer of ownership in rural areas by three months.[2]
According to the ARB's staff report, this delay will result in the emission *808 of an additional 100 tons of NOx per day from 1966-1970 model year vehicles in 1974 and 30 tons per day in 1975. In contrast to these statistics, the resolution will prevent an increase in gasoline consumption of approximately .5 percent in 1974 and .13 percent in 1975.
The Writ of Mandate
(1) The Supreme Court has original jurisdiction in mandamus pursuant to article VI, section 10, of the California Constitution, and will exercise that jurisdiction in appropriate cases when "the issues presented are of great public importance and must be resolved promptly." (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845 [59 Cal. Rptr. 609, 428 P.2d 593]; Mooney v. Pickett (1971) 4 Cal.3d 669, 675 [94 Cal. Rptr. 279, 483 P.2d 1231].) If these criteria are satisfied, the existence of an alternative appellate remedy will not preclude this court's original jurisdiction. (Cal. Civil Writs (Cont.Ed.Bar 1970) § 5.39, p. 91; see Acton v. Henderson (1957) 150 Cal. App.2d 1, 7 [309 P.2d 481].)
The present case presents a question of great public importance which must be resolved promptly: whether the ARB has authority to delay the NOx program because of the energy crisis. If this program is delayed pursuant to the ARB's resolution and emergency regulations, the result will be the production of an additional 100 tons of NOx per day to pollute the air of California.
The Legislature has underscored the public significance of the pollution control device program. In the urgency section of the NOx act, the Legislature declared that the 1966 through 1970 vehicles do not eliminate enough of the oxides of nitrogen to insure the health and safety of the majority of California's citizens. Because oxides of nitrogen are "dangerous substances," the Legislature declared its desire that "such devices [be] installed on most of such passenger vehicles within the shortest time possible." (Stats. 1971, ch. 1507, § 8, p. 2981.)
Finally, the new delay may cause the emergence of an inadequate supply of interested manufacturers and devices when and if the program resumes. According to the declarations of several accredited device manufacturers who are plaintiffs in this action, they will lose substantially all their investments in the NOx device program if the program is delayed. Suppliers of component parts for these devices and distributors of the finished product *809 are alleged to be experiencing similar difficulties. Consequently, their continued participation in the program is seriously endangered.[3]
(2) The writ of mandate is appropriate to review the actions of the ARB. The courts may rely upon mandamus under Code of Civil Procedure section 1085 to review the validity of a quasi-legislative action. (Cal. Civil Writs (Cont.Ed.Bar 1970) § 5.37, p. 89.) If an administrative agency has exceeded its authority in the exercise of its quasi-legislative powers, a court may issue a writ of mandate. (See Griffin v. Board of Supervisors (1963) 60 Cal.2d 318 [33 Cal. Rptr. 101, 384 P.2d 421]; Manjares v. Newton (1966) 64 Cal.2d 365 [49 Cal. Rptr. 805, 411 P.2d 901].)
Discretionary Authority to Delay the NOx Program
On three occasions, the ARB has assumed discretionary authority to delay the NOx pollution control device program which was enacted by the Legislature as an urgency statute. (Stats. 1971, ch. 1507, § 8, p. 2981.) (3) Without passing on the validity of the ARB's exercise of discretion in each instance, we believe, as a general proposition, that the NOx legislation confers a limited discretionary authority upon the ARB to delay the NOx installation program by postponing the requirement for certificates of compliance upon renewal of registration and by making corresponding adjustments in the geographical and license plate schedules by which this program is implemented.
The ARB may postpone the requirement that owners of subject vehicles file certificates of compliance upon renewal of registration and may defer the statewide license plate schedule by which this requirement is satisfied when "extraordinary and compelling reasons" justify this action. (Veh. Code, § 4602, subd. (b).) Under Health and Safety Code section 39177.1, subdivision (a), the ARB has authority to adopt installation schedules by which subject vehicles are required to be equipped with NOx devices. These schedules must facilitate the execution of the requirement embodied in Health and Safety Code section 39177.1, subdivision (b)(3), which provides that "certificates of compliance shall be required upon renewal of registration for the year 1973, pursuant to Section 4602 of the Vehicle Code." Under Vehicle Code section 4602, subdivision (b), however, the ARB may defer the requirement for certificates of compliance upon renewal of registration for 1973 "for extraordinary and compelling reasons only." In such event, the board may adjust installation schedules adopted pursuant to Health and Safety Code section 39177.1, subdivision (a). Therefore, *810 we conclude that the ARB has authority to delay both the requirement for certificates of compliance upon renewal of registration and to adjust the license plate schedule adopted pursuant to section 39177.1, subdivision (a), if, in fact, extraordinary and compelling reasons for taking such action exist.
We also conclude that the ARB possesses an area of discretionary authority to adjust the geographical schedule by which subject vehicles are to be equipped with NOx devices upon initial registration and upon transfer of ownership. This conclusion emerges whether the source of authority to adopt the geographical schedule is Health and Safety Code section 39177.1, subdivision (a), as plaintiffs contend, or is Health and Safety Code section 39176.1, as defendant contends.
As stated previously, Health and Safety Code section 39177.1, subdivision (a), declares that the ARB shall require owners of 1966-1970 model year vehicles to install NOx devices in accordance with a schedule to be determined by regulation adopted by the board. Section 39177.1, subdivision (b), provides for the enforcement of subdivision (a) by requiring among other things that certificates of compliance shall be necessary upon change of ownership (i.e., upon initial registration and upon transfer of ownership and registration) (Health & Saf. Code, § 39177.1, subd. (b)(2)) and by requiring certificates upon renewal of registration for the year 1973 (Health & Saf. Code, § 39177.1, subd. (b)(3)). It may be argued that the provision to establish an installation schedule in subdivision (a) confers authority upon the ARB to adopt a geographical schedule in addition to the license plate schedule as a means of implementing primarily the requirement for certificates upon change of ownership in subdivision (b)(2) and secondarily the statewide requirement for certificates upon renewal of registration in subdivision (b)(3). As noted, these requirements are the means chosen by the Legislature to enforce the installation requirement of subdivision (a). Therefore, we conclude that the promulgation of the geographical schedule was authorized under section 39177.1, subdivision (a).
If section 39177.1, subdivision (a), is the source of the geographical schedule, then related code sections authorize the ARB to make adjustments in this schedule to provide for reasonable delays in the NOx installation program. As stated previously, the requirement for certificates upon renewal of registration may be postponed for extraordinary and compelling reasons. (Veh. Code, § 4602, subd. (b).) Moreover, if the ARB defers this requirement for appropriate reasons, it may make corresponding adjustments in the schedules it has adopted under Health and Safety Code section 39177.1, subdivision (a). (Veh. Code, § 4602, subd. (b).) *811 (4) Since the ARB had authority to establish the geographical schedule under section 39177.1, subdivision (a), we hold that the ARB may make discretionary adjustments in this schedule to correspond to a delay in the statewide requirement for certificates of compliance upon renewal of registration. While the geographical schedule primarily serves to implement the requirement to install NOx devices upon change of ownership, this schedule and requirement are merely a phase-in step to statewide installation through the license plate schedule and the requirement for certificates upon renewal of registration. Therefore, it would be appropriate for the ARB to adjust both the license plate schedule and the geographical schedule when it has extraordinary and compelling reasons to delay the requirement for certificates upon renewal of registration.[4] When the Legislature enacted the NOx legislation, it chose to require the installation of accredited NOx devices for 1966 through 1970 model vehicles and to provide for the establishment of installation schedules in a separate statute, section 39177.1. If sections 39176 and 39176.1 were intended to apply to the NOx program, the Legislature might have been expected to incorporate these grants of authority into the NOx legislation instead of granting similar authority in a separate code section.
*812 (5) Sections 39176.1 and 39177.1 (NOx legislation) conflict with one another. While the former section permits the ARB to designate counties in which resident owners of vehicles shall be exempt from the installation requirement, the emergency NOx legislation requires every 1966 through 1970 model vehicle of under 6,001 pounds to be equipped with an NOx device meeting the standards established under Health and Safety Code section 39107.6. (Health & Saf. Code, § 39177.1, subd. (a).)
Other preexisting sections of article 5 of the Air Resources Act, as amended (Health & Saf. Code, §§ 39175-39184), do not appear to apply automatically to the 1971 NOx legislation. For example, section 39177, which is part of the 1968 act and interrelates with sections 39176 and 39176.1, gives the ARB limited discretion to exempt certain types of vehicles from compliance with installation requirements. Section 39177.2 of the new NOx legislation provides in part that any vehicle which is exempted by the ARB pursuant to section 39177 of the Pure Air Act may also be exempt from the installation requirements of section 39177.1, the NOx legislation. If the provisions of the preexisting law applied automatically to the NOx legislation, then the express statement in section 39177.2 incorporating section 39177 is superfluous.
It appears that the two installation programs, the NOx legislation and the preexisting sections of the Used Motor Vehicle Device Accreditation program (art. 5 of the Air Resources Act, as amended) coexist with one another but do not always interrelate without explicit incorporation. We itemize the following breakdown of the statutes:
Pre-NOx Legislation
Code sections of NOx
article 5 Legislation
Power to set standards for § 39175, subds. (c) § 39107.6
devices and (e)
Requirement of installation § 39176 § 39177.1, subd. (a)
Installation schedules § 39176.1 § 39177.1, subd. (b)
Standards for devices § 39180 § 39177.3
Exemption from installment § 39176.1 § 39177.2
requirements
Discretion to delay the § 39176.1 Veh. Code,
program § 4602, subd. (b)
Conditions for accreditation § 39182 § 39177.4
of device
*813 While some of the article 5 statutes are general and appear to apply across the board (e.g., § 39175, which states the general powers of the board) other article 5 statutes and NOx sections are mutually exclusive in parts and redundant in others (e.g., §§ 39180 and 39177.3; §§ 39182 and 39177.4). In view of these inconsistencies and the immediate conflict between sections 39176.1 and 39177.1, subdivision (a), we cannot assume that the Legislature intended section 39176.1 to apply to the NOx legislation.
Vehicle Code Section 4602: The "Extraordinary and Compelling Reasons Only" Clause
Having concluded that the ARB has an area of discretion to delay the NOx program under Vehicle Code section 4602, subdivision (b), we must next determine whether the energy crisis constitutes an extraordinary and compelling reason, within the meaning of that section, to postpone the program. (6) Plaintiffs contend that when the Legislature authorized the ARB to delay the NOx device program "for extraordinary and compelling reasons only" under Vehicle Code section 4602, it intended to limit the exercise of the ARB's discretion to reasons which relate to the effective implementation of the installation program and to the clearly expressed purposes of the Air Resources Act. We agree with this contention.
First, a delay to accommodate the energy crisis conflicts with the express purposes of the Air Resources Act and the NOx legislation. Second, administrative agencies exceed the scope of their authority when they promulgate regulations which contravene the purposes and the effective implementation of the governing legislation. Finally, the extraordinary and compelling reasons clause would constitute an invalid delegation of powers if its scope were not limited to reasons relating to the purposes of the act. In view of these considerations, we conclude that the Legislature intended to limit the ARB's discretion under section 4602 and to reserve for itself the power to determine fundamental policy matters, particularly an issue as basic and formidable as the competing values of clean air and energy.
Purposes of the NOx Legislation. In determining the breadth of discretion conferred upon the ARB by section 4602, we analyze it in accordance with accepted principles of statutory construction. (7) The courts must give statutes a reasonable construction which conforms to the apparent purpose and intention of the lawmakers. (Anaheim Union Water Co. v. Franchise Tax Bd. (1972) 26 Cal. App.3d 95 [102 Cal. Rptr. 692].) It is *814 fundamental in statutory construction that courts should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Cal. Toll Bridge Authority v. Kuchel (1952) 40 Cal.2d 43, 53 [251 P.2d 4]; Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 802 [151 P.2d 505, 157 A.L.R. 324].) Moreover, they should construe every statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness. Under these principles of construction, we must determine the breadth of discretion conferred upon the ARB under section 4602, subdivision (b), in accordance with the purposes of the NOx legislation and with reference to the whole law of which it is part, the Air Resources Act as amended.
Speedy installation of NOx devices on California motor vehicles is the apparent goal of the NOx legislation. Health and Safety Code section 39177.1, subdivision (b) (3), clearly manifests the Legislature's intention to require statewide installation on all 1966-1970 model year vehicles under 6,001 pounds by 1973. Moreover, in adopting the NOx legislation, the Legislature declared that "this act is an urgency statute necessary for the immediate preservation of the public peace, health or safety ... and shall go into immediate effect" and that the installation of devices on most passenger vehicles should take place "within the shortest time possible." (Stats. 1971, ch. 1507, § 8, p. 2981.)
Preexisting sections of the Air Resources Act reinforce this sense of urgency and necessity for pollution control. In Health and Safety Code section 39010, the Legislature expressed its finding that the people of California have a primary interest in the quality of their physical environment and that atmospheric pollution has created a situation which is detrimental to the health, safety, welfare, and sense of well-being of the people of California. Again, in Health and Safety Code section 39081, subdivision (b), the Legislature declared its finding that the control and elimination of vehicular pollutants is of prime importance for the protection and preservation of the public health and well-being. Subdivision (d) of the same section expresses the Legislature's intent to achieve an atmosphere with no significant, detectable adverse effect from motor vehicle air pollution on health, welfare, and the quality of life and property by 1975.
Aside from the purpose to obtain speedy installation of NOx control devices, the Legislature was manifestly concerned with both the effectiveness of the devices and with the effective implementation of the installation program. Health and Safety Code section 39107.6 provides that the ARB should establish standards for exhaust emission devices which are *815 necessary and technologically feasible to carry out the purposes of the Air Resources Act and that the primary consideration should be "the greatest possible reduction of oxides of nitrogen." Once standards are set and the devices have been accredited, the NOx legislation provides for vehicle inspections, certificates of compliance, and any other authorized means of enforcement that the ARB, the Department of Motor Vehicles, and the Highway Patrol find practicable. (Health & Saf. Code, § 39177.1, subd.(b).)
(8) From the foregoing, it appears that three primary goals of the NOx legislation are speedy installation of devices, substantial reduction of NOx pollution, and the effective enforcement of emission control requirements. Concern about gasoline consumption is not mentioned in the legislation and bears no relationship to these goals. As the ARB has recognized, the Legislature enacted the NOx program with the knowledge that pollution control devices consume gasoline.[5] Moreover, the ARB was created not to coordinate a program for the conservation of energy but to "provide a single state agency for the administration, research, establishment of standards, and the coordination of air conservation activities carried on within the state." (Health & Saf. Code, § 39013.) Therefore, we conclude that the ARB's action violates the NOx legislation's primary goal of speedy and effective purification of the atmosphere.
Scope of ARB's Authority. (9) An administrative agency cannot promulgate regulations which conflict with the purpose of the governing legislation. Under Health and Safety Code section 39175, the ARB must adopt rules and regulations in accordance with the provisions of the Administrative Procedure Act of the Government Code. Government Code section 11374 provides: "Whenever by express or implied terms of any statute a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute." (See also Desert Environment Conservation Assn. v. Public Utilities Com. (1973) 8 Cal.3d 739, 742-743 [106 Cal. Rptr. 31, 505 P.2d *816 223]; Rosas v. Montgomery (1970) 10 Cal. App.3d 77, 92 [88 Cal. Rptr. 907, 43 A.L.R.3d 537]; Imperial Termite Control, Inc. v. Structural Pest Control Bd. (1969) 275 Cal. App.2d 685, 689 [80 Cal. Rptr. 156].)
In view of section 11374, we cannot interpret the extraordinary and compelling reasons clause to empower the ARB to postpone the NOx program. The Legislature conferred upon the ARB authority to implement a program for the speedy and effective eradication of NOx pollution. In accordance with this goal, the ARB had authority to accredit NOx control devices, to establish schedules for the installation of such devices, and to coordinate enforcement activities with the Department of Motor Vehicles and the Highway Patrol. Section 11374 requires the ARB to perform these tasks through regulations which do not conflict with the statute and which are reasonably necessary to effectuate the purpose of the legislation. By the same token, section 11374 prohibits the ARB from exercising its discretion under the compelling and extraordinary reasons clause when the delay is not necessary to facilitate the purposes of the NOx legislation. (10) Since the ARB's most recent postponement of the urgent NOx program does not effectuate and is not consistent with the goals of speedy installation of accredited devices, substantial reduction of NOx emissions, and effective enforcement of emission control requirements, the ARB's decision to delay the program exceeded the scope of its authority under section 11374.[6]
Delegation of Powers. (11) If Government Code section 11374 or legislative intent does not confine the scope of Vehicle Code section 4602 to extraordinary and compelling reasons relating to the purposes and goals of the Air Resources Act, then section 4602 would constitute an unconstitutional delegation of powers. (See Imperial Termite Control, Inc. v. Structural Pest Control Bd. (1969) supra, 275 Cal. App.2d 685, 689.) (12) An unconstitutional delegation of power occurs when the Legislature confers upon an administrative agency the unrestricted authority to make fundamental policy determinations. (Kugler v. Yocum (1968) 69 *817 Cal.2d 371 [71 Cal. Rptr. 687, 445 P.2d 303]; Knudsen Creamery Co. v. Brock (1951) 37 Cal.2d 485, 493 [234 P.2d 26]; Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control (1966) 65 Cal.2d 349, 369 [55 Cal. Rptr. 23, 420 P.2d 735].) To avoid such delegation, the Legislature must provide an adequate yardstick for the guidance of the administrative body empowered to execute the law. (Am. Distilling Co. v. St. Bd. of Equalization (1942) 55 Cal. App.2d 799, 805 [131 P.2d 609]; Harris v. Alcoholic Bev. etc. Appeals Bd. (1964) 228 Cal. App.2d 1, 6 [39 Cal. Rptr. 192]; In re Porterfield (1946) 28 Cal.2d 91, 111 [168 P.2d 706, 167 A.L.R. 675].) Underlying these rules is the belief that the Legislature as the most representative organ of government should settle insofar as possible controverted issues of policy and that it must determine crucial issues whenever it has the time, information and competence to deal with them. (Jaffe, Judicial Control of Administrative Action (1965) pp. 41, 85.) The extraordinary and compelling reasons clause violates these principles unless it is limited to reasons which relate to the purposes and goals of the Air Resources Act.
As the present case illustrates, the respondent interprets Vehicle Code section 4602 in a manner which permits it to make legislative decisions. When the Legislature enacted the Air Resources Act and the NOx legislation, it concluded as a matter of fundamental policy that urgent action against automobile pollution was essential for the health of California's residents. In effect, it made clean air a higher priority than the concern for fuel consumption, the problem of rising costs in transportation, or the economics of the automobile industry.[7] After making this policy determination, the Legislature directed the ARB to establish a program which would accomplish the goal of pollution control. In response, the ARB determined that urgent action against the energy crisis was essential for the economic well-being of the state. In effect, its action to delay the NOx program for one year inverted the priorities by making energy consumption loftier in significance than concern for clean air. In other words, when the ARB postponed the NOx legislation, it made the same kind of fundamental though contrary policy determination the Legislature had made when it enacted the program in the first instance.
Respondent fails to explain why the ARB made this decision instead *818 of the Legislature. During the 1973 Regular Session the Legislature considered and failed to enact at least five proposals to delay the NOx program. (Sen.Bill No. 824, Apr. 23, 1973; Sen.Bill No. 825, Apr. 23, 1973; Assem.Bill No. 1964, Apr. 30, 1973; Sen. Concurrent Res. No. 52, May 16, 1973; Sen.Bill No. 1424, June 19, 1973.) As these bills suggest, the Legislature has the time, information, and competence to consider the issue of postponement; there is no valid justification for the ARB to act in the Legislature's stead.[8]
The extraordinary and compelling reasons clause as interpreted by the state cannot qualify as a sufficient legislative standard for administrative guidance. Although the breadth of the standard may vary with the subject matter of the legislation, it must not enable an administrative agency to exercise greater discretion than that which is necessary for the fulfillment of the Legislature's purposes. (Caminetti v. Pacific Mut. Life Ins. Co. (1943) 22 Cal.2d 344, 364 [139 P.2d 908]; In re Porterfield (1946) supra, 28 Cal.2d 91, 110-111; 2 Cal.Jur.3d, Administrative Law, § 63, p. 285.) The ARB has power to delay the NOx program for any compelling reason arising out of human experience in order to set up and enforce an effective and speedy program for the eradication of harmful automobile emissions. With the primary goals of the NOx legislation as its guide, the ARB could perhaps delay the program under Vehicle Code section 4602 when, for example, devices cannot be installed because of a shortage of materials or mechanics, when significant problems arise in the administration and enforcement of the registration, certificate, and vehicle check requirements, or when the devices fail to control emissions effectively. Since the purposes of speedy installation, substantial reduction of NOx, and effective enforcement provide the ARB with enough flexibility to set up, administer, and even to reasonably delay the program in the interest of clean air and effective pollution control, the broad and virtually unlimited interpretation of Vehicle Code section 4602 for which the state contends is unnecessary and is violative of the separation of powers.
Since we conclude that Government Code section 11374 limits the extraordinary and compelling reasons clause, and that the Legislature intended the ARB to predicate the exercise of its discretion under this clause *819 on reasons relating to the three primary goals of the NOx legislation, no problem arises under the separation of powers clause (Cal. Const., art. III, § 3.) (13) Each time the ARB elects to defer the NOx program, it must justify the action in terms which relate to speedy installation, substantial pollution reduction, or effective enforcement. This interpretation of Vehicle Code section 4602 enables the ARB to exercise enough discretion to carry out the broad purposes of the Air Resources Act, and still reserves to the Legislature as the most representative organ of government the right to make those crucial policy determinations for which it has competence, information, and time. (Davis, Administrative Law (3d ed. 1972) pp. 92-93.)
Because we interpret the scope of the extraordinary and compelling reasons clause under Vehicle Code section 4602 in light of Government Code section 11374, and because a narrow interpretation of the clause avoids constitutional problems under the separation of powers clause, the ARB must justify delays under section 4602 by reference to the three primary goals of the NOx legislation and the Air Resources Act. (14) Since the concern over the energy crisis does not relate to these goals, we conclude that the ARB had no power under section 4602 to postpone the program.[9]
Let a peremptory writ of mandate issue directing the respondent to vacate ARB Resolution No. 73-27G and Emergency Regulation amending *820 California Administrative Code, title 13, section 2008, subdivisions (a), (b), and (d) filed December 28, 1973, and to implement and enforce the NOx installation program in the manner set forth in the NOx legislation.
Wright, C.J., McComb, J., Tobriner, J., and Burke, J., concurred.
NOTES
[1] Since this three-month period has now expired, the question of the validity of the ARB's action in this limited respect is moot.
[2] The portion of the geographical schedule which pertained to the three major air basins remained unchanged.
[3] Respondent raised an objection to the standing of the two out-of-state corporate petitioners. We need not reach the issue since there is no question of the standing of the other petitioners.
[4] The ARB argues that it has discretion to adjust the geographical schedule under Health and Safety Code section 39176.1. Under this provision, the board is authorized to establish a schedule of installation to be not less than one year whenever it requires the installation of motor vehicle pollution control devices pursuant to section 39176. Section 39176.1 empowers the ARB to designate geographical areas in which resident owners of vehicles shall be exempt from the installation requirement. In addition, section 39176.1 entitles the board to consider "all relevant factors" in establishing installation schedules.
It is not clear whether section 39176.1 applies to the NOx legislation, although both are found in article 5 of the Air Resources Act, as amended. (Health & Saf. Code, §§ 39107.6, 39177.1-39177.4, and Veh. Code, § 4602.) One of the enforcement provisions of Health and Safety Code section 39177.1, the central code section in the NOx legislation, provides that "certificates of compliance shall be required upon initial registration, and upon transfer of ownership and registration pursuant to Section 4000.1 of the Vehicle Code." Section 4000.1 states that the Department of Motor Vehicles shall require, pursuant to regulation of the ARB "adopted pursuant to Section 39176.1 of the Health and Safety Code," a certificate of compliance upon initial registration and upon transfer of ownership. Hence it may be contended that the geographical schedule which implements the change of ownership requirement was adopted by the ARB pursuant to section 39176.1.
Nevertheless, several arguments support the conclusion that section 39176.1 does not apply to the NOx legislation and, therefore, does not provide authority for the exercise of discretion in this case. The geographical schedule for the change of ownership installation program covers a time span which is less than one year. Consequently, it does not comply with the requirement of section 39176.1 to adopt installation schedules "to be not less than one year."
The NOx legislation seems to duplicate authority granted in sections 39176 and 39176.1 which were enacted prior to the NOx legislation. Section 39176 requires the installation of devices upon ARB accreditation, while section 39176.1 authorizes the ARB to set up installation schedules to implement the section 39176 requirement.
[5] In a staff report dated April 18, 1973, for example, the ARB states that in accrediting NOx devices, criteria imposed upon the board include such factors as safety, increase in other emissions, adverse effects on vehicle performance, durability, marketing capability, maintenance requirements, and financial and public interest factors. It then notes that "increased fuel consumption is not included in the category of adverse effects. The original law assumed [the NOx device] would be used with its accompanying fuel penalty."
[6] Of some analogy in this connection are the several "impoundment" cases recently decided in federal courts. In varying statutory contexts the courts held the executive branch of government cannot whimsically, or even for what it deems sufficient cause, refuse to execute provisions of a congressional act. See, e.g., Community Action Prog. Exec. Dir. Ass'n. of N.J., Inc. v. Ash (D.N.J. 1973) 365 F. Supp. 1355; Commonwealth of Pennsylvania v. Lynn (D.D.C. 1973) 362 F. Supp. 1363; National Coun. of Com. Mental H. Ctrs., Inc. v. Weinberger (D.D.C. 1973) 361 F. Supp. 897; Local 2677, American Fed. of Gov. Emp. v. Phillips (D.D.C. 1973) 358 F. Supp. 60; Berends v. Butz (D.Minn. 1973) 357 F. Supp. 143, 156.
[7] The fundamental nature of the Legislature's concern for environmental protection is emphasized by Public Resources Code section 21000, subdivision (g), which states: "It is the intent of the Legislature that all agencies of the state government which regulate activities of private individuals, corporations, and public agencies which are found to affect the quality of the environment, shall regulate such activities so that the major consideration is given to preventing environmental damage." (See also Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247 [104 Cal. Rptr. 761, 502 P.2d 1049].)
[8] In the State of Maryland a special session of the Legislature was called to provide for emergency powers in connection with the energy crisis. The Legislature thereupon authorized the Governor to proclaim a state of emergency under which he could direct the "suspension and modification of existing standards and requirements affecting or affected by the use of energy resources, including those relating to air quality control...." (State Government Administration (May 1974) p. 13.)
[9] Respondent also contends that Health and Safety Code section 39176.1 empowers the ARB to delay the NOx program. That section provides in part: "In establishing installation schedules and areas exempted from installation, the board shall consider all relevant factors, including the burden of enforcement on the Department of the California Highway Patrol and the Department of Motor Vehicles, the need for rapid installation of the devices in order to preserve and protect the public health, and the existing ambient air quality in each area." According to the state, "all relevant factors" empowers the ARB to postpone the NOx program because of the energy crisis.
Even if this code section applies to the NOx legislation (see fn. 4, ante) it does not authorize the ARB to delay the installation programs in this instance. We interpret the phrase "all relevant factors" to mean those circumstances which relate to the purposes and goals of the NOx legislation. The same considerations under Government Code section 11374 and the separation of powers clause that applied to the extraordinary and compelling reasons clause of Vehicle Code section 4602 apply to the "all relevant factors" clause of section 39176.1. In addition, section 39176.1 states that the factors must be "relevant," and provides specific examples all of which relate to the primary goals of speedy installation, effective reduction of pollution, and enforcement. Since, as a matter of construction, "particular expressions qualify those which are general" (Civ. Code, § 3534), we interpret "relevant factors" in light of the specific examples and conclude that this phrase must relate to the purposes of the NOx legislation. Under this interpretation, section 39176.1 would not permit the ARB to justify its postponement because of the energy crisis.
| {
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United States Court of Appeals
for the Federal Circuit
__________________________
(Opposition No. 91170112)
COACH SERVICES, INC.,
Appellant,
v.
TRIUMPH LEARNING LLC,
Appellee.
__________________________
2011-1129
__________________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board.
_________________________
Decided: February 21, 2012
_________________________
NORMAN H. ZIVIN, Cooper & Dunham, LLP, of New
York, New York, argued for appellant. With him on the
brief was TONIA A. SAYOUR.
R. DAVID HOSP, Goodwin Procter, LLP, of Boston,
Massachusetts, argued for appellee. With him on the
brief was ANTHONY H. CATALDO. Of counsel was JOHN T.
BENNETT.
__________________________
Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.
COACH SERVICES v. TRIUMPH LEARNING 2
O’MALLEY, Circuit Judge.
Coach Services, Inc. (“CSI”) appeals from the final de-
cision of the Trademark Trial and Appeal Board (“the
Board”) dismissing its opposition to Triumph Learning,
LLC’s (“Triumph”) use-based applications to register the
mark COACH for educational materials used to prepare
students for standardized tests. The Board found that:
(1) there was no likelihood of confusion between the
parties’ COACH marks; (2) CSI failed to prove likelihood
of dilution; and (3) although Triumph’s marks are merely
descriptive, they have acquired secondary meaning, and
thus are entitled to registration. Coach Services, Inc. v.
Triumph Learning LLC, 96 U.S.P.Q.2d 1600 (T.T.A.B.
Sept. 17, 2010) (“Board Decision”). For the reasons dis-
cussed below, we find no error in the Board’s decisions
regarding likelihood of confusion and dilution, and thus
affirm as to those grounds. With respect to the Board’s
acquired distinctiveness analysis, however, we find that
certain evidentiary errors require us to vacate and re-
mand solely with respect to the Board’s determination of
Triumph’s “substantially exclusive and continuous use” of
its marks. Accordingly, we affirm-in-part, vacate-in-part,
and remand this matter for further proceedings.
BACKGROUND
A. Triumph’s Use of the COACH Mark
Triumph publishes books and software used to assist
teachers and students in preparing for standardized tests.
Triumph claims that it has used the COACH mark in
connection with its products since at least 1986. Accord-
ing to Triumph: (1) the “market for test preparation
materials for state-sponsored standardized tests is highly
specific and targeted”; and (2) much of the marketing
takes place through face to face contact with sales repre-
sentatives or in the form of direct mailings to previously
3 COACH SERVICES v. TRIUMPH LEARNING
identified educational department heads. Appellee’s Br.
6.
Triumph explains that, when Congress passed the No
Child Left Behind Act in 2001, which mandated that all
states administer standardized tests to monitor academic
advancement, Triumph made additional investments in
its marketing. It began focusing on the style of its brand
and developed a mascot – a cartoon coach – and a slogan:
“America’s best for student success.” Triumph invested
significantly in its marketing efforts, and, according to
Triumph, it has had substantial commercial success
selling products under its COACH mark.
In December 2004, Triumph filed use-based applica-
tions for three marks: (1) the COACH word mark (Serial
No. 78/535,642); (2) a stylized COACH mark (Serial No.
78/536,065); and (3) a COACH mark and design (Serial
No. 78/536,143) (referred to collectively as “Triumph’s
COACH marks”). The COACH mark with a design ap-
pears as follows:
Each of the applications is for the following goods in
International Classes 9 and 16:
Computer software for use in child and adult edu-
cation, namely, software to assist teachers and
students at all levels in mastering standards-
based curricula and in preparing for standardized
COACH SERVICES v. TRIUMPH LEARNING 4
exams; prerecorded audio and video tapes in the
field of child and adult education, featuring mate-
rials to assist teachers and students at all levels
in mastering standards-based curricula and in
preparing for standardized exams, in Class 9; and
Printed materials in the field of child and adult
education, namely, textbooks, workbooks, teacher
guides and manuals, posters and flashcards, all
featuring materials to assist teachers and stu-
dents at all levels in mastering standards-based
curricula and in preparing for standardized ex-
ams, in Class 16.
Triumph’s COACH marks were published for opposition
on September 20, 2005.
B. CSI’s COACH Marks
CSI advertises and sells a wide variety of “accessible
luxury” products, including handbags, luggage, clothing,
watches, eye glasses, and wallets. It has been using the
COACH mark in connection with its products since at
least December 28, 1961. 1 CSI owns sixteen incontestable
trademark registrations for the COACH mark, all but one
of which issued before Triumph’s applications were filed
in December 2004.
CSI sells its COACH products in its own 400 retail
stores, in department stores, and over the Internet
through its website. It also promotes its goods by cata-
logs. CSI advertises and markets its COACH line of
products throughout the United States using “magazine
and newspaper ads, billboards and bus and phone kiosks.”
Appellant’s Br. 5. For example, CSI’s COACH brand
products have been advertised in national fashion publi-
1 CSI claims that its predecessor first began using
the COACH mark in 1957.
5 COACH SERVICES v. TRIUMPH LEARNING
cations, including Elle, Vogue, Mademoiselle, and Vanity
Fair.
Although CSI’s briefing to this court includes adver-
tising and sales figures from 2000-2008, including a
representation that its sales exceeded $10 billion over
that time frame, as discussed below, this evidence was not
properly submitted to the Board and thus was not consid-
ered. In fact, the Board found that CSI introduced evi-
dence of its advertising and sales only for 2008.
Specifically, CSI introduced the testimony deposition of
Carole P. Sadler, the former Vice President, General
Counsel, and Secretary of CSI, who testified that, in 2008:
(1) CSI’s annual sales were roughly $3.5 billion; and
(2) CSI spent about “30-60 million a year” on advertising.
Joint Appendix (“J.A.”) 3659-60.
To further support the popularity and commercial
success of its COACH mark, CSI points to: (1) its joint
marketing efforts with other popular brands, including
LEXUS and CANON; (2) unsolicited media attention from
the fashion press; (3) an internal market study conducted
in June and July 2007 of persons between the ages of 18-
24, which showed that the COACH brand had 96% aided
awareness; and (4) the fact that CSI has taken steps to
enforce its trademark rights against past infringers.
It is undisputed that CSI is not in the education or
test-preparation industry, does not consider Triumph a
competitor, and did not present any evidence of any
actual confusion stemming from Triumph’s use of the
Coach mark in conjunction with its educational materials.
C. TTAB Opposition Proceedings
On March 17, 2006, CSI filed a Notice of Opposition
opposing registration of all three of Triumph’s COACH
marks on grounds of likelihood of confusion under 15
COACH SERVICES v. TRIUMPH LEARNING 6
U.S.C. § 1052(d) and dilution under 15 U.S.C. § 1125(c).
On October 5, 2006, CSI amended its Notice to add a
claim that COACH is merely descriptive when used on
goods in the educational and test preparation industries,
such that the mark is not registrable to Triumph pursu-
ant to 15 U.S.C. § 1052(e).
On September 17, 2010, the Board issued a judgment
dismissing CSI’s opposition. Specifically, the Board found
that there was: (1) no likelihood of confusion between the
parties’ marks; and (2) no likelihood of dilution of CSI’s
COACH mark for lifestyle goods by Triumph’s COACH
marks for educational materials. While the Board found
that CSI’s COACH mark was famous for likelihood of
confusion purposes, it concluded that CSI failed to provide
sufficient evidence of fame to support its dilution claim
under the Trademark Dilution Revision Act of 2006
(“TDRA”), 15 U.S.C. § 1125(c). Finally, the Board held
that, although Triumph’s COACH marks were merely
descriptive, they had acquired secondary meaning and
thus were entitled to registration.
CSI timely appealed to this court. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(4)(B).
STANDARD OF REVIEW
We review the Board’s legal conclusions de novo and
its factual findings for substantial evidence. In re Pacer
Tech., 338 F.3d 1348, 1349 (Fed. Cir. 2003). Substantial
evidence is “‘more than a mere scintilla’ and ‘such rele-
vant evidence as a reasonable mind would accept as
adequate’ to support a conclusion.” Id. (quoting Consol.
Edison v. Nat’l Labor Relations Bd., 305 U.S. 197, 229
(1938)).
DISCUSSION
CSI’s primary arguments on appeal fall into three
categories. It argues that the Board erred when it:
(1) improperly balanced the factors set forth in In re E.I.
DuPont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A.
1973), to find no likelihood of confusion; (2) ignored sub-
stantial evidence showing that CSI’s COACH mark was
famous for dilution purposes, including corporate annual
reports that CSI had attempted to introduce via a notice
of reliance; and (3) found that Triumph’s descriptive
COACH marks have acquired distinctiveness.
In response, Triumph argues that the Board correctly
found: (1) no likelihood of confusion “in light of the vast
differences in the parties’ respective goods, the channels
of trade through which those goods are sold, and the
vastly different commercial impressions made by the
marks on consumers”; (2) no likelihood of dilution because
CSI did not meet the stringent standards for fame under
the TDRA and because “its mark has not become the
principal meaning of the word ‘coach’”; and (3) that Tri-
umph’s marks have attained secondary meaning. Appel-
lee’s Br. 12-13.
For the reasons set forth below, we find Triumph’s ar-
guments regarding likelihood of confusion and likelihood
of dilution well-taken. Because we find that the Board
made evidentiary errors with respect to its acquired
distinctiveness analysis, we vacate that portion of the
Board’s decision and remand for further proceedings on
that issue alone.
A. Evidentiary Ruling Regarding CSI’s
Notice of Reliance
On appeal, CSI takes issue with the Board’s decision
to exclude the corporate annual reports it attempted to
admit through a notice of reliance. According to CSI, the
COACH SERVICES v. TRIUMPH LEARNING 8
Board should have considered its 2000-2008 annual
reports as evidence of CSI’s annual sales figures and the
amount it expended in advertising, design, and promotion
of its COACH products. In response, Triumph argues
that the Board properly struck the documents from the
record because they were not submitted in accordance
with the Board’s rules and were not otherwise authenti-
cated. We agree with Triumph.
This court reviews evidentiary rulings for abuse of
discretion. Crash Dummy Movie, LLC v. Mattel, Inc., 601
F.3d 1387, 1390 (Fed. Cir. 2010) (citing Chen v. Bouchard,
347 F.3d 1299, 1307 (Fed. Cir. 2003)). We will reverse
only if the Board’s evidentiary ruling was: (1) “clearly
unreasonable, arbitrary, or fanciful”; (2) “based on an
erroneous conclusion[] of law”; (3) premised on “clearly
erroneous findings of fact”; or (4) the record “contains no
evidence on which the Board could rationally base its
decision.” Id. at 1390-91.
The Trademark Rules of Practice, which govern inter
partes trademark proceedings before the Board, provide,
in part, that “printed publications” which are “available to
the general public in libraries or of general circulation
among members of the public or that segment of the
public which is relevant under an issue in a proceeding . .
. may be introduced in evidence by filing a notice of reli-
ance on the material being offered.” 37 C.F.R. § 2.122(e).
Historically, corporate annual reports were not considered
printed publications available to the general public and
thus were not admissible via a notice of reliance without
any authentication. See Jeanne-Marc, Inc. v. Cluett,
Peabody & Co., Inc., 221 U.S.P.Q. 58, 59, n.4 (T.T.A.B.
1984) (“It is well settled that annual reports do not fall
within the category of printed publications as contem-
plated” under the Trademark Rules.); see also Midwest
Plastic Fabricators Inc. v. Underwriters Labs. Inc., 12
9 COACH SERVICES v. TRIUMPH LEARNING
U.S.P.Q.2d 1267, 1270 n.5 (T.T.A.B. 1989) (“[P]rinted
material in the nature of annual reports is not considered
printed publications available to the general public such
that it may be relied on pursuant to Rule 2.122(e).
Rather, such material must be introduced in connection
with the deposition testimony of a competent witness.”);
VTech Holdings Ltd. v. Varian Semiconductor Equip.
Assocs., Inc., Opp. No. 91156936, 2007 TTAB LEXIS 245,
at *11 (T.T.A.B. Sept. 21, 2007) (“Opposer’s corporate
annual reports, newsletters and other house publications
are not self-authenticating printed publications or official
records and may not be made of record by notice of reli-
ance. We sustain applicant’s objection to all such docu-
ments and shall give them no consideration.”) (internal
citations omitted).
In a 2010 decision, however, the Board expanded the
types of documents that can be introduced by way of a
notice of reliance. Safer Inc. v. OMS Investments Inc., 94
U.S.P.Q.2d 1031, 1039 (T.T.A.B. 2010). In Safer, the
Board held that:
if a document obtained from the Internet identifies
its date of publication or date that it was accessed
and printed, and its source (e.g., the URL), it may
be admitted into evidence pursuant to a notice of
reliance in the same manner as a printed publica-
tion in general circulation in accordance with
Trademark Rule 2.122(e). . . The Board will hence-
forth deem a document obtained from the Internet
displaying a date and its source as presumptively
true and genuine. Of course, the document must
be publicly available. The date and source infor-
mation on the face of Internet documents allow
the nonoffering party the opportunity to verify the
documents.
COACH SERVICES v. TRIUMPH LEARNING 10
Id. (emphasis in original). In a footnote, the Board recog-
nized that documents could be treated differently depend-
ing on their format. For example, “a corporate annual
report available only in paper form may not be admissible
through a notice of reliance because it is not a document
in general circulation,” while a report “in digital form
publically available over the Internet would be admissible
through a notice of reliance because its publication on the
Internet places it in general circulation.” Id. at 1039 n.18.
Here, CSI’s First Notice of Reliance, which was dated
October 20, 2008, listed its annual reports from 2002 to
2008. 2 Triumph objected on grounds that “annual reports
may not be introduced through a notice of reliance, but
must be introduced and authenticated by competent
testimony.” Board Decision, 96 U.S.P.Q.2d at 1603. The
Board, relying on Trademark Rule 2.122(e) and the re-
lated cases cited above, indicated that “corporate annual
reports are not considered to be printed publications
available to the general public.” Id. In a footnote, the
Board acknowledged the recent Safer decision and found
that, “[b]ecause the annual reports were not printed from
the Internet, they may not be admitted into evidence
pursuant to a notice of reliance.” Id. at 1603 n.2 (citing
Safer, 94 U.S.P.Q.2d at 1039 n.18). The Board further
noted that CSI did not have any witness testify to the
authenticity of the reports. Accordingly, the Board sus-
tained Triumph’s objection and gave CSI’s annual reports
no consideration.
2 Although its Notice of Reliance listed its annual
reports for 2002-2008, in its briefing, CSI argues that the
Board should have considered its annual reports from
2001 to 2008. This discrepancy is irrelevant, however,
given the Board’s decision to exclude all of the reports on
grounds that they were improperly introduced.
11 COACH SERVICES v. TRIUMPH LEARNING
On appeal, CSI argues that the Board should have
considered the annual reports in light of the Safer deci-
sion. According to CSI, because its annual reports from
2001 to 2008 were available online, the Board should have
accepted the printed versions of the reports. In the alter-
native, CSI argues that, if the court agrees with the Board
that the paper versions of the annual reports are not
admissible via a notice of reliance, but that “identical
copies printed off the Internet are admissible, Coach
submitted the testimony of its Vice President and General
Counsel that Coach’s sales and advertising information is
reported publicly because it is a public company.” Appel-
lant’s Br. 29-30.
The record reveals that CSI’s former Vice President
and General Counsel – Carole Sadler – testified as fol-
lows:
Q. About how much does Coach spend on adver-
tising every year?
A. Currently we spend about 30 to $60 million a
year. If you include design and promotional
expenditures with advertising, it is closer to
125 million.
Q. Annually?
A. Annually, yes.
Q. And is that information available publicly?
A. Yes, it is in our annual report.
Q. What are Coach’s sales approximately today?
A. About three-and-a-half billion dollars.
Q. Is that information available publicly?
A. Yes.
Q. Is Coach a public company?
COACH SERVICES v. TRIUMPH LEARNING 12
A. Yes.
Q. So it reports that information publicly?
A. Yes.
J.A. 3659-60. According to CSI, this testimony corrobo-
rates that the advertising spending and sales figures from
2000 to 2008 are publicly available through the annual
reports CSI proffered. It is undisputed, however, that Ms.
Sadler was not shown the annual reports during her
deposition and did not authenticate the documents at
issue.
Despite CSI’s contentions to the contrary, we find that
the Board’s decision to exclude the annual reports is
consistent with both the Trademark Rules and the
Board’s related case law. It is significant, moreover, that
CSI submitted its Notice of Reliance in October 2008, and
the Board did not decide Safer until 2010. At the time the
Notice of Reliance was submitted, therefore, the Board’s
rules and existing case law were clear that corporate
annual reports were not admissible via a notice of reli-
ance. Even under the Board’s Safer decision, moreover,
CSI’s printed versions of its annual reports could not be
admitted into evidence pursuant to a notice of reliance
because they lacked identifying information such as the
online source and date accessed. Indeed, Safer specifi-
cally contemplated this situation where a corporate
annual report is “inadmissible in paper form by way of a
notice of reliance because it is not a document in general
circulation whereas the same annual report in digital
form, publicly available over the internet, would be ad-
missible through a notice of reliance because its publica-
tion on the internet places it in general circulation.” Gary
D. Krugman, Trademark Trial & App. Board Prac. &
Proc. § 3.138 (2011).
13 COACH SERVICES v. TRIUMPH LEARNING
With respect to Ms. Sadler’s testimony, the Board
found that her statements were limited to 2008 because
she specified that her sales and advertising estimates
were “current” estimates, and her deposition was taken in
2008. And, as Triumph notes and CSI concedes, the sales
figure Ms. Sadler quoted during her testimony was for
worldwide sales, not sales within the United States, and
there was no indication as to whether the advertising
figures quoted were limited to the United States. Simply
put, there was no testimony authenticating the annual
reports or independently establishing the information
contained therein.
Although the Board’s requirements for admission of
evidence via a notice of reliance are specific, and do not
mirror the Federal Rules of Evidence, they can be readily
learned and easily satisfied. Because CSI offered only
paper versions of its annual reports, which are not self-
authenticating, we find that the Board did not abuse its
discretion when it excluded those reports. Accordingly,
we affirm the Board’s evidentiary ruling.
B. Likelihood of Confusion
Next, CSI argues that the Board erred in finding no
likelihood of confusion under the factors articulated in
DuPont. Likelihood of confusion is a legal determination
based on underlying facts. Cunningham v. Laser Golf
Corp., 222 F.3d 943, 945 (Fed. Cir. 2000); see also M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1381
(Fed. Cir. 2006) (“Likelihood of confusion is a question of
law, based on findings of relevant underlying facts,
namely findings under the DuPont factors.”). Although
we review the Board’s findings as to the DuPont factors
for substantial evidence, we review its overall determina-
tion of likelihood of confusion without deference. In re
Chatam Int’l Inc., 380 F.3d 1340, 1342 (Fed. Cir. 2004)
COACH SERVICES v. TRIUMPH LEARNING 14
Under Section 2(d) of the Lanham Act, the Patent and
Trademark Office (“PTO”) may refuse to register a trade-
mark if it is so similar to a registered mark “as to be
likely, when used on or in connection with the goods of the
applicant, to cause confusion, or to cause mistake, or to
deceive.” 15 U.S.C. § 1052(d). Whether a likelihood of
confusion exists between an applied-for mark and a prior
mark is determined on a case-by-case basis applying the
thirteen non-exclusive factors set forth in DuPont. 3
3 The DuPont factors include:
(1) The similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connota-
tion and commercial impression. (2) The similar-
ity or dissimilarity and nature of the goods or
services as described in an application or registra-
tion or in connection with which a prior mark is in
use. (3) The similarity or dissimilarity of estab-
lished, likely-to-continue trade channels. (4) The
conditions under which and buyers to whom sales
are made, i.e., “impulse” vs. careful, sophisticated
purchasing. (5) The fame of the prior mark (sales,
advertising, length of use). (6) The number and
nature of similar marks in use on similar goods.
(7) The nature and extent of any actual confusion.
(8) The length of time during and conditions un-
der which there has been concurrent use without
evidence of actual confusion. (9) The variety of
goods on which a mark is or is not used (house
mark, “family” mark, product mark). (10) The
market interface between applicant and the owner
of a prior mark . . . . (11) The extent to which ap-
plicant has a right to exclude others from use of
its mark on its goods. (12) The extent of potential
confusion, i.e., whether de minimis or substantial.
(13) Any other established fact probative of the ef-
fect of use.
DuPont, 476 F.2d at 1361.
15 COACH SERVICES v. TRIUMPH LEARNING
Citigroup Inc. v. Capital City Bank Group, Inc., 637 F.3d
1344, 1349 (Fed. Cir. 2011) (citation omitted). “Not all of
the DuPont factors are relevant to every case, and only
factors of significance to the particular mark need be
considered.” In re Mighty Leaf Tea, 601 F.3d 1342, 1346
(Fed. Cir. 2010). For example, the Board can “focus . . . on
dispositive factors, such as similarity of the marks and
relatedness of the goods.” Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 1164 (Fed. Cir. 2002) (citation
omitted).
Here, the Board focused on the following DuPont fac-
tors: (1) the strength or fame of CSI’s COACH marks;
(2) the similarity of the goods; (3) the channels of trade;
(4) the classes of consumers; and (5) the similarity of the
marks in their entireties. The Board weighed each of
these factors and found that there was no likelihood of
confusion because the parties’ marks “have different
meanings and engender different commercial impres-
sions,” and the goods involved “are not similar or related
in any way.” Board Decision, 96 U.S.P.Q.2d at 1609.
CSI argues that the Board failed to give proper weight
to: (1) the fame of its COACH mark; (2) the identical
nature of the parties’ marks; and (3) the “overlap between
the parties’ goods and the overlap and lack of sophistica-
tion of the parties’ customers.” Appellant’s Br. 19. We
address each of the challenged determinations in turn and
find that they are supported by substantial evidence.
After careful review and balancing of the DuPont factors,
we conclude that the Board correctly found no likelihood
of confusion.
1. Strength or Fame of CSI’s Coach Mark
The fame of the registered mark plays a “dominant”
role in the DuPont analysis, as famous marks “enjoy a
wide latitude of legal protection.” Recot, Inc. v. M.C.
COACH SERVICES v. TRIUMPH LEARNING 16
Becton, 214 F.3d 1322, 1327 (Fed. Cir. 2000); see also
Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin Mai-
son Fondee En 1772, 396 F.3d 1369, 1374 (Fed. Cir. 2005)
(“[A] strong mark . . . casts a long shadow which competi-
tors must avoid”) (citation omitted)). A famous mark is
one that has “extensive public recognition and renown.”
Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d 1367, 1371
(Fed. Cir. 2002) (citation omitted).
Fame for purposes of likelihood of confusion is a mat-
ter of degree that “varies along a spectrum from very
strong to very weak.” Palm Bay, 396 F.3d at 1375 (quot-
ing In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed.
Cir. 2003)). Relevant factors include sales, advertising,
length of use of the mark, market share, brand aware-
ness, licensing activities, and variety of goods bearing the
mark. Recot, 214 F.3d at 1326; see also Bose, 293 F.3d at
1371 (“[O]ur cases teach that the fame of a mark may be
measured indirectly, among other things, by the volume
of sales and advertising expenditures of the goods travel-
ing under the mark, and by the length of time those
indicia of commercial awareness have been evident.”).
The party asserting that its mark is famous has the
burden to prove it. Leading Jewelers Guild, Inc. v. LJOW
Holdings, LLC, 82 U.S.P.Q.2d 1901, 1904 (T.T.A.B. 2007)
(“It is the duty of a party asserting that its mark is fa-
mous to clearly prove it.”).
It is well-established that fame is insufficient, stand-
ing alone, to establish likelihood of confusion. Univ. of
Notre Dame Du Lac .v J.C. Gourmet Food Imports Co.,
Inc., 703 F.2d 1372, 1374 (Fed. Cir. 1983) (“Likely . . . to
cause confusion means more than the likelihood that the
public will recall a famous mark on seeing the same mark
used by another.”) (internal quotations omitted). Al-
though fame cannot overwhelm the other DuPont factors,
we are mindful that it “deserves its full measure of weight
17 COACH SERVICES v. TRIUMPH LEARNING
in assessing likelihood of confusion.” Recot, 214 F.3d at
1328 (noting that “fame alone cannot overwhelm the other
DuPont factors as a matter of law”).
To show the strength and fame of its mark, CSI intro-
duced the following evidence before the Board:
• CSI began using the COACH mark at least as
early as December 28, 1961.
• There are approximately 400 COACH retail stores
throughout all 50 states.
• CSI’s COACH products are sold by approximately
1,000 third-party retailers throughout the US.
• In 2008, CSI’s annual sales were roughly $3.5 bil-
lion.
• In 2008, CSI spent “about $30-60 million a year”
on advertising.
• CSI has advertised in magazines such as Elle,
Vogue, Vanity Fair, and The New Yorker.
• CSI has advertised in newspapers in major metro-
politan areas.
• CSI’s COACH products have received unsolicited
publicity from newspapers and magazines discuss-
ing fashion trends.
• CSI has been the subject of articles that refer to
the renown of its products.
• CSI’s internal brand awareness study, which is-
sued in March 2008, showed a high level of
awareness of the COACH brand for women be-
tween the ages of 13-24.
• CSI’s COACH products are the subject of counter-
feiting.
COACH SERVICES v. TRIUMPH LEARNING 18
Based on this evidence, the Board found that CSI’s
COACH mark is famous for purposes of likelihood of
confusion. Substantial evidence supports this finding. As
discussed below, however, the Board found that the other
factors, on balance, dispel any likelihood of confusion
between the parties’ marks.
2. Similarity of the Marks
Under the next DuPont factor, the Board must con-
sider the “similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.” 476 F.2d at 1361. CSI argues
that the substantial similarity of the marks should have
weighed heavily in favor of likelihood of confusion. Tri-
umph responds that, although the marks for both compa-
nies contain the word “Coach,” “when viewed in their
commercial contexts, together with the relevant designs
and in connection with their respective goods, they convey
entirely different commercial impressions.” Appellee’s Br.
36-37.
It is well-established that it is improper to dissect a
mark, and that marks must be viewed in their entireties.
In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993)
(“The marks are considered in their entireties, words and
design.”); see also Sports Auth. Mich., Inc. v. PC Auth.,
Inc., 63 U.S.P.Q.2d 1782, 1792 (T.T.A.B. 2002) (same). In
some circumstances, however, “one feature of a mark may
be more significant than another, and it is not improper to
give more weight to this dominant feature in determining
the commercial impression created by the mark.” Lead-
ing Jewelers Guild, 82 U.S.P.Q.2d at 1905; see also In re
Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)
(“[T]here is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particu-
19 COACH SERVICES v. TRIUMPH LEARNING
lar feature of a mark, provided the ultimate conclusion
rests on consideration of the marks in their entireties.”).
The proper test is not a side-by-side comparison of the
marks, but instead “whether the marks are sufficiently
similar in terms of their commercial impression” such
that persons who encounter the marks would be likely to
assume a connection between the parties. Leading Jewel-
ers Guild, 82 U.S.P.Q.2d at 1905. In this fact-specific
inquiry, if the parties’ goods are closely related, a lesser
degree of similarity between the marks may be sufficient
to give rise to a likelihood of confusion. In re Inca Tex-
tiles, LLC, 344 Fed. Appx. 603, 606 (Fed. Cir. 2009) (citing
Century 21 Real Estate Corp. v. Century Life of Am., 970
F.2d 874, 877 (Fed. Cir. 1992)). Even where the marks at
issue are identical, or nearly identical, the Board has
found that differences in connotation can outweigh visual
and phonetic similarity. See Blue Man Prods. Inc. v.
Tarmann, 75 U.S.P.Q.2d 1811, 1820-21 (T.T.A.B. 2005)
(finding that BLUE MAN GROUP “has the connotation of
the appearance of the performers” and that applicant’s
BLUEMAN mark “has no such connotation for cigarettes
or tobacco. Thus, the marks differ in their connotations
and commercial impressions”); see also In re Sears, Roe-
buck & Co., 2 U.S.P.Q.2d 1312, 1314 (T.T.A.B. 1987)
(considering CROSSOVER for brassieres and
CROSSOVER for ladies’ sportswear and finding that,
“[a]s a result of their different meanings when applied to
the goods of applicant and registrant, the two marks
create different commercial impressions, notwithstanding
the fact that they are legally identical in sound and
appearance”).
Here, the Board found that, although the marks are
identical in terms of sight and sound, they differ as to
connotation and commercial impression. The Board
stated that, in assessing connotation and commercial
COACH SERVICES v. TRIUMPH LEARNING 20
impression, “we are compelled to consider the nature of
the respective goods and services.” Board Decision, 96
U.S.P.Q.2d at 1609 (citing TBC Corp. v. Holsa, Inc., 126
F.3d 1470 (Fed. Cir. 1997)). Applying this analysis, the
Board found that:
Opposer’s COACH mark, when applied to fashion
accessories is clearly either arbitrary or sugges-
tive of carriage or travel accommodations (e.g.,
stagecoach, train, motor coach, etc.) thereby en-
gendering the commercial impression of a travel-
ing bag (e.g., a coach or carriage bag). On the
other hand, applicant’s COACH marks call to
mind a tutor who prepares a student for an ex-
amination.
Id. Given the “completely different meanings and com-
mercial impressions engendered by the marks,” the Board
concluded that Triumph’s COACH marks are not similar
to CSI’s COACH mark. Id.
As noted, Triumph’s applications seek to register
COACH in standard character form, COACH in a stylized
font, and COACH with a mascot and the tagline “Amer-
ica’s Best for Student Success.” It is undisputed that the
word marks for both parties are identical in sound and
appearance: they both use the word “Coach.” This fact is
significant to the similarity inquiry. We, nevertheless,
agree with the Board that, despite their undisputed
similarity, the marks have different meanings and create
distinct commercial impressions. This is particularly true
given that the word “coach” is a common English word
that has many different definitions in different contexts.
Specifically, we find that substantial evidence sup-
ports the Board’s determination that Triumph’s COACH
mark, when applied to educational materials, brings to
mind someone who instructs students, while CSI’s
21 COACH SERVICES v. TRIUMPH LEARNING
COACH mark, when used in connection with luxury
leather goods, including handbags, suitcases, and other
travel items, brings to mind traveling by carriage. We
agree with the Board that these distinct commercial
impressions outweigh the similarities in sound and ap-
pearance, particularly since, as discussed below, the
parties’ goods are unrelated. See Blue Man Prods., 75
U.S.P.Q.2d at 1820-21 (“We consider these differences in
the connotations and the commercial impressions of the
marks to outweigh the visual and phonetic similarity.”).
Accordingly, this factor favors Triumph.
3. Similarity of the Goods
With respect to the DuPont factor assessing the simi-
larity of the goods, the Board found, and we agree, that
the parties’ goods are unrelated. This factor requires a
comparison between the goods or services described in the
application and those described in the registration. See
M2 Software, 450 F.3d at 1382 (noting that, when review-
ing the relatedness of the goods, this court considers “the
applicant’s goods as set forth in its application, and the
opposer’s goods as set forth in its registration”).
When analyzing the similarity of the goods, “it is not
necessary that the products of the parties be similar or
even competitive to support a finding of likelihood of
confusion.” 7-Eleven Inc. v. Wechsler, 83 U.S.P.Q.2d 1715,
1724 (T.T.A.B. 2007). Instead, likelihood of confusion can
be found “if the respective products are related in some
manner and/or if the circumstances surrounding their
marketing are such that they could give rise to the mis-
taken belief that they emanate from the same source.” Id.
When trademarks would appear on substantially identical
goods, “the degree of similarity necessary to support a
conclusion of likely confusion declines.” Citigroup Inc. v.
Capital City Bank Group, Inc., 637 F.3d 1344, 1355 (Fed.
COACH SERVICES v. TRIUMPH LEARNING 22
Cir. 2011) (citing Century 21 Real Estate, 970 F.2d at
877).
The Board found “clear and significant differences”
between the parties’ goods. Board Decision, 96
U.S.P.Q.2d at 1608. While Triumph’s applications iden-
tify computer software and printed materials for use in
preparing students for standardized exams, the various
products identified in CSI’s registrations include hand-
bags, fashion accessories, luggage, and clothing. The
Board further noted that, although CSI uses its mark on
many different types of goods, it does not use COACH on
educational products.
On appeal, CSI concedes that the parties’ products are
not the same, but contends that there is some overlap
between their goods because it “has used the mark in
connection with books and audio and videotapes and in
connection with tote bags, caps and shirts.” Appellant’s
Br. 49. This alleged overlap does not help CSI’s position,
however, particularly since there is no evidence in the
record regarding the sales or marketing of these items. 4
4 As Triumph correctly points out, CSI provided no
evidence as to the sales of these books, any marketing
efforts, when the books were last sold, or whether CSI
generated revenue from the books. For example, during
Ms. Sadler’s deposition, she testified that CSI has pub-
lished books about its history including a book called
“Portrait of a Leather Goods Factory.” J.A. 3647. On
cross-examination, however, Ms. Sadler could not provide
any information regarding the sales of this book or
whether it was even sold by CSI. J.A. 3675-76. With
respect to CSI’s “audio and video tapes,” the record re-
veals that these are materials it prepares and provides to
U.S. Customs to intercept counterfeit goods. There is no
evidence that CSI sells these tapes.
23 COACH SERVICES v. TRIUMPH LEARNING
Finally, although CSI argues that the parties’ prod-
ucts are related because Triumph uses its marks on
shirts, caps, and tote bags, the Board correctly noted that
Triumph’s applications do not seek to register its COACH
marks for those items, and likelihood of confusion must be
based on the goods identified in the application. Board
Decision, 96 U.S.P.Q.2d at 1608. And, there is no evi-
dence that Triumph sells these products, which, according
to Triumph, are worn by its sales agents to market Tri-
umph’s test preparation materials.
Based on the foregoing, substantial evidence supports
the Board’s conclusion that the parties’ goods are not
related.
4. Channels of Trade and Classes of Customers
Next, we consider the similarity or dissimilarity of the
trade channels in which the parties’ goods are sold and
the purchasers to whom the parties’ goods are marketed.
The Board correctly recognized that, because Triumph’s
description of goods is not limited to sales to educational
professionals, the goods are presumed to travel in all
normal channels and to all prospective purchasers for the
relevant goods. See Packard Press, Inc. v. Hewlett-
Packard Co., 227 F.3d 1352, 1360-61 (Fed. Cir. 2000)
(“When the registration does not contain limitations
describing a particular channel of trade or class of cus-
tomer, the goods or services are assumed to travel in all
normal channels of trade.”).
With respect to the trade channels, the Board noted
that CSI sells its products through its 400 retail stores
and through third-party retailers. It also advertises in
newspapers, fashion magazines, and catalogs that target
female consumers between the ages of 25-65 in all income
brackets. For its part, Triumph markets its products
COACH SERVICES v. TRIUMPH LEARNING 24
through catalogs, direct mail, and personal sales repre-
sentatives.
With respect to the classes of customers, CSI argues
that customers of both products are ordinary consumers,
including teachers, “who may buy the products at issue
without a great deal of thought.” Appellant’s Br. 48. The
Board found, however, that Triumph targets educational
professionals with responsibility for purchasing educa-
tional materials. The Board further found that, although
educational professionals “may include females between
the ages of 25-65,” the products are “not sold under cir-
cumstances likely to give rise to the mistaken belief that
the products emanate from the same source.” Board
Decision, 96 U.S.P.Q.2d at 1608. In fact, the Board found
that educational professionals are likely to exercise a high
level of care in making purchasing decisions, which would
minimize likelihood of confusion.
Under these circumstances, the Board did not err in
concluding that the goods are not related and the chan-
nels of trade are distinct. Although there could be some
overlap in the classes of purchasers for the parties’ prod-
ucts, we agree it is unlikely that, in the circumstances in
which the products are sold, customers would associate
CSI’s COACH brand products with educational materials
used to prepare students for standardized tests. And,
there is nothing in the record to suggest that a purchaser
of test preparation materials who also purchases a luxury
handbag would consider the goods to emanate from the
same source. See Sports Auth. Mich., 63 U.S.P.Q.2d at
1794 (“There is nothing in the record, however, to suggest
that merely because the same consumer may purchase
these items, such consumer would consider the goods as
likely to emanate from the same source or have the same
sponsorship.”). Accordingly, substantial evidence sup-
ports the Board’s decision that this factor favors Triumph.
25 COACH SERVICES v. TRIUMPH LEARNING
5. Balancing the DuPont Factors
The Board found that two of the DuPont factors
weighed in favor of CSI, in whole or in part: (1) CSI’s
COACH mark is famous for likelihood of confusion; and
(2) the classes of consumers may overlap. In contrast, the
Board found that the following factors weighed in favor of
Triumph: (1) the goods of the parties are not similar or
related; (2) the goods move in different trade channels;
(3) the marks used by the parties have different meanings
and engender different commercial impressions; and
(4) Triumph markets to sophisticated purchasers. 5 After
balancing these factors, the Board determined that no
likelihood of confusion would arise between the parties’
marks.
On appeal, CSI argues that the Board should have
given more weight to its determination that its COACH
mark was famous. As the Board correctly found, however,
fame, while important, is insufficient standing alone to
establish likelihood of confusion. On the record before us,
and after weighing the relevant DuPont factors de novo,
we agree with the Board that customer confusion is not
likely between the parties’ respective COACH marks.
Although CSI’s COACH mark is famous for likelihood of
confusion purposes, the unrelated nature of the parties’
goods and their different channels of trade weigh heavily
against CSI. Absent overlap as to either factor, it is
difficult to establish likelihood of confusion. Because the
DuPont factors favoring Triumph outweigh the factors
5 Although the Board did not make any explicit
findings on these DuPont factors, Triumph also points out
that: (1) CSI provided no evidence of actual confusion
between the marks; and (2) there was more than 20 years
of concurrent use.
COACH SERVICES v. TRIUMPH LEARNING 26
favoring CSI, the Board was correct in finding no likeli-
hood of confusion.
C. Dilution
The TDRA, which was signed into law on October 6,
2006, amended Section 43(c) of the Lanham Act, 15 U.S.C.
§ 1125(c). It provides that:
the owner of a famous mark that is distinctive,
inherently or through acquired distinctiveness,
shall be entitled to an injunction against another
person who, at any time after the owner’s mark
has become famous, commences use of a mark or
trade name in commerce that is likely to cause di-
lution by blurring or dilution by tarnishment of
the famous mark, regardless of the presence or
absence of actual or likely confusion, of competi-
tion, or of actual economic injury.
15 U.S.C. § 1125(c)(1). Therefore, to prevail on a dilution
claim under the TDRA, a plaintiff must show that: (1) it
owns a famous mark that is distinctive; (2) the defendant
is using a mark in commerce that allegedly dilutes the
plaintiff’s famous mark; (3) the defendant’s use of its
mark began after the plaintiff’s mark became famous; and
(4) the defendant’s use of its mark is likely to cause dilu-
tion by blurring or by tarnishment.
The TDRA defines dilution by blurring as an “associa-
tion arising from the similarity between a mark or trade
name and a famous mark that impairs the distinctiveness
of the famous mark.” 15 U.S.C. § 1125(c)(2)(B). Dilution
by tarnishment is defined as “an association arising from
the similarity between a mark or trade name and a fa-
mous mark that harms the reputation of the famous
mark.” 15 U.S.C. § 1125(c)(2)(C).
27 COACH SERVICES v. TRIUMPH LEARNING
In its Opposition, CSI argued that Triumph’s marks
would blur the distinctiveness of its COACH mark and
tarnish its reputation. On appeal, however, CSI aban-
dons its dilution by tarnishment claim and focuses its
arguments solely on blurring. 6 The Board found that CSI
could not succeed on its dilution claims because it failed to
show that its COACH mark was famous for dilution
purposes. For the reasons explained below, we agree.
Because we find that CSI failed to prove fame for dilution,
we need not address the other statutory factors courts can
consider to determine whether a mark is likely to cause
dilution by blurring.
1. Fame for Dilution
A threshold question in a federal dilution claim is
whether the mark at issue is “famous.” Under the TDRA,
a mark is famous if it “is widely recognized by the general
consuming public of the United States as a designation of
source of the goods or services of the mark’s owner.” 15
U.S.C. § 1125(c)(2)(A). By using the “general consuming
public” as the benchmark, the TDRA eliminated the
possibility of “niche fame,” which some courts had recog-
nized under the previous version of the statute. 7 See Top
Tobacco, LP v. N. Atl. Operating Co., 509 F.3d 380, 384
(7th Cir. 2007) (noting that the reference to the general
public “eliminated any possibility of ‘niche fame,’ which
6 During oral argument, counsel for CSI specifically
indicated that CSI is not pursuing a tarnishment claim on
appeal. See Oral Argument at 0:49, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/2011-1129/all (“We are not pursuing a tar-
nishment claim on appeal . . . we are going to limit it to
blurring.”).
7 The previous version of the statute, prior to the
2006 revision, was the Federal Trademark Dilution Act of
1995 or “FTDA.”
COACH SERVICES v. TRIUMPH LEARNING 28
some courts had recognized before the amendment”). The
TDRA lists four non-exclusive factors for courts to con-
sider when determining whether a mark is famous:
(i) The duration, extent, and geographic reach of ad-
vertising and publicity of the mark, whether ad-
vertised or publicized by the owner or third
parties.
(ii) The amount, volume, and geographic extent of
sales of goods or services offered under the mark.
(iii) The extent of actual recognition of the mark.
(iv) Whether the mark was registered under the Act of
March 3, 1881, or the Act of February 20, 1905, or
on the principal register.
15 U.S.C. § 1125(c)(2)(A). Whether a mark is famous
under the TDRA is a factual question reviewed for sub-
stantial evidence.
Fame for likelihood of confusion and fame for dilution
are distinct concepts, and dilution fame requires a more
stringent showing. 4 J. Thomas McCarthy, McCarthy On
Trademark and Unfair Competition § 24:104 at 24-290
(4th ed. 2011) (“The standard for the kind of ‘fame’ needed
to trigger anti-dilution protection is more rigorous and
demanding than the ‘fame’ which is sufficient for the
classic likelihood of confusion test.”). While fame for
dilution “is an either/or proposition” – it either exists or
does not – fame for likelihood of confusion is a matter of
degree along a continuum. Palm Bay, 396 F.3d at 1374-
75. Accordingly, a mark can acquire “sufficient public
recognition and renown to be famous for purposes of
likelihood of confusion without meeting the more strin-
gent requirement for dilution fame.” 7-Eleven, 83
U.S.P.Q.2d at 1722.
29 COACH SERVICES v. TRIUMPH LEARNING
It is well-established that dilution fame is difficult to
prove. See Toro Co. v. ToroHead Inc., 61 U.S.P.Q.2d 1164,
1180 (T.T.A.B. 2001) (“Fame for dilution purposes is
difficult to prove.”); Everest Capital, Ltd. v. Everest Funds
Mgmt. LLC, 393 F.3d 755, 763 (8th Cir. 2005) (“The
judicial consensus is that ‘famous’ is a rigorous stan-
dard.”); see also 4 McCarthy, § 24:104 at 24-286, 24-293
(noting that fame for dilution is “a difficult and demand-
ing requirement” and that, although “all ‘trademarks’ are
‘distinctive’ – very few are ‘famous’”). This is particularly
true where, as here, the mark is a common English word
that has different meanings in different contexts. Impor-
tantly, the owner of the allegedly famous mark must show
that its mark became famous “prior to the filing date of
the trademark application or registration against which it
intends to file an opposition or cancellation proceeding.”
Toro, 61 U.S.P.Q.2d at 1174.
As noted, fame for dilution requires widespread rec-
ognition by the general public. 15 U.S.C. § 1125(c)(2)(A).
To establish the requisite level of fame, the “mark’s owner
must demonstrate that the common or proper noun uses
of the term and third-party uses of the mark are now
eclipsed by the owner’s use of the mark.” Toro, 61
U.S.P.Q.2d at 1180. 8 An opposer must show that, when
the general public encounters the mark “in almost any
context, it associates the term, at least initially, with the
mark’s owner.” Id. at 1181. In other words, a famous
mark is one that has become a “household name.” Nissan
Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1012
(9th Cir. 2004) (quoting Thane Int’l, Inc. v. Trek Bicycle
Corp., 305 F.3d 894, 911 (9th Cir. 2002)). With this
framework in mind, we turn to CSI’s evidence of fame.
8 Although the Board’s Toro decision predates the
TDRA, its discussion of fame for dilution purposes re-
mains relevant.
COACH SERVICES v. TRIUMPH LEARNING 30
2. CSI Failed to Introduce Sufficient Evidence
of Fame for Dilution
The Board found that CSI’s evidence of fame was in-
sufficient to support a dilution claim. On appeal, CSI
argues that the same evidence establishing fame for
likelihood of confusion also establishes fame for dilution
purposes. Specifically, CSI argues that the Board disre-
garded: (1) sales and advertising figures for years 2000-
2008; (2) its sixteen federal trademark registrations;
(3) unsolicited media attention; (4) joint marketing efforts;
(5) two Second Circuit decisions finding the Coach hang-
tag, which features the COACH mark, to be famous; and
(6) CSI’s internal brand awareness survey showing
awareness among 18-24 year old consumers. We address
each category of evidence in turn. For the reasons set
forth below, we find substantial evidence supporting the
Board’s decision that CSI failed to show the requisite level
of fame for dilution.
Turning first to CSI’s evidence of sales and advertis-
ing expenditures, CSI argues that the Board erred when
it ignored the annual reports that were attached to a
Notice of Reliance. As previously discussed, however, the
Board correctly held that these reports were unauthenti-
cated and thus inadmissible. The only sales and advertis-
ing figures in the record via Ms. Sadler’s testimony were
for one year – 2008 – which, notably, is after Triumph
filed its use-based applications in December 2004. We
agree with the Board that this limited evidence of sales
and advertising is insufficient to show fame. Even if the
Board had considered the annual reports, moreover, such
evidence, standing alone, would be insufficient. See Toro,
61 U.S.P.Q.2d at 1181 (“Merely providing evidence that a
mark is a top-selling brand is insufficient to show this
general fame without evidence of how many persons are
purchasers.”).
31 COACH SERVICES v. TRIUMPH LEARNING
With respect to CSI’s registrations, the Board found
that the mere existence of federally registered trademarks
is insufficient to show that the mark is famous for pur-
poses of dilution because ownership of a registration is
not proof of fame. On appeal, CSI argues that the Board
erred in this determination because one of the statutory
factors a court can consider in the fame analysis is
whether the mark is registered on the principal register.
See 15 U.S.C. § 1125(c)(2)(A)(iv). As Triumph points out,
however, “[o]ne cannot logically infer fame from the fact
that a mark is one of the millions on the Federal Regis-
ter.” 4 McCarthy, § 24:106 at 24-310. While ownership of
a trademark registration is relevant to the fame inquiry,
and – to the extent the Board decision implies otherwise –
the Board erred on this point, proof of registration is not
conclusive evidence of fame.
With respect to media attention, the Board found that
CSI’s evidence fell short of showing “widespread recogni-
tion of opposer’s mark [by] the general population.”
Board Decision, 96 U.S.P.Q.2d at 1611. Specifically, the
Board found that:
the vast majority of unsolicited media recognition
for opposer’s COACH mark comprises a reference
to one of opposer’s products as one of many differ-
ent fashion buys or trends, and the news articles
noting opposer’s renown are too few to support a
finding that opposer’s mark has been transformed
into a household name.
Id. On appeal, CSI argues that the Board ignored hun-
dreds of unsolicited articles mentioning the COACH mark
over the years. CSI points to several examples, including
the following:
• “In fact, Coach’s growth . . . has been phenomenal.
When Sara Lee acquired the firm in 1985, its vol-
COACH SERVICES v. TRIUMPH LEARNING 32
ume was about $18 million. In Sara Lee’s latest
fiscal year, which ended last June 30, Coach’s
sales exceeded $500 million. The name also reso-
nates with consumers. The brand ranked eighth
among the top 10 in accessories firms in the latest
Fairchild 100 consumer survey of fashion labels,
in 1995. J.A. 3607 (Women’s Wear Daily, May 5,
1997).
• “Coach, one of the top makers of status handbags
in the United States . . .” J.A. 3598 (The New
York Times, Jan. 27, 1999).
• “Coach’s creative director has helped transform
the 60-year old company into a must-have Ameri-
can icon.” J.A. 3156 (Women’s Wear Daily, June
2001).
• “Will Coach Become Too Popular? . . . Coach, the
maker and retailer of stylish handbags, just had a
blowout season. . . . Clearly Coach has recorded
some of the best growth numbers of any retailer or
accessories maker in recent years.” J.A. 3543
(Business Week, Jan. 24, 2007).
Looking at the media attention in the record, there is
certainly evidence that CSI’s COACH mark has achieved
a substantial degree of recognition. That said, many of
the articles submitted are dated after Triumph filed its
registration applications and thus do not show that CSI’s
mark was famous prior to the filing date. See Toro, 61
U.S.P.Q.2d at 1174 (“an owner of an allegedly famous
mark must establish that its mark had become famous
prior to the filing date of the trademark application”
which it opposes). And, there is substantial evidence
supporting the Board’s determination that many of the
references are limited to mentioning one of CSI’s COACH
products among other brands. Accordingly, even though
33 COACH SERVICES v. TRIUMPH LEARNING
there is some evidence of media attention, substantial
evidence supports the Board’s conclusion that the media
evidence submitted fails to show widespread recognition.
With respect to joint marketing efforts, CSI argued
that other popular brands, including LEXUS and
CANON, have used the COACH mark in connection with
their products. The Board found that CSI “failed to
provide any testimony regarding the success of the joint
marketing efforts and the effect of those efforts in promot-
ing opposer’s mark.” Board Decision, 96 U.S.P.Q.2d at
1611, n.37. We agree. Without evidence as to the success
of these efforts or the terms of any contracts involved,
they have little value here.
Next, the Board found that CSI’s 2008 brand aware-
ness study was “of dubious probative value” because it did
not offer a witness with first-hand knowledge of the study
to explain how it was conducted. Id. at 1611. The Board
further noted that, although the study showed a high
level of brand awareness among women ages 13-24, it
provided no evidence of brand awareness among women
generally, or among men. See Top Tobacco, 509 F.3d at
384 (noting that the TDRA eliminated the possibility of
“niche fame” as a basis for finding a mark famous). And,
the survey was conducted in 2007, several years after
Triumph filed its applications. Given these circum-
stances, we find no error in the Board’s decision to give
this survey limited weight.
CSI also argues that the Board failed to adequately
consider two Second Circuit decisions finding that the
hangtag attached to its various handbags, which features
the COACH mark, is distinctive. See Coach Leatherware
Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166 (2d Cir.
1991) (finding that Coach’s lozenge-shaped leather tags
embossed with the name “Coach Leatherware,” which are
COACH SERVICES v. TRIUMPH LEARNING 34
attached to Coach’s handbags by beaded brass chains,
“have become distinctive and valuable through Coach’s
promotional efforts and by virtue of its upscale reputa-
tion”); see also Coach, Inc. v. We Care Trading Co., Inc., 67
Fed. Appx. 626, 630 (2d Cir. 2002) (affirming the jury’s
dilution verdict on grounds that “the jury’s determination
that the hang tag was famous and distinctive was not
unreasonable” and “the substantial similarity of the two
marks here coupled with the use of Coach’s very distinc-
tive hang tag shape amply justified the jury’s verdict”).
Although the Board did not specifically address these
cases, we agree with Triumph that they are unrelated and
irrelevant, particularly because: (1) the 1991 case did not
involve a dilution claim; and (2) both cases focus on the
hangtag feature on CSI’s handbags, not on the alleged
fame of the COACH mark generally.
Based on the foregoing, we agree with the Board that
CSI failed to provide sufficient evidence of fame for dilu-
tion purposes. Absent a showing of fame, CSI’s dilution
claim fails, and we need not address the remaining statu-
tory factors for dilution by blurring.
Before moving on, we pause to emphasize the fact-
specific nature of our holding today. While the burden to
show fame in the dilution context is high – and higher
than that for likelihood of confusion purposes – it is not
insurmountable. We do not hold that CSI could never
establish the requisite level of fame for dilution purposes.
We hold only that, on the record presented to it, the Board
had substantial support for its conclusion that CSI’s
evidentiary showing was just too weak to do so here.
D. Whether Triumph’s Marks Were Registrable
As an alternative ground for opposition, CSI argued
that Triumph’s COACH mark is merely descriptive and
thus not registrable under 15 U.S.C. § 1052(e). The Board
35 COACH SERVICES v. TRIUMPH LEARNING
found that, although CSI had standing to oppose Tri-
umph’s applications on descriptiveness grounds, Triumph
demonstrated that its COACH marks had acquired dis-
tinctiveness.
Both parties take issue with portions of the Board’s
decision on descriptiveness. For its part, Triumph argues
that the Board incorrectly found that CSI had standing to
oppose registration on descriptiveness grounds. In con-
trast, CSI argues that it had standing and that “there was
no evidence in the record to support a finding that Tri-
umph’s descriptive ‘Coach’ marks have acquired distinct-
iveness.” Appellant’s Br. 19. We address the parties’
arguments in turn.
1. Standing
Standing is a question of law that this court reviews
de novo. Under Article III of the United States Constitu-
tion, a plaintiff must show a “case or controversy” be-
tween the parties to establish standing. Ritchie v.
Simpson, 170 F.3d 1092, 1094 (Fed. Cir. 1999). The
“case” and “controversy” restrictions do not, however,
apply to matters before administrative agencies. Id.
Instead, for an agency such as the PTO, standing is
conferred by statute. Here, standing is conferred by
Section 13 of the Lanham Act, which provides, in perti-
nent part, that “[a]ny person who believes that he would
be damaged by the registration of a mark . . . may, upon
payment of the prescribed fee, file an opposition in the
Patent and Trademark Office, stating the grounds there-
for.” 15 U.S.C. § 1063(a). The purpose of the standing
requirement is “to prevent litigation where there is no
real controversy between the parties, where a plaintiff,
petitioner or opposer, is no more than an intermeddler.”
Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024,
1028-29 (C.C.P.A. 1982).
COACH SERVICES v. TRIUMPH LEARNING 36
In addition to meeting the broad requirements of Sec-
tion 13, an opposer must satisfy two judicially-created
standing requirements. Ritchie, 170 F.3d at 1095. Spe-
cifically, an opposer must show: (1) a “real interest” in the
proceeding; and (2) a “reasonable basis” for believing that
it would suffer damage if the mark is registered. Id.
Under the “real interest” requirement, an opposer must
have “a legitimate personal interest in the opposition.”
Id. With respect to the second inquiry, the opposer’s
belief of damage “must have a reasonable basis in fact.”
Id. at 1098 (citation and quotation omitted).
Here, the Board found that, “[b]ecause opposer’s reg-
istrations are of record, opposer has established its stand-
ing.” Board Decision, 96 U.S.P.Q.2d at 1604. Although
this case is unusual because CSI asserted likelihood of
confusion, dilution, and mere descriptiveness, without
asserting that it has the right to use the mark descrip-
tively, the Board found “no question that opposer has
established a real interest in preventing the registration
of applicant’s mark.” Id. at 1605. In reaching this deci-
sion, the Board noted that “standing and grounds may be
related, but they are distinct inquiries.” Id. (citation
omitted).
On appeal, Triumph argues that: (1) CSI’s only wit-
ness testified that it would not be harmed from the “al-
leged descriptive nature” of Triumph’s mark; 9 (2) CSI
9 During her deposition, Sadler testified as follows:
Q. You believe that a descriptive use of the
word “Coach” by someone is going to cause
your company harm?
A. No.
Q. So it is dilution and likelihood of confusion
that would cause your company harm,
correct?
37 COACH SERVICES v. TRIUMPH LEARNING
“failed to establish that it uses the mark COACH in a
descriptive fashion or in a manner to describe its goods”;
and (3) because CSI does not have an interest in using the
Triumph marks descriptively, it lacks standing to oppose
Triumph’s marks on descriptiveness grounds. Appellee’s
Br. 46-47. Triumph’s arguments are not persuasive.
As the Board noted in its decision, this court has pre-
viously found that, “[o]nce standing is established, the
opposer is entitled to rely on any of the grounds set forth
in section 2 of the Lanham Act which negate applicant’s
right to its subject registration.” Jewelers Vigilance v.
Ullenberg Corp., 823 F.2d 490, 493 (Fed. Cir. 1987) (cita-
tion omitted); see also Enter. Rent-A-Car Co. v. Advantage
Rent-A-Car, Inc., 330 F.3d 1333, 1345 (Fed. Cir. 2003)
(“Once standing is established, in order to state a claim,
an opposer must base its ground of opposition on a statu-
tory claim found in the Lanham Act.”); see also Estate of
Biro v. Bic Corp., 18 U.S.P.Q.2d 1382, 1385-86 (T.T.A.B.
1991) (noting that, once the opposer shows “a personal
interest in the outcome of the case . . . the opposer may
rely on any ground that negates applicant’s right to the
registration sought”). Accordingly, in this context, once
an opposer meets the requirements for standing, it can
rely on any of the statutory grounds for opposition set
forth in 15 U.S.C. § 1052.
Triumph does not challenge CSI’s standing to assert
claims for likelihood of confusion and dilution, and in-
A. Correct.
Mr. Zivin: Objection. Mischaracterization.
J.A. 3672: 4-13. We do not view this testimony as an
admission that registration of Triumph’s marks would not
harm CSI.
COACH SERVICES v. TRIUMPH LEARNING 38
stead focuses its standing arguments solely on CSI’s
descriptiveness challenge. There is no question that CSI
has a personal stake in the outcome of the opposition and
has asserted it will be harmed by registration of Tri-
umph’s marks. Therefore, any theory that would prevent
Triumph from registering its marks would necessarily
prevent the alleged harm to CSI. Because CSI has estab-
lished a real interest and reasonable basis for believing
registration of Triumph’s marks will cause harm in the
form of likelihood of confusion or dilution, it also has
standing to assert a claim on descriptiveness grounds.
2. Mere Descriptiveness
Marks that are “merely descriptive” of goods and ser-
vices are not entitled to protection. In re Abcor Dev.
Corp., 588 F.2d 811, 813 (C.C.P.A. 1978). A mark is
merely descriptive “if it immediately conveys knowledge
of a quality, feature, function, or characteristic of the
goods or services with which it is used.” In re Bayer
Aktiengesellschaft, 488 F.3d 960, 963 (Fed. Cir. 2007)
(“Bayer”) (citing In re Gyulay, 820 F.2d 1216, 1217 (Fed.
Cir. 1987)). A mark may be merely descriptive “even if it
does not describe the ‘full scope and extent’ of the appli-
cant’s goods or services.” In re Oppedahl & Larson LLP,
373 F.3d 1171, 1173 (Fed. Cir. 2004) (citation omitted).
It is well-established that “[d]escriptiveness of a mark
is not considered in the abstract.” Bayer, 488 F.3d at 963-
64. Instead, the mark must be “considered in relation to
the particular goods for which registration is sought, the
context in which it is being used, and the possible signifi-
cance that the term would have to the average purchaser
of the goods because of the manner of its use or intended
use.” Id. at 964. Evidence that a term is merely descrip-
tive “may be obtained from any competent source, such as
dictionaries, newspapers, or surveys.” Bayer, 488 F.3d at
39 COACH SERVICES v. TRIUMPH LEARNING
964 (quoting In re Bed & Breakfast Registry, 791 F.2d
157, 160 (Fed. Cir. 1986)). A determination that a mark
is merely descriptive is a factual finding that this court
reviews for substantial evidence. Bayer, 488 F.3d at 964.
The Board found that COACH is merely descriptive
when used in connection with educational materials used
to prepare students for standardized tests because it
“immediately conveys to purchasers the purpose of the
materials.” Board Decision, 96 U.S.P.Q.2d at 1617. In
support of this finding, the Board pointed to dictionary
definitions of the word “coach,” which include: (1) “a
private tutor who prepares a student for an examination”;
(2) “a person who trains an athlete”; and (3) “to give
instruction or advice in the capacity of a coach; instruct.”
Id. at 1616-17. The Board also relied on evidence of third-
party use of the term “coach.” For example, CSI intro-
duced forty-three titles of books and software incorporat-
ing the word “coach,” including: “The Business Coach” and
“My SAT Coach.” Based on the evidence of record, the
Board concluded that the word “coach” is “a personifica-
tion of the act of instructing or tutoring for an examina-
tion.” Id. at 1616-17.
Substantial evidence supports the Board’s decision
that Coach is merely descriptive. Specifically, we agree
that the dictionary definitions in the record, coupled with
evidence of third parties that use the term “coach” to
describe services that are similar to those identified in
Triumph’s application, support the Board’s descriptive-
ness finding.
3. Secondary Meaning
Although the Board found that Triumph’s marks were
merely descriptive when used in connection with its
goods, it concluded that Triumph provided sufficient
COACH SERVICES v. TRIUMPH LEARNING 40
evidence showing that its COACH marks had acquired
secondary meaning through use in commerce.
It is well-established that a descriptive mark can be
registered if it has acquired secondary meaning. Section
2(f) of the Lanham Act provides, in part, that:
nothing herein shall prevent the registration of a
mark used by the applicant which has become dis-
tinctive of the applicant’s goods in commerce. The
Director may accept as prima facie evidence that
the mark has become distinctive, as used on or in
connection with the applicant’s goods in com-
merce, proof of substantially exclusive and con-
tinuous use thereof as a mark by the applicant in
commerce for the five years before the date on
which the claim of distinctiveness is made.
15 U.S.C. § 1052(f).
To establish secondary meaning, or acquired distinct-
iveness, an applicant must show that “in the minds of the
public, the primary significance of a product feature or
term is to identify the source of the product rather than
the product itself.” In re Dial-A-Mattress Operating Co.,
240 F.3d 1341, 1347 (Fed. Cir. 2001) (citation omitted).
To determine whether a mark has acquired secondary
meaning, courts consider: advertising expenditures and
sales success; length and exclusivity of use; unsolicited
media coverage; copying of the mark by the defendant;
and consumer studies. In re Steelbuilding.com, 415 F.3d
1293, 1300 (Fed. Cir. 2005). Acquired distinctiveness is a
question of fact which is “reviewed under the clearly
erroneous standard.” Yamaha Int’l Corp. v. Hoshino
Gakki Co., Ltd., 840 F.2d 1572, 1581 (Fed. Cir. 1988).
As the Board noted, Triumph raised acquired distinct-
iveness as its sixth affirmative defense in its answer to
41 COACH SERVICES v. TRIUMPH LEARNING
CSI’s amended notice of opposition. Based on the record
before it, the Board made the following factual findings:
• Triumph is the largest publisher of educational
materials for preparing for standardized tests and
COACH is its primary trademark;
• Between 2003-2008, Triumph’s advertising expen-
ditures quadrupled and exceeded six figures;
• Between 2003-2007, Triumph’s revenues have
reached seven figures;
• Triumph has been promoting COACH as the name
of its series of books since at least 1989.
Board Decision, 96 U.S.P.Q.2d at 1617. CSI challenged
Triumph’s evidence on grounds that: (1) there was no
direct evidence of consumer recognition; (2) Triumph
introduced and relied upon self-serving, uncorroborated
testimony from its Vice President of Marketing: Jane
Fisher; (3) Triumph’s sales success is not necessarily
indicative of acquired distinctiveness; (4) Triumph’s use
has not been substantially exclusive; and (5) Triumph did
not present evidence of media recognition. The Board
rejected each of these arguments and found that Triumph
met its burden of showing that its COACH marks have
acquired distinctiveness.
First, the Board stated that, contrary to CSI’s conten-
tion, Triumph was not required to introduce a consumer
survey and that the Board could determine consumers’
reactions to the mark based on inferences from the record.
Next, the Board found that Ms. Fisher’s testimony was
subject to cross-examination and found her testimony –
which dealt with Triumph’s advertising expenditures and
revenue between 2003 and 2008 – credible. The Board
further found that Triumph’s use of its COACH mark in
connection with educational materials for preparing for
COACH SERVICES v. TRIUMPH LEARNING 42
standardized tests “is, and has been, substantially exclu-
sive.” Board Decision, 96 U.S.P.Q.2d at 1619. And, the
Board concluded that Triumph has been “promoting itself
as the ‘Coach’ brand since 1989 through its references to
‘Coach series,’ ‘Coach Books and Software,’ and ‘the
Coach.’” Id. Based on the foregoing, the Board found
Triumph established its affirmative defense of acquired
distinctiveness.
On appeal, CSI argues that Triumph’s sales figures
are insufficient to prove secondary meaning and that
Triumph’s use of the COACH mark is not “substantially
exclusive,” particularly given that there was “evidence of
43 different book and software titles showing use of the
designator ‘Coach’ for coaching materials.” Appellant’s
Br. 53-54. CSI also argues that, in finding that Triumph
has used its COACH marks “since 1989,” the Board
improperly relied on evidence it said it would not consider
because it was not authenticated. Specifically, CSI ar-
gues that: (1) Triumph’s witness, Ms. Fisher, lacked any
personal knowledge of certain marketing documents
because she was not working for Triumph at the time the
materials allegedly were used; and (2) “review of the
alleged brand since 1989 would show that Triumph did
not seek to use ‘Coach’ as a ‘brand’ until Fall 2003.”
Appellant’s Reply 14. We address CSI’s arguments in
turn.
With respect to the forty-three book and software ti-
tles not affiliated with Triumph that include the word
“coach,” the Board found no evidence in the record as to
their sales and that most of the titles do not relate to
educational materials for preparing for standardized
tests. Although the Board found five titles of record that
arguably relate to Triumph’s subject matter – including
“A Writer’s Coach”, “My SAT Coach”, and “My Word
Coach” – it dismissed those titles at least in part on
43 COACH SERVICES v. TRIUMPH LEARNING
grounds that they were published after Triumph filed its
applications in 2004. The Board cites no authority for its
decision to disregard these titles based on their publica-
tion dates, and Triumph has offered none. Indeed, the
Board has previously noted that “[a]cquired distinctive-
ness and buyer recognition is to be tested in an opposition
proceeding as of the date the issue is under consideration.
The filing date is not a cutoff for any evidence developing
after that time.” Target Brands, Inc. v. Hughes, 85
U.S.P.Q.2d 1676, 1681 (T.T.A.B. 2007) (citing McCormick
& Co. v. Summers, 354 F.2d 668 (C.C.P.A. 1966); Harsco
Corp. v. Electrical Sciences, Inc., 9 U.S.P.Q.2d 1570,
(T.T.A.B. 1988)). We conclude that the Board’s failure to
consider all pre-decision third-party use of the term
“coach” for educational materials undermines its secon-
dary meaning analysis and requires remand so that the
Board can assess the extent to which those titles might
cut against a claim of “substantially exclusive use.”
With respect to Triumph’s use of the COACH mark,
the Board concluded that Triumph has been promoting
itself as “the ‘Coach’ brand since 1989.” Board Decision,
96 U.S.P.Q.2d at 1619. Triumph offered Ms. Fisher’s
testimony to authenticate advertising materials dating
back to the early 1990s. Because Ms. Fisher did not begin
working for Triumph until July 2003, CSI objected to her
testimony “regarding any matters other than the identifi-
cation of business records prior to July 2003 on the
ground that she lack[ed] personal knowledge about appli-
cant’s business prior to that date.” Id. at 1603. The
Board sustained CSI’s objection, stating that it would
consider Ms. Fisher’s testimony regarding pre-July 2003
matters “only for purposes of authenticating documents
kept by applicant in the ordinary course of business.” Id.
On appeal, CSI argues that: (1) “there was no testi-
mony authenticating these documents as business records
COACH SERVICES v. TRIUMPH LEARNING 44
of Triumph”; and (2) Ms. Fisher “had no personal knowl-
edge of where, when, to whom and how many of the
materials were distributed.” Appellant’s Br. 55 n.23. On
these points, CSI is correct. Review of the relevant testi-
mony reveals that Ms. Fisher identified certain catalogs,
indicated that those catalogs were actually used to mar-
ket and sell products, and testified as to when the cata-
logs were used. Nowhere is a foundation laid to establish
that the catalogs identified actually were prepared and
kept as business records of Triumph. Given the Board’s
ruling excluding testimony by Ms. Fisher about market-
ing activities of which she had no personal knowledge,
moreover, there is no admissible testimony in the record
regarding the actual use of the catalogs or the fact of
marketing prior to 2003. Accordingly, on remand, the
Board must address the weight, if any, to be given to pre-
July 2003 documents in the absence of any testimony
authenticating them or addressing their use. The Board
must then assess whether these apparent gaps in Tri-
umph’s proofs impact the Board’s determination that the
mark was in continuous use during any relevant period.
Because the Board’s evidentiary errors call into ques-
tion the validity of its secondary meaning analysis, we
vacate the Board’s decision solely on its finding of ac-
quired distinctiveness and remand for further proceed-
ings.
CONCLUSION
For the foregoing reasons, and because we find that
CSI’s remaining arguments are without merit, we affirm
the Board’s decision dismissing CSI’s opposition on likeli-
hood of confusion and dilution grounds. With respect to
acquired distinctiveness, however, we vacate and remand
for further proceedings consistent with this opinion.
45 COACH SERVICES v. TRIUMPH LEARNING
AFFIRMED-IN-PART, VACATED-IN-PART,
REMANDED
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4 U.S. 225 (____)
4 Dall. 225
Commonwealth
versus
Addison.
Supreme Court of United States.
In support of the motion, the attorney-general.
But, by the COURT:
We are, unanimously, of opinion, that the case does not present to our consideration an indictable offence; and, of course, it is not a case, in which an information ought to be granted. But we are (with the same unanimity) of opinion, that every judge has a right, and, emphatically, that it is his duty, to deliver his sentiments upon every subject that occurs in Court. We add, so far as the expression of our sense of decorum may have weight, that we think, it would be indecent and improper, in any presiding judge, to attempt to prevent his associates from the exercise of this right; from the performance of this duty.
Motion refused.
| {
"pile_set_name": "FreeLaw"
} |
881 So.2d 758 (2004)
David Anthony BATES, et al.
v.
Chavez CARUSO, et al.
No. 2003-CA-2150.
Court of Appeal of Louisiana, Fourth Circuit.
July 28, 2004.
*759 Glenn C. McGovern, New Orleans, LA, for Plaintiffs/Appellants.
Sherry S. Landry, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Annabelle H. Walker, Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
MAX N. TOBIAS, JR., Judge.
Plaintiff/appellant, David Bates ("Bates"), appeals from a judgment rendered in favor of the defendant/appellee, the City of New Orleans (hereinafter "the City"), stemming from sexual abuse perpetrated upon Bates by former police officer, Chavez Caruso ("Caruso"). After a review of the record and the applicable law, we affirm the judgment.
On 1 October 1992, the City of New Orleans entered into an agreement with the New Orleans Police Athletic League (hereinafter "PAL") to develop a scouting program within the already-existing PAL program. PAL is a recreation-oriented juvenile crime prevention program that relies heavily on athletics and recreational activities to "create and cement the bond between the police officers and the kid on the street." PAL was administered by the New Orleans Police Department (hereinafter "NOPD") as a separate unit of the department. Police officers working with PAL were assigned to the unit and had no other police duties, although they were still paid by the City.[1]
Caruso was assigned as the scoutmaster of PAL Boy Scout Troup # 92. However, *760 as recognized by the trial court, and as supported by the record, the troop was never officially sanctioned by the Boy Scouts of America or its local affiliate. Further, no evidence exists that Caruso received any training on his duties as scoutmaster or that the NOPD promulgated any written rules pertaining to the duties and/or limitations of a scoutmaster.
Caruso had been engaged in an on-again, off-again relationship with the Bates' mother ("Mrs. Bates"), who passed away in 1998. In approximately 1993, after the relationship had ended, Caruso asked Mrs. Bates if the appellant could join Boy Scout Troup # 92.[2] Bates was 15 years of age at the time.[3] In addition to scout meetings, camping trips, and marching in Mardi Gras parades, the members of Troup # 92 often spent time at Caruso's home. Some of them, including Bates, would spend a weekend night at Caruso's house.[4] In particular, Mrs. Bates would frequently allow Bates to spend weekends there, dropping him off on Fridays and picking him up on Sunday mornings. Caruso also had another minor boy living in his home.
On several occasions, while sleeping at Caruso's house, Caruso sexually abused Bates. The abuse never occurred during a scouting activity or scouting overnight. Bates finally told his mother of the abuse in 1995 when he was 16 years old. The abuse was reported to the NOPD, which conducted surveillance and confirmed that adolescent boys were present in Caruso's house. Caruso was eventually arrested and, on 12 August 1997, pled guilty to two counts of molestation, violations of La. R.S. 14:81.2, and one count of aggravated crime against nature, a violation of La. R.S. 14:89.1. He was sentenced to three years at hard labor without benefit of probation, parole, or suspension of sentence.
In October 1997, Bates and his mother, individually and as his administratrix and natural tutor, filed a petition for damages against Caruso, the City, the NOPD, the New Orleans Area Counsel Boy Scouts of America, and Caruso's homeowner's insurer, for pecuniary and non-pecuniary damages suffered as a result of the abuse.
A default judgment was entered against Caruso, while the New Orleans Area Counsel Boy Scouts of America (now the Southeast Louisiana Counsel, Boy Scouts of America) was dismissed without prejudice. However, before being dismissed, the New Orleans Area Counsel Boy Scouts of America answered Bates' discovery. The discovery responses, which were filed into the record, reveal that: (1) Caruso was never affiliated in any capacity as a registered leader with the New Orleans Area Counsel Boy Scouts of America; (2) the appellant was not a registered scout as reflected by the Counsel's records; (3) based upon a search of records back to 1976, Troup # 92 was not a New Orleans Troup, but is located in St. John the Baptist Parish; and (4) the computer files failed to reveal that either Bates or Caruso were ever associated with any organization within the New Orleans Area Counsel.
A bench trial was held on 13 April 2003. On 7 May 2003, the trial court rendered judgment in favor of the City. In its reasons for judgment, the trial court stated:
*761 The threshold question is whether or not Caruso's conduct was in the course and scope of his employment. The Court finds that the conduct was not. The factors to be considered in determining whether an employer may be liable for an intentional tort of an employee are whether the tortious act was primarily employment rooted, reasonably incidental to the performance of the employee's duties, occurred on the employer's premises, and occurred during the hours of employment duties as to be regarded as a risk of harm fairly attributable to the employer's business imposes vicarious liability on an employer. In the case at bar, the acts were committed at the employee's home outside of work hours. The acts did nothing to further the employer's interest, they were entirely personal. This is not to say that the Court is condoning the extraordinarily sloppy policies of the NOPD. To the contrary. But under the relevant case law, the NOPD and the City of New Orleans aren't liable to David Bates.
The issue presented for appeal is whether Caruso's intentional conduct was sufficiently employment-related so that vicarious liability should be imposed upon the City. This question is a mixed question of fact and law, and the trial court's resolution of that question is entitled to great deference on review by the court of appeal under the manifest error standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Nevertheless, the reviewing court must determine that the record contains sufficient support in the evidence, viewed in the light most favorable to the party that prevailed in the trial court, for a rational trier of fact to have found that the tortious conduct was or was not employment-related. The reviewing court can only reverse a lower court's factual findings when (1) the record reflects that a reasonable factual basis does not exist for the finding of the trial court and (2) the record establishes that the finding is clearly wrong. Russell v. Noullet, 98-0816, p. 5 (La.12/1/98), 721 So.2d 868, 871-72.
The Supreme Court stated as follows in Russell:
The principle of vicarious liability is codified in La. Civ.Code art. 2320, which provides that an employer is liable for the tortious acts of its employees "in the exercise of the functions in which they are employed." While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96); 673 So.2d 994, 996, citing Benoit v. Capitol Mfg. Co., 617 So.2d 477, 479 (La.1993). The inquiry requires the trier of fact to determine whether the employee's tortious conduct was "so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests." LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974).[5]
*762 Id. at p. 4, 721 So.2d at 871. It is not necessary that all four factors be met in order to find liability. There are no magical requirements and each case must be decided on its own merits. Miller v. Keating, 349 So.2d 265 (La.1977). "Generally speaking, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer." Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226-27.
The record clearly demonstrates that the City promoted the PAL scouting program and that the program was used to raise money for it and other PAL activities. In addition, the City received benefits in the form of good publicity from promoting the program through public appearances, like marching in Mardi Gras parades. Insofar as fundraising, businesses in the City contributed money to the PAL program, such as Freeport McMoRan and Entergy.
This court is deeply troubled by the City's actions in this matter. The evidence demonstrates that it promoted a "bona fide" scouting program that did not exist, at least according to the Boy Scouts of America. In addition, it placed Caruso in charge as scoutmaster, despite any confirmation that he had a scouting background and/or the ability or training to assume that position. Further, the record is devoid of any evidence that Caruso was in any way supervised in his activities as a scoutmaster. The City placed Caruso in a position of trust with these young men and their parents without any knowledge or confirmation that any trust was warranted.
On the other hand, as recognized by the trial court, Caruso's crimes were intentional acts that were committed at his home outside of his working hours as a scoutmaster or member of the PAL program. We cannot ignore the fact that Caruso was a presence in Bates' life before the scouting activities began, although the "sleepovers" did not begin until after Bates joined the scouts. In fact, the testimony was that Mrs. Bates viewed Caruso as a "father figure" to her boys and was in favor of the additional time Bates spent with Caruso. This is not to say that Mrs. Bates was in any way responsible for what happened to her son. Instead, it demonstrates that Bates spent time with Caruso that was not primarily employment related or motivated.
We are also aware of the testimony in which Bates links his visits to the Caruso home with the scout meetings that took place on Saturday mornings. While this might explain an occasional Friday night sleepover, it does not account for the additional time spent with Caruso, and does not necessarily confer vicarious liability on the City.
Bates urges the court to follow the reasoning in Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1 Cir.1979), and Turner v. State, 494 So.2d 1292 (La.App. 2 Cir.1986), to impose liability. However, both cases are distinguishable from the matter before us. In Applewhite, the plaintiff was taken into police custody by a police officer for the City of Baton Rouge, and taken to a desolate location where she was forced to engage in sexual acts with him and a corrections officer employed by the State of Louisiana. The court found that the City of Baton Rouge was liable because the acts were committed by an armed uniformed officer in a vehicle provided by the City under the apparent authority of his position. Id. at 120-21. In the instant matter, no employment-related basis existed for the overnight visits at Caruso's home. We find no connection *763 between the overnights and the approved scouting activities so as to impose liability upon the City.
In Turner, a recruiting officer for the Louisiana National Guard ("LNG") was invited to the Turner home to discuss with four young women their joining the LNG. The officer interviewed the women and then deceived them into believing that he had the authority to conduct a physical exam. He then proceeded to touch the women inappropriately. After being denied admission to the LNG and upon learning that the officer was not authorized to conduct the physical, suit was filed.
Liability was imposed because the court found:
Sudduth's battery upon the young women was closely connected in time, place, and causation to his employment duties. The sergeant visited the girls in his capacity as a recruiting officer after they expressed a desire to enter the LNG. The Turner home where the incident occurred was located in Tensas Parish which was part of the recruiting area assigned to Sgt. Sudduth and the incident occurred during working hours. During the interview process, he mislead the young women into believing that he had authority to conduct a physical examination. Thus, the tortious conduct committed by Sgt. Sudduth was reasonably incidental to the performance of his duties as a recruiting officer although totally unauthorized by the employer and obviously motivated by his personal interests. Furthermore, the sergeant's actions were so closely connected to his employment duties that the risk of harm faced by the young women was fairly attributable to his employer, who had placed the sergeant in a position of trust and authority in contacting young persons for recruitment into the guard. See Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1st Cir.1979) in which the City was held liable for the conduct of police officers who used their position of trust and authority to order the plaintiff into their patrol car where they raped her.
Sudduth's conduct, we conclude, was within the scope of his employment. The State of Louisiana is thus answerable in damages for the injuries sustained by the plaintiffs.
Id. at 1296. In this case, however, Caruso was not acting as a scoutmaster for the PAL scouting program when the abuse took place. While the City placed Caruso in a position of trust and authority, his actions were not so closely connected to his employment duties that the risk of harm faced by Bates is fairly attributable to his employer.
In addition, we reject the argument that Caruso was always "on the job" as a police officer. For example, in Roberts v. Benoit, 605 So.2d 1032 (La.1991), the court found the sheriff's office was not liable for an accidental shooting by an off-duty employee (a cook) who had been commissioned as a deputy sheriff. The court based its decision partly on the fact that the sheriff's office had neither given the gun to the cook/deputy, nor was he required to carry one. In its brief, the City quotes a passage from a 1959 New York case, which was also quoted by the Roberts court:
It is important to distinguish this situation from the cases in which intoxicated or unbalanced police officers, generally after a tour of the bars, proceeded to shoot some innocent bystander. Absent proof of prior notice of such propensities on the part of the authorities, the city may not be held liable under the doctrine because the officer has then gone "outside of his employment, and without regard to his service, acting maliciously, *764 or in order to effect some purpose of his own."
Roberts, supra, at 1038, quoting Collins v. City of New York, 11 Misc.2d 76, 171 N.Y.S.2d 710, 714 (Sup.Ct.1958), aff'd 7 N.Y.2d 822, 196 N.Y.S.2d 700, 164 N.E.2d 719 (1959).
In the instant matter, the City had no knowledge of Caruso's propensity to abuse teenage boys. We conclude that Caruso was outside his employment and was effecting a purpose of his own when the abuse took place.
Admittedly, this is a troubling case, one that we may have decided differently. However, in light of the evidence in the record, we do not find that the trial court was manifestly erroneous or clearly wrong by finding in favor of the City. Consequently, we affirm the judgment.
AFFIRMED.
NOTES
[1] The initial monies for the PAL program came from a federal block grant, but the program continued though donations from people and companies in the New Orleans area.
[2] There is some evidence in the record that Mrs. Bates and Caruso were dating at the time the abuse took place, however, the appellant never spent a night at Caruso's home prior to joining the PAL scouting program.
[3] The appellant is a mentally challenged young man.
[4] There is conflicting evidence in the record on this point
[5] The LeBrane factors inquire into:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee's duties;
(3) whether the act occurred on the employer's premises; and
(4) whether it occurred during the hours of employment.
LeBrane, 292 So.2d at 218.
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T.C. Summary Opinion 2005-42
UNITED STATES TAX COURT
JAMES PETERS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17514-03S. Filed April 14, 2005.
James Peters, pro se.
Laura A. McKenna, for respondent.
POWELL, Special Trial Judge: This case was heard pursuant
to the provisions of section 74631 of the Internal Revenue Code
in effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority.
1
Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue.
- 2 -
Respondent determined a $1,234 deficiency in petitioner’s
2000 Federal income tax. The issues are whether a $4,921
distribution to petitioner from an individual retirement account
(IRA) was includable in his gross income and is subject to the
10-percent additional tax imposed by section 72(t).
At the time the petition was filed, petitioner was a
resident of Deerfield Beach, Florida.
Background
Petitioner was employed by Preferred Respiratory from 1987
through 1999. The company created an IRA for his benefit, and it
was administered by Sterling Trust Company (Sterling Trust). The
IRA had three assets: A cash balance, an OppenheimerFunds
investment, and a participant’s note in a retail shopping center
project called Allen’s Creek.2 During the year at issue these
assets were valued at $96.83, $2,471.23, and $2,353,
respectively. The Allen’s Creek project was managed by BSB
Management Group, Inc., which was owned by Bruce Butler (Mr.
Butler). Petitioner was the only named beneficiary of the IRA.
In a letter dated March 13, 2000, Sterling Trust notified
petitioner of its intention to resign as trustee of his IRA on
April 30, 2000, because it was no longer feasible to administer
accounts holding investments affiliated with Mr. Butler.
2
In the transcript this entity is referred to as Ellen’s
Creek, but all documents refer to this as Allen’s Creek.
- 3 -
Petitioner was informed that if he wanted Sterling Trust to
transfer the assets and cash directly into another IRA, he would
have to forward to them the appropriate forms of a successor
trustee before April 30, 2000. Sterling Trust explained that a
direct transfer of the IRA’s assets and cash to another IRA
account on or before April 30, 2000, would not be reported to the
Internal Revenue Service. Sterling Trust further explained that
if petitioner did not initiate a direct transfer into a successor
IRA, they would be forced to distribute the assets to him
directly, resulting in a reportable, taxable event that would
subject him to a “10% premature penalty” if he did not then
transfer the assets and cash into another IRA within 60 days of
the distribution.
Petitioner also received a letter regarding Sterling Trust’s
resignation as trustee from Mr. Butler. Mr. Butler suggested JW
Genesis Securities, Inc. (Genesis) as a successor trustee and
told petitioner to contact him for the appropriate forms.
Petitioner did not contact Sterling Trust before their
resignation as his IRA trustee. On May 31, 2000, Sterling Trust
distributed all of the assets in the IRA directly to petitioner.
Ownership of the OppenheimerFunds investment and the Allen’s
Creek note was transferred to petitioner, and Sterling Trust
issued petitioner a check for the cash balance. Petitioner
eventually cashed out the OppenheimerFunds investment and used
- 4 -
the money, along with the IRA cash balance, for personal
expenses. Mr. Butler filed for bankruptcy in 2004, and
petitioner is currently pursuing a claim for the recovery of his
Allen’s Creek investment as one of Mr. Butler’s creditors.3
Petitioner does not dispute his ownership of the Allen’s Creek
note.
Prior to trial, petitioner agreed and stipulated that he
received and failed to roll over the distributed assets valued at
$96.83 and $2,471.23, representing the cash balance and the
OppenheimerFunds investment respectively. Petitioner disputes
the inclusion of the value of his Allen’s Creek note in income
and the imposition of the 10-percent additional tax.
Discussion
1. Tax Treatment on Distributions
Section 408(d)(1) provides that any amount paid or
distributed out of an IRA shall be included in gross income by
the distributee in the manner provided under section 72. Section
408(d)(3)(A) provides that section 408(d)(1) will not apply if
the entire amount received from an IRA distribution to the
individual for whose benefit the account is maintained is rolled
over into another IRA for the benefit of such individual no later
than 60 days after the receipt of the distribution.
3
Apparently petitioner also invested in another real
estate project with Mr. Butler. This investment was not an asset
of petitioner’s Sterling Trust IRA.
- 5 -
Under section 408(d)(3)(A), petitioner had until July 31,
2000, to effectuate a tax-free rollover of the entire amount he
received from the distribution of May 31, 2000. Even though
petitioner agrees that he received and failed to roll over the
cash balance and OppenheimerFunds investment, he asserts that he
did roll over the Allen’s Creek note, or at least that he
attempted to. He testified that he signed papers with Mr. Butler
authorizing a rollover into an IRA administered by Genesis.
Unfortunately, petitioner presented nothing other than his own
testimony, which is most unclear, that any rollover occurred on
or before July 31, 2000. As no IRA for petitioner’s benefit with
Genesis appears to exist, the 60-day exception to section
408(d)(1) cannot apply to this distribution.
Petitioner further alleges that his Allen’s Creek note was
misappropriated by Mr. Butler. An alleged misappropriation of
funds still does not qualify as a tax-free rollover, and there is
no exception or waiver of the 60-day rollover time period in
cases of fraud or embezzlement.4 Accordingly, as provided by
section 408(d)(1), the entire $4,921 of the May 31, 2000, IRA
distribution, which includes the Allen’s Creek note, is
includable in petitioner’s 2000 gross income under section 72.
4
Petitioner has not disputed the fair market value of
the Allen’s Creek note at the time of the distribution of the
note from the IRA. It would appear that if there was a theft,
the theft occurred after the distribution.
- 6 -
2. 10-Percent Additional Tax on Early Distributions
Section 72(t)(1) imposes an additional 10-percent tax on
that portion of a distribution from a qualified retirement plan
that is includable in the taxpayer’s gross income. The 10-
percent additional tax does not apply to certain distributions as
set forth in section 72(t)(2). Generally these exceptions
include distributions made on or after the date the employee
reaches the age of 59-1/2, sec. 72(t)(2)(A)(i), made to a
beneficiary on or after the death of the employee, sec.
72(t)(2)(A)(ii), and when attributable to a disability of the
employee, sec. 72(t)(2)(A)(iii).
Petitioner does not argue that any of the statutory
exceptions under section 72(t)(2) apply to his situation, and
indeed none of them do. Instead, he is seeking relief on the
grounds that because the distribution from his IRA did not cash-
out his Allen’s Creek investment he should not be subject to the
10-percent additional tax. He testified that he is having
financial problems, needs the immediate use of the money he
invested in the Allen’s Creek project, and that if he had
received this amount as a cash distribution he would not object
to paying the tax owed.
However unfortunate petitioner’s situation may be, there is
no exception under section 72(t) for financial hardship. This
principle has been applied consistently in cases dealing with
- 7 -
premature IRA distributions. See Arnold v. Commissioner, 111
T.C. 250, 255 (1998); Gallagher v. Commissioner, T.C. Memo. 2001-
34; Deal v. Commissioner, T.C. Memo. 1999-352; Pulliam v.
Commissioner, T.C. Memo. 1996-354. Furthermore, there is no
exception regarding in-kind distributions of IRA assets, and this
Court has repeatedly ruled that it is bound by the list of
statutory exceptions enumerated in section 72(t)(2). See, e.g.,
Arnold v. Commissioner, supra at 255; Schoof v. Commissioner, 110
T.C. 1, 11 (1998); Clark v. Commissioner, 101 T.C. 215, 224-225
(1993). As the legislative history of section 408(f), the
predecessor to section 72(t), explains, the purpose of the 10-
percent additional tax was to discourage early distributions from
retirement plans because “Premature distributions frustrate the
intention of saving for retirement”. S. Rept. 93-383, at 134
(1974), 1974-3 C.B. (Supp.) 80, 213. Petitioner is therefore
subject to the 10-percent additional tax under section 72(t) on
the entire amount of the IRA distribution.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.
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173 Ariz. 211 (1992)
841 P.2d 206
STATE of Arizona, Appellee,
v.
Ronald Arthur TOBER and Garth Stevens Black, Appellants.
No. CR-91-0375-PR.
Supreme Court of Arizona, En Banc.
November 3, 1992.
Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., Warren J. Granville, Asst. Atty. Gen., Phoenix, for State.
Gallagher & Kennedy, P.A. by Leslie T. Jones, Jr., Phoenix, for appellant Tober.
Jones, Skelton & Hochuli by A. Melvin McDonald, Jr., Phoenix, for appellant Black.
Joseph C. Long, Norman, Okl., for amicus curiae North American Securities Administrators Ass'n, Inc.
OPINION
MARTONE, Justice.
We are asked to decide whether A.R.S. § 44-1841, prohibiting the sale of unregistered securities, and A.R.S. § 44-1842, prohibiting transactions in securities by unregistered dealers and sellers, are vague under the due process clause of the Fourteenth Amendment. We hold that they are not.
PROCEEDINGS
Tober and Black were indicted for the sale of unregistered securities under A.R.S. § 44-1841 and transactions in securities by unregistered dealers and sellers under A.R.S. § 44-1842. Arguing that courts are hopelessly divided over when a note is a security, they moved to quash the indictment on grounds of vagueness. The state responded that however divided the federal courts are on the question of when a note is a security, Arizona's statutory scheme was quite clear and no exemption applied. The trial court denied the motion. Later, in denying a motion in limine to exclude expert testimony on what is a security, the court concluded that whether the notes were securities was a question of fact for the jury. Reporter's transcript of proceedings, Sept. 22, 1988, at 3.
*212 The case went to the jury on an instruction drawn from the "risk capital" test of Amfac Mtg. Corp. v. Arizona Mall of Tempe, 583 F.2d 426, 432 (9th Cir.1978).[1] The state, Tober, and Black agreed upon the instruction. Reporter's transcript of proceedings, Oct. 25, 1988, at 154-58. Tober and Black were convicted.
Holding that a fact-specific test for determining when a note is a security is too uncertain to provide sufficient notice of criminal responsibility, the court of appeals reversed. State v. Tober, 170 Ariz. 573, 826 P.2d 1199 (App. 1991). Because the court of appeals passed unfavorably on the constitutionality of an Arizona statute, we granted the state's petition for review.
FACTS
Black wanted to raise some capital to finance a real estate development in Utah. He created limited partnerships with a corporate general partner. Black prepared promissory notes to be issued by the corporate general partner in return for the invested funds. The note granted an option to convert it to shares in the limited partnerships. Black did not register the notes with the Arizona Corporation Commission under A.R.S. §§ 44-1871 to -1875 or under A.R.S. §§ 44-1891 to -1900. Instead, he contacted Tober, who conducted his own investment and tax counseling business, and enlisted him to sell the notes to his clients. Tober was to receive a commission for the sale of each note. Neither Black nor Tober were registered as dealers or sellers under A.R.S. §§ 44-1941 to -1949. Because Black was never able to get institutional financing, the venture failed and the corporate general partner defaulted on the notes.
ANALYSIS
Tober, Black, and the state tried this case under the "risk capital" test articulated in Amfac. Both sides agreed that not all promissory notes are securities. The jury was instructed to use the Amfac test to distinguish a promissory note which is not a security from a promissory note which is a security. Tober's and Black's vagueness argument is premised upon the assumption that the Amfac test, or some variant of it, is applicable to charges under A.R.S. § 44-1841 and § 44-1842.
Assuming Tober's and Black's premise was correct, the court of appeals agreed that the statutes were vague. It reasoned as follows. "Security" as used in A.R.S. § 44-1841 and § 44-1842 is defined under A.R.S. § 44-1801(20)[2] to mean, among other things, "any note." Because not every note under Amfac is a security, and because a defendant would not know in advance whether the jury's application of the Amfac test would result in a finding that a note is a security, the court held that the statutory definition of security as "any note" is unconstitutionally vague.
We disagree. In our view, neither the "risk capital" test of Amfac, the "family resemblance" test of Reves v. Ernst & Young, 494 U.S. 56, 64-67, 110 S.Ct. 945, 950-52, 108 L.Ed.2d 47, 59-61 (1990)[3], nor *213 any variant applies to charges under A.R.S. § 44-1841 and § 44-1842. These two sections are part of a comprehensive statutory scheme that defines the universe of securities, exempt securities, and exempt transactions. The statutory scheme leaves no room for judicial gloss, and thus there is no uncertainty in its application. The vagueness challenge simply evaporates.
We begin with the relevant statutes. A.R.S. § 44-1841(A) prohibits the sale of securities unless they have been registered, except securities exempt under § 44-1843 or § 44-1843.01, or securities sold in exempt transactions under § 44-1844. A.R.S. § 44-1842 prohibits the sale of securities by unregistered dealers or sellers.
A.R.S. § 44-1801(22) defines "security" to mean, among other things, "any note."[4] It is at this point that the parties and the court of appeals concluded their statutory analysis. They put flesh on the language "any note" by reference to judicial tests created by the federal courts in the context of actions for fraud in connection with the sale of securities.[5] We turn, instead, to the next section of the statute. Under A.R.S. § 44-1843, "[t]he provisions of §§ 44-1841 and 44-1842 do not apply to any of the following classes of securities." Among them are notes secured by mortgages or deeds of trust on real estate or chattels, A.R.S. § 44-1843(10), and some commercial paper, A.R.S. § 44-1843(8). Thus, notes given in connection with the ordinary purchase of a house or automobile are exempt. So is the issuance of some commercial paper. Similarly, A.R.S. § 44-1844 provides that "[t]he provisions of §§ 44-1841 and 44-1842 do not apply to any of the following classes of transactions." Among the many exempt transactions are those that do not involve any public offering. A.R.S. § 44-1844(1). Thus, all consumer transactions involving the purchase of real property or goods are exempt where the buyer pays by giving a promissory note.
We do not need the Amfac test, the Reves test, or any variant to tell us when a note is not a security for purposes of A.R.S. § 44-1841 and § 44-1842, because A.R.S. § 44-1843, § 44-1843.01 and § 44-1844 describe quite precisely exempt notes and exempt transactions in notes. The vice of vagueness which the court of appeals thought infected the Amfac and Reves tests is simply not present in the statutory scheme for registration.
We are not unmindful that federal security regulation resembles the Arizona statutory scheme. Arizona law, like federal law, defines "security" to include "any note." Compare 15 U.S.C. § 77b(1) with A.R.S. § 44-1801(22). Similarly, both Arizona and federal law provide for "exempt securities" and "exempt transactions." Compare A.R.S. § 44-1843 (exempt securities) and A.R.S. § 44-1844 (exempt transactions) with 15 U.S.C. § 77c (exempted securities) and 15 U.S.C. § 77d (exempted transactions). But the federal tests (Amfac and Reves) evolved in the context of civil actions for fraud in connection with the sale of securities under 15 U.S.C. §§ 77q and 78j, where the registration exemptions are inapplicable. See 15 U.S.C. § 77q(c) (making the exemption provisions of § 77c expressly inapplicable) and 15 U.S.C. § 78j (failing to exclude from its applicability "exempted securities," in contrast with §§ 78l and 78o, the provisions of the 1934 Act requiring registration of securities, brokers and dealers). Without the Reves test one is left literally with the words "any note." This is simply not the *214 case under federal and state registration provisions. We are not willing to mix and merge fraud with registration and ignore the plainly separate treatment accorded these concepts under both federal and state statutes.[6]
An unconstitutionally vague statute is one that requires a person to guess at its meaning. In re Pima Cty.Juv.App. No. 74802-2, 164 Ariz. 25, 28, 790 P.2d 723, 726 (1990). Tober and Black did not have to guess here. A.R.S. § 44-1843 and § 44-1843.01 advised them that their notes were not exempt. A.R.S. § 44-1844 advised them that their transaction was not exempt. Thus A.R.S. § 44-1841 advised them to register the notes before they sold them and A.R.S. § 44-1842 advised them to register themselves.
DISPOSITION
Tober and Black were tried on a theory more favorable to them than the Arizona statutory scheme. They were found guilty. The defendants never contended that a statutory exemption existed in this case. Transcript of proceedings, Sept. 15, 1988 at 38. Because Tober and Black were not prejudiced, they are not entitled to a new trial.
The vagueness issue was but one of many issues raised on appeal. The court of appeals did not reach the others. Because we reverse the court of appeals on the vagueness issue and hold that the vagueness theory affords no basis to upset the convictions, we vacate the opinion of the court of appeals and remand to that court to consider the other issues raised on appeal.
FELDMAN, C.J., MOELLER, V.C.J., and CORCORAN and ZLAKET, JJ., concur.
NOTES
[1] Under Amfac, whether a note is a security under that portion of the federal securities law relating to fraud is determined by the application of a "risk capital" test, involving an analysis of time, collateralization, form of obligation, circumstances of issuance, relationship between the amount borrowed and the size of the borrower's business, and the contemplated use of the funds.
[2] Now A.R.S. § 44-1801(22).
[3] Reves rejected the Amfac "risk capital" test and adopted the "family resemblance" test, under which any note is presumed to be a security. The presumption may be rebutted by showing that the note bears a strong resemblance to categories of notes which are not securities, applying a four factor test: (1) motivations of seller and buyer; (2) plan of distribution; (3) reasonable expectations of investing public; and (4) the existence of another risk reducing regulatory scheme. The list of non-security notes includes consumer financing notes, notes secured by a home mortgage, notes secured by a lien on a business or its assets, notes reflecting a loan to a bank customer, short term notes secured by an assignment of accounts receivable, and notes which formalize a debt on an open-account in a business.
As the amicus North American Securities Administrators Association points out, the Tober-Black notes are securities under the Reves test, just as they are under the relevant Arizona statutes.
[4] Compare the definition here of a security as any note with the definition of a note under Article 3 of the Uniform Commercial Code, A.R.S. § 47-3104, and the definition of a security under Article 8 of the Uniform Commercial Code, A.R.S. § 47-8102(A).
[5] It is understandable, but ironic, that the parties used a test developed by the federal courts in connection with the civil claim of fraud in connection with the sale of securities. See Amfac, 583 F.2d at 428 n. 1. Like its federal counterpart, Arizona's provision dealing with fraud in the purchase or sale of a security, A.R.S. § 44-1991, expressly includes securities exempted under § 44-1843 or 44-1843.01, and transactions exempted under § 44-1844. Reference to Arizona's fraud provision would have alerted the parties to the express exemption provisions applicable to registration. The issue of whether the Reves test, or something like it, is applicable to A.R.S. § 44-1991 is not presented by this case.
[6] But see Securities and Exchange Commission v. R.G. Reynolds Enterprises, Inc., 952 F.2d 1125 (9th Cir.1991).
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NUMBER 13-08-00428-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SEFERINO HERRERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Justice Yañez
After a trial on the merits, a jury found appellant, Seferino Herrera, guilty of the
offense of sexual assault. (1) Appellant was sentenced to thirteen years' confinement. We
affirm.
I. Anders Brief
Pursuant to Anders v. California, (2) appellant's court-appointed appellate counsel has
filed a brief with this Court stating that, after examining the record, he has concluded that
"there are no points of error which could arguably support a meritorious appeal in the
instant cause." After discussing the legal sufficiency of the evidence, the trial court's ruling
pursuant to rule 412 of the Texas Rules of Evidence, (3) and the denial of appellant's
requested jury instruction, counsel concludes that each of these arguable issues lack merit.
Counsel's brief meets the requirements of Anders as it presents a professional evaluation
showing why there are no non-frivolous grounds for advancing on appeal. (4)
In compliance with High v. State, (5) appellant's counsel has carefully discussed why,
under controlling authority, there are no errors in the trial court's judgment. Counsel has
informed this Court that he has: (1) forwarded a copy of the brief and his request to
withdraw as counsel to appellant; (2) examined the record and found no arguable grounds
to advance on appeal; and (3) informed appellant of his right to review the record and to
file a pro se response. (6) More than an adequate period of time has passed, and appellant
has not filed a pro se response. (7)
II. Independent Review
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. (8) We have reviewed the
entire record and counsel's brief and have found nothing that would arguably support an
appeal. (9) Accordingly, we affirm the judgment of the trial court.
III. Motion to Withdraw
In accordance with Anders, appellant's attorney has asked this Court for permission
to withdraw as counsel for appellant. (10) We grant counsel's motion to withdraw.
Within five days of the date of this Court's opinion, counsel is ordered to send a
copy of the opinion and judgment to appellant and to advise appellant of his right to file a
petition for discretionary review. (11)
Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the
19th day of August, 2010.
1. See Tex. Penal Code Ann. § 22.011(a)(1) (Vernon Supp. 2009).
2. 386 U.S. 738, 744 (1967).
3. See Tex. R. Evid. 412.
4. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief
need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record
references to the facts and procedural history and set out pertinent legal authorities.") (citing Hawkins v. State,
112 S.W.3d 340, 343-44 (Tex. App.-Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510
n.3 (Tex. Crim. App. 1991).
5. High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).
6. See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d
at 409 n.23. The Texas Court of Criminal Appeals has held that "the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues." In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955
S.W.2d 693, 696-97 (Tex. App.-Waco 1997, no pet.)).
7. See In re Schulman, 252 S.W.3d at 409.
8. Penson v. Ohio, 488 U.S. 75, 80 (1988).
9. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders
briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record
for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate
Procedure 47.1."); Stafford, 813 S.W.2d at 509.
10. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v.
State, 903 S.W.2d 776, 779-80 (Tex. App.-Dallas 1995, no pet.) (noting that "[i]f an attorney believes the
appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the
appeal is frivolous") (citations omitted)).
11. See Tex. R. App. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206
S.W.3d 670, 673 (Tex. Crim. App. 2006). No substitute counsel will be appointed. Should appellant wish to
seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to
file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion
for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review
must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See Tex.
R. App. P. 68.3; 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4
of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.
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427 F.3d 558
UNITED STATES of America, Appellee,v.Ronald Dean MEYER, Appellant.
No. 04-4166.
United States Court of Appeals, Eighth Circuit.
Submitted: September 21, 2005.
Filed: October 31, 2005.
Richard O. McConville, West Des Moines, Iowa, for appellant.
Sean R. Berry, Assistant U.S. Attorney, of Cedar Rapids, Iowa, for appellee.
Before MURPHY, HEANEY, and MELLOY, Circuit Judges.
HEANEY, Circuit Judge.
1
Ronald Dean Meyer pled guilty in district court to one count of possession of child pornography. He was sentenced to 33 months of imprisonment, to be followed by six years of supervised release, and a $7,500 fine. He appeals his sentence and fine, arguing the district court erred by imposing them based on its mistaken belief that the guidelines were mandatory. We agree that the district court erred in treating the guidelines as mandatory, but the error was largely rendered harmless by the court's imposition of an alternative, discretionary sentence of 33 months. Because the court did not impose an identical alternative sentence with respect to the fine, however, that portion of the sentence must be remanded for resentencing.
BACKGROUND
2
Following a sting operation, Meyer was indicted on child pornography-related charges. Pursuant to a plea agreement, he pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). After Meyer pled guilty but prior to his sentencing proceeding, the Supreme Court issued its opinion in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Meyer subsequently objected to the district court's imposition of any guidelines enhancements not admitted or proven to a jury. By the time of Meyer's sentencing, the Supreme Court had granted certiorari in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but had not yet rendered a decision. Presumably due to the uncertainty surrounding the constitutionality of the guidelines, the district court issued alternative sentences. Under the mandatory guidelines, the district court found that Meyer had a sentencing range of 33-41 months, and a guidelines fine range of $7,500 to $75,000. It imposed a 33-month sentence and a $7,500 fine. The district court then pronounced its alternative sentence as follows:
3
If hereafter the United States sentencing guidelines are found to be unconstitutional as a whole or in relation to the Court's application of the sentencing guidelines in this case, the Court, without further hearing or order and in its discretion, hereby imposes a sentence of 33 months' imprisonment . . . after considering all the factors set out in 18 United States Code Section 3553(a), (1) through (7).
4
(Sentencing Tr. at 45.) The district court's written judgment used essentially the same language with respect to the alternative sentence, but stated that it would impose the same 33-month sentence "with all other sentence findings remaining unchanged." (J. at 2.) This appeal followed.
ANALYSIS
5
Meyer correctly asserts that the district court committed Booker error by imposing a sentence based on its belief that the guidelines were mandatory. United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc). We must determine whether the error is harmless. Since the error involved enhancements to Meyer's sentencing range based on facts not admitted nor proven to a jury, it is an error of "constitutional magnitude," such that the government bears the burden of proving that the error is harmless beyond a reasonable doubt. United States v. Mendoza-Mesa, 421 F.3d 671, 673 (8th Cir.2005). The government can meet its harmless error burden where the sentencing court states "that an alternate sentence based on the court's discretion would be identical to the sentence actually imposed." United States v. Engler, 422 F.3d 692, 696 (8th Cir.2005).
6
The district court's imposition of an identical 33-month discretionary sentence renders any Booker error related to the incarceration portion of its sentence harmless. The same cannot be said for the portion of the sentence relating to the fine. The district court arrived at the fine amount based on the guidelines, which mandated a fine ranging from $7,500 to $75,000 for Meyer. USSG § 5E1.2(a) (requiring a fine unless the defendant establishes he is unable to pay); § 5E1.2(c)(3) (setting fine ranges based on the defendant's offense level). Just as it is error to impose a prison term based on the mistaken view that the guidelines mandate it, it is also a Booker error to impose a fine on the same basis. Cf. United States v. Huber, 404 F.3d 1047, 1063 (8th Cir.2005) (recognizing that, in the wake of Booker, district courts may deviate from the guidelines range in imposing a fine); accord Crooker v. United States, 325 F.2d 318, 321 (8th Cir.1963) (defining a fine as "a matter of punishment").
7
The government argues the Booker error in using the guidelines to impose a $7,500 fine is cured by the alternative sentence. Based on the record before us and the government's burden of proving the error is harmless beyond a reasonable doubt, we cannot agree. The district court's oral pronouncement of judgment contains no reference whatsoever to the fine as a part of the alternative sentence. The court's written judgment merely states that the alternative sentence is "a sentence of 33 months imprisonment with all other sentencing findings remaining unchanged." (J. at 2.) It requires too much speculation for this court to find that "sentencing findings" referred to the imposition of a fine. Indeed, it is far more likely that the court's reference to "sentencing findings" referred to factual determinations made by the district court in support of its sentence. See Fed.R.Crim.P. 32(i)(3) (stating that it is the sentencing court's responsibility to rule on disputed matters contained in the presentence report, but that the court may accept any undisputed matter "as a finding of fact" (emphasis added)). Courts do not "find" the sentence; they impose it. Moreover, the court specifically repeated the other portion of the sentence (33 months), suggesting that the court itself was not treating the punishment as part of her "findings." In short, we are not satisfied that the alternative sentence rendered the district court's Booker error harmless beyond a reasonable doubt with respect to the fine imposed. Thus, we have no alternative but to direct a limited remand for resentencing with respect to the imposition of a fine.
8
Meyer further argues that the district court's alternative sentence cannot stand because the court failed to truly consider the 18 U.S.C. § 3553(a) factors, particularly those dealing with his characteristics and history, § 3553(a)(1), and with the kinds of sentences available, § 3553(a)(3). Our review of the record does not support Meyer's contention. Much of the sentencing hearing was devoted to evidence about Meyer's business and family ties, and the court had before it many letters in support of Meyer, as well as the results of psychological testing to which Meyer submitted. Meyer focuses on an exchange in which he was talking about his life, and the district court noted that while Meyer may have led a good life, the court was concerned with his criminal conduct. He claims this is evidence that the court only considered his crime, not the totality of his characteristics and life circumstances. A review of the sentencing transcript leads to a different conclusion. The conversation Meyer refers to dealt with the court's belief that Meyer was minimizing his conduct. When asked to account for this, Meyer described to the court how he had led a good life. The court's response was an indication to Meyer that at that time in the hearing the court wanted him to address whether he took responsibility for his crime. While the court's attention may have been focused on Meyer's acceptance of responsibility at this point in the hearing, we find no indication in the record that the court ignored Meyer's history and characteristics. Accordingly, we find no merit to Meyer's contention that we should remand for resentencing on the basis that the court did not adequately tailor his alternative sentence to the § 3553(a) factors.
CONCLUSION
9
In this criminal case, Meyer appeals his sentence, arguing that the district court imposed it in violation of Booker. Whatever error attached to the district court's use of the guidelines as mandatory was largely cured by its imposition of an alternative sentence of an identical 33-month prison term. Because the alternative sentence did not specify that the fine would be the same under both the guidelines sentence and the discretionary sentence, we direct a limited remand for imposition of a fine consistent with Booker.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 23 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN GRESCHNER,
Plaintiff-Appellant,
v. No. 03-1193
(D.C. No. 00-RB-167 (BNB))
UNITED STATES OF AMERICA, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
John Greschner, proceeding pro se, appeals from the district court’s
judgment in favor of defendant, after trial to the court, on claims of negligence
brought pursuant to the Federal Tort Claims Act. He also requests appellate
counsel. We have jurisdiction over this appeal under 28 U.S.C. § 1291.
Appellant challenges the court’s findings of fact, which we review for clear error,
Anderson v. City of Bessemer City , 470 U.S. 564, 573 (1985), brings various legal
arguments, which we review de novo, Elder v. Holloway , 510 U.S. 510, 516
(1994), and objects to the court’s evidentiary rulings, which we review for abuse
of discretion, Faulkner v. Super Valu Stores, Inc. , 3 F.3d 1419, 1433 (10th Cir.
1993). We construe appellant’s pro se pleadings liberally, as required by Haines
v. Kerner , 404 U.S. 519, 520 (1972).
After our review of the record on appeal and the parties’ briefs in light of
these standards and applicable law, we are convinced that the district court
neither abused its discretion nor erred in its rulings and that its findings of fact
are not clearly erroneous. We particularly note the court’s credibility
determination in favor of defendant , which appellant does not challenge on
-2-
appeal. See Anderson, 470 U.S. at 575. The judgment of the district court is
AFFIRMED; appellant’s motion for appointment of counsel is DENIED.
Appellant is reminded of his obligation under 28 U.S.C. § 1915 to continue
making monthly payments until his entire appellate filing fee is paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
-3-
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635 N.E.2d 194 (1994)
FARMERS LOAN & TRUST CO., Appellant-Plaintiff below,
v.
Robert A. LETSINGER, Hulda Anne Letsinger, Farmers Home Administration, and Summit Bank of Clinton County, Appellees-Defendants below.
No. 12A02-9211-CV-535.
Court of Appeals of Indiana, Third District.
June 8, 1994.
*195 Thomas J. Trauring, Robert M. Squier, Jr., Fell, McGarvey, Trauring & Wilson, Kokomo, for appellant.
R.C. Richmond, III, Sommer & Barnard, P.C., Indianapolis, for appellee.
STATON, Judge.
Farmers Loan & Trust Co. ("Bank") appeals from a judgment denying its recovery on promissory notes guaranteed by Robert and Hulda Anne Letsinger ("Robert" and "Anne", collectively "Letsingers") after the primary obligor on the notes declared bankruptcy. The Bank presents three issues for our review, which we restate as follows:
I. Whether the trial court erred in determining that the Letsingers were accommodation parties.
II. Whether the trial court erred in finding that the Letsingers' signatures on certain promissory notes did not waive their suretyship defenses.
III. Whether the Letsingers' execution of a separate guaranty subjected them to unlimited liability for the corporation's debts.
The facts most favorable to the judgment reveal that Robert and Anne, along with their two daughters and a son-in-law, were the sole shareholders in a corporation known as T-C Crop Care, Inc. ["T-C"]. The corporation engaged in the fertilizer business. On November 21, 1982, the Bank loaned T-C Crop Care $32,998.39. A promissory note reflecting the loan was executed at that time, *196 which note gave the Bank a security interest in all of T-C's plant, buildings, fixtures and equipment, as well as all additions, accessions, accessories, and replacements thereto. The note also granted the Bank a first lien and security interest in T-C's accounts receivable and inventory then owned or thereafter acquired and all products and proceeds thereof. The promissory note was signed by the Letsingers in their capacities as officers of T-C, and also in their individual capacity. On December 31, 1982, the Letsingers executed a separate guaranty on the loan, and later gave the bank mortgages on two houses as additional security for their guaranty.
Over the next several years, additional Bank notes were executed on several occasions. These notes indicated T-C as borrower and were signed by Robert in his capacity as vice president or by Lynn Humberg, T-C's secretary. In early 1985, T-C granted a second lien and security interest in the same corporate property and assets to Erny's Fertilizer Service, Inc. ("Erny's"), which lien was duly perfected. Although this lien was originally subordinate to the lien held by the Bank, it gained priority after the Bank's security interest expired in 1988 because the Bank failed to re-file a financing statement or to file a continuation statement.
In February 1989, after the Bank's priority lapsed, the Letsingers executed several renewal notes and a new guaranty for T-C's debt to the Bank. Although the Bank was aware of the lapsed security interest, the Bank did not inform the Letsingers that the collateral had been impaired. The new promissory notes contained a waiver of defenses which purported to prevent the Letsingers from utilizing the defense that the Bank's actions impaired the original security for the loan.
On March 31, 1989, T-C filed for bankruptcy. The bankruptcy court ordered T-C to liquidate assets to pay its creditors, the majority of which proceeds went to Erny's based on its first priority security interest. The Bank received a total of $34,163.19 in proceeds and accounts from T-C in satisfaction of the promissory notes. The Bank initiated this action to recover a deficiency of $115,554.41 from the Letsingers.
I.
Status as Accommodation Parties
The Bank challenges the trial court's determination of the Letsingers' status as accommodation parties on two bases. First, the Bank asserts that the trial court incorrectly applied the law to determine accommodation status. Second, assuming that the trial court correctly applied the law, the Bank argues that the evidence does not support the determination in Letsingers' favor.
Indiana law defines an accommodation party as "one who signs the instrument in any capacity for the purpose of lending his name to another party to it." IND. CODE 26-1-3-415(1) (1988). Whether a co-maker is an accommodation party on a promissory note is a question of fact. Williams v. Lafayette Production Credit Ass'n (1987), Ind. App., 508 N.E.2d 579, 582. In making this factual determination, the reason the party signed the instrument is controlling. Id. Moreover, the entire series of transactions between the parties, viewed as a whole, may be examined by the fact finder in order to determine accommodation status. Stockwell v. Bloomfield State Bank (1977), 174 Ind. App. 307, 310, 367 N.E.2d 42, 45 (overruled in part on other grounds, Farner v. Farner (1985), Ind. App., 480 N.E.2d 251).
The Bank challenges the trial court's application of the above legal standard, alleging that the court failed to consider the reason the Letsingers signed the notes. Instead, the Bank argues that the court erroneously limited its consideration to only one factor, whether the Letsingers directly benefitted from the transaction, in reaching the conclusion that the Letsingers were accommodation parties.
An examination of the trial court's findings reveals otherwise. The findings reveal that although the trial court did consider whether the Letsingers directly benefitted from the transaction, this was only one of the factors considered. Additional factors listed by the court include: 1) prior to 1989, subsequent renewal notes were executed by Robert only in his capacity as vice president of T-C; 2) *197 Anne was not required or even requested to sign any renewal notes prior to 1989; 3) only T-C was listed as borrower on renewal notes; 4) in 1989, upon execution of additional renewal notes, the Letsingers were instructed to sign a new guaranty; and 5) the Bank's file summary sheet, generated after the Letsingers executed additional renewal notes in 1989, listed T-C as the primary borrower and the Letsingers as co-signers. These findings support the conclusion that the trial court properly considered the relevant attendant circumstances in reaching the determination that the Letsingers acted as accommodation parties. We find no error here.
The Bank also challenges the trial court's determination of the Letsingers' status as unsupported by the evidence. Because the trial court entered factual findings pursuant to Indiana Trial Rule 52(A), we examine the Bank's evidentiary challenge under a limited standard of review. We cannot set aside the findings or judgment of the trial court unless clearly erroneous. Ind.Trial Rule 52(A). Findings of fact are clearly erroneous when the record lacks any facts or reasonable inferences to support them. Vandenburgh County Board of Commissioners v. Rittenhouse (1991), Ind. App., 575 N.E.2d 663, 665, tr. denied. When determining whether the findings or judgment are clearly erroneous, we consider only the evidence most favorable to the judgment and the reasonable inferences flowing from that evidence. Id. We will not judge credibility or reweigh the evidence. Id.
The Bank challenges the following specific finding entered by the trial court:
11. In or about late February 1989, the Notes were executed to renew the Loans. Robert executed the Notes on behalf of T-C as vice-president. Letsingers were also instructed to sign the Notes and did sign the Notes individually. The Notes, which were prepared by the Bank, show the "borrower" as T-C, not Letsingers. The Notes were renewal notes; no additional funds were loaned, and Letsingers did not receive any proceeds from the Loans evidenced by the Notes. Thus, T-C received the direct benefit of the renewal, while any benefit to Letsingers as shareholders was indirect. Contemporaneously with their execution of the Notes, Letsingers were also instructed to sign and did sign a new guarantee [sic]. A "File Summary Sheet" generated by the Bank after the Notes were executed shows T-C as the "Primary Borrower" and Letsingers as "Co-Signers." Based on these factors, the Court finds that Letsingers signed the Notes as accommodation parties, i.e. to lend their names to another party to the Notes, namely, T-C.
Record, p. 530.
Our examination of the record reveals that this finding is amply supported by the evidence. At trial, the notes executed with the Bank listed as borrower and Letsingers listed as guarantors were admitted into evidence, as were the additional guaranties executed by the Letsingers in 1982 and 1989. The Bank's file summary sheet, again listing T-C as borrower and the Letsingers as co-signers, was also admitted into evidence. Testimony of both Robert and Anne revealed that they did not receive any direct proceeds from the loan, nor did T-C receive additional funds from execution of the renewal notes. Although the Bank requests that we do so, our standard of review does not permit us to reweigh the credibility of this evidence or the inferences to be drawn therefrom. This evidence sufficiently supports the trial court's findings and judgment.
II.
Promissory Notes
Once a party is determined to be an accommodation party as defined in I.C. XX-X-X-XXX(1), that party is considered a surety, and is entitled to the defenses provided in IND. CODE 26-1-3-606 (1988).[1] Relevant to this appeal is the impairment of collateral defense, which provides:
*198 (1) The holder discharges any party to the instrument to the extent that without such party's consent the holder
* * * * * *
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.
I.C. XX-X-X-XXX(1)(b).
The Bank's failure to file continuation statements relegated its security interest in T-C's assets to second priority behind Erny's perfected security interest, thus unjustifiably impairing the Bank's collateral. White v. Household Finance Corp. (1973), 158 Ind. App. 394, 403-404, 302 N.E.2d 828, 835. The Bank argues, however, that the Letsingers waived this defense by signing promissory notes containing a consent to release of collateral provision in both 1982 and 1989. This argument relies on this court's decision in Carney v. Central National Bank of Greencastle (1983), Ind. App., 450 N.E.2d 1034, tr. denied, in which we stated that "`an express statement of consent incorporated in the instrument is effective against the surety.'" Id. at 1037 (quoting WHITE AND SUMMERS, UNIFORM COMMERCIAL CODE § 13-15, at 527.) The Bank's standard form promissory note contained the following express statement of consent:
Obligations Independent I understand that my obligation to pay this note is independent of the obligation of any other person who has also agreed to pay it. You may release any of us, release any security, waive any right you might have against any of us, extend new credit to any of us, renew this note, or all of the above, without affecting my obligation to pay the loan amount.
Record, p. 579 [emphasis added]. The record indicates that when T-C obtained its first loan in November of 1982, the Letsingers signed a promissory note in their individual capacities containing identical language.
The Bank now argues that this provision allowed it to release or impair the security for all subsequent loan transactions between the parties, including the Letsingers individually. This would effectively waive the impairment of collateral defense altogether. Although this argument might have merit if the note at issue had been renewed in each subsequent transaction, the record contains no evidence of its renewal. It was executed by the Letsingers on November 21, 1982 and matured on February 24, 1983. By its own terms, the note had to be paid at maturity unless it was renewed by a subsequent transaction. The Bank's trial exhibits do not indicate renewal of any loan transaction between the parties until June 29, 1983, several months after the first note matured and after the initiation of several additional loans. This evidence supports the inference that the November 1982 note was paid upon maturity. Accordingly, its waiver provision could not remain in binding effect for later loan transactions.[2]
The Bank's only remaining argument that the Letsingers were bound by a consent to impairment provision in the promissory notes depends on those which they signed in their individual capacity on February 13, 1989, after the impairment of collateral occurred. In this regard, the trial court concluded:
Letsingers did not consent to the Bank's impairment of collateral by signing the [1989] Notes. The language on which the Bank relies contemplates consent to a future act or omission by the Bank and, at the time Letsingers signed the Notes and other documents, the Bank had already impaired the collateral. A surety is a favorite in the law, and as such is entitled to a strict construction of the contract in his favor and to have any ambiguity in the contract construed against the party who employed the language and prepared the contract. Furthermore, Letsingers could not have validly consented to the Bank's prior impairment of the collateral because any such consent was not given by the *199 Letsingers with full knowledge of the facts. [Citations omitted.]
Record, p. 535.
The Bank does not challenge the legal bases for this conclusion, rather it argues that in reaching it, the court did not consider all of the transactions between the parties. Had the court done so it would have applied the consent provision in the 1982 promissory note and rejected the Letsingers' reliance on the impairment of collateral defense. Our determination that the 1982 promissory note did not bind subsequent loans renders this argument meritless. The evidence presented at trial amply supports the conclusion that the Bank failed to obtain a valid consent to impairment. As a result, the trial court properly applied I.C. XX-X-X-XXX(1)(b) to defeat the Bank's claim.
III.
Separately Executed Guaranty
In its findings, the trial court acknowledged that the Letsingers executed a separate guaranty on T-C's behalf on December 31, 1982. The terms of that guaranty provided that the Letsingers assumed personal liability for T-C's present and future financial obligations to the Bank, but did not contain a provision consenting to the Bank's impairment of collateral. The Bank now contends that the separate guaranty creates unlimited personal liability for the Letsingers, and that the impairment of collateral defense does not release them from liability because I.C. XX-X-X-XXX(1)(b) only applies to negotiable instruments, and not to guaranties.
While it is true that I.C. XX-X-X-XXX only applies to negotiable instruments, it does not follow that the impairment of collateral defense is limited to use under this section. In fact, I.C. XX-X-X-XXX is the codification of suretyship principles[3] in the specific context of negotiable instruments. Such codification does not supplant otherwise applicable common law principles of suretyship.[4]
This court has previously analogized the suretyship principles outlined in the Indiana Uniform Commercial Code when addressing a guarantor's liability under a separately executed guaranty. In Carney, supra, this court addressed the enforceability of a consent to impairment of collateral clause in a guaranty document. Id. at 1036, In so doing, this court equated a guarantor to a surety under IND. CODE 26-1-1-201(40), and went on to reiterate the general rule that a surety is released when the creditor impairs the collateral without the surety's consent. The court concluded in light of these principles that a consent to impairment provision incorporated in the separate guaranty operated as a valid waiver of the guarantor's impairment defense. Id. at 1036-1037.
We find Carney instructive on the applicability of the impairment of collateral defense to non-negotiable instruments such as a guaranty contract, and conclude that the trial court properly utilized the defense to release the Letsingers from liability in this case. We recognize that in so doing we are declining to follow decisions from a small number of jurisdictions which hold that a continuing guarantor cannot rely on the impairment of collateral defense.[5] We believe *200 that by allowing a guarantor to avail himself of the suretyship defenses, we reinforce the guarantor's traditional position as a favorite in the law. Goeke v. Merchants Nat'l Bank and Trust Co. (1984), Ind. App., 467 N.E.2d 760, 769, tr. denied. This interpretation does not unreasonably infringe on the rights of creditors, because a creditor may protect himself from a guarantor's impairment of collateral claim by adding a consent to impairment provision to the guaranty similar to the one upheld in Carney, supra.
In the instant case, the Bank did not include a consent to impairment provision in the guaranty personally executed by the Letsingers. As a result, the Letsingers could properly claim that the Bank's failure to maintain its security interest in T-C's collateral unjustifiably impaired the collateral and released the Letsingers from their obligation on the guaranty. Accordingly, we find no error in the trial court's judgment.
Affirmed.
GARRARD and SULLIVAN, JJ., concur.
NOTES
[1] IND. CODE 26-1-3 et seq. was repealed in its entirety by P.L. 222-1993, Sec. 58, effective July 1, 1994. Its provisions remain in effect for purposes of this appeal.
[2] T-C Crop Care obtained numerous loans from the Bank during the relevant time period. However, prior to the Bank's impairment of collateral, the Letsingers only signed in their individual capacity on the November 21, 1982 loan. Thus it is only from the November 21, 1982 transaction that the Letsingers could have been individually bound by the consent to impairment provision that was standard in all of the promissory notes.
[3] The relevant suretyship principle has been applied to guaranties as follows:
The general rule is that the surrender or release of any security held by a guarantee [sic] against the indebtedness guaranteed, or any impairment, misapplication, or improper dealing therewith by him, discharges the guarantor to the extent to which he is injured thereby... .
38 C.J.S. Guaranty § 81, at 1250 (1943). See also Kansas State Bank and Trust Co. v. DeLorean (1982), 7 Kan. App. 2d 246, 640 P.2d 343, 351 (common law impairment of collateral defense discharges a guarantor who is otherwise liable under a continuing guaranty agreement, even though the guaranty is not a negotiable instrument covered by the U.C.C.)
[4] IND. CODE 26-1-1-103 (Supp. 1992) provides that unless the common law was expressly displaced by a particular provision of the Code, it remains in full force and effect.
[5] See, e.g., Union Planters National Bank of Memphis v. Markowitz (1979), W.D.Tenn., 468 F. Supp. 529, 535; First City Bank v. Air Capital Aircraft Sales (1987), 10th Cir., 820 F.2d 1127, 1135. The Bank cites additional cases in support of its argument, including City National Bank of Murphysboro v. Reiman (1992), 236 Ill. App.3d 1080, 175 Ill.Dec. 919, 601 N.E.2d 316 and Ishak v. Elgin National Bank (1977), 48 Ill. App.3d 614, 6 Ill.Dec. 630, 363 N.E.2d 159. However, these cases are inapplicable to the case at bar in that they limit their examination to the impairment of collateral defense codified in each state's U.C.C, and do not address its common law counterpart at all.
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6 Cal.App.2d 205 (1935)
ESTHER CRONIN, Respondent,
v.
JOHN P. COYLE, as Receiver, etc., et al., Defendants; THE MERCER CASUALTY COMPANY (a Corporation), Appellant.
Civ. No. 9673.
California Court of Appeals. Second Appellate District, Division Two.
April 16, 1935.
Elbert E. Hensley for Appellant.
Martin Forrest for Respondent.
Willis, J., pro tem.
Plaintiff in this action secured judgment against defendants for the sum of $3,062, as damages for injuries sustained by her as a result of the negligent operation of a taxicab in which she was a passenger and being transported over a street in the city of Los Angeles. Defendant Mercer Casualty Company alone appeals from the judgment, and also attempts to appeal from an order denying a motion for new trial.
In a rather formidable and voluminous opening brief appellant states six questions as those involved in the appeal, and specifies as error (1) the admission and retention in evidence, over objection and against a motion to strike, of exhibit 1, being the policy of public liability insurance upon which plaintiff founded appellant's liability; (2) the denial of appellant's motion for nonsuit; (3) the making of findings contrary to evidence in respect to issuance of the policy, its continued existence in force and effect at the time of the accident herein, its cancellation as pleaded in the answer, and its annulment by issuance of a policy by another company as pleaded in the answer, and (4) in denying appellant's motion for a new trial. *208
[1] There was no error in admitting the policy in evidence nor in denying the motion to strike the same from evidence. Upon examination of the pleadings and the testimony of Arthur R. Groocox, a motor vehicle inspector for the city of Los Angeles in charge of the motor vehicle division records of the board of public utilities, we find a prima facie basis for its reception in evidence founded on admissions of appellant in its first answer and upon such testimony, which sufficiently identified the policy as one issued by appellant company on September 8, 1931, and filed September 18, 1931, with the board, in whose possession it had remained up to the time of trial. [2] These conclusions apply with equal force to the claim of error in denying the motion for nonsuit and require a determination of that claim adverse to appellant's contention. [3] And for the same reason the claim that the court's finding (No. VII) that such policy was duly issued is contrary to the evidence is not well taken. While there is a denial of execution and issuance of this policy by appellant in its amended answer and evidence that it was signed by a sub-agent of the legally appointed agent, there was in evidence before the court testimony and documentary proofs showing recognition of the policy by appellant sufficient to sustain the finding that such policy was duly issued by it. The company may not absolve itself from liability for a contract which it has authorized or ratified, although the contract may have been secured by a person not an agent or solicitor in the full meaning of section 633 of the Political Code. (Frasch v. London & Lancashire F. Ins. Co., 213 Cal. 219 [2 PaCal.2d 147].)
This brings us to the more serious and difficult question as to the sufficiency of the evidence to support the finding that such policy was in full force and effect on December 6, 1931, on which date the accident herein complained of occurred. This question is brought sharply into issue by the special defenses, and was the center around which much evidence, both oral and documentary, was introduced. Upon the evidence the court found that the policy was in force at the time of the accident, that it had not been previously canceled by appellant and that it had not been annulled and rendered void by reason of the assured taking out a policy of insurance with another company prior to the accident *209 without having permission of appellant so to do indorsed on said policy.
The probative facts, established without apparent dispute, upon which the court made its findings of these ultimate facts are substantially as follows: B. K. Elgin, residing in Indianapolis, Indiana, from July 1, 1931, to June, 1932, was the agent in California of appellant company, a foreign corporation, and was licensed as such under the provisions of section 633 of the Political Code as it then existed. He had one George O'Hara of San Francisco acting in California as his subagent, who, on September 8, 1931, executed as agent of appellant the policy here in question, bearing number 80070, and the same was filed with the board of public utilities of the city of Los Angeles on September 18, 1931, in accordance with provisions of an ordinance regulating passenger carrying vehicles. The issuance of this policy being reported by O'Hara to Elgin at Indianapolis, the latter wired to the board on September 28th that the policy was issued without permission of the company or of Elgin, and that such issuance was not acceptable. On September 29th, by direction of the secretary of the company, Elgin sent a telegram to the board, signing the company's name thereon, stating: "Please cancel Mercer policy 80070, issued September eighteenth favor Red Top Cab Company Los Angeles cancellation effective as of noon October thirtieth cancelled account of hazardous risk and on prohibitive list of this company confirmation by air mail." This telegram was followed by air mail letter of September 29th copying and confirming the telegram.
On October 30th, while in Los Angeles, Elgin delivered a letter to the board in which he stated in reference to the cancellation of the Mercer policy: "I readily understand that you are right in the premises in not accepting a wire cancellation and agree that you have a right to insist upon a confirmation of such wire by letter, which I failed to give you. This letter, however, will serve as a cancellation notice of said policy effective thirty days from date. However, I am insuring the Red Top Cab Company in the Prudential Casualty and Surety Company of St. Louis, Missouri, effective as of November 1st and I trust you will permit me to take up the Mercer policy as soon as the Prudential policy is approved by your Board." This letter *210 was signed "Mercer Casualty Company of Celina, Ohio, By B. K. Elgin, Special Representative". Elgin was at the same time the agent of Prudential Casualty and Surety Company in California, and on November 1, 1931, he issued a similar policy of the latter company, numbered A U 38951, covering the same risks and in favor of the same assured, although at that time the latter company was not on the approved list of insurance carriers of the board of public utilities of Los Angeles, authorized to write insurance covering public liability risks as provided in the city ordinance. The policy does not appear in evidence herein. The assured continued to pay the premiums to Elgin, who occupied the dual capacity of agent for both companies, from November 1, 1931, no part thereof having been paid to the appellant company by its agent, Elgin, after November 1, 1931.
On November 30th Elgin sent the following letter to the board of public utilities: "This will be your authority to extend the present Mercer Casualty Co. policy and/or Binder until January 1, 1932, for John P. Coyle, Receiver for General Cab Co. DBA Red Top Cab Company. In the meantime I anticipate having the Prudential Casualty & Surety Company approved and will file their policy, thereby relieving the Mercer Casualty Co. from any liability whatsoever in connection with this risk." It was signed "Mercer Casualty Company by B. K. Elgin, Representative". On December 6th the accident herein occurred. On December 10th appellant, from its office in Celina, Ohio, wired to the board requesting advice as to the effective date of termination of its policy No. 80070, to which the board replied on December 11th that the policy had been extended to January 1, 1932, by B. K. Elgin. On December 14th the Prudential Casualty & Surety Company filed with the board its application to write insurance under the ordinance, and on December 29th a license so to do was granted, and on December 30th policy number A U 38959 of such company was countersigned by B. K. Elgin as agent, covering the same risks of the same assured, and was filed with the board.
The policy issued by appellant contained provisions allowing cancellation thereof by the company upon five days' previous notice in writing to the assured, if cancellation is sought on the ground of failure to pay premiums or for *211 extrahazardous conditions due to conduct of the assured, and for other causes upon thirty days' previous notice in writing to the assured and the filing of a duplicate thereof within said time limit with the board of public utilities of the city of Los Angeles, stating the reasons therefor and the effective date thereof. We find no evidence herein of delivery of any notice of cancellation by appellant to the assured, but it appears in the testimony of B. K. Elgin that in the latter part of October, 1931, he had a conversation with Coyle, the assured, at the latter's office in Los Angeles, in which conversation Elgin stated to Coyle that until the Prudential Casualty and Surety Company was approved by the board of public utilities he would let the Mercer Casualty Company policy remain on record as a matter of accommodation to the assured so as not to deprive him of his right to carry on the taxicab business in the interim before the Prudential Company would be approved and its policy accepted by the board of public utilities. He further stated to the assured that the Mercer Company would not accept his business of insurance. Subsequent to November 1, 1931, claims for losses were reported by the assured to the adjuster of the Prudential Company and were adjusted and claims were paid by draft drawn on the Prudential Company during November and December, 1931. The claim of plaintiff herein against the assured was among those reported to such adjuster, and receipt thereof was acknowledged by the Prudential Company on December 18, 1931, and listed on its records by number.
On March 31, 1931, appellant company made application to the board of public utilities of Los Angeles to write all claims of insurance within the jurisdiction of that board. On the same date it applied to the insurance commissioner of California to approve and license the appointment of B. K. Elgin as its agent in California under the provisions of section 633 of the Political Code as it then existed. On July 1, 1931, a license was issued to B. K. Elgin by the insurance commissioner reciting that Elgin had complied with the provisions of section 633 of the Political Code. That section required as a condition precedent to the issuance of a license to an insurance agent or solicitor that he present a duplicate power of attorney from the company authorizing him to act as such agent or solicitor. Under this appointment Elgin proceeded to act as such agent from his home office in *212 Indianapolis, through subagents residing in California. He handled all public vehicle insurance business in California, accepted or rejected applications for policies submitted by his subagents, collected premiums and extended and canceled policies, apparently having and freely using authority in all these respects. Appellant's application to the board for permission to do business recited that the general agents of the company were "Rutherford & Elgin". By a written agency contract executed in January, 1931, the company had appointed Elgin as its agent in Indiana and in any part of the country in which the company was licensed, to receive applications for insurance and as agent to perform such other acts as he might be authorized to do. On October 28, 1931, appellant company, by its secretary, sent its letter to Elgin, while he was in Los Angeles, directing him to inform all his subagents in California and elsewhere that in the future no public passenger carrying business shall be "bound" by them for the Mercer Casualty Company unless the same has first been referred to the company and accepted by them.
From all this and other evidence in the case it is made to clearly appear that Elgin was the general agent of appellant company for California, authorized to do anything in respect to the soliciting, writing, extending or canceling of liability policies which the company itself might do. (Bank of Anderson v. Home Ins. Co., 14 Cal.App. 208 [111 P. 507].)
[4] The powers of an agent for an insurance company are, as a general rule, governed by the general law of agency. His powers are varied by the character of the functions he is employed to perform. He may be a general agent with general powers, or his powers may be limited by the company. He possesses such powers as have been conferred by the company or as third persons have a right to assume he possesses under the circumstances of the case; and as a general rule his powers, as to those dealing with him, are determined by the nature of the business entrusted to him and are prima facie coextensive with its requirements. (Frasch v. London & Lancashire F. Ins. Co., supra.) [5] Ordinarily a general agent is one who has all the powers of his principal as to the business in which he is engaged, except as limited by the company to whatever it deems *213 expedient. But in the absence of notice, actual or constructive, to the insured of any limitations upon such agent's authority, a general agent may bind the company by any acts, agreements or representations that are within the ordinary scope and limits of the insurance business entrusted to him, although they are in violation of private instructions or restrictions upon his authority. (32 C.J. 1066; Cooley, Briefs on Law of Insurance, vol. 1, p. 345.) [6] And it may be stated as a rule that where an agent has power to issue a policy in the first instance he has the power also to renew such policies (Cooley, Briefs on Law of Insurance, vol. 1, p. 348); and as a corollary proposition he has power to extend the term of such policies.
[7] Measured by these rules, applied to the probative facts above stated, we are satisfied that the court did not err in finding the ultimate fact of noncancellation as of a date prior to the accident herein. Elgin, as general agent, gave to the board a notice of cancellation on September 29, 1931, gave another written notice of cancellation to the board on October 30, 1931, but gave no written notice of cancellation at any time to the assured. On November 30, 1931, he gave to the board a written notice of extension of appellant's policy to January 1, 1932, and informed the assured that such policy would remain on record until the Prudential policy was approved by the board. In so far as concerns the board of public utilities and Coyle, the assured, and plaintiff herein, who was one of the potential beneficiaries under the policy and for whose benefit and protection it was required, approved and accepted, these acts of the general agent, Elgin, were the acts of the company and binding on it. Thereon the trial court correctly found that the policy issued by appellant had not been canceled prior to the date of the accident herein.
[8] This leaves for solution the problem presented by the evidence relating to the issuance and use of the Prudential policy. The policy issued by appellant contained a provision to the effect that, with permission indorsed thereon, the assured may carry other insurance against loss or damage covered by such policy, in which case such loss should be prorated among the policies. Appellant in its answer alleged that the Prudential policy was issued to the assured without permission of appellant, and thereby rendered the *214 policy of the Mercer Company "null and void". The court found upon conflicting evidence that it was not true that the Prudential policy was issued to or received by the assured, and that it was not true that the Mercer policy was null and void because of the issuance of any such policy.
It is patent that the claim asserted by appellant in its special defense, that issuance and acceptance of another policy on the same risk would render appellant's policy null and void, is not well founded. The terms and language of the policy do not support such defense. However, on this appeal the appellant has transmuted the claim thus presented by its answer into a claim that the issuance to and acceptance by the assured of the Prudential policy operated as a matter of law to release appellant from the obligations on its policy, under the general rule announced in some cases to the effect that an insurance policy is in effect canceled when another policy is substituted for it. This rule cannot of course operate without the necessary facts showing a substitution. The court below, on a conflict of evidence, found that no policy of the Prudential Company was issued to or received by the assured prior to the date of the accident herein. There is ample and substantial support for such finding in the evidence. This court may not go behind that finding, nor substitute another of its own. [9] Furthermore, we are not unmindful of the fact that the Prudential Company had no license to furnish public liability insurance in Los Angeles until December 29, 1931, and that no policy of that company was actually substituted for the Mercer policy in the records of the board of public utilities until this last-mentioned date. In the meantime respondent had suffered her injuries at the hands of the assured on December 6, 1931, at a time when the Mercer policy was still on file in the office of the board of public utilities, standing as the sole authority for the continued existence of the license of the assured to operate his taxicabs in Los Angeles. The ordinance of the city of Los Angeles in evidence herein required the owner of the taxicabs which he sought to operate in the city as passenger carrying vehicles to file with the board of public utilities and keep in effect a policy of insurance, insuring the public against loss or damage that may result from the operation of such vehicles, or in lieu thereof a bond of certain character and *215 with specified conditions. The policy executed by appellant and filed under this ordinance provided that it shall inure to and be for the benefit and protection of anyone who shall sustain damage or injury by reason of the negligence on the part of the driver or operator of the assured's vehicles while being operated as passenger carrying vehicles. Respondent was injured under the circumstances just stated. Regardless of the acts of the assured in respect to the manipulations of the two insurance policies by the agent in his dual capacity as agent of both companies, respondent, as the injured party, is entitled to recover against the insurance company whose policy constituted the subsisting basis on which the assured's license to operate was founded at the date of injury. It follows that the motion for new trial was properly denied.
The appeal from the order denying a motion for new trial is dismissed. The judgment is affirmed.
Stephens, P. J., and Crail, J., concurred.
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30 B.R. 252 (1983)
In re KDT INDUSTRIES, INC. f/k/a King's Department Stores, Inc. d/b/a King's, Barker's, Kens, Coronet Cosmetics, Barkleigh, Mammoth Mart, Debtors,
NET REALTY HOLDING TRUST, Plaintiff,
v.
KING'S-MAMMOTH, INC., Defendant.
Bankruptcy Nos. 82 B 11453 to 82 B 11515, Adv. No. 82-6136-A.
United States Bankruptcy Court, S.D. New York.
May 16, 1983.
*253 Baron & Gleich, Great Neck, N.Y., for plaintiff; Stephen B. Gleich, Great Neck, N.Y., of counsel.
Goulston & Storrs P.C., Boston, Mass., for defendant; James F. O'Brien, Boston, Mass., of counsel.
DECISION ON SUMMARY JUDGMENT MOTION (STORE # 226)
PRUDENCE B. ABRAM, Bankruptcy Judge.
The complaint in this adversary proceeding was filed on September 26, 1982. The plaintiff, Net Realty Holding Trust ("Net Realty"), is the owner of the Tri-City Shopping Center, Somersworth, New Hampshire, in which defendant King's-Mammoth, Inc. ("King's") Store # 226 is located. The plaintiff seeks
"An order vacating the stay to permit plaintiff to terminate the lease upon the breach by defendant of the implied and express covenants that it will operate its business in such manner as to achieve the maximum gross sales and upon its constructive abandonment of the premises." Complaint at ¶ 5.
An answer was filed on October 29, 1982 denying Net Realty's entitlement to the relief requested. On December 21, 1982, King's filed a notice of motion for summary judgment on the grounds that there is no genuine issue as to any material fact and that King's is entitled to a judgment dismissing the proceeding as a matter of law. In support of the motion, King's submitted the affidavit of Marjorie Ann Hession, Lease Administrator and Assistant Secretary of KDT Industries, Inc. ("KDT"), the parent corporation of these related debtors. The affidavit states that Store # 226 is currently open and operating, that there are no plans or intention to abandon the premises or close the operations at Store # 226, and further that all use and occupation has been paid since August 5, 1982, the date the Chapter 11 petition was filed.
In response to the motion, the attorney for Net Realty filed a conclusory affidavit which asserts that there are factual issues that can be determined only at trial, that this court is without jurisdiction to entertain this motion and that the motion is improper because of the pendency of a discovery dispute. The interrogatories propounded to Net Realty which deal with the basis for the allegations of the complaint and the answers thereto are appended as an appendix to Net Realty's brief on the motion.
This court is authorized to act in this matter by virtue of Emergency Bankruptcy Rule I adopted by the United States District Court for the Southern District of New York on December 23, 1982.
In opposing a motion for summary judgment, a party may not simply rely on the contentions of its pleadings. United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). Nor can the opposition rely on mere conclusory allegations or denials. SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). The opponent must bring to the court's attention some affirmative indication supporting his version of the facts. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 441, 445 (2d Cir.1980). The possibility that issues of fact might be elicited on cross-examination is not sufficient. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). Net Realty has not met this burden. For example, nothing but conclusory statements are offered as to the allegedly material fact that King's manner of operation constitutes *254 constructive abandonment notwithstanding that the store is open and available for inspection by the landlord on a daily basis. Likewise allegations as to the effect on other tenants of KDT's manner of conducting its business and that the rent reserved in the lease is nominal have been supported by nothing but conclusory allegations. The discovery dispute does not preclude consideration of this summary judgment motion since the asserted material facts are within the control of Net Realty to show.
No dispute exists as to any material fact. For the reasons set forth below, this court grants summary judgment to King's and dismisses the complaint.
Net Realty seeks to have this court imply a covenant by the tenant to operate the premises so as to maximize percentage rent. Percentage rent is rent based on gross sales, as defined in a lease, and is payable whether or not a tenant operates at a profit. It is conceded that there is no such express covenant in the lease for Store # 226. There are covenants in the lease providing for the payment of percentage rent (Article 6), real estate taxes (Article 7), that the taxes are to be deducted from the percentage rent payable (Addendum Paragraph 10), use (Article 11), and hours of operation, a restriction on tenant's operation of a similar business within a five-mile radius and the landlord's operation of a shopping center with a similar store within a five-mile radius (Article 40).
Implied covenants are disfavored. Only two circumstances are held to warrant implication of a covenant: (1) the parties thought it so obvious it did not need stating or (2) it is a necessary result of what is stated, either as an implication of the language used or it is indispensible to effectuate the intention of the parties. Cousins Inv. Co. v. Hastings Clothing Co., 45 Cal. App.2d 141, 113 P.2d 878, 882 (1941).
A review of the cases in which an attempt to have a covenant implied relative to a percentage rent clause is helpful in seeing how the lease at issue here in fact handles the issues surrounding the percentage rent clause. From a landlord's perspective, a percentage rent clause is valuable only to the extent that the tenant actually operates the store and has sales sufficient to bring the clause into operation. Thus, the landlord would like assurance that the store will be continuously operated as a store, see Cousins Inv. Co. v. Hastings Clothing Co., supra (court refused to imply a covenant requiring the lessee to remain in business until the end of the term of the lease) and Lippman v. Sears Roebuck & Co., 44 Cal.2d 136, 280 P.2d 775, 779 (1955), vacating on other grounds 271 P.2d 891, 896-7 (1954) (use clause permitting occupancy for sale and storage did not require tenant to use for both purposes, storage alone being an acceptable use); that the owners of the store will not operate a competing store in the immediate vicinity, see Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31 (1953) (covenant against operation of additional store would not be implied) and Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 200 N.E.2d 248 (1964) (no basis for implying a covenant against opening a competing store a half-mile away); and that the store will be used for a specific purpose, Hicks v. Whelan Drug Co., 131 Cal.App.2d 110, 280 P.2d 104 (1955) (although lease permitted operation of lunch counter, it did not require it, tenant was within rights to wall off selling floor space to reduce size of store particularly in light of change in neighborhood and covenant to operate so as to make it mutually profitable to landlord and tenant would not be implied.)
The lease for Store # 226 prohibits the tenant from operating a store within a 5-mile radius, requires that the store be continuously operated and specifies the minimum hours of operation and restricts the use of the premises to operation of a department store, junior department store or discount department store and specifically prohibits certain uses. Net Realty urges that, despite these express provisions in the lease which deal with the pitfall areas just described, the court must find that there is an implied covenant to maximize sales, and thus percentage rent. This court declines to do so. The thirty-five-page lease is obviously *255 the product of substantial negotiation; it is detailed and precise. The clause sought to be implied is not one so obvious as not to need stating or necessary to effectuate the parties' intentions. Nor is the clause such as to suggest that the tenant would have readily agreed if it had been brought to its attention. The tenant's motivation is to operate the store profitably. The tenant's motivation and the landlord's interest normally coincide. But a covenant such as sought to be implied here would restrict management prerogatives of the tenant. Moreover the clause sought to be implied seems fraught with endless difficulties of construction. Should the tenant run a sale? What merchandise should it buy? Must it borrow for working capital? These are only a few of the questions which come to mind.
A covenant to act in good faith has been implied. See Goldberg, 168-05 Corp. v. Levy, 170 Misc. 292, 9 N.Y.S.2d 304 (1938), modified on other grounds, 256 App.Div. 1086, 11 N.Y.S.2d 315 (1939). See also, Stop & Shop, Inc. v. Ganam, 347 Mass. 697, 200 N.E.2d 248, 253 (no indication that tenant in closing store acted otherwise than as its sound business judgment dictated in promoting its business and there was no showing that the discontinuation of operations was for spite or to inflict harm.) There is not even a hint of bad faith in this case. King's general business problems may have hindered its operations and reduced gross sales at Store # 226 but nothing singles this store out from the other stores in the KDT group. Moreover any decline in sales from Store # 226 in 1982 had no impact on the landlord because the decline did not in fact affect the percentage rent payable by King's. Although both Net Realty and King's have stated that no percentage rent has been paid in recent years, this is not the case. Paragraph 10 of the Addendum to the lease overlaps the real estate taxes and the percentage rent, and the real estate taxes are a credit against the percentage rent due. In 1981 the real estate taxes paid by King's were approximately $40,000. Thus gross sales would have had to be approximately $6.5 million before the credit against the percentage rent resulted in the payment of "pure" percentage rent. That figure is substantially in excess of the gross sales figure for any recent year.
Net Realty asserts that necessity for implying the covenant is the stronger because King's is an anchor tenant in a shopping center. Neither of the cases cited by Net Realty involving shopping center anchor tenants involve assertions of implied covenants to operate for mutual profit. In Ingannamorte v. Kings Super Markets, Inc., 55 N.J. 223, 260 A.2d 841 (1970), the court was confronted with an anchor tenant who had closed its store, stated that it had no present plans to reopen, but refused to surrender the premises to the landlord. The court found in light of all the facts that it was appropriate to compel the tenant to make an election to resume operations forthwith or surrender the premises. Likewise, in Dover Shopping Center, Inc. v. Cushman's Sons, Inc., 63 N.J.S.Ct. 384, 164 A.2d 785 (1960), the court was confronted with an apparently major shopping center tenant who had shut down operations completely notwithstanding a clause in the lease compelling operations. The court directed resumption of operations.
Net Realty seeks to get around the holdings in the cases cited above by alleging that the rent reserved is not substantial. This allegation must also fail. No facts have been submitted to support the allegation. This was not a lease for a clearly nominal sum. The minimum rent is $65,000 per annum and in addition the tenant must pay the allocated real estate taxes, which were about $40,000 in 1981. These amounts are not nominal, even if in these days of hyperinflation it is not as meaningful a dollar amount as it was in 1969 when the lease was signed. A nominal rent is the modern-day equivalent of a peppercorn. See Lippman v. Sears Roebuck & Co., supra (minimum rent of $285 a month held to be nominal in light of circumstances surrounding execution of lease and thus tenant required to pay percentage rent.)
Turning to the alleged constructive abandonment, the court likewise finds the claim *256 legally insufficient. Net Realty's factual allegations on which it bases this claim are set forth in its answers to interrogatories. It appears that shortly after learning of the KDT Chapter 11 filings, the landlord caused an inspection of Store # 226 to be made and was advised that the store was sparsely stocked, stockrooms were virtually empty and merchandise was arranged to appear more voluminous. The only basis for the constructive abandonment is the insufficiency of merchandise in an admittedly open store. King's has not closed its operations, it desires to continue operations and management of the operations at the location have recently been assumed by Ames Department Stores, all of which gives every indication that the operation is improving rather than deteriorating. The claim fails to rise to the level of legal sufficiency, particularly in light of the explicit use clause in the lease.
Implied covenants are not a means of relieving a party from a bargain made, even if it may be a harsh or ill thought out bargain. The bad bargain here, if there is one, is the result of the overlap of the real estate tax obligation on the percentage rent clause. Even if this court were to imply the covenant sought by the landlord, it would not result in the payment of any percentage rent over the taxes in the immediate future and might not result in the payment of any "pure" percentage rent over the balance of the term of the lease.
Although the discussion above centers on the legal grounds asserted for the termination of the lease for Store # 226, these questions arise in the context of a request for a modification of the automatic stay. Net Realty asserts that the stay should be modified because of lack of adequate protection and because Store # 226 is not necessary for an effective reorganization since it is merely one of a great number of stores. As to the adequate protection point, the use and occupation is being paid currently[1] and that is all that is required. See In re Cheshire Molding Co., 9 B.R. 309 (Bkrtcy.Ct.D.Conn.1981). As to the second point, this court cannot accept that a debtor with numerous stores is worse off than one with only two or three. Obviously no single store in a large chain would normally be critical to the reorganization effort; however, the group of stores as a whole is necessary for an effective reorganization. If adequate protection exists as it does then it is not necessary to reach the question of whether the property is necessary to an effective reorganization. No cause exists for modification of the stay under § 362(d)(1) of the Bankruptcy Code since the court has found that the landlord has no right to terminate the lease and no other cause exists.
Submit judgment.
NOTES
[1] Counsel for the landlord has asserted that there are unpaid real estate taxes but has not specified the details of this claim. King's has offered to pay any post-petition real estate taxes and has the capacity to make the payment.
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617 F.2d 294
*U. S.v.Dobbs
79-5614
UNITED STATES COURT OF APPEALS Fifth Circuit
5/8/80
1
W.D.Tex.
2
AFFIRMED***
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
TERRANCE JACKSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-5774
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed January 6, 2015.
Petition for Writ of Certiorari -- Original Jurisdiction.
Terrance Jackson, pro se, Petitioner.
No appearance for Respondent.
PER CURIAM.
DISMISSED.
ROBERTS, RAY, and MAKAR, JJ., CONCUR.
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707 P.2d 635 (1985)
Paul BECKETT, Appellant,
v.
Derle H. OLSON, K. Lawrence Clark, Vincent N. Stout, Edward Meihoff, Douglas L. Taylor, Dba Beaver Properties, and Lonnie Phelps, Respondents.
CI 83-194; CA A31782.
Court of Appeals of Oregon.
Decided October 9, 1985.
Submitted on Record and Briefs April 3, 1985.
William N. Kent, Eugene, filed the brief for appellant.
Douglas L. Taylor, filed a brief pro se in which the other respondents joined pro se.
*636 Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.
GILLETTE, Presiding Judge.
Plaintiff appeals the trial court's award of statutory damages for the failure of defendants, his former landlords and their agent, to return his security deposit within the statutorily required time. He asserts that the damages awarded are too low and that the court erred in failing to award attorney fees. We agree with the first assertion and therefore reverse and remand.
Plaintiff paid a $150 security deposit when he rented an apartment from defendants. On June 1, 1983, he gave 30 days notice that he was moving; he moved out on July 1, 1983. He asked for the return of his security deposit and sent defendant Phelps a change of address form; he also retained his former telephone number after moving and notified the post office of his change of address. Plaintiff did not receive a check for his security deposit until August 21, 1983. He refused to negotiate the check and, instead, filed this action, seeking $300, double the amount of the deposit, and attorney fees. ORS 91.760(8).[1] The court granted plaintiff's motion for summary judgment but awarded him only $50. It apparently assumed that plaintiff would receive the amount of the deposit itself by negotiating the check. The judgment is silent as to attorney fees, and plaintiff did not claim any in his cost bill.
Before filing their brief, defendants moved to dismiss this appeal on the ground that the amount in controversy is less than that required to give this court jurisdiction. We denied the motion with leave to renew it in their brief. Defendants again raise the issue, and we again deny the motion.[2] ORS 19.010(3) provides:
"No appeal to the Court of Appeals shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings that the amount in controversy exceeds $250."
Defendants argue that, because plaintiff has received his $150 deposit and a $50 penalty, there is only $100 in controversy on appeal. However, plaintiff's amended complaint sought $300. Defendants in their answer alleged that plaintiff had received $150, but plaintiff is deemed to have denied that allegation. ORCP 19 C.[3] It appears from the pleadings that the amount in controversy exceeds $250. Facts which are not admitted in the pleadings but which may provide defendants *637 with a defense to part of the amount claimed do not affect our jurisdiction.
Turning to the merits, ORS 91.760(8) provides that a tenant may recover twice the security deposit if the landlord does not return it within 30 days from the termination of the tenancy and the redelivery of possession, unless the landlord claims part or all of the deposit within that period. The statute is unambiguous and absolute. The use of "the tenant may recover" rather than "the tenant shall recover" does not give the court any discretion. Rather, it is a statement of the steps the tenant, as a matter of right, may take if the landlord does not comply with the statute. If the tenant decides to sue and is successful, the recovery will be the full penalty; that is, if the facts are shown, the tenant is entitled to judgment. The amount due does not depend on the landlord's good faith or bad faith or on the tenant's damages or lack of damages. The obvious purpose of the statute is to encourage landlords to fulfill their statutory duties by establishing an automatic penalty for their failure to do so. Discretion to reduce the award would subvert the statutory purpose. The court erred in failing to grant plaintiff judgment for $300.[4]
We do not decide plaintiff's entitlement to attorney fees under either ORS 91.755 or the tenancy agreement, because plaintiff did not properly raise the issue below. Under ORCP 68 C, attorney fees must be claimed as part of the prevailing party's cost bill. Plaintiff's cost bill did not include an amount for attorney fees. The court never had occasion to rule on an attorney fees claim, so it cannot have erred by failing to allow one.[5]
Reversed and remanded with instructions to enter judgment for plaintiff for $300, together with costs and disbursements.
NOTES
[1] ORS 91.760 provides in part:
"(6) In order to claim all or part of the security deposit, within 30 days after the termination of the tenancy and delivery of possession the landlord shall give to the tenant a written accounting which states specifically the basis or bases of the claim.
"(7) The security deposit or portion of the deposit not claimed in the manner provided by subsection (6) of this section shall be returned to the tenant not later than 30 days after the termination of the tenancy and delivery of possession to the landlord.
"(8) If the landlord fails to comply with subsection (7) of this section or if he fails to return any prepaid rent required to be paid to the tenant under ORS 91.700 to 91.895 the tenant may recover the property and money due him in an amount equal to twice the amount wrongfully withheld."
[2] Defendants' motion was made by an attorney who did not represent them at the trial court and who later withdrew from representing them on appeal. In their brief they refer to the issue but do not formally renew their motion. Because the matter affects our jurisdiction, we must decide it with or without a motion. Industrial Leasing Corp. v. Van Dyke, 285 Or. 375, 377, 591 P.2d 352 (1979); Valdez v. Timmerman, 58 Or. App. 366, 369, 648 P.2d 365 (1982).
[3] ORCP 13 B allows a reply only to "a counterclaim denominated as such" or "to assert any affirmative allegations in avoidance of any defenses asserted in an answer." The absence of a reply does not admit the asserted defenses but denies them. ORCP 19 C. However, the plaintiff may not introduce evidence of new matter in avoidance of the defenses without pleading it in a reply. Plaintiff's failure to reply in this case was a denial of the defense of partial payment and a reassertion of his claim in the complaint that defendants owed him $300. It is not possible to determine from the face of the pleadings that there is less than $250 in dispute; we therefore have jurisdiction over the appeal.
[4] Any amount plaintiff actually received or will receive from the check defendants tendered should be credited against the judgment.
[5] Plaintiff submitted his cost bill at the same time that he filed a motion for reconsideration in which he asked the court, among other things, to award reasonable attorney fees. The motion was not the proper method of asserting a right to attorney fees, and it did not request any particular amount or provide any other basis for an award.
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262 Wis. 506 (1952)
PLAINSE, by Guardian, Respondent,
vs.
ENGLE, Appellant.[*]
Supreme Court of Wisconsin.
November 5, 1953.
December 2, 1953.
March 6, 1953.
March 31, 1953.
*510 For the appellant therewas a brief by Backus & Backus, attorneys, and August C. Backus, Jr.
For the respondent there was a brief by Rubin & Ruppa and Gerald H. Kops, attorneys, and William B. Rubin of counsel, all of Milwaukee, and oral argument by William B. Rubin.
GEHL, J.
Joseph W. Buellesbach who had been a real-estate broker and appraiser for about twenty-five years prior to the trial, and who was familiar with the value of Milwaukee property, testified that in his opinion the home property before improvements made on it by defendants subsequent to the conveyance, had a value of $9,200 and that the flat without improvements was worth $11,800. The defendants testified that as consideration for the conveyance of the home they paid the father $3,000 and that after the conveyance they improved and repaired it at a cost of $13,000. At one stage the defendant, Edward Engle, testified that he paid the $3,000 to the father in the latter's home and on another occasion he said that he paid it to him in the garage upon the property; that $2,000 of the purchase price belonged to Florence, who *511 had received it upon a policy of life insurance issued on the life of her former husband who died in 1930, and that $1,000 thereof was Edward Engle's money saved by him from his earnings. He testified that his daughter was present when the $3,000 was paid to the father but the daughter was not called as a witness to corroborate his testimony. Although it appears from the record that the father was quite meticulous in the care of his property and money and that it was his practice to deposit his receipts to the credit of his bank account, it does not appear that the $3,000 was ever deposited to his credit in any bank.
The defendants testified that as consideration for the conveyance of the flat they paid the father $5,700, but admitted that they obtained the money by means of a mortgage placed upon the flat after title thereto had been obtained by them. They testified that they expended $11,362 to repair and improve the flat after title was placed in their names.
With respect to the transactions involving the deeds it was for the trial court to determine whether at the time of their execution the father had sufficient mental ability to know what he was doing and the nature of the act done. Boorman v. Northwestern Mut. Relief Asso. 90 Wis. 144, 62 N. W. 924.
Florence testified that at about the first of the year 1951 she noticed for the first time that her father was becoming "childish." Edward Engle testified that he first observed that the old man was not in his right mind at Christmas time in 1950, and that this observation followed from the fact that he was not "too enthused" about his presents.
Hedwig Rockburg, a neighbor of the parties, testified that she had visited frequently with the defendants and observed the father. She noticed no change in his condition until 1951 and that on New Year's Day of that year she noticed "something funny about him," and that since then he has been gradually slipping.
*512 Dr. Francis Joseph Millen, a specialist in neurology and psychiatry, was admitted to practice in 1942. From 1943 until 1949 he did postgraduate work at the University of Minnesota and at the Mayo Clinic at Rochester, Minnesota, and at several hospitals and schools, specializing in training in neurology and psychiatry. He observed the father on August 9, 1951, at a hearing in the office of a court commissioner, on January 9, 1952, at a hospital to which the father had been committed. He conducted the usual, accepted, formal psychiatric examination. He arrived at the conclusion that the patient was psychotic. At the trial and after some effort was made by defendants' counsel to obtain testimony from the doctor, counsel asked that the proceedings be suspended and that the doctor be permitted to examine the father. The proceedings were suspended and such examination was made. Dr. Millen then testified that his most recent examination revealed that "Mr. Plainse has a marked defect in mentation or thinking, in concentration, in attention, in recall and memory, in orientation, particularly in place and in time, and also in judgment and insight;" that this condition sometimes comes on gradually and may sometimes occur over a period of two or three months; that he could not state what the progress of his illness was, nor what his condition was five years previous to his examination; that he could not with absolute certainty state what the mental nature of the individual was for any long period prior to the time he examined him; that it is possible for a person to be legally competent and psychotic at the same time. Upon cross-examination he testified that he could not with absolute certainty state how long his then condition predated the last examination; that it might be a year or two years or that it might be five years. Upon redirect examination he testified that it was not his opinion that his mind was defective in 1948; that he could have been perfectly well and healthy in 1948 or 1950 but that the defect in memory discovered in his examination of the patient could have come on in 1951: *513 that it was his opinion that his mind was not defective in 1948 and that it could have been perfectly clear in 1948. On recross-examination he testified that his mind may have been defective in 1948 and that it may also have been defective prior to that year. He described the patient's condition as "senile psychosis" and stated that he could not say how long he had been suffering from that ailment. From statements made by others to him, he formed his opinion that the onset of the psychosis was on January 1, 1951.
He testified that in 1948 when the father signed the first deed he could have been competent and he could have known what he was doing and the reason and the nature of it and the reason for it; that he could have been incompetent at that time too; that he was incompetent at the time of the trial and that he could not state with absolute certainty how far back that incompetency extends.
From the foregoing it is apparent that the witness either did not or could not venture a firm opinion as to the mental condition of Mr. Plainse from the time the first deed was executed in July, 1948.
The proof offered by plaintiff to establish his claim of incompetency consists principally of the testimony of the son, Roy, who testified that he noticed that his father "had been slipping" during the preceding several years; of Helen Plainse, widow of the son, William, who testified that since the mother's death he "had been slipping," and the testimony of Dr. Robert E. Fitzgerald.
Dr. Fitzgerald is sixty-five years of age and graduated from Marquette University in 1912. Since that time he has specialized in nervous and mental diseases. He testified that he had examined many cases, over two thousand in the various courts.
He examined Mr. Plainse in October, 1950, and in January, 1952. At the first examination he found him confused and suffering from the usual arteriosclerosis of a man of that age; that he was suffering from a cerebral arteriosclerosis *514 with the usual symptoms of forgetfulness and confusion. At the second examination he found an increase in these symptoms, more confusion and more lack of ability to concentrate, and that he was then suffering from a pure progressive senility; that senility as a rule is insidious in its onset and progressive over the years; that it was his opinion that the onset occurred four or five years prior to his first examination of the patient; that in his opinion during the last five years or so he was incompetent to transact his own affairs and that his condition was such that if during that period he signed a deed or other instrument he did not know what he was doing; that his opinion of the mental condition of Mr. Plainse is based not upon conjecture but upon his examination and his experience in similar cases over the years; that he does not believe that a person in the condition of Mr. Plainse during the past five years was such that he knew what he was doing.
In answer to a question upon cross-examination he testified that he could state positively that on August 23, 1950, the patient was incompetent.
A vigorous attack is made by defendants upon the testimony of Dr. Fitzgerald. They assert that it was not established that he was a "medical man," a neurologist, or a psychiatrist. There was no objection to his competency. Further, we are satisfied that he established himself as properly qualified to testify as to Mr. Plainse's mental condition. Lowe v. State, 118 Wis. 641, 96 N. W. 417. They suggest that the court should have ignored his testimony for the reason that "the testimony of experts is proverbially unreliable at best." While we might agree that the testimony of an expert sometimes appears to be unreliable or inconclusive, we have not previously heard it suggested that a court must or may arbitrarily reject the testimony of a medical expert upon the question of mental competency. Such evidence *515 may not be disregarded unless it is impeached. Estate of Butt, 181 Wis. 141, 193 N. W. 988.
Defendants contend that Dr. Fitzgerald's opinion is based upon conjecture, a conclusion not drawn from observed or proven facts. The weight to be accorded to the doctor's testimony was for the trier of the facts. Monaghan v. Northwestern Fuel Co. 140 Wis. 457, 122 N. W. 1066.
We are unable to agree with defendants that the trial judge's finding, that at the time of the execution of the two deeds William G. Plainse had not sufficient mental ability to comprehend the nature of his acts and to know what he was doing, is not supported by clear and satisfactory evidence.
The trial judge was no doubt influenced in finding that the defendants have displayed a purpose to acquire the father's property by a number of incidents and circumstances which appeared upon the trial. We have already referred to the fact that they claimed that they had paid the father $3,000 for the home and that, although the father customarily deposited his cash receipts to the credit of his bank account, it appears conclusively that no deposits were made which appear to have been received from the defendants for the sale of the home and the further fact that the defendant, Edward, represented that he had paid this sum to his father-in-law, first in the home, and then in the garage in the presence of his daughter who was not called to corroborate his story.
It appears from her own testimony that in 1939 after her first husband's death, Florence Engle applied for a mother's pension and now she claims that upon the death of her first husband in 1930 she received $2,000, the proceeds of a life insurance policy; that she retained that sum and applied it to the purchase price of the home. It follows that if she did so retain that amount she misrepresented her financial status when she applied for a mother's pension.
The trial judge considered it significant that when Florence Engle applied for an order appointing a guardian for *516 the father she stated under oath in her petition that his personal estate did not exceed a value of $200 "although upon this trial, as a witness, she testified that she then considered all of the money on deposit . . . in the Park Savings Bank, amounting to roughly $7,000, to be the property of William G. Plainse, the incompetent." She testified that when she made application for the appointment of a guardian she did not notify her brother, Roy, and that she omitted such notice because she did not know his place of residence, although at that time his name and address were carried in the Milwaukee telephone directory. For the rather minor services which she rendered to her father and which the defendants claim afford a part of the consideration for the two conveyances it probably appeared to the trial judge that there was in the one case no consideration, and in the other inadequacy, particularly when it appears that there is doubt that anything was paid in cash for the first conveyance and that the cash paid for the second conveyance was acquired by the defendants after they received the deed to the flat and used the property as security for a loan which provided them with all they paid for the deed to the flat. Shortly after the mother's death the father made a will by which he directed that his estate should be divided among his children. The will was in the custody of Florence until she was required to produce it at the trial.
Florence Engle testified respecting the bank accounts that neither she nor her husband ever deposited any of their money to the credit of the accounts; that all the deposits represent money received by the father; that the money belongs to the father, "those were his earnings and whatever he saved;" that she always knew that the money belonged to her father and that "he just had my name put on there in case he got ill or anything;" that the understanding was that if he got ill at any time and needed a lot of medical attention she would be able to withdraw the money and see that he got *517 it; that except for the last two, all the deposits were made by him; that he retained the passbooks until January, 1951, when she observed that he was failing mentally; that when her husband's name was included as a depositor in April, 1951, it was done for convenience, she "was not always able to go out;" that all withdrawals except two were made by the father.
On June 27, 1951, nearly two months after her father had been judicially declared to be incompetent, she opened a new account in her name alone in the Park Savings Bank by the deposit of $1,119.52 of her father's money.
Defendants rely principally upon Estate of Staver, 218 Wis. 114, 260 N. W. 655, as authority for their contention that the mere issuance of the passbooks in the names of the father and Florence vested ownership of the fund in them jointly. If there were nothing in the record except proof of the issuance of the passbooks the rule of that case would apply. From the testimony of Florence it appears, however, that there is morethe purpose of the father and that which was intended by him was disclosed by her. The deposits were made with no intention of passing title from the father; they were made for convenience. In the Staver Case, supra, the court recognizes that under such circumstances the person whose name appears with that of the actual depositor upon the evidence of the deposit acquires legal title to the fund impressed, however, with a trust in favor of the actual depositor. The court says (p. 121):
"Suppose, however, that in spite of this fact it is shown that the purpose of the deposit was to constitute the payee other than the depositor a mere agent as, for example, where the depositor is ill and wishes to make it possible for another to withdraw funds and apply them to the depositor's use, in such a situation the fact of this arrangement would justify a court of equity in affecting the legal title of such person with a trust in favor of the depositor or his heirs."
*518 Facts similar to those before us appeared in Marshall & Ilsley Bank v. Voigt, 214 Wis. 27, 252 N. W. 355. There a deceased husband had opened joint bank accounts in the names of himself and his wife. When the accounts were opened he was given cards which contained an agreement similar to that contained in the agreement made in this case, that the money then and thereafter to be deposited is owned jointly by the persons named and is subject to the order of either, the balance at death of either to belong to the survivor. The court held that under the circumstances the retention by him of the passbooks evidenced his intention not to confer title upon his wife; that he had directed that her name be included as a depositor solely for his own convenience to enable her to make withdrawals on his behalf.
In the Staver Case the court indicated that it was probably in error in the Voigt Case in disposing of it on the ground that there was no delivery of the passbooks and therefore no completed gift. With respect to the Voigt Case, supra, the court said (p. 124):
"This ruling must likewise be modified, although the result in the Voigt Case was entirely correct under any view of the law. This case is similar to the illustrations heretofore given where a depositor, for the sole purpose of his own convenience, makes a joint deposit so that the other person may, for the convenience and sole benefit of the depositor, draw funds and apply them to the use of the depositor. Such a situation, if established, is sufficient to warrant affecting the legal title with a trust in favor of the husband's estate."
In Estate of Krause, 241 Wis. 41, 4 N. W. (2d) 122, the deceased husband had opened a savings account and took out a passbook in the name of his wife. He retained possession of the book. It appeared that he had made the deposit in order that he might have the benefit of federal deposit insurance. The court rejected the widow's claim that she had become owner of the fund. The court said (p. 44):
*519 "Not having established it the trial court correctly held that the mere fact that the account was opened in her name, the possession of the passbook having been retained by her husband, there being no evidence of delivery of the book to her by him or any other evidence tending to establish his intention to make a gift to her of the amount of money deposited, the appellant had failed to establish her case."
The last expression of this court in a situation similar to that presented here is contained in Ruffalo v. Savage, 252 Wis. 175, 31 N. W. (2d) 175. In that case a father and mother opened a savings account in a bank in the name of their son. No deposits were made therein except from the money of the parents; the parents retained possession and control of the passbook at all times except when it was given to the son on a few occasions for the purpose of making specific withdrawals. The son died and the action was brought against the administrator of his estate to determine the ownership of the proceeds of the savings account. The court discusses the Voigt, the Krause, and the Staver Cases, supra, and applying the rule that the intention of the actual depositor is controlling in the determination of the interest of the other named depositor, concludes that where it appears that the intention of the actual depositor was not to part with his title to the fund no gift results, and held that the son acquired no title to the deposits.
It appears, therefore, that in the instant case the situation is similar to that presented in the Voigt Case, namely, that the accounts of William G. Plainse were carried in the joint names of himself and his daughter,later also of the son-in-law, and still later in the name of Florence alone,solely for the convenience of the father in handling the fund and that therefore the court properly held that the moneys on deposit in the Park Savings Bank, $7,120, are the property of the father and that they should be paid over to his guardian.
*520 The contention is made by defendants that the court erred in refusing to permit Attorney Aaron L. Tilton to answer the question, "Did he [the father] appear to understand the nature of the proceedings?" The question was propounded after Mr. Tilton had testified that he had prepared the two deeds and as to what took place in his office when they were being executed. Conceding that he should have been permitted to answer the question, the error cannot be held to be prejudicial unless we might be able to determine from the record that the refusal was prejudicial to the rights of the defendants and that his answer could be expected to affect the result of the case. Pomeroy v. Heddles, 95 Wis. 453, 70 N. W. 557; Widness v. Central States Fire Ins. Co. 259 Wis. 159, 47 N. W. (2d) 879; sec. 274.37, Stats. Since no offer of proof was made we are unable to make such determination. Langer v. Chicago, M., St. P. & P. R. Co. 220 Wis. 571, 265 N. W. 851; Will of Dobson, 258 Wis. 587, 46 N. W. (2d) 758.
It is urged that the court erred in striking the testimony of Attorney Tilton that when the second deed was executed the father told him that he was selling the property to the defendants. We consider that if it was error to strike the testimony it was not prejudicial.
The court erred in permitting a representative of the department of public welfare to testify concerning the application of Florence for mother's aid, sec. 49.53, Stats. There was, however, other competent evidence to sustain the findings and we must hold that the court disregarded it. Estate of Getchell, 211 Wis. 644, 247 N. W. 859.
The father was called as a witness by the plaintiff. Objection was made. The competency of a witness to testify is a question for the trial court. Markowitz v. Milwaukee E. R. & L. Co. 230 Wis. 312, 284 N. W. 31. Conceding that he should not have been permitted to testify, we cannot conclude, however, that his testimony affected the result of the case.
*521 Defendants contend that the court erred in refusing to require the return of the purchase price paid by them for the two parcels of real estate, $3,000 for the home and $5,700 for the flat. As to the $3,000 item, the court found that it had not been made. We may not disturb that finding. As to the other item it is undisputed that the money was acquired by defendants by means of a loan secured by a mortgage placed on the flat after they obtained the deed purporting to convey it to them. The mortgage, except as it has been reduced by payments, still rests upon the flat and is now, by virtue of the judgment, a liability of the plaintiff. He has gained nothing by the payment to him of the $5,700.
The judgment decrees that the defendants shall have two claims against the plaintiff. The first is as follows:
Expenditures made by defendants on
home ............................. $10,702.37
Payments made by them to apply on a
mortgage on the home ............. 3,258.36
----------
13,960.73
Less rentals for use of home....... 800.00
Less amount of mortgage on home ... 7,000.00
---------
7,800.00
---------
Balance of claim .................. 6,160.73
The second is as follows:
Expenditures made by defendants on
flat ............................. 11,502.67
Payments made by them to apply on a
mortgage on the flat ............. 375.72
--------
11,878.39
Less rentals for use of flat ...... 1,733.00
Less amount of mortgage on flat.... 6,000.00
---------
7,733.00
---------
Balance of claim ................... 4,145.39
*522 The only attack made upon the award of claims is that the court erred in charging against the defendants the items of rentals. The only proof with respect to rentals is that the parents of the defendant, Edward, live in the lower unit of the flat and pay no rent. His son occupies the upper unit and pays $42 per month. At the time of the trial the defendants occupied the home. At the close of the testimony and after the court announced its decision, apparently from the bench, counsel suggested that an accounting be had. The suggestion was rejected.
There is no basis for the court's determination that in computing each of the claims the amounts stated should be charged against them for the use of the properties. We agree with the trial court that the defendants are chargeable with the reasonable rental value of the home from May 1, 1951, and of the flat from August 23, 1951, to the date of final judgment, or until possession of the premises is restored to the plaintiff if that be earlier, but consider that there must be further proceedings to determine what such value and amount is. As an offset to the charge for rental value the defendants should be permitted to show what, if anything, they have paid in taxes assessed against the properties. The cause must be remanded solely for the determination of those two issues.
By the terms of the judgment the claims are awarded the defendants "without interest until the further order of the court." The judgment should be modified to provide that defendants be allowed interest upon their claims when determined from the date of the judgment.
The cause must be remanded for a determination:
(1) Of the reasonable rental value of the properties and the amount chargeable to the defendants on that account;
(2) Of real-estate taxes paid by the defendants and the amount of credit they should have on that account.
*522a By the Court.Except as herein modified, judgment affirmed. Cause remanded for further proceedings in accordance with this opinion. No costs to be taxed. Appellant to pay the clerk's fees.
A motion for rehearing was granted on February 3, 1953, and oral argument was heard March 6, 1953.
For the appellant there was a brief by Backus & Backus, attorneys, and August C. Backus, Jr., of counsel, all of Milwaukee, and oral argument by August C. Backus, Jr.
For the respondent there was a brief by Rubin & Ruppa and Gerald H. Kops, attorneys, and William B. Rubin, of counsel, all of Milwaukee, and oral argument by William B. Rubin.
The following opinion was filed March 31, 1953:
GEHL, J. (on rehearing).
Defendants in their argument upon motion for rehearing call our attention for the first time to two items which should have been brought to our attention and considered originally. They attack the trial court's findings to the effect that at the time of trial there was on deposit in the Park Savings Bank credited to the account of Florence Engle and Edward C. Engle, Sr., the sum of $7,120, also in the same bank credited to the account of Florence Engle the sum of $1,119.52. The court determined that these were the moneys of the plaintiff. The record discloses that the court was in error in that there was on deposit in that bank only the sum of $7,120. The latter figure is substituted for the figure $8,239.52, where it appears in our original opinion.
The second item called to our attention appears in our statement of the "second" claim allowed the defendants. There appears the recital "Less amount of mortgage on home [the word `flat' should be substituted for the word `home'], $6,000." Apparently the trial court assumed that the proceeds *522b of the mortgage placed upon the flat by the defendants were retained by them. It appears from the record that the defendants did not retain the proceeds of the mortgage, but that they reached the plaintiff, the greater part thereof having been deposited to his credit in the bank account which we have determined is the property of the plaintiff.
Although the judgment must be modified as we have indicated, in view of the failure of the defendants to assert in the trial court and in their original argument made here their present contentions requiring such modification they cannot be allowed the costs usually allowed to the prevailing party upon an appeal.
In order to avoid the possibility of confusion we consider it necessary to restate the mandate with the required modification.
By the Court.The judgment is modified to provide that defendants be allowed interest upon their claims, when determined, from the date of the judgment. Subdivision (b) of that part of the judgment which decrees that defendants shall have a claim against plaintiff is modified by striking therefrom the provision "less $6,000, being the mortgage placed thereon," and by inserting, in lieu of the provision, "a total of $4,145.39," the provision "a total of $10,145.39."
The cause is remanded for a determination:
(1) Of the reasonable rental value of the properties and the amount chargeable to the defendants on that account;
(2) Of real-estate taxes paid by the defendants and the amount of credit they should have on that account.
Except as herein modified, judgment affirmed. Cause remanded for further proceedings in accordance with this opinion. No costs will be allowed to either party upon the appeal or upon this motion. The appellant will pay the clerk's fees on the appeal and on the motion.
NOTES
[*] Rehearing granted, opinion on rehearing, post, p. 522a.
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413 N.W.2d 598 (1987)
Walter KNUTSON, Relator,
v.
DJM TRANSPORT, INC., Commissioner of Jobs and Training, Respondents.
No. C0-87-1057.
Court of Appeals of Minnesota.
October 13, 1987.
*599 Walter Knutson, pro se.
Thomas C. Power, Minneapolis, for DJM Transport, Inc.
Hubert H. Humphrey, III, Atty. Gen., Peter C. Andrews, Sp. Asst. Atty. Gen., St. Paul, for Com'r of Jobs and Training.
Considered and decided by NORTON, P.J., and MULALLY,[*] and LOMMEN,[*] JJ., with oral argument waived.
OPINION
NORTON, Judge.
Relator Walter Knutson quit his job with respondent DJM Transport and applied for unemployment compensation benefits. A Commissioner's representative denied Knutson benefits, relying on a prior district court decision and concluding that Knutson did not have good cause to quit his job. We reverse.
FACTS
Walter Knutson began working as an over-the-road truck driver for DJM in September 1985. Knutson was hired as an employee, not as an independent contractor.
When Knutson was hired, he signed an employment agreement that stated he would be "responsible for all shortages." The agreement also provided that he would be responsible for his food, lodging, and travel expenses, and any "abuse" of DJM's truck.
On March 29, 1986, Knutson quit his job, claiming DJM had offset shortages from his paychecks without his approval, had failed to pay him in a timely fashion, had breached a promise to pay for his lodging when DJM's truck broke down, and had refused to remedy the problems when he complained.
After Knutson quit, DJM withheld his last paycheck because Knutson had damaged DJM's truck. Knutson filed for unemployment compensation benefits. He also commenced a conciliation court action against DJM to recover the money that had been withheld from his paychecks. DJM counterclaimed for the damage sustained by its truck. Knutson obtained a judgment, and DJM appealed. The district court, relying upon the employment agreement, concluded that Knutson was liable for all shortages, that DJM's deductions for shortages were proper, and that DJM was entitled to offset the damage to its truck against commissions and costs owed Knutson. The court ordered judgment for DJM and against Knutson in the amount of $303.66.
The district court judgment was entered on September 18, 1986, and thereafter Knutson's claim for unemployment compensation was denied on the basis that he did not have good cause to quit his job. Knutson appealed to a Department referee, who conducted a hearing. Knutson introduced documents indicating that on October 11, 1985 he had paid a $40 loading fee out of his own pocket, for which he had never been reimbursed; that on March 14, 1986 DJM had deducted shortages of at least $369.91 from his paycheck without his approval; and that he had not received payment for his work in November and *600 December until the middle of the following March. He also testified that upon three or four other occasions, his paychecks had been delayed; that DJM had breached a promise to reimburse him for lodging and meals when his truck had broken down; that he had complained to DJM several times about the problems before he quit; and that there were other non-documented problems.
DJM offered no testimony. Following the hearing, the referee determined that DJM had breached its duties to Knutson by failing to pay him on time and by failing to abide by its promise to reimburse him for lodging expenses when his truck broke down. The referee also concluded that DJM had no legal right to deduct losses from Knutson's wages.
DJM appealed to a Commissioner's representative, who reversed the referee's findings and conclusions, relying upon the agreement Knutson had signed when he was hired, and concluding that the district court judgment regarding the shortages was res judicata. The Commissioner's representative also found that Knutson was unable to "provide specifics" about late paychecks. The Commissioner's representative concluded Knutson did not have good cause to quit.
ISSUES
1. Does the district court decision bar review of Knutson's claims?
2. Did the Commissioner's representative err by concluding that Knutson did not have good cause to quit?
ANALYSIS
1. The Commissioner's representative stated in his memorandum:
The doctrine of [res] judicata applies to this case. The [district] court concluded that the deductions for the shortages were proper. That matter is not subject to further litigation.
* * * * * *
It cannot be held good cause attributable to the employer for the claimant to quit employment, when the court has found that the deductions are proper. That matter is not subject to relitigation before this Department.
The Commissioner erred by applying the doctrine of res judicata.
The effect of res judicata on a judgment or final order has at least two distinct and important aspects: (1) merger or bar; and (2) collateral estoppel. The principles of merger and bar operate where a subsequent action or suit is predicated on the same cause of action which has been determined by a judgment, no matter what issues were raised or litigated in the original cause of action. On the other hand, the principle of collateral estoppel operates as to matters which were actually litigated and determined by, and essential to, a previous judgment, irrespective of whether the subsequent action is predicated upon the same or a different cause of action. In short, one stands for claim preclusion, the other for issue preclusion.
Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978) (citations omitted).
Knutson's action for unemployment benefits is not predicated on the same cause of action that was before the district court. That matter was based on Knutson's employment contract, from which the district court concluded the payroll deductions were proper. Nor did the district court determine the issue being litigated here, i.e., whether the definition of "good cause" applies to Knutson's situation. The term "good cause" is one of art, used and applied in the context of the unemployment compensation statutes. Indeed, the district court did not have the authority to decide the issue, which is now properly before us. The issue is not res judicata, but must be determined by reference to the unemployment laws and the facts existing at the time Knutson quit.
2. The statute governing wage deductions provides:
No employer shall make any deduction, directly or indirectly, from the wages due or earned by any employee, who is not an independent contractor, for lost or stolen property, damage to property, or to recover *601 any other claimed indebtedness running from employee to employer, unless the employee, after the loss has occurred or the claimed indebtedness has arisen, voluntarily authorizes the employer in writing to make the deduction or unless the employee is held liable in a court of competent jurisdiction for the loss or indebtedness.
* * * * * *
Any agreement entered into between an employer and an employee contrary to this section shall be void.
Minn.Stat. § 181.79, subd. 1 (Supp.1985).
Under the statute, DJM had no right to make deductions from Knutson's paycheck unless: (a) Knutson agreed to the deductions in writing after each occurrence, or (b) Knutson was held liable in a court of law. Neither of these alternatives had occurred at the time Knutson quit his job; thus, the deductions were illegal.
An employee who is instructed to engage in illegal and immoral conduct has good cause to quit if he or she first gives sufficient notice of his or her objections to the employer. Burtman v. Dealers Discount Supply, 347 N.W.2d 292 (Minn.Ct. App.1984), pet. for rev. denied (Minn. July 26, 1984). Here, the record indicates Knutson complained to DJM before he quit. Although DJM did not request that Knutson violate the law, DJM itself violated the law.
Upon several occasions, this court has held that an employer's breach of its duties to an employee constitutes good cause for that employee to quit. See, e.g., Rutten v. Rockie International, Inc., 349 N.W.2d 334 (Minn.Ct.App.1984). We conclude that DJM's violation of the statute on authorized wage deductions constituted good cause for Knutson to quit.
The Commissioner also found that Knutson was unable to "provide specifics" about late payments of his checks. In fact, however, Knutson introduced into the record a copy of his March 14 pay stub, indicating payment for November 29 through December 13. The fact that DJM offered no testimony at the hearing to rebut Knutson's evidence casts doubt upon the validity of the Commissioner's reasoning.
DECISION
The record establishes that Knutson had good cause to quit his job when DJM made illegal deductions from his paycheck.
Reversed.
NOTES
[*] Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. 6, § 2.
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537 U.S. 937
LANGFORDv.UNITED STATES.
No. 02-5981.
Supreme Court of United States.
October 7, 2002.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
2
C. A. 2d Cir. Certiorari denied.
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122 U.S. 583 (1887)
SUN INSURANCE CO.
v.
KOUNTZ LINE.
Supreme Court of United States.
Argued January 17, 18, 1887.
Decided May 23, 1887.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.
*589 Mr. John A. Campbell and Mr. O.B. Sansum for appellants.
Mr. Charles B. Singleton and Mr. Richard H. Browne for appellees.
*593 MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.
It is not claimed that the four transportation companies, organized in 1872, can be held jointly liable for the loss of the produce and merchandise shipped on the Yeager by reason of their being, in fact, partners, having a right to participate in the profits of the business conducted by and in the name of the "Kountz Line." They did not share or agree to share the profits or to divide the losses of that business, as a unit. On the other hand, it is not disputed that, according to well settled principles of law, a person not a partner or joint trader may, under some circumstances, be held liable as if he were, in fact, a partner or joint trader. "Where the parties are not in reality partners," says Story, "but are held out to the world as such in transactions affecting third persons," they will be held to be partners as to such persons. Story's Part. § 64. And in Gow on Partnership (p. 4) it is laid down as an undeniable proposition, that "persons appearing ostensibly as joint traders are to be recognized and treated as partners, whatever may be the nature of the agreement under which they act, or whatever motive or inducement may prompt them to such an exhibition." And so it was adjudged in Waugh v. Carver, 2 H. Bl. 235, 246, where it was said by Lord Chief Justice Eyre, that if one will lend his name as a partner he becomes, as against all the world, a partner, "not upon the ground of the real transaction between them, but upon principles of general policy to prevent the frauds to which creditors would be liable." We do not mean to say that such liability exists in every case where the person sought to be charged *594 holds himself out as a partner or joint trader with others. The qualifications of the general rule are recognized in Thompson v. First National Bank of Toledo, 111 U.S. 529, 536, where it was held, upon full consideration, that "a person who is not in fact a partner, who has no interest in the business of the partnership, and does not share in its profits, and is sought to be charged for its debts because of having held himself out, or permitted himself to be held out, as a partner, cannot be made liable upon contracts of the partnership, except with those who have contracted with the partnership upon the faith of such partnership." At the same time, the court observed that there may be cases in which the holding out has been so public and so long continued as to justify the inference, as matter of fact, that one dealing with the partnership knew it and relied upon it, without direct testimony to that effect.
As there is no evidence of any direct representation by these transportation companies, or any of them, to the shippers of the cargo in question, as to their relations in business with each other, or as to their relations respectively with the Kountz Line corporation, or the Kountz Line, the inquiry in this case must be whether they so conducted themselves, with reference to the general public, as to induce a shipper, acting with reasonable caution, to believe that they had formed a combination in the nature of a partnership, or were engaged as joint traders, under the name of the Kountz Line.
In our judgment, this question must be answered in the affirmative. It could not, we think, be otherwise answered, consistently with the inferences which the facts reasonably justify.
The finding of facts, as we have seen, shows that the steamboats Henry C. Yeager, Katie P. Kountz, Carrie V. Kountz, and Mollie Moore were employed in the business of transporting freights and passengers on the Mississippi and its tributaries. They were placed by their owners, or were permitted by their owners to be placed, before the public as being engaged in the same trade, and as constituting, together, the "Kountz Line." They had a common agent, which was *595 invested with, or was permitted during a series of years to exercise, unlimited authority in their general management, and in respect to rates of transportation. That agent the Kountz Line corporation with the knowledge of the transportation companies, publicly announced that it was ready to contract for the carrying of goods and produce by the "Kountz Line boats." We say this was done with the knowledge of the owners of the boats, because the persons conducting the entire business of the Kountz Line boats were officers, with plenary authority of the transportation companies and of the Kountz Line corporation. The court below finds that the transportation companies used and employed their several boats in carrying freight and passengers on the Mississippi River and its tributaries. But with the intent, or with the effect, to mislead shippers, they took care, never, by their respective corporate names, to make, or to allow others in their behalf to make, any contracts, or to enter into any engagements, touching such business. It is expressly found that, during the whole period from the organization, on the same day, in the year 1872, to the date of the shipment on the Yeager in 1880 a period of nearly eight years they did not transact any commercial business whatever, by their respective corporate names. They severally empowered or permitted the Kountz Line corporation, their common agent, to do business for them, using, in their discretion, when making transportation contracts, either the name of the Kountz Line, composed of all the companies, or the names of the respective boats of that line. In no instance was business transacted by the Kountz Line corporation, as representing the particular transportation company owning the boat on which the shipment was made. Those companies, therefore, stood before the world as having united for the purpose of engaging, in the same trade, under the name and style of the Kountz Line, having a common agent the Kountz Line corporation fully authorized to represent them, and each of them, in respect to matters connected with such business. They held themselves out as united in a joint enterprise, under the name of the Kountz Line, and they are jointly *596 liable for the default or negligence of those placed in charge of any of the boats of that line. That the transportation companies owned no property in common, and that each was entitled, as between it and the others, to receive the net earnings of its own boat, is immaterial in view of the fact that they held themselves out, or permitted themselves to be held out, as jointly engaged in the business of transporting freights and passengers, in the same trade, on the Mississippi and its tributaries. So far as the public was concerned, that which was done by their common agent, the Kountz Line corporation, in the prosecution of the business of the several boats constituting the Kountz Line, is substantially what would have been done had the transportation companies entered into a formal agreement to conduct the transportation business, jointly, under the name of the "Kountz Line," through an agent having full authority to represent that line, and the several boats composing it, in the making of contracts with shippers. The latter had the right to infer, from all the circumstances, that the boats, constituting that line, were jointly engaged in such business.
As there is no serious conflict in the adjudged cases as to the general propositions of law to which we have referred, it would serve no useful purpose to review the authorities to which our attention is invited by counsel. Whether, in a particular case, there has been such a "holding out" as to create joint liability, must always depend upon its special facts. No one of the cases cited resembles the one before us in its facts.
This case seems to be unlike any found in the books in the peculiar relations existing between these transportation companies, the Kountz Line corporation, and the stockholders of each of them. We decide nothing more than that, under the facts of this case, The H.C. Yeager Transportation Company, The K.P. Kountz Transportation Company, The Carrie V. Kountz Transportation Company, and The M. Moore Transportation Company, were and are jointly liable for the loss of the produce and merchandise shipped May 21, 1880, on the steamboat Henry C. Yeager. The Circuit Court erred in not so adjudging.
*597 The decree is reversed, and the cause is remanded, with directions to that court to set aside all orders inconsistent with, and to enter such orders and decree as may be in conformity to, the principles of this opinion.
MR. JUSTICE GRAY, not having heard the whole argument, took no part in this decision.
On the same day, (May 27, 1887,) on an application made on behalf of the plaintiff in error, the court ordered that the mandate in this case be stayed, and leave be granted to file a petition for a rehearing.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1637
IKECHUKWU AFI IBRAHIM,
Plaintiff - Appellant,
versus
WAL-MART STORES, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Newport News. Henry C. Morgan, Jr., District
Judge. (CA-98-72-4)
Submitted: December 16, 1999 Decided: December 27, 1999
Before MURNAGHAN and MOTZ,* Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ikechukwu Afi Ibrahim, Appellant Pro Se. Daryl Eugene Webb, Jr.,
Kimberly W. Daniel, MAYS & VALENTINE, Richmond, Virginia, for
Appellee.
*
Judge Motz did not participate in consideration of this
case. The opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ikechukwi Afi Ibrahim appeals from the district court’s order
granting summary judgment to Wal-Mart on Ibrahim’s claims alleging
employment discrimination. We have reviewed the record and the dis-
trict court’s opinion and find no reversible error. Accordingly,
we affirm on the reasoning of the district court. See Ibrahim v.
Wal-Mart, Inc., No. CA-98-72-4 (E.D. Va. Apr. 8, 1999).*
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
*
Although the district court’s order is marked as “filed” on
April 7, 1999, the district court’s records show that it was
entered on the docket sheet on April 8, 1999. It is the date the
order was entered on the docket sheet that we take as the effective
date of the district court’s decision. See Fed. R. Civ. P. 58 and
79(a); Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 25, 2007
No. 06-14544 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-61612-CV-KAM
ADEM A. ALBRA,
Plaintiff-Appellant,
versus
CITY OF FORT LAUDERDALE,
GEORGE GRETSAS,
JAMES NAUGLE,
DEAN TRANTALIS,
BRUCE ROBERTS, et al., in their official capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 25, 2007)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Appellant Adem A. Albra proceeds pro se and appeals the district court’s
dismissal without prejudice of his civil rights complaint against the City of Fort
Lauderdale, Florida (“City”), and other city officials named in their official
capacities, brought pursuant to the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act of 1973 (“Rehabilitation Act”), 42 U.S.C. § 1983, and Florida
state law. Albra alleged that the City police discriminated against him because of
his disease, Human Immunodeficiency Virus (“HIV”), when they refused to
investigate a crime of which he was a victim. Albra also alleged that when he
reported the officers’ refusal, various City and federal entities retaliated against
him by denying him access to services.
Albra alleges the following claims: (1) negligent investigation (“Claim 1”);
(2) negligent supervision and retention (“Claim 2”); (3) 42 U.S.C. § 1983, for
violations of Title II of the ADA and § 504 of the Rehabilitation Act, as well as
negligent training under Florida tort law (“Claim 3”); (4) retaliation under the
ADA and conspiracy between the City and its employees (“Claim 4”);
(5) retaliation under the Rehabilitation Act (“Claim 5”); (6) 28 U.S.C. § 1343
(“Claim 6”); and (7) FLA. STAT. § 760.50 (“Claim 7”). Albra argues that the
district court erred in dismissing his complaint without prejudice for failure to state
2
a claim, pursuant to Fed. R. Civ. P. 12(b)(6), because he did state a claim under
each of his causes of action.
We review “dismissals pursuant to [Fed. R. Civ. P. 12(b)(6)] de novo, taking
all the material allegations of the complaint as true while liberally construing the
complaint in favor of the plaintiff.” Ellis v. Gen. Motors Acceptance Corp., 160
F.3d 703, 706 (11th Cir. 1998). The district court may only grant a Fed. R. Civ.
P. 12(b)(6) motion to dismiss where it is demonstrated “beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80
(1957). Although the threshold is “exceedingly low” for a complaint to survive a
motion to dismiss for failure to state a claim, Ancata v. Prison Health Servs., Inc.,
769 F.2d 700, 703 (11th Cir. 1985) (quotation omitted), a court nonetheless may
dismiss a complaint on a dispositive issue of law when “no construction of the
factual allegations will support the cause of action,” Marshall County Bd. of Educ.
v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
I. Claims 1, 2, and 7 – State Law Claims
Although the State of Florida and its municipalities are generally immune
from tort liability, Florida has waived its sovereign immunity “under circumstances
in which the state or agency or subdivision, if a private person, would be liable to
3
the claimant, in accordance with the general laws” of Florida. FLA. STAT.
§ 768.28(1). Even if a complaint contains adequate allegations showing that a
private person would be liable in tort, the sovereign immunity waiver does not
apply if the challenged act of the state agent was “discretionary” rather than
“operational.” Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir.
2001). An act is “discretionary” if all of the following conditions are met:
(1) the action involves a basic governmental policy, program, or
objective; (2) the action is essential to the realization or
accomplishment of that policy, program, or objective; (3) the action
requires the exercise of basic policy evaluations, judgments, and
expertise on the part of the governmental agency involved; and (4) the
governmental agency involved possesses the requisite constitutional,
statutory, or lawful authority and duty to do or make the challenged
act, omission, or decision.
Id. at 1264 (quotation and alterations omitted). Therefore, when Florida or its
municipality is sued, we must first determine whether a duty was owed to the
plaintiff such that “the circumstances alleged would subject a private person to
liability under Florida law.” Id. at 1262. If a duty is owed, we must next
determine whether “the claim is nonetheless barred by the ‘discretionary’ act
exception to the waiver of sovereign immunity.” Id. at 1263.
“To state a claim for negligence under Florida law, a plaintiff must allege
that the defendant owed the plaintiff a duty of care, that the defendant breached
that duty, and that the breach caused the plaintiff to suffer damages.” Id. at 1262.
4
The Florida Supreme Court has recognized that there is no “common law duty of
care owed to an individual with respect to the discretionary judgmental power
granted a police officer . . . to enforce the law.” Everton v. Willard, 468 So. 2d
936, 938 (Fla. 1985); see also DeShaney v. Winnebago County Dept. of Social
Services, 489 U.S. 189, 195, 109 S. Ct. 998, 1002-03, 103 L. Ed. 2d 249 (1989).
Police officers have a duty to protect the public as a whole, but do not owe the
victim of a crime any common law duty of care, absent a special duty to, or
relationship with, the victim. Lewis, 260 F.3d at 1266. The power of a police
officer to choose whether to make an arrest or enforce the law is a discretionary
function. See Everton, 468 So. 2d at 938.
To state a cause of action for negligent supervision or negligent retention
under Florida law the claimant must allege: (1) the existence of a relationship
giving rise to a legal duty to supervise; (2) negligent breach of that duty; and
(3) proximate causation of injury by virtue of the breach. See Roberson v. Duval
County School Bd., 618 So. 2d 360, 362 (Fla. Dist. Ct. App. 1993). Pursuant to
FLA. STAT. §760.50, a person with HIV is entitled to the same protections as a
disabled person, and discrimination on the basis of a person’s HIV positive status
in employment, housing, public accommodations, or governmental services is
prohibited. FLA. STAT. § 760.50(3) and (4).
5
According to FLA. STAT. § 768.28(6), an “action may not be instituted on a
claim against the state or one of its agencies or subdivisions unless the claimant
presents the claim in writing to the appropriate agency.” FLA. STAT.
§ 768.28(6)(a). Notice to the agency and written denial of the claim are
“conditions precedent to maintaining an action.” FLA. STAT. § 768.28(6)(b).
Florida courts strictly construe this notice requirement and a claimant must allege
in the complaint that he complied with the notice provisions of FLA. STAT.
§ 768.28(6). Levine v. Dade County School Bd., 442 So. 2d 210, 212-13 (Fla.
1983). When a claimant fails to allege compliance with notice provisions, the
complaint should be dismissed without prejudice and the plaintiff should be
allowed leave to amend. Commercial Carrier Corp. v. Indian River County, 371
So. 2d 1010, 1022-23 (Fla. 1979); see also Hattaway v. McMillian, 903 F.2d 1440,
1447 (11th Cir. 1990).
As to Claim 1, we conclude as a matter of law, police officers do not owe a
duty to protect individuals, absent a special relationship with the victim, but rather
owe a duty to the entire community. Lewis, 260 F.3d at 1266. Therefore, Claim 1
fails because no duty was owed to Albra to investigate his criminal claim, and
Albra did not allege that any special relationship existed between him and the
police department. Nevertheless, even if there was a duty, Claim 1 would fail
6
because the decision of whether to enforce laws by investigating a criminal
complaint is a discretionary decision, which is immune from challenge. Further, as
to Claim 2, because no duty existed to investigate Albra’s claim, we conclude that
the City did not breach a duty to supervise the officers during an investigation.
As to Claim 7, we conclude from the record that the City owed a duty to
Albra not to discriminate against him because of his HIV status. Given that the
duty not to discriminate against HIV positive persons is codified, the duty is
operational, and a plaintiff may sue a municipality for violating FLA. STAT.
§ 760.50. Albra, however, failed to allege in his complaint that he had complied
with the notice provisions of FLA. STAT. § 768.28(6). Therefore, his suit is
barred by sovereign immunity because notice to the municipality is a condition
precedent to bringing a lawsuit, and the district court properly dismissed the
complaint.
II. Claim 3 and Part of Claim 4 – 42 U.S.C. § 1983
A plaintiff alleging a 42 U.S.C. § 1983 violation must prove “that he or she
was deprived of a federal right by a person acting under color of state law.” Griffin
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). “A person acts under
color of state law when he acts with authority possessed by virtue of his
employment with the state.” Id. The police officers and other City employees in
7
this case were all acting under color of state law, given that they were acting in
their capacity as employees of the City. Therefore, it is left to be determined
whether Albra was deprived of a constitutional or statutory right. See Griffin, 261
F.3d at 1303. Albra alleged that his rights were violated under the ADA and
Rehabilitation Act, that the City negligently trained the police officers, and that the
City conspired with its employees to violate his rights.
ADA
Pursuant to the ADA, “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. A disability under the
ADA is defined as “(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.
§ 12102(2). The Supreme Court has declined to address whether an HIV infection
is a per se disability under the ADA, but has held that HIV could be considered a
disability in some cases. Bragdon v. Abbott, 524 U.S. 624, 641-42, 118 S. Ct.
2196, 2206-07, 141 L. Ed. 2d 540 (1998).
The record here demonstrates that Albra did not allege a prima facie case
8
under the ADA. First, he failed to allege that he was disabled under the ADA’s
definition of disability and, therefore, failed to allege the first prong of a prima
facie case for deprivation of a right under the ADA. Second, Albra was not denied
public benefits because the City did not have a duty to investigate his claim.
Albra’s claim also fails because he does not allege nor does he provide any facts
from which we might infer that the officers knew of his HIV status. Thus, Albra
failed to establish any causal connection between the officers’ refusal to investigate
his claim and his illness. Accordingly, we conclude that Albra failed to state a
discrimination claim under the ADA.
Rehabilitation Act
Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C. § 794(a). The Rehabilitation Act defines
“disability” as a “physical or mental impairment that constitutes or results in a
substantial impediment to employment” or “a physical or mental impairment that
substantially limits one or more major life activities.” 29 U.S.C. § 705(9).
The record here demonstrates that Albra failed to plead a proper claim under
9
the Rehabilitation Act. First, just as Albra failed to show that he was disabled
under the ADA, he also failed to show that he was disabled under the
Rehabilitation Act. Second, Albra failed to allege that any of the City employees
knew that he was HIV positive and that he was denied services because of his HIV
status. Because Albra failed to allege one or more prongs of a prima facie case
under the Rehabilitation Act, he did not allege a claim under the Rehabilitation
Act.
Negligent Training
Municipal liability may be
based on a claim of inadequate training where a municipality’s failure
to train its employees in a relevant respect evidences a deliberate
indifference to the rights of its inhabitants such that the failure to train
can be properly thought of as a city policy or custom that is actionable
under § 1983.
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489-90 (11th Cir. 1997)
(quotations omitted). A “policy” is an officially adopted decision of the
municipality, or a decision of a municipal officer of such a rank that he may be
said to be acting on the municipality’s behalf. Id. at 489. “A custom is a practice
that is so settled and permanent that it takes on the force of law.” Id. Deliberate
indifference is exhibited when a “municipality knew of a need to train and/or
supervise in a particular area and the municipality made a deliberate choice not to
10
take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
Unless a plaintiff shows that the municipality had notice of the need to train, the
plaintiff has not shown deliberate indifference. Id. at 1351. Furthermore, vague
and conclusory allegations in a complaint without specific factual support are
insufficient to support a civil rights complaint because such complaints are held to
a higher pleading standard, and unsupported conclusions of law do not meet that
standard. See GJR Invs., Inc. v. County of Escambia, Florida, 132 F.3d 1359, 1367
(11th Cir. 1998); Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003).
Here, we conclude that Albra’s claim fails. First, Albra failed to allege in
Claim 3 that the City knew of a need to train its employees in processing citizen
complaints.1 Second, although Albra alleged that police officers had a custom of
refusing to investigate claims, Albra did not provide any factual support to suggest
that department officials or the City was on notice of this custom. Further, Albra’s
complaint contains only conclusions of law without any factual support and,
therefore, does not meet the higher pleading standard for a civil rights complaint
and fails to state a proper claim for negligent training.
1
Albra did allege in Claim 2, however, that the City was on notice that it had negligently
trained its police officers. (See R1-24 at 5). Nevertheless, this vague allegation did not meet the
higher pleading standard for a civil rights complaint and should not serve to meet the first prong
of a prima facie case for negligent training. See GJR Invs., Inc., 132 F.3d at 1367; Gonzalez,
325 F.3d at 1235; Gold, 151 F.3d at 1350-51.
11
Conspiracy
To establish a prima facie case of conspiracy under 42 U.S.C. § 1983, the
plaintiff must allege, among other things, that the defendants “reached an
understanding to violate his rights.” See Rowe v. City of Fort Lauderdale, 279
F.3d 1271, 1283 (11th Cir. 2002) (quotation and alteration omitted) (in a summary
judgment context). “The plaintiff does not have to produce a smoking gun to
establish the understanding or willful participation required to show a conspiracy,
but must show some evidence of agreement between the defendants.” Id. at 1283-
84 (quotations and citation omitted). To allege a conspiracy, a plaintiff must make
“particularized allegations” that are more than vague or conclusory. GJR Inv., Inc.,
132 F.3d at 1370; Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984).
Under the doctrine of intracorporate conspiracy, “a corporation cannot
conspire with its employees, and its employees, when acting in the scope of their
employment, cannot conspire among themselves” because a corporation and its
employees are considered to be “a single legal actor.” McAndrew v. Lockheed
Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000). The intracorporate
conspiracy doctrine also applies to public, governmental entities. Dickerson v.
Alachua County Comm’n, 200 F.3d 761, 767 (11th Cir. 2000).
The record demonstrates that Albra failed to state a claim of conspiracy in
12
his complaint. First, Albra failed to allege that any City employee agreed to violate
his rights, thus failing to allege a prima facie case of conspiracy. Second, Albra
only made vague allegations that a conspiracy existed and failed to include any
details about the alleged conspiracy. Third, the intracorporate conspiracy doctrine
applies to the City and bars Albra’s conspiracy claim. Accordingly, the district
court properly dismissed the claim.
Because Albra failed to allege any proper ADA, Rehabilitation Act,
negligent training, or conspiracy claim, his 42 U.S.C. § 1983 claim fails, and the
district court did not err in dismissing Claim 3 or the part of Claim 4 addressing
conspiracy.
III. Claims 4 and 5 – Retaliation under the ADA and Rehabilitation Act
The ADA states that “[n]o person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation
under the ADA, a plaintiff must show that (1) he participated in a statutorily
protected activity or expression; (2) he suffered an adverse action; and (3) the
adverse action was related to the protected activity. Shotz v. City of Plantation,
13
Fla., 344 F.3d 1161, 1180 (11th Cir. 2003). Not every unkind action is sufficiently
adverse. Id. at 1181. Rather, “an ADA plaintiff must demonstrate that a
reasonable person in his position would view the action in question as adverse.”
Id. (quotation and alteration omitted).
The anti-discrimination provision of the Rehabilitation Act incorporates the
anti-retaliation provision of the ADA. 29 U.S.C. § 794(a) and (d); 42 U.S.C.
§ 12203(a). Therefore, the prima facie case for retaliation under the Rehabilitation
Act is the same as that under the ADA. See Holbrook v. City of Alpharetta,
Georgia., 112 F.3d 1522, 1526 n.2 (11th Cir. 1997) (stating that ADA
discrimination law applies to the Rehabilitation Act).
We conclude from the record that Albra failed to allege a proper retaliation
claim. First, he failed to allege that he had engaged in a protected activity, thus
failing the first prong of a prima facie case. Second, these alleged retaliatory
actions seem wholly unrelated to any action Albra may have taken in opposition to
allegedly unlawful actions on the part of the City. Accordingly, Albra failed to
state a claim for retaliation under the ADA or the Rehabilitation Act, and the
district court did not err by dismissing this claim.
IV. Claim 6 – 28 U.S.C. § 1343
The statutory language of 28 U.S.C. § 1343 sets out the jurisdiction of
14
district courts in civil actions. 28 U.S.C. § 1343(a). To determine whether 28
U.S.C. § 1343 creates a private right of action, the primary inquiry is Congress’s
intent when enacting the statute. Thompson v. Thompson, 484 U.S. 174, 179, 108
S. Ct. 513, 516, 98 L. Ed. 2d 512 (1988). The Supreme Court has stated that the
four-part test created in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L.
Ed. 2d 26 (1975), may be used as a guide to determining Congress’s intent.
Thompson, 484 U.S. at 179, 108 S. Ct. at 516. The Cort factors are:
First, is the plaintiff one of the class for whose especial benefit the
statute was enacted – that is, does the statute create a federal right in
favor of the plaintiff? Second, is there any indication of legislative
intent, explicit or implicit, either to create such a remedy or to deny
one? Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff? And
finally, is the cause of action one traditionally relegated to state law,
in an area basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on federal law?
McDonald v. S. Farm Bureau Life Ins. Co., 291 F.3d 718, 722 (11th Cir. 2002)
(quotation omitted). “The bar for showing legislative intent is high.” Id. at 723.
Applying the Cort factors, we conclude that 28 U.S.C. § 1343 does not
create a private right of action, and Albra’s claim pursuant to the statute failed to
state a claim. Accordingly, the district court did not err by dismissing this claim.
Conclusion
After reviewing the record and the parties’ briefs, we discern no error in the
15
district court’s dismissal without prejudice of Albra’s complaint for failure to state
a claim. Accordingly, we affirm the judgment of dismissal.
AFFIRMED.
16
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-582
Filed: 15 November 2016
Wake County, Nos. 14 JA 12, 13, & 14
IN THE MATTER OF: J.S., D.S., and B.S.
Appeal by respondent-mother from order entered 8 April 2016 by Judge Monica
M. Bousman in Wake County District Court. Heard in the Court of Appeals 20
October 2016.
Ellis & Winters, LLP, by Lenor Marquis Segal, for Guardian ad Litem-appellee.
Leslie Rawls for respondent-appellant.
ZACHARY, Judge.
Respondent-mother L.M. and respondent-father B.S. (“father”) are the parents
of three sons, J.S., D.S., and B.S.1 Respondent-mother is also the mother of D.M.,
whose custody is not at issue in this appeal.2 Respondent-mother appeals from the
entry of a permanency planning order that granted father legal and physical custody
of the children, with respondent-mother to have visitation. On appeal, respondent-
mother argues that in entering its permanency planning order, the trial court failed
to comply with the requirements of N.C. Gen. Stat. § 7B-1000(a) (2015). For the
1 To protect their privacy, we refer to the minor children by their initials.
2 Because D.M.’s custody is not the subject of this appeal, references in this opinion to “the
children” will refer to J.S., D.S., and B.S., unless otherwise specified.
IN RE: B.S., D.S., J.S.
Opinion of the Court
reasons that follow, we conclude that respondent-mother’s arguments lack merit and
that she is not entitled to relief.
I. Factual and Procedural History
In 2009, respondent-mother gave birth to a daughter, D.M., who has a different
father than respondent-mother’s other children. In 2011, twin boys were born to
respondent-mother and father, and in 2012 the couple had another son. In 2013, the
Wake County Department of Human Services (DHS) became involved with the family
and on 14 January 2014, DHS filed petitions alleging that all four of respondent-
mother’s children were neglected. DHS obtained nonsecure custody of the children
on 7 February 2014. On 26 February 2014, the trial court entered an order
adjudicating the children to be neglected. The parents separated and a dispositional
order was entered on 7 April 2014, continuing the children’s legal custody with DHS
and their physical placement with respondent-mother. Permanency planning orders
were entered in 2014 and 2015, which provided that the permanent plan for the
children was to be reunited with one of their parents.
In February 2015, DHS changed the physical placement of the children from
respondent-mother to father, who was living with his parents. Between February
2015 and April 2016, the children lived with their father and paternal grandparents,
but visited overnight with respondent-mother several days a week. On 8 April 2016,
the trial court entered three orders in this case: a permanency planning order, an
-2-
IN RE: B.S., D.S., J.S.
Opinion of the Court
order transferring jurisdiction over the case from juvenile court to civil court, and a
civil custody order. Regarding the transfer from juvenile to civil court, we note that:
Although both juvenile proceedings and custody
proceedings under Chapter 50 are before the District Court
division, jurisdiction is conferred and exercised under
separate statutes for the two types of actions. For that
reason, we will refer to the District Court in this opinion as
either the “juvenile court” or the “civil court” to avoid
confusion. The “juvenile court” is the District Court
exercising its exclusive, original jurisdiction in a matter
pursuant to N.C. Gen. Stat. § 7B-200(a); the “civil court” is
the District Court exercising its child custody jurisdiction
pursuant to N.C. Gen. Stat. § 50-13.1, et seq.
Sherrick v. Sherrick, 209 N.C. App. 166, 169, 704 S.E.2d 314, 317 (2011). In its 8
April 2016 orders, discussed in detail below, the trial court (1) terminated the
jurisdiction of juvenile court over this case and transferred jurisdiction to civil court
for entry of a civil custody order; (2) entered a civil custody order awarding father the
legal and primary physical custody of the children and granting respondent-mother
visitation privileges; and (3) entered a permanency planning order functionally
identical to the civil custody order. On 12 April 2016, respondent-mother entered a
notice of appeal from the permanency planning order. Respondent-mother did not
appeal the civil custody order or the order transferring jurisdiction pursuant to N.C.
Gen. Stat. § 7B-911.
II. Standard of Review
-3-
IN RE: B.S., D.S., J.S.
Opinion of the Court
Our review of a permanency planning order entered pursuant to N.C. Gen.
Stat. § 7B-906.1 is “limited to whether there is competent evidence in the record to
support the findings and whether the findings support the conclusions of law. The
trial court’s findings of fact are conclusive on appeal when supported by any
competent evidence, even if the evidence could sustain contrary findings.” In re J.H.,
__ N.C. App. __, __, 780 S.E.2d 228, 238 (2015) (internal quotations omitted). Factual
findings that are not challenged on appeal are deemed to be supported by the evidence
and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991). “In choosing an appropriate permanent plan under N.C. Gen. Stat. § 7B-
906.1 [(2015)], the juvenile’s best interests are paramount. We review a trial court’s
determination as to the best interest of the child for an abuse of discretion.” J.H., __
N.C. App. at __, 780 S.E.2d at 238 (2015) (internal quotation omitted).
III. Discussion
On appeal, respondent-mother acknowledges the standard of review of a
permanency planning order. However, in her appellate brief, respondent-mother does
not challenge the evidentiary support for any specific finding of fact or argue that the
trial court’s conclusions of law are not supported by its findings of fact. Nor does
respondent-mother argue that it is not in the best interest of the children for their
legal and primary physical custody to be with their father, or that the trial court
failed to follow the requirements of N.C. Gen. Stat. § 7B-906.1. Although we could
-4-
IN RE: B.S., D.S., J.S.
Opinion of the Court
affirm the trial court’s order on the basis of respondent-mother’s failure to make a
viable argument challenging the permanency planning order, because of the
importance of a child custody order, we will review respondent-mother’s appellate
arguments.
On appeal, respondent-mother focuses solely upon the fact that the
permanency planning order changed the visitation schedule set out in the previous
permanency planning order, reducing respondent-mother’s visitation with the
children. Respondent-mother argues that the permanency planning order failed to
comply with N.C. Gen. Stat. § 7B-1000(a) (2015), which provides in relevant part that:
Upon motion in the cause or petition, and after notice, the
court may conduct a review hearing to determine whether
the order of the court is in the best interests of the juvenile,
and the court may modify or vacate the order in light of
changes in circumstances or the needs of the juvenile.
The plain language of § 7B-1000(a) states that it is applicable to an order
entered after a review hearing at which the trial court considers whether to modify
or vacate a previously entered order “in light of changes in circumstances or the needs
of the juvenile.” Respondent-mother devotes most of her appellate brief to an
argument that the trial court erred by failing to make findings of fact demonstrating
that there was a change in circumstances between the entry of the prior permanency
planning order and the order from which respondent-mother appealed. The premise
of respondent-mother’s argument is that entry of a permanency planning order is
-5-
IN RE: B.S., D.S., J.S.
Opinion of the Court
governed by N.C. Gen. Stat. § 7B-1000. However, the permanency planning order
states, appropriately, that it is entered pursuant to N.C. Gen. Stat. § 7B-906.1, and
respondent-mother fails to articulate any legal basis for applying N.C. Gen. Stat. §
7B-1000 to a permanency planning order that was entered under N.C. Gen. Stat. §
7B-906.1. We conclude that entry of a permanency planning order is governed by
N.C. Gen. Stat. § 7B-906.1 and not by N.C. Gen. Stat. § 7B-1000.
Moreover, respondent-mother fails to acknowledge or discuss the implications
of the fact that she appealed only from the permanency planning order, and did not
appeal the order transferring jurisdiction from juvenile court to civil court, or the civil
custody order. In the 8 April 2016 order that was entered pursuant to N.C. Gen. Stat.
§ 7B-911 (2015), the trial court stated in relevant part:
2. That this Court has previously determined that there is
no longer a need for this file to remain open, [as DHS] is no
longer actively involved in this case and the jurisdiction of
this Court should terminate.
3. That the Juveniles’ status and the issues in this case are
in the nature of a private custody agreement or dispute and
there is not a need for continued State intervention on
behalf of the juvenile[s] through a Juvenile Court
proceeding.
That the Court is awarding custody to a parent.
Wherefore, the jurisdiction of this Court is hereby
terminated and the legal status of the juvenile[s] and the
custodial rights of the parties shall be governed by a civil
custody order entered pursuant to [N.C. Gen. Stat. §] 7B-
911 as follows:
-6-
IN RE: B.S., D.S., J.S.
Opinion of the Court
1. That a civil Order shall be entered in a new Civil
Domestic file and the Clerk is hereby directed to treat said
Order as the initiation of a civil action for custody and to
open an appropriate file. . . .
On 8 April 2016, the trial court also entered the civil custody order referenced
in its N.C. Gen. Stat. § 7B-911 order. In its custody order, the trial court concluded
that it was in the best interest of the children for father to have their sole legal
custody and primary physical custody, and for respondent-mother to have visitation
privileges. The permanency planning order entered by the trial court the same day,
from which respondent-mother has appealed, incorporates the civil custody order and
makes the same determinations regarding custody of the children, although the civil
custody order includes additional details regarding the parties’ future interactions
and the visitation schedule.
Respondent-mother does not argue that the permanency planning order
affected or invalidated the civil custody order. Respondent-mother has not appealed
from the civil custody order or from the order entered pursuant to N.C. Gen. Stat. §
7B-911, and does not argue that the trial court erred in these orders. As a result,
even if this Court were to conclude that the trial court had erred in its permanency
planning order, the civil custody order would remain in effect, mooting the effect of
respondent-mother’s challenge to the permanency planning order. Respondent-
mother does not argue that the permanency planning order might carry collateral
-7-
IN RE: B.S., D.S., J.S.
Opinion of the Court
consequences such that, notwithstanding her failure to challenge the custody order,
the issue of the propriety of the permanency planning order is not moot.
We conclude that respondent-mother’s challenge to the permanency planning
order on the basis of its failure to comply with N.C. Gen. Stat. § 7B-1000 lacks merit,
and that the trial court’s entry of both an order ending the jurisdiction of juvenile
court and of a civil custody order renders moot the merits of the permanency planning
order. Accordingly, the trial court’s order is
AFFIRMED.
Judges STROUD and McCULLOUGH concur.
-8-
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 20, 2007*
Decided October 11, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-1495
GWENESTHER F. MANNING, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 04 C 7010
JOHN E. POTTER,
Postmaster General, United States Robert W. Gettleman,
Postal Service Judge.
Defendant-Appellee.
ORDER
Gwenesther Manning contends that her employer, the United States Postal
Service, violated the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 623, the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title VII of the Civil
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 07-1495 Page 2
Rights Act of 1964, 42 U.S.C. § 2000e, through a host of adverse actions that it
allegedly took against her. Manning also brings claims under the Federal
Employment Compensation Act (FECA), 5 U.S.C. § 8103, and the Federal Tort
Claim Act (FTCA), 28 U.S.C. § 2674. The district court granted summary judgment
in favor of the Postal Service, and for the reasons that follow, we affirm.
As the party opposing a motion for summary judgment in the district court,
Manning was required to file a concise statement identifying any disputes with the
moving party’s statement of material facts. See N.D. Ill. Loc. R. 56.1(b)(3). Her
noncompliance with this rule—Manning’s submission contained more than 400
paragraphs consisting of legal conclusions, opinions, immaterial facts, and facts
unsupported by record citations—led the district court to disregard Manning’s 56.1
responses to the extent that they violated the local rule. In doing so, the district
court did not abuse its discretion, see Cady v. Sheahan, 467 F.3d 1057, 1060-61 (7th
Cir. 2006), and we will similarly rely on the parties’ statements of material facts to
the extent they comply with the local rule.
In August 1998 the Postal Service hired Manning as a part-time flexible
letter carrier, a position that does not entitle the worker to a regular work schedule
or guaranteed hours. At the time she was hired, Manning was forty-one years old
and had no medical limitations. In January 1999 Manning reported experiencing
pain in her feet, so the Postal Service placed her on limited duty. She was also later
diagnosed with major depressive disorder and panic disorder. Manning eventually
filed a claim for worker’s compensation, which was granted in 2001. Although she
is still employed by the Postal Service, Manning has not worked since 2001; she
continues to receive 75% of her salary through worker’s compensation.
Manning’s employment relationship with the Postal Service has been
contentious since its inception. Shortly after she was hired, Manning filed her first
complaint of discrimination with the Postal Service’s Equal Employment
Opportunity office, alleging that she was wrongfully asked to leave the office.
Manning would go on to file six additional complaints; among the issues she raised
was that the Postal Service retaliated against her by failing to provide her with
movie passes that other employees had received, by changing the vehicle assigned
to her route, and by altering her work hours. After exhausting her administrative
remedies, Manning brought this lawsuit in August 2005.
In her first amended complaint, Manning alleged that the Postal Service
(1) violated the ADEA by treating younger employees more favorably; (2) failed to
reasonably accommodate her disabilities; (3) created a hostile work environment
because of her age and disability; (4) retaliated against her in violation of Title VII;
(5) failed to authorize medical treatment in violation of the FECA; and (6) refused to
refund insurance premiums she had paid, which, according to Manning, constituted
No. 07-1495 Page 3
a tort. The Postal Service moved for summary judgment, which the district court
granted after determining that Manning could not identify similarly situated,
younger employees who were treated more favorably and that Manning presented
no evidence supporting any of her other claims. Manning timely moved to alter or
amend the judgment under Rule 59(e), and after the district court denied that
motion, she moved for relief from judgment under Rule 60(b)(3), which the district
court also denied.
On appeal Manning largely rehashes the arguments she made to the district
court. She also argues that the district court abused its discretion in denying her
motions under Rule 59(e) and Rule 60(b)(3). We review de novo the district court’s
grant of summary judgment. See Perez v. Illinois, 488 F.3d 773, 776 (7th Cir. 2007).
A party opposing summary judgment may not rest on mere allegations, but must
introduce affidavits or other evidence setting forth specific facts showing a genuine
issue for trial. Anders v. Waste Mgmt. of Wis. Inc., 463 F.3d 670, 675 (7th Cir.
2006).
Manning first contends that the Postal Service violated the ADEA. She does
not attempt to prove discrimination through the direct method, so she must proceed
under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). To satisfy this burden, Manning must show that (1) she belongs to a
protected class; (2) she performed her job satisfactorily; (3) she suffered a materially
adverse employment action; and (4) similarly situated employees outside of her
protected class were treated more favorably. See Barricks v. Eli Lilly and Co., 481
F.3d 556, 559 (7th Cir. 2007). Manning cannot show that she suffered a materially
adverse employment action. She alleges that specific younger employees were
“working more hours,” but because Manning’s position as a part-time flexible letter
carrier entitled her to only four hours of work per day, it is not clear how working
fewer than forty hours per week could amount to a materially adverse employment
action taken because of her age.
Manning’s claim that the Postal Service failed to accommodate her disability
in violation of the Rehabilitation Act similarly fails. Suffering an adverse
employment action is also an element of a prima facie case under the Rehabilitation
Act. See Scheerer v. Potter, 443 F.3d 916, 918 (7th Cir. 2006). Like her ADEA
claim, the types of actions that Manning complains of—denials of leave requests
and changes in her work schedule—do not constitute adverse employment actions,
given her position as a part-time, flexible carrier. See Griffin v. Potter, 356 F.3d
824, 829 (7th Cir. 2004) (defining adverse employment action as one that
“significantly alters the terms and conditions of the employee’s job”). We therefore
conclude that the district court properly granted summary judgment on these
claims.
No. 07-1495 Page 4
Manning also claims that the Postal Service subjected her to a hostile work
environment, which is created when the employer’s conduct is “sufficiently severe or
pervasive to alter the conditions of the [victim’s] employment and create an abusive
working environment.” See Patton v. Keystone RV Co., 455 F.3d 812, 815-16 (7th
Cir. 2006) (internal quotations omitted). Among the factors that are important in
evaluating whether harassment is pervasive or severe are “the frequency, severity,
and threatening or humiliating nature of the discriminatory conduct and whether it
unreasonably interferes with the employee’s work performance.” See Mannie v.
Potter, 394 F.3d 977, 983 (7th Cir. 2005) (citation omitted). The actions that the
Postal Service allegedly took against Manning, such as changing her daily starting
time or reducing the number of hours that she worked, do not rise to the level of
actionable harassment. See Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th
Cir. 2001) (noting that rude or unfair behavior does not rise to level of “legally
redressible discrimination”).
Next Manning argues that the Postal Service retaliated against her in
violation of Title VII. Title VII’s anti-retaliation provision prohibits employers from
discriminating against employees for opposing discrimination on the basis of race,
color, religion, sex, or national origin. See 42 U.S.C. § 2000e-3(a); Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007). Here although Manning
generally alleges that she was retaliated against, she has presented no evidence to
establish that any actions were taken because she opposed discrimination that she
reasonably believed violated Title VII. See Hamner v. St. Vincent Hosp. and Health
Care Ctr., Inc., 224 F.3d 701, 704-07 (7th Cir. 2000). Therefore, we conclude that
the district court properly granted summary judgment on this claim.
Manning next argues that the Postal Service failed to promptly authorize her
medical treatment after her foot injury and attempted to have her worker’s
compensation claim terminated in violation of the FECA. The FECA authorizes the
Secretary of the Department of Labor to furnish medical services to federal
employees who are injured on the job. See 5 U.S.C. § 8103. Manning cannot sue the
Postal Service for violating the FECA because, aside from constitutional challenges
not alleged by Manning, the Secretary’s decisions under the FECA are not subject
to judicial review. See 5 U.S.C. § 8128(b); Czerkies v. U.S. Dep’t of Labor, 73 F.3d
1435, 1437-42 (7th Cir. 1996) (en banc). Manning also argues that the Postal
Service violated the FTCA by refusing to refund her insurance premiums, but, as
the district court noted, Manning failed to exhaust her administrative remedies.
Thus summary judgment on these claims was warranted as well.
Finally, Manning’s motions under 59(e) and 60(b)(3) merely reargued the
merits of her underlying claim. Because we conclude that the district court
No. 07-1495 Page 5
properly granted summary judgment on those claims, we reject Manning’s
contention that the court abused its discretion by denying her motions.
AFFIRMED.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ROBERT DOUGLAS ROWLEY, IV, Appellant.
No. 1 CA-CR 17-0395
FILED 9-26-2019
Appeal from the Superior Court in Maricopa County
No. CR2014-139487-001
The Honorable Jay R. Adleman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Appellee
DuMond & Doran, P.L.L.C., Phoenix
By Samantha Kelli DuMond
Counsel for Appellant
STATE v. ROWLEY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
J O N E S, Judge:
¶1 Robert Douglas Rowley, IV, appeals his convictions and
sentences for child molestation and sexual abuse. 1 For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 When the victim was twelve years old, she frequently babysat
Rowley’s children at his home.2 In April 2008, Rowley touched the victim’s
breasts and vagina, and also had oral sex and sexual intercourse with her.
DNA evidence later confirmed the sexual contact.
¶3 A jury convicted Rowley of child molestation and sexual
abuse, and the trial court sentenced him to 13.5 years’ imprisonment and
lifetime probation. Rowley timely appealed his convictions and sentences.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031,
and -4033(A)(1).3
1 Seemingly citing Arizona Revised Statutes (A.R.S.) § 12-341.01,
Rowley also states an intent to claim attorneys’ fees. That claim, however,
is only valid in certain civil proceedings and does not apply to criminal
proceedings. See A.R.S. § 12-341.01.
2 We view the facts in a light most favorable to sustaining the verdicts.
State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
3 Absent material changes from the relevant date, we cite the current
version of statutes and rules.
2
STATE v. ROWLEY
Decision of the Court
DISCUSSION
I. The Admission of Nurse’s Testimony Was Not Reversible
Error.
¶4 After the victim informed law enforcement of Rowley’s
conduct, she met with a forensic nurse for a physical examination. The
victim told the nurse that Rowley had sex with her and answered other
questions regarding the sexual contact. The nurse testified regarding the
victim’s statements. Rowley objected to this testimony as inadmissible
hearsay. The court overruled his objection, finding the statements
admissible because they were made for a medical purpose. See Ariz. R.
Evid. 803(4). Rowley again challenges their admission on appeal.
¶5 We review a trial court’s evidentiary rulings for an abuse of
discretion. State v. Fish, 222 Ariz. 109, 114, ¶ 8 (App. 2009). If we find an
abuse of discretion, we will not reverse if the error is harmless. State v.
Sosnowicz, 229 Ariz. 90, 98, ¶ 27 (App. 2012). An error is harmless “if the
[S]tate in light of all of the evidence, can establish beyond a reasonable
doubt, that the error did not contribute to or affect the verdict.” Id. (internal
quotations omitted).
¶6 Here, any potential error was harmless. After the nurse’s
testimony, the victim herself testified regarding the same statements she
made to the nurse. Rowley had and took the opportunity to cross-examine
the victim. The admission of the alleged hearsay statements, if error, was
harmless. See State v. Hoskins, 199 Ariz. 127, 144, ¶ 66 (2000) (finding the
admission of an alleged hearsay statement to be harmless when declarant
testified to the statement and was cross-examined). Moreover, the court
also instructed the jury that it could not consider the nurse’s testimony
regarding the victim’s statements for identification purposes, further
limiting any prejudicial effect. Even if the court committed error by
admitting the alleged hearsay statements, it is evident — beyond a
reasonable doubt — that they did not affect the verdicts. And on appeal,
Rowely does not argue the admissibility of the nurse’s testimony under
Arizona Rule of Evidence 803(4) was prejudicial.
II. The Court Did Not Abuse Its Discretion By Denying The
Motion For Mistrial.
¶7 At the time of the trial, the victim was living out-of-state. The
State believed the victim would testify as part of its case-in-chief. On the
first day of jury selection, however, the State notified the court and Rowley
that it had a “good-faith belief” that the victim would not be available to
3
STATE v. ROWLEY
Decision of the Court
testify. The State told the jury during its opening statement that the victim
would not testify. Two days later — on a Friday afternoon — the State
informed the court and Rowley that the victim would be available to testify
on the following Monday. Rowley moved for a mistrial, arguing that he
had premised his defense on the victim not being available to testify. The
court denied his motion and permitted the victim to testify.
¶8 On appeal, Rowley argues the denial of his mistrial motion
was error. We review the denial of a motion for mistrial for an abuse of
discretion. State v. Welch, 236 Ariz. 308, 314, ¶ 20 (App. 2014). Mistrial,
which is “the most dramatic remedy for trial error,” should only be granted
when “justice will be thwarted unless the jury is discharged and a new trial
granted.” State v. Dann, 205 Ariz. 557, 570, ¶ 43 (2003) (internal quotations
omitted).
¶9 In this case, we find neither error nor resulting prejudice.
Although Rowley argues that “the shift in the victim’s status entirely
changed the landscape of the trial,” the State identified the victim as a
potential witness more than two years before trial. The State also indicated
that the victim would testify throughout pretrial proceedings. Two weeks
before trial, Rowley acknowledged the possibility that the victim may
testify and suggested that he was preparing his defense accordingly. He
had ample time to prepare for cross-examination and identify any
witnesses to counter the victim’s anticipated testimony. Further, the
victim’s availability was to Rowley’s advantage as it enabled him to
exercise his right to confrontation.
¶10 Even though the State told the jury that the victim would not
testify, the evidence received at trial is not confined to what was stated
during opening statements. See State v. Pedroza-Perez, 240 Ariz. 114, 116-17,
¶ 12 (2016) (“Opening statements are predictions about what the evidence
will show. At trial, things do not always go as planned. Witnesses
sometimes fail to appear, recant, change their stories, or even die before
trial.”). The State stated it had a good faith belief that the victim would not
appear for trial. We find no evidence — and Rowley cites none — to
suggest the State’s misstatement during the opening statement was
intentional or made in bad faith. Based on the record, the denial of the
mistrial motion was not an abuse of discretion.
III. Sufficient Evidence Supports the Convictions.
¶11 As stated before, Rowley was convicted of child molestation
and sexual abuse. At trial, a laboratory technician testified that he
4
STATE v. ROWLEY
Decision of the Court
conducted a DNA analysis of swabs taken from the victim and swabs taken
from Rowley. The analysis revealed that the DNA profile from the victim’s
external genitals matched Rowley’s DNA profile. More specifically, the
external genital DNA profile matched Rowley’s YSTR profile. A YSTR
profile refers to a match with Rowley’s Y chromosome. A YSTR profile is
not specific to one male; a person’s father or brother would share the same
YSTR profile. Since the matched YSTR profile does not explicitly identify
Rowley, he argues the State presented insufficient evidence to support his
convictions.
¶12 We review the sufficiency of evidence de novo. State v. West,
226 Ariz. 559, 562, ¶ 15 (2011). When reviewing the evidence, we assess
whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. at ¶ 16.
¶13 In this case, sufficient evidence supports the child molestation
conviction. The State was required to prove the defendant “intentionally
or knowingly engag[ed] in . . . sexual contact . . . with a child who is under
fifteen years of age.” A.R.S. § 13-1410(A). The victim testified that, when
she was eleven or twelve years old, Rowley intentionally placed his finger
on her vagina in a sexual manner. Again, the DNA profile from the victim’s
external genitals matched Rowley’s YSTR profile. Although the matched
YSTR profile was not specific to Rowley, it did match a male in his
immediate family, which would include Rowley. The victim stated she did
not have sexual relations with Rowley’s brothers or his father. A rational
jury could have accepted the victim’s testimony as truthful and found the
essential elements of the crime to be proven.
¶14 The record also supports the conviction for sexual abuse.
Sexual abuse, as relevant here, requires proof that the defendant
“intentionally or knowingly engag[ed] in sexual contact” involving only the
female breast with another person who is under fifteen years of age. See
A.R.S. § 13-1404(A). The victim testified that, after the sexual contact, she
told the forensic nurse that the defendant had made oral contact with her
breasts. The DNA evidence corroborated her report; a swab of her right
breast contained Rowley’s DNA. In contrast to the YSTR profile, this DNA
profile was specific to Rowley. The technician testified that the chances of
this DNA profile matching any other person’s profile was extremely low.
We find no error.
5
STATE v. ROWLEY
Decision of the Court
CONCLUSION
¶15 Rowley’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
6
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985 F.2d 574
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.Early Efrain RODRIGUEZ-HAYCERTH, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-70081.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 15, 1993.*Decided Feb. 8, 1993.
Petition to Review a Decision of the Immigration and Naturalization Service; No. Ala-dsp-cfq.
I.N.S.
PETITION GRANTED.
Before ALDISERT,** GOODWIN and FLETCHER, Circuit Judges.
1
MEMORANDUM***
2
In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), a Nicaraguan national and her two daughters appealed to the Board of Immigration Appeals an adverse decision of an immigration judge who had denied the aliens' request for asylum or withholding of deportation. The aliens contended that they would be persecuted because of their stated anti-Sandinista sentiments were they to return to their homeland. In denying the appeal, the Board took administrative notice "that the Sandinista Party no longer governs Nicaragua." The Board did not give prior notification of its taking notice of the Nicaragua government change. We granted the petition for review and held that the failure to give such notification constituted a denial of due process. Castillo-Villagra controls the outcome of the present petition for review by Early Efrain Rodriguez-Haycerth.
3
Rodriguez-Haycerth, also a citizen of Nicaragua, entered the United States illegally on July 23, 1988. Upon being apprehended by officials of the Immigration and Naturalization Service, he applied for asylum or, alternatively, for withholding of deportation, contending that he would be persecuted if returned to Nicaragua. The Board of Immigration Appeals denied his application and ordered him deported, reasoning that his fear of persecution was not well-founded in light of the fall of the Sandinista government of Nicaragua. As in Castillo-Villagra, the Board applied the doctrine of administrative notice and found as a fact that the Sandinista Party no longer governs Nicaragua. Rodriguez-Haycerth now petitions this court for review of that decision.
4
The Board's order was dated January 2, 1991. On February 4, 1991 a timely petition for review was filed. 8 U.S.C. § 1105a(a)(1) (Prior to January 1, 1991 the limitations period for filing petitions for review was six months; for petitions filed thereafter the limitations period is 90 days). Accordingly, we have jurisdiction.
5
Our review of the Board's decision is governed by Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), which held (1) the opportunity to move to reopen the Board's decision in order to present evidence to rebut the administrative notice finding as provided by 8 C.F.R. §§ 3.2, 3.8, INS v. Abudu, 485 U.S. 94, 97-98 (1988), and by Rogue-Carranza v. INS, 778 F.2d 1373, 1373-74 (9th Cir.1985), was "inadequate" to satisfy due process, and (2) "[t]he Board erred in taking notice of the change of government without providing the petitioners an opportunity to rebut the noticed facts." 972 F.2d at 1029.
6
Because the Board improperly took administrative notice in this case, we must vacate its decision and remand under Castillo-Villagra. For the purposes of this appeal, we do not pass on the sufficiency of the evidence adduced by petitioner in support of his requests for asylum and withholding of deportation. We reserve judgment on this issue until the Board affords petitioner an opportunity to show cause why administrative notice should not be taken, or to supplement the record in order to rebut noticed facts in full compliance with his due process rights under the Fifth Amendment.
7
The petition for review is GRANTED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
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323 Md. 514 (1991)
594 A.2d 99
R & T CONSTRUCTION COMPANY ET AL.
v.
THOMAS CLAUDE JUDGE.
No. 97 September Term, 1990.
Court of Appeals of Maryland.
August 22, 1991.
Motion for Reconsideration Denied October 4, 1991.
Ronald S. Canter (Wolpoff and Abramson, both on brief), Bethesda, for respondent.
Stan M. Haynes and Rudolph L. Rose, Baltimore (Semmes, Bowen & Semmes, Baltimore, John Noble, Noble and Crow, P.A., Rockville, all on brief), for petitioners.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ., and CHARLES E. ORTH, Jr. and MARVIN H. SMITH, Associate Judges of the Court of Appeals (retired), Specially Assigned.
RODOWSKY, Judge.
This workers' compensation case concerns the scope of an employer's obligation to provide medical treatment and services under Maryland Code (1957, 1985 Repl.Vol.), Art. 101, § 37(a). The principal issues are whether the complainant, a quadriplegic, is entitled to a specially equipped van, to additional remodeling and enlarging of his residence, and to the cost of electricity consumed in powering certain appliances used by him. The Workmen's Compensation Commission denied all three requests; the Circuit Court for Montgomery County reversed, and the Court of Special Appeals affirmed that reversal. R & T Constr. Co. v. Judge, 82 Md. App. 700, 573 A.2d 96 (1990).
Section 37(a) provides in relevant part:
"Employer to provide medical, etc., treatment and services. In addition to the compensation provided for herein the employer shall promptly provide for an injured employee, for such period as the nature of the injury may require, such medical, surgical or other attendance or treatment, nurse and hospital services, medicines, crutches, apparatus, artificial hands, arms, feet and legs and other prosthetic appliances as may be required by the Commission...."
The claimant, Thomas Claude Judge (Judge), fell out of a third story window on October 28, 1981, while constructing townhouses in Gaithersburg, Maryland. The petitioner, R & T Construction Company (R & T), is a Virginia based corporation which was Judge's statutory employer at the time of the accident. The insurer is Maryland Casualty Company. Judge, who was born November 2, 1929, is a resident of Virginia.
As a result of the accidental injury, Judge is completely paralyzed from the neck down. He is confined to his bed or to his wheelchair. He is attended round-the-clock by nurses working one at a time, in shifts. Judge's paralysis includes his bladder, his bowels, and even the involuntary control of his blood vessels. As a result of the latter, his body cannot regulate its temperature. Judge is "ventilator-dependent," meaning that he is unable to breathe without the assistance of a machine, referred to as a "respirator" and as a "ventilator." Judge has at least two ventilators, a stationary one that sits by his bed, and a portable one that is carried on his wheelchair. His electrically powered, motorized, tiltable wheelchair is almost twenty-seven inches wide. Judge uses the wheelchair in a reclining position, in contrast with sitting upright in it.
Judge pursued workers' compensation in Virginia to an award against R & T rendered in February of 1982. He was sent to the Rocky Mountain Regional Spinal Injury Center located at Craig Hospital in Colorado, a nationally known facility specializing in the management and care of ventilator dependent quadriplegics. Judge's wife, Patricia Judge, was trained at Craig Hospital in caring for Judge. From the time of his release, Judge has lived with his wife at their detached residence in Dale City, Virginia.
In December 1982 the Supreme Court of Virginia held that under the Virginia workers' compensation statute the employer's obligations for medical care and vocational rehabilitation did not include structural improvements to the residence of a paraplegic who was confined to a wheelchair. Low Splint Coal Co. v. Bolling, 224 Va. 400, 297 S.E.2d 665 (1982). The Virginia Industrial Commission relied on Low Splint Coal Co. to deny, in February 1983, an application by Judge for a specially modified van to be permanently situated at his home. The Virginia Industrial Commission concluded that the requested van was "not any form of necessary medical attention."
Effective July 1, 1983, the Virginia legislature authorized the Industrial Commission to require employers, where medically necessary, to furnish wheelchairs, lifts, adjustable beds, and modification of the claimant's principal home at a total cost not to exceed $10,000. See Va. Code Ann. § 65.188 (1980, 1984 Supp.). Judge applied to the Virginia Industrial Commission for further home modifications. Maryland Casualty Company had already expended nearly $9,500 for wheelchairs for Judge and $2,400 in home modifications, consisting of a ramp to the front door and the widening of certain doors. The Virginia Commission held in March 1984 that this statute was retroactive, so that the insurer had no further obligation under Virginia law.
Meanwhile, Judge filed a claim in October 1983 with the Maryland Workmen's Compensation Commission (the Commission) seeking a specially equipped van, payment of electric bills, and further modifications to his residence. That claim was held to be timely filed. Judge v. R & T Constr. Co., 68 Md. App. 57, 509 A.2d 1236, cert. denied, 307 Md. 433, 514 A.2d 1211 (1986).
At the hearing before the Commission in this matter, Judge and his wife testified. Testimony of Judge's last witness, a rehabilitation consultant, was terminated by the Commissioner after counsel for Judge disclaimed a vocational rehabilitation theory and proffered the balance of the testimony would cover the psychological responses of quadriplegics. The Commission's award found that Judge was "not entitled to payment for increases in electric bills, a van, and further modifications to his home pursuant to [§ 37]."
On appeal, the Circuit Court for Montgomery County at first ruled on motion that it would remand this case to the Commission. Then the circuit court reversed itself. That court and the parties interpreted the Commission's order to hold, as a matter of law, that § 37 did not encompass claims of the type asserted by Judge. The circuit court ruled, as a matter of law, that the types of claims that Judge was asserting could be cognizable under § 37.
This case thereafter was tried before a jury. Judge, his wife, a psychologist, an architect, and, by deposition, an orthopedic surgeon from Craig Hospital testified. Judge presented no evidence to particularize the cost of his claims.
The court submitted three issues to the jury, namely, whether Judge was entitled to each of the types of benefits sought. The jury was told that it must find that each "benefit is reasonable and necessary to cure or relieve illness or disability of the claimant caused by the work related injury." The jury answered yes to each issue.
The circuit court entered a judgment reversing the Commission and ordering this case remanded to the Commission "for the entry of an order consistent with this decision and for further proceedings required by this decision."
R & T and its insurer appealed to the Court of Special Appeals. In addition to raising the three issues described above, they also argued that the denials by the Virginia Industrial Commission of the benefits requested by Judge in the instant matter prevented, by operation of the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, or under Maryland public policy, the Commission from awarding the same benefits.
On the issue of the scope of § 37 the Court of Special Appeals held that increased electrical costs were recoverable. It also held that
"given an appropriate factual predicate, § 37(a) may permit the ... Commission to order modifications to an injured worker's home, as well as providing, for the use of the injured worker, a specially modified and equipped van. Indeed, we believe that the latter fits quite comfortably within the Maryland statute as an `other prosthetic appliance.'"
R & T Constr. Co. v. Judge, 82 Md. App. at 716, 573 A.2d at 103 (footnote omitted). R & T's full faith and credit argument was rejected.
We granted R & T's petition for certiorari, 321 Md. 46, 580 A.2d 1066. Additional facts will be stated as we address various issues in this opinion.
I
We reject the full faith and credit argument advanced by R & T for the reasons given by the Court of Special Appeals in part 4 of its opinion. R & T Constr. Co., 82 Md. App. at 722-26, 573 A.2d at 106-08.
R & T argues, however, that the Court of Special Appeals decided "the crucial constitutional issue ... without any consideration of the persuasiveness of the respective reasons supporting the various viewpoints on this issue." Reply Brief of Petitioners at 6.
The Supreme Court of the United States, and not this Court, is the final arbiter of the meaning and application of the Constitution of the United States. R & T's submission is that this Court should return to the rule of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943), under which the orders of the Virginia Industrial Commission on the issues presented here would bar benefits under § 37(a) of the Maryland act. The Magnolia rule was severely limited in Industrial Comm'n of Wisconsin v. McCartin, 330 U.S. 622, 67 S.Ct. 886, 91 L.Ed. 1140 (1947), which held that "[o]nly some unmistakable language by a state legislature or judiciary would warrant" construing the award in the state where the employment contract was made as "completely exclusive [and] designed to preclude any recovery by proceedings brought in another state for injuries received there...." Id. at 627-28, 67 S.Ct. at 889, 91 L.Ed. at 1143. In the Court's most recent venture into this field, Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980), there was no majority opinion. Consequently, McCartin stands unreversed. Under McCartin, this Court is not obliged to give the Virginia orders full faith and credit.
As the Court of Special Appeals pointed out, absent a constitutional bar, Maryland does not prohibit supplementing the award made by one state with additional benefits available under the more liberal law of another state. See Wood v. Aetna Casualty & Sur. Co., 260 Md. 651, 273 A.2d 125 (1971).
II
The circuit court's ruling that § 37(a) includes the cost of the electricity to operate reasonably necessary medical equipment and apparatus will be affirmed. Judge's hospital bed and the stationary ventilator are electrically powered, as is a suction device used about every two hours to clear Judge's lungs. The batteries for his mechanized wheelchair and for the portable ventilator must be recharged daily. The physician from Craig Hospital testified that "[w]ithout these types of devices in place, Mr. Judge would die of respiratory complications or ... he would succumb to skin breakouts and other sores which would be detrimental to his medical condition."
Under the circumstances, the cost of electricity for Judge's medical equipment and apparatus, described above, does not appear to be de minimus. The problem here is not one of coverage by § 37(a), but of proof of the cost. If the parties are unable to agree on a system for determining electrical costs attributable to the running of this medical equipment, as contrasted with basic household expenses, the Commission will have to resolve the dispute.
The claimant has also referred to his lack of normal bodily temperature controls to support a claim for some part of the cost of heating and air conditioning his residence, or at least, his room. The record shows that, when Judge is out of doors, his temperature must be monitored every two hours. That indicates some tolerance to temperature change. Currently the air conditioning is furnished by two window units, purchased by the insurer, that are located on the level of the house above that of Judge's bedroom. On this record the Commission could find that the air conditioning is medical treatment.
III
Understanding the claim for modifications to the Judges' residence involves the relationship of Judge's catastrophic physical limitations to the home's present and potential layouts. To describe the home we shall assume that it faces south. Currently only Judge and his wife reside there.
The Judges' home is a two-story structure, set into terrain which slopes down from back to front. The rear of the first floor is below ground while the front entrance on the first floor is at grade. On the west side of the front lot is a driveway from which a ramp leads to the front door. The front door is at midpoint of the south wall. The door opens onto a foyer, three feet long measured from the south wall to the foot of stairs that go to the second level. To the east of the entrance is Judge's bedroom (11.5' by 21.5'). Next to Judge's bedroom to the north, and along the north wall of the building is a utility room. Immediately west of the utility room is a full bathroom, separated on its south side from the back of the stairs by a corridor forty-two inches wide. The area west of the stairs from the front of the house to the back is a recreation room.
The doorways are twenty-seven inches wide between the foyer and Judge's bedroom, and between Judge's bedroom and the utility room, and between the utility room and the hall outside of the first floor bathroom. The door to that bathroom is twenty-one inches wide. That bathroom is too small within which to maneuver the wheelchair, much less a gurney.
The second floor of the house has a living room-dining room area on the west side, a kitchen on the north side, opposite the head of the stairs, and three bedrooms and a full bathroom on the east side. There is an outside deck accessible through a sliding glass door in the north wall of the dining area.
The twenty-seven inch doorways barely accommodate the width of Judge's wheelchair. Pads on the arms of the chair scrape on the sides of those doorways. These pads have been replaced approximately every two years. To get through the front door to the ramp, it is necessary for Judge's attendant to push the wheelchair into the recreation room, open the front door which swings in toward Judge's bedroom, and then maneuver the wheelchair between the foot of the stairs and the south wall, as if parallel parking an automobile.
Judge's wheelchair is equipped with a "sip and puff" control. By breathing in and out Judge can direct the mechanized chair forward and backward, but, because of the close clearances, he cannot navigate the twenty-seven inch doorways or the front door by the sip and puff control.
Judge is sponge bathed in his hospital bed. He has a permanent catheter installed between his navel and pubic area. When he is in the wheelchair the catheter bag is attached to his leg. Otherwise, it hangs from his bed. His bowels must be digitally stimulated by his attendant in order for them to function. This process is conducted in his bed into a disposable receptacle. The attendant disposes of the stool in the bathroom.
Because the issue before the circuit court was viewed to be whether home modifications for the handicapped could ever be ordered under § 37, Judge never requested a specific modification and never estimated the cost of any particular modification. Instead, Judge's architectural witness described progressively more elaborate alterations and additions to the home, and then the physician from Craig Hospital commented on those proposals.
The architect discussed three options, A through C. The principal features of option A were to increase the foyer area to forty-nine square feet by extending a seven foot wide section of the south wall containing the front door four feet to the south. The first floor bathroom would also be enlarged and redesigned. Option B added to option A an extension of the driveway to the north side of the house and construction of a second wheelchair access entrance on the north side of the home directly to the second floor level. Option C added to options A and B the construction of an addition containing a commercial size elevator linking the first and second floor levels.[1]
The physician, Dr. Robert R. Menter, gave two reasons for enlarging the first floor bath. The first was to enable the attendant to give Judge a shower while he was lying on a gurney because "[w]e feel that the majority of the people in our country bathe with some form of bath or shower, and that [it] is appropriate for a disabled individual to have that type of similar bathing arrangement...." Secondly, an enlarged bathroom would permit the attendant to perform the bowel and bladder routine there while Judge was on a gurney. In that way "the contents are disposed of or the urine is drained, in the proximity to where the fluids and/or excreta are collected."
Dr. Menter did not testify specifically concerning modifications to the foyer. He did express his views, however, on the general subject of mobility in connection with the customized van issue.
"`Q ....
"`Do you have an opinion, based upon a reasonable degree of medical certainty, as to whether Tom Judge is in need of a van modified for his uses for other transportation?
"`A Yes, I do.
"`Q What is that opinion?
"`A I believe that an individual who has lost their mobility, their ability to interact in the community, needs the restoration of whatever mechanical assistance that we can provide to maintain their abilities to interact in the community, in whatever way they choose to maintain involve their lives.'"
Dr. Menter also believed that Judge "should be allowed access to the primary living quarters of the family within their residence." By this he meant "the place where the members of the family would interact and carry out the majority of their activities. That involves, in almost all cases, the kitchen, the dining room, or the living room areas of the house."
A
R & T argues that modifications to the residence of a paraplegic or quadriplegic fall outside of the scope of medical treatment or services under § 37. The majority of courts which have considered this issue do not take the absolute position espoused by R & T. Rather, under workers' compensation statutes with no more specificity than § 37's "medical ... or other attendance or treatment," courts have recognized an obligation, depending on the particular facts before them, for some form of modification to living quarters to allow persons in wheelchairs the essentials of everyday life. In reviewing these decisions we do not intend to indicate agreement with the extent of the holding in each case. The decisions are relevant because in each case the statute is not substantially different from § 37.
In 1987 the Commonwealth Court of Pennsylvania ordered the construction of a ramp and the widening of certain doorways in the home of a claimant who could walk up to 200 feet on braces, but who otherwise used a wheelchair. Rieger v. Workmen's Compensation Appeal Board, 104 Pa.Commw. 42, 521 A.2d 84. The court said "that the intent of the Act is not that a claimant be forced either to rely upon the charity of his family and friends or to rely upon hired assistance in order to perform those daily tasks, duties, and business that he was previously able to perform, when a simple, inexpensive remedy is available at hand." Id. at 47, 521 A.2d at 87. Bomboy v. Workmen's Compensation Appeal Board, 132 Pa.Commw. 169, 572 A.2d 248 (1990), involved a paraplegic whose injury occurred in 1982, before Rieger was decided. The insurer in Bomboy paid for modification of the claimant's basement into a wheelchair accessible living space, with a bedroom and a bathroom. In 1988 the claimant sought additional modifications including an attached garage and a wheelchair lift, at a cost of up to $35,000. The court held that its prior Rieger decision did not extend to the requested, substantial modifications that were beyond those initially made to accommodate the claimant's wheelchair.
In Langford v. William Rogers, Inc., 144 A.D.2d 785, 534 N.Y.S.2d 761 (1988), the court held that reasonable modifications needed to facilitate the use of a wheelchair fell within the concept of "other attendance or treatment," reasoning that if a wheelchair were necessary, modifications needed to facilitate the use of the appliance were also necessary.
The insurer in Pine Bluff Parks & Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982), did "not question its obligation to furnish ramps, rails, wheelchairs, widened doors, special commodes and shower facilities and other apparatus required by the" paraplegic claimant. Id. at 159, 639 S.W.2d at 366. The claimant, however, had arranged to rent an apartment in a building designed especially for persons with mobility impairment. The court ordered apportionment of the rent, with the insurer paying that portion which remained after excluding the cost of lodging and non-medical services, such as housekeeping.
A type of modular or mobile home, manufactured especially for persons using wheelchairs, has been awarded in two reported decisions. The use of such a home was ordered in Peace River Elec. Corp. v. Choate, 417 So.2d 831 (Fla.App. 1982), where the insurer acknowledged that it was required to furnish some form of special housing accommodations. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 347 S.E.2d 814 (1986), involved a nineteen year old whose legs were paralyzed. The owner of the residential structure which the claimant's parents rented refused to permit modifications, including those to an entrance and to a bathroom. By a four to three decision, the court upheld an award of alternate housing for the claimant alone in a specially designed mobile home. One of the dissenting judges filed an opinion emphasizing, in part, that disability compensation is a substitute for lost wages that would be used to purchase shelter, among other things, and that only those special features of the new residence which were necessitated by the injury should be included as medical treatment.
In a Florida case the insurer successfully contended, on appeal, that its obligation to provide handicapped-equipped and wheelchair-accessible housing was satisfied by paying the difference between the rental of a specially designed apartment over the cost of the apartment occupied by the claimant prior to the injury. See Ramada Inn South Airport v. Lamoureux, 565 So.2d 376 (Fla.App. 1990). In another Florida case, where the issue was modification of existing housing versus alternate housing, the court held that "[u]nless there is a specific reason that the existing home is totally inappropriate for modification, the [employer and insurer] should have the option of modifying the existing residence in conformance with the medically necessary requirements." Polk County Bd. of Comm'rs v. Varnado, 576 So.2d 833, 838 (Fla.App. 1991).
Where a quadriplegic bought a house that was not "particularly difficult or expensive to modify as opposed to any other residence that [the insurer] might have found," the insurer was obliged to modify. See Terry Grantham Co. v. Industrial Comm'n, 154 Ariz. 180, 183, 741 P.2d 313, 316 (1987). Precisely what modifications were involved for the quadriplegic claimant are not disclosed in the opinion.
The decision on which Judge places heaviest reliance is Squeo v. Comfort Control Corp., 99 N.J. 588, 494 A.2d 313 (1985), involving a quadriplegic who was twenty-four at the time of the accident. Living in a nursing home with predominantly elderly patients, the claimant had become so severely depressed that he attempted suicide on three occasions. The compensation court ordered construction of a separate apartment attached to the claimant's parents' home, but not interconnected with it. The apartment was to be built to the standard of an apartment in either of two specified, independent living facilities located in New Jersey, with the claimant to pay any costs above that standard.[2] The court held that the testimony supported a holding that "the construction of the apartment addition was reasonable and necessary treatment to relieve Squeo of his severe mental depression." 99 N.J. at 605, 494 A.2d at 322.
At the other end of the spectrum are Low Splint Coal Co. v. Bolling, 224 Va. 400, 297 S.E.2d 665, discussed supra, and Savaria v. DiSano, 118 R.I. 357, 373 A.2d 820 (1977). The claimant in the latter case had no use of his legs and was barely able to move his arms. He lived in a second floor apartment and sought installation of an elevator or lift. The claimant's physician testified that the lift would make ingress and egress safer, but it would not improve the claimant's health. The request was held to be for convenience and not for medical purposes. Cf. Zylbergleit v. Irving Rubber & Metal Co., 87 A.D.2d 929, 450 N.Y.S.2d 87 (1982) (electric elevator chair installed for access by compensable heart condition claimant to second floor apartment).
R & T submits that ejusdem generis prevents construing § 37(a) to include any home modifications. They are not, R & T argues, in the same class as "medical, surgical or other attendance or treatment, nurse and hospital services, medicines, crutches, apparatus, artificial hands, arms, feet and legs and other prosthetic appliances." R & T's reading is a narrow one. Article 101, § 63 provides that "[t]he rule that statutes in derogation of the common law are to be strictly construed shall have no application to this article." We have said that Art. 101 "should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Any uncertainty in the law should be resolved in favor of the claimant." Howard County Ass'n for Retarded Citizens v. Walls, 288 Md. 526, 530, 418 A.2d 1210, 1213 (1980).
The meaning of "nurse ... services" in § 37(a) was an issue in A.G. Crunkleton Elec. Co. v. Barkdoll, 227 Md. 364, 177 A.2d 252 (1962), where both of the claimant's arms had been amputated just below the shoulders as a result of the accidental injury. Because the words "nurse services" appear in an enumeration including "medical, surgical ... and hospital," ejusdem generis would indicate that only professional health care providers were intended. Yet, this Court said that "the word `nurse' ... is a broad and comprehensive term and encompasses the care and attendance necessary in each case." Id. at 371, 177 A.2d at 256. We held that § 37(a) was not limited to services by registered nurses or by licensed practical nurses, but that, under the circumstances there, § 37(a) also included nursing services by the claimant's wife. Similarly, Art. 101, § 57 requires Commission approval of "compensation for legal services." In Schauder v. Brager, 303 Md. 140, 492 A.2d 630 (1985), we held that under § 57 the Commission was also "empowered to approve fees of physicians and others who evaluate a claimant in preparation for trial and who appear for a claimant at trial." Id. at 142, 492 A.2d at 631.
The wheelchair confined claimant who has had an established residence is denied access to traditional medical treatment, under an implied circumstance of its rendition, if the home is not wheelchair accessible. The wheelchair is a medical "apparatus," and, without wheelchair accessibility, use of the apparatus is denied in the location where the General Assembly would expect the wheelchair most commonly to be used. Similarly, it is a medical necessity that the wheelchair bound claimant who could use a toilet without assistance have access to the bathroom of the home. We hold that § 37(a) includes within the concept of medical treatment reasonable modifications to a claimant's home that allow necessary access for claimants confined to wheelchairs as a result of their compensable injuries.
B
It does not follow from the foregoing that Judge is entitled to have the insurer provide any of the home alterations which were described by his architect witness. Judge is bathed by his nurse and his bodily wastes are removed by the nurse. Judge's attendant can push his wheelchair out of his bedroom to the recreation room and maneuver the wheelchair out of the house. The insurer is already paying for Judge's being provided with those necessities, the absence of which would impair physical well-being.
We recognize that Judge's lifestyle would, to some degree, move closer to that of a person who is not so catastrophically disabled if he could, by the sip and puff control, operate his wheelchair throughout most of the lower level of his home and out the front door, if he could lie under a shower, if he could have the bowel and bladder routine performed in the bathroom, and if he could visit the second level of his house, as well as the first. Yet, if all of this remodeling were done, Judge would still need a full-time attendant. This highlights that the alterations proposed here would not make the residence suitable for the disabled person to be relatively self-sufficient, insofar as necessities are concerned. In this case the additional modifications involve the improvement of the quality of life for one in Judge's situation.
We further recognize that a body of professional and public opinion supports "mainstreaming," to the fullest extent possible, for severely disabled persons. We remain mindful that the act is to receive a liberal construction. Nevertheless, in the area of modifications to a residence, the concept of medical treatment under § 37(a) must be limited to access for necessities. Here the purpose of the possible improvements goes beyond the necessities already being provided, and seeks to give Judge a sense of increased independence and self-worth. Under the circumstances here that goal is beyond the process of construction of § 37(a). Were we to depart from the standard of access to necessaries that may be implied in medical treatment, there would be no statutory standard to guide the Commission in determining the extent of an insurer's obligation to make alterations to a claimant's residence. Consequently, on the issue of modifications to the Judges' home, the Commission reached the legally correct result.
IV
The rationale for our holding concerning further modifications to the residence furnishes the answer to the issue involving a specially equipped van. The insurer currently transports Judge by van approximately once a week to Judge's physician. Measured by a standard of necessity, that weekly transport is the out-of-doors mobility equivalent of wheelchair access into, and within essential parts of, a home by one who is not as severely limited as is Judge. Increased mobility will certainly improve the quality of Judge's life, but a specially equipped van is not an "other prosthetic appliance[,]" as the Court of Special Appeals held.
2 A. Larson, The Law of Workmen's Compensation § 61.13(a), at 10-863 (1989) summarizes by saying that "[a]s to specially-equipped automobiles for paraplegics, the cases have uniformly denied reimbursement, on the ground that an automobile is simply not a medical apparatus or device." (Footnote omitted.) See Aino's Custom Slip Covers v. DeLucia, 533 So.2d 862 (Fla.App. 1988); Kranis v. Trunz, 91 A.D.2d 765, 458 N.Y.S.2d 10 (1982); DeCroix v. N. Sumergrade & Sons, 20 A.D.2d 735, 246 N.Y.S.2d 852 (1964); Carniato v. Foster Wheeler Corp., 7 A.D.2d 328, 183 N.Y.S.2d 298 (1959); McDonald v. Brunswick Elec. Membership Corp., 77 N.C. App. 753, 336 S.E.2d 407 (1985); Johnson v. Skelly Oil Co., 359 N.W.2d 130 (S.D. 1984). But see Terry Grantham Co. v. Industrial Comm'n, 154 Ariz. 180, 741 P.2d 313 (Ariz. App. 1987); Edgewood Boy's Ranch Found. v. Robinson, 451 So.2d 532 (Fla.App. 1984).
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO AFFIRM IN PART AND REVERSE IN PART THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AND TO REMAND THIS CASE TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR REMAND IN PART TO THE WORKMEN'S COMPENSATION COMMISSION, FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID ONE-HALF BY RESPONDENT, THOMAS CLAUDE JUDGE, AND ONE-HALF BY THE PETITIONERS, R & T CONSTRUCTION COMPANY AND MARYLAND CASUALTY COMPANY.
NOTES
[1] In a written report the architect presented a fourth option. Recognizing the extent of the modifications presented as options A, B, and C, option D reviewed the advantages of building a new home elsewhere.
[2] The effect was to place on the insurer the cost of basic housing, as well as of the special, additional features.
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Opinion issued on June 6, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00288-CR
ALBERT GENE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 853371
O P I N I O N
A jury found appellant, Albert Gene Johnson, guilty of aggravated assault.
After appellant pled true to two enhancement paragraphs, the jury assessed
punishment at 35 years. On appeal, appellant claims that (1) his right to confrontation
was violated when the trial court refused to let his counsel impeach the complainant,
Gary Cook, with his prior criminal record, and (2) the prosecutor's improper closing
argument during the punishment stage requires a reversal of his conviction. We
affirm.
Factual Background
On August 19, 2000, Monica Thomas and her three children were visiting her
mother, Peggy Roots, at her apartment, along with appellant and his children.
Thomas testified that during her visit, one of appellant's children said something to
her oldest son, and appellant came up to her son and looked like he was about to fight
him. Thomas testified that she pushed appellant back and told him to get out of her
son's "face." Thomas then called the complainant, Gary Cook, who was her son's
father, and told him about the confrontation. She then contacted the police.
After getting off the phone with Thomas, Cook asked his friend, Anthony
Jones, to drive him to the apartment where Thomas was. When Cook arrived at the
apartment complex, he talked to his son about the altercation, and then went into the
apartment to confront appellant. After appellant and Cook had a heated verbal
altercation, Peggy Roots asked both men to leave. As Cook was leaving the
apartment, appellant said to Cook, "You are going to respect me."
A few minutes later, when Cook was attempting to leave the apartment
complex, he heard his friend Jones yell, "Run." Cook testified that when he glanced
back, he saw appellant coming out of his truck with something in his hand. Cook ran
a few steps, heard a gun shot, and then realized that he had been shot.
Officer R.J. Robinson testified that when he pulled up to the entrance of the
apartment complex, he heard a gunshot, and saw Cook running toward him. He
observed that Cook had been shot on the right side of his head and immediately
requested an ambulance. Officer Robinson entered the apartment complex, where he
saw several children and adults yelling and screaming. He asked them where the
shooter, was and they pointed to appellant's red pickup truck in the parking lot.
Robinson proceeded to appellant's truck and saw appellant sitting with a shotgun in
his lap. After Robinson arrested appellant, he recovered the shotgun and one spent
round of ammunition.
Impeachment With Prior Criminal Record
In his first, second, and fifth points of error, appellant claims the trial court
violated his right to confrontation under the United States and Texas Constitutions. (1)
U.S. Const. amend. VI; Tex. Const. art I, § 10. Specifically, appellant contends that
the trial court abused its discretion by limiting his cross-examination of the
complainant, Gary Cook, by excluding evidence of Cook's two prior felony
convictions, which were more than 10 years old. Appellant argues that he should
have been allowed to impeach Cook with his remote convictions under rule 609 of
the Texas Rules of Evidence. Tex. R. Evid. 609(a), (b).
Whether to admit remote convictions under rule 609 lies within the trial court's
discretion and depends on the facts and circumstance of each case. Lucas v. State,
791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson v. State, 50 S.W.3d 579, 591
(Tex. App.--Fort Worth 2001, pet. ref'd).
Rule 609 provides:
(a) General Rule. For the purpose of attacking the
credibility of a witness, evidence that the witness has been
convicted of a crime shall be admitted if elicited from the
witness or established by public record but only if the
crime was a felony or involved moral turpitude . . . and the
court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is
not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of
the witness from the confinement imposed for that
conviction, whichever is the later date, unless the court
determines, in the interest of justice, that the probative
value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.
Tex. R. Evid. 609(a), (b).
In Hernandez v. State, this Court held that when evaluating a complaint about
the admission or exclusion of a prior conviction, an appellate court has the following
options:
(1) it may find that the prior conviction is not remote (less than 10 years old)
and analyze its evidentiary impact under 609(a) and Theus v. State, 845 S.W.2d
874 (Tex. Crim. App. 1992);
(2) it may find that it is more than 10 years old but that subsequent convictions
of felonies or misdemeanors involving moral turpitude remove the taint of its
distance. Under that circumstance, the 609(a) standard is appropriate because
the 'tacking' of the intervening convictions causes a conviction older than 10
years to be treated as not remote; or
(3) the court may find that the prior conviction is remote but that under 609(b)
its probative value substantially outweighs its prejudicial effect.
976 S.W.2d 753, 755-56 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd).
As the proponent of the evidence, appellant was required to supply this court
with a record that demonstrates why Cook's prior convictions are admissible. See
Theus, 845 S.W.2d at 880 (holding that burden of proof is on party urging admission
of prior conviction for impeachment). As previously discussed, under rule 609,
before we can determine whether Cook's prior convictions were admissible, the
record must demonstrate (1) the date of Cook's convictions and (2) when Cook was
released from confinement for those convictions. See Tex. R. Evid. 609 (b). For
purposes of our review, the later of these dates will determine which standard we
apply to the trial court's decision to admit or exclude the evidence. See Tex. R. Evid.
609 (b); Hernandez, 976 S.W.2d at 755-56.
In this case, the record is silent regarding the date Cook was convicted or
whether he received jail time for his prior convictions. Appellant did not make an
offer of proof or introduce into evidence a pen packet that would establish the
necessary dates for our review. Therefore, we cannot determine whether the trial
court abused its discretion. See Hernandez, 976 S.W.2d at 755-56.
We overrule appellant's first, second, and fifth points of error.
Impeachment With Deferred Adjudication
In his third, fourth, and sixth points of error, appellant claims the trial court
erred by not allowing him to impeach Cook with the fact that he was on deferred
adjudication.
According to the record, Cook was indicted in August 2000 for possession of
a controlled substance and placed on deferred adjudication. Before trial, appellant
told the trial court that he wanted to impeach Cook by showing that he was on
deferred adjudication. Appellant argued that "under 609, Judge, we're entitled for
impeachment to cross-examine [Cook]" with his criminal record. The trial judge
disagreed, and held that because Cook had not yet been found guilty, the evidence
was inadmissible under rule 609 of the Texas rules of evidence.
As the circumstances described above demonstrate, appellant sought to utilize
Cook's deferred adjudication status to impeach Cook's credibility generally via rule
609. Appellant never attempted to introduce the evidence, despite rule 609, by
arguing that it purportedly exhibited a "vulnerable relationship" between Cook and
the State and, therefore, constituted evidence of motive, bias, or interest on behalf of
the State. (2) Instead, his argument at the trial court level was limited to admission via
Rule 609, and for the purpose of impeaching Cook with his prior criminal record.
Yet, on appeal, appellant argues that the trial court erred because the evidence
was admissible to show motive, bias, or interest in favor of the State, despite rule 609.
In other words, appellant attempts to invoke the vulnerable relationship theory before
this Court without having mentioned it below. Having failed to assert the theory
below as a ground supporting admission of the evidence, we hold appellant waived
these points of error for appellate review. Tex. R. App. P. 33.1(a); Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App 1995) (holding grounds supporting an
objection below must comport with the grounds asserted on appeal); Fletcher v. State,
902 S.W.2d 165, 167 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (same).
We overrule appellant third, fourth, and sixth points of error.
Improper Jury Argument
In his seventh point of error, appellant claims that because the prosecutor made
improper remarks during the punishment phase, his conviction should be reversed in
order to conduct a new punishment hearing.
In order to complain on appeal about an erroneous jury argument, or that an
instruction to disregard could not have cured an erroneous jury argument, the
appellant must show he objected and pursued his objection to an adverse ruling.
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding defendant's
"right" not to be subjected to erroneous jury argument is one of those rights that is
forfeited by a failure to object); Bias v. State, 937 S.W.2d 141, 144 (Tex.
App.--Houston [1st Dist.] 1997, no pet.).
In this case, appellant never objected to any of the complained of arguments.
Therefore, he waived this point of error. See Cockrell, 933 S.W.2d at 89.
Accordingly, we overrule appellant's seventh point of error.
Conclusion
We affirm the trial court's judgment.
Margaret Garner Mirabal
Justice
Panel consists of Justices Mirabal, Taft, and Price. (3)
Do not publish. Tex. R. App. P. 47.4.
1. Because there is no meaningful distinction between the confrontation clauses
in the United States and Texas Constitutions, we address appellant's points of
error together. See Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App.
1997).
2. The "vulnerable relationship" concept was first addressed in Carroll v. State,
916 S.W.2d 494 (Tex. Crim. App. 1996), and describes a circumstance in
which the witness might be prone to testify in favor of the State in return for
leniency with the witness's current criminal charges. If such circumstance
exists, evidence of the same is admissible even though it does not involve a
final conviction. Maxwell v. State, 48 S.W.3d 196, 199-200 (Tex. Crim. App.
2001); Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999). In Maxwell,
the court of criminal appeals held that evidence that would not be admissible
under rule 609, because the conviction was neither final, i.e. deferred
adjudication, a felony, nor one of moral turpitude, could be admissible if it
illustrated the requisite vulnerable relationship. 48 S.W.3d at 199-200. Under
Carroll, one attempting to gain the admission of evidence inadmissible under
rule 609 must invoke the vulnerable relationship theory in a manner that
reasonably informs the trial court of reliance upon that theory. Appellant did
not do this.
3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District
of Texas at Houston, participating by assignment.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3271
ARTIS D. GOODLOE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Artis D. Goodloe, of Chicago, Illinois, pro se.
Jeremiah M. Luongo, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Kenneth M. Dintzer, Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3271
ARTIS D. GOODLOE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in case
CH0752070621-I-1.
__________________________
DECIDED: April 2, 2009
__________________________
Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and CUDAHY, Senior Circuit
Judge. ∗
PER CURIAM.
Artis D. Goodloe appeals the April 11, 2008, decision of the United States Merit
Systems Protection Board (“MSPB”) denying his petition for review that made final the
November 19, 2007, decision of the administrative judge, which dismissed his appeal,
without a hearing, for lack of jurisdiction for purportedly failing to assert a non-frivolous
claim for jurisdiction. The government concedes that the administrative judge erred.
For the reasons set forth below, we vacate and remand.
∗
The Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court
of Appeals for the Seventh Circuit, sitting by designation.
I. BACKGROUND
Mr. Goodloe was employed as a Custodial Laborer by the U.S. Postal Service
(“USPS”). From January 2004 to April 2005, Mr. Goodloe was involved in a number of
absences from work, which eventually led to the USPS issuing a notice of suspension to
Mr. Goodloe for his failure to maintain a regular schedule and for his unauthorized
absences. In April 2005, Mr. Goodloe filed a grievance, which was ultimately settled by
the USPS and the union (on behalf of Mr. Goodloe). In March 2006, the USPS issued
another letter of intent concerning Mr. Goodloe’s absence from duty without pay for over
a year. Later that same month, the USPS issued a notice of proposed removal, in
which it detailed much of Mr. Goodloe’s problematic employment history. Mr. Goodloe
submitted a letter along with two pages of medical documentation in an attempt to
explain his absence. On April 6, 2006, through a Letter of Decision, the USPS
determined that, given the lengthy absence and the lack of suitable explanation, Mr.
Goodloe’s removal was warranted and effective as of April 12, 2006.
On April 18, 2006, Mr. Goodloe and his union representative filed a grievance,
but Mr. Goodloe did not appeal the removal to the MSPB at that time. In July 2007, the
settlement of the grievance was memorialized in a written agreement, signed by a
USPS representative and, on behalf of Mr. Goodloe, a union representative. The
settlement agreement required Mr. Goodloe to tender his resignation by September 16,
2007. He never did, so his removal became effective as of that date.
In August 2007, Mr. Goodloe, acting pro se, appealed to the MSPB. He
contended that he has post-traumatic stress disorder and “was unaware of what” had
been occurring with his grievance and that he had “acceptable documentation”
2008-3271 2
concerning his absences. He wrote that his “union and management” were “working
against [him].” He also asserted that the union was not acting on his behalf in the
settlement of the grievance.
On August 21, 2007, the administrative judge (“AJ”) issued an “Acknowledgment
Order,” which explained the Board’s limited jurisdiction. In response, Mr. Goodloe
himself submitted a letter in which he detailed the merits of his appeal. Among other
things, Mr. Goodloe argued that he was not kept informed of the grievance proceedings,
was never told when the arbitration would be held, and was promised his job back after
the union met with the agency. In this same letter, Mr. Goodloe also asserted that he
heard nothing further from the union until receiving a certified letter containing the pre-
arbitration settlement agreement signed by the USPS and union representatives. He
also requested a hearing. In September 2007, Mr. Goodloe filed a second letter, again
detailing the merits of his case and alleging that he had “been tricked and lied to from
union and management to the point where [he] had to stop certain meds so that [he]
could understand what [was] going on.” Additionally, he argued that he was never
informed of his rights.
In October 2007, during a telephonic status conference, the AJ “determined that
this appeal is a removal and not an involuntary resignation as [Mr. Goodloe] never
tendered his resignation to the agency.” The AJ decided that she would schedule a
hearing for the appeal.
In November 2007, USPS filed a motion to dismiss, arguing that the settlement
agreement extinguished Mr. Goodloe’s right to appeal. The USPS also urged that the
2008-3271 3
appeal involved a “forced resignation,” and that Mr. Goodloe was removed more than
sixteen months before he filed his appeal with the Board.
The AJ then issued an Order to Show Cause, requiring Mr. Goodloe to file
argument and evidence to prove that the Board had jurisdiction over his appeal. In
response, Mr. Goodloe, still acting pro se, made a submission in which he made various
allegations, similar to those previously made, including that his union failed to inform
him about the status of his grievance or provide any notice about the pre-arbitration
settlement.
On November 19, 2007, without holding a hearing, the AJ issued her initial
decision dismissing Mr. Goodloe’s appeal for lack of jurisdiction. In doing so, the AJ
made two determinations. First, the AJ concluded that Mr. Goodloe had not raised a
non-frivolous allegation to establish the Board’s jurisdiction, and therefore, she ruled
without holding a hearing. Second, the AJ held that Mr. Goodloe had not proven that
his settlement agreement was involuntary. The AJ held that the settlement agreement
effected a waiver of Mr. Goodloe’s right to contest his removal to the Board. The AJ
ruled that Mr. Goodloe had “not demonstrated that the grievance settlement was an
involuntary act as he ha[d] not established that he was unaware of the union’s activity,
had not designated the union as his representative, and did not initiate the grievance.”
The AJ concluded that Mr. Goodloe merely argued “that his union representation was
inadequate,” and that, based on precedent, his “dissatisfaction with his union
representation [was] insufficient to disturb the settlement agreement.”
Mr. Goodloe filed a petition for review to the Board, dated November 21, 2007.
On April 11, 2008, the Board issued a final order denying Mr. Goodloe’s petition.
2008-3271 4
Mr. Goodloe filed his informal brief with this court on August 26, 2008. The USPS filed
its informal brief on February 17, 2009.
II. DISCUSSION
The scope of our review of an appeal from a Board decision is limited. We can
only set aside Board decisions that are “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c) (2006); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003).
Whether the Board has jurisdiction to hear an appeal is a legal question reviewed
de novo. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). The
appellant below shoulders the burden of proving jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i)
(2008); Garcia v. Dep’t of Homeland Security, 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en
banc). “Once a claimant makes non-frivolous claims of Board jurisdiction, namely
claims that, if proven, establish the Board’s jurisdiction, then the claimant has a right to
a hearing.” Garcia, 437 F.3d at 1344 (emphasis added).
The government concedes that the Board erred when it concluded that
Mr. Goodloe failed to make a non-frivolous claim. We agree with the government that
Mr. Goodloe presented a non-frivolous allegation of involuntary removal. The
government admits that
[t]hroughout the board proceedings, Mr. Goodloe
alleged that he never gave his union representative
authority to settle his case, that he was promised by
his union representative that he would get his job
back, and that he believed the union agreed to have
him removed because of a deal the union had worked
out with the agency to benefit itself.
2008-3271 5
Respondent’s Br. at 20. In addition, the government agrees that Mr. Goodloe “also
challenged the underlying facts of his removal, arguing that his removal due to being
absent without official leave was unjustified because he had sufficient documentation to
explain his absences.” Id. at 21. Our review of the record confirms the government’s
view. Therefore, the AJ should have afforded Mr. Goodloe an evidentiary hearing on
jurisdiction. Accordingly, on remand, the Board must provide such a hearing to assess
whether Mr. Goodloe can meet his burden of proving jurisdiction over his appeal,
assuming, as explained below, it is determined that the appeal was timely filed or there
exists good cause for any delay in filing.
In its brief, the government also raises the timeliness of Mr. Goodloe’s appeal.
The government notes that Mr. Goodloe filed his appeal approximately sixteen months
after he received the April 1, 2006, letter of decision. If so, then such an appeal would
be untimely, as Mr. Goodloe’s appeal from the Postal Service’s decision should have
been filed “no later than 30 days after the effective date, if any, of the action being
appealed, or 30 days after the date of receipt of the agency's decision, whichever is
later.” 5 C.F.R. § 1201.22(b) (2008). Of course, Mr. Goodloe may be able to show that
he had good cause for the delay. See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581
(Fed. Cir. 1994). This is for the Board to assess on remand. Munson v. Merit Sys. Prot.
Bd., 318 F.3d 1358, 1361 (Fed. Cir. 2003). If he cannot do so, the appeal can be
dismissed; if he can, the administrative judge shall decide the issue of jurisdiction after
an evidentiary hearing thereon.
2008-3271 6
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UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, R.Q. WARD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
SPENCER J. RUSSO
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300324
GENERAL COURT-MARTIAL
Sentence Adjudged: 9 April 2013.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, Marine Corps Air Station Miramar, CA.
Staff Judge Advocate's Recommendation: LtCol K.C. Harris,
USMC.
For Appellant: LT Carrie Theis, JAGC, USN.
For Appellee: Maj Paul M. Ervasti, USMC; Maj Crista Kraics,
USMC.
18 November 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
Contrary to his pleas, members at a general court-martial
convicted the appellant of aggravated sexual contact with a
child under twelve years in violation of Article 120(g), Uniform
Code of Military Justice, 10 U.S.C. § 920 (2006). The convening
authority (CA) approved the adjudged sentence of six months’
confinement and a dishonorable discharge and except for the
discharge ordered it executed.
On appeal, the appellant raises three assignments of error;
first, that the military judge erred in excluding evidence under
MILITARY RULE OF EVIDENCE 412, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.);1 second, that the evidence is legally and factually
insufficient; and third, that his court-martial was
prejudicially impacted by unlawful command influence (UCI).
After carefully considering the record of trial and the
submissions of the parties, we are convinced that the findings
and the sentence are correct in law and fact, and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Background
In 2010, the appellant and his roommates hosted a cookout
for another Marine who was about to separate from active duty.
At that party was Gunnery Sergeant GP, along with her nine-year-
old twin daughters, L.C. and A.C. Other guests at the party
also brought their children who all played together while the
adults socialized.
Later that evening the appellant started a movie in the
living room for the children while the adults continued to
socialize in the kitchen. In the living room were two couches.
Three of the children, including L.C., sat on one while A.C. lay
on the other beneath a blanket. After the movie started, the
appellant came over and sat down on the couch next to A.C.. He
then pulled the blanket partly over himself, reached over and
placed his hand on her knee. He slid his hand up her thigh,
underneath her clothing, and touched her vagina. A few moments
later2 A.C. got up off the couch and went over to the kitchen,
where she stood next to her mother until they left a short while
later. At the time A.C. said nothing of what happened.
Approximately two years later, an incident at school led to
A.C. disclosing the above encounter with the appellant. After
1
Having reviewed the parties’ submissions, the relevant portions of the
record and the military judge’s evidentiary ruling (Appellate Exhibit XLI),
we find no abuse of discretion and therefore do not address this assigned
error further. United States v. Clifton, 35 M.J. 79, 81 (C.M.A. 1992).
2
At first A.C. estimated that the touching lasted approximately two to three
minutes. Record at 834. However, she later admitted that it could have been
as little as 10 to 15 seconds although it seemed much longer. Id. at 875.
2
her disclosure, agents from the Naval Criminal Investigative
Service (NCIS) initiated an investigation to include a forensic
interview during which A.C. recounted the events at the party in
2010. When NCIS agents interrogated the appellant, he initially
denied any inappropriate touching. He recalled sitting down on
the floor next to A.C. with his arm resting on the couch. He
acknowledged that his arm may have brushed against her leg, but
denied any further contact. After repeated questioning,
however, he eventually admitted to the touching.3
Legal and Factual Sufficiency
In his second assignment of error, the appellant asserts
that the guilty findings are both legally and factually
insufficient. We review questions of legal and factual
sufficiency de novo. United States v. Winckelmann, 70 M.J. 403,
406 (C.A.A.F. 2011). We review the legal sufficiency of the
evidence by determining “whether, considering the evidence in
the light most favorable to the prosecution, any reasonable
fact-finder could have found all the essential elements beyond a
reasonable doubt.” United States v. Day, 66 M.J. 172, 173-74
(C.A.A.F. 2008) (citing United States v. Turner, 25 M.J. 324,
324 (C.M.A. 1987)). The test for factual sufficiency is whether
“after weighing all the evidence in the record of trial and
recognizing that we did not see or hear the witnesses as did the
trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J.
552, 557 (N.M.Ct.Crim.App. 2006), aff’d, 64 M.J. 348 (C.A.A.F.
2007) (citations omitted).
Viewed in a light most favorable to the prosecution, A.C.’s
statements during the forensic interview and at trial,4 the
appellant’s admissions during his interrogation and in his
handwritten statement, and the remaining evidence in the record
lead us to conclude that a rational trier of fact could have
3
The appellant acknowledged that “[w]hat I recall ok, is her being under the
blanket, my hand under there, what I remember is her having black leggings
on. I was massaging her leg for roughly fifteen seconds and at some point in
time, my pinky did touch her vagina and then I stopped.” Prosecution Exhibit
3; AE XLVII at 74. In a written statement that followed the interrogation,
the appellant wrote that “[a]t one point my hand was on her knee. I started
moving my hand along her leg. At one point I realized my hand was to (sic)
far up her leg. I noticed I touched her privates. I immediately stopped and
bent my arm to take my hand off of her.” PE 4 at 1-2.
4
The members viewed a video recording of the forensic interview. Record at
1167; PE 13.
3
found all essential elements of the offense proven beyond a
reasonable doubt. Furthermore, even recognizing that we did not
personally observe the witnesses, we ourselves are convinced of
the appellant’s guilt beyond a reasonable doubt.
Unlawful Command Influence
In his final assignment of error, the appellant contends
for the first time on appeal that various panel members’
exposure to the Commandant of the Marine Corps’ (CMC) “Heritage
Brief” together with the military judge’s instruction to the
panel on CMC White Letter 3-12 “impermissibly exacerbated the
unlawful command influence already permeating [the appellant’s]
court-martial.”5 Appellant’s Brief of 10 Jan 2014 at 9. We
disagree.
When raised on appeal, the appellant carries the initial
burden of showing “some evidence” of (1) facts that, if true,
constitute UCI; (2) that the proceedings were unfair; and (3)
that the UCI was the cause of the unfairness. United States v.
Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citing United States
v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999)) (additional
citation omitted). Although this initial threshold may be low,
it requires more than “mere allegation or speculation.” Id.
(citing United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F.
2002).
In his appeal, the appellant focuses on the appearance of
UCI. Appellant’s Brief at 19. The test for the appearance of
UCI is objective. “We focus upon the perception of fairness in
the military justice system as viewed through the eyes of a
reasonable member of the public.” United States v. Lewis, 63
M.J. 405, 415 (C.A.A.F. 2006). An appearance of UCI arises
“where an objective, disinterested observer, fully informed of
all the facts and circumstances, would harbor a significant
doubt about the fairness of the proceeding.” Id. We review
allegations of UCI de novo. United States v. Harvey, 64 M.J.
13, 19 (C.A.A.F. 2006).
Assuming arguendo that the appellant sufficiently raised
the issue, we conclude beyond a reasonable doubt that any
appearance of UCI was sufficiently ameliorated. Without
objection, the military judge sua sponte instructed the members
on CMC White Letter 3-12 during general voir dire and addressed
5
For a more thorough description of the Heritage Brief and CMC White Letter
3-12, see United States v. Howell, No. 201200264, 2014 CCA LEXIS 321,
unpublished op. (N.M.Ct.Crim.App. 22 May 2014).
4
the issue in depth with the panel. Record at 534-35; 552-56; AE
XLII. All members disavowed any influence or pressure resulting
from the CMC’s remarks and further acknowledged that they would
only decide the case based on the evidence and law as instructed
by the military judge. Record at 553-56. Nothing in our review
of the record of trial indicates otherwise. After reviewing the
entire record, we conclude beyond a reasonable doubt that,
assuming the issue was appropriately raised, any appearance of
unlawful influence “had no prejudicial impact on the
[appellant’s] court-martial.” United States v. Douglas, 68 M.J.
349, 354 (C.A.A.F. 2010) (citing United States v. Biagase, 50
M.J. 143, 150-51 (C.A.A.F. 1999)).
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5
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661 F.2d 847
81-2 USTC P 9711
UNITED STATES of America and Frank M. Limbird, SpecialAgent, Internal Revenue Service, Petitioners-Appellees,v.SECURITY BANK AND TRUST COMPANY, Miami, Oklahoma and RickHartley, Cashier; Miami Savings & Loan Association, andArthur Guerrieri, Vice President; Gayle L. Edmondson,Certified Public Accountant; First National Bank & TrustCompany, (Miami, OK) and Edwin L. Hazelton, Cashier; FirstState Bank, Commerce, OK and Gary W. Gilstrap, VicePresident; First State Bank and Trust Company, Pittsburg,KS, Respondents,andVirgil P. Fox, Respondent-Appellant.
No. 80-1125.
United States Court of Appeals,Tenth Circuit.
Submitted on the Briefs Pursuant to Tenth Circuit Rule 9
March 10, 1981.Decided Oct. 9, 1981.
Gerald M. Handley and James F. Speck of Bellmann, Speck & Handley, Kansas City, Mo., for respondent-appellant.
Hubert H. Bryant, U. S. Atty., and Kenneth P. Snoke, Asst. U. S. Atty., Tulsa, Okl., for petitioners-appellees.
Before BARRETT, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
At the request of appellant Virgil Fox, whose income tax liability was being investigated, the Security Bank and Trust Company of Miami, Oklahoma, refused to comply with a summons issued by the Internal Revenue Service (IRS or Service) pursuant to Internal Revenue Code (IRC) § 7602, 26 U.S.C. § 7602.1 The IRS petitioned the district court for enforcement of the summons.2 Fox intervened as authorized by IRC § 7609(b)(1) and served eighteen interrogatories on the IRS agent who had issued the summons. The agent objected to all but one of the interrogatories as irrelevant. At the hearing on enforcement of the summons Fox moved for an order to compel answers to the interrogatories, which the court denied, directing him instead to propound the interrogatories to the agent who was present at the hearing. The agent answered some of the questions, but the court sustained continued objections to several of the interrogatories. At the conclusion of the hearing, the court ordered that the summons be enforced.
Fox argues on appeal that the discovery he sought was necessary to prove his defense that the government is pursuing a purely criminal investigation and is therefore precluded from use of its civil summons power.
* In Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 545, 27 L.Ed.2d 580 (1971), the Supreme Court held "that under § 7602 an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution." Following disagreement among the circuits as to when the "recommendation" has been made,3 the Supreme Court returned to the subject in United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). There the Court clarified that in determining whether a recommendation has been made, the focus should be upon the institutional posture of the IRS, i. e., whether the IRS had recommended criminal prosecution to the Department of Justice, and not upon a recommendation internal to the IRS, as by the agent in charge of the investigation to superiors. Id. at 311-16, 98 S.Ct. at 2364-2367. The Court added that it would not allow the Service, after institutionally deciding to recommend criminal prosecution, to circumvent the restriction by delaying submission of its recommendation to the Justice Department solely "to gather additional evidence for the prosecution." Id. at 316-17, 98 S.Ct. at 2367.
1
The Court summarized the test, then, as twofold:
2
"First, the summons must be issued before the Service recommends to the Department of Justice that a criminal prosecution, which reasonably would relate to the subject matter of the summons, be undertaken. Second, the Service at all times must use the summons authority in good-faith pursuit of the congressionally authorized purposes of § 7602."
3
Id. at 318, 98 S.Ct. at 2368. For explication of the good-faith standard, the Court referred to its opinion in United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964):
4
"(The Service) must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed...."
5
As examples of improper purpose, and therefore bad faith, the Court has thus far mentioned use of the summons power to pressure the taxpayer to settle a collateral dispute, Powell, id. at 58, 85 S.Ct. at 255; to harass the taxpayer, LaSalle, 437 U.S. at 316 n.17, 98 S.Ct. at 2367 n.17; Powell, 379 U.S. at 58, 85 S.Ct. at 255; or to allow the Service to fulfill a commitment to gather information for other law enforcement agencies, LaSalle, 437 U.S. at 317, 98 S.Ct. at 2367.4
II
6
In LaSalle the Court did not address the extent to which a taxpayer opposing enforcement of a summons may engage in discovery to determine if the summons was validly issued.5 Certain taxpayer defenses may not require the use of discovery, e. g., the information sought is not relevant to a tax investigation, is already in the hands of the IRS, or is sought to coerce or harass the taxpayer. But the Court in LaSalle specifically mentioned three other defenses available to a taxpayer: 1) the Service had already recommended criminal prosecution to the Department of Justice, 2) the Service had made an institutional commitment to do so but delayed submitting the recommendation solely to gather additional evidence to aid the prosecution, or 3) the Service had agreed to become an information-gathering agency for other law enforcement agencies. To flesh out these defenses, the taxpayer must rely on information peculiarly within the knowledge or files of the Service. See United States v. Marine Midland Bank, 585 F.2d 36, 38 (2d Cir. 1978). Therefore, the LaSalle Court must have envisioned at least limited discovery.
7
The Federal Rules of Civil Procedure, including the rules relating to discovery, apply in IRS summons enforcement proceedings "except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings." Fed.R.Civ.P. 81(a)(3). The Advisory Committee Note to the 1946 amendment, immediately following Rule 81(a)(3), explains that while the rule "allows full recognition of the fact that the rigid application of the rules in the proceedings themselves may conflict with the summary determination desired ..., it is drawn so as to permit application of any of the rules in the proceedings whenever the district court deems them helpful."
8
In considering taxpayer discovery requests, a court must determine whether the information sought is relevant to the issues in contention and should limit discovery to issues relevant to the validity of the summons. See Fed.R.Civ.P. 26(b); United States v. Genser, 595 F.2d 146, 152 (3d Cir. 1979) (Genser II ); United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969).6 Summons enforcement proceedings are intended to be summary; this also should limit discovery. See, e. g., Donaldson, 400 U.S. 517, 529, 91 S.Ct. 534, 541, 27 L.Ed.2d 580; United States v. Church of Scientology, 520 F.2d 818, 824 (9th Cir. 1975); United States v. Interstate Tool and Engineering Corp., 526 F.2d 59, 62 (7th Cir. 1975). Further, as the LaSalle Court observed, both "criminal and civil elements are inherently intertwined" in any tax fraud investigation. 437 U.S. at 309, 98 S.Ct. at 2363. Because discovery in criminal cases is more restrictive than in civil cases, compare Fed.R.Crim.P. 16 and the Jencks Act, 18 U.S.C. § 3500 with Fed.R.Civ.P. 26, more limited discovery than usual in civil cases may be appropriate when validity of an IRS summons is contested. Both the summary nature of the proceeding and the intertwinement with criminal aspects compel a court to weigh the relevancy of the information sought against the extent to which disclosure might delay the civil investigation or jeopardize a criminal investigation.
9
Considering these same issues, the Third Circuit has established a comprehensive scheme in which a taxpayer contesting a summons is entitled to specific, limited discovery at the outset. After discovery, if the taxpayer either can refute material allegations of the government or present a proper affirmative defense such as governmental bad faith, the taxpayer is entitled to an evidentiary hearing and additional discovery, if necessary to decide the validity of the summons. See United States v. Garden State National Bank, 607 F.2d 61, 70 (3d Cir. 1979); United States v. Genser, 602 F.2d 69, 72 (3d Cir.) (Genser III ), cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 185 (1979); Genser II, 595 F.2d at 152; United States v. Genser, 582 F.2d 292, 302 (3d Cir. 1978) (Genser I ); United States v. McCarthy, 514 F.2d 368, 373 (3d Cir. 1975).
10
The First and Fifth Circuits have expressly endorsed limiting the taxpayer's discovery to questioning the agent at the section 7602 summons enforcement hearing, noting that if necessary the court can then allow subsequent discovery. United States v. Salter, 432 F.2d 697, 700 (1st Cir. 1970); United States v. Harris, 628 F.2d 875, 883 (5th Cir. 1980). While this makes it more difficult for the taxpayer to prepare for the hearing, it avoids the prehearing use of depositions and interrogatories that may be unnecessary and that would delay the IRS examination. See 7 J. Moore Federal Practice P 81.06(1) (2d ed. 1980).
11
Applying the principle of limited, relevant discovery to Fox's contention, we first conclude that the trial court did not abuse its discretion when it refused to compel prehearing answers to the interrogatories and instead directed Fox to ask the interrogatories at the hearing.
III
12
The court sustained objections to the following interrogatories at the hearing:7
13
"9. State whether or not the Internal Revenue Service has ever had (appellant) under surveillance either by wire or any other means.
14
a) If (appellant) has been under surveillance, state when, where, how, at whose direction, and under what authority.
15
b) State whether (appellant) is currently under surveillance, at whose direction, and under what authority.
16
"10. State whether IRS received information from any law enforcement agency regarding (appellant), at any time prior to the commencement of this investigation.
17
a) If yes, state from whom and the substance of that information.
18
b) State the dates on which such information was received.
19
"11. State whether IRS has received information from any law enforcement agency regarding (appellant) subsequent to the commencement of this investigation.
20
a) If yes, state from whom and the substance of that information.
21
b) State the dates on which such information was received.
22
"12. State whether the Internal Revenue Service has sought information from any law enforcement agency regarding (appellant).
23
a) If yes, state to whom inquiries were made, the nature of the inquiries, and the substance of any information received by the IRS.
24
b) State the dates on which such inquiries were made.
25
"13. State whether or not any informant or informants have been or are being used by the Internal Revenue Service in their investigation of (appellant).
26
a) If yes, state the identity of the informants.
27
b) State the substance of the information the informants have given you regarding the tax liability of (appellant).
28
c) State the substance of any information received from informants regarding any criminal tax violations by (appellant)."
29
Rec. I, 20-22; Rec. II, 51-53.
30
In determining the propriety of these interrogatories, we first recall that Fox's objection to the subpoena was on the ground that the Service was engaged in a purely criminal investigation.8 The IRS may not use the summons power if it is engaged in a purely criminal investigation; necessarily, the taxpayer must show that the IRS is not actively engaged in a civil investigation. As LaSalle observed, a tax fraud investigation normally has both a civil and a criminal component; thus, the Service may use the subpoena power to obtain evidence for its civil investigation even though the same evidence may be used in a criminal prosecution. See Genser III, 602 F.2d at 71-72.
31
Consequently, we must determine whether the interrogatories might yield information that suggests the IRS is not actively engaged in a civil investigation. It is evident that Interrogatories Nine through Twelve, dealing with surveillance and whether the Service asked for or received information from other agencies, are wholly irrelevant to whether a civil investigation is underway. Part (c) of Interrogatory Thirteen could yield information suggesting the IRS was investigating possible criminal violations, but even if a criminal investigation is underway, the Service may use the summons power so long as it is still actively engaged in a civil investigation. Furthermore, the relevancy of evidence that this interrogatory part might produce is outweighed by the possible jeopardy it may cause to other investigations since disclosure of the substance of information received from informants may cause harm to or coercion of the informant or flight by the taxpayer. Additionally, the taxpayer could obtain more direct evidence whether there is an active civil investigation simply by asking the status of the civil investigation, whether and when an institutional posture of recommending criminal investigation was reached, and the dates the investigation was begun and summonses were issued. See, e. g., Genser II, 595 F.2d at 152 (discovery tailored to detect inordinate delays); cf. Note, The Institutional Bad Faith Defense to the Enforcement of IRS Summonses, 80 Colum.L.Rev. 621, 639 (1980) (concluding that even some of the information the Third Circuit would allow to be discovered would be irrelevant).
32
Even if the taxpayer's defense was that the Service had agreed to serve as an information-gathering agency, Interrogatories Ten through Thirteen address the information other agencies furnished the IRS, not whether the Service was asked to or had agreed to serve as an information-gathering agency.9 Cf. United States v. Davis, 636 F.2d 1028, 1036 (5th Cir. 1981) (the use by the IRS of information obtained from other agencies does not bear on the Service's institutional posture). But cf. Note, supra, at 632-33 (arguing taxpayer should be permitted discovery of Service's past sharing of information with another agency).
33
The danger involved in not allowing a broad taxpayer inquiry into "all communications between the IRS and other agencies" is that the truth will not be revealed. An IRS agent responding to questions about a good-faith, ongoing civil investigation, an agreement to serve as an information-gathering agency, or a recommendation for criminal prosecution, may misrepresent the Service's institutional posture, innocently or deliberately. Cf. United States v. Wright Co., 536 F.2d 1090, 1095 (5th Cir. 1976) (refusing to accept agent's "bare assertion" that a civil investigation was being conducted). The taxpayer may later learn of this misrepresentation through subsequent events or by discovery at the time of criminal prosecution. See United States v. Serubo, 604 F.2d 807, 813 (3d Cir. 1979). In a subsequent criminal prosecution, the taxpayer will have a remedy: to ask the court to invoke its supervisory powers to suppress the fruits of the improperly issued subpoena. See, e. g., id. at 813-14; Genser II, 595 F.2d at 150; cf. SEC v. Laird, 598 F.2d 1162, 1163 (9th Cir. 1979) (information gained through SEC investigation may be suppressed in subsequent civil or criminal fraud suit); Richey v. Smith, 515 F.2d 1239, 1243-45 (5th Cir. 1975) (supervisory power allows court to compel IRS agents to return taxpayer's property).
34
Because the discovery appellant sought was irrelevant to the issues in contention, the order of the district court enforcing the summons is affirmed.
35
McKAY, Circuit Judge, concurring in part and dissenting in part.
36
The principal obstacle to a unanimous court in United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), was the majority's implicit recognition that a fully prophylactic rule defining the line between legitimate and illegitimate exercise of civil investigative authority would tempt overmuch the tax man to dissemble, if not downright manipulate and lie, thereby making the court an unwitting collaborator in the practice of abusing the civil process to obtain criminal prosecutorial ends. The essence of what the dissent found objectionable in the majority opinion is found in the majority's statement:
37
(w)ithout doubt, this burden is a heavy one. Because criminal and civil fraud liabilities are coterminous, the Service rarely will be found to have acted in bad faith by pursuing the former. On the other hand, we cannot abandon this aspect of the good-faith inquiry altogether. We shall not countenance delay in submitting a recommendation to the Justice Department when there is an institutional commitment to make the referral and the Service merely would like to gather additional evidence for the prosecution. Such a delay would be tantamount to the use of the summons authority after the recommendation and would permit the Government to expand its criminal discovery rights. Similarly, the good-faith standard will not permit the IRS to become an information-gathering agency for other departments, including the Department of Justice, regardless of the status of criminal cases.
38
437 U.S. at 316-17, 98 S.Ct. at 2367-2368 (1977) (footnotes omitted).
39
The dissent found the effects of discovery (obviously made relevant by the majority opinion) fraught with potential for unjustified delay. The majority had no occasion to catalog for us the details of how to strike the balance between the tax man's temptation to dissemble and the taxpayer's temptation to delay. By permitting most of the taxpayer's permissible discovery to be delayed until the one hearing which must be held anyway, the principal device for preventing unreasonable delay already has been implemented. United States v. Harris, 628 F.2d 875 (5th Cir. 1980). At that time and place, I would err more on the side of requiring the tax man to disclose the fact of contact with law enforcement agencies than on the side of permitting him to withhold that information. Disclosing that there has been contact between criminal authorities and civil tax collectors is more likely to compromise legitimate criminal purposes in the imagination than in fact. The frequency and time sequence in which those contacts have been made, together with information already revealed, gives a fairer opportunity to discern whether the court should go further in checking the possibility of dissembling.
40
It is a constant source of amazement that court opinions so frequently reflect an overriding suspicion that taxpayers will use discovery or other proper legal processes for illegitimate purposes, while at the same time tacitly assuming that no great risk exists that tax collectors will not abuse civil process to advance criminal prosecutions of all kinds. What is at stake here is some kind of equilibrium. We have already approved confining discovery to the hearing, severely restricting the application of rules written on their face to apply equally to these as to other matters, and otherwise narrowing the scope of the taxpayer's examination into the legitimacy of the discovery purposes of the IRS. Even the slightest experience in trial practice teaches that conclusory questions rarely help the opposing party to uncover illegitimacy. Hard facts which can be assembled into a construct and examined for consistency and implications are the only really useful discovery tools. Use of civil discovery to circumvent well-settled restrictions on discovery for criminal purposes is one of the illegitimate purposes which the taxpayer has a right to test for himself without relying on self-discipline of the IRS any more than it relies on his self-discipline. Under existing authority, the restrictions are already so extreme as to make the burden almost impossible. The rules appear to invite circumvention.
41
The beginning place for some modicum of balance is to permit the taxpayer to bring to the court's attention the times and frequency of contacts between civil IRS agents and those whose functions are criminal in nature. The chance that the disclosure of the fact of those contacts and their time sequence will unreasonably compromise legitimate criminal investigations is remote to the point of fancy. On the other hand, the very fact of such contacts raises an implication of entanglement of purposes. It is for the trial court, once the frequency and time of contacts is established along with other evidence, to determine whether it should examine in camera, or otherwise, the details of those communications.
42
Viewed in this context, the answers to questions 10, 11 and 12, except for the substance of the information exchanged during interagency contacts, are both relevant to an inquiry concerning legitimacy and harmless to any legitimate governmental expectation. The trial court should be directed to order the answers to these questions. As to the balance of the overruled questions, as well as the timing of discovery, I am in agreement with the majority's conclusions.
1
26 U.S.C. § 7602 provides:
"Examination of books and witnesses
For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized
(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry."
2
The IRS does not have direct authority to enforce a challenged summons; that authority is vested in the federal district courts. See 26 U.S.C. §§ 7402(b), 7604(a)
3
See cases collected in Nuzum, LaSalle National Bank and the Judicial Defenses to the Enforcement of an Administrative Summons, 32 The Tax Lawyer 383, 388-89 (1979). Similarly, the circuits split on whether the intentions of the investigative agent determined whether the investigation was for a solely criminal purpose. Id. at 389-90
4
In LaSalle the Court stated that "(t)hese requirements are not intended to be exclusive. Future cases may well reveal the need to prevent other forms of agency abuse of congressional authority and judicial process." 437 U.S. at 318 n.20, 98 S.Ct. at 2368 n.20
5
The four dissenters in LaSalle, arguing that the sole test should be an objective one of whether the summons was issued prior to a recommendation for criminal prosecution, suggested that inquiry into institutional good faith would "produce little but endless discovery proceedings." 437 U.S. at 320, 98 S.Ct. at 2369 (Stewart, J., dissenting)
6
The information sought is "relevant" if it "appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1)
7
Appellant failed to ask some of the interrogatories at the hearing. We believe that the interrogatories asked, except those listed in the text above, received adequate responses at the hearing
8
If the intervenor's objections were on different grounds, or if he sought to engage in discovery to determine if there were grounds for an objection, the permissible scope of discovery would be different, but it would still have to be tailored to the defenses of coercion, harassment, agreement to serve as an information-gathering agency, recommendation to the Department of Justice, or other bad-faith use of the summons power. See, e. g., Genser I, 595 F.2d at 152
9
The interrogatories are also not relevant to showing that a recommendation of criminal prosecution had already been made to the Department of Justice, deliberate delay in making that recommendation, coercion, harassment, or any other taxpayer defense
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440 F.2d 21
1971 Trade Cases P 73,503
BEVERAGE DISTRIBUTORS, INC., a corporation, Plaintiff-Appellant,v.OLYMPIA BREWING CO., a corporation, Defendant-Appellee.
No. 25463.
United States Court of Appeals, Ninth Circuit.
March 1, 1971, Rehearing Denied April 6, 1971, CertiorariDenied June 7, 1971, See 91 S.Ct. 2209.
Benjamin Parkinson (argued), Willard S. Johnston, of Ackerman, Johnston, Norberg & Parkinson, San Francisco, Cal., for plaintiff-Appellant.
David Brice Toy (argued), John C. McHose, Pamela Ann Rymer, of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., Harry M. Henke, of Skeel, McKelvy, Henke, Evenson & Betts, Seattle, Wash., for defendant-appellee.
Before: BROWNING, WRIGHT and TRASK, Circuit Judges.
TRASK, Circuit Judge:
1
This is an action by Beverage Distributors, Inc. to recover treble damages from Olympia Brewing Company under Section 4 of the Clayton Act, 15 U.S.C. 15, for violation of Section 1 of the Sherman Act, 15 U.S.C. 1, and for injunctive relief. 15 U.S.C. 26. Jurisdiction is also invoked under 28 U.S.C. 1337. (General jurisdiction of district courts over trade restraints and monopolies).
FACTS AND CONTENTIONS
2
Olympia Brewing Company (Olympia) with its principal brewery in Tumwater, Washington, is a brewer of various beer products. It has been in business on the west coast and elsewhere for many years marketing its brew to the public through sales to distributors who buy in quantity and at a wholesale price. The distributor or wholesaler markets his beer to the retailer who sells to the consumer. Olympia in 1969 was the second largest selling beer in California and in 1960 was the fourth largest. Beverage Distributors, Inc. (B.D.I.), is a licensed beer wholesaler distributing beer, among other products, in California, Nevada and Arizona.
3
At the time B.D.I. began distributing Olympia products, B.D.I. was a wholly-owned subsidiary of Safeway Stores, Inc., and was the only entree which a brewer had to place its products with Safeway's stores as a retail outlet. Safeway did not purchase any beer for its stores other than through B.D.I. and B.D.I. did not sell any beer except to Safeway. B.D.I. also sold other brands of beer to Safeway in the same manner.
4
On June 28, 1953, Olympia appointed B.D.I. a distributor for its beer. Exs. S; T. The letter of appointment contains no restrictions on the territory to be served by B.D.I. or on the customers to whom B.D.I. could distribute Olympia beer. It described the relationship as one necessarily based upon mutual trust and confidence, and contains no provision for any definite term.1
5
Other distributors were also appointed by Olympia from time to time. They were principally those already in the beer business and, when appointed, their appointment outlined the areas they were then serving and they were expected by Olympia to properly service every account in their own area. As distribution expanded, territories over which Olympia distributors assumed responsibility to provide full service tended to be non-overlapping. Full service required by Olympia included the duty of the distributor to have every type of Olympia package on the retailer's shelves, to support Olympia merchandising programs, to make deliveries promptly and regularly, to rotate beer and generally to promote the brewer's sales techniques and to protect the quality of the product.
6
Sometime in early 1958 a group of B.D.I. employees purchased the entire capital stock of that company from Safeway. There was testimony that in June of that year B.D.I. began selling beer to customers other than Safeway. As a result of the change in ownership and in policy, a number of brewers such as Hamm, Budweiser, Burgermeister, Falstaff and Schlitz ceased making deliveries of beer to B.D.I. B.D.I. contends that this constituted a boycott in which Olympia participated with other brewers and that it caused B.D.I. to enter into a written agreement with Olympia in July 1958 in which B.D.I. agreed that it would bow to the territorial and customer restrictions which Olympia imposed upon it.2 B.D.I. contended these restrictions prevented it from competing for retailer customers in territories allocated to other Olympia distributors who sold at higher prices. This boycott, with its claimed continuing effect, constituted the first alleged violation of the Sherman Act. Brief for appellee at 12.
7
The second asserted violation of Section 1 of the Sherman Act is alleged to have occurred in 1967. In June of that year the Supreme Court decided United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). As a result of the pronouncements contained in that decision on August 7, B.D.I. notified Olympia that B.D.I. intended to compete with other Olympia distributors for the sale of Olympia beer to retailers other than Safeway. In September of 1967, Olympia adopted and put in operation a fair trade program, lawful in California, the effect of which was to prevent B.D.I. from selling below Olympia's 'suggested' prices. The adoption of this fair trade program is the second alleged violation of Section 1. Thereafter B.D.I. continued to make sales of Olympia beer to retailers other than Safeway at fair trade prices. When further orders came to Olympia Brewing Company from B.D.I., Olympia refused to fill them. B.D.I. had filed this action in the meantime and the Olympia executives stated, as their reason for Olympia's refusal to deal, that they could not do business with someone in whom they no longer had confidence and who had lost confidence in them. This refusal to deal constituted the third alleged violation of the Sherman Act.
8
This action was filed on August 30, 1967, seeking treble-damages for violations of Section 1 as well as injunctive relief against the refusal to deal. A preliminary injunction enjoining Olympia from refusing to sell to B.D.I. is still in effect.3 The action came on for trial and a lengthy jury trial was held. The reporter's transcript contains over 2,500 pages with 210 exhibits for the plaintiff and 48 for the defendant. At the conclusion, the issues were submitted to the jury under a form of general verdict covering liability as well as damages. Most of the factual issues were in sharp disagreement. The plaintiff made no objection to the instructions given but asserts error in two refused instructions. The plaintiff also complains of the introduction of certain evidence. The jury having been instructed upon both liability and damages found for the defendant. The trial court considered a motion for judgment notwithstanding the verdict and in the alternative for a new trial and denied both.4 We affirm.
EFFECT OF THE VERDICT OF THE JURY
9
When a jury verdict has been returned and it has been considered by the trial judge in the light of a motion for judgment notwithstanding the verdict and in the alternative for a new trial, the scope of appellate review is strictly limited. It then becomes our duty to affirm if all of the evidence together with favorable inferences therefrom reasonably supports the determination of fact made by the jury, and the judgment of the court rendered thereon. Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944); Insurance Co. of North America v. Thompson,381 F.2d 677, 681 (9th Cir. 1967); Sunkist Growers, Inc. v. Winckler & Smith Citrus Produce Co., 284 F.2d 1, 17-18 (9th Cir. 1960), modified, 289 F.2d 933, reversed on other grounds, 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962); Richfield Oil Corp. v. Karseal Corp., 271 F.2d 709, 712 (9th Cir. 1959), cert. denied, 361 U.S. 961, 80 S.Ct. 590, 4 L.Ed.2d 543 (1960). Cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 124, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 364 (1962). In this posture of the case we are required to view the evidence in a manner most favorable to the prevailing party. As appellant correctly points out, however, these familiar rules of construction do not entirely foreclose appellant's rights even on factual matters, for if the undisputed facts clearly disclose that the appellee was not entitled to succeed, this court should not and would not hesitate to set aside the judgment. Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968).
10
Likewise, if the verdict of the jury or the judgment of the district court that Olympia did not violate the Sherman Act, was premised on an erroneous legal standard to be applied, the verdict and judgment could not stand. United States v. Parke, Davis & Co., 362 U.S. 29, 44, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). In this instance we do not believe the verdict and judgment contain either frailty.
11
THE TERRITORIAL AND CUSTOMER RESTRICTION CLAIM
12
B.D.I. relies first of all upon activity of Olympia which it asserts amounts to an unlawful restriction upon the right of B.D.I. to compete with other distributors of Olympia beer in territories which the latter serve. This, it contends, is a per se violation of Section 1. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). The activity of Olympia relied upon by B.D.I. consists of Olympia's participation in an alleged boycott of B.D.I. by a number of national brewers calculated to force B.D.I. to observe territorial and customer restrictions, and an exchange of correspondence which B.D.I. asserts constituted an agreement forced on B.D.I. by Olympia to observe such restrictions. Both events occurred in 1958, but with effects asserted to continue until 1967.
13
With respect to the asserted boycott, it appears that in June 1958 a group of B.D.I. employees purchased all of the capital stock of B.D.I. from Safeway Stores, Inc., the prior owner. Before that date there had been no effort by Safeway to use its wholly-owned subsidiary, B.D.I., for any purpose other than to service its own stores. Upon separation of B.D.I. and Safeway, B.D.I. began selling beer to customers other than Safeway, although none of Olympia's products were so sold. Shortly after this there was a California Brewers Association meeting in San Francisco. Most of the major breweries had representatives in attendance. Olympia was only an associate member but its President, Mr. Schmidt, was present at the association meeting. It was at this meeting that Mr. Picard, President of Burgermeister Brewery, related to some of the officials of other breweries the changed plan of B.D.I. to distribute beer products and expressed Burgermeister's considerable concern over the change. There was no concert of action proposed or entered into nor did Mr. Schmidt make any comment or offer any suggestion. There were later meetings including one at Mr. Picard's office, but Mr. Schmidt did not attend. Some of the major breweries halted shipments to B.D.I. at about this date or a little later. B.D.I. introduced evidence to the effect that Olympia's sales manager notified B.D.I. that Olympia would make no further shipments to B.D.I. until he had an opportunity to discuss basic policy with his principals who were not available at this time. Ex. 41, R.T. 310-13.5 Phillip Hannah, Sales Manager of Olympia, testified that he was not aware that any other breweries had stopped making shipments to B.D.I. in July of 1958. R.T. 1243-45.
14
This brings us to the second item of evidence upon which B.D.I. relies to establish a per se territorial and customer restriction. This consists of an exchange of letters beginning with a letter of B.D.I. to Olympia under date of July 11, 1958, Ex. 51, and a response thereto from Olympia dated July 28, 1958. Ex. 52. The letter from B.D.I. was unsolicited and enclosed a 'courtesy copy' of an antitrust complaint filed by B.D.I. and Safeway against certain brewers and others. It explained some of the B.D.I. problems and contained these two paragraphs:
15
'Some brewers have recently expressed fear that we might sell their product, without their consent, to retailers other than Safeway. You may rest assured that we shall not sell your products to anyone other than Safeway without your prior consent and approval.
16
'Circumstances change, of course, and if opportunities for a broader form of distribution should arise, we would like to feel free to discuss them with you.'6
17
On July 28, 1958, Mr. Halgren, Sales Manager of Olympia, replied thanking B.D.I. for the 'courtesy copy' of the antitrust complaint against others but stating he did not understand it and hence passed it to the company attorneys. He continued:
18
'In regard to the third and fourth paragraphs of your letter, we would at the present time desire to hold yourself to your indicated commitment not to sell our product to anyone but Safeway. If you should desire to effect sales to others than Safeway, please immediately contact us so that we may review the whole situation.'
19
Two observations are made by Olympia about (1) the boycott and (2) the territorial restriction. There was no evidence in the record that Olympia knew of or participated in any such boycott or consulted with any other brewer about it. Indeed the testimony of Olympia's officials is to the contrary. The fact that Safeway and B.D.I. filed an antitrust suit against Burgermeister and Falstaff at this time but did not join Olympia to whom it sent a 'courtesy copy' of the complaint would indicate that B.D.I. did not consider Olympia a participant. The imposition of territorial and customer restrictions by Olympia on its distributors was flatly denied by Olympia officials and some of the distributors who testified.7
20
All of the 1958 evidence, which was the basis for the charge of horizontal restraint by boycott and the vertical restraint by exchange of letters, pre-dated the four year limitation period of the Act (15 U.S.C. 15b) which restricts plaintiff's proof to the period from September 1, 1963, to August 30, 1967. Over objection, the court admitted such 1958 evidence for the limited purpose, if the evidence did so, of illuminating the subsequent conduct of Olympia but not for the purpose of establishing liability.8
21
Much of whatever law was unsettled about territorial and customer restrictions prior to June 12, 1967, was resolved in United States v. Arnold, Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). That case involved challenged vertical restrictions as to territory and dealers. The restrictions were assertedly imposed by the manufacturer of bicycles who had two methods of distribution. One was its practice of franchising of retailers in which Schwinn retained all indicia of ownership including title, dominion and risk. The imposition of restrictions in this situation was held not to be an unreasonable restraint of trade where the facts disclosed:
22
'(1) that other competitive bicycles are available to distributors and retailers in the marketplace, and there is no showing that they are not in all respects reasonably interchangeable as articles of competitive commerce with the Schwinn product; (2) that Schwinn distributors and retailers handle other brands of bicycles as well as Schwinn's; (3) in the present posture of the case we cannot rule that the vertical restraints are unreasonable because of their intermixture with price fixing; and (4) we cannot disagree with the findings of the trial court that competition made necessary the challenged program; that it was justified by, and went no further than required by, competitive pressures; and that its net effect is to preserve and not to damage competition in the bicycle market.' 388 U.S. at 381-382, 87 S.Ct. at 1867.
23
The rule of reason is to be applied in such a situation. As to outright sales, however,
24
'Once the manufacturer has parted with title and risk, he has parted with dominion over the product, and his effort thereafter to restrict territory or persons to whom the product may be transferred-- whether by explicit agreement or by silent combination or understanding with his vendee-- is a per se violation of 1 of the Sherman Act.' Id. at 382, 87 S.Ct. at 1867.
25
The rule applies not only to sales to distributors but also as to sales to retailers. Id. at 378, 87 S.Ct. 1856.
26
Here the appellant's first argument is directed at a horizontal restraint. It asserts that there was concerted action among brewers which amounted to a combination or a conspiracy to boycott B.D.I. unless and until it would come to heel and limit its sales to its primary customer, safeway. The difficulty with appellant's position is that there was no direct evidence of such a plot in which Olympia participated. Olympia officials denied it. The situation occurred in 1958. There was little if any evidence that it continued after August 30, 1963, and into the period not barred by limitation. There was direct evidence to the contrary. The jury found against the appellant and the court refused relief notwithstanding the verdict. Much of the evidence was testimonial. We do not find it so unsubstantial that we can set aside the judgment.
27
Combination and conspiracy having been determined against appellant, we turn to a consideration of the exchange of correspondence in 1958. Was there contained within the text of that exchange either an explicit agreement or an implied or silent understanding between the lines as would constitute a per se violation? And if there were, did it continue from July 1958 beyond August 30, 1963, to infect the relationship between the parties during the actionable period?
28
In contract terms the letters do not constitute an agreement. The first two paragraphs of the letter of July 11, 1958, are explanatory only. The third and fourth paragraphs which are quoted above contain what appellants term to be the 'offer' as expressed in contract terms. Yet in such terms it does not offer to buy in any amount for any price or for any length of time. It does, of course, state that B.D.I. will not sell any Olympia products to anyone other than Safeway without Olympia's prior consent and approval. It continues, however, to say that if 'opportunities for a broader form of distribution should arise,' B.D.I. would like to feel free to discuss them. An implication open to the jury therefore would be that the historical pattern of distribution by B.D.I. exclusively to Safeway is satisfactory and that B.D.I. has no existing better or broader form of distribution. But if one should arise, B.D.I. would like to explore it. It certainly does not intimate that its present desire is to sell to others and that it proposes to forego that right in consideration of a counter promise from Olympia.
29
The Olympia reply simply states that 'at the present time' Olympia would like B.D.I. to hold itself to its indicated manner of distribution, i.e. to Safeway. It does not, however, foreclose different arrangements but asks only that it be contacted so that Olympia may review the whole situation in the event of a change.
30
It is to be noted that the letter written by B.D.I. was unsolicited. There was no evidence of a demand or even a request by Olympia for any letter from B.D.I. There had been a complete change in the corporate ownership and the letter was an affirmation of the fact of 'business as usual.' It was a message of reassurance. The B.D.I. letter did not require or even request a response. The Olympia letter was equally unsolicited and equally general. Although appellants suggest that it was a contract until terminated, the language clearly shows that it was B.D.I. which reserved the option to alter its policy. Olympia only requested that B.D.I. continue its announced intention to continue the usual business practices 'for the present time' and invited a discussion of a change at any time B.D.I. should wish it. There was no statement that there would be a refusal of any change which B.D.I. proposed. Failure of appellant to request a change of Olympia under these circumstances could only indicate its satisfaction with the existing arrangement and a willingness to continue under it 'until opportunities for a broader form of distribution,' should arise.
31
A gratuitous and unsolicited statement of policy or of intention which receives the concurrence of the party to whom it is addressed, does not constitute a contract. Goetz v. State Farm Mutual Automobile Insurance Co., 31 Wis.2d 267, 142 N.W.2d 804, 807 (1966); 1 Williston on Contracts (3d ed., Jaeger) 1A, p. 5. Or as it is sometimes stated, since an offer must be a promise, a mere expression of intention or general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer. Lahaina-Maui Corp. v. Tay Tet Hew, 362 F.2d 419 (9th Cir. 1966); Winand v. case, 154 F.Supp. 529 (D.Md.1957); Parrish v. General Motors Corp., 137 So.2d 255 (Fla.App.1962); 1 Williston, id., 26, p. 59. In Winand as here reliance was upon a letter dated June 9, 1944, and a response thereto. Paragraph 3 of the letter began:
32
'3. It will be desirable to us that your present president, Mr. Henry A. Brehm, become Chairman of the Board and be paid a salary of $2,500 per year so long as the operations justify; * * * it is also our desire to have both William Winant and George Blome remain active in the business indefinitely, and it is our intention that, if they show the ability and application required to make the business successful under reasonable direction of our organization, they shall have a reasonable amount of the new common stock, which will be issued exclusively to members of our organization. * * *' 154 F.Supp. at 533.
33
Winand sued to recover damages for breach of a written contract to employ him for life. The court denied relief saying that 'at the most' the plaintiff had a contract of employment for an indefinite period, terminable at will. In Winand the proposals were considerably more formalized than the exchange of letters here. The court said:
34
'The aforegoing conclusions aside, the plaintiff still, as a matter of law, could not recover. The wording of the letter of June 9, 1944, and in particular the wording of paragraph 3 therein, are subject to the criticism advanced by Judge Parker in Lucas v. Federal Reserve Bank of Richmond, 4 Cir., 1932, 59 F.2d 617, 619:
35
'It is clear that the first cause of action states no ground of relief either in contract or in tort. The allegation that the Reserve Bank promised to 'extend such additional accommodations in the way of discounts as would be necessary to meet the additional burden assumed' sets forth none of the essential terms of a contract. It does not show the amount of credit to be extended, the period of the credit, the amount or kind of security to be deposited as collateral, or the interest to be paid. The court cannot see by reading it any definite agreement which the law could enforce. In the language of Mr. Justice Holmes, 'On the face of it, it does not import a legally binding promise, but rather a hopeful encouragement, sounding only in prophecy.' Hall v. First Nat. Bank of Chelsea, 173 Mass. 16, 53 N.E. 154, 155, 44 L.R.A. 319, 73 Am.St.Rep. 255. It is well settled that such a vague promise does not constitute a binding and enforceable contract.' Winand v. Case, supra, 154 F.Supp. at 541-542.
36
Judged again by standards of contract law as appellant proposes, it is plain that where the promisor retains the unlimited right to decide later the nature or extent of his performance the promise is illusory. Eastern Transportation Co. v. Blue Ridge Coal Corp., 159 F.2d 642 (2d Cir. 1947).
37
Even though Section 1 of the Sherman Act speaks in terms of 'contract', it appears clear that appellant, in the light of Schwinn, attempts to prove more than is required. For from Schwinn, we apparently learn that Section 1 violations are not judged by formal contract principles. Rather the Court says that once the manufacturer has parted with title and risk, any 'effort' to restrict territory within which the purchaser may re-sell or persons to whom the product may be transferred is a per se violation. Accepting the language of Schwinn read as narrowly as appellant could urge upon us we still cannot find that the necessary vertical restraint has been imposed. With respect to any conspiracy or combination to impose vertical territorial or customer restrictions, that problem has been determined by the jury which found no such restrictions. The trial judge has re-examined the matter on a motion for judgment n.o.v. and has determined that the verdict 'is not so inadequately supported by the evidence as to require a new trial' and has denied the motion. We cannot say that those two judgmental decisions on conflicting evidence should be overturned. Nor do we find from an examination of the instructions and rulings that there has been any erroneous application of principles of law as in Albrecht, supra. So we return again to the question as to whether or not the letter exchange constitutes an effort at restraint. We have noted that it does not constitute a contract. Likewise it would support a jury finding that it does not constitute an 'effort' to impose territorial or customer restrictions. As of 1958 the responsive letter of Olympia is in terms of 'we would desire' that you hold yourself to your indicated commitment. It does not say 'we insist' or that 'we must require' or that 'we demand.' And, of course, it invites a review of the situation should, as B.D.I. suggests in its opening letter, 'circumstances change' with new opportunities opening which would stimulate a desire for B.D.I. to 'discuss them with you.' The proposal which the new ownership of B.D.I. made in 1958 was one which left the initiative up to B.D.I. to suggest opportunities for a broader form of distribution for B.D.I. Assuming arguendo that it was a continuing contract from day to day, or for a reasonable period, there is no evidence that B.D.I. ever requested or even suggested a policy change. On the contrary, there was evidence that other distributors did sell outside of their service areas and Olympia did nothing about it. R.T. 1515-17. There is also evidence that other distributors could sell at prices which varied from the suggested prices and Olympia did not complain. R.T. 1568. The jury was justified in believing that B.D.I. was under no greater restraint. The 1958 evidence was outside the limitation period for liability to be imposed and the court so instructed with no objection from either side. The liability period began on September 1, 1963. There were no requests by B.D.I. for a discussion of different arrangements after 1963. Failure to request any change under these circumstances would justify an inference of their satisfaction with the existing arrangement.9
38
The restraint upon B.D.I. in 1958, by the terms of Olympia's letter was 'for the present.' Beginning September 1963 both the method of doing business by Olympia, its instructions to sales people by sales executives and its official company policy as set out by its counsel, would indicate no restraint upon B.D.I. If any restraint was felt, it was self imposed. Id.
THE FAIR TRADE PROGRAM OF OLYMPIA
39
B.D.I. notified Olympia by letter dated August 7, 1967, that it intended to broaden its base of distribution by reselling to certain other customers. Ex. 12. The announcement indicated that the additional customers to whom sales would be made were customers of a type who would themselves handle Olympia products through a central warehouse system and did not include any small retail accounts. The response of Olympia to the August 7, 1967, announcement was that 'it is the position of our company that every distributor has a right to sell to customers of his own selection.' Ex. 13.
40
However the announcement did compound a concern which Olympia already had with B.D.I. This was its concern with the typical method of warehouse distribution to chain outlets typified by B.D.I., which Olympia believed resulted in loss of quality control. R.T. 186-91; 1069; 1310. It was the judgment of the executives of Olympia that there were three business decisions that could be made in the light of the announcement by B.D.I. First, to do nothing and run the risk of poor handling and damage to company image with the public; second, to cease deliveries; and, third, to institute a fair trade program with wholesale distributors which management felt would deter the proliferation of warehouse distribution. The president of the company chose the latter alternative.
41
' Fair trade,' of course, simply means an agreement by which the manufacturer fixes the price at which the wholesaler or retailer, as the case may be, can legally re-sell the product. Such an agreement, if otherwise lawful, binds not only the signers but the non-signers of the fair trade contract.
42
The anathema of price fixing underlying the Sherman Act has been softened somewhat by the fair trade statutes. Congress by enacting the Miller-Tydings Act and, later, the McGuire Act has permitted price fixing so long as it is subject to the limitations of those amendments. United States v. McKesson & Robbins, Inc., 351 U.S. 305, 76 S.Ct. 937, 100 L.Ed. 1209 (1956); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944). Those limitations permit price fixing only where:
43
1. The commodity or label bears the trademark, name or brand of the producer or distributor.
44
2. The articles fair-traded are in free and open competition with other commodities of the same general class produced or distributed by others; and
45
3. The fair trade agreements are lawful in the state where the resale is to be made.
46
Overall is still the proscription that whatever may be the rights of the individual producer to enter into vertical agreements with those who distribute or sell his goods to maintain their resale price, he may not enter into any agreement or combination with other producers to utilize fair trade agreements to fix prices and thus violate the basic purpose of the Sherman Act. United States v. Frankfort Distilleries, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945). In other words, fair trade agreements may not be used as a subterfuge to accomplish purposes otherwise illegal under the antitrust laws.
47
There does not appear to be any argument but what the first three conditions for fair trading are met here. The product is clearly identified under the label of Olympia Brewing Company as an Olympia product; there are numerous national and regional beers competing in the same market, some of them out-selling Olympia; and, finally, fair trade agreements are lawful in California and were at the dates in question. Cal.Bus. & Prof.Code, 23,004, 24,749, 24,75010 (West Supp.). B.D.I. does contend, however, that a combination existed which made fair trade agreements unlawful. This combination, it is asserted, was one among Olympia's wholesalers and their trade association to establish a market-wide fair trade program and thus indirectly force B.D.I. out of its central warehouse delivery system. Whether there was such a combination as would make unlawful the otherwise lawful fair trade agreements was a question for the jury on disputed facts. The court gave careful instructions on the entire subject. Those instructions met with the approval of all counsel. The verdict of the jury and the judgment of the court supporting appellee's position on this point is supported by very substantial evidence.
48
Appellant also argued the theory that a violation of Section 1 was complete when B.D.I. acquiesced in the resale price maintenance program initiated by Olympia. The restraint that existed upon B.D.I. was one allowed by the fair trade law. And the previously discussed evidence of any other unlawful purpose, restricting B.D.I.'s ability to compete, is clearly contradicted. Thus, no violation of the Act is established.
49
OLYMPIA'S SEPTEMBER 1967 REFUSAL TO DEAL WITH B.D.I.
50
The final argument advanced by B.D.I. in support of its substantive position that Olympia violated Section 1 of the Sherman Act is predicated upon Olympia's refusal to deal further with B.D.I. in September 1967. B.D.I. contends that this refusal to deal was a violation of the antitrust laws because it was an additional act in perpetration of an unlawful conspiracy and combination to restrict B.D.I.'s sales to customers other than Safeway. Reliance is placed upon Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) in support of this legal proposition. We fail to find the same comfort in Albrecht for B.D.I.'s position on these facts that it does.
51
Nonetheless the question of the wrongful termination vel non of B.D.I. by Olympia was submitted to the jury upon instructions to which no objection was interposed. (Except for the refusal to give 31A which will be commented upon infra). Those instructions submitted to the jury the plaintiff's theory of the case and permitted a finding for the plaintiff if the jury found the disputed facts in its favor. The jury did not find for B.D.I. We agree with the trial court that there was ample evidence to support that verdict.
52
The cases appear to clearly establish that a single manufacturer can select his own customers and sell to these and not to any others, at least where there are other and equivalent brands readily available. United States v. Arnold, Schwinn & Co., supra, 388 U.S. at 376, 87 S.Ct. 1856; United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919); Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 78 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Scanlan v. Anheuser-Busch, Inc., 388 F.2d 918, 921 (9th Cir.), cert. denied, 391 U.S. 916, 88 S.Ct. 1810, 20 L.Ed.2d 654 (1968).
53
'In the absence of any purpose to create or maintain a monopoly, the (Sherman) act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.' United States v. Colgate & Co., supra, 250 U.S. at 307, 39 S.Ct. at 468.
54
When B.D.I. was first named as a distributor, it was made very plain and in writing that there was no contract for any term. The arrangement was one strictly on an order-by-order basis terminable at will by either party.11 B.D.I.'s officers admitted at the trial that B.D.I. had no contract with Olympia and they recognized the relationship for what it was. Mr. C. H. Jones, president of B.D.I., R.T. 700; Mr. R. T. Girard, chairman of the board, R.T. 2068-69.
55
The court, however, instructed the jury that although there was no contract between the parties, and although they were on an order-by-order basis, a termination may be unlawful if done by the brewer as part of and pursuant to an agreement, combination or conspiracy in restraint of trade or commerce within the meaning of the antitrust laws. R.T. 2330. This was appellant's theory. The jury found against appellant.
56
The appellant complains that the refusal of the court to give its requested instruction No. 31A is reversible error. We do not think so. The substance of 31A was more than adequately covered by the court's instruction. R.T. 2328-70.
57
The appellant also urges that the court's refusal of its proposed instruction No. 45 constituted reversible error. The instruction had to do with the lawfulness of fair trade agreements. The jury was instructed at length concerning fair trade agreements. We find nothing in the proposed instruction No. 45 which would have added to that which was already given.
ADMISSION OF IMPROPER EVIDENCE
58
Appellant prior to trial filed a motion for a rule excluding evidence.
59
'Plaintiff moves the court for a ruling that the undisputed facts establish that the restraints imposed by Olympia and its distributors constituted per se violations of the Sherman Act and that evidence of reasonableness or other justification for such restraints will be excluded.'
60
The motion was based upon depositions of corporate officers certain excerpts from which were attached.
61
We have examined the reporter's transcript to read some of the evidence which appellant in its brief points out as being objectionable within the motion. Yet no objection was interposed by appellant's counsel to its introduction and so far as we have been able to learn, no motion to strike was made. Certainly counsel cannot expect the trial court to sua sponte sift the evidence as it comes in to see whether it is within the parameter of appellant's motion, even should we consider, arguendo, that it was meritorious.
62
We do not believe that the point made by appellant is well taken.
DAMAGES AND INJUNCTION
63
Considerable evidence was introduced on the question of damages after evidence of liability had been completed. The jury was fully instructed on the question of damages. Both parties submitted their proposals. No objection was made to those instructions as given and no objection raised as to any proffered instruction refused. The jury's verdict was for the defendant.
64
The injunctive relief sought seeks to enjoin each of the violations which B.D.I. has asserted and the jury has found not to exist. The judgment based on that verdict being affirmed, the prayer for injunctive relief fails.
65
The judgment is affirmed.
1
Exhibit S refers to a policy statement of 1896 by the founder of the Olympia Brewing Company which was 'enclosed.' The enclosure was not found among the exhibits. A restatement of at least a portion of this policy was contained in Ex. U, dated June 21, 1960 from Adolph Schmidt, Jr., President of Oylmpia, to A. D. Morton, president of B.D.I. Among other statements of Olympia policy was the following:
'As has been explained to you, at no time do we consider there is any value attached to a distributorship of Olympia Beer. In other words, you have purchased nothing nor, should we ever find it necessary to make a change, have you anything to sell.'
Mr. Morton acknowledged receipt of this letter on June 24, 1960, Ex. V, saying:
'We still have in our files your letter of June 2, 1953, welcoming us as Olympia distributors in California and outlining your policies.
'We are happy to be a member of the Olympia family, and compliment you on the high level of your business principles which go hand in hand with the outstanding quality of Olympia Beer.'
2
The principal criticism of B.D.I. expressed by a brewery official at a July 2, 1958, meeting leading up to the boycott was that of Mr. Picard, an official of Burgermeister Brewing Company. Subsequently, and prior to July 11, 1958, (when B.D.I. asserted it was coerced into an agreement with Olympia containing territorial and customer restrictions by the same boycott) B.D.I. and Safeway as plaintiffs filed a complaint in the Federal Court at San Francisco against 'certain brewers and others under the federal antitrust laws,' which included Burgermeister. Although B.D.I. now complains that Olympia participated in that illegal boycott it did not then join Olympia as a party defendant to that suit
3
This court's opinion modifying the injunction is reported in 395 F.2d 850 (1968)
4
'The issues in this case, involving conflicting testimony and evidence susceptible of different inferences concerning the central issue of combination and conspiracy vis a vis independent action, having been fully and fairly presented to a jury, as demanded by plaintiff, and the jury having by its general verdict resolved said and all other issues against plaintiff and, it appearing to the court that said verdict is not so inadequately supported by the evidence as to require a new trial. * * *' C.T. 618
5
B.D.I. leans heavily for support of its boycott theory and its restriction argument on a B.D.I. memorandum of a telephone conversation which occurred on July 3, 1958, when Art Halgren of Olympia called A. D. Morton of B.D.I. and stated he was not going to fill existing orders for Olympia products 'until he had an opportunity to discuss basic policy with his principals.' This memo stated that B.D.I.'s Morton affirmed that it had not sold any Olympia to others 'and had no intention of doing so.' When asked by Halgren if this was a temporary policy, Morton said, 'that as far as we knew now it was our policy for the foreseeable future,' and that if the policy changed 'we would discuss it with the brand owner involved.' Neither Halgren or Morton testified at the trial but Hannah, Ass't. Sales Mgr. at the time, testified that he had not talked to Morton on this subject and knew of no one else in Olympia who had done so. R.T. 1301. Thus we are entitled to assume that there was an evidentiary conflict on this fact question and that it was resolved against B.D.I. The contention that this conversation is a matter of uncontroverted evidence cannot be supported
6
An exact duplicate of this letter was sent to Schlitz Brewing Co., Hamms Brewing Co. and Anheuser-Busch Brewing Co
7
There was other evidence introduced by B.D.I. suggesting territorial restrictions. (Plaintiff's Exs. 99 & 100 in particular). Olympia officials explained this evidence by asserting that it insisted that its distributors properly 'service' its accounts, i.e., see that all types of Olympia packages were on the shelves, that the beer be rotated so that stale beer would not be sold, carry out point of sale merchandising programs, etc., and that the ability of the distributor to provide such service constituted the only restraint upon his territory
Exhibit 99 was an affidavit filed by Olympia as a co-defendant with others (including B.D.I.) in a suit brought by Thriftimart, Inc., seeking a mandatory injunction to force Olympia to sell to Thriftimart through B.D.I. Among other statements in the affidavit dated September 23, 1965, by T. L. Morgan, Finance Officer of Olympia, is one bearing on the letter correspondence of 1958.
'10. At no time has Olympia Brewing Company entered into a conspiracy with any one or more brewers or with BDI or any other entity for the purpose of preventing or restricting BDI from selling Olympia Beer to Thriftimart, Inc., the Plaintiff in the above referred to suit. Furthermore, while BDI has informed Olympia Brewing Company that is will not sell Olympia Beer to any retailer other than Safeway without first obtaining the consent of Olympia Brewing Company, such consent has never been requested nor has Olympia Brewing Company ever informed or advised BDI that it cannot sell Olympia Beer to Thriftimart, Inc. or any other retail account.'
8
The court admonished the jury as follows when the evidence was introduced:
'Now, regardless of how this issue may be determined, a law called the Statute of Limitations limits the period for which plaintiff B.D.I. here can claim violation of the anti-trust law and recover damages therefor to the period of four years preceding the commencement of its present lawsuit. This lawsuit was commenced on August the 30th, 1967. Thus, the preceding four years would go back only to August 30th, 1963. B.D.I., therefore, cannot rely on acts of Olympia done before August the 30th, 1963, to fix liability of Oylmpia for violation of the antitrust law, even if prior to that date, that is, prior to August 30th, 1963, acts of Olympia were, we can assume, in violation of the anti-trust laws.
'B.D.I., therefore, must rely, for its purposes in this case, upon the acts of Olympia occurring after August the 30th, 1963.
'Consequently, the jurors must look only to the acts of Olympia occurring after August 1963, in determining whether Olympia violated the anti-trust law. That is, whether Olympia, in its dealings with B.D.I. during the four-year period prior to commencement of its lawsuit, was acting independently for its own business interests, as it claims, or was acting in agreement, combination or conspiracy in restraint of trade with other brewers or distributors.' R.T. 707-08.
No objection was made to this admonition nor to the court's instruction in the same vein at the close of the case. R.T. 2326-28.
9
In July 1966, Sherman Huffine, vicepresident and legal counsel for Olympia sent a memo to Harry Moore, district manager for the Los Angeles area in which he instructed Mr. Moore to express company policy as follows:
'Olympia Brewing Company cannot and does not tell its distributors to whom they should sell, that we do not interfere with the sales procedures of our distributors, that they have free choice of customers and that our company sells only to its distributors, who are licensed wholesalers.'
10
ABC Distributing Co. v. Distillers Distributing Co., 154 Cal.App.2d 175, 316 P.2d 71 (1957)
11
See footnote 1, supra
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110 B.R. 848 (1990)
In re PETTIBONE CORP., et al., Debtors.
PETTIBONE CORP., et al., Plaintiffs,
v.
Gary BAKER, Defendant.
PETTIBONE CORP., et al., Plaintiffs,
v.
Carl EASLEY, et al., Defendants.
PETTIBONE, CORP., et al., Plaintiffs,
v.
Edward F. HARRIS, et al., Defendants.
PETTIBONE, CORP., et al., Plaintiffs,
v.
Kenneth WHITE, et al., Defendants.
Bankruptcy Nos. 86 B 1563-86 B 1571, Adv. Nos. 89 A 0381, 89 A 0383, 89 A 0387 and 89 A 0382.
United States Bankruptcy Court, N.D. Illinois, E.D.
February 7, 1990.
*849 *850 James J. Hickey, Segal, McCambridge, Singer & Mahoney, Ltd., Chicago, Ill., for Allied Corp.
Martin N. Fealk, Provizer, Lichtenstein, Pearlman & Phillips, P.C., Southfield, Mich., Robert D. Kolar, Robert D. Kolar & Associates, Chicago, Ill., for Granite State Ins. Co.
David B. Lowe, Winston & Strawn, Chicago, Ill., for debtor.
James C. LaForge, Chadbourne & Parke, New York City, Marilyn I. Kosin, Towbin & Zazove, Ltd., Chicago, Ill., for Rockwell Intern. Corp.
Gloria E. Block, Chicago, Ill., for James & Jeannie Carter.
Ronald L. Futterman, Hartunian, Futterman & Howard, Chicago, Ill., for the PL Committee.
John H. Ward, Much Shelist Freed Denenberg Ament & Eiger, P.C., Chicago, Ill., for Unsecured Creditors Committee.
MEMORANDUM OPINION ON MOTIONS FOR DEFAULT JUDGMENT, SUMMARY JUDGMENT, AND RELIEF UNDER 11 U.S.C. § 362(d)
AMENDED AND REISSUED FEBRUARY 7, 1990
JACK B. SCHMETTERER, Bankruptcy Judge.
In these four Adversary actions, Pettibone seeks a declaration that the state court personal injury suits filed against it by the Defendants during Pettibone's reorganization are null and void and also seeks an injunction enjoining the continuation or refiling of each action. The four personal injury suits at issue were filed without leave of this Court in Defendants' local state and federal courts after Pettibone had filed its petition here under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code").
These four adversary actions are now before the Court on motions of Plaintiff-Debtor, Pettibone Corp., for default judgment against Defendants, Gary Baker, and for summary judgment against Defendants Carl Easley, et al., Edward F. Harris, et al., and Kenneth White, et al., and the cross-motions of Easley and Harris for summary judgment. Easley, Harris and White have also requested relief under 11 U.S.C. § 362(d) for annulment of the stay imposed upon all actions against Pettibone during the pendency of its reorganization.
The four cases are discussed in this single opinion, as they deal with common issues of law and similar facts. Assorted briefs on the motions and statements of facts under Local District Rule 12(l) and (m) have been submitted by Pettibone and the Easley, Harris and White Defendants.
For reasons stated below, Pettibone's motions in the four cases are denied and the defense motions for summary judgment are also denied. However, this Court will enter orders in each case which annul for each Defendants the stay imposed in connection with Pettibone's reorganization. The pending actions of Defendants against Pettibone are therefore to proceed in the courts in which they were filed.
PROCEDURAL BACKGROUND
Pettibone filed its Chapter 11 Petition in this Court on January 31, 1986. Under 11 U.S.C. § 362(a), Pettibone was immediately protected by automatic stay against law suits being filed against it during pendency of its reorganization. After Pettibone had filed its Petition, all of the Defendants filed their respective personal injury suits for injuries alleged to have occurred during 1984 and 1985. The basis of the suits are injuries allegedly suffered from equipment manufactured by Pettibone. Pettibone does not contend that any of the Defendants commenced their actions against Pettibone in willful or knowing violation of the automatic stay. All four personal injury suits were commenced within the individually applicable state law limitations period for personal injury suits.[1]
*851 After service on Pettibone of summonses and complaints in these actions, each Defendants was notified by Pettibone of the pending reorganization. They were all advised that their suits could not proceed, as Pettibone was protected by the automatic stay. All Defendants have since filed timely claims as creditors in the Pettibone bankruptcy, based upon their respective unliquidated personal injury claims.
For purposes of the Pettibone reorganization and associated Plan, all four Defendants were scheduled in the "PL Claimants" class of creditors. This class is composed of people who had timely-filed claims against Pettibone, based upon allegations of personal injury under products liability causes of action for which neither liability nor damages had been determined. All Defendants were solicited for approval of the reorganization plan proposed by Pettibone as part of the "PL Claimants" class and were included as members of that class in the materials filed in connection with confirmation of the final plan.[2] All four Defendants also received notice from this Court that Pettibone's reorganization Plan was confirmed on December 9, 1988. By reading the notice, together with the plan they had previously received, the Defendants could ascertain that the automatic stay would be lifted, as indeed it was, on December 28, 1988. The order confirming the plan authorized the "PL Claimants" to prosecute their pending actions as identified in the schedules annexed to the reorganization plan or as might be authorized by order of this Court.
Pursuant to § 108(c) of the Bankruptcy Code, 11 U.S.C. § 108(c), when the automatic stay was lifted, time for filing actions which could not be filed while the stay was in effect began to run. Under § 108(c)(2), the minimum time allowed for filing such actions is 30 days, unless state law gives a longer period. Pettibone asserts that because the respective state statutes of limitations applicable to the four suits expired while the stay was in effect and because the Defendants did not refile their personal injury actions within 30 days of the day they were given notice that the automatic stay was lifted, they are barred by limitations and should be enjoined from litigating their claims. This argument assumes that Defendants' original case filings were void, because they were filed while the automatic stay was in effect. In short, it is argued that the original filings were a nullity and refilings are now too late because state limitation periods and also the 30 day grace period under § 108(c)(2) have all run.
Defendants contend that suits filed during the automatic stay period were not void but merely voidable. They argue that only if Pettibone had requested the state courts or bankruptcy court to find the actions void, or if Pettibone had moved to have them dismissed while the stay was in effect, would these suits be void.
Alternatively, Defendants assert that Pettibone's conduct following lifting of the stay was intended to lull the Defendants into believing they needed to take no further action to protect their claims. They say that by taking the various acts complained of, Pettibone is estopped from claiming that the Defendants's suits were barred for failure to be refiled before the § 108(c)(2) 30-day post-stay limitations amnesty period expired. The particular conduct raised by Defendants to support their estoppel arguments were letters they received from Pettibone's counsel, after the Court's notification of confirmation of the plan, requesting 45 to 60 day extensions to respond to Defendants suits. In one case, a Defendant cites Pettibone's removal of the case to U.S. District Court from the state court in which it was pending. Defendants *852 assert that Pettibone's requests, coupled with its reorganization plan documents and this Court's confirmation order, could only have lead Defendants to believe their previously filed actions would be resumed from the point at which they had been stayed.
SUMMARY JUDGMENT STANDARDS
Under Rule 56(c) F.R.Civ.P., summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).
The standard for granting summary judgment mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on evidence that has been admitted. Anderson, 477 U.S. at 251, 106 S.Ct. at 2511-12. In essence, however, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require trial or whether one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.
In these proceedings there is no dispute of material fact between the parties. Those undisputed facts are set forth in the discussion that follows. However, it is not appropriate as a matter of law for summary judgment to be entered for plaintiff or any of the moving Defendants based upon application of law to the facts as they are found in the materials presented in support and opposition to the summary judgment motions, and in the record of proceedings of the related bankruptcy cases.
DISCUSSION
One of the basic privileges afforded a Debtor who has filed a petition in bankruptcy is the protection of the automatic stay provision of 11 U.S.C. § 362. Midatlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 503, 106 S.Ct. 755, 760, 88 L.Ed.2d 859 (1986). Section 362 provides that no actions may be continued or commenced against the Debtor unless the creditor attempting to bring or continue the action first obtains permission from the bankruptcy court. Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446 (3rd Cir.1982). Merely because a Plaintiff has obtained proper service and process does not settle the question as to whether the suit filed during the stay period is valid. While courts agree that actions already pending at the time the bankruptcy petition is filed are placed in suspension upon imposition of the stay, they are divided as to whether suits filed while a stay is in effect are void ab initio as in Richard v. City of Chicago, 80 B.R. 451, 453 (N.D.Ill.1987), and In re Shamblin, 878 F.2d 324 (9th Cir.1989); or merely voidable upon request of the debtor, In re Oliver, 38 B.R. 245, 248 (Bkrtcy.D. Minn.1984); Sikes v. Global Marine, Inc., 881 F.2d 176 (5th Cir.1989). The Seventh Circuit has held such filing to be void in a case involving the statutory precursor to 11 U.S.C. § 362. Matthews v. Rosene, 739 F.2d 249, 251 (7th Cir.1984).
Given the divergence of opinion between the courts, it is not surprising that attorneys who practice in areas of law other than bankruptcy experience confusion as to what measures are required to maintain their client's interest in a debtor's estate. However, bankruptcy law, and particularly the § 362 stay, is not designed to protect the practitioner. It is rather to protect the debtor while it gets its financial affairs in order. Matter of Baldwin-United Corp., 48 B.R. 901, 902 (Bkrtcy.S.D.Ohio 1985). *853 Therefore, it is most logical to find that the automatic stay protects the debtor absolutely, so that actions filed while it is in place are void and without legal effect. This position has been adopted by a majority of the courts and has survived the transition from cases decided under the old Bankruptcy Act to those decided under the new Code. See, Kalb v. Feuerstein, 308 U.S. 433, 438, 60 S.Ct. 343, 345-46, 84 L.Ed. 370 (1940); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); In re Advent Corp., 24 B.R. 612, 614 (1st Cir. BAP 1982); In re Shamblin, 878 F.2d 324 (9th Cir.1989); and In re Hormovitis, 57 B.R. 471, 475 (Bkrtcy.N.D. Ill.1985). This Court holds to that view.
Defendants' argument (that actions filed against a debtor while the stay is in effect are merely voidable and become void only upon debtor's request) is contrary to intent of the bankruptcy laws to relieve debtor from defending against such actions and thereby allow all energy and resources to be devoted to reorganization. The purpose of the stay, to maintain the status quo with respect to debtor's property, would be negated if a debtor was required to take action to effectuate a result already guaranteed to it by § 362.
Once the stay is modified, terminates or expires pursuant to any section of the Bankruptcy Code, the state law statutes of limitations relating to actions against the debtor once again become meaningful. Whether or not limitations periods include the time the stay was in effect is dependent on the existence of specialized suspension statutes found in applicable federal or state laws. In re Baird, 63 B.R. 60, 63 (Bkrtcy.W.D.Ky.1986). If no specialized suspension statute exists which tolls limitations during pendency of the automatic stay and an action would otherwise be barred by limitations, then bankruptcy law supplies a short filing period under § 108(c)(2). Under that provision, 30 days is established as the period of time during which suits which could not be filed while the stay was in effect may be filed without being barred by expiration of a state law limitations period that expired while the stay was in effect. The subparts of § 362 make clear that if a limitations period has not expired during the stay of actions, upon lifting of the stay the remainder of that state limitations period applies. However even if state limitations has run, the period for commencing such actions cannot expire less than 30 days from notice that the stay is lifted.
Once the extended period for filing stay-barred actions has expired, under either state law or the § 108(c)(2) 30-day provision, even a party with a timely filed claim in bankruptcy cannot initiate a suit against the debtor. Merely filing a claim in the bankruptcy does not toll the state law limitations period. Moreover, any suit initiated during the pendency of the stay without court authorization will not effectively toll the running of the limitations period, because such acts are nullities under bankruptcy law, and thus can have no legal effect under state law.
The only exception to this result may occur when a court exercises its powers under 11 U.S.C. § 105 and 362(d). Based upon special circumstances of a particular case, under 11 U.S.C. § 105, a court has authority to issue an order necessary to carry out the provisions of the Bankruptcy Code or to enforce or implement its prior orders. Coupled with 11 U.S.C. § 362(d), which allows retroactive relief from a stay by an order annulling the stay for cause, In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir.1984), an order may be entered to breathe life into a void action commenced during the pendency of a reorganization by annulling the stay with respect to particular claimants who unknowingly violated the stay by filing suit against a debtor.
The effect of annulment under § 362(d) is to render the stay itself a nullity, as if it had never existed with respect to designated parties and their actions, so that suits filed against the debtor are deemed not to have violated the stay and are effective as of the date they were initially filed. In re Chirillo, 84 B.R. 120, 123 (Bkrtcy.N. D.Ill.1988) and Raikes v. Langford, 701 S.W.2d 142, 145 (Ky.App.1986).
*854 Of course, this action should only be taken in exceptional cases upon careful consideration of the facts and actions taken by the parties. This consideration must necessarily include the acts of the bankruptcy court in connection with its treatment of the parties and the court's own actions and orders during the pendency of the reorganization. If annulment were to be granted routinely, the purpose of the stay to protect the debtor would be abrogated by providing creditors with incentive to continue to file suit against debtors in the hope that the court will automatically validate the action upon lifting of the stay. Albany Partners, 749 F.2d at 675. However, this Court also "has the duty to protect the integrity of its proceedings," Hormovitis, 57 B.R. at 474.
DISPOSITION OF THE BAKER CASE
The above analysis of the effect of the automatic stay on statutes of limitations will first be applied to the facts of the action against Defendants Gary Baker.
Baker's personal injury action was filed against Pettibone in an Illinois state court. Baker sustained his injury in Illinois on July 8, 1985. Accordingly, the relevant two year Illinois limitations period would have expired on July 8, 1987. When Mr. Baker was notified by this Court of the confirmation of Pettibone's reorganization plan and apprised that the stay was lifted as a term of the reorganization, he and his counsel were free to re-institute the suit against Pettibone which the automatic stay had previously barred. His injury counsel has not represented him before this Court, and Baker has not obtained other counsel to file anything opposing the Pettibone suit.
According to § 108(c)(1), the period of time following lifting of the stay during which Baker was and is allowed to bring his action is controlled by a specialized Illinois suspension statute. Ill.Rev.Stat. ch. 110 ¶ 13-216 states:
When the commencement of an action is stayed by injunction, order of a court, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.
By operation of this statute, running of the two-year period of time from date of Baker's injury was suspended during the pendency of Pettibone's reorganization stay. The Illinois Supreme Court has ruled that such is the effect on the Illinois statute of limitations. Garbe Iron Works, Inc. v. Priester, 99 Ill.2d 84, 75 Ill.Dec. 428, 457 N.E.2d 422 (1983).[3] Accordingly, the limitations period ran from the date of Baker's injury, July 8, 1985, until the date Pettibone filed its Chapter 11 petition, January 31, 1986. Approximately six and a half months accrued against the limitations period before the filing of the Pettibone petition. Therefore, approximately one year and five and a half months remained on the limitations period when Baker received notification of when the stay would be lifted.
As a properly filed claimant in Pettibone's reorganization, Baker therefore remains capable under Illinois law of re-initiating his suit against Pettibone until June, 1990. In the interest of justice and judicial economy, this Court will exercise its powers sue sponte under 11 U.S.C. § 105 and § 362(d) to annul the stay with respect to Baker. This action is taken to prevent an abuse of process and to allow an expedient resolution of the state court liability suit, and in consideration of the need for conserving the resources of the judicial system. This action will avoid any necessity that the action filed by Baker in 1986 be dismissed and another action be filed in its stead, an action that would merely create new expense for the litigators and administrative burdens for the state court without any just purpose being served.
DISPOSITION OF THE EASLEY, HARRIS AND WHITE CASES
The analysis set forth above regarding the effect of the automatic stay on statutes *855 of limitations is again applied to determine the disposition of Pettibone's adversary actions against the Easley, Harris and White Defendants.
Unlike the Baker case, the states in which these three other suits were filed and where the causes of action arose are Louisiana and Michigan. Those states have no specialized suspension statutes similar to that of Illinois. Therefore, the 30-day period under § 108(c)(2) would normally apply to the recommencement of actions by these Defendants against Pettibone from the date of notification of lifting of the stay. Because these Defendants did not refile during that 30-day grace period, and the suits they attempted to file against Pettibone during the pendency of its reorganization were a nullity, all actions which would allow them to liquidate their claims by taking them to judgment would normally be barred. This would be a harsh result but one mandated by the interface of bankruptcy laws and state law previously discussed.
In this case, the due process requirements of notice to creditors regarding protection of their property interests in the Debtor's estate were met by notices to claimants regarding the existence of the automatic stay, the proposed plans of reorganization, and the notice of confirmation of the plan. No further instruction to creditors on protection of their claims is required by the Bankruptcy Code or the U.S. Constitution.
It is the responsibility of a creditor to secure counsel to protect its claim once having notice that a reorganization or bankruptcy has impact upon a pending state court suit. Counsel, for their part, must be candid with their clients and with themselves about their ability to "lawyer" a case related to a defendant in a bankruptcy.
Defendants argue that it would be inequitable for a debtor to use the bankruptcy law's stay offensively to deprive otherwise legitimate creditors of their rights. That is precisely what the law allows a debtor to do. In the Bankruptcy Code the Congress has determined the balance of fairness between creditor and debtor rights, and it is not for this Court to revise the Code. Indeed, under the Code it would be inequitable to require debtor to be responsible for tutoring counsel for claimants as to how their rights are to be protected or to require debtor to give such counsel step-by-step instructions on how claims or suits are to be maintained. If it may be said that bankruptcy is a trap for the unwary, that is no different than recognizing that careful and knowledgeable lawyering is required in most fields of law, and that law often holds traps for the unwary.
Debtors may certainly be estopped by certain types of conduct from asserting state court limitations defenses in suits filed by creditors. See e.g. Annotation "Estoppel to rely on statute of limitations," 24 ALR 2d 1413 et. seq. However, the Defendants here have not shown more than an exercise by Debtors of their rights, not any acts promising settlement or other acts to induce Defendants to forgo timely litigation. The Defendants who moved for summary judgment on their estoppel theory have fallen far short of demonstrating such estoppel.
To avoid the limitations bar of their actions, Defendants in these three cases have also requested this Court to exercise its authority under § 362(d) to annul the automatic stay imposed during pendency of the Pettibone reorganization. If the Court grants the requested annulments, Defendants can pursue their actions previously filed in violation of the stay as if the stay had never existed. In response to Defendants' requests for this extraordinary relief, the Court has undertaken careful review of its prior orders and understanding with respect to this particular reorganization. In re Opelika Manufacturing Corp., 66 B.R. 444, 449 (Bkrtcy.N.D.Ill. 1986) (totality of circumstances must be considered when making decision under 11 U.S.C. § 362(d).) The Court's authority under § 362(d) should be employed only narrowly and in compelling circumstances. Bad faith (and certainly intentional violation of the stay) would alone be grounds to deny relief under that provision. In re *856 Shamblin, 878 F.2d 324, 327 (1989), citing Matthews v. Rosene, supra.
Pettibone argues that these Defendants who did not timely move for relief from the automatic stay so they could prosecute their actions should now be barred from refreshing those suits through an annulment order. That argument is not persuasive when the situation specific to this Debtor is considered. This Court routinely denied requests by "PL Claimants" to lift the stay protecting Pettibone while the Debtor companies were in reorganization. The Debtors' reorganization, because of coverage disputes among various insurance carriers, was particularly vulnerable to the many pending and threatened personal injury cases. Accordingly, almost all requests to lift stay to permit injury suits were denied[4] so that Pettibone and its carriers could be given an opportunity to develop a plan for dealing with the liability on such claims, while freed from the burdens of actively defending the actions.
In retrospect, this procedure was quite effective. It allowed Pettibone and its insurers to negotiate step-down agreements which will afford all claimants who prove their cases against the Debtor the greatest possible measure of recovery, considering the Debtor's limited financial resources and insurance coverage. If the Court had not turned away claimants requesting relief from the stay, it is likely only the first few to procure judgments would have found sufficient assets to satisfy them and it is most unlikely that Debtor would have been able to reorganize effectively. Pettibone's argument that those claimants who did not move to modify the stay should now be barred for lack of diligence is inappropriate, since Pettibone consistently defended and benefited from the stay. Moreover, the Easley Defendants did in fact move for modification of the stay, but were denied such relief in keeping with the practice of this Court to protect the fragile reorganization process.
With this background, the Court next examines the language of its order notifying the Defendants that Pettibone's reorganization plan had been confirmed.
It is firmly established that the court has broad discretion in fashioning orders to enable equitable reorganization of a debtor. Richard v. City of Chicago, 80 B.R. 451 at 454 (N.D.Ill.1987). In approving the confirmed Plan for Pettibone's reorganization, this Court clearly understood and intended that all claimants listed in Pettibone's schedules or later approved as "PL Claimants" would be free to proceed with their actions without "stay violation" objections from Pettibone or its insurers. It was the understanding and intent of this Court upon approving confirmation that all suits previously filed were to continue upon lifting of the stay, and the confirmation order is still read to have that effect and intent.
Accordingly, in the interest of preserving the intent and effect of this Court's confirmation order, the stay will be annulled with respect to all Defendants in the Easley, Harris and White cases. By so doing, this Court achieves the same result approved of by the Fifth Circuit in Sikes v. Global Marine Inc., 881 F.2d 176 (5th Cir.1989), reh. denied 888 F.2d 1388 (5th Cir.1989). That case affirmed a bankruptcy court that had allowed a personal injury suit filed in violation of a stay to be reinstated by annulment of the stay, rather than requiring the plaintiff to file "more papers with an already burdened court" or have the plaintiff punished by "adverse effects flowing from any imprecision in the language of the order." 881 F.2d at 180.[5]
*857 The result reached herein does not imply that this Court has accepted Defendants' assertion that a debtor cannot challenge a claim once it has solicited and received a vote from the claim holder for the debtor's proposed reorganization plan. To the contrary, a debtor remains free to challenge such claims, as only properly proven claims should be allowed to share in the scarce resources of the debtor's estate.
Further, the Court's decision should not be interpreted to allow claimants to escape the technical requirements essential to the continued effectiveness of the bankruptcy system, nor to require debtors to provide their creditors with instructions on how to maintain their claims. The level of expertise of the creditor's attorneys in dealing with the specialized area of bankruptcy law has not been factored into this Court's analysis. Attorneys are cautioned not to believe this would likely be a consideration of this or other courts faced with review of other cases or other facts.
CONCLUSION
In summary, the Court holds that all injury suits by Defendants to the instant Adversary cases were nullities when filed without bankruptcy court authority while the automatic stay imposed by 11 U.S.C. § 362 was in effect. Creditors notified of the pending bankruptcy reorganization of a party in response to their suits and who wish to toll limitations must move the bankruptcy court for relief from the stay. If such relief is denied or not sought, the creditor has the burden to become and remain informed as to what further action is required, and as to how the relevant limitations period is impacted by events occurring during the course of the Debtor's reorganization.
At minimum, the creditor is charged with knowledge of the fact that unless a specialized state statute operates under 11 U.S.C. § 108(c)(1) to suspend limitations while the automatic stay is in effect, the only period guaranteed to the creditor for initiating suits barred by the stay and for which the limitations period has run is the 30-day minimum allowed under 11 U.S.C. § 108(c)(2).
After the 30-day period has run, only at the discretion of the court which controlled the stay, in exceptional cases and for cause shown, may special relief be granted by cautious application of § 362(d) to annul the stay thereby allowing resurrection of any suit filed while the stay was in effect.
By separate orders, the relief sought by Pettibone in its motions against the Baker, Easley, Harris and White Defendants is denied. Summary judgment sought by the Easley and Harris Defendants is also denied because they are not entitled thereto as a matter of law.
However, the automatic stay imposed upon the filing of Pettibone's Chapter 11 petitions will be annulled with respect to all Defendants. Accordingly, the actions previously filed by Baker, Easley, Harris and White against Pettibone are valid and shall proceed in the courts in which they are now effectively pending.
That being the case, by additional separate orders, all cases will be dismissed as they no longer state grounds for relief.
NOTES
[1] Baker was injured July 8, 1985 and filed suit September 12, 1986, within the two-year period of limitations under Ill.Rev.Stat. ch. 110 ¶ 13-202. Easley was injured July 25, 1985 and filed suit July 22, 1988, within the three-year period of limitations under Mich.Comp.Laws Ann. § 600.5805. Harris was injured August 7, 1985 and filed suit June 11, 1986, within the one-year period of limitations under La.Civ. Code Ann. Art. 3492. White was injured November 19, 1984 and filed suit June 4, 1986, within the three-year period of limitations under Mich.Comp.Laws Ann. § 600.5805.
[2] Defendant Easley is not named in the schedules annexed to the reorganization plan, as his claim was filed after the schedules were prepared. However, this court allowed his late filed claim and, thereby, by order dated November 25, 1988, included him in the "PL Claimants" class.
[3] It must be observed that the Illinois Supreme Court did not cite or discuss § 13-216. The opinion could be read to be a construction of 11 U.S.C. § 108(c) as tolling the Illinois statute of limitations, an interpretation at variance with federal court authority. However, § 13-216 by its terms has the very effect that the Supreme Court found by other reasoning.
[4] The court notes one exception was made which allowed a suit to proceed once Pettibone had determined that insurance coverage was clearly existent and sufficient to cover the liability and defense without impairing the remainder of its estate.
[5] Reasoning in Sikes is difficult to understand. Immediately after stating that complaints filed against a debtor post-petition are voidable, the Fifth Circuit discusses the fact that § 362(d) authorizes a bankruptcy court to grant relief from the automatic stay retroactively, and then also concludes that in the facts of the case before it, the bankruptcy court had "validated" the filing of the original complaint. The latter propositions were unnecessary if "voidable" is given its common meaning. If plaintiff's complaint against debtor was voidable, not void, it should have been valid until the debtor took affirmative steps to have it stricken. Since no such steps were apparently taken by the debtor in Sikes, the original complaint should have been valid when the stay was lifted. Nullification under § 362(d) is a remedy to address the situation where the original complaint was void. It should have therefore been unnecessary to reach or discuss § 362(d) or for the bankruptcy court to have "validated" the complaint. In short, although Sikes says the complaint in issue was voidable, it doesn't follow through with the logical implications of its holding, and in fact, refers to other theories that would be unnecessary if in fact it truly treated the complaint in issue as "voidable".
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718 P.2d 405 (1986)
SOUTH SALT LAKE, Plaintiff and Respondent,
v.
Kitty K. BURTON, Defendant and Appellant.
No. 20879.
Supreme Court of Utah.
May 8, 1986.
*406 Kitty K. Burton, pro-se.
David L. Wilkinson, Atty. Gen., Clint Balmforth, Salt Lake City, for plaintiff and respondent.
PER CURIAM:
Defendant was convicted of driving a motor vehicle without a valid driver's license, by a jury sitting in the Justice of the Peace Court of South Salt Lake. She was sentenced to serve 90 days in the Salt Lake County jail and to pay a fine of $299, the jail sentence to be suspended upon payment of the fine. Defendant appealed to the district court and was provided a trial de novo.[1] After this trial, the court clerk recorded in a minute entry: "The court thereupon finds in favor of the plaintiff and against the defendant and orders the previously imposed sentence reinstated."
The record does not show that defendant was resentenced following the trial de novo, and the minute entry was not signed by the judge. An unsigned minute entry is not susceptible of enforcement and does not constitute a final judgment for purposes of appeal to this Court. See Wisden v. City of Salina, Utah, 696 P.2d 1205 (1985); Wilson v. Manning, Utah, 645 P.2d 655 (1982); State Tax Commission v. Erekson, Utah, 714 P.2d 1151 (1986). This appeal is therefore dismissed as it is not properly before this Court.
Dismissed.
NOTES
[1] The justice of the peace court is not a court of record in this state. Appeals to the district court are on questions of fact as well as law under U.C.A., 1953, § 78-3-5 and are therefore heard anew. See State v. Johnson, Utah, 700 P.2d 1125 (1985).
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424 F.3d 38
UNITED STATES of America, Appellee,v.Ramon LAUREANO-VELEZ, Defendant, Appellant.
No. 04-1411.
United States Court of Appeals, First Circuit.
Submitted March 25, 2005.
Decided September 15, 2005.
Lorenzo J. Palomares, on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, H.S. Garcia, United States Attorney, Nelson Perez-Sosa, Assistant United States Attorney, and German A. Rieckehoff, Assistant United States Attorney, on brief, for appellee.
Before BOUDIN, Chief Judge, SELYA and HOWARD, Circuit Judges.
PER CURIAM.
1
After drugs and guns were seized from defendant's house pursuant to his arrest for a local probation violation, he was indicted on one count of possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of possessing a firearm, including a "Ruger Mini 14 semiautomatic assault rifle with a black pistol grip and a stainless steel folding stock," in furtherance of the marijuana offense, in violation of 18 U.S.C. § 924(c)(1).1 Defendant pled guilty to those two counts. In this appeal from his sentence, defendant challenges (1) the imposition of a 10-year mandatory minimum sentence on the assault-weapon charge and (2) the alleged delegation to the probation department of the determination of the number of drug tests he must take while on supervised release. Finding no merit to these challenges, we affirm.
2
Defendant's first argument concerning his sentence on the assault-weapon count is that he was entitled to have a jury determine, beyond a reasonable doubt, whether he possessed an "assault weapon" within the meaning of the applicable statute. In support of that argument in the district court, he relied on Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), which held, as a matter of statutory construction, that the references to firearm types in 18 U.S.C. § 924(c)(1) define a separate crime (rather than a sentencing factor) that must be proven to a jury beyond a reasonable doubt. 530 U.S. at 131, 120 S.Ct. 2090. On appeal, he also relies on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), for the proposition that a jury determination on that issue was constitutionally required.2
3
The short answer to defendant's claim that he was entitled to a jury determination on the assault—weapon issue— either on statutory or on constitutional grounds—is that he waived his right to jury consideration of that issue by pleading guilty. United States v. Serrano-Beauvaix, 400 F.3d 50, 56 (1st Cir.2005).
4
Although his counsel reserved the right to argue at sentencing that the Ruger rifle is not an "assault rifle" and is exempt from the applicable statute, that reservation, taken in context, at most reserved those issues to be decided by a judge at sentencing, not by a jury. As the Supreme Court recognized in Blakely itself: "When a defendant pleads guilty, the [government] is free to seek judicial sentence enhancements so long as the defendant . . . consents to judicial factfinding," Blakely, 124 S.Ct. at 2541, which is what occurred here.
5
Defendant's next assault-weapon challenge is that the judge made no finding that the Ruger 14 was an "assault weapon."3 That contention is defeated by the record. After listening to defendant's objections to the finding, contained in the presentence investigation report, that the Ruger 14 had the characteristics of a semiautomatic assault weapon set forth in the statutory definition, the court expressly found "that at [the] time of the arrest the defendant possessed a Ruger mini 14 semiautomatic assault weapon [and that] . . . this particular weapon did have the characteristics of an assault weapon for purposes of the statute." Contrary to defendant's next contention, that finding was amply supported by the evidence in the record, including a report of the Firearms Technology Branch of the United States Bureau of Alcohol, Tobacco and Firearms that the Ruger Mini 14 "accepts a detachable magazine and has a folding stock and a pistol grip that protrudes conspicuously beneath the action of the weapon." After conducting her own investigation, the probation officer reached the same conclusions.
6
The only evidence purportedly to the contrary is a conclusory statement by defendant's expert that the "conventional design[] of the mini 14 Sturm Ruger does not represent an assault weapon." However, even if true, that statement is rendered irrelevant by the probation officer's uncontested finding that the weapon had been altered from its original design to include the requisite characteristics.
7
Finally, defendant challenges the district court's rejection of his argument that his possession of the weapon was exempt from liability under section 924(c)(1) because the weapon was manufactured before the enactment of the assault weapon ban in 1994. In support of that argument, defendant relies on 18 U.S.C. § 922(v)(2), which exempts from the ban on simple possession of a semiautomatic assault weapon, 18 U.S.C. § 922(v)(1), weapons that were lawfully possessed before enactment of the ban. Defendant argues that section 922(v)(2), the so-called "grandfather" clause, exempts him from prosecution for possessing a pre-ban assault weapon in furtherance of a drug offense under section 924(c)(1). However, as other courts have recognized, the most sensible reading of the grandfather clause, consistent with its language and purpose, is to create an exception for pre-ban weapons only with respect to the separate crime of simple possession of such weapons under § 922(v)(2). United States v. Ray, 411 F.3d 900, 905-06 (8th Cir.2005); United States v. Vega, 392 F.3d 1281, 1282-83 (11th Cir.2004) (per curiam).
8
The only remaining claim raised by defendant on appeal is that the district court impermissibly delegated to the probation department the determination of the maximum number of drug tests the defendant would have to take while on supervised release. The short answer to that contention is that no such delegation occurred.4 Rather, the district court itself required that defendant submit to random drug testing "not to exceed 104 samples per year." Although the written judgment—stating that defendant must submit to "at least two" drug tests after his initial one— differs from that oral pronouncement, the oral version controls. United States v. Flemmi, 402 F.3d 79, 96 n. 26 (1st Cir.2005).
9
Accordingly, the case is remanded to the district court for the sole purpose of modifying the drug-testing condition set forth in the written judgment to conform to the condition stated orally at sentencing. In all other respects, the district court's judgment is affirmed.
Notes:
1
At all times pertinent here, 18 U.S.C. § 924(c)(1)(B)(i) provided a 10-year mandatory minimum sentence for possessing a "semiautomatic assault weapon" in furtherance of a drug trafficking crime, Pub.L. No. 103-322, 108 Stat. 1796, § 110102(c) (1994). That and the other statutory references to "semiautomatic assault weapons" cited below were repealed effective September 13, 2004Id. § 110105(2).
2
In a post-briefing motion to remand, defendant argued thatUnited States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), also requires that the firearm type be proved to a jury beyond a reasonable doubt, but he declined this court's invitation to submit a supplemental brief on that issue. His Booker claim is therefore waived. See United States v. Vega Molina, 407 F.3d 511, 534 n. 7 (1st Cir.2005).
3
"Semiautomatic assault weapon" is defined to include "a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of-(i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;" and three other characteristics not relevant here. 18 U.S.C. § 921(a)(30) (1994)
4
Because there was no delegation error here, we need not determine whether this unpreserved claim satisfies the plain error standard articulated inUnited States v. Padilla, 415 F.3d 211 (1st Cir.2005)(en banc).
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201 F.Supp.2d 145 (2002)
Elouise Pepion COBELL, et al., Plaintiffs,
v.
Gale NORTON, Secretary of the Interior, et al., Defendants.
No. CIV.A. 96-1285(RCL).
United States District Court, District of Columbia.
May 17, 2002.
*146 Keith M. Harper, Lorna K. Babby, Dennis Marc Gingold, Washington, DC, Elliot H. Levitas, Kilpatrick Stockton, LLP, Washington, DC, for Plaintiffs.
Robert D. Luskin, Patton Boggs, L.L.P., Tom C. Clark, U.S. Department of Justice, Land & Natural Resources Division, Brian L. Ferrell, Andrew M. Eschen, U.S. Department of Justice, Charles Walter Findlay, III, Sarah D. Himmelhoch, Sandra Marguerite Schraibman, U.S. Department of Justice, Federal Programs Branch, Edith R. Blackwell, Washington, DC, John Charles Cruden, U.S. Department of Justice, Environment & Natural Resources Division, Annandale, VA, Lewis Steven Wiener, Sutherland, Asbill & Brennan, L.L.P., Mark E. Nagle, Robert Craig Lawrence, Scott Sutherland Harris, U.S. Attorney's Office, J. Christopher Kohn, U.S. Department of Justicee Commercial Litigation Branch, John Most, U.S. Department of Justice, Environment & Natural Resources Division, Jo-Ann Shyloski, Barry Weiner, Washington, DC, Terry M. Petrie, U.S. Department of Justice ENRD, General Litigation, Denver, CO, Seth Brandon Shapiro, U.S. Department of Justice Civil Division, Sandra Peavler Spooner, Peter Blaze Miller, Cynthia L. Alexander, Mathew J. Fader, U.S. Department of Justice, Commercial Litigation Branch, John Stemplewicz, U.S. Department of Justice, Amalia D. Kessler, U.S. Department of Justice, Commercial Litigation Branch, Dodge Wells, Department of Justice, Commercial Litigation Branch, Tracy Lyle Hilmer, U.S. Department of Justice Civil Division, Herbert Lawrence Fenster, McKenna & Cuneo, LLP, Elizabeth Wallace Fleming, Preston, Gates, Ellis & Rouvelas Meeds, B. Michael Rauh, Manatt, Phelps & Phillips, L.L.P., Washington, DC, for Defendants.
Lawrence H. Wechsler, Janis, Schuelke & Wechsler, Washington, DC, Donald Michael Barnes, Seyfarth Shaw, Washington, DC, David Booth Beers, Shea & Gardner, Washington, DC, William Aaron Dobrovir, Warrenton, VA, Pamela J. Marple, Manatt, Phelps & Phillips, L.L.P., Timothy Patrick Garren, U.S. Department of Justice Civil Rights Division, Erik Lloyd Kitchen, Steptoe & Johnson, L.L.P., Martha Purcell Rogers, Ober, Kaler, Grimes & Shriver, Michael R. Bromwich, Fried, Frank, Harris, Shriver & Jacobson, Amy Berman Jackson, Trout & Richards, P.L.L.C., Roger Eric Zuckerman, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, L.L.P., Kathleen Elizabeth Voelker, Stephen M. Byers, Crowell & Moring, L.L.P., Leslie B. Kiernan, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, L.L.P., L. Barrett Boss, Asbill, Junkin, Moffitt & Boss, Chartered, Plato Cacheris, Sydney Jean Hoffmann, John Francis Hundley, The Law Offices of Plato Cacheris, Barbara Ann Van Gelder, Wiley, Rein & Fielding, William Holt Briggs, Jr., Laura C. Zimmitti, Ross, Dixon & Bell, LLP, Thomas Edward Wilson, Berliner, Corcoran *147 & Rowe, L.L.P., Mary Lou Soller, Miller & Chevalier, Chartered, Jeffrey David Robinson, Melissa Heitmann McNiven, Baach, Robinson & Lewis, Dwight Phillip Bostwick, Washington, DC, Larry Allen Nathans, Bennett & Nathans, L.L.P., Baltimore, MD, John Kenneth Zwerling, Zwerling & Kemler, P.C., Lisa Bondareff Kemler, Werling & Kemler, P.C., Alexandria, VA, Russell David Duncan, Lisa Ann Freiman Fishberg, Coburn & Schertler, Washington, DC, E. Lawrence Barcella, Jr., Paul, Hastings, Janofsky & Walker, L.L.P., David Sidney Krakoff, Alessio D. Evangelista, Beveridge & Diamond, P.C., Michael D. Goodstein, Resolution Law Group, PC, Washington, DC, Bradley Stuart Lui, Morrison & Foerster, LLP, McLean, VA, Stanley M. Brand, Andrew Dewald Herman, Brand & Frulla, P.C., Marshall L. Matz, Olsson, Frank & Weeda, P.C., Jefferson McClure Gray, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, Emily M. Yinger, Hogan & Hartson, McLean, VA, William Leonard Gardner, Brian Michael Privor, Morgan, Lewis & Bockius, L.L.P., Washington, DC, for Non Parties.
Alan Lee Balaran, Washington, DC, for Special Master.
Jonathan K. Tycko, Gibson, Dunn & Crutcher, L.L.P., Richard lee Cys, Davis Wright Tremaine, Christopher B. Mead, London & Mead, Washington, DC, Nathaniel Davis Owens, Sr., Anniston, AL, Jill Elise Grant, Washington, DC, for Movants.
Albert Lee Bynum, Gadsden, AL, Pro se.
Albert Lee Bynum, Gadsden, AL, Pro se.
ORDER
LAMBERTH, District Judge.
Upon consideration of the plaintiffs' motion for a preliminary injunction to protect any individual Indian trust data, the opposition thereto, the reply, and the record herein, the plaintiffs' motion will be DENIED.
The Special Master's Emergency Report Regarding Proposed Relocation of Records to the Lee's Summit Federal Records Center, filed April 17, 2002, documents the slipshod and haphazard way in which the Interior Department continues to carry out its solemn trust responsibilities to the individual Indian plaintiffs in this case. The Court entered, and extended until today, a temporary restraining order at plaintiffs' request, to ensure protection of these trust records.
The Deputy Secretary of Interior has assured the Court that he will "make sure the Special Master is properly and timely informed" about retention and preservation of trust records, and that the Special Master will have "every opportunity to resolve concerns prior to the Department taking any irreversible actions."
Subsequent to the entry of the temporary restraining order, the Court directed the Special Master to make an unannounced emergency site visit to the Lee's Summit Federal Records Center in Missouri, to ascertain whether any Indian trust records already sent there have been destroyed. The Special Master has orally reported to the Court that no such records have been destroyed there, and that the Center has a moratorium in place to prevent such destruction at this time.
The Special Master reports that Associate Deputy Secretary James Cason is working closely and cooperatively with him on all these issues, and the Court will direct the Special Master to continue to monitor closely this matter to ensure that all trust records are properly preserved and protected, as this Court ordered in 1996.
*148 The defendants' complaint that the plaintiffs' proposed preliminary injunction order is "designed to undermine the effective operations of the Interior Department" would be laughable if it were not so sad and cynical. The Court has yet to see any "effective operations of the Interior Department" regarding these individual Indian trusts. It is therefore beyond the Court's comprehension how the defendants' operations could be undermined by virtually anything the plaintiffs could suggest. The record of this case suggests that "fixing the system" has gone so far in the wrong direction that the plaintiffs are worse off today than they were six years ago, when this case was filed, or even one year ago. Nevertheless, the Court is satisfied at this time that the Special Master can closely monitor the defendants' activities and seek further action by the Court if it is needed on an interim basis, until resolution of the pending contempt and receivership issues.
Accordingly, the plaintiffs' motion for preliminary injunction is DENIED.
SO ORDERED.
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112 Ariz. 170 (1975)
540 P.2d 642
In the Matter of APPEAL IN PIMA COUNTY, JUVENILE ACTION NO. J-46735, Petitioner,
v.
The Honorable Lawrence HOWARD, Chief Judge, Division Two, of the Court of Appeals, and Elizabeth Urwin Fritz, Clerk of the Court of Appeals, Division Two, Respondents.
No. 12136.
Supreme Court of Arizona, En Banc.
September 23, 1975.
Louis L. Deckter, Tucson, for petitioner.
Bruce E. Babbitt, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for respondents.
HAYS, Justice:
We accepted jurisdiction of this petition for special action to determine whether an order to an indigent natural parent to pay the filing fees and transcript preparation costs in her appeal from a juvenile court ruling that her children were dependent, violates her constitutional rights.
After a hearing, the juvenile court declared the petitioner's children dependent and transferred legal custody to the Department of Economic Security. A motion for leave to proceed on appeal in forma pauperis was granted. Notice of appeal was filed.
The Clerk of the Court of Appeals then ordered the petitioner to pay the filing fees. The Court of Appeals ordered that the transcripts of the dependency hearings be prepared and forwarded, and further ordered that the cost of this preparation be paid by the petitioner. She filed a petition for special action with this court.
Insofar as a jurisdiction provides appellate review of criminal cases, that review must not be denied to some on account of their poverty. Griffin v. Illinois, 351 U.S. *171 12, 76 S.Ct. 585, 100 L.Ed. 891 reh. denied, 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480 (1956). Arizona has provided an appellate procedure in juvenile court cases. Rule 24, Rules of Procedure for the Juvenile Court.
This court has held that the Court of Appeals effectively denied a juvenile his right to appeal by denying him the right to proceed as an indigent. Maricopa County Juvenile No. 71257 v. Cook, 109 Ariz. 139, 506 P.2d 1033 (1973). In that case, we predicted future juvenile appeals in which the distinction between essentially criminal and essentially civil cases could not be clearly drawn. This is such a case.
The right to custody and control of one's children has long been recognized as a fundamental one. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). The individual's right not to be deprived of a fundamental constitutional grant without due process of law extends to temporary deprivations as well as to those which are permanent. Therefore, we reject the State's contention that this intrusion on a constitutionally protected right is permissible because it is only temporary.
Because the right to raise one's children is fundamental, any proceeding by the State to deprive a person of that right must take place under the aegis of the equal protection and due process clauses of the Fourteenth Amendment. Therefore, the Court of Appeals cannot deny the petitioner her statutory right of appeal solely because of her indigency.
Relief granted. The Court of Appeals is ordered to proceed with the appeal in a manner consistent with this opinion.
CAMERON, C.J., STRUCKMEYER, V.C.J., and LOCKWOOD and HOLOHAN, JJ., concur.
GORDON, J., did not participate in the determination of this matter and retired LOCKWOOD, J., sat in his stead.
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962 F.2d 16
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.Louis P. WEIL; Beatrice Weil, Petitioners-Appellants,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee.
No. 91-70022.
United States Court of Appeals, Ninth Circuit.
Submitted May 5, 1992.*Decided May 11, 1992.
1
Before JAMES R. BROWNING and FARRIS, Circuit Judges, CAULFIELD,** District Judge.
2
MEMORANDUM***
3
Louis Weil claims the Tax Court erred in determining that Weil's tax underpayments for the tax years 1971, 1972 and 1973 were due to fraud and adding fifty percent of the underpayments to the amount owed as a penalty, pursuant to the applicable version of 26 U.S.C. § 6653(b).
4
We review the Tax Court's finding of fraud for clear error, reversing only if we are left with the definite and firm conviction there is no clear and convincing evidence of fraud. Bradford v. CIR, 796 F.2d 303, 307 (9th Cir.1986). For the purposes of section 6653's fifty percent penalty, "fraud is intentional wrongdoing on the part of the taxpayer with the specific intent to avoid a tax known to be owing. The Commissioner must prove fraud by clear and convincing evidence, but intent can be inferred from strong circumstantial evidence." Id. (internal citations and quotation marks omitted).
5
"Badges of fraud"--circumstantial evidence that can be used to prove fraud--include: "1) understatement of income; 2) inadequate records; 3) failure to file tax returns; 4) implausible or inconsistent explanations of behavior; 5) concealment of assets; 6) failure to cooperate with tax authorities; and 7) lack of credibility of the taxpayer's testimony." Laurins v. CIR, 889 F.2d 910, 913 (9th Cir.1989). Sophistication in business and tax matters may also lend support to an inference of intent to defraud. See id.; Edelson v. CIR, 829 F.2d 828, 832 (9th Cir.1987).
6
While Weil claims that "in the majority of instances" the income he earned was reported on the tax returns of business entities he owned, Blue Brief at 28, he concedes, as he must, that his income was underreported. Consistent and substantial understatement of income is in and of itself evidence of fraud. Laurins, 889 F.2d at 913.
7
The fact that much of Weil's income came from illegal activities also supports a finding of fraud. Bradford, 796 F.2d at 308. Despite Weil's claims to the contrary, there is clear and convincing evidence to support the Tax Court's finding that he received large sums of money as illegal "kickbacks" while he instructed various employees to record the payments as money earned for legitimate services rendered. For example, Sid Hersh's testimony, admitted as Exhibit DW, was that although Western Lithograph, a company that had contracted with Weil's employer to print a coupon booklet, issued several checks in large amounts to Weil's "shell" companies for services rendered, his companies never performed those or any other services. The payments, issued on Weil's instructions, were made so that Western Lithograph could "continue the printing" of the coupon booklet. The Tax Court properly characterized the payments as illegal kickbacks, given that Hersh testified that Western Lithograph got the money by overbilling Weil's employer.
8
Weil lied about the source of this income when questioned by the postal authorities, characterizing the payments as "commissions" for bringing in new business. The evidence showed Weil knew neither he nor his shell companies had earned the money by performing legitimate services.
9
Further, Weil was a sophisticated businessman who set up several of his own corporations, including a holding company, and was president of an important subsidiary of a large, publicly held corporation. His claim that he did not "have much expertise or sophistication in financial matters," Blue Brief at 30, is disingenuous at best.
10
AFFIRMED.
*
The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)
**
Honorable Barbara A. Caulfield, United States District Judge for the Northern District of California, sitting by designation
***
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
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FILED
NOT FOR PUBLICATION JUL 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50049
Plaintiff - Appellee, D.C. No. 3:11-cr-00673-H-2
v.
MEMORANDUM*
CELESTINO MADRID,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted July 9, 2014**
Pasadena, California
Before: BERZON and CLIFTON, Circuit Judges, and ROSENTHAL, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
Celestino Madrid appeals the district court’s denial of his motion to suppress
evidence of methamphetamine found in his car following a stop by a California
Highway Patrol (“CHP”) officer. Because it was not clear error for the district
court to find probable cause for the stop, we affirm.
The district court did not err in applying the collective knowledge doctrine
to impute the DEA task force’s knowledge to the CHP officer. Madrid does not
dispute that the DEA investigators who observed him receive drugs from an
undercover informant had probable cause to arrest. What Madrid contests is
whether there was sufficient evidence of communication between the officers to
impute the DEA investigators’ knowledge of the underlying facts to the arresting
CHP officer.
While the collective knowledge doctrine assumes some “communication”
between agents occurs, this Court made clear in United States v. Ramirez, 473 F.3d
1026, 1033 (9th Cir. 2007) that the doctrine applies so long as the officer with
probable cause identifies the target and “directs or requests” another officer to
conduct a stop. Id. at 1036 (“[W]here one officer directs another to take some
action, there is necessarily a ‘communication’ between those officers, and they are
necessarily functioning as a team.”). Ramirez rejected defendants’ argument that
the “information conveyed . . . must relate in some meaningful way to suspected
criminal activity.” Id.
Madrid nonetheless argues that direct evidence about the communication
between the DEA investigators and CHP officer is necessary to establish that “the
communication had the effect of making the arresting officer part of the team.” If
the contention is that evidence of the content of the communication matters, it runs
squarely against our holding in Ramirez that the collective knowledge doctrine
“includes no requirement regarding the content of the communication that one
officer must make to another.” Id. at 1036-37; see also id. at 1032-33.
The contention fares no better if it is that the evidence of any communication
between the DEA and the CHP officer was insufficient. There was sufficient
circumstantial evidence to support the district court’s finding that some
communication between the DEA and CHP officer occurred that prompted the
CHP officer to make the stop: The DEA had plans to contact law enforcement
officers in a marked car to make the stop; Officer Pena testified that he heard a call
made over the radio for a marked unit to stop the car; a marked unit shortly
thereafter did stop the car that was described. Madrid’s reliance on United States
v. Villasenor, 608 F.3d 467 (9th Cir. 2010), is unconvincing. Villasenor did not
apply the collective knowledge doctrine because “the record [was] devoid of any
communication between [the arresting and investigating officers].” 608 F.3d at
475-76 (emphasis added).
AFFIRMED.
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T.C. Memo. 2004-197
UNITED STATES TAX COURT
LINDA OLSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8437-03. Filed August 31, 2004.
Barry K. Rothman, for petitioner.
Laura Beth Salant, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioner petitioned the Court to redetermine
respondent’s determination of a $182,636 deficiency in her 2000
Federal income tax and a $36,459 accuracy-related penalty under
section 6662(a) of the Internal Revenue Code as applicable to
2000. Following petitioner’s concessions, we are left to decide
- 2 -
whether petitioner during 2000 received a $461,709 distribution
from an individual retirement account (IRA). We hold she did.
FINDINGS OF FACT
Some facts were stipulated and are so found. The
stipulations of fact and the accompanying exhibits are
incorporated herein by this reference. Petitioner resided in
Beverly Hills, California, when her petition to this Court was
filed. She filed a 2000 Federal income tax return that did not
report any distribution received from an IRA. Prudential
Securities Inc. (Prudential) reported on a 2000 Form 1099-R,
Distributions From Pensions, Annuities, Retirement or Profit-
Sharing Plans, IRAs, Insurance Contracts, etc., that petitioner
had during 2000 received a taxable distribution of $461,709.19
from an IRA. Respondent in the notice of deficiency determined
the same (rounding the $461,709.19 to $461,709).
Petitioner’s brother, Peter D. Olson (Olson), died on
November 14, 1998. When he died, he owned an IRA held in
Prudential account number 004-R68371-N3 (Olson’s account). The
assets in the IRA at the time of his death included 115,917
shares of the stock of Klever Marketing Inc. (Klever). Olson, a
founder and director of Klever, received those shares on or
before March 4, 1998. The Klever stock certificate (certificate)
underlying those shares, number 6278, stated:
The shares represented by this certificate have not
been registered under the Securities Act of 1933. The
- 3 -
shares have been acquired for investment and may not be
offered, sold or otherwise transferred in the absence
of an effective Registration Statement for the shares
under the Securities Act of 1933 or a prior opinion of
counsel satisfactory to the issuer that registration is
not required under that Act.
Petitioner was the sole beneficiary of Olson’s account. Her
account at Prudential was numbered JQS-027297-N3 (petitioner’s
account). On February 21, 2000, petitioner signed a 2-page
Prudential form (form) entitled “Distribution Request”.
Prudential gave this form to its account holders who wanted to
request a distribution from a retirement account. The form
signed by petitioner states on page one that (1) she is the
beneficiary of Olson’s account, (2) Olson died, (3) she, on
account of Olson’s death, is requesting a distribution of all
amounts in Olson’s account in closure thereof, (4) these amounts
consist of cash and securities, (5) these amounts should be
distributed to petitioner’s account by way of a journal entry,
and (6) Prudential should not withhold any Federal or State taxes
from this distribution. Page 2 of the form bears petitioner’s
signature and handwritten date of February 21, 2000, immediately
below the following statement:
By signing here, I certify that the information
provided on this form regarding my status with respect
to the IRA, SEP-IRA, SARSEP-IRA, SIMPLE IRA, ROTH IRA
or EDUCATION IRA involved and in all other aspects is
correct. I also certify that the action directed on
this form fully complies with the terms of the
applicable Individual Retirement Agreement. I
acknowledge that the custodian is not responsible for
ascertaining the appropriateness of the distribution.
- 4 -
Also, my Federal and State Income Tax withholding
election is applicable to any subsequent distribution
until it is revoked by me under the procedure
established by the custodian. I acknowledge some
states require withholding if Federal withholding is
elected. I also acknowledge that certain fees may be
charged to the account depending on the type of
distribution I have requested. I also acknowledge that
funds must be available for the requested gross
distribution to occur. If you have any questions,
please call your Financial Advisor * * * for details.
Prudential made the requested journal entry as of March 3,
2000, and on March 3, 2000, transferred 155,917 Klever shares
from Olson’s account to petitioner’s account. Prudential valued
these shares at $456,481.14 for purposes of the transfer.
Prudential also in March 2000 transferred $5,228.04 in cash from
Olson’s account to petitioner’s account.1 From March 3 to
December 31, 2000, Prudential included the subject shares and
their value in petitioner’s account and issued to petitioner
statements for that account showing the same with an unexplained
notation “legal documents pending”. The statement for December
2000 lists the total value of the subject shares at $43,468.88 as
of December 31, 2000, and notes that petitioner had a $413,012.26
unrealized loss on those shares as of that date.
A transfer agent acts on behalf of an issuer of securities
to record the owners of those securities. The transfer agent for
Klever stock was Atlas Stock Transfer (Atlas). On October 30,
1
The amount of this cash and the value of the subject
shares total $461,709.19.
- 5 -
2001, Klever notified Atlas that petitioner had recently asked it
to lift the restrictive legend as to the shares underlying
certificate number 6278 and to transfer those shares into the
street name of Prudential. On November 28, 2001, in response to
this notification, Atlas cancelled certificate number 6278 and
issued in the street name of Prudential certificate number 6980
with no restrictive legend. Street name securities are held by a
company such as Prudential for the benefit of its clients.
Securities held in street name may be placed into an individual’s
account and beneficially owned by the individual although the
owner listed in the transfer agent’s records is a street name. A
transfer agent usually does not know the identity of the owner of
securities which are recorded in its records in street name.
OPINION
Respondent determined that petitioner received a $461,709
distribution during 2000. Respondent in support of that
determination focuses on the fact that petitioner, during 2000,
both authorized the distribution and received it in her account.
Petitioner argues that she received no distribution during 2000.
Petitioner focuses on the fact that certificate number 6278 was
not changed during 2000 to reflect any change in the name of the
underlying shares’ owner and that this certificate contained a
legend that prohibited any transfer of the underlying shares
- 6 -
unless registered or opined by counsel to be excepted from
registration.
We agree with respondent that petitioner received the
subject distribution during 2000.2 Contrary to petitioner’s
assertion, the transfer of the subject shares from Olson’s
account to petitioner’s account, to be effective, did not require
that a new certificate be issued to reflect a change of name from
that of the owner shown on certificate number 6278. As the Court
noted in Meyer v. Commissioner, 46 T.C. 65, 106 (1966), revd. on
other grounds 383 F.2d 883 (8th Cir. 1967), the act of a transfer
agent in recording an ownership change in stock is a
“ministerial, bookkeeping act”, and a change in stock ownership
may occur without any action by a transfer agent and without
regard to whether new certificates are issued to reflect the
transfer. See also Corliss v. Bowers, 281 U.S. 376, 378 (1930)
(“taxation is not so much concerned with the refinements of title
as it is with actual command over the property taxed”); Byrne v.
Commissioner, 54 T.C. 1632, 1639 (1970) (“an economic interest in
a corporation may arise although a certificate of stock
evidencing such interest has not yet been issued in the name of
the owner”), affd. 449 F.2d 759 (8th Cir. 1971). Accord
2
We decide this issue without regard to which party bears
the burden of proof. We note, however, that taxpayers generally
bear the burden of proof in this Court and that petitioner has
not asserted in her brief that respondent bears the burden of
proof in this case.
- 7 -
Helvering v. Rankin, 295 U.S. 123, 127 (1935), where the Supreme
Court described stock transfers of the taxpayer, Turner, stating:
In none of these transactions did the broker
deliver to Turner, or Turner to the broker, any stock
certificate. No specific certificate of stock was ever
bought or sold by the broker for Turner; and none was
earmarked or allocated for him in any manner. The
purchases and sales affecting his account were made
through the medium of street certificates handled by
the broker; and the transactions were evidenced solely
by debits and credits in his account on the broker’s
books * * *
Petitioner’s assertion that she acquired the subject shares
only upon Atlas’s issuance of a new certificate is further eroded
by our finding that she was the one who in fact caused Atlas to
issue a new certificate. Petitioner’s ability to cause the
cancellation of certificate number 6278 and the issuance of
certificate number 6980 is indicative of her ownership of the
subject shares before November 28, 2001, the date on which that
new certificate was issued. While petitioner points the Court to
Rev. Rul. 81-158, 1981-1 C.B. 205, in search of a contrary
holding, she construes that ruling too narrowly. Although both
situations in the ruling do conclude that the transfer of stock
occurs when the transfer agent is directed to reissue shares in
the name of the new owner, the ruling does not conclude, as
petitioner would have it be, that a transfer of stock may only
occur when a transfer agent receives such a direction.
Nor is it dispositive to our decision that certificate
number 6278 contained the referenced restrictive legend. Given
- 8 -
the record before us, the dispositive facts of this case, as we
see it, are fourfold. First, petitioner intended to effect a
distribution of the subject shares into petitioner’s account
during 2000. Second, she relayed that intent to Prudential
during 2000. Third, Prudential carried out that intent during
2000 by transferring the subject shares into petitioner’s
account. Fourth, petitioner during the last 10 months of 2000
knowingly enjoyed the benefit of the added value of those shares.
We hold for respondent.3 All arguments in this case have
been considered, and those arguments not discussed herein are
without merit or inapplicable to our decision.4
Decision will be entered
for respondent.
3
Petitioner’s request for a contrary holding is most likely
driven by the fact that our holding means that she is liable for
2000 Federal income tax on the value of the subject shares at the
time of distribution, yet her recognition of any loss realized as
to those shares is generally limited to $3,000 per year.
4
Petitioner asserts that the value of the subject shares
must be discounted because they were restricted shares which
could not be transferred publicly. Even if we were to assume
that petitioner is correct in her assertion that the subject
shares could not be transferred publicly, an assertion which may
actually be incorrect given the many exceptions set forth in rule
144 of the Securities Act of 1933, 17 C.F.R. sec. 230.144 (2004),
for public transfers, we do not find (nor has petitioner pointed
us to) any evidence in the record upon which to determine such a
discount.
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644 F.2d 886
Teasterv.Stamco, Inc.
79-1137
UNITED STATES COURT OF APPEALS Sixth Circuit
1/15/81
1
E.D.Tenn.
AFFIRMED
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426 F.2d 746
Kermit Arthur BELGARDE, Plaintiff and Appellant,v.UNITED STATES of America, Defendant and Appellee.
No. 23864.
United States Court of Appeals, Ninth Circuit.
May 26, 1970.
Harold F. Hanser (argued), Billings, Mont., for plaintiff and appellant.
Eugene A. Lalonde (argued), Asst. U.S. Atty., Otis L. Packwood, U.S. Atty., Billings, Mont., for defendant and appellee.
Before BROWNING, CARTER and WRIGHT, Circuit Judges.
PER CURIAM.
1
Petitioner, charged with first degree murder for the killing of his father and brother, pled guilty to second degree murder and was sentenced to life imprisonment. He sought relief under 28 U.S.C. 2255 and complained that the trial court did not comply with Rule 11 Fed.Rules of Crim.Procedure. He relied upon McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and Heiden v. United States (9 Cir. 1965) 353 F.2d 53. His plea of guilty had been entered on May 27, 1965. The district court held an evidentiary hearing and denied relief.
2
Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) held that McCarthy, supra, was not retroactive and applied only to pleas entered after April 2, 1969, the date of McCarthy. Castro v. United States (9 Cir. 1968) 396 F.2d 345, held that Heiden, supra, was not retroactive and did not apply to pleas entered before November 2, 1965, the date of Heiden.
3
The trial court found that there was compliance with Rule 11 as it read in 1965; that the court before accepting the plea ascertained the plea was voluntary and that the appellant, at the time of entering the plea, knew the applicable penalties for the offenses of first and second degree murder. The court was not required to advise him of penalties for all lesser included offenses.
4
The judgment is affirmed.
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588 P.2d 164 (1978)
STATE of Utah, Plaintiff and Respondent,
v.
Earl B. HANSEN, Defendant and Appellant.
No. 15655.
Supreme Court of Utah.
November 27, 1978.
*165 Robert Van Sciver, Edward K. Brass, Salt Lake City, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Michael L. Deamer, William W. Barrett, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.
CROCKETT, Justice:
Defendant Earl B. Hansen appeals from a jury conviction for attempted theft by receiving stolen property.[1] He argues that the conduct of the policeman who sold him three guns constituted entrapment as a matter of law and, thus, the charge should have been dismissed. Alternatively, he seeks a new trial on the grounds that error was committed in admitting evidence of past offenses in contravention of Section 76-2-303(6), quoted below.
As part of a plan to investigate "fencing" of stolen property occurring in northwest Salt Lake City, city policeman Floyd Ledford, on January 26, 1976, assumed an undercover identity as a city cement inspector at a concrete plant in that area. The defendant was an employee at the plant. Although Officer Ledford was only at the plant for about a week, he and the defendant became acquainted.
At the trial, Officer Ledford testified on direct examination that during the week he was at the cement plant, the defendant told him that he had some stolen CB radios, televisions, and guns which he had been selling and inquired if the officer would be interested in buying any of them. The officer further stated that about a week after he left that assignment, the defendant called him at his home and offered to sell him some guns. Their next contact was on May 6, when Officer Ledford called the defendant at work, told him that there was going to be a burglary of some guns within a few days and asked him if he would be interested in buying some when they were available. After the defendant stated that he would be interested, the officer called him back on May 10, said he had the guns, they met and he sold the defendant three of them.
*166 In fact, there had not been a burglary; rather, Officer Ledford obtained the guns from police headquarters. Within two hours after the sale, the defendant was arrested and the guns were recovered from the trunk of his car; and the defendant was charged with this crime.
The issues involved herein require consideration of certain sections of our new criminal code.[2] Section 76-2-303, U.C.A. 1953, subsection (1) defines entrapment:
Entrapment occurs when a law enforcement officer .. . induces the commission of an offense in order to obtain evidence of the commission for prosecution by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
In regard to the proper interpretation and application of that statute, we are not persuaded by the defendant's argument that the desire and disposition of the defendant to commit crime becomes any less important,[3] nor that the test to be applied is an objective one (focusing on the officer's conduct as it might affect an average person) rather than a subjective test (dealing with the intent and disposition to commit crime of the particular defendant).[4] Though the statutory language is concededly not exactly the same as used in some of our cases, we do not see that it has effected any substantial change in the meaning of our previous rulings in regard to when entrapment occurs.
It is noted that the section just quoted expressly recognizes both concepts: the "methods" employed by the police and whether the crime was committed "by one not otherwise ready to commit it." Whenever there is a genuine issue as to entrapment, the critical question to be determined remains: whether the crime is mainly the product of the defendant's own intent and desire and is thus his voluntary act, or whether it is mainly the product of some incitement or inducement by the police officer.[5]
The defendant here contends that the trial court should have ruled as a matter of law that he was entrapped. For him to prevail on that contention, it would have to appear that the only reasonable view of the evidence is that the conduct of the police officer was such a principal motivation as to raise a reasonable doubt that the defendant would have committed the crime.[6] But when there is a reasonable basis in the evidence upon which jurors could believe beyond a reasonable doubt that the crime was a result of the defendant's own voluntary desire and intent to commit the crime, the fact that a police officer merely afforded him the opportunity to commit it, does not amount to entrapment. In view of the lack of certainty as to the conclusion to be drawn from the conflicting evidence in this case, the trial court correctly refused to rule as a matter of law that the defendant was entrapped and submitted that issue to the jury.[7]
The question of more vital concern here is the defendant's contention that the court committed error in allowing Officer Ledford to testify on direct examination in the State's case in chief as to matters relating to the defendant's previous transactions, relating to stolen property. In certain cases previously decided by this Court, we have *167 indicated that where the defense of entrapment was interposed it was permissible to introduce evidence relating to prior conduct between the defendant and the officer for the purpose of countering that defense.[8] In regard to that subject, our legislature has enacted Section 76-2-303(6) upon which the defendant relies in support of his attack upon his conviction. It provides that:
In any hearing before a judge or jury where the defense of entrapment is in issue, past offenses of the defendant shall not be admitted except that in a trial where the defendant testifies he may be asked of his past convictions for felonies and any testimony given by the defendant at a hearing on entrapment may be used to impeach his testimony at trial. [All emphasis herein added.]
The reason for such an enactment, and for adjudications to that effect, is that the defendant is entitled to be tried and have his guilt or innocence determined on the basis of the evidence as to the crime charged, without the issue being confused by engendering prejudice against him by testimony concerning prior misdeeds or misconduct (with certain exceptions for justifiable reasons).[9]
It is within the prerogative of the legislature to enact rules of evidence;[10] and it is the duty of the courts to give them effect. If that is to be done in this case, the State should not be permitted to proceed in its case in chief to introduce evidence of past offenses or misconduct of the defendant. However, that is the extent of the proper application of that statute. It cannot be invoked to thwart the processes of justice by preventing the presentation of any competent evidence to meet any material issue raised in the case. The prosecution (i.e., the public it represents) is also entitled to fairness and justice.
It would be manifestly unfair to permit the defendant to raise the issue of entrapment, that is, to say in effect that he had no intention to commit a crime, but was persuaded to do so by the actions of a police officer, then prevent the prosecution from presenting any available evidence to the contrary. Consequently, when it becomes apparent from the evidence that the defendant is relying upon the defense of entrapment, the carrying out of the fundamental purpose of the trial, that of ascertaining the truth, makes it both logical and necessary that the State be allowed to present any evidence in impeachment or rebuttal which would show the defendant's disposition to commit the crime charged.[11] This is in accordance with the law as correctly stated in Rule 55, Utah Rules of Evidence;[12] and the fact that this may include prior acts of crime or misconduct would not render such evidence inadmissible.[13]
Upon our survey of the record we cannot say with assurance that the result would have been the same if the mandate of the statute had been complied with as discussed herein. Therefore, we see no justification for concluding that the error was not prejudicial to the defendant.[14] Consequently, it is necessary that the judgment be reversed and that the cause be remanded *168 for a new trial,[15] or for such other proceedings as may seem advised, consistent with this decision. No costs awarded.
WILKINS, Justice: (concurring with comments).
I agree with the main opinion reversing the judgment and remanding the case for a new trial based upon error in allowing into evidence testimony relating to prior contacts between defendant and the undercover agent. I also agree with Mr. Justice Crockett's construction of Section 76-2-303(6) Utah Code Annotated, 1953, as amended, in this case. However, I would also reverse the judgment because the objective test for entrapment was not applied in the case. The reasons I feel the objective test should apply have been effectively stated by Mr. Justice Maughan in State v. Curtis[1] and State v. Bridwell.[2]
MAUGHAN, Justice, concurs in the views expressed in the concurring opinion of Mr. Justice WILKINS.
ELLETT, Chief Justice (dissenting):
The evidence in this case is admissible under Rule 55, Utah Rules of Evidence, which states:
... evidence that a person committed a crime . .. on a specified occasion, is inadmissible to prove his disposition to commit crime ... but, ... such evidence is admissible when relevant to prove some other material fact including absence of mistake or accident, motive, opportunity, intent, preparation, plan, knowledge or identity. [Emphasis added.]
The rules of evidence are procedural law, not substantive law. It is the Court's sole prerogative to determine what evidence is admissible, and those rules are contained in the Utah Rules of Evidence as adopted by this Court. The legislature has no authority to adopt or amend such procedural rules; and until modified by this Court, Rule 55 will control the admissibility of evidence.
I would affirm the judgment.
HALL, Justice (dissenting):
I do not agree with the interpretation the majority opinion places upon U.C.A., 1953, 76-2-303(6).
The statute in question is not to be viewed as providing a unique rule of evidence applicable only where the defense of entrapment is raised. On the contrary, it simply states a widely accepted general principle of the law of evidence, applicable to all criminal prosecutions, viz: that evidence of a criminal act, other than relating to a crime charged, is not admissible. Needless to say, there are usually exceptions to every general rule, and such is the case here. The statute itself, in the same sentence, states one exception that permits cross-examination of a defendant as to his prior convictions for felonies.
Further notable exceptions to the general rule have been recognized in both federal and state systems and have been made the subject of specific rules of procedure.[1]
Utah has adopted a rule of evidence[2] which is identical to the uniform rule[3] and which renders evidence of prior crime "admissible when relevant to prove some other fact... ." This Court has ruled upon the admissibility of such evidence on numerous occasions and, specifically in an entrapment case, has ruled that evidence of other criminal activity was properly admitted when offered to show the state of mind of the defendant.[4]
*169 Evidence of prior crimes and wrongdoings is clearly relevant evidence and the only justification for excluding it is that its relevance is outweighed by its prejudicial effect. Such is not the case here. The trial court properly applied the law in admitting evidence of prior contacts between Officer Ledford and the defendant.
I would affirm.
NOTES
[1] Pursuant to 76-6-408, U.C.A. 1953.
[2] S.L.U., 1973, ch. 196.
[3] See State v. Mullen, Iowa, 216 N.W.2d 375 (1974). We, on the other hand, have stated that the mental state of the defendant must be examined to ascertain the validity of an entrapment defense. State v. Casias, Utah, 567 P.2d 1097 (1977).
[4] See Grossman v. State, Alaska, 457 P.2d 226 (1969); People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973).
[5] State v. Pacheco, 13 Utah 2d 148, 369 P.2d 494 (1962).
[6] See State v. Kasai, 27 Utah 2d 326, 495 P.2d 1265, 1267 (1972); 22 C.J.S. Criminal Law § 45(2).
[7] State v. Schultz, 27 Utah 2d 391, 496 P.2d 893 (1972).
[8] State v. Perkins, 19 Utah 2d 421, 432 P.2d 50 (1967); State v. Kasai, supra note 6.
[9] See footnote 12 below.
[10] That the legislature has the power to prescribe rules of evidence and methods of proof provided that they do not violate constitutional requirements, see 29 Am.Jur.2d, Evidence, Sec. 9, citing numerous supporting cases.
[11] See 61 A.L.R.3d 293.
[12] The rule states that: "... evidence that a person committed a crime ... is inadmissible to prove his disposition to commit crime ... but, ... such evidence is admissible when relevant to prove some other material fact including ... motive, opportunity, intent, preparation, plan, knowledge or identity."
[13] See State v. Dickson, 12 Utah 2d 8, 361 P.2d 412 (1961), citing 1 Wharton's Criminal Evidence, Secs. 233 et seq. (12th Ed. 1955).
[14] See 77-42-1, U.C.A., 1953; State v. Siebert, 6 Utah 2d 198, 310 P.2d 388 (1957).
[15] That where error has been committed the defendant is entitled to a new trial, but not to a dismissal of the case, see State v. Jaramillo, 25 Utah 2d 328, 481 P.2d 394 (1971).
[1] Utah, 542 P.2d 744 (1975).
[2] Utah, 566 P.2d 1232 (1977).
[1] Rule 55, Uniform Rules of Evidence, 1953, closely patterned after the Federal Rules of Evidence.
[2] Rule 55, Utah Rules of Evidence.
[3] Supra, footnote 1.
[4] State v. Kasai, 27 Utah 2d 326, 495 P.2d 1265 (1972).
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50116
Conference Calendar
MITCHEL PITRE,
Plaintiff-Appellant,
versus
J. TOMMIE; N. ARMSTRONG; JUAN R. PASENO;
JUAN F. GAYTAN,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-96-CV-34
- - - - - - - - - -
June 25, 1996
Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mitchel Pitre, no. 593925, appeals the dismissal of his
prisoner civil rights complaint as frivolous. Pitre contends
that he was a victim of sex discrimination due to the removal of
female guards from his pod in administrative segregation; that
the conditions of his confinement violated the Eighth Amendment
due to the occasional denial of showers, clean clothes, clean
*
Pursuant to Local Rule 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 Local Rule
47.5.4.
No. 96-50116
- 2 -
sheets, and breakfast trays; that his rights were violated
because the prisoners on his pod were labeled troublemakers and
“mess-ups”; that defendant Brysch conspired with the other
defendants to deprive him of access to the courts; and that the
district court erred by imposing costs on him.
We have reviewed the record, Pitre’s brief, and the district
court’s order and we have found no reversible error. Regarding
all of Pitre’s claims other than his conditions-of-confinement
contention, we find the appeal from the dismissal of those claims
frivolous for essentially the reasons relied upon by the district
court. See Pitre v. Tommie, no. SA-96-CA-034 (W.D. Tex. Jan. 22,
1996). Regarding Pitre’s conditions-of-confinement contention,
the deprivations of which he complains were occasional and de
minimis and therefore did not infringe on his constitutionally
protected rights. Ammons v. Baldwin, 705 F.2d 1445, 1448 (5th
Cir. 1983), cert. denied, 465 U.S. 1006 (1984). Because the
appeal is frivolous, it is dismissed.
We caution Pitre that any additional frivolous appeals filed
by him will invite the imposition of sanctions. To avoid
sanctions, Pitre is further cautioned to review any pending
appeals to ensure that they do not raise arguments that are
frivolous because they previously have been decided by this
court.
Finally, because Pitre’s appeal is frivolous, his motion for
a protective order is DENIED.
No. 96-50116
- 3 -
APPEAL DISMISSED. 5TH CIR. R. 42.2. SANCTIONS WARNING
ISSUED.
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446 F.2d 54
UNITED STATES of America, Plaintiff-Appellee,v.Fernando MACIAS, Defendant-Appellant.
No. 71-1724 Summary Calendar.*
United States Court of Appeals, Fifth Circuit.
July 13, 1971.
Appeal from the United States District Court for the Western District of Texas; Ernest Guinn, District Judge.
Sam Sparks, El Paso, Tex., court appointed, for defendant-appellant.
Seagal V. Wheatley, U. S. Atty., Ralph E. Harris, El Paso, Tex., for plaintiff-appellee.
Before COLEMAN, SIMPSON and MORGAN, Circuit Judges.
PER CURIAM:
1
On January 4, 1971, we remanded this case for an evidentiary hearing to determine whether Fernando Macias had been denied effective assistance of counsel when convicted of the unlawful sale of heroin [United States v. Macias, 435 F. 2d 1294 (1971)].
2
The hearing was held, with adverse results to Macias. He again appeals. We affirm.
3
The record clearly supports the findings and conclusions of the District Court. Indeed, candor compelled appellate counsel for Macias to concede this in the brief he filed with this Court. Due fidelity to the Court and the client forbade any other course.
The judgment of the District Court is
4
Affirmed.
Notes:
*
Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I
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TRYON v. STATE
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TRYON v. STATE2018 OK CR 20Case Number: D-2015-331Decided: 05/31/2018ISAIAH GLENNDELL TRYON, Appellant v. STATE OF OKLAHOMA, Appellee.
Cite as: 2018 OK CR 20, __ __
O P I N I O N
HUDSON, JUDGE:
¶1 Appellant, Isaiah Glenndell Tryon, was tried by jury in the District Court of Oklahoma County, Case No. CF-2012-1692, and convicted of Murder in the First Degree in violation of 21 O.S.2011, § 701.7(A). In a separate capital sentencing phase, Appellant's jury found the existence of four statutory aggravating circumstances1 and sentenced Appellant to death. The Honorable Cindy H. Truong, District Judge, presided over the trial and pronounced judgment and sentence accordingly. Appellant now appeals his conviction and death sentence. We affirm.
BACKGROUND
¶2 On March 16, 2012, around 10:30 a.m., Appellant fatally stabbed Tia Bloomer inside the Metro Transit bus station in downtown Oklahoma City. Tia recently broke off her relationship with Appellant due in part to his inability to support their infant child. Appellant was terminally unemployed and drew as income a meager $628.00 a month in Social Security disability benefits. The couple too had a stormy relationship. The day before her death--March 15, 2012--Tia called Detective Jeffrey Padgett of the Oklahoma City Police Department (OCPD) Domestic Violence Unit to schedule a follow-up interview for an assault case in which she was the named victim. Tia previously denied to authorities that Appellant had assaulted her. Instead, she claimed another man had assaulted her.
¶3 During her phone conversation with Detective Padgett, Tia repeated this claim but agreed nonetheless to meet the next day. Later that night, Tia sent Appellant a text message stating the following:
It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday.
(State's Ex. 38).
¶4 The next day, Appellant accosted Tia inside the downtown bus station while she was talking on her cell phone. Surveillance video from inside the terminal showed Appellant speaking to Tia before stabbing her repeatedly with a knife. Immediately before this brutal attack, an eyewitness heard Tia yell for Appellant to leave her alone. Appellant then stabbed Tia in the neck with the knife, causing blood to gush out from her neck. The surveillance video shows Appellant grabbing the victim then stabbing her when she tried to leave the terminal building. Appellant stabbed the victim repeatedly after she fell to the floor. The victim said "help" as Appellant continued stabbing her repeatedly and blood gushed out of her wounds. During the attack, several bystanders unsuccessfully attempted to pull Appellant off the victim. At one point, a bystander can be seen on the surveillance video dragging Appellant across the floor while Appellant held on to Tia and continued stabbing her.
¶5 Appellant released his grip on the victim only after Kenneth Burke, a security guard, sprayed him in the face with pepper spray. The security guard then forced Appellant to the ground, handcuffed him and ordered the frantic crowd to move away both from Appellant and the bloody scene surrounding the victim's body. A bloody serrated knife with a bent blade was found resting a short distance away on the floor.
¶6 While waiting for police to arrive, Burke checked on the victim but found no signs of life. Paramedics soon arrived and decided to transport the victim to the hospital because they detected a faint pulse. Despite the efforts of emergency responders, Tia died from her injuries. The medical examiner autopsied the victim and found seven (7) stab wounds to her head, neck, back, torso and right hand. Several superficial cuts were also observed on the victim's face and the back of her neck. The medical examiner testified these cuts were consistent with having been made by a serrated blade. The cause of death was multiple stab wounds. In addition to these injuries, the medical examiner observed redness and heavy congestion in the victim's eyes. The medical examiner did not associate this congestion with the victim's stab wounds but testified it is sometimes found in cases of strangulation.
¶7 OCPD Lieutenant Brian Bennett was one of the first officers on the scene. He removed Appellant from the ground and escorted him out of the bus station. Because Appellant had a great deal of blood on his hands and clothing, Lt. Bennett asked whether Appellant needed medical treatment. Appellant replied that he did not. Appellant said he was not injured and all of the blood on him "was hers." Appellant was nonetheless transported to nearby St. Anthony's Hospital where he was treated for cuts to his hand. When asked by a doctor about these injuries, Appellant calmly responded that he had stabbed his girlfriend.
¶8 After being released from the hospital, Appellant was transported to police headquarters. There, he was read the Miranda2 warning by OCPD Detective Robert Benavides and agreed to talk. During his interview, Appellant admitted stabbing Tia repeatedly while inside the bus terminal. Appellant said he stabbed the victim six times with a kitchen knife he brought from home. Appellant explained that he and Tia recently broke up and that they had been fighting over his support of their infant son. When Appellant saw Tia at the bus station, he walked up and tried to talk with her about their problems. Tia refused and told Appellant to get away from her. That is when Appellant said he pulled out his knife and began stabbing her.
¶9 Appellant claimed he did not know Tia would be at the bus station that morning or that he would even see her that day. Appellant did know, however, that Tia had some business to take care of that day. Appellant admitted bringing the knife with him because if he saw Tia, he planned to stab her. Appellant said Tia was facing him when he grabbed her and started stabbing her in the neck. Appellant described how he continued stabbing Tia after she fell to the ground and how he kept hold of her arm. Appellant said he was sad and depressed when he stabbed Tia because he didn't want to be without her. Nor did he want anyone else to be with her. Appellant did not believe he could find someone else to be with. Appellant admitted that what he did to Tia "wasn't right." At one point during the interview, Appellant demanded protective custody because "people ain't gonna like that type of shit" and would try to kill him in the county jail.
¶10 During the interview, Appellant asked whether Tia was okay. Detective Benavides promised to let him know about Tia's condition as soon as he found out. When informed by Detective Benavides at the end of the interview that Tia did not survive her injuries and was dead, Appellant showed no emotion to this news.
JURY SELECTION
¶11 In Proposition I, Appellant complains that the trial court violated due process by limiting the questions defense counsel was allowed to ask of the prospective jurors. Appellant says the trial court improperly restricted the questions he was allowed to ask the venire panel concerning their views on both the death penalty and mitigating evidence. This, Appellant says, limited his ability to ask questions which would provide the information needed to intelligently exercise his peremptory challenges.
¶12 The Supreme Court has recognized that a critical part of the constitutional right to an impartial jury is "an adequate voir dire to identify unqualified jurors." Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 2230, 119 L. Ed. 2d 492 (1992). "The purpose of voir dire examination is to discover whether there are grounds to challenge prospective jurors for cause and to permit the intelligent use of peremptory challenges." Harmon v. State, 2011 OK CR 6, ¶ 7, 248 P.3d 918, 927 (citation omitted). Rule 6 of the Rules of the District Courts, Title 12, O.S.2011, Ch.2, App., requires both the State and defense have a "reasonable opportunity to supplement" the trial court's examination of prospective jurors. Mayes v. State, 1994 OK CR 44, ¶ 15, 887 P.2d 1288, 1298.
¶13 Yet, this right is not unlimited. The manner and extent of examination of jurors is not "prescribed by any definite, unyielding rule, but instead rests in the sound discretion of the trial judge." Id. Towards that end, Rule 6 directs that "[c]ounsel shall scrupulously guard against injecting any argument in their voir dire examination and shall refrain from asking a juror how he would decide hypothetical questions involving law or facts." The trial court retains broad discretion in restricting questions "that are repetitive, irrelevant or regard legal issues upon which the trial court will instruct the jury." Harmon, 2011 OK CR 6, ¶ 7, 248 P.3d at 927. "There is no abuse of discretion as long as the voir dire examination affords the defendant a jury free of outside influence, bias or personal interest." Id. Where, as here, a defendant challenges the restrictions placed upon his voir dire examination, the question is whether the trial court's actions rendered his trial fundamentally unfair. Morgan, 504 U.S. at 730, 112 S. Ct. at 2230.3
¶14 Appellant challenges six separate instances in which the trial court restricted his examination of prospective jurors. In the first instance, defense counsel described for the prospective jurors a "hypothetical situation" in which a defendant is convicted of "intentional first degree murder of a person who committed malice aforethought murder, planned it, intended to do it, did it of an innocent person." Defense counsel then asked:
I want to know what each of your individual feelings are about the death penalty under that situation for a person who's guilty of malice aforethought murder.
(Tr. I 248).
¶15 The prosecutor immediately objected and, at a bench conference, argued defense counsel was impermissibly posing a hypothetical scenario to the jury by "running his facts of this case by them, and wanting to know are they predisposed to consider any of these three punishments." Defense counsel responded that Appellant had a constitutional right under Morgan v. Illinois, supra, to ask the challenged question. Defense counsel urged that he could only ascertain whether the prospective jurors would automatically vote for the death penalty if they first knew "what first degree murder is. It doesn't involve heat of passion, doesn't involve some of the other things." The trial court stated it would provide definitions and sustained the objection.
¶16 The trial court did not abuse its discretion in limiting defense counsel's voir dire in this manner. In the challenged passage, defense counsel was attempting to ascertain what sentences the prospective jurors would give based on a "hypothetical" scenario drawn from the facts of the case. This is impermissible under our decisions. See Robinson v. State, 2011 OK CR 15, ¶ 16, 255 P.3d 425, 432-33 ("An attorney should not use voir dire to test prospective jurors' willingness to accept a party's theory of the case, rather than the juror's impartiality[.]"); Black v. State, 2001 OK CR 5, ¶ 19, 21 P.3d 1047, 1058 ("When counsel attempted to ask questions dealing specifically with the facts of this case or to give hypotheticals based on the facts of this case, the trial court properly sustained the State's objections."); Bernay v. State, 1999 OK CR 37, ¶¶ 9-11, 989 P.2d 998, 1005-06 (no abuse of discretion where defense counsel was prohibited from attempting to rehabilitate six prospective jurors using "specific or hypothetical factual patterns under which the prospective juror might consider the death penalty appropriate."); Jackson v. State, 1998 OK CR 39, ¶ 12, 964 P.2d 875, 883 (no abuse of discretion where the trial court restricted voir dire questioning regarding legal issues upon which the trial court would instruct).
¶17 Appellant's citation to Morgan v. Illinois does not support his claim. Morgan held that due process of law mandates that a capital defendant must be allowed, upon request, to ask whether a prospective juror would automatically impose the death penalty upon conviction of the defendant no matter what the facts are. Morgan, 504 U.S. at 721, 735-36, 112 S. Ct. at 2233. The fact-intensive question posed by Appellant did not address this issue. There is a difference between 1) asking whether a prospective juror would automatically impose the death penalty, regardless of the facts of the case, upon the defendant's conviction for first degree murder; and 2) asking prospective jurors to prejudge the appropriate sentence in light of the supposed facts of the case. Defense counsel was engaged in the latter exercise which we have found impermissible. Lovell v. State, 1969 OK CR 177, ¶¶ 9-10, 455 P.2d 735, 738 (hypothetical questions designed "to have jurors indicate in advance what their decision will be under certain state of evidence or upon a certain state of facts" are improper) (citation omitted). Morgan does not require such questioning.4
¶18 The remaining defense questions disallowed by the trial court are of similar ilk. Asking prospective jurors what they would want to know about a person before sentencing them to death; whether jurors could realistically consider life with the possibility of parole where the murder victim was the defendant's girlfriend and mother of his baby; and whether jurors could imagine imposing life with the possibility of parole for a defendant who killed a loved one as opposed to a stranger are the types of questions we have previously ruled impermissible. Frederick v. State, 2017 OK CR 12, ¶¶ 22-28, 400 P.3d 786, 802-03 (no abuse of discretion where trial court disallowed defense questioning of prospective jurors about their ability to consider all three possible punishments in the event appellant was convicted of murdering his mother); Harmon, 2011 OK CR 6, ¶ 9 n.3, 248 P.3d at 927 n.3 (finding the trial court properly limited defense voir dire asking, inter alia, "which punishment [a juror] would favor if the State proved Harmon killed a convenience store clerk[,]" "the kinds of circumstances that would warrant the death penalty[,]" and "what the jurors thought were proper circumstances to consider in deciding punishment and what circumstances jurors thought deserved the death penalty."); Lovell, 1969 OK CR 177, ¶¶ 9-10, 455 P.2d at 738 (prosecutor's question whether any of the prospective jurors "would not send [the defendant] to the penitentiary if the evidence shows that he was guilty of driving while under the influence of liquor, after former conviction" was improper).
¶19 The limitations imposed upon the defense voir dire in this case were proper. Despite the restrictions, defense counsel was nonetheless allowed to question several jurors about whether they could consider a life sentence with the possibility of parole where the victim is a loved one and the mother of a child; whether they understood that first degree malice aforethought murder involves an intentional killing; their feelings on the death penalty for an intentional murder; and whether they could consider all three punishments for someone convicted of an intentional malice aforethought killing. Moreover, the record shows defense counsel was afforded an adequate voir dire which allowed Appellant to probe the jurors' attitudes toward the death penalty and potential mitigating circumstances in the case.
¶20 Under the total circumstances, the trial court did not abuse its discretion in limiting the defense voir dire. Appellant was provided an adequate voir dire to identify unqualified jurors and intelligently exercise his peremptory challenges. Appellant's trial was not rendered fundamentally unfair from the trial court's limitations on voir dire. Proposition I is denied.
¶21 In Proposition II, Appellant complains that Prospective Jurors K.T. and A.F. should have been removed for cause. K.T. sat as a juror. A.F., however, was removed with the fifth defense peremptory. We have held that:
In order to properly preserve for appellate review an objection to a denial of a challenge for cause, a defendant must demonstrate that he was forced over objection to keep an unacceptable juror. This requires a defendant to excuse the challenged juror with a peremptory challenge and make a record of which remaining jurors the defendant would have excused had he not used that peremptory challenge to cure the trial court's alleged erroneous denial of the for cause challenge.
Eizember v. State, 2007 OK CR 29, ¶ 36, 164 P.3d 208, 220 (internal citations omitted). Here, Appellant challenged the ability of both K.T. and A.F. to be impartial and renewed his challenges at the conclusion of voir dire. Appellant preserved his for-cause challenge to A.F. by using a peremptory challenge against him, requesting additional peremptory challenges and effectively identifying three other jurors he would have excused--R.G., P.S. or K.T.--with the peremptory challenge he used to remove A.F.
¶22 Appellant failed to preserve his for-cause challenge to K.T., however, by 1) failing to excuse her with an available peremptory challenge and 2) using peremptory challenges against other prospective jurors whom he failed to claim could not be impartial. Our review of the trial court's handling of Appellant's for-cause challenge to K.T. is thus waived for all but plain error. Id., 2007 OK CR 29, ¶ 48, 164 P.3d at 223.
¶23 The trial court used the struck juror method of jury selection in which thirty (30) prospective jurors were seated and systematically questioned by the court and parties. Judge Truong initiated the questioning of the prospective jurors then allowed counsel for both parties to question the prospective jurors. When prospective jurors were excused, they were replaced so that thirty prospective jurors remained on the panel.
¶24 At the conclusion of the State's questioning, the prosecutor passed the panel for cause. At the conclusion of the defense questioning, defense counsel announced he had no further questions of the venire panel but refused to pass the panel for cause. Instead, defense counsel made a lengthy record complaining about the trial court's limitations on his voir dire examination. This argument was based largely on the same issues raised by Appellant in Proposition I above. At the conclusion of this argument, defense counsel read for the court the names of twelve prospective jurors he said should be removed for cause in light of the trial court's restrictions on defense counsel's voir dire of the prospective jurors. Defense counsel stated that prospective jurors W.T., N.M., M.V., La.H., B.M., J.F., Ly.H., A.F., K.T., D.W., R.G. and P.S. should be removed for cause. Notably, with the exception of A.F. and K.T., Appellant did not challenge any of these prospective jurors for cause earlier in the voir dire.
¶25 The trial court denied Appellant's motion to strike these particular jurors. Defense counsel then requested nine extra peremptory challenges "because you are requiring us to use peremptory challenges to kick people that should have been kicked because they were excusable for cause." The trial court too denied this request. Both parties then exercised nine peremptory challenges each, leaving twelve jurors to hear the case. Defense counsel used peremptory challenges to remove prospective jurors W.T., N.M., M.V., La.H., A.F., B.M., J.F., Ly.H., D.W.--nine of the twelve prospective jurors defense counsel identified just moments earlier as ones who should be removed for cause based on the trial court's limitations on the defense voir dire. Ultimately, K.T., P.S. and R.G. survived the exercise of peremptory challenges by both parties and sat on the jury.
¶26 Appellant made a conscious decision not to remove K.T. with any of the eight peremptory challenges he used against prospective jurors who were, in effect, not properly challenged for cause. In Proposition I, we rejected Appellant's challenge to the trial court's limitations on the defense voir dire. Moreover, Appellant never challenged these eight prospective jurors on any other grounds. By failing to excuse K.T., who was challenged for cause well before the end of the voir dire on grounds unrelated to the trial court's restrictions on voir dire, Appellant has waived all but plain error relating to K.T.'s placement on the jury. Appellant may have had a difficult choice in determining whether to strike K.T. from the jury panel. But, as the Supreme Court has observed in this context, "[a] hard choice is not the same as no choice." United States v. Martinez-Salazar, 528 U.S. 304, 315, 120 S. Ct. 774, 781, 145 L. Ed. 2d 792 (2000).
¶27 We now turn to the merits of Appellant's challenges to A.F. and K.T. Appellant says the trial court was required to remove prospective juror A.F. for cause. Appellant argues that A.F.'s answers during defense voir dire showed A.F. could not uphold the juror's oath due to his inability to consider all three sentencing options. Specifically, Appellant points to A.F.'s responses concerning his ability to consider the sentence of life imprisonment with the possibility of parole.
¶28 We have stated the following standard of review for resolving challenges of this type:
The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" [Waiwright v.] Witt, 469 U.S. [412], at 424, 105 S. Ct. [844], at 852, [83 L. Ed. 2d 841 (1985)]. See also Gray v. Mississippi, 481 U.S. 648, 658, 107 S. Ct. 2045, 2051, 95 L. Ed. 2d 622 (1987). Inherent in this determination is that the potential juror has been fully informed of the law and his or her responsibilities under the law and oath of a juror. This standard does not require a juror's bias be proved with unmistakable clarity; neither must the juror express an intention to vote against the death penalty automatically. Witt, 469 U.S. at 425, 105 S. Ct. at 852. "Deference must be paid to the trial judge who sees and hears the jurors". Id., 469 U.S. at 425, 105 S. Ct. at 853. See also Uttecht v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 2224, 167 L. Ed. 2d 1014 (2007) ("deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.").
This Court has adhered to the principles set forth in Witt. See Glossip v. State, 2007 OK CR 12, ¶¶ 31-33, 157 P.3d 143, 150-51; Williams v. State, 2001 OK CR 9, ¶ 10, 22 P.3d 702, 709 (and cases cited therein). We have said the Witt standard only requires that each juror be willing to consider each of the three statutory punishments: the death penalty, life imprisonment without the possibility of parole, and life imprisonment (with the possibility of parole). Glossip, 2007 OK CR 12at ¶ 31, 157 P.3d at 150. See also Williams, 2001 OK CR 9at ¶ 10, 22 P.3d at 709-10. Further, all doubts regarding juror impartiality must be resolved in favor of the accused. Williams, 2001 OK CR 9at ¶ 10, 22 P.3d at 709-10. This Court will look to the entirety of the juror's voir dire examination to determine if the trial court properly excused the juror for cause. Id. As the trial court personally observes the jurors and their responses, this Court will not disturb its decision absent an abuse of discretion. Id.
Eizember, 2007 OK CR 29, ¶¶ 41-42, 164 P.3d at 221-22.
¶29 We find prospective juror A.F.'s answers do not show that his views on the life with possibility of parole sentencing option would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. A.F. provided inconsistent responses concerning his ability to give meaningful consideration to the life imprisonment sentencing option where the victim was a loved one. When admonished by the trial court to set aside counsel's characterization of the victim's relationship with the defendant because the jury had not heard evidence relating to it, A.F. made clear that he could listen to all the evidence and give meaningful consideration to all three sentencing options. Even after the trial court's questioning, A.F.'s responses to defense counsel's questions revealed his ability to give fair and meaningful consideration to a life sentence--even though personally he did not see it as a desirable sentencing option for the murder of a loved one.
¶30 We give broad deference on appeal to the trial court's rulings on for-cause challenges precisely because of the situation presented here. "A trial court's 'finding may be upheld even in the absence of clear statements from the juror that he or she is impaired . . . .'" White v. Wheeler, __U.S.__, 136 S. Ct. 456, 460, 193 L. Ed. 2d 384 (2015) (quoting Uttecht, 551 U.S. at 7, 127 S. Ct. at 2223). That is because we are presented on appeal simply with the cold face of the record. The trial court, by contrast, was able to see and hear prospective juror A.F. Judge Truong was in a superior position to make the credibility determinations critical to determining A.F.'s qualifications to serve. The Supreme Court has made clear that "when there is ambiguity in the prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of the State." Uttecht, 551 U.S. at 7, 127 S. Ct. at 2223 (quoting Witt, 469 U.S. at 434, 105 S. Ct. at 857); Accord White, 136 S. Ct. at 461. We afford that type of broad deference in the present case in denying relief for Appellant's challenge to prospective juror A.F.
¶31 We will reverse the lower court's ruling on a for-cause challenge where there is no support for it in the record. Uttecht, 551 U.S. at 20, 127 S. Ct. at 2230 ("The need to defer to the trial court's ability to perceive jurors' demeanor does not foreclose the possibility that a reviewing court may reverse the trial court's decision where the record discloses no basis for a finding of substantial impairment."). But where, as here, the record demonstrates a thorough vetting of the prospective juror's views and we are left simply with ambiguous responses, the trial court's ruling will be honored on appeal. We are not faced in the present case with a prospective juror who would automatically vote for, or against, any one of the three penalty options. Nor were A.F.'s responses such that he was substantially impaired in his ability to fairly consider and impose a life sentence--even if the victim was a loved one of the defendant.
¶32 Thus, we find the trial court did not abuse its discretion in denying Appellant's request to remove prospective juror A.F. from the venire panel. See Myers v. State, 2006 OK CR 12, ¶¶ 6-9, 133 P.3d 312, 320-21, overruled on other grounds, Davis v. State, 2018 OK CR 7, ¶ 26 n.3, __P.3d.__. The record does not show A.F.'s views on the life imprisonment sentencing option would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. We deny relief for this aspect of Appellant's Proposition II claim.
¶33 We likewise find no plain error from the trial court's refusal to remove prospective juror K.T. Under the plain error test, an appellant must show an actual error, that is plain or obvious, affecting his substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121.
¶34 Appellant argues K.T. should have been removed for cause for actual bias. See 22 O.S.2011, § 659 (defining "actual bias" as "the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging . . . .").
¶35 The record shows K.T. initially provided inconsistent answers concerning her ability to set aside her previous experiences with domestic violence. As K.T. went further along in the questioning, however, it became evident that she could in fact set aside her personal experiences and render a fair and impartial verdict based solely on the evidence admitted in court. She made clear--particularly in her final responses to the court and defense counsel--that she could do this. The record shows too that, as the parties and court explained what the law required of her, K.T.'s initial concerns about her ability to be fair and impartial vanished. This is not atypical in capital voir dire and hardly a basis for removing a prospective juror for cause. Davis v. State, 2011 OK CR 29, ¶¶ 41-42, 268 P.3d 86, 105. "Any ambiguity or inconsistencies in her responses were subject to resolution by the trial court. Having benefit of observing [K.T.'s] demeanor throughout voir dire, the court found her responses credible and insufficient to excuse her for cause." Id., 2011 OK CR 29, ¶ 42, 268 P.3d at 105. Our review of the totality of K.T.'s voir dire supports the trial court's decision. The trial court therefore did not abuse its discretion in denying Appellant's for-cause challenge to K.T. Because there was no error, there is no plain error warranting relief based on this claim. Pullen v. State, 2016 OK CR 18, ¶ 8, 387 P.3d 922, 926.
¶36 Finally, because the trial court did not abuse its discretion in failing to remove prospective jurors A.F. and K.T., we need not address whether Appellant was entitled to additional peremptory challenges. Davis, 2011 OK CR 29, ¶ 43, 268 P.3d. at 105. Proposition II is denied.
ALLEGED EVIDENTIARY ERROR
¶37 In Proposition III, Appellant challenges the admission of State's Exhibit 38, the text message sent from Tia Bloomer to Appellant the night before the killing, which stated:
It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday.
(State's Ex. 38). Appellant argues this text message was testimonial and, thus, its admission violated his Sixth Amendment right to confrontation of witnesses. He also argues it was inadmissible hearsay under state evidence rules. The trial court admitted the text message, finding it was not offered to prove the truth of the matter asserted but, rather, was relevant simply because the text message was sent to Appellant and was probative on the issue of Appellant's motive to commit the murder the next morning.
¶38 We typically review a trial court's decision to admit evidence for an abuse of discretion. However, "the determination of whether admission of hearsay evidence violates the Confrontation Clause . . . is a question of law we review de novo." Hanson v. State, 2009 OK CR 13, ¶ 8, 206 P.3d 1020, 1025. We note too Appellant did not preserve his current Confrontation Clause challenge to the admission of State's Exhibit 38. Appellant raised numerous objections on state law grounds to this evidence at the pre-trial hearing. Appellant renewed these same objections at trial. At no point below did Appellant assert a claim that the admission of State's Exhibit 38 was a constitutional violation. Appellant has therefore waived review of his constitutional claim for all but plain error. Miller v. State, 2013 OK CR 11, ¶ 104, 313 P.3d 934, 971.
¶39 Appellant fails to show plain error. The Sixth Amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause has been extended to the States through the Fourteenth Amendment for over fifty years. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1706-07, 95 L. Ed. 2d 176 (1987) (citing Pointer v. Texas, 380 U.S. 400, 404, 406-07, 85 S. Ct. 1065, 1068, 1069-70, 13 L. Ed. 2d 923 (1965)). In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court held that under the Sixth Amendment, testimonial out-of-court statements may be admitted against the accused in a criminal trial only 1) when the declarant is unavailable and 2) the defendant has had a previous opportunity to cross-examine the declarant. Id., 541 U.S. at 51, 68, 124 S. Ct. at 1364, 1374.
¶40 "Statements not offered to prove the truth of the matter asserted are generally admissible." Primeaux v. State, 2004 OK CR 16, ¶ 39, 88 P.3d 893, 902. Further, the Supreme Court has held that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Crawford, 541 U.S. at 59-60 n.9, 124 S. Ct. at 1369 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985)); Andrew v. State, 2007 OK CR 23, ¶ 31, 164 P.3d 176, 189.
¶41 In the present case, assuming arguendo the text message was offered to prove the truth of the matter asserted, Appellant's Sixth Amendment claim fails because the victim's text message to Appellant was nontestimonial. Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006) (only testimonial statements "cause the declarant to be a 'witness' within the meaning of the Confrontation Clause"); See also Michigan v. Bryant, 562 U.S. 344, 354, 131 S. Ct. 1143, 1153, 179 L. Ed. 2d 93 (2011) (noting that Crawford limited the Confrontation Clause's reach to testimonial statements); Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct. 1173, 1183, 167 L. Ed. 2d 1 (2007) (the Confrontation Clause has no application to out-of-court nontestimonial statements under Crawford).
¶42 The victim's text message to Appellant was not made in the context of a police interview. Nor was it made in response to police questioning. See Crawford, 541 U.S. at 51, 68, 124 S. Ct. at 1364, 1374. It is an informal three-sentence message, riddled with spelling errors, which on its face appears to be a threat to Appellant. There is no evidence suggesting the message was written so that it could be used later as evidence in a formal court proceeding, let alone that the primary purpose of the message was to create an out-of-court substitute for trial testimony. See Ohio v. Clark, __U.S.__, 135 S. Ct. 2173, 2181, 192 L. Ed. 2d 306 (2015). Rather, the content and circumstances in which the text message was sent shows it was simply an informal message sent by the victim through her cell phone to Appellant's cell phone the night before her murder and was never disclosed to third parties. Under the total circumstances, State's Exhibit 38 was unquestionably nontestimonial and, thus, not subject to the Confrontation Clause. See Clark, 135 S. Ct. at 2180, 2182 (the informality of the situation in which the statement was made is a relevant factor in determining whether it was testimonial or nontestimonial); ("Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers."). The statements at issue resemble (if not typify) the casual remark to an acquaintance Crawford said was not testimonial, Crawford, 541 U.S. at 51, 124 S. Ct. at 1364, as well as the "[s]tatements to friends and neighbors about abuse and intimidation" the Court likewise held in Giles v. California 554 U.S. 353, 376, 128 S. Ct. 2678, 2692-93, 171 L. Ed. 2d 488 (2008) were not subject to the Confrontation Clause. Thus, there is no constitutional error arising from the admission of State's Exhibit 38 and, thus, no plain error. Frederick, 2017 OK CR 12, ¶ 14, 400 P.3d at 800 ("Finding no error, we find no plain error.").
¶43 There remains the matter of the specific basis for admissibility of the text message under state evidence rules again assuming arguendo it was hearsay. Bryant, 562 U.S. at 358-59, 131 S. Ct. at 1155 ("when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony . . . the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause."). This issue caused considerable confusion below. Appellant maintains on appeal that State's Exhibit 38 was inadmissible hearsay.
¶44 In making this determination, it is helpful to realize that the text message itself is actually composed of three separate sentences. The first two sentences ("It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic].") were unquestionably admissible hearsay under the state of mind exception to indicate the declarant's intent toward future conduct and as a direct statement of her state of mind. 12 O.S.2011, § 2803(3) ("A statement of the declarant's then existing state of mind . . . such as intent, plan, motive, design, mental feeling . . ." is not excluded by the hearsay rule). See Frederick v. State, 2001 OK CR 34, ¶ 98, 37 P.3d 908, 935; Davis v. State, 1983 OK CR 57, ¶ 48, 665 P.2d 1186, 1198.
¶45 The third and final sentence of the text message ("Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday") was also arguably admissible under the state of mind exception. 12 O.S.2011, § 2803(3). We have held in domestic homicide cases that "[a] victim's hearsay statements describing threats and beatings are admissible to show the victim's state of mind and indicate fear of a defendant . . . evidence of prior threats, assaults, and battery on a victim is proper to show the victim's state of mind[.]" Hooper v. State, 1997 OK CR 64, ¶ 28, 947 P.2d 1090, 1102. True, Section 2803(3) expressly disallows the admission of "a statement of memory or belief to prove the fact remembered or believed[.]" Consistent with this provision, our cases have expressly distinguished between admissible evidence of prior threats, assaults, and battery on a victim showing the victim's state of mind from "a specific description of a defendant's actions" such as grabbing a gun or pulling the phone out of the wall which we have deemed inadmissible. Hooper, 1997 OK CR 64, ¶ 28, 947 P.2d at 1102. Cf. Andrew v. State, 2007 OK CR 23, ¶ 30, 164 P.3d at 189 (victim's recorded antecedent declaration to Prudential Insurance representatives of his belief that his wife and her lover tried to kill him by cutting the brake lines to his car was admissible under the state of mind exception to show victim's fear and to provide motive); Lamb v. State, 1988 OK CR 296, ¶¶ 7-8, 767 P.2d 887, 890 (testimony by witnesses that murder victim told them that the defendant, her husband, had previously committed battery on her, had threatened her and that she was afraid of him admissible under state of mind exception).
¶46 We need not reach this issue however because assuming arguendo error, admission of the third sentence in the text message was nonetheless harmless. The properly-admitted portion of the text message, combined with the domestic violence evidence introduced by the State during the trial's first stage, constituted strong evidence identifying Appellant as the perpetrator of this previous attack and showing motive for the killing. Moreover, the videotape of the killing itself represented overwhelming evidence demonstrating Appellant's responsibility for the victim's death and that the murder was committed with malice aforethought. Under the total circumstances, any imaginable error from admission of the third sentence in the text message was harmless and did not contribute to the verdict or sentence given the strong evidence against Appellant. Proposition III is denied. 20 O.S.2011, § 3001.1.
¶47 In Proposition IV, Appellant complains that the trial court prevented him from presenting a defense by disallowing questions to defense witnesses Rico Wilson and Eric Wilson as to whether Appellant made any threats towards the victim in the days leading up to the murder or had otherwise mentioned receiving the text message discussed in Proposition III. Rico Wilson is Appellant's brother. Rico testified that he saw Appellant standing in front of his mother's apartment around 9:30 or 10:00 p.m. the night before the murder and that Appellant appeared to be high on drugs at the time. Rico testified too that Appellant was "probably" drinking then because Appellant had been drinking earlier in the day. Rico saw Appellant several times previously during the week leading up to the murder. Rico saw Appellant snorting cocaine and using PCP earlier in the week.
¶48 Eric Wilson is Appellant's cousin. Eric testified he was with Appellant and Rico on March 13--14, 2012, and when they were not looking for employment, he and Appellant were drinking and getting high on drugs. Appellant stayed at Eric's apartment the evening of March 14 through the morning of March 15. Eric testified that he and Appellant began using drugs early in the morning on March 15 and Appellant continued drinking and using drugs throughout the afternoon and evening hours of March 15. According to Eric, Appellant left around 3:00 or 4:00 a.m. on March 16--just hours before the murder.
¶49 Prior to this testimony, defense counsel stated her intent during an in camera hearing to ask Rico and Eric on direct whether Appellant expressed any desire to harm the victim or otherwise expressed concern about getting a text message from her. Defense counsel argued that, with this testimony, she wanted to elicit that Appellant did not make or express any threats towards the victim during the five day period Rico and Eric reported being with Appellant. This was to be part of defense counsel's strategy to counter the State's motive evidence relating to the text message. The prosecutor objected on grounds that any such testimony would be inadmissible self-serving hearsay. The trial court sustained the prosecutor's objection and ruled she would not allow this type of testimony. Rico and Eric testified the next day.
¶50 Now on appeal, Appellant claims the trial court violated his rights to a fundamentally fair trial and to present a defense with this ruling. Appellant argues the State "was allowed to take an isolated text message and build an entire case around it[ ]" whereas the defense was prohibited from challenging that evidence.
¶51 We review the district court's evidentiary rulings for abuse of discretion. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 14, 241 P.3d 214, 224. Notably, Appellant did not raise the trial court's earlier ruling when either witness testified the next day at trial. Nor did Appellant make an offer of proof to the judge concerning what testimony he wanted to present. "After a motion in limine is sustained, the party seeking to introduce the evidence must make an offer of proof at trial. This affords the trial court an opportunity to make a final ruling on the evidence." Id., 2010 OK CR 23, ¶ 86, 241 P.3d at 240 (internal citations omitted). Failure to follow this procedure on a motion in limine waives review on appeal of all but plain error. Id.
¶52 Appellant fails to show plain error. The rules of evidence may not be used to arbitrarily impinge on the defendant's right to present competent evidence in his defense. Pavatt v. State, 2007 OK CR 19, ¶ 42, 159 P.3d 272, 286 (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297 (1973)). However, "[w]hether Appellant was denied the right to present a defense ultimately turns on whether the evidence at his disposal was admissible." Id., 2007 OK CR 19, ¶ 45, 159 P.3d at 287.
¶53 Assuming arguendo the trial court abused its discretion in disallowing this particular evidence, Appellant fails to show plain error. We have held:
To establish a violation of . . . due process, a defendant must show a denial of fundamental fairness. . . . It is the materiality of the excluded evidence to the presentation of the defense that determines whether a petitioner has been deprived of a fundamentally fair trial. Evidence is material if its suppression might have affected the outcome. In other words, material evidence is that which is exculpatory--evidence that if admitted would create reasonable doubt that did not exist without the evidence.
Primeaux, 2004 OK CR 16, ¶ 49, 88 P.3d at 903-04 (quoting Ellis v. Mullin, 326 F.3d 1122, 1128 (10th Cir. 2002)). In the present case, Appellant's proposed evidence (we assume arguendo Eric and Rico would have testified that Appellant had no reaction to the text message or simply did not mention it and that he did not threaten the victim) would at best call into question the State's theory of the motive for the murder. However, it does not refute the overwhelming evidence presented showing Appellant's guilt for Tia Bloomer's murder, including the surveillance tape showing him repeatedly stabbing the victim; eyewitness testimony describing this attack and the efforts needed to stop Appellant's attack; testimony concerning the victim's injuries; and Appellant's videotaped interview describing how he came to be in the bus station with a knife that morning along with his confession to repeatedly stabbing Tia and the reasons why--namely, his sad mental state upon their breakup as a couple. The defense was able to elicit considerable evidence from Eric and Rico regarding Appellant's extended drug binge over the five day time span leading up to the murder. Rico testified concerning Appellant's emotional condition over the loss of his relationship with the victim. Eric described Appellant's relationship with Tia the week before the murder as "off and on" and "they just always have been off and on."
¶54 We fail to see how the additional evidence championed on appeal might have affected the outcome of the first stage, let alone called into question the State's considerable evidence showing malice aforethought. 21 O.S.2011, § 701.7(A) ("Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof."). "Premeditation sufficient to constitute murder may be formed in an instant or it may be formed instantaneously as the killing is being committed." Davis, 2011 OK CR 29, ¶ 76, 268 P.3d at 111. The jury too may rely upon circumstantial evidence to ascertain a person's intent at the time of the homicidal act. Id. In this sense, it matters little for first stage purposes whether the motive behind Appellant's murder of the victim was his deep sadness over the end of the relationship or, instead, was an effort to stop Tia from identifying him to police as her attacker during the previous assault. The overwhelming evidence at trial shows the killing was committed with malice aforethought as alleged by the State even if the jury found the State's theory of motive unpersuasive. Thus, under the total circumstances, Appellant fails to show he was deprived of a fundamentally fair trial through the denial of critical defense evidence during the guilt stage of his trial. Appellant therefore fails to show a plain or obvious error affecting his substantial rights. Proposition IV is denied.
¶55 In Proposition V, Appellant challenges the admission of what he describes as "numerous gruesome photographs" during guilt stage. Specifically, Appellant challenges State's Exhibits 21--36, 41--49 and 51. Appellant argues these photographs were unnecessary because there was no dispute that he stabbed the victim to death. Appellant argues these photographs "serve[d] no legitimate purpose other than to inflame the passion of the jury." Appellant tells us the photographs were more prejudicial than probative, unduly gruesome and cumulative, and deprived him of a fair and reliable trial and sentencing proceeding.
¶56 We review the trial court's admission of photographic evidence for an abuse of discretion. Photographic exhibits are subject to the same relevancy and unfair prejudice analysis as any other piece of evidence. 12 O.S.2011, §§ 2401-2403. As we have held:
Photographs may be probative of the nature and location of wounds; may corroborate the testimony of witnesses, including the medical examiner; and may show the nature of the crime scene. Gruesome crimes make for gruesome photographs, but the issue is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or needless presentation of cumulative evidence.
Martinez v. State, 2016 OK CR 3, ¶ 46, 371 P.3d 1100, 1112-13, cert. denied, __U.S.__, 137 S. Ct. 386, 196 L. Ed. 2d 304 (2016) (internal citations omitted).
¶57 Appellant's challenge to State's Exhibits 21--26, which he describes as photographs of the victim's bloody clothes, is procedurally defective and does not comply with our Rules. Appellant fails to provide citations to the record showing where these particular photographs were admitted into evidence. These photographs are not referenced on any of the transcript pages cited by Appellant in this claim. Hence, this aspect of his Proposition V claim is waived from appellate review. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018); Logsdon v. State, 2010 OK CR 7, ¶ 41, 231 P.3d 1156, 1169-70.
¶58 State's Exhibit 27 depicts the victim's face showing the redness and heavy congestion in the victim's eyes observed by the medical examiner during the autopsy. Appellant preserved his objection to this photograph by making a contemporaneous objection which the trial court overruled.
¶59 State's Exhibits 28--36 depict close-up views of the various stab wounds to the victim's head, neck, back, torso and right hand. Appellant registered a contemporaneous objection to these photographs at trial but cited only his previously-stated objections. The trial court overruled this objection. From the record presented, we cannot ascertain whether Appellant even objected to these particular photographs during the in camera hearing, let alone what grounds may have been asserted.5 Appellant has therefore waived all but plain error review of State's Exhibits 28--36. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693 (failure to object with specificity to errors alleged to have occurred at trial waives review on appeal of all but plain error).
¶60 Appellant challenges too State's Exhibits 41--46. Although neither party seems to notice, the record shows State's Exhibits 44 and 45 were not published to the jury and ultimately were withdrawn by the prosecutor at the conclusion of the medical examiner's testimony. State's Exhibits 41, 42, 43 and 46 depict an overview of the constellation of injuries observed by the medical examiner on the right side of the victim's head and neck, the right side of her throat and jaw, her upper back and neck as well as to the right side of her body. Appellant objected to these photographs, thus preserving these challenges for appeal.
¶61 State's Exhibits 47 and 48 are photographs depicting the directionality of the victim's stab wounds using wooden Q-tip applicators placed inside each wound. State's Exhibit 49 is a photograph of the victim's hand with a thin metal probe inserted to depict the directionality of the stab wound through the full thickness of the hand. Defense counsel objected to these photographs, thus preserving these challenges for our review.
¶62 State's Exhibit 51 depicts an extracted portion of the ribs from the victim's right side showing where the knife passed and cut through the ribs. Appellant also objected to this photograph, thus preserving this claim for appellate review.
¶63 We find no abuse of discretion from the trial court's admission of these photographs. The photographs depicted the victim's injuries, illustrated the testimony of the medical examiner, and demonstrated the directionality of the various stab wounds. The photographs were relevant to numerous trial issues in the case including, most notably, proving deliberate intent to kill and, during penalty phase, conscious physical suffering to show the murder was especially heinous, atrocious or cruel. See Proposition XIII. These photographs were not unfairly prejudicial considered both individually and collectively. Nor were they cumulative. "[T]he State was not required to downplay the violence involved or its repercussions." Jones v. State, 2009 OK CR 1, ¶ 57, 201 P.3d 869, 885.
¶64 Appellant fails to show error from the admission of any of these photographs (or, for that matter, plain error in those instances where Appellant did not preserve his claim below). Moreover, under the total circumstances, Appellant fails to show he was denied a fundamentally fair trial in violation of due process during either stage of his capital murder trial based on the admission of these photographs. Relief is thus denied for Proposition V.
JURY INSTRUCTIONS
¶65 In Proposition VI, Appellant complains that the trial court violated his due process rights by failing to instruct the jury on the lesser included offenses of second degree depraved mind murder and first degree heat of passion manslaughter. In Proposition VII, Appellant complains that the trial court erred in failing to give voluntary intoxication instructions.
¶66 Appellant requested lesser-included offense instructions on second degree murder and first degree manslaughter at trial, thus preserving these issues for appellate review. The trial court overruled these requests and provided no lesser included offense instructions. "This Court has held that it is the duty of the trial court to determine as a matter of law whether the evidence is sufficient to justify the submission of instructions on a lesser included offense. If there is a doubt, the court should submit the matter to the jury." Rumbo v. State, 1988 OK CR 27, ¶ 3, 750 P.2d 1132, 1132. In a first degree murder case, the trial court should instruct on any lesser form of homicide supported by the evidence. Bland v. State, 2000 OK CR 11, ¶ 54, 4 P.3d 702, 719. We require prima facie evidence of the lesser included offense to support giving a lesser included instruction. Davis, 2011 OK CR 29, ¶ 101, 268 P.3d at 116. "Prima facie evidence of a lesser included offense is that evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater." Id.
¶67 In capital cases, the Supreme Court has held that a death sentence may not constitutionally be imposed unless the jury is permitted to consider a verdict of guilt as to a lesser-included non-capital offense which is supported by the evidence. Beck v. Alabama, 447 U.S. 625, 633-45, 100 S. Ct. 2382, 2387-94, 65 L. Ed. 2d 392 (1980). See Davis, 2011 OK CR 29, ¶ 117, 268 P.3d at 119. Beck does not, however, require the trial court to instruct on offenses that are not lesser included offenses of the charged offense under state law. Hopkins v. Reeves, 524 U.S. 88, 90-91, 118 S. Ct. 1895, 1898, 141 L. Ed. 2d 76 (1998). The Court's "fundamental concern" in Beck "was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all." Schad v. Arizona, 501 U.S. 624, 646, 111 S. Ct. 2491, 2504, 115 L. Ed. 2d 555 (1991).
¶68 Homicide is murder in the second degree "[w]hen perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual[.]" 21 O.S.2011, § 701.8. The record fails to contain any evidence showing Appellant acted without any premeditated design to effect death. Appellant stabbed the victim seven (7) times in the head, neck, back, torso and hand. Numerous superficial cuts too were observed on the victim's head and neck and were consistent with having been made by a serrated blade.
¶69 In his videotaped interview, Appellant admitted grabbing the victim, holding on to her and stabbing her repeatedly. Appellant was separated from the victim only when a security guard sprayed him in the face with pepper spray. Appellant said that he brought the kitchen knife from home so that if he saw Tia, he could stab her. Appellant said too that he and Tia had been arguing about his support of their child and that the relationship between them recently ended. Appellant admitted being angry and depressed when he stabbed the victim. "Nothing in these facts suggests anything but a design to effect the death of one specific person." Charm v. State, 1996 OK CR 40, ¶ 10, 924 P.2d 754, 760. All things considered, there was insufficient evidence presented to allow a jury rationally to find the accused guilty of second degree depraved mind murder and acquit him of first degree malice aforethought murder. See Boyd v. State, 1992 OK CR 40, ¶¶ 5, 11, 839 P.2d 1363, 1366, 1367.
¶70 Appellant's claimed entitlement to instructions on first degree heat of passion manslaughter also lacks merit. Under Oklahoma law, homicide is manslaughter in the first degree "[w]hen perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide." 21 O.S.2011, § 711(2). "The elements of heat of passion are 1) adequate provocation; 2) a passion or emotion such as fear, terror, anger, rage or resentment; 3) homicide occurred while the passion still existed and before a reasonable opportunity for the passion to cool; and 4) a causal connection between the provocation, passion and homicide." Cipriano v. State, 2001 OK CR 25, ¶ 16, 32 P.3d 869, 874. "The question is whether, in addition to evidence of intent, there was evidence that Appellant killed the deceased with adequate provocation, in a heat of passion, without the design to effect death." Id.
¶71 The evidence presented at trial was insufficient to show adequate provocation. The evidence shows that when Appellant confronted the victim in the bus station, she told him simply to leave her alone. At that point, Appellant began stabbing the victim. This is insufficient evidence to show adequate provocation. See Washington v. State, 1999 OK CR 22, ¶ 13 n.4, 989 P.2d 960, 968 n.4 ("Mere words alone, or threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation."); Grindstaff v. State, 1946 OK CR 12, 82 Okl. Cr. 31, 40, 165 P.2d 846, 850 ("mere words or threats, however opprobrious or violent, constitute in law no adequate provocation for passion such as will reduce a homicide from murder to manslaughter."). See also Jones v. State, 2006 OK CR 17, ¶ 7 n.4, 134 P.3d 150, 154 n.4 ("Adequate provocation requires personal violence by the deceased likely to cause pain, bloodshed or bodily harm."); OUJI-CR (2d) 4-98 (definition of adequate provocation).6
¶72 Additionally, as discussed earlier, there was insufficient record evidence showing Appellant killed the victim with no design to effect death. Rather, the evidence uniformly showed Appellant killed the victim with malice aforethought, i.e., the deliberate intention to take away the life of a human being. 21 O.S.Supp.2012, § 701.7(A). Lesser-included instructions on first degree heat of passion manslaughter were thus unwarranted. Black, 2001 OK CR 5, ¶ 48, 21 P.3d at 1066 ("the Oklahoma definitions of malice and heat of passion show they cannot co-exist[.]"). All things considered, insufficient evidence was presented to support instructions on first degree heat of passion manslaughter. Proposition VI is denied.
¶73 In Proposition VII, Appellant complains that the trial court's failure to instruct on voluntary intoxication was reversible error. We review a trial court's refusal to instruct on the defense of voluntary intoxication for abuse of discretion. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 11, 241 P.3d at 223. Appellant requested an instruction on voluntary intoxication and, after an extended discussion, the trial court denied this request. He has therefore preserved this claim for our review.
¶74 "Before a voluntary intoxication instruction is given, the evidence must be sufficient to establish a prima facie case that the defendant was intoxicated to the point he was unable to form deliberate intent to kill." Id., 2010 OK CR 23, ¶ 11, 241 P.3d at 223. We have held that:
Prima facie evidence is evidence that is "good and sufficient on its face," i.e., "sufficient to establish a given fact, or the group or chain of facts constituting the defendant's claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports." Black's Law Dictionary 1190 (6th ed. 1990); Ball v. State, 2007 OK CR 42, ¶ 29 n.4, 173 P.3d 81, 90 n.4. Under our law, the requirements for establishing a voluntary intoxication defense are: (1) the defendant was intoxicated; and (2) he was "so utterly intoxicated, that his mental powers [were] overcome, rendering it impossible for [him] to form the specific criminal intent . . . element of the crime" (emphasis added). Simpson v. State, 2010 OK CR 6, ¶ 28, 230 P.3d 888, 899; see also McElmurry v. State, 2002 OK CR 40, ¶ 72, 60 P.3d 4, 23.
Cuesta-Rodriguez v. State, 2011 OK CR 4, ¶ 7, 247 P.3d 1192, 1195 (denying rehearing).
¶75 The closest evidence in this case of Appellant's purported intoxication at the time of the murder was from Eric Wilson. Eric testified that starting at 9:00 p.m. on March 15, he and Appellant were drinking gin at Eric's apartment. Eric testified Appellant drank "a lot" of gin that night. Eric testified that he and Appellant stayed up into the early morning hours of March 16 snorting powder cocaine and drinking beer. Eric testified that he did not see Appellant using PCP at any point. Eric last saw Appellant around 3:00 or 4:00 a.m. on March 16 when Appellant left.7
¶76 In his videotaped interview, Appellant did not indicate that he was under the influence of anything when he murdered the victim. Instead, Appellant calmly described his reason for stabbing the victim, i.e., that he was depressed and angry over the breakup. Detective Benavides, who commenced the interview within roughly two hours after Appellant's arrest, did not observe anything in his interactions with Appellant suggesting intoxication. Neither Detective Benavides nor any of the officers at the bus station who interacted with Appellant observed any of the tell-tale signs and behaviors they typically associated with PCP use based on their training and experience. Instead, Appellant was very calm and matter-of-fact. Appellant was able to communicate with the officers at the bus station and, a short time later, with a doctor at the emergency room concerning his injuries. As Detective Benavides reviewed the Miranda warning with Appellant at the beginning of the interview, Appellant followed along, responded to the detective's questions and appeared to understand.
¶77 During the videotaped interview, Appellant provided a full account of how he came to be at the bus station and why he stabbed the victim. Appellant is seen on the videotape responding appropriately to Detective Benavides's questions. Appellant gave a detailed description of taking a knife from home with him to the bus station, confronting the victim and then stabbing her repeatedly inside the terminal. Appellant never claimed during the interview that he was high or intoxicated or that drug or alcohol use was somehow responsible for his actions. Instead, Appellant calmly--and at times, tearfully--explained his actions as being fueled by the depression and anger he felt over Tia's termination of their relationship. Appellant asked if the detective would contact his mother, asked about the victim's condition and expressed his belief that he would be killed in jail for what he had done to Tia. Appellant too interacted with the detectives during the interview to facilitate their taking of buccal swabs for later testing.
¶78 We have described the test for obtaining voluntary intoxication instructions as "a high standard whose threshold cannot be met simply by presenting conflicting evidence of a defendant's level of intoxication." Cuesta-Rodriguez, 2011 OK CR 4, ¶ 7, 247 P.3d at 1195. The evidence in this case falls well short of what is required for voluntary intoxication instructions under our law. In this regard, we have held that:
In a case like the current one, where the defendant provides a detailed description of the circumstances and events leading up to and including his own act(s) of killing the victim, the very fact that the defendant was aware of his circumstances and able to recognize what was happening at the time suggests that he will not be able to make even a prima facie showing that he was so intoxicated that it was impossible for him to have formed a specific intent to kill his victim.
Id., 2011 OK CR 4, ¶ 10, 247 P.3d at 1196.
¶79 Here, the evidence shows at best Appellant used drugs and drank gin in the hours leading up to the killing. Nonetheless, Appellant provided a detailed, lucid account of what happened before, during and after the killing of his ex-girlfriend. And his behavior and interaction with the police after being arrested does not suggest intoxication of any kind. Under the total circumstances, an instruction on voluntary intoxication was unwarranted. See Bland, 2000 OK CR 11, ¶ 51, 4 P.3d at 718 (voluntary intoxication instructions unwarranted where, despite evidence showing appellant had ingested drugs the day of the murder, appellant provided a detailed account of the circumstances of the murder in his testimony); Jackson, 1998 OK CR 39, ¶¶ 69-70, 964 P.2d at 892 (voluntary intoxication instructions unwarranted where appellant testified he was aware of things going on around him just before and just after the murder). Proposition VII is denied.
JUROR MISCONDUCT
¶80 In Proposition VIII, Appellant complains that the trial court abused its discretion in failing to remove Juror R.G. for misconduct during the first stage of trial based on her purported discussion of the case with Juror C.E., who was removed. Appellant also complains that the trial court abused its discretion in replacing C.E. with Alternate Juror C.S. as the ninth juror on the panel. Appellant argues the trial court should have replaced C.E. with the other available alternate juror because C.S. too was implicated in the juror misconduct.
¶81 The crux of Appellant's Proposition VIII claim is that "[t]he record shows by clear and convincing evidence that [C.E.] and [R.G.] engaged in a conversation suggesting that they did not believe the defense witnesses who appeared in orange." The bedrock constitutional principle at issue here is Appellant's due process right to "a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961). See U.S. Const. amends. VI and XIV; Okla. Const. art. 2, § 20. Towards that end, trial judges in Oklahoma are required to instruct jurors "that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the case is finally submitted to them." 12 O.S.2011, § 581.
¶82 In the present case, the trial court repeatedly admonished the jury not to discuss the case before releasing the jurors for mid-trial and evening recesses. The record shows Marva Banks, an assistant public defender not involved with Appellant's case, informed the trial court on the fifth day of trial that she heard three jurors (two African American males and a woman with blonde hair) the previous evening discussing witness testimony in the parking garage while they were all waiting for the elevator. Banks testified that two jurors were standing in front of her waiting on the elevator in the parking garage when a third juror approached and said "I've never seen so much orange." At that point, the other two jurors started laughing and one said "Yeah, there were so many family members that showed up in orange and it didn't help." Banks said the jurors' reference to "orange" was to jail orange. According to Banks, one of the jurors asked "where was his mother? That would have helped."
¶83 Notably, the last three witnesses before this purported incident were Eric Wilson, Roy Tryon, and Rico Wilson--Appellant's cousin, father and brother respectively. All three of these witnesses were in custody, and wearing orange jail garb, when they took the witness stand. Based on Banks's description of the three jurors, the trial court and parties questioned Juror C.E., Juror R.G. and Alternate Juror C.S. When R.G. was brought in for questioning, Banks stated R.G. was not the female juror involved. R.G. was then returned to the jury room without being questioned. Juror C.E. was brought in next and admitted saying "I couldn't believe there was [sic] so many people in orange coming today." However, C.E. denied saying this on the way to the elevator or in the parking lot. Instead, he claimed to have made this comment upstairs in the courthouse the day before when the jurors were leaving as one of the witnesses in orange was also getting on an elevator to leave. C.E. testified that the man in orange had a "weird" stare.
¶84 When asked by Judge Truong whether, when C.E. left the day before, he rode with anyone in the elevator on the way to his car, C.E. responded that he rode with Juror R.G. C.E. explained that he was waiting at the elevator with R.G. and then rode the elevator up with her and some other people. C.E. denied discussing anything about the case. When asked whether anyone mentioned too many people in orange or said they wished the mother was there, C.E. replied "[n]o, not during there." C.E. then immediately corrected himself and recalled that he "did say I wish the mother would have got up here."
¶85 In follow-up questioning, the prosecutor asked whether C.E. had predetermined the outcome of the case; C.E. said no. When asked to explain what precipitated the comment about people being in orange, C.E. said it was because of the behavior of the person in orange. C.E. acknowledged too that the defense had no burden of proof and had no obligation to present any witnesses. When asked by the defense with whom he was discussing all the orange, C.E. responded "I had just said it out loud . . . I just said that was a lot of orange." When asked whether there was discussion to the effect that all the orange didn't help the client, C.E. denied having any such conversation or ever saying it. However, one of the other jurors--he believed Juror J.L.--in response to his comment about all the orange told him "shh." Additionally, C.E. said he made the comment about wishing they had heard from the mother to Juror R.G. When C.E. made the comment, he said R.G. "just didn't say nothing. She just kind of looked at me and just acknowledged that I said something and that was it." C.E. denied that any other male jurors were present.
¶86 Alternate Juror C.S. did not recall walking the night before with Jurors C.E. and R.G. to the parking garage. C.S. denied saying to the other jurors anything about having made up his mind on the case. Nor had he talked to the other jurors about the case. C.S. also did not remember hearing the other jurors talk about the case. C.S. testified that he had not made up his mind on the case because he had not yet heard all the evidence.
¶87 Banks never identified C.S. as one of the people involved in the conversation with C.E. At the conclusion of C.S.'s testimony, defense counsel stated that Banks thought the other male involved in the conversation may have been Juror Q.A. The prosecutor noted too that Banks gestured in a manner indicating she was not sure it was C.S. when he first entered the room. When Q.A. was questioned, he testified C.E. did walk ahead of him on the way to the parking garage the night before. Q.A. did not, however, hear C.E. talking. Nor had he heard any of the jurors discussing the case or indicating that they had reached a verdict. Q.A. denied doing the same. When asked by defense counsel whether Q.A. heard any of the jurors discussing what they saw yesterday as they were leaving, Q.A. responded that he only saw "some shaking of heads, but no discussion." Q.A. clarified that no one was shaking their heads to each other but only in "self-contemplation" just as some had done when they were sitting in the jury box listening to the testimony. Q.A. clarified no one was talking about the case or deliberating in any way when they were shaking their heads.
¶88 Juror R.G. was the last juror questioned. R.G. denied discussing the case with anyone on the jury. Nor had R.G. heard other jurors talking about the case in her presence. R.G. admitted using the elevators in the parking garage the previous evening but denied hearing anyone talking about orange. R.G. could not remember other jurors being around her as she walked to the parking garage. R.G. explained she "want[s] to leave here as soon as possible when I'm done at the end of the day. I don't look or talk to anybody. I just want to get the heck out of here." R.G. testified the trial had been "very intense" and she "just want[s] to leave" after court each day. Hence, R.G. could not recall who she was with yesterday as she left. Nor did she hear any conversations.
¶89 The parties agreed to remove Juror C.E. based on his violation of the court's admonishment not to talk about the case. The trial court granted that request. C.E. was replaced by Alternate Juror C.S., the first alternate juror. Defense counsel objected because she said Banks thought C.S. looked closer to the man she saw than Juror Q.A. Defense counsel urged that the second alternate juror replace C.E. instead. Defense counsel also requested R.G. be removed from the panel. The trial court overruled Appellant's objection as to C.S. because he heard nothing and had not discussed the case with anyone. The trial court likewise denied Appellant's challenge to R.G., concluding that even if C.E. had been talking to R.G., her testimony makes clear she was not paying any attention. The trial court observed R.G.'s testimony that all she cared about was going home at the time and noted too that there was no evidence C.E. and R.G. had been discussing anything. Unsuccessful in his quest to remove C.S. and R.G., Appellant requested a mistrial which was also denied.
¶90 In Jones v. State, 2006 OK CR 5, 128 P.3d 521, we found no abuse of discretion from the trial court's refusal to remove a juror mid-trial who expressed in the presence of another juror an opinion as to the appropriate punishment. The trial court made inquiry when another juror reported hearing Juror Y say "that they should place him in a box in the ground for what he has done." Id., 2006 OK CR 5, ¶ 19 n.3, 128 P.3d at 535 n.3. This indicated to the reporting juror that Juror Y had already made up his mind on the issue of punishment. Id., 2006 OK CR 5, ¶ 19, 128 P.3d at 535. When questioned by the trial court, Juror Y denied making the statement but then later admitted he "could have said that, yes." Id. Juror Y also admitted having formed a partial opinion on what he thought should be the appropriate punishment but said he was waiting to hear the rest of the evidence. When the reporting juror was questioned again, she indicated hearing only part of the statement and admitted she did not know if it was related to the case. All of the other jurors denied hearing another juror express an opinion as to the appropriate penalty or punishment. The trial court denied defense counsel's request to further question Juror Y and to excuse him for cause. Id.
¶91 We find our previous holding in Jones applies here:
A claim of juror misconduct before a criminal case is submitted to a jury must be established by clear and convincing evidence. Glasgow v. State, 1962 OK CR 41, ¶ 16, 370 P.3d 933, 936; Pennington v. State, 1995 OK CR 79, ¶ 18, 913 P.2d 1356, 1363. Jones must show actual prejudice from any jury misconduct and "defense counsel's mere speculation and surmise is insufficient upon which to cause reversal." Woodruff v. State, 1993 OK CR 7, ¶ 13, 846 P.2d 1124, 1132, quoting Chatham v. State, 1986 OK CR 2, ¶ 7, 712, P.2d 69, 71. The trial court personally observed the jurors and their responses. We will not disturb its refusal to allow additional questioning and/or excuse the allegedly offending juror for misconduct absent an abuse of discretion. Teafatiller v. State, 1987 OK CR 141, ¶ 18, 739 P.2d 1009, 1012. The trial court did not abuse its discretion. Jones has failed to show that any of his alleged misconduct was prejudicial; therefore, this proposition fails.
Id., 2006 OK CR 5, ¶ 20, 128 P.3d at 535.
¶92 In the present case, the trial court excused C.E. in light of his admission that he did not follow the court's admonishment against not talking about the case. However, the trial court did not abuse its discretion in denying Appellant's request to strike C.S. and R.G., or to seat the second alternate instead of C.S. Appellant does little more on appeal than speculate and surmise that these two jurors engaged in misconduct. The record, on the other hand, supports the trial court's findings. Appellant fails to show by clear and convincing evidence these two jurors discussed the case with anyone, let alone had predetermined the case. Considering the deference we must afford the trial court in this context, we defer to the trial court's ruling on these issues. See Jackson v. State, 2006 OK CR 45, ¶ 11, 146 P.3d 1149, 1156 ("Whether a prospective juror is biased depends heavily on the trial court's appraisal of the juror's credibility and demeanor and often the basis for these credibility findings cannot be readily discerned from an appellate record."). The trial court did not abuse its discretion either in refusing to remove C.S. and R.G. or in denying Appellant's related motion for mistrial. The removal of C.E. cured any possible prejudice arising from his admitted misconduct. Knighton v. State, 1996 OK CR 2, ¶¶ 64-65, 912 P.2d 878, 894 (a defense motion for mistrial is left to the court's discretion and is warranted only when an event at trial results in a miscarriage of justice or constitutes an irreparable and substantial violation of a defendant's constitutional or statutory rights). Proposition VIII is denied.
SENTENCING ISSUES
¶93 In Proposition IX, Appellant complains that the trial court impermissibly restricted his presentation of mitigating circumstances. Appellant first challenges the limitations placed on Dr. David Musick's testimony during penalty phase. Dr. Musick, a sociology professor, was presented by the defense as an expert witness to discuss the risk factors and events from Appellant's life history which impacted his development. This was offered to explain Appellant's pattern of illegal behavior culminating in his murder of Tia Bloomer. During this testimony, the trial court sustained a hearsay objection to Dr. Musick's regurgitation on his direct examination of hearsay statements by Appellant's mother concerning Roy Tryon's violent conduct using a knife against one of Sheryl Wilson's boyfriends. This testimony was offered to show the facts relied upon by Dr. Musick in formulating Appellant's life story which, in turn, was used to support his conclusions and opinions. The trial court admonished defense counsel that the witness "cannot testify to what other people told him" in presenting his expert's opinion.
¶94 On appeal, Appellant complains that the trial court's ruling violated his Eighth Amendment right to present relevant mitigating evidence. He also claims that the strict application of state evidence rules to disallow this particular evidence deprived him of due process. Appellant did not raise this claim in connection with the trial court's ruling, thus waiving all but plain error review on appeal. Brown v. State, 2008 OK CR 3, ¶ 11, 177 P.3d 577, 580 (failure to object at trial on grounds raised on appeal waives review of all but plain error). Appellant fails to show plain error.
¶95 "It is beyond dispute that mitigating evidence is critical to the sentencer in a capital case." Warner v. State, 2001 OK CR 11, ¶ 15, 29 P.3d 569, 575. Mitigating evidence is a necessary component of the individualized sentencing required in capital cases. One of the cardinal principles of the Supreme Court's Eighth Amendment jurisprudence is that a capital murder defendant must be given the opportunity to present relevant mitigating evidence for consideration by the jury. Tennard v. Dretke, 542 U.S. 274, 284, 124 S. Ct. 2562, 2570, 159 L. Ed. 2d 384 (2004); Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S. Ct. 869, 876-77, 71 L. Ed. 2d 1 (1982). The Eighth Amendment forbids imposition of a death sentence if the jury "is 'precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Smith v. Spisak, 558 U.S. 139, 144, 130 S. Ct. 676, 681-82, 175 L. Ed. 2d 595 (2010) (quoting Mills v. Maryland, 486 U.S. 367, 374, 108 S. Ct. 1860, 1865, 100 L. Ed. 2d 384 (1988)).
¶96 The trial court's ruling was based on state law, specifically, Title 12 O.S.Supp.2013, § 2703 and 12 O.S.2011, § 2705. Section 2703 provides that an expert witness may base an opinion on inadmissible facts or data so long as such facts or data are of the type reasonably relied upon by experts in the witness's field of expertise.8 "Under this rule, an expert may base an opinion solely on inadmissible hearsay." Cuesta-Rodriguez, 2010 OK CR 23, ¶ 39, 241 P.3d at 229. We have previously held that an expert witness may, consistent with 12 O.S.2011, § 2705, generally disclose on direct examination the facts or data underlying his opinion. Id.9 We found that "[t]he only limit placed on the disclosure of such information by this Court is that section 2705 cannot be used as 'a license to parade a mass of inadmissible evidence before the jury.'" Lewis v. State, 1998 OK CR 24, ¶ 19, 970 P.2d 1158, 1166-67 (quoting Sellers v. State, 1991 OK CR 41, ¶ 23, 809 P.2d 676, 685). However, since these decisions, the Legislature has amended Section 2703 to add that facts or data otherwise inadmissible "shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." 12 O.S.Supp.2013, § 2703. This amended version of Section 2703 was in force during Appellant's trial.
¶97 The trial court's limitation of Dr. Musick's testimony was driven by the compelling state interest of preventing a party from using an expert witness as a mere conduit to regurgitate large amounts of inadmissible and possibly unreliable hearsay. Appellant argues it was impossible for him to present a full social history to the jury in light of the trial court's limitation. The record, however, does not support this assertion. Appellant presented numerous first-hand accounts from several relatives and family members--including Sheryl Wilson and Roy Tryon--concerning the physical abuse and violence Roy inflicted on Appellant, Sheryl and Appellant's siblings as well as the turbulent, drug-fueled nature of Roy and Sheryl's relationship. Indeed, Roy admitted in his testimony to stabbing in front of the children a man whom he believed was Sheryl's boyfriend. Appellant presented mitigation evidence from the family witnesses concerning virtually every aspect of his life. This included first-hand accounts concerning Appellant's drug abuse; learning disabilities; educational background; prior incarcerations; prior head injuries; suicide attempts; family background; mental health treatment and institutionalization; prior incarcerations of his mother, father and siblings; gang involvement; the crowded conditions at the family home; the fact the family constantly moved; the non-stop drug activity at the family home; the routine absence of Appellant's mother from the family home while on multi-day drug binges; Appellant's mother buying drugs from Appellant and his brother; Sheryl's physical abuse of her children; Appellant's drug dealing; Appellant's love for his son; the nature of Appellant's relationship with the victim; and the nature of Appellant's relationship with his mother.
¶98 Dr. Musick's expert testimony was based in large part on the same first-hand accounts relayed through Appellant's family witnesses during penalty phase testimony. To be sure, Dr. Musick's opinions and conclusions were subject to extensive cross-examination and impeachment by the prosecutor, but we fail to see how this fact undermined Appellant's Eighth Amendment right to present relevant mitigating evidence--particularly in light of the large amount of mitigating evidence Appellant presented about every aspect of his life. Under these circumstances, Appellant was not deprived of his Eighth Amendment right to present relevant mitigating evidence based on the trial court's hearsay ruling. At best, the effect of the trial court's ruling was to disallow cumulative accounts by the expert witness that would needlessly prolong the trial. This was well within the trial court's discretion under the governing law. See Postelle v. State, 2011 OK CR 30, ¶ 74, 267 P.3d 114, 142. This aspect of Proposition IX is denied as there is no plain or obvious error affecting Appellant's substantial rights based on the trial court's ruling.
¶99 Appellant's complaint that the trial court violated his Eighth Amendment rights by disallowing mitigation testimony from Pamela Wilson, Appellant's aunt, concerning domestic violence between Appellant's parents which occurred before Appellant was born also lacks merit. In the challenged passage, Pamela Wilson testified on direct examination to the controlling nature of the relationship between Sheryl Wilson and Roy Tryon. When defense counsel asked whether Roy had ever become physical with Sheryl, the prosecutor asked to approach and a bench conference ensued. The prosecutor objected to the form of the question, arguing the question would allow testimony about incidents of domestic abuse between the couple which occurred before Appellant was born. The prosecutor urged that the defense be required to limit its inquiry to those instances of domestic violence which Appellant personally observed because "this is a trial about [Appellant] not about Roy and Sheryl's relationship. So it's only relevant if somehow that behavior morphed or shaped who [Appellant] is." Defense counsel responded that she was eliciting testimony showing "the foundation of when the behavior began, which does impact him, and how long it had began and how long it has happened". The trial court sustained the prosecutor's objection and directed defense counsel to limit her inquiry to those incidents of domestic violence witnessed by both the witness and Appellant. Wilson went on in her testimony to describe incidents of domestic abuse which occurred in front of Appellant and his siblings, thus conforming to the ruling.
¶100 During Sheryl Wilson's direct examination, the trial court sustained a similar objection to testimony concerning certain instances of domestic abuse between Roy and Sheryl. In this instance, Wilson acknowledged that the domestic violence she was asked to describe was nothing Appellant "knew much about". The trial court later sustained a challenge to testimony from Wilson concerning her drug use before Appellant was born.
¶101 Appellant complains on appeal that the trial court violated his Eighth Amendment right to present relevant mitigation evidence with these rulings. Appellant did not make these arguments in connection with the trial court's ruling, thus waiving all but plain error. Moreover, the trial court did not abuse its discretion in limiting the mitigation testimony. As discussed earlier, Appellant has a constitutional right to present relevant mitigation evidence during his capital sentencing hearing. Drawing on the general relevancy standard for the admission of evidence, the Supreme Court has held that "[r]elevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." Tennard, 542 U.S. at 284, 124 S. Ct. at 2570 (internal quotation omitted). Thus, the state cannot bar "the consideration of . . . evidence if the sentencer could reasonably find that it warrants a sentence less than death." Id., 542 U.S. at 285, 124 S. Ct. at 2570 (internal quotation omitted).
¶102 The trial court did not bar the admission of evidence the sentencer could reasonably find warranted a sentence less than death. The disallowed testimony was not relevant because it described incidents of domestic violence Appellant did not witness and that did not affect his development. This testimony, along with the specifics of Sheryl Wilson's drug use prior to Appellant's birth, was not evidence of Appellant's character or record and any of the circumstances of the offense. Moreover, defense counsel elicited from the various family members extensive testimony concerning the domestic abuse Appellant witnessed as a child as well as the dynamics of his parents' relationship. Defense counsel too elicited a great deal of testimony concerning Sheryl Wilson's drug use, including evidence concerning the drugs she ingested while pregnant with Appellant. The trial court appropriately limited the witness's testimony with the challenged rulings. There was no plain or obvious error affecting Appellant's substantial rights from the trial court's ruling. Proposition IX is denied.
¶103 In Proposition X, Appellant complains that capital punishment for "brain damaged and chronically mentally ill defendants" like himself violates the Eighth Amendment. In urging a categorical exception from the death penalty for those whom he describes as "severely mentally ill," Appellant compares his situation to mentally retarded inmates who are ineligible for execution under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Appellant argues too that mental illness "is often misunderstood" by juries who "might believe, wrongly, that mental illness necessarily implies violence." This, in turn, means "a mentally ill defendant cannot adequately wage a mitigation case." And because evidence of mental illness is "often not well received by jurors" this fact calls into question the ability of a capital sentencer to adequately conduct the individualized sentencing determination required by the Eighth Amendment. For these reasons, Appellant tells us a categorical exception is needed.
¶104 We have previously rejected this claim and do so here. Underwood v. State, 2011 OK CR 12, ¶ 69, 252 P.3d 221, 248. In the present case, Appellant presented expert testimony that he was low functioning and suffered both from mental illness (most prominently depression) and brain damage. Appellant presented this testimony along with anecdotal evidence from family members concerning his cognitive and developmental limitations, his mental health treatment and his experience taking--then discontinuing--medications prescribed specifically for his mental issues.
¶105 Appellant did not assert an insanity defense at trial or otherwise show that he suffered diminished capacity to understand the nature of his conduct at the time of the crime. Appellant calmly described for police during the videotaped interview a few hours after the murder how, and why, he repeatedly stabbed the victim. Appellant's neuropsychological expert, Dr. John Fabian, testified Appellant was not mentally retarded. And there is no evidence suggesting mental illness prevents Appellant from comprehending the reasons for the death penalty in this case or its implications. Ford v. Wainwright, 477 U.S. 399, 417, 106 S. Ct. 2595, 2606, 91 L Ed. 2d 335 (1986). Defense counsel presented evidence of Appellant's mental issues as mitigating circumstances for the jury's consideration during penalty phase. Here, the jury rejected this evidence as a basis for imposing a non-capital punishment.
¶106 We decline Appellant's invitation to hold that mentally ill persons are categorically ineligible for the death penalty. Appellant provides no workable standard to implement such a rule and one is not readily apparent considering the various forms of mental illness and their varying effects on different individuals. We reject too Appellant's suggestion that he was somehow unable to mount an adequate penalty-phase defense because of the so-called "double-edged" nature of mental health evidence. In the present case, the jury was adequately instructed on the consideration of mitigating circumstances and was presented a plethora of mitigation evidence by the defense to consider in determining the appropriate sentence for Appellant's crime. The value and worth of this evidence was ultimately for the jury to decide. "Despite evidence that Appellant suffers from . . . mental illness, we accept the jury's conclusion that he was morally culpable for his actions and deserving of the death penalty." Underwood, 2011 OK CR 12, ¶ 69, 252 P.3d at 248. Proposition X is denied.
¶107 In Proposition XI, Appellant complains that his prior felony conviction was improperly used to support three (3) separate aggravating circumstances. This, Appellant argues, violated the Eighth Amendment requirement that aggravators narrow the class of persons eligible for the death penalty. Appellant complains too that using the same evidence to support three separate aggravating circumstances skews the weighing process and creates the risk that the death penalty will be imposed arbitrarily.
¶108 Appellant did not raise this claim below, thus waiving all but plain error. Appellant fails to show error, plain or otherwise. In the present case the State introduced by stipulation State's Exhibits 60 and 61, a judgment and sentence and docket sheet for Appellant's convictions on four (4) counts of Assault with a Dangerous Weapon in 2011. According to the judgment and sentence, Appellant received a ten (10) year suspended sentence on each count. These convictions were for Appellant's act of shooting at several people in a hotel parking lot. Evidence of the facts surrounding these crimes was independently presented from the police officer who witnessed the shooting. Evidence of Appellant's prior felony convictions was introduced by the State to support the aggravating circumstances that the murder was committed by a person while serving a sentence of imprisonment on a conviction of a felony; and the defendant was previously convicted of a felony involving the use or threat of violence to the person. Appellant's prior felony convictions were also relevant to show future dangerousness and, thus, the aggravating circumstance of the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. See Lockett v. State, 2002 OK CR 30, ¶ 32, 53 P.3d 418, 428 (prior felony convictions indicating likelihood of future violence may be offered to show continuing threat aggravator).
¶109 This Court has reviewed claims of unconstitutionally duplicitous aggravating circumstances in the past. We have rejected the claim that use of a prior conviction to support both the prior violent felony and continuing threat aggravators constituted error. We reasoned that the same evidence, a prior felony conviction, may be used to support these two aggravators so long as the prior conviction covers different aspects of the defendant's conduct. Hammon v. State, 2000 OK CR 7, ¶¶ 85-86, 999 P.2d 1082, 1100; Berget v. State, 1991 OK CR 121, ¶¶ 47-52, 824 P.2d 364, 376-77. We found that each aggravator covered separate and distinct aspects of the defendant's conduct, i.e., his past violent felony convictions versus the probability of committing violent acts in the future from which society would need protection. Hammon, 2000 OK CR 7, ¶ 86, 999 P.2d at 1100.
¶110 In light of these decisions, we reject Appellant's challenge to the prior violent felony aggravator and the continuing threat aggravating circumstances on grounds they are impermissibly duplicitous. Both aggravators focus on different aspects of Appellant's conduct "and one can be found without necessarily finding the others[.]" Cannon v. State, 1998 OK CR 28, ¶ 57, 961 P.2d 838, 853. Appellant fails to show a plain or obvious error affecting his substantial rights. Thus, there is no error, plain or otherwise. To the extent Appellant bases his duplicity challenge on the serving a sentence of imprisonment aggravator, this aspect of his Proposition XI claim is moot. We strike this particular aggravating circumstance in the next proposition of error and conduct reweighing in connection with our mandatory sentence review. Proposition XI is therefore denied.
¶111 In Proposition XII, Appellant complains that application of the serving a sentence of imprisonment aggravator in his case renders the aggravator unconstitutionally overbroad because he was not physically incarcerated when he committed the murder. Rather, Appellant says, he had never been to prison and was merely serving a probated sentence while serving out the suspended sentence for his prior felony convictions.
¶112 The jury found that Appellant murdered Tia Bloomer while he was "serving a sentence of imprisonment on conviction of a felony." 21 O.S.2011, § 701.12(6). In Oklahoma, a suspended felony sentence represents a felony conviction in which execution of the defendant's sentence of imprisonment is suspended in whole or part, with or without probation. 22 O.S.2011, § 991a(A)(1). When the defendant is subject to probation in this context, the sentence of imprisonment is suspended based on the defendant's compliance with special terms and conditions of probation imposed by the judgment and sentence. Marutzky v. State, 1973 OK CR 398, ¶ 5, 514 P.2d 430, 431. Probation "is a procedure by which a defendant found guilty of a crime . . . is released by the court subject to conditions imposed by the court and subject to supervision by the Department of Corrections, a private supervision provider or other person designated by the Court." 22 O.S.Supp.2014, § 991a(E).10 We have held that a suspended sentence is a matter of grace. Demry v. State, 1999 OK CR 31, ¶ 12, 986 P.2d 1145, 1147. "Until that suspended sentence has been fully served, a defendant remains under the jurisdiction of the trial court with the sentence subject to revocation." Id.
¶113 "[A] judgment and sentence where execution of all or a portion of the assessed sentence is suspended is a conviction." Grimes v. State, 2011 OK CR 16, ¶ 16, 251 P.3d 749, 754. When the State files an application to revoke, the issue is whether the suspended sentence previously imposed should be executed and the court makes a factual determination as to whether or not the terms of the suspension order have been violated. Id., 2011 OK CR 16, ¶ 13, 251 P.3d at 754. See also Friday v. State, 2016 OK CR 16, ¶ 5, 387 P.3d 928, 930 ("An order revoking a suspended sentence is not a conviction or sentence, but is instead the revocation of a condition placed upon the execution of a sentence."). During the time span of the suspended sentence, the defendant "is obligated to abide by the terms and conditions of his probation or face revocation of the unexecuted portion of his sentence. The unexecuted portion of the sentence consists of any time during that . . . [time] span not spent in custody." Grimes, 2011 OK CR 16, ¶ 10, 251 P.3d at 753.
¶114 In the present case, the judgment and sentence document introduced to prove Appellant's prior felony conviction shows he was serving a ten year sentence of imprisonment under the custody and control of the Department of Corrections--all suspended and subject to special terms and conditions of probation. A supplemental order attached to the judgment and sentence shows Appellant was subject to supervised probation for the first two (2) years of his ten year suspended sentence through the Oklahoma County District Attorney's Office. The supplemental order too contained the rules and conditions of probation to which Appellant was subject along with a few special conditions like attending domestic abuse counseling and obtaining a drug/alcohol assessment.
¶115 We have consistently rejected claims that the serving a sentence of imprisonment aggravator is limited to cases where the murder occurs in a prison facility. Humphreys v. State, 1997 OK CR 59, ¶ 31, 947 P.2d 565, 575 (citing cases). We have upheld this aggravator for murders committed by parolees. We reasoned that parole is "a 'significant restraint' on the liberty of the parolee who is subject to control of the parole board 'under the cloud of an unexpired sentence.'" Cleary v. State, 1997 OK CR 35, ¶ 42, 942 P.2d 736, 747 (quoting Plotner v. State, 1986 OK CR 97, ¶ 3, 721 P.2d 810, 811-12). See 57 O.S.2011, § 512 (setting forth the conditions for release of inmates in state penal institutions who are granted parole). We observed too that "[a] sentence which is unexpired obviously is being served." Cleary, 1997 OK CR 35, ¶ 42, 942 P.2d at 747.
¶116 We have also approved of the application of this aggravator to situations "when the killing occurred within an Oklahoma prison facility, when the murder was committed by an inmate who had escaped and when the killing was committed by an inmate participating in the Pre-parole Conditional Supervision Program." Humphreys, 1997 OK CR 59, ¶ 31, 947 P.3d at 576. We have upheld this aggravator too when the killing was committed by inmates participating in the house arrest program. Id. We reasoned that inmates serving under house arrest, like those in the pre-parole supervision program, "remain within the custody of the Department of Corrections and continue to serve their sentences while participating in them[.]" Id.
¶117 We have found no prior cases in which this Court has upheld the application of the serving a sentence of imprisonment aggravator when the murder was committed by a defendant serving a suspended sentence on a felony. The difference between the present case and those previous situations where this aggravator has been approved is that Appellant's ten year sentence of imprisonment was not executed prior to Tia Bloomer's murder. That is because Appellant's sentence of imprisonment was suspended. Appellant thus was not serving a sentence of imprisonment when he stabbed Tia Bloomer but, rather, was serving a suspended sentence of imprisonment while on probation. Appellant's situation is therefore far different from a parolee who "was serving a sentence, albeit on parole," Harmon, 2011 OK CR 6, ¶ 73, 248 P.3d at 942, an escapee who physically absented himself from DOC custody, or any of the other forms of supervised release in which we have approved the use of this aggravator. In those cases, the defendant committed capital murder while serving an unexpired sentence of imprisonment that had actually been executed.
¶118 The State argues Appellant was "under the custody and control of the Department of Corrections" when he stabbed the victim based on similar language contained within the judgment and sentence document. The judgment and sentence, however, makes clear that Appellant's ten year sentence of imprisonment was suspended on condition that Appellant follow the rules and conditions of probation contained within the supplemental order. Moreover, Appellant was not even being supervised by the Department of Corrections when he stabbed the victim. He was being supervised by the Oklahoma County District Attorney's Office and, at that, for a mere fraction (two years) of the ten year suspended sentence imposed. We therefore think the State's comparison of Appellant's supervised two-year probation to that of an inmate serving out the balance of his or her unexpired sentence of imprisonment through parole or some other form of early release to be misguided. The record makes clear Appellant's sentence of imprisonment was never executed and that he was never in DOC custody on the suspended sentence.
¶119 The difference between a suspended sentence of imprisonment and an actual sentence of imprisonment is stark when one considers the significance of an order revoking a suspended sentence. If the trial court finds a defendant violated the rules and conditions of his probation, the court may execute the entire unexecuted portion of the defendant's sentence until the expiration of the original term of sentence. 22 O.S.2011, § 991b; Grimes, 2011 OK CR 16, ¶ 10, 251 P.3d at 753; Hemphill v. State, 1998 OK CR 7, ¶ 9, 954 P.2d 148, 151. That means had Appellant's sentencing judge found a violation by Appellant of his rules and conditions of probation, the court would have been authorized to revoke Appellant's ten year sentence in whole, thus resulting in Appellant's subsequent service of ten full years in confinement. The reason why is clear: Appellant was serving a suspended, probated sentence of imprisonment that had not yet been executed--not an unexpired sentence of imprisonment where he was actually committed to DOC custody. A parolee, by contrast, would only be forced to serve the remainder of his unexpired sentence of imprisonment in the case of parole revocation. State ex rel. Corgan v. King, 1994 OK CR 7, ¶ 9, 868 P.2d 743, 745.
¶120 "Parole is a discretionary act of the Governor which releases a person from jail, prison or other confinement, after actually serving a part of the sentence. Probation, on the other hand, relates to judicial action taken before the prison door is closed, and is part of the sentence imposed." Swart v. State, 1986 OK CR 92, ¶ 16 n.9, 720 P.2d 1265, 1270 n.9. This distinction is critical in light of the plain language of the statute defining this statutory aggravating circumstance, i.e., "[t]he murder was committed by a person while serving a sentence of imprisonment on conviction of a felony." 21 O.S.2011, § 701.12(6). Had the Legislature intended for the serving a sentence of imprisonment aggravator to apply to unexecuted, suspended sentences like the one at issue here, it could easily have said so. Because it did not, however, we must follow the plain language of the statute and strike the jury's finding of this aggravator here. Newlun v. State, 2015 OK CR 7, ¶ 8, 348 P.3d 209, 211 ("We must hold a statute to mean what it plainly expresses and cannot resort to interpretive devices to create a different meaning."). We will discuss below, in connection with our mandatory sentence review, the effect of this error on Appellant's death sentence.
¶121 In Proposition XIII, Appellant argues that insufficient evidence was presented to support the jury's finding that "[t]he murder was especially heinous, atrocious, or cruel." See 21 O.S.2011, § 701.12(4). In reviewing an evidentiary sufficiency challenge to an aggravating circumstance, we take the record evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the aggravator beyond a reasonable doubt. Coddington v. State, 2011 OK CR 17, ¶ 62, 254 P.3d 684, 710; DeRosa v. State, 2004 OK CR 19, ¶ 85, 89 P.3d 1124, 1153.
¶122 A particular murder is especially heinous, atrocious or cruel where the evidence shows: (1) that the murder was preceded by either torture of the victim or serious physical abuse; and (2) that the facts and circumstances of the case establish that the murder was heinous, atrocious or cruel. Postelle, 2011 OK CR 30, ¶ 79, 267 P.3d at 143. The "term 'torture' means the infliction of either great physical anguish or extreme mental cruelty." Id. A finding of "serious physical abuse" or "great physical anguish" requires that the victim have experienced conscious physical suffering prior to death. Id. "[T]he term 'heinous' means extremely wicked or shockingly evil; the term 'atrocious' means outrageously wicked and vile; and the term 'cruel' means pitiless, designed to inflict a high degree of pain, or utter indifference to or enjoyment of the suffering of others." Id.
¶123 Taken in the light most favorable to the State, the evidence shows the victim was not only aware of Appellant's attack but that she cried for help and actively resisted the stabbing for a significant period of time. Appellant inflicted numerous and repeated severe injuries to vital areas of the victim's body with the flimsy serrated steak knife. Many of these stab wounds cut through bone and vital organs. The surveillance video shows the victim was alive, conscious and moving during the attack. A defensive wound was evident on her hand along with a broken finger and fractured thumb, all suggesting active resistance. The presence of numerous superficial cuts confirms what the surveillance video shows, namely, that Appellant stabbed at the victim many more times than what was required to inflict the seven stab wounds.
¶124 True, Appellant launched a rapid attack in which he repeatedly stabbed the victim over a short period of time. But there is no question the stab wounds and superficial cuts he inflicted would have been painful. And the surveillance video shows the victim's death was not instantaneous. Rather, she actively resisted for a portion of Appellant's attack. "Evidence that the victim was conscious and aware of the attack supports a finding of torture and serious physical abuse." Frederick, 2017 OK CR 12, ¶ 109, 400 P.3d at 817. The victim's inability to more actively (and visibly) resist may be explained by Appellant sitting on the victim while stabbing her as well as the injuries he inflicted to her throat which likely prevented her from speaking.
¶125 In Cole v. State, 2007 OK CR 27, 164 P.3d 1089, we found sufficient evidence supported the especially heinous, atrocious or cruel aggravating circumstance where the infant victim suffered a fairly quick death but the evidence showed defendant forcefully folded his daughter over backwards until her spine snapped and her aorta tore. The medical examiner testified these injuries would be painful and unconsciousness was not immediate. However, the victim was likely not conscious for more than 30 seconds after her spine snapped and she probably died within two or three minutes. Because of the great amount of protracted deliberate force inflicted, however, we found this aggravator was supported by the evidence. Although fairly quick, the victim's death "was far from painless [and] the pain was likely excruciatingly horrible." We found this evidence of conscious physical suffering was "unlike 'virtually all murders,' thereby placing this crime within the narrowed class of individuals for which capital punishment is a valid option." Id., 2007 OK CR 27, ¶¶ 41-47, 164 P.3d at 1098-99. See also Cole v. Trammell, 755 F.3d 1142, 1166-71 (10th Cir. 2014) (upholding on habeas review the finding of the heinous, atrocious or cruel aggravator on these facts).
¶126 In the present case, Appellant inflicted numerous severe stab wounds and superficial cuts to the victim. Although her injuries were delivered rapidly and her death was relatively quick, there is no question the victim suffered excruciating pain from the stab wounds and cuts at the hands of her estranged boyfriend as she and several bystanders resisted his attack. The surveillance video of the killing reveals a ferocious attack launched by Appellant against the victim in a public place after following and cornering her near the glass doors. Considering the nature of the injuries, many of the victim's stab wounds would require tremendous force to inflict using the flimsy white-handled steak knife found near the body.
¶127 Although brief, the conscious physical suffering endured by the victim was extreme and qualitatively separates this case from the many murders where the death penalty was not imposed. The sheer brutality of the injuries, combined with the victim's active and on-going resistance together with the mental anguish of being stabbed repeatedly, further separates this case from virtually all other murders. The total evidence shows the requisite conscious physical suffering to demonstrate that the victim endured serious physical abuse prior to death. As in Cole, we find the intensity of suffering caused by the rapidly inflicted injuries here warrants a finding that this evidence of conscious physical suffering and mental anguish was unlike virtually all murders, thereby placing this crime within the narrowed class of individuals for which capital punishment is a valid option. See Maynard v. Cartwright, 486 U.S. 356, 362-65, 108 S. Ct. 1853, 1858-59, 100 L. Ed. 2d 372 (1988).
¶128 In addition, the evidence shows Appellant intended to inflict a high degree of pain and suffering on his estranged girlfriend and that he did so with utter indifference to the victim's conscious physical suffering. Appellant's attack on Tia Bloomer in the downtown bus station was pitiless and showed no feeling or mercy towards the victim as he thwarted the efforts of both bystanders and the victim to resist his onslaught. Given the couple's tumultuous history, the victim too surely experienced increased anxiety and mental anguish when Appellant appeared, attempted to speak with her and followed her around inside the bus terminal. Appellant attacked the victim only after she rejected his advances to talk inside the bus terminal and walked away, further increasing the already tense relations between the two and sparking Appellant's unrestrained violence and fury towards her. The jury could infer that Appellant sought to (and in fact did) severely punish the victim when delivering the deadly knife attack. Under these circumstances, the victim's murder was, at the least, "cruel" in light of our definitional interpretation of the statutory language for the especially heinous, atrocious or cruel aggravator. These facts further place the crime within the narrowed class of individuals for which capital punishment is a valid option.
¶129 Taken in the light most favorable to the State, any rational trier of fact could have found the victim was conscious for a significant portion of the stabbing and that she suffered the requisite torture or serious physical abuse. Sufficient evidence was therefore presented to show the existence beyond a reasonable doubt that this brutal murder was especially heinous, atrocious or cruel. Proposition XIII is denied.
¶130 In Proposition XIV, Appellant complains that the especially heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague and applied in an overbroad manner. We have repeatedly rejected this claim in light of the limiting construction we have applied to this aggravator as discussed above in Proposition XIII. See, e.g., Martinez, 2016 OK CR 3, ¶ 67, 371 P.3d at 1116. Notably, that limiting construction was provided to the jury in the written instructions provided for this aggravating circumstance. Proposition XIV is denied.
¶131 In Proposition XV, Appellant complains that reversible error arose from his outburst before the jury during his mother's penalty phase testimony. Appellant's outburst occurred when the prosecutor objected to Sheryl Wilson's testimony concerning domestic violence by Roy Tryon. The prosecutor objected on grounds of relevance because there was no evidence that Appellant had witnessed the specific instance of domestic violence being described by Wilson. When the prosecutor asked to approach the bench, the following exchange occurred:
MS. LAVENUE: Your Honor, I'd ask to approach again.
THE COURT: Okay. Come on up.
[DEFENDANT]: Mama, tell it how it is, man, fuck, Blood.
THE COURT: Hey, hey, stop, stop.
[DEFENDANT]: It can't be fucking hurt no more than I already in some shit.
THE COURT: Stop, stop.
[DEFENDANT]: I'm just saying quit holding things back. You need to tell them how the fuck it is.
THE COURT: If you guys would please step out for me, please.
(Jurors exited the proceedings.)
[DEFENDANT]: I'm already facing the DP. Fuck these people, I'm saying. (Unintelligible).
I don't give a fuck. I'm tired of this trial anyway. I need the death penalty. I don't give a fuck about this shit, man.
MS. FREEMAN-JOHNSON: All right.
THE COURT: Do you want to stay down here or do you want to go upstairs?
[THE DEFENDANT]: Yeah, just take me back to the jail. I mean, fuck, I don't need to be in here. Give me the DP. That's the fuck I've been asking for since day one. Give me the fucking DP, straight up, man. Quit bringing me the fuck over here, man.
(Tr. VII 1555-56).
¶132 The trial court ordered Appellant taken back upstairs and defense counsel stated they were going to talk to Appellant. The witness left the stand after proclaiming "I'm done too." Before he was led out of court, Appellant stated, apparently to the prosecutor, "You keep jumping up and objecting to shit, like mother fuck is lying." After a brief recess, a record was made during which defense counsel requested a mistrial based on Appellant's outburst. The trial court also issued a bench warrant to authorize the arrest of Sheryl Wilson who, by this point, had left the courthouse. The trial court denied the defense request for a mistrial and to question the jurors individually concerning what each one heard and whether it would affect their ability to sit on the case. The trial court then admonished Appellant that further outbursts would result in his permanent banishment from the courtroom. The jury was brought in and, after explaining that a new witness was going to be called out of order, the trial court admonished the jury to "don't let that be part of your deliberation or cause you any concerns. And also please disregard the defendant's outburst earlier and please do not let that be a part of your deliberation or cause of concern." The trial then resumed.
¶133 The trial court did not abuse its discretion in denying Appellant's request for mistrial. Knighton, 1996 OK CR 2, ¶ 64, 912 P.2d at 894 (whether to grant a mistrial at defense request is left to the trial court's sound discretion). "A mistrial is an appropriate remedy when an event at trial results in a miscarriage of justice or constitutes an irreparable and substantial violation of an accused's constitutional or statutory right." Id., 1996 OK CR 2, ¶ 65, 912 P.2d at 894. Here, the trial court intervened decisively by removing the jury in response to Appellant's outburst. The trial court then admonished the jury to disregard Appellant's outburst. Jurors are presumed to follow their instructions. Blueford v. Arkansas, 566 U.S. 599, 606, 132 S. Ct. 2044, 2051, 182 L. Ed. 2d 937 (2012). We have held too in a slightly different context that the court's admonishment of the jury to disregard a witness's vile language towards defense counsel prompted by defense counsel's conduct, along with a prejudicial outburst by a spectator, cured any error. Johnson v. State, 1979 OK CR 65, ¶¶ 3-4, 597 P.2d 340, 341-42; Cooper v. State, 1974 OK CR 131, ¶¶ 24-25, 524 P.2d 793, 798; McDaniel v. State, 1973 OK CR 222, ¶ 12, 509 P.2d 675, 679-80.
¶134 The incident in the present case was of short duration and the trial court took appropriate measures to reduce the risk of unfair prejudice. See Williams v. State, 2001 OK CR 9, ¶¶ 56-57, 22 P.3d 702, 717-18. Moreover, Appellant is solely responsible for any prejudice arising from this outburst. An appellant will not be permitted to profit on appeal from alleged error he or his counsel invited. See Slaughter v. State, 1997 OK CR 78, ¶ 101 n.18; 950 P.2d 839, 865 n.18 (citing cases). All things considered, the trial court did not abuse its discretion in denying Appellant's motion for mistrial or in declining his motion to question the jurors about what they had heard. Proposition XV is denied.
¶135 In Proposition XVII, Appellant challenges the constitutionality of capital punishment. He cites Justice Breyer's dissent in Glossip v. Gross, __U.S.__, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015) to support this claim. We reject Appellant's invitation to revisit this issue. We have repeatedly held that capital punishment does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. See, e.g., Miller, 2013 OK CR 11, ¶ 213, 313 P.3d at 998; Johnson v. State, 2012 OK CR 5, ¶¶ 33-34, 272 P.3d 720, 731-32. Appellant's claim is notable for its failure to cite controlling authority overruling our prior decisions in this area. Appellant's scant arguments here invoke the alleged unreliability of capital punishment, its supposed arbitrariness in application, the delay associated with its use and the decision by other States not to use it. These non-case-specific complaints amount to basic policy disagreements with the sentence itself which are more appropriately made to the Legislature. Proposition XVII is denied.
¶136 In Proposition XVIII, Appellant asserts previously rejected claims challenging several uniform Oklahoma capital sentencing instructions given in this case. Appellant asks this Court to reconsider our prior rulings on these issues so he may preserve them for later federal review. First, Appellant did not object to the penalty phase instructions, thus waiving all but plain error review on appeal. Jackson, 2016 OK CR 5, ¶ 4, 371 P.3d at 1121. Second, there is no error, let alone plain error, in light of our previous rejection of these claims and our review of the total instructions given here. Mitchell v. State, 2016 OK CR 21, ¶ 27, 387 P.3d 934, 944 ("As there is no error, there is no plain error."). Claim A: Harmon, 2011 OK CR 6, ¶ 85, 248 P.3d at 944-45 (rejecting claim that OUJI-CR 4-78 improperly allowed the jury to disregard the mitigating evidence presented). Claim B: Mitchell v. State, 2010 OK CR 14, ¶ 122, 235 P.3d 640, 664 (rejecting claim that OUJI-CR 4-76 erroneously implied that a non-capital sentence is appropriate only if the jury failed to find existence of an aggravating circumstance). Claim C: Cuesta-Rodriguez, 2010 OK CR 23, ¶¶ 72-74, 241 P.3d at 237 (rejecting claim that the phrase "unique loss to society and the family" in OUJI-CR 9-45 improperly allowed jurors to consider the impact of the loss of the victim on society rather than simply the impact on the immediate family in light of victim impact statute). Claim D: Johnson, 2012 OK CR 5, ¶ 22, 272 P.3d at 728-29 (State is not required to prove beyond a reasonable doubt that the alleged aggravating circumstances outweigh mitigating circumstances nor is such an instruction required); Mitchell, 2010 OK CR 14, ¶ 123, 235 P.3d at 664 (rejecting challenge that OUJI-CR 4-80 weighing instruction procedures contravene the heightened need for reliability in death penalty cases). Proposition XVIII is denied.
PROSECUTORIAL MISCONDUCT
¶137 In Proposition XVI, Appellant alleges various instances of prosecutorial misconduct at trial. We will not grant relief for improper argument unless, viewed in the context of the whole trial, the statements rendered the trial fundamentally unfair, so that the jury's verdict is unreliable. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986); Pullen, 2016 OK CR 18, ¶ 13, 387 P.3d at 927.
¶138 First, Appellant complains the prosecutor improperly defined "justice" for the jury. During voir dire, the prosecutor told prospective juror J.H. that "[t]he dictionary defines justice as rendering unto each man or woman that which he or she is due." With that definition in mind, the prosecutor asked J.H. whether she could "sit in this case and see that justice is done?" When J.H. replied "yes", the prosecutor followed up and asked whether she realized that could mean finding the defendant guilty or it could mean acquitting the defendant. The prosecutor then asked the other prospective jurors whether they could do the same thing. The prospective jurors agreed that they could do justice in the case based on the evidence. During this discussion, the prosecutor told the panel that what the attorneys said is not evidence and that the trial judge would give the jury instructions at the end of the case to "lay out exactly what it is that you have to do or, I mean, what the rules are."
¶139 At the end of the State's second closing argument, the prosecutor revisited the earlier discussion she had with the jurors about doing justice in the case:
Ladies and gentlemen of the jury, I ask each of you, when you were chosen, if you could sit in this case and see that justice is done. And justice was defined to you as rendering unto each man or woman that which he or she is due. I would submit to you that the State of Oklahoma has proved beyond all doubt that on March the 16th of 2012 [Appellant] murdered Tia Bloomer; that he had malice aforethought.
(Tr. V 1172). The prosecutor then briefly urged that stabbing someone in the vital areas of the body, as Appellant had done to the victim, showed malice aforethought. Thus, the prosecutor argued, Appellant killed the victim with malice aforethought and a verdict of guilty on first degree murder was warranted.
¶140 Later, during final penalty phase closing, the prosecutor once again briefly revisited the earlier discussion about justice she had with the jurors during voir dire. The prosecutor then continued with her argument by discussing the evidence supporting Appellant's mitigating circumstances. During this argument, the prosecutor urged that the "fair" and "just" punishment for Tia Bloomer's murder was the death penalty; "that, when we talk about justice and rendering unto each man what he is due, that is what he is due."
¶141 Appellant did not object to any of these arguments below. He has therefore waived on appeal all but plain error. Sanchez v. State, 2009 OK CR 31, ¶ 72, 223 P.3d 980, 1004. Appellant fails to show error, let alone plain error, from these comments. In Grant v. State, 2009 OK CR 11, ¶ 64, 205 P.3d 1, 25, we rejected virtually this same argument, finding that "[w]hatever the source of the definition, it was within the bounds of proper argument." Appellant fails to show plain or obvious error affecting his substantial rights, particularly considering the prosecutor's focus on the evidence during her closing argument in urging the jury both to convict and, then later, sentence Appellant to death. Relief is denied for this particular claim.
¶142 Finally, Appellant cries foul over several of the prosecutor's questions on cross-examination of Dr. Fabian during penalty stage. Appellant also challenges in one instance the prosecutor's questioning of Dr. Musick. Some of the questions now challenged by the prosecutor drew proper objections at trial whereas others did not. Regardless, we have reviewed the prosecutor's various questions challenged here and find no error. "Cross-examination is permissible into 'matters affecting the credibility of the witness.'" Harris v. State, 1989 OK CR 34, ¶ 9, 777 P.2d 1359, 1362 (quoting 12 O.S.1981, § 2611). The prosecutor did nothing more in the challenged passages than impeach, or attempt to impeach, each expert's credibility based on issues raised by their testimony on direct examination. This was wholly permissible, see McElmurry v. State, 2002 OK CR 40, ¶ 120, 60 P.3d 4, 29-30, and Appellant fails to show that he was denied a fundamentally fair sentencing proceeding based on the prosecutor's cross examination. Proposition XVI is denied.
CUMULATIVE ERROR
¶143 In Proposition XIX, Appellant claims that relief is warranted based on cumulative error. In this case, we assumed first stage error based on the trial court's admission of the third sentence of the text message evidence in which the victim expressly identified Appellant as her attacker. We nonetheless found any error harmless in light of the overwhelming evidence of Appellant's guilt along with the properly admitted evidence establishing Appellant's responsibility for previously choking the victim (Proposition III). We also assumed first stage error from the trial court's disallowance of testimony from Appellant's brother and cousin concerning whether Appellant expressed any desire to harm the victim or otherwise expressed concern about getting the text message from her. However, we found no plain error based on the overwhelming evidence of guilt which the omitted evidence would not overcome (Proposition IV). Also, we invalidated the serving a sentence of imprisonment aggravator, finding that it did not apply to defendants who kill while serving a suspended sentence (Proposition XII). We address the impact of this invalid aggravator more fully in our mandatory sentence review.
¶144 We find that the cumulative effect of these errors does not warrant relief. This simply is not a case where numerous irregularities during Appellant's trial tended to prejudice his rights or otherwise deny Appellant a fair trial. See Martinez, 2016 OK CR 3, ¶ 85, 371 P.3d at 1119 (reciting cumulative error standard). Proposition XIX is denied.
MANDATORY SENTENCE REVIEW
¶145 This Court must determine in every capital case: (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the jury's finding of the statutory aggravating circumstances. 21 O.S.2011, § 701.13(C). As discussed earlier, we invalidated the serving a sentence of imprisonment aggravator. See Proposition XII. We also found sufficient evidence supported the especially heinous, atrocious or cruel aggravating circumstance. See Proposition XIII. Sufficient evidence was also presented to support the prior violent felony aggravator based upon the admission of State's Exhibits 60-61, the judgment and sentence documents evidencing Appellant's four prior convictions for Assault with a Dangerous Weapon.
¶146 Additionally, the State presented sufficient evidence in support of the continuing threat aggravator. "To support the aggravator of continuing threat, the State must present evidence showing the defendant's behavior demonstrated a threat to society and a probability that threat would continue to exist in the future." Lockett, 2002 OK CR 30, ¶ 32, 53 P.3d at 428 (quoting Hain v. State, 1996 OK CR 26, ¶ 67, 919 P.2d 1130, 1147).
¶147 Here, the State presented evidence during penalty phase showing Appellant: 1) attempted to pull a loaded 9mm on a uniformed Oklahoma City police officer during a foot chase and subsequent take down; 2) opened fire into a crowd of bystanders he was chasing in a hotel parking lot then ran inside the hotel, ditched the gun and altered his appearance in an effort to avoid arrest for the shooting; 3) was shocked with a Taser and forcibly removed from his mother's residence after physically fighting with police officers responding to a call for help from Appellant's mother; 4) claimed gang affiliation, had gang tattoos and had been shot at during a gang shooting; 5) engaged in fights with other inmates in the county jail, one of which was captured on surveillance video and shows Appellant beating up inmate Dartangan Cotton; 6) punched a female cousin in the face at the family home during a Christmas Eve fight with his brother Rico resulting in Appellant's arrest; and 7) was on supervised probation, serving a suspended sentence for his prior convictions of Assault with a Dangerous Weapon, when he murdered the victim. See Romano v. State, 1993 OK CR 8, ¶ 92, 847 P.2d 368, 389, aff'd, Romano v. Oklahoma, 512 U.S. 1, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994) (evidence of a defendant's criminal record, or prior unadjudicated acts of violent conduct, is relevant to show future dangerousness and, thus, the continuing threat aggravator). In addition, the State elicited on cross-examination testimony from Sheryl Wilson that she had witnessed Appellant head butt and beat Tia Bloomer. Dr. Fabian too testified that Appellant meets the criteria for antisocial personality disorder.
¶148 We now assess the impact of the invalidated aggravator on Appellant's death sentence. In this analysis, "we must determine both that the remaining aggravating circumstances outweigh the mitigating circumstances and the weight of the improper aggravator is harmless." Malone v. State, 2013 OK CR 1, ¶ 87, 293 P.3d 198, 221. The prior violent felony aggravator and continuing threat aggravator enabled the jury to give aggravating weight to the same facts and circumstances used to support the invalid aggravator, i.e., the judgment and sentence documents reflecting Appellant, at the time of the murder, was serving a suspended sentence for his prior felony convictions for Assault with a Dangerous Weapon. Thus, the invalid aggravator could not have skewed the sentence imposed, and no constitutional violation occurred. See Brown v. Sanders, 546 U.S. 212, 220, 126 S. Ct. 884, 892, 163 L. Ed. 2d 723 (2006); Myers, 2006 OK CR 12, ¶ 105, 133 P.3d at 337.
¶149 With this finding, we conduct an independent reweighing of the aggravating and mitigating evidence to determine the validity of Appellant's death sentence. Malone, 2013 OK CR 1, ¶ 87, 293 P.3d at 221-22; Myers, 2006 OK CR 12, ¶ 106, 133 P.3d at 337. In this regard we have held:
when this Court invalidates an aggravator and at least one valid aggravating circumstance remains which enables the jury . . . to give aggravating weight to the same facts and circumstances which supported the invalid aggravator, it will continue to reweigh the evidence and uphold the death sentence if the remaining aggravating circumstances outweigh the mitigating circumstances and the weight of the improper aggravator is harmless. Clemons v. Mississippi, 494 U.S. 738, 741, 110 S. Ct. 1441, 1444, 108 L. Ed. 2d 725 (1990); Valdez v. State, 1995 OK CR 18, ¶ 73, 900 P.2d 363, 384. We may find an improper aggravator to be harmless error if, looking at the record, the Court finds that the elimination of the improper aggravator cannot affect the balance beyond a reasonable doubt. McGregor v. State, 1994 OK CR 71, ¶ 48, 885 P.2d 1366, 1385-86. This "independent reweighing of aggravating and mitigating circumstances where one of several aggravating circumstances has been invalidated is implicit to our statutory duty to determine the factual substantiation of a verdict and validity of a death sentence." McGregor, id.
Myers, 2006 OK CR 12, ¶ 106, 133 P.3d at 337.
¶150 In the present case, three aggravating circumstances remain: the prior violent felony aggravator; the continuing threat aggravator; and the especially heinous, atrocious or cruel aggravator. 21 O.S.2011, § 701.12(1), (4), (7). The evidence supporting all three aggravating circumstances was strong. The evidence detailed earlier showed not only Appellant's prior felony convictions for four counts of Assault with a Dangerous Weapon but also numerous instances of prior violent acts towards police officers, family members, the victim, other inmates and the public supporting the continuing threat aggravator. Appellant's murder of Tia Bloomer in a crowded public place while serving a sentence of supervised probation likewise supports this aggravator as does the callous and brutal nature of the killing itself. See Hooks, 1993 OK CR 41, ¶ 33, 862 P.2d at 1282-83. Moreover, as discussed in Proposition XIII, the evidence showed the victim endured conscious physical suffering as Appellant stabbed her repeatedly in the bus station, thus supporting the especially heinous, atrocious, or cruel aggravator.
¶151 Appellant presented abundant mitigation evidence from his family members covering virtually every aspect of his life. This included first-hand accounts concerning Appellant's drug abuse; learning disabilities; educational background; prior incarcerations; prior head injuries; suicide attempts; family background; mental health treatment and institutionalization; prior incarcerations of his mother, father and siblings; gang involvement; the crowded conditions at the family home; the fact the family constantly moved; the non-stop drug activity at the family home; the routine absence of Appellant's mother from the family home while on multi-day drug binges; Appellant's mother buying drugs from Appellant and his brother; Sheryl's physical abuse of her children; Appellant's drug dealing; Appellant's love for his son; the nature of Appellant's relationship with the victim; and the nature of Appellant's relationship with his mother.
¶152 The defense also presented expert testimony from Dr. Fabian, a neuropsychologist, that Appellant was low functioning (but not mentally retarded) and suffered both from mental illness and brain damage. Appellant presented this testimony along with anecdotal evidence from family members concerning his cognitive and developmental limitations, his mental health treatment and his experience taking--then discontinuing--medications prescribed specifically for his mental issues. Dr. Musick, a sociology professor, was presented by the defense as an expert witness to discuss the risk factors and events from Appellant's life history which impacted his development. This was offered to explain Appellant's pattern of illegal behavior culminating in his murder of Tia Bloomer.
¶153 Upon reweighing the remaining valid aggravating circumstances against the mitigation evidence, we find the aggravating circumstances outweighed the mitigating evidence and supported the death sentence. Had the jury considered only these valid aggravating circumstances, we find beyond a reasonable doubt the jury would have imposed the same sentence of death. Upon review of the record, we are also satisfied that neither passion, prejudice nor any other arbitrary factor contributed to the jury's sentencing determination. After carefully reviewing the evidence presented, we find too that it supported the jury's finding of the three valid aggravating circumstances.
DECISION
¶154 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYTHE HONORABLE CINDY H. TRUONG, DISTRICT JUDGE
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
MELANIE FREEMAN-JOHNSONJAMES T. ROWANLAURA SAMSASSISTANT PUBLIC DEFENDERS320 ROBERT S. KERR, SUITE 611OKLAHOMA CITY, OK 73102COUNSEL FOR DEFENDANT
ANDREA DIGILIO MILLERASSISTANT PUBLIC DEFENDER320 ROBERT S. KERR, SUITE 611OKLAHOMA CITY, OK 73102COUNSEL FOR APPELLANT
SUZANNE LAVENUEMERYDITH EASTERASSISTANT DISTRICT ATTORNEYS320 ROBERT S. KERR, SUITE 505OKLAHOMA CITY, OK 73102COUNSEL FOR STATE
E. SCOTT PRUITTOKLAHOMA ATTORNEY GENERALJENNIFER J. DICKSONASSISTANT ATTORNEY GENERAL313 N.E. 21ST STREETOKLAHOMA CITY, OK 73105COUNSEL FOR APPELLEE
OPINION BY: HUDSON, J.LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART LEWIS, V.P.J.: CONCURKUEHN, J.: CONCUR IN PART/DISSENT IN PARTMUSSEMAN, D.J.11: CONCUR
FOOTNOTES
1 The jury found: 1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) the murder was committed by a person while serving a sentence of imprisonment on conviction of a felony; 3) at the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society; and 4) the murder was especially heinous, atrocious, or cruel. 21 O.S.2011, § 701.12.
2 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 Appellant complains that the abuse of discretion standard we use to evaluate the district court's limitations on voir dire does not apply when a constitutional error is alleged. Notably, Appellant cites no authority for this proposition. There is nothing inconsistent with our use of the abuse of discretion standard in this context. Simply, we apply Morgan's pronouncement that the trial court's broad discretion in conducting voir dire is subject to the essential demands of fundamental fairness. If Appellant's trial was not rendered fundamentally unfair from the trial court's exercise of discretion in limiting voir dire then there is no abuse of discretion and, thus, no basis for relief.
4 We note that the trial court as part of its questioning asked the prospective jurors, consistent with Morgan, whether they would automatically impose the death penalty if they found Appellant guilty of first degree murder.
5 Appellant's trial objection to these photographs appears to reference the objections he made to various autopsy photographs at an in camera hearing the day before. The problem, however, is that none of the photographs discussed at the in camera hearing were marked as exhibits. We can identify several discrete objections made by defense counsel to certain categories of photographs--for example, defense counsel objected to the autopsy photographs depicting the wooden Q-tip swabs in the wounds to illustrate directionality of the wound; to the photograph of the victim's face; and to the photograph depicting the thin metal probe through the victim's hand. But we cannot discern from the record of the pre-trial hearing any objections to the photographs which were later admitted as State's Exhibits 28--36.
6 Notably, defense counsel was unable to identify any act of provocation during the instructions conference but explained that he was requesting the instruction anyway because "I'm not a juror. So a juror might have seen something."
7 Rico Wilson testified that he last saw Appellant sitting by himself on the steps of his mother's apartment around 9:30 or 10:00 p.m. on March 15th. Rico testified he was "pretty sure" Appellant was high at the time. However, Rico denied knowing anything about what happened at the bus station the next day.
8 Title 12, O.S.Supp.2013, § 2703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
9 Title 12, O.S.2011, § 2705 states:
An expert may testify in terms of opinion or inference and give reasons therefor without previous disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
10 In 2011, when Appellant received his ten year suspended sentence, the statutory language authorizing court-ordered supervision by the District Attorney's Office was set forth at 22 O.S.2011, § 991a(A)(1)(s). The District Attorney's Office falls, for purposes of this statutory language, under the provisions of "other person designated by the Court." State ex rel. Mashburn v. Stice, 2012 OK CR 14, ¶ 14, 288 P.3d 247, 251.
11 The Honorable William J. Musseman, Tulsa County District Judge, sitting by assignment.
LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART
¶1 I concur in affirming the Judgment and Sentence in this case but write separately to address Proposition XII and the striking of the aggravator of "serving a sentence of imprisonment on conviction of a felony". 21 O.S.2011, § 701.12(6). I disagree with the interpretation expressed in the opinion of a suspended sentence not coming within the parameters of the aggravator. I believe the opinion "strains a gnat's hair" to get to the result reached and I see no difference between the parolee committing murder and a person on a suspended sentence committing murder. The analysis used in the opinion applies form over substance as to the condition of the defendant when a murder is committed. I would uphold the aggravator finding it supported by sufficient evidence.
KUEHN, JUDGE, CONCURRING IN PART, DISSENTING IN PART:
¶1 In Proposition III, the Majority discusses the admissibility of a three-sentence text message that the victim sent to Appellant the night before he killed her: "It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday." The Majority finds that admission of this statement did not violate Appellant's Sixth Amendment right to confront his accusers, because it was not testimonial in nature. I agree with that conclusion. Turning next to the statement's admissibility under the Evidence Code, the Majority finds that the first two sentences of the text are hearsay, but admissible under the "state of mind" exception to the general ban on hearsay evidence. 12 O.S.2011, § 2803(3). I agree with that analysis as well.
¶2 The Majority finds the third sentence -- which directly accuses Appellant of domestic abuse -- admissible under the same state-of-mind exception. I disagree with that analysis. After conceding that the state-of-mind exception expressly disallows statements "of memory or belief to prove the fact remembered or believed," id., the Majority nevertheless tries to defend the victim's reference to past abuse under this exception by distinguishing statements merely about prior acts from those that actually describe the events in question. Statements about past events, offered to prove the past event, simply are not contemplated by the state-of-mind exception. No matter how hard you hit a square peg, it won't fit into a round hole.1
¶3 To determine admissibility of an unsworn statement, the questions to be asked are: (1) Is it hearsay? (2) If so, does it meet an exception to the general rule barring hearsay? (3) If so, is it relevant? and (4) Even if it is relevant, is its probative value substantially outweighed by unfair prejudice? I believe the accusation of prior abuse -- indeed, the entire text message -- is admissible under the "forfeiture by wrongdoing" doctrine. 12 O.S.Supp.2014, § 2804(B)(5). And I believe the entire message, admissible under this exception, was relevant to show Appellant's intent and motive for killing the victim and had considerable probative value. Because trial courts and counsel look to this Court for guidance on evidentiary issues, I believe the doctrine of forfeiture by wrongdoing merits additional discussion.
¶4 Because the text message referred to another crime, the State gave pretrial notice of its intent to offer the evidence. 12 O.S.2011, § 2404(B); Burks v. State, 1979 OK CR 10, 594 P.2d 771. At a hearing, the prosecutor argued that the victim's text message was admissible on equitable grounds, because it was reasonable to infer that Appellant killed the victim to prevent her from making good on her threat to report his prior abuse to the police. Well-established at common law, the doctrine of forfeiture by wrongdoing holds that the State is absolved of its duty to bring the accuser to court if the defendant has taken part in a scheme to keep her away. Giles v. California, 554 U.S. 353, 366-68, 128 S.Ct. 2678, 2687-88, 171 L.Ed.2d 488 (2008); Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 2280, 165 L.Ed.2d 224 (2006); Hunt v. State, 2009 OK CR 21, ¶ 8, 218 P.3d 516, 518. The doctrine is an equitable remedy. It is concerned only with fairness, i.e., it is not based on any conclusions about the inherent reliability of the statements themselves. Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004); Reynolds v. United States, 98 U.S. 145, 158--159, 25 L.Ed. 244 (1879).2
¶5 To support a finding of forfeiture by wrongdoing, the State must prove in a pretrial hearing, by a preponderance of evidence, that the defendant wrongfully caused the declarant's unavailability as a witness, and did so intending that result. 12 O.S.Supp.2014, § 2804(B)(5). The exception applies "only if the defendant has in mind the particular purpose of making the witness unavailable." Giles, 554 U.S. at 367, 128 S.Ct. at 2687. The court can consider the totality of the circumstances, including both pre-arrest and post-arrest conduct, which may include the charged crime if it was committed to prevent a witness from testifying. However, the context of the conduct is important to establish the defendant's intent, and to show what, specifically, the defendant did that made the witness choose not to testify. As well, hearsay evidence (not limited to the statements themselves) may be considered at that hearing. Davis, 547 U.S. at 833-34, 126 S.Ct. at 2280; 12 O.S.2011, § 2103(B)(1). Such a hearing should also address any other issues relevant to the statements, e.g., other-crimes evidence under § 2404(B) of the Evidence Code.3 If the court finds, by a preponderance of evidence, that the defendant willfully procured the declarant's absence for the purpose of preventing her from giving evidence, then the doctrine will permit her unsworn, unconfronted statements to be offered into evidence. Davis, 547 U.S. at 833, 126 S.Ct. at 2280; Giles, 554 U.S. at 367, 128 S.Ct. at 2687. Evidence admissible under this theory is immune to both Confrontation-Clause and hearsay challenges. Giles, 554 U.S. at 365, 128 S.Ct. at 2686; United States v. Dhinsa, 243 F.3d 635, 652 (2nd Cir. 2001).
¶6 As the Supreme Court stressed in Giles, the State must show not only that the defendant procured the declarant's absence, but that he did so for the purpose of preventing her from testifying. But that conclusion, like any other, may legitimately rest on reasonable inferences from circumstantial evidence. From (1) the substance of the text message, (2) the fact that it was sent directly to Appellant, (3) Appellant's admission that, just hours later, he armed himself with a knife, purposefully sought the victim out, and fatally stabbed her, the trial court could reasonably infer that Appellant wrongfully procured the victim's absence to prevent her from publicly accusing him of domestic abuse.4
¶7 Admissibility and relevance are independent concepts. The text message, admissible via the forfeiture by wrongdoing doctrine, was relevant to show Appellant's intent and motive for the killing. Evidence of other crimes may be admitted for purposes of establishing intent or motive for the instant offense. 12 O.S.2011, § 2404(B). Other-crimes evidence should only be admitted if (among other things) it is "probative of a disputed issue of the crime charged." Eizember v. State, 2007 OK CR 29, ¶ 76, 164 P.3d 208, 230. Intent is an essential element of First Degree Malice Murder. Motive is not an element of murder, but it can be an extremely relevant basis for circumstantial inferences about the intent of the perpetrator. See e.g. Allen v. State, 1993 OK CR 49, ¶¶ 16-17, 862 P.2d 487, 491.
¶8 The fact that Appellant killed the victim was never in dispute, but his motive and intent certainly were. Appellant claimed he killed the victim out of jealousy, because he did not want anyone else to have her. Once it discovered the text messages, the State disputed that explanation and alleged that Appellant sought to kill the victim to prevent her from reporting his domestic abuse. The victim's text message was admissible in its entirety. There was no error here.
¶9 As to Proposition VI, the Majority finds that instructions on lesser forms of homicide were properly rejected. I agree, but wish to clarify that our focus must be not on whether the evidence supports the greater charge, but on whether any rational juror could have found the lesser charge. McHam v. State, 2005 OK CR 28, ¶ 21, 126 P.3d 662, 670. In my view, the manner in which the victim was killed is not as convincing on this point as the circumstances surrounding the killing: the domestic quarrels, the fight over child support, the victim's threat to report Appellant's domestic abuse, and, of course, the fact that Appellant admitted arming himself with a knife with the express intent to stab the victim if he saw her that day.
¶10 Finally, Appellant raises several constitutional issues which were not preserved at trial. It is unclear from the Opinion whether the Majority has considered these claims using the appropriate standard of review. In concluding that these issues do not require relief, I considered whether the alleged errors were harmless beyond a reasonable doubt, and determined that they were. Miller v. State, 2013 OK CR 11, ¶ 106, 313 P.3d 934, 972-73; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
FOOTNOTES
1 Furthermore, it's not clear how this accusation shows the victim's "state of mind," or why her state of mind would be relevant. It is certainly not an expression of fear; the victim is standing up for herself, heroically telling her abuser that she will not lie to the police about his actions.
2 The reason behind the rule is summarized by Professor Wigmore:
[A defendant who procures the absence of a witness] ought of itself to justify the use of [the witness's] testimony -- whether the offering party has or has not searched for him, whether he is within or outside of the jurisdiction, whether his place of abode is secret or open; for any tampering with a witness should once [and] for all estop the tamperer from making any objections based on the results of his own chicanery.
5 Wigmore, Evidence §1405 (Chadbourn rev. 1974) (emphasis added).
3 This will not always be the case. Assume that a defendant is on trial for conjoint robbery. His text messages threatening to harm his accomplice, if the accomplice testifies for the State, might be relevant in a pretrial hearing to show why the accomplice is unavailable and why his hearsay statements should be admitted; but those messages might not be relevant in the trial itself.
4 The fact Appellant was on trial for the same "wrongdoing" that permitted introduction of the out-of-court statements in the first place is no impediment to admission. The same situation was present in Giles: the State charged the defendant with murdering his ex-girlfriend, and sought to introduce statements she had made before the killing, accusing Giles of domestic abuse and of threatening to kill her. The difference between Giles and this case is that in Giles, the statements were made to a police officer weeks before the killing. Giles, 554 U.S. at 356-57, 128 S.Ct. at 2681-82.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Court of Criminal Appeals Cases
CiteNameLevel
1988 OK CR 27, 750 P.2d 1132, RUMBO v. STATEDiscussed
1988 OK CR 296, 767 P.2d 887, LAMB v. STATEDiscussed
1989 OK CR 34, 777 P.2d 1359, HARRIS v. STATEDiscussed
1991 OK CR 41, 809 P.2d 676, SELLERS v. STATEDiscussed
1991 OK CR 121, 824 P.2d 364, BERGET v. STATEDiscussed
1992 OK CR 40, 839 P.2d 1363, BOYD v. STATEDiscussed
1993 OK CR 7, 846 P.2d 1124, WOODRUFF v. STATEDiscussed
1993 OK CR 8, 847 P.2d 368, ROMANO v. STATEDiscussed
1993 OK CR 41, 862 P.2d 1273, HOOKS v. STATECited
1993 OK CR 49, 862 P.2d 487, ALLEN v. STATEDiscussed
1994 OK CR 7, 868 P.2d 743, STATE EX REL. CORGAN v. KINGDiscussed
1994 OK CR 40, 876 P.2d 690, SIMPSON v. STATEDiscussed
1994 OK CR 44, 887 P.2d 1288, MAYES v. STATEDiscussed
1994 OK CR 71, 885 P.2d 1366, McGREGOR v. STATEDiscussed
1995 OK CR 18, 900 P.2d 363, VALDEZ v. STATEDiscussed
1995 OK CR 79, 913 P.2d 1356, PENNINGTON v. STATEDiscussed
1996 OK CR 2, 912 P.2d 878, KNIGHTON v. STATEDiscussed at Length
1996 OK CR 26, 919 P.2d 1130, HAIN v. STATEDiscussed
1996 OK CR 40, 924 P.2d 754, CHARM v. STATEDiscussed
1979 OK CR 10, 594 P.2d 771, BURKS v. STATEDiscussed
1979 OK CR 65, 597 P.2d 340, JOHNSON v. STATEDiscussed
2001 OK CR 5, 21 P.3d 1047, 72 OBJ 858, BLACK v. STATEDiscussed at Length
2001 OK CR 9, 22 P.3d 702, 72 OBJ 1068, WILLIAMS v. STATEDiscussed at Length
2001 OK CR 11, 29 P.3d 569, 72 OBJ 1205, WARNER v. STATEDiscussed
2001 OK CR 25, 32 P.3d 869, 72 OBJ 2629, CIPRIANO v. STATEDiscussed
2001 OK CR 34, 37 P.3d 908, 72 OBJ 3509, FREDERICK v. STATEDiscussed
1974 OK CR 131, 524 P.2d 793, COOPER v. STATEDiscussed
2002 OK CR 30, 53 P.3d 418, LOCKETT v. STATEDiscussed at Length
2002 OK CR 40, 60 P.3d 4, McELMURRY v. STATEDiscussed at Length
2004 OK CR 16, 88 P.3d 893, PRIMEAUX v. STATEDiscussed at Length
2004 OK CR 19, 89 P.3d 1124, DEROSA v. STATEDiscussed
2005 OK CR 28, 126 P.3d 662, McHAM v. STATEDiscussed
2006 OK CR 5, 128 P.3d 521, JONES v. STATEDiscussed at Length
2006 OK CR 12, 133 P.3d 312, MYERS v. STATEDiscussed at Length
2006 OK CR 17, 134 P.3d 150, JONES v. STATEDiscussed
2006 OK CR 45, 146 P.3d 1149, JACKSON v. STATEDiscussed
2007 OK CR 12, 157 P.3d 143, GLOSSIP v. STATEDiscussed at Length
2007 OK CR 19, 159 P.3d 272, PAVATT v. STATEDiscussed at Length
2007 OK CR 23, 164 P.3d 176, ANDREW v. STATEDiscussed at Length
2007 OK CR 27, 164 P.3d 1089, COLE v. STATEDiscussed at Length
2007 OK CR 29, 164 P.3d 208, EIZEMBER v. STATEDiscussed at Length
2007 OK CR 42, 173 P.3d 81, BALL v. STATEDiscussed
2008 OK CR 3, 177 P.3d 577, BROWN v. STATEDiscussed
2009 OK CR 1, 201 P.3d 869, JONES v. STATEDiscussed
2009 OK CR 11, 205 P.3d 1, GRANT v. STATEDiscussed
2009 OK CR 13, 206 P.3d 1020, HANSON v. STATEDiscussed
2009 OK CR 21, 218 P.3d 516, HUNT v. STATEDiscussed
2009 OK CR 31, 223 P.3d 980, SANCHEZ v. STATEDiscussed
2010 OK CR 6, 230 P.3d 888, SIMPSON v. STATEDiscussed
2010 OK CR 7, 231 P.3d 1156, LOGSDON v. STATEDiscussed
2010 OK CR 14, 235 P.3d 640, MITCHELL v. STATEDiscussed at Length
2010 OK CR 23, 241 P.3d 214, CUESTA-RODRIGUEZ v. STATEDiscussed at Length
2011 OK CR 4, 247 P.3d 1192, CUESTA-RODRIGUEZ v. STATEDiscussed at Length
2011 OK CR 6, 248 P.3d 918, HARMON v. STATEDiscussed at Length
2011 OK CR 12, 252 P.3d 221, UNDERWOOD v. STATEDiscussed at Length
2011 OK CR 15, 255 P.3d 425, ROBINSON v. STATEDiscussed
2011 OK CR 16, 251 P.3d 749, GRIMES v. STATEDiscussed at Length
2011 OK CR 17, 254 P.3d 684, CODDINGTON v. STATEDiscussed
2011 OK CR 29, 268 P.3d 86, DAVIS v. STATEDiscussed at Length
2011 OK CR 30, 267 P.3d 114, POSTELLE v. STATEDiscussed at Length
2012 OK CR 5, 272 P.3d 720, JOHNSON v. STATEDiscussed at Length
2012 OK CR 14, 288 P.3d 247, STATE v. STICEDiscussed
2013 OK CR 1, 293 P.3d 198, MALONE v. STATEDiscussed at Length
2013 OK CR 11, 313 P.3d 934, MILLER v. STATEDiscussed at Length
2015 OK CR 7, 348 P.3d 209, NEWLUN v. STATEDiscussed
2016 OK CR 3, 371 P.3d 1100, MARTINEZ v. STATEDiscussed at Length
2016 OK CR 5, 371 P.3d 1120, JACKSON v. STATEDiscussed at Length
2016 OK CR 16, 387 P.3d 928, FRIDAY v. STATEDiscussed
2016 OK CR 18, 387 P.3d 922, PULLEN v. STATEDiscussed at Length
2016 OK CR 21, 387 P.3d 934, MITCHELL v. STATEDiscussed
2017 OK CR 12, 400 P.3d 786, FREDERICK v. STATEDiscussed at Length
2018 OK CR 7, DAVIS v. STATECited
2000 OK CR 7, 999 P.2d 1082, 71 OBJ 975, Hammon v. StateDiscussed at Length
2000 OK CR 11, 4 P.3d 702, 71 OBJ 1304, Bland v. StateDiscussed at Length
1962 OK CR 41, 370 P.2d 933, GLASGOW v. STATECited
1969 OK CR 177, 455 P.2d 735, LOVELL v. STATEDiscussed at Length
1946 OK CR 12, 165 P.2d 846, 82 Okl.Cr. 31, Grindstaff v StateDiscussed
1983 OK CR 57, 665 P.2d 1186, DAVIS v. STATEDiscussed
1997 OK CR 35, 942 P.2d 736, CLEARY v. STATEDiscussed at Length
1997 OK CR 59, 947 P.2d 565, 68 OBJ 3534, Humphreys v. StateDiscussed at Length
1997 OK CR 64, 947 P.2d 1090, 68 OBJ 3623, Hooper v. StateDiscussed at Length
1997 OK CR 78, 950 P.2d 839, 69 OBJ 87, Slaughter v. StateDiscussed
1998 OK CR 7, 954 P.2d 148, 69 OBJ 592, Hemphill v. StateDiscussed
1998 OK CR 24, 970 P.2d 1158, 69 OBJ 1501, Lewis v. StateDiscussed
1998 OK CR 28, 961 P.2d 838, 69 OBJ 1803, Cannon v. StateDiscussed
1998 OK CR 39, 964 P.2d 875, 69 OBJ 2421, Jackson v. StateDiscussed at Length
1999 OK CR 22, 989 P.2d 960, 70 OBJ 1578, Washington v. StateDiscussed
1999 OK CR 31, 986 P.2d 1145, 70 OBJ 2389, Demry v. StateDiscussed
1999 OK CR 37, 989 P.2d 998, Bernay v. StateDiscussed at Length
1973 OK CR 222, 509 P.2d 675, McDANIEL v. STATEDiscussed
1973 OK CR 398, 514 P.2d 430, MARUTZKY v. STATEDiscussed
1986 OK CR 2, 712 P.2d 69, CHATHAM v. STATECited
1986 OK CR 92, 720 P.2d 1265, SWART v. STATEDiscussed
1986 OK CR 97, 721 P.2d 810, PLOTNER v. STATEDiscussed
1987 OK CR 141, 739 P.2d 1009, TEAFATILLER v. STATEDiscussed
Title 12. Civil Procedure
CiteNameLevel
12 O.S. 581, Duty Not to Converse and Not to Form or Express an Opinion on Any Subject of the TrialCited
12 O.S. 2103, Scope of RulesCited
12 O.S. 2404, Character Evidence Not Admissible to Prove Conduct - Exceptions - Other CrimesDiscussed
12 O.S. 2611, Mode and Order of Interrogation and PresentationCited
12 O.S. 2703, Bases of Opinion Testimony by ExpertsDiscussed
12 O.S. 2705, Disclosure of Facts or Data Underlying Expert OpinionDiscussed
12 O.S. 2803, Hearsay Exceptions - Availability of Declarant ImmaterialDiscussed at Length
12 O.S. 2804, Hearsay Exception - Declarant UnavailableDiscussed
Title 20. Courts
CiteNameLevel
20 O.S. 3001.1, Setting Aside Judgment on Ground of Misdirection of Jury or Error in Pleading or ProcedureCited
Title 21. Crimes and Punishments
CiteNameLevel
21 O.S. 701.7, Murder in the First DegreeDiscussed at Length
21 O.S. 701.8, Second Degree MurderCited
21 O.S. 701.12, Aggravating CircumstancesDiscussed at Length
21 O.S. 701.13, Review of Death Penalty SentenceCited
21 O.S. 711, First Degree ManslaughterCited
Title 22. Criminal Procedure
CiteNameLevel
22 O.S. 659, Classification of Particular Causes of ChallengeCited
22 O.S. 991a, Sentence - Powers of the CourtDiscussed at Length
22 O.S. 991b, Revocation in Whole or in Part of Suspended Sentence - Hearing - ReviewCited
Title 57. Prisons and Reformatories
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-6-2007
Piscataway v. Duke Energy
Precedential or Non-Precedential: Precedential
Docket No. 05-4521
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Recommended Citation
"Piscataway v. Duke Energy" (2007). 2007 Decisions. Paper 851.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/851
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4521
TOWNSHIP OF PISCATAWAY; ALLEN HOWARD;
PEGGY FRIEDMAN; ROBERT HESELTINE;
GAIL HESELTINE; EDWIN MARKANO;
WILLIAM MALLEK; GUY SUABEDISSEN;
TIMOTHY SIMMONDS; PATRICIA SIMMONDS;
JUDITH PAYNE; MICHAEL MATUCH;
DONNA MATUCH; THERESA FLEMING;
ANGELO BARISO; CHARLENE BARISO;
KYLLENE COX; NORMAN HERMAN; LIBBY HERMAN;
NAOMI SHAPIRO; JOEL SHAPIRO
v.
DUKE ENERGY; TEXAS EASTERN TRANSMISSION,
CORP., Appellants
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 01-4828)
District Judge: Honorable Faith S. Hochberg
Argued November 27, 2006
Before: FUENTES and GARTH, Circuit Judges, and POLLAK,*
District Judge
*
The Honorable Louis H. Pollak, U.S. District Judge for
the Eastern District of Pennsylvania, sitting by designation.
(Filed: June 6, 2007)
Edwin C. Landis, Jr. (Argued)
William H. Schmidt, Jr.
Meyner & Landis, LLP
One Gateway Center, Suite 2500
Newark, NJ 07102
Counsel for Appellants
Steven D. Cahn (Argued)
Cahn & Parra, LLC
1015 New Durham Road
Edison, NJ 08817
Counsel for Appellees
_____
OPINION OF THE COURT
FUENTES, Circuit Judge.
This action was initiated by the Township of Piscataway
and a group of homeowners to prevent Duke Energy Operating
Company, LLC (“Duke”) and Texas Eastern Transmission, LP
(“Texas Eastern”) from removing fifty shade trees planted along
a public street in Piscataway, New Jersey. The companies
claimed that it was necessary to remove the trees for the safe
inspection and maintenance of three high-pressure, natural gas
pipelines located beneath the street. After the Township settled
with Duke and Texas Eastern, the companies and the
homeowners cross-moved for summary judgment. The District
Court ruled in favor of the homeowners and permanently
enjoined Duke and Texas Eastern from removing the trees.
Because we conclude that there are genuine issues of material
2
fact as to (1) whether removal of the trees is reasonably
necessary to the maintenance of the pipelines, and (2) whether
Duke and Texas Eastern are barred by the doctrine of laches
from asserting a right to remove the trees pursuant to an
easement grant, we will vacate the District Court’s judgment and
remand for further proceedings.
I.
In the early 1940s, Flora and H. Morgan Heath,
predecessors-in-title to the homeowners in this lawsuit, took title
to a large tract of undeveloped land located in the Township of
Piscataway (the “Heath property”).1 In May 1944, the Heaths
granted Defense Plant Corporation (“Defense Plant”), and its
successors and assigns, “the right to lay, operate, renew, alter,
inspect and maintain” two pipelines for the transportation of
natural gas. App. at 72. The 1944 grant required Defense Plant:
to bury such pipelines so that they will not
interfere with the cultivation or drainage of the
land, and also to pay any and all damages to stock,
crops, fences, timber and land which may be
suffered from the construction, operation, renewal,
alteration, inspection or maintenance of such
pipelines.
Id. Defense Plant subsequently constructed two twenty-inch
diameter natural gas pipelines.
In the years that followed, Max and Mildred Richter and
Ethel and Philip Gerber assumed title to the Heath property, and
Texas Eastern Transmission Corporation (“TETCO”) succeeded
to Defense Plant’s easement rights. In January 1960, the
Richters and Gerbers granted TETCO the right to construct a
1
In the Final Pretrial Order entered by the District Court
on November 25, 2003, the parties to this appeal stipulated that
the Heaths, as the original grantors of the easement, are
predecessors-in-title to the homeowners in this case.
3
third pipeline across the property. The 1960 grant imposed the
following restrictions on the parties:
The said Grantor is to fully use and enjoy
the said premises, except for the purposes granted
to [TETCO] and provided the said Grantor shall
not construct nor permit to be constructed any
house, structures or obstructions on or over, or that
will interfere with the construction, maintenance or
operation of, any pipe line or appurtenances
constructed hereunder, and will not change the
grade over such pipe line.
[TETCO] agrees to bury all pipes to a
sufficient depth so as not to interfere with
cultivation of soil, and agrees to pay such damages
which may arise to growing crops, timber, or
fences from the construction, maintenance and
operation of said lines.
App. at 74. TETCO then constructed a third, thirty-six-inch
diameter pipeline.
Over the next several years, the Heath property passed
through the hands of a number of different owners. In February
1963, three real estate development companies that then owned
the property entered into an agreement with TETCO in which
TETCO agreed to reduce the size of the easement by releasing
all portions of the land in the 1944 and 1960 grants not needed
for the pipelines. Attached to the 1963 agreement is a drawing
prepared by TETCO, which shows a proposed residential
neighborhood (referred to as “University Hill”) through which
TETCO’s sixty-foot wide easement runs at a slight diagonal.
The 1963 agreement preserved all of the rights and restrictions
set forth in the 1944 and 1960 grants.2 Sometime thereafter,
appellant Texas Eastern succeeded to TETCO’s easement rights,
2
All three instruments are hereinafter collectively
referred to as “the easement grant.”
4
and later became an affiliate of appellant Duke.3
As a result of residential development of the property, the
land on which the easement is located became a one-block long
public street named Fountain Avenue. The street is flanked by a
large number of trees, many of which were planted in the early
1960s as part of the original residential development of the
neighborhood and have grown to nearly seventy-five feet in
height. The homeowner-appellees live in single-family homes
built by the developers on lots adjacent to Fountain Avenue.
Though all of the trees at issue in this appeal are located on
Township property, the homeowners view the trees, from a
practical and aesthetic perspective, as extensions of their front
yards.
In April 2000, Duke announced that it would be removing
approximately eighty trees from Fountain Avenue in order to
better maintain the pipelines. Township residents vehemently
opposed the proposed action. In October 2001, after several
attempts to negotiate an agreement with Duke failed, the
Township and the homeowners sued for injunctive relief in the
Superior Court of New Jersey, Middlesex County, Chancery
Division. The verified complaint asserted state law causes of
action for trespass, breach of easement, and nuisance. The
Superior Court immediately entered a preliminary injunction
prohibiting Duke from removing the trees on Fountain Avenue.
Duke thereafter removed the matter to federal court based
on diversity jurisdiction. In its answer, Duke denied the
allegations set forth in the verified complaint, and
counterclaimed for injunctive relief prohibiting the Township
and the homeowners from interfering with their rights under the
easement grant. In May 2002, the District Court denied Duke’s
motion for a preliminary injunction and noted that the state court
3
Texas Eastern owns the easement and pipelines. Duke
is responsible for inspecting and maintaining the pipelines. For
the sake of convenience, we refer to appellants collectively as
“Duke.”
5
preliminary injunction prohibiting removal of the trees remained
in effect.
In March 2003, the Township settled with Duke and
consented to the immediate removal of fifty-five trees from
Fountain Avenue, as well as to the future removal of any trees
that exceed eight inches in diameter. The homeowners
proceeded with the action and, following a hearing on April 26,
2005, the District Court denied the homeowners’ request for a
jury trial and dismissed the trespass claim. The District Court,
however, held that the homeowners had standing to pursue the
remaining breach of easement and nuisance claims. After
discovery, the parties filed cross-motions for summary judgment
on their respective breach of easement claims.
On September 20, 2005, the District Court granted the
homeowners’ motion for summary judgment and denied Duke’s
cross-motion for summary judgment on the parties’ respective
breach of easement claims. The Court concluded that Duke
failed to proffer any evidence that removal of the trees was
“reasonably necessary” to the maintenance of the pipelines. In
addition, the District Court found that Duke was barred by the
doctrine of laches from asserting a right to remove the trees
pursuant to the terms of the easement grant. Accordingly, the
District Court permanently enjoined Duke from removing any of
the trees from Fountain Avenue.4
This timely appeal followed. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over standing issues, Gen. Instrument Corp. v. Nu-Tek
Elecs. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir. 1999), as well as a
district court’s summary judgment ruling, Mortellite v. Novartis
Crop Prot., Inc., 460 F.3d 483, 488 n.3 (3d Cir. 2006).5
4
The District Court noted in its opinion that
circumstances might change so as to justify Duke’s removal of
the trees in the future.
5
We note that after the Court heard oral argument in this
matter, the parties consented to have the case referred to
6
II.
After first addressing Duke’s contention that the
individual homeowners lack standing to bring this action, we
turn to the District Court’s rulings on the issues of reasonable
necessity and laches.
A.
The doctrine of standing encompasses both constitutional
requirements and prudential considerations. Miller v. Nissan
Motor Acceptance Corp., 362 F.3d 209, 221 (3d Cir. 2004). The
constitutional component derives from the Article III “case or
controversy” requirement and has three elements:
(1) the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest
which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;
(2) there must be a causal connection between the
injury and the conduct complained of—the injury
has to be fairly traceable to the challenged action
of the defendant and not the result of the
independent action of some third party not before
the court; and (3) it must be likely, as opposed to
merely speculative, that the injury will be
redressed by a favorable decision.
Trump Hotels & Casino Resorts v. Mirage Resorts, 140 F.3d
478, 484-85 (3d Cir. 1998) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). “These requirements
ensure that plaintiffs have a personal stake or interest in the
outcome of the proceedings” sufficient to justify federal court
intervention. Joint Stock Soc’y v. UDV N. Am., Inc., 266 F.3d
164, 175 (3d Cir. 2001) (internal quotation marks omitted).
mediation. Mediation was not successful, and we now issue our
opinion.
7
Prudential standing “constitute[s] a supplemental aspect
of the basic standing analysis and address[es] concerns regarding
the need for judicial restraint.” Oxford Assoc. v. Waste Sys.
Auth., 271 F.3d 140, 145 (3d Cir. 2001). Thus, “[w]e . . . use the
prudential limits of standing to ensure that only those parties
who can best pursue a particular claim will gain access to the
courts.” Id. Prudential standing rests on the following
principles:
(1) the plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third
parties; (2) even when the plaintiff has alleged
redressable injury sufficient to meet the
requirements of Article III, the federal courts will
not adjudicate abstract questions of wide public
significance which amount to generalized
grievances pervasively shared and most
appropriately addressed in the representative
branches; and (3) the plaintiff’s complaint must
fall within the zone of interests to be protected or
regulated by the statute or constitutional guarantee
in question.
Trump Hotels & Casino Resorts, 140 F.3d at 485 (internal
quotation marks and citations omitted).
Duke contends that the homeowners do not have standing
to enforce the terms of the easement grant because the
homeowners were neither parties to the grant, nor owners of the
land that is subject to its terms. We are not persuaded by Duke’s
argument and conclude that the homeowners have standing to
pursue this action.6
6
It is not entirely clear from Duke’s brief whether they
are arguing that the homeowners lack standing to bring this
action, or that they do not have a cause of action under state law.
See 13 Charles Alan Wright, Arthur R. Miller, Edward H.
Cooper & Richard D. Freer, Federal Practice and Procedure §
8
The fifty trees that Duke wishes to remove are located in
front of the homeowners’ property. In affidavits submitted to
the District Court, the homeowners stated that they purchased
their homes in part because of the economic and aesthetic value
of the trees. Expert reports and certifications submitted to the
District Court attest that the trees add to the value of the
homeowners’ property, help reduce air pollution, improve air
quality, and provide cooling shade which reduces energy costs in
the summer months. As the District Court observed, given the
age and size of the trees, they are effectively irreplaceable.
Removing the trees would cause actual injury to the
homeowners, and a judicial determination that Duke cannot
lawfully engage in the proposed conduct would unquestionably
prevent that injury. Accordingly, we agree with the District
Court that the homeowners have standing to pursue this action.
We also note that the homeowners have a cause of action
under New Jersey law. As New Jersey’s highest court stated in
Clarke v. Kurtz, 196 A. 727, 728 (N.J. 1938):
[W]hen it appears by the true construction of the
terms of a grant that it was the well-understood
purpose of the parties to create or reserve a right . .
. for the benefit of other land owned by the grantor
. . . any grantee of the land to which such right is
appurtenant acquires by his grant a right to have
the servitude or easement . . . protected in equity . .
..
See also, Roehrs v. Lees, 429 A.2d 388, 391 (N.J. Super. Ct.
App. Div. 1981) (“The judge properly ruled that plaintiff had the
burden of demonstrating that the covenant was intended for his
benefit and that defendants were aware of its existence and of its
3531 & n.7 (2d ed. 1984 & Supp. 2007) (noting that existing
case law sometimes conflates the concepts of standing and cause
of action). Because the homeowners plainly satisfy both
requirements, we see no need to comment on the distinction
between standing and stating a cause of action.
9
purpose to benefit plaintiff. Once that burden had been met
plaintiff was entitled to enforce the covenant for his benefit . . .
.”); Mango v. Brodsko, 108 A.2d 879, 880 (N.J. Super Ct. Ch.
Div. 1954) (“Generally, a restrictive covenant imposed upon
land by a grantor in a conveyance of a portion of a tract of land,
if such restrictions are for the benefit of the balance of the land
retained by the grantor, may be enforced by him or a subsequent
grantee of the whole or a part of said retained land.”).
In this case, the restrictions set forth in the easement grant
were clearly intended by the original grantor, the homeowners’
predecessors-in-title, to benefit the land by ensuring that the
pipelines would not unduly interfere with the cultivation and
development of the property. The homeowners took title to their
homes with notice of the easement grant, and the rights and
restrictions set forth in the grant. It is reasonable to infer from
the drawing attached to the 1963 agreement that when TETCO,
Duke’s predecessor-in-title, executed the agreement, it was
aware that the owners of the property—three real estate
development companies—planned to build a residential
neighborhood through which the pipelines would run. Based on
these facts, the individual homeowners have a cause of action
under New Jersey law.7
B.
We now turn to (1) whether removal of the trees on
Fountain Avenue is “reasonably necessary” to Duke’s
maintenance of the pipelines, and (2) whether Duke is barred by
the doctrine of laches from asserting a right to remove the trees
pursuant to the terms of the easement grant.
7
As the homeowners have a cause of action under New
Jersey law, they plainly satisfy the requirements of prudential
standing. See Trump Hotels & Casino Resorts, 140 F.3d at 485
(noting that in order to satisfy the requirements of prudential
standing, a litigant must “assert his own legal rights and
interests”).
10
1.
Duke operates the pipelines and maintains the easement
pursuant to certificates of public convenience and necessity
issued by the Federal Energy Regulatory Commission (“FERC”).
The Company is subject to regulation by FERC under the
Natural Gas Act, 15 U.S.C. § 717, and by the Department of
Transportation (“DOT”) under the Natural Gas Pipeline Safety
Act, 49 U.S.C. § 60101. Applicable regulations require Duke to
inspect the pipelines on a regular basis, but do not prescribe a
particular method of inspection. See 49 C.F.R. § 192.705
(2006).
Duke has promulgated a set of Standard Operating
Procedures (“SOPs”) that meet and, in some cases, exceed
federal requirements. Pursuant to its SOPs, Duke typically
conducts aerial surveillance of the easement three times per
week in order to identify any encroachments on or near the
pipeline right-of-way, as well as any distressed vegetation that
might indicate a gas leak. Duke also routinely patrols the
pipeline right-of-way by car.
Every few years, Duke inspects the pipelines using a
device referred to in the industry as a “smart pig,” which is
placed inside the pipelines to measure the thickness of the
pipeline walls. Because of the difficulty and expense associated
with its use, the smart pig is not deployed on a routine basis. As
of May 2006, the date the parties briefed this appeal, the smart
pig had last been used to inspect the Fountain Avenue portion of
the pipelines in 2003 and 2004, at which time no irregularities or
weaknesses in the walls were detected.
In addition, the state of New Jersey has implemented a
“One-Call System,” which requires contractors to notify the state
several days prior to the start of any excavation project. Duke
and other pipeline operators are required by the One-Call System
to respond to any such notification and to work with the
contractors to ensure that the pipelines are not damaged or
disturbed in the course of excavation. See N.J. Stat. Ann. §§
48:2-73 to -91 (1998 & Supp. 2007).
11
The easement grant explicitly confers upon Duke the right
to inspect and maintain the pipelines, but does not specify
whether that right includes the authority to remove trees or
foliage from the pipeline right-of-way. Even in the absence of
an express right, however, “there is, arising out of every
easement, an implied right to do what is reasonably necessary for
its complete enjoyment, that right to be exercised, however, in
such reasonable manner as to avoid unnecessary increases in the
burden upon the landowner.” Tide-Water Pipe Co. v. Blair
Holding Co., 202 A.2d 405, 412 (N.J. 1964). As the New Jersey
Supreme Court has explained, “the touchstone is necessity and
not convenience.” Hammett v. Rosensohn, 140 A.2d 377, 383
(N.J. 1958).
Duke asserts that removal of the trees is reasonably
necessary for inspection and maintenance of the pipelines. More
specifically, Duke contends that (1) the trees prevent it from
conducting aerial surveillance of the pipeline right-of-way; (2)
the trees impede emergency access to the pipelines in the event
of an unexpected and potentially devastating pipeline
emergency; and (3) root growth from the trees is damaging the
protective coating of the pipelines thereby increasing the
possibility of a dangerous gas leak or explosion.
a) Aerial Surveillance
The District Court found that Duke “proffer[ed] no
evidence that airplanes could not see construction equipment
through the trees’ branches, and they proffer[ed] no facts to
demonstrate that land surveillance, in combination with the
warning signs against construction on Fountain Avenue
(required by law) and the Township’s ability to regulate
construction on its property, is ineffective to give them notice
regarding safety and maintenance of the pipelines.” App. at 25.
We disagree, and conclude that Duke introduced sufficient
evidence to raise a triable issue as to whether aerial surveillance
is reasonably necessary to the maintenance of the pipelines and,
if so, whether the Fountain Avenue trees prevent such
surveillance.
12
For example, Duke presented an expert report prepared by
Terry Mock, a right-of-way consultant with experience in the
utilities industry. Mock stated in his report:
While the [DOT] Regulations allow that the Right-
of-Way can be inspected by Walking, Driving or
Flying, Pipeline Companies utilize airplanes to
comply with the inspection of there [sic] Right-of-
Way because they are the least obtrusive, and most
efficient means to perform this task.
Patrol Planes are looking for distressed vegetation
that might indicate a leak or release of product . . .
.
Patrol Planes are looking for encroachment
activities that affect the safe operation of the
pipeline. The pilots are inspecting conditions on
and adjacent to the Right-of-Way. Construction
activity that is taking place on the Right-of-Way
without a one-call notice is too late . . . when a
pilot observes activity approaching the Right-of-
Way, that activity can be reported and investigated
before the threat reaches the Right-of-Way.
App. at 360-62.
According to the certified statement of Don Thompson, a
Right-of-Way Supervisor for Duke Energy:
The most effective way to patrol the pipeline on a
regular basis (i.e. three (3) times a week, weather
permitting) is by air. Inspection by “drive by”
alone is not as effective because of parked
vehicles, blockage of lateral view by vegetation
and the difficulty in observing dying grass or other
vegetation (indicating gas leaks) from a horizontal
view. “Drive by” inspections are also cost
prohibitive.
13
App. at 486.
Duke also submitted to the District Court “Special Report
281,” prepared in 2004 by the Transportation Research Board of
the National Academies,8 which states:
Companies are required by federal regulation to
inspect their rights-of-way on a regular basis; they
often do so by using aircraft, especially for
properties lacking public access. Without regular
clearing of the rights-of-way, such inspection can
be ineffective.
App. at 532.
In addition, the Pre-Trial Order entered by the District
Court indicated that Duke intended to present Steven Warner, a
Duke pilot, as a trial witness who would “testify pertaining to
tree cover making him unable to observe the Easement from the
air.” App. at 656.
This evidence, of course, does not necessarily establish
that aerial surveillance is necessary to the safe maintenance of
the pipelines, as opposed to being more convenient or cost-
effective than land surveillance. On a motion for summary
judgment, however, Duke must only proffer evidence sufficient
to raise a genuine issue for trial. We think Duke has done so,
and that the evidence Duke has presented justifies a full hearing
on the merits of their argument.
b) Emergency Access
8
The Transportation Research Board of the National
Academies is a division of the National Academy of Sciences, a
private, nonprofit society of scholars engaged in scientific and
engineering research. According to Special Report 281, “[o]n
the authority of the charter granted to it by the Congress in 1863,
the Academy has a mandate that requires it to advise the federal
government on scientific and technical matters.” App. at 498.
14
The District Court likewise rejected Duke’s contention
that the Fountain Avenue trees prevent them from gaining quick
access to the pipelines in the event of an emergency. The sole
explanation offered by the District Court was that “[n]o evidence
has been proffered regarding what trees are currently in the way
or that any such tree could not be quickly removed in the event
of an emergency.” App. at 26.
Duke points out that in settling with the Township, it
agreed to remove only the fifty-five trees that posed the greatest
danger to the pipelines. According to the certified statement of
Tim Vaughan, Duke’s Area Superintendent in New Jersey, it is
these trees “that can result in an inspection missing dangerous
earthmoving or other construction activities in the Right of Way
Grant. In the event of an emergency, these same trees can cause
life threatening delays when we must gain quick access to the
Pipelines.” App. at 161. As with Duke’s evidence concerning
its inability to effectively inspect the pipeline right-of-way by
air, we conclude that the evidence in the record concerning
emergency access to the pipelines raises a factual issue that is
properly resolved at trial.
c) Root Growth
With respect to alleged dangers posed by root growth, the
District Court stated:
[Duke] proffered no evidence during discovery
that any of the tree roots that have been on
Fountain Avenue for forty years are rubbing
against the pipelines; have proffered no evidence
as to how long after excavation the “atypical” root
growth will continue; and no proffer of any test on
the roots of the five trees that have recently been
cut down on Fountain Avenue (with the consent of
some residents) to determine if they had reached or
were in fact rubbing against the pipeline.
App. at 26. Although the District Court raises significant
concerns, there is also substantial evidence in the record
15
suggesting that the tree roots nevertheless pose a significant
threat to the integrity of the pipelines. For example, Duke’s
expert, Terry Mock, stated in his report:
[R]oots do atypical things in a pipeline
environment. The friction of the gas/product
moving through the pipeline causes the soil
temperatures to be warmer along the pipeline. . . .
Pipelines are constructed by excavating a
ditch/trench into the soil, many times into
undisturbed soil. Making those undisturbed areas
now disturbed. . . . The soils have be[en]
oxygenated by the disturbance, and the nutrients in
the topsoil were mixed throughout the ditch/trench
. . . thus providing for an environment that
promotes tree development. . . . You’ll find root
development at deeper depths than typical. . . .
Not only does a pipeline environment allow tree
roots to do atypical things, I believe those factors
attract tree roots to develop around and along the
pipeline. . . . As the tree root becomes in contact
with the pipeline it damages the protective
coatings. . . . Over time the coating will be
damaged to [the] point that [it] will be rendered
useless.
App. at 379-83; 390; 392-93.
Mock further stated:
In my professional opinion, both from my
horticulture background and my experience in the
Right-of-Way profession in the pipeline industry, I
strongly believe that the trees along Fountain
Avenue interfere with the Operation and
Maintenance of the pipeline. The trees have the
ability to cause the pipeline company to be out of
compliance with the Federal Regulations which
they operate under.
16
App. at 434-35.
Moreover, we think the District Court overlooked
evidence that would explain Duke’s decision not to conduct root
tests on either the existing Fountain Avenue trees or the five
trees that were removed from Fountain Avenue in December
2004 with the consent of the parties.9 According to the certified
statement of Vaughan, Duke’s Area Superintendent, for
example:
15. On every occasion of actual exposure of the
pipes and my inspection of them, the critical
protective coating has been discovered to be very
brittle and fragile.
16. If roots are in contact with this brittle and
fragile coating, it is almost a certainty that any
disturbance of the roots proximate to the pipe will
result in a breach of the coating.
17. It is for this reason that the decision was made,
with my full agreement, not to excavate the root
system of any of the trees recently removed on
Fountain Avenue.
....
19. Because I anticipated root contact with the
pipes [on Fountain Avenue], I realized that digging
into a root system would probably result in a
9
On December 17, 2004, Duke filed an unopposed
motion with the District Court to partially vacate the state court’s
preliminary injunction so as to permit them to remove five trees
pursuant to the terms of the settlement agreement with the
Township. The District Court granted Duke’s request on
January 27, 2005. Duke removed the trees by cutting them down
and grinding the remaining stumps to ground-level, but left the
roots of the trees intact.
17
breach of the coating system which would
necessitate replacement of the coating system.
....
22. The correct way to deal with the Fountain
Avenue situation is to stop the roots from growing
by cutting down the trees. That will prevent future
growth of the roots that could damage the coatings.
App. at 478-79. In view of this evidence, we conclude that a full
hearing on the dangers posed by root growth is appropriate.
In sum, we conclude that because there is a triable issue
of fact as to whether removal of the trees is reasonably necessary
to Duke’s maintenance of the pipelines, the District Court should
not have entered summary judgment in favor of the
homeowners.
2.
The District Court also ruled that Duke was barred by the
doctrine of laches from asserting a right to remove the trees
pursuant to the terms of the easement grant. Specifically, the
District Court found that Duke’s “forty-year delay” in asserting a
right to remove the trees was inexcusable and prejudicial to the
homeowners, who purchased their homes believing that the trees
would remain on Fountain Avenue and thereby contribute to
their use and enjoyment of their property.
Under New Jersey law, laches is “an equitable defense
that may be interposed in the absence of the statute of
limitations.” Lavin v. Bd. of Ed., 447 A.2d 516, 519 (N.J.
1982). “Laches may only be enforced when the delaying party
had sufficient opportunity to assert the right in the proper forum
and the prejudiced party acted in good faith believing that the
right had been abandoned.” Knorr v. Smeal, 836 A.2d 794, 800
(N.J. 2003). “The key factors to be considered in deciding
whether to apply the doctrine are the length of the delay, the
18
reasons for the delay, and the ‘changing conditions of either or
both parties during the delay.’” Id. (quoting Lavin, 447 A.2d at
520). These are factual determinations that typically should be
made after a full evidentiary hearing. See, e.g., 27A Am. Jur. 2d
Equity § 201 (1996) (“Where a defendant asserts the laches
defense, a full hearing of testimony on both sides of the issue is
required.”).
In its decision, the District Court rejected, out of hand,
Duke’s proffered explanation for not seeking to remove the trees
prior to April 2000. In the District Court’s words, “[Duke’s]
explanation for this delay is that they have increased the
stringency of their SOPs beyond that legally required by safety
standards, an event completely within [Duke’s] control.
Stringent procedures are laudable, but [Duke] can produce equal
results with ground surveillance as with aerial surveillance.”
App. at 30. There is, however, significant evidence in the record
that would explain Duke’s failure to remove the trees prior to
April 2000.
For example, Thompson, Duke’s Right of Way Manager,
offered the following explanations in his certified statement:
4. Due to advances in safety technology and
lessons learned from accident experiences
nationwide over time, safety standards for the
pipeline industry have continually evolved over the
years I have worked in the industry.
5. While Duke has always been diligent in terms
of pipeline safety and has maintained internal
safety procedures (SOPs) and Guidelines that
exceed the minimum required by the U.S.
Department of Transportation, Office of Pipeline
Safety, Duke became even more diligent in its
safety standards following (a) the explosion that
occurred in its right-of-way located in Edison,
New Jersey on March 23, 1994 and (b) integrity
management program regulations (the “Integrity
Management Regulations”) promulgated by the
19
DOT which became effective in February 2004.
The Edison accident was caused by third party
damage to the pipe there.
6. [Duke’s Guideline TG-010] states that
“[p]lanting of trees is not permitted on the pipeline
right-of-way,” [and] “[p]lanting of shrubs, bushes
or other plants associated with landscaping on the
pipeline right-of-way is subject to Company
approval and shall not exceed 4 feet in height.”
7. These requirements are fully consistent with
industry standards and are substantiated by recent
research on the subject.
....
12. Duke, Texas Eastern and other affiliates of
Duke operate approximately 18,000 miles of high
pressure natural gas pipelines. In 1992, Texas
Eastern started a program to improve pipeline
safety by more thoroughly clearing right of way.
App. 484-86.
Duke introduced other evidence to explain why it did not
seek to remove the trees before 2000. For example, Special
Report 281 discusses recent pipeline failures and accidents, as
well as the industry’s response to these incidents:
Excavation and construction-related damage to
pipelines remain the leading causes of pipeline
failure. Such failures in 2003 were estimated by
USDOT to contribute 22 percent of hazardous
liquids and 24 percent of natural gas transmission
pipeline incidents.
....
Recently [the Office of Pipeline Safety]
20
implemented the Integrity Management Program, a
regulatory approach that requires pipeline
operators to comprehensively assess, identify, and
address the safety of pipeline segments that are
located in areas where the consequences of a
pipeline failure could be significant.
....
On March 23, 1994, a 36-inch-diameter pipeline
owned and operated by Texas Eastern
Transmission Corporation ruptured
catastrophically in Edison Township, New Jersey .
. . The force of the rupture and of natural gas
escaping at a pressure of about 970 pounds per
square inch gauge excavated the soil around the
pipe and blew gas hundreds of feet into the air,
propelling pipe fragments, rocks, and debris more
than 800 feet. Within 1 to 2 minutes of the
rupture, the gas ignited, sending flames upward
400 to 500 feet. Heat radiating from the massive
fire ignited several building roofs in a nearby
apartment complex. Occupants, alerted to the
emergency by noises from escaping gas and rocks
hitting the roofs, fled from the burning buildings.
The fire destroyed eight buildings. Approximately
1,500 apartment residents were evacuated.
Although none of the residents suffered a fatal
injury, response personnel evacuated 23 people to
a local hospital and another 70 apartment residents
made their own way to hospitals.
....
The final rule for integrity management of
natural gas transmission pipelines in high-
consequence areas went into effect in February
2004. This rule requires operators of natural gas
transmission pipelines to develop integrity
management programs for pipelines located where
21
a leak or rupture could do the most harm (i.e.,
could affect high-consequence areas). The rule
requires gas transmission pipeline operators to
perform ongoing assessment of pipeline integrity;
to improve data collection, integration, and
analysis; to repair and remediate the pipeline as
necessary; and to implement preventive and
mitigative actions.
App. at 512; 513; 524; 609. In light of these newly promulgated
standards, as well as the greater attention paid to pipeline safety
as a result of recent catastrophes, we believe the evidence is
sufficiently compelling to create a genuine issue for trial on the
homeowners’ laches defense to Duke’s breach of easement
claim.
III.
We recognize that a bench trial on the merits could result
in precisely the same outcome should the District Court, after a
full evidentiary hearing, conclude that removal of the trees is not
reasonably necessary to the safe maintenance of the pipelines, or
that Duke’s decision not to seek removal of the trees prior to
April 2000 bars it from doing so now.10 Nevertheless, we
conclude that such a determination should only be made after the
parties have the opportunity to fully develop the factual record at
10
We note that the parties also moved for summary
judgment on the issue of whether the provision of the easement
grant that prohibited Duke and Texas Eastern from interfering
with the “cultivation” of the land applied to the removal of trees.
In addition, at the invitation of the District Court, Duke filed a
Fed. R. Civ. P. 12(b)(6) motion challenging the homeowners’
nuisance claim. Because the District Court ruled in favor of the
homeowners on the breach of easement claim, it concluded that
it did not need to reach the “cultivation” issue or Duke’s Rule
12(b)(6) motion. On remand, the District Court may find that it
is necessary to rule on these issues before proceeding to trial.
22
trial.11
For the foregoing reasons, we will vacate the judgment of
the District Court and remand for further proceedings consistent
with this opinion.
11
For the same reasons, we reject Duke’s argument that
the District Court should have entered summary judgment in its
favor on the breach of easement claim.
23
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 7, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40973
PIGGLY WIGGLY CLARKSVILLE, INC., ET AL.,
Plaintiffs,
PIGGLY WIGGLY CLARKSVILLE, INC.; ABRAHAM’S
FOOD TOWN, INC.; STAGGERS OIL COMPANY OF
LOUISIANA; DANDY DOODLE, INC., doing business
as Howdy Doody Food Store,
Plaintiffs-Appellants,
versus
INTERSTATE BRANDS CORP., doing business as
Dolly Madison Bakery,
Defendant-Appellee.
Appeal from the United States District Court for
the Eastern District of Texas
(USDC No. 3:96-CV-51)
_______________________________________________________
Before KING, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
*
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.
Plaintiffs Piggly Wiggly Clarksville, Inc. et al. bring this interlocutory appeal of
the district court order denying class certification under Rule 23(b)(3). We affirm.
“[T]he district court maintains great discretion in certifying and managing a class
action. We will reverse a district court’s decision to certify a class only upon a showing
that the court abused its discretion, or that it applied incorrect legal standards in reaching
its decision.” Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)
(citations omitted). The decision turns on the unique facts of each case. Bell Atlantic
Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir. 2003).
The district court, in a cogent opinion, held that the predominance requirement of
FED. R. CIV. P. 23(b)(3) was not met, because individualized proof would be required to
establish the amount of damages as to each class member and whether each class member
could take advantage of the fraudulent concealment doctrine to extend the limitations
period. Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp., 215 F.R.D. 523, 528
(E.D. Tex. 2003). Rule 23(b)(3) provides that a class may be certified if, among other
requirements, “the court finds that the questions of law or fact common to the members of
the class predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for the fair and efficient adjudication of
the controversy.”
The district court applied the correct legal standards, and we cannot say that it
abused its discretion in denying class certification.
A. Calculation of Damages
2
The necessity of calculating damages on an individual basis, by itself, can be
grounds for not certifying a class. Bell Atlantic, 339 F.3d at 308 (5th Cir. 2001) (holding
that “class certification is not appropriate” because plaintiffs “failed to demonstrate that
the calculation of individualized actual economic damages, if any, suffered by the class
members can be performed in accordance with the predominance requirement of Rule
23(b)(3)”); O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 745 (5th Cir.
2003) (holding that district court abused its discretion in certifying class “[i]n light of the
individual calculation of damages that is required”); Allison v. Citgo Petroleum Corp.,
151 F.3d 402, 419 (5th Cir. 1998) (holding that certification under Rule 23(b)(3) was not
appropriate because “plaintiffs’ claims for compensatory and punitive damages must
therefore focus almost entirely on facts and issues specific to individuals rather than the
class as a whole”).
We have held that a district court did not abuse its discretion in certifying a class
action where “calculating damages will require some individualized determinations,” and
“virtually every issue prior to damages is a common one.” Bertulli v. Indep. Ass’n of
Continental Pilots, 242 F.3d 290, 298 (5th Cir. 2001). However, Bertulli merely held that
the district court had not abused its discretion; it does not hold that the calculation of
damages can never be a grounds for denying class certification. Bertulli is also
distinguishable because the court noted that “for the vast majority of plaintiffs . . . .
damages will be nominal and their primary relief will be injunctive.” Id. at 299.
“Importantly, in Bertulli, the court recognized the plaintiffs’ claims for injunctive relief
3
on top of money damages, noting that ‘not all of the relief requires individualized
determination.’” O’Sullivan, 319 F.3d at 745 n.27 (quoting Bertulli, 242 F.3d at 298).
On the issue of damages, the district court in the pending case concluded that
individualized determination would be required because many of the class members
negotiated a price rather than being charged strictly on price lists. The court reasoned
that
[e]ven if the bidding process used by school districts and private label
purchasers originally began with a wholesale price list that was fixed, the
final price paid involved many factors including the amount of products
purchased, the geographic market, the particular services included with
each purchase, delivery costs, the discount negotiated off the wholesale
price list, and potentially the negotiating skills of the purchaser and the
sales representative.
215 F.R.D. at 530-31. Plaintiffs do not persuade us that these factors are irrelevant to the
damages suffered by individual class members.
The courts have long held in antitrust cases that once the fact of damages is
proven, there is a relaxed burden of proving the amount of damages. See Pierce v.
Ramsey Winch Co., 753 F.2d 416, 435 (5th Cir.1985). “But this tolerant view is limited
by our responsibility not to allow damages to be determined by ‘guesswork’ or
‘speculation’; we must at least insist upon a ‘just and reasonable estimate of the damage
based on relevant data.’” Lehrman v. Gulf Oil Corp., 464 F.2d 26, 46 (5th Cir. 1972)
(quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264 (1946)). The district
court correctly summarized this law by noting that “[w]hile damages in the antitrust
4
context need not be proven with exact particularity, they may not be merely speculative.”
215 F.R.D. at 530. The court reasoned that
[a]lthough proof of antitrust injury can be shown by the common proof that
each was in fact injured by the alleged conspiracy, the amount of damages
resulting from that injury will require some degree of investigation into
facts specific to each Plaintiff and potentially facts specific to each
Plaintiff’s numerous negotiations and transactions over the course of many
years.
Id. This reasoning is consistent with Bell Atlantic, where we stated that “even if we were
to conclude that the district court’s decision as to [the] fact of damage was in error, we
find that the plaintiffs’ motion for certification nevertheless founders on the issue of the
amount of damages.” 339 F.3d at 303.
Further, as the district court explains, plaintiffs should not be heard to complain
that the class includes larger purchasers who individually negotiated prices. Defendant
Interstate Brands was willing to agree to a class limited to purchasers who relied on the
price lists and subject to other limitations, but plaintiffs wanted to include the larger
purchasers who used a bidding process.
Plaintiffs complain that they offered an expert’s view that damages could be
calculated in a relatively straightforward manner, and that the district court failed to even
discuss the expert’s opinion. The district court did cite to the certification hearing
transcript where the expert’s views were discussed by counsel, and stated that it
nevertheless did
not believe, given the numerous independent factors that go into both the
price that should have been paid and the price that was actually paid, that
5
there could be any general formula for calculating damages with precision,
amounting to more than speculation, without requiring some degree of
inquiry into the individual facts of 52,000 Plaintiffs and potentially
thousands of transactions. Given the unique nature of the individual
transactions, the court concludes that it is not reasonable to assume that a
generalized formula can be created.
215 F.R.D. at 531. The district court’s view finds support in the peculiar facts and
circumstances of this case, and the court did not abuse its discretion in failing to give the
expert’s views more discussion or credence.1
The district court was not required to accept the expert’s view. Class certification
is a ultimately a legal determination for the court, based on the standards set forth in Rule
23, and the views of an expert in economics or any other field can at most inform that
decision. While the credentials of the expert, Dr. Asher, are solid, we do not find his
affidavit so compelling that we must conclude that the district court’s refusal to certify
the class was an abuse of discretion. First, Asher does not address the fraudulent
concealment issue, discussed below, which the district court found was one of two
reasons that individual issues predominated over class issues.
Asher discusses use of the “yardstick” and the “before and after” approaches to
calculating damages, two recognized methods of proving antitrust damages. Lehrman v.
Gulf Oil Corp., 500 F.2d 659, 667 (5th Cir. 1974). The “yardstick” method requires a
comparable industry and Asher admitted that he had not found a comparable industry.
1
We also note that the expert’s affidavit states that it is filed under seal, which
may explain why the district court did not discuss its contents in greater detail in its
published opinion.
6
This leaves Asher’s opinion that multiple regression analysis could be used to
calculate damages under a before and after approach. The district court was not required
to accept this opinion. Multiple regression analysis is not a magic formula. It is simply a
mathematical tool for estimating a dependent variable based on a number of independent
variables, which may or may not yield statistically significant results. The expert did not
offer a formula based on regression analysis, but merely opined that one could be found.
The affidavit was only a preliminary overview of how damages might be calculated.
Asher does not explain how to model “negotiating ability” or the geographic
market, factors which the district court thought were relevant. We question whether these
factors can be included in a general formula, since a variable cannot be included in a
regression formula unless a numerical value can be assigned to it. Asher does not explain
how to assign a numerical value for these factors, nor does he explain why they can be
ignored.
Asher proposes that regression analysis could measure the effect of illegal price
fixing with a before and after method that compares prices during a period when there
was no illegal activity and controls for other variables such as input costs and the size of
the account. Whatever theoretical appeal this approach has, plaintiffs do not persuade us
that data for such periods is readily available for all class members, and as discussed
below in the margin, Asher later stated in his expert report that the data needed to
perform his proposed regression analysis was unavailable.
7
In short, plaintiffs and their expert did not persuade the district court, and do not
persuade us, that a reliable formula for damages can be devised which will yield
statistically significant results, that the data that would have to be plugged into such a
formula can be assembled, that the relevant variables like negotiating skill can be
quantified, and that all of this can be used to reliably measure antitrust damages for each
of the many thousands of members of the proposed class. “Class treatment . . . may not
be suitable where the calculation of damages is not susceptible to a mathematical or
formulaic calculation, or where the formula by which the parties propose to calculate
individual damages is clearly inadequate.” Bell Atlantic, 339 F.3d at 307.2
2
During oral argument and in letters to the court thereafter, the parties discussed
the significance of a separate expert report prepared by Dr. Asher. The parties dispute
whether this report should be considered on appeal. In addition, we question whether the
district court considered it, since it was apparently filed to comply with a docket control
order and was not specifically directed at the class certification issue. It was, however,
filed long before the district court ruled on class certification. Regardless, the report does
not alter our conclusion that the district court was within its discretion in denying class
certification. First, the report actually undermines the earlier position in Asher’s affidavit
that damages could be determined using regression analysis. The report states in footnote
4: “Though I had initially proposed performing a regression analysis using individual
plaintiff transaction data, no computerized information of the type needed to perform
such a study was produced by defendant Interstate Brands Corporation.” The report
proposed to measure damages based on financial data for Interstate Brands’ predecessor
Continental Baking Company. It proposed taking an average profit margin of this
company for the two years after the class period, assuming that this average margin
would have prevailed during the class period when prices were allegedly fixed, and
measuring damages as the difference between the margins that would have been earned
under this assumption and the margins actually earned during the period of the alleged
conspiracy. This measure of damages is for the whole class, and does not address the
district court’s primary reason for denying class certification, namely that damages to
each individual class member could not be calculated by a formula and would require
individualized proof.
8
B. Fraudulent Concealment
On the issue of fraudulent concealment, plaintiffs wanted a class period that
extended back to 1977, based in part on a fraudulent concealment theory to extend the
limitations period. “To avail himself of this tolling doctrine, an antitrust plaintiff must
show that the defendants concealed the conduct complained of, and that he failed, despite
the exercise of due diligence on his part, to discover the facts that form the basis of his
claim.” In re Beef Industry Antitrust Litigation, 600 F.2d 1148, 1169 (5th Cir. 1979).
The district court reasoned that on this issue “some degree of individual proof will
be required.” 215 F.R.D. at 532. We agree. In Greenhaw v. Lubbock County Beverage
Ass’n, 721 F.2d 1019 (5th Cir. 1983), we held that a class-wide determination of
fraudulent concealment was not possible, because an individualized determination of “the
state of knowledge of each class member” was required. Id. at 1030. We held that the
jury’s findings of lack of knowledge and due diligence for the class members as a whole
was “without meaning.” Id. The issue of fraudulent concealment does not necessarily
doom class treatment, since Greenhaw itself solved the problem by bifurcating the case
into class issues and a phase two determination of individual damages. It is, however, a
factor weighing against certification because it requires individualized determinations.
Greenhaw involved a class with 6734 members, only a few of which sought damages in
phase two, id. at 1023-24, compared with a class of 52,000 in the pending case.
We also believe that Sandwich Chef of Tex., Inc. v. Reliance Nat’l Indem. Ins.
Co., 319 F.3d 205 (5th Cir. 2003), supports the district court’s decision. Sandwich Chef
9
was a RICO case where we held that the district court abused its discretion in certifying a
class where individualized proof of reliance was required. Id. at 211. While the issue in
the pending case is knowledge and due diligence versus reliance, all of these issues turn
on the individual plaintiff’s action or inaction based on his state of knowledge. The
district court’s decision in the pending case also finds support in In re Corrugated
Container Antitrust Litigation, 659 F.2d 1322, 1325 (5th Cir. 1981), where we noted, in
the context of the district court’s approval of a settlement in an antitrust suit, that
“proving due diligence class-wide on a claimant-by-claimant basis would be particularly
difficult.”
We express no opinion as to whether concerns about fraudulent concealment,
standing alone, would justify denial of class certification, and note plaintiffs’ argument
that fraudulent concealment applies only to part of the class period. Nevertheless, we are
persuaded that the issue of fraudulent concealment is a further reason for concluding that
the district court did not abuse its discretion in refusing to certify the class.
AFFIRMED.
10
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
sHARoN M. HARRISoN,
Piaintiff,
"' civil Acri@n No. 09-01364 (CKK)
OFFICE OF THE ARCHITECT OF THE
CAPITOL,
Defendant.
MEM()RANDUM OPINION AND ORDER
(March 29, 2()12)
Plaintiff Sharon M. Harrison ("Harrison") brings this employment discrimination and
retaliation action against her employer, the Office of the Architect of the Capitol (the "AOC").
After discovery concluded, the AOC filed a [32] Motion for Summary Judgment.l Harrison
responded by, among other things, filing a [38] Motion for Relief Pursuant to F ederal Rule Civil
Procedure 56(D ("Motion for Relief’).z Despite the title, the Court construes Harrison’s Motion
for Relief as arising under Federal Rule of Civil Procedure 56(d),3 which delineates those
1 The motion remains pending and will be resolved in a subsequent opinion.
2 To be precise, Harrison first responded by filing an opposition that failed to comply with the
Local Rules of this Court and the directives set forth in the Court’s [30] Scheduling and
Procedures Order. On July l, 201 l, the Court struck Ham`son’s original opposition and directed
her to submit a revised opposition. See Mem. Order (July l, 2011), ECF No. [36]. Among other
things, the Court addressed Harrison’s apparent intention to "oppose [the AOC’S] motion on the
basis that she has not yet been provided with certain discovery." Ia’. at 4. In this regard, the
Court expressly warned Harrison that, "to the extent [she] intends to oppose [the AOC’S] motion
on the basis that she ‘cannot present facts to justify [her] opposition,’ she must support that
contention ‘by affidavit or declaration’ and provide ‘specified reasons."’ Ia’. (citing FED. R. CIV.
P. 56(d)) (notations in original).
3 Rule 56(d) was formerly designated as Rule 56(t).
l
circumstances under which a party may resist a motion for summary judgment on the basis that
she "cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). Upon
careful consideration of the parties’ submissions,4 the relevant authorities, and the record as a
whole, the Court finds that Harrison has failed to carry her burden under Rule 56(d).
Accordingly, her [38] Motion for Relief shall be DENIED.
I. LEGAL STANDARD AND DISCUSSION
Harrison seeks relief under Federal Rule of Civil Procedure 56(d), which provides:
When Facts Are Unavailable to the Nonmovant. If a
nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition [to
a motion for summary judgment], the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
FED. R. CIV. P. 56(d). The decision of whether to grant or deny relief under Rule 56(d) is
discretionary and entrusted to the district court. Pardo-Kronemann v. Donovan, 601 F.3d 599,
611-12 (D.C. Cir. 2010). Harrison, as the party seeking relief under Rule 56(d), bears the
burden of making the required "showing." That is, Harrison must demonstrate "that, for
specified reasons, [she] cannot present facts essential to justify [her] opposition" to the AOC’s
Motion for Summary Judgment. FED. R. CIV. P. 56(d). For at least five separate reasons, any
4 Although the Court’s decision is based on the record as a whole, its consideration has focused
on the following documents: Plaintiff’s [43-1] Second Revised Memorandum of Law and Points
and Authorities in Support of her Motion for Relief Pursuant to Federal Rule Civil Procedure
56(f) ("Memorandum"); and Defendant’s [41] Reply to Plaintiff s Opposition to Defendant’s
Motion for Summary Judgment. Although Harrison was allocated until August 22, 2011 to file a
reply, the public docket reflects that she elected not do so. See LCvR 7(d); FED. R. CIV. P. 6(d).
Accordingly, the motion is fully briefed and ripe for a decision. In an exercise of its discretion,
the Court concludes that holding oral argument would not be of assistance in rendering a
decision. See LCvR 7(t).
one of which is sufficient to deny the relief sought, the Court finds that Harrison has failed to
discharge her burden.
First, a party seeking relief under Rule 56(d) must identify the additional discovery she
would seek to oppose a motion for summary judgment "concretely" and with "sufficient
particularity." See Strang v. U.S. Arms Control & Dz'sarmament Agency, 864 F.2d 859, 861
(D.C. Cir. 1989); Messz`na v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006). Here, Harrison
never identifies the discovery she wants with any meaningful measure of specificity. lndeed, it
is not even clear from Harrison’s vague and disjointed submission whether she even wants any
additional discovery. Throughout her Motion for Relief, Harrison complains that the AOC
should have produced a copy of a report prepared by the AOC’s Office of lnspector General in
connection with an investigation into allegations raised by Harrison (the "OIG Report") during
discovery in this case, and faults the AOC for failing to provide her with updates as to the
progress of the investigation. See Pl.’s Mem. at 5-8. However, by the time Harrison filed her
opposition to the AOC’s Motion for Summary Judgment in this case, Harrison already had a
copy of the OIG Report because it had been filed in a related civil action almost four months
earlier. See Report of Investigation OlG-l-10-05, Harrison v. Ofj€ce of the Archz`tect of the
Capitol, Civil Action No. 11-00420 (CKK) (D.D.C.), ECF No. [12]. ln fact, in her opposition to
the AOC’s Motion for Summary Judgment in this case, Harrison actually relies upon the OIG
Report. See Pl.’s Mem. at 38-40. In short, the OIG Report was not "unavailable" to Harrison at
the time she filed her opposition and, as a result, it cannot serve as a basis for relief under Rule
56(d). Meanwhile, to the extent Harrison intended to suggest that she might have sought
additional discovery in this action had the OIG Report been available sooner, she was obligated
under Rule 56(d) to specifically z'a’entm/ that discovery. Because she has completely failed to do
so, her Motion for Relief fails on this basis alone. Cf Dunning v. Quana’er, 508 F.3d 8, 9 (D.C.
Cir. 2008) (per curiam) (finding the plaintiff’ s suggestion that he would take depositions of the
decision-makers involved in the challenged employment action to be insufficiently particularized
to support relief under Rule 56(d)).
Second, and in a similar vein, a party seeking relief under Rule 56(d) must articulate a
plan for obtaining the discovery alleged to be unavailable. See Garcz'a v. U.S. Air Force, 533
F.3d 1170, 1180 (10th Cir. 2008). In this regard, Harrison’s Motion for Relief does not even
allude to, let alone articulate, a specific, non-objectionable discovery request. Because
Harrison’s submission is devoid of a single concrete request for additional discovery, her Motion
for Relief fails on this separate, independent basis. See Estate ofParson v. Palestz`nian Auth.,
715 F. Supp. 2d 27, 35 (D.D.C. 2010) (providing that a party seeking relief under Rule 56(d)
cannot rely upon "a generalized request to conduct discovery" but must identify what "further
specified discovery" is needed), ajj"a’, 651 F.3d 118 (D.C. Cir. 2011).
Third, a party seeking relief under Rule 56(d) must establish that the discovery she seeks
is "essential to justify [her] opposition." FED. R. CIV. P. 56(d). Stated somewhat differently, a
party must show that the requested discovery, if obtained, "would alter the court’s
determination." Cheyenne Arapaho Tril)es of Oklahoma v. Unz'ted States, 558 F.3d 592, 596
(D.C. Cir. 2009). In this case, because Harrison fails to discharge her threshold burden of
specifically identifying what discovery is needed, she also fails to explain why that discovery
would be "essential" in opposing the AOC’s Motion for Summary Judgment in this case, Her
failure to do so is particularly problematic because Harrison actually references and relies upon
the contents of the OIG Report in her opposition. See Pl.’s Mem. at 38-40. Indeed, in her view,
the OIG Report constitutes "direct evidence" of discriminatory animus on the part of Stephen P.
Hayleck, the focus of many of Harrison’s allegations in this case. Ial. at 39. And yet, Harrison
never specifically identifies what other evidence she would seek above and beyond the OIG
Report and then articulate why it is "essential" to her opposition. Absent that showing, so far as
the Court is concerned, any additional evidence might very well be immaterial, cumulative, or
otherwise not "essential." Accordingly, Harrison’s Motion for Relief fails on this separate,
independent basis. Cf Carpenter v. Fed. Nat’l Mortg. Ass ’n, 174 F.3d 231, 237-38 (D.C. Cir.)
(concluding that the district court acted within its discretion in denying additional discovery
under Rule 56(d) where the plaintiff failed to identify what new facts could be obtained to
support her theory of pretext), cert. a'eniea', 528 U.S. 876 (1999); M0ses v. Doa’aro, 774 F. Supp.
2d 206, 215-16 (D.D.C. 2011) (finding that the plaintiff s contention that discovery would
demonstrate discrimination was insufficient to warrant additional discovery).
Fourth, and on a similar note, a party seeking relief under Rule 56(d) may not rely on
speculation that discovery will produce material evidence. Nat ’l Uhion Fire Ins. Co. of
Pittsburgh, Pa. v. Stroh Cos., Inc., 265 F.3d 97, 117 (2d Cir. 2001). Rather, she must adduce
"support for the proposition that discovery would have produced the evidence she anticipated."
Messina, 439 F.3d at 163 n.6. In this case, because Harrison fails to discharge her threshold
burden of specifically identifying what discovery is needed, she also fails to demonstrate that
additional discovery would, at the very least, be likely to uncover evidence essential to her
opposition to the AOC’s Motion for Summary Judgment Accordingly, her Motion for Relief
also fails on this separate, independent basis.
Fifth, and finally, the showing required by Rule 56(d) must be made "by affidavit or
declaration." FED. R. CIV. P. 56(d). The affidavit or declaration itself must "identify . . . the
specific facts that further discovery would reveal, and explain why those facts would preclude
summary judgment." Tatum v. City & Cnty. ofSan Francz`sco, 441 F.3d 1090, 1100 (9th Cir.
2006); see generally 11-56 J ames Wm. Moore et al., l\/IOORE’S FEDERAL PRACTICE §§ 56.100,
56.101 (3d ed. 1999) (identifying what the affidavit or declaration should include). In this case,
Harrison has personally executed a declaration in support of her Motion for Relief. See Revised
Decl. of Pl. Sharon M. Harrison, ECF No. [43-1]. However, Harrison’s declaration merely faults
the AOC for failing to provide her with updates as to the progress of the investigation See ia’. 111
141 -1 52. lt does not identify the specific facts that further discovery would reveal or explain
why those facts would preclude summary judgment. Accordingly, her Motion for Relief fails on
this separate, independent basis.
II. CONCLUSION AND ORDER
For the reasons set forth above, it is, this 29th day of March, 2012, hereby
ORDERED that Harrison’s [38] Motion for Relief is DENIED.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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609 F.2d 505
Arringtonv.Stephenson
No. 79-8190
United States Court of Appeals, Fourth Circuit
9/28/79
1
E.D.N.C.
DISMISSED
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
In re:
RONALD K. SUDDARTH,
Debtor. No. 99-5036
(D.C. No. 98-CV-539-H(J))
(N.D. Okla.)
PATRICK J. MALLOY, III, Trustee,
Appellant,
v.
ARCADIA FINANCIAL LTD.,
Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Arcadia Financial, Ltd. (Arcadia), a creditor in the underlying bankruptcy
proceeding, filed a motion with the bankruptcy court for relief from the automatic
stay and for an order requiring the bankruptcy trustee to abandon the vehicle in
which it claims an interest. The trustee objected to the motion, arguing that
Arcadia had not properly perfected its security interest in the vehicle. The
bankruptcy court granted Arcadia’s motion, finding that, applying principles of
the Uniform Commercial Code (UCC), the security interest in the motor vehicle
was perfected if it substantially complied with the requirements of the notice
filing statute. Further, the bankruptcy court found that Arcadia had substantially
complied with the motor vehicle perfection statute because omission of the
security agreement date from the designated box on the lien entry form did not
seriously mislead creditors. On appeal, the district court adopted the magistrate
judge’s report and recommendation and affirmed the bankruptcy court’s decision.
The trustee now appeals the district court’s affirmance of the bankruptcy
court’s decision. We review the bankruptcy court’s factual findings for clear
error and its legal findings de novo . See Phillips v. White (In re White) , 25 F.3d
-2-
931, 933 (10th Cir. 1994). We also review de novo mixed questions, where legal
conclusions are drawn from facts. See Gullickson v. Brown (In re Brown) , 108
F.3d 1290, 1292 (10th Cir. 1997). Guided by these standards, we affirm.
The relevant Oklahoma statute provides that a security interest in a vehicle
is perfected upon delivery of the required fee, certificate of title or an application
therefor, and a lien entry form. See 47 Okla. Stat. § 1110(A)(1) (2000 Supp.).
The lien entry form must contain the secured party’s name and address, and the
date of the security agreement. See id. In this case, the date of the security
agreement did not appear in the designated box on the lien entry form. The date
of the security agreement was September 11, 1997, which happened to be the
same date the lien entry form was signed by the Arcadia representative.
Consequently, the date did appear on the lien entry form next to the secured
party’s signature.
The Supreme Court of Oklahoma has held that the motor vehicle perfection
statute “is properly construed as a notice filing statute with requirements similar
to those of Article 9 of the U.C.C.,” and, consequently, a security interest is
perfected under the statute if the secured party has substantially complied with the
statute. Woodson v. Ford Motor Credit Co. (In re Cook) , 637 P.2d 588, 590
(Okla. 1981) (addressing statute prior to 1985 amendment). The lien entry form
is in substantial compliance with the perfection statute even if it contains minor
-3-
errors, so long as they are not seriously misleading. See id . Further, “[w]hether
the filing requirements have been substantially complied with so as to give
requisite notice to other creditors depends on the facts of each case.” Id. at 590.
“[I]ntent controls over form in creation of security interests, and . . . the policy of
liberal construction shall be applied to promote the underlying purpose of the
UCC.” Woodson v. General Motors Acceptance Corp. (In re Hembree) , 635 P.2d
601, 603 (Okla.1981) (citations omitted).
The bankruptcy court found that, under the circumstances of this particular
case, a third party could not be seriously misled by omission of the security
agreement date from the designated box. The court found that
[a]ny creditor or purchaser seeking information about encumbrances
on the Vehicle has notice from the face of the Lien Entry Form,
which is on file at the Oklahoma Tax Commission, that Arcadia
claims a lien as of September 11, 1997, the date that the Lien Entry
Form was signed and delivered to the motor vehicle agent. Notice,
the purpose of the perfection statute, has been achieved. Any
creditor or purchaser creditor could easily contact Arcadia to
determine additional information about the lien if necessary and
would know that any sale or further encumbrance may be subject to
Arcadia’s claimed lien. Moreover, the Trustee does not show any
actual or potential prejudice caused by the omission of the date from
the box on the lien entry form.
Appellant’s App. at 8-9. We see no error in these findings. We agree that
omission of the date from the designated box was minor and not seriously
misleading; any third party would have been put on notice of Arcadia’s lien as
existing at least from the date the lien entry form was signed. The bankruptcy
-4-
court was correct in finding, under these facts, that Arcadia substantially
complied with the motor vehicle perfection statute. 2
We AFFIRM the district
court’s order affirming the bankruptcy court’s order granting the motion for relief
from the automatic stay and for abandonment of property.
Entered for the Court
Wade Brorby
Circuit Judge
2
Arcadia notes in its brief on appeal that it continues to urge its position that
the motor vehicle perfection statute does not require that the security agreement
date appear on the lien entry form in situations involving submission of an
existing certificate of title. The bankruptcy court correctly observed that the
“sparsely punctuated run-on sentence contained in the statute” could, technically,
be so read. Appellant’s App. at 5. We agree, however, that both a practical
reading of the statute and Oklahoma case law dictate that the requirement of
inclusion of the security agreement date on the lien entry form is not limited to
situations involving submission of an application for a certificate of title for a
new vehicle.
-5-
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507 S.W.2d 216 (1974)
Sylvester ESTES, Appellant,
v.
The STATE of Texas, Appellee.
No. 47702.
Court of Criminal Appeals of Texas.
March 27, 1974.
*217 Marvin O. Teague, Houston (On appeal only), for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Victor Pecorino, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for murder with malice. Punishment was assessed by the jury at one hundred years.
Appellant was convicted of shooting to death Larry Ronald Garland, the night clerk of a U-Tot-Em store, in Houston, in the early morning hours of November 5, 1971. The State relied, in part, upon appellant's written confession. Appellant testified at trial and admitted shooting the deceased but claimed he did so in self-defense.
Appellant first challenges the sufficiency of the evidence. He urges that, as a matter of law, he shot the deceased in self-defense.
In both his written statement and his testimony, appellant admitted shooting the deceased from close range with a .22 caliber pistol. Article 45, Vernon's Ann. P.C., provides that the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act. Malice can be inferred from the use of a deadly weapon at close range. Wingate v. State, Tex.Cr.App., 487 S.W.2d 89. We hold that the evidence is sufficient to support the jury's finding that appellant shot the deceased intentionally and with malice aforethought.
Appellant's claim of self-defense is based upon his testimony that he shot the deceased as Garland attempted to grab appellant's pistol out of his belt, while at the same time reaching for a pistol Garland *218 carried in a shoulder holster. The investigating police officer testified that he found Garland's pistol still in his shoulder holster when he reached the scene, and that two other weapons hidden under the check-out counter were undisturbed. Appellant's written statement makes no mention of any movement by the deceased toward the shoulder weapon. Upon such evidence, we hold that self-defense as a matter of law was not established. It would indeed be a rare case for such a defense to be so established. See Powers v. State, Tex.Cr. App., 497 S.W.2d 594.
Appellant, in his next two grounds of error, contends that the conviction is void because he was tried and convicted for murder with malice aforethought, a criminal offense which no longer exists. He apparently relies upon the language in Foster v. State, Tex.Cr.App., 493 S.W.2d 812, at page 813, which is as follows:
"Since degrees of murder no longer exist, all voluntary killings being murder, the presence or absence of malice relate only to the punishment."
The decisions reversing the convictions in Brazile v. State, Tex.Cr.App., 497 S.W. 2d 302, and the later case of Marrero v. State, Tex.Cr.App., 500 S.W.2d 818, turned on questions regarding the admissibility of certain evidence in mitigation of punishment at the punishment stage of the trial and do not apply.
The statute providing for the offense of murder with malice is still in effect.
Appellant also contends that the trial court erred in failing to charge on the law of murder without malice at both the guilt or innocence and punishment stages of the trial.
Again, appellant did not object to the court's charges and no requested charges were submitted. Nothing is presented for review. His contention was that he shot deceased in self-defense. The jury was charged on that issue and that, if they had a reasonable doubt that appellant killed deceased voluntarily and with malice aforethought, they should find him not guilty.
Appellant's fourth and fifth grounds of error are overruled.
In his eighth through twelfth grounds of error, appellant complains of the introduction into evidence of his written confession. He contends that the requirements of Articles 15.17 and 38.22, Vernon's Ann.C. C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not met, and that the totality of the circumstances does not show the confession to have been voluntarily given.
A Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908, type hearing was held to determine the admissibility of the confession. The record includes findings of fact and conclusions of law filed by the trial court holding the confession to have been freely and voluntarily given in accordance with all constitutional and statutory requirements and properly admissible into evidence.
The record discloses that appellant was stopped for speeding near Uvalde on November 15, 1971, and was found to be in possession of a stolen driver's license, wallet and automobile. At the scene of the arrest, Department of Public Safety Officer Monk gave him a Miranda warning, shown to comply with the requirements of Article 38.22, supra. The following day appellant was taken before a magistrate and again advised of his rights.
Appellant was returned to Houston on the afternoon of November 17 by Houston police detective J. A. Gamino who, before placing him in the city jail, again warned him.
Houston Detective H. A. Zoch testified that he and Detective D. Sacky removed appellant from his cell at approximately 2:05 a.m. on November 19th, and took him to the city homicide office where Zoch gave appellant another statutory warning from a card prepared by the district attorney's *219 office. After appellant indicated he wished to waive his rights and make a statement he was taken before Judge K. M. Pacetti at approximately 2:45 a.m. The records sets out in full the warnings given appellant by Detective Zoch and Judge Pacetti, both of which manifest compliance with Articles 15.17 and 38.22, supra. Appellant was then returned to the homicide office where he immediately began making his statement at 3:10 a.m. and finished it at 4:45 a.m.
Appellant, therefore, received at least three Miranda-type warnings and two formal warnings by magistrates within the three days preceding his statement. Two of these warnings were given within one hour prior to the commencement of his statement, and are set out in full in the record. We hold that appellant was adequately apprised of his constitutional and statutory rights in accordance with the requirements of Articles 15.17 and 38.22, supra, and Miranda, supra.
Appellant asserts, however, that he did not voluntarily waive his rights and that his confession was the product of coercion. He testified that he was removed from his cell between 10:00 and 11:00 p.m. and was periodically beaten by Officer Zoch until he appeared before Judge Pacetti. He stated that Zoch struck him several times in the stomach and once in the face, causing his eye to swell almost closed. He further testified that his repeated requests for a lawyer were refused, that he made the statement to keep Zoch from hitting him again, and that he didn't tell Judge Pacetti about the beating because he thought it would do no good.
Appellant's mother testified that she visited him in the city jail on Sunday, November 21, and that his eye was swollen and his mouth was "real fat and lips real big." She stated that he appeared quite severely injured.
Officer Zoch testified that after he removed appellant from his cell appellant was given his warning and indicated he understood it, but stated that he didn't need or want a lawyer. A conversation followed during which appellant first claimed the shooting was an accident, then said he would tell Zoch "the straight of the thing." Appellant was then taken directly before Judge Pacetti and immediately returned to the homicide office where he gave his statement. The statement itself recites that appellant understood all his rights, desired to waive them all, and was making the statement freely and voluntarily. Zoch denied that appellant was ever struck or threatened. Officer Sacky testified to essentially the same facts. Later, the State introduced jail photographs of appellant taken on Monday, November 22, when he was transferred to the county jail. These were introduced at the trial on the merits and passed among the jury and apparently refuted the testimony of appellant and his mother concerning the beating.
Whether an accused voluntarily, knowingly and intelligently waived his rights against self-incrimination is to be determined from the totality of the circumstances. Walker v. State, Tex.Cr.App., 501 S.W.2d 912; Easley v. State, Tex.Cr.App., 448 S.W.2d 490. We hold that the trial court had sufficient evidence to conclude that the appellant knowingly and intelligently waived his constitutional and statutory rights, that his statement was freely and voluntarily given.
We have examined appellant's many grounds of error and find them to be without merit.
There being no reversible error, the judgment is affirmed.
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986 F.2d 1410
U.S.v.Anthony (Bernard), a/k/a Njoku (Bernard)
NO. 92-5269
United States Court of Appeals,Third Circuit.
Jan 20, 1993
Appeal From: D.N.J.,
Sarokin, J.
1
AFFIRMED.
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No
No. 98-044
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 172N
VIDEO WAREHOUSE, INC.,
PHILLIP C. FREY, and
PAULETTE BIELENBERG-PRINZING,
Plaintiffs/Appellants,
v.
TOWN PUMP, INC., a Montana
corporation,
Defendant/Respondent.
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APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John C. Doubek, Small, Hatch, Doubek & Pyfer;
Helena, Montana
For Respondent:
Patrick M. Sullivan, Poore, Roth & Robinson;
Butte, Montana
Submitted on Briefs: October 1, 1998
Decided: July 19, 1999
Filed:
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__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.
¶2. On October 26, 1989, Video Warehouse, Inc., Phillip C. Frey, and Paulette
Bielenberg-Prinzing filed this action in the First Judicial District Court, Lewis and
Clark County, against Town Pump, Inc. for fraud, constructive fraud, and for
breach of contract. On February 1, 1993, Town Pump filed a motion for summary
judgment on all claims asserted by Video Warehouse. On June 8, 1993, the District
Court granted summary judgment on Video Warehouse's fraud and constructive
fraud claims and denied summary judgment on Video Warehouse's breach of
contract claims. On October 5, 1993, Video Warehouse filed a motion for leave to
amend its complaint which the District Court denied on December 27, 1993. On
October 11, 1994, Town Pump filed a motion for summary judgment on the breach
of contract claims asserted by Frey and Bielenberg-Prinzing. On November 15, 1994,
the District Court entered summary judgment on those claims. On September 8,
1997, Frey and Bielenberg-Prinzing were dismissed from the action.
¶3. The matter was tried without a jury from September 8 through September 11,
1997. On December 2, 1997, the District Court signed its findings of fact, conclusions
of law, and order in which it determined that Town Pump committed certain
breaches of contract and that Video Warehouse was entitled to recover damages in
the sum of $3366.50. Video Warehouse appeals from the District Court's findings of
fact, conclusions of law, and order. We affirm.
¶4. The issues presented on appeal are as follows:
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¶5. 1. Did the District Court err when it granted summary judgment in favor of
Town Pump on the fraud and constructive fraud claims?
¶6. 2. Did the District Court err when it refused to allow Video Warehouse an
opportunity to amend its complaint to comply with Rule 9(b), M.R.Civ.P., after it
had granted summary judgment on the issues of fraud and constructive fraud?
¶7. 3. Were certain findings of fact not supported by evidence or contrary to the
evidence?
FACTUAL BACKGROUND
¶8. The appellant, Video Warehouse, Inc., is a Montana corporation with its
principal place of business in Helena, Montana. Phillip Frey and Paulette Bielenberg-
Prinzing were officers of Video Warehouse. The respondent, Town Pump, Inc., is
also a Montana corporation.
¶9. In July of 1985, Video Warehouse opened a large-scale video rental store in
Helena. Initially, the business was financed through a $150,000 Small Business
Administration loan and a contribution by the owners of $50,000 in assets. As of
January 31, 1986, Video Warehouse had cash on hand in the sum of approximately
$22,062. Thereafter, it had a fairly steady depletion of its cash reserves, and by the
end of October 1986, it had a negative cash-on-hand balance.
¶10. When Video Warehouse initially commenced its operation, it entered into
"satellite agreements" with small convenience stores in area communities. Town
Pump represented to Video Warehouse that there was excellent money to be made in
the Town Pump stores from the video rentals. Video Warehouse would provide the
stores with a selection of movies and rental equipment. The satellite stores'
employees would handle the rental of the movies and equipment to the customers.
The revenue generated from this arrangement would then be divided between Video
Warehouse and the satellite store based upon a formula set forth in the satellite
agreement.
¶11. By the summer of 1986, Video Warehouse had such arrangements with five
parties, including among others, the Town Pump convenience and gas store in White
Sulphur Springs, Montana. The Town Pump store was leased and operated by
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independent parties, rather than being a "corporate" store which is one operated by
Town Pump. Some of the satellite stores' video rental volume was greater than
others. On September 29, 1986, Video Warehouse submitted a written proposal to
Town Pump according to which Video Warehouse would provide the movies and
related equipment to Town Pump's corporate stores. Essentially, Video Warehouse
proposed that starting in October 1986, Video Warehouse would begin placing video
movies in most of Town Pump's twenty-six stores, gradually incorporating itself into
a few stores each month.
¶12. In October 1986, Video Warehouse proceeded to install its movies in several
convenience stores, using its existing inventory from its main video rental business in
Helena to supply these locations. Finally, in February 1987, on behalf of Video
Warehouse, Phillip Frey signed a long-term, eighteen-month contract with Town
Pump which provided that Video Warehouse would supply movies, equipment, and
accessories to twenty-five Town Pump convenience stores. Video Warehouse then
began installing the movies and video equipment in the identified stores.
¶13. Video Warehouse projected that the Town Pump satellite operation would
require an initial investment of more than $136,000. The actual capital infusion
obtained by Video Warehouse to fund its expansion into satellite stores was a $20,000
loan from American Federal Savings and Loan. Video Warehouse also obtained a
shipment of used movies from a defunct video store in Minnesota in May of 1987.
¶14. In May 1987, when Video Warehouse had placed movies and equipment in just
eleven of the Town Pump stores, it defaulted on its SBA loan by failing to make the
full monthly payment. In June 1987, it did not pay anything on the SBA loan. In the
same month, it did not pay off its $20,000 loan to American Federal Savings and
Loan, which was also due at that time, and the loan was extended. Furthermore, it
deferred rent payments due to poor cash flow.
¶15. In July 1987, Video Warehouse continued to expand into other satellite
locations. By the end of July 1987, it was servicing twenty-eight satellite locations,
twenty-three of which were Town Pump "corporate" owned convenience stores. It
continued to expand to other non-Town Pump locations, and by the end of
September 1987, Video Warehouse was operating its main store in Helena and
servicing thirty-one satellite locations throughout Montana. (Seven were non-Town
Pump "corporate" stores.) During the period from 1986 to 1987, Video Warehouse's
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income and revenues decreased. On April 29, 1988, pursuant to a written agreement
executed by the parties, Video Warehouse notified Town Pump of its intent to
terminate the agreement effective July 30, 1988.
¶16. Video Warehouse filed this action seeking damages for fraud, constructive
fraud, and breach of contract. The District Court granted summary judgment on the
issues of fraud and constructive fraud, and ultimately rendered a decision on the
breach of contract issue in favor of Video Warehouse, and specified an amount of
damages. Video Warehouse now appeals the District Court's findings of fact,
conclusions of law, and order.
STANDARD OF REVIEW
¶17. Our standard of review in appeals from summary judgment rulings is de novo.
See Motaire v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239,
242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782,
785. When we review a district court s grant of summary judgment, we apply the
same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v.
Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set
forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once this has
been accomplished, the burden then shifts to the non-moving party to prove, by more than
mere denial and speculation, that a genuine issue does exist. Having determined that
genuine issues of fact do not exist, the court must then determine whether the moving
party is entitled to judgment as a matter of law. We review the legal determinations made
by a district court as to whether the court erred.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).
ISSUE 1
¶18. Did the District Court err when it granted summary judgment in favor of Town
Pump on the fraud and constructive fraud claims?
¶19. Video Warehouse maintains that the District Court incorrectly dismissed its
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fraud and constructive fraud causes of action for failure to allege a cause of action
and because "no specific misrepresentations are alleged in the complaint." Video
Warehouse contends that its complaint does in fact allege multiple
misrepresentations and omissions which constitute the bases of fraudulent and
deceitful conduct on the part of Town Pump. Video Warehouse argues that, in
addition to its complaint, it submitted detailed affidavits from Ron Southwick,
Paulette Prinzing, and Phillip Frey which give point by point allegations of fraud and
constructive fraud. It further claims that it provided detailed documentation of the
fraud in its brief in opposition to the motion for summary judgment.
¶20. The essence of Video Warehouse's fraud and constructive fraud allegations are
that Town Pump through its agent, Lee Terry, induced Video Warehouse to spend
large sums of money personally and corporately and invest time, money and effort
into a relationship with Town Pump. Video Warehouse alleges that Terry
misrepresented all of the terms and conditions of the relationship from its inception
in order to induce Video Warehouse into a business relationship with Town Pump.
Specifically, Video Warehouse maintains that Terry lied with regard to the
profitability of the video business and how Town Pump could benefit Video
Warehouse. It maintains that Terry represented that Video Warehouse could install
its videos into more than twenty Town Pump stores if Video Warehouse would enter
into a long-term contract with Town Pump even though there were not twenty stores
immediately available. Video Warehouse also claims that Town Pump, in material
breach of the representations made to Video Warehouse, failed to manage Video
Warehouse's equipment in a businesslike manner, did not collect all rental fees on
video equipment and properly distribute those fees, did not allow Video Warehouse
to determine whether or not video equipment was considered lost, and did not pay an
equal share for the lost or missing equipment.
¶21. Town Pump cites Avco Financial Services v. Foreman-Donovan (1989), 237
Mont. 260, 263, 772 P.2d 862, 864; Sprunk v. First Bank Western Montana Missoula
(1987), 228 Mont. 168, 174, 741 P.2d 766, 769, for the proposition that Video
Warehouse's fraud allegations are conclusory and unsupported and that because
Video Warehouse was at least on "equal footing" with Town Pump on matters
involving the video business, it had no right to rely upon any alleged false
representations made by Town Pump. According to Town Pump, even if Video
Warehouse's allegations are accepted as true, they simply do not constitute fraud and
are not set forth in the complaint.
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¶22. Generally, when we review a district court s grant of summary judgment, we
apply the same evaluation as the district court based on Rule 56, M.R.Civ.P.
Therefore, we review the pleadings and affidavits to determine whether the District
Court correctly granted summary judgment. The District Court dismissed Video
Warehouse's fraud and constructive fraud causes of action, however, stating that
"the present complaint fails to allege a cause of action in either fraud or constructive
fraud. . . . No specific misrepresentations are alleged in the complaint." We agree.
¶23. Rule 9(b), M.R.Civ.P., states that "[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.
Malice, intent, knowledge, and other condition of mind of a person may be averred
generally." The nine elements necessary to make a prima facie showing of fraud
pursuant to Rule 9(b), M.R.Civ.P., are: (1) representation, (2) falsity of
representation, (3) materiality of representation, (4) speaker's knowledge of falsity of
representation or ignorance of its truth, (5) speaker's intent it should be relied upon,
(6) hearer's ignorance of falsity of representation, (7) hearer's reliance on
representation, (8) hearer's right to rely on representation, and (9) consequent and
proximate injury caused by reliance on representation. See Lee v. Armstrong (1990),
244 Mont. 289, 293, 798 P.2d 84, 87.
¶24. Pursuant to § 28-2-406, MCA, a showing of constructive fraud requires:
(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to
the person in fault or anyone claiming under him by misleading another to his prejudice or
to the prejudice of anyone claiming under him; or
(2) any such act or omission as the law especially declares to be fraudulent, without
respect to actual fraud.
¶25. Video Warehouse contends on appeal that its complaint in combination with
several affidavits, satisfies the nine elements of fraud, as well as the elements of
constructive fraud, and therefore satisfies the specificity requirement of Rule 9(b), M.
R.Civ.P. Our review of the complaint, however, leads us to conclude otherwise.
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¶26. With regard to its claims for constructive fraud, Video Warehouse did not
specifically allege constructive fraud in its complaint. Therefore, the District Court
correctly concluded that the requirements of Rule 9(b), M.R.Civ.P. were not met
with regard to constructive fraud.
¶27. Video Warehouse attempts to allege actual fraud in its complaint in
approximately nine separate instances. In each instance, however, Video Warehouse
fails to aver, even generally, the fourth requirement for fraud, that the speaker had
knowledge at the time the representation was made that the representation was false
or that the speaker was ignorant of its truth. In order to satisfy the nine-element
requirement of Lee v. Armstrong, Video Warehouse's allegations should have been
more definite as to each element and should have outlined the specific allegations
regarding acts and omissions that constitute the fraudulent conduct. In Pipinich v.
Battershell (1988), 232 Mont. 507, 511, 759 P.2d 148, 150-51, we clearly stated that a
cause of action for actual fraud must contain specific factual allegations comprising
the nine elements of fraud. In this case, Video Warehouse's allegations of fraud are
stated so generally that we are unable to determine which acts constitute the nine
elements of fraud. In no instance are we able to determine from the allegations set
out in the complaint any indication, even generally as is allowed by Rule 9(b), M.R.
Civ.P., that the speaker knew of the falsity of any representation or the ignorance of
the truth.
¶28. Accordingly, we agree with the District Court that Video Warehouse's
complaint is defective because it fails to adequately allege a cause of action in either
fraud or constructive fraud and therefore those causes of action were appropriately
dismissed.
ISSUE 2
¶29. Did the District Court err when it refused to allow Video Warehouse an
opportunity to amend its complaint to comply with Rule 9(b), M.R.Civ.P., after it
had granted summary judgment on the issues of fraud and constructive fraud?
¶30. It is well settled that pursuant to Rule 15(a), M.R.Civ.P., "[a] pleading may be
amended by leave of court and that such leave shall be freely given when justice so
requires." Mogan v. City of Harlem (1989), 238 Mont. 1, 7, 775 P.2d 686, 689.
However, we have also held that:
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[W]hile the rule favors allowing amendments, a trial court is justified in denying a motion
for an apparent reason "such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by allowance of the amendment, and futility of the
amendment, etc."
Lindey's Inc. v. Professional Consultants, Inc. (1990), 244 Mont. 238, 242, 797 P.2d 920,
923 (quoting Forman v. Davis (1962), 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d
222, 226).
¶31. Video Warehouse claims that the District Court should have permitted it to
amend its complaint to more specifically assert its allegations of fraud and
constructive fraud. We conclude, however, that because Video Warehouse's claims
for fraud and constructive fraud were adjudicated prior to its request to amend its
complaint, the District Court was correct to disallow any amendment.
¶32. On October 26, 1989, Video Warehouse filed its complaint against Town Pump.
On October 5, 1992, the District Court issued a pretrial scheduling order, which
stated that motions to amend pleadings must be filed by October 16, 1992, and that
all discovery shall be completed by January 8, 1993. On February 1, 1993, after
discovery had closed and after the court-imposed deadline for motions to amend
pleadings had expired, Town Pump moved for summary judgment pursuant to Rule
56, M.R.Civ.P. The District Court issued its decision and order on June 8, 1993, in
which it granted Town Pump's motion for summary judgment on Video
Warehouse's fraud claims and denied the motion with respect to the other claims.
¶33. On October 5, 1993, Video Warehouse filed a motion for leave to file an
amended complaint to set forth claims for fraud, constructive fraud, breach of
contract, bad faith, and negligent misrepresentation. Video Warehouse's motion was
filed approximately four years after it filed its complaint, one year after the deadline
for filing motions to amend pleadings had expired, nine months after the close of
discovery, and more than four months after the District Court entered its order
granting, in part, Town Pump's motion for summary judgment.
¶34. The District Court denied Video Warehouse's motion to amend on December
27, 1993, citing its previous ruling on Video Warehouse's fraud and constructive
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fraud claims and the fact that the deadline for filing amended pleadings expired
more than a year earlier.
¶35. In Matter of Estate of Wallace (1990), 186 Mont. 18, 606 P.2d 136, we affirmed a
trial court's denial of a similar motion to amend. In that case the plaintiff sought to
file an amended complaint which asserted a claim which the district court had
already considered and dismissed. We held that "the District Court was correct in
refusing to grant leave to file an amended complaint which tendered the same claim
after the Court's decision against it." Matter of Estate of Wallace, 186 Mont. at 27,
606 P.2d at 140. Based upon our decision in Estate of Wallace, we conclude that
because there no longer existed a claim to be amended because summary judgment
had already been granted, the District Court was correct when it refused to grant
Video Warehouse leave to file an amended complaint.
ISSUE 3
¶36. Were certain findings of fact not supported by evidence or contrary to the
evidence?
¶37. The standard of review of a district court's findings of fact is whether they are
clearly erroneous. See Gallatin County v. Montana Eighteenth Judicial Dist. Court
(1997), 281 Mont. 33, 42-43, 930 P.2d 680, 686 (citing Rule 52(a), M.R.Civ.P.) We
have adopted a three-part test in Interstate Prod. Credit Ass'n v. DeSaye (1991), 250
Mont. 320, 820 P.2d 1285, to determine whether the findings are clearly erroneous.
The test provides that:
(1) The Court will determine whether the findings are supported by substantial evidence;
(2) If the findings are supported by substantial evidence, the Court will determine if the
trial court has misapprehended the evidence;
(3) If the findings are supported by substantial evidence and that evidence has not been
misapprehended, this Court may still conclude that "[a] finding is clearly erroneous when,
although there is evidence to support it, a review of the record leaves the court with the
definite and firm conviction that a mistake has been committed." (Citing United States v.
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United States Gypsum Co. (1948), 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746.)
DeSaye, 250 Mont. at 323, 820 P.2d at 1287. Moreover, "[a]n error in the court's findings
of fact will not lead to reversal unless a correction of the error might lead to a different
judgment." D&F Sanitation Service v. City of Billings (1986), 219 Mont. 437, 444, 713
P.2d 977, 981. Video Warehouse contends that the District Court's Findings of Fact Nos.
28, 35, 24, 27, 23, and 26 are clearly erroneous. Each of these findings will be addressed
separately.
Finding of Fact No. 28:
¶38. The District Court stated in Finding of Fact No. 28 that Video Warehouse failed
to adequately monitor the satellite locations and that if the locations were monitored
more closely, Video Warehouse would have detected the alleged shortcomings in
Town Pump's management.
¶39. Video Warehouse contends that this finding is erroneous for three reasons: first,
because a term of the contract between the parties provided that Town Pump was
responsible for renting the movies, collecting fees and managing the equipment;
second, because Town Pump's manager, Lee Terry, agreed to manage the equipment
in a businesslike manner; and third, because Video Warehouse's employees were
instructed not to make "unannounced" visits to the stores.
¶40. We agree with Town Pump that this finding is not clearly erroneous. Although
unannounced, or drop-in inspections were discouraged by Town Pump, Video
Warehouse was not restricted from making scheduled inspections of the stores, or
arranging an effective monitoring system with Town Pump. Certainly, scheduled
regular visits to the satellite stores would have allowed Video Warehouse a better
opportunity to detect and remedy the alleged shortcomings in Town Pump's
management of the video rental operations.
Finding of Fact No. 35:
¶41. Video Warehouse claims that there is no evidence to support Finding of Fact No.
35, in which the District Court stated that Video Warehouse relied on its own
projections rather than on the prior vendor's revenue figures. This finding was made
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in response to Video Warehouse's allegation that Town Pump induced it to enter into
the contract by providing false figures. Frey and Bielenberg-Prinzing clearly
testified, however, that Video Warehouse had made projections for Video Warehouse
using conservative figures approximately half of what Town Pump had represented,
which indicated that the operation would still be profitable if those figures were
achieved. Thus, we agree with Town Pump that Finding of Fact No. 35 is not clearly
erroneous.
Finding of Fact No. 24:
¶42. Video Warehouse claims that the District Court's Finding of Fact No. 24 was
also in error and not supported by substantial evidence. Finding of Fact No. 24
provides that Video Warehouse was undercapitalized in comparison to its
competitors in Helena and that more capitalization would have enabled Video
Warehouse to compete and maintain profitable business at all of its locations.
¶43. Our review of the record leads us to conclude that there is substantial evidence
to support this finding. Video Warehouse had initially projected that its expansion
into the Town Pump satellite operation would require an investment of more than
$136,000 during the first six months of operation. Video Warehouse's initial capital
infusion, however, consisted primarily of a $20,000 loan obtained in late December
1986. Video Warehouse obtained approximately 2000 used movies and a number of
video cassette players in May 1987. The value of these movies and equipment was
approximately $100,000. We agree with Town Pump that Video Warehouse simply
did not have enough capital to purchase a sufficient number of new release movies to
adequately supply its main store operation in Helena and its approximately thirty
satellite operations around the state. According to the expert witness testimony of
Robert Wilson, the availability of new release movies is the most important factor in
the success of a video operation. As testified to by Wilson, Video Warehouse was
purchasing about the same number of new release movies for all of its locations as
Wilson purchases for his single video rental store in Butte. This evidence was not
misapprehended by the District Court and clearly supports Finding of Fact No. 24.
Finding of Fact No. 27:
¶44. In Finding of Fact No. 27, the District Court stated that Video Warehouse made
allegations of various incidents of mismanagement, such as managers returning
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damaged movies and equipment to Video Warehouse and permitting store employees
to rent movies and equipment without paying the contract rental prices. The District
Court also stated that Town Pump acknowledged that three stores did have
management problems, but that Video Warehouse failed to prove any resulting
damages.
¶45. Video Warehouse maintains that this finding is nonsensical and absurd because
Town Pump controlled all of the paperwork with regard to the video rentals and so it
would have been impossible for Video Warehouse to document that it had incurred
any particular loss from any particular store.
¶46. We conclude, however, that Video Warehouse's very own assignment of error
demonstrates the accuracy of the District Court's finding that "Video Warehouse
failed to provide a monetary amount of damages incurred therefrom." The District
Court did not deny that Video Warehouse may have suffered damages from the
alleged mismanagement, it simply found that Video Warehouse failed to provide a
calculation or estimate of those damages alleged to have been suffered. By Video
Warehouse's own admission it did, in fact, fail to do this. The strongest argument
Video Warehouse offers with regard to damages for mismanagement is "what
[profit] Town Pump said should have been made versus what was [actually] made."
Although Video Warehouse claims it suffered damages, it fails to provide a more
definite and certain statement of a monetary amount of damages. Accordingly, the
District Court's Finding of Fact No. 27 is not clearly erroneous.
Finding of Fact No. 23:
¶47. In its Finding of Fact No. 23, the District Court found that the evidence showed
that Video Warehouse was unable to supply all of its satellite locations with enough
videos, including new releases, to maintain sufficient income and to remain
competitive with other video rental businesses.
¶48. Video Warehouse contends that this finding is not supported by substantial
evidence because Video Warehouse's inventory was similar to that of Stars to Go,
another video rental business, and because Robert Wilson, the expert witness who
disputed this fact, acknowledged that he had never operated video rental businesses
at convenience stores. We disagree.
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¶49. On most occasions, Video Warehouse purchased between four and ten copies of
popular movies for all of its locations including its store in Helena and its twenty-five
to thirty satellite locations. Robert Wilson, an expert witness and owner of another
video rental business, testified that he normally buys twice as many copies of popular
movies for just a single video rental location. Moreover, Video Warehouse's
employees testified that there were not enough copies of new release movies supplied
to the Helena main store operation. Bob Scheet testified that there was a severe
problem with a lack of new release movies at his store in Conrad, and Lee Terry also
testified to the identical problem.
¶50. Many of the new release movies were actually delivered to the stores for the first
time three to six months after the date of release. Bielenberg-Prinzing and Frey
acknowledged that the "revenue generating potential" of a movie "is all but over"
after ninety days. Thus, the useful life of many of the movies shipped to the Town
Pump stores, in terms of their revenue generating potential, had already expired
before they were received by the stores.
¶51. Accordingly, we conclude that the District Court's Finding of Fact No. 23 is not
clearly erroneous.
Finding of Fact No. 26:
¶52. In Finding of Fact No. 26, the District Court noted that Video Warehouse failed
to prove any monetary loss due to Town Pump's misuse of tickets which function as
receipts and records of video and equipment rental.
¶53. Video Warehouse maintains that this finding is clearly erroneous because the
misuse of tickets accounted for an average of seventy errors each month at a
minimum value of $3 per error which, according to Video Warehouse, is proof of
monetary loss.
¶54. Town Pump's accounting procedures, however, allowed video rental sales to be
tracked in two different ways; one by review of the actual tickets, and the other by
review of the daily cash register tapes which reflect video sales. We agree with the
District Court that Video Warehouse failed to demonstrate how the misuse of tickets
contributes to monetary loss when a second form of video rental tracking was
available. Moreover, Video Warehouse fails to demonstrate where in the record it
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provided the District Court with the monetary figures for loss due to misuse of the
tickets it provides this Court on appeal. Accordingly, we conclude that the District
Court's Finding of Fact No. 26 is not clearly erroneous.
¶55. Finally, Video Warehouse claims that the District Court erred because it
apparently overlooked the fact that exhibit 15 demonstrated that Town Pump failed
to pay all of the monies due because of missing movies after the store took its final
inventory. It maintains that the loss amounted to $4,634.69. However, based upon the
testimony of Bielenberg-Prinzing, exhibit 15 is merely a message slip that addresses
only an alleged amount owing. This amount due is not established, rather it is simply
an amount Video Warehouse claims it is owed. Other than this message slip, Video
Warehouse presented no evidence to the District Court to establish that this alleged
amount is actually due. Video Warehouse failed to meet its burden of proving its
claim for this amount, therefore, we conclude that the District Court did not err
when it did not account for this alleged debt owed to Video Warehouse in its award
of damages.
¶56. Accordingly, we conclude that all of the District Court's findings of fact are
supported by substantial evidence which was not misapprehended, and that no
mistake was made by the District Court. The judgment of the District Court is
affirmed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
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/S/ TERRY N. TRIEWEILER
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10 Cal.2d 454 (1937)
In the Matter of the Estate of RENE GRIVEL, Deceased. LEON R. GRIVEL, Administrator, etc., Respondent,
v.
JOHN R. WARDLAW, Administrator, etc., Appellant.
L. A. No. 15229.
Supreme Court of California. In Bank.
December 30, 1937.
Sherman Anderson and Guy Richards Crump for Appellant.
Lawler & Felix, as Amici Curiae, on Behalf of Appellant.
Edgar T. Fee and Franklin J. Cole for Respondent.
EDMONDS, J.
The controversy presented by this appeal concerns only the right of the estate of Rene Grivel to *455 the proceeds of the sale of certain cotton which, it is claimed, came into the possession of its administrator and was sold by him without accounting to the estate therefor. Sustaining objections made to the account of the administrator, the probate court made an order charging him and his sureties with the sum of $17,500 and interest. The appellant, who is the administrator of the estate of the deceased administrator, contends as ground for reversal that the findings of fact are not supported by the evidence and that these, in turn, do not support the order.
For about ten years and until his death in 1928, C. T. Wardlaw was the administrator with the will annexed of the estate of Rene Grivel by appointment from the Superior Court of Imperial County. After his death an amended and supplemental account of the estate was presented by John R. Wardlaw, as administrator of the estate of C. T. Wardlaw. This account was settled and allowed as to all items, except the cotton now in dispute, by an order which was affirmed upon appeal. (In re Estate of Grivel, 128 Cal.App. 186 [17 PaCal.2d 172].) Upon a further hearing of the account for the purpose of determining the issues concerning ownership of the cotton and the proceeds of its sale, the court upheld the objections of the successor administrator who claims that C. T. Wardlaw as administrator received 271 bales of cotton belonging to the estate of Rene Grivel and made no account therefor.
The findings of the court are that C. T. Wardlaw, while acting as administrator of the estate of Rene Grivel, came into possession of 271 bales of cotton which were the property of Rene Grivel and Henry De Nancy, a partnership; that Mr. De Nancy as the surviving partner of the deceased agreed with the administrator that he would deliver to him every alternate bale of cotton harvested from the partnership lease subsequent to the death of Grivel "as full payment of land rentals owing the Long Ranch and/or their lessees or landlord, and also that out of said cotton said ... administrator would satisfy in full the note of $17,500 owing the Globe Oil Mills Company, a corporation"; that the administrator procured 20 bales of cotton belonging to the partnership from the Globe Oil Mills Company, a corporation, "upon the assurance ... that he would pay the partnership note of $17,500 from the proceeds of the sale of the partnership cotton"; that none of the proceeds of *456 the sale of the cotton, which amounted to $39,906, was applied to the payment of $17,500 note or the land rentals, but was paid by one O. G. Hopkins, whom Mr. De Nancy "dealt with" as the agent of the administrator, to other persons and for other purposes with the knowledge and consent of the administrator and in violation of his agreement with the surviving partner. The conclusion of law from these facts is that the deceased administrator and his sureties are chargeable with $17,500 and interest.
[1] The trial court found that C. T. Wardlaw received the cotton as administrator and pursuant to an agreement to pay land rental and a note which were debts of the partnership, but it also found that the cotton was the property of the partnership. As partnership property it was not a part of the estate of the deceased partner (sec. 2419, Civ. Code; Perelli-Minetti v. Lawson, 205 Cal. 642 [272 P. 573]), and could have been recovered by the surviving partner. (Wrightson v. Dougherty, 5 Cal.2d 257 [54 PaCal.2d 13]; Fong Sing v. O'Dell, 50 Cal.App. 55 [194 P. 745]; Swanson v. Siem, 124 Cal.App. 519 [12 PaCal.2d 1053].) [2] The court did not find that Mr. Wardlaw misappropriated the proceeds of the cotton. It found only that they were used by Mr. Hopkins, with Mr. Wardlaw's consent, for purposes other than the payment of the two specified partnership debts. This is not a finding of fact which would charge the deceased administrator with the sum of $17,500 or any other amount.
The order is reversed, and inasmuch as it appears that no substantial showing could be made on a retrial that the cotton did not belong to the partnership, the trial court is directed to settle and allow the account as presented by the administrator of the estate of C. T. Wardlaw, deceased.
Shenk, J., Nourse, J., pro tem., Waste, C.J., and Langdon, J., concurred.
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ACCEPTED
04-15-00437-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/2/2015 5:02:41 PM
KEITH HOTTLE
CLERK
NO: 04-15-00437-CV
__________________________________________________________________
FILED IN
4th COURT OF APPEALS
In the Court of Appeals for the Fourth District of Texas
SAN ANTONIO, TEXAS
at San Antonio, Texas 12/2/2015 5:02:41 PM
KEITH E. HOTTLE
Clerk
LARRY A. VICK AND LINDA H. VICK,
Appellants,
vs.
FLORESVILLE INDEPENDENT SCHOOL DISTRICT, CITY OF
FLORESVILLE, WILSON COUNTY, LINEBARGER GOGGAN
BLAIR & SAMPSON, LLP, RASHAY K. CHAPA, and
WILSON COUNTY APPRAISAL DISTRICT
Appellees
Appeal from the 218th Judicial District Court
of Wilson County, Texas, the Honorable Russell Wilson Presiding
Trial Court Cause No. 14-08-0504-CVW-A
APPELLANTS’ NOTICE OF APPEARANCE OF NEW COUNSEL
AND DESIGNATION OF LEAD COUNSEL
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
PLEASE TAKE NOTE that the undersigned Attorneys and Firm hereby
appears as counsel for Appellants Larry A Vick and Linda H. Vick in the above
entitled and numbered appeal.
Appellants have engaged the law firm Twomey | May, PLLC. George May
of Twomey | May, PLLC is hereby designated as lead counsel for Appellants. The
undersigned, on behalf of Appellants, hereby requests that notices given or
required to be served in this appeal be given and served upon:
George F. May
TBA No. 24037050
[email protected]
TWOMEY | MAY, PLLC
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000 [Telephone]
(832) 201-8485 [Telecopier]
as counsel for Appellants.
Respectfully submitted,
TWOMEY MAY, PLLC
/s/ George F. May/
_______________________________
George F. May
State Bar No. 24037050
[email protected]
2 Riverway, 15th Floor
Houston, Texas 77056
(713) 659-0000 - Telephone
(832) 201-8485 - Facsimile
Dated: December 2, 2015
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a true and correct copy of the
above and foregoing has been forwarded to all parties and counsel of record,
pursuant to Rules 21 and 21a, Tex. R. Civ. P., on this 2nd day of December, 2015
to:
Nick Nicholas Via e-service and Via email:
Linebarger Groggan Blair [email protected]
& Sampson, LLP,
4828 Loop Central Drive
Suite 600
Houston, TX 77081
Attorneys for Rashay K. Chapa, Wilson County, and Linebarger Goggan Blair &
Sampson, LLP
Craig Wood Via e-service and Via email:
Elizabeth G. Neally [email protected]
Green & Trevenio, P.C.
100 N.E. Loop 410, Suite 900
San Antonio, TX 78216
Attorneys for Floresville Independent School District
Patrick C. Bernal Via e-service and Via email:
Elizabeth Guerrero-Southard [email protected]
Denton Navarro Rocha
Bernal Hyde & Zech
2517 N. Main Avenue
San Antonio, TX 78212
Attorneys for City of Floresville and Wilson County Appraisal District
/s/ George F. May/
_______________________________
George F. May
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341 Mich. 106 (1954)
67 N.W.2d 87
EDGECOMB
v.
TRAVERSE CITY SCHOOL DISTRICT.
Docket No. 60, Calendar No. 46,240.
Supreme Court of Michigan.
Decided November 29, 1954.
James R. Frederickson, and Murchie, Calcutt & Griffin (Roscoe O. Bonisteel and Roscoe O. Bonisteel, Jr., of counsel), for plaintiff.
Harry T. Running, for defendant.
*110 CARR, J.
During the year 1945 defendant school district inaugurated as a part of its school curriculum a veterans' institute program. Beginning on July 1, 1948, plaintiff was employed under a written contract as a teacher in said institute. He did not hold a teacher's general certificate, but was issued a so-called special certificate authorizing him to teach certain agricultural courses. New certificates were issued and new contracts made for each of the years beginning July 1, 1949, and July 1, 1950.
Following the expiration of his contract and his certificate on June 30, 1951, plaintiff continued to teach in the veterans' institute as he had done during the prior 3 years. It is undisputed that a special certificate was granted to him, as above stated, on application duly made therefor, under date of August 3, 1951, said certificate authorizing the teaching of "institutional on-farm training in veteran classes for the period July 1, 1951 to June 30, 1952." The parties also entered into a written contract covering plaintiff's services. The plaintiff claims that said contract was actually prepared and signed in September, after he had been working approximately 2-1/2 months of the school year. On behalf of defendant testimony was introduced on the trial of the case in circuit court that the "usual practice" was to send out contracts to teachers during May or June preceding the beginning of the school year covered by such contracts. The trial court left the issue to the determination of the jury, which, as the verdict returned indicated, accepted plaintiff's claim as to when the contract was actually signed and filed. Such finding was supported by a preponderance of the testimony and must be accepted as conclusive.
After the signing of the contract plaintiff continued his work until sometime in December, when he was apprised of facts indicating that his services *111 were no longer required. It is a fair inference from the record that he was discharged because of a decrease in the number of students enrolled in the veterans' institute. He did not obtain other employment in the teaching profession but received a total of approximately $500 by way of commission as a real-estate salesman, which commission, he testified, he might have earned had he continued teaching. Claiming that he was wrongfully discharged, plaintiff brought the present action in circuit court to recover damages for breach of contract. At the conclusion of his proofs defendant moved for a directed verdict, decision on the motion being reserved. At the conclusion of the testimony the motion was renewed, and plaintiff made a similar motion for judgment in his favor. Each party reserved the right to have the issues in the case submitted to the jury in the event of a denial of his or its motion. Decision on the motions was reserved by the court[*] and the case submitted to the jury, which returned a verdict in plaintiff's favor for 1/2 of his contract salary for the year. Defendant's motion for judgment notwithstanding the verdict was denied, and it has appealed.
On the trial in circuit court the defendant contended that the contract for the breach of which plaintiff sought to recover damages was invalid. Reliance was placed on CL 1948, § 352.22 (Stat Ann § 15.394) which contains the following provision:
"No contract with any person shall be valid unless such person shall hold a legal certificate of qualification at the time the contractual period shall begin."
On appeal emphasis is placed on the fact that the contract as written was dated July 1, 1951, and the claim is made, in effect, that such date must be regarded *112 as the beginning of the contractual period. If such contract was actually signed and filed with defendant's superintendent in September, as the weight of the evidence indicates and as the jury found, it is obvious that defendant's representatives preparing the contract predated it to the beginning of the school year. Possible reasons for such action do not require discussion in the instant controversy.
It is not disputed that during the period between the opening of the school year and the signing of the contract plaintiff performed his duties as a teacher and was regularly paid by the defendant for his services. As before noted, the certificate authorizing him to give instruction on certain subjects in the veterans' institute was issued August 3, 1951. The contract having been made after that date was not rendered invalid by the provision of the statute above quoted. It may not be assumed that defendant's representatives, in predating the contract, intended to violate the statute or to vitiate the contract. It is significant, also, that after the signing of the contract plaintiff continued in defendant's employ until the latter part of December. The defendant is scarcely in position now to claim that the contract was invalid for the reason urged. McLaughlin v. Board of Education of Fordson School District of City of Dearborn, 255 Mich 667. The period of employment under the contract in question began with its signing and filing with defendant. It may not be construed as covering services actually rendered and paid for before its execution. On the basis of the record before us, we conclude that defendant's claim as to the invalidity of the written contract is without merit.
Defendant further contends that plaintiff did not make reasonable efforts to mitigate his damages. That it was his duty to do so is not questioned. However, the burden of proof rested on defendant of *113 showing that plaintiff might have secured other employment in the teaching profession if he had attempted in good faith to do so. It must be borne in mind in this connection, however, that the special certificate issued to him in terms merely authorized him to teach "institutional on-farm training in veteran classes." Defendant's superintendent testified as to the existence of a possible opening on a college farm, but whether plaintiff could have obtained such position and whether it was of such nature as to have been reasonably within the field of his work as a teacher does not appear. The jury, under the instruction of the court, concluded that defendant had not shown that plaintiff might have lessened or obviated the damages that he actually sustained because of the breach of contract.
This Court has in prior decisions considered questions analogous to those involved in the case at bar. In Smith v. School District No. 2 of Pleasant Plains, 69 Mich 589, the plaintiff contracted with the defendant school district for employment for a period of 9 months. Before the completion of such period the schoolhouse burned and plaintiff was notified that the school would not be continued. She did not obtain employment elsewhere, and apparently made no effort to do so. Defendant contested her right to recover damages on the theory of breach of contract on the ground that for a period of a month and a half after she entered on her work under the contract no copy of her teacher's certificate had been filed with the county board of school examiners, as required by statute then in force. In affirming a judgment for plaintiff on a directed verdict, it was said (pp 591, 592):
"We do not consider it necessary to discuss this point, however. The plaintiff was paid by the school *114 district for the month and a half that she taught before the filing of her certificate, and for 4 months after. During the time for which she seeks to recover she was a qualified teacher, under the strict terms of the statute, and she is as much entitled to her pay as she would have been had she actually taught until the end of her term. If she had actually taught the whole term, the school district would not have been permitted to raise this technical point that her certificate was not filed until October 30, 1886. See Crane v. School District No. 6 of the Township of Bennington, 61 Mich 299, 306. Neither will they be allowed to do so under the circumstances of this case. We do not think the plaintiff was bound to look up any other school, or endeavor to find other employment, during the remainder of her term. It was not her duty to find work not in her vocation, and it was out of the season to obtain a situation as a schoolteacher."
In Farrell v. School District No. 2 of the Township of Rubicon, 98 Mich 43, the school board of the defendant at the opening of school refused to permit plaintiff to proceed under a contract, held by the trial court and by this Court to have been valid. In affirming the judgment in plaintiff's favor, it was said, in part (pp 47, 48):
"When a master rescinds a contract of service before the time agreed for the commencement of such service, the servant has his choice of 2 courses, he may consider and treat the contract as rescinded, or he may treat it as still existing, and tender performance at the proper time. Howard v. Daly, 61 NY 362 (19 Am Rep 285). The same reasoning does not apply to a rescission before the time fixed for the service to commence that does to a discharge from service. In the latter case the servant is presumed to be out of employment, and it is clearly his duty to accept other similar employment; but in the former case he is not presumed to be out of employment, *115 and cannot therefore, in reason, be required to seek other employment to cover the future period. If, however, as in the case of teachers, they are taking their vacation for rest and recreation, they cannot legally be called upon to abandon these, and seek employment for the coming year. Plaintiff was therefore justified in notifying defendant that she would insist upon her contract, and be ready at the proper time to perform it."
The decisions in the Smith and Farrell Cases were cited with approval in Carver v. School District No. 6 of Battle Creek Township, 113 Mich 524, 530.
The general rule as to the duty of an injured party seeking to recover damages for breach of contract to minimize his loss, and the burden of proof thereon, was stated in Rich v. Daily Creamery Co., 296 Mich 270, 282 (134 ALR 232), as follows:
"There is no question but that it is a well-established rule that in case of a breach of contract the injured party must make every reasonable effort to minimize the damages suffered and that it would be the duty of the court upon request so to charge the jury. We hold, however, under the authorities that the burden is upon the defendant to show in mitigation of the damages claimed that the plaintiff has not used every reasonable effort within his power so to minimize his damages. Tradesman Co. v. Superior Manfg. Co., 147 Mich 702; Flickema v. Henry Kraker Co., 252 Mich 406 (72 ALR 1046); Milligan v. Haggerty, 296 Mich 62. The same rule is applicable in tort actions as in actions for breach of contract."
See, also, Januska v. Mullins, 329 Mich 606; Van Lierop v. Chesapeake & Ohio Railway Company, 335 Mich 702.
In view of the record in the present case language found in the opinion of the court in Byrne v. Independent School District of Struble, 139 Iowa 618 (117 *116 NW 983), is of interest. It was there said, in part (pp 620, 621):
"The rules applicable to ordinary contracts of employment so far as the measure of damages is concerned obtain in cases of breach of contract to teach school. Park v. Independent School District of Pleasant Grove, 65 Iowa 209 (21 NW 567). And when such contract is disregarded by the school district and the teacher is denied the right to perform, it is her duty to find other employment, and, when sued, the school district may show that she has found other employment, or that by the use of reasonable diligence she might have found other employment for the purpose of mitigating the damages; but, if the discharged teacher did not accept other employment, her damages should not be diminished for failure to secure it, unless it be shown that by reasonable diligence she might have secured employment of the same grade in the same grade in the same locality where she was employed to teach. She was not required to accept employment in another locality or of a different or lower grade. The law is very clear on this proposition. Jackson v. Independent School District of Steamboat Rock, 110 Iowa 313, 316 (81 NW 596), 8 Encyclopaedia of Evidence, pp 517, 518, and cases cited. Going now to the allegations of the answer, it will be observed that they do not bring the case within these rules. There is no averment that plaintiff might have found employment in the same locality, or that the schools were of the same grade as that contemplated in the contract between plaintiff and defendant. For these reasons, the third division of the answer did not constitute a defense, nor did it amount to a good plea in mitigation of damages."
In an annotation in 134 ALR, pp 242, 243, it is said:
"The overwhelming weight of authority is to the effect that in actions for damages arising out of either breach of contract or tort the burden is upon *117 the party whose wrongful act caused the damages complained of to prove anything in diminution of the damages, or, in other words, that the damages were lessened or might have been lessened by reasonable diligence on the part of the aggrieved party."
Defendant's proofs in the instant case were insufficient to require a finding by the jury that plaintiff might have mitigated his damages. As pointed out in the cases above cited, plaintiff was not required to seek employment in any line of service other than that in which he was employed by defendant. The contract was breached during the middle of the school year. No satisfactory showing was made on the trial that plaintiff might have obtained a similar teaching position in the locality. The finding of the jury may not be disturbed.
Proof was offered by defendant on the trial to the effect that during the month of April preceding the execution of the contract involved in the instant controversy the superintendent of schools for defendant district called the attention of plaintiff and others to the possible necessity of curtailing the veterans' institute program. It is claimed that some discussion with reference to the matter took place at a meeting held on April 16, 1951, at which a letter from the superintendent was read calling attention to the situation and an anticipated necessity for reducing the teaching force. Objections to offering such testimony before the jury were made and sustained. Defendant contends that such rulings were erroneous, and that the testimony was competent on the theory that it tended to show that plaintiff knew or should have known when the contract was signed that he might be laid off before the end of the school year, and that he should have acted accordingly in order to be prepared to minimize his loss when, and if, he should be discharged.
*118 The contract, as prepared by defendant, made no provision for possible termination for the reason suggested. CL 1948, § 352.22 (Stat Ann 1953 Rev § 15.394) requires that:
"All contracts with teachers shall be in writing and signed by a majority of the board in behalf of the district, or by the president and secretary, or by the superintendent of schools when so directed at a meeting of the board."
In effect, defendant contends that it should have been permitted to advance in the trial court its claim that the contract as actually executed embodied an implied condition, based upon an assumed understanding of the parties. Any such action would obviously violate the provision of the statute above quoted, in that it would permit the contract to rest in a material respect on a parol agreement or understanding. It would also mean the varying of the terms of the written instrument, thus violating the so-called parol evidence rule.
When the written contract was entered into by the parties in substantially the same form as in prior years, we think plaintiff was entitled to rely thereon. Had defendant wished to reserve the right to discharge plaintiff it should have insisted on the insertion of a provision permitting it to do so. It may not now seek to avoid its obligation to reimburse him for the damages resulting from the breach of contract on the theory that he should have anticipated such breach and have sought opportunities for employment elsewhere. The trial court was not in error in refusing to permit the jury to consider the proffered testimony.
The somewhat general claim is made by appellant that errors were committed by the trial judge in his charge to the jury. Considering the charge as a whole, however, we think that the issues involved *119 were fairly submitted, and that, under the pleadings and the proofs in the case, defendant may not properly claim that it was prejudiced in any material respect. We find no reversible error in the record.
The judgment of the trial court is affirmed, with costs to plaintiff.
BUTZEL, C.J., and BUSHNELL, SHARPE, BOYLES, REID, DETHMERS, and KELLY, JJ., concurred.
NOTES
[*] See CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1953 Cum Supp § 27.1461 et seq.). REPORTER.
| {
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} |
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
EDWARD G. MANS, Plaintiff/Counterdefendant/Appellee,
JEANNETTE MANS, Counterdefendant/Appellee,
v.
LAWSON PRODUCTS, INC., Defendant/Counterclaimant/Appellant.
No. 1 CA-CV 13-0422
FILED 12-09-2014
Appeal from the Superior Court in Maricopa County
No. CV2011-014264
The Honorable Douglas L. Rayes, Judge
AFFIRMED
COUNSEL
Osborn Maledon, Phoenix
By Thomas L. Hudson, John L. Blanchard and Sharad H. Desai
Counsel for Plaintiff/Counterdefendants/Appellees
Littler Mendelson PC, Phoenix
By J. Mark Ogden and Christie L. Kriegsfeld
Counsel for Defendant/Counterclaimant/Appellant
MANS v. LAWSON
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.
G O U L D, Judge:
¶1 Lawson Products Inc. (“Lawson”) appeals from the trial
court’s judgment in favor of its former employee, Edward Mans. For the
reasons discussed below, we affirm.
BACKGROUND
¶2 Lawson is a seller and distributor of industrial maintenance
and repair products. Mans was employed by Lawson as a regional
manager. In connection with his employment, he entered a Regional
Manager Employment Agreement (“Employment Agreement”) on
January 1, 2001.
¶3 The Employment Agreement contained two restrictive
covenants prohibiting Mans from (1) soliciting Lawson’s
agents/employees and (2) contacting Lawson’s customers. The restrictive
covenants precluded Mans from competing with Lawson for “two (2)
years following the effective date of termination . . . whether such
termination is . . . for or without cause.” In the case of termination
without cause, Mans would receive semi-monthly payments of his Base
Salary for two years. In consideration for these payments, the
Employment Agreement required Mans to “perform only those consulting
or other services specifically authorized and directed by his Supervisor”
from the date of his receiving notice to his effective termination date.
However, if Mans breached the restrictive covenants he would no longer
be entitled to the payments and would be required to return “all such
payments already received.”
¶4 Due to the economic downturn, Lawson reorganized its
workforce and terminated Mans’ employment without cause. On July 24,
2009, Mans received written notice of termination of his employment with
Lawson. The letter stated that pursuant to the Employment Agreement,
the effective date of Mans’ termination would be on July 23, 2011, two
2
MANS v. LAWSON
Decision of the Court
years from the date of the notice. The letter further stated that in
accordance with the terms of the Employment Agreement, Mans would
receive “a two-year period of semi-monthly payments at [his] current Base
Salary” for the period from receipt of the notice (July 2009) up to his
effective termination date (July 2011).
¶5 In September 2009, Lawson and Mans entered into a
Separation Agreement. The Separation Agreement purported to “modify
the Employment Agreement so that [Mans’] last work day will be July 24,
2009,” and to “confirm the arrangements for compensation and benefits
after July 24, 2009, so that [Mans’] employment with [Lawson] will
terminate effective July 27, 2011.” Under the Separation Agreement, Mans
was relieved of all of his duties – including his duty to consult – as of July
24, 2009. For the period between the notice of termination (July 24, 2009)
and the effective termination date (July 27, 2011), Mans would continue to
receive his salary in accordance with the Employment Agreement. Mans
also remained eligible to participate in employment benefits during this
time period and would be provided outplacement services to be paid for
by Lawson. The Separation Agreement incorporates the restrictive
covenants contained in the Employment Agreement, directing that they
would run from the effective termination date, July 27, 2011, through July
26, 2013.
¶6 The Separation Agreement required Mans to provide a
General Release to Lawson of any claims “arising out of or related to
[Mans’] employment with and/or separation from employment with
[Lawson].” Mans also agreed never to sue or become a party to a lawsuit
“on the basis of any claim . . . arising out of or related to [his] employment
with and/or separation from employment with [Lawson].” Breach of this
agreement not to sue would result in Mans’ obligation to pay, at the
option of Lawson, either the resulting litigation expenses or, as an
alternative, repayment of all but $100 of the severance payments paid by
Lawson to Mans under the Employment Agreement.
¶7 In August 2011, shortly after his effective termination date,
Mans filed a complaint requesting (1) a declaratory judgment that the
restrictive covenants in the Employment Agreement were unenforceable
and (2) an injunction prohibiting Lawson from enforcing the restrictive
covenants. Lawson filed an answer and counterclaim alleging that Mans
had breached the agreement not to sue in the Separation Agreement
(Count One) and the restrictive covenants (Count Two). Lawson sought
liquidated damages pursuant to the Separation Agreement in the amount
of Mans’ severance payments less $100.
3
MANS v. LAWSON
Decision of the Court
¶8 Mans moved for summary judgment seeking a declaration
that, because he was terminated by Lawson without cause, the restrictive
covenants in the Employment Agreement were unenforceable. The court
granted Mans’ motion, and, as a result, Mans was granted the declaratory
judgment and injunctive relief he requested in his complaint, as well as
dismissal of Count Two in Lawson’s counterclaim.
¶9 Lawson then filed a motion for partial summary judgment
as to Count One of its counterclaim, seeking liquidated damages for Mans’
breach of the agreement not to sue in the Separation Agreement. Mans
filed a response and cross-moved for summary judgment, arguing the
agreement not to sue and the liquidated damages provision in the
Separation Agreement were unenforceable. The court granted Lawson’s
motion, finding the Separation Agreement was a valid enforceable
contract and that the liquidated damages provision was not an
unenforceable penalty because of exculpatory language in the contract.
¶10 Mans then filed a motion for new trial, arguing the court
erred in denying his cross-motion because it incorrectly concluded the
liquidated damages clause was not an unenforceable penalty. The motion
did not seek to disturb any other aspect of the court’s ruling; however, in
seeking a declaration that the liquidated damages provision was
unenforceable, Mans re-urged the argument in his cross-motion for
summary judgment that the agreement not to sue was also unenforceable.
The court granted Mans’ motion for new trial; it concluded its prior ruling
was contrary to law because the liquidated damages clause was an
unenforceable penalty. The court also granted Mans’ cross-motion for
summary judgment. Lawson timely appealed.
DISCUSSION
I. Choice of Law
¶11 Both the Employment Agreement and the Separation
Agreement contain choice of law provisions; the Employment Agreement
states Nevada law applies, while the Separation Agreement specifies that
Illinois law applies. The Separation Agreement modifies the Employment
Agreement and directs that any conflict between the terms of the two
agreements will be controlled by the Separation Agreement. Accordingly,
the parties and the court applied the chosen law, Illinois, to substantive
issues, but the forum law, Arizona, to procedural matters. See Nanini v.
Nanini, 166 Ariz. 287, 290, 802 P.2d 438, 441 (App. 1990) (stating that the
chosen state’s law will govern a contractual relationship as long as the
4
MANS v. LAWSON
Decision of the Court
chosen law has some nexus with the parties or the contract); Aries v.
Palmer Johnson, Inc., 153 Ariz. 250, 257, 735 P.2d 1373, 1380 (App. 1987)
(“Procedural matters are usually governed by the law of the forum.”). We
therefore apply Arizona law to procedural matters and Illinois law to
substantive issues.
II. Standard of Review
¶12 Where no material facts are in dispute, we “review a trial
court’s grant of summary judgment de novo and independently determine
whether a court’s legal conclusions were correct.” Ledvina v. Cerasani, 213
Ariz. 569, 570, ¶ 3, 146 P.3d 70, 71 (App. 2006). This case presents
questions of contract interpretation. “The interpretation of any contract is
a question of law to be determined by the appellate court independently
of the trial court’s judgment and in accordance with general rules
applicable to contract construction.” Schwinder v. Austin Bank of Chicago,
809 N.E.2d 180, 189-90 (Ill. App. Ct. 2004). The enforceability of a
restrictive covenant is a question of law, and we review the trial court’s
determination de novo. Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393,
395-96 (Ill. 2011).
III. The Employment Agreement
¶13 Mans argues any alleged breach of the restrictive covenants
is moot because the time period for the restrictive covenants has expired.
We disagree. Mans has admitted to breaching the restrictive covenants
when he began working for a competitor in August 2011. Accordingly,
our determination of whether the restrictive covenants are enforceable
against Mans will have a direct impact on Lawson’s breach of contract
claims that are based on Mans’ violation of those restrictive covenants. See
Berlin v. Sara Bush Lincoln Health Cntr., 688 N.E.2d 106, 109 (Ill. 1997)
(stating that “where a decision ‘could have a direct impact on the rights
and duties of the parties’ there is life in the appeal”).
A. Restrictive Covenants
¶14 Although all restrictive covenants in employment contracts
are not void, Illinois has a public policy of providing employees greater
protection from the negative effects of restrictive covenants. Brown &
Brown, Inc. v. Mudron, 887 N.E.2d 437, 440 (Ill. App. Ct. 2008). Consistent
with this public policy, under Illinois law, an employer that terminates an
employee without cause cannot enforce restrictive covenants against the
employee. Bishop v. Lakeland Animal Hosp., P.C., 644 N.E.2d 33, 36-37 (Ill.
App. Ct. 1994) (“[I]n order for a noncompetition clause to be enforceable,
5
MANS v. LAWSON
Decision of the Court
first, the employee must have been terminated for cause or by his own
accord.”); cf. Francorp, Inc. v. Siebert, 126 F.Supp. 2d 543, 546 (N.D. Ill. 2000)
(stating that pursuant to Illinois law “an employer cannot enforce a
noncompetition agreement against an employee who has been dismissed
without cause”).
¶15 Lawson argues that because it did not terminate Mans in
bad faith, the rule in Bishop does not apply. However, the holding in
Bishop is not limited to the bad faith termination of an employee. Rather,
the court’s holding is based on the reasoning that the implied promise of
good faith “’modifies [the employer’s] discretionary right to dismiss [the
employee] and then to invoke the restrictive covenant.’” Bishop, 644
N.E.2d at 36 (quoting Rao v. Rao, 718 F.2d 219, 223 (7th Cir. 1983)). As a
result, Bishop concluded “that the implied promise of good faith inherent
in every contract precludes the enforcement of a noncompetition clause
when the employee is dismissed without cause.” Bishop, 644 N.E.2d at 36.
¶16 To avoid Bishop, Lawson seeks to validate the applicability
and enforceability of the restrictive covenants under the reasonableness
analysis contained in Reliable Fire Equip. Co. v. Arredondo, 965 N.E.2d 393
(Ill. 2011). Lawson’s reliance on Reliable Fire is misplaced. Reliable Fire
does not alter or address the rule set forth in Bishop, and is factually
distinguishable; the employees were not terminated without cause, but
rather were violating their non-compete clause while still employed. Id. at
395, ¶ 4-6.
¶17 Here, Lawson does not dispute that Mans was terminated
without cause, and accordingly the rule in Bishop, which is still good law,
clearly applies. The restrictive covenants are unenforceable against Mans.
B. Lawson’s Laches Argument
¶18 Lawson argues Mans’ claim should be barred by laches
because he waited to file his complaint until after he received the entirety
of his severance payments. “The two fundamental elements of laches are
(1) a lack of due diligence by the party asserting the claim and (2)
prejudice to the opposing party.” Jameson Realty Grp. v. Kostiner, 813
N.E.2d 1124, 1137 (Ill. App. Ct. 2004).
¶19 Lawson suffered no prejudice and, as a result, its laches
claim fails. In re Marriage of Smith, 806 N.E.2d 727, 733 (Ill. App. Ct. 2004)
(stating that the failure to show resulting prejudice “obviates the need to
address” whether the claim was diligently filed). Under the Employment
Agreement, Lawson was contractually required to pay Mans his severance
6
MANS v. LAWSON
Decision of the Court
salary for two years. Lawson states that Mans’ delay “caused significant
financial detriment to [Lawson],” but Lawson has not shown how it is
prejudiced by the fact that it paid Mans his contractually owed severance
payments. Additionally, because the restrictive covenants were
unenforceable from the moment Mans was terminated without cause, the
timing of the suit did not prejudice Lawson; Mans remained entitled to his
severance pay. See supra, ¶¶ 14-17.
IV. The Separation Agreement
¶20 About a month after receiving his notice of termination,
Mans signed the Separation Agreement. The Separation Agreement did
not modify the substantive terms of the restrictive covenants contained in
the Employment Agreement; rather, it incorporated the restrictive
covenants and specified their applicable dates and duration. The
Separation Agreement did alter the conditions and benefits of Mans’
severance payments by providing that he was relieved of all consulting
duties and entitled to some additional benefits.
¶21 The Separation Agreement also included Mans’ agreement
not to sue and the accompanying liquidated damages for breach of that
agreement, as well as the General Release from all claims related to Mans’
employment. In its counterclaim, Lawson sought to enforce these
provisions against Mans.
A. The Liquidated Damages Provision
¶22 Lawson argues the court improperly granted Mans’ motion
for new trial because the law and evidence supported the court’s first
conclusion that the liquidated damages provision was not an
unenforceable penalty.
¶23 We review an order granting a new trial for abuse of
discretion. Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 325, 762 P.2d 609,
612 (App. 1988). We review the court’s legal determination of whether the
contractual provision is a valid liquidated damages clause or an
unenforceable penalty de novo. Med+Plus Neck & Back Pain Ctr., v.
Noffsinger, 726 N.E.2d 687, 693 (Ill. App. Ct. 2000). Each liquidated
damages provision must be evaluated on its own facts and circumstances.
Karimi v. 401 N. Wabash Venture, LLC, 952 N.E.2d 1278, 1285 (Ill. App. Ct.
2011).
7
MANS v. LAWSON
Decision of the Court
¶24 Illinois follows a three-part test, based on the Restatement
(Second) of Contracts § 356 (1981), in determining whether a liquidated
damages clause is valid or is an unenforceable penalty:
(1) the parties intended to agree in advance to the settlement
of damages that might arise from the breach; (2) the amount
of liquidated damages was reasonable at the time of
contracting, bearing some relation to the damages which
might be sustained; and (3) actual damages would be
uncertain in amount and difficult to prove.
Kostiner, 813 N.E.2d at 1130 (quoting Noffsinger, 726 N.E.2d at 693).
Consistent with this directive, exculpatory language stating the liquidated
damages provision is not a penalty should be given some weight, but is
not controlling. Kostiner, 813 N.E.2d at 1131.
¶25 “In Illinois, a provision that allows a defendant the option to
receive liquidated damages or seek actual damages is unenforceable as a
penalty.” Burke v. 401 Wabash Venture, LLC, 714 F.3d 501, 508-09 (7th Cir.
2013) (citing Karimi, 952 N.E.2d at 1287 ¶ 21). Such a “damages” option
does not meet the requirement that the parties agree, at the time of
contracting, to a sum certain; instead, it allows one party to penalize
another party by providing for “a minimum recovery regardless of actual
damages,” and also allowing the enforcing party to “disregard liquidated
damages if actual damages exceeded the specified amount.” Karimi, 952
N.E.2d at 1287, ¶ 21. “This negates the purpose of liquidated damages,
which is to provide parties with an agreed upon, predetermined damages
amount when actual damages may be difficult to ascertain.” Burke, 714
F.3d at 509.
¶26 The liquidated damages provision in the Separation
Agreement is unenforceable because, in the event Mans breaches the
agreement not to sue, Lawson has the option to seek its actual damages in
the form of litigation costs and expenses, or to demand that Mans repay
all but $100 of his severance payments. As a result, the Separation
Agreement impermissibly provides Lawson with a guarantee of
recovering, at a minimum, the return of Mans’ severance pay, amounting
to over $350,000, regardless of the actual damages incurred from Mans’
breach.
¶27 Lawson attempts to save the liquidated damages provision
by claiming that its purpose is to compensate Lawson for the
undeterminable damages that might result from Mans’ breach of the
8
MANS v. LAWSON
Decision of the Court
restrictive covenants. However, the liquidated damages provision is very
clearly limited to Mans’ breach of the agreement not to sue.
Consequently, any damages resulting from that breach would be the costs
of litigation, a cost that could be determined with precision and would not
be “difficult to prove.” See Kostiner, 813 N.E.2d at 1130 (quoting Noffsinger,
726 N.E.2d at 693).
¶28 Based on the terms of the liquidated damages provision, it is
an unenforceable penalty, and it cannot be saved by the contract language
stating it “shall not be deemed to be a penalty.” Accordingly, the court
did not abuse its discretion in granting Mans’ motion for new trial on the
enforceability of the liquidated damages provision.
B. The Agreement Not to Sue
¶29 Lawson also appeals the court’s grant of Mans’ cross-motion
for summary judgment. Lawson argues that in granting the motion, the
court improperly found the agreement not to sue was unenforceable.
¶30 In granting Mans’ cross-motion for summary judgment, the
court stated that the liquidated damages provision in the Separation
Agreement was unenforceable. The court decided, with no further
explanation, to grant Mans’ cross-motion and dismiss Lawson’s sole
remaining claim for breach of contract based on the covenant not to sue.
¶31 Lawson’s counterclaim alleges no claims for relief
independent of the restrictive covenants and liquidated damages
provisions. Thus, the court’s determination that both the restrictive
covenants and the liquidated damages provision were unenforceable was
tantamount to dismissal of Lawson’s counterclaim.1 As a result, the trial
court appropriately granted summary judgment as to Lawson’s claim for
breach of the covenant not to sue. See Comerica Bank v. Mahmoodi, 224
Ariz. 289, 291, ¶ 12, 229 P.3d 1031, 1033 (App. 2010) (stating that summary
judgment is proper if a party is entitled to judgment as a matter of law);
1 In their briefs, the parties agree that the order finding the
Separation Agreement to be valid and enforceable survived both the
court’s grant of Mans’ motion for new trial and the determination that the
liquidated damages provision was an unenforceable penalty. However,
validity of the Separation Agreement, apart from the restrictive covenants
and the liquidated damages provision, is not the basis for Lawson’s claims
for relief in its counterclaim.
9
MANS v. LAWSON
Decision of the Court
Gardner v. Royal Dev. Co., 11 Ariz. App. 447, 451, 465 P.2d 386, 390 (1970)
(stating that appellate court will assume the court made all necessary
findings to support the judgment).
CONCLUSION
¶32 For the reasons above, we affirm the trial court’s judgment.
:ama
10
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220 B.R. 328 (1998)
UNITED STATES of America, Appellant,
v.
William Douglas MANNING, Jr. and Donna Lichenstein Manning, Appellees.
No. 1:97-CV-0072.
United States District Court, E.D. Texas, Beaumont Division.
February 10, 1998.
*329 Susan Mary Pinner, Internal Revenue Service, Houston, TX, for Plaintiff.
Frank J. Maida, Beaumont, TX, for Defendant.
MEMORANDUM OPINION AND ORDER
COBB, District Judge.
Before this court is Appellant's Motion to Set Aside, filed by the United States of America. Appellant seeks to set aside this court's Order of October 3, 1997 dismissing the United States' appeal from a judgment of the Bankruptcy court. This court finds that the United States' dilatory practice in this case is not justified by any reasonable explanation and no sanction other than dismissal of the appeal is available or appropriate. The Motion to Set Aside, therefore, is DENIED.
I. FACTUAL BACKGROUND
Appellees, William and Donna Manning, brought an action against the Internal Revenue Service ("IRS") in Bankruptcy court to have tax liabilities from the years 1985, 1986, and 1987 declared dischargeable. On December 19, 1996, the Bankruptcy court held that IRS was estopped from claiming that the statute of limitation in which to assess the liability was tolled and, therefore, the statute had run and the debts were dischargeable.
The United States of America, on behalf of the IRS, filed a timely notice of appeal on January 3, 1997. The record was prepared and filed in this court on February 11, 1997. Also on February 11, the clerk of the Eastern District assigned the appeal to Track VI of the Civil Justice Expense and Delay Reduction Plan, in accordance with the established policy of the District. Nothing further transpired in this case for a period of over seven and a half months, from the time of the track assignment to October 3, 1997, until this court rendered an order dismissing the appeal for lack of prosecution.
The United States immediately filed a motion to vacate this court's order of dismissal. The United States alleges that, because the case was assigned to Track VI, the attorney for the United States was waiting for a scheduling order from the judge before filing *330 the required brief. Therefore, the delay in proceeding with the case was reasonable.
II. ANALYSIS
A. The Violation of Rule 8009
Federal Rule of Bankruptcy Procedure 8009(a) states: "Unless the district court or the bankruptcy appellate panel by local rule or by order excuses the filing of briefs or specifies different time limits: (1) The appellant shall serve and file his brief within 15 days after entry of the appeal on the docket pursuant to Rule 8007." The local rules of court, provided by the Eastern District, do not excuse the filing of briefs nor specify a different time limit. Nor do the local rules specifically state or even suggest that cases assigned to Track VI are exempt from the Federal Rules of Bankruptcy Procedure. Furthermore, there is nothing in the local rules nor in the custom or practice of this court that implies that the filing of bankruptcy briefs are excused until a scheduling order has been entered by the court.
Therefore, the United States' failure to file a brief within seven and a half months after the entry of the appeal on the docket was a clear violation of Rule 8009 and is not excused by the attorney's confusion as to the Track VI assignment. At the very least, the United States should have inquired to this court regarding a scheduling order after thirty or sixty days had passed from the entry on the docket. The question remaining, then, is that of an appropriate sanction.
B. The Appropriate Sanction
The dismissal of a bankruptcy appeal is an admittedly drastic measure. It is a sanction within the discretion of the district court, however, and is appropriate in certain circumstances. See Fed.R.Bankr.P. 8001[1]; In re Braniff Airways, 774 F.2d 1303 (5th Cir.1985); In re Scheri, 51 F.3d 71, 74 (7th Cir.1995). In choosing an appropriate sanction, the district court should consider the egregiousness of the dilatory conduct and any explanation offered by the dilatory party, the equity of dismissing the client's appeal due to the lawyer's conduct, and the efficacy of lesser sanctions. See generally In re Braniff, supra; Pyramid Mobile Homes, Inc. v. Speake, 531 F.2d 743 (5th Cir.1976); In re Scheri, supra; Dodson v. Runyon, 86 F.3d 37 (2nd Cir.1996).
1. Egregiousness of the Dilatory Conduct and the Explanation Offered by the Dilatory Party
Counsel for the United States failed to make any effort whatsoever for a period of seven and a half months. Perhaps it was reasonable, as alleged by the Appellant, for counsel for the United States to have been confused by the assignment to Track VI and to have missed the fifteen day deadline while awaiting instruction from the court. After thirty days, however, a diligent attorney would have inquired to the court as to the status of the scheduling order. After a couple months, a reasonably diligent attorney would have realized that no scheduling order was forthcoming and that a brief was already overdue. Attorneys have a duty not only to manage their cases diligently, but to make whatever inquiry is necessary to ensure that their cases are expeditiously handled. Allowing a case to linger unattended for seven and a half months is an egregious violation of an attorney's duties. The proffered explanation for the delay, that the assignment of the case to Track VI caused confusion as to the responsibilities of the parties, is not a reasonable one and does not excuse the dilatory conduct.
2. The Equity of Dismissing the Client's Appeal Due to the Lawyer's Conduct
The dismissal of a bankruptcy appeal is a drastic measure which ultimately affects the rights of the client more than the rights of the dilatory attorney. Therefore, courts have held that it is incumbent on the district court to consider whether any sanction imposed should unilaterally affect the lawyer or *331 affect both lawyer and client. See Braniff Airways, supra, at 1304; Dodson, supra, at 41. In the vast majority of cases, the appellant affected by the drastic sanction of dismissal is an innocent individual in the midst of an emotionally, physically, and financially draining bankruptcy case. Therefore, equity usually requires that the client not be punished or sanctioned if only the attorney was at fault.
In this case, however, the Appellant is the United States, on behalf of the IRS. There is nearly no measurable hardship felt by Appellant. While the dismissal of a $10,000 appeal would greatly hardship a bankruptcy debtor, Appellant in this case cannot make the same claim. Furthermore, it was the dilatory practice of the IRS, in the events that lead up to the underlying cause of action in the Bankruptcy court, that created the United States' need to appeal. Had the IRS not slept on the Mannings' Offer in Compromise, the Bankruptcy court would not have ruled that the tax liabilities were dischargeable. Therefore, the client in this case will not suffer an unreasonable or inequitable hardship if the appeal is dismissed.
3. The Efficacy of Lesser Sanctions
District courts are charged with the duty of considering the efficacy of lesser sanctions before deciding to dismiss a bankruptcy appeal. In re Serra Builders, Inc., 970 F.2d 1309 (4th Cir.1992); Jewelcor Inc. v. Asia Commercial Co., 11 F.3d 394, 397 (3d Cir.1993); In re Beverly Mfg. Corp., 778 F.2d 666, 667-68 (11th Cir.1985); In re Hill, 775 F.2d 1385 (9th Cir.1985); and see Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982). Lesser sanctions, such as imposing costs or a fine on an attorney, can be very effective in punishing a negligent attorney and deterring further dilatory practice. This court, however, cannot fine the United States for its actions and the imposition of costs would have little or no deterrent effect on the collective force of attorneys for the United States. Furthermore, the mere imposition of costs would not sufficiently punish the dilatory conduct of the IRS and the attorneys for the United States.
III. CONCLUSION
Dismissal of the appeal is an appropriate and fitting sanction for the failure to file a brief for over seven and a half months. Lesser sanctions are not available nor more appropriate. The failure to file the brief for over seven and a half months was not reasonably explained by the confusion over the Track VI assignment of the appeal. The United States never bothered to inquire into the status of the case until the order of dismissal was entered. Finally, dismissal will not unduly or inequitably burden the IRS; the IRS's dilatory practice was in part responsible for the unfavorable progression of the case.
Therefore, the Motion to Set Aside must be DENIED.
It is ORDERED, ADJUDGED, and, DECREED, therefore, that Appellant's Motion to Set Aside be DENIED.
NOTES
[1] Federal Rule of Bankruptcy Procedure 8001(a) provides, in pertinent part:
Failure of an appellant to take any step other than the timely filing of the notice of appeal does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal.
(Emphasis added).
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893 N.E.2d 778 (2008)
BERRY
v.
STATE.
No. 49A02-0801-CR-39.
Court of Appeals of Indiana.
August 27, 2008.
BAILEY, J.
Disposition of case by unpublished memorandum decision. Affirmed, Reversed and Remanded.
FRIEDLANDER, J. Concurs.
KIRSCH, J. Dissents without opinion.
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2525
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Manuel Sanchez
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: March 23, 2020
Filed: March 26, 2020
[Unpublished]
____________
Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Manuel Sanchez appeals the sentence imposed by the district court1 after a jury
convicted him of a drug offense. His counsel has moved for leave to withdraw, and
1
The Honorable John M. Gerrard, Chief Judge, United States District Court for
the District of Nebraska.
has filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the
court erred in applying a sentencing enhancement for obstruction of justice based on
his trial testimony. Sanchez has filed a motion for appointment of new counsel.
Upon careful review, we conclude that the district court properly found that the
obstruction-of-justice enhancement was applicable to Sanchez, see U.S.S.G. § 3C1.1
comment. (n.2) (defendant’s denial of guilt is ordinarily not a basis for obstruction
enhancement, other than a denial under oath that constitutes perjury); and that any
error in the court’s determination was harmless in any event, as the court stated that
it would sentence Sanchez as though he did not have the enhancement, and sentenced
him within the Guidelines range calculated without the enhancement, see United
States v. Shuler, 598 F.3d 444, 447 (8th Cir. 2010) (procedural errors in determining
advisory Guidelines range are subject to harmless error analysis); United States v.
Spikes, 543 F.3d 1021, 1025-26 (8th Cir. 2008) (where it is clear that sentencing
court would have imposed same sentence regardless of whether appellant’s argument
for lower Guidelines range ultimately prevailed, there can be no reversible error in
sentence).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and we have found no non-frivolous issues for appeal. Accordingly,
we affirm the judgment, grant counsel’s motion to withdraw, and deny Sanchez’s
motion for counsel.
______________________________
-2-
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395 F.2d 910
A. L. HOLDEN et al., doing business under the name and styleof R. L. Pritchard & Company, Appellants,v.S. S. KENDALL FISH, her engines, etc., et al., Appellees.
No. 24615.
United States Court of Appeals Fifth Circuit.
June 12, 1968.
1
Henry J. Read, New Orleans, La., Hill, Rivkins, Warburton, McGowan & Carey, New York City, Montgomery, Barnett, Brown & Read, New Orleans, La., of counsel, for appellants.
2
Benjamin W. Yancey, New Orleans, La., Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., of counsel, for appellees.
3
Before COLEMAN and GOLDBERG, Circuit Judges, and HANNAY, District judge.
4
GOLDBERG Circuit Judge.
5
This is a case of statutory construction, specifically, the interrelation of Sections 1304(5) and 1305 of the Carriage of Goods by Sea Act of 1936 (COGSA).1
6
In 1952, the cargo ship SS Kendall Fish sailed from North Africa to New Orleans laden with bales of sisal which were being imported from British East Africa under the Strategic and Critical Stock Piling Act, 50 U.S.C. 98 et seq. The sisal arrived at the port of New Orleans in poor condition necessitating a monetary adjustment between the parties. In 1962, after many continuances sought and gained by appellees, liability was found to exist and the question of damages was submitted to a Master. Holden v. S.S. Kendall Fish, E.D.La. 1962, 212 F.Supp. 106. It is the award of the Master, affirmed by the district court, which is before us for review. We affirm.
7
The Master accepted as determinative the market price of sisal at New Orleans at the time of delivery. He thus computed damages at $7,656.84. The bill of lading, however, provided that damages should be calculated on the basis of invoice value, plus freight and insurance, at the port of departure. By this method of computation damages would have been $20,027.73.2 The controlling issue is whether the carrier and the shipper were free to contract future valuations for lost or damaged goods, or whether Section 1304(5) of COGSA restricted that privilege.
8
Judge Heebe, in a superb opinion in this case below, has set forth the law with exceptional clarity. Holden v. S.S. Kendall Fish, E.D.La.1962,262 F.Supp. 862. After tracing both pre-COGSA and post-COGSA judicial history, he concludes that Section 1304(5) supersedes any potentially conflicting language in Section 1305 and that 'the amount of damage actually sustained,' as prescribed in Section 1304(5), did not here exceed the market price at the point of destination. We are in complete accord with Judge Heebe's analysis and find it necessary to add only a few general observations.
9
Courts have consistently held that COGSA seeks the economic realities of the loss rather than the contractual bargain. Daido Line v. Thomas P. Gonzalez Corp., 9 Cir. 1962, 299 F.2d 669, 676; Otis McAllister & Co. v. Skibs, 9 Cir. 1958, 260 F.2d 181, cert. den., 1959, 359 U.S. 915, 79 S.Ct. 584, 3 L.Ed.2d 576; The Steel Inventor, D.Md.1940, 35 F.Supp. 986, 996-998. See also Smith v. The Ferncliff, 1939, 306 U.S. 444, 450, 59 S.Ct. 615, 617, 83 L.Ed. 862, 866.3 If the sisal had been delivered in good condition, its worth to the buyer would have been determined by the market price at the port of destination. Such amount is exactly what the Master and district court in this case found the carrier's liability to be. To have held otherwise would have required the carrier to pay a price for damaged goods which was more than the worth of the goods in their undamaged state. The carrier is not and should not be the guarantor of the ups and downs of commodity prices.
10
The appellants also contest the assessment of the cost of the Master's fee against them. Assessment of costs in admiralty, however, is discretionary with the district court. As we pointed out in Higgins, Inc. v. Hale, 5 Cir. 1958, 251 F.2d 91, 93:
11
'On the merits, therefore, the case calls for an obvious affirmance. And so it does also to the Shipyard's hope that if not successful as it set forth on this voyage of little prospect, it might get all or a considerable part of the freight paid by assessing all of the costs against the vessel and owner. To do this, it (1) complains that, recovering as it did, something, the trial court erred in decreeing that each party should bear its own costs; and then (2) argues that since this was wrong, we shall right it and assess all the cost, here and below, against them.
12
'This would indeed be an inconsiderable wagging of a prodigious dog. Moreover, it is beseeching us as an admiralty court to ignore what is so well established, that in the matter of costs, the court has the widest latitude to insure that an injustice is not done by an inexorable rule that costs follow the decree. Many of these circumstances, present here in abundance, are discussed in Benedict on Admiralty (6th Ed.), Vol. 3, 435, 439, 440.'
13
The district court found that the appellants had refused to consider anything other than the invoice value as the basis of recovery and by so doing had forced the submission of the case to the Master for the determination of the market value. We, therefore, find that the district court exercised its abundance of discretion in consonance with the conscience of equity.
14
Affirm.
1
'CARRIAGE OF GOODS BY SEA, 46 U.S.C.A. 1304(5) and 1305
Section 1304(5). Rights and immunities of carrier and ship-- Unseaworthiness
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.
By agreement between the carrier, master or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.
Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading.'
'Section 1305. Surrender of rights; increase of liabilities; charter parties; general average
A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under this chapter, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper.
The provisions of this chapter shall not be applicable to charter parties; but if bills of lading are issued in the case of a ship under a charter party, they shall comply with the terms of this chapter. Nothing in this chapter shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average. Apr. 16, 1936, c. 229, 5, 49 Stat. 1211.'
2
In our inflationary era, prices of one day are generally less than those of the next. This case is unique in that the market price at the port of destination was substantially lower than the C.I.F. valuation in the bill of lading
3
These decisions are in line with the spirit of the Hague Rules of 1921, the Brussels Convention of 1922-24, and the various statutes known as the Carriage of Goods by Sea Acts which reflect a desire to promote international congruity in maritime commercial transactions. For authorities discussing the various purposes of COGSA see Standard Electrica, S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft and Columbus Lines, Inc., 2 Cir. 1967, 375 F.2d 943, cert. den., 389 U.S. 831, 88 S.Ct. 97, 19 L.Ed.2d 89; Morrisey v. S.S.A. & J. Faith, et al., N.D.Ohio 1965, 252 F.Supp. 54; Caterpillar Americas Company v. S.S. Sea Roads, S.D.Fla.1964, 231 F.Supp. 647; Pannell v. The S.S. American Flyer, S.D.N.Y.1957, 157 F.Supp. 422, modified, Pannell v. United States Lines Co., 2 Cir. 1959, 263 F.2d 497, cert. den., 359 U.S. 1013, 79 S.Ct. 1151, 3 L.Ed.2d 1037; Gilmore and Black, The Law of Admiralty, New York: Foundation Press (1957); and Knauth, Ocean Bills of Lading, New York: American Maritime Cases, Inc., 4th ed. (1953)
For cases analyzing the law before COGSA, see Smith v. The Ferncliff, supra (and cases cited therein); The Merauke, 2 cir. 1929, 31 F.2d 974; United States Shipping Bd. Emergency Fleet Corp. v. Florida Grain & Elevator Co., 5 Cir. 1927, 20 F.2d 583; Kilthau v. I.M.M. Co., 1927 A.M.C. 1131.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WALTER BERNARD MORTON, JR.,
Plaintiff,
v. Civil Action No. 17-1112 (RDM)
UNITED STATES PAROLE
COMMISSION, et al.,
Defendants.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, Dkt. 24, it is hereby
ORDERED that Defendant’s Motion to Dismiss or, in the alternative, to Transfer, Dkt. 14, is
GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s Motion for Summary Judgment, Dkt. 13, is DENIED; and it
is further
ORDERED that the remainder of Plaintiff’s complaint is dismissed on the Court’s own
motion for failure to state a claim; and it is further
ORDERED that the Clerk of the Court shall terminate this case.
This Order constitutes the final judgment of the Court within the meaning of Federal Rule
of Civil Procedure 58(a).
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 6, 2018
2
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172 F.3d 76
335 U.S.App.D.C. 258
Maurice McCREARY, M.D., et al., Appellants,v.Paul OFFNER, Commissioner of Health Care Finance of theDistrict of Columbia Department of Human Services,and United States of America, Appellees.
No. 98-5155.
United States Court of Appeals,District of Columbia Circuit.
Argued Dec. 8, 1998.Decided April 13, 1999.
Appeal from the United States District Court for the District of Columbia (No. 97cv01524).
James A. Barker, Jr. argued the cause for appellants. With him on the briefs was Allen V. Farber.
Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, U.S. Attorney, and Barbara C. Biddle, Attorney, U.S. Department of Justice.
John M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Lutz Alexander Prager, Assistant Deputy Corporation Counsel, were on the brief for appellee Paul Offner.
Before: WALD, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge:
1
Under Medicaid's "buy-in" program, states must use Medicaid funds to enroll certain needy, Medicare-eligible individuals in Medicare's Part B supplemental insurance program. In this case, we must determine whether the buy-in program requires states to reimburse Medicare providers the entire twenty percent copayment that patients normally pay for a particular service under Part B, or whether, as the United States Department of Health and Human Services has long permitted, states may limit reimbursement to the almost always lower Medicaid rate for the same service. Relying on HHS policy, the District of Columbia began capping copayment reimbursement at Medicaid rates in 1990. Appellants, a group of District of Columbia doctors, challenge the District's policy, arguing that until Congress amended the buy-in statutes in 1997, the law required the District to reimburse them at Medicare rates. Finding the pre-1997 statutes ambiguous as to state copayment reimbursement obligations, and finding HHS's interpretation reasonable, we affirm the district court's grant of summary judgment for the District.
2
* Enacted in 1965, Medicare finances medical procedures for people over 65 and people with disabilities. See 42 U.S.C. §§ 1395-1395ccc (1994). Medicare has two parts, Part A and Part B. Part A provides reimbursement for inpatient hospital care and related post-hospital, home health, and hospice care. See id. §§ 1395c to 1395i-4. Enrollment in Part A is automatic. Part B is voluntary. It provides supplemental insurance for hospital out-patient services, physician services, and other medical services not covered under Part A. See id. §§ 1395j to 1395w-4. Part B imposes cost-sharing obligations on people who choose to participate. These include an annual deductible, monthly premiums, and--of particular relevance to this case--copayments. Copayments consist of twenty percent of the "reasonable charge" for the service rendered, an amount determined annually by HHS. See id. § 1395l(a). Medicare directly reimburses Part B providers for the remaining eighty percent. See id.
3
Also enacted in 1965, Medicaid, a cooperative federal-state program, finances medical care for the poor, regardless of age. See 42 U.S.C. §§ 1396-1396v (1994). Participating states must establish financial eligibility criteria, identify covered medical services, develop rate schedules, and submit their plans to HHS for approval. See id. §§ 1396a(a), 1396a(b). HHS approval entitles a state to substantial federal funding, ranging from fifty percent to eighty-three percent of the cost of medical services provided under the plan. See id. § 1396d(b). Doctors and other health care providers are not required to service Medicaid patients, but if they do they must accept reimbursement from the state at its Medicaid rate as payment in full; they may not demand additional payment from patients. See id. §§ 1320a-7b(d), 1396o. State Medicaid rates for any given service are almost always lower than the "reasonable charge" for the same service under Medicare Part B. Indeed, Medicaid rates are often even lower than the eighty percent of the reasonable charge that the federal government reimburses Medicare providers.
4
Medicare and Medicaid intersect with respect to the elderly poor--so-called "dual eligibles." While these people are eligible to purchase supplemental medical insurance through Medicare Part B, many cannot afford Part B's premiums, deductibles, and copayments. Medicaid has therefore long allowed states to use Medicaid dollars to enroll dual eligibles in Medicare Part B by paying their cost-sharing obligations. See Pub.L. No. 89-97, § 121(a), 79 Stat. 286, 346 (1965) (codified at 42 U.S.C. § 1396a(a)(15)) (repealed 1988). Because the federal government heavily subsidizes Medicaid, this "buy-in" program enables states to shift a large portion of the cost of caring for the elderly poor to the federal treasury.
5
In 1986, Congress expanded the buy-in program beyond dual eligibles to include a newly created category of "qualified medicare beneficiaries" ("QMBs"): elderly people not quite poor enough to qualify for Medicaid but who nonetheless met certain neediness criteria. See Pub.L. No. 99-509, § 9403, 100 Stat. 1874, 2053-55 (1986) (codified at 42 U.S.C. §§ 1396a(a)(10)(E), 1396d(p)(1) (1994)). Initially optional, the QMB buy-in program became mandatory in 1988. See Pub.L. No. 100-360, § 301, 102 Stat. 683, 748 (1988) (deleting "at the option of a State" from 42 U.S.C. § 1396a(a)(10)(E)). Also in 1988, Congress redefined the term "QMB" to include dual eligibles. See Pub.L. No. 100-485, § 608(d), 102 Stat. 2343, 2416 (1988).
6
This appeal presents the following issue: Are Medicare providers performing Part B services to QMBs entitled to state reimbursement for the entire twenty percent copayment that a non-QMB Medicare patient would normally pay, or may states limit reimbursement such that providers receive no more than the state's Medicaid rate for the same service? For example, suppose that the reasonable charge for a given Part B service is $100, but a state's Medicaid rate for the same service is only $90. If a Medicare doctor performs that service, the federal government reimburses the doctor $80, whether or not the patient is a QMB. If the patient is a QMB, does the buy-in scheme require the state to reimburse the doctor for the patient's entire $20 Medicare Part B copayment? Or may the state give the doctor only $10 so that total reimbursement, including the federal government's $80, equals $90, the Medicaid rate? If the Medicaid rate for the particular service is $70, may the state refuse to reimburse the doctor at all because the $80 provided by the federal government already exceeds the Medicaid rate? See Paramount Health Sys., Inc. v. Wright, 138 F.3d 706, 708 (7th Cir.1998) (using this example).
7
Four statutory provisions added to the buy-in scheme in 1986 frame this issue. Read alone, two suggest that states must use Medicaid funds to reimburse Medicare providers performing Part B services to QMBs for the full twenty percent copayment ($20 in the above example) for which nonQMB Medicare patients would be responsible. Under 42 U.S.C. § 1396a(a)(10)(E)(i), a state Medicaid plan "must" provide for "making medical assistance available for medicare cost-sharing ... for qualified medicare beneficiaries." Section 1396d(p)(3)(D) in turn defines "medicare cost-sharing" to include Medicare premiums, deductibles, and "[t]he difference between the [80 percent of the reasonable charge that the federal government reimburses providers under Part B] and the amount that would be paid ... if any reference to '80 percent' ... were deemed a reference to '100 percent.' " Section 1396a(a)(10)(E)(i)'s mandatory language coupled with section 1396d(p)(3)(D)'s reference to specific percentages suggests that states must use buy-in funds to reimburse providers for the entire twenty percent Part B copayment.
8
The other two provisions enacted in 1986 suggest a different interpretation. Section 1396a(a)(VIII) provides that "medical assistance made available to [QMBs] ... shall be limited to medical assistance for medicare cost-sharing ..., subject to the provisions of [section 1396a(n) ]." Before its amendment in 1997, section 1396a(n), entitled "Payment amounts," in turn provided:
9
In the case of [Medicaid funds provided] for medicare cost-sharing respecting the furnishing of a service or item to a qualified medicare beneficiary, the State plan may provide payment in an amount ... that results in a sum of such payment amount and any amount of payment made [by the federal government under Medicare Part B for] the service or item exceeding the amount that is otherwise payable under the State [Medicaid] plan for the item or service for eligible individuals who are not qualified medicare beneficiaries.
10
Id. § 1396a(n) (amended 1997) (emphasis added). Section 1396a(n)'s use of the word "may" rather than "shall" suggests that states are permitted, not obligated, to reimburse Part B providers above the Medicaid rate--$10 if as in the above example the Medicaid rate were $90, or zero if the Medicaid rate were $80 or less.
11
Even before the 1986 enactment of these four QMB provisions, HHS had long taken the position that the buy-in scheme required states to reimburse providers for Part B copayments only in an amount equal to the difference, if any, between the Medicaid payment and the eighty percent of the Medicare Part B charge that the federal government pays. See Policy Information Memorandum from Director, Bureau of Program Policy, Department of Health and Human Services, to Associate Regional Administrators (Sept. 29, 1981) ("California's payment of amounts only up to its standard maximum allowable rate under its [Medicaid] program is acceptable."); Policy Information Memorandum No. 6 from Associate Commissioner for Program Coordination, Department of Health, Education and Welfare, to Health Services Administration Regional Staff (Mar. 4, 1971) ("[T]he [state] agency is not necessarily obligated to pay the full amount of the deductibles and co-insurance costs according to the rates established under [Medicare], but only that amount which will satisfy the requirement for payment in full according to the [Medicaid] method of payment."). HHS reiterated this policy following the 1986 amendments to the buy-in scheme. See DEP'T OF HEALTH & HUMAN SVCS., STATE MEDICAID MANUAL § 3490.14 (1991).
12
In 1990, the District of Columbia (a state for Medicaid purposes) amended its Medicaid program to limit reimbursement for QMB Part B copayments to the Medicaid rate. See 37 D.C.Reg. 5593 (1990). HHS approved the District's plan in 1991. The District implemented its plan for more than six years without challenge.
13
In 1997, a coalition of D.C. doctors and the Medical Society of the District of Columbia sued the city in the Superior Court for the District of Columbia, claiming that the buy-in statutes required states to pay QMB Part B copayments in full. Alleging breach of contract, unjust enrichment, and promissory estoppel, the doctors sought retroactive reimbursement. The doctors also sued the District for injunctive relief in the United States District Court for the District of Columbia. The city removed the first suit to federal court, where the two cases were consolidated.
14
One month later, Congress enacted the Balanced Budget Act of 1997, Pub.L. No. 105-33, 111 Stat. 251 ("Budget Act"). Section 4714(a) of the Budget Act, entitled "Clarification Regarding State Liability for Medicare Cost-Sharing," expressly authorized states to limit Medicare cost-sharing payments for QMBs based on Medicaid rates. See id. § 4714(a), 111 Stat. at 509-10. Section 4714(c) applied this putative "clarification" retroactively to any pending lawsuit seeking reimbursement from states under the buy-in program. See id. § 4714(c), 111 Stat. at 510. Recognizing the prospective validity of section 4714(a), the doctors abandoned their request for injunctive relief. Instead, they amended their complaint to challenge the constitutionality of section 4714(c)'s retroactivity provision, claiming that it violates the Takings and Due Process Clauses of the Fifth Amendment as well as principles of separation of powers. The United States intervened to defend the constitutionality of the retroactivity provision.
15
The district court upheld section 4714(c), concluding:
16
[O]ne thing is clear: the law regarding state liability to pay for the health services provided to QMBs has never been crystal clear. Section 4714 has certainly provided clarification where it was needed. For this reason, the Court concludes that applying section 4714 retroactively, as Congress directed, is not impermissible under the Constitution.
17
McCreary v. Offner, 1 F.Supp.2d 32, 37 (D.D.C.1998). Because section 4714's clarification of the buy-in scheme undermined the theory of the doctors' breach of contract action--that pre-1997 law required reimbursement at Medicare rates--the district court granted summary judgment for the District. See id. The doctors appeal. Our review is de novo. See Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 491-92 (D.C.Cir.1998).
II
18
According to the doctors, pre-1997 law clearly required states to reimburse them for all Part B cost-sharing obligations incurred by QMBs. The Budget Act, they argue, could not constitutionally change that requirement retroactively. The United States (supported by the District) responds that: (1) pre-1997 law was ambiguous regarding state cost-sharing obligations, and under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must defer to HHS's reasonable interpretation of that scheme; (2) even if Chevron deference to HHS's interpretation of the pre-1997 scheme is inappropriate, under Loving v. United States, 517 U.S. 748, 770, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) ("subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction") (internal quotation omitted), we should give deference to Congress's 1997 interpretation of the prior scheme, as did the district court; and (3) if the Budget Act did change the buy-in scheme retroactively, then the doctors' constitutional arguments fail on the merits. Mindful of our obligation to avoid constitutional questions when possible, see Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), we begin by addressing the government's Chevron argument. After all, if Chevron deference to HHS's interpretation of pre-1997 law is appropriate, we must sustain the District's reimbursement cap without regard to the Budget Act.
19
The doctors insist--as they must to avoid Chevron deference--that before 1997 sections 1396a(a)(10)(E) and 1396d(p)(3)(D) unambiguously required states to reimburse providers in full for copayments for Part B services performed on QMBs. They argue that the permissive "may" language in section 1396a(n) comports with this reading, interpreting that section simply to authorize states to deviate from their otherwise rigid Medicaid payment schedules. According to the doctors, section 1396a(n) did nothing more than provide an exception to the general rule that states must never reimburse Medicaid providers in excess of HHS-approved schedules. Section 1396a(n) used the permissive "may" instead of the mandatory "shall," the doctors contend, because state Medicaid rates occasionally exceed the Medicare rates for the same service.
20
The doctors' interpretation of the buy-in statutes is certainly plausible. But as we read the pre-1997 statutes and their legislative history, we think Congress has not so "unambiguously expressed" its intent as to make the doctors' interpretation mandatory. Chevron, 467 U.S. at 843, 104 S.Ct. 2778; see also Air Transp. Ass'n of America v. FAA, 1999 WL 110689, at * 3 (D.C.Cir. Mar.5 1999) ("Although the inference petitioner would draw as to the statute's meaning is not by any means unreasonable, it is also not inevitable.").
21
To begin with, if the buy-in statutes really spoke as clearly as the doctors contend, section 1396a(n) would have had no need to provide separately that states could deviate from their otherwise mandatory Medicaid schedules. Addressing the same issue, the Seventh Circuit put it this way: "[I]f ... [sections 1396a(a)(10)(E) and 1396d(p)(3)(D) of] the statute clearly entitle[ ] [providers] to reimbursement at Medicare rates (if it is not clear, Chevron is back in play), the state could hardly be penalized for such reimbursement. That would be penalizing it for complying with the statute." Paramount, 138 F.3d at 709; see also Rehabilitation Ass'n v. Kozlowski, 42 F.3d 1444, 1469 (4th Cir.1994) (Niemeyer, J., dissenting) ("It is utterly implausible, I submit, to believe that Congress would create a new section in the [Medicaid] Act solely to acknowledge that it is permissible for states to do what Congress requires them to do in other sections."). The United States makes this argument, but the doctors nowhere respond.
22
The government also points out that the very provision from which the doctors derive a state obligation to pay cost-sharing in full--section 1396a(a)(10)(E)(i)--requires that state plans make cost-sharing available for QMBs. Because states must detail their QMB cost-sharing policies in their Medicaid regulations before submitting those regulations to HHS for approval, the argument goes, states' cost-sharing obligations could never cause them to run afoul of their own regulations. This argument makes sense. Again, the doctors nowhere respond.
23
The doctors' interpretation of section 1396a(n) suffers from another problem. During the almost twenty years prior to its enactment, states often reimbursed providers for Medicare cost-sharing in excess of Medicaid rates. Why then did Congress need to enact section 1396a(n) to authorize such reimbursement? See Paramount, 138 F.3d at 709 (making this point). The doctors point out that during the twenty years prior to the enactment of section 1396a(n) states had not used Medicaid funds to pay cost-sharing for "pure QMBs" (QMBs not otherwise eligible for Medicaid) because the QMB program did not even exist during that period. True as that may be, the doctors cannot dispute that by 1986 states had often exceeded their own Medicaid rates with respect to dual eligibles.
24
The doctors claim to find support for their position in the House Report accompanying the 1986 enactment of the QMB program, which stated that "the Medicaid program would pay the Part B deductible and the beneficiary's 20 percent coinsurance." C.J.. NO. 99-727, at 106 (1986), reprinted in 1986 U.S.C.. 3607, 3696. But because this language did not speak to whether states must make the entire copayment even in excess of Medicaid rates, it helps the doctors little. Moreover, subsequent legislative history squarely conflicts with the doctors' interpretation of the buy-in program. The House Report accompanying the 1988 amendments said:
25
It is the understanding of the Committee that, with respect to dual Medicaid-Medicare eligibles, some States pay the coinsurance even if the amount that Medicare pays for the service is higher than the State Medicaid payment rate, while others do not. Under the Committee bill, States would not be required to pay the Medicare coinsurance in the case of a bill where the amount reimbursed by Medicare--i.e., 80 percent of the reasonable charge--exceeds the amount Medicaid would pay for the same item or service.
26
H.R.REP. NO. 100-105(II), at 61 (1987), reprinted in 1988 U.S.C.C.A.N. 857, 884; see also H.R.REP. NO. 101-247, at 364 (1989), reprinted in 1989 U.S.C.C.A.N.1906, 2090 ("The Medicaid programs typically pay the Medicare coinsurance only to the extent that their payment, plus the Medicare payment, does not exceed what the Medicaid program would pay for the service in question.... The Committee bill ... does not change the current policy regarding the amount which a Medicaid program must reimburse on such claims."). Although post-enactment legislative history may or may not be a valid tool for ascertaining congressional intent, see United States v. Carlton, 512 U.S. 26, 39, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (Sala, J., concurring) (referring to "post-legislation legislative history" as an "oxymoron"), our task here is not to divine conclusively the meaning of section 1396a(n), but rather to determine whether it is reasonably susceptible to more than one meaning. With respect to this question, post-enactment legislative commentary offering a plausible interpretation is certainly relevant, much like plausible interpretations from litigants, other courts, law review articles, or any other source would be. The fact that the 1988 and 1989 House Reports interpreted section 1396a(n) differently from the interpretation favored by the doctors suggests that the statute is far from unambiguous.
27
We have a similar reaction to four pre-Budget Act circuit court decisions that found the buy-in scheme unambiguous. See Haynes Ambulance Serv., Inc. v. Alabama, 36 F.3d 1074, 1077 (11th Cir.1994) (per curiam); Pennsylvania Med. Soc'y v. Snider, 29 F.3d 886, 891-902 (3d Cir.1994); Rehabilitation Ass'n, 42 F.3d at 1451-58; New York City Health & Hospitals Corp. v. Perales, 954 F.2d 854, 858-59 (2d Cir.1992). Although all four circuits found the statutes sufficiently clear to preclude Chevron deference, they were not unanimous about the meaning of the supposedly unambiguous scheme. The Second, Third, and Eleventh Circuits essentially adopted the interpretation the doctors urge in this case. The Fourth Circuit expressly rejected this reading, as well as the position HHS took there (and takes here). Instead, it held that section 1396a(n) allowed states to pay more cost-sharing for pure QMBs than for dual eligibles. See Rehabilitation Ass'n, 42 F.3d at 1454-55. The plausibility of these competing interpretations simply confirms our view that the buy-in scheme is ambiguous. See Smiley v. Citibank, 517 U.S. 735, 739, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) ("In light of the two dissents from the opinion of the Supreme Court of California, and in light of the opinion of the Supreme Court of New Jersey creating the conflict that has prompted us to take this case, it would be difficult indeed to contend that the [statute] is unambiguous with regard to the point at issue here.") (citation and footnote omitted).
III
28
Proceeding to the second step of the Chevron inquiry, we ask whether HHS has reasonably interpreted the buy-in statutes. The United States's position is simple: Because the word "may" in section 1396a(n) is permissive, not mandatory, states are allowed to but need not exceed their Medicaid rates. To us, this seems eminently reasonable--"may" means may.
29
The doctors make only one argument challenging the reasonableness of HHS's interpretation. Relying on INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), which stated that "[a]n agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view," the doctors claim that HHS has not consistently interpreted the buy-in statutes. In support, they cite the following commentary from a 1983 HHS rulemaking:
30
Since 1971, HHS policy has been to require State agencies that have a "buy-in" agreement to pay, in addition to the Part B premium, the Part B coinsurance and deductible amount for services provided to beneficiaries under Part B, even if the services are not routinely provided under the Medicaid State Plan.
31
48 Fed.Reg. 10,378, 10,379 (1983) (notice of proposed rulemaking). That rulemaking has no relevance to the question presented here, however, because there HHS merely concluded that the buy-in program does not require states to pay Part B cost-sharing for services not covered by their Medicaid plans; the rulemaking did not address whether a state must pay QMBs' full copayments for services that are covered under its Medicaid plan. The most relevant commentary in the rulemaking, moreover, actually comports with the position HHS takes in this case: "[I]f a State limits the amount, duration or scope of Medicaid services covered in the State plan, then the State may similarly limit payment of Medicare Part B cost sharing amounts on those same services in accordance with its Medicaid service limitations." 52 Fed.Reg. 47,926, 47,928 (1987) (final rule). Not only does this rulemaking suggest no agency inconsistency, but the doctors have failed to cite any other instances of alleged agency inconsistency in the twenty-eight years since HHS first articulated its copayment reimbursement policy. Indeed, HHS appears to have approved the Medicaid plans of every state that has chosen to limit total copayment reimbursement to Medicaid rates.
32
Because we conclude that HHS's interpretation of the buy-in statutes is reasonable, we have no need to reach the doctors' constitutional challenge to the Budget Act. The district court's grant of summary judgment for the District is affirmed.
33
So ordered.
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21 F.3d 425NOTICE: 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.
UNITED STATES of America, Plaintiff-Appellee,v.Marion Denise DAVIS, Defendant-Appellant.
No. 93-5305.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 13, 1994.Decided April 15, 1994.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Richard C. Erwin, Senior District Judge. (CR-92-282-G)
Susan Hayes, Pfaff, Elmore & Hayes, Greensboro, NC, for appellant.
Benjamin H. White, Jr., U.S. Atty., Harry L. Hobgood, Asst. U.S. Atty., Greensboro, NC, for appellee.
M.D.N.C.
AFFIRMED.
Before HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Marion Denise Davis pled guilty to possessing with the intent to distribute approximately 389.5 grams of a cocaine base in violation of 21 U.S.C. Sec. 841 (1988). On appeal, Davis's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), noting four issues but stating that, in her view, there are no meritorious issues for appeal. Davis has been notified of her right to file a supplemental brief but has not filed any brief. After a thorough review of the parties' briefs and the record, we affirm.
I.
2
At Davis's plea hearing, the district court inquired into whether she had read the plea agreement. After Davis stated that she had read the plea agreement and that she understood it, the court proceeded with the Rule 11 colloquy. The court informed her of the nature of the charges to which the plea was offered, the statutory maximum and minimum penalties, that the court was required to consider applicable sentencing guidelines, that she had a right to plead not guilty, that she had the right to a jury trial, and that pleading guilty would waive the right to a trial. Accordingly, the district court held that the plea was informed, voluntary, and with effective assistance of counsel. However, the court failed to inform Davis that any testimony by her regarding the offense could be used later in perjury or false statement prosecution, that it had some authority to depart from the sentencing guidelines, and about the effect of supervised release. After Davis agreed with the government's evidence in the case, the court found that there was a factual basis for the plea and found her guilty.
3
Based on a total offense level of thirty-one and a criminal history category of I, the court sentenced Davis to 120 months of incarceration1 and five years of supervised release, and ordered her to pay a special assessment of $50.
4
Davis's attorney has filed an Anders2 brief in which she notes (1) that the district court erred by failing to inform Davis that any testimony by her regarding the offense could be used later in perjury or false statement prosecution, (2) that the district court did not inform Davis of the effect of supervised release, (3) that the district court did not inform Davis that it could depart from the sentencing guidelines, and (4) that the district court did not require formal disclosure of the plea agreement on the record.
II.
5
Although the district court erred by not following the procedures required by Fed.R.Crim.P. 11, this Court "accord[s] deference to the trial court's decision as to how to conduct the mandated colloquy with the defendant." United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.1991), cert. denied, 60 U.S.L.W. 3717 (U.S.1992). In addition, on the facts in this case, we find that any error, if error, was harmless. Id. at 117.
6
We note that there is no evidence demonstrating that the district court's failure to inform Davis that any testimony by her regarding the offense could be used in a later proceeding and that the district court's failure to inform Davis about its authority to depart affected any of Davis's substantial rights. See DeFusco, 949 F.2d at 117. We also note that the district court informed Davis that the statutory maximum penalty for the crime was life imprisonment. Davis was sentenced to 120 months of incarceration and five years of supervised release. Accordingly, the district court's failure to inform Davis of the effect of supervised release was harmless error. See United States v. Iaquinta, 719 F.2d 83, 85 n. 4 (4th Cir.1983).
7
In addition, the significant provisions of the plea agreement were made a part of the record during the hearing. Accordingly, Davis's substantial rights were not affected.
8
In accordance with the requirements of Anders, we have independently examined the entire record in this case and find no meritorious issues for appeal. We, therefore, affirm the district court. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, see 18 U.S.C.A. Sec. 3006A (West Supp.1993), this Court requires that counsel inform her client, in writing, of her right to petition the Supreme Court for further review. If requested by her client to do so, counsel should prepare a timely petition for a writ of certiorari.
9
We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.
AFFIRMED
1
Because of the statutory minimum, the corresponding guideline imprisonment range was 120-135 months. United States Sentencing Commission, Guidelines Manual, Sec. 5G1.1(c)(2) (Nov.1992)
2
Anders v. California, 386 U.S. 738 (1967)
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911 N.E.2d 14 (2005)
361 Ill. App.3d 1106
PEDIGO
v.
MARTIN.
No. 4-05-0062.
Appellate Court of Illinois, Fourth District.
December 9, 2005.
Affirmed.
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Case: 14-7073 Document: 17 Page: 1 Filed: 07/01/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCUS SEBASTIAN PAYNE,
Claimant-Appellant,
v.
SLOAN D. GIBSON, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2014-7073
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3384, Judge William A. Moor-
man.
______________________
ON MOTION
______________________
PER CURIAM.
ORDER
Marcus Sebastian Payne moves for the court to take
judicial notice of certain documents that he states were
not before the Court of Appeals for Veterans Claims
(“Veterans Court”). He separately moves to supplement
the appendix and for leave to file a supplemental brief.
Case: 14-7073 Document: 17 Page: 2 Filed: 07/01/2014
2 PAYNE v. GIBSON
The record on appeal should only include the papers
and exhibits filed in the Veterans Court. See Fed. R. App.
P. 10(a). Although the Federal Rules of Evidence author-
ize judicial notice of certain documents outside of the
record, the court is not persuaded that such action is
warranted here. See Fed. R. Evid. 201. Additionally, the
rules do not contemplate filing a supplemental brief. See
Fed. R. App. P. 28.
Accordingly,
IT IS ORDERED THAT:
The motions are denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 3, 2009
No. 08-60282
Summary Calendar Charles R. Fulbruge III
Clerk
SAQIB ABDUL RASHEED, also know as Saqub Abdul Rasheed,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A43 961 471
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Saqib Abdul Rasheed petitions this court to review the decision of the
Board of Immigration Appeals (BIA) dismissing his appeal and affirming the
immigration judge’s (IJ) order that Rasheed was ineligible for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a)(3) because he had committed an
aggravated felony. Rasheed, who has been convicted in state court of possession
of controlled substances on more than one occasion since his admission to the
*
Pursuant to 5 TH C IR. 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 5 TH C IR. R. 47.5.4.
No. 08-60282
United States, contends that his second state misdemeanor conviction should not
be treated as an aggravated felony under federal law because the decision
allowing such treatment is no longer valid law. He also argues that his second
conviction was not punishable under the federal recidivist drug-possession
statute because he was not given proper notice of any intent to use the previous
conviction to increase his sentence.
The BIA correctly determined that Rasheed had committed an aggravated
felony for immigration law purposes. See Carachuri-Rosendo v. Holder, 570 F.3d
263, 266-68 (5th Cir. 2009), petition for cert. filed (July 15, 2009) (No. 09-60).
The federal notice requirement of 21 U.S.C. § 851 did not apply. See United
States v. Cepeda-Rios, 530 F.3d 333, 336 n.11 (5th Cir. 2008).
Rasheed’s petition for review is DENIED.
2
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510 So.2d 1125 (1987)
Manfred SCHATZ, Appellant,
v.
John WENAAS, Appellee.
No. 87-181.
District Court of Appeal of Florida, Second District.
August 5, 1987.
*1126 Anthony J. Gargano of Leasure & Gargano, P.A., Fort Myers, for appellant.
No appearance for appellee.
PER CURIAM.
Appellant, Manfred Schatz, appeals an order awarding attorney's fees and related expenses to appellee, John Wenaas pursuant to section 57.105, Florida Statutes (1986). We reverse.
This appeal arose out of an action brought by Jane Morgan to determine the paternity of her minor child. Morgan alleged that Schatz was the father of the child and attached the results of a human leukocyte antigen (HLA) and red blood cell antigen test to her pleadings. The test results indicated a 93.2% probability that Schatz was the father of the child. Schatz denied that he was the father and affirmatively alleged that during the material time period, Morgan had intercourse with other men. Schatz then filed a third party complaint against Wenaas. The complaint, seeking declaratory relief, alleged that Wenaas was the father of the child. The record also contains an affidavit executed by Schatz in which he states that he believed Wenaas was the father and that he had personal knowledge that Morgan and Wenaas were "in bed together" during the period of time that the child was conceived. After subsequent paternity tests indicated that Wenaas was not the child's father and that a 99.8% probability existed that Schatz was the father, Schatz voluntarily dismissed his third party complaint against Wenaas with prejudice. Wenaas's subsequent motion for attorney's fees pursuant to section 57.105 was granted, and Schatz filed a timely notice of appeal from the court's order awarding those fees and other expenses.
Schatz contends that justiciable issues existed at the time he filed his action against Wenaas and that, therefore, the court erred in awarding attorney's fees to Wenaas. We agree.
At the time the third party complaint was filed, Schatz had personal knowledge that Morgan had "been in bed" with Wenaas during the period of time that the child had been conceived, and he believed Wenaas was the father. Furthermore, before a human leukocyte antigen or other scientific test raises a rebuttable presumption of paternity, the statistical probability of paternity must equal or exceed ninety-five per cent. If it is less than ninety-five per cent, as in this case, no presumption arises, and although the results are admissible, they should only be weighed along with other evidence. § 742.12, Fla. Stat. (1986). Here, the results of the first test performed indicated only that there was a 93.2% probability that Schatz was the child's father. At the time the action was commenced, therefore, it was not so clearly devoid of merit both on the facts and the law as to make it completely untenable, and the court erred in awarding attorney's fees. Ferm v. Saba, 444 So.2d 976 (Fla. 2d DCA 1983).
Upon receiving the second test results indicating that Wenaas was not the father, Schatz dismissed the action with prejudice. Events occurring during the course of litigation which reveal that the action is no longer sustainable do not necessarily convert a case into one in which fees should be awarded under section 57.105, and did not do so in this case. See Greater Clearwater Chamber of Commerce, Inc. v. Modern Graphic Arts, Inc., 464 So.2d 594 (Fla. 2d DCA 1985).
*1127 We, accordingly, reverse the trial court's order awarding attorney's fees and related expenses. In light of the foregoing, we need not address the other points raised by Schatz.
Reversed.
CAMPBELL, Acting C.J., and SCHOONOVER and HALL, JJ., concur.
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444 So.2d 658 (1983)
Hercilda GALEANO
v.
Hector J. GALEANO.
No. 83 CA 0562.
Court of Appeal of Louisiana, First Circuit.
December 22, 1983.
Writ Denied February 27, 1984.
*659 Richard J. Brazan, Baton Rouge, for plaintiff-appellee Hercilda Galeano.
James D. Thomas, II, Baton Rouge, for defendant-appellant Hector J. Galeano.
Before LOTTINGER, EDWARDS and ALFORD, JJ.
ALFORD, Judge.
This is an appeal from a judgment of the Family Court, Parish of East Baton Rouge, decreeing a separation from bed and board and granting sole custody of the minor child, Mildred Galeano, to the mother, Hercilda Galeano. Appellant, Hector Galeano, appeals from the custody award alleging the trial judge erred in not granting joint custody.
The trial judge concluded that serious allegations of improper sexual conduct on the part of Mr. Galeano, directed towards an older child of the marriage, sufficiently rebutted the presumption that joint custody was in the best interest of Mildred. The allegations made by this older child and corraborated by Mrs. Galeano involve conduct allegedly beginning when Mildred's sister was approximately Mildred's age. Although appellant presented testimony in an attempt to rebut these allegations, the trial judge obviously believed that serious improprieties had taken place.
LSA C.C. art. 146 was substantially amended by Acts 1982, No. 307, § 1, which became effective January 1, 1983. The amendment to this article reflects that when both parents are seeking provisional custody of a child of the marriage, the preferential alternative is joint custody if it is in the best interest of the child. Additionally, the amendment establishes that the burden of proof in showing that joint custody is not in the best interest of the child is on the parent seeking sole custody. The article now goes so far as to provide that there is a rebuttable presumption that joint custody is in the child's best interest. This presumption can be rebutted, however, by a finding of the court that joint custody is not in the best interest of the child.
It is apparent to this court that the legislature has not sought to change the best interest of the child standard by which custody proceedings have long been judged. Additionally, the trial judge's discretion in custody matters are entitled to great weight and should not be disturbed on appeal unless a clear abuse is shown. Schmidt v. Schmidt, 393 So.2d 381 (La. App. 1st Cir.1980). We find no such abuse.
Appellant maintains that the trial judge erred in giving great weight to the testimony of Mildred's sister. It is appellant's contention that the testimony presented on his behalf clearly rebutted the girl's testimony. The trial judge, who was in the best position to judge credibility, specifically noted in his reasons for judgment that he found it very difficult to believe that this young woman was so cunning as to fabricate such a story over a span of some eight years. We agree.
Therefore, for the foregoing reasons, the judgment of the trial court is affirmed and appellant is cast with costs of this appeal.
AFFIRMED.
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12-3162-cr
United States v. Kontogiannis (Michael)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
5th day of June, two thousand thirteen.
Present:
RALPH K. WINTER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
____________________________________________________
United States of America,
Appellee,
v. No. 12-3162-cr
Thomas Kontogiannis, et al.,
Defendants,
John T. Michael,
Defendant-Appellant.
____________________________________________________
FOR APPELLANT: Raymond R. Granger and Howard B. Zakai, Granger & Associates
LLC, New York, NY.
1
FOR APPELLEE: Susan Corkery, Shannon C. Jones, Rena Paul, Assistant United
States Attorneys, for Loretta E. Lynch, United States Attorney for
the Eastern District of New York, Brooklyn, NY.
____________________________________________________
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant John T. Michael appeals from the district court’s judgment
convicting him of conspiring to commit bank and wire fraud and sentencing him, in relevant
part, to a prison term of 12 months and 1 day. On appeal, Michael argues that the district court
erroneously considered, as factors weighing in favor of a longer sentence, his prior convictions
from the Southern District of California or the conduct underlying those convictions. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the specific issues raised on appeal.
We generally review a district court’s sentencing decisions for both substantive and
procedural reasonableness.1 United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007).
“Reasonableness review is similar to review for abuse of discretion and may require reversal
when the district court’s decision cannot be located within the range of permissible decisions or
is based on a legal error or clearly erroneous factual finding.” Id. (internal quotation marks
omitted). “Substantive reasonableness involves the length of the sentence imposed in light of the
factors enumerated under 18 U.S.C. § 3553(a),” while “[p]rocedural reasonableness concerns the
procedures a district court employs in arriving at a sentence.” Id.
1
The parties dispute whether Michael’s arguments should be reviewed for plain error under Fed.
R. Crim. P. 52(b). Because we find that Michael’s arguments are meritless under the more
lenient reasonableness standard of review, we decline to resolve this issue.
2
Here, the district court was explicitly permitted to consider Michael’s prior convictions in
the Southern District of California and the conduct underlying those convictions pursuant to 18
U.S.C. § 3553(a)(1), which required the court to fashion its sentence based on “the nature and
circumstances of the offense and the history and characteristics of the defendant.” Contrary to
Michael’s assertion, he was not thereby punished twice for the same conduct. See, e.g., Witte v.
United States, 515 U.S. 389, 397 (1995) (rejecting the notion that “consideration of uncharged
conduct in arriving at a sentence within the statutorily authorized punishment range constitutes
‘punishment’ for that conduct”); Williams v. New York, 337 U.S. 241, 247 (1949) (“Highly
relevant—if not essential—to [the sentencing court’s] selection of an appropriate sentence is the
possession of the fullest information possible concerning the defendant’s life and
characteristics.”). A different conclusion is not warranted by the district court’s finding that the
conduct underlying Michael’s Southern District of California convictions was part of the instant
offense and thus played a role in calculating his total offense level under the Sentencing
Guidelines. Cf. United States v. Maloney, 406 F.3d 149, 152 (2d Cir. 2005) (“We have
repeatedly held . . . that a district court calculating a Guidelines sentence may apply multiple
Guidelines provisions based on the same underlying conduct where that is the result clearly
intended by Congress and the Sentencing Commission.”).
Moreover, contrary to Michael’s assertion, the district court’s consideration of his
Southern District of California convictions did not constitute “impermissible double counting.”
“Impermissible ‘double counting’ is the judicial augmentation of a defendant’s sentence in
contravention of [an] applicable statute or Sentencing Guideline.” United States v. Torres-
Echavarria, 129 F.3d 692, 699 (2d Cir. 1997) (emphasis omitted). Not surprisingly, Michael
3
fails to identify a particular statute or Guideline that the district court violated by treating the
convictions at issue as factors weighing in favor of a longer sentence.
Finally, the district court did not create an unwarranted sentence disparity between
Michael and codefendant Thomas Kontogiannis by finding that Michael’s Southern District of
California convictions weighed in favor of a longer sentence without making a corresponding
finding in sentencing Kontogiannis. While a district court may consider “similarities and
differences among co-defendants” as a factor in imposing a sentence, it is not required to, and it
need not engage in perfectly parallel analyses of personal and historical traits when sentencing
co-defendants. United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other
grounds by United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2009) (en banc).
Nor does the substantive difference between Michael’s and Kontogiannis’s sentences
establish an unwarranted disparity. “[E]ven assuming arguendo that 18 U.S.C. § 3553(a)(6) can
support a reduced sentence designed to eliminate or diminish disparity between the sentences
imposed on co-defendants, those co-defendants would have to be similarly situated because the
provision mandates that sentencing judges take into account ‘unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.’” United
States v. Fernandez, 443 F.3d 19, 31-32 (2d Cir. 2006) (footnote omitted) (emphasis in
Fernandez) (quoting 18 U.S.C. § 3553(a)(6)). As Michael himself recognizes, he and
Kontogiannis were neither similarly situated nor treated as such by the district court. Thus, there
is no basis for concluding that the disparity between the sentences of Michael and Kontogiannis
was unwarranted. To the extent that Michael intends to argue that the disparity between the two
sentences at issue should have been even greater, he has not cited any relevant legal authority for
such an argument.
4
We have considered Michael’s remaining arguments on appeal and find them to be
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
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111 F.3d 127
Richard J. Tonerv.Ernest D. Preate, Jr., Attorney General, Nancy M.Sobolevitch, Court Administrator, H. Terry Grimes, PresidentJudge, J. Quint Salmon, Senior Judge, Joseph D. Lehman,Commissioner, Rufus Sylvester Lynch, Director of CourtManagment, Vincent J. Cirilli, Special Court Administrator,Audrey Szoyka, District Court Administrator, Rich Rosendale,Prothonotary, Laurence L. Reid, Executive DeputyCommissioner, Thomas A. Fulcomer, Deputy Commissioner,
NO. 96-3158
United States Court of Appeals,Third Circuit.
Mar 21, 1997
Appeal From: W.D.Pa. ,No.95cv00865 ,
Standish, J.
1
Affirmed.
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278 F.Supp. 405 (1967)
Oliver A. SMITH, III, Trustee in Bankruptcy for Glen Paul Wood
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
Civ. A. No. 6018.
United States District Court E. D. Tennessee, N. D.
Memorandum December 19, 1967.
Supplemental Memorandum January 4, 1968.
*406 G. W. Morton, Jr., Morton, Morton & Lewis, Knoxville, Tenn., for plaintiff.
Erby L. Jenkins, Aubrey C. Jenkins, Knoxville, Tenn., for defendant.
MEMORANDUM
ROBERT L. TAYLOR, Chief Judge.
Defendant, State Farm Mutual Automobile Insurance Company, has moved to dismiss the complaint or for summary judgment on the grounds that the complaint fails to state a claim against the defendant upon which relief can be granted and the action the bankrupt, Glen Paul Wood, had against the defendant did not pass to the plaintiff trustee in bankruptcy.
An order was entered denying the motion without prejudice to renew at pre-trial or at such other time as deemed necessary. The motion has been renewed and supported by both written and oral arguments.
Wood, hereinafter sometimes called bankrupt, had a policy of insurance with the defendant, State Farm Mutual Automobile Insurance Company, hereinafter sometimes called insurance company, providing for coverage up to $10,000.00 for an accident which occurred on May 7, 1964. The bankrupt and his wife and other persons were sued as a result of the injuries sustained in the accident. Plaintiff claims that the lawsuits could have been compromised by a payment by the defendant of less than the $10,000.00 coverage. He thereafter filed a petition in bankruptcy listing as judgment creditors the plaintiffs in the automobile accident *407 litigation. The trustee claims that the insurance company acted in bad faith in the handling of the claims against bankrupt which resulted in a judgment against the bankrupt in excess of the insurance coverage.
The question presented by the motion is whether the trustee has a right to bring the suit under Section 70 of the Bankruptcy Act, which provides in part:
"(a) The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this Act, * * * to all of the following kinds of property wherever located
* * * * * *
"(5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise, seized, impounded, or sequestered: Provided, That rights of action ex delicto for * * * injuries to the person of the bankrupt * * * whether or not resulting in death, * * * shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process.
* * * * * *
"(6) rights of action arising upon contracts * * * or injury to his property; * * *."
The insurance company says that the effect of the provisions of Subsections 5 and 6 is that the following types of property passed to the trustee: (1) rights of action that the bankrupt could by any means have transferred; (2) rights of action that might have been levied upon, or otherwise seized, impounded or sequestered; (3) rights of action arising upon contracts; (4) rights of action for injury to bankrupt's property.
The parties agree that the law of Tennessee controls the characteristics of the type of action that brings the case within the provisions of Section 70 of the Bankruptcy Act. In re Landis, 41 F.2d 700 (C.A. 7, 1930); Lockhart v. Mittlemann, 123 F.2d 703 (C.A. 2, 1941).
An insurer may be liable to its insured for a judgment against the insured in excess of the insured's policy limits where the insurer's refusal to settle a claim against the insured within the limits is fraudulent or in bad faith. Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785.
Ex delicto actions for injury to property, as distinguished from actions ex delicto for injury to person, are assignable. Haymes v. Halliday, 151 Tenn. 115, 268 S.W. 130 (1924).
The case of Carne v. Maryland Casualty Company, 208 Tenn. 403, 346 S.W.2d 259, involved an action to recover an amount of a judgment in excess of the policy limits upon the theory that the insurance company acted in bad faith in refusing to settle. The Court observed that the suit was not one based on contract but was merely an ex delicto cause of action "even though the relationship of the parties out of which the tort was committed grew out of a contract. The contract part though has nothing to do with the action which is now being maintained." (Pp. 408, 409, 346 S.W.2d p. 262.)
The Court held that the action was not a survival action and could not be assigned, and therefore, dismissed the suit.
In Dillingham v. Tri-State Insurance Company, 214 Tenn. 592, 381 S.W.2d 914, a judgment creditor of the insured alleged bad faith and negligence on the part of the insurance company in refusing to settle within the policy limits. The Court held that the cause of action of the *408 insured against the insurance company could not be assigned by the insured to a judgment creditor and dismissed the case. In that connection, the Court said:
"Haymes v. Halliday, 151 Tenn. 115, 268 S.W. 130, makes it abundantly clear that `The test of the assignability of a right of action ex delicto is made to depend by the overwhelming weight of authority on its survivability.' 118 of 151 Tenn., 130 of 268 S.W. The cause of action sued on in Haymes v. Halliday, supra, was held to be one for injuries to real property which survives pursuant to the provision of Chapter 111 of the Acts of 1877 (now T.C.A. § 23-2904). It is to be noted in the light of some of the authorities mentioned in complainant's brief that in Haymes v. Halliday, supra, it is the survivability of the right of action that determines the assignability of the cause of action. The fact than (sic) an action brought may be revived under T.C.A. § 20-602 does not make the cause of action survive."
The facts in the case of Schueler v. Phoenix Assurance Co. of New York, 223 F.Supp. 643 (D.C.E.D.Mich., 1963) are similar to the facts in the instant case, except the Schueler case involved Michigan law which appears to be similar to the Tennessee law on the same subject. In that case, a trustee in bankruptcy attempted to maintain an action for an excess judgment over a policy limits against the bankrupt's insured. The Court held that the action sounded in tort and under Michigan law the action was not assignable. District Judge Thornton said that the action did not pass to the trustee under either subsection a(5) or a(6) of Section 70 of the Bankruptcy Act. The trustee's action was dismissed. In that connection, he said:
"In Jones v. Hicks, 358 Mich. 474, 483, 100 N.W.2d 243, 245, the Michigan Supreme Court has reiterated `the long recognized rule in this State that an action for damages for fraud may not be prosecuted by an assignee thereof.' This brings us full circle to subsection (5) of 11 U.S.C.A. § 110, sub. a, the effect of which in this posture of the case is to leave the Court with no alternative but to grant defendant's motion. Plaintiff's bankrupt could not, prior to the filing of the petition, have by any means transferred his right of action for bad faith on the part of defendant in refusing to settle the State court lawsuit, bad faith in such a situation having been held by the Michigan Supreme Court to constitute fraud." p. 645.
In sum, the bankrupt's right of action was not transferrable or assignable and did not survive the death of the bankrupt. The bankrupt's action did not arise under a contract, was not an injury to property and was not a right of action that could have been seized, impounded or levied upon. 30 Am.Jur.2dExecutions§ 136, at page 517. See Smith v. United States Fire Insurance Company, 126 Tenn. 435, 150 S.W. 97, 45 L.R.A.,N.S., 266.
Plaintiff relies upon the opinion in the case of Neese v. Brown, Tenn., 405 S.W. 2d 577. The Court held in that case that the right of a corporation before bankruptcy to maintain a suit for reimbursement for negligence of its directors was an asset to the company and passed to the trustee in bankruptcy under Section 70, subsection 6 of the Act.[1] In support of the holding, the Court cited Manning v. Campbell, 264 Mass. 386, 162 N.E. 770. The Court in that case observed that a director is a fiduciary charged with the duty of caring for the property of a corporation and managing its affairs honestly and in good faith. A breach of such duty usually resulted in damage to property. The Court also relied upon the case of Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281, quoting therefrom as follows:
"While normally that fiduciary obligation is enforceable directly by the corporation, or through a stockholders' *409 derivative action, it is, in the event of bankruptcy of the corporation, enforceable by the trustee. For that standard of fiduciary obligation is designed for the protection of the entire community of interests in the corporationcreditors as well as stockholders."
Vol. 8 C.J.S. Bankruptcy § 194 d, page 991, was also cited as follows:
"Likewise, it has been held that the corporation's right of action against officers and directors for negligence or mismanagement is an asset which passes to the trustee, * * *."
The Brown case is distinguishable from the case under consideration on the facts. The failure of the directors to properly look after the corporation usually results in damages to the property of the corporation. A right of action for damages to property is specifically vested in the trustee under subsection 6 of the Act. The fact that the Supreme Court of Tennessee in the Brown case did not refer to the cases of Carne v. Maryland Casualty Company, supra, and Dillingham v. Tri-State Insurance Company, supra, indicates that the Court did not intend to overrule them.
The trustee claims that the injury was a pocketbook injury and the right of action vested in the trustee. He relies upon Chapter 381 of the Public Acts of 1967 of the General Assembly of Tennessee. This phase of the case has neither been orally argued nor briefed. The Court reserves decision on the question until it is thoroughly briefed. The case will be set for oral argument on January 11, 1968 at 1:30 p. m., and the parties shall have 10 days after December 20, 1967 in which to file briefs. The briefs should discuss the question of whether the Act is retroactive and if retroactive, does it violate any vested constitutional rights of the defendant insurance company.
SUPPLEMENTAL MEMORANDUM
A memorandum opinion was filed in this case on December 19, 1967 in which it was held that prior to the effective date of Chapter 381 of the Public Acts of 1967 of the General Assembly of Tennessee the action of Glen Paul Wood did not pass to plaintiff, Oliver A. Smith, III, Trustee in Bankruptcy, because the action was not assignable and would not survive the death of Glen Paul Wood.
Decision was reserved on the question of whether the action passed under Chapter 381 of the Public Acts of 1967 awaiting the filing of briefs. Briefs have been filed and considered.
The pertinent parts of the Act read:
"SECTION 1. That any cause of action belonging to an insured person against his automobile liability insurance carrier, based upon the negligence or bad faith of such insurance carrier in failing or refusing to settle any claim against such insured person within the limits of his automobile liability insurance policy, shall survive the death of such insured person and shall pass to his or her personal representative.
SECTION 2. That any cause of action within the purview of Section 1 hereof shall by operation of law be assigned to and be an asset belonging to any trustee in bankruptcy, receiver or other person acting in a representative capacity for the creditors of such insured person, and such cause of action may be filed and maintained by such trustee, receiver or other person acting in a representative capacity for the creditors of such insured person in his or her own name as such representative in any court having jurisdiction and venue thereof against such automobile liability insurance carrier of such insured person.
SECTION 3. That no action, within the purview of Section 1 hereof, now pending or hereafter filed in any court of this State shall be abated or dismissed by any court upon the grounds that said action is or was not assignable by such insured person, to one of the persons or class of persons hereinabove set out." (Emphasis added.)
The Act became effective May 25, 1967. The record is silent as to when plaintiff was appointed trustee in bankruptcy. *410 This suit was filed on June 22, 1967, or approximately thirty days after the Act was passed.
The general rule is a statute will be presumed to operate prospectively and not retroactively unless it clearly appears from the statute that the Legislature intended it to operate retroactively. Collins v. East Tennessee, Virginia & Georgia Railroad Co., 56 Tenn. 841; Franklin v. Travelers Insurance Company, D.C., 155 F.Supp. 746.
A statute should not be given retroactive operation unless its words make that imperative. Shwab v. Doyle, 258 U.S. 529, 531, 42 S.Ct. 391, 66 L.Ed. 747; United States v. Magnolia Company, 276 U.S. 160, 48 S.Ct. 236, 72 L.Ed. 509.
A retroactive operation will not be given to a statute which interferes with antecedent rights, unless such is the unequivocal and inflexible import of its terms, and the manifest intention of the legislature, or "unless the statute contains within it a declaration of retroactivity `clear, strong and imperative.'" Commissioner of Internal Revenue v. Commodore, Inc., 6 Cir., 135 F.2d 89, 92; Franklin v. Travelers Insurance Company, supra; Shannon v. Board of Education of Kingsport, 199 Tenn. 250, 286 S.W.2d 571. See Southern Railway Company v. Miller, 6 Cir., 285 F.2d 202, 85 A.L.R.2d 842.
It is obvious from Section 3 that the Act is not only prospective but retroactive since it applies to "pending (actions) or (actions) hereafter filed in any court * * *."
The effect of the Act is simply to transfer the right to sue from the bankrupt to his trustee. It is not an "ex post facto law or law impairing the obligation of contracts" as contended by the defendant.
The Court concludes that the Act is constitutional and that plaintiff has the legal right to maintain this action.
The motion for summary judgment must be overruled.
NOTES
[1] "(6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property * * *."
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164 Mich. App. 436 (1987)
417 N.W.2d 524
JOHNSON
v.
KEENE
Docket No. 95764.
Michigan Court of Appeals.
Decided November 16, 1987.
Legal Services of Eastern Michigan (by Irene Sivavajchaipong and Edward J. Hoort), for plaintiff
Before: SAWYER, P.J., and MacKENZIE and W.J. CAPRATHE,[*] JJ.
SAWYER P.J.
In this case, we are called upon to review the circuit court's refusal to exercise jurisdiction over this child custody dispute pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), MCL 600.651 et seq.; MSA 27A.651 et seq. We affirm.
Plaintiff and defendant were granted a divorce in 1981 by an Arkansas chancery court. The divorce judgment awarded custody of the child to plaintiff, subject to the reasonable visitation rights of defendant. The divorce judgment was twice modified by the chancery court, in 1982 and 1983, to reflect changes in visitation rights and child support. In August of 1984, plaintiff and the minor *439 child moved to Michigan. The divorce judgment did not require permission of the Arkansas chancery court prior to the move.
On June 14, 1985, defendant petitioned the Arkansas chancery court to modify the decree of divorce and grant him custody of the child. On August 27, 1985, the chancery court granted defendant custody of the child based on its findings that plaintiff had continually denied defendant visitation and all contact with the child contrary to the prior orders of the court and that plaintiff had neglected the child's education. The chancellor granted plaintiff reasonable visitation rights, but only on the condition that plaintiff appear and explain her violation of the prior court orders.
On August 30, 1985, the minor child was playing with a friend outside plaintiff's home when a person or persons unknown swept the child away, leaving a copy of the Arkansas court order with the child's playmate. Approximately two months later, plaintiff received a letter from the child dated September 28, 1985, which indicated that the child was with her father in Japan, where he was apparently serving on active duty as a career officer in the United States Air Force.
On February 28, 1986, plaintiff filed a motion in the Saginaw Circuit Court to have the August 27, 1985, Arkansas order set aside or modified. Plaintiff argued in the alternative that the Arkansas court lacked subject matter jurisdiction to issue the custody decree and that Michigan now had jurisdiction to modify the Arkansas decree. Defendant did not appear before the circuit court.
The circuit court issued an opinion concluding that it lacked jurisdiction to determine whether Arkansas had jurisdiction to modify the terms of the divorce decree and that Michigan was an inconvenient forum to resolve the dispute given *440 the fact that the child was presently living in Japan. The circuit court did indicate, however, that it would reconsider its ruling on the forum non conveniens issue in the event that the child returned to the United States. Plaintiff now appeals.
We do not believe that the issue directly before us, or for that matter before the circuit court, is whether a Michigan court has jurisdiction to determine whether or not a sister state had jurisdiction to issue a custody order. Rather, the question before us and the circuit court is whether a Michigan court now has jurisdiction to issue its own custody decree and whether it should exercise that jurisdiction. However, as will be discussed below, the resolution of that issue does involve, at least indirectly, the question of the proper jurisdiction of the Arkansas court.
The jurisdiction of the circuit court to issue a custody decree is contained in MCL 600.653(1); MSA 27A.653(1), which provides as follows:
A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree or judgment if any of the following exist:
(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state.
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial *441 evidence concerning the child's present or future care, protection, training, and personal relationships.
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is in the best interest of the child that this court assume jurisdiction.
Turning to § 653(1)(a), we believe that the circuit court could exercise jurisdiction under this provision. MCL 600.652(e); MSA 27A.652(e) defines "home state" as follows:
"Home state" means the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of the named persons are counted as part of the 6-month or other period.
In the case at bar, the minor child was in Michigan until August 30, 1985. The instant action was filed in the Saginaw Circuit Court on February 28, 1986. Prior to being removed from the state in August of 1985, the child had lived in Michigan for approximately one year. Thus, Michigan had been the child's home state within six months prior to the commencement of the proceedings, albeit barely, and the child is absent from the state because of her removal by a parent, *442 namely defendant.[1] Accordingly, we believe that the circuit court had jurisdiction to consider a change in child custody pursuant to MCL 600.653(1)(a); MSA 17A.653(1)(a).[2]
Although we have concluded that Michigan has jurisdiction over the child custody dispute pursuant to Michigan law, our inquiry cannot end there. Rather, we must now look at another provision of the UCCJA which limits the authority of one state to modify the custody decrees of a sister state. MCL 600.664(1); MSA 27A.664(1) provides as follows:
If a court of another state has made a custody decree or judgment, a court of this state shall not modify that decree or judgment unless it appears to the court of this state that the court which rendered the decree or judgment does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 651 to 673 or has declined to assume jurisdiction to modify the decree or judgment and the court of this state has jurisdiction.
Thus, the circuit court of this state cannot modify the Arkansas order unless it appears that Arkansas *443 does not have jurisdiction or that it has declined jurisdiction. Since the Arkansas court did issue an order, it is obvious that it has not declined jurisdiction, and, thus, our inquiry is limited to the question of whether the Arkansas court possessed jurisdiction.
Turning to § 653(1), which was quoted above, it would not appear that the Arkansas court of chancery would have jurisdiction under § 653(1)(a), as Arkansas was not the home state of the child either at the time of the commencement of proceedings or within the six months prior to the commencement of proceedings. Similarly, the Arkansas court would have no jurisdiction under (1)(c), as the child was not physically present in Arkansas. With respect to (1)(d), since, as concluded above, Michigan would have jurisdiction, subparagraph (d) would be inapplicable for that reason. Thus, it would appear that if Arkansas continued to have jurisdiction, it would be under (1)(b) or not at all.
Section 653(1)(b) establishes jurisdiction if it is in the best interest of the child that a court of that state assume jurisdiction because there is a significant connection with the forum state and the child and at least one contestant and there is available evidence in the state concerning the child's present or future care, protection, training, and personal relationships.
Concerning the significant connection test, we believe that there is a sufficient connection between the child and her parents and Arkansas inasmuch as Arkansas was the forum of the divorce and the subsequent modifications to that judgment. Accordingly, Arkansas had, and continues to have, an ongoing connection with this case. With respect to the somewhat more subjective factors of the child's best interests in Arkansas *444 possessing jurisdiction and the availability of evidence in Arkansas, we would follow the reasoning of the trial court that it would not be appropriate for a Michigan court to second-guess the Arkansas court in its decision to continue to exercise jurisdiction.[3] We believe that the best policy to follow is to refrain from modifying the custody decree of our sister state where it would appear that our sister state continues to possess jurisdiction in the matter.
Indeed, we believe that giving such deference to our sister states is necessary to effectuate the policy considerations behind the UCCJA. The UCCJA was adopted for the purposes of, inter alia, avoiding jurisdictional competition between the various states, avoiding removal of children to other states where a favorable custody decree may be obtained, avoiding relitigation of custody decisions of other states, and detering continuing controversies over child custody. MCL 600.651(1); MSA 27A.651(1).[4] While it would appear that plaintiff moved to Michigan for reasons unrelated to the child custody dispute and was do not merely engaging in forum shopping, we do note that plaintiff attempted to invoke the jurisdiction of the circuit court only in reaction to an unfavorable custody order of the Arkansas court. That is, we are not faced with a case wherein a foreign divorce decree *445 was rendered some time ago and has not been recently modified and one of the parties now seeks modification due to a change in circumstance. Rather, we are faced with a very recent modification order which directly prompted plaintiff to file the instant action.[5]
Furthermore, we note that, if plaintiff believed Arkansas to no longer have jurisdiction or, even if continuing to have jurisdiction, that Arkansas no longer was the most appropriate forum for the custody dispute, plaintiff had the opportunity prior to the issuance of the last order from the court of chancery to request that the Arkansas court relinquish jurisdiction. Plaintiff, however, did not answer defendant's motion in Arkansas nor did she appear in the Arkansas chancery court. To our knowledge, plaintiff did not even send a written request to the chancery court to decline jurisdiction in favor of Michigan, which plaintiff could have done even if she were unable to travel to Arkansas to respond to the motion. Rather, plaintiff chose to ignore the Arkansas proceedings and, after the Arkansas court entered an order unfavorable to plaintiff, she rushed into a Michigan court seeking to have the Arkansas order set aside. While our reasoning differs in some manner from the circuit court's reasoning, we believe that the circuit judge properly deferred to the Arkansas chancery court in this matter.
Because of our resolution of the above issue, we find it unnecessary to separately consider the questions of whether the trial court properly declined jurisdiction on the grounds that Michigan was a forum non conveniens. However, we do note that our decision does not necessarily conflict with the *446 conclusion that Michigan is an inconvenient forum for this matter.
Affirmed. Costs to defendant.
MacKENZIE, J., concurred.
W.J. CAPRATHE, J. (concurring in part and dissenting in part).
I agree with the majority's conclusion that the circuit court had jurisdiction to consider a change in custody pursuant to MCL 600.653(1)(a); MSA 27A.653(1)(a). However, I respectfully dissent from the majority's opinion that the circuit court properly deferred to the Arkansas chancery court in this matter.
Under MCL 600.653(1); MSA 27A.653(1), if the court which rendered the decree, i.e., the Arkansas court, does not now have jurisdiction, then the circuit court should entertain a motion to modify the Arkansas decree. To determine if the Arkansas court had jurisdiction under the Uniform Child Custody Jurisdiction Act, MCL 600.651 et seq.; MSA 27A.651 et seq., one must look to the date of the filing of the motion to modify the decree. See Bull v Bull, 109 Mich App 328, 337; 311 NW2d 768 (1981).
Although Arkansas had jurisdiction on August 27, 1985, when it modified its original custody decree, it did not have jurisdiction on February 28, 1986, when plaintiff filed her motion in the circuit court to modify the Arkansas decree.
At that time, Arkansas lacked significant connection with the child and at least one party. The father and the child were in Japan and the mother was in Michigan. Arkansas no longer had available evidence concerning the child's present or future care, protection, training, and personal relationships. Accordingly, Arkansas did not have jurisdiction. MCL 600.653(1)(a); MSA 27A.653(1)(a).
*447 Since Michigan had jurisdiction over this matter under the home state rule, and Arkansas did not, the trial court should have entertained the motion to have the Arkansas order set aside or modified.
The trial court's finding that Michigan was an inconvenient forum also was an insufficient reason to refuse to assert jurisdiction. Under the UCCJA, a finding of inconvenient forum cannot be properly made unless the court finds that another state is a more convenient forum. MCL 600.657(5); MSA 27A.657(5). See Pennsylvania ex rel Octaviano v Dembrowski, 290 Pa Super 322; 434 A2d 774 (1981). This is especially necessary in the present case where the state rendering the original custody decree lost its jurisdiction, leaving only Michigan as an appropriate forum to litigate this dispute. Therefore, the trial court did not properly exercise its discretion.
I would remand this matter for further proceedings, including consideration of the ramifications of the Soldiers' and Sailors' Relief Act of 1940, as amended, 50 USC 501 et seq.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] We do note that, at the present time, the exact nature of the events leading up to the child's removal from Michigan is uncertain. Apparently, the description of the individual who took the child did not match that of defendant. However, because a copy of the Arkansas custody order was left with the child's playmate, we believe there is strong indication that the child was removed by an agent of defendant. An action by defendant's agent should be considered the same as action by defendant since to distinguish between the two would be to allow defendant to achieve through the back door that which he could not achieve through the front door.
[2] We also note that there appears to be a strong argument that the circuit court could exercise jurisdiction under § 653(1)(b) and also under (d), in the latter case assuming that Arkansas did not have jurisdiction. However, we choose not to address those issues at this time since we found jurisdiction under (a). In any event, jurisdiction would not be assumable under (c) as the child was not physically present in Michigan.
[3] We acknowledge that there is nothing in the record before us to suggest that the question of Arkansas jurisdiction was raised during the Arkansas proceeding. However, the fact that the Arkansas court of chancery entertained defendant's motion and did issue an order suggests that the chancellor of the court believed he had jurisdiction to issue the custody modification.
[4] We acknowledge that some of the policies behind the UCCJA, as expressed in § 651, would support Michigan exercising jurisdiction over the child in the case at bar since there was a connection between the child, plaintiff, and the State of Michigan, as they had lived here for approximately one year. However, we believe that comity behooves us to give deference to Arkansas since it was the original forum of the divorce and had recently issued a custody order.
[5] We also note that it was plaintiff who originally chose Arkansas as the forum of the divorce. It is not as if plaintiff never desired Arkansas to consider the matter.
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966 F.2d 958
59 Fair Empl.Prac.Cas. (BNA) 575,59 Empl. Prac. Dec. P 41,670,15 Employee Benefits Cas. 2514Tom PEARCE, Plaintiff-Appellee, Cross-Appellant,v.CARRIER CORPORATION, Defendant-Appellant, Cross-Appellee.
No. 91-8531.
United States Court of Appeals,Fifth Circuit.
July 10, 1992.
Peter F. Healey, Jr., Cherie B. Artz, Schnader, Harrison, Segal & Lewis, Washington, D.C., Shelton E. Padgett, Akin, Gump, Strauss, Hauer & Feld, San Antonio, Tex., for Carrier Corp.
Hubert L. Gill, Schaubhut & Gill, Austin, Tex., for Tom Pearce.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:
1
This matter is before the court on the appeal of Carrier Corporation of post-trial motions following an adverse judgment on jury verdict in an Age Discrimination in Employment Act case, together with the cross-appeal by Tom Pearce of an adverse summary judgment on claims for pension benefits and severance pay and adverse rulings on reinstatement or alternatively for front pay.
2
We are presented with an issue of first impression regarding whether an ADEA claimant must prove actual loss to recover damages for health insurance benefits or, in the alternative, whether the claimant automatically recoups the value of the insurance fringe benefit regardless of whether he has purchased substitute coverage or incurred out-of-pocket medical expenses. There is a split in the circuits. We agree with our colleagues in the Seventh and Ninth Circuits and now hold that an ADEA claimant is limited to recovery of those expenses actually incurred by either replacement of the lost insurance or occurrence of the insured risk.1
3
Finding no merit in any other issue raised, the appealed judgments and rulings of the trial court are AFFIRMED.
1
See Kossman v. Calumet County, 800 F.2d 697 (7th Cir.1986) and Galindo v. Stoody Co., 793 F.2d 1502 (9th Cir.1986) (plaintiff must prove purchase of alternative coverage or expenses incurred in lieu thereof); but see Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir.1985); Blackwell v. Sun Electric Corp., 696 F.2d 1176 (6th Cir.1983) (not requiring actual damages proof)
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74 Cal.Rptr.3d 108 (2008)
43 Cal.4th 56
179 P.3d 905
William Keith JOHNSON, Plaintiff and Appellant,
v.
AMERICAN STANDARD, INC., Defendant and Respondent.
No. S139184.
Supreme Court of California.
April 3, 2008.
*111 Metzger Law Group, Raphael Metzger, Gregory A. Coolidge, Long Beach, and Peter F. Klein, for Plaintiff and Appellant.
Steven G. Ingram and Sharon J. Arkin, Sacramento, for Consumer Attorneys for California as Amicus Curiae on behalf of Plaintiff and Appellant.
Munger, Tolles & Olson, Jeffrey L. Bleich, Kathleen M. McDowell, Paul J. Watford, Blanca Fromm Young and Aimee Feinberg, San Francisco, for Defendant and Respondent.
Hugh F. Young, Jr.; Martin, Bischoff, Templeton, Langlset & Hoffman, Jonathan M. Hoffman; Drinker Biddle & Reath and Alan Lazarus, San Francisco, for Product Liability Advisory Council, Inc., as Amicus Curiae on behalf of Defendant and Respondent.
Horvitz & Levy, David M. Axelrad, Mary-Christine Sungaila, Encino; National Chamber Litigation Center, Inc., and Robin S. Conrad, for Chamber of Commerce of the United States of America, American Chemistry Council, American International Companies, ExxonMobil Corporation, The Farmers Insurance Group of Companies and Honeywell International, Inc., as Amici Curiae on behalf of Defendant and Respondent.
Duane Morris, Robert L. Byer, Paul J. Killion and Kathryn K. Schutz, San Francisco, for FLSMIDTH, Inc., as Amicus Curiae on behalf of Defendant and Respondent.
CHIN, J.
This product liability action raises a question of first impression in California; i.e., whether we should adopt the "sophisticated user" doctrine and defense to negate a manufacturer's duty to warn of a product's potential danger when the plaintiff has (or should have) advance knowledge of the product's inherent hazards. The defense is specifically applied to plaintiffs who knew or should have known of the product's hazards, and it acts as an exception to manufacturers' general duty to warn consumers. (See Rest.2d Torts, § 402A.)
The federal courts have adopted the doctrine as an affirmative defense in diversity cases, and they predict that we will do the same. (In re Air Crash Disaster (6th Cir.1996) 86 F.3d 498, 522; In re Related Asbestos Cases (N.D.Cal.1982) 543 F.Supp. 1142, 1151 (In re Asbestos).) For the reasons discussed below, we conclude that the sophisticated user defense applies in California. We affirm the Court of Appeal judgment and remand for further proceedings consistent with this holding.
FACTS AND PROCEDURAL HISTORY
Plaintiff William Keith Johnson is a trained and certified heating, ventilation, and air conditioning (HVAC) technician. *112 He began working in the HVAC field in 1996 when he first received training at ITT Technical Institute, where he completed a year-long course on HVAC systems. Plaintiff continued to work as an HVAC technician until 2002. He received additional training and certifications, both on and off the job, including an Environmental Protection Agency (EPA) "universal" certification after he passed a five-part exam. "Universal" certification is the highest certification an HVAC technician can obtain from the EPA, and it allows those certified to work on, and purchase, refrigerant for large commercial air conditioning systems. (40 C.F.R. §§ 82.154(m), 82.161 (2007).) "Universally" certified technicians are trained professionals, and their tasks include brazing (welding) and part replacement.
Large air conditioning systems commonly use R-22, a hydrochlorofluorocarbon refrigerant. The refrigerant can decompose into phosgene gas when exposed to flame or high heat, as could happen while a technician is brazing air conditioner pipes containing residual refrigerant. Exposure to phosgene gas may cause numerous health problems, and manufacturers and HVAC technicians have generally known of the dangers this exposure could cause since as early as 1931. The dangers and risks associated with R-22 are noted on Material Safety Data Sheets (MSDS's). (Cal.Code Regs., tit. 8, § 5194, subd. (g)(1), (2).)[1] The purpose of MSDS's is to inform those who may come into contact with potentially hazardous chemicals about their dangers. (See Cal.Code Regs., tit. 8, § 5194, subd. (g).) Employers are required to use the MSDS to train and educate their employees about the chemicals and dangers to which they may be exposed on the job. (See Cal.Code Regs., tit. 8, § 5194, subd. (h).)[2] Among other things, employers are required to tell employees where they can find the MSDS's, how to read them, how to detect the "presence of dangerous materials, and how to protect against possible health hazards from those materials. (Cal.Code Regs., tit. 8, § 5194, subd. (h)(2)(C), (D), (E), (F).) Beginning in 1997, every time he purchased the refrigerant R-22, plaintiff received, and sometimes read, an MSDS.
In June 2003, plaintiff filed his first amended complaint, suing various chemical manufacturers, chemical suppliers, and manufacturers of air conditioning equipment, including defendant American Standard, Inc.[3] One of the systems on which plaintiff worked in 2002 was located at the Bank of America Del Amo branch. Plaintiff specifically alleged that he brazed refrigerant lines on an evaporator defendant manufactured in 1965 that contained R-22 refrigerant, creating and exposing him to phosgene gas. Plaintiff alleged that the maintenance and repairs he performed on air conditioning units in the normal course of his job created and exposed him to phosgene gas, causing him to develop pulmonary fibrosis. The causes of action *113 against defendant are based on its alleged failure to warn of the potential hazards of R-22 exposure. They include negligence, strict liability failure to warn, strict liability design defect, and breach of implied warranties.
In each cause of action, plaintiffs theory was that defendant knew that servicing the evaporator would create harmful phosgene gas, but defendant failed to provide plaintiff with an adequate warning. (See Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002, 281 Cal. Rptr. 528, 810 P.2d 549 (Anderson).) As the Court of Appeal observed, plaintiff contended that "a warning would be adequate if it informed users that brazing refrigerant lines can result in creation of phosgene, that phosgene inhalation can result in potentially fatal lung disease, that phosgene can be detected through its fresh-cut-grass smell, changes in flame color during brazing, or physical symptoms like burning eyes or shortness of breath, and that users should wear respiratory protection while brazing and stop brazing on detection of phosgene."
In May 2004, defendant moved for summary judgment on two grounds. First, the company claimed it had no duty to warn about the potential hazards of R-22 because it did not manufacture that refrigerant; it only manufactured the evaporator that contained the refrigerant. Defendant also claimed it had no duty to warn about the risks of R-22 exposure because it could assume that the group of trained professionals to which plaintiff belonged, and plaintiff himself, were aware of those risks. As the Court of Appeal observed, "the undisputed facts were that under federal law, HVAC technicians who work on commercial equipment must be certified by the EPA with `universal' certification, which is granted after an exam. They are `trained professionals.' Most HVAC technicians also have some kind of trade or professional training. [Plaintiff] had universal certification and had completed a one-year course of study in HVAC systems at ITT Technical Institute."[4] In September 2004, the trial court granted defendant's motion for summary judgment and entered judgment in its favor on both grounds. The Court of Appeal affirmed the trial court's judgment on the sole ground that the sophisticated user defense applies in California. The court held that "a manufacturer cannot be liable to a sophisticated user of its product for failure to warn of a risk, if a sophisticated user should reasonably know of that risk." The Court of Appeal held that because plaintiffs theory was the same in all causes of action, i.e., product liability through the failure to warn, the sophisticated user defense should apply to plaintiffs complaint in its entirety.
The Court of Appeal next addressed whether defendant was entitled to summary judgment "on the theory that there was no duty to warn because the danger at issue was one generally known to members of the profession, one which [plaintiff] 'could reasonably have been expected to know' [citation] or ... [that defendant] had `reason to expect' that HVAC technicians would know of the risk."
The court observed that there was "undisputed evidence that HVAC technicians could reasonably be expected to know of *114 the hazard of brazing refrigerant lines." Despite plaintiffs testimony that he had read the MSDS for R-22, but did not understand that he should avoid heating it, the Court of Appeal concluded that there was undisputed evidence from the relevant declarations and depositions of HVAC technicians that the EPA requires those professionals "to understand the decomposition products of refrigerants at high temperatures." The court noted that "`the study guide informed users that refrigerant in contact with high heat can form dangerous substances, and the Material Safety Data Sheet for R-22 informed technicians that the product can decompose when in contact with heat, releasing toxic gases.'" The court affirmed the summary judgment in defendant's favor. As noted, we granted review to determine whether the sophisticated user defense should apply in California.
DISCUSSION
A. Procedural Background; Summary Judgment
Because plaintiff appealed from the trial court's order granting defendant summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) In this action, therefore, we must determine whether defendant has shown that plaintiff has not established a prima facie case of negligence or strict liability, "a showing that would forecast the inevitability of a nonsuit" in defendant's favor. (Id. at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) "If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial." (Ibid.) In performing our de novo review, we view the evidence in the light most favorable to plaintiff as the losing party. (Ibid.) In this case, we liberally construe plaintiffs evidentiary submissions and strictly scrutinize defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs favor. (Ibid.)
B. Development of the Sophisticated User Defense
1. Background
Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. (Anderson, supra, 53 Cal.3d at p. 1003, 281 Cal.Rptr. 528, 810 P.2d 549.) The requirement's purpose is to inform consumers about a product's hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use. (Ibid.) Typically, under California law, we hold manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product. (Ibid.; see also Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1108, 56 Cal.Rptr.2d 162, 920 P.2d 1347 (Carlin).) Anderson made it clear that "[w]hatever may be reasonable from the point of view of the manufacturer, the user of the product must be given the option either to refrain from using the product at all or to use it in such a way as to minimize the degree of danger." (Anderson, supra, 53 Cal.3d at p. 1003, 281 Cal.Rptr. 528, 810 P.2d 549.) Anderson explained that the rule of strict liability imposed on all manufacturers for their failure to warn of known or reasonably scientifically knowable risks was one that we had previously required of drug manufacturers. (Id. at p. 1000, 281 Cal.Rptr. 528, 810 P.2d 549; Carlin, supra, 13 Cal.4th at p. 1109, 56 Cal.Rptr.2d 162, 920 P.2d 1347.) *115 Conversely, when a sufficient warning is given, "the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." (Rest.2d Torts, § 402A, com. j, p. 353.)
The sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about the products' potential hazards. (In re Asbestos, supra, 543 F.Supp. at p. 1151.) The defense is considered an exception to the manufacturer's general duty to warn consumers, and therefore, in most jurisdictions, if successfully argued, acts as an affirmative defense to negate the manufacturer's duty to warn. (Ibid.)
Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware. (See 4 Shearman & Redfield, Negligence (rev. ed. 1041) Manufacturers and Vendors, § 656, p. 1576.) Because these sophisticated users are charged with knowing the particular product's dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. (Owen, Products Liability Law (2005) § 9.5, p. 599.) The rationale supporting the defense is that "the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer's employees or downstream purchasers." (Ibid.) This is because the user's knowledge of the dangers is the equivalent of prior notice. (Billiar v. Minnesota Mining and Mfg. Co. (2nd Cir.1980) 623 F.2d 240, 243 ["[N]o one needs notice of that which he already knows"].)
As we explain further below, the sophisticated user defense evolved out of the Restatement Second of Torts, section 388 (section 388) and the obvious danger rule, an accepted principle and defense in California. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64, 107 Cal.Rptr. 45, 507 P.2d 653; Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 933-934,133 Cal.Rptr. 483 (Bojorquez).) In addition, as we explain, the defense applies equally to strict liability and negligent failure to warn cases. The duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiffs subjective knowledge. (See, e.g., Humble Sand & Gravel, Inc. v. Gomez (Tex.2004) 146 S.W.3d 170,183.)
2. Section 388 and the Obvious Danger Rule
Section 388 provides that a supplier of goods is liable for physical harm the goods cause if the supplier knows, or should know, the items are likely to be dangerous, fails to reasonably warn of the danger, and "has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition." Comment k to section 388, subdivision (b), is entitled "When warning of defects unnecessary," and it emphasizes this point. It declares that although the condition may be one that only specialists would perceive, the supplier is only required to inform the users of the risk if the manufacturer has "no reason to believe that those who use it will have such special experience as will enable them to perceive the danger[.]" (§ 388, subd. (b), com. k, p. 307.)
Courts have interpreted section 388, subdivision (b), to mean that if the manufacturer reasonably believes the user will know or should know about a given product's risk, the manufacturer need not *116 warn that user of that risk. (Martinez v. Dixie Carriers, Inc. (5th Cir.1976) 529 F.2d 457, 464-465; Lockett v. General Electric Company (E.D.Pa.1974) 376 F.Supp. 1201, 1208-1209, affd. (3d Cir. 1975) 511 F.2d 1394; Bryant v. Hercules Incorporated W.D.Ky.1970) 325 F.Supp. 241, 247.) This is "especially [true] when the user is a professional who should be aware of the characteristics of the product." (Strong v. E.I. Du Pont de Nemours Co., Inc. (8th Cir.1981) 667 F.2d 682, 687.)
Other jurisdictions that have adopted the sophisticated user defense have cited section 388 and the obvious danger rule as a basis for doing so. (E.g., Akin v. Ashland Chemical (10th Cir.1998) 156 F.3d 1030, 1037 [no need to warn a knowledgeable purchaser like the United States Air Force about the dangers of low-level chemical exposure]; Strong v. E.I. Du Pont de Nemours Co., Inc., supra, 667 F.2d at pp. 686-687 [natural gas pipe manufacturer had no duty to warn a natural gas utility, or the utility's employee, of well known gas line dangers].) Other courts have employed the same principle to justify the sophisticated user defense without specifically citing the Restatement Second of Torts. (E.g., Antcliff v. State Employees Credit Union (1982) 414 Mich. 624, 327 N.W.2d 814, 818-819, 821 [scaffolding manufacturer had no duty to give information and instruction about safe rigging procedure to a professional painter experienced in rigging procedure].) While this court has not expressly adopted a sophisticated user defense, it has adopted section 388 as law in California. (See Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 64, 107 Cal.Rptr. 45, 507 P.2d 653.)
California law also recognizes the obvious danger rule, which provides that there is no need to warn of known risks under either a negligence or strict liability theory. (Bojorquez, supra, 62 Cal.App.3d at pp. 933-934, 133 Cal.Rptr. 483; Holmes v. J.C. Penney Co. (1982) 133 Cal.App.3d 216, 220, 183 Cal.Rptr. 777.) In Bojorquez, a child bought a slingshot from a 7-Eleven store and used it to shoot a projectile at the plaintiff, injuring one of her eyes. (Bojorquez, supra, 62 Cal.App.3d at p. 932, 133 Cal.Rptr. 483.) The plaintiff sued the slingshot's retailer and wholesaler, claiming several causes of action, including strict liability for failing to warn about a slingshot's dangers. (Ibid.) The trial court dismissed her claim, and the Court of Appeal affirmed the judgment, observing that "the seller does not need to add a warning when `the danger, or potentiality of danger[,] is generally known and recognized.' ... There is no need to include a warning; the product is not defective because it lacked a warning; there is no cause of action in strict liability." (Id. at pp. 933-934, 133 Cal.Rptr. 483, quoting Restatement 2d Torts, § 402A, com. j.) Similarly, Holmes v. J.C. Penney Co., supra, 133 Cal.App.3d at page 220, 183 Cal. Rptr. 777, relying on Bojorquez, held that the dangers and potential harms associated with firing a pellet gun were obvious and did not require the seller to warn about them. (See also Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, 13 Cal.Rptr.2d 811 [manufacturer of intrauterine device not strictly liable to patient who died after doctors implanted manufacturer's product: "We are aware of no authority which requires a manufacturer to warn of a risk which is readily known and apparent to the consumer, in this case the physician. Further, if the risk ... is universally known in the medical profession, the failure to warn the physician of that risk cannot be the legal cause of the decedent's death"].)
Although the Court of Appeal was aware that "no California court has squarely adopted the [sophisticated user] doctrine," *117 the court observed that "it is a natural outgrowth of the rule that there is no duty to warn of known risks or obvious dangers." As the Court of Appeal reasoned, the sophisticated user defense simply recognizes the exception to the principle that consumers generally lack knowledge about certain products, for example heavy industrial equipment, and hence the dangers associated with them are not obvious. For those individuals or numbers of professions who do know or should know about the product's potential dangers, that is, sophisticated users, the dangers should be obvious, and the defense should apply. Just as a manufacturer need not warn ordinary consumers about generally known dangers, a manufacturer need not warn members of a trade or profession (sophisticated users) about dangers generally known to that trade or profession.
3. Fierro v. International Harvester Co.
One California court has, in dictum, addressed the sophisticated user defense in the strict liability context, and the court's decision has been the focus of federal jurisprudence discussed further below. (Fierro v. International Harvester Co. (1982) 127 Cal.App.3d 862, 179 Cal.Rptr. 923 (Fierro).) The plaintiff, Fierro, sued International Harvester Company (International), because it manufactured the truck her husband was driving when he crashed and died. (Id. at p. 865, 179 Cal.Rptr. 923.) International manufactured skeleton trucks that came with only an engine, cab and chassis, which allowed purchasers to complete or add to the truck as they saw fit. (Ibid.) Luer Packaging Company (Luer) purchased one of these trucks from International and installed a refrigeration unit on the chassis. (Ibid.) Five years later, the plaintiffs husband was driving the truck in the course and scope of his job with Luer. The truck overturned after blowing a tire, crashed, skidded for a distance, spilled fuel, and caught fire. (Ibid.)
The plaintiff and Luer's worker's compensation insurance carrier brought a wrongful death action seeking to impose liability on International for negligence and manufacturer's strict liability. (Fierro, supra, 127 Cal.App.3d at p. 865, 179 Cal.Rptr. 923.) The evidence at trial focused on "the location of the fuel tank and filler necks and their exposure to damage when the truck struck the guard rail and turned over." (Ibid.) During trial, the plaintiff alleged that International had to warn Luer that attaching power cables from the refrigerator unit to the truck's battery could create a fire hazard. (Id. at p. 866, 179 Cal.Rptr. 923.) Even though these were not dangers an average consumer would perceive, the trial court refused to instruct the jury on the issue of failure to warn. (Ibid.) The Court of Appeal affirmed the trial court's judgment after concluding that the court was justified in not instructing the jury on the failure to warn because the plaintiff had not properly raised that issue at trial. (Ibid.)
In dictum, the Court of Appeal explained that International, as the defendant manufacturer, need not warn the purchaser Luer because "[a] sophisticated organization like Luer does not have to be told that gasoline is volatile and that sparks from an electrical connection or friction can cause ignition." (Fierro, supra, 127 Cal.App.3d at p. 866, 179 Cal. Rptr. 923.) The court observed that "[t]here was no evidence that any feature of the skeleton unit was unique or contained any component or capability which was known to International and which was not known to or readily observable by Luer. The fuel tanks and the filler spouts were patently exposed, and they were obviously designed to hold gasoline. The *118 properties and propensities of that volatile liquid are a matter of common knowledge. Nor did Luer need to be advised of the necessity to cover and protect the exposed fuel tanks before operating the unit under circumstances which could subject them to damage." (Ibid.) In other words, the lack of a warning "to Luer did not substantially or unreasonably increase any danger that may have existed in using the [truck]." (Ibid.) The Court of Appeal impliedly adopted the sophisticated user defense in rationalizing its affirmance of the trial court's judgment.
4. Federal Decisions
The federal courts took notice of Fierro and predicted that this court would eventually adopt the sophisticated user defense. In an important products liability action filed in the Northern District of California, the plaintiffs "were insulators and shipyard workers employed by the United States Navy during varying periods. In the course of their employment with the Navy, plaintiffs were allegedly exposed to asbestos products manufactured by defendants. Plaintiffs claim[ed] that defendants' asbestos products caused injury to them." (In re Asbestos, supra, 543 F.Supp. at p. 1150.) The defendants claimed "that the Navy was negligent in failing to provide plaintiffs with a safe work place and that this negligence constituted a superseding cause sufficient to relieve defendants of liability." (Ibid.) The court agreed that the sophisticated user defense applied to strict liability claims and refused to grant the plaintiffs' motion to strike the defense. (Ibid.) The court believed the highest California court would permit the defense. The federal court recognized, however, that under California law the plaintiffs could undercut the application of the sophisticated user defense by demonstrating that the defendants might have foreseen the Navy's alleged negligence, and so, it should not absolve them of liability. (Id. at pp. 1150-1151.)[5]
In re Asbestos, supra, 543 F.Supp. at page 1151 pointed, out that the defendants also asserted that the Navy was a `sophisticated user's asbestos products that is, that the Navy as an employer, was as aware of the dangers of asbestos as were defendants and that the Navy nonetheless misused of the products, thereby absolving the defendants of liability for failure to warn the Navy's employees of the products' dangers." Various federal courts that have applied state law under diversity jurisdiction have allowed the sophisticated user defense. (See, e.g., In re Air Crash Disaster, supra, 86 F.3d at pp. 521-522 [applying sophisticated user defense in finding no negligence for manufacturer's failure to warn of danger in aircraft warning system]; Bradco Oil & Gas Co. v. Youngstown Sheet & Tube Co. (5th Cir. 1976) 532 F.2d 501, cert. den. (1977) 429 U.S. 1095, 97 S.Ct. 1111, 51 L.Ed. 542 [sophisticated user defense applied in a strict liability case]; In re Asbestos, supra, 543 F.Supp. at p. 1151.) Although federal circuit and district court decisions interpreting state law are not binding on our court, we find their reasoning persuasive in adopting the sophisticated user defense in our jurisdiction. (See People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129.)
5. The Selma Decision
Plaintiff asserts that we should adopt the reasoning of Selma Pressure Treating *119 Co. v. Osmose Wood Preserving Co. (1990) 221 Cal.App.3d 1601, 271 Cal.Rptr. 596, which rejected the sophisticated user defense. But a close reading of Selma indicates that the court did not reject the defense at all. The issue in Selma was whether a manufacturer had to warn the general public of the risks of damage its chemicals caused that the ordinary user could not reasonably be expected to know. Selma acknowledged the sophisticated user defense through its pronouncement that the existence of unknown dangers gives rise to the duty to warn. (Id. at p. 1623, 271 Cal.Rptr. 596.) Selma recognizes that a defendant may introduce evidence demonstrating that "a user has sufficient expertise to be charged with the knowledge of risks associated with a particular product." (Ibid.) Selma's holding, therefore, is consistent with the sophisticated user defense and the other case law discussed thus far. Nothing in Selma's reasoning persuades us not to adopt the sophisticated user defense, and to the extent that it might cause confusion, we would disapprove of its reasoning.
C. Public Policy
Not all warnings, however, promote user safety. Requiring manufacturers to warn their products' users in all instances would place an onerous burden on them and would "`invite mass consumer disregard and ultimate contempt for the warning process.'" (Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 701, 200 Cal.Rptr. 870, 677 P.2d 1147, quoting Twerski et al., The Use and Abuse of Warnings in Products LiabilityDesign Defect Litigation Comes of Age (1976) 61 Cornell L.Rev. 495, 521; see also Rest.3d Torts, Products Liability, § 2, com. j, p. 31 ["[Requiring warnings of obvious or generally known risks could reduce the efficacy of warnings generally"].) The sophisticated user defense fits into this understanding of the role of warnings; it helps ensure that warnings will be heeded.
In addition, numerous generally safe products exist that can become hazardous when the proper precautions are not followed. Although manufacturers are responsible for products that contain dangers of which the public is unaware, they are not insurers, even under strict liability, for the mistakes or carelessness of consumers who should know of the dangers involved. (Anderson, supra, 53 Cal.3d at p. 994, 281 Cal.Rptr. 528, 810 P.2d 549.) Accordingly, we adopt the defense in California. We now examine the defense's exact contours.
D. How the Defense Operates in California
1. A "Should Have Known" Standard
A manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger. It would be nearly impossible for a manufacturer to predict or determine whether a given user or member of the sophisticated group actually has knowledge of the dangers because of the infinite number of user idiosyncrasies. For example, given users may have misread their training manuals, failed to study the information in those manuals, or simply forgotten what they were taught. However, individuals who represent that they are trained or are members of a sophisticated group of users are saying to the world that they possess the level of knowledge and skill associated with that class. If they do not actually possess that knowledge and skill, that fact should not give rise to liability on the part of the manufacturer.
*120 Under the "should have known" standard there will be some users who were actually unaware of the dangers. However, the same could be said of the currently accepted obvious danger rule; obvious dangers are obvious to most, but are not obvious to absolutely everyone. The obvious danger rule is an objective test, and the courts do not inquire into the user's subjective knowledge in such a case. In other words, even if a user was truly unaware of a product's hazards, that fact is irrelevant if the danger was objectively obvious. (3 American Law of Products Liability (3d ed. 1993) Warnings, § 32.66, p. 113-114; Bowersfield v. Suzuki Motor Corp. (E.D.Pa.2000) 111 F.Supp.2d 612, 622; see Solen v. Singer (1949) 89 Cal. App.2d 708, 714, 201 P.2d 869 [there is no obligation "`to give warning of an obvious danger or one which should have been perceived by the invitee'" (italics added) ]; see also Simmons v. Rhodes & Jamieson, Ltd. (1956) 46 Cal.2d 190, 194, 293 P.2d 26.) Thus, under the sophisticated user defense, the inquiry focuses on whether the plaintiff knew, or should have known, of the particular risk of harm from the product giving rise to the injury.
2. Applicability' to Negligence and Strict Liability Causes of Action
As noted above, although California law recognizes the differences between negligence and strict liability causes of action (Anderson, supra, 53 Cal.3d at p. 987, 281 Cal.Rptr. 528, 810 P.2d 549), the sophisticated user defense is applicable to both. As amicus curiae Chamber of Commerce of the United States of America et al. observe, our Anderson holding recognizes there is little functional difference between the two theories in the failure to warn context. (See, e.g., Cupp & Polage, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis (2002) 77 N.Y.U. L.Rev. 874 [noting there is little substantive distinction between negligence and strict liability causes of action in the failure to warn context].)
In addition, as noted, Fierro, without discussing the issue in dictum, applied the sophisticated user defense to a strict liability cause of action. (Fierro, supra, 127 Cal.App.3d at pp. 865, 866, 179 Cal.Rptr. 923.) Likewise, California courts have applied the obvious danger rule to strict liability causes of action. (See Bojorquez, supra, 62 Cal.App.3d at pp. 933-934, 133 Cal.Rptr. 483; Holmes v. J.C. Penney Co., supra, 133 Cal.App.3d at p. 220, 183 Cal. Rptr. 777.)
Plaintiff asserts that applying the "should have known" prong of the sophisticated user defense incorrectly converts his strict liability cause of action into a negligence cause of action. He claims that if we adopt the sophisticated user defense, we should limit its applicability to strict liability failure to warn claims in which a plaintiff had actual knowledge of the danger in question. Anything less, plaintiff claims, would convert his strict liability failure to warn cause of action "into nothing more than a cause of action for negligence." We disagree.
As plaintiff observes, some states recognize the sophisticated user defense in negligence actions, but reject it in strict products liability cases. (See, e.g., Russo v. Abex Corp. (E.D.Mich.1987) 670 F.Supp. 206, 207 [sophisticated user defense used in negligence cases does not exist under strict liability principles because "seller is duty-bound to warn all foreseeable users," even sophisticated ones]; accord, Menna v. Johns-Manville Corp. (D.NJ.1984) 585 F.Supp. 1178, 1184 [sophisticated user defense applicable to negligence claims only; duty to warn cannot depend on plaintiffs knowledge level or sophistication].) As defendant observes, however, the use of a *121 "should have known" standard does not conflict with principles of strict liability. Strict liability requires "`a plaintiff to prove only that the defendant did not adequately warn of a particular risk (Carlin, supra, 13 Cal.4th at p. 1112, 56 Cal.Rptr.2d 162, 920 P.2d 1347.) In the context of sophisticated user defense, because the intended users are deemed to know of the risks, manufacturers have no obligation to warn, and providing no warning is appropriate. The focus of the defense, therefore, is whether the danger in question was so generally known within the trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged. Consequently, there is no reason why the sophisticated user defense should not be as available against strict liability causes of action as it is for negligence causes of action. In both instances, the sophisticated user's knowledge eliminates the manufacturer's need for a warning.
This approach is consistent with the Restatement Second of Torts, section 402A, which addresses strict liability. Comment j instructs that even in cases of strict liability "a seller is not required to warn ... when the danger, or potentiality for danger, is generally known and recognized." (Restatement 2d Torts, supra, § 402A, com. j, p. 353.) In addition, even if the "should have known" standard is considered more closely aligned with a negligence concept, we have repeatedly held that strict liability products liability law in California may incorporate negligence concepts without undermining the principles fundamental to a strict liability claim. (See e.g., Anderson, supra, 53 Cal.3d at pp. 1002-1003, 281 Cal.Rptr. 528, 810 P.2d 549 [requiring manufacturers to warn of dangers that are known or reasonably knowable]; Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 734, 144 Cal. Rptr. 380, 575 P.2d 1162 [holding that principles of comparative fault apply in strict products liability actions]; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 433, 143 Cal.Rptr. 225, 573 P.2d 443 [adopting risk-benefit test for design defect claims and rejecting claim that test improperly introduces an element that "`rings of negligence'"].)
In Anderson, this court stated that "the claim that a particular component `rings of or `sounds in' negligence has not precluded its acceptance in the context of strict liability.... [¶] ... [¶] ... [T]he strict liability defense has incorporated some well-settled rules from the law of negligence and has survived judicial challenges asserting that such incorporation violates fundamental principles of the defense." (Anderson, supra, 53 Cal.3d at pp. 1001-1004, 281 Cal. Rptr. 528, 810 P.2d 549.) Anderson agreed that failure to warn claims involve some consideration of the defendant's conduct and do not necessarily focus exclusively on the product's condition. The court recognized that "[i]t may also be true that the `warning defect' theory is `rooted in negligence' to a greater extent than are the manufacturingor design-defect theories. The `warning defect' relates to a failure extraneous to the product itself. Thus, while a manufacturing or design defect can be evaluated without reference to the conduct of the manufacturer [citation], the giving of a warning cannot. The latter necessarily requires the communicating of something to someone." (Id. at p. 1002, 281 Cal.Rptr. 528, 810 P.2d 549.)
3. Determining User Sophistication
The relevant time for determining user sophistication for purposes of this exception to a manufacturer's duty to warn is when the sophisticated user is injured and knew or should have known of the risk. (See Crook v. Kaneb Pipe Line *122 Operating Partnership (8th Cir.2000) 231 F.3d 1098, 1102.) As amicus curiae Product Liability Advisory Counsel observe, the Court of Appeal "correctly understood the defense to eliminate any duty to warn when the expected user population is generally aware of the risk at issue, and correctly rejected the argument that a manufacturer's duty to warn should turn on the individual plaintiffs actual understanding of the risk. Legal duties must be based on objective general predictions of the anticipated user population's knowledge, not case-by-case hindsight examinations of the particular plaintiffs subjective state of mind." As the Court of Appeal pointed out, "[t]he sophisticated user defense will always be employed when a sophisticated user should have, but did not, know of the risk. Otherwise, the issue would be actual knowledge and causation." Therefore, the sophisticated user's knowledge of the risk is measured from the time of the plaintiffs injury, rather than from the date the product was manufactured. The timeline focuses on the general population of sophisticated users and conforms to the defense's purpose to eliminate any duty to warn when the expected user population is generally aware of the risk at issue.
DISPOSITION
For the reasons explained above, we conclude that the sophisticated user defense applies in California. Like the Court of Appeal, we also conclude that the defense should apply in this case to defeat all causes of action for defendant's alleged failure to warn. As the Court of Appeal observed, defendant presented undisputed evidence that HVAC technicians could reasonably be expected to know of the hazard of brazing refrigerant lines. Plaintiffs expert testified that HVAC technicians knew or should have known of the risk of phosgene at the time defendant manufactured the product in 1965. Defendant's expert testified that throughout his 28 years as an HVAC technician, it was "widely known among HVAC technicians" that when R-22 is heated it can decompose into toxic byproducts that include phosgene. Thus, the danger created by exposing refrigerant to high heat and flame was well known within the community of HVAC technicians to which plaintiff belonged.
Plaintiffs claim that he had read the MSDS for R-22 but did not understand that he should avoid heating R-22 is also without merit. The expert testimony at trial showed that the EPA requires HVAC professionals "to understand the decomposition products of refrigerants at high temperatures." In addition, plaintiffs excuse that he had never heard of phosgene gas and that when he smelled the freshcut-grass odor he did not stop or take any precaution, also does not support his claim. As noted above, the study guide informed HVAC technicians that R-22 can form dangerous substances when in contact with high heat, and the MSDS for R-22 informed technicians that the product can decompose and release toxic gases when in contact with heat. The evidence is clear that HVAC technicians knew or should have known of the dangers of R-22 heat exposure.
For all these reasons, we conclude that there is no triable issue of fact regarding applicability of the sophisticated user defense in this case. We therefore affirm the Court of Appeal's judgment.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR,
*123 MORENO, JJ., and LEVY, J.P.T.[*]
NOTES
[1] In July of 2004, California Code of Regulations title 8, section 5194, subdivision (g), was amended in several places. The changes, however added little substance to what was required of employers, and so the current requirements accurately indicate the obligations plaintiff's employers had and the information that plaintiff should have known about the product when he was exposed to it.
[2] In July 2004, California Code of Regulations title 8, section 5194, subdivision (h), was amended. Like those amendments made to subdivision (g), the effects of the amendment on subdivision (h) in this case are minimal.
[3] Plaintiff has settled or dismissed all of his claims against other defendants, except for a Claim against one refrigerant manufacturer, and one supplier of refrigerant. Those parties are not involved in the present appeal.
[4] Plaintiff has asked this court to take judicial notice of several regulations and regulatory interpretations of the federal Hazard Communication Standard by the United States Department of Labor, Occupational Safety and Health Administration, and has included in his request several exhibits detailing the problems that exposure to hazardous chemicals may cause and the labeling requirements for shipped containers that house the chemicals. Defendant does not oppose the request, and we grant it. (Evid.Code, §§ 452, 453.)
[5] The federal court's prediction that this court would adopt the sophisticated user defense on the condition that a plaintiff could negate it by showing that the sophisticated user's misuse of the product was foreseeable is not at issue here, and we do not address it at this time. (See In re Asbestos, supra, 543 F.Supp. at p. 1151.)
[*] Associate Justice, Court of Appeal. Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Fourth Court of Appeals
San Antonio, Texas
September 19, 2016
No. 04-16-00387-CR
Veronica ALEGRIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR5021A
Honorable Ray Olivarri, Judge Presiding
ORDER
Appellant’s court-appointed attorney has filed a brief pursuant to Anders v. California,
368 U.S. 738 (1967), in which he asserts there are no meritorious issues to raise on appeal.
Counsel has informed the appellant of her right to file her own brief and provided appellant with
a form motion for requesting the appellate record. See Kelly v. State, 436 S.W.3d 313, 319-20
(Tex. Crim. App. 2014); Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no
pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). The
State has filed a letter waiving its right to file an appellee’s brief unless the appellant files a pro
se brief.
If the appellant desires to request the appellate record, she must file the motion requesting
the record within ten days from the date of this order. If the appellant desires to file a pro se
brief, she must do so within thirty days from the date of this order. See Bruns, 924 S.W.2d at
177 n.1. If the appellant files a pro se brief, the State may file a responsive brief no later than
thirty days after the date the appellant’s pro se brief is filed in this court. It is further ORDERED
that the motion to withdraw, filed by appellant’s counsel, is HELD IN ABEYANCE pending
further order of the court.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of September, 2016.
___________________________________
Keith E. Hottle
Clerk of Court
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-73,484-02
Ex parte NEAL HAMPTON ROBBINS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 98-06-0075-CR IN THE 410 TH DISTRICT COURT
MONTGOMERY COUNTY
K ELLER, P.J., filed a dissenting opinion in which H ERVEY, J., joined.
The legislature passed Article 11.073 to allow a defendant to obtain habeas relief on the basis
of new scientific evidence.1 In a nutshell, the question before us is whether the statute contemplates
granting relief on the basis of (1) a change in the science, or (2) a change in the opinion held by a
particular expert in the science. Judge Keasler’s position is that the scientific evidence is new only
if there has been a change in the relevant body of scientific knowledge or in the accepted method by
which a particular scientific inquiry is conducted. The Court’s position is that the change can be the
expert’s own testimony, even if that change in testimony is based merely on the expert becoming
more educated in the relevant field of study. I agree with Judge Keasler that the statute contemplates
1
See TEX . CODE CRIM . PROC. art. 11.073.
ROBBINS DISSENT - 2
granting relief only on the basis of a change in the science.
Subsection (b) of the statute creates a claim for relief on the basis of new scientific evidence.2
To obtain relief under Subsection (b), the applicant must show, among other things, that “relevant
scientific evidence is currently available and was not available at the time of the convicted person’s
trial because the evidence was not ascertainable through the exercise of reasonable diligence by the
convicted person before the date of or during the convicted person’s trial.”3 In Subsection (d), the
legislature defines what it means to say that scientific evidence was not ascertainable through the
exercise of reasonable diligence:
(d) In making a finding as to whether relevant scientific evidence was not
ascertainable through the exercise of reasonable diligence on or before a specific
date, the court shall consider whether the scientific knowledge or method on which
the relevant scientific evidence is based has changed since:
(1) the applicable trial date or dates, for a determination made with respect to an
original application; or
(2) the date on which the original application or a previously considered application,
as applicable, was filed, for a determination made with respect to a subsequent
application.4
I agree with Judge Keasler that the phrase “the scientific knowledge or method on which the relevant
scientific evidence is based” refers to general science, not an expert’s particular knowledge or
method of doing things. That is the natural understanding of the words in the sentence, and Judge
Keasler explains in detail why the Court’s contrary construction of that phrase is untenable. So, to
satisfy Subsection (b)’s requirement that “the evidence was not ascertainable through the exercise
2
Id. art. 11.073(b).
3
Id. art. 11.073(b)(1)(A).
4
Id. art. 11.073(d) (emphasis added).
ROBBINS DISSENT - 3
of reasonable diligence by the convicted person before the date of or during the convicted person’s
trial,” the applicant must show that the body of scientific knowledge or the accepted methodology
has changed since the trial.
While I fully agree with the first two sections of Judge Keasler’s opinion, I would analyze
the issue in the third section differently. That section argues that applicant is barred from filing this
application because the science has not changed since his prior application. It is true that, in order
to take advantage of Subsection (c) of Article 11.073, an applicant who files a subsequent application
must show that the body of scientific knowledge or the accepted methodology has changed since his
prior habeas application. Subsection (c) allows a subsequent application when a change in science
occurs after the filing of the prior application.5 But Article 11.073 did not exist when applicant filed
his original application, so Subsection (b) of that article qualifies as a new legal basis under Article
11.07, § 4(a)(1) and (b).6 Consequently, applicant’s claim is authorized by Article 11.07, § 4.
5
Id. art. 11.073(c) (“For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article
11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously
in an original application or in a previously considered application if the claim or issue is based on
relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence
by the convicted person on or before the date on which the original application or a previously
considered application, as applicable, was filed.”).
6
See id. art. 11.07, § 4(a)(1) (“If a subsequent application for a writ of habeas corpus is filed
after final disposition of an initial application challenging the same conviction, a court may not
consider the merits of or grant relief based on the subsequent application unless the application
contains sufficient specific facts establishing that . . . the current claims and issues have not been and
could not have been presented previously in an original application or in a previously considered
application filed under this article because the factual or legal basis for the claim was unavailable
on the date the applicant filed the previous application.”), (b) (“For purposes of Subsection (a)(1),
a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal
basis was not recognized by or could not have been reasonably formulated from a final decision of
the United States Supreme Court, a court of appeals of the United States, or a court of appellate
jurisdiction of this state on or before that date.”).
ROBBINS DISSENT - 4
Nevertheless, in order for applicant to obtain relief, his claim must qualify under Article
11.073, Subsection (b). To so qualify, applicant must show that the science has changed since his
trial. Because he has not done so, his claim does not qualify, and this application should be
dismissed.7
Filed: November 26, 2014
Publish
7
See Ex parte Oranday-Garcia, 410 S.W.3d 865 (Tex. Crim. App. 2013) (applicant must
make out a prima facie case for relief under the new law he identifies to avoid dismissal under
subsequent-application prohibitions).
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785 F.2d 312
Woolseyv.U.S.
85-1226, 85-1296
United States Court of Appeals,Seventh Circuit.
1/17/86
1
N.D.Ill.
AFFIRMED
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950 F.2d 723
In re Shuma (Wayne), Gallo (Amelio), d/b/a Plaza VendingCo., Plaza Vending Family Fun and Games
NOS. 91-3270, 91-3271
United States Court of Appeals,Third Circuit.
NOV 25, 1991
Appeal From: W.D.Pa.,
Ziegler, J.
1
APPEAL DISMISSED.
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