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ACCEPTED
14-15-00293-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/11/2015 3:51:25 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00293-CR
IN THE
COURT OF APPEALS FILED IN
FOR THE 14th COURT OF APPEALS
HOUSTON, TEXAS
FOURTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS
8/11/2015 3:51:25 PM
HOUSTON, TEXAS
CHRISTOPHER A. PRINE
_________________________________________________________________
Clerk
BRANDON MARLO MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
UNOPPOSED MOTION FOR EXTENSION OF TIME
TO FILE BRIEF FOR APPELLANT
To the Honorable Court of Appeals:
Brandon Marlo Miller, moves for an extension of time in which to file his brief, in
accordance with Rule 10.5(b) of the Texas Rules of Appellate Procedure, and in support
of his motion shows as follows:
I.
Appellant was tried by a jury and convicted of murder in cause numbers
12CR1637 in the 406th District Court of Galveston County, Texas on February 25, 2015.
The Appellant was sentenced to 65 years in the Institutional Division of the Texas
Department of Criminal Justice in accordance with the verdict of the jury on February 25,
2105. Appellant filed Notice of Appeal on February 25, 2015.
The current deadline for the filing of the Appellant's brief was due July 31, 2015.
II.
In support of this motion, the appellant would show that the Reporter's Record of
the proceedings in the District Court consists of 14 volumes. The undersigned counsel for
Appellant was appointed to represent him on appeal, and did not try the case, so the
undersigned was unfamiliar with the specific content of the record and has to read it in
careful detail and speak to the attorney who represented the Appellant at the hearing.
The Court Reporter did not file her record with the Galveston County District
Clerk until July 31, 2015.
For these reasons, it appears that the undersigned will not be able to thoroughly
review that record and research all of the colorable issues on appeal raised by the record
in this case, and then prepare and file the Appellant's brief by the current deadline.
III.
No previous requests for extension of time to file the Appellant’s brief have been
made.
IV.
Counsel for the State is not opposed to this motion.
For the reasons stated, Appellant, Brandon Marlo Miller, prays that the Court
grant an extension of time to file the brief for the Appellant through and including
September 15, 2015.
Respectfully submitted,
___/s/ Susan Criss
Susan Criss
Post Office Box 17046
Galveston, Texas 77552
(409) 771 4069
(409)763-1508 (FAX)
State Bar No. 06630475
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing instrument was delivered to the Criminal
District Attorney for Galveston County on the 11th th day of August 10, 2015.
/s/ Susan Criss
________________________________
Susan Criss
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14 F.3d 606
Crutchfield (Larry)v.Pearson (Dorothy G.)
NO. 92-3896United States Court of Appeals,Eighth Circuit.
Apr 05, 1993
1
Appeal From: E.D.Ark.
2
DISMISSED.
3
(The decision of the Court is referenced in a 'Table of Decisions Without Reported Opinions' appearing in the Federal Reporter. The Eighth Circuit has prescribed criteria for publication of opinions and directs that unpublished opinions may not be cited or otherwise used except when the cases are related by virtue of an identity between the parties or the causes of action. Eighth Circuit Rules, Rule 28A(k), 28 U.S.C.A.)
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112 F.3d 514
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of America, Appellee,v.Thomas Robert HUBERS, Appellant.
No. 96-3775.
United States Court of Appeals, Eighth Circuit.
Submitted May 5, 1997.Filed May 7, 1997.
Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
PER CURIAM.
1
Thomas Robert Hubers pleaded guilty to possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841, and the district court1 sentenced him to 210 months imprisonment under the career-offender Guideline, U.S. Sentencing Guidelines Manual § 4B1.1 (1990). We affirmed Hubers's sentence and the subsequent denial of his 28 U.S.C. § 2255 motion. See United States v. Hubers, 938 F.2d 827, 829-30 (8th Cir.) (per curiam), cert. denied, 502 U.S. 961 (1991); Hubers v. United States, 1993 WL 89019 (8th Cir. Mar. 30, 1993) (unpublished per curiam). Hubers then brought this 18 U.S.C. § 3582(c)(2) motion for resentencing, which the district court also denied. Hubers appeals, and we affirm.
2
In support of his section 3582(c)(2) request for resentencing, Hubers argued that one of the state drug convictions underlying his career-offender status was actually a misdemeanor under state law, and would not disqualify him from possessing a firearm under federal law. Section 3582(c)(2) allows a district court to reduce a defendant's prison term if the defendant was sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Because the sentencing range applied to Hubers has not been lowered, we agree with the district court that section 3582(c)(2) is inapplicable here.
3
Accordingly, we affirm.
1
The HONORABLE DONALD D. ALSOP, United States District Judge for the District of Minnesota
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Filed 11/17/14 AG Land Trust v. Marina Coast Water Dist. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
AG LAND TRUST, H039559
(Monterey County
Plaintiff and Respondent, Super. Ct. No. M105019)
v.
MARINA COAST WATER DISTRICT,
Defendant and Appellant.
I. INTRODUCTION
In this CEQA1 action, respondent Ag Land Trust, a nonprofit group interested in
preserving Monterey County farmland, challenged Marina Coast Water District’s
approval of the Regional Desalination Project by filing a petition for a writ of mandate in
the superior court. After a court trial, the trial court granted the first amended petition for
writ of mandate, entered judgment in Ag Land Trust’s favor, and issued a peremptory
writ of mandate directing Marina Coast Water District (Marina Coast) to set aside its
approval of the Regional Desalination Project.
Marina Coast appealed and in this court’s prior decision, Ag Land Trust v. Marina
Coast Water Dist. (Aug. 26, 2013, H038550) [nonpub. opn.] (Ag Land Trust I), the
appeal was determined to be moot. This court also determined that the appropriate
1
California Environmental Quality Act, Public Resources Code section 21000
et seq.
disposition under the circumstances was to reverse the judgment with directions to the
trial court to dismiss the petition for a writ of mandate as moot. (See Paul v. Milk
Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul); Coalition for a Sustainable Future in
Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945 (Coalition for a
Sustainable Future).)
While Marina Coast’s appeal from the judgment was pending, the trial court
granted Ag Land Trust’s motion for private attorney general’s fees pursuant to Code of
Civil Procedure section 1021.5.2 In its February 6, 2013 order, the trial court found that
all of the statutory criteria for an award of attorney’s fees under section 1021.5 had been
met and awarded Ag Land Trust a total of $1,285,510.90 in attorney’s fees.
Marina Coast now appeals the postjudgment award of attorney’s fees on the
primary ground that this court’s reversal of the judgment requires reversal of the
attorney’s fees order. We agree that reversal of the judgment requires reversal of the
attorney’s fees order. However, for reasons that we will explain, we will remand the
matter and direct the trial court to exercise its discretion under the standard stated by the
California Supreme Court in Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
(Graham) for an award of section 1021.5 private attorney general’s fees to a
nonprevailing plaintiff under the catalyst theory.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Ag Land Trust’s Petition for a Writ of Mandate
Ag Land Trust is a self-described “California nonprofit public benefit corporation
created with the intent to preserve Monterey County farmland . . . .”3 In April 2010,
2
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
3
On our own motion, we take judicial notice of our prior opinion in Ag Land
Trust I, supra, H038550. (Evid. Code, § 452, subd. (d)(1).) Some portions of the factual
and procedural background have been taken from our prior opinion.
2
Ag Land Trust filed its first amended petition for a writ of mandate against respondent
Marina Coast. In its petition, Ag Land Trust asserted that Marina Coast had formally
approved the Regional Desalination Project on April 5, 2010, in reliance on the final
environmental impact report (EIR) certified by the California Public Utilities
Commission (PUC) in 2009 and a March 2010 addendum. Ag Land Trust sought
declaratory relief, consisting of a declaration that Marina Coast had a duty to identify or
obtain water rights for the Regional Desalination Project and a declaration that the
Regional Desalination Project would violate the Monterey County Water Resources
Agency Act. Additionally, Ag Land Trust sought a peremptory writ of mandate directing
Marina Coast to set aside its approvals of the Regional Desalination Project and to
prepare a legally adequate EIR in compliance with CEQA.
B. The Trial Court’s Statement of Decision and Judgment
A court trial on Ag Land Trust’s petition for writ of mandate was held on
October 27, 2011. The trial court’s amended statement of decision granting the petition
was filed on February 2, 2012. The court found that (1) the final EIR is deficient because
Marina Coast, not the PUC, was the lead agency under CEQA for the Regional
Desalination Project since Marina Coast was the first to approve the project; (2) the final
EIR is inadequate because it did not include a discussion of the availability of
groundwater for the Regional Desalination Project and assumes that groundwater rights
will be perfected in the future; (3) the trial court had jurisdiction over the matter since the
PUC did not have authority to regulate Marina Coast with respect to the Regional
Desalination Project; and (4) the Water Resources Agency and California American
Water Company (Cal-Am), a corporation regulated by the PUC that was a participant in
the Regional Desalination Project, were not indispensible parties.
The judgment granting the first amended petition for writ of mandate and ordering
issuance of a peremptory writ of mandate was filed on April 17, 2012. The judgment
also included the trial court’s findings, as follows: “The Court FINDS AND
3
DETERMINES that Marina Coast Water District prejudicially abused its discretion and
failed to proceed in the manner required by law in making its approvals of the Regional
Desalination Project on March 16, 2010 and April 5, 2010, by proceeding as a
responsible agency rather than as a lead agency, by failing to properly analyze the
environment impact report as a lead agency under CEQA, and by failing to properly and
adequately identify, discuss, and address the environmental impacts of the project,
including but not limited to water rights, contingency plan, assumption of constant
pumping, exportation of groundwater from the Salinas Valley Groundwater Basin, brine
impacts, impacts on overlying and adjacent properties, and water quality, as required here
for a lead agency under CEQA.” The court reserved jurisdiction over Ag Land Trust’s
claim for an award of private attorney general fees and costs under section 1021.5.
On April 17, 2012, the trial court issued a peremptory writ of mandate directing
Marina Coast to “[v]acate and set aside its March 16, 2010 and April 5, 2010 approvals
of the Regional Desalination Project, and each step approved by [Marina Coast] pursuant
to . . . section 21168.9, subdivision (a). Further action to approve the project beyond
setting aside and vacating these approvals by [Marina Coast] shall not be taken, except in
accordance with the Judgment Granting First Amended Petition for Writ of Mandate
([CEQA]) and Ordering Issuance of Peremptory Writ of Mandate.” The peremptory writ
of mandate also directed Marina Coast to prepare a legally adequate EIR and to otherwise
comply with CEQA in any subsequent action to approve the project.
C. Ag Land Trust I
In June 2012, Marina Coast filed a timely notice of appeal from the judgment.
On our own motion, we took judicial notice (Evid. Code, §§ 459, 452, subd. (c)) of the
July 12, 2012 decision of the PUC (Application of California-American Water Company
(2012) Cal. P.U.C. Dec. No. 12-07-008 [2012 Cal.PUC LEXIS 300], p. *28 (Decision
No. 12-17-008)). In its decision, the PUC found that Cal-Am had withdrawn its support
4
of the project. The PUC also found that the Regional Desalination Project “has no
reasonable prospect of achieving its goals.” (Id. at p. *28.)
Since it appeared that Cal-Am’s withdrawal was potentially fatal to the Regional
Desalination Project, we asked the parties to submit supplemental briefing addressing the
issue of whether the appeal must be dismissed because the PUC’s action had rendered the
appeal moot. In their supplement briefing, the parties agreed that the Regional
Desalination Project would “ ‘not go forward.’ ” (Ag Land Trust I, supra, H038550 at
p. 7.)
In Ag Land Trust I, our prior decision in this case (filed August 26, 2013), this
court determined that the appeal was moot because the Regional Desalination Project
would not be implemented. (See, e.g., Coalition for a Sustainable Future, supra,
198 Cal.App.4th at p. 941.) This court also declined the parties’ invitation to issue an
advisory opinion on the adequacy of the EIR and the other issues raised in the appeal
with respect to the Regional Desalination Project.
Additionally, this court determined that a disposition under the rule of Paul, supra,
62 Cal.2d at pages 134-135, rather than a simple dismissal of the appeal, was appropriate.
“Reversal with directions to the trial court to dismiss is the equivalent of dismissal of the
appeal, but avoids the ambiguity of the latter procedure which does not dispose of a
subsisting trial court judgment in a case wherein the issues are moot.” (Bell v. Board of
Supervisors (1976) 55 Cal.App.3d 629, 637.) Accordingly, this court reversed the
judgment and remanded the matter with directions to the trial court to dismiss the petition
for writ of mandate as moot.
The Ag Land Trust I decision expressed no opinion regarding the pending appeal
of the February 6, 2013 order awarding attorney’s fees to Ag Land Trust. That appeal is
now before us.
5
D. Ag Land Trust’s Motion for Attorney’s Fees
In October 2012, before this court’s decision in Ag Land Trust I was filed on
August 26, 2013, Ag Land Trust filed a motion for an order awarding attorney’s fees
under section 1021.5.4 Ag Land Trust argued that it met the statutory criteria for an
award of private attorney general’s fees because (1) it was undisputed that it was the
successful party in the CEQA action; (2) its CEQA action had enforced an important
right affecting the public interest; (3) a significant benefit had been conferred upon the
general public or a large class of persons; and (4) the necessity and financial burden of
private enforcement made an award of attorney’s fees appropriate.
In support of its argument, Ag Land Trust asserted that its CEQA action had
enforced an important right affecting the public interest because the action ensured that
the Regional Desalination Project would not go forward without evaluating the project’s
environment impacts, and also facilitated public discourse about a controversial project
and the future of water supply on the Monterey Peninsula. The CEQA action also
conferred a significant benefit on the general public or a large class of persons, according
to Ag Land Trust, by preserving the public review process for the next proposed water
project. Ag Land Trust further asserted that an award of attorney’s fees was appropriate
because no public agency had brought a CEQA challenge to the Regional Desalination
Project and therefore private enforcement was necessary. In seeking an award of
attorney’s fees, Ag Land Trust sought to be compensated for the financial burden placed
upon it as a nonprofit corporation that had litigated the CEQA action for several years.
4
Section 1021.5 provides in pertinent part: “Upon motion, a court may award
attorneys’ fees to a successful party against one or more opposing parties in any action
which has resulted in the enforcement of an important right affecting the public interest
if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on
the general public or a large class of persons, (b) the necessity and financial burden of
private enforcement, or of enforcement by one public entity against another public entity,
are such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.”
6
For these reasons, Ag Land Trust requested an award of reasonable attorney’s fees
in the lodestar5 amount of $917,094 plus an enhancement multiplier of 1.25 to 1.50 and
attorney’s fees on the fee motion. The request for attorney’s fees was supported with a
summary of the lodestar hours for each of Ag Land Trust’s attorneys, as well as their
declarations, the declaration of the president of Ag Land Trust’s board of directors, and
the expert declarations of two attorneys who were experienced in CEQA litigation.
E. Marina Coast’s Opposition
In its opposition to Ag Land Trust’s attorney’s fees motion, Marina Coast disputed
Ag Land Trust’s assertions that it had satisfied the statutory criteria for an award of
private attorney general’s fees under section 1021.5. According to Marina Coast,
Ag Land Trust’s CEQA action did not confer a significant benefit on the community at
large because, rather than ensuring compliance with CEQA, the action served to delay
implementation of a solution to Cal-Am’s illegal withdrawals of water from the Carmel
River. Marina Coast also argued that the action did not facilitate either public discourse
or the integrity of environmental planning, since the Regional Desalination Project had
been the subject of “[h]undreds, if not thousands” of public comments on the draft EIR.
Marina Coast challenged the amount of the attorney’s fees claimed by Ag Land
Trust on the grounds that the lodestar hours and billing rates were unreasonable,
participation in PUC proceedings was not compensable under section 1021.5,
unnecessary and unsupported charges were included, and an enhancement multiplier was
not justified.
F. Attorney’s Fees Order
The trial court granted Ag Land Trust’s attorney’s fees motion in its February 6,
2013 order after hearing and awarded attorney’s fees in the total amount of
5
The California Supreme Court has defined the “lodestar” as “the number of
hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group,
Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
7
$1,285,510.90. The court found that Ag Land Trust met the statutory criteria for an
award of attorney’s fees under section 1021.5 because Ag Land Trust was the prevailing
party; the prosecution of the CEQA action had conferred a significant benefit on the
public and a large class of persons; and the necessity and financial burden of private
enforcement made the award appropriate.
In calculating the amount of the attorney’s fees award, the trial court adopted the
lodestar method of determining attorney’s fees, found the hourly rates and hours claimed
by Ag Land Trust’s attorneys to be reasonable, and also awarded attorney’s fees on the
fee motion. The court exercised its discretion to award an enhancement multiplier of
1.35 due to the novelty and complexity of the issues involved and Ag Land Trust’s
“excellent job” in presenting the issues, and because some of Ag Land Trust’s attorney’s
fees were contingent.
The trial court rejected Marina Coast’s contention that attorney’s fees for work in
other forums regarding the Regional Desalination Project were not compensable. The
court also rejected Marina Coast’s contention that the attorney’s fees award should be
eliminated or reduced because Marina Coast is a public agency, stating: “This Court is
entitled to conclude that the elected board of Marina Coast Water District must have
approved the hard-fought litigation strategy, which included not just the CEQA petition,
but the demurrer, the summary judgment, and the multiple writs. The Court assumes that
the Marina Coast board approved that kind of litigation strategy, and by approving that
kind of litigation strategy, becomes responsible for not only paying its own attorney, but
for the kind of response that was evoked.”
III. DISCUSSION
Marina Coast filed a timely notice of appeal from the February 6, 2013 order
awarding attorney’s fees to Ag Land Trust. An appeal from a postjudgment attorney’s
fees order is separately appealable as postjudgment order. (See § 904.1, subd. (a)(2);
8
Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852,
869-870.)6
A. The Parties’ Contentions
On appeal, Marina Coast’s primary argument is that the reversal of the judgment
in Ag Land Trust I means that no judgment exists that could support an award of
attorney’s fees. In the absence of a judgment, Marina Coast insists that Ag Land Trust is
no longer a successful party entitled to an award of private attorney general fees under
section 1021.5.
Alternatively, Marina Coast argues that in the event this court finds that reversal
of the judgment does not necessitate reversal of the attorney’s fees award, this court
must address the merits of Marina Coast’s prior challenge to the merits of the judgment.
According to Marina Coast, the trial court lacked jurisdiction to entertain Ag Land
Trust’s writ petition because it constituted a collateral attack on a decision of the PUC;
the trial court lacked jurisdiction on various other grounds; and attorney’s fees cannot be
awarded where, as here, the underlying action lacked merit.
In response, Ag Land Trust acknowledges that the judgment was reversed on
mootness grounds. Relying on the California Supreme Court’s decision in Press v. Lucky
Stores, Inc. (1983) 34 Cal.3d 311 (Press) and Maria P. v. Riles (1987) 43 Cal.3d 1281
(Maria P.), Ag Land Trust argues that it is well established a plaintiff may be awarded
attorney’s fees under section 1021.5 even where the action has become moot.
Ag Land Trust further argues that substantial evidence supports the award of
private attorney general’s fees under section 1021.5. According to Ag Land Trust, it is
the successful or prevailing party within the meaning of section 1021.5 because the
record shows that its action was a substantial factor in the demise of the Regional
6
Marina Coast’s motion for expedited treatment of its appeal and calendar
preference was deferred for consideration with the merits of this appeal. Since we have
held oral argument, we deny the motion as moot.
9
Desalination Project, and also because the action had a significant public impact with
regard to water rights, environmental impacts, and the EIR. Alternatively, under the
catalyst theory stated in Graham, supra, 34 Cal.4th at pages 565-566, Ag Land Trust
argues that its action achieved the results sought in the litigation: “to stop Marina Coast
from building the [Regional Desalination Project] in reliance on a defective EIR.”
Finally, Ag Land Trust contends that Marina Coast’s arguments on appeal with
regard to the trial court’s jurisdiction should be rejected because the jurisdictional
arguments lack substantive merit and this court determined in Ag Land Trust I, supra,
H038550 that the appeal on the merits of the judgment was moot.
In reply, Marina Coast argues that Ag Land Trust has not met the three-part test
for an award of attorney’s fees under the catalyst theory stated in Graham, supra, 34
Cal.4th 553. Marina Coast explains that (1) Ag Land Trust is not the prevailing party
because its action was not a catalyst in causing Marina Coast to change its position on the
Regional Desalination Project; (2) Ag Land Trust’s action lacked merit; and (3) Ag Land
Trust did not make a reasonable pre-litigation effort to settle the case.
After briefing was completed, Ag Land Trust moved for leave to file a
supplemental letter brief disputing Marina Coast’s contention, made for the first time in
its reply brief, that Ag Land Trust had failed to make a reasonable pre-litigation effort to
settle the case. We granted the motion and have filed Ag Land Trust’s supplemental
letter brief.
Before addressing the parties’ contentions on appeal, we provide an overview of
the standard for an award of section 1021.5 private attorney general’s fees to a
nonprevailing plaintiff under the catalyst theory.
B. The Catalyst Theory
In several decisions, the California Supreme Court has clarified the award of
attorney’s fees under section 1021.5, the private attorney general statute. “Section 1021.5
authorizes a court to ‘award attorneys’ fees to a successful party . . . in any action which
10
has resulted in the enforcement of an important right affecting the public interest . . . .’
The Legislature enacted the provision to codify the private attorney general doctrine
previously developed by the courts. [Citations.] The doctrine rests on the recognition
that privately initiated lawsuits, while often essential to effectuate important public
policies, will as a practical matter frequently be infeasible without some mechanism
authorizing courts to award fees. [Citations.] Accordingly, ‘ “the fundamental objective
of the doctrine is to encourage suits enforcing important public policies by providing
substantial attorney fees to successful litigants in such cases.” ’ [Citations.]” (Vasquez v.
State of California (2008) 45 Cal.4th 243, 250 (Vasquez).)
“A court may award attorney fees under section 1021.5 only if the statute’s
requirements are satisfied. Thus, a court may award fees only to ‘a successful party’ and
only if the action has ‘resulted in the enforcement of an important right affecting the
public interest . . . .’ [Citation.] Three additional conditions must also exist: ‘(a) a
significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general
public or a large class of persons, (b) the necessity and financial burden of private
enforcement, or of enforcement by one public entity against another public entity, are
such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.’ [Citation.]” (Vasquez, supra, 45 Cal.4th at
pp. 250-251.)
In Graham, our Supreme Court considered the question of “whether
section 1021.5 permitted an award of attorney fees, . . . ‘even when litigation does not
result in a judicial resolution if the defendant changes its behavior substantially because
of, and in the manner sought by, the litigation.’ [Citation.]” (Vasquez, supra, 45 Cal.4th
at p. 253, quoting Graham, supra, 34 Cal.4th at p. 560.) The Graham court answered the
question in the affirmative: “Under the catalyst theory, attorney fees may be awarded
even when litigation does not result in a judicial resolution if the defendant changes its
behavior substantially because of, and in the manner sought by, the litigation. . . . In
11
order to be eligible for attorney fees under section 1021.5, a plaintiff must not only be a
catalyst to defendant’s changed behavior, but the lawsuit must have some merit, . . . and
the plaintiff must have engaged in a reasonable attempt to settle its dispute with the
defendant prior to litigation.” (Graham, supra, at pp. 560-561.)
In the companion case of Tipton-Whittingham v. City of Los Angeles (2004) 34
Cal.4th 604 (Tipton-Whittingham) the Supreme Court further stated: “California law
continues to recognize the catalyst theory . . . . In order to obtain attorney fees without
such a judicially recognized change in the legal relationship between the parties, a
plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to
provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic
effect by threat of victory, not by dint of nuisance and threat of expense, as elaborated in
Graham; and (3) that the plaintiffs reasonably attempted to settle the litigation prior to
filing the lawsuit.” (Id. at p. 608.)
Thus, an attorney’s fee award under section 1021.5 “may be justified even when
plaintiff’s legal action does not result in a favorable final judgment. [Citations.]”
(Maria P., supra, 43 Cal.3d at pp. 1290-1291; see also Press, supra, 34 Cal.3d at
pp. 320-321 [plaintiffs awarded fees under § 1021.5 although action became moot
because they achieved the relief sought through preliminary injunction].)
C. Analysis
At the outset, we agree with Marina Coast that the disposition in the August 26,
2013 decision in Ag Land Trust I, which reversed the judgment and directed the trial
court to dismiss Ag Land Trust’s writ petition as moot, compels reversal of the
February 6, 2013 postjudgment order awarding Ag Land Trust attorney’s fees in the total
amount of $1,285,510.90. (See California Grocers Assn. v. Bank of America (1994) 22
Cal.App.4th 205, 221 [order awarding section 1021.5 attorney’s fees “ ‘falls with a
reversal of the judgment on which it is based.’ [Citation.]”.)
12
However, reversal of the February 6, 2013 attorney’s fees order does not end our
analysis. In Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221
Cal.App.3d 1377, this court determined that where, as here, the judgment is reversed and
the matter remanded with directions to dismiss the action as moot, the plaintiff may seek
attorney’s fees under section 1021.5 by showing “on remand that the action,
notwithstanding its dismissal for mootness, has ‘resulted in the enforcement of an
important right affecting the public interest.’ [Citation.]” (Id. at p. 1392, fn. 3.)
We acknowledge the parties’ arguments on appeal regarding Ag Land Trust’s
entitlement to section 1021.5 attorney’s fees under the catalyst theory. We decline the
invitation to decide the issue in this appeal, since the trial court usually decides whether a
party is entitled to an award of attorney’s fees under section 1021.5 in the first instance.
(See Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 494.) “In
general, whether plaintiffs have met the statutory requirements for an award of fees
pursuant to section 1021.5 is a matter for the discretion of the trial court. [Citation.]”
(Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 845.)
In exercising its discretion, the trial court may make factual findings. “When a
lawsuit has been mooted by a defendant’s change in conduct, some development of the
factual record is required in order to prevail on a catalyst theory. At the very least, a
plaintiff must establish ‘ “the precise factual/legal condition that [it] sought to change or
affect” ’ as a prerequisite for establishing the catalytic effect of its lawsuit. [Citation].”
(Graham, supra, 34 Cal.4th at p. 576.) Additionally, “[t]he trial court may review this
factual background not only to determine the lawsuit’s catalytic effect but also its
merits.” (Ibid.)
Accordingly, under the first prong of the three-part test announced in Graham and
restated in Tipton-Whittingham for application of the catalyst theory, the trial court
determines whether “the lawsuit was a catalyst motivating the defendants to provide the
primary relief sought.” (Tipton-Whittingham, supra, 34 Cal.4th at p. 608; see also
13
Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353
[award of attorney’s fees under section 1021.5 not proper where no causal connection
between plaintiff’s action and relief obtained].) “ ‘The critical fact is the impact of the
action, not the manner of its resolution.’ [Citation.] . . . [¶] If plaintiff’s lawsuit
‘induced’ defendant’s response or was a ‘material factor’ or ‘contributed in a significant
way’ to the result achieved then plaintiff has shown the necessary causal connection.
[Citations.] The question of whether plaintiff’s action is causally linked to achieving the
relief obtained is a question of fact. [Citation.]” (Californians for Responsible Toxics
Management v. Kizer (1989) 211 Cal.App.3d 961, 967 (italics added); see also Sagaser v.
McCarthy (1986) 176 Cal.App.3d 288, 315 [whether plaintiffs’ efforts resulted in the
enforcement of an important right affecting the public interest is a factual issue].)
The second prong of the catalyst theory’s three-part test requires the trial court to
determine whether “the lawsuit had merit and achieved its catalytic effect by threat of
victory, not by dint of nuisance and threat of expense, as elaborated in Graham.”
(Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) In Graham, the Supreme Court
instructed that “[t]he trial court must determine that the lawsuit is not ‘frivolous,
unreasonable or groundless’ [citation], in other words that its result was achieved ‘by
threat of victory, not by dint of nuisance and threat of expense.’ [Citation.] The
determination the trial court must make is not unlike the determination it makes when
asked to issue a preliminary injunction, i.e., not a final decision on the merits but a
determination at a minimum that ‘ “the questions of law or fact are grave and difficult.” ’
[Citations.]” (Graham, supra, 34 Cal.4th at pp. 575-576.)
The third prong of the catalyst theory’s three-part test—whether “the plaintiffs
reasonably attempted to settle the litigation prior to filing the lawsuit”—may also present
a factual question. (Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) “[S]ettlement
efforts (or their absence) are relevant in every case to show that ‘the necessity and
financial burden of private enforcement . . . are such as to make the award
14
appropriate . . . .’ [Citation.] In assessing such information in a particular case to
determine whether private enforcement was sufficiently necessary to justify an award of
fees, the trial court exercises its equitable discretion in light of all the relevant
circumstances.” (Vasquez, supra, 45 Cal.4th at pp. 258-259, fn. omitted.) “Lengthy
prelitigation negotiations are not required, nor is it necessary that the settlement demand
be made by counsel, but a plaintiff must at least notify the defendant of its grievances and
proposed remedies and give the defendant the opportunity to meet its demands within a
reasonable time. [Citations.] What constitutes a ‘reasonable’ time will depend on the
context.” (Graham, supra, 34 Cal.4th at p. 577.)
In the present case, the trial court ruled on Ag Land Trust’s motion for an award of
private attorney general fees under section 1021.5 prior to this court’s reversal of the
judgment and remand for dismissal of the action. The trial court therefore did not
consider whether Ag Land Trust, as the nonprevailing party, was entitled to an award of
section 1021.5 attorney’s fees under the catalyst theory.
As we have discussed, the trial court usually determines entitlement to an award
of section 1021.5 attorney’s fees under the catalyst theory in the first instance.
Additionally, since application of the three-part test stated in Graham and Tipton-
Whittingham may involve factual determinations, we conclude that a remand to the trial
court is appropriate. “ ‘[I]t has long been the general rule . . . that “. . . the province of
the trial court to decide questions of fact and of the appellate court to decide questions of
law . . . .” [Citation.] The rule promotes the orderly settling of factual questions and . . .
provides a meaning record for review . . . .’ ” (California Farm Bureau Federation v.
State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442.)
We will therefore reverse the February 6, 2013 attorney’s fees order and remand
the matter for the trial court, upon motion by Ag Land Trust, to exercise its discretion
under the standard stated by the California Supreme Court in Graham, supra, 34 Cal.4th
553 for an award of section 1021.5 private attorney general’s fees under the catalyst
15
theory. Having reached this conclusion, we need not address Marina Coast’s challenge to
the substantive merits of Ag Land Trust’s action on jurisdictional and other grounds,
since the merits of the action is a factor in the three-part test for application of the catalyst
theory. (See Tipton-Whittingham, supra, 34 Cal.4th at p. 608.)
IV. DISPOSITION
The February 6, 2013 order after hearing awarding attorney’s fees under Code of
Civil Procedure section 1021.5 is reversed, and the matter is remanded to the trial court,
upon motion by Ag Land Trust, to exercise its discretion under the standard stated by the
California Supreme Court in Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
for an award of Code of Civil Procedure section 1021.5 attorney’s fees under the catalyst
theory. The parties shall bear their own costs on appeal.
16
___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
| {
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IN THE COURT OF APPEALS OF IOWA
No. 15-1697
Filed October 26, 2016
IN THE INTEREST OF A.P.
Minor child,
A.P., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Karen Kaufman
Salic, District Associate Judge.
A minor child appeals his delinquency adjudication, arguing his speedy-
adjudication rights were violated, the trial court erred in ruling against his
affirmative defense of coercion, there was insufficient evidence, and his
prosecution violated the Equal Protection Clause. AFFIRMED.
Mark A. Milder, of Mark A. Milder Law Firm, Waverly, for appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, (until her
withdrawal), Assistant Attorney General, for appellee State.
Considered by Potterfield, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
POTTERFIELD, Presiding Judge.
I. Background Facts and Proceedings
In July 2013, the Charles City Police Department received a report of
alleged sexual abuse. Police officers met with the complaining witness and her
parents and were told A.P. had sexual intercourse with their minor child on March
28, 2013. The complaining witness described the incident as A.P. having placed
his penis into her vagina for between two to five minutes. The complaining
witness’s parents also gave officers a condom they collected from the location of
the incident; however, later testing on the condom returned as negative for the
DNA of A.P. or the complaining witness.
Officers interviewed A.P. in September 2013. A.P. admitted to having sex
with the complaining witness, but he disputed when it occurred. A.P. maintained
the incident occurred on October 8, 2012, shortly before his fourteenth birthday.
The complaining witness stated that she remembered the incident
occurring on March 28, 2013, because she wrote the date down in her diary, and
it was also the day before an important family event. The complaining witness
disposed of the diary, and no one apparently saw it except for the complaining
witness. A.P., on the other hand, said he remembered it being October 8, 2012,
because it was only a few days before his fourteenth birthday, it was during the
fall season, he had been repairing a vehicle with his father and they had
memorialized that date on the vehicle, and because the day stayed in his
memory since it was his first sexual encounter. Under either alleged date, the
complaining witness was twelve years old; A.P. was thirteen or fourteen years
old.
3
The complaining witness wrote poems and letters to A.P. and admitted to
having a “crush” on him. A.P. asserted, and the complaining witness did not
deny, some of the poems and letters were written prior to the sexual incident
while some were written afterward.
The complaining witness alleges A.P. walked her home one day and
forced her to have sex with him in a shed off of a trail. A.P. now alleges the
complaining witness pressured him into having sex with her and threatened him
that if he refused her advances, she would report that he raped her. During the
police investigation, A.P. did not tell officers the complaining witness threatened
him.
Following the investigation, on October 28, 2013, a petition alleging A.P.
had committed the delinquent act of sexual abuse in the third degree was filed.
A consent decree was entered into on November 21, 2013, which set forth terms
and conditions for A.P.1
A.P. failed to abide by the terms and conditions of the consent decree,
and a motion to revoke the consent decree was filed on July 3, 2014. The
juvenile court revoked the consent decree on November 20, 2014, and entered
the first of two orders adjudicating A.P. delinquent on the third-degree-sexual-
abuse charge on the same day. In that 2014 order, the court found A.P. “stated
1
The court stated at the August 26, 2015 adjudicatory hearing, “[t]he court at the time of
revocation was under the belief, as is the court’s practice with consent decrees, that the
child had made an admission with respect to the delinquent act as part of the granting of
the consent decree. The transcript of that proceeding indicates that was not done, which
is unusual, but the failure for that admission was not formally addressed with the court
until [defense counsel’s] motion in July.”
4
a desire to enter a plea of guilty, and engaged in a colloquy with the court.”
However, apparently neither the colloquy nor the guilty plea took place.2
The court scheduled a disposition hearing for February 12, 2015;
however, that hearing had to be continued as A.P. absconded from the shelter
where he was required to stay. After A.P. was located in June 2015, the court
rescheduled the disposition hearing for July 23, 2015.
On July 10, 2015, A.P. filed a request for an adjudicatory hearing, arguing
the first adjudicatory order did not contain any admissions or factual findings
concerning his guilt. The adjudicatory hearing was scheduled for August 26,
2015. However, on August 20, A.P. filed a motion to dismiss the petition on
grounds of violation of speedy adjudication, which the court denied. At the
August 26 adjudicatory hearing evidence was taken, including A.P.’s testimony
regarding his coercion defense. The court issued the second adjudicatory order
after the hearing, again adjudicating A.P. delinquent on the third-degree-sexual-
abuse charge. At the September 24, 2015 disposition hearing, A.P. was ordered
into a group home.
A.P. filed a notice of appeal on October 10, 2015.
II. Standard of Review
Generally, we review delinquency proceedings de novo to determine
whether the State proved beyond a reasonable doubt the child committed the
delinquent act. See In re A.K., 825 N.W.2d 46, 49 (Iowa 2013). Although we are
not bound by the juvenile court’s factual findings, we give them weight, especially
those concerning witness credibility. Id. “The primary goal of juvenile
2
The record before us does not include a transcript of the November 20, 2014 hearing.
5
proceedings is to further the best interest of the child—not to punish but instead
to help and educate the child.” Id. at 51.
III. Discussion
A.P. raises four issues on direct appeal. First, he claims the juvenile court
abused its discretion by failing to dismiss the delinquency petition on speedy-
adjudication grounds. Second, he contends the juvenile court erred when it
denied A.P.’s affirmative defense. Third, he claims there is insufficient evidence
to support the juvenile court’s adjudication. Fourth, he avers he was denied
equal protection by being charged and adjudicated delinquent for a sex act when
the complaining witness was not also charged and adjudicated.
A. Motion to Dismiss on Speedy-Adjudication Grounds
A.P. argues the juvenile court abused its discretion when it failed to
dismiss the delinquency petition on the basis that A.P. was denied his right to a
speedy adjudicatory hearing.
“While our review of delinquency proceedings is generally de novo, we will
review this issue for an abuse of discretion.” State v. Miller, 637 N.W.2d 201,
204 (Iowa 2001).
“Fundamental fairness requires that juveniles have the right to speedy
trial.” In re C.T.F., 316 N.W.2d 865, 868 (Iowa 1982). “It is the public policy of
the state of Iowa that proceedings involving delinquency or child in need of
assistance be concluded at the earliest possible time consistent with a fair
hearing to all parties.” Iowa Ct. R. 8.7.
6
Iowa Court rule 8.8 provides, in part:
If a child against whom a delinquency petition has been filed
has not waived the right to a speedy adjudicatory hearing, the
hearing must be held within sixty days after the petition is filed or
the court shall order the petition dismissed unless good cause to
the contrary is shown.
(1) Entry of a consent decree shall be deemed a waiver of
the child’s right to a speedy hearing.
Although the consent decree here was entered in the absence of any
admissions by A.P., the rule is clear that the entry of the consent decree
operates as a waiver of the right to speedy adjudicatory hearing. Our record
demonstrates A.P. requested entry of the consent decree. The parties agree the
entry of the consent decree operates as a waiver of A.P.’s right to speedy
adjudication.
A failure to comply with the terms of a consent decree can result in the
court treating the juvenile as though no consent decree had ever been entered.
See Iowa Code § 232.46(5) (2013). A.P. failed to comply, and on November 20,
2014, the juvenile court revoked the consent order and entered its first
adjudicatory order. A dispositional hearing was scheduled for January 29, 2015.
In the interim, A.P. was ordered to a shelter pending placement in a permanent
residential treatment facility after the court found his remaining in his parents’
home was “contrary to the child’s welfare.” On December 18, 2014, A.P. ran
away from the shelter. After nearly six months on the lam, A.P. was found and
detained.
A.P. argues because rule 8.8 is silent with regard to the right to a speedy
adjudication once the consent decree is revoked, the sixty-day window for a
speedy adjudication restarted on November 20, when the court revoked the
7
consent decree. Sixty days after that order would be January 2015, while A.P.
was on run from the shelter. A.P.’s request for an adjudicatory hearing was
made almost seven months later, when he was relocated after absconding from
his shelter placement.
The court denied A.P.’s motion to dismiss, explaining that rule 8.8 is silent
as to the “type of event that would retrigger any right to speedy adjudication after
the grant of a consent decree.” The court further stated that A.P.’s running away
from the shelter constituted good cause for delay in the adjudicatory hearing. On
appeal, A.P. argues the State did not show good cause.
In ruling on this, the juvenile court found:
It should be noted that the child ran away from the shelter in
December 2014 and was absent for over six months following the
revocation of the consent decree. There was no re-demand of
speedy adjudicatory hearing, and apparently under rule or statute,
no such mechanism to do so. Nonetheless the court has
proceeded with setting this hearing with as much urgency as
possible, given the other collateral issues of this case since the
issue of lack of admission by the child being brought before the
court on July 10, including the child’s absence, the parents’
incarceration, and availability of the counsel for a hearing.3
Without deciding whether the clock began to run again after the consent
decree was revoked, we find good cause existed for delaying the adjudicatory
hearing beyond the sixty days. See In re N.V.N., No. 05-0473, 2005 WL
3299269, at *1-2 (Iowa Ct. App. Dec. 7, 2005) (finding good cause for delay in a
juvenile’s speedy adjudication); see also State v. Treptow, No. 15-1357, 2016
WL 3275930, at *3 (Iowa Ct. App. June 15, 2016) (holding defendant absconding
3
In addition to this juvenile proceeding, A.P. was subject to a child-in-need-of-assistance
proceeding, and his parents were incarcerated for court-order violations related to this
proceeding. There is also an indication counsel had scheduling issues, though the
record is unclear as to which counsel the court was referring.
8
was good cause for delay). We find the juvenile court acted within the range of
its discretion.
We affirm the juvenile court’s denial of A.P.’s motion to dismiss.
B. Denial of Coercion Defense
A.P. next contends the juvenile court erred when it found A.P. could not
rely on the affirmative defense of coercion and further when it refused to admit
evidence relevant to the coercion defense. The record reveals that A.P. asserted
his defense and supported it in testimony as an offer of proof, but the court found
his testimony unpersuasive. While the record does not show whether the court
admitted the offer of proof, it ruled on the issue in its adjudicatory order, and we
review the issue as it appears in the record.
Our review is de novo; however, we review admissibility-of-the-evidence
issues for an abuse of discretion. See State v. Rojas, 524 N.W.2d 659, 662
(Iowa 1994). An abuse of discretion means on grounds or for reasons clearly
untenable or unreasonable. See State v. Loyd, 530 N.W.2d 708, 713 (Iowa
1995).
In defending himself against the charges, A.P. relied on the coercion
defense found in Iowa Code section 704.10, which provides:
No act, other than an act by which one intentionally or
recklessly causes physical injury to another, is a public offense if
the person acting is compelled to do so by another’s threat or
menace of serious injury, provided that the person reasonably
believes that such injury is imminent and can be averted by the
person doing such an act.
9
A.P. bases this defense upon the allegation that he only had sex with the
complaining witness because the complaining witness threatened that if he did
not do so, she would accuse him of raping her.
To establish the coercion defense, A.P. must present proof to generate a
fact question on each of the following elements:
1. the defendant was under an unlawful and present, imminent,
and impending threat of such nature as to induce a well-
grounded apprehension of death or serious bodily injury;
2. the defendant had not recklessly or negligently placed himself in
a situation in which it was probable that he would be forced to
commit a criminal act;
3. the defendant had no reasonable, legal alternative to violating
the law; and
4. that a direct causal relationship may be reasonably anticipated
between the commission of the criminal act and the avoidance
of the threatened harm.
State v. Walker, 671 N.W.2d 30, 35 (Iowa Ct. App. 2003) (quoting State v.
Jankowski, 194 F.3d 878, 883 (8th Cir. 1999)).
At the August 26, 2015 adjudicatory hearing, the court received testimony
relating to A.P.’s coercion defense. The State objected, but the court considered
the testimony as an offer of proof. However, in its order the juvenile court found
A.P.’s defense was not persuasive, based upon credibility findings including
A.P.’s failure to tell the investigators about the alleged coercion when he was first
interviewed. Specifically, the court held, “Based on the credibility factors . . . the
court does not find that such threats were made by [the complaining witness].
Further, even if they had been, threats to make an allegation of a crime do not
constitute a threat or menace of serious bodily injury.” 4
4
Serious injury is defined in Iowa Code section 702.18 as a disabling mental illness;
bodily injury which creates a substantial risk of death, causes serious permanent
10
A.P. has asked this court to interpret section 702.18 and expand the
definition of “threat or menace of serious bodily injury” to include injuries to a
person’s reputation and criminal background and the accompanying
consequences. However, we are bound by the plain meaning of the words and
legislature’s intent. See McGill v. Fish, 790 N.W.2d 113, 118 (Iowa 2010)
(holding “we do not search for legislative intent beyond the express language of a
statute when that language is plain and the meaning is clear”). “[W]ords used in
a statute have their ordinary and commonly understood meaning,” and we are
not at liberty to interpret them otherwise. See id. at 119. Thus, we must decline
A.P.’s request to expand section 702.18.
We do not find the trial court abused its discretion, and we affirm on this
issue.
C. Sufficiency of the Evidence for Third-Degree Sexual Abuse
A.P. avers the facts do not support a finding he committed third-degree
sexual abuse. Under Iowa Code section 709.4(2)(b), for third-degree sexual
abuse the State needs to prove beyond a reasonable doubt A.P. performed a sex
act with a person, not his spouse, who was either twelve or thirteen years of age
at the time of the incident. A.P. maintains the State did not produce sufficient
evidence and argues the juvenile court erred when it adjudicated him.
A.P.’s argument rests upon the fact A.P. was either thirteen or fourteen
years old at the time of the incident whereas the complaining witness was twelve.
disfigurement or causes protracted loss or impairment of the function of any bodily
member or organ; and any injury to a child that requires surgical repair and necessitates
the administration of general anesthesia. It includes but is not limited to skull fractures,
rib fractures, and metaphysical fractures of the long bones of children under the age of
four years.
11
A.P. frames the issue as whether a consensual sex act between a person aged
thirteen or fourteen and a person aged twelve is a public offense. A.P.
emphasizes the dispute as to the date the incident occurred as it affects his age.
The State resists A.P.’s contention that the age issue mattered, as it avers
section 709.4(2)(b) is a strict-liability offense. We agree. See State v. Tague,
310 N.W.2d 209, 211 (Iowa 1981) (stating “statutes regarding sex offenses are
common examples of employment of strict liability intended to protect the public
welfare”).
The State further argues the only crucial age to be considered under
section 709.4(2)(b) is that of the complaining witness. The State contends A.P.’s
age at the time of the offense is irrelevant and has no bearing on whether he
could be adjudicated delinquent. We reject A.P.’s argument the evidence failed
to establish his age—not a material element of the crime charged. We agree
with the juvenile court’s finding as to the date of the offense and that A.P. was
fourteen on that date.
We find sufficient evidence to support the adjudication, and we affirm.
D. Denial of Equal Protection
Finally, A.P. argues section 709.4(2)(b) violates the Equal Protection
Clause either on its face or as applied because he was the only person charged
with the offense and not the female complaining witness.
Issues must be presented to and passed upon by the juvenile court before
they can be raised on appeal. See In re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.
App. 1990). In closing argument A.P. raised his argument that the complaining
witness should also have been charged, and the juvenile court rejected the
12
argument in its adjudicatory order, giving deference to the prosecutor’s
discretion. A.P. did not raise a constitutional challenge in the juvenile court and
has failed to preserve error on this issue. We decline to consider whether the
prosecution of A.P. violated the Equal Protection Clauses of the Iowa or United
States Constitutions.
Based upon the foregoing, we affirm the juvenile court.
AFFIRMED.
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12-4524-bk
DelGreco v. DLA Piper
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
25th day of September, two thousand thirteen.
Present:
ROBERT A. KATZMANN,
Chief Judge,
DENNIS JACOBS,
ROSEMARY S. POOLER,
Circuit Judges.
________________________________________________
IN RE: JOSEPH DELGRECO & COMPANY, INC.,
Debtor.
________________________________________________
JOSEPH DELGRECO & COMPANY, INC.,
Plaintiff-Appellant,
v. No. 12-4524-bk
DLA PIPER L.L.P. (US),
Defendant-Appellee.
_______________________________________________
For Plaintiff-Appellant: HARTLEY TODD BERNSTEIN, Bernstein Cherney LLP, New
York, NY
For Defendant-Appellee: JAMES P. ULWICK, Kramon & Graham, P.A., Baltimore, MD
(Jean E. Lewis, Kramon & Graham, P.A., Jeffrey Schreiber,
Howard Davis, Meister Seelig & Fein LLP, New York, NY, on
the brief)
Appeal from the United States District Court for the Southern District of New York
(Engelmayer, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-Appellant Joseph DelGreco & Co. (“JDG”) appeals from a judgment entered on
October 2, 2012 by the United States District Court for the Southern District of New York
(Engelmayer, J.). That judgment enforced a Memorandum and Order dated October 1, 2012,
which granted the motion of Defendant-Appellee DLA Piper L.L.P. (US) (“DLA Piper”) for
summary judgment on all of JDG’s claims for legal malpractice. See Joseph DelGreco & Co. v.
DLA Piper L.L.P. (U.S.), 899 F. Supp. 2d 268 (S.D.N.Y. 2012). On appeal, JDG argues that a
reasonable jury could have concluded that DLA Piper’s malpractice caused losses that JDG
suffered, that the district court erred by requiring JDG to support certain claims with expert
testimony, and that the district court ignored JDG’s claim that DLA Piper committed malpractice
by representing JDG despite conflicts of interest. We assume the parties’ familiarity with the
relevant facts, the procedural history, and the issues presented for review.
“We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the non-moving party and drawing all reasonable
inferences in its favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). “We will
2
affirm the judgment only if there is no genuine issue as to any material fact, and if the moving
party is entitled to a judgment as a matter of law.” Id.
“In a diversity action based on attorney malpractice, state substantive law, here that of
New York, applies.” Nordwind v. Rowland, 584 F.3d 420, 429 (2d Cir. 2009) (quoting Rubens v.
Mason, 527 F.3d 252, 254 (2d Cir. 2008)). “To prevail on a claim for legal malpractice under
New York law, a plaintiff must establish: ‘(1) attorney negligence; (2) which is the proximate
cause of a loss; and (3) actual damages.’” Id. (quoting Achtman v. Kirby, McInerney & Squire,
LLP, 464 F.3d 328, 337 (2d Cir. 2006) (emphasis omitted)). “To establish the elements of
proximate cause and damages, a plaintiff must show that but for the defendant’s negligence, he
or she would have prevailed in the underlying action or would not have sustained any damages.”
Allianz, 416 F.3d at 118 (quoting Aversa v. Safran, 757 N.Y.S.2d 573, 574 (2d Dep’t 2003)).
“The courts generally require malpractice plaintiffs to ‘proffer expert opinion evidence on the
duty of care to meet their burden of proof in opposition to a properly supported summary
judgment motion.’” Hatfield v. Herz, 109 F. Supp. 2d 174, 179 (S.D.N.Y. 2000) (quoting Estate
of Nevelson v. Carro, Spanbock, Kaster & Cuiffo, 686 N.Y.S.2d 404, 405-06 (1st Dep’t 1999)).
Nonetheless, “the requirement that plaintiff come forward with expert evidence on the
professional’s duty of care may be dispensed with where ordinary experience of the fact finder
provides sufficient basis for judging the adequacy of the professional service.” Id. at 179
(quoting Estate of Nevelson, 686 N.Y.S.2d at 405-06 (internal quotation marks omitted)).
On appeal, JDG focuses entirely on three of its many allegations of malpractice: (1) the
claim that DLA Piper negligently failed to ensure that JDG made a $767 interest payment
required by a contract; (2) the claim that DLA Piper improperly withdrew as JDG’s counsel in a
3
later arbitration; and (3) the claim that DLA Piper committed malpractice by representing JDG in
the arbitration despite conflicts of interest. JDG provided expert testimony in support of only the
first claim. With respect to that claim, the district court correctly concluded that no reasonable
jury could find that JDG’s failure to make the $767 payment caused the damages it suffered at
arbitration.1 As the district court persuasively reasoned, JDG had, independently of DLA Piper’s
alleged negligence, committed “abundant other . . . and more momentous” breaches of the exact
same contract. Joseph DelGreco & Co., 899 F. Supp. 2d at 283. Specifically, the evidence
showed that JDG had diverted a shipment of goods from the contractually-specified warehouse,
had failed to pay over $200,000 in invoices due under the contract, had misrepresented the
registration status of its trademark, had improperly refused to permit analysis of its books and
records, and had belatedly made five other interest payments required by the contract without
paying the accompanying late fees.2 While JDG argues that it could have cured those other
breaches, and that its supplier had in fact accepted the five tardy interest payments, it has not
explained why, unlike the other interest payments, it could not have belatedly cured its failure to
1
Relying on Barnett v. Schwartz, 848 N.Y.S.2d 663 (2d Dep’t 2007), JDG initially claimed that
the district court erred by requiring it to show “but for” rather than “proximate” causation. However,
Barnett recognized that:
In the main, the cases from the Court of Appeals, including the most recent, do not
expressly require that the negligence be either “the” or “a” proximate cause of damages,
but require proof that, “but for” the negligence of the defendant-attorney, the
plaintiff-client would have prevailed in the underlying action (in a classic
lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action
alleging negligent advice, etc.).
Id. at 668. In any event, JDG conceded at oral argument that it was required to prove but-for causation.
2
While this conduct breached a variety of agreements between JDG and its supplier, the contract
at issue in this case permitted JDG’s supplier to declare default and accelerate any available remedies in
the event that JDG breached or terminated those other agreements.
4
make the interest payment on which it rests its malpractice claim—a payment of $767 in a
contract involving more than $1,000,000. Moreover, JDG ignores the fact that the arbitrator
apparently disregarded the $767 payment, instead finding that JDG, by litigating against rather
than cooperating with its supplier, had not cured its other breaches.3 Accordingly, we affirm the
district court’s decision.
Turning to JDG’s claim based on DLA Piper’s withdrawal as counsel, we agree with the
district court that JDG could not prevail on this claim without providing expert testimony.
Evidence in the record shows that DLA Piper communicated with JDG about its failures to pay
attorney’s fees for months before withdrawing, that DLA Piper twice helped JDG apply, albeit
unsuccessfully, for litigation financing, that JDG owed DLA Piper $275,000 in fees at the time
of DLA Piper’s withdrawal, that the arbitration would have cost another $605,000, and that JDG
apparently consented to withdrawal. A juror’s ordinary experience would not permit her to
determine whether a lawyer must incur $605,000 in expenses by continuing to represent a client
who, after repeated discussions, has already failed to pay $275,000 in fees. Instead, such a
determination requires expert interpretation of complicated rules of professional conduct. See,
e.g., N.Y. Rules of Prof’l Conduct R. 1.16(c)(5) (permitting withdrawal where “the client
deliberately disregards an agreement or obligation to the lawyer as to expenses or fees”).
Accordingly, we affirm.
3
Specifically, the arbitrator awarded default interest beginning on September 5, 2008, nearly a
year after JDG failed to make the $767 payment, but only thirty days after JDG moved to compel its
supplier to arbitration. Under an agreement between JDG and its supplier, if a breach remained uncured
for thirty days, the supplier could terminate the agreement, thereby accelerating all remedies available
under any contract between the parties, including the right to default interest. Although JDG argues that
the arbitrator did not specify his reasoning, it offers no support for the dubious proposition that a
reasonable jury, and thus a court considering a motion for summary judgment, could not consider an
arbitrator’s conclusions, drawing the inferences that those conclusions compel. Indeed, because the
arbitration award is the central harm that JDG suffered, the question of what caused the arbitrator to make
that award is the primary factual issue in this case.
5
Finally, JDG argues that the district court ignored its claim that DLA Piper had
committed malpractice by representing JDG despite conflicts of interest. Our review of JDG’s
complaint reveals no such claim. But even assuming JDG had pleaded a claim based on DLA
Piper’s alleged conflicts of interest, it would have needed to produce expert testimony to
overcome a motion for summary judgment. See Hatfield, 109 F. Supp. 2d at 179; N.Y. Rules of
Prof’l Conduct R. 1.7(a)(2) (providing that an attorney may not represent a client when “there is
a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely
affected by the lawyer’s own financial, business, property or other personal interests”). Because
JDG has produced no such testimony, we affirm. See Adirondack Transit Lines, Inc. v. United
Trans. Union, Local 1582, 305 F.3d 82, 88 (2d Cir. 2002) (“[W]e are entitled to affirm the
district court on any ground for which there is support in the record, even if not adopted by the
district court”).
We have considered JDG’s remaining arguments and find them to be without merit. For
the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
6
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458 N.W.2d 424 (1990)
FIRST BANK NATIONAL ASSOCIATION, f/k/a First National Bank of Minneapolis, Respondent, and
Larkin, Hoffman, Daly & Lindgren, Ltd., intervenor, Appellant,
v.
NORTHSIDE MERCURY SALES & SERVICE, INC., et al., Respondents.
No. C9-90-323.
Court of Appeals of Minnesota.
July 31, 1990.
Review Denied September 28, 1990.
*425 John C. Thomas, Darwin J. Lookingbill, Shannon M. O'Toole, Oppenheimer Wolff & Donnelly, Minneapolis, for First Bank Nat. Ass'n, f/k/a First National Bank of Minneapolis.
Jon S. Swierzewski, Sharon L. Brenna, Larkin, Hoffman, Daly & Lindgren, Bloomington, for Larkin, Hoffman, Daly & Lindgren, Ltd.
Benjamin S. Houge, Minneapolis, for Northside Mercury Sales & Service, Inc., et al.
Considered and decided by RANDALL, P.J., and FOLEY and SCHULTZ[*], JJ.
OPINION
FOLEY, Judge.
Larkin, Hoffman, Daly & Lindgren, Ltd. appeals from the district court's grant of summary judgment for respondent First Bank National Association, f/k/a First National Bank of Minneapolis, finding that First Bank's prior security interest and *426 garnishment lien on respondent Northside Mercury Sales & Service, Inc. were superior to Larkin, Hoffman's attorneys' lien on the proceeds of a judgment arising out of a tort action for Northside against Ford Motor Company. We affirm.
FACTS
First Bank loaned money to Northside and perfected a security interest on all of Northside's inventory, equipment, accounts, instruments, chattel paper, other rights to payment and general intangibles on August 27, 1986.
When Northside defaulted on its debt to First Bank, First Bank obtained a judgment against Northside in the amount of $316,062.88 on September 22, 1988.
In February 1984, the Larkin, Hoffman law firm represented Northside and respondents Alton C. and Steven E. Ellingson in a federal court action against Ford Motor Company. In September 1987, a jury awarded Northside $270,000 from Ford for tortious interference with contractual relations. The trial court reduced the award to $185,000. The Eighth Circuit Court of Appeals affirmed the lower court's decision on April 3, 1989. See Northside Mercury Sales & Service, Inc. v. Ford Motor Co., 871 F.2d 758 (8th Cir.1989).
On April 7, 1989, First Bank served Ford with a garnishment summons in state court to obtain the money Ford owed Northside, alleging the judgment was subject to First Bank's security interest. On April 10, 1989, Larkin, Hoffman filed two notices of attorneys' lien against Northside and the Ellingsons in the amount of $638,888.57.
Larkin, Hoffman then intervened in First Bank's original suit against Northside and the Ellingsons to challenge First Bank's garnishment of the Ford judgment. The trial court granted First Bank's motion for summary judgment on the proceeds of the Ford judgment, holding that First Bank perfected its security interest prior to Larkin, Hoffman. Larkin, Hoffman moved for amended findings and conclusions and appeals from the court's order denying that motion.
The money from the Ford judgment is currently being held by the Hennepin County District Court Administrator pending the outcome of this case.
During the course of the initial Ford litigation in federal court, Larkin, Hoffman received two notes and mortgages on rental property to secure its fees in representing Northside and the Ellingsons. Larkin, Hoffman foreclosed on the second mortgage and received approximately $261,000 as a result. Larkin, Hoffman then began foreclosure proceedings on the first mortgage.
Northside and the Ellingsons then sued Larkin, Hoffman to enjoin it from foreclosing on the first mortgage, claiming breach of contract, legal malpractice and breach of ethical duties. The trial court enjoined the foreclosure proceedings on the first mortgage pending the outcome of Northside's suit against Larkin, Hoffman. There was no redemption from the foreclosure of the second mortgage.
ISSUE
May a law firm challenge a trial court's determination on the priority of liens against a judgment when the law firm's statutory attorneys' lien on that judgment has been fully satisfied by foreclosure of a second mortgage and merger of a first mortgage, both given to secure its attorney fees?
ANALYSIS
First Bank argues that intervenor Larkin, Hoffman lacks standing to bring this appeal because its lien for attorney fees from the Ford litigation has already been satisfied. We agree.
Under Minnesota statutes, an attorneys' lien on a client's cause of action continues until it is discharged or satisfied. Byram v. Miner, 47 F.2d 112, 115 (8th Cir.1931), cert. denied, 283 U.S. 854, 51 S.Ct. 648, 75 L.Ed. 1461 (1931). Minn.Stat. § 481.13 (1988) provides that attorneys' liens
may be established, and the amount thereof determined, by the court, summarily, *427 in the action or proceeding, on the application of the lien claimant or of any person or party interested in the property subject to such lien * * *.
Alternatively, the lien may be established in a separate equitable enforcement action. Boline v. Doty, 345 N.W.2d 285, 289 (Minn. App.1984).
In this case, Larkin, Hoffman is attempting to establish its lien by intervening in an action by a third party (First Bank) seeking to enforce its interest in the proceeds of a judgment. The amount of Larkin, Hoffman's attorneys' lien could have been determined in this proceeding. The trial court, however, only determined that First Bank's lien was prior to Larkin, Hoffman's attorneys' lien and did not address the amount of Larkin, Hoffman's lien or whether that lien had been satisfied. For the reasons expressed in this opinion, it is unnecessary for this court to remand to the trial court to make any such determination.
The trial court's findings of fact state that Larkin, Hoffman took two mortgages on some of the Ellingsons' property to secure its attorney fees. Larkin, Hoffman foreclosed on its second mortgage for $275,000 but still has a first mortgage of $425,000. This court recognized the foreclosure on the second mortgage in Ellingson v. Larkin, Hoffman, Daly & Lindgren, No. CX-90-329, 1990 WL 84661 (Minn.App. June 26, 1990).
In that case the Ellingsons instituted an action against Larkin, Hoffman alleging malpractice and fraud in connection with the Ford lawsuit. The trial court granted the Ellingsons' request to enjoin Larkin, Hoffman's foreclosure on the first mortgage pending the outcome of the lawsuit. The trial court subsequently ordered that, regardless of the fact that the redemption period had expired on the foreclosure of the second mortgage, the Ellingsons were entitled to collect rents on the mortgaged property until trial on the malpractice claims. This court reversed, holding that "it was error for the trial court to impose any immediate conditions on the mortgagee's title and possessory rights." Id.
Where the holder of first and second mortgages, executed by the same mortgagor and covering the same real estate, forecloses on the second mortgage and acquires title in fee, the lien of the first mortgage is merged in the fee. The debt secured by the first mortgage is thereby discharged where it does not appear that there was an intention to prevent such a merger. Mulligan v. Farmers National Bank, 194 Minn. 451, 456-57, 260 N.W. 630, 632 (1935).
A court may deny a request for an attorneys' lien after determining that the amount the client has already paid is sufficient compensation for legal services rendered. Roehrdanz v. Schlink, 368 N.W.2d 409, 412 (Minn.App.1985).
In Roehrdanz, an attorney brought a petition to establish an attorneys' lien on nonhomestead property involved in the client's divorce. The referee denied the attorney's request for a lien, finding that the fees already paid by the client were sufficient compensation for the legal services rendered. The district court affirmed the referee's finding and the attorney appealed. This court determined that the trial court had the power to determine whether the amount the client had already paid was sufficient compensation for legal services rendered and to deny the petition for an attorneys' lien. Id. at 412.
In 1920, the Minnesota Supreme Court held that when an attorney has a lien for services upon a cause of action under statute, the attorney may elect to enforce lien rights by an independent action against the defendant or by intervention in the original action. Middelstadt v. City of Minneapolis, 147 Minn. 186, 179 N.W. 890 (1920). In Middelstadt, the attorney proceeded by intervention in the original action. The supreme court held that the attorney could not thereafter resort to an independent action to recover attorney fees.
We likewise hold that where, as here, an attorney has elected to enforce lien rights by foreclosing on mortgages held as security for the attorney fees and thereby obtains title in fee in that property, *428 the attorney may not attempt to enforce the statutory lien against the judgment.
The doctrine of election of remedies applies when a party adopts two or more inconsistent remedies and is designed to prevent double redress for a single wrong. Covington v. Pritchett, 428 N.W.2d 121, 124 (Minn.App.1988). A party is bound by an election of remedies when he has pursued a chosen course of action to a determinative conclusion or has procured an advantage therefrom. Abdallah, Inc. v. Martin, 242 Minn. 416, 422, 65 N.W.2d 641, 645 (1954).
Larkin, Hoffman has proceeded on two inconsistent remedies. First, it elected to foreclose on the mortgages which secured its attorney fees. Second, it then attempted to enforce its attorneys' lien on the judgment. Since this court decided in Ellingson the foreclosure of the second mortgage was legitimate and the property was not redeemed, that remedy has reached a determinative conclusion. Larkin, Hoffman has foreclosed on a second mortgage worth $275,000. Larkin, Hoffman's first mortgage of $425,000 on the property is extinguished due to the doctrine of merger. Therefore, it has essentially received $700,000 to satisfy its attorney fees.
Larkin, Hoffman claims the amount owed to it for attorney fees by Northside is $638,888.57 plus interest. While the trial court did not make a determination regarding the amount of the attorneys' lien, it is conceded the value of the property foreclosed upon and merged exceeds the amount of fees claimed by Larkin, Hoffman. Therefore, the lien has been fully satisfied.
Since Larkin, Hoffman's attorneys' lien on the Ford judgment has been satisfied, Larkin, Hoffman has no standing to challenge the trial court's decision regarding distribution of the Ford judgment funds. At oral argument, the Ellingsons conceded that if Larkin, Hoffman is not entitled to recover on its attorneys' lien, the funds from the Ford judgment should go to First Bank. We, therefore, decline to address the issue whether First Bank is entitled to the proceeds of the Ford judgment because it represents proceeds from a tort claim rather than contract.
The motion of First Bank to strike that portion of Northside and the Ellingsons' brief and appendix seeking a reversal of the trial court's summary judgment in favor of First Bank is granted. This court lacks jurisdiction to entertain that issue because Northside and the Ellingsons have not timely appealed the summary judgment. The motion of Larkin, Hoffman to strike the brief of Northside and the Ellingsons because it relies on matters outside of the record and engages in a personal attack upon the attorneys for Larkin, Hoffman is granted. The brief played no part in the consideration or decision of this case.
DECISION
Larkin, Hoffman's lien for attorneys' fees from the Ford litigation has been satisfied by Larkin, Hoffman's foreclosure and extinguishment of two mortgages held as security for its fees, where the amount of the mortgages totals more than the fees claimed. Therefore, Larkin, Hoffman has no standing to challenge the trial court's distribution of the Ford judgment proceeds.
Affirmed.
NOTES
[*] Acting as judge of the Court of Appeals by appointment pursuant to Minn. Const. art. 6, § 2.
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0917-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CURTIS BLUNT, a/k/a
CURTIS MCCLAIN,
Defendant-Appellant.
______________________________
Submitted March 10, 2020 – Decided May 8, 2020
Before Judges Messano, Ostrer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Accusation No. 14-11-
0506 and Indictment No. 12-12-1859.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (Patrick F. Galdieri
II, Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Curtis Blunt, appeals from the sentence imposed following his
revocation of special Drug Court probation. Specifically, he contends the
resentencing court should have awarded additional jail credits. We determined
that the record before us was inadequate to permit meaningful appellate review
of defendant's claim that he was entitled to additional jail credits. Accordingly,
we temporarily remanded to the trial court to conduct further proceedings and
enter findings of fact and conclusions of law. We retained jurisdiction.
Sadly, we have since been advised by defense counsel that defendant is
deceased. It is hereby ordered that the appeal is dismissed as moot.
A-0917-17T4
2
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416 Pa. 103 (1964)
Ily, Appellant,
v.
North Versailles Township.
Supreme Court of Pennsylvania.
Argued September 30, 1964.
November 10, 1964.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*104 Saul Davis, with him Joseph U. Esper, for appellant.
George M. Weis, with him Weis & Weis, for appellee.
OPINION BY MR. JUSTICE EAGEN, November 10, 1964:
Plaintiff sustained injury as a result of a fall while walking in the roadway of one of the defendant-township's streets. Alleging that the accident was caused by large ruts of ice and snow, which the defendant had negligently permitted to exist on a public thoroughfare, this action for damages resulted. After trial, the jury returned a verdict for the defendant specifically finding that the defendant was not negligent. After judgment entered upon the verdict, the plaintiff appealed asserting error in the charge to the jury by the trial judge on the questions of negligence and contributory negligence.
We need not reach the questions raised concerning the correctness of the charge since, in our view, the plaintiff failed to establish the existence of negligence on the part of the township. Hence, the issue should not have been submitted to the jury in the first place.
The ridges of ice and frozen snow which caused the plaintiff's fall were, under the testimony, completely due to natural weather conditions. The fall occurred not on a sidewalk, but in the roadway. While a municipality *105 may be liable for injury caused by an artificial accumulation of ice and snow in the roadway, it is not responsible for injury due to an accumulation of ice and snow in the cartway or roadway resulting solely from natural weather conditions: Strauch v. Scranton, 157 Pa. Superior Ct. 174, 42 A. 2d 96 (1945), aff'd 353 Pa. 10, 44 A. 2d 258 (1945); Imhoff v. Pittsburgh, 202 Pa. Superior Ct. 232, 195 A. 2d 862 (1963); Solinsky v. Wilkes-Barre, 375 Pa. 87, 99 A. 2d 570 (1953).
Judgment affirmed.
Mr. Justice MUSMANNO and Mr. Justice COHEN dissent.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00666-CR
Charles Michael Taylor, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 51,289, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
Appellant Charles Michael Taylor appeals his conviction for sexual assault of a child.
See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (West Supp. 2002). Appellant waived trial by jury and
entered a plea of guilty before the court. Appellant's punishment was assessed by the trial court at
fifteen years' imprisonment.
Issue
Appellant advances one issue in the form of a question: "Whether the appellant
received a fair trial when the trial court denied him the opportunity to present relevant evidence and
testimony during the sentencing portion of the trial and when the judge abandoned her neutral role
and became an advocate in the adversarial process." We will affirm the conviction.
Background
On August 27, 2001, appellant entered a plea of guilty to the indictment before Judge
Joe Carroll. Appellant waived trial by jury and was duly admonished of the consequences of his plea
by Judge Carroll. It was determined that there was no plea bargain as to the penalty to be assessed
except that the State agreed to dismiss another indictment for sexual assault of a child involving a
different complainant if appellant admitted his guilt of that offense and requested the trial court to
take that offense into account in assessing punishment for the instant offense. See Tex. Pen. Code
Ann. § 12.45(a) (West 1994). Appellant's written sworn judicial confession to the instant offense
was admitted into evidence to support the guilty plea. See Tex. Code Crim. Proc. Ann. art. 1.15
(West Supp. 2002); Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (judicial
confession alone is sufficient to satisfy requirements of article 1.15). Judge Carroll concluded that
the evidence was sufficient to support appellant's plea. At this point, however, appellant requested
that a presentence investigative report be made before punishment was assessed. See Tex. Code
Crim. Proc. Ann. art. 42.12, § 9 (West Supp. 2002). As a result, the case was continued until
October 31, 2001. (1)
On October 31, 2001, the trial resumed before Judge Martha Trudo where the
proceedings were treated as a "sentencing" hearing. The State called Margaret Rutherford,
appellant's ex-wife, who identified B.T., the complainant in the instant case, and S.M., the
complainant in the other case against appellant, as "her daughters." She related that she had been
married to appellant for twenty-two years prior to the divorce, which occurred almost three years
before trial. Rutherford, referring to the girls, stated: "[W]e didn't adopt them. We got them." B.T.
was six months old and S.M. was eighteen months old when the girls were taken into the Taylor
home. B.T. was fifteen years old at the time of the alleged offense. Rutherford principally testified
as to the impact of the offenses upon her and the girls. Appellant then testified, giving his version
of the offense and the earlier divorce.
Although appellant's issue on appeal is multifarious and presents nothing for review,
we shall nevertheless consider it. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App.
1990). First, appellant contends that the trial court denied him the opportunity to present relevant
evidence at the "sentencing" portion of the trial. This contention refers to the testimony of Margaret
Rutherford. Appellant claims Rutherford's testimony indicated that the complainant, B.T., had been
"a problem to handle" before and after the offense in question, and that all of this was entirely
appellant's fault. Appellant urges that when he attempted to cross-examine Rutherford to show that
B.T. had been referred to the juvenile authorities for setting fires, the trial court sustained the State's
relevancy objection, and he was prevented from offering relevant evidence.
When evidence is excluded, the offering party, in order to preserve error for review,
must make an offer of proof or perfect a bill of exception as to the substance of the evidence
excluded. Tex. R. Evid. 103(a)(2), (b); Howard v. State, 962 S.W.2d 119, 122 (Tex. App.--Houston
[1st Dist.] 1997, pet. ref'd). This appellant did not do.
It is observed that appellant did elicit from Rutherford that she had referred B.T. to
the juvenile authorities on two occasions. Rutherford, however, denied that B.T. ever set fires.
There was no objection to appellant's exhibit number four, a letter from Dr. Feroza B. Talukdar,
M.D., a child/adolescent psychiatrist, with the Central Counties Center for Mental Health and Mental
Retardation Services to the Children's Mental Health Services in Temple, dated April 12, 1999. The
letter stated that B.T. was in need of intense supervision and "has been known to set fires."
Appellant did not preserve error for review, but the evidence appellant claims was improperly
excluded found its way into evidence. There is no merit to appellant's contention.
Appellant also complains that Rutherford, on cross-examination, volunteered an
unresponsive statement that appellant beat B.T. and she "was torn with his rape." Appellant made
no objection to the unresponsive answer, but asked Rutherford if the Scott and White Hospital
records showed B.T. suffered no trauma. Rutherford disputed that, and when appellant stated he had
those records, Rutherford replied that they were not the same records shown her. The trial court then
sustained the State's objection about relitigating the facts. Appellant urges this action prevented him
from disproving the claim made by Rutherford. Appellant took no other action. He did not make
an offer of proof or perfect a bill of exception. See Tex. R. Evid. 103(a)(2), (b). He waived any
error. See Howard, 962 S.W.2d at 122.
In the second portion of appellant's multifarious contention or issue, appellant
complains of the trial court's interrogation of him after he had taken the witness stand at the
"sentencing" hearing. After the direct, cross, and re-direct examinations were concluded and the
State had no further questions, the trial court began its interrogation of appellant who had been
somewhat evasive. It is obvious that the trial court was attempting to clarify appellant's earlier
testimony, and there was no objection to the trial court's questioning. Nothing is presented for
review. Tex. R. App. P. 33.1(a).
We do not understand appellant to be claiming fundamental error. He has not briefed
the issue along those lines except to simply say that in "cases where the error was not preserved, the
harm to the defendant must be egregious, that is so harmful that the defendant was denied a fair and
impartial trial." Almanza v. State, 686 S.W.2d 157 (Tex. Cr. App. 1984)." Almanza dealt with an
interpretation of the statutory language in article 36.19 of the Texas Code of Criminal Procedure
regarding jury charge error. Id. at 171 (op. on reh'g). It is not applicable here. Cf. Huizar v. State,
12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (holding Almanza sets appropriate harm analysis for
jury charge error under article 36.19, not Rule 44.2).
A trial judge may question a witness in order to clarify an issue the trial judge must
decide in fulfilling her fact-finding role. In re R.P., 37 S.W.3d 76, 79 (Tex. App.--San Antonio
2000, no pet.); In re S.J., 940 S.W.2d 332, 338 (Tex. App.--San Antonio 1997, no writ); Moreno
v. State, 900 S.W.2d 357, 359 (Tex. App.--Texarkana 1995, no pet.). These cases make clear that
a trial judge should not become so entangled in questioning as to become an advocate for the State,
thereby precluding the trial judge from rendering an objective finding. R.P., 37 S.W.3d at 79; S. J.,
940 S.W.2d at 338; Moreno, 900 S.W.2d at 359-60.
Even if error had been preserved in the instant case, we conclude that the trial court
did not become so entangled in the interrogation as to become an advocate for the State. Trial courts
must be extremely careful in engaging in the interrogation of any witness. Courts cannot be
advocates for either party. The purpose of the interrogation must be proper and limited, and a court
should be aware it is "skating on thin ice" when it engages in questioning a witness.
The instant case was a bench trial on a plea of guilty. It did not involve a trial court's
comments or interrogation of a witness in the presence of a jury. Cf. Blue v. State, 41 S.W.3d 129
(Tex. Crim. App. 2000) (holding trial court's comments to jury constituted error).
Appellant's issues are overruled. The judgment is affirmed.
__________________________________________
John F. Onion, Jr., Justice
Before Justices B. A. Smith, Yeakel and Onion*
Affirmed
Filed: May 9, 2002
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. The Court of Criminal Appeals recently reiterated that the statute providing for bifurcated-trial procedure applies only in pleas of not guilty before the jury. Barfield v. State, 63 S.W.3d 446,
449-50 (Tex. Crim. App. 2001); Tex. Code Crim. Proc. Ann. art. 37.07, § 2(a) (West 1981 & Supp.
2002). A plea of guilty before the court in a felony case is a unitary trial, but the provisions of article
42.12, section 9 frequently cause a break in the proceedings.
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551 S.E.2d 858 (2001)
STATE of North Carolina
v.
Sonja Alethea STEPHENSON.
No. COA00-512.
Court of Appeals of North Carolina.
July 3, 2001.
*860 Attorney General Michael F. Easley, by Special Deputy Attorney General Alexander McC. Peters, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for the defendant.
HUDSON, Judge.
Defendant appeals her conviction of common law burglary and first degree murder. We find no reversible error in the proceedings below.
The evidence presented at trial tended to show the following: in the fall of 1996, the 30-year old defendant went regularly to the home of 84-year old Mildred Carter (Carter). She knew where Carter kept her money and when Carter's monthly checks arrived, and she told her friend Sharon Turner that she was "getting" money from Carter. She told Turner, "I ought to rob Ms. Mildred, hit that bitch in the head."
Defendant indicated in a statement to police that, on 10 December 1996, she went to Carter's home to pay back some money she owed her. Defendant asked to borrow more money, but Carter said no. Defendant then went to use the phone in Carter's bedroom, opened her dresser drawer when Carter wasn't looking, and removed $10.00. Carter "caught" defendant taking the money and demanded it back. She allegedly grabbed *861 defendant's coat sleeve and pushed her, and defendant pushed her back. Defendant maintained that Carter then hit a closet door and grabbed some plastic bags as she fell to the floor. The bags purportedly "caught on [Carter's] face" and she struggled to remove them. Defendant claimed she began putting more bags on Carter's face, and that Carter started wheezing. It appeared to defendant that Carter had gotten part of a bag in her mouth, and Carter asked defendant to help her, but defendant "was scared and couldn't move." "I just watched her choke herself... from the bags being over her face that she just couldn't get off alone." Defendant opined that Carter essentially "killed herself from fighting herself with the plastic bags."
On 11 December, law enforcement officers discovered Carter's body lying at the front door inside her home. Carter had been dead for a number of hours, and her body was fully clothed and lying face up with a brown plastic grocery bag pressed tightly around her neck. Newspapers and five or six plastic grocery bags were in disarray around the immediate area of her body. There was no evidence of a struggle anywhere else in the home. The autopsy showed Carter had eight broken ribs and a depression in the skin around most of her neck. The cause of death was a combination of ligature strangulation (strangulation with a device pulled around the neck) and smothering.
Defendant was subsequently indicted for armed robbery and murder. The jury found her guilty of common law robbery and first degree murder under the theory of felony murder, with robbery as the underlying felony. The jury was unable to reach a unanimous verdict with regard to awarding defendant the death penalty. The trial court arrested judgment on the robbery conviction and sentenced defendant to life in prison without parole. Defendant appealed to this Court.
Defendant first argues that her first degree murder conviction must be vacated, because there is insufficient evidence she committed common law robbery, the felony which underlies her first degree murder conviction. Common law robbery is defined as the non-consensual taking of money or personal property from another by means of violence or putting in fear. State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982). The violence or putting in fear must precede or be concomitant with the taking in order for the crime of robbery to be committed. State v. Sumpter, 318 N.C. 102, 111, 347 S.E.2d 396, 401 (1986).
Defendant in this case contends there was no evidence any taking of property was done "by violence or putting in fear." She claims the taking of the money from Carter's dresser was complete by the time she and Carter had a physical altercation. A similar argument was made by the defendant in State v. Sumpter, who asserted the evidence showed he had broken into an unoccupied house and had already taken property when the victim unexpectedly came home and he shot her. The Supreme Court held: "From this evidence the jury rationally could have found beyond reasonable doubt that defendant used violence before he left the victim's premises with the stolen property, and, therefore, before the taking was over." 318 N.C. at 112, 347 S.E.2d at 402. Thus, the taking and the violence were part of "one continuing transaction" and supported the charge of robbery. Id.
In the present case, the evidence taken in the light most favorable to the State showed that defendant resorted to violence before she left Carter's home in order to retain the money she had taken from Carter's dresser. See State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982)(in determining sufficiency of evidence to support verdict, evidence must be taken in light most favorable to the State). This evidence is sufficient to prove defendant took money from Carter by violence or putting her in fear, and therefore supports the charge of common law robbery.
Defendant next contends the trial court erroneously admitted evidence that she had bought and used illegal drugs. State's witness Wendell Gatling (Gatling) testified without objection that, in early December 1996, defendant asked him for a ride to Norfolk, bought $60.00 worth of cocaine there, and smoked it. He further testified without *862 objection that on 11 December 1996, the day after Carter died, defendant asked him for a ride to Norfolk to buy cocaine, bought and smoked cocaine on the way to Norfolk, unsuccessfully tried to buy more cocaine in Norfolk, and asked Gatling if he knew where to buy more cocaine. Over defendant's objection, Gatling read his prior statement to police containing this evidence to the jury, and the statement itself was admitted as evidence for corroborative purposes. Also over defendant's objection, Investigator Mason read a statement to the jury by defendant in which she admitted unsuccessfully trying to buy cocaine in Norfolk on December 11th. Finally, defendant complains that the State, with no objection by defendant, referred to defendant's buying and using cocaine a number of times during closing argument.
Defendant claims the above evidence was inadmissible under N.C.R. Evid. 401 because it was irrelevant in proving the crimes charged. Defendant also contends its admission violated N.C.R. Evid. 404(b), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Defendant argues that this evidence convinced the jury she was a person of bad character who must have committed the charged offenses.
Evidence of other wrongs, however, "may be admissible for other purposes, such as proof of motive." N.C.R. Evid. 404(b). In the present case, we believe evidence of defendant's drug use was properly used to demonstrate that she had a motive to rob Carter. See State v. Powell, 340 N.C. 674, 690, 459 S.E.2d 219, 226-27 (1995), cert. denied, 516 U.S. 1060, 116 S.Ct. 739, 133 L.Ed.2d 688 (1996)(evidence of defendant's cocaine habit relevant to show motive to commit robbery after his government assistance checks were terminated); State v. Stevenson, 136 N.C.App. 235, 241, 523 S.E.2d 734, 737 (1999), disc. review denied, 351 N.C. 368, 543 S.E.2d 144 (2000)(evidence that defendant went to place known for drug dealing immediately after robbery relevant to show motive); State v. Smith, 96 N.C.App. 235, 240, 385 S.E.2d 349, 351 (1989), disc. review denied, 326 N.C. 267, 389 S.E.2d 119 (1990)(defendant's possession of cocaine tended to establish motive for robbery). In this case, the evidence of defendant's drug use was limited to two instances in December 1996, clearly within the time period she was "getting" money from Carter. The second day about which Gatling testified, December 11th, was the day after Carter was killed. Evidence of defendant's desire and attempt to buy drugs in December 1996 provides a potential explanation as to why she killed Carter in order to retain the $10 she had taken.
We note that defendant did not object to the majority of the instances in which the State introduced evidence of defendant's drug use. As such, defendant is limited to arguing that the trial court committed "plain error" in allowing such evidence. See N.C.R.App.P. 10(c)(4). "Before deciding that an error by the trial court amounts to `plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." State v. Gardner, 315 N.C. 444, 450, 340 S.E.2d 701, 706 (1986) (citations omitted). As for the evidence to which defendant properly objected, in order to reverse the trial court, we must believe that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial." See N.C.G.S. § 15A-1443(a) (1999).
Assuming arguendo that the evidence of defendant's drug use was improperly admitted, we cannot say the trial court committed "plain error," or even prejudicial error under G.S. § 15A-1443. We do not believe there is a reasonable possibility the trial would have had a different outcome if the jury had not known of defendant's drug use. Defendant admitted that she took money from Carter, then engaged in a physical altercation with Carter, put bags on her face, and watched her die. Her assertion that Carter killed herself fighting with the bags is incredible and would not have become more believable in the absence of this evidence. The autopsy showed Carter was killed in part by ligature strangulation, and this evidence created a strong inference that defendant *863 strangled her to death with a grocery bag.
Defendant next contends the trial court erroneously admitted testimony by Leroy Long (Long) regarding statements made by Carter before her death under N.C.R. Evid. 804(b)(5) without making proper findings. The State filed a pre-trial notice of intent to present Long's hearsay evidence at trial under Rule 804(b)(5), and the court held a hearing on the matter. At the hearing, Long testified that in the several weeks before her death Carter told him: 1) "[Defendant] took $200 from [me];" 2) "While [defendant] was making a telephone call, that's when she got that $200;" 3) "I know who got [my money] because [defendant is] the only one that's been here and been in there;" 4) "[Defendant has] got every nickel I've got in here and I don't have money to pay my bills;" and 5) "I ain't got no money because [defendant has] done been in here and got my money." In an oral order later reduced to writing, the trial court admitted this testimony into evidence over defendant's objection. Also over defendant's objection, the court instructed the jury it could consider Long's testimony to show that defendant had "a plan, scheme, system, or design involving the crime charged in this case."
Under Rule 804, if a witness is unavailable to testify at trial, for example, due to death, the witness's statement may be admitted under certain exceptions to the rule excluding hearsay. Under Rule 804(b)(5), a statement not covered under other specifically enumerated exceptions is admissible if it has
equivalent circumstantial guarantees of trustworthiness [and] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Defendant argues the trial court failed to make findings of fact and conclusions of law that Long's testimony was "more probative on the point for which it [was] offered than any other evidence which the proponent [could have] procure[d] through reasonable efforts." Defendant's argument is without merit.
The trial court made numerous findings of fact to the effect that Long and Carter were extremely close and that he was the only person in the community who looked after her, whom she trusted, and in whom she confided about financial and personal matters. Carter was clearly the person in the best position to know that defendant had stolen $200 from her, and the court's findings demonstrate that Long was the likeliest person with whom Carter would have shared this information.
The trial court made a conclusion of law that Long's hearsay testimony was "more probative than any other evidence which the State may present because the victim, Mildred Carter, is unavailable due to her death." Defendant is correct that Carter's unavailability due to her death is a prerequisite for admission of the evidence under Rule 804(b)(5), and is not an explanation of why Long's testimony was more probative on the point for which it was offered than any other evidence the State could reasonably find. However, the trial court's extensive findings of fact support its conclusion that Long's testimony did meet the requirements of Rule 804(b)(5)(B).
As for the trial court's instruction to the jury that it could use Long's testimony as proof that defendant had a plan or scheme to rob Carter, defendant simply argues that it was improper due to the inadmissibility of Long's statement under Rule 804(b)(5). Again, the trial court made proper findings as to the admissibility of Long's statement. This assignment of error is overruled.
Next, defendant asserts the trial court erroneously admitted certain irrelevant evidence which had the effect of inflaming the passions of the jury to convict her. First, Mary Pittman testified that, on 11 December 1996, she attempted to deliver a Christmas gift basket to Carter's house but got no answer. Over defendant's objection, Pittman testified that the basket was from Carter's church and affirmed that Carter was *864 never able to get her "little goodie Christmas basket" because she was dead.
Second, Pittman, Leroy Long, and Sharon Turner testified that a portrait photograph of Carter taken before she died looked like Carter in life; over defendant's objection, the trial court admitted the picture into evidence. This picture was later passed to the jury.
Third, over defendant's objection, Detective Barfield identified and the court admitted into evidence twelve items of clothing he retrieved at Carter's autopsy and from her home, including the gown, shorts, shoes, underpants, panties, bra, slip, stockings, girdle, hat, and wig she appeared to have been wearing at the time she was killed, and a loose button found under her body. The jury was at one point allowed to view and touch the clothing while wearing gloves.
N.C.R. Evid. 401 states: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The photograph of Carter was relevant in that it allowed the State to contrast Carter's normal, well-kept appearance with her appearance when she was found dead in her home. This contrast was evidence that there was a struggle before she died. Furthermore, certain items of Carter's clothing had dirt and blood on them and thus were relevant as evidence of a struggle and of her injuries.
We agree that Pittman's statement regarding Carter's inability to get her Christmas basket was irrelevant to the case, as were arguably certain items of Carter's clothing which were not stained, such as her underclothing. However, we believe there is no reasonable possibility that admission of Pittman's statement and Carter's clothing changed the outcome of this case. See G.S. § 15A-1443(a). As discussed above, defendant's explanation of Carter's death defies credibility; there was convincing evidence that defendant robbed and killed Carter. Any error by the trial court in admitting the above evidence was harmless. Furthermore, defendant did not object to the jury's personal viewing of Carter's picture and of her clothes, and we do not believe the trial court's allowing this contact with the evidence amounted to plain error.
Defendant next argues that the trial court erred in denying her motion to suppress oral and written statements she gave to the police on 14 December 1996, in that she was not properly advised of her constitutional rights beforehand and that the statements were given involuntarily.
In its order on defendant's motion to suppress these statements, the trial court found the following facts: On 13 December 1996, officers spoke with defendant on three occasions. She gave statements on two of these occasions, which statements are not the subject of the motion to suppress.
On the afternoon of 14 December 1996, Detectives Barfield and Skinner interviewed Wendell Gatling, who gave a statement which conflicted with those of defendant. The officers telephoned Investigator Mason and asked that he seek defendant's further cooperation in coming to the sheriff's office for another interview. Mason went to defendant's house in plain clothes, asked if she would go to the sheriff's department to answer more questions, and, when she said yes, returned to his unmarked car to wait for her. Defendant sat in the front seat of the police car on the way to the station.
At the station, she was taken into an interview room and given the Miranda warnings at approximately 6:30 p.m. Defendant indicated she understood each of the constitutional rights read to her and signed a form waiving these rights. Mason did not ask her any questions, but explained that the interview would not begin until Barfield and Skinner arrived in a few minutes. Defendant indicated her willingness to wait for their arrival and thereafter sat in the interview room unattended. Approximately 30 to 45 minutes later, Barfield and Skinner arrived. Barfield and Mason conferred outside the interview room in close proximity to defendant, where Mason advised Barfield he had warned defendant of her rights and that she had waived them. Barfield entered the room and advised her that he wanted to talk with *865 her further, but that she was not under arrest and that she was free to leave. Barfield and Skinner, also present, were unarmed, in plain clothes, and without handcuffs or symbols of authority.
After some discussion with the officers, defendant requested to smoke and use the telephone, both of which were allowed. She went across the hall to use the telephone unattended. She talked for approximately three to five minutes to her mother, then returned to the room and said, "I'll tell you what happened." She gave an inculpatory verbal statement, and when she was finished, the officers asked her to write it down. She was then advised of her Miranda rights, waived them, and wrote the same statement she had orally given. Finally, she was arrested and booked.
The trial court's findings of fact resulting from the voir dire on defendant's motion to suppress are binding if they are supported by any competent evidence in the record. State v. Leak, 90 N.C.App. 351, 354, 368 S.E.2d 430, 432 (1988). We have thoroughly reviewed the record and determined the court's findings of fact above are so supported.
Defendant first contends that her oral statement to police on 14 December 1996 is inadmissible because she was in custody at the time of the statement and was not warned of her constitutional rights before she gave it. See State v. Harvey, 78 N.C.App. 235, 237, 336 S.E.2d 857, 859 (1985)(person "in custody" of police must be informed of rights before interrogation begins). The trial court found that defendant was informed of her rights at 6:30 p.m. and was questioned by police approximately 30 or 45 minutes later. Defendant contends that the 6:30 p.m. Miranda warnings had grown stale by the time she was questioned by police and gave an inculpatory statement at approximately 8:00 p.m.
Whether the Miranda warnings were stale such that "there is a substantial possibility [defendant] was unaware of [her] constitutional rights at the time of the subsequent interrogation" is to be determined by the totality of the circumstances. See State v. McZorn, 288 N.C. 417, 434, 219 S.E.2d 201, 212 (1975), vacated in part, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976). Our Supreme Court has set forth several factors to consider in determining whether earlier Miranda warnings remained in effect during subsequent questioning:
(1) the length of time between the giving of the first warnings and the subsequent interrogation; (2) whether the warnings and the subsequent interrogation were given in the same or different places; (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers; (4) the extent to which the subsequent statement differed from any previous statements; (5) the apparent intellectual and emotional state of the suspect.
Id. (citations omitted).
Assuming arguendo that defendant was in police custody on December 14th and that therefore Miranda warnings were required, an analysis of the above factors leads us to a determination that the 6:30 p.m. warnings were still in effect at the time of defendant's questioning 30 to 45 minutes later and at the time of her inculpatory oral statement one and a half hours later. First, based on prior case law, we do not believe an overly long amount of time passed between the giving of the Miranda warnings in this case and defendant's questioning and statement. See State v. Mitchell, 353 N.C. 309, 328, 543 S.E.2d 830, 842 (2001)(admitting a confession which occurred six and a half hours after warnings); State v. Westmoreland, 314 N.C. 442, 447, 334 S.E.2d 223, 226 (1985)(second interrogation within two and a half hours of initial warnings; warning not stale); State v. Small, 293 N.C. 646, 655, 239 S.E.2d 429, 436 (1977)(thirty minute lapse of time between initial questioning and subsequent interrogation did not render warnings stale).
Furthermore, defendant was given the Miranda warnings and interrogated in the same room. Although Officer Mason gave defendant the warnings and Officers Barfield and Skinner questioned her, Mason explicitly told defendant that the other officers, not he, were going to question her. She expressed a willingness to wait for their arrival and was *866 thereafter left alone in the room to wait for them. There were no intervening events between the warning and their arrival to dilute the message of the Miranda warnings. However, defendant's December 14th statement did differ from her earlier statements and did inculpate her. This factor weighs against finding the Miranda warnings to be valid.
Regarding defendant's intellectual and emotional state, the court found as fact that she was a thirty year-old woman with a twelfth grade education. She was not under the influence of drugs or alcohol at the time of her statement; rather, she was alert and coherent and her attitude toward the officers was generally calm.
Balancing the above factors, we agree with the finding of the trial court that the 6:30 p.m. Miranda warnings were not so remote in time as to be stale at the point of defendant's questioning and statement shortly thereafter. In other words, we do not believe there is a substantial possibility that defendant was unaware of her constitutional rights at the time she gave her December 14th oral statement. As for defendant's written statement, given immediately after the oral statement, defendant was advised of her constitutional rights before making it.
Regardless of her awareness of her Miranda rights, defendant contends that her statements were induced by promises made by the officers and an overall coercive environment. In determining whether a statement was given voluntarily, the court is to consider the totality of the circumstances. State v. Smith, 328 N.C. 99, 114, 400 S.E.2d 712, 720 (1991).
Defendant first points to several statements made by Detectives Barfield and Skinner during her questioning on December 14th as being coercive. Specifically, Barfield told her that in his experience, "a lie would hurt her much more than the truth ever would." He also said that if she had to go to court, she "could tell the court about her drug problem, or anything else she wanted to tell." Detective Skinner told her that "a mistake had been made and it was time to correct it."
A confession is not admissible when it is induced by "threat, coercion, hope, or promise of reward." State v. Small, 293 N.C. 646, 652, 239 S.E.2d 429, 434 (1977). However, it is not coercive for officers to ask an accused to tell the truth if they hold out no hope of a lighter punishment in exchange for the accused's inculpatory statement. State v. Fox, 274 N.C. 277, 292, 163 S.E.2d 492, 503 (1968). In Small, the Supreme Court held that an officer's telling a defendant that he could not "buy" one of the defendant's statements and that the defendant should tell the truth did not amount to coercion. 293 N.C. at 653, 239 S.E.2d at 435. Likewise, in State v. Dishman, 249 N.C. 759, 762, 107 S.E.2d 750, 752 (1959), the Supreme Court did not object to an officer's message that "[he] thought it would be better if [the defendant] would go ahead and tell [them] what had happened."
In this case, the officers were merely speaking in generalities and asking defendant to tell the truth. The trial court found as fact that the officers made no promises of leniency in exchange for her giving a statement, and there is evidence in the record to support this finding.
Detective Barfield's statement that she could tell the court about her drug habit does imply that drug use is a relevant factor the court might consider in her favor in determining her culpability. However, the officers did not promise defendant that the judge would show her leniency on this basis. In fact, the trial court did submit defendant's cocaine use as a mitigating factor in her sentencing phase, and it was the only mitigating factor the jury found to apply.
Defendant also objects to certain statements the officers made about her child. When Detective Skinner visited her home on the night of December 13th, he told her that her son was well-behaved. On December 14th, during defendant's questioning, he told her he "saw the closeness that she had with her child the night before." Also on the 14th, Detective Barfield told defendant her child deserved a better life than he was having at that time. Defendant contends the officers effectively told her that her son's life *867 would be better if she cooperated and gave a statement. We do not believe these statements by the officers amounted to promises or threats regarding defendant's child.
Defendant argues finally that there was an overall coercive environment. The trial court did not find this to be the case. Defendant was not physically or mentally impaired, and she showed a willingness to talk to the officers. She never asked for a lawyer, asked to go home, or requested to remain silent. Defendant was never handcuffed, physically restrained or threatened, and the officers were in plain clothes. Detective Barfield told her she was free to leave and that the interview was to be entirely voluntary on her part. The officers did not accuse her of lying, and did not yell at her or show anger. Defendant requested to smoke and to use the telephone, both of which were allowed. These findings are supported by evidence in the record. In considering the totality of the circumstances, defendant was not questioned in a coercive environment and her statements will not be considered involuntary.
Defendant finally argues that her first degree murder conviction must be vacated because the "short-form" indictment returned by the grand jury did not allege that the murder was committed during the perpetration of another felony. Defendant recognizes that the North Carolina Supreme Court approved the use of such "short-form" indictments in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000). We are not at liberty to revisit this issue. See Dunn v. Pate, 106 N.C.App. 56, 60, 415 S.E.2d 102, 104 (1992), rev'd on other grounds, 334 N.C. 115, 431 S.E.2d 178 (1993)(Court of Appeals bound by decisions of the Supreme Court).
No error.
Judges WYNN and TIMMONS-GOODSON concur.
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299 S.W.2d 540 (1957)
STATE of Missouri, at the Relation of Elma BOND, Relator-Appellant,
v.
Harry SIMMONS, Walter Haeussler, and Mrs. Richard Hoffman, Constituting the Civil Service Commission of the City of St. Louis, Missouri, Respondents.
No. 29488.
St. Louis Court of Appeals, Missouri.
February 28, 1957.
*541 David M. Grant, St. Louis, for relator appellant.
James V. Frank, City Counselor, and William B. Anderson, Asst. City Counselor, St. Louis, for respondents.
*542 MATTHES, Judge.
This is a proceeding brought under the Administrative Procedure and Review Act, Chapter 536 RSMo 1949, V.A.M.S., to review the decision of the Civil Service Commission of the City of St. Louis, hereinafter called Commission, filed August 10, 1955, finding that the order of dismissal of relator from her position as elevator operator in the Civil Courts Building, St. Louis, Missouri, was reasonable, and that she had been discharged for just cause.
Following final action of the Commission, and on September 8, 1955, relator filed her petition for a writ of certiorari and review in the Circuit Court of St. Louis, Missouri. That court issued its writ of certiorari, and pursuant thereto respondents filed their return, which included a true and complete transcript of the entire record, proceedings, and evidence before the Commission. The Circuit Court entered judgment finding that the decision of the Commission was authorized by law, and on the face of the entire record was supported by competent, substantial evidence; that the finding was not arbitrary, capricious, or unreasonable, and did not involve an abuse of discretion. From this judgment relator has perfected her appeal to this court.
We note at the outset that the action of the Circuit Court in issuing writ of certiorari pursuant to application therefor was not in accord with the procedure contemplated by the Constitution, Article V, Section 22, V.A.M.S., and the applicable statute. When, as in the instant case, there is a contest of the issue involved in the proceeding before the administrative agency, judicial review of final action of such tribunal is governed by Sections 536.100 through 536.140 RSMo 1949, V.A.M.S. (Section 536.110, amended Laws of Missouri 1953, page 679); Ruedlinger v. Long, Mo.App., 283 S.W.2d 889. Certiorari is authorized, however, in noncontested cases by express provision of Section 536.105, Laws of Missouri 1953, page 678. Although the precise remedy to secure review was not pursued, the appeal will not be dismissed. Relator did, within thirty days from the decision of the Commission, take action to secure a review by the Circuit Court whereby that court acquired jurisdiction, and we will therefore consider the case as though petition for review had been filed. Ruedlinger v. Long, supra.
The substance or gist of the three points appearing in relator's brief is that the finding and order of the Commission was based upon incompetent evidence; is not supported by competent and substantial evidence; and upon the whole record is arbitrary, capricious, and unreasonable, and resulted from an abuse of discretion.
The Constitution, Article V, Section 22, V.A.M.S., provides for a direct review by the courts as provided by law of all final decisions, findings, etc., of any administrative body, and such review shall include a determination of whether the decision is authorized by law, and is supported by competent and substantial evidence upon the whole record. It is now well settled that this does not mean that the Circuit Court of Appellate Court may substitute its judgment on the evidence for that of the administrative tribunal. Rather, the court making the review is authorized to decide whether such tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. The reviewing court should adhere to the rule of deference to findings involving credibility of witnesses made by those before whom the witnesses testified. Wood v. Wagner Elec. Corp., en Banc, 355 Mo. 670, 197 S.W.2d 647; Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 S.W.2d 201; Coleman v. Hercules Powder Co., Mo.App., 284 S.W.2d 32; Ulman v. Evans, Mo.Sup., 247 S.W.2d 693; Fleming v. Holland, Mo.App., 260 S.W.2d 840; Willens v. Personnel Board of Kansas City, Mo.App., 277 S.W.2d 665.
*543 Relator's separation from service was based upon this formal charge lodged by the dismissing official:
"The employee has committed an act to the prejudice of the service. Unwilling to perform the duties of her position in a satisfactory manner. Insubordination."
The acts of commission and omission forming the basis for relator's discharge apparently were climaxed by an incident which occurred on May 19, 1955. On the morning of that day, the Honorable Robert L. Aronson, a Judge of the Circuit Court within and for the City of St. Louis, entered the Civil Courts Building on the first floor, desirous of going to his chambers located on the fifth floor. The judge testified that Mrs. Bond, relator, brought an elevator down and stopped at the first floor. She was told by Mrs. Blanche Edwards, designated as the elevator starter, and who supervised the operation of the elevators, "to take the people up over there". Instead of complying Mrs. Bond replied: "I have to go to the basement", and thereupon closed the door and descended to the basement where, according to Judge Aronson, she remained for approximately half a minute, during which time Mrs. Edwards sounded the buzzer repeatedly"a dozen times". When relator appeared again at the first floor, the judge entered the elevator, and during its ascent to the fifth floor he informed her, in response to a statement that she was trying to do her work, "No, for a long time you haven't tried to do your work, and this is the finish as far as I'm concerned." After reaching his office, Judge Aronson wrote a letter to the proper authority describing the incident. The judge's testimony was not, however, confined to the occurrence hereinabove related. He stated, "I would say that Mrs. Bond's refusal to do a full job in the carrying of passengers has been continuous. * * * she would stand at the door of her elevator on the first floor * * * mumbling that she wasn't going to go at that time, and waiting beyond the time that Mrs. Edwards, by pointing her hand, directed people to go to this side of the corridor or that; and there are instances where the button would be pushed to come down from the fifth floor, the light would flash on, the elevator goes on. Taking the next elevator, I checked to see whose car had gone by without stopping. It was Mrs. Bond. That happened many times."
Mrs. Edwards not only corroborated Judge Aronson's version of the May 19th occurrence, but supplemented it by testifying:
"Q. Was that an unusual occurrence, her closing the door and proceeding downstairs? A. It really was. If there was a passenger, I didn't see it, and if there was, she should have answered my signal.
"Q. Have you ever instructed Mrs. Bond to answer your signal? A. I have on numerous occasions.
"Q. Is that one of her duties? A. That is one of her duties to answer that signal.
"Q. That morning, on the 19th of May, did you signal her to come down? A. I signaled her when she was between the third floor, I'm sure, the first time, to direct my passengers there."
The event was also reported by Mrs. Edwards to her "superiors".
Summarizing Mrs. Edwards' testimony concerning other acts of relator relied upon to support the charge of insubordination, we find that relator objected to operating the elevators by use of the electric signals; on occasions, instead of taking passengers, she would "close her door and go up". She refused to work with Mrs. Edwards, and in one instance told her, "I'm not taking any orders from you, there is nothing you can do about it." In March, 1955, relator closed the door and ascended with the elevator without passengers. In this case Mrs. Edwards "pleaded with her and told *544 her it was a bad example for the others, * * *." Under interrogation by the Chairman of the Commission, Mrs. Edwards testified that, "* * * Mrs. Bond has constantly told me she accepted no orders from me, and she will not work with me. She accepts no orders from me * * * she'll not cooperate with me." Mrs. Edwards concluded her testimony by stating that relator, although a good operator, capable of doing a good job when she wanted to, refused for some unknown reason to cooperate with her.
By Hubert William Guth, Superintendent of the Municipal Buildings, it was shown that relator "* * * wouldn't operate the cars she was supposed to operate, she was lax on the job, and this had been going on for approximately threeI'd say three and a half years, these conditions, and she had been warned. She was called over to Mr. Baum's office in '54 and told by Mr. Baum personally, if she didn't correct these conditions she'd be dismissed". This official related that he had spoken to Mrs. Bond concerning her failure to heed signals and make stops in accordance with the signals.
Ben Hertenstein, the Building Operation Supervisor, testified that, "We had numerous complaints about her. (Mrs. Bond) I don't mean to state that every time she run an elevator we got one, but we had a lot of complaints. I had people complain about her." He pin-pointed the nature of relator's unsatisfactory performance in this manner: " * * * she would close doors in the face of passengers. She would bring her car down to the floor and open it and close it, and she'd get up on the tenth floor with her car and not operate. She'd get out of her car, she'd get on the first floor and talk over to other girls. She generally did things we just don't like the elevator operators to do in that way."
It was also established by records that relator was suspended for one day in April, 1954, because she left the elevator without official permission.
To contradict the evidence offered in support of relator's dismissal and as a defense to the charge, relator gave this version of the episode of May 19th: In bringing the elevator down she stopped at the sixth floor where Clarence Young, messenger for Honorable O. P. Owen, another Circuit Judge, entered the car. Between the sixth and first floors she did not hear the buzzer or observe any signal. Upon stopping the elevator and opening the door at the first floor, relator saw only Mrs. Edwards in the corridor. After stating "basement", she proceeded downward to that floor or level where Mr. Young left the car. Relator immediately returned to the first floor where Judge Aronson entered the elevator and was taken to the fifth floor. Relator categorically denied having "deliberately failed to cooperate with * * * Mrs. Blanche Edwards". She never told anyone she couldn't be fired; she insisted she consistently operated her elevator on signals. Relator recalled having appeared on a prior charge before the Commission in 1951, and that since that hearing she had been "especially cautious". She blamed her present dilemma upon a clique of about five other operators with whom, according to relator, Mrs. Edwards was friendly and to whom special favors were granted. In general relator's testimony may be characterized as constituting a denial of all charges leveled against her, and an assertion that she had rendered efficient service in accordance with the rules and regulations governing operation of the elevators.
Clarence Young's testimony was substantially in accord with relator's version of the incident in which he was a participant to the extent that he was the party who was taken to the basement. His purpose in going there, according to his testimony, was to take a basket of rubbish from the Judge's chambers. Young's understanding of the effective rules was that rubbish was to be taken directly to the basement. He stated he heard relator say "basement", after the elevator was stopped at the first floor and he did not see Judge Aronson standing in the lobby at that time.
*545 It was also established as a fact that three appraisals of relator's services had been made to the Department of Personnel. These reports, covering the periods of October 31, 1951, to October 31, 1952; October 31, 1952, to October 31, 1953; and November 6, 1953, to November 6, 1954, are a part of the record. They were signed by the elevator starter and Mr. Hertenstein. In each instance relator's rating was designated as "good" or "adequate", and nothing of a derogatory nature appears on any of them. Bearing upon the failure of the authors of the reports to disclose the infractions concerning which testimony was given, Mr. R. Elliott Scearce, the Director of Personnel, stated that "reprimand and disciplinary action" are reported on another form, and that it was unusual for the official making the service rating report to record thereon any remarks which could be construed as a reprimand.
Interwoven with the basic point raised by relator is the contention that the Commission's decision was based upon hearsay evidence, conclusions of witnesses, and inflammatory matter. We recognize that in dealing with hearings before an administrative official or tribunal, our courts have declared and ruled that technical rules of evidence do not control. While leading questions and other informalities may be permitted, it does not follow that the fundamental rules of evidence can be abrogated and nullified. State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, loc. cit. 209. Thus hearsay evidence and conclusions based upon hearsay do not satisfy the "competent and substantial evidence upon the whole record" requirement essential to validity of a final decision. State ex rel. De Weese v. Morris, supra, 221 S.W. 2d loc. cit. 209, and cases cited; Dittmeier v. Missouri Real Estate Commission, supra, 237 S.W.2d loc. cit. 206.
It is quite obvious that, notwithstanding an attempt by the Commission and counsel to observe the fundamental rules of evidence, hearsay testimony, voluntary statements, and conclusions by the witnesses crept into the proceeding. But it is equally apparent that in the main the evidence that was presented was competent and relevant to the issue being heard. This is demonstrated by the resume of the testimony which we have herein made.
In resolving the question before us we must adhere to the principle that the record be viewed in the light most favorable to the finding of the Commission, and consider the favorable inferences which the Commission had the right to draw from the evidence before it, and then determine whether the decision of that tribunal, even if supported by competent and substantial evidence, is contrary to the overwhelming weight of the evidence. Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623, 627; Rush v. Swift & Co., Mo.App., 268 S.W.2d 589; Szepanski v. Stephen Gorman Bricklaying Co., Mo.App., 279 S.W.2d 191.
It is clear from the evidence, the substance of which we have outlined, supra, that there was a sharp conflict therein respecting the incident of May 19, 1955, and the demeanor of relator generally bearing upon the charge of insubordination. In this situation the Commission, as the trier of the facts, was required to pass upon the credibility of the witnesses who appeared before that body, Brown v. Krey Packing Co., Mo.App., 271 S.W.2d 234; Gilden v. Dorsa Dresses, Mo.App., 160 S.W.2d 484, and had the right to accept as true the facts testified to in support of the dismissal of relator. Crawford v. A. J. Sheahan Granite Co., Mo.App., 211 S.W. 2d 52.
Since the decision of the Commission is clearly based upon an abundance of competent and substantial evidence, and is not against the overwhelming weight of the evidence, the judgment appealed from must be affirmed. It is so ordered.
RUDDY, Acting P. J., and GEORGE P. ADAMS, Special Judge, concur.
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83 F.Supp.2d 1132 (1999)
GOLDEN EAGLE INSURANCE CORPORATION, Plaintiff,
v.
ALLIED TECHNOLOGY GROUP, a corporation, et al., Defendants.
No. ED CV98-0312-RT VAPX.
United States District Court, C.D. California, Eastern Division.
March 2, 1999.
Steven M. Schuetze, Charton, Vermes & Rovenger, Santa Ana, CA, for Plaintiff Golden Eagle Insurance Corporation.
Dan L. Longo, Murchison & Cumming, Santa Ana, CA, for Defendant Allied Technology Group, a Corporation.
Troy A. Edwards, Lewis, D'Amato, Brisbois & Bisgaard, Costa Mesa, CA, for Defendants Octagon, Inc., a Corporation, and Timothy M. Collister.
Alejandro N. Mayorkas, United States Attorney, Leon W. Weidman, Assistant U.S. Attorney, Chief, Civil Division, Kevin B. Finn, Assistant U.S. Attorney, Los Angeles, CA, for Cross-Defendant United States of America.
ORDER 1) DISMISSING CROSS-COMPLAINANTS OCTAGON, INC. AND TIMOTHY COLLISTER'S FIRST AMENDED CROSS-COMPLAINT AGAINST CROSS-DEFENDANT UNITED STATES OF AMERICA AND 2) REMANDING ACTION TO STATE COURT.
TIMLIN, District Judge.
The Court has read and considered Cross-Complainants Octagon, Inc. and *1133 Timothy Collister's response to the Court's December 1, 1998 order to show cause in which Plaintiffs County of San Bernardino and Central Valley Fire Protection District joined; Defendant Allied Technology Group, Inc.'s response to the order to show cause; Cross-Defendant United States of America's oppositions/replies; and Cross-Complainants reply. Based on such consideration, the Court concludes as follows:
I.
BACKGROUND
On March 17, 1998, Jose Villareal, Martin Villareal, by and through his guardian ad litem, Anna Villareal (collectively, "Plaintiffs") filed a complaint in the Superior Court of the State of California in and for the County of San Bernardino against Allied Technology Group, Dick's Auto Salvage, Timothy Collister, Octagon, Inc., and Does I through 100 ("Defendants). According to the complaint, Martin Mendoza, who is the father of Plaintiff Martin Villareal, was killed, and Plaintiff Jose Villareal was severely injured, when a shell casing delivered to them by Defendants exploded while the two were dismantling the casing to recover scrap metal. The complaint asserts state-law claims against the Defendants for personal injury and wrongful death based on negligence, breach of warranty, and strict liability. The case was consolidated in state court with five other related cases.
On October 8, 1998, two of the four Defendants, Octagon, Inc. and Timothy M. Collister ("Cross-Complainants"), filed a first amended cross-claim ("FACC") in state court, seeking equitable indemnity, comparative indemnity, apportionment of fault, contribution and/or declaratory relief from, or as to, Roes 1-50 based on the March 18, 1997 explosion, which is the subject of the complaint against Cross-Complainants. Subsequently, Cross-Complainants served the FACC on the United States of America ("the United States"). The United States interpreted the FACC as alleging claims under the Federal Tort Claim Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), which are claims over which state courts have no subject matter jurisdiction. See id. §§ 1346(b)(1) & 1346(c); Will v. United States, 60 F.3d 656, 659 (9th Cir.1995) ("Under the FTCA, the district courts have exclusive jurisdiction over claims against the United States for injuries or losses of property caused by the negligent or wrongful act or omission of a government employee.") (emphasis added). However, rather than filing in state court a motion to dismiss the FACC as to it because of the state court's inability to exercise subject matter jurisdiction over the FTCA claim, the United States removed the FACC along with the six consolidated cases with which it is associated to the United States District Court for the Central District of California. See 28 U.S.C. § 1442(a)(1) ("section 1442(a)(1)") (authorizing removal of any civil action commenced against the United States or its agencies) (emphasis added); Nolan v. Boeing Co., 919 F.2d 1058, 1066 (5th Cir.1990) (noting that section "1442(a)(1) which authorizes the removal of a `civil action' by a federal officer or agency sued in state court permits a federal officer or agency to remove the `entire case' to federal court even though the removing party [is] a third-party defendant and only some of the claims in the case [are] asserted against the federal officer or agency"); Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965) ("[I]t is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court.") (emphasis added); cf. Murphy v. Kodz, 351 F.2d 163, 165-67 (9th Cir.1965) (holding that federal court has subject matter jurisdiction over all claims in an action removed under section 1442).
Thereafter, on December 1, 1998, this Court ordered the Cross-Complainants and the United States to show cause why the FACC should not be dismissed as against the United States for a lack of subject matter jurisdiction and the action remanded to state court. The Court specifically *1134 asked the parties to address the issue of whether the doctrine of derivative jurisdiction prohibited this Court from exercising jurisdiction over a third-party FTCA claim removed from state court pursuant to section 1442(a)(1).
II.
ANALYSIS
When an action is removed from state court by the United States pursuant to section 1442(a)(1), the jurisdiction of the district court upon removal is derivative of the state court's. In re Elko County Grand Jury, 109 F.3d 554, 555 (9th Cir. 1997) ("[B]ecause this case was removed from the state court pursuant to § 1442, our jurisdiction is derivative of the state court's jurisdiction."); see also Smith v. Cromer, 159 F.3d 875, 879 (4th Cir.1998) ("It is clear that a federal court's jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction ...."); Edwards v. United States Dep't of Justice, 43 F.3d 312, 316 (7th Cir.1994) ("The jurisdiction of the federal court upon removal, pursuant to 28 U.S.C. § 1442, is essentially derivative of that of the state court."); 14C Charles Alan Wright et al., Federal Practice and Procedure § 3727, at 170 (3d ed. 1998) ("[A] federal court cannot confer subject matter jurisdiction over a case removed under Section 1442 if none existed at the state level.").
This means that where the state court lacked jurisdiction over the claim giving rise to the removal, "the federal court acquires none, although in a like suit originally brought in federal court it would have had jurisdiction." Minnesota v. United States, 305 U.S. 382, 389, 59 S.Ct. 292, 295, 83 L.Ed. 235 (1939). Thus, federal courts must determine upon removal of an action under section 1442 whether, as an initial matter, the state court from which the action was removed had subject matter jurisdiction. 14C Charles A. Wright, Arthur R. Miller & Frank W. Elliott, Federal Practice and Procedure § 3727, at 170. If there is none, the claim giving rise to the United States's power to remove must be dismissed. See Franchise Tax Bd. v. Construction Laborers Vac. Trust, 463 U.S. 1, 24 n. 27, 103 S.Ct. 2841, 2854 n. 27, 77 L.Ed.2d 420 (1983) (noting that dismissal of the claim is a district court's appropriate course of action where the doctrine of derivative jurisdiction prevents it from exercising subject matter jurisdiction over it); Nebraska v. Bentson, 146 F.3d 676, 679 (9th Cir.1998) (noting that district court "simply gave effect to the jurisdictional realities" when it dismissed claim over which it lacked subject matter jurisdiction because of the doctrine of derivative jurisdiction).
It is clear in this case that the state court from which this action was removed lacked subject matter jurisdiction over the FTCA claim asserted, by way of the FACC, against the United States since "[u]nder the FTCA, [federal] district courts have exclusive jurisdiction over claims against the United States for injuries or losses of property caused by the negligent or wrongful act or omission of a government employee." Will, 60 F.3d at 659 (emphasis added). Because of this, the Court will dismiss Cross-Complainants' FACC against the United States.
But whereas dismissal of the FACC is required, remand of what remains of the action namely, state-law claims between non-diverse parties is not required since section 1442, in effect, gives district courts supplemental jurisdiction over the whole action removed pursuant to section 1442:
When federal parties remove an action under section 1442(a)(1), the federal court assumes jurisdiction over all the claims and parties in the case regardless of whether the federal court could have assumed original jurisdiction over the suit. If the federal party is eliminated from the suit after removal under this provision, the district court does not lose its ancillary or pendent-party jurisdiction over the state law claims against the remaining non-federal parties. Instead, the district court retains the power *1135 either to adjudicate the underlying state law claims or to remand the case to state court.
District of Columbia v. Merit Sys. Protection Bd., 762 F.2d 129, 132-33 (D.C.Cir. 1985). Indeed, the Court recognizes that in certain cases, it may be appropriate in order to effectuate the purpose of section 1442 to retain jurisdiction over an action removed pursuant to 1442 despite dismissing the claims giving rise to the United States's power to remove. See, e.g., In re Elko, 109 F.3d at 555 (affirming a district court's refusal to remand action removed pursuant to 1442 despite dismissal of claims giving rise to removal).
However, in their responses to the Court's order to show cause, the parties have not demonstrated that there are federal interests that would be jeopardized by remanding this action to state court. Cf. id. In the absence of such interests, countervailing interests of comity, federalism, and respecting the choice of a state forum by the original parties to this action strongly favor remand. See Torres v. CBS News, 879 F.Supp. 309, 321 (S.D.N.Y. 1995). Accordingly, the Court will exercise its discretion to decline to assume jurisdiction over this action and will remand it back to the Superior Court of the State of California in and for the County of San Bernardino.
III.
DISPOSITION
IT IS ORDERED THAT:
1) Cross-Complainants Octagon, Inc. and Timothy Collister's FACC against Cross-Defendant United States of America is DISMISSED.
2) The action is REMANDED to the Superior Court of the State of California in and for the County of San Bernardino.[1]
NOTES
[1] In light of the Court's disposition in this action, the Court need not, and will not, address the motion to dismiss filed by Defendants Octagon, Inc. and Timothy Collister on December 4, 1998. The Court notes also that Cross-Complainants' notice of their lodging of administrative claims against the United States has no effect on the Court's disposition in this matter since Cross-Complainants' failure to file an administrative claim prior to filing suit is not a factor relevant to the analysis of whether the doctrine of derivative jurisdiction prevents this Court from exercising subject matter jurisdiction over a claim improperly brought in state court and subsequently removed to federal court pursuant to section 1442(a)(1).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 23, 2001 Session
DAVID PATRICK PEARSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 55338 Richard R. Baumgartner, Judge
No. E2000-00438-CCA-R3-CD
May 9, 2001
The petitioner appeals from the Knox County Criminal Court’s dismissal of his petition for post-
conviction relief, by which he sought to set aside his earlier guilty pleas. On appeal, the petitioner
presses his claim that because he received ineffective assistance of counsel, his guilty pleas were not
voluntary and knowing. Finding that the services of the petitioner’s trial counsel were below the
range of competence demanded of attorneys in criminal cases and that the petitioner was thereby
prejudiced, we reverse the judgment of the post-conviction court, vacate the petitioner’s convictions,
and set aside the petitioner’s guilty pleas without prejudice to further proceedings on the underlying
charges.
Tenn. R. App. P. 3; Judgment of the Criminal Court is Reversed and Remanded.
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and JOSEPH M. TIPTON, J., joined.
Mark E. Stephens, District Public Defender; and R. Scott Carpenter and Paula R. Voss, Assistant
Public Defenders, for the appellant, David Patrick Pearson.
Michael E. Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; Randall
E. Nichols, District Attorney General; Marsha L.K. Selecman, Assistant District Attorney General;
and Jerry Hall, Special Assistant District Attorney, for the appellee, State of Tennessee.
OPINION
The petitioner, David Patrick Pearson, appeals the Knox County Criminal Court’s
dismissal of his 1994 petition for post-conviction relief. He had pleaded guilty in that court in 1990
to thirteen criminal offenses. The petitioner had no agreement with the state about submitting to the
charges or about a sentencing recommendation. The trial court imposed a maximum, Range I
sentence for each offense and ordered seven of the sentences to be served consecutively, which
resulted in an effective sentence of 80 years. This court reversed in part because of a variety of
sentencing errors such that the petitioner’s effective sentence was reduced to 77 years incarceration.
See State v. David Patrick Pearson, No. 03C01-9103-CR-87 (Tenn. Crim. App., Knoxville, Apr. 9,
1992). On Rule 11 review by the supreme court and in a case of first impression, the petitioner’s
first degree burglary conviction was remanded for calculation of the sentence both before and after
the effective date of the Sentencing Act of 1989 and for imposition of the lesser sentence of the two.
State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993). The petitioner complains in his post-
conviction collateral attack that his 1990 guilty pleas are invalid because various actions and
omissions of trial counsel deprived him of constitutionally effective assistance of counsel. Three
years after the post-conviction petition was filed, an evidentiary hearing was conducted. On January
25, 2000, nearly three years after the hearing, the post-conviction court dismissed the petition. This
appeal followed. Finding that the services and advice of petitioner’s trial counsel were outside the
range of competence demanded of attorneys in criminal cases and that the petitioner was thereby
prejudiced, we reverse the judgment of the post-conviction court, vacate the convictions, and set
aside the petitioner’s 1990 guilty pleas.
A. The Petitioner’s Guilty Pleas and Sentencing
The petitioner pleaded guilty to assaulting, raping, and stealing from numerous
Knoxville area victims in 1989 and 1990. The stipulated facts underlying the petitioner’s guilty
pleas and sentencing have been succinctly detailed in this court’s earlier opinion from which we
borrow.
On March 31, 1989, Ms. KP was sleeping in her residence in
Knoxville. Her boyfriend, WB, was present with her and was also
asleep. At approximately 1:30 AM Ms. P woke up to find the
[petitioner] standing over her bed with his shorts pulled down. He
attempted to climb on top of her and place his body between her legs,
but Ms. P began screaming and fighting. Apparently, petitioner was
unaware that Mr. B was in the bed also. The ruckus awakened Mr.
B. A struggle ensued between [petitioner] and Mr. B, during which,
the [petitioner] bit Mr. B several times on the shoulder and back.
[Petitioner] then fled.
See David Patrick Pearson, slip op. at 1-2 (footnote omitted).
On February 13, 1990, Ms. AI was in the bathroom of her apartment
in Knoxville. The [petitioner] entered her apartment and forced his
way into the bathroom. He attacked Ms. I and pushed her into the
bathtub with the intent of raping her. While the two were struggling,
he hit her in the mouth, injuring her; but she fought back vigorously
and bit him on the thumb. During this struggle, the [petitioner]
placed his hand between Ms. I's legs and penetrated her vagina with
-2-
his fingers. After further screaming and fighting by the victim, the
[petitioner] left her apartment.
Id., slip op. at 2-3.
On the evening of February 28, 1990, Ms. FH was taking a nap in her
apartment in Knoxville. At the time, her roommate, MW, was
visiting a neighbor. Ms. H woke up to find [petitioner] rubbing
against her leg. Ms. H began screaming and attempted to flee, but the
[petitioner] began to violently assault her. He struck and bit her
numerous times and choked her until she was nearly unconscious. .
. . At one point she freed herself from the [petitioner], but he tackled
her and pulled her back into the bedroom. [Petitioner] penetrated Ms.
H with his fingers and his penis. He also forced his penis into her
mouth. The [petitioner] also placed his face in her vaginal area and
licked and kissed her there.
Id., slip op. at 3.
During this series of horrible crimes, the victim's roommate,
MW, entered the apartment. The [petitioner] ran to the front area of
the apartment and grabbed Ms. W's hair. A struggle ensued, and the
[petitioner] chased Ms. W out the front door of the apartment.
Holding on to Ms. W's hair, the [petitioner] threw her down to the
steps and into some bushes.
Id., slip op. at 4.
On March 15, 1990, Ms. SD returned to her apartment and noticed a
broken window. When she entered her apartment she observed the
[petitioner] inside. The [petitioner] removed a camera, some money
and other items as he fled the apartment.
Id., slip op. at 4.
[T]he [petitioner] was arrested on March 15, 1990, [and] his
automobile was searched. Found therein was property stolen from at
least three different homes. On January 8, 1990, Mr. GG returned to
his apartment in Knoxville to find that his apartment had been
burglarized during his absence. A metal flask taken during this
burglary was one of the items found in the [petitioner’s] car. On
February 20, 1990, the apartment of JS had been burglarized and two
very valuable rings taken during this burglary were found in the
-3-
[petitioner’s] car. . . . On February 26, 1990, Mr. DP returned to his
home to discover that his apartment had been burglarized. A pair of
sunglasses taken during this burglary was found in [petitioner’s] car.
Id., slip op. at 2.
Knoxville attorney Ellery E. Hill, Jr. was appointed to represent the petitioner. It is
Hill’s effectiveness that has been questioned. On September 26, 1990, the petitioner appeared for
trial on the aggravated burglary, aggravated rape, and assault charges involving Ms. H and her
roommate Ms. W. The petitioner entered a not-guilty plea, and jury selection commenced and
continued for approximately three hours, at which time the trial court adjourned for lunch.
After the recess, Hill announced that the petitioner desired to plead guilty to all of the
non-merging charged offenses, including offenses alleged in an indictment returned by the Knox
County grand jury that same day. Hill also stated that the petitioner wanted to plead guilty to
additional charges, yet to be determined. The petitioner had no agreement with the state about
submitting to the charges or about a sentencing recommendation. The trial court postponed jury
selection and conducted a submission hearing. For each offense, the trial court advised the petitioner
of the authorized term of imprisonment, the release eligibility percentage, and the possibility of
consecutive sentencing. The trial court further advised the petitioner of his trial and appellate rights
and that by pleading guilty he was surrendering those rights.
When the trial court inquired whether there had been any inducements for the guilty
plea, the petitioner then responded, “Yes,” and the following transpired.
THE COURT: What have they promised you?
DEFENDANT: Thirty years.
THE COURT: Sir?
DEFENDANT: Thirty.
THE COURT: Who has promised you thirty years? (Pause) If
you’ve been promised anything –
DEFENDANT: No, I ain’t.
THE COURT: – in regard to sentencing, we need to talk about
that?
DEFENDANT: No, ain’t nobody promised me nothin’.
-4-
The trial court pressed further, but the petitioner’s trial counsel interrupted and
suggested that what his client might “ha[ve] in mind” is the thirty percent release eligibility for a
Range I standard offender. The remainder of the submission hearing was unremarkable. The
petitioner admitted his guilt to the charged offenses. He answered in the affirmative that he was
satisfied with his counsel’s services and that they had discussed the state’s evidence and possible
defenses. The trial court accepted the pleas, found the petitioner guilty, and scheduled a sentencing
hearing.
A presentence investigation was conducted. The petitioner blamed his situation on
marital problems, and the presentence report noted that the petitioner would only discuss the March
15, 1990 burglary. The petitioner told the presentence investigator that he needed money to buy
drugs to kill himself “so I broke into someones [sic] apartment[.] I got cauht [sic] an [sic] took to
jail then I was accused of other crimes.” Shortly before his sentencing hearing, the petitioner wrote
a letter to the trial judge, which was made an addendum to the presentence investigation report. In
the letter, the petitioner complained that his attorney did not do anything for him and that his attorney
“begged me to cop out.” The petitioner explained in his letter that he told his attorney “that I didn’t
want to cop out,” and his attorney “got very upset and [told] me that the D.A. was going to stomp
him.”
The petitioner appeared for sentencing on November 15, 1990. At the beginning of
the hearing, the petitioner pleaded guilty to new first degree burglary and assault charges and agreed
to be sentenced on them that day. After a series of monosyllabic yes/no responses from the petitioner
to the guilty plea litany of questions, the trial court brought up the petitioner’s letter complaining
about defense counsel and asked the petitioner, “Do you wish to discuss that further?” The petitioner
said, “No.” The trial court impressed upon the petitioner the seriousness of the situation and again
offered the petitioner the opportunity to be heard. The petitioner’s only response was a negative
“huh-uh.” The trial court thereafter accepted the petitioner’s guilty plea, heard arguments from the
parties, and imposed an effective sentence of 80 years for all offenses.
B. Post-conviction Hearing
Attorney Hill died sometime in 1996, after the petitioner filed for post-conviction
relief but before the evidentiary hearing was conducted in 1997. Six witnesses testified: the
petitioner, Knoxville attorney Kenneth Irvine, Jr. who represented the petitioner on his earlier
sentencing appeals, a paralegal working for the custodian who was designated to maintain Hill’s
legal files, Detective Mike Hyde who was the lead investigator on the petitioner’s cases, former
Assistant District Attorney General David Jennings who prosecuted the cases, and former Knox
County Criminal Court Judge Randall E. Nichols who accepted the pleas.
According to the post-conviction testimony, Hill’s legal career was short lived. It is
believed that he was licensed to practice in 1990, so the petitioner would have been one of his earlier
clients. By the time Hill died in 1996, his substance abuse problems were apparent. Mr. Nichols
thought that Hill had a bright future in the beginning, but he testified that there was “no question”
-5-
but that he later “lost [] confidence in Mr. Hill.” From May through November 1993, Hill’s law
license was suspended for failure to respond to multiple complaints of misconduct lodged with the
Board of Professional Responsibility of the Supreme Court of Tennessee.1 Hill continued to practice
law, however, during the suspension period. By order entered January 21, 1994 and after Hill
submitted a conditional guilty plea,2 the supreme court publicly disciplined Hill based on multiple
charges of neglecting client matters, failing to adequately communicate with his clients, and failing
to adequately communicate with the Board of Professional Responsibility. 3
After Hill’s death, Knoxville attorney Robert W. Ritchie was appointed by the
supreme court to take possession and maintain custody of Hill’s legal files and to contact Hill’s
former clients about their files. Hill’s files on the petitioner’s cases were introduced as exhibits at
the post-conviction hearing. Records concerning the disciplinary complaints by other clients and the
suspension orders were included.
Knoxville attorney Kenneth Irvine, Jr. became involved with the petitioner when this
court appointed him to take over the petitioner’s sentencing appeal. Attorney Hill had filed a notice
appealing the petitioner’s sentences, but thereafter Hill abandoned any further representation. When
the petitioner’s appellate brief was not filed, this court entered show cause orders directed to Hill on
two occasions and also issued an attachment warrant for Hill.
As Mr. Irvine discovered, locating Hill proved to be difficult. When he did, Mr.
Irvine requested that Hill provide his files on the petitioner’s cases. Although Hill promised to get
his files, he never did so. At one point, Mr. Irvine asked Hill about the issues that he had intended
to pursue on appeal. Hill stated that he had planned to file an Anders brief.4
Mr. Irvine testified at the post-conviction hearing that once he started researching the
appeal, he discovered many significant sentencing issues. Among the more blatant problems were
the petitioner’s guilty plea, in one instance, to a misdemeanor charge for which the statute of
limitations had expired and the erroneous classification of one of the theft convictions as a Class D,
instead of a Class E, felony. Mr. Irvine’s efforts resulted in a three-year sentence reduction on two
1
Tenn. R. S. Ct. 9, § 4.2 (all suspensions regardless of duration shall be public).
2
Tenn. R. S. Ct. 9, § 16.1 (procedure for discipline by consent based on tender and acceptance of conditional
guilty plea).
3
Tenn. R. S. Ct. 9, §18.10 (“The Board shall cause a notice of the disbarment, suspension, disability inactive
status, or interim suspensio n to be giv en to all state jud ges, to a ne wspap er of gen eral circulatio n in each cou nty in which
the respond ent atto rney maintained an office, . . . and in such other publications as the Board may determine to be
appropriate.”).
4
See Ande rs v. California , 386 U.S. 738, 87 S. Ct. 1396 (1967) (setting forth procedure to be followed when
appointed counsel is of the considere d opinion that there is no b asis for an app eal), limited by Smith v. Robbins, 528 U.S.
259, 120 S. Ct. 746 (2000) ( Anders procedure is not obligatory; it is merely one method of satisfying constitutional
requirements).
-6-
of the petitioner’s convictions, the dismissal of the stale misdemeanor charge, and the correction of
one theft conviction to a Class E felony. Following review by the supreme court and that court’s
remand for resentencing on the first degree burglary conviction, the petitioner’s effective sentence
was further reduced to 75 years.
In his post-conviction testimony, Mr. Irvine opined “that from what I was able to see,
[] there was a great level of incompetence and additional things, like trying to get the file. . . . So
the things that I was able to see suggested that it was not handled competently.” Mr. Irvine based
his opinion on many considerations such as (1) Hill’s ignorance about or inattention to offense
classifications and applicable statutes of limitations; (2) Hill’s acquiescence in having his client
plead blindly to charges that had not yet been brought and the specifics of which were unknown; (3)
Hill’s failure to file a sentencing memorandum on the petitioner’s behalf even though the trial judge
had invited the parties to do so; (4) Hill’s inadequate trial preparation shown by his fee applications
for compensation; and (5) Hill’s clear intention not to pursue the petitioner’s sentencing appeal. The
petitioner told Mr. Irvine that it became obvious to him that Hill was not prepared when the trial
began and that Hill was “winging it.”
Mr. Jennings was called as a witness by the petitioner at the post-conviction hearing.
He testified that he firmly believed that he had strong cases on each of the charges against the
petitioner. The case on which trial began was, in Mr. Jennings’ opinion, the most egregious from
the standpoint of injury to the victims, and both victims had identified the petitioner in a lineup. Mr.
Jennings recalled telling Hill that he was not going to make an offer on the cases; rather, he was
going to try to “max and stack” everything he could.
Mr. Jennings did not know what Hill had done to investigate the cases. Hill’s files,
however, contain copies of the victims’ statements taken by the police and other discovery-type
records. Detective Hyde testified that he mailed the witness statements to Hill, and Mr. Jennings
explained that he practiced “open file” discovery for the most part. To the post-conviction court it
was “obvious” that Hill had struck an agreement to waive preliminary hearings on the charges in
exchange for the police files on the cases. Although Hill’s files contain copies of forensic reports,
some of which reflect inconclusive results, what use, if any, Hill made of the reports and findings
is unknown.
At the post-conviction hearing, the state called Mr. Nichols who testified that, as the
trial judge who conducted the petitioner’s submission hearings, it was clear to him that the petitioner
knew what he was doing. Mr. Nichols recalled the letter that the petitioner wrote to him before being
sentenced. Mr. Nichols testified that, although given the opportunity at sentencing, the petitioner
did not want to discuss whatever complaint he had.
The petitioner’s testimony at the evidentiary hearing, as the post-conviction court
observed in its order dismissing the post-conviction petition, was “of little value due to the
petitioner’s inability to articulate his complaints against his trial attorney.” The most cogent and
-7-
coherent account that the petitioner gave was when he was asked what he remembered about the day
he entered his pleas.
Well, he took me back there in the back. He had done told my
mother and my aunt to tell me it would be best if I pled guilty, you
know, to these charges; and, if I made the State take it to trial then
they was going to give me three hundred years. And so they said, if
I signed these papers that I would get fifteen years – well, he said he
talked to the judge about it, and – uh – he said that the D.A. would
probably ask for the maximum. That was twenty-five years, and I
asked him, was he sure? And he said yeah.
(Emphasis added).
After the petitioner rested his case, the state recalled David Jennings. Jennings
corroborated the petitioner’s testimony insofar as Hill’s inaccurate advice relative to sentencing.
Jennings related that after the plea submission, Hill came up to him outside the courtroom,
and he made a statement to me that frankly bothered me, but here is
what he said. And I have told Ms. Selecman about this since day one,
by the way. He said, “David, you can’t believe how hard it was for
me to convince him he needed to plead guilty, but when I finally told
him the jury would sentence him to three hundred and sixty years, he
realized that he had better go on and do it.” If he said that to him, that
is obviously two misstatements of the law. He wasn’t looking at that
much time; the jury hadn’t sentenced him, but he did make that
statement to me.
(Emphasis added).
The post-conviction court credited the proof that Hill told the petitioner that if he
persisted in going to trial, the jury would sentence him to 300 years. The post-conviction court
further found that Hill’s sentencing advice was “erroneous and deficient.” Nonetheless, the post-
conviction court concluded that in light of overwhelming evidence of the petitioner’s guilt, no
prejudice had been demonstrated.
C. Controlling Law
Pearson’s petition for post-conviction relief was filed in 1994, after this court and the
supreme court had reviewed his convictions and sentences. The petition, therefore, is governed by
our former post-conviction statutory scheme, Tennessee Code Annotated sections 40-30-101 to -124
(repealed 1995), which was replaced in 1995 with the current Post-Conviction Procedure Act,
-8-
Tennessee Code Annotated sections 40-30-201 to -222 (1997). See King v. State, 989 S.W.2d 319,
323 (Tenn. 1999); Owens v. State, 13 S.W.3d 742, 766 (Tenn. Crim. App. 1999).
One significant difference between the current Act and the former statutes is the
burden of proof that petitioners must meet. Under the current Act, the standard is “clear and
convincing evidence,” Tenn. Code Ann. § 40-30-210(f) (1997), whereas under the pre-1995 statutes
a petitioner’s burden of proving factual allegations was by a preponderance of the evidence. See
State v. Benson, 973 S.W.2d 202, 207 (Tenn. 1998). Under either version, however, the post-
conviction court’s factual findings are reviewed de novo, consistent with the Rules of Appellate
Procedure, with a presumption of correctness unless the evidence preponderates otherwise. See
Jehiel Fields v. State, — S.W.3d —, — , No. E1999-00915-SC-R11-PC, slip op. at 5 (Tenn.,
Knoxville, Mar. 15, 2001). The post-conviction court’s conclusions of law receive purely de novo
review with no presumption of correctness. See id., slip op. at 6-7.
D. Ineffective Assistance of Counsel
The petitioner contends that his guilty pleas were not voluntary and knowing because
they resulted from ineffective assistance of counsel. This complaint is premised on a Sixth
Amendment right to counsel infringement, not a Fourteenth Amendment general due process
violation. See Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (guilty plea does not comport
with due process “if it is the product of ‘[i]gnorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats’”) (quoting Boykin v. Alabama, 395 U.S. 238, 242-43,
89 S. Ct. 1109, 1712, (1969)).
When a post-conviction petitioner seeks relief on the basis of ineffective assistance
of counsel, he must establish that the service rendered or the advice given was below "the range of
competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Also, he must show that the deficiencies "actually had an adverse effect on the defense."
Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 2067 (1984). Should the petitioner
fail to establish either factor, he is not entitled to relief. See id. at 697, 104 S. Ct. at 2069. “The
Strickland standard has been applied to the right to counsel under Article I, Section 9 of the
Tennessee Constitution.” Michael E. Christian v. State, No. E2000-00922-CCA-R3-PC, slip op. at
9 (Tenn. Crim. App, Knoxville, June 24, 2000); see State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).
The scrutiny of counsel's performance must be "highly deferential," and the reviewing
court must refrain from concluding "that a particular act or omission of counsel was unreasonable"
merely because the strategy employed was unsuccessful. Strickland, 466 U.S. at 689, 104 S. Ct. at
2065. "A fair assessment," the United States Supreme Court has said, entails making every effort
to "eliminate the distorting effects of hindsight" and to evaluate the "conduct from counsel's
perspective at the time." Id., 104 S. Ct. at 2065. The court promulgated a "strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance." Id., 104 S. Ct.
at 2065.
-9-
In the petitioner’s situation, when there is a claim that ineffective assistance of
counsel resulted in a guilty plea, the two-part Strickland v. Washington test is modified slightly.
In the context of guilty pleas, the first half of the Strickland v.
Washington test is nothing more than a restatement of the standard
of attorney competence already set forth in Tollett v. Henderson, [411
U.S. 258, 93 S. Ct. 1602 (1973)], and McMann v. Richardson, [397
U.S. 759, 90 S. Ct. 1441 (1970)]. The second, or “prejudice,”
requirement, on the other hand, focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the
plea process. In other words, in order to satisfy the “prejudice”
requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370 (1985); see Hicks v. State, 983 S.W.2d
240, 246 (Tenn. Crim. App. 1998) (petitioner must show prejudice by demonstrating that he would
not have pleaded guilty but would have insisted upon going to trial).
The modified prejudice standard is necessary because there can be no presumption
of reliability “to judicial proceedings that never took place.” Roe v. Flores-Ortega, 528 U.S. 470,
483, 120 S. Ct. 1029, 1038 (2000). Ineffective assistance, in the guilty plea context, deprives an
accused of much more than a fair and reliable trial; it deprives an accused of the judicial proceeding
altogether. Id., 120 S. Ct. at 1038. As a result, the petitioner is not required to demonstrate that, had
he proceeded to trial, he likely would have fared better than he did by pleading guilty; that kind of
evidence, nevertheless, can be persuasive that he would have insisted on his right to have a jury
determine his guilt of the charges. See Hill v. Lockhart, 474 U.S. at 59, 106 S. Ct. at 370 (“In many
guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts
reviewing ineffective-assistance challenges to convictions obtained through a trial.”). This same
prejudice standard applies when counsel’s deficient performance deprives a defendant of an appellate
judicial proceeding. See Roe v. Flores-Ortega, 528 U.S. at 485-86, 120 S. Ct. at 1039-40 (defendant
required to demonstrate that, but for counsel’s deficient conduct, he would have appealed; evidence
of nonfrivolous grounds for appeal or that defendant had expressed desire to appeal will often be
relevant to prejudice inquiry).
The petitioner claims that he forfeited his right to a trial because when the trial began,
Hill had not prepared and was “winging it” and because Hill misrepresented to him the sentencing
outcome of a jury trial. The post-conviction court made no specific findings about Hill’s preparation
other than noting that Hill’s files contained “virtually all discovery” possessed by the state. We do
not have the benefit of Hill’s testimony, and no witnesses came forward at the post-conviction
hearing to say that Hill could have, but did not, interview them or subpoena them for trial. The
petitioner’s testimony, moreover, was not helpful. Even so, we have serious reservations whether
Hill’s preparation was within the range of competence demanded of attorneys in criminal cases.
Hill’s inaction in the face of a statute of limitations bar to one offense and of a wrong classification
-10-
for another offense suggests a ignorance of or indifference to fundamental aspects of Tennessee
criminal law. Moreover, there is evidence of a pattern of neglect and inattention by Hill to legal
matters, which resulted in the suspension of his law license. Hill entered a conditional guilty plea
to multiple charges filed by disciplinary counsel alleging that he had neglected many client matters
and had failed to adequately communicate with clients. Hill’s abandonment of the petitioner’s
earlier sentencing appeal is consistent with his pattern of neglect.
Assuming that Hill was unprepared for the petitioner’s trial, the petitioner still must
demonstrate prejudice by making the connection between this particular deficiency and his decision
to forego a trial. We are not convinced that the petitioner has mustered sufficient evidence. In
particular, he has not shown why Hill’s alleged lack of preparation did not dissuade him much earlier
from pleading not guilty and embarking on a trial. The record on appeal does not contain a transcript
of the voir dire proceedings, and we cannot say that it objectively appears that the petitioner’s
resolve to continue with his trial was eviscerated by Hill’s poor advocacy during jury selection.
On the other hand, this appeal comes before us with the trial court’s credibility
determination that Hill did, in fact, tell the petitioner that if he insisted in going to trial, he would be
sentenced by the jury to 300 years (or 360 years, according to Mr. Jennings). Based on that finding,
the trial court concluded that Hill’s “performance in advising the petitioner relative to the manner
of sentencing and appropriate sentence ranges was erroneous and deficient.” We find nothing in the
record that preponderates against the trial court’s factual finding that the advice was given.
Moreover, the trial court’s legal conclusion that Hill’s advice was erroneous and deficient is
unquestionably correct.
Despite Hill’s bad advice, the post-conviction court denied relief in this case. “There
was,” according to the post-conviction court, “absolutely overwhelming evidence of the petitioner’s
guilt presented at the submission hearing. Simply put the petitioner has failed to prove that, but for
counsel’s deficient performance, his case would have resulted in a more favorable outcome.”
(Emphasis added.) Because the post-conviction court applied an incorrect prejudice standard, we
reverse the denial of the petition for post-conviction relief. In addition, because the record
demonstrates a reasonable probability that, but for Hill’s eleventh-hour threat of imprisonment for
three centuries, the petitioner would not have pleaded guilty and would have insisted that his trial
continue, we remand with directions that the petitioner’s 1990 guilty pleas be set aside without
prejudice to further prosecution or proceedings on the underlying offenses.
The telling point is not that because of overwhelming evidence of guilt the petitioner
should have pleaded guilty if properly advised. Rather, as recognized in Walton v. State, 966 S.W.2d
54, 55 (Tenn. Crim. App. 1997), “Even if counsel’s advice was erroneous but, nevertheless, the
[defendant] would have been wise to plead guilty, a defendant has the right to make a knowing,
unwise decision. This Court, or any court for that matter, cannot protect defendants from themselves
when it comes decision time.”
Here, we need not speculate whether, but for Hill’s deficient advice, the petitioner
would have insisted on going to trial – the prejudice prong of Hill v. Lockhart. The petitioner’s trial
-11-
already was underway when he changed his plea, and he complained to the trial judge by letter before
sentencing that he had not wanted to “cop out.” Also, the petitioner’s case has an unusual feature
relevant to the prejudice inquiry. Assistant District Attorney General Jennings testified that he
communicated to Hill his intent to “max and stack” the petitioner’s charges and that he would not
make an offer on the cases. Under these circumstances, there was little incentive for the petitioner
to plead blind rather than insist on a trial. Experience teaches that no trial is a sure winner or a certain
loser; juries can, and do, occasionally reach results that seem curiously at odds with the evidence.
Had Hill advised the petitioner that he could come out no worse by going to trial than
by pleading without an agreement, the petitioner reasonably could have insisted on “taking his
chances” with a jury. Hill, however, distorted the options to make it appear that, if convicted at trial,
the defendant would come out much worse than if he pleaded guilty. Pleading guilty, therefore, was
falsely portrayed as having distinct advantages over going to trial. The petitioner’s plea, we believe,
was the result of one part ignorance, one part coercion, and one part blatant threat – all of which can
be traced directly to Hill’s ineffective assistance of counsel.
In light of the foregoing and the record as a whole, we reverse the judgment of the
post-conviction court, vacate the petitioner’s convictions, and set aside the petitioner’s 1990 guilty
pleas without prejudice to further proceedings on the charges.
__________________________________________
JAMES CURWOOD WITT, JR., JUDGE
-12-
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 1, 2005
FOR THE FIFTH CIRCUIT
__________
Charles R. Fulbruge III
Clerk
No. 04-40285
Summary Calendar
__________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TODD W. ALTSCHUL,
Defendant-Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
(No. 1:02-CR-137-ALL)
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Todd W. Altschul. See United States v. Altschul,
115 Fed. Appx. 712 (5th Cir. 2004). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005). See Altschul
v. United States, — U.S. —, 125 S. Ct. 1955 (2005). This court requested and received
supplemental letter briefs addressing the impact of Booker. Altschul argues that the district court
erroneously based his sentence on facts that were neither admitted by him nor found by the jury. Our
*
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.
-2-
review is for plain error due to his failure to raise an appropriate objection in the district court. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, — U.S. —, 126 S. Ct. 43
(2005).
To establish plain error, Altschul must show that there is error, that it is cl ear, and that it
affects both his substantial rights and the integrity of the proceedings. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732–33 (5th Cir. 2005), cert. denied, — U.S. —, 126 S. Ct. 267
(2005). Altschul has met the first and second prongs of this test because the district court based his
sentence upon facts that were neither admitted by him nor found by the jury. See Mares, 402 F.3d
at 521. Nevertheless, Altschul is not entitled to relief, as the record does not show that he likely
would have received a more lenient sentence if the district court had acted under an advisory
sentencing scheme. See Mares, 402 F.3d at 521. Altschul thus has not shown that this error affected
his substantial rights. See id. Because nothing in the Supreme Court’s Booker decision requires us
to change our prior opinion in this case, we reinstate that opinion. The judgment of the district court
is AFFIRMED.
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} |
32 Md. App. 685 (1976)
363 A.2d 598
GERALDINE WILLIAMS
v.
JOHN F. WILLIAMS.
No. 1268, September Term, 1975.
Court of Special Appeals of Maryland.
Decided September 16, 1976.
The cause was argued before MOYLAN, MOORE and MASON, JJ.
Irwin B. Lipman for appellant.
Joel I. Hoffman for appellee.
MOORE, J., delivered the opinion of the Court.
*686 The issue for decision on this appeal is whether the Chancellor erred in dismissing with prejudice a wife's bill of complaint in a matrimonial cause, pursuant to Md. Rule 422, because of her failure to depose. Upon the facts of record, we find an abuse of discretion and, therefore, we reverse the decree from which the appeal was taken.
I
On July 22, 1975, Geraldine Williams, plaintiff-appellant, filed a bill of complaint for a divorce a vinculo matrimonii against John F. Williams, then a resident of Burke, Virginia, in the Circuit Court for Anne Arundel County on grounds of desertion and abandonment and adultery. On October 31, 1975, the court passed a pretrial order[1] setting a trial date for November 24, 1975, and containing, inter alia, the following provision:
"Discovery under the Maryland Rules will not be permitted after November 15, 1975. All discovery shall have been completed by that date."
The order also noted that the husband's answer to the bill of complaint conceded that he had abandoned his wife, and that she was a fit and proper person to receive custody of the children.[2]
On November 24 counsel for the husband moved to dismiss the wife's bill under the provisions of Md. Rule 422 *687 b.3.[3] on the grounds that he had been unable to secure her deposition concerning certain property issues relative to the divorce notwithstanding the fact that it had been scheduled three times. The record reveals, however, that the first scheduled date, August 29, 1975, was postponed by agreement at the request of her attorney. The second date, October 7, 1975, was continued at the request of the husband's attorney. The third date, November 10, 1975, was preceded by a settlement conference on November 7 attended by Geraldine but not John and it appeared that the negotiations were meeting with some success. At all events, both counsel agreed to continue Geraldine's deposition until November 17, 1975, and, under date of November 12, 1975, John's counsel wrote to the trial judge, stating in part:
"Additionally after a meeting with Mr. Lipman, we have agreed to postpone the plaintiff's deposition until November 17, 1975.
Your pre-trial limits discovery to November 15, 1975. If it will be required, I would appreciate your amending your order to accommodate this date inasmuch as the original deposition date was scheduled for November 10th but the November 17th date appears to be more convenient for all parties. If there are any problems with any of the matters set forth above, I would appreciate your letting me know."
At about that juncture, Geraldine notified her attorney that she desired representation by other counsel. Her *688 counsel advised John's of this development and that her new counsel would undoubtedly desire to be heard as to the time and place of her deposition. On November 17, John's counsel moved to continue the trial, referring to Geraldine's decision to engage another attorney and that he wished to take her deposition before trial. Geraldine's lawyer, who was in fact never replaced, did not appear in court on November 21, the date of the hearing on the motion for continuance, but notified the court that he did not oppose the motion.
There is no transcript of the November 21, proceeding.[4] However, the motion to dismiss, filed on November 24, included the following assertions:
"4. That on November 21, 1975 the Honorable Judge W. Harvey Beardmore instructed the defendant to file this Motion to Dismiss [pursuant to Rule 422].
"5. That although defendant would prefer to continue this matter for a reasonable length of time, with instructions to the plaintiff to appear at a deposition scheduled for a day certain, defendant hereby complies with the request of the court and files this Motion to Dismiss."
It was also represented in the motion that the husband had been caused to expend $150 in counsel fees and compensation in that amount was requested.
Geraldine, her original counsel and her witnesses were present in court on November 24, 1975, the trial date specified in the pretrial order and the date on which the motion to dismiss was filed. (Geraldine's counsel did not receive a copy of the motion until he appeared in the courtroom.) A partial transcript of the proceedings on November 24, 1975, appended to appellant's reply brief, is as follows:
"COURT: Well, I'm willing to consider this, I'm willing to refer it to the Master if both parties *689 consent to it. Otherwise I'm inclined to dismiss it with prejudice.
MR. LIPMAN [Geraldine's counsel]: Well, frankly, Your Honor, I think the Master could probably handle it. I hope that the other side will agree.
COURT: What's your position, Mr. Hoffman?
MR. HOFFMAN [John's counsel]: If the court please, I would prefer the court to hear this matter; and I don't think I can accede to that.
COURT: All right then. The court has considered this matter and bears in mind that its pretrial order bore a cutoff date for discovery of November 15, 1975. Previous dates and there were no exceptions for that. It explicitly stated so in the pretrial order, notwithstanding the parties agreed to a deposition of the Plaintiff on November 17th and the court can't understand why, but apparently it was because Plaintiff was contemplating new counsel. Well, if that's the case, then the genesis for this problem arises from the Plaintiff's standpoint not from the Defendant's standpoint. The Plaintiff has known since the date of the pretrial order, which was October 31, 1975 that this matter was set explictly for November 24, 1975 at ten a.m. and counsel were informed at that time that the court was going to hold to that schedule.
Now the court's schedule has been disrupted by the failure of this case to go forward, to be prepared at the time, and the court has instructed counsel for the Defendant to invoke Rule 422 of the Maryland Rules. It finds that the Plaintiff did not appear at the deposition as scheduled, and, therefore, the court is going to dismiss the action with prejudice."[5] (Emphasis added.)
*690 Appellee's counsel had submitted an Order of Dismissal with the motion. The Chancellor signed that Order and added the words "with prejudice" by interlineation, so that the Order read, "[T]he above referenced action is dismissed with prejudice...." Payment of $150 counsel fees by Geraldine was also ordered.
On this appeal, Geraldine assails the Chancellor's Order of Dismissal on five separate grounds. While we find it unnecessary to discuss each of them, we agree with her pervasive thesis that the Order appealed from was improper and must be reversed.
II
First, we observe that the husband's motion to dismiss incorrectly cited Md. Rule 422 b.3. as its authority. Rule 422 b is entitled "Failure to Comply With Order for Discovery." Here, no discovery order had been entered.[6]See Evans v. Howard, 256 Md. 155, 259 A.2d 528 (1969). The applicable rule was Rule 422 c., bearing the title, "Failure of Party to Attend or Serve Answers to Interrogatories or Respond to Request for Inspection." Rule 422 c.1. is designated "Motion Grounds for Order" and provides in pertinent part:
"If a party ... fails to appear before the officer who is to take his deposition, after being served with a proper notice, ... the court in which the action is pending on motion may make such orders in regard to failure as are just, and among others it may take any action authorized under subsections 1. [Matter Taken as Established], 2. [Prohibiting Claims, Defenses or Evidence] and 3. [Striking Pleadings Stay Dismissal Judgment by Default] of Section b. of this Rule."[7]
*691 It is well settled that the application of such sanctions as are provided in Rule 422 is within the sound discretion of the trial court. Evans v. Howard, supra; Tydings v. Allied Painting & Decorating Co., 13 Md. App. 433, 283 A.2d 635 (1971). As stated by Judge Digges for the Court of Appeals in Mason v. Wolfing, 265 Md. 234, 236, 288 A.2d 880 (1972):
"In this State, a trial judge has a large measure of discretion in applying sanctions for failure to adhere to the discovery rules. Even when the ultimate penalty of dismissing the case or entering a default judgment is invoked, it cannot be disturbed on appeal without a clear showing that this discretion was abused."
As for the circumstances where the "ultimate penalty" may properly be imposed, Chief Judge Hammond observed in Lynch v. R.E. Tull & Sons, Inc., 251 Md. 260, 261, 247 A.2d 286 (1968):
"There have been suggestions that this ultimate sanction usually will be invoked only where the failure is wilful or contumacious [citing cases], but the power of the court to act is not thus limited and there may be other occasions when this gravest sanction can properly be invoked." (Emphasis added.)
Examination of leading Maryland cases involving discovery, where an action was dismissed or a default judgment or decree pro confesso was entered, reveals that in each instance the party against whom this "gravest sanction" was imposed had been guilty of conduct markedly different from that present here. For example:
In Pfeiffer v. State Farm Mutual Automobile Insurance Co., 247 Md. 56, 230 A.2d 87 (1967), a suit for damages resulting from the insurer's denial of coverage under an automobile liability insurance policy, plaintiff repeatedly answered defendant's interrogatories tardily and in an insufficient and evasive manner. Defendant's exceptions to the *692 answers were twice sustained. The trial court informed plaintiff that his cause would be dismissed if he did not submit adequate answers within fifteen days. When he did not do so, a non pros was entered in favor of the defendants, with costs, including a counsel fee of $50.
On appeal, the Court of Appeals held that the sanctions were properly imposed, sua sponte, but affirmed in part and reversed in part, finding the non pros proper as to three counts of the declaration but improper as to two other counts and remanded the case for a limited trial.
In the leading case of Guerriero v. Friendly Finance Corp., 230 Md. 217, 186 A.2d 881 (1962), the corporate plaintiff, the holder of a judgment, sought relief in equity to have certain transactions set aside as fraudulent. In July, 1960, it filed interrogatories. After more than six months passed and no answers were made it moved on February 16, 1961 for a decree pro confesso which was entered five days later.
In Miller v. Talbott, 239 Md. 382, 211 A.2d 741 (1965), after defendant did not answer plaintiff's interrogatories in a suit for specific performance, plaintiff moved for a decree pro confesso. The Chancellor ordered defendant to show cause why the decree should not issue. When the defendant did not do so, the decree issued. As stated there by Judge Barnes:
"Under the circumstances here, when defendants or counsel for the defendants had every opportunity to answer the five interrogatories propounded to them; where the court granted an additional period of time in which to show cause why a decree pro confesso should not be granted, rather than summarily entering such a decree we can only conclude assuming abuse of discretion to be the *693 applicable test that no abuse of discretion was shown in entering the decree pro confesso. ..." 239 Md. at 388.
The Court of Appeals nevertheless reversed and remanded, holding that the subsequent refusal of the Chancellor to "hear evidence on and to determine the merits of, the defendants' proffered defenses constituted an abuse of discretion given by Maryland Rule 675 a.3...." Id. at 390.
In Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 174 A.2d 768 (1961) the corporate defendant refused to answer four of plaintiff's interrogatories on the ground that they were improper. It continued this refusal even after having been directed by the court to answer. Upon motion of the plaintiff, the court awarded judgment by default, pursuant to former Rule 417 d., now Rule 422 c. The judgment was affirmed.
In Peck v. Toronto, 246 Md. 268, 228 A.2d 252 (1967) appellant's suit in proper person was dismissed pursuant to then Maryland Rule 414 a. 2. (superceded in 1973 by present Rule 422 c.) for refusal to depose after an order of court to do so. In affirming the dismissal, Chief Judge Hammond gave a chronological recital of the course of the case:
"On September 25, 1965, Peck failed to appear for the taking of his deposition by the appellees at a time and place of which he had due and timely notice. On October 28 following, appellees' motion to dismiss the case was denied by Judge Bowie when Peck promised thereafter to appear and give his deposition, after the court had advised him of the purpose and nature of a deposition and of his obligation to answer questions after noting an objection (for future action by the court) to any he thought improper. A new notice of a deposition *694 to be held November 16 was sent to Peck, who, on November 12 filed a motion under Rule 406 for an order `to protect the party * * * from hardship or oppression or undue expense.' The motion was denied the same day by Judge Bowie and the deposition was reset for December 11. On November 16 Judge Bowie denied Peck's motion to set aside his order of November 12. On December 10 Peck filed a motion for the appellees to show cause why he should appear and give his deposition. He failed to appear on December 11, as he had agreed to do.
Appellees filed another motion to dismiss the proceeding. Judge Powers denied the motion, after repeating the explanation as to a deposition that Judge Bowie had made, and telling Peck he would be given `one more chance.' Judge Powers also alleviated one of Peck's objections that of going to Montgomery County to give his deposition by ordering that the testimony be taken in Prince George's County.
"The deposition was then set for January 29. Peck appeared but refused to answer a number of pertinent and material questions. On February 16, after a hearing which Judge Loveless previously had ordered, Judge Bowie dismissed the case with prejudice."
Finally, in Kipness v. McManus, 14 Md. App. 362, 286 A.2d 829 (1972) the opinion of this Court discloses that before a judgment of non pros was granted as to an individual plaintiff (there being also a corporate use-plaintiff) the deposition of the individual had been noted for August 28, September 25 and November 25, that a court stenographer was present and ready to proceed in each instance and that on each occasion the plaintiff declined or refused *695 to attend. Prior to the last occasion, his attorney had been advised that an appropriate motion would be filed if the client failed to appear. The court thereafter entered an Order on December 2 that the individual plaintiff show cause on or before December 17 why judgment of non pros should not be entered against him. He failed to do so. The judgment of non pros was then granted and this Court affirmed.
In virtually every case where the ultimate sanction has been imposed, such action has been taken in the presence of contumacious or dilatory conduct on the part of the plaintiff or when the noncomplying party had disobeyed a direct order of the court to depose, or to show cause, to answer interrogatories, or to respond to his opponent's motion for dismissal or default judgment. While the Court of Appeals has held that dismissal or default may be imposed even where a party's failure to comply with a discovery order is neither wilful nor contumacious, Lynch v. R.E. Tull & Sons, Inc., 251 Md. 260, 247 A.2d 286 (1968), supra, its ground there for affirming such action by the trial court was principally that appellant had not provided a transcript and "[t]hat which is before us does not permit us to find an abuse of discretion in Judge Shure's actions." 251 Md. at 262.
The instant record is complete enough to permit us to find an abuse of discretion here. We base our decision on the following grounds:
1) There was no record of delay or contumacious conduct on the part of the plaintiff. She was not herself involved in the earlier postponements of her deposition. Rather, they were dictated by the convenience of her counsel who maintained offices in Silver Spring, Montgomery County, and her husband's counsel whose office was located in Washington, D.C. Apparently, as an accommodation to each attorney, she had agreed that her deposition be taken in Silver Spring and *696 the record is barren of any evidence of unwillingness on her part to be deposed there at any time. There is simply no indication of any "unwarranted refusal to depose." Pappalardo v. Lloyd, 250 Md. 121, 124, 242 A.2d 145 (1968).
2) There was no indication of any prejudice to the husband. Indeed his counsel was seeking a continuance[8] rather than a dismissal until the court itself directed him to invoke the penalty provisions of Rule 422.
3) When the husband's counsel filed the motion to dismiss, obedient to the direction of the court; no adequate notice of the motion was afforded the wife, whose counsel received service of the motion as he entered the courtroom before the motion was granted on the day of trial.
4) The case does not appear to involve any substantial property. The trial itself could have proceeded on the morning of November 24, the trial date specified in the pretrial Order, on the merits of the wife's grounds for divorce a vinculo and the matter of custody on which there was no serious issue. If then found necessary, a court deposition of the wife could have been taken and the trial resumed on the issues of alimony and child support. Obviously, if this was not feasible, the case could have been continued for subsequent hearing on the financial aspects and division of any personal property. (We note in this connection that the wife had previously provided the husband's counsel with a complete financial statement and that the wife's notice to take the husband's deposition had been withdrawn.)
5) A dismissal of the wife's bill of complaint, had it been without prejudice, would have been serious enough in its consequences because she had only *697 with some special effort obtained personal service upon the husband in Maryland, he being a resident of Virginia. Dismissal "with prejudice" would be devastating in its effect requiring the wife to pursue her husband in Virginia or, as we are told in the husband's brief, to defend a matrimonial action by him in Virginia.
6) The imposition of a $150 counsel fee upon the plaintiff alone[9] seems unreasonable in the case of a wife who, as here, was of limited means and who had previously found it necessary to execute a pauper's affidavit and to pursue her husband in the District of Columbia under the Uniform Reciprocal Enforcement of Support Act.
We note finally that while the Chancellor referred to the cutoff date for discovery set forth in its pretrial Order, his action in the dismissal of this case with prejudice was pursuant to Rule 422 only and was not based upon the provisions of Maryland Rule 504, supra, relating to pretrial Orders. In this connection we observe that Rule 504 makes no provision for dismissal of actions for non-compliance with pretrial Orders[10] and, while such authority may be within the inherent power of the court, Link v. Wabash Railroad Co., 370 U.S. 626 (1962), its exercise in the instant appeal would have been an abuse of discretion for the reasons previously stated.
Order of dismissal vacated; case remanded for further proceedings not inconsistent with this opinion; costs to be paid by appellee.
NOTES
[1] Maryland Rule 504, "Pre-Trial Conference," provides in subsection (c):
"The court may make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order may thereafter be modified, either before or during the trial, as justice may require."
[2] Paragraph 6 of the pre-trial order recited:
"The parties estimate that 1 day will be needed for the trial of this cause. Priority problem (s): 2 other cases are set for the same day. Earliest filed case has priority. Right-of-way cases may intervene (none scheduled at this time).
[3] "If any party or an officer or managing agent of a party or a person designated under section a 2(b) of Rule 405 (Designation of Person to Testify) fails to obey an order requiring him to provide or permit discovery, the court may make such orders in regard to the failure as are just, and among others the following...."
"An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default or decree pro confesso against the disobedient party."
As noted, infra, this Rule was not applicable. The motion should have been filed pursuant to Rule 422 c.
[4] The parties stipulated that transcripts of the several court proceedings were not required to be made part of the record on appeal.
[5] Appellant moved for reargument and reconsideration on Dec. 4, 1975. After a hearing in open court on Dec. 17, 1975, the motion was denied.
[6] The pretrial Order establishing a deadline for the completion of discovery was not an Order pursuant to the discovery rules.
[7] Rule 422 c. thus supersedes former Rule 414 a.2. which authorized the imposition of penalties, including dismissal, "if any party ... wilfully fails to appear ... [for] his deposition." Rule 422 c.2. provides that if the "failure to act was without substantial justification" the court may require the party failing to act or his attorney or both, to pay the reasonable expenses, including attorney's fees, caused by the failure "unless it finds that other circumstances make an award of expenses unjust."
[8] Unquestionably, the continuance should have been requested by the wife's counsel, a responsibility which continued notwithstanding his client's lately found interest to replace him.
[9] As previously noted, Rule 422 c.2. authorizes the court to require the party failing to act or his attorney or both to pay reasonable expenses, including attorney's fees.
[10] Maryland Rule 504 was modeled on Federal Rules of Civil Procedure, Rule 16. In federal practice, Rule 41 b. designated "Involuntary Dismissal" is authority for dismissal with prejudice for failure to comply with the provisions of Rule 16 pertaining to pretrial Orders. It has been repeatedly held, however, that dismissal under Rule 41 b. is a "harsh sanction" and should be resorted to only in "extreme cases." Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971); Annot: "Dismissal for Failure To Prosecute," 20 ALR Fed. 488 (1974).
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406 F.Supp.2d 744 (2005)
Diana D. POULSON Plaintiff
v.
TRANS UNION LLC, CSC Credit Services, Inc., Equifax Information Services, LLD, Experian Information Solutions, Inc., Discover Financial Services, Inc., USAA Credit Card Bank Aka USAA Credit Card Services, Sears, Roebuck & Co., Inc., and Citibank USA, NA Defendants
No. 2:05-CV-75.
United States District Court, E.D. Texas, Marshall Division.
December 22, 2005.
*745 David Anthony Szwak, Bodenheimer Jones Szwak & Winchell, Shreveport, LA, for Plaintiff.
Gregg D. Stevens, McGlinchey Stafford, Dallas, TX, Anthony Rollo, Gabriel Alan Crowson, McGlinchey Stafford PLLC, New Orleans, LA, for Citibank [USA], N.A.
Cindy Andrew, Lucinda Warnett Andrew, Jones Day, Dallas, TX, for Experian Information Solutions, Inc.
Amanda Lewis, Strasburger Price, Dallas, TX, for Trans Union.
Brian H. Newman, Buchalter Nemer Fields & Younger, Los Angeles, CA, for Sears, Roebuck & Co.
Camille W. Averett, Mara McRae, Kilpatrick Stockton, Atlanta, GA, for Equifax Information Services.
Jeffrey Wayne Moles, Van Harold Beckwith, Chad Michael Pinson, Baker Botts, Dallas, TX, for CSC Credit Services.
C. Ed Harrell, Lawrence Young, Hughes Watters & Askanase, Houston, TX, for USAA Federal Credit Union a/k/a USAA Savings Bank and Discover Financial Services.
Rickey Lawrence Faulkner, Rickey L. Faulkner, P.C., Longview, TX, Virgil Jay Youngblood, Ronald Kevin Rhyne, Henslee *746 Fowler Hepworth & Schwartz, Tyler, TX, for Defendants.
MEMORANDUM OPINION AND ORDER
DAVIS, District Judge.
Before the Court are Defendant Citibank USA, National Association's Motion to Stay Litigation in Favor of Arbitration (Docket No. 59) and Defendant Sears, Roebuck, and Co.'s Joinder in Citibank's Motion to Stay Litigation in Favor of Arbitration (Docket No. 61). Having considered the parties' written submissions and oral arguments, the Court DENIES the motions.
BACKGROUND
Diana Poulson brings this suit complaining that Defendants misreported her account status resulting in a negative credit report. Specifically, she claims Defendants have wrongly included information relevant to her ex-husband's Sears credit card, issued by Citibank, on her credit report and this information negatively impacts her credit report.
When Poulson married William Henry Eckert, Jr. on August 23, 1986 he had a Sears credit card issued by Sears National Bank. During their marriage, Eckert named Poulson as an authorized user on several credit accounts that he had opened prior to their marriage, including his Sears account ("Eckert account") but she never became a cardholder or guarantor on the account. During the time in question, Poulson also had her own Sears credit card ("Poulson account"). Poulson and Eckert divorced on December 28, 2000, and Eckert was supposed to have removed Poulson as an authorized user on his Sears account, but he apparently did not. Poulson alleges that she contacted Sears in October 2001 demanding that she be removed from the records as she had no liability for any charges or future charges and did not use the Eckert Sears account, but was told that since she was not the "primary" party on the Eckert Sears account she could not make any change to the account information. She further alleges that she asked her ex-husband to have her removed from the account, and he said he would do so. Poulson claims that in late May 2004 she first learned that Eckert had amassed large credit card debt on his Sears card account and that account had been reported on her credit report. This suit followed involving not only the Sears cards, but a number of other cards, which Poulson alleges were handled in a similar manner thus damaging her credit. All of the allegations of improper reporting relate to Eckert's cards and not Poulson's.
Citibank seeks to compel Poulson to arbitration arguing that in November 2003, Citibank purchased both the Eckert and Poulson Sears accounts from Sears National Bank, and at the time of purchase sent all Sears card account holders notice that Citibank was changing the accounts' terms to include an arbitration agreement: "All claims relating to your account, a prior related account, or our relationship are subject to arbitration. . . ." The change-in-terms notice included an opt-out provision, which required account holders to mail the opt-out statement to Citibank in order to not be bound by the new terms. Citibank does not contend that Poulson is bound by the arbitration agreement relating to the Eckert Sears account from which Poulson's claims arise, but makes the novel argument that the notice it allegedly sent to Poulson regarding her own Sears card account binds her to arbitrate the dispute before the Court relating to her ex-husband's Eckert Sears card account.
*747 Regarding Poulson's Sears-Citibank account, Citibank contends that it did not receive an opt out notice from her, but Poulson claims that she attempted to close her account when she received notice that Citibank was purchasing the account. There is no evidence that Poulson used her Sears-Citibank card after that point in time, much less her ex-husband's Sears-Citibank card.
APPLICABLE LAW
Arbitration is a matter of contract, and courts may require a party to submit its dispute to arbitration only if the party has expressly agreed to do so. Personal Security & Safety Sys. Inc. v. Motorola Inc., 297 F.3d 388, 392 (5th Cir.2002). To determine whether the parties have agreed to arbitrate the dispute, a court must first determine whether there is a valid agreement to arbitrate between the parties and then determine whether the parties' dispute falls within the scope of the arbitration agreement. Id. Ordinary state law principles that govern contract formation apply to the determination of whether the parties have a valid arbitration agreement. Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002). In determining whether a dispute falls within the scope of the arbitration agreement, ambiguities are resolved in favor of arbitration, but this does not apply to determining whether a valid arbitration agreement exists. Id.
ANALYSIS
Before determining whether Poulson's claims relate to her relationship with Citibank and are thus subject to arbitration under the arbitration provision, the Court must first determine whether Poulson and Citibank ever had a valid agreement to arbitrate their disputes. Although Poulson's claims concern the Eckert account, Citibank does not argue that Poulson is bound by an arbitration clause related to the Eckert account. Instead, Citibank argues that through the Poulson account, Poulson agreed to arbitrate all disputes relating to her relationship with Citibank, including the disputes arising out of the Eckert account. Poulson disputes that she ever entered into such an arbitration agreement.
Citibank claims that Poulson accepted the arbitration provision because she did not send a notice opting out of the agreement when Citibank sent her the change in terms. Citibank's argument is premised on its ability to change the account terms at will by notifying the account holder. Thus, the Court must first determine whether Citibank had the right to modify Poulson's account terms to include the arbitration provision by sending an opt-out notice. Citibank, however, has has failed to produce Poulson's agreement with Sears and therefore cannot show that Poulson's original agreement with Sears allowed Citibank, as Sears's assignee, to modify the terms of the agreement by sending such a notice. Thus, Citibank has no proof that it had the right to attempt to add the arbitration provision to the terms of Poulson's account in this manner. Because Citibank has not shown that it had the right to change Poulson's account terms by sending a notice and requiring an opt-out letter, Poulson's alleged failure to opt out of the arbitration provision does not suffice as consent to arbitrate.
Therefore, Citibank must show that Poulson consented to arbitration by some other means.[1] In the context of *748 stand-alone arbitrations agreements, binding promises are required by both sides as consideration to create the contract. In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex.2005). If the arbitration agreement is part of an underlying contract, the rest of the parties' agreement provides the consideration. Id. Poulson claims that when she received the notice of the change in terms, she contacted Citibank to close the account. Poulson has no evidence of this, and Citibank claims to have no record of this. But Poulson did cease using the card after she allegedly attempted to close the account, which stands as strong circumstantial evidence that she attempted to close the account. If Poulson attempted to close the account in response to a change in terms, she clearly did not accept Citibank's offer to change the terms. Since she attempted to close the account, maintenance of the account could not serve as consideration for the arbitration provision. Cf. id. ("Having used PCS's services and network to obtain reimbursements for 10 years, the pharmacies cannot claim their agreement to arbitrate was without consideration."). Citibank has no evidence of a binding promise by Poulson to be bound by the arbitration agreement.
Citibank has not carried its burden in showing Poulson is bound by the arbitration provision. Citibank has not shown that it had the right to modify the terms of the account in the manner that it attempted; nor has Citibank shown that Poulson otherwise agreed to modify the account terms to include an arbitration agreement. Since there was no valid agreement to arbitrate, the Court does not need to reach the second prong of the analysis and determine whether the dispute falls within the terms of the arbitration provision.
CONCLUSION
Citibank has not shown that Poulson is bound by a valid arbitration agreement. Accordingly, the Court DENIES Citibank's motion to stay and Sears's joinder in that motion.
NOTES
[1] The Court's determination of whether Poulson agreed to modify the Sears agreement is hindered by not having that agreement. Presumably, Poulson's original agreement with Sears contained a choice-of-law clause stating which state's law apply to contractual disputes. Citibank has not produced that agreement, and the Court cannot determine whether Poulson and Sears agreed that a particular state's law should govern the interpretation of the original agreement. The Court will apply Texas law.
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296 U.S. 617
56 S.Ct. 138
80 L.Ed. 438
CHICAGO GRAVEL COMPANY, petitioner,v.COLUMBIAN NATIONAL LIFE INSURANCE COMPANY.*
No. 359.
Supreme Court of the United States
October 14, 1935
Messrs. William Beye and Harry I. Allen, both of Chicago, Ill., for petitioner.
1
For opinion below, see Continental Illinois Nat. Bank & Trust Co. of Chicago v. Columbian Nat. Life Ins. Co., 76 F.(2d) 733.
2
Petition for writ of certiorari to the United States Circuit Court of Appeals for the Seventh Circuit denied.
*
Rehearing denied 296 U. S. 663, 56 S. Ct. 168, 80 L. Ed. 472.
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718 F.2d 1115
Enerhaul, Inc.v.N. L. R. B.
82-7298
UNITED STATES COURT OF APPEALS Eleventh Circuit
9/30/83
N.L.R.B., 710 F.2d 748
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J-S23033-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID JULIUS PRICE, SR., :
:
Appellant : No. 1647 EDA 2014
Appeal from the Judgment of Sentence Entered April 30, 2014,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0006350-2013
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 11, 2015
David Julius Price, Sr. (Appellant) appeals from the judgment of
sentence entered April 30, 2014, following his guilty plea to one count of
driving under the influence of alcohol (DUI) - highest rate of alcohol - third
offense, three counts of recklessly endangering another person, and one
count of driving while operating privilege was suspended or revoked.
Counsel for Appellant has filed a petition to withdraw and brief pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we deny counsel’s
petition to withdraw and order counsel to file a supplemental brief.
Appellant was arrested and charged with various offenses following an
incident that occurred on September 18, 2013. On March 3, 2014, Appellant
entered into an open guilty plea to the aforementioned charges. On April
*Retired Senior Judge assigned to the Superior Court.
J-S23033-15
20, 2014, Appellant was sentenced to an aggregate term of 2 to 11 years’
incarceration. No post-sentence motion was filed. Appellant filed a pro se
notice of appeal. The trial court forwarded this notice to Appellant’s counsel
of record and directed counsel to file a statement of errors complained of on
appeal.1 Counsel complied with the court’s directive by filing notice of his
intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
1
Appellant was sentenced on April 20, 2014, and had 30 days, or until May
30, 2014, to file a timely notice of appeal. Appellant’s notice of appeal was
entered on the docket on June 3, 2014.
“[I]n the interest of fairness, the prisoner mailbox rule provides that a
pro se prisoner’s document is deemed filed on the date he delivers it to
prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,
38 (Pa. Super. 2011). The rule allows this Court “to accept any reasonably
verifiable evidence of the date that the prisoner deposits the appeal with the
prison authorities....” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002).
Instantly, the certificate of service attached to Appellant’s notice of
appeal is dated May 27, 2014, which arguably supports a conclusion that
Appellant’s appeal was timely filed under the prisoner mailbox rule.
However, the envelope containing the notice is postmarked June 2, 2014.
Nonetheless, there is nothing of record that would indicate that Appellant did
not place the document in the hands of prison authorities on May 27, 2014,
or shortly thereafter.
However, pursuant to well-established Pennsylvania law, a defendant
is not entitled to hybrid representation. See Commonwealth v. Ellis, 626
A.2d 1137, 1141 (Pa. 1993) (a defendant does not have the constitutional
right of self-representation together with counseled representation at the
trial or appellate level); see also Commonwealth v. Jette, 23 A.3d 1032,
1036 (Pa. 2011) (citing Pennsylvania’s long-standing policy that precludes
hybrid representation). Additionally, Rule 120(A)(4) of the Rules of Criminal
Procedure states that an “[a]n attorney who has been retained . . . shall
continue such representation through direct appeal or until granted leave to
-2-
J-S23033-15
withdraw by the court pursuant to paragraph (B).” Pa.R.Crim.P. 120(A)(4).
Paragraph (B) of that rule states that “[c]ounsel for a defendant may not
withdraw his or her appearance except by leave of court.” Pa.R.Crim.P.
120(B)(1).
Here, the record demonstrates that trial counsel was still counsel of
record at the time Appellant filed his pro se notice of appeal. Despite his
claim in his motion to withdraw that his representation of Appellant “did not
include taking an appeal” to this Court, Petition to Withdraw As Counsel,
6/9/2014, at ¶ 2, counsel did not move to withdraw at any point prior to
Appellant’s pro se filing. Moreover, Appellant did not request leave to
proceed pro se, nor did he request that plea counsel withdraw. Pursuant to
the Rules of Criminal Procedure outlined above, it was improper for him to
file a pro se notice of appeal with the trial court. The above errors
notwithstanding, we decline to quash this appeal.
We further note that, although Appellant filed his notice of appeal pro
se while ostensibly represented by counsel, that does not deprive this Court
of jurisdiction to hear Appellant’s claims. Generally, our courts will not
entertain pro se filings while an appellant remains represented, and such
filings have been described as legal nullities. See Commonwealth v. Ali,
10 A.3d 282, 293 (Pa. 2010). However, pro se notices of appeal present a
special case. In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our
Supreme Court held that a pro se notice of appeal, filed while Cooper was
represented by counsel, was not automatically a legal nullity, but was simply
“premature.” Id. at 1007. Admittedly, Cooper was a case with a unique
procedural history that can be distinguished from that of the instant matter.
Nonetheless, this Court and our Supreme Court have faced pro se notices of
appeal filed by represented appellants both before and after Cooper, and we
have not considered this defect to be fatal. See, e.g., Commonwealth v.
Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining that “[Wilson] filed a pro
se notice of appeal; it is not clear why his court-appointed counsel did not
file the notice,” and proceeding to review the merits of Wilson’s case without
further discussion); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa.
Super. 2009) (remanding for a Grazier hearing where, after the denial of
Robinson’s counseled petition pursuant to the Post Conviction Relief Act,
Robinson filed a timely pro se appeal, and a petition requesting that he be
allowed to proceed pro se, and the PCRA court entered an order permitting
counsel to withdraw). Thus, we will not treat Appellant’s pro se notice of
appeal as a nullity.
-3-
J-S23033-15
On February 10, 2015, Appellant’s counsel filed with this Court a
petition to withdraw as counsel and an Anders brief. As a preliminary
matter, we address counsel’s application to withdraw before reaching the
merits of the issues raised in the brief. Commonwealth v. Rojas, 874
A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700
A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a purported Anders
brief, this Court may not review the merits of the underlying issues without
first passing on the request to withdraw.”).
To withdraw pursuant to Anders, counsel must: 1) petition the Court
for leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him or
her of the right to obtain new counsel or file a pro se brief to raise any
additional points that the appellant deems worthy of review.
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010).
Thereafter, this Court independently reviews the record and issues. Id.
Our Supreme Court has explained that, in an Anders brief, counsel
seeking to withdraw must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
-4-
J-S23033-15
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, counsel for Appellant states one issue of arguable merit:
whether Appellant’s sentence of 2 to 11 years’ incarceration is harsh or
excessive. Appellant’s Brief at 3. However, counsel’s conclusion that this
argument is frivolous, because “the Superior Court has no authority to
permit a challenge to the discretionary aspects of sentence” following the
entry of an open guilty plea, is a clear misstatement of the law. See e.g.
Commonwealth v. Tirado, 870 A.2d 362, 368 n. 5 (2005) (noting that
“while a guilty plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his or her sentence other than to
argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.”) (emphasis in original). Complicating the issue is counsel’s
failure to file a separate Pa.R.A.P. 2119(f) statement stating the reasons
relied upon for allowance of this appeal, and his failure to indicate, or even
-5-
J-S23033-15
mention, whether Appellant’s sentencing issue presented a substantial
question for our review.2
In Santiago, our Supreme Court explained why it is important that
counsel articulate her reasons for concluding that an appeal is frivolous.
We are persuaded that requiring counsel to articulate the
basis for his or her conclusion of frivolity will advance the twin
functions counsel's Anders brief is to serve, i.e., it will assist the
intermediate appellate courts in determining whether counsel
has conducted a thorough and diligent review of the case to
discover appealable issues and whether the appeal is indeed
frivolous. In this context, we believe that there is real value in
putting pen to paper. As the United States Supreme Court has
noted, the task of articulating reasons can shed new light on
what may at first appear to be an open-and-shut issue. It can
also reveal to counsel previously unrecognized aspects of the
record or the law and thereby provide a safeguard against a
hastily-drawn or mistaken conclusion of frivolity. In addition, we
believe that it is often the case that the basis for an attorney's
2
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely [filed]; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
-6-
J-S23033-15
opinion that an appeal is frivolous is not readily apparent, and
that accordingly, counsel's explanation will significantly assist
the courts in passing upon the soundness of counsel's
conclusion, which, in turn, vindicates the right to counsel.
Id. at 360-61 (citations omitted).
Instantly, absent any attempt by counsel to meet this requirement, we
conclude that his brief does not comply substantially with Santiago. As a
result, we deny counsel’s petition to withdraw without prejudice. Counsel
shall file either an advocate’s brief or a supplemental Anders brief within 30
days of the date of this memorandum.
Petition to withdraw as counsel denied. Case remanded with
instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
-7-
J-S23033-15
-8-
| {
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CHRISTOPHER LEON JACOBS, )
)
Appellant, )
)
v. ) Case No. 2D17-2437
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
Opinion filed May 17, 2019.
Appeal from the Circuit Court for
Hillsborough County; Lisa D. Campbell,
Judge.
Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Katie Salemi-Ashby,
Assistant Attorney General, Tampa, for
Appellee.
ATKINSON, Judge.
Christopher Leon Jacobs was found guilty by a jury of one count of
aggravated stalking and two counts of violation of a stalking injunction. On appeal,
Jacobs argues that the dual convictions for violation of a stalking injunction violate
double jeopardy. We disagree and affirm.
On March 29, 2016, Jacobs entered the Palm River Laundromat, where
the victim was employed, and asked if he could use the restroom. The victim said no
because the restroom was meant for customers only. Jacobs responded, "I'll shoot you,
bitch." Over the next several months, Jacobs entered the laundromat and threatened
the victim. The victim then applied for an injunction against Jacobs.
On July 29, 2016, at 10:00 a.m., Deputy Craig Martin served the injunction
on Jacobs, explaining that the injunction prohibited Jacobs from contacting the victim at
her place of employment and from going within 500 feet of the perimeter. After reading
the injunction, Jacobs indicated he understood. That same day, while the victim was
outside the laundromat, Jacobs threatened her from across the street. Jacobs was
standing about sixty feet away from the victim. At 10:30 a.m., the victim flagged down
Deputy Jared Lee and told him that Jacobs yelled at her from across the street. After
Deputy Lee located Jacobs, Jacobs admitted that he knew about the injunction and that
he yelled out, "Bitch, I'm coming to get you" while pounding on his chest with both fists.
On August 18, 2016, Jacobs was charged with one count of aggravated
stalking and two counts of violation of stalking injunction, one for being within 500 feet of
the victim and the other for communicating with the victim. After a jury found him guilty
as charged, Jacobs was sentenced to 28.8 months in prison on count one and to time
served on the remaining counts. This appeal followed.
A double jeopardy violation may be raised for the first time on appeal
because it amounts to fundamental error. Eichelberger v. State, 949 So. 2d 358, 359
-2-
(Fla. 2d DCA 2007) (citing Marinelli v. State, 706 So. 2d 1374, 1375 n.1 (Fla. 2d DCA
1998)). The double jeopardy clauses in the Florida and United States Constitutions
protect individuals from being put in jeopardy more than once "for the same offense."
Art. I, § 9, Fla. Const.; Amend. V, U.S. Const. ("[N]or shall any person be subject for the
same offence to be twice put in jeopardy of life or limb[.]"); Valdes v. State, 3 So. 3d
1067, 1069 (Fla. 2009) ("[T]he Constitution prohibits subjecting a person to multiple
prosecutions, convictions, and punishments for the same criminal offense."). "[W]here a
defendant is convicted multiple times under the same statute for acts that occurred
during the course of a single criminal episode, a 'distinct acts' test is used" to determine
whether the convictions violate double jeopardy, but "where a defendant is convicted
under multiple statutes for one act, the 'different elements' test applies." Graham v.
State, 207 So. 3d 135, 141 (Fla. 2016) (discussing Blockburger v. United States, 284
U.S. 299 (1932)).
Here, the "distinct acts" test applies because Jacobs was convicted
multiple times under section 784.0487(4)(a), Florida Statutes (2016), for acts that
occurred during a single criminal episode. Section 784.0487(4)(a) provides the
following:
A person who willfully violates an injunction for protection
against stalking or cyberstalking issued pursuant to s.
784.0485, or a foreign protection order accorded full faith
and credit pursuant to s. 741.315, by:
1. Going to, or being within 500 feet of, the petitioner's
residence, school, place of employment, or a specified
place frequented regularly by the petitioner and any
named family members or individuals closely associated
with the petitioner;
2. Committing an act of stalking against the petitioner;
-3-
3. Committing any other violation of the injunction through
an intentional unlawful threat, word, or act to do violence
to the petitioner;
4. Telephoning, contacting, or otherwise communicating
with the petitioner, directly or indirectly, unless the
injunction specifically allows indirect contact through a
third party;
5. Knowingly and intentionally coming within 100 feet of the
petitioner's motor vehicle, whether or not that vehicle is
occupied;
6. Defacing or destroying the petitioner's personal property,
including the petitioner's motor vehicle; or
7. Refusing to surrender firearms or ammunition if ordered
to do so by the court,
commits a misdemeanor of the first degree, punishable as
provided in s. 775.082 or s. 775.083, except as provided in
paragraph (b).
(Emphasis added.) Pursuant to the "distinct acts" test, a single criminal impulse may be
punished only once "no matter how long the action may continue," while separate,
successive impulses may be punished separately "even though all unite in swelling a
common stream of action." Graham, 207 So. 3d at 139 (quoting Blockburger, 284 U.S.
at 302). In determining whether acts are "distinct," courts consider "factors such as
whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a
change in location between the acts; and/or (4) a new criminal intent formed." Partch v.
State, 43 So. 3d 758, 761 (Fla. 1st DCA 2010) (citing Hayes v. State, 803 So. 2d 695,
700 (Fla. 2001)).
Jacobs' two violations of the injunction were two distinct criminal acts.
See State v. Meshell, 2 So. 3d 132, 135 (Fla. 2009). By going to or being within 500
-4-
feet of the victim's workplace, Jacobs committed "a criminal act distinctively different
from" his contacting or otherwise communicating with the victim. See id. at 136
("Because the oral sex described in Count 3 is a criminal act distinctively different from
the vaginal penetration or union in Count 1, there is not a double jeopardy violation."); §
784.0487(4)(a)1., 4. (prohibiting the "[g]oing to, or being within 500 feet of" the victim's
"place of employment" and the "[t]elephoning, contacting, or otherwise communicating
with the" victim, respectively). As such, his convictions for each do not constitute
double jeopardy for the same offense.
The dissent contends that there was only one violation of the statute as
the facts support a "single criminal impulse to violate the injunction." (Emphasis added.)
However, there are several ways to violate the statute prohibiting violations of
injunctions. See § 784.0487(4)(a)1.–7. And convictions for multiple violations of
separately enumerated acts proscribed by the same statute do not violate double
jeopardy—even if they are committed during the same criminal episode—as long as
each is based on a "distinct criminal act[]." See Meshell, 2 So. 3d at 135 (finding
commission of two of the various sex acts proscribed in section 800.04(4), Florida
Statutes, during the same criminal episode constituted distinct acts such that double
jeopardy did not bar punishment for each). "The test is whether the individual acts are
prohibited, or the course of action which they constitute. If the former, then each act is
punishable separately. If the latter, there can be but one penalty." Id. Here, it is the
former. The language of section 784.0487(4) indicates that willful violation of an
injunction can be "violated in multiple, alternative ways," each of which can be punished
as separate offenses if they constitute distinct criminal acts. Meshell, 2 So. 3d at 135
-5-
(quoting Saavedra v. State, 576 So. 2d 953, 956–57 (Fla. 1st DCA 1991)) (finding
double jeopardy did not prohibit separate punishment for the two different ways the
defendant committed lewd and lascivious battery in violation of section 800.04(4) during
the same episode).1
The dissent identifies the lack of temporal break between the two
violations (which arguably occurred simultaneously when Jacobs yelled at the victim
from a distance of less than 500 feet of her workplace) as support for its conclusion that
there was only one violation of the statute. However, even violations that occur
simultaneously can be punished separately without violating the double jeopardy
prohibition if each commission is of a separate character and type. See State v.
Drawdy, 136 So. 3d 1209, 1214 (Fla. 2014) (finding double jeopardy did not prohibit
convictions for both lewd or lascivious molestation and sexual battery after the
defendant "touched the victim's breasts during vaginal penetration," each of which were
1The dissent dismisses the State's reliance on Meshell by explaining that
the supreme court in Graham cleared up confusion created by the Meshell opinion,
which had conflated the "distinct acts" and the "different elements" tests. But that does
not mean that Meshell is inapposite. Graham did not impugn the outcome of Meshell,
which supported its conclusion with the "distinct acts" test but also seemed to rely on
the "different-elements" test. Graham merely pointed out that the latter test was
inapplicable and unnecessary because both of the convictions in Meshell were for
violations of the same statute. The holding of Meshell is not reliant on the "different
elements" test and is very much applicable to this case: "Because the oral sex
described in Count 3 is a criminal act distinctively different from the vaginal penetration
or union in Count 1, there is not a double jeopardy violation." Meshell, 2 So. 3d at 136;
cf. Graham, 207 So. 3d at 141 (affirming a district court that reached "the correct result"
when it concluded that a "defendant's dual convictions under the lewd or lascivious
molestation statute did not violate double jeopardy" even though the district court
appeared to have "improperly utilize[d] aspects of the 'different elements' test" and
noting that the district court "only needed to focus on whether each act that violated the
statute was distinct"); Partch, 43 So. 3d at 762 ("Had distinct acts been found, the
analysis would end here" without proceeding to the "same elements test.").
-6-
offenses "of a separate character and type" constituting "distinct criminal acts" (quoting
Meshell, 2 So. 3d at 136) (emphasis added)).
It is not necessary for the two acts to be separated by a temporal break or
a change in location in order for them to be considered distinct criminal acts.
Nonetheless, such temporal and spatial separation arguably does exist in this case.
The violation of subsection 1. occurred when Jacobs crossed the line demarcating
where he was and was not allowed to be—within 500 feet of the victim's place of
employment. The violation of subsection 4. occurred sometime thereafter when he
began communicating with the victim when he was within sixty feet of the laundromat
where she worked. The temporal break was whatever time it took for Jacobs to
traverse the 440 feet to the point at which he began yelling at her.
However, even if he had been communicating with the victim at the exact
moment he first came within 500 feet of the victim's workplace (say, by use of a cell
phone), that lack of temporal or spatial separation would not give rise to a double
jeopardy violation. Each act is of a separate character and type, and each is born of a
separate impulse. See Drawdy, 136 So. 3d at 1212 ("The differences in the character
and type of crime proven are as important as the spatial and temporal aspects when
considering whether multiple punishments are appropriate." (quoting Murphy v. State,
49 So. 3d 295, 298 (Fla. 5th DCA 2010))).2 In other words, the impulse to put one foot
2By the dissent's rationale, Jacobs could not be convicted separately for
two offenses even if he had been lurking behind a dumpster in the parking lot of the
victim's workplace while sending her text messages from his phone. An unavoidable
consequence of the dissent's conclusion is that a defendant who commits any of the
offenses enumerated in subsections 2. through 7. cannot also be convicted of violating
subsection 1. if they were committed within 500 feet of the victim's workplace. The
language of the constitution, which only protects against double jeopardy for the same
-7-
in front of the other enough times (or keep one's foot on the accelerator long enough) to
transport ones' self to within 500 feet of the victim's place of employment is separate
and distinct from the impulse to open one's mouth and yell at her. See Graham, 207
So. 3d at 139 ("If successive impulses are separately given, even though all unite in
swelling a common stream of action, separate indictments lie." (quoting Blockburger,
284 U.S. at 302)).
Jacobs chose to place himself within 500 feet of the victim's workplace.
Then, he chose to communicate with her. Even if he was committing both violations at
the exact same time, they are distinct acts separately proscribed by the statute under
which he was convicted. Cf. Meshell, 2 So. 3d at 134 ("Distinct acts of sexual battery
do not require a 'temporal break' between them to constitute separate crimes.").
Accordingly, we affirm Jacobs' convictions and sentences for one count of aggravated
stalking and two counts of violation of a stalking injunction.
Affirmed.
LUCAS, J., Concurs.
KHOUZAM, J., Dissents with opinion.
offense, and of the statute, by which the legislature created separate offenses for
various ways in which an injunction is violated, dictates otherwise—that the distinct acts
comprising these criminal episodes can be punished separately, despite their lack of
spatial or temporal separation. See Meshell, 2 So. 3d at 135–36 (finding no violation of
double jeopardy where the defendant committed "distinct criminal acts that the Florida
Legislature has decided warrant multiple punishments").
-8-
KHOUZAM, Judge, Dissenting.
Although I agree that the "distinct acts" test applies here, I believe that the
majority has misapplied this test. In my view, correctly applying the "distinct acts" test in
this case leads to the conclusion that Jacobs' dual convictions for violation of a stalking
injunction run afoul of the prohibition against double jeopardy. Accordingly, I would
reverse.
The majority has accurately explained the basic principles of the "distinct
acts" test, which applies here because Jacobs was convicted multiple times under the
same statute for acts that occurred within the same criminal episode. The "distinct acts"
test provides that where a course of action is prohibited, only one punishment is
appropriate, because a single criminal impulse may be punished only once "no matter
how long the action may continue." Graham v. State, 207 So. 3d 135, 139 (Fla. 2016)
(quoting Blockburger v. United States, 284 U.S. 299, 302 (1932)). And conversely,
where an individual criminal act is prohibited, each act may be punished separately,
even where successive criminal impulses "unite in swelling a common stream of action."
Id. But "not all charges arising out of different acts occurring within the same criminal
episode will rise to the level of 'distinct' acts and allow for a finding of multiple offenses."
Partch v. State, 43 So. 3d 758, 761 (Fla. 1st DCA 2010). Rather, the determination of
whether acts are "distinct" should be based on "factors such as whether there was (1) a
temporal break between the acts, (2) intervening acts, (3) a change in location between
the acts; and/or (4) a new criminal intent formed." Id. (citing Hayes v. State, 803 So. 2d
695, 700 (Fla. 2001)). There is no bright-line rule because the inquiry into whether acts
are "distinct" is fact-specific. Hayes, 803 So. 2d at 705.
-9-
Turning to the facts of this case, Jacobs' dual convictions for violation of a
stalking injunction were based on (1) being within five hundred feet of the victim and (2)
contacting the same victim. Both charges stemmed from an approximately thirty-minute
time period in which Jacobs was served with the injunction and then proceeded to
violate that injunction by approaching the victim and yelling at her. Jacobs was
apprehended shortly thereafter and admitted not only that he had received the
injunction but also that he had yelled "bitch, I'm coming to get you" while pounding his
chest with both fists. The distance between Jacobs and the victim was about sixty feet.
Jacobs' acts of approaching the victim and yelling at her took place
essentially simultaneously or, at most, within the same short time period. There is
nothing in the record to suggest that there was a temporal break between them.
Nothing in the record suggests that there was a change in location between the acts.
Nothing in the record suggests that there were any intervening acts between Jacobs
approaching and yelling at the victim. The acts of approaching and yelling were both
directed at the same victim. Taken together, these facts indicate a single criminal
impulse to violate the injunction, with no new criminal intent formed between the acts.
Accordingly, the evidence supported only one count of violation of a stalking injunction.
The majority suggests that the structure and plain language of section
784.0487(4) dictate that each of the multiple ways the statute can be violated
constitutes a distinct criminal act. But where a defendant is convicted multiple times
under the same statute, courts should look to the unique facts of the case at hand--not
the structure or language of the single statute--to determine whether the offenses
constitute "distinct acts" that would justify multiple punishments. Analyzing the statutory
- 10 -
language is part of the "different elements" test, which does not apply here because
Jacobs was convicted multiple times under the same statute. See Graham, 207 So. 3d
at 139-140. Where the legislature has set forth an offense in a single statutory section,
it is self-evident that the legislature only intended to create a single offense. The
question then becomes whether the facts of the case indicate that the defendant's acts
were distinct enough to justify multiple punishments.
The majority further relies on State v. Meshell, 2 So. 3d 132 (Fla. 2009),
for the proposition that where a statute can be violated in multiple, alternative ways,
each of those violations constitute a distinct act of a separate type and character that
can be punished separately without running afoul of double jeopardy principles--even
where the acts occur simultaneously. Id. at 134-35; see also State v. Drawdy, 136 So.
3d 1209, 1214 (Fla. 2014). However, while I agree that the Meshell court ultimately
reached the correct result, the supreme court clarified in Graham that it had created
confusion in Meshell by conflating the two different tests set forth in Blockburger. See
Graham, 207 So. 3d at 140. Accordingly, to the extent that Meshell applied the
"different elements" test in a case involving multiple offenses charged under the same
statute, it is no longer good law. By focusing on the language of section 784.0487(4) in
determining whether Jacobs' offenses were "distinct acts," the majority has applied the
part of Meshell that has since been disapproved.
And finally, to the extent that the majority did consider the unique facts of
this case, I disagree with the majority's reasoning. As already discussed above, Jacobs'
actions indicate a single criminal impulse to violate the injunction. This conclusion is
limited to the facts at hand and does not dictate that separate punishments would never
- 11 -
be appropriate for any two acts committed during the same criminal episode and
charged under section 784.0487(4). There may be circumstances where two
simultaneous acts charged under section 784.0487(4) could be considered distinct and
separately punishable. To use one of the majority's examples, a defendant's acts of
lurking behind a dumpster in the parking lot of the victim's workplace while sending her
text messages from his phone could be considered distinct, depending on the full record
before the court. Conversely, it appears that under the majority's analysis, acts falling
under different subsections of section 784.0487(4) would always be considered distinct
acts, regardless of the facts of the case.
Moreover, this is not a case where simultaneous acts should be
considered distinct. Unlike this case, the cases on which the majority relies each
involved distinct sexual acts that occurred essentially simultaneously during a sexual
battery. In Meshell, the defendant was convicted of two counts of lewd and lascivious
battery for penetrating or having union with the victim's vagina and with his penis having
union with the victim's mouth, acts which occurred at approximately the same time. Id.
at 134. In Drawdy, the defendant "was convicted of sexual battery for penetrating the
victim's vagina with his penis. He was convicted of lewd or lascivious molestation for
intentionally touching the victim's breasts in a lewd or lascivious manner during the
vaginal penetration." Id. at 1214. Considering these facts at least in part, the supreme
court held that the defendants' acts were distinct although there was no temporal break
between them. See Meshell, 2 So. 3d at 135 ("We agree that sexual acts of a separate
character and type . . . are distinct criminal acts."); see also Drawdy, 136 So. 3d at 1214
("The lewd touching here was not an integral or necessary part of the sex act, but a
- 12 -
separate and distinct act by itself."). The facts of the instant case are readily
distinguishable. Here, Jacobs' dual convictions for violation of a stalking injunction were
based on (1) being within five hundred feet of the victim and (2) contacting the same
victim. Indeed, it appears that Jacobs approached the victim for the purpose of yelling
at her. I cannot agree that these acts are of a separate character and type in the same
way that multiple sexual acts in sexual battery case are of a separate character and
type, considering the obvious distinctions in character between sexual acts and the
additional harm inflicted upon a victim of sexual battery with each different type of
violation.
Accordingly, I would affirm Jacobs' conviction for aggravated stalking and
a single count of violation of a stalking injunction but reverse the second conviction for
violation of a stalking injunction and remand for the entry of a corrected judgment
reflecting a single conviction for violation of a stalking injunction.
- 13 -
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478 F.3d 144
Antonio D. WATSON; Tony Tix, Inc.; Gerald W. Kelly; Just Jerry's Inc, t/a and d/b/a Scoreboard Restaurant & Tavern; Robert Kennedyv.ABINGTON TOWNSHIP; Abington Township Police Department; Chief William J. Kelly, Individually and in his Official capacity as a Police Chief, Abington Township Police Department; Detective Richard L. Kondon, Badge No.1981, Individually and in his Official Capacity as a Police Officer, Abington Township Police Department; Detective John Parks, Badge No. 0092, Individually and in his Official capacity as a Police Officer, Abington Township Police Department; Detective Anthony Ammaturo, Badge No. 1556, Individually and in his Official Capacity as a Police Officer, Abington Township Police Department Gerald W. Kelly, Just Jerry's Inc. t/a and d/b/a Scoreboard Restaurant & Tavern, Appellants.
No. 05-4133.
United States Court of Appeals, Third Circuit.
Argued September 12, 2006.
Filed February 16, 2007.
D. Louis Nicholson (Argued), Philadelphia, PA, for Appellants.
Walter F. Kawalec, III (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, Cherry Hill, NJ, Joseph J. Santarone, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, King of Prussia, PA, for Appellees.
Before FUENTES, FISHER and BRIGHT,* Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
1
Gerald Kelly and his business Just Jerry's, Inc. (collectively "Plaintiffs") appeal from a decision of the United States District Court for the Eastern District of Pennsylvania dismissing their claims against Abington Township, the Abington Township Police Department, Police Chief William Kelly,1 and three individual officers (collectively, "Defendants") under 42 U.S.C. § 1983. The District Court dismissed the Plaintiffs' Fourth Amendment claim under Federal Rule of Civil Procedure 12(b)(6) based on the closely regulated industry exception to the warrant requirement. It also granted summary judgment to the Defendants on the Plaintiffs' Fourteenth Amendment claim, based on a lack of evidence from which a jury could infer a municipal policy or custom of discriminating against African-Americans. For the reasons set forth below, we will vacate the District Court's dismissal of the Plaintiffs' Fourth Amendment claim, and affirm the Court's summary judgment ruling on the Plaintiffs' Fourteenth Amendment claim.
I.
2
Because this case comes to us on a motion to dismiss and a grant of summary judgment, we will view the facts in the light most favorable to the non-moving party, in this case the Plaintiffs.
3
In 1993, Gerald Kelly retired from the Abington Township Police Department as a lieutenant, after twenty-eight years on the force. Upon his retirement, Kelly purchased the Scoreboard Restaurant and Tavern ("Scoreboard"), and set it up under the corporate entity Just Jerry's, Inc. Kelly and his wife also purchased the property on which the restaurant was located, but did so under their own names.
4
On August 10, 1998, Kelly leased a storefront adjacent to the Scoreboard to Antonio Watson, an African-American who was an original plaintiff in this case.2 Watson used the property to operate a ticket agency named Tony Tix, Inc. Tony Tix remained open from October 1998 to February 2000, and was reportedly very successful during this time.
5
Shortly after Tony Tix opened, Lieutenants Peter Hasson and George Magalish of the Abington Township Police Department reportedly spoke to Kelly about Watson.3 They asked about his background and his business. During their discussion, Kelly mentioned his plans to sell the Scoreboard to Watson. Kelly testified that upon learning of these plans, Lt. Hasson allegedly said "[w]e heard you're . . . selling the bar to [Watson]. And [Kelly] said, [w]ell, you won't be mad when I sell it to a black guy. [Hasson] said, [w]ell, we can raid you out of business and you can buy it back cheap and then he just laughed."
6
The Plaintiffs argue that, although Kelly never sold the bar to Watson, the police did precisely what Lt. Hasson suggested they would do: raid him out of business based on his association with Watson. On May 20, 1999; December 18, 1999; August 3, 2000; and November 25, 2000, the Abington Township Police Department conducted sweeps of the Scoreboard. During these raids, between five and fifteen uniformed officers would enter the bar. One officer would secure the door, while others would walk around and check the identification of the bar's patrons. The officer at the door prevented anyone from entering or leaving until the sweep was complete.
7
On the dates that the officers searched the Scoreboard, other bars were also swept. For example, on May 20, 1999, officers also swept the McKinley Tavern, Hollywood Tavern, Union Jacks Old Glory Pub, and Keswick Tavern. The Defendants claim that the sweeps began in 1999, and were funded by grants provided by the Commonwealth of Pennsylvania. However, Lt. Hasson testified that on May 20, 1999, no one from either the Liquor Control Board or the enforcement bureau accompanied the officers in their search of the Scoreboard. According to his testimony, an agent from the enforcement bureau did accompany the officers during the December 18 and August 3 sweeps. Nothing in the record confirms this claim.
8
The Plaintiffs also claim that, beginning in 1998, the Defendants would often station a marked police vehicle in the parking lot directly across the street from the Scoreboard. On one occasion in either 1998 or 1999, the Defendants set up a Driving Under the Influence ("DUI") checkpoint directly in front of the Scoreboard. During this checkpoint, floodlights illuminated the bar.
9
The Plaintiffs presented sworn affidavits from several individuals who were familiar with the Abington Township Police Department's activities at the Scoreboard. Eugene Chapman, an African-American, was a frequent patron of the Scoreboard, who lived behind the establishment. According to his affidavit, he was followed on several occasions for no legitimate reason by Township police when he drove from behind the Scoreboard. He has been stopped seven times by the Department, but has never received a ticket or citation. Chapman also stated that he was present for a raid of the Scoreboard, during which the officers made all of the customers lie on the floor. In addition, he saw the Department set up highly visible DUI checkpoints very close to the Scoreboard every other weekend. In 2003, he was harassed while parked in a public park by officers who said they had a call that "a strange man was in his car in the park watching television."
10
James Barry, a floor manager for the Scoreboard, also submitted an affidavit. He claimed to have been present on at least seven occasions when Abington Township police raided the establishment. One week, they raided the bar two nights in a row. According to him, no other bars were being raided in this manner. During these raids, African-American customers were harassed more than Caucasian customers. Officers were also stopping Scoreboard patrons for no apparent legitimate reason after they left the bar. This happened to African-American customers more frequently than to Caucasian patrons. In addition, a marked police car was parked across the street from the Scoreboard every night, and this car was visible to customers. According to Barry, these actions destroyed the Scoreboard's business.
11
Robert Kennedy, an employee of the Scoreboard, submitted an affidavit claiming that he observed a uniformed, African-American female officer harass a black customer. On one occasion, Kennedy witnessed the Department set up a DUI checkpoint immediately outside the Scoreboard's parking lot.
12
The Plaintiffs also presented Kelly's deposition testimony in order to provide an inside view of the Abington Township Police Department. Based on his twenty-eight years with the Department, he testified that it was "common knowledge" that racial profiling in traffic stops was an easy way for an officer to increase the number of traffic tickets he issued. Kelly himself had racially profiled cars leaving Philadelphia as a way to get quick tickets.
13
According to Kelly, there was a high number of profiling car stops of African-Americans coming out of Philadelphia, and African-Americans were stopped more often than Caucasians. He also alleged that the police department applied a different standard to African-Americans and other minorities than it applied to Caucasians. Kelly believed that the racial profiling occurred on a weekly basis, and that it was still occurring when he retired in 1993.
14
In addition to the profiling, Kelly testified that he heard a number of racial slurs during his twenty-eight years at the Department. He claims to have heard them approximately on a monthly basis. Detective Richard Kondon, a defendant in this case, testified that he also heard racial epithets while at work, but did not discuss their frequency.
15
Kelly also testified that he did not know of anyone ever being reprimanded for making racial slurs. However, Chief Kelly testified that he personally heard only two racial epithets uttered by Township officers during his eighteen years as chief, and that he punished the offending officer both times. One slur was directed at African-Americans, and the other at Jews. Both of the officers who used these slurs were suspended.
16
According to Kelly, most of the Department knew about the racial profiling, and Chief Kelly "should have known." When asked if Chief Kelly knew about the racial profiling and racial slurs, Kelly answered, "[y]es, I would say. Unless you're totally absent from there, you have to hear something." When asked if Chief Kelly was totally absent, Kelly replied "I don't believe so." However, when Kelly was asked if Chief Kelly was aware of officers uttering racial slurs, Kelly replied "Well, I assume at some point during [his] career [he] might [have] hear[d] a slur, yeah. That is an assumption. I can't say I have proof of anything."
17
On October 30, 2001, the Plaintiffs filed suit against Abington Township, the Abington Township Police Department, Chief William Kelly, and three individual officers. Among other claims that have been dismissed and are not relevant to this appeal, the Plaintiffs brought claims under 42 U.S.C. § 1983 for violation of their Fourth and Fourteenth Amendment rights. In response, the Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On February 20, 2002, the District Court granted the Defendants' motion to dismiss as to the Plaintiffs' Fourth Amendment claim. The Court determined that the Plaintiffs had not made any allegations upon which relief could be granted because all they had claimed was that the bar was searched without a warrant. The Court reasoned that no warrant was necessary to comply with the Fourth Amendment because the sale of liquor is a closely regulated industry. The Plaintiffs filed a motion for reconsideration, which was denied by the District Court on March 31, 2003.
18
On September 30, 2004, the Defendants filed a motion for summary judgment, requesting that all of the Plaintiffs' remaining claims be dismissed. The District Court granted this motion on August 5, 2005. As to the Plaintiffs' Fourteenth Amendment claim, the Court determined that there was insufficient evidence of a municipal policy or custom of racial discrimination to survive summary judgment. The Plaintiffs now appeal from both the order dismissing their Fourth Amendment claim and the grant of summary judgment on their Fourteenth Amendment claim. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
II.
A.
19
The Plaintiffs' first argument is that the District Court erred in dismissing their Fourth Amendment claim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. We exercise plenary review over such matters. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000).
20
In determining whether the District Court erred in dismissing the Plaintiffs' claim under 12(b)(6), "[w]e must determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief, and we must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Id. (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996)) (internal quotation marks omitted). At this stage of the proceedings, "[t]he complaint will be deemed to have alleged sufficient facts if it adequately puts the defendants on notice of the essential elements of the plaintiffs' cause of action." Id. Finally, "[i]n considering a 12(b)(6) motion, we do not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims. Thus, the district court's order granting the defendants' motion to dismiss will be affirmed only if it appears that the plaintiffs could prove no set of facts that would entitle them to relief." Id.
21
Here, the District Court determined that the Plaintiffs had not made any allegations upon which relief could be granted because all they had claimed was that Abington Township police had searched the Scoreboard without a warrant.4 The Scoreboard was engaged in the sale of liquor, which is a closely regulated industry. Under the closely regulated industry exception to the warrant requirement, the Court reasoned that a warrant was not necessary for a lawful search. Thus, the District Court concluded that the Plaintiffs had not stated a claim upon which relief could be granted.
22
Generally, a search or seizure must be carried out pursuant to a warrant to be considered reasonable under the Fourth Amendment. See, e.g., Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir. 1986). In New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), however, the Supreme Court explained that the "expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home. This expectation is particularly attenuated in property in `closely regulated' industries." Id. at 700, 107 S.Ct. 2636 (internal citation omitted). Thus, the closely regulated industry exception to the warrant requirement, based on Colonnade Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), provides that "[b]ecause the owner or operator of commercial premises in a `closely regulated' industry has a reduced expectation of privacy, the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, have lessened application in this context." Burger, 482 U.S. at 702, 107 S.Ct. 2636 (internal citation omitted).
23
However, we have emphasized that "the regulated industries exception is a narrow one, and ... a warrantless search can be placed within that exception only if it is in fact made pursuant to and in enforcement of the regulatory scheme." United States v. Shaefer, Michael & Clairton Slag, Inc., 637 F.2d 200, 204 (3d Cir. 1980). The warrantless inspection of a heavily regulated business will be deemed reasonable only if three criteria are met: (1) "there must be a `substantial' government interest that informs the regulatory scheme pursuant to which the inspection is made," (2) "the warrantless inspections must be `necessary to further [the] regulatory scheme,'" and (3) "`the statute's inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.'" Burger, 482 U.S. at 702-03, 107 S.Ct. 2636 (quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981)). In short, the closely regulated industry exception to the general rule requiring a warrant to search a property requires more than a finding that the business being conducted on that property is closely regulated. It requires that the search or seizure actually be carried out in accordance with a regulatory scheme that provides a constitutionally adequate substitute for a warrant.
24
The issue in the present case is whether the sweeps of the Scoreboard were "in fact made pursuant to and in enforcement of the regulatory scheme" devised by the Commonwealth of Pennsylvania. Initially, this requires us to determine who actually carried out the searches. The Pennsylvania Liquor Control Board ("PLCB") "may inspect the entire licensee's premises during business hours, and cite a licensee for any violation of the Liquor Code or any law of the Commonwealth." In re Catering Club Liquor License No. CC-4837 Issued to Fulton Post, Inc., 63 Pa.Cmwlth. 313, 438 A.2d 662, 663 (1981). Pursuant to this rule, the District Court's decision was premised on its finding that "[h]ere, Defendants argue that the searches of Scoreboard were conducted at the direction of the Liquor Control Board...." Based on this understanding of the facts, the searches would certainly have been valid under the closely regulated industry exception. But the record is devoid of any proof that the PLCB was actually involved with all of the sweeps at issue.
25
When considering "the dismissal of petitioners' Fourth Amendment complaint for failure to state a claim, we can sustain the District Court's action only if, taking the allegations in the light most favorable to petitioners, we nonetheless conclude that they could prove no set of facts entitling them to relief for a [search or] `seizure.'" Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (internal citation omitted). Here, the Plaintiffs have alleged, consistent with their affidavit testimony, that Abington Township police, and not members of the PLCB, were responsible for carrying out the searches. While the Defendants claim that the sweeps were part of a program funded by the Commonwealth of Pennsylvania, the record contains no evidence that this is the case, and no evidence that Township police officers were ever authorized to enter a business's premises. The record does contain evidence that there was a state-funded DUI checkpoint program, but it is far from clear that this included a valid authorization for warrantless searches of establishments that provided alcohol.5 Thus, at best there is a dispute about the nature of the sweeps and whether or not the state actually authorized officers to search businesses without a warrant. At this stage of the proceedings, it was an error for the District Court to accept the Defendants' unsupported explanation of the searches rather than "taking the allegations in the light most favorable to petitioners." Id.
26
The next question before us, then, is whether the regulatory scheme at issue here authorized local police officers to carry out warrantless searches of businesses that sold liquor. If not, the Plaintiffs have alleged a possible Fourth Amendment violation by claiming that Abington Township police officers — and not members of the PLCB — searched the Scoreboard without a warrant. To make this determination, we turn to the relevant Pennsylvania statutory and case law. Section 2-211 of Pennsylvania's Liquor Code provides, in relevant part, as follows:
27
(a) There is created within the Pennsylvania State Police a Bureau of Liquor Control Enforcement which shall be responsible for enforcing this act and any regulations promulgated pursuant thereto. Officers and investigators assigned to the bureau shall have the power and their duty shall be:
28
(1) To investigate whenever there are reasonable grounds to believe liquor, alcohol or malt or brewed beverages are being sold on premises not licensed under the provisions of this act....
29
....
30
(3) Upon reasonable and probable cause, to search for and to seize, without warrant or process, except in private homes, any liquor, alcohol or malt or brewed beverages unlawfully possessed, manufactured, sold, imported or transported and any stills, equipment, materials, utensils, vehicles, boats, vessels, animals, aircraft, or any of them, which are or have been used in the unlawful manufacture, sale, importation or transportation of the same. Such liquor, alcohol, malt or brewed beverages, stills, equipment, materials, utensils, vehicles, boats, vessels, animals or aircraft so seized shall be disposed of as hereinafter provided.
31
(4) To investigate and issue citations for any violations of this act or any laws of this Commonwealth relating to liquor, alcohol or malt or brewed beverages, or any regulations of the board adopted pursuant to such laws or any violation of any laws of this Commonwealth or of the Federal Government, relating to the payment of taxes on liquor, alcohol or malt or brewed beverages by any licensee, his officers, servants, agents or employes.
32
47 Pa. Stat. Ann. § 2-211. In addition, Section 5-513 of the Code directs that:
33
Every place operated under license secured under the provisions of this article where any alcohol, liquor or malt or brewed beverage covered by the license is manufactured, produced, distilled, developed or used in the process of manufacture, denatured, redistilled, rectified, blended, recovered, reused, held in bond, stored for hire or in connection with a licensee's business, shall be subject to inspection by members of the board or by persons duly authorized and designated by the board at any and all times of the day or night, as they may deem necessary, (a) for the detection of violations of this act or of the rules and regulations of the board promulgated under the authority of this act, or (b) for the purpose of ascertaining the correctness of the records required by this act to be kept by licensees and the books and records of licensees, and the books and records of their customers, in so far as they relate to purchases from said licensees, shall at all times be open to inspection by the members of the board or by persons duly authorized and designated by the board for the purpose of making inspections as authorized by this section. Members of the board and the persons duly authorized and designated by the board shall have the right, without fee or hindrance, to enter any place which is subject to inspection hereunder, or any place where records subject to inspection hereunder are kept, for the purpose of making such inspections.
34
47 Pa. Stat. Ann. § 5-513 (emphasis added). Finally, Section 4-493(21) of the Liquor Code makes it unlawful:
35
For any licensee, or his servants, agents or employes, to refuse the board or the enforcement bureau6 or any of their authorized employes the right to inspect completely the entire licensed premises at any time during which the premises are open for the transaction of business, or when patrons, guests or members are in that portion of the licensed premises wherein either liquor or malt or brewed beverages are sold.
36
47 Pa. Stat. Ann. § 4-493(21). Thus, we must consider whether these provisions authorized the warrantless searches of the Scoreboard by Abington Township police officers.
37
Faced with a similar question, the Pennsylvania Superior Court determined in Commonwealth v. Black, 365 Pa.Super. 502, 530 A.2d 423 (1987), that these regulations did not authorize the warrantless entry and search of a licensed premises by a police officer, even if that officer was accompanied by an agent from the PLCB. Id. at 430. In Black, the PLCB was investigating the Second Story Lounge, a private club in Reading, Pennsylvania. The Lounge was a licensee of the PLCB, and was therefore subject to the above statutory provisions of the Liquor Code. An agent of the PLCB contacted local police and requested that an officer accompany him on a search of the club. Id. at 425-26. Pursuant to this request, an officer from the police department accompanied several PLCB investigators on a warrantless search of the Lounge. Id. During the search, the officer discovered the drugs which served as the basis for the criminal charges brought against Black. Id.
38
After considering the provisions noted above, the Superior Court determined that they did not authorize the officer's warrantless search of the premises. The court first noted that "[t]he statute specifies those categories of individuals who have been entrusted to enforce the liquor laws by conducting special searches and inspections, i.e., enforcement officers, investigators, members of the board, and persons duly authorized by the board." Id. at 429-30. A municipal policeman, the court explained, is certainly not an enforcement officer, an investigator, or a member of the board. Id. at 430. In addition, the officer "did not become a `[person] duly authorized and designated by the board' simply by raiding [the Lounge] at the request of [a PLCB agent]." Id. Thus, "[i]n the absence of any evidence of record as to whether [the agent's] request was documented or approved by his superiors, we surely cannot regard the invitation extended to [the officer] as a form of due authorization to inspect within the meaning of the statute." Id. The court then noted that, viewing Sections 5-513 and 4-493(21) in conjunction, "persons duly authorized and designated by the board" under Section 5-513 were intended to be "authorized employes" of the board who are under the direct supervision of board members, as per Section 4-493(21). Id. The court therefore held that the Pennsylvania Liquor Code does not authorize warrantless searches of licensees by municipal police officers. Id.
39
As noted above, "the regulated industries exception is a narrow one, and .. . a warrantless search can be placed within that exception only if it is in fact made pursuant to and in enforcement of the regulatory scheme." Shaefer, Michael & Clairton Slag, Inc., 637 F.2d at 204. The regulatory scheme at issue here only permits warrantless inspection by specified categories of individuals, and the officers of the Abington Township Police Department are not among those individuals — especially absent evidence that they were authorized by the PLCB. 47 Pa. Stat. Ann. § 5-513; Black, 530 A.2d at 430. Thus, viewing the allegations in the light most favorable to the Plaintiffs, the sweeps were not in accordance with the regulatory scheme, and the District Court erred in finding that the closely regulated industry exception to the warrant requirement applied based on the record before it. By alleging that Abington Township police officers entered the premises without a warrant, the Plaintiffs have alleged sufficient facts to survive a 12(b)(6) motion. We therefore vacate the District Court's dismissal of their Fourth Amendment claim.
B.
40
The Plaintiffs also allege that the District Court erred by granting summary judgment in favor of the Defendants on their Fourteenth Amendment claim. We review a district court's grant of summary judgment de novo, applying the same test the district court would have used initially. See, e.g., Gordon v. Lewistown Hosp., 423 F.3d 184, 207 (3d Cir.2005). That is, 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 as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The District Court's grant of summary judgment against the Plaintiffs was predicated on their failure to advance evidence from which a jury could conclude that a municipal policy or custom caused their injury.
41
In Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipal liability under 42 U.S.C. § 1983 cannot be based on the respondeat superior doctrine, but must be founded upon evidence that the government unit itself supported a violation of constitutional rights. Id. at 691-95, 98 S.Ct. 2018; see also Bielevicz v. Dubinon, 915 F.2d 845, 849-50 (3d Cir.1990). Municipal liability only attaches when the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 694, 98 S.Ct. 2018; Bielevicz, 915 F.2d at 850.
42
Thus, there are two ways that a plaintiff can establish municipal liability under § 1983: policy or custom. Under Monell, a plaintiff shows that a policy existed "when a `decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Bielevicz, 915 F.2d at 850 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986))). A plaintiff may establish a custom, on the other hand, "by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Id. (citing Andrews, 895 F.2d at 1480). In other words, custom may be established by proving knowledge of, and acquiescence to, a practice. Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir.1989).
43
It is clear under either route that "a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom." Bielevicz, 915 F.2d at 850 (citing Andrews, 895 F.2d at 1480). In order to determine who has policymaking responsibility, "a court must determine which official has final, unreviewable discretion to make a decision or take an action." Andrews, 895 F.2d at 1481. It is undisputed that Chief Kelly is the relevant decisionmaker in this case.
44
In addition to proving that an unlawful policy or custom existed, a plaintiff also bears the burden of proving that such a policy or custom was the proximate cause of the injuries suffered. Bielevicz, 915 F.2d at 850 (citing Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). As we have explained, "[a] sufficiently close causal link between ... a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom." Bielevicz, 915 F.2d at 851 (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir.1987)).
45
In this case, the Plaintiffs submitted evidence that, at best, supports an inference that racial profiling was a common practice in the Department to increase the number of traffic tickets issued during the twenty-eight years Kelly was there, including during the time Chief Kelly was chief of police. According to Kelly, Chief Kelly should have known about this profiling because most of the Department knew. In addition, the Plaintiffs submitted evidence suggesting that Abington Township police officers regularly used racial slurs, and Kelly claimed that he was unaware of anyone ever being punished for them. According to Kelly's sworn testimony, Chief Kelly would have known about the profiling and racial slurs unless he was "totally absent," which he was not.
46
Assuming that this evidence, viewed in the light most favorable to the Plaintiffs, raises a genuine issue of material fact as to the Department's practices regarding racial profiling, the problem facing these Plaintiffs is that any evidence of a policy or custom ends in 1993 — five years before the first instance of misconduct alleged in this case. The only evidence they have after Gerald Kelly retired from the police force consists of affidavits regarding the behavior that is the subject of their complaint. James Barry, for example, asserted based on his personal observations as a floor manager at the Scoreboard that officers disproportionally harassed and stopped African-Americans customers in 1998 and 1999. Robert Kennedy, another Scoreboard employee, averred that he had witnessed an Abington Township police officer harassing an African-American customer. And Eugene Chapman, a Scoreboard customer, claimed that he had been stopped by officers when leaving the establishment for no apparent legitimate reason.
47
Even assuming these assertions are true, they raise no inference of a policy or practice of discrimination by the Department. As we clearly explained in Bielevicz, "a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom." 915 F.2d at 850 (citing Andrews, 895 F.2d at 1480). The Plaintiffs have produced no evidence relating to any decisionmaker within the Department after 1993, nor do they even argue that what happened at the Scoreboard was so widespread that a decisionmaker must have known about it. Under these circumstances, a Plaintiff does not raise a reasonable inference of a well-settled custom by restating the behavior that is the subject of their complaint.
48
The time lapse here is even more troubling in light of the character of the evidence in the record. As noted above, "[a] sufficiently close causal link between ... a known but uncorrected custom ... and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom." Bielevicz, 915 F.2d at 851. Typically, "[a]s long as the causal link is not too tenuous, the question whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury." Id. Here, however, the only evidence advanced by the Plaintiffs is evidence that officers at one point may have used racial profiling as a way to increase the number of traffic tickets they were writing and may have used racial slurs. This evidence is simply too general to sustain their claims. Our cases under Monell have typically involved an alleged constitutional violation that was an actual occurrence of the specific alleged custom. In Bielevicz, for example, we found that there was sufficient evidence of a custom of arresting people for public intoxication without probable cause to support a § 1983 claim that the plaintiff had been arrested for public intoxication without probable cause. 915 F.2d at 851-52. Similarly, in Beck v. Pittsburgh, 89 F.3d 966 (3d Cir. 1996), we found that the plaintiff's § 1983 claim for police brutality could survive a motion for judgment as a matter of law based on evidence of the department's alleged custom of ignoring police brutality. Id. at 976. Here, the Plaintiffs do not have evidence that the Abington Township Police Department had a custom of raiding establishments associated with African-Americans. Nor do they present evidence suggesting that racism permeated the Department to such an extent that causation could be inferred absent evidence of a custom relating to the specific constitutional violation alleged. Coupled with the fact that their evidence is not from the relevant time-frame, the Plaintiffs have not advanced sufficient evidence to raise a triable issue of fact on their Fourteenth Amendment claim. Consequently, the District Court did not err by granting summary judgment in favor of the Defendants.
III.
49
For the foregoing reasons, we will vacate the District Court's dismissal of the Plaintiffs' Fourth Amendment claim, and affirm its grant of summary judgment in favor of the Defendants on the Plaintiffs' Fourteenth Amendment claim. The case will be remanded to the District Court for further proceedings consistent with this opinion.
Notes:
*
The Honorable Myron H. Bright, United States Circuit Judge for the Eighth Circuit, sitting by designation
1
Chief William Kelly — of no relation to Plaintiff Gerald Kelly — was Abington Township's police chief from 1986 through the time the events relevant to this case occurred
2
Watson died on December 25, 2004
3
The Defendants dispute this account, claiming that they had no knowledge of Watson before May 10, 1999, when he was involved in a shooting near his residence. They also claim to have received numerous complaints about Watson's business dealings, which led to an investigation in 2000. For the purposes of this matter, however, we are required to view the record in the light most favorable to the Plaintiffs. In particular, when considering the Fourth Amendment claim dismissed pursuant to Fed.R.Civ.P. 12(b)(6), we must accept the Plaintiffs' allegations as trueLangford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000).
4
Here, the Plaintiffs' complaint alleged the following in relation to their Fourth Amendment claim:
54
As a result of the Plaintiffs Gerald W. Kelly and Scoreboard's social and professional association with Plaintiff Watson, an African-American, Defendants ... through their agents, servants, and/or employees, prior to February 10, 2000, commenced a systematic practice of sending 15 to 20 uniformed Abington Township police officers, in marked cars and without a warrant, into the Scoreboard Restaurant and Tavern allegedly for the purpose of investigation [sic] underage drinking
55
During these police raids, as described in above paragraph 54, the police officers would not allow anyone to either enter or leave the Scoreboard Restaurant & Tavern
56
During the police raids as described in above paragraph 54, the police officers would surround the Scoreboard Restaurant & Tavern in marked police cars with their flashing lights operating
57
The practice of sending in several uniformed police officers into the Scoreboard Restaurant without a warrant ... was an illegal and unjustified seizure
....
101
In the manner, described ... all Defendants deprived Plaintiffs of their rights to be [sic] equal protection of the law, freedom from unlawful search and seizure, freedom from intentional infliction of emotional distress and to due process of law. These rights are secured to the Plaintiffs by the provisions of the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution and by Title 42 U.S.C. Sections 1983 and 1985
5
The record also contains deposition testimony taken after the Fourth Amendment claim was dismissed wherein Abington Township police officers claim that some of the sweeps were conducted in conjunction with the PLCB, but this was not part of the record when the claim was dismissed, and we are required to credit the Plaintiffs' allegations over assertions by the moving partySee Langford, 235 F.3d at 847.
6
The "enforcement bureau" refers to the Bureau of Liquor Control Enforcement of the Pennsylvania State Police. 47 Pa. Stat. Ann. § 1-102
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101 F.3d 686
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.Phyllis M. LLOYD, Plaintiff-Appellant,v.Shirley S. CHATER, in her official capacity as Commissionerof Social Security, Defendant-Appellee.
No. 95-6235.
United States Court of Appeals, Second Circuit.
May 6, 1996.
1
Lawrence I. Heller, Rochester, NY, for Appellant.
2
Maria P. Fragassi, Ass't Reg. counsel, SSA, NY, NY, for Appellee.
3
Before KEARSE, ALTIMARI, Circuit Judges, and MORAN, District Judge*.
4
This cause came on to be heard on the transcript of record from the United States District Court for the Western District of New York, and was argued by counsel.
5
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed substantially for the reasons stated in Judge Larimer's Amended Decision and Order dated August 24, 1995.
6
Plaintiff Phyllis Lloyd appeals from a judgment entered in the United States District Court for the Western District of New York, David G. Larimer, Judge, affirming the decision of the Commissioner of Social Security ("Commissioner")(successor to Secretary of Health and Human Services) denying disability insurance benefits. On appeal, Lloyd contends, inter alia, that the Commissioner erred in finding, without the aid of a vocational expert, that she could perform sedentary work and hence was not disabled. We find all of her contentions unpersuasive.
7
A factual determination by the Commissioner must be given conclusive effect by the courts if it is supported by "substantial evidence" in the record as a whole. See 42 U.S.C. § 405(g); Mathews v. Eldridge, 424 U.S. 319, 339 n. 21 (1976); Richardson v. Perales, 402 U.S. 389, 390 (1971); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980). "Substantial evidence" means " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
8
In the present case, we conclude that the record contains substantial evidence to support the Commissioner's determination that Lloyd was capable of working in a job that required her to sit, "with normal breaks," for a total of approximately six hours out of an eight-hour workday, see Program Policy Statement, Titles II and XVI: Determining Capability To Do Other Work--The Medical-Vocational Rules of Appdendix 2, SSR 83-10, 1983 WL 31251, at * 5. Dr. Nicholas, Lloyd's treating physician, recommended that Lloyd work if she could find a sedentary job. Dr. Peale, an examining physician, also said Lloyd could do sedentary work. Though Dr. Borgese, who filled out an evaluation form based on his review of the documentary record, checked a box indicating that Lloyd could "[s]it (with normal breaks) for a total of less than about 6 hours in an 8-hour workday," he neither treated Lloyd nor examined her, and the Commissioner was not required to give his evaluation definitive weight. At the hearing, Lloyd testified that she could sit for 1 1/2 hours at a time, could stand for 10-15 minutes, and was willing to try a sedentary job. We conclude that the record as a whole provided substantial evidence that Lloyd could work in a sedentary eight-hour job in which she would not be required to sit for a total of more than six hours. The Commissioner was not required to seek expert vocational testimony because the impairments claimed by Lloyd were nonexertinal. See 20 C.F.R. § 404.1566(e).
9
Nor can we conclude that the Commissioner erred in not finding that Lloyd's pain was so severe as to be disabling. "[D]isability requires more than mere inability to work without pain. To be disabling, pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment." Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir.1983). The record included substantial evidence to support the conclusion that Lloyd's pain was not disabling.
10
We have considered all of Lloyd's contentions on this appeal and have found in them no basis for reversal. The judgment of the district court is affirmed.
*
Honorable James B. Moran, of the United States District Court for the Northern District of Illinois, sitting by designation
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539 F.2d 242
176 U.S.App.D.C. 240, 4 O.S.H. Cas.(BNA) 1497
Dayton Tire & Rubber Co.v.Occupational Safety and Health Review Commission andSecretary of Labor
No. 75-1316
United States Court of Appeals, District of Columbia Circuit
6/10/76
1
O.S.H.R.C.
2
AFFIRMED*
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J-S32011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIA WILLIAMS :
:
Appellant : No. 1973 EDA 2018
Appeal from the Judgment of Sentence Entered July 21, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007810-2014
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 19, 2019
Appellant Dia Williams appeals from the judgment of sentence imposed
after he was convicted of aggravated assault, possession of an instrument of
crime, terroristic threats, and simple assault.1 Appellant argues that the
evidence was insufficient to sustain his conviction for aggravated assault
because the Commonwealth failed to disprove his self-defense claim. He also
challenges the weight of the evidence. We affirm.
The trial court summarized the facts of this matter as follows:
On the evening of June 20, 2014, at 5711 Master Street in West
Philadelphia, a verbal and physical altercation occurred between
[Appellant], and the [victim], landlord Demond Gallman[,] in the
basement of that rental property. [The victim] responded to
another tenant’s complaint regarding loss of electricity in her unit
by inspecting the fuse box in the basement of the property and
observed that the wires in the fuse box had been pulled out and
disconnected. [Appellant] then approached [the victim] for
____________________________________________
1 18 Pa.C.S. §§ 2702(a), 907(a), 2706(a), 2701(a).
J-S32011-19
shutting off his electricity due to unpaid rent and asked [the
victim] if he would be turning [Appellant]’s electricity back on.
When [the victim] refused to do so, the [Appellant] responded:
“Well nobody’s electric is getting cut back on.” [Appellant] then
reached for [the victim]’s wire cutters and refused to return them
to [the victim]. [Appellant] pushed [the victim] away using one
hand with force, causing [the victim] to respond by striking the
[Appellant]’s face with his fist. [Appellant] responded to [the
victim]’s strike by continuously swinging directly in a stabbing
motion at [the victim]’s left temple with his right fist—with the
wire cutters in [Appellant]’s right hand. [The victim]’s chin was
cut during the altercation, which resulted in significant blood loss
and ten stitches. [Appellant] attempted to flee by running to his
room in the rental property. [The victim] followed [Appellant] to
his room and observed the window screen missing. Police officers
found [Appellant] at the stoop of the back door of the rental
property, unable to move due to injury from jumping out of his
room’s window.
Police officers recovered the wire cutters used by [Appellant], and
traces of blood on the basement door and floor at the scene of the
altercation. Medical records for [the victim]’s treatment and
images of facial injuries to [the victim]’s chin were produced for
trial. Police officers also recovered audio recordings of a third
party tenant, Ms. Roberts.
Trial Ct. Op., 7/20/18, at 1-2 (record citations and some capitalization
omitted).
On December 5, 2016, the matter proceeded to a bench trial, at which
both the victim and Appellant testified. At the conclusion of trial, the trial
court found Appellant guilty of the foregoing crimes. On February 24, 2017,
Appellant filed a post-verdict motion arguing that he “had a right to defend
himself and this was a mutual combat situation caused by the alleged victim.”
See Post-Verdict Mot., 2/24/17. The trial court denied Appellant’s motion on
April 13, 2017.
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On July 21, 2017, the trial court held a sentencing hearing. Appellant
moved for extraordinary relief under Pa.R.Crim.P. 704(b) on the basis that he
acted in self-defense. See N.T. Sentencing Hr’g, 7/21/17 at 6. The trial court
denied Appellant’s motion and sentenced him to five to ten years’
incarceration. On July 31, 2017, Appellant timely filed a post-sentence motion
preserving a challenge to the weight of the evidence. The trial court denied
Appellant’s motion on August 2, 2017.
On August 30, 2017, Appellant filed a timely notice of appeal. On
November 9, 2017, this Court dismissed Appellant’s appeal for failure to file a
docketing statement. See Pa.R.A.P. 3517. On February 20, 2018, Appellant
filed a petition to reinstate his appellate rights nunc pro tunc, which the trial
court granted on February 22, 2018. On March 23, 2018, Appellant filed a
petition under the Post Conviction Relief Act2 (PCRA), again seeking a
reinstatement of his appellate rights.
On June 1, 2018, the trial court reinstated Appellant’s right to file a
direct appeal nunc pro tunc. That same day, Appellant filed a timely notice of
appeal. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement
on June 27, 2018, and raised the following claims:
1. Th[e trial] court erred, abused its discretion, and unfairly
prejudiced [Appellant], because the verdict was against the
weight of the evidence.
2. Th[e trial] court erred, abused its discretion, and unfairly
prejudiced [Appellant], because the evidence was insufficient to
____________________________________________
2 42 Pa.C.S. §§ 9541-9546.
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J-S32011-19
convict [Appellant] of aggravated assault. There was insufficient
evidence to prove [Appellant] attempted “to cause serious bodily
injury to another, or cause[d] such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme
indifference to the value of human life.” Moreover, there was
insufficient evidence to prove [Appellant] attempted “to cause or
intentionally or knowingly cause[d] bodily injury to another with a
deadly weapon.”
Appellant’s Rule 1925(b) Statement, 6/27/18, at 1-2 (citations and some
capitalization omitted). The trial court issued a Rule 1925(a) opinion asserting
that Appellant’s claims were meritless.
Appellant raises two issues on appeal:
[1.] Whether the evidence was sufficient as a matter of law to
convict [Appellant] of aggravated assault[.]
[2.] Whether the verdict was against the weight of the evidence.
Appellant’s Brief at 8 (full capitalization omitted).
In his first issue, Appellant argues that the Commonwealth failed to
present sufficient evidence to rebut his claim of self-defense. Id. at 15. In
support, Appellant refers to his own trial testimony, and concludes that (1)
the victim “caused, and then escalated, the physical altercation[;]” (2) the
victim prevented Appellant from retreating; and (3) there was no evidence to
show that Appellant did not reasonably believe he was in danger of death or
serious bodily injury. Id. at 18.
Initially, we note that Appellant did not preserve this issue in his Rule
1925(b) statement. Likewise, the trial court did not address it. Appellant’s
claim is therefore waived. See Commonwealth v. Castillo, 888 A.2d 775,
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780 (Pa. 2005); see also Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not
included in the Statement and/or not raised in accordance with the provision
of this paragraph (b)(4) are waived”).
Even if Appellant properly preserved his claim, we would find it
meritless. Our standard of review in this context is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard or review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa. Super. 2017)
(citations, brackets, and quotation marks omitted), appeal denied, 187 A.3d
908 (Pa. 2018).
Under the Crimes Code, self-defense is included under the defense of
justification, which is a complete defense to criminal liability. See 18 Pa.C.S.
§ 502. We have explained that
[t]he use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the other
person. See 18 Pa.C.S. § 505(a). When a defendant raises the
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J-S32011-19
issue of self-defense, the Commonwealth bears the burden to
disprove such a defense beyond a reasonable doubt. While there
is no burden on a defendant to prove the claim, before the defense
is properly at issue at trial, there must be some evidence, from
whatever source, to justify a finding of self-defense.
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa. Super. 2008) (citation
omitted).
To disprove a defendant’s claim of self-defense, the Commonwealth
must establish at least one of the following:
1) the accused did not reasonably believe that he was in danger
of death or serious bodily injury; or 2) the accused provoked or
continued the use of force; or 3) the accused had a duty to retreat
and the retreat was possible with complete safety. It remains the
province of the jury to determine whether the accused’s belief was
reasonable, whether he was free of provocation, and whether he
had no duty to retreat.
Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005)
(quotation marks and citations omitted).
“When the defendant’s own testimony is the only evidence of self-
defense, the Commonwealth must still disprove the asserted justification and
cannot simply rely on the [fact-finder’s] disbelief of the defendant’s
testimony[.]” Commonwealth v. Smith, 97 A.3d 782, 788 (Pa. Super.
2014). “If there are other witnesses, however, who provide accounts of the
material facts, it is up to the fact finder to ‘reject or accept all, part or none of
the testimony of any witness.’ The complainant can serve as a witness to the
incident to refute a self-defense claim.” Id. (citations omitted).
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J-S32011-19
Here, the victim testified that Appellant took the victim’s wire cutters
and then shoved the victim when he attempted to grab them. In response,
the victim punched Appellant, who retaliated by swinging the wire cutters
toward the victim’s head in a stabbing motion and eventually striking him.
Viewing this evidence in the light most favorable to the Commonwealth as
verdict winner, there was sufficient evidence to show that Appellant provoked
or continued the use of force. See Smith, 97 A.3d at 788 (stating that a
defendant “must be free from fault in provoking or escalating the altercation
that led to the offense” (emphasis and citation omitted)); McClendon, 874
A.2d at 1230. Therefore, Appellant’s sufficiency claim fails.
In his next claim, Appellant argues that the verdict was against the
weight of the evidence. Appellant’s Brief at 21. Specifically, he asserts that
the victim’s testimony was “vague, tenuous, and uncertain.” Id. at 23. He
also claims that the victim displayed “malevolence” towards Appellant, which
“compels the determination that the [t]rial [c]ourt should not have believed
the witness.” Id. at 24. Appellant concludes that because the victim was not
credible, the verdict was against the weight of the evidence, and the trial court
should have granted him a new trial. Id.
Our standard of review regarding challenges to the weight of the
evidence is well settled:
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the [fact-finder] is
-7-
J-S32011-19
free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a weight
of the evidence claim is only warranted where the [fact-finder’s]
verdict is so contrary to the evidence that it shocks one’s sense of
justice. In determining whether this standard has been met,
appellate review is limited to whether the trial judge’s discretion
was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of
discretion.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (citation
omitted).
We have explained that
[a] new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would have
arrived at a different conclusion. Rather, the role of the trial court
is to determine that notwithstanding all the evidence, certain facts
are so clearly of greater weight that to ignore them, or to give
them equal weight with all the facts, is to deny justice. A motion
for a new trial on the grounds that the verdict is contrary to the
weight of the evidence concedes that there is sufficient evidence
to sustain the verdict; thus the trial court is under no obligation
to view the evidence in the light most favorable to the verdict
winner.
Id. (citation omitted). Further, “[b]ecause the trial judge has had the
opportunity to hear and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that the verdict is
against the weight of the evidence.” Id. (citation omitted). “One of the least
assailable reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of the evidence
-8-
J-S32011-19
and that a new trial should be granted in the interest of justice.” Id. (citation
omitted).
Here, the trial court explained that it
rendered its verdict with ample record of credible evidence. The
Commonwealth produced audio records of the separate 911 calls
on behalf of a third-party resident, medical records and
documentation of head injury to the [victim], testimony from [the
victim], [Appellant], and law enforcement personnel—all
corroborating the attack on [the victim] on June 20, 2014. This
[c]ourt, in its proper discretion, placed higher evidentiary weight
on the testimony of the complaining witness than that of
[Appellant], whose testimony lacked credibility.
Trial Ct. Op. at 5.
Following our review, we discern no abuse of discretion in the trial
court’s ruling. See Landis, 89 A.3d at 699. The trial court found the victim’s
testimony more credible than that of Appellant. Therefore, the trial court
appropriately concluded that its verdict was not so contrary to the evidence
as to require a new trial. See id. Further, we decline to reassess the
credibility of the Commonwealth’s witnesses and to reweigh the testimony and
evidence presented at trial. See Commonwealth v. West, 937 A.2d 516,
523 (Pa. Super. 2007) (emphasizing that the trier of fact is “free to believe
all, part or none of the evidence,” and “[t]his Court may not [re]weigh the
evidence or substitute its judgment [f]or that of the fact finder” (citation
omitted)). Accordingly, Appellant’s challenge to the weight of the evidence
merits no relief.
Judgment of sentence affirmed.
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J-S32011-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
- 10 -
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258 S.W.3d 383 (2007)
Martha JONES, Appellant,
v.
John G. VOWELL, DDS, and Robbie Atkinson, DDS, Appellees.
No. CA 06-1079.
Court of Appeals of Arkansas.
June 6, 2007.
*384 W. Bruce Leasure, Little Rock, AR, for appellant.
*385 Friday, Eldredge & Clark, LLP, by: Alan G. Bryan, Little Rock, AR, for appellee John G. Vowell, DDS.
Angel Law Firm, PLLC, by: Richard L. Angel, Little Rock, AR, for appellee Robbie R. Atkinson, DDS.
KAREN R. BAKER, Judge.
Appellant Martha Jones appeals from the dismissal of her dental-malpractice case against appellees Drs. John G. Vowell and Robbie Atkinson. We reverse and remand.
Appellant first sued appellees on March 7, 2001. However, she took virtually no action on her case, and it was dismissed without prejudice on March 15, 2005, for lack of prosecution. On May 12, 2005, appellant re-filed her case.
On June 2, 2006, a hearing was held in appellant's re-filed case. The subject of the hearing is not stated in the record, and neither appellant nor her counsel were present at the hearing. When the case was called and appellant and her attorney was not present, court personnel "called the hall" three times, with no response. The trial judge then stated: "Okay, hall sounded, no response. Case dismissed." On June 8, 2006, an order of dismissal was entered, stating:
On this date, Plaintiff and Defendant in the above styled action came on for hearing. The hall was sounded and the plaintiff failed to respond. Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure, this case is hereby DISMISSED WITH PREJUDICE.
Appellant now appeals from that order and argues that the dismissal was in error for the following reasons: 1) she received no notice of the hearing and thus her due-process rights were violated; 2) the trial judge failed to inquire as to whether she received notice; 3) the trial judge did not notify her, prior to the dismissal, that he intended to dismiss her complaint, as required by Rule 41(b); 4) she was, at the time of the dismissal, actively prosecuting her case. Our standard of review is for an abuse of discretion. Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998).
Upon reviewing the parties' briefs and arguments, we agree with appellant that the trial court abused its discretion and that the dismissal of her case violated due process as well as Ark. R. Civ. P. 41(b). Rule 41(b) permits involuntary dismissal "in any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months...." The availability of dismissal for "inaction" or failure to prosecute is a tool for trial courts to dispose of cases "filed and forgotten." Prof. Adjustment Bureau, Inc. v. Strong, 275 Ark. 249, 251, 629 S.W.2d 284, 285 (1982). However, appellant's case did not fall into that category. During the approximately twelve-month period between the filing of her complaint and the dismissal, appellant propounded discovery, responded to motions, answered discovery (although, according to appellees, in an unsatisfactory manner), and sat for a deposition (which was discontinued part-way through).[1] In fact, her last activity occurred a little more than two weeks before the hearing when she responded to appellee *386 Vowell's motion to compel and filed her own motion to compel. Given these facts, it cannot be said that there was "no action shown on the record for the past 12 months." See Ark. R. Civ. P. 41(b).
Rule 41(b) also provides that "the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court's docket." No such notice was sent here. Appellees cite cases recognizing a court's inherent power to dismiss for failure to appear or failure to prosecute without prior notice of dismissal, but those cases are distinguishable from the case at bar. See Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (upholding dismissal where the petitioner's counsel failed to attend a pretrial conference that he knew about but which, he contended, he was too busy to attend); Florence v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996) (dismissing the plaintiffs' complaint when they failed to appear for a jury trial that they knew had been scheduled); Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992) (dismissing where CNA disobeyed the court's order to substitute itself as the real party in interest within ten days); and Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979) (dismissing where a case remained pending over thirteen years with only intermittent activity).
Unlike the long period of inactivity in Gordon, which the court characterized as a "virtual hibernation," this case had been pending for approximately one year at the time of dismissal, with ongoing activity in the case. And, unlike the wilfully disobedient behavior or outright disregard displayed by the parties in Link, Florence, and CNA, the appellant in this case did not pointedly disobey a court order or refuse to attend a hearing about which she had unquestionably been notified. As the Supreme Court recognized in Link, the circumstances of a case should be considered in determining whether to provide advance notice that dismissal is being considered:
It is true, of course, that "the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked." Anderson National Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 88 L.Ed. 692. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.
370 U.S. at 632, 82 S.Ct. 1386 (emphasis added). The circumstances in the present case involve a dismissal based upon appellant's failure to attend a hearing. Further, the record does not indicate that the trial court conducted a review of the record or made an inquiry, prior to dismissal, to determine whether appellant had notice, as was done in Gore v. Heartland Community Bank, 356 Ark. 665, 158 S.W.3d 123 (2004). We therefore conclude that this case called for the trial court to comply with Rule 41(b) and give notice of its intention to dismiss. See also S.W. Water Co., Inc. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955) (acknowledging, in a case decided prior to Rule 41(b), the value of permitting *387 a party to explain the reason for any delay in prosecution).
Appellees urge us however, to consider the possibility that appellant's case was not dismissed under Rule 41(b) for failure to prosecute but was instead dismissed for failure to comply with discovery rules. See Ark. R. Civ. P. 37(d) (2007) (listing dismissal among several possible sanctions for certain discovery violations). Clearly, there were pending discovery issues to be resolved in this case. At the time of the hearing, appellee Vowell had filed a motion to compel in which he sought from appellant answers to requests for production and additional answers to interrogatories. Vowell also noted in his motion that both he and Atkinson had attempted, by letter, to obtain further information from appellant about her case, to no avail. The motion requested costs and fees as sanctions, the entry of an order to compel, and, if the order was not complied with, dismissal. However, we see no indication in the court's statements at the hearing or in the court's order that discovery violations were contemplated as a basis for dismissal. Nor do we believe it is our province to conclude, without benefit of a clear ruling by the trial court, that the "extraordinary" discovery sanction of dismissal was warranted in this case. See Coulson Oil Co. v. Tully, 84 Ark.App. 241, 139 S.W.3d 158 (2003) (recognizing that discovery sanctions such as dismissal are extraordinary and should be used sparingly, usually in the case of flagrant violations). We therefore decline to adopt this reasoning as justification for the court's summary dismissal.
We next consider the possibility that the trial court dismissed appellant's case simply because of her failure to appear at the hearing. A trial court has the power to dismiss a case when a party fails to appear, Florence, supra. However, unlike the plaintiff in Florence, who failed to appear for a trial that her attorney indisputedly knew had been scheduled, this appellant asserts that neither she nor her attorney received notice of the hearing. The record includes no document or letter showing that notice of the hearing was sent to appellant or her attorney, despite appellant's having designated as the record on appeal "all of the Circuit Court record, and the transcript of the hearing held on June 6[sic], 2006." It therefore appears on this record that appellant's case was dismissed based on her failure to attend a hearing of which she had no notice, which violates one of the basic tenets of due process. See Florence, supra.
On this point, appellees argue that appellant's claim of lack of notice is procedurally barred because she has not produced a record showing that she, in fact, did not receive notice. See generally Jones v. Jones, 43 Ark.App. 7, 858 S.W.2d 130 (1993) (holding that the burden is on the appellant to bring up a record sufficient to demonstrate error). However, the difficulty faced by appellant in this particular situation is obvious, i.e., proving that something does not exist. We believe that, under the circumstances, appellant did what she was required to do to demonstrate error to this court. She ordered the entire circuit court record, which does not show that notice was sent, and she ordered a transcript of the hearing, which likewise offers no indication that notice was sent.[2]
*388 It is further argued by appellees that appellant was not prejudiced by any lack of notice because she had responded in writing to Vowell's motions. This argument misses the point. Appellant is not complaining that she never had the opportunity to respond to Vowell's motions; rather, her complaint is that her case was summarily dismissed on the erroneous premise that she intentionally failed to appear or failed to prosecute her case. The prejudice that she suffered was dismissal of her case, not that she was precluded from addressing Vowell's arguments.
Appellees also claim that appellant is raising her notice argument for the first time on appeal. See, e.g., Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003) (refusing to consider a new argument on appeal as to why summary judgment was improper); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (refusing to consider on appeal certain arguments that the appellant had not made in her response to the appellees' motion to dismiss); Oglesby v. Baptist Med. Sys., 319 Ark. 280, 891 S.W.2d 48 (1995) (refusing to consider for the first time on appeal the appellant's argument that an affidavit supporting the appellee's motion for summary judgment was improper). However, unlike the appellants in those cases, the appellant here had no opportunity, prior to entry of the court's ruling, to assert her argument. The record supports appellant's contention that she did not know until after the entry of the final order that her case had been dismissed. She therefore had no reason, prior to the dismissal of her case, to apprise the trial court of any argument regarding lack of notice. As for appellees' contention that appellant should have filed a postjudgment motion to inform the court that she had not received notice, we do not believe that such a motion was required. Had the trial court inquired, before dismissing the case, as to whether appellant had been notified of the hearing, or had the court notified appellant that it intended to dismiss her case, as contemplated by Rule 41(b), the question of whether appellant received notice of the hearing would have been before the court. In other words, the trial court had the means to determine the situation regarding notice or lack thereof but instead dismissed the case without inquiry. Although appellant might have explained her circumstances in a postjudgment motion, nothing required that she do so.
For the reasons stated, the trial court's order of dismissal is reversed and remanded.
BIRD and VAUGHT, JJ., agree.
NOTES
[1] Appellant unquestionably failed to actively prosecute her case in her first filing, which was ultimately dismissed, but we do not consider her lack of activity in that case as relevant to whether she actively prosecuted this case. We note that appellees' counsel agreed during oral argument that appellant's dilatory conduct in the first case was "water under the bridge."
[2] In Gore, supra, which involved an appellant who claimed he had not received notice of a hearing, the appellee supplemented the record to include a copy of a hearing notice sent to the appellant. Appellees in this case supplemented the record but included no notice of the hearing in their supplemented record.
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501 S.W.2d 769 (1973)
Walter SMITH and B. J. McAdams, Inc., Appellants,
v.
Ralph NELSON, Appellee.
No. 73-162.
Supreme Court of Arkansas.
December 3, 1973.
Smith, Williams, Friday, Eldredge & Clark by Frederick S. Ursery, Little Rock, for appellants.
Howell, Price, Howell & Barron, Little Rock, for appellee.
HOLT, Justice.
A jury awarded appellee $2,000 for compensatory damages in a cause of action based upon malicious prosecution and abuse of process. The sole contention on appeal is that the abuse of process instruction was not warranted by the evidence.
In determining if the evidence is sufficient to submit a cause or issue to the jury, we review the evidence most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W.2d 689 (1935). Appellee Nelson was hired by appellant McAdams as an assistant driver to Harold Starnes in the operation of one of McAdams' fleet of tractor trailer rigs. During several out of state deliveries, the truck was dispatched to Los Angeles, California, where Starnes and Nelson arrived on Monday, June 29, 1970. The load was delivered and the two drivers checked into a motel. Tuesday morning Starnes called McAdams' dispatcher for further instructions and requested additional expense money. Company policy required a call each day from them. The dispatcher informed Starnes that no loads were available and that additional living expense money had been wired to Jerry's Richfield Truck Stop. Starnes and Nelson proceeded to the truck stop but found no money for them. Starnes again called the dispatcher and *770 was reassured that this expense money had been sent there. The two drivers again ascertained that no funds were there and also checked with the local Western Union where they found no money for them. Both were broke and appellee had to borrow funds. A call was made every day requesting financial relief and hauling instructions until appellee's arrest on Sunday, July 5. It appears that upon Nelson's call on July 5 unpleasant words were exchanged between him and the dispatcher, resulting in Nelson's refusal to tell the dispatcher the whereabouts of the truck other than it was in the vicinity. Nelson, however, furnished his address and telephone number and the local police arrived soon thereafter with a warrant for Nelson and Starnes' arrest. During the week the warrant had been sworn out by appellant Smith at the direction of appellant McAdams. The warrant charged Nelson and Starnes with larceny by bailee. Ark.Stat. Ann. § 41-3929 (Repl.1964). Upon his arrest Nelson took the deputies to the nearby truck. Appellant McAdams immediately sent a driver to Los Angeles to pick up his truck. Appellee Nelson and Starnes waived extradition and were returned to Little Rock where the alleged offense was dismissed by the local municipal court.
At trial McAdams adduced evidence that for several days he could not locate appellee Nelson and Starnes or the whereabouts of his property and his purpose in procuring the warrant was the return of his truck. He further testified that he did not intend to have the men arrested and neither knew nor cared whether the two drivers were tried on the charges.
The requirements giving rise to a cause of action for abuse of process are found in Prosser, Law of Torts, § 121 (4th Ed. 1971), and are:
(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but,
(2) perverted to accomplish an ulterior purpose for which it was not designed, and
(3) a wilful act in the use of process not proper in the regular conduct of the proceeding.
See also Harper and James, I The Law of Torts, § 4.9 (1956), and generally 72 C.J.S. Process § 120, p. 1189, and 1 Am.Jur.2d 250. A paucity of cases involving this type of a tort have reached the appellate level in this jurisdiction. The leading case dealing with the cause of action is Lewis v. Burdine, 240 Ark. 821, 402 S.W.2d 398 (1966), where a wife was sued by a collection agency for her husband's debt to a doctor. In the same suit a writ of garnishment was issued before judgment and the wife's salary impounded resulting in her loss of employment. The wife was found not liable on the debt. The writ of garnishment was held to have been a misuse or abuse of process. See also Baxley v. Laster, 82 Ark. 236, 101 S.W. 755 (1907), dealing with abuse of process and writs of garnishment issued for the purpose of harassment.
The crux of the misuse or abuse of process is the improper use of it after issuance. In other words, abuse of process constitutes a form of extortion or coercion. Prosser, supra. The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar. Here we have no abuse or coercive act subsequent to the issuance of the warrant. Although it be said that McAdams' testimony confirmed an ulterior purpose in procuring the warrant, no coercive act followed such as existed by the writ of garnishment in Lewis v. Burdine, supra. Without the coercive distinction every action for malicious prosecution would include the tort of abuse of process. Certainly it cannot be said that the reclaiming *771 of one's own property, as in the case at bar, should be characterized as a subsequent act that constituted a perverted use of the warrant. We hold that the facts, when viewed most favorably to appellee, do not support a submissible issue on abuse of process.
Reversed and remanded.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3661
___________
AIMAL KHAN,
Appellant
v.
PENN STATE – MILTON S. HERSHEY MEDICAL CENTER HOSPITAL
PENN STATE COLLEGE OF MEDICINE
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-11-cv-00128)
District Judge: Honorable John E. Jones III
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 18, 2014
Before: HARDIMAN, NYGAARD and ROTH , Circuit Judges
(Opinion filed: June 13, 2014)
___________
OPINION
___________
PER CURIAM
Aimal Khan appeals pro se from the District Court’s order granting summary
judgment in favor of the Milton S. Hersey Medical Center (“MSHMC”) and dismissing
his complaint. We will affirm.
I.
In early 2011, Khan filed a complaint in the District Court. In his Second
Amended Complaint (hereinafter “the complaint”), Khan alleged that, in retaliation for
taking leave under the Family and Medical Leave Act in late 2007 and early 2008,
MSHMC failed to renew his residency fellowship in 2010. He also argued that MSHMC
treated him differently than the other residents in his program on account of his use of
FMLA leave, and he charged MSHMC with breach of contract, tortious interference with
prospective contractual relations, and negligent and intentional infliction of emotional
distress. He sought attorney’s fees, prospective injunctive relief, lost pay, and damages.
MSHMC filed a motion to dismiss, which the District Court granted as to all
claims except Khan’s retaliation claim. After discovery, MSHMC moved for summary
judgment, arguing, inter alia, that (1) a two-year statute of limitations should apply to
Khan’s claims pursuant to 29 U.S.C. § 2617(c); (2) Khan had not established a prima
facie case of retaliation under the FMLA, as he had not suffered an adverse employment
action and had not demonstrated a causal relationship between his FMLA leave and the
non-renewal of his residency; and (3) even assuming Khan had established a prima facie
case, MSHMC had articulated legitimate non-retaliatory reasons for its decision not to
renew Khan’s residency.
Khan then requested three extensions of time to file an opposition to summary
judgment, each of which was granted by the District Court. In granting the third
extension, the District Court stated that it would be the final extension. On the last day of
2
his third extension, Khan requested a fourth extension. The District Court denied his
request and, ruling on the motion for summary judgment, determined that Khan had
failed to establish a prima facie case of retaliation under the FMLA. Accordingly, the
District Court granted MSHMC’s motion for summary judgment. Khan appeals.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review for abuse of
discretion the District Court’s decision to deny Khan’s motion for an extension. Drippe
v. Tobelinski, 604 F.3d 778, 779 n.1, 783 (3d Cir. 2010). We exercise plenary review
over the District Court’s decision granting summary judgment. See Alcoa, Inc. v. United
States, 509 F.3d 173, 175 (3d Cir. 2007). Summary judgment is appropriate when the
movant demonstrates “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). For the
following reasons, we will affirm.
III.
Khan challenges, first and foremost, the District Court’s decision to deny his
fourth request for an extension of time to file a brief in opposition to MSHMC’s motion
for summary judgment. “[M]atters of docket control . . . are committed to the sound
discretion of the district court.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d
Cir. 1982); see also Fed. R. Civ. P. 6(b)(1). In granting Khan’s third request for an
extension, the District Court noted that it had already granted two prior requests and that
Khan had already had over three months to file his brief in opposition to summary
3
judgment. The District Court then warned that the third extension would be the “final
extension,” and that, should Khan fail to file his brief in opposition to summary judgment
within 20 days of the District Court’s order, the District Court “may, in its discretion,
grant Defendant’s motion and dismiss the case with prejudice.” In light of the number of
extensions that Khan received, the amount of time that Khan had to file his opposition
brief, and the explicitness of the District Court’s warning that the third extension was to
be the final extension, we conclude that the District Court did not abuse its discretion in
denying Khan’s fourth request for an extension of time to file a brief in opposition to
summary judgment.1
Khan also alleges that the District Judge was biased against him and treated him
“unjustly” by denying his fourth motion for an extension. We note that Khan did not
seek recusal in the District Court. In any event, a judge must recuse “if a reasonable man,
were he to know all the circumstances, would harbor doubts about the judge’s
impartiality . . . .” Id. at 167. However, “a party’s displeasure with legal rulings does not
1
The District Court then properly turned to the merits of MSHMC’s motion for summary
judgment. See e.g., United States v. One Piece of Real Prop., 363 F.3d 1099, 1101 (11th
Cir. 2004) (noting that a district court should not “base the entry of summary judgment
on the mere fact that the motion was unopposed”). However, Khan failed in his briefing
to us to raise any challenge to the correctness of the District Court’s grant of summary
judgment. Thus, that issue is waived. See United States v. Pelullo, 399 F.3d 197, 201
n.2 (3d Cir. 2005) (stating that where “an appellant fails to raise an issue in an appellate
brief, even if it was listed in the Notice of Appeal, it is deemed waived”). Similarly, to
the extent that Khan wished to appeal the District Court’s dismissal of his claims for
attorney’s fees, breach of contract, tortious interference with prospective contractual
relations, and negligent and intentional infliction of emotional distress, he failed to raise
those issues in his appellate brief. See id.
4
form an adequate basis for recusal.” Securacomm Consulting, Inc. v. Securacom Inc.,
224 F.3d 273, 278 (3d Cir. 2000). Here, the sole basis for Khan’s allegation of bias is the
ruling against him. Moreover, Khan has not shown any appearance of partiality. See
Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir. 2004). The
District Judge did not err by failing to recuse himself sua sponte.
In light of the foregoing, we will affirm the District Court’s judgment in favor of
MSHMC.
5
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STATE OF MICHIGAN
COURT OF APPEALS
BRENDA LOPEZ, UNPUBLISHED
February 2, 2016
Plaintiff-Appellant,
v No. 323811
Macomb Circuit Court
DONNA ADDISON and SHAMROCK CAB LC No. 2013-002043-NI
COMPANY,
Defendants-Appellees.
Before: STEPHENS, P.J., and HOEKSTRA and SERVITTO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in favor of defendants,
Donna Addison and Shamrock Cab Company, in this no-fault action. We affirm.
This case arises out of an automobile accident that occurred on November 8, 2012.
Plaintiff was riding as a passenger in defendant Shamrock Cab Company’s vehicle, which was
driven by defendant Addison. Defendant Addison, while changing lanes, struck the rear end of
another vehicle. Plaintiff experienced pain in her neck and head, and was transported to the
hospital.
Prior to the 2012 accident, plaintiff was also involved in another vehicle accident in 2011.
As a result of the 2011 accident, plaintiff experienced continual neck and back pain, in addition
to discomfort in her extremities. Plaintiff was unable to perform her job as a certified nursing
assistant after the 2011 accident, and sought treatment with various doctors and therapists.
Plaintiff was unable to care for herself, and thus was assisted by her daughter.
As a result of the 2012 accident, plaintiff brought a negligence action against defendants.
However, the trial court granted defendants’ motion for summary disposition, holding that there
was no genuine issue of material fact whether plaintiff suffered serious impairment of body
function, as plaintiff failed to show how her pre-accident life was different from her post-
accident life.
Plaintiff argues on appeal that she clearly suffered serious impairment of a body function,
and specifically, that her injuries had affected her general ability to lead her normal life. We
disagree.
-1-
This Court “reviews de novo decisions on motions for summary disposition.” Sherry v
East Suburban Football League, 292 Mich App 23, 26; 807 NW2d 859 (2011). Summary
disposition under MCR 2.116(C)(10) is appropriate “when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Id. In reviewing the lower
court’s decision, this Court must “consider the affidavits, pleadings, depositions, admissions, and
other documentary evidence submitted by the parties in the light most favorable to the party
opposing the motion.” Id. at 27 (citation and quotation marks omitted).
Generally, under Michigan’s no-fault act, tort liability is precluded between motor
vehicle operators involved in a motor vehicle accident. MCL 500.3135(3). However, a person
may pursue a tort claim “if the injured person has suffered death, serious impairment of body
function, or permanent serious disfigurement.” MCL 500.3135(1). To determine whether a
person has suffered a “serious impairment of body function,” the Michigan Supreme Court has
promulgated a three part test requiring: “(1) an objectively manifested impairment (2) of an
important body function that (3) affects the person’s general ability to lead his or her normal
life.” McCormick v Carrier, 487 Mich 180, 195; 795 NW2d 517 (2010).
At particular issue in this case is prong three—whether plaintiff’s injuries have affected
her general ability to lead her normal life. The Michigan Supreme Court has instructed that “the
plain text of the statute . . . demonstrate[s] that the common understanding of to ‘affect the
person’s ability to lead his or her normal life’ is to have an influence on some of the person’s
capacity to live in his or her normal manner of living . . . . Determining the effect or influence
that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a
comparison of the plaintiff’s life before and after the incident.” Id. at 202. Furthermore, “there
is no quantitative minimum as to the percentage of a person’s normal manner of living that must
be affected.” Id. at 203. Additionally, “the statute merely requires that a person’s general ability
to lead his or her normal life has been affected, not destroyed.” Id. at 202 (emphasis in original).
“[C]ourts should consider not only whether the impairment has led the person to completely
cease a pre-incident activity or lifestyle element, but also whether, although a person is able to
lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless
affected.” Id. at 202.
Plaintiff failed to present evidence creating a genuine issue of material fact that her
alleged injuries affected her general ability to lead her normal life. Prior to the November 8,
2012 accident, plaintiff lived a largely inactive lifestyle as a result of her September 18, 2011
accident. Plaintiff did not work at Precise Healthcare as a certified nursing assistant since her
September 18, 2011 accident. After the September 18, 2011 accident, plaintiff required the help
of her daughter to do basic chores and errands. When asked “what did [your daughter] do for
you,” plaintiff responded, “[c]ook, clean, errands, wash clothes, take my kids to practice, her
brothers and sisters, take them to practice, took them to school, did everything.” After the
November 8, 2012 accident, when asked how her daughter helped out, plaintiff similarly
responded, “[w]ash, clean, take me to get my hair done, my nails done, she helps me get dressed,
she help[s] me in and out of the shower, [and] she help[s] me to the bathroom.” Before the
September 18, 2011 accident, plaintiff was actively involved in her community. She provided
catering services, cooked for block parties, cooked for her children’s sports teams, and sold
handmade baskets from her home as well. However, since the September 18, 2011 accident,
plaintiff was unable to do any of these community activities. Plaintiff’s post-September 18, 2011
-2-
life is essentially the same as her post-November 8, 2012 life. Plaintiff’s activities before
November 8, 2012, and after November 8, 2012, are the same; she has been unable to work and
has not engaged in the community like she did previously. Moreover, plaintiff has presented no
further evidence of any other activities that may have been affected by her alleged injuries.
Plaintiff does argue that she was prepared to go back to work shortly before the
November 8, 2012 accident, the implication being that plaintiff’s “normal life” included the
ability to presently and actively work, and that defendants’ negligence on November 8, 2012, cut
short this aspect of her life. However, the evidence supporting this argument is sparse. During
plaintiff’s deposition, she was asked whether after the September 18, 2011 accident she “thought
maybe [she] could do her job.” Plaintiff responded, “I was calling my agency to see if I could
come back to work, and she said yes. Once I was done with all of that, then she would be glad to
have me back when I spoke to her.” We conclude that this statement by itself does not raise a
genuine issue of material fact as to whether plaintiff was able to work immediately prior to the
November 8, 2012 accident. At best, plaintiff’s statements indicate that she called her employer
to determine whether she could come back to work at some unspecified future time.
Accordingly, the trial court did not err in granting defendants’ motion for summary disposition
based on its ruling that there was no genuine issue of material fact that plaintiff had suffered a
serious impairment of body function.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Joel P. Hoekstra
/s/ Deborah A. Servitto
-3-
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60099
Conference Calendar
TONY L. BLAND,
Plaintiff-Appellant,
versus
(UNKNOWN) KNUTSON, DR.; (UNKNOWN)
BEARRY, DR.; HENRY WADSWORTH, DR.,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:01-CV-167-P-A
--------------------
August 20, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Tony L. Bland, Mississippi prisoner # 24431, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s dismissal as frivolous of
his civil rights complaint. By moving for IFP, Bland is
challenging the district court’s certification that IFP status
should not be granted on appeal because his appeal is not taken
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-60099
-2-
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
The district court construed Bland’s complaint as raising a
challenge to the medical care he received in the Mississippi
Department of Corrections and ordered that the case be dismissed
on res judicata and collateral estoppel grounds, as Bland had
raised the same claims in the state courts. Bland contends that
he was actually attempting to appeal the Mississippi Supreme
Court’s failure to grant him IFP status on his appeal in the
state courts and the subsequent dismissal of his appeal. Under
the Rooker-Feldman doctrine, federal district courts lack
jurisdiction to review state judgments. United States v.
Shepherd, 23 F.3d 923, 924 (5th Cir. 1994); Liedtke v. State Bar
of Texas, 18 F.3d 315, 317 (5th Cir. 1994). Bland’s appeal is
thus without arguable merit and is frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Accordingly, we uphold the district court’s order certifying
that the appeal is not taken in good faith and denying Bland IFP
status on appeal, we deny the motion for leave to proceed IFP,
and we DISMISS Bland’s appeal as frivolous. See Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2.
APPEAL DISMISSED.
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IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 247 EAL 2019
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
TYREE MILES, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 19th day of August, 2019, the Petition for Allowance of Appeal is
DENIED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7630
EUGENE RAFFALDT,
Petitioner - Appellant,
versus
ROBERT WARD, Warden; ATTORNEY GENERAL OF SOUTH
CAROLINA,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CA-97-1091-2-23)
Submitted: August 13, 1998 Decided: August 31, 1998
Before WIDENER and WILKINS, Circuit Judges, and HALL, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Eugene Raffaldt, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court's order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998). We have reviewed the record and the district court's
opinion accepting the recommendation of the magistrate judge and
find no reversible error. Accordingly, we deny a certificate of ap-
pealability and dismiss the appeal on the reasoning of the district
court. Raffaldt v. Ward, No. CA-97-1091-2-23 (D.S.C. Oct. 24,
1997). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2017 Term
_______________ FILED
October 19, 2017
No. 16-0962 released at 3:00 p.m.
_______________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
GASTAR EXPLORATION INC.
and RONA LEE MCCARDLE,
Defendants Below, Petitioners
v.
GARY RINE, as the Administrator of the
Estate of Okey Franklin Yoho, et al.
Plaintiffs Below, Respondents
________________________________________________________
Appeal from the Circuit Court of Marshall County
The Honorable David W. Hummel, Jr., Judge
Civil Action No. 13-C-164
REVERSED AND REMANDED
________________________________________________________
Submitted: October 4, 2017
Filed: October 19, 2017
William M. Herlihy, Esq. Jeffrey V. Kessler, Esq.
Spilman Thomas & Battle, PLLC Berry, Kessler, Crutchfield, Taylor &
Charleston, West Virginia Gordon
Matthew P. Heiskell, Esq. Moundsville, West Virginia
Spilman Thomas & Battle, PLLC Counsel for Respondents Gary Rine,
Morgantown, West Virginia individually and as the Administrator
Counsel for Petitioner of the Estate of Okey Franklin Yoho;
Gastar Exploration Inc. Dinah A. Gray; and Carl Smith
Jeffrey A. Kimble, Esq.
Robinson & McElwee, PLLC Teresa C. Toriseva, Esq.
Clarksburg, West Virginia Joshua D. Miller, Esq.
Counsel for Petitioner Toriseva Law
Rona Lee McCardle Wheeling, West Virginia
Counsel for Respondents Betty Pyzell;
Norma Ash; Debbie Rine; LeRoy Yoho;
Kim Yoho; Ron Yoho; Jodi Yoho; Vicki
Williams; Connie Streight; Nancy
Brown; Mark Campbell; and Harold
Yoho
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of a declaratory judgment is reviewed de
novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).
2. “When it is found from the pleadings, depositions and admissions on
file, and the affidavits of any party, in a summary judgment proceeding under Rule 56 of
the West Virginia Rules of Civil Procedure, that a party who has moved for summary
judgment in his favor is not entitled to such judgment and that there is no genuine issue
as to any material fact, a summary judgment may be rendered against [the moving] party
in such proceeding.” Syllabus Point 6, Employers’ Liab. Assur. Corp. v. Hartford Acc. &
Indem. Co., 151 W.Va. 1062, 158 S.E.2d 212 (1967).
3. “For ascertainment of the intent of the parties to a deed in which the
description of the subject matter is inconsistent, contradictory and ambiguous, extrinsic
evidence is admissible.” Syllabus Point 1, State v. Herold, 76 W.Va. 537, 85 S.E. 733
(1915).
4. “To enable the court to construe a deed or other writing, ambiguous
on its face, it is always permissible to prove the situation of the parties, the circumstances
surrounding them when the contract was entered into and their subsequent conduct giving
it a practical construction, but not their verbal declarations. But, if a latent ambiguity is
disclosed by such evidence, such for instance as that the terms of the writing are equally
applicable to two or more objects, when only a certain one of them was meant, then prior
and contemporaneous transactions and collocutions of the parties are admissible, for the
i
purpose of identifying the particular object intended.” Syllabus Point 2, Snider v.
Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).
5. “The term ‘ambiguity’ is defined as language reasonably susceptible
of two different meanings or language of such doubtful meaning that reasonable minds
might be uncertain or disagree as to its meaning.” Syllabus Point 4, Estate of Tawney v.
Columbia Nat. Res., L.L.C., 219 W.Va. 266, 633 S.E.2d 22 (2006).
6. “Where there is ambiguity in a deed, or where it admits of two
constructions, that one will be adopted which is most favorable to the grantee.” Syllabus
Point 6, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E. 472 (1917).
ii
Justice Ketchum:
This case concerns a 1977 deed and its effect on the ownership of a one-
half interest in oil and gas beneath a tract of land in Marshall County, West Virginia.
When a deed is ambiguous, a court must weigh extraneous evidence like the conduct of
the grantor and grantee to determine the parties’ intent. A court must also adopt any
reasonable interpretation of the deed most favorable to the grantee.
As we discuss below, we find the 1977 deed is ambiguous and of such
doubtful meaning that reasonable minds disagree as to the deed’s intent. The Circuit
Court of Marshall County incorrectly found the deed was clear, and incorrectly found that
the grantors did not convey the one-half interest in oil and gas to the grantee. Because
the deed was ambiguous, the circuit court should have considered the parties’ conduct
after delivery of the deed – namely that the grantors to the deed stopped paying taxes on
the oil and gas interest while the grantee started paying taxes. We reverse the circuit
court’s decision, and remand the case for entry of a judgment in favor of the grantee.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Before 1957, Clifford and Beulah Franklin owned the entire tract of land in
dispute in this case. Then, by a deed dated January 30, 1957, the Franklins conveyed the
tract to Okey and Frances Yoho in fee simple, with one important reservation: the
Franklins “excepted and reserved” for themselves an undivided one-half interest in the oil
1
and gas underlying the tract. They conveyed the other one-half interest to the Yohos.
The 1957 deed provided:
There is further excepted and reserved from this conveyance
an undivided one-half (1/2) interest in the oil and gas,
including gas storage rights, within and underlying the land
hereby conveyed, together with such mining rights and
privileges as may be necessary and convenient to the
operation thereof for production, storage or observation of
said oil and gas and the strata containing the same.
Hence, the parties agree that, under the 1957 deed, the Yohos owned the surface of the
tract and owned a one-half undivided interest in the oil and gas.
Over the next 20 years, tax documents in the record indicate that the Yohos
paid real estate taxes on that one-half oil and gas interest. For instance, tax records for
1976 show that the Yohos were assessed taxes on the tract and the one-half oil and gas
interest, described in the tax records as “102.080 [acres] Long Run & ½ O&G.” The tax
records also show the Franklins were assessed taxes on the other one-half interest,
described as, “½ Int[erest] 102.08 [acres] O&G Long Run.”
In a deed dated April 5, 1977, the Yohos conveyed the tract to defendant
1
Rona Lee McCardle. The 1977 deed conveyed to Ms. McCardle “the same property
conveyed to Okey F. Yoho and Frances A. Yoho, his wife, by Clifford E. Franklin and
Beulah Franklin, his wife, by deed dated the 30th day of January, 1957[.]”
1
A 2016 affidavit in the record suggests that Ms. McCardle is now Rona
Rice. However, the parties, pleadings, tax records, and 1977 deed all use Ms. Rice’s
name as it was in 1977. Hence, for purposes of clarity and simplicity, throughout this
opinion we refer to the defendant as Ms. McCardle.
2
However, the parties dispute the meaning of language in the 1977 deed
regarding the one-half interest in the oil and gas. The scrivener of the 1977 deed
included an “excepted and reserved” paragraph identical, word-for-word, to that
contained in the Franklins’ 1957 deed, which provided:
There is further excepted and reserved from this conveyance
an undivided one-half (1/2) interest in the oil and gas,
including gas storage rights, within and underlying the land
hereby conveyed, together with such mining rights and
privileges as may be necessary and convenient to the
operation thereof for production storage or observation of
said oil and gas and the strata containing the same.
In an affidavit, Ms. McCardle stated that it was her “understanding and
intention” that she purchased one-half of the oil and gas beneath the tract. Over the next
30-plus years after 1977, tax documents indicate that Ms. McCardle paid real estate taxes
on the one-half oil and gas interest. For instance, tax records from 1978 show Ms.
McCardle was assessed taxes on land described as “102.080 [acres] Long Run & ½
O&G.” In her affidavit, Ms. McCardle stated that since 1977 she has paid all of the real
estate taxes due on the surface estate and on the one-half oil and gas interest.
The same tax documents show that, after conveying the property to Ms.
McCardle in 1977, the Yohos did not pay real estate taxes on the oil and gas interest. An
entry in the 1977 tax records indicates that the Yohos were initially assessed taxes on the
tract. However, the tax entry for the Yohos has a line scrawled through with the
handwritten notation, “to Rona Lee McCardle DB 465 p. 256 4-5-77 Pd$39500.” The
1977 deed from the Yohos to Ms. McCardle is on record in the Marshall County Clerk’s
3
Office in Deed Book 465 at page 256. There are no entries in the tax records suggesting
that the Yohos paid taxes on the tract or the one-half oil and gas interest after 1977.
In 2008, Ms. McCardle entered into an oil and gas lease with defendant
Gastar Exploration, Inc. The lease covers the Marshall County tract described in the
1977 deed between Ms. McCardle and the Yohos. Gastar subsequently drilled a well and
began extracting oil and gas from beneath the tract.
Litigation over the 1977 Deed
Mrs. Yoho died in 1979; Mr. Yoho died intestate in 1997. Then, in 2013,
sixteen years after Mr. Yoho’s death, plaintiff Gary Rine was appointed administrator of
the estate of Mr. Yoho, to act on behalf of Mr. Yoho’s heirs (a group we hereafter call
“the Yoho heirs”).
2
On October 15, 2013, plaintiff Rine and the Yoho heirs filed a complaint
against defendants Gastar and Ms. McCardle. The Yoho heirs asserted that, in the 1977
deed, the Yohos retained ownership of the one-half undivided interest in the oil and gas.
In other words, the heirs contend that the Yohos did not convey their one-half interest to
Ms. McCardle, and that the interest eventually passed on to the Yoho heirs. The Yoho
heirs alleged that the defendants have trespassed on their oil and gas interest and, by
2
Mr. Rine was the husband of one of Mr. Yoho’s daughters, Linda Rine,
who died after the complaint was filed. Mr. Rine asserts he is acting as a direct heir of
Mr. Yoho as well as the administrator of his estate. Amendments to the original
complaint added other heirs of Mr. Yoho to this suit. Additionally, the circuit court
appointed an attorney as guardian ad litem for any unknown heirs to Mr. Yoho’s estate.
4
taking oil and gas from the ground, engaged in conversion. As relief, the Yoho heirs
sought compensatory damages, an injunction, and an order creating a lease between the
heirs and Gastar.
The Yoho heirs later amended the complaint to request a declaratory
judgment interpreting the 1977 deed. In December 2015, the parties informed the circuit
court that they had agreed to dispose of the declaratory judgment action while staying the
remainder of the case. Based upon the parties’ agreement, the circuit court stayed
discovery on all claims except the declaratory judgment claim.
In April 2016, the Yoho heirs filed a motion for summary judgment on the
declaratory judgment claim and stated that no genuine question of material fact existed
3
regarding ownership of the disputed oil and gas rights. The Yoho heirs argued that the
1977 deed conveyed only the surface of the tract to Ms. McCardle and unambiguously
reserved to the Yohos ownership in the one-half interest in the oil and gas. The
defendants opposed the motion and asked the circuit court to enter judgment in the
defendants’ favor. The defendants argued that the 1977 deed was ambiguous, and argued
that the parties’ actions in the decades after delivery of the deed left no question that the
Yohos believed Ms. McCardle was the sole owner of the one-half interest after 1977.
In an order dated September 13, 2016, the circuit court decided that the
1977 deed was clear and unambiguous. The circuit court declared that the Yohos kept for
3
The plaintiffs’ motion actually provided that “the Defendants are entitled
to judgment as a matter of law.” We presume this was a drafting error by plaintiffs’
counsel.
5
themselves the one-half interest in the oil and gas and that the deed “did not convey any
mineral interest” to Ms. McCardle. Defendants Gastar and Ms. McCardle now appeal the
circuit court’s declaratory judgment order.
II.
STANDARD OF REVIEW
The salutary purpose of a declaratory judgment action is to resolve legal
questions. Hence, “[a] circuit court’s entry of a declaratory judgment is reviewed de
4
novo.” Further, the parties agreed below that no genuine questions of material fact
existed and that the circuit court’s summary judgment ruling centered upon the legal
interpretation of the 1977 deed. We likewise review a circuit court’s summary judgment
5
order de novo.
6
The term “de novo” means “Anew; afresh; a second time.” “We have
often used the term ‘de novo’ in connection with the term ‘plenary.’. . . Perhaps more
instructive for our present purposes is the definition of the term ‘plenary,’
4
Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).
5
Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)
(“A circuit court’s entry of summary judgment is reviewed de novo.”).
6
Frymier-Halloran v. Paige, 193 W.Va. 687, 693, 458 S.E.2d 780, 786
(1995) (quoting Black’s Law Dictionary 435 (6th ed. 1990)).
6
7
which means ’[f]ull, entire, complete, absolute, perfect, unqualified.’” “We therefore
give a new, complete and unqualified review to the parties’ arguments and the record
8
before the circuit court.”
Because the purpose of a summary judgment proceeding is to expedite the
disposition of a case and avoid unnecessary litigation and trials, we proceed with the
well-established rule in mind that a summary judgment may be rendered against the party
moving for judgment and in favor of the opposing party even though the opposing party
has made no motion for summary judgment. As this Court once stated,
When it is found from the pleadings, depositions and
admissions on file, and the affidavits of any party, in a
summary judgment proceeding under Rule 56 of the West
Virginia Rules of Civil Procedure, that a party who has
moved for summary judgment in his favor is not entitled to
such judgment and that there is no genuine issue as to any
material fact, a summary judgment may be rendered against
9
[the moving] party in such proceeding.
7
State ex rel. Clark v. Blue Cross Blue Shield of W.Va., Inc., 203 W.Va.
690, 701, 510 S.E.2d 764, 775 (1998) (quoting Black’s Law Dictionary 1154 (6th ed.
1990)).
8
Blackrock Capital Inv. Corp. v. Fish, 799 S.E.2d 520, 526 (W.Va. 2017).
9
Syllabus Point 6, Employers’ Liab. Assur. Corp. v. Hartford Acc. &
Indem. Co., 151 W.Va. 1062, 158 S.E.2d 212 (1967). Accord, Syl. pt. 2, Arnold v.
Palmer, 224 W.Va. 495, 686 S.E.2d 725 (2009); Nat’l Union Fire Ins. Co. of Pittsburgh
v. Miller, 228 W. Va. 739, 742, 724 S.E.2d 343, 346 (2012). See also, Southern Erectors,
Inc. v. Olga Coal Co., 159 W.Va. 385, 393-94, 223 S.E.2d 46, 51 (1976) (Under Rule
56(c) of the West Virginia Rules of Civil Procedure, “the authorities agree that a court
may enter judgment for a party opposing a summary judgment motion even though no
cross-motion has been made.”); Fed.R.Civ.Pro. Rule 56(f) [2010] (“After giving notice
and a reasonable time to respond, the court may: (1) grant summary judgment for a
nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider
Continued . . .
7
III.
ANALYSIS
The parties agree that, in 1957, the Yohos purchased a one-half undivided
interest in oil and gas. The parties’ arguments center upon the interpretation of the 1977
deed, and whether the oil and gas interest was conveyed by the Yohos to Ms. McCardle.
“Deeds are subject to the principles of interpretation and construction that
10
govern contracts generally.” “[T]he polar star that should guide us in the construction
of deeds as of all other contracts is, what was the intention of the party or parties making
the instrument, and when this is determined, to give effect thereto, unless to do so would
11
violate some rule of property.”
When a deed expresses the intent of the parties in clear and unambiguous
language, a court will apply that language without resort to rules of interpretation or
extrinsic evidence. “In construing a deed, will, or other written instrument, it is the duty
of the court to construe it as a whole, taking and considering all the parts together, and
giving effect to the intention of the parties wherever that is reasonably clear and free from
summary judgment on its own after identifying for the parties material facts that may not
be genuinely in dispute.”). See generally, Charles Alan Wright, et al., 10A Federal
Practice & Procedure § 2720.1 (4th Ed. 2017).
10
Syllabus Point 3, Faith United Methodist Church & Cemetery of Terra
Alta v. Morgan, 231 W.Va. 423, 745 S.E.2d 461 (2013).
11
Syllabus, Totten v. Pocahontas Coal & Coke Co., 67 W.Va. 639, 642, 68
S.E. 373, 374 (1910).
8
12
doubt, unless to do so will violate some principle of law inconsistent therewith.” “A
valid written instrument which expresses the intent of the parties in plain and
unambiguous language is not subject to judicial construction or interpretation but will be
13
applied and enforced according to such intent.”
However, when a deed is inconsistent, confusing or ambiguous on its face,
a court must look to extrinsic evidence of the parties’ intent to construe the deed. It has
been a longstanding rule that, “For ascertainment of the intent of the parties to a deed in
which the description of the subject matter is inconsistent, contradictory and ambiguous,
14
extrinsic evidence is admissible.” A trial court may look to a variety of evidence,
including the parties’ conduct before and after delivery of the deed, to discern the parties’
intent:
To enable the court to construe a deed or other writing,
ambiguous on its face, it is always permissible to prove the
situation of the parties, the circumstances surrounding them
when the contract was entered into and their subsequent
conduct giving it a practical construction, but not their verbal
12
Syllabus Point 1, Maddy v. Maddy, 87 W.Va. 581, 105 S.E. 803 (1921).
13
Syllabus Point 1, Cotiga Development Co. v. United Fuel Gas Co., 147
W.Va. 484, 128 S.E.2d 626 (1962). See also, Syllabus Point 3 of Cotiga Development
(“It is not the right or province of a court to alter, pervert or destroy the clear meaning
and intent of the parties as expressed in unambiguous language in their written contract or
to make a new or different contract for them.”); Pocahontas Land Corp. v. Evans, 175
W.Va. 304, 308, 332 S.E.2d 604, 609 (1985) (“Where the intent of the parties is clearly
expressed in definite and unambiguous language on the face of the deed itself, the court is
required to give effect to such language and, ordinarily, will not resort to parole or
extrinsic evidence.”).
14
Syllabus Point 1, State v. Herold, 76 W.Va. 537, 85 S.E. 733 (1915).
9
declarations. But, if a latent ambiguity is disclosed by such
evidence, such for instance as that the terms of the writing are
equally applicable to two or more objects, when only a certain
one of them was meant, then prior and contemporaneous
transactions and collocutions of the parties are admissible, for
15
the purpose of identifying the particular object intended.
The parties dispute whether the 1977 deed is ambiguous. The mere fact
that parties do not agree to the construction of a deed does not alone render it ambiguous.
“The term ‘ambiguity’ is defined as language reasonably susceptible of two different
meanings or language of such doubtful meaning that reasonable minds might be uncertain
16
or disagree as to its meaning.” Whether a deed is ambiguous is a question of law to be
17
determined by the court. “Where there is ambiguity in a deed, or where it admits of two
18
constructions, that one will be adopted which is most favorable to the grantee.”
15
Syllabus Point 2, Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).
See also Syllabus Point 10, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E. 472
(1917) (“Proper parol evidence is admissible to explain a latent ambiguity in a written
contract, and a latent ambiguity is one which arises not upon the words of the instrument,
as looked at in themselves, but upon those words when applied to the object sought to be
accomplished by the contract or the subject which they describe.”); Syllabus Points 2 and
3, Bank v. Catzen, 63 W.Va. 535, 60 S.E. 499 (1908) (“When, in attempting to apply
a deed to its subject matter or the parties thereto, a latent ambiguity of any kind is
disclosed, parol evidence is admissible to a limited extent, to show what was intended,
not only by the instrument considered as a whole, but also by particular words or clauses
thereof.” And, “Parol evidence, admissible for such purpose, is generally limited to the
subject-matter, the relation of the parties thereto, their prior and subsequent conduct, their
situation, and all the facts and circumstances existing at the time of the execution of the
instrument.”).
16
Syllabus Point 4, Estate of Tawney v. Columbia Nat. Res., L.L.C., 219
W.Va. 266, 633 S.E.2d 22 (2006).
17
See Syllabus Point 1, Berkeley Cty. Pub. Serv. Dist. v. Vitro Corp. of Am.,
152 W.Va. 252, 162 S.E.2d 189 (1968) (“The mere fact that parties do not agree to the
Continued . . .
10
The Yoho heirs assert that the 1977 deed is clear and unambiguous, and
that the deed conveyed only the surface to defendant McCardle. The Yoho heirs argue
the 1977 deed “excepted and reserved from this conveyance” the one-half interest in oil
and gas. They argue that the phrase “this conveyance” can only mean the 1977
conveyance, and can only be interpreted to mean that the Yohos (and now their heirs)
retained ownership of the one-half oil and gas interest.
Defendants Gastar and Ms. McCardle assert that the 1977 deed is
ambiguous and is reasonably susceptible to several interpretations. In the opening
paragraphs of the deed, the Yohos conveyed to Ms. McCardle “the same property” they
bought in 1957. The opening paragraphs are in harmony with West Virginia law, which
presumes grantors in a deed intend to convey ownership of the whole interest that the
19
grantors had power to dispose of. Yet, in a later paragraph, the Yohos “further excepted
construction of a contract does not render it ambiguous. The question as to whether a
contract is ambiguous is a question of law to be determined by the court.”).
18
Syllabus Point 6, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187, 94
S.E. 472 (1917). See also Syllabus Point 3, W.Va. Dep’t of Highways v. Farmer, 159
W.Va. 823, 226 S.E.2d 717 (1976) (“Where an ambiguity exists in a deed, the language
of such deed will be construed most strongly against the grantor.”); Sally-Mike Properties
v. Yokum, 175 W.Va. 296, 300, 332 S.E.2d 597, 601 (1985) (“[I]n cases
involving reservations and exceptions, any remaining doubt as to intent should be
resolved in the grantee’s favor.”).
19
See W.Va. Code § 36-1-11 [1923] (“When any real property is conveyed
or devised to any person, and no words of limitation are used in the conveyance or
devise, such conveyance or devise shall be construed to pass the fee simple, or the whole
estate or interest, legal or equitable, which the testator or grantor had power to dispose of,
in such real property, unless a contrary intention shall appear in the conveyance or
will.”).
11
and reserved” an undivided one-half interest in the oil and gas. Because the later
paragraph is identical to the oil-and-gas paragraph in the Franklins’ 1957 deed, the
defendants argue that the intent of the Yohos is ambiguous: they might have been
referring to the one-half interest already reserved by the Franklins in 1957, or they might
have meant to keep for themselves the one-half interest.
As further support for their assertion that the deed is ambiguous, the
defendants point out that the 1977 deed makes reference to two different “out-parcel”
transactions. In both out-parcel references, the Yohos used the words “excepted and
reserved” in a confusing manner. First, in 1905, a predecessor deeded 22.4 acres from
the original tract to another individual. The 1977 deed says that the Yohos were
“[e]xcepting and reserving . . . and not intending hereby to convey” that same 22.4 acres.
Second, the 1977 deed “excepted and reserved a parcel of .800 acres” that the Yohos
conveyed to other individuals in 1970. The defendants argue that the Yohos could not
“except and reserve” to themselves these two out-parcels already owned by others.
Hence, when the Yohos said they “further excepted and reserved” from the 1977 deed a
one-half interest in the oil and gas, the defendants contend the Yohos might have been
20
referring to the one-half interest already owned by the Franklins since 1957.
20
The defendants also assert that the words “excepted” and “reserved” were
used interchangeably by the Yohos in the 1977 deed, thereby creating further ambiguity.
At common law, an “exception” was defined as the “retention of an existing right or
interest, by and for the grantor, in real property being granted to another.” Black’s Law
Dictionary 683 (10th Ed. 2014). See also, Erwin v. Bethlehem Steel Corp., 134 W.Va.
900, 915, 62 S.E.2d 337, 346 (1950) (An exception exists when the grantor “withdraws
from the operation of the conveyance some part of the thing granted, which but for the
Continued . . .
12
The defendants also offered the opinion of an expert on deeds. This expert
noted that the 1977 deed was a general warranty deed. Under West Virginia law, a
grantor who delivers a general warranty deed provides an actual warranty of the title and
21
has an obligation to defend the grantee against any claims regarding the property.
Because of the obligations attending a general warranty deed, the expert said it is
extremely important for a grantor to delineate with specificity what land interest is, and
what is not, being transferred by the deed. The defendant’s expert was of the opinion that
the exception and reservation of the one-half interest in oil and gas in the 1977 deed
referred solely to the interest owned by the Franklins. The expert concluded that the
Yohos included the exception and reservation as a way to limit their general warranty. In
other words, the language used by the Yohos established they were not giving a warranty
exception would have passed to the grantee under the general description[.]”). A
“reservation” is “[t]he creation of a new right or interest . . . by and for the grantor[.]”
Black’s Law Dictionary 1500 (10th Ed. 2014). See also, Erwin, 134 W.Va. at 915, 62
S.E.2d at 346 (A reservation is made when the grantor creates “some new thing to
himself issuing out of the thing granted, and not [before] in esse[.]”) “Though technically
there is a distinction between an exception and a reservation, they are often regarded
as synonymous.” Erwin, 134 W.Va. at 914, 62 S.E.2d at 345. We therefore decline to
consider this assertion by the defendants.
As to the portion of the defendants’ appeal in which they support their
argument regarding the ambiguity created by the interchangeable use of the words
“exception” and “reservation,” the defendants cite as authority a 2012 order from the
circuit court in a different case. The defendants contend the circuit court violated
principles of stare decisis when it failed to apply holding in the 2012 order in its 2016
order in this case. We see no merit in the defendants’ position.
21
See W.Va. Code § 36-4-2 [1923].
13
of title to the one-half interest owned by the Franklins, but that they otherwise were
conveying their own one-half interest to Ms. McCardle.
After reviewing the parties’ arguments, we find that the 1977 deed is
ambiguous. The deed was poorly drafted, the language of the document is uncertain, and
reasonable minds may disagree as to just what was conveyed. The deed does not express
the precise intentions of the Yohos regarding the one-half interest in the oil and gas
underlying the tract. The Yohos may have intended to retain ownership of the one-half
interest, as the Yoho heirs assert. The Yohos may have intended to convey ownership of
the one-half interest, as the defendants assert. Or, this Court discerns a third
interpretation that neither party advanced: the Yohos may have intended to convey
ownership of only a one-quarter interest. Specifically, since the Yohos received a one-
half interest from the Franklins in 1957, when the Yohos stated that they “excepted and
reserved” a one-half interest from their 1977 conveyance, an accurate accounting might
be that they retained a half of a half, or a one-quarter interest in the oil and gas.
Our ultimate conclusion, then, is that the 1977 deed is ambiguous. We
must therefore look to extrinsic evidence to understand the parties’ intent. Further,
because of the ambiguity introduced into the deed by the Yohos, our law compels us to
adopt the deed interpretation that is most favorable to the grantee, Ms. McCardle.
To divine the intent of the parties to an ambiguous deed, and to give the
deed a practical construction, a court may consider the circumstances surrounding the
parties when the deed was negotiated and delivered, and may consider their subsequent
14
22
conduct. The record contains sixty-two pages of land tax records showing the parties’
conduct before and after delivery of the 1977 deed. These tax records show that, before
the Yohos conveyed the property in 1977, the Yohos paid taxes on the one-half oil and
23
gas interest. After the Yohos conveyed the property to Ms. McCardle in 1977, Ms.
McCardle paid the taxes on the same one-half oil and gas interest while the Yohos
stopped paying the taxes altogether.
The parties agreed before the circuit court that no questions of material fact
existed on the declaratory judgment issue, and both parties asked for a declaratory
judgment as a matter of law in their favor. On its face and within its four corners, a
reasonable person can interpret the 1977 deed provision regarding ownership of the one-
half oil and gas interest in several diametrically opposed ways. We therefore find the
1977 deed provision to be ambiguous as a matter of law. We must construe that
provision in favor of the grantee (Ms. McCardle), against the grantors (the Yohos), and in
light of the parties’ conduct in paying taxes before and after delivery of the deed in April
1977. In sum, on the record presented by the parties, there is no doubt that the Yohos
intended to convey the oil and gas interest to Ms. McCardle in 1977.
22
Syllabus Point 2, Snider v. Robinett, 78 W.Va. 88, 88 S.E. 599 (1916).
23
The record suggests that, at the same time, the Franklins also paid taxes
on the other one-half oil and gas interest.
15
The circuit court therefore erred in granting a declaratory judgment in favor
of the heirs of Mr. Yoho. On this record, the circuit court should have entered judgment
24
in favor of the defendants, Gastar and Ms. McCardle.
IV.
CONCLUSION
The circuit court erred in finding that the 1977 deed was unambiguous and
in granting a declaratory judgment in favor of the plaintiffs, Mr. Rine and the other Yoho
heirs. We therefore reverse the circuit court’s September 13, 2016, order, and remand the
case for entry of judgment in favor of the defendants, Gastar and Ms. McCardle.
Reversed and remanded.
24
The defendants also asserted on appeal that the circuit court should have
ruled in their favor on grounds of laches, estoppel, or adverse possession. Alternatively,
the defendants contend the circuit court should have dismissed the Yoho heirs’ action for
failure to join all individuals who may have had an interest in the oil and gas interest.
Our ruling makes these issues moot, and we decline to consider them.
16
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7 F.3d 227
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Theodore Roosevelt FANT, III, a/k/a Pun, Defendant-Appellant.
No. 92-5630.
United States Court of Appeals,Fourth Circuit.
Submitted: May 17, 1993.Decided: September 21, 1993.
Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem.
Danny T. Ferguson, for Appellant.
Robert H. Edmunds, Jr., United States Attorney, Robert M. Hamilton, Assistant United States Attorney, for Appellee.
M.D.N.C.
AFFIRMED.
Before WILKINSON, WILKINS, and WILLIAMS, Circuit Judges.
PER CURIAM:
OPINION
1
Theodore Roosevelt Fant, III, appeals his conviction and sentence for conspiracy to distribute and to possess with intent to distribute crack cocaine and cocaine hydrochloride, in violation of 21 U.S.C.A. § 846 (West Supp. 1993). Fant pled guilty pursuant to a written plea agreement and the Government filed a substantial assistance motion under United States Sentencing Commission, Guidelines Manual, § 5K1.1 (Nov. 1991), which the district court granted. Fant was sentenced to ninety months in prison with a five-year term of supervised release.
2
Counsel for Fant has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), representing that, in his view, there are no meritorious issues for appeal. Fant has been notified of his right to file a supplemental brief, but has failed to exercise this right.
3
As required by Anders, we have independently reviewed the entire record and all pertinent documents. We have considered all arguable issues presented by this record and conclude that there are no nonfrivolous grounds for appeal. Therefore, we affirm the judgment of the district court.
4
Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. § 3006A), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.
5
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
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110 Wn.2d 728 (1988)
756 P.2d 731
THE STATE OF WASHINGTON, Respondent,
v.
MICHAEL E. BAREFIELD, Petitioner.
No. 54038-1.
The Supreme Court of Washington, En Banc.
June 16, 1988.
Michael Filipovic of Seattle-King County Public Defender Association, for petitioner.
Norm Maleng, Prosecuting Attorney, and Michael T. DiJulio, Deputy, for respondent.
DORE, J.
We hold that the Interstate Agreement on Detainers, RCW 9.100.010, does not apply to sentencing *730 proceedings and that the trial court did not err in admitting the results of a blood alcohol test. We affirm petitioner's conviction for negligent homicide.
FACTS
Michael E. Barefield[1] was convicted of negligent homicide, former RCW 46.61.520. While driving northbound on State Route 169 on July 6, 1979, in a Volkswagen pickup truck, Barefield crossed the center line and rammed a car. The driver of the other car and Barefield's passenger, Kenneth Gilbert, were killed. Barefield was severely injured and was taken to Valley General Hospital. While Barefield remained unconscious, a State Patrol trooper directed the attending physician to conduct a blood alcohol test. The test showed Barefield's blood alcohol level to exceed .10 percent.
The trooper did not advise Barefield of his right to "additional tests administered by any qualified person of his choosing ..." Such a warning is prescribed by former RCW 46.20.308(1); Laws of 1975, 1st Ex. Sess., ch. 287, § 4, p. 1225. Barefield was conscious at times and during such periods was advised of his Miranda rights. Even when conscious, however, Barefield was in shock and in critical condition, with painful injuries including fractures of both legs, lacerations and a skull fracture.
Following his conviction in December 1979, Barefield was scheduled for sentencing the following February. He did not appear, however, and a bench warrant was issued for his arrest. The King County Prosecutor's Office subsequently discovered that Barefield, under the name Meskuotis, had been convicted of robbery in Oregon and had been sentenced to 12 years in the federal penitentiary at Leavenworth, Kansas.
In November 1982, King County officials filed a detainer for Barefield at Leavenworth, and Barefield was provided with a copy. Barefield was not informed of his right to *731 request a speedy disposition of his case in Washington. After being informed by his Seattle trial counsel that he had such a right, Barefield drafted letters to Judge James Noe and the King County Prosecutor's Office, and asked his Leavenworth case manager to forward them to Washington. His request was refused.
Leavenworth officials acted on the assumption that the IAD does not apply to detainers for sentencing proceedings. On October 12, 1983, the Ninth Circuit held in Tinghitella v. California, 718 F.2d 308 (9th Cir.1983) that the IAD's provisions regarding speedy trial do apply to sentencing detainers. After being informed of the Tinghitella decision, Leavenworth officials provided Barefield with a form requesting speedy disposition and forwarded the request to Washington. Barefield signed the forms on December 20, 1983.
Barefield was returned to Washington for sentencing, and was scheduled to be sentenced on June 14, 1984. Sentencing was later continued at Barefield's request.
THE IAD DOES NOT APPLY TO SENTENCING DETAINERS
The Interstate Agreement on Detainers (IAD) RCW 9.100.010 provides that, when a detainer is filed with the state having custody, those in charge of the prisoner must provide the prisoner with a copy of the detainer and inform him of his right to request speedy disposition of the pending charges in the receiving state. Conversely the prisoner is required to inform the officials having custody of him of his desire for speedy disposition. It is then the duty of those officials to provide him with the proper forms and to forward those papers promptly to the receiving state. The IAD provides that the prisoner must be tried within 180 days of his giving notice to those who have him in custody. RCW 9.100.010, Article 3.
The IAD's provisions apply to detainers filed in connection with "any untried indictment, information or complaint". RCW 9.100.010, Article 3. The Ninth Circuit held in Tinghitella v. California, 718 F.2d 308 (9th Cir.1983) *732 that the IAD applies to detainers filed in connection with sentencing. The court gave two reasons for its conclusion. First, the word "trial" includes sentencing for Sixth Amendment speedy trial purposes. Walsh v. United States, 423 F.2d 687, 688 (9th Cir.1970). Second, the IAD provides that its provisions shall be given a broad construction to effectuate its purposes.
[1] We do not find Tinghitella persuasive for several reasons.[2] First, its conclusion that the IAD applies to sentencing detainers is dicta. The case held that Tinghitella had neither an IAD nor a Sixth Amendment speedy trial right to be returned to California for sentencing because he had made no request to be sentenced; he had asked only to be returned to California. Since the IAD was not complied with, the court's conclusion that the IAD applies to sentencing detainers was of no consequence to the outcome of this case.
Second, an IAD case decided by the United States Supreme Court 2 years after Tinghitella calls the Ninth Circuit's reasoning and conclusion into question. In Carchman v. Nash, 473 U.S. 716, 87 L.Ed.2d 516, 105 S.Ct. 3401 (1985), the Court held that the IAD does not apply to probation revocation proceedings. Justice Blackmun employed a plain meaning analysis, arguing that probation revocation is a post-trial proceeding and that the IAD refers only to "untried indictments, informations or complaints ..." Carchman, at 725, 726.
In addition, legislative history indicated that Congress meant the IAD to apply to detainers filed in connection with "criminal charges" rather than post-conviction proceedings. Senator Hruska stated:
*733 "At the heart of this measure is the proposition that a person should be entitled to have criminal charges pending against him determined in expeditious fashion." 116 Cong. Rec. 38840 (1970) (emphasis added).
473 U.S. at 729. The House and Senate reports contained similar language:
"A detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." H.R. Rep. No. 91-1018, p. 2 (1970); S. Rep. No. 91-1356, p. 2 (1970) (emphasis added).
(Some italics ours.) 473 U.S. at 729. In light of this language, Justice Blackmun concluded that the IAD did not apply to post-conviction proceedings. Carchman, at 726-29.
Finally, the Carchman Court pointed out that one of the main purposes of the IAD is to deter the filing of meritless detainers. If a detainer is lodged against a prisoner, that may well affect the quality of his treatment in the receiving state.[3] He may be denied parole or work release, for example. The IAD's speedy trial provision is designed to avoid this situation by permitting the prisoner to exonerate himself, if he can, of the charge in the receiving state. Carchman, at 729-34. This policy consideration is not present in probation revocation proceedings. Since this central purpose of the IAD would not be served, the Court held that the IAD did not apply to such proceedings.
The same reasoning applies here. Neither the history nor the purposes of the IAD indicate that it ought to be applied to sentencing detainers. A New Mexico appeals court has cited the logic and timing of Carchman in concluding that the IAD does not apply to sentencing detainers. State v. Sparks, 104 N.M. 62, 65, 716 P.2d 253 (Ct. App. 1986). We agree.
*734 Sparks also responds to Tinghitella's argument that sentencing falls within the definition of trial for purposes of the Sixth Amendment. The opinion points out that: "the IAD provides that the defendant must be brought to trial within 180 days. The IAD, however, does not require that the case must be totally disposed of within 180 days." Sparks, at 65. In other words, if a convicted defendant is returned for sentencing on a detainer more than 180 days after his request, his trial has commenced within the time period, regardless of the fact that the trial is not complete until sentencing. The IAD cannot have been violated. Here too, the purposes of the IAD are not served by applying it to sentencing detainers.
BAREFIELD HAS NOT BEEN PREJUDICED BY NONCOMPLIANCE WITH THE IAD
Even if the IAD did apply to Barefield's case, dismissal would not be called for because Barefield suffered no prejudice from Leavenworth's noncompliance with the IAD.
There is no dispute that Leavenworth officials did not inform Barefield of his right to request speedy disposition when Washington's detainer was filed, as the IAD ordinarily requires. Nor did they forward Barefield's May 1983 requests for speedy disposition to the Washington court and prosecutor, as the IAD ordinarily requires. Only after being informed of the Tinghitella decision did Leavenworth officials act in accord with the IAD, by providing Barefield with notice of his possible rights under the IAD and by forwarding his request for sentencing to Washington. While the 180-day time limit was met if calculated from the date of this latest request, that time period ordinarily would be calculated from the earlier dates.
However, even if the IAD applied here, dismissal would not be appropriate. While some cases call for dismissal where any omission results in the defendant's being tried more than 180 days after he requested or would have requested speedy disposition, see Burns v. State, 578 *735 S.W.2d 650, 652 (Tenn. Crim. App. 1978), we decline to follow such a rule.
[2] Recent cases from other jurisdictions establish the outlines of a case-by-case approach which we believe is preferable. The Supreme Court of Colorado has adopted a rule that dismissal will be granted only where the State fails to establish that there was a lack of prejudice to the defendant. People v. Higinbotham, 712 P.2d 993 (Colo. 1986); Sweaney v. District Court, 713 P.2d 914 (Colo. 1986). Other jurisdictions have indicated that they will not dismiss a case for violation of the IAD unless it can be shown that the officials acted in bad faith. In People v. Bentley, 121 Mich. App. 36, 328 N.W.2d 389 (1982) the court dismissed the indictment, but was careful to say that it was not adopting a general rule that dismissal was required in all cases where the IAD was not complied with. Instead, the court stressed the facts of the particular case.
The prosecutor in this case made not the slightest effort to assure that defendant was informed of the detainer or of his right to request final disposition. After the filing of the detainer, the prosecutor took no action whatsoever under the IAD and simply allowed defendant to remain in the Hawaiian facility for eight months until his release and apprehension by bondsmen. The implication that the Midland [County, Michigan] authorities were kept well informed of defendant's status in Hawaii is unmistakable. Defendant's trial did not take place until eight months after his return to Michigan.
Bentley, at 45. See also Coit v. State, 440 So.2d 409 (Fla. Dist. Ct. App. 1983).
Under a case-by-case approach, dismissal would not be warranted here. The Leavenworth officials construed the IAD not to apply to sentencing detainers. That is a reasonable construction, which we have adopted here. After they were informed of the Tinghitella decision, Leavenworth officials processed Barefield's request and he was set for sentencing in Washington within 180 days. Since the officials involved acted in good faith, no purpose would be *736 served by reversing the conviction and dismissing the information.
THE ADMISSION OF BLOOD TEST RESULTS WAS NOT ERROR
Former RCW 46.20.308(1) provided in part:
Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood ... The test or tests shall be administered at the direction of a law enforcement officer ... Such officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506.
(Italics ours.) Laws of 1975, 1st Ex. Sess., ch. 287, § 4, p. 1225. The statute goes on to provide that persons under arrest for the crime of negligent homicide may be tested without their consent.
In State v. Turpin, 94 Wn.2d 820, 620 P.2d 990 (1980), the State argued that one under arrest for negligent homicide need not be informed of the right to alternative testing. We rejected that argument.
From the fact that the defendant cannot object to State testing it does not inexorably, or even logically, follow that the defendant must also be kept ignorant of his right to independent testing. The statute itself merely states that the State may administer its test without consent; it in no way implies that the right to independent testing or the right to be aware of independent testing is thereby lost.
Turpin, at 824. Because such a warning was not given in Turpin, we reversed and remanded for a new trial in which the results of the State's blood test would be excluded from evidence. Barefield argues that since the warning was not given in his case, the State's blood test should have been excluded from evidence in his trial. We disagree.
[3] The record shows that Barefield was conscious only intermittently in the period during which further testing *737 would have yielded relevant evidence. When he was conscious, he was in shock and in extreme pain, and responded to questions from medical personnel with incoherent shouting. He testified that he has no memory of the period immediately after the accident, nor of anything else before he woke up in the hospital in September, 2 months after the accident. It is clear that Barefield was, for all intents and purposes, unconscious when the statutory warning would have been given. Had Barefield been advised of his right to independent testing he was in no condition to comprehend or exercise that right.
Under these circumstances, we conclude that giving the warning would have been a useless act. Given that fact, excluding the evidence at trial pursuant to Turpin was not necessary. This omission is not the sort of egregious violation of a suspect's rights which our exclusionary rule is designed to prevent. See State v. Miles, 29 Wn.2d 921, 933-34, 190 P.2d 740 (1948). We have previously indicated our support for a "useless act" exception to the exclusionary rule in the context of Washington's "knock and wait" statute, RCW 10.31.040. State v. Coyle, 95 Wn.2d 1, 621 P.2d 1256 (1980). See State v. Lehman, 40 Wn. App. 400, 698 P.2d 606, review denied, 104 Wn.2d 1009 (1985). We adopt a similar exception here. The admission of the State's blood alcohol test at trial was not error.
CONCLUSION
The IAD does not apply to sentencing detainers. Dismissal of the information under article 5 of that statute is not required. The admission of the State's blood test at trial was not error.
We affirm petitioner's conviction for negligent homicide.
PEARSON, C.J., and UTTER, BRACHTENBACH, DOLLIVER, ANDERSEN, CALLOW, GOODLOE, and DURHAM, JJ., concur.
NOTES
[1] Michael E. Barefield is an alias used by George Meskuotis. We refer to Barefield to conform to the pleadings at earlier stages of this case.
[2] While interpretation of the IAD is a matter of federal law, Cuyler v. Adams, 449 U.S. 433, 438-440, 66 L.Ed.2d 641, 101 S.Ct. 703 (1981), this court is not bound by the interpretations placed on federal law by inferior federal courts. Amalgamated Clothing Workers of Am. v. Richman Bros., 348 U.S. 511, 99 L.Ed. 600, 75 S.Ct. 452 (1955).
[3] The IAD defines "receiving state" as that state holding the prisoner and receiving a request from a sister state that it be notified when his release is imminent. The "sending state" is defined as the state wishing to be notified so that it may take custody of the prisoner.
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664 N.E.2d 1032 (1996)
278 Ill. App.3d 24
216 Ill.Dec. 104
In re Brad ISRAEL, Alleged to be a Person in Need of Involuntary Psychotropic Medication
(The People of the State of Illinois, Petitioner-Appellee,
v.
Brad Israel, Respondent-Appellant).
No. 2-95-0623.
Appellate Court of Illinois, Second District.
February 28, 1996.
*1034 Guardianship & Advocacy Commission, Legal Advocacy Service, State of Illinois, William E. Coffin, Teresa L. Berge, Rockford, IL, John B. Lower, Chicago, for Brad Israel.
Paul A. Logli, Winnebago County State's Attorney, Rockford, William L. Browers Deputy Director, Diane L. Campbell, State's Attorneys Appellate Prosecutor, Elgin, for People of the State of Illinois.
Justice INGLIS delivered the opinion of the court:
Respondent, Brad Israel, appeals the order of the circuit court of Winnebago County which granted the State's motion to involuntarily administer psychotropic medication to respondent. We reverse.
On February 6, 1995, the State filed a petition to involuntarily administer psychotropic drugs to respondent pursuant to section 2-107.1 of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/2-107.1 (West 1994)). After hearing extensive testimony, including respondent's own testimony, the court denied the petition on the grounds that the State had failed to prove by clear and convincing evidence that (1) respondent lacked the capacity to make a reasoned decision regarding the medication; and (2) the benefits of the medication would outweigh the harm.
On April 11, 1995, the State again filed a petition seeking to involuntarily administer psychotropic drugs to respondent. The trial court dismissed that petition on the grounds of res judicata.
On April 18, 1995, the State filed another petition for the involuntary administration of psychotropic drugs, which petition is the subject of the present appeal. Respondent filed a motion to dismiss on the grounds of res judicata, collateral estoppel, substituted judgment, and lack of refusal to take a psychotropic medication. The court denied respondent's motion, and the matter proceeded to trial.
The State's first witness was Scott Reese, an employee of the Singer Mental Health Facility (facility), where respondent is currently residing. Reese testified that on May 16, 1995, he was working at the facility. Reese observed an incident in which respondent and a female patient bumped into each other. Reese indicated that respondent grabbed the female patient and struck her with his hand. Reese testified that the female patient had a red mark on her forearm and cheek from respondent's actions.
The State then called Darleen Brunke, a registered nurse at the facility. She testified that on March 30, 1995, respondent had indicated that he was feeling better because his head and neck were now connected.
The next witness to testify was Diane Clevenger, a licensed practical nurse at the facility. She testified that on April 10, 1995, the facility staff had requested that respondent move away from a table. Respondent refused, whereupon Clevenger pulled his chair back. Respondent then accused Clevenger of assaulting him, and he said he was going to call his lawyer and sue her. Clevenger also indicated that respondent told her that he had been at the facility since he was 14 years old and that he had been cut several times between his legs and had been sexually assaulted.
Clevenger also testified that on April 13, 1995, she overheard a telephone conversation between respondent and an unknown party. Clevenger indicated that respondent again indicated that he had been in the facility for 14 years, had been cut on the legs several times, and had been sexually assaulted. Respondent also indicated that his genitals had been cut off but that God had reattached them.
*1035 She further testified that on April 11 or April 12, 1995, respondent refused to get out of bed. When she and other staff members entered his room to get him out of bed, respondent accused them of assaulting him. He further indicated that he was going to have them charged with an assault and battery.
The next witness to testify was Dr. Kamal Modir, respondent's psychiatrist. Dr. Modir testified that, while respondent was suffering from a mental illness, he was unable to specifically diagnose the exact type of mental illness which was afflicting respondent. Dr. Modir testified that respondent displayed paranoid thoughts and hostility. Dr. Modir also testified that respondent often would become explosive and aggressive and continued to exhibit delusional thought patterns.
Dr. Modir testified that, in the past, respondent had been cooperative with his treatment and had been functioning more rationally. However, Dr. Modir testified that lately respondent had become uncooperative and that the incidents of respondent's inappropriate behavior were increasing.
Dr. Modir indicated that the two psychotropic drugs which he was seeking to administer to respondent were Risperdal and Haldol. Dr. Modir testified that respondent would greatly benefit from these drugs in that he would become more rational in his thinking, his delusional ideation would decrease, and he would be much more rational in his relationships with other people. Dr. Modir indicated that, if respondent were to take these medications, it might be possible that he would be able to function outside of the facility.
Dr. Modir did admit that there could be some harmful side effects from the medications. Dr. Modir indicated that there were fewer side effects associated with Risperdal than with Haldol. Possible side effects which might be associated with Risperdal include tardive dyskinesia and neuroleptic malignant syndrome. Possible side effects which are associated with Haldol also include tardive dyskinesia, neuroleptic malignant syndrome, and insomnia. Dr. Modir testified that the chances of respondent experiencing these side effects were minimal considering the low dose which Dr. Modir was seeking to administer.
Respondent had previously been on both Haldol and Risperdal. There is, however, a discrepancy as to whether respondent had actually been taking the Risperdal when it was given to him. During the period of time when respondent was allegedly taking the Risperdal, he complained that he had trouble breathing, and respondent did receive emergency medical attention. Respondent was given Cogentin, a medication which is used to combat the side effects of Risperdal. However, when respondent's blood was tested, there was no evidence of Risperdal in respondent's system, which led Dr. Modir to conclude that respondent had not been taking his Risperdal as prescribed.
Respondent also had previously been on Haldol, but had also complained of side effects. Both drugs were discontinued in light of respondent's complaints. Respondent had also been treated for lithium toxicity several years previous.
Dr. Modir testified that he explained the benefits and possible side effects of the medications to respondent and that respondent refused either medication. Dr. Modir indicated that respondent did not feel that his previous experience with both Risperdal and Haldol had been beneficial. Respondent further indicated that the risk of the side effects of the medication was unacceptable to him.
The court then inquired as to Dr. Modir's basis for concluding that respondent's reason for refusing the medication was irrational. Dr. Modir responded that respondent did not believe he was mentally ill and was under the impression that everyone was against him. While Dr. Modir did admit that respondent had complained of side effects in the past, because respondent had not been taking the Risperdal that was given to him, it was Dr. Modir's opinion that any problems which respondent may have experienced were not caused by the Risperdal. Dr. Modir indicated that while respondent was taking the Haldol he did not observe that respondent experienced any side effects from the Haldol.
Lastly, the State called Mark Young, a registered nurse at the facility. Young testified *1036 that on April 11, 1995, respondent assaulted another patient at the facility, hitting the patient in the face three times. Young did not, however, observe who was the initial aggressor in the confrontation. The State then rested. Respondent did not call any witnesses, nor was respondent present to testify.
The court then presented its findings. The court first found that there had been a sufficient change in circumstances to allow the State to present another petition. The court found that sufficient evidence was presented to show that respondent had a serious mental illness. The court also found that sufficient evidence was presented to demonstrate that respondent's mental illness resulted in a deterioration in his ability to function and that this deterioration has existed for a sufficient period of time so as to satisfy section 2-107.1(d)(3) of the Code (405 ILCS 5/2-107.1(d)(3) (West 1994)). The court found that the State had demonstrated that less restrictive methods would not be effective in treating respondent.
The court indicated that the two key issues in the case at bar were whether the benefits of the psychotropic medications outweighed the medications' possible harm and whether respondent lacked the capacity to make a reasoned decision concerning the medications. The court found that substantial evidence had been presented concerning the benefits of the medications. The court recognized that the medications could have some potentially harmful side effects, but found that the benefits of the medications outweighed their possible harm.
The court noted that Dr. Modir had testified that the basis for respondent's refusal to take the medications was not based on actual facts, but, rather, was based "on a kind of paranoia." Because Dr. Modir had testified that there was no rational basis for respondent's complaints concerning the side effects of the medications, especially in light of the fact that there was no evidence of Risperdal in respondent's system when he was complaining of the Risp.'s side effects, the court found that respondent's reason for refusing the medications was not rational. Thus, the court found that respondent lacked the capacity to make a reasoned decision concerning the medications.
The trial court entered an order for the involuntary administration of psychotropic medication. Respondent moved to stay the order pending appeal, which motion was denied. This timely appeal followed.
On appeal, respondent contends that the trial court erred in denying respondent's motion to dismiss the petition on the grounds of lack of subject matter jurisdiction, res judicata, and collateral estoppel. Respondent also contends that the trial court erred in refusing to apply the substituted judgment standard and that the trial court's order which allowed the State to involuntarily administer psychotropic medication was against the manifest weight of the evidence.
Respondent first argues that the trial court lacked subject matter jurisdiction over the petition because respondent consented to take Valium, a psychotropic medication. Respondent argues that, because respondent was voluntarily taking Valium, he was not refusing to take a psychotropic medication and, thus, the trial court did not have jurisdiction over the petition.
While respondent raises an interesting argument, it does not follow logically that just because a person consents to take one type of medication, the State is precluded from seeking to administer another type of medication. Section 2-107.1 of the Code provides that psychotropic medication may be administered to a recipient of services against his will so long as the standards and procedures of this section are followed. 405 ILCS 5/2-107.1 (West 1994).
Dr. Modir testified that respondent was taking Valium in order to treat his anxiety and to calm him down. The Valium was not being used for behavioral modification or management. The only medications which would treat respondent's delusions and paranoia are the Haldol and Risperdal.
Respondent alleges that merely because a patient disagrees with a doctor concerning a specific medication, the State should not be able to resort to the judicial system to resolve such a dispute. However, as noted *1037 above, Valium, Risperdal, and Haldol are very different medications in that they treat very different problems. As such, the State is not precluded from filing a petition seeking to administer another type of medication, just because respondent consented to take one type of medication.
Respondent next argues that the trial court erred in refusing to dismiss the petition on the grounds of res judicata. As noted above, on February 6, 1995, the State filed a petition seeking to administer psychotropic medication to respondent. This motion was denied, and on April 11, 1995, another petition was filed. This petition was dismissed on the grounds of res judicata. On April 18, 1995, the State again filed a petition seeking to administer psychotropic medication to respondent. Respondent argues that this petition also should be dismissed pursuant to a theory of res judicata.
Pursuant to the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies. In re Connors, 255 Ill.App.3d 781, 783, 194 Ill.Dec. 529, 627 N.E.2d 1171 (1994). The doctrine extends not only to what actually was decided in the original action but also to those matters which could have been decided in the previous action. Connors, 255 Ill.App.3d at 783, 194 Ill.Dec. 529, 627 N.E.2d 1171.
In Connors, the State filed a petition to involuntarily admit a person into a mental health facility. Connors, 255 Ill.App.3d at 782, 194 Ill.Dec. 529, 627 N.E.2d 1171. The petition was dismissed, and the State filed a second petition. The court concluded that the only evidence presented at the second hearing concerned incidents which had occurred prior to the first hearing. Connors, 255 Ill.App.3d at 784, 194 Ill.Dec. 529, 627 N.E.2d 1171. Thus, the trial court concluded that the second petition was barred by the doctrine of res judicata and ordered the petition dismissed. Connors, 255 Ill.App.3d at 786, 194 Ill.Dec. 529, 627 N.E.2d 1171.
The court did, however, indicate that, if a change in circumstances had been shown, the State would have been able to file a second petition. Connors, 255 Ill.App.3d at 784, 194 Ill.Dec. 529, 627 N.E.2d 1171. In the case at bar, the State presented evidence of several episodes involving respondent and his inability to interact with the facility staff and patients which had occurred after the hearing on the first petition. The trial court specifically found that there had been a change in circumstances which allowed the State to file another petition. We agree and find that the State's petition was not barred by res judicata.
Respondent next argues that the trial court erred in refusing to dismiss the State's petition based on collateral estoppel. While res judicata is designed to bar the relitigation of claims, collateral estoppel bars the relitigation of particular facts or issues decided in a prior adjudication between the same parties in a different cause of action. Metro Utility Co. v. Illinois Commerce Comm'n, 262 Ill.App.3d 266, 271, 199 Ill.Dec. 538, 634 N.E.2d 377 (1994). In order to prevail on a claim of collateral estoppel, the issue of fact decided in the first case must be identical to the issue of fact decided in the present case. Housing Authority v. YMCA, 101 Ill.2d 246, 252, 78 Ill.Dec. 125, 461 N.E.2d 959 (1984). Further, the factual issue must have actually and necessarily been litigated and determined in the first case. Housing Authority, 101 Ill.2d at 252, 78 Ill. Dec. 125, 461 N.E.2d 959.
Respondent argues that the trial court had already determined that the benefits of Risperdal and Haldol were outweighed by the risks of both medications. Respondent further argues that the issue of whether respondent had the capacity to make a reasoned decision concerning the medications had also already been determined by the trial court in the February hearing. Thus, respondent argues that the trial court was barred from revisiting these issues in the present proceeding.
The trial court's February order found that the State had failed to prove by clear and convincing evidence that the benefits of the medications outweighed the medications' harm and that respondent lacked the capacity to make a reasoned decision concerning *1038 the medications. The court did not make a finding that the harm of the medications outweighed the medications' benefits, nor did the trial court make a determination that respondent had the capacity to make a reasoned decision concerning the medications. Because the trial court did not actually determine that the medications' harm outweighed their benefits or that respondent had the capacity to make a reasoned decision, the trial court is not barred from revisiting these issues.
Respondent next argues that the trial court erred in failing to apply the "substituted judgment" standard. Respondent argues that when making decisions for incompetent persons, where there is evidence of the person's competent wishes, the trial court should utilize the "substituted judgment" standard. The "substituted judgment" standard is defined as depending upon the subjective attitudes of the recipient while the recipient is competent. In re C.E., 161 Ill.2d 200, 221, 204 Ill.Dec. 121, 641 N.E.2d 345 (1994). Respondent argues that because respondent had indicated during the February hearing that he did not wish to take the medications, the court was required to respect respondent's competent wishes.
Section 2-107.1 does not indicate whether a trial court should utilize the objective "best interests" or the subjective "substituted judgment" test. 405 ILCS 5/2-107.1 (West 1994). However, the supreme court has indicated that the trial court can consider the "substituted judgment" of the patient and should, in fact, respect the competent wishes expressed by the mental health patient. C.E., 161 Ill.2d at 221, 204 Ill.Dec. 121, 641 N.E.2d 345. However, where the patient's competent wishes have not been clearly proven, the court should be guided by the more objective "best interests" test. C.E., 161 Ill.2d at 221, 204 Ill.Dec. 121, 641 N.E.2d 345.
In the case at bar, the trial court specifically considered respondent's wishes concerning the medications. The court noted that respondent had raised numerous objections to the medications, but went on to conclude that respondent's best interests would be served by the administration of the medications.
Respondent argues, however, that the court was required to follow respondent's wishes which were made known at the February hearing because there was clear evidence of respondent's competent wishes.
At the February hearing, evidence was presented by the State which indicated that respondent was suffering from a mental illness and was suffering from delusions. Further, evidence was presented which indicated that respondent's objections concerning the medications were not rational. While the court did determine that the State had not met its burden, such a finding was not sufficient to render respondent's testimony "clear" evidence of respondent's competent wishes concerning the administration of medication. See In re Schaap, 274 Ill.App.3d 497, 502, 211 Ill.Dec. 274, 654 N.E.2d 1084 (1995).
Respondent next argues that the decision of the trial court which allowed the State's petition was against the manifest weight of the evidence. Section 2-107.1 of the Code provides that psychotropic medication shall not be administered to the recipient unless it has been determined that all of the following factors are present:
"(1) That the recipient has a serious mental illness or developmental disability.
(2) That because of said mental illness or developmental disability, the recipient exhibits deterioration of his ability to function, suffering, or threatening or disruptive behavior.
(3) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in paragraph (2) of subsection (d) of this Section or the repeated episodic occurrence of these symptoms.
(4) That the benefits of the psychotropic medication will outweigh the harm.
(5) That the recipient lacks the capacity to make a reasoned decision about the medication.
(6) That other less restrictive services have been explored and found inappropriate." 405 ILCS 5/2-107.1(d) (West 1994).
*1039 Respondent specifically argues that the State failed to prove by clear and convincing evidence that he lacked the capacity to make a reasoned decision about the medications or that the benefits of the medications would outweigh their harm.
Clear and convincing evidence is defined as the quantum of proof which leaves no reasonable doubt in the mind of the fact finder as to the veracity of the proposition in question. Bazydlo v. Volant, 164 Ill.2d 207, 213, 207 Ill.Dec. 311, 647 N.E.2d 273 (1995). As a reviewing court, we give great deference to the trial court's factual findings because the court stands in the best position to weigh the credibility of all the witnesses; thus, we will disturb the trial court's decision only if it is manifestly erroneous. In re Jeffers, 239 Ill.App.3d 29, 35, 179 Ill.Dec. 895, 606 N.E.2d 727 (1992). However, we also note that respondent was not present and did not testify before the trial court and, thus, the trial court was unable to evaluate and judge respondent's credibility.
We will begin by addressing respondent's argument that the State did not prove by clear and convincing evidence that the benefits of the medications outweighed the harm. Respondent argues that there was extensive evidence before the trial court as to the possible serious side effects of both Haldol and Risperdal. Respondent further notes that psychotropic medication is less effective where the recipient of the medication does not agree to accept the medication. C.E., 161 Ill.2d at 220, 204 Ill.Dec. 121, 641 N.E.2d 345.
Dr. Modir testified, however, that the benefits in the case at bar would substantially outweigh any possible negative effects of the medications. While we recognize that there are potential side effects of psychotropic medication, there is little dispute that these medications can be the most effective means of treating and controlling a mental illness. See Washington v. Harper, 494 U.S. 210, 226, 110 S.Ct. 1028, 1039, 108 L.Ed.2d 178, 201 (1990). Dr. Modir also testified that, in light of the low dosages which were going to be administered to respondent, the possibility of negative side effects was significantly diminished.
We also recognize that respondent had suffered a reaction to the lithium medication which required hospitalization. Respondent also was hospitalized after complaining about his reaction to Risperdal. However, evidence was presented that, at the time that respondent was complaining about the Risperdal's side effects, he did not have any trace of the medication in his system. After having examined all the evidence presented in the case at bar, we cannot say that the trial court's determination that the benefits of the medications outweighed their harm was clearly erroneous.
We turn now to respondent's contention that the trial court's determination that respondent lacked the capacity to make a reasoned decision concerning the medications was in error. An individual has the capacity to make treatment decisions for himself when, based upon conveyed information concerning the risks and benefits of the proposed treatment and reasonable alternatives to treatment, he makes a rational choice to either accept or refuse the treatment. In re Orr, 176 Ill.App.3d 498, 512-13, 125 Ill.Dec. 885, 531 N.E.2d 64 (1988). Illinois courts, however, have not articulated specific standards or guidelines which the courts should consider when determining if a person has the capacity to make a reasoned decision concerning the administration of psychotropic medication.
However, courts in other jurisdictions have addressed this problem and have formulated a list of factors which a court can consider in evaluating a person's capacity to consent or refuse treatment. A recent Wisconsin decision indicated that a court should consider the following factors:
"(a) Whether the patient is able to identify the type of recommended medication or treatment;
(b) whether the patient has previously received the type of medication or treatment at issue;
(c) if the patient has received similar treatment in the past, whether he or she can describe what happened as a result *1040 and how the effects were beneficial or harmful;
(d) if the patient has not been similarly treated in the past, whether he or she can identify the risks and benefits associated with the recommended medication or treatment; and
(e) whether the patient holds any patently false beliefs about the recommended medication or treatment which would prevent an understanding of legitimate risks and benefits." In re Virgil D., 189 Wis.2d 1, 15, 524 N.W.2d 894, 899-900 (1994).
A New York court also formulated a set of factors which courts should consider in evaluating a person's capacity. These factors are:
"(1) [T]he person's knowledge that he has a choice to make;
(2) the patient's ability to understand the available options, their advantages and disadvantages;
(3) the patient's cognitive capacity to consider the relevant factors;
(4) the absence of any interfering pathologic perception or belief, such as a delusion concerning the decision;
(5) the absence of any interfering emotional state, such as severe manic depression, euphoria or emotional disability;
(6) the absence of any interfering pathological motivational pressure;
(7) the absence of any interfering pathological relationship, such as the conviction of helpless dependency on another person; [and]
(8) an awareness of how others view the decision, the general social attitude toward the choices and an understanding of his reason for deviating from that attitude if he does." Rivers v. Katz, 67 N.Y.2d 485, 498, 504 N.Y.S.2d 74, 81 n. 7, 495 N.E.2d 337, 344 n.7 (1986).
We decline to adopt in whole either of these lists of factors. Rather, we find that a court should consider the following factors in determining whether an individual has the capacity to make a reasoned decision concerning the administration of psychotropic medication:
(1) The person's knowledge that he has a choice to make;
(2) The person's ability to understand the available options, their advantages and disadvantages;
(3) Whether the commitment is voluntary or involuntary;
(4) Whether the person has previously received the type of medication or treatment at issue;
(5) If the person has received similar treatment in the past, whether he can describe what happened as a result and how the effects were beneficial or harmful; and
(6) The absence of any interfering pathologic perceptions or beliefs or interfering emotional states which might prevent an understanding of legitimate risks and benefits. None of these enumerated factors should be considered dispositive, and a court should consider any other relevant factors which it deems might be present.
We now consider respondent's argument in light of the above-listed factors. First, there was no evidence presented which would indicate that respondent was unaware that he had a choice to make. Dr. Modir testified that he specifically discussed the benefits and possible side effects with respondent and that respondent had indicated that he did not wish to take the medications. Further, on previous occasions, respondent had consented to the medications, and when respondent indicated he no longer wished to consent to the medications, they were discontinued.
Second, it would appear that respondent was able to differentiate between the available options, as well as the various advantages and disadvantages of each. Dr. Modir testified that respondent was able to differentiate between the different medications. While there is no evidence that respondent acknowledged that the medications might have had a positive effect, evidence was presented which clearly indicated that respondent recognized the potential adverse side effects of each of the medications. While there is some discrepancy as to whether respondent had actually taken the Risperdal *1041 when it had previously been prescribed, respondent was aware of both medications' potential side effects.
Third, respondent was voluntarily in the Singer facility. Respondent apparently agreed to reside at the Singer facility and seek treatment. He consented to take Valium, a psychotropic drug which apparently does not have significant side effects. It was only when the State sought to administer other drugs with possible serious side effects that respondent had objected.
Fourth, conflicting evidence was presented as to whether respondent had received Haldol or Risperdal in the past. There was evidence presented that respondent had taken Haldol in the past with no significant side effects. As to the Risperdal, respondent alleges that he had a severe reaction to the Risperdal in the past. When respondent was tested for the presence of Risperdal in his system, no traces were found, which led Dr. Modir to conclude that respondent had not been taking the medication. However, no evidence was presented as to how long the Risperdal would have remained in respondent's system, nor was Dr. Modir able to conclusively establish when respondent's blood had actually been tested.
Fifth, it is unclear whether respondent was able to identify the risks and benefits associated with the Risperdal because it is unclear whether he had actually taken the medication in the past. Respondent clearly identified the fact that he was hospitalized with breathing problems, which problems, in respondent's opinion, were a result of the administration of Risperdal. Respondent clearly was not able to identify any benefits which might have been associated with either medication.
Sixth, Dr. Modir testified that respondent's delusions and paranoia affected his decisionmaking ability. Dr. Modir indicated that, because respondent had not been taking the Risperdal at the time when he claimed he suffered the adverse side effects, respondent's delusions rendered the basis of his refusal to take the Risperdal irrational.
After considering each of the above factors, we find that the trial court's decision that respondent lacked the capacity to make a reasoned decision concerning the medications at issue to have been against the manifest weight of the evidence. While respondent was clearly suffering from a mental illness, he had rationally explained the basis for his refusal to take the medications.
We acknowledge that there are many situations in which the administration of drugs to an individual is clearly in that individual's best interests. C.E., 161 Ill.2d at 217, 204 Ill.Dec. 121, 641 N.E.2d 345. However, there is also a competing constitutionally protected liberty interest to refuse the administration of psychotropic drugs. C.E., 161 Ill.2d at 214, 204 Ill.Dec. 121, 641 N.E.2d 345. We believe that the factors enumerated in the case at bar adequately balance each of these competing interests. In the case at bar, the State did not sustain its burden of showing by clear and convincing evidence that respondent lacked the capacity to make a reasoned decision.
The order of the circuit court of Winnebago County which ordered that respondent be administered psychotropic drugs is reversed.
Reversed.
McLAREN, P.J., concurs.
Justice DOYLE, dissenting:
I fully agree with nearly every aspect of the majority opinion; however, I respectfully disagree that an application of the recognized factors to the circumstances of this case indicates the trial court's determination that respondent lacked the capacity to make a reasonable decision concerning medication is against the manifest weight of the evidence.
In my view, the trial court correctly identified a central consideration evident from the testimony, i.e., evidence of interfering pathological perceptions or beliefs which might prevent an understanding of legitimate risks and benefits. (Factor No. 6 in majority's discussion.) This factor appears to directly complement factor No. 2, the person's ability to understand the available options, their advantages and disadvantages.
There was uncontradicted psychiatric testimony that respondent was afflicted with a serious mental illness which deprived him of *1042 the capacity to make a reasoned decision. It is undisputed that his reasoning was hampered by delusional thought patterns and paranoid thoughts and that respondent often became explosive and aggressive. His condition was deteriorating, and he was becoming more unruly, attacking other patients, etc. The expert opinion describing respondent's delusional thinking was corroborated by nurses' testimony that he said God had attached his previously severed genitals and that respondent felt better at times when his head was connected to his neck.
I recognize that the fact of mental illness alone will not preclude accepting a patient's decision on the question of psychotropic medication. However, I do not believe it was against the manifest weight of the evidence, here, for the trial court to have concluded, consistent with the expert opinion, that respondent's thought processes were so disrupted by his mental illness as to deprive him of the capacity to make a rather sophisticated decision concerning medication.
Although I agree with the majority that a court must consider and weigh all six of the enumerated factors, I believe that the existence of severe delusional and erratic thinking, as here, can weigh so heavily as to guide the trial court in its determination that the administration of the medication is necessary and warranted. I would affirm the trial court's judgment.
| {
"pile_set_name": "FreeLaw"
} |
Filed 3/7/17; pub. order 4/6/17 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Colusa)
----
VINCENT E. SCHOLES, C070770
Plaintiff and Appellant, (Super. Ct. No. CV23759)
v.
LAMBIRTH TRUCKING COMPANY,
Defendant and Respondent.
In 2007 a fire spread from defendant Lambirth Trucking Company’s (Lambirth)
storage site to plaintiff Vincent Scholes’ property. Scholes’ third amended complaint
alleged negligent trespass, intentional trespass, and strict liability against Lambirth.
Lambirth demurred to the third amended complaint, arguing it was barred by the statute
of limitations and failed to state a viable claim for intentional trespass or strict liability.
The trial court sustained the demurrer without leave to amend. Proceeding in pro per,
Scholes appeals, arguing the trial court erred in finding his claims barred by the statute of
limitations and by failing to grant Scholes leave to amend. We shall affirm the judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
The Fire
Since 2003, Lambirth has operated a soil amendment and enhancement company
adjacent to Scholes’ real property. Lambirth’s company grinds wood products and stores
wood chips, sawdust, and rice hulls, the remnants of which have blown onto Scholes’
property.
On May 12, 2007, a fire broke out at Lambirth’s operation. In the aftermath,
Scholes complained to Lambirth about wood chips and rice hulls piling up on his
property. In addition, local authorities warned Lambirth of the hazards presented by such
storage. In response, Lambirth began removing wood chips and rice hulls from Scholes’
property. Subsequently, on May 21, 2007, another fire broke out on Lambirth’s property
and spread to Scholes’ property.
Original Complaint
Scholes filed his original complaint on May 21, 2010, three years after the fire.
The complaint named as defendants Lamberth [sic] Trucking Company and its insurer
Financial Pacific Insurance Company (Financial Pacific) and stated it was for a “dispute
compensation on insurance claim.” Scholes alleged “[d]efendants have accepted liability,
dispute amount of damages from fire.” The complaint alleged Scholes lost use of his
property and suffered general and property damages.
First Amended Complaint
On January 24, 2011, Scholes filed a first amended complaint against Lambirth
and Financial Pacific for damages to property and loss of crops. In his complaint,
Scholes sought compensation for property lost in the fire, loss of crops, and loss of use of
property. Scholes did not assert any additional causes of action in the form complaint.
Lambirth and Financial Pacific filed a motion for judgment on the pleadings,
arguing Scholes failed to state facts sufficient to state a cause of action. The trial court
granted the motion with leave to amend.
2
Second Amended Complaint
Scholes filed a second amended complaint on August 9, 2011, against “John
Lambirth Trucking”, Financial Pacific, and Financial Pacific’s officers and directors.
The second amended complaint alleged a cause of action against Lambirth for trespass,
stating Lambirth provided no structures to contain the wood chips and rice hulls on its
property, allowed wood chips and rice hulls to trespass on Scholes’ property, and
provided no water source to suppress “any fire that may ignite in or by said flammable
materials.” According to the complaint, “But for the flammable materials from
[Lambirth’s] business operation that said defendant allowed to encroach and trespass
upon [Scholes’] real property, there would have been no fuel to ignite [Scholes’] personal
property stored upon the real property on May 21, 2007.” In October 2011 Scholes
agreed to dismiss with prejudice his action against Financial Pacific and its officers and
directors.
Lambirth demurred to the second amended complaint, arguing it was barred by the
statute of limitations. The trial court sustained the demurrer with leave to amend the first
cause of action.
Third Amended Complaint
Subsequently, on November 10, 2011, Scholes filed a third amended complaint
alleging three causes of action: negligent trespass, intentional trespass, and strict liability
(trespass through unnatural activity). The complaint stated that in 2003, Lambirth began
operating a soil amendment and enhancement business adjacent to Scholes’ property on
which it stored wood chips, sawdust, rice hulls, and other combustible material. The
storage of combustible materials violated Civil Code section 1014 and was “unnatural.”
According to the complaint, on May 12, 2007, after the fire on Lambirth’s
property, fire authorities warned Lambirth of the hazards presented by its storage.
Nineteen days later, on May 21, 2007, “ a fire erupted at the storage site of said
combustible materials of Defendant which Defendant failed to either control or suppress
3
due to inadequate water supplies and other fire suppression equipment and inadequate
manpower for such purposes which fire spread to the realty of Plaintiff and destroyed
personal property, growing crops, and other growth,” “motor vehicles,” “other
mechanical equipment,” and “damaged and destroyed a walnut orchard.” Scholes
requested triple damages under Civil Code section 3346 and Code of Civil Procedure
section 733 for the damage to the walnut orchard.1
Lambirth filed a demurrer to the third amended complaint arguing it was barred by
the statute of limitations and failed to state a viable claim for intentional trespass or strict
liability. In response, Scholes asserted a three-year statute of limitations applied to his
cause of action for trespass and the third amended complaint related back to the original
complaint.
The trial court sustained the demurrer without leave to amend and dismissed the
action. Following entry of judgment, Scholes filed a timely appeal.
DISCUSSION
I.
The function of a demurrer is to test the sufficiency of the complaint by raising
questions of law. We give the complaint a reasonable interpretation and read it as a
whole with all parts considered in their context. A general demurrer admits the truth of
all material factual allegations. We are not concerned with the plaintiff’s ability to prove
the allegations or with any possible difficulties in making such proof. We are not bound
by the construction placed by the trial court on the pleadings; instead, we make our own
independent judgment. (Herman v. Los Angeles County Metropolitan Transportation
Authority (1999) 71 Cal.App.4th 819, 824.)
1All further statutory references are to the Code of Civil Procedure unless otherwise
designated.
4
Where the trial court sustains the demurrer without leave to amend, we must
decide whether there is a reasonable possibility the plaintiff can cure the defect with an
amendment. If we find that an amendment could cure the defect, we must find the court
abused its discretion and reverse. If not, the court has not abused its discretion. The
plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v.
Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)
II.
On appeal, a party challenging an order has the burden to show error by providing
an adequate record and making coherent legal arguments, supported by authority, or the
claims will be deemed forfeited. (See People v. Freeman (1994) 8 Cal.4th 450, 482,
fn. 2; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; In re S.C. (2006) 138 Cal.App.4th
396, 408.) The rules of appellate procedure apply to Scholes even though he is
representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991)
234 Cal.App.3d 117, 121.) A party may choose to act as his or her own attorney. We
treat such a party like any other party, and he or she “ ‘is entitled to the same, but no
greater consideration than other litigants and attorneys. [Citation.]’ ” (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1247.)
III.
In his third amended complaint, Scholes alleged three causes of action: negligent
trespass, intentional trespass, and unnatural activity trespass. All three causes of action
stemmed from damage caused by the fire on May 21, 2007.
The negligence cause of action alleged Lambirth stored combustible material on
its land over the repeated objections of Scholes, and despite the warnings of fire
authorities. After the fire erupted, Lambirth failed to control or suppress it due to
inadequate water supplies and other fire suppression equipment which resulted in damage
to Scholes’ property in the amount of $204,277.82. Lambirth’s act violated Civil Code
section 1014. Scholes requested triple damages under Civil Code section 3346.
5
In his intentional trespass cause of action, Scholes alleged Lambirth’s storage of
combustible materials and its failure to mitigate the risk of fire was the “equivalent of a
conscious disregard of said risk and therefore rendered said conduct of defendant
willful.” In his final cause of action for strict liability (unnatural activity trespass)
Scholes alleges simply: “The accumulation and storage of said combustible materials
was unnatural and was done and performed by Defendant such it is strictly liable under
the common-law doctrine of Wintergreen v. Winterbottom for said damages.”2
IV.
Lambirth argues section 339, subdivision (1) sets forth the applicable statute of
limitations: “Within two years: 1. An action upon a contract, obligation or liability not
founded upon an instrument of writing, except as provided in Section 2725 of the
Commercial Code or subdivision 2 of Section 337 of this code.” Lambirth contends the
statute of limitations for trespass, three years pursuant to section 338, subdivision (b),
does not apply.
According to Lambirth, the two-year limitations period applies to actions in which
the damage to a plaintiff’s property is consequential only and arises from a defendant’s
lawful act not done on a plaintiff’s property, but committed elsewhere “and causing as a
consequence thereof some injury to plaintiff’s property not arising from an entry thereon
by the defendant or his agencies.” (Porter v. City of Los Angeles (1920) 182 Cal. 515,
518.) Lambirth argues the Supreme Court has held that the three-year period allowed for
maintenance of an action for trespass on real property, section 338, subdivision (b),
applies only where there is an actual entry on the property or direct injury amounting to
trespass. In support, Lambirth cites Crim v. City & County of San Francisco (1907)
2 Neither party references Wintergreen v. Winterbottom.
6
152 Cal. 279 (Crim) and Denari v. Southern California Ry. Co. (1898) 122 Cal. 507
(Denari).
Lambirth is mistaken. In Elton v. Anheuser-Busch Beverage Group, Inc. (1996)
50 Cal.App.4th 1301, 1305-1306 (Elton), the appellate court reviewed the history of the
distinction between direct and consequential damages in determining whether a trespass
had occurred. Although older cases, including Crim and Denari, concluded a
consequential trespass was not a trespass within the meaning of section 338, the Supreme
Court in Coley v. Hecker (1928) 206 Cal. 22, 28 stated: “ ‘The trend of the decisions of
this court is generally in accord with the doctrine whenever the question has come before
it, that trespasses may be committed by consequential and indirect injuries as well as by
direct and forcible injuries.’ ” In 1982 the Supreme Court reiterated that the rule has
evolved in California that trespass may be committed by consequential and indirect injury
as well as by direct and forcible injury. (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d
229, 232.)
The Elton court concluded: “Thus, we need not decide whether the damages to
the plaintiffs’ property were an indirect consequence of the defendant’s act of lighting the
fire or a direct result of the defendant’s negligence in allowing the fire to escape, or
whether the common law would classify an action to recover compensation for such
damages as an action for trespass or on the case. [Citation.] The distinction between
direct and consequential damages having been abandoned, the possibility that the
damages may have been only an indirect consequence of the fire does not prevent the
escape of that fire from constituting a trespass.” (Elton, supra, 50 Cal.App.4th at
p. 1306.)
V.
Therefore, the three-year statute of limitations under section 338, subdivision (b)
applies to Scholes’ causes of action for trespass. The fire took place on May 21, 2007,
and Scholes filed his original complaint on May 21, 2010. However, Scholes did not
7
allege trespass until his second amended complaint filed in August 2011, over three years
after the fire.
Unless an amended complaint relates back to a timely filed original complaint, it
will be barred by the statute of limitations. (Barrington v. A.H. Robins Co. (1985)
39 Cal.3d 146, 150.) Under the relation-back doctrine, in order to avoid the statute of
limitations, the amended complaint must: rest on the same general set of facts as the
general complaint, refer to the same accident and same injuries as the original complaint,
and refer to the same instrumentality as the original complaint. (Norgart v. Upjohn Co.
(1999) 21 Cal.4th 383, 408-409.)
A complaint must contain a statement of the facts constituting the cause of action
in ordinary and concise language. (§ 425.10, subd. (a)(1).) This requirement obligates
the plaintiff to allege ultimate facts that, taken as a whole, apprise the defendant of the
factual basis of the claim. (Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684,
689-690.) The requirement that the complaint allege ultimate facts forming the basis for
the plaintiff’s cause of action is central to the relation-back doctrine and the
determination of whether an amended complaint should be deemed filed as of the date of
the original pleading. (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415
(Davaloo).)
The relation-back doctrine requires us to compare the factual allegations in the
original and amended complaints. (Davaloo, supra, 135 Cal.App.4th at p. 416.) “Just as
a plaintiff who changes the essential facts upon which recovery is sought is not entitled to
the benefits of the relation-back doctrine, so too a plaintiff who files a complaint
containing no operative facts at all cannot subsequently amend the pleading to allege
facts and a theory of recovery for the first time and claim the amended complaint should
be deemed filed as of the date of the original, wholly defective complaint: Going from
nothing to something is as much at odds with the rationale for allowing an amended
8
pleading to relate back to the filing of the original documents as changing from one set of
facts to a different set.” (Ibid.)
Here, Scholes’ original complaint alleges a cause of action for “[d]ispute
compensation on insurance claim.” The relief sought is “compensation for property
loss.” Finally, the complaint alleges “[d]efendants have accepted liability, dispute
amount of damages from fire.” Nothing else is listed in or attached to the original
complaint.
The original complaint, devoid of factual allegations, fails to meet section 425.10,
subdivision (a)’s minimal fact pleading requirement. The original complaint does not
identify the property at issue or specify the damages suffered; it merely lists “loss of use
of property” and “property damage”. The complaint fails to specify the date, origin, or
scope of the fire. The original complaint does not set forth the relationship between the
parties or any duties owed to Scholes by Lambirth. Nor does the original complaint
specify any causes of action except for checking the box for “Property Damage”.
Nothing in the original complaint sets forth any factual basis for Scholes’ subsequent
claims for negligent trespass, intentional trespass, or unnatural activity trespass. It is
impossible to even infer the nature of any dispute between Scholes and Lambirth.
In finding the amended complaint does not relate back, we rely on the totality of
the deficiencies in the original complaint, rather than any single defect. The totality of
these material deficiencies leave nothing to which the first amended complaint can be
compared to or to which they can relate back. “Although there can be no bright-line rule
as to when a complaint is so deficient to preclude relation back (any more than there is a
bright line rule when an amended set of facts is too dissimilar to the originally pleaded
set), the original complaints here—with all their deficiencies—are plainly insufficient.”
(Davaloo, supra, 135 Cal.App.4th at pp. 417-418.)
In determining whether the amended complaint alleges facts that are sufficiently
similar to those alleged in the original complaint, we consider whether the defendant had
9
adequate notice of the claim based on the original pleading. The policy behind statutes of
limitations is to put a defendant on notice of the need to defend against a claim in time to
prepare an adequate defense. This requirement is met when recovery under an amended
complaint is sought on the same basic set of facts as the original pleading. (Pointe San
Diego Residential Community L.P. v. Procipio, Cory, Hargreaves & Savitch, LLP (2011)
195 Cal.App.4th 265, 277 (Pointe San Diego); Garrison v. Board of Directors (1995)
36 Cal.App.4th 1670, 1678.)
Here, we find the lack of facts in the present case in stark contrast to the facts
found sufficient in Pointe San Diego to invoke the relation-back doctrine. In Pointe San
Diego, plaintiffs brought a malpractice action against a law firm in a complex multi-party
real estate litigation that resulted in multiple appeals. (Pointe San Diego, supra,
195 Cal.App.4th at pp. 269-270.) The trial court sustained the law firm’s demurrer
without leave to amend on the plaintiffs’ fourth amended complaint, finding the claims
barred by the statute of limitations and the relation-back doctrine inapplicable. (Id. at
p. 273.)
The appellate court reversed. The court noted the original complaint named the
plaintiffs and the law firm. It was a form complaint with the box marked “General
Negligence” checked and with an attachment alleging the law firm was the legal
(proximate) cause of damage to the plaintiffs and by “ ‘the following acts or omissions to
act, defendants negligently caused the damage to plaintiff.’ ” (Pointe San Diego, supra,
195 Cal.App.4th at p. 277.) In the description of reasons for liability section, the
plaintiffs stated their attorneys failed to use due care in the handling of the underlying
lawsuit. (Ibid.) The court found, because there was a single litigation matter in which
the law firm had represented the plaintiffs, the firm was put on notice that the
professional negligence claim was based on its representation of the plaintiffs “and of the
need to gather and preserve evidence relating to this representation.” (Id. at p. 278.)
10
The court concluded: “Procopio had represented these plaintiffs for several years
in this precise litigation, controlled the litigation strategy, participated in numerous client
conversations and meetings, and produced or had immediate access to the documents that
would inevitably become relevant in the malpractice action. Although the original
complaint did not detail how the firm had allegedly breached the standard of care, the
form complaint and the fourth amended complaint rested on the same general set of facts
(Procopio’s prosecution of the Pointe I litigation), involved the same injury (monetary
damages sustained as a result of alleged professional negligence), and referred to the
same instrumentality (alleged professional negligence).” (Pointe San Diego, supra,
195 Cal.App.4th at p. 278.)
In finding the amended complaint related back to the original complaint, the Point
San Diego court distinguished Davaloo. In Davaloo, two plaintiffs filed identically
worded complaints against State Farm, alleging breach of contract and bad faith causes of
action relating to property damage from the Northridge earthquake. The complaints
stated in general terms that the plaintiffs had suffered insured losses as a result of the
earthquake and had timely contacted the insurer regarding damages. Aside from the
caption, the complaints did not mention the defendants or plaintiffs by name and did not
provide any information about the insurance policies or the claims being made by the
plaintiffs. (Davaloo, supra, 135 Cal.App.4th at pp. 411-412; Pointe San Diego, supra,
195 Cal.App.4th at p. 280.) The Davaloo court found the relation-back doctrine was
inapplicable because of the complete lack of factual allegations. Even after liberally
construing the pleadings, the court explained “the body of each of the original complaints
at bottom alleges nothing more than the Northridge earthquake caused harm to a resident
or residents of Los Angeles County. Such an allegation falls far short of apprising State
Farm of the factual basis of their claim.” (Davaloo, supra, 135 Cal.App.4th at p. 417.)
The court in Pointe San Diego agreed with the reasoning of Davaloo: “If an
original complaint lacks facts sufficient to provide notice to the defendant of the essential
11
nature of the claim, it would defeat this policy to permit the plaintiff to remedy this error
by filing a new amended complaint beyond the limitations period. In Davaloo, State
Farm could not have known what facts it needed to gather and preserve during the one-
year limitations period. State Farm had no information about the insureds, their property,
the claimed damages, the nature of their bad faith claims, or any of the relevant conduct
or activities undertaken by State Farm.” (Pointe San Diego, supra, 195 Cal.App.4th at
pp. 280-281.) It distinguished Davaloo, noting that in its case, the original complaint
placed the law firm on notice of the identity of the plaintiffs and the nature of their
claims, referring to the specific litigation and alleging a failure to use due care in
handling the litigation. (Ibid.)
We find the case before us more akin to Davaloo than Pointe San Diego. Scholes’
original complaint fails to put Lambirth on notice of any cause of action against it. This
void prevents the amended complaint from relating back to the original complaint.
VI.
For the first time on appeal, Scholes argues the first cause of action for negligence
is for “damage to trees” under Civil Code section 3346 and section 733 and is subject to a
five-year statute of limitations. Civil Code section 3346, subdivision (a) states in
pertinent part: “For wrongful injuries to timber, trees, or underwood upon the land of
another, or removal thereof, the measure of damages is three times such sum as would
compensate for the actual detriment.” Civil Code section 3346, subdivision (c) states:
“Any action for the damages specified by subdivisions (a) and (b) of this section must be
commenced within five years from the date of trespass.” Therefore, Scholes contends,
since the fire took place on May 21 through May 30, 2007, he could file suit no later than
May 2012 and his November 10, 2011, complaint was timely filed.
However, we previously held that Civil Code section 3346, which authorizes
double damages for wrongful injuries to timber, trees or underwood, where the trespass
causing the injuries was casual or involuntary, did not apply to damage to property
12
resulting from fires negligently set. (Gould v. Madonna (1970) 5 Cal.App.3d 404, 406-
407 (Gould).)
In Gould a construction company negligently set and maintained fires on a
highway it was constructing. An uncontrolled fire burned extensive areas, including
timber, trees, and land of the plaintiff. After defendant’s liability was established, the
trial court refused to award double damages. We affirmed the judgment, holding Civil
Code section 3346, which authorizes double damages did not apply to fires negligently
set. (Gould, supra, 5 Cal.App.3d at pp. 405-407.)
Instead we found that Health and Safety Code sections 13007 and 13008, which
cover liability in relation to fires, applied. Section 13007 states: “Any person who
personally or through another willfully, negligently, or in violation of law, sets fire to,
allows fire to be set to, or allows fire kindled or attended by him to escape to, the
property of another, whether privately or publicly owned, is liable to the owner of such
property for any damages to the property caused by the fire.” Section 13008 states:
“Any person who allows any fire burning upon his property to escape to the property of
another, whether privately or publicly owned, without exercising due diligence to control
such fire, is liable to the owner of such property for the damages to the property caused
by the fire.”
In coming to this conclusion we considered the legislative history of Civil Code
section 3346 and Health and Safety Code sections 13007 and 13008. We concluded this
history demonstrated a legislative intention that only actual damages be recoverable for
injury caused by negligently set fires. “That history indicates that the Legislature has set
up a statutory scheme concerning timber fires completely separate from the scheme to
meet the situation of the cutting or other type of injury to timber.” (Gould, supra,
5 Cal.App.3d at p. 407.) We noted Civil Code section 3346 provides double damages, a
provision penal in nature. “There are no penal provisions in the section dealing with
fires. It would appear that if the Legislature intended a penalty in connection with injury
13
by fire, it would have placed it in the sections dealing with fires.” (Gould, at pp. 407-
408.)
Finally, we also distinguished the legislative purpose behind Civil Code section
3346: “The normal use of Civil Code section 3346 is in cases where timber has been cut
from another’s land, either with or without knowledge that the cutting was wrongful. It
has been suggested that the purpose of the statute is to educate blunderers (persons who
mistake location of boundary lines) and to discourage rogues (persons who ignore
boundary lines), to protect timber from being cut by others than the owner. [Citation.]
We have found no indication anywhere that anyone has considered that the double
damages provisions of section 3346 are applicable to fire damage caused by negligence.
. . . Section 3346 is irrelevant to the damage in this case.” (Gould, supra, 5 Cal.App.3d
at p. 408; see also McKay v. State of California (1992) 8 Cal.App.4th 937, 939.)
As Scholes points out, the court in Kelly v. CB & I Constructors, Inc. (2009)
179 Cal.App.4th 442 (Kelly) disagreed with our analysis in Gould and found that section
3346 does apply to fire damage to trees. (Id. at pp. 459-463.) Kelly determined the plain
language of the statute authorizing an award of double damages “ ‘[f]or wrongful injury
to . . . trees . . . upon the land of another, . . . where the trespass was casual or
involuntary’ ” includes damage from a negligently set brush fire. (Id. at p. 463.) Kelly
did not consider the legislative history or purposes behind the two sets of statutes. (Ibid.)
Despite Kelly’s disagreement with our analysis, Gould remains viable and controlling
here.3
VII.
Finally, Scholes must demonstrate both a reasonable probability that the third
amended complaint can be amended; and the manner in which it may be amended to cure
3 The federal district court adopted Kelly’s analysis in United States v. Sierra Pac.
Industries (E.D.Cal. 2012) 879 F.Supp.2d 1096.
14
the defect of failing to file the action within the applicable limitations period. (Hendy v.
Losse (1991) 54 Cal.3d 723, 742.) Scholes fails to demonstrate how his third amended
complaint could be amended to avoid the statute of limitations bar.
DISPOSITION
The judgment is affirmed. Lambirth shall recover costs on appeal.
RAYE , P. J.
We concur:
BLEASE , J.
ROBIE , J.
15
Filed 4/6/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Colusa)
----
VINCENT E. SCHOLES, C070770
Plaintiff and Appellant, (Super. Ct. No. CV23759 )
v. ORDER CERTIFYING
OPINION FOR
LAMBIRTH TRUCKING COMPANY, PUBLICATION
Defendant and Respondent. [NO CHANGE IN
JUDGMENT]
APPEAL from a judgment of the Superior Court of Colusa County, Jeffrey A.
Thompson, Judge. Affirmed.
Vincent E. Scholes, in pro. per., for Plaintiff and Appellant.
Anwyl, Scoffield & Steep, James T. Anwyl and Lynn A. Garcia for Defendant and
Respondent.
1
THE COURT:
The opinion in the above-entitled matter filed on March 7, 2017, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
BY THE COURT:
RAYE , P. J.
BLEASE , J.
ROBIE , J.
2
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209 Md. 321 (1956)
121 A.2d 192
THOMAS ET AL.
v.
HOPKINS ET AL, TRADING AS HOPKINS AND WAYSON
[No. 107, October Term, 1955.]
Court of Appeals of Maryland.
Decided March 13, 1956.
*323 The cause was argued before BRUNE, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
James G. Boss, with whom were Ernest N. Cory, Jr. and Cory & Boss on the brief, for appellants.
John W. Mitchell and George T. Burroughs for appellees.
HAMMOND, J., delivered the opinion of the Court.
The appellants moved to strike an enrolled judgment, based on a promissory note, for mistake, surprise, irregularity, deceit and fraud and the court refused the motion without hearing evidence, precipitating the appeal before us.
In January 1953, the plaintiffs below, the appellees here, sued on the promissory note signed by the appellants, William M. Thomas and Frances E. Wood, who later became Mrs. Thomas, in the Circuit Court for Anne Arundel County. The note was filed with the pleadings. The affidavit of the plaintiffs in support of a motion for summary judgment recited the execution of the note by the defendants, that there was then due and unpaid the face amount of the note, with interest from its date, and that there was no genuine dispute as to any material fact. Both defendants were summoned. William M. Thomas, individually and as agent for Frances E. Thomas, nee Wood, swore to an affidavit of defense setting forth that he had a good defense to the claim, in that there was due him by the plaintiffs some $16,000.00, representing unpaid real estate commissions, and that the sum claimed to be due on the note was to be deducted from these commissions. The affidavit did not otherwise contravert the correctness of the amount sued for nor claim that there had been payments or credits. General issue pleas were filed. A suggestion of removal, made in December 1953, was withdrawn, but in August 1954, the case was removed to the Circuit Court for Prince George's County on another suggestion of removal. In *324 Prince George's County the appellants were represented by the same experienced lawyer who had represented them in Anne Arundel County. At a hearing on November 19, 1954, Judge Gray granted summary judgment against Mrs. Thomas, but because of the set-off and counter claim in the affidavit of defense, granted leave to Mr. Thomas to file additional pleas if he so desired. When the case came on for trial a few days later, no additional pleas had been filed and in open court defendant's counsel announced that there would be no defense. The secretary of the plaintiffs testified to the exact amount due and unpaid and judgment was entered in open court against William M. Thomas. In March 1955, the motion to strike the judgment was filed by new counsel, who had been engaged by appellants. It alleged: (1) That the plaintiffs committed fraud and deceit against the defendants "by erasing credits towards payment of the note which is the basis of the claim, said credits having been entered on the back thereof in the total amount of $2,568.25" and by concealing the fact of the credits from the Court at the time of trial; (2) that the plaintiffs committed fraud and deceit against the defendants in that they willfully and deliberately withheld from the Court the information that the plaintiffs had agreed with the defendant, William M. Thomas, that amounts payable and to become payable to said defendant by the plaintiffs for real estate commissions would be set off against the amount of the note and that the commissions due totalled $22,000.00; (3) that the defendants were not informed when the trial was to be held and were not notified of the judgment against them until after it had become enrolled; (4) that the judgment in favor of the plaintiffs against the defendants was incorrect because it did not take into account "the aforesaid credits and set-offs to which the defendants were entitled."
Normally a court would hear evidence on a charge of fraud and deceit, specified as failing to give credit for payments made and the erasure of notations of the credits on the note which was the basis of the judgment. *325 We find, however, from a close examination of the record and from concessions made in the brief of the appellants and at the argument that the trial judge reached the right result in denying the motion to strike, despite his unusual refusal to hear the testimony the appellants desired to offer.
It is now conceded that the only defense relied on in the affidavit of defense and one of the two grounds of the motion to strike, has been lost completely to the appellants. After the motion to strike had been filed, Thomas' action for the $22,000.00 in commissions he claimed to be due him from the appellees came to trial in Montgomery County and judgment was rendered for the defendants as to all of the claims. However, it appeared from the evidence that appellees did owe Thomas $300.00 in another connection and Judge Anderson directed counsel for the appellees to give credit for this amount on the judgment, and this has been done. No appeal was taken from the Montgomery County judgment and it is settled now that the appellees do not owe Thomas anything for commissions.
There remains the matter of the alleged failure to allow credits due when the judgment before us was taken by appellees. An intense inspection of the back of the note shows, despite the evident fact of erasure, that there once was written there the following:
"Payments:
Commission 1675.95T
" 1/24/ 500.00
________
2175.95
10135.20
2175.
________
7959. 5"
There is nothing in the case to explain the reason for the erasure nor what the figures erased represented. There comes to mind immediately that the credits on the note may have been part of the commissions claimed by *326 Thomas in the Montgomery County case which, for some reason, probably the one which caused Thomas to lose the case, the appellees decided were not due as had been thought, or had been forfeited, and therefore erased from the note.
Whatever the explanation of the erasure, we think it does not now help the appellants. First, the two erased credits totalled $2,175.95. In the motion to strike, the credits alleged to have been on the note, and erased, are said to be $2,568.25. Before the lower court and before us, the credits claimed total $2,819.20. But before us it was conceded that the credits now claimed had never been entered on the note since it was filed with the papers in the suit in the Circuit Court for Anne Arundel County before they came into existence.
At the hearing below on the motion to strike, the appellants did not formally abandon the charges of fraud and deceit, but did rely actually only on surprise, mistake and irregularity. We think none of these appear. The appellants were duly summoned in 1953 in the Anne Arundel County suit. They filed pleas through counsel and one of them, on behalf of both, swore to an affidavit of defense. They were represented by their lawyer at the hearings before Judge Gray and Judge Marbury. Thomas was given the chance to make any additional defense open to him before judgment was taken against him, and did nothing. "If the appellant was summoned and had an opportunity to make his defense and neglected to do so, and judgment was regularly entered, he will not now be heard to say, after the term has passed, that it was obtained by mistake or surprise." Abell v. Simon, 49 Md. 318, 323. The appellants concede that the credits now claimed were known to them when the judgments were rendered. They assert, however, that they did not advise their counsel of the defenses they had, and that he did not advise them of the time of the hearings or of the judgment which followed, and that all of this adds up to irregularity entitling them to have the judgment stricken. If they did not give the facts to their lawyer, who represented *327 them in the matter from January 1953 to November 1954, at least, they have no one to blame but themselves and no ground for relief. Abell v. Simon, supra. In Smith v. Black, 51 Md. 247, 254, a lawyer was asked by the defendant in a suit on a note to serve with and assist counsel of record. At the call of the docket, he entered his appearance but did not inform his co-counsel or consuel with him. The case was unexpectedly and suddenly called for trial. The plaintiff was ready and the new counsel, who was present, was constrained to go to trial. He was ignorant of the facts on which a defense was to be made lack of consideration and of the plan to remove the case, and yielded judgment on formal proof by the plaintiff. This Court refused to strike the judgment after it had become enrolled. It was said that it was plain that the judgment "* * * was rendered against him through the defendant's own fault and negligence. He was in default in having made no preparation for the trial by the summoning of witnesses if he intended to have the case tried and not removed. He was in greater default in not communicating to Mr. Maulsby the defense upon which he intended to rely after having employed him to assist in the trial." Appellants do not hint, much less suggest, that their counsel was guilty of fraud or bad faith. This being so, his actions on their behalf were their actions. Whatever is done by an attorney of record in the progress of the cause is considered as done by, and binding upon, the client. Smith v. Black, supra; Margos v. Moroudas, 184 Md. 362, 371; Brooks v. Brooks, 184 Md. 419. The lawyer's knowledge of the hearings and the judgment rendered must be imputed to the appellants. Baltimore Luggage Co. v. Ligon, 208 Md. 406, 118 A.2d 665; Bond v. Citizens National Bank, 65 Md. 498. His failure to tell them of the hearings or of the judgment, if he did fail, would not constitute irregularity justifying the striking of the judgment.
The cases have reiterated time and again the rule that an enrolled judgment will not be set aside unless the moving party establishes by clear and convincing proof the *328 existence of fraud, deceit, surprise, mistake or irregularity and that he has a meritorious, bona fide and substantial defense on the merits. Adelburg v. Stryjewski, 200 Md. 347, 349; Kolker v. Gorn, 202 Md. 322, 325. Clearly the appellants have no defense to some $9,000.00 of the judgment and no right to have the judgment, as to so much, stricken. We find nothing in the offers of proof in the court below, nor before us, to give any indication that the appellants could establish by clear and convincing evidence either that they have a meritorious, bona fide and substantial defense on the merits as to the remaining $3,000.00 of the judgment, or that there is present any of the other elements necessary if an enrolled judgment is to be stricken.
Order affirmed, with costs.
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22 F.3d 1098
U.S.v.Robinson***
NO. 93-2092
United States Court of Appeals,Eleventh Circuit.
May 04, 1994
1
Appeal From: N.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
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FILED
NOT FOR PUBLICATION JUL 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVELYN MORALES, No. 12-35519
Plaintiff - Appellant, D.C. No. 3:11-cv-05381-RBL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 9, 2013
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.**
Evelyn Morales appeals the district court’s affirmance of the Administrative
Law Judge’s (ALJ) decision finding Morales was not disabled and was ineligible
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
for benefits. Morales contends the ALJ erred in: (1) failing to properly evaluate
the medical evidence; (2) failing to properly evaluate her testimony; (3) failing to
properly evaluate the statement of her husband, John Morales; (4) failing to
properly evaluate her residual functional capacity (RFC); and (5) basing his finding
at step five of the sequential evaluation process on a hypothetical to the vocational
expert that allegedly did not accurately reflect Morales’s limitations. We affirm.
“Our review is essentially the same as that undertaken by the district court.”
Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985). In both cases, the court
determines whether the ALJ’s decision can be supported by “substantial evidence.”
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence” is “more than a mere scintilla, but less than a
preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988) (internal quotation marks and citations omitted).
1. The ALJ properly evaluated the medical evidence. An ALJ may reject a
treating doctor’s uncontradicted opinion only after giving “clear and convincing
reasons supported by substantial evidence in the record.” Reddick v. Chater, 157
F.3d 715, 725 (9th Cir. 1998) (internal quotation marks and citation omitted).
Here, the ALJ did not reject the opinion of Morales’s treating physician. Morales’s
treating physician did not provide an opinion on Morales’s limitations. Thus, there
2
was no uncontradicted medical opinion in the record from Morales’s treating
physician. The ALJ: (1) acknowledged that Morales went to the New Heights
Clinic (where she saw her treating physician); and (2) reviewed all of Morales’s
medical records from the clinic (giving them equal weight unless he otherwise
specified). The ALJ found that these medical records supported Morales’s
diagnosis of depression and anxiety, along with a history of auditory
hallucinations. The ALJ did not and was not required to recite the medical records
in reviewing Morales’s medically determinable impairments. See Vincent v.
Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The ALJ need only explain why
“significant, probative evidence has been rejected,” and must explain why
uncontroverted medical evidence is rejected. Id. at 1395. Here, the record does
not reflect (and Morales does not specify) any objective significant probative
medical evidence that the ALJ failed to consider in making his determination.
The ALJ reviewed and considered Morales’s counseling and treatment
records from the Wellness Project. However, the ALJ rejected the letters written
on behalf of Morales by the Wellness Project’s employees. The ALJ improperly
rejected the letters co-written in part by Dr. Joseph. See Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995) (noting that “clear and convincing reasons are required to
reject the treating doctor’s ultimate conclusions”) . The error, however, was
3
harmless. While Dr. Joseph is an acceptable medical source, the letters still failed
to provide objective medical evidence of Morales’s limitations. Additionally, the
second letter by Dr. Joseph inexplicably lowered Morales’s Global Assessment of
Functioning (GAF) score by 15 points without explanation based upon the same
reported subjective symptoms.
The additional letters and treatment notes from the Wellness Project were
not from an “acceptable medical source,” and were properly rejected based on the
ALJ’s credibility determination regarding Morales’s limitations.
Finally, the ALJ’s determination was supported by substantial medical
evidence. The ALJ considered the testimony of all the state-appointed consultative
psychologists, giving Dr. Clifford’s, Dr. Eather’s, and Dr. Essing’s opinions
moderate weight, because they did not evaluate Morales’s entire medical record.
The ALJ gave significant weight to the opinion of Dr. Alvord, because it was the
most current opinion and based upon a longitudinal record. Dr. Alvord’s opinion
was largely consistent with the medical findings, but only differed with regard to
Morales’s limitations. Morales argues that the ALJ’s consideration of the state
appointed consultative psychologists was tainted by the ALJ’s failure to properly
evaluate the medical evidence from her treating doctors and the Wellness Project.
However, because the ALJ did not err in evaluating the medical evidence or
4
Morales’s testimony, the ALJ’s reliance on state-appointed psychologists was
proper.
2. This court reviews the claimant’s testimony of medical impairment under a
two-step process. First, “[t]he claimant must produce objective medical evidence
of an underlying impairment ‘which could reasonably be expected to produce the
pain or other symptoms alleged . . . .’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th
Cir. 1991) (quoting 42 U.S.C. § 423(d)(5)(A)). Second, assuming the claimant
produces such evidence and there is no affirmative evidence the claimant is
malingering, the Commissioner must provide “clear and convincing reasons” for
rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The
ALJ did not err in his treatment of Morales’s written statements or testimony,
because he gave clear and convincing reasons for disbelieving Morales’s testimony
about her level of functioning. Id. The ALJ stated that Morales’s claimed
limitations were inconsistent with the medical records and with her reported daily
activities. The ALJ specifically noted that described daily activities are not limited
to the degree one would expect from someone with Morales’s alleged limitations.
3. An ALJ may reject lay witness testimony “only if he gives reasons germane
to each witness whose testimony he rejects.” Smolen v. Chater, 80 F.3d 1273,
1288 (9th Cir. 1996). The ALJ did not err in his treatment of the written statement
5
of Morales’s husband. The ALJ gave Mr. Morales’s statement only moderate
weight because he found it to be fairly consistent with Morales’s reported level of
activity and functioning, which he found to be exaggerated.
4. Morales only challenges the RFC finding based on the ALJ’s failure to
properly evaluate the medical evidence and Morales’s testimony. In light of our
holding, the ALJ did not err in his RFC finding.
5. An ALJ may rely on a vocational expert’s testimony so long as the
hypothetical questions “set out all the limitations and restrictions of the particular
claimant . . . .” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989).
However, “the ALJ is ‘free to accept or reject these restrictions . . . as long as they
are supported by substantial evidence.’” Id. at 756–57 (quoting Martinez v.
Heckler, 807 F.2d 771, 774 (9th Cir. 1986) (alterations in original)). Here, the ALJ
did not err by failing to include all the limitations that Morales urged (based on her
subjective complaints) to be included in the hypothetical given to the vocational
expert, because the ALJ properly rejected those subjective claims.
AFFIRMED.
6
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117 F.3d 1433
Jonesv.H & R Block Tax Services
NO. 96-8969
United States Court of Appeals,Eleventh Circuit.
June 09, 1997
Appeal From: S.D.Ga. ,No.95002684CVWTM
1
Affirmed.
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12 So.3d 236 (2009)
CECIL
v.
STATE.
No. 5D08-3018.
District Court of Appeal of Florida, Fifth District.
June 23, 2009.
Decision without published opinion Affirmed.
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354 S.W.2d 688 (1962)
Freedom ARCHEY, Appellant,
v.
NEDERLANDSCH-AMERIKAANSCHE STOOMVAART MAATSCHAPPIJ (HOLLAND-AMERICA LINE), Appellee.
No. 7370.
Court of Civil Appeals of Texas, Texarkana.
February 13, 1962.
Rehearing Denied March 13, 1962.
*689 Mandell & Wright, Houston, for appellant.
Fulbright, Crooker, Freeman, Bates & Jaworski, Ed Bluestein, Jr., S. G. Kolius, Houston, for appellee.
CHADICK, Chief Justice.
This action for damages was brought by stevedore injured while storing cargo in a wharfed vessel. A take nothing judgment is affirmed.
The appellant, Freedom Archey, brought this suit as plaintiff against the Nederlandsch-Amerikaansche Stoomvaart Maatschappij (Holland-America Line) as defendant in a district court of Harris County, to recover damages for an injury received while working on board the S. S. Alblasserdyk, the defendant's vessel engaged in the transportation of cargo in interstate and foreign commerce. Archey was not an employee of the defendant, hereafter referred to as appellee or Holland-America Line, nor a member of the vessel's crew. Holland-America Line contracted with a firm named Port Arthur Stevedores to stow cargo on the vessel. In accordance with customary practice the stevedoring firm called upon the longshoremen's union for stevedores to load the vessel.
A longshoreman gang, including Archey, was dispatched to perform the work. Archey was employed and assigned with seven others to load steel drums filled with oil in the No. 2 hatch of the vessel. Hatch covers were removed and the ship's booms lowered the drums into the hatch. The drums were released from the boom slings and moved to the deck storage area in the ship's hold by the longshoremen. A drum would be rolled on the deck floor to a point near the place it was to be upended and stowed. At this point two men would raise the drum on its rim to a balanced position; one man would then maneuver it into place while the other returned for another drum. Raising the barrel from its side to stand on its end is called "heading" the drum by stevedores.
On the morning of September 19, 1956, before the stowing operation began, dunnage (planks of rough wood used as flooring) was laid on the steel deck floor. To properly serve its purpose dunnage must be in good condition, laid straight and smooth to make a secure footing for the stowed cargo as well as for the men working on it. One of the longshoremen laid some dunnage that he found in the hatch, and Archey with another of his fellow workers began stowing the drums.
After the elapse of some time while doing this work Archey and his work partner were heading a two to three hundred pound drum when Archey's partner released his hold on the drum to go back for another. The drum suddenly fell over as Archey attempted to maneuver it, jerking him downward and causing injury. Archey was hospitalized and treated.
Archey's pleading in the trial court alleged that the negligence of the ship line, the unseaworthiness of the vessel, or both, proximately caused his injuries. The jury answered special issues establishing the following facts: (1) Warped dunnage was used to floor the deck where Archey worked at the time of his injury; (2) the warped condition of the dunnage was not the proximate cause of Archey's injury; (3) Holland-America furnished unwarped dunnage for the storage deck floor; (6) the length of the dunnage furnished was sufficient for dunnage purposes; (8) Archey could, with *690 safety, work upon dunnage of the length furnished; (11) the deck flooring where Archey was working made the area an unsafe place to work at the time of his injury; (12) working on the unsafe floor was not the proximate cause of Archey's injury; (13) Archey did not exercise reasonable care to ascertain that the steel drum was in a position to be safely headed at the time of his injury; (14) the proximate cause of the accident in which Archey was injured was failure to use ordinary care to ascertain the steel drum he was stowing was in a position to be safely headed; (15) Archey removed his hands from the drum as soon as a person in the exercise of ordinary care would have done so; (17) Archey was not stowing a drum on warped dunnage at the time the accident occurred; (20) Archey failed to use ordinary care to procure other dunnage to be used in stowing the drums; (21) the failure to procure other dunnage was not the proximate cause of the accident; (22) the conduct of Archey was 50% the proximate cause of the accident. The jury answered all issues the court's instruction required to be answered. Only the numbers of the issues answered are indicated. A take nothing judgment was entered on the basis of the jury's answers.
The appellant's brief finds no fault with the submission of the negligence theory of the case or to jury answers to issues propounded thereunder. The attack on the judgment is directed to the submission of the action on the unseaworthiness theory. Briefed as error is the trial judge's action in refusing after timely written request to instruct the jury as follows:
"You are instructed that the applicable law imposes an absolute duty upon Defendant to furnish dunnage in the hatch where it was to be used that was reasonably suitable for the purpose of stowing the steel drums with safety. Defendant cannot delegate such duty to any stevedoring company nor can it contract such duty away to any other party."
The appellant's somewhat informal and unorthodox brief marshals in support of his complaint four general lines of argument. The condensed version that follows loses much of the intricate quality and power of the argument but space limitation prohibits more detail. In general outline the argument is that the requested instruction should have been given because:
(1) The substantive and procedural rights of the appellant must be determined by maritime tort law; and as a corollary, the procedural rules of state courts cannot be invoked to deprive the appellant of substantive rights and remedies accorded him by maritime tort law or any applicable Federal enactment.
(2) The definition of "proximate cause" given in the charge to the jury, to-wit,
"By the term `proximate cause' as used in this charge is meant a cause which in a natural and continued sequence produces an event and without which the event would not have occurred, and to be a proximate cause of an event it should have been reasonably anticipated and foreseen by a person of ordinary care and prudence in the exercise of ordinary care that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause,"
contained the language emphasized, thus, as a prerequisite to recovery under the seaworthiness theory, imposing more onerous conditions than the law prescribes absent the requested instruction.
(3) Admission of evidence that Holland-America Line contracted with the stevedoring firm to supply and lay dunnage was prejudicial, as admission thereof allowed the jury to reason or assume that duty in this respect shifted from the ship line to the stevedoring firm, in the absence of the requested instruction.
(4) The right of recovery under the doctrine of unseaworthiness was effectively *691 denied the appellant by refusal to give the requested instruction.
The first line of argument as a legal proposition requires but little discussion other than to mention that no rule of procedure associated alone with maritime tort actions or a Federal enactment involved in this case is claimed to have been violated. Both parties seem to be in agreement that as a general statement of law applicable to cases of this nature the argument is correct. Such case as Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272; Arnold v. Panhandle & Santa Fe Railway Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889 and Givens v. Missouri-Kansas-Texas R. Co., of Texas, 5 Cir., 195 F.2d 225, are among those cited by the appellant. By this concession it is not to be understood that because Archey's actionable rights are to be so measured the requested instruction was necessary to protect them.
To reverse the judgment on such ground, Archey must show that assertion of some substantive or procedural right was not allowed in the State court. In this connection the record shows Archey chose the State court as the forum for the trial of his claim. When he made such choice he subjected himself to the State courts' practice insofar as it did not deprive him of rights or remedies accorded by maritime tort law or some Federal enactment. The principle is stated in a Jones Act Case (46 U.S.C.A. § 688), Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, where it is said:
"* * * By the institution of his suit petitioner invoked the jurisdiction of the state courts and the suit should be tried as any other suit for damages for negligence is tried in the state courts, provided there is compliance with the specific requirements of the Federal Statutes, that is to say, that assumed risk and negligence of fellow servants are not to be defenses and contributory negligence not a complete defense, and that the injured seaman or employee is entitled to trial by jury."
See also: Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292; 240 S.W.2d 751.
The second line of argument reflects no error when considered in the light of the record. It has previously been noticed that Archey plead an action based in part on Holland-America Line's negligence as the proximate cause of his injury. To sustain this theory the burden was on Archey to prove the ship line's negligence was the proximate cause of his injury. His brief makes no suggestion that proximate cause was not a fact issue, nor that the submission of a special issue thereon was not required by the proof in the case and a necessary and appropriate issue to be submitted. As the record stands, a special issue on proximate cause was pertinent under the pleadings and proof, and the explanatory instruction defining the term was proper insofar as the negligence theory of Archey's case was concerned. Nevertheless, Archey's contention is that because of the explanatory instruction, the jury "* * * had to consider and determine whether the defendant [Holland-America Lines] as a person of ordinary care could have reasonably foreseen that the event [mishap] or some similar event would occur as a natural consequence of the kind of dunnage the contracting stevedores might use. * * * [and] was compelled to consider the elements of notice, foreseeability and exercise of due care when answering" the issues of proximate cause as the issues affected his right to recover under the doctrine of unseaworthiness.
The vice of the definition of proximate cause, so his argument runs, would have been removed by instructing the jury that Holland-America Lines had an absolute non-delegable duty to furnish dunnage in the hatch where it was to be used, reasonably suitable for the purpose of stowing the steel drums with safety. The point of *692 the argument being that the jury with knowledge of the Holland-America Line's duty would not have been misled by improper elements of the proximate cause definition, and certain evidence yet to be discussed, and led to assume that Holland-America Lines discharged its duty and responsibility when it contracted with Port Arthur stevedores to stow the drums. Presumably, the argument charges, the jury could and would have, but for the proximate cause definition and the evidence alluded to, disregarded and overridden the instruction on proximate cause, or at least the objectionable elements of it, and applied the law of the requested instruction.
If the definition of proximate cause as given by the court contains elements incompatible with the requested instruction, or if Archey was not required to prove the warped condition of the dunnage (special issue 2) or the unsafe floor (special issue 12) was the proximate cause of his injury as a pre-requisite to recovery under the doctrine of unseaworthiness, (it is unnecessary to decide either proposition under the record presented), the procedure Archey advocates would permit the jury to choose the law it would follow in making a determination of the facts. Allowing the jury such latitude would conflict with and infringe upon the trial judge's duty to instruct the jury as to the law governing it in the performance of its fact finding function and the jury's duty to be guided by such instruction. Obviously, such procedure is contrary to the established practice in Texas. A purpose of special issues is to eliminate the need for instruction upon the law.
Archey could have had the benefit of every right afforded him by the unseaworthiness doctrine by following the rules of practice. These rules allow him time to call the trial judge's attention to errors or deficiencies in the charge. Rule 272, Vernon's Ann.Civ.St. He was authorized by Rule 273 to request such issues, instructions, explanations and definitions deemed controlling or appropriate to his case. But failure to timely object to the definition of proximate cause or make any request for a definition in other or different form constitutes a waiver of error in it on appeal. A. A. A. Air Conditioning & Mfg. Corporation of Texas v. Barr, Tex.Civ.App., 186 S.W.2d 825, wr. ref.; Punch v. Gerlach, 153 Tex. 39, 263 S.W.2d 770; Hicks v. Fredericks, Tex.Civ.App., 286 S.W.2d 315, n. w. h.; Bell v. Missouri-Kansas-Texas Railroad Company of Texas, Tex.Civ. App., 334 S.W.2d 513, n. r. e.; Rule 274. A party's voluntary relinquishment of a right is not the equivalent of a disallowance of it by the court.
Rule 277 authorizes explanations and instructions in the nature of a general charge when necessary to enable a jury to pass upon and render a verdict upon the issues. Instruction in the nature of a general charge is exceptional, and as indicated is to be given only when the necessity therefor exists. Boaz v. White's Auto Stores, 141 Tex. 366, 172 S.W.2d 481. How knowledge of the legal obligation of Holland-America Line's non-delegable duty to furnish suitable dunnage would have aided the jury in determining from the facts before it that the dunnage used was or was not a proximate cause of Archey's injury is not apparent. See Bell v. Missouri-Kansas-Texas Railroad Company of Texas, Tex.Civ.App., 334 S.W.2d 513, N.R.E.; Texas Bus Lines v. Whatley, Tex.Civ.App., 210 S.W.2d 626, N.R.E.; Mosby v. Texas & Pacific Ry. Co., Tex.Civ.App., 191 S.W. 2d 55, N.W.H.; Tripp v. Watson, Tex.Civ. App., 235 S.W.2d 677, N.R.E. Refusal of the requested instruction was not error.
The third line of argument does not sustain Archey's assertion of error for basically similar reasons as those just discussed. The appellant did not object to the testimony, or request its withdrawal from the jury or its limitation to particular purposes, or otherwise timely move to prevent its improper admission or use. Instead, after its admission he asked for an instruction *693 embodying the law as to Holland-America Line's duty to furnish suitable dunnage. That the jury might have been influenced by the requested instruction in evaluating the evidence before it is purely a matter of conjecture. Intrinsically, knowledge of the legal duty of the ship line would not aid in determining whether the dunnage used or the unsafe floor was or was not the proximate cause of the mishap, or that the ship line did or did not supply dunnage that was not warped (Special Issue 3). If the evidence was inadmissible, objection should have been made, and if overruled assigned as error and the point presented here for review, Rules 324, 374, and 418. Giving the requested instruction was not a substitute for following the rules.
The fourth line of argument is largely a re-assertion of the preceding three. No error is shown. In addition to what has previously been said the records show that issues of fact were submitted by the trial court which, if found to exist by the jury, would support a verdict for appellant under the doctrine of unseaworthiness. The form of issues submitted did not by implication or otherwise relieve Holland-America Lines from any duty imposed on it by the doctrine. The jury was simply asked to find facts and did so. As the appellant's theory is understood, he concedes that he was obligated to prove the unseaworthy condition of the vessel was the proximate cause of his injury as a prerequisite to recovery. So understanding it may be said that had the jury answered special issues 2 and 12 in the affirmative, rather than in the negative the jury findings would have supported a judgment for Archey. Under his own theory of the case on appeal the submission of issues pertaining to unseaworthiness in the trial court was adequate and his real complaint is to their form. As shown, he waived his complaint.
No reversible error being shown, it becomes the duty of this court to affirm the judgment of the trial court and it is so ordered.
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122 F.3d 48
326 U.S.App.D.C. 310
UNITED STATES of America, Appellee,v.Mark Dennard HOYLE, a/k/a Slim, a/k/a Markie, Appellant.
Nos. 95-3157 to 95-3160.
United States Court of Appeals,District of Columbia Circuit.
Argued April 23, 1997.Decided Sept. 12, 1997.Rehearing Denied Nov. 28, 1997.
Appeals from the United States District Court for the District of Columbia (Nos. 92cr0284-01, 92cr0284-02, 92cr0284-03 & 92cr0284-08).
Jensen E. Barber, Washington, DC, Vincent A. Jankoski, William J. Garber, and John J. Carney, all appointed by the court, argued the causes and filed the joint briefs for Appellant.
Andrew C. Phelan, Assistant U.S. Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney at the time the brief was filed, Washington, DC, John R. Fisher, Thomas C. Black, Washington, [326 U.S.App.D.C. 311] DC, Gregg A. Maisel, Rachel Adelman-Pierson, and Lynn C. Leibovitz, Assistant U.S. Attorneys, Washington, DC, were on the brief. Elizabeth Trosman, Assistant U.S. Attorney, Washington, DC, entered an appearance.
Before: SILBERMAN, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Circuit Judge HENDERSON.
SILBERMAN, Circuit Judge:
1
Appellants were convicted of participating in a RICO conspiracy and engaging in a continuing criminal enterprise (CCE). They contend that the imposition of cumulative sentences for these two offenses violates the Fifth Amendment's prohibition against double jeopardy. We affirm appellants' convictions.
I.
2
Appellants are members of the so-called Newton Street Crew. They were found guilty after a five-month trial of a variety of offenses, including unlawful use of firearms, robbery, and murder relating to a conspiracy to distribute crack cocaine in the District of Columbia and Maryland. All four were shown to have been heavily involved in the organization's distribution of crack cocaine and use of violence, both to enforce organizational discipline and to eliminate competitors. Three of the four, Goldston, Hoyle, and McCollough, were further shown to have been leaders in the organization. They were each given multiple life sentences and assorted other prison terms. Although appellants raise numerous contentions on appeal, we think only one of these merits discussion.1 Hoyle, McCollough, and Goldston contend that it was an error of law for the district court to impose separate life sentences for violation of 18 U.S.C. § 1962(d) (1994) (RICO conspiracy) and 21 U.S.C. § 848 (1994) (CCE).2 They argue that RICO conspiracy is a lesser included offense of CCE, and, thus, the imposition of cumulative sentences for these two crimes violates the Fifth Amendment's prohibition against double jeopardy.
II.
3
Although the Double Jeopardy Clause literally protects against successive prosecutions for the same offense, it has been interpreted as also precluding multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Under certain circumstances nominally separate offenses could be thought the same offense--thus implicating the clause. It is a matter of legislative intent. If the legislature intends that the two offenses be treated as the same offense, the Double Jeopardy Clause applies. If the legislature intends that the two offenses be distinct, it does not. When a defendant is charged with two offenses, the "Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).
4
In determining legislative, in this case congressional, intent, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), directs that we break down the elements of the two crimes and determine "whether each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182. If crime "A" has [326 U.S.App.D.C. 312] all the elements of crime "B"--even though "A" has additional ones that "B" does not--then "B" would be a lesser included offense within "A" and a defendant could not be charged with violation of "B" as well as "A" unless the legislature clearly indicated otherwise. United States v. Baker, 63 F.3d 1478, 1494 (9th Cir.1995), cert. denied, 516 U.S. 1097, 116 S.Ct. 824, 133 L.Ed.2d 767 (1996).
5
Applying the Blockburger rule to determine whether RICO conspiracy is a lesser included offense incorporated within CCE, we observe that in order to make out a CCE violation the government must show that the defendant committed:"1) a felony violation of the federal narcotics law; 2) as part of a continuing series of violations; 3) in concert with five or more persons; 4) for whom the defendant is an organizer or supervisor; 5) from which he derives substantial income or resources." United States v. Grayson, 795 F.2d 278, 283-84 (3d Cir.1986). A "continuing series of violations" is defined as "at least three related felony narcotics violations, including the one charged." United States v. Hall, 93 F.3d 126, 129(4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1087, 137 L.Ed.2d 220 (1997).
6
A RICO conspiracy charge, on the other hand, requires proof that the defendant agreed to further a substantive RICO violation. That obliges the government to show "(1) the existence of an enterprise which affects interstate or foreign commerce; (2) that the defendant 'associated with' the enterprise; (3) that the defendant participated in the conduct of the enterprise's affairs; and, (4) that the participation was through a pattern of racketeering activity, i.e., by committing at least two acts of racketeering activity as defined by 18 U.S.C. § 1961(1)." United States v. Phillips, 664 F.2d 971, 1011 (5th Cir.1981).3
7
CCE's requirement that the defendant have organized or supervised five or more persons is not matched by any of the RICO conspiracy elements, but the question before us is not whether the offenses are identical--only whether if a CCE violation is shown, a RICO conspiracy is also necessarily made out. The government contends that the one element of RICO not subsumed within CCE is the requirement of a showing of a criminal enterprise. Such an enterprise is proved both by evidence of an ongoing organization and by evidence that the "associates are bound together ... so that they function as a continuing unit." United States v. Perholtz, 842 F.2d 343, 362 (D.C.Cir.1988); see United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981). Appellants assert that such an organization and constancy of personnel are necessarily implied by CCE's requirement that the government prove a continuing series of violations, in concert with five or more persons, for whom the defendant is an organizer or supervisor.
8
Seven of our sister circuits have accepted the government's position, that a CCE violation does not require proof of the existence of a RICO enterprise. United States v. Bennett, 44 F.3d 1364, 1375 (8th Cir.), cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995); United States v. Muhammad, 824 F.2d 214, 218 (2d Cir.1987); Grayson, 795 F.2d at 286; United States v. Ryland, 806 F.2d 941, 943 (9th Cir.1986); United States v. Love, 767 F.2d 1052, 1061 n. 13 (4th Cir.1985); United States v. Sinito, 723 F.2d 1250, 1262 (6th Cir.1983); Phillips, 664 F.2d at 1014.
9
Although appellants are facing overwhelmingly negative case law on this exact issue, the Seventh Circuit--breaking with other circuits on the related question of whether a CCE violation is made out if the defendant supervised five subordinates on successive [326 U.S.App.D.C. 313] occasions even if no two were operating under the defendant's direction at the same time4--has reasoned in a fashion that lends support to appellants' claim. In United States v. Bond, 847 F.2d 1233, 1237 (7th Cir.1988), the Seventh Circuit said that the CCE statute, designed to reach the so-called kingpins of the drug trade, United States v. Johnson, 575 F.2d 1347, 1358 (5th Cir.1978), was "aim[ed] at criminal organizations." Therefore, although it would not be necessary to show that the defendant supervised the same five persons through a continuous series of crimes, it would not suffice if "[a] small timer had one servant in January, a second in February, a third in March and so on." Bond, 847 F.2d at 1237. Judge Posner, dissenting in United States v. Bafia, 949 F.2d 1465 (7th Cir.1991), setting forth his understanding of the logic of Bond, thought that although simultaneous supervision of the same five subordinates was not required, the organization must have at least five "slots"--which does imply a continuous framework. Id. at 1481.5 To be sure, the Seventh Circuit has not even suggested that such a concept is equivalent to a RICO enterprise, but that proposition might be thought a logical extension.
10
We think that the Seventh Circuit has a powerful position in contending that CCE does not cover the periodic employment by a drug dealer of a single rotating runner. Even if that is so, however, we do not believe that the government must show, under CCE, the structure of a continuing organization equivalent to a RICO "enterprise." The statute does refer to the defendant as an organizer or supervisor but one can organize events and supervise transitory subordinates without creating an organizational structure. And although the phrase "continuing series" certainly connotes related events, see Hall, 93 F.3d at 129, those events can be related by virtue of a defendant's specific modus operandi, even in the absence of the use of common subordinates.6 Take as an example a drug dealer who, perhaps for security reasons, recruits a different group of distributors, picked rather at random in areas where such persons might be found. If he should do so on three separate days in a single month, on each occasion recruiting and temporarily organizing more than five runners with no overlap of personnel, this could be thought a "continuing series" of violations in concert with five or more persons for whom the defendant is the organizer or supervisor. But no actual organization or structure is formed; it is only inchoate.7 In order to form an actual organization equating to RICO's "enterprise," there would have to be a certain core of constant personnel. Therefore, even if it is possible to describe a shadow structure complete with slots only in the defendant's mind as a CCE "organization," that seems too tenuous a concept to apply to RICO, which--it will be recalled--requires "associates bound together ... [in] ... a continuing unit."
11
The difference in the required evidence is explicable in light of the somewhat different objectives of the two statutes; CCE is aimed at the organizer more than the organization, whereas RICO is directed at the organization. See Phillips, 664 F.2d at 1013 n. 62 ("[CCE] focuses on the organizers of narcotics operations while RICO focuses on all direct and indirect participants in the organized criminal enterprise.").
12
* * * *
13
Therefore, we reject appellants' argument that their CCE and RICO convictions may not coexist.
14
[326 U.S.App.D.C. 314] KAREN LeCRAFT HENDERSON, Circuit Judge, concurring:
15
While I fully concur in the result, I believe it is not necessary, and unwise, to opine on the simultaneity issue. As the opinion acknowledges, even if a CCE required simultaneous management of at least five subordinates, a RICO conspiracy charge would nonetheless not constitute a lesser included offense of the CCE charge. Majority Op. at 51.
1
We reject with one exception all of appellants' other challenges. Hoyle, McCullough, and Goldston argue that the separate sentences imposed for their 21 U.S.C. § 846 (1994) (conspiracy to distribute cocaine) and 21 U.S.C. § 848 (1994) (CCE) convictions are cumulative and violate the Fifth Amendment's Double Jeopardy Clause. The government concedes appellants' argument in light of the Supreme Court's recent holding in Rutledge v. United States, 517 U.S. 860, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). Accordingly, we vacate Hoyle's, McCullough's, and Goldston's § 846 drug conspiracy convictions along with the attendant $50 special assessments
2
This challenge does not apply to appellant Harris because he was not charged with a CCE offense
3
The Supreme Court has held that "[i]n order to 'participate, directly or indirectly, in the conduct of [a RICO] enterprise's affairs,' one must have some part in directing those affairs." Reves v. Ernst & Young, 507 U.S. 170, 179, 113 S.Ct. 1163, 1170, 122 L.Ed.2d 525 (1993). We have yet to decide whether the Reves "operation or management" test also applies to RICO conspiracy, see United States v. Thomas, 114 F.3d 228, 242 (D.C.Cir.1997), but the resolution of that question is not relevant to the disposition of this case. Even if we were to apply the "operation or management test" to a RICO conspiracy charge, the CCE statute contains an analogous requirement in its supervision prong
4
Compare Phillips, 664 F.2d at 1010 (holding that the government need only prove that the defendant supervised at least five other persons and "such relationships need not have existed at the same moment of time ....") and Muhammad, 824 F.2d at 218, with United States v. Bond, 847 F.2d 1233, 1237 (7th Cir.1988)
5
The majority opinion does not really deal with Judge Posner's analysis
6
If we did interpret the statute as requiring common subordinates, we then would be faced with the question of how much overlap was necessary
7
Judge Posner spoke of a "table of organization that, however informal, has at least five spaces on it." Bafia, 949 F.2d at 1481. That logic could suggest that even an organizational structure in the defendant's mind would suffice for CCE purposes, but that still would not necessarily amount to an enterprise under RICO
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726 S.E.2d 181 (2012)
STATE of North Carolina
v.
Victor Jerome WADE and Roderick Jermaine Young.
No. 357P11.
Supreme Court of North Carolina.
June 13, 2012.
Kevin P. Bradley, Durham, for Young, Roderick Jermaine.
Dahr Joseph Tanoury, Assistant Attorney General, for State of N.C.
Daniel F. Read, Durham, for Wade, Victor Jerome.
Rick Shaffer, District Attorney, for State of N.C.
ORDER
Upon consideration of the petition filed on the 23rd of August 2011 by Defendant (Roderick Jermaine Young) in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 13th of June 2012."
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114 A.2d 661 (1955)
In the Matter of the Last WILL and Testament of Elizabeth Veronica DOUGHERTY, Deceased.
Orphans' Court of Delaware, New Castle.
June 6, 1955.
Stewart Lynch (of Hastings, Lynch & Taylor), Wilmington, for Catherine Rita Maloney, proponent of the will.
John Merwin Bader, Wilmington, for Ruth M. Connor, contestant of the will.
HERRMANN, Judge.
This appeal arises from a proceeding before the Register of Wills in which Ruth M. Connor petitioned for review of the probate of the will of Elizabeth Veronica Dougherty. After the contestant posted the cost bond required by 12 Del.C. § 1310[1]*662 and after a hearing in which the executrix of the will was proponent, the Register of Wills found that the contestant "failed to make out a prima facie case" and the petition for review was dismissed.
The proponent then petitioned the Register to tax her counsel fees against the contestant, as part of the costs of the proceeding, and to hold the contestant's cost bond chargeable for the payment of such fees. The Register denied that application and the proponent appeals.
The question for decision is this: May the word "costs", as it is used in 12 Del.C. § 1310 and 10 Del.C. § 5106[2], be construed to include the proponent's counsel fees?
As a general rule, in the absence of statute or contract, a litigant must pay his own counsel fees. In re Equitable Trust Co., Del.Ch., 30 A.2d 271; Maurer v. International Re Insurance Corp., Del., 95 A.2d 827. It is settled that a court may not order the payment of attorneys' fees as a part of the costs to be paid by the losing party unless the payment of such fees is specifically authorized by statute or contract. See Great American Indemnity Co. v. State, 32 Del.Ch. 562, 88 A.2d 426. In its common usage and according to its usual and ordinary meaning in this jurisdiction, the word "costs" does not include counsel fees of the successful litigant. See 10 Del. C.Ch. 51 "Costs"; Peyton v. William C. Peyton Corporation, 23 Del.Ch. 365, 8 A.2d 89; Muhleman & Kayhoe, Inc., v. Brown, 4 Terry 481, 50 A.2d 92; J. J. White, Inc., v. Metropolitan Merchandise Mart, Del. Super., 107 A.2d 892.
The proponent contends, however, that legal fees and expenses have been considered by the court as costs in certain will contest cases and that, since the Legislature is presumed to have been aware of such practice when it enacted 12 Del.C. § 1310, the word "costs" as used in that Statute must be read to include the proponent's counsel fees. The proponent cites In re Warrington's Will, 2 Boyce 595, 81 A. 501; Rodney v. Burton, 4 Boyce 171, 86 A. 826; In re Gordon's Will, 1 W.W.Harr. 108, 111 A. 610; Conner v. Brown, 9 W.W.Harr. 529, 3 A.2d 64.
The proponent's argument is unacceptable for several reasons. It is sufficient to state that the cited cases do not support the proponent's contention. In those cases, the Court dealt with the question of the propriety of an allowance of legal fees and expenses to an unsuccessful contestant as a charge against the estate. Compare Di Iorio v. Cantone, 49 R.I. 452, 144 A. 148. The cited cases did not involve the taxing of proponent's counsel fees as costs against an unsuccessful contestant. While the word "costs" appears in certain of the cited cases, it is not used in the sense urged by the proponent.[3] The word is used in those cases in the sense of a proper "cost" of, or charge against, the estate and not in the sense of a taxable "cost" against a losing contestant. Indeed, if the cited cases stand for the proposition that the Register may tax the proponent's counsel fees as costs against an unsuccessful contestant, those cases would seem to be in irreconcilable conflict with the recent statement of the Supreme Court in Great American Indemnity Co. v. State, supra.
Since, by common usage and ordinary meaning, the word "costs" does not include counsel fees of a successful litigant and since there appears to be no acceptable reason for according to the word any meaning broader than that ordinarily given it, it is held that the word "costs", as used in 12 Del.C. § 1310 and 10 Del.C. § 5106, may *663 not be construed to include counsel fees of the proponent.
In the absence of specific statutory authority, the Register of Wills does not have the power to order the payment of the proponent's attorneys' fees as part of the costs to be paid by the losing contestant.
Accordingly, no error is found in the order of the Register of Wills and it will be affirmed.
NOTES
[1] 12 Del.C. § 1310 provides, in part, as follows:
"(a) Any person interested who shall not voluntarily appear at the time of taking the proof of a will, * * * shall at any time within one year after such proof have a right of review which shall on his petition be ordered by the Register; but unless the petitioner or petitioners shall, within ten days after such review shall have been ordered by the Register, give bond to the State, jointly, and severally if more than one petitioner, with such sureties and in such penal sum not less than $500 and not more than $5,000 as the Register determines, conditioned for the payment of any and all costs occasioned by such review which may be decreed against such petitioner, or petitioners, such petition shall be considered as abandoned and shall be dismissed and proceedings may be had in all respects as though no such review had been ordered. * * *
"(b) The Register may determine the costs occasioned by such review and decree the payment of such costs by the petitioner or petitioners."
[2] 10 Del.C. § 5106 provides as follows:
"The Court of Chancery, the Orphans' Court, and the Register's Court shall make such order concerning costs in every case as is agreeable to equity."
[3] It is noteworthy that in the most recent of the cited cases, Conner v. Brown, supra [9 W.W.Harr. 529, 3 A.2d 73], the Court carefully distinguished "costs, counsel fees, and expenses of counsel".
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446 F.2d 46
Richard James ROGERS, Plaintiff-Appellant,v.WHITE TRUCKS, a division of White Motor Corporation,Birmingham, Alabama, Defendant-Appellee.No. 71-1559 Summary Calendar.**Rule 18, 5 Cir.: see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409.
United States Court of Appeals, Fifth Circuit.
Aug. 13, 1971, Rehearing Denied Sept. 28, 1971.
Orzell Billingsley, Jr., Birmingham, Ala., Nathaniel Jones, William Wills, New York City, for plaintiff-appellant.
C. A. Powell, III, C. John Holditch, Birmingham, Ala., for defendant-appellee; Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel.
Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.
PER CURIAM:
Affirmed.1 See Local Rule 21.2
1
Hyler v. Reynolds Metal Co., 5 Cir., 1970, 434 F.2d 1064
2
See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966
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130 F.3d 444
U.S.v.Coleman***
NO. 97-2003
United States Court of Appeals,Eleventh Circuit.
Oct 27, 1997
Appeal From: M.D.Fla. ,No.9600138CRT23E
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
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575 F.Supp. 1 (1982)
Arthur J. LARSON, pro se, Plaintiff,
v.
Lawrence MULCRONE, Max Fritschel and Donald Shiflet, Defendants.
No. 81 C 4197.
United States District Court, N.D. Illinois, E.D.
April 1, 1982.
*2 Arthur J. Larson, Joliet, Ill., for plaintiff.
Stephen Kehoe, Asst. Atty. Gen., Chicago, Ill., for defendants.
MEMORANDUM OPINION AND ORDER
ASPEN, District Judge:
Plaintiff Arthur J. Larson brings this pro se action pursuant to 42 U.S.C. § 1983 asserting the jurisdiction of the Court under 28 U.S.C. § 1343(3). Alleging violations of his federal constitutional rights, he seeks declaratory, injunctive, and monetary relief from defendants Lawrence Mulcrone, investigating agent for the Illinois Department of Law Enforcement ("IDLE"); Max Fritschel, deputy director of the IDLE; and Donald Shiflet, a retired correctional captain at the Stateville Correctional Center. Before the Court is the motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure of defendant Mulcrone, the only defendant to be served.[1] For the reasons that follow, the motion is granted.
Plaintiff currently is a prisoner at Stateville serving a sentence of fifteen to twenty years on an armed robbery conviction. The complaint in this action stems from a letter which Fritschel sent to prison officials for placement in plaintiff's institutional file. The purpose of the letter was to inform prison and parole board officials that plaintiff had made threats against an IDLE agent and his family just prior to his sentencing. Plaintiff alleges that the information contained in the letter is false and that Shiflet arbitrarily used it to increase his security classification. Plaintiff further alleges that Mulcrone was the source of the false information. Plaintiff contested the accuracy of the information through the prison grievance procedure without success.
Plaintiff's claim against Mulcrone is premised solely on the allegation that Mulcrone was the source of the allegedly false accusations disseminated by Fritschel. The parties agree that after Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), Mulcrone cannot be held liable under section 1983 for any injury to plaintiff's reputation. Plaintiff contends, however, that under state law he had an entitlement interest in his security classification that required the protection of the due process clause. He further contends that defendants violated his right to due process by increasing his security classification without first affording him a hearing to contest the information provided by Fritschel.
Not every injury in which a state official has played some part is actionable under section 1983. Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980). To establish liability, plaintiff must allege and prove that the official's conduct "caused" a deprivation of his federal constitutional rights. Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693, 61 L.Ed.2d 433 (1979). Even with the liberal construction accorded pro se pleadings under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the complaint fails to causally connect Mulcrone to the alleged infringement of plaintiff's due process rights.
Plaintiff's claim of constitutional injury is based on the arbitrary manner by which Shiflet reclassified him. Mulcrone, however, is not alleged to have had any authority over the procedures for making classification decisions at Stateville. The only connection alleged between Mulcrone and the reclassification of plaintiff is Shiflet's reliance upon information which purportedly originated with Mulcrone. Given that Mulcrone did not personally communicate any information to Shiflet, the link between Mulcrone's allegedly tortious accusations and Shiflet's failure to provide plaintiff with a hearing prior to increasing *3 his security classification is too attenuated to establish liability against Mulcrone. See Margoles v. Tormey, 643 F.2d 1292, 1299 (7th Cir.), cert. denied, 452 U.S. 939, 101 S.Ct. 3082, 69 L.Ed.2d 954 (1981); Bonner v. Coughlin, 545 F.2d 565, 567 (7th Cir. 1976) (en banc).
Our inquiry is not concluded with the finding that the complaint fails to state a claim for relief against Mulcrone. In two recent cases, the Seventh Circuit cautioned against premature dismissal of pro se actions in which a failure to acquire service over defendants against whom the complaint may state a potentially viable claim for relief is attributable to the plaintiff's lack of legal training. Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981); Maclin v. Paulson, 627 F.2d 83 (7th Cir.1980). Plaintiff's due process claim against the remaining defendants, Shiflet and Fritschel, turns upon his contention that under state law he has a protectible "liberty" interest in his prison security classification. This issue is fully addressed in the briefs before the Court. Therefore, before taking any measures to assist plaintiff in obtaining service over Shiflet and Fritschel, the Court will determine whether plaintiff's claim for relief against them is cognizable under section 1983.
It is well settled that an inmate has no constitutional right to a particular classification status. Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976); Solomon v. Benson, 563 F.2d 339, 342 (7th Cir.1977). Thus, any liberty interest that plaintiff may have in his prison security classification must be accorded to him by state statute or official policy. See Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir.1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979). Plaintiff argues that Ill.Rev.Stat.1979, ch. 38, § 1001-1-2(c) and Illinois Department of Corrections Administrative Regulation 802 ("A.R. 802") create the necessary entitlement to provide the predicate necessary to trigger due process protections.
Ill.Rev.Stat.1979, ch. 38, § 1001-1-2 sets out the general purposes of the Illinois Code of Corrections. The specific statutory subsection cited by plaintiff describes one of those purposes as the prevention of "arbitrary or oppressive treatment of persons adjudicated offenders and delinquents." A general policy statement such as this, however, clearly does not give rise to a protectible "liberty" interest of entitlement. See Arsberry v. Sielaff, 586 F.2d 37, 48 (7th Cir.1978). To create an entitlement, the state law or regulation must confer upon the prisoner a reasonable expectation that he will not be deprived of some tangible benefit in the absence of certain specified events. See Meachum v. Fano, 427 U.S. 215, 226-27, 96 S.Ct. 2532, 2539-40, 49 L.Ed.2d 451 (1976).
Plaintiff further contends that A.R. 802 confers upon him an entitlement interest in his prison security classification. A.R. 802, which governs Institutional Assignment Committees, essentially sets forth procedures for assigning and reassigning inmates to work, training, and study programs. The only provision of the regulation that directly relates to security classifications is A.R. 802(II)(F) which provides:
The Assignment Committee shall also be responsible for assigning, reviewing, and changing the security classification of residents, as necessary.
It is apparent from the "as necessary" clause of this provision that the Assignment Committee has complete discretion over security classification decisions. Since A.R. 802 does not create a justifiable expectation that an inmate will receive or retain any particular security classification, it does not give rise to a constitutionally protected entitlement. See Arsberry, supra, 586 F.2d at 46.
Plaintiff argues finally that A.R. 802 creates an entitlement because it delineates particular procedures that must be followed in making and changing assignments. In Chavis v. Rowe, 643 F.2d 1281 (7th Cir.), cert. denied, 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981), the Seventh Circuit held that a regulation which establishes procedures for the exercise of discretion, without setting limitations on the range of discretion, does not create an *4 entitlement sufficient to invoke due process safeguards. Id. at 1290. Thus, there is no merit to plaintiff's argument that assignment procedures in themselves confer an interest of entitlement in prison security classifications.
Because plaintiff's interest in his prison security classification is not one which is subject to due process protections, Shiflet's unilateral decision to use the allegedly false information provided by Fritschel as a basis for changing plaintiff's security classification is not subject to challenge under section 1983. See Rosati v. Haran, 459 F.Supp. 1148, 1160-61 (E.D.N.Y.1977). As the complaint fails to state a claim of constitutional magnitude against either Shiflet or Fritschel, the Court finds no need to assist plaintiff in obtaining service over them.
In conclusion, the Court grants defendant Mulcrone's motion to dismiss. Finding no legal merit to the claims against defendants Fritschel and Shiflet, the Court, on its own motion, dismisses the complaint against them pursuant to 28 U.S.C. § 1915(d). Accordingly, the action is dismissed in its entirety. It is so ordered.
NOTES
[1] Plaintiff directed the United States Marshal to serve the other two defendants at their places of employment. The summonses were returned unexecuted with notations that defendants no longer worked for the agencies by whom they were employed at the time relevant to the allegations of the complaint.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SYLVIA M. JONES, DOCKET NUMBER
Appellant, DA-0831-15-0014-I-1
v.
OFFICE OF PERSONNEL DATE: June 1, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Sylvia M. Jones, Houston, Texas, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reconsideration decision
finding that the appellant received a refund of her retirement contributions to the
Civil Service Retirement System (CSRS) and that she was not entitled to a
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
deferred annuity or to make a redeposit for her previous federal government
service. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant worked for the U.S. Postal Service from September 1970, to
February 1980, under the CSRS. Initial Appeal File (IAF), Tab 7 at 23. The
record contains two applications for a refund of CSRS retirement contributions
dated in December 1979, and February 1980. Id. at 32, 34. In April 1980, OPM
authorized a refund in the amount of $6,373.73, which included $247.13 that had
been taken out and paid to the appellant’s former employing agency for
overdrawn leave. Id. at 29. According to the appellant’s individual retirement
record (IRR), OPM paid refunds to both the appellant and the agency in
April 1980. Id. at 14. The record contains a 1982 request from the state
Department of Social Services for the appellant’s retirement information and a
signed authorization from the appellant authorizing OPM to release her retirement
information to that department. Id. at 16-19, 23-24. In a March 1982 letter that
3
was sent in response to the request from the state Department of Social Services,
OPM indicated that all retirement deductions had been refunded to the appellant
and that no further benefits were due. Id. at 23.
¶3 In June 2014, the appellant filed an application for deferred retirement. Id.
at 8-10. In a September 2014 final decision, OPM informed the appellant that she
was not eligible to receive an annuity because she had received a refund of her
retirement contributions. Id. at 6. OPM informed the appellant of her right to file
a Board appeal. Id. at 6-7. The appellant appealed OPM’s decision, asserting
that she was not the one who originally applied for a refund of her CSRS
contributions and that she never received the refund. IAF, Tab 1. The appellant
specifically alleged that the handwriting and signature on the refund request form
were not hers. Id. Before the administrative judge, the appellant alleged that
OPM and her former employing agency had engaged in fraud. IAF, Tab 14.
After holding a hearing, see Hearing Compact Disc (HCD), the administrative
judge issued an initial decision affirming OPM’s denial of the appellant’s
application for deferred retirement, IAF, Tab 19, Initial Decision (ID). She found
that the appellant failed to prove that she did not receive the refund of her
retirement contributions. 2 ID at 5-10.
¶4 The appellant has filed a timely petition for review in which she essentially
reiterates the arguments that she raised below. 3 Petition for Review (PFR) File,
2
Although the appellant initially appeared to assert claims of discrimination and
retaliation, IAF, Tab 14, she clarified at the hearing that she was not asserting that OPM
discriminated or retaliated against her, see HCD.
3
On review, the appellant presents evidence and argument concerning instances of theft
or alleged identity theft, a portion of her personnel record from the agency, and a
statement from her sister. Petition for Review File, Tab 1. The appellant also states,
for the first time on review, that she had received a check from the agency for $1,700
after she was removed. I d. at 4-5. Under 5 C.F.R. § 1201.115, the Board will not
consider evidence submitted for the first time with the petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 215 (1980). The appellant
4
Tab 1. The agency has responded in opposition to the petition for review. PFR
File, Tab 4.
ANALYSIS
¶5 We find that the administrative judge correctly determined that the
appellant failed to demonstrate by preponderant evidence that she did not receive
a refund of her retirement deductions or that she was otherwise entitled to
retirement benefits under the CSRS. See ID at 10-11. An applicant for retirement
benefits bears the burden of proving entitlement to the benefits she seeks by a
preponderance of the evidence. 4 Jordan v. Office of Personnel
Management, 100 M.S.P.R. 623, ¶ 7 (2005); see 5 C.F.R. § 1201.56(b)(2)(ii).
Subject to exceptions not applicable in this case, under 5 U.S.C. §§ 8334(d)(1),
8342(a), if an employee has received a lump-sum payment of her retirement
deductions, her right to annuity payments thereafter is extinguished in the
absence of any evidence showing that she was subsequently reemployed in a
position subject to the Civil Service Retirement Act and she had redeposited the
amount she received, with interest. See Yarbrough v. Office of Personnel
Management, 770 F.2d 1056, 1060-61 (Fed. Cir. 1985). When, as here, the
appellant denies receipt of a refund of retirement contributions, she bears the
burden of proving such nonreceipt by preponderant evidence. Manoharan v.
Office of Personnel Management, 103 M.S.P.R. 159, ¶ 12 (2006).
¶6 In addressing the issue of whether an appellant has received a refund of her
retirement contributions, the Board will consider any office records kept by OPM
showing that OPM previously had authorized a refund and will accord those
records substantial weight to the extent that they give rise to an inference that the
has not made such a showing here. Additionally, even if we considered this evidence, it
would not affect the outcome of the appeal.
4
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
appellant actually received a refund. See, e.g., Danganan v. Office of Personnel
Management, 55 M.S.P.R. 265, 269 (1992), aff’d, 19 F.3d 40 (Fed. Cir. 1994)
(Table); Rint v. Office of Personnel Management, 48 M.S.P.R. 69, 72, aff’d,
950 F.2d 731 (Fed. Cir. 1991) (Table). Evidence of such office records will
typically outweigh an appellant’s uncorroborated testimony that she never
actually received a refund. See, e.g., Sosa v. Office of Personnel
Management, 76 M.S.P.R. 683, 685-86 (1997). Where definitive proof that the
appellant actually received a refund no longer is available because of the
appellant’s delay in pursuing her claim, the Board has found that OPM’s ability to
defend the appeal has been impaired and that OPM would be unduly prejudiced if
the Board required it to produce definitive proof of the appellant’s actual receipt
of the check. See id. at 686.
¶7 In her decision, citing the factors set forth in Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987), the administrative judge found that the
appellant’s testimony that she did not receive the refund of her retirement
contributions was not credible. ID at 7-8. She found that both refund
applications contained the appellant’s correct personal information and signatures
that appeared similar to her signature on other documents in the record. ID at 8;
see IAF, Tab 7 at 32, 34 (the appellant’s original applications for a refund); see
also IAF, Tab 7 at 10, 18, 25-27, 36, Tab 14 (other examples of the appellant’s
signature). She also found that, contrary to the appellant’s testimony, there was
no probative evidence of “tampering” or “fraud” regarding the second refund
application. ID at 8. The administrative judge also stated that there was no
evidence to support the appellant’s conclusory and speculative statements
regarding the perpetration of possible fraud, either by the father of her children,
the U.S. Postal Service managers, or by the “federal government” at large. ID
at 9. The administrative judge therefore concluded that the appellant was not
entitled to a deferred annuity because she had received a refund of her CSRS
contributions and that she was not otherwise entitled to a deferred annuity or to
6
make a redeposit for her prior federal service because she was not a federal
government employee and had no other qualifying service. ID at 11.
¶8 We have reviewed OPM’s records, including its refund authorization, the
appellant’s IRR, and its 1982 correspondence regarding the refund. Based on that
review, we agree with the administrative judge that OPM’s evidence gives rise to
an inference that the appellant actually received the refund. IAF, Tab 7 at 13-35;
see Danganan, 55 M.S.P.R. at 269.
¶9 We also agree with the administrative judge’s determination that the
appellant’s testimony was not credible. See ID at 8. The Board will defer to the
credibility determinations of an administrative judge when they are based,
explicitly or implicitly, upon the observation of the demeanor of witnesses
testifying at a hearing because the administrative judge is in the best position to
observe the demeanor of the witnesses and determine which witnesses were
testifying credibly. Haebe v. Department of Justice, 288 F.3d 1288, 1300-01
(Fed. Cir. 2002). The administrative judge found that the appellant’s testimony
was not credible in light of its inconsistencies with other evidence of record and
the inherent improbability of the events occurring in the way the appellant
contended. ID at 8. Because the administrative judge’s credibility findings are
based on proper considerations, supported by the record, and implicitly based on
her observations, we will defer to them on review. See Haebe, 288 F.3d
at 1300-01.
¶10 We note that the Board has held that it may be appropriate to hold OPM
responsible for its own inability to defend the appeal where the appellant put
OPM on notice shortly after her refund application that she had not received her
refund. Manoharan, 103 M.S.P.R. 159, ¶ 18. However, in this case, the
appellant applied for her refund in 1979 and 1980, IAF, Tab 7 at 32, 34, and did
not assert to OPM that she did not receive her refund until 2014, when she
indicated in her retirement application that she had not previously filed any
application under the CSRS, id. at 9. We therefore find that OPM should not be
7
held responsible for its inability to prove that the appellant received the refund.
See Manoharan, 103 M.S.P.R. 159, ¶ 18.
¶11 The Board also has held that, although OPM’s records typically will
outweigh an appellant’s uncorroborated testimony that she never actually
received a refund, an appellant’s credible explanation of events, supported by
documentary evidence, may be sufficient to overcome OPM’s evidence that it
previously refunded the appellant’s retirement contributions. Id., ¶ 12-15.
However, as previously discussed, we defer to the administrative judge’s finding
that the appellant’s testimony was not credible; we also find that her testimony is
not supported by documentary evidence. We therefore find that the appellant’s
testimony is insufficient to overcome OPM’s evidence that she received a refund
of her retirement contributions. See Sosa, 76 M.S.P.R. at 686.
¶12 Accordingly, we agree with the administrative judge’s finding that the
evidence as a whole does not establish that the appellant failed to receive the
refund of her retirement contributions. See ID at 10-11. We therefore also agree
that, because the appellant withdrew her retirement deductions, was not presently
employed in the federal government, and did not have any other qualifying
service, she was not entitled to make a deposit or to receive a deferred annuity.
ID at 11 (citing 5 U.S.C. § 8342(a)); see Morales v. Office of Personnel
Management, 58 M.S.P.R. 5, 8-9 (1993)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
8
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
9
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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769 So.2d 1102 (2000)
Erling SPEER, Appellant/Cross-Appellee,
v.
Charles MASON and E. Speer & Associates, Inc., f/k/a Environmental Ventures, Inc., Appellee/Cross-Appellant.
No. 4D99-2163.
District Court of Appeal of Florida, Fourth District.
October 4, 2000.
*1103 Edward A. Marod of Edward A. Marod, P.A., West Palm Beach, for Appellant/Cross-Appellee.
Leif J. Grazi of Grazi and Gianino, Stuart, and Steven M. Goldsmith, Boca Raton, for Appellee/Cross-Appellant Charles Mason.
OFTEDAL, RICHARD, Associate Judge.
Erling Speer appeals only that portion of the trial court's final judgment awarding attorney's fees in favor of Charles Mason pursuant to the provisions of section 448.08, Florida Statutes.[1] In his cross-appeal, Mason raises several issues challenging the amount of the fee. We affirm the trial court's award of attorney's fees to Mason and find merit in his cross-appeal.
Speer contends that Mason is not entitled to attorney's fees since section 448.08 is applicable only to actions for recovery of lost wages.[2] At issue in this employment dispute is whether an action over an employee's vested interest in a profit sharing plan may be considered to be within the purview of the statute. This is a question of both law and fact. See, e.g., Ferry v. XRG Int'l., Inc., 492 So.2d 1101 (Fla. 4th DCA 1986). Our review is complicated by the fact that the trial court proceedings were unreported; no transcript of the attorney's fee hearings exist. The trial court's factual findings are presumed to be correct and may be reversed only in the absence of substantial, competent evidence, an impossible task given the *1104 lack of a transcript. See Bimonte v. Martin-Bimonte, 679 So.2d 18 (Fla. 4th DCA 1996). Our inquiry does not end, however, as the trial judge's application of the law is subject to judicial review.
Although the term "unpaid wages" is not defined in the statute, it seems clear that it encompasses more than mere salary as argued by Speer. To the contrary, Florida courts have addressed several types of compensation other than salary and found them to be "unpaid wages" within the meaning of the statute. See, e.g., Warshall v. Price, 629 So.2d 905 (Fla. 4th DCA 1993); Strasser v. City of Jacksonville, 655 So.2d 234 (Fla. 1st DCA 1995)(annual leave credits and vacation pay); D.G.D., Inc. v. Berkowitz, 605 So.2d 496 (Fla. 3d DCA 1992)(unpaid commissions); Woods v. United Indus. Corp., 596 So.2d 801 (Fla. 1st DCA 1992)(severance pay); Ivens Corp. v. Cohen, 593 So.2d 529 (Fla. 3d DCA 1992)(employee bonuses).
This court, in Ferry, upheld an attorney's fee award under section 448.08 in an action by an employee to recover one year's salary as a termination benefit. We relied upon the definitions of "wages" utilized by our sister courts in Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984), and Community Design Corporation v. Antonell, 459 So.2d 343 (Fla. 3d DCA 1984), and by this court in Gulfstar Yacht Sales, Inc. v. Bissell, 487 So.2d 31 (Fla. 4th DCA 1986). The one year's salary provided for in the employment contract in the event the employee was terminated without cause "was an inducement to procure his services and to help ensure the continued quality of those services once he was employed." Ferry, 492 So.2d at 1104.
Similarly, in this case, Mason's compensation agreement with ESA included participation in a non-qualified profit sharing program that provided he would receive the vested portion of the profit sharing plan upon termination of his employment as part of his "final compensation." It is akin to the termination benefit in Ferry in that it was provided as further compensation to ensure Mason's continued employment and quality of services. Thus, even though the profit sharing benefit in this case is retirement-oriented, it cannot be considered a retirement benefit since, like a bonus, it is given as payment of services rendered, thereby distinguishing it from other benefits that are given because of a perceived societal or moral obligation due an employee when he or she can no longer work. See Coleman v. City of Hialeah, 525 So.2d 435, 437 (Fla. 3d DCA 1988)("[B]enefits given by an employer as a part of a social security type schemesuch as pension benefits, worker's compensation benefits, or unemployment benefitsare not considered `wages' in the commonly accepted use of that term....").
Having concluded that the trial judge correctly ruled that the compensation provided for in the compensation agreement constituted "wages," we next address Mason's cross-appeal on the issue of attorney's fees, wherein he argues that the wrong contingent fee multiplier was applied to the lodestars found by the trial judge. Once again, we are hampered in our review by a lack of a transcript. Efforts by the parties to reconstruct the record and prepare a statement of evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) were only partially successful.[3] A statement of evidence was approved by the trial court that was modified to include only facts specifically *1105 recalled by the judge. The trial judge's inability to have total recall of the entire proceedings does not render the record inadequate or call for the striking of the statement of evidence as asked for by Speer. See Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983).
The record, such as it is, is nonetheless sufficient to justify entitlement to a multiplier, a fact conceded by Speer at the attorney's fee hearing and supported by the original contingency agreement executed in this case. Because the testimony of the witnesses and the statement of evidence, as approved, demonstrate that the likelihood of success by the attorneys was remote, the trial court could have awarded Mason's trial attorney a multiplier of between 2 and 2.5 instead of the 1.5 actually given. See Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 834 (Fla.1990). The entitlement and use of a multiplier in a partial contingency fee case such as this is not automatic but is a matter of judicial discretion. However, in exercising that discretion, the trial judge must include findings supporting a multiplier. Absent such findings, reversal and remand are required. See Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Atlantis Bldg. B Condominium Ass'n v. Skawski, 544 So.2d 1069 (Fla. 4th DCA 1989); Old S. Life Ins. Co. v. Kirby, 563 So.2d 706 (Fla. 5th DCA 1990).
The final judgment awarding attorney's fees in this case contains no findings supporting either the granting of a 1.5 multiplier for the attorney representing Mason, or the denial of any multiplier for work done by his associate on the case. Therefore, we must reverse the award of attorney's fees and remand for the trial court to conduct such hearings as may be necessary to determine the appropriate contingency fee multipliers and to enter a final judgment with findings in support of the trial court's ruling.
Finally, we address Mason's motion for appellate attorney's fees against Speer. As previously noted, Speer was made a party to this appeal through supplementary proceedings undertaken in accordance with section 56.29, Florida Statutes. Florida law does not allow for an award of prevailing attorney's fees against such a party. See Rosenfeld v. TPI Int'l Airways, 630 So.2d 1167 (Fla. 4th DCA 1993). Accordingly, Mason's motion for appellate attorney's fees is denied.
Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.
WARNER, C.J. and STEVENSON, J., concur.
NOTES
[1] Speer was added as a supplementary defendant only after E. Speer & Associates, Inc., n/k/a C.V. Holdings, Inc. (ESA) filed for bankruptcy. This action remains stayed as to ESA.
[2] Section 448.08, Florida Statutes, provides that "The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney's fee."
[3] Fla. R.App. P. 9.200(b)(4) provides:
If no report of the proceedings was made, or if the transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JENNIFER HAMEN, et al.,
Plaintiffs,
v. Civil Action No. 16-1394 (RDM)
ISLAMIC REPUBLIC OF IRAN, et al.,
Defendants.
MEMORANDUM OPINION
In October 2015, Mark McAlister and John Hamen, private contractors sent to assist in
the renovation of a hotel in Yemen used to house United Nations personnel, were abducted from
the airport in Sana’a, Yemen. Dkt. 57 at 1. This abduction was carried out by members of
Yemeni militant group known as the Houthis. Id. The Houthis murdered Hamen sixteen days
later and held McAlister as a hostage for over six months. Id. at 1, 17. In the aftermath of this
tragedy, Plaintiffs Mark McAlister, the estate of John Hamen, and eleven of their family
members, brought this action against the Islamic Republic of Iran (“Iran”) for “provi[ding]
material military and economic support” to the Houthis, alleging that the violence the Houthis
inflicted on McAlister and Hamen was “an expected and welcomed result of such support.” Dkt.
1 at 17–18 (Compl. ¶¶ 94, 106). Iran was duly served yet failed to respond to the complaint or
otherwise to appear. See Dkt. 57 at 1.
To establish subject-matter jurisdiction, Plaintiffs invoked the state-sponsored terrorism
exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A(a). Dkt. 1 at
1
3. And, for a cause of action, Plaintiffs relied on § 1605A(c), alleging that Iran provided
“material support” to the Houthis, which used that support to engage in acts of extrajudicial
killing, hostage taking, and torture. Dkt. 1 at 18 (citing 28 U.S.C. § 1605A(c)). On August 7,
2019, the Court issued a decision finding that (1) the Houthis “committed ‘hostage taking’
. . . with respect to McAlister” and “committed an extrajudicial killing of Hamen,” Dkt. 57 at
26; (2) “Iran provided ‘material support or resources’ to the Houthi militants in the form of
weapons, financial support, and training, both directly and indirectly through Hezbollah,” id.;
and (3) “this support ‘caused’ the hostage-taking of McAlister and extrajudicial killing of
Hamen,” id. at 31. Based on these findings, the Court held that it had subject-matter jurisdiction
over Plaintiffs’ claims, see id. (citing 28 U.S.C. §§ 1330(a), 1605A(a)(1)), and that Iran was
liable for Plaintiffs’ injuries and losses, id. at 32. The Court, accordingly, granted Plaintiffs’
motion for entry of default judgment against Iran. Dkt. 58.
For assistance in evaluating Plaintiffs’ damages, the Court referred the case to a special
master, Deborah Greenspan, to prepare a report and recommendations regarding compensatory,
but not punitive, damages. See Dkt. 59 (Order Appointing Special Master). The Special Master
has now filed her report and recommendations. See Dkt. 60 (Special Master Report). In
preparing the report, the Special Master reviewed sworn testimony, video depositions, medical
records and autopsies, and expert reports, all of which have been filed with this Court. See Dkt.
32–52. The report lays out the effects that the abduction, hostage taking, and murder had on the
family members of Mark McAlister and John Hamen, and carefully analyzes Plaintiffs’ claims
for damages under the applicable framework for state-sponsored terrorism cases. The Court
thanks the Special Master for her excellent and expeditious assistance.
2
As explained below, the Court adopts the Special Master’s proposed findings and
recommendations, subject to the modifications set forth below.
ANALYSIS
As an initial matter, the Court agrees with, and adopts without modification, the Special
Master’s findings of fact, all of which are well explained and amply supported by the record.
Tracking the Special Master’s report, the Court will first review her conclusions with respect to
the economic and non-economic damages that those findings support and will then turn to the
question of punitive damages, which is not addressed in the Special Master’s report.
A. Economic Damages
“Section 1605A explicitly provides that foreign state-sponsors of terrorism are liable to
victims for economic losses stemming from injuries or death sustained as a result of the foreign
state’s conduct.” Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22, 48 (D.D.C. 2016)
(citing 28 U.S.C. § 1605A(c)). Traditionally, plaintiffs may prove economic losses by the
submission of a forensic economist’s expert report. See Roth v. Islamic Republic of Iran, 78 F.
Supp. 3d 379, 402 (D.D.C. 2015). When evaluating an expert’s calculations, the Court must
consider the “reasonableness and foundation of the assumptions relied upon by the expert.” Id.
at 402 (citing Reed v. Islamic Republic of Iran, 845 F. Supp. 2d 204, 214 (D.D.C. 2012)).
The Estate of John Hamen seeks to recover the loss of income and benefits stemming
from Hamen’s murder. In support of this claim, the Estate submits the affidavit and testimony of
economist Dr. James V. Koch, a Visitors’ Professor of Economics and President Emeritus at Old
Dominion University in Norfolk, Virginia. Dkt. 32-6. As the Special Master observes, Dr. Koch
was a professor of economics at several universities, has received numerous honorary degrees,
3
published numerous books and articles on economics, and served as a consultant or expert
witness on behalf of numerous law firms and other organizations for various matters. See Dkt.
60 at 18–19 (citing March 5, 2018 Expert Affidavit of James V. Koch, (“Koch Affidavit”), Dkt.
32-6 at ¶¶ 1–2 and Exh. A (curriculum vitae)); see also Warmbier v. Democratic People’s
Republic of Korea, 356 F. Supp. 3d 30, 55–56 (D.D.C. 2018) (adopting Dr. Koch’s economic
loss calculations in a Section 1650A(c) case). In the view of the Special Master, Dr. Koch is
qualified as an expert for the purpose of determining economic loss. Dkt. 60 at 19. The Court
agrees.
Moving to Dr. Koch’s findings, the Special Master found that his assumptions were
“reasonable,” that his methods were “consistent with generally accepted practices,” and that he
“appl[ied] appropriate assumptions based on reasonable and well-documented sources.” Id. at
20. Accordingly, the Special Master recommends that the Court adopt Dr. Koch’s proposal as
the award of economic loss for the Estate of John Hamen. Id. The Court adopts his
recommendations and will award economic loss damages to the Estate of John Hamen in the
amount of $2,769,948.
B. Non-Economic Damages
1. Pain and Suffering for Mark McAlister
Plaintiff McAlister seeks $10,000 in damages to compensate for the pain and suffering he
suffered each day he was held captive, for a total amount of $1,920,000.1 Dkt. 29 at 19. Placing
1
Although both the Court’s Memorandum Opinion (liability decision) and the Special Master’s report state that
McAlister was held captive for six months and eleven days, the record reflects that he was held for six months and
nine days, from October 20, 2015 to April 29, 2016. See Dkt. 29 at 13 (Am. Compl. ¶ 75) (“Mark McAlister was
released into United States government custody on April 29, 2016.”); see also Timeanddate.com, available at:
https://www.timeanddate.com/date/durationresult.html?m1=10&d1=20&y1=2015&m2=4&d2=29&y2=2016 (192
4
a dollar amount on the kind of harm suffered by McAlister “can be difficult.” Moradi v. Islamic
Republic of Iran, 77 F. Supp. 3d 57, 70 (D.D.C. 2015) (internal quotes and citation omitted).
There is no market, economic study, or scientific analysis that the Court can employ. Courts do
find significant guidance, however, in the principle that “individuals with similar injuries receive
similar awards.” See, e.g., Harrison v. Republic of Sudan, 882 F. Supp. 2d 23, 48 (D.D.C. 2012)
(internal quotations omitted). With that principle in mind, McAlister’s claim of $10,000 per day
is well-founded: a “$10,000 per day of captivity has evolved in this [d]istrict as a general
standard for cases of prolonged and abusive unlawful detention brought under the FSIA.”
Azadeh v. Gov’t of the Islamic Republic of Iran, No. 16-1467, 2018 WL 4232913, at *18 (D.D.C.
2018); see also Moradi, 77 F. Supp. 3d at 70 (collecting cases). Given that McAlister’s
prolonged and abusive detention is comparable to that of other victims where the $10,000 per
day rate has been used, see, e.g., Azadeh, 2018 WL 4232913, at *11 ($10,000 rate where plaintiff
“was confined to a small cell lacking adequate light and toilet facilities, and was left with
nothing on which to sleep except an insect-infested rug”), the Court finds that $1,920,000
constitutes a reasonable estimate of the pain and suffering McAlister endured over the course of
his 192 days as a hostage.
For the post-detention period, McAlister seeks damages of $5 million. Dkt. 29 at 20. As
the Special Master explains, a line of cases has developed addressing similar claims for post-
release pain and suffering. See Dkt. 60 at 22 (citing Hekmati v. Islamic Republic of Iran, 278
F.Supp.3d 145,164 (D.D.C. 2017); Azadeh, 2018 WL 4232913, at *19–20; Moradi, 77 F. Supp.
days, or six months and nine days). This difference is of no import, however, as the cumulative day count remains
the same: 192.
5
3d at 69–70; Massie v. Gov’t of Democratic People’s Republic of Korea, 592 F. Supp. 2d 57, 77
(D.D.C. 2008); Price v. Socialist People’s Libyan Arab Jamahiriya, 384 F. Supp. 2d 120, 135-36
(D.D.C. 2006)). In these cases, courts have recognized that “the $10,000 per diem formula will
not always adequately compensate plaintiffs for the future pain and suffering they are likely to
endure as a result of their detention and torture.” Azadeh, 2018 WL 4232913, at *19. In such
cases, courts have considered it appropriate to “award a post-release amount that reflects the
length and severity of the plaintiff’s detention and torture, the extent of the plaintiff’s lasting
physical and mental injuries, and the estimated number of years that the plaintiff can be expected
to suffer from these injuries.” Id.
As with McAlister’s damages for the period he was in captivity, the guiding principle for
compensating McAlister for his post-release pain and suffering is that “individuals with similar
injuries receive similar awards.” Moradi, 77 F. Supp. 3d at 70 (internal quotations and citations
omitted). In this respect, the Special Master concluded that this court’s decision in Moradi v.
Islamic Republic of Iran, 77 F. Supp. 3d 57 (D.D.C. 2015), is particularly helpful, and the Court
agrees. The factors relevant to assessing post-release pain and suffering in this case—duration
and severity of detention, scope of the post-release injuries, and age of the victim—are similar to
the factors underlying the Moradi decision. As a result, the Special Master recommends that
McAlister be awarded the same relief as the plaintiff in Moradi—a lump sum of $5 million to
compensate for post-relief pain and suffering. Dkt. 60 at 23. The Court agrees and will,
accordingly, award $5 million in damages for McAlister’s post-release pain and suffering.
6
2. Pain and Suffering for John Hamen
The Estate of John Hamen seeks $5 million in pain and suffering damages for the abuse
and torture he endured during his 16 days in captivity and for the period immediately prior to his
death. See Dkt. 32 at 22. In light of the painful injuries Hamen suffered while in captivity, and
the “gruesome and violent” manner in which he was murdered, the Special Master recommends
that the Court award $6 million for Hamen’s pain and suffering. Dkt. 60 at 25–26. Although the
Court agrees that Hamen was brutally murdered and that his pain and suffering warrants
enhanced compensation, the Court concludes that the $5 million that Plaintiffs seek already
includes a substantial upward adjustment and, accordingly, will award that amount.
This court has repeatedly recognized that the fear and distress caused by knowing that
one’s death is imminent is a reasonable component of damages, as is the physical pain associated
with a brutal murder. See Dkt. 60 at 24 (citing Baker v. Socialist People’s Libyan Arab
Jamahirya, 775 F. Supp. 2d 48, 81–82 (D.D.C. 2011); Pugh v. Socialist People’s Libyan Arab
Jamahiriya, 530 F. Supp. 2d 216, 221, 266–73 (D.D.C. 2008); Eisenfeld v. Islamic Republic of
Iran, 172 F. Supp. 2d 1, 5, 8 (D.D.C. 2000); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d
97, 112–13 (D.D.C. 2000)). It is less clear, however, how best to measure that extraordinary
form of injury. In a case in which the victim survives a terrorist attack but sustains substantial
injuries, courts typically apply a “baseline assumption” that the victim is entitled to $5 million in
compensation for pain and suffering, although that number is subject to upward or downward
adjustment. Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24, 37-38 (D.D.C. 2012). But
that baseline amount does not apply here because it typically includes a component for pain and
7
suffering or “‘impairment that will remain with the victim for the rest of his or her life.’” Id. at
37 (citation omitted).
In contrast, where, as here, the victim does not live for a significant period of time after
the attack, the relevant starting place is often lower than $5 million. Courts have, for example,
calculated pain and suffering by awarding $10,000 for each day the victim was held captive plus
an additional $1,000,000 for the anguish the victim endured while facing imminent death. See,
e.g., Surette v. Islamic Republic of Iran, 231 F. Supp. 2d 260, 269 (D.D.C. 2002); see also
Azadeh, 2018 WL 4232913, *18–19 (using a per diem plus approach where the victim was
abducted and experienced the pain of facing imminent death). Where the period of suffering
lasts longer than a few minutes and where the victim is subject to extraordinarily cruel and
painful treatment, however, this court has awarded much larger, lump sum amounts. See, e.g.,
Foley v. Syrian Arab Republic, 281 F. Supp. 3d 153, 157 (D.D.C. 2017) (awarding the estate $30
million for pain and suffering where victim was “subjected to various blunt force injuries,
strangulation, and the removal of his eyes and tongue before his death”); Wultz, 864 F. Supp. 2d
at 31, 38 (awarding $8 million to victim who “suffered from severe bleeding caused by multiple
shrapnel wounds, acute respiratory distress, a perforated bowel, multiple infections, . . . acute
renal failure, hemorrhagic and septic shock, among other injuries” before dying “nearly one
month” after the attack). Moreover, where a victim suffered brutal treatment over a relatively
brief period of confinement, this court has, at times, applied a lump sum approach, without a per
diem component. See, e.g., Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 222, 234
(D.D.C. 2002), abrogated on other grounds by Cicippio-Puleo v. Islamic Republic of Iran, 353
F.3d 1024 (D.C. Cir. 2004).
8
Following the lead of these decisions, the Court concludes that the Estate of John Hamen
is entitled to a substantial upward adjustment from the $1 million payment for pain and suffering
“typically” awarded in cases involving victims “who survive[] a few minutes to a few hours
after” a terrorist attack. Wultz, 864 F. Supp. 2d at 38. Here, there is evidence that Hamen was
severely beaten while he was in captivity and that he was murdered in a particularly cruel and
inhumane manner, which undoubtedly caused him to suffer severe pain and terror. As a result, a
per diem approach substantially understates his suffering, as does the $1 million benchmark
applied in cases in which a terrorist attack, such as a bombing, results in a relatively quick, albeit
painful, death. Although not precisely on all fours, this case is similar to Fritz v. Islamic
Republic of Iran, 324 F. Supp. 3d 54 (D.D.C. 2018), where this Court awarded $5 million in
compensation for pain and suffering to soldiers who were shot, beaten, and ultimately murdered
over a short period of time. As in Fritz, the Court finds that an award of $5 million in pain and
suffering damages to the estate of the decedent strikes the proper balance.
3. Solatium for Family Members
“Solatium claims are typically brought by family members who were not present or
injured themselves.” Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71, 84 (D.D.C. 2017)
(“Cohen I”). An award of solatium damages is intended to compensate for “the mental anguish,
bereavement and grief that those with a close personal relationship to a decedent experience as
the result of the decedent’s death, as well as the harm caused by the loss of the decedent.” Belkin
v. Islamic Republic of Iran, 667 F. Supp. 2d 8, 22 (D.D.C. 2009). The state-sponsored terrorism
exception to the FSIA expressly contemplates the award of solatium damages to the close
relatives of terrorism victims. See 28 U.S.C. § 1605A(c). As the Special Master notes, there
9
exists a “‘presumption’ that family members in direct lineal relationship ‘suffer compensable
mental anguish and testimony proving a close relationship will usually be sufficient to sustain an
award of solatium damages.’” Kaplan v. Hezbollah, 213 F. Supp. 3d 27, 38 (D.D.C. 2016)
(quoting Kim v. Democratic People’s Republic of Korea, 87 F. Supp. 3d 286, 290 (D.D.C.
2015)) (internal alterations omitted).
“Solatium damages, like damages for pain and suffering, are by their very nature
unquantifiable.” Moradi, 77 F. Supp. 3d at 72. But, as with the latter, courts have identified
certain baselines that help ensure that similarly situated victims receive comparable awards.
Specifically, courts in this district have followed the framework set out in Heiser I, which
concluded that “courts typically award between $8 million and $12 million for pain and suffering
resulting from the death of a spouse[,] approximately $5 million to a parent whose child was
killed[,] and approximately $2.5 million to a plaintiff whose sibling was killed.” Estate of Heiser
v. Islamic Republic of Iran, 466 F. Supp. 2d 229, 269 (D.D.C. 2006) (“Heiser I”) (footnotes
omitted). These amounts, however, are merely guideposts, and courts should deviate depending
on the circumstances. See Fraenkel v. Islamic Republic of Iran, Ministry of Foreign Affairs, 892
F.3d 348, 361–62 (D.C. Cir. 2018). As relevant here, courts have increased solatium damages in
those circumstances where the evidence demonstrates that the family members are experiencing
more extreme effects of the loss of their loved one. See, e.g., Valore, 700 F. Supp. 2d at 85–86;
Stethem v Islamic Republic of Iran, 201 F. Supp. 2d 78, 90-91 (D.D.C. 2002).
Solatium damages are also available to family members of injured victims. As the
Special Master observes, several decisions have awarded solatium damages where the victim is
still living ranging from $4 million for a spouse of the victim, $2.5 million for parents of the
10
victim, and $1.25 million for siblings of the victim. Dkt. 60 at 29 (citing Anderson v. Islamic
Republic of Iran, 839 F. Supp. 2d 263, 266 (D.D.C. 2012); Kaplan, 213 F. Supp. 3d at 38).
Turning to the case at hand, the record demonstrates that the death of John Hamen and
the injuries to Mark McAlister have wrought profound harm to each of these families—
emotional, physical, and financial. Each family member has also presented to the Court and the
Special Master evidence demonstrating his or her close relationship to the respective direct
victims and the irreparable loss he or she continues to bear. The Special Master has considered
the individual circumstances of each of the plaintiffs and has recommended an amount for each.
Given the comprehensive evidence of devastating individualized grief and loss in the record, see
Dkt. 32-7–12, the Court adopts the Special Master’s recommendations regarding each of the
family members of the direct victims.
4. Punitive Damages
Finally, Plaintiffs also seek punitive damages. Dkt. 32 at 31–33. Punitive damages
“serve to punish and deter the actions for which they awarded.” Valore, 700 F. Supp. 2d at 87.
In its current iteration, the FSIA expressly contemplates the award of punitive damages. See 28
U.S.C. § 1605A(c). Pursuant to this Court’s order on August 8, 2019, see Dkt. 59 at 1, the
Special Master did not consider, and did not calculate, an appropriate award of punitive
damages. Rather, the Court reserved this task for itself, which it takes up now.
According to Plaintiffs, punitive damages are warranted in this case not only because of
the outrageous conduct directed at Hamen and McAlister, but also because Iran’s support of the
Houthi militant group evinces “a particularly heinous disregard for the rule of law and the rule of
nations.” Dkt. 50 at 65. In particular, Plaintiffs contend that punitive damages are warranted
11
because Iran’s provision of material support to the Houthis contravened the 2015 Joint
Comprehensive Plan of Action, an agreement Iran entered into just months prior to the acts at
issue here. Id. at 65–66. Plaintiffs, however, cite to no law, and the Court is unaware of any
law, that makes alleged violations of international agreements, rather than the underlying
outrageous acts, a central consideration in the award of punitive damages. The fact that this case
involves the abduction, hostage taking, and murder of innocent men establishes Plaintiffs’ right
to punitive damages. That conduct is, by any measure, a violation of settled international norms
and deplorable, and Iran’s asserted violation of yet another international norm does not
fundamentally change the calculus presented by Plaintiffs’ application for an award of punitive
damages.
That said, the Court is convinced that Plaintiffs are entitled to a substantial award of
punitive damages. In determing the amount of punitive damages to award, courts typically
consider four factors: “(1) the character of the defendants’ act, (2) the nature and extent of harm
to the plaintiffs that the defendants caused or intended to cause, (3) the need for deterrence, and
(4) the wealth of the defendants.” Fritz, 324 F. Supp. 3d at 65 (internal quotations and citations
omitted). As to the first two factors, Iran’s actions caused the Houthis deliberately and viciously
to harm and then murder John Hamen and to abduct and hold Mark McAlister hostage for 192
days. Third, Iran’s conduct of providing material support to militant groups for the purpose of
harming Americans is “part of a longstanding pattern and policy, making the need for deterrence
clear.” Hekmati, 278 F. Supp. 3d at 166. Finally, “Iran is a sovereign and has substantial
wealth.” Bluth v. Islamic Republic of Iran, 203 F.Supp.3d 1, 25 (D.D.C. 2016).
12
In cases involving state-sponsored terrorism, most decisions from this court have applied
a multiplier to a base amount (referred to as the “multiplicand”). See Harrison, 882 F. Supp. 2d
at 50. As to the multiplicand, some decisions have utilized the defendant’s annual expenditures
on terrorist activities,2 see, e.g., Valore, 700 F. Supp. 2d at 88, while others have instead opted to
use the amount of compensatory damages already awarded, see, e.g., Gill v. Islamic Republic of
Iran, 249 F. Supp. 3d 88, 106 (D.D.C. 2017), and still others have considered both these factors
together, see, e.g., Hekmati, 278 F. Supp. 3d at 166–67.
For present purposes, the Court concludes that the appropriate multiplicand is the total
compensatory damages already awarded. The reason is that Plaintiffs have not provided
sufficient evidence as to Iran’s expenditures nor are the acts underlying this case as
“exceptionally” deadly or substantial as those in cases where the total-expenditures multiplicand
has been used. See Dkt. 50 at 64 (conceding that plaintiffs “didn’t put on a lot of testimony”
about Iran’s expenditures because that method of calculating punitive damages has, on Plaintiffs’
view, “fallen out of favor”); Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51, 55 (D.D.C.
2010) (using the total-expenditures multiplicand for claims arising from the Beirut bombing
where 241 Americans were killed); but see Cronin, 238 F. Supp. 2d at 236 (utilizing the total-
expenditures multiplicand where plaintiff was abducted and held captive for four days).
2
A different yet similar version of this method is to forgo the multiplicand and multiplier
approach and instead impose a fixed sum of $300 or $150 million per family. See Cohen v.
Islamic Republic of Iran, No. 12-1496, 2017 LEXIS 118770, at *71 (D.D.C. July 3, 2017)
(collecting cases).
13
This leaves, then, only the question of the appropriate multiplier. Courts in this
jurisdiction have frequently used a multiplier between one and five depending on various factors,
including, among other things, whether the case involved exceptional circumstances, the
perceived deterrence effect, the nexus between the defendant and the injurious acts, and the
evidence plaintiffs presented regarding the defendant’s funding for terrorist activities. See, e.g.,
Moradi, 77 F. Supp. 3d at 73 (multiplier of 1 where Iranian authorities directly detained and
tortured, but did not kill, plaintiff); Hekmati, 278 F. Supp. 3d at 167 (same); Fritz, 324 F. Supp.
3d at 65 (multiplier of 2 for a case involving hostage-taking and killing by terror organization the
defendant supported); Harrison, 882 F. Supp. at 50 (multiplier of 3 for the bombing of the U.S.S.
Cole where plaintiffs presented no evidence relating to defendant’s expenditures on terrorist
activities); Haim, 784 F. Supp. 2d at 3 (multiplier of 3 for a suicide bombing that killed eight);
Valore, 700 F. Supp. 2d at 88 (multiplier of 5 for victims of the Beirut bombing where plaintiffs
presented expert testimony on the deterrence effect of punitive damages).
Turning to this case, the Court finds that one of its prior opinions, Fritz, involved a
closely analogous set of circumstances and thus provides an appropriate benchmark. In Fritz, the
Court found that Iran provided material support to a terrorist organization that abducted, tortured,
and later executed the plaintiff. See Fritz, 324 F. Supp. 3d at 58. In light of those findings and
awards entered in previous cases, the Court found a “multiplier of two [was] appropriate in [that]
case.” Id. at 65. A multiplier of two is likewise appropriate here. Although undoubtedly
heinous, the underlying acts here do not differ in kind from the conduct in Fritz, and, Plaintiffs
have presented scant evidence regarding the potential deterrence effect of a larger multiplier.
Accordingly, the Court will utilize a multiplier of two. Because the compensatory damages
14
already awarded total $84,289,948, the Court awards punitive damages in the amount of
$168,579,896. Consistent with other decisions in this circuit, the award of punitive damages will
be apportioned among the estate and each individual plaintiff “relative to their individual
compensatory awards.” Cohen II, 268 F. Supp. 3d at 28.
CONCLUSION
The Court will enter a separate order awarding damages to Plaintiffs as described above.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 10, 2019
15
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544 S.W.2d 556 (1976)
Arthur L. MALLORY et al., Plaintiffs-Respondents,
v.
Anna BARRERA et al., Defendants-Appellants.
No. 59219.
Supreme Court of Missouri, En Banc.
December 30, 1976.
*558 Thomas M. Sullivan, Kansas City, Louis C. Defeo, Jr., Jefferson City, for defendants-appellants.
Harry D. Dingman, Kansas City, for plaintiffs-respondents.
G. Dennis Sullivan, Kansas City, for amicus curiae.
HENLEY, Judge.
This is a declaratory judgment action brought by the Commissioner of Education of Missouri (State Commissioner) and the Missouri State Board of Education (State Board) (the plaintiffs) against Anna Barrera, et al. (defendants), parents of students attending elementary or secondary parochial schools in Kansas City, Missouri, seeking resolution of these two questions:
1. Whether funds paid to the State of Missouri by the United States under the provisions of Title I of the Elementary and Secondary Education Act of 1965 (hereinafter the Act or ESEA or Title I)[1] are public funds subject to spending proscriptions of the laws of Missouri.
2. Whether Missouri law prohibits, permits or requires the use of public school personnel paid with Title I funds to provide teaching services to private school children on the premises of private (sectarian and nonsectarian) schools during regular school hours.
Plaintiffs do not bring this action against the defendants as members and representative *559 parties of all of a class; on the contrary, plaintiffs' petition explicitly disavows any purpose of making this a class action, the result of which would be binding upon anyone other than the named parties.
In a counterclaim seeking relief in the event the court should hold that Title I funds are public funds subject to the spending proscriptions of the laws of Missouri, defendants prayed that the court by its judgment:
1. Declare that no part of Title I funds paid to the state may be used to provide educational equipment or materials or other services or benefits for children attending nonpublic schools.
2. Enjoin plaintiffs, and those under their control, from participating in Title I, ESEA projects and from providing assurances required by the ESEA to the U.S. Commissioner of Education (hereinafter Federal Commissioner).
Judgment was for plaintiffs and against defendants on the plaintiffs' claim and on the defendants' counterclaim. Defendants appealed. We affirm.
Title I of the Act is a federal program authorizing financial aid "to local educational agencies[2] [of the states] serving areas with concentrations of children from low-income families" to enable those agencies to "expand and improve their educational programs by various means * * * which contribute particularly to meeting the special educational needs of educationally deprived children" attending elementary and secondary schools, both public and private, in those areas.[3]
The Act is designed to be administered by local and state public education officials. The administrative structure set up by the Act places primary responsibility for planning, designing and carrying out a Title I program upon the local education agency. The proposed program planned and designed by the local agency is then submitted to the state educational agency[4] for its approval. If approved, the state agency then forwards the proposal to the Federal Commissioner for his approval. If the proposal is approved by him, the Federal Commissioner is authorized to "pay to * * * [the] State * * * the amount which it and the local educational agencies of that State are eligible to receive under * * * [approved proposals]." 20 U.S.C., § 241g(a)(1). The state educational agency is required to distribute these funds to its local educational agencies. 20 U.S.C., § 241g(a)(2). In order to receive state approval, the proposal of the local agency must be designed to provide, among other requirements, that eligible children enrolled in private schools have the opportunity to participate in Title I programs comparable to those provided like children in the public schools of its area. 20 U.S.C., § 241e(a)(2); 45 CFR, § 116.19.
This case may be said to be a "spinoff" from Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974), another round of the "apparently endless legal battle" over Title I funds spoken of in the first sentence of Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976)[5] involving these same defendants on one side and the State Commissioner and State Board on the other.
*560 Defendants' primary complaint, manifest in each round of this conflict, is and has been that plaintiffs have failed and refused to approve plans and proposals that would employ the use of teachers, paid with Title I funds, on private school premises during regular school hours; that plaintiffs have thereby arbitrarily and illegally deprived the parochial school children of these defendants and other eligible nonpublic school children of services comparable to those afforded eligible public school children.
The position of the State Commissioner and State Board is and has been that the Missouri Constitution and statutes and the First Amendment of the United States Constitution forbid their approval of any proposed Title I program which would authorize the use of publicly-funded teaching personnel on the premises of nonpublic schools, and that Title I did not require such approval.
Addressing itself to the 1973 decision of the court of appeals in Barrera v. Wheeler, supra, the Supreme Court of the United States said in Wheeler v. Barrera, supra:
"At the outset, we believe that the Court of Appeals erred in holding that federal law governed the question whether on-the-premises private school instruction is permissible under Missouri law. Whatever the case might be if there were no expression of specific congressional intent, Title I evinces a clear intention that state constitutional spending proscriptions not be pre-empted as a condition of accepting federal funds. The key issue, namely, whether federal aid is money `donated to any state fund for public school purposes,' within the meaning of the Missouri Constitution, Art. 9, § 5, is purely a question of state and not federal law. By characterizing the problem as one involving `federal' and not `state' funds, and then concluding that federal law governs, the Court of Appeals, we feel, in effect nullified the Act's policy of accommodating state law. The correct rule is that the `federal law' under Title I is to the effect that state law should not be disturbed. If it is determined, ultimately, that the petitioners' position is a correct exposition of Missouri law, Title I requires, not that that law be preempted, but, rather, that it be accommodated by the use of services not proscribed under state law. The question whether Missouri law prohibits the use of Title I funds for on-the-premises private school instruction is still unresolved." 417 U.S. at 416-419, 94 S.Ct. at 2283.
The court noted in Wheeler v. Barrera, supra, the decision of this court in Special District v. Wheeler, 408 S.W.2d 60 (banc, 1966) (one of the authorities plaintiffs have relied upon in support of their position), but observed that that case did not involve federal financial aid. In Special District, we held, inter alia, that "[t]he use of public school funds for the education of pupils in parochial schools is not for the purpose of maintaining free public schools" within the meaning of Mo.Const. Art. IX, § 5, and § 166.011, RSMo 1969. See also: McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 (Mo. banc 1953).
The question whether the use of public funds in aid of parochial school students and schools violated Mo.Const. Art. I, § 7, or the Establishment Clause of the First Amendment was not presented in Special District. Although the First Amendment question was presented in Wheeler (417 U.S. at 415, 94 S.Ct. 2274) the court did not reach and decide it. However, less than a year later, that court did decide a similar First Amendment question in Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), a case involving a Pennsylvania statute, the stated purpose and certain provisions of which are analogous to those of Title I, ESEA. Barrera v. Wheeler, supra, 531 F.2d at 405. The court held in Meek that the Pennsylvania law's provisions for supplying publicly-employed teachers to provide instruction on the premises of sectarian schools violated the constitutional prohibition against laws "respecting an establishment of religion," because of the apparent "potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary services personnel remain strictly neutral and nonideological *561 when functioning in church-related schools * * *." 421 U.S. at 367-372, 95 S.Ct. at 1767. See also: Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
As it relates specifically to education, the public policy of this state, as expressed in its constitution and statutes, is: that free public schools shall be established and maintained by the state for all persons within certain ages;[6] that no public funds shall be used in aid or support of any school controlled by a sectarian denomination;[7] that the public schools shall be under the supervision of the State Board.[8] The State Board, charged with the responsibility of carrying out the educational policies of the state,[9] may not permit or require the use of any public funds for any purpose proscribed by state law.
Title I funds are obviously "public" funds. Speaking of these funds as "federal" to distinguish them from "state" funds does not alter their character as public funds. Nor does the fact that this is "federal aid" make it any the less public funds.
We are inclined to the view, and hold, (1) that when these funds are paid to the state, as required by the Act (20 U.S.C., § 241g(a)(1)), they must be deposited in the state treasury;[10] (2) that when so deposited, these funds are held by the state in trust for the uses and purposes specified in the Title I program approved by the Federal Commissioner, and may be appropriated and used by the state for such of those purposes as are not proscribed by the laws of this state; (3) that that part of these funds in a Title I project which has been approved by the Federal Commissioner for use in a free public school is "money donated to [a] state fund for public school purposes" within the meaning of the laws of Missouri; (4) that the use of any part of Title I funds by the state to provide teaching services to elementary and secondary school children on the premises of parochial schools would constitute the use of public funds (a) in aid of a denomination of religion proscribed by Art. I, § 7; and (b) to help to support or sustain a school controlled by a sectarian denomination proscribed by Mo.Const. Art. IX, § 8. Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609, 613-614 [8, 10] (Mo.banc 1942); Berghorn v. Reorganized School District No. 8, 364 Mo. 121, 260 S.W.2d 573, 582-583 (1953); Paster v. Tussey, 512 S.W.2d 97 (Mo.banc 1974).
Defendants suggest, and ask this court to hold, that a trust agreement method, the theory of which they say has been approved in Board of Public Buildings v. Crowe, 363 S.W.2d 598 (Mo.banc 1962) and in cases therein discussed, could be utilized to create a special trust fund, separate and apart from the state treasury, with the state Treasurer or other state officers as trustee, to receive, hold, disburse and account for Title I funds in accord with the Act and thereby avoid the fiscal scheme created by the Missouri Constitution, especially its spending proscriptions.
We recognize and approve the holdings in Crowe, supra, and cases discussed therein, based, as they are, on their particular facts. However, we note that they did not involve, as this case does, the use of public funds for purposes proscribed by the state constitution.
We note, too, that we are not, in fact, presented with a justiciable issue as to whether a trust agreement and fund may *562 be utilized to receive, hold and disburse Title I funds, because such an agreement for those particular purposes, and all the issues it might well present are foreign to the pleadings in this case. Defendants' "suggestion" that such a fund "could be" utilized does not present us with a live, contested trust agreement to which we could apply a decision; they present only a subject with which they ask us to deal in the abstract and, with that accomplished, they ask us to render a decision which could be advisory only. We decline to indulge in that fruitless exercise.
Defendants call attention to that part of § 38(a) of Art. III of the Constitution which provides that money may be received by the state from the United States and distributed for any public purpose designated by the United States.[11] They assert that the furnishing of public school personnel to provide teaching services to eligible children on the premises of parochial schools has been designated by the United States as a public purpose for which Title I funds may be used. Therefore, argue defendants, these funds may be expended by the state for this purpose notwithstanding other provisions of our constitution which specifically proscribe the use of public funds therefor.
We question the validity of the premise asserted by defendants that on-the-premises parochial school instruction has been, with authority, designated a purpose for which Title I funds may be used, particularly in view of Meek v. Pittenger, supra. But, we do not base our decision on First Amendment grounds; we base it on the provisions of the constitution of this state.
We disagree with defendants' argument that § 38(a) authorizes the state to expend Title I funds for on-the-premises parochial school instruction notwithstanding other provisions of our constitution which specifically proscribe the use of public funds for that purpose. Section 38(a) authorizes the state to receive and disburse these funds for a public purpose designated by the United States, but it does not authorize or require their use for a purpose so designated which is prohibited by other provisions of our constitution, such as Art. I, § 7, and Art. IX, § 8.
As to defendants' counterclaim, there is evidence (1) that "Title I funds are used [by the state] to provide certain textbooks and library books and reading materials sent in to the nonpublic schools * *" and (2) that Title I funds have been approved by the state for use "to transport the nonpublic school child from the nonpublic school to the public school for * * * after school services or Saturday services * * *." Clearly, the use by the state of public funds to provide textbooks (Paster v. Tussey, 512 S.W.2d 97, 104 (Mo.banc 1974)) for use in parochial schools, or to provide transportation (Mo.Const. Art. IX, § 8; McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 (Mo.banc 1953)) for parochial school students, is impermissible under the constitution of this state.
This and other evidence to which defendants refer, developed in cross-examination of one of plaintiffs' witnesses, is, as we understand it, presented in the context of what had been approved by the state in previous plans according to the State Board's understanding of what was "approvable" under the Act and Missouri law and what had been approved by the state in the present plan according to the State Board's understanding of what was "approvable" under the Act and decisions of federal courts. It is not at all clear from the testimony of this witness whether he was speaking of previously-approved plans which had been "disapproved" by the federal courts or the present existing plan when he referred to (1) funds used for books and other materials, and (2) funds approved for use for transportation.
We conclude that there is no substantial evidence in this record to support the injunctive relief sought by defendants.
*563 The trial court did not err in denying the rather broad declaratory relief sought by defendants, and we decline to do so, because what is said herein is sufficient to dispose of the issues raised in both the petition and the counterclaim.
The judgments on plaintiffs' claim and defendants' counterclaim are affirmed.
SEILER, C. J., and MORGAN, HOLMAN and DONNELLY, JJ., concur.
FINCH, J., dissents in separate dissenting opinion filed.
BARDGETT, J., dissents and concurs in separate dissenting opinion of FINCH, J.
FINCH, Judge (dissenting).
I respectfully dissent. I would hold that money received by the State of Missouri from the federal government under the provisions of Title I of the Elementary and Secondary Education Act of 1965 (hereinafter Title I) for use in meeting the special educational needs of educationally deprived children in areas with a concentration of children from low-income families does not become "money donated to a state fund for public school purposes" or "public funds" of Missouri subject to the spending proscriptions of the Missouri Constitution applicable to funds properly so classified.
The conclusion in the principal opinion that Mo.Const. Art. I, § 7, Art. IX, § 5, Art. IX, § 8, and perhaps other sections thereof, are applicable to the use of these Title I funds is based on its holding that when received and deposited in the state treasury, they lose their character as federal funds granted to the state for redistribution for the specific purposes for which they were awarded and assume the character of state funds subject to all of the restrictions and limitations imposed by the Missouri Constitution on the appropriation and use of regular state public funds. In so deciding, the principal opinion first finds that such Title I funds constitute "money donated to a state fund for public school purposes". The quoted words are contained in Mo.Const. Art. IX, § 5, and it is obvious from the opinion, as well as from respondents' brief wherein this proposition was advanced, that under the principal opinion these Title I funds are subject to Art. IX, § 5. However, the principal opinion overlooks the fact that if this were true, said constitutional provision would require that such Title I funds be invested and only the income therefrom used. Such utilization of this money would not be in accord with Title I and is not how these funds actually are handled. I submit that these Title I funds are not subject to Art. IX, § 5, because they are not "money donated to a state fund for public school purposes". Instead, they are funds granted the respondents for distribution to local educational agencies for use in a plan which, as the principal opinion recognizes, "must be designed to provide * * * that eligible children enrolled in private schools have the opportunity to participate in Title I programs comparable to those provided like children in the public schools of its area".
The principal opinion also speaks of these Title I funds becoming "public funds" of Missouri, but I find no authority cited which compels or even supports that conclusion. The legislature has not so treated them. Instead, it has recognized that these Title I funds remain federal funds which are received by respondents for the purpose of being distributed and used in accordance with the terms of the Act. To illustrate, an appropriation bill covering appropriation of these funds to the State Board of Education provided as follows:
"Section 2.360. To the State Board of Education
All allotments, grants and contributions of funds from the federal government, paid into the State Treasury under the provisions of the Elementary Secondary Act, Title I, II and VI for the purpose of administration and distribution to schools
From Federal Funds" Laws 1969, p. 10.
Obviously, the legislature did not consider that when these Title I funds were received from the federal government and placed in the state treasury they were thereby converted to general state public funds. They were not so appropriated.
*564 That there is a distinction between state funds and federal money received and distributed by the state (as in the case of Title I funds) and that such federal funds are not subject to constitutional constraints imposed by the Missouri Constitution on Missouri public funds is made crystal clear by Art. III, § 38(a) of the present Missouri Constitution which provides as follows:
"The general assembly shall have no power to grant public money or property, or lend or authorize the lending of public credit, to any private person, association or corporation, excepting aid in public calamity, and general laws providing for pensions for the blind, for old age assistance, for aid to dependent or crippled children or the blind, for direct relief, for adjusted compensation, bonus or rehabilitation for discharged members of the armed services of the United States who were bona fide residents of this state during their service, and for the rehabilitation of other persons. Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States."
During extended debate in the constitutional convention on this section, there was an attempt to delete by amendment what is now the last sentence of Art. III, § 38(a). It is apparent from those proceedings that the sponsors of what is now the second sentence of § 38(a) intended thereby to recognize that money would be available to the state from the federal government for redistribution and use for purposes specified by the federal government, some of which might not even be foreseeable at the time of the constitutional convention and which might even be impermissible by means of state funds, and that it was intended by the second sentence of § 38(a) to permit the state to receive and redistribute such federal funds for the purposes specified by the federal government. Receipt thereof is not made mandatory, of course, and the state would be free to decline to accept them. If accepted, however, the distribution of those federal funds was not to be subject to limitations imposed by the Missouri Constitution on the appropriation and use of Missouri's own public funds.
This court has recognized that funds received for a specific purpose but deposited in the state treasury do not thereby automatically become money "belonging to the state" or state funds which are subject to constitutional proscriptions as to its use. In State ex rel. Stevenson v. Stephens, 136 Mo. 537, 37 S.W. 506 (1896), the question was whether $100,000 deposited in the state treasury for the narrow purpose of protecting investors in certain companies was money "belonging to the state" and, hence, subject to various constitutional restrictions such as those relied upon by respondents herein. A state statute required that such funds be deposited with the state treasurer. Holding that these funds were not state funds subject to constitutional limitations, the court, in discussing constitutional provisions alleged to be applicable, said at 509:
"It is manifest that these provisions only apply to money `belonging to the state.' The money in question, though it was deposited with the treasurer, was for the specific purpose of making good the security intended for the protection of those dealing with bond investment companies, and was not money belonging to the state, within the meaning of the constitution."
See also Board of Public Buildings v. Crowe, 363 S.W.2d 598 (Mo.banc 1962); State ex rel. St. Louis Police Relief Ass'n v. Igoe, 340 Mo. 1166, 107 S.W.2d 929 (1937); State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698 (banc 1924).
That there is a difference between state funds and federal funds earmarked for specific purposes which the state receives and distributes is implied by the language used by this court in its opinion in Paster v. Tussey, 512 S.W.2d 97 (Mo.banc 1974), when it said at 105: "This case involves the expenditure of `state' funds and not the expenditure of `federal' funds." If, as the principal opinion concludes, Title I federal funds become state funds when received *565 and deposited in the state treasury, there would have been no occasion for a comment such as that made in Paster.
As previously indicated, in my view it is clear that even without Art. III, § 38(a) these federal funds, received for distribution and use in accordance with Title I, do not become public funds of Missouri and are not subject to constitutional constraints imposed on the appropriation and use of Missouri's own public funds. This conclusion is made even more inevitable by the last sentence of Art. II, § 38(a), when, as here, we deal entirely with federal funds. I should point out that in so concluding, I would not reach or express any opinion on whether that sentence would have the effect of freeing "public money of this state", when added to federal money, from other constraints contained in the Missouri Constitution. That question is not before us in this case as we deal with Title I funds only. Such an issue can be briefed and decided if and when a case involving that issue is presented. I would hold only that Art. III, § 38(a) permits receipt and distribution of federal money free of constraints imposed by our constitution on the use of Missouri's public funds.
Having concluded that Title I funds do not become "state funds" or "money donated to a state fund for public school purposes" and are not subject to the constraints of the Missouri Constitution on state public funds, I would so tell the respondents in their declaratory action. I would rule that they are free to implement a plan for administering Title I funds pursuant to the requirements of that act without being bound by the restrictions imposed by the Missouri Constitution on the use of Missouri's public funds. As pointed out in Wheeler v. Barrera, 417 U.S. 402, 94 S.Ct. 2274, 41 L.Ed.2d 159 (1974), modified, 422 U.S. 1004, 95 S.Ct. 2625, 45 L.Ed.2d 667 (1975), and in Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976), it is incumbent on Missouri, and more particularly respondents, to devise a program which will provide for private school children a program for utilization of Title I funds which is comparable to the program provided for public school children. Various possible alternatives are discussed in the foregoing decisions, the decision in the Eighth Circuit suggesting the possibility that abandonment of such program in Missouri may be necessary if satisfactory comparable programs cannot or are not devised. Of course, whether such plan, when proposed, complies with the requirements of Title I will continue to be, as it has been throughout this extended litigation, a federal question to be decided by the federal courts.
NOTES
[1] 20 U.S.C. § 241a, et seq.
[2] "Local educational agency" is defined in 20 U.S.C., § 244(6)(B), as follows: "The term `local educational agency' means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. Such term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school * * *." See also 45 CFR, § 116.1(4) (1973).
[3] The quotations are from 20 U.S.C., § 241a, declaring the policy of the United States.
[4] A state educational agency is defined in 20 U.S.C. § 244(7), to mean "the officer or agency primarily responsible for the State supervision of public elementary and secondary schools."
[5] See also: Barrera v. Wheeler, 441 F.2d 795 (8th Cir. 1971); Barrera v. Wheeler, 475 F.2d 1338 (8th Cir. 1973).
[6] Mo.Const. Art. IX, § 1(a).
[7] Mo.Const. Art. IX, § 8.
[8] Mo.Const. Art. IX, § 2(a); § 161.092(2), RSMo 1969.
[9] See footnote 8.
[10] Mo.Const. Art. III, § 36 provides, in part: "All * * * money received by the state shall go into the treasury * * *." See also: Art. IV, § 15, providing, in part: "All * * * moneys received by the state from any source whatsoever shall go promptly into the state treasury, and all interest, income and returns therefrom shall belong to the state * * *." See also: Art. IX, § 5, which provides, in part: "[A]ll moneys * * * donated to any state fund for public school purposes * * * shall be paid into the state treasury * * *." See also: § 166.011, RSMo 1969.
[11] Section 38(a) reads, in part, as follows: "Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States."
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403 F.2d 425
UNITED STATES of America ex rel. Rex STERLING, Petitioner-Appellee,v.Frank J. PATE, Warden, Illinois State Penitentiary, Respondent-Appellant.
No. 16749.
United States Court of Appeals Seventh Circuit.
November 21, 1968.
William G. Clark, Atty. Gen., of Illinois, A. Zola Groves, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant; John J. O'Toole, Asst. Atty. Gen., of counsel.
Joseph E. McHugh, Chicago, Ill., for petitioner-appellee.
Before CASTLE, Chief Judge, and KILEY and SWYGERT, Circuit Judges.
CASTLE, Chief Judge.
1
The respondent-appellant, Frank J. Pate, Warden, Illinois State Penitentiary, prosecutes this appeal from the December 20, 1967, order of the District Court granting the petition of Rex Sterling, petitioner-appellee, for a writ of habeas corpus, and ordering the petitioner discharged.
2
The petitioner was convicted on November 23, 1931, in the Circuit Court of Montgomery County, Illinois, on his plea of guilty to burglary and larceny. He is serving a sentence of from one year to life as a result of that conviction. In his petition he alleges, inter alia, that he was unattended by his court-appointed counsel at the trial held on November 23, 1931, at which time he changed his plea to a guilty plea upon which he was convicted and sentenced. The District Court, after an evidentiary hearing, found such to be the case1 and ordered the petitioner discharged.
3
In this connection the District Court found:
4
"* * * that on November 9, 1931, Rex Sterling was arraigned before the Honorable Paul McWilliams, Judge of the Circuit Court of Montgomery County, Illinois, on a charge of burglary and larceny pursuant to indictment No. 7861. Appearing on behalf of the People of the State of Illinois was Lester K. Vandever, States Attorney. At said time and place, Rex Sterling asked the presiding judge to appoint an attorney. Thereupon, Clark R. Missimore was appointed attorney to represent Rex Sterling and the matter was continued to November 23, 1931, for purposes of trial; that on November 23, 1931, the matter was called for trial and Judge Paul McWilliams was advised that Clark R. Missimore was not in Court and would not be able to represent Rex Sterling. Thereupon, a request was made by Rex Sterling to appoint a new attorney, which request was objected to by the States Attorney. Leave was given to the States Attorney to discuss the matter with Rex Sterling. Thereafter the plea of Not Guilty was withdrawn and a plea of Guilty was entered by Rex Sterling without the benefit of the advice of his attorney, Clark R. Missimore, or by any other attorney."
5
The petitioner relies on these critical factual findings as compelling affirmance of the District Court's order discharging him. In this respect petitioner points to our recognition in United States ex rel. Gates v. Pate, 7 Cir., 355 F.2d 879, 881, that:
6
"It is axiomatic that this Court will not set aside the District Court's findings of fact unless they are clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure. This rule is applicable to review of habeas corpus as well as other cases."
7
But the fact that there is evidence to support the District Court's factual findings, and thus preclude them from being characterized as "clearly erroneous", requires affirmance only if the court also applied the court legal criteria in reaching its ultimate conclusion.
8
The factual findings above set forth are based on the petitioner's version of what occurred on November 23, 1931, the day of his trial, as related by him in his testimony before the District Court, and on the fact that the mittimus2 issued by the clerk of the state court to the sheriff directing that the defendant be taken from the bar of the court and delivered for incarceration states that on November 23, 1931, the defendant appeared before the court "in his own proper person unattended by counsel". But the mittimus is not a part of the common law record. People v. Valentino, 354 Ill. 584, 188 N.E. 825; People v. Stacey, 372 Ill. 478, 24 N.E. 2d 378. And, the duly certified copy of the common law record in the state court criminal proceeding, filed in the District Court pursuant to leave of court and admitted in evidence as a respondent's exhibit, recites that on November 23, 1931, the defendant appeared in "open court as well in his own proper person as by C. R. Missimore, his attorney". Moreover, Attorney Missimore testified in the District Court that he was so present in the state court representing the petitioner during the November 23, 1931, proceeding which culminated in petitioner's change of plea, conviction, and sentencing.
9
The duly certified common law record prevails in case of variance between it and the mittimus. Cf. People v. Stubblefield, 391 Ill. 609, 63 N.E.2d 762.
10
Although during the closing arguments before the District Court the trial judge, in a colloquy with counsel, recognized that he was confronted with the problem of "whether or not by parol evidence you can alter a certified record under Illinois law," it appears from the same colloquy that in proceeding to enter the judgment order discharging the petitioner the court, rather than resolving that issue, relied on what it characterized as "areas of uncertainty about the memory of the witness [Missimore]" which "do not in any way cause his testimony to contradict substantially the testimony of the petitioner". Acceptance of such characterization of Missimore's testimony, and treatment of the court's conclusion based thereon as an appraisal of the weight of the evidence or as a credibility resolution, are, nevertheless, of no aid to petitioner.
11
It is apparent that the District Court applied an incorrect legal standard when it accepted the testimony of the petitioner, coupled with the recital in the mittimus, to impeach the verity of the certified common law record of the criminal proceeding. It has been consistently held in habeas corpus proceedings that the record of the trial court in the underlying criminal proceeding is not open to collateral attack, but that such record imports absolute verity and may not be so impeached. Thus, with respect to the judgment reflected by the record in a criminal proceeding, it was cogently observed in Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283:
12
"If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. People ex rel. Trainor v. Baker, 89 N.Y. 460, 466. But the judgment imports verity when collaterally assailed. Ibid. Until corrected in a direct proceeding, it says what it was meant to say, and this by an irrebuttable presumption. In any collateral inquiry, a court will close its ears to a suggestion that [the record is inaccurate]".
13
To the same effect see: Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Ex parte Craig, 2 Cir., 282 F. 138; Braun v. United States, 9 Cir., 16 F.2d 118, 80 Ct.Cl. 211; Farnsworth v. Zerbst, 5 Cir., 98 F.2d 541; Thomas v. Hunter, 10 Cir., 153 F.2d 834; Williams v. Huff, 79 U.S.App.D.C. 31, 142 F.2d 91.
14
Braun v. United States, supra, was a habeas corpus proceeding in which the petitioner denied that he had entered a plea of guilty. It was there stated (16 F.2d 118):
15
"* * * but this [the denial of having entered a guilty plea] is not permissible. A record of conviction cannot be impeached in that way. If as a matter of fact, the record on the criminal trial did not speak the truth, it was the duty of the appellant to apply to that court for its correction * * *. Having failed to do this, he is now precluded from impeaching the record in a collateral proceeding, such as this."
16
In our opinion it is firmly established that if the state court record of petitioner's criminal conviction fails to speak the truth he should seek to correct it in a proceeding filed in the Montgomery County circuit court for that purpose3 — and he may not do so in a federal habeas corpus proceeding by way of collateral attack on the state court's certified record.
17
The District Court applied an impermissible legal standard — one involving collateral impeachment of a certified state court criminal record — in ordering the discharge of the petitioner.
18
Accordingly, the judgment order from which this appeal is taken is reversed.
19
Reversed.
Notes:
1
The District Court rejected a proposed finding submitted by petitioner that the prosecutor at the state court trial told petitioner "that if he persisted in his plea of Not Guilty that a `very stiff sentence' would be imposed for night-time burglary, but if [petitioner] would change his plea from Not Guilty to Guilty, that a sentence of no longer than one year would be imposed"
2
The mittimus was admitted in evidence as a petitioner's exhibit
3
The Illinois decisions recognize that the court in which the criminal proceeding was had has jurisdiction to correct or amend its record to rectify, nunc pro tunc, any clerical misprision where the correction or amendment is based on some official note or memorandum or memorial paper remaining in the files of the case or upon the record of the court. Gore v. People, 162 Ill. 259, 44 N.E. 500; Hubbard v. People, 197 Ill. 15, 63 N.E. 1076; People v. Petrie, 294 Ill. 366, 128 N.E. 569; People v. Barnwell, 296 Ill. 67, 129 N.E. 538; People v. Weinstein, 298 Ill. 264, 131 N.E. 631; People v. Knight, 308 Ill. 182, 139 N.E. 47; People v. Fulimon, 308 Ill. 235, 139 N.E. 396; People v. Duyvejonck, 337 Ill. 636, 169 N.E. 737; People v. Cobb, 343 Ill. 78, 174 N.E. 885; People v. Ambolo, 343 Ill. 480, 175 N.E. 776; People v. Wos, 395 Ill. 172, 69 N.E.2d 858; People v. Flannigan, 398 Ill. 55, 74 N.E.2d 801
20
KILEY, Circuit Judge (dissenting).
21
I respectfully dissent. I agree that generally the record of a trial court cannot be impeached in a habeas corpus proceeding, and that the petitioner ought to first seek to correct the record by appropriate proceeding in the sentencing court. But that rule presupposes a record "fair upon its face," Braun v. United States, 16 F.2d 118 (9th Cir. 1926), and a petitioner making a claim inconsistent with the record, Riddle v. Dyche, 262 U.S. 333, 336, 43 S.Ct. 555, 67 L.Ed. 1009 (1923).
22
However, in the case before us, there is in evidence the judge's handwritten docket entry of the 1931 Sterling trial which does not state that attorney Missimore was in attendance when Sterling pleaded guilty. There are typewritten notes, author not disclosed, of the Sterling trial indicating that Missimore was present; and the mittimus of November 25, 1931, certified by the circuit court clerk, which has stricken the word "attended" before "by counsel" and has the word "unattended" typed in.
23
Admittedly, the mittimus is not part of the common law record, but the record itself cannot be said to be "fair on its face" with respect to whether Sterling's attorney was present when the guilty plea was entered. And if the attorney was not present, Sterling was denied a constitutional right which "ousted" the circuit court of jurisdiction. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938), the court held that under the Sixth Amendment a federal court did not have jurisdiction to hear a criminal case where the defendant was not represented by counsel. This rule was applied against the states through the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963). In United States ex rel. Craig v. Myers, 329 F.2d 856 (3d Cir. 1964) the court applied the Gideon rule retroactively in a habeas corpus proceeding. Therefore Sterling's petition claimed a want of jurisdiction and accordingly the district court could "look beyond the record of his conviction * * * to test the jurisdiction of the state court to proceed to judgment against him." Frank v. Mangum, 237 U.S. 309, 331, 35 S.Ct. 582, 588, 59 L.Ed. 969 (1915).
24
In Williams v. Huff, 79 U.S.App.D.C. 31, 142 F.2d 91 (1944), the record showed the "boy" petitioner was advised of his right to counsel, asked whether he wanted counsel, and said he did not. But, because the record did not show the boy's waiver was competent and intelligent, the court reversed the judgment dismissing the habeas proceeding. In Thomas v. Hunter, 153 F.2d 834 (10th Cir. 1946), the record specifically recited that at sentencing petitioner was represented by counsel. This, said the court, precluded parol testimony to the contrary. But because the record was silent as to the attorney's presence when verdict was returned, the court — anticipating Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963) — decided that petitioner should have been given an opportunity to prove his allegation that his attorney was not present at that stage of the trial, and remanded for further proceedings.
25
Here the common law record is ambiguous. Sterling alleges denial of a constitutional right which goes to the integrity of the trial, and the alleged denial raises a jurisdictional question. In United States ex rel. Baldridge v. Pate, 371 F.2d 424 (7th Cir. 1966) — a case similar to the one now before us — we noted, in absolving petitioner of any expense in the hearing ordered, "the apparent failure so far of the state [Illinois] court records to determine the issue conclusively."
26
In my view the district court properly considered parol testimony on the issue here, and was within its discretion — on the testimony here — in determining credibility questions in favor of Sterling.
27
I would accordingly affirm.
| {
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212 F.3d 296 (5th Cir. 2000)
J.R. RIDGLEY WYVILL Plaintiff/Appellee/Cross-Appellant,v.UNITED COMPANIES LIFE INSURANCE COMPANY; UNITED COMPANIES FINANCIAL CORPORATION, Defendants/Appellants/Cross-Appellees,UNITED COMPANIES LENDING CORPORATION, Appellant/Cross-Appellee.GERALD W. WALDROP, Plaintiff/Appellee/Cross-Appellant,v.UNITED COMPANIES FINANCIAL CORPORATION; UNITED COMPANIES MORTGAGE OF GEORGIA, Defendants/Appellants/Cross-Appellees,UNITED COMPANIES LENDING CORPORATION, Appellant/Cross-Appellee.
No. 98-30287
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
May 31, 2000
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Middle District of Louisiana
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
1
Appellant United Companies appeals from the judgment of the district court, entered upon a jury verdict, awarding substantial damages to two former employees under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Unfortunately, the verdict depends on evidence that this court and others have held inadmissible to support an inference of age discrimination. In particular, the district court allowed the plaintiffs to saturate the record with testimony pertaining to other employees in other branches of the company who held different positions under different supervisors and were terminated at different times. Shorn of this and other irrelevant evidence, the judgment cannot stand.
I. BACKGROUND
2
Gerald Waldrop began work with United Companies Lending Corporation (the "Lending Company"), a subsidiary company of defendant United Companies Financial Corporation ("United Companies"), in1983 as branch manager in Dalton, Georgia.1 Waldrop's duties included the production of a certain number of loans per month, ensuring that branch staff adequately processed new and existing loans, collecting loans to minimize delinquency rates, and maintaining balanced escrow logs. From 1991 to 1993, the period relevant to this litigation, Waldrop supervised four employees: Sandy Stafford, who was assistant manager; Pat McMillan; Cheryl Welch; and Pat Little. During this period, Waldrop was supervised by D.C. Brantley, who was two years older than Waldrop, and Brantley was in turn supervised by Joe Phillips. Waldrop was terminated from his job in January 1993 when he was forty-seven years old.
3
According to United Companies, Waldrop's relationship with Brantley began to deteriorate in 1990. Waldrop struck Brantley in the back of the head at a Company function, calling him a son-of-a-bitch, and threatening to "whip his ass" if he ever came to Dalton. When United Companies dismissed Waldrop's son in early 1991, the discord between Waldrop and Brantley escalated. During a telephone conversation among Waldrop, Brantley and Phillips, Waldrop allegedly threatened Brantley with physical harm and told him to keep out of the dispute. Waldrop's insubordination became so intolerable that Brantley sent a memorandum to Phillips asking to be relieved from supervision of the Dalton branch.
4
Waldrop also had problems with the Dalton branch employees. His abusive behavior towards staff and customers was brought to the attention of William S. Spann, Jr., United Companies' Director of Human Resources, by Sandy Stafford.
5
In May 1991, Waldrop was given a six-week paid leave of absence. Waldrop contends that medical problems associated with his diabetes forced this leave, while United Companies argues that the leave was necessitated by Waldrop's problems in the office and with his supervisor. Upon Waldrop's return, his relationship with his staff did not improve. In the fall of 1991, he brought both Stafford and Welch to tears after separate outbursts. In November 1991, Spann and Phillips reprimanded Waldrop and made him apologize to his employees.
6
A year later, two of the Dalton branch employees -- McMillan and Welch -- left the Lending Company. In post-resignation letters to Spann, they blamed Waldrop's behavior for their departures. After receiving these letters, Spann called McMillan, Welch, and Stafford and discovered that Waldrop's behavior had not improved. He discussed Waldrop's behavior with Phillips and they decided to terminate Waldrop. Spann (age 47), Phillips (age 45), and Brantley (age 49) attended the meeting at which Waldrop was dismissed.
7
Waldrop does not dispute these events. Rather, he points out that throughout his employment, he and his branch were consistently among the top ten performers in the Lending Company, in terms of quantity and profitability of the loans produced. He also asserts that new employees were often sent to him for training and that several of his assistant branch managers became successful managers of their own branches. In addition, he offered evidence that Stafford and McMillan visited his home after his termination, Stafford to ask for his blessing in succeeding him as branch manager, and McMillan to show him her grandchild. Waldrop contends that these visits were not the actions of employees afraid of or antagonized by an abusive and rude boss.
8
J.R. Ridgley Wyvill began employment with United Companies Life Insurance Company (the "Life Company"), a subsidiary of United Companies, in 1978. From 1980 until his dismissal in February 1993,Wyvill managed the credit life department in Baton Rouge, Louisiana. He was supervised by Lindsay Seals, an executive vice-president of the Life Company, who in turn reported to Gary Warrington, the president of the Life Company.
9
In January 1993, Wyvill made several allegedly disruptive phone calls to employees of the Lending Company about Waldrop's termination. Carl Scott, a Lending Corporation branch manager in Nashville, heard from Wyvill on January 29, 1993, three days after Waldrop had been fired. Wyvill informed Scott that United Companies "had gotten the Chief," referring to Waldrop, and he warned Scott to "watch his backside." Scott testified that he did not know Wyvill before this call and that the call upset him. He reported the call to Phillips.
10
The second call was made to Sandy Stafford, Waldrop's assistant manager. Like Scott, Stafford did not know Waldrop and had only met him on two previous occasions during her nine years with United Companies. Stafford was being considered as a replacement for Waldrop, and Wyvill warned her that if she took the position, she would be taking "blood money." Later, Wyvill called Stafford again and asked her to lie to United Companies management who were investigating his telephone calls. Stafford refused.
11
According to Wyvill, he placed these calls at the behest of Tee Brown, Jr., the son of Terrell Brown, Sr., the CEO of United Companies. The younger Brown wanted Wyvill to investigate an underground newspaper at United Companies, The Unlink, that had been critical of United Companies management.
12
Upon receiving Scott's report about Wyvill's phone call, Phillips pulled the telephone record of calls made from Wyvill's office and discovered that Wyvill had placed phone calls to several former employees who had been terminated or had left under unpleasant circumstances. Phillips notified Spann about these calls, and Spann and Roger Clark, the president of the Lending Corporation, called Stafford and were told about Wyvill's phone call to her.
13
A meeting was then held, attended by United Companies senior management and Wyvill, where Wyvill was questioned about the nature of his calls. Wyvill did not mention that the calls were part of his investigation into The Unlink. Finding Wyvill's explanations insufficient, Wyvill's direct supervisors, Seals (age 58) and Warrington (age 53), with the agreement of the assembled managers, terminated him effective February 1, 1993. Wyvill was fifty-three years old.
14
According to Wyvill, his silence with regard to The Unlink investigation was meant to protect Tee Brown. Wyvill later produced testimony that when Brown, Sr. discovered that his son had put Wyvill up to the calls, he paid Wyvill $5000 to "leave quietly."
15
Both Wyvill and Waldrop sued their former employers. Their cases were consolidated over the dissent of United Companies. After procedural skirmishing and a mistrial followed by a six-day trial, the jury returned a verdict finding that the plaintiffs had been discriminated against because of their age and that the discrimination had been willful. The jury awarded Waldrop $76,569.00 in back pay and Wyvill $186,939.00 in back pay. The district court entered judgment on the jury's verdict, effectively doubling each man's back pay award because of the finding of wilfullness. 29 U.S.C. § 626(b). Front-pay to Wyvill, pre-judgment interest, and attorneys' fees were added to the judgment.
16
United Companies appeals, renewing its arguments, properly preserved in the district court, that the verdict was not supported by substantial evidence and that the district court erred in admitting testimony about and from former United Companies employees who were not similarly situated to either Wyvill or Waldrop. In addition, United Companies appeals, and Wyvill and Waldrop cross-appeal, variousissues relating to damages. Because we reverse for evidentiary errors and insufficient proof of liability, we do not reach the parties' other arguments.
II. DISCUSSION
A. Standard of Review
17
We review the district court's denial of a motion for judgment as a matter of law de novo. Scott v. Univ. of Miss., 148 F.3d 493, 503 (5th Cir. 1998). "'A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to the legal sufficiency of the evidence.'" Id., quoting Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997). Jury verdicts are considered under the standards established in Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)(en banc), viewing all the evidence and drawing all reasonable inferences in the light most favorable to the verdict. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996)(en banc), citing Boeing, 411 F.2d at 374.
18
Under Boeing, there must be a conflict in substantial evidence to create a jury question. Scott, 148 F.3d at 504. "Substantial evidence is defined as 'evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.'" Rhodes, 75 F.3d at 993, quoting Boeing, 411 F.2d at 374. "A mere scintilla of evidence is insufficient to present a question for the jury." Boeing, 411 F.2d at 374.
B. Analysis of Plaintiffs' Claims
19
In the absence of direct proof of discrimination, the plaintiff in an age discrimination case must follow the three-step burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). United Companies argues that Wyvill and Waldrop failed to set out the McDonnell/Douglas-Burdine prima facie case of age discrimination, and their claims should be dismissed. However, because this case has been fully tried on the merits, we "need not address the sufficiency of [plaintiffs'] prima facie case, and may instead proceed directly to the ultimate question of whether [plaintiffs] have produced sufficient evidence for a jury to find that discrimination has occurred." Atkin v. Lincoln Property Co., 991 F.2d 268, 271 (5th Cir. 1993)(quotations omitted).
20
The critical issue is thus whether Waldrop and Wyvill produced sufficient evidence that United Companies' explanation for their discharges was merely a pretext for age discrimination. In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996)(en banc), the Fifth Circuit discussed the burden confronting an ADEA plaintiff trying to prove pretext:
21
[A] jury issue will be presented and a plaintiff can avoid summary judgment and judgment as a matter of law if the evidence taken as a whole (1) creates a fact issue as to whether each of the employer's stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which the plaintiff complains. The employer, of course, will be entitled to . . . judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory.
22
Rhodes, 75 F.3d at 994. United Companies argues that plaintiffs did not meet this burden, and we agree. Having comprehensively reviewed the evidence, we conclude that while plaintiffs' evidence may have cast doubt on the proffered explanations for their firing or on the soundness of the company's business decision, it was insufficient to show that the real reason was age discrimination.
C. Plaintiffs' Evidence of Pretext
1. Anecdotal Evidence
23
Plaintiffs strongest age-related evidence was "anecdotal" testimony from former United Companies employees that United Companies had a "pattern and practice" of discriminating against older workers. This evidence included witnesses' subjective beliefs that they and others had been terminated on account of age. United Companies argues that these anecdotal accounts of discrimination should have been excluded as incompetent to support a claim of pattern or practice discrimination. We agree.
24
A trial judge's ruling on the admissibility of evidence is generally reviewed for an abuse of discretion. Mooney v. Aramco Services Co., 54 F.3d 1207, 1220 (5th Cir. 1995). "We will not reverse a district court's evidentiary rulings unless they are erroneous and substantial prejudice results. The burden of proving substantial prejudice lies with the party asserting error." Id., quoting FDIC v. Mijalis, 15 F.3d 1314, 1318-19 (5th Cir. 1994).
25
Plaintiffs introduced anecdotal testimony from and about former employees in an effort to show that United Companies, a company of 2700 employees, had a "pattern or practice" of discriminating against older workers. A "pattern or practice" of discrimination does not consist of "isolated or sporadic discriminatory acts by the employer." Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). Rather, as the Supreme Court has explained, "it must be established by a preponderance of the evidence that '[the impermissible] discrimination was the company's standard operating procedure -- the regular rather than the unusual practice." Cooper, 104 S.Ct. at 2799 (citations omitted). Often, an illegal pattern and practice is revealed with statistical proof.
26
Anecdotes about other employees cannot establish that discrimination was a company's standard operating procedure unless those employees are similarly situated to the plaintiff. Mooney, 54 F.3d at 1221. This court and others have held that testimony from former employees who had different supervisors than the plaintiff, who worked in different parts of the employer's company, or whose terminations were removed in time from the plaintiff's termination cannot be probative of whether age was a determinative factor in the plaintiff's discharge. See id.2
27
In this case, the plaintiffs' anecdotal evidence did not involve similarly situated employees. With regard to Wyvill, none of the former employees who testified or who were testified about worked in the Life Company. The Life Company was a separately incorporated entity with different management independent from the Lending Company. None of the former employee witnesses was supervised by either Lindsay Seals or Gary Warrington, Wyvill's supervisors. None of the former employees was terminated under circumstances similar to Wyvill's. It is true that several of the former employees could testify to their relationship with Bill Spann, who participated in firing Wyvill. But this single coincidence between Wyvill's experience and that of the anecdotal witnesses could not render them similarly situated.
28
Regarding Waldrop, none of the witnesses were branch managers in the Lending Company and none had been supervised by D.C. Brantley within a reasonable time of Waldrop's termination in 1993. Jim Davis, for example, was a regional vice-president of the Lending Company with duties that included supervision of sixty-five branch offices. He reported to Joe Phillips, and he testified that Phillips and Bill Spann terminated him after first demoting him to branch manager. The stated reasons for Davis's termination -- a "lack of chemistry" and a failure to meet production quotas -- were different from the explanation behind Waldrop's discharge -- rude and abusive conduct toward staff and customers. The only link between Davis and Waldrop was the role of Joe Phillips in their respective terminations, but this alone hardly furnishes a probative guide to Waldrop's experience with United Companies. It would be particularly odd to view Phillips's role as incriminating the Lending Company since he, too, testified for Waldrop that he was a victim of age discrimination.
29
Phillips was as dissimilar to Waldrop as Davis was, making his testimony equally irrelevant. He held a different job, regional vice-president, and he reported to a different supervisor, Roger Clark. Witnesses Garold Cooke and Floyd Desormeaux were likewise dissimilar to Waldrop. Cooke, who reported to Phillips, was an area supervisor of seven branch offices in the Lending Company, and Desormeaux was a vice-president of the Lending Company. Although all these witnesses seem to have been similarly situated among themselves as senior managers with United Companies, nothing about their experiences connected with Waldrop. They held different jobs than Waldrop, executed different duties, and were accountable to different supervisors. We have excluded such testimony in the past as irrelevant in supporting a "pattern or practice" claim, and we must do so again here. See Mooney, 54 F.3d at 1221.3
30
By admitting this evidence, the district court substantially prejudiced United Companies, forcing it to respond to each witness's claims, and creating, in effect, several "trials within a trial." See Mooney, 54 F.3d at 1220-1221 (quoting the district court's opinion that anecdotal testimony forced the defendant to litigate more than the claims actually set for trial). As we have seen, these mini-trials were not probative on the issue of whether Waldrop or Wyvill faced discrimination. See Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir. 1990)(holding that the introduction of alleged discriminatory acts with no relation to the discrimination claimed by the plaintiff creates "mini-trials" with no probative value).
31
The prejudice worked by this testimony was all the greater because of the mini-trials' effectiveness. As noted above, the anecdotal witnesses all held similar senior level positions with the Lending Company and could be said to have been similarly situated to one another. In addition to contending that they had suffered from age discrimination, the witnesses claimed personal knowledge of the events surrounding each other's terminations. Their testimony would have been relevant if they had been plaintiffs, but they were not, and the fact that these witnesses made each other's case so well distracted attention from the fact that they had little to say about Wyvill's and Waldrop's terminations.4
32
Given the plaintiffs' inability to offer any direct evidence of age discrimination, this parade of anecdotal witnesses, each recounting his own, entirely unrelated contention of age discrimination at the hands of the defendant, substantially prejudiced United Companies. This evidence should have been excluded, and we hold that the district court abused its discretion in not doing so.
2. Age-Based Comments
33
Plaintiffs also relied on several age-related comments made by United Companies CEO Terrell Brown, Sr. as proof that age-bias motivated the terminations here. Former employee Jim Davis testified that "[Brown, Sr.] felt that . . . the world had passed [some of the older employees] by, that [the older employees] were just too old to get the job done, and that we should either find another position for them or terminate them." Former employee Joe Phillips testified that "in the early nineties, [Brown, Sr.] told me that he wanted the company to be mean and lean, and he wanted to go to a young, aggressive group of people." Phillips further testified that Brown, Sr. generally wanted to "get rid of the people that were [currently employed at United Companies] so that we can make more money, be more aggressive, more productive." Former employee Garold Cooke testified that Brown Sr. "wished [the older men in corporate headquarters] would go away so that [Brown, Sr.] could get some new blood in the company."
34
Assuming, as plaintiffs allege, that Brown, Sr. was one of the decision-makers in the terminations of Wyvill and Waldrop, his "stray remarks" are insufficient to create an inference of age discrimination.5 See, e.g., Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993); Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992). In order for an age-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was a determinative factor in the decision to terminate the employee. Equal Employment Opportunity Commission v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996), citing Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993). Brown's remarks do not satisfy this test. They are neither direct and unambiguous, nor were they tied to a time frame relevant to this case. These remarks were not probative on the ultimate question of age discrimination against Waldrop and Wyvill.
3. Disparate Treatment Claim
35
In addition to anecdotal evidence concerning other employees, Waldrop argued that he was treated more harshly than a similarly-placed younger employee. Waldrop contrasted his fate with that of Dwayne Burks, an area supervisor in North Carolina until 1996, who was also guilty of abusive and rude conduct to staff and employees but did not lose his job as a result. To establish a claim of disparate treatment, Waldrop must show that United Companies gave preferential treatment to a younger employee under "nearly identical" circumstances. Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991), citing Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990)(per curiam). Waldrop did show that Burks was younger (he was in his thirties), that Burks was abusive and rude to United Companies employees, and that there was significant employee turnover in the offices supervised by Burks. He also proved that Burks was demoted rather than fired for his misconduct.
36
But the striking differences between the two men's situations more than account for the different treatment they received. To begin with, Burks held a different job than Waldrop. Burks's employment problems also differed from Waldrop's. Though he was similarly abusive to his staff, he did not antagonize his immediate superior as Waldrop did. Most importantly, the decision-makers who disciplined Waldrop differed from those who were charged with deciding what action to take against Burks. Waldrop was terminated by Spann and Phillips, while the decision to demote Burks was taken by the current president of the Lending Company, G.G. Hargon, in 1996. As a final point, there is even evidence that Waldrop was treated better than Burks. Waldrop was given several chances to correct his behavior, including a paid leave of absence, after which he was allowed to return to his manager position. Burks, however, was never given the opportunity to return to his supervisor's position after his demotion. The circumstances surrounding the disciplining of Burks and Waldrop thus fell short of "nearly identical," and reasonable jurors could not have justifiably believed otherwise.
4. Building a File
37
To show that United Companies' stated reasons for firing them were false, Wyvill and Waldrop alleged that United Companies management ordered supervisors to "build a file" on older workers. According to the plaintiffs, these files, documenting an employee's misdeeds and shortcomings, were used as a fig-leaf to cover any illegal employment actions taken against the employee. As proof that such files were "built" -- that is, created to provide cover for age-motivated terminations and not in the regular course of business -- plaintiffs alleged that United Companies supervisors violated their own standard employee disciplinary procedures in order to make sure the files contained as much damaging information as possible.
38
Assuming that United Companies did not follow standard procedures in compiling disciplinary records on Wyvill and Waldrop, this Court has previously observed that
39
[p]roof that an employer did not follow correct or standard procedures in the termination or demotion of an employee may well serve as the basis for a wrongful discharge action under state law. As we have stated, however, the ADEA was not created to redress wrongful discharge simply because the terminated worker was over the age of forty. A discharge may well be unfair or even unlawful and yet not be evidence of age bias under the ADEA. To make out an ADEA claim, the plaintiff must establish some nexus between the employment actions taken by the employer and the employee's age. [A] bald assertion that one exists . . . simply will not suffice.
40
Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993), citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1508 n. 6 (5th Cir. 1988). Here, plaintiffs put forth no evidence that would create a nexus between United Companies's file-building and the plaintiffs' ages. There was no evidence, for example, that United Companies kept files only on older workers, or that it complied with standard disciplinary procedures when filing reports on younger workers but flouted them when it came to Wyvill and Waldrop. Nor was there evidence that United Companies faithfully recorded the disciplinary violations of younger workers but fabricated those which, according to United Companies, motivated the terminations of Wyvill and Waldrop. The act of maintaining disciplinary files on employees, without more, is not illegal under the ADEA. In the absence of any nexus between plaintiffs' allegation of file-buildingand their ages, such assertions are insufficient to create an inference that plaintiffs were fired on account of age.
41
5. Additional Evidence of Age Discrimination
42
The remaining evidence introduced by plaintiffs might have been sufficient to cast doubt on United Companies' proffered explanations for plaintiffs' discharges, but it did nothing to raise an inference that the real reasons for the discharges were related to age. Plaintiffs put on extensive evidence that they were well-qualified for their respective jobs and that they had achieved considerable success. Waldrop introduced testimony that Brantley, his supervisor, was difficult to work for and largely to blame for his employment problems. Wyvill introduced evidence that he was put up to his unauthorized phone calls by the CEO's son, Terrell Brown, Jr. But even assuming the truth of these allegations, they allow at best an inference that United Companies' proffered explanations for the discharges were false. This evidence notably fails to connect the plaintiffs' discharges to the their ages, and it therefore does not permit an inference that age was a motivating factor in the terminations.
43
In sum, neither Wyvill nor Waldrop produced sufficient evidence to allow a reasonable jury to infer that United Companies terminated them because of age. In Weisgram v. Marley Co., -- U.S. --, 120 S.Ct. 1011 (2000), the Supreme Court affirmed the authority of courts of appeals to direct the entry of judgment as a matter of law in cases where, once erroneously admitted evidence is removed from consideration, there remains insufficient evidence to support the jury's verdict. Weisgram, 120 S.Ct. at 1022. Accordingly, finding that the properly admitted evidence in this case was insufficient to support the jury's verdict in favor of plaintiffs, we vacate the district court's judgment and remand for entry of judgment in favor of United Companies.
III. CONCLUSION
44
For the foregoing reasons, the district court's judgment is VACATED and REMANDED for the entry of judgment as a matter of law in favor of United Companies.
NOTES:
1
Waldrop was hired by United Mortgage of Georgia which was later merged with United Companies Lending Corporation.
2
Goff v. Continental Oil Co., 678 F.2d 593, 596-97 (5th Cir. 1982)(upholding the exclusion of testimony from former employees who did not work with plaintiff and who had no personal knowledge of the events surrounding plaintiff's discharge); Swanson v. General Services Administration, 110 F.3d 1180, 1190 (5th Cir. 1997)(affirming the exclusion of testimony from witnesses who did not work in plaintiff's office where their anecdotal accounts of discrimination were based on speculation.); Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 156 (6th Cir. 1988)(finding that testimony from former employees who worked in different offices from plaintiff and under different supervisors was irrelevant to plaintiff's age discrimination claim).
3
For the same reasons, we find that the court abused its discretion when, during closing argument, it allowed counsel for Wyvill and Waldrop to recite the names of forty-four former employees and to claim that these employees were victims of discrimination by United Companies. There was no evidence that these employees were similarly situated to Wyvill and Waldrop, and there was indeed no evidence, beyond counsel's naked assertion, that these employees had been discriminated against.
4
In fact, Davis, Cooke, and Desormeaux all testified that they had no personal knowledge of the circumstances surrounding the terminations of Wyvill and Waldrop.
5
Former employee Garold Cooke alleged that his supervisor, Mark McKinney, repeatedly made age-related comments evidencing age-bias. But there is no evidence that McKinney was a decision-maker with regard to the terminations of Wyvill and Waldrop, and his attitude toward age is therefore irrelevant to plaintiffs' claims. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990)("The biases of one who neither makes nor influences the challenged personnel decision are not probative in an employment discrimination case.").
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2013 IL 115171
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 115171)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KEITH
PIKES, Appellee.
Opinion filed November 21, 2013.
CHIEF JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis
concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Cook County,
defendant, Keith Pikes, was convicted of one count of first degree
murder and sentenced to 27 years in prison. The appellate court
reversed his conviction and remanded for a new trial, concluding that
the trial court erred in admitting evidence concerning a prior crime
committed by defendant’s codefendant, Lamont Donegan, in which
defendant was not involved. 2012 IL App (1st) 102274. This court
granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
Feb. 26, 2010).
¶2 BACKGROUND
¶3 Defendant and Donegan were tried simultaneously before separate
juries. They were both charged with the murder of Lorne Mosley,
who was killed in a drive-by shooting on August 21, 2006. Prior to
trial, the State sought admission of evidence that defendant and
Donegan were members of the Four Corner Hustlers gang, which was
involved in a conflict with the Gangster Disciples. The State also
sought admission of evidence of a prior incident between Donegan
and members of the Gangster Disciples (referred to herein as the
scooter shooting). In that incident, which occurred a day or so prior
to Mosley’s murder, Quentez Robinson, a member of the Gangster
Disciples, rode a scooter through Four Corner Hustlers territory,
followed by other Gangster Disciples in a car. Donegan began
shooting at Robinson, who rode off unharmed. The driver of the car
struck Donegan, who later allegedly recruited defendant to assist him
in exacting revenge for the incident. Defendant and Donegan
allegedly made statements indicating their intention to seek revenge
for the prior incident. In moving for admission of this evidence, the
State reasoned that the earlier incident involving Donegan was related
to the shooting of Mosley, thus providing an explanation for it. The
State also argued that the prior incident provided evidence of
defendant’s and Donegan’s joint motive and intent. The State also
sought admission of certain co-conspirator statements made by
Donegan prior to and immediately following the Mosley shooting.
The trial court granted the State’s motions over defendant’s objection.
As to the motion to admit evidence of the scooter shooting, the trial
court found the evidence to be relevant, more probative than
prejudicial, and necessary to allow the jury to understand the context
in which the Mosley shooting occurred.
¶4 The facts are not in dispute. Relevant to the issue in this appeal,
the evidence showed that in August 2006, a feud began between the
Gangster Disciples and the Four Corner Hustlers over the shooting by
a Gangster Disciples member of Victor Parsons, who was a member
of the Four Corner Hustlers. The feud involved the gangs shooting at
each other. Robinson testified concerning the scooter shooting. On
August 19, 2006, he was riding a scooter in Four Corner Hustlers
territory. A car containing other Gangster Disciples was following
him. Donegan ran into the street and began shooting at Robinson. The
car then struck Donegan. Robinson did not report the incident to
police.
¶5 Herbert Lemon, a member of the Gangster Disciples, testified that
his gang and the Four Corner Hustlers were enemies and that they had
been fighting and shooting at each other. He was in the car that was
following Robinson on the scooter when Donegan shot at Robinson.
The driver drove the car at Donegan, struck him, and drove away.
-2-
Lemon was also present the following evening when Mosley was
shot. He was in a group that included Robinson when he observed a
car drive toward them. Defendant and Donegan were in the car. They
began shooting at the group.
¶6 Brandon Merkson testified that there was an ongoing feud
between the Gangster Disciples and the Four Corner Hustlers.
Merkson was present at both the scooter shooting and the Mosley
shooting. Regarding the scooter shooting, Merkson was in the car that
struck Donegan after he shot at Robinson. At trial, Merkson denied
telling the police that Donegan was the person who shot at Robinson.
Merkson’s statement and his grand jury testimony were entered into
evidence.
¶7 Vernard Crowder testified, denying that he, defendant, and
Donegan were members of a street gang. He acknowledged testifying
before the grand jury but asserted that he had done so only because
the prosecutor agreed to drop a domestic battery charge against him.
He denied all of his grand jury testimony. Two assistant State’s
Attorneys testified concerning Crowder’s grand jury testimony and a
statement he made to police. Crowder stated that on the day of the
Mosley shooting, he saw defendant standing near a “greyish black,”
older model Toyota car. Donegan was inside the car cleaning it.
Defendant asked Crowder if he wanted to “go do business” on Corliss
(a street that was in Gangster Disciples territory), which Crowder
knew meant harming someone in the Gangster Disciples. Crowder
declined because he was on probation. Defendant did not like this
answer and reminded Crowder that “these are the same people that
killed Victor.” Later, Crowder heard gunshots coming from Corliss.
A few days after the shooting, Crowder was with Donegan and
DeAngelo Coleman. Donegan told Crowder that he could not get
caught with the gun he had with him because “it had a body on
Corliss.” Crowder understood this to mean that Donegan had used the
gun to kill Mosley.
¶8 DeAngelo Coleman testified, denying being a gang member or
hearing anything about the Mosley shooting. He denied that there was
any incident involving a scooter. An assistant State’s Attorney
published to the jury Coleman’s statement to police. In the statement,
Coleman acknowledged that he, Donegan, and defendant were
members of the Four Corner Hustlers gang. Coleman stated that on
the day of the scooter shooting incident, he heard gunshots. He ran
outside and saw Donegan lying on the ground. Donegan told Coleman
-3-
that he had just shot at Robinson who was on a scooter and that a car
following Robinson had struck Donegan. The next day, Coleman was
with defendant and Donegan. During the conversation, Donegan said
that someone had to pay for the scooter incident and that he was
going to kill a Gangster Disciple. Coleman heard defendant say that
he would steal a car to use for the planned shooting on Corliss and
that Donegan had a “jiggler” key that would fit older model Toyotas.
The key would allow a user to operate the door locks and ignition of
a car. Coleman later saw defendant driving a Toyota Camry. He saw
defendant and Donegan cleaning out the car. Defendant and Donegan
both had guns that they put in the car. They drove the car away. The
day after the Mosley shooting, Coleman saw defendant and Donegan.
Both men described how the shooting took place. Defendant said that
he drove slowly down the block. When they saw a group of young
men at the usual Gangster Disciples spot, Donegan fired his gun.
¶9 The trial court gave the jury Illinois Pattern Jury Instruction 3.14,
which addresses proof of other offenses or conduct (Illinois Pattern
Jury Instructions, Criminal, No. 3.14 (4th ed. 2000)). The instruction
alerted the jury that evidence had been received that defendant was
involved in conduct other than that charged in the indictment. The
jury was instructed that this evidence was to be considered on the
issues of defendant’s intent, motive, and opportunity. The jury was
instructed to determine whether defendant was involved in the
uncharged conduct. As stated, the jury convicted defendant, and the
trial court sentenced him to 27 years in prison.
¶ 10 ANALYSIS
¶ 11 Evidence of other crimes is admissible if it is relevant for any
purpose other than to show the defendant’s propensity to commit
crime. People v. Wilson, 214 Ill. 2d 127, 135 (2005). Other-crimes
evidence is admissible to show modus operandi, intent, motive,
identity, or absence of mistake with respect to the crime with which
the defendant is charged. People v. Robinson, 167 Ill. 2d 53, 62-63
(1995). However, even where relevant, the evidence should not be
admitted if its probative value is substantially outweighed by its
prejudicial effect. People v. Moss, 205 Ill. 2d 139, 156 (2001).
¶ 12 The admissibility of evidence rests within the discretion of the
trial court, and its decision will not be disturbed absent an abuse of
that discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010).
-4-
¶ 13 In People v. Thingvold, 145 Ill. 2d 441 (1991), this court
summarized the standards for admissibility of other-crimes evidence:
“Evidence of crimes for which a defendant is not on trial
is inadmissible if relevant merely to establish his propensity
to commit crime. [Citations.] Such evidence overpersuades
the jury, which might convict the defendant only because it
feels he is a bad person deserving punishment. [Citations.]
Evidence of the commission of other crimes is admissible,
however, when such evidence is relevant to prove modus
operandi, intent, identity, motive, or absence of mistake.
[Citations.] In fact, this court has held that evidence of other
crimes committed by the defendant may be admitted if
relevant to establish any material question other than the
propensity to commit a crime. [Citations.] When such
evidence is offered, the trial judge must weigh the relevance
of the evidence to establish the purpose for which it is offered
against the prejudicial effect the introduction of such evidence
may have upon the defendant.” Id. at 452.
¶ 14 Our Rule of Evidence 404(b) (Ill. R. Evid. 404(b) (eff. Jan. 1,
2011)) provides that, with certain specified exceptions, evidence of
other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. Such
evidence may also be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
¶ 15 When the State seeks admission of other-crimes evidence, it must
first show that a crime took place and that the defendant committed
it or participated in its commission. Thingvold, 145 Ill. 2d at 455. The
appellate court found that the State had failed to meet this threshold
requirement, and therefore the evidence of the scooter shooting by
Donegan was inadmissible against defendant. The appellate court
rejected the State’s argument that the evidence was not admitted as
other-crimes evidence, but was admitted because it was relevant
evidence of defendant’s motive for the Mosley shooting. The
appellate court focused on the fact that the scooter shooting was
evidence of a prior uncharged crime sought to be introduced against
defendant at his trial. The court found that this fact required the State
to show that defendant committed the prior crime. According to the
appellate court, since the State could not make that showing, the
evidence of the scooter shooting was inadmissible. The appellate
-5-
court reasoned that the evidence met the definition for other-crimes
evidence because it was evidence of a crime other than the crime
charged sought to be introduced against defendant at his trial. The
appellate court also noted that the State itself had described the
evidence as other-crimes evidence, pointing to the State’s motion to
admit evidence of the scooter shooting, the title of which was,
“Motion to Admit Proof of Other Crimes/Other Bad Acts.” 2012 IL
App (1st) 102274, ¶¶ 29-30. The appellate court drew a distinction
between “simple, relevant evidence and the peculiar concerns that are
involved in the consideration of other crimes evidence.” The appellate
court criticized the State for presenting no authority for its suggestion
that the threshold requirements for the admission of other-crimes
evidence may be bypassed as long as that evidence provides a
background or context for the crime charged. Id. ¶ 32.
¶ 16 The rule that evidence of the commission of other crimes, wrongs,
or acts by the accused is inadmissible for the purpose of showing a
propensity to commit crimes is an aspect of the rule that the
prosecution may not introduce evidence of a character trait of the
accused. Michael H. Graham, Graham’s Handbook of Illinois
Evidence § 404.5 (10th ed. 2010). The concern is not that such
evidence is lacking in probative value, but that it may overpersuade
the jury, which might convict the accused because it believes he or
she is a bad person. People v. Richardson, 123 Ill. 2d 322, 339
(1988). It is evident, therefore, that the concerns underlying the
admission of other-crimes evidence are not present when the
uncharged crime or bad act was not committed by the defendant. In
such a case, there is no danger that the jury will convict the defendant
because it believes he or she has a propensity to commit crimes. Thus,
the threshold requirement to show that the defendant, and not
someone else, committed the crime does not apply. The evidence was
clear that defendant was not involved in the scooter shooting. Thus,
the appellate court erred in holding that the evidence of that shooting
was inadmissible on the ground that the State did not show that
defendant committed or participated in that shooting. We therefore
conclude that the evidence of the scooter shooting was not other-
crimes evidence, and the appellate court erred in analyzing it as such.
¶ 17 The State argues that the shooting was an integral part of events
culminating in the Mosley shooting. The State notes that, by
definition, the other-crimes doctrine concerns the admission of
unrelated other crimes committed by the defendant to suggest that the
-6-
defendant committed the crime with which he or she was charged by
improperly showing either a propensity to commit crimes, or by
properly showing the defendant’s intent, motive, modus operandi, or
common design. The State maintains that the scooter shooting was
not an unrelated crime, but was part of the charged crime in that it
was the precipitating event that led to the Mosley shooting. The State
draws a distinction between “intrinsic” evidence that is somehow
related to the charged crime or is part of a continuing narrative of
events giving rise to the charged crime, and “extrinsic” evidence,
which is comprised of traditional other-crimes evidence.
¶ 18 Defendant argues that the scooter shooting was a “classic other
crime” because it was not related to the charged offense and was
therefore not inextricably intertwined with the Mosley shooting.
Defendant contends that the Mosley shooting can be fully shown
without reference to the scooter shooting. Counsel for defendant
conceded at oral argument that the incident in which Donegan was
struck by the car containing members of the Gangster Disciples is
relevant and was properly admitted. Thus, defendant challenges only
the admission of the scooter shooting itself. Defendant’s argument,
however, hinges on the fact that defendant was not shown to have
committed or participated in the scooter shooting. Defendant relies on
this court’s decision in Thingvold. There, the defendant was charged
with soliciting another man, Nalan, to murder his wife, Barbara. The
prosecution successfully sought the admission of evidence at trial of
the defendant’s prior bad acts. One man testified that the defendant
had earlier spoken of wanting Barbara dead so he could collect on her
life insurance. He had allegedly asked the man to wire money to a
hired killer and in return promised to give the man a car. Another man
testified that the defendant had asked him to kill Barbara so he could
collect on her insurance. The prosecution also successfully sought the
admission of evidence that the defendant had solicited a man to kill
his first wife, Diane, in the 1970s. The defendant and Diane later
divorced. The jury convicted the defendant of solicitation. The
appellate court reversed and remanded for a new trial, holding that the
evidence was improperly admitted. On further appeal, this court
affirmed the appellate court. The court found that the testimony
concerning Barbara was properly admitted as relevant to the
defendant’s motive to hire Nalan to kill Barbara for the purpose of
obtaining life insurance proceeds. However, this court found the
evidence concerning the defendant’s alleged solicitation of a man to
kill Diane was improperly admitted, noting that the fact that the
-7-
defendant may have solicited someone 10 years earlier to kill a
different wife did not tend to prove that the defendant intended Nalan
to kill Barbara when he solicited him. Rather, the court observed, this
was an example of evidence admitted to show a defendant’s
propensity to commit a crime. Thingvold, 145 Ill. 2d at 455.
Thingvold is inapposite to the case at bar because that case concerned
prior bad acts of the defendant, not a third party. Thus, defendant’s
reliance on that case is misplaced.
¶ 19 The State argues that the scooter shooting incident was connected
to the charged crime and was thus admissible under a line of authority
allowing admission of evidence of other crimes that are “intrinsic” or
related to the charged offense in some way, or are part of a
“continuing narrative” of the events giving rise to the charged
offense, or are “intertwined” with the charged offense. It notes that
some courts have recognized a distinction between traditional other-
crimes evidence (extrinsic) and evidence of an uncharged crime that
is related to the charged offense (intrinsic). See, e.g., People v.
Manuel, 294 Ill. App. 3d 113, 123 (1997); People v. Morales, 2012
IL App (1st) 101911, ¶ 24; People v. Rutledge, 409 Ill. App. 3d 22,
25 (2011); People v. Allen, 184 Ill. App. 3d 438, 449 (1989),
overruled on other grounds, 172 Ill. 2d 154 (1996). Other courts have
treated “intrinsic” evidence as an exception to the general exclusion
of other-crimes evidence. See, e.g., People v. Carter, 362 Ill. App. 3d
1180, 1189-90 (2005); People v. Evans, 373 Ill. App. 3d 948, 958-59
(2007).
¶ 20 This court has recognized that evidence of other crimes may be
admitted if it is part of the “continuing narrative” of the charged
crime. People v. Adkins, 239 Ill. 2d 1, 33 (2010). Such uncharged
crimes do not constitute separate, distinct, and disconnected crimes.
People v. Marose, 10 Ill. 2d 340, 343 (1957). It is this latter type of
crime with which the other-crimes doctrine is concerned. Notably, a
distinguishing characteristic of Adkins and the State’s cited cases is
that in each of the cases, it was alleged that the defendant had
committed the uncharged offense. Here, there is no dispute that
defendant was not involved in the scooter shooting incident. In our
case, therefore, it is unnecessary to make any distinction between
extrinsic or true other-crimes evidence and evidence of uncharged
offenses that is intrinsic, related to, or part of the continuing narrative
of the charged offense. Because defendant was not involved in the
scooter shooting incident, it was not an “other crime” for purposes of
-8-
evaluating its admissibility under our Rule of Evidence 404(b) and
the other-crimes doctrine. The fact that the challenged evidence
consists of an uncharged offense does not, standing alone, require it
to be analyzed under other-crimes principles. It is only when the
defendant is alleged to have committed the prior offense that those
principles apply. That is not the situation here. Rather than sow
confusion by analyzing the scooter shooting evidence under terms
such as “extrinsic” or “intrinsic” or as “inextricably intertwined” or
as a “continuing narrative,” we conclude that the admissibility of
evidence of the scooter shooting incident in this case should be
judged under ordinary principles of relevance.
¶ 21 Evidence is generally admissible if it is relevant. Ill. R. Evid. 402
(eff. Jan. 1, 2011). “Relevant evidence” is defined as evidence having
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than
it would be without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011).
Even relevant evidence, however, may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice.
Ill. R. Evid. 403 (eff. Jan. 1, 2011).
¶ 22 Defendant argues that his motive for the Mosley shooting was not
the incident in which Donegan was hit by the car, but rather the
shooting death of Victor Parsons, which had started the ongoing gang
war. We disagree. The evidence at trial amply demonstrated that
defendant was motivated to assist Donegan in retaliating against the
Gangster Disciples for the injury caused to Donegan during the
scooter shooting incident. The fact that defendant may have had a
secondary motive does not mean that he was not also motivated to
assist Donegan in retaliating against the Gangster Disciples for the
scooter shooting incident.
¶ 23 Defendant argues that admission of the scooter shooting incident
prejudiced him. He notes that the jury was instructed to determine
whether defendant was involved in conduct other than that charged
in the indictment. According to defendant, this instruction required
the jury to speculate as to defendant’s involvement in the scooter
shooting. We reject this argument. Defendant overlooks the fact that
evidence was produced at the trial that when Mosley was shot,
defendant and Donegan were driving a car that they had stolen by use
of a “jiggler” key. The jury instruction did not specify the particular
uncharged offense it referred to, but since the evidence at trial clearly
showed that defendant was not involved in the scooter shooting, the
-9-
jury instruction must have referred to the stolen car. Thus, defendant
was not prejudiced by this instruction with respect to the admission
of the scooter shooting evidence.
¶ 24 Defendant also argues that evidence of the scooter shooting was
improperly admitted because it was unnecessary to complete the
narrative underlying the Mosley murder. According to defendant, the
motive for the Mosley shooting was not the incident in which
Donegan shot at Robinson, but rather the subsequent striking of
Donegan by the car containing members of the Gangster Disciples.
Defendant believes that the Mosley murder could have been fully
related to the jury in an understandable manner without reference to
Donegan shooting at Robinson. Defendant overlooks the fact that the
car containing members of the Gangster Disciples was following
Robinson as he rode the scooter into Four Corner Hustlers territory.
This was not a random incident in which a bystander was struck by
a car. There was evidence at the trial of a continuing gang war
between the Gangster Disciples and the Four Corner Hustlers.
Evidence of gang membership was admitted. The events in this case
that culminated in the Mosley shooting were not only the car striking
Donegan, but also Donegan’s shooting at Robinson. These two events
were linked and it would be illogical for the trial court to uncouple
them and give the jury only half the story.
¶ 25 Defendant also argues that even though he was not shown to have
participated in the scooter shooting incident, he was prejudiced by its
admission into evidence because that incident, coupled with his gang
association with Donegan, carries an inference of guilt by association.
We note that evidence of gang membership was allowed in this case.
While defendant objected to its admission in the trial court, he does
not argue before this court that the trial court abused its discretion in
admitting this evidence. This court has previously recognized that
street gangs are regarded with considerable disfavor by other
segments of our society. People v. Gonzalez, 142 Ill. 2d 481, 489
(1991). Moreover, this court has acknowledged that, particularly in
metropolitan areas, there may be strong prejudice against street gangs.
People v. Patterson, 154 Ill. 2d 414, 458 (1992). Thus, this court has
held that evidence indicating a defendant is a member of a gang or is
involved in gang-related activity is admissible only where there is
sufficient proof that membership or activity in the gang is related to
the crime charged. Id. To the extent that defendant here is concerned
about an implied inference that “birds of a feather flock together,” any
-10-
alleged inference would more likely have come from the evidence of
gang membership, rather than from the scooter shooting incident in
which defendant was clearly not involved. The evidence was
uncontroverted that defendant was not present when Donegan shot at
Robinson. The prosecution did not suggest otherwise to the jury.
Thus, we reject defendant’s argument.
¶ 26 We hold that the trial court did not err in admitting evidence that
Donegan shot at Quentez Robinson and that he was immediately
thereafter struck by a car containing members of the Gangster
Disciples. The testimony at trial, specifically that of Robinson,
Herbert Lemon, Brandon Merkson, Vernard Crowder, and DeAngelo
Coleman, was relevant to show defendant’s motive for the subsequent
drive-by shooting in which Mosley was killed. Donegan was struck
by the car immediately following his shooting at Robinson. The two
events were intertwined and there was no reason to separate them,
particularly where defendant was not involved in them. Any prejudice
to defendant, if it existed, was far outweighed by the probative value
of this evidence to show defendant’s motive for the Mosley shooting.
Accordingly, the trial court did not abuse its discretion in admitting
this evidence, and the appellate court erred in reversing defendant’s
conviction and remanding for a new trial.
¶ 27 CONCLUSION
¶ 28 The appellate court erred in holding that evidence of the scooter
shooting incident was improperly admitted at defendant’s trial under
the other-crimes doctrine. We hold that this doctrine was inapplicable
here, where defendant neither committed nor participated in the prior
scooter shooting incident. The evidence of that incident was relevant
to show defendant’s motive for the drive-by shooting that resulted in
Lorne Mosley’s death, and the trial court did not abuse its discretion
in admitting the evidence for that purpose.
¶ 29 Because it determined that evidence of the scooter shooting was
inadmissible and that defendant was prejudiced by its admission,
thus requiring a new trial, the appellate court found it unnecessary to
consider other issues raised by defendant on appeal. We now reverse
-11-
the appellate court’s judgment and remand to that court for
consideration of those issues.
¶ 30 Appellate court judgment reversed.
¶ 31 Cause remanded.
-12-
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324 F.2d 27
James ROWE, Sr., Appellant,v.UNITED STATES of America, Appellee.
No. 20190.
United States Court of Appeals Fifth Circuit.
October 25, 1963.
Wesley R. Asinof, Charles R. Smith, Atlanta, Ga., for appellant.
Bobby C. Milam, Robert D. Feagin, III, Asst. U. S. Attys., Charles L. Goodson, U. S. Atty., Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.
PER CURIAM.
1
In this appeal from a conviction on three counts of a four-count indictment for violation of the liquor laws, appellant makes a strong contention that there was no evidence submitted to the jury to the effect that the liquor that was purchased failed to have the required revenue stamps affixed to it. While the Government can point to no evidence expressly stating that there were no stamps affixed to the whiskey, it contends that there was sufficient circumstantial evidence to warrant the jury's inferring that no stamps had been affixed. The most persuasive is that the purchases were made for $5.50 a gallon, whereas the stamps themselves would have cost $10.50 a gallon.
2
We think it is not necessary to determine whether there was sufficient evidence to warrant the jury's finding of a verdict of guilty as to these two counts, because we conclude that there is unquestionably ample evidence to support the jury's verdict of guilt as to the fourth count. Since the sentence of 18 months falls within the maximum permissible for a single count, the sentence will not be disturbed even though there might be error in connection with one or more counts. Walker v. United States, 5 Cir., 285 F.2d 52, 60; Hall v. United States, 5 Cir., 286 F.2d 676, fn. 16, p. 680, cert. denied 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236.
3
The judgment is affirmed.
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FILED
NOT FOR PUBLICATION
JUN 06 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30103
Plaintiff - Appellee, D.C. No. 2:14-cr-00059-RSL-1
v.
MEMORANDUM*
SHAWN LUNDY,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Senior District Judge, Presiding
Submitted June 2, 2016**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Shawn Lundy appeals from the district court’s judgment and challenges his
guilty-plea convictions and 10-year sentence for conspiracy to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and possession of
counterfeit obligations or securities, in violation of 18 U.S.C. § 472. Pursuant to
*
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).
Anders v. California, 386 U.S. 738 (1967), Lundy’s counsel has filed a brief
stating that there are no grounds for relief, along with a motion to withdraw as
counsel. We have provided Lundy the opportunity to file a pro se supplemental
brief. No pro se supplemental brief or answering brief has been filed.
Lundy has waived his right to appeal his conviction and sentence. Because
the record discloses no arguable issue as to the validity of the appeal waiver, we
dismiss the appeal. See United States v. Watson, 582 F.3d 974, 986-88 (9th Cir.
2009).
Counsel’s motion to withdraw is GRANTED.
DISMISSED.
2
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896 F.2d 1154
UNITED STATES of America, Plaintiff-Appellee,v.Pilar VILLAPUDUA-PERADA, Defendant-Appellant.
No. 88-1242.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 9, 1989.Decided Feb. 9, 1990.
Antonio R. Zuniga, Phoenix, Ariz., for defendant-appellant.
W. Allen Stooks, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before TANG, CANBY, and O'SCANNLAIN, Circuit Judges.
TANG, Circuit Judge:
1
Pilar Villapudua-Perada appeals his conviction for the unlawful sale of a narcotic drug. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.
FACTS AND PROCEEDINGS BELOW
2
On December 9, 1970, the government indicted Pilar Villapudua-Perada in the district of Arizona in case number CR-70-657 for the unlawful sale of a narcotic drug. Villapudua-Perada was arrested on the charge approximately nine years later, but on the second day of his January 22, 1980 trial, he escaped custody. The trial continued in his absence, and the jury convicted Villapudua-Perada on January 25, 1980. Sentencing was postponed until Villapudua-Perada was again apprehended.
3
On February 7, 1980, after the escape, Villapudua-Perada was indicted in case number CR-80-018 for his failure to appear during the trial on the narcotics charge. The two cases, CR-70-657 and CR-80-018, were never consolidated, yet various motions and court orders were made during Villapudua-Perada's absence which carried both case numbers even when they pertained to only one of the cases.
4
Four years later, on February 27, 1984, the government moved to dismiss without prejudice the indictment in CR-80-018, the failure-to-appear charge, on the ground that "the defendant has remained in fugitive status for such an extended period of time that apprehension and subsequent successful prosecution appears unlikely." The district court granted this motion on March 6, 1984. On March 8, 1984, the government also moved to dismiss without prejudice the indictment in CR-70-657, the narcotics charge on which Villapudua-Perada had been convicted. This motion was granted on March 21, 1984. On June 8, 1984, the government again requested dismissal of the same two matters. The district court granted this motion on June 12, 1984.
5
On September 28, 1984, while Villapudua-Perada was still in fugitive status, the government filed an ex-parte Motion to Set Aside Order of Dismissal and to Reinstate Conviction. The motion carried both case numbers, but the request concerned only the conviction in CR-70-657, the narcotics charge. The government explained that it had "erroneously submitted a dismissal form for both cases [CR-70-657 and CR-80-018] instead of submitting a dismissal for only CR-80-018, failure to appear." Moreover, the government asserted that it would be "a manifest injustice" for Villapudua-Perada's conviction not to be reinstated in light of his escape during trial. The district court granted the government's motion on October 3, 1984, and reinstated Villapudua-Perada's conviction in the narcotic case CR-70-657.
6
In early 1988, Villapudua-Perada was recaptured in Mexico and extradited to the United States. Shortly thereafter, with Villapudua-Perada now present before the court, the district court entered judgment of conviction for the unlawful sale of a narcotic drug against Villapudua-Perada and sentenced him to twenty years in prison. Villapudua-Perada filed a Notice of Appeal on May 31, 1988 and a petition for habeas corpus relief on June 24, 1988. The district court denied habeas corpus relief and vacated its March 21, 1984 dismissal order nunc pro tunc. Villapudua-Perada timely appeals his conviction.DISCUSSION
1. Jurisdiction
7
Villapudua-Perada contends that the district court lacked jurisdiction to reinstate his conviction because the government's motion for reinstatement was untimely. This court reviews a district court's assumption of jurisdiction de novo. United States v. Layton, 855 F.2d 1388, 1394 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989). Villapudua-Perada's contention fails.
8
The district court has inherent jurisdiction within the time allowed for appeal to modify its judgment for errors of fact or law or even to revoke a judgment. United States v. Jones, 608 F.2d 386, 390 (9th Cir.1979). We treat the district court's reinstatement of an erroneously dismissed indictment as a response to a motion for reconsideration.1 United States v. Rubio, 727 F.2d 786, 799 (9th Cir.1983). A motion for reconsideration is timely presented if "filed within the original period for review." Id. (quoting Jones, 608 F.2d at 390). That period for review or appeal is governed by 18 U.S.C. Sec. 3731, see United States v. Emens, 565 F.2d 1142, 1143 (9th Cir.1977), providing that the government must file an appeal of an order dismissing an indictment within thirty days after the order. 18 U.S.C. Sec. 3731. Because the time to appeal a dismissal of an indictment is thirty days, the time for the government to move for reconsideration of the dismissal is also thirty days. See Jones, 608 F.2d at 390. The district court here vacated the dismissal order on October 3, 1984, three months beyond the thirty day period prescribed in section 3731.
9
Title 18 U.S.C. Sec. 3290 provides: "No statute of limitations shall extend to any person fleeing from justice." In United States v. Gonsalves, 675 F.2d 1050, 1053 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d 78 (1982), we held that in a proceeding on the defendant's motion to dismiss an indictment because the statute of limitations had run, the defendant's alleged flight from justice on unrelated federal charges tolled the limitations statute on the indictment charges. We reasoned that section 3290 "reflects a congressional intent to deny a person fleeing from justice in any federal jurisdiction the protection of the criminal limitations statute on all federal offenses." Id.
10
We believe section 3290 to be controlling on the facts of this case.2 The government requested the dismissal of the failure to appear indictment only because Villapudua-Perada had escaped custody and the government believed successful prosecution was unlikely. Therefore, Villapudua-Perada's own action precipitated the government's error in also requesting dismissal of the narcotics indictment. Villapudua-Perada cannot now justly claim the benefit of such error. We hold that the thirty day limitation period in which the district court retained jurisdiction over the dismissed indictments was tolled while Villapudua-Perada was a fugitive. Therefore, the district court retained jurisdiction to reinstate Villapudua-Perada's conviction.32. Evidentiary showing
11
Villapudua-Perada also contends that the district court abused its discretion in reinstating his indictment because the government presented no evidence to show that error prompted the dismissal. We review the district court's decision to reinstate a previously dismissed indictment for an abuse of discretion. Rubio, 727 F.2d at 799. This contention also fails.
12
Federal Rule of Criminal Procedure 47 provides: "A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought." In its ex-parte motion, the government justified its request for reinstatement by claiming that it had erroneously requested the wrong case to be dismissed. This explanation was plausible in that Villapudua-Perada was the subject of two closely related cases which were often treated as one. The district court did not abuse its discretion.
13
AFFIRMED.
14
O'SCANNLAIN, Circuit Judge, specially concurring:
15
I concur in the court's judgment, but write separately to express my view that the indictment here was never properly dismissed and, therefore, we need not decide whether to reinstate it.
16
The United States Attorney could not dismiss the indictment under Fed.R.Crim.P. 48(a) once a jury had convicted Villapudua-Perada of the drug charge against him. Rule 48(a) allows a United States Attorney to file a dismissal of an indictment with leave of court and, if during trial, with consent of the defendant. But Villapudua-Perada's case had gone far beyond the indictment and trial stage when the United States Attorney moved for dismissal. In fact, a jury had already convicted Villapudua-Perada of selling narcotics when the United States Attorney filed the mistaken dismissal. A prosecution which has gone to conviction cannot be dismissed under Fed.R.Crim.P. 48(a). See Hirabayashi v. United States, 828 F.2d 591, 607 (9th Cir.1987) ("There is no precedent for applying Rule 48 to vacate a conviction after the trial and appellate proceedings have ended."). Accordingly, I would find the United States Attorney's filing of dismissal of the indictment to be a nullity and would affirm on this basis alone.
1
We note that "[t]here is no precedent" for granting a United States attorney's motion under Federal Rule of Criminal Procedure 48(a) "to vacate a conviction after the trial...." Hirabayashi v. United States, 828 F.2d 591, 607 (9th Cir.1987). This circuit has not decided this issue. Id. at 608 ("We need not decide whether Rule 48 precludes a district court from ever granting a post-appeal dismissal."). Because of our holding on the issue of the jurisdiction to reinstate Villapudua-Perada's conviction, infra, we need not decide in this case whether the government's post-conviction motion to dismiss was permissible under Rule 48
2
We recognize that 18 U.S.C. Sec. 3731 is not a statute of limitations per se. However, its application here, as a jurisdictional limit over the dismissed indictments, has the effect of a limitations statute
3
The government argues that the doctrine of disentitlement should bar Villapudua-Perada's claim of error. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Having found that the district court had jurisdiction to reinstate Villapudua-Perada's indictment, we need not decide the doctrine's applicability to the present case
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State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 6, 2015 520096
________________________________
In the Matter of ALBERT
HARRIOTT,
Petitioner,
v MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
et al.,
Respondents.
________________________________
Calendar Date: June 8, 2015
Before: Peters, P.J., McCarthy, Lynch and Devine, JJ.
__________
Albert Harriott, Elmira, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.
__________
Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of respondent Commissioner of Corrections
and Community Supervision which found petitioner guilty of
violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the
presence of cannabinoids, petitioner was charged in a misbehavior
report with drug use. He was found guilty of the charge
following a tier III disciplinary hearing, and the determination
was affirmed on administrative appeal. Petitioner thereafter
commenced this CPLR article 78 proceeding.
-2- 520096
We confirm. The misbehavior report, hearing testimony of
its author and positive urinalysis test results provide
substantial evidence to support the determination of guilt (see
Matter of Epps v Prack, 127 AD3d 1477, 1477 [2015]; Matter of
Bussey v Commissioner of Corr. & Community Supervision, 120 AD3d
1471, 1472 [2014]). Petitioner's claim that the report was
written in retaliation for prior grievances and lawsuits that he
had filed presented a credibility issue for the Hearing Officer
to resolve (see Matter of Donah v Prack, 127 AD3d 1538, 1538
[2015]; Matter of Guillory v Annucci, 125 AD3d 1024, 1024-1025
[2015], lv denied 25 NY3d 905 [2015]).
Finally, petitioner challenges the denial of a request for
certain documents that he made pursuant to the Freedom of
Information Law (see Public Officers Law art 6). Inasmuch as
there is no indication in the record that petitioner has
exhausted his administration remedies with respect thereto, our
review of the issue is precluded (see Matter of White v State of
New York, 117 AD3d 1250, 1250-1251 [2014]). Petitioner's
remaining claims have been reviewed and found to be lacking in
merit.
Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court
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149 Ga. App. 551 (1979)
254 S.E.2d 877
McCULLEY
v.
DUNSON et al.
57015.
Court of Appeals of Georgia.
Argued January 8, 1979.
Decided April 4, 1979.
Marshall L. Helms, Jr., for appellant.
John M. Cogburn, Jr., for appellees.
SHULMAN, Judge.
The appellant, plaintiff below, brought suit against appellees Dunson and Beacon Electronics, Inc., and Gordon Denny (who is not a party to this appeal), alleging that she had been fraudulently "flim-flammed." Defendant Denny did not answer and was not represented at trial; appellees did answer and were represented.
At the close of the evidence, appellees made a motion for directed verdict "on the grounds that there has been no proof of agency and that there has been no proof that either of the defendants, Dunson or Beacon, made any representations that the plaintiff relied on in dealing with Gordon Denny." Appellant brings this appeal from the grant of that directed verdict to appellees.
1. Appellant urges that the motion for directed verdict should have been denied because the evidence authorizes a finding of an "agency relationship" between the appellees and defendant Denny.
The evidence shows that Denny expressed an interest in marketing appellees' alarm products. He deposited $500 against a total investment of $5,000 to obtain a dealership and was given 90 days in which to pay the balance. He subsequently paid $200 more, bringing his total deposit to $700. Denny then published a newspaper advertisement soliciting a "working partner" with $5,000 to invest. Appellant responded to this advertisement by contacting Denny, who told her he was interested in "going into a dealership with Beacon Electronics and he needed a partner because it would cost more than he had to put up by himself." Denny also made representations that if appellant would contribute $5,000, he would contribute a like amount.
Appellant agreed to enter into a partnership with Denny and presented him a check for $5,000, made to "Gordon Denny Assoc." for "half-dealership partnership *552 investment." She and Denny signed a "Dealership Agreement" with Beacon Electronics, giving them the right to retail its alarm products in Douglas County, Georgia. This agreement was also signed by Dunson, the secretary of Beacon Electronics.
Denny never contributed any money to the partnership and used appellant's $5,000 to pay the balance due to Beacon Electronics for the dealership rights. Appellant subsequently became disillusioned with Denny as a partner, tried to get him to buy her out, but was refused. The business failed, according to appellant, because of Denny's disinterest in the partnership and his failure to provide financial contribution. This suit was brought to have appellant's investment returned and for other damages which she claimed resulted from her business association with appellees and Dunson.
At no time prior to her signing the "Dealership Agreement" or paying Denny the $5,000 did the appellant have any contact with appellees Dunson and Beacon Electronics. She dealt solely with Denny, and it was his representations which originally induced her to invest $5,000. Appellant urges, however, that there was evidence that Denny was the agent of the appellees and that she should be allowed to recover under the theory that a principal commits fraud through his agent when the fraud is conducted for the benefit of the principal. Finch v. Hill, 146 Ga. 687 (1) (92 SE 63).
"The relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf." Code Ann. § 4-101. Here, there is no evidence of an express agency relationship. However, "`[t]he authority of an agent in a particular instance need not be proved by an express contract; it may be established by the principal's conduct and course of dealing, and if one holds out another as his agent, and by his course of dealing indicates that the agent has certain authority, and thus induces another to deal with his agent as such, he is estopped to deny that the agent has any authority which, as reasonably deductible from the conduct of the parties, the agent apparently has.' [Cits.]" *553 Equitable Credit Corp. v. Johnson, 86 Ga. App. 844, 847 (72 SE2d 816).
There is in the record no evidence whatever that the appellant was ever led to believe that Denny was the agent of the appellees or that she was dealing with Denny other than in his individual capacity as a potential partner in the dealership. The advertisement which she answered was in Denny's name. There is no evidence that the appellees ever held Denny out to her as their agent or that they ever indicated that Denny had any authority to act for them. Likewise, the appellees never induced the appellant to deal with Denny. Denny solicited the appellant and she dealt with him, not as appellees' agent, but in his own individual capacity as an entrepreneur seeking a partner.
Under the agreement, appellee Beacon Electronics was the "Distributor" while Denny and appellant, as partners, were its "Dealers." Therefore, it was logical that appellees would testify to having "a lot riding on the success of the Denny/McCulley dealership." But the mere fact that appellees had an interest in the success of dealership does not, without more, make appellees Denny's principals. See generally Arthur Murray, Inc. v. Smith, 124 Ga. App. 51, 53 (183 SE2d 66). Nor do we find the facts that Denny conferred with appellees about choosing the appellant as his partner and that appellee Dunson typed up and signed the Beacon Electronics "Dealership Agreement" to be dispositive of the agency question. See generally W. T. Rawleigh Co. v. Oliver, 67 Ga. App. 748 (21 SE2d 490).
The evidence simply shows that appellant was solicited by Denny as his "working partner"; that she did not meet or converse with appellees before entering into an agreement with Denny to become his partner; that she gave Denny a check for "half dealership partnership investment"; and that she and Denny, as partners, signed a "Dealership Agreement" with appellees. Under this evidence we are constrained to agree that there was no showing of an agency relationship between the appellees and Denny. See generally Longino v. Garner, 102 Ga. App. 680 (117 SE2d 259). The grant of the directed verdict was proper as to this theory of recovery against appellees.
*554 2. Appellant's remaining enumeration of error is predicated upon her contention that there was sufficient evidence of conspiracy between Denny and appellees to warrant a submission of the case to a jury.
The trial judge, at the conclusion of the evidence, directed a verdict for the appellant and against the absent Denny in the amount of $5,000. Under these circumstances, "the issue becomes whether there is sufficient evidence of a conspiracy to bind the [other defendants]." Grainger v. Jackson, 122 Ga. App. 123, 128 (176 SE2d 279).
The evidence clearly shows that the appellant was induced by Denny into becoming his partner. It does not show, however, that the appellees were somehow a part of a conspiracy to induce her into that partnership. The appellant has cited no relevant evidence to authorize such a finding. The evidence shows only that the appellant was solicited by Denny to become his partner and obtain a dealership from the appellees. She entered into this partnership based upon Denny's representations and received from appellees what she sought to receive, a Beacon Electronics dealership.
We are aware that "[t]o show conspiracy ... it need not appear that the parties met together either formally or informally and entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design." Woodruff v. Hughes, 2 Ga. App. 361, 365 (58 SE 551). But it is also true that "[t]he law should not, and does not, authorize a finding that a conspiracy exists merely because of some speculative suspicion..." Grant v. Hart, 197 Ga. 662, 680 (30 SE2d 271).
While the question of conspiracy is "solely a question for the jury" if the plaintiff alleges facts and circumstances which suggest a conspiracy, or which "`establish an inference, as a deduction from conduct which discloses a common design'" (Hodges v. Youmans, 129 Ga. App. 481 (2) (200 SE2d 157), citing Harris v. State, 184 Ga. 382, 392 (191 SE 439)), the mere fact that conspiracy has *555 been alleged does not require submission of the question to the jury. See generally Rood v. Newman, 75 Ga. App. 621 (44 SE2d 171).
There was no error.
Judgment affirmed. Deen, C. J., and McMurray, J., concur.
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543 U.S. 1166
GILESv.WASHINGTON.
No. 04-7767.
Supreme Court of United States.
February 22, 2005.
1
Ct. App. Wash. Certiorari denied. Reported below: 119 Wash. App. 1018.
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361 Mass. 545 (1972)
281 N.E.2d 258
COMMONWEALTH
vs.
ANTHONY H. LOFTIS.
Supreme Judicial Court of Massachusetts, Norfolk.
February 7, 1972.
April 6, 1972.
Present: CUTTER, SPIEGEL, REARDON, & QUIRICO, JJ.
Robert V. Greco (Reuben Goodman with him) for the defendant.
John P. Connor, Jr., Assistant District Attorney, for the Commonwealth.
SPIEGEL, J.
The defendant was tried and found guilty on three indictments charging him with breaking and entering with intent to commit larceny (46861) and with unarmed robbery (46862-46863).[1] These cases are before us on the defendant's appeal under the provisions of G.L.c. 278, § 33A-33G. We treat with the two assignments of error argued by the defendant.
1. The defendant first contends that his motion to dismiss should have been granted since he was not tried within six months of the receipt of his application for a speedy trial pursuant to G.L.c. 277, § 72A.[2] We summarize *547 the events relevant to the defendant's contention.
On October 9, 1970, the defendant was arraigned on indictments 46860-46863 and two unrelated indictments (45268-45269). Defence counsel stated that because investigation would require a great deal of time he would not be prepared to try these cases in this session.
On October 29, 1970, the Commonwealth requested that indictments 46860-46863 be placed on the trial list or specially assigned. The trial judge was informed that defence counsel was ill, that he had not yet interviewed the defendant, and that his substitute counsel was not in a position to consent to the continuance. The judge thereupon asked the Commonwealth whether it could, in fairness to the public, move for a continuance until the next scheduled criminal session in February, 1971, without the consent of the defendant. The Commonwealth so moved.
On December 8, 1970, the defendant's application for a speedy trial was received by the Norfolk County clerk.
A criminal session was subsequently scheduled in Norfolk County for January, 1971. On January 6, 1971 (all dates hereafter are 1971); indictments 46860-46863 and 45268-45269 (the two unrelated indictments) were called and, upon defence counsel's request, set down for the next trial session in February. Defence counsel represented at this time that he might request an independent expert fingerprint analysis. The judge stated that by January 25 he expected to hear any motions concerning the fingerprints and another matter involving *548 out of State alibi witnesses. No motions were filed or argued on January 25.
On February 3 the cases[3] were called for trial. The Commonwealth stated that it was prepared for trial, and the cases were placed on the list for February 8.
On February 8 the Commonwealth again stated that it was ready for trial. Defence counsel at this time presented motions for an independent fingerprint analysis and for identification procedures "used" by the Commonwealth.
The judge was obviously concerned with the status of the speedy trial motion, and asked whether the defendant would state in open court that a continuance from February to April would be on his motion without prejudice to the Commonwealth. Defence counsel, however, was unwilling to do this. The judge then stated: "We will put it on for second call and reconsider your position. Frankly, I realize that you have a problem but you place the Court in an impossible position. You need time for investigation. At the same time you don't want to move for a continuance. The Commonwealth is ready for trial, I assume?" At the second call, defence counsel agreed that these matters might be set down for trial, but would not commit himself to a date which would be convenient for him. Eventually, by agreement of the parties and with the judge's consent, all of the indictments were set down for February 18, at which time indictments 45268-45269 would be tried and discussion would then be held on the progress of the other charges.
On February 18, however, only indictments 46860-46863 were called. Defence counsel pointed out that the Commonwealth had promised to proceed first on indictments 45268-45269. These were then placed on the trial *549 list with the notation that the parties be prepared to proceed on twenty-four hours notice.
On April 5, 6 and 7 all six indictments were called but no trial was held.[4] On April 12, the defendant pleaded guilty on indictments 45268-45269. Indictments 46860-46863 were not called again until June 8, when the defendant moved to dismiss them. On July 1, the motion was denied. The trial commenced on July 20.
Our examination of the transcripts of the pre-trial proceedings leads us to conclude that there was no error in the denial of this motion. Although defence counsel was careful never formally to request a continuance, it is clear that much of the delay in this case was for the benefit of the defendant.
General Laws c. 277, § 72A, does not compel a judge to dismiss an indictment if the case is not tried or otherwise disposed of within six months after an application for a speedy trial is "received by the court."[5]
Such a construction would enable a defendant to play, as the defendant did here, the game of "Heads I win, tails you lose." We do not believe that the Legislature intended to have the statute so construed. Perhaps it is advisable in situations such as in the instant cases for a trial judge to compel a defendant either to move for a continuance or to stand trial. If the defendant moves for a continuance, it would seem prudent for the judge, in allowing such a motion, specifically to order an extension of the statutory period. In any event, in the circumstance of these cases, it would be unconscionable to permit the defendant to take advantage of a situation *550 where a substantial part of the delay in the disposition of the cases was obviously caused by him and, in addition, was for his benefit. Shepherd v. United States, 163 F.2d 974, 976 (8th Cir.). See People v. Lanigan, 22 Cal.2d 569, 578-580. Specifically, since the Commonwealth moved for a continuance from October 29, 1970, to the February, 1971, session to accommodate the defendant, the statute should not be read to run against it during this time. Similarly, the defendant's motions on February 8 were the cause of delay until February 18, and he should not be permitted to have the benefit of now claiming the running of the statute during that period. It therefore follows that July 20 was a timely date for the trial.
2. The defendant's second contention is that the evidence was insufficient to warrant the convictions, and thus his motion for directed verdicts should have been allowed. We summarize the evidence, largely on the basis of the presentation in the defendant's brief, which was accepted by the Commonwealth. On April 19, 1969, four black men broke into the Brookline apartment of one Peter Gross. Gross and his fiancee, one Elizabeth Snider, were there watching television at the time. The men kicked Gross in the mouth and dragged Miss Snider to another room where each of the four raped her. They took from Miss Snider an engagement ring worth approximately $1,500 and took from Gross a watch, $10, and an old driver's license. After the men left, Miss Snider went across the hall and asked the neighbors to call the police who, upon arriving, dusted the area for fingerprints. Gross observed that a kitchen window over the kitchen table was open. One of the Brookline policemen present, Detective Richard Sullivan, testified that he ascertained that this window was the point of entry on the break, and that he "was able to locate two latent fingerprints of value." "They were located at a distance that would be in conjunction with a person having come through the window and placing ... [his] right hand on the center of the table." A fingerprint expert testified *551 that nine points of similarity between the defendant's prints and those found on the kitchen table were sufficient to make a positive identification.
The defendant does not contest the reliability or the admissibility of the fingerprint evidence. See Moon v. State, 22 Ariz. 418; People v. Jones, 257 App. Div. (N.Y.) 5. He argues that the fingerprints show only that he was present in the apartment sometime on April 18, 1969.[6] The defendant further contends that since the fingerprints are consistent with the possibility that he was present in the apartment "legitimately, or ... illegitimately, in the course, for instance, of a trespass," they do not establish that he committed the crimes involved in this appeal. We see no substance to this argument. "A jury may find a crime proved beyond a reasonable doubt even though the inference of guilt from the facts established is not inescapable or necessary." Commonwealth v. Ehrlich, 308 Mass. 498, 500. In Commonwealth v. Dubois, 353 Mass. 223, 224-225, an elderly widow testified that the defendant, whom she identified, came to the door of her house, requested a glass of water, and, after she had given it to him, followed her into the house and raped her. The Commonwealth's case rested on the victim's identification of the defendant and a fingerprint found on the drinking glass. We there stated that even without the eyewitness identification, the jury were justified in finding the defendant guilty of rape. Here, too, the jury's verdicts of guilty were fully warranted. The defendant's motion for directed verdicts was correctly denied.
Judgments affirmed.
NOTES
[1] There was another indictment (46860) charging rape which was tried together with these indictments. The jury were unable to agree on a verdict on this charge and a mistrial was declared. This indictment was then dismissed. All indictments arose out of the same incident.
[2] General Laws c. 277, § 72A, as appearing in St. 1965, c. 343, provides: "The commissioner of correction, the sheriff, master or keeper of a jail or house of correction, or in Suffolk county, the penal institutions commissioner of the city of Boston, shall, upon learning that an untried indictment, information or complaint is pending in any court in the commonwealth against any prisoner serving a term of imprisonment in any correctional institution, jail or house of correction, which is under his supervision or control, notify such prisoner in writing thereof, stating its contents, including the court in which it is pending, and that such prisoner has the right to apply, as hereinafter provided, to such court for prompt trial or other disposition thereof.
"Such application shall be in writing and given or sent by such prisoner to the commissioner of correction, or such sheriff, master, keeper or penal institutions commissioner, who shall promptly forward it to such court by certified mail, together with a certificate of said commissioner of correction, sheriff, master, keeper, or penal institutions commissioner, stating (a) the term of commitment under which such prisoner is being held, (b) the amount of time served, (c) the amount of time remaining to be served, (d) the amount of good time earned, (e) the time of parole eligibility of such prisoner, and (f) any decisions of the board of parole relating to such prisoner. Said commissioner of correction, sheriff, master, keeper, or penal institutions commissioner shall notify the appropriate district attorney by certified mail of such application to the court.
"Any such prisoner shall, within six months after such application is received by the court, be brought into court for trial or other disposition of any such indictment, information or complaint, unless the court shall otherwise order."
[3] Although the transcript for February 2, 3 and 8 indicates that indictments 45268-45269 were called by the clerk, it is apparent that the judge and the parties regarded all six indictments as before the court.
[4] The record does not appear clear as to the cause of the delay. We infer, however, that the delay was not through the fault of either of the parties.
[5] We note that the defendant, in his brief, concedes that "[t]he statute does not explicitly provide that prosecution shall be barred if there is no trial within six months." However, he argues that "such a remedy must be implied or the right would be meaningless." The converse to this argument is that the concluding phrase in the statute, namely, "unless the court shall otherwise order," would be meaningless if we were to follow the defendant's contention. This we decline to do.
[6] Gross testified that he had seen his roommate wash the kitchen table on the morning of April 18, 1969, with a "sponge, soap and water." Thus the time during which the fingerprints could have been imposed was limited to the day of the crime.
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522 N.W.2d 159 (1994)
246 Neb. 625
In re ESTATE OF Delphine C. WAGNER, Deceased.
Lois Ann TANK, Appellant,
v.
Clara Mae LANGE, Appellee.
No. S-93-262.
Supreme Court of Nebraska.
September 30, 1994.
*162 Neil W. Schilke of Sidner, Svoboda, Schilke, Thomsen, Holtorf & Boggy, Fremont, for appellant.
William G. Line of Kerrigan & Line, Fremont and Darrell K. Stock of Snyder & Stock, Lincoln, for appellee.
HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and BOSLAUGH, J., Retired.
LANPHIER, Justice.
This case concerns a will contest between children of the decedent, Delphine C. Wagner. A daughter of the decedent, Clarinda Foote, submitted a will dated April 2, 1984, for probate in the county court for Dodge County. The will specified it made no provision for four children who unsuccessfully had attempted to put the decedent under a conservatorship to set aside leases on ground formerly rented to some of them. It left all property to the two remaining children. The appellant, Lois Ann Tank, objected to probate *163 of the will on the grounds that the testator lacked the capacity to make a will and that the will was the product of undue influence. After a hearing on the matter, the trial court awarded summary judgment to the appellee, Clara Mae Lange. The appellant, asserting that there were genuine issues of material fact raised, appealed from that order to the Nebraska Court of Appeals. Subsequently, we removed this case to the Supreme Court docket in order to regulate the caseloads of the appellate courts. Our review of the record establishes that the district court correctly concluded that there were no genuine issues of material fact. We therefore affirm.
BACKGROUND
Delphine Wagner and her husband Roy had six children, Clara Mae Lange, Clarinda Foote, Lyman Wagner, Lois Ann Tank, Genevieve Beerbohm, and Del Nor Sazama. After Roy Wagner died, four of the children, Lyman Wagner, Lois Ann Tank, Genevieve Beerbohm, and Del Nor Sazama, initiated proceedings to have a conservator appointed for their mother and to have a lease she made set aside. See In re Estate of Wagner, 220 Neb. 32, 367 N.W.2d 736 (1985) (Wagner I). Delphine Wagner leased a certain parcel of land to Scribner Alfalfa, Inc. Charles Lange, Clara Mae's husband, worked at Scribner Alfalfa, Inc. In previous years the land had been rented to Lyman Wagner and to Lois Ann Tank and her husband, Paul, who wished to continue renting the land.
The county court for Dodge County appointed a conservator and set aside the lease. See Wagner I. After reviewing the case, the district court vacated the appointment and reinstated the lease. This court in Wagner I affirmed the judgment of the district court.
Delphine Wagner died July 22, 1992. On July 26, Clarinda Foote filed in the county court for Dodge County a petition for probate of the will dated April 2, 1984. That will in pertinent part stated:
FIRST: I specifically make no provision for my children, Lyman Wagner, Lois Ann Tank, Genevieve Beerbohm and Del Nor Sazama for the reason that they have joined in a petition to place me under conservatorship to set aside leases I made with the Scribner Alfalfa Mill on ground formerly rented to Lyman Wagner and Paul and Lois Ann Tank. Despite the fact that doctors said that I was mentally sound, they have carried on a court fight putting me to heavy and needless expense and I direct that they take no part of any of my property, real or personal.
SECOND: I give all of my property, both real and personal, to my two remaining children, Clarinda Foote and Clara Mae Lange.
On August 21, 1992, Lois Ann Tank filed objections to the petition for probate. She contended that Delphine Wagner lacked testamentary capacity to make the will and that the will was the product of undue influence. Lois Ann Tank then transferred the matter to the district court for Dodge County. Clara Mae Lange moved for summary judgment in the district court, asserting that the evidence submitted failed to raise a genuine issue of material fact and that she was entitled to judgment as a matter of law. Relying on Wagner I, Clara Mae Lange contended that this matter is res judicata. The district court sustained the motion, but did not state the basis of its decision to do so.
ASSIGNMENTS OF ERROR
Lois Ann Tank asserts that the district court erred in granting summary judgment. She contends that there were genuine issues of material fact with respect to whether the testator had testamentary capacity and whether the will was the product of undue influence.
STANDARD OF REVIEW
In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Zwingman v. Kallhoff, 244 Neb. 514, 507 N.W.2d 894 (1993); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992); Spittler v. Nicola, 239 Neb. 972, 479 N.W.2d *164 803 (1992). Moreover, summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Zwingman v. Kallhoff, supra; Murphy v. Spelts-Schultz Lumber Co., supra; Moore v. Hartford Fire Ins. Co., 240 Neb. 195, 481 N.W.2d 196 (1992); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992).
SUMMARY JUDGMENT
The question presented for review in this case is whether the trial court erred in determining that there were no genuine issues of material fact regarding Delphine Wagner's testamentary capacity or whether she was subject to undue influence when she made her will.
An underlying issue raised by the appellee is whether the doctrines of res judicata or collateral estoppel would bar the appellant from contesting the will on grounds of undue influence and lack of testamentary capacity. If the doctrines of res judicata or collateral estoppel legally preclude the appellant from contesting Delphine Wagner's testamentary capacity or whether she was subject to undue influence, there could be no genuine issue as to those facts. See Kopecky v. National Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994). Thus, if either of the doctrines apply, it follows that the grant of summary judgment was appropriate. However, if the doctrines do not apply, that does not mean that the grant of summary judgment was necessarily erroneous. In such a case, we must review the evidence to determine if a genuine issue of material fact is raised.
COLLATERAL ESTOPPEL/RES JUDICATA
The applicability of the doctrines of collateral estoppel and res judicata to this case constitute questions of law. See Kopecky v. National Farms, Inc., supra. With regard to questions of law, an appellate court is obligated to reach a conclusion independent from the trial court's conclusion. Id.; Petska v. Olson Gravel, Inc., 243 Neb. 568, 500 N.W.2d 828 (1993).
Although the appellee uses the term res judicata, her arguments raise the point that the same issues addressed in Wagner I, mental capacity and undue influence, are being raised in the instant action. The doctrine of res judicata provides that a final judgment on the merits is conclusive upon the parties in any later litigation involving the same cause of action. Petska v. Olson Gravel, Inc., supra. Under collateral estoppel, when an issue of ultimate fact has been determined by a final judgment, that issue cannot again be litigated between the same parties in a future lawsuit. Id. Given the substance of the appellee's argument, and the fact that a will contest and a conservatorship proceeding are not the same causes of action, we believe the issue the appellee raises concerns the doctrine of collateral estoppel and not res judicata.
There are four conditions that must exist for the doctrine of collateral estoppel to apply: (1) The identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. Kopecky v. National Farms, Inc., supra; McCook Nat. Bank v. Myers, 243 Neb. 853, 503 N.W.2d 200 (1993); State on behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165 (1992).
In determining the applicability of collateral estoppel to this case, we necessarily will be required to decide whether the issues decided in Wagner I are identical to those raised here.
In Wagner I, 220 Neb. at 33, 367 N.W.2d at 738, the issues decided were "whether the requirements of [Neb.Rev.Stat.] § 30-2630 [(Cum.Supp.1984)] were met so as to justify the appointment of a conservator for Mrs. Wagner" and whether a lease she made should be set aside as the product of undue influence. We will address each of these issues separately.
*165 First, we will address the appointment of a conservator. The appellee's argument, in essence, is that the determination of mental capacity for the purposes of a conservatorship proceeding is sufficient to determine the existence of testamentary capacity. However, a comparison of the elements of each clearly shows that mental capacity for the purposes of a conservatorship and testamentary capacity are not the same. See, also, In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982) ("mental competence" is not the same as "testamentary capacity"). The requirements for the appointment of conservator, as set forth in Neb.Rev.Stat. § 30-2630(2) (Reissue 1989), are that
(i) the person is unable to manage his or her property and property affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, or lack of discretion in managing benefits received from public funds, detention by a foreign power, or disappearance; and (ii) the person has property which will be wasted or dissipated unless proper management is provided....
One possesses testamentary capacity if she understands the nature of her act in making a will or a codicil thereto, knows the extent and character of her property, knows and understands the proposed disposition of her property, and knows the natural objects of her bounty. In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989).
Since the requisite elements for the appointment of a conservator are different than the elements of testamentary capacity, the issues decided in Wagner I are necessarily different than those raised in the instant case. Therefore, the doctrine of collateral estoppel does not apply to bar the appellant from contesting Delphine Wagner's will for lack of testamentary capacity.
We also find that the doctrine of collateral estoppel does not apply to prevent the appellant from contesting the will on grounds of undue influence. Again, the issue addressed in Wagner I is different from the one raised here. In Wagner I, the alleged undue influence concerned a lease. Here it concerns a will. A finding that there was no undue influence with respect to a lease made at one time has nothing to do with whether there was undue influence with respect to a will made at another time. In Gutzmer v. Nelsen, 121 Neb. 214, 236 N.W. 614 (1931), this court held that a finding of undue influence used to set aside a will did not conclusively establish by means of the doctrine of res judicata that a deed subsequently made was the product of undue influence. There we stated:
Though the parties in the two cases are identical, there is no identity in the things sued for or in the causes of action in the will case and in this case to set aside the deed. Res judicata does not exist where there is no identity in the thing sued for or in the cause of action.
(Emphasis omitted.) Id. at 217, 236 N.W. at 615.
In any event, the standards of proof in the two proceedings are different. The setting aside of a contract for undue influence requires clear and convincing evidence. Miller v. Westwood, 238 Neb. 896, 472 N.W.2d 903 (1991). However, in a will contest, undue influence need only be established by a preponderance of the evidence. In re Estate of Price, 223 Neb. 12, 388 N.W.2d 72 (1986). Just because the evidence offered in the prior action was not clear and convincing does not mean that the same evidence could not constitute a preponderance of the evidence. See Restatement (Second) of Judgments § 28(4), comment f., illus. 11 (1982). Thus, the doctrine of collateral estoppel again could not serve to conclusively establish that the will was not a product of undue influence.
REVIEW OF THE EVIDENCE PRESENTED
Next, we turn to whether, given the evidence presented with respect to the testamentary capacity of Delphine Wagner, summary judgment was appropriate.
A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must furnish sufficient evidence to demonstrate that the moving party is entitled to judgment as a *166 matter of law if the evidence presented remains uncontroverted. After the moving party has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party. Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal., 243 Neb. 351, 500 N.W.2d 520 (1993); Howard v. Blue Cross Blue Shield, 242 Neb. 150, 494 N.W.2d 99 (1993).
The burden is on the proponent of a will to prove the testamentary capacity of the testator. In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982). However, a self-proved will establishes prima facie proof of testamentary capacity. Id. It is undisputed that the will in question is a self-proved will; therefore, the appellee, the proponent of the will, has established prima facie proof of testamentary capacity and met her burden with respect to the motion for summary judgment.
Next, we must consider whether the appellant met her burden to present evidence showing a genuine issue of material fact to prevent judgment as a matter of law. In her brief, the appellant contends that the strongest evidence of Delphine Wagner's lack of testamentary capacity is a handwritten document dated March 26, 1984. In this note, Delphine Wagner expresses thoughts on her will, anger toward those of her children who initiated the conservatorship proceedings, and despair. The appellant suggests that because not all of the property Delphine Wagner owned was specifically mentioned in the note, Delphine Wagner did not know the extent of her property. The appellant's argument presumes that Delphine Wagner's intent in drafting the note was to inventory her property. That she did not mention all of her property in this note is of so little consequence that it cannot even be considered relevant evidence as to whether she knew the extent of her property.
The appellant also suggests that the phrase "Paul [Tank] has no 1/6 in this place whatsoever," found in the above-mentioned note, tends to prove Delphine Wagner's lack of testamentary capacity by establishing that she did not know the natural objects of her bounty. In her brief, the appellant states: "The reference to his [Paul Tank's] one-sixth interest, if equated with the interest of his wife Lois Ann, would indicate a belief or intent by Delphine that the property was passing equally to her six children or the five other than Lois Ann." Brief for appellant at 45.
The appellant's strained attempt to find meaning in this statement by means of successive inferences clearly illustrates that rather than evidence, the appellant is relying upon conjecture.
The appellant argues that Delphine Wagner obviously lost testamentary capacity at some point before she died. The appellant further argues that Delphine Wagner suffered a stroke on May 8, 1984, a little more than a month after she executed her will. Since the condition causing the stroke was obviously progressive in nature, the appellant argues that there is a sufficient basis to raise a genuine issue of material fact as to Delphine Wagner's testamentary capacity on the date she executed her will. We disagree. Even if we assume that Delphine Wagner lost testamentary capacity at some point before she died, a fact we need not decide, the evidence presented fails to raise a genuine issue of material fact with respect to her testamentary capacity on April 2, 1984. The appellant is asking us to infer from the fact that Delphine Wagner suffered a stroke on May 8, 1984, that her capacity was diminished more than a month earlier. However, to make such inferences regarding the effects of the stroke on Delphine Wagner's testamentary capacity a month earlier would require us to ignore clear facts. The record affirmatively shows that Delphine Wagner's mental capacity was unaffected 1 month after the stroke. Dr. Roger W. Dilley, Delphine Wagner's physician, testified during a deposition that notes he made in conjunction with a June 8, 1984, visit from Delphine Wagner reflected that "she had no evidence of any confusion or difficulty making decisions."
With respect to the medical evidence adduced, the appellant admits in her brief that "medical records, including the doctor's notes, show nothing regarding substantial *167 mental difficulty until May 30, 1988." Brief for appellant at 40. This is more than 4 years after the will was executed. Although this seems to support the grant of summary judgment, the appellant's point is that the absence of medical records should not be considered evidence in support of testamentary capacity. However, we are not concerned with the weight of the evidence, but, rather, with whether the appellant has adduced evidence to establish a genuine issue of material fact. She has not.
Lastly, the appellant offers her opinions and those of her siblings on Delphine Wagner's testamentary capacity. It is true that a nonexpert witness who is shown to have had a more or less intimate acquaintance with a person may be permitted to state an opinion as to the mental condition of that person by giving the facts and circumstances upon which the opinion is based. In re Estate of Thompson, 225 Neb. 643, 407 N.W.2d 738 (1987). However, it must appear that the witness has in mind the quality of mental capacity essential to the making of a valid will and that the facts and circumstances attested to are sufficient upon which to base an opinion. In re Estate of Camin, supra. Without detailing all the deposition testimony offered by the disinherited children, it is clear that they did not have in mind the requirements for testamentary capacity at the time they offered their opinions. They also were unable to point to specific facts or circumstances upon which they based their testimony. A review of the remaining evidence contained in the record also fails to establish any genuine issue of material fact concerning Delphine Wagner's testamentary capacity. We, therefore, conclude as did the district court that the appellant failed to offer evidence which would present a genuine issue of material fact such as would prevent the rendering of judgment as a matter of law.
Finally, we must review the evidence with respect to the claim of undue influence. Undue influence such as to defeat a will is such manipulation as destroys the free agency of the testator and substitutes another's purpose for that of the testator. In re Estate of Peterson, 232 Neb. 105, 439 N.W.2d 516 (1989). Mere suspicion, surmise, or conjecture does not warrant a finding of undue influence; there must be a solid foundation of established facts on which to rest the inference of its existence. Wagner I.
It is well established that both the appellee and Clarinda Foote were intimately involved in virtually all aspects of their mother's life during her declining years. That they possessed the opportunity to exercise undue influence cannot be seriously disputed. However, there is virtually no evidence of the other elements of undue influence.
With respect to whether Delphine Wagner was subject to undue influence, the record clearly demonstrates that she was not. The record shows that despite the strenuous efforts of certain of her children and her son-in-law Paul Tank to control her, she was determined to retain control over her own affairs. She appeared to be of a mind clearly not amenable to undue influence.
Likewise, the appellant fails to present a genuine issue of fact concerning whether the appellee or Clarinda Foote was disposed to exercise undue influence for an improper purpose. The record shows that they were thoroughly involved in the feud which obviously caused Delphine Wagner great anguish. However, it does not show their disposition to exercise undue influence. Though replete with allegations, the record is devoid of any underlying factual basis for those allegations.
With respect to the appellant's claim that Delphine Wagner's will was the product of undue influence, we conclude that the district court's grant of summary judgment was appropriate.
CONCLUSION
Because there is no genuine issue of material fact which would prevent the rendering of judgment as a matter of law, we affirm the judgment of the district court.
AFFIRMED.
WHITE, J., not participating in the decision.
WRIGHT, J., not participating.
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272 S.W.2d 161 (1954)
FELKER LUMBER COMPANY et al., Appellants,
v.
SUPERIOR INSURANCE COMPANY, Appellee.
No. 6745.
Court of Civil Appeals of Texas, Texarkana.
September 23, 1954.
Rehearing Denied November 4, 1954.
Carney, Carney & Mays, Atlanta, Salmon & Lovelace, Linden, for appellants.
Strasburger, Price, Kelton, Miller & Martin, Fred K. Newberry, Dallas, for appellee.
HALL, Chief Justice.
This is an appeal from a summary judgment entered by the District Court of Cass County against appellant. The record discloses that one H. R. Foster, an alleged employee of M. L. Felker, Sr., and M. L. Felker, Jr., doing business as Felker Lumber Company, claimed accidental injury on September 19, 1949, while in the course of his employment with said Company.
On March 3, 1950, Foster sued the Felkers in a common-law action for damages, alleging that he was negligently injured while working at their sawmill. He also alleged that they had in their employ more than three employees but were not subscribers under the Workmen's Compensation Laws of the State of Texas, Vernon's Ann.Civ.St. art. 8306 et seq.
On September 6, 1950, M. L. Felker, Jr., filed a plea in abatement to the common-law action of Foster in which he alleged that he was the operator of the Felker Lumber Company, and on the date of Foster's alleged accidental injury was a subscriber under the Workmen's Compensation Laws of the State of Texas, carrying a policy with appellee. No action was had on this plea.
On September 18, 1950, M. L. Felker, Sr., filed his sworn affidavit that he was not a partner with his son, M. L. Felker, Jr., in the Felker Lumber Company and denied that Foster was his employee on the date of his alleged injury.
On October 9, 1950, both of the Felkers filed their answer to Foster's common-law action, subject to their plea in abatement and denial of partnership, containing numerous exceptions to plaintiff Foster's pleading, and stating that on the date of Foster's alleged injury the sawmill was covered with a workmen's compensation insurance policy issued by appellee. Appellants pleaded further: "In this connection, defendants further allege, that if the inception date of such policy shows some other date other than the 29th day of October, A.D. 1948, and an expiration date of some other date other than October 29th, 1949, *162 that then such dates as shown on said policy are mistakes, made by the Company." In the alternative, appellants alleged that Foster was guilty of contributory negligence causing his accident and that the accident was an unavoidable one.
On October 11, 1950, plaintiff Foster, in the alternative, joined the Superior Insurance Company, appellee, in his suit against the Felkers, his employers, and sought judgment against it as compensation carrier. To the above pleading the Insurance Company filed its plea in abatement, alleging that the Industrial Accident Board had not passed upon Foster's claim (this plea was not passed upon prior to the proceeding out of which this appeal arises). Subject to its plea in abatement, Superior Insurance Company filed its answer averring that on the date of Foster's alleged injury its policy covering Felker Lumber Company had lapsed and was not in force.
On October 20, 1950, Foster, plaintiff in the original suit, dismissed his common-law action against the Felkers, theretofore filed in Cass County District Court, leaving only his count against appellee Insurance Company, the alleged compensation carrier of the Felker Lumber Company.
On or about November 1, 1950, Foster having removed to the State of Louisiana, filed a common-law action, similar to that filed originally in Cass County District Court, against the Felkers in the U. S. District Court for the Eastern District of Texas at Jefferson.
On July 31, 1951, the following joint motion was filed in the U. S. District Court by Foster, plaintiff, and the Felkers, defendants:
"H. R. Foster, Plaintiff |
vs. |
Felker Lumber Company } Civil No. 320.
et al., Defendants |
"Agreement and Motion for Dismissal
"To Said Honorable Court:
"Having reached a satisfactory adjustment and settlement of all matters and things in controversy in the above case, the Plaintiff and the Defendants jointly move the Court that it dismiss this cause with prejudice to the right of the Plaintiff to ever institute or maintain the cause of action heretofore asserted in this suit; costs of the action to be taxed against the Defendants."
In response to this motion the following order was entered:
"Order of the Court
"This 31 day of July, A.D. 1951, the foregoing application having been considered and approved,
"Ordered, that the above cause be and it is dismissed with prejudice to the right of the Plaintiff to ever institute or maintain the cause of action asserted therein, costs to be taxed against Defendants, for which execution may issue.
"(s) T. Whitfield Davidson
United States District Judge."
"Filed July 31, 1951.
After Foster dismissed the common-law action in the Cass County District Court against the Felkers, as heretofore pointed out, his action for compensation against appellee Insurance Company remained on the docket of said court without any action being taken thereon until September 15, 1952. Appellants then instituted this suit by filing under the same number as the original suit brought by Foster against appellees, and as part of their petition alleged as a basis of the present cause of action that the original cause of action by Foster against the Insurance Company was still pending in Cass County District Court "and had been assigned to these plaintiffs" (appellants).
Reverting somewhat in time, the record shows that on February 25, 1950, Foster filed his claim for compensation with the Industrial Accident Board, and on March 7, 1950, the Board refused to take any action on his claim "for want of jurisdiction."
Appellants' first point is: "The trial court erred in granting a Motion for a *163 summary judgment herein, in finding that there was no Judicial Determination that Appellants (Felker) be required to pay H. R. Foster, their injured employee, $7,900.00 and that their claim was not based upon any legal ground."
The assignment by Foster of his claim for compensation against appellee forms the sole basis of appellants' action against appellee. No relation exists otherwise between them. It is undisputed that Foster had already received in a settlement in the Federal Court the sum of $7,900 for his injury and medical care. A summary judgment is authorized by Rule 166-A, T.R. C.P. only when there is no substantial dispute between the litigants. "`The motion will be denied if it appears that a substantial fact dispute may exist, regardless of informalities or defects in the resisting party's papers.'" I aufman v. Blackman, Tex. Civ.App., 239 S.W.2d 422, 428, citing Texas Law Review, page 438. See also Small and Mecom v. Thompson, Tex.Civ.App., 239 S.W.2d 847.
R.S. Article 8306, § 3, among other things, provides: "All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits and claims, and no such right of action and no such compensation and no part thereof or of either, shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void." This provision has been uniformly held to make void any assignment made by the insured as is shown in Mabry v. Aetna Casualty & Surety Co., Tex.Civ.App., 230 S.W.2d 572; Morton v. Federal Underwriters Exchange, Tex.Civ.App., 173 S.W.2d 515; English v. McCorkle, Tex.Civ.App., 157 S.W.2d 965. The conclusion seems inescapable to us that the assignment by Foster of his claim for compensation insurance to appellants is totally void and of no effect, and that such fact affords ample support for the summary judgment rendered therein.
There is no statement of facts accompanying this record. We have been furnished a photostatic copy of notice that employer had become a subscriber under a policy issued by appellee, showing that the effective date of the policy was September 15, 1948, hour effective date, 12:01 A.M., and expiration date September 15, 1949. This is properly attested by the Industrial Accident Board and shows to have been signed by M. L. Felker, Jr. We also have a specimen policy filed with the Clerk of this Court which shows that the policy was in force from September 15, 1948, to September 15, 1949, 12:01 A.M. Standard Time. Should we be mistaken in our conclusion expressed above, we are of the opinion, from this undisputed meagre testimony before us, that on the date of Foster's alleged injury, to wit, September 19, 1949, the policy of insurance issued by appellee covering Felker Lumber Company had lapsed by four days. Hence there was no policy covering the employees of Felker Lumber Company on the date of Foster's alleged injury. Moreover, it is apparent to us that the Felkers who made the settlement with Foster in Federal Court at Jefferson had the legal right to abate the common-law action in Federal Court by merely filing in that Court a plea to the jurisdiction, setting up that they and the Felker Lumber Company were covered by compensation insurance.
It is our opinion, then, that no disputed issue of fact is shown in the record, or at least none is brought forward to this Court, and we must presume that whatever facts were brought in the trial court were insufficient to present an issue between the parties.
All other points brought forward have been examined and are overruled.
The judgment of the trial court is affirmed.
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162 So.2d 462 (1964)
Frank HOGG
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
6 Div. 752.
Supreme Court of Alabama.
March 19, 1964.
Marvin Cherner, Birmingham, and Hammonds & Esco, Bessemer, for appellant.
Rives, Peterson, Pettus & Conway, Birmingham, for appellee.
GOODWYN, Justice.
Declaratory judgment proceeding to determine coverage under an automobile liability insurance policy.
The bill was filed by State Farm Mutual Automobile Insurance Company, appellee, naming as respondents Frank Hogg, appellant, and Thomas J. Hogg, Mary Anne Hogg and Hubert S. Fulton, Jr.
The policy was issued by State Farm to Mary Anne Hogg covering her automobile which was being driven with her permission by Fulton when it collided with another automobile being driven by appellant, Frank Hogg. The coverage question arose when appellant and his father, Thomas J. Hogg, filed suits against Fulton seeking damages resulting from bodily injuries allegedly sustained by appellant in the accident.
Fulton claimed coverage as an omnibus insured under the following provisions of the policy, viz.:
"DEFINITIONSINSURING AGREEMENTS I AND II
"Named Insuredmeans the individual so designated in the declarations *463 and also includes his spouse, if a resident of the same household.
"Insuredunder coverages A, B, C and M, the unqualified word `insured' includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the owned automobile, provided the actual use of such automobile is with the permission of the named insured, and (4) under coverages A and B any person or organization legally responsible for the use thereof by an insured as defined under the three subsections above."
We are concerned here with coverage A, which applies to bodily injury.
State Farm denied coverage because of the following policy exclusion, viz.:
"EXCLUSIONSINSURING AGREEMENTS I AND II
"This insurance does not apply under:
* * * * * *
"(g) coverage A, * * * (2) to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured;
* * * * * *"
The trial court held that State Farm was not obligated to defend Fulton in the suits, nor to pay any judgments which might be rendered therein. This appeal is from that decree.
It was stipulated that appellant, Frank Hogg, is the brother of the named insured, Mary Anne Hogg, and that both of them resided in the same household with their father, Thomas J. Hogg. The only point at issue is whether the term "insured," as used in the exclusion provision, means only the person claiming coverage under the policy, that is, Fulton, or means the named insured, Mary Anne Hogg, as well as Fulton, who has coverage under the omnibus clause, supra.
The trial court, in holding that State Farm was not obligated to defend Fulton, relied on Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920. We agree that that case is dispositive of the question before us. Involved there was an exclusion provision concerning employees of the "insured"; but the reasoning is equally applicable in the instant case. In fact, the court dealt with the specific question before us, as follows:
"There exists a closely analogous situation to the case at hand under certain automobile liability policies wherein bodily injury to `any member of the family of the insured residing in the same household as the insured' is excluded from coverage. The cases have held that a person outside the family of the named insured, although qualifying as an additional insured, cannot claim protection under the policy for injury to a member of the family of the named insured. Johnson v. State Farm Mutual Automobile Insurance Company, 8 Cir., 252 F.2d 158; Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357; Kirk v. State Farm Mutual Automobile Insurance Company, 200 Tenn. 37, 289 S.W.2d 538."
If, as argued by appellant, the foregoing was unnecessary to the decision in the Carroll case, we nevertheless consider it appropriate in the instant case and entertain the view that it should be approved as here controlling. This conclusion was reached after giving due consideration to the cases from other jurisdictions relied on by appellant, wherein contrary conclusions were reached.
The decree appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.
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487 F.Supp.2d 1094 (2007)
Seana TAKKALLAPALLI, and, Srinu Takkallapalli, Plaintiffs,
v.
Michael CHERTOFF, Secretary of the Department of Homeland Security, et al., Defendants.
No. 06-0477-CV-W-GAF.
United States District Court, W.D. Missouri, Western Division.
May 24, 2007.
*1095 Michael J. McKitrick, Danna McKitrick, P.C., Timothy E. Wichmer, Bernhardt & Wichmer PC, St. Louis, MO, for Plaintiffs.
Jeffrey P. Ray, Office of the United States Attorney, Kansas City, MO, for Defendants.
ORDER
FENNER, District Judge.
Presently before the Court is a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 ("Rule 56") by Plaintiffs Seana Takkallapalli ("Ms. Takkallapalli") and her husband Dr. Srinu Takkallapalli ("Dr. Takkallapalli") (collectively the "Takkallapallis"). (Doc. # 17). The Takkallapallis seek a writ of mandamus compelling Defendants Michael Chertoff, Secretary of the Department of Homeland Security, and Michael Jaromin, District Director of the United State Citizenship and Immigration Service ("USCIS"), (collectively "Defendants") to adjudicate their petition and application for status change. (Doc. # 18). The Takkallapallis concede that the ultimate decisions as to whether Dr. Takkallapalli's application is granted or denied is not subject to judicial review because that decision is committed to the discretion of the USCIS, but argue that the agency owes them a nondiscretionary duty to adjudicate their petition and application in a reasonable time. Id.
In a Cross-Motion for Summary Judgment, Defendants' argue the Court lacks jurisdiction over the Takkallapallis' Complaint for Mandamus. (Doc. # 21). Defendants further argue that if the Court finds that it does have jurisdiction, it should decline to exercise its discretion to issue mandamus as this case involves executive branch judgments about immigration and national security. Id. For the reasons stated below, the Takkallapallis' Motion for Summary Judgment is DENIED and Defendants' Cross-Motion for Summary Judgment is GRANTED.
DISCUSSION
I. Facts
The present case arises from the Takkallapallis' claims that Defendants have not processed their petition and application for adjustment of status in a timely manner. (Doc. # 1). On or about December 17, 2003, Ms. Takkallapalli, a United States citizen, filed a Petition for Alien Relative (USCIS Form 1-130) on behalf of her husband. (Compl. ¶ 3). Dr. Takkallapalli, who was born in India and is an Indian citizen, filed an Application for Adjustment of Status to Permanent Resident (USCIS Form 1-485) based on his wife's petition. (Dr. Takkallapalli Aff. ¶¶ 1-3). Both forms must be approved before a beneficiary alien can become a lawful permanent resident. (Def. SOF ¶ 2).
The USCIS interviewed the Takkallapallis on April 22, 2004 and advised them that their case would be adjudicated within 120 days. (Dr. Takkallapalli Aff. ¶ 4). Despite the Takkallapallis' attempts to follow up on their petition and application, those filings are still pending before the USCIS. Id. The USCIS informed the Takkallapallis that adjudication of their immigration applications was awaiting a background security check.[1] (Compl. ¶ 11). Applicants for *1096 an immigration benefit are subject to criminal and national security background checks to ensure that they are eligible for that benefit and that they do not pose a risk to national security or public safety. (Perry Decl. ¶ 4). The required checks include a name check administered by the Federal Bureau of Investigation. Id. The FBI received a name check request for Dr. Takkallapalli on March 23, 2004, but has not yet completed the check. (Cannon Decl. ¶ 22).
Following the events of September 11, 2001, the need for more rigorous and thorough background checks and a backlog of requests has resulted in significant delays in processing some requests. (Perry Decl. ¶ 15; Cannon Decl. ¶¶ 16-19). In response to heightened security concerns, the USCIS's predecessor resubmitted 2.7 million name checks in addition to an increasing number of regular submissions. (Cannon Decl. ¶¶ 17-18). The FBI is still processing the significant number of resubmissions that required additional investigation. (Cannon Decl. ¶¶ 18-19). In addition to the backlog of resubmissions, the FBI processed in excess of 3.4 million name checks in the fiscal year 2006. (Cannon Decl. ¶¶ 13-14). The FBI generally processes name checks on a first-in, first-out basis and cannot provide a specific time frame for completing any particular review. (Cannon Decl. ¶¶ 19-20).
The USCIS has advised the Takkallapallis that it is unable to adjudicate their petition and application until the name check and any follow-up investigation is completed. (Perry Decl. ¶¶ 14-15). As a result, the Takkallapallis filed the present action seeking an order of mandamus compelling Defendants to act upon their Petition for Alien Relative and Application for Adjustment of Status to Permanent Resident within the next sixty (60) days.
II. Standard
Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, indicates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Castillo v. Ridge, 445 F.3d 1057, 1060 (8th Cir.2006) citing Gipson v. Immigration and Naturalization Service, 284 F.3d 913, 916 (8th Cir.2002). In the present case, the parties have essentially agreed to the pertinent facts that would be proven at trial for purposes of the present motions, so it is appropriate for the Court to determine if either party is entitled to judgment as a matter of law. W.S.A., Inc. v. Liberty Mut. Ins. Co., 7 F.3d 788, 790-91 (8th Cir.1993) citing Coca-Cola Bottling Co. of St. Louis v. Teamsters Local Union No. 688, 959 F.2d 1438, 1440 (8th Cir. 1992).
III. Analysis
To maintain the present action, the Takkallapallis must show both a waiver of sovereign immunity and a grant of subject matter jurisdiction. V S Ltd. P'ship v. Dep't of Hous. and Urban Dev., 235 F.3d 1109, 1112 (8th Cir.2000) citing Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir.1999). Without elaborating, the Takkallapallis allege that this Court has subject matter jurisdiction over the present action "under 28 U.S.C. Section 1331, Federal Question Jurisdiction (this action arises under the Constitution and the laws of the United States, specifically *1097 the Immigration and Nationality Act (INA), Section 245 et seq. [8 U.S.C. Section 1255, et seq.], 5 U.S.C. Section 555 et seq., and the Fifth Amendment to the U.S. Constitution; 28 U.S.C. Section 1651, the All Writs Act, 28 U.S.C. 1346, [sic] the Federal Tort Claims Act, 28 U.S.C. Section 2201, the Declaratory Judgment Act; 5 U.S.C. Section 702, the Administrative Procedure Act; 28 U.S.C. Section 1361, regarding the action to compel an officer of the United States to perform his duty; and 8 U.S.C. Section 1329, the [sic] INA for jurisdiction of this court over actions arising under said Act.)" (Compl. ¶ 5). Defendants argue that none of these provisions vest this Court with jurisdiction over the Takkallapallis' mandamus claim, (Doc. # 21).
To the extent they can be deciphered, the jurisdictional bases the Takkallapallis assert are problematic. The INA provision on which the Takkallapallis rely, § 1329, specifically provides, in relevant part, that, "[n]othing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." Similarly, the Declaratory Judgment Act and the All Writs Act alone do not provide an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (Declaratory Judgment Act); Public Water Supply Dist. No. 10 of Cass County, Mo. v. City of Peculiar, Mo., 345 F.3d 570, 572 (8th Cir.2003) (Declaratory Judgment Act); Nichols v. Harbor Venture, Inc., 284 F.3d 857, 863 (8th Cir.2002) (All Writs Act) citing White v. Nat'l Football League, 41 F.3d 402, 409 (8th Cir. 1994). In addition, § 1331 does not create any substantive rights or afford jurisdiction in the absence of a waiver of sovereign immunity. Hagemeier v. Block, 806 F.2d 197, 202-03 (8th Cir.1986) (citations omitted). Finally, while the Federal Tort Claims Act, 28 U.S.C. § 1346, does provide an independent basis for exercising federal jurisdiction, the Takkallapallis have not made an earnest attempt to establish jurisdiction on this basis.
The Takkallapallis' claims of jurisdiction under the Administrative Procedure Act ("APA"), 5 U.S.C. § 555 et seq., and the Mandamus Act, 28 U.S.C. § 1361, as well as their ability to avoid the bar against judicial review of discretionary decisions in § 1252(a)(2)(B) of the INA depend wholly on their claim that Defendants owe them a nondiscretionary duty to adjudicate a matter clearly committed to Defendants' discretion.[2] Section 1255 of the INA provides that the status of an alien in Dr. Takkallapalli's position "may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe" if certain requirements are met.[3] Defendants argue that this grants them total discretion with respect to the Takkallapallis' filings, including the pace at which adjudication proceeds. (Doc. # 21). The Takkallapallis concede that the ultimate decision to grant or deny adjustment is discretionary, but claim the Court can order Defendants to adjudicate without interfering with the exercise of Defendants' discretion. (Doc. # 24).
*1098 A. Administrative Procedure Act
The Takkallapallis never specify where they find their proposed nondiscretionary duty to adjudicate, but appear to suggest such a duty arises from a combination of the authority to adjudicate itself and the provisions of the APA requiring agencies "to proceed to conclude a matter presented to it" within a reasonable time and requiring the courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. §§ 555, 706. The Court finds it unnecessary to determine if these sections or any other legal authority creates such a duty. Even if the Court assumes that Defendants owe the Takkallapallis a nondiscretionary duty to adjudicate their petition and application in a reasonable time, the Court finds the Takkallapallis have failed to show that Defendants' conduct to this point has been so egregious as to entitle them to the drastic relief requested.
In determining the reasonableness of a delay, the Court must "consider whether the agency's delay is so egregious as to warrant mandamus." Telecomm. Research and Action Ctr. v. F.C.C., 750 F.2d 70, 79 (D.C.Cir.1984). This rule of reason requires the Court to examine the nature and extent of the interests prejudiced by delay, the effect of expediting delayed action on agency activities of a higher or competing priority, and any relevant timetable or other indication of the speed with which Congress expected the matter to proceed. Id. at 80. Other relevant factors include the extent of the delay and possible justifications for it. Public Citizen Health Research Group v. Comm'r, Food & Drug Admin., 740 F.2d 21, 35 (D.C.Cir.1984).
In the present case, the Takkallapallis filed the petition and application at issue December 17, 2003. Congress has not set any particular time limitation for adjudicating an application, but the three years that have already passed processing Dr. Takkallapalli's name check is significantly longer than the time needed in 90% of the cases processed and well beyond the 120 days the USCIS informed the Takkallapallis the review should take. Unfortunately, in the small percentage of checks that are delayed, a wait of three years or more does not appear to be uncommon.
The nature of the Takkallapallis' affected interests is both personal and professional. The Takkallapallis report the loss of peace of mind while "[t]heir lives are in limbo," unable to enjoy the rights of citizenship. Dr. Takkallapalli also claims his professional prospects are adversely affected by his current status. However, the prejudice caused by the delay is mitigated by the fact that Dr. Takkallapalli has legal permission to stay and work in the United States while these forms are pending.
The Court must weigh the prejudice to the Takkallapallis' interests against the reasons for delay. It is possible to overstate the effects of September 11, 2001, but the increased importance of security checks to national security and public safety as well as the considerable rights of citizenship demand caution and diligence in completing background investigations. The backlog of resubmissions and the sheer volume of name checks do not entirely excuse the substantial amount of time required to process the requests in question, but they do provide sufficient justification for delay. Moreover, expediting delayed actions by a flood of court orders could have a considerable effect on activities the USCIS and the FBI have determined warrant a higher priority.
While the Court understands the Takkallapallis' frustration with a delay that has caused them justifiable consternation, the Court is unable to find Defendants have unlawfully withheld or unreasonably *1099 delayed adjudication under the circumstances. This is not a case where Defendants have refused to consider an application presented to it or delayed without explanation. Upon receiving his application, Defendants promptly interviewed Dr. Takkallapalli and requested the required security checks from the appropriate agencies. Defendants are still awaiting the results of the FBI name check due to the large number of checks, but will be able to process the Takkallapallis' petition and application once it is received. Defendants' conduct to this point has been sufficient to avoid judicial intervention.
B. Mandamus Act
Section 1361 grants the Court "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The common-law writ of mandamus, as codified in this section, is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and only if the defendant owes the plaintiff a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (citations omitted). The Court will exercise its discretion to grant such a writ only in extraordinary situations and then only if "(1) the petitioner can establish a clear and indisputable right to the relief sought, (2) the defendant has a nondiscretionary duty to honor that right, and (3) the petitioner has no other adequate remedy." Castillo, 445 F.3d at 1060-61.
The presumption of a nondiscretionary duty to adjudicate and thus jurisdiction under the APA would seem to preclude mandamus as the APA would afford the Takkallapallis an adequate remedy. In any event, the Court is unable to find these circumstances to be so extraordinary as to justify the Court exercising its discretion to compel Defendants to adjudicate this matter.
CONCLUSION
Based on the foregoing, the Takkallapallis' Motion for Summary Judgment is DENIED and Defendants' Cross-Motion for Summary Judgment is GRANTED. The Takkallapallis' Claim for Mandamus is dismissed without prejudice.
IT IS SO ORDERED.
NOTES
[1] Ms. Takkallapalli argues that the FBI check on Dr. Takkallapalli does not justify any delay in adjudicating her Form 1-130 petition because her petition is not subject to a background check. (Doc. # 24). However, the results of the check could affect the petition in that evidence from the investigation might call into question the credibility of statements made in relation to that petition. See, Razaq v. Poulos, No. 06-2461, 2007 WL 61664 (N.D.Cal. Jan. 8, 2007).
[2] Under the APA, judicial review is not available for actions "committed to agency discretion by law" and for those in which the statute at issue precludes judicial review. 5 U.S.C. § 701(a). Likewise, the Mandamus Act only applies to nondiscretionary acts. Castillo, supra.
[3] This power has since been transferred to the Secretary of Homeland Security and his delegate in the USCIS. 6 U.S.C. §§ 271(b)(5), 557.
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612 F.2d 1182
UNITED STATES of America, Plaintiff-Appellee,v.John E. IRWIN, Defendant-Appellant.
No. 78-3022.
United States Court of Appeals,Ninth Circuit.
Jan. 31, 1980.As Modified March 26, 1980.
1
Michael H. Weiss, San Francisco, Cal., for defendant-appellant.
2
Floy E. Dawson, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.
3
Appeal from the United States District Court for the Northern District of California.
4
Before GOODWIN and WALLACE, Circuit Judges, and JAMESON,* District Judge.
JAMESON, District Judge:
5
John E. Irwin has appealed his conviction of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.
Factual Background
6
In December, 1977, the Denver Police Department arrested Irwin for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. To "work off" the charge, Irwin first gave information that led to the arrest and conviction of his source and later attempted to set up some large scale drug transactions.1
7
In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent who was posing as a large scale drug dealer. Irwin did not know Wisdom was an undercover agent, although Wisdom knew that Irwin was working as a confidential informant for the Denver Police Department. Based upon Irwin's negotiations with Wisdom, two DEA agents later informed the Denver Police that they thought Irwin was "double dealing", i. e., acting as an informant and selling drugs on the side.
8
In March, 1978, Irwin learned through a friend of Sharon Baker, his girl friend, that Frank McLister, who lived in the San Francisco area, might have a pound or two of cocaine to sell. Irwin arranged by telephone to have the cocaine available for a sale to Wisdom. On March 6 Irwin and Baker flew to San Francisco, and Wisdom flew there the following day. After making final arrangements for the sale, Wisdom met Irwin, McLister, Baker, and Thane Rucker, an associate of McLister, in a camper parked outside the San Francisco Hilton. After Wisdom had seen the cocaine, agents arrested Irwin, Baker, McLister, and Rucker.2
9
Irwin and Baker were released on bail and returned to Denver. Between March 17 and April 13, 1978, Wisdom and Irwin engaged in several telephone conversations. Each claims the other initiated the calls. While there is some dispute regarding what was said in most of the telephone conversations, it is apparent that the calls were made without the consent of Irwin's counsel.3 It is conceded that following the telephone conversations, Irwin arranged a meeting in Denver between Wisdom and a potential seller of cocaine from New York. Before any sale was consummated, Wisdom advised Floy E. Dawson, Assistant United States Attorney in San Francisco, what had transpired and was requested by Dawson to have no further contact with Irwin or Baker.
District Court Proceedings
10
Irwin, Baker, McLister, and Rucker were each charged with conspiracy to distribute and distribution of cocaine. Irwin and Baker filed motions to dismiss the indictment on grounds of prosecutorial misconduct and violation of a plea agreement. On the basis of affidavits introduced by both the Government and the defendants, the tape of the April 4 telephone conversations, legal memoranda and oral argument, the district court denied both motions, without an evidentiary hearing. The court stated, however, that any inculpatory statements made by Irwin to Government agents subsequent to his arrest and appointment of counsel would be suppressed.
11
At trial it was the Government's theory that Irwin, although working as an informant for the Denver Police Department, was also trafficking in drugs. Irwin's defense was that he was working as an informant at all times and was setting up the San Francisco sale to "work off" his arrangements with the Denver Police Department.4 The jury returned a guilty verdict against Irwin on both the conspiracy and distribution charges.5
Contentions on Appeal
12
Appellant contends that (1) the indictment should have been dismissed because (a) a Government agent's "gross intrusion into the attorney-client relationship" deprived him of Fifth and Sixth Amendment rights, and (b) he had entered into a dispositional agreement with Government agents and performed his part of the agreement; and (2) the court erred in refusing to instruct the jury that it could find appellant not guilty if he had substantially complied with his agreement to serve as a confidential informant.
13
Violation of Fifth and Sixth Amendment Rights
14
Irwin first contends that Wisdom's post-arrest "approaches constituted a gross subversion of Irwin's Sixth Amendment right to counsel and his Fifth Amendment rights to due process and protection from self-incrimination". He argues that Wisdom importuned Irwin to ignore the advise of his counsel that he not talk to or actively work with police or government agents, and further urged Irwin to resume his activities as a government informant. This conduct, appellant contends, requires that the indictment be dismissed, citing O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (D.C.Cir. 1953), and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (D.C.Cir. 1951).
15
It is clear that government interference with a defendant's relationship with his attorney May render counsel's assistance so ineffective as to violate his Sixth Amendment right to counsel and his Fifth Amendment right to due process of law. It is equally clear, however, that not all police action which arguably could be called an interference with the attorney-client relationship is violative of those rights. The Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), and this court in United States v. Glover, 596 F.2d 857 (9th Cir. 1979), recognize that the Sixth Amendment does not establish any Per se rule and suggest guidelines for determining whether an accused's constitutional rights are violated.
16
In Weatherford v. Bursey, Weatherford, an undercover agent, was charged with Bursey with vandalizing a county selective service office. In order to retain his undercover status, Weatherford continued a masquerade that he was being prosecuted for the incident and on two occasions met with Bursey and his counsel to discuss strategy for the approaching trial. Bursey discovered Weatherford's true status at the trial. After serving an eighteen month sentence, Bursey filed an action under 42 U.S.C. § 1983 alleging that Weatherford's presence at the pretrial conferences deprived him of effective assistance of counsel and due process of law. The district court found for the defendants in all respects, but the Court of Appeals reversed, ruling that "whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." 429 U.S. at 549, 97 S.Ct. at 840, 841 (quoting appeal court's opinion, 528 F.2d 483, 486 (1975)). Reviewing O'Brien, supra and Black, supra,6 the Supreme Court disagreed with the court of appeals' conclusion that these decisions required a Per se rule. The Court stated that "(i)f anything is to be inferred from these two cases with respect to the right to counsel, it is that when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." Id. 429 U.S. at 552, 97 S.Ct. at 842.
17
On the other hand, the Court did not agree with petitioners that whenever a defendant converses with his counsel in the presence of a third party, the defendant assumes the risk and cannot complain if the third party turns out to be a government informer. The Court continued:
18
Had Weatherford testified at Bursey's trial as to the conversation between Bursey and Wise (Bursey's counsel); had any of the State's evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.
19
429 U.S. at 554, 97 S.Ct. at 843 (footnote omitted).
20
The Court also indicated that the purpose of the intrusion was an important factor to consider. Weatherford had not attended the meetings for the purpose of discovering defense secrets. Rather, Bursey had invited him to attend, and legitimate law enforcement objectives required that he continue to conceal his identity.7
21
This court recently considered the effect of Weatherford and other cases bearing on the Sixth Amendment issue in United States v. Glover, supra.8 The police arrested Glover when he attempted to sell stolen gems to an undercover agent. Prior to trial, FBI agents talked to Glover in the absence of counsel. "They told him he would be released if he would reveal the location of the gems and testify against his co-defendants. When he asked if his attorney should not be present, the agents responded she had given her consent to the questioning," but it later became apparent that she had not. 596 F.2d at 859. Although the meeting in the absence of counsel produced no evidence against the defendant at the trial, the defendant moved for dismissal of the indictment because of the FBI's attempted interference with the attorney-client relationship. He argued that prejudice is irrelevant in determining whether a defendant has been denied the right to counsel. Citing Weatherford, we stated that "(n)ot all police action that arguably could be called an interference with the attorney-client relationship is violative of the Sixth Amendment right to counsel." Id. at 863. We recognized that Weatherford was "factually distinguishable from the situation" in Glover9 but did not believe "that the factual distinction overshadow(ed) an important principle to be read from the case: that the existence or nonexistence of prejudicial evidence derived from an alleged interference with the attorney-client relationship is relevant in determining if the defendant has been denied the right of counsel." Id. at 863-864. Since the defendant had not been prejudiced, we found no Sixth Amendment violation.10
22
From Weatherford and Glover and the cases they interpret,11 it is apparent that mere government intrusion into the attorney-client relationship, although not condoned by the court,12 is not of itself violative of the Sixth Amendment right to counsel. Rather, the right is only violated when the intrusion substantially prejudices the defendant. Prejudice can manifest itself in several ways. It results when evidence gained through the interference is used against the defendant at trial. It also can result from the prosecution's use of confidential information pertaining to the defense plans and strategy, from government influence which destroys the defendant's confidence in his attorney,13 and from other actions designed to give the prosecution an unfair advantage at trial.
Prosecutorial Misconduct
23
Appellant argues that the governmental misconduct had a three pronged prejudicial effect: (1) "it elicited incriminating evidence from the defendant"; (2) it "substantially destroyed the defendant Irwin's attorney-client relationship"; and (3) "the officer's questioning of Irwin sought to discover the strategy which Irwin and his counsel were planning for their defense".
24
As stated earlier the district court denied the motions to dismiss the indictment without an evidentiary hearing. If, in fact, a material issue of fact were raised "which if resolved in accordance with (appellant's) contentions would entitle him to relief", an evidentiary hearing would be required. Wright v. Dickson, 336 F.2d 878, 881 (9 Cir. 1964), Cert. denied, 386 U.S. 1012, 87 S.Ct. 1360, 18 L.Ed.2d 444 (1967); see also United States v. Carrion, 463 F.2d 704, 706 (9 Cir. 1972). On the other hand, if the affidavits show as a matter of law that appellant was or was not entitled to relief, no hearing was required.14 All of the affidavits were considered by the district court, and the court concluded that an evidentiary hearing was not required. In determining whether this conclusion was justified and whether appellant was prejudiced by prosecutorial misconduct, we must assume that the factual allegations in appellant's affidavits are true.
25
(1) Incriminating Evidence
26
As the Government concedes, incriminating statements were made. In the conversation between Irwin and Wisdom on April 4 Irwin admitted that both he and Wisdom knew that Irwin was not in San Francisco at the direction of the Denver police. Irwin said also that he had told his attorney that he "went out there unauthorized", that he was "purely on (his) own". In denying the motion to dismiss the indictment, the district judge made it clear that any incriminating statements would be suppressed under the doctrine announced in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).15 The tape recording of the April 4 conversation, which contradicted Irwin's testimony at trial, was not referred to in cross-examination or offered for impeachment purposes. Nor is there any evidence that the incriminating statements in any way altered or affected Irwin's defense. We find no merit in appellant's contention that he was prejudiced by his incriminating statements.
27
(2) Destruction of Attorney-Client Relationship
28
Appellant next contends that the agent's misconduct substantially destroyed his attorney-client relationship. This contention was first asserted in a memorandum filed in support of Irwin's motion to dismiss because of prosecutorial misconduct. We find nothing, however, in the supporting affidavits submitted by Irwin and his court appointed counsel to suggest that Irwin lacked confidence in his counsel or was dissatisfied with counsel's representation. Clearly Irwin did not at any time request new counsel, although his motion to dismiss was denied over two months before his trial commenced.16 The record indicates a competent and vigorous defense on the part of appellant's counsel both at trial and on appeal.
29
The cases of Commonwealth v. Manning, supra, and People v. Moore, supra, are distinguishable. As this court noted in Glover, in Manning in an apparent "effort to convince the defendant to cooperate, the agent made disparaging remarks about counsel and warned that the tactics chosen by counsel would not ensure that the defendant would stay out of jail". 596 F.2d at 861. In Moore the defendant was told "not to inform his attorney about his dealings with the district attorney's office" and one investigator "disparaged the competence of his attorney and falsely said he had been disbarred". Id. at 862, n. 4.
30
There is no evidence here that Wisdom disparaged the competence of Irwin's counsel; nor is there any evidence that Irwin was told not to inform his counsel of his dealing with Wisdom. It is true that Wisdom suggested to Irwin, and Irwin readily agreed, that Irwin suggest to his counsel that an attempt should be made to reach an agreement with the United States Attorney that Irwin should continue to act as an informant. In the tape recorded conversation of April 4, Wisdom said at one point:
31
And the thing about it is if you go in and present this to the U. S. Attorney, okay, this way, out there, then that guy can probably tell you. You can probably have an agreement between your Public Defender and the U. S. Attorney that if, in fact, you did materialize these cases and they went down, then whatever he told you would happen, would happen. You know, it wouldn't be one of these things where ah you'd be going doing something and then we wouldn't do anything for you.
32
Later in the conversation, after Irwin had told Wisdom what he was trying to "put together", Wisdom replied:
33
Okay, well that's, hey, that sounds super but like I say, you know, I just want to make sure that we get that other problem resolved ah before, you know, we start really working. Once that's resolved, hey, I'll work anything you want to work anywhere you want to work however you want to work.
34
Wisdom stated he would call the United States Attorney and tell him that Irwin would like "to talk to him or whatever" and concluded "what I would do is talk to my own attorney first and tell him, hey, this is the way you think it's your best interest to go."
35
While Wisdom's conduct was highly improper, we find no evidence to support the conclusion that it destroyed the attorney-client relationship.17
36
Appellant argues "that the Government did not deny that Agent Wisdom's misconduct did serious damage to defendant Irwin's relationship with his attorney." "Rather", appellant claims, "the (Assistant U. S. Attorney) suggested, 'If the subjective interpersonal relationship between attorney and client has been unalterably damaged in these cases, the proper remedy may be the appointment of other counsel . . .". Appellant suggests that this indicates "the seriousness of the prejudice toward Irwin herein".
37
This is hardly an accurate statement regarding the Government's position. Appellant was seeking dismissal of the indictment. The Government first contended that even in "fairly flagrant factual situations", dismissal is not the remedy, noting that under Massiah, supra, the remedy was exclusion of the statements rather than dismissal. Arguing that Irwin had not been harmed and noting that nothing he said would be used against him, the Government continued with the statement quoted by appellant and urged that "the drastic remedy of dismissal of the indictment is unwarranted."
38
We need not decide what remedy may be appropriate when the relationship between a defendant and his court-appointed counsel is in fact substantially destroyed by Government interference. We have determined that there is no evidence here that any action of the Government destroyed the attorney-client relationship and that the record indicates a competent and vigorous defense by Irwin's court appointed counsel. We find nothing in the record to justify dismissal of the indictment.
39
(3) Discovery of Defense Strategies
40
While it is true that Irwin's counsel and the Assistant United States Attorney discussed the nature of Irwin's defense, it does not appear that Wisdom was seeking to discover defense strategy or that anything was disclosed in the conversations which affected either the prosecution or defense of the case. Defense counsel had revealed the nature of the defense in his initial conference with the prosecutor.18
Dispositional Agreement
41
Appellant contends that he had entered into a postarrest dispositional agreement with agent Wisdom to act as an undercover informant in another investigation in the Denver area in exchange for a dismissal of the charges in this case. He claims that he performed his part of the agreement and that the charges, therefore, should have been dismissed. The Government recognizes the enforceability of bargains of this nature,19 but contends that no bargain was reached in this case.
42
As discussed above, the district court denied the motions to dismiss without an evidentiary hearing. Following an extended colloquy with counsel for the defendants, in which the court referred specifically to the affidavits of Irwin and his counsel, the court concluded that they failed to show that an agreement was reached. He found accordingly that no evidentiary hearing was required. It is necessary to examine in some detail the affidavits of appellant and his attorney to determine whether they raised factual issues requiring a hearing.
43
Irwin, in his affidavit, states agent Wisdom told him that "if (Irwin) would agree to help 'turn a deal' he would talk to the Assistant U. S. Attorney in San Francisco and make a favorable recommendation in the case pending there." A few days later Wisdom called Irwin and told him that "he had talked to the Assistant U. S. Attorney in San Francisco, and while he could not guarantee for sure since the final say-so was up to the Assistant U. S. Attorney, it would be favorable to (Irwin) and (his) interests if (he) would help turn a deal . . . ."
44
Within a day or two thereafter Irwin talked with Weiss, his attorney, who told him of "the three possible dispositions of my case he had discussed with the Assistant U. S. Attorney. One of the possible dispositions he mentioned to me was that if the DEA made a favorable recommendation of its using me, that the charge against me in San Francisco could be dismissed."
45
A few days later Irwin told Wisdom of the person seeking a buyer for several pounds of cocaine and asked Wisdom whether he was interested "and whether he could help (Irwin) get a favorable recommendation". Wisdom replied that he was "very interested". At Wisdom's request Irwin and Baker made arrangements for Wisdom to meet the owner of the cocaine. Finally, Irwin picked up and drove the prospective seller to a Denver bank where Wisdom showed the seller the money for the transaction. Irwin's affidavit concludes:
46
I have not been asked to do anything further at this point regarding this or any other "deal." However, it was my understanding that both my and SHARON BAKER's involvement in this transaction was pursuant to an agreement or understanding I had with agent Wisdom that he would make a favorable recommendation to the Assistant U. S. Attorney in San Francisco regarding the pending charges there, which would then result in the charges there being dismissed.
47
Appellant's attorney, Michael Weiss, in his affidavit stated that Floy E. Dawson, Assistant United States Attorney, told Weiss of three "possible dispositions", one of which was dismissal of the charges in return for Irwin's services as a confidential informant. Weiss relayed the possible dispositions to Irwin. Later Irwin informed Weiss that he and Baker had become confidential informants for Wisdom. Weiss reported this information to Dawson, and that "Irwin and Baker were in the process of setting up a transaction for Wisdom in Denver as part of the agreement or understanding that Wisdom would make a favorable recommendation to Dawson to dismiss the charge. . . ." Dawson told Weiss that "he was not 'committed' or bound by any agreement of Wisdom's" and "had not made up his mind yet what disposition he was going to offer Irwin and Baker." In a subsequent conversation, Weiss was informed by Irwin that Irwin "had continued at agent Wisdom's request to set up a cocaine transaction as a confidential informant". Weiss gave Dawson this information and said that they had become involved in the transaction "pursuant to an understanding that they thought they had with Wisdom". Weiss asked Dawson whether he was going to dismiss the charges. Dawson replied that "he would not agree to dismiss the charges against Irwin, but that the Government "would recommend leniency to the court", and that "he (Dawson) was telling Wisdom to stop all communications with Irwin and Baker immediately and stop using them as confidential informants."
48
Assuming arguendo that these affidavits represent the true facts, they do not show that the Government ever promised to dismiss the charges against appellant. The responses of both Wisdom and the Assistant United States Attorney were qualified. Wisdom never promised that the Government would drop the charges, but only that he would "make a favorable recommendation" and that the ultimate decision rested with the United States Attorney. The Assistant United States Attorney discussed the bargain as a "possible disposition", but never agreed to it. Moreover, after undercover work had begun, appellant's attorney's inquiries as to whether the Government intended to dismiss the charges indicate that he was aware that no bargain had been struck. The parties reached no binding agreement requiring dismissal of the charges. At most, appellant, on his own initiative, decided to act as a confidential informant in return for promises that Wisdom would make favorable recommendations to the prosecutor.20 There are no allegations that Wisdom failed to honor this promise. We conclude that the trial court did not err in denying the motion to dismiss without an evidentiary hearing. The moving papers failed to allege facts sufficient to enable the trial court to conclude that relief must be granted if the facts alleged were proved. See United States v. Carrion, supra.
Jury Instructions
49
At the trial, Irwin claimed he lacked criminal intent in the San Francisco drug transaction because he was acting as an undercover police informant. He otherwise admitted his participation. He now argues that the court improperly rejected two jury instructions on criminal intent and gave other instructions which misstated the law and placed an impermissibly high burden of proof on him. We disagree with these contentions.
50
The trial court rejected the following instructions offered by the defendant:
Defendant Irwin's Instruction No. 1
51
One who, under the direction of an officer of the law or upon his own initiative, and without criminal intent, feigns complicity in the commission of a crime merely for the purpose of detecting the perpetrator thereof, with a view to prosecution of the perpetrator, is not an accomplice, aider and abettor, or conspirator, and you should find not guilty.
Defendant Irwin's Instruction No. 3
52
If you find the evidence in this case is that (1) defendant IRWIN entered into an agreement with the Denver Police Department through its agents to cooperate with it by providing information and to act as a confidential informant, and (2) defendant IRWIN has substantially complied with his part of the agreement, then you must acquit IRWIN on all counts.
53
"Substantially complied with" means defendant IRWIN has provided the basic information and performed as a confidential informant in a manner required of him and that the information provided and conduct performed are in satisfactory compliance with the agreement.
54
Appellant argues that when the sufficiency of his cooperation in a plea agreement is an issue, the defendant/informant is entitled to be found free of criminal intent if he "substantially complied" with his part of the agreement and therefore, that his offered instruction number 3 on "substantial compliance" should have been given to the jury.
55
We cannot agree with appellant that substantial compliance with an agreement to act as an informant necessarily absolves him of criminal intent.21 Defendant's reliance on Palermo v. Warden, Green Haven State Prison, 545 F.2d 286 (2 Cir. 1976) Cert. dismissed 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977), United States v. Carter, 454 F.2d 426 (4 Cir. en banc, 1972) Cert. denied 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974), and United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969) is misplaced. In each of those cases the defendants were attempting to enforce a plea agreement by claiming compliance with their side of the bargain; they were not raising substantial compliance as a defense for committing additional criminal acts subsequent to the agreement, as the defendant does in this case. Where the defendant acts with the intent to profit illegally from the transaction, incidental gain that might be derived on a plea agreement has no relevance.22 Here the trial court instructed the jury, Inter alia, that "the government must prove not only the act . . . but that the acts were done with a criminal purpose." The court also stated that if "the sole purpose was to assist in the apprehension of others who were violators and there's no criminal purpose on the part of the participant, then there would be no criminal responsibility . . ." and that "(t)he basic concern . . . is whether the sole purpose was a lawful one. . . ." We believe these instructions properly informed the jury of the applicable law.
56
Nor do we find any error in the court's failure to give defendant's instruction number 1. The instructions that were given reflected the substance of the rejected instruction. The essence of the defendant's proposed instruction is that one who "feigns complicity in the commission of a crime merely for the purpose of detecting the perpetrator" and assisting in the perpetrator's prosecution is not guilty of a crime. The essence of the instruction23 by the court similarly is that one who feigns complicity for the "sole purpose" of detecting the perpetrator and assisting in his prosecution is not guilty of a crime. We see no difference in the essential meaning of these instructions. The language "merely for the purpose" in defendant's proposed instructions may be interchanged with the language "sole purpose" in the given instructions with no significant change in meaning. We conclude the given instructions neither misstated the law nor could confuse the jury.
57
Finally, we fail to see how the given instruction or the rejection of the "substantial compliance" instruction placed an impermissible high burden of proof on the defendant. The jury was told that "the United States must prove as to each defendant, beyond a reasonable doubt, each of the elements of the offense charged including that the defendant charged in each count acted knowingly and willfully and with the purpose to violate the law."24 Taken in conjunction with other instructions on criminal intent, this instruction accurately apprised the jury of the requisite burden of proof on all elements of the crime including the necessity for criminal intent. See United States v. Elksnis, 528 F.2d 236 (9 Cir. 1975).25
58
The judgment is affirmed.
*
The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation
1
Irwin was allowed considerable freedom in working on the drug transactions and was not required to inform the Police Department of his negotiations until a seizure was imminent
2
At trial, Irwin claimed that he was acting in his capacity as an informant when he set up this transaction
3
A conversation on April 4 between Irwin and Wisdom was taped, and the audio tape was produced and considered by the court on motions to dismiss. In this conversation Irwin stated that his attorney had no knowledge that he was making the call and that his attorney had told him "not to talk to anybody". There was some discussion of possible sale to a New York contact, but Wisdom stated that they would first have to work out something with the United States Attorney and Irwin's attorney in this case. Wisdom suggested that Irwin might tell his counsel that he thought "this was the way" it was in his "best interest to go". In this conversation Irwin also said that he had told his attorney that he went to California "purely on his own" and was not sent by any representative of the Denver Police Department
4
Codefendant McLister's defense was that Irwin was actually the source of the cocaine and had framed McLister
5
Baker was also convicted on both counts. She failed to appear for sentencing and is now a fugitive. McLister was acquitted on the conspiracy charge but found guilty of distribution. Conviction was reversed and the case remanded for a new trial. Rucker was acquitted on both charges
6
In both O'Brien and Black convictions were reversed per curiam because the Government, through illegal electronic eavesdropping, had overheard conversations between the defendant and his counsel prior to trial. The court ordered new trials
7
Bursey's situation presented none of the elements that would require a finding that his constitutional rights had been violated. The contacts did not contribute directly to the evidence since Weatherford's testimony "revealed nothing said or done at the meetings between Bursey and (his attorney) . . . ." Id. 429 U.S. at 555, 97 S.Ct. at 843. It could not be argued that the prosecutor was unfairly advantaged through disclosure of the defense's plans and strategies since the district court had found that Weatherford communicated nothing at all to his superiors or to the prosecution about Bursey's trial plans. "There being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment . . . ." Id. at 557, 97 S.Ct. at 845
8
Glover was decided subsequent to the filing of briefs and shortly before oral argument in the case now before the court. It was not discussed by counsel in oral argument
9
In particular, we noted that in Weatherford "the government agent was invited to attend the strategy sessions between Bursey and his attorney", whereas in Glover "the FBI agents had initiated the contact with Glover"
10
We noted also that even "if Glover could establish that a Sixth Amendment violation occurred, he has cited no federal case that has remedied the violation by dismissal." See also United States v. Owen, 580 F.2d 365, 367 (9 Cir. 1978), where this court recognized that dismissal for governmental misconduct "is an extreme sanction which should be infrequently utilized" and requires a showing of prejudice
11
In addition to Black, supra, and O'Brien, supra, the Court in Weatherford discussed Caldwell v. United States, supra, Coplon v. United States, supra, and Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)
12
In Glover we stated:
We do not condone the behavior of Agent Robinson. We agree with the district court that, had the interviewing agents obtained any evidence that could have been used against Glover, this would be a different case.
Id. at 864.
13
In Glover, we distinguished People v. Moore, 57 Cal.App.3d 437, 129 Cal.Rptr. 279 (1976) and Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635 (Mass.1977), cited by appellant, where Sixth Amendment violations were found partially on the basis that the police had attempted to convey to the defendant that his counsel was incompetent. We discuss these cases later in this opinion
14
As this court said in Carrion, supra, 463 F.2d at 706, "Evidentiary hearings need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved."
15
In Massiah the Court held that the petitioner was denied the guarantee of the Sixth Amendment right to assistance of counsel "when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. at 206, 84 S.Ct. at 1203. As this court noted in Glover, Massiah establishes "an Exclusionary rule for statements obtained as a result of an interrogation conducted after indictment and without the presence of defendant's counsel." 596 F.2d at 864, n. 12
16
The memorandum was filed on April 27 and was heard on May 4. The trial did not commence until July 17. Irwin was present at the hearing on May 4. Nothing was presented at the hearing to show any destruction of the attorney-client relationship. Rather, there was an extensive colloquy between court and counsel on the motion to dismiss on the ground of violation of a plea agreement
17
It may be noted also that Irwin reported to his counsel, and Wisdom reported to the Assistant United States Attorney on their various conversations, although it is not clear whether Irwin told his counsel all that transpired in the telephone conversations, including the April 4 conversation which was taped
The affidavit of Irwin's counsel states, with respect to the initial conversation: "On Friday morning, March 17, 1978, I received a phone call from Mr. Dawson (Assistant U. S. Attorney). He advised me that he had received a phone call from either S.F. DEA agent Richard Camps or Denver agent Darrell Wisdom (I'm not sure which) telling Dawson that my client, JOHN IRWIN, had been in to see Wisdom and was voluntarily offering his services as an informant as consideration for dropping the charges against him and SHARON BAKER here. I told Mr. Dawson that I did not authorize Wisdom to speak to my client or vice versa and did not want Wisdom to have any further contact with Irwin. Mr. Dawson stated he had or would so advise Wisdom but that he intended to use anything IRWIN had said to Wisdom in this case."
18
United States v. Orman, 417 F.Supp. 1126 (D.Colo., 1976), upon which appellant relies, is distinguishable. Orman involved surreptitious eavesdropping by DEA agents of the defendant's consultations with her court appointed lawyer. The court held that "where there is surveillance of attorney-client conferences, prejudice must be presumed . . ."
19
See, E. g., Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Garcia, 519 F.2d 1343 (9 Cir. 1975)
20
It is apparent that both appellant and his counsel recognized that agent Wisdom had no authority to make any binding commitment and could simply make a "favorable recommendation" to the United States Attorney
21
A major difficulty with defendant's proposed instruction is that it would grant the defendant blanket immunity on all future criminal acts so long as he substantially complied with the provisions of his plea agreement. The rejected instruction requires two findings for acquittal: (1) that a plea agreement existed, and (2) that the defendant substantially complied with his part of the agreement. According to this instruction, the defendant could commit criminal acts, such as the transaction in San Francisco, solely for his own benefit, and he would still be absolved of guilt so long as he substantially complied with his plea agreement with the Denver Police Department
22
We do not hold, however, that a person would be guilty of an offense where he participates in criminal activity solely to protect or maintain his undercover status. In such a situation the action might be necessary to continue to fulfill his part of the plea agreement
23
The court instructed the jury that "one is not guilty of an offense if . . . there was no purpose to violate the law" and that there would be no criminal responsibility "if . . . the sole purpose was to assist in the apprehension of others . . . and there's no criminal purpose on the part of the (defendant)." The jury was also told that "(t)he basic concern . . . is whether the sole purpose was a lawful one, that is to help in the apprehension of one or more criminals." The court further clarified the concept of criminal purpose through the following instruction:
Now, if there is, as to any defendant, an intention to gain financial profit from a criminal venture or help someone else to do that, then the intent would not be innocent. And that would be so even though there might be the intention or prospect at some later time to inform the authorities of the activities of one or more of the other participants.
24
In another instruction the court emphasized the burden of proof:
As I say, there are two essential elements. There must be the act forbidden by law and the intent to do the act. Before any defendant can be found guilty of a crime, the government must establish beyond a reasonable doubt that the defendant was forbidden to do the act; that the act was done and that it was done intentionally and purposefully.
As noted earlier, the court also stated that one does not have a "purpose to violate the law" where his "sole purpose was to assist in the apprehension of others."
25
In Elksnis, under circumstances similar to those before us we said that "(i)n reviewing jury instructions, we must judge them in context and as part of the whole trial. Isolated individual statements do not by themselves establish error. The question is whether the complete package was misleading or represented a statement inadequate to guide the jury's deliberations. United States v. Park, 421 U.S. 658, 673-676 (, 95 S.Ct. 1903, 44 L.Ed.2d 489) (1975)." Id. at 238
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Case: 13-10246 Document: 00512732988 Page: 1 Date Filed: 08/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10246 FILED
August 13, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA Clerk
Plaintiff – Appellee
v.
JESSICA CHRISTINE BAGLEY
Defendant – Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-188-1
Before DAVIS, ELROD, and COSTA *, Circuit Judges.
PER CURIAM:**
This appeal presents the question whether the district court committed
plain error when it ordered Jessica Christine Bagley to pay restitution based
on conduct beyond her offense of conviction.
* Judge Costa participated by designation in this case as a United States District
Judge for the Southern District of Texas. Since that time, he has been appointed as a Fifth
Circuit Judge.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-10246 Document: 00512732988 Page: 2 Date Filed: 08/13/2014
No. 13-10246
I.
Bagley pleaded guilty to one count of possessing a forged and counterfeit
security in violation of 18 U.S.C. § 513(a). The security at issue was a blank
counterfeit check. It was one of many that Bagley and others had created using
stolen identities.
Although the count to which she was pleading guilty involved a blank
check and thus caused no loss, the factual resume Bagley signed at the plea
colloquy stated that the penalty for her conviction may include “restitution to
victims . . . which the defendant agrees may include restitution arising from
all relevant conduct, not limited to that arising from the offense of conviction
alone.” The district court also orally confirmed this understanding before
Bagley entered her plea.
The Presentence Report (PSR) noted that restitution is ordinarily limited
to the offense of conviction, but characterized Bagley’s acknowledgement in the
factual resume as an agreement that she would “pay restitution as a result of
all relevant conduct.” The relevant conduct assessment, which was also used
to determine Bagley’s Sentencing Guidelines range, found $7,918.57 in actual
loss attributable to counterfeit checks that were used during the scheme.
Bagley did not object to either this calculation or the PSR’s recommendation
that restitution should include relevant conduct. The district court followed
the PSR and ordered Bagley to pay restitution of $7,918.57.
II.
Because Bagley challenges the restitution order for the first time in this
appeal, we review for plain error. To demonstrate plain error, an appellant
must show an error that is clear and obvious and that affected her substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009) (citing United States
v. Olano, 507 U.S. 725, 732–34 (1993)). If the appellant makes such a showing,
2
Case: 13-10246 Document: 00512732988 Page: 3 Date Filed: 08/13/2014
No. 13-10246
this court has the discretion to remedy the error, but should do so only if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
We first consider whether it was error to impose restitution based on
relevant conduct. “The general rule is that a district court can award
restitution to victims of the offense, but the restitution award can encompass
only those losses that resulted directly from the offense for which the defendant
was convicted.” United States v. Maturin, 488 F.3d 657, 660–61 (5th Cir. 2007).
If the offense is conspiracy or a crime such as wire fraud that includes a
“scheme” as an element, harm resulting from the entire charged conspiracy or
scheme may be included. 18 U.S.C. § 3663(a)(2); United States v. Cothran, 302
F.3d 279, 289 (5th Cir. 2002). The PSR describes a conspiracy and scheme in
which Bagley participated, but she pleaded guilty to the discrete offense of
possessing a forged and counterfeit security. The offense of conviction thus did
not support awarding restitution for all relevant conduct.
A court may, however, award restitution to victims of conduct beyond the
offense of conviction “if agreed to by the parties in a plea agreement.” 18 USC
§ 3663(a)(1)(A). The government contends that Bagley’s written and oral
acknowledgement at the plea colloquy constituted such an agreement. But this
court rejected such an argument earlier this year, holding that a similar
statement in a factual resume was not a plea agreement. See United States v.
Benns, 740 F.3d 370, 378 (5th Cir. 2014). The government, which noted Benns
in a Rule 28(j) letter, argues that Bagley’s more frequent acknowledgements
that she could be subject to restitution based on relevant conduct (both at the
colloquy and in failing to object to the PSR) warrants a different result here.
It remains the case, however, that there was no exchange of consideration that
characterizes a plea agreement. Benns thus controls, rendering the restitution
order an error that was “clear and obvious.” Id. at 377.
3
Case: 13-10246 Document: 00512732988 Page: 4 Date Filed: 08/13/2014
No. 13-10246
Because the error resulted in Bagley having to pay restitution the law
does not require, it affected her substantial rights. United States v. Inman,
411 F.3d 591, 595 (5th Cir. 2005).
That leaves the final consideration under Olano—whether the error
affected the fairness, integrity, or public reputation of the judicial proceeding.
Contrary to the government’s assertion, Benns did find that the restitution
error in that case met this standard. 740 F.3d at 378 (“When a defendant is
ordered to pay restitution in an amount greater than the loss caused, the error
affects substantial rights as well as the fairness and integrity of the judicial
proceeding.” (quoting United States v. Austin, 479 F.3d 363, 373 (5th Cir.
2007))). There is a distinction, however: Benns ordered restitution based on a
relevant conduct calculation that was found to be erroneous, whereas in this
case Bagley has never disputed that her relevant conduct caused loss in the
amount of $7,918.57. Although the former situation has a greater impact on
the fairness and integrity of the proceeding, our court has vacated restitution
orders on plain-error review that imposed restitution beyond the count of
conviction even when the relevant conduct calculation was correct. See Inman,
411 F.3d at 595 (finding that a restitution order for a wire fraud conviction that
included loss beyond the charged dates of the scheme warranted reversal under
Olano); see also, e.g., United States v. Mason, 722 F.3d 691, 694–95 (5th Cir.
2013) (same for a mortgage fraud conviction). That precedent warrants the
same result in Bagley’s case.
III.
For the reasons stated above, we VACATE the district court’s order of
restitution and REMAND to the district court for modification consistent with
this opinion.
4
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
1-25-2005
Coast Auto Grp Ltd v. VW Credit Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1418
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Coast Auto Grp Ltd v. VW Credit Inc" (2005). 2005 Decisions. Paper 1555.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1555
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1418
COAST AUTOM OTIVE GROUP, LTD.,
DELAWARE CORPORATION
d/b/a TSE MOTOR CARS;
ASPEN KNOLLS AUTOMOTIVE GROUP, LLC,
(Intervenor in D.C.)
v.
VW CREDIT, INC., A CORPORATION;
VOLKSWAGEN OF AMERICA, A CORPORATION;
AUDI OF AMERICA, A CORPORATION;
MARGE YOST; MICHAEL RUECKERT; STEPHEN JOHNSON
Coast Automotive Group, Ltd.,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 97-cv-02601)
District Judge: Hon. Garrett E. Brown
Submitted Under Third Circuit LAR 34.1(a)
on March 22, 2004
Before: Roth, Ambro, and Chertoff, Circuit Judges.
(Filed: January 25, 2005)
OPINION OF THE COURT
ROTH, Circuit Judge.
This case concerns a jury verdict in favor of Volkswagen of America and Audi of
America (VOA/AOA) on two claims brought by VOA/AOA’s franchisee, Coast
Automotive Group, Ltd. Coast alleged that VOA/AOA’s failure to make a fair and
equitable allocation of motor vehicles to Coast after Coast lost its line of credit and went
into bankruptcy violated both the New Jersey Franchise Practices Act (NJFPA), N.J. Stat.
Ann. § 56:10-7(e), and the Automobile Dealers’ Day in Court Act (Dealers’ Act), 15
U.S.C. § 1221 et seq. Although the jury decided that VOA/AOA violated § 56:10-7(e) of
the NJFPA by failing to make a fair and equitable allocation, it also found that
VOA/AOA was not liable because Coast failed to substantially comply with the franchise
agreement. As for the Dealers’ Act claim, the jury found that VOA/AOA’s conduct was
not an attempt to coerce or intimidate Coast into giving up or selling its franchise. The
main issues we face on this appeal are whether the jury instruction and related verdict
sheet question addressing § 56:10-9 as a complete defense to liability under the NJFPA
wERE an accurate statement of the law, and whether the jury verdict on VOA/AOA’s
2
defense to the NJFPA claim and the verdict on the Dealers’ Act claim were against the
weight of the evidence.
I. FACTUAL AND PROCEDURAL HISTORY
Coast was an authorized retailer of Volkswagen and Audi vehicles that owned new
vehicle dealerships in Toms River, New Jersey. Beginning in 1991,Volkswagen Credit,
Inc. (VCI), a subsidiary of VOA/AOA, provided Coast with floor plan financing so that
Coast could purchase vehicles for its inventory. In December 1995, VCI called Coast
into default under the provisions of their agreements and, soon thereafter, filed a state
court action in the Law Division of a New Jersey Superior Court seeking repayment of
the debt, VW Credit, Inc. v. Coast Automotive Group, Ltd., et al., Docket No. OCN-L-
1162-96. On December 15, 1995, Coast filed a Chapter 11 petition in the United States
Bankruptcy Court for the District of New Jersey. The bankruptcy action was dismissed
on September 18, 1997. Although Coast lost its wholesale line of credit during the
pendency of the bankruptcy, it continued to acquire inventory by paying with checks or
drafts against its regular checking account or through a series of cash collateral orders
that allowed Coast to use the proceeds from the sale of new vehicles to purchase
replacement vehicles. Because Coast did not have a wholesale line of credit which would
provide for timely replacement of the new vehicle inventory, however, VOA/AOA
representatives had to intervene to get new vehicles assigned to Coast, and then arrange
for and confirm payment and shipment on each new vehicle. This process both delayed
3
and reduced the allocation of new vehicles to Coast. Coast also complained that, in order
to force the dealership to fold, VOA/AOA was deliberately giving it vehicles that were
hard to move such as cars of an undesirable color or cars with stick shifts.
In January 1997, Coast filed a complaint in the Bankruptcy Court against VCI,
several VCI employees, and VOA/AOA, essentially alleging that VCI wrongfully called
Coast into default. That action was withdrawn from the Bankruptcy Court in May 1997
and transferred to the United States District Court for the District of New Jersey. In April
1998 and October 1999, the District Court granted VCI summary judgment on all counts
of Coast’s initial sixteen count complaint. Coast appealed.
Meanwhile, Coast amended its complaint adding two claims against VOA/AOA,
alleging that VOA/AOA failed to provide sufficient inventory to Coast during the course
of Coast’s Bankruptcy proceedings in violation of the NJFPA and the Dealers’ Act.
VOA/AOA amended its Answer in October 1999 to assert a counterclaim under New
Jersey law seeking equitable rescission of its franchise agreements with Coast. 1 The
District Court held a jury trial in September 2001 on the NJFPA and Dealers’ Act claims.
The jury returned its verdict in favor of VOA/AOA on both of Coast’s statutory causes of
action. On October 30, 2002, the District Court entered judgment in VOA/AOA’s favor
on the NJFPA and Dealers’ Act claims. Earlier in 2002, this Court had affirmed in part
1
On October 30, 2002, the District Court rendered a bench opinion on
VOA/AOA’s counterclaim, finding that although Coast made material misrepresentations
in its franchise application, VOA/AOA was not entitled to rescission because it failed to
prove damages. Neither party has appealed the District Court’s ruling.
4
and vacated in part the District Court’s grant of summary judgment in VCI’s favor,
remanding the vacated claims against VCI for trial. Judgment became final on January 8,
2003, when the District Court dismissed the remanded claims against VCI as moot after
Coast had prevailed in the state court action on identical claims against VCI.
As for the state court action, it had proceeded on a parallel course with the Federal
action. In April 1998, Coast impleaded VOA/AOA, alleging the same NJFPA and
Dealers’ Act claims as those raised in the federal action, along with other statutory and
common law claims against VCI. VOA/AOA asserted an identical counterclaim for
equitable rescission of its franchise agreements. In July 2002, the state court denied
VOA/AOA’s summary judgment motion seeking claim and/or issue preclusion as to the
NJFPA and Dealers’ Act claims and the case proceeded to trial in August 2002.2 At the
conclusion of the presentation of evidence, Coast’s NJfPA claims against VOA/AOA
were dismissed with prejudice at Coast’s request. The jury found in VOA/AOA’s favor
on the Dealers’ Act claim. The state court entered judgment in VOA/AOA’s favor on
April 7, 2003. Coast’s state court appeal is pending.
II. JURISDICTION AND STANDARDS OF REVIEW
2
We find no merit in VOA/AOA’s argument that the judgment in the state court
action is entitled to res judicata effect, precluding further proceedings in this Court.
VOA/AOA’s motion to preclude the state action on grounds of res judicata has already
been rebuffed by the New Jersey Superior Court. We agree with Coast that VOA/AOA’s
appeal in this Court of the first adjudication does not constitute a third forum in which the
NJFPA and Dealers’ Act claims are being litigated.
5
We have jurisdiction under 28 U.S.C. § 1291.3 We employ plenary review to
determine whether jury instructions misstate a legal standard. Savarese v. Agriss, 883
F.2d 1194, 1202 (3d Cir. 1989). We look at the entire set of instructions to the jury and
ascertain if they adequately contain the law applicable to the case and properly apprise the
jury of the issues in the case. Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995). A
jury verdict will not be overturned unless the record is critically deficient of that quantum
of evidence from which a jury could have rationally reached its verdict. Swineford v.
Snyder County, Pa., 15 F.3d 1258, 1265 (3d Cir. 1994).
III. DISCUSSION
A. The Jury Instruction and Verdict Sheet
Coast’s main contention is that it was entitled to a verdict on the NJFPA claim
because § 56:10-9 is not a defense to Coast’s 1996-1997 allocation claims. It argues that
the jury instruction and verdict sheet question completely misstated the law and
essentially deprived Coast of its proper NJFPA claim under § 56:10-7(e). According to
Coast, the District Court erred in instructing the jury to excuse VOA/AOA from all
3
Shortly before trial in the federal action in 2001, Aspen-Knolls Automotive
Group, LLC, the contract purchaser of Coast’s franchises, intervened in the federal
action, seeking a ruling that any judgment or other relief obtained by VOA/AOA on its
equitable rescission counterclaim would not adversely impact Aspen’s right to acquire
Coast’s Volkswagen and Audi franchises. None of the District Court orders expressly
disposed of the complaint. Upon review of the parties’ responses to our inquiry as to the
status of the Aspen complaint, we are now satisfied that we have jurisdiction to consider
the matter. VOA/AOA did not prevail on its counterclaim, and thus, it was not necessary
for the District Court to adjudicate Aspen’s complaint in intervention and the Judgment
and Order closing the federal action entered on January 8, 2003, was final as to all claims.
6
liability based on Coast’s alleged substantial noncompliance with the franchise agreement
because VOA/AOA never elected to terminate the contract in the relevant time period and
because no factual nexus existed between Coast’s inequitable allocation claim and the
alleged material breach.
The question before us is whether § 56:10-9 applies in actions brought under §
56:10-7(e). The parties have cited no New Jersey law on point and we have found no
decision of the New Jersey Supreme Court, or of lower state courts, on point. We must,
as a federal court asked to decide an open question of state law, look to the fundamental
principles of statutory construction that would inform the New Jersey court’s
consideration of the issue. New Jersey abides by well-known rules of statutory
construction. In New Jersey, when a statute is clear and unambiguous on its face, “the
sole function of the courts is to enforce it according to its terms.” Velazquez v. Jiminez,
798 A.2d 51, 61 (2002). “All terms in the statute should be accorded their normal sense
and significance.” Id. The “overriding objective in determining the meaning of a statute
is to effectuate the legislative intent in light of the language used and the objectives
sought to be achieved.” McCann v. Clerk of the City of Jersey City, 771 A.2d 1123, 1128
(N.J. 2001) (quoting State v. Hoffman, 695 A.2d 236, 243 (N.J. 1997)).
Section 56:10-9 provides that “[i]t shall be a defense for a franchisor, to any action
brought under this act by a franchisee, if it be shown that said franchisee has failed to
substantially comply with requirements imposed by the franchise and other agreements
7
ancillary or collateral thereto.” Giving these terms their normal meaning, as we must, we
find no support for Coast’s contention that the statutory defense does not apply to actions
brought under § 56:10-7(e). To the contrary, § 56:10-9 provides a complete defense to a
franchisor in “ any action” brought under the NJFPA where the franchisee has itself
committed a material breach of the franchise agreement.
The plain meaning of § 56:10-9 is consistent with the NJFPA’s stated legislative
policy of regulating the responsibilities of both the franchisee and the franchisor. In
Westfield Centre Service, Inc. v. Cities Service Oil Co., 432 A.2d 48, 55 (N.J. 1981), the
New Jersey Supreme Court construed the “good cause” language of § 56:10-5 as limiting
termination of the franchise agreement under the NJFPA only in cases where the
franchisee committed a breach. The New Jersey Supreme Court recognized that the plain
meaning of the “good cause” provision supported the “legislative desire to protect the
innocent franchisee when the termination occurs at the franchisor’s convenience.” Id.
The same can be said of § 56:10-9 and its application to § 56:10-7(e). The statutory
defense does not protect the franchisor from suit brought under § 56:10-7(e) by an
“innocent franchisee.”
This Court and federal district courts have recognized that § 56:10-9 allows a
franchisee’s substantial noncompliance to serve as a complete defense to any action
brought under the NJFPA. See General Motors Corp. v. New A.C. Chevrolet, Inc., 263
F.3d 296, 321 n. 11 (3d Cir. 2001); In re The Matterhorn Group, Inc., Nos. 97B 41274-
8
97B 41278, 2002 Bankr. Lexis 1275 (Bkr. S.D.N.Y. November 15, 2002); Zaro
Licensing, Inc. v. Cinmar, Inc., 779 F.Supp. 276, 286 (S.D.N.Y. 1991) (“It is a defense to
a claim brought under the act [NJFPA] by a franchisee that the franchisee has failed to
comply substantially with the requirements imposed by the franchisor”).
Coast argues that § 56:10-9 is contrary to the common law duty of good faith and
fair dealing as codified in § 56:10-7(e). Even if we assume that § 56:10-7(e) codifies the
common law duty of good faith and fair dealing and that § 56:10-9 effects a change by
providing a defense to franchisors not available at common law, we are not persuaded
that § 56:10-9 is inconsistent with or inapplicable to actions brought under § 56:10-7(e).
In New Jersey, statutes that impose duties or burdens, or establish rights, or provide
benefits not recognized by common law, are subject to strict construction. State v.
International Fed’n of Prof’l and Technical Engrs., 780 A.2d 525 (2001). It is clear that if
the statutory defense makes any change in the common law at all, it does so only with
regard to those cases where the franchisee also breached the franchise agreement. And,
as we have already discussed, § 56:10-9 so construed does not circumvent the
Legislature’s intended purpose for enacting NJFPA, that is to protect the innocent
franchisee.
Accordingly, we conclude that the District Court did not err in its instruction to the
jury with regard to the NJFPA statutory defense. The District Court accurately stated that
VOA/AOA cannot be held responsible under the NJFPA if Coast did not substantially
9
comply with the franchise agreement. And we find that jury question 6 did not misstate
the law in asking “did Defendant’s (sic) prove by a preponderance of the evidence that
Plaintiff failed to substantially comply with requirements of the Franchise Agreement?”
B. The Sufficiency of the Evidence.
At trial, VOA/AOA offered evidence that Coast failed to substantially comply with
its obligations under the franchise agreements in two ways. First, Coast failed to maintain
the required financial arrangements for the purchase of new vehicles. Second, Coast
made material misrepresentations about its financial ability when it applied to become a
dealer. Coast argues that the verdict as to Coast’s substantial noncompliance on
VOA/AOA’s first ground was against the weight of the evidence as a matter of law
because Coast’s method of purchasing vehicles during the bankruptcy period was found
by the Appellate Division of the New Jersey Superior Court to be substantially compliant.
Our review of a jury’s verdict is limited to determining whether some evidence in
the record supports the jury verdict. As VOA/AOA correctly noted, jury question 6 did
not require the jury to specify which one of the two bases for the defense they relied on.
For our purposes we need only find the evidence sufficient as to one of the proffered
bases. We agree with VOA/AOA that the New Jersey Superior Court’s statement in the
context of a preliminary injunction proceeding has no bearing on the facts adduced at trial
in this case, and we find that there is sufficient evidence supporting VOA/AOA’s theory
that Coast breached the franchise agreement by failing to maintain an adequate floor plan
10
for purchasing new vehicles.
But even assuming that Coast was substantially compliant with regard to its
method of purchasing vehicles, we find the evidence is sufficient to support the verdict
based on Coast’s substantial noncompliance in materially misrepresenting its financial
ability in the dealer application. We note that Coast does not offer any argument with
regard to the insufficiency of the factual evidence on the material mispresentation ground.
Coast only contends that such a “breach” was not material. We disagree. Under § 56:10-
6, a franchisor may reject a dealership’s application to transfer a franchise based on lack
of financial ability of the prospective transferee. As in transfer of dealership cases, the
prospective franchisee’s financial ability is a key factor in the franchisor’s decision to
grant a dealership in the first instance. Ensuring that a prospective dealer has the
necessary financial resources to make the franchise succeed ultimately protects the trade
name, image, and good will of the franchisor. See Amerada Hess Corp. v. Quinn, 362
A.2d 1258, 1266 (N.J. Super. 1976) (defining substantiality of noncompliance in terms of
its effect or potential effect on the franchisor’s trademark, trade name, image, and good
will).
Here, Tamim Shansab and Nasir Shansab represented on the dealer application that
their personal investments of $1.6 million and $400,000 respectively were unencumbered.
Nowhere did they disclose that the money actually came from investors in Japan. In a
separate agreement with these investors, Tamim Shansab agreed to repay $1.7 million and
11
to grant the investors a beneficial ownership interest in the dealership. VOA/AOA relied
on Shansab’s representations of his financial ability and those representations were
central to VOA/AOA’s decision to grant the dealership to Coast. Shansab’s failure to
disclose that the money he promised was not his and that investors wholly unknown to
VOA/AOA had an ownership interest in the dealership constituted a material breach of
the express terms of the dealership application. Thus, the evidence was sufficient for the
jury to find under § 56:10-9, that Coast failed to substantially comply with the franchise
dealership application.
Turning to the Dealers’ Act claim, we find that, taken as a whole, all of the District
Court’s jury instructions regarding the Dealers’ Act claim, including the charge on good
faith, accurately stated the law, and that there was sufficient evidence to support the jury’s
finding that VOA/AOA’s conduct did not constitute “coercion, intimidation, or threats of
coercion or intimidation.” 15 U.S.C. § 1221(e). We have held that evidence that a
franchisor advanced its own interests and urged compliance with franchise obligations,
without more, does not constitute coercion under the Dealers’ Act. General Motors Corp.
v. New A.C. Chevrolet, Inc., 263 F.3d 296, 326 (3d Cir. 2001). However, evidence that
the franchisor’s reliance on franchise obligations was pretextual or in bad faith may be
sufficient to show coercion. Id. at 327. Although Coast asserts that it was VOA/AOA
that pressured it to sell its franchise, Coast represented in bankruptcy proceedings that its
inability to maintain adequate floor plan financing caused it to conclude that it had to sell
12
the dealership. The fact that the bankruptcy proceedings were a “going concern” to
VOA/AOA does not itself indicate that VOA/AOA’s reliance on franchise obligations
was pretextual or in bad faith.
Nor did the District Court abuse its discretion in precluding the admission of
evidence as to the allegedly coercive and intimidating actions of VCI employees.
Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341 (3d Cir. 2002) (standard of review).
Coast failed to offer any evidence to show that the actions of VCI employees should be
imputed to VOA/AOA.
We have thoroughly reviewed the remaining arguments on appeal and find them to
be without merit.
The judgment of the district court will be affirmed. VOA/AOA’s motion to
expand the record is denied.
13
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528 F.2d 536
Henry J. KIRKSEY et al., Individually and on behalf of allothers similarly situated, Plaintiffs-Appellants,v.BOARD OF SUPERVISORS OF HINDS COUNTY, MISSISSIPPI et al.,Defendants-Appellees.
No. 75--2212.
United States Court of Appeals,Fifth Circuit.
Feb. 24, 1976.Rehearing En Banc GrantedMay 12, 1976.
Frank R. Parker, Herman Wilson, Lawyers' Comm. for Civil Rights Under Law, Jackson, Miss., for plaintiff-appellants.
Jessica Dunsay Silver, Atty., Appellate Section, U.S. Dept. of Justice, Civil Rights Div., Appellate Division, Washington, D.C., amicus curiae.
Thomas H. Watkins, John M. Putnam, William Allain, Jackson, Miss., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Mississippi.
Before BELL, COLEMAN and GEE, Circuit Judges.
GEE, Circuit Judge:
1
Plaintiffs appeal from the decree of the district court adopting and promulgating a redistricting plan for the election of county supervisors and others1 in Hinds County, Mississippi, a central-Mississippi county and the seat of the state capital. They properly represent a class: all black registered voters of Hinds County qualified to vote for county officers elected from its districts. Their basic complaint is that the court's plan dilutes and cancels out black voting strength for these offices. We affirm.
History of this Litigation
2
In 1969, pursuant to court order, the county was reapportioned to comply with the equal vote requirements of Avery v. Midland County.2 In mid-1971 this suit attacked that plan as wanting section 53 clearance by the Attorney General, as diluting the black franchise, and as malapportioning the county under Avery. A three-judge court, convened at plaintiffs' request to consider the section 5 count, was dissolved when plaintiffs nonsuited that count. In late 1972, the district court, acting on stipulated 1970 census data and after conferring with counsel, found that in light of the 1970 data the 1969 plan clearly malapportioned the county,4 and it ordered the defendant supervisors to submit a new plan correcting the population discrepancies, 'formulated without regard to the race, creed, sex or national origin of any citizen of Hinds County . . ..'
3
The following June, the supervisors filed their recommended plan5 with the district court. Plaintiffs filed timely objections and their own suggested plan, which essentially created two districts out of the black residential bloc in Jackson and joined the remainder of the bloc to three rural districts covering the rest of the county. After a lengthy delay--slightly over a year--trial on the merits was had, and an opinion and judgment followed in April 1975. The opinion incorporated many findings of fact, summarized in significant part hereinafter, a few of which are attacked as erroneous. On the basis of these findings and its conclusions of law, the court approved the supervisors' plan, authorized and directed the supervisors to put it into effect, and rejected plaintiffs' plan.
4
Before us plaintiffs challenge these actions of the district court and seek attorneys' fees.
The Court's Findings
5
The court's findings of fact are extensive and are, in the main, not disputed by plaintiffs.6 They commence with matters relating to the background and history of this litigation, such as the bona fide nature of the 1969 redistricting attempt, the court's directing the defendant supervisors to prepare a new plan, and the requirement that this plan be formulated without reference to race, etc. as criteria.
6
Hinds County is described in them as demographically and economically similar to many other areas of the South:7 a main town or city, in and around which population is concentrated, surrounded by a less-developed and sparsely-populated hinterland. The population figures for Hinds County, by the 1970 census, are noted to be 214,973, of whom 130,590 (60.75%) are white, 84,064 (39.10%) are black, and the remaining 317 (0.15%) are of other races. For the City of Jackson, the proportions are similar: 60.1% (92,651) of its residents are white, 39.7% (61,063) are black, and 0.1% (254) are of other races.
7
Next, the court examines the parties' proposed plans for reapportionment and finds both clearly acceptable, the largest population variance between districts in either being less than four percent. Considering first the defendant supervisors' plan, the court found it
8
does achieve the primary goal of a reapportionment plan of equality of population within constitutional guidelines, while at the same time equalizing as nearly as practical under the circumstances the important subsidiary factors of road and bridge mileage and land area, assigning to each district substantial numbers of both urban and rural residents. This result is accomplished under the Board plan with a minimal disturbance or change of existing election districts and voting places.
9
Noting that '(t)he plaintiffs are critical of the (supervisors') proposed plan's utilization of long corridors into the City of Jackson from the rural land mass in order to achieve the required equalization of population,' the court observed that 'it is absolutely impossible to draw five districts without splitting the urban area of Jackson into five parts and still realize the other desirable planning objectives of equalization of road and bridge maintenance responsibilities and the substantial equalization of areas between the districts.'8 And though 'the utilization of the long corridors into an urban area does create rather unusual looking supervisors' districts,' the court found that the boundary lines of the districts 'do follow, so far as possible, natural boundaries such as rivers, highways, railways, and other landmarks traditionally used to designate district boundaries.'
10
The court next considered expert testimony by the architect of the supervisors' plan that he compiled no racial data concerning the plan before drawing it and, as ordered, gave no consideration to race in his drafting of it. The court found as a fact--a finding that is not assigned as error to us--that race was 'wholly disregarded' in preparation of that plan. Finally, the court set out raw population tables for the pre-1969 districts, for districts under the 1969 plan, and for the supervisors' proposed plan. These show that under the pre-1969 plan blacks held great majorities (about 76% and 68%) in two of the five districts but that these were each egregiously malapportioned under the Avery rule.9 As to the 1969 plan, the figures indicate white majorities in each of its five districts, some probably decisive (68/32) and some perhaps not (54/46), as well as serious, doubtless-invalidating malapportionment.10 The 1973 or proposed supervisors' plan reflected proper apportionment and the following racial proportions in the general population:
11
The court next discussed testimony offered by an expert witness for plaintiffs about voting-age (as contrasted with general) population proportions in the county and, by extrapolation only, in the districts. By this analysis, because of the systematic departure of adult blacks from Hinds County, the black/white voting-age proportions in the county were calculated at roughly 34/66. Admittedly extrapolating on the assumption that this county-wide proportion would hold roughly true for each district, the expert indicated that, as is obvious, the already commanding white majorities in Districts 1, 3 and 4 would be increased, and that the black majorities in Districts 2 and 5 would become voting-age minorities of 48% and 48.6%, respectively. The court thought that these conclusions, though subject to an uncertainty of 1 to 2% inherent in the extrapolation, were 'to some extent' confirmed by calculations from census data made by another of plaintiffs' expert witnesses.11 An offer of proof made by plaintiffs' first expert about registered black voters in Districts 2 and 5 placed the percentages of registered blacks at about 41% for each, though the evidence was excluded because the study from which it was drawn was not offered in evidence, a ruling to which no error is assigned.
12
Next reviewed by the court was a considerable list of discriminatory actions taken in the past against black voters in Hinds County and in the state generally. These include such matters as the total lack of any success by black candidates in county elections, past poll tax, literacy and property qualifications on the franchise, and so on, as well as past behavior of Hinds County supervisors indicating unresponsiveness to the black citizen: systematic exclusion of blacks from jury rolls, maintenance of discriminatory educational facilities in the county, etc., some of which had been removed by past orders of the court itself in earlier cases.12 In this connection, however, the court noted that these practices had decreased rapidly in number and severity in recent years, and that no evidence of denial of registration on racial grounds since enactment of the 1965 Voting Rights Act appeared in the record. In view of this and of testimony about the registration of thousands of eligible blacks since 1965, the court ascribed the failure of Hinds County blacks to register to lack of interest rather than to official discouragement. On these and other considerations detailed in the record, the court found that past abuses have no current significant effect in Hinds County on black access to the political process. So concluding, the court approved the supervisors' plan as offering the 40% black segment of Hinds County's populace a realistic opportunity to elect officials of its choice in two districts and a significant voice in the other three. Plaintiffs' plan was found deliberately to create two 'safe' black districts (66/33 and 68/31), both entirely urban with no significant road or bridge mileage, and thus to fail both on constitutional and practical grounds. Having so found the facts, the district court proceeded to legal conclusions which we will consider shortly. Before doing so, we turn aside to take up the suggestion of the United States as amicus curiae that the court could not implement the plan submitted by the supervisors without submitting it first to the Attorney General for section 5 clearance.
Section 5 Approval
13
Section 5 of the Voting Rights Act of 1965, as amended by 42 U.S.C. § 1973c (Supp.1976), requires clearance from the District Court for the District of Columbia or the United States Attorney General before a state or one of its political subdivisions covered by the Act implements any standard, practice, or procedure with respect to voting different from that in effect on November 1, 1964. According to the Supreme Court in Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971), as interpreted by this circuit in Zimmer v. McKeithan, 467 F.2d 1381 (5th Cir. 1972), rev'd on other grounds on rehearing en banc, 485 F.2d 1297 (1973), section 5 applies to plans produced by political subdivisions reapportioning themselves but not to 'court ordered plans resulting from equitable jurisdiction over adversary proceedings.' Id. at 1383 (emphasis in original).
14
Amicus argues, however, that section 5 applies to court-approved plans unless they are court-formulated. Thus, amicus' rule would subject to section 5's prior-approval requirement those proposed plans that the court adopts as submitted but not those prepared by the court itself or those adapted from a party's suggestions with minor changes. The suggested rule is not a practical one. Under it, for example, a party is penalized13 for submitting a plan thought by the court to be completely adequate but rewarded for the near-adequate submission that requires minor revision. And one plan embodied in a court decree is subjected to screening by the Attorney General, though another--just as fully embodied--is not. More fundamentally, plaintiffs' contention misses the point of Connor and Zimmer.
15
For we think it the true rule that application of section 5 turns on the source from which a plan derives its legal force: if from a state instrumentality, section 5 applies; if from a court, it does not. Here the district court instructed the county Board to develop a plan, found the plan constitutionally acceptable, and ordered its implementation.14 Thus, the plan drew its legal force from the court and does not require section 5 clearance.
Validity of the Plan Adopted
16
One who would offer to a district court a suggested electoral redistricting of such a county as Hinds must walk a narrow line. To begin with, the physical situation presented is inherently difficult: a rural county containing one significant metropolis, which itself encompasses a racial enclave, and a black population that must not be "designedly or otherwise" treated so as to minimize its voting strength. Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376, 388 (1966) (emphasis added), quoting Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 405 (1965).15 On the other hand, the minority "is not constitutionally entitled to an apportionment structure designed to maximize its political advantage."16 And so it appears the designer's lines should17 be drawn so as to avoid favoring and must be drawn so as not to disfavor the minority group of which the internal racial bloc is a part. Perhaps it would be prudent, he may reflect, to draw no lines at all, since their location is such a ticklish matter. But this option is all but eliminated by Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971), and its holding that multi-member districts are not favored in court-ordered plans. Lines must usually be drawn, it seems; and, at least where election districts for county supervisors are concerned, practical considerations urge that they be drawn so as to include proportionate urban and rural areas within each district, since the supervisors' duties are, while perhaps primarily rural-oriented,18 far from exclusively so. Finally, of course, under Avery the districts must contain about the same number of people. A task indeed$ One which, with the addition of only a tincture of malice or exasperation to the cloud of seemingly overlapping negatives set out above, can be cast as impossible.
17
Nevertheless, it is not. We recognize that it is of the essence of a court's duty to articulate the law in such a form that it can be followed. A failure to do so--especially in an area so vexed as this--leaves those who must plan and act without guidance. Worse, enunciation of impractical or conflicting principles leaves them paralyzed, unsure of the criteria by which their conduct will be measured in the event. Our most recent statement or synthesis of the principles governing this case is that of Judge Rives, quoting Judge Hill in part, to be found in his opinion for the panel majority in Gilbert v. Sterrett:
18
The constitutional test actually applied by the district court was stated in its opinion as follows:
19
It is well established that to prove the existence of a constitutionally impermissible redisricting (sic) plan in the absence of malapportionment, plaintiffs must show (1) a racially motivated gerrymander, or a plan drawn along racial lines,3 or (2) the
20
apportionment plan would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.4 An
21
apportionment scheme is not constitutionally impermissible merely because its lines are not carefully drawn to ensure representation to sizable racial, ethnic, economic or religious groups.5
22
Though stated in different language, that standard of law does not differ materially from the standard as variously stated by this Court in Zimmer v. McKeithen (en banc), 5 Cir. 1973, 485 F.2d 1297, 1303; Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191, 193--197; Moore v. Leflore County Board of Election Commissioners, 5 Cir. 1974, 502 F.2d 621, 623, 624; Robinson v. Commissioners Court, Anderson County, 5 Cir. 1974, 505 F.2d 674.
23
509 F.2d at 1390--91.
24
Applying these principles to this case, the rule against racial gerrymanders and plans drawn along racial lines is satisfied by the supervisors' plan. Its draftsman testified that, as instructed, he drew it without reference to race. His evidence is not disputed, and its weight is not overcome by the facial appearance of the plan. On this evidence the district court found it was drawn without reference to race, and its finding is not clearly erroneous. Plaintiffs' plan, to the contrary, obviously runs afoul of the rule and is unacceptable. As noted above, it creates two voting districts, neither with significant road or bridge mileage or rural population, out of the core of the black population concentration in Jackson. Whether or not it is, as the court below found, a racial gerrymander, it is plainly drawn along racial lines alone and is obviously designed to secure two of five seats for the minority enclave while conceding three 'safe' seats to the white majority.
25
It remains to determine whether the supervisors' plan approved by the court below, though not by design, otherwise--that is, unintentionally--operates to minimize minority voting power in an impermissible way. To determine whether that power is minimized, we must first ascertain its proper or natural magnitude, its expectable effect under normal conditions when neither weakened nor enhanced. And this is simply stated: in an infinite series of elections, any 35% of the electorate should elect 35% of the candidates whom it favors or, in other words, it should receive proportionate representation. As applied to any hypothetical five-man board, then, our 35% voting bloc should be represented by two out of five officials favored by it about three-fourths of the time and by only one of the other fourth. This model illustrates its normal voting strength.
26
Plaintiffs are correct when they insist that we consider whether the impact of the black vote in Hinds County is diminished by the proposed plan. Where they err is in their selected model against which diminishment is to be measured. Plaintiffs focus on preserving intact the black geographical cluster in northern and central Jackson and would have us determine diminishment by inquiring merely whether the proposed district lines divide it. But of course they do. Any likely division of the county would do so except one drawn on racial lines with the purpose of securing safe 'black' or 'white' seats on the board of supervisors. Plaintiffs' focus is too narrow, their approach too mechanical, at this stage of the inquiry. There being no intended gerrymander, the proper present focus of inquiry is not a map area19 but the voting power of the entire black populace of Hinds County, and the model against which its claimed diminishment must be measured is, as indicated above, the number of seats on the board proportionate to that population's percentage of the whole.
27
So tested, the conclusion of the district court stands firm that
28
the black voting strength in Hinds County is not minimized or cancelled out by the 1973 Board plan, but on the contrary, the Board plan offers black residents of Hinds County, who constitute less than 40% of the total population thereof, a realistic opportunity to elect officials of their choice, whether they be white or black, in two supervisor's districts and significantly affect the election of county officials in the three remaining supervisors' districts . . ..20
29
In so holding, we are especially mindful of the unusual deference our court has been accustomed to accord the trial court's local perspective in such matters21 and of the results and general course of reasoning in our factually similar recent cases of Gilbert v. Sterrett, quoted supra, Robinson v. Commissioner's Court, supra note 21, Moore v. Leflore County Board, 502 F.2d 621 (5th Cir. 1974), and Howard v. Adams County Board, 453 F.2d 455 (5th Cir. 1972). Finally, we caution drafters of redistricting plans against the temptation to deliberate division along racial lines, geographic or proportional. This is not what we here approve. What we do approve is the preparation of plans honestly devised on nonracial and rational criteria that, when tested against proportional norms, deny to no group an equal access to the political process or a fair chance to realize its full voting potential--even one based on the irrelevant criterion of race.
30
Plaintiffs not having prevailed, they are not entitled to attorneys' fees. See Sapp v. Renfroe, 511 F.2d 172, 178 (5th Cir. 1975).
31
Affirmed.
32
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
33
Before BROWN, Chief Judge WISDOM, GEWIN, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY, GEE and TJOFLAT, Circuit Judges.
BY THE COURT:
34
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
35
IT IS ORDERED that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
1
The supervisors' duties comprise, in main, maintenance of county roads and bridges, care of the needy, levy of county taxes, maintenance of the county courthouse and jail, planning and zoning in unincorporated county areas, and providing for public health and welfare in the county. The supervisors' districts also serve as election districts for members of the county board of education, justices of the peace and constables
2
390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed. 45 (1968)
3
Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970), as amended, 42 U.S.C. § 1973c (Supp. 1976)
4
Finding, also, however, that it was a good-faith effort to comply with the court's order and had resulted in substantial equality in districts as of December 1969, when it was implemented
5
Prepared by independent consultants who followed, as they testified and the lower court found, the court's instruction to disregard race, etc
6
Plaintiffs' factual attack is limited mainly, if not entirely, to one on ultimate facts or legal conclusions of the district court:
(T)he District Court concluded--erroneously we believe--that plaintiffs have failed to prove that their voting strength is minimized or cancelled out 'in any way' by the Board's plan, and that the Board's plan offers Hinds County Blacks a 'realistic opportunity to elect officials of their choice, whether white or black, in two supervisors' districts . . .' (Mem.Op., pp. 26--27). The dispersal of the heavy Black population concentration in Jackson was justified as 'necessary . . . in order to achieve equalization of population with approximate equalization of road mileage and land area' (id., p. 13). Past denials to Hinds County Blacks of equal access to the political process were considered irrelevant (id., p. 33). The court sustained the Board's 1973 redistricting plan as meeting all constitutional requirements, and rejected plaintiffs' alternative plan, based on Census tracts, as 'intentional gerrymandering' to create two safe Black majority districts (id., p. 34).
These latter findings, we contend, are completely inconsistent with the District Court's own findings on fragmentation of Black voting strength, are contrary to the uncontradicted and undisputed evidence in this case, are unsupported by substantial evidence, and are clearly erroneous. Rule 52(a), F.R.Civ.P.
7
See Moore v. Leflore County Bd., 502 F.2d 621 (5th Cir. 1974) (Greenwood, Miss.), noted in the district court's findings, and Howard v. Adams County Bd., 453 F.2d 455 (5th Cir. 1972) (Nachez, Miss.)
8
The court also found that these considerations had 'always' been a legitimate concern of the supervisors. Cf. note 1 supra
9
One of them contained less than six thousand people and the other less than eight thousand, while another district exceeded one hundred thousand in population--the ideal being about forty-three thousand
10
Though not so severe as under the pre-1969 plan: the largest 1969-plan district included just over 51,000 souls and the smallest, 33,336, as compared to the 43,000 ideal
11
Recognized by the court as an expert generally in political science, especially as to political behavior and attitudes, but not in county redistricting. These calculations indicated a black voting-age population in each of the two districts of about 47%
12
E.g., Love v. McGee, 297 F.Supp. 1314 (S.D.Miss.1968) (jury service)
13
In the sense that the plan must pass additional scrutiny before it can become effective
14
Unlike Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975) (per curiam), where the Court required section 5 clearance of a court-approved plan voluntarily enacted by a state legislature. The D.C. Circuit recognized a similar distinction in Harper v. Levi, 520 F.2d 53, 72 & nn. 161, 164, 165 (D.C.Cir.1975), which required section 5 approval of a court-ordered substitute plan adopted by a state legislature after litigation had successfully challenged the legislature's prior, voluntarily enacted plan
15
See cases cited note 7 supra
16
Gilbert v. Sterrett, 509 F.2d 1389, 1394 (5th Cir. 1975), quoting Turner v. McKeithen, 490 F.2d 191, 197 (5th Cir. 1973). See generally Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971)
17
Perhaps 'must' here also, for to favor one of two racial groups seems necessarily to disfavor the other, and each presumably has equal constitutional rights in the franchise
18
See note 1 supra
3
Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972), cert. denied 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972)
4
Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Howard v. Adams County Board of Supervisors, 453 F.2d 455 (5th Cir. 1972), cert. denied 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972)
5
Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971)
19
Of course, the unusual shapes of the proposed districts are important. But the shapes are chiefly relevant to the question of whether the plan is a racial gerrymander. Once we accept the district court's unchallenged findings that the plan was drawn without reference to race and that the districts reasonably follow natural boundaries, see p. 538 supra, the significance of the geographic shapes is almost exhausted. They may, for example, indicate nothing more than a political gerrymander, an inhabitant of the thicket at present out of season to courts. See Jimenez v. Hidalgo County Water Imp. Dist. No. 2, 68 F.R.D. 668, 672--75 (S.D.Tex.1975)
20
This is not to say that other arrangements giving fair effect to a 35% share of the electoral power might not be equally acceptable. As we noted in Turner v. McKeithen, 490 F.2d 191, 197 n. 24 (5th Cir. 1973):
There is no agreement on whether the political interests of a minority group are best maximized by an overwhelming majority in a single district, bare majorities in more than one district or a substantial proportion of the voters in a number of districts. See, e.g., Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512.
21
Robinson v. Commissioner's Court, 505 F.2d 674, 679 (1974); cf. White v. Regester, 412 U.S. 755, 769; 93 S.Ct. 2332, 2341; 37 L.Ed.2d 314, 326 (1973)
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954 F.2d 430
Yvonne D. ZIGLER, Administratrix of the Estate of Brian L.Zigler, Deceased, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 90-3796.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 4, 1991.Decided Jan. 17, 1992.As Amended Jan. 30, 1992.
1
James L. Crawford, Effner, Wagner & Crawford, Terre Haute, Ind. (argued), for plaintiff-appellant.
2
Gerald A. Coraz, Asst. U.S. Atty., Deborah J. Daniels, U.S. Atty., Thomas E. Kieper, Asst. U.S. Atty. (argued) Indianapolis, Ind., for defendant-appellee.
3
Before COFFEY, and EASTERBROOK, Circuit Judges, and MORAN, Chief District Judge.*
4
MORAN, Chief District Judge.
5
Brian L. Zigler was a young man when he died on November 7, 1984, in a tragic construction accident. For his family his death came many many years too early. For the purposes of this Federal Tort Claims Act case his death came, unfortunately, two months too early. The trial court found that the decedent's negligence was a contributory factor in the accident. That finding is not clearly erroneous. And, since Indiana did not adopt a comparative fault statute until January 1, 1985, Ind.Code § 34-4-33-1 et seq., that contributory fault bars recovery. We affirm.
6
At the time of his death Zigler was employed as a day laborer by Able Associated Enterprises, Inc. ("Able"), a contractor doing remodeling work at the Crane Naval Weapons Support Center ("Crane") in Crane, Indiana. The contract between Able and the United States left performance of the contract, including compliance with safety requirements, primarily up to Able, but it also provided that the "Contracting Officer will notify the Contractor" of noncompliance with safety requirements and authorized the Contracting Officer to stop the work if prompt corrective action was not taken.
7
The project was, essentially, the construction of a three-story building within an existing building. By November 7, 1984, a third floor concrete deck was in place. Almost three weeks earlier the responsible government officer had noted that no barrier was installed across the third floor deck and directed the contractor to install a barrier. The contractor stretched a single rope across the entire edge of the third floor, with one pole in the center as a support. Upon being advised the following day that the barrier was unsatisfactory, the contractor then welded stanchions, about ten feet apart, along the edge, and strung a rope about waist high along the stanchions. That barrier did not conform to government safety requirements, but the government officer did not require anything further. On November 7, 1984, Zigler, while operating a core drilling machine, was thrown into the rope barrier, slipped beneath it and fell twenty-two feet to his death on the concrete floor below. The trial court concluded that the discretionary function exception to the Federal Tort Claims Act did not exempt the government from liability, that the government's negligence was a proximate cause of the accident but that the decedent had himself been contributorily negligent, and because that negligence was also a proximate cause of the accident his estate could not recover.
8
The government contends that this action is indeed barred by the discretionary function exception, but we do not reach that issue because plaintiff cannot prevail in any event. Because the statute, 28 U.S.C. § 2680(a), does not waive sovereign immunity with respect to discretionary function claims, the trial court, at least conceptually, lacked subject matter jurisdiction in the event that the government's conduct here involved the exercise of a discretionary function. Subject matter jurisdiction is ordinarily a threshold issue, but under the Federal Tort Claims Act the discretionary function exception is shorthand for invoking a judicial responsibility for determining the scope of governmental accountability for its conduct. Whether or not the government has a legal duty to a plaintiff depends on the circumstances, an often fact-intensive inquiry no different from the determination of whether or not it exercised reasonable care. See Allen v. United States, 527 F.Supp. 476 (D.Utah 1981); Kratzke, The Convergence of the Discretionary Function Exception to the Federal Tort Claims Act with Limitations of Liability in Common Law Negligence, 60 St. John's L.Rev. 221 (1986). We see no reason why we necessarily must determine that issue first, or at all, if another issue is dispositive. We also note that on more than one occasion federal courts have ruled that contractual oversight provisions similar to those here have not shielded the government from liability. Routh v. United States, 941 F.2d 853 (9th Cir.1991).
9
We turn then to the evidence in the record which led to the determination that Zigler was contributorily negligent. That is a determination we can reject only if, in the light of the evidence most favorable to the defendant, it is clearly erroneous. And it is not.
10
The accident happened while Zigler was operating a core drilling machine. A core drilling machine, which is rather similar in appearance and operation to a drill press, is a specialized machine used to drill large holes in concrete. The decedent was an experienced construction worker but he was unfamiliar with the core driller. His supervisor asked him if he knew how to operate it, he replied that he did, and then he looked around for a knowledgeable co-worker who could help him operate the equipment. The co-worker he found had but limited experience--he had used the core driller once before, the previous day.
11
The core driller is mounted on a stand and has a spigot for attachment to a hose, so as to provide a flow of water to the bit. The stand should be secured by being bolted to the floor, by a vacuum pad or by a jack screw to the ceiling. The core driller is, however, often, perhaps even customarily, used without the stand being secured. The flow of water helps clear the bit of concrete chips and powder created by the drilling, thus lessening the possibility that the bit will jam, and it cools the bit. If the bit jams, the drill may stop, the clutch may slip or, as what happened here, the core driller, including the stand, may twist.
12
The two men drilled two holes without major incident. Both stood on the stand with one operating the drill while the other poured water from a can into the spigot when the bit showed a tendency to jam. They did not connect a hose, none being readily available. The third hole was eight inches from the edge of the deck. Neither man was wearing a harness with lifeline. That equipment was available but no hookup point was readily accessible. The co-worker was providing water on occasion and Zigler was operating the driller when the bit jammed. The core driller rotated and Zigler went off the stand and over the edge.
13
Plaintiff argues that the trial court articulated the proper standard for contributory negligence under Indiana law, failure of a person to exercise that degree of care and caution for his own safety which an ordinary, reasonable and prudent person in similar circumstances would exercise, but then failed to follow that standard. She contends that Zigler's conduct was viewed from the perspective of persons with considerable experience in operating core drillers, not from the perspective of a worker who had never used the machine before. If the trial court had determined that the decedent should have known that he had to anchor the core driller, that argument would be more persuasive. The core driller was often used, indeed demonstrated at trade shows, without being anchored. Zigler had no reason to even know about vacuum pad accessories. But that is not what the trial court determined. What the court concluded was that one in Zigler's position either would know or should have recognized that he did not know how to operate the equipment, that he was operating a machine with a powerful rotational thrust within eight inches of a twenty-two foot drop to a concrete floor, that the rope barrier was wholly inadequate, that a proper flow of water was not being directed to the bit, that the bit would bind from time to time, and that when the bit bound without the breaker tripping or the clutch slipping, the core driller and stand would tend to twist. A person standing on the base would, in those circumstances, likely lose his balance and be forced off the base. The risks associated with the sudden movement of such power equipment at ground level may be minimal, but the decedent was operating the core driller at the edge of an obviously dangerous drop.
14
What the decedent should have done was not the issue before the court--seeking advice on securing the equipment, wearing a harness, insisting on an adequate barrier, staying off the base or operating the equipment from a sitting position were perhaps all possibilities. What the court concluded is that one in Zigler's position should have known that the way he was doing it was dangerous, and unreasonably so. Indeed, Zigler himself apparently recognized that he was at some risk because he joked with his co-worker about being killed just moments before the accident. We cannot conclude that the trial court's determination was clearly erroneous.
15
Finally, plaintiff urges upon us the doctrine of enhanced injury. We believe, however, that the district court correctly determined that the doctrine of enhanced injury was not applicable here.
16
Plaintiff argues that the concept of "enhanced injury" is merely an extension of the concept of proximate cause. Since Zigler's injuries would have been minor or nonexistent if there had been an adequate barrier, then the lack of a barrier was the proximate cause of his death. She analogizes the enhanced injury concept to the principles inherent in the last clear chance doctrine, describing Zigler's conduct as at most a remote cause, and the lack of a proper barrier as the proximate cause--it being reasonably foreseeable that someone would fall if the only protection was a single strand of rope.
17
The "enhanced risk" concept in Indiana law finds its clearest expression in product liability cases. Since Huff v. White Motor Corp., 565 F.2d 104 (7th Cir.1977), a manufacturer has had a duty to design so as to avoid unreasonable risks when there is a collision. Jackson v. Warrum, 535 N.E.2d 1207, 1215 (Ind.App.1989). Collisions are reasonably foreseeable and the concept recognizes preventable injuries attributable to inadequate design as proximately caused by that defective design. Miller v. Todd, 551 N.E.2d 1139 (Ind.1990). The concept, however, as plaintiff points out, also finds expression in negligence cases. Because collisions are reasonably foreseeable, a defendant is accountable for negligence that enhances the risk of harm upon sudden impact. Harper v. Guarantee Auto Stores, 533 N.E.2d 1258 (Ind.App.1989).
18
In that case, however, there was no basis for charging the plaintiff with any negligence and, if there had been, comparative fault would have applied. Here we are controlled by the "all-or-nothing" rule of contributory negligence, with its limited exceptions to the bar against recovery. See Roggow v. Mineral Processing Corp., 698 F.Supp. 1441 (S.D.Ind.1988), aff'd 894 F.2d 246 (7th Cir.1990). Neither the last clear chance doctrine nor superseding and intervening cause are applicable here because Zigler's peril was not compounded by the government's subsequent negligence. Both the government's negligence and the decedent's contributory negligence were concurrent contributing causes for the fatal accident, and that, unfortunately for plaintiff, bars recovery.
*
The Honorable James B. Moran, Chief Judge of the United States District Court for the Northern District of Illinois, is sitting by designation
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882 So.2d 1047 (2004)
James Everett WALDROP, Appellant,
v.
STATE of Florida, Appellee.
No. 1D03-3490.
District Court of Appeal of Florida, First District.
August 19, 2004.
*1048 Nancy A. Daniels, Public Defender; A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
In this direct criminal appeal, appellant seeks review of an order denying his motion to withdraw his plea. Because it is apparent from the record that appellant entered his plea based upon erroneous information given to him by his attorney, we reverse.
At the hearing on the motion to withdraw the plea, appellant's attorney testified that, prior to the plea, he misinformed appellant that a withhold of adjudication of guilt, probation, and no sex-offender registration were possibilities at sentencing. The plea colloquy corroborated this insofar as the attorney confirmed with appellant that the trial court could withhold adjudication and order probation if it chose to do so. The attorney further testified that the plea strategy was premised on having the opportunity to convince the trial court to withhold adjudication and place appellant on probation without requiring sex-offender registration. However, the attorney conceded that had he known that appellant's scoresheet called for a minimum term of incarceration, he would have pursued a different strategy because it would have been fruitless to argue for a withhold of adjudication. According to the attorney, appellant entered his plea based on a false assumption. "A defendant who enters into a plea under a mistake or misapprehension about sentencing possibilities should be permitted to withdraw his plea." Ganey v. State, 873 So.2d 445, 447 (Fla. 2d DCA 2004). Accord Johnson v. State, 834 So.2d 384 (Fla. 2d DCA 2003).
The record demonstrates that "a manifest injustice" would occur were appellant not permitted to withdraw his plea. See Fla. R.Crim. P. 3.170(l). Accordingly, the trial court abused its discretion when it denied appellant's motion to withdraw his plea. The order denying that motion is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED, with directions.
WOLF, C.J., BARFIELD and WEBSTER, JJ., concur.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 29, 2018
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2172
(D.C. No. 1:12-CR-00159-MCA-3)
KIMBERLY ROMERO, (D. N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before MATHESON, McKAY, and McHUGH, Circuit Judges.
Defendant Kimberly Romero appeals the revocation of her supervised release for
violation of its conditions. Reviewing the district court’s decision under an abuse-of-
discretion standard and its legal conclusions de novo, we affirm the ruling.
In January 2013, Defendant was convicted of possession and conspiracy to possess
with intent to distribute methamphetamines. See 21 U.S.C. §§ 841(b)(1)(A), 846. She
was sentenced to forty-six months in jail, followed by sixty months of supervised release
beginning October 30, 2015. As a condition of her supervised release, Defendant was
*
This order and judgment is not binding precedent, except under the doctrines of
law of this case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prohibited from “commit[ting] another federal, state, or local crime.” (Second Supp. R.
at 17.)
In April 2017, Defendant’s probation officer filed a petition for revocation of
Defendant’s supervised release based on allegations that Defendant had committed the
crime of child abuse.1 The alleged crime came to light on March 31, 2017, when a
Catholic Charities day care requested an investigator from the New Mexico Children,
Youth & Families Department to come and speak with Defendant’s three-year-old son,
who “had been allegedly beaten with a belt.” (R. at 135.) The day care also contacted
the Bernalillo County Sheriff’s Department, which dispatched an officer to the scene.
Child care staff members discovered the boy’s injuries—“extensive patterned bruising
involving the buttocks, thighs and left forearm as well as additional bruises to the
back”—when helping him go to the bathroom that afternoon. (First Supp. R. at 17.)
Upon arrival, the CYFD investigator examined the child’s bruises, including some that
appeared to have been inflicted by the belt buckle. During a one-on-one interview, the
child told the investigator that “Daddy2 did this,” “Daddy hurt me,” and “Daddy gave me
owees,” but made no statements about physical abuse from his mother. (R. at 137.)
Defendant was charged in New Mexico State Court with (1) abandonment or
1
abuse of a child resulting in great bodily harm contrary to N.M. Stat. Ann. § 30-6-1-(D),
and (2) conspiracy contrary to N.M. Stat. Ann.§ 30-28-2, based upon conduct described
in an arrest warrant affidavit accompanying the criminal complaint. Though this criminal
complaint was not attached to the petition for revocation and was later dismissed without
prejudice, the district court determined that the petition’s inclusion of a “violation report”
provided Defendant with sufficient notice as to the “specific acts or omissions underlying
the alleged unlawful conduct.” (R. at 68.) Defendant does not appeal this determination.
2
The child, who has no contact with his biological father, refers to his mother’s
boyfriend, Cain Suarez, as “Dad” or “Daddy.” (See R. at 171.)
2
When Defendant arrived to pick up her son, she initially told the officer that she
was responsible for her son’s injuries. She later explained that she had asked her
boyfriend, Cain Suarez, to help discipline her son because he had been misbehaving at
school and Mr. Suarez had previously told Defendant that she “babied” her son too much.
(R. at 149.) According to the CYFD investigator, Defendant said that Mr. Suarez had
taken the child upstairs while she remained downstairs in the kitchen. She stated that she
heard Mr. Suarez ask the child what had happened at school that day, but could not hear
her son’s response. She then heard what she believed to be the sound of a belt being
removed from pants, followed by the sound of five spanks. Defendant then went
upstairs, where she saw her son with his pants down and Mr. Suarez with a belt in hand.
Due to her “shock” at what she was seeing, she observed two additional spanks before
she intervened. (R. at 140.) Defendant told the officer that Mr. Suarez “bec[a]me very
confrontational” and complained that she had “ask[ed] him to help discipline and then
contradict[e]d his form of discipline.” (R. at 206.) Defendant packed her things and left
Mr. Suarez’s home with her son, arriving at her mother’s house late that evening.
Following these conversations at the day care center, Defendant and the
investigator briefly stopped at Defendant’s mother’s home before taking the child to the
emergency room at the University of New Mexico Hospital Pediatrics Department for an
examination. There was initially concern about a possible healing fracture in the boy’s
left arm, but this was ruled out following further examination. Based on her interviews
and the exam, the CYFD investigator created a safety plan describing the events,
Defendant’s lack of proper response, and other safety concerns, including “reported
3
issues with domestic violence in the home between [Mr. Suarez] and [Defendant].” (First
Supp. R. at 55.)
The CYFD investigation also revealed a handful of alleged prior events
concerning Defendant’s son which had led to “unsubstantiated” claims of abuse. On
September 24, 2016, the child had allegedly stated that “Daddy did it,” when day care
staff asked about some bruising on his cheek and a possible bite mark. (R. at 171.) Then,
on November 27, 2016, the child again told day care staff members that “Daddy” had
given him the scratches on his cheek. (R. at 172.) The boy gave the same answer—“Dad
did it”—when asked about “what appeared to be bruis[ing] and infect[ion]” on three of
his fingers in January 2017. (R. at 172-73.) When CYFD looked into these reports in
January 2017, the department made contact with Defendant and her son, who was “very
non-verbal” due to his young age. (R. at 173-74.) Because of this, “the investigator based
the judgment [that the claims could not be substantiated] mainly on statements from
[Defendant], at which point the perpetrator was not identified. It was said to be an
unknown father or unknown boyfriend.” (Id.) During her testimony, the CYFD
investigator explained that “unsubstantiation” just means that CYFD “can’t prove one
way or the other what happened,” which is common for cases with very young children
who are “very limited in what they can say or what they know how to say.” (R. at 174.)
“If the child can’t tell [the CYFD investigator] what happened, themselves, [CYFD] can
only base [its conclusions] off of statements made by the parents,” as it did in
Defendant’s son’s case in January 2017. (Id.)
4
On June 16, 2017, Defendant filed a motion to dismiss the revocation proceedings
and to reinstate her term of supervised release. On July 11, 2017, the court held an
evidentiary hearing on the petition and on the motion to dismiss. After hearing testimony
from the CYFD investigator, responding officer, and probation officer, the court was
unable to reach a decision and held another evidentiary hearing on August 10, 2017. At
this second hearing, the judge explained that she was inclined to grant the motion to
dismiss, but wanted to hear what the parties had to say. During the course of the hearing,
the government focused heavily on the argument that Defendant had committed criminal
negligence because the three unsubstantiated CYFD reports at the very least put
Defendant on notice that she should not leave her son alone with Mr. Suarez. The
government also placed heavy emphasis on the fact that Defendant had not taken the
child to a hospital, had not told her mother, had not called her probation officer, and had
not called CYFD about the incident. By the end of the hearing, the judge explained that
she would need more time to reach a decision in light of the things she had heard at the
hearing.
At a third hearing on August 25, 2017, the court entered an opinion finding that
Defendant had violated New Mexico’s child abuse statute, N.M. Stat. Ann. § 30-6-1(D).
In so finding, the judge placed a great deal of weight on the fact that Defendant had
entrusted her child to her boyfriend when that same child had stated this man had hurt
him on at least three prior occasions. Although CYFD had not been able to substantiate
those reports, the judge said that this did not matter in light of the child’s “tender age.”
(R. at 296.) The judge further determined that Defendant not only failed to take action to
5
stop the punishment before it happened, but did not protect her son once she heard the
belt strikes—all of which contributed to the negligent child abuse. The district court
found Defendant had violated the condition of her supervised release and sentenced her
to ten months in prison and another term of supervised release of forty-eight months.
Defendant now appeals.
We review revocation of a defendant’s supervised release for abuse of discretion.
United States v. LeCompte, 800 F.3d 1209, 1215 (10th Cir. 2015). We review the district
court’s legal conclusions de novo. Id. To revoke a term of supervised release, a district
court must find by a preponderance of the evidence that a defendant violated a condition
of that release. See 18 U.S.C. § 3583(e)(3); United States v. Disney, 253 F.3d 1211, 1212-
13 (10th Cir. 2001). A preponderance of the evidence means that the evidence,
considered in light of all the facts, proves that something is more likely so than not.
Harvey v. General Motors Corp., 873 F.2d 1343, 1349 n.2 (10th Cir. 1989).
Here, the government has alleged that Defendant violated New Mexico statute §
30-6-1(D), which provides as follows:
D. Abuse of a child consists of a person knowingly, intentionally or negligently,
and without justifiable cause, causing or permitting a child to be:
(1) placed in a situation that may endanger the child’s life or health; [or]
(2) tortured . . . or cruelly punished[.]
New Mexico statute § 30-6-1(A)(3) further provides:
(3) “negligently” refers to criminal negligence and means that a person
knew or should have known of the danger involved and acted with a
reckless disregard for the safety or health of the child.
6
Thus, the key issue in determining whether Defendant violated a condition of her
supervised release comes down to this: whether a preponderance of the evidence proved
it was more likely than not that she knew or should have known that allowing Mr. Suarez
to discipline her son would place the child in a situation that could endanger his health
and safety or permit him to be cruelly punished. After three evidentiary hearings and
extensive deliberation, the district court concluded that it did.
Based on a review of New Mexico child abuse case law and the available facts, the
district court “infer[red] that Defendant knew that [Mr.] Suarez had physically abused
Child on more than one occasion prior to this incident.” (R. at 72 [citing State v. Leal,
723 P.2d 977, 981 (N.M. Ct. App. 1986) (indicating that where the defendant has
knowledge of past abuse, it may be permissible to infer that she understood the risk of
further abuse associated with leaving the child alone with the abuser), abrogated on other
grounds by Santillanes v. State, 849 P.2d 358 (N.M. S. Ct. 1993)].) The court further
made the inference that “when Defendant asked [Mr.] Suarez to help discipline the child,
. . . Defendant understood that [Mr.] Suarez’s method of ‘discipline’ would likely involve
physical punishment.” (R. at 72 [citing State v. Kuykendall, 2014 WL 5782937, at *1-4
(N.M. Ct. App. 2014) (holding that the defendant’s act of leaving a child alone with her
boyfriend notwithstanding his history of abusing the child supported a conviction for
permitting child abuse)]. The court ultimately concluded:
Defendant was put on notice of Suarez’ potential for abusive behavior.
Nevertheless, she permitted Suarez to take Child upstairs to be
“disciplined” while she remained downstairs, and she continued to remain
downstairs even though she heard Suarez remove his belt and strike Child
with it five or six times. In other words, Defendant not only failed to take
7
any action to abate the prospective punishment before it occurred—for
example by asking Suarez to “discipline” Child in her presence, by
appropriate means, or by instructing him to refrain from physical discipline,
but she also failed to take action once the abuse started—choosing instead
to passively permit Child to be stricken with a belt seven or eight times.
(R. at 72-73.)
After our own careful review of the record, the law, and the district court’s
reasoning, we affirm this ruling. Given that Defendant had conversed with a CYFD
investigator about her son’s prior injuries and the boy’s statements that “Daddy did it,”
we concur with the district court’s inference that the Defendant was on notice of Mr.
Suarez’s potential for abusive behavior. Mr. Suarez had already criticized Defendant for
“babying” the child, suggesting his belief that there should be some type of escalation in
punishment for misbehavior, which foreseeably could lead to physical abuse. These
circumstances, coupled with the fact that Mr. Suarez had some history of violence toward
Defendant herself, should have given Defendant pause in asking for Mr. Suarez’s help
with discipline and in allowing him to go upstairs with her son while she remained in the
kitchen because she knew or should have known her son might be at risk of harm from
Mr. Suarez. See State v. Nichols, 363 P.3d 1187, 1193 (N.M. S. Ct. 2016) (determining
that the New Mexico legislature drafted § 30-6-1(D) so that “both active and passive
abusers [who permit child abuse] would be held equally responsible.”). We concur with
the district court’s legal and factual determinations that there is sufficient evidence to
conclude that Defendant’s actions more likely than not constituted a violation of N.M.
Stat. Ann. § 30-6-1(D) and, therefore, that Defendant violated a condition of her
supervised release.
8
We accordingly AFFIRM.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
9
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166 Ariz. 191 (1989)
801 P.2d 426
MECHANICAL AIR ENGINEERING COMPANY, an Arizona corporation, Plaintiff-Appellee,
v.
TOTEM CONSTRUCTION COMPANY, an Arizona corporation, Defendant-Appellant.
No. 1 CA-CIV 9924.
Court of Appeals of Arizona, Division 1, Department D.
May 9, 1989.
Warner, Alvarez, McCarthy & Palmer by Donald R. Alvarez, Phoenix, for plaintiff-appellee.
Sternberg, Sternberg & Rubin by Ronald I. Rubin, Phoenix, for defendant-appellant.
OPINION
GRANT, Chief Judge.
This appeal raises a question of first impression: whether a liquidated damage provision in a contract is enforceable only upon a showing of actual damages. The appeal is taken from a partial summary judgment on the liquidated damage issue, an arbitration award and an award of attorney's fees.
FACTS
Totem Construction Company (Totem) was the general contractor on some remodeling and construction at Glendale Community *192 College. Mechanical Air Engineering Company (MAECO) was a subcontractor, furnishing labor and materials for heating, ventilating, air conditioning, sheet metal, and plumbing work. The parties agreed in paragraph 19 of their contract to damages in the amount of $350 for each day of MAECO's delay:
The SUBCONTRACTOR will cooperate with the CONTRACTOR and other SUBCONTRACTORS whose work might interface with the SUBCONTRACTOR'S work and will participate in the coordination of such interface as required, specifically, noting and advising the CONTRACTOR of any interference. The CONTRACTOR, however, will not be liable to the SUBCONTRACTOR for any delays in scheduling the work to be performed by the SUBCONTRACTOR, or any damages arising from such delays. SUBCONTRACTOR and CONTRACTOR agree that if the SUBCONTRACTOR fails to perform within the time specified on the progress schedule posted at the project site, that damages will occur to the CONTRACTOR but that such damages while capable of calculation are not capable of being specifically known at this time. Therefore in lieu of proof of such damages SUBCONTRACTOR and CONTRACTOR agree that a reasonable sum for such damages (and not as a penalty) is the sum of $350.00 per calendar days in excess of the time specifically and that such shall constitute liquidated damages agreed to.
MAECO sued Totem alleging that $16,000 was owed on its subcontracts and change orders. Totem counterclaimed, alleging that MAECO caused 46 days of delay and seeking $16,100 under the stipulated damage clause.
MAECO moved for summary judgment on the counterclaim, arguing that the damage clause was unenforceable because Totem suffered no actual loss as a result of any delay in completion of construction. In support of its motion, MAECO attached Totem's response to interrogatories indicating that Totem had been paid the general contract price on the project, $634,198 by Glendale Community College, and that no damages, back charges, or offsets had been assessed against Totem as a result of any construction delays.
Totem filed a cross-motion for summary judgment, arguing that it was immaterial whether it had been assessed any damage under its general contract. MAECO claims that Totem provided no evidence that it had incurred any actual loss as a result of MAECO's delay or that its actual loss was difficult to prove.
The trial court granted MAECO's motion for partial summary judgment because Totem failed to show any loss:
THE COURT: Gentlemen, I think that the way I understand the law, the liquidated damage provision is enforceable if there is some showing of damages. I don't see any.
I'm going to grant the motion of Maeco and deny the motion of Totem. I am setting it forth on the record on that specific issue. I may be wrong. I think there has to be some showing of some damage to trigger the concept that it would be difficult to assess the value of that damage.
The trial court entered judgment in favor of MAECO for $16,101.63. The trial court also awarded MAECO $10,000 of the $16,854.50 requested attorney's fees.
ISSUES
Totem raises two arguments on appeal:
(1) That the liquidated damage clause was enforceable regardless of whether any evidence of actual loss was provided; and
(2) That Totem offered some evidence of actual loss.
LIQUIDATED DAMAGE CLAUSE
We hold that a contract's liquidated damage clause is enforceable despite no showing of an amount of actual damage. We do so based on general contract principles and law interpreting liquidated damage clauses specifically.
First, it is a general principle of contract law that when parties bind themselves by a *193 lawful contract, a court must give effect to that contract as written if the terms are clear and unambiguous. Estes Co. v. Aztec Const., Inc., 139 Ariz. 166, 168, 677 P.2d 939, 941 (App. 1983). Paragraph 19 imposes no specific requirement that Totem show actual damages. On the other hand, MAECO argues that the clause does not say that no damages whatsoever need be shown.
Even though those specific words are not included, we cannot impose such a requirement on Totem. To require Totem to show an amount of actual damages would be to require Totem to do precisely what the parties agreed Totem need not do. Imposing such a requirement would not give effect to the contract's clear and unambiguous terms.
Second, we hold that the liquidated damage clause is reasonable even though it contains no requirement that the party enforcing the clause show actual damages.
When a court concludes that a liquidated damage clause is a penalty, it will refuse to enforce the clause as void and against public policy. Instead, it will limit recovery to the actual loss. However, when a court concludes that the clause is for liquidated damages, it will enforce the clause.
This distinction was developed by the courts of equity, which refused to enforce penal bonds. In order to coerce performance, a penal bond required the promisor to pay a stipulated amount upon breach. Later courts concluded that when actual loss could not be easily calculated, a liquidated damage clause was a valid alternative. See generally Comment, Liquidated Damages: A Comparison of the Common Law and the Uniform Commercial Code, 45 Fordham L.Rev. 1349, 1349-50 (1977). A liquidated damage clause serves a useful purpose when it would be difficult to prove the amount of loss with the degree of certainty required by law. 5 Corbin on Contracts § 1062 at 357-58, 361. A liquidated damage clause promotes enterprise by increasing certainty and by decreasing risk-exposure, proof problems, and litigation costs. See D. Dobbs, Law of Remedies § 12.5 at 823 (1973).
If a liquidated damage clause meets the following two conditions, Arizona courts will conclude that the clause is not a penalty and will enforce it:
(1) The liquidated amount must be a reasonable forecast of just compensation for the harm caused by a breach; and
(2) The harm caused by a breach must be one that is incapable or very difficult to accurately estimate.
Larson-Hegstrom & Associates, Inc. v. Jeffries, 145 Ariz. 329, 333, 701 P.2d 587, 591 (App. 1985) (citing Restatement (Second) of Contracts § 356 and Restatement of Contracts § 339). Arizona courts have not analyzed whether a liquidated damage clause is reasonable when there is no proof of an actual loss.
As explained in illustration 7 to § 339(1) of the first Restatement, evidence that a delay caused no loss is immaterial to whether a stipulated damage clause is enforceable:
A offers to manufacture and deliver to the B Government specified guns at $5000 each if delivered by May 1, or at $4000 each if delivered 100 days later. B accepts the first offer at the higher price; but it is mutually agreed that in case of delay beyond May 1 the price to be paid shall be reduced by $10 for each day's delay. If the guns are not delivered until 30 days after May 1, B is bound to pay no more than $4700, since that sum is the agreed price. Evidence offered by A that the war is over and that the delay has caused no harm is wholly immaterial....
EVIDENCE OF ACTUAL DAMAGE
Totem argues that it did offer some evidence of loss caused by MAECO'S delay. This evidence was a reasonable forecast of just compensation for the harm caused by a breach. It is proof that there would be some damage from a breach without the burden of proof of an actual amount. Avoidance of this second burden is the benefit of a liquidated damage clause. Totem cites the affidavit of Thomas Nardini, president of Totem, who stated that it was *194 not possible to determine the amount of damages Totem would suffer:
Separate paragraph # 19 [, which included the stipulated damage clause,] was included in the subcontract agreements as, at the time of the execution of the subcontract, it was not possible to determine precisely the loss and damage Totem would suffer if the subcontractor failed to perform timely. The sum of $350.00 per day was included not as a penalty but as a reasonable estimate of actual loss or damage which Totem would suffer based upon estimated costs of keeping supervisory personnel on the job in the field and having to continue to administer the job contracts which, in Totem's experience, costs approximately $9,000.00 10,000.00 per month or $350.00 per day.
However, in opposing MAECO's motion for partial summary judgment, Totem argued that it was immaterial that Totem was not assessed liquidated damages under its general contract. During the hearing, the trial court told Totem's attorney that he had to offer evidence that Totem suffered some loss. Totem's attorney responded that enforcement of the stipulated damage clause did not require him to show any evidence of actual loss:
THE COURT: Before you can invoke the liquidated damages clause, you have got to show damages.
MR. RUBIN: I wish to point out that the contract has two liquidated damages provisions. One is Paragraph 13, I believe and 14. That covers a situation where Totem might have suffered actual damages paragraph 13 as liquidated damages or otherwise, because of delay.[1] We are not invoking that provision. We are not claiming that we were assessed liquidated damages by the owner.
Nineteen [, which included the stipulated damage clause,] however, does not presuppose actual damages. Paragraph Nineteen is a separate paragraph and covers specifically the situation here. Whether or not we suffer damages is not a prerequisite to enforcing the liquidated damages provision.
Totem offered further evidence that it claimed liquidated damages for delay in the form of a letter from Totem to MAECO dated March 8, 1984 and a telephone memorandum dated February 16, 1984 indicating Totem was invoking paragraph 19 of the contract.
We agree with Totem. The stipulated damage clause is enforceable. Totem showed sufficient evidence below to indicate that the clause was not imposed as a penalty but as payment for MAECO's delays. We do not believe that Totem was required, in addition to the reasonable forecast evidence referred to above, to show proof of actual damages resulting from MAECO's breach.
We reverse the grant of partial summary judgment in favor of MAECO and remand this case for further proceedings consistent with this opinion.
We grant Totem's request for attorney's fees in an amount to be determined upon its compliance with Rule 21(c), Rules of Civil Appellate Procedure.
CORCORAN and GREER, JJ., concur.
NOTE: The Honorable ROBERT J. CORCORAN, Justice of the Arizona Supreme Court, has been authorized by Administrative Order No. 89-3 of the Chief Justice, to participate in the resolution of this case which was previously assigned to him as a judge of this Court or to his department before Thursday, January 5, 1989.
NOTES
[1] In paragraph 13 of the subcontracts, the parties agreed that if the amount due Totem under its general contract were reduced because of MAECO's default, then MAECO would reimburse Totem.
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627 F.2d 984
8 O.S.H. Cas.(BNA) 2055, 1980 O.S.H.D. (CCH) P 24,790In the Matter of Establishment Inspection of STODDARD LUMBERCOMPANY, INC., 1/4 Mile South of City ofYellowstone Highway, St. Anthony, Idaho,Petitioner- Appellant,v.Ray MARSHALL, Secretary of Labor, U.S. Department of Labor,Respondent- Appellee.
No. 79-4143.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted July 2, 1980.Decided Sept. 15, 1980.
John L. Runft, Runft & Longeteig, Chartered, Boise, Idaho, on brief, for petitioner-appellant.
Charles Hadden, Carin A. Clauss, Benjamin W. Mintz, Allen H. Feldman and Thomas L. Holzman, Washington, D.C., on brief, for respondent-appellee.
Appeal from the United States District Court for the District of Idaho.
Before SNEED and NELSON, Circuit Judges, and GRAY*, District Judge.
SNEED, Circuit Judge:
1
Appellant, Stoddard Lumber Company, appeals from an order of the district court holding the company in contempt of court for refusing, on November 29, 1978, to honor an Occupational Safety and Health Administration (OSHA) inspection warrant that was obtained ex parte on November 21, 1978. Stoddard challenges the district court's order on three grounds: (1) the district court erred in finding that the Secretary of Labor's inspection selection method was exempt from the notice and comment rulemaking procedures of the Administrative Procedure Act (APA) under 5 U.S.C. § 553; (2) the district court erred in finding that Stoddard fit within the standards outlined in the Secretary's inspection selection plan; and (3) the Secretary lacked the authority to apply ex parte for inspection warrants under 29 C.F.R. § 1903.4. We find no merit in appellant's challenges and affirm the contempt order.
2
Our jurisdiction rests on 28 U.S.C. §§ 1291 and 1294(1).
I.
FACTUAL BACKGROUND
3
Stoddard Lumber Company is an Idaho corporation engaged in the business of producing lumber and other wood products for shipment to points both inside and outside the State of Idaho, and is thereby subject to the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., (hereinafter referred to as "the Act").1 Since July 1, 1974, OSHA's Boise Area Office has utilized a detailed procedure for identifying and selecting particular work establishments for inspection pursuant to section 8(a) of the Act. Under OSHA's General Schedule Inspection Selection Process, OSHA inspections are divided into two categories: (1) unscheduled inspections, which are conducted in response to the receipt of information of hazardous working conditions at a particular establishment; and (2) general schedule inspections, which are scheduled on the basis of objective selection criteria.2
4
Utilizing this inspection selection procedure, Richard Jackson, OSHA Area Director for the State of Idaho, selected Stoddard for a general schedule inspection, and assigned an OSHA compliance and safety officer to conduct it. However, on September 26, 1978, when compliance officer Garney Coffey attempted to inspect the Stoddard workplace, the company refused him entry. Thereupon, the Secretary of Labor filed an application for an ex parte inspection warrant in the United States District Court for the District of Idaho. Based on the Secretary's warrant application and accompanying documents, the district court found sufficient probable cause to issue a warrant authorizing a full inspection of the Stoddard premises.
5
On November 29, 1978, an OSHA compliance officer returned to the Stoddard workplace and attempted to execute the warrant, but the company, after consulting with its attorney, again refused to permit the inspection. The Secretary then applied to the district court for an order holding Stoddard in contempt. The district court issued an order directing Stoddard to show cause why it should not be held in contempt. After a hearing held on the show cause order, the court entered an order holding the company in contempt for its refusal to honor the OSHA inspection warrant. The court fined Stoddard $500 plus an additional $100 for each succeeding refusal to permit an inspection.3
6
Stoddard contends that the warrant was invalid because it was issued pursuant to an OSHA regulation which was not promulgated in accordance with the APA notice and comment rulemaking procedures under 5 U.S.C. § 553. Alternatively, appellant argues that the warrant was invalid because it lacked an adequate showing of probable cause, and because it had been obtained ex parte.
II.
RULEMAKING PROCEDURES UNDER THE APA
7
The Act evidences a strong congressional policy that every worker in the United States should be afforded a safe working environment. 29 U.S.C. § 651(b). To that end, the Secretary of Labor is invested with limited authority to enter and inspect workplaces for occupational hazard "during regular working hours and at reasonable times . . . within reasonable limits and in a reasonable manner . . . ." 29 U.S.C. § 657(a)(2). The Secretary is also given authority to "prescribe such rules and regulations as he may deem necessary to carry out (his) responsibilities under this chapter, including rules and regulations dealing with the inspection of an employer's establishment." 29 U.S.C. § 657(g)(2).
8
Stoddard contends that the Secretary's General Schedule Inspection Selection Process is per se unreasonable because it is a "rule"4 that has not been promulgated in accordance with the formal rulemaking procedures of 5 U.S.C. § 553. Section 553 requires publication of an agency's rules in the Federal Register at least thirty days before its effective date, and that persons subject to an agency's rules be given notice of and an opportunity to comment on proposed rules. However, by its own terms, the notice and comment requirements of 5 U.S.C. § 553 do not apply "to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . . ." 5 U.S.C. § 553(b)(3)(A).
9
Distinguishing between those types of rules which to be valid must be promulgated pursuant to the procedures of section 553 and others whose validity does not rest on observance of that section's notice and comment procedures has proved to be quite difficult. A few quite simple and universally accepted propositions can be stated, however. Legislative rules must be promulgated pursuant to section 553. Interpretative rules and other types of declarations described in section 553(b)(3)(A) frequently, but not invariably, need not be. The fundamental distinction between legislative rules and interpretative rules has been described by Professor Davis in the following manner:
10
"A legislative rule is the product of an exercise of delegated legislative power to make law through rules. An interpretative rule is any rule an agency issues without exercising delegated legislative power to make law through rules."
11
2 K. C. Davis, Administrative Law Treatise, § 7:8 (2d ed. 1979) (hereinafter cited as Davis ). Valid and properly promulgated legislative rules have the force of law; interpretative rules are subject to having their content rejected by a court. Even though an agency has the power to promulgate legislative rules, as the Secretary does in this case, it might choose not to issue rules pursuant to that authority. In such instances the rules are interpretative, not legislative. Id.
12
The preciseness of these propositions is greatly reduced by the fact that many courts have held that rules, even though intended by the agency to be interpretative, which have a "substantial impact" must nonetheless comply with the notice and comment procedure. See National Motor Freight Traffic Ass'n v. United States, 268 F.Supp. 90 (D.D.C. 1967), aff'd 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968); Pharmaceutical Manufacturers Ass'n v. Finch, 307 F.Supp. 858 (D.Del. 1970); Davis, § 7:17. The presence of "substantial impact" is indicated, it has been said, by "the amount of confusion and controversy generated and the need for expertise in resolving the issue, in addition to its financial impact on affected parties." See Warren, The Notice Requirement In Administrative Rulemaking: An Analysis Of Legislative And Interpretive Rules, 29 Adm.L.Rev. 367, 389 (1977). Courts applying the "substantial impact" analysis sometimes ignore the APA distinction between legislative and interpretative rules and simply distinguish between rules having a "substantial impact" which are subject to the notice and comment procedure and those not having such an impact which are not subject to such procedure. Professor Davis, while taking care to point out the juridical difference between legislative rules and interpretative rules, expresses approval of the exercise by the courts in appropriate cases of the power to require notice and comment procedures even though not specifically required to do so by the APA. Davis, § 7:18. In his view the Supreme Court's recent adjuration to avoid imposing procedural requirements beyond those of section 553, set forth in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978), should not terminate this practice. Davis, § 7:19.
13
Be that as it may, we have no difficulty in holding that neither the General Schedule Inspection Selection Process, nor OSHA Instruction CPL 2.25, nor the 1979 OSHA Field Operations Manual and Industrial Hygiene Field Operations Manual, Chap. IV, each of which is referred to by appellant in his brief, is subject to notice and comment procedure. None was promulgated as a legislative rule by the Secretary. Also none has a sufficiently "substantial impact" to justify such procedure. The program by which the choice of installations to inspect is made remains subject to control by the courts exercising their responsibilities under the criteria of the Fourth Amendment as explicated in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Although the ability of courts to substitute their judgment for that of an administrator will not in all instances excuse noncompliance with notice and comment procedure, in this case the experience of courts in determining the reasonableness of searches pursuant to warrants constitutes a source of expertise very likely not inferior to that of the Secretary. The absence of notice and comment procedures under these circumstances very likely will not prejudice owners. Our conclusion remains the same without regard to whether the Secretary's pronouncements be regarded as interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.
III.
14
APPLICATION OF THE STANDARDS TO STODDARD'S BUSINESS
15
In Marshall v. Barlow's, Inc., supra, the Supreme Court held section 8(a) of the Act unconstitutional insofar as it authorized nonconsensual warrantless inspections of an employer's establishment. The Supreme Court stated quite clearly that to obtain a warrant the Secretary is not required to show probable cause in the criminal law sense. Instead, the Court held that:
16
(f)or purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular (establishment).'
17
435 U.S. at 320, 98 S.Ct. at 1824 (citing Camara v. Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967)).
18
Stoddard asserts that no probable cause was established since the Secretary made no showing to the magistrate that the selection program applied to Stoddard's lumber business. Specifically, according to Stoddard, the Secretary was required to provide statistics on the company's accident and illness rate, as well as show the company's position on the worst-first list in order to satisfy the probable cause standard under Barlow's.
19
We find that such a showing is not required. See Marshall v. Chromalloy American Corp., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979). In Chromalloy, the Seventh Circuit found that a warrant application stating that there was a high incidence of injuries in the foundry industry had stated a basis for the magistrate's finding of probable cause. The court noted that to require individual statistics every time the Secretary wants a warrant would result in a full-blown hearing and "would be imposing on the Secretary an unwarranted 'consumption of enforcement energies' which would 'exceed manageable proportions. . . . Such a situation was not intended by the Supreme Court in its decision in Barlow's." 589 F.2d at 1342. (Citations omitted.)
20
In his application for a warrant, the Secretary provided the district court with the following information: (1) a detailed explanation of the selection plan; (2) the OSHA area director's sworn affidavit stating that Stoddard was selected pursuant to that plan without influence of any other factors; and (3) that the injury incident rate in the lumber industry was 1.8 times the national injury rate for 1976, the most recent year for which statistics were available. Given this information, it was clear that Stoddard fit within the selection program. Contrary to appellant's contention, the Secretary's failure to provide individual statistics of Stoddard's business does not make the warrant fatally defective. There was sufficient evidence presented to support the district court's finding of probable cause for the issuance of the administrative search warrant.
IV.
21
AUTHORITY OF THE SECRETARY TO OBTAIN EX PARTE WARRANTS
22
Stoddard argues that 29 C.F.R. § 1903.4, both as originally promulgated and as amended, does not authorize the Secretary to apply for OSHA inspection warrants ex parte. Stoddard asserts that the Barlow's decision indicated that upon being refused permission to inspect, the Secretary is limited to seeking compulsory judicial process for inspections in which the owner of the installation is given notice to appear and show cause why inspection should not be permitted. Appellant relies principally upon the decision and reasoning of the court in Cerro Metal Products v. Marshall, 620 F.2d 964 (3d Cir. 1980). The Third Circuit, in affirming the district court's granting of a preliminary injunction prohibiting OSHA from obtaining ex parte warrants to inspect the employer's workplace, placed great weight, as had the district court, upon the Supreme Court's dictum in Barlow's that "the kind of process . . . apparently anticipated by . . . regulation (§ 1903.4) provides notice to the business operator." 436 U.S. at 318, 98 S.Ct. at 1823. Although recognizing that it was not bound by this dictum, the majority nonetheless adopted it as integral to the constitutional holding in Barlow's and concluded that section 1903.4 as originally promulgated "did not empower OSHA to seek ex parte warrants." Cerro Metal Products v. Marshall, supra at 979.
23
To evaluate properly the Third Circuit's position, it is necessary initially to make clear three propositions. The first is obvious. The Fourth Amendment does not preclude ex parte warrants. The second is that nothing in the Act requires notice to the employer before acquiring a warrant. Finally, the existing regulation, section 1903.4, as amended on December 22, 1978, contemplates the availability of ex parte warrants.
24
The circumstances upon which the Third Circuit relied arose from the Secretary's efforts in Barlow's to avoid the Fourth Amendment's warrant requirements. In that effort the Secretary took the position that a warrant was unnecessary because those who refused to permit inspection upon request were entitled to notice of compulsory process initiated by the Secretary. Participation in that process, the Secretary suggested, afforded sufficient protection to the employer, and its availability coupled with the absence of a warrant requirement would discourage employer resistance to inspections and facilitate administration of the Act. See Cerro Metal Products v. Marshall, supra at 976 n.32. The 1976 version of the Field Operations Manual was not inconsistent with this position. In that version the phrase "compulsory process" was substituted for the word "warrant," which appeared in the earlier 1972 version, and the following paragraph, which also appeared in the 1972 version, was eliminated:
25
f. In cases where a refusal of entry is to be expected from the past performance of the employer, or where the employer has given some indication prior to the commencement of the investigation of his intention to bar entry or limit or interfere with the investigation, a warrant should be obtained before the inspection is attempted. Cases of this nature should also be referred through the Area Director to the appropriate Regional Solicitor and the Regional Administrator alerted.
26
As a result the Third Circuit concluded that neither the regulations nor the Secretary's practices thereunder recognized ex parte warrants and that any change of those regulations required a notice and comment rule making. It added elegance to its holding by invoking Shakespeare's line from Hamlet that the agency was "hoist with (its) own petar." Cerro Metal Products v. Marshall, supra at 967. The issue in this case is whether there was a "petar" with which to be "hoist." We think not.
27
It is indeed true that the Secretary perhaps unwisely altered its manual to reflect his belief that the Fourth Amendment imposed no warrant requirement with respect to nonconsensual inspections. "Compulsory process," a conveniently ambiguous term, was introduced to indicate primarily that coercion would be applied to those who resisted inspection. We cannot agree, however, that the term must be construed as a forswearing by the Secretary of any intention or power to resort to the ex parte warrant process. We are persuaded by Chief Judge Seitz's dissenting opinion in Cerro Metal Products, Inc., supra at 984, in which he pointed out that the 1976 Manual retained in its subparagraph (8) the phrase that "(e)xcept in unusual circumstances . . ., there shall be no advance notice to the employer concerning compulsory process or pending inspection." The forerunner of this phrase appeared in the 1972 Manual and read:
28
"Except in unusual circumstances . . ., there shall be no advance warning to the employer of the fact either that a warrant has been secured or that inspection will take place pursuant to the warrant."
29
It is clear, asserted Chief Judge Seitz, that the term "compulsory process" in subparagraph (8) of the 1976 Manual refers to the use of ex parte warrants as did its predecessor in the Manual's 1972 version. We agree.
30
Nor is this reading of the 1976 Manual foreclosed by the Supreme Court's opinion in Barlow's. In broad terms, the Court took the position that the Fourth Amendment's warrant requirement as applied to inspections under the Act was not significantly more burdensome than was the procedure then employed by the Secretary with respect to those who refused to consent to inspections. 436 U.S. at 316-21, 98 S.Ct. at 1822-25. Moreover, the Court recognized that "surprise searches" were authorized by the Act and "contemplated" by the regulations. Id. at 317, 98 S.Ct. at 1823. Such searches obviously would employ the ex parte warrant procedure. Against this interpretation must be placed the Court's footnotes 14 and 15 in which the focus is on a "compulsory process" in which notice is given to the owner who refused to permit inspection of the initiation of that "process." In addition, footnote 15 can be read as assuming that no ex parte warrant procedure was authorized by the regulations. We believe, however, that to hold that these two footnotes amount to a determination by the Supreme Court that the regulations did not authorize ex parte warrants accords them undue weight. In truth the Court never specifically focused its attention on whether ex parte warrants were authorized. It merely addressed the "compulsory process" that the Secretary indicated he was using, and which did not involve the use of a warrant, and concluded that it provided no reason to set aside the Fourth Amendment's warrant requirement. We decline to read more into the opinion because of two footnotes.
31
We conclude by observing that this court has held that OSHA administrative searches pursuant to a warrant are authorized by the statute and the regulations. See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1287 (9th Cir. 1979); see also Marshall v. Burlington Northern, Inc., 595 F.2d 511, 514 (9th Cir. 1979). In Plum Creek, as here, the inspection warrant was obtained before the 1978 amendment to section 1903.4, but the decision was rendered after the amendment. Although we did not discuss the ramifications of the amendment, the court did rely upon Marshall v. W. & W. Steel Co., Inc., 604 F.2d 1322 (10th Cir. 1979). In W. & W. Steel, the Tenth Circuit held that the 1978 amendment to section 1903.4 was an interpretative rule and as such was exempt from the notice and comment rulemaking procedures under 5 U.S.C. § 553. We need not address this issue. Section 1903.4 of 29 C.F.R., both as originally promulgated and as amended, authorizes the Secretary to apply for OSHA inspection warrants ex parte. Our holding with respect to ex parte warrants does not rest upon the 1978 amendment.
32
Affirmed.
*
Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation
1
Stoddard is engaged in business affecting commerce within the meaning of section 3 of the Act, 29 U.S.C. §§ 651 et seq., since it ships some of its products interstate
2
Based upon data regarding accidents and illnesses, industries within Idaho are ranked in descending order on the basis of accidents and illnesses per employee. Industries with an accident/illness rate exceeding the national rate of 9.2 accidents or illnesses per 200,000 man-hours worked are classified as "high hazard" industries. At all relevant times, 32 industries in Idaho were listed as "high hazard." Within each "high hazard" industry, individual work establishments are ranked in descending order on the basis of injury/illness rates. The number of general schedule inspections that reasonably can be anticipated to be performed in a given year is estimated, and that number of individual work establishments is selected with a uniform percentage of establishments being taken from the top of each "high hazard" industry
The "high hazard" individual work establishments are grouped on a geographical basis. Idaho is divided into four districts. Within each district, the individual work establishments are grouped by county location. Each county receives approximately the same proportion of total inspections as the county's proportion of the total working population of Idaho. Finally, within a selected county the largest employer on each of the high hazard lists is chosen. Thus, the largest employer on the highest hazard industry in the county is selected first, followed by the largest employer of the second highest hazard industry in the county and so on until the number of anticipated inspections is completed. See General Schedule Inspection Selection Process, C.R. 6.
3
The company was advised by the order that the fine would be set aside if it notified the court the inspection would be permitted by February 14, 1979, and would in any case be suspended if the company advised the court by that date that it was proceeding with an appeal
4
The APA defines a "rule" as follows:
(4) "rule" means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing. . . . 5 U.S.C. § 551(4).
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472 Pa. 36 (1976)
371 A.2d 178
PENNSYLVANIA LIQUOR CONTROL BOARD, Commonwealth of Pennsylvania and Pennsylvania Liquor Control Board, Commonwealth of Pennsylvania to use of Holt Hauling and Warehousing Systems, Inc., Appellants,
v.
RAPISTAN, INCORPORATED, Principal, and Federal Insurance Company, Surety.
Supreme Court of Pennsylvania.
Argued January 14, 1975.
Decided October 8, 1976.
Rehearing Denied November 5, 1976.
*37 *38 *39 Robert H. Malis, Malis, Tolson & Malis, Philadelphia, for appellants.
Gordon W. Gerber, Dechert, Price & Rhoads, Philadelphia, for appellees.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
*40 OPINION OF THE COURT
ROBERTS, Justice.
This appeal arises from a contractual dispute between the Pennsylvania Liquor Control Board ("PLCB") and Rapistan, Inc. ("Rapistan"). The PLCB filed a complaint in the Commonwealth Court against Rapistan and Rapistan's surety, Federal Insurance Company ("Federal") alleging breach of contract. Rapistan and Federal filed preliminary objections. The Commonwealth Court sustained the preliminary objections and dismissed the complaint.[1] The PLCB appealed.[2] We reverse.
In 1970, the PLCB contracted with Rapistan for the construction and installation by Rapistan of an $875,300 conveyor system in the PLCB's Philadelphia warehouse. The contract provided that the conveyor system would be capable of handling 25,000 cases of alcoholic beverages in an eight hour period. Federal executed a $875,300 bond conditioned upon Rapistan's performance. Subsequently, the PLCB contracted with Holt Hauling and Warehousing Systems, Inc. ("Holt") for the operation of the warehouse. Holt allegedly relied on the conveyor system specifications in the Rapistan-PLCB contract in computing its offer to the PLCB.
In October 1970, Holt began operation of the conveyor system. A dispute arose soon thereafter because the system was unable to handle 25,000 cases per eight hour period. The PLCB refused to make payment of the final $95,000 due to Rapistan under their contract. It also entered into two agreements modifying its original contract with Holt. The PLCB agreed to reimburse Holt for additional costs incurred due to the faulty equipment and to increase the contract rates for handling the cases. *41 Holt agreed to withdraw a claim it had filed against the PLCB before the Board of Arbitration of Claims. However, the parties stated that the modifications "shall not be deemed to constitute full satisfaction of [Holt's] claims on account of [the conveyor system] which may be asserted hereafter by [Holt] against Rapistan." The parties agreed to file joint or separate actions against Rapistan to determine Rapistan's liability and agreed upon a formula to divide any award.[3]
On June 8, 1973, the PLCB filed this action on its own behalf and "to use of" Holt in the Commonwealth Court. The complaint sought damages for breach of contract on six counts: (1) costs for modifications to make the conveyor system capable of meeting the contract standards ($404,684.84); (2) recovery of money paid by the PLCB to Holt in the modification agreement ($1,405,764.59); (3) damages for breakage of the PLCB's product allegedly caused by defects in the conveyor system ($282,892.93); (4) the sum of the damages set forth in counts one, two and three ($2,093,342.36); (5) recovery from Federal of the face amount of the performance bond ($875,300); and (6) recovery of Holt's damages over and above the amount paid to Holt by the PLCB ($5,117,832.00).
*42 Rapistan and Federal raised preliminary objections to the PLCB's complaint, which included: (1) a demurrer to counts two and six because they concern transactions between the PLCB and Holt and create no rights, obligations or causes of action for or against Rapistan; and (2) an objection to the jurisdiction of the Commonwealth Court because the contract provides for arbitration of all disputes.[4] The Commonwealth Court sustained these objections and dismissed the PLCB's complaint.
Dismissal of Counts Two and Six
The Commonwealth Court dismissed counts two and six because it found that Holt was not a third party-creditor beneficiary of the contract between the PLCB and Rapistan and that the PLCB therefore could not sue on Holt's behalf.
To determine whether this preliminary objection was properly sustained, we must consider as true all "well-pleaded" material facts set forth in the PLCB's complaint and all reasonable inferences that may be drawn from those facts. Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971). Applying this test, it is clear the Commonwealth Court erred in dismissing count two.
*43 The PLCB, in its complaint, asserts that its liability to Holt was caused by Rapistan's breach of contract. The facts alleged support this claim. The conveyor system, according to the complaint, does not meet contract specifications, and, as a result, the cost of handling the cases is more than originally contemplated and the number of warehouse employees needed is greater. The PLCB was therefore forced to renegotiate its contract with Holt at considerable expense. The PLCB's losses are directly attributable to the breach of contract by Rapistan. It is therefore entitled to recover from Rapistan so long as the damages were "reasonably foreseeable" at the time of contracting and can be proved with reasonable certainty. Macchia v. Megow, 355 Pa. 565, 50 A.2d 314 (1947); 5 Corbin on Contracts § 1007 (1964).
Count six was properly dismissed, however. The PLCB has settled its liability with Holt, and Holt cannot now sue the PLCB for any additional damages. Thus, the PLCB's liability to Holt caused by Rapistan's breach is limited to the sum in count two. Because the PLCB has no further liability to Holt, it has no cause of action of its own for the amount stated in count six.
The PLCB argues that, although it is not the real party in interest in count six, it can assert its claim "to the use of Holt" because Holt is a third party beneficiary of the Rapistan-PLCB contract. Pennsylvania Rule of Civil Procedure 2002 provides in pertinent part:
"(a) Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest. . ..
"(b) A plaintiff may sue in his own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff . . .
(2) is a person with whom or in whose name a contract has been made for the benefit of another."
*44 In Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 56-57, 70 A.2d 828, 830-31 (1950), this Court stated:
"To be a third party beneficiary entitled to recover on a contract it is not enough that it be intended by one of the parties to the contract and the third person that the latter should be a beneficiary, but both parties to the contract must so intend and must indicate that intention in the contract; in other words, a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking; the obligation to the third party must be created and must affirmatively appear, in the contract itself. . .." (Emphasis in original.)
Accord, Van Cor, Inc. v. American Casualty Co. of Reading, 417 Pa. 408, 208 A.2d 267 (1965); Farmers National Bank of Ephrata v. Employers Liability Assurance Corp., Ltd., 414 Pa. 91, 199 A.2d 272 (1964); Silverman v. Food Fair Stores, Inc., 407 Pa. 507, 180 A.2d 894 (1962); Hilbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Super. 565, 352 A.2d 148 (1975). The Commonwealth Court, applying this standard, held that Holt was not a creditor beneficiary of the Rapistan-PLCB contract.
There has been some criticism recently concerning the requirement that the intent to benefit a third party be expressed in the contract itself. See, e.g., Hillbrook Apartments, Inc. v. Nyce Crete Co., supra at 577, 352 A. 2d at 154 (dissenting opinion of Cercone, J., joined by Jacobs, J.).[5] Indeed, statements in many cases appear *45 to indicate that the intent of the parties to benefit another should be determined from the circumstances surrounding the contract as well as from the contract itself. See, e.g., Silverman v. Food Fair Stores, Inc., 407 Pa. at 509-10, 180 A.2d at 895 ("`The question whether a contract was intended for the benefit of a third person is one of construction. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of circumstances under which it was made.'"); Mowrer v. Porrier v. McLane Corp., 382 Pa. 2, 114 A.2d 88 (1955); Hillbrook Apartments, Inc. v. Nyce Crete Co., supra.
The PLCB argues that this Court should adopt the standard for intended beneficiary status set forth in section 133 of the Restatement (Second) of Contracts (Rev. ed. Tentative Drafts 1-7, 1973), which abolishes the distinction between creditor and donee beneficiaries. See also Hillbrook Apartments, Inc. v. Nyce Crete Co., supra at 580, 352 A.2d at 155 (dissenting opinion of Cercone, J., joined by Jacobs, J.). It provides:
"(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and
........
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance."
Under this Restatement provision, a third party is an intended beneficiary only if he can reasonably rely on the contract as manifesting an intent to confer a right on him. Restatement (Second) of Contracts § 133 (comment d) (Rev. ed. Tentative Drafts 1-7, 1973). Thus, *46 although there is no requirement that the intent to create an intended beneficiary be expressed in the contract, there must still be evidence, sufficient to permit reasonable reliance, that the promisee and promisor intended to confer a right on a third party.
Here, even accepting the PLCB's position, it must allege facts to show that Holt could reasonably assume that the PLCB and Rapistan intended to confer a right on Holt to Rapistan's performance. The PLCB-Rapistan contract makes no mention of any third party beneficiary, and the PLCB has only alleged that Rapistan was aware that a third party would operate the equipment. This by itself is insufficient. Nowhere in the contract or the complaint is it shown or alleged that the PLCB intended to use Rapistan's promise to build the conveyor system to discharge a contractual duty to a third party. There is no indication that neither the PLCB or Rapistan intended a right to flow from their contract directly to a third party. In these circumstances, Holt could not reasonably assume that the parties intended to confer on it a right to Rapistan's performance. Thus, Holt is not an intended beneficiary and count six was properly dismissed.
Dismissal of Counts One, Three and Four
The Commonwealth Court held that it did not have jurisdiction to resolve disputes between Rapistan and the PLCB arising under their contract because the parties had agreed to submit all such disputes to arbitration. The court relied on the following clause in the contract:
"ARBITRATION All questions or disputes arising between the parties hereto with respect to any matter pertaining to this contract or any part thereto, or any breach of said contract arising thereunder, shall be referred to the Attorney General of the Commonwealth of Pennsylvania under Section 2408, of the Administrative Code of 1929, or the Board of Arbitration of *47 Claims (as set forth in Act of May 20, 1937, P.L. 728) whichever the claimant shall elect, whose decision and award shall be final and binding and conclusive upon all parties hereto, except that either party shall have the right to appeal from said decision and award as provided by law; and all right or rights or any action at law or in equity and by virtue of this contract, and all matters connected with it and relative thereto are hereby expressly waived. References to questions under this arbitration provision must be presented prior to the final payment to the Contractor or Contractors."
The PLCB argues that it is not a "claimant" as defined in the agreement and that, therefore, it is not required to arbitrate its claims against Rapistan. We agree.
Under the terms of the arbitration clause, the claimant has the option to refer any contractual dispute either to the Attorney General or the Board of Arbitration of Claims ("board of arbitration"). The decision of the arbitrator so chosen is final and binding. If the PLCB was intended to be a claimant, this would give it the option to bring its claim before the Attorney General for final decision. However, the Attorney General is the very person who initiates the suit against the contracting party on behalf of the PLCB. A contracting party with the PLCB could hardly have intended to allow the PLCB to decide the merits of the PLCB's own claim.
The Commonwealth Court agreed that the PLCB could not submit its claims against Rapistan to the Attorney General. However, it concluded that, pursuant to the arbitration clause, the PLCB must bring all its claims before the board of arbitration.
This conclusion ignores the statutory authority of the board of arbitration. The Act of May 20, 1937, P.L. 728, § 1, as amended, 72 P.S. § 4651-1 (1968), provides in pertinent part:
"There is hereby created a departmental administrative board in the Department of the Auditor General, *48 known as the Board of Arbitration of Claims, the duty of which shall be to arbitrate claims against the Commonwealth arising from contracts entered into by the Commonwealth."
Section 4, the jurisdictional provision of the act, provides:
"The Board of Arbitration shall have jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more."
Id. § 4, 72 P.S. § 4651-4.
As these provisions clearly state, the statutory authority of the board of arbitration is limited to claims against the Commonwealth. See Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 430, 336 A.2d 609, 615 (1975). The parties cannot, by consent, confer jurisdiction on the board of arbitration absent the necessary statutory authorization. Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., supra; Adam Eidermiller, Inc. v. The State Highway & Bridge Authority, 408 Pa. 195, 201, 182 A.2d 911, 914 (1962). As this Court stated in Pennsylvania Turnpike Commission:
"A contract between the Commonwealth and another may provide for arbitration under the [Arbitration] Act of 1937. . . . Under that Act the Board of Arbitration of Claims has jurisdiction only over claims against the Commonwealth. . . ." (Emphasis in original.)
461 Pa. at 431, 336 A.2d at 615.
Because the PLCB is not permitted to submit any claim against Rapistan to either the Attorney General or the board of arbitration, the term "claimant" as used in the arbitration clause can only refer to a party seeking recovery against the Commonwealth, here, Rapistan. *49 The Commonwealth Court therefore erred in holding that the arbitration provision divested its jurisdiction over counts one, three and four, the claims by the PLCB against Rapistan.
Rapistan argues that the Commonwealth Court does not have jurisdiction over the PLCB's complaint because Rapistan filed a claim before the board of arbitration against the PLCB for the final $95,000 payment prior to the PLCB's suit. Rapistan urges that, because public policy favors arbitration, the board of arbitration should now have exclusive jurisdiction over all counterclaims arising from the contract. Under such an interpretation, the Commonwealth Court's jurisdiction would be dependent upon which party filed its claim first. We do not agree.
The Commonwealth Court and the board of arbitration were designed by the Legislature to hear entirely different types of claims. The Appellate Court Jurisdiction Act of 1970 specifically provides that the Commonwealth Court "shall have original jurisdiction of. . . all civil actions or proceedings by the Commonwealth. . . except proceedings under the Eminent Domain Code. . . ."[6] The board of arbitration's jurisdiction is limited to claims against the Commonwealth. One provision of the Arbitration Act indicates that the board of arbitration may hear counterclaims if they are brought before it.[7] However, there is absolutely no indication that the Legislature intended by that provision to divest the Commonwealth Court of original jurisdiction over "all civil actions . . . by the Commonwealth" *50 if the party opposing the Commonwealth proceeds first in the board of arbitration.
The Commonwealth cannot be compelled to bring its claim before its own board of arbitration, especially when, as here, that claim is far larger than the opposing party's claim. The Commonwealth Court was established to hear such claims. Its jurisdiction may not be divested merely because the claimant seeking recovery against the Commonwealth acted first in instituting proceedings before the board of arbitration.
Finally, Rapistan argues that the Commonwealth Court does not have jurisdiction because the PLCB's complaint is not brought by either the Commonwealth or one of its officers acting within his official capacity. We disagree.
Section 102(a) of the Appellate Court Jurisdiction Act defines "Commonwealth" to include "independent boards."[8] Section 201 of the Liquor Code states that the PLCB is an "independent administrative board."[9] Therefore, the PLCB may proceed before the Commonwealth Court, which has original jurisdiction over all suits brought by the Commonwealth.[10] See Befwick of Philadelphia, Inc. v. Cobblestones, Inc. and Pennsylvania Liquor Control Board, 466 Pa. 488, 353 A.2d 459 (1976).
*51 Dismissal of Count Five
Count five of the PLCB's complaint demands judgment against Federal, Rapistan's surety, to the amount of Federal's performance bond. The Commonwealth Court dismissed the count because Federal's liability is dependent on the determination of Rapistan's liability. Because the court held that it did not have jurisdiction to hear claims against Rapistan, it concluded that it could not hear the claim against Federal.
Because we hold that the Commonwealth Court does have jurisdiction to determine Rapistan's liability, it follows that it also has jurisdiction over the cause of action against Federal. Therefore, count five was erroneously dismissed.
Order of the Commonwealth Court dismissing the Pennsylvania Liquor Control Board's complaint reversed; case remanded for proceedings consistent with this opinion.
NIX, J., did not participate in the consideration or decision of this case.
MANDERINO, J., filed a dissenting opinion.
MANDERINO, Justice (dissenting).
I dissent. The majority opinion virtually eliminates the counterclaim provisions in the Arbitration Act. That section of the Act provides:
"The board [of arbitration] shall have power to order the interpleader or impleader of other parties whenever necessary for the complete determination of any claim or counterclaim." (Emphasis added.)
Act of May 20, 1937, P.L. 728, No. 193, § 6, as amended, 72 P.S. § 4651-6.
The majority's interpretation of that section is as follows: The board of arbitration may hear counterclaims *52 if the Commonwealth decides to bring them before it. This interpretation construes the language of the counterclaim provision of the Arbitration Act as permissive rather than compulsory. Under the terms of the contract, however, the Commonwealth was bound to litigate any counterclaim before the board of arbitration. The contract, therefore, provided for compulsory counterclaims, rather than permissive counterclaims.
The majority opinion is completely contrary to all of the reasons that have been advanced in support of counterclaim provisions. In the past courts have attempted to force the disposition in one action of all claims which have arisen between the parties to the litigation. This, of course, would eliminate any multiplicity of lawsuits and any possible contradiction of results. The majority, however, ignores these factors and would rather allow the Commonwealth to choose its forum since its counterclaim is larger than the claim presented by Rapistan.
It is most unfortunate that the majority is forced to reach a strained construction of a statute in order to accommodate one of the parties under a contract provision. Since we are dealing with an interpretation of the arbitration clause in the contract it would be much more reasonable to conclude that the Commonwealth is required to litigate the counterclaim against Rapistan before the board of arbitration. Accordingly, I would affirm the order of the Commonwealth Court dismissing the Commonwealth's complaint.
NOTES
[1] 14 Pa.Cmwlth.Ct. 501, 323 A.2d 410 (1974).
[2] See the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 203, 17 P.S. § 211.203 (Supp. 1976).
[3] The modification agreement provides:
"[Holt] shall share equally any recovery by the Board if [Holt] has been denied any recovery whatsoever . . . [Holt] shall share that part of any recovery by the Board to equalize shares if any recovery by [Holt] is less than that of the Board and . . . the parties hereto shall each completely retain any separate recoveries if any recovery by [Holt] is more than that of the Board . . . ."
In its brief, Rapistan argues that this modification agreement demonstrates that the PLCB is acting solely on behalf of a private litigant. It concludes that the Commonwealth Court, which only has original jurisdiction of claims by the Commonwealth, does not have jurisdiction. We disagree. The agreement by the PLCB and Holt to share any recovery from Rapistan is not relevant to the determination of Rapistan's liability to the PLCB. Moreover, the agreement does not divest the PLCB of any recovery; in fact, it retains a substantial interest in the outcome of the suit.
[4] Rapistan and Federal raised four additional preliminary objections: (1) an objection to the Commonwealth Court's jurisdiction because the complaint is not brought by the Commonwealth or an officer thereof acting within his official capacity; (2) an objection to the Commonwealth Court's jurisdiction because Rapistan had already filed a claim before the Board of Arbitration of Claims and the PLCB is therefore required to file its complaint in that forum; (3) a demurrer to count five because it fails to set forth any demand by the PLCB that Federal perform or complete Rapistan's contract, fails to set forth any basis for calculation of damage, and fails to set forth any basis of a claim; and (4) a motion for a more specific pleading in counts one and three. The first and second objections are addressed infra at 184, 185. The third and fourth objections were never reached by the Commonwealth Court because it dismissed the complaint on other grounds. We need not reach these issues because they do not question the jurisdiction of the Commonwealth Court to hear the PLCB's complaint. They may, of course, be raised on remand to that court.
[5] Professor Murray states:
"That a beneficiary may have rights under a contract, although he is not specifically named therein, is clear from the decided cases."
Murray on Contracts § 283 (Rev. ed. 1974).
Professor Corbin states that a third party is a creditor beneficiary if:
"the promisee in a contract contemplates the present or future existence of a duty or liability to a third party and enters into the contract with the expressed intent that the performance contracted for is to satisfy and discharge that duty or liability."
4 Corbin on Contracts § 787 (1951). He does not require that the expressed intent be found in the contract itself.
[6] The Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. IV, § 401(a)(1), 17 P.S. § 211.401(a)(1) (Supp. 1976).
[7] board [of arbitration] shall have power to order the interpleader or impleader of other parties whenever necessary for a complete determination of any claim or counterclaim."
Act of May 20, 1937, P.L. 728, § 6, as amended, 72 P.S. § 4651-6 (1968).
[8] The Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. I, § 102(a)(2), 17 P.S. § 211.102(a)(2) (Supp. 1976).
[9] Liquor Code, Act of April 12, 1951, P.L. 90, 47 P.S. § 2-201 (1969).
[10] The Commonwealth Court agreed that the PLCB could institute an action before it. However, it stated that the suit should be brought by the Commonwealth and not by the individual agency. It described this error as a "technical defect" which can be cured by amendment pursuant to Pennsylvania Rule of Civil Procedure 1033. However, the caption of the complaint reads: "Pennsylvania Liquor Control Board, Commonwealth of Pennsylvania." (Emphasis added.) The complaint is clearly brought in the name of the Commonwealth as required by Pennsylvania Rule of Civil Procedure 2102(a), and no defect appears.
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938 F.2d 188
Wayne Drewesv.Bukowski (Henry)
NO. 90-5296
United States Court of Appeals,Eighth Circuit.
FEB 25, 1991
1
Appeal From: D.Minn.
2
AFFIRMED.
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127 Ariz. 259 (1980)
619 P.2d 1036
Patricia HUNT, Petitioner,
v.
MARICOPA COUNTY EMPLOYEES MERIT SYSTEM COMMISSION; Harold Merkow, Hearing Officer; and Wilson D. Palmer, Clerk of the Maricopa County Superior Court, Respondents.
No. 14573.
Supreme Court of Arizona, In Banc.
November 3, 1980.
Rehearing Denied December 2, 1980.
*260 McKendree & Lubin by Stanley Lubin, John F. Sass, Phoenix, for petitioner.
Charles F. Hyder, Maricopa County Atty. by Sandy Shuch, Deputy County Atty., Phoenix, for respondents.
Stevens & Leibow by Charles T. Stevens, Phoenix, for Arizona State Bar in support of respondents.
Donald D. Meyers, Robert J. Pohlman, Phoenix, for Arizona Uniservice, Inc., in support of petitioner.
Deedra Sparling, Phoenix, for Community Legal Services in support of petitioner.
Stephen D. Neely, Pima County Atty. by Rita Vatter, Tucson, in support of respondents.
HOLOHAN, Vice Chief Justice.
Petitioner, Patricia Hunt, by this special action seeks to require respondents to allow her, pursuant to A.R.S. § 32-261 D, to be represented by a non-attorney in her appeal hearing before the respondent Maricopa County Employees Merit System Commission.
The issue presented is whether the provisions of A.R.S. § 32-261 D constitute an *261 unconstitutional violation of the separation of powers provision of Article III of the Arizona Constitution.
The essential facts are that the petitioner is employed as a legal clerk in the office of the Clerk of the Maricopa County Superior Court. The respondent Clerk notified petitioner that he was taking disciplinary action against her for insubordinate conduct. The respondent Clerk imposed a four-day suspension from work, extension of the probationary period for ninety days, and a period of counseling after her return to work.
A timely appeal from the action taken by her employer was made to the respondent Commission.
There are three merit systems operating within the Maricopa County Government. One of the systems, which includes the Superior Court Clerk's Office, is the Maricopa County Judicial Merit System which was created by a resolution adopted by the Judges of the Superior Court for Maricopa County on June 4, 1975. The Maricopa County Board of Supervisors, on August 6, 1975, accepted the resolution of the Judges and agreed to administer the system as part of the Maricopa County Employees Merit System Commission and the Maricopa County Personnel Department.
Pursuant to the resolution of the Judges and the agreement by the Board of Supervisors, appeals from disciplinary actions by employees within the judiciary would be heard by the Maricopa County Employee Merit System Commission.
The appeal by petitioner from the disciplinary action of the Clerk was accepted by the Commission, and the appeal was assigned for hearing to a hearing officer designated by the Commission. Prior to the hearing date, petitioner advised the Commission that pursuant to A.R.S. § 32-261 D, she wanted to be represented at the hearing by Mr. Tom Donnelly, a person not a lawyer but a representative of the American Federation of State, County and Municipal Employees (petitioner's union). Mr. Donnelly was not charging any fee for his representation of petitioner.
The hearing officer, respondent Harold Merkow, refused to allow Mr. Donnelly to represent petitioner at the hearing because the hearing officer concluded that such representation by a non-lawyer would constitute the unauthorized practice of law. The position of the hearing officer was adopted by the Commission at one of its regular meetings. The hearing was continued by stipulation of the parties to allow petitioner to file her petition for special action.
Petitioner bases her claim of right to be represented by a non-lawyer on the provisions of A.R.S. § 32-261 D. The material parts of the statute provide:
"§ 32-261. Practice of law by active members only; violation; classification; exception
A. Except as provided in subsections C and D, no person shall practice law in this state unless he is an active member of the state bar in good standing as defined in this chapter.
.....
D. An employee may represent himself or designate a representative, not necessarily an attorney, before any board hearing or any quasi-judicial hearing dealing with personnel matters, providing that no fee may be charged for any services rendered in connection with such hearing by any such designated representative not an attorney admitted to practice."
We limit our consideration to subsection D of the statute. We are not called upon to decide the constitutionality of subsection C which purports to permit corporate officers to represent their corporations in justice and police courts. A similar statute has been declared unconstitutional by the California Supreme Court. Merco Construction Engineers, Inc. v. Municipal Court, Etc., 21 Cal.3d 724, 147 Cal. Rptr. 631, 581 P.2d 636 (1978).
At the outset, we have no hesitancy in stating that the practice of law is a matter exclusively within the authority of the Judiciary. The determination of who shall practice law in Arizona and under *262 what condition is a function placed by the state constitution in this court. See In re Miller, 29 Ariz. 582, 244 P. 376 (1926); In re Bailey, 30 Ariz. 407, 248 P. 29 (1926); State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 366 P.2d 1 (1961). This principle is by no means limited to this jurisdiction. In fact, the great weight of authority is in accord with the proposition that the ultimate authority for defining, regulating and controlling the practice of law is vested in the Judiciary. See Merco Construction Engineers, Inc. v. Municipal Court, Etc., supra; Petition of Tennessee Bar Association, 532 S.W.2d 224 (Tenn. 1975); In re Senate Bill No. 630, 164 Mont. 366, 523 P.2d 484 (1974); Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 299 So.2d 289 (1974); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973); Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir.1971); West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S.E.2d 420 (1959); Hoffmeister v. Tod, 349 S.W.2d 5 (Mo. 1961).
We note that petitioner concedes that practice before an administrative agency is the practice of law, for as we said in State Bar of Arizona v. Arizona Land Title & Trust Co., supra, the practice of law includes:
[T]he preparation for another of matters for courts, administrative agencies and other judicial or quasi-judicial bodies and officials as well as the acts of representation of another before such a body or officer." 90 Ariz. at 95, 366 P.2d 1.
This position was reaffirmed in Florez v. City of Glendale, 105 Ariz. 269, 463 P.2d 67 (1969).
Petitioner argues that this court should uphold and enforce the lay representation allowed by A.R.S. § 32-261 D because this court has in the past held that it would accept legislatively enacted rules of procedure which are designed to supplement new substantive rights. State ex rel. Purcell v. Superior Court, 107 Ariz. 224, 485 P.2d 549 (1971); State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969); Matter of Maricopa County, Juvenile Action No. JS-834, 26 Ariz. App. 485, 549 P.2d 580 (1976).
It is petitioner's contention that the establishment of a merit system for county employees created substantive rights which were not in existence before the statute. A.R.S. § 32-261 D was passed by the Legislature subsequent to the enactment of the merit system, but petitioner maintains that the statute was to aid employees in protecting their rights under the merit system. In addition, petitioner argues that under A.R.S. § 12-111 all statutes relating to pleading, practice and procedure become rules of court, effective until modified or suspended by rules promulgated by this court.
In State v. Blazak, supra, this court condemned the practice of procedural legislation because of its potential for infringing on the constitutional authority granted to the Judiciary; nevertheless the court accepted the statutory rules at issue in Blazak as rules of court. In effect, petitioner asks that we follow the same course in the case at issue.
We do not accept the argument of petitioner that the statute in question is merely a procedural rule to supplement the substantive right created by A.R.S. § 11-351 et seq., the County Employee Merit System. The provisions of A.R.S. § 32-261 D are not limited to the county merit system. The provisions of the section apply broadly to "any board hearing or any quasi-judicial hearing dealing with personnel matters."
Petitioner argues that even if the statute may be said to allow laymen to practice law, we should nevertheless accept the legislative enactment in question and authorize persons not admitted to the practice of law to represent individuals in personnel matters.
In support of her position, the petitioner points out that the law has always recognized that a person, no matter how inept, may represent himself in any legal proceedings including a criminal trial for a serious offense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The economics of the situation often give a *263 person no choice but self-representation. As petitioner notes, the amount of financial loss which petitioner will suffer under the employer's disciplinary action is a sum less than $100.00. The employment of an attorney to investigate, try, and argue the matter would far exceed petitioner's loss. This economic fact of life leaves petitioner no alternative but self-representation which she concedes would be unskilled representation indeed.
Petitioner points out that her union representative is skilled in this special field of employer-employee relations. She argues that it is illogical to support the concept that an individual has the right to represent herself, no matter how incompetently, but she may not receive aid from another, more competent than she, but not a licensed professional. See Weckstein, Limitations on the Right to Counsel: The Unauthorized Practice of Law, 1978 Utah L.Rev. 649. Petitioner urges that it is essential to justice and fairness that there be a relaxation of a rule which would deny her totally non-lawyer representation.
Respondents point out that competency in a limited and specialized field is not the sole test to be used by this court. This court's role is to safeguard the public from harm associated with unqualified representation. Competency of representation is important. An attorney must pass an examination before he may represent members of the public. There is no test provided to test the competency of lay representation. In addition, representation by an attorney also involves the protections provided by enforcement of ethical standards established for the benefit of the client, enforced by a disciplinary system under the control of the courts. The client also has the benefit of a statutory privilege which protects the communications between attorney and client. The ethical standards, discipline, training, and controls placed on lawyers is lacking in the case of representation by a layman. It is this concern to safeguard the public, not to aid the legal profession, which must guide the court.
Petitioner answers respondents by pointing out that all the protections provided by a regulated profession are meaningless if a person can't afford such representation. She contends that it would benefit her and other members of the public if they could have some help even if it didn't have all the safeguards associated with representation by a licensed attorney.
The problem presented is a difficult one involving the balancing of social objectives. This court wishes to carry out the responsibility placed by the state constitution on us to regulate the practice of law for the protection of the public. We are also concerned that individuals have competent representation available to defend their interest. The Minnesota Supreme Court in Cowern v. Nelson, 207 Minn. 642, 290 N.W. 795, presented the issue in these words:
"It is the duty of this court so to regulate the practice of law and to restrain such practice by laymen in a common sense way in order to protect primarily the interest of the public and not to hamper and burden such interest with impractical technical restraints no matter how well supported such restraint may be from the standpoint of pure logic."
Under the theory of comity, the Minnesota Supreme Court, in Cowern, upheld the provisions of a statute permitting brokers to draw documents incidental to real estate transactions in which they acted as agents. The Minnesota court made one change in the statute-the brokers could not charge for the document preparation.
In two other instances, courts from other states have upheld statutory provisions which allowed non-lawyers to perform selected activities that constituted the practice of law. State v. Dinger, 14 Wis.2d 193, 109 N.W.2d 685 (1961); Denver Bar Association v. Public Utilities Commission, 154 Colo. 273, 391 P.2d 467 (1964). For a number of years the Judiciary of California has allowed lay representation of claimants in Workmen's Compensation Hearings. See Eagle Indemnity Co. v. Industrial Accident Commission, 217 Cal. 244, 18 P.2d 341 (1933); Bland v. Reed, 261 Cal. App.2d 445, *264 67 Cal. Rptr. 859 (1968). In the cited cases the central theme has been the effort to achieve a balance between public need and public protection.
After weighing and considering the various arguments presented by the parties and amici curiae, we have determined that it is in the public interest for us to adopt in part the legislative provision at issue and to allow lay representation of employees in administrative hearings dealing with personnel matters under the following conditions: 1) the lay representation must be provided without fee; 2) the subject matter of the hearing must have a value or represent an amount insufficient to warrant the employment of an attorney, but in no event shall lay representation be permitted if the value or amount involved exceeds $1,000.00. This grant of permission for limited lay representation will be withdrawn should the results of experience with such representation prove to be against the public interest. It must also be noted that this grant of permission for lay representation does not affect the provisions of A.R.S. § 12-2234 which makes communications between attorney and client privileged. The lay representative is not an attorney within the means of A.R.S. § 12-2234, so there is no statutory privilege to protect the confidentiality of communications between an employee and his lay representative.
The respondents are directed to allow the petitioner to be represented by a non-lawyer in the pending personnel hearing.
STRUCKMEYER, C.J., and HAYS and GORDON, JJ., concur.
CAMERON, Justice, dissenting.
I dissent from that portion of the opinion and decision which would admit non-lawyers to the limited practice of the law before the Maricopa County Employees Merit System Commission.
It is, of course, tempting to rule that when the amount in controversy is not sufficient to make retention of an attorney financially feasible, then anybody may represent a person no matter how unqualified the "volunteer attorney" may be, as long as no fee is involved. I am concerned that persons not admitted to the bar nor bound by the same code of conduct as members of the bar and not subject to the discipline of this court are now, by this decision, permitted to practice law even on a limited basis. Hackin v. State, 102 Ariz. 218, 427 P.2d 910, appeal dismissed 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 (1967), reh. den. 389 U.S. 1060, 88 S.Ct. 766, 19 L.Ed.2d 866 (1968).
I do not imply that Mr. Tom Donnelly, the union representative in this case, is in any way ethically or morally deficient. It is noted, however, that Mr. Donnelly, the person petitioner wished to represent her, is a representative of the American Federation of State, County and Municipal Employees Union. If this union wishes to assist its members in these matters before the Commission, and it is commendable that they wish to do so, it seems to me they could, without too much additional expense, employ an attorney for that purpose. The result of the decision of this court is not so much to provide individuals with the assistance of a non-lawyer to represent them before the Commission, but to allow their union to dispense with employing an attorney for its members and instead provide a non-attorney for legal representation. The opportunity for mischief in such a scheme far outweighs any benefits that may result.
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Carmike Holding I, LLC v Smith (2020 NY Slip Op 01042)
Carmike Holding I, LLC v Smith
2020 NY Slip Op 01042
Decided on February 13, 2020
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 13, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
2017-03188
(Index No. 5403/14)
[*1]Carmike Holding I, LLC, respondent,
vDavid R. Smith, appellant, et al., defendants.
John J. Caracciolo, East Northport, NY, for appellant.
Locke Lord LLP, New York, NY (Robert H. King of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant David R. Smith appeals from a judgment of foreclosure and sale of the Supreme Court, Suffolk County (W. Gerard Asher, J.), dated November 21, 2016. The judgment of foreclosure and sale, upon an order of the same court dated September 14, 2015, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant David R. Smith and for an order of reference and denying that defendant's cross motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him, and upon an order of the same court dated November 21, 2016, granting the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale and denying that defendant's cross motion pursuant to CPLR 5015(a)(3) to vacate the order dated September 14, 2015, and pursuant to CPLR 2221 for leave to renew his cross motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him and his opposition to the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against him and for an order of reference, confirmed the referee's report and directed the sale of the subject premises.
ORDERED that the judgment of foreclosure and sale is affirmed, with costs.
On October 6, 2011, the defendant David R. Smith (hereinafter the defendant) executed a note evidencing a loan from the plaintiff and nonparty Steven P. Raia in the principal sum of $275,000. As security for the obligation, the defendant executed a mortgage in favor of the plaintiff and Raia encumbering certain real property located in Babylon. An allonge to the note contained an endorsement to the plaintiff, without recourse. On January 8, 2013, Raia assigned his interest in the mortgage to the plaintiff. On March 13, 2014, the plaintiff commenced this mortgage foreclosure action against the defendant and others, alleging, inter alia, that the defendant defaulted in his payment obligations under the terms of the note and mortgage. The defendant served an answer dated May 9, 2014, wherein he asserted several affirmative defenses, including violations of Banking Law §§ 6-l, 6-m, and 590.
The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him. In an order dated September 14, 2015, the Supreme Court granted the plaintiff's motion and denied the defendant's [*2]cross motion. The court determined that the plaintiff had demonstrated its entitlement to judgment as a matter of law against the defendant by submitting the unpaid note, the mortgage, and evidence of the defendant's default in payment. It also determined that the plaintiff had established that it did not qualify as a lender under the Banking Law and was thus exempt from the licensing provisions of Banking Law §§ 6-l(1) and 590(2). The court further determined that the defendant failed to raise a triable issue of fact in opposition to the plaintiff's prima facie showing.
In April 2016, the plaintiff moved, inter alia, for a judgment of foreclosure of sale. The defendant cross-moved pursuant to CPLR 2221 for leave to renew his prior cross motion to dismiss the complaint insofar as asserted against him and his opposition to the plaintiff's prior motion for summary judgment and, upon renewal, to dismiss the complaint insofar as asserted against him on the grounds that the plaintiff violated Banking Law §§ 6-l and 6-m and RPAPL 1306. The defendant also cross-moved pursuant to CPLR 5015(a)(3) to vacate the order dated September 14, 2015, and to dismiss the complaint insofar as asserted against him on the ground that the plaintiff misrepresented to the court that it was not a "lender" as that term is defined in the Banking Law.
In an order dated November 21, 2016, the Supreme Court granted the plaintiff's motion, inter alia, for a judgment of foreclosure and sale and denied the defendant's cross motion. In denying that branch of the defendant's cross motion which was for leave to renew his prior cross motion to dismiss and his opposition to the plaintiff's prior motion for summary judgment, the court determined that the defendant failed to demonstrate that the public mortgage records upon which he relied in support of his assertion that the plaintiff qualifies as a lender under the Banking Law were not available for submission on his original cross motion. Furthermore, the court determined that the defendant failed to provide a reasonable justification for his failure to present this evidence on the prior motion, and did not substantiate the allegation that the plaintiff was a lender as defined in Banking Law § 590 in that some of the mortgages made by the plaintiff were commercial, not residential. Thus, the court concluded that the plaintiff was not required to comply with the filing requirements of RPAPL 1306. The court also denied that branch of the defendant's cross motion which was pursuant to CPLR 5015(a)(3) to vacate the order dated September 14, 2015. The court then issued a judgment of foreclosure and sale, and the defendant appeals.
"A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d 454, 454-455). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Okumus v Living Room Steak House, Inc., 112 AD3d 799; Bank of N.Y. Mellon v Izmirligil, 88 AD3d 930, 932; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437). " The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion'" (Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 982, quoting Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586). " However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented'" (Cioffi v S.M. Foods, Inc., 129 AD3d 888, 891, quoting Deutsche Bank Trust Co. v Ghaness, 100 AD3d at 586). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Worrell v Parkway Estates, LLC, 43 AD3d at 437; see Okumus v Living Room Steak House, Inc., 112 AD3d at 799; Sobin v Tylutki, 59 AD3d 701, 702; Renna v Gullo, 19 AD3d 472, 473).
Here, the defendant failed to establish that the alleged new evidence, to wit, public mortgage records that were recorded in 2011, was not available at the time of the original motion several years later. The defendant also failed to offer any excuse, let alone a reasonable justification, for failing to present the purported new evidence on the original motion. As the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (see HSBC Bank USA, N.A. v Nemorin, 167 AD3d 855), we agree with the court's determination denying that branch of the defendant's cross motion which was for leave to renew. Further, even assuming that the defendant had a reasonable justification for failing to submit this evidence in opposition to the original motion, he failed to [*3]demonstrate that it would have changed the prior determination (see Matter of O'Gorman v O'Gorman, 122 AD3d 744, 745; Williams v Nassau County Med. Ctr., 37 AD3d 594; Giovanni v Moran, 34 AD3d 733).
We also agree with the Supreme Court's determination denying that branch of the defendant's cross motion which was pursuant to CPLR 5015(a)(3) to vacate the order dated September 14, 2015. The defendant failed to establish that the plaintiff's failure to disclose the publicly recorded mortgages, in its original motion papers, was indicative of fraud, misrepresentation, or other misconduct sufficient to warrant vacatur of the order pursuant to CPLR 5015(a)(3) (see Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980; Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676, 677-678; Rojas v Paine, 101 AD3d 843; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810).
We agree with the Supreme Court's determination granting the plaintiff's motion, inter alia, for a judgment of foreclosure and sale. The plaintiff, which did not originate more than three residential mortgage loans in a calendar year, nor more than five in a two-year period, was exempt from the licensing provisions of Banking Law § 590, and was not a lender within the meaning of Banking Law §§ 6-l or 6-m (see Banking Law §§ 6-l[1][i]; 6-m[1][f]; 590[2][a][iii]; Balsam v Fioriglio, 123 AD3d 750, 751-752). Moreover, the plaintiff was not an entity falling within the definition of any other category to which the provisions of Banking Law §§ 6-l and 6-m apply. Therefore, the prohibitions, obligations, and requirements prescribed by sections 6-l, 6-m, and 590 of the Banking Law are inapplicable (see Balsam v Fioriglio, 123 AD3d at 751-752).
The parties' remaining contentions are without merit.
DILLON, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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708 N.W.2d 231 (2005)
270 Neb. 749
STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator,
v.
Richard K. WATTS, respondent.
No. S-05-031.
Supreme Court of Nebraska.
December 9, 2005.
*233 John W. Steele, Assistant Counsel for Discipline, for relator.
No appearance for respondent.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.
PER CURIAM.
The Counsel for Discipline of the Nebraska Supreme Court (the Counsel) brought this action against attorney Richard K. Watts. We sustained the Counsel's motion for judgment on the pleadings and reserved the issue of the appropriate sanction. We now order that Watts be disbarred.
BACKGROUND
In January 2005, the Counsel filed formal charges against Watts. The charges state that Watts was admitted to practice law in 1988 and was engaged in private practice. He is currently under suspension for nonpayment of bar dues and has relocated to Colorado. When he relocated, he failed to inform all his active clients.
In 2001, Watts settled a case for $621,647.08. An insurance company deposited a check in Watts' trust account for $520,000, which was made payable to both Watts and the client and was divided between them. Another check for $101,647.08 was deposited that was made payable only to Watts' trust account. The client believed that the second check was used to pay accrued medical bills, subrogation interests, and future medical bills. Not all bills were paid, however, and some bills were turned over to collection agencies. A review of the bank statements shows that $89,942.89 was paid to several health care providers and that there should be a balance of $11,704.19 still in the trust account to pay the remaining bills.
In 2004, Watts settled a workers' compensation claim for a client and issued a check written on his personal account. The check was returned twice for insufficient funds. The Counsel believes that Watts never deposited the check into his trust account. In January and April 2004, the Counsel received notice that Watts' trust account was overdrawn. Therefore, the Counsel believes that Watts did not maintain sufficient balances in the account.
In January 2004, the Counsel sent Watts a letter requesting an explanation for the overdrafts. The Counsel later sent a request for an accounting of $700 claimed to have been paid to him from a civil suit. When the Counsel received notice of the insufficient funds check, it also forwarded that and a request for a response. In July, notice of a new grievance was sent and the Counsel requested that Watts respond to all pending grievances. Watts then telephoned acknowledging receipt of the letter. He provided a new address and telephone number where he could be reached. Watts called again the next day and briefly explained the reasons for the overdrafts. He stated that he would return to Nebraska the following weekend to retrieve files from storage so that he could respond to the grievances. Watts did not further respond.
The formal charges allege that Watts' conduct violated his oath of office as an attorney under the following disciplinary rules: Canon 1, DR 1-102(A)(1) and (3) through (6) (misconduct), and Canon 9, DR 9-102(A) and (B)(3) and (4) (preserving identity of funds and property of client), of the Code of Professional Responsibility. Watts did not file an answer. On March *234 16, 2005, we sustained the Counsel's motion for judgment on the pleadings.
ANALYSIS
Having granted judgment on the pleadings, the sole issue before us is the appropriate discipline. Neb. Ct. R. of Discipline 4 (rev.2004) provides that the following may be considered by this court as sanctions for attorney misconduct: (1) disbarment; (2) suspension for a fixed period of time; (3) probation in lieu of suspension, on such terms as the court may designate; (4) censure and reprimand; or (5) temporary suspension.
Regarding the imposition of attorney discipline, each case must be evaluated individually in the light of the particular facts and circumstances of that case. See State ex rel. Counsel for Dis. v. Lechner, 266 Neb. 948, 670 N.W.2d 457 (2003). For purposes of determining the proper discipline of an attorney, we consider the attorney's acts both underlying the events of the case and throughout the proceeding. Id.
To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, we consider the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender's present or future fitness to continue in the practice of law. Id. In addition, the determination of an appropriate penalty to be imposed on an attorney in a disciplinary proceeding requires consideration of any mitigating factors. Id.
Here, Watts violated several disciplinary rules and violated his oath of office as an attorney. He has failed to respond to the charges, and there is no record of mitigating factors. We have previously disbarred attorneys who, like Watts, violated disciplinary rules regarding trust accounts, mishandled client funds, and failed to cooperate with the Counsel during the disciplinary proceedings. See, State ex rel. Counsel for Dis. v. Lechner, supra; State ex rel. Special Counsel for Dis. v. Brinker, 264 Neb. 478, 648 N.W.2d 302 (2002); State ex rel. NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000).
We have considered the undisputed allegations of the formal charges and the applicable law. Upon consideration, we find that Watts should be disbarred from the practice of law in the State of Nebraska.
CONCLUSION
We order that Watts be disbarred from the practice of law in the State of Nebraska, effective immediately. Watts is directed to comply with Neb. Ct. R. of Discipline 16 (rev.2004), and upon failure to do so, he shall be subject to punishment for contempt of this court. Watts is further directed to pay costs and expenses in accordance with Neb.Rev.Stat. §§ 7-114 and 7-115 (Reissue 1997) and Neb. Ct. R. of Discipline 23(B) (rev.2001).
JUDGMENT OF DISBARMENT.
MILLER-LERMAN, J., participating on briefs.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-02353-SCT
ANDREW EARL CREELY, SR.
v.
C. DELBERT HOSEMANN, JR.
DATE OF JUDGMENT: 09/09/2003
TRIAL JUDGE: HON. JON M. BARNWELL
COURT FROM WHICH APPEALED: LEFLORE COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: ROGER M. TUBBS
ATTORNEYS FOR APPELLEE: DAVID W. MOCKBEE
JASON EDWIN WEEKS
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 02/10/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., GRAVES AND DICKINSON, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. This is an option contract case in which we must determine whether the optionee, C.
Delbert Hosemann, Jr., properly exercised his option to purchase from the optionor, Andrew
Earl Creely, Sr., an undivided half interest in approximately 150 acres of what apparently must
be prime duck hunting land.
BACKGROUND FACTS AND PROCEEDINGS
¶2. On September 11, 1999, Johnny Rayburn entered into a Contract and Agreement to
purchase 1,142 acres of land from Dan O’Neal and E.C. Stewart, Jr. Rayburn later assigned his
interest to Creely. Six days after the assignment to Creely, Danmar, Inc. and Stuart Company
entered into a contract to sell1 Buck Ridge Hunting Club of Mississippi, Inc.,2 the same
property. When Creely learned of the Buck Ridge contract, he and Rayburn filed a Complaint
for Temporary Restraining Order, Permanent Injunction and Specific Performance of Contract
against Dan O’Neal3; E.C. “Sonny” Stuart, Jr.; Danmar, Inc.; and Stuart Land and Timber, LLC,
to prevent the sale.
¶3. On October 5, 1999, prior to the TRO hearing, Creely and Hosemann reached a
compromise. In exchange for releasing his claim under the Buck Ridge contract, Hosemann
received an option from Creely to purchase a one-half undivided interest in the portion of the
1,142 acres known as “The Scatters.” The option agreement stated:
In consideration of Hosemann’s release of any contract rights to Buck Ridge
Hunting Club and termination of his Contract to Purchase same, Earl Creely, an
individual resident of Tupelo, Mississippi and Delbert Hosemann, an individual
resident of Jackson, Mississippi agree as follows:
1. Creely grants Hosemann an Option to Purchase an undivided one-half
interest in that certain 154 acres located in the “Scatters” portion of Buck
Ridge, a legal description of Buck Ridge is attached hereto for the sum of Fifty
Three Thousand Nine Hundred Dollars ($53,900.00) to be paid in cash at
closing.
1
The contract was signed by Dan O’Neal, on behalf of Danmar, Inc. and E.C. Stuart, on behalf
of Stuart Company.
2
The sole shareholder of Buck Ridge Hunting Club of Mississippi, Inc., was Hosemann, who is
also a tax attorney.
3
Various documents have spelling variations of Dan O’Neal (O’Neal, O’Neill, O’Neil),
however, we will use O’Neal throughout this opinion.
2
2. Said Option is to be exercised by November 25, 1999 or later if
Creely closes purchse (sic) of the property after November 25, 1999.4
3. Creely will convey this property interest by Warranty Deed.
4. The Warranty Deed is to reflect a right of first refusal in favor of both
Creely and Hosemann in the event of the sale of the property to anyone outside
of the parties’ immediate families.
5. For so long as Creely or his immediate family owns the Buck Ridge
property, Creely agrees to allow Hosemann and his children, Charles Delbert
Hosemann, III, Mark M. Hosemann and Kristen C. Hosemann (and their invited
guests in their presence) to duck hunt only on that certain eastern part of the
Buck Ridge property beginning with and including Twin Lake and east to the
property line.
6. Taxes, federal program payments and all other income or expenses
will be divided as the parties’ interest may appear.
WITNESS the signatures of Creely and Hosemann on this the 5th day
of October, 1999.
¶4. As a result of the compromise, the suit was dismissed, and Danmar, Inc., and Stuart Land
and Timber, L.L.C., executed a release of real estate purchase and sale agreement in favor of
Buck Ridge Hunting Club and Hosemann. Hosemann and Creely agreed to have attorney Donny
Brock close the Creely-Hosemann Option. Brock was the attorney who had closed Creely’s
purchase of the 1142 acres.
¶5. On November 23, 1999, Hosemann wrote Creely a letter which stated:
I’m sorry I missed you by telephone today. As you know, we were hoping
to have closed by November the 25th. However, we have been unable to obtain
a legal description. I have requested Butch Montgomery, who did the original
survey, to provide us with a legal description for the conveyance. He asked me
where the line should be drawn on the land. I asked him to draw the line at the
approximate normal water level and not at the top of the bank. This was our
understanding when we first discussed this matter in Greenwood. This would,
4
Creely closed on October 14, 1999.
3
in essence, provide me with a half interest in the water property only and not in
any of your other land. Neither Butch nor I are confident of exactly what the
final acreage will be. If it is more or less than the 154 acres we anticipated, we
will adjust by the $700.00 per acre agreed price.
Butch telephone (sic) me today and hopefully will complete the survey
tomorrow, Wednesday, November 24th. As soon as the legal description is
prepared I will prepare a Warranty Deed for your review and we can complete
the closing.
I am looking forward to seeing you this weekend.
¶6. On that same day, Hosemann sent a second letter to Creely which included the
following:
Enclosed please find a map as prepared by Robert A. Montgomery, Jr. of
our land in Money, Mississippi. It reflects 140.68 acres. . . . I also have a copy
of an aerial photograph I ordered for you of your property. . . . I am also
enclosing a copy of his bill for $740.00. I have already sent Robert a check for
$370.00 as my portion of the bill.. . . .
How would you prefer the deed to be prepared? Would you prefer for
your lawyer to do it or for me to make a first draft?
¶7. After these letters were sent, Hosemann, Creely and Brock exchanged numerous
documents including correspondence, draft deeds, and a limited liability agreement draft,
which were pertinent to the sale of property by Creely to Hosemann. Additionally, the
following activities took place:
(1) Hosemann and Creely shared the cost of building an access road to the
Scatters.
(2) They hunted the Scatters together during the 1999-2000 duck season.
(3) They shared the cost of a Mississippi Department of Environmental
Quality survey.
4
¶8. On September 5, 2000, Hosemann tendered the purchase price to Brock, who placed
it into a trust account. However, on December 6, 2000, Creely wrote Hosemann a letter
stating: “As of this time I do not wish to sell the property located in McIntyre Scatters. If this
should change, I will be in touch.”
¶9. On September 21, 2001, Hosemann filed this suit in the Leflore County Chancery Court
against Creely seeking specific performance of the option contract. Creely filed a
counterclaim alleging misrepresentation and fraud. At the conclusion of the trial, the
Chancellor issued his Findings of Fact and Conclusions of Law and soon thereafter entered a
final judgment in favor of Hosemann on both the complaint and the counterclaim. The
Chancellor ordered specific performance of the option contract. It is from this judgment that
Creely now appeals.
ANALYSIS
¶10. On appeal Creely raises the following issues for our review:
I. The Hosemann claim must fail for lack of consideration based on
misrepresentation.
II. The Hosemann claim must fail because a modification of a written
contract must be supported by new consideration.
III. The Hosemann claim must fail because Hosemann failed to exercise the
Option.
IV. Hosemann’s seven counter-offers extinguished the Option.
V. Hosemann’s claim must fail because changes, if any, to the Option
contract were not in writing and violated the Statute of Frauds.
¶11. We employ a limited standard of review when reviewing the decision of a chancellor.
McNeil v. Hester, 753 So. 2d 1057, 1063 (Miss. 2000). “The findings of a chancellor will not
5
be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or
applied the wrong legal standard. Id. “The standard of review employed by this Court for
review of a chancellor’s decision is abuse of discretion” Id. “However, for questions of law,
the standard of review is de novo.” Id.
I. Consideration.
¶12. It is surprising that Creely says Hosemann provided no consideration for the option
agreement. He bases this argument on his belief that he would have prevailed in the litigation
involving the two contracts for the purchase of the 1,142 acres. Since Hosemann’s contract
was unenforceable, he argues, Hosemann gave up nothing by settling the litigation. This theory,
if valid, would lead to the inescapable conclusion that virtually every settlement could be set
aside for lack of consideration. Lawsuits usually involve one party who is right and one who
is wrong. It is not the potential recovery in the lawsuit that provides consideration in a
settlement, but rather the right to pursue the recovery. In this case, Hosemann relinquished his
right to pursue his claim that his contract for the purchase of the 1,142 acres was valid. This
abandonment of the right to pursue a claim provides the necessary consideration.
¶13. Additionally, the option contract’s recital of consideration creates a rebuttable
presumption that consideration was provided. The Chancellor put it this way:
[Creely] puts forth the argument that there was no consideration given for the
option agreement. “Where the instrument in controversy contains a statement
or recital of consideration, it creates a rebuttable presumption that
consideration actually exited.” Daniel v. Snowdoun Ass’n., 513 So. 2d 946,
950 (Miss. 1987). [Creely] failed to adequately rebut the presumption created
by the recitation contained within the Option agreement. Clearly there was
consideration in the dismissal of the lawsuit.
6
¶14. Creely contends that Hosemann did not have any “rights” to purchase the land because
Creely entered into a contract six days prior to Hosemann’s entering into the Buck Ridge Real
Estate Purchase and Agreement. Therefore, he says his contract took precedence because
Mississippi is a race-notice state; first in time is first in right. This is nothing more than post-
settlement argument of the merits of the litigation, which is ineffective to disturb the
settlement.
¶15. Creely also claims he is entitled to set aside Hosemann’s claim of consideration
because it was based upon a misrepresentation. Creely says Hosemann falsely represented that
the rights to the land under the Buck Ridge Contract were his personally as opposed to those
of the Buck Ridge Hunting Club. At trial, Creely testified that Hosemann claimed “he” had a
contract to purchase the same land.
¶16. To support his position, Creely cites Godfrey, Bassett & Kuykendall Architects, Ltd.
v. Huntington Lumber & Supply Co., 584 So. 2d 1254 (Miss. 1991), which says:
The representation was material, it induced the appellees to execute the
supplemental agreement, and it was false. The result here is the same regardless
of whether the misrepresentation was wilfully and knowingly made or whether
it was innocently made.
Id. at 1258, citing McGee v. Clark, 343 So. 2d 486, 488-89 (Miss. 1977).
¶17. Creely also cites Sellars v. Grant, 196 F.2d 677, 679 (5th Cir. 1952), which states that
“it would be unjust to allow one who has made material false representations, however
innocently, to retain the fruits of a bargain induced thereby.”
¶18. We find Creely’s position quite curious, given the proof at trial, including Creely’s own
testimony. The record reflects that during an October 5, 1999, meeting (which was three
7
weeks after Hosemann’s contract was signed) Creely learned that his own contract had not
been properly executed. “Dan O’Neal and E. C. Stuart, Jr.,” were listed as sellers on Creely’s
September 11 contract, but only O’Neal signed as seller. Additionally, Creely learned that
neither O’Neal nor Stewart was a record owner of the property. To make matters worse for
Creely, an addendum to the contract was signed only by O’Neal. 5
¶19. Having learned of the defects in his own contract, Creely re-negotiated and entered into
a new contract dated October 5, 1999, between Danmar, Inc. and Stuart Land and Timber,
L.L.C., as sellers, and Earl Creely as buyer. The new contract had additional terms and a
purchase price of $50,000 more than the contract dated September 11, 1999. Furthermore,
the new contract does not reference the September 11, 1999, contract.
¶20. Creely testified he never informed Hosemann of the defects in his September 11, 1999,
contract. At trial, Creely provided the following testimony in response to questions from
Hosemann’s attorney:
Q. And likewise, you didn’t tell Delbert, now Delbert, now we’re fixing to settle
up, and I’m going to get the property, and you’re just going to get an option.
And, you know, my contract is really not signed by the owner? You didn’t tell
him that; did you?
A. No, Sir.
Q. And you didn’t tell him that your contract had terms that you had added that
had not been agreed to in writing by the owner; did you?
A. No, sir.
Q. So because both of you came, and you said, okay, we recognize we’ve got
claims - - good, bad or somewhere in between - - can we work it out?
And that’s what y’all did.
5
O’Neal is the President of Danmar, Inc.
8
A. That’s correct.
¶21. So, in summary, Creely claims Hosemann was guilty of misrepresentation and fraud.
In truth, however, Creely’s operative contract was clearly signed after Hosemann’s contract,
and it was Creely who did not inform Hosemann of this and other defects. Under Creely’s
theory of consideration, it is Creely, not Hosemann, who failed to provide consideration for
the option contract.
¶22. Creely argues that Hosemann should not be allowed to personally seek enforcement of
the option contract because the buyer in the real estate contract was Buck Ridge Hunting Club,
not Hosemann. However, Hosemann points out that this Court has held:
[A]n executive officer of a close corporation . . . in carrying on the usual
business of the corporation has the same apparent authority as a partner in a
partnership as against third parties who in good faith rely upon his
representations.
Baxter Porter & Sons Well Servicing Co. v. Venture Oil Corp., 488 So. 2d 793, 796 (Miss.
1986). Hosemann was the sole shareholder of Buck Ridge Hunting Club. Hosemann contends
that the evidence was undisputed that Hosemann had the authority to sign the Option Contract
to bind Buck Ridge Hunting Club and to release the corporation’s contract claim to purchase
the property. Hosemann points out that after the October 5, 1999 agreement, there was never
any claim by Hosemann or Buck Ridge Hunting Club of any contract rights in purchasing the
1142 acres of land.
¶23. While Hosemann’s argument is sound, it is irrelevant. Creely does not question
whether Hosemann had authority to bind Buck Ridge Hunting Club. Rather, he alleges that
Hosemann misrepresented to him that Hosemann personally had a contract to purchase the
9
same property. Creely asserts that if he had known that Hosemann did not personally have the
contract, he would not have entered into the option agreement.
¶24. Hosemann testified that there was a discussion at the meeting regarding him taking the
option in his own name:
Q Now, was there any discussion in these conversations about you, Delbert
Hosemann, signing the option, as opposed to the corporation signing the option?
A Yeah. I explained. When we got there, I said, well, I'm going to take this in
my own name, then, because I wanted my three children to be able to hunt. One
of my sons is an active hunter, so we discussed the fact that I would take it as
"Delbert Hosemann."
Q Did you have any discussions about the contract, your contract, being in the
name of the corporation, as opposed to Delbert Hosemann, personally?
A Only from the standpoint that I would give the releases -- all the releases --
personally and corporately or anything else they wanted, but that I was going to
assign this to me; and I was going to close it in my name because I wanted my
children to have a part of it.
And, also, I had started that corporation to own the entire property, the
whole 1100 acres, which was at one point a $1 million purchase. So I would
have to have other stockholders. But I could afford to purchase half the property
just myself. So I had intended to use the corporation, really, as a financing
vehicle to have other stockholders. But since it was going to be he and I, I told
him I wouldn't use Buck Ridge. I was just going to use my own personal funds,
and I'd buy it just myself.
Q How did you expect to effect that change, if you will, from the corporation
having the contract to you buying the property personally?
A Well, I assigned it to myself. It was a pretty close meeting. It was just me
there. And so I said, well, I'm going to assign this to myself, and then I'll go
forward. So I was -- I was the president and the stockholder of the corporation
and assigned it to my own self, so there wasn't any real big meeting involved.
We just agreed to it.
10
¶25. Hosemann did sign the option contract individually and not in the name of his
corporation. Subsequently, Hosemann executed a Resolution of Buck Ridge Hunting Club of
Mississippi, Inc.6 which provided:
This Resolution will confirm and memorialize that on October 5, 1999 prior to
Delbert Hosemann’s execution of the Option Agreement with Andrew Earl
Creely Sr., Buck Ridge Hunting Club Inc. of Mississippi acting by and through
its only Director, Officer and Shareholder did assign all of its rights under the
Real Estate Purchase and Sale Agreement by and between Danmar, Inc./Stuart
Company and Buck Ridge Hunting Club, Inc. of Mississippi dated September 17,
1999 to Delbert Hosemann in consideration for Delbert Hosemann Jr.’s
agreement to take over all of Buck Ridge Hunting Club Inc.’s obligations and
liabilities under the Real Estate Purchase and Sale Agreement.
¶26. There is no question that Hosemann had the authority to sign the option agreement and
bind Buck Ridge Hunting Club to the consideration that was given for the option.
Subsequently, a Resolution was executed which memorialized the October 5, 1999 transaction
and assigned all of the rights of the contract to Hosemann individually.
¶27. Based upon these facts which are reflected in the record, we cannot say the Chancellor
abused his discretion, and we find this issue void of any merit.
II. Exercise of the Option.
¶28. The precise issue Creely raises is whether the language of the option agreement, “Said
Option is to be exercised by November 25, 1999," sets Hosemann’s deadline for notifying
Creely of intent to exercise the option or for closing the purchase by payment of the purchase
price and transfer of title.
6
This resolution was signed by Hosemann as the President and Director of Buck Ridge Hunting
Club but was not dated.
11
¶29. In Busching v. Griffin, 542 So. 2d 861, 864 (Miss. 1989), this Court held that written
notice to the seller of intent of the option holder to exercise an option has the effect of an
acceptance, converting the option into an enforceable bilateral contract. It is not necessary for
an option holder to tender the purchase price in order to exercise the option. Id. at 864-65.
The holder of an option is entitled to specific performance of the optioner’s duty to convey,
so long as the holder is willing to pay the option price. Id. at 864.
¶30. The Chancellor held:
[Creely] also raises, as a defense, the argument that [Hosemann] did not exercise
the Option within the time allowed by the Option’s terms. This Court finds that
[Hosemann] did, in fact, exercise the Option prior to the November 25, 1999,
deadline. In addition, any delay in the exercising of the Option was due to
[Creely’s] actions, and finally [Creely’s] inaction and delay of never making a
final decision on the details of closing the transaction.
***
The Court finds that the Option agreement was duly exercised by the November
25, 1999, deadline, and that all that followed was an attempt by both parties to
work out the details of closing the transaction, some of which included
modifications agreed to by the parties and other modifications not agreed to.
¶31. We find the Chancellor was exactly correct. The Option Contract contained all the
essential terms:
a. Description of the property;
b. Consideration for purchase of the property; and
c. The date by which the option was to be exercised.
Holifield v. Veterans’ Farm & Home Bd., 218 Miss. 446, 67 So. 2d 456 (1953); McCorkle
v. Loumiss Timber Co., 760 So. 2d 845 (Miss. Ct. App. 2000).
¶32. In Duke v. Whatley, 580 So. 2d 1267 (Miss. 1991), this Court, when making a
distinction between an option and right of first refusal contract, held:
12
The option compels performance within the time limit specified, or if none is
mentioned, then within a reasonable time, whereas the right of first refusal has
no binding effect unless the offeror decides to sell.
***
In the case of an option, as noted above, the option-giver has no choice but to
sell when the option is accepted according to its terms. What is usually provided
is that there will be an expression of acceptance communicated to the
option-giver, or that payment according to the terms of the option will be made
within the time limit. Thus, an option is an offer made irrevocable by contract;
however, it may be made conditional upon the happening of some specified
event.
The option gives a clear right to the option-holder, regardless of the wishes of
the option-giver.
Williston on Contracts, § 1441A (Jaeger, 3d ed. 1968).
Id. at 1272. Here, the option contract provided a specific time in which Hosemann was
required to exercise the option. However, the contract failed to express a closing date.
Therefore, the date of closing was to be within a reasonable time from the date of exercising
the option. This Court has held that what is a reasonable time “in which to exercise the option
depends upon the facts and circumstances of the particular case.” Miss. Power Co. v. Bennett,
173 Miss. 109, 161 So. 301, 308 (1935). See also Mitts v. Price, 129 Miss. 554, 92 So.
163, 165 (1922).
¶33. As discussed supra, Creely and Hosemann engaged in numerous activities from the
exercise of the option by Hosemann until he tendered payment. Thus, we find no merit to this
issue.
¶34. We now move to issues III and IV, which we shall discuss together.
III. New Consideration.
IV. Seven counter-offers.
13
¶35. These assignments of errors require a finding that Hosemann made counter-offers and
modifications to the option contract. The Chancellor did not so find, and neither do we.
¶36. The Chancellor held:
[Creely] alleges that [Hosemann] made a counter offer to [Creely] which
extinguished the original offer. Although it is true that beginning December 28,
1999, [Hosemann] did first assert several issues not included within the Option
agreement, the Court does not find that these negotiations constitute a counter
offer rendering the Option agreement extinguished.
¶37. The record amply supports the Chancellor’s findings. Both parties made numerous
attempts to prepare an acceptable deed and to negotiate missing or unclear terms, but these
efforts do not rise to the level of “modifications” or “counter-offers.”
¶38. When the option to purchase the land was exercised by Hosemann, the option became
a valid and binding contract and the option agreement no longer existed. In Holifield, 67 So.
2d at 457-58, this Court held:
The effect of the acceptance of an outstanding offer in a case of this kind is
stated in 66 C.J., p. 528, Vender and Purchaser, par. (66) c, as follows:
“Acceptance of an outstanding offer completes the contract, and it is thereupon
binding upon both parties, so that neither the offer nor the acceptance can
thereafter be revoked. An agreement or offer giving an opportunity to purchase
land within a certain time, although without consideration, becomes a binding
contract when accepted within that time if it has not been previously been
withdrawn.”
67 So. 2d at 458.
¶39. This Court also cited 49 Am.Jur. P. 139, par. 118 which stated: “The lack of inadequacy
of consideration for an option should not defeat the right to performance of a contract to
convey after the option had been accepted, if the price to be paid for the land is adequate.” 67
So. 2d at 458.
14
¶40. Furthermore, Ackerman v. Carpenter, 29 A.2d 922, 925 (Vt. 1943), although not
binding upon us, is persuasive authority for the proposition that once a bilateral contract is
created, “the plaintiff could make proposals either to vary or make more specific the terms of
the executory contract without jeopardizing her rights thereunder. Such proposals made by one
party and not accepted by the other would leave the contract exactly as though the proposals
had not been made.”
¶41. Creely contends that Hosemann’s first “counter-offer” occurred in a letter dated
December 28, 1999, from Hosemann to Brock, which stated: “Also, you raised several
questions which we need to address including access down the road, etc.” This letter was
written by Hosemann to Brock concerning a conversation that Hosemann had with Brock. It
did not constitute a “counter-offer.”
¶42. Creely also points out that Hosemann had Brock prepare a deed which contained an
easement that was not a part of the original option. The proposed deed did contain an easement
that was described within the option agreement. However, the easement was for the Wiggins
Road, which Hosemann and Creely had agreed to construct. Furthermore, Creely granted
Hosemann permission to use the road when the water was low. Creely testified he granted
permission when they were on good terms. Hosemann concedes that he proposed deed
language not contained in the Option Agreement. Hosemann had no duty to prepare the deed.
Creely, as seller, was required to transfer the property. If he was dissatisfied with Hosemann’s
deed, he was free to prepare his own. Including the easement for use of the road, which had
been discussed by the parties, did not constitute a modification or counter-offer requiring
separate consideration.
15
¶43. Creely testified that another easement in the deed, the Thomas easement, provided
Hosemann access to the Twin Lakes. However, on cross-examination, Creely revealed that the
opposite was in fact true: Hosemann did not have an easement with respect to the license but
would be granted an easement from adjoining land owners. Creely further admitted this
language was consistent with the option agreement.
¶44. We find no merit to these assignments of error.
V. Statute of Frauds.
¶45. Having already determined that there were no material changes to the option contract,
we must find this assignment of error is without merit on its face. The Chancellor held:
The Court further finds that [Hosemann] is entitled to specific performance on
the Option agreement, as written. All modifications discussed by the parties
were unwritten and thus to enforce them would violate the Statute of Frauds.
However, the Court finds that all statutory requirements were met for the
enforcement of the original Option agreement as written.
We agree.
CONCLUSION
¶46. Finding no merit to the assignments of error suggested by Creely, we affirm the
judgment of the Chancellor.
¶47. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
16
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546 F.2d 420
U. S.v.Mastrangelo
No. 76-1536
United States Court of Appeals, Third Circuit
10/18/76
1
E.D.Pa.
AFFIRMED
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139 F.3d 902
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Jeffrey M. MATTSON, Defendant-Appellant.
No. 97-3289.
United States Court of Appeals, Seventh Circuit.
Submitted Feb. 26, 1998.Decided Feb. 27, 1998.
Appeal from the United States District Court for the Western District of Wisconsin. No. 96-CR-96, John C. Shabaz, Chief Judge.
Before Hon. RICHARD A. POSNER, Chief Judge, and Hon. WALTER J. CUMMINGS and Hon. KENNETH F. RIPPLE, Circuit Judges.
ORDER
1
The district court revoked Jeffrey Mattson's term of supervised release and sentenced him to 24 months' incarceration for violating a condition of his supervised release. Mattson's appellate attorney seeks to withdraw on the ground that there are no nonfrivolous issues to be raised on appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); United States v. Wagner, 103 F.3d 551 (7th Cir.1996). Because counsel's Anders brief is adequate on its face, we limit our review of the record to those issues raised in counsel's brief and defendant's response pursuant to Circuit Rule 51(a). Wagner, 103 F.3d at 553; United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). Mattson was notified of his counsel's actions and responded with a "Notice and Motion for Ineffective Assistance of Counsel" which we construe as a response to counsel's motion. Cir.R. 51(a).
2
In April 1992, Jeffrey Mattson was convicted of aiding and abetting an armed bank robbery in violation of 18 U.S.C. §§ 2, 2113(a), (d) and was sentenced in the District Court of Minnesota to 57 months' incarceration followed by a three-year term of supervised release. While serving his term of imprisonment, Mattson's mother smuggled marijuana to him in prison. Consequently, he was convicted of possessing a prohibited object while an inmate in violation of 18 U.S.C. §§ 1791(a)(2) and 1791(b)(4) and was sentenced to a six-month term of imprisonment to be followed by a one-year term of supervised release. In 1996, Mattson began his term of supervised release in the Western District of Wisconsin. While under supervised release, Mattson was involved in a car chase and was convicted in Iowa of eluding an officer and obstructing prosecution. During his work release related to the car chase conviction, Mattson received five citations for driving after license revocation from various law enforcement agencies. In 1997, a warrant was issued for Mattson's failure to report to his probation officer. Mattson was traveling in Virginia without the permission or knowledge of his probation officer and was eventually arrested there. The United States District Court for the Eastern District of Virginia committed Mattson to the custody of the Western District of Wisconsin to face his pending charges.
3
In her Anders brief, counsel raises the possible issue that the district court did not properly comply with Federal Rule of Criminal Procedure 32.1(a)(2) in revoking Mattson's supervised release and that Mattson did not knowingly or voluntarily waive his revocation hearing. The record indicates that the requirements of Rule 32.1(a)(2) were met. Mattson was put on notice of the violation by the government's Rule to Show Cause. See United States v. Kirtley, 5 F.3d 1110, 1113 (7th Cir.1993). With his attorney present, Mattson waived his right to a revocation hearing. The court then directly asked Mattson if he understood that he was waiving his right to a revocation hearing. Mattson replied in the affirmative. The district court explained the evidence against Mattson, i.e., that he did not report as directed to his probation officer and did not submit a truthful and complete written report within the first five days of each month, violating standard condition number two of his supervised release. Mattson responded that he understood and admitted he was guilty of the violation. At the end of the sentencing hearing, the district court again asked if Mattson wished to be heard on whether or not he should have his supervised release revoked to which he replied "I'm willing to waive the revocation hearing." (Sent. Tr. at 6). Therefore, any claim that the district court did not comply with Rule 32.1(a)(2) would be frivolous.
4
Next, counsel raises potential claims regarding Mattson's sentence. Counsel asserts the potential issue that the district court abused its discretion when it deviated from § 7B1.3 (Policy Statement) by sentencing Mattson to 24 months' incarceration under 18 U.S.C. § 3583(e)(3) and that the record did not support the court's sentence. Mattson's failure to report to his probation officer was a Grade C violation under U.S.S.G. § 7B1.1(a)(3), p.s. A Grade C violation with a Criminal History Category of I has a recommended three to nine months' incarceration. U.S.S.G. § 7B1.4(a). However, 18 U.S.C. § 3583(e)(3) allows for up to 36 months' incarceration. We note that Chapter 7B1 of the Sentencing Guidelines is a policy statement and not a guideline that is binding on sentencing judges. United States v. Marvin, No. 96-2721, slip op. at 26-27 (7th Cir. Feb.3, 1998); United States v. Doss, 79 F.3d 76, 78 (7th Cir.1996). The term of imprisonment in the policy statement is entitled to great weight and is an element in the district court's exercise of discretion in sentencing. Doss, 79 F.3d at 78. The district court is not required to follow the policy statement; however, the court cannot ignore the policy statement when sentencing. Id.
5
Here, the district court did not ignore the policy statement, nor was Mattson's sentence "plainly unreasonable." See id. at 79. (When there is no applicable sentencing guideline, the appellate court determines if the sentence is "plainly unreasonable."). The district court considered a number of factors in concluding that the policy statement did not apply to Mattson's case because there was a significant justification for a higher sentence. Specifically, the court clarified that Mattson had continued criminal violations and convictions while on release and that he had not been deterred from criminal conduct as a result of his imprisonment for aiding and abetting an armed bank robbery. The court stated that Mattson refused to cooperate with his probation officer and fled the Western District of Wisconsin. Because the district court considered the policy statement and other relevant factors, Mattson cannot make a nonfrivolous argument that his sentence is "plainly unreasonable." See id.
6
In her Anders brief, counsel also asserts that Mattson may have misunderstood that the court had the authority to sentence him up to 36 months' incarceration under 18 U.S.C. § 3583(e)(3), even though the policy sentencing range was three to nine months. The government stated to the court that § 3583(e)(3) allowed for up to 36 months' incarceration for Mattson's revocation of supervised release. Prior to accepting his revocation hearing waiver, the district court then explained to Mattson the difference between § 7B1.4, p.s. and § 3583(e)(3), including the ranges of imprisonment; Mattson replied that he understood. As such, any claim that Mattson misunderstood the possible penalties involved would be frivolous.
7
In his "Notice of Motion for Ineffective Assistance of Counsel," Mattson asserts that his attorney was ineffective because she had a conflict of interest. After a thorough search of the record, there is no support of any such nonfrivolous claim. Mattson also argues that the court improperly relied upon his 1994 conviction of possessing a prohibited object in prison, that is, the marijuana his mother smuggled into jail, in determining his sentence. The district court may consider a number of factors when determining a sentence under § 3583, including the need to protect the public, the need for deterrence, the seriousness of the offense, the history and characteristics of the defendant, and the policy statements in the sentencing guidelines. See 18 U.S.C. § 3583; Doss, 79 F.3d at 79. Accordingly, the district court's consideration of the marijuana conviction was appropriate and any such claim on appeal would be frivolous.
8
We GRANT counsel's motion to withdraw and DISMISS the appeal as frivolous.
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563 So.2d 145 (1990)
REPUBLIC FUNDING CORPORATION OF FLORIDA, Etc., Appellant,
v.
Oscar F. JUAREZ, Appellee.
No. 89-478.
District Court of Appeal of Florida, Fifth District.
May 31, 1990.
Rehearing Denied July 5, 1990.
*146 Dale K. Bohner of Dale K. Bohner, P.A., Tampa, for appellant.
Thomas F. Neal of Drage, deBeaubien, Knight & Simmons, Orlando, for appellee.
PER CURIAM.
This case involves a summary judgment in favor of a movant asserting an affirmative defense of accord and satisfaction.
Appellant, a real estate broker, and appellee, as owner, had an agreement that if the broker procured a purchaser for the owner's approximately 14 acre parcel of property the owner would pay the broker a commission. There is a present dispute between the broker and the owner as to how the commission was to be computed but both agree that the commission varied with the amount of the purchase price; the broker swears the commission was to be $75,000 for the first $1,275,000 plus 50% of the purchase price over $1,275,000 up to a total of 10% of the total sale price; the owner swears the commission was to be 6.73% of the sale price. Peculiarly this factual dispute is not the issue on this appeal. Apparently, whatever the amount of the commission, it was to be paid, with interest, over a period of time from, and as a percentage of, receipts by the owner-seller of some deferred portion of the purchase money. The purchase price varied with the number of units permitted on the parcel. Apparently the broker did nothing other than "procure" the purchaser and did not know the final actual purchase price for the total transaction. The broker also anticipated a commission on an adjacent .71 acre parcel which was sold by the owner to the same purchaser. At a later point of time the owner-seller wrote the broker advising that the purchaser had made final payment of the purchase money and "Enclosed please find your pro-rata share in the amount of $44,982.53 which represents payment in full of your commission due." The broker deposited the attached check marked "paid in full, full payment".
The broker, who assumed the final payment represented a commission of $87,500 plus interest based on a sale price of $1,300,000, later learned the actual sale price of the 14 acre parcel was $1,359,088 and filed an action for an additional $29,544.00 (50% of $59,088) due under the broker's view as to the agreed commission as well as for $11,900 (10% of $119,000) claimed as commission on the .71 acre parcel. The owner-seller pleaded the affirmative defense of accord and satisfaction and moved for summary judgment citing Mortell v. Keith, Mack, Lewis & Allison, 528 So.2d 1362 (Fla. 3d DCA 1988) as authority for the proposition that the letter and check for $44,982.53 constituted an accord and satisfaction as a matter of law. The trial judge granted summary judgment in favor of the owner. The broker appeals. We reverse.
Accord and satisfaction results when there is an existing dispute as to the proper amount due from one party (the debtor) to another party (the creditor) and the parties mutually intend to effect settlement of the existing dispute by a superceding agreement and the debtor tenders, and the creditor accepts, performance of the new agreement in full satisfaction and discharge of the debtor's prior disputed obligation. Jacksonville Electric Authority v. *147 Draper's Egg and Poultry Company, 557 So.2d 1357 (Fla. 1990); Goslin v. Racal Data Communications, Inc., 468 So.2d 390 (Fla. 3d DCA 1985), rev. denied, 479 So.2d 117 (Fla. 1985); Rudick v. Rudick, 403 So.2d 1091 (Fla. 3d DCA 1981); Hannah v. James A. Ryder Corporation, 380 So.2d 507 (Fla. 3d DCA 1980); and W.C. Murphy Architect, P.A., v. W.P. Austin Construction Corporation, 547 So.2d 302 (Fla. 3d DCA 1989). An accord and satisfaction agreement is often implied from the acts of the parties after the resolution of disputed issues of fact by trial. An accord and satisfaction results as a matter of law only when the creditor accepts payment tendered on the expressed condition that its receipt is to be deemed to be a complete satisfaction of a disputed issue. In the absence of a dispute and a finding or admission that the parties intended to, and did, reach an accord and agreed to resolve that dispute by payment of an agreed amount, a partial payment of a legal obligation does not act to satisfy and discharge that obligation.
There was a "difference" or dispute between the parties in this case as to the broker's entitlement to a commission on the adjacent .71 acre parcel but there is no evidence of a pre-existing dispute between the parties as to the amount of the commission due on the 14 acre parcel, as distinguished from lack of knowledge on the part of the broker as to the actual sale price of $1,359,088.00. Also there is no evidence that the $44,982.53 payment was tendered, and accepted, with the understanding and intention on the part of both parties that the agreed sum was to resolve any dispute and satisfy and discharge the dispute as to whether or not the broker was entitled to a commission on the sale of the .71 acre parcel. Compare W.C. Murphy Architect, P.A., v. W.P. Austin Construction Corporation, 547 So.2d 302 (Fla. 3d DCA 1989). Indeed, while the owner-seller was seeking to establish that the purported accord and satisfaction encompassed both the amount of the commission on the 14 acre parcel and the commission claimed by the broker on the.71 acre parcel, the letter accompanying the check states that the owner-seller had just received final payment and that he was forwarding to the broker a check for $44,982.53 "which represents payment in full of your commission due." This language can easily be interpreted as applying only to the 14 acre sale and not to the sale of the .71 acre parcel. See Jobear, Inc. v. Dewind Machinery Co., 402 So.2d 1357 (Fla. 4th DCA 1981).
The summary judgment is reversed and the cause remanded for further proceedings.
REVERSED.
DAUKSCH, COWART and GRIFFIN, JJ., concur.
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206 Cal.App.2d 352 (1962)
COUNTY OF TUOLUMNE, Plaintiff and Appellant,
v.
STATE BOARD OF EQUALIZATION et al., Defendants and Respondents; CITY AND COUNTY OF SAN FRANCISCO, Real Party in Interest and Appellant.
Civ. No. 70.
California Court of Appeals. Fifth Dist.
Aug. 1, 1962.
George A. Huberty for Plaintiff and Appellant.
Dion R. Holm and Thomas M. O'Connor, City Attorneys, McMorris M. Dow and Orville I. Wright, Deputy City Attorneys, John Elmer Barricklo and William F. Bourne for Real Party in Interest and Appellant.
Harold Raines, John B. Reilley and Frank E. Howard as Amici Curiae on behalf of Defendants and Respondents and of Real Party in Interest and Appellant.
Stanley Mosk, Attorney General, Dan Kaufmann, Assistant Attorney General, and Edward P. Hollingshead, Deputy Attorney General, for Defendants and Respondents. *356
STONE, J.
The County of Tuolumne, pursuant to article XIII, section 1, of the California Constitution, assessed appropriative water rights located in that county but owned by the City and County of San Francisco. The assessment was reviewed, equalized and adjusted by the State Board of Equalization. Tuolumne County, dissatisfied with the decision, sought a writ of mandate in the superior court of that county, pursuant to section 1094.5, Code of Civil Procedure, praying that the original assessment be restored. Further, Tuolumne sought a court review of the proceedings had before the Board of Equalization. An alternative writ of mandate was issued and after the matter was heard, the court ordered the alternative writ discharged, the petition for writ of mandate denied, and Tuolumne to correct its assessment rolls in compliance with the decision of the Board of Equalization. Both County of Tuolumne and City and County of San Francisco have appealed from the judgment of the superior court.
San Francisco's filings for the right to appropriate water in Tuolumne County originally were located at various points along streams in the Tuolumne watershed. The water was actually diverted, however, at five locations within the county. At these points of diversion, San Francisco constructed facilities for the storage and release of water, and for the hydroelectric generation of power. For the assessment year 1960-1961 Tuolumne assessed the water rights exercised at each of the five points of diversion, and the following assessments were entered upon the tax rolls of Tuolumne County:
"A. The right to divert water to storage by means of O'Shaughnessy Dam located in the NW 1/4 of Section 16, T1N, R20E, MDB & M."
Tabular Material Omitted
"B. The right to divert water to storage by means of Eleanor Dam located in the NW 1/2 of Section 3, T1N, R19E, MDB & M."
Tabular Material Omitted
"C. The right to divert water to storage by means of Cherry Dam located in the NE 1/4 of Section 5, T1N, R19E, MDB & M."
Tabular Material Omitted
*357
"D. The right to divert water at the intake of Early Intake Powerhouse, known as Lower Cherry Aqueduct, the point of rediversion of waters stored in Eleanor and Cherry Dam and a point of direct diversion for waters accruing to Cherry Creek which includes Eleanor water located within the SW 1/4 of Section 31, T1N, R19E, MDB & M."
Tabular Material Omitted
"E. The right to divert water at the intake of Hetch Hetchy Aqueduct, the point of rediversion of waters stored in Hetch Hetchy Reservoirs and the point of direct diversion from the Tuolumne River located in the NE 1/4 of Section 11, T1N, R18E, MDB & M."
Tabular Material Omitted
San Francisco made timely application to the Board of Equalization for a review of the appropriative water right assessments, as provided in article XIII, section 1, of the Constitution. At the board hearing, San Francisco and Tuolumne introduced evidence by way of testimony and exhibits concerning the location and value of the appropriative water rights. Following the hearing, the board issued its notice of decision, by which it reduced assessments A, B, D, and E to zero, and approved or left unchanged assessment C. Tuolumne then commenced proceedings in the superior court for a review of the board's decision. The superior court approved the decision of the board, and Tuolumne and San Francisco both appealed.
The first question to be determined is whether the appropriative water rights in Tuolumne County owned by San Francisco are taxable under the provisions of article XIII, section 1, of the Constitution. The pertinent part of this section provides:
"... that property ... such as may belong to ... any county, city and county, or municipal corporation within this State shall be exempt from taxation, except such lands and the improvements thereon located outside of the county, city and county or municipal corporation owning the same as were subject to taxation at the time of the acquisition of the same by said county, city and county, or municipal corporation; provided, that no improvements of any character whatever *358 constructed by any county, city and county or municipal corporation shall be subject to taxation. All lands or improvements thereon, belonging to any county, city and county or municipal corporation, not exempt from taxation, shall be assessed by the assessor of the county, city and county or municipal corporation in which said lands or improvements are located, and said assessment shall be subject to review, equalization and adjustment by the State Board of Equalization."
Whether San Francisco's appropriative water rights are taxable rests upon the words "as were subject to taxation at the time of the acquisition of the same by said county." Tuolumne places a construction on article XIII, section 1, which is novel, but since it misconstrues the import of the language just quoted, it is erroneous. It is argued that the purpose of the amendment is to permit taxation of any property acquired by one county in another county which would have fallen into private hands and become taxable had the outside county not acquired it. In its closing brief Tuolumne asserts: "If the water rights had not been taken up by the City, or some other public corporation, they certainly would have been taken and used by private concerns or individuals and would have contributed immeasurably to the tax base of Tuolumne County."
In considering this argument, it is difficult to call to mind any kind of property that wouldn't be "taken up" by private interests if not acquired by a county or some political subdivision. Under Tuolumne's construction of the amendment, all property acquired in one county by another county would be taxable. Such an interpretation leaves the words "as were subject to taxation at the time of the acquisition of the same by said county," absolutely meaningless. Without the quoted language the amendment would subject all foreign-owned county property to taxation. Since the language is clear and unambiguous, Tuolumne's construction of the amendment must be rejected. [1] Only that property which was "subject to taxation at the time" it was acquired comes within the purview of article XIII, section 1. (Emphasis added.)
[2] Turning now to the property assessed, we find that an appropriative water right is considered an interest in real property and taxable by the county in which the right is exercised, that is, the county in which the water is diverted. (Waterford Irr. Dist. v. County of Stanislaus, 102 Cal.App.2d 839 [228 P.2d 341]; North Kern Water Storage Dist. v. *359 County of Kern, 179 Cal.App.2d 268 [3 Cal.Rptr. 636].) Even though water rights are considered real property for tax purposes, the question before us is whether county-owned water rights located within another county are taxable by reason of article XIII, section 1, of the Constitution. Under direction of this amendment the determination must rest upon the nature of the property right at the time it was acquired, that is, whether the right acquired was taxable in the hands of the predecessor of the county.
Analyzing San Francisco's water rights sought to be taxed by Tuolumne in the light of article XIII, section 1, we learn from the record that none had ripened into appropriative water rights when acquired. They were then mere filings for the right to appropriate water. Further, the filings acquired were of three kinds: first, filings made directly by San Francisco acting in its corporate capacity; second, filings made by Mayor Phelan of San Francisco and City Engineer Manson; third, filing rights purchased from one Hall and from Sierra Water Co.
The filings made by San Francisco as a political entity were acquired directly from the State government and without question they are exempt from taxation. Tuolumne contends that the Phelan and Manson filings were private property and subject to taxation at the time of acquisition. [3] However, Phelan and Manson filed, not for themselves, but on behalf of San Francisco; they never asserted ownership in themselves. We have judicial precedent for this assertion in a Supreme Court decision, Meridian, Ltd. v. City & County of San Francisco, 13 Cal.2d 424 [90 P.2d 537, 91 P.2d 105], which delineates the history and the nature of the water rights of San Francisco in Tuolumne County. These are the same water rights we are considering, and at page 432 the court had this to say:
"In 1901 the City and County of San Francisco started a project for the storage and diversion of the waters of the Tuolumne River for the use of the city and other localities adjacent to San Francisco Bay. It has become known as the Hetch Hetchy project and includes reservoirs, power plants and diversion works in the watershed of the Tuolumne River above the Don Pedro reservoir. The first appropriations made in behalf of the city for its project were made by Mayor James D. Phelan on July 29, 1901, for 5,000 inches of the flow of Eleanor Creek below the outlet of Lake Eleanor, and *360 10,000 inches of the flow of the Tuolumne at the outlet of Hetch Hetchy Valley. ... Eighteen notices of appropriation under the state law in force prior to the effective date of the Water Commission Act (December 19, 1914) were posted during the period July 29, 1901, to February 27, 1911, inclusive. These appropriations were posted in the name of the city or one of its representatives, or by William Ham Hall or by Sierra Ditch Water Company. The appropriations made by the last two parties were purchased by the city." (Emphasis added.)
Tuolumne depreciates as dicta the foregoing language from Meridian, suggesting that the Supreme Court did not have before it the precise question which confronts us. Nonetheless, we find the court's reasoning persuasive, and we are content to adopt it as controlling on this issue since it presents a realistic appraisal of the circumstances surrounding the filings by Phelan and Manson. The Board of Equalization and the trial court were correct in holding the water rights derived from the filings made by Phelan, the mayor of the city, and by Manson, the city engineer, to be tax-exempt property within the meaning and intent of article XIII, section 1, of the Constitution.
The third class of appropriative water rights of San Francisco emanate from filings purchased from Hall and Sierra Water Co. The fundamental question is not whether these appropriative filings were, in fact, taxed when acquired by San Francisco from private individuals, but rather, whether they were "subject to taxation." Since these filings were privately owned when purchased by San Francisco they would, at first impression, seem to come within the quoted language. The answer is not so simple as it first appears. San Francisco argues that the water-right filings were conditional, unperfected rights and therefore not subject to taxation. The contention is that a filing for a right to appropriate water is simply a right to "prove up" a water right by constructing a diversion works. San Francisco points out further that a filing has been described by the Supreme Court as an inchoate right. (Madera Irr. Dist. v. All Persons, 47 Cal.2d 681, 691 [306 P.2d 886]; Hutchins, The California Law of Water Rights, p. 160.) But this designation simply relates to the incomplete or unperfected status of the right; it does not purport to define the interest in or the scope of the property right the appropriator acquires by filing. [4] Despite the use of the term "inchoate," California courts have uniformly held that one who files has a possessory interest in real *361 property pending perfection of his right to appropriate water. (Yuba River Power Co. v. Nevada Irr. Dist., 207 Cal. 521, 527 [279 P. 128].) In the case of Inyo Consol. Water Co. v. Jess, 161 Cal. 516 [119 P. 934], it was said, at page 520:
"There is no case, arising prior to the enactment of the code, which holds that the party who thus in good faith began and diligently prosecuted the work on a dam and ditch for the diversion and use of water, could not protect his incipient right to the water, against the hostile diversions and claims of others, by an appropriate suit for that purpose. It is obvious that this could not be so. Such visible act and avowed intent gave him a conditional right to the future use of the water, prior to its actual use, the condition being that he should thereafter diligently continue the work to completion and then divert the water and apply it to a useful purpose, failing which his right would cease. Upon the performance of these conditions, his title to such use would become complete and perfect. In the mean time, however, he had an existing conditional right, manifested by actual visible possession of the works. It would be clearly a property right, and it being incidental and appurtenant to land, it was real property." (See also Merritt v. City of Los Angeles, 162 Cal. 47, 50 [120 P. 1064]; Hutchins, The California Law of Water Rights, p. 161.)
The conclusion that the filer owns a property right even though he has not completed his diversion facilities or perfected his right to actually appropriate water, was also reached by the Supreme Court in Silver Lake etc. Co. v. City of Los Angeles, 176 Cal. 96 [167 P. 697]. Especially germane is the following language discussing the nature of a filing to appropriate water, appearing at page 101 of Silver Lake: "The property right is not dissimilar to that which this court declares belongs to the locator of oil lands, in peaceable and in diligent prosecution of work seeking a discovery of oil, before the discovery is actually made. Such a locator, we have held, has a possessory right which is property, and which he can maintain in the courts against trespassers or hostile private claimants." (Emphasis added.)
The case of Weed v. Snook, 144 Cal. 439 [77 P. 1023], cited in Silver Lake, held also that the right arising from a mining location of oil lands during discovery work but before discovery, is a property right. In the same volume in which Weed v. Snook is reported, we find the case of Bakersfield & Fresno Oil Co. v. County of Kern, 144 Cal. 148 [77 P. 892], *362 holding the possessory interest of a locator upon oil lands in the public domain to be taxable by the County of Kern. [5] Thus the decisions of the Supreme Court, by comparing an appropriative water filing to a filing to prospect for oil and, in turn, holding the filing for oil to be taxable, lead us to the conclusion that the filing rights to appropriate water purchased from Hall and Sierra Water Co. were property rights subject to taxation when purchased by San Francisco.
The early case of People v. Shearer, 30 Cal. 645, discusses the question of whether property interests of private citizens in the public domain are taxable. [6] The rule enunciated in Shearer (1866) holding that privately owned possessory interests in tax exempt property are taxable, is still followed in California. (De Luz Homes, Inc. v. County of San Diego, 45 Cal.2d 546, 562 [290 P.2d 544]; Forster Shipbldg. Co. v. County of Los Angeles, 54 Cal.2d 450, 455 [6 Cal.Rptr. 24, 353 P.2d 736].) The court's reasoning in Shearer is persuasive, and we quote from pages 658-660:
"Had it not been for the stipulation to the contrary in the Act of admission, the United States might have been required to pay taxes on the land owned by it, situate within the limits of California, like any other proprietor of lands; and it appears to us manifest that it was to guard against any such possible claim on the part of the State of California that the provision was inserted in the Act of admission. The General Government sought to protect its own property, its own interests, and not that of the citizens of California. Congress could never have intended by the introduction of the provision under consideration to interfere with the sovereign power of the State of California over its citizens, or over the property of its citizens. This provision can have full effect by confining its operation to an exemption of the property interest of the General Government itself, and it cannot be construed to limit the exercise of a sovereign power of the State over a citizen, or any property of a citizen, unless the intention to so limit it is clearly expressed. Such limitations upon the sovereign powers of a State must be strictly construed. They are not to be extended by doubtful implications beyond the manifest import of the language."
"... The pre-emption right is not the possession, although it may be, and when it exists at all, is based upon a possession. These possessions, as before stated, are recognized and protected as property by the Legislature in many instances, and *363 by the Courts and the people always. And this property is property in the citizen or inhabitant having possession, and not in the United States. This property, so recognized and protected, in our judgment is clearly not exempt from taxation under the clause in the Act of Congress September 9th, 1850, exempting the public domain of the United States from taxation. The public domain of the United States and this species of property of the citizen in the possession of the public lands are in no respect identical. It is only the property interest of the citizen that can be taxed or affected by a tax sale. The title of the Government, the land itself, cannot be affected, nor will any title that may hereafter be derived from the Government be affected."
The distinction between a preemption filing discussed in Shearer and an appropriative water filing lies in the extent of possession. This distinction is simply one of degree which bears upon the value of the property right, rather than upon whether it is taxable.
[7] The history of water development in California reveals that appropriative water right filings have long been recognized as valuable property rights. (Inyo Consol. Water Co. v. Jess, supra, 161 Cal. 516, 520; Merritt v. City of Los Angeles, supra, 162 Cal. 47, 50.) Civil Code section 1414 provides, "[a]s between appropriators, the one first in time is the first in right." (Enacted 1872.) [8] Although the appropriator cannot take water until his diversion facilities are constructed, the priority of his right to take relates back to the date of filing. (City of San Bernardino v. City of Riverside, 186 Cal. 7, 28 [198 P. 784]; State of Arizona v. State of California, 298 U.S. 558 [56 S.Ct. 848, 80 L.Ed. 1331].) Hence under California water law the importance and value of the filing lie in the priority it carries. Any question whether the filings before us were valuable property rights at the time of purchase is dispelled by the record, which reflects that San Francisco paid Hall and Sierra Water Co. $778,967 for them in 1910. [9] This manifest value stemmed from the priority each filing carried and from the fact that a filing is an integral step in securing the right to take water. It is the essential element of appropriation. [10] Thus the law recognizes a filing as a property right which is protected by the courts, a right which must be conveyed with the same dignity as any other interest in land. *364 Furthermore, the conveyance vests in the grantee a priority right to appropriate water.
San Francisco makes the additional argument that since the Hall and Sierra filings were only possessory interests in real property, they became exempt from taxation upon acquisition by San Francisco. This argument is predicated upon Rothman v. County of Los Angeles, 193 Cal.App.2d 522 [14 Cal.Rptr. 427], in which it was held that a lease of real property for a term of years by the County of Los Angeles was a possessory interest in real property, but not land within the meaning of article XIII, section 1, of the Constitution. The Rothman case followed a similar holding in Ohrbach's, Inc. v. County of Los Angeles, 190 Cal.App.2d 575 [12 Cal.Rptr. 132], both cases holding the County's possessory interest as lessee exempt from taxation.
The possessory interests acquired by Los Angeles, as disclosed by the facts of both the Rothman and Ohrbach's cases, are clearly distinguishable from the possessory interests acquired by San Francisco from Hall and Sierra. Los Angeles, as lessee, acquired a temporary right to use real property. On the other hand, San Francisco was conveyed title by deed to appropriative water right filings. [11a] The water rights which emanated from these filings are land in the sense that the word "land" is used in article XIII, section 1. (Waterford Irr. Dist. v. County of Stanislaus, supra, 102 Cal.App.2d 839, 841; Alpaugh Irr. Dist. v. County of Kern, 113 Cal.App.2d 286, 293 [248 P.2d 117]; North Kern Water Storage Dist. v. County of Kern, supra, 179 Cal.App.2d 268, 279.) [12] An interlocutory interest in a water right, that is the filing from which a water right emanates, is likewise an interest in land within the rationale of article XIII, section 1.
Reflection upon the scope of article XIII, section 1, also impels us to reject San Francisco's contention. [13] The purpose of the amendment as presented to the people was to prevent the removal of water rights from the tax rolls of the counties in which the water rights originate. In City and County of San Francisco v. County of Alameda, 5 Cal.2d 243 [54 P.2d 462], the Supreme Court stated, at pages 245-246:
"The undoubted purpose of the amendment was primarily to safeguard the tax revenues of smaller counties wherein large municipal corporations had purchased, or would acquire, *365 extensive holdings and which would, except for the amendment, be exempt from local taxation. With the exemption in force, the serious financial embarrassment of the counties in which the holdings were situated was a reality. The argument sent to the electors of the state when the amendment was proposed also discloses that, unless the amendment be adopted, impending disaster would result to smaller counties by the removal from the local tax rolls of lands and water rights acquired and to be utilized in connection with the acquisition or extension of municipal water supplies such as were then in progress by the City and County of San Francisco and the City of Los Angeles. The adoption of the amendment was evidence that the acquisition of such lands and water rights should be without prejudice to the outlying counties whose existence from an economic and governmental standpoint depended upon the tax revenues derived therefrom. It was therefore provided that such lands and improvements thereon as were taxable at the time of the acquisition of the same by municipalities should continue to be taxable and should not be exempt from local taxation." (Emphasis added.) (See also Rock Creek Water Dist. v. County of Calaveras, 29 Cal.2d 7, 9 [172 P.2d 863].)
[14] San Francisco misapprehends the scope and the object of article XIII, section 1, as presented to the electors and as approved by them. The language "as were subject to taxation at the time of acquisition of the same by said county" refers to the taxable status of the property in the hands of the transferors (Hall and Sierra) and not the transferee (San Francisco). As pointed out by the Supreme Court, the purpose of the amendment was to prevent the removal of private property from the tax rolls upon purchase by an outside county. Thus it is the taxability of the property as it stood at the time of acquisition, and immediately before transfer, that is determinative.
[11b] To summarize, the filings obtained from Hall and Sierra were taxable when acquired; as water rights they are presently land within the meaning of article XIII, section 1, of the Constitution, and taxable. [15] That there was an interval during which San Francisco owned the filings as possessory interests in real property of an inchoate nature does not now place them beyond the purview of article XIII, section 1.
We now turn to the question of the assessment of the appropriative *366 water rights derived from the Hall and Sierra filings. Each county assessor is required by Revenue and Taxation Code, section 401, to assess all taxable property within the county at its full cash value. This includes appropriative water rights. (North Kern Water Storage Dist. v. County of Kern, supra, p. 278.) Full cash value of property has been interpreted to mean its full market value. (De Luz Homes, Inc. v. County of San Diego, supra.) Yet neither by Constitution nor by statute is the assessor directed to follow any particular method in determining full cash value. This is necessarily so because the process of valuing property does not always lend itself to rigid rules and formulas. Writers on the subject, such as Fish (Value of Real Property in California, p. 137) and Bonbright (Valuation of Property, vol. 1, p. 451), tell us that no one method of determining the value of property is completely accurate or infallible, and that most experts utilize more than one method, or a combination of methods. The three methods generally used are (a) sale price between a willing seller and a willing and able buyer, (b) original cost and its correlated replacement cost, and (c) capitalization of income.
The valuation problem facing us is more complex than any illustrations used by the textwriters, or any actual case we have found in the reports. [16] To begin with, the right to appropriate water, although a property right, is purely usufructuary. (Hutchins, Water Rights in California, p. 37; 51 Cal.Jur.2d, Waters, 50, p. 512; Eddy v. Simpson, 3 Cal. 249, 252 [58 Am.Dec. 408].) The appropriator has no property right in the stream of water in its natural channel. In other words, the property right cannot be utilized without diversion facilities because until water is diverted there is no usufruct. [17] Thus the utility of appropriated water depends upon not one but two property interests: diversion structures and the right to appropriate water. Although separate property rights they are integrated and, for practical purposes, inseparable. In this case these reciprocal property rights give rise to a valuation anomaly because the diversion facilities are not taxable. Placing a value on the usufructuary right to divert water separate and apart from the structures which are necessary to divert it, presents a knotty problem which does not admit to an entirely satisfactory solution.
The specialized nature and the cost of San Francisco's five diversion facilities consisting of dams, powerhouses, penstocks, *367 afterbays, conduits and canals, rule out a seller-buyer relationship in the accepted sense. Any attempt to fix a value on the basis of a sale would be completely hypothetical and, of necessity, predicated upon either replacement cost or capitalization of income. The original cost method would be misleading because only filing rights were purchased; which rights have since ripened into full appropriative water rights. Since they must be valued as presently used water rights, original cost gives no indication of present value. Nor does original cost or replacement cost of the diversion improvements help much in determining the full cash value of the water rights from which they must be distinguished. Neither San Francisco nor Tuolumne places any emphasis on replacement cost, and the record in regard to that method of valuation is more confusing than helpful. Fundamentally, both San Francisco and Tuolumne depend upon values derived from variations of the capitalization of income method.
[18a] San Francisco asserts that the Board of Equalization and the trial court erred in approving Tuolumne's method of capitalizing income, principally because Tuolumne capitalized only the diversion facilities within the county, that is, improvements down to the last or lowest point of diversion on the stream. San Francisco contends that its entire distribution system should have been capitalized, pointing out that the Board of Equalization is required to use the "unit system" when valuing public utilities. [19] Under that system an entire public utility system is assessed as an operating unit and value is then allocated to the individual properties for assessment purposes. San Francisco argues that Tuolumne is bound by the unit rule and must capitalize the transportation system which crosses the San Joaquin Valley, and the distribution system on both sides of San Francisco Bay, as well as the property in Tuolumne County. [18b] The board, since it must value intercounty properties owned by public utilities, is required to use the unit system; but nothing has been called to our attention which indicates that the unit system must be followed by a county assessing property within its own boundaries. Tuolumne's failure to use the unit rule, standing alone, is not ground for reversal.
The assessor fixed the value of the water rights by the capitalization method, treating them as an integral part of the entire system located within the county. All structures, including dams, conduits, powerhouses, penstocks and after-bays, *368 down to the lowest diversion point on the stream, were capitalized. Although San Francisco has vigorously attacked this method, the record upon which the board's decision rests does not indicate that the assessment was grossly inaccurate, arbitrary or unfair. The following language from Alpaugh Irr. Dist. v. County of Kern, supra, 113 Cal.App.2d 286, at page 294, is applicable:
"We think no proof was made by appellant that this method of arriving at the value of the water rights would not give a reasonable result. It is obvious that in assessing a water right it might be necessary to adopt a method different from that commonly used in assessing land and it cannot be said as a matter of law that there was anything invalid in the method employed by the assessor."
[20] Nor did the board err by not using the unit rule in reviewing the Tuolumne assessments. The function of the Board of Equalization here was not to make an original valuation of the water rights, but to review Tuolumne's valuation of them. The board was not free to disregard Tuolumne's assessment; rather its duty was to review, equalize and adjust the assessment. Therefore the unit rule which the board must follow in valuing public utility properties in the first instance does not apply when it is acting as a board of review pursuant to article XIII, section 1, of the Constitution.
[21] San Francisco's next objection is that Tuolumne did not use the actual sale price charged by San Francisco for water and power, as the basis for capitalizing income. Tuolumne used a price for water taken from Bureau of Reclamation contracts for the sale of water. For income from the sale of electricity it used the price agreed to be paid by Pacific Gas and Electric Company in one of its contracts to purchase power. Tuolumne's method appears reasonable, considering that San Francisco operates its municipal water and power system for the benefit of its citizens, not as a profit-making business. An expert witness for San Francisco used the nonprofit sale price in capitalizing income, and arrived at a value of zero for all of San Francisco's water rights in Tuolumne County. It would seem incongruous, to say the least, for the board, or for this court, to hold valueless the water rights which are the foundation upon which a multimillion dollar project rests, water rights without which the project would not have been constructed and without which it cannot now operate. We find no error in the board's approval of Tuolumne's *369 use of known market prices for water and power to capitalize income, rather than the price San Francisco actually charges.
[22] The next assessment problem arises from the fact that San Francisco does not use all of its water rights. As previously pointed out, from the tax standpoint San Francisco's water rights fall into three categories. Thus which water rights are used at each point of diversion determines their taxability. San Francisco contends its appropriative water rights should be considered as pooled or, to use its terminology, considered as a cluster of rights all partially used. Tuolumne contends the appropriative water rights at each point of diversion should be considered separately and in sequence according to geographical proximity to the point of diversion. Simply stated, Tuolumne's theory is that the filing nearest the point of diversion should be considered as being first in use; if that water right is insufficient to provide all of the water used at that point of diversion, the next water right in geographical proximity should then be considered, and so on until the total appropriative water rights used have been determined.
The board followed neither San Francisco nor Tuolumne. It considered the appropriative water rights at each point of diversion in order of priority, up to the amount of water used by San Francisco. The board's recognition of water use at each point of diversion according to priority of filing, follows a well established tenet of California water law. Certainly, if adverse claims were made to San Francisco's appropriative water rights, title would be determined on the basis of priority. (Civ. Code, 1414; City of San Bernardino v. City of Riverside, supra, 186 Cal. 7, 28; State of Arizona v. State of California, supra, 298 U.S. 558; Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8, 26 [276 P. 1017].) The board correctly determined that the use of water rights and consequently the assessment at each point of diversion, is determined by order of priority.
Tuolumne argues that the change in the basic method of assessing water rights of San Francisco from geographic proximity to the point of diversion used by Tuolumne, to the priority of water rights at the point of diversion adopted by the board, gives a different result for assessment D. Tuolumne points out that San Francisco has the right to divert and that at times it does divert 190 cubic feet per second at Lower *370 Cherry Aqueduct. This point of diversion appears on assessment roll "parcel D," which assessment was reduced to zero by the board. Tuolumne contends that 90 of the 190 cubic feet derive from filings purchased by Hall and are taxable.
The record is clear that the first filing in priority at this point of diversion was made by Mayor Phelan for 100 cubic feet per second. Since we have heretofore concluded that the filings acquired for San Francisco by the filings of Mayor Phelan are tax-exempt, the first 100 cubic feet per second were correctly assessed at zero. Although there was some testimony that at times the flow released at Lower Cherry reaches 190 cubic feet per second, the testimony does not make clear the source of the additional 90 cubic feet. There is evidence from which it could be inferred that this water derives from the second filing in priority, which was acquired by San Francisco from Hall. There is also evidence, as the board points out, that the additional 90 cubic feet per second consists of water released from an upper dam, which water rights are included in assessment C. Since assessment C was sustained by the board, double taxation would result if the same water were to be taxed again under assessment D.
Furthermore, it appears that much of the flow in excess of 100 cubic feet per second consists of water belonging to irrigation districts located on the lower river and stored on their behalf. Also, some of the water is excess flood water. Since there is substantial evidence to support the findings and the holding of the board as to assessment D, we must reject Tuolumne's contention that 90/190ths of the assessment should stand.
San Francisco also objects to the description of its assessed property. [23a] Tuolumne described the water rights by reference to the points of diversion. San Francisco complains that since its water rights are scattered along the streams, the description does not inform it which of its many appropriative rights are being assessed. The argument overlooks the fact that the water rights are used at the points of diversion, not at the points of filing. [24] A number of California cases hold that for tax purposes the situs of water rights is the place of diversion. These cases are collected and succinctly discussed in North Kern Water Storage Dist. v. County of Kern, 179 Cal.App.2d 268, at page 272 [3 Cal.Rptr. 636]. [23b] San Francisco built dams and created holding reservoirs to impound water for storage and to operate electrical *371 generating plants. This, in turn, required use of the water rights at the diversion points. It should be noted parenthetically that San Francisco had the right to move the point of diversion of each of its several appropriative water rights from the point of filing to the damsite where used. (Perry v. Calkins, 159 Cal. 175, 179 [113 P. 136]; Willits Water & Power Co. v. Landrum, 38 Cal.App. 164, 174 [175 P. 697]; 51 Cal.Jur.2d, Waters, 326, p. 786.) The point of filing is no longer of significance for tax purposes, and since San Francisco established the points of diversion, it should not have been misled by a description of its water rights with reference to each place of diversion.
Furthermore, Tuolumne's original assessment was made on the presupposition that all of San Francisco's water rights were taxable, and it described all of them with relation to the points of diversion. On the other hand, San Francisco contended that none of its water rights were taxable. Therefore the original assessment and San Francisco's objections thereto should not have misled either county. During the board hearing, maps, drawings and other exhibits were received in evidence, which clearly disclosed the points of diversion of all the appropriative water rights owned by San Francisco. These exhibits were fully explained by testimony. As a result of the hearing, the board eliminated all of the water rights assessed by Tuolumne except those used at the point of diversion described by Assessment "C." Certainly, in view of the record before us, it cannot be successfully urged that the description of the water rights which the board found taxable under Assessment "C" is misleading to San Francisco. The circumstances here presented come within the rationale of City & County of San Francisco v. County of San Mateo, 17 Cal.2d 814 [112 P.2d 595], where the court said, at page 819:
"Plaintiff cannot complain that the description of the flume on the assessment rolls is insufficient inasmuch as it has not been misled. It unquestionably knew what property was assessed to it." (See Alpaugh Irr. Dist. v. County of Kern, supra.)
[25] San Francisco also contends the assessment is void because the value used by the county assessor was determined by an engineer. This, it is asserted, makes the assessment that of the engineer and not the assessor. We fail to see anything wrong with this procedure, as a tax assessor could hardly be *372 expected to have more than a superficial knowledge of the value of property so complex as the diversion and hydroelectric power structures here involved. The assessor did the intelligent thing by hiring an engineer who had assessed other works of a similar nature and who was prepared by his education, background and experience to survey the various projects. The engineer gathered data, analyzed and evaluated it, and then determined the value of water rights as an integral part of the tax-exempt diversion improvements. Assessors in metropolitan counties engage the services of experts to assess specialized properties, and we cannot see the distinction San Francisco makes that the specialists in metropolitan counties are regular employees on the payroll of the county assessor, while in this case the Tuolumne assessor hired an "outside" engineer to do the job. San Francisco's argument that the tax assessor was not authorized by law to engage the services of an engineer or that the County of Tuolumne was not authorized to pay an engineer for such services, is immaterial. That question is one between Tuolumne County and the engineer. When the assessor adopted and placed on the assessment rolls the value which resulted from the engineer's work, it became the official act of the assessor and likewise an official record of Tuolumne County.
Even more fundamental is the fact that we are reviewing the action taken by the Board of Equalization pursuant to article XIII, section 1, of the Constitution of California. At this point the manner in which the county assessor arrived at the assessed value of the property has been superseded by the review and equalization decision of the board, which was made after considering evidence on behalf of both San Francisco and Tuolumne. [26] The procedure involved and the position of a reviewing court is succinctly stated in De Luz Homes, Inc. v. County of San Diego, supra, 45 Cal.2d 546, 564, as follows:
"The assessing authority's estimate of the value of specific property at a specific time is reviewed by the board of equalization at the request of the taxpayer [citation], and the board's decision in regard to specific valuations and the methods of valuation employed are equivalent to the findings and judgment of a trial court and reviewable only for arbitrariness, abuse of discretion, or failure to follow the standards prescribed by the Legislature."
For reasons hereinbefore elaborated, we believe the record *373 reflects substantial evidence in support of the decision of the Board of Equalization.
[27a] Finally, San Francisco contends that Tuolumne had no authority under the provisions of section 1094.5, Code of Civil Procedure, to seek judicial review of the action of the Board of Equalization. Tuolumne relies upon the case of People v. County of Tulare, 45 Cal.2d 317 [289 P.2d 11]. In that case the Tulare County assessor had assessed the taxable property of the County. The Board of Equalization, after a hearing, directed him to increase the assessed valuation of all taxable property on the tax rolls in accordance with the findings of the board. The County of Tulare filed an action in the superior court seeking a review of the board's order, pursuant to the provisions of section 1094.5, Code of Civil Procedure. The People, through the Attorney General, then petitioned the Supreme Court for a writ of mandate directing the County of Tulare to obey the order of the Board of Equalization. It was the position of the People that the superior court had no authority to review the acts of the Board of Equalization for the reason that it is a constitutional body, statewide in scope, exercising both administrative and quasi-judicial functions. The Supreme Court denied the petition of the People and, in effect, established the right of a county to seek a review of proceedings before the Board of Equalization by instituting appropriate proceedings in the superior court. [28] In the Tulare County case the Supreme Court held as follows, at pages 319- 320:
"The Legislature, in section 1094.5 of the Code of Civil Procedure, has provided an appropriate method of reviewing acts of a statewide administrative and quasi-judicial agency such as the State Board of Equalization. [Citation.] The action of the State Board of Equalization is reviewable in the superior court pursuant to the provisions of section 1094.5 of the Code of Civil Procedure."
[27b] San Francisco attempts to distinguish the Tulare County case by pointing out that a county assessor has no right to seek a court review of an equalization of his assessments by the board of supervisors. This, contends San Francisco, by analogy prohibits the tax assessor of Tuolumne County from appealing to a court for a review of an equalization of his assessment by the Board of Equalization. In its closing brief San Francisco states that "San Francisco sees no difference between allowing the assessor, a county officer charged with *374 the duty of assessing all taxable common property, to mandate the local board of equalization upon the latter's reduction of one of his assessments, and allowing a local board of supervisors, having no direct duty or responsibility in its county, to mandate an agency of the State dealing with matters within its jurisdiction. Both situations concern intra-governmental disputes, and the beneficial interest in each is the same."
The questioned assessments in this case do not present an intragovernmental dispute. Initially it was an intercounty dispute between the City and County of San Francisco and the County of Tuolumne. But more important, the taxing procedure with which we are concerned is singular in that Tuolumne's power to tax in the first instance was specially conferred by article XIII, section 1, of the Constitution of the State of California. This constitutional amendment, which gives the county the right to tax, provides that the assessment shall be subject to review, equalization and adjustment by the State Board of Equalization. Thus there is no analogy to the ordinary county tax procedure. We think this case comes within the rationale of People v. County of Tulare, supra.
Furthermore, justification of court review of quasi-judicial functions of the board is evidenced by this case. For instance, two principal questions decided by the Board of Equalization related not to valuation but to points of law. The board was required to determine the nature of a filing for an appropriative water right, a purely legal question. Whether Mayor Phelan and Engineer Manson each filed for appropriative water rights on his own behalf or on behalf of the City and County of San Francisco, likewise presented a legal question. Since members of the Board of Equalization are laymen and are elected to office, they may or they may not have had legal training or experience. It strikes us as scarcely debatable that the legal questions presented here and questions of law which are certain to confront the board in the future, should be reviewed by the courts.
The judgment is affirmed.
Conley, P. J., and Brown, J., concurred.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 8, 2009
No. 08-12761 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01094-CV-J-25-TEM
ALBERT STEWARD,
Plaintiff-Appellant,
versus
INTERNATIONAL LONGSHOREMAN'S ASSOCIATION,
Local No. 1408,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 8, 2009)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Albert Steward, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of his union, the International Longshoreman’s
Association (“ILA”), in his action alleging that the ILA breached its duty of fair
representation by failing to refer him to work from its hiring hall. Steward also
challenges the court’s failure to impose sanctions against the ILA for alleged
failures to comply with discovery. Specifically, Steward argues that summary
judgment was erroneous because the court based its decision on misstated facts and
incorrectly considered some of his claims time-barred under 29 U.S.C. § 160(b).1
The record shows that Steward was last employed in July 2004, and that he
filed the present lawsuit on October 20, 2005. Between these two points, he sought
referrals from the ILA, without success. Previously, the district court dismissed his
claims against the ILA, but we reversed on appeal, noting that Steward specifically
alleged a refusal by the ILA to refer him up to the date the complaint was filed.
Steward v. Int'l Longshoremen’s Ass’n., Local No. 1408, 221 Fed. Appx. 894, 896
(11th Cir. 2007) (unpublished) (Steward I). This matter now comes before us
again following entry of summary judgment.
I.
1
On appeal, Steward also moves to supplement his reply brief and for oral argument.
We deny the motion to supplement because the supplemental brief did not add any new
authority. Fed.R.App.P. 28. We also deny Steward’s motion for oral argument because the facts
and legal arguments are adequately presented in the briefs and record and oral argument would
not aid the decisional process. Fed.R.App.P. 34(a)(2)(C).
2
Although the district court did not expressly rule on Steward’s motion to
dismiss ILA’s motion for summary judgment as a discovery sanction, the entry of
a final judgment implicitly denied his pending motion. See Chalwest (Holdings)
Ltd. v. Ellis, 924 F.2d 1011, 1012 (11th Cir. 1991) (holding that an appellant’s
request for an evidentiary hearing was denied sub silentio by the district court's
order of dismissal).
“A [court’s] decision as to whether a party or lawyer’s actions merit
imposition of sanctions is heavily dependent on the court’s firsthand knowledge,
experience, and observation” and is reviewed for abuse of discretion. Harris
v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996). The Federal Rule of Civil
Procedure 37 authorizes sanctions “if a party . . . fails to obey an order to provide
or permit discovery.” Fed.R.Civ.P. 37(b)(2)(C). Sanctions allowed under Rule
37 are intended to: (1) compensate the court and other parties for the added
expense caused by discovery abuses; (2) compel discovery; (3) deter others from
engaging in similar conduct; and (4) penalize the offending party or attorney.
Wouters v. Martin County, Fla., 9 F.3d 924, 933 (11th Cir. 1993).
Having reviewed the record and the briefs of the parties, we discern no error
with respect to the failure to impose sanctions. The record shows that all
depositions and affidavits were filed prior to the court’s determination of the
3
motion for summary judgment. Additionally, Steward did not file a motion to
compel discovery and did not identify any documents as missing from the record.
In light of the record and the district court’s firsthand knowledge of the litigation
disputes, it did not abuse its discretion in failing to impose sanctions on the ILA.
II.
As an initial matter, we note that Steward’s pro se brief is unclear as to the
issues he challenges on appeal. Issues that are not raised on appeal or that are
treated in a perfunctory manner are deemed abandoned . Continental Technical
Services, Inc. v. Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991).
However, pro se briefs and pleadings are liberally construed. Finch v. City of
Vernon, 877 F.2d 1497, 1504 (11th Cir. 1989). We construe Steward’s brief to
first challenge the district court’s finding that any claims related to non-referrals in
the six-month period preceding the commencement of suit - on or before April 19,
2005 - were time-barred under 29 U.S.C. § 160(b).
We review an order granting summary judgment de novo, applying the same
standards as the district court and viewing the evidence in the light most favorable
to the non-moving party. Bost v. Fed. Express Corp., 372 F.3d 1233,
1237-38 (11th Cir. 2004). Summary judgment is appropriate only if “there is no
genuine issue as to any material fact and . . . the moving party is entitled to a
4
judgment as a matter of law.” Id. at 1237 (citation omitted). However, the
non-moving party “may not rest upon the mere allegations or denials” of his
pleadings; instead the party “must set forth specific facts showing that there is a
genuine issue for trial.” Fed.R.Civ.P. 56(e). “A genuine issue of material fact
exists if the jury could return a verdict for the non-moving party.” Bost,
372 F.3d at 1237 (internal quotation and citation omitted).
When a union member sues a union for breaching its duty of fair
representation, the six-month statute of limitations established in § 10(b) of the
National Labor Relations Act (“NLRA”) applies. Hechler v. Int’l Bhd. of
Elec. Workers, 834 F.2d 942, 944 (11th Cir. 1987). In relevant part, that provision
states “[t]hat no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge . . . .”
29 U.S.C. § 160(b). “For the purpose of determining when the § 10(b) period
begins to run, we look to when plaintiffs either were or should have been aware of
the injury itself . . . .” Benson v. Gen. Motors Corp., 716 F.2d 862,
864 (11th Cir. 1983). However, the statute of limitations period is tolled while the
plaintiff pursues internal union remedies. Hester v. Int’l Union of Operating
Eng’rs, 941 F.2d 1574, 1577 (11th Cir. 1991).
When a member alleges repeated injuries, § 10(b) does not bar legal action
5
so long as the “complaint is filed within six months of one such [injury],
notwithstanding the fact that more than six months passed between the earlier
[injuries] and the filing of the charge.” NLRB v. Preston H. Haskell Co.,
616 F.2d 136, 140-41 (5th Cir. 1980). We have explained that “[e]ach [injury]
represents an independent unfair labor practice that does not derive its illegal
character from earlier violations and, as long as one discrete violation occurred
within six months of the filing of charges, legal action is timely.” Id. at 141.
A defendant’s argument that a claim is barred by the statute of limitations
raises an affirmative defense, and “[i]t is beyond dispute that the defendants have
the burden of proof in establishing the elements of the affirmative defense of the
statute of limitations.” Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275,
1292 (11th Cir. 2005) (citation omitted) (considering statute of limitations under
Sarbanes-Oxley Act). The defendants met this burden here and the district court
correctly found that the ILA’s alleged non-referrals prior to April 19th were time-
barred. Steward acknowledged that he was aware that he was not accepted by
Container Maintenance for the April 15th referral position by April 18th.
However, he did not file his complaint until more than six months later on October
20, 2005. Therefore, the district court properly granted summary judgment as to
the alleged non-referrals occurring before April 19th.
6
Steward also challenges the district court’s finding that the ILA did not fail
to represent him fairly with respect to non-referrals occurring after April 19, 2005.
Under federal law, a union can represent a majority of the employees in an
appropriate bargaining unit and act as the exclusive representative of all the
employees in collective bargaining. See Bass v. International Broth. of
Boilermakers, 630 F.2d 1058, 1062 (5th Cir. 1980) (citing 29 U.S.C. §§ 158(b),
159(a)). Because the union acts as agent of all the employees, however, it owes
each of them, whether or not a union member, the duty of fair representation.
Sanderson v. Ford Motor Co., 483 F.2d 102, 109 (5th Cir. 1973). Specifically,
when a union acts as the collective bargaining agent of its members, it is obliged
“to secure the interests of all members without hostility or discrimination toward
any, to exercise its discretion with complete good faith and honesty and to avoid
arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910,
17 L.Ed.2d 842, 850 (1967).
As the Supreme Court noted in Breininger v. Sheet Metal Workers
International Association Local Union No. 6, 493 U.S. 67, 110 S.Ct. 424, 437,
107 L.Ed.2d 388 (1989), a union gains the ability to refer workers for employment
through a hiring hall because of its status as a Board-certified bargaining
representative, but, with this authority, “comes the responsibility to exercise it in a
7
nonarbitrary and nondiscriminatory fashion, because the members of the
bargaining unit have entrusted the union with the task of representing them.” Id.
The Supreme Court continued:
That the particular function of job referral resembles a task that an
employer might perform is of no consequence. The key is that the
union is administering a provision of the contract, something that we
have always held is subject to the duty of fair representation.
Id. “A union’s conduct can be classified as arbitrary only when it is irrational,
when it is without a rational basis or explanation. Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 46, 119 S.Ct. 292, 300, 142 L.Ed.2d 242 (1998). Ultimately, in
order to overcome a union’s motion for summary judgment, the member must
establish that a genuine issue of material fact exists with respect to the union’s
fulfillment of its duty of fair representation. Parker v. Connors Steel Co.,
855 F.2d 1510, 1519-20, (11th Cir. 1988) (affirming summary judgment in favor
of a union that allegedly violated its duty of fair representation in negotiations and
grievance proceedings).
In this case, however, Steward did not offer evidence to show that the ILA
exercised its authority over the hiring hall in an arbitrary or discriminatory fashion.
With respect to the non-referrals occurring in the six months prior to his complaint
filing date, and even assuming arguendo that this would include the alleged April
15th non-referral, the undisputed evidence indicated that the ILA in fact referred
8
Steward, but Steward failed to comply with the referral employer’s permissible
request for a medical clearance for work. It was not arbitrary or capricious for the
ILA to conclude that further referral of Steward to this employer would be futile
until Steward complied with the request. Further, Steward did not identify any
union member with the similar medical clearance issues who was treated
differently by the ILA.
In sum, the ILA provided a rational and nondiscriminatory basis and
explanation for its non-referral of Steward to Container Maintenance of Florida,
and Steward did not set forth facts to show a genuine issue existed with respect to
this fact. Therefore, a genuine issue of material fact with respect to the union’s
fulfillment of its duty of fair representation to Steward did not exist. Accordingly,
we affirm the district court’s grant of summary judgment in favor of the ILA.
AFFIRMED.
9
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603 F.Supp.2d 49 (2009)
John J. FLYNN, et al., Plaintiffs,
v.
John Daniel BERICH, et al., Defendants.
Civil Action No. 08-0588 (PLF).
United States District Court, District of Columbia.
March 25, 2009.
Ira R. Mitzner, Dickstein Shapiro LLP, Washington, DC, for Plaintiffs.
Mary Lou Smith, Howe, Anderson & Steyer, P.C., Washington, DC, Robert R. Miller, Susan M. Schaecher, Stettner Miller, P.C., Denver, CO, for Defendants.
MEMORANDUM OPINION
PAUL L. FRIEDMAN, District Judge.
This matter is before the Court on two separate but largely identical motions to dismiss the complaint pursuant to Rules 12(b)(1), 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, to transfer this case to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1404(a). One motion is submitted on behalf of defendants John and Todd Berich; the other is submitted on behalf of defendant Integrity Equipment Company, Inc. Upon consideration of the motions, plaintiffs' oppositions thereto and defendants' replies, the Court will deny defendants' motions to dismiss without prejudice and transfer this case to the United States District Court for the District of Colorado.
Plaintiffs are the trustees of the Bricklayers & Trowel Trades International Pension Fund (the "Pension Fund"). The Pension Fund is an "employee benefit plan" and a "multiemployer plan" under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001, et seq. ("ERISA"). Defendants John and Todd Berich acted as the controlling owner and principal officer, respectively, of Dan Berich, Inc. ("DBI"), a Colorado corporation that filed for bankruptcy in 2006. Before it filed for bankruptcy, DBI contributed to the Pension Fund for many years pursuant to collective bargaining agreements between DBI and *50 the International Union of Bricklayers and Allied Craftworkers or its affiliates. See Compl. ¶¶ 5, 8. Defendant Integrity Equipment Company, another Colorado corporation, is owned and controlled by defendant Todd Berich. See id. ¶ 7. The Pension Fund alleges that (1) before it filed for bankruptcy, DBI incurred so-called "withdrawal liability" to the Pension Fund; (2) all three of the defendants engaged in transactions designed to evade DBI's withdrawal liability; and thus that (3) the defendants are now liable to the Pension Fund under Sections 1381 and 1392(c) of ERISA. See id. ¶¶ 8-36.[1] Defendants argue that this case should be dismissed or, in the alternative, that it should be transferred to the District of Colorado. Because the Court agrees with the latter argument, it need not address the former argument. See, e.g., Kazenercom TOO v. Turan Petroleum, Inc., 590 F.Supp.2d 153, 157 n. 5 (D.D.C.2008).
I. LEGAL FRAMEWORK
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). ERISA includes a special venue provision applicable to this matter, which provides that "[a]n action . . . may be brought in the district where the plan is administered or where a defendant resides or does business[.]" 29 U.S.C. § 1451(d). Section 1451(d) was intended to make collection actions more "efficient, economical, and inexpensive for ERISA funds" by permitting them to bring such actions in their home districts. Plaintiffs' Opposition to Defendants' Motion to Dismiss Or, In the Alternative, to Transfer at 18. See also Int'l Painters and Allied Trades Indus. Pension Fund v. Tri-State Interiors, Inc., 357 F.Supp.2d 54, 56 (D.D.C.2004). Section 1451(d) was not, however, intended to displace Section 1404(a). See Hanley v. Oman, Inc., 6 F.Supp.2d 778, 779 (N.D.Ill. 1998). Thus, as Judge Revercomb explained:
[In all cases the] moving party bears the burden of showing that venue should be transferred. See Int'l Bhd. of Painters and Allied Trades Union and Industrial Pension Fund v. Best Painting and Sandblasting Co., 621 F.Supp. 906, 907 (D.D.C.1985). In the ERISA context, this burden is greater because [ERISA's special venue provisions] evince[] Congress's intent "to expand, rather than restrict, the ERISA plaintiff's choice of forum." Trustees of the Hotel Employees and Restaurant Employees Internat'l Union Welfare Pension Fund v. Amivest Corp., 733 F.Supp. 1180, 1182 (N.D.Ill.1990). . . . Nevertheless, [ERISA's special venue provisions do] not preclude transfer under the general venue statute of 28 U.S.C. § 1404(a). See Board of Trustees, Sheet Metal Workers National Fund v. Baylor Heating & Air Conditioning, Inc., 702 F.Supp. 1253, 1257 & n. 13 (E.D.Va. 1988).
Int'l Bhd. of Painters and Allied Trades Union and Indus. Pension Fund v. Rose Bros. Home Decorating Ctr., Inc., Civil Action No. 91-1699, 1992 WL 24036, at *2 (D.D.C.1992).
*51 II. DISCUSSION
Venue is undoubtedly proper in the District of Columbia because this is the "district where the [Pension Fund] is administered." 29 U.S.C. § 1451(d). But the case might have been brought in the District of Colorado as well because that is where the defendants reside and do business. See id. The question, therefore, is which venue is more appropriate. To answer this question, the Court "uses its broad discretion to balance case-specific factors related to the public interest of justice and the private interests of the parties and witnesses." Aftab v. Gonzalez, Civil Action No. 07-2080, 2009 WL 368660, at *2 (D.D.C. Feb. 17, 2009). Having reviewed the parties' arguments and the relevant case law, and having carefully weighed the interests at stake in light of the circumstances of this case, the Court concludes that this case should be transferred.
Defendants argue, and the Pension Fund acknowledges, that "the only connection the claims in this case have to the District of Columbia is that the District of Columbia is the place the [Pension Fund] is administered." Integrity's Motion to Dismiss Plaintiffs' First Amended Complaint Or, In the Alternative, to Transfer at 11. In contrast, this case has many connections to the District of Colorado. For example:
Dan Berich and Todd Berich are residents of the State of Colorado. Dan Berich was the president and chief executive officer of DBI, which maintained offices and conducted business in the State of Colorado. Todd Berich is a former officer of DBI. DBI was signatory to collective bargaining agreements with Local # 7 of the International Union of Bricklayers and Allied Craftworkers ("Union") until 2003[.] Local # 7 is located in the State of Colorado. The transactions complained of are alleged to have occurred in Colorado. The facts that would determine whether piercing the corporate veil is justified in this case would come from witnesses and evidence located in Colorado.
It can reasonably be inferred . . . that most, if not all, of the witnesses . . . reside in Colorado and that most of the exhibits related to the claims will be found there as well. . . . Key Bank, alleged in plaintiffs' Amended Complaint as the location of DBI's operating account and source of disbursements to Dan and Todd Berich, is located in Colorado.
John and Todd Berich's Motion to Dismiss Plaintiffs' First Amended Complaint Or, In the Alternative, to Transfer at 14-15 (citations to Amended Complaint and exhibits omitted).
Relatedly, and no less importantly, "DBI filed [for] bankruptcy in the United States Bankruptcy Court for the District of Colorado," John and Todd Berich's Motion to Dismiss Plaintiffs' First Amended Complaint Or, In the Alternative, to Transfer at 15, and the Pension Fund has filed a claim in that ongoing action. As the Pension Fund's claims in this case arise fromor at least are closely related tothe Pension Fund's claim in the bankruptcy case, and as the two cases are likely to involve many of the same exhibits and witnesses, it would be far more convenient and efficient to conduct them both in Colorado.
Finally, the fact that the Pension Fund has chosen to file a claim against DBI in the United States Bankruptcy Court for the District of Colorado cuts strongly against any suggestion that it would be unduly burdensome to require the Fund to litigate this action in the United States District Court for the District of Colorado.
In sum, given the circumstances identified above, and notwithstanding the *52 heightened deference owed to the Pension Fund's choice of forum under ERISA, the Court concludes that "[f]or the convenience of parties and witnesses, [and] in the interest of justice," this case should be transferred to the District of Colorado. 28 U.S.C. § 1404(a).
An Order consistent with this Memorandum Opinion will issue this same day.
SO ORDERED.
ORDER
For the reasons stated in the Memorandum Opinion issued this same day, it is hereby
ORDERED that the motion to dismiss Plaintiff's first amended complaint by defendants John and Todd Berich [8] is DENIED without prejudice; it is
FURTHER ORDERED that the motion to transfer this case by defendants John and Todd Berich [9] is GRANTED; it is
FURTHER ORDERED that the motion to dismiss plaintiffs' first amended complaint by defendant Integrity Equipment Company, Inc. [15] is DENIED without prejudice; it is
FURTHER ORDERED that the motion to transfer this case by defendant Integrity Equipment Company, Inc. [20] is GRANTED; it is
FURTHER ORDERED that this action shall be TRANSFERRED to the United States District Court for the District of Colorado; it is
FURTHER ORDERED that the Clerk of the Court shall transfer all papers in this proceeding, together with a certified copy of this Order, to the United States District Court for the District of Colorado; and it is
FURTHER ORDERED that the Clerk of this Court shall remove this case from the docket of this Court.
SO ORDERED.
NOTES
[1] Section 1381 provides, in pertinent part, that "[i]f an employer withdraws from a multiemployer plan . . . then the employer is liable to the plan in the amount determined under this part to be the withdrawal liability." 29 U.S.C. § 1381(a). Section 1392(c) provides that "[i]f a principal purpose of any transaction is to evade or avoid liability under this part, this part shall be applied (and liability shall be determined and collected) without regard to such transaction." 29 U.S.C. § 1392(c).
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Case: 19-1578 Document: 38 Page: 1 Filed: 04/20/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH H. MARTIN,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2019-1578
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-17-0341-I-2.
______________________
Decided: April 20, 2020
______________________
JEFFREY H. JACOBSON, Jacobson Law Firm, Tucson,
AZ, for petitioner.
BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.
HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
______________________
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
Case: 19-1578 Document: 38 Page: 2 Filed: 04/20/2020
2 MARTIN v. DHS
PER CURIAM.
Joseph H. Martin appeals a decision from the Merit
Systems Protection Board (“Board”) sustaining Mr. Mar-
tin’s removal from the Department of Homeland Security,
Customs and Border Protection (“DHS” or “agency”). Mr.
Martin was removed for conduct unbecoming a Customs
and Border Protection Officer (“CBPO” or “customs of-
ficer”), lack of candor, and failure to follow a non-disclosure
warning. We affirm.
BACKGROUND
Mr. Martin is a former DHS customs officer and former
chapter president of the National Treasury Employees Un-
ion (“union”). In 2015, the DHS Office of Inspector General
(“OIG”) received complaints from two agency employees,
Ms. Lozoya and Ms. Demara, that, while discussing union
matters off-duty, Mr. Martin made sexually inappropriate
comments to each of them about these employees’ provid-
ing sexual favors to him in exchange for union services.
DHS OIG opened an investigation and interviewed Ms.
Lozoya and Ms. Demara. OIG then recorded, with the con-
sent of Ms. Lozoya and Ms. Demara, Mr. Martin’s tele-
phone conversations with both employees, and made a
video recording of Mr. Martin’s meeting with Ms. Demara
in a hotel room. In the telephone recordings, Mr. Martin
referred to the employees as having an “IOU” list with him;
he discussed spanking them; and he made comments such
as “Who’s your daddy?” and “It’s your daddy.” J.A. 5–6, 10,
12. During the video recording, Mr. Martin referred to one
of his supervisors, Jimmy Tong, with a racial slur.
In the course of its investigation, on November 24,
2015, DHS OIG interviewed Mr. Martin. Despite being
provided with a warning not to disclose investigative infor-
mation, Mr. Martin sent a packet of materials related to
the investigation to Mr. Tong. On February 11, 2016, dur-
ing a second interview with OIG, Mr. Martin repeatedly
stated that he did not “recall” or “remember” whether he
Case: 19-1578 Document: 38 Page: 3 Filed: 04/20/2020
MARTIN v. DHS 3
had made certain sexually suggestive or racially inappro-
priate comments towards employees. J.A. 20–21.
On June 12, 2017, Mr. Martin was removed from his
position for charges of 1) conduct unbecoming a CBPO
(three specifications); 2) lack of candor (two specifications);
and 3) failure to follow a non-disclosure warning (three
specifications). Mr. Martin appealed his removal to the
Board. The Administrative Judge (“AJ”) issued a decision
on November 28, 2018, sustaining three out of the eight
specifications made by the agency and determined that re-
moval was the appropriate penalty. For the first charge of
“conduct unbecoming a CBPO,” the AJ found that although
Mr. Martin made “crass and boorish” comments to Ms.
Lozoya and Ms. Demara, he found that there was no impli-
cation that they should “provide him with sexual favors in
order for him to represent” them in disputes with manage-
ment. J.A 9, 14. The AJ found however that Mr. Martin’s
use of a racial slur regarding his supervisor had “no legiti-
mate purpose” and sustained the charge on that ground.
J.A. 15.
The second charge, “lack of candor” was sustained be-
cause the AJ found that Mr. Martin was attempting to “de-
flect the investigation” in testifying that he did not recall
whether he had made certain sexually suggestive or ra-
cially inappropriate comments towards employees.
J.A. 26. The AJ was persuaded by the fact that “these crass
comments were [Mr. Martin’s] everyday banter” and he
thus “should have remembered making these statements.”
J.A. 26. The AJ was not convinced that medication contrib-
uted to Mr. Martin’s lack of recollection because there was
no “medical testimony” to this effect, and because his an-
swers to other questions were “inconsistent with [Mr. Mar-
tin’s] claims that the medication impacted his memory and
concentration.” J.A. 27.
The AJ sustained the third charge, “[f]ailure to follow
[a] non-disclosure warning,” because Mr. Martin “by
Case: 19-1578 Document: 38 Page: 4 Filed: 04/20/2020
4 MARTIN v. DHS
sending . . . documents to [Mr.] Tong, . . . disclosed investi-
gative information to an individual outside DHS OIG and
not involved in the investigation,” violating the nondisclo-
sure warning. J.A. 31.
The AJ found that the agency did not commit an unfair
labor practice by recording employees while they discussed
union business, finding the recording to be “a proper exer-
cise of management’s rights.” J.A. 36. The AJ noted that
even if a union representative-bargaining unit member
privilege exists in this context, it was waived by Ms. Lozoya
and Ms. Demara when they agreed to the recordings. He
also found that Mr. Martin’s Fourth Amendment rights
were not violated because Ms. Lozoya and Ms. Demara con-
sented to the recordings, and, moreover, that the exclusion-
ary rule “does not apply to administrative proceedings.”
J.A. 38 (quoting Fahrenbacher v. Dep’t of Veterans Affairs,
89 M.S.P.R. 260, ¶ 14, n.5 (M.S.P.B. 2001)). Finding a
nexus between the sustained charges and the efficiency of
the service, the AJ affirmed the agency’s removal of Mr.
Martin from federal service.
Mr. Martin did not petition the Board for review. The
AJ’s decision became the final decision of the Board. Mr.
Martin seeks review directly by this court. We have juris-
diction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must sustain the Board’s decision unless it is: “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). Substantial evidence is “evidence that a
reasonable mind may take as sufficient to establish a con-
clusion.” Grover v. Office of Pers. Mgmt., 828 F.3d 1378,
1383 (Fed. Cir. 2016).
Case: 19-1578 Document: 38 Page: 5 Filed: 04/20/2020
MARTIN v. DHS 5
I
On appeal, Mr. Martin argues that the Board erred in
considering the surveillance evidence gathered during the
OIG investigation. This argument appears to only affect a
single charge supporting Mr. Martin’s removal, that of con-
duct unbecoming a CBPO, which the Board sustained for
Mr. Martin’s use of a racial slur in OIG’s video recording.
We agree with the government that the Board did not err
in considering this material.
First, the fact that Mr. Martin was off-duty is not dis-
positive. We have previously noted that “adverse person-
nel actions may be taken for off-duty conduct if there is a
nexus between the conduct and the ‘efficiency of the ser-
vice.’” King v. Dep’t of Veterans Affairs, 248 F. App’x 192,
194 (Fed. Cir. 2007) (quoting Allred v. Dep’t of Health &
Human Servs., 786 F.2d 1128, 1130 (Fed. Cir. 1986)). We
have found “substantial evidence of a nexus” where “the in-
cident happened at her employer’s facility and involved a
supervisor.” Id. Similarly, here, as the Board noted, “the
misconduct involved a fellow agency employee and in-
volved an agency manager.” J.A. 39. The Board did not err
in considering Mr. Martin’s off-duty conduct.
Second, Mr. Martin urges us to apply the exclusionary
rule to the evidence collected by OIG in this investigation,
because it was “a substantial intrusion upon [Mr. Martin’s]
right to privacy” under the Fourth Amendment. Reply 26.
To the extent that the exclusionary rule applies to the
Board’s proceedings, 1 ten of our sister Circuits have
1 The Supreme Court “ha[s] repeatedly declined to ex-
tend the exclusionary rule to proceedings other than crim-
inal trials.” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S.
357, 363 (1998). The Board has held that “the Supreme
Court’s decisions regarding the application of the exclu-
sionary rule to proceedings other than criminal
Case: 19-1578 Document: 38 Page: 6 Filed: 04/20/2020
6 MARTIN v. DHS
concluded that “government interception of oral communi-
cations [i]s permissible where one party to the conversation
gave prior consent.” Holmes v. Burr, 486 F.2d 55, 56, 58
(9th Cir. 1973). The Board correctly pointed out that Ms.
Lozoya and Ms. Demara both “consented to the recordings”
of Mr. Martin. J.A. 38. The Board’s refusal to apply the
exclusionary rule was not error.
Third, Mr. Martin argues that the Board abused its dis-
cretion in not finding that the OIG committed an unfair la-
bor practice under 5 U.S.C. § 7116(a)(1) when it interfered
with confidential conversations between a union repre-
sentative and a bargaining union member. This court has
not recognized a union representative-bargaining unit
member privilege. To the extent that it exists, however, we
hold that it does not protect union representatives from
charges of misconduct based on discussions with unit mem-
ber employees.
This privilege appears to originate from a decision by
the Federal Labor Relations Authority (“FLRA”) in U.S.
Department of the Treasury Customs Service Washington,
D.C. (Respondent) & Nat’l Treasury Employees Union
(Charging Party), 38 F.L.R.A. 1300 (Jan. 8, 1990). In that
case, the privilege was recognized for the benefit of the em-
ployee: “that the employee be free to make full and frank
disclosure to his or her representative in order that the em-
ployee have adequate advice and a proper defense.” Id. at
1308 (emphasis added). In the few cases that have recog-
nized this privilege, the privilege has been asserted for the
benefit of protecting employee disclosures, not those of the
union representative. See U.S. Dep’t of Justice v. Fed. La-
bor Relations Auth., 39 F.3d 361, 368–69 (D.C. Cir. 1994);
prosecutions do not provide a basis on which to extend the
exclusionary rule to Board proceedings.” Delk v. Dep’t of
Interior, No. DC0752920526-I-1, 1993 WL 190451, at *1
(M.S.P.B. June 3, 1993).
Case: 19-1578 Document: 38 Page: 7 Filed: 04/20/2020
MARTIN v. DHS 7
Bell v. Vill. of Streamwood, 806 F. Supp. 2d 1052, 1058
(N.D. Ill. 2011); Long Beach Naval Shipyard Long Beach,
California (Respondent) & Fed. Emps. Metal Trades Coun-
cil AFL-CIO (Charging Party/union), 44 F.L.R.A. 1021,
1038 (Apr. 29, 1992). The union representative-bargaining
unit member privilege is analogous to the attorney-client
privilege, whose purpose is also to “to encourage full and
frank communication between attorneys and their clients.”
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). And
just as the attorney-client privilege “is that of the client,
not that of the attorney,” Am. Standard Inc. v. Pfizer Inc.,
828 F.2d 734, 745 (Fed. Cir. 1987), if there is a union rep-
resentative-bargaining unit member privilege, it belongs to
the employee and not the union representative. The Board
thus committed no error in holding that Mr. Martin could
not assert the privilege.
II
Mr. Martin additionally argues that the Board’s con-
clusion that the agency proved lack of candor is not sup-
ported by substantial evidence. We disagree.
The Board recognized that “to constitute lack of candor,
a misrepresentation or omission must have been made
knowingly.” J.A. 16. “Although lack of candor necessarily
involves an element of deception, ‘intent to deceive’ is not a
separate element of that offense . . . .” Ludlum v. Dep’t of
Justice, 278 F.3d 1280, 1284–85 (Fed. Cir. 2002). The
charge “may involve a failure to disclose something that, in
the circumstances, should have been disclosed in order to
make the given statement accurate and complete.” Id. at
1284.
The Board’s conclusion that Mr. Martin lacked candor
is supported by substantial evidence. The Board found
that Mr. Martin was not credible in testifying that he does
not recall whether he had made certain sexually suggestive
or racially inappropriate comments towards employees.
The Board considered the fact that “these crass comments
Case: 19-1578 Document: 38 Page: 8 Filed: 04/20/2020
8 MARTIN v. DHS
were [Mr. Martin’s] everyday banter” and he thus “should
have remembered making these statements.” J.A. 26. The
Board explained that Mr. Martin “had a duty to candidly
admit that he used such language, then offer an explana-
tion” and found that “[h]e elected not to do that
and . . . that he did so to deflect the investigation.” Id. (em-
phasis added).
Mr. Martin also faults the Board for not considering the
fact that he was on medication (Bumetanide) that allegedly
could cause memory loss in assessing the lack of candor
charge. The Board, however, concluded that “[t]here does
not appear to be a consensus that Bumetanide tablets im-
pact memory and concentration.” 2 J.A. 27. The record only
shows that “trouble concentrating, confusion, [and]
memory loss” may be possible side effects of this medica-
tion for “people with liver disease,” which Mr. Martin ad-
mits he does not have. J.A. 27 (quoting print out from
Healthline.com). Moreover, the Board considered the fact
that “when the entire transcript of the interview is re-
viewed, there is no other portion where the appellant re-
sponds in this manner, which I find is inconsistent with his
claims that the medication impacted his memory and con-
centration.” J.A. 27. The Board thus properly considered
Mr. Martin’s arguments, and its findings are supported by
substantial evidence.
Finally, Mr. Martin argues that the agency did not clar-
ify which portion of the interview it was referring to in the
specification of the charge and that the Board substituted
its own basis for removal, rather than relying on what was
identified by the agency. He also argues that the Board
“abused [its] discretion by exceeding the scope of the
2 Contrary to Mr. Martin’s argument, the Board was
not improperly shifting the burden of proof to Mr. Martin.
Instead, the Board simply found that Mr. Martin did not
make a sufficient showing that his memory was impaired.
Case: 19-1578 Document: 38 Page: 9 Filed: 04/20/2020
MARTIN v. DHS 9
proposed removal letter” in comparing Mr. Martin’s an-
swers during the interview to those of his sworn statement.
Appellant’s Br. 17. Neither argument is persuasive.
The charge specified the topic of the questions and de-
scribed Mr. Martin’s response to them:
[D]uring an interview with Special Agents of the,
[sic] DHS, OIG, you stated either “I don’t recall” or
“I don’t remember”, or words to that effect, to ap-
proximately ten (10) questions in a row asking
whether you had committed certain specific acts in
which you insinuated an employee must provide
you sexual favors for your performance of union
work on their behalf.
J.A. 20–21. Mr. Martin even admitted that he understood
which portion of the interview the charge referred to. The
Board thus did not substitute its own reasons for removal
for those provided by the agency.
The Board also did not rely on Mr. Martin’s sworn
statement to uphold the charge. The Board simply consid-
ered the number of different excuses Mr. Martin provided
for his evasive answers as supporting its findings that Mr.
Martin was not credible. Substantial evidence supports
the Board’s finding that Mr. Martin lacked candor in an-
swering certain questions during his second OIG interview.
Mr. Martin’s other arguments have been considered,
and we conclude that they likewise lack merit.
AFFIRMED
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132 F.3d 1349
55 Soc.Sec.Rep.Ser. 15, Unempl.Ins.Rep. (CCH) P 15818BTimothy R. HINKLE, Plaintiff-Appellant,v.Kenneth S. APFEL, Commissioner, Social SecurityAdministration,1 Defendant-Appellee.
No. 97-6099.
United States Court of Appeals,Tenth Circuit.
Dec. 24, 1997.
James Harris of Ray Bays & Associates, Oklahoma City, OK, for Plaintiff-Appellant.
Patrick J. Ryan, United States Attorney, Oklahoma City, OK, Frank V. Smith III, Acting Chief Counsel, Region VI, and Linda H. Greene, Assistant Regional Counsel, Office of the General Counsel, U.S. Social Security Administration, Dallas, TX, for Defendant-Appellee.
Before KELLY, McKAY and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
1
Plaintiff Timothy R. Hinkle appeals from an order of the district court affirming the Commissioner's determination that he is not entitled to disability benefits.2 We affirm.
2
We review the Commissioner's decision to determine whether his factual findings were supported by substantial evidence in light of the entire record and to determine whether he applied the correct legal standards. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotations omitted). In the course of our review, we may "neither reweigh the evidence nor substitute our judgment for that of the agency." Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991).
3
Mr. Hinkle alleged disability due to a mental impairment. He also asserted that he has disabling chronic scoliosis of the thoracic spine, chronic myofascitis of the right shoulder, mood or anxiety disorder, and possibly developmental dysphasia. The administrative law judge (ALJ) determined that Mr. Hinkle did not meet listing 12.05C, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, at step three of the five-step sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). The ALJ further held at step four that Mr. Hinkle was not disabled because he could perform his past relevant work of a fast food worker.
4
On appeal, Mr. Hinkle argues he meets § 12.05C. Listing 12.05C requires "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." The parties agree Mr. Hinkle's performance IQ of 68 meets the first prong of § 12.05C.3 See id. § 12.00D (lowest valid IQ score is used for § 12.05). Thus, the issue before this court is whether Mr. Hinkle meets the second prong of § 12.05C by having any other impairments imposing significant work-related limitations of function.
5
Mr. Hinkle argues that because the ALJ found that he could only perform light to medium work, the ALJ impliedly held that Mr. Hinkle had a significant impairment which met the second prong. Mr. Hinkle urges us to hold that a finding that a claimant cannot perform "heavy or very heavy work due to a medically determinable impairment" meets the second prong of § 12.05C. Appellant's Br. at 25. We decline to adopt this standard.
6
The second prong of § 12.05C requires that the claimant have "a physical or other mental impairment imposing additional and significant work-related limitation of function." The regulations do not define "significant," but courts have held that a "significant limitation" of function for purposes of § 12.05C, is one that has more than a slight or minimal effect on the claimant's ability to perform basic work. See Warren v. Shalala, 29 F.3d 1287, 1291 (8th Cir.1994) (and cases cited therein). The second prong limitation "need not be disabling in and of itself." Branham v. Heckler, 775 F.2d 1271, 1273 (4th Cir.1985).
7
"[T]he purpose of § 12.05C is to compensate a claimant with an IQ in the 60-70 range and a limitation of function that affects his work." Sird v. Chater, 105 F.3d 401, 403 n. 6 (8th Cir.1997). Some courts have held that the § 12.05C limitation is significant if the claimant suffers from a severe physical or other mental impairment, as defined at step two of the disability analysis, apart from the decreased intellectual function. See Edwards v. Heckler, 736 F.2d 625, 629-31 (11th Cir.1984); Nieves v. Secretary of Health & Human Servs., 775 F.2d 12, 14 & n. 7 (1st Cir.1985); but see Edwards ex rel. Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir.1985) (clarifying that 'significant' requires something less than 'severe' as defined in § 404.1520(c) (step two)). Other courts have concluded that the second prong is met when the claimant cannot perform his past relevant work. See Flowers v. United States Dep't of Health & Human Servs., 904 F.2d 211, 214 (4th Cir.1990) (citing Branham, 775 F.2d at 1273); Mowery v. Heckler, 771 F.2d 966, 972 (6th Cir.1985). We conclude the analysis employed by the First and Eleventh Circuits is the better interpretation of what must be shown to satisfy the second prong of § 12.05C.
8
At step two, the ALJ is to determine whether the claimant has an "impairment or combination of impairments which significantly limits [his] ... ability to do basic work activities." 20 C.F.R. § 404.1520(c). We have said that this step requires a "de minimis" showing of impairment. See Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir.1997)(citing Williams, 844 F.2d at 751). However, the claimant must show more than the mere presence of a condition or ailment. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987)(step two designed to identify "at an early stage" claimants with such slight impairments they would be unlikely to be found disabled even if age, education, and experience were considered).
9
Presumptively, if the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities, irrespective of vocational factors, the impairments do not prevent the claimant from engaging in substantial gainful activity.
10
Williams, 844 F.2d at 751. Thus, at step two, the ALJ looks at the claimant's impairment or combination of impairments only and determines the impact the impairment would have on his ability to work.
11
At step four, the ALJ engages in a comparative assessment of the claimant's residual functional capacity and the demands of the work the claimant has done in the past to determine whether the claimant can do his past relevant work. See 20 C.F.R. § 1520(e); see also Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir.1993). The ALJ looks only at "those work demands which have a bearing on the [claimant's] medically established limitations." Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir.1996)(quotation omitted). Thus, step four requires a more detailed analysis of the claimant's impairments than is required at step two as the ALJ must specifically analyze the impact the impairments have on the claimant's ability to do the work he has previously done.
12
Upon review of the standards governing steps two and four, we conclude that a decision regarding whether a claimant has a § 12.05C "significant limitation" should "closely parallel" the step two standard,4 and is to be made without consideration of whether the claimant can perform any gainful activity beyond the analysis as made at step two. See Fanning v. Bowen, 827 F.2d 631, 634 (9th Cir.1987) (if claimant meets the § 12.05C listing and the durational requirement, see 42 U.S.C. § 1382c(a)(3)(A), "he must be found disabled without consideration of his age, education, and work experience," citing 20 C.F.R. § 404.1520(d)). Thus, a claimant's physical impairment need not be independently disabling to meet the second prong of § 12.05C. Such a requirement would result in a meaningless second prong. See Sird, 105 F.3d at 403 & n. 6. "[S]omething less than a preclusion from any substantial gainful employment must apply." Id. at 403 (quotation omitted).
13
We now examine Mr. Hinkle's claims under this standard. The medical evidence showed that Mr. Hinkle has been diagnosed with chronic myofascitis which is minimally disabling. His physician opined that he was only restricted from "heavy manual labor or a great deal of overhead work with the right upper extremity." Appellant's App. at 145.
14
While Mr. Hinkle has back problems, they have not resulted in a significant limitation. Mr. Hinkle has a fair tolerance for standing and walking with a poor tolerance for bending and lifting. See id. at 147. One physician noted that he had no restriction of movement and his scoliosis was "almost imperceptible." Id. at 149. Another physician found no scoliosis, muscle wasting or spasm, deficits, decreased range of motion or tenderness. See id at 159.
15
Mr. Hinkle testified that his physical disabilities prevent him from bending over, gripping with his hand, and holding his arm up very long. He can drive. He can sit, but is stiff when he gets up, he can stand ten minutes and walk two blocks. He watches TV most of the time. He takes no medications for pain.
16
The ALJ found that Mr. Hinkle's impairments, singly or in combination did not have the relevant abnormal findings needed to meet the second prong of § 12.05C. The ALJ noted that no objective tests revealed functional restrictions necessary "to support a degree of pain or other symptom that might be considered disabling." Id. at 16. Our review of the record supports the ALJ's finding. Further, the record contains no information to support a finding that Mr. Hinkle's physical condition has deteriorated since he last worked.5 Cf. 20 C.F.R. § 404.1520(b) (claimant who is performing substantial gainful activity is not disabled regardless of medical condition). Neither do Mr. Hinkle's impairments in combination meet the second prong of § 12.05C. See, e.g., Davis v. Shalala, 985 F.2d 528, 532 (11th Cir.1993) (regulations require consideration of claimant's impairments in combination at steps two and three and the second prong of § 12.05C).
17
The judgment of the district court is AFFIRMED.
1
Pursuant to Fed. R.App. P. 43(c), Kenneth S. Apfel is substituted for John J. Callahan, former Acting Commissioner of Social Security, as the defendant in this action
2
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. 34.1.9. The case is therefore ordered submitted without oral argument
3
As the Commissioner agrees that Mr. Hinkle meets the first prong of § 12.05C, we need not address Mr. Hinkle's argument regarding whether the ALJ rejected this result as invalid based on the examiner's statement that the low score may have been artificially deflated by a mood or anxiety disorder rather than showing the result of a permanent decline in intellectual functioning. See Brown v. Secretary of Health & Human Servs., 948 F.2d 268, 269 (6th Cir.1991) (regulations do not limit question of validity to test results isolated from other factors)
4
Needless to say, a claimant's inability to perform his past relevant work would meet the second prong of § 12.05C. We hold only that the analysis the ALJ engages in should parallel step two of the five-step analysis and, thus, does not require a finding that the claimant cannot perform his past relevant work
5
We do not address or concern ourselves with any deterioration of mental abilities as § 12.05C requires a "subaverage general intellectual functioning ... initially manifested during the developmental period (before age 22)." Id. § 12.05. Mr. Hinkle does not claim any mental impairment not related to his intellectual functioning which might meet the second prong of § 12.05C and would, therefore, be subject to deterioration concerns
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970 So.2d 841 (2007)
SMITH
v.
STATE.
No. 3D07-2561.
District Court of Appeal of Florida, Third District.
December 12, 2007.
Decision without published opinion. Mand. denied.
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564 So.2d 209 (1990)
BURGER KING CORPORATION, Appellant,
v.
Linda KOEPPEL, Individually and As Personal Representative of the Estate of Robert S. Koeppel, Appellees.
No. 90-388.
District Court of Appeal of Florida, Third District.
July 10, 1990.
Marlow, Shofi, Connell, Valerius, Abrams, Lowe & Adler and Joseph H. Lowe, Miami, for appellant.
Jack L. Herskowitz, Miami, for appellees.
Before SCHWARTZ, C.J., and LEVY and GERSTEN, JJ.
LEVY, Judge.
Appellant, who was the defendant below in a wrongful death action, appeals the denial of its motion to dismiss or, in the alternative, to transfer venue. As far as the motion to dismiss is concerned, we affirm *210 the trial court's denial of that motion. However, for the reasons discussed below, we reverse the denial of the motion to transfer.
Appellee, who was the plaintiff below and is a Broward County Resident, filed her wrongful death action in adjacent Dade County against Burger King, a Florida corporation, based upon a death at a Pembroke Pines, Broward County, Burger King restaurant. The complaint contained no allegations regarding where defendant maintained its principal place of business. Defendant moved under Section 47.051, Florida statutes (1989), to dismiss on this ground or, alternatively, under Section 47.122, Florida Statutes (1989), to transfer venue to Broward County. In support of its motion to transfer, defense counsel submitted the Pembroke Pines police report which showed that, of the more than twenty individuals named in the report, only one was a Dade resident, while the rest resided in Broward. The police department which investigated the death, other police departments and rescue squads listed in the report, and the hospital where the deceased was taken are all located in Broward County. At the hearing on the motion, plaintiff attempted to moot the motion to dismiss by agreeing to amend her complaint to allege that defendant's principal place of business was Dade County. The court denied the motion to transfer venue. This appeal follows.
Venue in this case was properly laid, initially, in Dade County under Section 47.051 because the defendant is a domestic corporation with a Dade County office where it transacts its customary business. Section 47.122, however, provides that "[f]or the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought." The decision to transfer venue based upon Section 47.122 is one which is within the sound discretion of the court, and the party contesting the choice of venue must show an abuse of this discretion in order to successfully challenge the court's determination. McMichael v. Harris, 127 Fla. 861, 174 So. 323 (Fla. 1937); Florida Patient's Compensation Fund v. Florida Physicians' Ins. Reciprocal, 507 So.2d 778 (Fla. 3d DCA 1987); Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983); Hughes Supply, Inc. v. Pearl, 403 So.2d 614 (Fla. 4th DCA 1981); Hertz Corp. v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); see Braun v. Stafford, 529 So.2d 735 (Fla. 4th DCA 1988); see also Della-Donna v. Gore Newspaper Co., 390 So.2d 87 (Fla. 3d DCA 1980); Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978).
In the instant case, inasmuch as the death occurred in Broward County, the plaintiff and twenty of the twenty-one witnesses reside in Broward County, and almost all the contacts (certainly all the important contacts) occurred in Broward County, we find that the trial court abused its discretion in denying the motion to change venue to Broward County, where the action could have been filed originally. See Braun v. Stafford, 529 So.2d 735 (on closely analogous facts); Hughes Supply, Inc. v. Pearl, 403 So.2d 614; Kelly-Spring-field Tire Co. v. Moore, 355 So.2d at 451; Hertz Corp. v. Rentz, 326 So.2d 216 (on closely analogous facts). The only apparent contacts which Dade County has with this case is that defendant maintains an office here. This single contact with Dade County, standing alone, is indeed minimal, and appears to be even more so when contrasted with the Broward County contacts. Clearly, transfer of this matter to Broward County best serves the convenience of the witnesses, as well as the plaintiff, under Section 47.122, with only a slight possible inconvenience to defendant. Obviously, by filing the motion to transfer venue, the defendant is waiving any possible inconvenience that might be experienced by its one witness that will have to travel to Broward County for any future proceedings. Thus, the trial court erred in denying the defendant's motion to transfer the case to Broward County.
As to plaintiff's argument that the death in Pembroke Pines occurred at a point midway between the Dade and Broward County courthouses, and that, accordingly, the Dade County courthouse was as convenient for the witnesses as was the Broward *211 courthouse, assuming arguendo that the courthouses are equidistant from this point, we would call plaintiff's attention to Della-Donna v. Gore Newspaper Co., 390 So.2d 87, wherein this court found no abuse of discretion in the trial court's transfer to Broward County of a defamation action brought against the publisher of a Broward newspaper and a Broward radio commentator. There, the alleged wrongs were committed, and the predominant adverse impact of those wrongs took place, in Broward County. In a footnote to Della-Donna's citation of Bassett v. Talquin Electric Cooperative, Inc., 362 So.2d 357 (Fla. 1st DCA 1978), this court said:
We read the Bassett opinion as one which simply determines that the movant failed to make the required showing that a transfer was appropriate "for the convenience of the parties or witnesses or in the interest of justice." § 47.122. If, however, it holds that § 47.122 may not be utilized to deprive the plaintiff of his choice of forum if the transferor and transferee counties are adjacent and are connected by convenient means of transportation, we simply disagree with that conclusion. Banachowski v. Atlantic Refining Co., 84 F. Supp. 444 (S.D.N.Y. 1949) ("[I]f we were to so hold residents of Jersey City, Hoboken and neighbouring cities would all find it more convenient to sue in this court [in Manhattan] instead of in the District Court of New Jersey.") Accord, Haase v. Mallenkrodt, Inc., 415 F. Supp. 889 (S.D.N.Y. 1976) (transfer from Manhattan to Jersey City appropriate); Bridgeman v. Bradshaw, 405 F. Supp. 1004 (D.S.C. 1975).
Della-Donna v. Gore Newspaper Co., 390 So.2d at 87-88, n. 2.
Accordingly, the order on appeal is reversed and this case is remanded with instructions to grant the defendant's motion to transfer venue to Broward County.
Reversed and remanded with instructions.
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NO. 07-04-0105-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 28, 2005
______________________________
JASON COOK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-404,582; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Jason Cook, was convicted of possessing methamphetamine with intent
to deliver in an amount of less than 200 grams but at least four grams. In one issue, he
argues that the trial court erred in failing to grant his motion to suppress. We affirm the
judgment of the trial court.
On June 27, 2003, around 11:00 p.m., Craig Campbell called police because he had
observed a vehicle drive slowly down his street, run up onto the curb, return to the street
and stop with the engine running. Chief Rick Scott, who initially answered the call,
approached the vehicle, which was facing the wrong way in front of a residence, and saw
appellant asleep in the driver's seat with an open can of beer between his legs. After
appellant had awakened and exited the car, Officer James Baucum conducted field
sobriety tests and administered a breath test; none supported the inference that appellant
was intoxicated due to the ingestion of alcohol. However, appellant admitted to the officers
that he had drunk alcohol and smoked marijuana. There were also track marks on his
arms, and he exhibited signs of extreme fatigue. This caused Baucum, a drug recognition
expert, to believe that appellant was coming down from the use of a drug such as cocaine
or methamphetamine. Baucum then asked for consent to search the vehicle, which
appellant granted. Methamphetamine, $20 bills, and small ziploc bags were subsequently
discovered in it.
Appellant contends that his detention was unreasonable because the officer 1) no
longer believed he (appellant) was under the influence of alcohol at the time he requested
permission to search and 2) had no other reasonable suspicion upon which to investigate
further. The trial court manifested its disagreement with the allegations by denying
appellant's motion to suppress. We review the latter decision under the standard
announced in Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) and Guzman v.
State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Furthermore, it requires us to give almost
total deference to the trial court's findings of historical fact and review de novo the
application of the law to the facts. Johnson v. State, 68 S.W.3d at 652-53.
We have held that an officer may ask a driver if he possesses illegal contraband and
solicit voluntary consent to search even after an officer's suspicions which justified an initial
investigative detention have been allayed. Robledo v. State, No. 07-04-0561-CR, 2005
Tex. App. lexis 7691 at *4 (Tex. App.-Amarillo September 14, 2005, no pet. h.); Strauss
v. State, 121 S.W.3d 486, 491 (Tex. App.-Amarillo 2003, pet. ref'd). Requesting such
consent is not an unlawful seizure, and neither probable cause nor reasonable suspicion
is required for the officer to ask. James v. State, 102 S.W.3d 162, 173 (Tex. App.-Fort
Worth 2003, pet. ref'd). Indeed, the fact that a detainee is no longer suspected of driving
while intoxicated due to the ingestion of alcohol does not prevent the officer from making
the request as long as the officer does not convey a message that compliance is required.
Brown v. State, 890 S.W.2d 546, 548 (Tex. App.-Beaumont 1994, no pet.). And, if
consent is withheld, then further detention of either the suspect or chattel is improper
without specific articulable facts which provide the officer reason to believe that the
detainee engaged in, or is engaging in, or soon will engage in criminal activity. Strauss v.
State, 121 S.W.3d at 491-92.
At the suppression hearing here, Baucum testified that appellant's performance on
the field sobriety tests and the breath test gave no clues that appellant was intoxicated on
a depressant (including alcohol), inhalant, or PCP. He also said to Scott that "I have got
nothing on this suspect." Baucum described his comment as referring to the presence of
those three drugs. However, he believed that appellant's behavior was abnormal for a
sober person. So, the officer decided to continue his investigation and ask for consent to
search the vehicle.
Given our decision in Robledo, the officer did not transgress constitutional
prohibition by asking for consent to search, irrespective of whether articulable facts
indicative of criminal activity appears of record. Nonetheless, such facts actually exist in
the form of appellant's careless driving, extreme fatigue (including his falling asleep while
the motor of his car was running), droopy eyes, track marks, possession of an open beer
container, admission of having smoked marijuana and drunk alcohol and the officer's
training and experience which indicated that appellant was on the down side of a
methamphetamine trip. So, the continued temporary detention was justified. Compare
Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (wherein the court determined
that the purpose of the stop had been effectuated when the defendant explained that he
was not intoxicated but merely tired and no odor of alcohol or drugs emanated from his
person or vehicle).
Accordingly, we overrule appellant's issue and affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
cient to support the judgment entered.
Standard of Review
Findings of fact in a case tried to the court have the same force and dignity as a
jury’s verdict upon jury questions. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). When a non-jury trial is conducted with a court reporter, these findings are
reviewed for legal and factual sufficiency of the evidence the same as jury findings. See
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).
Under the legal sufficiency standard, we must credit evidence that supports the
judgment if a reasonable fact finder could, and we must disregard contrary evidence unless
a reasonable fact finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005). If the evidence falls within the zone of reasonable disagreement, we may not
invade the fact finder’s role. See Id. at 822. The fact finder alone determines the credibility
of the witnesses, the weight to give their testimony, and whether to accept or reject all or
part of that testimony. See Id. at 819. Unless there is no favorable evidence to support
the challenged finding or if contrary evidence renders supporting evidence incompetent or
conclusively establishes the opposite of the finding, we must affirm. See Id. at 810-11.
In considering the factual sufficiency of the evidence, we must examine the whole
record to determine whether the evidence supports the finding of the fact finder. See
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003). The mere
fact that we might have reached a different conclusion on the facts does not authorize us
to substitute our judgment for that of the fact finder. See Richmond Condominiums v.
Skipworth Commercial Plumbing, Inc., 245 S.W.3d 646, 658 (Tex.App.–Fort Worth 2008,
no pet.).
Analysis
By her petition for declaratory relief, Mangum was requesting a judicial declaration
that she had an implied easement by necessity across the property of Penney. To be
entitled to an implied easement by necessity Mangrum had to prove three elements: 1)
unity of ownership prior to severance, 2) access must be a necessity and not a mere
convenience, and 3) the necessity must exist at the time of severance of the dominant and
servient estates. See Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984). In her
appeal, Penney is not challenging the first element. Accordingly, we must examine the
evidence regarding the second and third elements.
The record contains a survey of the entire 1.97 acres. This survey reflects that FM
1187 is the only designated public road or highway that connects to the subject property.
In addition, an aerial photograph of the entire 7.97 acre tract was introduced into evidence.
This photograph showed two possible roads that appeared to dead end on the west
property line of the 1.97 acre and five acre tracts. Further testimony was introduced that
indicated that these roads were part of a private development and were not dedicated to
the use by the general public. Therefore, the only apparent access to the property was
from FM 1187 on the north side of Penney’s property. Further, Mangum testified to this
fact during the presentation of her case. Penney argues that she has never denied
Mangum access. According to Penney, this defeats the necessity of access at the time
of severance. However, Penney misunderstands the element. The fact that she has not
heretofore denied access is not the controlling issue. Her licensing permissive use does
not defeat the necessity of the easement. See Bains v. Parker, 143 Tex. 57, 182 S.W.2d
397, 399 (1944). The record clearly shows that at the time of severance the only access
to Mangum’s property was from FM 1187. Further, as the only access, access from FM
1187 is not just a matter of convenience but rather of necessity. Under this state of the
record we cannot say that there is no favorable evidence supporting the trial court’s
judgment, and neither can we say that contrary evidence renders supporting evidence
incompetent or conclusively establishes the opposite of the finding. See City of Keller, 168
S.W.3d at 822. Therefore, we must overrule Penney’s legal sufficiency issue.
When we review the entire record under the standard of review for factual
sufficiency, we come to the same conclusion. The evidence is factually sufficient to
support the judgment. See Golden Eagle Archery, Inc., 116 S.W.3d at 761-62. We
therefore, overrule Penney’s issue regarding factual sufficiency.
Conclusion
Having overruled Penney’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-30733
Conference Calendar
EUGENE JARROW, On behalf of his minor Children, Dejuane
Walker, Eugene Walker, Dephen Walker,
Plaintiff-Appellant,
versus
EDDIE J. JORDAN, JR., District Attorney for Orleans Parish;
CALVIN JOHNSON, Judge, Orleans Criminal District Court;
HARRY CONNICK, Ex-District Attorney for Orleans Parish;
MICHAEL CAPDEBOSCQ, Assistant District Attorney; DONNA R.
ANDRIEU, Assistant District Attorney; MICHAEL VITT, Attorney
at Law,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-3120
--------------------
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Eugene Jarrow, Louisiana prisoner # 89912, appeals the
dismissal of his 42 U.S.C. § 1983 and 28 U.S.C. § 2254 claims,
which alleged that the defendants conspired to violate Jarrow’s
civil rights by seeking to retry his 1979 armed robbery charge
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-30733
-2-
after it was determined in 2003 that his original guilty plea was
invalid pursuant to Boykin v. Alabama, 395 U.S. 238 (1969).
Applying the de novo standard of review, we affirm the
dismissal of Jarrow’s § 1983 claims against Judge Calvin Johnson
and the district and assistant district attorneys on grounds of
absolute judicial and prosecutorial immunity. See Dennis v.
Sparks, 449 U.S. 24, 27 (1980); Imbler v. Pachtman, 424 U.S. 409,
427-28 (1976). We also affirm the dismissal of Jarrow’s § 1983
claims against private attorney Michael Vitt; Jarrow’s
allegations of a conspiracy among the defendants to violate his
civil rights are purely conclusional and therefore insufficient
to establish § 1983 liability for a private actor. See Brinkmann
v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986). Given that none
of the defendants are subject to suit, we pretermit discussion of
the issues whether Jarrow had the requisite capacity to bring
suit on behalf of his minor children and whether the § 1983
claims were otherwise barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994).
Jarrow does not challenge the district court’s finding that
his § 2254 claims were subject to dismissal without prejudice for
failure to exhaust state court remedies. As such, he has waived
review of the exhaustion issue. See Hughes v. Johnson, 191 F.3d
607, 613 (5th Cir. 1999).
Jarrow’s appeal lacks arguable merit and therefore is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
No. 05-30733
-3-
F.2d 215, 219-20 (5th Cir. 1983). The district court’s dismissal
of the § 1983 claims as frivolous and our dismissal of this
appeal count as two strikes for purposes of 28 U.S.C. § 1915(g).
See Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 463-64 (5th
Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Jarrow is cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to proceed in forma pauperis
in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 7, 2000 Session
STATE OF TENNESSEE EX REL. DEBBIE D. WHITFIELD v.
MICHAEL R. HONEYCUTT
Appeal from the Circuit Court for Robertson County
No. DR-8349 Carol Catalano, Judge
No. M1999-00914-COA-R3-CV - Filed February 16, 2001
Appellant, who was married to the mother at the time of the child’s birth, responded to a petition for
contempt regarding past due child support with a request to determine paternity of the child. A
paternity test is irrelevant in this case because even proof that he is not the child’s father would not
be a defense to contempt for failure to comply with a valid court order. We affirm the trial court’s
denial of the request.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.
and WILLIAM C. KOCH , JR., joined.
Clark Lee Shaw, Nashville, Tennessee, for the appellant, Michael R. Honeycutt.
Paul G. Summers, Attorney General and Reporter, Stuart Wilson-Patton, Assistant Attorney General,
for appellee, State of Tennessee ex rel. Debbie D. Whitfield.
OPINION
Michael R. Honeycutt appeals the trial court’s refusal to order a paternity test of the child of
his marriage to Debbie D. Whitfield. Ms. Whitfield was pregnant when the parties married in April
1991. The child, who bears Mr. Honeycutt’s first and last names, was born January 17, 1992. Mr.
Honeycutt was served with the complaint for divorce, which named him as the child’s father, about
three weeks after the child’s birth. The court set pendente lite child support of $50.00 per week on
June 19, 1992 and Ms. Whitfield was granted a default judgment on September 22, 1992,
presumably for the child support arrearage. The hearing for the divorce was held on November 18,
1992. Ms. Whitfield was granted a divorce and child support was set.
On June 22, 1996, Mr. Honeycutt was served a Petition for Contempt for failure to pay child
support. He was represented by an attorney at the hearing and did not question the child’s paternity.
Ms. Whitfield obtained a judgment for the arrearage, $13,490, in August, 1996.
On July 21, 1998, the State, on behalf of Ms. Whitfield, filed a petition for an increase in
child support, based on Mr. Honeycutt’s increased salary. On December 28, 1999, a petition for
criminal contempt was filed, alleging that Mr. Honeycutt’s child support debt was $15,440 and that
he had willfully failed to comply with the court’s order to pay. Mr. Honeycutt’s answer to the
petition for contempt, filed in January 1999, seven years after the child’s birth, was his first assertion
that he might not be the boy’s father. Mr. Honeycutt sought a parentage test,1 hoping to prove he
was not the father of the child, thus relieving him of the child support obligation.
On April 22, 1999, the court entered an order increasing Mr. Honeycutt’s child support
obligation to $91.38 per week and ordering him to pay an additional $25.00 per week on the
arrearage. The court also sentenced Mr. Honeycutt to ten days in jail for the contempt, but
suspended the sentence “upon the condition that [he] complies with this Order.” In a subsequent
order, entered July 1, 1999, the court denied the motion for parentage testing, relying on the doctrines
of equitable estoppel, judicial estoppel, collateral estoppel, and res judicata. Mr. Honeycutt appeals
only the denial of the motion for parentage testing.
We begin our analysis by noting that the boy is presumed to be Mr. Honeycutt’s child
because he was born during the marriage of Mr. Honeycutt and Ms. Whitfield. See Tenn. Code Ann.
§36-2-304(a)(1) (Supp. 2000). Further, the child bears Mr. Honeycutt’s first and last names, and
the mother’s complaint for divorce named him as the father. The issue of Mr. Honeycutt’s child
support payments had been before the trial court on at least four occasions prior to the proceeding
at issue, with no suggestion that Mr. Honeycutt might not be the father of the child. Mr. Honeycutt
has introduced no evidence, not even his own affidavit, which might hint that the child is not his.
Mr. Honeycutt now seeks to rebut the presumption of paternity by obtaining a parentage test,
which he hopes will show that he is not the biological father of the child. Because the case from
which the request originated was not a contested paternity case, we shall apply Tenn. Code Ann. §
24-7-112(a)(2), which states:
During any . . . civil or criminal proceeding [other than a contested paternity case]
in which the question of parentage arises, upon the motion of either party or on the
court's own motion, the court shall at such time as it deems equitable order all
necessary parties to submit to any tests and comparisons which have been developed
and adapted for purposes of establishing or disproving parentage.
1
No motion for a parentage test appears in the record although Mr. Honeycutt submitted a “Memorandum of
Law in Support of Motion for Parentage Testing.” The trial court treated Mr. Honeycutt’s request for a parentage test
as if a motion had been filed and we shall analyze the matter as if it had. See Usrey v. Lewis, 553 S.W .2d 612, 614
(Tenn. Ct. App. 1977) (this court endeavors to give effect to the substance rather than the form and terminology of the
filings).
-2-
Tenn. Code Ann. § 24-7-112(a)(2) (2000) (emphasis added). Although the statute contains the
mandatory “shall,” it also has the discretionary language “at such time as it deems equitable.” Id.
We read the statute as allowing the trial court the discretion to apply equitable principles and
determine whether to permit the parentage test. See Gatlin v. Gatlin, No. 02A01-9710-CH-00267,
1998 WL 408797 at *2 (Tenn. Ct. App. July 22, 1998) (no Tenn. R. App. P. 11 application filed);
State of Tennessee ex rel. Duck v. Williams, Nos. 02A01-9604-JV-00084 and 18-0155, 1997 WL
675459 at *3 (Tenn. Ct. App. Oct. 29, 1997) (no Tenn. R. App. P. 11 application filed). We review
this case for an abuse of that discretion.
The request for a parentage test arose as an “affirmative defense” to the petition for contempt
of court for the willful failure to pay child support. In other words, Mr. Honeycutt sought to escape
the consequences of failure to comply with valid court orders. Our Supreme Court has discussed
contempt of court, stating:
[T]he inherent power of courts to punish contemptuous conduct has long been
regarded as essential to the protection and existence of the courts. Indeed, at
common law, the power of courts to punish contempts was vast and undefined.
Because unlimited, undefined discretionary power carried with it the potential for
abuse, specific statutory provisions were adopted to limit and define the conduct
punishable by contempt.
Conduct punishable as contempt in Tennessee now is delineated in Tenn. Code Ann.
§ 29-9-102 (1980 Repl.) which provides:
The power of the several courts to issue attachments, and inflict
punishments for contempts of court, shall not be construed to extend
to any except the following cases: . . .
(3) The willful disobedience or resistance of any officer of the said
courts, party, juror, witness, or any other person, to any lawful writ,
process, order, rule, decree, or command of said courts. . .
Contempts may be either criminal or civil in nature. . . . Criminal contempts . . . are
intended to preserve the power and vindicate the dignity and authority of the law, and
the court as an organ of society. Therefore, sanctions for criminal contempt are
generally both punitive and unconditional in nature. While criminal contempts may
arise in the course of private civil litigation, such proceedings, "in a very true sense
raise an issue between the public and the accused."
Black v. Blount, 938 S.W.2d 394, 397-98 (Tenn. 1996) (citations omitted).
It is well settled that parties must comply with the order of a court unless or until that order
is modified or set aside. See Vermillion v. Vermillion, 892 S.W.2d 829, 833 (Tenn. Ct. App. 1994)
-3-
(citing Nashville Corp. v. United Steelworkers of America, 215 S.W.2d 818, 820 (Tenn. 1948);
Segelke v. Segelke, 584 S.W.2d 211, 214 (Tenn. Ct. App. 1978)). Failure to comply can result in a
finding of contempt. See Segelke, 584 S.W.2d at 214. The existence of grounds for modification
of an order is not available as a defense to proceedings for contempt for failure to comply with the
order. See Bradshaw v. Bradshaw, 133 S.W.2d 617, 619 (Tenn. Ct. App. 1939).
Where a divorced [spouse] neglects to apply for a modification of the divorce decree,
in spite of the fact that sufficient grounds exist to warrant modification, the mere
existence of such grounds with respect to payments due under the decree is not
available as a defense to proceedings for contempt for violating the decree.
17 AM . JUR. 2d Contempt § 145 (1990). The same rule applies to the proceedings before this court.
Mr. Honeycutt attempted to defend against the petition for contempt with his assertion that
the child might not be his. Such a defense is not available in a contempt proceeding. See id.; see
also Bradshaw, 133 S.W.2d at 619. Even actual proof of non-paternity would not be a defense to
the order to pay amounts already due. Therefore, the paternity test is irrelevant to the contempt
petition.
Mr. Honeycutt refers us to cases from this court in which men have obtained relief from child
support obligations after showing proof that they were not the biological fathers. We note that each
of those cases arose from Tenn. R. Civ. P. 60.02 motions, requesting prospective relief from the
child support orders. See White v. Armstrong, No. 01A01-9712-JV-00735, 1999 WL 33085 at *5
(Tenn. Ct. App. Jan. 27, 1999) (no Tenn. R. App. P. 11 application filed); Johnson v. Johnson, No.
02A01-9605-JV-00123, 1997 WL 271787 at *3 (Tenn. Ct. App. Jan. 7, 1997) (no Tenn. R. App. P.
11 application filed); Tennessee Dep’t of Human Servs. v. Johnson, Shelby Juv., 1986 WL 1873 at
*3 (Tenn. Ct. App. Feb. 11, 1986) (no Tenn. R. App. P. 11 application filed). Such is not the case
before us. Mr. Honeycutt attempted to raise his possible non-paternity of the child as a defense to
contempt of court for past due child support, which he clearly cannot do.2
The trial court did not abuse its discretion by denying Mr. Honeycutt’s request for a parentage
test because whether he is the biological father is irrelevant to whether he complied with the trial
court’s order that he pay child support. This cause is remanded for such further proceedings as may
be necessary. Costs are taxed to the appellant.
___________________________________
PATRICIA J. COTTRELL, JUDGE
2
This court expresses no opinion regarding Mr. Honeycutt’s ability to obtain prospective relief from the child
support award through a properly pled and supported Tenn. R. Civ. P. 60.02 motion. W e also express no opinion
regarding Mr. Honeycutt’s prerogative to obtain testing privately without a court order.
-4-
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614 F.2d 1296
Shallowford Community Hospitalv.Harris
No. 79-2476
United States Court of Appeals, Fifth Circuit
3/28/80
N.D.Ga., 470 F.Supp. 1247
1
AFFIRMED***
***
Opinion contains citations(s) or special notations
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926 So.2d 432 (2006)
Maris Marie GEIGER, Appellant,
v.
Jason William SCHRADER, Appellee.
No. 1D05-2921.
District Court of Appeal of Florida, First District.
March 27, 2006.
Rehearing Denied April 25, 2006.
Cynthia Stump Swanson, Esquire, Gainesville, for Appellant.
Paul S. Rothstein, Esquire, Gainesville, for Appellee.
PER CURIAM.
Appellant appeals the trial court's amended order of injunction for protection against domestic violence with minor child, modifying a visitation schedule for appellee with the parties' minor child. However, *433 the injunction expired on November 2, 2005, and therefore is no longer in effect. Accordingly, this appeal is dismissed. See Hunt v. Hunt, 713 So.2d 1117 (Fla. 1st DCA 1998) (dismissing an appeal to dissolve a domestic violence injunction which had already expired).
Appellee has also filed a cross appeal, alleging that the trial court erred in declining to award attorney's fees against appellant in the injunction order. However, because there is no provision for an award of attorney's fees in a section 741.30, Florida Statutes, proceeding, this cross appeal is without merit. See Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997) (denying an award of attorney's fees in a section 741.30, Florida Statutes, proceeding).
AFFIRMED.
KAHN, C.J., LEWIS and POLSTON, JJ., concur.
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2016 IL App (1st) 131009
No. 1-13-1009
Opinion Filed November 9, 2016
THIRD DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court
) of Cook County,
Plaintiff-Appellee, ) Illinois.
)
v. ) No. 05CR17342
)
DAVID BANKS, ) The Honorable
) Kevin M. Sheehan,
Defendant-Appellant. ) Judge Presiding.
)
)
_____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with
opinion.
Justices Lavin and Cobbs concurred in the judgment and opinion.
OPINION
¶1 On the morning of September 8, 1990, the Chicago Fire Department responded to a fire
in the basement of a multi-unit apartment building at 1058-1060 West Lawrence Avenue in
Chicago. The bodies of a 55-year-old woman and a 79-year-old man and were discovered in
the fire. The manner of death was determined to be homicide, and the fire was determined to
have been caused by arson. A 12-year-old girl, T.C., reported having been raped and doused
in fire accelerant by the offender in the basement but escaped to call for help.
1-13-1009
¶2 Defendant David Banks was arrested after a 2005 “cold hit” in the DNA database. He
was charged by indictment with 24 counts of first degree murder and one count of arson in
regards to the double homicide and sexual assault. The indictments alleged that defendant
murdered victims Irene Hedgpeth and Lawrence Soucy while committing the offenses of
criminal sexual assault against T.C. and arson. A jury trial was held in 2013, after which the
jury found defendant guilty of arson as well as the two murders. The trial court sentenced
defendant to two terms of natural life imprisonment for the murders, to be served
consecutively, and a term of 15 years’ imprisonment for arson, also to be served
consecutively. On appeal, defendant contends (1) the trial court erred in admitting DNA
evidence at trial; (2) he was prejudiced by the “misuse” of his prior criminal record at trial;
(3) he was prejudiced by comments by a testifying police officer regarding his invocation of
his right to remain silent and his request for counsel; and (4) he was deprived of the effective
assistance of trial counsel for a series of alleged trial errors. For the following reasons, we
affirm.
¶3 BACKGROUND 1
¶4 Defense counsel filed several motions prior to trial 2 including motions asking to suppress
defendant’s statement and motions relating to the introduction of DNA evidence at trial,
asking to bar the introduction of other crimes evidence at trial, asking to be allowed further
testing of the biological materials and databases for use at trial, and requesting greater
latitude in the cross-examination of the State’s DNA expert. Relevant to this appeal,
1
This court provides an extensive background in order to give full consideration to the many fact-
intensive issues defendant raises on appeal.
2
There was extensive motion practice as well as hearings in this case, much of which concerned
the fact that the prosecution began as a capital case. As this is not germane to the issues at bar, this
court will not concern itself with this portion of the case history.
2
1-13-1009
defendant specifically sought (1) a Frye hearing (Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923)) regarding whether DNA testing without the original controls or blanks was a
scientifically valid methodology, (2) to exclude the DNA evidence where some of the
material was inadvertently lost during testing in the laboratory, and (3) a search of the
National DNA index system “for actual 9-loci pair matches that actually exist in the
databases for the 9-loci identified in this case,” and “for the frequency of each of the alleles
identified in this case as they actually exist in the databases.”
¶5 After a hearing, the trial court denied the request for a Frye hearing regarding the DNA
testing without the original blanks, stating: “Frye does not apply once determined that the
scientific method is generally accepted” and noting that “[t]here is no Frye standard plus
reliability standard, no independent evaluation of the theory or the reliability once the general
acceptance threshold has been met. Reliability comes from general acceptance.” The court
explained that defendant’s arguments regarding the DNA testing “goes to the weight, not the
admissibility under Frye,” and that defendant’s concerns could be addressed at trial through
“vigorous cross-examination presentations of contrary evidence such as expert testimony.” It
stated: “The Frye standard applies only if scientific principle and technique or test offered is
new or novel.”
¶6 The court also held a hearing on defendant’s motion for relief in conjunction with
destruction of DNA or related evidence. The court denied the motion, finding that the DNA,
which was inadvertently spilled during laboratory testing, was not materially exculpatory
evidence and that it was not destroyed in bad faith. Additionally, the court admonished
defense counsel that use of the term “destroyed” was not appropriate, stating, “It’s spilled,
right? We’re talking semantics here, something certainly wasn’t destroyed in a bad faith
3
1-13-1009
sense or somebody just took something and obliterated it. *** What we have here is
something that’s spilled during a test requested by the parties[.]”
¶7 Defendant’s motion for a DNA database search was filed with the trial court on May 20,
2010. By that motion, defendant explained that he was arrested based on a “partial, 9 Loci
DNA match to a buccal swab taken from him.” The motion also stated:
“5. The Illinois State Police Forensic Scientist in this case, Cynara C.
Anderson, opined that the statistical probabilities of such a match were 1 in 52
million Black, 1 in 390 billion White, or 1 in 200 billion Hispanic unrelated
individuals at the 9 loci profiled.
6. However, the Forensic Scientist from the Illinois State Police printed a
State Match Detail Report that indicates that the ‘Locus Match Stringency’
parameters were set at high, which nevertheless resulted in 2 matches, 1 at 10
Loci and 1 at 6 Loci; presumably the ‘10 Loci’ match is actually the 9 Loci match
excluding the Amelogenin Loci (X,Y). It is not clear what the other 6 Loci match
was.
7. Moreover, an Arizona database search of 65,493 specimens revealed
120 pairs of 9-loci matches; an Illinois database yielded 900 pairs of matches at 9
loci; and a Maryland study 32 pairs of 9-loci in a database of less than 30,000.
Wherefore, the State’s theoretical statistical analysis, which lends relevancy and
weight to the State’s DNA evidence is seriously in doubt considering actual DNA
searches of real profiles that exist in actual DNA databases.”
Defendant specifically requested the court to order the State Police to search the following
databases: “a. offenders maintained under 730 ILCS 5/5-4-3(f); b. unsolved crimes
4
1-13-1009
maintained by state and local DNA databases by law enforcement agencies; and/or c. the
National DNA index system” using the following formulas:
“a. for actual 9-loci pair matches that actually exist in the databases;
b. for the actual 9-loci identified in this case, but utilizing Low, Medium
and High locus Match Stringency; and
c. for the actual frequency of each of the alleles identified in this case as
they actually exist in the databases.”
This motion was held in abeyance.
¶8 On July 19, 2012, defense counsel withdrew the DNA database search motion, explaining
to the court:
“THE COURT: Database search motion withdrawn?
[PUBLIC DEFENDER CHRIS ANDERSON:] Yes, motion for DNA
Database search. I was able to actually find—the FBI had actually done a CODIS
allele frequency analysis for each of the databases, so I didn’t need it because I
have it now.
THE COURT: Okay. That database motion is withdrawn.
[PUBLIC DEFENDER ANDERSON:] That issue is done. After further
discussions with the lab, I realize that by entering the profile in this case that they
are searching all additional cases in the CODIS database against that COPA [sic]
any new ones put in so that in effect is being done anytime—
THE COURT: I believe [Assistant State’s Attorney Mary Lacy]
mentioned that on the last court date that they continually search during the
pendency of the case.
5
1-13-1009
[PUBLIC DEFENDER ANDERSON:] Right—well, perpetually they
search. Third the issue is the National DNA Search using the profile in this case
for purposes of trial strategy, general strategy, we are not pursuing that issue,
Judge. So all of these things that we requested have been resolved, so I’m asking
leave to withdrawal [sic] that motion, Judge.
THE COURT. Okay.”
¶9 Defendant also filed a motion to suppress his statement, as well as a supplemental motion
to suppress statements. At the end of the hearing, the trial court made extensive findings of
fact, after which it denied the motion, noting:
“For the foregoing reasons, respectfully your motion to suppress
statements is denied. The court specifically finds that the defendant was advised
of his rights, that he waived his rights until he asked for an attorney when all
questions ceased ***.
He was never confronted with material misrepresentations. The
statements, whatever they were obtained [sic] by the defendant, from the
defendant, were not obtained as a result of physical or psychological or mental
coercion.
The court finds whatever statements that the defendant made were
voluntarily of his own free will. And the first time the defendant invoked his right
to attorney was to [the assistant State’s Attorney] after which questioning ceased.
Respectfully, your motion to suppress statements is denied.”
Also prior to trial, the State filed a motion in limine seeking to introduce evidence of a prior
crime at trial, that is, a 1984 sexual assault, as relevant to the issues of defendant’s propensity
6
1-13-1009
to commit sexual attacks and to motive and intent, as two of the murder counts on trial were
predicated on the alleged sexual assault of T.C. After hearing arguments from the parties, the
court allowed evidence of the prior sexual assault as evidence of defendant’s propensity to
commit sexual attacks, motive, and intent, as two of the murder counts on trial were
predicated on the alleged sexual assault of T.C. Specifically, the court determined:
“It is clear that in viewing the proof of other crimes sought to be admitted,
it’s relevant to the issues of defendant’s propensity to commit sexual attacks and
to motive and intent. The statute [and] case law mandates this Court to allow the
People to present evidence of other crimes discussed above.”
¶ 10 Defendant also moved to bar the use of the 1984 sexual assault case and a 1990 murder
conviction for impeachment purposes should he testify. The State agreed not to use the 1984
sexual assault case for impeachment. The court then allowed evidence of the 1990 murder
conviction “for the very limited purpose” of impeachment in the event defendant were to
testify.
¶ 11 At trial, T.C. testified she was a 12-year-old sixth grader in September 1990. She lived in
the second floor apartment at 1060 West Lawrence with her mother, stepfather, and two
sisters. She had slept overnight at her father’s house a few blocks away and was returning to
her own apartment at approximately 8:30 on the morning in question. Although she did not
know how big she was at the time of the attack, she testified she was smaller at the time of
the attack in 1990 than she was at the time of trial. At the time of trial, she was 4 foot, 11
inches tall and weighed 90 pounds. As she approached the back entrance to her building, a
man grabbed her from behind and covered her mouth with his hand. He dragged her down to
the basement apartment where she saw a woman and a man. She recognized the woman as
7
1-13-1009
Pat, the building manager, and the man as a resident of the building. Both of the victims had
their hands tied and their mouths gagged. Pat was moaning. The man was on the floor, not
moving. The offender hit and kicked T.C. He ordered her to remove her pants and
underpants. He pulled them off of her after she resisted. He then stuck his finger and penis
into her vagina. While this was happening, T.C. heard Pat say, “don’t hurt her, let her go.”
The attacker responded, “shut up, I kill you.”
¶ 12 After sexually assaulting T.C., the assailant picked Pat up off of the floor and put her on a
bed. Then he walked to the man, still on the floor, and kicked him. T.C. then watched as the
assailant poured what looked and smelled like gasoline on both the woman and the man. He
then returned to T.C., picked her up, and laid her on the floor near the bed. He soaked her
pants and underpants in gasoline and ordered her to put them back on. When she refused, he
put them on her. She then watched him rummage in his duffel bag and retrieve a bicycle
chain lock. He put the chain around T.C.’s neck and choked her with it. She tried to fight and
resist, but slipped in and out of consciousness. When she came back to consciousness, she
was laying on the floor. She acted like she was dead and watched her assailant look for
matches. He found the matches and lit a fire on the bed near Pat. T.C. continued to play dead
as the room filled with smoke and fire, and she watched the attacker grab his duffel bag and
leave through the front door. After he left, she got up, attempted unsuccessfully to rouse Pat
and the man, and then escaped. She ran upstairs to her apartment, told her mother what
happened, and they left the building. T.C. was taken to the hospital.
¶ 13 At trial, T.C. described her attacker as having long hair pulled back in a ponytail and
wearing a sleeveless shirt. T.C. also described a big “greenish color” tattoo that “was looking
like a dragon” on his arm. She remembered he was wearing a chain around his neck that held
8
1-13-1009
two credit card-sized cards. T.C. did not identify defendant at trial has her assailant. In 1991,
she identified another man, Albert Chaney, as her assailant. Chaney was arrested at that time,
but subsequently cleared by DNA evidence and released in 1993.
¶ 14 Joanne Vo, T.C.’s mother, testified she heard banging on her apartment door at
approximately 11:15 a.m. on September 8, 1990, and opened the door to find T.C. crawling
on the ground, her face black and red, and a line on her neck. T.C. smelled like gasoline and
her clothes were wet and dirty. Vo took T.C. to the hospital.
¶ 15 T.C. was examined at Children’s Memorial Hospital by Dr. Ramona Slupik. Dr. Slupik
testified that T.C. had been severely traumatized. Her eyes were swollen, the whites of her
eyes were red and had burst blood vessels, and she had bruise marks and a strangulation
mark around her neck. Dr. Slupik testified that T.C. was “trembling, but she was coherent”
during the examination, and was able to answer the doctor’s questions. T.C.’s genital area
had swollen labia, a thin bloody discharge, and slightly dried white secretions on the outside
of the hymen. In Dr. Slupik’s opinion, there was “convincing evidence of blunt force
penetrating trauma,” or “penile penetration.” Dr. Slupik confirmed the presence of sperm
under a microscope, took cultures to test for sexually transmitted diseases, and then collected
DNA swabs from the oral cavity, vagina, and rectum, as well as fingernail scrapings for a
rape kit. These items were each labeled individually, sealed, and sent to the crime lab.
¶ 16 The parties stipulated that nurse Mary Whiteford took the rape kit from Dr. Slupik and
put it in hospital storage, that the kit was then retrieved by nurse Sandra Roy and given to
Chicago Police evidence technician Roy Fondren, who then stored it with the evidence and
recovered property section of the police department. The parties stipulated that a proper chain
of custody was maintained over the kit at all times.
9
1-13-1009
¶ 17 Retired Fire Marshall Louis Outlaw testified that he responded to a fire alarm at the
three-story apartment building at 1058-1060 West Lawrence on September 8, 1990. The fire
was extinguished by the time he arrived, and he spoke with firefighters on the scene. Outlaw
determined the fire was mainly contained to the basement apartment. He then entered the rear
basement apartment and saw a male victim on the floor who appeared to have had his throat
slashed and a female victim on a bed who was badly burned over her entire body. Outlaw
determined an accelerant had been used to advance the fire, that the ignition source was a
human action such as an open flame, and that someone had purposely set the fire.
¶ 18 Illinois State Police acting trace chemistry group supervisor Alan Osoba, who at the time
of the fire worked as a criminalist or police chemist for the Chicago Police Department’s
crime laboratory, testified he tested T.C.’s recovered clothing as well as four debris cans
collected from the fire scene for accelerants. T.C.’s clothing and three of the four debris cans
contained petroleum distillate residue such as diesel fuel or charcoal lighter fluid.
¶ 19 Retired Chicago Police Detective Wayne Johnson testified that he was working as a
detective assigned to the violent crimes unit in September 1990. He arrived at the scene of
the crime around 1:30 p.m. and went in to the basement apartment to process the crime
scene. He then went to the hospital to interview T.C. He testified T.C. described her attacker
as: “male, black approximately six feet tall, approximately 200 pounds with long hair worn in
a ponytail, growth—beard growth on his face, a short sleeved shirt, white Nike gym shoes,
and a sliver chain around his neck that displayed two cards that she compared to credit cards
at the time.” She said he carried a tubular gray duffel bag. He testified that T.C. was
traumatized, but that a few days later she was able to provide more detail about her attacker.
At that time, T.C. said “she thought he had a tattoo on his upper arm that to her looked like a
10
1-13-1009
dragon.” She described it as light blue or faded blue green in color, but was unable to give
great detail due to the lighting and the traumatic nature of the attack.
¶ 20 Dr. Edmund Donoghue, then the Cook County Medical Examiner, testified that he
performed the autopsies of both Hedgpath and Soucy. He determined that both victims died
before the fire was set, Hedgpeth of strangulation and Soucy from blunt force trauma. He
described Hedgpeth as a 55-year-old white female with burns over 100% of her body,
including full thickness burns. Hedgpeth also had internal injuries including fractures
consistent with manual strangulation. Dr. Donoghue described Soucy as a 79-year old white
male with partial thickness burns on much of his body. Soucy had a 2-inch deep wound
through his right eye, consistent with being stabbed with an ice-pick-like instrument. He also
had numerous skull and rib fractures consistent with being stomped or kicked, as well as a
laceration to his neck involving the jugular vein consistent with his neck being cut with a
knife.
¶ 21 Forensic Scientist Edgardo Jove testified that he worked at the Chicago Police
Department crime lab from 1991 to 1996. He received the rape kit taken from T.C. for testing
on July 20, 1993. The kit contained oral, rectal, and vaginal swabs and smears; microscopic
slides; and fingernail samples. He examined the vaginal smears for the presence of sperm and
tested the body fluids found on the vaginal swab. He then sent the samples for DNA testing
to the Illinois State Police forensic lab in Springfield. Jove testified that he maintained a
proper chain of custody over the items.
¶ 22 Dr. Elizabeth Benzinger testified as an expert in the field of forensic DNA analysis.
Although by the time of trial she worked with the Ohio Bureau of Criminal Investigation,
from 1990 to 1996 she worked at the Illinois State Police crime lab and was one of four
11
1-13-1009
individuals who set up the forensic DNA typing program from the Illinois State Police in
Springfield. She testified that she received sealed items including T.C’s vaginal swab and
blood samples from T.C. and Albert Chaney pertaining to this case in October 1993. She
described DNA to the jury as a “long string like molecule” that is “the blueprint of life.” She
described its usefulness in forensic analysis as:
“DNA is useful for forensic analysis because scientists believe that no two
individuals have the exact same DNA except for identical twins. So we are able to
look at the DNA from one person, their oral swab, their saliva, their blood, all the
tissue of their body, their bones, their semen, all have the same DNA. So we can
compare a sample from the blood or an oral swab from the mouth to DNA from a
crime scene, such as blood or semen, and use that to determine if the individual
could be the source of that crime scene sample.”
¶ 23 She described four steps to DNA tests: (1) extract the DNA from the item using a reagent
that is “essentially high tech laundry detergent,” which helps get the DNA out of, for
example, the shirt it may have been on; (2) solubilize the DNA, or get it into solution and
remove the other parts of the cell, separating a sexual assault sample into a male sample and
a female sample; (3) determine “how much DNA we have” and amplify the DNA; and (4)
examine the different areas of the DNA that are known to be highly variable and make
comparisons. She explained that DNA amplification is “essentially chemical Xeroxing” in
order to improve the sensitivity of DNA tests. Dr. Benzinger explained that, in 1993, testing
included using an RFLP method “that is responsible for the bar code-like patterns that we see
on TV” that did not use the amplification and was not very sensitive, and also a method
based on the amplification process known as DQ-Alpha. The DQ-Alpha test “examines some
12
1-13-1009
variation in the DNA on one of the chromosomes.” She said the DQ-Alpha test is “only one
test compared to what we use today which is an array of tests.”
¶ 24 When Dr. Benzinger received the samples from T.C. and Chaney, she numbered T.C.’s
blood standard 1, Chaney’s blood standard 2, and the vaginal swab 3. Dr. Benzinger testified
that she then extracted T.C.’s and Chaney’s DNA from the blood samples. She also extracted
DNA from the vaginal swab. Dr. Benzinger ran controls and created a reagent blank during
her testing. She explained the controls process:
“Q. [ASSISTANT STATE’S ATTORNEY DAVID WEISS:] When
you’re doing this test, do you work with any types or do you perform any types of
control to determine whether or not you’ve done anything to contaminate or do
anything to the sample?
A. [DR. BENZINGER:] A. Yes, because of the sensitivity of these tests,
we run controls to tell us whether we are introducing extraneous DNA and also
whether our methods are working correctly.
So the controls I used were samples that I worked with that I placed only
reagents in, only the chemicals that I was using. And my expectation was that I
should get no DNA type from them if they were not introducing DNA on their
own.
Q. Was that the result, no DNA?
A. Yes.”
¶ 25 Dr. Benzinger obtained profiles using DQ-Alpha testifying from the blood standards of
T.C. and Chaney, as well as from the vaginal swab. The profile from the vaginal swab did
not match the profile from Chaney’s blood standard. This excluded him from having
13
1-13-1009
contributed to the vaginal sample, that is, he was not the source of the semen on the vaginal
swab. Dr. Benzinger then followed the lab’s procedure: she dried the DNA she had extracted
from the vaginal sample on a piece of filter paper, froze it to preserve it, and sealed it. She
testified she maintained a proper chain of custody at all times during her testing.
¶ 26 On cross-examination, Dr. Benzinger agreed that DQ-Alpha testing has now been
replaced by DNA testing known as short tandem repeat, or STR, testing. DQ-Alpha tests at
one area of variation in a sample, while STR can test at 13 locations of a sample. In other
words, DNA testing has improved over the years to be more sensitive.
¶ 27 Chicago Police detective Thomas McIntyre was assigned to the cold case squad in 2002,
when he began a file review of the murders of Hedgpeth and Soucy. After learning that the
rape kit had been destroyed, he learned that DNA had been extracted from the kit samples.
He sought out the DNA extracts. Detective McIntyre located the DNA extracts in February
2005 and submitted them for DNA analysis. Later that year, he received the name of an
individual who had been identified in the FBI database from Anderson, who informed him
she needed a confirmatory buccal swab. On Jun 29, 2005, Detective McIntyre obtained a
warrant for a swab from defendant, and an evidence technician took a buccal swab from
defendant and photographed the tattoo of green roses on his right arm on June 30, 2005.
Detective McIntyre traveled to Peoria to arrest defendant and then transported defendant
back to Chicago.
¶ 28 The parties stipulated that retired Chicago Police evidence technician Kerry Watters
would testify that she collected a buccal swab from defendant on June 30, 2005. She also
photographed his arm and tattoo at that time. The buccal swab standard was subsequently
14
1-13-1009
submitted to the Illinois State Police crime lab for DNA analysis, and a proper chain of
custody was maintained over the evidence at all times.
¶ 29 Illinois State Police forensic scientist Cynara Anderson testified as an expert in her
chosen field. Defense counsel cross-examined her as to her qualifications, asking her if she
had formal training in population statistics and DQ-Alpha testing. As to her qualifications,
she testified she had completed both a forensic biology training program and a DNA analysis
training program, and had been previously qualified as an expert in both biology and DNA
on numerous occasions. She admitted she does not have “formal training in DQ-Alpha,” and
explained that population genetics was “one of our modules in our DNA training as well as I
completed course work in my college education.” She opined that population genetics were
“to a certain extent” one of her areas of expertise. She testified she had studied “about the
extent of actual preference of DNA” as “they actually exist in the population,” and agreed
she had studied statistics and population statistics. She agreed that the majority of her
training and expertise “is with respect to DNA, not to statistics.”
¶ 30 Anderson testified that she received DNA samples of extracted DNA in the T.C. case in
February 2005. 3 Sample 1A was a DNA standard extracted from T.C., sample 2A was a
DNA standard extracted from Chaney, and sample 3A was the female fraction (F1), sperm
fraction (F2), and DNA extracted from the vaginal swab (F3). Anderson testified that,
because the DNA was dried inside the tubes, she began by adding liquid to sample 1A, the
standard from T.C., and sample 3A, the extractions from the vaginal swab. She also created a
blank to monitor the analyses for any contamination. After creating the blank, she had five
3
Anderson testified she first received the incorrect evidence package in July 2004. She looked at
the package, saw that it was not what she needed, and sent it back. She received the correct package
in February 2005 and proceeded to test the contents as described herein.
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tubes altogether. She tested the blank tube, which should not contain any DNA, and did not
receive a DNA result. This meant that she had not introduced any contamination throughout
her analysis. Therefore, she began the process of amplification, or making copies of the DNA
in order to have a sufficient amount to “get a decent DNA profile from the extracted DNA.”
She transferred the DNA from T.C., F1, F2, and her blank to tubes and put them in a machine
to be amplified. Anderson testified that, during the preparation of the amplification stage, she
dropped the F2 tube (the sperm fraction from the vaginal swab) onto her exam paper. She
was still able to put the required amount of DNA into the first tube for the 9-loci
amplification, but was unsure if she had enough for the second tube for the other 4-loci
amplification. She put the DNA into the two tubes and amplified it. After amplification, the
samples, one 9-loci tube and one 4-loci tube, were ready to be put into another instrument in
order to generate the DNA profiles. In the 9-loci tube, the non-sperm fraction (F1) generated
a profile matching the standard from T.C., and the sperm fraction generated an unknown
male profile. Anderson did not get any results from the 4-loci tube. She testified it is not
uncommon to not get results on the 4-loci tube.
¶ 31 On May 23, 2005, Anderson entered the unknown male profile into the FBI database and
got two possible matches. One of these possible matches was defendant along with his
various aliases, and the other matched to a private laboratory. She telephoned the private
laboratory and determined that they had made an error in uploading certain information such
that, in the end, the second possible match was not a match. The nine loci matched to
defendant. Anderson requested a “confirmatory standard” from the Chicago Police so she
could perform an analysis to confirm the hit. She received that confirmatory standard in
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September 2005, and extracted a DNA profile which matched the profile identified in the F2
sperm fraction taken from T.C.’s vaginal swab.
¶ 32 Anderson testified that she then performed a statistical calculation of how rare the profile
identified in the F2 sperm fraction would be in a given population. She testified:
“A human DNA profile was identified in Exhibit 3A, which matches the
DNA profile of [defendant]. This profile will be expected to occur in
approximately 1 in 52 billion blacks, 1 in 390 billion white, or 1 in 200 billion
Hispanic unrelated individuals at the nine loci I worked with.”
¶ 33 Anderson also testified that, after she entered the sperm fraction in the database, the DNA
profile is “continually run as of now,” that every time somebody puts a profile in the
database, it is run against the DNA in this case. Since the database hit on defendant’s profile
in 2005, it has never hit to any other person or any other profile in the database. If it were to
hit on another individual or profile, Anderson would be notified.
¶ 34 On cross-examination, Anderson explained her process for generating the probability
statistics for the rarity of the DNA profile. She testified that there are 13 loci from which to
test. The value at each loci has a frequency of occurrence, and there are two possibilities at
each loci. The chances of the two values at each loci are added together and then multiplied
for the next location. Anderson acknowledged on cross-examination that she was only able to
determine the values at nine loci because she spilled the DNA, that she did not know the
profile for the additional four loci, and that if any of the remaining four loci did not match
defendant, he would be excluded as the offender.
¶ 35 Blake Willey, a former administrator at Somerset Nursing Home, located two blocks
from the scene of the crime, testified that defendant worked at the nursing home from May
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1990 to February 1991. During that time, nursing home personnel had to wear picture
employee identification cards and carry time clock punch cards. The picture identification
card was white and “about the size of a credit card.” He testified that some employees wore
their identification on a chain around their neck.
¶ 36 Chicago Police Lieutenant Anthony Wojcik testified he was a sergeant in the cold case
homicide investigation unit on June 30, 2005. He spoke with defendant that day in an
interview room at the police station. After advising defendant of his rights, defendant
indicated he understood them. Then Lieutenant Wojcik went over his rights a second time.
He asked defendant if he understood he was under arrest for the murders of Hedgpeth and
Soucy, as well as for the rape and attempted murder of a young girl, and for arson of the
residential building at 1060 West Lawrence. Defendant said he understood that was why he
was in custody. Defendant asked what was happening in the case. Lieutenant Wojcik told
defendant that the detectives were just about finished with their investigation and had
contacted the State’s Attorney’s office. He told defendant a State’s Attorney was on her way
to the police station and would review the case with the detectives and determine whether
charges should be brought against him. Wojcik testified, “I told him this investigation has
shown without doubt that you’re the guy that committed those crimes that you’re under arrest
for. I said I believe you’re going to be charged with those crimes.” Defendant asked what the
statute of limitations for the crimes was, and Wojcik told him there was no statute of
limitations on “murder related crime.”
¶ 37 Lieutenant Wojcik testified:
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“Well, he was quiet for a little while, then he just said I’m tired. He said
I’m tired of denying that I know anything about this and then he stated—he said
it’s these blackouts, man. He said I can’t control the blackouts.
***
He said, yes, throughout his life there would be periods of time where he
would have these blackouts. When he had these blackouts, he said the others
would take over. He said when the others took over he said I did f***d up things
that he was then held responsible for and he said in regards to this incident there
are things I do remember and some of it that he didn’t remember.
***
I said, what do you mean by the others? He says that there are two
individuals, that they were inside of him, and he said at times they would take
over—they would take over his body.
***
I asked him what happened *** in this incident [with the murders of
Hedgpeth and Soucy]. He says—he said I blacked out and the others took over.”
¶ 38 According to Wojcik, defendant recalled that a day or two prior to the incident, he
walked by a gas station and saw a black woman he knew drinking beer with Lawrence
Soucy. The woman introduced Soucy to defendant, and defendant started drinking with them.
At some point, Soucy told defendant he had some money in a can at his apartment.
Eventually defendant and Soucy walked back to Soucy’s basement apartment together.
Defendant returned to Soucy’s apartment a day or two later and started looking for the can of
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money. Soucy came in and asked defendant what he was doing, and a white woman entered
the apartment and shouted at defendant to get out. Wojcik testified:
“The next thing he said that he remembered was he was running from the
rear of the building and the building was burning and it was on fire. He said he
ran through an alley to get away from there, and then later he realized that his hair
was frizzed. He said it was frizzed, and then he said it was singed from the flames
in the heat.
***
He said he went to a beauty salon in the neighborhood, and he had his hair
trimmed and then he got a perm.”
¶ 39 Lieutenant Wojcik said he asked defendant if he knew the two individuals had been
killed, asked him why his semen was in the young girl, and why he set the building on fire.
He testified defendant responded:
“He says when I blacked out he said the others must have made me do
things then that I don’t remember.”
¶ 40 Lieutenant Wojcik testified defendant said he did not remember ever having seen or met
T.C. Defendant confirmed he was employed at Somerset House and thought he was on duty
or working when he went to Soucy’s apartment. Defendant also told Wojcik that he wore his
ID cards around his neck, he wore his long hair back in a ponytail, and he had a tattoo on his
arm. Defendant identified a photograph of the building at 1058-1060 West Lawrence as
Soucy’s building. Lieutenant Wojcik then asked defendant if he would speak with the
assistant State’s Attorney, and defendant said he would.
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¶ 41 On cross-examination, defense counsel asked Lieutenant Wojcik why he did not request a
court reporter to record defendant’s statement. Wojcik responded:
“[B]ecause at a certain point the defendant asked for an attorney, so we
didn’t get to that point where we would have called for a court reporter.
***
*** [I]t would have been—when I got done talking to him it was about
4:15. I want to say it was some time around a little bit after 5:00 o’clock or so
when he asked for an attorney. When I was in there with the State’s Attorney was
the first time he asked for an attorney.”
Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was
the responsibility of the State’s Attorney. He said:
“The State’s Attorney would make [the decision to call a court reporter] in
consult with [defendant] if he was willing to do that, but while the State’s
Attorney was speaking to [defendant] he requested an attorney. So at that time all
conversation stops.”
¶ 42 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial,
arguing that the witness repeatedly emphasized that defendant had requested an attorney. The
trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel
replied, “Because I didn’t want to emphasize that he had brought it out[.]” The trial court
denied the motion for a mistrial, saying “what prompted the part about the attorney is
because you [defense counsel] asked him questions about why weren’t charges approved
before the State’s Attorney got there,” and “the only logical answer he could say upon your
continuing questioning is, well, because he asked for an attorney. It was not brought out
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volitiously [sic] by him. In my opinion it was brought out by your continuing questions for
that area.”
¶ 43 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of
questions about what he did and did not do while questioning defendant. Specifically,
defense counsel asked a series of questions regarding why Wojcik did not drive defendant up
to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon
where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to
find the salon, but did not drive defendant there to do so. Counsel again asked why, when
defendant allegedly had said the salon was in the neighborhood but was unsure of the street it
was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon.
Wojcik answered:
“Again, Counsel, I probably would have done that, but he asked for an
attorney, which means at that point everything—any conversations I was having
with him about the case had to stop, including putting him in a car and having him
to point locations out.”
¶ 44 At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a
new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an
attorney. The trial court denied the motion, responding:
“The problem with this is the way you asked the question once it came out
once the charges were approved upon [the assistant State’s Attorney] arriving
there and it came out that he asked for an attorney and didn’t obviously want to
talk to her without one, this was a natural response to a question about after he
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was through talking putting him in the car and taking him somewhere and having
him find someone.
This is exactly what happens when you are not directing him to a
particular time. You simply asked a question. I just wanted you to make a record.
Your motion for a new trial is denied. This is the fourth time he stated he wanted
an attorney.”
¶ 45 Assistant State’s Attorney Christa Bowden testified that she arrived at the police station
around 3:00 p.m. on June 30, 2005. She was a trial supervisor in the felony review unit at the
time. She spoke with defendant along with Lieutenant Wojcik. She introduced herself to
defendant, advised him of his rights, and told him that she was an attorney but not his
attorney. They talked for approximately 30 to 40 minutes. Assistant State’s Attorney Bowden
testified that defendant acknowledged having talked with Lieutenant Wojcik, and she asked
him to tell her what they had spoken about. She testified:
“A. [ASSISTANT STATE’S ATTORNEY BOWDEN:] Well, I had asked
him if he would tell me the things that he was talking to [Wojcik] about, and he
told me that he remembered that he had been drinking—around the time of the
incident he had been drinking with an older white guy and a black woman at a
filling station and that he left the filling station with the older white guy, and the
black woman didn’t come and that he and the older white guy went to a building.
The next thing that he remembered after that was that he was running down an
alley and ended up at a beauty parlor.
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Q. [ASSISTANT STATE’S ATTORNEY MARY JO MURTAUGH:]
And did he also tell you that he believed that something weird had happened that
day?
A. Yes. He said as he was running down this alley he knew that something
had happened, but the next thing he knew he was at a beauty parlor. After he said
that [ ] he didn’t remember between going to the building with the older white
guy and running down the alley thinking something weird had happened and
ending up at the filling station, he said at that time that he was ready to die and he
just wanted to get it over with.
***
Q. Did David Banks tell you anything about when he seemed to get his
life together that something happens?
A. Right. So after he said this statement about just wanting to get it over
with, that prompted an inquiry about what are you talking about. He said, well,
every time he seems to get his life together and gets a job, gets an apartment, gets
a woman, people go on and mess things up for him; and he knows that people
mess things up for him because other people tell him that they do things that mess
things up for him.
***
He said he should be in prison so these things don’t happen.”
When Assistant State’s Attorney Bowden asked defendant who these people were, he
described them as being a person named Durell, who was a murderer, a person named Snow
who is nine years old, and a 63-year-old Portuguese man “who was a pervert, who would
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screw anything, in his words, even little girls.” She testified that defendant said, “These
three, Durell, Snow, and unnamed Portuguese would do things, and he would be the person
that would have to take responsibility for those things.” She said defendant told her he
wanted to tell the truth, that he did not dispute his DNA being at the crime scene, but instead
simply did not remember what happened before he was running down the alleyway towards
the beauty parlor.
¶ 46 Defendant’s statement was neither reduced to writing nor recorded in any way.
¶ 47 The trial court then instructed the jury:
“Ladies and gentlemen, in a moment evidence will be received that the
Defendant has been involved in an incident other than those charged in the
indictment before you. This evidence will be received on the issue of Defendant’s
propensity. And may be considered by you only for that limited purpose.”
¶ 48 Then, G.R. testified regarding the sexual assault defendant committed against her on
November 12, 1984. On that afternoon, G.R. was pushing her 11-month old daughter in a
stroller near the 5500 block of South Wabash in Chicago. Defendant crossed the street in
front of her and stopped her. He put his hand in his pocket, pointed it at her and said, “Bitch
don’t move; I have a gun.” G.R. begged for her life. Defendant directed her towards a
secluded area down a gangway, under a back porch in a “little basement area,” and told her
to remove her clothes. When she had one leg out of her pants, defendant noticed a man in a
nearby yard. He told G.R. to get up. She got dressed and he instructed her to move. He took
her into the basement of another apartment building. He told her to take her clothes off and
he removed his own pants. He then forced his penis into G.R.’s mouth, put his mouth on her
vagina, and had vaginal sex with her. Afterward, he apologized and offered to pay her not to
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tell anybody. He walked her home and helped her carry the child up the stairs in her stroller.
G.R.’s sister, the sister’s boyfriend, and G.R.’s boyfriend were all in the apartment.
Defendant sat down in the apartment while G.R. went into her bedroom with her boyfriend.
She told her boyfriend defendant had just raped her. G.R. called the police, who came to the
apartment and arrested defendant.
¶ 49 The State rested. Defendant asked for a directed verdict, which the court denied.
¶ 50 Defendant testified on his own behalf. He admitted having worked at Somerset House,
but denied that he wore his identification cards on a chain around his neck. He denied having
ever met Hedgpeth, Soucy, or T.C. He denied having ever been in the building at 1058-1060
West Lawrence. He denied having had anything to do with the crime. He admitted he spoke
with Detective Wojcik and Assistant State’s Attorney Bowden, but denied having told them
he was at all involved in this crime. He denied having told them he had blackouts, nor that
there were people inside of him who made him do things. He admitted having worn his hair
in a ponytail, but denied that his hair got frizzed or singed in the fire or that he went to a
beauty salon in the neighborhood to get it fixed after the fire. He showed his tattoo to the
jury. The tattoo, on his right arm, was of roses and a bare-chested woman. He explained that
he got the tattoo in 1994 to cover up a previous tattoo. The previous tattoo, which he got in
1989, was of the letters “BGGS” with a pitchfork running through it, which was a symbol of
the street gang to which he belonged. Defendant recalled that in September 1990, he lived
with a woman named Darlene and took care of her children. He testified he told the
detectives that, on the day of the crime, Darlene was in the hospital and he was babysitting
her children on the Southside of Chicago.
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¶ 51 The defense rested. The State then entered a certified copy of defendant’s conviction for
murder. The trial court advised the jury:
“Evidence of the Defendant’s previously [sic] conviction of an offense
may be considered by you only as it may affect his believability as a witness, and
must not be considered by you as evidence of his guilt of the offense with which
he is charged.”
¶ 52 At the close of arguments by both parties, the trial court instructed the jury, in part:
“[a]ny evidence that was received for a limited purpose should not be considered by you for
any other purpose.”
¶ 53 The jury returned a verdict of guilty on all counts: intentional and knowing murder of
Irene Hedgpeth and Lawrence Soucy, felony murder based on the offense of criminal sexual
assault, felony murder based on the offense of arson, and arson.
¶ 54 Defense counsel filed a motion for a new trial, which the court denied.
¶ 55 At sentencing, the trial court merged the felony murder counts into the intentional and
knowing murder counts. It also noted defendant’s prior conviction for murder and the sexual
assault case. The trial court sentenced defendant to natural life without parole for each count
of first degree murder, and a 14-year term of imprisonment for arson, to be served
consecutively to the two natural life sentences. Defense counsel filed a motion to reconsider
the sentences, which was denied.
¶ 56 Defendant appeals.
¶ 57 ANALYSIS
¶ 58 I. DNA Evidence
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¶ 59 Defendant first challenges the admission of DNA evidence at trial, arguing that the case
“rose and fell on the DNA evidence,” which evidence, he argues, should never have been
admitted in the first place. He contends (1) there was an unexplained, inexcusable gap in the
chain of custody of the DNA evidence between Dr. Benzinger and Anderson; (2) the trial
court erred in not granting a Frye hearing as to whether Anderson’s methodology was
accepted in the scientific community; (3) the trial court erred when it denied defense
counsel’s motion for relief with regard to the spilled genetic material; and (4) the trial court
erred in limiting the cross-examination of Anderson regarding studies on 9-loci matches. We
address each argument in turn.
¶ 60 Initially, we disagree with defendant’s characterization of his trial as one which rested
solely on DNA evidence. In his brief on appeal, defendant argues that “[t]his was, at all
times, a DNA-driven case.” He reminds the court that the prosecutor in closing arguments
repeated Anderson’s testimony that the semen recovered from T.C.’s vagina matched
defendant’s DNA at 9 loci, which would be expected to occur in approximately 1 in 52
million Black individuals. He argues “this was a case which rose and fell on the DNA
evidence. In fact, there was virtually no forensic evidence tying him to the two murders.” He
says that, because this was such an old case and defendant only came to the attention of the
police 15 years after the murders occurred based on a “cold hit” DNA match, “[w]ithout the
DNA *** there is no case here.”
¶ 61 It is true the DNA profile generated in this case matched defendant’s profile when run
through the FBI database in 2005. A confirmatory buccal swab was obtained from defendant
at that time, then, which provided confirmation that defendant’s DNA matched the DNA
evidence recovered in this case at 9 loci. However, in this court’s opinion, there was
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additional evidence presented at trial that also ties defendant to this crime. Most tellingly,
defendant provided an inculpatory statement to Lieutenant Wojcik and then to Assistant
State’s Attorney Bowden in which he implicated himself in the crime. Although the
statement was not memorialized in writing or in a recording, both Wojcik and Bowden
testified to the statement in great detail. In his statement, defendant admitted to knowing
victim Soucy. He described having met him days before the murder and visiting his
apartment. He described how Soucy kept a can of money in his apartment and how, on the
day of the murders, he returned to Soucy’s home to search for the can of money. His search
was interrupted first by Soucy and then by Hedgpeth, who demanded he leave. Defendant
told both Wojcik and Bowden that he then blacked out. The next thing he remembered, he
said, was running down an alley away from the burning building, his long hair singed by fire.
He also told both Wojcik and Bowden in great detail that individuals inside of him cause him
to do bad things, saying the “others” inside him must have put his semen inside T.C. He told
Lieutenant Wojcik that he wore his hair long and in a ponytail around the time of the
murders, that he worked at Somerset House during that time, and that he wore his work
identification cards on a chain around his neck.
¶ 62 Defendant’s statement was corroborated by former Somerset administrator Blake Willey,
who testified defendant worked at nearby Somerset House during the time of the murders,
that employees were required to wear identification cards which were approximately the size
of credit cards, and that many employees wore these cards around their necks. Defendant’s
statement was further corroborated by T.C.’s testimony that her attacker was a Black man
with long hair pulled into a ponytail who wore a chain around his neck with two credit card-
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sized cards on it. Essentially, defendant confessed that he committed the crimes under the
influence of the “others” inside of him.
¶ 63 For these reasons, we disagree with defendant’s representation that the case was based
solely on DNA evidence, but instead find that the DNA was one piece of the evidence by
which the jury found defendant guilty.
¶ 64 A. The Chain of Custody
¶ 65 Defendant first contends the circuit court erred in admitting the DNA evidence where
there allegedly was a gap in the chain of custody regarding the DNA evidence between
forensic scientists Dr. Elizabeth Benzinger and Cynara Anderson. Specifically, defendant
argues that, where Dr. Benzinger testified she preserved the extracted DNA by putting it on a
piece of filter paper which she then dried and froze, Anderson testified she received the
extracted DNA evidence in “tubes.” On appeal, defendant argues that these descriptions do
not match to such an extent that there was a complete breakdown in the chain of custody that
should have resulted in the exclusion of any resulting DNA testing completed on those
materials. We disagree.
¶ 66 As a threshold matter, we note that the State argues on appeal, and defendant apparently
concedes, 4 that he has forfeited this issue for purposes of appeal by failing to object to it at
trial and by failing to raise it in his posttrial motion. See People v. Thompson, 238 Ill. 2d 598,
611-12 (2010) (“To preserve a claim for review, a defendant must both object at trial and
include the alleged error in a written posttrial motion.”) (citing People v. Enoch, 122 Ill. 2d
176, 186 (1988)). Nonetheless, defendant urges us to consider his claim under the plain error
4
Although defendant does not specifically state that he failed to preserve this issue, he argues on
appeal that we should review his complaint as plain error. He argues that “this is the kind of error that
the Supreme Court has deemed cognizable under the plain error doctrine—there was a ‘complete
breakdown’ in the required chain of custody. People v. Woods, 214 Ill. 2d 455, 471-72 (2005).”
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doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded. Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of
the trial court.”); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
¶ 67 The plain error doctrine “bypasses normal forfeiture principles and allows a reviewing
court to consider unpreserved claims of error in specific circumstances.” Thompson, 238 Ill.
2d at 613. Specifically, the plain error doctrine permits “a reviewing court to consider
unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that
error is so serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence.” People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing Herron, 215 Ill. 2d at 186-87); see also
Thompson, 238 Ill. 2d at 613. Under either prong of the plain error doctrine, the burden of
persuasion remains on the defendant. People v. Lewis, 234 Ill. 2d 32, 43 (2009).
¶ 68 Our supreme court has said:
“We reject the notion that a challenge to the State’s chain of custody is a
question of the sufficiency of the evidence. A chain of custody is used to lay a
proper foundation for the admission of evidence. Accordingly, a defendant’s
assertion that the State has presented a deficient chain of custody for evidence is a
claim that the State has failed to lay an adequate foundation for that evidence. See
2 J. Strong, McCormick on Evidence § 212, at 9 (5th ed. 1999). Thus, a challenge
to the chain of custody is an evidentiary issue that is generally subject to waiver
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on review if not preserved by defendant’s making a specific objection at trial and
including this specific claim in his or her posttrial motion.” Woods, 214 Ill. 2d at
471.
Notwithstanding, our supreme court has recognized that a challenge to the State’s chain of
custody can be reviewed for plain error in the rare case where there is a complete breakdown
in the chain. People v. Alsup, 241 Ill. 2d 266, 277 (2011) (citing Woods, 214 Ill. 2d at 471-
72). The Woods court provided an example for plain error review, saying, “in those rare
instances where a complete breakdown in the chain of custody occurs—e.g., the inventory
number or description of the recovered and tested items do not match—raising the
probability that the evidence sought to be introduced at trial was not the same substance
recovered from defendant, a challenge to the chain of custody may be brought under the plain
error doctrine.” Woods¸ 214 Ill. 2d at 471-72. The court explained: “When there is a
complete failure of proof, there is no link between the substance tested by the chemist and
the substance recovered at the time of the defendant’s arrest. In turn, no link is established
between the defendant and the substance. In such a case, a failure to present a sufficient chain
of custody would lead to the conclusion that the State could not prove an element of the
offense ***.” Woods, 214 Ill. 2d at 472.
¶ 69 When the State seeks to introduce an object into evidence, it must lay a proper foundation
through either its identification by witnesses or through establishing a chain of possession.
Woods, 214 Ill. 2d at 466. The character of the object the State seeks to introduce determines
which method to establish a foundation the State must employ. Woods, 214 Ill. 2d at 466. If
an item is “readily identifiable and [has] unique characteristics, and its composition is not
easily subject to change,” the party may elicit testimonial evidence showing that the item is
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the same item recovered and that it is in substantially the same condition as when it was
recovered.” Woods, 214 Ill. 2d at 466. If the evidence is “not readily identifiable or may be
susceptible to tampering, contamination or exchange,” (Woods, 214 Ill. 2d at 467) the party
must establish a sufficient chain of custody “that is sufficiently complete to make it
improbable that the evidence has been subject to tampering or accidental substitution”
(internal quotation marks omitted) (Alsup, 241 Ill. 2d at 274). Once the State has established
this prima facie case, the burden shifts to the defendant to show actual evidence of
tampering, alteration, or substitution. Alsup, 241 Ill. 2d at 274-75. Our supreme court has
cautioned:
“In the absence of such evidence [of tampering, alteration, or substitution]
from defendant, a sufficiently complete chain of custody does not require that
every person in the chain testify, nor must the State exclude every possibility of
tampering or contamination. [Citation.] It is not erroneous to admit evidence even
where the chain of custody has a missing link if there was testimony which
sufficiently described the condition of the evidence when delivered which
matched the description of the evidence when examined. [Citation.] At this point,
deficiencies in the chain of custody go to the weight, not admissibility, of the
evidence. [Citation.].” Alsup, 241 Ill. 2d at 274.
¶ 70 The admission of evidence at trial is a matter left to the discretion of the trial court, and
the court’s decision on that point will not be disturbed absent an abuse of that discretion.
People v. Pikes, 2013 IL 115171, ¶ 12. An abuse of discretion occurs when the ruling is
arbitrary, fanciful, or unreasonable or when no reasonable person would adopt the trial
court’s view. People v. Taylor, 2011 IL 110067, ¶ 27.
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¶ 71 As noted, defendant failed to properly preserve this issue for appeal. He did not object to
the foundation for the evidence at trial, nor did he raise the issue in his posttrial motion.
Therefore, the issue is forfeited. See, e.g., Enoch, 122 Ill. 2d at 186. Our supreme court has
noted that forfeiture in cases such as this is particularly appropriate because, where the
defendant fails to object to the foundation of evidence at trial, the State misses its opportunity
to cure any error. See Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is
particularly appropriate when a defendant argues that the State failed to lay the proper
technical foundation for the admission of evidence” because the “lack of a timely and
specific objection deprives the State of the opportunity to correct any deficiency in the
foundational proof at the trial level”). Under the plain error rule, we consider whether any
error has occurred at all. Lewis, 234 Ill. 2d at 43; People v. Wilson, 404 Ill. App. 3d 244, 247
(2010) (“There can be no plain error if there was no error at all ***.”). This requires a
“substantive look” at the issue raised. People v. Johnson¸ 208 Ill. 2d 53, 64 (2003). We will
therefore first review defendant’s claim to determine if there was any error before
considering it under plain error.
¶ 72 Here, the chain of custody presented by the State at trial regarding the collected DNA
evidence was sufficiently complete. Chicago Police crime lab forensic scientist Jove testified
he received the rape kit taken from T.C. in July 1993. The kit contained oral, rectal, and
vaginal swabs and smears; microscopic slides; and fingernail samples. After performing his
examinations on the specimens, he sent the samples to the Illinois State Police forensic lab
for DNA testing. He testified he maintained a proper chain of custody over the items.
¶ 73 Forensic scientist Dr. Benzinger testified at trial that she received blood reference
samples from T.C. and Albert Chaney in October 1993. She specifically testified that the
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items were sealed when she received them. She numbered T.C.’s blood standard 1, Chaney’s
blood standard 2, and the vaginal swab 3. She extracted DNA from the blood standards and
the vaginal swab. She then dried the extracted DNA onto a piece of filter paper, froze it to
preserve it, and sealed it. She specifically testified she maintained a proper chain of custody
at all times during her testing.
¶ 74 Illinois State Police forensic scientist Anderson testified she received tubes with dried,
extracted DNA inside them on February 16, 2005. 5 The extracted DNA she received matched
the numbers provided by Dr. Benzinger: 1A was the extracted DNA from T.C., 2A was the
extracted DNA from Chaney, and 3A was the extracted DNA from the vaginal swab.
Anderson specifically described the evidence package she received:
“At this time I received the tubes of extracted DNA that the prior DNA
analyst had created. So there was our Exhibit 1A, which is extracted DNA from
[T.C], our Exhibit 2A which was reportedly extracted DNA from Albert Chaney,
and Exhibit 3A, which contained the F1 which is the female fraction or the non-
sperm fraction, the F2 which is the sperm fraction, and the F3 fraction of
extracted DNA from the vaginal swab of [T.C.].”
¶ 75 Defendant’s argument that there was a “complete breakdown” in the chain of custody is
unavailing where, through the above testimony, the State presented a sufficient foundation
and chain of custody to show that the DNA extracts received by forensic scientist Anderson
5
Defendant focuses on the fact that, on July 8, 2004, Anderson received the incorrect evidence
package to test. Specifically, Anderson testified at trial that she initially received “a package, but it
wasn’t the evidence I was looking for” and explained it was “Just some envelopes. They were marked
as being swabs from [T.C.], Albert Chaney and [T.C.], but that was not what I was looking for[.]” She
requested “different information” and received the package with “the tubes of extracted DNA that the
prior DNA analyst had created” on February 16, 2005. In our opinion, this demonstrates Anderson’s
attention to detail and does not in any way reflect negatively on her work.
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were the same DNA extracts tested and preserved by forensic scientist Dr. Benzinger. See,
e.g., Alsup, 241 Ill. 2d at 274. Because the State has presented a prima facie case that the
chain of custody was sufficiently complete to make it “improbable that the evidence has been
subject to tampering or accidental substitution,” the burden shifts to defendant to show actual
evidence of tampering, alteration, or substitution of the evidence. (Internal quotation marks
omitted.) Alsup, 241 Ill. 2d at 274. The defendant fails to do so. In fact, the defense provided
no evidence at trial that there was any tampering, exchange or contamination of the DNA
material. Defendant, in fact, did not object in any way to the foundation of this evidence at
trial. See, e.g., Woods, 214 Ill. 2d at 470 (the application of the forfeiture rule “is particularly
appropriate when a defendant argues that the State failed to lay the proper technical
foundation for the admission of evidence,” because the “lack of a timely and specific
objection deprives the State of the opportunity to correct any deficiency in the foundational
proof at the trial level”). 6 Our review of the record does not show inconsistency in the
descriptions of the evidentiary material at issue, and the alleged discrepancy does not amount
to a “complete breakdown” in the chain of custody. Once the State established the probability
that the evidence was not compromised, and defendant failed to show actual evidence of
tampering or substitution, deficiencies in the chain of custody go to the weight, not the
admissibility, of the evidence. Alsup, 241 Ill. 2d at 275. We find no abuse of discretion in the
6
This, in fact, is a prime example of the importance of a timely and specific objection when
laying a proper technical foundation for the admission of evidence. Here, Benzinger testified she
dried the extracted DNA onto a substrate, or a piece of filter paper, which she then froze to preserve.
Benzinger also testified regarding the process of extracting DNA from a substrate by using what she
described as a “high tech laundry detergent.” Anderson testified that she received tubes containing the
“extracted DNA that the prior DNA analyst had created.” Had the evidence been challenged at trial,
the parties could have clarified whether, for example, the tubes containing the extracted DNA actually
contained the piece of filter paper onto which Benzinger had dried the extracted DNA. Because there
was no objection at trial, there was no further exploration of the description of the received DNA
evidence.
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trial court’s determination to allow the DNA evidence in at trial. See Pikes, 2013 IL 115171,
¶ 12. We therefore find no plain error here. See Wilson, 404 Ill. App. 3d at 247 (“There can
be no plain error if there was no error at all ***.”).
¶ 76 B. No Frye Hearing
¶ 77 Defendant next contends that the trial court erred in denying his request for a Frye
hearing regarding whether forensic scientist Anderson’s methodology was accepted in the
scientific community. Specifically, defendant argues that he was entitled to a Frye hearing
because the scientific protocols evolved between when his DNA was tested in 2005 and the
time of trial in 2013. We disagree.
¶ 78 In Illinois, the admission of expert testimony is governed by the standards expressed in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); In re Commitment of Simons, 213 Ill. 2d
523, 529 (2004). Under Frye, scientific evidence is only admissible at trial if the
“methodology or scientific principle upon which the opinion is based is ‘sufficiently
established to have gained general acceptance in the particular field in which it belongs.’ ” In
re Commitment of Simons, 213 Ill. 2d at 529-30 (quoting Frye, 293 F. at 1014)). General
acceptance of a methodology “does not require that the methodology *** be accepted by
unanimity, consensus, or even a majority of experts.” In re Commitment of Simons, 213 Ill.
2d at 530; Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 76-77 (2002),
abrogated on other grounds by In re Commitment of Simons, 213 Ill. 2d at 530. The trial
court will apply the Frye test only if the scientific principle, technique, or test offered by the
expert to support his or her conclusion is new or novel. In re Marriage of Bates, 212 Ill. 2d
489, 519 (2004). Generally, a scientific technique is new or novel if it is original or striking
or does not resemble something formerly known or used. Donaldson, 199 Ill. 2d at 79. Under
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Frye, the court considers the general acceptance of a scientific methodology, not the
particular conclusions at issue in a particular case. People v. McKown, 226 Ill. 2d 245, 255
(2007). There is no “Frye-plus-reliability” test in Illinois, in which the court first determines
if the technique or methodology is accepted and then considers whether it is reliable. People
v. Nelson, 235 Ill. 2d 386, 431 (2009).
¶ 79 There is a dual standard of review regarding the admissibility of expert testimony. Abuse
of discretion review applies when the question is whether “an expert scientific witness is
qualified to testify in a subject area, and whether the proffered testimony is relevant in a
particular case.” In re Commitment of Simons, 213 Ill. 2d at 530-31. De novo review applies
when this court must determine “whether a Frye hearing is required and, if so, whether the
scientific technique at issue is generally accepted in the relevant scientific community.” In re
Commitment of Simons, 213 Ill. 2d at 530-31.
¶ 80 Here, prior to trial, defendant filed a motion requesting a Frye hearing on the
admissibility of the DNA evidence against him. By that motion he argued that, because the
rape kit and the original blanks and controls made by Dr. Benzinger were no longer
available, forensic scientist Anderson created new blanks and controls for testing. Defendant
claims this subsequent testing by Anderson, though consistent with scientific protocol at the
time of testing, was contrary to scientific protocol by the time of trial and, accordingly, was
impermissible. In part, the motion alleged:
“It has subsequently been learned that the Illinois State Crime Lab lost the
controls or blanks each of the original 3 fractions of DNA. However, a new
control or blank was manufactured and used. Such a method is no longer
acceptable under current protocols of the lab. This is the reasons [sic] that the Lab
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had refused to test the 3rd Fraction of DNA. Testing was performed on the First
[sic] two fractions under this not acceptable method of DNA testing. The analyst,
Cynara Anderson, who performed that testing and used new blanks or controls
has told Defense Counsel that she has no idea if it is generally accepted in the
scientific community, as required by Frye, to use the results of the previous
testing because the method used is not currently permitted as an acceptable
Forensic DNA testing procedure. Additionally, the original vitullo kit (rape kit)
has been lost or destroyed, so re-testing under generally accepted DNA testing
procedures is not an option.”
Defendant argues Anderson’s methodology was appropriate and accepted in 2005, but that
the FBI standards changed in 2009 to include more stringent rules regarding testing
procedures.
¶ 81 After a hearing on the motion, the trial court denied the request for a Frye hearing
regarding the DNA testing without the original blanks, stating: “Frye does not apply once
determined that the scientific method is generally accepted” and noting that “[t]here is no
Frye standard plus reliability standard, no independent evaluation of the theory or the
reliability once the general acceptance threshold has been met. Reliability comes from
general acceptance.” The court further explained that defendant’s arguments regarding the
DNA testing “goes to the weight, not the admissibility under Frye,” and that defendant’s
concerns could be addressed at trial through “vigorous cross-examination presentations of
contrary evidence such as expert testimony.” It stated, “[t]he Frye standard applies only if
scientific principle and technique or test offered is new or novel.”
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¶ 82 Although defendant argues on appeal that the DNA evidence should have been
inadmissible because the methodology used by Anderson was outdated at the time of trial
(but not at the time of testing), this argument is actually based on the trial court’s denial of
defendant’s motion requesting a Frye hearing. On appeal, defendant does not challenge the
trial court’s ruling and does not argue that the trial court abused its discretion in denying the
motion for a Frye hearing. Defendant did not preserve this issue by objecting at trial or
including it in his posttrial motion (Enoch, 122 Ill. 2d at 186), and he has not argued on
appeal that we should consider it based on plain error (Herron, 215 Ill. 2d at 186-87). We
therefore find this issue to be forfeited.
¶ 83 Even if the issue was not forfeited, however, and we considered it under a plain error
analysis, we would still find no error. See, e.g., Wilson, 404 Ill. App. 3d at 247 (“There can
be no plain error if there was no error at all ***.”). A Frye hearing is limited to situations
where the technique or test is new or novel, or, for example, where the scientific test does not
resemble a formerly known or used test. See In re Marriage of Bates, 212 Ill. 2d at 519 (trial
court will apply the Frye test only if the scientific principle, technique, or test offered by the
expert to support his or her conclusion is new or novel); Donaldson, 199 Ill. 2d at 79
(generally, a scientific technique is new or novel if it is original or striking or does not
resemble something formerly known or used). At the time she ran the test in 2005, Anderson
followed all relevant protocols. We find no error in the trial court’s determination that no
Frye hearing was required where the test and methodology used by Anderson was not new or
novel.
¶ 84 C. DNA Exclusion Based on Inadvertent Laboratory Spillage
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¶ 85 Next, defendant contends that the trial court erred when it denied his motion to exclude
the DNA evidence where a portion of the DNA material was spilled during laboratory
testing. He claims he was prejudiced because, had the evidence not been spilled, it is possible
the subsequent test on the remaining four DNA loci may have excluded him.
¶ 86 Defendant filed a motion for relief in conjunction with destruction of DNA or related
evidence, by which he sought, in pertinent part, to exclude the DNA evidence because of the
spillage. The court denied the motion after a hearing, finding that the evidence was not
materially exculpatory and that it was not destroyed in bad faith. Additionally, the court
admonished defense counsel that the use of the term “destroyed” was inappropriate, noting
that the evidence was not “destroyed in a bad faith sense or somebody just took something
and obliterated it. *** What we have here is something that’s spilled during a test requested
by the parties[.]”
¶ 87 As for the spill itself, forensic scientist Anderson described the spill at trial in the
following manner:
“A. [FORENSIC SCIENTIST ANDERSON:] There was an incident that
occurred during the application stage, during the preparation of amplification
stage.
Q. [ASSISTANT STATE’S ATTORNEY WEISS:] What happened
during the amplification stage?
A. When it was time for me to take my DNA and put it into my tubes to
amplify my F2 fraction, which is the sperm fraction of the vaginal swab, I
dropped that tube of DNA onto my exam paper. So I was able to put the required
amount of DNA into—there are two—so if I have a tube for F1, the DNA from
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my F1 tube will be split into two additional tubes for amplification. One tube will
give me nine loci, and the other tube will give me four loci.
So when I was preparing my samples to split them into their nine loci tube
and four loci tube, I dropped my tube of DNA, and it spilled on the paper.
So I did have some in my tube after some spilled out, so I was able to put
what I needed into the tube for the nine loci, but I had an undetermined amount
left over in that tube to put in the tube that would have given me four loci. So I
wasn’t sure of my target, but I know I put in less than what I needed in that
second tube.
Q. But you were able to obtain a test for the nine loci, correct?
A. Yes. I had more than enough for what I needed for the nine loci tube.
But I had an undetermined amount target for the four loci tube.
Q. Just so we’re clear, all these fractions F1, F2, F3, that’s all coming
from the sperm sample, correct?
A. From the vaginal swab of [T.C.].
Q. All coming from the vaginal swab?
A. Yes.
Q. And were there different samples or did you learn of different things
that were in the vaginal swab?
A. Yes, after amplification, the samples are ready to be put on another
instrument that will result in me having a DNA profile. So after amplification, I
set up that procedure and then I have a DNA profile.
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And it led to my non-sperm fraction having a profile matching [T.C.]. And
my sperm fraction having a profile of an unknown male profile. And then I also
verified that my blank was clean.
But the tube that was giving me four loci, it flat lined. I didn’t get
anything.
Q. But it’s not uncommon that you only have nine loci in cases, is it?
A. It’s not uncommon. Sometimes you may only end up with nine loci, not
because of just dropping a tube.”
¶ 88 Anderson acknowledged on cross-examination that she was only able to determine the
values at nine loci because she spilled the DNA, that she did not know the profile for the
additional four loci, and that if any of the remaining four loci did not match defendant, he
would be excluded as the offender. Specifically, she said:
“Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those
[remaining four un-resulted loci] is different than David Banks, then you could
say with scientific certainty that he is not the offender; is that correct?
A. [FORENSIC SCIENTIST ANDERSON:] That’s correct.
Q. But you don’t know what those are, correct?
A. That’s correct.
Q. In fact, you spilled that DNA on your table, correct?
A. That’s correct.”
¶ 89 The State relies on Arizona v. Younglood, 488 U.S. 51 (1988) (Stevens, J., concurring,
and Blackmun, J., dissenting, with Brennan and Marshall, JJ., joining), in support of its
argument that a defendant must show that the evidence was destroyed in bad faith in order
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for relief. In Youngblood, the defendant was convicted of child molestation, sexual assault,
and kidnapping. During the medical treatment of the victim, doctors collected evidence of the
attack using a sexual assault kit, including samples of blood, saliva, and hair. These samples
were refrigerated at the police station. The victim’s underwear and T-shirt, which contained
small amounts of semen, were also collected by the police but not refrigerated or frozen.
Youngblood, 488 U.S. at 52-53. Using the evidence from the sexual assault kit, a
criminologist determined that sexual contact had occurred, but he did not perform any other
tests. He replaced the kit in the refrigerator. Later, the criminologist was unable to obtain
conclusive results in testing the underwear and T-shirt due to the small quantity of semen
present. Youngblood, 488 U.S. at 54. At trial, the defendant argued that the victim had erred
in identifying him in a photographic lineup as the assailant. The trial court instructed the jury
that, if they found that the State had destroyed or lost the evidence, they might “infer that the
true fact is against the State’s interest.” (Internal quotation marks omitted.) Youngblood, 488
U.S. at 54. The jury found the defendant guilty, but the Arizona Court of Appeals reversed,
finding a violation of due process where the loss of the evidence was material to the defense.
Youngblood, 488 U.S. at 54.
¶ 90 The United States Supreme Court considered the extent to which the due process clause
of the fourteenth amendment requires the State to preserve evidentiary material that might be
useful to a criminal defendant. Considering the “ ‘area of constitutionally guaranteed access
to evidence,’ ” the Youngblood court reversed, finding that the defendant was required to
demonstrate bad faith on the part of the State in the destruction or loss of the evidence.
Youngblood, 488 U.S. at 55 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). The Court found that the due process clause “required a different result when we
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deal with the failure of the State to preserve evidentiary material of which no more can be
said than it could have been subjected to tests, the results of which might have exonerated the
defendant.” Youngblood, 488 U.S. at 57. The Court justified the difference in treatment
between a situation in which the State fails to disclose to the defendant material, exculpatory
evidence, and a situation where potentially exculpatory evidence is permanently lost, as
necessary in order to avoid placing on the courts the “ ‘treacherous task of divining the
import of materials whose contents are unknown and, very often, disputed’ ” (Youngblood,
488 U.S. at 58 (quoting California v. Trombetta, 467 U.S. 479, 486 (1984))) and placing on
the police an absolute duty to retain and preserve material that might be of conceivable
evidentiary significance in a particular prosecution. Youngblood, 488 U.S. at 58. The
Youngblood Court held that “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a denial of due
process of law.” Youngblood, 488 U.S. at 58. The court characterized the failure of the police
to refrigerate the clothing and to perform tests on the semen samples as negligent, at worst,
and in the absence of bad faith, no violation of the due process clause occurred. Youngblood,
488 U.S. at 58.
¶ 91 In Illinois, our supreme court has held that there was no due process violation where there
was no demonstration of bad faith by the State when the evidence in question—the
defendant’s vehicle—was lost or destroyed before trial. People v. Sutherland, 223 Ill. 2d 187,
237 (2006). The Sutherland court, guided by Youngblood, held that the defendant “failed to
offer anything, other than mere speculation, demonstrating bad faith by the State.”
Sutherland, 223 Ill. 2d at 237.
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¶ 92 Here, we find no error by the trial court in requiring a showing of bad faith by the
defendant before it would exclude the DNA evidence. Where, as here, the evidence in
question is not exculpatory, a defendant must show bad faith in failing to preserve the
evidence. Youngblood, 488 U.S. at 58 (“unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law”). Defendant offers nothing but mere speculation to demonstrate
bad faith by the State. In fact, there is no demonstration here of anything other than an
inadvertent spill by a scientist who then was able to complete the 9-loci sample (also known
as the Pro-filer component) with a match to defendant, and attempted to complete the other
4-loci sample (also known as the Co-filer component), which ended with no results. This, as
the trial court explained, was a mere accident and was absent of bad faith. Where defendant
could not show that the spilled DNA evidence was materially exculpatory, and could not then
fulfill his burden to show bad faith in the loss or destruction of the DNA evidence, the failure
to preserve the evidence did not constitute a due process violation under Youngblood, and the
exclusion of the evidence was not necessary.
¶ 93 We note here with some concern that defense counsel on appeal, who, as he should,
argues vigorously in defense of defendant, goes beyond what appears to be the truth in this
particular argument. In his opening brief, he argues that the State “botch[ed] the Co-Filer
test” and this spill “consumed all the remnants [of the DNA sample] usable for testing.” This
is belied by the record, however, which shows that on August 4, 2011, the trial court ordered
additional DNA analysis on the DNA extract that remained from the vaginal swabs.
¶ 94 Additionally, we acknowledge defendant’s concern that this ruling puts him in a logically
inconsistent, difficult position in which, to obtain a remedy for the absence of testing, he first
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must obtain the testing, or know and be able to demonstrate the outcome of the testing. While
we recognize this concern, defendant does not offer this court any authority by which we
should disregard the established authority discussed herein. Under Youngblood and
Sutherland, defendant’s claim is unavailing.
¶ 95 We find that the trial court properly denied defendant’s motion to exclude the DNA
evidence based on the loss of DNA material during testing.
¶ 96 D. Limiting the Questioning of the DNA Expert at Trial
¶ 97 Next, defendant claims the trial court erred when it limited the defense in its cross-
examination of forensic scientist Anderson at trial. Specifically, defendant argues that the
trial court should have allowed defense counsel to question Anderson regarding database
searches done in Illinois and Arizona regarding a determination of how many 9-loci matches
exist within an offender database. Defendant believes he merits a new trial where he was
denied the ability to meaningfully challenge the scientific evidence presented by the State.
¶ 98 Initially, the State argues that, although defendant filed a motion for DNA testing prior to
trial, he later withdrew that motion (as discussed in the background section, above).
Therefore, the State claims that this motion is no longer in at issue. Defendant admits the
motion was withdrawn when defense counsel “received what he believed was adequate data
for his purposes.” Defendant, however, responds that the State’s analysis elevates form over
substance where, as here, the issues at question were further dealt with during the trial. We
agree with the State that defendant can no longer argue specific to the withdrawn motion, but
also agree with defendant that the issues “were put back in play by the State” when the State
sought at trial to bar cross-examination of its expert due to her unfamiliarity with specific
studies on 9-loci match frequencies.
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¶ 99 During trial but before the presentation of testimony by the forensic scientists, the State
asked the court to preclude questions regarding searches done of the offender sections of the
Arizona and Illinois databases where 9-loci matches were examined. The following colloquy
occurred outside the presence of the jury:
“[ASSISTANT STATE’S ATTORNEY MARY LACY:] Judge, the third
witness Cynara Anderson who is going to testify about DNA results in this case,
counsel informs us he wants to ask the witness about studies done on an Arizona
database, an Illinois database where nine loci matches were examined.
She has no knowledge about such studies and the results of the studies. So
we ask—aside which they’re irrelevant. So we would ask that that question not
occur.
THE COURT: [Public Defender] Mr. Anderson, when I sustained the
objection previously, this can be on the record, you’re asking somebody
something they have no knowledge of.
***
I don’t know if [Anderson] is aware of the Arizona studies or the Illinois
studies on nine loci, whether she has read them or not. But certainly if she is not
aware and hasn’t read them, she can’t be asked about them.
[PUBLIC DEFENDER ANDERSON:] I think what the State had talked to
me about was that they didn’t want the substance of these studies coming out
because she didn’t know about them. Obviously, I’m not going to bring out
something that the witness is unaware of because it wouldn’t be in evidence.
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But I intend to ask, and I think I have a right to ask her, if she is aware of
any studies about nine loci matches in the actual population, or if she looked into
whether there are such studies.
THE COURT: When you say studies, do you have [a] specific study
you’re going to ask her about or are you asking about studies—just the general
term studies?
[PUBLIC DEFENDER ANDERSON:] In fact, there are three studies.
There is Arizona, there is Illinois, which is a little surprising she is not aware of
that one and—
THE COURT: She’s not aware of Arizona and not aware of Illinois.
[PUBLIC DEFENDER ANDERSON:] And there is Maryland.
***
But the fact that she is holding herself out as an expert in DNA and
matches in database and hasn’t even looked to see how many people actually
match at nine, I think that is relevant that she hasn’t even looked.
***
THE COURT: If she’s unaware of Illinois, Maryland and Arizona, those
are the three studies you’re talking about, if she is unaware of something, how can
you question her on it?
[PUBLIC DEFENDER ANDERSON:] If she has even looked is the
question.
***
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The State has told me, and I will accept their representation, that she
doesn’t know about this. This goes to her ability to—this goes to her qualification
as an expert. A person who is an expert in the field of DNA, forensic DNA who is
testifying about a partial nine loci match who has made no effort to see what the
results of that are in the actual population I think is relevant that the expert makes
no efforts—
THE COURT: Let me ask you this. If you ask her if she has looked at
these three studies and she says no, are you prepared to prove up those studies
exist?
***
Because we’re not going to leave a question hanging where someone
didn’t look at something and they’re being held not knowing what those things
say.
You say you’re not bringing the results. So what is the jury going to get
out of this? You’re setting up a straw person to knock them down. Have you
looked at this study, this study, or this study? No, no, no. Then what are you
going to argue? She doesn’t even look at studies.
[PUBLIC DEFENDER ANDERSON:] Judge, it’s not a straw person. The
fact of the matter is she is unaware of actual studies that exist. I’m not making this
up. There are studies. I have a good faith basis for asking this. There are actual
studies.
THE COURT: If you want to ask her if she is aware of these studies and
she can give an answer yes or no[.]”
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Ultimately, the court accepted defense counsel’s representations that he would simply ask
Anderson if she was aware of the existence of the studies and, if she answered yes, then ask
if she was aware of the results on 9-loci matches. The court specifically ruled that defense
counsel could ask “whatever foundational questions you want to ask” about whether the
expert was “aware” of the searches or “looked” at the searches. Defense counsel, however,
did not ask Anderson the two questions the court would allow.
¶ 100 We first address the applicable standard of review. Defendant urges this court to employ
a de novo standard, arguing that this is a review of a motion for forensic testing. The State
responds that the proper standard is abuse of discretion, as the motion itself was withdrawn
and the argument now applies only to the court’s ruling limiting the cross-examination of
forensic scientist Anderson. We agree with the State. “Clearly, the scope and extent of cross-
examination and re-cross-examination are within the discretion of the court.” Adams v. Sarah
Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998 (2007) (citing People v. Kirchner, 194
Ill. 2d 502, 536 (2000)). “ ‘[C]ross-examination should be kept within fair and reasonable
limits, and it is only in a case of clear abuse of such discretion, resulting in manifest
prejudice to the defendant, that a reviewing court will interfere.’ [Citation.]” Adams, 369 Ill.
App. 3d at 998. As we are reviewing the propriety of the court’s limiting the scope of cross-
examination, we will apply an abuse of discretion standard.
¶ 101 Defendant’s argument here is based on the frequencies to which Anderson testified, that
is, that defendant’s DNA would be expected to occur in 1 in 52 million black males. He
concedes that the frequencies in this case were calculated using generally accepted
methodology, and acknowledges our supreme court’s decision in People v. Miller, 173 Ill. 2d
167 (1996)), which first approved of the use of the statistical method (known as the product
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rule) which was used in this case. He argues, however, that the circuit court’s rulings, which
“effectively barred inquiry into the questionability of 9-loci matches,” gave too much weight
to the match.
¶ 102 To support his claim, defendant relies in People v. Wright, 2012 IL App (1st) 073106, to
argue that the results of offender database searches call the reliability of the frequency
calculations in this case into question. In Wright, a different division of this court discussed
the merits of DNA analysis in court procedures. In Wright, the cold-case DNA evidence
constituted essentially the sole evidence used to identify the defendant from a felony
database as the perpetrator of a sexual assault where the victim could not identify her
attacker. Wright, 2012 IL App (1st) 073106, ¶ 81. Addressing the trial court’s error in failing
to order, pursuant to a section 116-5 (725 ILCS 5/116-5 (West 2006)) motion, a pretrial 9-
loci analysis between his DNA and a male DNA profile obtained from the victim’s rectal
swabs, the Wright court ultimately reversed and remanded for a new trial. Wright, 2012 IL
App (1st) 073106, ¶ 132.
¶ 103 The Wright majority acknowledged the fact that they were not asked to determine
whether the expert’s conclusion of a “match” based on only nine loci was correct but,
instead, they had been asked to determine whether the trial court abused its discretion in
denying the defense the ability to investigate and impeach that conclusion. Wright, 2012 IL
App (1st) 073106, ¶ 86. The court stated:
“The dangers of partial matches have been known for over a decade. For
example, in a highly publicized English case, Raymond Easton was charged in
1999 with burglary after police had a ‘ “cold hit” ’ with his DNA in a database.
Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67
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Brook. L. Rev. 13, 49-50 (2001); Allison Pari, Note, An International DNA
Database: Balancing Hope, Privacy, and Scientific Error, Note, 24 B.C. Int’l &
Comp. L. Rev. 341, 368-69 (2001). His DNA ‘matched’ the DNA from the crime
scene at six loci. Since British police estimated that there was only a 1 in 37
million chance that such a match would occur at random, he was charged with
burglary. Mnookin, supra, at 50; Pari, supra, at 368-69. When Easton, who had
advanced Parkinson’s disease, had an alibi, the police ran a test at more loci and
discovered that his DNA did not match at all. Mnookin, supra, at 50; Pari, supra,
at 368-69. The charges were, of course, dropped. Mnookin, supra, at 50; Pari,
supra, at 368-69.
As a result of the Arizona, Maryland and Illinois searches, some legal
scholars and scientists have questioned whether the extraordinarily large figures
used in court to estimate the probability of a nine-loci “match” are “no better than
alchemy.” David H. Kaye, Trawling DNA Databases for Partial Matches: What
Is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol’y 145, 146 (2009); Strutin,
supra, at 54 (after the Arizona, Maryland and Illinois searches, ‘academics and
experts have added their voices in calling for access to the DNA databanks to test
the assumptions of profile rarity’). For example, a Stanford mathematician has
called these numbers ‘ “total nonsense” ’ and ‘ “a damned lie.” ’ Kaye, supra, at
148 (quoting Keith Devlin, Damned Lies, Mathematical Association of America
(2006), available at http://www.maa.org/devlin/devlin_10_06.html.). He has
stated that admitting this testimony into court is ‘ “disgraceful,” ’ and that courts
‘ “may as well admit alchemy and astrology.” ’ Kaye, supra, at 147 (quoting
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Keith Devlin, Damned Lies, Mathematical Association of America (2006),
available at http://www.maa.org/devlin/devlin_10_06.html.).
Although the trial court in the case at bar was not presented with the
results of the Maryland or Illinois searches, the trial court did have in front of it a
report from the search of the Arizona database, which revealed 120 pairs of 9-loci
‘matches’ in a database of 65,493 offenders. 19 Cornell Kaye, supra, at 154-55
(describing how the Arizona study was conducted and its results). As one legal
scholar has asked, if the frequency ‘for a nine-locus match is anything like “one in
754 million for whites, and one in 561 million for blacks” [as some DNA experts
testify], how can it be that a database as small as [Arizona’s with] “a mere 65,493
entries” produces even one such match?’ Kaye, supra, at 155; Erin Murphy, The
New Forensics: Criminal Justice, False Certainty, and the Second Generation of
Scientific Evidence, 95 Calif. L. Rev. 721, 781 (2007) (‘recent evidence calls into
question the accuracy of using the product rule to convey match probabilities’).
We have not been asked to determine whether the expert’s conclusion of a
‘match’ based on only nine-loci was correct. We have been asked to determine
whether the trial court abused its discretion in denying the defense the ability to
investigate and impeach this conclusion. Considering that a nine-loci analysis was
the primary identification evidence against defendant, the trial court abused its
discretion by denying defendant’s motion. Cf. People v. Watson, 2012 IL App
(2d) 091328, ¶ 25 (defense counsel was ineffective for failing to probe the
statistical meaning of a seven-loci ‘match’ when plenty of arguments and
evidence were available).” Wright, 2012 IL App (1st) 073106, ¶¶ 83-86.
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¶ 104 A different division of this court disagreed with the holding in Wright and found it
unpersuasive. See People v. Crawford, 2013 IL App (1st) 100310. The Crawford court
considered, in part, the question of whether a defendant was denied the effective assistance of
trial counsel where counsel failed to convey to the jury the significance of a partial DNA
match. Crawford, 2013 IL App (1st) 100310, ¶ 123. The Crawford court found that the
theories relied upon by the Wright majority regarding the significance of the offender
database searches have been discredited. Specifically, the Crawford defendant argued, in
part, that he was denied the effective assistance of trial counsel because counsel failed to
cross-examine the DNA expert in such a way that the expert would “explain why the
frequency of the evidentiary profile was not as unique as she suggested.” Crawford, 2013 IL
App (1st) 100310, ¶ 128. The court held there was no ineffective assistance of counsel where,
in part:
“defendant’s complaints regarding the failure to argue with respect to an alleged
search of the Illinois DNA database that revealed nearly 2,000 profiles that
matched at nine loci has been discredited. As defendant’s own source explains,
these database trawls seek all possible pairs in a database (rather than one specific
nine-loci grouping), which result in a staggering number of comparisons. See
David H. Kay, Trawling DNA Databases for Partial Matches: What Is the FBI
Afraid of?, 19 Cornell J.L. & Pub. Pol’y 145, 157 (2009). For example, if the
database for the state of Arizona contains 65,493 entries, a comparison search
would produce over 2 billion distinct pairs. Id. A search for 9 loci or more out of
13 loci (or, 715 distinct combinations of 9 items out of 13) would produce 1.5
trillion ‘opportunities to find nine-locus matches’ within the Arizona database. Id.
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Applying the same methodology to defendant’s asserted claim of 220,456 profiles
in the Illinois database would result in 24.3 billion distinct pairs and a
corresponding 17.4 trillion opportunities to find 9-locus matches out of 13-loci. If,
as defendant claims, there were ‘903 pairs of profiles matching at 9 loci,’ that
probability would be vanishingly small when compared with 17.4 trillion possible
pairs, and trial counsel’s argument as to this point would not have been of even
arguable merit.” Crawford, 2013 IL App (1st) 100310, ¶ 133.
Because counsel could not be ineffective for making a “fruitless argument,” the Crawford
court concluded that trial counsel could not have been ineffective for failing to hire an expert
and develop an argument that the offender database searches impeached the statistics in that
case. Crawford, 2013 IL App (1st) 100310, ¶ 133.
¶ 105 We disagree with defendant’s assertion that Wright is “precisely on point.” Specifically,
the Wright majority opinion does not demand a trial court allow cross-examination of a DNA
expert regarding a potential database search in all cases involving partial DNA profiles.
Rather, in a fact-specific analysis, the Wright court held that, where the Wright defendant had
fully preserved the issue for appeal, and where the expert had been provided the specific
study in question for review prior to trial, and the State had already obtained a favorable
ruling on the motion in limine on that specific issue, the trial court erred in “barring any
questions about [the study]” (Wright, 2012 IL App (1st) 073106, ¶ 132). Here, in contrast,
the State had not obtained a favorable ruling on the motion in limine, but instead, defense
counsel had withdrawn the motion of its own accord, and, importantly, the trial court did not
bar all questions about the study. Rather, as defendant concedes on appeal, the trial court
specifically ruled that defense counsel could ask “whatever foundational questions you want
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to ask” about whether the expert was “aware” of the searches or “looked” at the searches.
Defense counsel, however, failed to take advantage of this opportunity and did not ask the
expert questions about the database searches. For these reasons, Wright does not offer
assistance to the case at bar.
¶ 106 We find no abuse of discretion here, where the trial court properly limited the cross-
examination of the DNA expert to subjects relevant to the case and to her expertise, and the
DNA expert employed an approved statistical method when she calculated the DNA
frequencies.
¶ 107 In summary, we find no error in the admission of DNA evidence at trial.
¶ 108 II. Other Crimes Evidence
¶ 109 Next, defendant contends he was deprived a fair trial where the court allowed the
“misuse” of his prior criminal record. Specifically, defendant argues that the jury was
misinformed as to the proper way to use evidence of prior convictions because the jury
instructions provided them did not draw a distinction between a conviction adduced for
impeachment purpose and one adduced for propensity purposes. To be clear, defendant does
not contest the admission of the other crimes evidence at trial. Rather, defendant claims that
the instructions provided to the jury in this case were both inadequate and incorrect in that
they did not explicitly include the names of the offenses for which defendant was previously
convicted. We disagree.
¶ 110 Initially, we note that defendant failed to preserve this issue for review where he neither
objected at trial nor included this issue in his posttrial motion. See Thompson, 238 Ill. 2d at
611-12 (“To preserve a claim for review, a defendant must both object at trial and include the
alleged error in a written posttrial motion.”) (citing Enoch, 122 Ill. 2d at 186-87). “Generally,
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a defendant forfeits review of any supposed jury instruction error if he does not object to the
instruction or offer an alternative at trial and does not raise the issue in a posttrial motion.”
People v. Downs, 2015 IL 117934, ¶ 13. This encourages a defendant to raise issues before
the trial court, “thereby allowing the court to correct its errors before the instructions are
given, and consequently precluding a defendant from obtaining a reversal through inaction.”
Downs, 2015 IL 117934, ¶ 13 (citing Piatkowski, 225 Ill. 2d at 564). However, “substantial
defects” in criminal jury instructions are not waived by the failure to object “if the interests
of justice require.” Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). Rule 451(c) is coextensive with
the plain error clause of Illinois Supreme Court Rule 615(a) and is construed identically.
Piatkowski, 225 Ill. 2d at 564. As noted previously, the plain error doctrine allows a
reviewing court to consider unpreserved error “when (1) a clear or obvious error occured and
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
occured and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
Piatkowski, 225 Ill. 2d at 565. Under the plain error rule, we consider whether any error has
occurred at all. Lewis, 234 Ill. 2d at 43; Wilson, 404 Ill. App. 3d at 247 (“There can be no
plain error if there was no error at all ***.”). This requires a “substantive look” at the issue
raised. People v. Johnson¸ 208 Ill. 2d 53, 64 (2003). We will therefore first review
defendant’s claim to determine if there was any error before considering it under plain error.
¶ 111 “The purpose of jury instructions is to provide the jury with the correct legal principles
applicable to the evidence, so that the jury may reach a correct conclusion according to the
law and the evidence.” People v. Bannister, 232 Ill. 2d 52, 81 (2008). It is sufficient if the
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instructions given to the jury, considered as a whole, fully and fairly announce the applicable
law. Bannister, 232 Ill. 2d at 81; People v. Mohr, 228 Ill. 2d 53, 65 (2008) (On review, the
question is whether the instructions, considered as a whole, fully and fairly announce the law
applicable to the theories of the parties). Supreme Court Rule 451(a) requires that, where a
court in a criminal case determines that the jury should be instructed on a subject, and the
Illinois Pattern Jury Instructions contains an applicable instruction, then the IPI “ ‘shall’ be
given unless the court determines it does not accurately state the law.” People v. Durr, 215
Ill. 2d 283, 301 (2005) (citing Ill. S. Ct. R. 451(a) (eff. July 1, 1997)).
¶ 112 A trial court’s decision regarding jury instructions and verdict forms is reviewed under an
abuse of discretion standard. People v. Battle, 393 Ill. App. 3d 302, 313 (2009) (citing People
v. Jones, 175 Ill. 2d 126, 131-32 (1997)). It is within the discretion of the trial court to
determine the applicability of specific jury instructions. People v. Castillo, 188 Ill. 2d 536,
540 (1999).
¶ 113 Here, the trial court allowed the State to present evidence that defendant committed a
sexual assault against G.R. in 1984 as relevant to defendant’s propensity to commit sexual
attacks, motive, and intent. Prior to trial, the State filed a motion in limine seeking to
introduce evidence of a prior crime at trial, that is, a 1984 sexual assault, as relevant to the
issues of defendant’s propensity to commit sexual attacks and to motive and intent, as two of
the murder counts on trial were predicated on the alleged sexual assault of T.C. After hearing
arguments from the parties, the court allowed evidence of the prior sexual assault as evidence
of defendant’s propensity to commit sexual attacks, motive, and intent, as two of the murder
counts on trial were predicated on the alleged sexual assault of T.C. Specifically, the court
determined:
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“It is clear that in viewing the proof of other crimes sought to be admitted,
it’s relevant to the issues of defendant’s propensity to commit sexual attacks and
to motive and intent. The statute [and] case law mandates this Court to allow the
People to present evidence of other crimes discussed above.”
¶ 114 During trial and prior to presenting the testimony of G.R., the trial court instructed the
jury:
“Ladies and gentlemen, in a moment evidence will be received that the
Defendant has been involved in an incident other than those charged in the
indictment before you. This evidence will be received on the issue of Defendant’s
propensity. And may be considered by you only for that limited purpose.”
¶ 115 The court also allowed evidence of the 1990 murder conviction “for the very limited
purpose” of impeachment in the event defendant were to testify. Specifically, after defendant
testified, the State entered a certified copy of defendant’s conviction for murder. The trial
court advised the jury:
“Evidence of the Defendant’s previously [sic] conviction of an offense
may be considered by you only as it may affect his believability as a witness, and
must not be considered by you as evidence of his guilt of the offense with which
he is charged.”
¶ 116 At the close of trial, the court instructed the jury regarding the presumption of innocence.
It then instructed the jury, in pertinent part:
“Any evidence that was received for a limited purpose should not be
considered by you for any other purpose.
***
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Evidence of a defendant’s previous conviction of an offense may be considered
by you only as it may affect his believability as a witness and must not be
considered by you as evidence of his guilt of the offense with which he is
charged.
Evidence has been received that the Defendant has been involved in an
offense other than those charged in the indictment. This evidence has been
received on the issue of the Defendant’s propensity and may be considered by you
only for that limited purpose. It is for you to determine what weight should be
given to this evidence on the issue of propensity.”
¶ 117 The jury instructions with which defendant is concerned are Illinois Pattern Jury
Instructions, Criminal, No. 3.13 and No. 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th
No. 3.13 and No. 3.14) IPI Criminal 4th No. 3.13 states:
“Evidence of a defendant’s previous conviction of an offense may be
considered by you only as it may affect his believability as a witness and must not
be considered by you as evidence of his guilt of the offense with which he is
charged.” IPI Criminal 4th No. 3.13.
There is no blank in IPI Criminal 4th No. 3.13 to insert the name of the offense of which the
defendant was previously convicted.
¶ 118 IPI Criminal 4th No. 3.14 states:
[1] Evidence has been received that the defendant[s] [(has) (have)] been
involved in [(any offense) (offenses) (conduct)] other than [(that) (those)] charged
in the [(indictment) (information) (complaint)].
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[2] This evidence has been received on the issue[s] of the [(defendant’s)
(defendants’)] [(identification) (presence) (intent) (motive) (design) (knowledge)
(_________)] and may be considered by you only for that limited purpose.
[3] It is for you to determine [whether the defendant[s] [(was) (were)]
involved in [(that) (those)] [(offense) (offenses) (conduct)] and, if so,] what
weight should be given to this evidence on the issue[s] of ________.” (Emphasis
added.) IPI Criminal 4th No. 3.14.
¶ 119 As given, IPI Criminal 4th No. 3.14 states:
Evidence has been received that the defendant has been involved in an
offense other than those charged in the indictment.
This evidence has been received on the issue of defendant’s propensity
and may be considered by you only for that limited purpose.
It is for you to determine what weight should be given to this evidence on
the issue of propensity.
Like IPI Criminal 4th No. 3.13, IPI Criminal 4th No. 3.14 does not have a blank in which
parties or the court can insert the name of the offense in which the defendant was involved.
¶ 120 Here, each instruction given the jury was taken from the Illinois Pattern Jury Instructions,
and each accurately stated the law. Accordingly, the instructions comported with Supreme
Court Rule 451(a), which requires that, where a court in a criminal case determines that the
jury should be instructed on a subject, and the Illinois Pattern Jury Instructions contains and
applicable instruction, then the IPI “ “shall’ be given unless the court determines it does not
accurately state the law.” Durr, 215 Ill. 2d at 301 (2005) (citing Ill. S. Ct. R. 451(a) (eff. July
1, 1997)). In addition, the oral instructions given by the court at the close of the case matched
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the IPI instructions. Moreover, as noted above, the court repeatedly informed the jury that the
other crimes were being admitted for limited purposes. Specifically, the court told the jury
immediately prior to G.R.’s testimony that her testimony was received only on the issue of
defendant’s propensity, and, when the State introduced a certified copy of defendant’s prior
murder conviction, the court informed the jury that the evidence was to be considered only as
it may “affect [defendant’s] believability as a witness, and must not be considered by you as
evidence of his guilt of the offense with which he is charged.” These jurors, who were
properly instructed by the trial court, are presumed to follow their instructions. See, e.g.,
People v. Wilmington, 2013 IL 112938, ¶ 49 (“Absent some indication to the contrary, we
must presume that jurors follow the law as set forth in the instructions given them.”).
¶ 121 We find no error here, where, when considered as a whole, the jury instructions in this
case fully and accurately informed the jury of the applicable law, and the court carefully
instructed the jury throughout the trial and at the close of trial that the other crimes evidence
was to be considered for particular, limited purposes.
¶ 122 Defendant also contends he was denied the effective assistance of trial counsel where his
counsel did not tender alternative instructions to the jury. Specifically, defendant claims
counsel should have tendered modified other crimes instructions that specifically identified
defendant’s previous crimes and the purpose for which each was allowed into evidence.
Defendant urges that the proper instructions would have been:
“Evidence of a Defendant’s previous conviction on the offense of murder
may be considered by you only as it may affect his believability as a witness and
must not be considered by you as evidence of his guilt of the offenses with which
he is charged.”
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And:
“Evidence has been received that the Defendant has been involved in a
prior sexual assault. This evidence has been received on the issue of Defendant’s
propensity and may be considered by you only for that limited purpose. It is for
you to determine what weight should be given to this evidence on the issue of
propensity.”
¶ 123 Every defendant has a constitutional right to the effective assistance of counsel. See U.S.
Const., amends VI, XIV; Ill. Const. 1970, art. 1, § 8. Claims of ineffective assistance of
counsel are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984). People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). To establish a claim
of ineffective assistance of counsel, a defendant must show that his attorney’s representation
fell below an objective standard of reasonableness and that he was prejudiced by this
deficient performance. Strickland, 466 U.S. at 687-88; Albanese, 104 Ill. 2d 504. Failure to
make the requisite showing of either deficient performance or sufficient prejudice defeats the
claim. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). To satisfy the first prong, a
defendant must overcome the presumption that contested conduct which might be considered
trial strategy is generally immune from claims of ineffective assistance of counsel. People v.
Martinez, 342 Ill. App. 3d 849, 859 (2003). To establish prejudice, a defendant must show
there is a reasonable probability that, but for counsel’s insufficient performance, the result of
the proceeding would have been different. People v. Easley, 192 Ill. 2d 307, 317 (2000).
Specifically, the defendant must show that counsel’s deficient performance rendered the
result of the proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18.
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¶ 124 Defendant’s claim in this regard fails because, as noted above, he was not prejudiced as a
result of the jury not receiving modified instructions. In addition, defendant’s claim fails
because he is unable to overcome the presumption that the contested conduct was not sound
trial strategy, where counsel could have reasonably made the sound strategic determination
not to focus the jury’s attention on defendant’s prior crimes. See People v. Johnson, 368 Ill.
App. 3d 1146, 1161 (2006) (Defendant was unable to show his trial counsel was ineffective
where counsel failed to request a limiting instruction for other-crimes evidence because
“[c]ounsel may have made a tactical decision not to request such an instruction to avoid
unduly emphasizing the other-crimes evidence.”).
¶ 125 III. Defendant’s Invocation of His Right to Remain Silent and His Request for Counsel
¶ 126 Next, defendant contends the trial court erred in denying his motion for a mistrial based
on Lieutenant Wojcik’s testimony on cross-examination that all questioning of defendant
ceased when defendant asked for a lawyer. Defendant contends this error “places an
impermissible cost on the exercise of constitutional rights, and severely prejudices
[defendant’s exercise of his rights] and the provision of a fair trial.” We disagree.
¶ 127 The record in this matter reveals that, after defendant was provided with his Miranda
rights, defendant made an oral statement regarding the crimes. Although he did not admit in
this statement that he was the perpetrator of the crimes, he admitted to familiarity with the
apartment complex and the murder victim Soucy, admitted he worked in the nearby area,
admitted he was in Soucy’s apartment when he got angry and “blacked out,” only awaking
mentally as he was fleeing the burning building, with his hair singed from fire. This
statement was presented by Lieutenant Wojcik and assistant State’s Attorney Bowden at trial
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as an inculpatory statement. Defendant subsequently declined to memorialize that statement
when he asked for an attorney.
¶ 128 On cross-examination at trial, defense counsel asked Lieutenant Wojcik why he did not
request a court reporter to record defendant’s statement. Wojcik responded:
“[B]ecause at a certain point the defendant asked for an attorney, so we
didn’t get to that point where we would have called for a court reporter.
***
*** [I]t would have been—when I got done talking to him it was about
4:15. I want to say it was some time around a little bit after 5:00 o’clock or so
when he asked for an attorney. When I was in there with the State’s Attorney was
the first time he asked for an attorney.”
Lieutenant Wojcik explained that it was not his job to call a court reporter, but rather that was
the responsibility of the State’s Attorney. He said:
“The State’s Attorney would make [the decision to call a court reporter] in
consult with [defendant] if he was willing to do that, but while the State’s
Attorney was speaking to [defendant] he requested an attorney. So at that time all
conversation stops.”
¶ 129 The trial court then held a sidebar in chambers, and defense counsel asked for a mistrial,
arguing that the witness repeatedly emphasized that defendant had requested an attorney. The
trial court asked defense counsel why he did not ask for a sidebar earlier, and defense counsel
replied, “Because I didn’t want to emphasize that he had brought it out[.]” The trial court
denied the motion for a mistrial, saying “what prompted the part about the attorney is
because you [defense counsel] asked him questions about why weren’t charges approved
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before the State’s Attorney got there,” and “the only logical answer he could say upon your
continuing questioning is, well, because he asked for an attorney. It was not brought out
volitiously [sic] by him. In my opinion it was brought out by your continuing questions for
that area.”
¶ 130 Cross-examination continued, and defense counsel asked Lieutenant Wojcik a series of
questions about what he did and did not do while questioning defendant. Specifically,
defense counsel asked a series of questions regarding why Wojcik did not drive defendant up
to Lawrence Avenue and drive around the neighborhood in order to locate the hair salon
where he allegedly had his hair cut after fleeing the fire. Wojcik answered that he tried to
find the salon, but did not drive defendant there to do so. Counsel again asked why, when
defendant allegedly had said the salon was in the neighborhood but was unsure of the street it
was on, Lieutenant Wojcik did not just drive him to Lawrence Avenue to find the salon.
Wojcik answered:
“Again, Counsel, I probably would have done that, but he asked for an
attorney, which means at that point everything—any conversations I was having
with him about the case had to stop, including putting him in a car and having him
to point locations out.”
¶ 131 At the close of Wojcik’s cross-examination, defense counsel renewed the motion for a
new trial, arguing that Lieutenant Wojcik had again mentioned defendant having asked for an
attorney. The trial court denied the motion, responding:
“The problem with this is the way you asked the question once it came out
once the charges were approved upon [the assistant State’s Attorney] arriving
there and it came out that he asked for an attorney and didn’t obviously want to
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talk to her without one, this was a natural response to a question about after he
was through talking putting him in the car and taking him somewhere and having
him find someone.
This is exactly what happens when you are not directing him to a
particular time. You simply asked a question. I just wanted you to make a record.
Your motion for a new trial is denied. This is the fourth time he stated he wanted
an attorney.”
¶ 132 Under Doyle v. Ohio, 426 U.S. 610, 619 (1976), it is error to comment on a defendant’s
post-arrest silence or his request for counsel. Doyle, 426 U.S. at 619. However, “ ‘Doyle
applies only when a defendant invokes his right to remain silent.’ ” People v. Velez, 388 Ill.
App. 3d 493, 508 (2009) (quoting People v. Patterson, 217 Ill. 2d 407, 445 (2005)). In
Illinois, once a defendant makes a post-Miranda oral statement, the introduction of evidence
that the defendant subsequently refused to memorialize that statement does not necessarily
violate the fifth amendment or conflict with the Doyle opinion. See, e.g., People v.
Christiansen, 116 Ill. 2d 96, 120 (1987) (recognizing that where a defendant fails to remain
silent after being apprised of his right to do so and instead makes oral statements, the
defendant has relinquished his rights under the fifth amendment and cannot claim that
testimony indicating he was unwilling to subsequently memorialize his oral statements
violated his right to remain silent); People v. Ruiz, 132 Ill. 2d 1, 16 (1989) (under
Christiansen, the State is allowed “to introduce, in its case in chief, evidence that a defendant
made an oral statement but refused to provide a written statement, on the theory that the
defendant did not exercise his right to silence”); People v. Lindgren, 111 Ill. App. 3d 112,
117 (1982) (“It is not error to elicit a complete recitation of police procedure, even if the
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recitation includes reference to a defendant’s exercise of his constitutional rights, so long as
the recitation is not argued to be indicative of guilt”).
¶ 133 Here, the evidence in question was not adduced in order to establish defendant’s guilt, but
was adduced in response to questioning as to why defendant’s statement was not
memorialized, as well as in regards to police procedure (e.g., why the officers did not take
defendant to the area of the crime and look for the hair salon in order to confirm defendant’s
statement). Aside from the cross-examination of Lieutenant Wojcik, there was no further
mention of defendant’s request for counsel, and the State did not reference the testimony in
its closing arguments. We find no error in the cross-examination testimony here.
¶ 134 Moreover, where we find no error in this cross-examination testimony, it follows that
defendant’s argument that he was denied the effective assistance of counsel where counsel
directed the cross-examination that brought out the comments regarding defendant’s
invocation of his fifth amendment rights also fails. Palmer, 162 Ill. 2d at 475-76 (failure to
make the requisite showing of either deficient performance or sufficient prejudice defeats the
claim).
¶ 135 IV. Ineffective Assistance of Trial Counsel
¶ 136 Finally, defendant contends he was denied the effective assistance of trial counsel where
counsel allegedly made a series of errors regarding the DNA evidence at trial. Defendant
claims he was prejudiced where counsel should have (1) thoroughly challenged forensic
scientist Anderson regarding the DNA spillage, (2) recognized and then explored the alleged
chain of custody violation, (3) asked the allowed two questions regarding the 9-loci database
searches, and (4) specifically requested the trial court follow the Wright decision. Defendant
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argues he merits a retrial where the combination of the above errors denied him a fair trial.
We disagree.
¶ 137 As noted above, to establish a claim of ineffective assistance of counsel, a defendant must
show that his attorney’s representation fell below an objective standard of reasonableness and
that he was prejudiced by this deficient performance. Strickland, 466 U.S. at 687-88;
Albanese, 104 Ill. 2d 504. Failure to make the requisite showing of either deficient
performance or sufficient prejudice defeats the claim. Palmer, 162 Ill. 2d at 475-76. To
satisfy the first prong, a defendant must overcome the presumption that contested conduct
which might be considered trial strategy is generally immune from claims of ineffective
assistance of counsel. Martinez, 342 Ill. App. 3d at 859. To establish prejudice, a defendant
must show there is a reasonable probability that, but for counsel’s insufficient performance,
the result of the proceeding would have been different. Easley, 192 Ill. 2d at 317. To do so,
the defendant must show that counsel’s deficient performance rendered the result of the
proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18.
¶ 138 As to defendant’s first claim, that he was denied the effective assistance of counsel where
counsel did not sufficiently challenge forensic scientist Anderson regarding the DNA
spillage, we disagree that counsel was ineffective where, even if counsel’s performance were
deficient, defendant would still be unable to show resulting prejudice. See, e.g., Palmer, 162
Ill. 2d at 475-76 (failure to make the requisite showing of either deficient performance or
sufficient prejudice defeats an ineffectiveness claim). Our review of the record shows that
trial counsel vigorously challenged Anderson’s testing and results, as well as the spillage of
the DNA material. For example, after the State brought out on direct examination that the
spill occurred, defense counsel elicited testimony on cross-examination that Anderson was
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only able to determine the values at nine loci because she spilled the DNA, that she did not
know the profile for the additional four loci, and that if any of the remaining four loci did not
match defendant, he would be excluded as the offender:
“Q. [PUBLIC DEFENDER ANDERSON:] *** If any one of those
[remaining four un-resulted loci] is different than David Banks, then you could
say with scientific certainty that he is not the offender; is that correct?
A. [FORENSIC SCIENTIST ANDERSON:] That’s correct.
Q. But you don’t know what those are, correct?
A. That’s correct.
Q. In fact, you spilled that DNA on your table, correct?
A. That’s correct.”
¶ 139 Defense counsel also thoroughly questioned Anderson regarding her education and
qualifications, eliciting testimony during her qualification as an expert regarding her training
in population genetics and DQ-Alpha testing. Counsel then argued in closing that Anderson
was not sufficiently trained in statistics. Additionally, counsel emphasized in closing
argument that the full profile was not known because of the spillage, telling the jury:
“That they’ve proven [their] case when their expert spills the rapist DNA,
and they don’t have a full profile and it’s because of what they did that they don’t
have it.”
Defense counsel in this case vigorously cross-examined Anderson regarding her background,
experience, qualifications, and the spill itself. Defendant cannot show a reasonable
probability that further cross-examination regarding the spill would have changed the result
at trial. See Easley, 192 Ill. 2d at 317 (to establish prejudice, a defendant must show there is a
71
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reasonable probability that, but for counsel’s insufficient performance, the result of the
proceeding would have been different). Defendant’s attempt to show that he was denied the
effective assistance of counsel fails.
¶ 140 Defendant’s argument that he was denied a fair trial where counsel failed to sufficiently
challenge the chain of custody also fails because, as we have determined inter alia, there was
no breakdown in the chain of custody. Defense counsel, therefore, was not ineffective for not
challenging the chain of custody of the DNA extracts where there was no breakdown in the
chain of custody.
¶ 141 Defendant’s claim that he was denied a fair trial where trial counsel should have asked
forensic scientist Anderson the two allowed questions regarding the Arizona and Illinois
database searches also fails for lack of resulting prejudice. As noted above, the trial court
heard arguments from the parties regarding whether or not Anderson could be examined
regarding the database searches. Ultimately, the court ruled that defense counsel could only
ask Anderson two questions regarding the studies of database searches: whether she was
aware of the studies’ existence and, if so, whether she was familiar with their contents. The
court expressly ruled that the substance of the searches would not be admissible. Defendant
now claims that trial counsel should have asked the two allowed questions and then called its
own expert, Donald Parker, who works in the Illinois State Police forensic sciences
command DNA indexing laboratory, as a witness to testify about the results of the search of
the Illinois offender database. Defendant, as noted above, concedes that the frequencies in
this case were calculated using generally accepted methodology, and acknowledges our
supreme court’s decision in Miller, 173 Ill. 2d 167, which first approved of the use of the
statistical method (known as the product rule) which was used in this case. Even if Parker
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had been called to testify in this case, he would have been limited to reciting the results of the
searches; he would not have been able to testify that those search results in any way called
into question the DNA frequencies testified to by Anderson in this case because the DNA
results in this case were calculated in accordance with generally accepted methodology.
Defendant’s ineffective assistance argument fails where he is unable to show resulting
prejudice.
¶ 142 Finally, defendant’s argument that trial counsel was ineffective where, “had defense
counsel simply asked the circuit court to comply with this court’s decision in Wright, the
result would necessarily have changed,” also is unavailing where counsel did, in fact, ask the
court to follow Wright. For example, in his May 20, 2010, motion for DNA database search,
defense counsel stated, in part:
“8. Wherefore, defendant requests the following DNA database searches
pursuant to 725 ILCS 5/116-5 and People v. Wright, 2010 Ill. App. LEXUS 245
(Ill. App. 1st Dist., 2010) (reversible error for trial court failing to grant
defendant’s motion for a DNA Database Search in a 9 loci match case) ***.”
The State filed a response to that motion, and defense counsel filed a reply in which he again
cited Wright and asked the court to follow it. Counsel is not ineffective for failing to “simply
ask” the court to comply with a particular case when the record clearly shows that trial
counsel did precisely that. Defendant, therefore, cannot show resulting prejudice, and his
ineffective assistance of counsel argument is unavailing.
¶ 143 CONCLUSION
¶ 144 For all of the foregoing reasons, the decision of the circuit court of Cook County is
affirmed.
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¶ 145 Affirmed.
74
| {
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s
Fourth Court of Appeals
San Antonio, Texas
February 7, 2014
No. 04-13-00319-CV
Albert Ralph VELASQUEZ, Associated Transportation Services, LLC, and P5 Management
Group,
Appellants
v.
Lisa RAMIREZ,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-00229
Honorable Larry Noll, Judge Presiding
ORDER
The Appellant’s Motion for Extension of Time to File Reply Brief is GRANTED. The
appellant’s reply brief is due on February 14, 2014.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 7th day of February, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
| {
"pile_set_name": "FreeLaw"
} |
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