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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
SJC-12039
COMMONWEALTH vs. CESAR SANTANA.
Essex. January 10, 2017. - August 17, 2017.
Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Hearsay, Expert
opinion. Witness, Expert. Practice, Criminal, Capital
case, Motion to suppress, Admissions and confessions,
Voluntariness of statement, Mistrial, Argument by
prosecutor, Plea.
Indictments found and returned in the Superior Court
Department on December 12, 2008.
A pretrial motion to suppress evidence, filed on June 8,
2009, and amended October 3, 2011, was heard by Kimberly S.
Budd, J.; a second pretrial motion to suppress evidence, filed
on April 12, 2012, was heard by Howard J. Whitehead, J.; a third
pretrial motion to suppress evidence, filed on June 4, 2013, was
heard by Richard E. Welch, III, J.; and the cases were tried
before David A. Lowy, J.
Elizabeth Caddick for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
2
HINES, J. In January, 2014, a Superior Court jury
convicted the defendant, Cesar Santana, of murder in the first
degree of Rafael Castro, on the theories of extreme atrocity or
cruelty, and felony-murder with home invasion and armed
burglary, assault on occupant as the predicate felonies. On
appeal, the defendant asserts error in (1) the denial of his
motion to suppress statements; (2) the admission of hearsay
testimony from various witnesses; (3) the denial of a requested
DiGiambattista jury instruction; (4) the denial of the motion
for a mistrial following the jury's exposure to inadmissible
evidence; and (5) certain improper statements made in the
prosecutor's closing argument. The defendant also requests that
we exercise our authority pursuant to G. L. c. 278, § 33E, to
reduce the murder conviction or to order a new trial. We affirm
the defendant's convictions and decline to grant relief under
G. L. c. 278, § 33E.
Background. 1. The murder. We summarize the facts the
jury could have found, reserving certain details for our
discussion of the alleged errors. On the night of August 25,
2004, Norma Cedeno and her stepfather, Rafael Castro, were
3
attacked by a group of men as the two entered Castro's Lawrence
apartment.1
Cedeno, who entered the apartment first and did not turn on
any lights, walked to the bathroom, where she was grabbed by a
man. Although she could not see the man's face, she felt
something "like a gun" on her back. Hearing Cedeno scream,
Castro ran into the apartment, and two men came out of the
kitchen. As the men struggled, Cedeno, who had been pushed down
to the floor and told to keep her head down, heard a gunshot,
saw Castro on the floor, and heard men arguing in Spanish, some
of whom asked, "Why did you shoot him?" Based on the voices she
heard and the feet she could see walking around the apartment,
Cedeno deduced that four men were involved in the incident.
Thereafter, Cedeno was taken into a bedroom and made to lie
on the floor. A pillowcase was put over her head. Although the
men were initially going to duct tape her hands and feet
together, they complied with her plea not to tie her up.
Instead, one man remained in the bedroom with her. Cedeno could
hear Castro's voice, which although clear at first, became
fainter as time passed. During the time the men were in the
apartment, Cedeno heard them "screaming," hitting and
threatening Castro, and demanding that he make a telephone call.
1
Norma Cedeno testified to the details of the attack at
trial under a grant of immunity concerning her involvement in
drug dealing with her mother and stepfather.
4
At one point, the men brought Cedeno into the bedroom with
Castro, removed her shirt, and threatened to burn her with an
iron unless Castro agreed to make the call.
Eventually, one man said to Cedeno, "Three of us are
leaving and I'm staying here . . . and after I leave[,] if you
call the police or someone for help we're just going to come
back for you." Although Cedeno did not know the men, they
seemed to be familiar with Castro. After all of the men left
the apartment, Cedeno went to the other bedroom and found
Castro, taped up, bleeding from the gunshot wound on his head,
and unable to talk. Cedeno cut the duct tape binding Castro
and, eventually, telephoned 911.
Paramedics who arrived in response to the 911 call
determined that Castro had "no obvious signs of life." Castro's
cause of death was the gunshot wound to his head.
2. The investigation. The police recovered evidence from
the apartment including two rolls of duct tape, one of which had
blood on it, several pieces of duct tape, one piece of which was
found in the bathroom trash barrel, and samples of bloodstains
and pools in various areas of the apartment.
A latent fingerprint from a roll of duct tape recovered
from the scene was determined to be consistent with the known
fingerprint of Joonel Garcia. Also, a deoxyribonucleic acid
(DNA) swab was taken from a "small indentation" near the torn
5
end of the piece of duct tape found in the bathroom trash
barrel. It contained a mixture of the DNA of at least two
individuals, including the defendant, whose DNA "matched" the
major profile of the mixture.
The police interviewed Jessica Encarnacion, who was the
girl friend of Garcia and lived with him in an apartment in
Lawrence. At trial, Encarnacion testified that four men --
Garcia, the defendant, and two others -- arrived at around
midnight at Garcia's apartment. Garcia was covered in blood.
Ignoring Encarnacion's questions about what was going on, Garcia
told her to pack because they had to leave the country.
Thereafter, she and the four men drove to New York, stopping
only to dispose of the gun. Once in New York, Garcia and
Encarnacion purchased one-way tickets to the Dominican Republic
and left the United States.
In August, 2004, the defendant initiated a conversation
with his probation officer,2 during which he stated that he would
be willing to provide information about a shooting in Lawrence
in exchange for financial compensation. The defendant told this
officer that a man named "Joonie" shot someone in the head, and
that the defendant knew the location of the firearm used in the
shooting. The probation officer passed the information on to
2
At the time, the defendant was on probation for an
unrelated matter.
6
the Boston police department.3 In March, 2005, the defendant
initiated a second conversation with his probation officer about
the shooting in Lawrence. This time he told the officer that he
had significant legal concerns and added that the shooting in
Lawrence was actually a drug-related "homicide."
On March 4, 2005, the police interviewed the defendant. At
that time, the defendant was being held in a house of correction
on unrelated charges. Present were Trooper Robert LaBarge of
the State police and Detective Carlos Cueva of the Lawrence
police department. Although the defendant indicated that he
spoke and understood English, LaBarge asked Cueva to serve as a
Spanish translator because Spanish was the defendant's primary
language.4 Initially, the defendant agreed to allow the police
to audio record the interview. His demeanor was "cautious," but
he did not exhibit signs of emotional distress. The tone of the
interview was conversational. During the recorded portion of
the interview, the defendant was provided Miranda warnings in
Spanish and the defendant read the warnings out loud in Spanish.
After the defendant acknowledged that he understood and signed
3
The trial record lacks evidence of the Boston police
department's response to the probation officer's first report.
4
Detective Carlos Cueva spoke both English and Spanish, and
considered Spanish to be his native language. Although Cueva
grew up speaking Spanish in his family home and studied Spanish
in high school, he had no formal training in Spanish
translation.
7
the written warnings, LaBarge began questioning the defendant
about the murder of Castro.
During the interview, in response to the suggestion that he
was inside the apartment at the time of Castro's murder, the
defendant stated that he was actually outside the apartment,
arriving only after the incident occurred. The defendant told
the police that after he received a call from Garcia requesting
a ride, he drove to an apartment building, picked up Garcia and
two other men, and dropped them off at Garcia's Lawrence
apartment. During the drive to the Lawrence apartment, the men
discussed the fact that Garcia had shot Castro. After remaining
in Garcia's apartment for a period of time, the defendant drove
Garcia and Encarnacion to Boston. The firearm used in the
murder was buried before Garcia and Encarnacion left for the
Dominican Republic. The day before the murder, the defendant
had transported a bag of firearms to Garcia's Lawrence
apartment. In exchange, the defendant received money and drugs.
At the conclusion of the interview, LaBarge asked the defendant
to sign the contemporaneous handwritten notes transcribing the
conversation, but the defendant refused.
Discussion. 1. Motion to suppress. The defendant filed
three motions to suppress statements he made during the March 4,
2005, interview with the police. Insofar as relevant here, in
2013, the defendant filed a third motion to suppress,
8
reasserting the voluntariness issue that had not been reached in
any previous ruling. A judge (motion judge) denied this motion,
ruling that "[a]ny understanding that [the] statements would be
confidential and not used in court, was completely dissipated"
after the defendant was given the Miranda warnings and
voluntarily waived those rights. The defendant challenges only
the motion judge's ruling denying the motion to suppress on the
ground that his statement was voluntary.
We recite the facts as found by the motion judge who "fully
[i]ndorsed and incorporate[d]" the facts found by a different
judge who had denied one of the defendant's earlier motions to
suppress. We supplement the facts "with evidence in the record
that is uncontroverted and that was implicitly credited by the
motion judge." Commonwealth v. Melo, 472 Mass. 278, 286 (2015).
The defendant met with the police at the jail where he was
being held on unrelated charges. The officers were in
plainclothes and did not have their credentials or firearms with
them during the interview. The tone of the interview was
conversational. Because the defendant did not always understand
English, Cueva translated. However, the translation of
LaBarge's statements was neither word for word nor always
accurate. Cueva also communicated information in Spanish to the
defendant without translating it into English for LaBarge. When
LaBarge asked the defendant if he would consent to having the
9
interview recorded, Cueva did not translate the defendant's
response: "Okay, no problem . . . okay . . . as long as it is
not used in court . . . better if not used in court . . .
whatever I say to you be confidential." Instead, Cueva replied
to the defendant, "No, do not worry," in Spanish.
After this colloquy between the defendant and Cueva and
prior to asking any questions about the murder, LaBarge inquired
whether the defendant could read and write Spanish. When the
defendant replied, "Yeah, perfect," LaBarge provided him with
Miranda warnings written in Spanish. LaBarge asked the
defendant to read aloud each warning and say whether he
understood it. The defendant did so and indicated that he
understood the warnings.
Following the Miranda warnings, LaBarge stated to the
defendant, "We are going to use the information . . . I have to
be honest, my goal is not to, to save you and to help you out.
My goal is to find the truth." Cueva translated this statement
as follows: "Any information that you give us now, [LaBarge
would] go to the court and they'd talk with the judge and the
lawyer and to say that 'look, Cesar came, talked to me, gave me
that and, we're going to try to help you, but he wouldn't give
you er . . . er, you know." Near the end of the recorded
portion of the interrogation, the defendant said in Spanish,
10
"Tell him that it was me who had him come over, it wasn't him
who looked for me -- it was me who asked for him to come over."
Relying on the transcript of the recorded portion of the
interview, the motion judge also found that the tone of the
interview was "conversational," the defendant was "relaxed
throughout," and "appeared to be chuckling or laughing" on
occasion. Regarding the defendant's language skills, the judge
found that the defendant "plainly can speak and understand a
fair amount of English," although Spanish is "obviously" his
"primary language." The judge further found that "the defendant
plainly understood each [Miranda] right," provided to him in
Spanish, and "at times [he] corrected LaBarge as to the
numbering of these rights." Last, the judge determined that
although "Cueva's translation, obviously, could have been much
better," the defendant nevertheless "fully understood what was
going on."
a. Standard of review. In this case where the motion
judge's findings were based in part on his review of the
transcript of the defendant's interview with the police and in
part on a different judge's findings after an evidentiary
hearing, we apply the appropriate standard of review to each in
our review of the denial of the defendant's motion to suppress.
To the extent that the motion judge's findings are based on the
documentary evidence available to this court in the appellate
11
record, our review is de novo. We give no deference to those
findings as "this court stands in the same position as . . . the
[motion] judge, and reaches its own conclusion unaffected by the
findings made by the [motion] judge." Commonwealth v. Novo, 442
Mass. 262, 266 (2004), quoting Berry v. Kyes, 304 Mass. 56, 57
(1939). Insofar as the motion judge's findings incorporate the
other judge's findings, "we accept [those] findings of fact and
will not disturb them absent clear error. " Commonwealth v.
Tremblay, 460 Mass. 199, 205 (2011). However, "[w]e make an
independent determination as to the correctness of the judge's
application of constitutional principles to the facts as found."
Id.
b. Analysis. In deciding the issue of voluntariness, the
motion judge acknowledged that the defendant's initial statement
that he would speak to the officers "as long as it was not used
in court" was "concerning," and Cueva's response, "No, don't
worry," was "even more concerning." Nonetheless, the motion
judge concluded that, "[a]ny understanding that his statements
would be confidential and not used in court, was completely
dissipated after Trooper LaBarge requested that the defendant
read his Miranda rights and when the defendant voluntarily
waived those rights." Additionally, the motion judge concluded
that LaBarge further dispelled the notion that the defendant's
statements would not be used against him when he "went out of
12
his way to explain to the defendant, who obviously understood
some English, that he was not making any promises to the
defendant," and that he would report the defendant's statements
to the prosecutor and or the court. On this basis, the motion
judge concluded that the defendant's statement was voluntary and
a product of the defendant's "free will." There was no error.
"It is well established that a confession or an admission
is admissible in evidence only if it is made voluntarily."
Tremblay, 460 Mass. at 206. A statement is voluntary when it is
"the product of a 'rational intellect' and a 'free will,' and
not induced by psychological coercion." Commonwealth v. Monroe,
472 Mass. 461, 468 (2015), quoting Tremblay, supra at 207. The
burden is on the Commonwealth to "prove beyond a reasonable
doubt that 'in light of the totality of the circumstances
surrounding the making of the statement, the will of the
defendant was [not] overborne,' but rather that the statement
was 'the result of a free and voluntary act.'" Commonwealth v.
Baye, 462 Mass. 246, 256 (2012), quoting Commonwealth v. Durand,
457 Mass. 574, 595-596 (2010), S.C., 475 Mass. 657 (2016).
Because "the issue of voluntariness turns on 'all the
surrounding circumstances,'" Baye, 462 Mass. at 256, quoting
Dickerson v. United States, 530 U.S. 428, 434 (2000), we have
declined to adopt a "'bright-line rule[]' that the use of
improper interrogation techniques [such as promises of
13
confidentiality] will always result in suppression of a
defendant's incriminating statements as involuntary." Baye,
supra, quoting Tremblay, 460 Mass. at 210-211. However, we have
warned, "assurances that a suspect's statements will not be used
to prosecute him will often be sufficiently coercive to render
the suspect's subsequent admissions involuntary even when the
suspect shows no outward signs of fear, distress[,] or mental
incapacity" (quotations omitted). Baye, supra at 262. We
conclude, as did the motion judge, that the assurance of
confidentiality in the particular circumstances of this case was
dissipated by the timing of the Miranda warnings and other
factors tending to show that the defendant did not rely on that
assurance in making his statement to the police.
Here, the Miranda warnings were given orally and in writing
after Cueva's response, "No, don't worry," to the defendant's
expressed concern that his statement not be used against him in
court. The motion judge found that the defendant understood the
warnings because they were written in Spanish, the defendant's
native language. To ensure that the defendant understood the
warnings, LaBarge required him to read each warning out loud,
and verbally indicate whether he understood after each. The
defendant did so as to each, and signed the Miranda waiver form.
Further, the defendant's familiarity with the warnings and his
correction of the officer's recitation of the warning supports
14
this finding.5 There is no suggestion in this record that the
defendant did not understand the warnings, which plainly
informed the defendant that his statements could not be held
confidential. LaBarge's caution that the defendant's statement
would be conveyed to the prosecutor and the court sufficiently
dispelled any assurance that the defendant's statements would
not be used against him. Thus, the plain language of the
Miranda warnings, which the defendant understood, communicated
that the statements could not be held confidential.
We recognize, however, that the recitation of Miranda
warnings is not dispositive. See Commonwealth v. Libby, 472
Mass. 37, 41 (2015) ("Whether made in a custodial or
noncustodial setting, and even where there has been a valid
waiver of Miranda rights, we must consider the voluntariness of
a defendant's statement"). Rather, it is only one of several
factors we consider when reviewing the voluntariness of a
statement. See Monroe, 472 Mass. at 468. Apart from the
language of the Miranda warnings disavowing any promise of
confidentiality, we are persuaded by the judge's findings that
the defendant could not have believed that his statement would
5
The third warning (translated into English) read,
"Anything that you say can be employed against you." After
reading the warning out loud in Spanish, Trooper Robert LaBarge
asked him if he understood "number two," to which defendant
responded "Yes," clarified, "That's number three," and indicated
he also understood number two.
15
be confidential and that the defendant did not rely on that
promise of confidentiality in making his statement.
After Cueva's, "No, do not worry," statement to the
defendant and after the Miranda warnings, the police
communicated in unambiguous terms that the statement would not
be confidential and the precise manner in which the statement
would be used. Although Cueva's translation of LaBarge's
statements was far from perfect, he nevertheless communicated to
the defendant that the police were making no promise to keep the
defendant's statement confidential. In fact, Cueva told the
defendant that they would report the information to "the
[prosecuting] attorney that is going to be against [him] when
[he] goes to court."6 Cueva also explained to the defendant that
LaBarge was not there to promise that if he made a statement,
the police would let him go or that his case would "come out
well without problems."
Further, Cueva's statement to the defendant that the
officers would speak of his cooperation with the court and try
to help him does not undermine our conclusion. We have
6
Although we conclude that the defendant's statement was
voluntary, we stress that Cueva's inaccurate translation,
particularly his failure to translate for LaBarge the
defendant's request for confidentiality and Cueva's response to
the request, brought this case close to the line that otherwise
would require suppression. This case makes plain the need for
law enforcement to use capable, trained translators who will
report verbatim the question asked and the response given.
16
recognized that an officer is not prohibited from "suggest[ing]
broadly that it would be 'better' for a suspect to tell the
truth, [and] may indicate that the person's cooperation would be
brought to the attention of public officials or others involved,
or may state in general terms that cooperation has been
considered favorably by the courts in the past." Tremblay, 460
Mass. at 209, quoting Commonwealth v. Meehan, 377 Mass. 552, 564
(1979), cert. dismissed, 445 U.S. 39 (1980). See Commonwealth
v. Tolan, 453 Mass. 634, 643 (2009) (officer's statement
indicating police would help defendant and that defendant could
help herself by telling truth did not constitute assurance
forbidden by Meehan, supra); Commonwealth v. Mandile, 397 Mass.
410, 414 (1986) (statement not involuntary where defendant
initiated discussion of leniency and affirmatively sought deal,
and where officer indicated only that prosecutor would "discuss
leniency").
Moreover, as the Commonwealth points out, the defendant's
request to cease audio recording shortly after being provided
his Miranda rights and his refusal to sign Trooper LaBarge's
contemporaneous transcription at the conclusion of the interview
because he "didn't know where he stood in the case," suggest
that the defendant understood the statement could be used
against him. Thus, this case is distinguishable from Baye, 462
Mass. at 257, where the officers "employed multiple problematic
17
tactics" throughout the ten-hour interrogation, including
exaggerating the strength of the evidence and dissuading the
defendant from speaking with an attorney by "clearly implying"
that his statements would not be used against him.
Last, the defendant was motivated by self-interest and the
fear of repercussions from Garcia when he approached his
probation officer offering to provide information about the
murder. As the judge found, the defendant was not concerned
about providing information to the police, he was particularly
concerned with retaliation from "that young [nineteen year old]
guy, that little guy has about [four] deaths under his belt."
The defendant added, "that young guy has me, he has me, you
know, he has me under a lot of pressure and terrified."
Accordingly, in light of the totality of the circumstances,
we conclude that the Commonwealth met its burden of proving
beyond a reasonable doubt that the defendant's statement was
made voluntarily. Therefore, any initial promise of
confidentiality that Cueva conveyed to the defendant did not
render his statement involuntary.
2. Evidentiary rulings. a. Bite mark testimony. The
defendant argues LaBarge's testimony that the duct tape found in
the bathroom trash barrel of Castro's apartment "had . . . what
was believed to be a bite mark or dental impression, where it
looked like -- I was told maybe somebody had bit it, when they
18
were ripping it" constituted inadmissible hearsay and violated
his right to confrontation under the Sixth Amendment to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights. The testimony was admitted in the direct
examination of LaBarge regarding forensic evidence that the
police processed during the investigation in an effort to
identify possible suspects. LaBarge's response constituted
impermissible hearsay and should not have been admitted.
Because there was no objection at trial, our inquiry is
"'whether the impropriety created a substantial likelihood of a
miscarriage of justice.'"7 Commonwealth v. Fritz, 472 Mass. 341,
351 (2015), quoting Commonwealth v. Gentile, 437 Mass. 569, 579-
580 (2002). We conclude that it did not. The defendant's
7
Prior to trial, the defendant filed a motion in limine
that sought to exclude evidence of the "tooth mark." This
motion, however, does not properly preserve the defendant's
claim of error with respect to LaBarge's inadmissible hearsay
testimony. In Commonwealth v. Grady, 474 Mass. 715, 719 (2016),
we concluded that we would no longer require an objection to the
admission of evidence at trial where the defendant sought to
preclude the admission of the evidence through a motion in
limine. However, we cautioned that our ruling "is not as broad
as it may seem." Id. Specifically, "[a]n objection at the
motion in limine stage will preserve a defendant's appellate
rights only if what is objectionable at trial was specifically
the subject of the motion in limine." Id. In his motion in
limine, the defendant objected to the admission of the "tooth
mark" evidence because "the Commonwealth does not intend to call
any expert with sufficient education, training, or familiarity
with the subject matter of the anticipated testimony." Because
LaBarge's hearsay testimony was not the subject of the motion in
limine and the defendant failed to object at trial, the error
was not properly preserved.
19
defense was that he was not in the apartment at the time of
Castro's murder, and that his DNA was possibly inadvertently
left on an indentation near the ripped edge of an approximately
twelve-inch piece of duct tape when he brought the bag of guns
to Garcia's Lawrence apartment. This explanation strains
credulity, as it required the jury to believe one of two
scenarios: (1) that a piece of duct tape with the defendant's
DNA near the ripped edge was transported in a bag along with the
guns to Garcia's apartment and then placed in the bathroom trash
barrel of Castro's apartment; or (2) that the defendant's DNA
was inadvertently transferred to the roll of duct tape and
remained on the tape after it was handled, ripped, and placed in
the bathroom trash barrel by someone else. Accordingly, we
conclude that no substantial likelihood of a miscarriage of
justice resulted from the impermissible hearsay testimony.
b. Testimony regarding the defendant's presence at the
scene. The defendant argues that the trial judge erred when he
permitted LaBarge to testify that he told the defendant that he
had information that the defendant was in the apartment at the
time of the crime because it constituted inadmissible hearsay
and violated his confrontation rights.8 The defendant's argument
is unavailing.
8
Specifically, the following colloquy between the
prosecutor and Trooper LaBarge was admitted at trial:
20
It is well established that "if a defendant is charged with
a crime and unequivocally denies it, that denial is not
admissible in evidence." Commonwealth v. Bonnett, 472 Mass.
827, 838 (2015), quoting Commonwealth v. Morse, 468 Mass. 360,
375 n.20 (2014). But, we have also recognized that "accusatory
statements shed their hearsay character when they are offered
not for the truth of the matter asserted, but to provide context
for admissible statements of the defendant." Bonnett, supra at
838 n.13. Such was the case here.
As the trial judge pointed out, the accusation was not
offered for its truth, but rather to contextualize the
defendant's statement that is "arguably exculpatory." Absent
the prefatory statement to contextualize the defendant's
response (that he was outside the apartment that night), it
improperly suggests that the defendant, without any prompting,
generously put himself at the scene of the murder. Because the
statements were not introduced for the truth of the matter
asserted, their admission did not violate the defendant's right
The prosecutor: "Trooper, did you . . . tell Mr. Santana
that you believe that he was inside the apartment that night,
and that you had information that he was there that night?"
The witness: "Yes."
The prosecutor: "What was his response to that?"
The witness: "He denied being in the apartment."
21
to confrontation under the Sixth Amendment. See Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004) ("The [Confrontation]
Clause . . . does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter
asserted").
To ensure that the jury did not use the statements for an
improper purpose, the judge instructed the jury that LaBarge's
statement was not admissible for its truth, or for any
information that the trooper did or did not have. See Bonnett,
472 Mass. at 838 n.13 (it may be appropriate for defendant to
request instruction "limiting the jury's consideration of the .
. . [accusatory] statements to its nonhearsay purpose").
Additionally, the judge emphasized that the jury were to use the
statement only for the purpose of understanding, weighing, and
considering the answer that the defendant gave in response to
the trooper's question. Accordingly we conclude that the judge
committed no error in admitting LaBarge's statement.
c. Substitute medical examiner testimony. The defendant
maintains that the judge erred in allowing the admission of the
testimony of a substitute medical examiner, who did not conduct
the autopsy of Castro and who based her testimony, in part, on
22
the drawings of the nontestifying medical examiner.9 The
defendant filed a motion in limine seeking exclusion of the
testimony, and also objected at trial. The defendant argues
that the admission of the testimony violated his confrontation
rights under the Sixth Amendment and under art. 12. We
disagree.
In Commonwealth v. Reavis, 465 Mass. 875 (2013), we
outlined the parameters of the opinion testimony that a
substitute medical examiner may offer at trial. Specifically,
we instructed that "[a] substitute medical examiner who did not
perform the autopsy may offer an opinion on the cause of death,
based on his review of an autopsy report by the medical examiner
who performed the autopsy and his review of the autopsy
photographs." Id. at 883. We allow the substitute medical
examiner to opine on this issue because autopsy reports by other
medical examiners and autopsy photographs "are documents upon
which experts are accustomed to rely, and which are potentially
independently admissible through appropriate witnesses." Id.
Here, the substitute medical examiner's testimony remained
largely within the parameters we set forth in Reavis. The
medical examiner opined on Castro's cause of death (gunshot
wound), how the gunshot likely led to his death, and the amount
9
The medical examiner who conducted the autopsy of Castro
in August, 2004, was no longer employed by the office of the
chief medical examiner at the time of trial.
23
of time that could have elapsed between the gunshot wound and
his death, all of which were permissible areas of inquiry under
Reavis. See Reavis, 465 Mass. at 883. To the extent that the
substitute medical examiner's opinion ventured into inadmissible
territory -- specifically, the location of the gunshot wound --
it was limited when the judge sua sponte paused the direct
examination of the witness, held a colloquy between the parties
at sidebar, and struck the improper testimony from the record.
Nevertheless, the defendant contends that he could not
meaningfully cross-examine the substitute medical examiner about
the reliability of the drawings produced by the medical examiner
responsible for performing Castro's autopsy; thus, the admission
of the testimony was inconsistent with Commonwealth v.
Greineder, 464 Mass. 580, 595, cert. denied, 134 S. Ct. 166
(2013). We are not persuaded. In Greineder, we reiterated that
where the pathologist responsible for performing the autopsy was
unavailable to testify at trial, the substitute expert witness
was prohibited from testifying to the pathologist's autopsy
findings. Id. at 585. However, consistent with previous cases,
we reaffirmed that independent expert opinion testimony, even
where based on facts and data originating from a nontestifying
examiner's report, does not infringe on a defendant's right of
confrontation because the defendant has the opportunity to
cross-examine the witness on "the foundation of [her] opinion."
24
Id. at 584-589. Here, the substitute medical examiner testified
to her independent opinion and was available for cross-
examination on the foundation of that opinion. Thus, the
testimony was consistent with this court's mandates in Reavis
and Greineder, and its admission was not error.
3. DiGiambattista instruction. At trial, the defendant
asked the judge to instruct the jury pursuant to Commonwealth v.
DiGiambattista, 442 Mass. 423 (2004). The judge denied the
request, reasoning that because defendant requested the audio
recording device to be turned off, he was not entitled to the
instruction. The defendant argues that the trial judge erred in
declining to give a DiGiambattista instruction where a portion
of the defendant's interview with the police was not audio
recorded. We agree.
In DiGiambattista, 442 Mass. at 447, we held, "when the
prosecution introduces evidence of a defendant's confession or
statement that is the product of a custodial interrogation or an
interrogation conducted at a place of detention . . . , and
there is not at least an audiotape recording of the complete
interrogation, the defendant is entitled (on request) to a jury
instruction." We further determined that "the instruction is
appropriate for any custodial interrogation, or interrogation
conducted in a place of detention, without regard to the alleged
reasons for not recording that interrogation." Id. at 448.
25
Although it would have been permissible for the prosecution to
raise as a justification for the incomplete recording the
defendant's affirmative request to cease recording, it "[did]
not obviate the need for a cautionary instruction." Id. at 449.
See Commonwealth v. Woods, 466 Mass. 707, 721 n.15, cert.
denied, 134 S. Ct. 2655 (2014) (defendant entitled to
DiGiambattista instruction "even where . . . the defendant
affirmatively requests that that the interview not be
recorded"). Thus, it was error for the judge to deny the
defendant's request for a DiGiambattista instruction.
Because the error was preserved, we must determine "whether
'the error did not influence the jury, or had but very slight
effect,'" and thus was nonprejudicial. Commonwealth v.
Christian, 430 Mass. 552, 563 (2000), quoting Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). Applying this standard, we
conclude that the error was nonprejudicial. We have noted that
"the value of [a DiGiambattista] instruction is lessened where
. . . the defendant's statements, dubious as they may be, were
largely exculpatory." Woods, 466 Mass. at 721. Here, the
defendant's statement was at least partially exculpatory, as the
defendant claimed that he was not at the apartment at the time
of the murder, and only went to the apartment because Garcia
called him for a ride. In fact, the defendant's defense
strategy was, at least in part, dependent on the jury believing
26
his statement.10 Therefore, we conclude that the denial of the
DiGiambattista instruction constituted nonprejudicial error, and
thus does not warrant reversal.
4. Motions for a mistrial. The defendant contends that
the denial of his motions for a mistrial constituted error where
the jury were repeatedly exposed to inadmissible evidence.
Prior to trial, the defendant filed a motion in limine seeking
to prevent reference to his prosecution in a later Superior
Court case in Suffolk County involving some of the same
individuals involved in Castro's killing. The trial judge did
not explicitly rule on the motion after the prosecutor indicated
that she was not seeking to introduce the evidence. At trial,
when asked about another trooper's role in the investigation of
Castro's murder, Trooper LaBarge explained that he asked the
other trooper to compare the latent print found from the roll of
duct tape in Castro's apartment against "four individuals that
were arrested in the city of Boston." Defense counsel
immediately objected, requested to go to sidebar, and moved for
a mistrial, arguing that the testimony, at least by inference,
implicated the defendant. After a colloquy outside the presence
of the jury, the judge denied the motion, but indicated he would
10
A major theme of defense counsel's closing was the fact
that the defendant, unlike the other people involved, cooperated
with the police and gave a statement because the defendant did
not commit the crime, and had no idea that the guns he
previously delivered to Garcia would be used in the robbery.
27
strike the testimony from the record and give a curative
instruction.
Following the sidebar, the judge instructed the jury that
the trooper's testimony regarding four individuals being
arrested in the city of Boston was not evidence in the case as
it was struck from the record, and not for the jury to consider
"in any regard to this case." The judge further instructed:
"When an answer is stricken from the record, it doesn't
exist. When you determine what the facts are from the
case, you are sworn to determine those facts solely and
exclusively from the evidence presented in the case, and
you may never consider evidence anything that's been
stricken from the record."
Despite the judge's instruction, on the resumption of LaBarge's
direct testimony, in response to the prosecutor's question
regarding the fingerprints he asked the other trooper to
compare, LaBarge responded, "The four individuals I previously
spoke of." Again, defense requested a sidebar, and renewed his
motion for a mistrial. The judge again denied the motion,
struck the testimony, and gave a curative instruction. In his
instruction, the judge not only reminded the jury of his
previous instruction, he also reiterated that when an answer has
been struck, "it doesn't exist in the evidence, and you may not
consider it in anyway."
The defendant argues that LaBarge's testimony constituted
"prejudicial subsequent bad acts evidence" that carried the risk
28
of "distracting the jury from the main issue." The denial of a
motion for mistrial is reviewed for abuse of discretion.
Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). Given the
trial judge's "broad discretion in deciding whether to declare a
mistrial," we have instructed that "'this court should defer to
that judge's determination of whether [there was] prejudicial
error, how much any such error infected the trial, and whether
it was possible to correct that error through instruction to the
jury.'" Commonwealth v. Amran, 471 Mass. 354, 359 (2015),
quoting Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). This
is because "[a] trial judge is in the best position to determine
whether a mistrial, an extreme measure available to a trial
judge to address error, is necessary, or whether a less dramatic
measure, such as a curative instruction, is adequate." Amran,
supra at 360.
Here, Trooper LaBarge's two references to "four individuals
that were arrested in the city of Boston" were improper.
Although the trial judge noted during the colloquy outside the
presence of the jury that the trooper's comment was "entirely
inappropriate," he also pointed out that the jury did not
actually learn that the defendant was arrested for home invasion
in Suffolk County. Nor were the jury ever made aware that the
defendant was prosecuted and served time in prison for the home
invasion. Thus, the judge ultimately determined that the error
29
could be cured by striking both responses and giving a "strong
cautionary instruction." See id. ("Where the judge promptly
struck the improper testimony and gave a highly specific
curative instruction, the judge acted appropriately and within
her discretion"). The curative instruction made clear that the
trooper's response was not evidence, and thus not to be
considered. Moreover, as the Commonwealth points out, the trial
judge previously had instructed the jury that the defendant "is
on trial for the indictments before the court, and those
indictments only." It is well settled that "[t]he jury are
presumed to follow the judge's instruction" to disregard the
evidence, id., and the record in this case does not suggest
otherwise. Accordingly, we conclude that the judge did not
abuse his discretion in denying the motions for mistrial.
5. The prosecutor's closing argument. The defendant
argues that certain remarks by the prosecutor during her closing
argument were prejudicial. "Remarks made during closing
arguments are considered in the context of the whole argument,
the evidence admitted at trial, and the judge's instructions to
the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
a. Witness's "enhanced" hearing. The defendant first
contends that it was error for the prosecutor to argue that
Cedeno's hearing was enhanced because she was blindfolded.
According to the defendant, there were neither facts in evidence
30
nor expert testimony to support such a claim. Because the
defendant did not object to this statement at trial, we must
determine whether the statement was improper, and "if so whether
[it] created a substantial likelihood of a miscarriage of
justice." Commonwealth v. Fritz, 472 Mass. at 351, quoting
Commonwealth v. Gentile, 437 Mass. at 579-580.
"A prosecutor must limit comment in [the] closing statement
to the evidence and fair inferences that can be drawn from the
evidence" (citation omitted). Commonwealth v. Carriere, 470
Mass. 1, 22 (2014). Although "a prosecutor may argue zealously
in support of inferences favorable to the Commonwealth's case,"
the requirement that the inferences "reasonably may be drawn
from the evidence" remains. Id. Such was not the case here.
The record is devoid of evidence, much less expert evidence,
suggesting that Cedeno had enhanced hearing due to her temporary
blindfolding.
Although impermissible, we conclude that no substantial
likelihood of a miscarriage of justice arose from the
prosecutor's statement. We have observed, "[i]n [certain]
circumstances, [an] isolated remark does not warrant a new
trial. 'Excusable hyperbole is not a ground for reversal, and
the jury are presumed to have a certain measure of
sophistication in sorting out excessive claims on both sides.'"
Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010), quoting
31
Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). Moreover, as
the Commonwealth points out, the prosecutor's enhanced hearing
statement was cumulative of other evidence suggesting that there
were four assailants present in the apartment with Cedeno and
Castro, including Cedeno's testimony that she knew four people
were present because she saw "feet walking around the
apartment." Last, when raising his objections to the
prosecutor's closing argument, defense counsel neither objected
nor requested a curative instruction on this ground. See
Commonwealth v. Ahart, 464 Mass. 437, 442 (2013) ("the absence
of any objection or request for a curative instruction by
experienced defense counsel is some indication that the comment
by the prosecutor could not have created a substantial
likelihood of miscarriage of justice").
b. Bite mark on the duct tape. The defendant next
contends that the prosecutor improperly argued that the
indentation in the duct tape found in the bathroom trash bin was
a bite mark. The Commonwealth argues that, based on the
evidence presented at trial, the jury reasonably could have
inferred that the indentation on the duct tape found in Castro's
bathroom was a tooth mark produced by someone who tore the tape.
We agree. Three pieces of evidence presented at trial support
our conclusion: (1) the end of the duct tape was torn, (2) the
presence of DNA was detected on the duct tape, and (3) saliva is
32
among the human biological fluids that provides a source of DNA.
Therefore, we conclude that no prejudicial error arose from the
prosecutor's statement.
c. Characterization of DNA testimony. The defendant last
argues that the prosecutor improperly equated the DNA statistics
of a 99.999 per cent match with the proof beyond a reasonable
doubt standard. We disagree. As pointed out by the trial
judge, a close reading of the record reveals that the
Commonwealth's remarks regarding the DNA statistics did not
equate reasonable doubt to a percentage. Rather, the
prosecutor's remarks focused on the certainty, described in
terms of percentages, of the defendant's DNA matching the major
profile in the DNA mixture on the piece of duct tape found in
the bathroom trash bin. Accordingly, the prosecutor's remarks
did not constitute error.
Even if the remarks were error, they did not create a
substantial likelihood of a miscarriage of justice. Here again,
that fact that defense counsel neither objected nor sought a
curative instruction provides some indication that the remarks
did not create a substantial risk of a miscarriage of justice.
See Ahart, 464 Mass. at 442. Indeed, in raising his objections
to the prosecutor's closing argument, defense counsel stated
that because of the way the prosecutor characterized the DNA
statistics, he did not believe it mischaracterized the
33
reasonable doubt standard, and thus did not object.
Additionally, the trial judge twice instructed the jury --
before and after closing arguments -- on the purpose of closing
arguments, noting they are an opportunity for the attorneys to
be zealous advocates for their respective clients, and
cautioning that the judge, not the attorneys, instruct on the
law that applies to the case. As we have observed, in cases
where "close questions arise whether the prosecutor has gone
over the line between fair and improper argument," we recognize
that "closing argument is identified as argument, the jury
understands that, instructions from the judge inform the jury
that closing argument is not evidence, and instructions may
mitigate any prejudice in the final argument." Commonwealth v.
Kozec, 399 Mass. 514, 517 (1987).
6. Relief pursuant to G. L. c. 278, § 33E. We have
conducted a complete review of the record pursuant to G. L.
c. 278, § 33E, and we discern no basis to grant relief. The
defendant argues that we should exercise our powers under § 33E
to reduce his murder in the first degree conviction to a
conviction of manslaughter or murder in the second degree. In
support of this request, the defendant points out that during
trial, the Commonwealth, for the second time, offered him a plea
to the lesser included offenses of manslaughter with a term of
imprisonment of from fifteen years to fifteen years and one day,
34
which the defendant declined. That the Commonwealth offered the
defendant a plea arrangement does not provide grounds on which
to grant relief pursuant to § 33E and "is irrelevant to our
inquiry." Commonwealth v. Cintron, 435 Mass. 509, 525 (2001),
overruled on another ground by Commonwealth v. Hart, 455 Mass.
230, 242 (2009). Thus, the defendant's argument is unavailing,
and we decline to exercise our power pursuant to § 33E on this
ground.
Judgments affirmed.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FoR THE DISTRICT oF CoLUMBIA F I L E D
NoRTH AMERICAN BUTTERFLY FEB 1 4 2019
ASSOCIATICN’ Clerk, u.s. District and
Bankruptcy Courts
Plaintiff,
v. Civil Case No. 17-2651 (RJL)
)
)
)
)
)
)
)
KIRSTJEN M. NIELSEN, er al. )
)
)
Defendants.
1b
MEMORANDU`M OPINION
(February l#, 2019) [Dkt. ## 25, 34]
The North American Butterfly Association (“NABA” or “plaintiff”), a non-profit
organization devoted to butterflies and butterfly habitat conservation, brought this action
against Department of Homeland Security (“DHS”) Secretary Kirstjen Nielsen, United
States Customs and Border Protection (“CBP”) Acting Commissioner Kevin McAleenan,
United States Border Patrol (“USBP”) Acting Chief Carla Provost, and CBP Rio Grande
Valley Sector Chief Patrol Agent Manuel Padilla, Jr., each in their official capacities
(collectively, “defendants”). NABA seeks declaratory and injunctive relief based on
alleged constitutional and statutory violations arising from defendants’ border Wall
preparation and law enforcement activities at NABA’s National Butterfly Center
(“Butterfly Center”), Which is located near the United States-Mexico border in South
Texas. Pending before me are defendants’ motions to dismiss under Federal Rules of Civil
Procedure l2(b)(l) and lZ(b)(6).
Upon consideration of the pleadings and the relevant law, and for the reasons stated
below, defendants’ motions to dismiss are GRANTED, and this case is DISMISSED.
BACKGROUND
On January 25, 2017, President Donald Trump issued Executive Order No. 13767,
directing the DHS Secretary to “take all appropriate steps to immediately plan, design, and
construct a physical wall along the southern border” with Mexico. 82 Fed. Reg. 8793,
8794. On February 20, 2017, former DHS Secretary John Kelly issued a memorandum
implementing the Executive Order. See Mem. Re: Implementing the President’s Border
Security and Immigration Enforcement Improvements Policies (February 20, 2017) [Dkt.
# 25-2, Att. E]. Secretary Kelly’s memorandum directed CBP to “immediately begin
planning, design, construction, and maintenance of a wall, including the attendant lighting,
technology (including sensors), as well as patrol and access roads, along the land border
with Mexico in accordance with existing law.” Id. at 5. Neither the Executive Order, nor
the implementing memorandum, identifies any particular location or specific infrastructure
projects for the planning or construction of the physical barrier wall.
NABA is a non-profit organization dedicated to conserving butterflies and butterfly
habitats. Am. Compl. 11 15. NABA owns and operates the Butterfly Center, a 100-acre
wildlife center and botanical garden located in South Texas abutting the Rio Grande river.
Id. at 1111 46-47. The Butterfly Center is home to a number of wildlife species listed as
threatened or endangered under federal law. Id. at 1 49. The Butterfiy Center is also
situated in the Rio Grande Valley Border Patrol Sector (“RGV Sector”), a USBP
designation for the 17,000 square-mile geographical patrol area encompassing the Center.
2
Id. at 11 l9. Although not expressly alleged, plaintiff does not appear to dispute that the
Butterfly Center is located within twenty-five miles of the southern border with Mexico.
See id. atjl 15; Pl.’s Opp’n at 2, 22 [Dkt. # 30].
NABA alleges that on July 20, 2017, the Butterfly Center’s executive director
identified a work crew on Center property using heavy equipment to “cut down trees, mow
brush, and widen a private road that runs” through the Center. Am. Compl. jj 53. The
executive director also noticed “surveyor flags” elsewhere on the property. Ia’. at 11 54. The
executive director contacted CBP, which confirmed that the agency was responsible for the
work crew, had authority for the activity, and would provide further clarity about the work.
Id. at jj 55. On August l, 2017, the Chief Patrol Agent for the RGV Sector and two CBP
agents visited the Butterfly Center and showed the executive director “a draft proposal for
the border wall, including a segment through the Butterfly Center.” Ia’. at jj 56. The Chief
Patrol Agent also referred to “sensors” that had been placed in undisclosed locations on
Center property. Ia’. at jj 59. Plaintiff alleges that since the August l, 2017 meeting, CBP
officials have, on one occasion, “followed and temporarily detained” the executive director
and a reporter and have “regularly station[ed]” themselves on Center property rather than
patrolling. Ia’. at 1111 61-62.
Plaintiff filed a complaint for declaratory and injunctive relief on December ll,
2017, see Compl. [Dkt. # l], which it amended on March 28, 2018, see Am. Compl. [Dkt.
# 19]. Based on the foregoing factual allegations, NABA claims that defendants have
failed to comply with their statutory obligations under the National Environmental Policy
Act (“NEPA”) and the Endangered Species Act (“ESA”) and have violated NABA’s
3
Fourth and Fifth Amendment rights. Ia’. at 1111 63-89. Defendants moved to dismiss the
Amended Complaint on May 25, 2018, arguing that NABA’s statutory and constitutional
claims are unripe and/or otherwise defective. See [Dkt. # 25].
On October 12, 2018, defendants filed a notice informing the Court of a
determination by DHS Secretary Nielsen pursuant to § 102 of the lllegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), 8 U.S.C. § 1103 note, which
authorizes the Secretary to “waive all legal requirements”_including the ESA and
NEPA_that the Secretary “determines necessary to ensure expeditious construction of”
1 Section 102 also
physical barriers and roads along the United States-Mexico border.
deprives federal courts of jurisdiction to review any non-constitutional “causes or claims”
that “aris[e] from any action undertaken, or any decision made, by the Secretary of
Homeland Security pursuant to” the Secretary’s waiver authority. HRIRA § 102(c)(2)(A).
The Secretary invoked her waiver authority on October 4, 2018, applying it to
certain areas within the RGV Sector that include NABA’s Butterfly Center property. See
Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, as Amended, 83 Fed. Reg. 51472, 51473 (Oct. ll, 2018)
(“Waiver Determination”). The Secretary “waive[d] in their entirety,” inter alz'a, NEPA,
the ESA, and the Administrative Procedure Act (“APA”) “with respect to the construction
of roads and physical barriers (including, but not limited to, accessing the project area,
creating and using staging areas, the conduct of earthwork, excavation, fill, and site
l References to § 102 as currently constituted are cited herein as “HRIRA § 102.”
4
preparation, and installation and upkeep of physical barriers, roads, supporting elements,
drainage, erosion controls, safety features, lighting, cameras, and sensors) in the project
area.” Ia’. at 51473~74. Accordingly, defendants filed a supplemental motion to dismiss
contending that the Waiver Determination extinguishes plaintiff’s NEPA and ESA claims
by depriving this Court of subject matter jurisdiction over them. See [Dkt. # 34].
LEGAL STANDARD
On a Rule l2(b)(1) motion to dismiss for lack of subject matter jurisdiction, the
plaintiff bears the burden of establishing jurisdiction by a preponderance of` the evidence.
See Lujcm v. Defenders Of Wl`ldll`fe, 504 U.S. 555, 561 (1992); see also Bank ofAmerz`ca,
N.A. v. FDIC, 908 F.Supp.2d 60, 76 (D.D.C. 2012). Because “subject-matterjurisdiction
is an ‘Art[icle] III as well as a statutory requirement[,] no action of the parties can confer
subject-matter jurisdiction upon a federal court.”’ Akl`nseye v. Dz`strz`ct of Columbia, 339
F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. oflr., Lta’. v. Compagnie des Bauxl`tes
de Guinee, 456 U.S. 694, 702 (1982)). In considering a 12(b)(1) motion to dismiss, a court
need not limit itself to the complaint, but rather “may consider such materials outside the
pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the
case.” chk ofAmerz`ca, N.A. v. FDIC, 908 F.Supp.2d 60, 76 (D.D.C. 2012) (quotation
marks omitted).
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of` a complaint
Browm`ng v. Cll'nton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive a l2(b)(6) motion, a
complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
5
marks omitted). A claim is facially plausible when the complaint allegations allow the
Court to “draw the reasonable inference that the defendant is liable for the misconduct
alleged.?’ Ia’. In resolving a Rule 12(b)(6) motion, “[t]he [C]ourt assumes the truth of all
well-pleaded factual allegations in the complaint and construes reasonable inferences from
those allegations in the plaintiff" s favor[.]” Sissel v. U.S. Dep zt of Health & Human Servs.,
760 F.3d l, 4 (D.C. Cir. 2014).
ANALYSIS
I. Constitutional Claims
ln its Amended Complaint, NABA asserts claims under the Fourth and Fifth
Amendments. I will address these in turn.2
a. Fourth Amendment
NABA contends that defendants have violated and will continue to violate the
Fourth Amendment by entering Butterfly Center property without consent or warrant. Am.
2 The jurisdictional impact of the Secretary’s October 2018 Waiver Deterinination
is discussed in detail infra. Nevertheless, it bears mentioning at this point that NABA’s
constitutional claims do not appear to “aris[e] from” the Secretary’s waiver authority such
that § 102(c)(2)(A)’s jurisdictional carve-out would apply. However, defendants do not
argue_and the Waiver Determination does not indicate_that the Secretary’s waiver of
“all legal requirements” relating to barrier and road construction extends beyond the
enumerated statutory requirements to extinguish constitutional claims arising from those
activities. I will assume that the courthouse doors remain open to such claims to avoid the
“serious constitutional question that would arise if a federal statute were construed to deny
any judicial forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. 592,
603 (1988) (internal quotation marks omitted);' see also American Coalitz`on for
Competitive Tma’e v. Clinton, 128 F.3d 761, 765 (1997) (“To be sure, a statute that totally
precluded judicial review for constitutional claims would clearly raise serious due process
concerns.”).
Compl. 1111 85_89. Unfortunately for plaintiff, the Fourth Amendment offers little refuge
for unenclosed land near one of the country’s external borders. The Amended Complaint
is clear that the Butterfly Center consists of 100 acres of open land accessible to the visiting
public, id. at 1111 46, and no factual allegations suggest that defendants entered or searched
without consent any physical structures on the Center’s property. Thus, while plaintiff
perhaps could seek damages under a trespass theory,3 for constitutional purposes the
property at issue amounts to an “open field,” which is “unprotected by the Fourth
Amendment, even when privately owned.” United States v. Johiason, 561 F.2d 832, 858
n.13 (D.C. Cir. 1977) (Bazelon, C.J., dissenting); see also United States v. Alexana’er, 888
F.3d 628, 631 (2d Cir. 2018) (“that portion of private property that extends outside a
home’s curtilage_what the caselaw terms an ‘open field’_is beyond the purview of the
Fourth Amendment, and can be warrantlessly and suspicionlessly searched without
constitutional impediment”). Moreover, the Butterfly Center’s proximity to the United
States’ border with Mexico confirms that NABA has-not stated a Fourth Amendment claim.
lt is well established that “searches made at the border, pursuant to the long-standing right
of the sovereign to protect itself by stopping and examining persons and property crossing
into this country, are reasonable simply by virtue of the fact that they occur at the border.”
3 Such a trespass claim would have to be brought pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2679(b)(1), before it could be brought in this
Court. See 28 U.S.C. §§ 2401(b), 2675; McNez‘l v. UnitedStates, 508 U.S. 106, 112 (1993);
Moher v. Um`z‘ea’ States, 875 F.Supp.2d 739, 751 (W.D. Mich. 2012) (considering tort
claims based on warrantless entry of border patrol agents on private timber land after
plaintiff had exhausted FTCA administrative remedy).
United States v. Gurr, 471 F.3d 144, 148 (D.C. Cir. 2006) (quoting United States v.
Ramsey, 431 U.S. 606, 616 (1977)); see 8 U.S.C. § 1357(a) (immigration officers “shall
have the power without warrant . . . within a distance of twenty-five miles from any such
external boundary to have access to private lands, but not dwellings, for the purpose of
patrolling the border to prevent the illegal entry of aliens into the United States”).
As such, the confluence of the Butterfly Center’s open field status and defendants’
constitutional and statutory authority at the border compels dismissal of NABA’s Fourth
Amendment claim under Rule 12(b)(6). See Molzer v. United States, 875 F.Supp.2d 739,
773-89 (W.D. Mich. 2012) (dismissing Fourth Amendment claim based on border patrol
officers’ warrantless entry on private timber land because land was “open field” under
Fourth Amendment and, in passing 8 U.S.C. § 1357.(a), Congress “reasonably determined
that warrantless searches in open fields on private land located within 25 miles of the
external borders of the United States are necessary to effectively carry out and enforce the
federal regulatory scheme” governing alien immigration); Boargeol`s v. Peters, 387 F.3d
1303, 1314-15 (11th Cir. 2004) (“[s]ituations in which such expectations [of privacy] are
reduced include . . .-border searches, and searches of open fields” (footnotes omitted)).
b. Fifth Amendment
The Amended Complaint asserts that defendants have deprived NABA of its
property in violation of the Fifth Amendment’s Due Process Clause. See Am. Compl.
1111 34~39, 80_83. This claim also fails.
Insofar as NABA’s claim is predicated on an alleged failure to comply with
IIRIRA’s property condemnation provisions, that preemptive challenge is not ripe. See
8
Am. Compl. 11 83 (“Defendants have not sought to acquire an interest in NABA property
or followed any of the steps for doing so”); Texas Border Coal. v. Napolz`z‘ano, 614
F.Supp.2d 54, 59-63 (D.D.C. 2009) (“It would . . . thwart congressional will, to allow the
plaintiff`s members to preemptiver challenge an anticipated condemnation when the
Department’s decision to pursue this course has not yet been rendered.”). Similarly unripe
is plaintiff’ s claim that “[p]roposed border wall construction” amounts to a constitutional
deprivation. Am. Compl. 1182;see, e.g., Texas v. United States, 523 U.S. 296, 300 (1998)
(“[A] claim is not ripe for adjudication if it rests upon contingent future events that may
not occur as anticipated, or indeed may not occur at all.” (internal quotation marks
omitted)). And finally, to the extent that NABA’s.allegations can be read to support an
authorized-but-uncompensated taking claim, that claim too is premature. “[A] takings
lawsuit is premature if it is brought before plaintiffs have sought compensation in the form
of damages.” Firearms Import/Export Rouna'table Traa’e Grp. v. Jones, 854 F.Supp.2d 1,
20-21 (D.D.C. 2012) (dismissing takings claim for injunctive relief where plaintiffs failed
to first seek damages under the Tucker Act); see also Wz`llz'amson Counzy Regz`onal
Plannz'ng Comm’n v. Hamilton Bank of Johnson Cily, 473 U.S. 172, 194-95 (1985);
StuclentLoan Mktg. Ass'n v. Rz'ley, 104 F.3d 397, 401 (D.C. Cir. 1997).
Accordingly, plaintiff` s Fifth Amendment claim, as alleged in the Amended
Complaint, also must be dismissed See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 853
(D.C. Cir. 2011) (certainjusticiability questions should be addressed under Rule 12(b)(6));
Matthew A. Golalstel`n, PLLC v. U.S. Dep’t ofState, 153 F.Supp.3d 319, 331 n.9 (D.D.C.
2016) (matters of prudential ripeness may be properly resolved under Rule l2(b)(6), rather
than Rule 12(b)(1)), ajj”’a’, 851 F.3d 1 (D.C. Cir. 2017).
II. Statutory Claims
lt is undisputed that the DHS Secretary’s October 2018 Waiver Determination, if
validly exercised, deprives the Court of jurisdiction to hear plaintiff` s NEPA and ESA
claims. “Only Congress may determine a lower federal court’s subject-matter
jurisdiction.” Kontrz'ck v. Ryan, 540 U.S. 443, 452 (2004) (citing U.S. Const. art. III, § 1).
And “when it comes to jurisdiction, the Congress giveth and the Congress taketh away.”
ln re al-Nashiri, 791 F.3d 71, 76 (D.C. Cir. 2015); see 5 U.S.C. § 701(a)(1) (APA does not
apply where “statute[] preclude[s] judicial review”); Robbins v. Reagan, 780 F.2d 37, 42
(D.C. Cir. 1985) (APA and federal questionjurisdiction are “subject . . . to preclusion-of-
review statutes created or retained by Congress”). In the case of IIRIRA, Congress
expressly granted to the Secretary the authority to “waive all legal requirements” that, in
the “Secretary’s sole discretion, [are] necessary to ensure expeditious construction of the
barriers and roads” described in the statute. IIRIRA § 102(c)(1). As such, “a valid waiver
of the relevant environmental laws under section 102(c) is an affirmative defense to all [of
plaintist] environmental claims.” In re Border Infrastructure Environmental Liz‘z`g., --
F.3d --, 2019 WL 509813, at *5 (9th Cir. Feb. 11, 2019).
NABA does not argue that the geographic scope of the Secretary’s Waiver
Determination fails to encompass the Butterfly Center. See Waiver Determination, 83 Fed.
Reg. at 51473 (defining covered area). Thus, the waiver extinguishes plaintiff`s NEPA
and ESA claims, as those statutes (and the APA) create “legal requirements” that no longer
10
apply to actions related to “the construction of roads and physical barriers”_e.g.,
excavation, site preparation, installation and upkeep of barriers, roads, and sensors_in the
covered area. Ia’. at 51473-74; see In re Border Infrastructure Envz`ronmental Ll`tz`g., --
F.3d --, 2019 WL 509813, at *9 (“The Secretary has waived the legal requirements that
[plaintiffs] allege DHS violated.”). It is of no moment that the waiver was issued after the
commencement of this action. See In re Border Infrastructure Environmental Litig., 2019
WL 509813, at *5 n.8 (rejecting argument that previously effective statutory requirements
survive waiver because “the waiver provision says nothing about when the agency must
invoke its authority,” and thus no “relief could be granted once DHS issued the waivers”).
IIRIRA also expressly precludes federal court jurisdiction to review any
non-constitutional “causes or claims” that “aris[e] from any action undertaken, or any
decision made, by the Secretary of Homeland Security pursuant to” the Secretary’s waiver
authority. IIRIRA § 102(c)(2)(A); Save Oar Herl'tage Org. v. Gonzales, 533 F. Supp. 2d
58, 60 (D.D.C. 2008) (“The only claims permitted under the [IIRIRA] waiver provision
are those ‘alleging a violation of the Constitution.”’ (quoting IIRIRA § 102(c)(2)(A)). In
other words, IIRIRA not only permits the Secretary to waive NEPA and the ESA, but it
also precludes any non-constitutional challenge to the waiver itself.
However, IIRIRA’s preclusion-of-review provision does not end the matter. NABA
contends that l may review whether the Secretary’s waiver was ultra vires for failure to
consult with other stakeholders, as required under IIRIRA § 102(b)(1)(C). While
defendants respond that such non-statutory review is also foreclosed, it is well established
in our Circuit that “even where a statute precludes judicial review, ‘judicial review is
11
available when an agency acts ultra vires.”’ Sky Televisiorz, LLC v. F. C.C., 589 Fed.Appx.
541, 543 (D.C. Cir. 2014) (quoting Al`clAss’rzfor Lutherans v. U.S. Postal Serv., 321 F.3d
1166, 1173 (D.C. Cir. 2003)). Not surprisingly, however, non-statutory review of agency
action is “of extremely limited scope.” Griyj‘z`th v. Fea’. Labor Relatz`orzs Auz‘h., 842 F.2d
487, 493 (D.C. Cir. 1988); see also Trua’eau v. Fea’eral Traa’e Comm 'n, 456 F.3d 178, 190
(D.C. Cir. 2006). “lf a no-review provision shields particular types of administrative
action, a court may not inquire whether a challenged agency decision is arbitrary,
capricious, or procedurally defective.” Amgerz, Irzc. v. sz`th, 357 F.3d 103, 113 (D.C. Cir.
2004). The Court must only “determine whether the challenged agency action is of the sort
shielded from review.” Ia’.
Here, the Secretary’s waiver “is of the sort shielded from review” under IIRIRA,
and plaintiff’ s ultra vires argument is predicated on an alleged procedural defect. See ia’.
The consultation provision on which NABA relies provides that “[i]n carrying out this
section, the Secretary of Homeland Security shall consult with the Secretary of the Interior,
the Secretary of Agriculture, States, local governments, lndian tribes, and property owners
in the United States to minimize the impact on the environment, culture, commerce, and
quality of life for the communities and residents located near the sites at which such fencing
is to be constructed.” IIRIRA § 102(b)(1)(C). Although the statutory language is phrased
in mandatory terms, the provision “does not provide any specific limitation or guidance
concerning when or how consultation is to occur except expressly stating who shall be
consulted.” 1a re Border Infrastructure Envz'ronmental Ll`tig., 284 F.Supp.3d 1092, 1126
(S.D. Cal. 2018), a/j”a’, 2019 WL 509813 (9th Cir. Feb. 11, 2019). ln other words, IRIRA
12
is silent as to whether the consultation required must occur prior to a waiver determination.
l\/loreover, the decision whether to exercise the waiver authority is in the Secretary’s “sole
discretion.” HRIRA § 102(c)(1). The statute neither requires the Secretary to consult with
the stakeholders identified in § 102(b)(1)(C) before exercising her waiver authority, nor
indicates that the Secretary’s waiver power in any way depends on the views of those third
parties.
Pre-waiver consultation may be wise policy, but it not a statutory requirement As
such, even assuming the complete absence of consultation here, l cannot conclude that the
Secretary’s Waiver Determination was plainly in excess of her delegated statutory powers
or contradicted a clear statutory mandate. See In re Border Infrastructure Environmental
Litigation, 284 F.Supp.3d at 1126 (rejecting ultra vires argument that Secretary exceeded
“delegated powers by approving the waivers or executing construction contracts prior to
completing the consultation process” because HRIRA lacks “a ‘clear and mandatory’
mandate regarding the timing of consultation”); Grijj”zth, 842 F.2d at 493. My jurisdiction
therefore does not extend beyond NABA’s constitutional claims, and its statutory claims
must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction.
13
CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss are hereby GRANTED,
plaintiff’s constitutional claims are DISMISSED without prejudice, and plaintiff’ s
statutory claims are DISMISSED with prejudice. A separate order consistent with this
decision accompanies this Memorandum Opinion.
RIciT/-`\RDJ.
United States
14
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A a v St. Barnabas Hosp. (2019 NY Slip Op 07695)
A a v St. Barnabas Hosp.
2019 NY Slip Op 07695
Decided on October 24, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on October 24, 2019
Friedman, J.P., Kapnick, Oing, Singh, JJ.
10187 350314/09
[*1] A—A&mdash, an Infant by His Mother and Natural Guardian, et al., Plaintiffs-Respondents,
vSt. Barnabas Hospital, Defendant-Appellant, Network OB/GYN, P.C., et al., Defendants.
Gabarini & Scher, P.C., New York (Thomas M. Cooper of counsel), for appellant.
Meagher & Meagher, P.C., White Plains (Merryl F. Weiner of counsel), for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about October 16, 2018, which, insofar as appealed from as limited by the briefs, denied defendant St. Barnabas Hospital's motion for summary judgment dismissing all claims against it except those premised upon vicarious liability pursuant to Mduba v Benedictine Hosp. (52 AD2d 450 [3d Dept 1976]), unanimously modified, on the law, to grant the motion as to the lack of informed consent claim and as to any claims based on vicarious liability for the conduct of defendants David Green, M.D. or Mumtaz M. Master, M.D., and otherwise affirmed, without costs.
Plaintiffs assert claims for medical malpractice, loss of services, and lack of informed consent in connection with the premature birth of the infant plaintiff at defendant St. Barnabas Hospital. Plaintiffs allege that St. Barnabas departed from the standard of care by negligently performing a transvaginal ultrasound (TVU) on October 22, 2007, notwithstanding the prior diagnosis of placenta previa, and by failing to obtain informed consent to this procedure. Plaintiffs further allege that, as a result of these departures, plaintiff mother suffered a placental hemorrhage, which in turn caused the infant to suffer brain damage and developmental delays.
On appeal, St. Barnabas does not dispute that it may be subject to liability for negligent acts by employees of defendant Network OB/GYN, P.C. (Network) - the entity that ran the obstetrical and gynecological practice at the hospital pursuant to a contract with St. Barnabas - pursuant to Mduba v Benedictine Hosp. (52 AD2d 450, 452-454 [3d Dept 1976]).
St. Barnabas established prima facie that there was no departure from good and accepted medical practice by submitting its expert opinion that the vaginal probe could not have caused plaintiff mother to hemorrhage because the TVU films demonstrated that the probe did not disturb the cervix. In opposition, plaintiffs raised an issue of fact by submitting their expert opinion that there was a "very real likelihood that the placenta [could] be disrupted by putting the vaginal probe inside the vagina" and that that was in fact what happened here. This opinion was sufficient to preclude summary judgment. Contrary to St. Barnabas's contention, the TVU films do not constitute dispositive proof. The films consist of still photos taken at discrete points in time during the procedure, and the possibility cannot be ruled out that the probe was inserted into the cervix at a time not pictured or that the injury was created by the probe after the last photo was taken. For this reason, DiGeronimo v Fuchs (101 AD3d 933, 936 [2d Dept 2012]), on which St. Barnabas relies, is distinguishable.
Plaintiffs' lack of informed consent claim must be dismissed, because it was not St. Barnabas's responsibility to obtain the consent. Contrary to St. Barnabas's contention, the record does not conclusively demonstrate that defendant Ndubueze Okereke, M.D. ordered the TVU. Dr. Okereke denied doing so, and none of the other deposed witnesses knew with certainty who [*2]had ordered it. Although the requisition form indicates that Dr. Okereke made the order, this document is not properly considered, because it was not discovered and submitted until reply (see Small v City of New York, 160 AD3d 471, 473 [1st Dept 2018]). In any event, the record demonstrates that the TVU was ordered by a Network employee, even if an employee of St. Barnabas performed the procedure. St. Barnabas's expert opined that the responsibility for obtaining consent "rests entirely with the attending physician who ordered [the test], not with the technician who carries out the . . . order," and this opinion is unrebutted (see also Salandy v Bryk, 55 AD3d 147, 152 [2d Dept 2008] ["where a private physician attends his or her patient at the facilities of a hospital, it is the duty of the physician, not the hospital, to obtain the patient's informed consent"]).
St. Barnabas is entitled to the dismissal of the claims based on vicarious liability for alleged negligence by doctors against whom this action has already been dismissed - i.e., David Green, M.D. and Mumtaz M. Master, M.D. (see Kukic v Grand, 84 AD3d 609, 610 [1st Dept 2011]).
St. Barnabas is not entitled to summary judgment dismissing claims based on vicarious liability for the conduct of its employees, because plaintiffs raised an issue of fact whether any St. Barnabas employees committed independent acts of negligence (see Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d 487, 488 [1st Dept 2011], appeal withdrawn 17 NY3d 804 [2011]). Although its employees were not responsible for the determination to order a
TVU, St. Barnabas may be liable if its employee performed the TVU negligently or it failed to properly supervise the procedure.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 24, 2019
CLERK
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540 U.S. 997
GREENWOOD, AKA GRIMESv.UNITED STATES.
No. 03-6603.
Supreme Court of United States.
November 3, 2003.
1
Appeal from the C. A. 11th Cir.
2
Certiorari denied. Reported below: 62 Fed. Appx. 921.
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415 U.S. 800 (1974)
UNITED STATES
v.
EDWARDS ET AL.
No. 73-88.
Supreme Court of United States.
Argued January 15, 1974.
Decided March 26, 1974.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
*801 Edward R. Korman argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Jerome M. Feit.
Thomas R. Smith, by appointment of the Court, 414 U. S. 1125, argued the cause and filed a brief for respondents.[*]
MR. JUSTICE WHITE delivered the opinion of the Court.
The question here is whether the Fourth Amendment should be extended to exclude from evidence certain clothing taken from respondent Edwards while he was in custody at the city jail approximately 10 hours after his arrest.
Shortly after 11 p. m. on May 31, 1970, respondent Edwards was lawfully arrested on the streets of Lebanon, Ohio, and charged with attempting to break into that city's Post Office.[1] He was taken to the local jail and placed in a cell. Contemporaneously or shortly thereafter, investigation at the scene revealed that the attempted entry had been made through a wooden window which apparently had been pried up with a pry bar, leaving paint chips on the window sill and wire mesh *802 screen. The next morning, trousers and a T-shirt were purchased for Edwards to substitute for the clothing which he had been wearing at the time of and since his arrest. His clothing was then taken from him and held as evidence. Examination of the clothing revealed paint chips matching the samples that had been taken from the window. This evidence and his clothing were received at trial over Edwards' objection that neither the clothing nor the results of its examination were admissible because the warrantless seizure of his clothing was invalid under the Fourth Amendment.
The Court of Appeals reversed. Expressly disagreeing with two other Courts of Appeals,[2] it held that although the arrest was lawful and probable cause existed to believe that paint chips would be discovered on respondent's clothing, the warrantless seizure of the clothing carried out "after the administrative process and the mechanics of the arrest have come to a halt" was nevertheless unconstitutional under the Fourth Amendment. 474 F. 2d 1206, 1211 (CA6 1973). We granted certiorari, 414 U. S. 818, and now conclude that the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case.
The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrests, United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 755 (1969); Weeks v. United States, 232 U. S. 383, 392 (1914), and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime *803 when a person is taken into official custody and lawfully detained. United States v. Robinson, supra.[3]
It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. If need be, Abel v. United States, 362 U. S. 217 (1960), settled this question. There the defendant was arrested at his hotel, but the belongings taken with him to the place of detention were searched there. In sustaining the search, the Court noted that a valid search of the property could have been made at the place of arrest and perceived little difference
"when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested." Id., at 239.
The courts of appeals have followed this same rule, holding that both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence.[4] Nor is there any doubt *804 that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.[5]
Conceding all this, the Court of Appeals in this case nevertheless held that a warrant is required where the search occurs after the administrative mechanics of arrest have been completed and the prisoner is incarcerated. But even on these terms, it seems to us that the normal processes incident to arrest and custody had not been completed when Edwards was placed in his cell on the night of May 31. With or without probable cause, the authorities were entitled at that point not only to search Edwards' clothing but also to take it from him and keep it in official custody. There was testimony that this was the standard practice in this city.[6] The police *805 were also entitled to take from Edwards any evidence of the crime in his immediate possession, including his clothing. And the Court of Appeals acknowledged that contemporaneously with or shortly after the time Edwards went to his cell, the police had probable cause to believe that the articles of clothing he wore were themselves material evidence of the crime for which he had been arrested. 474 F. 2d, at 1210. But it was late at night; no substitute clothing was then available for Edwards to wear, and it would certainly have been unreasonable for the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night. Cf. United States v. Caruso, 358 F. 2d 184, 185-186 (CA2), cert. denied, 385 U. S. 862 (1966). When the substitutes were purchased the next morning, the clothing he had been wearing at the time of arrest was taken from him and subjected to laboratory analysis. This was no more than taking from respondent the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration.
*806 Other closely related considerations sustain the examination of the clothing in this case. It must be remembered that on both May 31 and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. Chimel v. California, 395 U. S. 752 (1969); Frazier v. Cupp, 394 U. S. 731 (1969); Warden v. Hayden, 387 U. S. 294 (1967); Ker v. California, 374 U. S. 23 (1963) (plurality opinion); Zap v. United States, 328 U. S. 624 (1946), vacated on other grounds, 330 U. S. 800 (1947). Surely, the clothes could have been brushed down and vacuumed while Edwards had them on in the cell, and it was similarly reasonable to take and examine them as the police did, particularly in view of the existence of probable cause linking the clothes to the crime. Indeed, it is difficult to perceive what is unreasonable about the police's examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.
In Cooper v. California, 386 U. S. 58 (1967), an accused had been arrested for a narcotics offense and his automobile impounded preparatory to institution of forfeiture proceedings. The car was searched a week later without a warrant and evidence seized that was later introduced at the defendant's criminal trial. The warrantless search and seizure were sustained because they were "closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. . . . It would be unreasonable to hold that the police, having to retain the car in their *807 custody for such a length of time, had no right, even for their own protection, to search it." Id., at 61-62. It was no answer to say that the police could have obtained a search warrant, for the Court held the test to be, not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable, which it was. Id., at 62. United States v. Caruso, supra, expresses similar views. There, defendant's clothes were not taken until six hours after his arrival at a place of detention. The Court of Appeals properly held that no warrant was required:
"He and his clothes were constantly in custody from the moment of his arrest, and the inspection of his clothes and the holding of them for use in evidence were, under the circumstances, reasonable and proper." 358 F. 2d, at 185 (citations omitted).
Caruso is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the "property room" of the jail, and at a later time searched and taken for use at the subsequent criminal trial.[7] The result is the *808 same where the property is not physically taken from the defendant until sometime after his incarceration.[8]
In upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee.[9] But we do think that the Court of Appeals for the First Circuit captured the essence of situations like this when it said in United States v. DeLeo, 422 F. 2d 487, 493 (1970) (footnote omitted):
"While the legal arrest of a person should not destroy the privacy of his premises, it doesfor at *809 least a reasonable time and to a reasonable extent take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence."
The judgment of the Court of Appeals is reversed.
So ordered.
MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
The Court says that the question before us "is whether the Fourth Amendment should be extended" to prohibit the warrantless seizure of Edwards' clothing. I think, on the contrary, that the real question in this case is whether the Fourth Amendment is to be ignored. For in my view the judgment of the Court of Appeals can be reversed only by disregarding established Fourth Amendment principles firmly embodied in many previous decisions of this Court.
As the Court has repeatedly emphasized in the past, "the most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions.' " Coolidge v. New Hampshire, 403 U. S. 443, 454-455; Katz v. United States, 389 U. S. 347, 357. Since it is conceded here that the seizure of Edwards' clothing was not made pursuant to a warrant, the question becomes whether the Government has met its burden of showing that the circumstances of this seizure brought it within one of the "jealously and carefully drawn"[1] exceptions to the warrant requirement.
*810 The Court finds a warrant unnecessary in this case because of the custodial arrest of the respondent. It is, of course, well settled that the Fourth Amendment permits a warrantless search or seizure incident to a constitutionally valid custodial arrest. United States v. Robinson, 414 U. S. 218; Chimel v. California, 395 U. S. 752. But the mere fact of an arrest does not allow the police to engage in warrantless searches of unlimited geographic or temporal scope. Rather, the search must be spatially limited to the person of the arrestee and the area within his reach, Chimel v. California, supra, and must, as to time, be "substantially contemporaneous with the arrest," Stoner v. California, 376 U. S. 483, 486; Preston v. United States, 376 U. S. 364, 367-368.
Under the facts of this case, I am unable to agree with the Court's holding that the search was "incident" to Edwards' custodial arrest. The search here occurred fully 10 hours after he was arrested, at a time when the administrative processing and mechanics of arrest had long since come to an end. His clothes were not seized as part of an "inventory" of a prisoner's effects, nor were they taken pursuant to a routine exchange of civilian clothes for jail garb.[2] And the considerations that typically justify a warrantless search incident to a lawful arrest were wholly absent here. As Mr. Justice *811 Black stated for a unanimous Court in Preston v. United States, supra, at 367:
"The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crimethings which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest."[3]
Accordingly, I see no justification for dispensing with the warrant requirement here. The police had ample time to seek a warrant, and no exigent circumstances were present to excuse their failure to do so. Unless the exceptions to the warrant requirement are to be "enthroned into the rule," United States v. Rabinowitz, 339 U. S. 56, 80 (Frankfurter, J., dissenting), this is precisely the sort of situation where the Fourth Amendment requires a magistrate's prior approval for a search.
The Court says that the relevant question is "not whether it was reasonable to procure a search warrant, but whether the search itself was reasonable." Ante, at 807. Precisely such a view, however, was explicitly rejected in Chimel v. California, supra, at 764-765, where the Court characterized the argument as "founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests." As *812 they were in Chimel, the words of Mr. Justice Frank-further are again most relevant here:
"To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an `unreasonable search' is forbidden that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response. There must be a warrant to permit search, barring only inherent limitations upon that requirement when there is a good excuse for not getting a search warrant . . . ." United States v. Rabinowitz, supra, at 83 (dissenting opinion).
The intrusion here was hardly a shocking one, and it cannot be said that the police acted in bad faith. The Fourth Amendment, however, was not designed to apply only to situations where the intrusion is massive and the violation of privacy shockingly flagrant. Rather, as the Court's classic admonition in Boyd v. United States, 116 U. S. 616, 635, put the matter:
"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, *813 as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."
Because I believe that the Court today unjustifiably departs from well-settled constitutional principles, I respectfully dissent.
NOTES
[*] Frank G. Carrington, Jr., Wayne W. Schmidt, Fred E. Inbau, Glen Murphy, Paul Keller, and Courtney A. Evans filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.
[1] Edwards (hereafter also referred to as respondent) had an alleged confederate, William T. Livesay, who was corespondent in this case, but died after the petition for certiorari was granted. We therefore vacate the judgment as to him and remand the case to the District Court with directions to dismiss the indictment. Durham v. United States, 401 U. S. 481 (1971).
[2] The Court stated that it could not agree with United States v. Williams, 416 F. 2d 4 (CA5 1969), and United States v. Caruso, 358 F. 2d 184 (CA2), cert. denied, 385 U. S. 862 (1966).
[3] "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." United States v. Robinson, supra, at 235.
[4] United States v. Manar, 454 F. 2d 342 (CA7 1971); United States v. Gonzalez-Perez, 426 F. 2d 1283 (CA5 1970); United States v. DeLeo, 422 F. 2d 487 (CA1 1970); United States v. Williams, supra; United States v. Miles, 413 F. 2d 34 (CA3 1969); Ray v. United States, 412 F. 2d 1052 (CA9 1969); Westover v. United States, 394 F. 2d 164 (CA9 1968); United States v. Frankenberry, 387 F. 2d 337 (CA2 1967); Evalt v. United States, 382 F. 2d 424 (CA9 1967); Malone v. Crouse, 380 F. 2d 741 (CA10 1967); Cotton v. United States, 371 F. 2d 385 (CA9 1967); Miller v. Eklund, 364 F. 2d 976 (CA9 1966); Hancock v. Nelson, 363 F. 2d 249 (CA1 1966); Golliher v. United States, 362 F. 2d 594 (CA8 1966); Rodgers v. United States, 362 F. 2d 358 (CA8), cert. denied, 385 U. S. 993 (1966); United States v. Caruso, supra; Whalem v. United States, 120 U. S. App. D. C. 331, 346 F. 2d 812, cert. denied, 382 U. S. 862 (1965); Grillo v. United States, 336 F. 2d 211 (CA1 1964), cert. denied sub nom. Gorin v. United States, 379 U. S. 971 (1965); Robinson v. United States, 109 U. S. App. D. C. 22, 283 F. 2d 508 (1960); Baskerville v. United States, 227 F. 2d 454 (CA10 1955).
[5] See, e. g., United States v. Caruso, supra; United States v. Williams, supra; Golliher v. United States, supra; Whalem v. United States, supra; Robinson v. United States, supra; Evalt v. United States, supra; Hancock v. Nelson, supra.
[6] App. 6. Historical evidence points to the established and routine custom of permitting a jailer to search the person who is being processed for confinement under his custody and control. See, e. g., T. Gardner & V. Manian, Principles and Cases of the Law of Arrest, Search, and Seizure 200 (1974); E. Fisher, Search and Seizure 71 (1970). While "[a] rule of practice must not be allowed . . . to prevail over a constitutional right," Gouled v. United States, 255 U. S. 298, 313 (1921), little doubt has ever been expressed about the validity or reasonableness of such searches incident to incarceration. T. Taylor, Two Studies in Constitutional Interpretation 50 (1969).
[7] See Evalt v. United States, 382 F. 2d 424 (CA9 1967); Westover v. United States, 394 F. 2d 164 (CA9 1968); Baskerville v. United States, 227 F. 2d 454 (CA10 1955). In Baskerville, the effects were taken for safekeeping on December 23 but re-examined and taken as evidence on January 6. Brett v. United States, 412 F. 2d 401 (CA5 1969), is contra. There the defendant's clothes were taken from him shortly after arrival at the jail, as was the custom, and held in the property room of the jail. Three days later the clothing was searched and incriminating evidence found. A divided panel of the Court of Appeals held the evidence inadmissible for want of a warrant authorizing the search.
[8] Hancock v. Nelson, 363 F. 2d 249 (CA1 1966); Malone v. Crouse, 380 F. 2d 741 (CA10 1967); United States v. Caruso, 358 F. 2d 184 (CA2 1966). In Hancock, the defendant was first taken into custody at 12:51 a. m. His clothes were taken at 2 p. m. on the same day, two hours after probable cause to do so eventuated.
[9] Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of police conduct "must [still] be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Terry v. Ohio, 392 U. S. 1, 20 (1968). But the Court of Appeals here conceded that probable cause existed for the search and seizure of respondent's clothing, and respondent complains only that a warrant should have been secured. We thus have no occasion to express a view concerning those circumstances surrounding custodial searches incident to incarceration which might "violate the dictates of reason either because of their number or their manner of perpetration." Charles v. United States, 278 F. 2d 386, 389 (CA9), cert. denied, 364 U. S. 831 (1960). Cf. Schmerber v. California, 384 U. S. 757 (1966); Rochin v. California, 342 U. S. 165 (1952).
[1] Jones v. United States, 357 U. S. 493, 499.
[2] The Government conceded at oral argument that the seizure of the respondent's clothing was not a matter of routine jail procedure, but was undertaken solely for the purpose of searching for the incriminating paint chips.
No contention is made that the warrantless seizure of the clothes was necessitated by the exigencies of maintaining discipline or security within the jail system. There is thus no occasion to consider the legitimacy of warrantless searches or seizures in a penal institution based upon that quite different rationale.
[3] No claim is made that the police feared that Edwards either possessed a weapon or was planning to destroy the paint chips on his clothing. Indeed, the Government has not even suggested that he was aware of the presence of the paint chips on his clothing.
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IN THE SUPREME COURT OF IOWA
No. 17–1979
Filed February 14, 2020
33 CARPENTERS CONSTRUCTION, INC.,
Appellant,
vs.
THE CINCINNATI INSURANCE COMPANY,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Henry W.
Latham II, Judge.
Residential contractor lacking public adjuster license seeks further
review of court of appeals decision affirming summary judgment that
dismissed its breach of contract claim against homeowners’ insurer.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED.
Kyle J. McGinn and Edward F. Noethe of McGinn, Springer & Noethe
PLC, Council Bluffs, for appellant.
Sean O’Brien and Catherine Lucas (until withdrawal) of Bradshaw,
Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.
2
PER CURIAM.
On March 15, 2016, a hailstorm and windstorm damaged Gregg
Whigham’s residence in Bettendorf. Whigham had a homeowners’
insurance policy with the Cincinnati Insurance Company (Cincinnati).
Whigham and 33 Carpenters Construction, Inc. (33 Carpenters) entered
into an agreement under which 33 Carpenters would repair the storm
damage to Whigham’s home in exchange for Whigham’s insurance
proceeds.
On October 6, a 33 Carpenters representative, Tony McClanahan,
and Whigham called Cincinnati to report the storm damage to the siding
and roof of Whigham’s home. During this call, McClanahan informed
Cincinnati that he was Whigham’s contractor and would attend
Cincinnati’s inspection of Whigham’s home. Four days later, Whigham
and McClanahan signed an “Assignment of Claim and Benefits,” which
stated,
FOR VALUE RECEIVED, Assignor [Gregg Whigham]
hereby sells and transfers to the Assignee [33 Carpenters] and
its successors, assigns and personal representatives, any and
all claims, payment drafts, demands, and cause or causes of
action of any kind whatsoever which the Assignee [33
Carpenters] has or may have against Cincinnati Insurance
(insurance company), arising from the following claim [for
storm damage.]
This document further stated that 33 Carpenters “may in its own name
and for its own benefit prosecute, collect, settle, compromise and grant
releases on said claim as it, in is sole discretion, deems advisable” and
that “all future payments or settlements for the above referenced claim”
should be made directly to 33 Carpenters. The same day, Whigham
submitted an insurance claim for damage to his residence. Cincinnati
investigated the claim, prepared an estimate for the cost of repairing the
damage, and made a payment to Whigham that autumn.
3
In February 2017, 33 Carpenters contacted Cincinnati to dispute
the insurer’s estimate of the repair cost and requested a new estimate that
would include the cost of replacing all of the home’s siding and gutters.
Cincinnati responded that it would address any differences directly with
its insured, Whigham, rather than 33 Carpenters. On March 13,
33 Carpenters filed this civil action against Cincinnati claiming the insurer
breached Whigham’s insurance policy by “failing to pay ‘33 Carpenters’ all
benefits due and owing under the policy” that had been assigned to it.
33 Carpenters elected to bring the suit as an expedited civil action under
Iowa Rule of Civil Procedure 1.281. Whigham was unaware of this lawsuit.
Cincinnati’s answer denied the claims and raised affirmative
defenses. On April 5, Cincinnati filed a counterclaim for declaratory
judgment against 33 Carpenters, arguing the assignment was invalid
because it effectively allowed 33 Carpenters to act as an unlicensed public
adjuster in violation of Iowa Code chapter 522C (2016).
On August 3, Cincinnati filed a motion for summary judgment.
Cincinnati noted that 33 Carpenters’ website outlined its six-step process
that described the work of a public adjuster, that its actions aligned with
that of a public adjuster, and that 33 Carpenters maintained a contractor
license while neither it nor its employees had a public adjuster’s license.
Cincinnati argued summary judgment was appropriate given that the
assignment contract at issue was invalid because 33 Carpenters violated
Iowa Code sections 507A.3, 507A.5, and 522C.4 by acting as an
unlicensed public adjuster. 33 Carpenters countered that only the Iowa
Insurance Commissioner could enforce chapter 522C and that the
assignment contract was a valid postloss assignment.
On October 30, 33 Carpenters filed a motion to compel appraisal.
Cincinnati disputed the need for an appraisal given that the homeowner
4
had accepted its scope of repairs. On November 28, the district court
granted summary judgment, concluding “[t]he purported assignment of
Whigham’s insurance claim to 33 Carpenters must be deemed invalid
because it violates Iowa’s licensure requirement for public adjusters.” In
doing so, the district court found that 33 Carpenters’ website included
advertisements to advocate on an insured’s behalf, 33 Carpenters
attempted to aid Whigham in negotiations with Cincinnati, and
33 Carpenters demanded to be present for Cincinnati’s investigation of
Whigham’s home and conducted its own investigation. The district court
determined the assignment must be invalid because otherwise it effectively
allowed 33 Carpenters to act as a public adjuster without the required
license. Therefore, the court entered summary judgment for Cincinnati.
33 Carpenters appealed, and we transferred the case to the court of
appeals. The court of appeals rejected 33 Carpenters’ argument that the
dispute must be heard by the Iowa Insurance Commissioner and
concluded, “[T]he statutes do not limit our authority to apply the law to
the facts before us in order to resolve the legal dispute presented to us as
a result of the lawsuit filed by 33 Carpenters.” The court of appeals found
that “there is no genuine issue of fact that 33 Carpenters was acting for
and aiding Whigham in negotiating for and attempting to effect a
settlement of Whigham’s first-party insurance claim for loss to his home
insured by Cincinnati.” Therefore, it determined that 33 Carpenters was
operating as an unlicensed public adjuster in violation of Iowa Code
section 522C.4, and the assignment contract was unenforceable. The
court of appeals affirmed the summary judgment in favor of Cincinnati.
We adjudicated the validity of such an assignment in a decision we
also file today, 33 Carpenters Construction, Inc. v. State Farm Life &
Casualty Co., ___ N.W.2d ___, ___ (Iowa 2020). There, we held that an
5
assignment contract entered into by a residential contractor acting as an
unlicensed public adjuster was void under Iowa Code section 103A.71(5).
For the reasons set forth in that opinion, we hold that Whigham’s
assignment to 33 Carpenters is void and unenforceable under section
103A.71(5), and we reject the argument that the Iowa Insurance
Commissioner has sole authority to enforce the licensing requirements for
public adjusters. We affirm the decision of the court of appeals and district
court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except McDonald, J., who takes no part.
This opinion shall be published.
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DISMISSAL FORM FOR CIVIL CASES ON ANT'S MOTION /SETTLEMENT
NO. 12-02-00327-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
TYLER ROSE NURSERY, INC.,§
ORIGINAL PROCEEDING
RELATOR§
______________________________________________________________________________
PER CURIAM
Relator Tyler Rose Nursery, Inc. has filed a motion to withdraw its petition for writ of
mandamus filed on November 12, 2002. All other parties to the proceeding have been given notice
of the filing of this motion. In its motion, Relator represents that the parties to the underlying
proceeding have signed a settlement agreement that disposes of the remaining issue between them
in the trial court. Because Relator has met the requirements for dismissal, the motion is granted, and
the proceeding is dismissed.
Opinion delivered November 26, 2002.
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)
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Order entered November 12, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00608-CR
PHILLIP RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-42390-W
ORDER
The Court REINSTATES the appeal.
On August 13, 2013, we denied appellant’s second motion to extend time to file his brief
and ordered the trial court to make findings. We ADOPT the findings that: (1) appellant desires
to pursue the appeal; (2) appellant is not indigent and is represented by retained counsel William
Bratton; (3) Mr. Bratton’s explanation for the delay in filing appellant’s brief is that appellant
considered retaining different counsel, but ultimately continued with Mr. Bratton; and (4) Mr.
Bratton indicated he required thirty days from the September 13, 2013 hearing to file appellant’s
brief.
We note that nearly sixty days have passed since the September 13, 2013 hearing, and
appellant’s brief has not yet been filed. Accordingly, we ORDER appellant to file his brief by
DECEMBER 12, 2013. No further extensions will be granted. If appellant’s brief is not filed
by the date specified, the Court will, without further notice, submit the appeal without briefs.
See TEX. R. APP. P. 38.8(b)(4).
We DIRECT the Clerk to send copies of this order, by electronic transmission, to the
Honorable Tracy Holmes, Presiding Judge, 363rd Judicial District Court; William Bratton; and
the Dallas County District Attorney’s Office.
/s/ DAVID EVANS
JUSTICE
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F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 15 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CORNEL COOKS,
Plaintiff-Appellant,
v. No. 97-6105
RON WARD, Warden, Oklahoma State
Penitentiary, McAlester, Oklahoma,
Defendant-Appellee.
ORDER ON REHEARING
Before BRORBY, BRISCOE and MURPHY, Circuit Judges.
This matter is before the court on Appellant’s petition for rehearing. The
original panel has voted to deny rehearing. The petition therefore is denied. The
original opinion has been amended, however, to clarify our holding that Mr.
Cooks waived his right to counsel under both the Fifth and Sixth Amendments.
The amended opinion is attached to this order; all revisions are found under the
heading “I. Admissibility of Post-Arrest Statements.” The attached opinion is
substituted for the one previously filed on October 28, 1998. The amended
opinion will reissue this date.
The suggestion for rehearing en banc was transmitted to all the judges of
the court who are in regular active service as required by Fed. R. App. P. 35. As
no member of the panel and no judge in regular active service on the court
requested the court be polled, the suggestion is also denied.
Entered for the Court
WADE BRORBY
United States Circuit Judge
-2-
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 15 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CORNEL COOKS,
Plaintiff-Appellant,
v. No. 97-6105
RON WARD, Warden, Oklahoma State
Penitentiary, McAlester, Oklahoma,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 87-CV-1538)
Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Plaintiff-Appellant.
Sandra D. Howard (W.A. Drew Edmondson, Attorney General, with her on the
brief), Assistant Attorney General, Oklahoma City, Oklahoma, for Defendant-
Appellee.
Before BRORBY, BRISCOE and MURPHY, Circuit Judges.
BRORBY, Circuit Judge.
Petitioner Cornel Cooks appeals the denial of his petition for a writ of
habeas corpus seeking to overturn his capital murder conviction and death
sentence. We affirm both the conviction and sentence.
BACKGROUND
In March 1983, Mr. Cooks and a co-defendant, Rodney Madson Masters,
a/k/a William Wallace Troxell, were tried together in Oklahoma state court on an
information alleging (1) murder with malice aforethought, (2) felony murder
while in the commission of first degree rape, and (3) felony murder while in the
commission of first degree burglary. A jury convicted both men for the murder of
Mr. Cooks’ disabled, eighty-seven-year-old neighbor, Jennie Ridling. Mrs.
Ridling suffocated to death after a piece of gauze-like material had been tightly
wrapped around her head. The evidence indicated Mrs. Ridling was raped, and
her home ransacked and burglarized.
After the sentencing stage of trial, the jury found three aggravating
circumstances as to Mr. Cooks: (1) he previously was convicted of a felony
involving the use or threat of violence; (2) Mrs. Ridling’s murder was especially
heinous, atrocious or cruel; and (3) he represented a continuing threat to society.
Based on these aggravators, the jury sentenced Mr. Cooks to death. Mr. Masters
-2-
was sentenced to life imprisonment.
Mr. Cooks took a direct appeal to the Oklahoma Court of Criminal Appeals,
represented by the same attorney who represented him at trial, Mr. Stephen
Hilliary. That court affirmed his conviction and sentence. Cooks v. State, 699
P.2d 653 (Okla. Crim. App.), cert. denied, 474 U.S. 935 (1985). Represented by
new counsel, Mr. Cooks filed an application for post-conviction relief in the
District Court of Comanche County. The district court denied relief and was
affirmed on appeal to the Oklahoma Court of Criminal Appeals. Cooks v. State,
Case No. PC-86-613 (Okla. Crim. App. Jan. 13, 1987), cert. denied, 481 U.S.
1072 (1987).
Mr. Cooks first filed a habeas petition in the United States District Court
for the Western District of Oklahoma in July 1987, whereupon the district court
held the petition in abeyance and ordered Mr. Cooks to exhaust his state remedies
on the issue of whether his jury was instructed properly on the heinous, atrocious,
or cruel aggravating circumstance in light of Maynard v. Cartwright, 486 U.S.
356 (1988). The Oklahoma trial court denied Mr. Cooks’ second application for
post-conviction relief. That decision was affirmed in Cooks v. State, Case No.
PC-89-131 (Okla. Crim. App. Jan. 11, 1993), cert. denied, 510 U.S. 851 (1993).
-3-
The district court ordered the federal case reopened in February 1994. Mr.
Cooks filed an amended habeas petition in May 1994. The court conducted an
evidentiary hearing on the ineffective assistance of counsel issue in August 1995
and allowed the parties to brief the issues raised in the amended petition. In
February 1997, the district court denied Mr. Cooks’ petition. Pursuant to the
then recently enacted provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), the district court granted Mr. Cooks a certificate of
appealability on certain issues.
Subsequent to the district court’s ruling, Lindh v. Murphy, 521 U.S. 320,
___, 117 S. Ct. 2059, 2068 (1997), held that § 2253(c) of the AEDPA (pertaining
to the certificate of appealability) applies only to cases filed after April 24, 1996.
Because Mr. Cooks’ amended petition was filed before that date, the certificate of
appealability is not a jurisdictional requirement in this case; rather, the district
court or this court must issue a certificate of probable cause. Because we
conclude Mr. Cooks has made a “substantial showing of the denial of [a] federal
right,” Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (internal quotation marks
and citation omitted), we grant a certificate of probable cause and proceed to
consider all Mr. Cooks’ issues, applying pre-AEDPA law.
-4-
DISCUSSION
Mr. Cooks raises four primary issues on appeal from the denial of his
habeas petition: (1) his post-arrest statements were involuntary and therefore
inadmissible; (2) the “continuing threat” and “heinous, atrocious, or cruel”
aggravating circumstances are unconstitutional and unsupported by sufficient
evidence; (3) certain jury instructions concerning mitigating circumstances
confused the jury and thus rendered his death sentence unconstitutional; and (4)
he received ineffective assistance of counsel during both the guilt and sentencing
stages of trial, as well as on direct appeal.
We review the district court’s legal conclusions concerning these issues de
novo and its factual findings for clear error. Hill v. Reynolds, 942 F.2d 1494,
1495 (10th Cir. 1991). Habeas relief must be granted only if the claimed
constitutional error “‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Kyles v. Whitley, 514 U.S. 419, 435-36 (1995)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If we are in
“grave doubt” about whether an error satisfies that standard, then the error cannot
be treated as harmless and the petitioner must prevail. O’Neal v. McAninch, 513
U.S. 432, 437-38 (1995).
-5-
I. Admissibility of Post-Arrest Statements
Mr. Cooks was arrested in the early morning of October 29, 1982. Police
advised him of his Miranda 1 rights upon arrest. Detectives attempted to question
Mr. Cooks later that same day; Mr. Cooks refused to answer questions, however,
and requested a lawyer. The following evening, October 30, a jailer informed
Detective Belcher that Mr. Cooks wanted to speak to him. Detective Belcher
again advised Mr. Cooks of his Miranda rights. Mr. Cooks signed a form
acknowledging those rights and stating he had voluntarily summoned the
detective and wished to provide information concerning Ms. Ridling’s murder.
Mr. Cooks then proceeded to make self-incriminating statements. Two days later,
November 1, Mr. Cooks made additional statements after detectives questioned
him regarding differences between his and Mr. Masters’ initial statements.
Again, Mr. Cooks affirmatively stated he understood his rights prior to providing
additional information without legal representation. 2
In his habeas petition and brief on appeal to this court, Mr. Cooks claims
his post-arrest statements were involuntary and acquired in violation of his
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
We note Mr. Cooks did not receive his court-appointed lawyer, Mr.
Hilliary, until November 12, 1982.
-6-
constitutional right to counsel. He argues, without elaboration, his mental
impairment and intellectual limits prevented him from comprehending the
“abstract concepts thrown at him by the detectives.” He further asserts “the
detectives initiated an interrogation, promised him leniency, and threatened him
with ‘the needle’ when he refused to talk.”
The district court concluded Mr. Cooks’ post-arrest statements were
voluntary, and found, “[b]ased upon a review of the particular facts and
circumstances of this case, including [Mr.] Cooks’ background and experience,”
Mr. Cooks “knowingly waived his right to remain silent.” We review the district
court’s findings of fact for clear error. See United States v. Bautista, 145 F.3d
1140, 1146 (10th Cir.), cert. denied, 1998 WL 480103 (U.S. Oct. 5, 1998) (No.
98-5584). However, the ultimate issue of voluntariness is subject to de novo
review, considering the entire record and the totality of the circumstances. Id. at
1149.
Mr. Cooks’ Fifth Amendment right to counsel attached the moment he
requested an attorney. United States v. Johnson, 42 F.3d 1312, 1318 (10th Cir.
1994) (citing Miranda v. Arizona, 384 U.S. 436, 444-45 (1966)), cert. denied, 514
U.S. 1055 (1995). However, if Mr. Cooks subsequently voluntarily initiated
-7-
further communication with law enforcement officials, the law recognizes he
effectively waived his previously invoked right to counsel. Edwards v. Arizona,
451 U.S. 477, 484-86 (1981); Oregon v. Bradshaw, 462 U.S. 1039, 1045-46
(1983). This same rule applies in the Sixth Amendment context to evaluate a
waiver of right to counsel after arraignment. Michigan v. Jackson, 475 U.S. 625,
635-36 (1986). A waiver is voluntary if the record demonstrates it “(1) ... was a
product of a free and deliberate choice rather than intimidation, coercion, or
deception, and (2) ... was made in full awareness of the nature of the right being
waived and the consequences of waiving.” Bautista, 145 F.3d at 1149.
By any account, the police Mirandized Mr. Cooks upon his arrest. Police
officers testified they repeated Mr. Cooks’ Miranda rights later that same day,
prior to attempting to interrogate him at the police station. The officers recalled
that Mr. Cooks refused at that time to make a statement and requested a lawyer.
Detective Belcher ceased the interrogation at that point. This exercise of rights
indicates Mr. Cooks understood from the beginning both the nature and
consequences of his right to remain silent and his right to counsel.
It is also undisputed that approximately twenty-four hours after police first
attempted to question Mr. Cooks, after Detective Mahamed allegedly suggested
-8-
Mr. Cooks would “get the needle” if he did not cooperate, and after he had been
formally arraigned, Mr. Cooks told a jailor he wished to speak to Detective
Belcher. Nothing in the record suggests police further pressured Mr. Cooks into
giving a statement without a lawyer present, or that Mr. Cooks was intimidated by
Detective Mahamed’s alleged statements. Indeed, a full day had passed with no
further attempt to speak to Mr. Cooks. When Detective Belcher came to the jail
at Mr. Cooks’ request, he carefully advised Mr. Cooks of his rights prior to any
conversation. Mr. Cooks signed an Advice of Rights form indicating he had an
eleventh grade education and affirming (1) he understood each component of his
Miranda rights, (2) no pressure or coercion had been used against him, and (3) he
nevertheless desired to make a statement and answer questions without an
attorney present. Mr. Cooks does not claim Detective Belcher or anyone else
made any promises, threats, or any further comments regarding “the needle” at
this time. After Detective Belcher typed Mr. Cooks’ responses to his questions,
Mr. Cooks signed the two-page statement, attesting it was a “true and accurate
account” of events and was given to the police “freely and voluntarily, without
fear of threat or promise of reward.” Mr. Cooks signed another Advice of Rights
form and typed statement after he spoke to Detectives Belcher and Mahamed on
November 1. Detective Belcher testified that on both occasions Mr. Cooks
appeared to understand his rights and did not appear to be under the influence of
-9-
intoxicants.
Having independently reviewed the entire record and totality of the
circumstances, we find no clear error in the district court’s finding Mr. Cooks
initiated his post-arrest, post-arraignment conversation with Detective Belcher,
and there was no deception, intimidation or coercion sufficient to taint Mr.
Cooks’ waiver of rights under the Fifth, Sixth, and Fourteenth Amendments.
Accordingly, we hold Mr. Cooks’ waiver of counsel and post-arrest statements
were voluntary, knowing and intelligent, and therefore deny habeas relief on this
ground.
II. Constitutionality of Aggravating Circumstances
“The constitutional validity of aggravating [circumstances] is a question of
law subject to de novo review.” United States v. McCullah, 76 F.3d 1087, 1107
(10th Cir. 1996), cert. denied, 117 S. Ct. 1699 (1997).
A. Continuing Threat to Society
Mr. Cooks claims the “continuing threat to society” aggravator is
unconstitutionally applied in Oklahoma because it “functions as a catch-all
circumstance that fails completely to narrow the class of individuals eligible for
-10-
death.” He further claims the “continuing threat” aggravator unconstitutionally
overlaps the “prior conviction” aggravator in this case.
This court already has upheld the constitutionality of Oklahoma’s
“continuing threat to society” aggravator inasmuch as Mr. Cooks claims it is
vague and fails to narrow the class of individuals eligible for death. Nguyen v.
Reynolds, 131 F.3d 1340, 1352-54 (10th Cir. 1997), cert. denied, 119 S. Ct. 128
(1998). That resolution binds this panel. United States v. Foster, 104 F.3d 1228,
1229 (10th Cir. 1997).
Mr. Cooks’ argument the “continuing threat” aggravator impermissibly
overlaps the “prior conviction” aggravator is likewise unavailing. It is true we
have held certain aggravating circumstances may impermissibly overlap and
therefore unconstitutionally skew the process of weighing aggravating and
mitigating circumstances. See McCullah, 76 F.3d at 1111-12. Such precedent
does not, however, stand for the proposition that any time evidence supports more
than one aggravating circumstance, those circumstances impermissibly overlap,
per se. The test we apply is not whether certain evidence is relevant to both
aggravators, but rather, whether one aggravating circumstance “necessarily
subsumes” the other. Id. at 1111. Under the facts and circumstances of this case,
-11-
there are two reasons the “continuing threat” aggravator did not subsume the
“prior conviction” aggravator.
First, although Mr. Cooks’ jury may have considered evidence of his prior
conviction of a violent crime in the context of determining the presence of both
the “prior conviction” and “continuing threat” aggravators, the “prior conviction”
circumstance focused the jury’s attention on the particular nature and
consequences of his past conduct, while the “continuing threat” aggravator
focused attention on the likelihood of future violent conduct. Second, under
Oklahoma law, evidence regarding the callous nature of a crime, alone, is
sufficient to support a jury’s finding a defendant poses a continuing threat to
society. See Coleman v. Saffle, 869 F.2d 1377, 1390 (10th Cir. 1989), cert.
denied, 494 U.S. 1090 (1990); Pennington v. State, 913 P.2d 1356, 1371 (Okla.
Crim. App. 1995), cert. denied, 117 S. Ct. 121 (1996). The record here is replete
with evidence that supports a finding Ms. Ridling’s murder was, indeed, callous.
Ms. Ridling was both elderly and disabled. Nevertheless, Mr. Cooks and Mr.
Masters broke into her home, held her down, and then gagged her with sufficient
force to lay her nose over to one side. The record further indicates that after
binding and gagging Ms. Ridling, Mr. Cooks raped her and then proceeded to
ransack her home and steal her possessions. Mr. Cooks and Mr. Masters then left
-12-
Ms. Ridling, immobilized on her bed, to die from asphyxiation. This evidence
invalidates any argument the jury’s finding that Mr. Cooks posed a continuing
threat to society was dependent on evidence he had committed a prior violent
crime. Because the “continuing threat” aggravator did not subsume the “prior
conviction” aggravator in this case, we find no constitutional error that warrants
habeas relief.
B. Heinous, Atrocious or Cruel
Mr. Cooks argues “Oklahoma has no genuinely meaningful or principled
narrowing construction for its ‘especially heinous, atrocious or cruel’ aggravating
circumstance,” as required by the Eighth and Fourteenth Amendments and
recognized by this court in Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.
1987), aff’d 486 U.S. 356 (1988). More specifically, he claims the second
paragraph of Jury Instruction No. 51 failed to sufficiently narrow the
circumstances within which this aggravator could be applied. 3 Even if we deem
3
Jury Instruction No. 51 read:
As used in these instructions, the term “heninous” [sic] means
extremely wicked or shockingly evil; “atrocious” means outrageously
wicked and vile; “cruel” means pitiless, or designed to inflict a high
degree of pain, utter indifference to, or enjoyment of, the sufferings
of others.
The phrase “especially heinous, atrocious, or cruel” is directed
-13-
the instruction sufficient, Mr. Cooks asserts “the State failed to prove the
‘heinous, atrocious, or cruel’ aggravating circumstance beyond a reasonable
doubt.”
We considered and rejected this same constitutional argument concerning
the same jury instruction in Duvall v. Reynolds, 139 F.3d 768, 792-93 (10th Cir.
1998), cert. denied, 119 S. Ct. 345 (1998). Oklahoma’s narrowed interpretation
of the “especially heinous, atrocious, or cruel” aggravator as articulated in the
second paragraph of the standard jury instruction was held to satisfy the
Cartwright standard in Hatch v. Oklahoma, 58 F.3d 1447, 1468-69 (10th Cir.
1995), cert. denied, 517 U.S. 1235 (1996). The Duvall decision extended Hatch
by opining that the Oklahoma courts consistently have “interpreted the ‘especially
heinous, atrocious, or cruel’ aggravator to require ‘torture’ and ‘serious physical
abuse’ as evidenced by proof of conscious physical suffering.” Duvall, 139 F.3d
at 793. Equally important, Duvall held Oklahoma courts consistently have
applied that standard when evaluating whether the evidence justifies a finding of
the “heinous, atrocious or cruel” aggravator. Id. Duvall therefore is dispositive
on this issue. Foster, 104 F.3d at 1229.
to those crimes where the death of the victim was preceded by torture
of the victim or serious physical abuse.
-14-
Furthermore, we conclude the record supports the jury’s finding that Ms.
Ridling experienced conscious physical suffering sufficient to establish torture or
serious physical abuse as interpreted by the Oklahoma courts. The record reveals
Ms. Ridling suffered injury to the urethral opening, as well as a “significant blow
to the head,” bruises on both sides of her face, over the knuckles, and on the top
of her left foot. Dr. Robert Dix, the state’s medical examiner, testified the
bruised knuckles and foot indicated she had hit and kicked her attacker. The
autopsy report likewise cited the fresh bruises as “evidence of a struggle.” With
regard to his findings concerning “asphyxiation due to gag” as the specific cause
of death, Dr. Dix testified there was evidence of a gag that left Ms. Ridling’s face
“quite distorted.” The upper part of her face was “very swollen” and, while the
indentations in the swollen tissue were not necessarily caused by force, the gag
was tied with sufficient pressure to lay Ms. Ridling’s nose “over to one side.” It
was Dr. Dix’s opinion Ms. Ridling “was alive for some time in order for that
swelling to take place in the face.” On cross-examination, Dr. Dix estimated it
took “more than an hour or two” for her death to occur. This evidence amply
supports application of the “heinous, atrocious or cruel” aggravator. Because we
hold that aggravator is not unconstitutional on its face or as applied in this case,
we deny Mr. Cooks’ request for habeas relief on this ground.
-15-
III. Jury Instructions Concerning Mitigating Circumstances
A. Jury Instruction No. 55 - Jury Discretion to Impose a Life
Sentence
Mr. Cooks asserts the trial court erroneously failed to inform the jury it had
the option to return a life sentence even if it found the aggravating circumstances
to outweigh the mitigating circumstances. He claims Jury Instruction No. 55
“misled the jury by implying it was required to find the existence of specific
mitigating circumstances before it could sentence [him] to life imprisonment.”
Jury Instruction No. 55 advised the jury:
If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, unless you also
unanimously find that any such aggravating circumstance or
circumstances out weigh [sic] the finding of one or more mitigating
circumstances, the death penalty shall not be imposed.
It is important to note Jury Instruction No. 55 was not the only instruction
concerning aggravating and mitigating circumstances. The court also instructed
the jury, in pertinent part:
Instruction No. 52
...
Should you unanimously find that one or more aggravating
circumstances existed beyond a reasonable doubt, you would be
authorized to consider imposing a sentence of death.
-16-
If you do not unanimously find beyond a reasonable doubt that
one or more of the aggravating circumstances existed, you are
prohibited from considering the penalty of death. In that event, the
sentence must be imprisonment for life.
Instruction No. 53
Mitigating circumstances are those which, in fairness and
mercy, may be considered as extenuating or reducing the degree of
moral culpability or blame. The determination of what are mitigating
circumstances is for you as jurors to resolve under the facts and
circumstances of this case.
We considered, but rejected, the same argument Mr. Cooks makes here,
concerning a substantially similar set of jury instructions, in Duvall, 139 F.3d at
789-92. We reach the same result here. Mr. Cooks is correct that under
Oklahoma law a jury may avoid the death penalty even if it finds aggravating
circumstances to outweigh mitigating circumstances. Duvall, 139 F.3d at 789-90.
However, state courts are not constitutionally bound to “‘affirmatively structure
in a particular way the manner in which juries consider mitigating evidence.’” Id.
at 790 (quoting Buchanan v. Angelone, ___ U.S. ___, 118 S. Ct. 757, 761
(1998)). Thus, so long as the court does not preclude the jury from giving effect
to any relevant mitigating evidence, it need not separately instruct the jury of its
option to return a life sentence regardless of its finding the aggravating
circumstances outweigh the mitigating circumstances. Id. at 790-91. On review,
we need only ensure there is no reasonable likelihood the jury applied the
-17-
challenged instruction in a way that prevented the consideration of relevant
evidence. Id. at 790; see also Castro v. Ward, 138 F.3d 810, 824 (10th Cir.), cert.
denied, 119 S. Ct. 422 (1998).
In this case, the instructions, read as a whole, did not preclude the jurors
from considering and giving effect to any mitigating circumstances in Mr. Cooks’
favor. Nor did they suggest the jury’s discretion to avoid the death penalty was
limited in any way. Instruction No. 53 expressly permitted the jury to consider
any evidence as mitigating evidence. We see no likelihood the jury would have
understood they were required to find a particular mitigating circumstance.
Instructions Nos. 54 and 55 merely authorized the jury to consider the death
penalty if, and only if, it unanimously found one or more aggravating
circumstances to outweigh any mitigating circumstances. These instructions
cannot fairly be read to have mandated imposition of the death penalty.
Accordingly, Mr. Cooks is not entitled to habeas relief on this ground.
B. Jury Instruction No. 54 - Minimum Mitigating Circumstances
Jury Instruction No. 54 advised the jury:
Evidence has been offered as to the following minimum
mitigating circumstances:
1. The defendant has no significant history of prior criminal
-18-
activity;
2. The age of the defendant at the time of the crime.
Whether these circumstances existed, and whether these
circumstances are mitigating, must be decided by you.
Mr. Cooks argues this jury instruction misled the jury into believing these
were the only mitigating circumstances that could support a life sentence.
Further, because Mr. Cooks claims these circumstances applied only to his co-
defendant, he argues the jury effectively was instructed there was no mitigating
evidence to support him. According to Mr. Cooks, the prejudice he suffered as a
result of Jury Instruction No. 54 was exacerbated by his co-defendant’s counsel’s
closing statements that Jury Instruction No. 54 “stated the law” and that his client
was “a young, inexperienced gentleman, led into crime by an older, convicted
criminal.”
As stated above, we review jury instructions pertaining to mitigating
evidence only to ensure there is no reasonable likelihood the jury applied the
challenged instruction in a way that prevented the consideration of relevant
evidence. Duvall, 139 F.3d at 790. While we appreciate Mr. Cooks’ concern Jury
Instruction No. 54 specified mitigating evidence that arguably did not apply to
-19-
him, 4 and referred to “the defendant” in the singular when in fact the case was
being tried against two defendants, we do not believe the instructions, read as a
whole, prevented the jury from considering any and all mitigating evidence that
might support either defendant.
Despite Jury Instruction No. 54's infirmities, the fact remains Instruction
No. 53 broadly defined mitigating circumstances as any circumstances that, “in
fairness and mercy, may be considered as extenuating or reducing the degree of
moral culpability or blame,” and then left the determination of what constituted
mitigating circumstances in this case to the jury’s sound discretion. We fail to see
how the specificity of Jury Instruction No. 54 in any way undermined the general
directives of Instruction No. 53. Moreover, we see nothing patently erroneous or
inappropriate in the closing comments of Mr. Masters’ counsel – certainly nothing
that rises to the constitutional level necessary to support Mr. Cooks’ habeas
petition. Consequently, relief is denied on this ground.
Mr. Cooks’ concerns with Jury Instruction No. 54 appear to stem not so
4
The instruction referred to evidence to the effect “[t]he defendant has no
significant history of prior criminal activity”; however, the jury had received
evidence regarding Mr. Cooks’ prior criminal activity.
-20-
much from the instructions themselves or the remarks of his co-defendant’s
counsel, but from his own attorney’s failure to present mitigating evidence on his
behalf, or to offer any alternative or supplemental instructions. We thus proceed
to consider Mr. Cooks’ ineffective assistance of counsel claims.
IV. Ineffective Assistance of Counsel
Mr. Cooks claims he received ineffective assistance of counsel at both the
guilt and sentencing stages of trial, as well as on direct appeal. An ineffective
counsel claim presents a mixed question of fact and law we review de novo.
Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir. 1997).
To prevail on this claim, Mr. Cooks must first demonstrate his counsel
“committed serious errors in light of ‘prevailing professional norms’” such that
his legal representation fell below an objective standard of reasonableness. 5
5
Mr. Cooks bases his ineffective assistance claim in large part on his
counsel’s relative inexperience and the failure of the Oklahoma court system to
appoint more qualified and experienced attorneys in capital cases. He asserts
these are crucial factors to consider when determining ineffectiveness of counsel.
Such reliance on inexperience and the imperfections of the court appointment
system is misplaced. When considering an ineffective assistance of counsel
claim, this court must focus on the attorney’s performance, not his experience.
An attorney with little or no prior experience certainly can render effective
assistance. Mr. Cooks therefore must demonstrate specific instances of deficient
conduct, not simply allege inexperience. See United States v. Cronic, 466 U.S.
648, 665 (1984); LaGrand v. Stewart, 133 F.3d 1253, 1275 (9th Cir.), cert.
-21-
United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993) (quoting Strickland
v. Washington, 466 U.S. 668, 688 (1984)). If Mr. Cooks demonstrates
constitutionally deficient performance, he must then show prejudice – “a
‘reasonable probability’ that the outcome would have been different had those
errors not occurred.” Id. at 955 (quoting Strickland, 466 U.S. at 694). This court
may address the performance and prejudice components in any order, but need
not address both if Mr. Cooks fails to make a sufficient showing of one.
Strickland, 466 U.S. at 697.
A. Trial Stage
According to Mr. Cooks, Mr. Hilliary failed to adequately investigate and
prepare for the guilt/innocence stage of trial, particularly with regard to
presentation of an intoxication defense. He asserts Mr. Hilliary’s defense strategy
“to hold the State to their burden of proof on each and every element of the crime
beyond a reasonable doubt, hoping ... that during the course of the trial there
would be some substantial errors ... and that the State would just not be able to
meet their burden of proof in the case,” amounted to no coherent defense strategy
at all. In support of this claim, Mr. Cooks relies in part on the testimony of Mr.
denied, 119 S. Ct. 422 (1998).
-22-
David Autry, an attorney with experience litigating capital offenses, who testified
as an “expert” during the 1995 evidentiary hearing in federal district court
concerning Mr. Cooks’ ineffective assistance of counsel claims. Mr. Autry
opined that Mr. Hilliary was ineffective during the guilt stage of trial, and that
Mr. Cooks was substantially prejudiced by his counsel’s errors and omissions.
Under the circumstances, we need express no opinion whether Mr.
Hilliary’s performance fell below the prevailing professional standard. Since Mr.
Cooks fails to prove he was in any way prejudiced by Mr. Hilliary’s performance,
we proceed directly to our analysis of that issue. See Castro, 138 F.3d at 832.
In evaluating prejudice during the guilt/innocence stage of trial, “the
question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466
U.S. at 695. To answer this question we must look at the totality of the evidence,
not just evidence that would have been helpful to Mr. Cooks’ case. See Brewer v.
Reynolds, 51 F.3d 1519, 1527 (10th Cir. 1995), cert. denied, 516 U.S. 1123
(1996); see also Robison v. Maynard, 829 F.2d 1501, 1510 (10th Cir. 1987).
Perhaps as Mr. Cooks suggests, Mr. Hilliary could have gathered and
-23-
presented further evidence of Mr. Cooks’ state of intoxication immediately prior
to the crime. The record demonstrates, however, the jury was generally aware
Mr. Cooks had been drinking for some time prior to entering Mrs. Ridling’s
home. In addition, during closing arguments, Mr. Hilliary told the jury Mr.
Cooks’ judgment had been impaired by his drinking. Mr. Cooks offers no cogent
argument the law provided an intoxication defense to the felony murder charges,
or that if an intoxication defense was available, he was intoxicated to the extent
he was incapable of forming the necessary criminal intent. Under these
circumstances, we fail to see how additional, more specific evidence of
intoxication would have had any bearing on the jury’s determination of Mr.
Cooks’ guilt.
Even more important to our analysis here is the fact the record is replete
with evidence of Mr. Cooks’ guilt, not the least of which is Mr. Cooks’ own
statements admitting he bound, gagged, raped, and robbed Mrs. Ridling. Mr.
Cooks’ admissions were corroborated by the post-arrest statements and trial
testimony of his co-defendant, Mr. Masters. For these reasons, we conclude there
is no reasonable probability Mr. Cooks would have avoided the murder conviction
had his counsel performed differently. Accordingly, Mr. Cooks was not
prejudiced by Mr. Hilliary’s performance during the guilt stage of trial, and he is
-24-
not entitled to habeas relief on this ground.
B. Sentencing Stage
Here again, the essence of Mr. Cooks’ claim is Mr. Hilliary’s alleged
failure to adequately investigate and prepare. With regard to the sentencing stage,
Mr. Cooks focuses primarily on mitigating evidence he claims was available at
trial, but which Mr. Hilliary, for no apparent strategical reason, failed to develop
and present to the jury as a reasonable explanation for Mr. Cooks’ criminal
conduct. Mr. Cooks identifies the following mitigating evidence in support of his
claim:
1. Mr. Cooks was a person of limited intellectual capacity;
2. he had endured an unhappy and deprived childhood;
3. he had a severe drinking problem, which began at an early age;
4. he had severe psychological and mental problems at the
time of the offense;
5. his mental problems were compounded at the time of the
offense by excessive drinking and use of the drug
commonly called PCP, which altered his ordinarily
peaceful, nonviolent disposition;
6. he was a good worker during intermittent periods of sobriety;
7. during periods when he was drug free and sober, he was
a responsible, caring and nonviolent person;
8. he repeatedly expressed remorse and shame in
-25-
connection with the incident that resulted in the death of
Ms. Ridling;
9. he had enlisted in the Navy at the age of eighteen, but
was honorably discharged after four months and twenty
days because of ineptitude.
Mr. Cooks argues such evidence would have presented “[a] powerful case in
mitigation ... that ... could have resulted in a life sentence, just as Mr. Masters,
the codefendant, received.”
The obligation to provide effective assistance of counsel unquestionably
extends to a capital sentencing hearing. Davis v. Executive Director of Dep’t of
Corrections, 100 F.3d 750, 756 (10th Cir. 1996), cert. denied, 117 S. Ct. 1703
(1997); Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir. 1994), cert. denied,
515 U.S. 1135 (1995). Indeed, we have recognized a need to apply even closer
scrutiny when reviewing attorney performance during the sentencing phase of a
capital case. “‘[T]he minimized state interest in finality when resentencing alone
is the remedy, combined with the acute interest of a defendant facing death,
justify a court’s closer scrutiny of attorney performance at the sentencing phase.’”
Moore v. Reynolds, 153 F.3d 1086, 1116 n.1 (10th Cir. 1998) (Brorby, J
dissenting) (quoting Osborn v. Shillinger, 861 F.2d 612, 626 n.12 (10th Cir.
1988)). Having carefully reviewed the trial and 1995 evidentiary hearing
transcripts with these principles in mind, we agree with Mr. Cooks his attorney
-26-
was ineffective at the sentencing stage.
Mr. Hilliary waived his opportunity to make an opening statement at the
outset of the sentencing hearing, called no witnesses, and presented no evidence
on Mr. Cooks’ behalf. Although he briefly cross-examined the prosecution’s two
witnesses, Mr. Hilliary did not cross-examine Mr. Cooks’ co-defendant, Mr.
Masters, who told the jury he did not strike Mrs. Ridling, tie her up or participate
in raping her. Mr. Masters nevertheless expressed remorse over Mrs. Ridling’s
death and testified he had no prior felony convictions, had trouble in school and
an unstable home life, and had consumed a case of beer and about four pints of
rum prior to breaking into Mrs. Ridling’s home. Mr. Masters characterized
himself as a follower rather than a leader. At the end of his testimony, Mr.
Masters told the jury he thought some useful purpose could be served if he was
given life imprisonment and asked the jury to spare him from the death penalty.
Aside from the limited cross-examination of the State’s witnesses, Mr. Cooks’
sentencing stage defense consisted solely of Mr. Long’s 6 brief (three transcript
pages) and generic closing argument reminding the jury of the seriousness and
finality of their sentencing decision and asking them to impose a sentence of life
6
Mr. Long was an older, more experienced attorney, who volunteered to
help his friend, Mr. Hilliary, defend Mr. Cooks.
-27-
imprisonment.
When invited to explain his sentencing stage strategy during the 1995
evidentiary hearing, Mr. Hilliary stated he understood the importance of the
sentencing stage and “attempted to develop a second stage strategy.” Mr. Hilliary
further testified he and Mr. Long attempted to “gather and glean evidence that
would have been helpful to Mr. Cooks in the second stage of the trial.” Notably,
however, Mr. Hilliary never articulated a strategy and later admitted “there was
not much second[] stage defense put on.”
Indeed, we are unable to glean from the record any second stage strategy
developed to defend Mr. Cooks against the death penalty. What is more, by all
accounts, Mr. Hilliary’s investigative efforts were minimal. Mr. Hilliary spoke to
Mr. Cooks’ wife on several occasions before and during trial, and to Mr. Cooks’
mother and two of his brothers during trial recesses. However, by Mr. Hilliary’s
own admission, he did not speak to Mr. Cooks’ stepfather; did not investigate Mr.
Cooks’ school records or speak to Mr. Cooks’ teachers; did not investigate Mr.
Cooks’ military records; and, because he was aware the Department of
Corrections questioned the credibility of the state hospital’s mental evaluations,
did not review any records concerning Mr. Cooks’ mental evaluation or introduce
-28-
as evidence a letter from the state hospital stating Mr. Cooks was not considered
dangerous to himself or society. Mr. Hilliary further admitted he was not aware
of Mr. Cooks’ abusive childhood environment prior to trial. Mr. Hilliary testified
he and Mr. Long discussed the possibility Mr. Cooks’ documented good behavior
during a prior incarceration could be used as mitigating evidence, but he left the
decision whether to present such evidence to Mr. Long. On cross-examination,
Mr. Hilliary admitted he should have used that evidence during the sentencing
stage. Perhaps most troubling is the fact Mr. Hilliary stated he knew Mr. Cooks
was remorseful, but offered no reason, strategic or otherwise, to explain why he
did not consider putting Mr. Cooks on the witness stand during the sentencing
stage.
This is not a case in which the defendant refused to testify or otherwise
influenced the reasonableness of counsel’s actions. See Brecheen, 41 F.3d at
1369-70. Nor could counsel argue the available mitigating evidence conflicted
with the trial defense. See Stafford v. Saffle, 34 F.3d 1557, 1563 (10th Cir. 1994),
cert. denied, 514 U.S. 1099 (1995). This also is not a case in which counsel
reasonably investigated the defendant’s background, but found no one willing to
testify, see, e.g., Nguyen, 131 F.3d at 1348-49, or determined the mitigating
-29-
evidence Mr. Cooks now relies on could do more harm than good. 7 See Burger v.
Kemp, 483 U.S. 776, 790-91 (1987); Brecheen, 41 F.3d at 1367. Rather, this is a
case in which counsel admitted his investigation was limited, admitted he should
have presented certain mitigating evidence and, most important, offered no
strategy, reasonable or otherwise, to explain his performance during the
sentencing stage. Even applying the presumption of adequate performance, we
cannot help but conclude counsel failed under these circumstances to satisfy his
“duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.
Accordingly, we hold Mr. Cooks was denied effective assistance of counsel
during the sentencing stage of his trial.
We must now determine whether Mr. Hilliary’s substandard performance
prejudiced Mr. Cooks at the sentencing stage. Mr. Cooks seems to argue the
circumstances of his case warrant application of the presumption of prejudice
acknowledged in United States v. Cronic, 466 U.S. 648, 658-60 (1984).
According to Mr. Cooks, his counsel’s inaction during the sentencing stage
7
Mr. Hilliary did determine the testimony of Mr. Cooks’ mother and
brothers could have done more harm than good; however, there were numerous
other sources of mitigating evidence Mr. Hilliary did not similarly evaluate.
-30-
transformed that phase of trial “into a proceeding dominated exclusively by the
State,” and thus failed “to subject the prosecution’s case to meaningful
adversarial testing.” If the adversary process during the penalty phase failed, Mr.
Cooks argues his death sentence was rendered presumptively unreliable.
The Supreme Court in Cronic recognized that in rare instances it may be
appropriate to presume prejudice “without inquiry into counsel’s actual
performance at trial,” because the circumstances “are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.”
Cronic, 466 U.S. at 658, 662. Circumstances that justify a presumption of
prejudice include the absence of counsel at a critical stage of trial, the denial of
the right to effective cross-examination, and the complete failure to subject the
prosecution’s case to adversarial testing; but, as the Supreme Court points out, a
presumption of prejudice is the exception, not the rule. Id. at 659.
Although we agree Mr. Hilliary was ineffective during the sentencing stage,
his failures do not amount to the kind of actual or constructive denial of counsel
necessary to trigger a presumption of prejudice. Mr. Hilliary was present in the
courtroom. He conducted limited cross-examination, made evidentiary objections,
and gave a closing argument. Hence, this case falls outside the narrow Cronic
-31-
exception.
Since Cronic does not apply, Mr. Cooks must affirmatively prove actual
prejudice by demonstrating “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 693-94. As applied to the sentencing stage of his trial,
Mr. Cooks must demonstrate “a reasonable probability that, absent the errors, the
sentencer ... would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695. Mr. Cooks has not met this
standard.
“In evaluating prejudice, we must keep in mind the strength of the
government’s case and the aggravating [circumstances] the jury found as well as
the mitigating factors that might have been presented.” Castro, 138 F.3d at 832
(internal quotations omitted). Here the jury found three aggravating
circumstances to support Mr. Cooks’ death sentence: (1) his previous conviction
of a felony involving the use or threat of violence; (2) the heinous, atrocious or
cruel nature of Mrs. Ridling’s murder; and (3) the continuing threat Mr. Cooks
presented to society. As discussed above, the government presented abundant
evidence to support each of these circumstances. The mitigating evidence Mr.
-32-
Hilliary could have presented to counterbalance these aggravating circumstances
centered on Mr. Cooks’ troubled childhood, borderline I.Q., and history of
alcohol and drug abuse. The jury also would have learned Mr. Cooks was
nonviolent when sober, but was intoxicated on the night of the crime, and he was
remorseful over Mrs. Ridling’s death.
While we are troubled by Mr. Hilliary’s failure to discover and/or present
available mitigating evidence without good reason, the benchmark for evaluating
Mr. Cooks’ ineffectiveness claim during the sentencing stage remains “whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Strickland,
466 U.S. at 686. Applying this standard, we conclude there is no reasonable
probability the available mitigating evidence would have led the jury to a
different result. Mr. Cooks’ background, together with the nature and
circumstances of Mrs. Ridling’s death, presented a strong case in support of the
three determinative aggravating circumstances. Mr. Cooks was a convicted felon
who, by his own admission, broke into the home of a handicapped, elderly
woman, bound and gagged her, raped her, robbed her, and left her lying on her
bed, partially clothed, to slowly suffocate. The available mitigating evidence
simply did not outweigh these aggravating circumstances. Consequently,
-33-
counsel’s substandard performance did not so undermine the proper functioning
of the adversarial process that the sentencing proceeding cannot be relied on as
having produced a just result. Mr. Cooks’ request for habeas relief on this ground
fails.
C. Direct Appeal
Mr. Cooks asserts his counsel failed on direct appeal to raise “several
critical issues” that would have required reversal of his conviction, or, at a
minimum, vacation of the death sentence. Notably, however, Mr. Cooks
identifies only two issues he suggests are “dead-bang winners” – issues which, if
not raised on direct appeal, demonstrate ineffective representation, see Banks v.
Reynolds, 54 F.3d 1508, 1515 n.13 (10th Cir. 1995): (1) the unconstitutionality
of aggravating circumstances, and (2) the inadmissibility of his post-arrest
statements. Because we have denied habeas relief on the merits of both these
issues, Mr. Cooks’ counsel cannot be said to have been ineffective for failing to
raise them on direct appeal, and Mr. Cooks’ conviction cannot be reversed on this
ground.
-34-
CONCLUSION
We are forever mindful that “‘[o]ur duty to search for constitutional error
with painstaking care is never more exacting than it is in a capital case.’”
Brecheen, 41 F.3d at 1370 (quoting Burger, 483 U.S. at 785)). We thus have
given careful consideration to each of Mr. Cooks’ claims. Finding no
constitutional error for the reasons stated, we AFFIRM Mr. Cooks’ conviction
and sentence.
-35-
| {
"pile_set_name": "FreeLaw"
} |
653 So.2d 595 (1995)
Charles E. GORDON
v.
WASTE MANAGEMENT OF NEW ORLEANS (RESIDENTIAL).
No. 95-C-0691.
Supreme Court of Louisiana.
April 28, 1995.
*596 Denied.
DENNIS, J., not on panel.
| {
"pile_set_name": "FreeLaw"
} |
652 So.2d 1134 (1994)
Henry Brooks CLEVELAND, individually and as executor of the Estate of Mabel B. Cleveland, deceased
v.
COMPASS BANK.
COMPASS BANK
v.
Henry Brooks CLEVELAND, individually and as executor of the Estate of Mabel B. Cleveland, deceased.
1930136, 1930211.
Supreme Court of Alabama.
September 16, 1994.
Rehearing Denied January 13, 1995.
*1135 Deidre W. Lee, Fairhope, Susan J. Watterson, Birmingham, for appellants/cross appellee Cleveland.
C. Fred Daniels of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellee/cross appellant Compass Bank.
ALMON, Justice.
Henry Brooks Cleveland ("H.B. Cleveland"), individually and as executor of the estate of Mabel Cleveland, appeals from a judgment apportioning estate tax liability among various trusts and estates. Compass Bank (successor to Central Bank), as trustee of certain trusts and as executor of the estate of Henry Fling Cleveland ("H.F. Cleveland"), filed a declaratory judgment action for a determination as to which estate or trust owed certain estate taxes. Compass Bank also appeals from the judgment. These appeals involve the estates of H.F. Cleveland, who died July 9, 1988, and his wife Mabel Brooks Cleveland ("Mabel Cleveland"), who died January 15, 1990. Also involved is a revocable inter vivos trust created by H.F. Cleveland on July 8, 1985 ("H.F. Cleveland Trust"), and an irrevocable inter vivos trust created by Mabel Cleveland on July 15, 1986 ("Mabel Cleveland Trust"). The Q-TIP[1] portion of the H.F. Cleveland Trust and all of the Mabel Cleveland Trust were included in Mabel Cleveland's gross estate. The issues concern the apportionment of estate tax liability of Mabel Cleveland's estate among the H.F. Cleveland Trust, the Mabel Cleveland Trust, and the estate of Mabel Cleveland.
Under the terms of the H.F. Cleveland Trust, H.F. Cleveland was to receive income for his lifetime. Upon his death, Mabel Cleveland was to receive income for her lifetime. Upon her death, income from the H.F. Cleveland Trust was to be paid to H.B. Cleveland, the couples' only child. Upon the death of H.B. Cleveland, the remainder of the H.F. Cleveland Trust was to be paid to another trust called the "Henry Fling Cleveland Trust," a charitable trust for the benefit of Birmingham-Southern College and First United Methodist Church of Birmingham. Compass Bank was also named trustee of the Henry Fling Cleveland Trust.
After H.F. Cleveland's death on July 9, 1988, his will and codicils were offered for probate. In his will, H.F. Cleveland directed that his executor make a Q-TIP election after considering the best interests of his family. Central Bank elected to treat a fractional part of the H.F. Cleveland Trust as "qualified terminable interest property" ("Q-TIP"), qualifying this part of the H.F. Cleveland Trust for the marital deduction under I.R.C. § 2056(b)(7). The total Q-TIP portion of the H.F. Cleveland Trust is approximately $2.9 million.
As suggested above, a Q-TIP election bears on the right to exercise the marital deduction of I.R.C. § 2056(b)(1) with regard to property that would not otherwise qualify for it. The general rule of I.R.C. § 2056(b)(1) provides that an interest passing to a spouse does not qualify for the marital deduction (1) if the interest is terminable, (2) if the decedent has also given an interest in the property to another, and (3) if upon the termination or failure of the spouse's interest, the other person comes into possession or enjoyment of the property by way of his interest. In 1981, Congress enacted the Qualified Terminable Interest Property provision, creating an exception to this rule, whereby an executor may elect to treat a life estate as a non-terminable interest. I.R.C. § 2056(b)(7). The exercise of this election and the taking of the marital deduction have the legal effect of removing this Q-TIP property from the estate of the creator of the Q-TIP property and including it in the estate of the recipient spouse when he or she dies.
To ameliorate the tax burden caused to the spouse in whose gross estate the Q-TIP property is included, Congress enacted I.R.C. § 2207A. Section 2207A provides that if a decedent's gross estate includes any Q-TIP property, the executor or administrator may recover the amount of estate tax attributable to the inclusion of that property from a "person receiving the property," unless the decedent's will provides otherwise. A "person *1136 receiving the property" is defined to include the trustee of a trust holding the Q-TIP property at the time of the decedent's death and any person receiving a distribution of such property if the property does not remain in trust.
The equitable life estate of Mabel Cleveland was by definition a terminable interest, which would not otherwise qualify for the marital deduction. To allow the estate of H.F. Cleveland to take the marital deduction with regard to this part of the estate, Central Bank made the Q-TIP election. The effect of the exercise of the Q-TIP election and the marital deduction was that the estate of H.F. Cleveland did not pay any estate tax and that the Q-TIP portion of the H.F. Cleveland Trust was included in the gross estate of Mabel Cleveland when she died.
On July 15, 1986, Mabel Cleveland created an irrevocable inter vivos trust, the Mabel Cleveland Trust, under which she retained a life income interest[2] and under which H.B. Cleveland was named trustee. Under the terms of the Mabel Cleveland Trust, upon the death of Mabel Cleveland the trust terminated and H.B. Cleveland received a distribution of the trust corpus. The Mabel Cleveland Trust provided that the trustee of the Mabel Cleveland Trust would "reimburse [from trust funds] the executor of Mabel Cleveland's estate for the proportionate part of death taxes paid by reason of the inclusion of such trust property [i.e., the property in the Mabel Cleveland Trust] in the gross estate" of Mabel Cleveland.
Compass Bank filed a declaratory judgment action to determine the respective liabilities of the estate of Mabel Cleveland, the H.F. Cleveland Trust, and the Mabel Cleveland Trust for the federal and Alabama estate taxes due on the estate of Mabel Cleveland. On November 18, 1991, the circuit court entered an order granting in part and denying in part a motion for a partial summary judgment filed by Compass Bank and the motion for a partial summary judgment filed by H.B. Cleveland. In that order, the circuit court correctly held that the H.F. Cleveland Trust was liable under § 2207A for that portion of the federal estate taxes attributable to the inclusion of the Q-TIP property in the estate of Mabel Cleveland, together with interest and penalties. The circuit court held that Compass Bank, as trustee, was liable for $867,407 in federal estate tax, exclusive of interest and penalties.
The circuit court also held that the estate of Mabel Cleveland was liable for all other federal and Alabama estate taxes other than that amount of federal and Alabama estate tax attributable to the inclusion in the estate of any property of the Mabel Cleveland Trust, whose payment the trustee of the Mabel Cleveland Trust was obligated to reimburse.
H.B. Cleveland's appeal raises the issue whether the H.F. Cleveland Trust is liable to the estate of Mabel Cleveland for Alabama estate tax attributable to the property included in her gross estate as a result of the Q-TIP election of the estate of H.F. Cleveland.
H.B. Cleveland argues that, as executor, he is entitled to recover from the H.F. Cleveland Trust the Alabama estate tax, in addition to the federal estate tax, attributable to the inclusion of the value of the Q-TIP property in the estate of Mabel Cleveland. He argues that I.R.C. § 2207A preempts the question of the apportionment of Alabama estate tax liability between the estate of Mabel Cleveland and the H.F. Cleveland Trust. H.B. Cleveland contends that I.R.C. § 2207A and 26 C.F.R. § 20.2207A-1 govern apportionment of Alabama, as well as federal, estate tax liability attributable to the value of Q-TIP property, because, he says, I.R.C. § 2207A apportions "total tax," not just federal estate tax, liability.
Compass Bank counters with the argument that no federal or state statute and no provision of either Mabel Cleveland's will or the Mabel Cleveland Trust requires or allows the executor of the estate of Mabel Cleveland to recover Alabama estate tax attributable to Q-TIP property from the H.F. Cleveland Trust. Compass Bank contends first that *1137 I.R.C. § 2207A provides only for the recovery of federal estate tax attributable to Q-TIP property; § 2207A, it says, makes no mention of state estate tax. Second, Compass Bank argues that, absent a provision of a will stating otherwise, Ala.Code 1975, § 40-15-18, provides that all federal and state estate taxes are borne by the residue of the estate rather than being borne by or apportioned out of the property passing to legatees and other beneficiaries. Compass Bank notes that certain preferred claims, e.g., specific bequests and the share of a dissenting widow, are not burdened with estate taxes so long as the general or residuary estate is sufficient to pay the taxes, citing Cox v. United States, 421 F.2d 576 (5th Cir.1970). Compass Bank contends that "[b]y analogy, property passing outside a will [i.e., Q-TIP property] is similar to a legacy or other preferred share since it is not burdened with the decedent's debts or administrative expenses. Like a widow's share, it should be preferred over the residuary or general estate in the payment of estate taxes, unless the decedent directs otherwise." Compass Bank argues, finally, that Alabama has had an opportunity to enact an equivalent to I.R.C. § 2207A, but has chosen not to do so. The applicable rule, Compass contends, is therefore the general rule of nonapportionment.
I.R.C. § 2207A states, in pertinent part:
"(a) Recovery with respect to estate tax.
"(1) In general. If any part of the gross estate consists of property the value of which is includible in the gross estate by reason of section 2044 (relating to certain property for which marital deduction was previously allowed), the decedent's estate shall be entitled to recover from the person receiving the property the amount by which
"(A) the total tax under this chapter which has been paid, exceeds
"(B) the total tax under this chapter which would have been payable if the value of such property had not been included in the gross estate.
"(2) Decedent may otherwise direct by will. Paragraph (1) shall not apply if the decedent otherwise directs by will."
The Supreme Court of the United States in Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106 (1942), held that in the absence of congressional enactments to the contrary state law should govern the allocation of the burden of estate taxes. Thus, Alabama law must determine which of these parties is to bear the responsibility of paying the Alabama estate taxes.
Alabama has no special statute apportioning state estate tax liability attributable to the inclusion of the value of Q-TIP property in the estate of the decedent. Alabama, however, does have a general statute apportioning "all estate taxes, whether state or federal," to the residue of the decedent's estate. Ala.Code 1975, § 40-15-18.
Section 40-15-18 provides:
"Unless the decedent directs otherwise in his will, all estate taxes, whether state or federal, payable by reason of the death of the decedent, shall be paid by the executor or other personal representative out of the estate property and shall be a charge against the residue thereof, and the executor or other personal representative shall be under no duty to recover from anyone for the benefit of the estate the pro rata portion of the estate tax attributable to inclusion in the gross estate of any property, including proceeds of policies of insurance upon the life of the decedent receivable by a beneficiary other than the executor or other personal representative, which does not pass to the executor or other personal representative as a part of the estate."
We hold that I.R.C. § 2207A does not preempt § 40-15-18 and that under the nonapportionment rule of § 40-15-18 the Alabama estate tax attributable to the Q-TIP property included in the estate of Mabel Cleveland is a charge against the residue of her estate. Section 2207A clearly preempts § 40-15-18 with regard to the payment of federal estate taxes attributable to Q-TIP property; however, § 2207A makes no specific *1138 provision for the apportionment of state estate taxes. H.B. Cleveland argues that § 2207A applies to the "total tax" payable by reason of the death of the decedent; however, Compass Bank correctly points out that the phrase "total tax" in § 2207A is part of the complete phrase, "total tax under this chapter," meaning federal estate tax. H.B. Cleveland argues that, because Alabama's estate tax is defined in terms of the maximum allowable deduction from estate tax for state estate taxes actually paid (i.e, a "sponge tax" or "pick-up tax"), the state tax is in reality a part of the total tax. See I.R.C. § 2011; Ala.Code 1975, § 40-15-2. We are not persuaded by this argument. The Alabama estate tax is imposed by § 40-15-2 of the Alabama Code, not "under [the] chapter" of the Internal Revenue Code pertaining to federal estate tax.
H.B. Cleveland also argues that, contrary to the contentions of Compass Bank, § 40-15-18 does not prevent recovery of Alabama estate tax from the H.F. Cleveland Trust. He contends that § 40-15-18 does not preclude recovery of such taxes, but that it provides only that the executor is not under a duty to recover them. According to H.B. Cleveland, § 40-15-18 states only which party is "primarily liable" for the payment of estate taxes, not which party is "ultimately" liable for such taxes. Such a construction of § 40-15-18, H.B. Cleveland says, is necessary to avoid unjust and inequitable consequences.
With regard to the argument that § 40-15-18 does not preclude recovery of Alabama estate taxes attributable to Q-TIP property included in the gross estate of a decedent, but only relieves the executor of the duty of recovering those taxes, we conclude that the statute dictates otherwise. Although § 40-15-18 states that the executor or other personal representative shall be under no duty to recover the pro rata portion of the estate tax attributable to the inclusion of any property in the gross estate, it clearly provides that "all estate taxes, whether state or federal, payable by reason of the death of the decedent, shall be paid by the executor or other personal representative out of the estate property and shall be a charge against the residue thereof." The intention of the legislature should be given effect. Unless a decedent directs otherwise in his will, all estate taxes, whether state or federal, shall be paid by the executor from the property of the estate and such taxes shall be a charge against the residue of the estate. Mrs. Cleveland's will is silent as to the payment of estate taxes.
Alabama's anti-apportionment statute definitely takes the minority position in regard to apportioning the tax burden. Cox v. United States, 421 F.2d 576, 584 (5th Cir.1970); Annotation, 71 A.L.R.3d 247 § 3[a] (1976); see also, Estate of DeVoss, 474 N.W.2d 542 (Iowa 1991). However, the legislature, if anyone, should be responsible for changing a legislative enactment that has been in effect since 1951. The legislature has changed its position with regard to the apportionment of taxes in some areas, e.g., with regard to the generation-skipping tax, but has not done so for Q-TIP property and has not changed the general rule against nonapportionment. We are bound by the terms of § 40-15-18.
We have considered the other arguments made by H.B. Cleveland and find them not to have merit or not to have been preserved for review. The circuit court did not err in holding that the H.F. Cleveland Trust is not liable for the Alabama estate taxes due on the Q-TIP property.
The first issue raised in Compass Bank's appeal is whether the amount of federal tax owed by the estate of Mabel Cleveland that the Mabel Cleveland Trust directs the trustee to pay reduces pro rata the H.F. Cleveland Trust's obligation under I.R.C. § 2207A to pay the federal estate tax owed by the estate of Mabel Cleveland attributable to the Q-TIP property.
Compass Bank concedes that § 2207A allows the estate of Mabel Cleveland to recover federal tax attributable to the inclusion of Q-TIP property in her estate; Compass Bank argues, however, that the amount of federal tax that the trustee of the Mabel Cleveland Trust is obligated to pay under § 10 of the Mabel Cleveland Trust agreement reduces the amount of federal tax that Compass Bank must pay under § 2207A. Compass Bank contends that the § 2207A right of recovery *1139 should be considered in light of § 10 of the Mabel Cleveland Trust agreement, which, it says, directs the trustee to pay the trust's proportionate share of federal and state estate taxes. H.B. Cleveland counters with the argument that § 10 of the Mabel Cleveland Trust does not affect the liability of the H.F. Cleveland Trust under § 2207A for the amount of federal estate tax attributable to the Q-TIP property.
In the circumstances of this case, § 2207A undisputedly establishes and defines the liability of the H.F. Cleveland Trust for a portion of the federal estate tax owed by the estate of Mabel Cleveland. Under § 2207A, the decedent's estate may recover from the H.F. Cleveland Trust that amount of federal estate tax attributable to the inclusion of the Q-TIP property in the estate of Mabel Cleveland.
Section 10 of the Mabel Cleveland Trust agreement establishes and defines the liability of that trust for a portion of the federal and state estate tax owed by the estate of Mabel Cleveland. Section 10 provides:
"Tax Provision. If any executor, administrator, or other person acting in a fiduciary capacity has paid death taxes, levied or assessed under the provisions of any state or federal, or state and federal, inheritance or succession tax or estate tax laws now existing or hereafter enacted, and if under the provisions of any such law any or all of the trust property is required to be included in the gross estate of the Grantor, the Trustee is directed to reimburse such executor, administrator, or other person acting in a fiduciary capacity for that proportionate part of the death taxes paid by reason of the inclusion of such trust property in the gross estate of the Grantor."
Under § 10 the Mabel Cleveland Trust is liable only for that amount of federal and Alabama estate tax attributable to the inclusion of the Mabel Cleveland Trust property in the estate of Mabel Cleveland. Thus, the obligation of the Mabel Cleveland Trust under § 10 does not extend to the amount of federal and Alabama estate tax attributable to the inclusion in the estate of Mabel Cleveland of property of the H.F. Cleveland Trust, and the circuit court properly held the H.F. Cleveland Trust liable for the entire amount of federal estate tax on the Q-TIP property in the H.F. Cleveland Trust.
The other issue in Compass Bank's appeal is whether the circuit court properly held the H.F. Cleveland Trust liable under I.R.C. § 2207A for interest and penalties, which, Compass Bank alleges, are attributable to alleged negligence and misconduct on the part of H.B. Cleveland as executor of the estate of Mabel Cleveland.
Compass Bank contends that H.B. Cleveland breached his fiduciary duty in his handling of the affairs of the estate of Mabel Cleveland and thereby caused the H.F. Cleveland Trust to incur liability for penalties and interest charged on the amount of unpaid federal estate tax owed by the estate of Mabel Cleveland because of the Q-TIP property. According to Compass Bank, I.R.C. § 2207A charges interest and penalties to the H.F. Cleveland Trust to the extent that interest and penalties on the estate are attributable to tax liability under I.R.C. § 2207A. Compass Bank argues that H.B. Cleveland negligently caused the H.F. Cleveland Trust to be liable for these penalties and this interest, and that therefore H.B. Cleveland ought to pay them.
H.B. Cleveland counters by arguing that I.R.C. § 2207A(d) imposes penalties upon, and charges interest to, the H.F. Cleveland Trust and that this statute contains no provision for the imposition of such penalties and the charging of such interest to the executor of the decedent's estate. H.B. Cleveland also argues that he has not negligently handled the affairs of the estate of Mabel Cleveland.
Section 2207A(d) states:
"In the case of penalties and interest attributable to additional taxes described in subsections (a) and (b), rules similar to subsections (a), (b), and (c) shall apply."
This section, together with § 2207A(a), imposes on the H.F. Cleveland Trust all penalties and interest on the amount of tax attributable to the Q-TIP property. The trial court in this case heard all of the evidence and ruled that H.B. Cleveland was not responsible for the interest and penalties that *1140 are attributable to the Q-TIP property. Nothing in the record indicates that this ruling was incorrect. Under the facts of this case, the circuit court did not err in holding Compass Bank, as trustee for the H.F. Cleveland Trust, liable for all penalties and interest corresponding to the unpaid amount of federal estate tax attributable to the Q-TIP property.
For the reasons stated above, we affirm the judgment.
AFFIRMED.
HORNSBY, C.J., and KENNEDY, INGRAM and COOK, JJ., concur.
SHORES and HOUSTON, JJ., recused.
NOTES
[1] I.R.C. § 2056(b)(7) provides for "qualified terminable interest property" ("Q-TIP"), which allows a marital deduction where one would not otherwise be available.
[2] As with H.F. Cleveland, this retained life income interest meant that the trust was includable in her estate.
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J-S58018-16
NON-PRECEDENTIAL DECISION–SEE SUPERIOR COURT I.O.P. 65.37
ARTHUR LEE EARNEST IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MAZZA LAW GROUP & STEVEN P.
TRIALONAS
No. 2052 MDA 2015
Appeal from the Order Entered September 4, 2015
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2015-3376
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 21, 2016
Arthur Lee Earnest appeals from the September 4, 2015 order
dismissing this pro se legal malpractice case, wherein Appellant sought to
proceed in forma pauperis, as frivolous under Pa.R.C.P. 240(j). We affirm.
The following recitation of the facts is taken from two prior
unpublished memoranda1 pertaining to Appellant’s criminal matter. The
____________________________________________
1
See Commonwealth v. Earnest, 30 A.3d 534 (Pa.Super. 2011)
(unpublished memorandum), and Commonwealth v. Earnest, 87 A.3d
882 (Pa.Super. 2013) (unpublished memorandum). We conclude that the
unpublished memoranda can be relied upon by this Court pursuant to IOP
§ 65.37:
A. An unpublished memorandum decision shall not be relied
upon or cited by a Court or a party in any other action or
proceeding, except that such a memorandum decision may
(Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court.
J-S58018-16
outcome of that criminal proceeding forms the basis for the present legal
malpractice action against Appellees, The Mazza Law Group, P.C. and
Steven P. Trialonas. On November 6, 2009, Appellant was tailgating a car
being driven by Chris McCully on Route 45 in Centre County, and Appellant
nearly struck Mr. McCully’s car. When the vehicles entered a passing zone,
Mr. McCully slowed his vehicle so that Appellant could pass it. Instead,
Appellant continued to closely follow Mr. McCully, and, when the vehicles
arrived at a stop sign, Appellant exited his car, approached Mr. McCully’s
vehicle, and attempted to stab Mr. McCully in the neck with a screwdriver.
Mr. McCully deflected the screwdriver, which scraped his neck and
penetrated his shoulder. The two men struggled, and Appellant threatened
to kill the victim, who managed to fight off Appellant and drive away.
Based upon this incident, at a nonjury trial, Appellant was convicted
of two counts of aggravated assault (attempting to inflict serious bodily
_______________________
(Footnote Continued)
be relied upon or cited (1) when it is relevant under the
doctrine of law of the case, res judicata, or collateral
estoppel, and (2) when the memorandum is relevant to a
criminal action or proceeding because it recites issues raised
and reasons for a decision affecting the same defendant in a
prior action or proceeding. When an unpublished
memorandum is relied upon pursuant to this rule, a copy of
the memorandum must be furnished to the other party and
to the Court.
Pa.Super.Ct. IOP § 65.37. It is clear from the facts averred herein that
Appellant already has copies of these memoranda.
-2-
J-S58018-16
injury and inflicting bodily injury with a deadly weapon), terroristic threats,
two counts of simple assault, harassment, and careless driving. The
matter proceeded to sentencing, where it was revealed that Appellant had
an extensive history of violence, including a prior road-rage incident. The
sentencing court imposed a standard range sentence of seven to fourteen
years imprisonment. On appeal, we affirmed, rejecting Appellant’s
challenge to the sufficiency of the evidence relating to whether he
attempted to cause serious bodily injury for purposes of the relevant
aggravated assault conviction. Commonwealth v. Earnest, 30 A.3d 534
(Pa.Super. 2011) (unpublished memorandum).
Appellant thereafter filed a timely pro se PCRA petition, and Mr.
Trialonas was appointed as counsel for purposes of the PCRA matter. The
PCRA court conducted a hearing and then denied relief. On appeal,
Appellant argued that the PCRA court erred in failing to find that trial
counsel was ineffective for not conveying a plea offer 2 and not requesting
that Appellant be sentenced on the second count of aggravated assault
rather than the first one. We concluded that the issues were waived due to
the fact a transcription of the PCRA hearing was not contained in the
____________________________________________
2
Appellees represent that trial counsel testified at that hearing that he did
tell Appellant about the plea offer and that Appellant rejected it against
legal advice. While that testimony is not expressly discussed in the 2013
memorandum, we conclude that it can fairly be implied from the outcome
of the PCRA proceeding at the PCRA court level.
-3-
J-S58018-16
record. Commonwealth v. Earnest, 87 A.3d 882 (Pa.Super. 2013)
(unpublished memorandum).
On August 24, 2015, Appellant instituted this legal malpractice action
against Appellees based upon their representation of him during the PCRA
proceeding. Our review of the pro se complaint indicates that Appellant’s
malpractice case was premised upon Appellees’ failure to obtain a
transcript of the PCRA hearing for purposes of appeal and for neglecting to
investigate unspecified issues that Appellant sought to raise in the PCRA
proceeding. Appellant did not complete a certificate of merit, but did
attach to his complaint a copy of a letter from the Disciplinary Board of the
Supreme Court of Pennsylvania.3 The letter indicated that Appellees
admitted that they committed an error when they did not have the notes of
testimony from the PCRA hearing transcribed.
In the present lawsuit, Appellant also sought to proceed in forma
pauperis, and the action was dismissed based upon frivolity. This appeal
followed, and Appellant raises this issue, “Did the Trial Court err in
dismissing [Appellant’s] legal malpractice claim when he properly plead
and established the three (3) elements required?” Appellant’s brief at 4.
____________________________________________
3
In their brief, Appellees have asked us to strike the letter from the
record, contending that it is confidential. They did not seek such relief in
the trial court so that averment is waived for purposes of appeal. Pa.R.A.P.
302(a). However, Appellees are free to ask the trial court for the same
relief.
-4-
J-S58018-16
Initially, we note that Appellees have asked us to quash this appeal
based upon the frivolity of the present lawsuit. “Quashal is usually
appropriate where the order below was unappealable; . . . the appeal was
untimely, . . . or the Court otherwise lacked jurisdiction[.]” Sahutsky v.
H.H. Knoebel Sons, 782 A.2d 996, 1001 n. 3 (Pa. 2001) (citations
omitted). While Pa.R.A.P. 1972(7) also permits a party to move to quash
“for any other reasons on the record,” Appellees’ motion to quash clearly
relates to the merits of the appeal. According, quashal is not the
appropriate action by this Court. See id.
We next observe that both the trial court and Appellees fault
Appellant for failing to file with his complaint a certificate of merit under
Pa.R.C.P. 1042.3.4 However, Appellant had sixty days to file a certificate of
____________________________________________
4
That rule states in pertinent part:
(a) In any action based upon an allegation that a licensed
professional deviated from an acceptable professional standard,
the attorney for the plaintiff, or the plaintiff if not represented,
shall file with the complaint or within sixty days after the
filing of the complaint, a certificate of merit signed by the
attorney or party that either
(1) an appropriate licensed professional has supplied
a written statement that there exists a reasonable
probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or
work that is the subject of the complaint, fell outside
acceptable professional standards and that such
conduct was a cause in bringing about the harm...
(Footnote Continued Next Page)
-5-
J-S58018-16
merit, and this action was dismissed eleven days after it was instituted.
Hence, we decline to affirm based upon application of Pa.R.C.P. 1042.3.
However, we agree that Appellant did not set forth sufficient facts in
his complaint to support the existence of a legal malpractice case, and that
dismissal based upon Pa.R.C.P. 240(j) was proper. “Our review of a
decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited to a
determination of whether the plaintiff's constitutional rights have been
violated and whether the trial court abused its discretion or committed an
error of law.” Ocasio v. Prison Health Servs., 979 A.2d 352, 354
(Pa.Super. 2009) (citation omitted). The rule in question states:
(j)(1) If, simultaneous with the commencement of an action or
proceeding or the taking of an appeal, a party has filed a petition
for leave to proceed in forma pauperis, the court prior to acting
upon the petition may dismiss the action, proceeding or appeal if
the allegation of poverty is untrue or if it is satisfied that the
action, proceeding or appeal is frivolous.
Pa.R.C.P. 240(j). An action is considered frivolous if “on its face, it does
not set forth a valid cause of action.” Ocasio, supra, at 354 (citation
omitted).
To present a viable cause of for legal malpractice, a plaintiff must
establish all of the following: “1) Employment of the attorney or other basis
for a duty; 2) the failure of the attorney to exercise ordinary skill and
_______________________
(Footnote Continued)
Pa.R.C.P. 1042.3 (emphasis added).
-6-
J-S58018-16
knowledge; and 3) that such negligence was the proximate cause of
damage to the plaintiff.” Sokolsky v. Eidelman, 93 A.3d 858, 862
(Pa.Super. 2014) (citation omitted; emphasis added). A plaintiff’s
damages must be actual rather than nominal and cannot be speculative.
Id.
Herein, the averments in Appellant’s complaint fell short of setting
forth the elements of a legal malpractice case. The allegations were
rambling, lacked cohesion, and fatally vague. Critically, Appellant neither
delineated any issue that should have been presented during the PCRA
proceeding nor developed how the issue would have warranted PCRA relief.
While Appellees admittedly did not obtain a copy of the PCRA transcript,
given the outcome of the PCRA proceedings at the PCRA court level, we
draw no inference that Appellant would have prevailed in his appeal from
the denial of PCRA relief had the document been in the record. Indeed,
Appellant fails to acknowledge that the PCRA court ruled against him after
the hearing, that trial counsel testified that Appellant himself rejected the
plea offer, and that our standard of review in the PCRA context is
deferential to the PCRA court’s rulings.
On appeal, Appellant once again simply relies upon the fact that
Appellees did not procure a transcript of the PCRA hearing, suggesting that
reversal is warranted solely on that ground. Appellees’ fault in that
respect, standing alone, does not establish that Appellant would have
-7-
J-S58018-16
prevailed during his PCRA proceeding. Appellant does not establish the
existence of actual harm from the omission in question. We therefore
affirm the trial court’s ruling that Appellant’s lawsuit was frivolous.
Appellees’ motion to quash the appeal is denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2016
-8-
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452 Pa. 417 (1973)
Friestad, Appellant,
v.
Travelers Indemnity Company.
Supreme Court of Pennsylvania.
Argued March 12, 1973.
July 2, 1973.
*418 Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Henry E. Sewinsky, with him Anthony Perfilio, and Rodgers, Marks, Irwin & Perfilio, for appellant.
P. Raymond Bartholomew, with him Martin E. Cusick, and Cusick, Madden, Joyce & McKay, for appellee.
Robert E. Jamison, with him Jamison & Jones, for intervenor.
OPINION BY MR. CHIEF JUSTICE JONES, July 2, 1973:
Chauncey and Anne Thompson purchased a heating system from Sears, Roebuck and Company ("Sears") in August 1957. Sears contracted with the Superior Heating Company ("Superior") to install the system. After installation, a fire destroyed the Thompson home.
*419 The Thompsons sued Sears and recovered $20,000. Sears paid the judgment and proceeded against Superior for the amount of the judgment plus costs and legal fees associated with its defense of the Thompson claim.[1] Superior is insured by the Travelers Indemnity Company ("Travelers"). Pursuant to its policy, Superior demanded that Travelers defend the Sears indemnity action, but Travelers denied coverage. On March 18, 1971, Superior filed a petition for a declaratory judgment under the provisions of the Uniform Declaratory Judgments Act, Act of June 18, 1923, P.L. 840, §§ 1-16, as amended, 12 P.S. §§ 831-846, and its supplementary provisions, Act of May 22, 1935, P.L. 228, §§ 1-7, as amended, 12 P.S. §§ 847-853. Superior, by its petition, asked that the lower court construe the Superior-Travelers policy of insurance to determine the extent of Travelers' obligation. The lower court dismissed the petition for declaratory judgment on August 13, 1971, on grounds that another available remedy existed, and the Superior Court affirmed the order of dismissal.[2] 222 Pa. Superior Ct. 559, 295 A. 2d 135 (1972). We granted allocatur and agreed to consolidate this appeal with Sears' petition to intervene.[3]
In view of our decision here remanding this matter to the lower court, we need not pass upon the Sears petition to intervene at this time. Instead, Sears' intervention in these proceedings will be considered when and if the petition to intervene is presented in the court below.
Our primary concern in this appeal is the application of Section 6 of the Uniform Declaratory Judgments *420 Act: "Relief by declaratory judgment or decree may be granted in all civil cases where (1) an actual controversy exists between contending parties, or (2) where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or (3) where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that either (i) there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein or (ii) that there is an uncertainty with respect to the effect of such asserted relation, status, right, or privilege upon the determination of any tax imposed or to be imposed by any taxing authority . . . and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case where the other essentials to such relief are present. . . ." Act of June 18, 1923, P.L. 840, § 6, as amended, 12 P.S. § 836. (Emphasis added). The controversy before us presents the question whether the legislature, by enacting Section 6 of the Act, intended the declaratory judgment to be an optional or extraordinary remedy. As applied to this case, the narrow issue is whether Superior can avail itself of a prior adjudication *421 of Travelers' obligation under its policy of insurance, or whether Superior must defend the indemnity action, and, thereafter, proceed against Travelers in assumpsit to recover damages and costs paid out in defending the action by Sears.[4]
The legislature adopted the Uniform Declaratory Judgments Act as a "remedial" statute intended to be "liberally construed and administered" for the purpose of settling "uncertainty and insecurity with respect to rights, status, and other legal relations. . . ."[5] Despite this mandate, and notwithstanding the clear and explicit legislative intent to make declaratory judgments available though "the threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy," many of our decisions have held that a declaratory *422 judgment proceeding would not lie if there existed another available remedy.[6]
To the extent that these decisions rest upon the view that the Uniform Declaratory Judgments Act provides extraordinary relief which may only be invoked in the absence of another available remedy, whether statutory or non-statutory they are disavowed.
The setting for our decision in this case is a history of judicial vacillation spanning five decades. Chief Justice VON MOSCHZISKER, writing for the majority of the Court in Kariher's Petition (No. 1) in 1925, first spoke to the issue of whether the availability of an alternative remedy would preclude relief under the Uniform Declaratory Judgments Act: "[a] proceeding to obtain [a declaratory judgment] will not be entertained where . . . another statutory remedy has been specially provided for the character of case in hand. . . ." 284 Pa. 455, 471, 131 A. 265, 271 (1925) (Emphasis added). The opinion of Chief Justice VON MOSCHZISKER was consonant with the express language of the Act. That is, the *423 existence of another remedy, no matter how properly suited to a disposition of the issue upon which a declaratory judgment is sought, will not preclude a declaratory judgment proceeding unless the alternative remedy was specially provided by legislative act to dispose of a statutorily specified class of cases.
Unfortunately, the cases which followed in time the decision in Kariher's Petition (No. 1) engrafted upon the Act a judicially created rule that the declaratory judgment is an extraordinary remedy available only in the absence of an alternative remedy in law or equity. See Bell Telephone Co. of Pennsylvania v. Lewis, 313 Pa. 374, 169 A. 571 (1934); Nesbitt v. Manufacturers' Casualty Insurance Co., 310 Pa. 374, 165 A. 403 (1933); Sterrett's Estate, 300 Pa. 116, 150 A. 159 (1930).[7]
In 1943, the legislature responded to this Court's indifference to the plain meaning of Section 6: it enacted an amendment intended to remove any possible ambiguity in the Act's language in order to ensure that a declaratory judgment would lie even where an alternative remedy existed. Act of May 26, 1943, P.L. 645, § 1. Since the 1943 amendment, this Court has shifted its position on at least four occasions on the question of whether entitlement to declaratory relief is optional or extraordinary.
In Philadelphia Manufacturers Mutual Fire Insurance Co. v. Rose, 364 Pa. 15, 70 A. 2d 316 (1950), the *424 legislative mandate was heeded. The Court held that the legislature, by its 1943 amendment, "provided that neither the fact that the defendant might have pursued his `general common law remedy' by suing in assumpsit, nor the fact that plaintiff might have used an `equitable remedy' to reform the policy" could debar a party from the privilege of a declaratory judgment. 364 Pa. at 22, 70 A. 2d at 319.
The Court recanted the "optional remedy" view in Wirkman v. Wirkman, 392 Pa. 63, 139 A. 2d 658 (1958). In Wirkman, the parties to a contract determined that any dispute between them emanating from the contract would be settled by arbitration. This Court determined that the grant of a declaratory judgment would thus circumvent the contractual agreement. In affirming the lower court's dismissal of the petition for declaratory judgment, the Court asserted that "[a] declaratory judgment should not be granted where a more appropriate remedy is available." 392 Pa. at 66, 139 A. 2d at 660.[8]
Three years after Wirkman, this Court decided Johnson Estate, 403 Pa. 476, 171 A. 2d 518 (1961). In a petition for declaratory judgment for the construction of a will, the Court held that the existence of an alternative remedy would not, in itself, prevent an adjudication by declaratory judgment. The decision in Johnson Estate was supplanted, less than one year later, by McWilliams v. McCabe, 406 Pa. 644, 179 A. 2d 222 (1962). The McWilliams decision reinstated declaratory judgment as an extraordinary remedy, not an optional substitute for other available relief. The cases *425 which followed have retained the McWilliams rule.[9] We reject it as an over-reaching of judicial power.
When the legislature enacted Section 6 of the Act, and its several amendments, we believe it intended the common sense meaning that its language conveys. If a remedy is specially provided by statute, it must be pursued. If, on the other hand, there is another available remedy not statutorily created, whether such remedy is legal or equitable, it is only one factor to be weighed by the court in its discretionary determination of whether a declaratory judgment would lie.
There is no good reason why a rule which relegates the declaratory judgment to the status of an extraordinary remedy should abide, especially in view of the legislative imprimatur on so useful a judicial tool.[10]
Orders of the Superior Court and the court below are vacated and the matter is remanded for proceedings consistent with this opinion.
Mr. Justice EAGEN and Mr. Justice O'BRIEN dissent.
NOTES
[1] Sears seeks indemnification in the amount of $30,806.92.
[2] Judge SPAULDING spoke for the majority of the Court; former Judge PACKEL wrote a concurring opinion.
[3] Sears presents its petition to intervene to this Court without a previous attempt at intervention below.
[4] The sole basis for the decision of the lower court was that "[a] declaratory judgment proceeding should not be entertained if there exists another established and appropriate remedy." C.H. Pitt Corp. v. Insurance Co. of North America, 435 Pa. 381, 385, 257 A. 2d 857, 860 (1969). Appellee also alleges that declaratory relief should not lie where, as here, there is a dispute as to the facts. Without passing upon this question, we note that the only "factual" dispute in the present case is the existence or non-existence of coverage, a dispute which is really a legal question to be properly considered by the court below in the rendering of its declaratory judgment.
We must assume, as do the parties and the court below, that the only claimed impediment to jurisdiction under the Uniform Declaratory Judgments Act is the availability of another remedy. Though the Superior Court sua sponte raised the question of the necessity to join Sears as a necessary party, and Sears has petitioned this Court to intervene, the question of whether the failure to join Sears as a necessary party precludes the right to a declaratory judgment was not raised as an objection to the exercise of jurisdiction under the act in the court below, and we will not consider it here.
[5] Act of June 18, 1923, P.L. 840, § 12, 12 P.S. § 842.
[6] C.H. Pitt Corp. v. Insurance Co. of North America, 435 Pa. 381, 257 A. 2d 857 (1969); Loftus v. City of Carbondale, 435 Pa. 288, 256 A. 2d 799 (1969); Bierkamp v. Rubinstein, 432 Pa. 89, 246 A. 2d 654 (1968); Port Authority of Allegheny Co. v. Amalgamated Transit Union, 430 Pa. 514, 243 A. 2d 433 (1968); Mains v. Fulton, 423 Pa. 520, 224 A. 2d 195 (1966); Sheldrake Estate, 416 Pa. 551, 207 A. 2d 802 (1965); Greenberg v. Blumberg, 416 Pa. 226, 206 A. 2d 16 (1965); Mohney Estate, 416 Pa. 107, 204 A. 2d 916 (1964); State Farm Mutual Insurance Co. v. Semple, 407 Pa. 572, 180 A. 2d 925 (1962); McWilliams v. McCabe, 406 Pa. 644, 179 A. 2d 222 (1962); Wirkman v. Wirkman, 392 Pa. 63, 139 A. 2d 658 (1958); Stofflet and Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274 (1943); Bell Telephone Co. of Pennsylvania v. Lewis, 313 Pa. 374, 169 A. 571 (1934); Nesbitt v. Manufacturers' Casualty Insurance Co., 310 Pa. 374, 165 A. 403 (1933); Sterrett's Estate, 300 Pa. 116, 150 A. 159 (1930); Taylor v. Haverford Township, 299 Pa. 402, 149 A. 639 (1930); Ladner v. Siegel, 294 Pa. 368, 144 A. 274 (1928); Leafgreen v. La Bar, 293 Pa. 263, 142 A. 224 (1928).
[7] When Chief Justice VON MOSCHZISKER failed to persuade his colleagues that they should adhere to the rule in Kariher's Petition (No. 1), he appealed to the legislature to amend Section 6 of the Act to clarify its language permitting an optional, rather than extraordinary, application of declaratory judgment proceedings. Section 6 was amended, Act of April 25, 1935, P.L. 72, § 1, but the extraordinary remedy view of the Act was preserved. Stofflet and Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274 (1943). See P. Amram, A Look at Declaratory Judgments in Pennsylvania Today, 41 Pa. Bar Ass'n Quarterly 384 (1970).
[8] This writer joined in the majority opinion in Wirkman on grounds that permitting a declaratory judgment would effectively evade the parties' contractual agreement to arbitrate their differences.
[9] See C.H. Pitt Corp. v. Insurance Co. of North America, 435 Pa. 381, 257 A. 2d 857 (1969); Loftus v. City of Carbondale, 435 Pa. 288, 256 A. 2d 799 (1969); Bierkamp v. Rubinstein, 432 Pa. 89, 246 A. 2d 654 (1968); Port Authority of Allegheny Co. v. Amalgamated Transit Union, 430 Pa. 514, 243 A.2d 433 (1968); Mains v. Fulton, 423 Pa. 520, 224 A. 2d 195 (1966); Greenberg v. Blumberg, 416 Pa. 226, 206 A. 2d 16 (1965); Mohney Estate, 416 Pa. 107, 204 A. 2d 916 (1964); State Farm Mutual Automobile Insurance Co. v. Semple, 407 Pa. 572, 180 A. 2d 925 (1962).
[10] See the dissenting opinion of Mr. Justice ROBERTS in Sheldrake Estate, 416 Pa. 551, 557, 207 A. 2d 802, 804 (1965).
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15-2773
Salto-Seico v. Sessions
BIA
Straus, IJ
A200 897 646
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 26th day of June, two thousand seventeen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROBERT D. SACK,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 OLGER ABEL SALTO-SEICO,
14 Petitioner,
15
16 v. 15-2773
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gregory Osakwe, Hartford, CT.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Shelley
27 R. Goad, Assistant Director; Nancy
28 K. Canter, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DISMISSED IN PART and DENIED IN PART.
5 Petitioner Olger Abel Salto-Seico, a native and citizen of
6 Ecuador, seeks review of a March 4, 2015, decision of the BIA
7 affirming a February 5, 2013, decision of the Immigration Judge
8 denying his application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”), and an
10 August 25, 2015, decision of the BIA denying his motion to
11 reopen. In re Olger Abel Salto-Seico, No. A200 897 646 (B.I.A.
12 Mar. 4, 2015), aff’g No. A200 897 646 (Immig. Ct. Hartford Feb.
13 5, 2013); In re Olger Abel Salto-Seico, No. A200 897 646 (B.I.A.
14 Aug. 25, 2015). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We dismiss the petition for review as to the BIA’s March
17 2015 decision ordering Salto-Seico removed to Ecuador and
18 denying his application for asylum, withholding of removal, and
19 CAT relief. We lack jurisdiction to review that decision
20 because the September 2015 petition for review is untimely to
21 challenge a March 2015 decision. See 8 U.S.C. § 1252(b)(1) (“A
22 petition for review must be filed not later than 30 days after
23 the date of the final order of removal.”); Luna v. Holder, 637
2
1 F.3d 85, 92 (2d Cir. 2011). “[T]he filing of a motion to reopen
2 does not toll the time for filing a petition for review of the
3 BIA's final exclusion or deportation orders[.]” Kaur v. BIA,
4 413 F.3d 232, 233 (2d Cir. 2005).
5 Salto-Seico’s brief raises no arguments with respect to the
6 BIA’s denial of reopening. “Issues not sufficiently argued in
7 the briefs are considered waived and normally will not be
8 addressed on appeal.” Norton v. Sam’s Club, 145 F.3d 114, 117
9 (2d Cir. 1998). Accordingly, he has waived review of that
10 determination and we deny the petition as to the August 2015
11 decision. Id.; see also Yueqing Zhang v. Gonzales, 426 F.3d
12 540, 545 n.7 (2d Cir. 2005).
13 For the foregoing reasons, the petition for review is
14 DISMISSED IN PART and DENIED IN PART. As we have completed our
15 review, any stay of removal that the Court previously granted
16 in this petition is VACATED, and any pending motion for a stay
17 of removal in this petition is DISMISSED as moot. Any pending
18 request for oral argument in this petition is DENIED in
19 accordance with Federal Rule of Appellate Procedure 34(a)(2),
20 and Second Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
3
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234 F.3d 1370 (Fed. Cir. 2000)
VANGUARD PRODUCTS CORPORATION, Plaintiff-Appellee,v.PARKER HANNIFIN CORPORATION, Defendant-Appellant.
99-1427
United States Court of Appeals for the Federal Circuit
DECIDED: December 14, 2000
Appealed from: United States District Court for the District of Connecticut Judge Alfred V. CovelloRobert Neuner, Baker & Botts, L.L.P., of New York, New York, argued for plaintiff-appellee. With him on the brief was Neil P. Sirota.
Gregory A. Castanias, Jones, Day, Reavis & Pogue, of Washington, DC, argued for defendant-appellant. With him on the brief was D. Adam Candeub. Of counsel on the brief was John A. Molnar, Jr., Parker Hannifin Corporation, of Cleveland, Ohio; andAllen D. Brufsky, of Matlacha, Florida.
Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and NEWMAN, Circuit Judge.
Opinion for the court filed by Circuit Judge NEWMAN. Dissenting opinion filed by Chief Judge MAYER.
NEWMAN, Circuit Judge.
1
Vanguard Products Corporation, owner of United States Patent No. 4,968,854 (the '854 patent), charged Parker Hannifin Corporation with infringement. After construction of the claims by the district court, the jury held the patent valid and willfully infringed and determined damages. The court entered judgment on the verdicts, enjoined continuing infringement, and denied Vanguard's motions for enhanced damages and attorney fees.1 Parker Hannifin appeals, stating that the court's claim construction is incorrect and that on the correct construction infringement can not be found. Parker Hannifin does not appeal the jury verdict as based on the district court's claim construction.
CLAIM CONSTRUCTION
2
The '854 patent is directed to an electromagnetic interference shielding gasket. Claim 1, the broadest claim, describes the gasket as having two elastomeric layers: a thick inner layer and a thin metal-filled outer layer "integral therewith":
3
1. In a gasket shield for counteracting electromagnetic interference comprising a flexible gasket element, the improvement wherein said gasket element comprises a relatively thick elastomeric layer of good elasticity and high tear resistance, and a relatively thin elastomeric outer layer integral therewith, said outer layer being metal filled and providing a high degree of attenuation of electrical energy.
4
The dispositive issue of claim construction is whether the term "integral therewith" requires that the product be made by co-extrusion,2 the method of manufacture described in the specification. The accused shielding gasket is conceded by Parker Hannifin to contain inner and outer elastomeric layers of the same properties as described and claimed in the '854 patent, but the method of manufacture differs in that for the Parker Hannifin gasket the outer layer is applied to the inner layer by dip-coating.
5
The district court ruled, on review of the '854 specification, the prosecution history, and a dictionary definition of "integral," that the claimed gasket shield is not limited to manufacture by co-extrusion. The court instructed the jury as follows:
6
"Integral" is used here in its ordinary sense to mean formed as a unit with another part, and therefore, "integral therewith" means that the outer layer of the gasket is formed as a unit and in direct contact with the inner layer of the gasket.
7
Parker Hannifin argues that "integral therewith" requires the use of co-extrusion to manufacture the gasket, the only process shown in the specification, and that a claim not so limited would read on the prior art and would violate the written description requirement of 35 U.S.C. §112 &1. Parker Hannifin states that the district court improperly resorted to a dictionary definition of "integral" to broaden the meaning of this term from the context in which it was used. Parker Hannifin also states that the dictionary was improper extrinsic evidence.
8
A dictionary is not prohibited extrinsic evidence, and is an available resource of claim construction. Although a dictionary definition may not enlarge the scope of a term when the specification and the prosecution history show that the inventor, or recognized usage in the field of the invention, have given the term a limited or specialized meaning, a dictionary is often useful to aid the court in determining the correct meaning to be ascribed to a term as it was used. See Hockerson-Halberstadt, Inc. v. Avia Group Int'l, Inc., 222 F.3d 951, 955, 55 USPQ2d 1487, 1490 (Fed. Cir. 2000); Multiform Dessicants Inc. v. Medzam, Ltd., 133 F.3d 1473, 1478, 45 USPQ2d 1429, 1432 (Fed. Cir. 1998).
9
We discern no error in the district court's determination that "integral" was used in the '854 patent in its ordinary dictionary meaning. See Optical Disc Corp. v. Del Mar Avionics, 208 F.3d 1324,1335, 54 USPQ2d 1289,1295 (Fed. Cir. 2000) (a dictionary provides objective definition when words are used in their ordinary meaning). The '854 specification shows that the term was used to describe the product, and not as a designation of a specific manufacturing process.
10
Parker Hannifin argues that the prosecution history shows that the Vanguard inventors viewed co-extrusion as "fundamental" to manufacture of the claimed gasket, thereby imposing this process of manufacture upon the product claims. Parker Hannifin states that the inventors argued the benefits of co-extruded layers in order to overcome the prior art of Zulaf, Severinsen, and Bogan, and thus must be deemed to have disclaimed other methods of producing the gasket. However, review of the prosecution history shows that during examination the examiner as well as the applicant treated the product claims as directed to the product itself, and examined the application accordingly. For example, in responding to the Zulaf reference the inventors pointed out that the Zulaf product was porous while theirs was solid, and pointed to other differences between the claimed and reference products. In addition, the inventors distinguished the Severinsen and other references in the Information Disclosure Statement based on the structure and composition of the products. Severinsen, for example, describes a metal-filled elastomer embedded with knitted wire mesh, and was criticized by the inventors for its poorer performance and higher cost. The examiner did not cite any reference directed to co-extrusion or the method of manufacture.
11
The prosecution history shows that the inventors extolled the economy of manufacture and superior product made by co-extrusion, and told the examiner that "our system requires only a one-step process as a result of the co-extrusion and tri-extrusion process." However, the prosecution history does not support Parker Hannifin's argument that the Vanguard inventors "expressly disclaimed" claim scope beyond products made by co-extrusion. Patent claim 10 specifically describes the gasket layers as "co-extruded." The district court correctly declined to read this limitation into claim 1. See Tandon Corp. v. United States Int'l Trade Comm'n, 831 F.2d 1017, 1023, 4 USPQ2d 1283, 1288 (Fed. Cir. 1987) (claims containing different limitations are presumed to be of different scope).
12
The method of manufacture, even when cited as advantageous, does not of itself convert product claims into claims limited to a particular process. We agree with the district court that the word "integral" describes the relationship between the elastomeric layers, not the means of joining them. This word did not limit the claim to the manufacturing process set forth in the specification. A novel product that meets the criteria of patentability is not limited to the process by which it was made. See 3 Donald S. Chisum, Chisum on Patents §8.05, at 8-79 (2000) and cases cited therein.
13
Parker Hannifin states that the district court inappropriately relied on Serrano v. Telular Corp., 111 F.3d 1578, 42 USPQ2d 1538 (Fed. Cir. 1997), and failed to correctly apply Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 34 USPQ2d 1673 (Fed. Cir. 1995), in its claim construction. These criticisms are not well founded. TheSerrano litigation concerned both a product (system) and a process, and also involved "means-for" terms under 35 U.S.C. §112 &6. The district court herein correctly recognized these differences and correctly applied the reasoning of Serrano to distinguish product and method limitations. In Southwall the claims required a "sputter-deposited dielectric," thereby including the sputter-deposit method as an explicit limitation in the invention as it was claimed. This is analogous to claim 10 of the '854 patent. However, the co-extrusion limitation is not included in claim 1.
14
We discern no error in the district court's reading of the patent and its prosecution history, and application of law and precedent. We conclude that the district court correctly construed claim 1 in the instruction to the jury. On this claim construction the jury verdict is not appealed. The judgment entered thereon is affirmed.
Procedural Issues
15
Vanguard raises several criticisms of Parker Hannifin's trial procedures. None has been shown to warrant appellate intervention, on the record presented to us.
16
No costs.
AFFIRMED
NOTES:
1
Vanguard Products Corp. v. Parker Hannifin Corp., No. 3:95CV1716 (AVC) (D. Conn. March 3, 1999).
2
Co-extrusion is a known method of forming a composition of two materials by forcing them through a set of appropriately positioned forming dies.
17
MAYER, Chief Judge, dissenting.
18
I would reverse. The district court relied on the plain meaning of the term "integral therewith" and properly refused to read the limitations of the preferred embodiment, i.e., co-extruded inner and outer layers, into the claims. However, "[t]he prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution." Southwall Techs. v. Cardinal IG Co., 54 F.3d 1570, 1576, 34 USPQ2d 1673, 1676 (Fed. Cir. 1995) (citations omitted). Vanguard submitted its supplemental amendment before the notice of allowance issued, and argued that the amended claims were patentable over Zulauf because, interalia, "[t]he Zulauf system is at least a two-step manufacturing process . . . . Our system requires only a one-step process as a result of the co- and tri-extrusion process, and will therefore be more cost effective with regard to labor input." Through this response, Vanguard effectively disclaimed all but one-step processes, thereby precluding a claim construction of "integral therewith" that embraces any configuration which is "formed as a unit." Vanguard argues that the amendment was not required to secure allowance of the original claims because the notice of allowance did not refer to the supplemental amendment. This is irrelevant because Vanguard chose to amend its claims rather than wait for a response to its request for reconsideration, and the amendment was filed prior to the issuance of the notice of allowance. The arguments distinguishing the amended claims over the prior art are part of the prosecution history that the public has a right to rely on in determining the scope of the claims. See Ekchian v. Home Depot, Inc., 104 F.3d 1299, 1303, 41 USPQ2d 1364, 1368 (Fed. Cir. 1997).
19
When the term "integral therewith" is properly construed to mean an inner and outer layer "formed as a unit through a single step process," the CHO-SEAL 3000 gaskets, which were produced by a multi-step dipping process to add the outer layer to the premade silicone core, lack the "integral therewith" limitation and thus do not literally infringe Claims 1, 3-6, and 9 of the '854 patent. We have held that "by distinguishing the claimed invention over the prior art, an applicant is indicating what the claims do not cover, he is by implication surrendering such protection." Ekchian, 104 F.3d at 1304, 41 USPQ2d at 1368 (citations omitted). The same statements in the supplemental amendment that limited the claim construction of "integral therewith" to mean "formed as a unit through a single step process" act as an estoppel barring the application of the doctrine of equivalents to the material that was surrendered during prosecution, namely inner and outer layers of gaskets formed as a unit through a multi-step process. Infringement by the doctrine of equivalents should not have been submitted to the jury because prosecution history estoppel bars expanding the claims to include the gaskets with an outer layer formed by dipping as in the CHO-SEAL 3000.
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187 Ariz. 557 (1996)
931 P.2d 1067
Krag KADERA and Erin Kadera, husband and wife, Petitioners,
v.
SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, The Honorable Mark Aceto, a judge thereof, Respondent Judge, CONSOLIDATED COOPERATIVE OF SCOTTSDALE EAST, INC., Real Party in Interest.
No. 1 CA-SA 95-0265.
Court of Appeals of Arizona, Division 1, Department E.
February 29, 1996.
Reconsideration Denied September 27, 1996.
Review Denied February 26, 1997.[*]
*558 Theodore C. Jarvi, Tempe, and Cromwell & U'Ren by Stephen A. U'Ren, Tempe, for Petitioner.
Ayers & Brown, P.C. by Joseph M. Hillegas, Jr., Phoenix, for Real Party in Interest.
OPINION
GRANT, Judge.
Krag and Erin Kadera ("Petitioners") bring this special action asking this court to accept jurisdiction and determine whether a cooperative corporation may initiate summary proceedings against a cooperator-shareholder in an alleged breach of an occupancy agreement. For reasons that follow, we accept jurisdiction and grant relief.
*559 SUMMARY OF FACTS AND PROCEDURE
On January 22, 1993, Petitioners purchased one share of stock in Consolidated Cooperative of Scottsdale East, Inc. ("Respondent"/"Respondent Corporation") from a former shareholder. Respondent is a nonprofit corporation organized under Arizona law. Petitioners paid $21,000 for their share in Respondent Corporation. Respondent, however, claims it does not know how much Petitioners paid for their interest. This purchase gave Petitioners the right to live in Unit D-14 ("the Unit"), a three-bedroom residence.
At the time of purchase, Petitioners were required to sign a Beneficiary Designation Form which created a joint tenancy with the right of survivorship in the property. Furthermore, to sell or transfer their interest, Petitioners had to agree to follow the method prescribed in Respondent Corporation's published Policy for Transfer of Membership.
Upon taking possession of the Unit, Petitioners were bound by an Occupancy Agreement. Under the terms of the agreement, Petitioners were obligated to pay Respondent a $200.00 "monthly carrying charge." This amount represents Petitioners' one-twelfth proportionate share of Respondent Corporation's annual expenses. Although Respondent does not allege Petitioners have defaulted on any of their financial obligations, under the terms of the Occupancy Agreement, had Petitioners defaulted, they would have had their right to own and hold a membership in Respondent Corporation revoked. Moreover, by signing the agreement, Petitioners agreed that, if they were ever dispossessed by a court-entered judgment or warrant, they would waive their right of redemption.[1]
On July 20, 1995, Respondent gave Petitioners a written, seven-day Notice of Default, Intention to Terminate Agreement, and Demand for Possession of Premises. The notice, however, contains the wrong unit number. Petitioners' Unit identification is D-14; the Unit to which the notice repeatedly refers is B-15. The notice stated if after seven days the breach is not cured, Petitioners must immediately vacate the Unit or an eviction action would be brought against them.
On August 16, 1995, Respondent filed a forcible entry and detainer action in Superior Court under Arizona Revised Statutes Annotated ("A.R.S.") section 12-1171. In its complaint, Respondents allege Petitioners allowed a non-relative to reside in their unit and conducted a babysitting business from it. Both of these actions violated the non-financial terms of the Occupancy Agreement. Respondent does not claim Petitioners have ever failed to comply with their financial obligations to Respondent Corporation; nor does Respondent claim Petitioners have defaulted on their monthly carrying charges.
Petitioners filed a Motion to Dismiss the complaint arguing the trial court lacked subject matter jurisdiction to conduct a summary disposition proceeding against them pursuant to A.R.S. section 12-1171 et seq. On September 29, 1995, however, the trial court denied Petitioners' Motion to Dismiss, and entered an order scheduling a trial under the forcible entry and detainer statutes. On October 10, 1995, Petitioners filed this special action from that denial of dismissal. Petitioners and Respondent have stipulated to a stay of proceedings pending the outcome of this petition for special action.
DISCUSSION
We have jurisdiction to hear this special action pursuant to A.R.S. section 12-120.21(A)(4). We accept jurisdiction and grant relief on the grounds that the trial court is threatening to proceed without subject matter jurisdiction in excess of its authority. Ariz.R.P. Special Actions, Rule 3(b). Furthermore, Petitioners have no adequate remedy by appeal. Ariz.R.P. Special Actions 1.
The substantive issues presented in this special action are:
*560 1. Does the National Housing Act preempt the application of Arizona law where there is a breach by a cooperator-shareholder in a cooperative corporation?
2. Are summary dispossession proceedings appropriate in the residential housing cooperative context?
3. Does a cooperator-shareholder own a real property interest?
4. What are the remedies available to the cooperative corporation for breach?
I. FEDERAL PREEMPTION
Respondent cites Martin v. Villa Roma Inc., 131 Cal. App.3d 632, 182 Cal. Rptr. 382 (1982), arguing since Respondent Corporation is "subject to the terms of both a regulatory agreement with [Housing and Urban Development ("HUD")][2] and the regulations and statutes enforced by that [agency]," we are bound by HUD's characterization of the relationship between Respondent Corporation and Petitioners as landlord and tenant.[3]See 12 U.S.C.A. § 170 et seq. We disagree. HUD characterizes this relationship for the narrow purpose of administering a national federal mortgage insurance program. This characterization does not prevent us from arriving at our own characterization. Because we find preemption inapplicable in this context, we are free to decide this issue independent of the National Housing Act and HUD.
Federal preemption of state law may be explicit or implicit. Arizona Farm-workers Union v. Phoenix Vegetable Distributors, 155 Ariz. 413, 416, 747 P.2d 574, 577 (App. 1986). Preemption is mandated if Congress expressly reserves to itself the exclusive power to regulate a given area of law. Id. Preemption is also mandated if, in the absence of an express statutory provision, the structure and purpose of a federal statute impliedly preempts state law. Id. Congress' intention to preempt state law may be inferred from a statute in which "the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress" meant to occupy the regulatory field. California Federal Savings and Loan Association v. Guerra, 479 U.S. 272, 280-81, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987). The mere fact that Congress enacted a detailed regulatory scheme, however, does not by itself imply preemption of state remedies. English v. General Electric Co., 496 U.S. 72, 87, 110 S.Ct. 2270, 2279, 110 L.Ed.2d 65 (1990).
At issue here is section 1701j-3 of the National Housing Act which contains a clause expressly preempting due-on-sale prohibitions.[4] In the Act, Congress retains the exclusive power to preempt state laws prohibiting a lender from declaring secured sums due and payable if the interest securing the real property loan is sold or transferred without the lender's consent. Congress' retained ability to preempt state law in this area is therefore extremely limited. Thus, the Act's express preemption clause is not relevant to the issue now before us.
*561 No implied preemption prevents us from defining and regulating the relationship between a cooperator and cooperative corporation. The National Housing Act was passed with a specific goal in mind: to promote home ownership by providing assistance to borrowers in the form of federal mortgage insurance. Congress intended to create a statutory financing mechanism and thereby occupy and regulate the field of federal mortgage insurance. The National Housing Act, then, is limited to this narrow function and purpose. State law must necessarily fill in the regulatory gaps created by the Act. Furthermore, as established above, the mere fact that the National Housing Act is an extremely detailed regulatory scheme does not per se imply preemption.
The question of Congressional intent is central to any analysis of preemption. Guerra, 479 U.S. at 280, 107 S.Ct. at 689. The analysis must begin "with the assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). Moreover, there is a presumption "against finding preemption of state law in areas traditionally regulated by the States." California v. ARC America Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989). Furthermore, the "narrowness and precision" with which Congress does preempt state law "cuts against an inference of a Congressional intention to preempt laws with a broad brush, and without express reference." Keams v. Tempe Technical Inst., Inc., 39 F.3d 222, 226 (9th Cir.1994). Thus, as the Supreme Court stated:
"[w]hen Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to preempt state laws from the substantive provisions of the legislation."
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992) (internal citations and quotation marks omitted).
Congress' intention in promulgating the National Housing Act was to further the goal expressed in Title 42 U.S.C. section 1441a(a): to realize "as soon as feasible ... the goal of a decent home and a suitable living environment for every American family." Congress only preempted state law with respect to due-on-sale clauses, therefore we assume Congress never intended that state law would be otherwise displaced. Furthermore, the areas of law implicated here, including real property, landlord-tenant, and corporations, are all areas traditionally regulated by the states, rendering federal preemption even more unlikely.
Where Congress has not occupied the regulatory field, however, federal law may still preempt state law if the laws actually conflict with one another. Guerra, 479 U.S. at 280-81, 107 S.Ct. at 689. In other words, preemption is implied where "compliance with both state and federal law [would be] impossible." Keams, 39 F.3d at 225 (quoting ARC America Corp., 490 U.S. at 100, 109 S.Ct. at 1665). In addition, if the interests involved are uniquely federal, Boyle v. United Technologies Corp., 487 U.S. 500, 504, 108 S.Ct. 2510, 2514, 101 L.Ed.2d 442 (1988), the dominant federal interest "will be assumed to preclude enforcement of state laws on the same subject...." Arizona Farmworkers, 155 Ariz. at 416, 747 P.2d at 577.
An actual conflict exists when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). A court must "consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written." Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S.Ct. 1305, 1310, 51 L.Ed.2d 604 (1977). The Arizona Supreme Court acknowledged that "where state laws would obviously frustrate congressional purpose," federal law will control. El Paso Natural Gas Co. v. Mohave County, 133 Ariz. 59, 63, 649 P.2d 262, 266 (1982) (citing Maryland, 451 U.S. at 747, 101 S.Ct. at 2129; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, *562 230-31, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)).
Here, no actual conflict exists between Arizona and federal law. As we have already indicated, the fact that HUD requires Respondent to characterize the relationship in question as landlord-tenant for limited federal purposes has no effect on our characterization for the purpose of applying Arizona law. In addition, compliance with both state and federal law is not impossible. To the contrary, given that the language required by HUD is a formality necessary to administer a national housing scheme, the language amounts to little more than a procedural convenience designed to ensure the uniform application of a federal statute. Finally, it cannot be said that the substantive determination of real property interests is a federal interest so unique that it precludes the enforcement of Arizona laws governing these interests. Arizona law, therefore, presents no obstacle to the accomplishment and execution of the full purposes of the National Housing Act.
While it is true that "[s]tate law procedures governing property relationships do not apply to federally created property rights when the state procedures do not adequately protect federal interests," United States v. Dos Cabezas Corp., 995 F.2d 1486, 1493 (9th Cir.1993), such an argument cannot be made here. By holding that the relationship between cooperator and cooperative corporation is outside the scope of landlord-tenant law, we further the goals of the National Housing Act. Our holding that the cooperator owns a real property interest increases the methods by which Arizona residents can obtain home ownership. In this way, we promote rather than limit the national goal of home ownership for American families, and go well beyond the protections contained in the National Housing Act. We now move to a consideration of Arizona law.
II. THE INAPPLICABILITY OF ARLTA AND SUMMARY PROCEEDINGS
The legislative purpose behind the Arizona Residential Landlord and Tenant Act ("ARLTA") is expressed in section 33-1302: ARLTA was passed both to "simplify, clarify, modernize and revise the law governing the rental of dwelling units and the rights and obligations of landlord and tenant," and to "encourage landlord and tenant to maintain and improve the quality of housing."
ARLTA undisputedly is inapplicable to the facts of this case. The legislature unequivocally excluded from the reach of ARLTA a residential occupant who is also an "owner of a proprietary lease in a cooperative." ARLTA § 33-1308. Thus, ARLTA section 33-1377, which allows a landlord to institute a special detainer action against a tenant for breach, is unavailable to Respondent in the instant case.
Respondent Corporation does not argue it is entitled to exercise the ARLTA provisions; rather, it argues it is entitled to bring an action for forcible entry and detainer against Petitioners under A.R.S. section 12-1171 et seq.[5] The forcible entry and detainer proceeding contained in this statute applies to a "holdover by a person to whom lands, tenements, or real property were let." Respondent Corporation cites Andreola v. Arizona Bank, 26 Ariz. App. 556, 550 P.2d 110 (1976), in support of its argument that a forcible entry and detainer action is appropriate here because such actions are not limited to the formal lessor-lessee relationship. Nevertheless, State v. Carrillo, 26 Ariz. App. 113, 546 P.2d 838 (1976), holds that section 12-1171 et seq. applies only to landlord-tenant relationships. Because neither a landlord-tenant nor lessor-lessee relationship exists between these parties, Andreola is inapplicable. Furthermore, although the parties "agreed" to the landlord-tenant characterization, this agreement is not binding. Arizona law has established that parties may not confer subject matter jurisdiction on a court that it does not otherwise have. See Lamb v. Superior *563 Court, 127 Ariz. 400, 621 P.2d 906 (1980); Kelly v. Kelly, 24 Ariz. App. 582, 540 P.2d 201 (1975).
While the legislature authorized the use of summary proceedings in the residential landlord-tenant context, it excluded a holder of a proprietary lease in a cooperative from the reach of these proceedings. Statutes must be interpreted according to the fair meaning of their provisions, and any interpretation must take into account and further the policies underlying them. State v. Lammie, 164 Ariz. 377, 793 P.2d 134 (App. 1990). Under ARLTA, the cooperator is not a "tenant," nor is the cooperative corporation a "landlord" as these terms are defined by the statute. Moreover, the cooperator and cooperative corporation are not in a lessor-lessee relationship.
Unless it is clear from the language of the statute that another meaning was intended, the words in the statute are to be accorded their usual and commonly understood meaning. Prescott Newspapers, Inc. v. Yavapai Community Hosp. Ass'n, 163 Ariz. 33, 785 P.2d 1221 (App. 1989). In general, we consider the meaning naturally attaching to statutory language; the meaning we adopt is the one that best harmonizes with the overall context of the statute. Maricopa County v. Arizona Tax Court, 162 Ariz. 64, 781 P.2d 41 (App. 1989).
The legislature recognized that although the cooperative is a hybrid property arrangement wherein the line between ownership and leasehold blurs, the cooperator has a real property ownership interest. The term "proprietary lease," used frequently to identify the relationship between the cooperator and cooperative corporation, is oxymoronic. The cooperative corporation may indeed hold title to the real property, nevertheless, the cooperator also owns a real property interest. Precisely because the legislature recognized that hybrid property arrangements carry with them ownership interests, section 33-1308(6) of ARLTA excludes from its reach not only cooperatives, but also condominiums.
Petitioners argue since ARLTA's special detainer action, which incorporates section 12-1177, excludes cooperatives neither proceeding is appropriate. We agree. To hold otherwise would give cooperators far fewer protections than tenants are guaranteed under ARLTA. Surely the legislature did not intend this result. While an ordinary tenant may forfeit a deposit upon breach, the cooperator has considerably more at stake because the total investment is so much greater.[6] Thus, we find ARLTA and summary proceedings inappropriate in the context of residential cooperative housing.
III. THE NATURE OF PETITIONERS' PROPERTY INTEREST
Respondent Corporation argues that since it has title to the real property, Petitioners cannot own a real property interest. We disagree. Respondent Corporation was established for the sole purpose of selling real property interests on a non-profit basis in the cooperative housing complex it owns, and Petitioners purchased such an interest. It was not necessary that title pass in order for Petitioners to have a real property interest. Moreover, the fact that this interest in land was not conveyed by a real estate sales contract is not fatal to the sale. A.R.S. section 32-2101 defines a real estate sales contract as:
... an agreement in which one party agrees to convey title to real estate to another party upon the satisfaction of specified conditions set forth in the contract.
(Emphasis added).
Indeed, the very nature of this transaction would prevent the use of such an instrument since neither of the parties intended that title to the real property would be transferred.
Our supreme court has held in previous decisions that, in general, "[p]roperty does not necessarily refer to a physical object itself but to certain rights over the physical object"; that ownership may be defined as "the right to [possess], use, and [dispose] of the thing in such a manner as is not inconsistent with law." In re Forsstrom, 44 Ariz. *564 472, 480, 38 P.2d 878, 882 (1934). In addition, "[t]he word `ownership' covers different estates in real property and ... has no technical meaning." Finally, in Arizona statutes, we must interpret the word "ownership" to have "the widest variety of construction, usually guarded in some measure by the object sought to be accomplished." Pinkerton v. Pritchard, 71 Ariz. 117, 123, 223 P.2d 933, 937 (1950).
This court has clearly stated that with respect to real estate sales, we will not exalt form over substance. E-Z Livin' Mobile Sales, Inc. v. Van Zanen, 26 Ariz. App. 363, 548 P.2d 1175 (1976). In E-Z Livin', we adopted the following reasoning:
The answer is not to be found in the name which the parties gave to the instruments, and not alone in any particular provision they contain, disconnected from all others; but in the ruling intention of the parties gathered from the language they used and the circumstances surrounding its use. We must look to the purpose of the instruments, their substance and not their form. Merely giving to them a particular name or form did not take away the nature and effect of the transaction.
E-Z Livin', 26 Ariz. App. at 364, 548 P.2d at 1176. (Citations Omitted and Emphasis added).
E-Z Livin' involved the sale of a house trailer and lot. When the Van Zanens were unable to secure financing, they entered into an agreement, characterized as a lease, with the seller. We held based on the facts of the case and notwithstanding the "lease option" characterization, that the agreement was a contract for the sale of real estate. Furthermore, we found the "lease" was "a clear attempt to subvert the public policy of the state against forfeitures," and that the relationship at issue was not one of landlord and tenant, but vendor and vendee. We therefore held that forcible entry and detainer proceedings were inappropriate under those circumstances.
As in E-Z Livin', Respondent claims that Petitioners are tenants by virtue of a "lease" agreement. Nevertheless, the landlord-tenant language appears only in Article XIII, the default section of the Occupancy Agreement. Outside of this Article, and in other documents, Petitioners are consistently referred to as "members." Thus, Article XII can certainly be said to be a "particular provision ... disconnected from all others." Furthermore, upon examining the language and circumstances surrounding this transaction, it becomes clear that the parties intended that Petitioners assume responsibilities far beyond those usually attributed to tenants. Moreover, the amount of money Petitioners invested in their membership indicates their intention that a real estate interest would be conveyed. Because we will not exalt form over substance in real property transactions, we reject Respondent's claim, and hold that Petitioners own a real property interest in the housing cooperative, notwithstanding the existence of an "authentic instrument" vesting title and deed in Respondent Corporation.
With the exception of a title transfer, there are all of the indications of a residential real estate transaction here. Petitioners chose the location and neighborhood in which they wanted to live. No doubt their decision was partially based on Respondent Corporation's description of the benefits of cooperative ownership over renting in its "Introduction to Living at Consolidated Cooperative of Scottsdale East, Inc.":
Membership in Consolidated Co-Ops provides the member with many advantages of home ownership but without the mortgage liability and accompanying responsibilities. The most often cited advantage of Co-op living is economic. Co-ops are founded on the premise that cooperation leads to better services at lower cost and Co-op charges are usually lower than those for similar rental units. Cooperators pay actual housing costs, not a landlord's profit. Pride of ownership and sense of community also contribute to reduced housing costs.
Co-Op [sic] housing offers its members the opportunity to help determine the kind of community they will live in, the quaity of services it will provide and the way it will develop. Many members see this degree of control over their housing circumstances as an even greater advantage than the *565 continuing financial bargain in housing that Co-ops offer.
(Emphasis added).
Once Petitioners decided to purchase an interest in Respondent Corporation they made a sizeable, initial investment. As a consequence of their investment, Petitioners own the exclusive right to occupy a particular unit in the cooperative housing complex. Upon taking possession, Petitioners began to pay their share of the monthly carrying charges necessary to sustain the cooperative corporation in which they owned stock. Petitioners' ownership interest is devisable and assignable; Article XXII of Respondent's Occupancy Agreement states: "This Agreement shall be binding on the personal representatives and successors in interest of each of the parties...." In addition, as shareholders in the corporation, Petitioners gained the power to vote to amend the corporate bylaws.
As members of the cooperative, Petitioners form a part of the self-governing corporation. The Board of Directors is comprised of members from each of Respondent's seven housing complexes. The Board administers the affairs of the corporation, including: accepting or rejecting applications; employing managers to oversee the seven complexes; promulgating rules and regulations regarding the use and occupancy of the premises; and enforcing the by-laws, rules, and regulations. In addition, the Board calculates the monthly carrying charges on an annual basis, dividing the charges by the number of months in the fiscal year. The Board also authorizes any refunds or credits to Members at the end of each fiscal year if the year's carrying charges are greater than the corporation's actual expenses.
All of these factors indicate both Petitioners' intention to purchase a real property interest as well as Respondent's intention to sell them a membership in the corporation.
IV. THE NATURE OF THE RELATIONSHIP
Respondent may not simultaneously claim to be in a landlord-tenant and corporation-shareholder relationship with Petitioners, while denying that Petitioners have any substantive rights or protections under either theory. A typical corporation and stockholder relationship does not exist here. Indeed, Article VII of Respondent's Articles of Incorporation states: "Unless otherwise required by law, no dividend shall be paid at any time upon any membership in this corporation."
Although Petitioners own stock in Respondent Corporation, it is not the stock they enjoy but the right to exclusively and permanently occupy a specific unit in the cooperative. Shareholders do not purchase the stock prior to selecting the specific unit in which they will reside. Even Respondent Corporation's "Shareholder Guidebook for Cooperative Living" states that a buyer does not initially decide whether he or she wants to purchase a share of stock, but "[t]he buyer decides which unit s/he wishes to purchase." (Emphasis added). Moreover, the buyer, not the corporation, selects the unit based on subjective criteria.
Respondent argues that because Petitioners are its shareholders, they have no right, title, or interest in corporate property, and therefore they may not interfere with Respondent Corporation's possessory interest in its assets. Respondent cites the case of Riffle v. Robert L. Parker Co., 19 Ariz. App. 100, 505 P.2d 268 (1973), in support of this theory. Riffle involved the merger of a partnership and corporation. An ex-partner, fired after the merger, was given stock in the corporation. The ex-partner trespassed onto the corporation's premises and damaged machinery. The court held that, as a stockholder, he had no right entitling him to enter, not even to remove his personal property. The situation here, however, is quite different. Petitioners are "stockholders" in name only, and inherent in the value of the "stock" is the right to occupy a particular unit in a housing complex owned by a cooperative corporation. Thus, on this basis, we distinguish Riffle.
Although the relationship between a cooperative corporation and a cooperator/shareholder is unique, the relationship at issue here is akin to that found in a deed of trust arrangement. A.R.S. section 33-801(5) states that a trust deed "convey[s] trust property to a trustee or trustees ... to secure the performance of a contract or contracts...." *566 Qualifying trust property includes "any legal, equitable, leasehold or other interest in real property which is capable of being transferred, whether or not it is subject to any prior mortgages, trust deeds, contracts for conveyance of real property or other liens or encumbrances." A.R.S. § 33-801(6). Furthermore, a trustee can be "an individual, association or corporation." Finally, the legislature defined a "stock cooperative" as a "corporation formed or used to hold title to improved real property in fee simple or for a term of years." A.R.S. § 32-2101 (Emphasis added).
Here, Respondent Corporation obtained a mortgage, and then secured mortgage insurance under HUD pursuant to the National Housing Act. The corporation holds the title to the property "in trust" to secure the mortgage. Petitioners pay monthly their proportionate share of Respondent Corporation's annual "operating expenses." These expenses include, among other things:
(a) The cost of all operating expenses of the project and services furnished.
(b) The cost of necessary management and administration.
(c) The amount of all taxes and assessments levied against the project of the Corporation of which it is required to pay, and ground rent, if any.
(d) The cost of fire and extended coverage insurance on the project and such other insurance as the Corporation may effect or as may be required by any mortgage on the project.
* * * * * *
(h) The amount of principal, interest, mortgage insurance premiums and other required payments on the hereinafter mentioned insurance mortgage.
(i) Any other expenses of the Corporation approved by the Board of Directors, including operating deficiencies, if any, for prior periods.
(Emphasis added).
Given that Petitioners paid a large initial down payment and entered into a contract which requires that they pay on a monthly basis the principal and interest on the mortgage, as well as other operating costs, their real property interest is clearly in the nature of an ownership or fee interest.
V. REMEDIES
Respondent Corporation lays out the remedies available to it in Article XI of the Occupancy Agreement. In particular, Respondent Corporation states that Petitioners waive their right of redemption in the following circumstances:
The Member hereby expressly waives any and all right of redemption in case s/he shall be dispossessed by judgment or warrant of any Court or judge; the words "enter," "reenter," and "reentry," as used in this Agreement are not restricted to their technical meaning, and in the event of a breach or threatened breach by the Member of any of the covenants or provisions hereof, the Corporation shall have the right of injunction and the right to invoke any remedy allowed at law or in equity, as if reentry, summary proceedings, and other remedies were not herein provided for."
This term of the Occupancy Agreement is void because it forces Petitioners to waive their right of redemption, a result that conflicts with our holding.
Respondent Corporation is barred from initiating any summary proceedings against Petitioners. Since Petitioners' interest is in the nature of real property, Arizona real estate law is controlling and supersedes any conflicting provisions contained in the Occupancy Agreement. Respondent Corporation has available to it all applicable statutory remedies relating to real property; Respondent must comply with the requirements of Arizona real property law in dealing with Petitioners' breach.
Our holding reflects our concern that this matter has broad significance even though at this time there are relatively few cooperatives in Arizona. The ever-increasing influx of new residents to our state, combined with the National Housing Act's policy of encouraging the formation of non-profit, cooperative corporations, may lead to an increase in the number of these alternative property holding arrangements. By deciding that residential housing cooperatives are governed by Arizona real estate law, we define and protect *567 both the rights of cooperators and cooperative corporations. Any resultant civil litigation will ensure that a body of law relating to residential cooperatives can be developed to further this goal.
VI. ATTORNEY'S FEES
Petitioners have requested attorney's fees. Pursuant to A.R.S. section 12-341.01(A), we award petitioners their attorneys' fees based on the fact that this matter arises out of contract. The amount of the award shall be determined upon Petitioners' compliance with Rule 21(c) Arizona Rules of Civil Appellate Procedure.
CONCLUSION
When the legislature held that cooperatives are to be excluded from ARLTA, it excluded cooperatives from all summary proceedings, including those brought for forcible entry and detainer under A.R.S. section 12-1177 et seq.
Thus, we hold that a cooperative corporation's remedy for breach by a cooperator/shareholder lies in Arizona's real estate law. This matter is remanded to the trial court with directions to dismiss Respondent's complaint for Forcible Entry and Detainer.
WEISBERG and PATTERSON, JJ., concur.
NOTES
[*] Feldman, J., of the Supreme Court, voted to grant the Petition for Review to hear oral argument.
[1] It is for this reason that Petitioners note in their brief that a summary disposition by this court of their Petition for Special Action could cost them the $21,000.00 purchase price, among other expenses.
[2] Respondent Corporation's "Introduction to Living at Consolidated Cooperative of Scottsdale East, Inc." states in part:
The property mortgage is insured under Section 213 of the National Housing Act. In connection with this insurance, Consolidated Co-Ops has entered into a "Regulatory Agreement" with HUD which, [sic] very briefly states that we will "pay our mortgage payments on time, set aside specific amounts of money for reserves, and that units will be owner occupied." The Regulatory Agreement is of course quite lengthy, however the above indicates the major provisions.
[3] Article XII of the Occupancy Agreement provides:
The member [expressly] agrees that there exists under this Occupancy Agreement a landlord-tenant relationship and that in the event of a breach or threatened breach by the Member of any covenant or provision of this Agreement, there shall be available to the Corporation such legal remedy [or] remedies as are available to a landlord for the breach or threatened breach under the law by a tenant of any provision of a lease or general agreement.
[4] Section 1701j-3(b)(1) states:
Notwithstanding any provision of the constitution or laws (including the judicial decisions) of any State to the contrary, a lender may ... enter into or enforce a contract containing a due-on-sale clause with respect to a real property loan [A real property loan includes "the stock allocated to a dwelling unit in a cooperative housing corporation."]
[5] Article XII of the Occupancy Agreement gives Respondent a right of re-entry to remove persons and personal property from a Unit by either summary dispossession proceedings or other action applicable to the eviction of tenants upon breach of the agreement. In addition, Respondent has "the right of injunction and the right to invoke any remedy allowed at law or in equity, as if reentry, summary proceedings, and other remedies were not herein provided for."
[6] Petitioners invested $21,000 up front, in addition to the monthly carrying charges.
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502 So.2d 979 (1987)
Terry Lamar BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. BD-86.
District Court of Appeal of Florida, First District.
February 11, 1987.
*980 Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
ON MOTION FOR REHEARING
ZEHMER, Judge.
The motion for rehearing filed by appellant is directed solely to our ruling on the severance issue.[1] We modify our opinion in part. In all other respects, the motion for rehearing is denied.[2]
First, Brown contends we misconstrued and misapplied Paul v. State, 385 So.2d 1371 (Fla. 1980). We recognize that Paul is factually distinguishable from this case, and only cited it as authority for the correct test to be applied in passing on a motion for severance of offenses. That test essentially requires that severance be granted unless the offenses are connected acts or transactions in an episodic sense. Further, Brown contends that we overlooked Jones v. State, 497 So.2d 1268 (Fla. 3d DCA 1986), in which the court found that charges of armed robbery and kidnapping of one victim and charges of first degree murder of another victim were based on similar but separate episodes and thus improperly joined. The facts were that on January 26, 1985, defendant Jones allegedly kidnapped Morrison, robbed him, and fled in Morrison's car. Three hours later Daugherty was killed, and two days later, while occupying Morrison's car, Jones was arrested on a charge of car theft. He was subsequently charged with the murder of Morrison. The court held it was error to deny Jones' motion for severance of the charges growing out of the criminal episode involving Morrison and that involving Daugherty, stating:
The supreme court held in State v. Williams, 453 So.2d 824, 825 (Fla. 1984) (citing Paul v. State, 365 So.2d 1063, 1065 (Fla. 1st DCA 1979) (Smith, J., dissenting)), "that consolidation [of offenses] is improper when `based on similar but separate episodes, separated in time, which are "connected" only by similar circumstances and the accused's alleged guilt in both and all instances.' 365 So.2d at 1065-66, adopted 385 So.2d at 1372." The supreme court's interpretation of Florida Rule of Crimanal Procedure 3.150(a) in both Williams and Paul mandates the severance of offenses and separate trials where, as here, the only connection between the two criminal episodes was the use of a stolen car and the accused's alleged participation. See McMullen v. State, 405 So.2d 479 (Fla. 3d DCA 1981); Macklin v. State, 395 So.2d 1219 (Fla. 3d DCA 1981); cf. Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982) (severance not required when two criminal acts take place in the same area within seconds of each other).
497 So.2d at 1272. We agree with the principles stated, but do not believe that our decision in this case is inconsistent with those principles.
Perhaps we should clarify the reasoning underlying our view of this case as involving a single episode such that severance was not mandated. While the temporal *981 connection of charged criminal acts is always relevant to the question of severance, it is not conclusive in and of itself. Two criminal acts by the defendant may occur within minutes of each other and yet constitute separate episodes; on the other hand, two or more criminal acts by defendant may occur on separate days and still be part of a single episode if sufficiently connected in terms of the victim and connected or related acts. Here, the two crimes charged against the defendant meet this test because the acts surrounding the burglary on Monday were directly connected by the evidence to the murder committed sometime during the following two days. Because the killing occurred shortly after the victim telephoned appellant and discussed his presence at the victim's house on the day of the burglary, it can be inferred that the burglary led directly to commission of the murder and was the motive. These facts are sufficient to show that, even though the acts occurred over a span of two days, the two offenses charged in this case involved connected acts or transactions in an episodic sense; therefore, there was no error permitting joinder of the offenses and denial of the motion for severance. See Warren v. State, 475 So.2d 1027 (Fla. 1st DCA 1985); Brown v. State, 468 So.2d 325 (Fla. 2d DCA), pet. for rev. denied, 476 So.2d 672 (Fla. 1985); Hamilton v. State, 458 So.2d 863 (Fla. 4th DCA 1984).
Brown also points out that in citing Abbott v. State, 334 So.2d 642 (Fla. 3d DCA 1976), for the proposition that "appellant has not demonstrated that he was prejudiced by the failure to sever the offenses," we have seemingly placed a burden on defendant to demonstrate prejudice flowing from a failure to sever offenses and that we apparently overlooked that Abbott deals with severance of defendants, not counts, and is thus not on point. Brown is correct in this assertion, and we modify our opinion to delete the quoted clause and citation to Abbott. We recognize it has been held, as Brown asserts, that when offenses are improperly joined, upon proper motion, severance is mandatory and prejudice is conclusively presumed. Macklin v. State, 395 So.2d 1219 (Fla. 3d DCA 1981). In this case, however, the offenses were sufficiently connected and thus properly joined.
REHEARING DENIED.
SHIVERS and BARFIELD, JJ., concur.
NOTES
[1] The motion was timely filed pursuant to our order granting appellant's motion to withdraw the mandate and republish the opinion because appellant did not timely receive a copy of our opinion filed October 31, 1986, 496 So.2d 961. See Gardner v. State, 375 So.2d 2 (Fla. 4th DCA 1979).
[2] We commend appellant's counsel for filing a motion for rehearing which fully comports with the requirements and purpose of rule 9.330, Florida Rules of Appellate Procedure. Concisely presenting important points without rearguing the case, the three-page motion serves as an excellent example of proper appellate procedure.
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Case: 19-12047 Date Filed: 05/29/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12047
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cr-00551-LMM-JFK-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS MONTEMAYOR,
a.k.a. Fox,
a.k.a. The Director,
a.k.a. Licenciado,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 29, 2020)
Before GRANT, LUCK and FAY, Circuit Judges.
PER CURIAM:
Case: 19-12047 Date Filed: 05/29/2020 Page: 2 of 7
Carlos Montemayor appeals his convictions for conspiracy to possess with
intent to distribute cocaine, conspiracy to import cocaine, possession with intent to
distribute cocaine, and conspiracy to launder money. He also appeals the order that
disqualified his previous attorney, Richard Rice, and the order that required him to
pay $192,000,000 in forfeiture. We affirm in part and dismiss in part.
I. BACKGROUND
In December 2009, Montemayor was indicted on one count of conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii),
846; one count of conspiracy to import cocaine, in violation of 21 U.S.C. §§
960(b)(1)(B)(ii), 963; three counts of possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a), (b)(1)(A)(ii); and one count of conspiracy to launder
money, in violation of 18 U.S.C. § 1956(h). The government also included a
forfeiture provision in the indictment.
Montemayor hired Richard Rice to represent him. The government filed a
motion to disqualify Rice, asserting that he was prohibited from representing
Montemayor based on his participation while he was an Assistant United States
Attorney (“AUSA”) in the investigation that ultimately led to the indictment in this
case. A magistrate judge disqualified Rice due to his prior role in the case as an
AUSA. The district court affirmed the magistrate judge’s order over Montemayor’s
objections. A magistrate judge subsequently appointed counsel for Montemayor.
2
Case: 19-12047 Date Filed: 05/29/2020 Page: 3 of 7
Montemayor informed the district court that he wanted to enter a non-
negotiated guilty plea to all six counts he was charged with committing. The district
court held a change of plea hearing and confirmed that Montemayor knew he was
under oath and that he had to answer all of the court’s questions truthfully. The court
also confirmed that Montemayor understood the charges he was pleading guilty to,
that he waived his constitutional rights by pleading guilty, that he knew the
consequences of pleading guilty, and that he would be bound by his plea with no right
to withdraw it.
On May 16, 2019, the district court held a sentencing hearing and imposed a
sentence of 240 months of imprisonment for the money laundering charge and 411
months of imprisonment for each of the remaining counts, all to be served
concurrently. In addition, the district court determined that forfeiture would be
ordered but it would delay determining the amount until it could determine the exact
amount of drugs attributable to Montemayor. In reference to an appeal, the district
court told Montemayor that he would be able to appeal if he believed that his guilty
plea was somehow “unlawful or involuntary or there is some other fundamental
defect” in his proceedings.
On May 28, 2019, Montemayor submitted a notice of appeal to appeal the
“Judgment of Sentence entered on May 16, 2019.” Montemayor filed a motion to
withdraw his guilty plea arguing that he was denied his Sixth Amendment right to
constitutionally effective counsel. The district court denied Montemayor’s motion.
3
Case: 19-12047 Date Filed: 05/29/2020 Page: 4 of 7
The district court held a second sentencing hearing on August 7, 2019,
continuing the May 16th hearing. The court entered an order and judgment of
forfeiture that same day, ordering Montemayor to forfeit $192,000,000. 1 The court
then entered a separate order of judgment and commitment.
On appeal, Montemayor argues that the district court committed a fundamental
error when it disqualified Rice without holding an evidentiary hearing. Montemayor
also contends that the district court erred when it ordered him to forfeit the same
$192,000,000 that the lead defendant in this case, Edgar Valdez-Villareal, admittedly
derived from the crimes and previously had been ordered to forfeit. The government
has moved to dismiss Montemayor’s appeal as it relates to the forfeiture order.2
II. DISCUSSION
A. Disqualification of Montemayor’s Attorney
We review de novo whether a defendant’s voluntary, unconditional guilty plea
waives his ability to appeal adverse rulings of pretrial motions. United States v. Patti,
337 F.3d 1317, 1320 n.4 (11th Cir. 2003). Rule 32 requires that “[a]fter sentencing--
regardless of the defendant’s plea--the court must advise the defendant of any right to
appeal the sentence.” Fed. R. Crim. P. 32(j)(1)(B). We have long held that, generally
1
The district court also entered an order requiring Montemayor’s co-defendant, Edgar Valdez-
Villareal, to pay $192,000,000 in forfeiture.
2
We previously granted the government’s motion to dismiss Montemayor’s appeal in part,
dismissing Montemayor’s appeal of the denial of his motion to withdraw his guilty plea; however,
we carried the forfeiture issue with the case.
4
Case: 19-12047 Date Filed: 05/29/2020 Page: 5 of 7
speaking, “[a] defendant’s plea of guilty, made knowingly, voluntarily, and with the
benefit of competent counsel, waives all nonjurisdictional defects in that defendant’s
court proceedings.” United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984);
accord United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014).
A defendant who wishes to preserve appellate review of a non-
jurisdictional defect while at the same time pleading guilty can do so only
by entering a “conditional plea” in accordance with Fed. R. Crim. P.
11(a)(2). The conditional plea must be in writing and must be consented
to by the court and by the government.
United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (footnote omitted).
The Rule 11 plea colloquy “constitutes the constitutional minimum
requirements for a knowing and voluntary plea for federal courts.” Stano v. Dugger,
921 F.2d 1125, 1141 (11th Cir. 1991). The three core objectives of Rule 11 are: “(1)
ensuring that the guilty plea is free from coercion; (2) ensuring that the defendant
understands the nature of the charges against [him]; and (3) ensuring that the
defendant is aware of the direct consequences of the guilty plea.” United States v.
Camacho, 233 F.3d 1308, 1314 (11th Cir. 2000). There is a strong presumption that a
plea created by proceedings that follow Rule 11 is knowing and voluntary, and that
the statements made during that hearing are true. United States v. Gonzalez-Mercado,
808 F.2d 796, 800 & n.8 (11th Cir. 1987).
Here, Montemayor waived his challenge to whether the district court properly
disqualified his previous counsel because he entered an unconditional guilty plea.
While the district court did advise Montemayor of his right to appeal, it did not make
5
Case: 19-12047 Date Filed: 05/29/2020 Page: 6 of 7
his appeal conditional because it was not in writing, was not consented to by the
government, and the district court’s statement did not reference the disqualification of
Montemayor’s counsel. See Fed. R. Crim. P. 32(j)(1)(B). Montemayor confirmed at
his plea colloquy that he understood that he was under oath, he understood the charges
he was pleading guilty to, he waived his constitutional rights by pleading guilty, he
knew the consequences of pleading guilty, and he would be bound by his plea with no
right to withdraw it. Montemayor failed to rebut the strong presumption that the
statements he made during his Rule 11 hearing were true, which established that his
plea was knowing and voluntary. See Gonzalez-Mercado, 808 F.2d at 800 & n.8.
Thus, Montemayor waived his claim regarding his previous attorney’s disqualification
when he entered an unconditional guilty plea. Yunis, 723 F.2d at 796; Brown, 752
F.3d at 1347.
B. Montemayor’s Challenge to the Forfeiture Amount
Generally, we have jurisdiction to review only “final decisions of the district
courts.” 28 U.S.C. 1291. An appeal from a final judgment “draws in question all
prior non-final orders and rulings” that produced it. Barfield v. Brierton, 883 F.2d
923, 930-31 (11th Cir. 1989). In criminal cases, a “notice of appeal filed after the
court announces a decision, sentence, or order--but before the entry of the judgment or
order--is treated as filed on the date of and after the entry.” Fed. R. App. P. 4(b)(2).
Rule 4(b)(2) applies where a notice of appeal is filed after a sentence is announced but
before the judgment is entered on the docket, however, “[i]f the court has not yet
6
Case: 19-12047 Date Filed: 05/29/2020 Page: 7 of 7
decided the issue that the appellant seeks to appeal, then [Rule 4(b)(2)] does not come
into play.” Manrique v. United States, 137 S. Ct. 1266, 1273 (2017).
Here, Montemayor’s notice of appeal was filed before the district court
determined how much money he would be required to forfeit. Although his premature
notice of appeal became effective to appeal the final judgment and conviction when
those were later entered, it could not become effective to appeal the forfeiture order
because the district court determined the forfeiture amount separately. Id.
Accordingly, we affirm the convictions and grant the government’s partial motion to
dismiss.
AFFIRMED IN PART; DISMISSED IN PART.
7
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NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3171
NANCY L. FISHER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: December 15, 2004
___________________________
Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges.
PER CURIAM.
Nancy L. Fisher (“Fisher”) appeals from the decision of the Merit Systems
Protection Board (“Board”) affirming the dismissal of her appeal from a removal action
for lack of jurisdiction because her appeal was previously withdrawn. Fisher v. United
States Postal Serv., DE-0752-03-0359-I-1 (M.S.P.B. Jan. 7, 2004) (“Final Decision”).
We affirm.
BACKGROUND
Fisher, a craft employee of the Postal Service, appealed to the Board on June 5,
2003 based on her removal from the United States Postal Service (“Agency”). The
appeal included a claim for the Agency’s failure to restore her to her original position
after recovery from a compensable injury (“restoration claim”), as well as claims for
discrimination and wrongful termination. On June 30, 2003, the Administrative Judge
(“AJ”) issued an order regarding the Board’s jurisdiction (“Order”) over her appeal. The
AJ gave Fisher ten days to submit evidence and argument regarding jurisdiction over
the removal action. In the Order, the AJ informed Fisher that “craft employees of the
Postal Service do not have appeal rights from removal actions taken under 5 U.S.C.
Chapter 75 unless they are veterans with preference eligibility pursuant to 5 U.S.C. §§
2108 and 7511(a)(1)(B).” Fisher’s appeal form indicates that she is not a veteran.
On July 9, 2003, the AJ held a teleconference with Fisher’s representative and
the Agency’s representative. During that conference and in written response to the
Order, Fisher’s representative conceded that the Board does not have jurisdiction over
the removal action and withdrew the appeal after being informed that the restoration
claim would eventually be addressed. In a July 10, 2003 order, the AJ informed Fisher
that her restoration claim would be addressed in the three restoration claim appeals she
had pending.
The next day, July 11, the AJ held in Fisher v. United Stats Postal Serv., DE-
0752-03-0359-I-1 (M.S.P.B. July 11, 2003) (“Initial Decision”) that the Board lacked
appellate jurisdiction over Fisher’s removal action because it was previously withdrawn.
The Initial Decision stated:
04-3171 2
[t]he appellant has filed three appeals from the agency’s alleged failure to
restore her after her partial recovery from a compensable injury that are
currently dismissed without prejudice (DWOP). When these appeals are
reinstated, the appellant’s restoration claims may be fully litigated. If the
agency erroneously failed to restore the appellant after her partial
recovery from a compensable injury, that will of course take precedence
over and supersede the agency’s action in removing her. The appellant’s
representative was expressly advised of the foregoing during a status
conference on July 9, 2003.
Fisher v. United States Postal Serv., DE-0752-03-0359-I-1 at *1 n.2 (M.S.P.B. July 11,
2003 Initial Decision).
On January 7, 2004, the Board issued its Final Decision denying Fisher’s petition
for review, concluding that there was no new, previously unavailable evidence, and that
the AJ made no error in law or regulation that affected the outcome. Fisher timely
appealed to this court and we have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board unless we determine that its decision is (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000).
The Board’s precedent states that “[g]enerally, an employee’s withdrawal of an
appeal is an act of finality that removes the appeal from the Board’s jurisdiction, and . . .
the Board will not reinstate an appeal once it has been withdrawn in the absence of
unusual circumstances such as misinformation or new and material evidence.” Brown v.
Dep’t of the Navy, 71 M.S.P.R. 451, 453-54 (1996). Fisher does not present new and
material evidence in support of her request for reinstatement of her appeal of the
removal action. Instead, she argues that her representative did not communicate the
04-3171 3
withdrawal of her appeal to her and that her representative could not competently
respond due to illness. It is well settled, however, that “a person is bound by the
consequences of [her] representative’s conduct, which includes both [her
representative’s] acts and omissions.” Rowe v. Merit Sys. Prot. Bd., 802 F.2d 434, 437
(Fed. Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962)).
Moreover, Fisher expressly authorized her representative to make decisions on her
behalf when she signed Part II of the Board’s Appeal Form, Designation of
Representative.
Fisher also argues that her case should not be dismissed because this is a
“mixed case” and she made allegations of discrimination. The Board does not have
jurisdiction over claims of discrimination unless the claims are raised in connection with
an otherwise appealable action. See Cruz v. Dep’t of Navy, 934 F.2d 1240, 1245 (Fed.
Cir. 1991) (en banc). Since the appeal was withdrawn, the Board cannot adjudicate
Fisher’s allegations of discrimination in this action.
We have considered all of Fisher’s arguments and hold that the Board properly
concluded that it lacked jurisdiction over Fisher’s appeal because it was previously
withdrawn. 1 Accordingly, we affirm.
1
According to the assertions of the Agency, the three appeals filed by Ms.
Fisher alleging that the Agency failed to restore her to duty that were dismissed without
prejudice have been reinstated and adjudicated. See Fisher v. United States Postal
Serv., M.S.P.B. Docket Nos. DE-0353-02-0393-I-1, DE-0353-03-0072-I-3, and DE-
0353-03-0231-I-3, slip op. (Initial Decision, June 29, 2004, which became the Final
Decision of the Board on August 3, 2004).
04-3171 4
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350 B.R. 906 (2006)
Eric OLSEN, Kevin Swartz, Jason C. McBride, Plaintiffs,
v.
Alberto GONZALES, in his official capacity as Attorney General of the United States of America, and Ilene Lashinsky, fin her official capacity as United States Truzstee, Defendants.
No. 05-5365-HO.
United States District Court, D. Oregon.
August 11, 2006.
*907 *908 *909 *910 Douglas R. Ricks, Keith D. Karnes, Olsen Olsen & Dairies, Salem, OR, for Plaintiffs.
Justin Michael Sandberg, U.S. Department of Justice, Washington, DC, for Defendants.
ORDER
HOGAN, District Judge.
Plaintiffs brings this suit challenging the constitutionality of various provisions of the Bankruptcy Code enacted in the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). Specifically, plaintiffs challenge 11 U.S.C. §§ 526(a)(4), 526(a)(1), 527, and 528 as violative of the First Amendment. In addition, plaintiffs contend that 11 U.S.C. §§ 526-528 are too vague in violation of the Fifth Amendment's Due Process Clause.
Sections 526, 527 and 528 require "debt relief agencies" who render "bankruptcy assistance" to enter written contracts with "assisted persons," disclose the extent of services provided and fees charged, and disclose clearly and conspicuously in all advertising that their services contemplate bankruptcy. Debt Relief agencies are required to provide a detailed written notice to all "assisted persons" of the disclosure requirements of the Code, the obligation of accuracy and truthfulness on those disclosures, and that failure to comply with those requirements carry potential civil and criminal sanctions. 11 U.S.C. § 527. They are also required to advise the "assisted person" that the person may proceed pro se, or may hire an attorney, or may hire a bankruptcy petition preparer, and that only attorneys and not petition preparers can render legal advice. Id. They are required to provide the "assisted person" with information on how to value assets, how to complete bankruptcy schedules, and how to determine what property is exempt. Id. Debt relief agencies are prohibited from failing to provide the services they contracted to provide, counselling any person to make false statements, or advising the person "to incur more debt in contemplation of such person filing a case under this title or to pay an attorney or bankruptcy petition preparer." 11 U.S.C. § 526(a)(4). Section 526(c) creates civil liability for violation of the duties enumerated.
Plaintiffs Eric Olsen and Kevin D. Swartz are attorneys who practice bankruptcy law. Plaintiff Jason McBride is an attorney who does not represents clients in *911 bankruptcy or file petitions for relief under the bankruptcy code.
Defendants move to dismiss the complaint contending that BAPCPA does not violate the First or Fifth Amendments. however, an issue that must first be addressed is whether attorneys and specifically plaintiffs are debt relief agencies for purposes of the Act. a plaintiffs do not fall within the definition of "debt relief agency," then they lack standing to bring this suit and the suit must be dismissed. In addition, even if plaintiffs are debt relief agencies, there is still an issue of whether a live case or controversy exists.
The challenged provisions of the BAPCPA apply to "debt relief agencies."
The term "debt relief agency" means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110, but does not include
(A) any person who is an officer, director, employee, or agent of a person who provides such assistance or of the bankruptcy petition preparer;
(B) a nonprofit organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986;
(C) a creditor of such assisted person, to the extent that the creditor is assisting such assisted person to restructure any debt owed by such assisted person to the creditor;
(D) a depository institution (as defined in section 3 of the Federal Deposit Insurance Act) or any Federal credit union or State credit union (as those terms are defined in section 101 of the Federal Credit Union Act), or any affiliate or subsidiary of such depository institution or credit union; or
(E) an author, publisher, distributor, or seller of works subject to copyright protection under title 17, when acting in such capacity.
11 U.S.C. § 101(12A). "The term `assisted person' means any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $150,0n." 11 U.S.C. § 101(3).
A. Standing
1. Are Attorneys Debt Relief Agencies?
The term "bankruptcy assistance" means any goods or services sold or otherwise provided to an assisted person with the express or implied purpose of providing information, advice, counsel, document preparation, or filing, or attendance at a creditors' meeting or appearing in a case or proceeding on behalf of another or providing legal representation with respect to a case or proceeding under this title.
11 U.S.C. § 101(4A). This definition specifically includes "legal representation." One of the early decisions addressing this issue (in an advisory opinion on the court's own motion) concludes that attorneys are not "debt relief agencies within the meaning of the BAPCPA". See In re Attorneys At Law and Debt Relief Agencies, 332 B.R. 66 (Banke.S.D.Ga.2005).[1]
Judge Lamar Davis acknowledged that the language defining debt relief agency is broad enough to include attorneys and law firms. Id. at 67-68. Judge Davis also noted, however, that the definition did not *912 include the word "attorney" or "lawyer," but did include "bankruptcy petition preparer" which is elsewhere defined to exclude attorneys and their staffs. Id. at 69. Judge Davis also noted that the definition of attorney did not make reference to debt relief agency. Id.; 11 U.S.C. § 101(4). Judge Davis concluded that the inclusion of the term "legal representation" in the definition of "bankruptcy assistance" was Congress's effort to empower the Bankruptcy Courts presiding over a case with authority to protect consumers who are before the Court, who may have been harmed by a debt relief agency that may have engaged in the unauthorized practice of law, and whose existing remedies for any damage is more theoretical than real. In re Attorneys, 332 B.R. at 69. Judge Davis also took issue with the fact that Section 527(b) requires debt relief agencies to inform assisted persons that they have the right to hire an attorney or to represent themselves, that only an attorney can render legal advice, and how to perform services pro se that would be universally provided if the person hired an attorney. Judge Davis opined that the provision is a consumer protection provision intended to regulate that universe of entities who assist persons but are not attorneys. Id. at 69-70. Judge Davis also noted that to construe debt relief agency as including attorneys "would be a breathtakingly expansive interpretation of federal law to usurp state regulation of the practice of law via the ambiguous provisions of this Act, which in no clear fashion lay claim to the right to do any such thing." Id. at 71.
Nonetheless, the legislative history does provide a very strong indication that attorneys are included in the definition. "The bill's consumer protections include provisions strengthening professionalism standards for attorneys and others who assist consumer debtors with their bankruptcy cases." H.R.Rep. No. 109-31, 109th Cong. 1st Sess. at 4. reprinted in 2005 U.S.C.C.A.N. at 103. On March 9, 2005, Senator Feingold proposed amendment No. 93 to Congress which would have excluded lawyers from the definition of debt relief agencies. See 151 CONG. REC. S2306-02, 2316-17 (2005). The Senate dad not address Senator Feingold's proposal See id.[2] However, it is the plain language of the Act that leads to the conclusion that attorneys are to be included in the definition of "debt relief agency." Thus, further use of the tools of statutory construction is not necessary. "Bankruptcy assistance" is defined to include services provided for the purpose of counsel and legal representation. The definition of "debt relief agency" specifically lists five exclusions and Congress could have put attorney in the list if it meant to exclude attorneys.
2. Are Plaintiffs Debt Relief Agencies?
Assuming attorneys are included in the definition of debt relief agency, defendants contend that the plaintiffs have failed to properly allege they are regulated attorneys because they failed to allege they advise debtors with less than $150,000 in non-exempt assets whose debts coned primarily of consumer debts to file for bankruptcy. Such pleading deficiency can be overcome with a simple amendment and the court declines to dismiss on this ground. But this demonstrates another issue whether a live case and controversy exists.
3. Is the Threat of Enforcement Real and Immediate?
The Court must first determine whether it has jurisdiction to rule on the *913 allegations in plaintiffs' complaint. "The federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of [the jurisdictional] doctrines.' " U.S. v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132L.Ed.2d 635 (1995). Plaintiffs bear the burden of demonstrating that this suit involves a "case or controversy." In Arizonans For Official English v. Arizona, the United States Supreme Court stated:
Article III, § 2, of the Constitution confines federal courts to the decision of "Cases" or "Controversies." Standing to sue or defend is an aspect of the caseor-controversy requirement. To qualify as a party with standing to litigate, a person must show, first and foremost, "an invasion of a legally protected interest" that is "concrete and particularized" and "`actual or imminent.'"
520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). To satisfy the Article III case or controversy requirement, a complainant must have suffered some actual injury that can be redressed by a favorable judicial decision. Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). Plaintiffs must allege some threatened or actual injury resulting from the ostensibly illegal action. Abstract injury is not enough. It must be alleged that plaintiffs have sustained or are immediately in danger of sustaining direct injury as the result of the challenged statute. The injury or threat of injury must be both real and immediate, not conjectural or hypothetical. O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).
The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy. [A] federal court has neither the power to render advisory opinions nor `to detide questions that cannot affect the rights of litigants in the case before them.' as judgments must resolve "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."
Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975).
Three elements must be present for plaintiffs to satisfy the case or controversy requirement of constitutional standing. First, plaintiffs must demonstrate actual injury. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Second, plaintiffs must establish a casual link between the injury and the challenged conduct. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id.
In this case, there has been no threatened enforcement of the BAPCPA against plaintiffs. Some courts have concluded that attorneys do not have standing to challenge BAPCPA's constitutionality. See In the Matter of Francis McCartney and Beverly McCartney, 336 B.R. 588 (2006) (counsel for debtors asked court to determine that attorneys who practice before the court are not debt relief agencies because, among other grounds, the BAPCPA violates the First Amendment); Geisenberger v. Gonzales, 346 B.R. 678 (E.D.Pa.2006) (attorney sought declaratory judgment arguing sections 526, 527 and 528 are unconstitutional).
The complaint relates the background to the passage of the BAPCPA and the requirements of the challenged provisions. The complaint notes the possibility of sanctions for violation of the challenged *914 provisions. The complaint further alleges jurisdiction and venue and identifies the parties. While the complaint does identify two of the plaintiffs as practicing in the area of bankruptcy law[3] it only notes the Act provides certain obligations or prohibitions on them. The complaint does not allege an injury or threat of enforcement of the challenged provisions subjecting plaintiffs to sanctions.
The complaint hints at threatened injury in the allegation that "The code's requirement that plaintiffs perform any services that plaintiff informed an assisted person that plaintiffs would provide unconstitutionally chills speech by subjecting plaintiffs to sanctions including disgorgement should plaintiffs refuse to provide promised services that later become ill-advised, negligent or unethical." Complaint (# 1) at ¶ 24. Again, however, there is no allegation of threat of enforcement for taking action that would be in violation of the state rules of professional conduct. Indeed, the attorney general states that section 526(a)(1) does not require attorneys to perform services that become unnecessary or unethical because to do so would be contrary to the purpose of the statute. See Memorandum in support of motion (# 14) at p. 17 and Reply (# 19) at p. 10. Thus, there is no immediate threat of sanction chilling speech related to this allegation.
There is no allegation of a feared future event and there is no as applied challenge here. However, plaintiffs have alleged the chilling effect of section 526(A)(1) and a simple amendment could also provide the allegation that the more troubling section 526(a)(4) also chills speech as argued in the briefing.[4]
In New York Bar Association v. Reno, the court found standing on the part of the bar association to seek an injunction preventing the attorney general from enforcing a statute that imposed a criminal penalty for counselling individuals to dispose of assets in order to become eligible for medicaid even though the attorney general stated that the Justice Department was not likely to enforce the statute. New York Bar Association v. Reno, 999 F.Supp. 710 (1998). The court found per se irreparable injury if enforcement of the statute deprived a party of its First Amendment rights. A similar challenge could be made here.
In finding the New York State Bar Association v. Reno decision incorrect, the United States District Court for Rhode Island noted that in order to establish standing to challenge the validity of a statute, the plaintiff must demonstrate a realistic danger of sustaining a direct injury as a result of enforcement and an actual injury can exist where expression is chilled. However, where the Attorney General has expressed an opinion not to enforce a statute and where a plaintiff can not point to a single instance of prosecution under the statute, the self censorship is not objectively reasonable. Magee v. United States, 93 F.Supp.2d 161, 163-165. But the Magee court noted that the attorney general expressed her unequivocal opinion that the statute is unconstitutional, and she had communicated to Congress her intention not to defend or enforce it. Moreover, she had directed the various U.S. Attorneys under her command not to investigate or prosecute alleged violations. The same cannot be said in this case.
*915 On July 26, 2033, the Northern District of Texas found that the section 59:,5(a)(4)'s restriction on legal advice violated the First Amendment, Although the court dismissed the case for failure to actually allege the section 526 challenge in the complaint itself it did so with leave to amend and addressed the constitutionality of that section. Hersh v. United States, 347 B.R. 19 (N.D.Tex.2006). The Hersh court found standing demonstrated by the chilling effect of the statute which caused immediate harm.
To the extent that plaintiffs present a facial challenge, "a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as applied challenge." City of Chicago v. Morales, 527 U.S. 41, 78 n. 2, 119 S.C.X. 1849, 144 L.Ed.2d 37 (:999); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 397 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."), Erwin Chemerinsky, CONSTITUTIONAL ISSUES POSED in the BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT of 2035, 79 Am. Bankr.L.J. 571, 579 (2305) (explaining a facial challenge to invalidate 11 U.S.C. § 526(a)(4) would likely not meet with success). Additionally, the Supreme Court has expressed a strong preference for as applied, rather than facial, challenges because "Macial invalidation `is manifestly, strong medicine' that has been employed by the Court sparingly and only as a last resort.'" Nat'l Endow. for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 580 (1998) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 29,08, 37 L.Ed.2d 83.0 (1973)).
For the most part, plaintiffs seek an advisory opinion as to what they can and cannot do under the BAPCPA. The concerns plaintiffs present with respect to BAPCPA are legitimate and will have to be addressed at some point, but that time will only be appropriate with a fully-realized as-applied challenge. Given that there has been no instance of enforcement of the challenged provisions against an attorney, most of the challenges raised by plaintiffs are not ripe. Accordingly, with the exception of the asserted chilling effect of the challenged sections, the complaint is dismissed for lack of standing under Fed. R.Civ.P. 12(b)(1).
B. Section 526(a)(4)
Plaintiffs challenge section 526(a)(4) of the BAPCPA alleging the prohibition on advising clients to incur debt in contemplation of bankruptcy, if the client is an "assisted person," violates the First Amendment. The Hersh court found that, regardless of whether strict scrutiny was applied or the Gentile Standard[5] (advocated by the government here):
*916 section 526(a)(4) prevents lawyers from advising clients to take actions that are lawful, even under BAPCPA.
Moreover, taking on additional debt "in contemplation" of bankruptcy does not necessarily constitute abuse. [I]t seems quite possible that sometimes taking on more debt could be the most financially prudent option for someone considering bankruptcy. That situation could be the case when: (1) refinancing at a lower rate to reduce payments and forestall or even prevent entering bankruptcy; or (2) taking on secured debt such as a loan on an automobile that would survive bankruptcy and also enable the debtor to continue to get to work and make payments. Thus, section 526(a)4 prevents lawyers from giving clients their best advice. [Footnote omitted where court notes that the provision would also deprive the court of good counsel thus prohibiting speech upon which the court must depend for the proper exercise of judicial power citing Legal Services Corp. v. Velazquez, 531 U.S. 533, 545, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) ] Section 526(a)(4), therefore, is over inclusive in at least two respects: (1) it prevents lawyers from advising clients to take lawful actions; and (2) it extends beyond abuse to prevent advice to take prudent actions. Thus, section 526(a)(4) of the BAPCPA imposes limitations on speech beyond what is "narrow and necessary." Gentile, 501 U.S. at 1075, 111 S.Ct. 2720. See also In Re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982) (even under intermediate scrutiny, [s]tates may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive."); Conant v. Walters, 309 F.3d 629, 638-39 (9th Cur. 2002) (finding that government could not justify policy that threatened to punish a physician for recommending to a patient the medical use of marijuana on ground that such a recommendation might encourage illegal conduct by the patient). Accordingly, the court finds 11 U.S.C. § 526(a)(4) facially unconstitutional . . .
This reasoning is persuasive. The regulation is not sufficiently narrow to achieve the legitimate interest of preventing abuse in the bankruptcy system as it also ensnares advice regarding lawful actions in contemplation of bankruptcy that benefit the debtor and creditors. I agree with the Hersh court that section 526(a)(4) is overly restrictive in violation of the First Amendment. Of course the regulation does strike at actual opportunistic abuses, but the Hersh court noted two instances where the provision reaches beyond abuse into legitimate and beneficial actions. Other legitimate reasons for incurring debt may be taking out a loan to obtain the services of bankruptcy attorney, to pay the filing fee in a bankruptcy case or the conversion of a non-exempt asset to an exempt asset which is still allowed under the Bankruptcy code. Other important legitimate incursions of debt could be the refinance of a mortgage that allows a debtor to pay off the mortgage and other debts, such as credit card debt, in a chapter 13 where failure to refinance may only allow the debtor sufficient funds to pay off one or the other but not both. Moreover, the definition of "debt relief agency" excludes non-profits from the regulation and thus debtors in bankruptcy can still get advice that suggests the abuses the regulation was designed to prevent. So the regulation is both under-inclusive and over-inclusive in violation of even the Gentile standard.
C. Section 526(a)(1)
Plaintiffs allege that section 526(a)(1) unconstitutionally chills speech *917 by subjecting them to sanctions for failing to perform services which later become ill-advised or unethical. The provision requires a debt relief agency to perform services that the agency informed an assisted person it would provide in connection with a bankruptcy proceeding. However, courts should interpret this section to not require attorneys to perform ill-advised or unethical services. An as-applied challenge fails where the statute can be interpreted in way that does not violate the constitution. indeed, among the statute's purposes are limiting unethical conduct and increasing responsibility and integrity. See Clark v. Martinez, 543 U.S. 371, 385, 125 S.Ct. 716, 160 L.Ed.2d 734 (2035) (interpretation of statues is based on purpose). Moreover, speech is not chilled by the provision. At most, it would require attorneys to couch their promises in conditional language and not to abstain from speech as plaintiffs contend. The challenge to this section is dismissed.
D. Section 527
Plaintiffs allege that section 527's required statements such as an assisted person has a right to hire a bankruptcy petition preparer who is not an attorney, unconstitutionally compels speech.[6]
The Hersh court provides persuasive reasoning as to why this section passes constitutional muster:
The Supreme Court has previously addressed statutes that require a member of a profession to provide customers with factual information regarding provided services. See, e.g., Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (licensed fundraisers); Planned Parenthood of Southeastern Penn. v. Casey, 535 U.S. 833, 112 S.Ct. 2791, 120 L.Ed..2d 674 (1992) (doctors providing abortions). Clearly, section 527 implicates the professional's First Amendment rights not to speak. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (First Amendment rights "include[ ] both the right to speak freely and the right to refrain from speaking at all."); Riley, 487 U.S. at 797-98, 138 S.Ct. 2657 ("[C]ases cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of `fact': either form of compulsion burdens protected speech.") Yet, as members of a licensed profession, attorneys and other professionals are subject to regulation of their professional activities by the state, which may extend to speech. See Riley, 487 U.S. at 799, 108 S.Ct. 2637; In re Sawyer, 360 U.S. 622, 646-47, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959) (Stewart, J., concurring); Innovative Database Sys. v. Morales, 990 F.2d 217, 221 (5th Cir.1993).
In Riley, the Supreme Court applied strict scrutiny to invalidate a North Carolina law requiring that "professional fund-raises disclose to potential donors, before an appeal for funds, the percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity." Riley, 487 U.S. at 795-96, 108 S.Ct. 2667. The Court found that "the compelled disclosure will almost certainly hamper the legitimate efforts of professional fundraisers to raise money for the charities they represent," that the "provision necessarily discriminates against small or unpopular charities," and that "more benign and narrowly tailored options are *918 available." Id. at 799-803, 108 S.Ct. 2667. The Court concluded that the means chosen to achieve the state's interest in full disclosure were "unduly burdensome and not narrowly tailored." Id. at 798, 108 S.Ct. 2667; see also Tex. State Troopers Ass'n, Inc. v. Morales, 10 F.Supp.2d 628, 633-34 (N.D.Tex.1998) (relying on Riley to find "the Court must hold unconstitutional a mandatory disclosure provision directed towards solicitation where more benign and narrowly tailored options are available.")
In Casey, a more closely analogous circumstance, a plurality of the Court upheld a Pennsylvania provision requiring doctors to provide a woman seeking an abortion with "truthful, nomnisleading information" about the procedure, health risks, conditions surrounding her pregnancy, and the availability of state provided information. Casey, 505 U.S. at 881-82, 112 S.Ct. 2791. In upholding the provision, the Court recognized a substantial government interest in providing a women with the risks of the procedure and a legitimate interest in ensuring a "mature and informed" decision. Id. at 882-83, 112 S.Ct. 2791. Further, requiring the doctors to provide information presented no "substantial obstacle" and was not an "undue burden." Id. at 883, 112 S.Ct. 2791.
In the case at hand, section 527 advances a sufficiently compelling government interest and does not unduly burden either the attorney-client relationship or the ability of a client to seek bankruptcy. The government clearly has a legitimate interest in attempting to ensure that a client is informed of certain basic information before he or she commences a case in bankruptcy. The amount of debt discharged by bankruptcy in a given year can be tens of billions of dollars, H.R. REP. 109-31, reprinted in 2005 U.S.C.C.A.N. 88, 91, and as among consumer creditors, attorneys, and their debtor clients, the consumer debtor is often at an informational disadvantage. Thus, the government interest is significant.
Given that significant interest, the compelled speech of section 527 is a reasonable burden. . . . [I]n an area of law as intricate as bankruptcy, a generalized statement may often require further explanation by a client's attorney. [footnote omitted]. Nothing in section 527 prevents this. Further, the section itself provides that the statement may be altered, so long as the content is "substantially similar," and that the statements need only be provided "to the extent applicable." 11 U.S.C. § 527(b). This leaves the bankruptcy attorney with sufficient control of the distribution of the messages of the statement to avoid any undue burden. See Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 532-34 (8th Cir.1994) (upholding provision requiring doctors to provide information and where physicians may comment on or dissociate themselves from the materials.) Finally, unlike in Riley, the provision neither acts as a barrier inhibiting the ability of a potential client to seek relief nor disproportionately impacts the ability of certain attorneys to serve their clients. The factual, viewpoint-neutral statement provides a sufficiently benign and narrow means of ensuring that clients are aware of certain general information regarding bankruptcy.
Hersh, at pp. 10-13.
Plaintiffs contend that the required statement about cheaper non-attorney assistance is ill-advised and also amounts to required disclosure of an opponent's viewpoint. As noted by the Hersh court, nothing in the section 527 prevents attorneys *919 from providing additional information such as why a licensed attorney is beneficial. The required statement does not amount to disclosure of an opposing viewpoint. It only requires notice that assistance of another entity is available. The Court in Casey upheld a statute that required doctors to inform women contemplating abortion about the assistance available should she decide to carry pregnancy to full-term. 505 U.S. at 883, 112 S.Ct. 2791. The required statement challenged here does not require disclosure of a certain viewpoint it only requires notice of another option as in Casey.
E. Section 528
Plaintiff McBride challenges sections 528's required advertising disclosures as unconstitutionally compelling untrue, ill-advised and misleading speech. McBride specifically challenges the requirement to clearly and conspicuously use the statement "`We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.' or a substantially similar statement" in advertising. McBride states he advises clients to file bankruptcy and advises client about discharge ability of spousal and child support. However, McBride does not represent clients in bankruptcy matters and does not file petitions for relief. Thus McBride contends that he is precluded from advertising or relaying any information related to bankruptcy unless he makes the untrue required advertising statement.
The case law is not clear as to which standards apply to compelled commercial speech. But it does not appear that McBride is correct that he is required to give an untrue statement or not advertise his services regarding advising clients in areas of bankruptcy. The challenged required statement is "We help people file for bankruptcy relief under the Bankruptcy Code." But section 528 also permit a substantially similar statement which the court can interpret to mean "we advise people about filing for bankruptcy assistance under the code." Moreover, McBride could add details to his advertisements such as he does not actually file petitions.
Moreover, section 528 does not appear to violate the constitution in a facial challenge. In In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), the Court announced that the Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) four-prong intermediate scrutiny commercial speech test would apply to professional service advertising cases. The first prong requires the court to determine whether the expression is protected by the First Amendment right to commercial speech. This requires the expression at issue to propose a commercial transaction that is not unlawful or misleading. Central Hudson at 566, 100 S.Ct. 2343. The second prong requires a court to ask whether the government has a substantial interest. Id.[7] If both inquiries are positive, then the third and fourth prongs look to whether the regulation directly advances the governmental interest asserted and whether the regulation is narrowly drawn. Id. In Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 477, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the Court noted that a narrowly drawn regulation does not have to be the least restrictive means, but rather be "something short of a least-restrictive-means standard."
However, In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) the Court *920 addressed the validity of a state statute that compelled the disclosure of possible litigation costs in attorney advertisements. The Court recognized that disclosure requirements implicated the attorney's First Amendment right, but refused to hold the requirement unconstitutional. Instead, the Court applied the rational basis test and held that an "advertiser's rights [were] adequately protected as long as disclosure requirements [were] reasonably related to the [s]tate's interest in preventing deception of consumers." Id. at 651, 135 S.Ct. 2265. This standard will not inhibit the government's ability to regulate deceptive advertising since it would allow the government to pass legislation to address problems one piece at a time. Id. at 651, n. 14, 105 S.Ct. 2265.
But, in Riley v. National Federation of the Blind, 487 U.S. 781, 796, 108 S.Ct. 2667, 101 LE d.2d 669 (1988), the Court applied strict scrutiny and invalidated a regulation requiring disclosure of the amount of contributions that were actually turned over to charity. But the Zauderer decision is more closely matched factually with the present case. And the Court in Riley also stated that the regulation applied to non-commercial speech. Thus, it appears that the rational basis test applies, but even if intermediate scrutiny of Central Hudson applied, the regulation passes constitutional muster.
Prior to section 528 of the Code, consumer bankruptcy attorneys advertised themselves truthfully as bankruptcy attorneys. Such advertising was not illegal, false, deceptive, or misleading. With the enactment of section 528, consumer bankruptcy attorneys are compelled to advertise themselves as "debt relief agencies" that "help people file for bankruptcy relief under the Code" which is still not illegal or misleading. Thus, the first prong of Central Hudson is satisfied.
The congressional legislative history indicates that section 528 is intended to "[p]revent deceptive and fraudulent advertising practices by debt relief agencies . . ." 151 CONG. REC. H2063-01, 2066 (2005). Preventing fraud is a substantial interest and the second prong is satisfied.
The third prong requires section 528 to directly advance the government's asserted interest of accurate advertising that would not deceive or defraud consumers. It could be argued that compelling consumer bankruptcy attorneys to advertise themselves as "debt relief agencies" fails to promote accurate advertising because the public would be unable to differentiate between an attorney and non-attorney debt relief agency. However, the argument fails because section 528 does not prohibit consumer bankruptcy attorneys from identifying themselves as both bankruptcy attorneys and "debt relief agencies" in advertisements. Thus, the forced inclusion of "debt relief agencies" in advertisements gives consumers more accurate information to better determine what type of debt relief agency they may require. McBride's argument regarding non-bankruptcy attorneys also fails because he does not take into account the fact that section 528 allows a statement of a "substantially similar" meaning to be advertised in place of "We help people file for bankruptcy relief under the Code." The ordinary meaning of "substantially similar" requires any statement to share largely the same characteristic as "We help people file for bankruptcy relief under the Code." Because this would require a case-by-case determination, a facial challenge is inappropriate.
The fourth prong of Central Hudson requires section 528 to be narrowly drawn. "Narrowly drawn" requires the government to use a means that is short of *921 the least-restrictive-means standard. The challenged provisions only requires debt relief agencies to insert a two-line admonition into certain advertisements. Although there may be better ways to prevent deceptive advertising, section 528 generally applies to most consumer bankruptcy attorneys while, generally not applying to non-consumer bankruptcy attorneys (McBride's claim notwithstanding). Thus, section 528 is narrowly drawn to protect consumer debtors from deceptive advertising and the fourth prong is satisfied. The motion to dismiss this claim is granted.
F. Vagueness
Plaintiffs lack standing on this issue because it is simply not concrete at this point.
Plaintiffs allege that sections 526-528 are unconstitutionally vague because they cannot tell who an assisted person is because "non-exempt" property is not identified by the code. Plaintiffs also argue that the code does not inform plaintiffs how to value assets and that it allows discriminatory and arbitrary treatment.
A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if, it authorizes or even encourages arbitrary and discriminatory enforcement. Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).
The term "assisted person" means any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $150,000. 11 U.S.C. § 131(3). Nonexempt property is not defined. The Supreme Court has provided a definition. An exemption is an interest withdrawn from the estate (and hence from the creditors) for the benefit of the debtor. Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). Section 522 determines what property a debtor may exempt. 11 U.S.C. § 522. There is substantial case law discussing exemptions. Valuation of exemptions is no different under the BAPCPA than prior to its enactment. The lack of a definition of nonexempt property does not render sections 526-28 unconstitutionally vague on its face.
Plaintiffs argue that in some instances a debtor can choose federal or state exemptions and conceivably one set of exemptions could produce more than $150,000 in nonexempt assets and the code does not state which set of exemptions to apply. However, the code gives debtors a choice, 11 U.S.C. § 522(b), and the court could construe the statute (in an as applied challenge) not to punish an attorney who chooses one over the other. This is an abstract challenge that is not ripe for review and does not demonstrate facial unconstitutionality.
Plaintiffs next argue that the code does not tell them how to value assets as there are several ways to value an asset like a car for example. Plaintiffs also take issue with the phrase "reasonably necessary" as used with respect to exemptions such as in 11 U.S.C. § 522(d)(10)(D). Again, this needs an as applied challenge and, in essence, plaintiffs would require the code to provide precise guidance on every asset imaginable. Perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("Condemned to the use of words, we can never expect mathematical certainty in our language").
*922 Plaintiffs further argue that they are subject to arbitrary and discriminatory enforcement of section 526-28 because the value of an asset is undefined. In a facial challenge, plaintiffs fail to show the lack of absolute precision in the definitions encourages arbitrary enforcement. The motion to dismiss the vagueness claim is granted.
CONCLUSION
For the reasons stated above, defendants' motion to dismiss (# 14) is granted in part and denied in part.
NOTES
[1] Another Georgia court has found that whether attorneys were subject to the BAPCPA obligations did not present a live case or controversy because there was no present threat of enforcement. See In the Matter of Francis I. McCartney and Beverly E. McCartney, 336 B.R. 588 (Bankr.M.D.Ga.2006).
[2] But the Supreme Court has stated that failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a statute. Lockhart v. United States, 546 U.S. 142, 126 S.Ct. 699, 702, 163 L.Ed.2d 557 (2005).
[3] As noted above, plaintiff Jason McBride does not represent clients in bankruptcy matters.
[4] Section 526(a)(4) prohibits a debt relief agency from advising an assisted person from incurring debt in contemplation of bankruptcy.
[5] Under Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) the Court found that a restriction imposed by ethical regulations on lawyers is permissible if (1) the regulation served "the State's legitimate interest in regulating the activity in question" and (2) "impose[d] only narrow and necessary limitations on lawyers' speech." Id. at 1075, 111 S.Ct. 2720. Strict scrutiny requires the regulation of the speech to be narrowly tailored to promote (2) a compelling government interest. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Here the challenged provision is not an ethical standard but a content based restriction and thus strict scrutiny applies. But 526(a)(4) fails even the lower standard because it is not sufficiently narrow.
[6] Plaintiffs have abandoned claims regarding information required by bankruptcy information sheets and do not discuss the allegations involving required information on how to file for bankruptcy and the different chapters.
[7] Such as preserving the reputation of the legal profession.
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714 F.2d 1332
114 L.R.R.M. (BNA) 2800, 98 Lab.Cas. P 10,483
Laurence G. RUSSELL, William L. Hanna and Eddie D. Langwell,Plaintiffs- Appellants,v.NATIONAL MEDIATION BOARD, the Atchison, Topeka and Santa FeRailway Company, et al., Defendants-Appellees.
No. 82-1466.
United States Court of Appeals,Fifth Circuit.
Sept. 22, 1983.Rehearing and Rehearing En Banc Denied Nov. 28, 1983.
Robert F. Gore, Nat'l Right to Work Legal Defense Foundation, Inc., Springfield, Va., John Cosmic, Amarillo, Tex., for plaintiffs-appellants.
Ann Sheadel, Atty., Dept. of Justice, Washington, D.C., for National Mediation Bd.
Joseph Guerrieri, Jr., John J. Sullivan, Washington, D.C., for Broth. of Railway, etc.
Appeal from the United States District Court for the Northern District of Texas.
Before RUBIN and JOLLY, Circuit Judges, and PUTNAM*, District Judge.
E. GRADY JOLLY, Circuit Judge:
1
This case, one of first impression, involves the question of whether jurisdiction exists under the Railway Labor Act, 45 U.S.C. §§ 151-188, to review refusal by the National Mediation Board to process an employee's application to hold an election among a class of employees after the Board determined that those employees apparently desired to terminate collective representation. We find that while judicial review of Board actions is limited, jurisdiction does exist to compel compliance with the Act. We find further that the Board has here failed to fulfill its statutory duty to investigate a representational dispute so as to allow full and free expression of employee desires with regard to collective representation. Jurisdiction exists, therefore, and we reverse the lower court and remand this case for disposition consistent herewith.
I.
2
In June 1943 the police officers and special agents below the rank of captain on the Atchison, Topeka and Santa Fe Railroad elected to be represented under the Railway Labor Act by the National Council of Railway Patrolmen's Union, AFL. This selection was certified by the Board in Case R-1091 (1943).
3
As revealed by the record, the employees in the bargaining unit over the years apparently considered the union a good representative. No attempt was made, prior to the events involved here, either to oust the union or to replace it with another union. No subsequent ratification of the union's representation has ever been made, even when the Railway Patrolmen's Union was replaced as the collective bargaining representative by its successor in interest, the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees ["BRAC"].
4
For whatever reason, however, this era of good feelings between BRAC and the Santa Fe police officers became inclement in 1980. In the wake of similar efforts by other Santa Fe employee groups, some of the officers formed an "Association of Santa Fe Railway Police Officers." On January 4, 1981, the Association mailed a letter to members of the bargaining unit soliciting their support in the attempt to "discertify" BRAC as the collective bargaining representative. According to the letter, the Association "will have its own representation, with collective bargaining rights, to bargain for our own needs, not those of the clerks." A follow-up letter on February 22, 1981, from two of the plaintiffs and a third bargaining unit employee indicated that response to the January 14 letter had been favorable and proposed selection of "a rank and file employee," Larry Russell, as the unit's representative "for purposes of getting us placed in the 'exempt employees' category." The letter indicated that such "exemption" should "result in improved benefits and conditions ...." The letter included a detailed list of proposed salary terms and conditions of employment. The last "proposal" stated that "[a]ll agreements, rules, practices, interpretations, and/or understandings, however established, shall be abrogated ...." Also included with the letter was an authorization card designating Larry Russell as representative "for all purposes under the Railway Labor Act." According to the plaintiff's brief, BRAC responded to the February 22 letter with two letters in opposition to the proposed rejection of BRAC as collective bargaining agent. These letters, however, are not included in the record.
5
In response to the second letter, 113 cards were returned "authorizing" Larry Russell to serve as "representative" for the employee unit. According to the plaintiffs, the unit comprised 210 employees and, thus, also according to the plaintiffs, a majority of the employees desired to be "exempt," i.e., desired no permanent collective bargaining representative.
6
Armed with the authorization cards, on March 21, 1981, Russell filed an "Application for Investigation of Representational Dispute" with the Board. The application stated that "a dispute has arisen among the employees of [Santa Fe] as to who are the representatives ... designated and authorized in accordance with the requirements of the Railway Labor Act." Russell requested that the Board "investigate this dispute and certify the name or names of the individuals or organizations authorized to represent the employees involved in accordance with Section 2, Ninth, of the Act."
7
The Board requested responses to Russell's application from Santa Fe and BRAC. BRAC filed a Statement of Position, opposing the application on the grounds that "(1) Russell's application in effect constitutes a petition for decertification," not authorized by the Act; "(2) Russell lacks any intention to act as the 'representative' of employees, as that term is used in the Railway Labor Act;" and (3) Santa Fe had "assisted and encouraged, if not initiated and orchestrated," Russell's application.
8
In a significant portion of its statement, BRAC discussed three previous Board cases in which a Santa Fe employee, acting on behalf of his craft or class of employees, had sought to oust the incumbent union, abrogate the collective bargaining agreement, and then have the Board revoke the certification, thereby leaving the employees unrepresented.1
9
The Board received the statements and evidence from BRAC and Santa Fe, as well as a statement from the plaintiffs in response to BRAC's statement. The Board also considered a documented telephone conversation between the chief hearing officer for the Board and Russell's attorney. According to the officer's report, dated April 13, 1981, the attorney indicated that Russell intended "to do what McDaniel did with the Yardmasters ..., namely, win, negotiate an 'exempt' status and walk away from his status as a representative." Among other things, the hearing officer told Russell's attorney that "the Board could dismiss an application any time it found a lack of intent to represent employees."
10
The other items of information considered by the Board in its investigation were three letters, verbatim copies each of the others, dated April 17, 1981, from Russell to his congressman, Representative Hightower, and to his two senators, Senator Tower and Senator Bentsen. These letters, consistent with the representation made by Russell's attorney to the Board's chief hearing officer, complained that the Board's officer had indicated that Russell could not be elected despite the employees' desire to elect him.
11
Consideration of these items was the extent of the Board's investigation. On May 21, 1981, the Board issued an order dismissing Russell's application. In pertinent part, that order stated:
12
The Board finds that Laurence G. Russell lacks an intent to represent the subject craft or class if elected and certified, as evidenced by his announced and undisputed plan to abrogate all existing collective bargaining agreements, thereby leaving the employees unrepresented in effect, notwithstanding the certification and the obligations which attach thereto.
13
The order declared that, absent intent to represent, certification was not appropriate under the Act:
14
The Railway Labor Act, unlike the National Labor Relations Act, contains no statutory provision for decertification of a bargaining representative. [ATSF], 8 NMB No. 18 (1980) [the Blankenship case]. See also, Manufacturers Railway Company, 7 NMB Nos. 233 and 250 (1980). The Board will not progress an application for investigation of a representation dispute where the applicant lacks the intent to represent the craft or class, if certified. Chicago Union Station, 8 NMB No. 45 (1980), and will dismiss such an application because it is void ab initio. Id.
II.
15
Russell et al. filed this suit in July 1981 alleging two causes of action. The plaintiffs sought a declaratory judgment under 28 U.S.C. §§ 2201 and 2202 that the Board's actions were unlawful, arbitrary and capricious, an abuse of discretion, in excess of statutory authority and violative of the plaintiffs' first amendment right to freedom of association. Also, a writ of mandamus was sought to compel the Board to hold a representational election.
16
The second cause of action sought an injunction directed to BRAC and Santa Fe to invalidate the union security agreement, at least until a representational election were held, requiring membership in BRAC as a condition of employment with Santa Fe.
17
The Board filed a Motion for Summary Judgment urging that the district court lacked jurisdiction to review its action. The district court granted that motion, holding that "[i]t is well established that [the Board's] decisions regarding representational disputes, made pursuant to Section 2, Ninth, of the Railway Labor Act, are not subject to judicial review." The lower court found "two limited exceptions" to this judicial bar: where the Board's action violates a party's constitutional rights and where it acts " 'in excess of its powers or contrary to a statutory mandate.' " (Citations omitted.) The court found that neither exception was present, holding that the Board's investigation was "sufficient and within its scope of authority," and that the investigation met the constitutional due process requirements.
18
The plaintiffs filed a timely appeal, challenging only the grant of the Board's motion for summary judgment.2
III.
19
The Board's refusal to "progress" Russell's Application for Investigation of Representational Dispute was based on the Board's determination that Russell was seeking a back door method of decertification, for which the Act does not provide. Collective representation is necessary, the Board argues, to assure the avoidance of strikes and transportation stoppages. Such avoidance is the "heart" of the Act. If the employees are not collectively represented, according to the Board, their only resort in the event of a dispute with management is to strike. The Board argues, therefore, that its policy in this case of precluding nonrepresentation of these employees falls squarely within its statutory mandate and is therefore outside our jurisdiction. As to the plaintiffs' constitutional argument, the Board simply argues that the provisions of the Act have been held constitutional, that the Board is acting consistently with those provisions, and therefore no constitutional rights have been violated.
20
The plaintiffs argue that the Board's policy violates the employees' statutory right to choose whether or not they wish to be collectively represented.3 They point out that none of the current members of the craft was a member in 1943 when unionization was initially chosen. According to the plaintiffs, the language of the Act, its legislative history and judicial precedent all provide employees a right to have or not to have collective representation. The plaintiffs argue that the Board's refusal to allow them their right to choose whether or not they are to be collectively represented violates the Board's statutory mandate. Also, the plaintiffs argue that the Board's policy violates their first amendment right to freedom to associate or not to associate.
IV.
21
Three principal issues are presented for our consideration: whether jurisdiction exists for review of the Board's action in a representational dispute; whether the Act requires a representational election even when that election might result in the selection of nonrepresentation; and whether the Board here, by refusing to "progress" Russell's application, violated its statutory mandate.
V.
22
We must first determine the extent, if any, to which this court may review the Board's actions here.
23
The starting point in considering the proper scope of this court's jurisdiction is the Railway Labor Act trilogy of Switchmen's Union v. NMB, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); General Committee of Adjustment of Brotherhood of Locomotive Engineers v. Missouri-K.T.R.R., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943); and General Committee of Adjustment of Brotherhood of Locomotive Engineers v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142, 88 L.Ed. 85 (1943). In Switchmen's Union the union opposed the Board's determination as to which yardmen should vote in a representation election. The union brought suit to have the certification of the collective bargaining representative set aside. The district court upheld the Board's decision and was upheld by the court of appeals. The Supreme Court held that the district court did not have jurisdiction to review the Board's action.
24
Reviewing the legislative history of the Railway Labor Act, the Court held that Congress clearly intended that the Board would be the final arbiter of representational disputes. Noting the background of arbitration and mediation which existed for resolution of railway labor problems, the Court in Switchmen's found "highly relevant" the legislative history of section 2, Ninth, of the Act.4 320 U.S. at 302, 64 S.Ct. at 98.
25
The Court found that the legislative history of the Act and the specific language of section 2, Ninth, demonstrated convincingly that the Board was to be " 'a neutral tribunal which can make the decision [as to the proper representative of an employee group] and get the matter settled.' " Id. at 303, 64 S.Ct. at 98 (quoting Commissioner Joseph B. Eastman, Federal Coordinator of Transportation and principal draftsman of the 1934 amendments to the Act). The Court noted that the provision whereby the Board could appoint a three-person committee to designate which employees should participate in a representation election was included "so that the Board's 'own usefulness of settling disputes that might arise thereafter might not be impaired.' S.Rep. No. 1065, 73d Cong., 2d Sess., p. 3." Id.
26
Where Congress took such great pains to protect the Mediation Board in its handling of an explosive problem, we cannot help but believe that if Congress had desired to implicate the federal judiciary and to place on the federal courts the burden of having the final say on any aspect of the problem, it would have made its desire plain.
27
Id. The Court went on to find that, having no subpoena or enforcement power, the Board's function "under § 2, Ninth, is more the function of a referee." Id. at 304, 64 S.Ct. at 98.
28
In the present case the authority of the Board in election disputes to interpret the meaning of "craft" as used in the statute is ... clear and ... essential to the performance of its duty. The statutory command that the decision of the Board shall be obeyed is ... explicit. Under this Act Congress did not give the Board discretion to take or withhold action, to grant or deny relief. It gave it no enforcement functions. It was to find the facts and then cease .... [T]he intent seems plain--the dispute was to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals of law.
Id. at 305, 64 S.Ct. at 99.5
29
Consistent with Switchmen's Union, the courts have universally agreed that the details and procedures of representational disputes are committed solely to the Board's discretion. British Airways Bd. v. NMB, 685 F.2d 52, 56 (2d Cir.1982); Brotherhood of Locomotive Firemen & Enginemen v. Seaboard Coast Line R.R., 413 F.2d 19 (5th Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 432, 24 L.Ed.2d 426 (1969); Teamsters v. BRAC, 402 F.2d 196, 205 (D.C.Cir.), cert. denied, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968). Courts are not to substitute their judgment for the Board's or "otherwise interfere with its legal function," Aircraft Mechanics Fraternal Assn. v. United Airlines, 406 F.Supp. 492, 500 (N.D.Cal.1976), and only the Board can certify or "decertify" a union. Texidor v. Ceresa, 590 F.2d 357, 359 (1st Cir.1978). So it is that judicial review of the Board has correctly been analyzed as "sparing." Sedalia-Marshall-Booneville v. NMB, 574 F.2d 394, 397 (8th Cir.1978). "Sparing," of course, is not an absolute.
30
To return for a moment to Switchmen's Union, we note that despite the Court's certainty that the Board determinations under section 2, Ninth, were not judicially reviewable, the Court did hint at one notable exception to an almost absolute judicial bar when it stated, "[a]ll constitutional questions aside, it is for Congress to determine how the rights which it creates shall be enforced." Id. 320 U.S. at 301, 64 S.Ct. at 97. As discussed below, this door left ajar has subsequently been pushed open.
31
Another opening to the preclusion of judicial review of section 2, Ninth, decisions by the Board was provided in Switchmen's Union 's companion case, General Committee of Adjustment of Brotherhood of Locomotive Engineers v. Missouri-K.T.R.R. Similar to Switchmen's Union, the dispute in this case involved which of two unions was appropriate to represent a craft of employees in grievance proceedings. The Court again upheld the determination made by the Board, stating that Congress had "fashioned an administrative remedy and left that group of disputes [between unions or between groups of employees] to the Board. If the present dispute falls within § 2, Ninth, the administrative remedy is exclusive." 320 U.S. at 336, 64 S.Ct. at 152. In the footnote to that last passage, however, the Court stated significantly, "[w]hether judicial power may ever be exerted to require the Mediation Board to exercise the 'duty' imposed upon it under § 2, Ninth, and, if so, the type or types of situations in which it may be invoked present questions not involved here." Id. at 336 n. 12, 64 S.Ct. at 152.
32
These two apertures for a judicial "peek at the merits"6 have been consistently used in the wake of the Switchmen's Union trilogy.7
33
The key case on point in this circuit is United States v. Feaster, 410 F.2d 1354 (5th Cir.), cert. denied, 396 U.S. 962, 90 S.Ct. 427, 24 L.Ed.2d 426 (1969). At issue in Feaster was whether the Board erred in making a unit determination. After a thorough analysis of the Act and Switchmen's Union, Feaster enumerated the limited instances in which judicial review of section 2, Ninth, disputes are allowed. First, judicial interdiction will be permitted where a complaining party makes a "substantial showing" of a violation of that party's constitutional rights as a result of the Board's action. 410 F.2d at 1366, quoting Boire v. Miami Herald Publishing Co., 343 F.2d 17, 21 (5th Cir.), cert. denied, 382 U.S. 824, 86 S.Ct. 56, 15 L.Ed.2d 70 (1965). Second, courts may intervene with Board actions which are " 'in excess of its delegated powers and contrary to a specific prohibition in the Act.' " 410 F.2d at 1367, quoting Leedom v. Kyne, 358 U.S. 184, 188, 79 S.Ct. 180, 184, 3 L.Ed.2d 210 (1958). Leedom involved certification by the National Labor Relations Board of a unit of both professional and nonprofessional employees in contravention of the express provision of 29 U.S.C. § 159(b)(1).8 In holding that the district court had jurisdiction, the Court in Leedom stated:
34
This suit is not one to "review," in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act .... [The Board's action] was an attempted exercise of power that had been specifically withheld. It deprived the professional employees of a "right" assured to them by Congress. Surely, in these circumstances, a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right so given.
35
358 U.S. at 188-89, 79 S.Ct. at 184.
36
After analyzing this language, Leedom 's analysis of Switchmen's Union, and Leedom 's progeny, Feaster summed up the Leedom exception as follows:
37
Under this exception access to the courts is accorded only if the Mediation Board's determination is infused with error which is of a summa or magna quality as contraposed to decisions which are simply cum error. Only the egregious error melds the Board's decision into justiciability. Lesser malignancies thwart the jurisdiction of the courts.
38
410 F.2d at 1368. Using this "narrow and rarely successfully invoked" standard, id., Feaster went on to determine that the Board had not so clearly and egregiously violated a specific prohibition of the Act, by determining that the facility involved was a "carrier" within the meaning of the Act, as to vest jurisdiction.9
39
Numerous court decisions have elaborated on judicial interdiction in Railway Labor Act cases. See BRAC v. Association for Benefit of Non-Contract Employees, 380 U.S. 650, 661, 85 S.Ct. 1192, 1998, 14 L.Ed.2d 133 (1965) (judicial review allowed where the Board acts in excess of statutory authority or where review necessary to compel performance by the Board of statutorily mandated duties); British Airways, 685 F.2d at 56 (judicial review allowed where the Board contravenes statutory policy); Teamsters v. BRAC, 402 F.2d at 205 (jurisdiction present where the Board's action is " 'so plainly beyond the bounds of the Act, or ... so clearly in defiance of it, as to warrant the immediate intervention of an equity court'," quoting Local 130, International Union of Electric, Radio & Machine Workers v. McCulloch, 345 F.2d 90, 95 (D.C.Cir.1965)); Air Canada v. NMB, 478 F.Supp. 615, 616 (S.D.N.Y.1980), aff'd., 107 L.R.R.M. 2049 (2d Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 381 (1981) (determination by the Board in representation dispute final unless in gross violation of statutory policy); Railway Employees Co-operative Ass'n. v. Atlanta B & C R.R., 22 F.Supp. 510, 514 (D.Ga.1938) (court without jurisdiction to review decision "unless it should become absolutely necessary to protect complainants' rights ....").
40
As a rule, we are not to look over the Board's shoulder in representational disputes. These matters are, apart from exceptional cases, solely the Board's concern. As discussed in Switchmen's Union, Congress intended that the Board have the final word in such matters. But where Congress has created a right, the Board cannot destroy that right without intervention by the judiciary. To hold otherwise would rob the Act of its vitality and thwart its purpose. 320 U.S. at 300, 64 S.Ct. at 97.
VI.
41
In this case, the plaintiffs argue that the Board has violated its own statutory mandate to allow employees their right to full and free expression of their choice regarding collective representation, including the right to reject collective representation. They argue further that the Board's action violates their constitutional right to freedom of association, including the right not to associate. Because we find that the Board has violated its statutory mandate, we need not address the constitutional issue.10
VII.
42
We believe that the Board breached its clear statutory mandate by not "progressing" Russell's application for investigation into the representational dispute. The process for such "progress" is set forth in 29 C.F.R. § 1206.2(a):
43
[W]here the employees involved in a representation dispute are represented by an individual or labor organization ... and are covered by a valid existing contract between such representative and the carrier a showing of proved authorizations (checked and verified as to date, signature, and employment status) from at least a majority of the craft or class must be made before the Board will authorize an election or otherwise determine the representation desires of the employees under the provision of section 2, Ninth, of the Railway Labor Act.
44
The Board refused to move forward with Russell's application for essentially two reasons. First, the Board determined that Russell did not intend to "represent" the unit employees within the meaning of the Act. Second, to allow the sought election, certification of Russell as the elected collective representative, abrogation of the contract and achievement of nonrepresented status for the craft or class would, according to the Board, violate its statutory duty to achieve the basic purpose of the Act. That purpose, the Board argues, is the avoidance of work stoppages resulting from labor/management disputes. And, in order to avoid those stoppages, collective representation is necessary.
45
In its first argument the Board defines "intent to represent" as the intent to represent in contract negotiations, contract disputes, grievance procedures, and in all other matters where a labor-management go-between might be effective. Because Russell did not "intend to represent" for all of those purposes and in fact intended ultimately not to represent the employees at all, the Board found that he could not have been a representative and, thus, there existed no "representational dispute."
46
No doubt, the above-listed functions are the usual, ordinary and anticipated functions of a "representative" under the Act. That Russell did not "intend to represent" his fellow employees in the accustomed fashion, however, does not mean that he did not "intend to represent" them within the meaning of the Act. Section 1, Sixth, defines "representative" as "any person or persons, labor union, organization, or corporation designated either by a carrier ... or by its ... employees, to act for it or them." There are no qualifiers attached to the Act's simple definition of "representative." The "representative" of a craft of employees is, simply, a person or union designated to act on their behalf, to accomplish what they seek to accomplish, and is not necessarily a man for all seasons. As discussed at length below, the Act nowhere requires collective representation. To accept the Board's definition of "intent to represent" would be to impose such a requirement. A claimed majority of the craft here wanted Russell, apparently, to terminate collective bargaining. Torturous interpretations of "representation" aside, Russell fits the bill.11
47
At oral argument the Board's attorney, in arguing that the Board determined correctly that no representational dispute existed because Russell did not intend to "represent" the craft employees, suggested that the appropriate course of action here would have been for the employees to have petitioned the Board "to hold an election to either vote for the current union representative, BRAC, or, no union." This, of course, is exactly what Russell was requesting, and the Board very well knows it now and knew it at the time Russell applied. In our view, this suggestion is nothing more than playing games with the plaintiffs and with this court.12 We do not see why the suggested course of action is any more or less objectionable than the action taken by Russell. In fact, the Board's suggested procedure is almost identical to the decertification vote under the National Labor Relations Act, which the Board has stated time and time again is not allowed by the Act.
48
The second, more substantive argument forwarded by the Board requires more attention. The Board correctly notes that the basic purpose of the Railway Labor Act is
49
to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.
50
45 U.S.C. § 152, First. This has been called the "heart" of the Act. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377-78, 89 S.Ct. 1109, 1114-15, 22 L.Ed.2d 344 (1969). See also California v. Taylor, 353 U.S. 553, 565-66, 77 S.Ct. 1037, 1044, 1 L.Ed.2d 1034 (1957) (purpose of Act is to provide for industry-wide government to avoid interruption of national transportation system); Slocum v. Delaware, L & W R.R., 339 U.S. 239, 242-43, 70 S.Ct. 577, 579, 94 L.Ed. 795 (1950) (Act represents a "considered effort on the part of Congress to provide effective and desirable administrative remedies for adjustment of railroad-employee disputes"); Pan Am World Airways v. Carpenters and Joiners, 324 F.2d 217, 220 (9th Cir.1963), cert. denied, 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982 (1964) (purpose of Act is to keep transportation moving); Estes, et al. v. Union Terminal Co., 89 F.2d 768, 770 (5th Cir.1937) (purpose of Act is "to facilitate peaceful, orderly adjustment of disputes between railroads and their employees, to prevent strikes and other disturbances.").
51
It cannot be gainsaid that the Act does in fact encourage collective bargaining as the mode by which disputes are to be settled and work stoppages avoided. Detroit & Toledo S.L.R.R. v. United Transportation Union, 396 U.S. 142, 148, 90 S.Ct. 294, 298, 24 L.Ed.2d 325 (1969). Under the Act, Congress gave unions "a clearly defined and delineated role to play in effectuating the basic congressional policy of stablizing labor relations in the industry." International Association of Machinists v. Street, 367 U.S. 740, 760, 81 S.Ct. 1784, 1795, 6 L.Ed.2d 1141 (1961). When the Act was initially passed in 1926, company-dominated unions were the rule, and, in its early years, the Act was not deemed effective. Thus, in 1934, the Act was amended, with a primary purpose being the strengthening of labor organizations vis-a-vis the carriers.13 As stated in Aircraft Mechanics Fraternal Ass'n., 406 F.Supp. at 497, the Board was created because, under the United States Board of Arbitration "[c]ompany unionism ... continued to present a problem. A means was required by which the will of the employees, uninfluenced by the employer, could be ascertained." This is consistent with the second "general purpose" of the Act found at 45 U.S.C. § 151a, namely, "to forbid any limitation upon freedom of association among employees or any denial of the right of employees to join a labor organization"; it is consistent as well with the third general purpose stated in section 151a, to provide "complete independence ... of employees in the matter of self-organization ...." Similarly, section 2, Third, provides for designation of representatives "without interference, influence, or coercion" and section 2, Fourth, provides that "[e]mployees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter." The Board is therefore correct when it argues that the Act supports collective bargaining and when it argues that one of the Board's purposes is to support collective bargaining.
52
This in no way, however, takes away from the fact that employees were given the right under the Act not only to opt for collective bargaining, but to reject it as well. The language of the Act, quoted above, clearly stands for this proposition. The employees "shall have the right" --not the duty --to select a collective bargaining representative. They shall have "complete independence" to organize ... or not organize. And while the "heart" of the Act directs that "every reasonable effort" be made "to make and maintain" collective bargaining agreements, it is only every reasonable effort which is required. The Act supports but does not require collective bargaining, and in our view, the implicit message throughout the Act is that the "complete independence" of the employees necessarily includes the right to reject collective representation.14 Indeed, the concept of "complete independence" is inconsistent with forced representation, most especially when that forced representation is at odds with employees' will and desires.
53
The legislative history of the Act expressly supports this view. In the official House committee report on the proposed amendments, the analysis of section 2 states that "the employees shall be free to join any labor union of their choice and likewise be free to refrain from joining any union if that be their desire ...." H.R.Rep. No. 1944 to accompany H.R. 9861, Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess. 2 (1934). In hearings on H.R. 7650, House Committee on Interstate and Foreign Commerce, 73d Cong., 2d Sess. 57 (1934), Commissioner Eastman stated that the legislation "does not require collective bargaining on the part of the employees. If the employees do not wish to organize, prefer to deal individually with the management with regard to these matters, why, that course, is left open to them, or it should be." Commissioner Eastman also testified before the Senate that "genuine freedom of choice [is] ... the basis of labor relations under the Railway Labor Act ...." Hearings on S. 3266, Senate Committee on Interstate Commerce, 73d Cong., 2d Sess. 157 (1934). Senator Wagner, later to be the chief architect of the National Labor Relations Act of 1935, stated in hearings on S. 3266 before the Senate, 73d Cong., 2d Sess. 76 (1934), that his understanding of the Act was not that it compelled an employee to join any particular union, but that its purpose "was just the opposite, to see that men have absolute liberty to join or not to join any union or to remain unorganized." And during the relatively brief debate in the House on H.R. 9861, Congressman Crosser, the primary sponsor and floor leader of the bill, stated that "[m]en may organize as they see fit .... [The Act] gives employees the absolute freedom to establish unions of employees of a company if they so desire ...." 78 CONG.REC. 11,713-14 (1934) (emphasis added).
54
The courts which have examined the issue of employees' rights to reject collective representation are in unanimous agreement that the Act provides such a right. The principal case on point is BRAC v. Association for Benefit of Non-Contract Employees, 380 U.S. 650, 85 S.Ct. 1192, 14 L.Ed.2d 133 (1965). In that case, involving two unions competing to represent a craft of employees, the Court considered the narrow question of whether the Board's ballot conflicted with the employees' right to vote against representation by either union. The Court had no trouble in determining that the "legislative history supports the view that the employees are to have the option of rejecting collective representation." 380 U.S. at 669 n. 5, 85 S.Ct. at 1202. Although the Court upheld the ballot form, it had no doubt about the right of employees, although then represented, to opt-out from under representation altogether. In dissent, Justice Stewart objected to the ballot form, which did not contain a "no union" box.15
55
This ballot form is directly attributable to the Board's view of what the bargaining pattern should be in the airline industry. The Board has stated that "the Act does not contemplate that its purposes shall be achieved, nor is it clear that they can be achieved, without employee representation ...." ... I believe both the language of the Act and its legislative history belie this view and, for that reason, I would order the Board to reconsider the form of its ballot.
56
380 U.S. at 673, 85 S.Ct. at 1204. Justice Stewart goes on to state that the Act
57
furnish[es] the opportunity for majority determination within each employee group of what the nature of bargaining shall be. But the Act is not compulsory. Employees are not required to organize, nor are they required to select labor unions or anyone else as their representatives. It has always been recognized that under the law the employees have the option of rejecting collective representation.
58
Id. at 674, 85 S.Ct. at 1205. In closing, Justice Stewart noted that the Board had "hewn to its mistaken belief that its duty is to encourage collective representation in the airline industry." Id. at 677, 85 S.Ct. at 1206.
59
In Teamsters v. BRAC, 402 F.2d 196 (D.C.Cir.), cert. denied, 393 U.S. 848, 89 S.Ct. 135, 21 L.Ed.2d 119 (1968), BRAC was the certified bargaining representative for Pan American clerks and office employees. BRAC sought to enjoin the Board from holding an election which would have determined whether the employees desired to be represented by BRAC or by the Teamsters. Two invalid elections were held and a third election scheduled, which BRAC opposed, arguing that "the Board has no power whatever to decertify a union; all it may do is certify some new representative." Because BRAC was to appear on the ballot, and because it was possible that fewer than half of the eligible voters might vote, it was possible that there might be a vote in favor of neither union, thereby rejecting collective representation. BRAC sought to enjoin the ballot, arguing, as the Board argues here, that no procedure for decertification was contained in the Act; therefore, BRAC argued, the ballot was by definition improper. The court cited BRAC v. Association for Benefit of Non-Contract Employees as support for the employees' right to reject any collective representation.
60
It is true ... that that case involved an attempt to unionize employees not then collectively represented, rather than, as here, an attempt by one union to dislodge another. We agree with counsel for the Board, however, that it is inconceivable that the right to reject collective representation vanishes entirely if the employees of a unit once choose collective representation. On its face that is a most unlikely rule, especially taking into account the inevitability of substantial turnover of personnel within the unit.
61
The right of employees to reject collective representation, recognized in Railway Clerks v. Association [for Benefit of Non-Contract Employees], yields as a corollary the Board's implied power to certify to the carrier that in a particular unit the employees have in fact rejected such representation .... The Board has in the past refused to certify a representative, when an election among unorganized employees failed to elicit the votes of 50% of the employees, without any hue and cry that employees must be represented so that the negotiation contemplated by the Act may go on. The Board may not only decline to certify a representative, but may go further and certify that there is no representative.
62
402 F.2d at 202-03 (emphasis added).
63
In Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945), modified upon rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946), the employees asserted a back-pay claim under the collective bargaining agreement. The union grievance committee handled the claim and settled with the employer. The employees were not satisfied with the settlement and pursued the matter. The Railroad Adjustment Board approved the settlement as conclusive on the grounds that the union, as the bargaining agent for the employees, had absolute control over such matters. The employees brought suit in federal court under 45 U.S.C. § 153, First (m), which allows suits from Railway Adjustment Board determinations involving money awards.
64
The Supreme Court held, inter alia, that because the employees had been denied any participation in the settlement and in the action before the Board, their rights under the Act individually to express their grievances had been denied.
65
It would be difficult to believe that Congress intended, by the 1934 amendments, to submerge wholly the individual and minority interests, with all power to act concerning them, in the collective interest and agency .... Acceptance of such a view would require the clearest expression of purpose. For this would mean that Congress had nullified all preexisting rights of workers to act in relation to their employment ... except as the collective agent might permit. Apart from the question of validity, the conclusion that Congress intended such consequences could be accepted only if it were clear that no other construction would achieve the statutory aims.
66
325 U.S. at 733-34, 65 S.Ct. at 1295 (emphasis added).16
67
Burley has been cited as "teach[ing] that individual rights of employees ... cannot be nullified unless Congress clearly intended such consequences." McElroy v. Terminal Railroad Ass'n., 392 F.2d 966, 969 (7th Cir.1968). We do not believe that Congress by the passage of the Act intended to take away existing rights of employees, e.g., the right not to be represented, but rather that it intended to grant additional rights. No intention to deprive employees of existing rights is contained in or can even be inferred from the Act. To the contrary, the obvious intent of the Act, as indicated by the language of the statute itself and the underlying legislative history, is that the goals of collective bargaining and employee freedom of choice are consonant and concurrent. The latter goal clearly is not subsumed by the former.17
VIII.
68
Having determined that the plaintiffs and their fellow employees have the clear right under the Act to opt for nonrepresentation, we turn to the key question in this case of whether the Board violated a clear statutory duty in refusing to go forward with Russell's particular application. It is undisputed that once the Board had determined that Russell intended to terminate collective representation in favor of "exempt" status, the Board refused further to investigate his application and the subject representational dispute.
69
This court has the power to order the Board to investigate, to investigate fully and completely and properly, and to certify the representative chosen by the craft of employees. Flight Engineers International Ass'n. v. Eastern Airlines, Inc., 359 F.2d 303, 308 (2d Cir.1966). As noted earlier, the question of whether judicial review could be exercised to command the Board to "do what Congress commanded, namely, to investigate and certify," had been reserved in General Comm. v. Missouri-K.T.R.R., 320 U.S. at 336 n. 12, 64 S.Ct. at 152.
70
Eliminating any reservation that existed, the Court in BRAC v. Association for Benefit of Non-Contract Employees, stated that in reviewing the Board's actions in a section 2, Ninth, representation dispute, a court's review extends only to determine whether the Board did in fact conduct the investigation. 380 U.S. at 661, 85 S.Ct. at 1198. The Act does not prescribe any set forms for such investigation and leaves that largely to the Board's discretion. Id. at 662, 85 S.Ct. at 1198. The Court did note, however, that despite that "broad and sweeping" command, "the Board's duty to investigate is a duty to make such investigation as the nature of the case requires." Id. (Emphasis added.)
71
In International In-Flight Catering Co. v. NMB, 555 F.2d 712 (9th Cir.1977), the Board had determined in 1974 that, based on authorization cards indicating a desire that the Teamsters be certified as the bargaining representative, a representational dispute existed. An election was held. The Teamsters lost the election and the Board certified that there was no bargaining representative for IICC's employees. In 1975, after authorization cards requesting an election had again been signed, the Board determined that a representational dispute again existed. This time, however, the Board, without holding any election, certified the union as the collective bargaining representative.18 IICC filed suit seeking a declaratory judgment, and the district court enjoined enforcement of the Board's certification.
72
On appeal, the Board contended that under the Act its actions regarding a representational dispute were not judicially reviewable, relying, as here, on Switchmen's Union. The Board stated that it had fulfilled its statutory duty to investigate in that it had compared the signatures on the authorization cards with those on IICC's payroll. The Board argued that the scope and form of its investigation, and its decision based thereon, were within its statutory discretion and as such were beyond the court's jurisdiction. The court disagreed.
73
This position advanced by the NMB disregards the import of § 2, Ninth, of the RLA, and Railway Clerks v. Non-Contract employees. Both state that the NMB has a duty to investigate the dispute. The dispute, in this case, advanced by the IICC was that the cards signed by the employees only called for an election and were not votes for representation without an election. The actual investigation undertaken by the NMB in merely comparing the signatures assumes the disputed point, that the cards represented votes ....
74
....
75
It is a perversion of the search for truth and the policy of the RLA for the NMB to continue to insist, in these circumstances, that it conducted an investigation and discharged its duty under the RLA.
76
555 F.2d at 718-19.
77
Judge Friendly in Ruby v. American Airlines, 323 F.2d at 255, stated succinctly that "[t]he Board's duty to investigate is a duty to make such investigation as the nature of the case demands." As indicated previously, the nature of the instant case is that the plaintiffs and their fellow employees dispute the incumbent union's representative status and have an apparent desire not to bargain collectively. When the Board's investigation reached the point of determining the intent of the employees, the Board refused further "to progress" Russell's application, refused further to investigate the legitimate dispute among the employees as to whether the union was their representative, and thereby denied the employees their rights under the Act. When the Board balked, it crossed over from being a disinterested "referee" to being a participant. To repeat, "[u]nder this Act Congress did not give the Board discretion to take or withhold action, to grant or deny relief. It gave it no enforcement functions. It was to find the facts and then cease ...." Switchmen's Union, 320 U.S. at 305, 64 S.Ct. at 99. The Board failed here to find the fact in dispute: who is the true representative of the employees? It is, therefore, a "perversion of truth" for the Board to insist that it conducted the investigation and discharged its duty under the Act.
IX.
78
This case is therefore reversed and remanded to the district court. The court shall remand this case to the Board and direct it to proceed with its investigation into the application filed by Russell as it would any other application for investigation of a representational dispute, and not inconsistent with this opinion.
79
REVERSED and REMANDED.
*
District Judge of the Western District of Louisiana, sitting by designation
1
As indicated in BRAC's Statement of Position, in Case No. R-5039, an individual, J.J. McDaniel, acting on behalf of Santa Fe's yardmasters, had been certified by the Board after a Board election as the bargaining representative on March 31, 1980, to replace the Railroad Yardmasters of America. McDaniel abrogated the collective bargaining agreement with Santa Fe. On July 1, 1980, at McDaniel's request, the Board revoked McDaniel's certification, thereby leaving the employees unrepresented
In Case No. R-5123, Raul Herrera was elected to represent the yardmasters employed by a Santa Fe subsidiary, Los Angeles Junction Railway Co. Herrera was certified as the representative on September 22, 1980. After abrogating the collective bargaining agreement, Herrera requested revocation of his certification. That request remains pending.
In the Matter of the Application of J.D. Blankenship, 8 NMB No. 18 (Oct. 20, 1980), involved an attempt by Blankenship to be certified as the representative for the class or craft of Santa Fe's dispatchers. The authorization cards distributed by Blankenship provided that he was to undertake "whatever processes are necessary to discertify [sic] my current application with the American Train Disptachers Association and to pursue whatever course of action is necessary to become an exempt employee of the Santa Fe ...." The Board dismissed the application on the grounds that the Act does not provide for "decertification" of a union.
On October 28, 1980, the Board issued a Notice of Hearing to determine whether there was any impropriety "on the part of the employee representatives and the carriers" involved in the McDaniel, Herrera and Blankenship cases. Insofar as the record reveals, that inquiry is pending.
2
Subsequent to granting the Board's summary judgment motion, the lower court granted BRAC's unopposed motion for summary judgment and Santa Fe's unopposed motion to dismiss
3
The plaintiffs point out that the Board has, prior to 1980, allowed employees to opt-out of collective representation by the "straw man" procedure sought to be used here. The plaintiffs cite eight Board cases in which this method was successful, including the J.J. McDaniel case, Case R-5039 (1980), discussed supra at note 1. The Board argues that it has never authorized "straw man" un certification, but rather considered that the persons seeking certification in those cases intended to remain as bona fide bargaining representatives. The plaintiffs point out that the "straw man" procedure is well known among Board pundits, citing GOHMANN, ARBITRATION AND REPRESENTATION: APPLICATIONS IN AIR AND RAIL LABOR RELATIONS 29 (1981) (outlining "awkward" method of decertification by individual employee standing for election)
Regardless of whether true precedent exists, however, the Board has clear authority to change its own procedures, so long as such changes comply with the requirements of the Act. Brotherhood of Locomotive Firemen and Enginemen v. Kenan, 87 F.2d 651, 654 (5th Cir.), cert. denied, 301 U.S. 687, 57 S.Ct. 790, 81 L.Ed. 1344 (1937).
4
45 U.S.C. § 152, Ninth, reads as follows:
Ninth. If any dispute shall arise among a carrier's employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been designated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the representative so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without interference, influence, or coercion exercised by the carrier. In the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election, or may appoint a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. The Board shall have access to and have power to make copies of the books and records of the carriers to obtain and utilize such information as may be deemed necessary by it to carry out the purposes and provisions of this paragraph.
5
Perhaps the most persuasive evidence of lack of judicial review over section 2, Ninth, determinations by the Board noted in Switchmen's Union is the provision for judicial review in section 3, First, of the Act (suits based on awards by the National Railroad Adjustment Board) and in section 9, Third, of the Act (suits based on awards by a board of arbitration). "When Congress in § 3 and in § 9 provided for judicial review ... and in § 2 of the same Act omitted any such provision ... it drew a plain line of distinction." 320 U.S. at 306, 64 S.Ct. at 99
6
Teamsters v. BRAC, 402 F.2d at 205
7
In Jaffe, The Right to Judicial Review, 71 HARV.L.REV. 401, 430 (1958), Switchmen's Union 's temerity is ascribed to "the mood of judicial self-deprecation and abdication into which the Court of that period had fallen." The article goes on to state that "Switchmen's Union has borne little fruit." But see 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE 42 (1958), which characterizes Switchmen's Union as "[m]uch the most important case holding that a statute inexplicitly precluded judicial review."
8
Despite the fact that Leedom involved a dispute under the National Labor Relations Act, Feaster characterized it as "the only undisputed exception to Switchmen's doctrine that Mediation Board decisions in representation matters are unreviewable." 410 F.2d at 1366 n. 11
9
Feaster briefly discussed a third exception to Switchmen's Union 's bar, that is, where the issue involves a question of "international urgency." 410 F.2d at 1365. Our review of the applicable case law indicates that this exception has received scant attention. It clearly does not weigh on the instant controversy
10
When the validity of an act of the Congress is drawn into question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided
Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1931), quoted in International Association of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961).
11
The Board would say that the employees are "represented" by someone who does not represent their wishes, and are not "represented" by someone who does represent their wishes. Orwell would understand this perfectly
12
Equally disturbing is the Board's response, when asked why Russell had not been informed of the "preferred" method of petitioning, that they had never been asked. Mr. Orwell, meet Mr. Kafka
13
H.R.Rep. No. 1944 to accompany H.R.Rep. No. 9861, Committee on Interstate and Foreign Commerce, 73rd Cong., 2d Sess. 3 (1934) (1934 amendments "in the interest of industrial peace and of uninterrupted transportation service."). The 1934 amendments created the Board out of the old United States Board of Mediation, which, in 1926, at the passage of the Act, had in turn replaced the Railroad Labor Board created by the Transportation Act of 1920. 41 Stat. 456 (1920). The Board was given significantly increased powers, especially in representation disputes. For an overview of the history of the Act, see Ruby v. American Airlines, 323 F.2d 248, 256 (2d Cir.1963), cert. denied, 376 U.S. 913, 84 S.Ct. 658 (1964); and Aircraft Mechanics Fraternal Ass'n. v. United Airlines, 406 F.Supp. 492, 497 (N.D.Cal.1976)
14
The statement in Virginian Ry. v. System Federation, 300 U.S. 515, 548, 57 S.Ct. 592, 599, 81 L.Ed. 789 (1937) (emphasis added) that the aim of the Act is to "secur[e] settlement of labor disputes by inducing collective bargaining with the true representative of the employees and by preventing such bargaining with any who do not represent them," is consistent with our holding here. The Act induces, it does not force, and that inducement applies only to the true representative. Likewise, in Order of Railroad Telegraphers v. Chicago & Northwestern Ry., 362 U.S. 330, 337, 80 S.Ct. 761, 765, 4 L.Ed.2d 774 (1960) (emphasis added), the Court stated that "[t]he Railway Labor Act safeguards an opportunity for employees to obtain a contract through collective rather than individualistic bargaining." See also International Association of Machinists v. Northwest Airlines, 673 F.2d 700, 707 (3rd Cir.1982) (to further goal of ensuring that designation of bargaining representation be free from employer coercion, the Board was "empowered to resolve representational disputes by investigation and certification of the representative that reflected the unfettered choice of the employees.")
15
To indicate opposition to representation by any union, an employee has to withhold casting his or her ballot
16
It should be noted that in reasoning thus, the Court stated that "[i]n this connection" it was significant that the Act did not provide for closed shops and that, accordingly, workers in minority unions and unorganized workers were implicated in the issue. The Act was amended in 1951 (64 Stat. 1238) to allow such closed shops, under 45 U.S.C. § 152, Eleventh. So some question exists about whether the result, if reached by the Court today, would be the same. See Burley, 327 U.S. at 667, 66 S.Ct. at 724 (Frankfurter, J., dissenting from modified opinion). We do not think, however, that this in any way diminishes the applicability of the quoted language to the decision here
17
The history of union security in the railway industry is marked first, by a strong and long-standing tradition of voluntary unionism on the part of the standard rail unions, second, by the declarations in 1934 of a congressional policy of complete freedom of choice of employers to join or not to join a union
International Association of Machinists v. Street, 367 U.S. at 750, 81 S.Ct. at 1790.
18
Upon IICC's ignoring the Board's certification, the Board authorized the union to commence unilateral action against IICC, including strikes and picketing, thereby running directly counter to what it so persistently espouses as its sole duty under the Act, the prevention of work stoppages
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IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
DWAYNE HILL AND DONNA HILL, : No. 18 EM 2019
:
Petitioners :
:
:
v. :
:
:
COMMONWEALTH OF PENNSYLVANIA, :
GOVERNOR AND THE PENNSYLVANIA :
DEPT. OF CORRECTIONS, :
SECRETARY, :
:
Respondents
ORDER
PER CURIAM
AND NOW, this 29th day of May, 2019, the Petition for Review is DENIED.
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729 F.2d 1466
Rosenv.Biscayne Yacht
NO. 82-5956
United States Court of Appeals,eleventh Circuit.
MAR 20, 1984
1
Appeal From: S.D.Fla.
2
DISMISSED.
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208 Cal.App.2d 582 (1962)
ARTHUR LEWIS, Plaintiff and Respondent,
v.
PROTECTIVE SECURITY LIFE INSURANCE COMPANY, Defendant and Appellant.
Civ. No. 25785.
California Court of Appeals. Second Dist., Div. Four.
Oct. 16, 1962
Wadsworth, Fraser & McClung and Robert H. Dahl for Defendant and Appellant.
Robert E. Krause for Plaintiff and Respondent.
BURKE, P. J.
This is an action for damages by plaintiff Arthur Lewis (Lewis) for $10,625 for breach of a written contract of employment with defendant Protective Security *583 Life Insurance Company (Protective). Protective counterclaimed for $24,279 for expense money allegedly withdrawn from the company's funds by Lewis. The case was tried without a jury and judgment was rendered in favor of the plaintiff for $10,535 plus interest. The court ruled against the defendant on its counterclaim. Protective appeals from the judgment.
The trial court found that Protective was formed largely through the efforts of Lewis who personally advanced all or a substantial part of the costs of incorporation; that it was agreed by the incorporators and subsequent members of the board of directors that Lewis be and he was fully reimbursed for such expenses and that the amount paid him represented the amount which was owing to him; that the amount paid was approved by Protective and the Insurance Commissioner of the State of California; that the repayment of the total of these advances was subsequently approved and ratified by the corporation.
With reference to the claimed improper withdrawal by Lewis of expenses aggregating $24,279, the court found that there was no merit in Protective's counterclaim; that Lewis' expense accounts were filed regularly, monthly and were subject to and under the control of Protective's auditors for action or inaction; and that Lewis was properly credited or reimbursed therefor. The court further found that Protective's board of directors chose to relieve Lewis of the presidency of the corporation, which was its privilege, and then saw fit to enter into a new written contract of employment of Lewis as executive vice president and director of agencies. The latter contract also gave Lewis authority to incur reasonable expenses for promoting the business of the company, including entertainment, travel and similar items plus vacation and sick leave. The contract of employment was drawn by the chief counsel of the corporation and was approved by the board of directors.
On May 21, 1959, Lewis wrote a written memorandum to the man who succeeded him as president of Protective advising him that he was taking his sick leave and of necessity his vacation pay, for surgery, commencing June 8, 1959. Lewis' employment was terminated by letter from Protective June 11, 1959, "for legal cause" while Lewis was in the hospital for surgery.
On appeal Protective contends that Lewis' refusal to account for the expense funds for which Protective counterclaimed *584 and his disparagement of Protective's officers and general conduct constituted sufficient legal cause for his discharge. As indicated, the trial court found that there was no merit to this contention.
Protective contends that Lewis was not entitled to damages during the period he served as president of another insurance company where he was prevented from recovering compensation by his own fraud. The trial court permitted Protective wide latitude in exploring any factual basis for these contentions, and while there was some conflict in such evidence the court resolved the conflict against Protective.
Protective also contends that Lewis was not entitled to damages after he was offered other employment. A great deal of testimony was taken concerning Lewis' efforts to secure other employment and his reasons for refusing to accept employment in the several instances where tentative offers were made to him. In this respect the court specifically found "... that Plaintiff did make an honest effort to find similar employment in the insurance field of a character substantially similar ..." to Lewis' employment by Protective. The court further found that Lewis had received $90 for unemployment insurance, and in the judgment gave credit to Protective for this amount against the unpaid salary due him. The court fixed Lewis' damages in the amount of the salary agreed upon less the amount earned or that Lewis "might have earned in other employment."
We have reviewed the entire transcript of this four-day trial and have concluded that the findings of fact are fully supported by substantial evidence. [1] It is axiomatic that the power of a reviewing court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted that will support the trial court's findings. (Baines v. Zuieback, 84 Cal.App.2d 483, 488 [191 P.2d 67].)
Judgment is affirmed.
Jefferson, J., and Ford, J., [fn. *] concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
AUGUST 9, 2010
No. 09-14359 JOHN LEY
________________________ CLERK
D.C. Docket No. 08-20198-CV-CMA
WORLD HOLDINGS, LLC,
a Florida Limited Liability Company,
Plaintiff-Appellee,
versus
FEDERAL REPUBLIC OF GERMANY,
a foreign state,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 9, 2010)
Before CARNES, ANDERSON and STAHL,* Circuit Judges.
*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
STAHL, Circuit Judge:
This case arises from efforts by Plaintiff-Appellee, World Holdings,
LLC ("World Holdings"), to obtain payment on certain bonds issued by Appellant,
the Federal Republic of Germany ("Germany"). Germany now appeals the denial
of its motion to dismiss for lack of subject matter jurisdiction. After a careful
review, we affirm.
I. Facts and Background1
In 1924, Germany offered for subscription in the United States $110
million of bearer bonds, called "Dawes Bonds," which were listed on the New
York Stock Exchange and payable in U.S. gold dollars in New York City at the
offering fiscal agent in the United States. In 1930, Germany offered for
subscription in the United States $98.25 million of a second type of bearer bond,
called "Young Bonds." The Young Bonds were also listed on the New York Stock
Exchange and payable in New York City.
Both the Dawes Bonds and the Young Bonds were backed by the full
faith and credit of Germany and required Germany to maintain sinking funds from
1
As when reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, we
construe the complaint in the light most favorable to the plaintiff and accept all well-pled facts
alleged in the complaint as true. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.
2009).
2
various revenue sources. According to World Holdings, Germany discontinued
payments to the sinking funds in June 1933. By July 1934, Germany had ceased
making interest payments on both the Young Bonds and the Dawes Bonds.
Though Germany was in default of its obligations under the Bonds, the outbreak
of World War II made impossible any demands for payment or pursuit of remedies
under the Bonds.
Following the war, Germany affirmed its pre-war liabilities, including
the Dawes and Young Bonds. A payment plan was negotiated at the Conference
on German External Debts in London, and on February 27, 1953, Germany, the
United States, and seventeen other nations signed the London Debt Agreement
("LDA"),2 which resulted in a proposed settlement of most of Germany's pre-
World War II debts, including the Bonds.3 Also in 1953, a series of measures
were enacted relating to the London Debt Agreement. One of those measures is
the Agreement Between the United States of America and the Federal Republic of
2
Agreement on German External Debts, Feb. 27, 1953, 4 U.S.T. 443. World Holdings
states that the United States and Germany signed the LDA along with fifteen other nations, but
we take judicial notice of the statement in the LDA's preamble that seventeen other nations
signed the Agreement. Id., pmbl., para. 1.
3
According to World Holdings, bondholders could decline to accept the offer of
settlement under the London Debt Agreement. World Holdings admits, and Germany agrees,
that World Holdings did not accept the terms of the LDA. According to World Holdings, the
LDA does not provide clear treatment for non-accepting bondholders like itself.
3
Germany Regarding Certain Matters Arising from the Validation of German
Dollar Bonds (the "1953 Treaty"), Apr. 1, 1953, 4 U.S.T. 885.
In the 1953 Treaty, the United States and Germany "agreed that it is
in their common interest to provide for the determination of the validity of German
dollar bonds in view of the possibility that a large number of such bonds may have
been unlawfully acquired during hostilities in Germany or soon thereafter." 4
U.S.T. 885, pmbl., para. 2. Another agreement signed in conjunction with the
LDA, the Agreement Between the Government of the United States of America
and the Government of the Federal Republic of Germany Regarding the Validation
of Dollar Bonds of German Issue (the "Agreement on Validation Procedures"),
Feb. 27, 1953, 4 U.S.T. 797, provided the procedures by which a bondholder
might validate his bonds. The 1953 Treaty explicitly references the Agreement on
Validation Procedures and provides:
No bond, coupon, dividend warrant, renewal certificate, subscription
warrant or other secondary instrument . . . shall be enforceable unless
and until it shall be validated either by the Board for the Validation of
German Bonds in the United States established by the Agreement on
Validation Procedures, or by the authorities competent for that purpose
in the Federal Republic.
4 U.S.T. 885, art. II.
4
In order for a bondholder to satisfy the validation requirement of the
1953 Treaty, he must show, by reference to evidence, that his Bonds were held
outside Germany on January 1, 1945. According to World Holdings, the
validation requirement came about due to a "stolen bond theory," as described in
Abrey v. Reusch, 153 F. Supp. 337 (S.D.N.Y. 1957):
After the First World War, and principally between 1924 and
1930, a large number of bearer Dollar Bonds were sold by German
enterprises. . . . Prior to the outbreak of the Second World War, many of
these Dollar Bonds had been repurchased and reacquired by the issuers
for eventual retirement, and later submitted to meet sinking fund and
amortization requirements. Such reacquired bonds were retained in
Germany and no longer represented valid obligations.
During the Second World War, it was impossible to present such
bonds to the American trustees or paying agents for cancellation. As a
consequence, large numbers of these uncancelled bearer Dollar Bonds,
in negotiable form, were held in the vaults of German banks.
After the surrender of Germany, Russian occupation forces seized
the uncancelled, negotiable Dollar Bonds which they found in the
German bank vaults within the area of their control. The face amount
of such bonds has been estimated at $350,000,000. These looted bonds
were returned to circulation by the Russians.
At the same time, other German Dollar Bonds, amounting to
about $250,000,000, were in the legitimate possession of their bona fide
purchasers. There was thus a real possibility that the eventual holders
of the looted bonds would share the available assets (limited available
foreign exchange) of the German obligors equally with the legitimate
bondholders, a large number of whom were nationals of the United
States. Moreover, the free and open trading in the United States of all
German Dollar Bonds was impeded by the uncertainties arising from the
situation described above.
Id. at 339.
5
World Holdings currently owns or controls a significant number of
Dawes and Young Bonds in the original principal amount of $1,000 and $100
denominations. In December 2007, World Holdings demanded payment of its
Bonds in a letter sent to Angela Merkel, Chancellor of Germany, and several
ministers of Germany; Germany did not respond.
Germany has maintained that the Bonds must be submitted for
validation before they can be paid. World Holdings states that no Validation
Board is currently in existence.4 World Holdings further claims that it is not
subject to the validation requirement.5
World Holdings filed this action on January 23, 2008. In its
Amended Complaint, World Holdings charges Germany with breach of contract
based on Germany's alleged default of its obligation to pay the outstanding
principal and accrued interest on World Holdings' Dawes and Young Bonds.
Germany moved to dismiss for lack of subject matter jurisdiction on
the ground that World Holdings' failure to register its bonds and submit them for
validation is fatal to its claims. Specifically, Germany argued that the 1953 Treaty
4
Germany, for its part, maintains that such an authority (the "Examining Authority") has
existed in Germany without interruption since 1952 and that World Holdings has not contacted
the Examining Authority with any request to validate its bonds.
5
World Holdings has argued below that those who did not accept the terms of the LDA
need not validate their bonds.
6
precluded an enforcement action in United States courts on bonds that have not
been validated.
The district court denied the motion, finding that it had subject matter
jurisdiction over the action under the commercial-activity exception to the Foreign
Sovereign Immunities Act ("FSIA" or the "Act"), 28 U.S.C. § 1602, et seq. This
appeal followed.6
II. Analysis
A.
We review de novo the district court's decision to deny the motion to
dismiss for lack of subject matter jurisdiction. Sinaltrainal, 578 F.3d at 1260.
B.
The FSIA, enacted in 1976, years after the 1953 Treaty, "establishes a
comprehensive framework for determining whether a court in this country, state or
federal, may exercise jurisdiction over a foreign state." Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 610 (1992). Under the Act, a foreign state "shall be
6
We have jurisdiction to hear the appeal. "It is well-settled that a court of appeals has
jurisdiction over interlocutory orders denying claims of immunity under the FSIA." Butler v.
Sukhoi Co., 579 F.3d 1307, 1311 (11th Cir. 2009) (citing O'Bryan v. Holy See, 556 F.3d 361,
372 (6th Cir. 2009)). Germany argued below that it is, in effect, immune from suit under the
FSIA and the 1953 Treaty, as the Act is subject to the terms of the 1953 Treaty. Thus, we have
jurisdiction over Germany's assertion of sovereign immunity under the 1953 Treaty (pursuant to
the FSIA's "treaty exception") despite the lack of a final judgment in this case. Id.
7
immune from the jurisdiction of the courts of the United States and of the States"
unless one of several statutorily defined exceptions applies. Id. at 610-11
(emphasis in original). As the Supreme Court has held, "the FSIA [is] the sole
basis for obtaining jurisdiction over a foreign state in our courts." Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989).
Among the FSIA's exceptions to immunity is the commercial-activity
exception of section 1605(a)(2), which provides that a foreign state shall not be
immune from suit in any case
in which the action is based upon a commercial activity carried on in the
United States by the foreign state; or upon an act performed in the
United States in connection with a commercial activity of the foreign
state elsewhere; or upon an act outside the territory of the United States
in connection with a commercial activity of the foreign state elsewhere
and that act causes a direct effect in the United States.
28 U.S.C. § 1605(a)(2). Germany concedes that its issuance and sale of bonds in
the United States brings it within the commercial-activity exception to the FSIA's
grant of immunity.
Despite the application of this exception, Germany argues that it is
nonetheless immune from suit. The FSIA was adopted "[s]ubject to existing
international agreements to which the United States [was] a party at the time of
8
[the FSIA's] enactment." 28 U.S.C. § 1604.7 The "subject to" clause, to which we
will refer as the "treaty exception," "applies when international agreements
'expressly conflic[t]' with the immunity provisions of the FSIA." Amerada Hess,
488 U.S. at 442 (quoting H.R. Rep. No. 94-1487, at 17 (1976), reprinted in 1976
U.S.C.C.A.N. 6604, 6616) (alteration in original).8 If there is an express conflict
between the FSIA and such an agreement regarding the amenability of a
contracting state to suit in the United States courts, the international agreement
prevails. See Moore v. United Kingdom, 384 F.3d 1079, 1085 (9th Cir. 2004); see
also H.R. Rep. No. 94-1487, at 17.
7
The full text of section 1604 provides:
Subject to existing international agreements to which the United States is a party
at the time of enactment of this Act a foreign state shall be immune from the
jurisdiction of the courts of the United States and of the States except as provided
in sections 1605 to 1607 of this chapter.
28 U.S.C. § 1604.
8
We need not decide whether the "subject to" language applies only to abrogate immunity
where it may otherwise exist under the FSIA, or whether an existing international agreement may
alternatively preserve a foreign sovereign's immunity from the jurisdiction of United States
courts where the foreign sovereign's conduct otherwise falls under an exception to immunity in
the FSIA. See World Holdings, LLC v. Federal Republic of Germany, 08-cv-20198-CMA, Dkt.
# 139, at 10 n.11. For the purposes of this case, we presume that it may, because even assuming
that the commercial-activity exception of section 1605 is "subject to" existing international
agreements, the 1953 Treaty does not expressly conflict with the commercial-activity exception,
and thus does not preserve Germany's immunity here.
9
The international agreement to which Germany points is the 1953
Treaty, adopted many years prior to the enactment of the FSIA. Article II of the
treaty states:
No bond, coupon, dividend warrant, renewal certificate, subscription
warrant or other secondary instrument referred to in the first sentence of
Article I above shall be enforceable unless and until it shall be validated
either by the Board for the Validation of German Bonds in the United
States established by the Agreement on Validation Procedures, or by the
authorities competent for that purpose in the Federal Republic.
4 U.S.T. 885, art. II (emphasis added). Our task is to determine whether the 1953
Treaty expressly conflicts with the immunity provisions of the FSIA, specifically,
the commercial-activity exception which serves to abrogate Germany's immunity.
In so doing, we look to Amerada Hess for guidance. We note at the
outset that Amerada Hess presented a slightly different question than this case.
There, the Court had found that none of the exceptions enumerated in section 1605
applied to abrogate Argentina's sovereign immunity. Amerada Hess, 488 U.S. at
439. Thus, when considering the treaty exception, the Court was evaluating the
plaintiff's claim that the "subject to" language extended jurisdiction where it
otherwise did not exist. In finding that it did not, the Court explained that the
treaties at issue did not "create private rights of action for foreign corporations to
recover compensation from foreign states in United States courts." Id. at 442.
10
Rather, they "only set forth substantive rules of conduct and state[d] that
compensation shall be paid for certain wrongs." Id. In other words, the treaties at
issue did not expressly conflict with the FSIA because they did not speak to the
issue of sovereign immunity.
Here, as the district court found, Article II is silent on the question of
immunity. Germany would have us read Article II to say that "a plaintiff cannot
bring an action in the courts of the United States to enforce its rights under its
bonds unless and until it has validated its bonds," but that meaning is not apparent
from the language of the treaty.9 Though Article II states that no bond "shall be
enforceable unless and until it shall be validated," that does not necessarily mean
that a plaintiff may not bring a legal action in the United States courts to seek
enforcement of a bond that has not been validated. In the absence of such an
express conflict, we find that the "treaty exception" does not apply.
9
Interestingly, the Second Circuit in a very recent opinion rejected Germany's argument
that the commercial-activity exception would not abrogate its immunity when the plaintiff
bondholder had failed to comply with the LDA's validation procedures. The court stated:
We are unpersuaded that non-compliance with the validation procedures
undermines the applicability of the commercial activity exception to the FSIA.
The issue of whether [the plaintiff] complied with the validation procedures does
not touch upon any of the requirements of the commercial activity exception,
which is concerned with the conduct of the foreign state and not the allegedly
aggrieved party. . . . Taking up the validation issue at the jurisdictional stage
would thus be premature.
Mortimer Off Shore Services, Ltd. v. Federal Republic of Germany, --- F.3d ----, 2010 WL
2891069, at *9 (2d Cir. Jul. 26, 2010).
11
Germany also points us to the Preamble of the 1953 Treaty,10 which
states, in part:
[T]he United States and the Federal Republic agree that further measures
are required to permit debtors and creditors to proceed to the orderly
settlement of the obligations arising from German dollar bonds with
confidence in the stability of the procedures regarding validation and
with assurance that claims prejudicial to such settlement will not be
asserted on the basis of bonds which were unlawfully acquired.
4 U.S.T. 885, pmbl., para. 5 (emphasis added). While this portion of the preamble
amplifies the language of Article II that "[n]o bond . . . shall be enforceable unless
and until it shall be validated," like Article II, it does not specifically address the
issue of immunity from suit in United States courts. Following the reasoning of
Amerada Hess, this language is, in effect, "stat[ing] that compensation shall [not]
be paid" for certain bonds. See id., 488 U.S. at 442. It is not explicitly expressing
an intent to deny claimants access to United States courts to determine whether
their bonds are enforceable. Again, as Amerada Hess requires, unless a treaty
expressly conflicts with the FSIA's immunity provisions, the FSIA controls, and
there is no express conflict here.
10
The language of a treaty must be read in context in light of the treaty's object and
purpose, see In re Commissioner's Subpoenas, 325 F.3d 1287, 1294 (11th Cir. 2003) (abrogated,
in part, on other grounds, by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 253
(2004)), and the "context" of a treaty includes its preamble. Gandara v. Bennett, 528 F.3d 823,
827 (11th Cir. 2008).
12
Because we find that the plain language of the 1953 Treaty does not
expressly conflict with the FSIA, we do not, and need not, consider the legislative
history offered by Germany in support of its position.11
III. Conclusion
As we find that the treaty exception does not apply, and the parties
have agreed that the commercial-activity exception does apply, we find that
11
We note that the legislative history that Germany cites is taken from a "Message from
the President of the United States Transmitting" the LDA and the 1953 Treaty, among others, for
ratification to the Senate ("Message"). The portion of the Message cited by Germany is
contained in "Enclosure 7(d)" ("Summary of Validation Law and Implementing Agreements"),
appended to a letter from Secretary of State John Foster Dulles to President Eisenhower
discussing the agreements submitted for ratification. Germany has argued that the Message
reflects the State Department's (and Executive Branch's) interpretation of the 1953 Treaty, and as
such is entitled to "great weight." See Sanchez-Llamas v. Oregon, 548 U.S. 331, 355 (2006)
(quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)). But the Supreme Court has never
instructed that a court give "great weight" to the State Department's or Executive's interpretation
when the court's singular task is to determine whether a treaty expressly conflicts with the FSIA.
And as we can conclude from the plain language of the 1953 Treaty, read in context, that there is
no express conflict, we need not resort to extraneous sources. See In re: Commissioner's
Subpoenas, 325 F.3d at 1294 (Only "if the treaty text is ambiguous when read in context in light
of its object and purpose, then extraneous sources may be consulted to elucidate the parties'
intent from the ambiguous text.") (citing Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134
(1989)).
Moreover, even if we were to consider the Message in our analysis, we find that when it
is considered in its entirety, it is inconclusive as to the view of the State Department on the rights
of bondholders who did not accept the LDA's offer of settlement to resort to United States courts.
See Enclosure 7(a) ("Summary of Agreement on German External Debts and Its Annexes"), at
204. Thus, the Message does not alter our conclusion that the 1953 Treaty does not expressly
conflict with the immunity provisions of the FSIA. Cf. Sumitomo Shoji America, Inc. v.
Avagliano, 457 U.S. 176, 184-85 n.10 (1982) (giving "great weight" to the position of the State
Department after noting that "[h]owever ambiguous the State Department position may have
been previously," the Department's current interpretation was "beyond dispute" in light of an
amicus brief filed in the case by the United States).
13
Germany is not immune from suit and affirm the district court's denial of
Germany's motion to dismiss for lack of subject matter jurisdiction.12
We advise that this is not a decision as to whether World Holdings'
bonds are, in fact, enforceable. We hold merely that the district court has the
authority to decide that issue. The court may yet determine that World Holdings'
failure to comply with the validation requirement of Article II renders its bonds
unenforceable.13 And, in fact, we expect that the district court will decide the
issue of the applicability of Article II's validation requirement to World Holdings'
bonds at the earliest possible opportunity.
AFFIRMED.
12
This result means that we need not consider World Holdings' argument that Germany
waived its affirmative defense of immunity by failing to specially plead immunity in its Answer.
Alternatively, we do not consider the argument because it was raised for the first time on appeal.
See Calzadilla v. Banco Latino Internacional, 413 F.3d 1285, 1287 (11th Cir. 2005).
13
See, e.g., Mortimer Off Shore Services, Ltd. v. Federal Republic of Germany, No. 05
Civ. 10669(GEL), 2007 WL 2822214, at *6, *11 (S.D.N.Y. Sept. 27, 2007) (aff'd by --- F.3d ----,
2010 WL 2891069, at *9 (2d Cir. Jul. 26, 2010)). In Mortimer, the district court held that the
FSIA's commercial-activity exception applied to abrogate Germany's immunity, but then held
that plaintiff's bonds were unenforceable because of a failure to comply with the bond validation
procedures.
14
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981 F.Supp. 1271 (1997)
Robert BONCOURI, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.
No. 4:97CV1436 TCM.
United States District Court, E.D. Missouri, Eastern Division.
October 10, 1997.
David L. Blunt, Blunt and Associates, Edwardsville, IL, for Plaintiff.
Dan H. Ball, Thompson Coburn, St. Louis, MO, for Defendant.
MEMORANDUM AND ORDER
MUMMERT, United States Magistrate Judge.
This matter is before the Court[1] on the motion of Robert Boncouri ("Plaintiff") to remand his case to the state court from which it was removed [Doc. 10] and on his motion for a protective order [Doc. 0, 7-8-97]. Union Pacific Railroad Company ("Defendant") opposes both motions.
*1272 Background
Plaintiff initiated this action by filing a one-count complaint in the Circuit Court for the City of St. Louis seeking redress under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60, for injuries he sustained while working for Defendant. Plaintiff alleged that he was injured when a chain saw he was using to cut a tree struck his right leg and that the injury was caused by Defendant's negligent failure to provide him with: (i) a safe workplace; (ii) a safe machine to complete the task; and (iii) a safe method for cutting trees. Contemporaneously with his complaint, Plaintiff filed a motion for protective order, seeking an order prohibiting Defendant from internally investigating his accident and from initiating or conducting any disciplinary proceedings against him as a result of the accident. Plaintiff argued that Defendant is attempting to (i) use its work rules to obtain information relevant to the lawsuit without being impeded by discovery rules or by opposing counsel, and (ii) limit its exposure to liability in the court action by possibly discharging Plaintiff and thereby eliminating his future wages as a component of damages.
Arguing that the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-188, is the exclusive remedy for the relief sought by Plaintiff in his motion for a protective order, Defendant removed the case to the federal district court. Defendant also filed a memorandum opposing the motion, specifically arguing that the dispute outlined in the motion is a "minor dispute" under the RLA and alleging that the investigation of Plaintiff and two of his co-workers began four days after the accident and was initiated in compliance with a collective bargaining agreement between Defendant and Plaintiff's union.
Plaintiff moves to remand, arguing, inter alia, that the motion for a protective order is irrelevant to the determining question of whether his complaint is removable on its face.
Discussion
Motion for Protective Order. The RLA was enacted to "promote stability and labor-management relations by providing a comprehensive framework for resolving labor disputes." Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 2243, 129 L.Ed.2d 203 (1994) (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985)). Labor disputes about rates of pay, rules, or working conditions are deemed "major" disputes. See Id. at 252-54, 114 S.Ct. at 2244. Disputes arising from grievances or from the interpretation or application of agreements on rates of pay, rules, or working conditions are deemed "minor" disputes. See Id. In other words, "minor disputes" are "those that are grounded in the collective-bargaining agreement." Id. at 256, 114 S.Ct. at 2245.
There is a rebuttable presumption that disputes between a railroad and its union employees are minor and, therefore, arbitrable under the RLA. See Schiltz v. Burlington Northern R.R., 115 F.3d 1407, 1414 (8th Cir.1997). Thus, if there is a doubt about the appropriate classification of a dispute, the dispute is to be construed as minor. See Id. (citing International Ass'n of Machinists and Aerospace Workers, Dist. Lodge No. 19 v. Soo Line R.R., 850 F.2d 368, 377 (8th Cir.1988) (en banc)).
A similar claim to that made by Plaintiff in his motion was made by railroad employees who filed suit against their railroad-employer alleging that the railroad was conducting investigations for the purpose of deterring employees' FELA suits. The Seventh Circuit Court of Appeals construed the claim as one relating to the collective bargaining agreement and, consequently, as one falling within the ambit of the RLA. See Bielicke v. Terminal R.R. Ass'n, 30 F.3d 877, 878 (7th Cir.1994). "One cannot determine whether [the railroad] conducted the investigations for legitimate purposes under the collective bargaining agreements or if they abused the investigation procedures allowed by the collective bargaining agreements (e.g., by conducting impermissible investigations under the guise of policy) without focusing the case on the collective bargaining agreements themselves. As such, the proper vehicle for pursuing the claim is the [RLA]." Id. See also Calvert v. Trans World Airlines, Inc., 959 F.2d 698, 700 (8th Cir.1992) (holding that plaintiff's tort claim against his employer-airline *1273 premised on allegations that employer was submitting him to medical testing for improper reasons arose out of the collective bargaining agreement and, therefore, the action was prohibited by the RLA).
The dispute that is the subject of Plaintiff's motion for a protective order is clearly a "minor dispute." Minor disputes may only be resolved through the RLA mechanism. See Id. at 252-54, 114 S.Ct. at 2244. Accordingly, the proper procedures for Plaintiff to pursue the claims in his motion are those forth in the RLA. His motion for protective order will be denied with prejudice.
Motion to Remand. "In 1906, Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employers or their fellow employees." Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987). "As far as a worker's right to damages under FELA is concerned, Congress' enactment of the RLA has had no effect." Id. at 567, 107 S.Ct. at 1416. A FELA action may be filed in federal court or in state court. See 45 U.S.C. § 56. Once filed in state court, however, a FELA claim may not be removed to federal court. See 28 U.S.C. § 1445(a).
Defendant argues that this case became removable pursuant to 28 U.S.C. § 1441(c) upon Plaintiff filing his motion for protective order. The motion for protective order is no longer at issue. Consequently, only a FELA action remains. The Supreme Court has construed the statutory provision for concurrent state and federal jurisdiction and the statutory prohibition against removing FELA cases from state to federal court as evidence of Congress's intention to protect plaintiffs' rights to bring their FELA actions in state court. See Burnett v. New York Central R.R. Co., 380 U.S. 424, 434, 85 S.Ct. 1050, 1057-58, 13 L.Ed.2d 941 (1965). Thus, the Court finds that it lacks jurisdiction over this FELA action. See Williamson v. Missouri Pacific R.R. Co., et al., 4:96CV1113 ERW (E.D.Mo.1996); Downing v. Missouri Pacific R.R.Co., 4:96CV0284 LOD (E.D.Mo. 1996).
Accordingly, for the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiff's Motion for a Protective Order is DENIED with prejudice. [Doc. 0]
IT IS FURTHER ORDERED that Plaintiff's Motion to Remand is GRANTED. [Doc. 10]
NOTES
[1] The parties have consented to the undersigned United States Magistrate Judge entering a final disposition in this case. See 28 U.S.C. § 636(c).
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20 Cal.3d 10 (1977)
569 P.2d 125
141 Cal. Rptr. 20
THE PEOPLE, Plaintiff and Respondent,
v.
PACIFIC LAND RESEARCH COMPANY et al., Defendants and Appellants.
Docket No. L.A. 30721.
Supreme Court of California.
September 29, 1977.
*13 COUNSEL
Lipofsky & Schulman, Inc., Louis A. Lipofsky and William S. Brunsten for Defendants and Appellants.
Gibson, Dunn & Crutcher, Richard Chernick and Philip W. Boesch, Jr., as Amici Curiae on behalf of Defendants and Appellants.
Evelle J. Younger, Attorney General, Arthur C. de Goede, Assistant Attorney General, Herschel T. Elkins, Sanford H. Feldman, Dennis M. Klimmek, Deputy Attorneys General, Albert M. Leddy, District Attorney, Ronald L. Shumaker and H. Dennis Beaver, Deputy District Attorneys, for Plaintiff and Respondent.
Edwin L. Miller, Jr., District Attorney (San Diego), M. James Lorenz, Charles R. Hayes, Robert C. Fellmeth, Deputy District Attorneys, *14 Richard A. Elbrecht, Richard G. Fathy, Steven M. Fleisher and Joseph Garcia as Amici Curiae on behalf of Plaintiff and Respondent.
OPINION
MOSK, J.
The Attorney General and the District Attorney of Kern County brought an action in the name of the People, alleging that defendants, in making sales of land to the public, violated various provisions of law by subdividing without notifying the Real Estate Commissioner or receiving his permission to subdivide, in violation of the Subdivided Lands Act (Bus. & Prof. Code, § 11000 et seq.)[1] and by making misrepresentations in the sale of such land (§ 17500),[2] and that this conduct constituted unfair competition (Civ. Code, § 3369).[3] The complaint sought not only injunctive relief (§ 17535)[4] and the imposition of civil penalties (§ 17536; Civ. Code, § 3370.1)[5] but restitution on behalf of the vendees who had purchased the land. The recovery of restitution is authorized by section 17535.
*15 The trial court granted a preliminary injunction prohibiting defendants from making misrepresentations in the sale of the land referred to in the complaint, and from spending or removing from California any monies received for sales which violated the Subdivided Lands Act (hereinafter the act). On this appeal, defendants contend that the inclusion in the complaint of a prayer for restitution to the vendees requires that the action be treated as a class suit; thus all the procedural safeguards, such as notice to the class, must be complied with to support the injunction. They assert also that there was insufficient evidence to justify the injunction and that the terms thereof are so vague that defendants were deprived of due process in that they cannot know what conduct is prohibited.
The complaint alleges that defendants are the owners or agents of the owners of land in Kern and Riverside Counties, and that they solicited purchasers for the land by false and misleading statements regarding such matters as the investment potential of the property. All the defendants are alleged to be agents of one another.
A separate cause of action alleges that some of the defendants purchased certain property identified as sections 14, 24 and 26 in a specified area of Kern County, and divided the land in a manner designed to evade the act. It is alleged that the property was purchased from three of the defendants who first divided it among themselves and then sold it to other defendants for a nominal sum; that the grantees in turn further divided the property among themselves, and sold lots to more than 50 purchasers. These activities, it is averred, created subdivisions as defined in section 11000, and defendants failed to comply with the provisions of the Business and Professions Code relating to subdivisions. Other transactions in Kern County and in Riverside County were also alleged to violate the act.
The complaint sought a temporary restraining order, preliminary and permanent injunctions, and a civil penalty of $2,500 for each violation. The trial court issued an order to show cause and a preliminary injunction, based upon the pleadings and the declarations filed by the People in support of their complaint. The injunction restrains defendants from violating the act and the other provisions referred to above. Paragraph 4 thereof prohibits defendants from "[s]pending, transferring, *16 encumbering, or removing from California any monies received in payment for lands sold under contracts or agreements of sale where said land was sold without complying with the requirements of the Subdivided Land Law...."
Defendants denied the allegations of the complaint in their answer, and at the hearing on the order to show cause they denied violating any of the provisions to which the injunction relates. They assert on this appeal that the restraints placed upon them by paragraph 4 are invalid.
I
(1a) We consider first whether the injunction is invalid because an action brought by the People under section 17535 is in the nature of a class action to the extent that restitution is sought for the victims of defendants' alleged illegal activity, and therefore defendants are entitled to the same procedural safeguards as in a class action brought by a private party. The issuance of the injunction was based upon a preliminary determination of the merits of the People's action, and defendants assert they were deprived of due process of law because that determination was made before the vendees on whose behalf restitution was sought were notified of the action and required to elect whether or not to join therein. Defendants rely on Home Savings & Loan Assn. v. Superior Court (1975) 42 Cal. App.3d 1006 [117 Cal. Rptr. 485] (Home I), Home Savings & Loan Assn. v. Superior Court (1976) 54 Cal. App.3d 208 [126 Cal. Rptr. 511] (Home II), and Eisen v. Carlisle & Jacquelin (1974) 417 U.S. 156 [40 L.Ed.2d 732, 94 S.Ct. 2140].
Home I and Home II hold that a defendant in a class action has a due process right to secure a determination of the issues relating to the suitability of the action as a class matter as well as the composition of the class and the form of notice to the members, prior to determination of the merits of the action. The rationale of this rule is: unless a decision on the merits is postponed until after the class issues are decided, a defendant is subject to "one-way intervention," which would allow potential class members to elect whether to join in the action depending upon the outcome of the decision on the merits. Thus, if the merits were decided favorably to the class, and notice followed such determination, most class members would join in the action, whereas they would decline if the determination was against the class.
*17 From a defendant's viewpoint, this is said to result in "an open-ended lawsuit that cannot be defeated, cannot be settled, and cannot be adjudicated." (Home I, supra, 42 Cal. App.3d at p. 1011.) Failure to require notification of the class before a decision on the merits prevents a binding adjudication against the class because members of the class who were not notified are not barred by the determination in the defendant's favor since they were not parties. On the other hand, a defendant who loses an action brought by individual class members may be estopped under the doctrine of collateral estoppel to deny the binding effect of the judgment against him in a subsequent action brought by other class members. Moreover, a defendant is entitled to know, before final determination of the substantive issues in a class action, the full potential consequences and liability that may attach to a judgment against him.
Eisen holds that rule 23 of the Federal Rules of Civil Procedure prohibits a court from inquiring into the merits of a suit for the purpose of deciding which party should bear the cost of notice prior to determining whether a class action may be maintained. Such a procedure, it is held, may result in substantial prejudice to a defendant since it is not accompanied by the traditional safeguards applicable to civil trials.
We assume, for the purposes of the present proceeding, that the reasoning in the foregoing cases is sound. (2) Nevertheless, we do not agree that consumer protection actions brought by the People, seeking injunctive relief, civil penalties and restitution, are the equivalent of class actions brought by private parties, requiring the same safeguards to protect a defendant from multiple suits and other harmful consequences.
An action filed by the People seeking injunctive relief and civil penalties is fundamentally a law enforcement action designed to protect the public and not to benefit private parties. The purpose of injunctive relief is to prevent continued violations of law and to prevent violators from dissipating funds illegally obtained. Civil penalties, which are paid to the government (§ 17536, subds. (b) and (c); Civ. Code, § 3370.1) are designed to penalize a defendant for past illegal conduct. The request for restitution on behalf of vendees in such an action is only ancillary to the primary remedies sought for the benefit of the public. (People v. Superior Court (Jayhill) 9 Cal.3d 283, 286 [107 Cal. Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191].) While restitution would benefit the vendees by the return of the money illegally obtained, such repayment is not the primary object of the suit, as it is in most private class actions.
*18 Furthermore, an action by the People lacks the fundamental attributes of a consumer class action filed by a private party. The Attorney General or other governmental official who files the action is ordinarily not a member of the class, his role as a protector of the public may be inconsistent with the welfare of the class so that he could not adequately protect their interests (Civ. Code, § 1781, subd. (b)(4))[6] and the claims and defenses are not typical of the class (Civ. Code, § 1781, subd. (b)(3)).[7]
In spite of these obvious differences between the two types of actions, defendants insist that because the People seek restitution of monies obtained as a result of the allegedly illegal transactions, they are in precisely the same position as a defendant in a class action brought by private individuals when adjudication of the merits occurs before notice to the potential class members. This is, they urge, because the vendees on whose behalf the People seek restitution enjoy the benefits of an adjudication on the merits in their favor by virtue of the issuance of the preliminary injunction, without being bound by an ultimate determination for defendants; thus injunctive relief should not be granted in an action brought by the People if the complaint includes a claim for restitution, unless the class is notified prior to its issuance.
As between the two types of proceedings there is a crucial difference which emanates from the character of the People's lawsuit as a law enforcement action.[8] Whereas a defendant in a class action brought by a private individual may prevent adjudication of the merits under the Home Savings rule prior to a determination of the composition of the class, he does not have similar rights in an action brought by the People under section 17535, even if the complaint does not include a prayer for restitution.
If the Attorney General does not seek restitution in the complaint but confines his prayer for relief to an injunction and civil penalties, there is *19 an inevitable potential of the vendees taking advantage of a preliminary or final determination in their favor. For example, in the present case if the People had not sought restitution there would have been no occasion to notify the vendees of the action. Nevertheless, the trial court could have ordered restitution on its own motion at the conclusion of the action on the merits under section 17535. Alternatively, the vendees could have sought to intervene after the preliminary injunction was issued and a preliminary determination on the merits made, and the trial court could have allowed intervention on the theory that "there is risk their contributions to the venture will be used primarily to pay statutory penalties...." (People v. Superior Court (Good) 17 Cal.3d 732, 737 [131 Cal. Rptr. 800, 552 P.2d 760].)[9] However, the vendees could merely await the outcome of the People's action and seek restitution in a later suit in which the defendants, if they lost in the first action, might be subject to collateral estoppel while the plaintiff-vendees would not be bound by a determination in defendants' favor in that action.
These consequences flow not from any inherent unfairness in the procedures but because the People's action is fundamentally for the benefit of the public even though founded upon the same violations of law which form the basis of the claim for restitution.
Since defendants are subject to substantially identical burdens when the People do not seek restitution on behalf of the vendees in their complaint as where restitution is sought, they suffer no additional hardship because the complaint also contains a prayer for restitution, and they should be afforded no additional advantages.
If we were to hold that the inclusion of a claim for restitution converts the People's action under section 17535 into a class action so that not *20 even a preliminary determination of the merits could be made before compliance with the class action notice requirements, the result would seriously hamper the public interest without affording any substantial benefits to a defendant. In order to avoid the delays inherent in complying with class action procedures, the People might be forced to abandon the claim for restitution whenever immediate injunctive relief was essential to protect consumers against further illegal acts of the defendant. Yet such a course would not provide any significant benefits to a defendant since even in the absence of a prayer for restitution in the People's complaint the vendees could secure a determination on the merits by the means set out above before determining their ultimate method of proceeding.
(1b) There are other reasons why the Home Savings rule is not applicable to an action by the People under sections 17535 and 17536. As we have seen, one basis of that rule is the need for defendants to know prior to final determination of the merits of the action the potential consequences which may attach to an adverse judgment. Presumably, the primary reason they require this information is to assess the resources which should be expended in the defense of the litigation. Here the People seek civil penalties of $2,500 for each violation, which would ordinarily provide a defendant with sufficient incentive to mount a vigorous defense, even if a claim for restitution is not made.
Finally, we observe that if the People, with their vast resources, fail to prevail on the merits of their suit there is little prospect that a defendant will be harassed by subsequent suits instituted by vendees seeking restitution. Various defenses available in an action by private parties may not be raised to defend against an action filed by the People. For example, reliance is not a necessary element of an action for civil penalties and injunctive relief. If, in spite of such an advantage the People fail to prevail on the merits, there is little likelihood that private parties will expend their resources to seek restitution upon the same facts in a subsequent action. In this situation, "renewed harassment is nothing but a remote theoretical possibility." (See Cartt v. Superior Court (1975) 50 Cal. App.3d 960, 969 [124 Cal. Rptr. 376].)[10]
*21 II
(3a) We come, then, to defendants' assertion that the evidence before the trial court was insufficient to justify the injunction. (4) To secure a preliminary injunction the People were required to show, by evidence which would be admissible in open court, that, pending a trial on the merits, defendants should be restrained from exercising the right claimed by them. The purpose of the injunction is to preserve the status quo until a final determination is made upon the merits, and the issue before the court was whether defendants would suffer greater harm from its issuance than the People would suffer from its refusal. In making this assessment, the court was required to determine whether there was a reasonable probability that the People would prevail on the merits. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 526-529 [67 Cal. Rptr. 761, 439 P.2d 889].)
(3b) Defendants contend that the complaint declarations offered by the People, which set forth the alleged misrepresentations, were insufficient to demonstrate that they had violated the act since there was no evidence that they had subdivided land into five parcels.
Section 11000 defines a subdivision as land divided or proposed to be divided into five or more parcels for purposes of sale. Before offering subdivided land for sale, the Real Estate Commissioner must be notified of the intention to sell subdivided land (§ 11010) and a public report obtained (§ 11018), which must be furnished to prospective purchasers (§ 11018.1). Contiguity of the land is not required under section 11000 in order to constitute subdivision, but if the parcels are not contiguous the question whether the land should be treated as one subdivision project depends upon whether the parcels are "grouped in a sufficiently restricted area." (Cal. Admin. Code, tit. 10, § 2803.)
Defendants offer a number of technical objections to the form of the declarations, none of which we find meritorious.[11] They also object to the *22 two principal declarations offered by the People to establish that defendants had subdivided their land. These were made by Glenn Kaufman, a certified public accountant employed by the Department of Justice, and Randall L. Abbott, a planner for the Kern County Planning Division. Defendants challenge these declarations on the grounds that the statements therein constituted hearsay, violated the best evidence rule, and contained inadmissible opinion evidence. Without encumbering this opinion with needless detail, upon analysis we agree that these declarations were inadmissible and that the trial court erred in considering them in issuing the injunction.
Nevertheless, even without the offending declarations, the evidence is sufficient to support the trial court's determination that it was probable the People would demonstrate upon a trial of the merits that defendants had subdivided land in violation of the act. Three purchasers filed affidavits that they had bought land from defendants; two had purchased lots in section 24 and one in section 26. While the two sections are not contiguous, they are joined at one corner. The People assert that these purchases are sufficient to constitute the division of land into five parcels since defendants carved two parcels out of one section and one out of another, and they owned the remainder of the two sections, making five parcels in all.[12]
Whether or not such an arrangement would constitute a subdivision as defined in section 11000 in all circumstances we need not decide. In the present case, however, it is clear that defendants were in the business of selling land, some of the individual defendants were officers common to more than one of the corporate defendants, the two sections in which they had sold lots joined one another at one corner and the sales or solicitations of the purchasers occurred within a few months of one another. There was, therefore, at least strong circumstantial evidence that the remainder of sections 24 and 26 were also intended by defendants for sale. This evidence was sufficient to support an inference that the sale of the lots in the two sections constituted a single project, and the trial court was justified in concluding that the People would probably be able to *23 demonstrate that defendants had violated the act by dividing land into five or more parcels for purposes of sale.[13]
III
(5) Finally, defendants insist that the injunction is so vague that they cannot know what conduct is prohibited. (In re Berry (1968) 68 Cal.2d 137, 155-157 [65 Cal. Rptr. 273, 436 P.2d 273].) They challenge the portion of the injunction which prohibits them from spending or transferring money in payment of land "where said land was sold without complying with the requirements of the Subdivided Land Law...."
Defendants complain that, since the injunction does not describe any specific parcel of land, they cannot determine what land is subject to its terms. However, when the language of the injunction is interpreted in the light of the record (Continental Baking Co. v. Katz, supra, 68 Cal.2d 512, 534), defendants are sufficiently apprised of the land involved. The complaint refers only to land in Kern and Riverside Counties, and it is only sales of land located in those counties to which the injunction relates.[14]
Nor do we find merit in the assertion that it cannot be determined with sufficient certainty what monies may be spent since the ultimate issue in the case is whether defendants violated the act, and until there is a full adjudication on the merits they cannot know whether any sales constituted violations. The issuance of the injunction represents a preliminary determination by the trial court that defendants probably violated the act in making some sales, e.g., the sales to the three purchasers whose affidavits are discussed above. It is within defendants' *24 own knowledge whether they are receiving funds from other purchasers as a result of similar sales.
The order granting the People a preliminary injunction is affirmed.
Tobriner, Acting C.J., Clark, J., Richardson, J., Manuel, J., Sullivan, J.,[*] and Thompson (Homer B.), J.,[] concurred.
NOTES
[1] All references are to the Business and Professions Code, unless otherwise noted. Section 11000 provides in part, "`Subdivided lands' and `subdivision' refer to ... land divided or proposed to be divided for the purpose of sale or lease or financing, whether immediate or future, into five or more lots or parcels...."
[2] Section 17500 provides in part, "It is unlawful for any person ... corporation ... or any employee thereof with intent ... to dispose of real or personal property ... to induce the public to enter into any obligation relating thereto, to make ... before the public in this State, in any newspaper or other publication, or any advertising device ... any statement, concerning such real or personal property ... which is untrue or misleading...."
[3] Section 3369 provides in subdivision 2: "Any person performing or proposing to perform any act of unfair competition within this State may be enjoined in any court of competent jurisdiction." Subdivision 3 of the section defines unfair competition to include any act denounced by sections 17500 through 17535 of the Business and Professions Code or any unlawful business practice.
[4] Section 17535 provides in part, "Any person, corporation ... which violates or proposes to violate this chapter may be enjoined by any court of competent jurisdiction. The court may make ... orders ... which may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of any practice in this chapter declared to be unlawful.
"Actions for injunction under this section may be prosecuted by the Attorney General or any district attorney ... in the name of the people of the State of California upon their own complaint or upon the complaint of ... any person acting for the interests of itself, its members or the general public."
[5] Section 17536, subdivision (a), provides in part, "Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation, which shall be assessed and recovered in a civil action brought in the name of the People of the State of California by the Attorney General or by any district attorney, county counsel, or city attorney...."
Section 3370.1 of the Civil Code provides in part, "Any person who violates any provision of this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each violation ..."
[6] For example, in settlement negotiations the Attorney General might find it advisable to exact a penalty to be paid to the public treasury and to obtain injunctive relief rather than insisting upon restitution for defrauded vendees.
[7] Individual actions are aimed at recovery of money and are usually based upon the theories of fraud or breach of contract. Reliance and actual damages must be shown. In an action by the People, on the other hand, only the violation of statute is necessary to justify injunctive relief and civil penalties.
[8] Defendants correctly point out that section 17535 allows private persons to seek the remedies set forth therein. Our determination here is confined to the rights of defendants in a suit filed by the People under that section.
[9] Although defendants assert that a trial court may not grant restitution without notifying the vendees of the People's action and giving them the opportunity to join therein, we reject this contention. Even in the absence of the specific authorization contained in section 17535, a trial court has the inherent power to order restitution as a form of ancillary relief. (People v. Superior Court (Jayhill), supra, 9 Cal.3d 283, 286.) We know of no authority holding that the exercise of this power has the inevitable effect of converting the People's action into a class action.
We note that, in view of the trial court's power to grant restitution, it cannot be said that intervention by the vendees would enlarge the issues or change the nature of the action filed by the People. In People v. Superior Court (Good), supra, 17 Cal.3d 732, 737, we held, in answer to a contention, that intervention was proper since both the People's complaint and the complaint in intervention by the class sought restitution, but it does not follow that intervention by the vendees would be improper in a case in which the People did not pray for restitution.
[10] In Kugler v. Romain (1971) 58 N.J. 522 [279 A.2d 640], it was held that the Attorney General of New Jersey could bring an action for an injunction and restitution "in the nature of a class action" on behalf of defrauded buyers, utilizing the procedures relating to class actions. Defendants rely upon this language as indicating that class action procedures are applicable in an action by a public officer for restitution on behalf of defrauded vendees. The People point out, however, that the merits of the action were decided in that case prior to notification of the class. In any event, the matter was settled the following year in a New Jersey case in which it was held that the Attorney General was not required to serve notice prior to judgment upon the victims of fraudulent and deceptive practices in whose behalf he sought restitution of funds illegally obtained. (Kugler v. Koscot Interplanetary, Inc. (1972) 120 N.J. Super. 216 [293 A.2d 682, 693].)
[11] For example, defendants complain that the declaration of Mrs. Charles Murphy does not comply with the mandate of section 2015.5 of the Code of Civil Procedure that it state the place of execution and is true under penalty of perjury. Mrs. Murphy's address is immediately below her signature. Moreover, she makes the declaration under penalty of perjury. The declaration substantially complies with section 2015.5. (See Pacific Air Lines, Inc. v. Superior Court (1965) 231 Cal. App.2d 587, 589 [42 Cal. Rptr. 68].)
[12] There was sufficient evidence for the purposes of the preliminary injunction to conclude that defendants owned the remainder of parcels 24 and 26. An officer of several of the corporate defendants admitted that he and other defendants had purchased 640 acres of land, including sections 24 and 26, and defendants did not claim that they did not own the land remaining in those sections after the sales alleged in the complaint were made. The sales were negotiated by individual defendants, who were officers of a corporate defendant or by a representative of one of the corporate defendants.
[13] Defendants make an elaborate argument that if section 11000 is interpreted as applying to divisions of land which result in the creation of five parcels by virtue of the fact that the owner retains some of the land remaining after the sales, the section would be applied to divisions clearly not intended by the Legislature. They reason that, since section 11000 applies to noncontiguous parcels and there are no time limits contained in the section, land situated in separate parts of the state and sold many years apart could be found to constitute a subdivision merely because it is owned by one seller. However, as section 2803 of title 10 of the California Administrative Code makes clear, noncontiguous land is subject to the provisions of the act only if it may reasonably constitute a single subdivision project.
[14] While it is true that the affidavits submitted by the People in support of the injunction refer only to land in Kern County, the People demonstrated the probability that defendants were engaged in violating the act as to some sales in Riverside as well. It was not necessary that each alleged violation be shown before the injunction was issued.
[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
[] Assigned by the Chairperson of the Judicial Council.
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32 A.3d 838 (2011)
COM.
v.
DAVIS.
No. 1468 MDA 2010.
Superior Court of Pennsylvania.
August 18, 2011.
Affirmed.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-07-441 CR
____________________
LARRY JAMES HORTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 18,436
MEMORANDUM OPINION
Larry James Horton appealed from a sentence imposed on January 4, 2006. Horton
filed notice of appeal with the trial court on August 16, 2007, more than ninety days from the
date of sentencing and outside the time allowed for requesting an extension of time for filing
notice of appeal. We did not receive a response to our notice that the appeal had not been
timely perfected.
The Court finds that the notice of appeal was not timely filed. See Tex. R. App. P.
26.2. No motion for extension of time was timely filed pursuant to Tex. R. App. P. 26.3. It
does not appear that appellant obtained an out-of-time appeal from the Court of Criminal
Appeals. The Court finds it is without jurisdiction to entertain this appeal. Accordingly, the
appeal is dismissed for want of jurisdiction.
APPEAL DISMISSED.
_____________________________
STEVE McKEITHEN
Chief Justice
Opinion Delivered October 10, 2007
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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May 22, 2014
JUDGMENT
The Fourteenth Court of Appeals
JOHN WOODS, Appellant
NO. 14-12-00775-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard ON REMAND from the Court of Criminal Appeals
on the transcript of the record of the court below. The record reveals no error in the
judgment. The Court orders the judgment be AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance.
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Appeal Reinstated and Order filed November 1, 2012.
In The
Fourteenth Court of Appeals
____________
NO. 14-12-00832-CV
____________
NABILCO INC. and D. HOUSTON, INC. D/B/A TREASURES, Appellants
V.
THE STATE OF TEXAS and THE CITY OF HOUSTON, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2012-28683
ORDER
On October 19, 2012, appellants filed a supplemental clerk’s record containing a
Notice of Removal of this case to the United States District Court for the Southern
District of Texas. See 28 U.S.C. § 1446(d). Accordingly, on October 25, 2012, this court
abated the appeal until an appropriate order remanding the case to state court is filed.
Appellants filed a copy of the federal court’s October 3, 2012, order remanding the case
to state court, and a copy of the order is contained in the clerk’s record that has now been
filed in this appeal. Accordingly, the appeal is ordered REINSTATED.
The notice of appeal in this case was filed September 10, 2012. To date, our
records show that the filing fee of $175.00 has not been paid. Therefore, the court issues
the following order.
Appellants are ordered to pay the filing fee in the amount of $175.00 to the Clerk
of this court on or before November 12, 2012. See Tex. R. App. P. 5. If appellants fail to
timely pay the filing fee in accordance with this order, the appeal will be dismissed.
PER CURIAM
2
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Case: 18-11302 Document: 00515103874 Page: 1 Date Filed: 09/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11302 FILED
September 4, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOE ROSALES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-55-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Joe Rosales appeals the 360-month sentence imposed following his guilty
plea conviction for conspiracy to possess with the intent to distribute
methamphetamine, urging that his sentence is unreasonable. He challenges
the assessment of two of his ten criminal history points. He also argues that
the district court erroneously converted drug proceeds entirely to
methamphetamine rather than other types of drugs. Finally, he challenges
* 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: 18-11302 Document: 00515103874 Page: 2 Date Filed: 09/04/2019
No. 18-11302
the substantive reasonableness of his sentence arguing that the district court
“failed to give regard to and balance all the relevant sentencing factors,”
resulting in a sentence that was greater than necessary to achieve the
sentencing purposes of 18 U.S.C. § 3553(a).
To the extent Rosales argues that he should not have been assessed two
criminal history points under U.S.S.G. § 4A1.1(d) for committing the instant
offense while serving a sentence of probation, his argument is not well-taken.
Rosales asserts that his probation for his 2014 Texas DWI conviction should
have expired in November 2016 and only remained pending because the State
failed to adjudicate the October 2016 motion to revoke filed in that case
promptly and did not execute the revocation warrant until after he was
arrested on the instant charges. Without the enhancement, his criminal
history score would have been IV rather than V. However, the record
establishes that Rosales began engaging in the instant methamphetamine
conspiracy in August 2016. The August 2016 start date of his offense was well
within the two-year term of probation, predating both the November 2016
expiration date and the October 2016 motion to revoke. Thus, the delay had
no bearing on the assessment of the two criminal history points. See
§ 4A1.1(d). It follows that the district court’s rejection of his request for a
below-guidelines sentence on this ground did not result in an unreasonable
sentence.
Next, Rosales urges that it was “unreasonable” for the district court to
convert $34,929.10 in drug proceeds authorities discovered in his house and
storage units to methamphetamine rather than cocaine or marijuana for
sentencing purposes. He argues that conversion to methamphetamine yields
the highest offense level and that, had the PSR converted the drug proceeds
into either cocaine or marijuana instead, his total offense level would have
been 38 rather than 40.
2
Case: 18-11302 Document: 00515103874 Page: 3 Date Filed: 09/04/2019
No. 18-11302
This court need not address the merits of the claim because, even
assuming arguendo that Rosales is correct and that his total offense level
should have been 38, his resulting guidelines range would have remained
unchanged. See U.S.S.G. Ch. 5, Pt. A. Consequently, any error was harmless;
it also did not affect his substantial rights. See United States v. Garcia-
Gonzalez, 714 F.3d 306, 315 (5th Cir. 2013).
Finally, Rosales contends that the low-end guideline sentence he
received was greater than necessary to achieve the purposes of § 3553(a),
specifically asserting that the district court failed to consider the mitigating
arguments he raised at sentencing. To the contrary, the record shows that the
district court considered his mitigating arguments in favor of a below-
guidelines sentence, but in weighing those arguments and the § 3553(a)
factors, determined that a low-end guidelines sentence was appropriate. See
United States v. Diaz Sanchez, 714 F.3d 289, 294-95 (5th Cir. 2013). In effect,
Rosales disagrees with the court’s sentencing decision and asks this court to
reweigh the § 3553(a) factors, which this court will not do. See Gall v. United
States, 552 U.S. 38, 51 (2007).
For the foregoing reasons, the district court’s judgment is AFFIRMED.
3
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT ROY HENION,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1926
[February 14, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 16-9891CF10A.
Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellant.
No appearance required for appellee.
PER CURIAM.
Affirmed.
WARNER, GROSS and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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790 F.2d 866
13 Soc.Sec.Rep.Ser. 365, Medicare&Medicaid Gu 35,424UNITED STATES of America, Plaintiff-Appellant,v.Mario M. DIAZ, M.D., Defendant-Appellee.
No. 85-5811.
United States Court of Appeals,Eleventh Circuit.
June 3, 1986.
Leon B. Kellner, U.S. Atty., Alan I. Mishael, Jon May, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.
Xavier L. Suarez, Barnett, Alagia, Zamora & Suarez, John E. Kirkpatrick, Miami, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before FAY, Circuit Judge, HENDERSON* and NICHOLS**, Senior Circuit Judges.
PER CURIAM:
1
On May 11, 1982 the United States brought suit to recover $25,258.21 in overpayments made to Dr. Mario M. Diaz under Part B of the Medicare program, 42 U.S.C. Secs. 1395j-1395w (1982 & Supp. I 1983). The district court entered summary judgment in favor of Dr. Diaz, finding that the government's suit was barred by the statute of limitations. We reverse.I.
2
We begin with a short discussion of the relevant facts.1 After reimbursing Dr. Diaz for claims submitted under Part B of the Medicare program during 1973-75, Blue Cross and Blue Shield of Florida, Inc. ("Blue Cross") made a preliminary determination that Dr. Diaz may have been overpaid.2 Blue Cross therefore forwarded Dr. Diaz' file to the Florida Medical Foundation ("FMF") for "peer review."
3
The Dade County Medical Association Peer Review Committee concluded that there was a "substantial overutilization of Medicare benefits within [Dr. Diaz'] office." On May 1, 1976 the State Peer Medical Utilization Committee reviewed the matter and by letter dated June 1, 1976 notified Blue Cross of its agreement.
4
Efforts to collect the Medicare overpayments from Dr. Diaz proved fruitless. Thus, on May 11, 1982 the United States filed suit. Dr. Diaz moved to dismiss, arguing that suit was not filed within the six-year statute of limitations provided by 28 U.S.C. Sec. 2415(a) (1982).3 The district court found the action timely and subsequently entered summary judgment for the government. We reversed and remanded, finding that the record on appeal was insufficient for us to determine whether or not the action was timely. United States v. Diaz, 740 F.2d 1491, 1493 (11th Cir.1984).
5
We identified June 1, 1976, when FMF notified Blue Cross of its finding that Dr. Diaz was overpaid, as "the latest possible date for initiating the running of the six-year period." Id. (emphasis in original). While the suit against Dr. Diaz was filed within six years of June 1, 1976, we remanded the case to the district court for determination of whether facts material to the right of action were known or reasonably could have been known before June 1, 1976. Id. "If such facts could reasonably have been known earlier by the particular officials in the decision making process," we noted, "the action may have been barred." Id. (footnote omitted).
6
On remand, both parties renewed their motions for summary judgment. Oral argument was conducted and the district court entered summary judgment in favor of Dr. Diaz. The district court found that the government's action was untimely:
7
The Court is firmly convinced that by May 1, 1976, the government could reasonably have known that both peer committees had ruled that overutilization occurred. Having chosen the vehicle of external reviews by peer committees, the government is charged with knowing the result of those reviews as they occur. The government cannot take advantage of delays in communication between its appointed agents and itself. To rule otherwise would permit the government to set in motion unending external reviews and wait indefinite periods of time for their decision. That would subvert the purpose of the Statute of Limitations.
8
Since suit was not filed until May 11, 1982, more than six years elapsed between the time the cause of action accrued and the filing of the suit. The instant suit is thus barred.
9
The United States filed a motion to alter and amend the final summary judgment but the district court denied the motion. This appeal promptly followed.
II.
10
The district court concluded that the United States should be "charged with knowing" that it overpaid Dr. Diaz as of May 1, 1976, finding that FMF was in 1976 an agent of Blue Cross. We disagree. There is nothing in the record to support the district court's characterization of FMF as an agent of Blue Cross.
11
In addition, our previous descriptions of FMF's role in Medicare overcharge disputes refute the district court's finding. In United States v. Kass, 740 F.2d 1493, 1495 (11th Cir.1984) (footnote omitted) (emphasis added), we described FMF as "an independent organization of doctors that provides peer review of cases in which Medicare overcharges are suspected." Similarly, in Diaz, 740 F.2d at 1492 (emphasis added), we reaffirmed that FMF is "an independent body of physicians who provide peer review of Medicare disputes."
12
We therefore conclude that FMF was not an agent of Blue Cross in 1976. We need only now consider whether the United States knew or reasonably could have known of its cause of action against Dr. Diaz before receiving FMF's June 1, 1976 report. In Kass, 740 F.2d at 1497 we held that the government is not to be charged with knowledge of Medicare claim overpayment until facts material to the right of action are "reasonably knowable."
13
On remand, the United States submitted the supplemental affidavit of Buddie Rivers, an overpayment recovery specialist with the Department of Health and Human Services. This uncontroverted affidavit establishes that Blue Cross did not know, and reasonably could not have known, of its cause of action against Dr. Diaz until it received FMF's June 1, 1976 report.4 Because the United States filed suit on May 11, 1982 less than six years later, the action against Dr. Diaz is timely.
III.
14
Concluding that the government's suit against Dr. Diaz is timely completes our task. Because Medicare reimbursement determinations are not subject to judicial review, United States v. Erika, Inc., 456 U.S. 201, 206-11, 102 S.Ct. 1650, 1653-55, 72 L.Ed.2d 12 (1982); United States v. Sanet, 666 F.2d 1370, 1372-75 (11th Cir.1982), we reverse the district court's summary judgment in favor of Dr. Diaz and remand with instructions to enter summary judgment in favor of the United States.5
15
REVERSED and REMANDED.
*
See Rule 3(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit
**
Honorable Philip Nichols, Jr., U.S. Circuit Judge for the Federal Circuit, sitting by designation
1
A complete recitation of the facts is set forth in United States v. Diaz, 740 F.2d 1491 (11th Cir.1984)
2
Blue Cross is the private insurance carrier assigned the task of administering Part B of the Medicare program in Florida. See 42 U.S.C. Sec. 1395u(a) (1982). The carrier is charged with the responsibility of reviewing Part B claims to insure that the claims are "reasonable and necessary." See 42 U.S.C. Sec. 1395y(a)(1)(A) (Supp. I 1983)
3
Section 2415(a) provides in pertinent part that:
every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later...."
In determining the limitation period, 28 U.S.C. Sec. 2416 (1982) must be taken into account:
For the purpose of computing the limitations periods established in section 2415, there shall be excluded all periods during which--
* * *
(c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances ...
4
Buddie Rivers stated that Blue Cross did not learn of FMF's conclusion until Blue Cross received FMF's report "sometime after June 1, 1976."
Between January 13, 1976, the time Dr. Diaz's file was referred to peer review and the time the peer review report was actually received by the carrier along with the return of his records, sometime after June 1, 1976, the carrier was not in contact with either Dr. Diaz or the Florida Medical Foundation, and, as is customary, no further review or examination of Dr. Diaz's file was made by the carrier between those dates. Consequently, the carrier did not know, and reasonably could not have known, the material facts necessary to the cause of action against Dr. Diaz until the carrier received the Medical Foundation's report along with Dr. Diaz's file, sometime after June 1, 1976.
In Kass, 740 F.2d at 1497 and in United States v. Beck, 758 F.2d 1553, 1559 (11th Cir.1985), we also found that receipt of FMF's report constituted notice of the cause of action.
5
The parties agree that our ruling on the issue surrounding the statute of limitations is dispositive of the case
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242 Miss. 208 (1961)
134 So.2d 467
MISSISSIPPI STATE HIGHWAY COMMISSION
v.
STOUT, et al.
No. 42015.
Supreme Court of Mississippi.
November 20, 1961.
Fancher & Fancher, Ray, Spivey & Cain, Canton, for appellant.
*213 Charles Clark, Wm. H. Cox, Jr., Jackson, for appellee.
*215 GILLESPIE, J.
The Mississippi State Highway Commission filed with the Circuit Clerk of Madison County its application for the organization of a special court of eminent domain as provided by law for the condemnation of certain property belonging to John M. Stout. The special court was organized and a verdict rendered by the jury awarding damages of $30,250.00. The Mississippi State Highway Commission appealed to circuit court, where the jury awarded damages of $35,000, and judgment was entered accordingly. Mississippi State Highway Commission appealed to this Court.
(Hn 1) Appellee owns 164 acres of land adjoining the western city limits of Ridgeland, Madison County, Mississippi. The land is about two or three miles north of the city limits of Jackson; the exact distance not being shown in the record. The land is highly developed for pasture with a pecan grove on the south part. The *216 improvements consist of appellee's home, out buildings and fences. Appellee has owned and lived on the land for many years. None of the buildings were taken. A part of the acquisition by appellant is for the purpose of constructing New interstate Highway No. 55, a nonaccess facility. No plans and specifications were introduced in evidence and no engineer testified concerning the details of the new construction. A map was introduced showing the location of the new facility in relation to appellee's land. The land being condemned is in three parcels: Parcel No. 1, being 0.17 acres, is a narrow strip on which a fill is to be constructed, and it is a part of the right of way of Interstate Highway No. 55; Parcel No. 2, being 0.91 acres, is a narrow strip running west from the right of way, and is being acquired for the purpose of reconstructing the Old Agency Road approaching Interstate Highway No. 55, and on this strip is to be constructed a fill up to 15 feet high; Parcel No. 3, consisting of 27.89 acres, is being acquired for use by the Natchez Trace Parkway. Appellee owns 3.17 acres of land south of Parcel No. 3, to which appellee will have no access. Thus the total area of land being taken by appellant is 28.97 acres. An additional 3.17 acres will be made inaccessible. A fill on the appellant's right of way, estimated to be 15 feet high at some places, will abut appellee's remaining land for a total distance of between 950 and 1000 feet.
Appellant contends that the verdict for $35,000 is so excessive as to evince passion and prejudice on the part of the jury. We are unable to agree with this contention. All the witnesses were qualified and used the before and after rule in arriving at the damages. According to appellant's three witnesses, the value of the land before taking was from $95,375 to $102,740; the value of the remaining land after the taking, from $72,307 to $78,990; and the damages from $22,948 to $23,750. Appellee's two witnesses placed the before value at $161,693 *217 and $164,600 respectively; the after value at $118,016.30 and $124,340.40 respectively; and the damages at $43,176.70 and $40,259.60 respectively. Appellant's witnesses valued 110 pecan trees being taken as having a value of $11,000. The jury was justified in finding that the land is physically suitable and well located for subdivision purposes. It was shown that a similar tract comprising 140 acres sold a short time before trial in circuit court for $150,000, with the right reserved to seller to remove the improvements. That tract was about two and one-half miles southeast of appellee's land on the east side of Ridgeland. The Henderson tract, not over one-half mile east of appellee's land, sold shortly before the trial for $818.00 per acre, and that tract had no improvements of substantial value. Appellant proved several sales of land to the west and north at prices ranging from $250 to $400 per acre. Most of those sales involved lands that are not near as close as appellee's land to the expanding residential area north of Jackson, and the jury was justified in finding that the sales shown by appellee were entitled to more weight in showing the value of appellee's land. The jury's view of the land has added significance in this case, for the highway improvements were in progress when the case was tried. Since the proof is not clear as to the height of all the fills abutting nearly a thousand feet of appellee's land, we are not in a position to say the remaining lands adjoining the improvements were not damaged to a considerable extent. We are unable to say that the verdict was so excessive as to evince passion and prejudice on the part of the jury.
Appellant also contends that the lower court erred in admitting testimony as to a sale of lands near and similar to appellee's land because the sale took place after the filing of the application by appellant for the taking of appellee's land. This sale was of land about one-half mile east of appellee's for $818.00 per acre. *218 The sale was by Henderson, already mentioned. Appellant contends that since the application to condemn had been filed when this sale was made it was then definitely known that the highway would run through the area, and necessarily affected the sale price of the lands involved. It is contended that the effect of admitting evidence of such sale tended to give appellee the advantage of the increased value of his land by the use to which it is to be put.
(Hn 2) The rule is that damages are to be assessed and compensation determined as of the time of the taking. (Hn 3) General benefits and injuries resulting from the use to which the land is to be put that are shared by the general public should not be considered in awarding damages in eminent domain cases. Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565. The jury was properly instructed in this respect, and there was no proof of benefits or injuries to the land involved in the Henderson sale resulting from the proposed construction of the highway. (Hn 4) We are unable to say that the proposed construction of Interstate Highway No. 55 about a half mile west of the land involved in the Henderson sale either enhanced or depressed its value. The record justified a finding that the new highway, which is to take the place of present U.S. Highway 51, is further away from the Henderson land than present U.S. Highway 51.
There is another reason why it was not error to admit testimony of the sale taking place after condemnation proceedings had been filed. If the value was in fact so enhanced, that fact could have been proved by appellant so as to diminish the probative value of the evidence concerning the sale. Cf. Mississippi State Highway Commission v. Taylor, 237 Miss. 847, 116 So.2d 757, where it was held to be error not to allow the Commission to prove what the landowner paid for the land four and a half years before the trial. The proof in that *219 case showed that in the years intervening between the date of the purchase and the trial land values had increased, a fact which the jury could properly consider.
(Hn 5) Appellant next assigns as error the admission of the testimony of Frank Stout, son of appellee, as to the yield of a pecan orchard located on Parcel No. 3. He testified to the actual average yield of the pecan orchard for the past five years. Appellant's witnesses had gone into the matter of the yield of the pecan orchard by comparing appellee's orchard to others, and this is some justification for allowing Frank Stout to testify as to the actual yield. The admission of Stout's testimony did not violate the rule laid down in Board of Levee Commissioners v. Hendricks, 77 Miss. 483, 27 So. 613, where it was said that the yield of land in corn and cotton and the value of an orchard could not be proven by opinion evidence in a case where there was little evidence of the value of the land involved. In Mississippi State Highway Commission v. Rogers, 236 Miss. 800, 112 So.2d 250, it was held that it was error to show the yield or income of property (used for business purposes) as a separate element of damage without reference to the before and after values of the land.
(Hn 6) The witness, Frank Stout, properly testified under the before and after rule and the testimony regarding the yield of the pecan orchard was admissible under the circumstances as having a legitimate bearing on the value of the land before the taking. Cf. Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475, and Board of Levee Commissioners v. Nelms, 82 Miss. 416, 34 So. 149. The before and after taking rule is the ultimate measure of damages. It is not proper to prove as a separate item of damage any item, quality or specific injury; but this does not mean that a witness may not testify concerning any specific quality, item, or specific injury which affects the depreciated market value. "Although every factor affecting *220 a depreciated market value may be put in evidence, the ultimate issue is the extent of their cumulated impact upon such total valuation." Wheeler v. Mississippi State Highway Commission, 212 Miss. 606, 55 So.2d 225.
Such testimony is admissible when it affects the before or after value, thus affecting the depreciated value, if the witness testifies in accordance with the before and after taking rule, and connects such specific items with the before and after market values, and considers them only as bearing upon such market values. Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475; Mississippi State Highway Commission v. Strong, (Miss.), 129 So.2d 349.
(Hn 7) Appellant assigns as error the lower court's refusal to give the following requested instruction: "The Court instructs the jury for the State Highway Commission that in arriving at your verdict you shall not consider any elements of inconvenience or other elements which are speculative and remote."
(Hn 8) This was not error. Appellee was not entitled to recover anything for inconvenience as a separate item of damage, but it would have been error to give the instruction. Where land is taken for a highway and the remaining land is divided by the new highway, the severance damage may be substantial. This is especially true when the highway is a non-access facility and where some of the remaining land is rendered inaccessible to the owner, as in the present case. Severance damage is closely related to inconvenience, for the market value of the remaining land is reduced because of the inconvenience in going from one part to the other or because a part may be inaccessible. The instruction would deny the jury the right to consider an item affecting the after taking value of the remaining lands. The instruction *221 is also objectionable for the reason that it has the effect of telling the jury that inconvenience is speculative and remote when in fact it is neither.
This instruction appears as Form No. 2172, Mississippi Jury Instructions, Alexander, and the footnote indicates that it was taken from Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475. The instruction no doubt appeared in the record in the Treas case but there was no issue involving the instruction and it was not considered by the Court, and we know of no case where this instruction has been approved.
(Hn 9) The appellant complains of the following instruction given appellee: "The Court instructs the jury that the 3.17 acre strip lying South of parcel #3 will be inaccessible and of no value to Stout and the Court tells you that you may take into consideration the damages to this property (tho not taken by Highway Dept.) in fixing the value of Stout's property after the taking of this property so as to award in such manner damages to Stout for such severance damages to said 3.17 acres."
(Hn 10) This was error. The evidence showed that appellee would have no access to a strip of land south of parcel No. 3 after the taking. It was error to tell the jury that the land would be of no value to appellee. He will still own the land even if he cannot get to it. There was no proof that it would not have some market value. It cannot be said as a matter of law that lack of access to a tract of land completely destroys its value.
(Hn 11) Appellant also contends that the instruction was improper because it tended to authorize the jury to award appellee damages for the severance of the 3.17 acres of land as a separate item of damage, and because it singled out and gave undue prominence to this element of damage. This contention is well taken. "It should repeatedly be emphasized that subjects which *222 are relevant as testimony are not thereby appropriate for instructions. Although every factor affecting a depreciated market value may be put in evidence, the ultimate issue is the extent of their cumulative impact upon such total valuation. When they are made subjects of special comment in instructions, there is not only a violation of Code of 1942, Section 1530, but this results in duplication of damages... . and the procedure in this sort of case would be simpler and safer if the juries could be instructed that the damage is to be computed upon the basis of the difference between the fair market value of the entire property affected before and after the taking. The several items of damage should be left to the fields of testimony and argument." Wheeler v. Mississippi State Highway Commission, 212 Miss. 606, 55 So.2d 225.
Appellee contends the instruction is authorized by Hamilton v. Mississippi State Highway Commission, 128 So.2d 742. That was a suit for damages resulting from the closing of a street and reconstructing the highway so as to limit Hamilton's access to his property. No property was taken and the basis of the claim for damages was the limitation put on the owner's right of access. The basis of liability was a proper subject of an instruction. We do not consider that case applicable.
(Hn 12) Appellant contends the giving of the following instruction on behalf of appellee was error: "The Court instructs the jury for the Defendant that the burden of proof in this case is on the Plaintiff (State Highway Department) throughout the trial of this case to show you by the greater weight of the more convincing evidence as to the amount of Defendant's damages in this case; that is to say that if you believe from all of the evidence that the evidence offered on behalf of the Defendant (Stout) is just as strong and just as convincing as the evidence on behalf of the Plaintiff, *223 then the Court tells you that the Plaintiff has failed to meet its burden of proof and that it will then become your duty to return a verdict for the Defendant Stout in such amount as you believe from the evidence offered on behalf of the Defendant will fully and completely compensate him for his property taken and remaining property damaged, if any, in this case."
Appellant does not complain of the first part of the instruction, being that part down to the semi-colon. We hold the latter part of this instruction is error. The statute does not fix the burden of proof but we have held that the condemnor has the burden of establishing damages caused by the taking. Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 193 So. 565; Mississippi State Highway Commission v. Treas, 197 Miss. 670, 20 So.2d 475; Warren County v. Harris, 211 Miss. 80, 50 So.2d 918. In Hillman, it was held that no error was committed by refusing an instruction that the burden of proof as to damages was on the defendant landowner. In Treas the condemnor complained on appeal that the lower court committed error in giving an instruction on behalf of the landowner that "the burden of proof is on the State Highway Department on the issue of damages sustained by Charles Treas by the taking of the land condemned." The Court held this was not error. In Harris it was held that where the condemnor failed to offer proof as to damages in the county court, the circuit court, on appeal, was justified in reversing the judgment of the county court and ordering a new trial in the circuit court.
The latter part of this instruction is argumentative and confusing. The jury should not have been told that it could decide the question of damages by considering only the evidence offered on behalf of the defendant. The fact that the jury did not give the full amount of damages estimated by appellee's witnesses does not cure the error.
*224 Appellant assigns as error the giving of the following instruction on behalf of appellee: "The Court instructs the jury that there is no such thing known to the law as an `expert witness' on the question of market value of property taken or damaged for public use; and the Court tells you that you are the sole judges of the credibility of the witnesses and the weight to be accorded their testimony in this case; and the Court tells you as a matter of law that it is your duty to carefully and impartially weigh and consider the evidence and testimony presented to you from the witness stand for your consideration in this case and to make up your verdict from such evidence and testimony and your visual inspection of the subject property under the instructions of the Court in this case."
(Hn 13) Both parties used what are commonly known as expert witnesses on the question of values before and after the taking. Considerable testimony was offered qualifying these witnesses by showing their experience as appraisers. It is common knowledge that qualified appraisers who testify in eminent domain proceedings are generally referred to as expert witnesses. The text books and cases refer to them as experts. Warren County v. Harris, 211 Miss. 80, 50 So.2d 918. Appellee contends that the case of Mississippi State Highway Commission v. Strong, 129 So.2d 349, where the Court said that the term "expert witnesses" is a misnomer, authorizes the instruction. The issue being discussed in that case was not one of terminology, but who should be allowed to testify as to values. The Strong case is no authority for the proposition that there is no such thing known to the law as an expert witness on the question of the market value of property, for the opinion contains the term "expert witness" several times in designating witnesses who were experienced in making appraisals. (Hn 14) The instruction singled out and had the effect of disparaging the testimony of the expert *225 witnesses. Cf. Louisville, New Orleans & Texas RR. Co. v. Whitehead, 71 Miss. 451, 15 So. 890. While both parties used expert witnesses, appellant used only three, all of whom were experts. (Hn 15) The jury should give the testimony of the expert witnesses such consideration as it believes them entitled to receive. Warren County v. Harris, supra; Robinson v. McShane, 163 Miss. 626, 140 So. 725.
(Hn 16) Appellant assigns as error statements made by appellee's attorney during the trial and argument that the Federal Government would pay the damages assessed. Appellant is not in a position to raise this question because it did not object, and made no motion for a new trial. If the trial court had had the opportunity to rule on this question and had ruled adversely to the appellant, it would undoubtedly have been reversible error. As far as the jury is concerned, the appellant pays the judgment and any statement to the contrary would obviously be prejudicial.
The cause is reversed and remanded for a new trial.
Reversed and remanded.
McGehee, C.J., and Kyle, Ethridge and Jones, JJ., concur.
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749 F.2d 367
GIBRALTAR COAL COMPANY and Old Republic Insurance Companies,Petitioners,v.John L. HASKINS and Director, Office of Workers'Compensation Programs, et al., Respondents (83-3334).NATIONAL MINES CORPORATION and Old Republic InsuranceCompanies, Petitioners,v.Dillard JOHNSON and Director, Office of Workers'Compensation Programs, et al., Respondents (83-3335).PEABODY COAL COMPANY and Old Republic Insurance Companies, Petitioners,v.Malcolm O. GRIGGS and Director, Office of Workers'Compensation Programs, et al., Respondents (83-3336).TARHEEL COALS, INC., Petitioner,v.Johnny SMITH and Director, Office of Workers' CompensationPrograms, et al., Respondents (83-3359).KENTUCKY CARBON CORPORATION, Petitioner,v.John WEBB and Director, Office of Workers' CompensationPrograms, et al., Respondents (83-3418).
Nos. 83-3334, 83-3335, 83-3336, 83-3359 and 83-3418.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 2, 1984.Decided Dec. 10, 1984.
John L. Kilcullen, Kilcullen, Wilson & Kilcullen, Mark E. Solomons (argued), Washington, D.C., for petitioners in all cases.
Agnes Kurtz, Benefits Review Bd., U.S. Dept. of Labor, Jeffrey J. Bernstein; Janice B. Corwin, Allen H. Feldman (argued), U.S. Dept. of Labor, Special Appellate and Supreme Court Litigation Div., Washington, D.C., for respondents in all cases.
Ronald K. Bruce, Greenville, Ky., for respondents in No. 83-3334.
Grayson Johnson, Hindman, Ky., for respondents in No. 83-3335.
A.V. Conway, II, Beaver Dam, Ky., for respondents in No. 83-3336.
Donald Shire, J. Michael O'Neill, Associate Sols., U.S. Dept. of Labor, Washington, D.C., H.B. Noble, Hazard, Ky., for respondents in No. 83-3359.
1
Robert J. Greene, Webb, Greene & Belhasen, Paintsville, Ky., for respondents in No. 83-3418.
2
Before EDWARDS, Circuit Judge, BROWN, Senior Circuit Judge, and SILER, District Judge.*
3
SILER, District Judge.
4
These are five cases presenting the identical issue on appeal: When does interest on an award of benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq., commence?
5
In one case (83-3359), the Administrative Law Judge (ALJ) held interest was to be computed from the last month the claimant was employed as a coal miner. In the other four, the ALJ held interest was to be computed from the date the claim was filed. The petitioners, employers and insurance carriers, assert that interest should be computed beginning thirty days after the date on which an award of benefits was made. The respondent, Director, Office of Workers' Compensation Programs (hereinafter "Director"), agrees with the petitioners' position.
6
After the decisions by the ALJs, appeals were taken by the employers to the Benefits Review Board ("BRB") pursuant to 33 U.S.C. Sec. 921(b), incorporated by 30 U.S.C. Sec. 932(a). The BRB affirmed the ALJs' interest awards, on the basis of its opinion in Kuhar v. Bethlehem Mines Corp., No. 81-111 BLA (March 15, 1983), vacated in relevant part sub nom. Bethlehem Mines Corp. v. Director, OWCP, No. 83-3226 (3d Cir. Aug. 12, 1983), that the regulation, 20 C.F.R. Sec. 725.608(a),1 from the Secretary of Labor, means that interest begins to accrue as of the original date of the claimants' eligibility for benefits. This appeal was then taken from that decision.
7
This is an unusual case, as the claimants declined to pursue the appeal. The only arguments on appeal were by the employers and the Director, both taking the same position, that is, that the BRB erred in computing interest.
8
Under the circumstances, this case is moot, as there is no controversy before this Court. See Greenwich Collieries v. Director, Office of Workers' Compensation Programs, 732 F.2d 343 (3d Cir.1984), citing A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961).
9
Moreover, the issue is not likely to arise again except for pending claims filed prior to January 1, 1982, as the Secretary of Labor, acting on congressional directives, revised 20 C.F.R. Sec. 725.608(a) on May 31, 1983, to add to the earlier language:
10
On claims filed on or after January 1, 1982, in which the payment of retroactive benefits has been withheld pending final adjudication of liability in accordance with section 422(d) of the Act as amended, interest on such withheld retroactive benefit payments shall begin to accumulate 30 days after the date of the first determination that such an award should be made. The first determination that such an award should be made may be a deputy commissioner's initial determination of entitlement, an award made by an administrative law judge or a decision by the Board or a court, whichever is the first such determination of entitlement made upon the claim....
11
Therefore, these cases will be remanded to the BRB with the direction that its orders with respect to interest be vacated insofar as it awards interest for the period prior to thirty days from the date of initial determination of entitlement in the cases.
*
The Honorable Eugene E. Siler, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky and Judge, United States District Court for the Western District of Kentucky, sitting by designation
1
If an operator or other employer fails or refuses to pay any or all benefits due under the terms of an initial determination by a deputy commissioner (Sec. 725.420), a decision and order filed and served by an administrative law judge (Sec. 725.478) or a decision filed by the Board or a United States court of appeals, including any penalty awarded in addition to benefits in accordance with Sec. 725.607, such operator shall be liable for simple annual interest on all past due benefits computed from the date on which such benefits were due and payable, in addition to such operator's or other employer's liability as is otherwise provided in this part
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Matter of Kriegar v McCarthy (2018 NY Slip Op 04193)
Matter of Kriegar v McCarthy
2018 NY Slip Op 04193
Decided on June 8, 2018
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 8, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
668 CAF 17-01729
[*1]IN THE MATTER OF CINDY A. KRIEGAR, PETITIONER-APPELLANT,
vTIMOTHY MCCARTHY, RESPONDENT-RESPONDENT.
ROBERT A. DINIERI, CLYDE, FOR PETITIONER-APPELLANT.
LORENZO NAPOLITANO, ROCHESTER, ATTORNEY FOR THE CHILDREN.
Appeal from an order of the Family Court, Wayne County (Richard M. Healy, J.), entered August 18, 2017 in a proceeding pursuant to Family Court Act article 6. The order granted respondent's motion to dismiss the petition for modification of a custody order.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the petition is reinstated, and the matter is remitted to Family Court, Wayne County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner mother filed a petition to, inter alia, modify a prior order of joint legal custody by awarding her sole legal custody. Respondent father moved to dismiss the petition, and Family Court granted the motion. We agree with the mother that the court erred in granting the motion and summarily dismissing her petition.
It is well settled that " [a] hearing is not automatically required whenever a parent seeks modification of a custody order' " (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417 [4th Dept 2003]). In order to survive a motion to dismiss and warrant a hearing, " a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child' " (Matter of Gelling v McNabb, 126 AD3d 1487, 1487 [4th Dept 2015]; see Di Fiore, 2 AD3d at 1417-1418). When faced with such a motion, "the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts fit within a cognizable legal theory" (Matter of Machado v Tanoury, 142 AD3d 1322, 1323 [4th Dept 2016]). Here, we conclude that the mother adequately alleged a change in circumstances warranting a modification of the prior order, i.e., that the father has repeatedly and consistently neglected to exercise his right to full visitation and has endangered the children by exposing them to individuals who engaged in drug use (see generally Matter of Kelley v Fifield, 159 AD3d 1612, 1613-1614 [4th Dept 2018]; Matter of Farner v Farner, 152 AD3d 1212, 1214 [4th Dept 2017]; Machado, 142 AD3d at 1323). We therefore reverse the order, deny the motion, reinstate the petition and remit the matter to Family Court for a hearing thereon.
Entered: June 8, 2018
Mark W. Bennett
Clerk of the Court
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394 F.2d 582
C. R. BARD, INC., Appellant,v.FOLEY BAG CATHETER, INC., Appellee.
Patent Appeal No. 7931.
United States Court of Customs and Patent Appeals.
May 16, 1968.
W. Saxton Seward, New York City, (Robert I. Dennison, Washington, D.C., of counsel) for appellant.
Harold J. Kinney, St. Paul, Minn., for appellee.
Before WORLEY, Chief Judge, and RICH, SMITH and ALMOND, Judges.
WORLEY, Chief Judge.
1
Appellant seeks review of the decision of the Trademark Trial and Appeal Board1 dismissing its opposition to appellee's application for registration of the following mark for urological and endoscopic instruments, such as catheters:
2
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
3
The application contains the following language which we, like the board, consider adequate to disclaim certain matter:
4
Applicant seeks no registration rights in the words "The Foley Bag Catheter" or in the reproduction of the goods, or in the word "Foley," apart from the mark as shown.
It also includes the following statement:
5
The mark "FEB Foley" is the facsimile signature of Frederic E. B. Foley, President of applicant corporation.
6
The record establishes that appellant has continuously used the term "Foley" on a balloon or inflatable type catheter which it has sold in commerce since 1958, a date prior to appellee's effective date.2
7
Although the controlling question is whether appellant will be damaged by the registration appellee seeks,3 appellant contends that the question is res judicata by virtue of a final board decision adverse to appellee in a previous opposition4 involving the same parties. There appellee sought registration of the instant mark but without disclaiming what is herein disclaimed. There was evidence that "Foley" is a common descriptive name for a particular catheter, thus the board concluded that registration of the mark sought "would be inconsistent with the right of opposer to continue the use of `Foley' as it has done in the past."
8
While the present record also supports a finding that "Foley" is descriptive, the issue is different and res judicata does not apply because the disclaimer here avoids that potential restraint against appellant's use of descriptive matter on which the decision in the previous opposition was grounded. As the board observed in the present case:
9
* * * the registration sought by applicant with the restriction therein would not be inconsistent with opposer's right to continue to do what it has in the past, namely use "Foley", per se, descriptively to designate a particular type of catheter.
10
That conclusion, with which we agree, disposes of any claim that appellant will be damaged by the registration sought. However, appellant contends that those who observe the composite mark in use with the notation ® indicating registration, but do not investigate to find there is a disclaimer, "will think that Dr. Foley and his company somehow have reclaimed that which he so freely relinquished thirteen years ago."5 That contention is not pertinent here. Appellee obviously has the right to use the composite mark and, so far as the public is concerned, the goods of appellee may be distinguished from the goods of others by the mark. It is immaterial to any but appellant and those others who may wish to use the descriptive matter in the mark in commerce that a disclaimer6 has been made. Such users or potential users can readily determine the status of the mark.
11
The decision is affirmed.
12
Affirmed.
Notes:
1
Result reported at 148 USPQ 770
2
Appellee has introduced no evidence to show that it is entitled to any date prior to the filing date of its application, February 28, 1962. See Columbian Steel Tank Company v. Union Tank and Supply Company, 277 F.2d 192, 47 CCPA 898 (1960)
3
Appellant also urges as a preliminary question that the board erred in refusing to strike appellee's answer to the notice of opposition, which answer consisted of a general denial of every averment in the notice. We find no reversible error in the board's finding that the answer amounts to a proper pleading
4
C. R. Bard, Inc. v. Foley Bag Catheter, Inc., 132 USPQ 470 (T.T. & A.B., 1961)
5
In evidence in the previous opposition are letters written in 1953 by Dr. F. E. B. Foley, who was appellee's president and apparent developer of the particular catheter bearing his name. In those letters, Dr. Foley conceded that "Foley Catheter" is a generic term
6
Appellant has cited Fischbeck v. Kleeno, 44 App.D.C. 6, (1915), and Walgreen Co. v. Godefroy Manufacturing Co., 58 F.2d 457, 19 CCPA 1150 (1932), as cases wherein disclaimers were held ineffective to avoid successful opposition. In contrast to the present case where the disclaimed subject matter is descriptive, the opposer had trademark rights relating to the disclaimed material in both cited cases
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 705 MAL 2017
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
ARTHUR FRANCES NICHOLL, JR., :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 30th day of April, 2018, the Petition for Allowance of Appeal is
DENIED.
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348 F.2d 591
Dennis Paul LIPTON, Appellant,v.UNITED STATES of America, Appellee.
No. 19541.
United States Court of Appeals Ninth Circuit.
July 27, 1965, Rehearing Denied Sept. 23, 1965.
1
F. Alfred Aycock, Fresno, Cal., for appellant.
2
Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Sec., Donald C. Smaltz, Asst. U.S. Atty., Los Angeles, Cal., for appellee.
3
Before JERTBERG and BROWNING, Circuit Judges, and BOWEN, District judge.
4
BOWEN, District Judge.
5
Dennis Paul Lipton, appellant here, appeals from the judgment and sentence imposed by the Trial Court pursuant to his conviction by the Court sitting without a jury on the one-count indictment charging appellant under the Dyer Act with the unlawful transportation in interstate commerce of a 1951 Chevrolet automobile known to him to have been stolen.
6
In the Trial Court, the appellant upon his request was assigned counsel by the Court, was arraigned and pleaded not guilty, and through his counsel moved to suppress the evidence discovered by a city motorcycle patrolman respecting appellant's possible violations at Bakersfield of California's vehicular traffic laws, and leading to appellant's arrests, first, for driving without a driver's license, and second, for driving a stolen motor vehicle and finally to the charge in said indictment of his Dyer Act violation. The motion to suppress was denied by the Trial Court which set the case for jury trial, a jury trial was had, but a mistrial was ordered because the jury was unable to agree upon its verdict. Thereupon, the appellant waived jury trial and consented to trial before the Court without a jury, and at such non-jury trial the Court found the appellant guilty as charged, and initially imposed against him a two-year sentence, but later reduced it to one year, ten months and fifteen days.
7
The Trial Court under 18 U.S.C.A. 2312 (the Dyer Act) had, and this Court under 28 U.S.C.A. 1291 and 1294 has, jurisdiction.
8
Appellant's assigned errors, though not stated in his words, are in substance: (1) That there was no legal right, justification or probable cause for the officer's stopping the automobile driven by appellant and investigating appellant's driver qualifications, and (2) that the arrest of appellant was without probable cause and was unlawful.
9
On June 18, 1964, Bakersfield, California, motorcycle police patrol officer Snow while on traffic control duty observed appellant, a youth 18 or 19 years old, driving on a city street in Bakersfield a 1951 Chevrolet automobile with Arizona state license plates. Snow was a traffic control motorcycle patrolman whose main duty pertained to traffic control work. Pursuant to his assigned duty and utilizing the red light on his motorcycle, officer Snow stopped the Chevrolet driven by appellant to see if the driver had a driver's license.
10
Officer Snow asked to see appellant's driver's license, but the latter was unable to produce a driver's license or any other identification, and told the officer that he had left the license at his home. The officer then arrested the appellant for not having a driver's license or other evidence of his identity, as required by the California Vehicle Code 40302(a). Snow then inquired of the appellant concerning his ownership and registration of the Chevrolet. Appellant told the officer he had purchased the car from his aunt, Helen Dynia, in Phoenix for $200, and produced a registration certificate in her name and said his own name was David Minsky. Upon further questioning concerning his aunt, the appellant became evasive, and did not know her street address or in what section of Phoenix she resided.
11
In view of the foregoing officer Snow became suspicious, and via his motorcycle radio called the Bakersfield police desk sergeant and requested information as to whether the Chevrolet was a stolen vehicle. While that radio communication was occurring, appellant said he might have some identification, went around to the other side of the car 'as if to get into the glove compartment,' but instead of stopping there he then broke and ran, the officer pursued him on foot for about two blocks, overtook the appellant and returned with him to the officer's motorcycle. Then officer Snow, in response to his radio inquiry, was informed that the Chevrolet had been reported stolen by the Arizona highway patrol. Thereupon, appellant was arrested again, this time for driving a stolen vehicle, and was turned over to a detective of the Bakersfield police department for further investigation and transportation to that department.
12
The foregoing evidence related to events occurring before and at the time of appellant's final arrest by officer Snow.
13
No acts of Congress governing the conduct of inspecting and arresting officers in cases relating to traffic control on the public highways have been cited or brought to our attention, and we are not advised of any. In United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210, 217, the Supreme Court held:
14
'* * * that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.'
15
Likewise in Burks v. United States, 9 Cir., 1961, 287 F.2d 117, cert. denied 369 U.S. 841, 82 S.Ct. 868, 7 L.Ed.2d 846, this court at page 122 held:
16
'State law determines the validity of arrests without warrants, subject to such minimum standards as the Supreme Court may rule are required by constitutional standards. * * * Thus it is not relevant that appellant was finally indicted for a federal offense; if his arrest was valid under state law, the subsequent search and seizure was valid and the evidence so obtained admissible in the federal prosecution.'
17
California Vehicle Code, Section 12500(a) provides:
18
'(a) No person shall drive a motor vehicle upon a highway unless he then holds a driver's license issued under this code, except such persons as are expressly exempted under this code.'
19
That provision applies to non-resident minors, California Vehicle Code 12504.
20
California Vehicle Code, Section 12951 provides in pertinent part:
21
'The licensee shall have the license issued to him in his possession at all times when driving a motor vehicle upon a highway and when driving shall display the same upon demand of a peace officer enforcing the provisions of this code.'
22
As above noted, California is an automobile-license state which prohibits the driving of a motor vehicle on a highway unless the driver 'then holds a driver's license issued under this code' 12500(a), supra). The California law (12951, supra) further requires the driver licensee while driving on a highway to have in his possession and to display his driver's license 'upon demand of a peace officer enforcing the provisions of the code,' and that law applies to non-resident minors (12504, supra) and provides that they may upon certain conditions use valid licenses issued to them by other states. The necessary implication of those code provisions is that a peace officer in the proper discharge of his duty has the right to stop a driver and make such demand.
23
Since appellant's car was subject to the licensing provisions of the California Vehicle Code, it was lawful for the officer to stop the car to investigate the driver's possession of a license to drive the car on the California highway in question. No other way was available to the officer to determine whether appellant possessed the required license. The momentary detention of appellant for this limited purpose was not an arrest of appellant since under the California law arrest is defined as 'taking a person into custody.' Busby v. United States, 9 Cir., 1961, 296 F.2d 328, 331 (citing and quoting from Cal.Penal Code 834). If stopping appellant for the sole purpose of inquiring whether he held a license for the activity in which he was engaged was in any sense a 'seizure' it was not an 'unreasonable' one, and did not violate any right given appellant by the Fourth Amendment, made applicable to the State by the Fourteenth. Cf. Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). A contrary holding would render unenforceable the State statute requiring that automobile drivers be licensed.
24
This does not mean that a traffic officer might stop an automobile and ask to see the operator's license as a ruse in an intended search for evidence of some possible crime unrelated to possession of a driver's license. Taglavore v. United States, 9 Cir., 1961, 291 F.2d 262. We are satisfied that there was no such improper objective involved in this case.
25
When appellant was unable to produce the driver's license in response to officer Snow's demand, then the officer had probable cause to arrest the appellant, as he did, for violation of 12951 of the California Vehicle Code. Upon learning via radio from his headquarters that the car was a stolen car in the possession of appellant, the officer then had probable cause for arresting appellant, as was done, on the further charge of driving a stolen vehicle.
26
We have considered the authorities cited by appellant and appellee, but in view of the factual variance between them and our case, we believe our decision here should not be altered by the decisions or provisions of such cited authorities.
27
Appellant contends that officers should have advised appellant of his constitutional rights to have counsel and to remain silent, and failed to do so. Since this issue was not raised below and the pertinent facts therefore were not developed in the record, we cannot consider it.
28
The evidence was more than adequate to support the conviction. In addition to that already recited, witness Helen Dynia of Phoenix testified that she was the owner of the Chevrolet in question, that it had been taken from a parking lot in Phoenix on May 29, 1964, without her permission or knowledge, and that she neither knew nor was related to appellant. Also, during the trial, FBI agent Brown testified that, after advising appellant of his right to counsel, of his right against self-incrimination, and that what he said could be used against him in Court, he interviewed appellant in the Kern County Jail at Bakersfield, and that appellant then said he had purchased the car from an unknown party in Phoenix for $50, and, that, after waiting three or four days for car title papers promised by that unknown seller without receiving them, he had driven the car directly from Arizona to California.
29
Appellant has failed to sustain each and all of his assignments of error and his objections to the judgment and sentence of the Trial Court.
30
The judgment and sentence of the Trial Court are affirmed.
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494 F.3d 1270 (2007)
UNITED STATES of America, Plaintiff-Appellee,
v.
Roberto CARRASCO-SALAZAR, Defendant-Appellant.
No. 06-2311.
United States Court of Appeals, Tenth Circuit.
July 30, 2007.
*1271 Terri J. Abernathy, Assistant United States Attorney, (and Larry Gomez, Acting United States Attorney, on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.
Leon Schydlower, El Paso, Texas, for Defendant-Appellant.
Before TACHA, Chief Circuit Judge, BALDOCK, and KELLY, Circuit Judges.
PAUL KELLY, JR., Circuit Judge.
Defendant-Appellant Roberto Carrasco-Salazar pled guilty to unlawful reentry by an alien previously convicted of an aggravated felony, see 8 U.S.C. §§ 1326(a) & (b)(2), and appeals his sentence of 70 months' imprisonment. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Background
Mr. Carrasco is a Mexican citizen. In 1996, he pled guilty to one count of criminal sexual conduct in the fourth degree in Minnesota, see Minn.Stat. § 609.345(1)(c), and he was deported on January 16, 2002. On October 24, 2003, the border patrol arrested Mr. Carrasco in Sunland Park, New Mexico. After waiving indictment, he entered a plea of guilty on December 30, 2003 to an information charging him with unlawful reentry.
The Probation Office prepared a Presentence Investigation Report ("PSR") in advance of sentencing. The PSR calculated Mr. Carrasco's base offense level at 8, but it recommended a 16-level enhancement based upon his prior conviction for fourth-degree criminal sexual conduct. See U.S.S.G. § 2L1.2(b)(1)(A). After deducting 3 points for acceptance of responsibility, see id. § 3E1.1, the PSR determined that Mr. Carrasco's total offense level was 21. Mr. Carrasco's criminal history score was calculated to be 13, leading to a criminal history category of VI. This resulted in a Guideline sentencing range of 77 to 96 months' imprisonment.
On April 22, 2004, Mr. Carrasco filed objections to the PSR, contesting both the 16-level enhancement and the calculation of his criminal history score. R. Doc. 14, at 1-2. The objection relevant to this appeal challenged the PSR's use of Mr. Carrasco's Minnesota conviction to enhance his offense level, arguing that fourth-degree criminal sexual conduct is not categorically a crime of violence because it includes acts which would not constitute crimes of violence. See Minn. Stat. § 609.345; Aplt. Br. at 7-10.
In response, the Probation Office submitted an addendum to the PSR, which included a copy of the Minnesota complaint charging Mr. Carrasco with fourth degree criminal sexual conduct in violation of Minn.Stat. § 609.345(1)(c). This particular subsection of § 609.345 only applies when "the actor uses force or coercion to accomplish the sexual contact." Id. at (1)(c). The complaint alleged that Mr. Carrasco "willfully, wrongfully, unlawfully, intentionally and feloniously engaged in sexual contact with another person and used force or coercion to accomplish the sexual contact." Aplee. Sealed App. at 5. The government also submitted a printout of Minnesota court records indicating that Mr. Carrasco specifically pled guilty to violating § 609.345(1)(c). See R. Doc. 17, Ex. 3.
In July 2004, Mr. Carrasco filed supplemental objections to the PSR claiming that a 16-level enhancement based on his guilty *1272 plea, rather than facts admitted or found by a jury, violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court continued the sentencing hearing pending the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
On July 22, 2005, Mr. Carrasco appeared before the district court for sentencing. The court first sustained Mr. Carrasco's objection to two of the criminal history points assessed against him. This resulted in a total offense level of 21 and a criminal history category of V, and Mr. Carrasco's new Guideline range was 70 to 87 months' imprisonment. Then, the following exchange occurred between the court and defense counsel:
THE COURT: All right. There was a presentence report noted. There were objections. I think that all of those now have been resolved, have they not, Mr. Wagman?
MR. WAGMAN: Yes, Your Honor.
I Aplt. Supp.App. (Tr. Sent. H'g 7/22/05) at 3. After ascertaining that Mr. Carrasco had reviewed the PSR with counsel, the court announced a tentative sentence of 70 months' imprisonment. Id. at 3-4. Defense counsel stated that his client had no objection to the sentence, id. at 4, and Mr. Carrasco declined to allocute, id. at 6. The court then imposed sentence.
Discussion
On appeal, Mr. Carrasco seeks to resurrect his argument that the imposition of a 16-level enhancement was improper. Relying upon Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), he contends that the district court erred in adopting the PSR's characterization of his conviction for fourth-degree criminal sexual conduct as a crime of violence. Aplt. Br. at 6. The government argues that he has waived this argument. Aplee. Br. at 6. This requires us to address waiver and forfeiture.
"Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the `intentional relinquishment or abandonment of a known right.'" United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In other words, "waiver is accomplished by intent, [but] forfeiture comes about through neglect." United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). Given this distinction, we have held that "a party that has forfeited a right by failing to make a proper objection may obtain relief for plain error; but a party that has waived a right is not entitled to appellate relief." United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 247, 166 L.Ed.2d 194 (2006); see also United States v. Hardwell, 80 F.3d 1471, 1487 (10th Cir. 1996) ("Errors that are waived rather than merely forfeited through failure to object are not subject to plain error review."), reh'g granted in part on other grounds, 88 F.3d 897 (10th Cir.1996).
Our prior cases make clear that waiver bars a defendant from appealing an invited error. See, e.g., Teague, 443 F.3d at 1316 (rejecting the defendant's challenge to the conditions of his supervised release because he had proposed them through counsel and personally agreed to them at his sentencing); Hardwell, 80 F.3d at 1487 (rejecting the defendant's claims of misjoinder because his two cases had been tried together at his request). Here, however, the defendant did not actually invite the alleged error; he merely stated that his prior objection had been resolved. Our cases do not squarely address this situation.
However, our sister circuits have uniformly held that an abandoned objection is *1273 waived. In United States v. Martinez-Jimenez, for example, the Seventh Circuit affirmed the defendant's sentence on such grounds. 294 F.3d 921, 922 (7th Cir.2002). The defendant had objected to the enhancement in advance of sentencing, contending that his prior conviction did not qualify as a crime of violence. However, when asked whether he disputed the total offense level calculated in the PSR at sentencing, the defendant responded through counsel, "We do not." Id. at 922. The Seventh Circuit explained:
By such statement, Martinez plainly communicated an intention to relinquish and abandon any arguments related to his offense level calculation. . . . Further, Martinez-Jimenez can hardly claim ignorance on the part of himself or anyone else where, as here, he and the government submitted arguments concerning the very sentencing calculation issue for which he now seeks appellate review, and the probation officer prepared a supplemental report outlining and explaining the offense level computations of which all parties and the court were aware. Martinez-Jimenez has waived any challenge to the district court's offense level calculation and appellate review is precluded.
Id. at 923 (internal citations omitted).
We agree. There can be no clearer "intentional relinquishment or abandonment of a known right," Olano, 507 U.S. at 733, 113 S.Ct. 1770, than when the court brings the defendant's prior objection to his attention, asks whether it has been resolved, and the defendant affirmatively indicates that it has, cf. United States v. Denkins, 367 F.3d 537, 543 (6th Cir.2004) (holding that a PSR objection was waived because "[h]aving expressly raised this issue . . . Defendant and his counsel then proceeded to abandon it"); United States v. Thompson, 289 F.3d 524, 527 (8th Cir. 2002) ("Because the lawyer who represented Thompson in the district court withdrew Thompson's objections to the PSR, Thompson is precluded from arguing those objections on appeal."). Mr. Carrasco waived his objection to the 16-level enhancement by indicating to the district court that it had been resolved. The sequence of events also demonstrates that the waiver was knowing and voluntary, and Mr. Carrasco has made no argument to the contrary. Accordingly, Mr. Carrasco is precluded from challenging the 16-level enhancement on appeal.
AFFIRMED.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-04-456 CR
____________________
GODFREY SAXON NOBLES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 91937
MEMORANDUM OPINION
Godfrey Saxon Nobles pleaded guilty to an indictment for the state jail felony
offense of evading detention. See Tex. Pen. Code Ann. § 38.04(b)(1) (Vernon 2003).
The record reflects Nobles pleaded guilty in exchange for an agreement that his sentence
run concurrently with two other cases in which he also entered guilty pleas. The trial court
convicted Nobles and sentenced him to two years of confinement in a state jail facility.
Appellate counsel filed a brief that concludes no arguable error is presented in this
appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On April 21, 2005, Nobles
was given an extension of time in which to file a pro se brief. We received no response
from the appellant. On submission of the appeal, we have reviewed the record and find
we lack jurisdiction over the appeal. As we have found no error within our appellate
jurisdiction to resolve, we decline to order appointment of new counsel prior to disposing
of the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
A defendant convicted upon a guilty plea pursuant to a plea bargain agreement,
where the punishment assessed does not exceed the agreed punishment recommendation,
may appeal only those matters that were raised by written motion and ruled on before trial
or after obtaining the trial court's permission to appeal. See Tex. Code Crim. Proc.
Ann. art. 44.02 (Vernon 1979); Tex. R. App. P. 25.2(a)(2). The recitations in a
certification must be true and supported by the record for the notice of appeal to invoke
our appellate jurisdiction. Saldana v. State, 161 S.W.3d 763, 764 (Tex. App.-Beaumont
2005, no pet.). The trial court's certification states this "is not in a plea-bargain case, and
the defendant has the right to appeal." At the time Nobles entered his guilty plea,
however, the State introduced an "Agreed Punishment Recommendation," signed by the
prosecutor, defense counsel, and appellant, wherein it was mutually agreed that in
consideration for the guilty plea, the sentence in this case would run concurrently with the
sentences in Cause Nos. 88481 and 90545. (1) This constitutes a plea bargain as
contemplated by Rule 25.2(a)(2). See Saldana, 161 S.W.3d at 764. Therefore, Nobles
had a right to appeal only matters raised by written motion filed and ruled on before trial,
or with the trial court's permission. Id. The record does not reflect the disposition of any
pre-trial motions.
This was a plea bargained case; thus the trial court's certification is incorrect.
Because the record does not reflect any rulings adverse to Nobles on any pre-trial written
motions, and Nobles did not obtain the trial court's permission to appeal, we lack
jurisdiction over the appeal.
APPEAL DISMISSED.
_________________________________
CHARLES KREGER
Justice
Submitted on October 10, 2005
Opinion Delivered October 26, 2005
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
1. The appeals in those cases were dismissed for lack of jurisdiction. See Nobles v.
State, Nos. 09-04-454 CR, 09-04-455 CR, 2004 WL 2827738 (Tex. App.-Beaumont Dec.
8, 2004, no pet.) (Not designated for publication).
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62 So.3d 128 (2011)
W.T.A., Individually and as Co-Administrator of the Estate of the Minor Child, A.J.A.
v.
M.Y., et al.
No. 2011-C-0491.
Supreme Court of Louisiana.
May 6, 2011.
Denied.
KNOLL and CLARK, JJ., would grant.
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698 F.2d 1213
C & C Bookshops, Inc.v.Town of Stoughton
82-1714
UNITED STATES COURT OF APPEALS First Circuit
11/30/82
1
D.Mass.
AFFIRMED
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822 F.Supp.2d 426 (2011)
The NEW YORK TIMES COMPANY and Charles Savage, Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.
No. 10 CV 7920 (RPP).
United States District Court, S.D. New York.
November 8, 2011.
*427 David Edward McCraw, The New York Times Company, New York, NY, for Plaintiffs.
Amy Ann Barcelo, Tomoko Onozawa, United States Attorney Office, New York, NY, for Defendant.
OPINION AND ORDER
ROBERT P. PATTERSON, JR., District Judge.
On November 18, 2010, the New York Times Company ("NYT") and Charles Savage ("Savage"), a NYT reporter, filed this Complaint against the Federal Bureau of Investigation ("FBI" or "Defendant") alleging violations of the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The Complaint originally contained two causes of action, each involving FOIA Requests made by Mr. Savage in November 2009, only one of which, the Assessment Request, is now the subject of Plaintiffs' motion for summary judgment and Defendant's cross motions.
The Complaint states that "in 2009 Mr. Savage submitted the Assessment Request *428 seeking statistics on the use of Assessments." (Compl. ¶ 15.) In a declaration dated April 15, 2011 ("Savage Decl."), Mr. Savage identifies the FOIA Assessment Request as Exhibit G to the Declaration of David McGraw dated February 24, 2011 ("McGraw Decl."). (See Declaration of Charles Savage date April 15, 2011 ("Savage Decl.") ¶ 6.) The FOIA Request Form for the Assessment Request submitted by Mr. Savage reads as follows:
Statistics on the aggregate results of assessments the FBI has conducted using the new authorities provided by the AG Guidelines that were put into effect in December 2008. Breaking down the numbers into each of the six types of assessments, how many were converted into predicated investigations (preliminary or full investigations) based upon the information developed in those assessments and how many were closed? How many are still ongoing? Please provide the most up to date numbers available at the time the reply to this request is provided. (Note: the existence of these statistics was referenced in the FBI's response to question 15 from Senator Feingold in the written questions for the record arising from the March 25, 2009, Senate Judiciary Committee hearing on oversight of the FBI. The FBI answers were sent to Congress on Sept. 15, 2009.)
(McGraw Decl., Ex. G.) Mr. Savage later narrowed the FOIA Request to "the data contained in the FBI's response to Sen. Russell Feingold's question at a March 25, 2009 Senate [Judiciary Committee] oversight hearing." (Savage Decl. ¶ 6.)
By motion dated February 24, 2011 Plaintiffs moved for an order granting summary judgment as to the FOIA requests pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P") 56.[1] On March 25, 2011, Defendant Federal Bureau of Investigation ("FBI") cross-moved for summary judgment and moved to dismiss the action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff filed a reply brief on April 18, 2011. On September 1, 2011 oral argument was held on the motions before the Court. For the following reasons, Plaintiffs' motion for summary judgment is denied and Defendants motion to dismiss is granted.
I. Background
Assessment Statistics Request
"Assessments" allow agents to use authorized investigative techniques to gather information and intelligence on individuals, groups, and organizations that may be involved in activities that are criminal or threaten national security. (Declaration of David M. Hardy dated March 25, 2011 ("Hardy Decl.") ¶ 3 n. 2.) The information gathered in these assessments help the FBI determine whether further investigation is necessary. Id. "Assessments may be used when the FBI obtains `an allegation or information' or an `articulable factual basis' concerning crimes or threats to national security, and the matter can be investigated or resolved through the relatively non-intrusive methods authorized in assessments." (Id.)
Following Mr. Savage's November 4, 2009 Assessment Request, the FBI sent a letter to the NYT on December 11, 2009 acknowledging receipt of the Assessment Request and stating it was currently reviewing its files. (Hardy Decl. ¶ 23.) On *429 December 23, 2009, the FBI denied the Assessment Request citing exemptions contained in 5 U.S.C. § 552(b)(5) ("Exemption 5") because the information was still in draft form. (McGraw Decl., Ex. H.) Exemption 5 exempts the disclosure of all "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). On December 30, 2009, the NYT filed an administrative appeal from the denial with the U.S. Department of Justice Office of Information on Policy ("OIP"). (Id., Ex. I.) On July 8, 2010, OIP upheld the FBI's denial of the FOIA request. (Id., Ex. J.) By letter to Mr. Savage and the NYT dated December 1, 2010, the FBI advised that Exemption 5, pertaining to draft pages, was no longer applicable and released the requested copy of the letter to the Senate Judiciary Committee but redacted the assessment statistics. (Id., Ex. K.) The FBI asserted that the redactions were exempt from disclosure pursuant to 5 U.S.C. § 552(b)(2) ("Exemption 2") applying to internal personnel rules and practices of an agency,[2] and § 552(b)(7)(E) ("Exemption 7(E)") pertaining to law enforcement.[3] (Id.) The NYT argues in its motion dated February 24, 2011, that these exemptions are inapplicable. (Pls.' Mem. of Law in Supp. of Mot. for Summ. J. ("Pls.' Mem.") at 1.) On March 7, 2011, prior to responding to Plaintiffs' motion, the FBI provided the NYT with the unredacted Senate letter containing the assessment statistics, which was sent to the Judiciary Committee on September 15, 2009. (Hardy Decl. ¶ 30; McGraw Decl., Ex. G.) The Senate letter stated that:
The FBI has initiated 11,667 Type I and Type 2 assessments, 3,062 of which are ongoing. 427 preliminary and full investigations have been opened based upon information developed in these Type I and Type 2 assessments. 480 Type 3, 4, 5, and 6 assessments have been initiated, of which 422 remain open.
(Savage Decl., Ex. B.) Dennis Argall, the FOIA officer who managed the release, states that the Assessment Statistics were released after FBI subject matter experts determined that the release of the numbers initially withheld would "no longer harm any interest protected by either Exemption (b)(2) or b(7)," (Declaration of Dennis J. Argall dated April 28, 2011 ("Argall Decl.") ¶ 5,) and that this review took place between March 3, 2011 and March 7, 2011. (Id.)
On April 15, 2011, during the pendency of this motion, Mr. Savage, apparently recognizing that the headline for his ensuing article on March 26, 2011"FBI Casts Wide Net Under Relaxed Rules for Terror Inquiries, Data Show"was not supported by the data released, submitted two additional FOIA requests to the FBI seeking further breakdown for assessment classification Types[4] to reflect separately the *430 number of assessments of federal criminal activity and assessments of national security threats. (Savage Decl. ¶ 12.) Mr. Savage requested the Assessment Statistics conducted between December 2008 and March 25, 2009 which were provided to the Senate Judiciary Committee, broken down into the number of preliminary and full investigations opened based upon information developed in Type 3 assessments, the number that are still ongoing, and similar information for classification Types 1, 2, and 3 from March 25, 2009 to the present. (Id.) During oral argument, Defendants pointed out that on August 1, 2011, Mr. Savage's April 15, 2011 FOIA request "was released in full except for program-specific assessment statistics that were withheld under FOIA exemption 1 because they were classified under Executive Order." (Transcript of Sept. 1, 2011 Oral Argument ("Tr.") at 14.) Plaintiff did not rebut this statement during argument nor is the Court aware of any administrative appeal on this issue. In any event, Plaintiffs have failed to exhaust their administrative remedies under FOIA as to the April 15, 2011 FOIA request. See 5 U.S.C. § 552(a)(6)(A)(i).
Plaintiffs' in their summary judgment motion seek a broad declaration by the Court that all assessment statisticsas opposed to the Assessment Request for statistics sought in the Complaintare public record under 5 U.S.C. § 552 and subject to disclosure. (See Pls.' Reply Mem. at 4; Tr. at 22.) Defendant contends in its cross-motion for summary judgment that Plaintiffs' claim was mooted by the March 7, 2011 release of the statistics which were the subject of the Complaint. (Def.'s Reply Mem. of Law in Opp. to Pls.' Mot. for Summ. J. and in Further Support of Def.'s Cross-Mot. for Summ. J. and Mot. to Dismiss ("Def. Reply Mem.") at 3.) Plaintiffs, however, argue that its original claim should survive under the voluntary cessation exception to mootness. (Pls.' Reply Mem. at 4.)
II. Standard of Review
Summary judgment "is called for in FOIA cases when the "defending agency... prove[s] that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements." Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). Summary judgment may only be granted where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
*431 III. Discussion
As an initial matter, a motion for summary judgment must be based on the claims in the Complaint. Here, Plaintiffs' Complaint demands the documents requested by Mr. Savage's FOIA Request of November 4, 2009 which Mr. Savage later narrowed to the Senate Judiciary Committee letter. Plaintiffs' request for a declaration was limited in the Complaint to a defined term, i.e., a declaration that "the documents sought by the Assessment Request... are public under 5 U.S.C. § 552 and must be disclosed." The Complaint does not make a claim that all assessment statistics be declared public. Plaintiffs' summary judgment motion nevertheless attempts to broaden their claims to all assessment statistics in an impermissible attempt to avoid mootness. Since the FBI's March 7, 2011 unredacted release of the Assessment Statistics provided to the Senate Judiciary Committee complied with Mr. Savage's FOIA Request in accordance with his later amended request, the NYT's November 4, 2009 FOIA Request is now moot.
Plaintiffs, however, argue that the case is not moot because 1) the FBI is engaged in the unlawful practice of the unwarranted withholding of assessment statistics pursuant to FOIA exemptions, and 2) the discretionary release of the Assessment Statistics on March 7, 2011 does not deprive the Court of adjudicating the legality of the withholding. Plaintiffs contend that the FBI has acted improperly under FOIA by withholding the Assessment Statistics in reliance on Exemption 2 and Exemption 7(E) without adequate grounds. (Pls.' Reply Mem. at 3-4.) Plaintiffs rely on U.S. Dept. of Justice v. Tax Analysts, 492 U.S. 136, 151 n. 12, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989), for the proposition that "[e]ven when an agency does not deny a FOIA request outright, the requesting party may still be able to claim improper withholding by alleging that the agency has responded in an inadequate manner." (Tr. at 17.) Additionally, Plaintiffs argue that it is a policy or practice of the FBI to withhold assessment statistics under these Exemptions and thus the case is not moot under a theory of voluntary cessation. See Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988). These arguments are without merit. Defendant's initial withholding under Exemption 2 was not improper under circuit court case law at the time Exemption 2 was invoked. See Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1056-57 (D.C.Cir.1981). With regard to Exemption 7(E), the FBI released the requested document after a review by its subject matter experts revealed that the release of the assessment statistics requested by Mr. Savage would no longer harm a protected interest. Furthermore, Plaintiffs have failed to provide evidence of prior similar instances to support its claim that it is the policy or practice of the FBI to improperly withhold assessment statistics under Exemption 2 or Exemption 7(E).
Additionally, the Court would be unwise to issue a declaration that the initial withholding of the Assessment Statistics under Exemption 2 and Exemption 7(E) were in fact unlawful because "such a declaration would be an advisory opinion which federal courts may not provide." Payne Enters., Inc., 837 F.2d at 491; see also Better Gov't Ass'n v. Dep't of State, 780 F.2d 86, 91 (D.C.Cir.1986); Long v. Bureau of Alcohol, Tobacco and Firearms, 964 F.Supp. 494, 497 (D.D.C.1997).
IV. Conclusion
Plaintiffs' motion for summary judgment is denied, and Defendant's motion to dismiss *432 for lack of subject matter jurisdiction is granted.
IT IS SO ORDERED.
NOTES
[1] By stipulation dated May 23, 2011, the parties informed the Court that the FBI had produced the requested SIRT information and the related overview report. (See Stipulation dated May 23, 2011, ECF No. 21.) Therefore, Count II of Plaintiff's Complaint is dismissed as moot by stipulation of the parties.
[2] Exemption 2 shields from disclosure records that "relate solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). On March 7, 2011, in Milner v. Dep't. of Navy, ___ U.S. ___, 131 S.Ct. 1259, 1265, 179 L.Ed.2d 268 (2011), the Supreme Court curtailed Exemption 2 to include only those records which "concern the conditions of employment in federal agenciessuch matters as hiring and firing, work rules and discipline, compensation and benefits."
[3] Exemption 7(E) shields "records or information... [that] would disclose techniques and procedures for law enforcement investigations or prosecutions ... or would disclose guidelines for law enforcement investigations... if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E).
[4] The six assessment classification types include:
Type 1: Seek information, proactively or in response to investigative leads, relating to activities constituting violations of federal criminal law or threats to the national security;
Type 2: Seek information, proactively or in response to investigative leads, relating to the involvement or role of individuals, groups, or organizations relating to activities constituting violations of federal criminal law or threats to the national security;
Type 3: Identify and obtain information about potential targets of or vulnerabilities to criminal activities in violation of federal law or threats to the national security;
Type 4: Obtain information to inform or facilitate intelligence analysis and planning;
Type 5: Seek information to identify potential human sources, assess the suitability, credibility, or value of individuals as human sources, validate human sources, or maintain the cover or credibility of human sources, who may be able to provide or obtain information relating to criminal activities in violation of federal law, threats to the national security, or matters of foreign intelligence interest; and
Type 6: Seek information, proactively or in response to investigative leads, relating to matters of foreign intelligence interest responsive to foreign intelligence requirements. See http://foia2.fbi.gov/diog/domestic_investigations_and_operations_guide_part2.pdf.
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WHITNEY STEGALL, )
) Rutherford County Probate
Plaintiff/Appellee ) No Case Number
)
VS. ) Appeal No. 01A01-9704-PB-00147
)
DOTTIE LOU PRYOR, BENTON M. )
MASON, JR., HUGH BURTON
MASON, WILLIAM E. MASON, JR.,
TAYLOR S. MASON, and
)
)
)
FILED
BOB S. MASON, ) October 3, 1997
)
Defendants/Appellees ) Cecil W. Crowson
) Appellate Court Clerk
KIRKLAND A. MASON, TIMOTHY A. )
MASON, JILL MASON QUIGG, )
EDWARD C. MASON, and )
CHRISTOPHER C. MASON, )
)
Defendants/Appellants )
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE PROBATE COURT OF RUTHERFORD COUNTY
AT MURFREESBORO, TENNESSEE
HON. TOM E. GRAY, CHANCELLOR, 18TH JUDICIAL DISTRICT AT GALLATIN,
SITTING BY INTERCHANGE
Darrell L. West Richard F. LaRoche, Sr.
144 Second Avenue, North 107 North Maple Street
The Pilcher Building, Suite 300 Murfreesboro, TN 37133-1648
Nashville, TN 37201 and
and Jerry Scott
Dan E. Huffstutter John Kea
144 Second Avenue, North Scott & Kea
The Pilcher Building, Suite 333 P. O. Box 1216
Nashville, TN 37201 Murfreesboro, TN 37133-1216
ATTORNEYS FOR ATTORNEYS FOR
DEFENDANTS/APPELLANTS DOTTIE LOU PRYOR, ET. AL.,
DEFENDANTS/APPELLEES
Val Sanford
Julie C. Murphy
Gullett, Sanford, Robinson & Martin
230 Fourth Avenue North, 3rd Floor
P. O. Box 198888
Nashville, TN 37219-8888
ATTORNEYS FOR
WHITNEY STEGALL,
ADMINISTRATOR C.T.A. OF
THE ESTATE OF V. R. MASON
PLAINTIFF/APPELLEE
AFFIRMED AND REMANDED
WILLIAM H. INMAN, SENIOR JUDGE
CONCUR:
HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
WILLIAM C. KOCH, JR., JUDGE
WHITNEY STEGALL, )
) Rutherford County Probate
Plaintiff/Appellee ) No Case Number
)
VS. ) Appeal No. 01A01-9704-PB-00147
)
DOTTIE LOU PRYOR, BENTON M. )
MASON, JR., HUGH BURTON )
MASON, WILLIAM E. MASON, JR., )
TAYLOR S. MASON, and )
BOB S. MASON, )
)
Defendants/Appellees )
)
KIRKLAND A. MASON, TIMOTHY A. )
MASON, JILL MASON QUIGG, )
EDWARD C. MASON, and )
CHRISTOPHER C. MASON, )
)
Defendants/Appellants )
OPINION
V. R. Mason died testate on October 29, 1995. The executor, Richard F.
LaRoche, Jr., propounded the will for probate; in the ease of language it provided for the
payment of debts and taxes and created a trust for a family cemetery, with the
remainder to pass under the laws of intestate succession.
The decedent’s heirs are the children and grandchildren of his father’s siblings.
Reference the caption of this Opinion: Dottie Lou Pryor; Benton M. Mason, Jr.; Hugh
Burton Mason; William E. Mason, Jr.; Taylor S. Mason; Dirkland A. Mason; Timothy A.
Mason; Jill Mason Quigg; Edward C. Mason; and Christopher C. Mason.
As tenants in common, the appellants own 21 percent of the estate per stirpes; the
appellees own 79 percent per stirpes.
The decedent owned two tracts of real property, consisting of a 1.6 acre tract and
a 160 acre tract. The post-mortem appraisal of the larger tract, with attendant death tax
consequences, brought about the admitted insolvency of the estate since the personal
property was not sufficient to pay the estate and inheritance taxes.
Compelled by this circumstance, the executor filed a recitative petition in the
Probate Court alleging that both tracts of the real estate should be sold. The executor
then resigned, and Whitney Stegall was appointed Administrator C.T.A.
2
By Order entered on July 16, 1996 the court found and decreed that the
personalty was insufficient to pay the costs of administration and the taxes and directed
the Administrator C.T.A. to sell the 1.6 acre tract; to establish and endow the private
cemetery; and, after investigation, to report his recommendation relative to the
disposition of the 160 acre tract.1
On August 5, 1996 a Limited Power of Attorney2 was executed by all of the heirs,
naming Mr. Stegall as their attorney in fact “to act for us . . . in any and all business,
financial, legal and other matters that affect that certain parcel of real property . . . of
160.74 acres.”
The Power of Attorney specifically authorized Mr. Stegall (1) to borrow the
necessary funds with which to pay estate and inheritance taxes, (2) to execute a
mortgage on the real estate as security for the payment of the loan, and (3) to sell the
real estate
“upon such terms as said attorney may deem proper subject to our said
attorney utilizing the following methods of offering the real property for
sale: (a) from the date hereof [August 5, 1996] until September 30, 1996
solicit offers to sell [sic] the real property from private developers and all
other interested persons, employing such private and public forums as our
said attorney may deem appropriate to sell the real property; (b) from
October 1, 1996 until April, 1997 utilized [sic] the professional services of
a real estate broker by entering into a real estate listing contract, and
finally if necessary to sell the real estate; (c) after April 1, 1997 sell the
real estate by absolute auction; (4) . . . ; (5) . . . ; (6) To allow any of the
undersigned the right to match any offer to purchase the real property
which our attorney in fact would propose to accept, subject to said
undersigned individual’s right of refusal being limited to ten calendar days
from the date our said attorney in fact notifies us of the offer to purchase
the real property [emphases added].”
The Power of Attorney then provides that it “may not be terminated except by
. . . a majority of the undesigned giving said attorney written notice of termination.”
The prescribed procedures were followed by Mr. Stegall, as attorney-in-fact, who
employed a real estate agent, the Parks Group, to sell the property. Offers were
received, one of which was from Weston Retail Properties. Mr. Stegall, as Administrator
C.T.A., filed a motion seeking the approval of the Court “to execute a purchase and sale
1
To advise the court wh eth er the tract m ight advanta geously be sold at priva te s ale or b y a
public, judicial sale.
2
Although in the record, the transcripts do not reflect that it was formally introduced in
evidence. The parties treat it as having been introduced and considered by the Court. So will we.
3
agreement.” We note the careful language employed; approval of a sale is not sought.
On November 13, 1996, the Court entered an Order 3 directing the Administrator
C.T.A. to execute the purchase and sale agreement and to require an increase in the
amount of earnest money. Although not incorporated in the Order, the Chancellor
directed Mr. Stegall to give notice to the heirs and to honor the ten day period
mentioned in the Power of Attorney.
The heirs were appropriately notified by Mr. Stegall, acting in his dual capacity.
On November 14, 1996 [the day following the judicial direction to the
Administrator C.T.A. to execute the Purchase and Sale Agreement], the appellants
tendered an offer identical to the Weston offer to the real estate agent. This action was
followed by the delivery of an instrument dated November 18, 1996 executed by the
appellees [excepting Bob S. Mason] owning 66 percent of the interest, which purported
to terminate the Power of Attorney. 4
In his capacity as Administrator C.T.A. Mr. Stegall, on December 10, 1996 filed
another motion in the Probate Court reciting that none of the heirs was financially able
to make a bona fide matching order and should not be allowed to ‘speculate’ because
time was of the essence, and that he was in receipt of another offer for the tract which
should be accepted and approved. This offer from Pirtle, which was his second offer,
was $2,591,000.00; the offer from Weston was $2,566,700.00, the latter allegedly
matched by the appellant heirs pursuant to the provision of the Power of Attorney.
A plenary hearing was had on this motion. The Administrator C.T.A.
recommended that the Pirtle offer be approved; the appellant heirs objected, insisting
that since they had ‘matched’ the Weston offer and had tendered earnest money, no
further offers or bids could be considered.
The trial court thereafter rendered a judgment reiterating that the estate was
insolvent; that the Administrator C.T.A. had brought the property ‘back into the estate’;
that when the heirs matched the Weston offer the matter was thereupon reopened; and
3
A hearing was held on the m otio n giving ris e to this Order, but the re is no transcript of it in
the record. In accordance with established law, we therefore treat this Order as having been entered
pursuant to and fully supported by the evidence.
4
If the Power of Attorney was properly terminated, as urged by the appellees, the appellants’
case must fail for that reason. But the issue is not crucial to a resolution of the case.
4
that the best interests of the estate must be considered, which required the
consummation of the sale to Pirtle, whose offer was the best and highest received.
The five ‘appellant heirs’ appeal, and present these issues for review en haec
verba:
1. Whether the Purchaser Heirs had a contractual right to
purchase the real property which is the subject of this action
on terms approved by the trial court on November 5, 1996,
by virtue of the Purchaser Heirs’ exercise of a right of first
refusal purchase option previously granted and agreed to by
the all of the heirs of V. R. Mason, which right of refusal was
reaffirmed by the trial court on November 5, 1996.
2. Whether the trial court erred in holding that the Purchaser
Heirs’ exercise of their right of first refusal purchase option,
pursuant to the trial court’s November 5, 1996 ruling, had
the effect of opening up the subject property to purchase
offers from third parties.
3. Whether the trial court erred in holding that the Purchaser
Heirs’ right of first refusal was lost by virtue of a purported
revocation of a Limited Power of Attorney which contained
the right of first refusal, which revocation was executed by
some of the other heirs after the Purchaser Heirs had
executed their right of first refusal purchase option.
4. Whether the trial court erred (i) in finding that the Purchaser
Heirs were “speculating” in their purchase of the subject real
property; and (ii) in refusing to permit a sale to the
Purchaser Heirs on the basis of such perceived speculation.
At the outset, we observe that although the appellants filed no motion or other
pleading, we deduce from the entire record, including argument, that the relief they seek
is specific performance, i.e., that the Administrator C.T.A. should judicially be required
to convey the 160 acres to them, and that they should be allowed to purchase the
property.
Our review is de novo on the record of the trial court, accompanied with a
presumption of correctness unless the evidence otherwise preponderates. RULE 13(d)
Tenn. R. App. P. There is no presumption of the correctness of the decision of the trial
court on a question of law. NCNB Nat’l Bank v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct.
App. 1993).
The thrust of the appellants’ argument is that when they ‘matched’ the Weston
offer the matter was at an end and the attorney-in-fact should be directed to convey the
property to them.
5
It is not disputed that they ‘matched’ the Weston offer to the extent they tendered
the required earnest money; 5 neither is it disputed that the Administrator C.T.A. was
authorized to execute the Purchase and Sale agreement, but no agreement was in fact
executed; neither is it disputed that the trial judge orally instructed the Administrator
C.T.A. to advise the heirs in accordance with the ten day provision of the Power of
Attorney. So far as the record reveals, the appellants made no attempt to match the
Pirtle offer.
We agree with the argument that it is a fundamental rule of property law that real
property passes directly to heirs at law or to devisees. Crook v. Crook, 345 S.W.2d 679
(Tenn. 1961). But there are exceptions to this rule, one being that the real estate is
subject to the debts of the decedent if the personal property is insufficient to pay them.
The personal representative may sell the real estate to pay estate obligations if
authorized by the will, and if not, he must institute legal proceedings to accomplish that
purpose. Crook, supra.
Our view of the case does not require us to consider the implications inherent in
the language “brought back into the estate.” We are content to hold that when the
estate was adjudicated to be insolvent, essentially by agreement of the parties, it
remained at all times and for all purposes subject to the jurisdiction of the Probate Court.
Tenn. Code Ann. § 30-2-402, et seq. Moreover, we note that the Order of November
13, 1996 merely authorized the Administrator C.T.A. to execute an agreement; it did not
authorize him to approve a sale. The heirs were allowed to submit a matching offer, but
this fact did not vest in them an inalienable right. Any sale remained subject to judicial
approval, and even then, an approved sale is not complete until it has been confirmed
by the court which ordered the sale. Tenn. Marble & Brick Co. v. Young, 163 S.W.2d
71 (Tenn. 1942).
We struggle with the implied issue of whether the Power of Attorney is
enforceable. The estate had been adjudicated insolvent, and the heirs had no right to
interfere with or oust the jurisdiction of the Court, which was concerned with the sale of
5
There was unre butted testimony offered that the purch aser heirs - the appellants - were
m erely speculating, and could not arrange the requisite financing. The Court so found. We do not
dwell on this issue since it is presently irrelevant to a resolution of the case. Obviously, if they did not
have the requisite funds or cred it worthiness they could not, and thus d id not, match the offer.
6
the land and not the title interests of the heirs. But our resolution need not rest on the
nebulous validity of the Power of Attorney; to the contrary, we may assume its validity
at least to the extent it does not infringe upon the prerogative of the Probate Court to
deal with insolvent estates.
The language of the Power of Attorney is interesting. The attorney-in-fact is
authorized “to allow any of the undersigned to match any offer,” which we interpret to
mean that discretion is reposed in him to allow any heir to match an offer which he
would propose to accept. Even so, we reiterate that the authority of the Administrator
C.T.A. is absolutely subject to the superior right of the Probate Court.
As we have heretofore observed, there is no evidence in this record that the
appellants ‘matched’ the offer of Pirtle which was, prima facie, the highest offer, and
analysis proved it to be the highest and best offer. The Administrator C.T.A. was clearly
obligated to present all three offers to the Court; he could not, as attorney-in-fact, bind
the estate to the acceptance of any offer. In neither capacity could he usurp the
authority of the Probate Court.
It should be noted that the Power of Attorney granted no right of first refusal as
that term is commonly understood. The language employed - “to allow any of the
undersigned the right to match any offer” - does not give a right to purchase, and no
Order was entered so providing.
Finally, the granting of specific performance lies within the sound discretion of the
Court under the peculiar facts, T. J. Moss Tie Co. v. Hill, 235 S.W.2d 587 (Tenn. 1951);
Johnson v. Browder, 207 S.W.2d 1 (Tenn. 1947), and the appellants offered no
evidence whatever upon this point. While the issue of specific performance was never
directly propounded to the Probate Court, the thrust of the appellants’ argument on
appeal is directed to this issue. We find no abuse of discretion on the part of the trial
court in declining to hold that the appellants had a contractual right to purchase the
property.
The judgment is affirmed at the costs of the appellants.
7
________________________________
William H. Inman, Senior Judge
CONCUR:
______________________________________
Henry F. Todd, Presiding Judge, Middle Section
______________________________________
William C. Koch, Jr., Judge
8
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United States Court of Appeals
For the First Circuit
No. 14-2251
JULIET ROSE MCKENZIE LEVESQUE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Tricia A. Quest and Moretti Perlow & Bonin Law Offices on
brief for petitioner.
Lindsay M. Murphy, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Benjamin C.
Mizer, Acting Assistant Attorney General, Civil Division, and Song
Park, Senior Litigation Counsel, on brief for respondent.
September 18, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
HOWARD, Chief Judge. At issue in this immigration case
is whether an individual must serve a "term of imprisonment" to
have committed an "aggravated felony" as that term is defined in
8 U.S.C. § 1101(a)(43). Relying on the plain language of the
statute, we hold that a federal or state conviction can constitute
an "aggravated felony" under this law even if the petitioner served
no incarcerative sentence for that crime. Accordingly, we deny
the petition for review.
In 2011, Petitioner Juliet Rose McKenzie Levesque, a
lawful permanent resident, pled guilty to conspiracy to commit
wire fraud, bank fraud, and identity fraud. See 18 U.S.C. § 371.
The federal district court sentencing Levesque determined that the
total amount of loss to the victims was $29,444.22, and thus
required Levesque to pay restitution in that amount. The court
then ordered a five-year term of probation, although it did not
impose any incarcerative sentence.
As a result of this predicate conviction, the Department
of Homeland Security initiated removal proceedings against
Levesque. See 8 U.S.C. § 1227(a)(2)(A)(iii). In June 2013, an
Immigration Judge ordered Levesque removed under this provision,
and the Board of Immigration Appeals upheld that decision. This
timely appeal followed.
Our review in this case is limited to "constitutional
claims or questions of law." 8 U.S.C. § 1252(a)(2)(C); see also
- 2 -
§ 1252(a)(2)(D) (withholding federal jurisdiction, with limited
exceptions, of "any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered
in . . . § 1227(a)(2)(A)(iii) . . ."). Here, Levesque presents a
pure question of law that we have the jurisdiction to consider and
that we review de novo. See Campbell v. Holder, 698 F.3d 29, 32
(1st Cir. 2012).
We begin with the statutory provisions at the heart of
this case. The statute governing Levesque's removal states, "[a]ny
alien who is convicted of an aggravated felony at any time after
admission is deportable." § 1227(a)(2)(A)(iii). In turn,
"aggravated felony" is defined to include: an offense involving
"fraud or deceit in which the loss to the victim or victims exceeds
$10,000," § 1101(a)(43)(M)(i), and an attempt to or conspiracy to
commit said offense, § 1101(a)(43)(U). Of particular import here,
the end of the section defining "aggravated felony" provides that
the term:
applies to an offense described in [§
1101(a)(43)] whether in violation of Federal
or State law and applies to such an offense in
violation of the law of a foreign country for
which the term of imprisonment was completed
within the previous 15 years.
§ 1101(a)(43) (emphases added).
Levesque concedes that her predicate conviction for
conspiring to commit wire fraud, bank fraud, and identity fraud,
- 3 -
18 U.S.C. § 371, constitutes an offense "involv[ing] fraud or
deceit" under the definition of "aggravated felony." She also
does not argue that the amount of loss to the victims was less
than $10,000. Instead, she contends that the phrase, "for which
the term of imprisonment was completed within the previous 15
years," applies to all convictions (federal, state, and foreign)
and that her federal conviction therefore does not constitute an
"aggravated felony." She alternatively insists that, at a minimum,
the provision is ambiguous.
We make quick work of this argument. The plain language
of the statute undoubtedly indicates that the phrase, "the term of
imprisonment was completed within the previous 15 years" applies
only to those offenses "in violation of the law of a foreign
country." Congress' intentional repetition of the phrase "applies
to" is critical. The second "applies to" in the provision only
does work if there are two separate clauses: one dealing with
federal and state offenses, and the other with foreign offenses.
That is, the statute is best read as saying that the term
aggravated felony "applies to an offense described in
[§ 1101(a)(43)] whether in violation of Federal or State law," and
distinctly "applies to such an offense in violation of the law of
a foreign country for which the term of imprisonment was completed
within the previous 15 years." Indeed, if we read the law as
Levesque does -- a single clause that is entirely modified by the
- 4 -
15-year temporal limit -- then the second "applies to" in the
provision would be entirely redundant. See Blum v. Holder, 744
F.3d 790, 803 (1st Cir. 2014) (noting that "[a]voidance of
redundancy is a basic principle of statutory interpretation")
(citation omitted).
Relatedly, Congress' decision to use the disjunctive
"or" between "Federal or State," juxtaposed with its choice to use
"and" between "Federal or State law . . . and a violation of the
law of a foreign country," further underscores this point. See
Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014) (explaining
that "or" is "almost always disjunctive"); Bruesewitz v. Wyeth
LLC, 562 U.S. 223, 236 (2011) (stating that "linking independent
ideas is the job of a coordinating junction like 'and'[]"). The
use of "and" strongly suggests that there are two separate clauses
in this provision. This is true, contrary to Levesque's assertion,
despite the absence of a comma before the "and." In fact, it is
only if we transformed the "and" to an "or" (i.e., "whether in
violation of Federal or State law . . . [or] . . . an offense in
violation of the law of a foreign country") that Levesque's reading
of the statute would make any sense. Had Congress intended to
write that version of the law, it certainly could have done so.
See United States v. Gitten, 231 F.3d 77, 80-81 (2d Cir. 2000).
But, it plainly did not.
- 5 -
If we had any doubt -- although we have none -- the
manner in which Congress added this provision to the law confirms
our reading of it. Specifically, when Congress added this clause
in 1990, it did so as two independent provisions. Congress stated
that section 1101(a)(43) "is amended":
(5) by adding at the end of the following:
"Such term applies to offenses described in
the previous sentence whether in violation of
Federal or State law.", and
(6) by inserting before the period of the
sentence added by paragraph (5) the following:
"and also applies to offenses described in the
previous sentence in violation of foreign law
for which the term of imprisonment was
completed within the previous 15 years".
Immigration Act of 1990, §§ 501(a)(5) & (6), Pub. L. No. 101-649,
104 Stat. 4978, 5048. It would have been curious for Congress to
have amended the law in this manner if it had intended the 15-year
limit to apply to the entire provision.
Accordingly, we join the other circuits that have
addressed this issue (either directly, in passing, or in the
context of interpreting the sentencing guidelines, see, e.g.,
U.S.S.G. §2L1.2), and hold that a predicate conviction under
federal or state law can constitute an "aggravated felony" under
8 U.S.C. § 1101(a)(43) even when it is not accompanied by a term
of imprisonment. See Canto v. Holder, 593 F.3d 638, 640-41 (7th
Cir. 2010); United States v. Maturin, 499 F.3d 1243, 1245-46 (11th
Cir. 2007); United States v. Olmos-Esparza, 484 F.3d 1111, 1115
- 6 -
(9th Cir. 2007); Gitten, 231 F.3d at 80-81; United States v. Maul-
Valverde, 10 F.3d 544, 546 (8th Cir. 1993).
As such, we deny the petition for review.
- 7 -
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27 Ill. App.3d 457 (1975)
326 N.E.2d 204
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
GARY LONG, Defendant-Appellant.
No. 74-110.
Illinois Appellate Court Third District.
April 11, 1975.
*458 James Geis and Mary Robinson, both of State Appellate Defender's Office, of Ottawa, for appellant.
*459 Martin Rudman, State's Attorney, of Joliet (Michael T. Neese, Assistant State's Attorney, of counsel), for the People.
Judgment affirmed.
Mr. JUSTICE ALLOY delivered the opinion of the court:
Defendant Gary Long appeals from a conviction based on his guilty plea to a charge of theft of a check having a value of less than $150. Following such conviction he was sentenced by the Circuit Court of Will County to 2-years' probation, with the condition that 140 days be served at the Illinois State Farm at Vandalia. This court, thereafter, modified the sentence on petition of defendant, in accordance with the provisions of the Unified Code of Corrections then in force (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.). The sentence was modified to probation without incarceration. Sentence modification was made without prejudice to the consideration of any issue otherwise preserved for appeal in this cause.
On appeal now in this cause, defendant contends that the conviction should be reversed because (1) the defendant was denied due process and equal protection of the law, because of Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402) which denied him a verbatim transcript of his guilty plea proceedings only because he was an indigent misdemeanant, and (2) the record fails to indicate compliance with Illinois Supreme Court Rule 402.
On the issue of failure to supply a verbatim transcript, we should first point out that the record indicates that no verbatim transcript of the proceedings exists. The proceedings were summarized in the following docket notation:
"The defendant is then called upon to plead to the offense of theft in Count One of the amended complaint and the parties represent to the Court that they have reached a mutual disposition to said Count One through plea bargaining and represent their arrangement to the Court at which time the defendant informs the Court he intends to plead guilty to the offense of theft, Misdemeanor in the manner and form as charged in Count One of the Complaint. The Court fully explains to the defendant the penalty provided by law for the offense charged in Count One in the Complaint as amended and his right to trial by jury and after said explanations, the Court finds the defendant knowingly and understandingly persists in his plea of guilty and waiver of jury trial pursuant to the plea bargaining of the parties. The Court finds that the defendant admits the truth of the charge alleged and states the factual basis thereof to the Court. The Court finds the defendant to be 20 years of age and the Court accepts the *460 written plea of guilty and waiver of jury trial and enters same of record."
A "Plea of Guilty and Waiver of Jury" form signed by Gary Long also appears in the record.
1, 2 We need not dwell at length on the issue of the failure to supply a verbatim transcript, since this issue was recently determined by the supreme court of this State following the cases originating in this Court. (People v. Kline, 16 Ill. App.3d 1017, 307 N.E.2d 398, aff'd, 60 Ill.2d 246, and People v. Hopping, 16 Ill. App.3d 275, 305 N.E.2d 610, aff'd, 60 Ill.2d 246.) As indicated in the Kline and Hopping cases and in the supreme court opinions, the supreme court concluded, in agreeing with our disposition of this issue, that a verbatim transcript in misdemeanor cases was not necessary to sustain a guilty plea. It was pointed out in Kline in both the appellate and supreme court opinions, that under Supreme Court Rule 323 (made applicable to criminal appeals by Rule 612 (c)), an alternative method of compiling a report of proceedings is provided for in absence of a stenographic transcript. The defendant had made no attempt to avail himself of this procedure in the instant case. The supreme court of this State held in the Kline and Hopping cases that neither the State nor Federal constitutions require that defendants in misdemeanor cases be furnished with verbatim transcripts of the proceedings at which they acknowledge their guilt. We discussed the issues quite at length in the Kline case in the appellate opinion and further detailed discussion is found in the supreme court opinion in that case. We, therefore, determine it unnecessary to repeat the discussion and analysis in this opinion. It is apparent that the issue raised by defendant as to failure to furnish a verbatim transcript at the hearing on the plea of guilty, therefore, is not a basis for reversal.
3, 4 Defendant also contends that he is entitled to reversal for the reason that the record fails to show compliance with Illinois Supreme Court Rule 402. It is clear that defendant is required to demonstrate in what way there was a failure of substantial compliance with Supreme Court Rule 402 (People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559). He must also show that such failure to substantially comply resulted in prejudice to defendant. (People v. Dudley, 58 Ill.2d 57, 316 N.E.2d 773.) As also indicated in Krantz, literal compliance with Supreme Court Rule 402 is not required. Since the only record before the court here is the docket notation, the only issue before us is whether the contents of that docket notation demonstrate a failure to substantially comply with Supreme Court Rule 402, and whether prejudice to defendant was caused thereby. Appellant has the burden of either presenting a sufficient record to discover or demonstrate the alleged noncompliance or being bound by *461 the necessarily limited disclosures of the docket notation. See People v. Kline, 16 Ill. App.3d 1017, 307 N.E.2d 398, aff'd, 60 Ill.2d 246.
5-7 From the notations in the record it is apparent, in answer to a contention of defendant, that defendant was sufficiently advised and understood the nature of the charge against him. That defendant understood the nature of the charge, is shown further by the notation that he admitted the truth of the charges and stated the factual basis thereof to the court. To sufficiently advise a defendant of the nature of the charge, a court need not explain each and every element thereof (People v. Hufford, 18 Ill. App.3d 646, 310 N.E.2d 216), nor must the court make a personal inquiry of defendant to determine whether he understands (see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559). It is sufficient if defendant is aware of the essence or general character of the charge. In applying this standard to the cause before us, we conclude that it is shown that appellant was sufficiently advised of the charge against him on the basis of the notations in the record. The record also affirmatively shows, in answer to another contention of defendant, that the plea of guilty was not induced by force, threat or promises other than the plea agreement. In People v. Ellis, 59 Ill.2d 255, 320 N.E.2d 15, the supreme court held that while it could not approve of any failure to comply with Supreme Court Rule 402, each such failure does not require a reversal. It is stated in Ellis, at page 257:
"If upon review of the entire record it can be determined that the plea of guilty made under the terms of a plea agreement was voluntary, and was not made as the result of force, threats or promises other than the plea agreement, the error resulting from failure to comply strictly with Rule 402(b) is harmless."
In reviewing the record and applying the Ellis standard, we conclude that defendant was not entitled to reversal. Defendant makes no claim that the plea was the result of any threats or force and actually claims no prejudice. He simply asserts that the failure of the court record to show, affirmatively, that the plea was not the result of force or threats in itself constitutes reversible error. That contention was rejected in People v. Dudley, 58 Ill.2d 57, 316 N.E.2d 773.
8 From a review of the record, it appears that the plea was voluntary, and on the basis of the Supreme Court precedents referred to, it is clear that there is no reversible error arising for failure to comply with Illinois Supreme Court Rule 402.
For the reasons stated, the judgment of the Circuit Court of Will County is affirmed.
STENGEL and BARRY, JJ., concur.
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464 A.2d 210 (1983)
ARCHITECTURAL WOODCRAFT COMPANY
v.
Lawrence A. READ.
Supreme Judicial Court of Maine.
Argued June 13, 1983.
Decided August 22, 1983.
*211 Jim Mitchell and Jed Davis, P.A. by James E. Mitchell (orally), Augusta, for plaintiff.
Defendant did not appear.
Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS and WATHEN, JJ.
NICHOLS, Justice.
A single set of spiral stairs leads to the complex legal issues now before us. In 1978 the Plaintiff, Architectural Woodcraft Company, a manufacturer of spiral staircases in North Vassalboro, entered a contract with the Defendant, Lawrence Read of Scotts Valley, California, for the construction of such a custom item. The Defendant paid a deposit, and, when the staircase was produced, the Plaintiff shipped it to California, C.O.D. When the staircase arrived, the Defendant paid the shipper by a personal check the balance due. Later discovering that the staircase had sustained damage in transit, the Defendant stopped payment on his check. He has retained the staircase.
In February, 1982, the Plaintiff filed a complaint in District Court, Waterville, seeking damages from the Defendant for breach of contract and conversion. The Defendant did not file an answer.
The Plaintiff duly requested a judgment by default; this was entered by the clerk on May 1, 1982. Approximately three weeks later, the District Court, on its own motion, vacated the judgment by default as improvidently granted because the claim was not for a sum certain.[1]
Next, the Plaintiff moved the District Court for entry of judgment by default. The court, again acting on its own motion, requested the Plaintiff to submit a memorandum of law on personal jurisdiction.
The Plaintiff complied. On June 29, 1982, the District Court entered an order dismissing the complaint for want of personal jurisdiction over the Defendant.[2]
The Plaintiff appealed the order to Superior Court, Kennebec County. Once more, the Defendant did not appear. That court, on December 17, 1982, entered an order denying the appeal and affirming the order of the District Court. The Plaintiff then appealed to this Court.[3] We deny the appeal.
*212 At the threshold we must consider whether the District Court erred in raising sua sponte, and then ruling on, the issue of personal jurisdiction. Unlike subject matter jurisdiction, which may be acted on by the court at any time "by suggestion of the parties or otherwise," M.R.Civ.P. 12(h)(3), personal jurisdiction is normally waived as a defense if it is neither raised by motion nor set forth in a responsive pleading. M.R.Civ.P. 12(h)(1). Consistent with the concept of waiver, a court would not ordinarily be able to raise issues involving personal jurisdiction on its own motion.
Where, however, a defendant has not appeared in an action and where due process issues are generated by the exercise of personal jurisdiction over him, the defense of lack of personal jurisdiction is not waived. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1391 at 203 (Supp.1979); Ellington, Unraveling Waiver By Default, 12 Ga.L.Rev. 181, 183-88 (1978).[4]
If constitutional issues with respect to the assertion of personal jurisdiction survive the nonappearance of a defendant, it follows that a court may properly take cognizance of such issues. It is axiomatic that: "A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere." World-Wide Volkswagen v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); see Pennoyer v. Neff, 95 U.S. 714, 732-33, 24 L.Ed. 565 (1878). It would be anomalous indeed to bar a court from raising an issue regarding the constitutionality of its own assertion of personal jurisdiction when the failure to consider that issue would result in a judgment void ab initio.
We do not read the waiver provision of Rule 12(h) as requiring a court to blithely render void and unconstitutional judgments when it is clear from the record that the court lacks personal jurisdiction over a nonappearing defendant. Therefore, we conclude that the District Court committed no error in raising on its own motion this jurisdictional issue.[5]
The remaining issue on appeal is whether the District Court was correct in its substantive ruling that the contacts between the Defendant and the State of Maine were insufficient to permit the exercise of personal jurisdiction under the Maine long-arm statute, 14 M.R.S.A. § 704-A. Under that statute our sole inquiry is whether the exercise of personal jurisdiction would be constitutional as a matter of due process. Foreside Common Development Corporation v. Bleisch, 463 A.2d 767, 769 (Me.1983); Tyson v. Whittaker, 407 A.2d 1, 3 (Me.1979). We conclude that the District Court correctly ruled that it was without personal jurisdiction over this Defendant.
The only contacts between the Defendant and the State of Maine arose from the purchase of the staircase. There is no allegation by complaint or affidavit that the Defendant ever set foot in Maine or conducted any other business here. The only "affiliating circumstances" of record in *213 this case, World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 566, are that the Defendant ordered the staircase from the Plaintiff, a firm which was located in Maine, and he communicated with the Plaintiff by telephone and mail with respect to that order.
Several recent cases which have involved comparable situations have uniformly concluded that the existence of a single contract with a resident plaintiff coupled with the use of interstate communications does not establish a basis for asserting jurisdiction over a nonresident defendant.[6] We agree with this proposition.
Except in a wholly attenuated sense, the Defendant in this action has not "purposefully avail[ed]" himself of the benefits of conducting activities within this State. World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567; Hanson v. Denckla, 357, U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). We cannot conclude that by ordering the staircase and communicating with Plaintiff, the Defendant was put on notice that he could be haled into a Maine court. World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, Tyson, 407 A.2d at 4. Such ephemeral contacts do not satisfy due process.
The District Court correctly dismissed the complaint, and the Superior Court properly affirmed that dismissal.
The entry is:
Appeal denied.
Judgment affirmed.
All concurring.
NOTES
[1] This ruling by the District Court was correct. The complaint sought both compensatory and punitive damages. Punitive damages are only properly awarded in the discretion of the fact finder after all aggravating and mitigating factors are weighed. Hanover Ins. Co. v. Hayward, 464 A.2d 156, 158 (Me.1983). A clerk cannot enter a default judgment under M.R. Civ.P. 55(b)(1) if punitive damages are requested in the complaint. We need not, and we do not, consider whether the compensatory damages sought by this Plaintiff constituted a "sum certain."
[2] Along with its order the court entered findings of fact and conclusions of law. These stated in part that: "There is no allegation, either by pleadings or by affidavit, that Defendant was ever in Maine or had any contact with Maine other than the ordering of the merchandise." Ultimately, the court concluded that the Defendant's minimum contacts with the State were insufficient to support the exercise of personal jurisdiction under the Maine long-arm statute. 14 M.R.S.A. § 704-A.
[3] Again absent, the Defendant did not submit a brief or argue before this Court. One result of the Defendant's failure to defend this action is that it has waived any challenge to the Plaintiff's capacity to sue. This Court has never recognized the capacity of a limited partnership, as is the Plaintiff, to sue or be sued in its partnership name. See Macomber v. Wright, 35 Me. 156, 157 (1852); Field, McKusick & Wroth, Maine Civil Practice § 4.4 at 65 (2d ed. 1970). The defense of capacity must be raised "by specific negative averment." M.R.Civ.P. 9(a), or it will be deemed to be waived. Gulick v. Board of Environmental Protection, 452 A.2d 1202, 1202-03 n. 1 (Me.1982); Royal Coachman Color Guard v. Maine Trading & Transportation, Inc., 398 A.2d 382, 384 n. 3 (Me.1979).
[4] It is interesting to note that Wright and Miller formerly followed the strict view that constitutional challenges to the assertion of personal jurisdiction were waived even in a default situation. 5 C. Wright & A. Miller, Federal Practice & Procedure § 1391 at 855-57 (1969). Following publication of Professor Ellington's persuasive article, Wright and Miller recognized that nonappearance would not constitute a waiver of constitutional objections to personal jurisdiction. Federal Rule 12(h) discussed in Wright & Miller and M.R.Civ.P. 12(h) are identical.
[5] To the extent that anything we say here is inconsistent with views expressed in Downing v. O'Brien, 325 A.2d 526 (Me.1974), such earlier views no longer have controlling validity.
[6] See Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 655 (8th Cir.1982); Scullin Steel Company v. National Railway Utilization Corp., 676 F.2d 309, 313 (8th Cir.1982); Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica, 614 F.2d 1247, 1253-54 (9th Cir.1980); Cives Corporation v. American Electric Power Company, Inc., 550 F.Supp. 1155, 1158 (D.Me.1982); Fingerhut Gallery, Inc. v. Stein, 548 F.Supp. 206, 210 (D.Minn. 1982); Ruggieri v. General Well Service, Inc., 535 F.Supp. 525, 532-53 (D.Colo.1982).
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473 F.Supp.2d 230 (2007)
Richard Max STRAHAN, Plaintiff,
v.
Steven PRITCHARD, in his official capacity as Secretary of the Massachusetts Executive Office of Environmental Affairs, David M. Peters, in his official capacity as Commissioner of the Massachusetts Department of Fish and Game, and Paul Diodati, in his official capacity as Director of the Massachusetts Division of Marine Fisheries, Defendants.
Civil Action No. 05-10140-NMG.
United States District Court, D. Massachusetts.
January 24, 2007.
*231 *232 Pamela Zorn Adams Sherin and Lodgen LLP, Boston, MA, for New England Legal Foundation.
Steven S. Broadley Posternak, Blankstein & Lund, Boston, MA, for William Adler Massachusetts Lobstermen's Association, Inc.
Amy R. George, Gordon M. Jones, David M. Ryan, Nixon Peabody LLP, Joseph F. Shea, Nutter, McClennen & Fish, LLP, Boston, MA, for Provincetown Center for Coastal Studies.
Srinath J. Govindan, U.S. Department of Justice, Washington, DC, for National Marine Fisheries Service (NMFS).
Daniel J. Hammond, Attorney General's Office, Bryan G. Killian, Massachusetts Attorney General's Office, Boston, MA, for Commissioner David M. Peters.
Gordon M. Jones, III, Nixon Peabody, LLP, Boston, MA, James E. Riley, Jr., Riley & Associates, Walpole, MA, for Secretary Ellen Roy Herzfelder and Director Paul Diodati.
James E. Riley, Jr., Riley & Associates, Walpole, MA, for International Fund for Animal Welfare.
David M. Ryan, Nixon Peabody, LLP, Boston, MA, for Frederick O'Regan.
Joseph F. Shea, Nutter, McClennen & Fish, LLP, Boston, MA, for New England Aquarium and Scott Kraus.
MEMORANDUM & ORDER
GORTON, District Judge.
Conservationist and pro se plaintiff, Richard Max Strahan ("Strahan"), moves for a preliminary injunction enjoining the defendants from continuing to license certain commercial fishing equipment that allegedly entangles whales in violation of 16 U.S.C. § 1538 et seq., the Endangered Species Act ("ESA"). The plaintiff also seeks an order requiring that the defendants hereafter license only fishing gear that poses no significant entanglement threat to whales, that the defendants fund research to develop such gear and that they fund efforts to increase the size of the whale population. The defendants oppose the motion in its entirety.
*233 I. Background
The ESA prohibits persons from causing any harm to endangered animals. Several species of whale inhabiting the North Atlantic Ocean, including those that are the subject of this lawsuit, are classified as endangered under the ESA and are thus entitled to the protection of federal law.
Because whales are incapable of enforcing their own legal rights, Strahan brings this action on their behalf under the "citizen suit" provision of the ESA, 16 U.S.C. § 1540(g)(1), which authorizes any person to commence a civil suit to enjoin a governmental instrumentality that is alleged to be in violation of the conservation provisions of the ESA. The defendants are officers of three Massachusetts state agencies, the Executive Office of Environmental Affairs, the Department of Fish and Game and the Division of Marine Fisheries. Those agencies are collectively responsible for licensing fishing gear deployed in Massachusetts coastal waters, which consist of those waters within three nautical miles of shore as well as a substantial portion of Cape Cod Bay. The plaintiff alleges that fixed fishing gear, including lobster pot and gillnet equipment, causes endangered whales to become entangled in line, thereby injuring or killing the whales in violation of the ESA.
A. Prior Litigation
The issues raised by Strahan in the instant action are nearly identical to those raised more than ten years ago by the same plaintiff in Strahan v. Coxe. 939 F.Supp. 963 (D.Mass.1996)(Woodlock, J.). In that case, United States District Judge Douglas P. Woodlock found that Strahan had standing to pursue his claims and that officers of the subject state agencies were liable for violations of the ESA. Specific, conclusive evidence was introduced demonstrating that nine right whales and one humpback whale had become entangled in fixed fishing gear in Massachusetts coastal waters. Judge Woodlock also found that, in light of the fisheries regulations in place at the time, such "takings" of endangered whales were likely to continue in the absence of injunctive relief.
The plaintiff in that case requested an injunction enjoining the defendants from issuing any new fixed-gear fishing permits in Cape Cod Bay for a certain period of time and an order requiring them to revoke existing fixed-gear permits. Rather than enter the injunctive relief sought by the plaintiff, Judge Woodlock attempted to fashion an injunction that "respects the contours of both the powers and limitations of a federal court and the protection afforded to an endangered species." 939 F.Supp. at 989. He ordered that, inter alia, the defendants develop and prepare a proposal to be submitted to the court to restrict, modify or eliminate the use of fixed fishing gear in coastal waters of Massachusetts in order to minimize the likelihood of additional harm to endangered whales by such gear, and that the defendants convene an Endangered Whale Working Group to engage in substantive discussions with the plaintiff or his designated representative, as well as other interested parties, regarding modifications of fixed fishing gear and other measures to minimize harm to endangered whales. Those steps were taken and the case remained under supervision of Judge Woodlock until it was eventually dismissed by agreement of the parties in January, 2002.
B. The Instant Action
Strahan brings this action on the grounds that, since January, 2002, endangered whales have continued to become entangled in fixed fishing gear despite efforts by the defendants to minimize the number of such entanglements. The plaintiff alleges that the following species *234 of endangered whales have been unlawfully injured or killed by fixed fishing gear: northern right ("right whales"), humpback, fin and blue. Right whales are among the most depleted of whale species, with reportedly fewer than 1,000 such animals remaining in the Atlantic Ocean. All four varieties of endangered whale are known to inhabit Massachusetts coastal waters, including Cape Cod Bay, for portions of each year.
In the amended complaint, the plaintiff alleges three occurrences of right whale entanglements and five humpback whale entanglements in or near Massachusetts waters, between June and November, 2002. The plaintiff specifically alleges that four of those entanglements involved fishing gear licensed by the defendants. The complaint does not allege any specific entanglements of fin whales or blue whales.
1. Requested Relief
The plaintiff filed a motion for preliminary injunction on April 18, 2006, but later, on August 15, 2006, filed the amended complaint seeking slightly different preliminary relief from that requested in the original motion. On November 17, 2006, the Court advised the parties, without objection, that it would treat the relief requested in the amended complaint as the plaintiffs pending motion for a preliminary injunction. The plaintiff, therefore, requests the following preliminary relief:
1) an order enjoining the defendants from further licensing and deployment of the allegedly harmful fishing gear until it has been scientifically certified to pose no risk of danger to protected whales ("whale-safe. gear"),
2) an order requiring the defendants to fund research and development of whale-safe gear and to amend regulations to require only whale-safe fishing gear in the future,
3) an order requiring that the defendants fund efforts to increase the size of the whale population,
4) an award of costs to the plaintiff and
5) any further relief the Court deems appropriate.
2. The Evidentiary Hearing
The Court ordered an evidentiary hearing on the plaintiff's motion for a preliminary injunction. Testimony of seven witnesses was presented on November 17 and 27, 2006 and the parties made closing arguments on November 28, 2006. Prior to the evidentiary hearing, the Court indicated that it would treat evidence presented at that hearing for purposes of both the motion and the underlying action for declaratory judgment. While the plaintiff originally agreed with that proposition, he later objected both in writing and in open court on the first day of the hearing on the grounds that he had not been allowed sufficient discovery for a full presentation of evidence on the merits of the underlying claim.
On November 28, 2006, during closing arguments after the evidentiary hearing, the plaintiff proposed, for the first time, that the Court bifurcate the proceedings by making a determination on the issue of liability under the ESA and then hold a separate proceeding on the subject of appropriate relief. The plaintiff proposed alternative forms of relief, such as setting a date in the future by which the defendants would be required to adopt whale-safe fishing gear or otherwise come into full compliance with the. ESA.
As Judge Woodlock has previously observed, the plaintiff appears pro se perhaps to the detriment of his own cause. While Strahan demonstrates an admirable facility with the law and a true passion for whale conservation, his lack of formal legal training and sometimes abrupt courtroom *235 demeanor have handicapped the prosecution of his claims. Although the Court has repeatedly advised him that he would be well-served to retain counsel, he has declined to do so but is, nevertheless, entitled to his day in court. The Court has done its best to accommodate the plaintiff's presentation and to evaluate the evidence that has been presented in a haphazard manner.
II. Legal Analysis
A. Standard of Review
The test for the issuance of a preliminary injunction under the ESA differs from the traditional test. For cases arising under the ESA, the traditional balancing of the parties' competing interests is not a consideration. Strahan, 939 F.Supp. 963, 989. The statutory language, history and structure of the ESA indicate that Congress intended that endangered species be afforded the highest of priorities. TVA v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The factors to consider, therefore, are 1) the movant's likelihood of success on the merits, 2) the likelihood of irreparable harm in the absence of injunctive relief and 3) the effect on the public interest, bearing in mind that "the balance of hardships and the public interest tips heavily in favor of protected species." National Wildlife Federation v. Burlington Northern R.R., 23 F.3d 1508, 1511 (9th Cir.1994).
B. Likelihood of Success on the Merits
Where the interim relief sought by the plaintiff is essentially the final relief sought, "the likelihood of success [on the merits] should be strong." In re Pye on Behalf of N.L.R.B. v. Sullivan Bros. Printers, 38 F.3d 58, 63 (1st Cir.1994). In the instant case, the preliminary relief requested by the plaintiff is, in essence, identical to the final relief sought. The Court will not, therefore, enter the injunctive relief unless the plaintiff has demonstrated a strong likelihood of success on the merits.
1. Elements of Actionable Claim Under the ESA
The ESA prohibits the "taking" of any wildlife that has been classified as an endangered species. 16 U.S.C. § 1538(a)(1)(B). To "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" an endangered creature. 16 U.S.C. § 1532(19). Under the ESA, injunctive relief cannot issue based solely on the possibility that an endangered species might be disturbed. A plaintiff must show actual harm or harassment. See American Bald Eagle v. Bhatti, 9 F.3d 163, 166 (1st Cir.1993). This Court has previously held that the entanglement of endangered whales in fishing gear constitutes a "taking" under the ESA. Strahan v. Coxe, 939 F.Supp. at 984. In that Strahan case, the Court found that endangered whales had been taken as a result of entanglement in fishing gear that was licensed by the defendants or was in Massachusetts coastal waters. Id.
2. The Licensing System
Chapter 130 of the Massachusetts General Laws vests the Division of Marine Fisheries ("DMF"), of which the defendant Paul Diodati ("Diodati") is the Director, with broad authority to regulate fishing within the coastal waters of the Commonwealth. Pursuant to that authority, DMF requires that virtually all commercial fishing vessels obtain a permit from DMF before they may take fish, including shellfish, from coastal waters. See 322 C.M.R. §§ 7.01-7.05, 8.08. DMF is a division of the Department of Fish and Game ("DFG"), which, in turn, is under the auspices of the Executive Office of Environmental *236 Affairs ("EOEA"). Defendant David M. Peters ("Peters") is the Commissioner of the DMF and defendant Steven Pritchard ("Pritchard") is the Secretary of the EOEA.
Commercial fishermen must obtain separate licenses for fishing in the waters of different jurisdictions. Federal waters, which are those waters more than three miles off shore, are regulated by the National Marine Fisheries Service ("NMFS"). Other states have agencies equivalent to the DMF to license commercial fishing in their own waters. The fishing gear used in each jurisdiction, however, is nearly identical, making it impossible to discern from visible inspection which jurisdiction has licensed that gear. Furthermore, many fishermen obtain licenses to fish in multiple jurisdictions with the same gear, so even being able to identify the fishermen who own the gear does not necessarily reveal the jurisdiction in which it may have been deployed at any given time.
3. The Evidence
The following facts are drawn from evidence presented during three days of hearings on November 17, 27 and 28, 2006. That evidence consists of the testimony of six witnesses called by the plaintiff, one witness called by the defendants, and 23 exhibits.
a. Fixed Fishing Gear
The principal subject of this lawsuit is a category of commercial fishing equipment known as "fixed fishing gear." As defined and used by the parties, the term "fixed fishing gear" describes any sort of fishing equipment that rests on the bottom of the ocean and is attached to a floating buoy by a vertical line, including lobster traps and gillnet gear. Lobster traps, or "pots", are set on the ocean floor and are marked by a floating surface buoy attached to the traps by a line. Lobstermen use such buoys to identify the location of their traps and to haul the traps out of the water. A series of traps set on a "trawl" are typically connected by lengths of rope known as "ground line." Trawls consist of up to 20 traps set many yards apart and fishermen may obtain licenses for up to 40 trawls, or 800 traps. Each trawl is marked by one buoy at either end of the trawl. Because whales can become entangled in any line they encounter in the water, both vertical buoy line and ground line pose a threat of entanglement to endangered whales.
Like lobster pots, gillnet gear is set underwater and is marked on either end by floating buoys attached to vertical lines. The bottom edge of the gillnet is weighted so as to sit on the ocean floor while the top edge floats thus suspending the net upward. Fish swim into the net, are entrapped and caught when fishermen retrieve the nets. Whales can become entangled in the buoy lines and the gillnets themselves, although the actual nets are less frequently the cause of whale entanglements.
b. Evidence of Whale Entanglements
The plaintiff alleges that numerous endangered whales have become entangled in fixed fishing gear set in Massachusetts waters. The testimony demonstrated, however, that it is remarkably difficult to determine where or when a whale becomes entangled and, therefore, to attribute liability for such entanglements. Whales are often discovered with pieces of fishing gear attached to their bodies without any identifying components such as a buoy marked with a license number. That may be a result of happenstance or, as the plaintiff has suggested, it may be the nefarious work of unscrupulous fishermen who successfully obscure any association with a whale entanglement by removing their buoys from entangled whales. Either way, without an identifying marker, it is impossible to determine the owner of a particular piece of fishing gear or line and *237 equally difficult to determine whether that gear was licensed for use in state or federal waters.
It is also difficult to determine where an entanglement actually occurred. Whales are infrequently observed while caught in a stationery piece of fixed fishing gear. Rather, they are more often found swimming free but wrapped in a line or other equipment that has broken free from the rest of the traps or nets underwater. By the time the entangled whale is discovered, it is impossible to know exactly where it first came into contact' with the offending equipment.
The testimony during the evidentiary hearings focused on several specific whale entanglements. A humpback whale was observed to be entangled in the waters off Cape Cod, Massachusetts, on or about August 2, 2006. That whale was disentangled by Scott Landry of the Provincetown Center for Coastal Studies ("PCCS"). Mr. Landry recovered fishing gear attached to the whale, including a mark identifying the fisherman to whom it belonged and passed the gear along to the NMFS. Two documents entered into evidence as Exhibit Nos. 8 and 20 show that the NMFS identified and interviewed the fisherman who owned the offending gear and that, according to the fisherman and his records, the gear had been set in federal waters. The conclusion to be drawn from such evidence is, therefore, that the humpback whale probably became entangled in fishing gear in federal waters, not in Massachusetts waters.
Dr. Michael Moore testified about an entangled humpback whale that was reportedly observed off the coast of Plymouth, Massachusetts, on or about October 1, 2002. The following day, a humpback whale, presumably the same animal, was found dead on the shore of Provincetown. Dr. Moore performed a necropsy analysis on that animal and determined that the entanglement had been a cause of the whale's death. No line or identifying marker, however, was found on that whale and it is, therefore, impossible to determine exactly where the whale had been originally entangled or whether it had been entangled in gear licensed by the defendants.
Testimony also established that a right whale, known as "No. 2212", was disentangled in Cape Cod Bay in September, 1998. Because the case before Judge Woodlock was then still pending, that incident is beyond the scope of consideration for purposes of this action. Dr. Moore also testified regarding a right whale calf that was entangled off the coast of Florida or Georgia in January, 2006. That animal was, quite obviously, not entangled in Massachusetts waters. It was, however, entangled in gillnet gear and evidence with respect to that incident was apparently offered to demonstrate that gillnet gear poses a danger to whales.
The plaintiff's amended complaint alleges that six additional entanglements of either right or humpback whales have occurred since 2002. No testimony was offered with respect to those whales and there is no other evidence on the record to support a conclusion that any of them was entangled in Massachusetts coastal waters or in fishing gear licensed by the defendants.
On December 18, 2006, the plaintiff filed a 36-page final memorandum in support of his motion for a preliminary injunction. That filing was made ten days after the original deadline imposed by the Court and substantially exceeded the ten-page limit set by the Court.[1] In that brief, the *238 plaintiff alleges that humpback whales were observed to be entangled in Massachusetts waters on July 9, 2006 and August 23, 2006. Limited testimony was offered with respect to the first of those incidents and the record does not support a conclusion that either of those incidents involved whales entangled in Massachusetts waters or in gear licensed by the defendants.
In his final memorandum in support of his motion for a preliminary injunction, the plaintiff also refers, for the first time, to 11 additional whale entanglements occurring between 1999 and 2004 and cites reports attached to his filing. Those attachments are not accompanied by an affidavit and were not presented as evidence during the evidentiary hearing. The reports, like other evidence in this case, demonstrate that whales do become entangled in fixed fishing gear in or near Massachusetts coastal waters, but fail to identify exactly where those entanglements occurred and, therefore, fail to establish liability on the part of the defendants.
Because the plaintiff has presented no conclusive evidence demonstrating that protected whales have, since 2002, become entangled in Massachusetts coastal waters or in fishing gear licensed by the defendants, the Court finds that Strahan has not made a "strong showing" of likelihood of success on the merits of his underlying claim that the defendants have violated the ESA. In re Pye, 38 F.3d at 63.
C. Irreparable Harm
For purposes of the pending motion, the Court does not need to resolve definitively the question of whether the defendants are liable for past entanglements but must, nonetheless, consider whether the plaintiff has demonstrated a "strong likelihood" that whales will continue to be taken in violation of the ESA. Strahan, 939 F.Supp. at 984; see National Wildlife Federation, 23 F.3d at 1511.
Evidence before the Court establishes three facts: 1) endangered whales are known to become entangled in fixed fishing gear, 2) fixed fishing gear is licensed by the defendants and deployed in state waters and 3) endangered whales are known to exist in state waters. According to the plaintiff, those three facts lead to the inescapable conclusion that whales will continue to become entangled in fixed fishing gear in Massachusetts state waters. Wherever line and whales share the water, Strahan argues, there is a risk of entanglement, and, therefore, a substantial risk of irreparable harm in violation of the ESA. A recent change in state fishing regulations, however, undermines the plaintiffs contention that whale entanglements are inevitable.
1. Sinking Line
Testimony at the evidentiary hearing established that whales can become entangled in both buoy line and ground line attaching lobster traps in a trawl. As described above, multiple lobster traps in a trawl are connected by ground line. Ground line ordinarily floats. When ground line floats in the water column it presents a threat of entanglement to whales, especially in trawls with many traps. A technological improvement over floating ground line is sinking ground line, which is rope designed to sink to the ocean floor.
A new regulation recently took effect in Massachusetts that makes sinking ground line mandatory in state waters. See 322 C.M.R. 12.04. Several witnesses testified that sinking ground line is a significant, step forward in terms of whale safety. *239 Mr. Scott Kraus said that the use of sinking line would render the risk of ground line entanglements nearly nonexistent. Mr. Scott Landry testified that sinking line is the most risk-averse line available, and Dr. Michael Moore confirmed that the new regulation requiring sinking line is a noteworthy safety advancement.
Massachusetts is the first jurisdiction to require sinking ground line year-round. The federal regulatory scheme allows lobstermen to set traps with sinking ground line even when certain segments of the ocean are closed to other fixed-gear fishing due to whale activity, presumably because the sinking line, in the opinion of federal regulators, poses a low risk to whales.
Sinking line will not eliminate the risk of whale entanglements. Strahan contends that sinking ground line will have minimal effect on the number of whale entanglements because whales are infrequently entangled in ground line in the first place. Vertical buoy line, according to Strahan, is the real threat, and the advent of sinking ground line will have no effect on the presence of vertical line in the water. Three witnesses, however, testified that sinking line will reduce the threat to whales by removing a significant proportion of existing line from the water column.
Given that the sinking ground line regulation only went into effect on January 1, 2007, and that no other jurisdiction has yet required sinking ground line year-round, the recurrence of whale entanglements in Massachusetts waters cannot be accurately predicted. The evidence suggests that such entanglements will become less frequent after the imposition of the new regulation.. Because injunctive relief may be granted only upon a showing that the alleged activity will "actually" (as opposed to "potentially") cause harm to endangered animals, an injunction at this time is not warranted. American Bald Eagle, 9 F.3d at 166.
2. Gillnets and Other Gear
There is evidence on the record that gillnet gear causes whale entanglements. The use of sinking line will not affect the practice of gillnet fishing. Gillnet fishing in Massachusetts coastal waters is, however, already subject to extensive regulation. According to the testimony of several witnesses, gillnet fishing is banned in Cape Cod Bay from January through May of each year, when right whales are most likely to be present in the area. Gillnet fishing is also subject to federally-administered Seasonal Area Management ("SAM") and Dynamic Area Management ("DAM"). Under SAM, gillnet fishing is prohibited in certain areas during certain times of the year that coincide with the presence of endangered whales. Under DAM, a fishing area can be temporarily closed if two or more right whales are observed in a particular area within a two-week time frame. When a DAM fishery closure is ordered, gillnet gear must be removed from the subject waters. Lobster gear must also be removed during a DAM closure, unless sinking ground line is used. The effectiveness of both SAMs and DAMs was debated by witnesses but the record does not indicate that their use is so ineffective as to warrant injunctive relief.
In the absence of more specific evidence that gillnet gear has actually entangled endangered whales or poses to them a significant, ongoing threat, the Court will not, at this time, enjoin the use of gillnet gear. Unless and until it is demonstrated that SAMs and DAMs are deficient methods of protecting endangered whales from gillnet gear, the Court defers to the experience and judgment of trained marine regulators.
3. Whale-Safe Gear
The plaintiff contends that whales could be spared further irreparable harm if only *240 the defendants developed and implemented so-called whale-safe fishing gear, or fishing equipment designed to pose as little a risk of entanglement to whales as possible. Sinking ground line, as discussed above, is one example of such a technological improvement in equipment. The plaintiff contends, however, that sinking line will not significantly reduce whale entanglements and that other technologies are feasible and that the Court should require that they be implemented by the defendants.
With respect to the alternative remedy suggested by the plaintiff during his closing argument and in his final memorandum in support of his motion for preliminary injunction, the plaintiff emphasizes that rather than suspend all licensing and further fishing with fixed gear, the Court should require the defendants to compel the use of whale-safe fishing gear on or before some future date. He argues that invention needs a "necessary mother" to put pressure on research and development of such technology, which, he asserts, will not occur in the absence of judicial fiat.
The evidence suggests that on-going, efforts are underway to develop whale-safe fishing gear but that few designs have yet proved practicable. The plaintiff called Clifford Gaudy to testify regarding his invention of a potentially whale-safe buoy. Mr. Gaudy, who is an engineer affiliated with the Massachusetts Institute of Technology, has devised a buoy that is less likely to entangle whales if caught in their baleen or on their appendages. Mr. Kraus, however, testified that the Gaudy buoy is of limited value. He described numerous potential improvements in fishing gear, from mundane solutions such as line with weak links to futuristic proposals such as line that glows or is soluble if embedded in the blubber of a large whale. None of those improvements has been shown to be a practical alternative to current fishing equipment.
The Court is not prepared to order governmental agencies to develop or implement whale-safe fishing gear without regard to cost or practicality. The record indicates that there are scientists, such as Mr. Gaudy, hard at work inventing and refining such equipment, and the Court will not interfere with their creativity or impose arbitrary deadlines for the implementation of non-existent technology. The Court expects, however, that the defendants will continue to monitor developments in the field of fishing technology, and, as with sinking ground line, consider enforcing the use of any technology that is feasible, practical and effective in promoting whale safety.
D. Effect on the Public Interest
The presumption in cases arising under the ESA is that the balancing of harms and effect on the public interest tips in favor of protecting the endangered animals. See National Wildlife, 23 F.3d at 1511. A thorough analysis of the effect of the requested relief on the public interest, therefore, is neither warranted nor appropriate. In his motion for a preliminary injunction the plaintiff seeks extraordinarily broad relief, i.e. that the Court enjoin the defendants from all further licensing of fixed fishing gear and require all persons currently using fixed gear to immediately remove such gear from coastal waters. The New England Legal Foundation ("NELF") has filed a brief as amicus curiae pointing out the obvious detrimental impact that such an order would have on the Massachusetts fishing industry. It persuasively suggests that the requested injunction would be devastating to the livelihood of fishermen and to the survival of their communities.
*241 During closing arguments and in his final memorandum in support of the motion for a preliminary injunction, however, Strahan proposed an alternative form of injunctive relief. He urges the Court to set a deadline in the future by which time the defendants will be obliged to implement improved fishing technology to minimize the potential for whale entanglement. He suggests that such an order would have a less dramatic impact on the public interest.
The Court is not persuaded that the defendants are liable for entanglements of endangered whales 1) in Massachusetts waters or 2) in fishing gear licensed by the defendants but it is convinced that such gear poses an ongoing (even if declining) threat to endangered whales. The law prohibits the taking of endangered species under any circumstances and entanglement in fixed fishing gear constitutes a "taking." In light of newly-implemented regulations prohibiting the use of floating ground " line, the broad injunctive relief sought by the plaintiff is unwarranted at this time but careful monitoring of the situation is, indeed, justified. Consistent with the equitable powers conferred by 16 U.S.C. § 1540(g)(1), the Court will enter an order that will ensure the temporary monitoring of the threat posed to endangered whales by fixed fishing gear without unduly disrupting the commercial fishing industry.
ORDER
In accordance with the foregoing, the plaintiff's motion for preliminary injunction (Docket No. 80) is DENIED.
This action will be stayed for a period of two years. The parties are directed to file joint status reports on October 1, 2007, July 1, 2008 and February 1, 2009 informing the Court whether, since the date of this order:
1) any endangered whales have become entangled in fixed fishing gear in Massachusetts coastal waters and/or in fixed fishing gear licensed by the defendants,
2) the requirement to use sinking ground line in lobster trawls, pursuant to 322 C.M.R. 12.04, has been effectively enforced with respect to the commercial lobster fleet,
3) any noteworthy advances in the development of whale-safe technology have been made, and
4) there have been any amendments to state procedures for obtaining commercial fishing licenses that are intended to affect the safety of endangered whales.
The Court will give further consideration to the underlying claim for declaratory judgment at the conclusion of the stay imposed hereby or upon motion of the parties should there be a material change in circumstances.
So ordered.
NOTES
[1] The plaintiff did, however, seek and receive leave to file a memorandum after the original filing deadline and in excess of the page limit. The defendants filed their final memorandum in accordance with the Court's original order.
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137 F.3d 683
157 L.R.R.M. (BNA) 2460
FEDERAL LABOR RELATIONS AUTHORITY, Petitioner,v.U.S. DEPARTMENT OF JUSTICE, Washington, D.C., U.S.Department of Justice, Immigration and NaturalizationService, New York District, New York, and Department ofJustice, Office of the Inspector General, Washington, D.C.,Respondents.
Docket No. 97-4001.
United States Court of Appeals,Second Circuit.
Argued Feb. 18, 1997.Finally Submitted March 20, 1997.Decided Sept. 25, 1997.Modified on Petition for RehearingFeb. 5, 1998.
David M. Smith, Solicitor, Washington, DC (William R. Tobey, Deputy Solicitor, Ann M. Boehm, Federal Labor Relations Authority, Washington, DC, on the brief), for petitioner.
Howard S. Scher, Dept. of Justice, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., William Kanter, Dept. of Justice, Washington, DC, on the brief), for respondents.
Before: NEWMAN, KEARSE and FRIEDMAN,* Circuit Judges.
JON O. NEWMAN, Circuit Judge:
1
This application to enforce an order of the Federal Labor Relations Authority ("FLRA" or the "Authority") concerns the Federal Labor-Management Relations Act ("FLMRA"),1 5 U.S.C. §§ 7101-7135 (1994). The issue presented is whether the FLRA correctly ruled that the Office of the Inspector General ("OIG") of the United States Department of Justice ("DOJ") committed an unfair labor practice in violation of the FLMRA by refusing the request of employees of the New York office of the Immigration and Naturalization Service ("INS-NY") to have a union representative present during questioning by OIG agents. The application also presents the preliminary issue of whether the authority of the FLRA to apply the FLMRA to interrogation by OIG agents may be challenged in this enforcement proceeding even though such a challenge was not made before the FLRA after an adverse ruling by an Administrative Law Judge ("ALJ").
2
These issues arise on the FLRA's application to enforce its July 30, 1996, order determining that unfair labor practices were committed by the OIG, the DOJ, and the INS-NY. We conclude that the FLRA lacks authority to require an Inspector General to permit federal employees to have a union representative present during questioning except in those rare instances where an OIG agent is conducting interrogation of the sort traditionally performed by agency supervisory staff in the course of carrying out their personnel responsibilities and not interrogating for bona fide purposes within the authority of an Inspector General. We also conclude that we have jurisdiction to make that ruling in this proceeding. We therefore deny the application for enforcement.
Background
3
In November 1994 and January 1995, special agents of the OIG of the DOJ sought to question three INS inspectors working at John F. Kennedy International Airport concerning various matters, including an allegation of accepting bribes. In August 1995, OIG agents sought to question three detention officers working at the INS Processing Center in New York City concerning alleged violations of the INS District Director's policy prohibiting detention enforcement officers from purchasing or carrying personal firearms. Some of the INS officers ordered to report for questioning requested union representation at their interrogations. The OIG agents rejected these requests.
4
The employees' union filed unfair labor practice ("ULP") charges, and the Boston Region of the FLRA issued a notice of complaints and a notice of hearings, alleging that OIG, DOJ, and INS-NY had committed ULPs. After a consolidated hearing, an ALJ found that the OIG had committed a ULP by prohibiting the attendance of a union representative during questioning of employees. See U.S. Department of Justice et al., 1996 WL 560250, at * 1 (F.L.R.A. July 30, 1996) ("DOJ-INS-NY "). The ALJ also found that the DOJ had committed a ULP by failing to exercise its supervisory authority over the OIG, and that the INS-NY had committed a ULP by failing to inform its employees that they could insist on the attendance of a union representative. The ALJ ordered the three respondents to cease and desist from denying INS employees their right to union representation during interrogation by OIG agents, and also ordered various forms of affirmative relief.
5
The respondents did not file exceptions with the FLRA. As a result, on July 30, 1996, the FLRA entered an order adopting the ALJ's findings, conclusions, and decision and order. See id.; 5 C.F.R. § 2423.29(a) (1997). Thereafter, the FLRA applied to this Court for enforcement of its July 30, 1996, order. After consideration of the respondents' answer to the application, which contested the FLRA's jurisdiction to issue the order, we requested and received briefs from the parties.
Discussion
I. Statutory Framework
6
The FLMRA provides generally for collective bargaining between federal agencies and elected representatives of appropriate units of such agencies. See 5 U.S.C. §§ 7111-7114. Excluded from the definition of an "appropriate" unit is one that includes
7
any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.
8
Id. § 7112(b)(7).2 Employees of the OIG are within this exclusion and therefore cannot be members of an appropriate collective bargaining unit. The parties do not appear to dispute that OIG employees are excluded from collective bargaining, though, as we discuss below, they disagree on whether the exclusion of OIG employees from collective bargaining on their own behalf renders them exempt from certain provisions that guarantee protections to other employees who are subject to collective bargaining.
9
Among the rights accorded a labor organization that has been recognized as the exclusive representative of the employees of an appropriate unit is the right to be represented at "any examination of an employee in the unit by a representative of the agency " if the employee "reasonably believes that the examination may result in disciplinary action against the employee" and requests representation. Id. § 7114(a)(2)(B) (emphasis added).3 This protection is the so-called Weingarten provision of the FLMRA, paralleling a right of private sector employees guaranteed by section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (1994). See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975) (upholding NLRB's interpretation of section 7). An agency's denial of the rights protected by the FLMRA is an unfair labor practice, 5 U.S.C. § 7116(a), which may be remedied by the FLRA, id. § 7118.
II. Jurisdiction
10
The FLRA contends that this Court lacks jurisdiction to consider the respondents' contention that agents of the OIG are not "representatives of the agency" within the meaning of section 7114(a)(2)(B) because no exceptions to the ruling of the ALJ were made before the FLRA. It relies on 5 U.S.C. § 7123(c):
11
No objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.
12
The respondents reply that exceptional circumstances are present in that the FLRA's prior rulings with respect to questioning by OIG agents rendered futile any attempt to persuade the Authority that OIG agents are not "representatives of the agency" within the meaning of section 7114(a)(2)(B).
13
In considering these contentions, we note that the Department of Justice, which is normally quick to assert that private litigants have forfeited their claims on the merits for lack of exhaustion before administrative agencies, has approached this proceeding in a somewhat cavalier manner. First, the DOJ elected not to file with the Authority exceptions to the ALJ's ruling, thereby letting that ruling become the Authority's final decision. Then, the DOJ elected not to pursue its statutory opportunity to petition this Court for review of the Authority's ruling within 60 days. See 5 U.S.C. § 7123(a). Instead, the DOJ waited until the FLRA brought this enforcement proceeding, more than five months after the Authority's July 30, 1996, final decision,4 and only now asserts its opposition to that decision.
14
Though the DOJ's tactic is both at variance with what it normally demands of private litigants when it has prevailed on the merits, and also entailed the risk of forfeiting its position on the merits, we conclude, with no enthusiasm, that we have jurisdiction to consider the merits. First, we have previously ruled that the "extraordinary circumstances" exception to section 7123(c) excuses a litigant from presenting an issue to the FLRA where doing so would be futile.5 See Overseas Education Association, Inc. v. FLRA, 961 F.2d 36, 38 (2d Cir.1992). The FLRA has previously made clear its position that section 7114(a)(2)(B) applies to questioning by OIG agents, on the theory that OIG agents are "representatives" of the DOJ, which the FLRA regards as the "agency" for purposes of the Weingarten provision. See United States Department of Justice Office of the Inspector General Washington, D.C., et al., 47 F.L.R.A. 1254, 1261 (F.L.R.A.1993); see also Headquarters National Aeronautics and Space Administration Washington, D.C., et al., 50 F.L.R.A. 601, 612 (F.L.R.A.1995) ("NASA ") ("The Authority has long held that an OIG investigator can, under certain circumstances, be a 'representative of the agency' within the meaning of section 7114(a)(2)(B) of the [FLMRA].") (emphasis added), petition for enforcement granted sub nom. FLRA v. National Aeronautics and Space Administration, 120 F.3d 1208 (11th Cir.1997) ("FLRA/NASA "). The respondents were not required to urge the FLRA to abandon this fully considered position.
15
Second, even though the respondents declined to petition for review, we have jurisdiction, upon the FLRA's petition for enforcement, "of the proceeding and of the question determined therein," 5 U.S.C. § 7123(c). The District of Columbia Circuit has ruled that this provision permits a court considering the Authority's enforcement petition to review a respondent's otherwise available contentions despite the lack of a petition for review. See FLRA v. United States Department of Commerce, 962 F.2d 1055, 1057-59 (D.C.Cir.1992). As the D.C. Circuit has noted, the FLRA's judicial review statute does not contain the language of other agencies' review provisions that specify that, in the absence of a timely petition for review, an agency order " 'shall be conclusive in connection with any petition for enforcement which is filed' " by the agency. See id. at 1058 (quoting 29 U.S.C. § 660(b) (review provision for Occupational Safety and Health Commission)).
16
We therefore proceed to consider the merits.
17
III. Is Questioning by OIG Agents Subject to Section 7114(a)(2)(B)?
18
Section 7114(a)(2)(B) requires an opportunity for a union representative to be present at questioning of an employee by "a representative of the agency." The quoted words raise two issues: (a) what entity is the pertinent "agency" and (b) is an OIG agent a "representative" of the pertinent "agency?"
19
(a) Which is the "agency"? In the pending case, any one of four entities could arguably be the "agency" for purposes of section 7114(a)(2)(B)--the INS-NY (the immediate unit in which the interrogated employees work), the INS (the entity in which the INS-NY is located), the DOJ (the entity in which the INS is located), or the OIG (the entity whose agents conducted the interrogations).
20
The FLMRA defines "agency" to mean "an Executive agency," FLMRA § 7103(a)(3), with certain specified exceptions, among which are the Federal Bureau of Investigation, id. § 7103(a)(3)(B), and the Central Intelligence Agency, id. § 7103(a)(3)(C). Elsewhere in Title 5 of the United States Code, in which the FLMRA is located, "Executive agency" is defined to mean, for purposes of Title 5, "an Executive department, a Government corporation, and an independent establishment." 5 U.S.C. § 105. The "Executive departments" are listed at 5 U.S.C. § 101. The list includes the Department of Justice, but not its constituent components. Id. The definition of "Government corporation," id. *689s 103, does not even arguably apply to any entity involved in this proceeding.
21
"Independent establishment" is defined, rather unhelpfully, to mean:
22
(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and
23
(2) the General Accounting Office.
24
Id. § 104 (emphasis added).
25
Whether this definition of "independent establishment" includes the OIG of a cabinet department is a matter on which three Circuits have divided. The District of Columbia Circuit has concluded that the OIG of the DOJ "plainly qualifies as an 'agency' because it is an 'independent establishment' and 'not an Executive department' (5 U.S.C. § 104(1))." United States Department of Justice v. FLRA, 39 F.3d 361, 365 (D.C.Cir.1994) ("DOJ/FLRA "). The Third Circuit has interpreted the definition quite differently, reasoning that " '[i]ndependent establishments' are defined by 5 U.S.C. § 104 in such a way as to exclude any Executive departments or parts thereof." Defense Criminal Investigative Service v. FLRA, 855 F.2d 93, 98 (3d Cir.1988) (emphasis added) ("DCIS/FLRA "). Based on this interpretation, the Third Circuit upheld the FLRA's view that the pertinent "agency" in a dispute similar to ours was the Department of Defense ("DOD"), and not the component of DOD where the investigated employee worked, the Defense Logistical Agency, nor, apparently, the component where the investigating employee worked, the Defense Criminal Investigative Service, a DOD subdivision under the authority of the OIG of the DOD. See id. The Eleventh Circuit has also held that the pertinent "agency" was the parent agency (NASA) in which the component that employed the interrogated employees was located. See FLRA/NASA, 120 F.3d at 1213.
26
On this aspect of the pending controversy, we agree with the Third and Eleventh Circuits. The definition of "independent establishment" excludes "parts" of an Executive department, 5 U.S.C. § 104(1), and the OIG of the DOJ therefore cannot be an "independent establishment," as the D.C. Circuit believed. Since the OIG is not an "independent establishment" and clearly not an Executive department or a Government corporation, it is not an "Executive agency" and therefore not an "agency" within the meaning of the definitional section of the FLMRA.
27
The DOJ contends that the "agency" within the meaning of section 7114(a)(2)(B) is "the agency or agency component that engages in collective bargaining." Brief for Respondents at 19 (emphasis in original). Though the DOJ is certain that that entity is not the OIG, it is not clear as to whether it believes the pertinent entity is the INS-NY, the INS, or the DOJ. The collective bargaining agreement, which we asked the parties to make available to us, indicates that it was executed, on behalf of management, by the INS. The ALJ in the pending case (and the FLRA by adopting the ALJ's ruling) took the position that the "agency" for purposes of section 7114(a)(2)(B) is the parent entity in which the immediate unit employing the interrogated employees is located.6 See DOJ-INS-NY, 1996 WL 560250, at * 8; see also NASA, 50 F.L.R.A. at 612. That parent entity in this case is the DOJ.
28
We agree with the Third and Eleventh Circuits that the pertinent agency for purposes of section 7114(a)(2)(B) is the department or parent agency employing the interrogated employees (here, the DOJ). See DCIS/FLRA, 855 F.2d at 98-100 (pertinent agency is Department of Defense); FLRA/NASA, 120 F.3d at 1213 (pertinent agency is NASA). That conclusion comports with the statutory definition of "agency."7
29
(b) Is an OIG agent a "representative" of the agency? The closer question is whether an OIG agent questioning employees of a bargaining unit located within the DOJ can be considered a "representative" of the DOJ for purposes of section 7114(a)(2)(B). The DOJ takes the position that since personnel of the OIG are within the category of employees who may not be included within an appropriate collective bargaining unit, see 5 U.S.C. § 7112(b)(7), "the only proper conclusion is that the OIG is not subject to the [FLMRA] in any respect," see Brief for Respondents at 14 (emphasis added), and therefore the requirements of section 7114(a)(2)(B) cannot be imposed upon OIG agents. We consider that argument flawed. Congress could well have decided that OIG agents should not be included in bargaining units and yet also have decided that when OIG agents interrogate employees who enjoy the protections of the FLMRA in general and a collective bargaining agreement in particular, the interrogating agents must permit the attendance of a union representative.
30
The Third and Eleventh Circuits have ruled that an OIG agent employed by a cabinet department (DOJ) or an agency (NASA) is a "representative of the agency" within the meaning of section 7114(a)(2)(B). See DCIS/FLRA, 855 F.2d at 100; FLRA/NASA, 120 F.3d at 1213. The D.C. Circuit has ruled that section 7114(a)(2)(B) does not apply to interrogation by an OIG agent, see DOJ/FLRA, 39 F.3d at 364-68, a conclusion premised on that Circuit's view that only the OIG itself, rather than the parent cabinet department, might be the "agency" for purposes of section 7114(a)(2)(B), id. at 365.
31
In our view, determining whether an OIG agent is a "representative" of the DOJ for purposes of section 7114(a)(2)(B) requires some resolution of the tension between the FLMRA and the Inspector General Act of 1978, 5 U.S.C. app. 3 §§ 1-12 (1994) ("IGA"). A purpose of the FLMRA is to "prescribe certain rights and obligations of the employees of the Federal Government," 5 U.S.C. § 7101(b), and a purpose of the IGA is "to create independent and objective units ... to conduct and supervise ... investigations relating to the ... operations of [federal entities including the DOJ]," 5 U.S.C. app. 3 § 2(1). Subjecting all OIG interrogations of federal employees to all aspects of FLMRA protections would risk impairing the "independent" investigations that OIGs were created to conduct. At the same time, we do not think Congress would have wanted the Weingarten protection of the FLMRA to be circumvented by a request from an agency head to have an OIG agent conduct an interrogation of the sort normally handled by agency personnel, an interrogation beyond the scope of OIG functions.8 We therefore conclude that whether an OIG agent is a "representative" of the DOJ for purposes of section 7114(a)(2)(B) depends on the context in which the interrogation arises. So long as the OIG agent is questioning an employee for bona fide purposes within the authority of the IGA and not merely accommodating the agency by conducting interrogation of the sort traditionally performed by agency supervisory staff in the course of carrying out their personnel responsibilities, the OIG agent is not a "representative" of the employee's agency for purposes of section 7114(a)(2)(B).
32
Just as an FBI agent questioning a DOJ employee concerning the employee's alleged criminal conduct would be a "representative" of the DOJ for some purposes, but not for the purposes of section 7114(a)(2)(B), an OIG agent, pursuing bona fide IGA functions, is similarly not limited by the Weingarten provision. Thus, we do not agree with the Third and Eleventh Circuits that section 7114(a)(2)(B) applies to questioning by an OIG agent simply because the inquiry concerns "possible misconduct" of employees "in connection with their work," DCIS/FLRA, 855 F.2d at 100, or because the information obtained might be used "to support administrative or disciplinary actions," FLRA/NASA, 120 F.3d at 1213. In DCIS/FLRA, the interrogated employees were suspected of shooting through the window of the home of a supervisor, see DCIS/FLRA, 855 F.2d at 95, and in FLRA/NASA, of planning violence against co-workers, FLRA/NASA, 120 F.3d at 1210.
33
The pending case involves interrogation about matters within the scope of bona fide functions of the IGA, and there is no indication that OIG agents were called in merely to conduct questioning normally undertaken by DOJ supervisory personnel. One set of employees was questioned about allegations of serious criminal offenses, including the acceptance of bribes. The other set of employees was questioned about violations of the INS District Director's policy prohibiting INS detention enforcement officers from purchasing or carrying personal firearms. We therefore conclude that section 7114(a)(2)(B) was inapplicable to the interrogation of any of the INS employees questioned in this case, and that none of the respondents committed a ULP.
34
In ruling that the applicability of section 7114(a)(2)(B) turns on the scope of the interrogation, we make no ruling as to whether OIG agents must specify in advance the subject matter of their interrogation. Our ruling means that the OIG agents disregard the Weingarten protections at their peril: if it is later determined that the inquiry concerned matters beyond the scope of IGA functions, the OIG risks a finding of an unfair labor practice and a possible prohibition against taking action against the employees on the basis of the interrogation.9 In view of the broad scope of IGA functions, however, the risk that questioning by an OIG agent without the presence of a union representative would violate section 7114(a)(2)(B) seems remote.
Conclusion
35
For these reasons, the FLRA's petition for enforcement is denied.
*
The Honorable Daniel M. Friedman of the United States Court of Appeals for the Federal Circuit, sitting by designation
1
The FLMRA is sometimes referred to as the Federal Service Labor-Management Relations Statute or "FSLMRS."
2
The structure of this provision unfortunately creates a slight ambiguity concerning the referent of the pronoun "whose." Normally, a referent is the closest preceding noun. See Oneida Indian Nation v. New York, 860 F.2d 1145, 1167 (2d Cir.1988). However, the pronoun in this instance likely refers to people, and reading the referent to be "agency" would make no sense. If the referent of "whose" is the next closest preceding noun, "individuals," the provision would exclude only an employee investigating those individuals whose duties affect the internal security of the agency, an unlikely category to be identified. A more reasonable interpretation is that the referent of "whose" is "employee," which means that the provision excludes any employee (a) who is primarily engaged in investigating agency employees and (b) whose duties directly affect the internal security of the agency
3
The FLMRA provides:
(a)(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at--
...
(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if--
(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and
(ii) the employee requests representation.
5 U.S.C. § 7114(a)(2)(B).
4
The FLMRA sets no time limit for the Authority's enforcement petition. See 5 U.S.C. § 7123(b); cf. Buchanan v. NLRB, 597 F.2d 388, 392 (4th Cir.1979) (no precise time limit for petition to enforce NLRB order)
5
In permitting a merits contention, previously rejected by an agency, to be contested in this Court despite lack of presentation to the agency, we have not overlooked the Supreme Court's decision in United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952). Though the Court used rather broad language to assert that presentation of contentions to the agency is required "as a general rule" in order to obtain judicial review, that case involved a technical objection (defect in the manner of appointing a hearing examiner) totally unrelated to the merits. We do not understand that decision to have eliminated the "futility" doctrine, which we invoked in Overseas Education Association, Inc. v. FLRA, 961 F.2d 36, 38 (2d Cir.1992)
6
In seeking to enforce the FLRA's order in this Court, the Authority has advanced only its jurisdictional arguments and has refrained from expressing any view on the merits "at this time." See Reply Brief for Petitioner at 10. Our surprise at the DOJ's tactic of not pressing its position on the merits either by filing an objection to the ALJ's ruling before the FLRA or by filing a petition for review with this Court is matched by our surprise at the Authority's suggestion that, despite our request for briefing, it believes it will have some later time to present its views on the merits, even though we are considering its petition for enforcement of its order. In any event, after the filing of our initial opinion, the FLRA's petition for rehearing has fully informed us of its views on the merits
7
To this extent, we disagree with the D.C. Circuit, which concluded that the DOJ was not the "agency" within the meaning of section 7114(a)(2)(B) because, in the case reviewed by that Court, the FLRA had dismissed the DOJ as a respondent on the ground that it was not responsible for the OIG's violation. See DOJ/FLRA, 39 F.3d at 365. The fact that the DOJ might not have acted in such a way as to be responsible for an unfair labor practice that the FLRA believed the OIG had committed is no indication that the DOJ is not the pertinent "agency" for purposes of determining whether an OIG agent is a "representative" of the "agency" within the meaning of section 7114(a)(2)(B)
8
The DOJ seeks to minimize the risk of such possible circumvention by pointing out that an agency could not assign an interrogation task to an OIG agent. See Respondent's Response to Petition for Rehearing at 10 ("Response"). Though the IGA prohibits "transfer" of "program operating responsibilities" by an agency head to an OIG, see 5 U.S.C. app. 3 § 9(a)(2), an agency head remains free to "request" an investigation, as the DOJ acknowledges, see Response at 10. However unlikely it might be, such a request could provide an opportunity to overstep the legitimate purposes of the IGA and circumvent the Weingarten protection of the FLMRA
9
One element of the FLRA's remedy order in this case is to prohibit the respondents from "tak[ing] disciplinary or other action against [the interrogated employees] as a result of any information acquired as a result of their examinations by agents of the Office of the Inspector General." See DOJ-INS-NY, 1996 WL 560250, at * 9. We intimate no views on whether this provision would be valid in a case to which section 7114(a)(2)(B) applied
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670 F.2d 185
*U. S.v.Olson
81-7148
UNITED STATES COURT OF APPEALS Eleventh Circuit
2/19/82
1
M.D.Ala.
AFFIRMED
2
---------------
* Fed.R.App. P. 34(a); 11th Cir. R. 23.
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778 F.Supp. 925 (1991)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff,
v.
Robert Shane BREWER, et al., Defendants.
Linda Lehmann CASSAGNE, Administratrix of the Estate of Alain Cassagne, Defendant/Third Party Plaintiff,
v.
MIDWESTERN INDEMNITY COMPANY, Third Party Defendant.
Civ. A. No. 90-499.
United States District Court, E.D. Kentucky, at Lexington.
September 23, 1991.
*926 E. Douglas Stephan, Geralds, Moloney & Jones, Lexington, Ky., for plaintiff.
Mark J. Hinkel, Landrum & Shouse, Lexington, Ky., for defendant Robert Shane Brewer.
William D. Kirkland, McBrayer, McGinnis, Leslie & Kirkland, Frankfort, Ky., for defendant PAFCO General Ins. Co.
Christopher J. Meling, Covington, Ky., Henry C. Prewitt, Paris, Ky., for intervening defendant Linda Lehmann Cassagne.
Perry Bentley, Stoll, Keenon & Park, Lexington, Ky., for third party defendant Midwestern Indem. Co.
MEMORANDUM OPINION AND ORDER
WILHOIT, District Judge.
This matter is before the Court upon the motion of the plaintiff, State Farm Mutual Automobile Insurance Company, for leave to deposit $25,000.00 into the Court's registry, and upon briefing by the parties on pursuant to the court's Order of March 29, 1991, directing the parties to file status reports on the applicability of Allstate Ins. Co. v. Mercier, 913 F.2d 273 (6th Cir.1990) to the case at bar to the extent that declaratory relief has been requested.
BACKGROUND
According to the complaint, this action arises out of a dispute between defendant Brewer and the Cassagne Estate as to whether Brewer or Alain Cassagne was the driver of a vehicle insured by the plaintiff at the time of a one-car accident involving the Brewer vehicle, which was occupied by Brewer and Cassagne. Cassagne died as a result of the accident. Both defendants claim that it was the other who was driving at the time of the accident and seek indemnity from the plaintiff for the resulting loss. Both Brewer and Linda Lehmann Cassagne, Administratrix of the Estate of Alain Cassagne, [hereinafter "defendant Cassagne" or "the Estate"] have filed a claim as plaintiff's insured for damages. PAFCO is named as a defendant because it "may also claim a lien or have an interest in the proceeds of the policy ... as a result of affording coverage to Alain Cassagne pursuant to an auto liability policy issued to Alain Cassagne." First Amended Complaint at ¶ 12 (DE # 25).
Plaintiffs liability policy would cover Brewer, the insured owner of the vehicle, if he was the passenger and Alain Cassagne was the insured permissive driver, and it would cover Cassagne if Brewer was driving. The policy also provides that the plaintiff would not be obligated to pay any claim or judgment, or to defend any suit after the applicable limit of its liability had been exhausted by payment of judgments or settlements.
In its prayer for relief in the complaint, the plaintiff sought to pay into the registry of the court, $50,000.00, a sum it claimed was equal to the policy limits. According to the first amended complaint, the policy would afford coverage in the amount of $50,000 for the payment of all sums which the insured becomes legally obligated to pay, if the insured driver was defendant Brewer. If the insured driver was Alain Cassagne, a permissive user, the maximum liability coverage for injuries to defendant Brewer would be $25,000.
Plaintiff also seeks discharge from further liability to any claimants, as well as issuance of permanent injunction against all parties from instituting any proceedings in any court, federal or state, against this defendant for the recovery of all or part of the coverage of said policy which is before the Court. Should the Court exercise jurisdiction over this interpleader action and award the relief sought, the complaint contemplates that in the second stage of the proceeding the Court would decide which of the individual defendants is entitled to the deposited funds. To make this determination, *927 the question of who was driving the car would have to be resolved.
The defendant Cassagne has filed a counterclaim for policy limits of $50,000.00 on liability for personal injury, plus the full amount of applicable underinsurance available under the policy. She has also filed a cross-claim against defendant Brewer for wrongful death, as well as a cross-claim against defendant PAFCO, Alain Cassagne's automobile insurance carrier, for the proceeds of the underinsurance provisions of that policy. She seeks a declaration of rights under the two insurance policies, as well as damages from defendant Brewer.
The Court takes notice that defendant Cassagne filed a wrongful death suit in Bourbon Circuit Court after the filing of the instant action.
Defendant Brewer filed a cross-claim against defendant Cassagne for negligent operation of his automobile, for which he claims compensatory and punitive damages. In his counterclaim against the plaintiff, defendant Brewer claims applicable personal injury liability benefits, $15,000 in property damage for the destruction of his automobile, and he seeks a declaration of underinsurance coverage.
The defendant PAFCO filed a counterclaim and a cross-claim, by which it seeks to deposit its policy limits and to obtain a declaration of rights that it has no further obligation to the claimants. It also asks the Court to determine that the plaintiff be deemed the primary insurance carrier, and that it be ordered to reimburse PAFCO for any defense costs, including reasonable attorney fees. Finally, it asks the Court to determine who was driving the automobile at the time of the subject accident.
The defendant Cassagne filed a third-party complaint against Midwestern Indemnity Company for underinsured motorist benefits under the household insurance policy of Linda Lehmann Cassagne.
PROCEDURE
Simultaneously with filing for interpleader and injunctive relief, the plaintiff filed a motion for leave to deposit $50,000 into the Court registry. The Court entered the plaintiffs proposed order on December 4, 1990. In addition to ordering that the $50,000 be deposited, the Order also stated that the sum represented the full liability limits under the applicable policy of insurance, and that the plaintiff had no further obligation under the policy to either defendant, Brewer or the Estate. The parties filed separate motions to amend the December 4 "judgment." By Order dated March 29, 1991, this Court further detailed the events of the original tender of deposit into the Court registry, and for the reasons stated therein, set aside the December 4 order. The Court granted leave to the plaintiff to move to deposit funds when the plaintiff was able to take a position on the applicable policy limits.
Plaintiff moves by its instant motion to deposit $25,000 into the Court's registry, but it makes no claim as to whether this amount represents the full policy limits. The declarations page of the applicable insurance policy, an exhibit to the first amended complaint, states the limits of liability for bodily injury as follows: $50,000 each person; $100,000 each accident. The limits of liability for property damage for each accident is $50,000.
The defendant Cassagne filed a response in which she states that she has no objection to the deposit.
APPLICABILITY OF MERCIER
The undersigned directed the parties to brief the applicability of Allstate Ins. Co. v. Mercier, 913 F.2d 273 (6th Cir.1990) in view of the request for declaratory relief by the parties. In Mercier, a wrongful death suit was brought in state court against social hosts who supplied alcoholic beverages to an underage guest, who later drove while intoxicated and collided with the deceased. The hosts' homeowners insurance carrier defended in state court under a reservation of rights. The insurance company then brought its declaratory judgment action in federal court seeking a determination that it was not liable for providing a defense or for damages because of policy exclusions. The district court entered *928 summary judgment for the insurance company.
On appeal, the Sixth Circuit reviewed the district court's exercise of discretion under the Declaratory Judgment Act de novo, and held that declaratory judgment was inappropriate because it neither served to clarify and settle the legal relationships between the insureds and the insurer, nor to properly terminate the controversy. Mercier, 913 F.2d at 279. The five factors to be considered by the court in exercising its discretion under the Act are:
(1) whether the declaratory action would settle the controversy;
(2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue;
(3) whether the declaratory remedy is being used merely for the purpose of "procedural fencing" or to provide an arena for a race for res judicata;
(4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and
(5) whether there is an alternative remedy which is better or more effective.
Id., at 277.
In the case at bar, the plaintiff filed a complaint for interpleader and injunction, pursuant to 28 U.S.C. § 1335, which provides:
(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader, filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery of payment of the loan or money or property of such amount of value, or being under any obligation written or unwritten to the amount of $500 or more, if
(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument of the amount due under such obligation into the registry of the court, there is abide the judgment of the court....
The complaint seeks declaratory relief that the plaintiff is fully discharged from any other or further liability to the defendants, in other words, that it is absolved of its duty to defend either defendant in other related actions. Declaratory relief is also requested in the counterclaims and cross-claims.
In its status report, the defendant PAFCO, states that it has no objection to all issues being decided in the Bourbon Circuit Court. However, as opposed to the case in Mercier, this action originated in this Court. PAFCO asserts that, unlike the court in Mercier, this Court would appear to have jurisdiction to follow through to decide issues. The defendant acknowledges that though a state remedy is available in this matter, it would appear that this Court may continue with this action in its sound discretion.
The defendant Cassagne requests the Court to transfer all issues in this case to the Bourbon Circuit Court. The wrongful death suit pending in state court was filed November 13, 1990, six days after the complaint in the instant action, and is styled Linda Cassagne, Administratrix of the Estate of Alain Cassagne v. Robert S. Brewer, et al., No. 90-CI-281. It has been represented to the Court that by agreement of the parties, State Farm has been granted leave to intervene in that action, which has been held in abeyance pending the outcome of this action.
Defendant Cassagne argues that under the holding of Mercier, this Court should not exercise its discretion and make a declaration, but instead should defer to Bourbon *929 Circuit Court to proceed on all matters at issue. This will avoid a multiplicity of suits. It will also allow a state court to interpret Kentucky law on the duty to defend.
In the alternative, she asks that the Court reach a speedy decision on the declaration of rights issues concerning total policy limits and State Farm's duty to defend, and then realign the parties. Defendant Cassagne asserts that at this point the Court would loose jurisdiction as to the issues of damages and liability. As State Farm would no longer be a real party in interest at that point, the parties should be realigned with Cassagne as the plaintiff and Brewer as the defendant. Defendant contends that once that occurs, diversity jurisdiction would be destroyed,[1] because of the lack of diversity between Brewer and Cassagne.
Plaintiff and defendant Brewer both argue that this Court should retain jurisdiction over the case. Reviewing the five Mercier factors, Brewer contends that while the Court's ruling will not settle the entire controversy, it would afford State Farm with the relief from uncertainty as to the amount of coverage it owes and whether it has a duty to defend. Brewer asserts generally that this Court's jurisdiction over the issue in controversy will serve a useful purpose and will clarify the questions of insurance coverage, because the Court is familiar with the case. The defendant contends that this is not a case in which a declaration of rights would be used merely for procedural fencing, nor does not appear to increase the friction between state and federal courts, or to improperly infringe upon state court jurisdiction. Defendant Brewer concedes that an alternative remedy of filing a declaratory action is available in state court.
The plaintiff argues that Mercier is distinguishable as an action solely under the Declaratory Judgment Act. Therefore, it claims that the decision has no application to this federal statutory interpleader action brought pursuant to 28 U.S.C. § 1335, even though complete interpleader relief may require the Court to afford declaratory relief. To the extent declaratory relief is necessary to effectuate the requested interpleader relief, plaintiff contends that the principal criteria set forth by the Sixth Circuit are satisfied, in that declaratory relief will serve a useful purpose in clarifying and settling the legal relations in issue, and it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. Plaintiff continues that in this interpleader case, the narrow issue raised by the interpleader complaint involves a dispute as to which young man was driving the vehicle at the time of the accident, which in turn affects the policy limits of coverage.
INTERPLEADER
This court is well aware of the purposes of interpleader and the protection it offers to a stakeholder who seeks to avoid determining at its peril which of several claimants has the superior claim to a fund, as well as the vexation and expense of multiple suits. The undersigned is concerned, however, that this action has not taken shape as a typical interpleader action in the insurance setting. In the usual setting, the insurer has an account to which there are several claimants, any one of which claims would exceed policy limits, or all of which cannot be honored under the policy. For example, a life insurance company may have a $50,000 life insurance policy to which a number of self-proclaimed beneficiaries make claim. There is no reason for the insurance company to withhold payment, except that it cannot determine to whom to award the proceeds. The fund itself is the target of the claimants, and "marks the outer limits of the controversy." State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 534, 87 S.Ct. 1199, 1205, 18 L.Ed.2d 270 (1967). The insurance company does not want to pay twice, and it wants to buy its peace. An interpleader action is filed. Jurisdiction is established *930 under 28 U.S.C. § 1335 by satisfying diversity requirements, and by the plaintiff depositing such money or property, which, in the example, would be $50,000.
In the case at bar, questions have arisen at the courthouse door which impinge upon the jurisdiction of this Court. Deposit of the fund at issue, or a bond in that amount, is necessary for the district court to acquire jurisdiction over a statutory interpleader action. Smith v. Widman Trucking and Excavating, Inc., 627 F.2d 792 (7th Cir.1980). Some courts have held that the entire amount claimed by the claimant, or the entire amount subject to claims in the possession of the stakeholder, must be deposited in order to establish jurisdiction. See, e.g., Miller & Miller Auctioneers v. G.W. Murphy Industries, Inc., 472 F.2d 893 (10th Cir.1973); Metal Transport Corp. v. Pacific Venture S.S. Corp., 288 F.2d 363 (2nd Cir.1961); New York Life Ins. Co. v. Hannon, 280 F.Supp. 291 (D.Or.1967). The face amount of the policy proceeds should be deposited in an insurance case. Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir.1976).
In the instant case however, the plaintiff has not tendered for deposit the limits of liability shown on the face of the policy to be $50,000 per person and $100,000 per accident, nor has it tendered any additional amount for the claimed coverage for property damage, which the defendant Brewer claims in the amount of $15,000, or underinsurance claims. If the Court could be satisfied that the policy limits have been tendered, it would then be called upon to decide, as a matter of state law, whether tendering the policy limits absolves the plaintiff of all further liability to either of the defendants, including the duty to defend either or both of them in the related state court action.
The parties have presented arguments on the issue of the plaintiff's duty to defend after tender of policy limits, in the collateral setting of papers filed in support of and in opposition to the defendant Cassagne's motion to alter or amend the Court's Order of December 4, 1990. According to the authorities cited to the Court, there is no Kentucky caselaw directly on point, and other jurisdictions are split on the issue of whether tender of policy limits in an interpleader action absolves an insurer of the duty to defend under a policy with provisions similar to those in the relevant policy. While this question has not been presented to the Court in the form of a dispositive motion, it is clear that the parties are in disagreement on the issue.
CONCLUSION
Although this action was filed pursuant to the federal interpleader statute, the issues before the Court reveal that it is, in fact, a declaratory judgment action. Until a determination of who was driving the car is made, the limits of liability cannot be determined. Until the true limits of liability are determined, the Court cannot characterize this action as an interpleader action. To allow a $25,000 deposit, coupled with an adjudication that the plaintiff has no duty to defend, would require a finding on the "driver" issue, and this the Court will not do.
The pivotal issue in determining the rights or the parties in this action is: who was driving the car. The Court will not assume jurisdiction of this case to decide the dispute between two Kentucky citizens. Under the rubric of Mercier, the exercise of jurisdiction for this purpose would both increase friction with the state court and improperly encroach upon state jurisdiction by depriving the Bourbon Circuit Court of the opportunity to determine the facts, rights and responsibilities under the law of the Commonwealth of Kentucky. There are no legal relations which can be clarified or controversies which can be settled more effectively in this forum than in state court. The case can proceed more efficiently in circuit court than if it was to compete on the demanding docket of this Court. The undersigned is of the opinion that a Kentucky state court should also determine the coverage issues and the question of State Farm's duty to defend.
For the reasons stated herein, and the Court being sufficiently advised;
*931 Accordingly,
IT IS THEREFORE ORDERED:
(1) that the motion of the plaintiff, State Farm Mutual Automobile Insurance Company for leave to deposit $25,000 into the court's registry, be and hereby is OVERRULED;
(2) that upon sua sponte motion of the Court, the complaint, all counterclaims and cross-claims, and the third-party complaint be and hereby are DISMISSED, without prejudice to litigate all issues raised in the above-styled action in the Bourbon Circuit Court; and this action shall be STRICKEN from the docket.
NOTES
[1] Under Section 1335, diversity is required between two or more, but not all, of the adverse claimants. This is satisfied in the instant case by the naming of PAFCO, an Indiana corporation, as well as the two Kentucky residents, Brewer and defendant Cassagne.
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21 Cal.App.2d 488 (1937)
THE PEOPLE, Respondent,
v.
JOHN EPSTEIN, Appellant.
Crim. No. 2989.
California Court of Appeals. Second Appellate District, Division Two.
June 23, 1937.
Morris Lavine for Appellant.
U.S. Webb, Attorney-General, and Eugene M. Elson, Deputy Attorney-General, for Respondent.
McComb, J.
Defendant was convicted after trial by jury of seven counts of robbery of the first degree. He also entered a plea of guilty to a charge of burglary. This appeal is from the judgments and orders denying his motions for a new trial as to the counts of robbery and from the order of the court denying his motion for permission to withdraw his plea of guilty to the charge of burglary.
Viewing the evidence most favorable to the prosecution (People v. Dukes, 90 Cal.App. 657, 659 [266 P. 558]), the facts are these:
August 10, 1932, defendant, with two other men, held up the business place of Robert Gans, using a gun for the purpose of intimidating Mr. Gans and his employees. Defendant and his accomplices took from the premises money and a thirty-two calibre revolver.
Defendant relies for reversal of the judgment on the following propositions:
First: The evidence is insufficient to sustain the judgment of the trial court.
Second: The trial court committed prejudicial error in (a) the admission and exclusion of evidence, and (b) the giving and refusing of instructions.
Third: The trial court erred in refusing him permission to withdraw his plea of guilty to the count charging him with burglary.
[1] As to defendant's first proposition, we have examined the record and find that there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the findings of *490 fact upon which the judgment of guilty as to each count was necessarily predicated. Received in evidence was also a confession of the defendant admitting his participation in the crimes charged, and, since there was substantial evidence that defendant aided and abetted his codefendants in the commission of the crime charged in count I, he was guilty as a principal, even though he may not have been physically present in the room at the time the revolver was taken from the presence of Mr. Gans. Further discussion of the evidence is unnecessary. (Thatch v. Livingston, 13 Cal.App.2d 202 [56 PaCal.2d 549]; People v. Groves, 9 Cal.App.2d 317, 321 [49 PaCal.2d 888, 50 PaCal.2d 813]; Leavens v. Pinkham & Mckevitt, 164 Cal. 242, 245 [128 P. 399].)
[2] The second proposition is likewise untenable. The law is settled that a judgment will not be set aside in any case on the ground of (a) misdirection of the jury or (b) improper admission or rejection of evidence, unless there has been a miscarriage of justice. (Art. VI, sec. 4 1/2, Const. of Calif.) Therefore, conceding without deciding that the trial court's rulings were erroneous, defendant may not urge them as error in this court, in view of his confession that he participated in the crimes with which he was charged. Thus there was no prejudice or miscarriage of justice resulting to him.
[3] Defendant's final contention will not be considered by us, since he has not furnished us with argument or citation of authorities in support thereof. The law is settled that, when the appealing party fails to furnish this court with either argument or authorities upon a point urged as grounds for reversal of a judgment of the lower court, the point will be deemed to have been abandoned. (People v. Mechler, 75 Cal.App. 181, 188 [242 P. 503]; People v. Adams, & Co., 112 Cal.App. Supp. 769, 773 [295 P. 511]; People v. Williams, 96 Cal.App. 215, 218 [273 P. 1087].)
The judgments and orders are and each is affirmed.
Crail P. J., concurred.
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688 So.2d 454 (1997)
Richard W. DEASE, Appellant,
v.
Kathryn B. DEASE, Appellee.
No. 96-732.
District Court of Appeal of Florida, Fifth District.
February 28, 1997.
*455 Richard W. Dease, Altoona, Pro se.
R. Jason deGroot, Deltona, for Appellee.
HARRIS, Judge.
This case may well set a new standard for the delay between the final hearing and the final judgment. Indeed, Mr. Dease (acting pro se) urges that the trial court entered a final judgment without holding a trial. Mr. Dease apparently cannot remember that some thirty-one months before entry of the final judgment, the parties did indeed appear before the judge. There was some continuing post-trial activity. According to Mrs. Dease's attorney, memoranda were submitted in October and November, 1993, and hearings were held in April and September, 1994, and in April and June, 1995. Over nine months later, a final judgment giving the wife almost all of the marital assets because "it would be inequitable to the wife to have equal division of the property since she had limited skills, training, and education and the husband has superior skills, training and education compared to the wife," apparently prepared by the wife's lawyer, was signed by the judge.
While disparate earning abilities may justify alimony (and the court awarded alimony), it does not, at least without more explanation, justify an unequal distribution of marital assets. See Hallman v. Hallman, 575 So.2d 738 (Fla. 5th DCA 1991) (superior earning ability is not a factor for purposes of equitable distribution of marital assets). There are other errors in this judgment. First, the court provided that the parties would receive "the property in [their] possession and control." The property was neither itemized nor valued nor is there any indication that the property is marital or separate. See § 61.075(3), Fla.Stat.; Esposito v. Esposito, 651 So.2d 1248 (Fla. 2d DCA 1995); Keaton v. Keaton, 634 So.2d 798 (Fla. 4th DCA 1994). In addition, the parties seem to agree that the judgment used the wrong evaluation date.
It is with some reluctance, but commitment, that we reverse based on a delayed judgment. There has already been an inexcusable delay in the resolution of this conflict. We recognize that by reversing, we are adding to that delay. But it is impossible to tell whether this judgment entered some two and a half years after the final hearing and over nine months after the last court appearance reflects the reasoned judgment of the court. In any event, the errors committed in the scheme of distribution would require reversal.
REVERSED and REMANDED for a new trial on all issues except the dissolution of marriage.
COBB and THOMPSON, JJ., concur.
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577 P.2d 1074 (1978)
In the Matter of the ESTATE of William J. HUTCHINSON, Deceased.
No. 3570.
Supreme Court of Alaska.
May 5, 1978.
Joseph W. Sheehan, Fairbanks, for petitioner.
James D. DeWitt, Call, Haycraft & Fenton, Fairbanks, for respondent.
Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
OPINION
MATTHEWS, Justice.
This case is here on a petition for review of a superior court order giving priority to family allowances over costs of estate administration. The decedent had seven children by his first marriage and one child by his second. His will left all his property to his two oldest children, one of whom is the personal representative of the estate. The child of the second marriage and three of the children of the first marriage are minors. Family allowances were granted to all of the minor children. According to the petitioner, when the approved creditors' claims are added to the family allowances granted by the court, the threshold of insolvency will be approached and perhaps crossed. Petitioner alleges that decedent's widow claims a substantial portion of the assets of the estate as her own. A trial is now pending on that claim, and petitioner suggests that the estate will be unable to defend itself if the order giving family allowances priority over administrative expenses, including attorney's fees, is upheld.
Alaska is one of several states which has adopted the Uniform Probate Code. One section of the Code, AS 13.11.135(a), provides that family allowances have priority over all claims except homestead allowances.[1] The word "claims" is defined in AS *1075 13.06.050(4) and expressly includes expenses of administration.[2] When only those two statutory sections are referred to, family allowances clearly have priority over expenses of administration. However, petitioner argues that another section of the Code reverses the order of priority. AS 13.16.470(a) sets forth the sequence for payment of "claims" in cases of insolvency as follows:
(1) costs and expenses of administration;
(2) reasonable funeral expenses;
(3) debts and taxes with preference under federal law;
(4) reasonable and necessary medical and hospital expenses for the last illness of the decedent, including compensation of persons attending him;
(5) debts and taxes with preference under other laws of this state;
(6) all other claims.
If the word "claims" as used in AS 13.16.470(a) includes family allowances, there is a conflict between this section and AS 13.11.135(a) because family allowances would be placed in category five while expenses of administration are in category one. The word "claims" includes "liabilities of the estate which arise at or after the death of the decedent ..."[3]. Family allowances seem to be within that definition; they are liabilities of the estate, and they arise at or after the death of the decedent.
The foregoing should serve to define the problem. If family allowances are claims as that term is defined in the Code there are two sections which set conflicting priorities: AS 13.11.135(a), which gives family allowances priority over expenses of administration, and AS 13.16.470(a), which grants administration expenses priority over family allowances. This question is one of first impression in Alaska and we have found no pertinent authority from other jurisdictions which have adopted the Uniform Probate Code.
It is an established principle of statutory construction that all sections of an act are to be construed together so that all have meaning and no section conflicts with another. Further, where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized, if possible; but if there is a conflict, the specific section will control over the general.[4] When these principles are applied to this case, it becomes apparent that family allowances should be given priority over expenses of administration for the following reasons.
First, AS 13.11.135(a) and AS 13.16.470(a) can be construed harmoniously if, and only *1076 if, family allowances are not found to be within the meaning of the word "claim" as defined in AS 13.06.050. That is a permissible reading of the section because family allowances are not specifically included there as are, for example, expenses of administration. The wording of AS 13.11.135(a) itself casts doubt on whether family allowances were meant to be included within the meaning of the word "claims." It states that family allowances have priority over "all claims," not "all other claims."[5] Moreover, the recipient of a family allowance is treated by other sections of the Code as a "distributee" rather than a "claimant."[6]
Second, assuming that "claims" includes family allowances and that the statutes are therefore in conflict, the more specific statute should control. AS 13.11.135(a) is the statute of greater specificity. It deals only with family allowances and states that they have priority over all claims with unmistakable clarity. AS 13.16.470(a), on the other hand, is much broader. It deals with the priorities for all categories of claims.
The result we reach is consistent with what we perceive to be the purpose of the family allowance, that is, to allow the dependents of the decedent the money to provide themselves with the necessities of life which, in many cases, they had been receiving from the decedent before his death.[7] As one commentator has stated, concerning family allowances:
It is only fitting, however that a decedent's family, after his death, should be protected to the extent that the decedent himself could protect them during his lifetime. Those who dealt with the decedent did so with knowledge of the existence of such provisions for the protection of himself and his family, and only upon the margin of his credit over such exemptions. It is therefore in no sense unfair to them that such provisions be continued in effect after his death, for the benefit of his family. The public welfare, moreover, is largely involved. If indigent widows and orphans were to be left wholly without means of support, a great burden would be cast upon society and they would frequently be left to suffer for faults which they were without power or capacity to oppose. It is repeatedly and soundly declared, accordingly, that the statutory rights of the family of a decedent to maintenance and support and to such protection against deprivation of the bare necessities of life as is accorded by the exemption and homestead laws and continued for their benefit, although in derogation of the common law, are strongly favored and are to be liberally construed in view of their humanitarian purpose.
3 Bancroft's Probate Practice, § 687, at 331 (2d ed. 1950). To be effective in cases of need, family allowances must be paid promptly after death. However, if family allowances are in the fifth category of priority under AS 13.16.470(a), the prudent personal representative will be often reluctant to make prompt family allowance payments. If the assets of the estate are exceeded by claims falling within the first four categories, he would subject himself to personal liability by paying family allowances,[8] and he would not be able to determine whether such claims exceed the estate's assets until the four-month period for presentation of claims has passed.[9] It seems unlikely that the authors of the Code and the legislators who enacted it intended that the dependents of the deceased should have to wait four months for money which *1077 is intended to continue to supply them with the daily necessities of life previously provided by the deceased. For these reasons the order of the Superior Court is affirmed.
AFFIRMED.
NOTES
[1] AS 13.11.135 provides:
Family allowance. (a) In addition to the right to homestead allowance and exempt property allowance, if the decedent was domiciled in this state, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody; but in case any minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his guardian or other person having his care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims but not over the homestead allowance. (emphasis added)
[2] AS 13.06.050 provides:
General definitions. Subject to additional definitions contained in the subsequent chapters which are applicable to specific chapters or sections, and unless the context otherwise requires, in this code:
* * * * * *
(4) "claims," in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration; the term does not include estate or inheritance taxes, demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
[3] Id.
[4] 2 J. Sutherland, Statutes and Statutory Construction §§ 4703, at 336-337; 5201, at 531-533; 5204, at 541-543 (3d ed. 1943); City of Anchorage v. Scavenius, 539 P.2d 1169, 1174 (Alaska 1975); Easom v. Farmers Insurance Co., Inc., 221 Kan. 415, 560 P.2d 117 (1977); Thielebeule v. M/S Nordsee Pilot, 452 F.2d 1230 (2d Cir.1971).
[5] The same subsection anticipates the fact of an insolvent estate and distinguishes between the family allowance and "claims" in the following language: "... which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims."
[6] AS 13.16.560(a)(2) and .575; and AS 13.16.635 (Supp. 1977).
[7] In re Hewett's Estate, 358 P.2d 579, 581 (Alaska 1961).
[8] AS 13.16.480(b).
[9] AS 13.16.460.
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KERRVILLE
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00645-CV
Kerrville State Hospital, Appellant
v.
James O. Clark and Genevie Clark, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 91-5525, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
In April 1991, appellees James O. Clark and Genevie Clark (the "Clarks") sued
appellant Kerrville State Hospital ("Kerrville") and the Texas Department of Mental Health and
Mental Retardation ("Department") in Travis County for the wrongful death of their daughter,
Rebecca Clark Ligon. Kerrville and the Department filed a motion to transfer venue to Kerr
County in May 1991, which the trial court denied. After a jury verdict finding in favor of the
Clarks, Kerrville and the Department moved for judgment non obstante veredicto ("judgment
n.o.v."). The trial court granted the Department's motion, but denied Kerrville's motion and
rendered judgment for the Clarks as to Kerrville. Kerrville appeals. We will affirm the trial
court's judgment.
BACKGROUND
The Clarks' daughter, Rebecca Clark Ligon, was the estranged wife of Gary Ligon.
Gary had a history of mental problems. In April 1989, after threatening Rebecca and resisting
arrest, Gary was taken to Kerrville for treatment, where he remained for approximately one
month. In May 1989, the Kerrville Institutional Review Board determined that Gary was not
manifestly dangerous. A Kerrville psychiatrist recommended to a Kerr County court that Gary
begin an outpatient commitment so that Kerrville could monitor his medication; Gary began the
outpatient commitment pursuant to a court order. On May 22, 1990, he voluntarily checked into
Kerrville for inpatient treatment; Kerrville, however, released Gary at his request on May 24, and
reinstated the outpatient commitment. On June 1, 1990, Gary brutally murdered Rebecca. (1) The
Clarks filed suit against Kerrville and the Department, alleging that Kerrville's negligent release
of Gary proximately caused Rebecca's death.
The jury found both Kerrville and the Department negligent in Rebecca's death.
The trial court subsequently granted a judgment n.o.v. for the Department, but rendered judgment
that Kerrville was liable on the Clarks' wrongful death claim. Kerrville appeals by eight points
of error, raising venue, sovereign immunity, duty, and proximate cause issues.
DISCUSSION
Venue
In Kerrville's first point of error, it contends that the trial court erred in
maintaining venue in Travis County because that decision violated the express terms of the Texas
Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a) (West 1986 & Supp.
1995). (2) Section 101.102(a) provides that "[a] suit under this chapter shall be brought in state
court in the county in which the cause of action or a part of the cause of action arises." Id.
Venue may be proper in many counties under the venue rules, and the plaintiff usually has the
right to choose venue. Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex.
1994). If the defendant raises a venue issue, however, the burden is on the plaintiff to show that
venue is maintainable in the county of the plaintiff's choice. Tex. R. Civ. P. 87(2)(a).
Kerrville argues that venue was proper in Kerr County under the venue provision
of the Tort Claims Act because Kerr County was a "county in which the cause of action or a part
of the cause of action ar[ose]." Tex. Civ. Prac. & Rem. Code Ann. § 101.102(a) (West Supp.
1995). The Clarks agree that the Tort Claims Act controls venue for their claim; however, they
assert that Travis County was also a county of proper venue because their claims against the
Department arose in Travis County. See id. Although Kerrville asserts that the Tort Claims Act's
venue provision is mandatory, the disposition of this issue is not necessary to resolve the
controversy presented here. Because both Travis and Kerr Counties fall within section
101.102(a), we conclude that venue would be proper in either county, regardless of whether the
Act's provision is mandatory or permissive.
Kerrville alleges, however, that venue was improper in Travis County because the
Clarks failed to assert any claims against the Department that were not excluded from liability
under the express terms of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.021, .056 (West 1986). The Clarks respond that Kerrville failed to specifically deny the
venue facts as alleged, and the trial court therefore was entitled to take the pleaded facts as true.
Tex. R. Civ. P. 87(2)(b). (3) Although the trial court may have had sufficient grounds on which to
deny the motion to transfer venue at the time of the venue hearing, our review is not limited to
the record evidence at that point in time. The Civil Practices and Remedies Code governs our
review of the venue issue:
On appeal from the trial on the merits, if venue was improper it shall in no event
be harmless error and shall be reversible error. In determining whether venue was
or was not proper, the appellate court shall consider the entire record, including
the trial on the merits.
Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (West 1986) (emphasis added). However, if
probative evidence exists to support the trial court's determination, even if the preponderance of
the evidence is to the contrary, we should defer to the trial court's judgment. Ruiz v. Conoco,
Inc., 868 S.W.2d 752, 758 (Tex. 1993). The scope of this review appropriately "strikes a balance
between the competing interests of the plaintiff and the defendant." Wilson, 886 S.W.2d at 262.
The Clarks assert that at least a part of their cause of action arose from acts and
omissions that occurred at the Department's headquarters in Travis County, including the
Department's: (1) failure to implement and adhere to its official standards; (2) failure to monitor
or require adequate reports from facilities relating to the release of patients like Gary; (3) failure
to conduct adequate follow-up reviews to determine Kerrville's compliance with its regulations;
(4) failure to perform adequate reviews of Kerrville's superintendent; and (5) failure to provide
case management services to Gary in conformity with its rules and regulations. (4)
At trial, the Clarks offered the testimony of three witnesses who were employees
of the Department--Dennis Jones, the Department's commissioner; David Wanser, assistant deputy
commissioner; and Sue Dillard, the director of Standards and Quality Assurance. These three
witnesses testified at length about the Department's development of policies and rules, the
Department's supervision of Kerrville Outreach Center, and the Department's mechanisms to
ensure compliance with its policies. In addition, the court also admitted several documents which
indicated that Kerrville had received deficiency ratings by the Department in several different
areas and that Kerrville had been criticized for the "lack of collaboration between the hospital and
community services [that] has had a deleterious effect on compliance efforts."
Given the testimony of the three witnesses and the documents admitted at trial, we
conclude that probative evidence existed in the record that a part of the cause of action arose in
Travis County. See Ruiz, 868 S.W.2d at 758. The Department was a proper party to the suit;
thus, venue was proper in Travis County because a part of the cause of action arose there. Tex.
Civ. Prac. & Rem. Code Ann. § 101.102(a) (West 1986 & Supp. 1995). (5) Therefore, we are
confronted with a situation where the suit would have been proper in either of two counties under
the Tort Claims Act. The Clarks contend that because venue was proper in either county, they
had the right to choose Travis County as the trial site. See Wilson, 886 S.W.2d at 260. We
agree. Under Wilson, if the plaintiff has chosen a county of proper venue, no other county can
be a proper venue in the case. See id. at 261-62. We overrule Kerrville's first point of error.
Sovereign Immunity
In its fourth, fifth, sixth, and seventh points of error, Kerrville contends that the
trial court erred in denying its motion for judgment n.o.v. because the Clarks' claims are barred
by the doctrine of sovereign immunity. The Tort Claims Act abolishes immunity only in certain
specified circumstances. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 1986). (6) A
governmental unit is not liable for damages unless the negligent act alleged falls within the
statutory waiver of immunity. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31 (Tex. 1983).
The specific waiver alleged by the Clarks was the condition or use of tangible property. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1986). Kerrville argues that the Clarks did
not present sufficient evidence at trial that the use or misuse of tangible property caused Rebecca's
death.
At trial, the jury found that Kerrville was negligent in discharging Gary on May
24, 1990, based upon inadequate medical records and inadequate administration of medications.
The Clarks candidly admit that, although medical charts and records were considered tangible
personal property at the time of the trial under Texas Department of Mental Health & Mental
Retardation v. Petty, 848 S.W.2d 680, 684 (Tex. 1992), the supreme court subsequently
determined that such records did not constitute tangible personal property under the Act. See
University of Tex. Medical Branch v. York, 871 S.W.2d 175, 179 (Tex. 1994) (holding that
information recorded in a patient's medical records does not constitute tangible personal property).
They argue, however, that York is not controlling because the unobjected to issue and instruction
given to the jury permitted it to consider not only medical records and charts, but in the
alternative, whether Kerrville was negligent in the use of medications for Gary. (7) The Clarks
assert that misuse of medication is a use of tangible personal property and, therefore, comes
within the waiver of immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West
1986); Quinn v. Memorial Medical Ctr., 764 S.W.2d 915, 917 (Tex. App.--Corpus Christi 1989,
no writ). We agree that York is not dispositive of the issues in this case given that the pleadings
stated a claim for negligence based on misuse of medication and the jury instruction permitted the
jury to find negligence in Kerrville's release of Gary based on the use or misuse of medications.
Kerrville correctly asserts, however, that whether the actions of Kerrville are
characterized as use, misuse, or non-use of the medications affects our determination of whether
sovereign immunity has been waived under the Act. The supreme court has stated that it has
"never held that a non-use of property can support a claim under the Texas Tort Claims Act.
Section 101.021, which requires the property's condition or use to cause the injury, does not
support this interpretation." Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994). (8) The supreme
court has defined "use" as "to put or bring into action or service; to employ for or apply to a
given purpose." Salcedo, 659 S.W.2d at 33 (quoting Beggs v. Texas Dep't of Mental Health &
Mental Retardation, 496 S.W.2d 252, 254 (Tex. Civ. App.--San Antonio 1973, writ ref'd)).
The parties dispute whether Kerrville's negligence involved the use or the non-use
of tangible personal property, i.e., medications. The Clarks argue that Kerrville's negligence
involved the misuse of medications because Kerrville prescribed an oral antipsychotic medication
as opposed to an injectionable antipsychotic drug. The Clarks' claim is premised on the fact that
Gary's medical records indicated a history of medication noncompliance, that Kerrville was aware
of Gary's noncompliance and his propensity for violence when not taking his medication, and that
Kerrville had used injectionable antipsychotic medications with Gary during previous
commitments. At trial, Dr. Saul Rosenthal, an expert witness, testified that injectionable
medications were readily available, that one injection would last approximately a month, and that
the staff should have monitored more carefully Gary's use of medications. Rosenthal opined that,
given Gary's history of noncompliance with drug regimens, he was surprised that injectionable
forms were not used because such use would have guaranteed compliance. Based on this and
other evidence, the Clarks assert that prescription of oral antipsychotic medications constituted
a misuse of tangible personal property because Kerrville should have prescribed injectionable
drugs which would have been effective for at least one month.
In response, Kerrville urges that the failure to prescribe an injectionable form of
medication constitutes a non-use of tangible property and, thus, does not fall within the limited
waiver of the Act. See Kassen, 887 S.W.2d at 14. The crux of Kerrville's argument regarding
non-use of tangible personal property involves the failure to confine Gary after his voluntary
commitment. Appellate courts have consistently held that the failure to restrain or confine an
individual constitutes an error in judgment and does not involve the negligent use of tangible
personal property. See Bourne v. Nueces County Hosp. Dist., 749 S.W.2d 630, 632 (Tex.
App.--Corpus Christi 1988, writ denied); Beggs v. Texas Dep't of Mental Health & Mental
Retardation, 496 S.W.2d 252, 254 (Tex. Civ. App.--San Antonio 1973, writ ref'd). Although the
failure to confine Gary may not fall within the waiver provisions of the Act, the Clarks argue that
Kerrville's release of Gary was negligent because Kerrville failed to ensure that he would remain
medication compliant after his release. Therefore, their case is distinguishable from the cases
Kerrville cites in support of its argument that its negligence does not involve the misuse of
tangible personal property. (9)
Nevertheless, we are compelled to determine whether prescribing oral medications
constitutes a misuse of tangible personal property that waives sovereign immunity. In Quinn v.
Memorial Medical Center, 764 S.W.2d 915 (Tex. App.--Corpus Christi 1989, no writ), the court
concluded that the dispensing of drugs by a hospital involved a use of tangible personal property
that fell within the waiver provisions of the Act. Id. at 917; see Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2) (West 1986). In Kassen, the supreme court concluded that a failure to provide
medication does not constitute a use of tangible personal property. See Kassen, 887 S.W.2d at
14. The facts of the instant cause fall somewhere on the continuum between Quinn and Kassen.
If Kerrville had prescribed no medication, we would clearly be under Kassen's non-use of tangible
personal property standard. Kerrville, however, prescribed Gary oral antipsychotic medications,
even though his patient charts indicated that he had a history of noncompliance with medications
and a propensity to become violent when not medication compliant and abstinent from alcohol.
We note that "[l]iability has been imposed when the injuries are alleged to have proximately
resulted from the negligent use of property in some respect deficient or inappropriate for the
purpose for which it was used." Hopkins v. Spring Indep. Sch. Dist., 706 S.W.2d 325, 327 (Tex.
App.--Houston [14th Dist.] 1986), aff'd, 736 S.W.2d 617 (Tex. 1987) (emphasis added). Under
the facts presented, we conclude that Kerrville's use of oral medications instead of injectionable
ones constituted a misuse of antipsychotic drugs to control Gary because oral medications were
inappropriate based on his history. Because the instant cause involves a use or misuse of tangible
personal property, it falls within the Tort Claims Act's waiver provision. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(2) (West 1986).
Kerrville asserts that the Clarks' allegations involve actions by Kerrville which are
discretionary in nature and, thus, are excluded from liability pursuant to the Tort Claims Act. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 1986). (10) The purpose of excluding
discretionary acts from liability is "to avoid a judicial review that would question the wisdom of
a government's exercise of its discretion in making policy decisions." State v. Terrell, 588
S.W.2d 784, 787 (Tex. 1979). Although the government is immune from liability if the
negligence causing the injury lies in the formulation of policy, the government is not protected
if an employee or an officer acts negligently in carrying out that policy. Id. at 788.
This Court has developed an approach for determining which discretionary acts
subject a governmental unit to liability:
The discretionary function exception is limited to the exercise of
governmental discretion and does not apply to the exercise of nongovernmental
discretion such as professional or occupational discretion. . . . The government
is liable for its agent's departure from policies made by his superiors but not for
harm done by the agent's adherence to those policies even if they turn out to cause
harm.
Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex. App.--Austin 1982, writ ref'd
n.r.e.) (concluding that professor's decision to use a real glass in a play involved an exercise of
professional or occupational discretion, not governmental discretion, and that the university could
be held liable) (quoting 3 Kenneth C. Davis, Administrative Law Treatise § 25.08, at 403-04
(Supp. 1982)); see Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex. App.--San Antonio 1992, writ
dism'd w.o.j.) ("Discretionary acts are those related to determining what the policy of the
governmental unit will be, but do not extend to the carrying out of the specifics of particular
policies . . . .").
Examining the actions of the doctors and staff at Kerrville, we conclude that they
were exercising professional or occupational judgment in their decision not to prescribe an
injectionable antipsychotic medication for Gary. The supreme court, analyzing what discretionary
acts of medical personnel are protected under the doctrine of official immunity, recently held that
a reviewing court must distinguish between governmental and medical discretion. Kassen, 887
S.W.2d at 11. Medical personnel are not immune from tort liability in their exercise of medical
discretion. Id. We conclude that the staff exercised purely medical discretion in its decision to
medicate Gary orally rather than by injection. As we indicated in Christilles, the exercise of such
professional discretion does not absolve the government of liability under the Act. See Christilles,
639 S.W.2d at 42-43. (11)
Finally, Kerrville asserts that because its employees were acting pursuant to a
court-ordered outpatient commitment, it is exempted from liability under the Act. Tex. Civ. Prac.
& Rem. Code Ann. § 101.053(b) (West 1986). Section 101.053(b) provides: "This chapter does
not apply to a claim based on an act or omission of an employee in the execution of a lawful order
of any court." Id. Although the court ordered an outpatient program for Gary, we fail to see how
this releases Kerrville from liability. Under the order, Kerrville was directed to develop and
submit a treatment plan for Gary, Kerrville's employees were responsible for Gary's outpatient
care, and Gary was ordered to comply with the treatment plan. The order indicates that the trial
court intended that Kerrville keep the court apprised of any changes in treatment and any
noncompliance of Gary with the treatment plan. The court, however, left to Kerrville's discretion
the development and implementation of Gary's treatment. Dr. William Schultheis, Gary's
physician at Kerrville, testified that he did not report the decision to discontinue antibuse (12) or the
fact that Gary's blood levels were subtherapeutic, indicating that he had not been taking his
medication, because these were decisions that the court had left to hospital personnel.
The court never ordered that Gary not be given injectionable antipsychotic
drugs--this type of decision was left to Kerrville's staff. Although we agree that the decision to
release Gary pursuant to the court order may be protected under the judicial exception of the Act,
the decision to release Gary without taking necessary steps to ensure medication compliance is not
similarly protected. Kerrville's actions are not immune from liability under the judicial exception.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.053(b) (West 1986).
Because we have concluded that Kerrville's negligence falls within the waiver of
sovereign immunity under the Tort Claims Act, we overrule Kerrville's fourth, fifth, sixth, and
seventh points of error.
Duty
In its second and third points of error, Kerrville asserts that the trial court erred
in denying its motion for judgment n.o.v. because Kerrville owed no duty to the Clarks and the
Clarks had no standing to pursue their negligence claim. Duty is the threshold issue in a
negligence case, and the existence of a duty is a question of law for the court to decide from the
circumstances surrounding the occurrence. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d
523, 525 (Tex. 1990). In assessing whether a defendant is under a duty, the court considers
several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed
against the social utility of the actor's conduct, the magnitude of the burden of guarding against
the injury, and the consequences of placing that burden on the defendant. Otis Eng'g Corp. v.
Clark, 668 S.W.2d 307, 309 (Tex. 1983). Of these factors, foreseeability of the risk is the
dominant consideration. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).
Kerrville initially argues that the Clarks lack standing because no physician-patient
relationship existed between Kerrville's medical staff and Rebecca that gave rise to a duty to
protect Rebecca from harm. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(a)(4) (West Supp.
1995) (providing for claim against health care provider for treatment that results in injury or death
to patient). Kerrville contends that a doctor owes a duty only to his or her patients, and that this
duty cannot be extended to include the patient's victims. See Bird v. W.C.W., 868 S.W.2d 767,
770 (Tex. 1994) (concluding that psychologist owed no duty to father of child diagnosed as
sexually abused because no physician-patient relationship existed between father and
psychologist); Dominguez v. Kelly, 786 S.W.2d 749, 751 (Tex. App.--El Paso 1990, writ denied);
Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex. App.--San Antonio 1988, no writ).
A few cases have addressed a doctor's duty to third parties injured by a patient.
In Gooden v. Tips, 651 S.W.2d 364 (Tex. App.--Tyler 1983, no writ), the court held that a
physician owes a duty to the driving public to warn a patient of the possible consequences of
driving while using a prescribed medication. Id. at 369-70. In contrast, Kerrville cites Williams
v. Sun Valley Hospital, 723 S.W.2d 783 (Tex. App.--El Paso 1987, writ ref'd n.r.e.), which held
that a hospital owed no duty to a woman injured when her car struck a mentally ill patient who
had escaped from the hospital. The court refused to impose liability "for the unpredictable
conduct of . . . patients with a mental disorder." Id. at 787. Both of these cases, however,
acknowledged that a distinction would exist if the doctor knew or had reason to know that the
patient had violent propensities. See id. (refusing to impose liability "[w]here there is no
allegation of a threat or danger to a readily identifiable person"); Gooden, 651 S.W.2d at 370
(noting that doctor had no duty to prevent patient from driving because doctor had not taken
control of patient and patient was not a person with dangerous and violent propensities).
Although generally a doctor owes a duty only to his or her patients, we are
confronted with a situation very different from that presented in the cases cited by Kerrville.
None of those cases involved a patient who the doctor knew or had reason to know was
dangerous. Section 319 of the Restatement (Second) of Torts provides:
One who takes charge of a third person whom he knows or should know to be likely
to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent him from doing such harm.
Restatement (Second) of Torts § 319 (1965) (emphasis added). In concluding that an employer
has a duty to prevent an employee from harming others, the supreme court noted, "[s]uch a duty
may be analogized to cases in which a defendant can exercise some measure of reasonable control
over a dangerous person when there is a recognizable great danger of harm to third persons."
Otis Eng'g, 668 S.W.2d at 311 (emphasis added). This case fits squarely within section
319--Kerrville had two options in exercising control over Gary: (1) petition the court to change
the outpatient commitment to inpatient commitment based on Gary's medication noncompliance
or (2) prescribe an injectionable antipsychotic medication that would have stabilized Gary's
outpatient condition for at least a month. Clearly, the hospital took charge of Gary when it
permitted Gary's voluntary commitment on May 22, 1990; thus, it was under a duty to use
reasonable care in the release of Gary on May 24, 1990. At the very least, this duty required that
Kerrville ensure Gary's medication compliance.
Analyzing the situation presented here under the factors outlined in Otis
Engineering and utilized in Bird, it becomes clear that Kerrville had a duty to use reasonable care
in its release of Gary. Otis Eng'g, 668 S.W.2d at 309; Bird, 868 S.W.2d at 769-70. In the
instant cause, the risk, foreseeability, and likelihood of injury were high. Evidence in the record
indicates that Gary had a great propensity for violence when he was not taking antipsychotic
drugs. In contrast, we can find no social utility in the hospital's decision not to medicate Gary
by injection, given that it was well aware of Gary's long history of noncompliance. In addition,
we perceive no appreciable burden to the hospital staff in medicating by injection as opposed to
prescribing medication to be taken orally. We conclude that the hospital owed a duty to use
reasonable care in its release of Gary. (13) We overrule Kerrville's second and third points of error.
Proximate Cause
In its eighth point of error, Kerrville asserts that the trial court erred in denying its
motion for judgment n.o.v. and its motion to disregard the jury's answers because there was no
evidence or insufficient evidence to support the jury's findings that any actions of Kerrville were
the proximate cause of Rebecca's death. (14) In deciding a no-evidence point, we must consider only
the evidence and inferences tending to support the finding of the trier of fact and disregard all
evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593
(Tex. 1986), cert. denied, 498 U.S. 847 (1990). To determine the factual sufficiency of the
evidence, we must consider and weigh all the evidence; the judgment should be set aside only if
it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Proximate cause is composed of two essential elements: (1) cause in fact and (2)
foreseeability. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). Cause
in fact requires that the negligent act at issue be a substantial factor in producing the injury,
without which such harm would not have resulted. Brown v. Edwards Transfer Co., 764 S.W.2d
220, 223 (Tex. 1988). The supreme court has established the requirements of foreseeability:
"Foreseeability" means that the actor, as a person of ordinary intelligence, should
have anticipated the dangers that his negligent act created for others. . . .
Although the criminal conduct of a third party may be a superseding cause which
relieves the negligent actor from liability, the actor's negligence is not superseded
and will not be excused when the criminal conduct is a foreseeable result of such
negligence. There can be concurrent proximate causes of an accident. All persons
whose negligent conduct contributes to the injury, proximately causing the injury,
are liable.
Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (emphasis added).
Causation does not have to be supported by direct evidence; circumstantial evidence
and inferences drawn therefrom will sufficiently support a finding of causation. Havner v. E-Z
Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992). A plaintiff is not required to prove beyond
a reasonable doubt that the defendant's actions were a cause of the injury, and it suffices if the
plaintiff introduces evidence "from which reasonable persons may conclude that it was more
probable that the event was caused by the defendant than that it was not." W. Page Keeton,
Prosser and Keeton on the Law of Torts § 41, at 269 (5th ed. 1984); see Havner, 825 S.W.2d at
460.
We now turn to an examination of the evidence. Dr. Rosenthal, the Clark's expert
witness, testified that if Gary had not been released from the hospital, he would not have been able
to murder Rebecca. He also testified that Kerrville was negligent in discharging Gary without
using an injectionable antipsychotic drug to ensure his medication compliance because Kerrville's
records indicated that Gary was not complying with his medication regimen. Dr. Rosenthal
concluded that, given Gary's past history of violence when drinking and not medication compliant,
"there was a high probability that if this person was sent out with no particular place to go, in the
midst of separation and divorce from his wife, with no money, that there was a severe and
significant risk that he was--that in all likelihood or probability that he was going to be violent
again."
In addition, Kerrville's own expert witness, Dr. J. Ray Hays, testified that Gary's
medical records indicated that he had been assaultive toward Rebecca before his voluntary
commitment on May 22, 1990, and that if the same factors that made him violent toward her
previously were present, he would be violent toward her again. He also testified that failure to
take medication would probably lead to deterioration of mental condition, that Gary's delusional
thinking at the time of his commitment on May 22 indicated that his mental condition was
deteriorating, and that the deterioration could have been caused by failure to take his antipsychotic
medication. He stated that a patient who has become violent in the past when medication
noncompliant may become violent in the future if not adhering to the prescribed drug regimen.
He opined that the duty of Kerrville's staff "once they have accepted him as a patient, is to work
to find an appropriate community placement and ensure that he has a follow-up appointment to
stabilize him on new medication which might be appropriate when you discharge him." Similarly,
Dr. Richard Coons testified that Gary had a history of violent and assaultive behavior, and that
past violence could constitute an indication of future violence. Coons also admitted that Gary had
been noncompliant with his treatment programs over the years.
We conclude that the evidence adduced at trial sufficiently established that
Kerrville's failure to use an injectionable antipsychotic drug was a cause-in-fact of Rebecca's
death. A causal connection must rest in reasonable probabilities, but "reasonable probability is
determined by a consideration of `the substance of the testimony of the expert witness and does
not turn on semantics or on the use by the witness of any particular term or phrase.'" Otis
Elevator Co. v. Wood, 436 S.W.2d 324, 331 (Tex. 1968) (quoting Insurance Co. of N. Am. v.
Myers, 411 S.W.2d 710, 713 (Tex. 1966)). In determining the causal relationship, the trier of
fact is not limited to medical opinion but may view the evidence as a whole. Although no expert
specifically testified that the failure to medicate Gary properly caused Rebecca's death, the record
is replete with evidence from which the jury could establish such a causal link. Evidence of
Gary's deteriorating mental condition at the time of his release, statements to Kerrville staff in
which he confirmed he was not taking his thorazine, previous episodes of violence against
Rebecca, the fact that Gary's medical records explicitly contained statements that Gary could be
extremely dangerous when not medication compliant, coupled with expert testimony concerning
the likelihood of future violence based on past violence and the fact that Gary murdered Rebecca
approximately seven days after his release, provides ample evidence from which the jury could
conclude that failure to medicate Gary properly caused Rebecca's death.
We also conclude that the foreseeability requirement of proximate cause was
satisfied. Dr. Rosenthal testified that it was reasonably foreseeable that "an event like [Rebecca's
murder] could happen." The hospital staff knew that Gary could "become extremely dangerous
to self or others if not medication compliant and abstinent from alcohol." Dr. Thomas Hardee
testified as to the reasonable probability that, based on his past medical history, Gary would
become violent and aggressive if not medication compliant. Kerrville argues that Dr. Rosenthal's
refusal to opine that there was a ninety to one hundred percent chance that Gary would harm
someone upon release and to agree that the hospital knew or should have known that Gary would
murder Rebecca renders his opinions too speculative to be relied upon by a jury. We disagree.
"Foreseeability does not require that a person anticipate the precise manner in which injury will
occur once he has created a dangerous situation through his negligence." Travis, 830 S.W.2d at
98; see Harvey v. Stanley, 803 S.W.2d 721, 726 (Tex. App.--Fort Worth 1990, writ denied)
(foreseeability does not require actor to anticipate precise hazard or consequences that may grow
out of dangerous situation). Foreseeability requires only that Kerrville should have reasonably
anticipated that Gary would commit some type of violent act if not medication compliant, not that
it anticipate that Rebecca would be murdered. See Gutierrez v. Scripps-Howard, 823 S.W.2d
696, 699 (Tex. App.--El Paso 1992, writ denied) ("Foreseeability does not require the actor to
anticipate in the particular incident, but only that he reasonably anticipate the general character
of the injury."). The record provides ample evidence that Kerrville knew of Gary's propensity
for violence and could have reasonably anticipated that Rebecca might be the victim of that
violence if Gary was not medication compliant. The trial court did not err in refusing to grant
the motions for judgment n.o.v. and to disregard the jury's finding on proximate cause. We
overrule Kerrville's eighth point of error.
CONCLUSION
We have determined that venue was proper in Travis County, sovereign immunity
does not protect Kerrville from liability, Kerrville owed a duty to control Gary through the use
of injectionable drugs after its decision to release him, and sufficient evidence supports the jury's
finding that Kerrville proximately caused the death of Rebecca. Accordingly, we affirm the
judgment of the trial court.
Mack Kidd, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: May 31, 1995
Publish
1. The record indicates that Gary decapitated, dismembered, and burned Rebecca's
body, and then attempted to hide the remains in a field.
2. The Clarks initially respond that Kerrville waived its venue challenge by waiting
fifteen months to request a hearing on its motion to transfer. Rule 87(1) of the Texas
Rules of Civil Procedure provides: "The determination of a motion to transfer venue
shall be made promptly . . . . The movant has the duty to request a setting on the motion
to transfer." This Court has previously held that Rule 87(1) contemplates that "a movant
may not sit on his rights indefinitely without incurring waiver." Whitworth v. Kuhn, 734
S.W.2d 108, 111 (Tex. App.--Austin 1987, no writ). In Whitworth, the plaintiff waited
thirteen months after filing his motion to transfer before requesting a hearing. Similarly,
Kerrville and the Department waited approximately fifteen months before requesting a hearing
on their motion. Although a "complete lack of diligence is inconsistent with the purpose of
Rule 87(1), and the trial court could have refused [the] motion on that basis," Whitworth, 734
S.W.2d at 111, the Clarks overlook the fact that this Court nevertheless addressed the merits
of the venue claim in Whitworth because the trial court did not refuse the motion on the basis
of a lack of diligence. See id. Because the trial court did not deny Kerrville and the
Department's motion on this ground, we will address the merits of the point of error.
3. Rule 87(2)(b) provides:
It shall not be necessary for a claimant to prove the merits of a cause of
action, but the existence of a cause of action, when pleaded properly, shall be
taken as established as alleged by the pleadings. When the defendant
specifically denies the venue allegations, the claimant is required, by prima
facie proof . . . to support such pleading that the cause of action taken as
established by the pleadings, or a part of such cause of action, accrued in the
county of suit.
4. The crux of the Clarks' claim against the Department involved the use and misuse
of records, files, surveys, reports, and other information about Kerrville and its
outpatient program. At the time of the venue hearing and trial, the misuse of records
and files constituted use of tangible personal property for purposes of the Texas Tort
Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1986); Texas Dep't
of Mental Health & Mental Retardation v. Petty, 848 S.W.2d 680, 684 (Tex. 1992). The
supreme court subsequently held that information recorded in writing does not constitute
tangible property for purposes of the Tort Claims Act. See University of Tex. Medical Branch
v. York, 871 S.W.2d 175, 178-79 (Tex. 1994). The Clarks do not challenge on appeal the
trial court's judgment n.o.v. for the Department.
5. Kerrville contends that the trial court's grant of a judgment n.o.v. indicates that no
cause of action was viable against the Department; thus, the trial court should have
transferred venue to Kerr County. The Clarks presented evidence that the Department
was negligent in its implementation of policies regarding the treatment of patients like
Gary, and the jury specifically found the Department "negligent in failing to ensure
compliance by Kerrville . . . with its rules and standards as they affected the care and
treatment of Gary Ligon." The Department asserted several grounds in its motion for
judgment n.o.v.; the court did not specify which grounds it relied upon in granting the
motion. We cannot speculate on the grounds for the judgment n.o.v., and we refuse to
hold that venue was improper based solely on the trial court's ultimate grant of the
motion. Cf. Humphrey v. May, 804 S.W.2d 328, 329-30 (Tex. App.--Austin 1991, writ
denied) (allowing later findings to control over earlier venue rulings of trial court would result
in significant waste of judicial time and resources).
6. The Tort Claims Act provides:
A governmental unit in the state is liable for:
. . .
(2) personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 1986).
7. Question Number 1:
Was Kerrville State Hospital negligent in discharging Gary Ligon on May 24,
1990?
You are instructed that in determining the negligence, if any, of the
officers and employees of Kerrville State Hospital, consider only their use or
misuse of medical records, admission and discharge documents, and/or
medications of Gary Ligon.
(Emphasis added.)
8. The supreme court, however, has held that the negligent failure to furnish an item
of property necessary to make safe the tangible property actually supplied invokes the
waiver of the Tort Claims Act. York, 871 S.W.2d at 181 (Gammage, J., dissenting); see
Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989) (concluding that
sovereign immunity was waived by the failure to provide a life preserver because the preserver
was an essential part of the swimming attire that the defendant had a responsibility to provide);
Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (holding that failure to provide
knee brace to football player fell within waiver provision because the brace was part of the
uniform that he should have been provided and failure to provide made the uniform defective).
9. Kerrville also states in its brief:
Further, there is insufficient evidence in the record that appellant negligently
used or misused Gary Ligon's medications. The only evidence offered by
appellees that might arguably be probative of the negligent use or misuse of
medications is certain testimony of Dr. Saul Rosenthal . . . that KSH should
have used an injectable form of medication, in liew [sic] of the medication
used.
Although Kerrville apparently contends that the evidence is factually insufficient to
support the trial court's denial of a judgment n.o.v., legal sufficiency is the only standard
by which a motion for judgment n.o.v. can be measured. A motion for judgment n.o.v.
can only be granted if there is no evidence to support the jury's findings. Carrow v.
Bayliner Marine Corp., 781 S.W.2d 691, 693 (Tex. App.-- Austin 1989, no writ). Clearly,
Dr. Rosenthal's testimony provides some evidence of Kerrville's use or misuse of Gary's
medications, thereby making the denial of the judgment n.o.v. proper.
10. Section 101.056 provides:
This chapter does not apply to a claim based on:
(1) the failure of a governmental unit to perform an act that the unit is
not required by law to perform; or
(2) a governmental unit's decision not to perform an act or on its failure
to make a decision on the performance or nonperformance of an act
if the law leaves the performance or nonperformance of the act to the
discretion of the governmental unit.
11. Kerrville also contended that the official immunity of its employees preserved its
governmental immunity under section 101.056. See City of Houston v. Kilburn, 849
S.W.2d 810, 812 (Tex. 1993) (governmental sovereign immunity remains intact if employee is
protected under doctrine of official immunity). In order to be protected, however, the
government must be able to show that the employee was exercising governmental discretion,
as opposed to medical discretion. See Kassen, 887 S.W.2d at 11. Because we have concluded
that Kerrville's staff exercised purely medical discretion in its decision to medicate Gary with
oral antipsychotic drugs before his release, the staff would not be protected by official
immunity. Hence, sovereign immunity cannot be preserved on this basis.
12. Antibuse is a medication given to alcoholics which makes them physically ill if they
drink alcohol.
13. Kerrville argues that there was no readily identifiable victim and, thus, it had no
duty to warn Rebecca because Gary had made no specific threats against her. See
Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 351 (Cal. 1976). Although we do not
decide the issue of duty based on a failure to warn Rebecca of Gary's imminent release and his
deteriorating mental condition, we note that a threat need not be made against a specific victim
in order for the duty to warn to be imposed. The Arizona Supreme Court has specified which
individuals fall within the duty to warn:
[W]e agree with those cases interpreting Tarasoff which state that a psychiatrist
should not be relieved of this duty merely because his patient never verbalized
any specific threat. . . . When a psychiatrist determines, or under applicable
professional standards reasonably should have determined, that a patient poses a
serious danger of violence to others, the psychiatrist has a duty to exercise
reasonable care to protect the foreseeable victim of that danger. The foreseeable
victim is one who is said to be within the zone of danger, that is, subject to
probable risk of the patient's violent conduct.
Hamman v. County of Maricopa, 775 P.2d 1122, 1127-28 (Ariz. 1989). We agree with the
Clarks that under this definition, Rebecca was a foreseeable victim. As Gary's wife, she was
certainly within the zone of danger, and she had been the victim of Gary's violence on many
previous occasions. Under the circumstances presented in the instant cause, Kerrville may
have had a duty to warn Rebecca, but since we have concluded that Kerrville owed a duty to
the general public to use reasonable care in the release of Gary, we do not reach the question
of Kerrville's duty to warn.
14. Kerrville initially contends that this case involves a medical malpractice claim
governed by Article 4590i and, therefore, the Clarks were required to prove through
expert testimony that the negligent treatment of Gary caused Rebecca's death. See Tex.
Rev. Civ. Stat. Ann. art. 4590i, § 1.03(a)(4) (West Supp. 1995); Wendenburg v. Williams,
784 S.W.2d 705, 706 (Tex. App.--Houston [14th Dist.] 1990, writ denied). Article 4590i,
however, concerns only claims against a health care provider for treatment that results in the
injury or death of a patient. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(a)(4) (West
Supp. 1995). Article 4590i is not controlling on the issues presented by the Clarks' wrongful
death claim.
| {
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258 Md. 263 (1970)
265 A.2d 447
SURKOVICH, ET AL.
v.
DOUB, ET AL.
[No. 365, September Term, 1969.]
Court of Appeals of Maryland.
Decided May 14, 1970.
The cause was argued before HAMMOND, C.J., and BARNES, FINAN, SMITH and DIGGES, JJ.
John P. Zebelean, Jr., and C. Victor McFarland for appellants.
Newton A. Williams and James D. Nolan, with whom were Nolan, Plumhoff & Williams on the brief, for appellees.
SMITH, J., delivered the opinion of the Court.
This case might well be entitled "Agneslane Re-visited", since the land sought to be rezoned is immediately adjacent to that involved in Agneslane, Inc. v. Lucas, 247 Md. 612, 233 A.2d 757 (1967), is a part of the same tract, one of the principal expert witnesses for the landowner in that case appeared for the landowner here, and that case has a direct bearing on our decision here. We shall reverse the action of the trial court which approved the rezoning.
One of the appellees, Ragan M. Doub (Doub), back in 1943, whether fortuitously or through foresight does not appear and is unimportant to our decision, made an extremely advantageous purchase of 333 acres of farmland at what is now the intersection of the Baltimore Beltway *265 and Route I-70-N. The State Roads Commission by condemnation took 134 acres of that land for the interchanges constructed at that location, described as "one of the largest in the entire country."
The land here in question was zoned R-6 when the Western Area Land Use Map was adopted by the Baltimore County Council on November 15, 1962. The 61.2 acre tract here under consideration may be described as lying in the southeast quadrant of the Beltway and Interstate Route I-70-N. The Baltimore County Board of Appeals described it as "shaped somewhat like the wedge of a pie", saying "the entire west, northwest and north sides of the property [are] bounded by the Baltimore County Beltway, a ramp from the Beltway to I-70, and I-70, both six lane dual highways." The east side of the property is bounded by Woodlawn Drive which extends from Johnnycake Road northerly under I-70-N through the Industrial Park to the north, and thence to Security Boulevard and the Beltway. Johnnycake Road is the boundary on the south.
Doub sought M.L. zoning for 56.5 acres of the tract and M.L.R. zoning on the 4.7 acres located on the northeast side of Johnnycake Road.
Woodlawn Drive was formerly known as Clarke Boulevard. The land under consideration in Agneslane, supra, was immediately across Woodlawn Drive or Clarke Boulevard from the subject property and was bounded by Route I-70-N on the north and the Johnnycake Junior High School on the south. That school lies immediately across Woodlawn Drive from the subject property. In a corner of this land is the new firehouse which this Court mentioned at p. 617 of Agneslane, supra, as "not amount[ing] to a change in the neighborhood."
The property here under consideration is currently being used as farmland and is improved by three or four buildings among which is a farmhouse. Doub was a technical party to Agneslane, being the owner of the reversionary interest in the tract which was subject to a ten year ground lease in favor of the corporate lessee, Agneslane, *266 Inc., with the further power in that corporation to convert the whole or part of the tract into a 99 year ground rent status. Doub owns in fee simple the tract here under consideration.
As in Agneslane, the deputy zoning commissioner approved the reclassification. The petition for reclassification in this case was filed on November 14, 1967, just over a month after the decision of this Court on October 12, 1967, in Agneslane. The Baltimore County Board of Appeals approved reclassification of the 56.5 acre tract from R-6 to M-L and denied the reclassification of the 4.7 acre tract from R-6 to M.L.R., stating on the latter point:
"The Board feels, however, that the portion of the property for which the petitioner requested M.L.R.; that is, the 4.7 acres on the north side of Johnnycake Road opposite the Westview Park development, should be retained as R-6 so that houses can be built on the portion of the property to face the existing houses on the south side of Johnnycake Road, which should reduce to a minimum any possible impact on the existing residential development."
The M.L.R. classification apparently was desired to provide some buffer between the major portion of the tract and the R-6 development known as "Westview Park" which is across Johnnycake Road to the southwest. Doub and the protesting property owners each appealed the action of the Board of Appeals to the Circuit Court for Baltimore County. The two appeals were consolidated and considered as one by the circuit court, which affirmed the action of the Board of Appeals. Both sides appeal that decision.
In presenting his case to the Board of Appeals Doub proceeded both on the theory of error in the original zoning and change in the character of the neighborhood sufficient to justify his request for reclassification. It does *267 not clearly appear upon which ground the board and the court rested their respective opinions.
In Agneslane, supra, the requested rezoning was from R-6 (one or two-family residential use) to R-A (residential use apartment). That case was heard before the same individuals constituting the Board of Appeals who sat in this case. A divided board there rejected the claim of error in the map as well as the allegation of change in the character of the neighborhood. In Agneslane the contentions relative to error in the map centered around the claim that the County Council underestimated the number of people who would be occupying the area embraced within the "Western Planning Area" of the county and, therefore, had provided insufficient R-A zoned acreage to house the unexpected influx. It was claimed that the change in the character of the neighborhood consisted in the actual construction (as opposed to the planning of) Clarke Boulevard or Woodlawn Drive and Route I-70-N, the expansion of the Social Security complex which had purchased 53 additional acres, the rapid growth of the Meadows Industrial Park, and the construction of the new firehouse. Mr. Bernard Willemain was one of the principal witnesses in that case.
The principal witness for Doub in this case was the same Mr. Willemain, "a consultant in the fields of city planning, site planning, and zoning", who frequently appears in cases of this kind. He said the present R-6 classification is erroneous. This time he based his opinion on the fact that it "is one of the few vacant tracts of land left in this part of Baltimore County" and "is ideally suited for more intensive use, in terms of public facilities, such as sewer and water, roads that will carry heavy traffic, good topography, a good relationship to other community facilities, that would serve the tract, affording retail services to the users of the tract, and in this particular case, a very close relationship to the well established and mostly improved Meadows industrial tract, and the Social Security installation." He said that the property should be "devoted to its highest and best use" and *268 he was of the opinion "that the light industrial classification, as requested by Mr. Doub, represents the highest and best use for the property." He also testified to change in the immediate neighborhood which he thought justified the requested reclassification. As evidence of this change he pointed to the construction of I-70-N and Woodlawn Drive; the widening of the Beltway to six lanes and lighting; the construction of the firehouse; and the expansion of the Social Security complex north of I-70-N in the Meadows Industrial Park. To buttress his opinion, both as to error and as to change, he pointed to three zoning reclassifications to M.L.R. from various residential classifications embracing approximately 200 acres "less than a mile away" which took place between September, 1965, and November, 1966. They were all north of subject property and on the opposite side of the Beltway.
Mr. Doub described the buildings erected to the north on the other side of Route I-70-N and described the various out-conveyances from his tract including the conveyance for the firehouse in a corner of this land and the Johnnycake Junior High School. He saw traffic on the nearby roads, the dust "from the oxidized cement", noise and interchange lights as the principal evidence of change. He made no mention of error in the original zoning.
Mr. Frederick P. Klaus was qualified as an expert in real estate, being a realtor and real estate appraiser. He said the County Council did not provide sufficient industrial zoning in the Western Area 2B map saying:
"I base it on the need, that was not anticipated at the time of the adoption of the land use map. The industrial land that they provided for, and those that already can be developed with utilities, has practically been all developed, with the exception perhaps of a few acres in the Meadows Industrial Park.
"There were other lands zoned, on the other side of the Beltway, where there are utility problems. *269 There are other lands zoned farther west, that have no access [to any of the rapid roads, the Beltway or 70-N] at this time and no utilities."
He regarded the three cases cited by Mr. Willemain as evidence of significant change in the neighborhood as well as proof that "the County Council did not provide enough land for future industrial growth". He said the R-6 zoning was erroneous because of the noise and the lights from the interchange and did not believe an R-6 developer could readily sell his houses. He was of the opinion that the property should have been zoned as was the property to the north of I-70-N stating as his reason "the fact that the Beltway was in existence at the adoption of the map, and also the fact it was known that 70-N would be constructed at this location, and it was known at the time that Woodlawn Drive would be extended, and tie into the industrial park on the north of 70-N." He considered land zoned industrial as not having utilities available if it would take as long as six months to get utilities to it.
Mr. Philip E. Klein, a real estate broker, testified that there was error in the original map, giving as his reasons the fact that at the time the map was adopted the route of I-70-N was fixed, the Meadows Industrial Park was there, movement of people into the county, movement of industry into the county, the need for a balanced economy and the fact that the growth of the Social Security complex was underestimated. He did not regard R-6 zoning as the highest and best use for the property nor one calculated "to satisfy the needs of the community and the county, the neighborhood."
Mr. H.B. Staab, Director of the Industrial Development Commission for Baltimore County, was called as a witness by Doub. He testified to the need for additional industrial land in Baltimore County. He regarded the subject land as ideally situated for this purpose. He pointed out that this tract is serviced by utilities, sewer *270 and water, and that of the approximately 500 acres in the southwest quadrant of Baltimore County zoned industrial none so zoned is serviced by such utilities. He was obliged to admit that the unused "inventory" of land zoned industrial in Baltimore County is about 12,000 acres, although not agreeing that the fact that it is zoned industrial makes it available. He said 300-500 acres is used each year for industrial purposes.
Mr. Carl Heinmuller, realtor, testified for the protestants that in his opinion the original zoning was proper. Mr. Fred W. Tuemmler, an expert planner, testified for the protestants that the original R-6 zoning was correct and there had not been sufficient changes in the neighborhood to justify the reclassification.
In Wells v. Pierpont, 253 Md. 554, 253 A.2d 749 (1969), we said:
"It is now firmly established that there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning or comprehensive rezoning or else evidence of substantial change in the character of the neighborhood. Minor v. Shifflett, 252 Md. 158 (1969), and the cases therein cited; Randolph Hills, Inc. v. Whitley, 249 Md. 78 (1968); Woodlawn Area Citizens Ass'n v. Board, 241 Md. 187 (1966). And, of course, the burden of proof facing one seeking a zoning reclassification is quite onerous. Agneslane, Inc. v. Lucas, 247 Md. 612, 618 (1967), and the cases therein cited." Id. at 557.
This position on the part of the Court may be more readily understood when it is noted that in 1 Yokley, Zoning Law and Practice, § 3-5 (3rd ed. 1965), the author states:
"Spot zoning has a very erosive effect on any comprehensive plan. This for the reason that *271 spot zoning is the very antithesis of sound community planning and zoning. It is a high wave of disturbing character, spawned by legislative gusts that mar an otherwise calm sea of orderly community life.
"A comprehensive plan must be equated with the generally recognized objective of zoning laws which is that such laws seek a well-balanced community by the prevention of an unreasonable, arbitrary or capricious exercise of the local legislative power resulting in haphazard or piecemeal zoning.
"* * * The inherent vice in spot zoning is that it is a departure from the comprehensive plan. Thus, spot zoning contravenes the constitutional and statutory principle of zoning by districts in consonance with the character of the lands and structures and use suitability, and uniformity of use within the division.
"The effect of spot zoning is to produce a change out of harmony with the comprehensive plan for the good of the community as a whole."
As was pointed out by Chief Judge Prescott in Miller v. Abrahams, 239 Md. 263, 266, 211 A.2d 309 (1965), with reference to this very same zoning map, when we consider the question of mistake we consider the "matter of whether or not the Council made a basic and actual `mistake', as that term is used in zoning law, at the time when it classified the property as R-6." (emphasis in the original)
The arguments propounded relative to the need for industrial land ignore one of the main concepts of zoning and that is that there should be a comprehensive, long-range view of the entire area. It can well be argued with reference to any given tract of land that it is well-suited for industrial purposes, commercial purposes, apartment purposes, or anything else for which it does not happen to be zoned at that moment. There was testimony as to the *272 need for additional industrial land in Baltimore County, but no testimony that the County Council in adopting the zoning map had failed on the whole at that time to provide for orderly industrial expansion in Baltimore County or in the area embraced by this map.
Basically the same arguments made in this case relative to industrial zoning were made in Agneslane, supra, as to apartments. They were rejected by the same Board of Appeals.
It is specifically noted that Doub's experts, in citing their reasons for believing there was error in the zoning map, have, to a large degree, talked in generalities. They have not presented real specifics of "chapter and verse" for their contention that the County Council committed error. They have made statements relative to industrial land and the need for it, but they have come up with no detailed analysis in the nature of a bill of particulars showing what should have been reasonably foreseen by the Council, but was ignored by it. The fact that a tract of 200 acres had been rezoned from residential to industrial, for whatever reason, certainly in and of itself was not evidence of error in the map.
As was said by Chief Judge Prescott for the Court in Miller v. Abrahams, supra, "[T]he prevailing general rule, almost universally followed, is that an expert's opinion is of no greater probative value than the soundness of his reasons given therefor will warrant. Cf. State, etc. v. Critzer, 230 Md. 286." Id. at 273. See also Creswell v. Baltimore Aviation Service, Inc., 257 Md. 712, 264 A.2d 838 (1970).
The rezoning classification cases cited are not impressive as evidence of change in the neighborhood. Property nearly a mile away on the opposite side of the Beltway and on the opposite side of Route I-70-N, two real barriers, can hardly be called a part of the same neighborhood.
To argue that the network of highways here existent is evidence of change in the neighborhood justifying rezoning, ignores the fact that this very network of highways *273 was laid down on the plan when the zoning map was adopted. Surely, it was contemplated that some change would come about as a result of those highways. In other words, the change is change that was contemplated at the time the map was adopted. See Chatham Corp. v. Beltram, 252 Md. 578, 585, 251 A.2d 1 (1969); and Smith v. Co. Comm'rs of Howard Co., 252 Md. 280, 249 A.2d 708 (1969). In MacDonald v. County Board, 238 Md. 549, 210 A.2d 325 (1965), Judge Oppenheimer said for the Court:
"The building of a golf course, the dredging of Swan Creek, the reservation of a school site within the tract, and the authorization of public utility services for the Tantallon enterprise are as consistent with increased rural residential development as they are with the building of highrise apartments. The characterization by the appellants of these alleged changes as `bootstrap' arguments, in our opinion, is appropriate. * * * The completion of the Woodrow Wilson Bridge and Anacostia Freeway listed as additional changes presumably were envisaged in the comprehensive zoning plan, adopted by the legislative body only a little less than five years before the Land Company's application. In any event, the Bridge and Freeway are some miles away." Id. at 555-56.
In France v. Shapiro, 248 Md. 335, 236 A.2d 726 (1968), Judge Singley said for the Court:
"It is well recognized that the location in a residential zone of improvements of a character permitted by the ordinance, even although not necessarily compatible with a residential development, is not the type of change of character of a neighborhood which will justify reclassification. Agneslane, Inc. v. Lucas, supra (fire house); Baker v. Montgomery County Council *274 [241 Md. 178, 215 A.2d 831 (1966)] (school); Levy v. 7 Slade, Inc., 234 Md. 145, 198 A.2d 267 (1964) (synagogue, school, parking lot, powerhouse); Kaslow v. Mayor and Council of Rockville, 236 Md. 159, 202 A.2d 638 (1964) (church); Montgomery County v. Ertter, 233 Md. 414, 197 A.2d 135 (1964) (armory, motor shed, paved area). But compare Meginniss v. Trustees of the Sheppard and Enoch Pratt Hospital, 246 Md. 704, 229 A.2d 417 (1967), which involved an intensification of institutional uses without an insulating line of demarcation.
"Nor should an improvement in water and sewage facilities, standing alone, be taken as a change of conditions affecting the neighborhood. MacDonald v. County Board, 238 Md. 549, 556, 210 A.2d 325 (1965). But compare MacDonald with Rohde v. County Board of Appeals for Baltimore County, 234 Md. 259, 199 A.2d 216 (1964); and with White v. County Board of Appeals, 219 Md. 136, 148 A.2d 420 (1959)." Id. at 343.
A situation strikingly similar to the one at hand was presented to the Court in Polinger v. Briefs, 244 Md. 538, 224 A.2d 460 (1966), where Chief Judge Hammond said:
"Further indication of the arbitrary and capricious nature of the rezoning by the Council is the fact that in 1962 it found no evidence of change in the single-family residential development of the area which would justify rezoning for multi-family density but in 1964, without any change in circumstance, fact or applicable law, it found change sufficient to sustain a rezoning for fourfold residential density. This can amount to no more than the mere impermissible change of mind or heart which was condemned in Kay Const. Co. v. County Council, 227 Md. 479, and Schultze v. Montgomery County Bd., *275 230 Md. 76. See also Mettee v. County Comm'rs, 212 Md. 357, 365-66; Cohen, Maryland Administrative Law, 24 Md. L. Rev. 1, 20-24, and cf. Alvey v. Hedin, 243 Md. 334; The Chatham Corp. v. Beltram, 243 Md. 138; Woodlawn Assoc. v. Board, 241 Md. 187." Id. at 541.
See also Lambert v. Seabold, 246 Md. 562, 229 A.2d 116 (1967), where in 1961 the Board of Appeals of Baltimore County held there were no changes which warranted a reclassification and in 1965 held without citing any subsequent change in the character of the area subsequent to the comprehensive rezoning of 1960:
"`the original zoning on the 1960 map was in error because of the complete failure of the Council to consider existing uses at that time, and its complete failure to follow the logical recommendation of the Planning Board which did not only recognize existing uses of the subject property, but was completely in accord with reasonable uses in the immediate vicinity which the map, as adopted, was certainly not. * * *.'" Id. at 564.
Citing Polinger v. Briefs, supra, this was held to "amount to no more than [a] mere impermissible change of mind or heart".
For the Board of Appeals "to blow hot and blow cold" as it has done in Agneslane, supra, and this case on basically the same facts on properties lying along side of each other, we hold to be arbitrary and capricious conduct. Accordingly, the trial court should have affirmed the denial of the M.L.R. zoning and should have reversed the granting of the M.L. zoning.
Order affirmed in part and reversed in part and case remanded for passage of an order in conformity with this opinion; appellees to pay the costs.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3596
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Felton Gooseberry, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 6, 2006
Filed: January 20, 2006
___________
Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
___________
PER CURIAM.
Felton Gooseberry appeals the sentence the district court1 imposed after he
pleaded guilty to distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii). His counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967); Gooseberry has filed a pro se supplemental brief,
arguing that his sentence should be vacated under Blakely v. Washington, 542 U.S.
296 (2004).
1
The Honorable Stephen Limbaugh, United States District Judge for the
Eastern District of Missouri.
We enforce the broad appeal waiver included in Gooseberry’s written plea
agreement: the district court conducted a proper Federal Rule of Criminal Procedure
11 colloquy and discussed the appeal waiver with Gooseberry, who affirmed that his
plea was voluntary and that he understood the plea agreement and the waiver; this
appeal falls within the scope of the waiver; and no injustice would result. See United
States v. Andis, 333 F.3d 886, 889-92 (8th Cir.) (en banc) (court should enforce
appeal waiver and dismiss appeal where it falls within scope of waiver, both plea
agreement and waiver were entered into knowingly and voluntarily, and no
miscarriage of justice would result; one important way district court can ensure plea
agreement and appeal waiver are knowing and voluntary is to properly question
defendant about decision to enter agreement and to waive right to appeal), cert.
denied, 540 U.S. 997 (2003). The waiver also covered any issues under United States
v. Booker, 543 U.S. 220 (2005). See United States v. Reeves, 410 F.3d 1031, 1034-35
(8th Cir.) (right to appeal under Booker is among rights waived by broad appeal
waiver, even if defendant did not anticipate Booker ruling), cert. denied, 126 S. Ct.
469 (2005).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues not covered by the waiver.
Accordingly, we dismiss the appeal and grant counsel’s motion to withdraw.
______________________________
-2-
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165 F.2d 216 (1948)
SEATTLE BREWING & MALTING COMPANY, a Corporation, Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 11467.
Circuit Court of Appeals, Ninth Circuit.
January 8, 1948.
Rehearing Denied February 18, 1948.
Jones & Bronson, H. B. Jones, A. R. Kehoe, R. B. Hooper, Chadwick, Chadwick & Mills, and Stephen F. Chadwick, all of Seattle, Wash., for petitioner.
Theron L. Caudle, Asst. Atty. Gen., and Sewall Key, Lee A. Jackson, Melva M. Graney, and I. Henry Kutz, Sp. Assts. to Atty. Gen., for respondent.
Before DENHAM, HEALY, and BONE, Circuit Judges.
Rehearing Denied February 18, 1948. See 166 F.2d 326.
PER CURIAM.
This, as the companion case of Commission of Internal Revenue v. Rainier Brewing *217 Co., 9 Cir., 165 F.2d 217, presented to the Tax Court "hybrid questions of mixed law and fact [and] their resolution because of the fact element involved will * * * afford little concrete guidance to future cases." We hence do not consider the petitioner's contention that "the facts found fall short of meeting statutory requirements." Bingham v. Commissioner, 325 U. S. 365, 370, 65 S.Ct. 1232, 89 L.Ed. 1670; Choate v. Commissioner, 324 U.S. 1, 65 S. Ct. 469, 89 L.Ed. 653.
The decision of the Tax Court, 6 T.C. 856, is affirmed.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DANIEL VERNON SCOTT, Appellant.
No. 1 CA-CR 15-0382
FILED 12-22-2016
Appeal from the Superior Court in Yavapai County
No. P1300CR201400436
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee
Yavapai County Public Defender’s Office, Prescott
By John Napper, Andrew R. Falick
Counsel for Appellant
STATE v. SCOTT
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill1 delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.
G E M M I L L, Judge:
¶1 Daniel Vernon Scott appeals his conviction and sentence for
one count of disorderly conduct with a deadly weapon, domestic violence
related. Scott argues the superior court erred in denying his pretrial
motions to compel production of ten years of the victim’s mental health
records for an in camera inspection. He also contends the court erred by
limiting use of evidence of the victim’s past interactions with law
enforcement. For the following reasons, we affirm.
BACKGROUND
¶2 We view the facts and all reasonable inferences therefrom in
the light most favorable to upholding the verdict. State v. Harm, 236 Ariz.
402, 404 n.2, ¶2 (App. 2015).
¶3 Scott and J.S. (“Victim”), a married couple, were involved in
a physical altercation on or about May 3, 2014. The State indicted Scott on
two counts of aggravated assault, domestic violence related, each a Class 3
felony, and two counts of misconduct involving weapons, each a Class 4
felony.
¶4 Scott acknowledges Victim was injured and that he
discharged a firearm during the incident. It is undisputed that Victim
suffers from paranoid schizophrenia and takes medication to subdue the
effects, including “auditory hallucinations.” On cross examination, Victim
admitted to a prior arrest for aggravated assault against Scott, a diagnosis
of paranoid schizophrenia, a prior commitment to a mental institution, and
a susceptibility toward confusion and memory loss. Scott claimed Victim
attacked him and his reaction was in self-defense. He was permitted to
testify to prior attacks by Victim, her descriptions of the violent content of
1 The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2
STATE v. SCOTT
Decision of the Court
the voices in her head, and his knowledge of her past diagnoses and
prescriptions.
¶5 The jury found Scott guilty of a single count of the lesser
included offense of disorderly conduct with a deadly weapon, domestic
violence related.2 The superior court imposed a sentence of two years’
imprisonment with 389 days of presentence incarceration credit. Scott
timely appeals. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
ANALYSIS
I. Denial of Request for Victim’s Mental Health Records
¶6 Scott argues the court erred in denying his pretrial motion to
compel discovery of Victim’s mental health records for an in camera review.
He contends the records were crucial to his defense and relevant for
impeachment purposes. We disagree.
¶7 Whether a criminal defendant is entitled to discovery of
certain evidence, including mental health records, is a matter entrusted to
the superior court’s sound discretion. State v. Tyler, 149 Ariz. 312, 314 (App.
1986). This court will not disturb a ruling on a discovery request absent an
abuse of that discretion. State v. Fields, 196 Ariz. 580, 582, ¶ 4 (App. 1999).
“To the extent [Scott] sets forth a constitutional claim in which he asserts
that the information is necessary to his defense, however, we will conduct
a de novo review.” State v. Connor, 215 Ariz. 553, 557, ¶ 6 (App. 2007).
¶8 It is well-established that there is no general federal or state
constitutional right to pretrial discovery. State v. O’Neil, 172 Ariz. 180, 182
(App. 1991). Additionally, a victim of a crime generally “has the right to
refuse to hand over medical records, pursuant to Arizona’s Victims’ Bill of
Rights.” State v. Sarullo, 219 Ariz. 431, 437, ¶ 20 (App. 2008); see also Ariz.
Const. art. 2, § 2.1(A)(5). This right is not absolute, and in some cases a
victim’s rights may be outweighed by a defendant’s due process rights. See
State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232, 240 (App. 1992).
¶9 To the extent a victim’s rights restrict a defendant’s access to
information “essential to preparation for effective, reasonable cross-
examination or impeachment of the victim,” such restrictions “must be
2 Upon pretrial motion by the State, the superior court dismissed the
two allegations of misconduct involving weapons, Counts 3 and 4 of the
indictment.
3
STATE v. SCOTT
Decision of the Court
proportionate to the interest of protecting the victim as balanced against the
defendant’s due process right to a fundamentally fair trial.” Roper, 172 Ariz.
at 240. Further, the defendant has to demonstrate a “substantial need” for
the information that “would, at least potentially, amount to one of
constitutional dimension.” Connor, 215 Ariz. at 561, ¶ 22. As such, the
superior court must weigh a defendant’s proffered need with a victim’s
established rights.
¶10 Before trial, Scott filed motions and offers of proof requesting
that the court order Victim to disclose all of her mental health records from
the previous ten years for an in camera review. He argued that the mental
health records might contain exculpatory evidence and would support his
claim of self-defense. In response, the State argued that Scott failed to meet
his burden of establishing the necessity of the records because his
incriminating statements to police on the night of the incident contradicted
his theory of self-defense, rendering Victim’s mental health issues
irrelevant.
¶11 After an evidentiary hearing on December 3, 2014, the court
denied Scott’s motion for the following reasons: 1) Victim had not waived
her physician-patient privilege; 2) Scott’s offer of proof fell short of a
“constitutional” need as described in Connor; and 3) the court had no
authority to order the records from the Veterans Administration (“VA”), a
federal agency. We need not address each of the superior court’s reasons
for denying the motion because we may affirm such a ruling if the result is
legally correct on any basis. See State v. Carlson, 237 Ariz. 381, 387, ¶ 7
(2015). Scott argues on appeal that his rights to present a complete defense
and to cross-examine witnesses outweigh Victim’s constitutional
protections. We conclude that the superior court did not err in denying
Scott’s request for Victim’s mental health records on the basis of the
Victims’ Bill of Rights. Because of our resolution of this issue, we need not
address Victim’s statutory privileges, nor the potential waiver thereof. 3
¶12 Scott speculates that the “records contain information that
would call into question the victim’s ability to perceive events and would
have provided impeachment of her testimony.” However, Scott provides
no basis for the court to conclude that the mental health records he sought
contained impeachment evidence beyond what he already knew, or beyond
3 The State asserts that the records sought were protected by the
physician-patient privilege, A.R.S. § 13-4062(4), and perhaps also by the
psychologist-client privilege, A.R.S. § 32-2085.
4
STATE v. SCOTT
Decision of the Court
that which Victim admitted in her pretrial interview with the State’s
investigator, or beyond that which Scott developed during an extensive
cross-examination of Victim. “[M]ere conjecture without more that certain
information might be useful as exculpatory evidence is not sufficient to
reverse a trial court’s denial of a request for disclosure.” State v. Hatton, 116
Ariz. 142, 150 (1977). Further, the jury received ample evidence from which
it could infer Victim’s perception and memory of the assault were affected;
thus, mental health records and prescriptions issued years before the
assault, offered for impeachment, could properly be excluded as collateral
and cumulative. See Tyler, 149 Ariz. at 314 (no abuse of discretion in
denying discovery of medical records where effect of witness’s illness and
medication on his memory was already known by defendant). Scott was
permitted to cross-examine Victim without restriction regarding her
mental-health condition and medications, and we therefore discern no error
in the superior court declining to order an in camera review of her mental
health records for the past ten years.
¶13 Additionally, the record demonstrates the court’s efforts to
strike a proper balance between Scott’s rights and Victim’s rights. On April
4, 2015, the court reconsidered the request for Victim’s mental health
records after learning she had divulged certain mental health issues during
an interview with a State investigator. Without specifically addressing
whether the interview constituted a waiver of privilege, the court ruled that
it did not affect its decision to deny Scott’s request for an order compelling
production of the VA mental health records.4 Nevertheless, the court stated
that it “could see some relevance” in medical information from two months
prior to and including the date of the incident, and the court therefore
ordered Victim to disclose to Scott any medical records in her possession,
including prescriptions.5 Further, the superior court considered an
additional offer of proof on this matter on April 24, 2015, the third day of
trial, after the State rested its case. The record demonstrates that the court
considered and weighed the evidence presented in Scott’s offers of proof
and at the evidentiary hearings before denying the request to compel
4 We express no opinion regarding whether a defendant’s due process
rights may override statutory privileges because, as noted previously, we
resolve this issue on the basis of the Victims’ Bill of Rights.
5 The record does not reveal whether Victim disclosed any medical
information pursuant to this order.
5
STATE v. SCOTT
Decision of the Court
Victim’s mental health records for in camera review. We conclude the court
committed no abuse of discretion or constitutional or legal error.
II. Other Act Evidence
¶14 An appellate court “will not reverse the [trial] court’s rulings
on issues of the relevance and admissibility of evidence absent a clear abuse
of its considerable discretion.” State v. Davis, 205 Ariz. 174, 178, ¶ 23 (App.
2002). A conviction will not be reversed for evidentiary error unless this
Court determines that there exists a “reasonable probability” that the jury’s
verdict would have been different had the improperly excluded evidence
been admitted. State v. Van Adams, 194 Ariz. 408, 416, ¶ 23 (1999).
¶15 When a defendant argues self-defense, specific acts of
violence by the victim are admissible if known to the defendant and offered
to prove the defendant’s state of mind. See State v. Santanna, 153 Ariz. 147,
149 (1987); see also Ariz. R. Evid. 404(b). When making a Rule 404(b)
determination, the superior court must determine whether the evidence is
“clear and convincing as to the conduct and that the person alleged to have
committed it did so, although ultimately those facts are left to the jury to
decide if the evidence is admitted.” State v. Fish, 222 Ariz. 109, 123, ¶ 43
(App. 2009). Next, the superior court must determine whether the
evidence: 1) is offered for a proper purpose; 2) is relevant to prove the stated
purpose; and 3) has sufficient probative value that is not outweighed by
undue prejudice under Rule 403. Id.
¶16 Specific acts by the victim that influence the defendant’s state
of mind are admissible
only if the defendant knew of them . . . or if they are directed
toward third persons relating to or growing out of the same
transaction, or so proximate in time and place and
circumstances as would legitimately reflect upon the conduct
or motives of the parties at the time of the affray.
Connor, 215 Ariz. at 559, ¶ 13 (quoting State v. Zamora, 140 Ariz. 338, 341
(App. 1984)). Evidence of an alleged act may be precluded if it relates to a
single act and could potentially distract jurors and unfairly prejudice the
victim. Fish, 222 Ariz. at 121, ¶ 34.
¶17 Scott sought to admit specific instances of Victim’s
interactions with law enforcement, including complaints, arrests, and
6
STATE v. SCOTT
Decision of the Court
booking photos from 2006-2013.6 The superior court denied Scott’s initial
motion, finding the acts referenced were not “relevant to prove the issue of
self-defense, per Rule 403.” Scott filed a motion to reconsider, and, after
hearing further argument by both parties, the superior court permitted, as
relevant regarding self-defense, testimony and evidence of Victim’s prior
arrest for aggravated assault directed toward Scott. The court excluded the
other instances of other act evidence as irrelevant, explaining:
Now, that doesn’t mean the defendant can’t testify that he
knew about these other potential incidences, should he
choose to testify, but I think in purpose of the case-in-chief,
they’re too old; they’re disorderly, but I don’t find them to be
aggressive behavior. And you don’t get to act out against
someone because they’re disrupting the peace. That’s what
she was charged with, and those issues do not rise to the level
of 404(b). I don’t think they’re relevant. I think they’re just
being used to try and muddy the victim, and I don’t think
that’s appropriate under 404.
The court further clarified that if Scott chose to testify, he could mention
other known instances of violence, diagnoses, medications and the like, but
in his case-in-chief, “for purposes of 404(b), to show that . . . his actions were
based on some prior fear or belief that self-defense was necessary, and
keeping it to that narrow focus, I’m only finding the [2013 aggravated
assault] case applies.”
¶18 On this record, the superior court evaluated the evidence in
accordance with the rules of evidence and acted within its broad discretion
in precluding some of Victim’s past interactions with law enforcement as
irrelevant to Scott’s claim of self-defense.
6 In support of the initial Rule 404(b) factor, the State did not dispute
that Victim was the subject of the law enforcement encounters proffered by
Scott.
7
STATE v. SCOTT
Decision of the Court
CONCLUSION
¶19 For the forgoing reasons, we affirm Scott’s conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
8
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309 F.2d 146
ESTATE of L. C. HUNT, Deceased, Appellant,v.UNITED STATES of America, Appellee.
No. 19671.
United States Court of Appeals Fifth Circuit.
October 23, 1962.
Rehearing Denied November 27, 1962.
L. D. Gilmer, Houston, Tex., for appellant.
Louis D. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Martin B. Cowan, Meyer Rothwacks, Attys., Dept. of Justice, Washington, D. C., William Wayne Justice, U. S. Atty., Tyler, Tex., Lloyd W. Perkins, Asst. U. S. Atty., for appellee.
Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.
TUTTLE, Chief Judge.
1
This is an appeal from a judgment of the trial court, sitting without a jury, dismissing appellant-taxpayer's suit for refund of estate taxes on the ground that a prior suit for refund ending in a judgment for the taxpayer was res judicata of the issues involved in the present case.
2
The facts are not in dispute, having been fully stipulated by the parties. These facts are that the decedent died on April 22, 1953, and his wife subsequently qualified as executrix. On July 22, 1954, Form 706 (Federal Estate Tax Return) was duly filed; on April 9, 1956, the taxpayer's estate made a payment of the decedent's income tax deficiency for the year 1952; on March 11, 1957, appellant paid $15,000 on account of deficiencies in the estate tax asserted by agents of the Commissioner of Internal Revenue, and on June 22, 1957, the balance of the asserted deficiency in estate tax was paid; on November 8, 1957, a claim for refund of estate taxes was filed alleging overpayment for three items. This claim did not include an alleged overpayment because of the failure by the taxpayer's representative to deduct the accrued indebtedness arising on account of the decedent's 1952 federal income tax, an item which was clearly deductible; on May 13, 1958, taxpayer's claim for refund was formally rejected; on October 24th, taxpayer filed a complaint in the United States District Court for alleged overpayment, setting forth only the grounds described in the claim for refund. June 8 and 9, 1959, trial was held without a jury on taxpayer's suit for refund and the case was submitted to the trial court; on June 19, 1959, taxpayer filed another Form 843 (Claim for Refund), claiming a refund for payment of federal estate taxes attributable to taxpayer's failure to claim a deduction for decedent's liability with respect to his income taxes for 1952. On August 31, 1959, final judgment was entered in the District Court, decreeing a recovery by taxpayer on two grounds, and denying a recovery to the extent based on the remaining ground alleged by the taxpayer in that suit; on June 6, 1960, the claim for refund, filed on June 19, 1959, was formally rejected by the Commissioner; on September 1, 1961, taxpayer commenced this action based on the claim for refund rejected on June 6, 1960.
3
The question posed by this record is whether, as decided by the trial court, the taxpayer's recovery by suit of the amount of overpayment of estate taxes by the decedent's estate, based upon his earlier contention that there were three grounds for recovery, whereas it is now asserted that there was a fourth ground, is a final bar of his right to recover on the fourth ground, which was not asserted in the original suit.
4
The most recent statement by the United States Supreme Court, dealing with the principle of res judicata in the field of federal taxation, is found in the case of Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898. There the Court said, on page 597, 68 S.Ct. on page 719 of the opinion:
5
"* * * The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound `not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' Cromwell v. County of Sac, 94 U.S. 351, 352 [24 L.Ed. 195]. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment. See Von Moschzisker, `Res Judicata,' 38 Yale L.J. 299; Restatement of the Law of Judgments, §§ 47, 48."
6
This Court had previously recognized this principle of law in United States v. C. C. Clark, Inc., 5 Cir., 159 F.2d 489, where we said:
7
"Income tax liability for any one year is a single cause of action and each taxable year constitutes a separate cause of action, and in every suit for refund one of the questions presented is the determination of the amount by which the taxpayer has overpaid his taxes for the year involved."
8
Moreover, in view of the argument made by the appellant here, later discussed, we think it particularly appropriate to quote the following language from the concurring opinion by Judge Hutcheson in the Clark case:
9
"The refund claim of which the dissent makes so much is not the cause of action. It is but a procedural step in asserting it. There was never any impediment in the way of the taxpayer's claiming on the grounds he now sues on. Having pitched his prior suit on other grounds, he may not complain if he finds his recovery barred by the judgment in that suit."
10
It is to be noted that Judge Sibley's dissent in the Clark case was based on the fact that "the Supreme Court has not spoken on the precise point." The Supreme Court did, of course, speak on the precise point in the Sunnen case, which was decided a year later.
11
While the Supreme Court has not spoken on the precise point next urged by the Commissioner, that is, that the estate tax liability is a single liability, and in the case of a claim of overpayment may be the subject of a single cause of action only, we do find substantial authority for this proposition. See Van Dyke v. Kuhl, 7 Cir., 171 F.2d 187; Cleveland v. Higgins, 2 Cir., 148 F.2d 722, cert. denied, 326 U.S. 722, 66 S.Ct. 27, 90 L.Ed. 428, and more particularly Guettel v. United States, 8 Cir., 95 F.2d 229, 118 A.L.R. 1060, cert. denied 305 U.S. 603, 59 S.Ct. 64, 83 L.Ed. 383. Conceptually it seems that no distinction can be drawn between the nature of a cause of action arising from the alleged overpayment of estate taxes on the one hand, and one arising from the alleged overpayment of a single year's income tax on the other.
12
The appellant here contends vigorously, however, that because of the fact that no claim for refund had been filed and rejected by the Commissioner prior to the decision of the District Court in the first refund suit, the taxpayer was not legally able to include the present claim in that earlier suit. The answer to that contention, we think, is best stated by the quotation from Judge Hutcheson's concurring opinion in the Clark case above. There was nothing to prevent the taxpayer from including all of its asserted claims for refund when she filed the first claim. (Of course, the taxpayer contends that there was an oversight on the part of the then counsel for the estate.) We state this as being "no excuse" because we know of no exception to the rule of application of the doctrine of res judicata that exempts a person from its application merely because his effort to break a single cause of action into two or more parts was due to excusable oversight. Moreover, it is plain from the chronology above outlined that the claim for refund on this newly discovered ground was known to the taxpayer and was actually made the basis of a subsequent claim for refund before the trial court had made its final judgment or decided the case then pending. The taxpayer made no effort to cause the Court to suspend its decision, awaiting a rejection of the later claim for refund before concluding the litigation. Nor did the taxpayer elect to seek a prompt rejection of his claim for refund prior to the decision by the trial court some two months later, during which time, under the Federal Rules of Civil Procedure, rule 15, 28 U.S.C.A. the taxpayer would have had the right to amend his complaint to include the additional ground.
13
We find that the decision of the Court of Appeals for the Eighth Circuit, in Guettel v. United States, supra, clearly rules the case before us. That case, like this, had to do with a subsequent effort to file a suit for refund for overpayment of estate taxes where a prior suit had been filed and gone to judgment based on other claims of the estate. Dealing particularly with the argument that appellant here was unable to amend her prior suit because there had been no rejected claim for refund on the later ground, the following language of the Court in the Guettel case is clearly apposite:
14
"The appellants argue that because they had filed no claim for refund based upon the inclusion of the value of Missouri real estate in gross estate, prior to their suit in the Court of Claims, and could, therefore, not have successfully urged that ground in that court, the judgment which they recovered should not bar this action. A claim for refund is a procedural prerequisite to the bringing of suit, United States v. Felt & Tarrant Manufacturing Co., 283 U.S. 269, 272, 51 S.Ct. 376, 377, 75 L.Ed. 1025, which can be waived by the government, and, `if compliance is insisted upon, dismissal of the suit may be followed by a new claim for refund and another suit within the period of limitations.' Tucker v. Alexander, 275 U.S. 228, 231, 48 S.Ct. 45, 46, 75 [72] L.Ed. 253. The existence of the appellants' cause of action was in no way dependent upon their claims for refund, and a single cause of action for the recovery of a tax cannot be split up by the filing of separate claims for refunds based upon different grounds. See Chicago Junction Rys. & Union Stock Yards Co. v. United States, 80 Ct.Cl. 824, 10 F.Supp. 156, 158, 159, supra." 95 F.2d 229, 231.
15
Res judicata is a harsh rule when applied to prevent a litigant from asserting a claim which the law holds to be a part of a single cause of action previously litigated. So, too, is the application of the various statutes of limitation. However, since the decision of the United States Supreme Court in Tait v. Western Maryland Rwy. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, it has been clear that the doctrine of res judicata applies to federal tax cases just as it does in other causes of action. The Court there said, at page 624, 53 S.Ct. at page 707:
16
"We are not persuaded that the operation of the principle of the thing adjudged in tax cases will, as petitioner insists, produce serious inequalities, or result in great confusion; but any adverse consequence in the administration of the law furnishes no sufficient reason for the abandonment of a rule founded in sound policy, to the enforcement of which suitors are in justice entitled."
The judgment of the trial court is
17
Affirmed.
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SADIE MARTIN, Plaintiff
v.
SAMUEL AKURANG, Defendant.
No. COA08-148
Court of Appeals of North Carolina
Filed July 15, 2008
This case not for publication
Robert N. Weckworth, Jr. for plaintiff-appellee.
Burton & Sue, LLP, by Gary K. Sue and Stephanie W. Anderson, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from an order allowing the trial court's own motion for relief from judgment pursuant to North Carolina Rule of Civil Procedure 60(b). Because we conclude that defendant's appeal is from an interlocutory order not properly before us, it is dismissed.
On 27 August 2004, plaintiff-appellee, Sadie Martin, ("plaintiff") filed a complaint in the Superior Court of Guilford County against defendant-appellant, Samuel Akurang, ("defendant") alleging negligence in connection with a 29 August 2001 motor vehicle accident. While a summons was issued on the same date, it was never served on defendant. Thereafter, several alias and pluries summons were issued between the dates of 25 October 2004 and 23 February 2007, none of which were successfully served.
Defendant filed an answer to the complaint on 27 July 2006 asserting the defenses of statute of limitations and intervening and superceding negligence. In addition, defendant moved to dismiss the complaint based on plaintiff's failure to properly serve the defendant, or for failure to secure proper endorsement or alias and pluries summons. On 28 March 2007, the defendant filed a motion to dismiss on the grounds that one of the alias and pluries summons had been untimely issued. On 21 April 2007, defendant was finally served.
Following a 7 June 2007 hearing, the trial court entered an order granting the motion to dismiss, but almost immediately thereafter entered a second order, ex mero motu, relieving plaintiff of the order allowing the motion to dismiss pursuant to North Carolina Rule of Civil Procedure 60(b)(1) and (6). As the basis for its decision, the trial court found that the plaintiff had excusably relied upon an obscured date on one of the alias and pluries summons in determining when the next summons must be issued.
On 23 July 2007, defendant moved to amend the Rule 60 order to include certification of the Rule 60 order for immediate appeal pursuant to N.C.R. Civ. P. 54(b). The trial court allowed the motion to amend. Defendant's appeal of the Rule 60 order is now before us. As our Supreme Court has held, "[g]enerally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). We recognize that, in some circumstances, a party may appeal an interlocutory order where the trial court has certified the case for appeal under Rule 54(b) of the Rules of Civil Procedure or when the challenged order affects a substantial right which would be lost without immediate review. N.C. Gen. Stat. § 1A-1, Rule 54(b) (2007); see Embler v. Embler, 143 N.C. App. 162, 164-65, 545 S.E.2d 259, 261 (2001). In this case, the trial court did purport to certify the case pursuant to Rule 54(b). However, this certification was improperly granted given that Rule 54(b) applies only in cases where the trial court has entered judgment as to some, but not all, claims or parties . N.C. Gen. Stat. § 1A-1, Rule 54(b) (2007).
Further, we do not ascertain any substantial right affected by the trial court's order in this case. While the right to avoid two trials on the same issue has been cited as a substantial right sufficient to support an interlocutory appeal, Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), the claims in this case have yet to be tried. The "avoidance of a trial . . . is not a substantial right entitling an appellant to immediate review." Allen v. Stone, 161 N.C. App. 519, 522, 588 S.E.2d 495, 497 (2003).
Moreover, in Robinson v. Gardner, 167 N.C. App. 763, 606 S.E.2d 449, rev. denied, 359 N.C. 322, 611 S.E.2d 417 (2005), this Court specifically discussed the immediate appeal of a Rule 60(b) order:
Our courts have consistently held that appeals from orders allowing a Rule 60 motion "must be dismissed as interlocutory." Braun v. Grundman, 63 N.C. App. 387, 388, 304 S.E.2d 636, 637 (1983) (dismissing appeal of Rule 60(b) order setting aside judgment for surprise and excusable neglect). See also Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980) (order setting aside default judgment not immediately appealable); Metcalf v. Palmer, 46 N.C. App. 622, 625, 265 S.E. 2d 484, 485 (1980) (order setting aside involuntary dismissal not immediately appealable). Similarly, "[a] ruling denying a motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) is ordinarily a non appealable interlocutory order." Bolton Corp. v. T.A. Loving Co., 317 N.C. 623, 629, 347 S.E.2d 369, 373 (1986).
Id. at 767, 606 S.E.2d at 452 (alteration in original). Accordingly, we conclude that defendant has no right of an immediate appeal from the trial court's Rule 60(b) order and this appeal is dismissed.
Dismissed.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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13 So.3d 54 (2007)
EX PARTE DANIEL LOCKNER.
No. 1060892 (CR-06-0504).
Supreme Court of Alabama.
June 15, 2007.
Decision without published opinion. Certiorari denied.
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15-1031
United States v. Blackwell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of June, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 DENNY CHIN,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-1031
16
17 TAYSHAWN BLACKWELL, a/k/a JAYVON POPE,
18 Defendant-Appellant.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: Colleen P. Cassidy, Federal
22 Defenders of New York, Inc., New
23 York, NY.
24
25 FOR APPELLEE: Benet Kaerney (with Karl Metzner
26 on the brief), Assistant United
27 States Attorneys, for Preet
28 Bharara, United States Attorney
1
1 for the Southern District of New
2 York, New York, NY.
3
4 Appeal from a judgment of the United States District
5 Court for the Southern District of New York (Keenan, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Tayshawn Blackwell appeals from a sentence and judgment
12 of conviction of the United States District Court for the
13 Southern District of New York (Keenan, J.). We assume the
14 parties’ familiarity with the underlying facts, the
15 procedural history, and the issues presented for review.
16
17 1. Blackwell argues that curfew (as a condition of
18 probation) and incarceration are equivalent for sentencing
19 purposes. He argues that the 36-month period of probation
20 with curfew, in addition to his 36–month term of
21 imprisonment, brings his total sentence of incarceration to
22 72 months, which violated the parsimony clause that a
23 sentence be “sufficient, but not greater than necessary.”
24 See 18 U.S.C. § 3553(a).
25
26 The Government argues that Blackwell waived this
27 challenge to his curfew in his plea agreement. Appellate
28 waivers are applied “narrowly,” and we construe them
29 “strictly against the Government.” United States v.
30 Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006). The waiver
31 here does not unambiguously preclude defendant from
32 challenging the curfew condition imposed on his supervised
33 release, and so we will consider the argument on its merits.
34 See United States v. Tourloukis, 558 F. App’x 112, 114 (2d
35 Cir. 2014) (summary order).
36
37 Since Blackwell did not raise this objection below, we
38 review for plain error. See United States v. Gomez, 705
39 F.3d 68, 75 (2d Cir. 2013). For an error to be “plain,” it
40 “must be so obvious that ‘the trial judge and prosecutor
41 were derelict in countenancing it, even absent the
42 defendant’s timely assistance in detecting it.’” United
43 States v. Wagner–Dano, 679 F.3d 83, 94 (2d Cir. 2012)
44 (quoting United States v. Frady, 456 U.S. 152, 163 (1982)).
45 “A reviewing court typically will not find such error where
46 the operative legal question is unsettled.” United States
47 v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (finding that
2
1 the law was not “plain” where there was no precedent from
2 this Circuit or the Supreme Court).
3
4 Blackwell relies on United States v. Leaphart, 98 F.3d
5 41, 42–43 (2d Cir. 1996), however that case did not hold
6 that home detention and a curfew condition are equivalent.
7 The Sentencing Guidelines explicitly distinguish between the
8 two: U.S.S.G. § 5D1.3(e)(2) refers to “home detention” (and
9 specifies that it can only be imposed as a condition of
10 supervised release as a “substitute for imprisonment,” and
11 § 5D1.3(e)(5) refers to “curfew” with no such qualification,
12 defining it as “restricting the defendant to his place of
13 residence during evening and nighttime hours.” At some
14 point, it stands to reason that a curfew condition would be
15 the functional equivalent of home detention. However, the
16 length of curfew at issue here (the mostly sleeping hours
17 from 9 p.m. until 6 a.m.) does not compel an inference of
18 home confinement; so in this case we need not reach the
19 issue of when, and under what conditions, curfew is
20 equivalent to home detention. See also United States v.
21 Haynesworth, 568 F. App’x 57, 60-61 (2d Cir. 2014) (summary
22 order) (rejecting argument that curfew was equivalent to
23 home detention for sentencing purposes).
24
25 2. Blackwell argues that pursuant to Johnson v. United
26 States, 135 S. Ct. 2551 (2015), and Johnson v. United
27 States, 559 U.S. 133 (2010), neither of his state robbery
28 convictions are “crimes of violence” as that term is defined
29 in the Guidelines, and that his Guidelines range was
30 therefore erroneously calculated. Unlike Blackwell’s curfew
31 argument, this argument is foreclosed by his appellate
32 waiver.
33
34 “Waivers of the right to appeal a sentence are
35 presumptively enforceable.” United States v. Arevalo, 628
36 F.3d 93, 98 (2d Cir. 2010). A defendant “who has secured
37 the benefits of a plea agreement and knowingly and
38 voluntarily waived the right to appeal a certain sentence”
39 may not “then appeal the merits of a sentence conforming to
40 the agreement.” United States v. Salcido-Contreras, 990
41 F.2d 51, 53 (2d Cir. 1993). The plea agreement stipulated
42 that Blackwell “committed the instant offense subsequent to
43 sustaining one felony conviction for a crime of violence.”1
1
A second robbery conviction was discovered while
the Pre-Sentence Investigation Report was being prepared,
3
1 App’x at 10. That stipulation resulted in a Guidelines
2 range of 30 to 37 months under the terms of the plea
3 agreement. Id. at 11. At sentencing, the district court
4 decided to follow the plea agreement and sentenced Blackwell
5 to 36 months imprisonment. Because Blackwell’s sentence
6 conformed to his plea agreement, he received the benefit of
7 that agreement and he has waived any challenge to his
8 sentence on the basis of Johnson. See United States v.
9 Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (holding that the
10 “inability to foresee that subsequently decided cases would
11 create new appeal issues does not supply a basis for failing
12 to enforce an appeal waiver. On the contrary, the
13 possibility of a favorable change in the law after a plea is
14 simply one of the risks that accompanies pleas and plea
15 agreements.”).
16
17 For the foregoing reasons, and finding no merit in
18 Blackwell’s other arguments, we hereby AFFIRM the judgment
19 of the district court.
20
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
23
and this conviction was considered at sentencing in
calculating the applicable Guidelines range. However, the
district court (without specifying whether it was a variance
or a departure) decided to impose a sentence that fell
within the lesser Guidelines range contained in the plea
agreement, which relied upon only one prior conviction for
robbery. Because Blackwell was sentenced within the
Guidelines range contained in the plea agreement, he cannot
prevail on a Johnson claim for the second robbery
conviction, which was never counted against him in arriving
at his sentence.
4
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Citation Nr: 1542413
Decision Date: 09/30/15 Archive Date: 10/05/15
DOCKET NO. 12-33 114 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for a bilateral knee condition.
REPRESENTATION
Appellant represented by: North Carolina Division of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
R. Dodd, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1980 to June 1991.
The matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that denied reopening claims for service connection for a back condition and bilateral knee condition.
The Veteran testified at a Board videoconference hearing in December 2014 and a copy of that transcript is of record.
This claim was previously before the Board in January 2015. At that time it was remanded for additional development. That development having been completed, this claim is once again before the Board.
The Board notes that a claim for service connection for a back condition was also remanded in January 2015. However, in a June 2015 rating decision, the RO granted the Veteran service connection for this condition with an effective date of September 11, 2008. As such, this claim is considered resolved in full and no further discussion shall ensue in this decision.
This matter was processed using the Veteran's Benefits Management System (VBMS). A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issues on appeal.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Although the Board sincerely regrets the additional delay in this appeal, it is constrained by the fact that proper adjudication requires further development with respect to the appealed claim.
This claim was remanded for a new VA examination in January 2015. In particular, the Remand requested that the examiner must reconcile any diagnoses that conflict with the evidence of record, particularly "osteoarthritis" as diagnosed in December 2004 and patellofemoral syndrome of the bilateral knees as diagnosed in July 2012. The examiner should then opine as to whether it is at least as likely as not (a 50 percent probability or greater) that each of the Veteran's current bilateral knee disabilities are related to his active military service, to include in-service treatment in November 1988. In so opining, the examiner should specifically discuss the lay evidence of continued symptoms after service and the December 2004 private opinion.
As per the instructions of the January 2015 Remand, the Veteran was provided with an additional VA examination in May 2015. The examiner reviewed the Veteran's claims file, interviewed the Veteran and performed objective testing. He diagnosed with Veteran with a bilateral knee condition, manifested by pain. The examiner opined that the Veteran's bilateral knee condition was less likely than not caused by or incurred in military service. In support, the examiner provided that the Veteran's service treatment records did not support any showing of chronicity for a bilateral knee condition, as the Veteran was only treated for shin splints during service. He also stated that the onset of the Veteran's condition was over 10 years after he left service. The examiner stated that the 2003/2004 private examination was noted, but failed to discuss it any further and reiterated that the Veteran's condition's onset was over 10 years after service. The examiner failed to provide any discussion of the Veteran's lay statements regarding chronic knee pain since military service.
A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. at 271.
Here, the examiner failed to comply with the previous remand instructions when he provided his opinion. Most notably, the examiner was specifically asked to consider and discuss the Veteran's lay statements regarding continuity of pain since service. Rather, the examiner merely ignored these statements and provided that there was no evidence whatsoever of any complaints of such condition until 2004. A VA examination is inadequate where a VA examiner ignores the veteran's lay statements. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Additionally, the examiner failed to discuss the positive etiology opinion of the December 2004 private treatment record and why such opinion does or does not accurately reflect the Veteran's condition. As such, the Veteran's claims file should be returned to the May 2015 VA examiner so that he may provide an addendum opinion in which he discusses the Veteran's lay complaints of pain continuing since service and the results of the December 2004 private opinion and provide a rationale as to why or why not the Veteran's current condition is not a continuation of the knee pain condition for which he was treated in service in November 1988.
Furthermore, a VA examination is inadequate where it was provided in part on an incorrect factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (noting that a medical opinion based on an inaccurate factual premise has no probative value). Here, the VA examiner stated that there were no knee conditions noted in service, other than the treatment that the Veteran received for his shin splints. However, this neglects to show the fact that the Veteran was in fact treated for knee pain apart from his shin splints on November 1988. Additionally, the examiner, in stating that there is no indication of onset until more than 10 years after service ignores the fact that the Veteran has stated on multiple occasions that he has had continual bilateral knee pain since service. As such, the examiner, upon remand, should also take into account and discuss these factual inaccuracies in providing an addendum to his opinion. Further, he should explain why the Veteran's knee pain in service is distinct from the knee pain that has alleged to have continued since service to its present diagnosed manifestation.
Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.
2. Then, after any new evidence has been associated with the claims file, obtain an addendum opinion to the May 2015 VA examination report regarding the etiology of the Veteran's claimed bilateral knee condition. The claims file must be made available to the examiner for review and a notation to this effect should be made in the claims file. The complete medical history of the disability should be obtained. All necessary tests should be conducted.
The examiner should diagnose all current bilateral knee conditions.
The examiner must reconcile any diagnoses that conflict with the evidence of record, particularly "osteoarthritis" as diagnosed in December 2004 and patellofemoral syndrome of the bilateral knees as diagnosed in July 2012.
The examiner should then opine as to whether it is at least as likely as not (a 50 percent probability or greater) that each of the Veteran's current bilateral knee disabilities are related to his active military service, to include in-service treatment in November 1988?
In so opining, the examiner should specifically discuss the lay evidence of continued symptoms after service and the December 2004 private opinion.
The examiner is requested to provide a thorough rationale for any opinion provided.
3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall, 11 Vet. App. at 268.
4. After completing the above, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).
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SECOND DIVISION
MAY 1, 2001
1-99-3152
LATONIA CLARK, Special Adm'r of ) Appeal from the
the Estate of Ashanti Beasley, Deceased,) Circuit Court
) of Cook County
Plaintiff-Appellant, )
)
)
)
GALEN HOSPITAL ILLINOIS, INC., d/b/a ) No. 98 L 002085
Columbia Michael Reese Hospital and )
Medical Center; ZUBAIR AMIN #6200; )
WASEF, a/k/a Vassef; and NENETTE ALONZO )
) The Honorable
Defendants-Appellees. ) Michael J. Hogan,
) Judge Presiding.
(JOHN B. PAYTON, defendant; DR. #1341, )
a/k/a Baurlygen, respondent in )
discovery) )
JUSTICE COUSINS delivered the opinion of the court:
Plaintiff Latonia Clark, as administrator of the estate of Ashanti Beasley, brought a medical negligence action to recover damages for the wrongful death of her son, Ashanti Beasley. Plaintiff sued defendants Galen Hospital Illinois, Inc., d/b/a Columbia Michael Reese Hospital and Medical Center (Michael Reese Hospital); John B. Payton, M.D.; Dr. Zubair Amin #6200; Dr. Wasef, a/k/a Vassef (Wasef); Nenette Alonzo, R.N.; and Dr. #1341 Respondent in Discovery, a/k/a Dr. Baurlygen, for failure to properly diagnose and treat her son, who allegedly died as a result of sepsis brought on by a dislodged venus catheter on September 22, 1995.
Defendants Dr. Wasef, Michael Reese Hospital, Dr. Amin and nurse Alonzo filed motions to dismiss, alleging that the suit was barred by the two-year statute of limitations governing medical malpractice actions. 735 ILCS 5/13-212(a) (West 1998). The trial court granted the defendants' motions and dismissed the suit.
(footnote: 1)
On appeal, plaintiff argues that the trial court erred by finding that the death of plaintiff's infant on September 22, 1995, constituted a traumatic injury which triggered the statute of limitations. Rather, plaintiff contends that the statute of limitations commenced when she received an expert's report, on April 11, 1997, which revealed that death was due to a dislodged venus catheter.
BACKGROUND
On August 28, 1995, plaintiff gave birth to Ashanti Beasley, a 23-week-old premature boy, at Michael Reese Hospital. He was transferred to the University of Illinois Hospital at Chicago on September 9, 1995. The infant died on September 22, 1995. The medical certificate of death, filed on October 31, 1995, stated that Ashanti died from septic shock due to disseminated intravascular coagulation. At the time of death, plaintiff alleges that she was told "the baby died because of complications due to it [
sic
] being premature, having an infection and low birth weight, and because his blood was clotting and he couldn't tolerate all the transfusions."
Plaintiff alleges that on February 27, 1996, five months after Ashanti's death, she first sought legal counsel from Hertzel Levine, who agreed to determine if she had a cause of action. At this meeting, plaintiff consented to the release of the infant's medical records. However, plaintiff was never contacted by Mr. Levine again.
Plaintiff subsequently retained her present attorney, obtained the infant's medical records, and hired a medical expert, neonatologist Dr. Stuart Danoff. On April 11, 1997, plaintiff received a report from Dr. Danoff. His report stated:
"That following said review, I am of the opinion that there is a reasonable and meritorious cause for the filing of the action against each of the following defendants: Galen Hospital Illinois, Inc., *** Zubair Amin, M.D., Dr. Wassef and Nenette Alonzo, for all of the following reasons:
a. Failed to order x-rays after the insertion and placement of UVC's and UAC's;
b. Failed to properly manage plaintiff's decedent to insure x-rays were ordered and read;
c. Failed to take due cognizance of the condition of ill being of plaintiff's decedent and immediately order x-rays which would have clearly established a problem with the UVC;
d. Failed to provide proper and adequate neonatal/pediatric care to plaintiff's decedent as stated above;
e. Failed to consult with physicians skilled in other specialities of medicine and capable of properly and timely diagnosing and treating plaintiff's decedent;
f. Improperly cut the UVC line and/or improperly dislodged the UVC line.
As a direct and proximate result of one or more of the foregoing wrongful acts and/or omissions of the defendants, *** Ashanti Beasley died on September 22, 1995."
Approximately 10 months after receiving Danoff's report, plaintiff filed her original complaint for medical negligence on February 19, 1998. On June 25, 1998, Dr. Wasef moved to dismiss the complaint pursuant to section 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 1998)) as time-barred under section 13-212(a) (735 ILCS 5/13-212(a) (West 1998)) because plaintiff failed to file it within two years of the infant's death. In response, plaintiff asserted that she did not learn that negligence could have caused the infant's death until April 1997, when she received Dr. Danoff's report. The trial court dismissed plaintiff's complaint without prejudice.
On November 12, 1998, plaintiff filed her first amended complaint, which added that she first sought legal counsel on February 27, 1996. Dr. Wasef again moved to dismiss the action as time-barred. The trial court granted the second motion to dismiss without prejudice, with directions that the subsequent complaint should specify:
"when and how plaintiff was put on notice *** plaintiff's argument is right that she had no notice and couldn't have known what the negligence was at the time of the death of her child. There had to be something between then and when she went to the lawyer, and I want at least that to be spelled out in the complaint with regard to when."
In plaintiff's second amended complaint, she made the following allegations to support her view that she had no notice of the wrongful nature of the infant's death until April 1997:
"Plaintiff did not discover that decedent Ashanti Beasley's death was wrongfully caused by the negligence of the Defendants, or became possessed with sufficient information concerning the cause of his death until April of 1997 when neonatologist Stuart Danoff M.D. reviewed the only available records in this cause and determined that the death was wrongfully caused and did not die solely from complications due to being premature, having an infection, low birth weight, and because his blood was clotting and he couldn't tolerate all the transfusions, and conveyed that fact to her attorneys. The first time Plaintiff sought legal counsel in this cause was in late February, 1996, when after discussing her hospitalization and her baby's death with a friend the friend suggested she contact her attorney Hertzel Levine who was handling a few cases for her, thereafter, she met with Mr. Hertzel Levine on February 27, 1996 who indicated to her that he did not know if she had a case, but would have her sign a medical authorization so he could order the medical records, to determine if she had a case. That she was never contacted again by Mr. Levine, in any regard."
Dr. Wasef moved to dismiss the second amended complaint again on statute of limitations grounds. On July 1, 1999, the trial court granted Dr. Wasef's motion to dismiss with prejudice on the grounds that plaintiff's second amended complaint was time-barred. Defendants further allege that the trial court determined as a matter of law under
Nordsell v. Kent
, 157 Ill. App. 3d 274, 510 N.E.2d 606 (1987), that the infant's death was a sudden and traumatic event putting plaintiff on immediate notice to inquire whether the death was wrongfully caused.
Defendants Michael Reese Hospital, Dr. Amin and nurse Alonzo then moved to dismiss the second amended complaint on the same statute of limitations grounds asserted by Dr. Wasef. On July 27, 1999, the trial court granted defendants' motion with prejudice.
Plaintiff appeals. We reverse and remand.
ANALYSIS
Plaintiff contends that the trial court erred by dismissing her complaint as time-barred. Section 2-619(a)(5) allows dismissal of a case when "the action was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 1998). When considering a section 2-619 motion, all pleadings and supporting documents must be construed in a light most favorable to the nonmoving party, and the motion should be granted only when no material facts are disputed and defendant is entitled to dismissal as a matter of law.
Young v. McKiegue
, 303 Ill. App. 3d 380, 386, 708 N.E.2d 493 (1999). Review of a dismissal pursuant to section 2-619 is
de novo
.
Young
, 303 Ill. App. 3d at 386.
Medical malpractice actions are governed by a two-year statute of limitations under section 13-212(a) of the Code of Civil Procedure. 735 ILCS 5/13-212(a) (West 1999). Under section 13-212(a), any claim of malpractice against a physician or hospital must be filed within two years of "the date on which the claimant knew, or through the use of reasonable diligence should have known, *** of the existence of the injury or death for which damages are sought." 735 ILCS 5/13-212(a) (West 1999). The statute of limitations is tolled until plaintiff knows or reasonably should have known both that an injury occurred and that it was wrongfully caused.
Witherell v. Weimer
, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981).
Generally, the issue of when a party knew or should have known that an injury was wrongfully caused is one of fact.
Witherell
, 85 Ill. 2d at 156. The term "wrongfully caused" does not mean plaintiff must have knowledge of a specific defendant's negligent conduct or knowledge of the existence of a cause of action before the statute is triggered.
Saunders v. Klungboonkrong
, 150 Ill. App. 3d 56, 59, 501 N.E.2d 882 (1986);
Knox College v. Celotex Corp.
, 88 Ill. 2d 407, 416, 430 N.E.2d 976 (1981). Instead, the phrase refers to that point in time when "the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved."
Knox
, 88 Ill. 2d at 416.
Courts often examine the nature of the injury itself in determining when a plaintiff knew or reasonably should have known that an injury was caused by wrongful conduct.
Saunders
, 150 Ill. App. 3d at 60, citing
Kristina v. St. James Hospital
, 63 Ill. App. 3d 801, 813, 380 N.E.2d 816 (1978). If plaintiff's injury is caused by a "sudden traumatic" event, the statute of limitations begins to run on the date the injury occurs.
Pszenny v. General Electric Co.
, 132 Ill. App. 3d 964, 966, 478 N.E.2d 485 (1985). A traumatic injury has been defined as one where the damage is caused by external violence (
Roper v. Markle
, 59 Ill. App. 3d 706, 711, 375 N.E.2d 934 (1978)) or which is immediate and caused by an external force (
Pszenny
, 132 Ill. App. 3d at 966). See
Ikenn v. Northwestern Memorial Hospital
, 73 Ill. App. 3d 694, 392 N.E.2d 440 (1979) (blindness resulting from excessive amount oxygen given to premature infant);
Berry v. G.D. Searle & Co.
, 56 Ill. 2d 548, 309 N.E.2d 550 (1974) (stroke and paralysis due to ingestion of birth control pills);
Bates v. Little Co. of Mary Hospital
, 108 Ill. App. 3d 137, 438 N.E.2d 1250 (1982) (injuries suffered when plaintiff was pinned underneath a forklift truck);
Urchel v. Holy Cross Hospital
, 82 Ill. App. 3d 1050, 403 N.E.2d 545 (1980) (paralysis caused by car accident and subsequent medical treatment).
In contrast, the nature and circumstances of the injury may be such that its cause is unknown or apparently innocent at the time it occurs.
Kristina
, 63 Ill. App. 3d at 813. "If the injury is *** an aggravation of a physical problem which may naturally develop, absent negligent causes, a plaintiff is not expected to immediately know of either its existence or potential wrongful cause."
Saunders
, 150 Ill. App. 3d at 60. In this latter situation, it would be "'manifestly unrealistic and unfair to bar a negligently injured party's cause of action before he has had an opportunity to discover that it exists.'"
Kristina
, 63 Ill. App. 3d at 813, quoting
Lipsey v. Michael Reese Hospital
, 46 Ill. 2d 32, 41, 262 N.E.2d 450 (1970).
Defendant urges this court to adopt the rule that an infant's death or injury should be classified,
per se
, as
the result of a "sudden traumatic" event based on two Third District decisions:
Nordsell v. Kent
, 157 Ill. App. 3d 274, 510 N.E.2d 606 (1987), and
Lutes v. Farley
, 113 Ill. App. 3d 113 (1983). In
Lutes
, the plaintiff delivered a stillborn child in May 1978 after receiving morphine. Plaintiff alleged in her complaint that she did not discover the wrongful causation of that injury until July 1980 when her sister began a nursing course and learned that morphine should not be administered to pregnant women.
Lutes
, 113 Ill. App. 3d at 114.
The court held that the stillbirth was a "sudden, traumatic event which should prompt some investigation by the injured party and trigger the application of the discovery rule."
Lutes
, 113 Ill. App. 3d at 115. The court did not rely on any definition of the term "sudden, traumatic event," however, and simply cited
Berry v. G.D. Searle & Co.
, 56 Ill. 2d 548, 309 N.E.2d 550 (1974), for support. In
Berry
, plaintiff sought damages for injuries sustained after having taken a birth control pill called Enovid. The drug was prescribed and sold to her on and before May 29, 1965. On May 30, 1965, plaintiff suffered a stroke and paralysis after ingesting the drug. Plaintiff filed her action more than two years after her injury, alleging that she did not learn that the drug caused her injury until June 1, 1967.
Berry
, 56 Ill. 2d at 550.
The Illinois Supreme Court held that plaintiff's action in tort accrued on the date of the occurrence of the stroke. The court explained:
"[The complaint] asserts that on May 30, 1965, she suffered a cerebral vascular accident. Her reply brief candidly states that she 'knew she was ill, that she had suffered a stroke and was partially and permanently paralyzed.' However, she maintains that it was not until June 1, 1967, that she knew that Enovid was the cause of the condition. From plaintiff's description of the severity of her condition in the complaint and her reply brief it is inconceivable that her injury was not occasioned by a traumatic event and that she knew of this injury more than two years prior to the filing of her complaint."
Berry
, 56 Ill. 2d at 559.
In our view,
Berry
relied on the unusualness of plaintiff's condition and the obvious severity of her injury to classify the stroke as a "traumatic event." However,
Berry
provided no specific guidance relating to this term. See
Kristina
, 63 Ill. App. 3d at 813 ("nowhere in
Berry
does the court define the exact meaning of the term 'traumatic injury'"). We also note that in determining that a stillbirth constitutes a traumatic injury as a matter of law,
Lutes
relied solely upon
Berry
-- an adult
injury case.
Nordsell
took the holding in
Lutes
one step further. In
Nordsell
, plaintiff gave birth to twin girls on July 26, 1983. Cara was stillborn, while Sara died two weeks later on August 9, 1983. Plaintiff's complaint, filed on August 14, 1985, alleged that defendants failed to properly assess the gestational age of the unborn twins, thereby allowing plaintiff to proceed with premature labor resulting in emergency surgery. Plaintiff alleged that defendants told her the twins were simply too small and that postnatal death was not uncommon under the circumstances. Plaintiff also alleged that she had no knowledge of wrongdoing until after August 15, 1983, when legal consultation produced evidence that defendants failed to properly diagnose gestational age.
Nordsell
, 157 Ill. App. 3d at 275-76. Additionally, the death certificate stated the cause of Cara's death was "stillborn due to *** placental insufficiency" while Sara's certificate listed "renal failure" and "prematurity" as the cause of death.
Nordsell
, 157 Ill. App. 3d at 276.
The court in
Nordsell
relied on its previous decision in
Lutes
to conclude that Cara's stillbirth constituted a sudden, traumatic event which triggered the statute of limitations. With respect to Sara, the court stated:
"Even if Cara's stillbirth did not trigger the discovery rule as to Sara, nevertheless Sara's death two weeks later was the same sort of traumatic injury as would cause plaintiff to inquire into the existence of a cause of action as to Sara."
Nordsell
, 157 Ill. App. 3d at 277.
The plaintiff in
Nordsell
argued that
Lutes
should not apply to Sara because she lived two weeks and was not stillborn. The court indicated that this argument would have been more persuasive if plaintiff had alleged a different negligent act as to Sara. However, plaintiff alleged negligence in the improper determination of gestational age for both twins.
Nordsell
, 157 Ill. App. 3d at 277.
Defendant argues that this court is bound by
Nordsell
's decision relating to Sara. Some factual similarities do exist: plaintiffs in both cases were told that premature infants do not survive; the death certificates did not alert plaintiffs to wrongful causation of death; and Sara survived two weeks while Ashanti lived about 25 days. However, the plaintiff in
Nordsell
failed to plead a specific date on which she reasonably could have learned of the injury. Here, plaintiff specifically pleaded that she could not have learned of the cause of the injury until April 11, 1997, the date she received her expert's report.
More significantly, we are not persuaded by
Nordsell
's reasoning with respect to Sara. We note that the classification of an injury as traumatic or nontraumatic, alone, is of no significance.
Kristina
, 63 Ill. App. 3d at 813. The only benefit to be derived from such a classification would be in determining when the plaintiff discovered, or should have discovered, that the injury was caused by wrongful conduct.
Kristina
, 63 Ill. App. 3d at 813. Accord
Watkins v. Health & Hospitals Governing Comm'n
, 78 Ill. App. 3d 468, 471, 397 N.E.2d 228 (1979);
Saunders
, 150 Ill. App. 3d at 60;
Hale v. Murphy
, 157 Ill. App. 3d 531, 534, 510 N.E.2d 488 (1987);
Gara v. Semerad
, 183 Ill. App. 3d 622, 629, 539 N.E.2d 298 (1989). The more obvious the injury, the more easily a plaintiff should be able to determine its cause.
Watkins
, 78 Ill. App. 3d at 471.
Defendant also relies on
Ikenn v. Northwestern Memorial Hospital
, 73 Ill. App. 3d 694, 392 N.E.2d 440 (1979). In that case, plaintiff alleged that she was born prematurely and was given an uncontrolled flow of oxygen for four weeks while she was in an incubator following birth. Excessive quantities of oxygen caused her to become blind in both eyes. She also alleged that she discovered the possible cause of her blindness at age 22 when a magazine article was read to her.
Ikenn
, 73 Ill. App. 3d at 694-95. The court held that plaintiff's blindness was the type of physical problem which imparted constructive knowledge that it was a traumatic event occasioned by another's wrongful act. The court explained that blindness is an unusual condition and that plaintiff could have easily determined its cause by merely making inquiry, certainly before her twentieth
birthday. The court also noted that plaintiff made no allegations that she could not have reasonably known of the cause of her blindness earlier or that she reasonably believed her condition was of innocent causation.
Ikenn
, 73 Ill. App. 3d at 700.
The instant case is factually distinguishable from
Ikenn
. Plaintiff's blindness in
Ikenn
was deemed an uncommon condition that does not naturally occur following a premature birth. In contrast, here, the death of a 23-week-old premature infant who suffers from several other complications is not as unusual. Under such circumstances, it was reasonable for plaintiff to believe that Ashanti's death resulted from natural causes, especially when that belief was supported by assertions from medical personnel and the death certificate. Furthermore, unlike
Ikenn
, the plaintiff here does allege that she could not have reasonably known of cause of Ashanti's death at an earlier time -- namely, until April 11, 1997, when she first received the expert's report.
Two instructive cases upon which plaintiff relies are
Watkins v. Health & Hospitals Governing Comm'n
, 78 Ill. App. 3d 468, 471, 397 N.E.2d 228 (1979), and
Young v. McKiegue
, 303 Ill. App. 3d 380, 386, 708 N.E.2d 493 (1999)
.
Watkins
involved a diabetic plaintiff who brought an action seeking damages for amputation of her leg, alleging that it was necessitated by a blood clot due to a negligent injection of dye. The complaint was filed more than two years after the amputation, but less than two years after the plaintiff was informed of the hospital's negligence.
Watkins
, 78 Ill. App. 3d at 469.
The court rejected defendant's argument that plaintiff's leg amputation was a "traumatic event" which commenced the running of the limitations period. The court observed that "classification of an injury as traumatic or nontraumatic, alone, is of no significance. *** Courts have been holding that the more obvious the injury the more easily a plaintiff should be able to determine its cause."
Watkins
, 78 Ill. App. 3d at 471, citing
Berry
, 56 Ill. 2d at 559. Instead, the court found the discovery rule to be controlling: the limitations period does not begin to run until the injured party discovers, or should have reasonably discovered, not only the nature of the injury but also the possibility that it was wrongfully caused.
Watkins
, 78 Ill. App. 3d at 472. Since the plaintiff, a known diabetic, could have reasonably believed the amputation was caused by her diabetic condition, the court held that a triable issue of fact existed to determine whether she should have discovered the defendants' negligence more than two years before the action was filed.
Watkins
, 78 Ill. App. 3d at 472-73.
In
Young
, a decedent's widow brought a wrongful death action against treating physicians, including Dr. McKiegue. In August 1993, decedent was admitted for treatment of pneumonia. On September 3, 1993, when he was due to be discharged, decedent coughed blood and complained of shortness of breath and chest pain. Dr. McKiegue ordered an EKG and transferred decedent to intensive care. He died shortly after on September 4, 1993.
Young
, 303 Ill. App. 3d at 382-83.
Plaintiff was informed that her husband died of complications from his pneumonia. The death certificate likewise indicated that cause of death was due to pneumonia and did not identify any cardiac ailment. However, plaintiff suspected inappropriate medical care because decedent died only hours after being prepared to leave the hospital.
Young
, 303 Ill. App. 3d at 383. Plaintiff contacted an attorney and received decedent's medical records by December 1993. In August 1994, plaintiff received the first expert's report, which indicated that treating physicians deviated from the standard of care by failing to identify and properly treat decedent's heart attack on September 3, 1993. Plaintiff received a second expert's report in February 1995 which corroborated these findings.
Young
, 303 Ill. App. 3d at 384. Plaintiff filed suit in March 1995, within two years of decedent's death. However, she did not add Dr. McKiegue as a defendant until July 1996, when he was identified as decedent's attending physician.
Young
, 303 Ill. App. 3d at 385.
In determining when the statute of limitations commenced, the court found that the first expert's report in August 1994 was sufficient to place defendant on notice that decedent's death was likely caused by negligent care. Thus, the court determined that the limitations period commenced to run no later than August 1994.
Young
, 303 Ill. App. 3d at 389. Although Dr. McKiegue asserted that plaintiff's suspicions of malpractice were sufficient to charge her with actual and constructive knowledge that death was wrongfully caused, the court held that an issue of fact existed as to whether plaintiff possessed the requisite knowledge before August 1994. The cause was remanded for a factual finding on this issue.
Young
, 303 Ill. App. 3d at 389-90.
Like Dr. McKiegue, defendants here posit that the statute of limitations commenced at death because plaintiff initially contacted an attorney on February 27, 1996, and must have suspected negligence in order to do so. "However, when a party knows or reasonably should know that her injury was wrongfully caused does not mean when a party is suspicious that her injury was wrongfully caused."
Young
, 303 Ill. App. 3d at 389-90. Rather, the trier of fact must examine the basis for plaintiff’s suspicions and determine whether they would lead a reasonable person to believe that wrongful conduct was involved.
Young
, 303 Ill. App. 3d at 390. Whether plaintiff should have discovered prior to receiving the expert’s report on April 11, 1997, that Ashanti’s death may have resulted from negligent medical care is a question to be determined by the trier of fact, based on the particular facts and circumstances of this case.
Watkins
, 78 Ill. App. 3d at 473.
Moreover, it was reasonable for the plaintiff to believe that the nature of Ashanti’s death was due to nonnegligent causes at the time of death. Plaintiff gave birth to a 23-week-old premature infant. Plaintiff’s complaint alleged that she was told her baby died from complications due to prematurity, having an infection and low birth weight, and problems associated with blood clotting and transfusions. In light of the fact of Ashanti’s extreme prematurity, it was possible for plaintiff to reasonably believe that her baby’s death resulted from complications related to his premature birth. This possibility was enough to prevent her from knowing or suspecting the negligence of the defendants in dislodging or cutting the venus catheter line at the time of Ashanti's death.
Since a disputed question of fact remains as to when the statute of limitations began to run against the defendants, the court’s dismissal of plaintiff’s claim is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
CAHILL, P.J. and GORDON, J., concur.
FOOTNOTES
1: Defendant Payton was dismissed from the suit and Dr. Baurlygen was not named as a defendant. Neither physician is a party to this appeal.
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Filed 6/26/15 Johnson v. Fresno County Employees’ Retirement Assn. CA5
NOT TO BE PUBLISHED IN THE 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
FIFTH APPELLATE DISTRICT
GARY JOHNSON,
F069503
Plaintiff and Appellant,
(Super. Ct. No. 12CECG00759)
v.
FRESNO COUNTY EMPLOYEES’ OPINION
RETIREMENT ASSOCIATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Fresno County. Debra J.
Kazanjian, Judge.
Moscone Emblidge Sater & Otis; Moscone Embridge & Otis, G. Scott Emblidge
and Matthew K. Yan for Plaintiff and Appellant.
Reed Smith, Harvey L. Leiderman, Jeffrey R. Rieger and Dennis Peter Maio for
Defendant and Respondent.
-ooOoo-
During the last few years of his employment with the County of Fresno (County),
appellant Gary Johnson, was on assignment in Sacramento County. The County paid
appellant a flat monthly allowance on top of his regular salary to cover appellant’s out-of-
town living expenses.
When appellant retired, respondent, the Fresno County Employees’ Retirement
Association (FCERA), calculated appellant’s pension without including this flat monthly
allowance as part of appellant’s final compensation. Appellant filed a claim with the
FCERA seeking to have the flat monthly allowance included in his pension calculation.
The FCERA denied appellant’s claim and declared the flat monthly allowance was not
pensionable.
Appellant then filed a petition for writ of mandate in the trial court. The trial court
denied appellant’s petition on the ground that appellant’s claim was barred by a class
action settlement agreement. The court did not rule on whether the flat monthly
allowance is “compensation earnable” and therefore included in the final compensation
calculation. (Gov. Code,1 §§ 31461, 31462.)
Appellant challenges the trial court’s ruling on two grounds. Appellant argues that
the release in the class action settlement agreement does not cover his claim because the
flat monthly allowance reimbursement method did not exist when the agreement was
signed. Rather, at that time, the County reimbursed employees for expenses incurred
while on assignment on a dollar-for-dollar basis. Appellant further contends that the flat
monthly allowance is pensionable compensation under the California Supreme Court case
of Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483
(Ventura).
Contrary to appellant’s position, his claim is barred by the class action settlement
agreement. Accordingly, the judgment will be affirmed.
1 All further statutory references are to the Government Code.
2.
BACKGROUND
1. The CalWIN program and expense reimbursement policies.
The California Work Opportunity and Responsibility to Kids Information
Network, referred to as “CalWIN,” is an online computer system and database used to
administer public welfare and assistance programs throughout California. Employees
from various California counties designed the CalWIN software and were required to live
near the project site in Folsom.
Beginning in February 2000, Fresno County employees on assignment to the
CalWIN project were reimbursed for actual, authorized expenditures. This policy was
“‘adopted to allow additional reimbursement to the employee as an incentive for
volunteering to relocate.’” In May 2000, the County adopted the CalWIN policy under
which “CalWIN workers could obtain cash advances and reimbursement on a monthly
basis for meals and incidentals” and “did not need to provide proof of expenses unless it
was requested.”
In December 2001, the County modified its CalWIN reimbursement policy. The
County “‘did away with the dollar-for-dollar reimbursement scheme and, instead, put into
place a flat monthly allowance … for staff members assigned to the project on a long-
term basis.’” This allowance covered “‘expenses including lodging/utilities, meals, and
transportation/mileage’, plus a ‘gross-up’ to account for taxes on these sums.’”
The County defined the flat monthly allowance as standardized amounts paid each
month as an estimate of the employees’ liability for the actual costs plus taxation of those
costs in order to provide total reimbursement to the employee. The County’s reason for
this policy switch was to minimize tracking and reporting requirements. Nevertheless,
each employee was required to certify under penalty of perjury the distance between the
employee’s county headquarters and the project site, the amount of monthly rent or
mortgage at the project site, and that the employee will continue to maintain his or her
primary residence at a net expense in excess of $200 per month. The employee was
3.
further required to semi-annually submit CalWIN expense claims providing rental
receipts, a lease agreement, or other suitable documentation attesting to payment for
lodging in the Sacramento area.
2. The Ventura II litigation and settlement.
Under the County Employees Retirement Law of 1937 (CERL), Government
Code section 31450 et seq., retirement benefits are calculated based on a retired
employee’s “final compensation” as defined by sections 31460, 31461 and 31462 or
31462.1. (Salus v. San Diego County Employees Retirement Assn. (2004) 117
Cal.App.4th 734, 736.) This final compensation involves: compensation in the form of
cash, rather than in the form of in-kind goods and services or time off; cash earned during
a usual work period, as opposed to cash earned for overtime; and cash earned before
retirement, rather than at or after retirement. (Ibid.)
In Ventura, supra, 16 Cal.4th 483, the California Supreme Court defined certain
aspects of final compensation under CERL. There, a group of law enforcement officers
argued their final compensation should include salary enhancements they received in
cash from their county employer under the terms of a memorandum of understanding.
These enhancements included a uniform maintenance allowance, bilingual premium pay,
educational incentive pay, additional compensation for scheduled meal periods for
designated employees, pay in lieu of annual leave accrual, and a motorcycle bonus. (Id.
at p. 488.)
The Ventura court extensively analyzed certain sections of CERL in order to
ascertain what must be included in an employee’s “final compensation” for purposes of
calculating his or her pension. The court explained that, while only cash payments
received by an employee qualify as compensation within the meaning of Government
Code section 31640, when cash is paid in lieu of other in-kind benefits, those payments
qualify as compensation. The court noted that the “Legislature has recognized that some
employees receive remuneration other than wages or salary but has concluded that if
4.
those ‘advantages’ are not paid in cash, their value need not be included in
‘compensation’ for purposes of computing a pension. It has not done so for cash
payments made in lieu of providing the same advantages in kind. When paid in cash, the
payment is remuneration and, as it is not excluded, it is ‘compensation’ under section
31460.” (Ventura, supra, 16 Cal.4th at p. 497.) Accordingly, the court held that, in
addition to an employee’s base salary, other forms of cash remuneration, excluding
overtime, had to be included in calculating the employee’s final compensation for
purposes of a CERL retirement pension. Thus, the Ventura plaintiffs’ final compensation
included the premiums at issue, i.e., the uniform maintenance allowance, educational pay,
bilingual pay, payments in lieu of accrued vacation time, etc. (Ventura, supra, at pp.
487-505.) The Ventura court disapproved a long-standing Court of Appeal decision upon
which many counties had relied in making pension calculations. (Id. at pp. 505-507.)
Following Ventura, a number of class action lawsuits were filed in various
counties alleging noncompliance with Ventura in the computation of retirement benefits.
These cases were collectively referred to as the Ventura II litigation. (Chisom v. Board of
Retirement of Fresno County Employees’ Retirement Assn. (2013) 218 Cal.App.4th 400,
405 (Chisom).) The parties to the Fresno County Ventura II litigation, including
appellant, reached a final settlement pursuant to a settlement agreement effective
December 15, 2000.
Under this settlement agreement, the class received an increased service retirement
benefit comprised of both a statutory benefit and a supplemental benefit for members
retiring on and after January 1, 2001. The agreement purported to be a compromise that
was meant to fully resolve and settle all of the Fresno County Ventura II lawsuits and all
issues between the parties therein. (Chisom, supra, 218 Cal.App.4th at pp. 406-407.)
The settlement was intended “to be complete and final with respect to the issues that it
has resolved and that the settlement will not be changed on behalf of settling parties or
the class members in response to later court developments, whether favorable or
5.
unfavorable.” The parties specifically agreed “that petitioners and class members will
forbear bringing any future demand, claim or lawsuit seeking to enlarge, define, narrow,
or in any other way relate to the scope of the decision of the California Supreme Court in
[Ventura], or the items of compensation to be included for benefit purposes under the
1937 County Employees Retirement law. All parties agree that this forbearance
agreement applies to all items of compensation which were included or which could have
been included” (italics added) in the Ventura II actions.
3. Appellant’s retirement increase request.
Appellant participated in the CalWIN program and received a flat monthly
allowance of $3,930 from March 2003 through December 2007. Appellant retired from
County employment in August 2008. In calculating appellant’s retirement benefits, the
FCERA did not include the flat monthly allowance amount of approximately $47,000 per
year.
In 2011, appellant filed a claim with the FCERA requesting that the flat monthly
allowance be included as part of his final compensation in his retirement benefit
calculation. The FCERA referred appellant’s claim to a referee.
Following a hearing, the referee found in favor of appellant and recommended that
the FCERA adjust appellant’s pension to include the CalWIN flat monthly allowance.
The referee concluded that the flat monthly allowance constituted compensation under
section 31460 and, being analogous to a uniform allowance, was pensionable under
Ventura. The referee also rejected the County’s claim that the 2000 settlement barred
appellant’s claim because the reimbursement policy at issue was instituted after the
settlement was reached.
After hearing argument, the FCERA rejected appellant’s claim and the referee’s
proposed decision. The FCERA disagreed with the referee’s interpretation of the CERL
and the settlement agreement.
6.
4. The trial court proceeding.
Appellant petitioned the trial court for a writ of mandate. The trial court denied
the petition finding the settlement agreement barred appellant’s claim. The court
determined the settlement agreement expressed the mutual intent of the parties to waive
the right to present future unknown items for determination of whether they constitute
compensation for purposes of calculation of retirement benefits.
DISCUSSION
Appellant argues that his pension claim is not barred by the release in the 2000
class action settlement agreement because the CalWIN reimbursement policy was not
adopted until 2001. Therefore, appellant contends, the calculation of his pension benefit
was not a claim that could have been included in the class action.
The interpretation of a settlement agreement is governed by the principles
applicable to any other contract. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.)
Where, as here, the interpretation of the agreement is based solely on its own language,
the construction is a question of law. (Id. at p. 1166.)
The release and forbearance provisions in the settlement agreement are
unambiguous. (Chisom, supra, 218 Cal.App.4th at p. 416.) The settlement agreement
provides “that it disposes of all claims and issues among the parties, including those
relating to or arising out of the Ventura case, and that the parties would forbear from
bringing any future suit under the Ventura case.” (Ibid.) This forbearance provision is
applicable “‘to all items of compensation which were included or which could have been
included in [the Ventura II litigation].’” (Ibid.)
Appellant contends his claim could not have been included in the Ventura II
litigation because the flat monthly allowance reimbursement method did not exist at that
time. As support for his position, appellant notes that the pre-2001 policy was a non-
taxed dollar-for-dollar reimbursement that required CalWIN participants to keep receipts
of their actual incurred expenses while the 2001 flat monthly allowance was neither
7.
tailored to actual expenses nor required receipts and was taxed. Appellant characterizes
the 2001 flat monthly allowance as “a sea change” that was paid to CalWIN participants
to compensate them for the added burden of working on a project several hours from
home.
However, when the County first adopted the reimbursement policy for CalWIN
participants in February 2000, one purpose was to allow additional reimbursement to the
employees as an incentive for volunteering to relocate. Then in May 2000 the County
modified the CalWIN policy to permit the CalWIN workers to obtain cash advances and
reimbursement on a monthly basis for meals and incidentals. Moreover, the workers did
not need to provide proof of expenses unless it was requested. Thus, before the Ventura
II litigation settlement, the CalWIN participants received their reimbursement in advance
of incurring the expenses and were not required to provide proof of their actual expenses.
When the County modified the reimbursement policy in 2001 to put the flat
monthly allowance in place, the scheme was not materially changed from the May 2000
policy. As before, the participants were: paid in advance based on expense estimates;
required to provide proof of payment for lodging; and required to certify the distance they
traveled. Both before and after the Ventura II settlement, the County wanted to provide
total reimbursement to the CalWIN workers and motivate them to relocate. The 2001
policy differed from the May 2000 policy in that the County, rather than the employee,
estimated the monthly expenses in advance and no receipts were ever required for meals
and incidentals. The reason behind this policy change was to simplify the paperwork.
Also, the County grossed up the amount to cover the taxes on the flat monthly allowance
to provide total reimbursement of expenses.
Thus, based on the policy in place in May 2000, a claim that the CalWIN
reimbursement amounts were pensionable could have been asserted in connection with
the Ventura II litigation. The administrative differences between the 2000 policy and the
2001 policy are not so significant that the potential claim did not exist when the litigation
8.
was settled. Thus, as a member of the class in the Ventura II cases, appellant waived and
released his claim and is barred from pursuing it. (Cf. Chisom, supra, 218 Cal.App.4th at
p. 416.)
In light of this conclusion, we need not decide whether the FCERA erred when it
refused to include the flat monthly allowance in calculating appellant’s pension benefit.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
_____________________
LEVY, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
GOMES, J.
9.
| {
"pile_set_name": "FreeLaw"
} |
498 F.3d 99 (2007)
Michael WOJCHOWSKI, Sr., by his attorney-in-fact, Lucy Wojchowski, and Lucy Wojchowski, Plaintiffs-Appellants,
v.
Richard F. DAINES, Commissioner, New York State Department of Health, and Kelly A. Reed, Commissioner, Monroe County Department of Human and Health Services,[*] Defendants-Appellees.
Docket No. 06-3373-cv.
United States Court of Appeals, Second Circuit.
Argued: June 28, 2007.
Decided: August 2, 2007.
*100 René H. Reixach, Woods Oviatt Gilman LLP, Rochester, NY, for Plaintiffs-Appellants.
Victor Paladino, Assistant Solicitor General (Eliot Spitzer, Attorney General, Daniel Smirlock, Deputy Solicitor General, on the brief), Office of the Attorney General of the State of New York, Albany, NY, for Defendants-Appellees.
Before: CABRANES and RAGGI, Circuit Judges, and BERMAN,[**] District Judge.
*101 JOSÉ A. CABRANES, Circuit Judge.
This appeal concerns the scope of the "antiattachment provision" of the Social Security Act (the "Act"), 42 U.S.C. § 407(a). See Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 379, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003) (describing § 407(a) as the Act's "antiattachment provision"). Section 407(a) states in relevant part that "none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process."[1] In Robbins v. DeBuono, 218 F.3d 197 (2d Cir.2000), our Court held that it was a violation of § 407(a) for New York State, when making certain Medicaid eligibility determinations, to attribute the Social Security benefits of an "institutionalized spouse" to his or her "community spouse," because this attribution effectively coerces the couple into using the benefits on behalf of the community spouse.[2]Id. at 198-99. In our Court's view, such attribution subjected the institutionalized spouse's Social Security benefits to "other legal process" within the meaning of § 407(a). See id. at 200-01. After our decision in Robbins, New York stopped attributing the Social Security benefits of institutionalized spouses to community spouses. However, New York reverted to its prior practice after the Supreme Court issued an opinion in Keffeler, which discussed at length the meaning of the term "other legal process" in § 407(a).
Plaintiffs-appellants Michael and Lucy Wojchowski contend that Keffeler does not undermine our conclusion in Robbins that the attribution of an institutionalized spouse's Social Security benefits to a community spouse violates the Act's antiattachment provision. Defendants-appellees the Commissioner of the New York State Department of Health and the Commissioner of the Monroe County Department of Health and Human Services argue that the analysis and outcome in Robbins are inconsistent with Keffeler's interpretation of the antiattachment provision. We conclude that Robbins's holding cannot survive Keffeler[3] and that New York's attribution of an institutionalized spouse's Social Security benefits to a community spouse does not violate § 407(a).
BACKGROUND
A. Medicaid Budgeting and New York's "Income-First Policy"
Medicaid, which is jointly funded by the federal and state governments, "is a medical assistance program authorized `to pay for necessary medical care for those eligible individuals whose income and resources do not allow them to meet the *102 costs of their medical needs.'" Robbins, 218 F.3d at 199 (quoting Golf v. N.Y. State Dep't of Soc. Servs., 91 N.Y.2d 656, 659, 674 N.Y.S.2d 600, 697 N.E.2d 555 (1998)). The New York State Department of Health ("DOH"), in conjunction with local social services agencies, administers Medicaid in New York.[4]Id.
Medicaid covers, inter alia, "nursing home care for medically needy older people who become eligible by incurring medical expenses that reduce their monthly income and assets below prescribed levels." In re Estate of Tomeck, 8 N.Y.3d 724, 728, 840 N.Y.S.2d 550, 872 N.E.2d 236 (2007). As part of the Medicaid Catastrophic Coverage Act of 1988 ("MCCA"), Congress established "a complex set of standards governing the allocation of resources between the spouse residing in a nursing home (the institutionalized spouse) and the spouse residing in the community (the community spouse)." Id. at 728, 840 N.Y.S.2d 550, 872 N.E.2d 236; see Wis. Dep't of Health & Family Servs. v. Blumer, 534 U.S. 473, 477-78, 122 S.Ct. 962, 151 L.Ed.2d 935 (2002); Robbins, 218 F.3d at 199. The purpose of these "spousal impoverishment provisions" was "to protect community spouses from `pauperization' while preventing financially secure couples from obtaining Medicaid assistance." Blumer, 534 U.S. at 480, 122 S.Ct. 962 (quoting H.R.Rep. No. 100-105, pt. 2, at 65 (1987), as reprinted in 1988 U.S.C.C.A.N. 857, 888); see also Robbins, 218 F.3d at 199; Tomeck, 8 N.Y.3d at 728, 840 N.Y.S.2d 550, 872 N.E.2d 236.
To that end, Congress directed the states to "establish a minimum monthly maintenance needs allowance for each community spouse." 42 U.S.C. § 1396r-5(d)(3); see Blumer, 534 U.S. at 481, 122 S.Ct. 962; Robbins, 218 F.3d at 199; see also N.Y. Soc. Serv. Law § 366-c(2)(h) (establishing New York's allowance formula). This "minimum monthly maintenance needs allowance" ("MMMNA") is "an amount deemed sufficient for the community spouse to live at a modest level after the institutionalized spouse becomes eligible for Medicaid, subject to a statutory floor and ceiling." Tomeck, 8 N.Y.3d at 728, 840 N.Y.S.2d 550, 872 N.E.2d 236. Congress also mandated that "[f]or purposes of establishing the institutionalized spouse's Medicaid eligibility, a portion of the couple's assets is reserved for the benefit of the community spouse." Blumer, 534 U.S. at 482, 122 S.Ct. 962 (footnote omitted) (citing 42 U.S.C. § 1396r-5(c)(2)). This reserved share is known as the "community spouse resource allowance" ("CSRA"). 42 U.S.C. § 1396r-5(f)(2); see also N.Y. Soc. Serv. Law § 366-c(2)(d) (defining New York's CSRA formula). "All of the institutionalized spouse's countable resources and the community spouse's countable resources exceeding the CSRA may be used to pay for nursing home care, and must be spent down in order for the institutionalized spouse to qualify for Medicaid." Tomeck, 8 N.Y.3d at 729, 840 N.Y.S.2d 550, 872 N.E.2d 236.
"The MCCA provides for a `fair hearing' mechanism through which a couple may challenge the State's determination of a number of elements that affect eligibility for, or the extent of assistance provided under, Medicaid."[5]Blumer, 534 *103 U.S. at 483, 122 S.Ct. 962 (citing 42 U.S.C. § 1396r-5(e)); see also N.Y. Soc. Serv. Law § 366-c(8) (setting forth New York's "fair hearing" procedure). As relevant to the instant case, 42 U.S.C. § 1396r-5(e)(2)(C) specifically provides that
[i]f either [the institutionalized or community] spouse establishes that the [CSRA] (in relation to the amount of income generated by such allowance) is inadequate to raise the community spouse's income to the [MMMNA], there shall be substituted for the [CSRA] under subsection (f)(2) of this section, an amount adequate to provide [the MMMNA].
Thus, in New York, either spouse "can request a `fair hearing' at which a[DOH] hearing officer may set a [CSRA] above the statutory amount to enable the assets to generate enough income to raise the community spouse's income to the level of the [MMMNA]." Robbins, 218 F.3d at 198; see N.Y. Soc. Serv. Law § 366-c(8)(C).
"Medicaid benefits may not be withheld from the institutionalized spouse in the event the community spouse declines to make spousal resources available to pay for medical expenses." Tomeck, 8 N.Y.3d at 729, 840 N.Y.S.2d 550, 872 N.E.2d 236 (citing 42 U.S.C. § 1396r-5(c)(3) and N.Y. Soc. Serv. Law §§ 366(3)(a), 366-c(5)(b)). Under New York law, the State may recover from the community spouse the cost of Medicaid assistance provided to the institutionalized spouse, if the community spouse has "sufficient income and resources to provide medical assistance" but such "income and resources . . . are not available . . . because of . . . the refusal or failure of [the community spouse] to provide the necessary care and assistance." N.Y. Soc. Serv. Law § 366(3)(a) (discussing the creation of "an implied contract" between "a responsible relative" and the State in such circumstances). In the support recovery action contemplated by these statutes, the State may "recover the cost of Medicaid benefits paid for the care of the institutionalized spouse to the extent that the community spouse has available resources" above the CSRA. Comm'r of Dep't of Soc. Servs. of the City of N.Y. v. Spellman, 243 A.D.2d 45, 672 N.Y.S.2d 298, 300 (App. Div., 1st Dept.1998); see also Tomeck, 8 N.Y.3d at 729, 840 N.Y.S.2d 550, 872 N.E.2d 236 (noting that "the community spouse's countable resources exceeding the CSRA may be used to pay for nursing home care" (emphasis added)). Thus, the higher the CSRA, the less the State can subsequently recover from a community spouse in a support recovery action.
New York "applies an `income first' policy in determining whether a community spouse is entitled to an increase in her [CSRA]." Robbins, 218 F.3d at 199. See generally Blumer, 534 U.S. at 484, 122 S.Ct. 962 (explaining the difference between "income-first" and "resource-first" policies). "This approach . . . deems or attributes income from the institutionalized spouse to the community spouse. Thus, the CSRA goes up only if the community spouse's monthly income, including any sums that the institutionalized spouse is allowed to provide, still falls short of the MMMNA." Tomeck, 8 N.Y.3d at 730, 840 N.Y.S.2d 550, 872 N.E.2d 236; see Robbins, 218 F.3d at 199. "Whether or not the institutionalized spouse contributes his *104 excess income to his spouse, [the State] may sue [the community spouse] to recover the `excess' assets that [the community spouse] would otherwise use to generate income." Robbins, 218 F.3d at 199.
The question presented in the instant case is whether § 407(a) prohibits New York from attributing an institutionalized spouse's Social Security benefits to a community spouse when calculating the community spouse's CSRA.[6] In Robbins, we held that application of New York's income-first policy to Social Security benefits was a violation of § 407(a); subsequent guidance from the Supreme Court requires us to revisit that holding. See Boothe v. Hammock, 605 F.2d 661, 663 (2d Cir.1979) (stating that our Court was "obliged to reassess" its earlier holdings in light of an intervening Supreme Court decision).
B. Factual and Procedural Background of the Instant Case
The following facts are taken from the Wojchowskis' complaint and the documents referred to therein. We accept these facts as true and draw all reasonable inferences in the Wojchowskis' favor. See, e.g., McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007) ("In reviewing a motion to dismiss under Fed. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, we accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.").
The Wojchowskis are a married couple living in Monroe County, New York. At the time this action was commenced in October 2005, Mr. Wojchowski (the institutionalized spouse for Medicaid purposes) was 85 years old and resided in a nursing home. Mrs. Wojchowski (the community spouse for Medicaid purposes) was 81 years and resided in the couple's marital home. Mrs. Wojchowski became her husband's attorney-in-fact pursuant to a durable general power of attorney dated November 29, 2004.
In December 2004, an application for Medicaid was filed on Mr. Wojchowski's behalf with the Division of Social Services ("DSS") of the Monroe County Department of Human and Health Services. Mrs. Wojchowski filed a "spousal refusal statement" with the Medicaid application, indicating that she would not make her assets available for her husband's medical care. The DSS issued a "Notice of Decision" on February 22, 2005. The DSS determined that Mr. Wojchowski was eligible for Medicaid assistance in light of the spousal refusal statement, but that Mrs. Wojchowski had approximately $480,000 of resources in excess of her statutorily-prescribed CSRA, which in 2004 was $92,760.
The Wojchowskis requested a "fair hearing" to increase Mrs. Wojchowski's CSRA. They argued that Mrs. Wojchowski should *105 be permitted to retain all of her assets in order to generate enough investment income to make up the shortfall between her personal monthly income and the applicable MMMNA. Administrative Law Judge ("ALJ") John G. Herriman issued a "Decision After Fair Hearing" on October 13, 2005. ALJ Herriman determined that Mrs. Wojchowski was entitled to an MMMNA of $2319 and that her countable income, after deductions for health insurance premiums, was only $308.59 per month. Applying New York's income-first policy over Mr. Wojchowski's objection, ALJ Herriman then attributed Mr. Wojchowski's Social Security benefits (among other forms of income) to his wife. Plaintiffs allege that with this attribution, Mrs. Wojchowski's income was $952 less than the MMMNA; without this attribution, her income would have been approximately $1900 less than the MMMNA. These calculations led ALJ Herriman to conclude that while Mrs. Wojchowski was entitled to an increase in her CSRA that would generate $952 of income per month, she was not entitled to retain all of her assets. ALJ Herriman remanded the matter to the local social services district to calculate the precise increase. According to the Wojchowskis,
whatever ultimately might be determined to be the amount of the CSRA increase, it will be about half what it would be if Mr. Wojchowski's Social Security benefits had not been taken into account. In turn, the amount of Mrs. Wojchowski's resources subject to the support claim the DSS could make against her will be inflated by the difference in the CSRA increase resulting from automatically re-allocating her husband's Social Security.
Appellants' Br. 9. In other words, if the State brings a support recovery action against Mrs. Wojchowski, fewer of her assets will be sheltered as her CSRA than would be the case if Mr. Wojchowski's Social Security benefits had not been attributed to her.
The Wojchowskis then commenced this action against defendants, seeking injunctive and declaratory relief. They claimed, inter alia, that the attribution of Mr. Wojchowski's Social Security benefits to Mrs. Wojchowski violated § 407(a), because it subjected the benefits to "other legal process." Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing in relevant part that application of New York's income-first policy to Social Security benefits during a "fair hearing" does not subject those benefits to "other legal process" within the meaning of § 407(a) and thus is not prohibited.
The District Court granted the motion to dismiss. It first observed that our Court in Robbins had "held that automatic allocation of an institutionalized spouse's Social Security benefits to the other spouse for purposes of determining the non-institutionalized spouse's income violated Section 407(a)." Wojchowski v. Novello, No. 05-CV-6576T, 2006 WL 1888589, at *3 (W.D.N.Y. July 7, 2006). But the District Court then stated that "the rationale upon which Robbins was based was undermined by the more recent Supreme Court [d]ecision" in Keffeler. Id. In light of the "very narrow meaning" given to § 407(a) by Keffeler, the District Court concluded that
[b]ecause the process of allocating Mr. Wojchowski's Social Security benefits to Mrs. Wojchowski for purposes of determining her income does not actually effect a taking of his benefits, nor wrest control over his benefits, the defendants' practice of considering Mr. Wojchowski's benefits in determining Mrs. Wojchowski's income does not constitute the use of "other legal process" as that *106 term is used in the anti-alienation provision of the Social Security Act [i.e., § 407(a) ], and therefor[e], does not violate that provision.
Id. A final judgment was entered on July 10, 2006. The Wojchowskis timely appealed, arguing that Robbins's holding with respect to the Act's antiattachment provision remains good law in spite of Keffeler.
DISCUSSION
We review de novo the District Court's grant of defendants' motion to dismiss for failure to state a claim upon which relief can be granted. See, e.g., Peay v. Ajello, 470 F.3d 65, 67 (2d Cir.2006). Dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate where, even if all of the allegations contained in a complaint are true, a claim fails as a matter of law. See, e.g., Dow Jones & Co., Inc. v. Int'l Sec. Exch., Inc., 451 F.3d 295, 308 (2d Cir.2006).
"While `as a general rule, one panel of this Court cannot overrule a prior decision of another panel[,] . . . an exception to this general rule arises where there has been an intervening Supreme Court decision that casts doubt on our controlling precedent.'" Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 141 (2d Cir. 2006) (alteration and ellipsis in original) (quoting Union of Needletrades, Indus. & Textile Employees v. INS, 336 F.3d 200, 210 (2d Cir.2003)). Moreover, "the intervening decision need not address the precise issue already decided by our Court." Union of Needletrades, Indus. & Textile Employees, 336 F.3d at 210. We agree with the District Court that our holding in Robbins was based on an interpretation of the Social Security Act's antiattachment provision that is inconsistent with the Supreme Court's reading of § 407(a) in Keffeler. We therefore conclude that (1) Robbins's holding concerning the scope of § 407(a) is no longer good law and (2) under Keffeler, New York's income-first policy as applied to Social Security benefits does not violate § 407(a).
A. Robbins
In Robbins, our Court began its analysis by noting that application of New York's income-first policy "clearly did not execute on, levy, attach, or garnish [the institutionalized spouse's] Social Security benefits." 218 F.3d at 200. The dispositive question, therefore, was whether the benefits were "subject to . . . other legal process" within the meaning of § 407(a). See id. at 201. The Court set forth the following principles to guide its consideration of this question:
We have employed an "expansive definition of `legal process,'" Kriegbaum v. Katz, 909 F.2d 70, 74 (2d Cir.1990), which "embrace[s] not only the use of formal legal machinery but also resort to express or implied threats and sanctions,'" Fetterusso v. State of New York, 898 F.2d 322, 327 (2d Cir.1990).
Id.
Our Court then concluded that New York's application of its income-first policy to Social Security benefits violated § 407(a) because (1) it constituted a form of "administrative coercion" that limited a Social Security recipient's discretionary authority over how to spend the benefits and (2) there existed the prospect of a "fair hearing" and the threat of a support recovery action to give this coercion effect. See Robbins, 218 F.3d at 200-02. We found that the policy was coercive because it effectively compelled the community spouse (acting as attorney-in-fact for the institutionalized spouse) to spend the institutionalized spouse's Social Security benefits on herself, rather than on the institutionalized spouse's needs:
[The community spouse], who has [the institutionalized spouse's] power of attorney, *107 has control over his check. If she pays over [his] Social Security benefits for his current care rather than applying them to her own needs, her future will be jeopardized because the DSS will sue to obtain the assets she will need for her support in the future. . . . [T]he effect of the State [policy] in question is to force the [attorney-in-fact] to exercise that discretion in favor of herself.
See id. at 202 (fifth and sixth alterations in the original) (internal quotation marks omitted).[7] We further found that, even though the plaintiffs in Robbins had not requested a "fair hearing," the prospect of a "fair hearing" and the threat of a support recovery action sufficed to establish "legal process" under § 407(a):
[T]he use of express or implied threats falls within the meaning of "legal process" for purposes of Section 407. Because New York's income-first policy, which is implemented both during the fair hearing process and through the express threat of a lawsuit, constitutes an explicit threat to use "legal process" against a community spouse who refuses to expend her husband's social security benefits on her own needs, and because threatsimplicit or explicitfall within our definition of "legal process," we hold that the income-first policy as applied to Social Security benefits violates Section 407.
Id. (citing Fetterusso, 898 F.2d at 327).
B. Keffeler
In Keffeler, decided almost three years after Robbins, the Supreme Court considered whether it was a violation of § 407(a) for Washington State to use the Social Security benefits of children for whom it was representative payee to reimburse itself for some of its initial expenditures in providing foster care. See Keffeler, 537 U.S. at 375, 123 S.Ct. 1017. The Court first stated that the specific processes mentioned in § 407(a)execution, levy, attachment, and garnishmentare "legal terms of art refer[ring] to formal procedures by which one person gains a degree of control over property otherwise subject to the control over another, and generally involve some form of judicial authorization." Id. at 383, 123 S.Ct. 1017. Although the State, "in the abstract," gained control of the children's benefits using legal process (in being appointed the children's representative payee and making claims against accounts kept by the State Treasurer), "[t]he statute . . . uses the term `other legal process' far more restrictively." Id. at 383-84, 123 S.Ct. 1017.
*108 Applying the interpretive canons of noscitur a sociis and ejusdem generis,[8] the Court held that "other legal process" must be "construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Id. at 384, 123 S.Ct. 1017 (internal quotation marks omitted). Thus, explained the Court,
"other legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.
Id. at 385, 123 S.Ct. 1017.
The Court then discussed why, "[o]n this restrictive understanding of [the statutory term] `other legal process,'" the State's use of the children's Social Security benefits did not violate § 407(a). Id. at 386, 123 S.Ct. 1017. First, "whereas the object of the processes specifically named [i.e., execution, attachment, levy, and garnishment] is to discharge, or secure discharge of, some enforceable obligation, the State has no enforceable claim against its foster children." Id. Second, "although execution, levy, attachment, and garnishment typically involve the exercise of some sort of judicial or quasi-judicial authority to gain control over another's property, the [State's] reimbursement scheme operates on funds already in the [State's] possession and control, held on terms that allow the reimbursement." Id. The Court concluded that two earlier decisions involving § 407(a), Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), and Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988) (per curiam), did not require a contrary result because both cases "involved judicial actions in which a State sought to attach a beneficiary's Social Security benefits as reimbursement for the costs of the beneficiary's care and maintenance""forms of legal process expressly prohibited by § 407(a)." Id. at 388, 123 S.Ct. 1017.
C. Robbins Is Inconsistent with Keffeler
In Binder & Binder PC v. Barnhart, 399 F.3d 128 (2d Cir.2005), we observed that Keffeler "subtly disturbed the law of this Circuit." Id. at 134 (contrasting the "restrictive" reading of § 407(a) in Keffeler with the "expansive" reading of the statute in Robbins). We had no further occasion to comment on the nature of this disturbance because we found that remand was necessary to allow the District Court to resolve a jurisdictional issue in the first instance. See id. at 133. However, we stated that, upon remand, the District Court was free to revisit its earlier conclusion that an attorney charging lien is "legal process" under the Act's antiattachment provision "in light of Keffeler." Id. at 130, 134. We are now required to address the question (raised but not answered in Binder & Binder) of the extent *109 to which Keffeler disturbs controlling law in our Circuit. In doing so, we conclude that, although Keffeler's effect on our Court's precedent may be "subtl[e]," it is nevertheless fundamental and requires us to hold that Robbins is no longer good law.
The core of Keffeler's holding is that state practices or policies violate § 407(a) only if they are "similar in nature" to execution, levy, attachment, and garnishment. Keffeler, 537 U.S. at 384, 123 S.Ct. 1017. Three essential characteristics define an impermissible "legal process": (1) the process is "judicial or quasi-judicial"; (2) the process transfers "control of property . . . from one person to another"; and (3) the process is applied "in order to discharge or secure discharge of an allegedly existing or anticipated liability." Id. at 385, 123 S.Ct. 1017. Robbins, however, proceeded under the assumption that "other legal process" must be interpreted broadly. See Robbins, 218 F.3d at 201 (noting that "[w]e have employed an expansive definition of legal process" (internal quotation marks omitted)). It did not analyze whether New York's income-first policy as applied to Social Security benefits resembles the other legal processes specifically enumerated in the statute. Instead, our Court in Robbins determined that the antiattachment provision prohibits not merely the transfer of control over property, but also indirect limitations imposed on an individual's discretionary power to use his or her property. See Robbins, 218 F.3d at 201-02. Thus, our reading of § 407(a) in Robbins is inconsistent with Keffeler, and we must revisit the question of whether New York's reinstated income-first policy violates the antiattachment provision under the interpretation set forth by the Supreme Court.
In attempting to limit Keffeler's effect on Robbins, see Appellants' Br. 12-16, the Wojchowskis rely heavily on reasoning in a now-overturned decision by the New York Appellate Division. See In re Estate of Tomeck, 29 A.D.3d 156, 811 N.Y.S.2d 790, 793-94 (N.Y.App. Div., 3d Dep't 2006), rev'd, 8 N.Y.3d 724, 840 N.Y.S.2d 550, 872 N.E.2d 236 (2007). The Appellate Division reasoned that Keffeler was irrelevant to Robbins because "in Keffeler the benefits were applied to cover the cost of care of the actual Social Security beneficiary." Id. at 794. In other words, the Appellate Division seems to have regarded Keffeler as doing nothing more than permitting a representative payee to use Social Security benefits in the beneficiary's best interests. Yet this analysis simply ignores the Supreme Court's emphasis on interpreting "other legal process" in light of the surrounding language in the statute. Whether some state action falls within the statute's use of the term "other legal process" depends on the action's similarity to execution, attachment, levy, and garnishment, not on who ultimately benefits from the action. We therefore disagree with the Appellate Division's reasoning in Tomeck. As it happens, New York's highest court the New York Court of Appealsalso disagreed with the Appellate Division, modifying (though in effect reversing) the Wojchowskis' strongest authority in support of their position. See Tomeck, 8 N.Y.3d at 739-40, 840 N.Y.S.2d 550, 872 N.E.2d 236.
D. Under Keffeler, New York's Income-First Policy Does Not Subject An Institutionalized Spouse's Social Security Benefits to Legal Process Within the Meaning of § 407(a)
We conclude, in agreement with the recent decision of the New York Court of Appeals in Tomeck, that New York's income-first policy does not violate § 407(a). See Tomeck, 8 N.Y.3d at 738-40, *110 840 N.Y.S.2d 550, 872 N.E.2d 236.[9]
Although the attribution of an institutionalized spouse's Social Security benefits to a community spouse during a "fair hearing" may qualify as a "judicial or quasi-judicial mechanism," Keffeler, 537 U.S. at 385, 123 S.Ct. 1017, such attribution neither transfers "control of [the benefits] . . . from one person to another" nor mandates that the benefits be used "to discharge or secure discharge of an allegedly existing or anticipated liability," id. Unlike an individual whose property is subject to execution, attachment, levy, or garnishment, the institutionalized spouse (or his attorney-in-fact) ultimately retains the choice to use his Social Security benefits to help support the community spouse or to spend them otherwise. The "administrative coercion" described in Robbins may cabin the discretion of an institutionalized spouse to spend his Social Security benefits as freely as he wishes, see 218 F.3d at 201-202, but it does not shift control over the benefits to someone else, see Tomeck, 8 N.Y.3d at 738-40, 840 N.Y.S.2d 550, 872 N.E.2d 236. And unlike execution, attachment, levy, or garnishment, New York's income-first policy is not a mechanism designed to ensure that a judgment will be satisfied by the institutionalized spouse's Social Security benefits. The attribution occurs whenever a community spouse seeks an increase in her CSRA, regardless of whether she has filed a spousal refusal statement and might be liable in a support recovery action brought by the State. "It is essentially a budgeting methodology," see Tomeck, 8 N.Y.3d at 739, 840 N.Y.S.2d 550, 872 N.E.2d 236, not a guarantee that the State will get paid.[10]
In short, the attribution of an institutionalized spouse's Social Security benefits to a community spouse during a "fair hearing" is not "similar in nature" to the other legal processes listed in the antiattachment provision of the Act. Thus, under Keffeler, New York's income-first policy does not violate § 407(a).
CONCLUSION
For the reasons set forth above, we conclude that Robbins is no longer good law, and we hold that New York's income-first policy as applied to Social Security benefits during a "fair hearing" does not violate § 407(a). The judgment of the District Court is therefore AFFIRMED.
NOTES
[*] Pursuant to Fed. R. of App. P. 43(c)(2), Richard F. Daines and Kelly A. Reed are automatically substituted for the prior occupants of their positions, former New York State Department of Health Commissioner Antonia Novello, M.D., and former Monroe County Department of Health and Human Services Commissioner Patricia Stevens.
[**] The Honorable Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation.
[1] 42 U.S.C. § 407(a) provides in full:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
[2] An "institutionalized spouse" is, with certain exceptions not relevant here, an individual "in a medical institution or nursing facility" who is "married to a spouse who is not in a medical institution or nursing facility." 42 U.S.C. § 1396r-5(h)(1). A "community spouse" is "the spouse of an institutionalized spouse." Id. § 1396r-5(h)(2).
[3] In Robbins, we also held that the attribution of an institutionalized spouse's Social Security benefits to a community spouse does not violate the "anti-alienation provision" of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1056(d)(1). See Robbins, 218 F.3d at 203-04. Our opinion in the instant case does not affect the ERISA holding in Robbins.
[4] For ease of reference, we refer to actions taken by the DOH or local agencies as being performed on behalf of "the State."
[5] "Fair hearing" is a term of art used to describe a "judicial or administrative hearing conducted in accordance with due process." Black's Law Dictionary 738 (8th ed.1999). Of course, the parties to a "fair hearing," as in the instant case, may not regard the proceeding as at all "fair" in the ordinary sense of the word. And simply because a statute or regulation sets forth a series of procedures that it deems a "fair hearing" does not guarantee that due process is met. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 259-60, 264, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (holding that, "when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process," notwithstanding the existence of a post-termination "fair hearing").
[6] Both the Supreme Court and the New York Court of Appeals have held that application of an income-first policy is consistent with the spousal impoverishment provisions of the MCCA. See Blumer, 534 U.S. at 495, 122 S.Ct. 962; Golf, 91 N.Y.2d at 658, 674 N.Y.S.2d 600, 697 N.E.2d 555. Congress has since mandated that all states use an income-first policy. See Deficit Reduction Act of 2005 ("DRA"), Pub.L. No. 109-171, § 6013, 120 Stat. 4, 64 (2006) (codified at 42 U.S.C. § 1396r-5(d)(6)). We must nevertheless consider whether a state applying an income-first policy violates the antiattachment provision of the Act by attributing Social Security benefits to a community spouse, because the DRA does not expressly indicate whether § 407(a) permits this attribution. See 42 U.S.C. § 407(b) ("No other provision of law . . . may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.").
[7] In reaching the conclusion that such a limitation on the community spouse's discretion was impermissible under § 407(a), our Court relied on what it referred to as "[t]he seminal case in this circuit on deeming or attributing Social Security benefits"Johnson v. Harder, 383 F.Supp. 174 (D.Conn.1974), aff'd, 512 F.2d 1188 (2d Cir.1975). See Robbins, 218 F.3d at 201-02. Johnson involved Connecticut's policy of attributing to a parent a portion of a child's Social Security benefits, received by the parent as representative payee for the child, for purposes of calculating the family's welfare benefits. The District Court concluded that the coercive effect of the policy violated the "Social Security statute and regulations," which "required a representative payee to use her child's benefits only for the benefit of the child." Robbins, 218 F.3d at 201 (citing Johnson, 383 F.Supp. at 179-82). We issued an oral order and brief per curiam opinion affirming the District Court's judgment. See Johnson, 512 F.2d at 1188-89. Although "Johnson explicitly dealt with Social Security regulations not at issue here," Robbins, 218 F.3d at 201, our oral order (incorporated into the per curiam opinion in a footnote) did refer to Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), a Supreme Court case that involved § 407(a). See Robbins, 218 F.3d at 202 (citing Johnson, 512 F.2d at 1189 n. 2).
[8] "The traditional canon of construction, noscitur a sociis, dictates that words grouped in a list should be given related meaning." Dole v. United Steelworkers of Am., 494 U.S. 26, 36, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (internal quotation marks omitted). Ejusdem generis is "the statutory canon that [w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (alteration in original) (internal quotation marks omitted).
[9] Although we find much of the reasoning in Tomeck to be persuasive, we are, of course, not bound by a state court's interpretation of federal law. See United States v. Montana, 134 F.2d 194, 196 (9th Cir.1943); see also Gart v. Cole, 263 F.2d 244, 248 (2d Cir.1959) (Clark, C.J.) (explaining that state court decisions involving federal law do not have staredecisis effect, even though they might support res judicata).
[10] We need not decide whether a state's effort to attach an institutionalized spouse's Social Security benefits in order to collect on a judgment against a community spouse would be permitted under § 407(a), although such an attempt would appear to be foreclosed by the plain language of § 407(a). See Keffeler, 537 U.S. at 388, 123 S.Ct. 1017 (noting that "judicial actions in which a state sought to attach a beneficiary's Social Security benefits as reimbursement for the costs of the beneficiary's care and maintenance" are "forms of legal process expressly prohibited by § 407(a)").
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289 So.2d 743 (1974)
Joseph W. LaCROIX et al., Appellants,
v.
Lou HIGGINS, Individually and As Trustee, and Real Properties, Inc., Appellees.
No. 72-1184.
District Court of Appeal of Florida, Fourth District.
February 15, 1974.
Maurice M. Garcia, Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellants.
William C. Sprott, Hamilton, James, Merkle & Young, West Palm Beach, for appellees.
PER CURIAM.
The appellants and appellees entered into an agreement for the purchase and sale of land in Palm Beach County. Although the appellants contend otherwise, it was a binding agreement on both sides and mutually enforceable. The transaction was not closed and the appellants unsuccessfully sought to regain the earnest money paid.
There was an issue of fact as to which party breached the contract and whether the other was ready, willing and able to perform. The trial judge found that the purchasers were the ones who breached the contract. There is competent substantial evidence to support the detailed findings of the trial judge on all points raised and his application of the law was proper.
When this is true, the judgment should be affirmed. (See 2 Fla.Jur., Appeals, Sec. 347, and cases cited therein.)
Affirmed.
OWEN, C.J., CROSS, J., and McDONALD, PARKER LEE, Associate Judge, concur.
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IN THE COURT OF APPEALS OF IOWA
No. 13-2047
Filed November 26, 2014
IN RE THE MARRIAGE OF KATHLEEN KAY KOETHER
AND GREGORY SCOTT KOETHER
Upon the Petition of
KATHLEEN KAY KOETHER,
Petitioner-Appellant,
And Concerning
GREGORY SCOTT KOETHER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Bradley J. Harris,
Judge.
Kathleen Koether appeals from the district court’s order dissolving her
marriage to Gregory Koether and its division of the parties’ assets. AFFIRMED
AS MODIFIED.
Charles R. Kelly Jr. of Charles Kelly Law Office, P.C., Postville, and Terry
D. Parsons of Olsen & Parsons, Cedar Falls, for appellant.
Sarah E. Stork Meyer of Clemens, Walters, Conlon & Meyer, L.L.P.,
Dubuque, for appellee.
Heard by Danilson, C.J., and Potterfield and Tabor, JJ.
2
POTTERFIELD, J.
Kathleen Koether (Kathy) appeals from the district court’s order dissolving
her marriage to Gregory Koether (Greg) and its division of the parties’ assets.
I. Factual and Procedural Background
Kathy and Greg were married on June 26, 1976. In the course of their
thirty-seven year marriage they worked as farmers and eventually started a
limited liability company (LLC) under which they could run their farming business.
Kathy also began to work in education and became a principal at an elementary
school. She earns a set salary and has benefits and retirement packages
through her employer. Greg primarily ran the LLC, but the business was built
through a team effort between the two parties. Kathy’s salary allowed Greg to
weather the inconsistent periods of profitability and unprofitability to which the
LLC was prone. The LLC acquired numerous assets, especially real estate,
through various purchases, inheritances, and other transactions.
Kathy is still a school principal, and Greg continues to run the farming
business. They have two sons and a daughter, all three of whom are adults.
On March 3, 2010, Kathy petitioned the district court to dissolve the
marriage. On her request, the district court issued an order pendente lite,
forbidding both parties from dissipating or diminishing the marital assets held in
the LLC. The order allowed for assets to be used in the ordinary course of
business but required any such usage to be disclosed to both parties. Any new
assets and income acquired by the LLC were required to be placed in a specific
bank account.
3
Trial was continued many times and did not occur until October 2013. In
the three and half years between the petition and the trial, the parties hotly
contested each other’s compliance with the order pendente lite. Kathy formally
filed applications for orders to show cause or initiate contempt four times. Greg
filed one such application against Kathy. During that time, the parties also
litigated an application to modify the order pendente lite.
The district court issued its dissolution decree on October 22, 2013. Kathy
filed a motion asking the district court to enlarge and expand its order. The court
issued a ruling modifying its order on November 21, 2013. Kathy filed her notice
of appeal on December 23, 2013.
Additional facts will be discussed along with the issues upon which they
bear.
II. Scope and Standard of Review
Dissolution actions are equity cases, and we review them de novo. Iowa
R. App. P. 6.907. “We give weight to the findings of the district court, particularly
concerning the credibility of witnesses; however, those findings are not binding
upon us.” In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). “We
will disturb the district court ruling when there has been a failure to do equity.” In
re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013) (citations omitted).
III. Discussion
A. Inherited Properties
1. Timber Land. On her death, Greg’s mother left timber farming property
to Greg and his sister to share equally. The district court awarded Greg his
4
interest in the timber property rather than divide it between the parties as a
marital asset.
“Property inherited by either party . . . during the course of the marriage is
the property of that party and is not subject to a property division . . . except upon
a finding that refusal to divide the property is inequitable to the other party . . . .”
Iowa Code § 598.21(6) (2013). There are five factors we consider to determine
whether exempting inherited property from division is inequitable:
(1) contributions of the parties toward the property, its care, preservation, or
improvement; (2) independent close relationships between the testator and the
inheritor’s spouse; (3) separate contributions by the parties to their economic
welfare to whatever extent those contributions preserve the property for either of
them; (4) any special needs of either party; and (5) any other matter that would
render exemption plainly unfair to the spouse. McDermott, 827 N.W.2d at 679.
The length of the marriage may also be an important factor to consider. In re
Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000).
Kathy argues exemption of the timber property from division is inequitable
because she contributed to the improvement of the property by planting trees,
she maintained an independent close relationship with Greg’s mother, and a
marriage of thirty-seven years is of substantial length. She argues the property
was treated by both parties as an asset of the LLC even though the LLC holds no
legal interest to the property.1 As a de facto property of the LLC, she argues,
equity is only achieved by dividing the property along with the marital estate.
1
One of her factual bases for claiming the property is de facto LLC property is the
inclusion of the property in the trial appraisal, which listed the LLC as the owner and
5
Greg counters that there is no evidence Kathy improved the specific
property in question. He concedes Kathy maintained a close relationship with his
mother but asserts each other factor weighs against distribution of the timber
property as a marital asset.
The district court distinguished the timber property from that which “has
been comingled with other real estate owned by the parties.” After reviewing the
record, we agree with the district court that the timber property was kept separate
from the parties’ other real estate interests. We disagree with Kathy’s claim that
“every indication is that [the property] was in fact treated as part of [the LLC]
operation without any differentiation from the other holdings of the parties.”
The property was inherited by Greg and his sister, and title was never
transferred to or held by the LLC in contrast to other properties inherited by the
parties. Kathy’s purported improvements on the land are not reflected in the
record with any specificity. We find no special need for Kathy to attain an interest
in the property, and there are no individual contributions from Kathy preserving
the property for herself. Though the length of the marriage and relationship with
Greg’s mother weigh in Kathy’s favor, they do not overcome the weight of the
remaining factors against her. We affirm the district court’s assessment of the
timber land as Greg’s individual interest.2
operator of the timber property. We agree with Greg that this erroneous classification in
the appraisal bears no legal significance as to the actual ownership of the parcel, but we
may take it into account to evaluate whether an inequity has occurred.
2
In affirming, we also reject Kathy’s request to remand for determination of any separate
assets obtained by purchase. There is no indication the district court failed to account
for the award of the timber lands to Greg as a factor in its determinations. Kathy cites to
Locke v. Locke, 246 N.W.2d 246, 252–53 (Iowa 1976), for her proposal. However, in
Locke, the district court could not have considered that factor because there was no
evidence in the record of the value of the land. Id. This case is distinguishable with its
6
2. Frabill Farm. Kathy inherited farm land from her mother in 2000. In
2007, she entered into a like-kind exchange for a portion of her inherited property
that netted her $98,840.80. This sum was used to partially fund the purchase of
farm land known between the parties as the Frabill Farm. The purchase price of
the Frabill Farm totaled $452,000. The remainder of the purchase price was
acquired through a loan. The title of the Frabill Farm is in Kathy’s name alone.
Greg claims it was the parties’ intention to transfer title to the LLC in time. The
Frabill Farm is one of the LLC’s primary operating locations although it was never
an asset of the LLC.
The district court awarded Kathy the entirety of the remainder of the
inherited farm land, but found the Frabill Farm to be a divisible marital asset.
Kathy asserts that outcome is inequitable and inconsistent with the district court’s
disposition on other inherited properties.
Kathy argues the use of inherited assets to purchase the Frabill Farm
means the district court should have at least off-set the amount of capital the sale
of her inheritance provided for the purchase. We agree. The district court’s
order for the sale of the Frabill Farm is modified to award to Kathy the first
$98,840.80 of the net proceeds, followed by the equal division of the balance of
the net proceeds, according to the procedure outlined in the court’s decree.
3. All Clayton County Properties. Kathy asserts on appeal her initial
recommendation to the district court—that all properties in Clayton County,
including inherited ones, be considered marital assets and divided equally—
ample documentation and appraisals, and the court’s actions in Locke are therefore not
controlling in the case before us.
7
would be more equitable than removing inherited properties from the marital
estate. We recognize that this method of property division may have been
simpler, but that does not render the district court’s method inequitable. Kathy’s
personal sentiments about the past dreams and goals of the parties expressed in
her brief also do not bear upon the equitable nature of the district court’s order.
We find the district court’s methodology was fair to both parties and in keeping
with Iowa Code section 598.21(6). We decline to adopt Kathy’s recommendation
regarding the Clayton County properties and affirm the district court.
B. Spousal Support
The district court ordered Kathy to pay spousal support to Greg in the
amount of $1500 per month until one of three things occur:
1. The legal title issue to the real estate contained in the LLC is
resolved and the LLC is dissolved; 2. The parties reach an
agreement amending the operator’s agreement of the LLC to allow
the payment of a salary by the LLC to [Greg] for his services; or,
3. [Greg] reaches the age of 65 years, dies or remarries.
Kathy claims on appeal this order is inequitable and discourages Greg from
working with her to resolve the real estate issues or establish his salary. Greg
argues $1500 is not sufficient for living expenses and the order will incentivize
him to establish an acceptable wage or dissolve the LLC to obtain his portion of
its assets.
Provision of spousal support is proper “especially where the disparity in
earning capacity has been great.” In re Marriage of Geil, 509 N.W.2d 738, 742
(Iowa 1993). The record shows Greg’s earning potential as a farmer and rancher
is much lower and less stable than Kathy’s, whose job provides a yearly salary
and benefits. Greg is currently 62 years old, and the spousal support order will
8
expire in less than three years regardless of any progress made towards
dissolving the LLC or establishing a salary for Greg. Given these considerations,
we do not find the district court’s order for spousal support inequitable, and we
affirm.
C. Dissipation of Assets
“A court may generally consider a spouse's dissipation or waste of marital
assets prior to dissolution when making a property distribution.” Kimbro, 826
N.W.2d at 700. “In determining whether dissipation has occurred, courts must
decide (1) whether the alleged purpose of the expenditure is supported by the
evidence, and if so, (2) whether that purpose amounts to dissipation under the
circumstances.” In re Marriage of Fennelly & Breckenfelder, 737 N.W.2d 97, 104
(Iowa 2007) (citations omitted).
The first prong of the test asks “the spending spouse [to] show how the
funds were spent or the property disposed of by testifying or producing receipts
or similar evidence.” Id. The second prong of the test requires a balancing of
several factors, including the proximity of the expenditures to the parties’
separation; whether the expenditures were typical of those made during the
marriage; whether the expenditure benefited both spouses or only one of them;
the necessity of the expenditure; the amount of the expenditure; and any
intention to hide, deplete, or divert marital assets. Id. at 104–05.
Kathy claims Greg dissipated $75,000 of marital assets during the
pendency of the dissolution action. She asks this court to account for that
dissipation because the district court denied her request to do so. She asserts
the expenditures were for Greg’s personal use and in violation of the district
9
court’s order pendente lite. Greg claims the expenditures did not violate the
order because they were made in the ordinary course of the LLC’s business or
for his living expenses.
As to the first prong, Greg’s testimony along with that of his paramour,
Candy Lamb, constitutes credible evidence that the expenditures were in fact
used for the purposes Greg claims. We move to the second prong to determine
if business expenditures and personal living expenses constitute dissipation of
marital assets on these facts. We agree with the district court3 that the use of
these funds does not constitute dissipation of assets.
Nothing in the record indicates Greg’s living expenses unnecessarily
exceeded his basic needs or expenses during the parties’ separation.4 The
district court’s order pendente lite specifically permitted the parties to make
expenditures that were “in the ordinary course of their business.”5 The business
expenditures benefited both parties by furthering the business goals of the LLC in
which both parties retain equal interest. There is no evidence in the record to
3
We agree with Kathy that the district court may not pay Greg a salary out of the LLC’s
assets. However, the district court order does not assign Greg a salary. (We discuss
Kathy’s separate assertion that the court erroneously reached the division of LLC assets
in section III(D), infra.) Despite the district court’s phrasing—that “the funds were earned
by respondent by his services to the L.L.C.”—its ultimate finding that Greg dissipated no
assets was proper and equitable. It reflects the fact that Greg’s living expenses, which
would normally be derived from the parties’ income, do not constitute a dissipation of
marital assets. See Kimbro, 826 N.W.2d at 702 (“[E]xpenditures were for legitimate
living expenses and did not constitute dissipation.”).
4
Despite Kathy’s insinuation, Greg’s provision of money to Candy was not merely for
Candy’s personal enjoyment, but for her to use to assist Greg in managing his living
expenses by paying bills or buying groceries.
5
We recognize there were additional requirements imposed upon expenditures in the
ordinary course of business Greg did not always comply with, including use of a specific
bank account and informing Kathy of all expenditures. However, we believe the district
court ably enforced its own order pendente lite during the many proceedings between
the petition for dissolution and trial. Greg was subjected to the appropriate sanctions.
10
corroborate Kathy’s claim that it was Greg’s intent simply to divest the marital
estate of the value of the expenditures. We affirm the district court’s finding that
neither party dissipated assets. Kathy is not entitled to the cash property
settlement she requests.
D. LLC Assets
Kathy claims the district court failed to properly distinguish between the
LLC’s assets and the parties’ personal assets, which include membership shares
in the LLC but not the LLC’s assets themselves. She notes the LLC entity is an
indispensable party to any action dividing its assets. See Iowa R. Civ. P.
1.234(2). Because the LLC was not a party to the dissolution action, she argues
the district court could not divide its assets. She claims the district court
nevertheless did so in two ways: first, it awarded Greg a salary from the LLC’s
assets; and second, it awarded Greg vehicles that were titled to the LLC. We
have found the court’s language in its decree was not an award of a salary to
Greg.
Kathy relies on the following portion of the court’s decree regarding her
claim Greg dissipated assets:
The court notes that [Greg] has removed funds from the LLC
account and used them for his own personal benefit. The court
further determines that said funds were earned by respondent by
his services to the LLC. Any funds taken by [Greg] from the LLC
are more than offset by those marital funds acquired by [Kathy]
from her educational salary and disposed of by her without
providing for the living expenses of [Greg] as was the usual practice
of the parties.
Kathy believes the district court implied it could assign LLC assets to Greg
as a salary when it ruled Greg had not dissipated assets in using income from
11
the LLC for living expenses during the separation. However, the district court’s
language merely explained Greg’s use of the funds. The court’s rationale for its
dissipation holding is not an actual division or award of LLC assets. Neither the
district court nor this court is distributing LLC assets to Greg. We need not direct
him to return assets to the LLC that he himself distributed.
As to Kathy’s claim that some of the parties’ vehicles are LLC assets, we
first note Kathy did not raise this argument at trial or in her post-trial motion
before the district court. Further, our record does not support that assertion. The
record does not contain title documents, but it does indicate that both parties
consistently referred to the vehicles as personal assets. In both Kathy’s financial
affidavit and proposal for division of assets, she lists all the vehicles as personal
marital assets. Greg’s financial affidavit confirms that treatment. Indeed, the
parties together stipulated pre-trial that all the vehicles in question were marital
assets and under the current ownership of Kathy, Greg, or both jointly. Based on
this record, we affirm the district court’s power to divide the vehicles between the
parties, and its division was equitable. We therefore affirm the district court’s
conclusion as to both the vehicles and Greg’s use of LLC assets for living
expenses.6
E. IPERS Benefits
Kathy lastly asserts the district court used an incorrect formula to divide
her retirement benefits in the IPERS system because it failed to remove future
6
Because the vehicles are not demonstrably LLC assets and neither this court nor the
district court distributes LLC assets in the form of a salary, the district court did not need
to pierce the corporate veil to reach its conclusions despite Kathy’s claims to the
contrary.
12
accumulations from Greg’s share of the benefits. In its order on post-trial
motions, the district court awarded Greg fifty percent of 27/30ths of Kathy’s
IPERS benefits, accounting for pre-marital time, but did not consider that she
continues to work and earn benefits and will do so into the future.
Greg claims Kathy did not raise the issue of the effect of future earnings
on the IPERS calculus at any stage before the district court. We disagree. In her
post-trial motion, she states, “[T]he date of the parties[’] separation, which was
January of 2010,7 should be the cutoff point for any division of the IPERS
account. The trial court ruling should be modified accordingly.” This language
clearly puts the issue of future benefit accrual before the district court. The
district court modified its division of Kathy’s IPERS benefits in response to her
motion, but the modification only accounted for benefits accrued before the
marriage and did not establish a cut-off date as Kathy requested. The district
court stated, “All other requests contained in [Kathy’s] Motion to Expand and
Enlarge Findings and Ruling not expressly granted herein are overruled.” Since
the issue was “both raised and decided by the district court,” it is properly
preserved for our review. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
We agree with Kathy that the district court’s order fails to account for her
future IPERS’ contributions. The proper calculation is that used in In re Marriage
of Sullins, 715 N.W.2d 242, 255–56 (Iowa 2006), and In re Marriage of Brown,
776 N.W.2d 644, 651 n.2 (Iowa 2009). The proper calculation is:
7
Though Kathy has now conceded January 2010 is not the proper cutoff date, she
nevertheless put the issue of future earnings before the district court by initially asserting
that date.
13
[50%] of the gross monthly or lump sum benefit payable at the date
of distribution to [Kathy] multiplied by the “service factor.” The
numerator of the service factor is the number of quarters covered
during the marriage period of [June 26, 1976] through [October 22,
2013] and the denominator is [Kathy’s] total quarters of service
covered by IPERS and used in calculating [her] benefit.
Brown, 776 N.W.2d at 651 n.2. We modify the district court’s order to reflect this
change.
IV. Conclusion
With the modification to treat the inherited properties consistently, the
district court order equitably distributes the parties’ properties and awards
equitable spousal support to Greg. The court’s finding Greg had not dissipated
assets was within the range of its discretion. We affirm on these issues.
However, the district court’s calculation of Kathy’s IPERS benefits failed to
account for benefits expected to accrue from her future earnings. We therefore
modify the district court’s order in that respect. Greg’s share of Kathy’s IPERS
benefits will be calculated on the date of distribution using the method described
by our supreme court in Brown, 776 N.W.2d at 651 n.2. Entry of a corrected
qualified domestic relations order consistent with this ruling shall be prepared by
Kathy’s counsel for the court’s signature.
AFFIRMED AS MODIFIED.
| {
"pile_set_name": "FreeLaw"
} |
988 S.W.2d 189 (1998)
PROVIDENT AMERICAN INSURANCE COMPANY, Petitioner,
v.
Denise CASTANEDA, Respondent.
No. 96-0249.
Supreme Court of Texas.
Argued on January 8, 1998.
Decided December 31, 1998.
Rehearing Overruled April 29, 1999.
*191 Scott P. Stolley, Dallas, Julie Caruthers Parsley, Austin, Colbert N. Coldwell, El Paso, for Petitioner.
Timothy Patton, San Antonio, Ben Langford, El Paso, for Respondent.
Justice OWEN delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice BAKER, and Justice ABBOTT joined, and in which Justice ENOCH joined in all but part V.
Denise Castañeda seeks damages from Provident American Insurance Company for alleged violations of the Insurance Code and the Deceptive Trade Practices Act arising out of the denial of her claim for benefits under a health insurance policy and the manner in which her claim was handled. Because the evidence is legally insufficient to support the jury's verdict, we reverse and render judgment that Castañeda take nothing.
I
Denise Castañeda's father, Guillermo Castañeda, Sr., applied for medical insurance with Provident American Insurance Company in May 1991. He sought a policy that would cover the entire family including his daughter Denise, who was twenty-one years old at the time, her sister, and their brother Guillermo, Jr. During the application process, Guillermo Castañeda, Sr. failed to disclose that just two days before he applied for the policy, Guillermo, Jr. had received medical attention from a physician for jaundice, anemia, and suspected hepatitis. Denise had received medical treatment for jaundice and hepatitis several years prior to the date her father applied for health insurance.
Provident American issued a policy to the family effective June 17, 1991. The policy contained two limitations that are relevant here: (1) it did not cover expenses resulting from a sickness that "manifests" within thirty days of the policy's effective date; and (2) it excluded diseases or disorders of certain internal organs, including the gallbladder, unless the loss occurred more than six months after the policy's effective date.
Less than thirty days after the issuance of the policy, the family learned that Denise's uncle had been diagnosed with hemolytic spherocytosis (HS), a hereditary condition that causes misshapen blood cells. The spleen destroys these cells, which causes the sufferer to exhibit anemia, jaundice, and, in 90% of the cases, gallstones. The treatment for this condition is to remove the spleen and, if gallstones are present, the gallbladder. Because the disease is hereditary, it was suggested that the Castañedas be tested for HS. Denise and Guillermo, Jr. had exhibited yellow skin all of their lives, and on July 20, 1991, the third day after the thirty-day period expired, they were taken to a physician who diagnosed them that same day with HS and referred them to a blood specialist. They saw the hematologist two days later, and he concurred in the HS diagnosis. Two weeks later, Denise and Guillermo, Jr. each *192 had their spleen and gallbladder surgically removed.
The Castañedas submitted claims to Provident American, which were denied. Provident American first asserted the six-month policy exclusion for disorders of the gallbladder but later denied the claims on the basis that HS had manifested within thirty days of the policy's effective date.
Denise Castañeda sued Provident American, alleging violations of the DTPA and of article 21.21 of the Texas Insurance Code, and Guillermo Castañeda, Sr. sued on behalf of Guillermo, Jr. The two suits were consolidated, but Guillermo Castañeda, Sr. later nonsuited his claims. Denise Castañeda proceeded to trial, and the district court submitted three liability questions based on article 21.21 of the Insurance Code and on the DTPA.[1] The jury answered "yes" to each and found that Provident American had engaged in knowing conduct. The jury awarded $50,000 for Denise Castañeda's loss of credit reputation and loss of benefits, collectively, but found no mental anguish damages. The jury also awarded reasonable attorney's fees of 33% of Castañeda's recovery. The trial court rendered judgment on the verdict, trebling the damages and adding a twelve percent penalty on the lost benefits.
The court of appeals affirmed, except as to the twelve percent penalty.[2] Regarding other points of error, the court of appeals concluded that the trial court had erroneously submitted at least one subpart of the first liability question (subpart A)[3] but held that this error was harmless because two other subparts (J and H) were properly submitted and supported by legally and factually sufficient evidence.[4] The court of appeals also held that the evidence was sufficient to support the award of $50,000 for loss of credit reputation and loss of benefits.[5] Provident American filed an application for writ of error with this Court, which we granted. Because there is no evidence to support a finding of liability based on any of the theories submitted to the jury, we do not reach the question of whether a trial court's judgment may be affirmed if a liability question includes a theory that is not legally cognizable but other viable theories are included within the same question. Likewise, we do not reach Provident American's complaint that attorney's fees were improperly based on a percentage of the recovery, an issue that we addressed in Arthur Andersen & Co. v. Perry Equipment Corp.[6] after the court of appeals' decision became final in this case.
II
We begin our review with the first question submitted to the jury.[7] The numerous subparts of Question 1 can be distilled into three categories: (1) whether Provident American denied the claim without a reasonable basis or after its liability had become reasonably clear, (2) whether there was a misrepresentation about the policy, and (3) whether Provident American engaged in unfair claims settlement practices. We first consider whether there was any evidence to support a finding that Provident American denied Castañeda's claim without a reasonable basis or after its liability had become reasonably clear.
III
The trial court submitted two instructions to the jury regarding Provident American's denial of the claim. Subpart J of Question 1 was based on article 21.21-2, section 2(b)(4)[8] and defined an unfair or deceptive act or practice as including: "[n]ot attempting in good faith to effectuate a prompt, fair, and equitable settlement of a claim when *193 liability has become reasonably clear."[9] Subpart G of Question 1 was a hybrid theory that defined an unfair or deceptive act or practice as including: "[d]enying a claim or delaying payment on a claim without a reasonable basis or failing to determine whether there is any reasonable basis for the denial or delay."[10] This instruction embodied the pre-Giles[11] common-law definition of bad faith, but the jury issue included producing cause,[12] which is the causation element for an article 21.21 claim.[13] However, the parties agree that only statutory claims were tried and that no common-law bad faith claim was submitted. Provident American did not urge the trial court to exclude subpart G from the definitions of an "[u]nfair or deceptive act or practice"[14] and contends only that there is no evidence to support a jury finding based on this definition. Our no-evidence review of subpart G is governed by our pre-Giles decisions because this instruction was couched in the same terms as the pre-Giles definition of common-law bad faith. Thus, our decisions in Lyons v. Millers Casualty Insurance Co.[15] and National Union Fire Insurance Co. v. Dominguez[16] guide us in reviewing the record to see if there is any evidence that would support a jury finding based on subpart G.
To determine whether there is any evidence to support a jury finding under Subpart G or J, we must first identify the potential bases Provident American had for denying Castañeda's claim.[17] Then we must determine whether there is any evidence that no reasonable insurer could have denied payment of her claim and whether there is any evidence that liability had become reasonably clear.[18]
A
At varying times, Provident American gave varying reasons for denying Denise Castañeda's claim, but all were grounded in a common nucleus of facts. Provident American cited a policy provision that excluded coverage for a sickness or disorder involving the gallbladder unless the loss occurred more than six months after the date the policy went into effect.[19] Provident American also relied on policy provisions that limited coverage to an illness or disease that first manifested more than thirty days after the policy went into effect.[20] At least one Provident American employee thought that the claim also could have been denied based on the pre-existing condition provision of the policy, although that clause was never invoked. We conclude that, considering all the facts in existence at the time of the denial, there is no evidence that there was no reasonable basis for Provident American's denial of Castañeda's *194 claim (subpart G) or that liability had become reasonably clear (subpart J).
We first consider denial based on manifestation of HS prior to the end of the thirty-day period. The parties dispute when Castañeda's illness manifested. Castañeda argues that there is some evidence that her hereditary illness first manifested after the thirty-day period, and Provident American contends that it manifested before the end of the thirty-day period. However, even if Castañeda were correct, evidence of coverage, standing alone, would not constitute evidence of bad faith denial. In State Farm Lloyds v. Nicolau,[21] we reconfirmed what we held in Transportation Insurance Co. v. Moriel,[22]National Union Fire Insurance Co. v. Dominguez,[23] and other cases, which is that evidence showing only a bona fide coverage dispute does not demonstrate that there was no reasonable basis for denying a claim. By the same token, evidence of a coverage dispute is not evidence that liability under the policy had become reasonably clear.
We held in Dominguez that one physician's opinion that the plaintiff's condition was work-related did not raise a fact issue of whether there was no reasonable basis for denial of a claim because the insurer was entitled to rely on the opinion of other medical professionals who had diagnosed the condition as a degenerative disease.[24] Likewise, in Lyons, we held that the jury was entitled to resolve a conflict in the evidence about whether a windstorm had damaged a home but that evidence related to contractual coverage was not evidence of bad faith unless there was also evidence that the information on which the insurance company relied in denying the claim was unreliable or not objectively prepared.[25] Thus, when medical evidence is conflicting, liability is not reasonably clear, and it cannot be said that the insurer had no reasonable basis for denying the claim unless the medical evidence on which the insurer based its denial is unreliable and the insurer knew or should have known that to be the case.[26]
In Nicolau, this Court concluded that there was evidence of no reasonable basis to deny the claim because the carrier had either relied on an expert's report that the carrier knew "was not objectively prepared" or because "the insurer's reliance on the report was unreasonable."[27] By contrast, there is no evidence in this case that any of the information on which Provident American ultimately relied in denying coverage was "not objectively prepared" or that reliance on the information was unreasonable. The medical records revealed that just three days after the thirty-day waiting period expired, Denise Castañeda saw a physician and was diagnosed with a hereditary blood disorder. Two weeks later, she underwent surgery to remove her spleen as treatment for this condition. During surgery it was confirmed that her disorder had caused gallstones, and her gallbladder was also removed.
The undisputed evidence showed that Denise Castañeda and her brother had exhibited symptoms even before their father applied for the policy. Castañeda's father wrote to Provident American, providing facts that supported a conclusion that the disease had manifested before the end of the thirty-day period and that there was no coverage. Guillermo Castañeda, Sr. advised the following:
*195 Days before he applied with Provident American for a policy, his son's school nurse noted that his son was "drastically jaundice [sic] and lethargic;" she recommended that Guillermo Castañeda take his son to a physician, and he did.
During the thirty-day waiting period, the Castañedas received a call from Denise's uncle who informed them he had been diagnosed with "Congenital Spherocytosis and a Splenectomy was performed."
"The physicians warned that every member of my wife's family with jaundice symptoms must be examined."
"So as Denise and [her brother] had their skin a little yellow throughout their whole lifes [sic], both were checked and diagnosed ... July 20, 1991 [three days after the end of the thirty-day waiting period]."
There is no evidence calling into question Provident American's reliance on this information or its reliance on medical records and on communications with Denise Castañeda's physicians.
The dissent argues that Provident American's failure to consult a physician before it denied the claim is some evidence to support the jury's verdict. In the same vein, the dissent points to the testimony of an expert witness for Provident American who said that HS is a rare condition requiring special expertise for diagnosis. But the issue is not whether a layperson could diagnose HS. It is undisputed that Denise Castañeda had HS and that HS was the reason for her surgery. The issue is whether there was no reasonable basis for an insurer to conclude that HS had first manifested before the end of the thirty-day period in light of the medical records and other information reasonably available to the carrier at the time it denied the claim. There is no evidence that a reasonable insurer could not have relied on information which indicated that HS had manifested before the end of the thirty-day period.
The dissent implies that a factfinder could reasonably infer from the testimony of Provident American's expert regarding claims-handling practices of insurance companies that Provident American did not have enough information to deny the claim when it did. The record does not comport with the dissent's characterization of the evidence. While the expert did say that a company should not deny a claim if it does not have enough information, he did not testify that Provident American lacked adequate information to deny the claim. The expert testified directly to the contrary.
The dissent also asserts that a Provident American employee, Laurie Haggard, testified that she did not have enough information to deny the claim when she sent a December 1991 letter, which quoted the thirty-day policy provision and said that Provident American would re-open the claim upon receipt of new information.[28] The dissent takes this testimony entirely out of context. It is clear from Haggard's testimony that when she prepared and sent the December 1991 letter, she had concluded that Denise Castañeda's claim was not payable but that reconsideration would be forthcoming if information was provided by the insured that HS had first manifested after the thirty-day period. Haggard's testimony and unchallenged documentary evidence also confirm that additional information was provided after December 1991 and that this additional information did not support the conclusion that HS first manifested within the three-day window. By no stretch of the imagination can one infer from Haggard's testimony that Provident American did not have adequate information to deny the claim.
In order for subpart G to support a verdict, Castañeda was required to come forward with some evidence that no reasonable insurer could have believed that HS had manifested before the end of the thirty-day period (an objective prong of the "no reasonable basis" definition of bad faith)[29] and that Provident American knew or should have known that it had no reasonable basis for denying the claim based on the thirty-day waiting period (the second prong).[30] In order for subpart J to support a verdict, Castañeda *196 was required to come forward with some evidence that liability was reasonably clear. She did not meet her burden.
The jury's failure to find that HS first manifested prior to July 17, 1991 is not dispositive of the issue of liability under the DTPA or the Insurance Code, which are extra-contractual claims. Provident American requested a defensive issue in an effort to establish that there was no coverage under the contract of insurance.[31] But even if the jury's negative answer to this issue amounted to a finding of contractual coverage, coverage is not the equivalent of and cannot be the only evidence of bad faith. In Lyons, the jury found that the insured's loss was covered by the policy, but we explained that "bad faith focuses not on whether the claim was valid, but on the reasonableness of the insurer's conduct in rejecting the claim."[32] There is no evidence that Provident American had no reasonable basis for concluding that HS had first manifested in Denise Castañeda prior to the end of the thirty-day period.
Provident American was not required to appeal the jury's failure to find that HS had manifested before the end of the thirty-day period because Castañeda never sought and did not receive any contractual relief. The only theories of liability at issue in the trial court were extra-contractual ones.
We express no opinion regarding the dissent's extended discussion of whether there was contractual coverage and the meaning of "manifest" as used in Castañeda's policy. We note only that there is considerable authority that "manifest" does not necessarily mean manifest to the insured.[33]
B
Castañeda contends that Provident American is liable on an independent ground because one of the reasons it gave for denying coverage was the policy's exclusion of gallbladder disorders during the first six months that the policy was in effect. After Provident American initially had denied coverage on that basis, one of Castañeda's physicians advised that the gallbladder surgery was secondary to HS. At least some individuals within Provident American's organization thereafter concluded that the gallbladder exclusion did not apply. The claim was then denied based on the thirty-day provision discussed above, and the thirty-day provision *197 was cited as the reason for denial when Provident American subsequently responded to an inquiry from the Department of Insurance. However, many months after the claim had been denied because of the thirty-day provision, one of Denise Castañeda's physicians called Provident American to inquire once again why the claim had not been paid and was told that it was because of the six-month exclusion regarding the gallbladder. The president of Provident American also maintained at trial that the claim was not payable because of the gallbladder exclusion and the thirty-day provision.
We assume, but need not decide for purposes of our analysis, that the removal of Castañeda's gallbladder did not fall within policy exclusions. We thus assume that the gallbladder exclusion was not a valid basis for denying coverage. But not every erroneous denial of a claim subjects an insurer to liability, as we confirmed once again in Republic Insurance Co. v. Stoker.[34] There is no evidence in this record that no reasonable insurance company would have denied coverage in light of other facts.
One of Provident American's employees did testify that it was "improper" to deny the claim based on the gallbladder exclusion, and all but the president of the company agreed that reliance on the gallbladder exclusion was misplaced. This testimony is evidence that Provident American denied the claim for the wrong reason, but it does not amount to evidence that no insurer could reasonably have denied the claim. We addressed an analogous situation in Lyons[35] when we distinguished Aranda v. Insurance Co. of North America.[36] We pointed out in Lyons that the insured in Aranda alleged not only that there was evidence of coverage but also that the carrier's adjusters determined that Aranda's claim was compensable and advised the carriers to pay the claim.[37] There is no evidence that anyone at Provident American thought that Castañeda's claim was covered and should be paid. Every Provident American employee, including the employee who concluded that reliance on the gallbladder exclusion was improper, testified that the claim nevertheless was not payable because of the thirty-day provision in the policy. The dissent's statement that Provident American's own witnesses testified that the claim was denied without a reasonable basis has no support in the record.
As just discussed above, there was no evidence that no reasonable carrier could have concluded that HS first manifested prior to the end of the thirty-day waiting period. We explained in Stoker that in determining if an insurer had no reasonable basis to deny coverage, the facts existing at the time of denial are dispositive.[38] We said, "[t]he Stokers cannot preclude Republic from relying on a reason for denying their claim that existed at the time, even if it was not the reason Republic gave."[39] From the time Provident American first denied the claim based on the gallbladder exclusion through the trial of this case, there were facts that gave rise to another coverage questionthe thirty-day waiting period. There is no evidence that, in view of the thirty-day provision, Provident American's liability under the policy was reasonably clear when it denied coverage or that it had no reasonable basis for denying coverage.
Castañeda and the dissent contend that because Provident American gave different reasons for denying the claim at different times, there is some evidence that the denial was pretextual, citing Nicolau[40] and Simmons.[41]*198 In Nicolau, the Court concluded that there was some evidence that the carrier knew that the expert report on which it relied was of questionable validity.[42] In Simmons, the Court concluded that there was evidence that the investigation was biased and outcome-oriented because there was evidence that the carrier knowingly and repeatedly ignored evidence that the insureds did not burn down their home and that they had no motive for arson.[43] Our use of the term "pretextual" in Nicolau and Simmons did not mean that an insured is relieved from its burden of offering evidence that liability had become reasonably clear or that there was no reasonable basis for denying the claim. We did not redefine the common-law tort of bad faith or the legal sufficiency standard of review for article 21.21 cases to include a mechanism by which a factfinder could conclude that the denial was pretextual even though there was a reasonable basis for denying the claim. The use of the concept "pretextual" was another way of saying that there must be some evidence that there was no reasonable basis for denying the claim or that liability was reasonably clear. Here, there is no evidence that Provident American ignored information that would lead a reasonable person to conclude that liability under the policy was reasonably clear or that there was no reasonable basis to deny the claim.
IV
Other instructions submitted to the jury within Question 1 (subparts H, I, and K) concern Provident American's settlement practices.[44] Subpart K is based on subsection 2(b)(5) of article 21.21-2[45] and asked whether Provident American had compelled Castañeda to institute suit to recover amounts due under the policy by offering substantially less than was ultimately recovered. Subsection 2(b)(5) provides a remedy when an insurer neither unreasonably denies nor delays making a settlement offer but nonetheless makes an offer that is so clearly deficient that it is functionally a denial of the claim. There is no evidence that Provident American offered any settlement, and thus any jury finding based on this subpart would have had no support in the record.
Castañeda contends that she is entitled to recover damages equivalent to policy benefits if Provident American failed to acknowledge communications about the claim (subpart H) or if it failed to adopt reasonable standards for investigating claims (subpart I). Neither the statutes nor any of our decisions supports such a proposition.
With regard to the damages that might be recoverable if an insurer failed to adequately investigate a claim, we indicated in Stoker[46] that failure to properly investigate a claim is not a basis for obtaining policy benefits. We did recognize, though, that there might be liability for damage to the insured other than policy benefits or damages flowing from the denial of the claim if the insured mishandled a claim. We said: "We do not exclude, however, the possibility that in denying the claim, the insurer may... cause injury independent of the policy claim."[47] The concurring Justices in Stoker agreed that the manner in which a claim is investigated must be the proximate cause of damages before there could be a recovery.[48] Castañeda and the dissent fault Provident American's investigation of the claim and claims-handling procedures on a number of counts, but none of the actions or inactions of Provident American was the producing cause of any damage separate and apart from those that would have resulted from a wrongful denial of the claim, as we discuss in Part IV.B below.
A
Provident American failed to respond to certain letters and phone calls during 1992, *199 which was many months after Denise Castañeda's surgery. Guillermo Castañeda, Sr. continued to contact Provident American long after the claim had been denied a second time and after there already had been extensive correspondence among Provident American, Castañeda's father, and her physicians. Provident American had sent a letter on December 12, 1991 to Guillermo Castañeda, Sr. explaining the thirty-day waiting period and stating that "[u]pon receipt of the necessary information, we will gladly reopen this claim for possible disbursement of benefits." Provident American subsequently received additional information, including the letter from Guillermo Castañeda, Sr. described in detail in Part III.A above, and more correspondence from Denise Castañeda's physicians. As we have seen, none of this information indicated that HS first manifested within the three-day window between the expiration of the thirty-day period and the day Castañeda was diagnosed with HS. In fact, all information indicated the opposite.
The result of the activity that occurred after Provident American's December 1991 letter was that the claim still was not paid, and the physicians were told by Provident American that it would not be paid. While Provident American may not have communicated directly with the Castañedas, and its conduct is less than exemplary, this does not amount to "failing to adopt and implement reasonable standards for prompt investigation of claims" or "failing to acknowledge with reasonable promptness pertinent communications with respect to claims."[49]
Under Castañeda's theory, a carrier would be liable if it did not respond to each and every request for payment or inquiry by an insured or the insured's physician sent after the claim had been denied and the reasons for the denial had been explained. Nothing in the DTPA nor the Insurance Code imposes liability on such a basis.
B
Provident American contends and we agree that its conduct in handling the claim did not cause any injury independent of the denial of policy benefits. The only damages awarded by the jury that were not policy benefits were for loss of credit reputation. But any loss of credit reputation stemmed from the denial of benefits, not from any failure of Provident American to communicate with Castañeda or to properly investigate her claim. Generally, loss of credit reputation would not flow from "some act, so extreme" by the carrier in denying the claim that it caused "injury independent of the policy," as contemplated in Stoker.[50]
Moreover, there is no evidence of lost credit reputation in this case. Denise Castañeda testified that she had applied for credit cards and was turned down. This evidence is legally insufficient. As we recently held in St. Paul Surplus Lines Insurance Co. v. Dal-Worth Tank Co., "`[t]o prove that credit rating is harmed is to prove nominal damages; not until a loan is actually denied or a higher interest rate charged is there proof of actual damages which may be compensated.'"[51] We explained that there must be a showing that the inability to obtain a loan "resulted in injury and proof of the amount of that injury."[52] There is no evidence of this character before us.
V
Denise Castañeda contends that by pre-approving her surgery, Provident American represented that her condition was covered, and that when Provident American thereafter failed to pay her claim, this amounted to a violation of the Insurance Code and the DTPA. The pre-approval in this case was not a representation that is actionable under the Insurance Code or the DTPA. Nor is there any evidence that Castañeda relied on the pre-approval to her detriment.
*200 At the time Provident American authorized surgery, it had not been given material facts that were in the possession of the Castañedas and the physicians who treated Denise Castañeda. Provident American did not know that Denise Castañeda had exhibited symptoms and had been treated for jaundice and hepatitis long before her father applied for the policy. Nor did it know that the hereditary disease HS had been diagnosed in another family member within the thirty-day waiting period or that Denise Castañeda's brother, Guillermo, Jr., also an insured, had been treated for jaundice, suspected hepatitis, and anemia just two days before their father met with Provident American to apply for this policy. Under these circumstances, Provident American's pre-authorization at most amounted to an uninformed conclusion on its part, based on what it knew from the insured and the insured's physicians, that Castañeda's blood disorder was a covered sickness, namely, that HS had not manifested prior to the end of the thirty-day waiting period or was not otherwise excluded. The pre-approval does not constitute a false, misleading, or deceptive act; a misrepresentation of the terms of an insurance policy; or an assertion with respect to insurance that was untrue.
Castañeda's position, if accepted, would impose strict liability on carriers that are not given pertinent facts before a procedure is pre-approved and who later learn that they have a good faith, reasonable basis for denying coverage. We do not hold today that pre-approval of medical procedures can never constitute an actionable representation under article 21.21 or the DTPA. And we are not called upon to consider any other theory of liability. We hold only that the pre-approval given in this case does not subject Provident American to liability under the DTPA or article 21.21 because neither the insureds nor their physicians imparted key facts before the pre-approval was given.
Provident American also contends and we agree that there is no evidence that Castañeda relied on the pre-approval to her detriment. There is no evidence that but for the pre-approval, Castañeda would not have had the surgery. The evidence at trial was that removal of the spleen is the only known cure for HS. Castañeda never offered any evidence that she would have foregone the surgery if her insurer had not pre-approved it. This case is similar to the situation presented in Royal Globe Insurance Co. v. Bar Consultants, Inc.,[53] in which a bar was damaged by vandals. The insured called the insurer the next morning and was told that the loss was covered and to go ahead and have the damage repaired. The policy in fact expressly excluded loss caused by vandalism.[54] We held that no detriment was shown from reliance on the insurer's post-loss representation of coverage because the bar's owner conceded that he would have made the repairs even if there were no coverage.[55] The representation of coverage by Provident American, like the representation in Royal Globe, will not support the judgment in this case because there is no evidence of reliance by the Castañedas.
VI
Two other liability issues were submitted. Question 3 inquired if Provident American had engaged in unconscionable conduct as defined in former DTPA section 17.45(5).[56] Castañeda argues that the same evidence that she contends supports findings of liability under Question 1 is also evidence of unconscionability. But none of the evidence regarding the manner in which Provident American handled the claim nor the reasons for its denial of the claim amount to evidence that Provident American took "advantage of the lack of knowledge, ability, experience, or capacity" of Castañeda to a grossly unfair degree or that its conduct resulted in a "gross disparity between value *201 received and consideration paid," which were the definitions of unconscionability in Question 3. The only additional argument Castañeda makes regarding unconscionability is that her father paid the specified premium for this policy but that the policy was valueless because her claim was denied. Of course, if the policy did cover her claim, she was entitled to recover policy benefits, and the policy was not "valueless." If the policy did not cover this claim, it was still not valueless because it covered a myriad of other illnesses Castañeda could have contracted while the policy was in effect. Likewise, there is no evidence to support the findings under Question 4, which inquired if Provident American had made representations that goods or services had characteristics they did not have or were of a particular quality, or that an agreement conferred rights that it did not contain.
In sum, there is no support in the evidence for any of the extra-contractual claims on which Denise Castañeda obtained findings. Castañeda did not plead and did not obtain a determination from the trial court that Provident American was liable for breach of the insurance contract. Accordingly, there is no basis on which Castañeda may recover based on this record.
* * * * *
Because the judgment against Provident American is not supported by legally sufficient evidence, the judgment of the court of appeals is reversed, and judgment is rendered that Castañeda take nothing.
JUSTICE ENOCH filed a concurring opinion.
JUSTICE GONZALEZ filed a dissenting opinion, in which Justice Spector joined.
JUSTICE HANKINSON did not participate in the decision.
Appendix A
Question 1 read:
Did PROVIDENT AMERICAN INSURANCE COMPANY engage in any unfair or deceptive act or practice that was a producing cause of damages to DENISE CASTAñLEDA?
"Unfair or deceptive act or practice" means any of the following:
A. Engaging in any false, misleading, or deceptive act or practices.
"False, misleading, or deceptive acts or practices" means an act or series of acts that have the tendency to deceive an average ordinary person, even though that person may have been ignorant, unthinking, or gullible; or
B. Making or causing to be made any statement misrepresenting the terms, benefits, or advantages of an insurance policy; or
C. Making, or directly or indirectly causing to be made, any assertion, representation, or statement with respect to insurance that was untrue, deceptive, or misleading; or
D. Omitting any information or making any false implication or impression that was either misleading or deceptive or had the capacity to be misleading or deceptive; or
E. Making any misrepresentation relating to insurance.
"Misrepresentation" means any of the following:
1. any untrue statement of a material fact; or
2. any failure to state a material fact that is necessary to prevent the statements from being misleading, when these statements are considered in the light of the circumstances under which they are made; or
3. the making of any statement in such manner or order as to mislead a reasonably prudent person to a false conclusion of a material fact; or
4. any material misstatement of law; or
5. the failure to disclose any matter required by law to be disclosed.
F. Knowingly misrepresenting to claimants pertinent facts or policy provisions relating to coverages at issue; or
*202 G. Denying a claim or delaying payment on a claim without a reasonable basis or failing to determine whether there is any reasonable basis for the denial or delay; or
H. Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies; or
I. Failing to adopt and implement reasonable standards for prompt investigation of claims arising under its policies; or
J. Not attempting in good faith to effectuate a prompt, fair, and equitable settlement of a claim when liability has become reasonably clear; or
K. Compelling policyholders to institute suits to recover amounts due under its policies by offering substantially less in the amounts ultimately recovered and suits brought by them.
Answer "Yes" or "No".
Answer: yes
If your answer to Question Number 1 is "Yes," then answer the following Question. Otherwise, do not answer the following Question.
Question 3 read:
Did PROVIDENT AMERICAN INSURANCE COMPANY engage in any unconscionable action or course of action that was a producing cause of damages to DENISE CASTAÑEDA?
An "unconscionable action or course of action" is an act or practice that, to a person's detriment, either
a. takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree or
b. results in a gross disparity between value received and consideration paid in a transaction involving transfer of consideration.
Answer "Yes" or "No."
Answer: yes
Question 4 read:
Did PROVIDENT AMERICAN INSURANCE COMPANY engage in any false, misleading, or deceptive act or practice that was a producing cause of damages to DENISE CASTAÑEDA?
"False, misleading, or deceptive act or practice" means any of the following:
a. Representing that goods or services had or would have characteristics that they did not have; or
b. Representing that goods or services are or will be of a particular quality if they were of another; or
c. Representing that an agreement confers or involves rights that it did not have or involve.
Answer "Yes" or "No."
Answer: yes
ENOCH, Justice, concurring.
I join the Court's judgment. Because I do not agree with the Court's analysis in part V, I write separately.
I agree with the Court that misrepresenting coverage might be a basis for imposing liability under the DTPA and the Insurance Code in another case.[1] But both the Court and the dissent incorrectly presume that preapproval constitutes, per se, an independent "representation." To the contrary, preapproval cannot have any legal significance apart from the underlying contract.
Preapproval, generally, is nothing more than an iteration of the coverage already contracted for. What Castañeda really questions is whether Provident's preapproval estops it from relying on the contract's other terms. That is, did Provident, by preapproving surgery, waive its rights to rely on the explicit terms of the insuring agreement? I think not.
Let me give an example. Suppose Smith and Jones enter a contract on June 1 by which Smith agrees to buy Jones's car on July 1, but only if Jones owned the car on June 1. Then, on June 15, Jones calls Smith and asks, "You're still going to buy my car, aren't you?" To which Smith replies, "Yes, I'm buying your car." July 1 comes and *203 Jones tenders a car, but the car was not owned by Jones on June 1. Therefore, Smith refuses to pay.
Does Jones have a fraud/misrepresentation claim based on Smith's June 15 oral statement that he would buy the car? Surely not. One could hardly argue that Smith's statement deprives him of the right to assert the conditions of the contract at the risk of being sued for a misrepresentation. If Jones has a cause of action, it is at best for breach of contract.
Insurance policies are contracts subject to interpretation under general contract principles.[2] Provident's "representation" to Castañeda about the contract (i.e., preapproval) does not preclude it, at the risk of being sued for misrepresentation, from relying on the contract.
* * * * *
Provident's preapproval was not an independent "representation" under the Insurance Code. Consequently, the Court errs in presupposing that it was. With these remarks, I join all but part V of the Court's opinion, and I join the Court's judgment.
Justice GONZALEZ, joined by Justice SPECTOR, dissenting.
I dissent from the Court's opinion and judgment because it turns the no-evidence standard on its head. The Court ignores important evidence that supports the judgment, emphasizing evidence and indulging inferences contrary to the verdict, and resolves all conflicts in the evidence against the verdict. I would affirm the judgment of the court of appeals.
I
In order to put my disagreement with the Court's opinion in context, the following recitation includes facts favorable to the jury verdict which the Court chooses to ignore. In May 1991, Guillermo Castañeda applied for a health insurance policy for his family, including his wife, Amparo Castañeda, and their children, Guillermo Jr., Thania, and Denise Castañeda. Provident American Insurance Co. (Provident) issued the policy with an effective date of June 17, 1991. On July 14, 1991, the Castañedas learned that Amparo's brother had been diagnosed with a condition called hemolytic spherocytosis (HS), a genetic condition causing misshapen blood cells. The spleen destroys the blood cells, often causing anemia and jaundice. The Castañedas were advised that any of their children with yellowish skin tone should be tested. Guillermo Jr. had a yellow skin tone and recently had been diagnosed with anemia, which seemed to cure itself with rest. Denise seemed healthy and had not seen a doctor in years. She was active in sports, marching band, and aerobics. Her skin coloring was yellowish like her father, thus they decided to have Guillermo Jr. and Denise Castañeda tested. On July 18 1991, a Dr. Gutierrez saw Guillermo Castañeda, Jr., but was unable to diagnose the condition and referred the Castañedas to a specialist, Dr. Canales. On July 20, 1991, Dr. Canales diagnosed HS in both children.
Ms. Castañeda's doctors decided to treat the condition by removing her spleen. Her surgeon's assistant called Provident and obtained pre-approval for the surgery. Ms. Castañeda underwent surgery on August 6, 1991. A preoperative evaluation revealed she had gallstones. While removing her spleen, the surgeon decided to remove her gallbladder also.
Two weeks later, her father submitted a claim for the medical bills and expenses from the surgery. Provident responded in October 1991 that no benefits would be paid "at this time," because gallbladder conditions treated during the first six months from the effective date of the policy were excluded from coverage. In October and November 1991, Dr. Canales wrote Provident letters explaining that he only diagnosed Ms. Castañeda when he examined her for the first time on July 20, 1991, and that the gallbladder problems were secondary to HS.
On December 12, 1991, the claims department again wrote a letter to Mr. Castañeda *204 stating that the company would not pay the claim. In the letter, Provident no longer relied on the six-month exclusion. Instead it referred to the policy provision precluding coverage for an illness or disease manifesting itself less than thirty days after the policy date and noted that Dr. Canales' records indicated a history of jaundice and hepatitis. The letter continues:
We will need complete office records from Dr. Canales to evaluate Denise's claim. We also need to know of any other physicians who may have treated Denise, to establish a definite date of onset for this illness.
Upon receipt of the necessary information, we will gladly reopen this claim for possible dispersement of benefits.
In January 1992, Dr. Canales again wrote Provident, reiterating the date he diagnosed HS. Mr. Castañeda also wrote explaining the events leading up to the diagnosis of his daughter's illness and subsequent treatment, supported with correspondence from the doctors. Despite its representation in December that it would reopen the file upon receipt of such information, Provident neither acknowledged the letters nor reopened the file.
In February 1992, Mr. Castañeda called Provident to check the status of his claim. An employee in the claims department told Mr. Castañeda that he should have a response in about two weeks. In March 1992, the operating surgeon wrote Provident asking it to reconsider denial of benefits because Ms. Castañeda had no gallbladder symptomology, and the HS was not diagnosed until Dr. Canales examined her. Provident never responded to either Mr. Castañeda's or the surgeon's communications.
Finally, Mr. Castañeda complained to the Texas Department of Insurance. It directed Provident to respond to Mr. Castañeda's complaints. The president of the company, Robert Clines, replied to the Department of Insurance in a letter dated April 15, 1992. In it he claimed that Ms. Castañeda had a medical history similar to her brother, who had symptoms of HS. The letter concluded, "The policy contract specifies that the origin of symptoms is evidence of the existence of an illness under both the pre-existing condition and thirty-day sickness limitations." Despite these representations to the Department of Insurance, however, in July 1992, Provident was still telling Dr. Canales that the reason for denying Ms. Castañeda's claim was the six-month waiting period for a disease involving the gallbladder.
The testimony about how Provident handled the claim internally is confusing at best. Its witnesses could not agree whether it denied the claim because of a preexisting condition, the thirty-day manifestation period, or the six-month exclusion for gallbladder conditions. With the exception of its president, all of Provident's witnesses testified that the October 1991 rejection of the claim as a condition involving the gallbladder was improper.
Provident treated Mr. Castañeda's and Dr. Canales' subsequent communications as an appeal of the initial denial, which went to Laurie Haggard, the assistant claims department manager. She testified that the October 1991 letter denying the claim because of involvement of the gallbladder was "incorrect." Although she had never heard of HS before she reviewed the denial, she did not consult Provident's in-house medical staff before sending the December 1991 letter raising the thirty-day manifestation issue. She said that probably no one else at the company sought medical advice either, or else it would have been noted in the file. Haggard decided to deny Guillermo Jr.'s claim, but "felt like we needed some additional information" for Denise Castañeda. Haggard said she did not know when Ms. Castañeda's condition manifested. She did not know how it manifested. She thought that there might be records from Dr. Juarez which would show that the claim was not covered. However, Provident never asked specifically for those records. Haggard agreed that "you have to have proof" to deny a claim and that it was improper for Provident to fail to follow up on its request for more information, but "that's just the way it happened on this particular claim."
The director of operations, Ann Russell, thought the denial of the claim was "clear-cut" because it occurred so close in time to *205 the effective date. She first testified that the company properly denied coverage for non-disclosure of a preexisting condition. After reviewing the claims file on the witness stand, however, she admitted that the claim was never denied for that reason. She then asserted that the claim was properly denied because of the thirty-day manifestation exclusion stated in the December 1991 letter. Ms. Russell testified that she "would have probably been the final arbiter to deny this claim," but had never heard of HS before the Castañedas' cases, and did not consult the company's medical director.
The insurance expert witness for Provident asserted that the December 1991 letter was not a denial but merely a request for more information. He testified that if a company did not have enough information on hand to deny a claim, it could not do so merely on its surmise that there might be other evidence out there that would support denial. Provident's medical expert, an hematologist, testified that HS is a rare condition requiring special expertise to diagnose.
The president of the company testified that the December 12, 1991 letter was not a denial, but a "special letter" seeking more information. Later in his testimony, however, he asserted that the letter was a denial. He testified that he "ultimately" consulted the company's staff doctor, although the consultation was not reflected in any of the company's files as was customary company practice. The doctor died prior to this litigation. The president also said he consulted a medical treatise on the subject. However, he never said when he first reviewed the claim. It must have been after the denial in December 1991, since the operations manager said she had the final say. The more reasonable inference is that the president of the company did not review the claim until the Department of Insurance demanded a response.
After hearing this evidence, the jury returned a verdict generally favorable to Ms. Castañeda. The jury failed to find that Ms. Castañeda's illness manifested itself within the excluded time frame. The charge reads:
Do you find from a preponderance of the evidence the HEMOLYTIC SPHEROCYTOSIS of Plaintiff, DENISE Castañeda, first manifested itself prior to July 17, 1991?
You are instructed that under the policy a covered "sickness" is an illness or a disease of a member of the family group which first manifests itself more than thirty (30) days after the policy date.
Your are further instructed that "Manifestation" does not necessarily mean the time at which a covered sickness is medically diagnosed.
Answer: "Yes" or "No"
Answer: no
The jury found bad faith and various DTPA and Insurance Code violations including: engaging in false, misleading, or deceptive acts or practices; making representation with respect to insurance that was untrue, deceptive, or misleading; knowingly misrepresenting pertinent facts or policy provisions relating to coverages at issue; failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies; and failing to adopt and implement reasonable standards for prompt investigation of claims arising under its policies.
Based on the favorable jury findings, the trial court rendered judgment in favor of Ms. Castañeda. The court of appeals affirmed the judgment except for a twelve percent penalty for failure to pay the claim within 30 days. 914 S.W.2d 273. It held that Ms. Castañeda had private causes of action under the DTPA for failing to settle the claim in good faith and failing to acknowledge the insured's communication promptly and held that the evidence was legally and factually sufficient to support the judgment.
II
The Court sustains Provident's no evidence points by relying on evidence contrary to the jury's verdict, calling it "undisputed". However, even if some testimony is not directly contradicted, it may still conflict with other evidence in the record, and there may still be a fact question on the ultimate issues. The Court fails to carefully articulate rules governing when and for what purpose it may consider evidence contrary to a verdict and *206 thus creates more confusion about the "no evidence" standard.
Our recent writings on legal insufficiency have caused concern that perhaps we have fundamentally altered no-evidence review. See generally, Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. 1699 (1997); Gallagher & Vaught, Factual and Legal Sufficiency in the Texas Supreme Court: A Debate, in STATE BAR OF TEXAS PROF. DEV. PROGRAM, ADVANCED CIVIL APPELLATE PRACTICE COURSE, X (1996). An analysis of the legal sufficiency of evidence, properly conducted, is a perfectly legitimate means for addressing pure legal questions. However, when we review legal sufficiency, we must make it abundantly clear that we are not merely reweighing the evidence contrary to the constitutional limits on our authority. See TEX. CONST. art. V, § 6. When we rely on evidence contrary to the verdict to overturn it, we must carefully explain how our analysis fits within the framework of legal sufficiency standards of review.
We have repeatedly held that an appellate court reviewing no evidence complaints may consider only the evidence and inferences that tend to support the finding and must disregard all contrary evidence and inferences. See, e.g., Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Brown v. Edwards Transfer Co., Inc., 764 S.W.2d 220, 223 (Tex.1988); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); see generally Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 364 (1960). In other cases, however, we have stated broadly that all evidence may be considered in a no evidence review. Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Merrell Dow Pharmas., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). The apparent conflict has led one commentator to conclude that our court has expanded the scope of review and considers all evidence in a no-evidence challenge. See Hall, Standards of Review in Texas, 29 St. MARY'S L.J. 351, 478-79 (1998).
We have never overruled Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), or In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex.1951), or the legion of opinions that rely on them. However, they oversimplify legal sufficiency review. There are circumstances in which we must consider evidence contrary to the verdict for a specific purpose within our constitutional limitations. To identify those exceptions, it is helpful to recall the circumstances in which a legal insufficiency challenge succeeds. We will sustain a legal sufficiency point when:
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact.
Merrell Dow Pharms., Inc., 953 S.W.2d at 711. When there is an absence or mere scintilla of evidence to support jury findings, a no-evidence point should be sustained regardless of evidence to the contrary. Thus, in the first and third situations, considering evidence contrary to the verdict serves no legitimate purpose.
In the second situation, it may be necessary to consider evidence unfavorable to the verdict to know that certain offered evidence is incompetent. For example, a witness may reveal on voir dire that prior testimony was hearsay or otherwise incompetent.
In the fourth situation, obviously it is impossible to conclusively establish the opposite of a vital fact without considering evidence contrary to the verdict. A reviewing court first looks for evidence supporting the jury's failure to find, disregarding all evidence to the contrary. If there is no such evidence, then the court may look to the entire record to decide if the proposition is established as a matter of law. See Holley v. Watts, 629 S.W.2d 694, 696-97 (Tex.1982).
Finally, we have had to particularize our review to certain issues which are not amenable to standard no-evidence rules. A finding of bad-faith is one such issue, at least as we defined the tort before 1997, because it must be supported by some evidence of a complete absence of a reasonable basis for denying the *207 claim. See Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 600 (Tex.1993), modified by Universe Life Ins. Co. v. Giles, 950 S.W.2d 48 (Tex.1997) (redefining the tort of bad faith). We concluded that the only way an appellate court can determine if there was a complete absence of a reasonable basis for denial is to first identify the possible bases raised by the facts of the case, before applying traditional no-evidence rules:
A legal sufficiency analysis requires the reviewing court to give weight only to evidence supporting the judgment for the insured and reject all evidence to the contrary. However, only after an appellate court has determined what potential basis an insurance company may have had for denying a claim can the court conduct a meaningful review of whether the insured has presented evidence that the insurer lacked a reasonable basis for denying or delaying the claim. The court may then apply the traditional rules of legal sufficiency review, giving weight only to evidence in support of the judgment.
National Union Fire Ins. Co. v. Dominguez, 873 S.W.2d 373, 376 (Tex.1994).
Thus, at least for pre-Giles cases, there are three steps for reviewing bad-faith findings. First, we must isolate the possible reasonable bases the insurer may have had for denying the claim. This inquiry requires that we look at all evidence, whether it favors the judgment or not. Second, we must determine if the insured presented evidence that the insurer lacked a reasonable basis for denying the claim and that it knew or should have known it had no reasonable basis for its actions. It is at this point that we must return to "traditional rules of legal sufficiency review, giving weight only to evidence in support of the judgment." Dominguez, 873 S.W.2d at 376. Third, we review whether the insurer has conclusively established the opposite of a vital fact.
In this case, the facts, circumstances, and pleadings suggest three possible bases for denying the claim, all arising from the policy. They are the insuring clause, which defined a covered sickness as one manifesting more that thirty days after the effective date, the exclusion for diseases involving the gallbladder, and the exclusion of preexisting conditions. The second step is to review whether Ms. Castañeda presented evidence that Provident lacked a reasonable basis for denying or delaying the claim, and that it knew or should have known that it lacked a reasonable basis. Provident's own witnesses testified that they denied the claim without a reasonable basis. They contradicted each other about why the claim was denied, when it was denied, or even if it ever had been denied at all. The evidence most favorable to the verdict is that a low-level clerk erroneously rejected the claim in October 1991. By December, Provident knew its error but asserted a new excuse for denying the claim, even though it knew it did not have enough information to legitimately deny on that basis. Although it promised to reconsider, it simply turned a deaf ear to all further attempts by the insured to get a straight answer.
The Court justifies giving no weight to evidence supporting the verdict by considering what it calls "unchallenged" and "undisputed" evidence to the contrary. As one example, it says that the testimony of Laurie Haggard, who said she authorized denial of the claim when the file would not justify denial, if put in "context," shows that she concluded that the claim was not covered, and that additional information received afterwards did not show the HS manifested "during the three-day window." Haggard's testimony, in essence, is that she had a hunch the claim was deniable which would be borne out if the company ever received the records of a "Dr. Juarez." While Provident received additional letters and records, they were largely duplicative of what it already had. Haggard already knew about the maternal uncle and that Ms. Castañeda had a history of jaundice in the past. The Court does not say what information Provident learned after December 17 that made the difference between a reasonable and unreasonable denial.
Haggard's testimony that the information in the company's file was insufficient to deny the claim is, I would think, some evidence that Provident violated the duty of good faith, defined in the charge as "[d]enying a claim or delaying a claim without a reasonable *208 basis or fail[ing] to determine whether there is any reasonable basis of the denial or delay...." If the Court today cannot recognize the evidence of bad faith in this case, I am not sure what quantum of evidence it will take in the future for this Court to affirm a judgment based on the tort of "bad faith."
The Court appears to view the above evidence as merely sloppy claim handling practices that caused no harm. Instead of analyzing whether there is evidence of bad faith as defined in the charge, it gives the impression that Ms. Castañeda was required to prove when HS manifested within an artificially created three-day window between the thirtieth day of the policy and the day HS was diagnosed. I agree that a claim that is in fact not covered by the policy will not support a bad faith suit even if the insurer gave the wrong reason. See Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex.1995). However, Provident's brief to us does not argue that it conclusively established lack of coverage. It does not challenge the jury's failure to find that HS manifested within 30 days from the effective date of the policy which the Court now holds was established as a matter of law. Provident cites Stoker only in its overall argument that the company had a reasonable basis for denial.
III
I would hold that Ms. Castañeda's condition was covered because it had not manifested within the thirty-day exclusionary period. Our Court has not written on the subject, but a secondary authority has defined a general rule for when an illness has its inception: "an illness is deemed to have its inception when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the illness." John C. Williams, Annotation, Construction and Application of Provision in Health or Hospitalization Policy Excluding or Postponing Coverage of Illness Originating Prior to Issuance of Policy or Within Stated Time, 94 A.L.R.3d 990, 998 (1979) (emphasis added). Another authority agrees that there is a general rule for inception of disease, but does not agree that manifest has a uniform meaning:
While the general rule [about inception of disease] is widely if not unanimously recognized, there is no unanimity as to exactly what constitutes manifestation of a disease. The rule varies state to state, if not from case to case.
WILLIAM F. MEYER, LIFE AND HEALTH INSURANCE LAW § 17:6 (1972). An examination of state supreme court cases reveals that Meyer is correct, and that any semblance of a majority rule for manifestation is illusory. It is important to note not only how a court in a particular case defines insuring clauses and pre-existing condition exclusions but how it applies the definitions to the facts of the case.
For example, in a 1975 case, the Supreme Court of Mississippi adopted the standard formulation, that a "disease will ordinarily be deemed to exist when a distinct symptom, ailment or condition manifests itself from which a doctor can with reasonable accuracy diagnose the disease." Blue Cross & Blue Shield v. Mosley, 317 So.2d 58, 61 (Miss. 1975). In a later case, it clarified:
[A] disease or condition would have had to manifest itself in some way to the insured in order for the insurer to deny coverage. Not only must the physical condition or disease exist prior to the effective date of coverage under such an exclusion, it was also for the insurer to show a manifestation of it to the insured prior to date of becoming insured.
Mississippi v. Carper, 545 So.2d 1, 2-3 (Miss.1989).
The Supreme Court of Washington has held that "a condition does not become manifest until it is known." Hovis v. Industrial Hosp. Ass'n., 71 Wash.2d 169, 426 P.2d 976, 977 (Wash.1967). In that case a major medical and hospital policy provided coverage for "physical illnesses, unless specifically excluded, which become manifest or have their original date of onset after Membership hereunder has been continuously effective for thirty or more days." Id. The insured underwent surgery for vascular disease about a year after the effective date of the policy. However, the insured had suffered with pain *209 and cramps in his legs and hips for several years. An expert testified that if the insured had been examined by a vascular specialist five years earlier, the condition would have been discovered, but without such an expert examination it would not. The defendant argued that the test should be whether one learned in medicine could have diagnosed the condition with reasonable accuracy. The supreme court approved of the trial court's answers to the argument:
To adopt any other rule would make this type of coverage substantially worthless. When the company doesn't require a medical examination as a condition precedent it would put the burden upon the insured to have his own medical examination, at his own risk, and I don't think that's the intention of these policies at all.
....
[I]t is inconceivable and would shock conscience that a health insurance company could escape liability in that way, and I can't believe it's the law. There's some language in some decisions in other states that might be taken to indicate that, but I don't think that is the law, I don't think it would be intended to go this far.
Id. at 977.
The Supreme Court of Oregon has focused on whether the insured knew or should have known of a pre-existing condition. See Evans v. Investors Ins. Corp., 272 Or. 257, 536 P.2d 506 (Or.1975). The policy in that case defined a covered sickness as one "which first manifests itself 30 or more days after this policy has been in force." Id. at 507. Within 30 days of the effective date, the insured was told by an army doctor at a preinduction physical that he had a slight varicocele of his left testicle, although the doctor said he was not sure. The insured later had surgery for an inflamed varicocele, and the insurance company rejected the claim. The Oregon court defined manifest as meaning "to show plainly" or "to put beyond question or doubt," and held that the army doctor's equivocal diagnosis did not constitute a manifestation of the condition. Id. at 508.
The Supreme Court of Nebraska has applied a reasonable-insured test. See Fuglsang v. Blue Cross, 235 Neb. 552, 456 N.W.2d 281 (Neb.1990), overruled on other grounds, 249 Neb. 789, 545 N.W.2d 727, 735-36 (Neb.1996). Several months before the effective date of the policy, the insured in that case complained to the family physician that she had difficulty swallowing, chewing, and moving her tongue and weakness in her arm and leg muscles. She was diagnosed after the policy date with myasthenia gravis by a Tensilon test. The court upheld the jury's verdict for the insured, holding that "`A condition, not otherwise diagnosed, is manifest when the insured knew or should have known of the existence of his illness because he was experiencing symptoms that would lead a reasonable person to seek a medical diagnosis.'" Id. at 284 (quoting American Sun Life Ins. Co. v. Remig, 482 So.2d 435 (Fla.App.1985)).
In Kissil v. Beneficial National Life Insurance Co., 64 N.J. 555, 319 A.2d 67, 70 (N.J.1974), the Supreme Court of New Jersey did not formulate a test but held that a disease would be "contracted and commencing" only if symptoms manifest themselves with reasonable certainty. In that case a child was born and immediately diagnosed with a condition of meconium ileus and presumptively diagnosed with cystic fibrosis. After the coverage date fifteen days later, he was conclusively diagnosed with cystic fibrosis, an inherited disease present at birth. The defendant's medical expert testified that meconium ileus is conclusively indicative of cystic fibrosis. The plaintiff's expert testified that not all babies born with meconium ileus become cystic. The supreme court held that the issue of whether cystic fibrosis commenced prior to coverage was an issue properly left to the jury because of the conflicts in the evidence and inferences that could be drawn from it. Id.
A number of courts have adopted what appears to be a broad definition of manifestation, but it is not clear how they would rule on facts such as those in the case before us today. In most of those cases, the insureds appear to have been suffering from symptoms from which they knew they had an illness. In Dirgo v. Associated Hosps. Serv., Inc., 210 N.W.2d 647 (Iowa 1973), the policy *210 excluded existing conditions. The year before the effective date of the policy, the insured began experiencing lower abdominal discomfort which continued after surgery for a prostate infection. After the policy date, the condition was diagnosed as diverticulitis using standard medical procedures. The court upheld the trial court decision in favor of the insurer on a substantial evidence analysis. Id. at 651.
In Bishop v. Capitol Life Insurance Co., 218 Kan. 590, 545 P.2d 1125 (Kan.1976), the issue was also whether a condition existed on the policy date. For several years before the policy date, the insured had suffered chest pains and shortness of breath. After the policy date, he was diagnosed with arteriosclerotic heart disease, and tests revealed an old scar on the wall of the heart. The court held that the heart condition was active or manifest to one learned in medicine. Id. at 1129.
The issue in Southards v. Central Plains Ins.Co., 201 Kan. 499, 441 P.2d 808 (Kan. 1968), the issue was whether a kidney condition commonly known as Bright's disease was contracted before the policy date. The insured had been diagnosed with Bright's disease before and after the policy date, although the insured did not learn of that fact until afterwards. Id. at 813.
The policy in Dowdall v. Commercial Travelers Mut. Accident Ass'n, 344 Mass. 71, 181 N.E.2d 594 (Mass.1962), covered sicknesses "originating" more than 30 days after the effective date of the policy taken out in 1952. Although the facts are not explicit, the insured said he had experienced "trouble" with his arms and legs since 1944. The cause of his disability was multiple sclerosis. His physician testified that the symptoms appeared in 1944, that he "had reasonable cause" to believe that the condition was MS when he treated the insured in 1947 and 1948, but did not tell him he had the disease in 1952, and that a definite diagnosis was made in 1955. Id. at 595.
Finally, in Richards v. American Sec. Life Ins. Co., 303 P.2d 1110 (Okla.1956), the policy only insured "sickness the cause of which originates while the policy is in force...." Id. at 1111. Before the policy date, the insured had a cataract removed from his right eye, and his left eye was only 20/30 due to sclerosis of the lens. After the policy date, he had a cataract removed from the left eye and made a claim for the medical expenses. The defense expert testified that a sclerosis is the same as a beginning cataract. The court held that it would not overturn a jury verdict for the defendant when there was a conflict in the medical testimony. Id. at 1112.
Insurance policies are subject to the same rules of construction as other contracts. See Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997). It must be considered as a whole and effect given to each part if reasonably possible. National Sec. Life & Cas. Co. v. Davis, 152 Tex. 316, 257 S.W.2d 943, 944 (Tex.1953). The plain, ordinary, and generally accepted meaning of words is preferred unless the policy itself shows that the terms have been used in a technical or different sense. See Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 346 (Tex.1976). If an insurance contract can be given more than one meaning, it is ambiguous, and the interpretation that most favors coverage will be adopted. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997). An intent to exclude coverage must be expressed in clear and unambiguous language. See State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 (1993).
In the future, we should follow the lead of those courts that have applied the common meaning of manifest and conclude that a disease is manifest when it is apparent, obvious, or plain. See, e.g., Ross v. Western Fidelity Ins. Co., 872 F.2d 665, 669 (5th Cir.1989), clarified on rehearing, 881 F.2d 142 (5th Cir.1989). In Ross, the Fifth Circuit Case interpreted an insuring clause virtually identical to the one in Provident's policy in which the insurer agreed to pay for medical expenses "resulting from sickness, which first manifests itself more than 30 days after the effective date...." Id. at 669. In that case, an infant had been born with respiratory problems and was subjected to a number of diagnostic tests, including cardiac tests. Later, after the effective date of coverage, it *211 was discovered the child had a congenital heart murmur. The court held:
To be manifest, a sickness must be apparent, obvious, or plain. The heart defect here did not manifest itself during the excluded time frame. Despite the presence of symptoms that may have been caused by the heart defect, the heart defect itself was not diagnosed and therefore was not apparent, obvious, or plain.
Ross, 872 F.2d at 669. In our case, Dr. Gutierrez was unable to diagnose Guillermo Castañeda, Jr., after the policy coverage date. No doctor Denise had ever seen before Dr. Canales even suspected HS, and to the contrary, she seemed perfectly healthy.
As one justice has stated:
"It appears quite unfair to hold that when one takes out an insurance policy when one is unaware of any symptoms and has no symptoms manifest to the average person and later when one becomes ill, for the insurance company to refuse to pay because the company can get a medical expert or physician to testify that the insured has had a condition for many years prior to the effective date of the policy, which results in his present sickness or disability, and therefore, under the terms of the policy, the insured is not covered."
Mutual Hosp. Ins. Inc. v. Klapper, 262 Ind. 144, 312 N.E.2d 482, 484 (Ind.1974). Another court has observed that "a medical insurance system that covers only well persons and those sick persons who have not vigilantly monitored their health makes sense only if viewed through the looking glass." Hardester v. Lincoln Nat'l Life Ins. Co., 33 F.3d 330, 339 n. 5 (4th Cir.1994) (Hall, J., dissenting) dissenting opinion adopted on rehearing in banc, 52 F.3d 70 (4th Cir.), cert. denied, 516 U.S. 864, 116 S.Ct. 177, 133 L.Ed.2d 117 (1995).
As noted before, most courts require a distinct condition so that a diagnosis can be made with reasonable accuracy. What is the distinct symptom here? It is clear that Dr. Canales's diagnosis hinged on the fact that Denise Castañeda's maternal uncle has the genetic condition. Yet her uncle's condition is not Denise Castañeda's "distinct symptom or condition." With a pen stroke the Court denies coverage to insureds who, unbeknown to them, suffer genetic or other congenital conditions. In this age of gene-mapping, we are rapidly reaching the point that a genetic condition is diagnosable from birth if enough diagnostic tests are run.
The policy does not state to whom the sickness must manifest itself. There is nothing in the policy to indicate that the word has the more technical meaning of being capable of diagnosis by a medical expert. We need to interpret the term manifest in a way that makes insuring for unknown risks possible, because virtually every latent illness is a "physical condition" which could be diagnosed through sophisticated testing. An insured would have to pay for every sophisticated test in existence to know what the policy actually covers.
A reasonable interpretation is that a condition is covered unless it is at least apparent to a reasonable insured that she is sick. Such an interpretation would effectuate the purposes of the insuring clause. As one court has commented,
[W]hile insurance companies need protection from unscrupulous applicants who would fraudulently attempt to gain coverage for an illness of which they are already aware, such protection need not go so far as to consider a disease to exist at the time of its medical inception. Furthermore, to consider a disease to exist at a time when the victim is blissfully unaware of the medical "seeds" visited upon his body, is to set a trap for the unwary purchaser of health insurance policies.
Mutual Hospital Ins., Inc. v. Klapper, 153 Ind.App. 555, 288 N.E.2d 279, 282 (Ind.App. 1972). While this does not necessarily mean a condition must be diagnosed to be manifested, sometimes latent diseases are not manifest until diagnosis. Certainly, a disease is not manifest when the patient does not even know he or she is sick.
I would hold that a disease has not manifested itself until the insured suffers from distinct symptoms from which a diagnosis can be made with reasonable accuracy, and the symptoms are such that a reasonable insured would seek medical treatment. The *212 evidence shows that Ms. Castañeda was healthy and active in school and sports. Her physician said that she was asymptomatic except for a yellow tint to her skin, the same as her father. It was her maternal uncle who the Castañedas learned had HS. Thus, whether Ms. Castañeda's HS had manifested within the policy period should be a question of fact. The jury's finding that the disease had not manifested should be sustained.
IV
I agree with the Court that it is not bad faith for an insurance company simply to make a mistake and deny a claim for the wrong reason. We so held in Republic Insurance Company v. Stoker, 903 S.W.2d 338, 341 (Tex.1995). However, Stoker does not apply because the evidence of coverage is conflicting, and should be resolved in favor of the verdict.
The Court ignores the ample evidence that Provident violated its duties to Ms. Castañeda. The Stoker exception does not apply because the claim was in fact covered. While policy benefits do not support the entire judgment for actual damages, I agree that the award should not be set aside for the reasons set forth by the court of appeals. 914 S.W.2d at 280-82.
V
In summary, I disagree with the Court's conclusion that the evidence only shows "less than exemplary" claims practices or merely a bona fide coverage dispute. The record is more than adequate to support jury findings that Provident American Insurance Company violated the DTPA and the Texas Insurance Code and breached its duty to deal in good faith. I therefore would affirm the judgment of the court of appeals in all respects.
There is ample evidence from which the jury could conclude that Provident decided to deny the claim from the beginning, and asserted a series of pretextual reasons for not paying the claim. This case has serious implications well beyond the present parties. The Court's opinion may very well eviscerate the bad-faith tort as a viable cause of action in Texas. If the evidence in this case is not good enough to affirm judgment, I do not know what character or quantity of evidence would ever satisfy the Court in this kind of case.
NOTES
[1] The liability issues submitted to the jury are included in Appendix A.
[2] 914 S.W.2d 273, 284.
[3] Id. at 277.
[4] Id. at 280.
[5] Id. at 281-82.
[6] 945 S.W.2d 812, 818-19 (Tex. 1997) (holding that a plaintiff must ask the jury to award attorney's fees in a specific dollar amount in a DTPA case).
[7] See Appendix A, Question 1.
[8] TEX. INS.CODE art. 21.21-2, § 2(b)(4).
[9] See Appendix A, Question 1, subpart J.
[10] See Appendix A, Question 1, subpart G.
[11] Universe Life Ins. Co. v. Giles, 950 S.W.2d 48 (Tex. 1997).
[12] See Appendix A, Question 1.
[13] A breach of the common-law duty of good faith and fair dealing inherent in the dealings between an insurer and its insured must be the proximate, rather than producing, cause of damage. See Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 215 (Tex. 1988); see also Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995) (discussing the difference between proximate and producing cause).
[14] See Appendix A, Question 1.
[15] 866 S.W.2d 597 (Tex.1993).
[16] 873 S.W.2d 373 (Tex.1994).
[17] Id. at 376.
[18] Id.; see also TEX. INS.CODE art. 21.21-2, § 2(b)(4).
[19] The policy provided: "Coverage is not provided for sickness or disorder involving the following unless loss incurred six months after the Policy Date: hernia, varicose veins, hemorrhoids, reproductive organs, appendix, tonsils, adenoids or gallbladder."
[20] The insuring clause, which is the first paragraph of the policy, stated that it provided benefits only for accidental bodily injury and "sickness, which first manifests itself more than thirty (30) days after the effective date of this Policy, hereinafter referred to as such sickness." In the definitions section, the policy defined "[s]ickness" as an "illness or disease of a member of the Family Group which first manifests itself more than 30 days after the Policy date and while the policy is in force." Other provisions stated that coverage extended to services and supplies "necessary for the treatment of the injury or sickness."
[21] 951 S.W.2d 444, 448 (Tex.1997).
[22] 879 S.W.2d 10, 17 (Tex.1994).
[23] 873 S.W.2d at 376-77.
[24] Id. at 377.
[25] See Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 600-01 (Tex.1993).
[26] See also Connolly v. Service Lloyds Ins. Co., 910 S.W.2d 557, 563 (Tex.App.Beaumont 1995, no writ) (holding that the carrier established its good faith as a matter of law when summary judgment evidence demonstrated a bona fide controversy regarding the need for back surgery and the carrier relied on a report that surgery was not necessary) (citing Packer v. Travelers Indem. Co., 881 S.W.2d 172, 176 (Tex. App.Houston [1st Dist.] 1994, no writ)); Ramirez v. Transcontinental Ins. Co., 881 S.W.2d 818, 826 (Tex.App.Houston [14th Dist.] 1994, writ denied) (holding that an insurer had conclusively established a reasonable basis for denying a claim when it relied on an expert's opinion, even though another expert had expressed a conflicting opinion).
[27] State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997).
[28] 988 S.W.2d at 204.
[29] See Dominguez, 873 S.W.2d at 376.
[30] Id.
[31] The jury was asked:
Do you find from a preponderance of the evidence the HEMOLYTIC SPHEROCYTOSIS of Plaintiff, DENISE CASTAÑEDA, first manifested itself prior to July 17, 1991?
You are instructed that under the policy a covered "sickness" is an illness or a disease of a member of the family group which first manifests itself more than thirty (30) days after the policy date.
You are further instructed that "Manifestation" does not necessarily mean the time at which a covered sickness is medically diagnosed.
Answer: "Yes" or "No"
Answer: no
[32] See Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601 (Tex.1993).
[33] See, e.g., Dirgo v. Associated Hosps. Serv., Inc., 210 N.W.2d 647, 650 (Iowa 1973) (holding that condition is manifest when it would be manifest to a person learned in medicine from symptoms or other physical conditions that the illness or disease exists); Bishop v. Capitol Life Ins. Co., 218 Kan. 590, 545 P.2d 1125, 1129 (Kan.1976) (holding that symptoms of heart disease were active or manifest because they were manifest to one learned in medicine prior to the effective date of the policy); Southards v. Central Plains Ins. Co., 201 Kan. 499, 441 P.2d 808, 811, 813-14 (Kan.1968) (equating origination of disease with manifestation and holding that insured's Bright's disease was active and manifest because it was manifest to those learned in medicine before the policy became effective, although insured had no knowledge that he had the disease); Dowdall v. Commercial Travelers Mut. Accident Assoc., 344 Mass. 71, 181 N.E.2d 594, 596 (Mass. 1962) (holding that symptoms of disease were manifest long before issuance of the policy when symptoms first appeared years earlier and physician had reasonable cause to believe the plaintiff had multiple sclerosis even though definitive diagnosis was not made until later); Rosenberg v. North Dakota Hosp. Serv. Assoc., 136 N.W.2d 128, 132 (N.D.1965) (holding that "originates" includes "manifest" and indicating that disease would have been manifest if physicians could have diagnosed it); Richards v. American Sec. Life Ins. Co., 303 P.2d 1110, 1112 (Okla.1956) (equating "originates" with manifests and holding that a cataract may manifest by a distinct symptom or condition from which one learned in medicine could with reasonable accuracy diagnose the specific ailment that thereafter caused the hospital confinement); see generally RHODES, COUCH ON INSURANCE, § 41A:41 (2d rev. ed.1982).
[34] 903 S.W.2d 338, 340 (Tex.1995) (stating that as long as the insurer has a reasonable basis to deny or delay payment of the claim, even if that basis is erroneous, the insurer is not liable for bad faith) (citing Lyons, 866 S.W.2d at 600); see also Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988) (stating that carriers "will not be subject to liability for an erroneous denial of a claim" unless there was no reasonable basis for denial).
[35] 866 S.W.2d at 601.
[36] 748 S.W.2d at 213.
[37] See Lyons, 866 S.W.2d at 601; see also Aranda, 748 S.W.2d at 213-14.
[38] See Stoker, 903 S.W.2d at 340.
[39] Id. at 341.
[40] State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex.1997).
[41] State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42 (Tex.1998).
[42] See Nicolau, 951 S.W.2d at 448-50.
[43] See Simmons, 963 S.W.2d at 45-47.
[44] See Appendix A, Question 1.
[45] TEX. INS.CODE art. 21.21-2, § 2(b)(5).
[46] See Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex.1995).
[47] Id.
[48] Id. at 342, 345 (Spector, J., concurring).
[49] See Appendix A, Question 1, subparts H and I.
[50] See Stoker, 903 S.W.2d at 341.
[51] 974 S.W.2d 51, 53 (Tex.1998) (quoting 5 CUNNINGHAM, CORBIN ON CONTRACTS § 1007 (Supp.1998)).
[52] Id.
[53] 577 S.W.2d 688 (Tex.1979).
[54] Id. at 690-91.
[55] Id. at 694-95 (distinguishing pre-loss representations, which were actionable, from post-loss representations, which were not actionable).
[56] See Act of May 10, 1977, 65th Leg., R.S., ch. 216, § 1, 1977 Tex. Gen. Laws 600, 600, amended by Act of May 19, 1995, 74th Leg., R.S., ch. 414, § 2, 1995 Tex. Gen. Laws 2988, 2989.
[1] See 988 S.W.2d at 200.
[2] See, e.g., Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 740-41 (Tex.1998); National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995).
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FILED
United States Court of Appeals
Tenth Circuit
April 6, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-6235
(D.C. No. 5:09-CR-00374-D-1)
JOSE RUBEN CASTILLO, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, HARTZ, and O’BRIEN, Circuit Judges.
This matter comes before the court on the government’s motion to enforce
the appeal waiver contained in the written plea agreement between Jose Ruben
Castillo and the United States. Mr. Castillo was charged with being a felon in
possession of a semi-automatic pistol, possessing with intent to distribute 10.8
grams of methamphetamine, and using a semi-automatic pistol in furtherance of a
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
drug-trafficking crime. Pursuant to the plea agreement, he pleaded guilty to the
second and third counts. The district court sentenced him to consecutive terms of
eighteen months on count two and sixty months (the statutory mandatory
minimum) on count three. Despite the appeal waiver, Mr. Castillo has filed a
notice of appeal and seeks to challenge his sentence.
Mr. Castillo broadly waived his right to appeal his guilty plea, his sentence,
his restitution, or any other aspect of his conviction in the plea agreement. He
specifically waived the right to appeal the manner in which his sentence was
determined, provided it was either within or below the advisory guideline range
determined by the district court. See Mot. to Enforce, Attach. 1, at 7. The
government seeks to enforce Mr. Castillo’s appeal waiver in accordance with our
decision in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per
curiam). That decision requires us to consider whether the appeal falls within the
scope of the waiver, whether Mr. Castillo knowingly and voluntarily waived his
right to appeal, and whether enforcing the waiver would result in a miscarriage of
justice. Id. at 1325.
In his response to the government’s motion, Mr. Castillo does not dispute
that his appeal falls within the scope of the waiver. He argues, however, that he
did not knowingly and voluntarily wave his appellate rights because his former
attorney pressured him to sign the plea agreement. He makes other allegations
against his former attorney as well, namely that the attorney failed to protest the
-2-
government’s erroneous characterization of him as a gang member and that the
attorney failed to ensure the government returned seized currency to Mr. Castillo
and may even have kept it for himself.
In determining whether a defendant’s waiver of appellate rights was
knowing and voluntary, we look at two things in particular: whether the plea
agreement itself states that the defendant is entering the agreement knowingly and
voluntarily and whether the record demonstrates the district court conducted an
adequate plea colloquy under Federal Rule of Criminal Procedure 11. Hahn,
359 at 1325. Mr. Castillo bears the burden of showing that his waiver was not
knowing and voluntary. Id. at 1329. Paragraph 8 of the plea agreement states that
Mr. Castillo “knowingly and voluntarily waives his right” to “[a]ppeal or
collaterally challenge his guilty plea, sentence and restitution imposed, and any
other aspect of his conviction” and to “[a]ppeal . . . his sentence as imposed by the
Court and the manner in which the sentence is determined, provided the sentence
is within or below the advisory guideline range determined by the Court to apply
to this case,” among other things. Mot. to Enforce, Attach. 1, at 7. And the
transcript of the change of plea hearing demonstrates that the district court
conducted an adequate Rule 11 colloquy.
Among other things, the court advised Mr. Castillo that “as a result of the
plea agreement in this case . . . you are waiving the right to appeal or collaterally
challenge the sentence ultimately imposed by the Court except under limited
-3-
circumstances.” Mot. to Enforce, Attach. 2 at 6. The court also advised him that
“if the Court accepts your plea of guilty, the Court may impose the same
punishment as if you had pleaded not guilty and been convicted by a jury.”
Id. at 8.
The court also questioned Mr. Castillo about the voluntariness of his plea
and about the adequacy of his counsel’s representation:
THE COURT: Sir, are your plea of guilty and the waivers of your rights
made voluntarily and completely of your own free choice?
THE DEFENDANT: Yes, sir.
THE COURT: Are they also made free of any force or threats or pressures
from anyone?
THE DEFENDANT: Yes, sir.
....
THE COURT: . . . Sir, are you pleading guilty of your own free will because
you are, in fact, guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with the services of your attorney?
THE DEFENDANT: Yes, I am.
THE COURT: Do you believe your attorney has properly counseled and
assisted you regarding these charges?
THE DEFENDANT: Yes, sir.
THE COURT: Have you understood all of my questions and the questions of
counsel?
-4-
THE DEFENDANT: Yes, sir.
THE COURT: Is there anything you have not understood or do not
understand about these proceedings today?
THE DEFENDANT: I’ve understood everything, sir.
Id. at 9, 13-14. The district court concluded that Mr. Castillo was competent to
enter the plea, that he did so knowingly and voluntarily, and that there was a
factual basis for his guilty plea. Id. at 14.
In light of the language of the plea agreement he signed and of his answers
during the Rule 11 colloquy, Mr. Castillo has not met his burden to establish his
appeal waiver was not knowing and voluntary. Mr. Castillo’s other allegations
against his former attorney do not affect the enforceability of his appeal waiver.
Ineffectiveness of counsel in negotiating an appeal waiver can make an appeal
waiver invalid. Hahn, 359 F.3d at 1327. But Mr. Castillo has not alleged that his
counsel was ineffective in connection with the appeal waiver itself. And in any
event, he would have to wait to raise such a claim in a motion under 28 U.S.C.
§ 2255. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).
Accordingly, the government’s Motion to Enforce Appeal Waiver is granted
and the appeal is dismissed.
ENTERED FOR THE COURT
PER CURIAM
-5-
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist LONGINO S. DAVIS
United States Army, Appellant
ARMY 20110576
Headquarters, 82d Airborne Division
Gary Brockington and Tara A. Osborn, Military Judges
Colonel Lorianne M. Campanella, Staff Judge Advocate
For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain James P. Curtin, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan (on brief).
25 September 2013
-----------------------------------
SUMMARY DISPOSITION
-----------------------------------
Per Curiam:
A military judge sitting as a general court -martial convicted appellant,
contrary to his pleas, of one specification of attempted wrongful possession of
marijuana with intent to distribute, one specification of conspiracy, two
specifications of wrongfully introducing marijuana onto an installation with intent to
distribute, and one specification of wrongful possession of marijuana with intent to
distribute, in violation of Articles 80, 81, 112a, Uniform Code of Military Justice.
10 U.S.C. 880, 881, 112a (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to reduction to the grade of E -1, confinement for fifteen months, and a
bad-conduct discharge. The convening authority approved the findings and the
sentence.
DAVIS—ARMY 20110576
This case is before this court for review under Article 66, UCMJ. Only one of
the issues briefed by appellant warrants discussion and relief. * We agree with
appellant that the evidence supporting his conviction for Specification 2 of Charge
III (appellant’s second conviction for wrongful introduction of marijuana with intent
to distribute) is factually insufficient. However, we affirm the lesser -included
offense (LIO) of attempted wrongful introduction of marijuana with intent to
distribute. See UCMJ arts. 59(b), 79.
Appellant conspired with Private (PVT) Zavalagamez to obtain marijuana in
California and introduce it onto Fort Bragg, North Carolina. While on leave in
California, PVT Zavalagamez mailed vacuum-sealed marijuana to Specialist (SPC)
Wilson, who lived on Fort Bragg. Private Zavalagamez then traveled back from
California to Fort Bragg. Several days later, appellant and PVT Zavalagamez picked
up the marijuana at SPC Wilson’s on-post quarters. Private Zavalagamez later gave
the marijuana to appellant to distribute.
Later that month, appellant and PVT Zavalagamez arranged for another
package to be mailed to SPC Wilson’s quarters. The police intercepted this package.
Law enforcement personnel then set up a controlled delivery and arrested SPC
Wilson when he accepted that second package. The police subsequently arrested
appellant and PVT Zavalagamez after the two arrived at SPC Wilson’s quarters to
retrieve the second package.
The government’s evidence consisted of testimony from PVT Zavalagamez ,
SPC Wilson, and Mr. R., an expert forensic drug chemist. Private Zavalagamez
testified that he never saw the second package. Specialist Wilson testified that he
saw the second package, but not its contents. Only the forensic chemist testified
about the contents of the second package. However, the military judge sustained
appellant’s objection to Prosecution Exhibit 5 (a chain of custody document for the
second box) and Prosecution Ex hibit 7 (the second box containing marijuana).
The evidence is clear that appellant and PVT Zavalagamez paid $4,000 in
exchange for a second shipment of marijuana. The two also arranged to have that
second package sent to SPC Wilson’s quarters on Fort Bragg and went there once
they believed that the second package had arrived. They intended to distribute the
*
Among the issues personally raised by appellant , pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), is a challenge to the sufficiency of the
evidence in his case. To the extent that this Grostefon issue overlaps with appellate
counsel’s assignments of error, it is addressed and resolved by this court’s decision.
We have considered appellant’s other personal submissions and conclude that they
lack merit.
2
DAVIS—ARMY 20110576
purported marijuana in the second package. As appellant notes, however, the
government never called a law enforcement agent to testify about the chain of
custody or contents of the second package before it reached the government’s expert .
Put another way, it is clear that appellant arranged to introduce a second package
containing marijuana onto Fort Bragg, but the government could not link the box
that arrived at SPC Wilson’s quarters with the box (and its contents) that the
government expert examined.
Accordingly, we hold there is reasonable doubt regarding appellant’s guilt of
Specification 2 of Charge III. As a remedy, appellant urges us to order a sentencing
rehearing. The government, on the other hand, asks us to reassess and affirm the
sentence. Both positions overlook our authority to affirm a LIO of the charged
offense. UCMJ art. 59(b). The statute criminalizing LIOs expressly includes
attempts as a type of LIO. UCMJ art. 79. Despite finding reasonable doubt
regarding the chain of custody of the second box to the lab and also the contents of
that box as determined by testing, we are convinced beyond a reasonable doubt that
appellant attempted to wrongfully introduce some amount of marijuana onto Fort
Bragg with intent to distribute that marijuana. We therefore affirm the LIO of
attempt.
In light of our decision to affirm a LIO, we must consider whether sentence
reassessment without a rehearing is possible, and, if so, whether the sentence must
be reduced. United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986); United States
v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J., concurring). In this case, we
can be “reasonably certain as to the severity of the sentence that would have resulted
in the absence of the error,” Sales, 22 M.J. at 307 n. 3, and, therefore, we will
reassess the sentence at our level.
First, and most importantly, we note that the penalty landscape has not
changed, as the maximum punishment remains unchanged. Additionally, appellant
was sentenced by a military judge, and “as a matter of logic, judges of the Courts of
Criminal Appeals are more likely to be certain of what a military judge alone would
have done than what a panel of members would have done.” Moffeit, 63 M.J. at 43
(Baker, J., concurring). Lastly, we are confident that we have the experience and
familiarity with the remaining offenses to reliably determine the sentence that would
have been imposed by the military judge. Id.
CONCLUSION
On consideration of the entire record, includin g the matters personally
submitted by appellant pursuant to Grostefon, we affirm only so much of the finding
of guilty of Specification 2 of Charge III as provides that appellant, “did, at or near
Fort Bragg, North Carolina, on or about 27 September 2010, attempt to wrongfully
introduce some amount of marijuana onto an installation used by the armed forces or
3
DAVIS—ARMY 20110576
under control of the armed forces, to wit: Fort Bragg, North Carolina, with the intent
to distribute the said controlled substances in violation of Article 79, UCMJ.” The
remaining findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the affirmed LIO noted, the entire record, and in accordance with the principles of
United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63
M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
concurring opinion in Moffeit, the approved sentence is AFFIRMED. All rights,
privileges, and property, of which appellant has been deprived by virtue of t hat
portion of the findings set aside by this decision, are ordered restored.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
4
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"pile_set_name": "FreeLaw"
} |
981 F.2d 1450
142 L.R.R.M. (BNA) 2398, 124 Lab.Cas. P 10,595,28 Collier Bankr.Cas.2d 538
In the Matter of CONTINENTAL AIRLINES, et al., Debtors.Joseph E. O'NEILL, et al., and James Stephens, et al., Appellants,v.CONTINENTAL AIRLINES, INC., Appellee.
No. 89-2943.
United States Court of Appeals,Fifth Circuit.
Jan. 19, 1993.
Janet Napolitano, Marty Harper, Randolph J. Haines, Allen R. Clarke, Lewis & Roca, Phoenix, AZ, and William Schweinle, Jr. and Reginald H. Wood, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Houston, TX, for O'Neill, et al.
James R. O'Donnell, Jeannette M. McAllister and Leon V. Komkov, Butler & Binion, Houston, TX, for Stephens, et al.
Charles L. Warren and David Callet, Akin, Gump, Hauer & Feld, John J. Gallagher, Paul, Hastings, Janofsky & Walker, DC, for Continental Airlines, Inc.
Appeals from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, BROWN and JOHNSON, Circuit Judges.
JOHN R. BROWN, Circuit Judge:
1
This case arises, like so many others before it, out of the bankruptcy proceedings of Continental Airlines, Inc. (Continental). However, unlike many of those other cases, we reach the merits of this case over two years after the parties argued the case before this court. These two groups of pilots brought their individual furlough pay claims after Continental Airlines filed petitions under Chapter 11 of the United States Bankruptcy Code on September 24, 1983 in the United States Bankruptcy Court for the Southern District of Texas. On June 27, 1986, Bankruptcy Judge T. Glover Roberts signed an order granting Continental's motion for summary judgment, disallowing the pilots' furlough pay claims and estimating the claims at zero. On August 4, 1989, the district court affirmed, and the pilots appealed. In the meantime, Continental filed a second Chapter 11 bankruptcy petition on December 3, 1990 in the United States Bankruptcy Court for the District of Delaware, which stayed all judicial actions against the airline pursuant to 11 U.S.C. § 362(a). We issued an opinion on March 15, 1991 holding that the pilots' appeal was stayed in light of the 1990 bankruptcy proceedings. Matter of Continental Airlines, 928 F.2d 127 (5th Cir.1991). On August 4, 1992, the Delaware bankruptcy court issued an order granting the parties' joint motion for limited relief from the stay, in order that we might render our decision in this case.1
2
The pilots appeal 1) the district court's holding that a furlough had not occurred on September 24-27, 1983, 2) the district court's holding that a post-filing rejection of the collective bargaining agreement relieved Continental of furlough pay obligations, 3) the district court's estimation of the furlough pay claims at zero, and 4) the district court's refusal to require recusal of the bankruptcy judge and to vacate the bankruptcy judge's decision. We hold that on the construction of the collective bargaining agreement between the parties, a furlough of the pilots occurred on September 24-27, 1983, and therefore, we reverse the bankruptcy court's order granting summary judgment in favor of Continental. Because no genuine issues of material fact exist and the pilots are entitled to judgment as a matter of law, this is one of those rare cases in which granting summary judgment in favor of Continental was improper, and we grant summary judgment in favor of the pilots. Additionally, we hold that Continental's rejection, with the approval of the bankruptcy court, of the collective bargaining agreement between the parties did not serve to relieve Continental of its obligations under the agreement. Finally, we hold that Judge Roberts' failure to stand recused constituted a violation of 28 U.S.C. § 455(a), and we therefore remand the portion of the bankruptcy court's order estimating the pilots' claims at zero value to the bankruptcy court for calculation of the pilots' claims by a new bankruptcy judge.
The Facts
3
On September 24, 1983, the president of Continental Airlines sent a memorandum to all employees announcing that the company would be seeking protection from creditors under the Chapter 11 reorganization provisions of the United States Bankruptcy Code. See 11 U.S.C. §§ 1101-1174. The memorandum stated that Continental would be reducing the size of its operations and would therefore be required to furlough many of the company's employees.2 The furloughs became effective one and one half hours later, at 5:00 p.m., when Continental filed its Chapter 11 petition. Continental suspended all domestic passenger service and a portion of its international service until September 27, 1983, when the company resumed a limited portion of its domestic operations using substantially fewer pilots than it had employed before filing for bankruptcy. On October 1, 1983, the ALPA commenced a strike against Continental.
4
A number of Continental pilots filed individual claims for furlough pay pursuant to the collective bargaining agreement between Continental and ALPA, commonly referred to as the "Red Book." The pilots claimed that they were entitled to furlough allowances totalling $32.6 million as a result of the three-day shutdown. The Stephens Group and the O'Neill group together represent 482 of the 1069 pilots who filed claims. The two groups claim that they collectively are entitled to $1.5 million in furlough pay.
5
Continental moved for summary judgment disallowing the furlough claims and estimating the claims at zero value. The two groups of pilots filed oppositions to which Continental replied. The bankruptcy court granted Continental's motion for summary judgment and estimated the pilots' claims at zero. The district court affirmed the bankruptcy court's order. The pilots appeal.
On Furlough
6
The memorandum sent to all employees on September 24, 1983 stated that the required employee furloughs would apply to specific personnel, including "1) management, clerical and maintenance employees ... and 2) all personnel at stations and reservations offices to be closed indefinitely." The memorandum went on to state that "[p]ilots, flight attendants, agents, clerical and reservations personnel located or based at the 'open cities' [would] be subject to emergency work rules established by the Company ..."
7
Continental, relying in part on the language of the September 24 memorandum, argues that the pilots were not put on furlough during the three-day shutdown. Continental contends that other employees were furloughed, but that the pilots were subject to emergency work rules, which was evidenced by the fact that when Continental resumed reduced domestic operations on September 27, Continental officials began calling pilots on the phone to ask them to return to work.
8
The pilots claim that despite the language in the September 24 memorandum, Continental's three-day suspension of service constituted a furlough for which they are entitled to furlough allowance under the terms of the Red Book. Section 23 of the Red Book covers pilot furloughs. Part 3 contains furlough rules and Part 4 provides for furlough pay according to the pilot's period of time in active service. The Red Book, however, does not define "furlough."
9
Both the pilots and Continental argue that whether the pilots were placed on furlough on September 24, 1983 is a matter of contract interpretation. The pilots argue that they were placed on furlough as that term was contemplated in drafting the furlough provisions of the Red Book. Continental argues that the furlough provisions of Section 23 are not self-effectuating, pointing to other provisions in the Red Book which Continental argues belie the pilots' claim that the furlough provisions of the Red Book are applicable to the three-day shutdown. Continental contends that Section 4 of the Red Book, containing a minimum flight pay guarantee for pilots, Section 25, detailing flight rescheduling, and Section 3, Part 6, regarding trip cancellation, are the provisions applicable to the three-day shutdown.
10
The bankruptcy court found that the pilots were not furloughed on September 24 as that term is used in the Red Book. In Re Continental Airlines Corp., 64 B.R. 882, 887 (Bankr.S.D.Tex.1986). The court pointed to the specific clauses in the collective bargaining agreement providing for short-term cancellation of flights. The court also stated that the agreement contemplates a partial reduction in force at specific bases triggering the furlough provisions, not a total shutdown. The court examined the reasons behind the three-day shutdown, and concluded that application of the furlough provisions in this case would lead to an absurd result.
11
The district court affirmed the bankruptcy court's finding that no furlough had taken place. The court stated that nothing in the September 24 memorandum indicated that Continental intended to furlough the pilots. The court also found that certain sections of the Red Book expressly contemplated temporary cancellation of flights. In response to the pilots' argument that the shutdown was not temporary, the court pointed to Continental's actions in telephoning the pilots and requesting them to come back to work as indicating that Continental attempted to do everything possible to build back its operations. The district court asserted that the pilots' strike prevented Continental from expanding its services after the three-day shutdown. Because the court concluded that the flight cancellations were temporary, the court held that Section 3, Part 6 and Section 25, Part 2 of the Red Book applied. The court stated that these provisions provided a separate contractual means of dealing with temporary cancellation of flights, belying the pilots' contention that the three-day cancellation constituted a furlough. The court concluded that requiring Continental to pay the furlough allowance would result in a windfall for the pilots.
12
The fact remains that as of 5:00 p.m. on September 24, 1983, all of Continental's domestic operations were completely shut down, with only a limited number of international routes continuing to operate. As of 5:00 p.m. on September 24, there was no work for Continental's union or nonunion employees involved in the company's domestic operations, including the pilots. There was no work for three days, until September 27 when Continental resumed operations utilizing a greatly reduced number of employees. Whether the three-day period during which Continental made no work available constituted a furlough of the pilots must be determined by an examination of the facts and the terms contained in the Red Book, which is the official agreement entered into between the parties, not by reference to an informational memorandum sent to all employees that simply announced a work stoppage.
13
We review de novo the district court's construction of the collective bargaining agreement between the parties, or Red Book, which is a question of law. Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1279 (3d Cir.1991); Santa Monica Culinary Welfare Fund v. Miramar Hotel Corp., 920 F.2d 1491, 1493 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2855, 115 L.Ed.2d 1023 (1991); DeMarco v. C & L Masonry, Inc., 891 F.2d 1236, 1238-39 (6th Cir.1989). We hold that the district court erred in finding that no furlough of the pilots occurred. Based on the construction of the Red Book, we hold that the three-day period during which the pilots had no work constituted a furlough of the pilots.
14
Continental relies on certain sections of the Red Book to give meaning to the term "furlough"--to define what furlough is not. In oral argument, Continental likened the domestic operations shutdown to "a snowstorm in Denver", and the company argues that the mere presence of provisions covering flight cancellations due to bad weather, holidays, schedule changes or for other reasons indicates that the three-day shutdown was not a furlough within the meaning of the Red Book. We find that the provisions of the Red Book cited by Continental regarding flight cancellations fail to lend meaning to the term "furlough" as that term is used in Section 23 of the Red Book.
15
a. Section 3, Part 6 and Section 25, Part 2: Trip Cancellation
16
Continental first cites Section 3, Part 6 of the Red Book. Part 6 is entitled "Pay for Equipment Substitutions and/or Trip Cancellations", and covers trip cancellations due to holidays, schedule changes, accommodation of extra sections or charters, or weather or mechanical reasons.3 The company then cites Section 25, Part 2, Paragraph J, which covers instances "when a regular pilot loses flying time from his trip pattern because of ... cancellation, except as provided for in Section 3, Part 6, Paragraph B ...", and Paragraph K, which provides a remedy for a pilot "when [he] has commenced a trip series and loses a portion of that series through no fault of his own...."4 Significantly, the remedies provided for pilots in the circumstances described in both Paragraph J and Paragraph K involve picking up other flights from "open time."
17
Continental argues that both of these provisions together show that the Red Book "plainly did not contemplate that a temporary cancellation of flights would constitute a furlough." These provisions plainly do not indicate anything of the kind. Section 3, Part 6 and Section 25, Part 2 provide for situations in which flights have been cancelled for a specific reason and provide a specific remedy when flights are running otherwise as normal. As for the general language in Section 25, Part 2, Paragraph J(1) regarding cancellations other than those provided for in Section 3, Part 6, the three-day shutdown hardly can be encompassed by the situation in Paragraph J(1), the remedy for which was not only unavailable, but meaningless during a three-day period when all of Continental's domestic operations had ceased.
18
Furthermore, the application of Section 23 of the Red Book to the three-day shutdown of operations does not turn on whether the shutdown was temporary or permanent. Merely because the shutdown lasted only three days does not invoke automatic application of the sections of the Red Book regarding temporary cancellations. It is the nature of the cancellation, not its duration alone, that determines whether specific provisions of the Red Book apply. Neither does the temporary nature of the shutdown indicate that the provisions cited above present an alternative to the furlough pay provisions in Section 23. If a temporary shutdown presented Continental with a choice as to whether to use the temporary cancellation provisions (although, as stated above, these provisions provide no remedy in the case of a total shutdown) or the furlough allowance provisions of Section 23, effectively there would be no choice; classifying the three-day shutdown as a temporary cancellation would preclude furlough payments to the pilots.
19
Because we hold that the application of the Section 23 furlough provisions does not turn on the temporary nature of the shutdown, we need not address the pilots' arguments regarding the long-term impact of the shutdown on their jobs or Continental's assertions that the availability of work after the shutdown was prevented only by the pilots' strike. Whether employment was available after the shutdown, albeit on different terms, is irrelevant; the fact remains that no work was available for three days, and the three-day shutdown constituted a furlough.
20
b. Section 4: Minimum Pay Guarantee
21
Continental also points to the minimum flight pay guarantee contained in Section 4 of the Red Book in its effort to persuade this court that the three-day shutdown was not a furlough. Section 4 provides that "each regular pilot shall receive a minimum monthly guarantee consisting of 86% of the monthly maximum."5 Unlike the sections of the Red Book regarding temporary cancellations of flights, the minimum pay guarantee does not hinge upon the availability of regularly scheduled flights, and Section 4 does not expressly contemplate a normal operating situation. The section merely guarantees pilots a minimum amount of pay per month. The Section 4 guarantee does not indicate, however, that the minimum pay guarantee is an alternative to the furlough provisions of Section 23 as urged by Continental. Following the same reasoning set forth above regarding the temporary cancellation provisions, a choice between the furlough provisions and the minimum pay guarantee in the event of a temporary, total shutdown would render the furlough provisions of Section 23 a nullity.c. Section 23: Furlough
22
Section 23 of the Red Book is entitled "Reduction in Force, Furlough and Recall." Part 1 covers reductions in force, Part 2 deals with closings of pilot bases, Part 3 contains furlough rules and Part 4 sets out a furlough pay schedule.6 The only argument advanced by Continental as to why Section 23 does not apply to the situation at hand is based on the bankruptcy court's finding that the Red Book's furlough scheme "would be impossible to administer in the case of a total cessation of Company operations." In Re Continental Airlines Corp., 64 B.R. 882, 888 (Bankr.S.D.Tex.1986). The bankruptcy court was referring to the "elaborate and comprehensive scheme to handle partial layoffs" or "daisy-chain" procedure set out in Part 1.D. of Section 23 dealing with reductions in force. Under this scheme, vacancies resulting from reductions in force are filled using a system-wide bidding process and through displacement of junior pilots by senior pilots. The bankruptcy court reasoned that because such a "daisy chain" procedure could not be used in a total shutdown, Section 23 must contemplate only partial shutdowns, and thus only a partial shutdown may qualify as a "furlough."
23
We find that the "daisy-chain" procedure was not necessary for a furlough under the terms of the Red Book, and therefore the application of Section 23 does not turn on whether the shutdown was partial or total. The bankruptcy court was correct that the daisy chain procedure could not have been implemented during a total shutdown of operations. However, the daisy chain procedure is described in part of Section 23 dealing with reductions in force; Part 1 does not mention furloughs. Furloughs are dealt with separately in Parts 3 and 4 of Section 23. Furthermore, even if the procedure in Part 1 does apply to furloughs, Part 1 does not contain any mandatory language regarding the implementation of the procedure in a furlough situation. Similarly, Parts 3 and 4 do not even refer to the daisy chain procedure, much less make the procedure a mandatory requirement in the event of a pilot furlough. We therefore conclude that Continental's failure to invoke the daisy chain procedure described in Section 23, Part 1, does not indicate that what took place on September 24, 1983 was not a pilot furlough.
24
Section 23, Part 4, which sets out a furlough pay schedule, provides for furlough pay ranging from 1/2 month's pay for pilots who have actively served for at least one year to 5 months pay for pilots who have actively served for 10 or more years. Continental therefore contends that to hold Continental responsible for furlough pay would provide a windfall to the pilots. The bankruptcy court agreed, stating that to require Continental to pay these amounts for a three-day shutdown would lead to "absurd results ... virtually guaranteeing a windfall for the entire pilot and flight attendant workforce." 64 B.R. at 888.
25
The furlough pay scale contained in Section 23, Part 4 of the Red Book is part of the negotiated contract between the parties. The furlough payments, scaled according to the pilots' length of service, are due regardless of the length of the furlough. The furlough payments are not considered part of wages or compensation; these aspects of the pilots' employment are covered in separate sections of the contract. The furlough provisions thus do not protect the pilots from loss of pay; instead, they serve as a disincentive for Continental to impose arbitrary, unexpected shutdowns. As the pilots point out, that the furlough payments serve as a penalty on Continental will not always render an absurd result. In the event of an extended furlough, the furlough pay scale could work to Continental's advantage. In short, Continental cannot manipulate the provision which Continental negotiated as part of the collective bargaining agreement to work to its advantage in the situation at hand by using the absence of any language regarding the length of the furlough against the pilots. Continental may not use the short-term nature of the shutdown as a shield to protect the company from payment of amounts justly due its employees.
26
Because our holding that the September 24-27 shutdown constituted a furlough is based solely on the construction of the Red Book, we need not address the pilots' arguments regarding the commonly understood meaning of furlough7 or the Department of Labor's opinion regarding Continental's shutdown.8 The Red Book comprises the sole agreement between the parties, and no reference to sources outside the Red Book is necessary in this case.
Summary Judgment
27
In evaluating a summary judgment motion, the reviewing court applies the same standard that governs the district court. Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir.1990); Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989). Summary judgment is proper when, viewing all the evidence in light most favorable to the non-movant, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Waltman, 875 F.2d at 474.
28
This court has the power to render summary judgment for a nonmoving party if we find that the moving party is not entitled to summary judgment and that no factual dispute exists and the nonmoving party is entitled to summary judgment as a matter of law. 6 James W. Moore, et al., Moore's Federal Practice, p 56.12 at 161-65 (2d ed. 1991); Jensen v. Snellings, 841 F.2d 600, 618 (5th Cir.1988); E.C. Ernst, Inc. v. General Motors Corp., 537 F.2d 105, 109 (5th Cir.1976); Black Warrior Elec. Membership Corp. v. Mississippi Power Co., 413 F.2d 1221, 1226 (5th Cir.1969). Because we hold that on the construction of the Red Book, Continental's three-day shutdown constituted a furlough of the pilots, we reverse the bankruptcy court's order granting summary judgment in favor of Continental. Moreover, we find that no factual dispute as to whether a furlough occurred exists, and that the pilots are entitled to summary judgment as a matter of law.
Facing (Contract) Rejection
29
Immediately after Continental filed its bankruptcy petition on September 24, 1983, the company filed a motion in bankruptcy court to reject its labor contracts with ALPA and the Union of Flight Attendants (UFA) pursuant to 11 U.S.C. § 365. The bankruptcy court approved Continental's rejection of its labor contracts. ALPA and UFA then filed proofs of claim for contract rejection damages, and the bankruptcy court granted summary judgment in favor of Continental, disallowing all contract rejection claims. This court, in In re Continental Airlines Corp., 901 F.2d 1259 (5th Cir.1990), cert. denied, --- U.S. ----, 113 S.Ct. 87, 121 L.Ed.2d 50 (1992), affirmed the bankruptcy court's order granting partial summary judgment in favor of Continental and disallowing contract rejection damages for time periods when the employees were on strike, but vacated the bankruptcy court's order disallowing all contract rejection claims.
30
Under Bankruptcy Code § 365(g), "the rejection of an executory contract ... of the debtor constitutes a breach of [the] contract ..." 11 U.S.C. § 365(g); see also Matter of Brady, Texas, Mun. Gas Corp., 936 F.2d 212, 214 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 657, 116 L.Ed.2d 748 (1991). Section 365(g)(1) goes on to state that if the contract has not been assumed under § 365 or under a plan confirmed under 11 U.S.C. chapters 9, 11 or 13, the breach is deemed to take place "immediately before the date of the filing of the petition." 11 U.S.C. § 365(g)(1) (emphasis added). In its order approving Continental's rejection of the Red Book, the bankruptcy court ordered the contract rejection effective as of the date of the bankruptcy filing. However, this court noted in its decision cited above that under 11 U.S.C. § 365(g)(1), when a contract is rejected pursuant to § 365, the agreement is deemed breached the day before the Chapter 11 petition was filed. In re Continental Airlines Corp., 901 F.2d at 1264.
31
In the instant action, the district court held that Continental's rejection of the collective bargaining agreement between the parties removed any possible basis for the pilots' furlough claims. Continental argues on appeal that because the collective bargaining agreement was deemed breached as of September 23, 1983, the furlough provisions contained therein no longer were in effect on September 24, when the pilots contend Continental placed them on furlough. Alternatively, Continental argues that the pilots' furlough pay claims are subsets of their claims for contract damages. The pilots contend that precisely when the breach was deemed to occur is irrelevant, because the purpose of § 365(g) is to ensure that the creditor with a rejection claim has at least a prepetition claim allowable in bankruptcy, not to relieve the debtor of any contractual liability to the creditor that has accrued under the contract. They also argue that contract rejection damages compensate the pilots for the loss of contract rights, such as seniority and recall rights and rights to wages and union representation, and not for the three-day shutdown during which no work was available.
32
Significantly, § 365(g)(1) speaks only in terms of "breach." The statute does not invalidate the contract, or treat the contract as if it did not exist. To assert that a contract effectively does not exist as of the date of rejection is inconsistent with deeming the same contract breached. Furthermore, a party aggrieved by contract rejection may assert a claim for damages. 11 U.S.C. § 502(g); Brady, 936 F.2d at 214.9 Contract rejection damages are based upon what an employee would have made under the rejected contract. See In Re Continental Airlines Corp., 901 F.2d at 1265.10 Thus inconsistency again arises in the notion that damages may be awarded on the basis of the rejected contract, the provisions of which, according to Continental, are no longer in effect as of the date of rejection.
33
Continental cites NLRB v. Bildisco & Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984), in support of its arguments regarding the purpose and scope of § 365(g)(1). In Bildisco, the Court stated that "While the Board insists that § 365(g)(1) deals only with priorities of payment, the implications from the decided cases are that the relation back of contract rejection to the filing of the petition in bankruptcy involves more than just priority of claims." 465 U.S. at 531, 104 S.Ct. at 1198-1199. However, we think that Continental misreads this statement to say that § 365(g)(1), in addition to dealing with priority of claims, deals with the continued existence of the terms of the contract. The cases cited by the Court in support of its statement above do not support Continental's proposition that rejection of the Red Book rendered the agreement ineffective, thereby relieving Continental of any liability under the agreement. See cases cited 465 U.S. at 531, n. 13, 104 S.Ct. at 1199, n. 13. Instead, the Court appears to be referring to the contract damages available to a creditor when a collective bargaining agreement is rejected pursuant to § 365(g)(1), and not to any lessened obligations of the debtor resulting from that rejection. Section 365(g)(1) indeed involves more than priority of claims. As we have explained above, however, it is difficult to reconcile a holding that damages are due when a collective bargaining agreement is rejected and an argument that that agreement at the same time does not effectively exist. An agreement cannot "exist" for one purpose yet take on a "nonexistent" quality which works to the advantage of one party or the other.
34
In In re Modern Textile, Inc., 900 F.2d 1184 (8th Cir.1990), the Eighth Circuit addressed the argument that rejection of a lease under 11 U.S.C. § 365 terminated the debtor's obligations on the lease. The court cited the language of 11 U.S.C. §§ 365, 365(g)(1) and 502(g) in support of its conclusion that "the trustee's rejection of the lease operate[d] as a breach of an existing and continuing legal obligation of the debtor, not as a discharge or extinction of the obligation itself." Modern Textile, 900 F.2d at 1191. Similarly, Continental's rejection of the Red Book did not extinguish its obligations under the furlough rules contained in the agreement or render the furlough rules inapplicable as of the date of rejection. We hold that the district court erred in holding that "the rejection of [the Red Book] removes any possible basis for the pilots' claims...."
35
The House and Senate reports regarding § 365(g) state that the purpose of that section is to "treat rejection claims as prepetition claims." HR Rep. No. 595, 95th Cong., 1st Sess. 349 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 60 (1978). In the instant case, the pilots' claims for contract rejection damages were properly treated as prepetition claims allowable in bankruptcy in accordance with the purpose of § 365(g) stated above. However, the award of contract rejection damages to the pilots who did not strike in no way precludes the pilots from making furlough pay claims pursuant to Section 23 of the Red Book. The claims for contract rejection damages and the furlough pay claims are two distinct and separate sets of claims. This court previously has ruled on the contract rejection damages issue, and we need not revisit that issue here. We agree with the pilots that they may maintain both actions and that the furlough claims must be examined independently of any contract rejection issues previously raised.
36
We believe that the inconsistency demonstrated in the conclusions of the bankruptcy court and this court as to the precise day on which the contract is deemed breached is immaterial in light of our holding that the rejection of the Red Book did not relieve Continental of its furlough pay obligations arising from the three-day shutdown.
Estimation and Recusal
37
The pilots appeal the bankruptcy court's estimation of their furlough pay claims at zero. Bankruptcy Code § 502(c) provides as follows:
38
There shall be estimated for purpose of allowance under this section--
39
(a) any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case; or
40
(b) any right to payment arising from a right to an equitable remedy for breach of performance.
41
11 U.S.C. § 502(c). The bankruptcy court, based on its conclusion that the pilots' claims ultimately were without merit, found that the claims necessarily must be estimated at zero pursuant to § 502(c). In Re Continental Airlines, 64 B.R. at 890. The bankruptcy court noted that "liquidation of [the] furlough claims through arbitration would unduly delay [Continental's] reorganization." Id. at 887. The district court affirmed the zero valuation of the claims, stating that in light of the "enormous task" which faced the bankruptcy court, the § 502(c) estimation process was an appropriate means by which to facilitate the confirmation of Continental's reorganization plan in the event summary judgment on its motions was denied. The district court asserted that liquidation of the pilots' furlough pay claims could not have been accomplished expeditiously in light of the large number of individual claims filed, and that the bankruptcy court avoided "undue delay in the administration of this case" by utilizing the § 502(c) estimation process.
42
In order for the estimation process of § 502(c) to apply, a claim must be contingent or unliquidated and fixing the claim must entail undue delay in the administration of justice. The pilots argue that the bankruptcy court and the district court failed to establish these prerequisites for utilization of the estimation process, and that even if the requirements had been met, the bankruptcy court failed to properly estimate the claims, using estimation as a vehicle for granting Continental's summary judgment motion.
43
In Matter of Ford, 967 F.2d 1047 (5th Cir.1992), this court observed that Bankruptcy Code § 502(c)(1) serves two purposes: 1) the section is designed to avoid the need to await the resolution of outside lawsuits to determine issues of liability or amount owed by means of anticipating and estimating the likely outcome of these actions, and 2) the section is designed to promote a fair distribution to creditors through a realistic assessment of uncertain claims. Id. at 1053. However, in cases where a claim is neither contingent nor unliquidated, estimation is "simply inappropriate." Id.
44
A bankruptcy court's estimation of the value of an unliquidated claim, the liquidation of which would unduly delay the proceedings, may be disturbed on appellate review only in the event of an abuse of discretion. Matter of Brints Cotton Mktg., Inc., 737 F.2d 1338, 1341 (5th Cir.1984). Because we find, however, that Judge Roberts should have stood recused from the case, and, for reasons set forth below, that his failure to stand recused pursuant to 28 U.S.C. § 455(a) does not constitute harmless error with regard to his ruling on the estimation of the pilots' claims, we vacate the portion of the June 27 order estimating the pilots' claims at zero and remand the issue to the bankruptcy court for determination by a new bankruptcy judge.
45
Twenty-eight U.S.C. § 455(a) states that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Id. The pilots argue that Judge Roberts should have stood recused from the case because shortly after issuing the order granting Continental's motion for summary judgment, Judge Roberts accepted an offer for partnership in the law firm representing Continental. The pilots assert that Judge Roberts' actions in connection with the law firm and in publicly praising Continental's president created an appearance of impropriety, and that Judge Roberts' failure to recuse himself requires the reversal of the bankruptcy court's order granting summary judgment.
46
This court addressed the issue of Judge Roberts' failure to stand recused with regard to his summary judgment order disallowing the pilots' and flight attendants' contract rejection claims in In re Continental Airlines Corp., 901 F.2d 1259 (5th Cir.1990). The court noted that recusal may be mandated even though no actual partiality exists, Hall v. Small Business Admin., 695 F.2d 175, 178 (5th Cir.1983), and that the standard for recusal is an objective one: whether a "reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality." 901 F.2d at 1262 (quoting Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 800 (5th Cir.1986), aff'd, 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). The panel discussed the appearances of the situation, concluding that
47
when an offer of employment was received the day after [Judge Roberts'] approval of $700,000 in legal fees to the firm making the offer, Judge Roberts was "required to take the steps necessary to maintain public confidence in the judiciary." In the circumstances of this case Judge Roberts should either have rejected the offer outright, or, if he seriously desired to consider accepting the offer, stood recused and vacated the rulings made shortly before the offer was made. Although we are confident that Judge Roberts committed no substantive impropriety in his handling of the motions in this case, we nevertheless conclude that recusal was mandated by the appearances of the situation which we have described.
48
901 F.2d at 1262-63 (quoting Liljeberg, 486 U.S. at 861, 108 S.Ct. at 2202-03, 100 L.Ed.2d at 873). This court went on to hold, however, that the § 455(a) violation constituted harmless error. Id. at 1263. The panel carefully considered three factors in determining whether reversal was mandated: i) the risk of injustice to the parties in this particular case; ii) the risk that the denial of relief will produce injustice in other cases; and iii) the risk of undermining the public's confidence in the judicial process. Id.
49
With respect to the first factor, the court concluded that "the risk of injustice to the parties in allowing a summary judgment ruling to stand is usually slight" because summary judgment rulings are subject to de novo review, with the reviewing court utilizing criteria identical to that used by the court below. Id. The panel stated that "[i]n cases where we would otherwise affirm such a ruling, little would be gained by vacating and remanding with instructions that it be essentially reinstated." Id.
50
The court concluded with regard to the second factor that its failure to vacate would not be likely to produce injustice in other cases, but would serve as a caution to other judges contemplating private employment following retirement. Finally, the court concluded that its ruling that Judge Roberts' actions violated § 455(a) should serve to restore some of any public confidence lost as a result of the violation, and therefore, that the violation constituted harmless error.
51
In considering the issue of Judge Roberts' recusal in the instant case, we apply the same standard and carefully consider the same factors as did this court in its opinion discussed above. Using the same standard in determining whether a § 455(a) violation has taken place, and applying that standard to the same set of circumstances described in this court's previous opinion, we find that Judge Roberts violated 28 U.S.C. § 455(a) in his failure to stand recused from this case.
52
Similarly, we consider the same set of factors in determining whether the § 455(a) violation in this case constitutes harmless error. The only difference between the two cases arises in the consideration of the first factor: the risk of injustice to the parties in this particular case. In In Re Continental Airlines, this court affirmed the bankruptcy court's order granting summary judgment, and asserted that nothing would be gained by vacating and remanding the case because of the § 455(a) violation. In this case, after reviewing the bankruptcy court's order de novo, we reverse the bankruptcy court's order and grant summary judgment in favor of the pilots; similarly, nothing would be gained by vacating and remanding this case when we have utilized the same criteria as the courts below in ruling on the summary judgment issue.
53
With regard to the second and third factors, we adopt the reasoning of this court in In Re Continental Airlines: the risk that the denial of relief with regard to the summary judgment issue will produce injustice in other cases is slight, and the risk of undermining the public's confidence in the judicial process is decreased by our ruling that a § 455(a) violation did indeed occur in this case and our plenary review and reversal of the bankruptcy court's order granting summary judgment. Accordingly, we hold that the violation of 28 U.S.C. § 455(a) constitutes harmless error with regard to the portion of the bankruptcy court's order granting summary judgment in favor of Continental.
54
The standard of review which a reviewing court must utilize in ruling on a bankruptcy court's estimation of the value of an unliquidated claim, that is, whether the bankruptcy court's estimation constituted an abuse of discretion, demands a different result when considering the issue of whether a § 455(a) violation constitutes harmless error. The risk of injustice to the parties is much greater when a court lacks broad powers of review. In this instance, if we do not vacate the bankruptcy court's order estimating the pilots' claims at zero and remand the estimation issue to the district court, the parties may remain subject to an order entered by a judge who has violated 28 U.S.C. § 455(a), yet has not abused his discretion in entering the order.
55
Additionally, the risk of undermining the public's confidence in the judicial process also is greater in this instance than the risk posed when dealing with summary judgment review. We are concerned with more than appearances when dealing with a discretionary ruling of a lower court; we are concerned with parties receiving fair treatment of their claims and maintaining the public's confidence and trust that should a violation of § 455(a) occur, the welfare of the parties will take priority over convenience or ease of disposing of the parties' claims.
56
The risk that the denial of relief will produce injustice in other cases, however, is not great should we deny relief on the bankruptcy court's estimation order; by finding that a § 455(a) violation occurred, we caution other judges, and because Continental's plan of reorganization is complete, injustice to other Continental creditors resulting from any delay is minimal. However, we find that the increased risks of injustice to the parties and of undermining the public's confidence in the judicial process far outweigh any decrease in the risk of injustice to other parties in denying relief from the bankruptcy court's estimation order. Accordingly, we hold that the § 455(a) violation did not constitute harmless error with regard to the portion of the bankruptcy court's order estimating the pilots' claims at zero, and therefore we vacate such portion of the bankruptcy court's order and remand the issue to the bankruptcy court for determination by a new bankruptcy judge.
Conclusion
57
We reverse the bankruptcy court's order granting summary judgment in favor of Continental, and because we find that there is no genuine issue as to any material fact and that the pilots are entitled to judgment as a matter of law, we grant summary judgment in favor of the pilots. We vacate the portion of the bankruptcy court's order estimating the pilots' furlough claims at zero, and remand the issue to the bankruptcy court for calculation of the amount of the pilots' claims by a new bankruptcy judge.
58
REVERSED and REMANDED for calculation of claims.
1
The United States Bankruptcy Court for the District of Delaware, Judge Helen S. Balick, entered the following order: "It is hereby ordered this 4th day of August, 1992, that the Joint Motion of Continental Airlines, Inc. and O'Neill Group For Limited Relief From Stay is granted." O'Neill v. Continental Airlines, No. 90-932 (Bankr.D.Del. Aug. 4, 1992)
In their Joint Motion for Limited Relief from Automatic Stay, the parties requested only that the bankruptcy court lift the stay to permit this court to render its decision in the pending appeal. The parties emphasized that the limited stay relief would allow no further action by the parties, and that the parties would remain under the control and guidance of the bankruptcy court regardless of this court's decision.
2
The memorandum stated as follows:
Because of the contemplated initial reduction in the size of our operations, we will be required to furlough many of our employees prior to our filing for reorganization. Such furloughs will be made without prejudice to our rights as a debtor-in-possession. These furloughs are effective as of 5:00 p.m. (C.D.T.) September 24, 1983. The furloughs apply to (1) management, clerical and maintenance employees (unless specifically notified that they are being retained), and (2) all personnel at stations and reservations offices to be closed indefinitely. Pilots, flight attendants, agents, clerical and reservations personnel located or based at the "open cities" (as shown on Attachment A) will be subject to emergency work rules established by the Company to provide for the wages, hours and working conditions for these employees. These emergency work rules have been sent to all "open cities" for posting and distribution.
Record, Vol. 3 at 362-63.
3
Section 3, Part 6 provides in pertinent part:
Part 6--Pay for Equipment Substitutions and/or Trip Cancellations
B. Domestic and Flag: When a pilot is awarded a regular line of time and trips are subsequently cancelled from that line due to:
(1) holiday cancellations subsequent to bid award, or
(2) schedule changes subsequent to bid award, or
(3) accommodation of extra sections or charters, or
(4) weather or mechanical reasons during the final seventy-two (72) hours of a calendar month,
such pilot shall be paid for the scheduled time for the trip(s) so cancelled, less any time for which he is reassigned. A pilot may only be reassigned on the same calendar days he was originally scheduled to fly.
4
Section 25, Part 2 provides in pertinent part:
Part 2--Operation of Regular Trip Bid Patterns
G. Policy Regarding Trip Pickup
(1) When a regular pilot's projected schedule for a month is less than seventy-six (76 ) hours, he may pick up a trip out of open time providing the reserve pilot scheduled to fly the trip can be given at least five (5) hours notice prior to scheduled departure ...
J. When a regular pilot loses flying time from his trip bid pattern because of:
(1) cancellation; except as provided for in Section 3 (Compensation), Part 6, Paragraph B,
(2) weather or mechanical irregularities,
(3) flight time limitation,
(4) emergencies in his immediate family, or
(5) trips dropped during time of transfer from one base to another, he may exercise the provisions of Part 2, G. of this Section.
NOTE: (1) and (2) above do not pertain to pilots who lose time due to Company convenience. They are covered under the rescheduling provisions in Part 6 of this Section.
K. When a regular pilot has commenced a trip series and loses a portion of that series through no fault of his own, he shall have the option of picking up any portion of the balance of the series that he can reasonably pick up, or he may pick up time from open time.... This paragraph does not apply to a pilot who loses time due to Company convenience as covered in Part 6 of this Section.
5
Section 4 provides in pertinent part:
Part 1--Minimum Flight Pay Guarantee
A. Domestic
(1) Regular Guarantee
(a) Each regular pilot shall receive a minimum monthly guarantee consisting of 86.6% of the monthly maximum to include longevity, hourly, mileage and gross weight pay, at rates applicable to his status, one-half day and one-half night on the equipment he is currently flying on a regular trip bid pattern....
6
Section 23 states in pertinent part:
Part 1--Reduction in Force
D. All pilots that could be affected by a reduction in force should submit a new standing bid indicating the lowest relative seniority position acceptable to them at each base/sub-base on the following basis, and all vacancies shall be filled on the basis of this new standing bid, or, in its absence, the last standing bid the pilot has submitted.
(2) Affected pilots (as defined in Section 2) may displace any pilot junior to them at any base/sub-base in any status.
Part 3--Furlough Rules
A. All orders to pilots involving furloughs or recall from furloughs shall be in writing. Thirty (30) days notice is required prior to furlough. Upon recall, a pilot will be allowed thirty (30) days to return to service. Any furloughed pilot who fails to notify the Company within ten (10) days of his intention to return to duty, and who fails to return to duty within thirty (30) days after notice has been sent by certified mail, return receipt requested, to the last address furnished the Company, will be considered out of service unless a justifiable reason be presented. For the purpose of this Paragraph, "notice" means attempted delivery by the U.S. Postal Service of a letter sent Certified Mail, marked "Deliver to Addressee Only."
(1) Should the Company offer recall to a pilot which would require him to be based in Guam, he may refuse that recall and remain on furlough as long as there is a junior pilot on the recall list. If the most junior pilot refuses recall, he will lose all of his seniority.
(2) When a pilot is on furlough he shall, upon request, prior to ten (10) days following notice of recall, be granted a leave of absence of up to three (3) years from the date of such request provided a pilot(s) junior to him is on furlough.
B. All pilots furloughed from the Company shall file their current permanent address with the Vice President-Flight Operations at the time of furlough. Any subsequent change of address should be supplied to the Vice President-Flight Operations.
C. Pilots furloughed due to a reduction in force shall be allowed, for seniority purposes, all time accrued prior to such furlough and shall continue to accrue seniority during the period of furlough. All such furloughs shall expire at the end of ten (10) years from the effective date of such furlough, or at the expiration of a period equal to the furlough pilot's length of service with the Company, whichever is longer.
D. When a pilot is furloughed or his employment with the Company is terminated during any year, he shall be paid for vacation time earned and not previously taken, and the total amount of such vacation compensation shall be at the rate of pay currently receivable by such pilot and such amount shall be in addition to any other compensation due him as of the date of termination of his employment.
E. Pilots recalled from furlough shall be entitled to exercise their respective seniority as regards bidding rights on base/sub-base vacancies which necessitated the recalls. Such pilots, when called from furlough, shall be recalled to the base from which furloughed, or a Company paid move shall be granted in accordance with Section 6 (Moving Expenses).
F. Any pilot recalled from furlough shall be guaranteed a minimum of ninety (90) days employment or ninety (90) days pay and credit in lieu thereof.
G. The notice provisions under Part 3 and furlough pay under Part 4 shall not apply if the furlough is occasioned by a strike, work stoppage, act of God or circumstances over which the Company has no control.
H. If a pilot is furloughed within twelve (12) months of exercising a Company paid move, the pilot may (at his option) be returned to the pilot's previous base at Company expense within two (2) years of the effective date of the furlough. A pilot will be eligible for such a move only if it is exercised prior to his return to duty. If the pilot is recalled to his last active base, the pilot will be responsible for the costs associated with the move. If the pilot is recalled to a base other than the one from which he was furloughed, the pilot will be entitled to the value of the move from the furloughed base to the new base.
I. Pilots on furlough shall receive on line space available pass privileges for a minimum of six (6) months or a period equal to the pilot's actual length of service, if greater, commencing on the first day of the month following the date of the pilot's last furlough pay.
Part 4--Furlough Pay
A. A pilot who is furloughed shall receive furlough pay for the period of time of active service as specified below:
1
year of service 1/2 month
2
years of service 1 month
3
years of service 1 1/2 months
4
years of service 2 months
5
years of service 2 1/2 months
6
years of service 3 months
7
years of service 3 1/2 months
8
years of service 4 months
9
years of service 4 1/2 months
10
years of service or more 5 months to pay
D. Full furlough pay provisions shall apply each and every time a pilot is placed on furlough status.
7
The pilots urge that because a "furlough" is not specifically defined in the Red Book, the legal presumption is that the parties intended the "customary broad meaning" of the term. Appellants' Brief at 15. The pilots discuss the meaning given to "furlough" by various courts, by Congress in the Civil Service Reform Act, and by Webster's dictionary
In Fishgold v. Sullivan Drydock & Repair Corp., the Court stated that a furlough is a "form of lay-off", and defined "lay-off" as "A period during which a workman is temporarily dismissed or allowed to leave his work ..." 328 U.S. 275, 287 & n. 11, 66 S.Ct. 1105, 1112 & n. 11, 90 L.Ed. 1230 (1946) (quoting Oxford English Dictionary, Supp.). Section 7511(a)(5) of the Civil Service Reform Act defines "furlough" as "the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons." 5 U.S.C. § 7511(a)(5). Additionally, Webster's dictionary defines "furlough" as "a temporary lack of employment due to economic conditions." Webster's Third New International Dictionary 923 (1961).
8
In furtherance of their argument that Continental's three-day shutdown constituted a furlough, the pilots point to an opinion letter issued by the Department of Labor in response to an inquiry by a member of the O'Neill group as to whether he was entitled to designated status under the labor protective provisions of the Airline Deregulation Act, 49 U.S.C.App. § 1552(d). Record, Vol. 2 at 130, Appendix 21 at 3. The letter states as follows:
First, the Department stands by its earlier opinion on the designated status of the pilots. The nature of Continental's layoff admittedly differed from that which was common to the industry, but it still must be construed as a constructive furlough or termination. While the substantial reduction in wages and benefits and changes in work rules may have been comparable to standards at some other carriers, the abrogation of the collective bargaining agreement made Continental's action radically different.
9
11 U.S.C. § 502(g) provides as follows:
A claim arising from the rejection, under section 365 of this title or under a plan under chapter 9, 11, 12, or 13 of this title, of an executory contract or unexpired lease of the debtor that has not been assumed shall be determined, and shall be allowed under subsection (a), (b), or (c) of this section or disallowed under subsection (d) or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition.
10
In ruling on the pilots' and flight attendants' contract rejection damages claims in this case, this court held that "employees whose collective bargaining agreements are rejected in a Chapter 11 bankruptcy proceeding are entitled to future wages and benefits as contract rejection damages under 11 U.S.C. § 502(g)", In Re Continental Airlines, 901 F.2d at 1260, based upon what the employees would have made had the contract not been rejected. Id. at 1265
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537 U.S. 812
NATIONAL REPUBLICAN SENATORIAL COMMITTEE ET AL.v.PRITT.
No. 01-1331.
Supreme Court of United States.
October 7, 2002.
1
SUPREME COURT OF APPEALS OF WEST VIRGINIA.
2
Sup. Ct. App. W. Va. Certiorari denied. Reported below: 210 W. Va. 446, 557 S. E. 2d 853.
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_____________
No. 96-1086WM
_____________
Eric Clemmons, *
*
Appellant, *
* On Appeal from the United
v. * States District Court for
* the Western District of
* Missouri.
Paul Delo, *
*
Appellee. *
___________
Submitted: June 13, 1996
Filed: November 22, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge, and
KORNMANN,* District Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
Eric Clemmons, the petitioner, has been sentenced to death for
killing a fellow inmate at the Missouri State Penitentiary. Exculpatory
evidence was apparently withheld from Clemmons by the State prior to his
trial. In addition, evidence that was important to the State's case came
in by deposition, raising serious issues under the Confrontation Clause.
The District Court1 held, however, that both these claims were procedurally
barred. After thorough
*The Hon. Charles B. Kornmann, United States District Judge
for the District of South Dakota, sitting by designation.
1
The Hon. Howard F. Sachs, United States District Judge for
the Western District of Missouri.
consideration, we affirm, though not altogether for the same reasons.2
I.
The District Court and the Missouri Supreme Court have rendered
careful and detailed opinions reciting the facts in this case. Clemmons
v. Delo, No. 90-0943-CV-W-6, slip op. (W.D. Mo. July 7, 1995); State v.
Clemmons, 753 S.W.2d 901 (Mo.) (en banc), cert. denied, 488 U.S. 948
(1988). We will summarize them here only to the extent necessary for our
review.
On August 7, 1985, Clemmons was an inmate at the Missouri State
Penitentiary. Shortly before 9:00 that evening, Corrections Officer Thomas
Steigerwald, while walking towards a group of inmates standing near Housing
Unit 3, observed one of the inmates grab another, strike him in the chest,
and then hit him with a roundhouse punch in the side. Henry Johnson, the
inmate who had been struck, ran past Steigerwald to the entrance to the
main corridor. As he did so, Steigerwald noticed blood on Johnson's shirt.
It was then that Steigerwald realized that a stabbing had occurred.
Steigerwald called for backup on his radio and began to pursue the
inmate whom he had seen striking Johnson. That inmate, who was
2
Petitioner also argues that certain claims made in his habeas
petition were admitted by the State when (according to him) it
failed to deny them in a timely fashion, and that his trial counsel
was ineffective in failing to object to certain allegedly improper
actions of the prosecutor, in failing to ask on voir dire whether
potential jurors would automatically vote for the death penalty, in
failing to conduct voir dire on the presumption of innocence, in
failing to present certain mitigating evidence, including character
witnesses, accomplishments of the defendant, and psychological
testimony, and in failing to make an offer of proof of the
testimony of one Robert E. Lee. We have considered these arguments
and reject them, substantially for the reasons given in the
District Court's opinion.
-2-
wearing a gray sweatshirt, and another inmate, who was wearing a gray towel
around his head, began to move towards the prison chapel. Eventually,
these inmates separated, and Steigerwald decided to pursue the one in the
gray sweatshirt. He testified that he saw the faces of both inmates, as
well as a knife in the hand of the inmate in the gray sweatshirt.
Steigerwald eventually caught up with the inmate in the sweatshirt,
who was Clemmons. By that time the sweatshirt had been turned inside out
so that it appeared to be white. There was human blood on the gray part
of the sweatshirt, though it could not be typed. No knife was ever found.
The inmate in the gray towel was also caught. When his cell was
searched, a hat and a school book belonging to Clemmons were found. The
book was splattered with blood. The inmate had been seen entering the
housing unit carrying the hat and the book shortly after the stabbing. The
blood splatters on the hat were human blood of either type B or type AB.
Johnson, the victim, had type B blood.
Johnson later died. An autopsy revealed that he had been stabbed
three times. The fatal blow was to the left side of his chest and
penetrated his heart. He also sustained a stab wound to his left side and
another under his right arm. A scratch on his shoulder was also
discovered, but it is uncertain whether the scratch was inflicted at the
same time as the three stab wounds. Prior to his death, Johnson exclaimed,
"they have stuck me in my heart."
Clemmons was charged with murdering Johnson. At his trial, there
were two pieces of particularly damaging evidence against him. The first
was Steigerwald's testimony identifying him as the person who struck
Johnson and as having a knife. The second was testimony from Captain A.
M. Gross that Clemmons had stated in
-3-
Gross's presence, "I guess they got me." Clemmons's defense was that
another inmate, Fred Bagby, had killed Johnson, and several inmates
testified more or less to that effect. According to Clemmons, what
Steigerwald saw was Johnson running into Clemmons after Bagby had already
stabbed Johnson. Bagby had died by the time of trial, and the State argued
that the testimony of Clemmons's witnesses should be discounted because it
was easy for them to try to help Clemmons by blaming someone (Bagby) who
could not defend himself.
Clemmons was found guilty. In the penalty phase, several aggravating
circumstances were alleged. Most notably, Clemmons was a prisoner under
sentence of life imprisonment without possibility of parole for 50 years
for another murder when Johnson was killed. The jury sentenced Clemmons
to death.
II.
Clemmons alleges that exculpatory evidence was withheld from him
prior to his trial in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Following Clemmons's direct appeal, he discovered an important piece of
evidence. On the very day that Johnson was killed, a Department of
Corrections inter-office communication was written by Captain A. M. Gross,
the same Captain Gross who testified against Clemmons, stating that another
inmate had accused Fred Bagby of killing Johnson. The inter-office
communication reads as follows:
On the above date at approximately 9:30 P.M. I was
searching the upper yard for evidence in the
stabbing that had taken place about 8:55 P.M. on
inmate Johnson, Henry . . . when I met and
interviewed inmate Clark, Dwight . . .. Clark said
that he had witnessed the assault on Johnson, and
that he had seen two (2) men stabbing Johnson. He
described both assailants as being black, and he
thought one was inmate Fred Bagby but only
-4-
knew the second inmate by sight. When questioned
in detail Clark did not make sense and further
investigation reflects that Clark's statement is
untrue.
This evidence was not provided to Clemmons's attorney, despite a discovery
request for "[a]ny material or information . . . which tends to negate the
guilt of the defendant."3
Clemmons raised the failure to disclose this memo in his initial
postconviction motion under Rule 29.15 of the Missouri Rules of Criminal
Procedure. The memo itself was introduced in evidence at the 29.15 hearing
without objection from the State. Clemmons did not, however, call Clark
as a witness, even though he had subpoenaed Clark, and Clark was available
to testify. In fact, Clemmons himself specifically chose not to call Clark
as a witness.
The 29.15 court denied Clemmons's motion, but did not discuss the
Brady issue. Clemmons then appealed to the Missouri Supreme Court. See
Clemmons v. State, 785 S.W.2d 524 (Mo.) (en banc), cert. denied, 498 U.S.
882 (1990) (affirming denial of postconviction relief). There, however,
his lawyer, contrary to repeated instructions from Clemmons, failed to
raise the issue of the undisclosed evidence. Clemmons, in an effort to
save the issue, attempted to file a pro se supplemental brief with the
Missouri Supreme Court, but his motion for leave to file the brief was
denied.
Clemmons once again raised the Brady issue in his petition for
3
The State contends that the memorandum was in Johnson's
inmate file, which was reviewed by trial counsel for Clemmons. We
agree with the District Court that "[t]here is little need to
resolve the [issue]." Slip op. 13. "[I]f the memorandum was in
the victim's file, but was not examined or was discounted by [trial
counsel]," ibid., a claim of ineffective assistance of counsel
would arise that would be just as strong or just as weak, as the
case may be, as the Brady claim Clemmons now presses.
-5-
a writ of habeas corpus before the District Court. That Court held that
the claim was procedurally barred.
A.
As we have seen, the Brady claim was raised in the trial court on
Clemmons's petition for postconviction relief under Rule 29.15. The Gross
memorandum was introduced into evidence by petitioner, without objection
from the State. Moreover, there was not then, nor is there now, any claim
by the State that the memorandum was a fabrication or was for any reason
not authentic. It is true that petitioner did not call Clark as a witness
at the postconviction hearing, though Clark had been transported from the
prison in order to testify and was readily available for that purpose. We
cannot agree, however, that the failure to call Clark operated as a waiver
of the Brady claim itself, though, if the merits of the claim are to be
reached, our consideration will have to be limited to the memorandum, and
cannot include the testimony given by Clark at the federal habeas hearing.
See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992) (holding that factual
development of a claim must take place in the state courts).4
Petitioner's difficulty stems from the fact that the Brady issue was
not raised in the appeal from the denial of postconviction relief.
Omission of this issue was a serious mistake by Clemmons's appointed
counsel, perhaps the sort of mistake that, if committed at trial or on
direct appeal, would
4
We do not know why petitioner decided not to call Clark. We
do know that this decision was made by petitioner himself, not by
post-conviction counsel. There may be a reasonable inference here
that petitioner had spoken with Clark privately and had determined
that Clark's testimony would not help him. Clark testified later,
at the evidentiary hearing in the federal habeas court, and his
testimony was quite favorable to petitioner, but this does not
necessarily mean that Clark would have testified to the same effect
at the time of the State post-conviction hearing.
-6-
amount to ineffective assistance in violation of the Sixth and Fourteenth
Amendments, but error of this kind on the part of postconviction counsel
cannot be "cause" to excuse a procedural default. See Coleman v. Thompson,
501 U.S. 722, 753 (1991); Nolan v. Armontrout, 973 F.2d 615 (8th Cir.
1992).
What we have here, however, goes beyond a mere omission on the part
of counsel. After counsel had been appointed to represent Clemmons on his
29.15 appeal (counsel different from the lawyer who had represented him in
the postconviction trial court) Clemmons wrote the new lawyer to request
that he be kept informed. He specifically stated that he wanted all of his
issues preserved. Appointed counsel, however, filed a brief in the 29.15
appeal without giving Clemmons an opportunity to review it and without
including in the brief all of the issues previously raised in the trial
court. Petitioner then wrote counsel and instructed him to file a
supplemental brief raising the additional issues. Clemmons specifically
drew the attention of counsel to the danger that issues not raised would
later be held not to have been properly presented. "I want you to lay the
ground work so if the Missouri Supreme Court refuse [sic] to hear [the
unbriefed issues] the record will clearly show we tried to present them."
Letter of December 26, 1989, App. 270. Counsel refused, stating that he
had "made every argument on your behalf that I felt could be supported by
law and evidence." Letter of December 29, 1989, App. 271.
Clemmons then made a motion in the Missouri Supreme Court for leave
to file a supplemental brief pro se. This motion recites that appointed
counsel had filed a brief raising only six points, that Clemmons had
requested in writing that every other ground preserved by the record also
be raised, and that counsel had refused this request. The motion further
states that no fewer than 130 additional points should have been raised.
It asks the Court to accept a number of documents "as a supplemental brief
in this cause," including the original and first amended 29.15 motions,
-7-
both of which documents, presumably, were in the record before the Missouri
Supreme Court. The Court denied the pro se motion without comment. The
documents referred to in the motion included the Brady issue now under
discussion.
As noted above, we agree with the State that mistakes made by counsel
in postconviction proceedings do not constitute "cause" for habeas
purposes. The initial question, though, is not whether there was cause to
excuse a procedural default, but whether there was a default in the first
place. In other words, did Clemmons fairly present his Brady claim in the
state courts? In the perhaps unique circumstances of this case, we think
the answer is yes.
It is perfectly true that counsel does not have to present every
issue appearing in the record. In fact it could be bad lawyering to do so,
especially when there are so many potential issues. As counsel remarked
in his letter to Clemmons, "[y]ou can't expect every single allegation to
hold up in court, and it's not the number of allegations that matters
anyway. One good issue is better than a thousand others." App. 271. The
client, however, is and always remains the master of his cause. Here,
Clemmons did the only thing he could do: he tried to bring the issue to
the attention of the Missouri Supreme Court himself. We do not criticize
that Court for refusing leave to file the supplemental brief. Such matters
are within the Court's discretion. Our own practice is usually to refuse
leave to file supplemental briefs in cases in which counsel has appeared.5
5
In the present case, we have before us three pro se filings.
First, a pro se supplemental brief was received on May 13, 1996.
The motion for leave to file this brief is granted. Second, we
received on June 10, 1996, an additional document styled "Oral
Argument Written Statement." We have considered this document.
Third, on September 3, 1996, Clemmons filed a pro se motion to
supplement the record. This motion is granted, and we have
considered the materials attached to it. This Court's normal
practice is to refuse pro se filings from clients who are
represented by counsel. We have departed from our normal practice
in this case for two reasons: Clemmons's history of difficulty
with previously appointed counsel, and the fact that this is a
death-penalty case.
-8-
The fact remains that
-9-
Clemmons called the attention of the Supreme Court of Missouri to his Brady
claim, among many others. We do not know what else he could have done, as
a practical matter, to present the claim to that Court for decision on the
merits.6 We therefore hold that the claim was fairly presented, and that
the merits are now open for decision on federal habeas corpus.
B.
The question to be answered is this: If the Gross memorandum, but
not Clark's live testimony, had been before the state trial court, how
would the case have been different? In order to succeed, Clemmons must
show a reasonable probability that the outcome would have been different.
"A `reasonable probability' is a probability sufficient to undermine
confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682
(1985) (opinion of Blackmun, J.) (adopted by the Court in Kyles v. Whitley,
115 S. Ct. 1555, 1566 (1995)).
Petitioner does not have to show that he would more likely
6
At the evidentiary hearing on this habeas petition, the
District Court suggested that Clemmons could have fired his lawyer
and then filed his pro se brief. No doubt a client can always
discharge his lawyer, but the suggestion does not seem practical in
the present circumstances. When Clemmons learned, after the fact,
that his lawyer had violated his instructions by filing a brief
omitting issues the client wanted raised, oral argument was only
about a month away. Clemmons could have asked for appointment of
new counsel to make the argument and file a supplemental brief, but
he had no way of knowing whether such a motion would be granted.
(Nor do we.) If he thought about this alternative, he could
reasonably have concluded that it would not be in his best interest
to risk having no lawyer at all to argue his case. We do not
normally order the release of inmates from jail to argue their
appeals pro se, and we assume the practice of the Supreme Court of
Missouri is similar.
-10-
than not have been acquitted if the withheld evidence had been before the
jury. "[A] showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have
resulted ultimately in the defendant's acquittal . . .." Kyles v. Whitley,
supra, 115 S. Ct. at 1566. The question is rather whether the defendant,
in the absence of the evidence in question, "received a fair trial,
understood as a trial resulting in a verdict worthy of confidence." Ibid.
Further, petitioner does not have to show that "after discounting the
inculpatory evidence in light of the undisclosed evidence, there would not
have been enough left to convict." Ibid.
We have read the entire transcript of the guilt phase of the trial
as it actually occurred in 1987. What would the evidence have looked like
if the defense had been given, and had used, the later-discovered Gross
memorandum dated August 7, 1985? The main support for the State's case,
the eyewitness testimony of Officer Steigerwald, would be unchanged.
Steigerwald's testimony was clear, consistent with the physical evidence
about the location of blood, and unshaken on cross-examination. It was
almost dark when the incident began, and Steigerwald was a considerable
distance away, but he was within 10 or 12 feet of Clemmons (the inmate in
the gray sweatshirt whom he had seen strike Johnson) when he saw the knife
in his hand. There is absolutely no reason to suspect that Officer
Steigerwald fabricated any part of his testimony, and no one suggests that
he did so. It is always possible, of course, that he was mistaken, but,
to the extent that the written page conveys an impression, we find his
testimony convincing.
The other major witness for the State was Captain A. M. Gross, who
testified about the admission Clemmons is supposed to have made the next
morning. Clemmons now denies that he made any such statement, but not much
in the way of a concrete reason for disbelieving Captain Gross is
suggested. Presumably the Clark memorandum would have been used by the
defense during the cross
-11-
examination of this witness. Also presumably, the witness would have
admitted, after seeing the memorandum, that Clark had identified Bagby as
the culprit immediately after the incident, at a time when Bagby was still
alive. The memorandum, however, does not cut all one way. It ends with
the following sentence: "When questioned in detail Clark did not make
sense and further investigation reflects that Clark's statement is untrue."
If the matter had been pursued on cross-examination, Gross would probably
have given his reasons for making this statement. In the alternative, the
State could have brought out his reasons on re-direct. In either event,
we think it likely that the impact of the first portion of the memorandum
would have been somewhat diminished.
The fact that Clark had accused Bagby before Bagby's death would, to
be sure, have been useful to the defense in connection with the State's
attack on the credibility of defense witnesses. Three inmates, Justice
Mays, Seymour G. Abdullah, and Keith Brown, testified for the defense. On
direct examination, Mays testified unequivocally that the victim, Johnson,
hit Bagby in the face, and that Bagby then pulled a knife and stabbed
Johnson three times. Johnson then ran and bumped into Clemmons, the
defendant. On cross-examination, however, Mays's testimony was seriously
undermined. When he realized that he had placed the location of the
alleged collision between Johnson and Clemmons at a place nowhere near the
trail of blood found on the ground, he changed his testimony about the
location. This change was highlighted during the State's closing argument
to the jury.
Seymour Abdullah also identified Bagby as the perpetrator, and it was
during cross-examination of this witness that the State referred to Bagby
as "conveniently dead." Tr. 448. According to Abdullah's version of the
facts, however, it was Bagby, not Johnson, who had a collision with
Clemmons, and Abdullah admitted that he saw no blood at the location of
this collision. (The
-12-
importance of the collision, according to the theory of the defense, is
that it provides an explanation for the blood on Clemmons's sweatshirt.)
The final witness was Keith Brown, the inmate who, according to
Officer Steigerwald, ran away from the scene with Clemmons and ended up
with Clemmons's hat and book in his cell. Brown testified that there was
a scuffle, and that Johnson began running, with Bagby right behind chasing
him. Brown was less certain about the collision. He thought that Johnson
appeared to have bumped into Clemmons, or another inmate named Lewis, or
someone else. He then left the scene but returned to pick up some papers
of his own. It was then, he said, that he happened to see a hat and some
papers lying on the ground, which he picked up and took to his cell. On
cross-examination, he gave confused and evasive answers about his
activities in the vicinity of the chapel. His version of the facts did not
appear to be consistent with the location of the chapel door.
In his closing argument, counsel for the State stressed Officer
Steigerwald's unequivocal identification of the defendant. He observed
that the location of the trail of blood was inconsistent with the
defendant's statement to Officer Brooks as to where he was standing when
the victim, Johnson, brushed or bumped against him. Steigerwald had no
reason to lie, counsel stressed, and there was no blood where the defense
witnesses had placed the altercation. Counsel also referred to "the
conveniently deceased Mr. Bagby," Tr. 500, but added that both Mays and
Abdullah appeared to be uncertain as to whether Bagby or the victim
collided with Clemmons. Towards the end of his argument, another reference
was made to the fact that the defense witnesses were blaming the crime on
a dead man. Tr. 504.
We take it that if the Clark memorandum had been used in cross-
examining Captain Gross, as indicated above, the State would
-13-
have omitted the argument about Bagby's being dead at the time of trial -
though it still might have been logical to point out that the three live
witnesses actually called, Mays, Abdullah, and Brown, had waited until
Bagby's death to accuse him. However that may be, most of the State's
case, including notably Officer Steigerwald's eyewitness account and
Clemmons's arguable admission, would have been untouched. We are acutely
mindful that "[o]ur duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital case."
Burger v. Kemp, 483 U.S. 776, 785 (1987). We take this responsibility
extremely seriously, as the District Court did. Having considered the
matter with the care that it deserves, we are simply unable to say that our
confidence in the verdict is sufficiently reduced. The standard,
unfortunately but perhaps necessarily, contains some element of
subjectivity. We suppose that any piece of evidence favorable to the
defense - and the Clark memorandum certainly falls in this category - must
have some tendency to undermine one's confidence level, so to speak. It
is dangerous and perhaps misleading to try to express these matters in
quantitative terms. The judgment we have to make is a qualitative one.
The closest we can come to expressing it clearly is this: as the case was
actually tried, it seems to us that the defense had only a rather small
chance of prevailing. We do not think that the Clark memorandum would have
increased this chance more than marginally. We still have confidence in
the verdict of guilty, and it is, accordingly our bounden duty to reject
Clemmons's Brady claim.
III.
We turn now to the other major contention made by Clemmons on this
appeal - that his rights under the Confrontation Clause were violated by
the use against him of the deposition of Captain A. M. Gross. Clemmons's
lawyer did not inform him of the deposition in advance, he was not present
when it was taken, and he did not thereafter consent to its being used
against him at trial. (The
-14-
lawyer decided to take the deposition as a courtesy to Gross, whose wife
had died immediately before the trial.) We agree with the District Court
that this contention, if open for decision on the merits in this federal
habeas proceeding, would be a substantial one. See Don v. Nix, 886 F.2d
203, 206 (8th Cir. 1989) (holding that "the right to be physically present
when the accusations that the jury will hear are made" extends to pretrial
depositions intended to be used at trial).
The District Court held, however, that the contention was
procedurally barred by petitioner's failure to raise it in the proper
fashion in the state courts. Before addressing this issue directly, we
briefly describe and put to one side two subsidiary contentions made by the
parties. First, the State argues that petitioner never actually made a
Confrontation Clause claim in the District Court. The claim, rather, was
that petitioner's trial counsel had been ineffective for allowing the State
to use a deposition taken when petitioner was not personally present. We
assume for present purposes that the District Court was correct in
believing that petitioner had made a Confrontation Clause claim as such,
and not just an ineffective-assistance claim based on counsel's failure to
preserve his client's right of confrontation.
Second, petitioner argues that the State never pleaded
"nonexhaustion" in the District Court with respect to his Confrontation
Clause claim. Any objection to consideration of the claim on its merits
was, therefore, waived, the argument runs, and it was error for the
District Court not to reach the merits. We reject this argument. We
believe it rests on confusion between the doctrines of exhaustion and
procedural bar. It is true that the State did not plead nonexhaustion as
a defense, but exhaustion refers to the present availability of state
remedies. If no state remedies are presently available for adjudication
of a federal claim, exhaustion of remedies has occurred, and this is true
whether the absence of state remedies is due to the state courts'
-15-
having already considered the claim, or to a petitioner's failure to raise
the claim at some earlier, proper time. In other words, a claim that is
procedurally barred is, by definition, an exhausted claim. The District
Court's opinion does state that the claim "has not been exhausted before
the Missouri courts, and has, therefore, been waived as procedural error
under state law," slip op. 7, but we read this statement as simply an
informal way of saying that the claim was never properly raised in the
state courts and is therefore now procedurally barred. As the remainder
of the District Court's opinion shows, that Court did not intend to say
that the Confrontation Clause claim had been exhausted in the state courts,
in the sense of having been raised and decided there. Quite the contrary:
the District Court explained at length its reasons for holding that the
claim had not been properly raised in the state courts, and that,
therefore, it was procedurally barred. We now turn to this issue.
In his brief to this Court, petitioner argues that the claim was
properly raised on direct appeal. The motion for new trial filed by
counsel does refer to the right of confrontation, and petitioner's own pro
se motion for new trial directly claims that "[t]he court denied defendant
the right to confront his accuser, when the court allowed the State to read
to the jury and into evidence the deposition of Mr. Gross." Brief for
Appellant 35. However, appellate counsel on the direct appeal, not the
same as trial counsel, did not raise the Confrontation Clause issue in her
brief. Petitioner argues that the issue was preserved when he filed a
motion to recall the mandate and claimed ineffective assistance of
appellate counsel. As we understand Missouri practice, a motion to recall
the mandate, at least on direct appeal, is a proper way (perhaps the only
proper way) to claim ineffective assistance of appellate counsel. The
trouble with this point for present purposes is that petitioner's motion,
which we have examined, though it does charge appellate counsel with
ineffective assistance in several respects, says nothing about the
-16-
Confrontation Clause. Nor does the motion refer to or incorporate any
documents that would have alerted the Supreme Court of Missouri to the
Confrontation Clause argument. The pages of the appendix which petitioner
cites in this connection, 284-85, are entirely devoid of any reference to
this issue. We do not think that a general allegation of ineffective
assistance of appellate counsel, without elaboration, is sufficient to
raise any particular instance of the allegedly ineffective assistance.
Still less is a motion specifying certain grounds of ineffective assistance
adequate to alert a court to any particular other ground. Petitioner's
motion does claim that appellate counsel was ineffective in failing to
brief as plain error "[t]he other allegations of trial counsel's
ineffectiveness," App. 285, but nothing is said to particularize these
grounds, nor, again, is any reference made to the Confrontation Clause or,
indeed, to Captain Gross's deposition in any connection.
Petitioner has now filed a second motion to recall the mandate, and
this motion does clearly refer to the Confrontation Clause issue. The
Supreme Court of Missouri denied the motion on October 20, 1995, while this
habeas case was pending before the District Court. The Supreme Court
denied this motion without comment. We have no reason to believe that the
denial was on other than procedural grounds. No authority has been cited,
nor are we aware of any, that would support the filing of second or
successive motions to recall the mandate. If such filings were permitted,
there would be no particular incentive to include in one's first motion to
recall the mandate all grounds of ineffective assistance of appellate
counsel then known or available. The Missouri Supreme Court's order does
not state that it is based on procedural grounds, but we believe we are
safe in concluding that it was. There is simply no reason to conclude that
the federal claims were rejected on their merits, or were interwoven with
claims that were decided on their merits. See Jolly v. Gammon, 28 F.3d 51,
53 (8th Cir.), cert. denied, 115 S. Ct. 462 (1994). Petitioner also
-17-
attempted to raise this issue by original petition for writ of habeas
corpus in the Missouri Supreme Court under Mo. Sup. Ct. R. 91, but, again,
this petition was summarily denied without comment, and we have no reason
to believe that this denial represented a ruling on the merits of the
Confrontation Clause issue. See Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th
Cir. 1991).
Petitioner also contends that the Confrontation Clause issue is
preserved for federal review by reason of having been urged in his state
postconviction proceeding.7 The 29.15 trial court, in its findings and
conclusions, rejected the argument on the ground that the Gross deposition
was taken "with the consent of the Movant." Respondent's Exhibit G, p.
235. This finding was not supported by the record, there having been no
testimony to support it, and no one now defends it. Petitioner's problem
is that there was no evidence in the postconviction record one way or the
other on the issue. At the postconviction hearing in state court,
petitioner testified, but he said nothing about not having been given an
opportunity to be present during the Gross deposition. Petitioner's
counsel did not call trial counsel. He testified only when called by the
State, and his testimony did not include any reference to petitioner's
presence vel non at the Gross deposition. Indeed, as the District Court
remarked, slip op. 8 n.6, the
7
We assume, without deciding, that ineffective assistance of
direct-appeal counsel can be raised in a 29.15 postconviction
petition. We observe that the assumption seems questionable. We
are aware of no authority so holding, and the appellate court,
which unquestionably can consider the issue on motion for recall of
mandate, would be more familiar with counsel's performance before
it. In addition, if I can raise the point in my 29.15 petition
anyway, why bother to move the appellate court to recall its
mandate? On the other hand, the 29.15 trial court in the present
case did consider the Confrontation Clause issue and reject
petitioner's claim on the merits, so the claim, absent some other
default, would be cognizable on habeas in the present case even if
state procedural law would not normally allow it in a 29.15
proceeding. See, e.g., Hadley v. Caspari, 36 F.3d 51 (8th Cir.
1994) (per curiam).
-18-
"dispositive finding [that petitioner had consented to the Gross
deposition] does not seem to have been challenged by petitioner or counsel
prior to the proceeding in this court."
As we have previously noted, those who would attack a conviction are
obligated to develop the material facts in the state courts. "[A] state
prisoner's failure to develop material facts in state court" can be excused
only if petitioner demonstrates cause for this lack of development, and
prejudice resulting from it. See Keeney v. Tamayo-Reyes, supra, 504 U.S.
at 8. Prejudice there may be, due to the evident substantiality of the
Confrontation Clause issue, but we see no "cause" as that word has come to
be defined in the cases. It may have been inexcusable neglect, in the
sense of a lawyer's obligation to a client, not to have either petitioner
or trial counsel testify that Clemmons had not agreed to the use at trial
of the Gross deposition, but this sort of omission by postconviction
counsel cannot, as a matter of law, qualify as "cause." See, e.g., Coleman
v. Thompson, supra; Nolan v. Armontrout, supra.
Petitioner points out that he attempted to bring the issue to the
attention of the Missouri Supreme Court, first by instructing
postconviction appellate counsel to raise it, and then by filing his own
pro se brief incorporating pleadings that raised it. As we have held in
part II of this opinion, these efforts by petitioner were, in our view,
sufficient to present the issue to the Missouri Supreme Court. The problem
is that there was nothing, factually speaking, to present. If the Missouri
Supreme Court had addressed the Confrontation Clause claim, there would
have been no testimony or other evidence before it to justify a reversal
of the 29.15 trial court.
No doubt all of this seems more than somewhat technical. The basic
principle, however, is simple and easily understood: in order to get a
federal habeas court to consider on its merits an
-19-
attack on a state-court conviction, the facts said to justify the attack
must first have been fully developed in the state courts, unless a
petitioner can show some good reason, recognized in the law, that prevented
him from doing so. The state courts are and must be the primary forum for
the administration of the criminal law, and a due regard for their
competence requires us to respect those procedural rules that require the
underlying facts, absent some adequate cause, to be presented in the first
instance in the state system.
IV.
For the reasons we have attempted to explain in this opinion, the
judgment of the District Court, dismissing with prejudice the petition for
writ of habeas corpus, is affirmed. The Brady claim is rejected on the
merits. The Confrontation Clause claim is procedurally barred. We thank
appointed counsel for petitioner for their diligent and able service.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-20-
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159 So.2d 855 (1964)
Jesse (alias Jessie) BROWN
v.
Annie Mae BROWN.
6 Div. 12.
Supreme Court of Alabama.
January 16, 1964.
*856 Morel Montgomery, Birmingham, for appellant.
Beddow, Embry & Beddow and Fred Blanton, Birmingham, for appellee.
MERRILL, Justice.
Appeal by husband from a decree granting a divorce to his common law wife, awarding custody of their minor children to her, ordering appellant to pay $100 per month for the maintenance of the children, ordering a property settlement and allowing attorneys' fees to appellee.
Appellant and appellee, Negroes, went through a ceremonial marriage in 1942, and lived together until 1951, when they were divorced. Their four children were born during this marriage, but only two were minors or dependent when the present suit was tried. A few months after the divorce, they were reconciled and started living together again as man and wife in a common law marriage. In 1955, this relationship was dissolved by a second divorce. In January, 1956, they again began living together as man and wife, and this status continued until January, 1963, when they separated and appellee filed her bill for divorce in the instant case.
Most of the assignments of error raise the issue that there was no common law marriage from 1956 to 1963 and, therefore, there could be no divorce.
To constitute a valid common law marriage in Alabama, it is not necessary that there be a ceremonial marriage. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So.2d 166; Jenkins v. Avery, 257 Ala. 387, 59 So.2d 671; Goodman v. McMillan, 258 Ala. 125, 61 So.2d 55; Tripp v. Tripp, 270 Ala. 320, 118 So.2d 761.
Here, weight is given to the fact that the "parties had in times past or subsequent to the claimed relationship recognized or entered into the common law marriage." Goodman v. McMillan, supra. Also, there was testimony that they discussed going back together after their second divorce; that appellant offered her a house, rented and later purchased a house; that they shared the same bedroom; that appellee had a miscarriage in 1958, that appellant paid her hospital bill; that the entire family lived together; that they had joint charge accounts at two stores; that appellant referred to appellee as his wife on many occasions, and that they were known as man and wife in the community.
On the record before us, considered in the light of the well-recognized *857 presumption in favor of the trial court's finding from the evidence taken ore tenus, we are not able to say that the court erred in holding that there was a valid common law marriage which could be terminated once again by divorce. Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739.
Assignment of error 6 charges that part of the decree a nullity which orders appellant to convey a one-half interest in the dwelling because it does not specify who the grantee in the deed should be. Paragraph 5 of the decree reads:
"Respondent shall convey by statutory warranty deed a one half interest in and to the dwelling formerly occupied by complainant and respondent numbered 517 4th Street North, which is more particularly described as follows:"
* * * * * *
Whenever the judgment or decree is so obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and other proceedings to which it refers, and it should be interpreted in the light of the pleadings and the entire record. Bullard v. Williams, 272 Ala. 391, 133 So.2d 688; Taunton v. Dobbs, 240 Ala. 287, 199 So. 9; Coffey v. Cross, 185 Ala. 86, 64 So. 95. When viewed in the light of the pleadings and the entire record, and the fact that there was only one party complainant and one party respondent, it is clear that the decree means that the appellee is to be the grantee in the deed.
Assignment of error 8 complains of the awarding of $625 as attorneys' fees in the trial court. The amount is not contested, but the argument is based upon the claim that no common law marriage existed. That question has already been settled adversely to appellant.
Appellee has filed a petition for allowance of counsel fees on this appeal. We may, in our discretion, make an allowance for her representation on appeal where application is made to us to do so. Walling v. Walling, 253 Ala. 337, 45 So.2d 6; Windham v. Windham, 234 Ala. 309, 174 So. 500. A fee of $250 is awarded. Walling v. Walling, supra; Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645.
Affirmed, with an allowance for attorneys' fee on appeal.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.
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380 So.2d 873 (1980)
Bill HAAS
v.
MADISON COUNTY BOARD OF EDUCATION and Alabama State Tenure Commission.
Civ. 2113 and Civ. 2113-X.
Court of Civil Appeals of Alabama.
January 2, 1980.
Rehearing Denied January 30, 1980.
*874 Truman Hobbs, Montgomery, and Joseph Laurie Battle, Huntsville, for appellant-cross appellee Bill Haas.
Ralph H. Ford, and Elbert H. Parsons, Jr., for Ford, Caldwell, Ford & Payne, Huntsville, for appellee Alabama State Tenure Com'n and cross-appellant Madison County Bd. of Ed.
HOLMES, Judge.
This is a teacher tenure case.
The dispositive issue on appeal is whether the teacher has continuing service status as a principal. Put another way, does the teacher have tenure as a principal. We find that the teacher is a tenured principal.
Two cases in this court involving the teacher have been consolidated for purposes of appeal. In one case, the teacher contends the school board and the Tenure Commission erred in failing to give the teacher a hearing prior to changing his status from principal to teacher. This appeal is Haas v. Madison County Board of Education and The Alabama State Tenure Commission. In the other case, the board of education sought a declaratory judgment to determine whether or not the teacher had tenure as a principal. This case is styled for purposes of appeal as Madison County Board of Education v. Haas.
The trial court determined that the teacher did not have continuing service status *875 as a principal. The trial court further found, however, that the teacher had not been properly and timely notified that he was not to be assigned as a principal for the 1978-79 school year. In view of the trial court's finding that there was not timely notification, the trial court decreed that the teacher must be assigned as principal for the remainder of the school year and be paid, etc., for the entire year.
The teacher appeals from the decree finding the teacher did not have tenure and the school board appeals from the decision that the school board failed to properly notify the teacher.
The record reveals the following:
The teacher, who was already tenured as a teacher, served three continuous years as a principal with the Madison County School system. At the end of the third year an agreement was entered into between the Madison County Board of Education and the teacher. Under this agreement, the teacher was to begin a new three year probationary term as principal. The agreement further stipulated that the teacher would obtain continuing service status (tenure) as a principal only if he was re-employed as a principal at the end of this new probationary period.
At the end of the second year of the "probationary period," after the teacher had served five consecutive years as a principal, the board made a decision to terminate the teacher's employment as a principal and to assign him to a teaching position.
On May 31, 1978, the last day of the school term, the school board attempted to notify the teacher that he would not be re-employed as principal. However, such written notice was not received by the teacher until June, 1, 1978.
The teacher testified that he was under medication for a medical problem and was asleep at his apartment during the time the board was attempting to serve him on May 31. The teacher contends that he did not conceal himself to avoid service and did not in any way act improperly. The board disputed this, claiming the teacher deliberately avoided the notice.
The crucial and determinative issue before us is whether the teacher had acquired tenure as a principal. Clearly, if not for the agreement, he would have attained such status upon his re-employment for a fourth consecutive year. § 16-24-2, Code of Ala. 1975. Therefore, we must determine the authority of the board to enter into such a contract and the power of the teacher to waive his right to tenure in such a manner.
At the outset, we note both that the principal purpose of the Teacher Tenure Act, §§ 16-24-1, et seq., is to secure permanency in the teaching force and that it is designed so that teachers are its primary intended beneficiaries. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). Being remedial in nature, the Act is to be liberally construed to serve this intent. State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700 (1975). Furthermore, the terms and provisions of the Act are to be read into all contracts entered into by school boards and teachers. Clark v. Beverly, 257 Ala. 484, 59 So.2d 810 (1952).
The teacher argues that these considerations can only lead to the conclusion that his agreement with the board was ineffectual as a waiver of his right to tenure upon employment as a principal for a fourth consecutive year.
We agree and would further hold that the board exceeded its authority in joining in the agreement. We so conclude because although there are no Alabama cases on point, we find that the better reasoned decisions of other jurisdictions hold such attempted waivers of the protection afforded by teacher tenure laws as ineffectual on public policy grounds. Similarly, these decisions hold that school boards are powerless to modify the terms of the applicable tenure laws.
Thus, in Carlson v. School District No. 6 of Maricopa County, 12 Ariz.App. 179, 468 P.2d 944 (1970), it was held that the applicable tenure act set forth a statutory scheme designed to limit the power of a school *876 board to contract with its teachers for the following year. The court there concluded that the terms of any contract under the act are not to be confined to the provisions within the written document itself, but must include any pertinent statutory provisions in effect at the time the agreement was entered into.
The pertinent statutory provisions in the case at bar clearly contemplate but one way for a teacher (or principal) to gain tenure. Section 16-24-2(a) mandates that upon re-employment for a fourth year, after three years consecutive service, the teacher "shall obtain continuing service status." (Emphasis supplied.)
Likewise, in Marzec v. Fremont County, School District No. 2, 142 Colo. 83, 349 P.2d 699 (1960), the court said that where the length of the probationary period is fixed by the legislature, a school board is without authority to change it by contract or any other means.
There, as in Alabama, the statute called for a three year probationary period and granted tenure upon re-employment for a fourth year. The court concluded that the legislature had deemed three years to be a reasonable evaluation period for purposes of appraising the teacher's performance. The legislature having spoken, the court held that this period could not be shortened or waived by the board.
Logic compels the like conclusion that this period cannot be lengthened or waived by the teacher and/or the board. Once three consecutive years of service have been rendered, the teacher is to be either terminated or re-employed, thus gaining tenure. These are the only alternatives contemplated by our tenure law. They are therefore the only alternatives open to the involved parties.
Furthermore, in Boyd v. Collins, 11 N.Y.2d 228, 228 N.Y.S.2d 228, 182 N.E.2d 610 (1962), the court refused to validate the purported waiver by a tenured teacher of her right to a hearing before dismissal. In holding that statutory tenure terms can be changed only by the legislature and never by a board of education, the court said that to sanction a waiver of these terms would violate the spirit and public purpose of the act which was to protect the school system by giving permanency to the jobs of experienced teachers. As indicated, our tenure law shares this purpose and philosophy. State Tenure Commission v. Madison County Board of Education, supra.
We are not unaware that the New York court has recently modified the rule in Boyd so that it no longer calls for an absolute rejection of any attempted waiver. Abramovich v. Board of Education, 46 N.Y.2d 450, 414 N.Y.S.2d 109, 386 N.E.2d 1077 (1979). However, we conclude that, under the facts at bar, wherein the parties attempted to double the statutory probationary period, any attempted waiver must be rejected on public policy grounds.
In essence, the board here did not feel it wise to re-employ the principal for a fourth year and thus allow him to gain tenure as a principal. Desiring to "give him another chance," the agreement was worked out and entered into. By this action, no matter how well intentioned, the board and the teacher attempted to create their own public policy completely apart from the Teacher Tenure Act. They thus attempted to circumvent the purpose of the law. This cannot be allowed. Sherman v. Board of Trustees of Siskiyou Union High School, 9 Cal. App.2d 262, 49 P.2d 350 (Calif.1935).
In view of the above, since the teacher has served the requisite four consecutive years, it necessarily follows that he is a tenured principal.
We now turn to the board's contention that it made every possible effort to serve notice on the teacher of its intention to terminate him as a principal as required by the Teacher Tenure Act. There was evidence that the board attempted to reach the teacher personally at his school and at his apartment on numerous occasions on the day in question. There was also evidence that the board attempted to discover the teacher's whereabouts by calling his doctor and others.
*877 The board further contends that the conduct of the teacher was tantamount to concealment and that the board was prevented from serving the teacher because of the teacher's actions. The board would have this court hold as a matter of law that the actions of the teacher excused the statutory notice condition such that the teacher was not deemed re-employed for the succeeding school year as principal.
Section 16-24-12, Code of Ala.1975, in pertinent part states as follows:
Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given to said teacher on or before the last day of the term of the school in which the teacher is employed....
In order to comply with § 16-24-12, the board must show that notice was given to the teacher before the end of the school term. Strickland v. Berger, Ala., 336 So.2d 176 (1976).
In the instant case, where there were irreconcilable conflicts in the evidence, the function of believing one party and disbelieving the other was that of the trier of fact. Greater Friendship A.M.E. Church v. Spann, Ala., 336 So.2d 1087 (1976).
This court will not weigh evidence as to any fact found by the trial court, but looks only to see if there is any evidence to sustain the findings of the trial court. LaPoint v. Barton, 57 Ala.App. 352, 328 So.2d 605 (1976).
In this instance, the trial court could have concluded from the evidence that the teacher was not notified as required by § 16-24-12, based upon the testimony of the teacher that he was ill and asleep during the period in which the board attempted to serve notice and the fact that written notice was not received by the teacher until June 1, 1978.
The trial court's determination that the teacher was not properly notified by the board of its decision not to re-employ the teacher as principal is affirmed.
Summarily, in Madison County Board of Education v. Haas, the trial court's holding that the teacher was not given timely notice is affirmed while we reverse its decision that the teacher was not a tenured principal.
In view of our decision that the teacher is a tenured principal, it necessarily follows that the case of Haas v. Alabama State Tenure Commission is due to be reversed. Having held that the teacher is tenured as a principal, clearly the board could not change his status without benefit of a hearing and compliance with other appropriate statutory provisions.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF JUDGMENTS NOT INCONSISTENT WITH THIS OPINION.
WRIGHT, P. J., and BRADLEY, J., concur.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
Jan 12 2016, 9:35 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE
Essam Otefi
Angola, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Essam Otefi, January 12, 2016
Appellant-Respondent, Court of Appeals Cause No.
76A03-1506-DR-662
v. Appeal from the Steuben Circuit
Court
Doaa Ebrahim, The Honorable Allen N. Wheat,
Appellee-Petitioner. Judge
The Honorable Randy Coffey,
Magistrate
Trial Court Cause No.
76C01-1209-DR-320
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 1 of 12
Case Summary
[1] Essam Otefi appeals the trial court’s denial of his contempt petition against his
ex-wife, Doaa Ebrahim, as well as the award of attorney fees to Ebrahim and
modification of his child support obligation. We affirm in part and reverse in
part.
Issues
[2] The issues before us are:
I. whether the trial court properly refused to hold Ebrahim in
contempt for recovering personal property in Egypt not
specifically mentioned in the dissolution decree;
II. whether the trial court properly increased Otefi’s child
support obligation based on Ebrahim’s alleged increased
childcare costs; and
III. whether the trial court properly ordered Otefi to pay
attorney fees to Ebrahim.
Facts
[3] Otefi and Ebrahim are immigrants who married in Egypt in 2006, then settled
in Steuben County, and became American citizens. However, they retained
property in Egypt and had relatives living there. The couple had two children
while they were married.
[4] Ebrahim petitioned for divorce in 2012. At the final hearing, the parties
presented an agreement for division of their personal property and debts. The
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agreement listed thirty-one specific items of property and divided them between
the parties; it also set aside Otefi’s pension solely to him. The parties owned no
real estate in the United States. However, at the outset of the hearing, counsel
for Otefi stated:
The other issue, Your Honor, is that there is a question and
perhaps some dispute as to real estate ownership in Alexandria,
Egypt of the respective parties. Nonetheless it is my
understanding that the parties have agreed to relinquish any and
all interest that either party has against the real estate of the other
in the nation of Egypt if it exists.
App. p. 96. Counsel for Ebrahim agreed that this was an accurate stipulation.
Counsel for Otefi then continued:
And finally, Your Honor, uh, we just discussed this walking
down the hallway, um, [Ebrahim] would agree that post-
dissolution, she would bring no further claim in the nation of
Egypt for financial benefit or associated with the property of the
parties in the nation of Egypt. Having been otherwise satisfied
by this Court’s decree.
Id. Counsel for Ebrahim again agreed with this statement.
[5] The trial court entered a final dissolution decree, reflecting the stipulation and
agreement of the parties regarding division of their personal property and debts
in America and Otefi’s pension. The decree further stated:
9. Mother and Father stipulated and agreed that neither will
assert any claim against real estate which the other may own and
which is located in Alexandria, Egypt in any court anywhere.
Further, neither Mother nor Father shall bring any legal action in
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 3 of 12
Egypt the purpose of which being to avoid and have nullified any
provision of this Court’s Final Decree of Divorce.
10. The Court adopts each and every stipulation set forth
above by Mother and Father, and same shall become the Order
of this Court.
Id. at 79-80. The trial court further stated:
12. All stipulations set forth on the record by the parties and
identified by the Court above in this Court’s Findings of Fact are
hereby adopted and made the order of this Court.
Id. at 84. The dissolution decree also imposed a child support obligation of
$360 per week upon Otefi, which subsequently was modified to $461 per week.
[6] Ebrahim filed a motion for relief from judgment. Among other matters,
Ebrahim contended she had limited command of English and was essentially
pressured into accepting the stipulations regarding the parties’ property at the
outset of the final hearing. The trial court denied Ebrahim’s motion. She then
appealed, and this court affirmed the trial court’s ruling. Ebrahim v. Otefi, No.
76A03-1309-DR-368 (Ind. Ct. App. June 30, 2014). We analyzed the record of
the final hearing, along with evidence of Ebrahim’s English proficiency, and
held that although it would have been preferable if the trial court had directly
asked Ebrahim and not her attorney about the stipulations stated by Otefi’s
counsel, “we conclude that [Ebrahim] waived her challenge to the division of
marital assets and liabilities.” Id., slip op. at p. 9.
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 4 of 12
[7] While the appeal was pending, Ebrahim filed an action with authorities in
Egypt to obtain personal property located in an apartment leased or owned by
Otefi.1 In this action, Ebrahim represented that she and Otefi were still married
and that Otefi was squandering marital property. Apparently, Egyptian law
does not recognize the validity of the parties’ divorce in America, and
Ebrahim’s filing permitted the seizure of the items in the apartment. These
items, which were not listed in the parties’ stipulated property settlement or in
the dissolution decree, were worth about $6,000. An Egyptian court also
imposed a sentence of four months in jail upon Otefi in absentia in relation to
Ebrahim’s action, which Otefi became aware of when he went to Egypt to visit
his parents and he had to hire a lawyer there to defend himself.
[8] On January 21, 2015, Otefi filed a motion to modify child support, asserting
that Ebrahim had obtained employment and her childcare costs had decreased.
On January 28, 2015, Otefi filed a verified petition for a rule to show cause why
Ebrahim should not be held in contempt for filing the action in Egypt to obtain
the property in the apartment; Otefi alleged that this action violated the
dissolution decree’s division of property and the parties’ property settlement
agreement.
[9] After conducting a hearing, the trial court refused to hold Ebrahim in contempt
because the dissolution decree did not address the personal property she
1
There was conflicting evidence as to whether Otefi owned or leased the apartment.
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 5 of 12
obtained in Egypt. Also, the trial court did modify Otefi’s child support
obligation but increased, not decreased, it based upon Ebrahim’s child support
worksheet. The trial court also ordered Otefi to pay $750 to Ebrahim’s
attorney. Otefi filed a motion to correct error, which the trial court denied.
Otefi now appeals.
Analysis
[10] At the outset, we acknowledge that Ebrahim has not filed an appellee’s brief.
In such a situation, we need not develop arguments for her and may reverse if
Otefi is able to establish prima facie error. See Vandenburgh v. Vandenburgh, 916
N.E.2d 723, 725 (Ind. Ct. App. 2009). Prima facie error “is error at first sight,
on first appearance, or on the face of it.” Id. However, we are not relieved of
our obligation to correctly apply the law to the facts in the record before
determining whether reversal is required. Id.
I. Contempt
[11] Otefi first contends the trial court erred in refusing to hold Ebrahim in
contempt. A party who willfully disobeys a court’s order may be held in
contempt of court. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012).
It is within the trial court’s discretion to determine whether a party is in
contempt, and we will review its judgment for an abuse of discretion. Id. The
order alleged to have been violated “must have been so clear and certain that
there could be no question as to what the party must do, or not do, and so there
could be no question regarding whether the order is violated.” City of Gary v.
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 6 of 12
Major, 822 N.E.2d 165, 170 (Ind. 2005). Failure to comply with an ambiguous
or indefinite order cannot support a contempt finding. Id.
[12] Otefi argues Ebrahim violated the clear terms of the dissolution decree in
seeking to obtain personal property in Egypt. We conclude, however, that the
dissolution decree was ambiguous with respect to disposition of any personal
property in Egypt. First, the dissolution decree only prohibits Ebrahim from
asserting “any claim against real estate which the other may own and which is
located in Alexandria, Egypt . . . .” App. p. 79 (emphasis added). It does not
contain any prohibition related to making claims against personal property in
Egypt. And, the personal property obtained by Ebrahim in Egypt was not
divided or even mentioned in the dissolution decree or the parties’ settlement
agreement. As such, Ebrahim’s action does not appear to have been filed to
“avoid and have nullified” any part of the dissolution decree. Id. In other
words, the dissolution decree did not clearly prohibit Ebrahim’s actions in
Egypt, and the trial court properly refused to hold her in contempt for allegedly
violating that order.
[13] Otefi focuses upon the second purported stipulation at the final hearing, made
by Ebrahim’s counsel’s agreement with the statement by Otefi’s counsel,
“[Ebrahim] would agree that post-dissolution, she would bring no further claim
in the nation of Egypt for financial benefit or associated with the property of the
parties in the nation of Egypt.” Id. at 96. However, this language, which
arguably would have prohibited attempts by Ebrahim to obtain personal
property in Egypt, was not included in the final dissolution decree. The decree
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 7 of 12
stated that it included “each and every stipulation set forth above,” as well as
“[a]ll stipulations set forth on the record by the parties and identified by the Court
above . . . .” Id. at 79-80, 84 (emphases added). When parties to a dissolution
enter in a property settlement agreement, the agreement must be submitted to
the court for approval and incorporation into the dissolution decree if so
approved, and only at such time does the agreement become enforceable.
Spencer v. Spencer, 752 N.E.2d 661, 663 (Ind. Ct. App. 2001) (citing Ind. Code §
31-15-2-17). Here, the trial court did not incorporate any provisions regarding
personal property in Egypt into the final dissolution decree. Nor did we make
any such holding in Ebrahim’s appeal from the denial of her motion for relief
from judgment. Thus, the purported second stipulation at the final hearing
regarding such property was not enforceable, by a contempt action or
otherwise.
II. Child Support
[14] Next, Otefi contends the trial court erred in increasing his weekly child support
obligation to $498 per week. This amount coincides with the child support
worksheet submitted by Ebrahim at the hearing. We will reverse a trial court’s
child support modification only if it is clearly erroneous. Bogner v. Bogner, 29
N.E.3d 733, 738 (Ind. 2015). In reviewing a support modification, we will
consider only the evidence and the reasonable inferences therefrom favorable to
the judgment. Id.
[15] First, Otefi argues that the trial court erred in accepting Ebrahim’s
representation that her child care costs have increased from approximately $60
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 8 of 12
per week to $150 per week. Per Child Support Guideline 3(E), “[c]hild care
costs incurred due to employment or job search of both parent(s) should be
added to the basic obligation. It includes the separate cost of a sitter, day care,
or like care of a child or children while the parent works or actively seeks
employment.” At the hearing, Ebrahim introduced into evidence a receipt from
a daycare provider that she paid $110 per week for the younger child, and a
separate receipt for afterschool care for the older child showing a cost of $40 per
week, for a total of $150 per week.
[16] In his motion to correct error and on appeal, Otefi contends that the amount of
$150 per week is clearly unreasonable and inconsistent with what Ebrahim
claimed to have paid in child care expenses in 2014 according to her 2014
income tax return. For us to accept Otefi’s argument, however, would require
us to reweigh evidence. Ebrahim submitted documentation that her current
weekly child care expenses total $150. The trial court was permitted to rely
upon such documentation in setting Otefi’s child support obligation.
[17] Otefi’s second argument regarding child support is that the trial court should
have reduced the amount claimed by Ebrahim in weekly child care costs to
account for the fact that she may be eligible to claim a child care tax credit on
her federal income tax return. The possibility of such an adjustment is
mentioned in the Official Commentary to Child Support Guideline 3(E). In
reviewing the record, we discern that Otefi made no such argument regarding
the tax credit in his initial filing with the trial court or during the hearing on the
matter. The sole disputed points at the hearing were the amount of child care
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 9 of 12
expenses Ebrahim incurred and whether Otefi was entitled to a credit for
overnight visits with his children. Otefi first raised the matter of the tax credit
in his motion to correct error. However, a party cannot raise a previously-
available issue for the first time in a motion to correct error. Yater v. Hancock
Cty. Bd. of Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997). Failure to raise
errors that existed at trial may not be remedied in a post-trial motion to correct
error or on appeal. Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1103 (Ind.
Ct. App. 1992). Thus, we decline to address whether the tax credit issue is a
basis for reversing the child support modification.
III. Attorney Fees
[18] The final issue Otefi raises is whether the trial court erred in ordering him to
pay $750 to Ebrahim’s attorney. In its order, the trial court stated it was
ordering Otefi to pay this amount as reimbursement for “defending this action.”
App. p. 16. This would appear to refer to defending the contempt petition, as
the trial court did not give any indication that it was ordering the payment of
attorney fees in relation to the child support modification pursuant to Indiana
Code Section 31-16-11-1. Cf. Whited v. Whited, 859 N.E.2d 657, 665 (Ind.
2007). Given Ebrahim’s failure to file a brief and provide us with any argument
as to why this statute should apply, we will not apply it. 2
2
We additionally note that the trial court did not order Otefi to pay any of Ebrahim’s attorney fees in the
original dissolution decree. It is difficult to discern, especially without any argument from Ebrahim, why the
dissolution attorney fees statute did not support any award of fees in the original decree but does so now.
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 10 of 12
[19] “Indiana adheres to the ‘American Rule’ with respect to the payment of
attorneys’ fees, which requires each party to pay his or her own attorneys’ fees
absent an agreement between the parties, statutory authority, or rule to the
contrary.” Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans.
denied. As noted, it does not appear that the trial court was relying upon the
statutory authority related to dissolution actions in ordering Otefi to pay
attorney fees, and there was no agreement between the parties for him to do so.
That leaves Indiana Code Section 34-52-1-1(b), which allows an award of
attorney fees to a prevailing party when the other litigant has pursued a claim or
defense that is frivolous, unreasonable, or groundless. Id.
[20] On this point, we conclude Otefi has established prima facie error, in that we do
not perceive his contempt petition to have been frivolous, unreasonable, or
groundless. Although Otefi has not prevailed on his contempt claim, we
acknowledge that there was an apparent inconsistency between the stipulations
entered into at the final dissolution hearing and the language contained in the
dissolution decree itself. Although Ebrahim did not technically violate the
dissolution decree and thus cannot be held in contempt, we believe there was a
reasonable basis for Otefi to believe that Ebrahim violated the spirit of the
decree by pursuing an action in Egypt that resulted in her obtaining an
additional $6,000 worth of personal property and in a four-month jail term for
Otefi that he was forced to defend against. There were reasonable grounds for
Otefi to seek to hold Ebrahim in contempt, and as such we reverse the trial
court’s order that he pay a portion of Ebrahim’s attorney fees.
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Conclusion
[21] Because Ebrahim did not violate the plain language of the dissolution decree,
the trial court properly refused to hold her in contempt. There also is no basis
to reverse the trial court’s increase of Otefi’s child support obligation.
However, Otefi has established prima facie error in the award of attorney fees
against him. We affirm the denial of the contempt petition and the
modification of Otefi’s support obligation but reverse the attorney fees award.
[22] Affirmed in part and reversed in part.
Kirsch, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016 Page 12 of 12
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870 F.Supp. 1 (1994)
Lorelyn Penero MILLER, Plaintiff,
v.
Warren CHRISTOPHER, Secretary of State, Defendant.
Civ. A. No. 93-1182(RCL).
United States District Court, District of Columbia.
April 29, 1994.
Traci L. Kenner, U.S. Atty. Office, Tyler, TX, for Sec. of State Warren Christopher.
Donald R. Patterson, Tyler, TX, for Lorelyn Penero Miller.
MEMORANDUM OPINION AND ORDER
LAMBERTH, District Judge.
This matter comes before the court on defendant's motion to dismiss the complaint pursuant to 12(b)(1) of the Federal Rules of Civil Procedure. Upon consideration of the filings of counsel and the relevant law, defendant's motion to dismiss is GRANTED in accordance with this Memorandum Opinion and Order. This case is hereby DISMISSED.
Plaintiff, Lorelyn Penero Miller, was born in the Republic of the Philippines on June 20, 1970. Her mother is a Philippine national, and her father, Charlie Miller, is an American citizen.[1] The birth record reflects, however, that plaintiff was born "illegitimate," and a father's name and nationality does not appear in the record. See Def.'s Mot. to Dismiss, Ex. A.
In November, 1991, when she was twenty-one years old, plaintiff first filed an application for registration and documentation as a United States Citizen with the American Embassy in Manila. The application was denied in March, 1992. This decision was upheld in November, 1992 by Thomas W. Callow, Acting Director of the Office of Citizen *2 Consular Services of the United States Department of State.
Plaintiff initiated this civil action in the United States District Court for the Eastern District of Texas. After the defendant moved to dismiss or, in the alternative, to transfer venue, plaintiff filed an amended complaint adding her father, Charlie Miller, as a co-plaintiff. The district court dismissed the claims of plaintiff Charlie Miller and ordered that the case be transferred to this jurisdiction where venue over Lorelyn Penero Miller's claims would be proper. Lorelyn Penero Miller v. Secretary of State, Warren Christopher, No. 6:93CV39, (Order of E.D.Tex., June 2, 1993).
The Fourteenth Amendment provides, "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const. amend. XIV, § 1. Accordingly, plaintiff does not have a constitutional right under the Fourteenth Amendment to acquire citizenship. Moreover, plaintiff's father, Charlie Miller, has no constitutional right to transmit citizenship. Rogers v. Bellei, 401 U.S. 815, 830, 91 S.Ct. 1060, 1068-69, 28 L.Ed.2d 499 (1971). Plaintiff, therefore, must meet statutory requirements in order to acquire U.S. citizenship.
8 U.S.C. § 1409(a) sets forth the requirements for the acquisition of citizenship by a child born out of wedlock whose father is a U.S. citizen. As originally enacted, the paternity of the child born outside of wedlock to a father possessing U.S. citizenship must have been established by legitimation while the child was under the age of twenty-one. Legitimation could take place under the laws of the child's domicile or that of the father.
In 1986, § 1409(a) was amended and now contains the following provision:
(a) The provisions ... shall apply as of the date of birth to a person born out of wedlock if
(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the U.S. at the time of the person's birth,
(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years
(A) the person is legitimated under the law of the person's residence or domicile,
(B) the father acknowledges paternity of the person in writing under oath, or
(C) the paternity of the person is established by adjudication of a competent court.
8 U.S.C. § 1409(a) (1988).
Individuals such as Lorelyn Penero Miller, who were at least 15, but under 18, as of the date of the 1986 amendment of § 1409(a) may elect to apply either version of § 1409(a). Plaintiff's application was denied for failure to establish her legitimation prior to her twenty-first birthday and for failure to meet the requirements of § 1409(a)(3)-(4).
Plaintiff does not contend that she satisfied the requirements of 8 U.S.C. § 1409(a) for purposes of a grant of U.S. citizenship.[2] Rather, plaintiff alleges that the distinction between "legitimate" and "illegitimate" children is an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See Pl.'s First Am. Compl., ¶ XII, § 1. She therefore requests that the court declare her a citizen of the U.S. See ¶ XVII, § 2.
*3 Defendant alleges, on the basis of the pleadings now before the court, that plaintiff's complaint should be dismissed for lack of subject matter jurisdiction because plaintiff lacks standing to adjudicate such a claim. The law is well settled that the party invoking federal jurisdiction bears the burden of establishing the following essential elements of the constitutional requirement of standing:
1. The plaintiff must have suffered an injury in fact an invasion of a legally protected interest which is concrete and particularized, and actual or imminent;
2. There must be a causal connection between the injury and the conduct complained of; and
3. It must be likely, as opposed to speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).
Defendant does not contest that plaintiff has suffered an injury, nor that the injury was caused by the conduct at issue. Indeed, plaintiff has suffered an injury in that she has been denied U.S. citizenship for failing to meet the statutory requirements of 8 U.S.C. § 1409(a). Furthermore, there is a causal connection between this injury and her complaint that the statute is unconstitutional. However, defendant argues that plaintiff has failed to demonstrate any redressable injury. This court agrees.
In INS v. Pangilinan, the Supreme Court determined that the courts do not have the power to confer citizenship in the absence of statutory authority. The Court stated, "once it has been determined that a person does not qualify for citizenship, ... the district court has no discretion to ignore the defect and grant citizenship." INS v. Pangilinan, 486 U.S. 875, 884, 108 S.Ct. 2210, 2216, 100 L.Ed.2d 882 (1988). Even if this court should conclude that 8 U.S.C. § 1409(a) is unconstitutional, this court could not grant citizenship to plaintiff. As defendant notes, this could only be accomplished by legislative action. Only Congress has the power to confer citizenship to persons not constitutionally entitled to citizenship. Therefore, this court concludes that plaintiff lacks standing because she does not meet the redressability requirement.
Accordingly, it is hereby ORDERED that defendant's 12(b)(1) motion to dismiss is GRANTED. It is further ORDERED that this case is DISMISSED.
It is further ORDERED that the plaintiff's motion for leave to file supplemental memorandum of points and authorities in opposition to defendant's motion to dismiss is GRANTED. The clerk shall also file plaintiff's "Comments on Defendant's Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss" as a surreply.
SO ORDERED.
NOTES
[1] On July 27, 1992, a Texas court entered a "voluntary paternity decree" declaring that Lorelyn Penero Miller is the child of Charlie R. Miller. Ms. Miller was twenty-two years of age at that time. See Pl.'s Mot. for Leave to File Supplemental Mem. of P. & A. in Opp'n to Def.'s Mot. to Dismiss, Ex. 1.
[2] Plaintiff filed a motion for leave to file supplemental memorandum of points and authorities in opposition to defendant's motion to dismiss in which she urges this court to interpret the voluntary paternity decree, supra note 1, which legitimated the plaintiff effective retroactively to her date of birth for the purpose of state law, as establishing the paternity of the plaintiff while she was under the age of eighteen years. The effect, the plaintiff argues, is that she now meets the requirements of § 1409(a)(4)(A). This court, however, agrees with the State Department's conclusion that a child born out of wedlock must be legitimated prior to her eighteenth birthday in order to meet the statutory requirements. See Pl.'s Mot. for Leave to File Supplemental Mem. of P. & A. in Opp'n to Def.'s Mot. to Dismiss, Ex. 2.
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441 F.Supp.2d 363 (2006)
Marta CARRASQUILLO, et al., Plaintiffs
v.
Miguel PEREIRA-CASTILLO, et al., Defendants.
Civil No. 04-1547 (HL).
United States District Court, D. Puerto Rico.
July 31, 2006.
*364 Ivette De-Luna-Colon, Juan G. Nieves-Cassas, Nieves Cassas, De Luna & Feria Cestero, San Juan, PR, for Plaintiffs.
Jo-Ann Estades-Boyer, Prado, Nunez & Associates, PSC, San Juan, PR, Anabelle Quinones-Rodriguez, Department of Justice, San Juan, PR, for Defendants.
OPINION AND ORDER
LAFFITTE, District Judge.
Plaintiff Marta Carrasquillo, her husband Gilberto Rivera-Rivera, and the conjugal *365 partnership formed between them bring this action against Miguel Pereira-Castillo, in his official capacity as the Secretary and Administrator of the Department of Corrections and Rehabilitation and the Corrections Administration; Jorge L. Raices, in his official capacity as Assistant to the Secretary; Caridad Colon-Torres, in her official capacity as Human Resources Officer; Rafael Santiago-Torres, in his official capacity as Sub-Secretary of the Department of Corrections and Rehabilitation; and Norberto Jimenez-Burgos, in both his personal capacity and official capacity as Special Assistant to the Secretary. Plaintiffs bring their action pursuant to 42 U.S.C. § 1983, alleging political discrimination in violation of the First and Fourteenth Amendments of the United States Constitution.[1] Plaintiffs also seek to invoke this Court's supplemental jurisdiction over claims arising under the laws of the Commonwealth of Puerto Rico, specifically for political discrimination in violation of Law No. 100 of June 30, 1959, 29 L.P.R.A. § 146, et seq.; and for damages under Articles 1802 and 1803 of the Civil Code of Puerto Rico, 31 L.P.R.A. §§ 5141, 5142.
Before the Court are Defendants' motion for summary judgment (Dkt. No. 46) and Plaintiffs' opposition to said motion (Dkt. No. 60). For the reasons set forth below, Defendants' motion for summary judgment is granted.
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court will grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). A genuine issue exists if there is sufficient evidence supporting the claimed factual dispute to require a choice between the parties' differing versions of the truth at trial. Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). A fact is material only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining if a material fact is "genuine" the Court does not weigh the facts but, instead, ascertains whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. See also Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).
Once a party moves for summary judgment, it bears the initial burden. Specifically, "`a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] . . . which it believes demonstrate the absence of a genuine issue of material fact.'" Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once this threshold is met, the burden shifts to the nonmoving party. The nonmovant may not rest on mere conclusory allegations or wholesale denials. See Fed. R.Civ.P. 56(e); Libertad v. Welch, 53 F.3d 428, 435 (1st Cir.1995). Instead, the non-moving *366 party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Furthermore, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
To aid the Court in the task of identifying genuine issues of material fact in the record, the District for Puerto Rico has adopted Local Rule 56 (formerly Local Rule 311.12). D.P.R. L.Civ.R 56(b)-(c). Local Rule 56(b) requires that a party moving for summary judgment submit, in support of the motion, "a separate, short, and concise statement of material facts as to which the moving party contends there is no genuine issue to be tried and the basis of such contention as to each material fact, properly supported by specific reference to the record." Id.; see also Leary, 58 F.3d at 751. Further, "[a] party opposing a motion for summary judgment shall submit with its opposition a separate, short and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation . . ." D.P.R. L.Civ.R 56(c). The Court will only consider the facts alleged in the parties' Local Rule 56 statements when entertaining the movant's arguments. Rivera v. Telefonica de Puerto Rico, 913 F.Supp. 81, 85 (D.P.R.1995). "Parties ignore [such rules] at their peril." Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.2000).
In the present case, Plaintiffs do not provide a statement of opposing facts which expressly admits, denies or qualifies each paragraph of Defendants' statement of uncontested material facts. Rather, Plaintiffs filed their own statement of uncontested facts which does not reference or relate to Defendants' statement of uncontested facts. Thus, Plaintiffs have failed to comply with Local Rule 56(c). "Where the party opposing summary judgment fails to comply, the rule permits the district court to treat the moving party's statement of facts as uncontested." Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir.2005) (citing Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42, 46 (1st Cir. 2004); Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 32-35 (1st Cir.2001)). The Court of Appeals for the First Circuit "`has held repeatedly that the district court in Puerto Rico is justified in holding one party's submitted uncontested facts to be admitted when the other party fails to file oppositions in compliance with local rules.'" Fontanez-Nunez v. Janssen Ortho LLC, 447 F.3d 50, 55 (1st Cir.2006) (quoting Torres-Rosario v. Rotger-Sabat, 335 F.3d 1, 4 (1st Cir.2003)). Accordingly, the Court shall deem Defendants' uncontested facts, where supported by the record, as admitted. See D.P.R. L.Civ.R. 56(e).
BACKGROUND
Plaintiff Marta Carrasquillo began working for the Administration of Corrections in 1992 as a clerk. On September 23, 1994, Carrasquillo was promoted on a transitory basis to the position of Investigating Agent I, and was assigned to work in the Auxiliary Secretariat for the Investigation of the Correctional System (hereinafter "SAISC" for its Spanish acronym). During the years 1998-1999, Carrasquillo continued to hold the position of Investigating Agent I and worked under the supervision of Co-Defendant Norberto Jimenez. Jimenez worked as an investigative agent in the SAISC from 1992 through 1999. On March 17, 1999, Carrasquillo was assigned the temporary supervision of the Intelligence Unit of the SAISC during *367 Jimenez's absence from the office. Jimenez resigned from the Department of Corrections and Rehabilitation that year, and Carrasquillo continued to act as supervisor for the Intelligence Unit.
On September 7, 2000, Carrasquillo was promoted to the position of Investigative Agent II. Carrasquillo did not compete for the position of Investigative Agent II but obtained the position through reclassification because her position had undergone substantial change in duties and responsibilities, most notably, the responsibility of supervision had been added to her job duties. On May 11, 2001, Carrasquillo was confirmed as a career employee in her Investigative Agent II position.
The Department of Corrections and Rehabilitation created and approved a classification and compensation plain in 1994 which contains a description of all the positions in the agency. The original plan description for the position of Investigative Agent II does not list supervision as one of the position's duties. Generally, the tasks that Department employees are to perform are contained in a duty sheet. The duty sheet for Carrasquillo in the position of Investigative Agent II provided that she shall perform supervisory duties if required by the Assistant Secretary. Early in 2004, the Department revised its classification and compensation plan concerning the positions of Investigative Agent I and II because the descriptions for the two classes were mistakenly identical. The plan description of Investigative Agent II was revised to include collaborative supervising as an official duty.
In August of 2003, Norberto Jimenez returned to the Department of Correction and Rehabilitation, when he was appointed Special Aide to the Secretary of the Department. Carrasquillo had acted as supervisor of the Intelligence Unit of SAISC since Jimenez had resigned in 1999. After Jimenez' appointment, however, Jimenez assumed the supervision of the SAISC Intelligence Unit. At some point, Jimenez called Carrasquillo into his office and told her that he was in power and could take out or fire anybody he wanted to. Jimenez also ordered Carrasquillo to perform clerical duties until he could hire a secretary and had Carrasquillo's name removed from reports filed by investigative agents. Carrasquillo was not allowed to participate in field operatives or when she was asked to participate in an operative, she was told to show up at an hour after the operatives had concluded. After Jimenez took over the supervision of the Intelligence Unit, Carrasquillo experienced numerous days when she was not provided with any work assignments. Carrasquillo complained to Jimenez that she felt marginalized, harassed, and discriminated against because he had divested her of supervisory functions and assigned her more menial job tasks.
In April of 2004, although Carrasquillo continued to hold the position of Investigative Agent II, she was removed from her office in the Intelligence Unit and relocated to another area of the Department. Carrasquillo was the only employee removed from the Intelligence Unit. Jimenez moved into Carrasquillo's former work space. When Carrasquillo was transferred to the new work area, she was asked to return several items including confidential or official license plates, a radio, a vest, keys to a governmental vehicle, and a gas card for a governmental vehicle. Although Carrasquillo's work location changed, her job title and salary scale was not altered. As a supervisor, Carrasquillo had not been entitled to over-time pay, but after she was divested of supervisory duties, she became eligible to receive such pay.
Carrasquillo is a member of the New Progressive Party (NPP), while Defendant Norberto Jimenez is associated with the *368 Popular Democratic Party (PDP). Carrasquillo claims that her affiliation and activism in the NPP, was well known within the Corrections Administration because she was enlisted in the party's roster, openly participated in political campaigns, worked in raising campaign funds for a mayor of Canóvanas, worked as an electoral officer, regularly attended NPP rallies, and worked tallying votes during election time. Carrasquillo contends that she suffered a de facto demotion and was replaced by Norberto Jimenez, a member of the PDP party and a less qualified employment candidate, on the basis of her membership in the NPP.
DISCUSSION
"The First Amendment protects associational rights. Incorporated with this prophylaxis is the right to be free from discrimination on account of one's political opinions or beliefs." Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004) (citing LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir.1996)). The gravamen of Defendants' motion for summary judgment is their argument that Plaintiffs have failed to establish a prima facie showing of political discrimination. To make a prima facie case of political discrimination a "plaintiff must show that he [or she] engaged in constitutionally protected conduct, and that this conduct was a substantial or motivating factor for the adverse employment decision." Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir.2000). The First Amendment's protection extends to employment actions in which employment changes due to political affiliation, although not as extreme as dismissal, result in working conditions "unreasonably inferior to the norm for the position" at issue. Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir.1989); Concepcion v. Zorrilla, 309 F.Supp.2d 201, 211 (D.P.R. 2004).
Plaintiff Carrasquillo asserts that she engaged in the protected conduct of being an NPP member and activist and that her political affiliation was the motivating factor behind her de facto demotion. Implicit in the threshold element that political affiliation was a substantial or motivating factor in the adverse employment decision "is a requirement that the plaintiff produce sufficient evidence to show the defendant knew of plaintiff's political persuasion." Goodman v. Penn. Turnpike Com'n, 293 F.3d 655, 663 (3d. Cir.2002); Nieves-Hernandez v. Puerto Rico Elec. Power Authority, 2006 WL 1704572 *3 (D.P.R. June 16, 2006) ("For political affiliation to be a motivating factor behind an adverse employment action, those responsible for the deprivation of constitutional rights must have had knowledge of the plaintiff's political affiliation"). In their Local Rule 56(b) statement of uncontested facts Defendants aver and produce sworn affidavits that they did not know the political affiliation of Carrasquillo. Plaintiff does not deny, qualify, or otherwise object to this assertion as required by Local Rule 56(c).[2] Accordingly, the submitted fact that Defendants did not know the political affiliation of Carrasquillo is deemed uncontested. See D.P.R. L.Civ.R. 56(e); Alsina-Ortiz, 400 F.3d at 80 (citing Cosme-Rosado, 360 F.3d at 46); Morales, 246 F.3d at 32-35. Therefore, Plaintiff Carrasquillo has failed to establish a prima facie case of political discrimination because she has not produced sufficient evidence demonstrating that any defendant knew of her political affiliation. See Gonzalez-De-Blasini v. Family Dept., 377 F.3d 81, 86 (1st Cir.2004); Goodman, 293 F.3d at 663; Santiago-Rodriguez v. Rey, 404 F.Supp.2d 400, 404-405 (D.P.R.2005).
*369 Moreover, even if the Court were to consider Plaintiffs' nonconforming supplemental statement of uncontested facts as a viable opposition to Defendants' Local Rule 56(b) statement of uncontested facts, Plaintiff Carrasquillo's political discrimination claim would still fail. In Plaintiffs' noncomplying statement of uncontested facts, Carrasquillo provides that her affiliation with and activism in the NPP, was well known within the Corrections Administration because she was enlisted in the party's roster, participated in political campaigns, worked in raising campaign funds for a mayor of Canóvanas, served as an electoral officer, regularly attended NPP rallies, and worked tallying votes during election time. The Court finds that this assertion is not sufficient to demonstrate a causal connection linking Defendants' allegedly discriminatory acts to Carrasquillo's political beliefs or association.
To establish that protected conduct was a substantial or motivating factor for the adverse employment action requires more than merely "juxtaposing a protected characteristicsomeone else's politicswith the fact that plaintiff was treated unfairly." Padilla-Garcia, 212 F.3d at 74 (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 58 (1st Cir.1990)). Indeed, evidence that a plaintiff is politically active and that a defendant is aware of plaintiffs opposing views is not sufficient to meet this burden. Rodriguez-Rios v. Cordero, 138 F.3d 22, 24 (1st Cir.1998). Instead, to prevail, a plaintiff must point to evidence in the record that would "permit a rational fact finder to conclude that the challenged personnel action occurred and stemmed from a politically based discriminatory animus." Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir.1994).
Carrasquillo has adduced no evidence that Defendants knew that she was a member of the NPP, much less that they acted upon a political animus in implementing the employment actions at issue. Although, a prima facie case for political discrimination may be built on circumstantial evidence, alleging simply that her NPP affiliation and activism was widely known throughout the Corrections Administration because she was registered in the NPP roster, and was active in political campaigns, fund-raising, rallies, and electoral administration is insufficient to survive summary judgment. Gonzalez-De-Blasini, 377 F.3d at 85-86 (holding that plaintiffs' allegations that defendants "must have been aware of her political affiliation because she was a well-known supporter of the NPP in the community, had held a previous trust position under the NPP administration, and was allegedly demoted shortly after the PDP assumed power" was not adequate to show that political affiliation was a substantial factor in the challenged action); Roman v. Delgado Altieri, 390 F.Supp.2d 94, 102-103 (D.P.R. 2005) (stating that it is established in the First Circuit that knowledge of political affiliation cannot be merely established through testimony of having been seen or met during routine campaign activity participation, by having political propaganda adhered to one's car or house, or through the knowledge of third parties) (citing Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 432 (1st Cir.2005) (holding that plaintiffs support for a rival mayor candidate was insufficient to establish political animus on the part of the defendant mayor even in the mayor was aware of such support); Gonzalez-De-Blasini, 377 F.3d at 85-86).
Viewing the facts in the light most favorable to the non-moving partyhere Carrasquillothe Court finds that Plaintiffs have failed to establish that political discrimination was a substantial or motivating factor in the employment actions against Carrasquillo because: (1) Defendants' assertion that they were not aware *370 of Carrasquillo's political affiliation is deemed admitted since it was not properly controverted pursuant to Local Rule 56(c); and (2) Plaintiffs have not proffered anything more than conclusory allegations based upon circumstantial conjecture that Carrasquillo's political affiliation and activism was well known within the Corrections Administration. See Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19 (1st Cir. 2006); Gonzalez-De-Blasini, 377 F.3d at 85-86; Santiago-Rodriguez, 404 F.Supp.2d at 404-405. Since Carrasquillo has failed to show that the adverse employment actions at issue were motivated by or otherwise causally linked to political animus on the part of Defendants, the Court need not reach the issue of whether her employment changes resulted in working conditions "unreasonably inferior."[3]See Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 432 (1st Cir.2005).
CONCLUSION
For the aforementioned reasons, Defendants' motion for summary judgment is granted. As all claims over which the Court had original jurisdiction have been dismissed, the Court declines to exercise supplemental jurisdiction over Plaintiffs' commonwealth claims. See 28 U.S.C. § 1367(c)(3). Judgment shall be entered accordingly.
IT IS SO ORDERED.
NOTES
[1] Plaintiffs originally asserted additional claims pursuant to the Age Discrimination in Employment Act of 1967 (ADEA) and the Fifth Amendment. However, these claims, as well as claims against the Commonwealth and claims for monetary damages against the individual defendants in their official capacities were dismissed by the Court on Defendants' Fed.R.Civ.P. 12(c) motion for judgment on the pleadings. (Dkt. No. 78).
[2] See discussion supra at p. 366.
[3] Similarly, the Court need not address Defendants' additional arguments that Defendants would have reached the same employment decisions irrespective of Carrasquillo's political affiliation; that Carrasquillo lacked a property interest in her supervisory duties;
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UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, WEIS, and ALMANZA 1
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 DEVIN L. GOETSCH
United States Army, Appellant
ARMY 20140623
Headquarters, 19th Expeditionary Sustainment Command
Mark A. Bridges, Military Judge
Lieutenant Colonel Maureen A. Kohn, Staff Judge Advocate
For Appellant: Major Andres Vazquez, Jr., JA; Captain John L. Schriver, JA.
For Appellee: Major A.G. Courie III, JA.
30 September 2015
---------------------------------
SUMMARY DISPOSITION
---------------------------------
WEIS, Judge:
A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of failure to obey a lawful general order and two specifications
of wrongful distribution of a controlled substance, in violation of Articles 92 and
112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 912a [hereinafter
UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
discharge, confinement for five months, forfeiture of $800.00 pay per month for five
months, and reduction to the grade of E-1.
This case is before us pursuant to Article 66, UCMJ. Appellate defense
counsel submitted the case for appellate review on its merits. However, appellant
also personally raises several issues pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), one of which merits discussion and relief.
Background
1
Judge WEIS and Judge ALMANZA both took action while on active duty.
GOETSCH—ARMY 20140623
Appellant’s court-martial adjourned on 8 August 2014. On 13 May 2015, 278
days later, the convening authority took action. This period includes an initial 175
days for the government to transcribe the 85-page record of trial and deliver it to the
military judge for authentication on 30 January 2015. The military judge
authenticated the record the day he received it, but another 33 days elapsed before
the Staff Judge Advocate (SJA) completed her post-trial recommendation (SJAR) to
the convening authority on 4 March 2015. Appellant received a copy of the record
on 10 April 2015, and trial defense counsel took 30 days to submit clemency matters
on appellant’s behalf on 10 May 2015. The SJA’s addendum to the SJAR and the
convening authority’s action were completed three days later, and this court received
the record of trial from Korea on 28 May 2015.
In the clemency matters submitted on behalf of appellant pursuant to Rule for
Courts-Martial [hereinafter R.C.M.] 1105, defense counsel alleged the government
violated the post-trial processing standards recognized by our superior court in
United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and that the delay amounted
to legal error. In her addendum, the SJA disagreed with this assertion and concluded
“[n]o corrective action [was] required” and “no clemency [was] warranted” in
appellant’s case. The record of trial is devoid of any explanation or justification for
post-trial processing time, which took more than nine months.
Dilatory Post-Trial Processing
In Moreno, our superior court established timeliness standards for various
stages of the post-trial and appellate process. 63 M.J. at 142-43. Specifically,
action of the convening authority should be taken no later than 120 days after
completion of the trial. Id. 2 Failure to satisfy any of these standards creates a
“presumption of unreasonable delay,” prompting this court to apply and balance the
four factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972), to determine
whether appellant’s due process rights were violated. See Moreno, 63 M.J. at 136.
The first factor, length of delay, plainly weighs in appellant’s favor. Here,
the post-trial processing standard for the completion of the convening authority’s
action was exceeded by a significant margin. We therefore proceed to the remaining
three factors, beginning with “[r]easons for the delay.” Id. Here, the government
has offered none and we will not speculate without more. The third factor, assertion
of the right to a timely review and appeal, also weighs in appellant’s favor. Id. at
138. Defense counsel specifically requested speedy post-trial processing in a
memorandum to the SJA on 5 October 2014, more than seven months before the
process was ultimately completed.
2
Two additional standards—the time the government takes to deliver the record of
trial to this court and timeliness of appellate review before this court—are not
relevant here. Moreno, 63 M.J. at 142-43.
2
GOETSCH—ARMY 20140623
However, despite the delays, appellant’s assertion of this issue before the
convening authority and this court, and the absence of any explanation by the
government for its dilatory processing, appellant is still not entitled to relief
pursuant to Moreno. Appellant did not make any effort, let alone demonstrate, that
he suffered any prejudice as a result of the delay, and we find this absence
outweighs the first three factors to a degree that we can confidently conclude his due
process rights were not violated. Id. at 138. Additionally, while the post-trial delay
here is excessive, it is not “so egregious that tolerating it would adversely affect the
public’s perception of the fairness and integrity of the military justice system.”
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Nonetheless, appellant
is not foreclosed from relief for the government’s delays.
Even in the absence of actual prejudice from unreasonable post-trial
processing, this court is still authorized to grant relief for excessive delay in our
assessment of the appropriateness of appellant’s sentence pursuant to Article 66(c),
UCMJ. See United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002); United States
v. Collazo, 53 M.J. 721, 727 (Army Ct. Crim. App. 2000). Here, a delay of more
than nine months to process an 85-page record of trial is excessive and warrants
relief. As such, we will provide relief in our decretal paragraph below.
Conclusion
The findings of guilty are AFFIRMED. After considering the entire record
and those matters personally raised by appellant pursuant to Grostefon, 12 M.J. 431,
we affirm only so much of the sentence as provides for a bad-conduct discharge,
confinement for four months, forfeiture of $800.00 pay per month for four months,
and reduction to the grade of E-1. All rights, privileges, and property of which
appellant has been deprived by virtue of that portion of his sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).
Senior Judge HAIGHT and Judge ALMANZA concur.
FOR THE COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
3
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144 Ga. App. 594 (1978)
241 S.E.2d 477
HIGHLAND
v.
THE STATE.
55074.
Court of Appeals of Georgia.
Submitted January 4, 1978.
Decided January 24, 1978.
Guy B. Scott, Jr., for appellant.
Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
The defendant was observed driving in an illegal manner suggesting intoxication; was stopped and, when it appeared he was in fact drunk, was arrested and a tow car sent to remove his vehicle, which was at that time parked on the side of the highway. In accordance with departmental policy the police officers inventoried the car prior to having it removed and upon opening the trunk saw the stock of a sawed-off shotgun. The appellant was eventually indicted, tried and convicted for driving under the influence and for possessing an illegal weapon.
This appeal raises the sole question of whether the decision in Pierce v. State, 134 Ga. App. 14 (213 SE2d 162) should be modified. In Pierce, as here, a defendant was placed under arrest for driving under the influence of intoxicants, his car was impounded, an inventory search made, and contraband, for possession of which the defendant was on trial, was then located. These facts were held to distinguish the Pierce case from Dunkum v. State, 138 Ga. App. 321, 325 (226 SE2d 133) in that in Dunkum the car was parked in a private parking lot and did not need to be removed, whereas in Pierce (and also in this case) the car could not be left abandoned on the roadside. Newman v. State, 237 Ga. 376, 379 (228 SE2d 790) makes the additional point that warrantless inventory searches are to be distinguished from warrantless probable cause *595 searches. "When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars' contents. These procedures have been widely sustained as reasonable under the Fourth Amendment." South Dakota v. Opperman, 428 U. S. 364. We conclude that when a driver is arrested and removed from his vehicle, and the vehicle is on a highway or other public property, and there is no third person present to whom it is or might properly be turned over, or for some other sufficient reason a decision to impound it is properly made, and where in connection with such impoundment an "inventory search" is a recognized and routine procedure, contraband which appears in plain view in the course of such inventory is properly seized, and may be introduced in evidence on a subsequent trial for its possession. We note in passing that it does not appear from the record here whether or not the car trunk was locked, nor does it appear in the opinion in Pierce, supra. In the Opperman case, the contraband was found in an unlocked glove compartment, and Justice Marshall, in his dissent, specially noted that the locked trunk was not searched.
Judgment affirmed. Smith and Banke, JJ., concur.
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466 N.E.2d 1379 (1984)
Paul HARRINGTON, Petitioner-Appellant,
v.
STATE of Indiana, Respondent-Appellee.
No. 1-284A61.
Court of Appeals of Indiana, First District.
August 14, 1984.
Rehearing Denied September 27, 1984.
*1380 Susan K. Carpenter, Public Defender, Kathryn Kelley, Deputy Public Defender, Indianapolis, for petitioner-appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for respondent-appellee.
RATLIFF, Judge.
STATEMENT OF THE CASE
Paul Harrington appeals from the denial of his petition for post-conviction relief under Indiana Rules of Procedure, Post-Conviction Remedy Rule No. 1. We affirm.
FACTS
On October 24, 1975, Harrington, who was represented by counsel, pleaded guilty to exerting unauthorized control over a motor vehicle,[1] and was sentenced to the Indiana State Farm for one (1) year[2] with credit for eighty-two days served in jail. He has served the sentence.
Harrington contends the trial judge, at the guilty plea hearing, failed to advise him of the matters required by Indiana Code section 35-4.1-1-3.[3] No record of the guilty plea hearing is available because the tape recording thereof was destroyed by the trial court's order in 1978 after Harrington had served his sentence.[4]
*1381 Harrington filed his petition for post-conviction relief on May 12, 1983, more than seven and one-half years after his guilty plea was entered. The trial court, at the hearing on his petition, indicated the petition would be granted unless the state sustained its defense of laches. The hearing, therefore, was limited to the issue of laches, and the trial court denied the petition on the basis of laches. Further facts are stated in our discussion of the issue.
ISSUE
The sole issue presented for our determination is whether the trial court erred in denying Harrington's petition for post-conviction relief on the basis of laches.
DISCUSSION AND DECISION
In Twyman v. State, (1984) Ind., 459 N.E.2d 705, our supreme court overruled Stutzman v. State, (1981) Ind. App., 427 N.E.2d 724, trans. denied (1982), which had held that once the defense of laches is raised by the state, the post-conviction petitioner must explain his delay in filing his petition. Rather, as our supreme court recognized in Twyman, laches is an affirmative defense which the state must plead and prove at an evidentiary hearing upon the issue. Here, although the state did not plead laches as an affirmative defense,[5] the issue was tried without objection. Thus, there is no question concerning the state's failure to plead laches as an affirmative defense because the issue was tried by consent and the state's answer is deemed amended to raise the issue. Indiana Rules of Procedure, Trial Rule 15(B).
Our concern is limited to whether or not the evidence is sufficient to establish the state's defense of laches. In determining this issue, like any other sufficiency question, we will not reweigh the evidence or determine credibility of witnesses, instead we look only to that evidence most favorable to the judgment, together with all reasonable inferences flowing therefrom. If, from that viewpoint, there is evidence of probative value which supports the trial court's judgment, we will affirm that judgment. Springer v. State, (1984) Ind., 463 N.E.2d 243; Mack v. State, (1983) Ind., 457 N.E.2d 200; Henson v. State, (1979) 271 Ind. 325, 392 N.E.2d 478.
"[Laches] is neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done." Twyman, 459 N.E.2d at 712, quoting Frazier v. State, (1975) 263 Ind. 614, 616-17, 335 N.E.2d 623, 624. It is an implied waiver resulting from knowing acquiescence in the conditions and a neglect for an unreasonable length of time to assert a right, resulting in prejudice to the opposing party. Twyman. The question of laches is to be determined from a consideration of the facts and circumstances in each case. Twyman; Frazier. Mere lapse of time, although a factor, is not enough to constitute laches. Id. There must be both unreasonable delay and prejudice to the opposing party. Twyman; Mottern v. State, (filed August 1, 1984) Ind. App., 466 N.E.2d 488 (No. 1-184-A-32).
The unreasonable delay factor clearly is established here. Harrington knew he pleaded guilty to the charge and that he was sentenced thereon in October 1975. He waited until November 1982, after he had been adjudged an habitual offender in December of 1981, to contact a lawyer about his 1975 conviction, and did not file his post-conviction petition until May 1983. The record further shows that Harrington was not without experience with the criminal justice system in that he had felony convictions in Florida in 1973, and had been convicted of escape in Putnam County in 1976. Consequently, if the state established *1382 prejudice, the trial court's finding of laches can be sustained.
In Mottern, we held that the state's failure to offer any evidence of prejudice such as unavailability of its witnesses, records, test results, or any other reason why it would be impossible or extremely difficult to present its case at that time was fatal to its laches defense. On the other hand, here the state produced evidence that Warren Durbin, the accomplice who gave a statement to the sheriff which was the state's basis for probable cause, was deceased; that the sheriff's files pertaining to this case could not be located; and that the deputy sheriff who was the chief investigating officer no longer had any independent recollection of the case. Under these circumstances, the state obviously was prejudiced by the more than seven and one-half year delay in instituting the post-conviction proceeding.
It is the state's burden to prove its defense of laches by a preponderance of the evidence. Twyman. The trial court found the state had discharged that burden. We hold the evidence is sufficient to sustain that determination and that the trial court's decision that Harrington's post-conviction remedy was barred by laches should be affirmed.
Judgment affirmed.
ROBERTSON, J., concurs.
YOUNG, J., sitting by designation, concurs.
NOTES
[1] Ind. Stat. Ann. section 10-3036(1) (Burns, 1975 Supp.). Since repealed. For present law see Indiana Code section 35-43-4-2, the statute defining the offense of theft.
[2] Ind. Stat. Ann. section 10-3039(6), (Burns, 1975 Supp.), since repealed.
[3] "Indiana Code section 35-4.1-1-3 Defendant to be advised by court
Sec. 3. Defendant to be advised by court. The court shall not accept a plea of guilty from the defendant without first addressing the defendant and
(a) determining that he understands the nature of the charge against him;
(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;
(c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;
(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;
(e) informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby."
[4] Indiana Rules of Procedure, Criminal Rule 10, requires the trial court to make a record of guilty pleas in felony cases and provides that "[s]uch record shall be either transcribed promptly or securely preserved by the court during the maximum term of imprisonment provided by the judgment so that a bill of exceptions can be prepared if required."
Since Harrington had served the maximum period of imprisonment provided by the judgment, it was no longer necessary for the trial court to keep the guilty plea recording.
[5] The state did file a motion to dismiss on the ground of laches. It did not affirmatively plead laches in its answer to the petition for post-conviction relief.
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 6, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 14-6039
OMERO CORDOVA, a/k/a
Omar L. Cordova,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:13-CR-00137-HE-1)
J. Lance Hopkins, Tahlequah, Oklahoma for Appellant.
David McCrary, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, and Edward J. Kumiega, Assistant United States Attorney, with him on the
brief), Oklahoma City, Oklahoma, for Appellee.
_________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
________________________________
MORITZ, Circuit Judge
________________________________
While executing a search warrant at Omero Cordova’s home, law enforcement
found marijuana, firearms, and drug paraphernalia, and Cordova admitted ownership of
the items. Charged with various offenses, Cordova sought to suppress the evidence
against him. Although the district court agreed the affidavit failed to provide probable
cause, it denied Cordova’s motion to suppress under the good faith exception to the
warrant requirement. The court also rejected Cordova’s separate motion to suppress his
statements, concluding his confession was voluntary. A jury subsequently convicted
Cordova of all six charges against him. Cordova appeals, challenging the district court’s
denial of his motions to suppress the evidence and his statements.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. We conclude the
affidavit contained so few facts implicating either Cordova or his current home that a
reasonable officer could not have relied on the warrant in good faith. Because the
government conceded at oral argument that if the good faith exception doesn’t apply then
Cordova’s statements must also be suppressed as fruit of the poisonous tree, we need not
address Cordova’s second issue and we remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2012, Chris Gabeau—an Oklahoma City police detective assigned
to a Federal Bureau of Investigation task force—sought a search warrant for Omero
Cordova’s home at 2412 S.W. 78th Street, Oklahoma City.
The first three pages of Detective Gabeau’s affidavit contain general information
about Gabeau, his qualifications and experience, and his conclusions regarding the traits
and habits of drug dealers. The substantive portion of the affidavit begins on page four
and is entitled “Details of Investigation.” The first six paragraphs of those details contain
information from an unidentified confidential source interviewed in October 2011, a year
2
before the warrant’s execution. The confidential source self-identified as a member of the
Juarito gang, which is “heavily involved in narcotics trafficking” in the Oklahoma City
area. The unnamed informant detailed specific sales of methamphetamine between the
gang and “one of [its] main suppliers,” Christopher Billingsley, within the previous two
months. Oklahoma County Search Warrant Aff., Doc. 25-2, at 4. Notably, Cordova’s
name does not appear in the first six paragraphs of the substantive portion of the affidavit
and the affidavit does not identify him as a member of the Juarito gang or as a participant
in any of the sales the informant described.
The affidavit then switches gears and discusses an event that occurred some 21
months before the warrant’s execution. According to the affidavit, state troopers
discovered 70 pounds of marijuana in a vehicle bound for Oklahoma City in January
2011. The affidavit does not indicate who was driving the vehicle at the time of the traffic
stop but states that law enforcement learned the marijuana “was supposed to be delivered
to 8008 S Youngs Blvd to a subject in a black [C]orvette.” Aff. at 4 (emphasis added).
According to the affidavit, Cordova had listed 8008 S. Youngs Boulevard in Oklahoma
City as his address on an October 2011 police form on which he reported a burglary. The
affidavit concludes this paragraph by indicating that on an unspecified date, officers
observed a black Corvette registered to Christopher Billingsley parked outside the
Youngs Boulevard address.
Turning to somewhat more recent events, the affidavit detailed that in January
2012, approximately nine months before the warrant’s execution, Cordova purchased a
residence at 2412 S.W. 78th Street, “using Cordova’s mother . . . to actual [sic] purchase
3
the home.” Aff. at 4-5. The affidavit also indicated Cordova’s mother purchased the
home from a member of a family known by law enforcement to be involved in selling
methamphetamine, cocaine HCL, and marijuana. The affiant further advised that “it is
not uncommon” for drug traffickers to conceal vehicle, cell phone, and home purchases
by using family members as straw buyers to avoid law enforcement detection.
But the affiant provided no specific information regarding whether or when the
individual who sold the home had been involved in drug trafficking, except to say that the
affiant had reviewed “several documents from other agencies including but not limited to:
Oklahoma City Police Department, Drug Enforcement Agency and so forth stating
numerous surveillance hours, wire interceptions, [and] Confidential Informants
purchasing controlled substance from the [] family DTO.” Aff. at 5.
The affidavit also noted that law enforcement sporadically surveilled 2412 S.W.
78th Street during the summer and fall of 2012. Most notably, the affidavit indicated that
approximately four months earlier, during the week of June 4, 2012, law enforcement
officers watched as Billingsley drove up to the home in his black Corvette followed by a
white Nissan Titan registered to Cordova. According to the affidavit, Billingsley got out
of the car, opened the garage door, and then drove into the garage, shutting the door
behind him. While the affidavit indicates that the Titan’s “driver” left in a third car while
Billingsley remained, it doesn’t identify the driver of the Titan. Nor does it indicate
whether anyone else was at the residence or how long Billingsley remained there.
Additionally, the affidavit identified five other dates in the three preceding
months—July 26, July 30, September 21, September 24, and October 15—on which
4
officers surveilled the 78th Street property. Those officers noted only that vehicles
registered to Cordova sometimes parked at the residence and that, on two occasions, a
vehicle not registered to him parked at the house. Finally, the affidavit noted Billingsley
had three non-drug convictions, two in 1993 and one in 1995. The affidavit identified one
prior conviction for Cordova—an undated conviction for possessing a controlled
substance.
Based on this information, on October 16, 2012, an Oklahoma state court judge
found probable cause to issue a search warrant for Cordova’s 78th Street home. State and
federal law enforcement officers executing the warrant the following day discovered four
firearms; more than $12,000 in cash; 123.7 grams of marijuana; and various items
associated with distribution, including a box of plastic bags, a heat sealer, a digital scale,
and a ledger.
Officers triggered Cordova’s security system as they entered the residence,
prompting the monitoring company to contact Cordova, who returned home. Officers
immediately detained Cordova and a detective advised him that officers wanted to speak
to him about guns and marijuana they had discovered in the search of his home. The
detective also asked Cordova to contact his wife and request that she return home so
officers could “determine [her] involvement.” Jackson v. Denno Hr’g Tr., Doc. 116, at
13. Cordova responded that “[e]verything in the house [was his]”—a statement he
reiterated after receiving his Miranda rights and signing a waiver. Id. at 13, 19, 23-24.
The United States indicted Cordova for distributing marijuana, possessing more
than 130 grams of marijuana with intent to distribute, possessing firearms in furtherance
5
of a drug trafficking crime, maintaining a place for using and distributing marijuana,
making a false statement to an Internal Revenue Service Agent, and money laundering.
Cordova moved to suppress the physical evidence and his incriminating statements,
arguing the affidavit did not provide probable cause for the warrant. The district court
agreed but concluded the good faith exception applied and declined to suppress the
evidence. The district court also denied Cordova’s motion to suppress his confession after
rejecting Cordova’s argument that officers coerced his confession by impliedly tying his
wife’s liberty to Cordova’s cooperation.
After a jury convicted Cordova as charged, the district court sentenced him to 156
months’ imprisonment. This appeal followed.
DISCUSSION
Cordova argues Gabeau’s affidavit contained so little indicia of probable cause
that no reasonable officer would have relied on it and that the district court erred in ruling
otherwise. Cordova further contends police coerced his confession and that the district
court should have suppressed his statements. Because the government did not cross-
appeal the district court’s determination that the warrant lacked probable cause, we
initially consider whether the officers could have reasonably relied on the warrant in
good faith—a question of law we review de novo. See United States v. Tuter, 240 F.3d
1292, 1299 (10th Cir. 2001).
Although a search conducted pursuant to a warrant not supported by probable
cause violates the Fourth Amendment, evidence discovered during such a search need not
be suppressed so long as “‘an officer acting with objective good faith obtain[ed] a search
6
warrant from a detached and neutral magistrate and the executing officers act[ed] within
its scope.’” See id. at 1298-99 (quoting United States v. Nolan, 199 F.3d 1180, 1184
(10th Cir. 1999)). But this good faith exception doesn’t apply if the affidavit was “so
lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable.” See United States v. Leon, 468 U.S. 897, 922-23 (1984) (internal
quotations and citations removed). An officer can’t rely in good faith on an affidavit that
is “bare bones” or “devoid” of factual support. United States v. Corral-Corral, 899 F.2d
927, 934 (10th Cir. 1990).
In arguing the affidavit in this case lacked any indicia of probable cause, Cordova
focuses on the staleness of the information contained in the affidavit, particularly the
information that 21 months before the affidavit’s execution, officers learned that 70
pounds of marijuana was slated to be delivered to “a subject in a black [C]orvette” parked
in front of Cordova’s former residence. He also challenges the affidavit’s failure to
supply a nexus between criminal activity and the place to be searched—his current
residence at the time the warrant was executed.
The government concedes that the information supporting the warrant was dated,
but argues it was refreshed by more recent information implicating Cordova’s current
residence in an ongoing and continuous drug trafficking enterprise. Similarly, the
government maintains that even though the marijuana was destined for a vehicle that
Cordova did not own, which was to be parked in front of a house where Cordova no
longer lived, the affidavit provided a nexus with his current residence because of
Cordova’s “ongoing relationship” with Billingsley and the fact that Cordova used a straw
7
purchaser to buy his current home from someone involved in drug trafficking. Aplee. Br.
at 15-16.
But the parties’ specific disputes obfuscate a more significant problem: while the
affidavit may have provided some indication of Billingsley’s involvement in an on-going
drug enterprise and some weak information regarding Cordova’s association with
Billingsley, it was devoid of any facts supporting the inference that Cordova or his home
were involved with Billingsley’s—or anyone else’s—ongoing drug enterprise.
In arguing for the good faith exception, the government relies primarily on a 21-
month-old transaction involving a drug delivery that not only never occurred, but that
even if it had occurred, was to involve delivery to an unnamed subject in a vehicle
registered to Billingsley, parked in front of Cordova’s former home. The affidavit
contained no information indicating the delivery was to be made to Cordova or to
Cordova’s current address. Nor did it indicate that Cordova assisted in arranging the two-
year-old transaction, knew the transaction was set to occur, or was even at his former
home at the slated delivery time.
While dated information of an ongoing criminal enterprise may be relevant to a
probable cause analysis, see United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986),
the isolated fact of an attempted drug delivery to a car parked in front of Cordova’s
former house 21 months before the warrant was issued provides neither evidence of
Cordova’s participation in such an ongoing enterprise nor evidence that his former home
was being used in such an enterprise. In short, the nearly two-year-old information
implicating Billingsley—but not Cordova or his home—is of little assistance to the
8
government even under the deferential good faith analysis. See United States v.
Campbell, 603 F.3d 1218, 1233 (10th Cir. 2010) (concluding that although affidavit
contained some dated information, officers did not unreasonably rely on warrant because
affidavit recounted defendant’s gang-related activity and criminal activity spanning nine
years); United States v. Craig, 861 F.2d 818, 822-23 (5th Cir. 1988) (finding sufficient
indicia of probable cause for reasonable reliance when affidavit provided evidence that
defendant sporadically engaged in criminal activity over a thirteen-year period); see also
United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004) (concluding affidavit’s
information was not stale when evidence demonstrated defendant’s ongoing criminal
activity from 1999 to 2001).
As one of our sister circuits has explained, the use of a residence in a drug
enterprise “is not inherently ongoing,” but rather exists on a continuum from a single use
of the home in dealing drugs to the use of the home as a “drug den.” See United States v.
Hython, 443 F.3d 480, 485-86 (6th Cir. 2006). At best, the affidavit here provided
evidence of a single failed transaction slated to occur in front of Cordova’s former home
21 months before law enforcement sought a warrant for Cordova’s current home.
Because this stale information cannot support a conclusion that Cordova’s current home
was an operation base for ongoing criminal activity, we conclude a reasonable officer
would have accorded the warrant’s keystone piece of information little to no weight.
The government also relies heavily on what it characterizes as Billingsley’s “free
access” to Cordova’s current home. But this characterization considerably overstates the
affidavit’s assertions. The single connection the affidavit makes between Billingsley and
9
Cordova’s current home involves an event that occurred four months prior to the
affidavit’s execution. Specifically, in June 2012, law enforcement officers observed
Billingsley drive up to Cordova’s current home followed by an individual in a vehicle
registered to Cordova. The affidavit indicates that Billingsley opened the garage, drove
inside the garage, and shut the door. Nothing in the affidavit indicates Billingsley had
unfettered access to the interior of the home. Further, even coupled with the dated
information of Billingsley’s attempted drug transaction in front of Cordova’s former
home, this single observation falls short of supporting even an inference that Billingsley
was using Cordova’s current residence as a drug den for ongoing trafficking activities.
Put simply, the government’s argument relies largely on two pieces of
information. One is not only dated but fails to implicate either Cordova or Cordova’s
former residence, let alone the place for which the warrant was sought. The other, while
at least involving the place for which the warrant was sought, is an isolated incident that
fails to show Cordova allowed Billingsley to use his home for purposes of Billingsley’s
drug enterprise. These two isolated incidents not only fail to provide probable cause but,
even when considered with the information discussed below, they fail to provide any
indicia of probable cause.
What remains of the government’s argument rests on the affidavit’s suggestion
that Cordova used his mother as a “straw purchaser” for his home to avoid discovery of
his drug dealings. While we defer to law enforcement’s expertise on whether innocent
facts might indicate criminal activity, that deference is not without its limits. The
affidavit indicates that it is common for drug traffickers to use family members to conceal
10
large purchases, and then simply states that Cordova’s mother purchased his current
home. Thus, the affidavit implies without concluding that Cordova used his mother as a
straw purchaser to conceal the purchase. But without other information implicating
Cordova or his home in criminal activity, the officer’s suggestion that Cordova engaged
in an activity sometimes associated with criminals is sheer speculation and of minuscule
value.
Finally, the government tacitly acknowledges that the affidavit’s remaining
information doesn’t substantially further its cause. While the affidavit identifies
Billingsley’s prior criminal history, that history is quite dated—occurring in the mid-
90s—and was unrelated to drug activity. Even more to the point, the affidavit identified
only a single prior conviction for Cordova—an undated conviction for mere possession,
not distribution. Cf. United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972) (noting
that the value of a “mere isolated violation” diminishes quickly whereas evidence of a
course of conduct does not); see also United States v. Potts, 586 F.3d 823, 830 (10th Cir.
2009) (stating that information about possessing child pornography was not stale because
such material is likely to be “hoard[ed]”). Similarly, the government doesn’t even suggest
there is any significance to the affidavit’s only real reference to what the district court
termed “more recent matters”—namely, law enforcement’s surveillance of Cordova’s
current residence on approximately seven days over a five-month period. As the district
court pointed out, that surveillance was less than enlightening, revealing only officers’
“verif[ication] Mr. Cordova’s car was parked in his own driveway.”
While the good-faith exception is broad, it is not boundless. Boiled down, the
11
affidavit at issue here indicated nothing more than that a high-volume drug delivery was
set to be made to a vehicle parked in front of Cordova’s former home nearly two years
before officers sought a warrant for his current home and that one party to that drug deal
was present at Cordova’s current residence on one occasion four months before the
warrant was executed. Not only does this information fail to provide probable cause, it is
so removed from implicating Cordova or his current residence that it amounts to nothing
more than a hunch. See United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004)
(pointing out that while a court must look at the totality of the circumstances rather than
engage in a “divide-and-conquer” analysis, it may not “arrive at probable cause simply by
piling hunch upon hunch” (internal citation and quotation removed)).
CONCLUSION
Given the sparse connection between Cordova’s current home and ongoing or
recent criminal activity, we conclude officers acted unreasonably in relying on the
affidavit and we reverse the district court’s ruling. And because the government conceded
at oral argument that if we concluded officers did not rely on the affidavit in good faith
then Cordova’s subsequent statements were fruit of the poisonous tree, we also reverse
the district court’s decision denying Cordova’s motion to suppress his statements.
12
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PATSY T. CRANFILL,
Plaintiff-Appellant,
v.
WINSTON-SALEM HOUSING AUTHORITY;
BOARD OF COMMISSIONERS OF
No. 95-2907
WINSTON-SALEM HOUSING AUTHORITY;
ARTHUR S. MILLIGAN, JR.,
Individually and as Executive
Director of the Housing Authority
of the City of Winston-Salem,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
William L. Osteen, Sr., District Judge.
(CA-94-349-6)
Submitted: July 23, 1996
Decided: August 1, 1996
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Gary Vannoy, VANNOY, MOORE, COLVARD, TRIPLETT &
FREEMAN, North Wilkesboro, North Carolina; James H. Early, Jr.,
Winston-Salem, North Carolina, for Appellant. Anthony H. Brett,
Allan R. Gitter, WOMBLE, CARLYLE, SANDRIDGE & RICE,
P.L.L.C., Winston-Salem, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Patsy T. Cranfill appeals from the district court's order granting
judgment in favor of Defendants and dismissing her action claiming
violations of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C.A. §§ 621-34 (West 1985 & Supp. 1995), and 42
U.S.C. § 1981 (1988); due process; the Employee Retirement Income
Security Act, 29 U.S.C. § 1140 (1988); and various state claims aris-
ing out of her employment with and termination of employment with
Defendant Housing Authority of the City of Winston-Salem (Housing
Authority). Specifically, Cranfill appeals from the district court's
grant of summary judgment relative to four claims: (1) violation of
her right to due process under the Fourteenth Amendment to the
United States Constitution; (2) intentional discrimination on the basis
of her race (white); (3) intentional discrimination on the basis of her
age (60); and (4) discrimination in violation of the public policy of
the State of North Carolina. Our review of the record and the district
court's detailed and cogent opinion discloses that this appeal is with-
out merit. For the reasons set forth below, we affirm the district
court's grant of summary judgment on the four issues Cranfill raises
on appeal.
Cranfill first claims that she was denied due process as to her
employment termination because the pre-termination hearing she was
offered--and which she refused--was to be conducted by the same
individual who had suspended her. We find that the district court
properly granted summary judgment on this claim. See Boston v.
2
Webb, 783 F.2d 1163, 1166 (4th Cir. 1986); DeSarno v. Department
of Commerce, 761 F.2d 657, 660 (D.C. Cir. 1985).
Cranfill's § 1981 claim relating to the selection of a black female
to the position of Deputy Executive Director of the Housing Authority
is without merit because even assuming that Cranfill established a
prima facie case of discrimination, we find that the district court prop-
erly found that she failed to rebut the legitimate, nondiscriminatory
reasons the Housing Authority established for selecting the other indi-
vidual. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07
(1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254-56 n.10 (1981); Conkwright v. Westinghouse Elec. Corp., 933
F.2d 231, 234-35 (4th Cir. 1991).
Likewise without merit is Cranfill's ADEA claim that her termina-
tion was age motivated. While we agree with the district court's find-
ing that Cranfill established a prima facie case of employment
discrimination as to this claim,* we further agree that she failed to
rebut the legitimate, nondiscriminatory reason Defendants proffered
to support Cranfill's termination. See Burdine , 450 U.S. at 254-56;
Conkwright, 933 F.2d at 234-35. Accordingly, we cannot say that the
district court's finding of non-discrimination was clearly erroneous.
Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985).
Finally, given that Cranfill's federal claims are without merit, we
find that the district court properly dismissed her claim of discrimina-
tion in violation of North Carolina public policy. See North Carolina
Dep't of Correction v. Gibson, 301 S.E.2d 78, 82 (N.C. 1983).
We therefore affirm the dismissal of this action on the reasoning
of the district court. Cranfill v. Winston-Salem Housing Authority,
No. CA-94-349-6 (M.D.N.C. Sept. 29, 1995). We dispense with oral
argument because the facts and legal contentions are adequately
_________________________________________________________________
*See O'Connor v. Consolidated Coin Caterers Corp., ___ U.S. ___,
64 U.S.L.W. 4243 (U.S. April 1, 1996) (No. 95-354); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
3
presented in the materials before the Court and argument would not
aid the decisional process.
AFFIRMED
4
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MANDATE
THE STATE OF TEXAS
TO THE 73RD JUDICIAL DISTRICT COURT OF BEXAR COUNTY, GREETINGS:
Before our Court of Appeals for the Fourth District of Texas on April 15, 2015, the cause upon appeal to revise
or reverse your judgment between
In the Interest of B.S., Appellant
V.
No. 04-15-00002-CV and Tr. Ct. No. 2014-PA-00206
was determined, and therein our said Court of Appeals made its order in these words:
In accordance with this court’s opinion of this date, the trial court’s
order terminating appellant’s parental rights is AFFIRMED. It is ORDERED
that no costs of appeal be taxed against appellant as he qualifies as indigent.
James Peplinski’s motion to withdraw as counsel is GRANTED.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.
WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of
Texas, with the seal of the Court affixed and the City of San Antonio on June 24, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853
BILL OF COSTS
TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO
No. 04-15-00002-CV
In the Interest of B.S.
v.
(NO. 2014-PA-00206 IN 73RD JUDICIAL DISTRICT COURT OF BEXAR COUNTY)
TYPE OF FEE CHARGES PAID BY
Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00
Court costs in this cause shall be paid as per the Judgment issued by this Court.
I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF
TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of
THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and
payments, in the above numbered and styled cause, as the same appears of record in this office.
IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for
the Fourth District of Texas, this June 24, 2015.
KEITH E. HOTTLE, CLERK
Cynthia A. Martinez
Deputy Clerk, Ext. 53853
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85 So.3d 435 (2011)
Sean G. CASEY
v.
Jonice Dorriety CASEY.
No. 2090371.
Court of Civil Appeals of Alabama.
July 29, 2011.
Certiorari Denied December 9, 2011 Alabama Supreme Court 1101311.
*437 John L. Jernigan III and Edward L. McMillan IV of Jernigan & McMillan, P.C., Brewton, for appellant.
William R. Strokes, Jr., of Strokes & Strokes, P.C., Brewton, for appellee.
On Application for Rehearing
PITTMAN, Judge.
This court's opinion of March 4, 2011, is withdrawn, and the following is substituted therefor.
Sean G. Casey ("the former husband") appeals from a judgment of the Escambia Circuit Court modifying his visitation privileges with the parties' child and awarding attorney's fees to Jonice Dorriety Casey ("the former wife").
The former husband and the former wife were married in 1999; in 2000, the former husband reentered military service and was temporarily transferred to Florida. During that time, the former wife resided in Atmore and waited for the former husband to receive a permanent assignment; the parties' child was born in September 2000. The parties never reunited, and, in 2003, they decided to proceed with an uncontested divorce. Although the divorce documents were prepared in 2003, the divorce judgment was not entered until December 2006, in part because the former husband had been sent overseas. The divorce judgment incorporated an agreement of the parties; that judgment awarded physical custody of the parties' child to the former wife, awarded the former husband liberal visitation, and ordered the former husband to pay $500 in monthly child support.
The record reveals that, after leaving military service in June 2003, the former husband took employment with a private security company that sent him to Iraq in July 2004; he did not return to Florida until March 2005. Thereafter, he traveled to Idaho briefly and then returned to Florida until September 2005. At that time, he moved to Pennsylvania to attend school and remained there until June 2007. Subsequently, the former husband remarried and moved to New Jersey, staying there until September 2007, when his employer sent him to Saudi Arabia until February 2008.
In May 2007, the former wife filed an action seeking a judgment declaring that *438 the former husband was in contempt for failing to pay $819 in child support and $2,900 in medical expenses (case no. DR-03-180.01); the former husband was served with the complaint in that action in July 2007. At that time, he was notified that a hearing was set for September 2007, when he was scheduled to be in Saudi Arabia, so he hired an attorney in Bay Minette to represent him and to seek a continuance until his return from overseas. After the September 2007 hearing was continued, the former husband terminated the services of that attorney; however, unknown to the former husband, another hearing had been scheduled for December 13, 2007; nothing in the record indicates that the former husband received formal notification from the trial court of that December hearing date. However, the record does contain a November 2007 e-mail message from the former husband to the former wife in which the former husband acknowledged "knowing" that a December hearing date regarding the unpaid child support and medical bills had been set. The former husband telephoned his current wife in New Jersey and discovered that she had not received any notice of an upcoming hearing, so he "assumed" that there would be no hearing in December 2007. When the former husband returned from Saudi Arabia in February 2008, he received notification of the entry of a default judgment that had been entered against him. That judgment had determined the former husband's child-support arrearage to be $29,000.
The former husband contends that the 2008 judgment is void because he did not have notice that the hearing would review child-support payments back to the date the parties had signed their separation agreement, August 2003, that was subsequently incorporated into a divorce judgment in December 2006. He claims that due process requires that he should have been notified by the trial court that the former wife was not seeking the minimal amount originally alleged in her contempt complaint, i.e., $819 in child support and $2,900 in unpaid medical bills. The record does not indicate that the former wife amended her contempt complaint to reflect any increase in her child-support-arrearage claim; moreover, the record does not reflect that any official notice of the December 2007 hearing was sent to anyone representing the former husband other than the former husband's previous attorney. The record also reflects that the former husband, acting pro se, filed a motion for relief from the default judgment on June 9, 2008.[1] Then, on June 25, 2008, the former husband filed a request seeking a modification of visitation, a modification of child support, and the right to claim the child as a dependent for tax purposes and requests concerning the transportation costs of visitation and potential relocation of the parties; that action was assigned case no. DR-03-180.02. The former wife filed an answer; she also filed a counterclaim seeking an order requiring that the former husband be instructed to obtain professional treatment for certain alleged substance-dependency and mental-health issues before being awarded unsupervised visitation with the child.
*439 The trial court conducted a bifurcated ore tenus proceeding to address all pending motions on April 21 and August 31, 2009. During the trial, the former husband and the former wife testified; additionally, the child's maternal aunt testified in support of the former wife's request that the former husband be supervised by members of the former wife's family during future visitation with the child. At the conclusion of the second day of trial, the trial court, without objection from either party, conducted an in camera interview of the child; that interview was not transcribed or made a part of the record on appeal.
On September 30, 2009, the trial court entered a judgment in case no. DR-03-180.02 (the modification action) that purported to deny the former husband's Rule 60(b) motion to set aside the January 2008 judgment in case no. DR-03-180.01 (the contempt action); that judgment also modified the visitation provisions of the parties' divorce judgment and awarded the former husband supervised visitation with the child during specified school vacations. The judgment specifically denied the former husband's requests for a modification of child support, to claim the child as a dependent for tax purposes, and for current and prospective relief as to transportation costs of visitation. In addition, the former husband was ordered to be evaluated by a qualified mental-health professional and to submit to periodic drug testing every 60 days for a specific period; all results of the court-ordered evaluation and tests were to be filed with the trial court during 2010. The trial court scheduled a hearing to review the former husband's supervised visitation for August 2010.[2]
On October 27, 2009, the former husband filed a postjudgment motion seeking either a new trial or that the trial court alter, amend, or vacate the September 30, 2009, judgment; the trial court denied that motion on December 30, 2009. The former husband filed a timely notice of appeal only in case no. DR-03-180.02 (the modification action) and designated only that action in his notice. The former husband contends that the trial court could not properly deny his Rule 60(b) motion filed in the contempt action. Additionally, the former husband asserts that the trial court, in the modification action, erroneously ordered him to undergo drug testing and a mental-health evaluation in order to obtain supervised visitation with the child. The former husband also contends that the trial court erroneously awarded the former wife an attorney's fee.
As an initial matter, we note that the issues raised by the former husband relating to the denial of his Rule 60(b) motion in case no. DR-03-180.01 (the contempt action) may not be considered because the former husband has not filed a notice of appeal in that action. As noted previously, on September 30, 2009, the trial court, in a judgment entered in case no. DR-03-180.02 (the modification action), purported to deny the former husband's Rule 60(b) motion filed in case no. DR-03-180.01 (the contempt action); however, the former husband filed a notice of appeal only in the modification action. Alabama law is well settled that consolidated actions maintain their separate identities, and separate judgments are to be entered in each action. H.J.T. v. State ex rel. M.S.M., 34 *440 So.3d 1276, 1278 (Ala.Civ.App.2009). Any issues raised by the former husband relating to the purported denial of his Rule 60(b) motion, which was filed in case no. DR-03-180.01 (the contempt action), may not be considered because the former husband has not filed a notice of appeal in that case. Because the former husband, for all that appears in the record, has not filed a notice of appeal in the contempt action, we may not address the correctness of any ruling the trial court may have made regarding the former husband's Rule 60(b) motion in the contempt action.
We now address those issues arising from the former husband's appeal in case no. DR-03-180.02 (the modification action). The former husband asserts that the trial court erred in modifying the parties' divorce judgment to provide that his visitation with the child should occur only when supervised by the former wife or members of her family. Our standard of review is well established:
"The trial court has broad discretion in determining the visitation rights of a noncustodial parent, and its decision in this regard will not be reversed absent an abuse of discretion. Alexander v. Alexander, 625 So.2d 433, 435 (Ala.Civ.App.1993). Every case involving a visitation issue must be decided on its own facts and circumstances, but the primary consideration in establishing the visitation rights accorded a noncustodial parent is always the best interests and welfare of the child."
Carr v. Broyles, 652 So.2d 299, 303 (Ala.Civ.App.1994); see also Pratt v. Pratt, 56 So.3d 638 (Ala.Civ.App.2010). In addition, a trial court establishing visitation privileges for a noncustodial parent must consider the best interests of the child, and, when appropriate, it must set conditions on visitation that protect the child. Ex parte Thompson, 51 So.3d 265, 272 (Ala. 2010).
The former husband contends that the trial court did not have any evidence of his present condition upon which to conclude that the best interests and welfare of the child would require that the former husband's visitation be supervised. The former wife testified that the former husband had suffered from depression and substance-abuse issues during the parties' marriage and at the time the parties had separated in 2003. At trial, she testified, and the former husband admitted, that he had suffered from survivor's guilt and depression following the death of some military colleagues in a terrorist bombing in Iraq in 1996. The former wife testified that, based on that past behavior, she and her family were uncomfortable with the former husband's most recent attempts to visit with the child and had not allowed him unsupervised visitation during the three years immediately preceding the hearing in this case.
All the former wife's testimony regarding the former husband's depression and alcohol-related incidents was limited to occurrences during the marriage and immediately after the parties had separated in 2003; she even admitted during cross-examination that, since the divorce, she had not observed the former husband do anything that could be deemed detrimental to the child. The maternal aunt's testimony related her concerns with two of the former husband's visitations with the child upon his last return from Iraq in 2005. The former wife did not offer any negative testimony regarding the former husband as to the four years immediately preceding trial.
For his part, the former husband denied that he had a substance-abuse problem; he stated that he had been "weaned" from narcotic pain medication and was only taking *441 non-narcotic pain medication as a result of a recent back surgery; he admitted that, several years before the hearing, he had been prescribed narcotic medications to deal with back pain, but he stated that he had not taken those medications for several years. Additionally, the former husband testified that he had remarried and had been a productive citizen since the parties' divorce, as evidenced by his acceptance into a medical school in Pennsylvania and his years of service working for a private security company that required its employees to pass drug tests and other background tests in order to be hired and remain employed.
The former husband also testified that he believed that the former wife and her family had interfered with his relationship with the child, noting that they had discouraged use of a cellular telephone that the former husband had given the child and an Internet camera that he had purchased so the two could see each other for virtual visits. He stated during the August 2009 hearing that the former wife had allowed him to see the child only once during 2009 (immediately following the first day of trial in April).
In his brief to this court, the former husband notes that at trial his attorney objected (on the grounds of remoteness and relevance) to all the former wife's testimony regarding his alleged substance-abuse and mental-health issues. The former wife's attorney stated that he would tie those incidents to recent ones, but he never elicited testimony or adduced documentary evidence directly indicating that the former husband had exhibited those problems since 2005. In addition, the trial court specifically noted on the record that, the remoteness of the incidents referenced by the former wife and the maternal aunt in their testimony would be considered in giving weight to that testimony. Nevertheless, the trial court entered a judgment requiring that the former husband's visitation "shall occur only in Atmore, Alabama under the supervision of the former wife or some person designated by the former wife and at places designated by the former wife."
Previously, this court has affirmed orders of supervised visitation in cases in which there were allegations that the noncustodial parent had abused the child or had suffered from serious psychological problems. See Carr v. Broyles, 652 So.2d at 303; see also I.L. v. L.D.L., 604 So.2d 425, 428 (Ala.Civ.App.1992), and Y.A.M. v. M.R.M., 600 So.2d 1035 (Ala.Civ.App. 1992). More recently, it has been suggested that "[o]nce the trial court has identified a particular danger to the health, safety, or welfare of the child, and the record establishes that some restriction on visitation is necessary to protect the child," the trial court is to tailor a visitation order to target that specific concern. Jackson v. Jackson, 999 So.2d 488, 494 (Ala.Civ.App.2007) (plurality opinion as to that issue); see also P.D. v. S.S., 67 So.3d 128 (Ala.Civ.App.2011), and V.C. v. C.T., 976 So.2d 465 (Ala.Civ.App.2007). However, this court cannot determine from the record presented that the supervised-visitation judgment at issue in this case is not responsive to the circumstances of the former husband and the child because the trial court's in camera interview of the child was not recorded or otherwise made part of the record on appeal. In the absence of a transcript of an in camera interview with a child, a reviewing court must assume that the evidence the trial court received during that interview is sufficient to support that court's judgment. See, e.g., Waddell v. Waddell, 904 So.2d 1275, 1279-80 (Ala.Civ.App.2004); Hughes v. Hughes, 685 So.2d 755, 757 (Ala.Civ.App.1996); and Reuter v. Neese, 586 So.2d 232, 235 (Ala. Civ.App.1991). Accordingly, we cannot *442 say that the former husband has demonstrated that the trial court erred in ordering supervised visitation to occur for a definite period.
Similarly, the former husband asserts that the trial court erred in requiring him to submit to drug screens, drug counseling, and psychiatric counseling. Just as a trial court making initial custody and visitation determinations must consider the best interests of the child, so must the trial court determine the accuracy of alleged substance-abuse and mental-health issues and their impact upon the child. See, e.g., Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), and Kovakas v. Kovakas, 12 So.3d 693, 697-98 (Ala.Civ.App.2008). As noted previously, an award of visitation is within the discretion of the trial court and must be decided based upon the particular facts of each case. See, e.g., Mann v. Mann, 725 So.2d 989, 992 (Ala.Civ.App.1998); see also M.W.W. v. B.W., 900 So.2d 1230, 1232-33 (Ala.Civ.App.2004). The former husband's challenge to the requirement that he submit to drug screens, drug counseling, and psychiatric counseling during the specified period of supervised visitation fails for the same reason that his challenge to supervised visitation fails. Because we must assume that the evidence the trial court received during the in camera interview with the child is sufficient to support that court's judgment, see Waddell, Hughes, and Reuter, supra, we cannot conclude that the trial court erred in ordering the former husband to submit to testing and counseling in this case.
The former husband also contends that awarding the former wife $3,000 in attorney's fees was error. The Alabama "legislature enacted § 30-2-54, Ala.Code 1975, to allow an attorney-fee award to a prevailing party in actions for divorce or to recover unpaid child-support, alimony, or maintenance awards." Pate v. Guy, 934 So.2d 1070, 1072 (Ala.Civ.App.2005) (emphasis added). Although the pertinent "action" in this case primarily concerned child visitation, it also involved the former husband's requests for a modification of child support and to claim the child as a dependent for tax purposes; thus, we conclude that § 30-2-54, Ala.Code 1975, applies in this case. Alabama law is well settled that "attorney fees are ordinarily available in modification proceedings, the award and amount thereof lying within the sound discretion of the trial court." Ebert v. Ebert, 469 So.2d 615, 618 (Ala.Civ.App.1985) (citing Bell v. Bell, 443 So.2d 1258, 1262 (Ala.Civ.App.1983)); see also S.R.E. v. R.E.H., 717 So.2d 385, 388 (Ala.Civ.App.1998). Cf. Pate v. Guy, 934 So.2d at 1072-73 (because pertinent action concerned child visitation, not support, attorney-fee award was not proper).
We affirm the trial court's judgment in the modification action requiring supervised visitation; requiring the former husband to submit to drug screens, drug counseling, and psychiatric counseling; and awarding the former wife attorney fees.
APPLICATION FOR REHEARING GRANTED IN PART AND DENIED IN PART; OPINION OF MARCH 4, 2011 WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
BRYAN and THOMAS, JJ., concur.
MOORE, J., concurs specially, with writing, which THOMPSON, P.J., joins.
MOORE, Judge, concurring specially.
I concur specially. On application for rehearing, the former husband asserts for the first time that the trial court's judgment denying his Rule 60(b), Ala. R. Civ. P., motion to set aside the January 31, 2008, default judgment has not been entered *443 in case no. DR-03-180.01. Although I agree with the conclusion in the main opinion that the former husband failed to file a notice of appeal in case no. DR-03-180.01, I write specially to note that, when a judgment is rendered, but not entered, as the former husband asserts happened in that action, there is no final judgment from which to appeal. See Bolden v. Wise Alloys, LLC, 5 So.3d 1287, 1289 (Ala.Civ.App.2008). As the main opinion states, "[w]hen actions are ordered consolidated, `each action retains its separate identity and thus requires the entry of a separate judgment.'" H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009) (quoting League v. McDonald, 355 So.2d 695, 697 (Ala.1978)); see also R.J.G. v. S.S.W., 42 So.3d 747, 752-53 (Ala.Civ.App.2009). If, as the former husband asserts, the trial court failed to enter its judgment in case no. DR-03-180.01, there is no final judgment in that action from which the former husband could have appealed.
The former husband also requests that this court reconsider its decision with regard to the visitation provisions of the trial court's judgment. I conclude, however, that that issue was correctly and completely addressed in this court's opinion on original submission. I, therefore, concur in the main opinion's denial of the application for rehearing on that issue.
THOMPSON, P.J., concurs.
NOTES
[1] Although the former wife contends that that motion was an untimely Rule 59, Ala. R. Civ. P., postjudgment motion because (1) the motion was filed more than 30 days after the entry of the judgment and (2) the former husband, albeit inartfully, pleaded that the judgment was void on due-process grounds, we conclude that the former husband's postjudgment motion was a Rule 60(b) motion, and we treat it as such in this opinion. See, e.g., Ex parte Lang, 500 So.2d 3 (Ala. 1986), and Curry v. Curry, 962 So.2d 261 (Ala.Civ.App.2007).
[2] We conclude that, although the trial court scheduled a hearing to review the former husband's supervised visitation, the judgment was final. See K.L.U. v. M.C., 809 So.2d 837, 840 (Ala.Civ.App.2001) (concluding that judgment containing supervised-visitation award to father was final and would support an appeal, although trial court had already set a hearing to review the father's supervised visitation).
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187 Conn. 144 (1982)
PEGGY O. LANE
v.
CHRISTOPHER T. LANE
Supreme Court of Connecticut.
Argued March 4, 1982.
Decision released May 11, 1982.
SPEZIALE, C. J., PETERS, HEALEY, PARSKEY and SHEA, JS.
Robert M. Wechsler, with whom, on the brief, was Rhonna W. Rogol, for the appellant (defendant).
Samuel V. Schoonmaker III, with whom, on the brief, were Sara M. Carter and Robert M. Haas, Jr., for the appellee (plaintiff).
*145 PER CURIAM.
The defendant appeals from orders of the trial court assigning to the plaintiff certain property upon dissolution of the parties' thirteen year marriage. Specifically the defendant claims that assignment to the plaintiff of his interest in the family home, of the items of personal property listed on his affidavit, and of the membership in the Round Hill Club amounts to an abuse of discretion. He argues that, in making the award, the trial court failed to consider the factors enumerated in General Statutes § 46b-81 (c)[1] and raises certain constitutional claims. The defendant also claims that the trial court erred by taking into account two nonstatutory factors, namely, the purpose behind the plaintiff's transfer to the defendant during the marriage of a one-half interest in the home and the plaintiff's contributions to family support.
The defendant's position is that the trial court's award was disproportionate and therefore arbitrary in view of the parties' approximately equal financial contributions toward purchasing the family home. He also views the entire award to the plaintiff as unfair and an abuse of discretion because the plaintiff has substantial assets of her own. The defendant argues that a full and proper *146 consideration of the factors enumerated in § 46b-81 (c) can lead only to the conclusion that the trial court abused its discretion by assigning the property to the plaintiff. We disagree. The record reveals that the trial court in fact considered the criteria of § 46b-81 (c) and that the court could reasonably have reached the result it did. Martin v. Martin, 187 Conn. 142, 444 A.2d 1376 (1982); Beede v. Beede, 186 Conn. 191, 194, 440 A.2d 283 (1982). Consideration of the plaintiff's contributions to family support and of the reason behind the defendant's acquisition of a one-half interest in the home was within the equitable powers of the trial court. Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982).
The defendant further argues (1) that the financially disproportionate award violates due process because it is not supported by the evidence, and (2) that mention made of the plaintiff's contributions of past family support, and not of his contributions, amounts to gender-based discrimination in violation of equal protection. Finding as we do that the record supports the trial court's judgment, we do not reach the defendant's due process claim. As to the defendant's equal protection claim, the record shows that the trial court considered all relevant factors. The court was not required to recite all of them; Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981); or make specific findings concerning each. Posada v. Posada, 179 Conn. 568, 573, 427 A.2d 406 (1980).
Finally the defendant argues that § 46b-81 (c) is, as applied to him, void for indefiniteness and an invalid delegation of legislative power to the courts because of the broad discretion conferred upon the *147 trial court. We disagree. Differences inherent in particular family situations require that the court's discretion be broad enough to make suitable orders upon dissolution of marriage to fit the circumstances. See Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980); Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895 (1979).
There is no error.
NOTES
[1] "[General Statutes] Sec. 46b-81. (Formerly Sec. 46-51). ASSIGNMENT OF PROPERTY AND TRANSFER OF TITLE.... (C) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates."
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
245
KA 14-01059
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
WAYNE A. PRYCE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, ESQS.,
SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (CHRIS EAGGLESTON
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered October 2, 2013. The judgment convicted
defendant, upon his plea of guilty, of bail jumping in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of bail jumping in the second degree (Penal
Law § 215.56). Defendant’s contention that his plea was not
knowingly, voluntarily, or intelligently entered because he did not
personally recite the elements of the crime to which he pleaded guilty
is actually a challenge to the factual sufficiency of the plea
allocution, and that contention is not preserved for our review
inasmuch as defendant did not move to withdraw his plea or to vacate
the judgment of conviction (see People v Loper, 118 AD3d 1394, 1394-
1395, lv denied 25 NY3d 1204; see also People v Rinker, 141 AD3d 1177,
1177, lv denied 28 NY3d 1030). This case does not fall within the
narrow exception to the preservation requirement because nothing in
the plea colloquy negates an essential element of bail jumping in the
second degree, raises a potential defense to that charge, or otherwise
casts doubt on defendant’s guilt (see People v Lopez, 71 NY2d 662,
666-667; People v Brinson, 130 AD3d 1493, 1493, lv denied 26 NY3d
965). In any event, defendant’s contention is without merit.
Defendant’s “monosyllabic responses to [County Court’s] questions did
not render the plea invalid” (People v Gordon, 98 AD3d 1230, 1230, lv
denied 20 NY3d 932 [internal quotation marks omitted]; see Lopez, 118
AD3d at 1395). Further, “ ‘there is no requirement that a defendant
personally recite the facts underlying his or her crime[] during the
plea colloquy, and, here, [t]he record establishes that defendant
-2- 245
KA 14-01059
confirmed the accuracy of [the court’s] recitation of the facts
underlying the crime’ ” (Gordon, 98 AD3d at 1230).
We have considered defendant’s challenge to the severity of the
agreed-upon sentence and conclude that it is without merit.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court
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71 F.Supp.2d 755 (1999)
The ROCK & ROLL HALL OF FAME AND MUSEUM, INC., et al., Plaintiffs,
v.
GENTILE PRODUCTIONS, et al., Defendants.
No. 1:96 CV 899.
United States District Court, N.D. Ohio, Eastern Division.
September 2, 1999.
*756 Memorandum of Opinion and Order
GAUGHAN, District Judge.
Introduction
This matter is before the Court upon defendants' Motion for Summary Judgment (Doc. 70). This is a trademark and unfair competition case arising out of a poster created by defendants from a photograph taken of a building designed by plaintiffs. For the following reasons, the Motion is GRANTED.
Facts
Plaintiffs, The Rock and Roll Hall of Fame and Museum (hereafter, sometimes referred to individually as the Museum) and The Rock and Roll Hall of Fame Foundation (referred to collectively hereafter as plaintiffs), brought this action against defendants, Gentile Productions and Charles M. Gentile (hereafter, sometimes referred to individually as Gentile) (referred to collectively as defendants). In its Opinion vacating United States District Judge George W. White's granting of a motion for preliminary injunction in this matter, the Sixth Circuit set forth the following facts:
In 1988, The Rock and Roll Hall of Fame Foundation registered the words, `THE ROCK AND ROLL HALL OF FAME,' as its service mark, on the principal register at the United States Patent and Trademark Office. In 1991, the Foundation commissioned I.M. Pei, a world famous architect, to design a facility for The Rock and Roll Hall of Fame and Museum in Cleveland, Ohio. Pei's design was brought to life on the edge of Lake Erie, in the form of The Rock and Roll Hall of Fame and Museum which opened in September 1995.
...
The Museum states that its building design is `a unique and inherently distinctive symbol of the freedom, youthful energy, rebellion and movement of rock and roll music.' Whatever its symbolism, there can be no doubt that the Museum's design is unique and distinctive. The front of the Museum is dominated by a large, reclining, triangular facade of steel and glass, while the rear of the building, which extends out over Lake Erie, is a striking combination of interconnected and unusually shaped, white buildings. On May 3, 1996, the State of Ohio approved the registration of the Museum's building design for trademark and service-mark purposes. The Museum has similar applications pending with the United States Patent and Trademark Office.[1]
Charles Gentile is a professional photographer whose work is marketed and distributed through Gentile Productions. In the spring of 1996, Gentile began to sell, for $40 to $50, a poster featuring a photograph of the Museum against a colorful sunset. The photograph is framed by a black border. In gold lettering in the border underneath the photograph, the words, `ROCK N' ROLL HALL OF FAME,' appear above the smaller, but elongated word, `CLEVELAND.' Gentile's signature appears in small blue print beneath the picture of the building. Along the right-hand side of the photograph, in very fine print, is the following explanation: `Copr.1996 Gentile Productions ... Photographed by: Charles M. Gentile[;] Design: Division Street Design [;] Paper: Mead Signature Gloss Cover 80# [;] Printing: Custom Graphics Inc. [;] Finishing: Northern Ohio Finishing, Inc.'
In reaction to Gentile's poster, [plaintiffs] filed a five-count complaint against Gentile in the district court. [Plaintiffs'] complaint contends that the Museum has used both its registered service mark, "THE ROCK AND ROLL HALL OF FAME," and its building design as trademarks, and that Gentile's poster *757 infringes upon, dilutes, and unfairly competes with these marks. [Plaintiffs'] somewhat unusual claims regarding its building design, then, are quite unlike a claim to a service-mark right in a building design that might be asserted to prevent the construction of a confusingly similar building.
The Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134 F.3d 749 (6th Cir.1998).
The Second Amended Complaint[2] sets forth five claims. Count One alleges federal trademark infringement, in violation of 15 U.S.C. § 1114(1). Count Two alleges unfair competition, false or misleading representations, and false designation of origin, in violation of 15 U.S.C. § 1125(a). Count Three alleges dilution of trademarks, in violation of 15 U.S.C. § 1125(c) and Ohio common law. Counts Four and Five allege unfair competition and trademark infringement under Ohio law.
Plaintiffs previously sought a preliminary injunction in this matter. Judge White granted the motion after hearing. The Sixth Circuit vacated that decision and remanded for further consideration. The case was thereafter reassigned to this Court.
This matter is now before the Court upon defendants' Motion for Summary Judgment.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir.1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits," if any, which it believes demonstrates the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (citing Fed.R.Civ.P. 56(c)). A fact is "material only if its resolution will affect the outcome of the lawsuit." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party. Federal Rule of Civil Procedure 56(e) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is genuine issue for trial. If he does not respond, summary judgment, if appropriate, shall be entered against him.
The court must afford all reasonable inferences and construe the evidence in the light most favorable to the nonmoving party. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir.1995) (citation omitted); see also United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985). However, the nonmoving party may not simply rely on its pleading, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox, 53 F.3d at 150.
Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case. Tolton v. American *758 Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548). Accordingly, "the mere existence of a scintilla of evidence in support of plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (1986)). Moreover, if the evidence is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citation omitted).
Discussion
The reasoning and conclusions of the Sixth Circuit will be addressed initially.
Generally, the Sixth Circuit determined that the record before it did not establish a strong likelihood of success on the merits and, therefore, vacated the preliminary injunction. The Sixth Circuit reached this conclusion because it determined that on the record before them, plaintiffs had not used their building design as a trademark.
The Sixth Circuit set forth the law relative to trademarks:
A trademark is a designation, `any word, name, symbol, or device, or any combination thereof,' which serves `to identify and distinguish [the] goods [of the mark's owner] ... from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.' § 15 U.S.C. 1127. Although some marks are classified as inherently distinctive and therefore capable of protection, see generally Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768-69, 112 S.Ct. 2753, 2757-58, 120 L.Ed.2d 615 (1992), it is not the case that all inherently distinctive symbols or words on a product function as trademarks. See, e.g., Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 906-07 (9th Cir.1995); Clairol Inc. v. Gillette Co., 389 F.2d 264, 269-71 & n. 16 (2d Cir.1968); see generally IJ. McCarthy, McCarthy on Trademarks and Unfair Competition § 3:3 (4th ed.1997). Rather, in order to be protected as a valid trademark, a designation must create `a separate and distinct commercial impression, which ... performs the trademark function of identifying the source of the merchandise to the customers.' In re Chemical Dynamics, Inc., 839 F.2d 1569, 1571 (Fed.Cir.1988); see also IJ. McCarthy § 3:3.
It is well established that `[t]here is no such thing as property in a trademark except as a right appurtenant to an established business or trade in connection with which the mark is employed.' United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50-51, 63 L.Ed. 141 (1918). Thus, whether alleging infringement of a registered trademark, pursuant to § 15 U.S.C. 1114(1), or infringement of an unregistered trademark, pursuant to § 15 U.S.C. 1125(a)(1), it is clear that a plaintiff must show that it has actually used the designation at issue as a trademark, and that the defendant has also used the same or a similar designation as a trademark. See, e.g., Holiday Inns, Inc. v. 800 Reservation, Inc., 86 F.3d 619, 622-23 (6th Cir.1996), cert. denied, 519 U.S. 1093, 117 S.Ct. 770, 136 L.Ed.2d 715 (1997); Homeowners Group, Inc. v. Home Marketing Specialists, Inc., 931 F.2d 1100, 1105 (6th Cir.1991). In other words, the plaintiff must establish a likelihood that the defendant's designation will be confused with the plaintiff's trademark, such that consumers are mistakenly led to believe that the defendant's goods are produced or sponsored by the plaintiff. See, e.g., Holiday Inns, 86 F.3d at 623.... [T]rademark claims under Ohio law follow the same analysis. See Daddy's Junky Music Stores, Inc. v. Big Daddy's Family Music Ctr., 109 F.3d 275, 288 (6th Cir.1997).
Rock and Roll, 134 F.3d at 753-754.
The Sixth Circuit concluded that on the record before it, plaintiffs did not establish *759 a strong likelihood that defendants had made an infringing trademark use of plaintiffs' name or building design. The court stated that it was not persuaded that plaintiffs use their building as a trademark nor that the photograph in defendants' poster functions as a trademark. The court determined that when it views the photograph in defendants' poster it does not readily recognize the design of the plaintiffs' building as an indicator of source or sponsorship. Rather, the court stated that it sees a photograph of a well-known public landmark. In other words, the court saw the building not as a mark but as the good itself.
In granting the preliminary injunction, the district court had found that the plaintiffs' building design is fanciful, the plaintiffs have used their building design as a trademark and the public recognizes the plaintiffs' building design as a trademark. The Sixth Circuit disagreed finding no evidence in support.
First, the court stated, "Although the plaintiffs `invented' the Museum, the Museum's existence as a landmark in downtown Cleveland undermines its `fancifulness' as a trademark" and "a picture of the Museum on a product might be more readily perceived as ornamentation than as an identifier of source." Rock and Roll, 134 F.3d at 754.
Second, the court stated that it could not conclude on the record that plaintiffs have used their building design as a trademark because it found that plaintiffs have used it in an inconsistent manner as evidenced by the various depictions of the building design on T-shirts, posters and postcards. On some products the building is shown from the rear, on some from the front and others show a close-up view. The court concluded that plaintiffs have not "create[d] a consistent and distinct commercial impression as an indicator of a single source of origin or sponsorship." Therefore, it was not "likely that the Museum has established a valid trademark in every photograph which, like Gentile's, prominently displays the front of the Museum's building, `no matter how dissimilar'" because "[c]onsistent and repetitive use of a designation as an indicator of source is the hallmark of a trademark." Id. at 755.
Third, the court found "no support for the [district court's] factual finding that the public recognizes the [plaintiffs'] building design, in any form, let alone in all forms, as a trademark" Id. The court stated that evidence documenting or demonstrating such public recognition "might be pivotal" but is lacking. Id. at 754.
Aside from its conclusions regarding the use of the building design, the Sixth Circuit found that the district court failed to separately address defendants' use of the words, "Rock N' Roll Hall of Fame Cleveland." Nevertheless, the Sixth Circuit noted that defendants' use of these words "may very well constitute a fair use of the [plaintiffs'] registered service mark" under the federal trademark statute as the words would merely be a description of defendants' own good if the plaintiffs failed to prove that defendants' photograph was an infringing use of the plaintiffs' building design.. Id. at 756.
The court concluded, "on the record before us, we are left with grave doubts as to the likelihood of the Museum's success on these claims." Id. at 756. A dissent was filed in the case wherein that judge found that the plaintiffs do have a valid trademark in the building.
In the Motion for Summary Judgment, defendants make three arguments: the plaintiffs have not used the photographic image of their building as a trademark, identifying source or sponsorship; defendants have not used their photograph of the building or the words "Rock and Roll Hall of Fame"[3] as a trademark; and defendants' *760 work is artistic expression protected by the First Amendment.
(1) whether plaintiffs have used the photographic image as a trademark.
Defendants first argue that the plaintiffs have not used the photographic image of their building as a trademark, identifying source or sponsorship. Rather, defendants assert that the building is the "good itself," not a symbol for plaintiffs' product and, therefore, the photographic image of the building is the good and not the identifier of the producer of the product. While defendants agree that a building design can be trademarked, they maintain that the protection sought is actually the prevention of another constructing a similar building, such as a Fotomat or White Castle building, wherein the owner has used the building as a symbol for its product and the building itself is not the product.
Plaintiffs make several arguments in support of their allegation that they have used the building design as a trademark. However, these arguments were presented to the Sixth Circuit in plaintiffs' appeal brief and/or in their Petition seeking rehearing and were rejected inasmuch as that court did not find that the plaintiffs used their building design as a trademark.
Plaintiffs first assert that, as a matter of law, the Museum has "used" the building as a trademark. Plaintiffs argue that registration is prima facie evidence of use which defendants must rebut. Plaintiffs point to their trademark and service mark applications filed with the United States Patent and Trademark Office and the approved Statements of Use as clear evidence that they have used the building design as a trademark and service mark. (pltfs. Exs. C and I) Plaintiffs also point out that under the Lanham Act[4], a mark is deemed "in use" when "it is placed in any manner on the goods ... or on tags or labels ... and the goods are sold or transported in commerce" and a service mark is deemed "in use" when "it is used or displayed in the sale or advertising of services ... rendered in commerce." 15 U.S.C. § 1127. Plaintiffs submit the affidavit of Catherine Surratt, who avers that plaintiffs have used the building design on posters, postcards, snowdomes, magnets, coffee mugs and clothing among other goods and their Statement of Use showing that the building design has been used on brochures, advertisements and promotional materials. (pltfs. Exs. B and I).
These assertions have been rejected by the Sixth Circuit. In their brief on appeal, plaintiffs argued that registration of the mark is prima facie evidence of the validity, ownership and exclusive right to use the mark which defendants must rebut. (brief at 12). Plaintiffs also argued in their Petition for rehearing, as they argue here, that they have met the statutory use requirements of the federal trademark statute, the Lanham Act. (Petition at 8). While plaintiffs now submit the affidavit of Catherine Surrat averring to the use of the building design on various goods sold by plaintiffs, plaintiffs had pointed out in the Petition for rehearing that the Secretary of State "had the opportunity to view how the Museum building design was used on postcards, t-shirts, snow domes and posters before granting the certificate of registration." (Petition at 9). Therefore, the court had these arguments supporting "use" before it and apparently did not think them sufficient.
Second, plaintiffs argue that trademark law does not distinguish between shape and word marks. Plaintiffs argue that building designs are protectable trademarks, not exempted by the Lanham Act and that they can function as both trademarks and service marks. Plaintiffs assert they use the building design as trademark to distinguish their official goods from those sold by others and as a service mark on brochures and advertising to attract customers to purchase the "services" *761 of the Museum. Additionally, plaintiffs assert, case law reveals the shapes, sounds, scents and colors can be trademarks. As such, the good is not the building itself but is a source identifier in that consumers purchasing defendants' poster wish to purchase a representation of the Museum's trademark, a uniquely-designed building shape.
Plaintiffs argued in their appellate brief that building designs are protectable trademarks. (brief at 13). In their Petition for rehearing, plaintiffs argued that a building design can serve as a trademark and service mark in addition to arguing that shapes, sounds, scents and colors can be trademarks. (Petition at 11-12). Further, in their Petition, plaintiffs vigorously disputed the majority's finding that the building shape in the defendants' poster was the good itself. (Petition at 12-13). Again, these arguments were rejected by the Sixth Circuit.
Next, plaintiffs argue, relying on Coca-Cola Co. v. Gemini Rising, Inc. 346 F.Supp. 1183 (E.D.N.Y.1972), that there can be trademark infringement with a photograph depicting another's trademark and that the two-dimensional nature of the photograph of the building design is irrelevant. Plaintiffs assert that they attach a hangtag to most of their merchandise featuring a photograph of the building to denote that the goods are officially sponsored or licensed Museum merchandise. (Ex. 2 to Surratt aff.).
Plaintiffs argued in their appellate brief, relying on Coca-Cola, that there can be trademark infringement with a photograph depicting another's trademark. (brief at 17). Plaintiffs also argued therein that the two-dimensional nature of the photograph of the building design is irrelevant. (Id. at 17-18). These arguments were not accepted by the Sixth Circuit.
Finally, plaintiffs argue that the fact the building is capable of being viewed from more than one perspective is irrelevant to whether it can function as a source identifier and that a unique building shape can have multiple depictions and, therefore, multiple perspectives of the same trademark. Plaintiffs argue that the building design is unique and distinctive and so secondary meaning[5] is not required and aesthetic functionality is irrelevant.
Plaintiffs argued in their Petition that the alleged inconsistency of building views is irrelevant. (Petition at 10-11). They also argued in their appellate brief that their marks are unique and distinctive and so automatically protected without proof of secondary meaning. (brief at 11-12). In their Petition, plaintiffs attacked the majority's findings in this regard. (Petition at 4-5). Again, the Sixth Circuit did not accept these arguments.
The only arguments which were not before the Sixth Circuit are those related to a survey now submitted by plaintiffs. Plaintiffs assert that the survey shows that the public recognizes the building design as being an identifier of the plaintiffs' goods and services. However, for the following reasons, the Court does not find that plaintiffs' survey shows public recognition of the plaintiffs' building design as a trademark, as opposed to recognition of the building as the Rock and Roll Hall of Fame.
Carl Block, president and CEO of the marketing research firm which conducted plaintiffs' survey, avers that the research was made up of two surveys, the Poster Identification Survey and the Poster Recognition Survey, the latter being a control measure. (aff. Carl Block; pltfs. Ex. A). The surveys were conducted in Cleveland during two months in 1998 at Tower City in downtown Cleveland and The Great Lakes Mall in suburban Cleveland. Interviews *762 of 405 people were completed with the respondents being at least 15 years of age and either having purchased within the last 12 months, or expecting to purchase within the next 12 months, a commemorative item from an attraction visited or paper poster or print of some kind. (Block aff.).
The Poster Identification Survey posed the following questions: (1) Who do you think put out [defendants'] poster? 46% said the Rock and Roll Hall of Fame. (2) Do you think that the company or person that put out [defendants'] poster needed permission or authorization from anyone? 72% said yes. (3) From whom do you believe that they would need permission or authorization? 78% said the Rock and Roll Hall of Fame. (4) Do you believe that these two posters [plaintiffs' and defendants'] were put out by the same party, two different but related parties, or two independent parties? 37% said the same party, 23% said different but related parties and 37% said two independent parties. (5) Why do you say that? (pltfs.Ex. A)
The control, or Poster Recognition Survey, posed the following questions: (1) Do you recognize the subject of this poster [defendants' poster with the name covered]? 95% answered yes. (2) What is the subject of this poster [defendants' poster with the name covered]? 99% answered the Rock and Roll Hall of Fame. (3) If you were to buy this poster [defendants' poster with the name covered] what would be your reason? (4) Do you think that the company or person that put out this poster [defendants' poster with the name covered] needed permission or authorization from anyone? 74% answered yes. (5) From whom do you believe that they would need permission or authorization? 87% answered the Rock and Roll Hall of Fame. (Id.).
Respondents were also shown a poster of the Cleveland skyline and asked the same five control questions. (Id.).
Plaintiffs point to several cases in support of their survey in which they assert that courts relied on surveys in deciding issues such as source and sponsorship and likelihood of confusion. However, in these cases the marks at issue were first found to be entitled to protection and so the courts used the survey evidence to determine whether there was a likelihood of confusion. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526 (5th Cir.1998) (court found certain of the plaintiffs' golf holes to be entitled to protection and so proceeded to whether there was a likelihood of confusion), Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club, 34 F.3d 410 (7th Cir.1994) (the validity of "Indianapolis Colts" as a trademark was not in question and, therefore, whether defendant infringed depended on whether defendant's mark was confusingly similar), Ferrari S.P.A. Esercizio v. Roberts, 944 F.2d 1235 (6th Cir.1991) (while survey was used to show secondary meaning as well as likelihood of confusion, plaintiffs automobile designs were found to have acquired secondary meaning and thus entitled to protection due also to separate testimony as well as defendant's intentional copying and the widespread publicity surrounding plaintiffs design) and Express, Inc. v. Sears, Roebuck, 840 F.Supp. 502 (S.D.Ohio 1993) (it was not disputed that plaintiffs had a mark in the term "EXPRESS" although it was argued that plaintiff had abandoned the mark).
Here, plaintiffs have not shown that their building design is protectable as a trademark. To prove trademark infringement, a plaintiff must show both that it has a valid, protectable trademark and that defendant's use of the mark creates a likelihood of confusion concerning the origins of the goods. Express Services, Inc. v. Careers Express Staffing, 176 F.3d 183, 185 (3d Cir.1999), Petro Stopping Centers v. James River Petroleum, 130 F.3d 88, 91 (4th Cir.1997) and Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111 (7th Cir.1997). Therefore, a court does not reach the issue of confusion until it finds a valid protectable mark. The survey *763 evidence in the cases relied upon by plaintiffs goes largely to whether there was confusion.
Assuming the survey is offered to establish that plaintiffs have a protectable trademark, it only shows that, overwhelmingly, respondents recognized the building as a landmark and not as a protected trademark or as source-distinguishing. The Sixth Circuit anticipated this conundrum:
Even if we accept that consumers recognize the various drawings and pictures of the Museum's building design as being drawings and pictures of the Museum, the Museum's argument would still fall short. Such recognition is not the equivalent of the recognition that these various drawings or photographs indicate a single source of the goods on which they appear.
Rock and Roll, 134 F.3d at 755.
Therefore, the Court finds that plaintiffs have not used the building design as a trademark. First, this Court will not circumvent the finding of the Sixth Circuit which concluded twice that the legal arguments made here are insufficient to show that plaintiffs used the building design as a trademark. In their Petition to the Sixth Circuit for a rehearing, plaintiffs vigorously contested that court's finding that plaintiffs did not use the building design as a trademark or service mark. (Petition at 7-11 attached to defts. reply). The Petition for rehearing was denied as "the issues raised in the petition were fully considered upon the original submission and decision of the case." (Id.). Even without this precedent, this Court would agree with the majority opinion. Second, the Court does not find that the survey shows a protectable trademark.
For the foregoing reasons, plaintiffs have not shown that they have used the photographic image as a trademark.
(2) whether defendants have used plaintiffs' building design or words as a trademark.
Defendants assert that they have not used the building design as a trademark and their photograph of the Museum contains its own source of origin, i.e., Gentile's signature. Plaintiffs assert that defendants' use of the building design amounts to infringement.
The Sixth Circuit did not analyze whether defendants used the building design as a trademark. Rock and Roll, 134 F.3d at 755. Having found that the plaintiffs do not have a protectable trademark in the building design, this Court need not reach this issue.
Even assuming there is a protectable trademark, plaintiffs arguments that defendants used the building design with an intent to deceive the public are not persuasive.
Plaintiffs assert that Gentile took his photograph in August or September 1995, but did not begin selling the poster until March 1997, after the Museum had received widespread publicity and extensive promotion (pltfs. Ex. M at 18; Rachel Schmelzer aff., pltfs. Ex. H). However, the evidence shows that Gentile began selling his poster in March 1996. (Schmelzer aff.) Therefore a photograph taken in the fall of the previous year and sold in the spring is not so unusual as to raise conjecture that defendants waited for the Museum to be publicized.
Plaintiffs assert that Gentile was informed that he would need a license from plaintiffs because they own a trademark in the building shape but he sold his posters regardless (Rachel Schmelzer aff). However, this could just as easily show that Gentile did not think his poster featuring the photograph infringed on plaintiffs' rights.
Plaintiffs assert that Gentile's other posters are merely labeled, "Cleveland," and yet, on the allegedly infringing poster, defendants use plaintiffs' words (pltfs.Ex. N). This argument is not persuasive. One poster shows a lighted bridge across *764 the river with boats in the foreground and other structures in the background and is labeled, "ClevelandParade of Lights." Another poster shows a darkened city with buildings lit up and is labeled, "Cleveland City of Lights." A third poster shows a daytime photograph of the Cleveland skyline consisting of the British Petroleum Building, the Terminal Tower and the Key Tower with other various smaller buildings and is labeled, appropriately, "Cleveland." (pltfs.Ex. N). By contrast, the poster at issue here features one building and there is nothing inconsistent with Gentile labeling the Museum for what it is and telling the geographic location, as in the other posters, Cleveland.
Finally, plaintiffs assert that Gentile's signature appears on the poster in dark blue so as not to "stand out" (James O'Connor depo. at 17-18, pltfs. Ex.) and that the other credits on the poster are in small print likely to be covered by a frame. However, all of Gentile's posters contain his signature and the one on the poster at issue is no less conspicuous than the others. (pltfs. Ex. F and N.) Further, the deposition testimony of James O'Connor, presumably Gentile's layout designer, shows that while Gentile wanted his signature in white, O'Connor suggested it be in blue so as not to stand out or be distracting. (depo. at 17-18). This does not show any bad intent on Gentile's part. Plaintiffs assertion that the other credits are in small print and likely to be covered by a frame is not enough to show intent to confuse the public.
Additionally, plaintiffs argue that notwithstanding that the plaintiffs' logo does not appear on the poster, the survey shows that the majority of respondents still believed that the two posters were put out by the same or related parties and, therefore, there is a likelihood of confusion. Plaintiffs also assert there is actual confusion and point to the deposition testimony of Joan Stanley, plaintiffs' licensing agent, who testifies that she had received "one or two calls" asking for Gentile's poster, thinking it was put out by plaintiffs. (pltfs. Ex. L at 204, 207-208).
Nevertheless, as discussed above, the Court does not find that the survey shows that consumers believed the building is a trademark used by defendants. Further, the Court does not find Stanley's deposition showing that two people called looking for Gentile's poster to be sufficient to show actual confusion.
For these reasons, there is no evidence that defendants' used plaintiffs' building design as a trademark.
Defendants also contend that their use of the words "Rock N' Roll Hall of Fame Cleveland" does not constitute a trademark infringement on plaintiffs' mark and is a "fair use" under the Lanham Act. Plaintiffs argue that defendants' use of the word mark is not "fair use" because the infringer has caused a likelihood of confusion and has not used plaintiffs' mark truthfully to describe or compare their product to the plaintiffs' product.
Having found that defendants' use of the building design was noninfringing, this Court finds that defendants' use of the words was a "fair use" of the service mark. The federal trademark statute provides a defense to an infringement charge by reason:
That the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark ... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party ...
15 U.S.C. § 1115(b)(4). Thus, use of the mark is allowed where it describes the goods. This is all Gentile does when he labels his poster, "Rock N' Roll Hall of Fame Cleveland."
For there reasons, the Court does not find defendants' use of the words "Rock N' Roll Hall of Fame Cleveland" to infringe plaintiffs' mark.
*765 (3) whether defendants' work is ultimately protected by the First Amendment
Defendants assert that their photograph "is fully protected by the First Amendment and may not be the basis for a claim under the Lanham Act, or any of the other causes of action." (Motion at 21).
The Court will not reach this issue having found that defendants prevail on the infringement issue. Moreover, while defendants argued at length on appeal that the district court's decision violated plaintiffs' First Amendment rights, the Sixth Circuit did not address these arguments. Rather, the court analyzed the claim purely under federal trademark law. This Court has done likewise.
Conclusion
For the foregoing reasons, defendants' Motion for Summary Judgment is granted.
IT IS SO ORDERED.
NOTES
[1] It appears that the United States Patent and Trademark Office approved registration of the marks in November 1997. (pltfs.Ex. D).
[2] Plaintiffs were granted leave to file a Second Amended Complaint on November 24, 1998. However, the docket does not reflect that plaintiffs ever actually filed the Second Amended Complaint. However, because defendants filed an Answer to this pleading, the Court has considered it.
[3] The actual words used on defendants' poster are, "Rock N' Roll Hall of Fame-Cleveland."
[4] The federal trademark law, 15 U.S.C. §§ 1051, et seq.
[5] To establish secondary meaning, a plaintiff must show that, "in the minds of the public, the primary significance of a product feature ... is to identify the source of the product rather than the product itself." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 2756, 120 L.Ed.2d 615 (1992).
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NUMBER 13-05-244-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GARLAND JEROME VENNUS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 182nd District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Yañez
Appellant, Garland Jerome Vennus, entered a plea of guilty without an agreed
recommendation for punishment and was convicted for the offense of possession with
intent to deliver a controlled substance, weighing more than four grams and less than 200
grams by aggregate weight. (1) Two prior felony controlled substance convictions were
alleged to enhance punishment. The trial court found both enhancement paragraphs true
and sentenced appellant to serve 25 years' imprisonment. The trial court certified the right
to appeal. In three issues, appellant complains that his motion to suppress was
erroneously denied because the State failed to demonstrate the officer had reasonable
suspicion for the prolonged detention necessitated by the wait for the arrival of the
narcotics canine unit after the traffic stop. (2) We reverse and remand.
I. Factual and Procedural Background
Three pre-trial motions to suppress were filed by or on behalf of appellant. On
March 16, 2005, the trial court held a pre-trial suppression hearing. At the hearing, the
State presented two witnesses, Houston police officers Benjamin K. Gill, a member of the
Narcotics Division, and Domingo Guerrero, a narcotics canine handler.
Gill testified to the events of May 6, 2004 that led to appellant's arrest. After
receiving information from a confidential source, Gill stated that he came into contact with
appellant while working undercover conducting surveillance in the area surrounding the
4300 block of Hardy Street in Harris County, Texas. He testified that he believed appellant
was engaging in narcotics transactions. The officer observed appellant pulling away from
the location where he was parked; the officer then followed him. Gill further testified that
appellant made an illegal left turn and failed to signal as he pulled into a filling station.
Upon leaving the filling station, appellant was stopped by uniformed officers that Gill
had directed to make the traffic stop. The officers had also been directed to place
appellant in the back of the patrol car for safety reasons and to prevent tampering with any
evidence. The officers then requested appellant's consent to search his vehicle, which he
refused.
Officer Gill arrived at the scene and called for a narcotics dog to check the car for
the odor of drugs. There is conflicting evidence regarding how long it took for the narcotics
canine unit to arrive. Gill testified that it took 15 minutes for the canine unit to arrive from
the time it was called, and that a total of 25 minutes passed from the time appellant was
stopped to the time the unit arrived. Officer Guerrero, on the other hand, testified that it
took him about 30 minutes to arrive at the scene after he was called. Therefore, in giving
weight to the testimony of both officers, a finder of fact may deduce that appellant was
detained for 25 to 40 minutes before the canine unit arrived.
When Officer Guerrero arrived with the dog, he proceeded to permit the dog to
search the outside of the vehicle. The dog alerted officers to the driver's side of the vehicle
near the door. After Guerrero advised Gill of the alert, Gill searched the inside of the
vehicle and recovered 106 grams of marihuana, 12.47 grams of crack cocaine from the
console, and 2.35 grams of crack cocaine from the area above the visor.
The trial court denied appellant's motion to suppress, finding that the stop was lawful
and the time of the detention awaiting the arrival of the dog was not excessive or
unreasonable.
II. Discussion
A. Standard of Review
A trial court's denial on a motion to suppress is reviewed for abuse of discretion. (3)
At a suppression hearing, the trial court is the sole finder of fact. (4) We give almost total
deference to a trial court's determination of historical facts and application-of-law-to-fact
questions that turn on credibility and demeanor. (5) Application-of-law-to-fact questions that
do not turn on credibility and demeanor are reviewed de novo. (6) Where the trial court does
not make explicit findings of actual facts, we review the evidence in the light most favorable
to the trial court's ruling. (7) We will uphold a trial court's ruling admitting the evidence if it is
reasonably supported by the record and is correct on any theory of law applicable to the
case. (8) This is true even if the decision is correct for reasons different from those given by
the trial judge. (9)
B. Burden of Proof
To suppress evidence on the basis of illegal police conduct, the defendant bears the
initial burden of proof to rebut a presumption of proper police conduct. (10) A defendant
satisfies this burden by establishing that (1) a search or seizure occurred and (2) that no
warrant had been obtained. (11) The burden then shifts to the State where it is required to
either produce a warrant or prove the reasonableness of the search or seizure. (12) The State
may demonstrate reasonableness by proving probable cause. (13)
In the instant case, the State contends that appellant never met his initial burden;
therefore, the burden to demonstrate the detention's legality never shifted to the State and
any detention, search, or seizure was presumptively reasonable. The State specifically
argues appellant failed to rebut the presumption of proper police conduct because he did
not produce any evidence demonstrating he was subjected to a warrantless search. At the
hearing on the motion to suppress, appellant did not present affirmative testimony that a
warrantless search was conducted of his vehicle. Though appellant generally alleged a
warrantless search and seizure in all three of his motions to suppress, the State asserts
that this Court should not consider the allegations in appellant's motions to determine
whether appellant rebutted the presumption of proper police conduct at the suppression
hearing.
In Bishop v. State, (14) the Texas Court of Criminal Appeals discussed the role
allegations in a motion to suppress should play in an appellate court's determination of that
motion. In Bishop, the trial court heard the defendant's motion to suppress on affidavits
only and overruled it. (15) On appeal, the court of appeals held that the defendant failed to
meet her burden to rebut the presumption of proper police conduct because her affidavit
contained no statement that the stop and search were conducted without a warrant. (16)
While the defendant's unsworn suppression motion did claim that she was the subject of
a warrantless arrest, the court of appeals held that she failed to produce any affirmative
evidence because an unsworn motion is not evidence. (17) The court of criminal appeals
reversed the decision, holding that the trial court should have considered the allegation in
the defendant's motion to suppress. (18)
The State discusses Bishop at length and submits that it was incorrectly decided.
The State contends that the holding in Bishop conflicts with the general rule that
allegations in pleadings are not evidence and are never self-proving. The State also
argues that Handy v. State, (19) a recent decision from the court of criminal appeals, implicitly
overruled Bishop to the extent that Bishop held that a mere allegation in a motion to
suppress that a search or seizure was warrantless is sufficient to rebut the presumption of
proper police conduct.
We need not address the State's contentions since they do not directly apply to the
case-at-hand. We find that the present case is more analogous to Russell v. State, (20) than
Bishop. In Russell, the arresting officer testified about the seizure the defendant
challenged at the hearing on the motion to suppress. (21) At no point in his testimony did the
officer state the seizure was warrantless. (22) However, the court of criminal appeals
concluded that "from Officer Graves' testimony it is obvious that no warrant was obtained."
Therefore, it appears that the court's determination was based on the totality of the officer's
statements at the hearing. (23)
In the instant case, the hearing on appellant's motion to suppress was recorded and
this Court was given the opportunity to review the testimony of two officers who were
present during appellant's detention. We find that from the officers' testimony, it is obvious
that no warrant was obtained. Furthermore, we note that at the conclusion of the hearing,
the judge stated that the real question was whether or not the time between the stop and
the time the dog alerted was an unreasonable amount of time based on the totality of the
circumstances and knowledge of the defendant, as well as the situation. These statements
implicitly reveal that the judge had also determined that the search was made without a
warrant.
The State's arguments regarding whether an appellate court can or should consider
the allegations in the motion to suppress are immaterial. We do not look to the allegations
in appellant's motion to suppress to guide our determination, but find, after reviewing the
testimony at the hearing, that appellant did meet his initial burden of rebutting the
presumption of proper police conduct.
C. The Permissible Scope of the Traffic Stop
Routine traffic stops closely resemble investigative detentions and are governed by
Terry v. Ohio. (24) In Terry, the United States Supreme Court adopted a dual inquiry to
determine the reasonableness of an investigative detention: (1) whether the officer's
action was justified at its inception, and (2) whether it was reasonably related in scope to
the circumstances which justified the interference in the first place. (25) To determine
"reasonableness" we utilize an objective standard, asking whether the facts available to the
officer at the moment of the search or seizure warrant a person of reasonable caution to
believe that the action taken was appropriate. (26) The reasonableness of a temporary
detention is based on the totality of the circumstances. (27) Furthermore, in determining
reasonableness, we balance the nature of the intrusion into an individual's right to be free
of arbitrary detentions and intrusions against the public interest at stake. (28)
Appellant does not contest the officers' actions in pulling him over for making an
illegal turn and detaining him long enough to check for warrants and write a citation.
Appellant's challenge concerns the validity of the extension of the routine traffic
investigation to wait for the arrival of the narcotics canine unit. Therefore, our analysis
focuses on the second prong in Terry.
To be related in scope, the investigation must be limited by the underlying
justification for the stop. (29) An investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop. (30) The permissible duration of an
investigative detention is measured by the time reasonably necessary to complete a brief
investigation of the matters that justified the stop. (31)
In the present case, appellant was stopped for the traffic violation of making an
illegal left turn and failing to properly signal. (32) A stop based on a violation of a traffic
regulation will not justify detention to await the arrival of a drug detection dog. (33) Therefore,
detaining appellant for 25 to 40 minutes to wait for the narcotics canine unit cannot be
justified on the basis of the traffic stop alone.
D. Reasonable Suspicion to Detain
The issue remains whether the State satisfied its burden to demonstrate that officers
had reasonable suspicion of criminal activity that would justify the prolonged detention to
wait for the arrival of the canine unit. Under Terry, a police officer may stop and briefly
detain a person reasonably suspected of criminal activity on less information than is
constitutionally required for probable cause to arrest. (34) An investigative detention is
reasonable when the detaining officer has "specific articulable facts," which taken together
with rational inferences from those facts, lead him to conclude that the particular person
actually is, has been or soon will be engaged in criminal activity. (35) Due weight must be
given, not to the officer's inchoate and unparticularized suspicion or "hunch," but to the
specific reasonable inferences that he is entitled to draw from the facts in light of his
experience. (36) If an officer has a reasonable suspicion that a vehicle contains narcotics, he may
temporarily detain it to allow an olfactory inspection by a trained police dog. (37) While this
Court has recognized that a police officer may detain a vehicle to await the arrival of a
narcotics detection dog, it did so while stressing that the officer must have specific
articulable facts that, under the totality of the circumstances, raise a reasonable suspicion
that the vehicle contains contraband. (38)
In the case now before this Court, Officer Gill testified that he had arrested appellant
twice before and that he had a reasonable belief that appellant had some kind of
contraband in his car. Gill did not state why he had such a belief; in fact, he testified that
prior to the search, he had not seen any contraband in the vehicle, nor had he observed
appellant involved in anything that appeared to be an illegal drug transaction. While he
testified that he had received information from a confidential informant that prompted him
to conduct surveillance in the area around the 4300 block of Hardy, he did not state what
information was given by the informant or whether it specifically concerned appellant, nor
did he provide any information regarding the informant. As a result, this Court cannot
assess the credibility of the informant or the reliability of the information provided. The
situation before this Court, therefore, is analogous to an attempt to justify an investigative
detention based on an anonymous tip. (39)
When an investigative detention is based solely on an anonymous tip, the court
often has no way of evaluating the reliability of the information from the anonymous
source. (40) If an anonymous tip has a low degree of reliability, more information will be
required to establish the requisite level of suspicion to justify an investigative detention. (41)
An anonymous tip may, however, be sufficient if it contains sufficient "indicia of reliability"
or if some aspects of it are sufficiently corroborated. (42) An officer's prior knowledge, his
experience, and his corroboration of the details of the tip may be considered giving the
anonymous tip the weight it deserves. (43) Mere corroboration of details, however, that are
easily obtainable at the time the information is provided will not support a finding of
probable cause nor furnish the basis for reasonable suspicion. (44)
In the instant case, we have little information regarding the specificity of the third-party information received by Officer Gill; we cannot determine whether the information
contains sufficient indicia of reliability or if some aspects of it are sufficiently corroborated.
Whatever the information may have been, it is evident that the only details that were
corroborated were those that were easily obtainable, given that Gill testified to only seeing
appellant drive in the area under surveillance prior to the stop. Furthermore, while Gill did
testify that the area under surveillance had "a lot of narcotics" activity, and that he had
"dealt with [appellant] before," he did not state how he was familiar with appellant, whether
he was aware of appellant's criminal record, if any, or whether he was familiar with
appellant's vehicle. Therefore, while an inadequate tip may be supported by an officer's
prior knowledge and experience, (45) we cannot say that Gill's experience and knowledge
aided the corroboration of the tip.
We find that the State never established articulable facts to sufficiently support a
reasonable suspicion to detain appellant longer than necessary to write a citation and
check for warrants. At best, the officers possessed only an inarticulable hunch or
speculative suspicion of appellant's wrongdoing. (46) The continued detention of appellant
was in violation of the Fourth Amendment and the Texas Constitution; (47) accordingly, the
trial court erred in not suppressing the evidence. (48)
E. Search was Incident to a Lawful Custodial Arrest
At the conclusion of its brief, the State asserts that the trial court's suppression
ruling should be upheld because the "court could have reasonably found, and therefore
implicitly found, . . . that the search of appellant's vehicle in the instant case was lawfully
conducted as incident to appellant's warrantless custodial arrest for the traffic offenses of
making an illegal turn and improper signaling." To support this argument, the State cites
to statutes and case law to support the proposition that an officer is authorized to arrest a
person found committing a traffic violation other than speeding, as well as to show that
upon such an arrest, an officer may search the interior of the stopped vehicle.
We do not believe the trial court could have reasonably concluded that appellant
had been arrested prior to the search of his vehicle. Officer Gill never testified that
appellant was under arrest or that he had been handcuffed; according to Gill, appellant had
simply been placed in a patrol car for "safety reasons" and "to prevent any kind of
tampering with any evidence that might be in the vehicle." In light of this explanation, the
trial court could have only reasonably concluded that appellant was merely being restrained
in the patrol car so that officers could safely investigate the scene while preserving the
status quo. (49) We thus find no merit in the State's argument that the search of appellant's
vehicle was incident to a lawful custodial arrest.
III. Conclusion
We conclude the trial court erred in overruling the motion to suppress evidence.
Accordingly, the judgment of conviction is reversed and the cause is remanded to the trial
court.
LINDA REYNA YAÑEZ,
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Memorandum opinion delivered and filed
this the 2nd day of August, 2007.
1. Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003).
2. In his three issues, appellant specifically complains that his detention amounted to an unlawful
seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution, as well as
article 1, section 9 of the Texas Constitution. U.S. Const. amends. IV, XIV; Tex. Const. art. I, § 9.
3. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323,
327 (Tex. Crim. App. 2000).
4. Arnold v. State, 873 S.W. 2d 27, 34 (Tex. Crim. App. 1993).
5. Perales v. State, 117 S.W.3d 434, 437 (Tex. App.-Corpus Christi 2003, pet ref'd.); Morrison v. State,
71 S.W.3d 821, 827 (Tex. App.-Corpus Christi 2002, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997)).
6. Morrison, 71 S.W.3d at 827.
7. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006); Morrison, 71 S.W.3d at 827.
8. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
9. Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539,
543 (Tex. Crim. App. 1990).
10. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
11. Id.
12. Id.
13. Moreno v. State, 124 S.W.3d 339, 344 (Tex. App.-Corpus Christi 2003, no pet.); see also McGee
v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003).
14. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002).
15. Id. at 820.
16. Id. at 821.
17. Id.
18. Id. at 822.
19. Handy v. State, 189 S.W.3d 296 (Tex. Crim. App. 2006).
20. Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986).
21. Id. at 9-10.
22. Id. at 11-13; see also Richards v. State, 150 S.W.3d 762, 766-67 (Tex. App.-Houston [14th Dist.]
2004, pet. ref'd) (discussing Russell).
23. Richards, 150 S.W.3d at 767; see also Russell, 717 S.W.2d at 10.
24. Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
25. Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
26. Id. at 21-22; Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
27. Ford, 158 S.W.3d at 492 (citing Balentine, 71 S.W.3d at 768).
28. Zayas v. State, 972 S.W.2d 779, 789 (Tex. App.-Corpus Christi 1998, pet. ref'd).
29. Terry, 392 U.S. at 29.
30. Florida v. Royer, 460 U.S. 491, 500 (1983).
31. St. George v. State, 197 S.W.3d 806, 817 (Tex. App-Fort Worth 2006), pet. granted, 2006 Tex.
Crim. App. LEXIS 2459 (Tex. Crim. App. Dec. 20, 2006).
32. See Tex. Transp. Code Ann. §§ 545.101, 545.104 (Vernon 1999).
33. $217,590 in U.S. Currency v. State, 54 S.W.3d 918, 924 (Tex. App.-Corpus Christi 2001, no pet.).
34. Terry, 392 U.S. at 22.
35. Ford, 158 S.W.3d at 492.
36. Terry, 392 U.S. at 27.
37. $217,590 in U.S. Currency, 54 S.W.3d at 924.
38. See id.
39. See Ebarb v. State, 598 S.W.2d 842, 844-45 (Tex. Crim. App. 1980); Davis v. State, 989 S.W.2d
859, 864 (Tex. App.-Austin 1990, pet ref'd).
40. See Ebarb, 598 S.W.2d at 844-45.
41. See Alabama v. White, 496 U.S. 325, 330 (1990).
42. Id. at 329-32.
43. Id. at 329-30.
44. See Gates v. Illinois, 462 U.S. 213, 245 (1983).
45. Davis, 989 S.W.2d at 865.
46. See Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim. App. 1984).
47. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2002); Wong Sun v. United States, 371 U.S.
471, 484-85 (1963).
48. We note that in its brief, the State argues that appellant should be estopped from complaining that
the record fails to show reasonable suspicion existed for a continued detention because his objections during
the hearing on the motion to suppress prevented the State from showing the necessity of the detention. At
the hearing, appellant objected to Gill testifying as to the nature of the information relayed to him by the
informant; appellant's objections were sustained.
From what we can determine, it appears that the State is arguing the doctrine of invited error. See
Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (stating that invited error is properly thought of
as estoppel). The doctrine of invited error applies when the trial court makes a ruling in compliance with a
request from the complaining party, and then on appeal, the complaining party assigns that invited action as
a ground for reversal. First Am. Title Ins. Co. of Texas v. Willard, 949 S.W.2d 342, 348 (Tex. App.-Tyler
1997, writ denied); see also Gutierrez v. State, 659 S.W.2d 423, 424 (Tex. Crim. App. 1983). However, in the
present case, appellant does not complain that his objections should not have been sustained by the trial
court. Rather, appellant complains that the State did not meet its burden of establishing that the officer had
a reasonable suspicion for the prolonged detention; therefore, it was error for the trial court to deny the motion
to suppress. Thus, we find that the doctrine of invited error does not apply in this case.
49. See Zayas v. State, 972 S.W.2d 779, 790-91 (Tex. App.-Corpus Christi 1998, pet. ref'd).
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CORPORATE SYSTEMS RESOURCES,
Plaintiff,
v. Civil Action No. 13-1258 (BAH)
WASHINGTON METROPOLITAN AREA Judge Beryl A. Howell
TRANSIT AUTHORITY, et al.
Defendants.
MEMORANDUM OPINION
The plaintiff, Corporate Systems Resources, alleges in this breach of contract suit that it
is owed approximately $160,000 under a subcontract with Defendant LTK Consulting Services
Inc. (“Defendant LTK”), which served as the “prime” contractor for Defendant Washington
Metropolitan Area Transit Authority (“Defendant WMATA”). Pending before the Court are
Motions to Dismiss by both defendants under Federal Rule of Civil Procedure 12(b)(6), and by
Defendant WMATA under Rule 12(b)(1). Defs.’ Mots. Dismiss, ECF Nos. 5, 7. For the reasons
set forth below, the defendants’ motions are granted.
I. BACKGROUND
The plaintiff is a “District of Columbia Corporation” and a “Certified Disadvantage [sic]
Business Enterprise.” Compl. ¶ 3, ECF No. 1-3. 1 The claims at issue allegedly arise from work
performed by the plaintiff as a subcontractor to a prime contract awarded to Defendant LTK by
Defendant WMATA “to provide personnel for contract administration for WMATA’s railcar
engineering services project.” Id. ¶ 6. The plaintiff first entered into a “Time and Materials
1
All facts are taken from the complaint and assumed to be true for the purposes of a motion to dismiss. See, e.g.,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
1
Subcontract” with another subcontractor of Defendant LTK, called Unified Industries
Incorporated (“UII”), on August 27, 2010 to provide contract administration services. See
Compl. Ex. 3 (Subcontract No. 6502-2 between UII and Plaintiff dated August 27, 2010), ECF
No. 1-3. The plaintiff subsequently entered into a subcontract directly with Defendant LTK on
January 5, 2012 to provide the same services. Compl. Ex. 2 (Subcontractor Letter Agreement
between plaintiff and Defendant LTK entered into on January 5, 2012) (the “Subcontract”) at 1,
ECF No. 1-3. 2
The Subcontract incorporated by reference the Prime Contract between Defendants LTK
and WMATA, and stated that the plaintiff “shall be compensated for the services provided” to
Defendant LTK. Id. The Subcontract provided that the plaintiff’s rates were “subject to review
by WMATA’s audit group” and “[s]hould the review result in a change to the rates” charged by
the plaintiff, “the [plaintiff’s] invoices will be adjusted to reflect the change.” Id. Finally, the
Subcontract stated that “[p]ayments due to [the plaintiff] . . . shall be made within ten calendar
days after receipt of payment by LTK from WMATA. Any payments due to [the plaintiff] by
LTK are contingent upon LTK receiving payment from WMATA.” Id. at 2.
The plaintiff alleges that it “performed all the services required under the contracts from
which [Defendant] WMATA greatly benefited” and that the plaintiff “submitted all
documentation required by the contracts and invoiced for payments.” Compl. ¶¶ 10–11.
Nevertheless, the plaintiff alleges that Defendant “LTK and UII informed [the plaintiff] that it
had not received payment from WMATA for the work performed by [the plaintiff] on the
outstanding invoices.” Id. ¶ 12. The plaintiff alleges that “[a]fter all reconciliation of payments,
2
The parties do not explain why the plaintiff’s contract shifted from UII to Defendant LTK in 2012, but this change
is ultimately irrelevant to the instant motion. Although the complaint alleges that the plaintiff has not received full
payment of invoices submitted “since July 30, 2010,” Compl. ¶ 27, which includes the period when UII was the
contracting party with the plaintiff, UII is not named as a defendant in this action.
2
accounts and credits given, the Defendants owe the amount of $158,800.76 not including
interest.” Id. ¶ 13. Despite making a demand for payment, “the Defendants have failed and
refuses [sic] to pay [the plaintiff] for the services rendered for which payment is due and owing
to [the plaintiff].” Id. ¶ 14.
The plaintiff sets forth three causes of action against both defendants, namely, breach of
contract for “failing to pay [the plaintiff] for services rendered,” (Count I), id. ¶ 17; “Quantum
Merit [sic]” because “[t]he Defendants would be unjustly enriched if they were permitted to
retain the benefits of the services rendered by [the plaintiff] without having to pay for those
services,” (Count II), id. ¶ 22; and “Account Stated,” alleging that the plaintiff “sent the
Defendants invoices for services rendered,” id. ¶ 27, and that those invoices have not been paid,
(Count III), id. ¶ 29.
This matter was originally filed in D.C. Superior Court and removed to this Court by
Defendant WMATA pursuant to D.C. Code § 9-1107.10, which grants “United States district
courts . . . original jurisdiction, concurrent with the courts of Maryland and Virginia, of all
actions brought by or against the [Defendant WMATA].” See Not. Removal, ECF No. 1. 3 Upon
removal, both defendants timely moved to dismiss for failure to state a claim upon which relief
can be granted and, as to the quantum meruit claim against Defendant WMATA, for lack of
subject matter jurisdiction. See Defs.’ Mots. Dismiss; FED. R. CIV. P. 12(b)(1), (b)(6). In its
opposition to Defendant WMATA’s motion to dismiss, the plaintiff “concede[d] WMATA’s
motion as to Counts II & III.” Pl.’s Opp’n Def. WMATA’s Mot. Dismiss (“Pl.’s WMATA
Opp’n”) at 3, ECF No. 10. Accordingly, Counts II and III against Defendant WMATA are
3
The complaint also states that the amount in dispute is more than $75,000, see Compl. ¶ 13 (alleging $158,800.76
due to plaintiff), and that the plaintiff is diverse from Defendant LTK, see Compl. 3, 5 (identifying plaintiff as
domiciled in D.C. and Defendant LTK as a “foreign corporation”); see also Compl. Ex. 2 (showing, on face of
Subcontract, that Defendant LTK is located in Pennsylvania). Thus, jurisdiction in the absence of Defendant
WMATA is proper under 28 U.S.C. § 1332(a) for complete diversity.
3
dismissed and the Court need only evaluate the parties’ arguments under Federal Rule of Civil
Procedure 12(b)(6).
II. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
FED. R. CIV. P. 8(a). A motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of
success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974) abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982). Although “detailed factual allegations” are not required to withstand a
Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” to provide
“grounds” of “entitle[ment] to relief.” Twombly, 550 U.S. at 555 (alteration in original). “Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557)
(alteration in original). The Supreme Court stated that “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
III. DISCUSSION
Due to the plaintiff’s concession of Counts II and III against Defendant WMATA, the
only live claim against Defendant WMATA is Count I, for breach of contract. All three counts
4
remain contested against Defendant LTK. The remaining count against Defendant WMATA is
examined first before turning to the claims against Defendant LTK.
A. Defendant WMATA
Under District of Columbia law, 4 in order to show a breach of contract, “a party must
establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the
contract; (3) a breach of that duty; and (4) damages caused by breach.” Logan v. LaSalle Bank
Nat’l Ass’n, 80 A.3d 1014, 1023 (D.C. 2013) (quoting Tsintolas Realty Co. v. Mendez, 984 A.2d
181, 187 (D.C. 2009)); Osseiran v. Int’l Fin. Corp., 950 F. Supp. 2d 201, 208 (D.D.C. 2013)
(same). A valid contract “requires both: (1) intention of the parties to be bound; and (2)
agreement as to all material terms.” Steven R. Perles, P.C. v. Kagy, 473 F.3d 1244, 1249 (D.C.
Cir. 2007) (citing Simon v. Circle Assocs., 753 A.2d 1006, 1012 (D.C. 2000)). Defendant
WMATA argues that the plaintiff’s breach of contract claim must be dismissed because the
plaintiff “has not alleged, and cannot allege, that there was a valid contract between WMATA
and [the plaintiff].” Def. WMATA’s Mem. Supp. Mot. Dismiss (“Def. WMATA’s Mem.”) at 4,
ECF No. 5-1. Defendant WMATA is correct.
The complaint makes clear that the plaintiff had no direct contract with Defendant
WMATA, stating that Defendant WMATA awarded the Prime Contract to Defendant LTK and
UII. Compl. ¶ 6. 5 Indeed, Defendant WMATA is named in only three other places in the
Complaint: in the introductory paragraph naming the parties, see Compl. at 1; in a paragraph
identifying Defendant WMATA as a “tri-jurisdictional government agency,” id. ¶ 4; and in
4
Federal courts apply the common law of the jurisdictions in which they sit. See Tidler v. Eli Lilly & Co., 851 F.2d
418, 424 (D.C. Cir. 1988) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). The parties have not argued that any
other jurisdiction’s law should apply.
5
The complaint alleges that UII was “the prime contractor of the Contract,” Compl. ¶ 7, but this allegation is
inconsistent with Exhibit 3, the subcontract between the plaintiff and UII, which clearly states that the prime
contract is with Defendant LTK.
5
Paragraph 10, where the plaintiff alleges that it “performed all the services required under the
contracts from which [Defendant] WMATA greatly benefited.” The plaintiff attached portions
of the Prime Contract between the two defendants, the Subcontract, and the contract between the
plaintiff and UII, which confirm that the plaintiff and WMATA are not both parties to any of
those contracts. See Compl. Ex. 1 (naming only Defendant LTK and Defendant WMATA as
parties to Prime Contract); id. Ex. 2 (naming only Defendant LTK and plaintiff as parties to
Subcontract); id. Ex. 3 (naming only plaintiff and UII as parties to contract). 6
The Subcontract states that Defendant WMATA “has entered into a Contract with
[Defendant LTK] to provide professional Railcar Engineering Services,” and that Defendant
LTK “is permitted to retain subcontractors to perform a portion of the services” required by the
contract. Compl. Ex. 2 at 1. This reference to Defendant WMATA does not make it a party to
the Subcontract. See id. Rather, the Subcontract makes clear that Defendant LTK was
“retain[ing] [the plaintiff] to provide services,” that the plaintiff’s “services will be provided at
the direction of LTK’s Project Manager . . . or his designated replacement,” and that “[i]nvoices
for such services and supporting documentation should be submitted on a monthly basis and be
received by LTK on or before the first day of the following month.” Id. The contract notes that
“[p]ayments due to [the plaintiff] under this Letter Contract shall be made within ten calendar
days after receipt of payment by LTK from WMATA” and that “[a]ny payments due to [the
plaintiff] by LTK are contingent upon LTK receiving payment from WMATA.” Id. at 2. It was
6
The defendants have attached in their opposition papers other portions of the same contracts referenced in the
complaint. The Court may review those contracts on a motion to dismiss. See Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007) (noting court may consider, on motion to dismiss, “facts alleged in the complaint,
documents attached thereto or incorporated therein, and matters of which it may take judicial notice” (quoting
Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006))); Vanover v. Hantman, 77 F. Supp. 2d 91, 98
(D.D.C. 1999) aff’d, 38 F. App’x 4 (D.C. Cir. 2002) (concluding court could properly consider, on motion to
dismiss, chapter of Personnel Manual and “various letters and materials produced in the course of plaintiff’s
discharge proceedings” attached to plaintiff’s opposition that were “referred to in the complaint and [were] central to
plaintiff’s claims” without converting motion to summary judgment).
6
signed by Defendant LTK’s Vice President–CFO and the plaintiff’s President. Id. On its face,
the Subcontract does not present any indication that Defendant WMATA intended to be bound
by the Subcontract, nor that there was substantial agreement between Defendant WMATA and
the plaintiff on all material terms. See Steven R. Perles, P.C., 473 F.3d at 1249. Consequently,
the plaintiff has failed to plead the existence of a valid contract between the plaintiff and
Defendant WMATA.
In opposition, the plaintiff makes two arguments in an unsuccessful attempt to avoid this
conclusion. 7 First, the plaintiff contends that it was a third-party beneficiary to the Prime
Contract. Pl.’s Opp’n Def. WMATA’s Mot. Dismiss (“Pl.’s WMATA Opp’n”) at 7–14, ECF
No. 10. Alternatively, the plaintiff asserts that its relationship with Defendant WMATA could
be construed as being in direct privity because Defendant WMATA had the ability to audit the
plaintiff’s invoices under the Subcontract. Pl.’s WMATA Opp’n at 14.
At the outset, Defendant WMATA is correct that the plaintiff “failed to allege that it was
a third-party beneficiary of the WMATA-LTK Contract in its Complaint.” Def. WMATA’s
Reply Pl.’s Opp’n Def. WMATA’s Mot. Dismiss (“Def. WMATA’s Reply”) at 3, ECF No. 11.
Since this third-party beneficiary status argument is not pleaded in the complaint, it is not
properly before the Court on a Rule 12(b)(6) motion. Arbitraje Casa de Cambio, S.A. de C.V. v.
U.S. Postal Serv., 297 F. Supp. 2d. 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint
7
The plaintiff further argues that motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) are
“disfavored,” citing the more lenient “no set of facts” standard from Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
Pl.’s WMATA Opp’n at 6–7. The Conley “no set of facts” standard was abrogated by Twombly, which established
the current standard for 12(b)(6) motions and made clear that dismissal of cases on such motions is not “disfavored”
when the plaintiff fails to make “[f]actual allegations [specific] enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation omitted); see also Jones v. Horne, 634 F.3d 588, 596 n.4 (D.C. Cir.
2011) (noting that the Supreme Court has “abrogated the Conley formulation in [Twombly]”). Consequently, the
plaintiff’s reliance on pre-Twombly case law in support of its arguments against the defendants’ motions to dismiss
is misplaced.
7
may not be amended by the briefs in opposition to a motion to dismiss.” (quoting Coleman v.
Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000))).
In support of its position that the plaintiff qualifies as a third-party beneficiary to the
Prime Contract, the plaintiff cites fifteen sections of Defendant WMATA’s procurement
procedures manual (“PPM”) which, according to the plaintiff, were incorporated into the Prime
Contract and indicate that the plaintiff “was at the least a third-party beneficiary.” See Pl.’s
WMATA Opp’n at 11–13. The cited provisions generally set out standards and policies which
are applicable to contracts with WMATA and to which its prime contractors should adhere in
subcontracting work. Several of these provisions refer to the prime contractor’s responsibility to
pay subcontractors on a “timely” basis or “no later than,” or “within,” ten days from the receipt
of each payment from Defendant WMATA, see id. at 12 (citing PPM §§302, 305.1, 307.3),
while also requiring each prime contract to provide for reduction in price due to “submission of .
. . subcontractor defective cost or pricing data,” see id. (citing PPM §1314.3).
Merely mentioning subcontractors in generally applicable polices does not establish those
subcontractors as third-party beneficiaries under any contract to which the policies apply; more
is required to gain the status of a third-party beneficiary to a contract. See Fort Lincoln Civic
Ass’n, Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1064 (D.C. 2008) (“Third-party
beneficiary status requires that the contracting parties had an express or implied intention to
benefit directly the party claiming such status.” (quoting Alpine Cty., Cal. v. United States, 417
F.3d 1366, 1368 (Fed. Cir. 2005))). Nothing in the generally applicable policies contained in the
PPM indicates that Defendant WMATA had an “express or implied intention to benefit directly”
all subcontractors to its contracts. Moreover, the plaintiff has failed to plead that, in the context
8
of the specific contract at issue, Defendant WMATA had any intention to expressly or impliedly
benefit the plaintiff.
The sections cited by the plaintiff may provide some incidental benefits to
subcontractors, but such a party that incidentally benefits from contractual provisions to which it
is not a party is not a third-party beneficiary. See Fort Lincoln Civic Ass’n, Inc., 944 A.2d at
1064–65 (“An incidental beneficiary is a person who will be benefited by performance of a
promise but who is neither a promisee nor an intended beneficiary.” (quoting RESTATEMENT
(SECOND) OF CONTRACTS (1981) § 315)). The language relied upon by the plaintiff merely
indicates that it could incidentally benefit from the Prime Contract, not that it was the intended
beneficiary of that contract. See Sealift Bulkers, Inc. v. Republic of Armenia, No. 95-1293, 1996
WL 901091, at *4 (D.D.C. Nov. 22, 1996) (“Under general contract principles, a third party
beneficiary of a contract may bring an action against the principal parties to that contract only
when the parties to the contract intended to create and did create enforceable contract rights in
the third party.” (citing Beckett v. Air Line Pilots Assoc., 995 F.2d 280, 286 (D.C. Cir. 1993));
see also Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263 (Fed. Cir. 2005) (holding that
government contract officer must “be put on notice, by either the contract language or the
attendant circumstances, of the relationship between the prime contractor and the third-party
subcontractor so that an intent to benefit the third party is fairly attributable to the contracting
officer” before third-party beneficiary status is conferred). To the contrary, General Provision §
42 of the Prime Contract states, in subpart (e), that “[n]othing in this provision is intended to
create a contractual obligation between the [Defendant WMATA] and any subcontractor or to
alter or affect traditional concepts of privity of contract between all parties.” Pl.’s WMATA
9
Opp’n at 5 n.4. 8 Far from showing an intent to benefit the plaintiff, the language in § 42(e)
makes clear that the parties did not intend to create a contractual relationship between Defendant
WMATA and any subcontractors. The sections quoted by the plaintiff also bolster Defendant
LTK’s argument that a duty to pay the plaintiff was triggered only when Defendant LTK was
paid by Defendant WMATA. See Pl.’s WMATA Opp’n at 12 (“The prime contractor shall
certify . . . that payment has been or will be made to all subcontractors due payment, within ten
days after receipt of payment from [Defendant WMATA] for work by those subcontractors.”)
(quoting procurement policy § 307.3); see also Part III.B.1, infra.
Even assuming, arguendo, that the plaintiff were a third-party beneficiary, the plaintiff
would still fail to state a valid claim for breach of contract against Defendant WMATA. The
plaintiff relies heavily upon Sullivan v. United States, 54 Fed. Cl. 214, 215 (“Sullivan I”) (Fed.
Cl. 2002), to support its contention that, as a third-party beneficiary, it has a claim against
Defendant WMATA, see Pl.’s WMATA Opp’n at 8–11. Such reliance is unfounded, since
8
The plaintiff relies on four cases in an attempt to show that subsection 42(e) “is ineffective regarding the fact that
the subcontractor is at the very least a third party beneficiary of this provision,” namely, Shea-S&M Ball v.
Massman-Kiewit-Early, 606 F.2d 1245, 1248 (D.C. Cir. 1979); Paccon, Inc. v. United States, 399 F.2d 162, 164–66
(Ct. Cl. 1968); L.L. Hall. Const. Co. v. United States, 379 F.2d 559, 560–61 (Ct. Cl. 1966); and Hoffman v. United
States, 340 F.2d 645, 652 (Ct. Cl. 1964). Pl.’s WMATA Opp’n at 5 n.4. All four cases are easily distinguishable,
since the parties in all four cases were prime contractors in direct privity with the government, none of them
involved or even discussed subcontractors, and each case involved specific contractual language absent from the
instant contract. Shea-S&M Ball involved two prime contractors, working on adjoining portions of tunnels for the
construction of the Washington, D.C. subway. 606 F.2d at 1247–48. In that case, the court found that one prime
contractor was a third-party beneficiary of another prime contract, which required all adjoining contractors to take
measures to avoid sewer overflows into adjoining sections of tunnel. Id. at 1247–48 & n.2 (quoting contractual
language stating “[a]ny damage, disruption or interference resulting directly or indirectly from [one contractor’s]
operations shall be repaired or restored by [that] Contractor”). Hoffman involved a similar situation where one
prime contractor’s river dam changed the environment around another prime contractor’s bridge abutments,
resulting in delay to the latter’s project. 340 F.2d at 648. The Hoffman court found that the government agency that
was in privity to both prime contractors could have ordered the two to cooperate, but did not do so, resulting in
damage to the plaintiff. Id. at 650–52. Paccon, Inc. involved a prime contractor and, in that case, the contractor had
specific contractual language requiring it to coordinate its schedule with other contractors so as to avoid delays;
language that is wholly absent here. See Paccon, Inc., 399 F.2d at 164–66. Finally, L.L. Hall Construction Co.
involved a breach of contract suit brought by a contractor in direct privity with the government where the
government, through its own efforts, unreasonably delayed the contractor and then sought to deny liability for
damages caused to the contractor. See L.L. Hall Const. Co., 379 F.2d at 560–61.
10
Sullivan amply illustrates why the plaintiff has failed to state an actionable claim against
Defendant WMATA.
In Sullivan I, two private plaintiffs sued the United States for breach of contract after they
were injured in a motor vehicle accident between one of the plaintiffs and a U.S. Postal Service
contractor. 54 Fed. Cl. at 215. The plaintiffs claimed that the contractor did not adhere to the
terms of its contract with the United States to maintain a certain amount of liability insurance,
thus reducing the amount of money available to compensate them for their injuries. See id. The
Sullivan I court did not, as the plaintiffs contend, find “in favor of the plaintiff under the theory
that the plaintiff was a third party beneficiary.” Pl.’s WMATA Opp’n at 8. On the contrary, the
Sullivan I court declined to make such a finding at the motion to dismiss stage of the
proceedings, but nonetheless permitted the case to go forward because “it is more likely than not
under the facts that the [plaintiffs] would have standing to assert a claim against both [the
contractor] and [the government].” Id. at 217 (applying Federal Circuit standard for motions to
dismiss for lack of subject matter jurisdiction under Rule of the Court of Federal Claims
12(b)(1)).
Following summary judgment briefing, the trial court found in favor of the plaintiffs and
the government appealed. Sullivan v. United States, 625 F.3d 1378, 1379 (“Sullivan II”) (Fed.
Cir. 2010). The Federal Circuit reversed the trial court’s finding of government liability on the
breach of contract claim and entered judgment in favor of the government. Id. at 1381. The
Sullivan II court assumed, without deciding, 9 that the plaintiffs were third party beneficiaries to
9
The Sullivan II court cast significant doubt on the idea that the citizen-plaintiffs were actually third-party
beneficiaries, stating in dicta that “[o]rdinarily, liability insurance is purchased to protect the insured party,”—in
Sullivan II, the contractor—“from paying potential losses from [its] own pocket.” Sullivan II, 625 F.3d at 1380.
The court went on to state that the Postal Service’s procurement manual made clear that “contractors may be
required to carry insurance only when necessary to protect the interest of the Postal Service.” Id. Therefore, the
Sullivan II court opined, the “Government’s intent in requiring the carrier to carry additional liability insurance is to
protect the Postal Service from potential risk to the Postal Service—not to compensate others.” Id.
11
the contract between the government and the postal service contractor. See id. at 1380. In
examining the plaintiffs’ breach of contract claim against the government, the court determined
that the government did not breach the contract in question, since the contractor was the one
contractually required to maintain liability insurance. See id. at 1380–81. The Sullivan II court
found that, at most, the Postal Service “failed to enforce a contract provision that it was entitled
to enforce.” Id. at 1381. Since the government did not breach the contract, it could not be held
liable by a third-party beneficiary for any breach. See id.
To the extent that Sullivan I and II apply to the instant matter, as the plaintiff contends,
Sullivan II is fatal to the plaintiff’s breach of contract claim against Defendant WMATA.
Similarly to the parties in Sullivan II, the plaintiff alleges that the defendants failed to pay the
plaintiff “for services rendered.” See Compl. ¶ 17. The plaintiff cites a portion of the Prime
Contract, which “required LTK to pay [the plaintiff] within ten (10) days of receipt of payment
from WMATA.” Pl.’s WMATA Opp’n at 10 (citing General Provision § 42 from Prime
Contract). In pleading that the plaintiff had performed under the Subcontract, Defendant LTK
was to pay the plaintiff, and that it did not do so, see Compl. ¶¶ 10–14, the plaintiff has pleaded,
just as in Sullivan II, that Defendant LTK breached its contract with Defendant WMATA. Under
the procurement policies, Defendant LTK was obligated to certify that it was paying its
subcontractors on time to Defendant WMATA. See id. If it failed to do so, Defendant LTK
would be breaching its obligation to Defendant WMATA. Thus, just as in Sullivan II, the most
that could be said here is that Defendant WMATA “failed to enforce a contract provision that it
was entitled to enforce.” Sullivan II, 625 F.3d at 1381. Declining to enforce a contract right
does not constitute a breach by Defendant WMATA of any contract. 10 The plaintiff decidedly
10
Another case relied upon by the plaintiff, First Hartford Corp. Pension Plan & Trust v. United States (“First
Hartford”), 194 F.3d 1279, 1289 (Fed. Cir. 1999) reinforces this conclusion. In First Hartford, the Federal Circuit
12
has not pleaded that Defendant WMATA breached any aspect of the Prime Contract, let alone
the terms of the Subcontract.
The plaintiff’s alternative argument that it was effectively in privity with Defendant
WMATA fares no better. The plaintiff asserts that because Defendant WMATA was able “to
demand [the plaintiff’s] financial information and the authority to issue a price adjustment,” and
the contract allegedly “made [the plaintiff] subject to the [PPM] requirements,” Defendant
WMATA “became a party to the subcontract.” Pl.’s WMATA Opp’n at 14. The only case on
which the plaintiff relies in support of this argument is United States v. Johnson Controls, Inc.,
713 F.2d 1541, 1551 (Fed. Cir. 1983), see Pl.’s WMATA Opp’n at 14, but that case is wholly
inapposite and, to the extent that it has any bearing on this case, it cuts against the plaintiff.
The Johnson Controls, Inc. court found that, in the context of a dispute between a
subcontractor and the federal government, a subcontractor was generally not in privity with the
government and could not bring suit for breach of contract. 713 F.2d at 1550–51. An exception
to this general rule may apply only when the prime contractor acts as a government agent by “(1)
acting as a purchasing agent for the government, (2) the agency relationship between the
government and the prime contractor [is] established by clear contractual consent, and (3) the
contract state[s] that the government [is] directly liable to vendors for the purchase price.” Id. at
1551 (emphasis in original). None of those factors are pleaded in the plaintiff’s complaint, nor
contained in the excerpts from the Subcontract before the Court. See generally Compl. & Ex. 2.
Moreover, in Johnson Controls, Inc., the court held that even when the government agency had
“sole authority to reject work”; was the “required interpreter of . . . drawings and specifications”;
noted that, as a general rule, suits against the government may only be raised by those in privity with the
government. Id. The exceptions to that rule require the non-party to the contract in question to stand in the shoes of
an entity that is in privity with the government. Id. Here, the party into whose shoes the plaintiff must step is
Defendant LTK, because it is the only party to this suit that was in privity with the government. See generally,
Compl. Defendant LTK has no claim for breach of contract against Defendant WMATA. See supra.
13
made decisions, as in the instant matter, “concerning equitable adjustments for changes and
suspensions of work under subcontracts”; and “decide[d] disputes under the terms of both the
prime contract and subcontract,” privity did not exist between the government and the
subcontractor. 713 F.2d at 1548. Substantially more interaction between the agency and the
subcontractor than has been pleaded here was found insufficient to establish privity in Johnson
Controls, Inc. See id. Thus, the mere fact that Defendant WMATA was able to audit the
plaintiff’s rates and make adjustments to the invoices, see Compl. Ex. 2 at 1, does not establish
privity between the plaintiff and Defendant WMATA.
In sum, not only has the plaintiff not pleaded that it was in privity with Defendant
WMATA, but also, even assuming, arguendo, that the plaintiff was a third-party beneficiary to
the Prime Contract, the plaintiff has not pleaded an actionable breach of contract against
Defendant WMATA. Therefore, the plaintiff has failed to state a claim upon which relief can be
granted as to Count I and that count must be dismissed. The nature of the plaintiff’s claim
against Defendant WMATA also makes any amendment of its pleading futile, since the plaintiff
has explicitly alleged and argued that Defendant WMATA’s prime contractor, rather than
Defendant WMATA itself, engaged in a breach of contract by failing to pay the plaintiff. See
Compl. ¶ 8, 12; Pl.’s WMATA Opp’n at 4–5 (noting contract provisions requiring Prime
Contractor, not Defendant WMATA, to pay subcontractors). Since the plaintiff cannot amend its
complaint such that it could survive a motion to dismiss, Count I is dismissed with prejudice.
See Metro. Life Ins. Co. v. Blyther, No. 12-1709, 2013 WL 4579754, at *6 (D.D.C. Aug. 29,
2013) (“An amended complaint would be futile if it . . . could not withstand a motion to
dismiss.” (quoting Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002))).
14
B. Defendant LTK
The plaintiff asserts three claims against Defendant LTK: breach of contract (Count I);
quantum meruit (Count II); and Account Stated (Count III). The fatal deficiencies in each claim
are discussed below.
1. Breach of Contract
On its face, the complaint fails to plead a breach of the Subcontract. Although Defendant
LTK does not dispute the first two elements for a breach of contract claim—that there was a
valid contract between the parties and that Defendant LTK was obliged to pay the plaintiff under
that contract, see generally Def. LTK’s Mem. Supp. Mot. Dismiss (“Def. LTK’s Mem.”), ECF
No. 7-1—this defendant instead contests whether any breach of any duty owed to the plaintiff
occurred, see id. at 5; Def. LTK’s Reply Pl.’s Opp’n Def. LTK’s Mot. Dismiss (“Def. LTK’s
Reply”) at 7, ECF No. 13 (stating that Defendant “LTK is not arguing that there was no contract
between LTK and [the plaintiff], simply that it did not breach that contract.”).
The complaint alleges that the plaintiff “submitted all documentation required by the
contracts and invoiced for payments,” thereby asserting a claim that it performed under the
contract. Compl. ¶ 11. The Subcontract states that “[p]ayments due to [the plaintiff] under this
Letter Contract shall be made within ten calendar days after receipt of payment by LTK from
WMATA,” and that “[a]ny payments due to [the plaintiff] by LTK are contingent upon LTK
receiving payment from WMATA.” Compl. Ex. 2 at 2 (emphasis added). Despite this explicit
condition for payment of the plaintiff’s invoices, the plaintiff fails to plead that Defendant LTK
“receiv[ed] payment from WMATA.” See generally Compl.; Compl. Ex. 2 at 2. The plaintiff
instead pleads that Defendant “LTK and UII informed [the plaintiff] that it [sic] had not received
15
payment from WMATA for the work performed by [the plaintiff] on the outstanding invoices.”
Compl. ¶ 12.
Citing this contractual language, Defendant LTK argues that payment from Defendant
WMATA to Defendant LTK was a condition precedent to Defendant LTK’s obligation to pay
the plaintiff. See Def. LTK’s Mem. at 5; Def. LTK’s Reply at 3. Under D.C. law, a “condition
precedent may be defined as ‘an event, not certain to occur, which must occur, unless its non-
occurrence is excused, before performance under a contract becomes due.’” Wash. Props., Inc.
v. Chin, Inc., 760 A.2d 546, 549 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 224). “No
particular form of words is necessary in order to create an express condition; however, words and
phrases such as ‘if’ and ‘provided that,’ qualifying a promise, are commonly used to indicate that
the duty of the promisor has expressly been made conditional.” Id.
The plaintiff acknowledges that the Subcontract makes payment due “ten calendar days
after receipt of payment by LTK from WMATA,” and that “any payments due to [the plaintiff]
by LTK are contingent upon” receipt of such payment. Compl. Ex. 2 at 2; see Pl.’s Opp’n Def.
LTK’s Mot. Dismiss (“Pl.’s LTK Opp’n”) at 9, ECF No. 12. Nevertheless, the plaintiff contends
that this clause is ambiguous because the Subcontract also states that the plaintiff “shall be
compensated for the services provided as detailed on each individual task order,” without further
elaboration as to how the two parts of the subcontract are in conflict. Id. at 5, 10–11. 11
11
The plaintiff argues that the Subcontract does not specify what type of payment Defendant LTK had to receive
from Defendant WMATA in order to trigger the duty to pay the plaintiff. Pl.’s LTK Opp’n at 9. Under the
plaintiff’s logic, if Defendant LTK were paid any money at all by Defendant WMATA, it would have to pay the
plaintiff the full amount invoiced by the plaintiff. See id. This argument is belied by the contract provisions the
plaintiff relies upon in its opposition. Specifically, General Provision § 42 of the Prime Contract states “[t]he
Contractor shall pay each subcontractor for satisfactory performance of its contract, or any billable portion thereof,
no later than ten (10) days from the date of the Contractor’s receipt of payment from the Authority for work by that
subcontractor.” Pl.’s LTK Opp’n at 9 (emphasis added). This provision makes plain that Defendant LTK was
bound to pay the plaintiff, as a subcontractor, when paid by Defendant WMATA “for work by” the plaintiff. See id.
Contrary to the plaintiff’s argument, the contract does state payment is due to the subcontractor “only if payment
was especially earmarked for” that subcontractor.
16
Apparently, the plaintiff believes the use of the word “shall” in directing payment to the plaintiff
carries such force as to overcome any other condition set out for payment under the Subcontract.
The plaintiff is incorrect.
The plaintiff also ignores the next two sentences after the sentence quoted by the
plaintiff. These two sentences state that the plaintiff’s rates “are subject to review by WMATA’s
audit group. Should the review result in a change to the rates, the [plaintiff’s] invoices will be
adjusted to reflect the change.” Compl. Ex. 2 at 2. Contrary to the plaintiff’s assertion, the
language in the Subcontract is entirely consistent and unambiguous. When read together, the
only logical reading is that the plaintiff “shall be compensated,” within ten days of Defendant
LTK receiving payment from Defendant WMATA, in the amount on the plaintiff’s invoices,
unless Defendant WMATA adjusts the plaintiff’s rates with a concomitant adjustment to the
plaintiff’s invoices. See Compl. Ex. 2 at 1–2.
It is axiomatic that “[a] contract is not ambiguous simply because the parties have
disputed interpretations of its terms.” Bagley v. Found. for Preservation of Historic
Georgetown, 647 A.2d 1110, 1113 (D.C. 1994). Such ambiguity is present “when, and only
when . . . the provisions in controversy are[] reasonably or fairly susceptible of different
constructions or interpretations . . . and [a contract] is not ambiguous where the court can
determine its meaning without any other guide than a knowledge of the simple facts on which,
from the nature of the language in general, its meaning depends.” Wash. Props., Inc., 760 A.2d
at 548 (quoting Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983)). Here, any ambiguity is
relieved by the clear language in the contract: “any payments due to [the plaintiff] by LTK are
contingent upon” receipt of such payment. Compl. Ex. 2 at 2. Although, “[a]s a general rule of
contract interpretation, there is a presumption in favor of construing doubtful language in a
17
contract as language of promise rather than as language of condition,” Wash. Props., Inc., 760
A.2d at 549 (citing N.Y. Bronze Powder Co. v. Benjamin Acquisition Co., 716 A.2d 230, 234
(Md. 1998)), here, there is no such doubtful language. The Subcontract is clear that Defendant
LTK was to receive payment from Defendant WMATA for the plaintiff’s work before Defendant
LTK was obligated to pay the plaintiff.
The plaintiff pleads that it was informed that the condition precedent to Defendant LTK’s
duty to pay the plaintiff—namely, payment from Defendant WMATA to Defendant LTK—did
not occur. Compl. ¶ 12. Thus, taking all of the facts as alleged in the plaintiff’s complaint as
true, the obligation to pay had not yet been triggered and, consequently, the plaintiff has
affirmatively pleaded that there was no breach. In an attempt to rectify this fatal error, the
plaintiff adds facts not in the record to its opposition, stating “[i]t is Plaintiff’s belief that
[Defendant] LTK has been paid.” Pl.’s LTK Opp’n at 8. This assertion, and the factual basis for
it, are not present in the pleading. See generally Compl. Thus, contrary to the plaintiff’s
assertion that “[t]he difference of the parties’ positions is a fact question,” id. at 8, the plaintiff
has not set forth in the pleadings, as it must, its position that Defendant LTK was actually paid
for the plaintiff’s services by Defendant WMATA. On this basis, the complaint is deficient and
the breach of contract claim must be dismissed.
The reason for this pleading failure becomes clearer when the plaintiff’s briefs in
opposition to both defendants’ motions to dismiss are read together. In the plaintiff’s opposition
to Defendant WMATA’s motion to dismiss, the plaintiff states that Defendant “WMATA
performed a review of [the plaintiff’s] pricing, rates and cost. Thereafter, WMATA issued a rate
reduction,” as provided for in the contract between Defendant LTK and the plaintiff, and
Defendant WMATA “reduced its payments to LTK.” Pl.’s WMATA Opp’n at 6. The plaintiff
18
further alleges that Defendant “WMATA improperly adjusted down [the plaintiff’s] rates and
cost, to the detriment of [the plaintiff].” Pl.’s WMATA Opp’n at 13. While this allegation does
not appear in the complaint, if true, this allegation bolsters the statement in the complaint that
Defendant LTK informed the plaintiff “that it had not received payment from WMATA for the
work performed by [the plaintiff] on the outstanding invoices.” Compl. ¶ 12. Indeed, based on
the plaintiff’s briefing, it would appear that Defendant LTK was not paid the full amount the
plaintiff feels it was owed. 12
Based on these allegations, which were raised for the first time in the plaintiff’s
opposition briefing and do not appear in the complaint, it would appear that the plaintiff’s actual
dispute is with the results of Defendant WMATA’s audit. See Pl.’s WMATA Opp’n at 13
(“WMATA improperly adjusted down [the plaintiff’s] rates and cost, to the detriment of [the
plaintiff].”); Pl.’s LTK Opp’n at 13 (“If WMATA paid LTK less than the total amount of the
invoices it submitted, LTK could have challenged the reduced payment under the WMATA
disputes clause.”). Defendant LTK lends credence to this theory in its briefing by alleging that
the plaintiff “disputed the lack of payment with WMATA and ultimately filed an appeal with the
[Armed Services Board of Contract Appeals (“ASBCA”)] on November 23, 2012.” Def. LTK’s
Mem. at 4. Defendant LTK further alleges that it was only after this appeal was denied that the
plaintiff filed the instant suit. Id.
The plaintiff, adding still more facts to the record that are not in its pleading, states that it
will “be able to show that LTK failed to get Plaintiff’s rates pre-approved” as required by
12
It appears from the briefing that the plaintiff did receive at least some payments for the work done. SeeCompl. ¶
13 (“After all reconciliation of payments, accounts and credits given, the Defendants owe the amount of
$158,800.76.”); see also Def. LTK’s Mem. at 4 (“LTK made all payments to [the plaintiff] which were received
from WMATA for [the plaintiff’s] services, and [the plaintiff] received approximately $382,000 in payments for its
work . . . . However, as a result of an audit by WMATA of [the plaintiff’s] billing rates, WMATA did not remit to
LTK the full amount [the plaintiff] invoiced, and WMATA informed [the plaintiff] of its decision.”).
19
Defendant LTK’s contract with Defendant WMATA. Pl.’s LTK Opp’n at 13. Even assuming
this to be true, such a claim does not set out a breach of contract claim between the plaintiff and
Defendant LTK—it hints at a breach of the Prime Contract, to which the plaintiff was not a
party. See supra Part III.A. Thus, any additional pleading by the plaintiff would be futile, since
the plaintiff’s opposition makes clear that any additional facts the plaintiff could plead would
merely confirm that the condition precedent to trigger Defendant LTK’s duty to pay the plaintiff
did not occur. 13 Accordingly, the plaintiff’s breach of contract claim against Defendant LTK is
dismissed with prejudice. 14
2. Quantum Meruit
The plaintiff’s second cause of action, quantum meruit or unjust enrichment, fails since
quantum meruit is only available in the absence of an express contract. The plaintiff’s argument
that it should be able to plead quantum meruit in the alternative is incorrect. In Plesha v.
Ferguson, 725 F. Supp. 2d 106, 112 (D.D.C. 2010), this court noted that when applying District
of Columbia law to “causes of action [that] clearly involve promises contained in an express
written contract,” the plaintiff must “recover under a breach of contract theory.” This is because
13
Notably, in its opposition to Defendant LTK’s motion to dismiss, the plaintiff admits that Defendant “LTK was
the only party who had a right to challenge a declaration that rates were to be adjusted,” Pl.’s LTK Opp’n at 13, and
that the plaintiff “provided LTK sufficient information to challenge the reduction and request LTK to help correct
the wrongful reduction,” id. at 13 n.4. If, as the plaintiff argues in its opposition to Defendant WMATA’s motion to
dismiss, the plaintiff was actually in privity with Defendant WMATA, the plaintiff would have had some recourse
since it was a party to the Prime Contract. The plaintiff’s admission that it had no ability to challenge Defendant
WMATA’s rate reduction under the Prime Contract undercuts its assertion of privity with Defendant WMATA.
14
The plaintiff also argues that “pay if paid” clauses are generally disfavored on public policy grounds, relying on
authority from other states and districts. Pl.’s LTK Opp’n at 11–12. This argument is unavailing for at least two
reasons. First, the plaintiff has raised a breach of contract action, not a declaration that the Subcontract is void and
that the defendants owe the plaintiff regardless of the contractual terms. Second, contrary to the law from other
jurisdictions, “pay if paid” contracts are enforced in this District and in Maryland, to which this District looks for
guidance on issues of common law. See Urban Masonry Corp. v. N&N Contractors, Inc., 676 A.2d 26, 36 (D.C.
1996) (enforcing “pay if paid” clause); Gilbane Bldg. Co. v. Brisk Waterproofing Co., Inc., 585 A.2d 248, 252 (Md.
Ct. Spec. App. 1991) (enforcing “pay when paid” clause); see also Napoleon v. Heard, 455 A.2d 901, 903 (D.C.
1983) (noting that Maryland is “the source of the District’s common law and an especially persuasive authority
when the District’s common law is silent”). Thus, even if other jurisdictions disfavor “pay when paid” clauses, such
clauses are not disfavored in this jurisdiction and the plaintiff has offered no case law stating otherwise.
20
District of Columbia law “recognizes unjust enrichment as a species of quasi contract that
imposes ‘in the absence of an actual contract,’ ‘a duty . . . upon one party to requite another in
order to avoid the former’s unjust enrichment[,] . . . to permit recovery by contractual remedy in
cases where, in fact, there is no contract.” Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 279–80
(D.C. Cir. 2009) (alterations in original and citations omitted). Thus, “[u]nderscoring the nature
of promissory estoppel and unjust enrichment as remedies for failed agreements, courts tend not
to allow either action to proceed in the presence of an actual contract between the parties.” Id. at
280.
Here, this is no dispute that there is a valid contract between Defendant LTK and the
plaintiff. See Compl. ¶ 8 (“[The plaintiff] executed a subcontract under the Contract with
[Defendant] LTK on or about January 5, 2012.”); Def. LTK’s Reply at 7 (“LTK is not arguing
that there was no contract between LTK and [the plaintiff], simply that it did not breach that
contract.”). Since an express contract exists between the parties, that contract provides the only
remedy for breach and quantum meruit is unavailable, even if pleaded in the alternative. See
Plesha, 725 F. Supp. 2d at 112 (dismissing alternatively pleaded quantum meruit claim where
express contract undisputedly existed). Accordingly, Count II against Defendant LTK is
dismissed with prejudice, since it is undisputed that there is an express contract between the
parties, making any amended complaint futile.
3. Account Stated
The plaintiff’s cause of action for account stated also must fail. “An account stated is ‘a
promise by a debtor to pay a stated sum of money which the parties had agreed upon as the
amount due.’” Eagle Maint. Servs., Inc. v. D.C. Contract Appeals Bd., 893 A.2d 569, 582 (D.C.
2006) (quoting Ally & Gargano, Inc. v. Comprehensive Accounting Corp., 615 F. Supp. 426,
21
428–29 (S.D.N.Y. 1985)). Such a claim “presupposes an absolute acknowledgement or
admission of a certain sum due, or an adjustment of accounts between the parties, the striking of
a balance, and an assent, express or implied, to the correctness of the balance.” Id. at 582–83
(quoting Falcone v. Paradiso, 54 F.2d 715, 717 (D.C. Cir. 1931)). The plaintiff has merely
pleaded that it sent Defendant LTK “invoices for services rendered” and made repeated attempts
“to collect the amount past due on the invoices.” Compl. ¶¶ 27–28. Under District of Columbia
law, “the mere sending of the bills . . . imported no promise of payment on the part of” the party
to whom the bills were sent. First Nat’l Realty Corp. v. Impact Advertising, Inc., 206 A.2d 579,
580 (D.C. 1965); see also Chinn v. Lewin, 16 F.2d 512, 514–15 (D.C. Cir. 1926) (finding
“[t]here is no way in which” the mere “submission of a bill for professional services, over which
there had been a sharp controversy as to the proper amount, followed by three written demands
for payment, all within less than three months . . . can be held to constitute acquiescence on the
part of the defendant, or be distorted into an account stated”).
In the instant matter, the plaintiff has failed to plead that Defendant LTK agreed, either
expressly or impliedly, that it owed the plaintiff a sum certain. See Compl. ¶¶ 25–29. On the
contrary, Defendant LTK states that it “is not indebted to [the plaintiff]” under the terms of the
subcontract. Def. LTK’s Mem. at 6. Consequently, the pleading fails on its face since it does
not plead the presence of an express or implied agreement as to the amount due, and amending
the pleading would be futile since Defendant LTK does, in fact, dispute the amount due.
Accordingly, Count III against Defendant LTK is dismissed.
IV. CONCLUSION
For the foregoing reasons, the plaintiff has failed to plead a cause of action against either
Defendant WMATA or LTK, and any amended pleading would be futile since such a pleading
22
would not survive a motion to dismiss. The defendants’ motions to dismiss for failure to state a
claim are granted and this action is dismissed with prejudice.
An appropriate Order accompanies this Memorandum Opinion.
Date: March 25, 2014 Digitally signed by Beryl A. Howell
DN: cn=Beryl A. Howell, o=District Court for the District
of Columbia, ou=District Court Judge,
[email protected], c=US
Date: 2014.03.25 17:02:39 -04'00'
__________________________
BERYL A. HOWELL
United States District Judge
23
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932 N.E.2d 1031 (2010)
236 Ill.2d 556
McAFOOS
v.
LEWIS & CLARK COMMUNITY COLLEGE DIST. NO. 536.
No. 109982.
Supreme Court of Illinois.
May 1, 2010.
Disposition of Petition for Leave to Appeal[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.
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47 F.3d 1167
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Loretta BARNETT and Harl Barnett, Plaintiffs-Appellants,v.BONNIE BELLE, INC. and the M/V BONNIE BELLE, Defendants-Appellees.
No. 93-6622.
United States Court of Appeals, Sixth Circuit.
Jan. 5, 1995.
On Appeal from the United States District Court for the Western District of Kentucky, No. 90-06808; C. Cleveland, Gambill, United States Magistrate Judge.
DISMISSED.
Before: WELLFORD, RYAN and BATCHELDER, Circuit Judges.
PER CURIAM.
1
Plaintiff Loretta Barnett fell and injured herself while cleaning on an excursion vessel owned by the defendants while the vessel was between cruises. The magistrate granted the defendants' motion for summary judgment on the plaintiffs' maritime claims, holding that Loretta Barnett was not a "seaman" as a matter of law and therefore was not eligible for the protections of the Jones Act, 46 U.S.C.A. app. Sec. 688 (West Supp.1994). We dismiss the plaintiffs' appeal for lack of jurisdiction.
2
Albeit unartfully pled, the complaint makes clear that the plaintiffs not only state maritime claims under the Jones Act and the doctrine of unseaworthiness, but also raise a claim of general negligence on the part of the defendants.1 Furthermore, although the magistrate's order states that the judgment is "a final judgment" with "no just cause for delay," that language alone is not sufficient to comply with Fed.R.Civ.P. 54(b). Under Rule 54(b), a court may enter a final judgment for fewer than all of the claims in a case "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." To certify an order under Rule 54(b), a court must "do more than just recite the 54(b) formula of 'no just reason for delay' " and provide a reasoned explanation. Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 61 (6th Cir.1986).
3
Because the magistrate's order does not dispose of all of the claims in this case and is not sufficient for Rule 54(b) purposes, we lack jurisdiction to hear this appeal. For the foregoing reasons, we DISMISS the plaintiffs' appeal.
1
Indeed, as the magistrate noted, a genuine issue of material fact remained on an issue vital to the negligence claim: Whether Loretta Barnett's relationship with the defendants was that of an independent contractor or an employee
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652 So.2d 435 (1995)
Martha Marie PLEAS, Appellant,
v.
Jerry E. PLEAS, Appellee.
No. 94-472.
District Court of Appeal of Florida, First District.
March 17, 1995.
Bill A. Corbin, Blountstown, for appellant.
Bonnie K. Roberts, Bonifay, for appellee.
PER CURIAM.
In this appeal from a final order of dissolution of marriage, appellant/wife challenges the trial court's distribution of marital assets and liabilities, denial of alimony, and denial of her attorney's fees. We conclude the trial court erred in its analysis of appellant's interest in appellee's non-marital home and reverse and remand for further consideration.
The parties were 83 (appellant) and 76 (appellee) years of age at the time of the dissolution. They had been married for approximately six years. Appellee filed the initial petition for dissolution. He also obtained an order requiring appellant to leave the home they had lived in during the marriage. Appellant first lived with a relative and then moved into a rental home.
When the parties married, appellee owned a house and acreage. Appellant moved into appellee's house and the parties began renovating it. According to appellant, they paid for the renovations out of their respective Social Security and other monthly incomes, which the testimony indicates were about equal. Appellee agreed that they used whatever funds were available for the renovations, and that this included appellant's income. Appellant testified that they made extensive improvements to the house, beginning on the inside, including painting and recarpeting, replacing rotten boards, adding a "Florida" room and carport, reflooring porches, reroofing part of the house, reconstructing the kitchen, and landscaping. She also testified they tore down an old barn and built a new one.
Appellant presented documentation of some $16,000 in expenditures on the home, and testified they spent more than that, although on cross-examination, she admitted not all of the invoices she produced pertained to the renovations; some were for furniture and minor maintenance and repairs. She testified they did not borrow any funds to make the renovations. Before the marriage, appellant lived in a mobile home. After the *436 marriage, she rented and then sold the mobile home after the parties made some $1200 in repairs to that home. She testified that appellee promised her she could live in his home as long as she lived.
The trial court found that appellant testified to more expenditures than she had income, therefore her evidence was inconclusive; that she failed to introduce evidence to support the conclusion that her money was used to make the improvements; that she failed to introduce evidence to support the conclusion that the fair market value of the property increased during the marriage as a result of the improvements; that she attempted to establish her claim based on ordinary expenditures such as routine maintenance, furniture purchases, and ordinary living expenses; and that she failed to establish a basis for treating the home as marital property or entitlement to special equity.
The trial court did not err in determining the home was a non-marital asset, or that appellant was not entitled to a "special equity" in that asset. "A special equity is a vested property interest brought into the marriage or acquired during the marriage because of a contribution of services or funds over and above normal marital duties." Dyson v. Dyson, 597 So.2d 320, 324 (Fla. 1st DCA 1992). However, the trial court applied an inappropriate analysis to appellant's claim by focusing solely on whether the home was a marital asset and on whether appellant had shown entitlement to a special equity in it. "The enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage or from the contribution or expenditure of marital funds constitute marital assets of the parties." Saare v. Saare, 610 So.2d 628, 629 (Fla. 1st DCA 1992).
[W]here a party has separately owned property on which marital funds or labor were expended during the marriage, the value of the property at the time that it was acquired, together with any reasonable proration of the appreciated value that the party may show is attributable to causes other than the parties' contribution of marital funds and labor, is shielded from equitable distribution as a special equity. To the extent, however, that the value of that property was enhanced by marital funds or labor, that enhanced value should be included as a marital asset in the equitable distribution plan. (emphasis supplied)
Dyson v. Dyson, 597 So.2d at 324.
On remand, the focus should be on whether marital funds or labor were expended on the non-marital asset, resulting in an appreciation in value of the marital asset. It is irrelevant whether or to what extent appellant's personal funds can be traced to the improvements, because "each spouse's income is deemed marital funds," Stevens v. Stevens, 651 So.2d 1306, (Fla. 1st DCA 1995). As in Young v. Young, 606 So.2d 1267, 1270 (Fla. 1st DCA 1992), the trial court "should revisit the issue of whether the wife is entitled to a share of the appreciated value of the marital residence if she is able to establish its enhanced value." The finding that appellant attempted to establish her claim with evidence as to ordinary expenditures only, such as routine maintenance, is not supported by competent substantial evidence, as indicated by the above summary of appellant's testimony as to the renovations to appellee's home.
Appellant also challenges the trial court's ruling on marital liabilities. The major liability was appellant's outstanding medical bill in the amount of $1874. The court ruled that each party should be responsible for their own medical bills, although appellee had no significant outstanding bills, and the record indicates his medical expenses are largely covered by insurance. In reconsidering the equitable distribution plan, the trial court should reconsider its decision on this marital liability and make adequate findings in accordance with section 61.075, including identification and valuation, to ensure equitable distribution of all marital assets and liabilities. Finally, since the denial of alimony and attorney's fees is not explained in the order, on remand the court should make findings supporting its rulings on these claims.[1]
*437 REVERSED and REMANDED for further proceedings consistent with this opinion.
ERVIN, JOANOS and WOLF, JJ., concur.
NOTES
[1] In the final order, the court found that "wife removed furniture and furnishings from husband's home upon separation, and it is equitable to allow both parties to retain that which is in their respective possession." This finding is not responsive to the claims nor does it reflect the testimony in the record. Appellant requested a number of items of personal property purchased during the marriage, in particular, a freezer and a washing machine, and appellee expressed his willingness for her to have these items. Appellee also indicated there were items belonging to appellant which she had brought to the marriage which were still at his house. The record indicates that at one point during the dissolution proceedings, law enforcement officials prevented appellant from removing items of personal property from the home. Under these circumstances, the trial court should specify in the final order whether appellant may take these items from appellee's home, adjusting the equitable distribution plan as necessary.
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459 U.S. 1183
103 S.Ct. 834
74 L.Ed.2d 1027
Robert BAKER, petitioner,v.MISSOURI
No. 82-5632
Supreme Court of the United States
January 24, 1983
On petition for writ of certiorari to the Supreme Court of Missouri.
The petition for writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence in this case.
Justice MARSHALL, dissenting from denial of certiorari.
1
I continue to adhere to my view that the death penalty is unconstitutional in all circumstances, and would grant certiorari and vacate petitioner's death sentence on this basis alone. However, even if I accepted the prevailing view that the death penalty can constitutionally be imposed under certain circumstances, I would grant certiorari and vacate the death sentence because the Missouri Supreme Court improperly upheld the sentence on the basis of an aggravating circumstance that had never been considered by the sentencer.
2
* Petitioner Robert Baker was convicted of capital murder in the Circuit Court of the City of St. Louis. The victim, a police officer assigned as an undercover agent, was dressed in street clothes at the time of the shooting. When his body was discovered in the front seat of his unmarked police car, his police badge was in his wallet.
3
At the sentencing stage, the jury was instructed that it may impose the death penalty if it found that the murder "was committed against a peace officer while engaged in the performance of his official duty."1 The jury was not instructed that it also had to find that petitioner knew or should have known that the victim was a police officer. The jury imposed the sentence of death solely on the basis of this aggravating circumstance.2
4
The Missouri Supreme Court affirmed the conviction and the death sentence, with two judges dissenting. 636 S.W. 2d 902 (1982). The majority held that based on its review of the record "[t]he evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant knew [the victim] was a police officer. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." 636 S.W.2d, at 907. It therefore "decline[d] to address the inscrutable question of mens rea." 636 S.W.2d 902, 907 (1982), citing Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
II
5
The Missouri Supreme Court improperly affirmed the death sentence on a ground neither presented to nor found by the sentencing jury. The jury instruction authorized the imposition of the death sentence on the basis of a bare finding that the victim was a police officer on duty. The jury clearly did not base its imposition of the death sentence on a finding that petitioner knew or should have known the identity of his victim. In affirming the death sentence on the ground that there was sufficient evidence for a rational finder to find that petitioner had the requisite knowledge, the Missouri Supreme Court improperly relied on Jackson v. Virginia, which established a test for reviewing findings actually made, to "affirm" a finding that was not made.3
6
"Fundamental principles of procedural fairness" prohibit a reviewing court from affirming a death sentence on the basis of an aggravating circumstance not properly found by the sentencing jury. Presnell v. Georgia, 439 U.S. 14, 16, 99 S.Ct. 235, 236, 58 L.Ed.2d 207 (1978).4 As Mr. Justice Black stated for a unanimous Court in Cole v. Arkansas, 333 U.S. 196, 202, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), "[t]o conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court." We have stated that this principle applies "with no less force at the penalty phase of a trial in a capital case than [it does] in the guilt-determining phase of any criminal trial." Presnell v. Georgia, supra, 439 U.S. at 16, 99 S.Ct., at 236.
7
Moreover, the death sentence in this case may not be upheld on the ground that it was properly imposed in the absence of a finding that petitioner knew or should have known the identity of his victim. If the Missouri statute does not require knowledge as an element of the aggravating circumstance charged in this case, its application in this case would violate the Constitution.
8
Petitioner received the death sentence solely because the victim of his crime was by chance an undercover police officer on duty. If his victim had been a private citizen as his appearance indicated,5 the death sentence could not have been imposed under Missouri law. Nor can the death sentence be imposed on other persons who have committed or may commit similar acts, and whose conduct, and mens rea are in all respects identical, but whose victims are private citizens. Petitioner has been singled out to receive the death sentence because of the "entirely fortuitous circumstance that the victim, who was dressed in civilian clothes and who to all appearances was a private citizen, turned out to be, unknown to [him], a police officer." 636 S.W.2d, at 913 (Seiler, J., dissenting).
9
We have made clear that a State may not authorize the imposition of a death sentence on the basis of an arbitrary factor. While there is undoubtedly a difference between petitioner's case and cases in which the victims are private citizens, not every difference can justify a state's decision to execute a defendant. Instead, a constitutionally acceptable death penalty scheme must provide a "principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (plurality) (emphasis added). See also Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.) ("similar results . . . in similar cases"); Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (WHITE, J., concurring) ("meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not") (emphasis added).
10
In my view the imposition of the death sentence based solely on the identity of the victim, unknown to the accused, would result in the ultimate punishment of death being meted out in an unprincipled fashion. The identity of the victim, standing alone, has nothing to do with an accused's blameworthiness.6 In this case the State was not required to prove a single fact about petitioner indicating that he was any more deserving of a death sentence than any defendant convicted of murder. Nor is the goal of deterrence rationally furthered, since the enhanced penalty for the killing of a police officer could not deter an individual who is ignorant of the identity of his victim.7
11
For the foregoing reasons, I would grant certiorari and vacate the death sentence in this case.
1
The statutory aggravating circumstance at issue in this case was as follows: "The capital murder was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duty." Mo.Rev.Stat. § 565.012.2(8)
2
The existence of at least one statutory aggravating circumstance is necessary to authorize the imposition of the death sentence. § 565.012.5.
3
In so doing, the Missouri Supreme Court completely usurped the sentencing jury's function. Moreover, the reviewing court did not itself find that petitioner had the requisite knowledge, but simply held that if a jury had found that petitioner knew or should have known the identity of the victim, that hypothetical finding would be supported by sufficient evidence. As a result, petitioner's death sentence was imposed without an actual finding by any tribunal, least of all the jury that sentenced him, that petitioner knew or should have known that the victim was a police officer.
4
Missouri law equally forbids the imposition of a death sentence based on aggravating circumstances that were not found by the jury. The Missouri Supreme Court is authorized to review "[w]hether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 565.012." § 565.014.3(2) (emphasis added). Where the jury has not properly found the existence of a statutory aggravating circumstance, nothing in § 565.014 authorizes the Supreme Court to determine de novo whether such a finding should be or could have been made.
5
It was "a disputed issue of fact" whether petitioner knew the identity of his victim. 636 S.W.2d, at 911 (Seiler, J., dissenting). Petitioner testified at the guilt-stage of the trial that he did not know that the victim was a police officer, and "[e]ven in his first taped confession (the second was suppressed because of the beatings), there is nothing to indicate that defendant knew that the victim was a police officer on duty." Ibid (emphasis added).
6
Cf. Enmund v. Florida, --- U.S. ----, ----, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140 (1982) (death penalty must be imposed on the basis of "personal responsibility and moral guilt").
7
This view is fully consistent with our decision in Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977) (per curiam ). In striking down a statute which imposed a mandatory death sentence for the killing of a police officer, we acknowledged in Roberts that society has a "special interest in affording protection to these public servants who regularly must risk their lives in order to guard the safety of other persons and property." Id., at 636, 97 S.Ct., at 1995 (footnote omitted). Given the assumption, which I do not share, that the death penalty is constitutional under certain conditions, this interest may justify the State in treating the fact that the defendant knew his victim was a police officer as an aggravating circumstance in order to deter such killings, and to give effect to a State's judgment that the intentional killing of police officers is especially heinous. Yet where the accused had no knowledge that his victim was a police officer, he was not "forewarned," id., at 647, 97 S.Ct., at 2000 (REHNQUIST, J., dissenting), and therefore could not have been deterred by the possibility of an enhanced penalty for the killing of a police officer. Moreover, it is irrational to treat as equally reprehensible the premeditated murder of a police officer, and the murder of someone who, unbeknownst to the accused, turns out to have been a police officer. It is similarly irrational to treat differently two murderers simply because in one case the victim, unknown to the perpetrator, was a police officer. Although several members of the Court dissented in Roberts v. Louisiana and would have upheld Louisiana's mandatory death penalty statute, the Louisiana statute required that the accused have the "specific intent" to kill or seriously injure a police officer. It was in this context that the dissenting opinions expressed support for a mandatory death penalty when the killing of a peace officer was "intentional", id., at 642, 97 S.Ct., at 1998 (BLACKMUN, J., dissenting); id., at 644, 648, 97 S.Ct., at 1999, 2001 (REHNQUIST, J., dissenting), or "deliberat[e]," id., at 646, 647, 650, 97 S.Ct., at 2000, 2001, 2002; or "premeditated," id., at 644, 649, 97 S.Ct., at 1999, 2001.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1728
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Russell D. Fairchild, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 12, 1999
Filed: January 19, 1999
___________
Before BOWMAN, Chief Judge, MURPHY, Circuit Judge, and ALSOP,1 District
Judge.
___________
PER CURIAM.
Russell D. Fairchild pleaded guilty to a federal methamphetamine charge,
preserving for appeal his Fourth Amendment argument that the District Court2 erred
by denying his motion to suppress.
1
The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable Fernando J. Gaitan, United States District Judge for the Western
District of Missouri.
Having carefully reviewed Fairchild’s appeal, we conclude that his motion to
suppress was properly denied. Accordingly, Fairchild’s conviction is affirmed. See
8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-
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