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[Cite as In re T.J.B., 2014-Ohio-2028.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO IN RE: T.J.B. : APPEAL NO. C-130725 TRIAL NO. F13-444 : : O P I N I O N. Appeal From: Hamilton County Juvenile Court Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: May 14, 2014 Katz, Greenberger, & Norton, Scott Kravetz and Christina Yager for Appellant birth mother, Voorhees & Levy LLC and Michael R. Voorhees for Appellee Private Adoption Services, Inc. Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS F ISCHER , Judge. {¶1} Appellant birth mother appeals the judgment of the Hamilton County Juvenile Court dismissing her petition to revoke her permanent surrender of her minor son T.J.B. to appellee Private Adoption Services (“PAS”), a private child-placing agency. Because we conclude that the juvenile court lacked subject-matter jurisdiction to entertain mother’s petition, we affirm its judgment. Mother’s Permanent Surrender {¶2} Mother gave birth to T.J.B., also known as T.J.R., on June 8, 2012. On June 11, 2012, she executed a permanent surrender of the child for the sole purpose of obtaining the adoption of the child. Mother’s execution of the permanent surrender terminated her parental rights and resulted in PAS receiving permanent custody of T.J.B. On June 12, 2012, PAS sent notice and copies of mother’s permanent surrender to the Hamilton County Juvenile Court, which were journalized on June 18, 2012. {¶3} On June 14, 2012, PAS placed T.J.B. with prospective adoptive parents in California, following approval through the Interstate Compact for the Placement of Children. In September 2012, the prospective adoptive parents filed a petition to adopt T.J.B. in a California court. In February 2013, mother filed the current petition seeking to have the Hamilton County Juvenile Court revoke her consent to the adoption and void her permanent surrender of T.J.B. to PAS. {¶4} PAS opposed the petition, arguing the juvenile court lacked subject-matter jurisdiction over mother’s petition. A magistrate determined that because mother had signed the permanent surrender in Ohio and it had been processed through the Ohio judicial system to terminate her parental rights, the juvenile court had jurisdiction over mother’s petition challenging her surrender. PAS filed a timely objection, which the juvenile court sustained. It rejected the 2 OHIO FIRST DISTRICT COURT OF APPEALS magistrate’s decision and dismissed mother’s petition for lack of subject-matter jurisdiction. Standard of Review {¶5} In a single assignment of error, mother argues the juvenile court erred in dismissing her petition for lack of subject-matter jurisdiction. {¶6} Subject-matter jurisdiction denotes the power of a court to hear and decide a case upon its merits and to render an enforceable judgment in the action. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972), paragraph one of the syllabus. The lack of subject-matter jurisdiction is not waivable, and therefore, may be raised at any time. See Rosen v. Celebrezee, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 45, quoting Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11. {¶7} When ruling on a motion to dismiss for lack of subject-matter jurisdiction, the trial court is not confined to the allegations in the complaint, but may consider material pertinent to such inquiry without converting the motion into one for summary judgment. See Wilkerson v. Howell Contrs., Inc., 163 Ohio App.3d 38, 2005-Ohio-4418, 836 N.E.2d 29, ¶ 9 (1st Dist.), citing State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). A trial court’s dismissal for lack of subject-matter jurisdiction is a question of law that appellate courts review de novo. See Dikong v. Ohio Supports, Inc., 2013-Ohio-33, 985 N.E.2d 949, ¶ 9 (1st Dist.). Juvenile Court Lacked Subject-Matter Jurisdiction {¶8} “The juvenile court possesses only the jurisdiction that the General Assembly has expressly conferred upon it.” See In re Gibson, 61 Ohio St.3d 168, 172- 173, 573 N.E.2d 1074 (1991), citing Ohio Constitution, Article IV, Section 4(B). The 3 OHIO FIRST DISTRICT COURT OF APPEALS subject-matter jurisdiction of the juvenile court is created and defined in R.C. 2151.23. See id; see also Rowell v. Smith, 133 Ohio St.3d 288, 2012-Ohio-4313, 978 N.E.2d 146, ¶ 13. Mother argues that the juvenile court has jurisdiction to entertain her petition based upon R.C. 2151.23(A)(2), which provides that the juvenile court has exclusive original jurisdiction “[t]o determine the custody of any child not a ward of another court of this state.” {¶9} Mother’s argument, however, ignores R.C. 2151.23(A)(9), which specifically applies to permanent-custody agreements under R.C. 5103.15. R.C. 2151.23(A)(9) provides that “the juvenile court has exclusive original jurisdiction under the Revised Code * * * [t]o hear and determine requests for the extension of temporary custody agreements, and requests for approval of permanent custody agreements, that are filed pursuant to section 5103.15 of the Revised Code.” (Emphasis added.) {¶10} R.C. 5103.15(B)(1) provides that “the parents * * * of a child, may with court approval, surrender the child into the permanent custody of a public children services agency or private child-placing agency to be cared for by the agency or placed by it in a family home.” R.C. 5103.15(B)(2), provides, however, that the parents of a child less than six months of age may enter into an agreement with a private child placing agency surrendering the child into the permanent custody of the agency without juvenile court approval if the agreement is executed solely for the purpose of obtaining the adoption of the child. The agency shall, not later than two business days after entering into the agreement, notify the juvenile court. The court shall journalize the notices it receives under division (B)(2) of this section. 4 OHIO FIRST DISTRICT COURT OF APPEALS {¶11} Here, mother elected to surrender her three-day-old son to the permanent custody of PAS, a private child-placing agency, solely for the purpose of obtaining the adoption of the child. Thus, under R.C. 5103.15(B)(2), juvenile court approval was not required to effect the permanent surrender of her son. Given the language in R.C. 2151.23(A)(9), which only references the jurisdiction of the juvenile court in conjunction with “requests for approval of permanent custody agreements, that are filed pursuant to section 5103.15 of the Revised Code,” we cannot say that the juvenile court erred in concluding that it lacked jurisdiction to entertain mother’s petition, which sought to “revoke” the permanent surrender of her child. {¶12} The Ninth Appellate District has reached the same conclusion in a factually similar case. In In re E.B., 9th Dist. Summit No. 23850, 2008-Ohio-784, the birth mother had filed in the Summit County Juvenile Court a motion for relief from judgment to set aside her permanent surrender. Id. at ¶ 3. An adoption petition had already been filed and was pending in the probate court when the birth mother filed her motion in the juvenile court. Id. at ¶ 6. The Summit County Juvenile Court dismissed the birth mother’s motion for lack of jurisdiction and the Ninth Appellate District affirmed. Id. at ¶ 7-8. {¶13} The Ninth District held that because the birth mother had elected to surrender her five-month-old child to a private child-placing agency solely for the purpose of obtaining the adoption of the child, the juvenile court had no obligation under the plain language of R.C. 5103.15(B)(2) to take any action in regard to the surrender agreement. Id. at ¶ 19. Thus, the Ninth Appellate District concluded that R.C. 5103.15(B)(2) when strictly construed did not recognize the right of withdrawal of consent by a parent of a child less than six months old where permanent surrender had been made to a private agency solely for the purpose of adoption. Id. at ¶ 20. 5 OHIO FIRST DISTRICT COURT OF APPEALS Because juvenile court approval was not required, there was no jurisdiction for the court to exercise. Id. at ¶ 21-22. {¶14} Similarly, here the juvenile court’s administrative function of journalizing the permanent surrender under R.C. 5103.15(B)(2) did not invoke its jurisdiction to approve or disapprove the grant of permanent custody to PAS. Thus, any arguments mother may have relating to the validity of her permanent surrender, which would have consequences for any subsequent adoption proceeding, would not lie within the juvenile court’s jurisdiction. {¶15} Given that mother has challenged on appeal only the subject- matter jurisdiction of the juvenile court to entertain her petition, and PAS has not cross-appealed from the juvenile court’s statement that jurisdiction over her petition lies with the Hamilton County Probate Court, we decline mother’s and PAS’s invitation to determine whether the probate court would have jurisdiction to entertain mother’s petition or whether jurisdiction resides with the California court that is presiding over the adoption proceedings. We, therefore, overrule mother’s sole assignment of error and affirm the judgment of the juvenile court. Judgment affirmed. CUNNINGHAM, P.J, and HILDEBRANDT, J., concur. Please note: The court has recorded its own entry this date. 6	{ "pile_set_name": "FreeLaw" }
387 So.2d 906 (1980) Brad Maurice BRADFORD v. STATE. 6 Div. 25. Court of Criminal Appeals of Alabama. May 6, 1980. Rehearing Denied June 17, 1980. 907 Richard S. Jaffe of Walker & Jaffe, Birmingham, for appellant. Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee. LEIGH M. CLARK, Retired Circuit Judge. A jury found appellant guilty of an assault with intent to murder Jerry Wyant. The court fixed his punishment at fifteen years imprisonment and sentenced him accordingly. As no contention is made on appeal as to the sufficiency of the evidence to support the verdict, no lengthy discussion of the evidence is necessary. A large number of witnesses testified in the case, but the gist of the evidence as to the guilt of defendant is to be found in the testimony of the alleged victim and the testimony of defendant himself. According to the testimony of the alleged victim, he had gone to a business meeting at the Holiday Inn in Monticello, Indiana, on the night of September 12, 1978, and as he was returning from the meeting to the parking lot of the hotel at approximately 10:00 or 10:15 that night and was in the process of getting into his automobile, a man came up to him with a shotgun in his hand and told him to get in the back seat with him. At that time another male and a female entered the front seat of the automobile; the male, undisputably identified as the appellant herein, taking the driver's seat. The victim described each of the other three as "black." The automobile, with its four occupants and defendant as its driver, proceeded south on Interstate 65, pulled off the road at an exit and stopped. The two males placed the victim in the trunk of the automobile, after throwing some things out of the trunk. He was left in the trunk with his hands tied until the next morning. He could hear the car radio from the trunk and learned that the end of the trip was in Birmingham, Alabama. The two persons in the automobile in addition to appellant and Wyant were Walter Gray and Geraldine Harris. The three lived at or near the Kingston Housing Project in Birmingham. The other undisputed evidence disclosed that defendant was seventeen years of age at the time, that Gray was about twenty-eight, and that the female was evidently older than either of the two males, as she was the mother of a girl friend of the defendant. The victim further testified that some time after the automobile arrived in Birmingham, the trunk was opened and he saw both men. He was questioned by them as to the use of his credit cards. He said "... they told me to keep quiet or they would kill me." With the victim still in the trunk, the two males drove the automobile around in the Birmingham area for the next three or four hours. About 12:30 P. M. that day, the automobile was stopped again and he was taken out of the trunk. His feet were tied together, his hands were tied behind his back, and he was gagged. He saw the shotgun again at that time; it was a sawed-off shotgun. Gray, not the defendant, had the shotgun. He was hit in the shoulder by one of the men; one of them also hit him twice with an unidentified object; then one of them fired the shot, "the shotgun blast." He stated that the two men then proceeded to drag him away on his stomach, to cover him up with trash, and leave. Soon after they left, he untied himself and went to the highway, 908 where a deputy sheriff stopped within a few minutes. The witness was taken to a hospital, where he remained for fifteen days and was treated for the injury from the shot of the shotgun shell that penetrated the shoulder area of his back. According to the testimony of defendant, Gray and Geraldine Harris made arrangements with defendant to have him go with them to Indiana so that defendant could "help them drive Geraldine to visit her father." They had some accidents on the way up but eventually arrived at the Holiday Inn in Monticello, Indiana, about 8:30 or 9:00 P. M. They were unable to get a room at the hotel because they didn't have money to pay in advance. They returned to the parking lot. They saw a state trooper nearby, and Gray told them to hide. According to his further testimony: "A. Geraldine asked him why should we hide and he told her that they were looking for us for the credit card that he had. "Q. What happened after you were under the car and Geraldine was under the car and Gray, you don't know where he was, what happened next? "A. About 30 seconds later I heard Gray tell someone to shut up and get in the car. So I looked from under the car and I saw him with a shotgun on a man. "Q. Prior to this had you ever seen that shotgun? "A. No, sir. "Q. Do you have any idea where Gray got the shotgun from? "A. No, sir. "Q. What happened next? "A. I peeked my head from under the car and Gray told me to get from under the car and told Geraldine to come here. So the man, he had already made him get into the car. "Q. Could you tell whether or not the man's car doors were open or not? "A. Yes, sir. It was closed at the time I got from under the car. "Q. What happened next? "A. So he told us to come on and she said I don't want to go and so I said, I'm not going either. So he waved the gun around in our direction and he told us, he said you'd better come. "Q. Did he point it at you or just wave it? "A. He waved it." Defendant's further testimony substantially corroborated the testimony of the victim as to what happened thereafter, except that defendant was positive that during the entire trip to Birmingham in the victim's automobile defendant was acting in fear of Gray, that he took no part in the matter of shooting Wyant, or otherwise assaulting him. He denied that he threatened Wyant. Diligent counsel for appellant, the same counsel appointed to represent him in the trial court, argues comprehensively that defendant was denied due process in the trial court and deprived of other constitutional rights in being tried without the attendance in court of Walter Gray and Geraldine Harris. He supports with ample authority that an indigent defendant has the same right as a solvent defendant to "a fair and impartial trial." He says that the court erroneously refused "to aid the defense in procuring" material witnesses, particularly Walter Gray who at the time of the trial in this case was in custody of federal authorities out of the state of Alabama. He says also that the trial court erroneously overruled defendant's motion for a continuance. On the day the trial of the case commenced and after the jury had been selected, defendant's counsel made known to the court that he had subpoenaed two witnesses, whom he referred to as "two co-defendants" who were not present. According to the record: "THE COURT: Are these two people in the penitentiary system of Alabama? "MR. JOHNSON: No, sir. Geraldine Harris is in the Federal Penitentiary in West Virginia. She's been convicted of kidnapping in this case. Gray, I don't know where he is. I know the Feds took him up there to try him and the jail tells me he hasn't been returned from federal custody. He's still got four cases pending with us. 909 "THE COURT: Let me say this on the record. I was in fact wrong in allowing the defense to challenge people over sixty-five years of age and I'm sorry that I did that . . . "MR. JAFFE: I wouldn't have done it if I didn't think that was the law. I would like to make the same apology. Pertaining to my last objection we would like to know that this is on the record. I understand that the court is in no position .. "THE COURT: I didn't know about it until right now. Have they indicated a willingness to testify in this case? "MR. JAFFE: I haven't been able to speak to them. I don't even know if one of them has a pending case in the county or not. "MR. JOHNSON: Walter Gray has four cases pending. Geraldine Harris does not have any. "MR. JAFFE: One of them out of this transaction? "MR. JOHNSON: One of them out of this transaction. "THE COURT: Where is he now? "MR. JOHNSON: Judge, according to the jail the Federal Government borrowed him to try him for kidnapping in Indiana. They did not charge this Defendant because of his age. They charged Geraldine Harris and Walter Gray with kidnapping. I know she's been tried and convicted. I don't know if he has been or not. I know he has not been returned by the Feds. "MR. JAFFE: I wrote the prosecutor in Indiana a letter requesting the whereabouts of the witness. He responded to me and said that Walter Gray should be in Alabama waiting State charges. His presence in the Northern District of Indiana was secured by writ of habeas corpus. Of course, this is just what his office says. He is an assistant United States attorney in Indiana. Could I enter that letter? "THE COURT: Yes. "[Thereupon the letter was received in evidence] "MR. JAFFE: We are asking for the Rule." On the morning of the trial and before the jurors from whom a jury to try the case was to be selected were brought to the courtroom, the following occurred: "MR. JAFFE: Yesterday I mentioned to you just as we finished the Motions around 12:30 or so that we were moving for a continuance and that the Defendant wasn't here and you said we needed this on the record and you allowed me leave to do so today, based of course on the previous discussions that we have had concerning discovery and the inability to get ready for trial. "THE COURT: Overruled. "MR. JAFFE: Thank you, Judge." The record and the transcript of the proceedings show that on the day before the trial commenced there was a hearing of three pretrial motions of defendant, including a motion to compel disclosure. The motion contained nine separate categories of matters to be produced, and in the tenth part defendant prayed "for any other relief to which he may be entitled." The court made definite rulings as to each of the nine specific groups. It affirmatively appears that defendant had no basis for any complaint as to any of said rulings, that he had been furnished or would be furnished with all matters called for by the motion to produce that were insisted upon by defendant on the hearing. We do not find in the transcript of the proceedings any definite invocation by defendant of a ruling by the trial court "to aid the defense in procuring" material witnesses in custody of federal authorities out of the state of Alabama. We find that the remark of counsel for defendant that appellant refers to as a motion for continuance made on the morning of the trial "based of course on the previous discussions that we have had concerning discovery and the inability to get ready for trial," was too nebulous to invoke a continuance by the trial court on the ground that either Walter Gray or Geraldine Harris was not in attendance. Furthermore, it is our opinion that if 910 in overruling defendant's motion, the trial court considered that the matter now raised on appeal was presented to it, its action in overruling the motion was not error. There was no semblance of any showing that the testimony of either of them would have been of benefit to defendant. There is nothing to indicate that either would have voluntarily testified, or that the refusal by either of them to testify on the ground of the self-incriminatory nature of the testimony would not have been upheld. Sergeant Paul Crouch, a deputy sheriff who arrested Walter Gray on September 20, 1978, in connection with the crime involved in the instant case, was called by the defendant as the first witness after the state had rested. After a few preliminary questions, counsel for defendant stated: "We would like the Court to allow the defense to cross examine this witness. It is obvious that he is not my witness. He was the chief investigator in this case and I can show hostility if you want me to." The court replied, "We will just play it by ear." After several pages of his testimony, the record shows: "Q. You led the investigation, didn't you? "A. Yes, sir. "Q. Do you recall when my office called you concerning this case? "MR. JOHNSON: Judge, I am going to object to that as to when his office called Sgt. Couch. "THE COURT: I don't know what you have reference to. "MR. JAFFE: As I cross examine the witness I am showing hostility ... "THE COURT: You can't cross examine your witness on a question of bias like that. "Q. Was Geraldine Harris arrested at the same time that Walter Gray was? "A. Arrested the same day, yes sir." Based on this quotation from the record, appellant argues that "the Court emphatically denied Appellant's request and proffer to cross-examine Sgt. Couch, to show hostility and to show bias." It appears that appellant confuses a right "to cross-examine" in an effort "to show bias" with one's right on direct examination of an unwilling or hostile witness to ask him leading questions. "We have discussed in a previous subsection that a party may not discredit his own witness by showing bias of a witness in favor of the party's opposition. It is proper, however, for the trial court to permit a party to elicit testimony from his own witness, indicating bias in favor of the opponent, where the avowed purpose of such testimony is to invoke the discretion of the court in allowing leading questions to the witness. It should be noted that the Alabama Rules of Civil Procedure make it a matter of right for a party to interrogate any unwilling or hostile witness by leading questions." Gamble, McElroy's Alabama Evidence, (1977), § 165.01(8). There is nothing in the action of the trial court shown above that offends the principle stated by Judge McElroy. Appellant asserts that failure of the District Court prior to any indictment to conduct a preliminary hearing on motion of defendant amounted to a failure to comply with the requisites of due process. It appears that before any indictment was returned there had been a setting of defendant's preliminary hearing on November 13, 1978, but in the meantime an indictment had been returned. Upon defendant's appearance, accompanied by his counsel, on November 13, 1978, the District Court announced that the defendant had already been indicted and for that reason would not be given a preliminary hearing. Within a few days, defendant filed in the Circuit Court a motion for a preliminary hearing or, in the alternative, to quash the indictment because his request for a preliminary hearing had been denied. This motion was continued by one of the judges of the Circuit Court, not the judge trying the case, to December 28, 1978. It was not presented again until the day before the trial, at which time it was denied by the judge trying the case. 911 A defendant is not entitled to a preliminary hearing as a matter of right after an indictment has been returned. Odom v. State, Ala.Cr.App., 356 So.2d 242, 246 (1978); Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976), cert. denied, Ala., 335 So.2d 678. Furthermore, a preliminary hearing is not necessary to satisfy the requisites of due process. Scaife v. State, Ala. Cr.App., 337 So.2d 146 (1976). Upon defendant's arrest, he was placed in "juvenile custody," where he was afterwards held to be incorrigible and transferred from the custody of the juvenile court to be treated otherwise than as a juvenile by the District Court and the Circuit Court. He applied for treatment as a Youthful Offender, but his application was denied. On the trial of the case, the State was allowed to prove over objection of defendant, that, while the officers were in the process of attempting to arrest the defendant in defendant's mother's house, defendant ran out the back door and that while defendant was in "family court" he escaped. Appellant says, as to the usual rule that the flight of an accused can be shown in evidence against him on the issue as to his guilt, there is an exception as to a juvenile accused while being proceeded against as a juvenile under the juvenile jurisdiction of courts. He relies upon Code of Alabama 1975, § 12-15-67: "Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment or consent decree, shall not be used prior to a determination of the petition's allegation in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction." The quoted statutory restriction was upheld and applied in Watts v. State, Ala.Cr.App., 361 So.2d 1200 (1978). We are cited to no authority and given no good reason why a particular statutory provision should be extended beyond its clear language and obvious purpose so as to preclude the application of the usual rule of the admissibility of evidence of the flight of an accused, as to which the strength or weakness of the evidence is dependent upon all the circumstances, including faculties of an accused normally affected by his age and the extent of his experience. After deliberation and upon the return of the jury with a verdict, the following occurred: "THE COURT: . . . Sir, has the jury reached a verdict? "FOREMAN: Yes, sir. "THE COURT: Is it unanimous? "FOREMAN: Yes, sir. "THE COURT: Please read it. "FOREMAN: We, the jury, find the defendant guilty of conspiracy to assault with intent to commit murder as charged in the indictment. "THE COURT: That word conspiracy, did you write that word in there? "FOREMAN: Yes, sir. "THE COURT: Of course, we have abolished, I charged you that a person who is guilty of conspiracy is guilty of the offense. The proper verdict form would be that you find him guilty without writing anything in it, as charged in the indictment. Is that your verdict? "FOREMAN: Yes, sir. "THE COURT: Do you find the defendant guilty of assault with intent to murder? "FOREMAN: Yes, sir. "THE COURT: As charged in the indictment? "FOREMAN: As charged in the indictment. "THE COURT: I am going to ask each and everyone of you if that is your true verdict form. "(Thereupon, the Court polled the jurors, asking each and every juror if that was his or her individual verdict, each juror answering in the affirmative that it was his or her individual verdict. The following proceedings were then had and done:) 912 "THE COURT: Does anyone disagree with that verdict of guilty of assault with intent to commit murder? "(Thereupon, the jurors were sent back into the Jury Room, after which the following proceedings were had and done:) "MR. JAFFE: We object to the form of the verdict. "(Thereupon, the defendant, counsel for defendant and counsel for the State stood before the bench, after which the following proceedings were then had and done:) "THE COURT: You have heard the verdict? "DEFENDANT: Yes, sir. "THE COURT: I will read it to you. It says we, the jury, find the defendant guilty of assault with intent to murder as charged in the indictment. In accordance with that jury verdict I will find you guilty of assault with intent to commit murder and I will pass the case until March 1, at 2:30 P. M." On March 1, 1979, at 2:30 P. M., just before the court fixed defendant's punishment and sentenced him, he was asked if he had anything to say, and he replied, "No, sir." The court then asked defendant's counsel if he had anything to say, and he stated: "Yes, sir. Very shortly, I believe that the indication on the jury verdict when they came back and wrote in a conspiracy-of course that means he is guilty under the indictment, but I think in any case that the jury believes for the most part that-the length of time that they were out, that Brad wasn't the one that shot him, and I believe that. And I would ask for the Court to consider that and his age. I mean, it's much less his part than Gray's." Thereafter the court said: "The jury did go out of their way, I think, and were correct to tell me that they didn't believe he pulled the trigger that shot the man. And although he has had trouble most of his life, given his parents all kinds of problems. Ordinarily, it is a 20 year case, and I am going to take into consideration the fact that-what the jury wrote in and give him a small break. "It is the judgment and sentence of the court that you be imprisoned in the penitentiary for a term of 15 years." Appellant cites a number of cases in which it was held that there was error in the court's changing the language of a jury's verdict. We do not deem it necessary to here discuss all of these cases. They are distinguishable from the instant case, in which it is clear that each and every juror agreed on a verdict that defendant was guilty of assault with intent to murder. We think it probably would have been better for the court to have sent them back to the jury room with definite instructions that the only appropriate verdicts they could render were as the court had previously charged them: "We the jury find the defendant guilty of an assault with intent to murder as charged in the indictment, we the jury find the defendant guilty of an assault and battery as charged in the indictment, or we the jury find the defendant not guilty." However, in the absence of any question as to what the jury found by its verdict, there was no error prejudicial to defendant in the way the matter was handled by the trial court. Furthermore, as noted above, not even defendant or defendant's counsel had any doubt as to what all the jurors agreed upon and stated by the verdict. The court had comprehensively and clearly instructed the jury as to the criminal responsibility of an accomplice, one who has aided or abetted another who actually commits the felony. The record shows that upon questioning by the jury, the word, "conspiracy," was used both by the jury and by the trial court as applicable to the law of the liability of one who is not actually the principal but aids and abets the principal. The insertion of the words, "conspiracy to," in the form of the verdict, which complied with the instructions to the jury, did not injure defendant. It proved to be a boon to him that resulted in his getting only three-fourths of a sentence that he would have otherwise received. This his counsel fully realized *913 and utilized to defendant's benefit in his argument to the court. Justice has been served by the incident, and appellant has no basis for a complaint. We find no error in the record prejudicial to the defendant. The judgment of the trial court should be affirmed. The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby AFFIRMED. All the Judges concur.	{ "pile_set_name": "FreeLaw" }
56 N.Y.2d 690 (1982) In the Matter of New York State Teachers' Retirement System, Respondent, v. Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, et al., Appellants. Court of Appeals of the State of New York. Decided May 6, 1982. David M. Garber, Corporation Counsel (Eleanor Theodore of counsel), for appellants. Harry L. Du Brin, Jr., and Karl E. Nisoff for respondent. Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER. On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (84 AD2d 912).	{ "pile_set_name": "FreeLaw" }
853 N.E.2d 811 (2006) Thomas MALONEY, Plaintiff-Appellee, v. STATE EMPLOYEE'S RETIREMENT SYSTEM OF ILLINOIS, Judges' Retirement System of Illinois, Robert V. Knox, Executive Secretary of the Judges' Retirement System of Illinois, The Board of Trustees of the Judges' Retirement System of Illinois, Lisa Madigan, Attorney General of Illinois, and Rudy J. Kink, Deputy Director, Judges' Retirement System, Defendants-Appellants. No. 1-05-3027. Appellate Court of Illinois, First District, Fifth Division. July 28, 2006. 812 State of Illinois, Attorney General, Chicago (Jan E. Hughes, of counsel), for Appellant. Collins & Bargione, Chicago (George B. Collins, James J. Lessmeister, Theresa M. Gronkiewicz, of counsel), for Appellee. Justice SHEILA M. O'BRIEN delivered the opinion of the court: Defendants appeal the order of the circuit court requiring the Board of Trustees of the Judges' Retirement System of Illinois (the Board) to refund plaintiff's, Thomas Maloney's, contributions to the Judges' Retirement System of Illinois (the System). Defendants contend that plaintiff waived his claim for a refund. We reverse. Plaintiff was a judge in the circuit court of Cook County from 1977 until he retired in 1990. In 1993, he was convicted on charges of racketeering, racketeering conspiracy, extortion under color of official right, and obstruction of justice arising from activities during his tenure as a judge. On July 21, 1994, the district court sentenced plaintiff to 189 months in federal prison, where he remains today. In August 1994, the Board voted to terminate plaintiff's pension benefits pursuant to section 18-163 of the Illinois Pension Code (40 ILCS 5/18-163 (West 1994)), which requires that all benefit payments cease upon a member's conviction and sentencing for a felony arising out of acts committed during the performance of the member's official duties. The Board also determined that since plaintiff had received a check for the full month of July 1994, there was an overpayment in the amount of $1,378.12 for the period from July 21, 1994 (the date of sentencing), through July 31, 1994. The Board directed the System to collect the overpayment. In November 1994, and in March and April 1995, the manager of the System, Rudy Kink, sent plaintiff letters asking him to return the overpayment to the System. In May 1995, plaintiff responded that he had appealed his conviction and asked the System to hold its repayment demand in abeyance. Mr. Kink agreed and asked plaintiff to advise the System every six months of the status of his appeal. In December 1995, plaintiff notified Mr. Kink that the United States Court of Appeals for the Seventh Circuit had affirmed his convictions, but that he planned to file a petition for rehearing. In May 1996, 813 plaintiff notified Mr. Kink that the rehearing petition had been denied and that he planned to ask the United States Supreme Court to hear his case. In October 1996, plaintiff informed Mr. Kink that the United States Supreme Court denied his petition for a writ of certiorari. In December 1999, plaintiff informed Mr. Kink that the United States Court of Appeals for the Seventh Circuit had further denied him relief. Between December 1999 and June 2003, plaintiff and Mr. Kink corresponded several times regarding the overpayment. On June 19, 2003, plaintiff wrote a letter to Mr. Kink asking for a refund of his contributions to the System pursuant to the Illinois Supreme Court decision in Shields v. Judges' Retirement System of Illinois, 204 Ill.2d 488, 274 Ill.Dec. 424, 791 N.E.2d 516 (2003). In Shields, the supreme court held that a former judge whose pension benefits had been terminated following a felony conviction was entitled to a full refund of all contributions he made to the System. Mr. Kink then wrote a memorandum to the Board, detailing plaintiff's request for a refund of his contributions to the System. Mr. Kink noted that plaintiff had received $162,340.08 in benefits and made contributions in the amount of $72,854.78. Mr. Kink also noted that plaintiff did not request a refund of his contributions when he appealed his pension termination to the Board. Additionally, Mr. Kink stated that there was no indication of any court review after the Board terminated plaintiff's benefits. At its regular meeting on August 1, 2003, the Board referred plaintiff's request for a refund to the Illinois Attorney General for review in light of the Shields decision. In September 2004, Senior Assistant Attorney General and Chief of the Opinions Bureau, Lynn Patton, sent Mr. Kink an informal opinion stating in relevant part: "[Plaintiff] retired from the bench in 1990 and began receiving benefits from the System immediately thereafter. In 1994, [plaintiff] was convicted of a service-related felony. The [Board] conducted a hearing on August 26, 1994, and entered an order terminating [plaintiff's] benefits effective July 21, 1994, the date upon which he was sentenced. Because the retirement benefits received by [plaintiff] prior to termination exceeded the amount of his contributions to the System, no refund was ordered. According to the written decision and order of the Board, [plaintiff] was provided with notice of the hearing, but did not appear or file any document contesting the termination of his benefits. Further, there is evidence that a copy of the decision was received by [plaintiff] by mail on or about October 3, 1994. An action to review the decision of an administrative agency must be initiated pursuant to the provisions of the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2002)) within 35 days from the date that a copy of the decision sought to be reviewed was served upon a party affected by the decision. 735 ILCS 5/3-103 (West 2002). Unless a review of an administrative decision is sought within the time and manner provided in the Administrative Review Law, parties to an administrative proceeding are barred from obtaining judicial review of the decision. 735 ILCS 5/3-102 (West 2002); Dopp v. Village of Northbrook, 257 Ill.App.3d 820, 824, 196 Ill. Dec. 387, 630 N.E.2d 84 (1993). There is no indication that [plaintiff] availed himself of the statutory procedure for reviewing the correctness of the administrative decision, including the Board's determination that no refund was due. It appears, therefore, that [plaintiff] has 814 waived his right to challenge the decision." At its annual meeting on October 29, 2004, the Board voted to deny plaintiff's request for a refund of contributions because he failed to file an appeal within the 35-day time frame set forth in the Administrative Review Law. In a letter dated November 3, 2004, Mr. Kink informed plaintiff of the Board's final administrative decision denying his request for a refund of his contributions and of his right to have the decision reviewed in the circuit court. On November 23, 2004, plaintiff filed a complaint for administrative review. He sought a judgment for $72,854.78, the total amount he paid into the System, plus costs. On May 25, 2005, the circuit court entered an order in favor of plaintiff, requiring the Board to refund plaintiff his contributions into the System. Defendants filed a motion to reconsider. The circuit court denied the motion, but stayed its decision pending appeal. Defendants then filed this timely appeal. Section 18-164 of the Illinois Pension Code (40 ILCS 5/18-164 (West 1994)) provides that the Administrative Review Law governs judicial review of final decisions of the Board. On appeal, we review the Board's decision rather than the circuit court's determination. Village of Oak Park v. Village of Oak Park Firefighters Pension Board, 362 Ill.App.3d 357, 365, 298 Ill.Dec. 235, 839 N.E.2d 558 (2005). Because the relevant facts of plaintiff's case were not in dispute before the Board, review is de novo. Stillo v. State Retirement Systems, ___ Ill.App.3d ___, 304 Ill.Dec. 266, 652 N.E.2d 516 (2006). The Board contends that plaintiff waived review of his request for a refund by failing to file a timely complaint for administrative review within 35 days of service of the Board's August 1994 decision terminating plaintiff's pension benefits. Plaintiff counters that the Board's August 1994 decision terminated only his pension benefits but did not terminate his right to a refund of his own contributions to the System. Plaintiff contends that the issue of a refund of his own contributions to the System was never litigated before the Board in 1994, and, thus, could not have been the subject of a complaint for administrative review. Plaintiff's contention is without merit. In 1994, the Board construed the Pension Code as requiring a refund of contributions to the System only if such contributions exceeded the retirement benefits received by the plaintiff prior to termination. Since the plaintiff's retirement benefits exceeded his contributions to the System, no refund was ordered; rather, the Board determined that plaintiff had been overpaid an amount of $1,378.12, and it directed the System to collect the overpayment. Thus, the issue of a refund of plaintiff's contributions to the System was intertwined with the issue of his benefits determination such that both issues were properly before the Board and were the subject of its August 1994 decision. As plaintiff failed to file a complaint for administrative review within 35 days of service of the August 1994 decision, judicial review of the decision (including the determination that no refund was due) is barred. See Nudell v. Forest Preserve District of Cook County, 207 Ill.2d 409, 423, 278 Ill.Dec. 542, 799 N.E.2d 260 (2003) (the requirement that a complaint be filed within the 35-day limit is jurisdictional, and if a complaint is not timely filed, judicial review of the administrative decision is barred). Plaintiff argues that Shields compels a different result. As discussed, in Shields, our supreme court held that a former judge whose pension benefits had been terminated following a felony conviction 815 was entitled to a full refund of all contributions he made to the System. In Shields, though, the plaintiff there timely filed his complaint for administrative review of the Board's decision regarding his right to a refund, thereby preserving the issue for judicial review. See Shields, 204 Ill.2d at 491, 274 Ill.Dec. 424, 791 N.E.2d 516; Shields v. Judges' Retirement System of Illinois, 329 Ill.App.3d 27, 30-31, 263 Ill. Dec. 266, 768 N.E.2d 26 (2001) (the underlying appellate court opinion). In the present case, by contrast, plaintiff failed to timely file a complaint for administrative review. Accordingly, judicial review of the decision is barred. See our discussion above. Plaintiff also argues that Finn v. Wetmore, 212 Ill.App. 550 (1918), compels a different result. Finn v. Wetmore is not binding on this court and has no precedential value as it was decided prior to 1935. Sklodowski v. Countrywide Home Loans, Inc., 358 Ill.App.3d 696, 701, 295 Ill.Dec. 38, 832 N.E.2d 189 (2005). Further, Finn v. Wetmore is inapposite, as it did not involve the same facts here, specifically, the failure of the plaintiff to file a complaint for administrative review of the Board's decision terminating his pension benefits and denying him a refund of his contributions to the System. Plaintiff next contends that notice of the August 26, 1994, Board meeting or of the decision terminating his benefits were never sent to him. However, plaintiff's contention is belied by the record. Specifically, the System's executive secretary, Michael Mory, informed the Board at its August 26 meeting that notice had been furnished to plaintiff. In its written decision, the Board states that notice of the hearing had been mailed to plaintiff on July 27. The record on appeal also contains a certificate of service stating that a copy of the August 26 decision was placed in the mail on September 28, 1994, and addressed to plaintiff's home address. Such mailing constituted sufficient service of the decision, such that the 35-day appeal period began to run. See 735 ILCS 5/3-103 (West 1994) (agency decision is deemed to have been served when a copy of the decision is placed in the United States mail, addressed to the party affected by the decision at his last known residence.) Plaintiff argues that he did not receive any such mailing sent to his home, as he was in prison, having been sentenced on July 21, 1994. Plaintiff does not contend, though, that he ever informed the Board of his prison address; therefore, the Board correctly sent the copy of its decision to plaintiff's last known address. Plaintiff argues for dismissal of the defendants' appeal based on the Board's failure to include in the record the written notice of the August 1994 Board meeting or the certified copy of plaintiff's conviction. An appeal shall be dismissed where the incomplete record renders the appellate court incapable of determining whether the actions of the trial court or the administrative agency were appropriate. See Neylon v. Illinois Racing Board, 66 Ill.App.3d 621, 623, 23 Ill.Dec. 639, 384 N.E.2d 433 (1978). In the present case, the record is not so incomplete as to hinder our review. Accordingly, dismissal is not warranted. Plaintiff also argues that the Board's August 1994 decision did not comply with section 10-50(b) of the Illinois Administrative Procedure Act (5 ILCS 100/10-50(b) (West 1994)), as the decision did not specifically state that it was a final order subject to the Administrative Review Law. (5 ILCS 100/10-50(b) (West 1994) ("All agency orders shall specify whether they are final and subject to the Administrative Review Law")). *816 Plaintiff cites no cases holding that the Board's failure to so comply with section 10-50(b) tolls the time for filing a complaint for administrative review from an order expressly terminating his pension benefits, which order was served upon the plaintiff. We decline to so hold. For the foregoing reasons, we reverse the circuit court. Reversed. GALLAGHER, P.J., and NEVILLE, J., concur.	{ "pile_set_name": "FreeLaw" }
959 P.2d 799 (1998) 191 Ariz. 542 STATE of Arizona, Appellee. v. Robert LEE, Appellant. No. CR-97-0100-PR. Supreme Court of Arizona, En Banc. May 28, 1998. 800 Grant Woods, Attorney General by J.D. Nielsen, Assistant Attorney General, Phoenix, for Appellee. Dean W. Trebesch, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender, Phoenix, for Appellant. OPINION ZLAKET, Chief Justice. ¶ 1 Shortly before midnight on October 21, 1994, Robert Lee entered Terminal 3 at Phoenix Sky Harbor Airport carrying a fairly new, hard-sided suitcase. He stopped a few feet in front of the American Trans Air ticket counter and put the bag down. Moments later, Myrtis Harrison hurried into the terminal, walked directly to the counter, and purchased two tickets on a flight leaving within minutes for Chicago. Lee joined Harrison at the counter, setting the suitcase on the luggage stand. ¶ 2 An undercover officer with the Phoenix Commercial Drug Interdiction Unit noticed Lee's entrance into the terminal. The officer watched him for a few minutes and, when the suitcase had been checked and placed on the baggage conveyor, contacted another narcotics agent who had a dog trained to detect drugs. In the baggage area, the dog "alerted" to the suitcase. The detectives then seized the luggage and arrested both Lee and Harrison near the ticket counter. Harrison had in her possession the baggage claim check, and Lee had keys in his pocket that fit the luggage. After obtaining a search warrant, police opened the suitcase. Inside, along with a garment bag holding Harrison's clothing, were six heat-sealed plastic packages containing four kilograms of marijuana. ¶ 3 Harrison and Lee were each charged with possession for sale of marijuana weighing four pounds or more, and transportation for sale of marijuana weighing over two pounds, both class 2 felonies. Early in the proceedings, the state and the defendants agreed to a severance. Judge Peter D'Angelo granted their stipulated motion. About six months later, Harrison reversed her position and moved to consolidate the cases. The state opposed the motion because it had already offered Lee a plea agreement, the 801 terms of which would have allowed him to plead guilty to a class 4 felony provided he testified at Harrison's trial. The state indicated that it would likely withdraw the plea offer if the motion to consolidate was granted. Judge D'Angelo denied the motion. ¶ 4 A few weeks later, on the eve of jury selection in Harrison's trial, Judge Paul Katz on his own initiative ordered the cases reconsolidated. The state withdrew Lee's plea offer and the defendants were tried together. The jury acquitted Harrison, but found Lee guilty on both counts. The court of appeals affirmed by memorandum decision. CONSOLIDATION ¶ 5 Defendant claims that the trial court erred when it consolidated these cases because it interfered with a pending plea offer. We examine the record for a clear abuse of discretion. See State v. Kinkade, 140 Ariz. 91, 93, 680 P.2d 801, 803 (1984). ¶ 6 Defendants may be joined "by the court or upon motion of either party, provided that the ends of justice will not be defeated thereby." Ariz. R.Crim. P. 13.3(c) (emphasis added). Lee argues that following consolidation, the state no longer had any incentive to plea bargain and he was unfairly deprived of the opportunity to obtain a favorable deal. We observe, however, that a defendant is not entitled to a plea offer as a matter of right. See State v. Morse, 127 Ariz. 25, 31, 617 P.2d 1141, 1147 (1980). Plea bargaining is nothing more than a pragmatic tool for enhancing judicial economy, conserving state resources, and promoting justice. See id. at 32, 617 P.2d at 1148. ¶ 7 While the state and a defendant may negotiate over "any aspect" of a case, including sentencing, the trial court ultimately has authority to approve or reject a bargain in the interests of justice. See Ariz. R.Crim. P. 17.4(d). Such a decision falls within the judge's sound discretion, and wide latitude is permitted in this regard. See State v. De Nistor, 143 Ariz. 407, 411, 694 P.2d 237, 241 (1985). ¶ 8 The transcript of the pretrial hearing, in which Judge Katz raised reconsolidation on his own initiative, shows that he knew of the state's plea offer and recognized that if the cases were joined for trial, Lee would likely refuse to testify in order to avoid incriminating himself. He stated: The State should either enter a plea agreement with Mr. Lee or it shouldn't .... if the State feels that its case against Mr. Lee is weak or deficient or the State feels that he is the less culpable defendant, if it in good faith believes that the plea agreement [that] has been offered to him ... is appropriate, it ought to be entered on the record of this court or the State is free to withdraw from it or Mr. Lee is free to withdraw from it. ¶ 9 The record indicates that Judge Katz complied with Rule 13.3(c). He reviewed the complete file, weighed the evidence advanced at the hearing, and considered the arguments of counsel. In the end, the judge found no "real articulable reason" or "legal ground" to maintain separate trials other than the creation of a favorable environment for Lee's plea agreement. We find no abuse of discretion. DRUG COURIER PROFILE TESTIMONY ¶ 10 Defendant further asserts that the trial court erred in admitting drug courier profile testimony as substantive evidence of guilt. A drug courier profile is a loose assortment of general, often contradictory, characteristics and behaviors used by police officers to explain their reasons for stopping and questioning persons about possible illegal drug activity. See Mark J. Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; And Now in the Jury Box, 46 Am. U.L.Rev. 747, 748 (1997). No nationally recognized profile exists, and law enforcement agencies, even individual officers, develop their own "profiles" based on experience. See id. Courts commonly describe drug courier profiles as an "informal compilation of characteristics" or an "abstract of characteristics" typically displayed by persons trafficking in illegal drugs. See Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980); 802 Florida v. Royer, 460 U.S. 491, 493, 103 S.Ct. 1319, 1322, 75 L.Ed.2d 229 (1983). ¶ 11 Generally, such profile evidence is offered in the context of suppression and probable cause hearings, where law enforcement's justification for a stop, arrest, or confiscation is at issue. See, e.g., Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (noting that mannerisms and other characteristics matching a "drug courier profile" may be sufficient grounds for a brief investigative police stop). Increasingly, however, profiles have been used for other purposes: (1) as background for a police stop and search, see United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir.1990) (finding no error in using a drug courier profile to provide jurors with a full portrayal of events surrounding arrest); (2) as foundation for expert opinions, see United States v. Webb, 115 F.3d 711, 715 (9th Cir.1997) (permitting drug courier profile testimony of police expert to assist jury in understanding why a person would conceal a weapon in the engine of a car); (3) to explain a method of operation, see United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1996) (approving the use of drug courier profile testimony to "assist the jury in understanding modus operandi in a complex criminal case"); and (4) as rebuttal evidence, see United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir.1989) ("The Government may introduce profile testimony ... only to rebut specific attempts by the defense to suggest innocence based on the particular characteristics described in the profile."). ¶ 12 Notwithstanding these exceptions, a significant majority of jurisdictions have condemned the use of drug courier profile evidence as substantive proof of guilt. See State v. Walker, 181 Ariz. 475, 481, 891 P.2d 942, 948 (App.1995) (citing cases from the Fourth, Fifth, Eighth, Ninth, and Eleventh federal circuits, as well as various state courts). We agree with this position. As our court of appeals has stated in the context of car thefts, the "use of profile evidence to indicate guilt ... creates too high a risk that a defendant will be convicted not for what he did but for what others are doing." State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.1991). This observation is particularly relevant to the case before us. ¶ 13 To obtain a conviction of possession or transportation for sale, the state had to prove that the defendant knew there was marijuana in the suitcase. See A.R.S. § 13-3405(A)(2)("A person shall not knowingly possess marijuana for sale."); A.R.S. § 13-3405(A)(4)("A person shall not knowingly transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana."). Under Arizona law and the jury instructions here, "knowingly" means having an awareness or belief of the conduct at issue. A.R.S. § 13-105(9)(b) (West Supp. 1996) (formerly § 13-105(6)(b)). In attempting to prove such knowledge, the prosecutor elicited testimony from Officer Galbari, who said that she stopped Lee and Harrison because they were toting a "large hard-sided plastic suitcase," were taking the "last flight out to Chicago," a "very high demand area for the shipment of illegal drugs from Arizona," and "in my experience working at the airport for four years and contacting people that do have illegal drugs with them, they more often then not check in extremely late for their departing flights." The dog's positive alert subsequently supported the officer's suspicions. ¶ 14 The attorneys for both Harrison and Lee objected to the testimony and later moved to strike it. The state argued that the evidence was necessary to meet its burden of proof. Because this was a transportation and possession for sale case, it said, we have the right to show drug courier activities and how consistent this was with them.... Part of their knowledge would go to the fact that their actions are consistent with drug couriers and drug activities. And they do have knowledge of it because their actions are consistent with it. The fault in this reasoning lies in the assumption that because someone shares characteristicsmany of them innocent and commonplacewith a certain type of offender, that individual must also possess the same criminal culpability. ¶ 15 The trial judge might have salvaged the situation at this point by striking the 803 testimony. Instead, he allowed the line of questioning to continue, permitting the state to introduce concepts such as "demand" cities (away from the borders where illegal drugs are highly coveted) and "source" cities (such as Phoenix, with easy access to Mexican suppliers). ¶ 16 Matters only worsened when Harrison's counsel began his cross-examination of Officer Galbari: "Well, let's go over your courier profile that you were talking about earlier." Harrison's attorney then pursued at length the factors that the officer had relied on to make the arrest. He explored the significance of hard versus soft-sided luggage, the lack of identification on the bag, the time of day of the flight, destination and departure cities, the gender and age of the typical courier, and other patterns of behavior. Counsel's apparent purpose was to undermine the reliability of this type of information, but in emphasizing it he effectively encouraged the jurors to mentally compare the defendant's actions with the profile being discussed. ¶ 17 The following day, the judge heard argument on motions to strike the testimony or declare a mistrial. He ultimately found no error in admitting the evidence. For the remainder of the trial, the courier profile theme became a steady refrain, in direct testimony, cross-examination, and closing argument. ¶ 18 We find that at least by the time of Officer Galbari's cross-examination, the prejudicial effect of the drug courier profile was apparent. This evidence, however, should not have been admitted in the first instance since its only purpose was to suggest that because the accuseds' behavior was consistent with that of known drug couriers, they likewise must have been couriers. It makes no difference to our conclusion that counsel for the co-defendant contributed to the harm. Neither is the state's justification for offering the evidence of any convincing import. By the time of trial, the reasons for the arresting officers' suspicions were no longer relevant. This was not a suppression hearing, nor was there an unresolved issue of probable cause. The state had to prove beyond a reasonable doubt defendants' awareness or belief as to the possession and transportation for sale of marijuana. Such an element could not be supplied by means of a drug courier profile. To hold otherwise would open the door to all sorts of "profiles" developed by individual law enforcement officers in various settings, both in and out of drug enforcement. Guilt by association with certain "characteristics" is the obvious danger of such a scenario, and easily explains why the "split of authority" noted by the dissent is so lopsided in favor of the stance we take today. ¶ 19 As noted above, there may be situations in which drug courier profile evidence has significance beyond the mere suggestion that because an accused's conduct is similar to that of other proven violators, he too must be guilty. This is not one of those situations. Moreover, we do not agree with the court of appeals or our dissenting colleagues that the admission of this evidence was harmless. For such a conclusion to stand, we would have to find "beyond a reasonable doubt, that the error did not contribute to or affect the verdict." State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993); see also State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980). Here, there were two defendants but only one suitcase. No fingerprints were found inside the luggage, no one testified to having seen the drugs packed, and no other evidence was introduced linking either defendant directly to the contents of the suitcase. Consequently, the profile testimony might well have weighed heavily in the jury's evaluation of the knowledge issue. From our vantage point, it cannot be said beyond a reasonable doubt that this evidence did not affect the verdict. ¶ 20 The trial judge obviously attempted to repair the damage with the following instruction: Evidence of other investigations by the police officers involved in this case and evidence regarding the basis for their suspicions of the defendants has been admitted into evidence in this case. Such evidence is not to be considered by you to prove the character of the defendants or to show that they committed the offenses charged. It may, however, be considered 804 by you regarding the police investigation techniques utilized in this case. This charge, however, failed to specifically identify the drug courier testimony as that which the jury was prohibited from considering. Moreover, we conclude that it was inadequate to obviate the risk of prejudice. See State v. Grannis, 183 Ariz. 52, 58, 900 P.2d 1, 7 (1995) (citing State v. Runningeagle, 176 Ariz. 59, 68, 859 P.2d 169, 178 (1993)). ¶ 21 The dissenters claim to find support for their harmless error analysis in United States v. Lui, 941 F.2d 844 (9th Cir.1991). We respectfully disagree. The evidence of guilt in Lui was much stronger than in this case. In the first place, Lui was alone. Moreover, he had arrived in Los Angeles from Hong Kong following a ten day stop in Taiwan and two days in Korea. He was being checked through international customs when the inspector denoted some degree of nervousness. But that was not all. Even though Lui told the inspector he had come to the United States to show jade figurine samples to a relative, he had not claimed them on his customs declaration. He thereafter, identified his own bags. He never asserted that anyone else owned or had access to them. Behind false siding, the customs inspector found over twelve kilograms of nearly 96 percent pure heroin. ¶ 22 The independent evidence of guilt in the Seventh Circuit case cited by the dissent, United States v. Foster, 939 F.2d 445 (7th Cir.1991), was even more overwhelming. In any event, none of the federal cases referred to, directly or indirectly, are binding on us. They may be helpful in providing guidance, but that is all. We deal here exclusively with a matter of state law. SEVERANCE ¶ 23 Both defense counsel moved for severance on more than one occasion during the trial. Defendant Lee contends a severance was required once it became apparent that he and Harrison were offering "antagonistic defenses." State v. Cruz, 137 Ariz. 541, 545, 672 P.2d 470, 474 (1983) (holding that the trial judge must sever when defenses are so antagonistic as to be mutually exclusive). While the record suggests that the parties' defenses were mutually exclusive and antagonistic, each side implying the other had secreted the drugs in the suitcase, we need not decide this issue in view of our disposition on other grounds. DISPOSITION ¶ 24 Because drug courier profile testimony was improperly admitted as substantive proof of guilt, and we cannot say that this error was harmless, we reverse and remand for a new trial. FELDMAN and MOELLER, JJ., concur. JONES, Vice Chief Justice, concurring in part, dissenting in part. ¶ 25 I would affirm the defendant's convictions and would adopt the reasoning of the court of appeals. While I agree with the majority that "drug profile courier" evidence should not be admitted to prove a substantive element of the crime charged, I disagree, on the record before us, that the error was prejudicial or harmful to the defendant. I also disagree with the belief stated by our dissenting justice that "drug courier profile" evidence is relevant to the defendant's knowledge of his own possession and thus should have been considered. In my view, profile evidence bears little or no relationship to defendant's personal knowledge of his own criminal act. Moreover, the majority has not abandoned harmless error analysis in appropriate cases[1] but simply holds, on this record, that admission of the evidence was error and that the error was unduly prejudicial. ¶ 26 Courier profile evidence in drug cases can be relevant to threshold or background questions, not present in the instant case, such as, the legitimacy of an arrest or stop, the suppression of evidence in cases of search and seizure or probable cause, the defendant's identity, or the jury's ability to understand modus operandi. Profile evidence serves no purpose, however, where, as here, the defendant's specific awareness that 805 he possesses drugs is the only issue to be resolved. The reason is that the conduct of other persons unconnected with the crime charged, their manner, style, and patterns of behavior, offer nothing persuasive as to this defendant's personal knowledge of his crime. That a crime was committed was made clear by discovery of the drugs. Linking defendant to the crime depends on independent evidence of the defendant's own state of mind. ¶ 27 The problem is the invitation to prejudice. "Profile" evidence is inherently prejudicial in a case of this nature because of the potential for including innocent citizens as profiled drug couriers. See United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989); United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir.1983). ¶ 28 On the record before us, I would adhere to the rule followed by the majority, that it was error to admit drug courier profile evidence at trial to prove defendant's knowledge as a substantive element of the crime charged. In accord with the dissent, however, I would find the error harmless because I believe the independent evidence of defendant's guilt outweighs whatever prejudice may have been caused by the profile testimony. ¶ 29 Numerous cases from other jurisdictions support the foregoing result. Among them, two federal cases, though admittedly not binding, are persuasive. In United States v. Quigley, 890 F.2d 1019 (8th Cir. 1989), drug courier profile evidence was introduced through a narcotics agent. The agent testified of various profile characteristics and tied them to Quigley. Id. at 1028. The court held that to admit such evidence was error because of the potential for prejudice. But there was introduced at trial ample other evidence linking Quigley to the possession of cocaine. This prompted the court to affirm the conviction and hold that the admission of "drug courier profile" characteristics was harmless error. ¶ 30 Similarly, in United States v. Lui, 941 F.2d 844 (9th Cir.1991), cited by the dissent and factually distinguished by the majority, the Ninth Circuit denounced the use of drug courier profile evidence but held, on the facts of the case, that the error was harmless because the independent evidence of defendant's guilt was sufficient to sustain the conviction. ¶ 31 In both Quigley and Lui substantial independent evidence was introduced linking the defendants to knowing possession of the drugs. Similarly, there is sufficient proof in this record, independent of the "profile," that defendant was fully aware that he possessed drugs. He was observed, alone, carrying the suitcase containing the drugs into Phoenix Sky Harbor terminal three. When his traveling companion, the ticket purchaser, arrived and went to the ticket counter, defendant, himself, approached the counter, walked to the companion, and placed the suitcase on the luggage stand next to her. The companion bought the tickets and received them along with the baggage claim check. The persuasive evidence of defendant's knowledge of the suitcase contents was that he physically carried the bag into the terminal, delivered it to the ticket agent, and had sole possession of the key. The defendant alone could access the suitcase, and he alone controlled the contraband which the suitcase contained. ¶ 32 In my mind, these facts overcome any prejudice caused by the profile evidence. I do not believe the error materially affected the verdicts. See United States v. Echavarria-Olarte, 904 F.2d 1391, 1398 (9th Cir. 1990). I would hold that the guilty verdicts were sufficiently grounded in evidence independent of the drug courier profile characteristics and that such evidence was adequate to connect defendant to actual possession and knowledge of the drugs beyond a reasonable doubt. MARTONE, Justice, dissenting. ¶ 33 I cannot join the court's opinion for two separate and independent reasons. First, I agree with the United States Court of Appeals for the Seventh Circuit that there is no per se bar to the admission of drug courier profile evidence as substantive proof of guilt. United States v. Foster, 939 F.2d 445, 451 (7th Cir.1991). Second, even if such 806 evidence were inadmissible, this is a plain case of harmless error. I. Drug Courier Profile as Substantive Evidence of Guilt[2] ¶ 34 There is a split of authority over whether drug courier profile evidence is admissible on the question of guilt. The differences are best expressed in two competing opinions in the United States Court of Appeals. In United States v. Lui, 941 F.2d 844, 847 (9th Cir.1991), the court rejected the use of drug courier profile evidence as substantive evidence of guilt, believing it to be inherently prejudicial. But in United States v. Foster, 939 F.2d at 451-52, the court rejected any per se bar to the admission of drug courier profile evidence, leaving the question of potential prejudice in any given case to the trial court. I prefer the Foster approach because I believe that the question of admissibility in the first instance is a question of relevance, not a question of prejudice. As the court said, "[i]f the testimony is relevant to the defendant's guilt or innocence, then it is potentially admissible at trial." Id. at 451. Evidence is relevant if it has "any tendency" to make the existence of any material fact more or less probable than it would be without the evidence. Rule 401, Ariz. R. Evid. All relevant evidence is admissible unless otherwise provided. Rule 402, Ariz. R. Evid. ¶ 35 Drug courier profile evidence does indeed meet the threshold "tendency" test of Rule 401. Through experience and training in the culture and practices of the drug trade, one can help the jury unmask otherwise neutral behavior. The expert's testimony is relevant to the issue of knowledgeit has a "tendency" to make it more probable that the defendant knew the suitcase contained drugs. For example, in Foster, the court said it "may be innocent behavior to purchase a one-way train ticket, for cash, on the same day as departure from a source city for illegal drugs, under a false name, and carrying a beeper, but it is a fair use of expert testimony to offer another explanation for such behavior." 939 F.2d at 452. ¶ 36 Prejudice, on the other hand, is squarely addressed in Rule 403, Ariz. R. Evid., where evidence, otherwise relevant may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Judgment calls under Rule 403 have nothing to do with general admissibility under Rule 401. By adopting a per se rule of exclusion, the court melds the two doctrines into one. Relevant evidence will now be excluded in some cases in which it ought to be admitted. I agree with the Seventh Circuit that drug courier profile evidence is helpful to the jury because [d]espite our country's `war on drugs' and its accompanying media coverage, it is still a reasonable assumption that jurors are not well versed in the behavior of drug dealers. `The investigator and the expert witness both serve as a link to the drug culture in providing the jury with [an] understanding of the intricate patterns and modus operandi' of those involved in narcotics trafficking. 939 F.2d at 451-52 (citation omitted). II. Harmless Error[3] ¶ 37 The majority prefers the per se exclusionary approach of the Ninth Circuit. But in United States v. Lui, supra, the Ninth Circuit found that the admission of such evidence was harmless where the record overwhelmingly demonstrated the defendant's guilt. There, Lui was carrying nearly 28 pounds of heroin in suitcases to which he had the keys and he otherwise acted suspiciously. 941 F.2d at 848. Here, the suitcase contained a significant amount of drugs that were professionally packaged in heat-sealed plastic bags. Lee surrendered the suitcase at the check-in counter and had the keys to their locks. These facts alone provide overwhelming evidence of guilt. Under these 807 circumstances, the majority could say with safety that what it perceives to be error was harmless indeed. ¶ 38 I therefore respectfully dissent. NOTES [1] See the majority's comparison of the facts in United States v. Lui, 941 F.2d 844 (9th Cir.1991), with the facts of the instant case on the issue of harmlessness. Majority opinion at ¶ 22. [2] Although the majority adopts a per se rule of exclusion of drug courier profile evidence as substantive proof of guilt, it acknowledges that such evidence may be admissible for other purposes, e.g., to establish probable cause. Ante, at ¶ 11. [3] Under the majority's per se approach, the admission of drug courier profile evidence as substantive proof of guilt will always be error. But even under the majority's approach, it will not always be reversible error. Its erroneous admission is subject to a harmless error analysis.	{ "pile_set_name": "FreeLaw" }
559 F.2d 1208 Moranv.U. S. No. 76-2439 United States Court of Appeals, Third Circuit 6/9/77 1 E.D.Pa. AFFIRMED	{ "pile_set_name": "FreeLaw" }
208 U.S. 149 (1908) HOUGHTON v. MEYER, POSTMASTER GENERAL.[1] No. 49. Supreme Court of United States. Argued November 12, 1907. Decided January 20, 1908. APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. 150 Mr. Holmes Conrad and Mr. William S. Hall for appellants. Mr. Henry H. Glassie, Special Assistant to the Attorney General, for appellee. 152 MR. JUSTICE DAY delivered the opinion of the court. This case is here by appeal from the Court of Appeals of the District of Columbia. The case originated in an action brought against the then Postmaster General (Mr. Payne) to compel him to enter and transmit certain publications of the complainants, Houghton, Mifflin & Company, as second class matter instead of third class as ruled by the Postmaster General; and the bill prayed an injunction restraining the Postmaster General from refusing to transmit them at second class matter rates. A restraining order was issued upon the filing of the bill on May 31, 1902, in the following terms: "Upon the complainant filing undertaking, as required by equity rule 42, the defendant will be hereby restrained as prayed in the within-mentioned bill until further order, to 153 be made, if at all, after a hearing, which is fixed for the 16th day of June at ten o'clock A.M., 1902, of which take notice. "By the court: A.B. HAGNER, Justice." An undertaking was given in the following terms: "George H. Mifflin, one of the complainants, and the American Surety Company of New York, surety, hereby undertake to make good to the defendants all damages by him suffered or sustained by reason of wrongfully and inequitably suing out the injunction in the above-entitled cause, and stipulate that the damages may be ascertained in such manner as the justice shall direct, and that, on dissolving the injunction, he may give judgment thereon against the principal and sureties for said damages in the decree itself dissolving the injunction. "GEORGE H. MIFFLIN. "THE AMERICAN SURETY COMPANY, NEW YORK. "By JNO. S. LOUD. "Approved 4 June, 1902. A.B. HAGNER." No further hearing was had upon the application for a temporary injunction, and on March 10, 1903, the case was heard on the merits and the following injunction awarded: "This cause, coming on to be heard upon the bill and the exhibits filed therewith, and on the papers filed in the cause and the proceedings had therein, was argued by counsel. On consideration thereof it is this 10th day of March, 1903, adjudged, ordered, and decreed "(1.) That the complainants are entitled to have their publications entitled `Riverside Literature Series' received and transmitted through the mails as mailable matter of the second class, as defined by the act of Congress approved March 3, 1879. "(2.) That the Postmaster General be, and he is hereby, perpetually restrained from enforcing and continuing the cancellation 154 of the certificate of entry set forth in paragraph six of said bill, and from refusing to receive said publication and transmit the same through the mails as mailable matter of the second class, in accordance with the provisions of said act of Congress approved March 3, 1879, and from denying to the complainants the receipt, entry, and transmission through the mails of their publication entitled `Riverside Literature Series' as mailable matter of the second class, as defined by the act of Congress approved March 3, 1879." An appeal was taken to the Court of Appeals of the District of Columbia, and on June 5, 1903, the decree of the Supreme Court was reversed and the case remanded to the court below, with directions to dismiss the bill. 22 App. D.C. 234. From that decree an appeal was taken to this court, and the decree of the District Court of Appeals was affirmed on April 11, 1904. 194 U.S. 88. Upon receipt of a mandate of this court the District Court of Appeals issued its mandate, ordering the court below to dismiss the bill. The Postmaster General moved the court to enter a decree upon the mandate of the District Court of Appeals, to dismiss the bill dissolving the injunction, and ascertain the damages by reason of the violation thereof. The District Supreme Court entered a decree setting aside its original decree, and dismissed the bill, and dissolved the injunction theretofore granted, but being of opinion that, as matter of law, the complainants and sureties on the injunction bond given in the case were not liable to damages thereon, the motion for ascertainment of damages upon such undertaking was overruled and denied, and the injunction undertaking cancelled and annulled. From the part of the decree refusing to assess damages the Postmaster General, Mr. Cortelyou having succeeded Mr. Payne, appealed to the District Court of Appeals, where the order of the court below was reversed, and a decree directed against the appellant and the surety on the injunction bond for the sum of $6,880.86, the amount with interest stipulated as the 155 difference between postage due at third class rate and that paid as second class rate "between the date of the filing of the injunction herein and June 16, 1904, when such mailing at the second class rate was discontinued." 27 App. D.C. 188. Thereupon appeal was taken to this court. It is the contention of the appellants that the original undertaking being entered only for a temporary purpose, had spent its force, and that there is no liability thereon, notwithstanding the fact that the original decree granting a permanent injunction was reversed by the District Court of Appeals, which judgment was affirmed in this court. The contention of the appellee is that the damages sustained by the Postmaster General during the time pending this action was secured by the bond, and recovery may be had for the damages sustained, or, if not for the full amount, at least for the time from the granting of the restraining order until the final decree in the court of original jurisdiction. The determination of the question involved depends upon the nature and character of the undertaking given. The restraining order issued in the case was authorized by § 718 of the Revised Statutes of the United States, which is as follows: "Whenever notice is given of a motion for an injunction out of a Circuit or District Court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge." Rev. Stat. § 718. Under this section, originally passed June 1, 1872 (§ 7, c. 255, 17 Stat. 196, 197), a restraining order with features distinguishing it from an interlocutory injunction was introduced into the statutory law. In the prior act of Congress of March 3, 1793, c. 22, 1 Stat. 334, 335, it was provided in § 5: "Nor shall a writ of injunction be granted in any case without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same." 156 By force of § 718 a judge may grant a restraining order in case it appears to him there is danger of irreparable injury, to be in force "until the decision upon the motion" for temporary injunction. Thus by its very terms the section (718) does not deal with temporary injunctions, concerning which power is given in other sections of the statutes, but is intended to give power to preserve the status quo when there is danger of irreparable injury from delay in giving the notice required by Equity Rule 55, governing the issue of injunctions. While the statutory restraining order is a species of temporary injunction, it is only authorized, as § 718 imports by its terms, until the pending motion for a temporary injunction can be heard and decided. Yuengling v. Johnson, 1 Hughes, 607; S.C., 30 Fed. Cases, 866, Case No. 18195; Barstow v. Becket 110 Fed. Rep. 826, 827; North American Land and Timber Co. v. Watkins, 109 Fed. Rep. 101, 106; Worth Mfg. Co. v. Bingham, 116 Fed. Rep. 785, 789. And the same view has been recognized in other jurisdictions having similar statutory provisions. "A temporary restraining order is distinguished from an interlocutory injunction in that it is ordinarily granted merely pending the hearing of a motion for a temporary injunction and its life ceases with the disposition of that motion and without further order of the court, while, as we have seen, an interlocutory injunction is usually granted until the coming in of the answer or until the final hearing of the cause and stands as a binding restraint until rescinded by the further action of the court." 1 High on Injunctions (4th ed.), § 3. Turning from a consideration of the authority conferred to the terms of the order, it will be seen that the judge acted under the terms of § 718. For the order of restraint is "until further order, to be made, if at all, after a hearing, which is fixed for the 16th day of June, at ten o'clock A.M., 1902, of which take notice." This is the order of which the defendant had notice and concerning which indemnity was required and given in the bond now in suit. 157 As we have noticed, no further undertaking was required of Houghton, Mifflin & Company after the restraining order issued in its favor. The Court of Appeals of the District said, 27 App. D.C. 195: "But we do not think the bond ceased to be in force after the decree was entered making the injunction perpetual. The parties, by their actions, treated it as though it continued to apply. The appellant would, had any question been raised, have asked for a new bond, in which event the appellees doubtless would have conceded that the bond remained in force. When the main case was before this court, and later was taken to the United States Supreme Court, it was considered that the original undertaking was in force or a new one would have been required, one other than the supersedeas bond then given." But we do not think the case can be decided upon conjecture as to what bonds might have been required. We must determine the case upon the liability of the principals and sureties on the bond which was actually given. When the parties gave this undertaking, the court, exercising its discretion, had required that the restraining order should be upon condition that bond be given to secure the defendant against loss because of this temporary restraint. It is true that the restraining order was, by its terms, to be in force until "further order," to be made, if at all, after hearing. Neither party brought on for hearing the pending motion for a temporary injunction. When the further order was made nothing was said of the restraining order. A new and permanent injunction in favor of the plaintiffs was granted. This decree necessarily superseded the restraining order, and it expired by the limitation contained in its terms, and there was no further liability on the bond, given only to secure that order. It is further contended by the appellants that they should be relieved from all liability on this bond, upon the principles laid down in Russell v. Farley, 105 U.S. 433. In that case the 158 equity practice in the courts of the United States concerning security for injunctions was elaborately discussed by Mr. Justice Bradley, speaking for the court. It was held that the exercise of discretion involved in the decision of the court of original jurisdiction, in awarding or withholding damages, should only be reversed in clear cases. And examining the procedure in the case then in hand, with a view to ascertaining whether injustice had been done, the fact is shown that the injunction secured by the obligation given in that case had never been entirely dissolved; that it had never been decided that the complainant was not entitled to it, at least as to a portion of the property claimed by the parties suing out the injunction, and it turned out on the final hearing that as to more than one-half of the claim the injunction was properly issued. In course of the discussion the learned justice says, p. 442: "When the pledge [deposited by order of court] is no longer required for the purposes of justice, the court must have the power to release it, and leave the parties to the ordinary remedies given by the law to litigants inter sese. Where the fund is security for a debt or a balance of account, or other money demand, this would rarely be allowable; but in many other cases it might not infrequently occur that injustice would result from keeping property impounded in the court. On general principles the same reason applies where, instead of a pledge of money or property, a party is required to give bond to answer the damage which the adverse party may sustain by the action of the court. In the course of the cause, or at the final hearing, it may manifestly appear that such an extraordinary security ought not to be retained as a basis of further litigation between the parties; that the suit has been fairly and honestly pursued or defended by the party who was required to enter into the undertaking, and that it would be inequitable to subject him to any other liability than that which the law imposes in ordinary cases. In such a case it would be a perversion, rather than a furtherance, of justice 159 to deny to the court the power to supersede the stipulation imposed." In the present case the court of original jurisdiction, the Supreme Court of the District, refused to assess damages upon the injunction bond, for what reason the record does not disclose. The District Court of Appeals, as we have seen, assessed damages for the entire period, during which it held the injunction to be in force. We do not think this case comes within the class outlined in Russell v. Farley, wherein the order of the trial court ought not to be disturbed upon principles of equity and in view of the superior knowledge of that court of the conduct of the parties in the course of the litigation. In this case the Government and the appellants were in controversy as to the rate of postage to be charged upon a certain class of publications sent through the mail by the appellants. It is true that the department's rulings for some years had been in favor of the contention of the appellants as to the class to which this mailable matter belonged. When the Postmaster General ruled to the contrary, and correctly, as has now been held in the District Court of Appeals and in this court, the publishers applied to the court for an injunction to continue them in their original right to receive this lower rate of postage pending the litigation which they had begun, with a view to testing the right of the Government to make this demand. The court entertained the suit and awarded a restraining order, but upon the condition that if the publishers continued to receive the lower rate postage for which they contended, notwithstanding the ruling of the Postmaster General, the Government was to be indemnified against loss should it turn out that its contention was right and that of the complainants wrong. The publishers accepted this condition, and gave the bond to secure their right to continue sending the mailable matter in controversy at the old rate, pending the further order of the court. As a result of the final decision in this court, it turned out that the Postmaster General was right, and that the Government 160 was justly entitled to the additional rate of postage as ruled by the Postmaster General. The result of the decision established not only the right of the Government to receive the additional postage, pending the controversy, but also established the fact that the publishers had received a very considerable amount of service from the Government in carrying the publications through the mails at a rate less than it was entitled to charge. We do not perceive, in this condition of affairs, any room for the application of the doctrine laid down in Russell v. Farley, which permits a court to relieve from liability on an injunction bond. The result of this litigation leaves no doubt as to the rights of the parties, and the Government's right to avail itself of the security given to secure payment of the postage which it was legally entitled to charge. It is not necessary for us to decide whether further and other security might not have been required under Equity Rule 93, or otherwise, as a condition of continuing the injunction after final judgment. What we determine is that this undertaking was authorized and given in pursuance of § 718, Rev. Stat., and should be construed accordingly. The District Court of Appeals should have sustained the order of the Supreme Court of the District, declining to assess any damages on the bond, except for the period from the time the bond was approved until March 10, 1903, the date of the decree in the court of original jurisdiction. The judgment of the Court of Appeals giving damages for the entire period of the litigation and until the legal rate of postage was paid by appellants should be modified so as to include only damages for the period covered by the restraining order, as above stated, and, as so modified, Affirmed, costs in this court to be equally divided. NOTES [1] Original docket title: Houghton et al. v. George B. Cortelyou, Postmaster General. By order of the court George Von L. Meyer, Postmaster General, was substituted as appellee.	{ "pile_set_name": "FreeLaw" }
201 F.2d 163 SCOTTISH UNION & NATIONAL INS. CO.v.BEJCY et al. No. 11576. United States Court of Appeals Sixth Circuit. January 23, 1953. Edward P. Frohlich, Detroit, Mich., Howard J. Ellis, Detroit, Mich., on brief, for appellant. Robert A. Sullivan, Detroit, Mich., Wilber M. Brucker, Detroit, Mich., on brief; Clark, Klein, Brucker & Waples, Detroit, Mich., of counsel, for appellees. Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges. SIMONS, Chief Judge. 1 The appellant assails a judgment against it for a fire loss covered by its insurance policy and particularly the special and exemplary damages included in it because of its failure to pay. 2 The policy was issued on November 9, 1946 through the insurer's local agent, Schumann, covering household furniture at the home of the appellees, in the sum of $3,000.00. Subsequently, the furniture was moved to a storage warehouse and the agent notified of its removal. The appellees left for California by automobile on August 24, 1948 arriving there October 6, and on October 13 received word from the storage company that their furniture had been destroyed by fire on August 28th. They notified Schumann by letter on October 15th of the loss but were advised by the insurer, on October 25, 1948, that Schumann no longer represented the insurance company and that it did not know of the loss until receipt of the October 15th letter. The appellees notified the insurer directly of the loss, on November 30th. The insurer referred the matter to its representative in Detroit who instituted an investigation and by letter of December 10th denied liability and returned the unearned premium to the appellees. Schumann had been advised by the company in 1947 that it would not accept any risks in the location of the storage company. 3 The appellees instituted suit in July, 1949, seeking recovery of the face amount of the policy and in addition special damages for mental anguish, medical expenses, rent of a furnished apartment, financing charges on money borrowed to purchase new furniture, loss of wages, illness, including ulcers, and loss of a down payment on the purchase of a new house. Overruling motions to dismiss and to strike the ad damnum clause from the complaint, the court submitted to the jury the issue as to special damages in excess of the limits of the contract. A verdict for $7,500 and judgment thereon followed. 4 A number of issues may be summarily disposed of. The first relates to jurisdiction. The coverage of the policy being in the sum of $3,000, the appellants contend that the court was without jurisdiction by virtue of Title 28 U.S.C.A. § 1332, which limits federal jurisdiction to cases where the amount in controversy exceeds $3,000, exclusive of interest and costs. The rule, however, is that the sum claimed by the plaintiff controls, if the claim is made in good faith, and it must appear to a legal certainty that the claim is for less than the jurisdictional amount to justify dismissal, St. Paul Mercury Indemnity Company v. Red Cab Company, 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845. The appellees had, in good faith, reasonable expectation for recovery of special damages under Michigan law and the validity of such expectation could not be determined from the pleadings nor until after trial and review. The court was not in error in taking jurisdiction of their claim. 5 Another issue raised by the appellants is that the provisions of the policy, requiring the insured to render sworn proof of loss within sixty days after it occurred, were not complied with and the appellees were, therefore, barred from recovery. The law in Michigan is settled that when an insurance company denies liability for reasons other than imperfect compliance with the proof of loss provision it is estopped from objecting to its sufficiency. Lum v. United States Fire Insurance Company, 104 Mich. 397, 62 N.W. 562; Crystal Ice Company v. United Surety Company, 159 Mich. 102, 123 N.W. 619. The insured submitted to the insurer all of the information it had of the loss and payment was denied on the ground that Schumann's agency had been terminated and the furniture removed to the storage warehouse. Proof of loss was furnished within the sixty day period because under Michigan law that period does not begin to run until the insured has knowledge of the loss, Rogers v. Great Northern Life Insurance Company, 284 Mich. 660, 667, 279 N.W. 906. When an insured notified the company of a loss, the company makes an investigation and then denies liability on the grounds other than failure to file written proofs of loss, the proof of loss provision is waived and is no longer a condition precedent to the beginning of suit, Rood v. National Casualty Co., 296 Mich. 530, 537, 296 N.W. 672; Rogers v. Great Northern Life Insurance Company, supra; First State Savings Bank of Croswell v. National Fire Insurance Company, 244 Mich. 668, 671, 222 N.W. 116. 6 The remaining and principal issue is whether special damages were recoverable because arising naturally from the breach or within the contemplation of the parties at the time they entered into the contract. Michigan has no statute such as that in Tennessee which we considered in Niagara Fire Insurance Company v. Bryan & Hewgley, 6 Cir., 195 F.2d 154. There are similar statutes in Texas, Northwestern Life Insurance Company v. Sturdivant, 24 Tex.Civ.App. 331, 59 S.W. 61, in Iowa, Iowa Life Insurance Company v. Lewis, 187 U.S. 335, 23 S.Ct. 126, 47 L.Ed. 204, and other states. Where such provisions exist, they are held to be penal and to be strictly construed. It has been held in Southern Surety Company v. Motlow, 6 Cir., 61 F.2d 464 that an insurance company has a right to refuse to pay a claim so long as it has reasonable ground to believe that it has a meritorious defense and said in Kendrick-Roan Grain Elevator & Company v. Weaver, 128 Tenn. 609, 635, 163 S.W. 814, 821, that such statutes do "not penalize insurance companies for defending suits brought against them, even though they should ultimately lose." The inference is inescapable that statutory provisions for special damages are in derogation of the common law, that judge-made law is equally a departure therefrom, and that both must be strictly construed, if a contractual limit is not to control recovery. 7 The appellees rely mainly upon Miholevich v. Midwest Mutual Auto Insurance Company, 261 Mich. 495, 246 N.W. 202, 86 A.L.R. 633. The reasoning in that case invites analysis and its facts challenge comparison with those in the case at bar. There, the insurer had issued a liability policy protecting the owner of an automobile against actions arising out of an automobile collision. A judgment was rendered against the named insured within the limits of the policy while he was represented by the insurer. The insurer paid the judgment in full but not until after the insured had been confined in jail at the instance of his judgment creditor, by virtue of a body execution. The insurer admitted that it had willfully neglected to satisfy the judgment and it was conceded that the insured had no means with which to satisfy it. The insured, after his release, brought suit for breach of contract, claiming damages for his arrest and imprisonment, and obtained judgment. 8 The Michigan Supreme Court affirmed. It recognized, however, that under Michigan law, Clark v. Craig, 29 Mich. 398, 402, that for mere delay in payment, interest is, in law, regarded as a sufficient compensation and that this is the general rule, Alderton v. Williams, 139 Mich. 296, 300, 102 N.W. 753. It reasoned, however, that the coverage of the policy in that case was for liability and not indemnity, that when the judgment was recovered against the insured, the liability to satisfy it was imposed upon him by law. If unable to pay it, the plaintiff in the action had the right to, and did, resort to a body execution in an effort to enforce payment, that when the judgment was recovered against the insured, the amount thereof became due and payable and it was the legal duty of the company to pay it. It applied the test of Frederick v. Hillebrand, 199 Mich. 333, 341, 165 N.W. 810, 812, where it was said: "The damage which a party ought to receive in respect to such breach of contract may be said to be such as may fairly and reasonably be considered either as arising naturally — that is, according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it." 9 The distinction drawn by the court between liability and indemnity is not irrelevant. Miholevich was insured against liability for his own negligence and a judgment was recovered against him. Under Michigan law, the judgment could be enforced by a body execution, as it was. This may reasonably be said to be within the contemplation of parties to an automobile collision policy and what followed to be "in the usual course of things" if the insurer fails to pay and the insured cannot. Delay in satisfying the judgment was concededly willful. 10 Here, is presented a mere controversy in respect to indemnity for loss of property consumed by fire. The limit of liability is fixed in the contract. Denial of liability is not clearly frivolous nor willful. No judgment is extant against the insured, which the insurer was obligated to pay. While there is evidence that the insured became ill, suffered loss of time and money, incurred medical expenses, and suffered mental anguish, all in point of time after denial of liability, there is no proof that these injuries are the natural or usual result of the failure of an insurer to carry out the obligations of its contract. Their causal relation to the breach is purely speculative. Certainly, there is nothing in the record to show that the insurer knew, or should have known, that the appellees would store their furniture and go to California, that they would become ill, suffer from ulcers, borrow money, or make a payment on a house. We know of nothing in the doctrine of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, requiring us, in ascertaining State law, to extend a local judicial doctrine to circumstances far removed from those to which it has been applied and based upon reasoning not clearly applicable to facts here involved. To extend the coverage of an ordinary fire insurance policy and so to enlarge the hazard which an insurer assumes that everything injurious, which may follow in point of time a failure to pay a loss, would result in so great an increase in the cost of insurance as to make protection unavailable to most persons, and render actuarial studies a useless guide. 11 The court was in error in submitting the issue of special damages to the jury upon the facts of record. The judgment must be set aside. The cause will be remanded for the entry of a judgment in the sum of $3,000, with interest @ 5% from November 30, 1948 to the date of payment, unless the appellees shall file within twenty days a remittitur of such part of the judgment as exceeds $3,000, American Radiator Company v. Foster, 6 Cir., 98 F.2d 135, 138. Costs will be recovered by the appellant. 12 Reversed and remanded for further proceedings consistent herewith.	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-17-00478-CV In re Volkswagen Clean Diesel Litigation: Texas Clean Air Act Enforcement Cases ORIGINAL PROCEEDING FROM TRAVIS COUNTY OPINION The State seeks mandamus relief from the MDL pre-trial court’s refusal to abate eighteen later-filed cases involving the State’s and various counties’ enforcement of the Texas Clean Air Act against Volkswagen.1 The principal issue in this mandamus proceeding—one of first impression—is whether, under this unique factual and procedural posture, the common-law doctrine of dominant jurisdiction requires that the counties’ later-filed enforcement suits, pending in the MDL, be abated until resolution of the State’s enforcement suit. Because we conclude that they must be abated, as explained below, we will conditionally grant the State’s petition for writ of mandamus. Invoking the doctrine of dominant jurisdiction, the State asserts that it is entitled to mandamus relief ordering the pretrial court to abate the later-filing counties’ suits because the State’s 1 The State included this request for mandamus relief in In re Volkswagen Clean Diesel Litigation: Texas Clean Air Act Enforcement Cases, our cause number 03-16-000718-CV. On our own motion, we severed the State’s petition for writ of mandamus into a separate cause, No. 03-17- 000478-CV. The facts and statutory scheme relevant to this original proceeding are the same as those set forth in our opinion issued today in In re Volkswagen Clean Diesel Litig.: Tex. Clean Air Act Enf’t Cases, No. 03-16-000718-CV (Tex. App.—Austin July 28, 2017, no pet. h.). enforcement suit against Volkswagen was filed before the later-filing counties’ enforcement suits against Volkswagen. We agree. “In instances where inherently interrelated suits are pending in two counties, and venue is proper in either county, the court in which suit was first filed acquires dominant jurisdiction. In these circumstances, the general rule is that the court in the second action must abate the suit.”2 If the trial court in the second action—here, the MDL pretrial court acting, as it were, on behalf of the courts in which the later-filing counties brought suit—abuses its discretion by not abating the action, no additional showing is required for mandamus relief.3 There is no dispute that the State’s TCAA-enforcement action against Volkswagen was filed first,4 that venue is proper in each of the counties where the respective cases were filed,5 or that the lawsuits are inherently interrelated.6 Nor do the later-filing counties suggest that any exceptions to dominant jurisdiction apply here.7 Instead, the later-filing counties argue that the pretrial court did not abuse its discretion by denying abatement here because the statutory MDL 2 In re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 321 (Tex. 2016) (citing In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 294 (Tex. 2016) (orig. proceeding); Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988)). 3 Id. (citing J.B. Hunt, 492 S.W.3d at 299–300). 4 See id. at 323 (determining chronological order of suits). 5 See Tex. Water Code § 7.105(c) (“The suit may be brought in Travis County, in the county in which the defendant resides, or in the county in which the violation or threat of violation occurs.”); Red Dot, 504 S.W.3d at 322 (determining whether venue was proper in counties where inherently interrelated suits were filed). 6 See Red Dot, 504 S.W.3d at 322 (lawsuits must be “inherently interrelated”); J.B. Hunt, 492 S.W.3d at 294; Wyatt, 760 S.W.2d at 248. 7 See J.B. Hunt, 495 S.W.3d at 294 (estoppel and lack of intent to prosecute); Perry v. Del Rio, 66 S.W.3d 239, 252–53 (Tex. 2001) (lack of necessary parties). 2 scheme has somehow displaced the common-law doctrine of dominant jurisdiction. While this argument may be up for debate in a situation where the dominant-jurisdiction issue arises in connection with more typical MDL cases—i.e., cases where claimants seek recovery of their own separate and individual injuries—in the unique circumstance of the statutory enforcement claims asserted here, we hold that the doctrine of dominant jurisdiction controls. “‘[S]tatutes can modify common law rules, but before we construe one to do so, we must look carefully to be sure that was what the Legislature intended.’”8 In the MDL statute, the Legislature created a system where civil cases that “involv[e] one or more common questions of fact” can be transferred to a pretrial court for “consolidated or coordinated pretrial proceedings” if the transfer will “be for the convenience of the parties and witnesses” and “promote the just and efficient conduct of the actions.”9 The MDL process is a statutory tool of economy intended to coordinate or consolidate the pretrial proceedings in pending cases that share underlying questions of fact, but where the claimants each seek recovery for their own injuries and where, ultimately, the individual cases will be remanded for separate trials. The doctrine of dominant jurisdiction, by contrast, applies where cases are inherently interrelated because they “involv[e] the same parties and the same controversy,” and requires that the later-filed cases “be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement.”10 “The 8 Dugger v. Arredondo, 408 S.W.3d 825, 828 (Tex. 2013) (quoting Energy Serv. Co. of Bowie v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194 (Tex. 2007)). 9 Tex. Gov’t Code § 74.162. 10 Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (emphasis added); see Warren v. Weiner, 462 S.W.3d 140, 144–45 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Curtis for same proposition); Lopez v. Texas Workers’ Comp. Ins. Fund, 11 S.W.3d 490, 493 (Tex. 3 jurisprudential reason for the [dominant-jurisdiction] rule is that once a matter is before a court of competent jurisdiction, ‘its action must necessarily be exclusive’ because it is ‘impossible that two courts can, at the same time, possess the power to make a final determination of the same controversy between the same parties.’”11 Given the unique circumstances we have before us—i.e., where the State’s and respective counties’ cases all seek to enforce the same environmental laws by imposing penalties on the same parties for the same violations—we cannot say that the Legislature intended for the MDL statute to modify or create an exception to the common-law rule of dominant jurisdiction.12 The later-filing counties argue that, even if dominant jurisdiction attaches to the State’s case, the abatement issue can be revisited if necessary when the civil-penalty actions are remanded for their respective trials and, relatedly, that mandamus review is unwarranted here because neither the State nor the legal system will suffer any harm if the later-filing counties are allowed to participate in the coordinated pretrial proceedings in the MDL court. Because the pretrial court’s orders are binding in the trial court after remand, however, this “revisiting” could only happen if the pretrial court decided to rehear an issue it had already decided.13 But even assuming that this could or would happen, the Texas Supreme Court has declared that once a relator has App.—Austin 2000, pet. denied) (same); see also J.B. Hunt, 492 S.W.3d at 295 n.21 (referencing Curtis’s “same parties and same controversy” language in context of explaining that inherently interrelated cases are subject to abatement). 11 Perry v. Del Rio, 66 S.W.3d 239, 252 (quoting Cleveland, 285 S.W. at 1071). 12 See Dugger, 408 S.W.3d at 828. 13 See Tex. R. Jud. Admin. 13.8(b) (“Without the written concurrence of the pretrial court, the trial court cannot, over objection, vacate, set aside, or modify pretrial court orders . . . .”). 4 established that the doctrine of dominant jurisdiction applies—i.e., the relator’s suit was filed first in an appropriate venue, remains pending, and is inherently interrelated to the later-filed suit14—the trial court in the later-filed case must abate the later-filed case and abuses its discretion in failing to do so.15 Further, the supreme court’s decision in J.B. Hunt suggests that we may not delay here, whether to allow the dominant-jurisdiction issue to “ripen” or because the pretrial court could revisit the issue before remand. In J.B. Hunt, the supreme court overturned its prior decision holding that mandamus relief was not available unless the second-filed court “actively interferes with the exercise of jurisdiction” in the other court.16 Instead, the supreme court held that regardless of whether the second court is actively interfering with the dominant court, “a relator need only establish a trial court’s abuse of discretion to demonstrate entitlement to mandamus relief with regard to a plea in abatement in a dominant-jurisdiction case.”17 Several of the later-filing counties argue that the doctrine of dominant jurisdiction does not apply to their respective suits because their lawsuits were the first to include certain 14 See Red Dot, 504 S.W.3d at 324; J.B. Hunt, 492 S.W.3d at 298. 15 Red Dot, 504 S.W.3d at 323 (“In sum, the [first-filed] court acquired dominant jurisdiction, the [second-filed] court should have granted [relator]’s plea in abatement and abused its discretion in failing to do so, and [relator] is entitled to mandamus relief.”). 16 See J.B. Hunt, 492 S.W.3d at 298 (“Abor held that mandamus relief is unavailable to correct an erroneous denial of a plea in abatement where there is ‘no conflict of jurisdiction’—that is, there was no injunction or order in one court ‘which actively interferes with the exercise of jurisdiction’ in the other court.” (quoting Abor v. Black, 695 S.W.2d 564 (Tex. 1985)). 17 Id. at 300. 5 defendants that were not named in the State’s enforcement suits18 and, thus, that their cases should be considered the first-filed cases against the defendants not named in the State’s enforcement action. But the supreme court has rejected this argument, explaining that “[i]t is not required that the exact issues and all the parties be included in the first action before the second is filed, provided that the claim in the first suit may be amended to bring in all necessary and proper parties and issues.19 Here, nothing prevents the State from adding additional defendants to its enforcement action. Finally, we note that our decision here is not an assault on the MDL scheme, but rather is limited to the unique nature and procedural posture of the cases before us. Although fairly characterized as falling within the MDL statute’s broad scope of sharing common questions of fact, the cases here are also inherently interrelated, and thus subject to the dominant-jurisdiction doctrine, because the later-filed suits all seek to recover civil penalties from the same TCAA violators for the same TCAA violations as does the State’s case.20 Put another way, these TCAA enforcement actions differ from the typical MDL cases in that each local-government action seeks, by definition, to 18 The counties asserting this argument are Bexar, Brazos, Denton, Jefferson, Lubbock, Nueces, Parker, and Taylor counties. These newly named defendants include Volkswagen Aktiengesellschaft; Volkswagen Group of America Chattanooga Operations, LLC; Audi Aktiengesellschaft; Dr. Ing H.c.F. Porsche Aktiengesellschaft; Porsche Cars of North America, Inc.; Robert Bosch, LLC; and Robert Bosch GmbH. 19 Wyatt, 760 S.W.2d at 247. 20 See id. (“In determining whether an inherent interrelationship exists, courts should be guided by the rule governing persons to be joined if feasible and the compulsory counterclaim rule.” (citing Tex. R. Civ. P. 39, 97(a)). The cases here meet both rules because, as explained, the counties’ claims are, with the exception of the geographic restriction, identical to the State’s claims and because the TCAA makes TCEQ (i.e., the State) a necessary and indispensable part to all local- government suits. See Tex. Water Code § 7.353 (“In a suit brought by a local government under this subchapter, the commission is a necessary and indispensable party.”). 6 punish the very same violations that the State could, using the same penalty and enforcement mechanism set forth in the TCAA and including the State as a necessary party as required by the TCAA. In sum, the Travis County District Court acquired dominant jurisdiction over TCAA violations in 252 Texas counties, including the county parties here, when the State filed its enforcement action in that court. The courts in which the later-filed cases were filed—and now the MDL pretrial court in their stead—should have granted the State’s plea in abatement and abated the later-filed cases until the State’s first-filed case is resolved. The MDL pretrial court abused its discretion in failing to do so.21 Accordingly, we conditionally grant mandamus relief and direct the pretrial court to grant the State’s pleas in abatement as to the later-filing counties. We are confident the pretrial court will promptly comply, and our writ will issue only if it does not. __________________________________________ Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Field and Bourland Filed: July 28, 2017 21 See Red Dot, 504 S.W.3d at 324. 7	{ "pile_set_name": "FreeLaw" }
812 So.2d 1205 (2001) Ex parte KMART CORPORATION. (In re Brenda Ridlespurge v. Kmart Corporation). 1000571. Supreme Court of Alabama. July 20, 2001. 1206 Brent A. Tyra and J. Wesley Hughes of Smith, Tyra & Thomas, L.L.C., Alabaster, for petitioner. Charles Y. Boyd of Rhea, Boyd, Rhea & Coggin, Gadsden, for respondent. HOUSTON, Justice. Brenda Ridlespurge sued her employer, Kmart Corporation, seeking workers' compensation benefits under the Workers' Compensation Act, Ala.Code 1975, § 25-5-1 et seq. ("the Act"), for injuries she alleges she sustained in the course of her employment. Ridlespurge, a manager of the electronics department at a Kmart store, was injured when a shelf holding a TV/ VCR combination fell and struck her right shoulder. Seven months after the incident, Ridlespurge sought treatment for pain in her neck and right shoulder. Although doctors performed three surgeries on her right shoulder, the pain persisted. She was ultimately diagnosed as having fibromyalgia, an affliction in which inflammation of the muscles and the fibrous covering of the muscles causes chronic pain. Approximately one year and seven months after the incident at Kmart, Ridlespurge for the first time sought treatment for pain in her left shoulder and lower back, which she alleged was also caused by her work-related injury. The trial court held that Ridlespurge's fibromyalgia and the injury to her left shoulder and back were not compensable, but that the injury to her right shoulder was, and it assigned a 40% loss of earning capacity to that injury. To support its judgment, the trial court made the following factual findings: (1) that Ridlespurge's fibromyalgia did not result wholly or partially from her work-related injury, but, rather, was attributable to the emotional stress of the filing of a criminal indictment against Ridlespurge and her husband[1]; (2) 1207 that Ridlespurge had sustained a 40% loss of earning capacity as a result of the injury to her right shoulder; and (3) that the pain in Ridlespurge's left shoulder and lower back was not attributable to her on-the-job injury. The Court of Civil Appeals affirmed the trial court's judgment insofar as the trial court held that the injury to Ridlespurge's back and left shoulder was not compensable and that the injury to her right shoulder was compensable; it reversed the trial court's judgment insofar as it held that her fibromyalgia was not a compensable injury and insofar as it determined she had suffered a 40% loss of earning capacity from the injury to her right shoulder. Ridlespurge v. Kmart Corp., 812 So.2d 1197 (Ala. Civ.App.2000). Kmart petitioned this Court for certiorari review of the Court of Civil Appeals' judgment insofar as it held that the fibromyalgia was compensable and that Ridlespurge was totally and permanently disabled. We granted the petition. We reverse and remand. This appeal presents the following issues: (1) Did the Court of Civil Appeals, in determining that Ridlespurge's fibromyalgia was a compensable injury, improperly substitute its judgment for that of the trial court? and (2) Did the Court of Civil Appeals improperly substitute its judgment for that of the trial court in determining that Ridlespurge was permanently and totally disabled? Standard of Review Section 25-5-81(e)(2), Ala.Code 1975, a part of the Act, states that if an appellate court is reviewing "pure findings of fact" in a workers' compensation case, "the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989), quoted in Ex parte Northam, 689 So.2d 854, 856 (Ala.1996); see Ala. Code 1975, § 12-21-12(d). As this Court explained in Ex parte Golden Poultry Co., Inc., 772 So.2d 1175 (Ala.2000), the Court of Civil Appeals in a workers' compensation case "is authorized to determine whether the trial court's decision is supported by sufficient evidence [i.e., substantial evidence], but it is not authorized to independently weigh the evidence." 772 So.2d at 1177 (citing Ex parte Alabama Ins. Guar. Ass'n, 667 So.2d 97, 99 (Ala. 1995)) (emphasis and bracketed language added). Compensability of Fibromyalgia Condition Kmart argues that the Court of Civil Appeals' reversal of that portion of the trial court's judgment holding that Ridlespurge's fibromyalgia was not a compensable condition under the Act was improper. Kmart argues that in reversing the trial court's decision the Court of Civil Appeals ignored the evidence in the record that supported that decision. In its order, the trial court wrote: "[T]here is insufficient evidence to conclude that the fibromyalgia condition, if it exists at all, was either caused or contributed to ... by [Ridlespurge's] on-the-job injury. In fact, the substantial evidence leads this Court to conclude that the fibromyalgia condition developed as a result of the stress associated with the criminal charges filed against [Ridlespurge] and her husband. Accordingly, the Court concludes that the fibromyalgia condition is not a compensable 1208 condition under the Workers' Compensation Act and the Defendant is not responsible for providing workers' compensation benefits, including medical benefits to the Plaintiff for the treatment of said condition." The Court of Civil Appeals stated that "the record does not contain substantial evidence to support the trial court's determination that Ridlespurge's fibromyalgia is not compensable under the Act." Ridlespurge, 812 So.2d at 1201. We disagree. Section 25-5-51, Ala.Code 1975, a part of the Act, provides that a compensable injury is one "caused by an accident arising out of and in the course of [the employee's] employment." That language requires a causal connection between the injury and the employment. Ex parte Trinity Indus., Inc., 680 So.2d 262, 267-68 (Ala.1996). The phrase "in the course of" refers to the time, place, and circumstances under which the accident occurred. Id. In cases involving a sudden and traumatic event, such as the one here, an employee must produce substantial evidence tending to show that the accident occurred and also that the accident caused or was a contributing cause of the injury for which benefits are being sought. Id. at 266 n. 3. The record contains substantial evidence to support the trial court's finding that Ridlespurge's fibromyalgia is not a compensable injury under the Act. Dr. Douglas Bell, the doctor who diagnosed Ridlespurge's fibromyalgia, stated in his deposition that the impact of the TV/VCR combination that fell on Ridlespurge's right shoulder was causally related to her fibromyalgia.[2] Dr. Bell, however, also testified that emotional stressors can be a contributing cause of fibromyalgia[3] and that a criminal indictment could be an emotional stressor that would trigger the condition.[4] Dr. Bell admitted in his deposition, however, that when he was treating Ridlespurge he was unaware of Ridlespurge's criminal indictment and that the 1209 existence of the indictment was not a factor in his diagnosis.[5] Dr. Ronald Rivard, who performed an independent medical examination of Ridlespurge, testified by deposition that fibromyalgia is a painful condition and that its symptoms are "vague." (R. 181.) He stated that the condition is "recognized by some [medical professionals], not recognized by others." (R. 182.) Finally, Claude Franklin Peacock, Ridlespurge's vocational expert, agreed at trial that fibromyalgia is a condition the existence of which is disputed and that stressful events can be a contributing cause of the condition.[6] Clearly, the record contains substantial evidence to support the trial court's finding that Ridlespurge's fibromyalgia is not compensable under the Act. The Court of Civil Appeals' reversal of that portion of the trial court's judgment to the compensability of Ridlespurge's fibromyalgia was improper. Thus, we reverse the judgment of the Court of Civil Appeals as to this issue. Loss in Earning Capacity Kmart contends that the Court of Civil Appeals' reversal of that portion of the trial court's judgment holding that Ridlespurge had suffered a 40% loss in earning capacity was improper. The Court of Civil Appeals wrote: "[T]he record does not contain substantial evidence to support the trial court's finding that Ridlespurge was not permanently and totally disabled." Ridlespurge, 812 So.2d at 1203. In its order, the trial court stated: "While the Court questions the degree and source of the Plaintiffs pain and discomfort[,] the Court finds that the Plaintiff has sustained a loss of earning capacity as a result of the reported injury and subsequent surgical procedures to the Plaintiffs right shoulder. The Court has considered the testimony of both the Plaintiffs and [the] Defendant's vocational experts. The Court finds that the Plaintiffs expert's opinion is too high and the Defendant's is too low. Instead, the Court finds that the Plaintiff has sustained a loss of earning capacity of 40 percent, for which the Plaintiff is entitled to permanent partial benefits." (Emphasis added.) The evidence regarding Ridlespurge's loss of earning capacity indicates as follows: Dr. Rivard testified in his deposition that Ridlespurge had suffered a 10% impairment 1210 "of the whole person."[7] Dr. James Flanagan, a surgeon who performed two surgeries on Ridlespurge's right shoulder, testified in his deposition that although he had not assigned an impairment rating to Ridlespurge, he agreed with Rivard's conclusions about her loss of earning capacity.[8] Ridlespurge's vocational expert Claude Peacock testified at trial that when he first examined Ridlespurge, he thought she was "totally vocationally disabled."[9] However, Mr. Peacock later testified that he assigned Ridlespurge a 35% less of earning capacity when he evaluated her ability to work.[10] Finally, Ridlespurge testified as to her condition and her ability to work. (R. 20-24.) The trial court's findings, if supported by the evidence, are conclusive. Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000). It is well established that in workers' compensation cases a trial court has considerable discretion in determining an employee's loss of earning capacity. Ex parte Alabama Ins. Guaranty Ass'n, 667 So.2d 97, 100 (Ala.1995). Further, a trial court is not bound by the opinions of expert witnesses, even if the testimony of those witnesses is uncontroverted. Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala.1985). Our review of the record indicates that the testimony and the evidence presented at trial support the trial court's finding that Ridlespurge suffered a 40% loss in earning capacity as a result of the injury to her right shoulder. It is apparent from the order that the trial court focused on the opinions of the expert witnesses in ascertaining Ridlespurge's earning-capacity loss. The trial court's statement in its order that "[Mr. Peacock]'s opinion is too high" demonstrates that the trial court mistakenly relied on Mr. Peacock's 1211 initial assessment that Ridlespurge was totally vocationally disabled. However, as explained above, Mr. Peacock's opinion at trial was that Ridlespurge had suffered a loss of earning capacity in the range of 35%. Certainly, the trial court's finding of a 40% loss of earning capacity is within the "range of 35%." Furthermore, the trial court had the benefit of observing Ridlespurge as she testified regarding her ability to perform certain work-related tasks. Thus, we conclude that the trial court's finding that Ridlespurge suffered a 40% earning loss was supported by substantial evidence. We hold that the Court of Civil Appeals improperly substituted its judgment for the trial court's judgment in this respect, and we reverse that portion of its judgment. Conclusion For the above reasons, we reverse the judgment of the Court of Civil Appeals insofar as it relates to the compensability of Ridlespurge's fibromyalgia and insofar as it determined that Ridlespurge was "permanently and totally disabled" because of her right-shoulder injury. We remand this case to the Court of Civil Appeals for that court to enter an order consistent with this opinion. REVERSED AND REMANDED. SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur. MOORE, C.J., recuses himself.[] NOTES [1] On December 15, 1997, a grand jury in Etowah County indicted Ridlespurge and her husband for "trafficking in methamphetamine and unlawful possession of controlled substances." (R. at 379-80.) Ridlespurge did not inform her doctors of the indictment during her treatment. [2] In his deposition, Dr. Bell testified: "Q: [Ridlespurge's counsel] If I said, `Can you state that to a reasonable medical certainty' would be the key words ". . . . "A: [Dr. Bell] That the whole sequence of events is reasonable, you know, it's the injury that caused the fibromyalgia. Is that what you're asking? "Q: Yes. "A: Again, you know, based on the information that I have available, I think that it's a reasonable conclusion to draw that her fibromyalgia is related to the injury." (R. 337-38.) [3] In his deposition, Dr. Bell testified: "Q: [Ridlespurge's counsel] Tell me what fibromyalgia is. "A: [Dr. Bell] Fibromyalgia is a syndrome where there is a lot of complaints, but typically people complain of defuse [sic] pain, complain of flu-like symptoms. They typically have a sleep disorder, lack of sleep. They have tender spots that when pushed on they will be more sensitive than other places, and they have exercise intolerance, typically. And a lot of times there can be a stressor of some kind, too.... "Q: What do you mean by stressor of some kind? "A: You know, emotional or physical stress can make it worse." (R. 317-18.) [4] In his deposition, Dr. Bell testified: "Q: Is [a criminal indictment] a type of event that could be a stressor to a patient that could trigger this problem? "A: Without knowing the specifics, I would say yes. "Q: The more severe the charge the likelier the increased stress? "A: Again, you know, I would say, you knowyou knowsome sort of criminal charge or difficulty would certainly be a stress and I think it certainly would qualify." (R. 342.) [5] In his deposition, Dr. Bell testified: "Q: [Ridlespurge's counsel] Now, during your course of treatment of Mrs. "A: [Dr. Bell] No, sir, I did not. "Q: Were you aware of any pending criminal charges that have been filed "A: No, sir. "Q: against Mrs. Ridlespurge or her husband? "A: None was mentioned. None was asked about." (R. 341-42.) [6] Mr. Peacock's testimony at trial reads: "Q: [Ridlespurge's counsel] Now, as far as the fibromyalgia diagnosis, is it your understanding that these pain complaints are coming from that fibromyalgia condition? "A: [Mr. Peacock] Right. ". . . . "Q: Are you aware that Dr. Rivard testified that that conditionthat some doctors recognize it and some don't? "A: That's true. "Q: It's very questionable, very controversial rather? "A: Depending on the doctors, that's true. "Q: Were you aware that fibromyalgia can be caused by stressful events? "A: It's exacerbated, I think, more than caused, based on my information. "Q: Can bring itcan cause it to come on? "A: True, and be much worse for the individual." (R. 85-86.)(Emphasis added.) [7] Plaintiff's Exhibit 1 to Dr. Rivard's deposition includes a September 24, 1998, letter to Dr. Flanagan from Dr. Rivard, in which he writes: "my estimation is that she has an impairment of 16% of the right upper extremity [right shoulder], which, in turn, corresponds to an impairment of 10% of the whole person." (Emphasis added.) [8] Dr. Flanagan's testimony, in his first deposition, reads: "Q: [Ridlespurge's counsel] And have you had an occasion to place a limitation or an impairment ratingmedical impairment rating on her right shoulder? "A: [Dr. Flanagan] To the best of my recollection, I have not assigned any impairment rating." (R. 252.) In his second deposition, Dr. Flanagan testified as follows: "Q: [Ridlespurge's counsel] As I understand your testimony, you agreed with the findings of Dr. Rivard with regard to his functional capacity evaluation; is that correct? "A: [Dr. Flanagan] Yes sir." (R. 300-01.) [9] Mr. Peacock's testimony at trial reads: "Q: [Ridlespurge's counsel] Okay. Now, based on your testing, your review of the medical evidence, your experience and training and your review and discussions and interview with Mrs. Ridlespurge, did you form an opinion as to her vocational disability? "A: [Mr. Peacock] I did. "Q: All right. And what is that opinion, please, Sir? "A: Based on the information provided me in the interview I feel that she was totally, or a hundred percent vocationally disabled at the time that I saw her [on January 27, 1999]." (R. 65.)(Emphasis added.) [10] Mr. Peacock's testimony at trial reads: "Q: [Ridlespurge's counsel] [D]o you have an opinion as to what [Ridlespurge's] vocational loss would be? ". . . . "A: [Mr. Peacock] ... [T]he capacity to function in an open market so you're still going to be looking, probably in the 35% range just as a range of measurement." (R. 85.)(Emphasis added.) [] Chief Justice Moore was the trial judge in this case.	{ "pile_set_name": "FreeLaw" }
53 Mich. App. 192 (1974) 218 N.W.2d 813 DEPARTMENT OF NATURAL RESOURCES v. SEAMAN Docket Nos. 16365-16367. Michigan Court of Appeals. Decided May 2, 1974. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ronald R. Tyler, Prosecuting Attorney, for plaintiff. Nino E. Green, for defendants. 194 Before: BRONSON, P.J., and QUINN and VAN VALKENBURG,[] JJ. VAN VALKENBURG, J. Defendants, commercial fishermen, appeal from three condemnation and confiscation orders entered by the Iosco County circuit court pursuant to complaints brought on behalf of the Department of Natural Resources. The complaints involve three separate acts of illegal fishing undertaken by defendants. The matters were consolidated in circuit court for the convenience of all concerned. The first complaint involved the May 11, 1972 taking by defendants of some eight boxes of chubs from the waters of Lake Huron on May 11, 1972 by means of some 15,000 feet of small-mesh gill nets. The state sought to condemn and confiscate the gill nets used. The second complaint involved the September 29, 1972 taking by defendants of yellow perch from the waters of Zone 19 of Lake Huron by means of some 6000 feet of small-mesh gill nets. The state sought to condemn and confiscate the gill nets used. The third complaint involved the October 10, 1972 taking of some three boxes of yellow perch and one-half box of menominee from the waters of Zone 19 of Lake Huron by means of some 4500 feet of small-mesh gill nets. The state sought to condemn and confiscate the boat used to catch said fish, including the paraphernalia used thereon, the nets used, the boxes of fish and the marker buoys. The state argued, among other things, that chubs are a protected species, that yellow perch are a protected species except in Zone 22 of Lake 195 Huron and that defendants were not licensed to use small-mesh gill nets. Defendants argued that they were licensed to use small-mesh gill nets pursuant to their 1971 license, that they properly relied upon the 1971 license since they had protested the changes on the 1972 license and had not been afforded the statutorily mandated hearing on the 1972 license and that regulations as promulgated did not bar the use of small-mesh gill nets. On appeal defendants first argue that the Legislature unconstitutionally delegated its legislative authority to an administrative agency. The major thrust of defendants' attack is centered upon the language of MCLA 308.201; MSA 13.1568(1), which provides that the Conservation Commission (now the Commission of Natural Resources MCLA 16.350 et seq.; MSA 3.29[250] et seq.) shall have the power to suspend, abridge or modify the provisions of any statute or law of this state governing commercial fishing. Unfortunately, the thrust of this argument misses the mark, since the regulations relied upon by the state were promulgated pursuant to MCLA 308.1b; MSA 13.1491(2). As to the propriety of MCLA 308.1b, supra, we do not find the language used is such as to amount to an unbridled transfer of discretionary and rulemaking power by the Legislature to the administrative body. Subsection (1) of MCLA 308.1b, supra, clearly defines that the Director of Conservation (now the Commission of Natural Resources): "when in his [its] opinion it is necessary for the better protection, preservation, management, harvesting and utilization of the fisheries in the waters described in section 1 may limit the number of fishing licenses to be issued under the provisions of this act and fix and determine the qualifications of such licensees." Subsection 2 further provides that: 196 "In addition to the requirements of this act and rules promulgated pursuant to this act, the license issued by the director of conservation may contain provisions: "(a) Fixing the amount of fish to be taken by species and kind. "(b) Designating the areas in which the licensee shall be permitted to fish. "(c) Specifying the season when and the depths where the licensee may conduct his commercial fishing operations. "(d) Specifying the methods and gear which the licensee shall use. "(e) Specifying other conditions, terms and restrictions which are deemed to be necessary in carrying out the provisions of this act, including but not limited to the right to inspect the licensee's fishing operations in the waters, on board or ashore." MCLA 308.1e; MSA 13.1491(5) specifically provides that rules may be promulgated as necessary to carry out the provision of MCLA 308.1b; supra. As stated by the Supreme Court in Roberts Tobacco Co v Department of Revenue, 322 Mich 519, 527-528; 34 NW2d 54, 58 (1948): "The rule is firmly established that the legislature may authorize the adoption by an administrative agency, charged with the administration of the provisions of a statute, of rules and regulations to carry out the purpose of the legislature as expressed by it. In Argo Oil Corporation v Atwood, 274 Mich 47 [264 NW 285 (1935)], it was said: "`It is too well settled to need the citation of supporting authorities that the legislature, within limits defined in the law, may confer authority on an administrative officer or board to make rules as to details, to find facts, and to exercise some discretion, in the administration of a statute'. "See, also, Warnshuis v State Board of Registration in Medicine, 285 Mich 699 [281 NW 410 (1938)]; Toole v Michigan State Board of Dentistry, 306 Mich 527 [11 197 NW2d 229 (1943)]; Ranke v Corporation & Securities Commission, 317 Mich 304 [26 NW2d 898 (1947)]." While it is equally well established that the Legislature cannot grant unbridled discretion to the administrative agency to promulgate rules, such is not the case here. Clearly the Legislature has limited the rule-making power of the Commission of Natural Resources to those areas where "it is necessary for the better protection, preservation, management, harvesting and utilization of the fisheries" in the described waters. Further, the Legislature defined the nature of additional requirements which could be imposed upon persons seeking commercial fishing licenses. We therefore find that MCLA 308.1b, supra, does not operate as an unconstitutional transfer by the Legislature of the legislative function. Defendants next urge that the "zone management" plan established by the commission in 1970-71 AACS R 299.883 and revised in supplement 71 of the AACS in 1972 exceeds the rule-making authority granted by the Legislature by MCLA 308.1b, supra, and MCLA 308.1e, supra. Quite apart from the possibility that the zone management plan might well fall within the scope of the general authority to promulgate rules to promote the better protection, preservation, etc. of the fisheries of the defined waters, the Legislature clearly delineated in subsection 2 of MCLA 308.1b, supra, that restriction may be placed upon the licenses of commercial fishermen with respect to the area in which the licensee shall be permitted to fish and the methods and gear the licensee shall use. Zone management is merely the means by which these considerations are effectuated. It is well established that the fish in the waters of this state are the property of the state, and the 198 taking of such fish is a privilege granted by the state. See MCLA 308.1; MSA 13.1491 and Aikens v Department of Conservation, 387 Mich 495; 198 NW2d 304 (1972). It is equally clear that the privilege of taking fish from the waters of this state for commercial purposes is lawful only to the extent that one has a license to undertake such an enterprise. MCLA 308.22; MSA 13.1513. The 1971 license upon which defendants rely authorized the use of two boats, the Suzanne and the Jerry W, for the purpose of commercial fishing. The license authorized the use by the Suzanne of 6000 feet of small-mesh (2-1/2" to 2-7/8") gill nets in Zone 22 only and 12,000 feet of large-mesh (7") gill nets with no zone restrictions. As to the vessel Jerry W, the license provided with respect to the kinds, size, and amount of gear that "only that gear authorized under vessel SUZANNE shall be used on the vessel JERRY W". There was the additional provision with respect to the Jerry W that: "This boat shall be used in conjunction with fishing activities authorized for the vessel SUZANNE." The license thus made the type and use of gear on the Jerry W co-extensive with that authorized for the Suzanne. Since it is uncontroverted that all three instances involved the use of small-mesh gill nets in Zone 19, a use not authorized by the license, the fishing operation undertaken by defendants was clearly unlawful on that ground alone. Defendants' fishing activities being contrary to law within the meaning of MCLA 300.11; MSA 13.1221, the defendants' boat and gear and the unlawfully taken fish were properly subject to seizure pursuant to MCLA 300.12; MSA 13.1222 and condemnation and confiscation pursuant to MCLA 300.14; MSA 13.1224. Defendants also contend that the search and 199 seizure of their boat without a warrant on October 3, 1972 was unconstitutional. Quite apart from the fact that defendants never made the formal motion to suppress below necessary to properly preserve this issue for appellate review, it is clear that the contention is meritless. Since the officers who made the search had previously ascertained that the nets retrieved by the Jerry W were unlawfully placed in Zone 19 of Lake Huron, and since they observed defendants retrieve those nets, they had probable cause to believe that defendants' boat was being used for unlawful fishing. The officer therefore properly searched and seized the boat pursuant to the provisions of MCLA 300.12; MSA 13.1222, which specifically authorizes searches without a warrant if based upon probable cause to believe that a statutory violation has taken or is taking place. Affirmed. No costs, a public question being involved. All concurred. NOTES [] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.	{ "pile_set_name": "FreeLaw" }
185 Ga. App. 60 (1987) 363 S.E.2d 286 CITY OF LAGRANGE v. GEORGIA POWER COMPANY. 74861. Court of Appeals of Georgia. Decided November 5, 1987. Rehearing Denied November 24, 1987. James R. Lewis, L. Clifford Adams, Jr., for appellant. Robert P. Edwards, Jr., Charles F. Palmer, for appellee. SOGNIER, Judge. The City of LaGrange and Georgia Power Company filed a joint petition for a declaratory order with the Georgia Public Service Commission (PSC), to determine which had the right under the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et seq., to provide electric service to a new industrial customer. Upon stipulated facts, the PSC determined that the City did not have the exclusive right to provide such service, but that the customer should have the right to 61 choose from among the authorized suppliers. The superior court affirmed the PSC's order, and the City appeals. The record reveals that in an effort to attract new industry to the City, the Development Authority of LaGrange constructed a building in an industrial park on speculation. Temporary electric service to the site during construction was provided by the City on application of the contractor, and service was transferred to the Authority after completion of the shell. The building was purchased by a manufacturer of plastic bags, and electric service was again transferred, this time to the contractor hired by the purchaser to complete construction of the facility. When operational, the premises, located within an area annexed to the City after March 29, 1973, will have single-metered service and a connected load in excess of 900 kilowatts. Both appellant and appellee own lines and are authorized to provide service to the location. The Georgia Territorial Electric Service Act generally provides for assignment of electric suppliers by geographical location. However, OCGA § 46-3-8 (a) (4) provides in pertinent part that "[n]ot-withstanding any other provision of this part, but subject to subsections (b) and (c) of this Code section,... service to one or more new premises..., if utilized by one consumer and having single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater ..., may be extended and furnished, if chosen by the consumer ... [b]y any electric supplier owning lines in a municipality if the premises are located in a geographic area annexed in any manner to such municipality after March 29, 1973." Thus, subsection (a) of the statute gives "large load" consumers (such as the one in this case) the right to choose among the authorized suppliers of electric service. Subsection (b) of the statute, the "grandfather clause," provides, however, that, notwithstanding the customer choice provision, "every electric supplier shall have the exclusive right to continue serving any premises lawfully served by it on March 29, 1973, or thereafter lawfully served by it pursuant to this part...," thereby providing for an exception to the customer-choice provision when the customer's premises has been lawfully served previously by a provider pursuant to the Act. The City contends the trial court erred by affirming the PSC's order because, having lawfully provided service to the premises during construction, OCGA § 46-3-8 (b) granted to it the exclusive right to continue serving the premises. We do not agree. The City provided electric service to the temporary construction site in question here, a construction site which at that time did not qualify as a large load consumer; thus, no choice was involved in the selection of the provider of electric service to that site. The City now seeks to extend that temporary provision of electric service to the permanent premises 62 on the basis that it has been "grandfathered" into the exclusive right to provide such service by subsection (b). We are not persuaded by the City's interpretation of the statute, which would deprive certain large load consumers in situations such as the one here of their statutory right to choose a provider of electric service under subsection (a), thus eviscerating that entire subsection and the intention of the legislature in enacting it. Under the City's interpretation, customer choice would be eliminated whenever temporary service is provided to construction sites under other parts of the Act. The new large load customer here would be "locked in" to the choice made by the City a party not totally without self-interest in that it is also the beneficiary of this choice, since it is the supplier chosen. Thus, the evident purpose, and indeed the plain words of subsection (a) of OCGA § 46-3-8, would be rendered meaningless: there would be no customer choice. Our rejection of the City's interpretation of subsection (b) is further supported by an examination of subsection (f) of the statute, which, while not addressing itself at all to large load consumers, specifically provides that a supplier may furnish temporary or construction service to premises in some instances and yet not acquire the exclusive right to provide permanent service to the premises. Since subsection (f) is nowhere qualified as an exception to subsection (b), the interpretation urged by the City places the plain language of sub-section (f) in conflict with subsection (b). Such a result is not only anomalous, it is unnecessary. The PSC interpreted subsection (b) so as to harmonize all three subsections of the statute to provide a reasonable and sensible construction. Under the PSC's interpretation, the providing of temporary service to a construction site by one supplier of electric service does not foreclose the large load consumer from choosing another authorized supplier for the permanent service to the completed site. In this manner subsection (a) is given its plain and unambiguous meaning that large load customers may choose among the authorized electric suppliers; sub-section (b) continues to authorize every supplier who once furnishes permanent service to premises in accordance with the Act to have, notwithstanding any other provision, the exclusive right to continue serving those premises; and subsection (f), which simply has no bearing on this issue, remains viable according to its plain language in the situations in which it was intended to apply without any conflict with subsection (b). In interpreting OCGA § 46-3-8, it is our duty to consider the sub-sections in pari materia, and to reconcile them, if possible, so that they may be read as consistent and harmonious with one another. Board of Trustees v. Christy, 246 Ga. 553 (272 SE2d 288) (1980). The construction given the statute by the PSC is consistent with these 63 established principles of statutory construction. Moreover, the PSC, as the agency charged with oversight and supervision of electric power companies in this State, OCGA § 46-2-20 (a), including the enforcement and administration of the Georgia Territorial Electric Service Act, is entitled to great deference in its interpretation of the Act. "The administrative interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight. [Cits.]" Mason v. Svc. Loan &c. Co., 128 Ga. App. 828, 831 (198 SE2d 391) (1973). We find no merit in any argument that the Supreme Court's holding in City of Calhoun v. North Ga. Elec. &c. Corp., 233 Ga. 759 (213 SE2d 596) (1975) requires a different result. Although both City of Calhoun and the case sub judice involve the Georgia Territorial Electric Service Act, that is the only point of reference these cases have in common since City of Calhoun was concerned solely with a constitutional challenge to the Act, and does not suggest or intimate the validity of a different interpretation. Since we find that the PSC correctly interpreted the statute, the superior court did not err by affirming the PSC's order. Judgment affirmed. Birdsong, C. J., Deen, P. J., Carley, Pope and Benham, JJ., concur. McMurray, P. J., Banke, P. J., and Beasley, J., dissent. BEASLEY, Judge, dissenting. The PSC ruled that the city lawfully provided service initially to the site of the manufacturing plant under construction pursuant to the Act because at the time service was provided to the construction site the connected load was less than 900 kilowatts, "and thus service was provided by the assigned provider, the city. Thus, the question presented is whether an electric supplier who lawfully extends and furnishes electric service to a construction site at which a premises is to be constructed which, at the time of initial full operation, will require 900 kilowatts or greater, may preclude the operation of the `customer choice' provisions of [OCGA § 46-3-8 (a)] by the customer." The city contended that its initial providing of electric service to the construction site of the premises constituted service as contemplated by OCGA § 46-3-8 (b) and (f) so as to grant it the exclusive right to continue thereafter to serve the premises. Subsection (b) is the "grandfather" clause. Subsection (f) establishes that "[t]he time at which an electric supplier... shall be considered as having the right to extend and furnish... service to new premises shall be the time at which written application for temporary construction or permanent service is made to any electric supplier by the consumer utilizing such premises or the time at which construction of such premises is commenced, whichever first occurs. The location of a 64 premises for temporary construction service shall be deemed to be the same as the location of the premises which shall require permanent service after construction...." After noting that the Act empowered it to arbitrate disputes and, where there was no clear cut resolution, to resort to statutory construction and common sense application of the Act, the PSC concluded that "to allow the city's contention to prevail would emasculate the provisions of subsection (a)," and thus "a distinction should be drawn between temporary construction service and permanent service, for purposes of subsection (a) `customer choice' provisions ... By encouraging healthy competition between electric suppliers for large load customers, electric suppliers will strive to provide reliable electric service at the least cost to the consumer ... Therefore, in instances where a premises under construction takes temporary or construction service from an electric supplier lawfully authorized to provide that electric service and the premises, at initial full operations, will be utilized by one consumer and have single-metered service of 900 kilowatts or greater, the customer shall be entitled to select an electric supplier for permanent service pursuant to OCGA § 46-3-8 (a), notwithstanding the previous provision of temporary construction service by an electric supplier." (Indention omitted.) The city's argument is that the plain and unambiguous language of the Territorial Electric Service Act, specifically the "grandfather" provision of OCGA § 46-3-8 (b), compels the finding that it had the exclusive right to serve the consumer utilizing the premises from the time the city provided temporary construction service to the site. While the aims expressed by the PSC in its interpretation of the purposes of the Act may be desirable public policy, they are not in accord with the construction previously endorsed by our Supreme Court and stated in City of Calhoun v. North Ga. Elec. &c. Corp., 233 Ga. 759, 767-68 (5) (a) (213 SE2d 596) (1975), where the Act was unsuccessfully attacked as an unconstitutional restraint of trade. The Court recognized that "under the standards set forth in the Act, even though a particular area may be assigned to an electric supplier, other electric suppliers already serving customers in that area may continue to serve those customers as well as new customers located near their lines." It explained that the restriction on competition was valid because "unrestricted competition between electric suppliers could injure existing public service and otherwise adversely affect the public interest ... [t]o the extent the assignment of service areas under the Act restrains competition, the restraint is for the benefit of the public in minimization of duplication of facilities and prevention of other adverse economic and environmental effects." (Indention omitted.) Not only was the statutory interpretation reached by the PSC and affirmed by the superior court here inconsistent with the construction 65 of the Act delineated in City of Calhoun, supra, it was inappropriate. "`[W]here the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden' [cit.], the only exception being the case where an unequivocal meaning ascribes to the legislature an unreasonable or senseless intent." Taco Mac v. Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 539 (340 SE2d 922) (1986). Moreover, "statutes must not be interpreted to thwart the avowed purpose of the legislature." Hardison v. Booker, 179 Ga. App. 693, 696 (4) (347 SE2d 681) (1986). The legislative intent and policy is specifically declared within Section 2 (OCGA § 46-3-2) of the Territorial Electric Service Act, as the Supreme Court pointed out in City of Calhoun, supra at 761 (1). Its purposes include "the orderly furnishing of electric service and minimizing interference." City of Calhoun, supra at 765. "[The Act's stated] purposes are put into effect completely and thoroughly by other provisions. The Public Service Commission is delegated the authority only to apply the standards set forth in the Act, to make rules and regulations according to such standards and to administer them." City of Calhoun, supra at 769. Bearing in mind the goals of the Act, I conclude that the right of an over-900 kilowatt customer to choose its supplier is made subordinate to the right of an assigned electric service supplier to continue service once it has been lawfully extended and furnished under OCGA § 46-3-8 (f). While this may preclude some 900-plus kilowatt customers from choosing their suppliers, it results from following the Act's avowed purposes. Thus the strained distinction reached by the PSC between temporary and permanent service in attempting to nullify the specific exception to the "grandfather" provision of OCGA § 46-3-8 (b) exempted by subsection (f) is both unwarranted and unneeded. "`Service' means retail electric service and includes temporary or construction service as well as permanent service...." OCGA § 46-3-3 (9). It is undisputed that the city lawfully extended retail electric service to the premises in 1984 and has continuously provided service at all times relevant since then. "`Premises' means the building, structure or facility to which electricity is being or is to be furnished...." OCGA § 46-3-3 (6). In this case the premises is the building that was being constructed while electrical service was being furnished by the city. City of Marietta Bd. of Lights &c. v. Ga. Power Co., 176 Ga. App. 123 (335 SE2d 467) (1985). The 900-kilowatt "customer choice" exception of OCGA § 46-3-8 (a) is thus made specifically subject to the rights of the electric supplier first providing service to continue to serve the premises. The unavoidable effect of the Act is that customer choice is foreclosed once lawful service, including temporary construction service, has been 66 provided to the premises. I am authorized to state that Presiding Judge McMurray and Presiding Judge Banke join in this dissent.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 68495-7-1 Respondent, DIVISION ONE v. en en UNPUBLISHED OPINION PHILLIP LINCH SCHLOREDT, Appellant. FILED: September 30, 2013 Schindler, J. — When a court allows a defendant represented by counsel to file a motion pro se, no waiver of the right to counsel is necessary so long as the defendant does not assume core functions of counsel or has the assistance of experienced legal counsel. In this case, Phillip Linch Schloredt had the assistance of counsel and did not assume counsel's core functions when he filed his pro se motions for a new trial and arrest of judgment. In addition, Schloredt ultimately waived his right to counsel. We therefore reject his argument that he was denied the right to counsel. We also reject the other arguments Schloredt makes in his statement of additional grounds, and affirm. FACTS The State charged Phillip Linch Schloredt with second degree burglary of a tire shop in Edmonds on April 8, 2011. Prior to trial, Schloredt moved to exclude any reference to needles found in a bag in his truck. The court granted the motion and directed the State to "carefully instruct" its witnesses to not refer to the needles. No. 68495-7-1/2 At trial, Jerral Sidles testified that on the morning of April 8, 2011, she saw a "silhouette" on the other side of a fence separating her apartment complex from the Factory Direct Tires store on Highway 99. Beverly Ellingworth lived in the same apartment complex. Ellingworth testified that she saw Schloredt that morning throwing tires into a creek bed near the fence. When she confronted him, Schloredt said he was just getting tires out of the water. Ellingworth asked Schloredt if he worked for the tire store and he said, "No. I sell them tires." Ellingworth noticed a black pickup truck nearby with the tailgate down and a number of tires in the bed. Ellingworth told Schloredt to stay put and started to walk back to her apartment to call police. When she heard the truck start, Ellingworth told Schloredt that he could not leave until he pulled all the tires out of the creek. Schloredt removed the tires from the creek. After filling the back of his truck with the tires and putting several on the hood, Schloredt left. Ellingworth then called the police. Joseph Burch, the manager at Factory Direct Tires, testified that he saw Schloredt's truck that morning loaded with tires. When Burch called to him, Schloredt drove up and told Burch, "[T]he lady said I can have these." Burch told him that was not true. Schloredt responded, "It's not illegal, what I'm doing. Don't call the cops." Schloredt drove off and Burch called the police. Burch testified that the tires in the store's fenced yard were stacked at closing time on April 7, 2011. On April 8, however, there were tires lying on the ground and the fence had sustained damage that was not present the day before. Burch did not give Schloredt permission to take the tires. Burch testified that he positively identified No. 68495-7-1/3 Schloredt as the person he had seen driving away with the tires, and confirmed that the tires in the truck had come from his store. Officer Stephen Morrison of the Edmonds Police Department testified that he responded to the report of a tire store burglary and stopped Schloredt's truck. When Officer Morrison told Schloredt why he stopped him, Schloredt said he found the tires in a creek bed next to a tire store in Edmonds. Schloredt denied going onto the property of the tire store. Schloredt said he would have taken more valuable tires if he had gone into the fenced area. Officer Alan Hardwick of the Edmonds Police Department also responded to the burglary report. Officer Hardwick noticed that Schloredt's coat was wet and that he seemed "unstable." Officer Hardwick said he asked about the contents of a bag in the back of the truck and Schloredt said," '[Tjhere might be some needles.'" On cross- examination, defense counsel asked Officer Hardwick if he had an opinion as to whether Schloredt was under the influence of drugs. When Officer Hardwick said he had an opinion, defense counsel asked what that opinion was. Officer Hardwick then explained that he wondered whether Schloredt was under the influence, especially "when he said something about needles in the bag." When asked if he was speculating, Officer Hardwick said, No. . .. It was based on some observations: The way that he spoke, the way that he walked, his nervousness. But all those things together and then the comment about the needles made me wonder maybe he's used heroin. The jury convicted Schloredt as charged of second degree burglary. After trial, Schloredt's counsel withdrew, stating that Schloredt intended to move for a new trial in part on the grounds of ineffective assistance. No. 68495-7-1/4 A new public defender was assigned to represent Schloredt. Shortly thereafter, Schloredt's new counsel informed him by letter that after researching his proposed motions for arrest of judgment and a new trial, and after discussing the motions with her supervisor, she had decided not to participate in briefing or arguing the motions. The attorney's decision was based in part on the ethical obligation to disclose contrary authority to the court. The attorney encouraged Schloredt to present the motions himself and offered to assist him in filing any pleadings. On January 13, 2012, defense counsel told the court that she had met with her supervisor and decided that she would not participate in Schloredt's motion but would assist him with research and filing a reply. The attorney also requested a transcript of the fingerprint testimony at trial that Schloredt wanted to review. At the State's request, the court continued the hearing until January 31, 2012. At the January 31 hearing, defense counsel reiterated that she would not be participating in Schloredt's pro se motion. Schloredt proceeded to present extensive argument on his motion for a new trial. The court denied the motion, noting that the evidence against Schloredt was overwhelming and that any violation of the court's ruling excluding references to the needles was harmless. On February 27, 2012, Schloredt, with his counsel present, argued his motion for arrest of judgment. Schloredt showed the court the letters from defense counsel explaining why she decided to not participate in briefing or argue the motion for a new trail and the motion for arrest of judgment. Schloredt then told the court, I just want it on the record that I never requested to proceed pro se on these issues and since I don't have any representation, that this is a violation of my constitutional rights to knowingly and willingly forfeit my right to representation by a lawyer. No. 68495-7-1/5 The court asked defense counsel to clarify the situation for the record. Counsel reiterated the reasons set forth in the letters to Schloredt. But counsel told the court that she had responded to Schloredt's request for copies of cases and would be representing him at sentencing. Schloredt told the court, "I don't believe I'm qualified to represent myself and asked for an attorney. The court explained to Schloredt that any lawyer would have the same problem. The court gave him the choice of presenting his motions pro se or through current counsel. If he chose the latter, itwould be with the understanding that counsel would have a duty to divulge contrary authority to the court. Schloredt opted to proceed pro se. The court then conducted a colloquy concerning waiver of his right to counsel. Following a continuance, Schloredt presented his motion for arrest ofjudgment. The court denied the motion. At sentencing, defense counsel argued for an exceptional sentence below the standard range or, alternatively, a low-end standard-range sentence. After finding that Schloredt had an offender score of 24, the court imposed a mid-range sentence of 60 months. Schloredt appeals. ANALYSIS Schloredt's principal contention on appeal is that the trial court erred in allowing his post-trial counsel to "withdraw" without first ensuring that he had knowingly, voluntarily, and intelligently waived his right to counsel. This contention fails for several reasons. No. 68495-7-1/6 First, Schloredt's post-trial counsel did not withdraw. Rather, the attorney made a professional judgment not to pursue the issues Schloredt wished to pursue. Contrary to Schloredt's contentions, the attorney was under no obligation to pursue those issues. Defense attorneys in criminal cases retain "wide latitude to control strategy and tactics" and need not pursue any and all arguments the defendant wishes to pursue. In re Pers. Restraint of Stenson. 142 Wn.2d 710, 733, 16 P.3d 1 (2001); State v. Piche. 71 Wn.2d 583, 590, 430 P.2d 522 (1967). The trial court recognized this point, stating, "I don't know that a lawyer, even if they represent somebody, has the obligation to bring an argument that they don't believe has merit." Schloredt fails to demonstrate any basis for concluding that counsel exceeded the wide latitude afforded her in deciding which arguments to pursue. Second, no waiver of the right to counsel was necessary in these circumstances. Although Schloredt had no right to present his pro se arguments while represented by counsel, the court, in its discretion, allowed him to do so. State v. Barker, 35 Wn. App. 388, 394, 667 P.2d 108 (1983) (courts have discretion to allow a defendant represented by counsel to present argument). When a defendant represents himself while still represented by counsel—a situation referred to as "hybrid representation"—no waiver of the right to counsel is necessary if the defendant does not assume core functions of counsel or has the active assistance of experienced legal counsel. Barker, 35 Wn. App. at 394-95. Here, Schloredt did not assume a core function of defense counsel. He did not, for example, make opening or closing statements or cross-examine witnesses— functions at the heart of the trial process which, if performed pro se, expose the No. 68495-7-1/7 defendant to significant risks. Schloredt merely presented post-trial arguments that his counsel decided not to present. Further, Schloredt did not assume or take over counsel's role since counsel researched the issues, discussed them with her supervisor, and decided she could not pursue those arguments. In addition, counsel assisted Schloredt with his motion by providing copies of cases, notes to assist him in preparing his briefing, and information from an investigator regarding his argument that the State did not disclose exculpatory fingerprint evidence. In these circumstances, no waiver was necessary. Finally, even if a waiver was required, the court conducted a thorough colloquy on the record prior to Schloredt's presentation of his motion for arrest of judgment. Because this motion repeated the arguments asserted in his earlier motion for a new trial, any error in failing to conduct the colloquy prior to the first motion was harmless. Cf. State v. Lackey. 153 Wn. App. 791, 803, 223 P.3d 1215 (2009) (waiver of speedy trial without counsel was harmless where defendant subsequently waived speedy trial with new counsel). Schloredt also challenges the manner in which his counsel informed the court of her decision regarding his post-trial motions. Schloredt contends counsel "actually became an advocate against her client when she essentially informed the court that she believed his motions were frivolous." In support, Schloredt relies on State v. Chavez, 162 Wn. App. 431, 257 P.3d 1114 (2011). In Chavez, defense counsel withdrew and the court appointed substitute counsel to represent Chavez on his motion to withdraw his guilty plea. Chavez, 162 Wn. App. at No. 68495-7-1/8 435-36. At the motion hearing, defense counsel filed an Anders1 brief, stating that he could not find a basis in law or fact to challenge Chavez's guilty plea. Chavez, 162 Wn. App. at 436. On appeal, Division Three held that while defense attorneys may decline to assert issues they consider frivolous, counsel's conduct in Chavez's case amounted to a complete denial of counsel at a critical stage. Chavez, 162 Wn. App. at 439. The court emphasized that Anders briefs are an appellate procedure designed for the withdrawal of counsel on appeal, that use of the procedure on a discrete issue in a trial court was completely inappropriate, and that use of "a procedure permitted on appeal but with no precedent or other authority for use in the trial court" raised "enough concern ... to warrant a second look at the motion to withdraw." Chavez, 162 Wn. App. at 439- 40. Nothing remotely similar to counsel's conduct in Chavez occurred in this case. Schloredt's counsel followed proper procedures and was circumspect regarding her reasons for not pursuing Schloredt's motions. To the extent counsel's letters to Schloredt may have undermined Schloredt's motions, the State correctly points out that it was Schloredt, not his counsel, who submitted those letters to the court. Counsel acted at all times in a manner consistent with her ethical duty of candor to the court and her duties to her client. Schloredt's claim that he was denied his right to counsel is meritless. Schloredt raises several additional claims in a pro se statement of additional grounds for review. Most of these claims were raised and rejected in Schloredt's post- trial motions. We review the court's decisions on those motions for abuse of discretion. 1 Anders v. California. 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 8 No. 68495-7-1/9 State v. Smith, 159 Wn. App. 694, 699-700, 247 P.3d 775 (2011); State v. Meridieth. 144 Wn. App. 47, 53, 180 P.3d 867 (2008). Schloredt contends he was denied due process because the prosecutor failed to disclose exculpatory fingerprint evidence prior to trial. In rejecting this argument, the trial court noted that there was no exculpatory evidence to disclose. The evidence simply showed that a smudge on a tire inside the fenced area did not present a usable fingerprint. See State v. Romero. 113 Wn. App. 779, 796-97, 54 P.3d 1255 (2002) (absence of fingerprints does not mean absence of the defendant). The trial court did not abuse its discretion in rejecting this claim. Schloredt also argues, as he did below, that his counsel was ineffective for eliciting and failing to object to testimony violating a ruling prohibiting any mention of needles in his bag. To demonstrate ineffective assistance of counsel, a defendant must show both deficient performance and a reasonable probability that, but for counsel's errors, the result of the trial would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption of effective assistance, and Schloredt bears the burden of demonstrating the absence in the record of a strategic basis for the challenged conduct. McFarland, 127 Wn.2d at 335. Schloredt has not met his burden. Because there is no reasonable probability that the evidence affected the verdict, Schloredt cannot establish ineffective assistance of counsel. In rejecting this claim below, the trial court stated that "the evidence in this case was extremely overwhelming."2 The court also noted that there was no evidence regarding the nature 2(Emphasis added.) No. 68495-7-1/10 of the needles or any evidence of illegal drugs or drug use. In these circumstances, there is no reasonable probability that the evidence affected the verdict. Schloredt's challenge to a brief hearsay statement by witness Jerral Sidles is also unavailing. As the trial court correctly noted, the substance of the hearsay—i.e., that someone else told her Schloredt was wearing a leather jacket the morning of the offense—came in properly through the testimony of several other witnesses. Schloredt himself admitted that he was wearing a leather jacket. Accordingly, the court was within its discretion in concluding that any error was harmless. Next, Schloredt contends there was insufficient evidence to support his conviction. Evidence is sufficient if, when viewed in a light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn .2d 634, 638, 618 P.2d 99(1980). The State had the burden of proving that Schloredt entered or remained unlawfully in the fenced yard with intent to commit theft. In ruling on Schloredt's motions below, the trial court concluded there was "an abundance of circumstantial evidence that Mr. Schloredt committed a burglary in this case." We concur. The evidence included testimony that a person was seen inside the tire store's fence. A short time later, another witness saw Schloredt throwing tires into a creek bed near the fence. Schloredt's truck was partially loaded with tires. The fence was damaged, and 10 No. 68495-7-1/11 tires that had been stacked in the fenced yard the day before were missing or on the ground. Schloredt's statements and conduct, particularly his rapid flight from the scene, demonstrate consciousness of guilt. The defense conceded he was guilty of theft and argued only that the evidence was insufficient to prove burglary. Schloredt's conviction is supported by sufficient evidence. Last, Schloredt contends the calculation of his offender score of 24 is incorrect. Schloredt asserts all or a portion of his criminal history "washes out" because more than five years elapsed between certain convictions. But prior convictions do not wash out simply because five years elapsed between convictions. Rather, if the prior conviction was a class C felony, the offender must have spent five crime-free years in the community. RCW 9.94A.525(2)(c). Ifthe prior conviction was a class B felony, the offender must have spent ten crime-free years in the community. RCW 9.94A.525(2)(b). Schloredt does not mention either the class of his prior convictions or the period of time he spent in the community between convictions. Schloredt thus fails to demonstrate error in his offender score. Affirmed. ^rQ^WOQ a-r WE CONCUR: J£-Lcss^<n , fl,CQ% 11	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan September 4, 2012 Robert P. Young, Jr., Chief Justice 145422 & (20) Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra, Plaintiff-Appellee, Justices v SC: 145422 COA: 309063 Muskegon CC: 08-056165-FH NATHANIEL WARD, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the June 13, 2012 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motion for bond pending appeal is DENIED. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 4, 2012 _________________________________________ s0827 Clerk	{ "pile_set_name": "FreeLaw" }
461 N.E.2d 1149 (1984) J.C. PENNEY COMPANY, Inc., Montgomery Elevator CO., and Early Elevator Corp., Appellant-Defendant, v. Ruth E. WESOLEK and Paul J. Wesolek, Appellee-Plaintiff. No. 3-683A191. Court of Appeals of Indiana, Third District. April 16, 1984. 1150 Edward N. Kalamaros, Thomas Cohen, Edward N. Kalamaros & Associates, P.C., South Bend, for appellant-defendant. Gerald A. Kamm, Daniel A. Manion, Doran, Manion, Boynton, Kamm & Esmont, South Bend, for appellee-plaintiff. STATON, Presiding Judge. Ruth Wesolek fell on a down escalator in a J.C. Penney (Penney) department store when the handrails stopped moving in sequence with the steps. Ruth sued Penney and Early Elevator Company (Early), the company responsible for the installation and the maintenance of Penney's escalators, for their negligence. She sued the manufacturer of the escalator, Montgomery Elevator Company (Montgomery), in strict tort liability. Early successfully moved for judgment on the evidence at the 1151 close of Ruth's case; the jury returned a verdict for Penney and Montgomery. The trial court agreed with Ruth's contention in her motion to correct errors that its instructions on contributory negligence and the duty owed to a licensee were unsupported by the evidence; it granted a new trial. On appeal, Penney contends that the evidence supports the instructions. I. Instruction on Contributory Negligence If any of the trial court's stated reasons for its decision to grant a new trial are proper, or, if any unstated theory requires a new trial we must affirm the decision. Easley v. Williams (1975), 163 Ind. App. 38, 40-41, 321 N.E.2d 752, 756. The trial court's instruction on contributory negligence reads as follows: "Contributory negligence is a defense in this case as to plaintiff's claim of negligence against the defendant, Penney's. Contributory negligence is any negligence on the part of the plaintiff, Ruth E. Wesolek which would proximately contribute to her alleged injuries and damages. So in this case, if you should find by a fair preponderance of all the evidence that Ruth E. Wesolek, was negligent in any manner, however slight, which proximately contributed to her alleged injuries, then plaintiffs, Ruth E. Wesolek and Paul J. Wesolek, cannot recover from the defendant Penney's." For the following reasons, the trial court determined that this instruction was erroneous: "Giving defendant's Instruction No. 7 was erroneous and invited speculation and unfounded inferences by the jury in that the evidence indicated no act or failure to act by the plaintiff that would have established any basis for the defense of contributory negligence. Since the court cannot gauge the effectiveness of this erroneous instruction, a new trial is therefore necessary." We agree with the trial court that the evidence was insufficient to support an instruction on contributory negligence. The facts pertinent to the issue of contributory negligence are as follows: Ruth, a sixty-two year old woman suffering from arthritis in both legs, was riding Penney's down escalator when it malfunctioned. She was approximately four steps from the top of the escalator when the right handrail stopped moving in sequence with the steps throwing her onto her left side. In an attempt to regain her balance, Ruth reached for the left handrail which had also stopped moving. She clung to both handrails, her hands sliding down them as the steps carried her feet downward. Approximately three quarters of the way down, the handrails started moving and Ruth was able to stand and walk off the escalator. Penney's allegation of contributory negligence was supported only by its contention that a noise which Ruth heard when she originally gripped the handrail and the handrail's sudden jerking motions should have warned her to release her grip; her failure to heed these warnings by releasing her grip contributed to her fall. Penney further challenged Ruth's reaction to the malfunction with evidence that on the day Ruth fell approximately 500-800 people had descended the same escalator without incident or complaint. Even though Penney's burden to prove contributory negligence does not require it to introduce all of the evidence to support its theory, the evidence must show that Ruth did not act as a reasonable person would have acted in the same position. Hi-Speed Auto Wash, Inc. v. Simeri (1976), 169 Ind. App. 116, 118, 346 N.E.2d 607, 608. Additionally, entitlement to an instruction on contributory negligence requires some evidence in the record to support it. Dukes GMC, Inc. v. Erskine (1983), Ind. App., 447 N.E.2d 1118, 1123. Penneys failed to carry its burden; the evidence does not support an instruction on contributory negligence. The evidence does not show that Ruth acted unreasonably. Ruth testified that the noise and the jerking motions from the handrail occurred after she was approximately 1152 four steps from the top of the escalator. Even though no other incidents were reported by other passengers who rode the escalator on the day Ruth fell, the evidence did not show that those passengers dealt with a similar handrail malfunction during the course of their ride. Consequently, the evidence does not support Penney's defense theory of contributory negligence. Therefore, Penney was not entitled to the instruction. The trial court was correct that the jury could have found contributory negligence only by speculation. II. Instruction on Duty Owed to a Licensee The following facts gave rise to the instruction on the duty owed to a licensee: On the day she fell Ruth was employed in the drapery department of Sears Department Store, a business competitor of Penney. Ruth's supervisor had requested that she inspect the display techniques used in Penney's drapery department. While on her supper hour, Ruth went to Penney's. She testified that before she went to see the display, she made a purchase. After seeing the drapery display, Ruth stepped onto the down escalator with which Penney had been having trouble and fell during the course of her ride. On cross-examination, Penney attempted to impeach Ruth's credibility by questioning her testimony about her purchase because no receipt was introduced nor did any other witness see her with a package. This purchase was important because under Indiana law Ruth's status as a licensee or an invitee in a department store determines the duty of protection Penney would have owed to Ruth. Based on the above facts, the following instruction described the duty owed to a licensee: "A licensee takes the premises of the occupant as .. . she finds it ... The only duty an occupant owes to a licensee is to refraim from willfully or wantonly injuring ... her. To hold one guilty of `willful' or `wanton' conduct, it must be shown that the occupant was conscious of his conduct and with knowledge of existing conditions that injury could probably result, and with reckless indifference to consequences the occupant consciously and intentionally did some wrongful act or omitted some duty which produced the injuries." For the following reasons the trial court agreed with Ruth that this instruction was erroneous: "The court further finds upon reflection and consideration, that giving of defendant J.C. Penney's Instruction No. 4 was also erroneous in that it also invited speculation and probably caused confusion in the minds of the jury. The evidence clearly indicates that the plaintiff entered the defendant J.C. Penney store to make a purchase and also to look at the drapery department. This evidence, coupled with the basic physical layout of the store, which invites entrance to the entire mall by passing through the defendant J.C. Penney store, is an implied and almost an express invitation for the mall buyers to visit their store. The fact that impulse buyers constitute a significant portion of the retail sales volume, supports the contention that a store has an economic interest and benefit in encouraging traffic through their store. A customer is clearly an invitee as a matter of law and the improvidently granted instruction could only cause confusion." The trial court's reason for finding this instruction erroneous is incorrect as a matter of law. However, the above instruction is erroneous because its inadequacy almost assuredly invited speculation. As stated above, we will affirm the trial court's decision to grant a new trial if required by either a stated or an unstated reason or theory. Under Indiana law the evidence supported an instruction on the duty owed to a licensee and an invitee which contained the facts necessary to determine whether at the time she fell Ruth was a licensee or an invitee. Accordingly, the trial court properly granted a new trial. Penney correctly contends that in Indiana the extent of the public department 1153 store's duty to protect from injury persons on its premises requires a determination of whether the person was at the time of the injury a licensee or an invitee. It asserts that because the evidence raised a question of fact about Ruth's status, the instruction as given was correct. As stated above, we disagree. The status of a person on the land of another determines the duty of care which that person can expect from the owner. Mullins v. Easton (1978), 176 Ind. App. 590, 593, 376 N.E.2d 1178, 1181. The determination of status depends in part upon the purpose of the visit and in part upon the purpose for which the owner has held his land open. Id. Therefore, the facts of the particular case determines the visitor's status and the owner's corresponding duty. In Indiana a person who legally enters the premises of another for his own convenience, curiosity, or entertainment is a licensee. Mullins, supra at 594, 376 N.E.2d at 1181; Fort Wayne National Bank v. Doctor (1971), 149 Ind. App. 365, 370, 272 N.E.2d 876, 880. The corresponding duty is that the owner must warn the visitor of any known concealed, dangerous conditions. Mullins, supra 176 Ind. App. at 594, 376 N.E.2d at 1181.[1] Otherwise, the owner has no legal duty to keep his land free from pitfalls. Id. To qualify as an invitee, a visitor's purpose for using the owner's premises must correspond to the owner's purposes for allowing others on his land. Mullins, supra at 593, 95, 376 N.E.2d at 1181. Standard Oil Company of Indiana v. Scoville (1961), 132 Ind. App. 521, 525-27, 175 N.E.2d 711, 713. If a visitor's purpose is related to the owner's pecuniary interest, the owner has a duty to exercise reasonable care to make the premises safe for the visitor. Id. Alternatively, a visitor is an invitee if the owner encourages entry to further his own purpose. Id. From the encouragement arises the assertion that reasonable care has been exercised to make the premises safe for the visitor who entered for that purpose. Id. Applying the law, Ruth's status as a licensee or as an invitee depended in part upon her purpose for her presence in Penney at the time of her fall and in part upon Penney's purpose for holding its store open to the public. Mullins, supra 176 Ind. App. at 593-95, 376 N.E.2d at 1181; Standard Oil, supra 132 Ind. App. at 525-27, 175 N.E.2d at 713-14. Consequently, whether Ruth made a purchase in Penney's before her fall is crucial to the determination of her status at the time of her fall. If, at the time of her fall Ruth had made a purchase which would have benefitted Penney and which corresponded to Penney's purpose for allowing entry upon its premises, then she would have been an invitee requiring Penney to make the premises safe against its own negligence. However, if her purpose was merely to carry out the request of her employer to compare displays so that she was in Penney's for her own convenience or curiosity which would neither have benefitted Penney nor corresponded to Penney's purpose for allowing entry, she would have been a licensee requiring only a warning of a known dangerous concealed defect. See Standard Oil, supra at 527-28, 175 N.E.2d at 714. Whether Ruth made a purchase in Penney's is a question of material fact. If she did so, then her status was that of an invitee. If not, her status was that of a licensee. Therefore, the instruction on the duty owed to a licensee was inadequate for its omission of pertinent facts. The decision to grant a new trial is affirmed. Affirmed. HOFFMAN, J., concurs. GARRARD, J., concurs in Result with Opinion. *1154 GARRARD, Judge, concurring. I concur with the majority concerning issue I. Accordingly, it is not necessary to decide issue II, although the propriety of an instruction concerning invitee-licensee status is likely to recur on retrial. I believe such an instruction correctly stating the law is appropriate if the facts in evidence establish a genuine issue as to Wesolek's status at the time. I do not agree with the majority's assertion that whether Wesolek made a purchase before her fall is "crucial to the determination," although it is certainly significant evidence. I therefore concur in the result reached. NOTES [1] Although Ruth argues that this definition of care owed to a licensee was erroneously omitted from the instruction, she did not preserve this contention for appeal. However, we note that it is a question of fact for the jury to decide whether or not the trouble Penneys was experiencing with its escalator constituted a known concealed dangerous defect.	{ "pile_set_name": "FreeLaw" }
127 F.3d 40 U.S.v.McCord* NO. 97-2046 United States Court of Appeals,Eleventh Circuit. Sept 26, 1997 Appeal From: M.D.Fla. ,No.9600192CRT21E 1 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs May 7, 2013 STATE OF TENNESSEE v. MICHAEL SMITH Appeal from the Criminal Court for Shelby County No. 09-04071 Carolyn Wade Blackett, Judge No. W2011-01630-CCA-R3-CD - Filed July 12, 2013 The defendant, Michael Smith, was convicted by a Shelby County Criminal Court jury of assault, a Class A misdemeanor, and aggravated burglary, a Class C felony, and sentenced as a multiple offender to concurrent terms of eleven months, twenty-nine days and seven years, respectively, in the Tennessee Department of Correction. In this pro se appeal, the defendant argues that: (1) the trial court erred in constructively amending the indictments in its charge to the jury; (2) the evidence is insufficient to sustain his convictions; (3) the State failed to provide sufficient notice in the indictment regarding the charge of aggravated burglary; (4) the trial court erred in failing to recuse itself prior to trial; (5) the trial court erred in failing to apply the appropriate standard to adjudicate the non-structural constitutional errors he raised in the motion for new trial; (6) he was denied a fair trial by the trial court impermissibly restricting his cross-examination of the victim; (7) he was denied a fair trial because the State did not give advanced notice that Officer Michael Garner would testify at trial; (8) the State knowingly introduced false testimony and evidence; (9) he was denied a fair trial because the trial court failed to make a determination regarding the admissibility of his prior convictions before he chose not to testify; (10) the State violated the Jencks Act by failing to provide a recording of a conversation between Kimberly Chrestman and the prosecutor; (11) he was denied a fair trial by Kimberly Chrestman’s testifying about his prior bad acts; (12) the State committed prosecutorial misconduct in closing argument; (13) the trial court failed to give appropriate jury instructions; (14) the trial court erred in its sentencing determination; and (15) the trial court erred in revoking his bond. After review, we conclude that the trial court erred in constructively amending the indictment in its charge to the jury and that the defendant’s convictions must be reversed and the case remanded for a new trial. In the event of further appellate review, we have assessed the defendant’s remaining issues and discern no additional error. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Remanded for New Trial A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and N ORMA M CG EE O GLE, JJ., joined. Michael Smith, Whiteville, Tennessee, Pro Se (on appeal); and Javier Bailey, Memphis, Tennessee (at trial). Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paul F. Goodman, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS In the light most favorable to the State, the proof at trial showed that on February 9, 2009, the defendant’s girlfriend, Kimberly Chrestman, went to the apartment of the victim, Matthew Ronning, where she remained for the evening. In the early morning hours of the next day, the victim went outside to his car and was attacked by the defendant. The defendant subsequently entered the victim’s apartment and engaged in an altercation with Chrestman. As a result of these actions, the defendant was indicted on charges of aggravated assault and aggravated burglary. Trial At trial, the victim testified that, in February 2009, he lived in a two-bedroom apartment in midtown Memphis with a roommate, Marris Orange. On February 9, Kimberly Chrestman came to his apartment because she had decided to leave her live-in boyfriend, the defendant, and wanted the victim to take her to her mother’s house in Mississippi early the next morning. Around 4:00 a.m. the next morning, the victim went outside to unlock his car in preparation of taking Chrestman to Mississippi, while Chrestman stood outside the apartment and watched. As he started to unlock his car, the victim heard Chrestman scream, and he turned around “right as [the defendant] was swinging his arm down with some form of sharp instrument in his hand that I later saw was a screw driver. But he stabbed me in the back[.]” He said that he had just opened his car door and was standing outside the driver’s side when the attack occurred. The victim recalled that the defendant tried to stab him a couple more times, but he was able to fend off those attempts. The defendant then kicked him in the knee and pushed -2- him into the front seat of the car. The defendant “climbed in on top of [him] and started pummeling [his] he[a]d and upper body with his fists, trying to stab [him] again, but didn’t succeed except once in [his] arm.” The defendant continued to beat the victim until the victim was able to unlock the passenger’s side door and tumble onto the ground. He rolled under the car parked next to his and called 911. The victim stated that he was “rather terrified” during the attack and described it as “an extremely frightening experience.” The victim said that he believed his keys were still in the door of his car during the incident, and his house key was on the same ring. While he was under the car, he saw Chrestman and Orange inside the apartment, standing at the window in the front room. The victim testified that he got out from under the car and “ran around the building and started pounding on [his] neighbor’s window.” However, the defendant somehow ended up at the back of the apartment and started attacking the victim again. When the victim’s neighbor came outside, the defendant went back to the front of the building, and the victim heard Chrestman and Orange yelling from inside the apartment. The victim said that the only way into his apartment would have been to break a window or have the keys. According to the victim, the defendant left the scene on his bicycle when the sound of sirens could be heard. The police arrived shortly thereafter. The victim observed that the door to Orange’s bedroom had been “kicked off the hinges.” When he returned from the hospital, he saw that the back exterior door was “off the hinges also and split” and the bathroom window was broken out. The victim stated that he did not attack the defendant or do anything to provoke the defendant other than “giv[e] shelter to his girlfriend.” On cross-examination, the victim stated that, to his knowledge, Chrestman was not under the influence of drugs when she arrived at his apartment. He denied that he and Chrestman used drugs that evening. The victim said that he did not know why it took him eight days after the attack to go to the police department and give a statement, but he denied that the delay was because he was “getting high” on drugs for several days. The victim denied initially telling the police that the defendant came at him with brass knuckles and a knife. The victim said that he told the police that the victim took his car keys, which he assumed because he found the keys in the front door and that was how the defendant could have gotten inside the apartment. The victim acknowledged a prior conviction for aggravated assault but denied having “a pretty nasty temper” or getting violent. The victim denied taking Chrestman to a friend’s house the night of the incident. Officer Gregory Hilliard with the Memphis Police Department testified that he arrived at the scene with his field-training officer at the time, Officer Barrett, around 4:30 or 5:00 a.m. He observed the victim sitting in a chair outside his apartment holding his head, which was bleeding. He also recalled seeing two women at the scene. He assessed the inside of the -3- apartment and saw that the bathroom window had been broken out and a bedroom door kicked in. Officer Hilliard noted that, as they were patrolling in the area prior to receiving the dispatch call, they observed a white male pass them on a bicycle. After they received the call detailing that the perpetrator had left the scene on a bicycle, they thought it likely that the man who had passed them was the perpetrator. On cross-examination, Officer Hilliard recalled that, when he talked to the victim at the scene, the victim told him that “[h]e was approached with a knife and struck with brass knuckles, but he didn’t recall it being just a fist only.” He said that it was approximately “a minute, maybe a minute and a half” between when they saw the man ride past them on a bicycle and them arriving at the scene. Officer Michael Garner with the Memphis Police Department testified that he and his team of five officers arrested the defendant on February 17, 2009, in a multiple unit apartment complex at 1050 North Parkway where the defendant’s father lived. The defendant’s father gave Officer Garner permission to enter his apartment and, once inside, Officer Garner observed a six-foot ladder under an opening in the ceiling that led to the attic. The defendant’s father “didn’t have a problem” with the officers entering the attic, so Officer Garner did so. He observed light coming from an adjacent apartment and alerted his partners to guard the exits. He then entered the crawlspace beneath the attic on his hands and knees from where he saw an opening into an adjacent apartment. He yelled to see if anyone was in the apartment, but no one answered him. Officer Garner testified that he heard a door slam, and one of his partners radioed that someone had tried to exit the back door. Officer Garner again ordered that the person show himself, and then he received word that someone was attempting to exit through the front door. Officer Garner dropped down into the adjacent apartment and observed the defendant in the living room. The defendant was placed under arrest, and the officers “had to force entry on the back door” to get out because both exterior doors had dual-cylinder, keyed deadbolts. Officer Garner testified that the defendant was arrested without a warrant, but the arrest was based on probable cause that he had committed the aggravated assault and aggravated burglary. He said that he was sent to the scene by officers in the robbery office to arrest the defendant only; he did not conduct a search for evidence. Officer Garner acknowledged seeing a woman in the apartment with the defendant’s father, but he did not know who she was. The woman informed Officer Garner that she was in the apartment “to take care of the old man.” Officer Garner acknowledged that he did not actually observe the defendant enter the adjacent apartment from his father’s apartment. He said that the defendant did not make a statement to him. -4- Kimberly Chrestman acknowledged that she had been arrested on several prior occasions and admitted having a drug problem. Chrestman testified that the defendant was her boyfriend until he went to jail, and he had helped her recover from an illness. Chrestman testified that she went to the victim’s apartment on February 9, 2009, because she and the defendant had gotten into a fight and she was afraid of him. About an hour after she arrived, as she was sitting in a chair in the victim’s bedroom, she saw the defendant peering in the window. However, she did not call the police because she had been smoking cocaine with the victim’s roommate, Marris Orange. The victim and some of their other friends investigated the premises and thought the defendant was gone. Chrestman testified that, later, the victim left the apartment and was going to his car when “out of nowhere [the defendant] pops up.” Chrestman and Orange watched from the door as the defendant attacked the victim with a “silver and shiny” object, later learned to be a screwdriver. The defendant hit the victim several times, and the victim managed to get in his car in an attempt to get away from the defendant. However, the defendant got into the car with the victim and continued to attack him. At some point, Chrestman noticed that the defendant had the victim’s keys in his hand, so she and Orange locked the door, ran into Orange’s bedroom, and called 911. The defendant kicked the door, made of simple plywood, off its hinges and it “flew over [her] head[.]” He then dragged her into the living room by her hair and was cursing at her, but he left when he heard the sound of police and ambulance sirens. Chrestman said that, after the incident, Orange took the victim’s car to meet him at the emergency room and dropped Chrestman off at a friend’s house on the way. Asked why she did not give a statement to the police that day or a couple of days later, Chrestman responded, “Because I don’t like police. At that time we were doing illegal things, you don’t want to go into a police station. And I wasn’t exactly . . . living at my best back then.” She stated that it was possible that she was on Prozac and Klonopin at the time of the crimes. Chrestman acknowledged that she resumed her relationship with the defendant after the incident. She said that she was at the defendant’s father’s apartment when the police arrested him, and she did not tell the police that the defendant was “in the attic three apartments over.” Chrestman denied that she threatened to testify against the defendant if he did not give her the house she was living in. She also denied telling the defendant, when she visited him at the jail prior to trial, that she was going to “send him away.” Chrestman denied that the reason the victim went to his car the morning of the incident was to take her to her mother’s house in Mississippi. She acknowledged that her memory was poor in general but was adamant that she “remember[ed] what happened that day.” -5- Following the conclusion of the proof, the jury convicted the defendant of assault, as included in the first count of the indictment, and aggravated burglary, as charged in the second count of the indictment. Sentencing Hearing The trial court conducted a sentencing hearing, at which the State offered the defendant’s presentence report, as well as certified copies of the defendant’s prior rape and attempted rape convictions, into evidence. The State also offered proof that the defendant had a prior conviction for felony escape and a violation of probation out of another county. The defendant also pled guilty to felony damage of property in Washington state and ultimately violated his probation on that offense. Although he denied that he was the perpetrator, the defendant admitted he pled guilty to the rape of a nurse that occurred in Memphis on March 19, 1995, and to the rape of a nineteen-year-old college student that occurred in Memphis on April 6, 1995. He acknowledged his prior conviction for felony escape out of Hardeman County in 1998, as well as a probation violation in that same county. He admitted to pleading guilty in Washington state to damage to government property but claimed that it was only a misdemeanor. The defendant stated that he rode his bicycle to the victim’s apartment looking for Chrestman “[t]o stop [her] from dying.” He explained that Chrestman had been diagnosed with cervical cancer a couple months before the incident, and excessive drug use precipitated a situation where she was “hemorrhaging severely” and almost died. He was concerned because drug use and drinking alcohol “would cause her to hemorrhage even worse,” so he “went everywhere” to look for her. When he arrived at the victim’s apartment, Chrestman was “smoking crack.” He admitted that he and the victim got into a fight and that he entered the victim’s apartment, but he said that the front door was open. He denied that he kicked in the bedroom door or grabbed Chrestman by the hair. He said that it was physically impossible for the bedroom door to fly over Chrestman’s head in the manner she described at trial. The defendant testified that he completed high school and attended “[a] couple of years” of college at “Memphis State and Everett Community College.” He said that he managed properties, including the apartment complex where he was arrested for the underlying crimes, which he also owned. He stated that he had been incarcerated for nine months at the time of sentencing and that he would abide by the terms of an alternative sentence if granted one. -6- The defendant testified that Chrestman and her mother had stolen most of his personal property at his house and withdrawn money from his account without his permission. However, he did not report the thefts to the police because he was incarcerated. He admitted that he was a registered sex offender in Tennessee. After hearing arguments from the parties, the trial court sentenced the defendant to concurrent terms of eleven months and twenty-nine days on the assault conviction and seven years on the aggravated burglary conviction. In enhancing the defendant’s sentence, the court found that the defendant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish his range, and he had a previous history of unwillingness to comply with the conditions of a sentence involving release into the community. The court found no applicable mitigating factors. The court found that the defendant was not a good candidate for probation and ordered that he serve his sentence in confinement. ANALYSIS As an initial matter, we note that the State asserts that the defendant’s motion for new trial was untimely filed and therefore this court should only review the defendant’s claims of sufficiency, sentencing, and for any plain error. However, the defendant has provided documents indicative of his apparent compliance with the “mailbox rule.” See Tenn. R. Crim. P. 49. Accordingly, we will address the defendant’s claims. I. Constructive Amendment The defendant argues that the trial court erred in constructively amending the indictment in its charge to the jury. He asserts that the indictment specified a theory for each charge, but the jury charge was not limited to those specific theories. Specifically, the indictment for aggravated assault charged that the defendant “did unlawfully and knowingly commit an assault on [the victim] and use[d] or display[ed] a deadly weapon and cause[d] bodily injury to the said [victim].” However, the court charged the jury that aggravated assault could be committed by causing bodily injury to another or causing another to reasonably fear imminent bodily injury. See Tenn. Code Ann. §§ 39-13-101(a)(1), (2); - 102(a)(1)(A). Similarly, the indictment for aggravated burglary charged that the defendant entered the victim’s habitation with intent to commit assault, but the charge to the jury included the additional theory of aggravated burglary that the defendant entered the victim’s habitation and committed or attempted to commit an assault. See id. §§ 39-14-402(a)(1), (a)(3) ; -403(a). -7- It appears the defendant failed to include this issue in his pro se motion for new trial, which results in waiver of the issue on appeal, absent plain error. See Tenn. R. App. P. 3(e) (providing for waiver of issues not specifically stated in a motion for new trial); State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (stating that a defendant waives those issues not raised in a motion for new trial and those issues are subject to plain error review). In order for us to find plain error: (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established by the record before we will recognize the existence of plain error, and complete consideration of all the factors is not necessary when it is clear from the record that at least one factor cannot be established. Id. at 283. Both the Federal and Tennessee Constitutions guarantee a criminal defendant knowledge of the “nature and cause of the accusation.” U.S. Const. amend. VI; see also Tenn. Const. art. I, § 9. An indictment, therefore, must provide notice of the offense charged, adequate grounds upon which a proper judgment may be entered, and suitable protection against double jeopardy. Tenn. Code Ann. § 40-13-202; State v. Byrd, 820 S.W.2d 739, 740- 41 (Tenn. 1991). “[A] defendant cannot legally be convicted of an offense which is not charged in the indictment or which is not a lesser offense embraced in the indictment.” State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997) (citing State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996)). “[N]ot only must the government prove the crime it charges, it must charge the crime it proves” and “after an indictment has been returned, its charge may not be broadened or changed except by action of the grand jury.” State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001). As this court observed in Goodson, [C]ourts [must] distinguish between constructive amendments of the indictment, which are reversible per se, and variances between indictment and proof, which are evaluated under the harmless error doctrine. The accepted test is that a constructive amendment of the indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged. . . . . In such cases, reversal is automatic, because the defendant may have been convicted on a ground not charged in the indictment. . . . If, on the other hand, the variation between proof and indictment does not effectively modify an essential element of the offense charged, “the trial court’s refusal to restrict the jury charge to -8- the words of the indictment is merely another of the flaws in trial that mar its perfection but do not prejudice the defendant.” Id. (quoting United States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)). Another panel of this court, in addressing a situation concerning a constructive amendment, noted that the State was not required to “allege every alternative mode of liability available under [the statute] . . . [but], by alleging a specific statutory mode of liability, the State was obliged to prove that mode of liability and was precluded from achieving a conviction under a mode of liability different than that alleged in the indictment.” State v. Roger W. Christy, No. M2011-00852-CCA-R3-CD, 2012 WL 804064, at 6 (Tenn. Crim. App. Mar. 12, 2012) (citing State v. Paul Richardson, No. W2008-02506-CCA-R3- CD, 2010 WL 3791973 (Tenn. Crim. App. Sept. 29, 2010), perm. app. denied (Tenn. Mar. 9, 2011); State v. Jamie Roskom, No. M2006-00764-CCA-R3-CD, 2007 WL 432989 (Tenn. Crim. App. Feb. 9, 2007); State v. Atta Najjar, No. W2003-00329-CCA-R3-CD, 2004 WL 123213 (Tenn. Crim. App. Jan. 21, 2004), perm. app. denied (Tenn. June 1, 2004)) (parentheticals omitted). Here, the State alleged one theory of liability in each count of the indictment, but the court included additional theories in its charge to the jury. This is particularly of concern in this case because of the victim’s testimony that he was terrified and frightened during the attack, which could have caused some jurors to convict the defendant based on bodily injury to the victim and some to convict based on the victim’s being in fear of imminent bodily injury – a theory not charged in the indictment. Likewise, with regard to the aggravated burglary charge, the proof was more clear that the defendant committed or attempted to commit an assault, rather than just had the intent to commit an assault when he entered the apartment as had been alleged in the indictment. “Because the indictment in this case specifies ‘a particular means of committing the offense in the indictment, the defendant was not given proper notice that the jury would be allowed to find him guilty under a different element of the offense.’” Paul Richardson, 2010 WL 3791973, at 9 (quoting Atta Najjar, 2004 WL 123213, at 5). Therefore, the trial court constructively amended the indictment. See State v. Eric Lebron Hale, No. M2011-02138-CCA-R3-CD, 2012 WL 3776673, at 10 (Tenn. Crim. App. Aug. 31, 2012) (determining that the trial court constructively amended the indictment where the indictment “alleged only the ‘by violence’ mode of robbery[, but] . . . the trial court instructed the jury that it could convict the defendant of aggravated robbery by ‘the use of violence or putting the person in fear.’” We conclude that the five factors for finding plain error are present in this case and determine that the defendant’s convictions must be reversed and the case remanded for a new trial. Although the defendant’s remaining issues are pretermitted due to this conclusion, we -9- will briefly address the issues in the event of further appellate review. II. Sufficiency of the Evidence The defendant argues that the evidence is insufficient to sustain his conviction for aggravated burglary. He asserts that the State failed to prove that he did not have the consent of the owner to be on the property because he had been to the victim’s residence on “numerous occasions” in the past. He also asserts that the State failed to prove that he entered the apartment with the intent to commit an assault. In considering this issue, we apply the rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard applies whether the finding of guilt is predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). A criminal offense may be established entirely by circumstantial evidence. State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight to be given the circumstantial evidence and the extent to which the circumstances are consistent with the guilt of the defendant and inconsistent with his innocence. State v. James, 315 S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty to exclude every other reasonable hypothesis except that of the defendant’s guilt in order to obtain a conviction based solely on circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 380-81 (Tenn. 2011) (adopting the federal standard of review for cases in which the evidence is entirely circumstantial). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and -10- the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). As relevant here, aggravated burglary occurs when one enters a habitation with the intent to commit a felony, theft, or assault. Tenn. Code Ann. §§ 39-14-401; -402; -403. In the light most favorable to the State, the evidence shows that, around 4:00 a.m., after being involved in an altercation with the victim, the defendant took the victim’s keys from the victim’s car, used them to enter the victim’s home, broke down a bedroom door and assaulted Kimberly Chrestman by dragging her out of the bedroom by her hair while calling her a “dumb bitch.” The victim testified that his house key was on the same ring as his car key, and his keys were in the door of his car when the defendant was attacking him. The keys were later found in the front door of the victim’s apartment. It was within the province of the jury to infer that any alleged consent the defendant had to enter the victim’s residence was revoked upon the defendant’s attacking the victim. It was also within the province of the jury to infer that the defendant intended to commit an assault inside the defendant’s home when he entered the home without permission and broke down a door to get to Chrestman. This court has previously noted, in the context of reviewing a burglary conviction, that “[o]ne’s actions are circumstantial evidence of his intent.” State v. Barker, 642 S.W.2d 735, 737 (Tenn. Crim. App. 1982). There is sufficient proof for a rational trier of fact to find the defendant guilty of aggravated burglary. III. Notice Regarding Charge of Aggravated Burglary The defendant argues that the indictment failed to provide sufficient notice regarding the charge of aggravated burglary because it did not list the victim of the intended assault inside Matthew Ronning’s habitation. It appears that the defendant failed to include this issue in his motion for new trial and has therefore waived it on appeal. -11- Moreover, we discern no plain error as to this issue because a clear and unequivocal rule of law was not breached. The indictment charged the defendant with aggravated burglary as follows: “[The defendant] on February 10, 2009 in Shelby County, Tennessee, . . . did unlawfully and knowingly enter the habitation of Matthew Ronning, not open to the public, without the effective consent of the said Matthew Ronning, with intent to commit assault, in violation of T.C.A. 39-14-403[.]” It was not necessary for the aggravated burglary count of the indictment to state the intended victim of the underlying assault in order to put the defendant sufficiently on notice of the charge for which he would be required to defend himself. See, e.g., State v. Robert Allen Crawford, No. E2003-00627-CCA-R3-CD, 2004 WL 442906, at 9 (Tenn. Crim. App. Mar. 9, 2004), perm. app. denied (Tenn. Oct. 4, 2004) (noting that the indictment alleged that the defendant entered “‘a habitation, the property of [the victim], without the effective consent of the owner(s) and with the intent to commit an assault’”); James E. Kenner v. State, No. 01C01-9709-CR-00424, 1999 WL 333097, at 8 (Tenn. Crim. App. May 26, 1999) (stating the indictment alleged the petitioner “‘did enter the habitation of [the victims] with the intent to commit theft in violation of Tenn. Code Ann. § 39-14-403, and against the peace and dignity of the State of Tennessee’”), perm. app. denied (Tenn. Oct. 4, 1999); State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL 432338, at 12 (Tenn. Crim. App. Aug.2, 1996) (noting aggravated burglary indictment charged defendant with entering home without consent of owner “and with the intent to commit aggravated assault”); cf. State v. Haynes, 720 S.W.2d 76, 83 (Tenn. Crim. App. 1986) (noting that “[a]n indictment for burglary must set forth and define the felony intended to be committed[,]” but it was “not necessary to set forth exactly what the burglar intended to steal” in a case where larceny was the intended felony). IV. Recusal The defendant argues that the trial court erred in failing to recuse itself prior to trial. Again, this issue was not raised in the defendant’s motion for new trial, and we conclude that plain error does not exist because the record does not clearly establish what occurred in the trial court. The record contains an order of recusal entered by the trial court on April 23, 2012, well after the defendant’s trial and motion for new trial, but it is the only document relevant to this issue in the record. The record does not contain a motion for recusal or a hearing on a motion for recusal, and the reasons for recusal are not provided in the order of recusal. V. Trial Court’s Review of Non-Structural Errors The defendant argues that the trial court erred in failing to apply the appropriate standard to adjudicate the non-structural constitutional errors he raised in the motion for new -12- trial. He asserts that the State asserted at the motion for new trial that he “failed to prove that the multitude of Constitutional errors resulted in an unfair trial.” He claims that, because the trial court did not make findings of fact in its denial of his motion for new trial, the court concurred with the State’s argument which essentially put the burden on him to prove that the errors affected the verdict, rather than putting the burden on the State “to prove beyond a reasonable doubt that the Constitutional errors that did occur were harmless.” “[U]nless a party moves the trial court to set forth findings of fact and conclusions of law, the court’s order need state only whether the motion for new trial was granted or denied.” State v. Byington, 284 S.W.3d 220, 226 (Tenn. 2009). Even assuming the State argued for the incorrect burden of proof, we cannot assume that the trial court applied an inappropriate standard of review simply because it did not make findings of fact – something it was not required to do. VI. Cross-Examination of Victim The defendant argues that he was denied a fair trial because the trial court impermissibly restricted his cross-examination of the victim, specifically, the victim’s “history of assaultive conduct.” A defendant’s constitutional right to confront witnesses against him includes the right to conduct meaningful cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); State v. Brown, 29 S.W.3d 427, 431 (Tenn. 2000). “The propriety, scope, manner and control of the cross-examination of witnesses, however, rests within the discretion of the trial court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995) (citations omitted). This court will not, therefore, disturb a trial court’s limits on cross-examination unless we find that the court has placed unreasonable restrictions on that right. State v. Wyrick, 62 S.W.3d 751, 770 (Tenn. Crim. App. 2001); Dishman, 915 S.W.2d at 463. We cannot conclude that the trial court abused it discretion in its control of the cross- examination of the victim. Prior to the victim testifying, the court ruled that the defense could not ask the victim about a prior domestic assault conviction, as it was a misdemeanor and not a crime of dishonesty. The defendant was allowed to ask the victim about his prior conviction for aggravated assault and whether he had “a pretty nasty temper” or “g[o]t violent” before the State objected to any further questioning about the victim’s being violent. We discern no impermissible restriction on the defendant’s cross-examination of the victim. -13- VII. Notice of a Witness The defendant argues that he was denied a fair trial because the State failed to give advanced notice that Officer Michael Garner would testify at trial. He asserts that, because he did not know Officer Garner was going to testify, he was not able to summon the former tenant of the adjacent apartment where he was arrested, who would have testified that he was in the attic “attempting to fix a problem.” The State must include in the indictment “the names of the witnesses as [it] intends shall be summoned in the cause.” Tenn. Code Ann. § 40-17-106. The purpose of the statute is “to prevent surprise to the defendant at trial and to permit the defendant to prepare his or her defense to the indictment.” State v. Allen, 976 S.W.2d 661, 667 (Tenn. Crim. App. 1997). In order to obtain relief, a defendant must show “prejudice, bad faith, or undue advantage” as a result of the State’s delay in furnishing the witness’s name. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992) (citing State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987); State v. Craft, 743 S.W.2d 203 (Tenn. Crim. App. 1987)). “‘In this context, it is not the prejudice which resulted from the witnesses’ testimony but the prejudice which resulted from the defendant’s lack of notice which is relevant.’” State v. Wilson, 164 S.W.3d 355, 362 (Tenn. Crim. App. 2003) (quoting State v. Jesse Eugene Harris, No. 88-188-III, 1989 WL 60393, at 8 (Tenn. Crim. App. June 7, 1989), perm. app. denied (Tenn. Aug. 7, 1989)). The defendant has failed to show “prejudice, bad faith, or undue advantage” as a result of the State’s delay in furnishing Officer Garner’s name. There is simply no proof that the State did not provide the officer’s name in bad faith or to obtain an undue advantage. The defendant alleges prejudice caused by the delay, but such prejudice is speculative and unsubstantiated. VIII. Knowingly Introducing False Testimony and Evidence The defendant argues that the State “intentionally, knowingly, and willfully” elicited “perjurous testimony” from Officer Garner that the defendant was arrested at his father’s residence on February 17, 2009, and presented fabricated documentation that he had been arrested on February 17, 2009, when he was actually arrested on February 19, 2009, and the residence was his own. He also points to Kimberly Chrestman’s testimony about the bedroom door flying over her head as being “untrue per the laws of nature” and that the quitclaim deed was actually signed by her. “[A] conviction obtained through use of false evidence, known to be such by representatives of the State,” violates due process. Napue v. Illinois, 360 U.S. 264, 269 -14- (1959); see State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269. Accordingly, the State has an affirmative duty to correct false testimony when a witness testifies falsely on direct or cross- examination. Spurlock, 874 S.W.2d at 617. In order to prevail on a claim that the State knowingly presented or failed to correct false testimony or evidence, the defendant must establish by a preponderance of the evidence “(a) that false or perjured testimony was admitted at trial, (b) that the [S]tate either knowingly used such testimony or knowingly allowed it to go uncorrected, and (c) that the testimony was material and deprived him of a fair trial.” Roger Morris Bell v. State, No. 03C01-9210-CR-00364, 1995 WL 113420, at 8 (Tenn. Crim. App. Mar. 15, 1995), perm. app. denied (Tenn. Aug. 28, 1995). The defendant has failed to establish these factors. Assuming February 19 was the correct arrest date, it is possible that, at trial, Officer Garner misread the date on the arrest ticket, rather than intentionally lied about it, and we do not see how such date is material or prejudiced the defendant under the facts of the case. We also fail to see how testimony about the officers’ looking for the defendant at “his father’s house,” Chrestman describing that the door flew over her head, or Chrestman’s testimony about signing the quitclaim deed was material or deprived the defendant of a fair trial. IX. Determination of the Defendant’s Prior Convictions The defendant argues that he was denied a fair trial because the trial court did not make a determination regarding the admissibility of his prior convictions before he made the decision whether to testify. During the voir dire of the defendant, defense counsel questioned him about his awareness of the notice of intent to impeach with prior convictions, rape and attempted rape, filed by the State. Asked whether he wanted to testify, the defendant said, “I was hoping to get some kind of ruling where the Court wouldn’t allow the prior convictions first before I made this decision.” Defense counsel responded, “[D]id I tell you, . . . that so long as [the prosecutor] has filed his proper notices and they fall within the period of time and fall within the type of . . . relevance, that this Judge is going to let them in. . . . [S]he doesn’t have a choice in this matter.” The defendant answered, “[I]f that would be the Court’s decision, then I have no choice but to decline to testify; otherwise, I would. The court then asked the defendant if he wanted to testify, and he said, “Under the circumstances, with the prior convictions being admissible, no.” A conviction may be used to impeach the testimony of an accused in a criminal prosecution if the following four conditions are satisfied: (1) the conviction is for a crime -15- punishable by death or imprisonment in excess of one year, or the conviction is for a misdemeanor which involved dishonesty or false statement; (2) less than ten years has elapsed between the date the accused was released from confinement and the commencement of the subject prosecution; (3) the State gives reasonable pretrial written notice of the particular conviction or convictions it intends to use as impeachment; and (4) the trial court concludes that the probative value of the prior conviction on the issue of credibility outweighs its unfair prejudicial effect on the substantive issues. Tenn. R. Evid. 609; State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). Two factors should be considered when deciding whether the probative value of a prior conviction outweighs its unfair prejudicial effect. Id. First, “[a] trial court should . . . analyze the relevance the impeaching conviction has to the issue of credibility.” Id. (citation omitted). Second, if the trial court finds that the prior conviction is probative of the defendant’s credibility, then the court should “‘assess the similarity between the crime on trial and the crime underlying the impeaching conviction.’” Id. (quoting Neil P. Cohen et al., Tennessee Law of Evidence § 609.9 at 376 (3d ed. 1995)). The more similar the impeaching conviction is to the offense for which the defendant is on trial, the greater the risk of a prejudicial effect to the defendant. Id. We note that, based on the entire interchange between the defendant, defense counsel, and the trial court, the court essentially adopted defense counsel’s assessment of the admissibility of the convictions. In any event, the failure to conduct an official hearing was harmless as the prior convictions would have been properly admitted into evidence given that they were probative of the defendant’s credibility and not similar to the offenses for which he was on trial. X. Jencks Issue The defendant argues that he was denied a fair trial because the State violated the Jencks Act by failing to produce a disc of a conversation between Kimberly Chrestman and the prosecutor. After Chrestman testified at trial, the prosecutor informed the court that he did not have a Jencks statement from the witness because Chrestman did not give a statement to the police. The prosecutor stated, however, that he had a recorded statement from Chrestman saying that she would cooperate with them, something he felt was necessary after Chrestman failed to appear at the preliminary hearings in two other matters. He said that there was nothing on the disc that pertained to the present case other than “that she is going to be willing to cooperate because just a few days prior she had missed a preliminary hearing appointment.” The prosecutor said that he wanted to make the recording available to -16- defense counsel because he did not “want anybody to think [he was] hiding something,” but evidently he failed to provide the disc. Tennessee Rule of Criminal Procedure 26.2(a), commonly referred to as the Jencks Rule, provides, After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony. A “statement” is defined as “[a] written statement that the witness makes and signs, or otherwise adopts or approves” or “[a] substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in a stenographic, mechanical, electrical, or other recording or a transcription of such a statement.” Tenn. R. Crim. P. 26.2(f)(1), (2). From what we glean from the record, it does not appear that the disc constituted Jencks material that would be subject to production by the State. The defense knew that Chrestman had refused to give a statement to police and used her refusal to impeach her credibility on cross-examination. The prosecutor explained that the recording he had was to memorialize that Chrestman was willing to cooperate because her cooperation was in doubt. There is no proof that anything on the disc “relate[d] to the subject matter of the witness’s testimony.” Tenn. R. Crim. P. 26.2(a). XI. Kimberly Chrestman’s Testimony The defendant argues that he was denied a fair trial by Kimberly Chrestman’s “repeated impermissible trial testimony alleging ‘bad acts’ by [the defendant].” He states that Chrestman was instructed by the prosecutor to not make any comments unrelated to the present case, but he points to approximately nineteen different instances of Chrestman, nonetheless, mentioning his “prior bad acts” or referring to his character. We have reviewed the record and note that no objection was made by the defendant to any of the complained-of references. Since no objection was made at trial, the objection to them is waived on appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an -17- error.”). Again, in determining whether an alleged trial error constitutes “plain error,” we consider five factors: (1) the record must clearly establish what occurred at trial; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of the defendant must have been adversely affected; (4) the defendant did not waive the issue for tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.” See Adkisson, 899 S.W.2d at 641-42. Ultimately, the error must have “had an unfair prejudicial impact which undermined the fundamental fairness of the trial.” Id. at 642. We conclude that consideration of the error is not “necessary to do substantial justice” because, of the nineteen references cited by the defendant, fourteen were elicited by the defense on cross or recross examination. Of the five remaining alleged instances that were made during the State’s questioning, two were made during redirect examination and were within the scope of cross-examination. Moreover, many of Chrestman’s responses of which the defendant complains did not concern “bad acts,” but instead were simply factual statements such as “until he went to jail here,” “he sent me from prison,” and “I sent it back to him in jail.” We cannot conclude that any of Chrestman’s responses had an unfair prejudicial impact which undermined the fundamental fairness of the trial. XII. Prosecutorial Misconduct The defendant argues that the State committed prosecutorial misconduct in its closing argument. He alleges approximately fourteen instances where he claims the prosecutor misstated or misled the jury regarding the evidence, commented on the credibility of the evidence and witnesses, used arguments calculated to inflame the jury, or argued facts not in evidence. We have reviewed each of these allegations and note that the defendant did not object to any of the statements at trial. The failure to object to closing argument at trial waives our consideration of this issue on appeal. See Tenn. R. App. P. 36(a); State v. Stephenson, 195 S.W.3d 574, 601 (Tenn. 2006); State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (holding that the defendant’s failure to object to the State’s alleged misconduct during closing argument waives that issue). Thus, the defendant is not entitled to relief on appeal unless the remarks constitute “plain error.” See Tenn. R. App. P. 36(b); State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). Tennessee courts “have traditionally provided counsel with a wide latitude of discretion in the content of their final argument” and trial judges with “wide discretion in control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). A party’s closing argument “must be temperate, predicated on evidence introduced during the trial, relevant to the issues being tried, and not otherwise improper under the facts or -18- law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The five generally recognized areas of prosecutorial misconduct in closing argument occur when the prosecutor intentionally misstates the evidence or misleads the jury on the inferences it may draw from the evidence; expresses his or her personal opinion on the evidence or the defendant’s guilt; uses arguments calculated to inflame the passions or prejudices of the jury; diverts the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions on the consequences of the jury’s verdict; and intentionally refers to or argues facts outside the record, other than those which are matters of common public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003). We have reviewed the relevant portions of the transcript of the closing argument and determined that all of the prosecutor’s statements were within the bounds of acceptable argument. As such, we conclude that there was no clear and unequivocal rule of law breached in this case and, accordingly, no plain error. XIII. Jury Instructions The defendant argues that the trial court failed to give proper jury instructions. Specifically, he asserts that the court failed to charge all of the lesser-included offenses of aggravated assault; did not give instructions on the missing witness rule, the cancellation rule, the physical facts rule, and duress and necessity; and gave an “unconstitutional flight instruction.” “It is well-settled in Tennessee that a defendant has a right to a correct and complete charge of the law so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). Accordingly, trial courts have the duty to give “a complete charge of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). An instruction will be considered prejudicially erroneous only if it fails to submit the legal issues fairly or misleads the jury as to the applicable law. State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). A. Instruction on Lesser-Included Offenses of Aggravated Assault The defendant contends that the trial court should have given “the full instruction as to lesser included offenses of [a]ggravated [a]ssault,” specifically the offense of assault by extremely offensive or provocative physical contact. We note that in a discussion -19- concerning the jury charge, the trial court discussed which lesser-included offenses it planned to charge and said that it planned to charge assault. The trial court did indeed charge the jury on assault, but only assault by causing bodily injury to another or causing another to be in reasonable fear of imminent bodily injury, see Tenn. Code Ann. § 39-13- 101(a)(1), (2), not assault by causing extremely offensive or provocative physical contact, see id. § 39-13-101(a)(3). However, we conclude that the court’s failure to include this method of assault in its charge is harmless because of the overwhelming proof that the victim suffered bodily injury or was in reasonable fear of bodily injury, which indicates that no rational trier of fact would have found that the defendant contacted the victim in an offensive or provocative way. B. Instruction on the Missing Witness Rule The record shows that the defendant requested an instruction on the missing witness rule and, during their discussion, the court informed the defendant that Marris Orange was not a “missing witness” if she had not been subpoenaed to be in court. The defense conceded that it did not subpoena her, and the State explained that it had tried to locate her but was unsuccessful. A party may comment about an absent witness when the evidence shows “that the witness had knowledge of material facts, that a relationship exists between the witness and the party that would naturally incline the witness to favor the party and that the missing witness was available to the process of the Court for the trial.” Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). The proponent of the instruction bears the burden of establishing these prerequisites. See State v. Bough, 152 S.W.3d 453, 463 (Tenn. 2004). Here, the defendant failed to prove that Marris Orange was available to the process of the court for trial as the defense failed to subpoena the witness, and the State informed the court that it had attempted to locate her but was unsuccessful. Because the requirements outlined in Delk were not met, the trial court did not err in declining to give an instruction on the missing witness rule. C. Instructions on the Cancellation Rule, Physical Facts Rule, and Duress and Necessity As to the defendant’s complaint that the trial court failed to give instructions on the cancellation rule, the physical facts rule, and duress and necessity, it appears that the defendant did not request such instructions. -20- Tennessee Code Annotated section 40-18-110 provides in pertinent part: (b) In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge. (c) Notwithstanding any other provision of law to the contrary, when the defendant fails to request the instruction of a lesser included offense as required by this section, the lesser included offense instruction is waived. Absent a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal. Tenn. Code Ann. § 40-18-110(b)-(c). We, therefore, review this issue under the doctrine of plain error. See State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006). We cannot conclude that the trial court’s failure to provide instructions on the cancellation rule, the physical facts rule, and duress and necessity rises to the level of plain error because it is not clear that the defendant was entitled to the instructions; thus, there was no breach of a clear and unequivocal rule of law. The defendant’s reasons supporting an instruction on the cancellation and physical facts rules simply go to the credibility of the witnesses’ testimony. His reason supporting an instruction on duress and necessity, because Chrestman was smoking crack cocaine, is very attenuated and does not clearly entitle him to such instructions. D. Flight Instruction The defendant complains that the trial court gave an “unconstitutional flight instruction.” He apparently argues that the portion of the instruction saying, “The flight of a person accused of a crime is a circumstance which, when considered with all the facts of the case, may justify an inference of guilt[,]” unconstitutionally shifted the burden of proof to him. Given that the flight instruction has never been deemed unconstitutional, we cannot conclude that there was a breach of a clear and unequivocal rule of law or, thus, any plain error. XIV. Sentencing The defendant argues that the trial court erred in its sentencing determination; -21- specifically, in finding that he did not present any mitigating factors, in imposing a seven- year sentence, and in denying him probation. Under the 2005 amendments to the sentencing act, a trial court is to consider the following when determining a defendant’s sentence and the appropriate combination of sentencing alternatives: (1) The evidence, if any, received at the trial and the sentencing hearing; (2) The presentence report; (3) The principles of sentencing and arguments as to sentencing alternatives; (4) The nature and characteristics of the criminal conduct involved; (5) Evidence and information offered by the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114; (6) Any statistical information provided by the administrative office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) Any statement the defendant wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2010). The trial court is granted broad discretion to impose a sentence anywhere within the applicable range, regardless of the presence or absence of enhancement or mitigating factors, and “sentences should be upheld so long as the statutory purposes and principles, along with any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing determinations under an abuse of discretion standard, “granting a presumption of reasonableness to within-range sentencing decisions that reflect a proper application of the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our supreme court clarified that the “abuse of discretion standard, accompanied by a presumption of reasonableness, applies to within-range sentences that reflect a decision based upon the purposes and principles of sentencing, including the questions related to probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012). -22- Under the revised Tennessee sentencing statutes, a defendant is no longer presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the “advisory” sentencing guidelines provide that a defendant “who is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be considered as a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). A defendant shall be eligible for probation, subject to certain exceptions, if the sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant is not, however, automatically entitled to probation as a matter of law. The burden is upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the defendant “must demonstrate that probation will ‘subserve the ends of justice and the best interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)). There is no bright line rule for determining when a defendant should be granted probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires a case-by-case analysis. Id. Factors to be considered include the circumstances surrounding the offense, the defendant’s criminal record, the defendant’s social history and present condition, the need for deterrence, and the best interest of the defendant and the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456. In determining if incarceration is appropriate in a given case, a trial court should consider whether: (A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or (C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. -23- Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for rehabilitation or lack thereof should be examined when determining whether an alternative sentence is appropriate. Id. § 40-35-103(5). Our review of the record reveals nothing that rebuts the presumption of reasonableness afforded to the trial court. The information contained in the presentence report and presented at the sentencing hearing shows that the court acted properly within its discretion in determining that no mitigating factors existed in this case and in imposing a seven-year sentence. Moreover, among other things, the defendant’s classification as a multiple offender, indicating that he is not a favorable candidate for an alternative sentence, and the fact that measures less restrictive than confinement had been applied unsuccessfully to the defendant, supports the imposition of a sentence of confinement. The record supports the trial court’s determinations. XV. Revocation of Bond At a bond revocation hearing on August 10, 2010, the prosecutor informed the court that defense counsel was unavailable and had requested another court date. An unidentified attorney then also apprised the court that defense counsel was not present and had asked for another court date. The court set August 18, 2010 as the next court date, after which the prosecutor made “an oral motion for a bond revocation [because] [t]he defendant ha[d] a new arrest” since the last court date. The court ruled, “His bond is revoked until [defense counsel] comes in because I do need to see him.” The defendant argues that the trial court erred in revoking his bond, upon an oral motion by the State, without his counsel being present. The defendant is not entitled to relief, however, because he failed to seek review of the bond revocation under Tennessee Rule of Appellate Procedure 8, the appropriate avenue for seeking such relief. See Tenn. R. App. P. 8(a); see also State v. Moore, 262 S.W.3d 767, 771 (Tenn. Crim. App. 2008); State v. Johnny Owens and Sarah Owens, No. W2001-01397-CCA-R3-CD, 2002 WL 31624774, at 18 (Tenn. Crim. App. Nov. 8, 2002), perm. app. denied (Tenn. Feb. 18, 2003). CONCLUSION Based on the foregoing authorities and reasoning, we conclude that the trial court erred in constructively amending the indictment in its charge to the jury and that the defendant’s convictions must be reversed and the case remanded for a new trial. In the event of further appellate review, we have assessed the defendant’s remaining issues and discern -24- no additional error. _________________________________ ALAN E. GLENN, JUDGE -25-	{ "pile_set_name": "FreeLaw" }
3 Ariz. App. 162 (1966) 412 P.2d 731 SELECTIVE LIFE INSURANCE COMPANY, a corporation, Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a corporation, Appellee. 1 CA-CIV 147. Court of Appeals of Arizona. March 31, 1966. Rehearing Denied April 22, 1966. Review Granted June 7, 1966. 163 Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, Phoenix, for appellant. Evans, Kitchel & Jenckes, by Edward C. LeBeau, Phoenix, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Wilbert G. Anderson, Phoenix, for appellee. Snell & Wilmer, Phoenix, filed brief amicus curiae on behalf of Life Ins. Ass'n of America. CAMERON, Judge. This is an appeal from a judgment of the lower court in favor of the plaintiff-appellee foreclosing a first mortgage on Arizona real property. We are called upon to answer the following question: Does a certificate from the Director of Insurance alone authorize a foreign insurance corporation to do business as an insurance corporation in the State of Arizona? The facts necessary for a determination of this matter on appeal are as follows: Plaintiff, Equitable Life Assurance Society of the United States, hereinafter referred to as Equitable, was authorized to write life and disability insurance business by virtue of a Certificate of Authority issued on 1 April, 1963, by George A. Bushnell, Director of Insurance, State of Arizona. Equitable, a New York corporation, was doing business in Arizona on the date the mortgage was executed and on the date it brought suit to foreclose the mortgage. Appellant, Selective Life Insurance Company, hereinafter referred to as Selective, held an inferior mortgage on the same piece of property foreclosed by Equitable, and also had a judgment lien against the subject property. It is the contention of Selective that Equitable has not complied with the laws of the State of Arizona, and was not qualified to do business in the State on the date that its mortgage was executed, and that therefore the mortgage is void. (Article 14, Sec. 17, Constitution of Arizona, A.R.S., A.R.S. 10-482, National Union Indemnity Co. v. Bruce Brothers Inc., 44 Ariz. 454, 38 P.2d 648 [1934]). If this contention is correct, Selective's mortgage and judgment lien would be superior to any interest of Equitable. It is admitted that although Equitable has a Certificate of Authority to write life and disability insurance business in the State of Arizona, by the Director of Insurance, Equitable does not have a license from the Corporation Commission to do business as a corporation within the State of Arizona. A discussion of the background of the laws involved is proper at this time. Prior to 1955, the Department of Insurance was a division of the Arizona Corporation Commission. Article 14, Section 17 of the Arizona Constitution states in part as follows: "No foreign corporation shall have authority to do business in this State, until it shall have obtained from the Corporation Commission a license to do business in the State, upon such terms as may be prescribed by law. * " 164 Article 15, Section 5 of the Arizona Constitution states as follows: "The Corporation Commission shall have the sole power to issue certificates of incorporation to companies organizing under the laws of this State, and to issue licenses to foreign corporations to do business in this State, as may be prescribed by law." It should be noted that we are not here concerned with the power of the Corporation Commission to regulate foreign insurance companies as it does public service corporations, for as our Supreme Court has stated: "Article 15 of the Constitution does not, in terms, confer on the corporation commission power to regulate the business of insurance like it does the business of public service corporations. The commission's power to regulate the insurance business, except to the limited extent indicated in sections 4 and 5 of said article, is statutory, chapter 36, Revised Code of 1928 (section 1773 et seq.), and receives its sanction under the police power of the state. (Citations omitted)." Wylie v. Phoenix Assurance Co. Ltd., 42 Ariz. 133 at 138, 22 P.2d 845 at 847 (1933). The first Arizona legislature enacted a statute dealing with foreign insurance companies, and specifically authorized the Corporation Commission to issue Certificates of Authority to foreign insurance companies. During the ensuing 30 years as the state grew, so did the responsibility of the Corporation Commission. In 1945, the legislature mentioned for the first time the office of the Director of Insurance, providing that: "b. The commission shall appoint a director of insurance who shall have supervision under the commission * ." 1945 Session Laws, page 254. Two years later this statute was amended to read as follows: "61-301, CORPORATION COMMISSION TO ENFORCE INSURANCE LAWS "(a) The corporation commission shall administer the laws relating to insurance companies, and shall promulgate rules and regulations for the effective execution of such laws and the protection of the insuring public. "(b) The commission shall have the sole power to issue certificates of incorporation, certificates of authority and licenses to corporations and organizations to do insurance business, and to impose fines and other penalties as provided by this chapter." 61-301 A.C.A. 1939. "61-301a, DIRECTOR OF INSURANCE "a The commission shall appoint a director of insurance who shall have supervision, subject to the authority of the commission, of the administration of laws relating to insurance as prescribed in this chapter and regulations promulgated by the commission pursuant thereto." 61-301a, A.C.A. 1939. The authority and status of the Director of Insurance remained legislatively unchanged until 1955 when Sections 20-141 and 20-142, Arizona Revised Statutes, were enacted. 20-141 provided there should be a Director of Insurance, appointed by the Commission (Corporation Commission) subject to approval by the State Senate, and that the Commission might remove the Director for cause. The statute also provided that: "A. The director shall enforce the provisions of, and execute the duties imposed upon him by, this title." 20-142 A.R.S. Section 20-101, entitled "Commission Defined", states: "Unless the context otherwise requires, `commission' means the corporation commission or such other authority as may by law have original jurisdiction over the appointment of the director of insurance." 20-101 A.R.S. Although the connection with the Corporation Commission was maintained in this legislation, the authority of the Commission over the Director of Insurance was 165 primarily by way of appointment and also review, in that the Director of Insurance was required to prepare and file a report once a year to the Corporation Commission. The Commission also could remove the Director of Insurance for cause. In 1956, the Arizona Supreme Court discussed this statute and made the following statement: "In 1954 the old insurance code was repealed and a new one adopted. Under the new code the director is appointed by the corporation commission subject to approval by the senate but he now acts as exclusive head of the department of insurance and is delegated the following duties, (citations omitted) * * . By section 61-1404, 1954 Supp., A.C.A. 1939 A.R.S. § 20-143], he is granted the power to make necessary rules and regulations for effectuating any provision of the insurance code. In effect, the obvious intent of the legislature in the passage of this new insurance code was the creation of a distinct department of insurance, the function of which is that of an administrative body to control the administration of insurance matters as they relate to the state." Williams v. Bankers National Insurance Company, 80 Ariz. 294, 296, 297, 297 P.2d 344, 346 (1956). Selective relies heavily on this case and contends that if it should be decided that the statutes created a separate insurance department completely divorced from the Corporation Commission, then Equitable would have to comply not only with the insurance regulations of the Department of Insurance, but under our Constitution, would have to also comply with the requirements of the Corporation Commission in obtaining a permit to do business as a foreign corporation in the State of Arizona. Equitable points out that it is not transacting a general corporate business in Arizona, but is merely doing business as an insurance corporation and, as such it is entitled not only to write policies of insurance, but also, as a part of its normal business as an insurance company, it is entitled to make mortgage loans. Metropolitan Life Insurance Company v. Whitstone Management Company, 7 Cir., 77 F.2d 255 (1935), Fidelity Mutual Life Insurance Company v. Sims, 140 W. Va. 49, 82 S.E.2d 312 (1954). Equitable also asserts that a plain reading and comparison of the general corporation law indicates that the legislature had not intended to require double qualification by foreign insurance corporations. Equitable cites 10-481 A.R.S., which reads in part as follows: "A. A foreign corporation before entering upon, doing or transacting any business, conducting any enterprise, or engaging in any occupation in this state shall: * " * * * * * "E. This section shall not apply to insurance corporations, nor to any corporation transacting in this state only the business of lending funds to religious, social or benevolent associations." We do not feel that the legislature intended that a foreign insurance company licensed to do business by the Director of Insurance should be required to also comply with other provisions of the Corporation Commission for obtaining permits to do business in the State of Arizona. By Section 10-481, Subsection E, A.R.S., the legislature clearly indicated its intent that foreign insurance corporations be regulated only by the Director of Insurance. It is Selective's position that as long as the Insurance Department was under the Corporation Commission, the Insurance Department could license foreign insurance corporations, and not be in derogation of the constitutional mandate concerning the power of the Corporation Commission to license foreign corporations. Article 14, Section 17; Article 15, Section 5, Arizona Constitution, A.R.S. Selective contends, however, that any attempt by the legislature to take away the power of the Corporation Commission to license foreign 166 corporations would be unconstitutional. Selective therefore contends that the statute (10-481 A.R.S.) is unconstitutional as taking away from the Corporation Commission the rights given to it by the Constitution of Arizona. Our Supreme Court has repeatedly pronounced rules pertaining to the constitutionality of acts of the legislature, and the measure of the burden on him who would upset such acts: "We are ever alert to the rule of this court that no act of the legislature will be declared unconstitutional unless we are convinced beyond a reasonable doubt that it contravenes the Constitution. State v. Harold, 1952, 74 Ariz. 210, 246 P.2d 178, 180." State ex rel. Morrison v. Nabours, 79 Ariz. 240, 245, 286 P.2d 752, 755 (1955). And: "It is well settled in Arizona that there is a presumption in favor of the constitutionality of a legislative enactment." State of Arizona v. Krug, 96 Ariz. 225 at 228, 393 P.2d 916 at 918 (1964). We do not feel that the statement made in Williams v. Bankers National Insurance Company, supra, may be construed to negate the control which the Corporation Commission has over the Director of Insurance. It is true that the Insurance Department may be a separate and distinct department, but it is a separate and distinct department within and under the control of the Corporation Commission. The power to appoint and remove is also the power to control, and in the instant case construing the statute in the light most favorable to upholding the constitutionality of said statute, we feel that the Director of Insurance is a part of the Corporation Commission for the purpose of licensing foreign insurance corporations and that therefore the legislature has not unconstitutionally stripped the Corporation Commission of its power over foreign insurance corporations. By the power to appoint and remove for cause, by requiring a written report to be filed by the Director with the Commission, the Corporation Commission still exercises a control over the actions of the Director of Insurance. We cite with approval the following statement from the United States District Court for the District of Arizona: "The only reasonable interpretation of the legislation is that the Legislature, in its wisdom, concluded that a distinct department of Insurance was necessary and intended that such Department should be an administrative branch of the Corporation Commission, with the acts of the Director of Insurance to be viewed as the acts of the Corporation Commission itself. In construing the legislation, I am bound to place thereon a construction such as will accomplish the legislative intent, and, if possible, avoid an absurd conclusion or a construction which would render the statute invalid or unconstitutional. State v. Airesearch Manufacturing Co., 68 Ariz. 342, 206 P.2d 562. " * * I am in complete agreement with defendants' contention that the legislature never intended that the Director of Insurance should be viewed as any thing other than an agent of the Corporation Commission. It follows that the act of the Director of Insurance in issuing a certificate of authority to Massachusetts Bonding to transact business in the State, is, in truth and in fact, the act of the Corporation Commission." Osborne v. Massachusetts Bonding and Insurance Company, 229 F. Supp. 674, 677, U.S. District Court, District of Arizona (1964). The judgment of the lower court is affirmed. DONOFRIO, J., and THOMAS TANG, Superior Court Judge, concur. NOTE: Chief Judge Henry S. Stevens having requested that he be relieved from consideration of this matter, Judge Thomas Tang was called to sit in his stead and participate in the determination of this decision.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-40367 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR MANUEL DOMINGUEZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas (USDC No. L-95-CR-241-01) December 3, 1996 Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges. PER CURIAM:* Victor Manuel Dominguez appeals his conviction for possession of marijuana with intent to distribute. He rests his argument on the Fourth Amendment and contends that the district court erred when it decided not to suppress three bags of marijuana that police discovered at his home. * Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Law enforcement officials received an anonymous tip that Dominguez had stored marijuana in the attic of his residence. When they arrived at his house, they found that Dominguez was not at home. The officers informed Dominguez’s wife that they had reason to believe that marijuana was being stored in the house, and she gave written consent for police officers to conduct “un registro completo” — a complete search — of the structure. When asked, she informed them that the house did not have an attic. The officers quickly discovered, however, a two-foot by four-foot piece of sheetrock covering part of the ceiling of an interior hallway and held in place by a single screw. They easily removed the screw, detached the sheetrock, and retrieved nearly sixty kilograms of marijuana from the crawl space between the ceiling and the roof. In the face of this evidence, Dominguez pled guilty to one count of possession with intent to distribute. Dominguez does not challenge the effectiveness of his wife’s consent. His only argument is that the search of the space between the ceiling and the roof fell outside of the scope of her consent. After conducting a suppression hearing, the district court issued an order upholding the legality of the search. We agree with the district court that the consent given by Dominguez’s wife permitted the officers to search above the ceiling by removing a single screw from the sheetrock panel. We inquire: “what would the typical reasonable person have understood by the exchange between the officer[s] and [Ms. Dominguez]?” Florida v. 2 Jimeno, 500 U.S. 248, 251 (1991). This question would be more difficult if the officers had needed to resort to “structural dismantling” in order to gain access to the area above the ceiling. See United States v. Ibarra, 965 F.2d 1354, 1355 (5th Cir. 1992) (en banc) (affirming by an evenly divided court the suppression of evidence obtained by taking a sledgehammer to boards that had been used to seal off the entrance to an attic). But there was nothing destructive about the officers’ efforts. There was no more reason to think that Ms. Dominguez would object to removing the sheetrock panel than to think that she would object to looking behind a piece of furniture. And the officers did not have a duty to conduct their search in plain view of Ms. Dominguez so that she could narrow her consent as the officers proceeded through the house. United States v. Rich, 992 F.2d 502, 507 (5th Cir.), cert. denied, 510 U.S. 933 (1993). Ms. Dominguez understood English, and one of the officers spoke Spanish; Ms. Dominguez could have withdrawn or limited her consent at any time. Consequently, a reasonable on-looker would have understood her consent to a complete search to include a search of the area above the ceiling so long as the officers did not cause property damage in conducting their search. See also United States v. Flores, 63 F.3d 1342, 1362 (5th Cir. 1995) (holding that consent to search a vehicle included consent to unscrewing two screws in order to remove vent panels), cert. denied, 117 S. Ct. 87 (1996); United States v. Saadeh, 61 F.3d 510, 518 (7th Cir.) (holding that consent 3 to search the general premises included consent to search inside of a locked tool box and a desk drawer), cert. denied, 116 S. Ct. 521 (1995). AFFIRMED. 4	{ "pile_set_name": "FreeLaw" }
537 S.E.2d 1 (2000) 33 Va. App. 754 Elvis Gene DePRIEST v. COMMONWEALTH of Virginia. Larry Rierson Jones v. Commonwealth of Virginia. Russell Newaii Poindexter v. Commonwealth of Virginia. James Patrick Fay v. Commonwealth of Virginia. Phillip Wayne Evans v. Commonwealth of Virginia. Barry Wayne Hodges v. Commonwealth of Virginia. John Johnson, s/k/a John William Johnson v. Commonwealth of Virginia. Lawrence T. Martys, s/k/a Lawrence P. Martys v. Commonwealth of Virginia. Everette Elmo Davidson v. Commonwealth of Virginia. Ronald Waller, s/k/a Ronald Thomas Waller v. Commonwealth of Virginia. Record Nos. 1587-99-3, 1595-99-3, 1596-99-3, 1597-99-3, 1598-99-3, 1599-99-3, 1600-99-3, 1601-99-3, 1619-99-3, 1920-99-3. Court of Appeals of Virginia, Salem. November 21, 2000. 2 Sam Garrison (David Denton Lawrence; Michael B. Massey; Trumbo & Massey, P.L.C., Richard Lee Lawrence & Associates, on briefs), Roanoke, for appellants. John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Amicus Curiae: Log Cabin Republican Club of Northern Virginia (William G. Kocol; Eugene M. Lawson, Jr., Resident Counsel, on brief), for appellants. Amicus Curiae: The Liberty Project (Julie M. Carpenter; Jared O. Freedman; Elena N. Broder-Feldman; Jenner & Block, Washington, DC, on brief), for appellants. Amicus Curiae: American Civil Liberties Union Foundation, American Civil Liberties Union of Virginia, Inc., and Lambda Legal Defense and Education Fund, Inc. (Michael Adams; Matthew Coles; Marianne Merritt; Philip Hirschkop, Alexandria; Rebecca K. Glenberg, Richmond; Stephen R. Scarborough, Atlanta, GA; Hirschkop & Associates, P.C., Alexandria, on brief), for appellants. Present: COLEMAN, WILLIS and ELDER, JJ. WILLIS, Judge. These ten consolidated appeals are from judgments of conviction in the Circuit Court of the City of Roanoke for solicitation to commit oral sodomy in violation of Code §§ 18.2-29 and 18.2-361.[1] The appellants contend that the trial court erred in ruling that Code § 18.2-361: (1) does not violate the fundamental right to privacy guaranteed by Article I of the Constitution of Virginia; (2) does not violate the prohibitions against cruel and unusual punishment contained in Article I, Section 9, of the Constitution of Virginia and in the Eighth Amendment to the Constitution of the United States; and (3) does not violate the prohibitions against an establishment of religion contained in Article I, Section 16, of the Constitution of Virginia and in the First Amendment to the Constitution of the United States. The Commonwealth contends that the appellants lack standing to attack the constitutionality of Code § 18.2-361 facially and that each may assert the statute's constitutional invalidity only as the statute applies to him in his respective case. We affirm the judgments of the trial court. I. BACKGROUND Each appellant moved to dismiss the indictment against him, contending that Code 3 § 18.2-361 is unconstitutional on its face. Each argued, inter alia, that the statute denies the fundamental right to privacy guaranteed by the Constitution of Virginia, that it violates the prohibition against an establishment of religion contained in the First Amendment to the Constitution of the United States and in Article I, Section 16, of the Constitution of Virginia, and that it violates the prohibition against cruel and unusual punishment contained in Article I, Section 9, of the Constitution of Virginia and the Eighth Amendment to the Constitution of the United States. After conducting a joint evidentiary hearing and receiving post-hearing briefs, the trial court denied the motions. This appeal addresses the trial court's ruling. At the hearing on their respective motions to dismiss, appellants called as a witness Roanoke City Police Lieutenant R.E. Carlisle, commander of the police Vice Bureau. Lieutenant Carlisle testified that the police had received numerous complaints of sexual activities in public places, including complaints that members of the public found used condoms littering the ground in city public parks. He testified that children had found condoms, in some cases thinking they were balloons. Responding to the foregoing complaints, Lieutenant Carlisle sent plainclothes police officers to surveil the public parks. They observed homosexual "cruising" occurring in and between Smith Park and Wasena Park and in the public restroom in Wasena Park. Based on this information, Lieutenant Carlisle sent several male undercover officers into the parks to investigate solicitation to commit sodomy. He instructed the officers: (1) they were not to entrap anyone; (2) they were to investigate "based on their training and see if anyone would offer to commit an act against them, or pay to commit an act against them"; and (3) to be charged, a person "had to show a willingness to carry out the act in the park." The charges that led to these appeals were made pursuant to those guidelines. One person proposed committing oral sodomy in a private place. That person was not charged. The appellants also called as witnesses a number of sex therapists, clergymen and lay people, who testified to the prevalence, popularity and harmlessness of oral sex between consenting adults, married and unmarried, "gay" and "straight," in their own lives and in modern American culture. The trial court issued a memorandum opinion explaining its denial of the motions to dismiss. The court first held that Code § 18.2-361 did not constitute an establishment of religion or impose cruel and unusual punishment. It further held that, as applied to the appellants in these cases, Code § 18.2-361 violated no right to privacy recognized by the United States or Virginia Constitutions. It ruled that the appellants lacked standing to complain of the potential application of the statute to other persons or to their private activities. After the motions to dismiss were denied, nine of the appellants pled guilty and were tried jointly. The evidence in each case, as summarized by the assistant Commonwealth's attorney, disclosed that the respective appellant and an undercover police officer met in a public park and struck up a conversation that led to the appellant's proposing to engage in oral sodomy with the officer. In no case did the appellant specify that the act would occur other than in the public park. In four cases, the appellants reached for and fondled the officers' crotch areas while engaging in those discussions. In another case, the appellant exposed himself to the officer while masturbating in a public restroom. In one case, the appellant suggested "find[ing] a place where no one would see us" before performing fellatio on the officer. In appellant Waller's jury trial, the arresting officer testified that he struck up a casual conversation with Waller while both were standing by the river in Wasena Park. Waller then "grabbed" the officer's genitals and fondled him while discussing sex acts and proposing that they commit oral sodomy at a different spot in the park. The appellants contend that they have standing to challenge the constitutionality of Code § 18.2-361 on its face rather than only as applied to them. They further contend that Code § 18.2-361 imposes cruel and unusual 4 punishment and constitutes an establishment of religion. Because the appellants lack standing to attack Code § 18.2-361 on its face and because the statute neither imposes cruel and unusual punishment nor constitutes an establishment of religion, we affirm the judgments of the trial court. II. STANDING Appellants first contend that Code § 18.2-361 violates the right to privacy as guaranteed by Article I, Section 1, of the Constitution of Virginia, which provides: Equality and rights of menThat all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. In Young v. Commonwealth, 101 Va. 853, 45 S.E. 327 (1903), the Supreme Court explained the meaning of the liberty guarantee as follows: The word "liberty," as used in the Constitution of the United States and the several States, has frequently been construed, and means more than mere freedom from restraint. It means not merely the right to go where one chooses, but to do such acts as he may judge best for his interest, not inconsistent with the equal 'rights of others; that is, to follow such pursuits as may be best adapted to his faculties, and which will give him the highest enjoyment. The liberty mentioned is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purpose above mentioned. These are individual rights, formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence, which begins with the fundamental proposition that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. Id. at 862-63, 45 S.E. at 328-29 (citations omitted) (emphasis added). The constitutional right to liberty is not an unlimited license. Liberty must be enjoyed and exercised lawfully and in a manner not inconsistent with the equal rights of others. An individual may challenge the constitutionality of a law only as it applies to him or her. See Coleman v. City of Richmond, 5 Va.App. 459, 463, 364 S.E.2d 239, 241-42 (citation omitted), reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988). "That the statute may apply unconstitutionally to another is irrelevant; one cannot raise third party rights." Id. at 463, 364 S.E.2d at 242. See also Pedersen v. City of Richmond, 219 Va. 1061, 1066, 254 S.E.2d 95, 98 (1979) (finding one lacks standing to assert the privacy rights of third parties). The appellants contend that they fall within an exception to the general standing rule. In the past, the [United States Supreme Court] has recognized some limited exceptions to these principles, but only because of the most "weighty, countervailing policies." One such exception is where individuals not parties to a particular suit stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves. Another exception has been carved out in the area of the First Amendment. Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973) (citations omitted); see also Santillo v. Commonwealth, 30 Va.App. 470, 477 n. 3, 517 S.E.2d 733, 736 n. 3 (1999) (stating an exception to the general standing rule is in the area of First Amendment challenges). This is not a First Amendment case. See Pedersen, 219 Va. at 1066, 254 S.E.2d at 98. Contrary to the appellants' argument, sex therapists, married persons, and consenting adults engaging privately in sexual conduct (persons not involved in this case) do not stand to lose by the outcome of this case. They retain an "effective avenue of preserving 5 their rights themselves." Any such person proposing or engaging in sodomy under circumstances supporting a claim of privacy may, upon discovery and accusation, assert, in his defense, those circumstances and that claim. We conclude, therefore, that appellants fall within the general rule that a party attacking the constitutionality of a statute must demonstrate that his own, rather than a third party's, rights are unconstitutionally infringed. Accordingly, appellants lack standing to challenge facially the constitutionality of Code § 18.2-361. Thus, we consider the constitutionality of the statute only as it applies to the appellants in this case and to their conduct that underlay their convictions. III. PRIVACY Appellants contend that by inhibiting their ability to engage in homosexual conduct with other similarly disposed persons, Code § 18.2-361 infringes their right to privacy. In so arguing, they assert the privacy rights of married persons and of persons who, unlike them, may engage in such conduct in private. But the appellants' conduct was not private. Whatever may be the constitutional privacy rights of one who engages in sodomy in private, those rights do not attach to one who does the same thing in public. See Lovisi v. Slayton, 363 F.Supp. 620 (E.D.Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 (1976). Lovisi involved a challenge to the constitutionality of the predecessor to Code § 18.2-361. Mr. and Mrs. Lovisi engaged in sodomy with a third person in their home. They permitted themselves to be photographed committing those acts. The pictures fell into the hands of their children and became public. Lovisi claimed the statute unconstitutionally invaded his right of privacy. The court held that through publication Lovisi's acts ceased to be "private." The court said: The Court is faced with the .. question of whether, if the Lovisis' conduct was not constitutionally protected, they may attack the constitutionality of [the statute] on the basis of the rights of third persons .. The Court ... holds that they do not have standing to assert the constitutional rights of other persons and thus may not attack the constitutionality of statutes underlying their conviction on this basis. Id. at 623-24. The activities underlying the charges against the appellants were not conducted in private. Their solicitations were made to strangers in public parks. They proposed to commit sodomy in the public parks. The appellants' acts and their proposed conduct were clothed with no circumstance giving rise to a supportable claim of privacy. Those acts and proposed conduct fall squarely within the rule of Lovisi. IV. CRUEL AND UNUSUAL PUNISHMENT The appellants next contend that Code § 18.2-361 violates the prohibitions against "cruel and unusual punishment" contained in Article I, Section 9, of the Constitution of Virginia[2] and the Eighth Amendment to the Constitution of the United States.[3] They argue that the disparity between the punishment provided for sodomy and that provided for adultery or fornication effects the imposition of cruel and unusual punishment upon those convicted of sodomy. We disagree. It lies within the province of the legislature to define and classify crimes and to determine the punishments for those crimes. Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582 (1921). No punishment authorized by statute, even though severe, is cruel and unusual unless it is one "prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience. . . ." Id. at 745, 109 S.E. at 588. We find our consciences shocked neither *6 by appellants' sentences[4] nor by the five-year maximum sentence provided by the statute. Therefore, we find no imposition of cruel or unusual punishment. V. ESTABLISHMENT OF RELIGION Finally, the appellants contend that Code § 18.2-361 violates the prohibition against an "Establishment of Religion" contained in Article I, Section 16, of the Constitution of Virginia[5] and the First Amendment to the Constitution of the United States.[6] We disagree. The appellants produced testimony concerning the religious origins and development of the law against sodomy. They argue that its religious origin renders Code § 18.2-361 unconstitutional. Although Code § 18.2-361 may have a basis in religious values, this alone is not dispositive of the constitutional issue. In rejecting a constitutional challenge to Maryland's Sunday closing laws, the Supreme Court held in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961): However, it is equally true that the "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue. Id. at 442, 81 S.Ct. at 1113-14 (citations omitted). The Supreme Court has defined a three-pronged test to determine whether a statute effects an establishment of religion. To be found free of such an establishment, "first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster `an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) (citations omitted). The appellants have failed to prove that the primary effect of Code § 18.2-361 is to advance or inhibit religion. Nor have they proved that Code § 18.2-361 fosters "excessive governmental entanglement with religion." Id. To the contrary, the statute rests plainly on long established secular values concerning sexual conduct. Thus, the appellants have failed to demonstrate that Code § 18.2-361 effects an establishment of religion. We affirm the judgments of the trial court. Affirmed. NOTES [1] Code § 18.2-29 provides, "rainy person who commands, entreats, or otherwise attempts to persuade another person to commit a felony, shall be guilty of a Class 6 felony." Code § 18.2-361, in relevant part, makes it a Class 6 felony any person ... carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge." [2] "[E]xcessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. . . ." Va. Const. art. I, § 9. [3] "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. [4] In nine of the ten cases, the defendants entered conditional pleas of guilty with plea agreements that the appropriate sentences would be twelve months in jail suspended and a $1,000 fine. In the tenth case, the defendant was tried and convicted by a jury, and sentenced to serve sixty days in jail and a fine of $1,500. [5] "[T]he General Assembly shall not ... confer any peculiar privileges or advantages on any sect or denomination...." Va. Const. art. I, § 16. [6] "Congress shall make no law respecting an establishment of religion...." U.S. Const. amend. I.	{ "pile_set_name": "FreeLaw" }
166 U.S. 185 (1897) ADAMS EXPRESS COMPANY v. OHIO STATE AUDITOR. Supreme Court of United States. Received March 1, 1897. Decided March 15, 1897. PETITION FOR REHEARING OF NO. 337 REPORTED 165 U.S. 194; AND NOS. 469, 470 AND 471, REPORTED 165 U.S. 255. 217 MR. JUSTICE BREWER delivered the opinion of the court. We have had before us at the present term several cases involving the taxation of the property of express companies, some coming from Ohio, some from Indiana, and one from Kentucky; also a case from the latter State involving the taxation of the property of the Henderson Bridge Company. The Ohio and Indiana cases were decided on the 1st of February. (165 U.S. 194.) Petitions for rehearing of those cases have been presented and are now before us for consideration. The importance of the questions involved, the close division 218 in this court upon them, and the earnestness of counsel for the express companies in their original arguments, as well as in their briefs on this application, lead those of us who concurred in the judgments to add a few observations to what has hitherto been said. Again and again has this court affirmed the proposition that no State can interfere with interstate commerce through the imposition of a tax, by whatever name called, which is in effect a tax for the privilege of transacting such commerce. And it has as often affirmed that such restriction upon the power of a State to interfere with interstate commerce does not in the least degree abridge the right of a State to tax at their full value all the instrumentalities used for such commerce. Now the taxes imposed upon express companies by the statutes of the three States of Ohio, Indiana and Kentucky are certainly not in terms "privilege taxes." They purport to be upon the property of the companies. They are, therefore, not, in form at least, subject to any of the denunciations against privilege taxes which have so often come from this court. The statutes grant no privilege of doing an express business, charge nothing for doing such a business and contemplate only the assessment and levy of taxes upon the property of the express companies situated within the respective States. And the only really substantial question is whether, property understood and administered, they subject to the taxing power of the State property not within its territorial limits. The burden of the contention of the express companies is that they have within the limits of the State certain tangible property, such as horses, wagons, etc.; that that tangible property is their only property within the State; that it must be valued as other like property, and upon such valuation alone can taxes be assessed and levied against them. But this contention practically ignores the existence of intangible property, or at least denies its liability for taxation. In the complex civilization of to-day a large portion of the wealth of a community consists in intangible property, and there is nothing in the nature of things or in the limitations of the Federal Constitution which restrains a State from taxing 219 at its real value such intangible property. Take the simplest illustration: B, a solvent man, purchases from A certain property, and gives to A his promise to pay, say, $100,000 therefor. Such promise may or may not be evidenced by a note or other written instrument. The property conveyed to B may or may not be of the value of $100,000. If there be nothing in the way of fraud or misrepresentation to invalidate that transaction, there exists a legal promise on the part of B to pay to A $100,000. That promise is a part of A's property. It is something of value, something on which he will receive cash, and which he can sell in the markets of the community for cash. It is as certainly property, and property of value, as if it were a building or a steamboat, and is as justly subject to taxation. It matters not in what this intangible property consists whether privileges, corporate franchises, contracts or obligations. It is enough that it is property which though intangible exists, which has value, produces income and passes current in the markets of the world. To ignore this intangible property, or to hold that it is not subject to taxation at its accepted value, is to eliminate from the reach of the taxing power a large portion of the wealth of the country. Now, whenever separate articles of tangible property are joined together, not simply by a unity of ownership, but in a unity of use, there is not infrequently developed a property, intangible though it may be, which in value exceeds the aggregate of the value of the separate pieces of tangible property. Upon what theory of substantial right can it be adjudged that the value of this intangible property must be excluded from the tax lists, and the only property placed thereon be the separate pieces of tangible property? The first question to be considered therefore is whether there is belonging to these express companies intangible property property differing from the tangible property a property created by either the combined use or the manner of use of the separate articles of tangible property, or the grant or acquisition of franchises or privileges, or all together. To say that there can be no such intangible property, that it is 220 something of no value, is to insult the common intelligence of every man. Take the Henderson Bridge Company's property, the validity of the taxation of which is before us in another case. The facts disclosed in that record show that the bridge company owns a bridge over the Ohio, between the city of Henderson in Kentucky and the Indiana shore, and also ten miles of railroad in Indiana; that that tangible property that is, the bridge and railroad track was assessed in the States of Indiana and Kentucky at $1,277,695.54, such, therefore, being the adjudged value of the tangible property. Thus the physical property could presumably be reproduced by an expenditure of that sum, and if placed elsewhere on the Ohio River, and without its connections or the business passing over it or the franchises connected with it, might not of itself be worth any more. As mere bridge and tracks, that was its value. If the State's power of taxation is limited to the tangible property, the company should only be taxed in the two States for that sum, but it also appears that it, as a corporation, had issued bonds to the amount of $2,000,000, upon which it was paying interest; that it had a capital stock of $1,000,000, and that the shares of that stock were worth not less than $90 per share in the market. The owners, therefore, of that stock had property which for purposes of income and purposes of sale was worth $2,900,000. What gives this excess of value? Obviously the franchises, the privileges the company possesses its intangible property. Now, it is a cardinal rule which should never be forgotten that whatever property is worth for the purposes of income and sale it is also worth for purposes of taxation. Suppose such a bridge were entirely within the territorial limits of a State, and it appeared that the bridge itself cost only $1,277,000, could be reproduced for that sum, and yet it was so situated with reference to railroad or other connections, so used by the travelling public, that it was worth to the holders of it in the matter of income $2,900,000, could be sold in the markets for that sum, was therefore in the eyes of practical business men of the value of $2,900,000, can there be any doubt of the State's power to assess it at that sum, 221 and to collect taxes from it upon that basis of value? Substance of right demands that whatever be the real value of any property, that value may be accepted by the State for purpose of taxation, and this ought not to be evaded by any mere confusion of words. Suppose an express company is incorporated to transact business within the limits of a State, and does business only within such limits, and for the purpose of transacting that business purchases and holds a few thousands of dollars' worth of horses and wagons, and yet it so meets the wants of the people dwelling in that State, so uses the tangible property which it possesses, so transacts business therein that its stock becomes in the markets of the State of the actual cash value of hundreds of thousands of dollars. To the owners thereof, for the purposes of income and sale, the corporate property is worth hundreds of thousands of dollars. Does substance of right require that it shall pay taxes only upon the thousands of dollars of tangible property which it possesses? Accumulated wealth will laugh at the crudity of taxing laws which reach only the one and ignore the other, while they who own tangible property, not organized into a single producing plant, will feel the injustice of a system which so misplaces the burden of taxation. A distinction must be noticed between the construction of a state law and the power of a State. If a statute, properly construed, contemplates only the taxation of horses and wagons, then those belonging to an express company can be taxed at no higher value than those belonging to a farmer. But if the State comprehends all property in its scheme of taxation, then the good will of an organized and established industry must be recognized as a thing of value. The capital stock of a corporation and the shares in a joint stock company represent not only the tangible property, but also the intangible, including therein all corporate franchises and all contracts, privileges and good will of the concern. Now, the same reality of the value of its intangible property exists when a company does not confine its work to the limits of a single State. Take, for instance, the Adams Express Company. According to the return filed by it with the auditor 222 of the State of Ohio, as shown in the records of these cases, its number of shares was $120,000, the market value of each $140 to $150. Taking the smaller sum, gives the value of the company's property taken as an entirety as $16,800,000. In other words, it is worth that for the purposes of income to the holders of the stock and for purposes of sale in the markets of the land. But in the same return it shows that the value of its real estate in Ohio was only $25,170; of real estate owned outside of Ohio $3,005,157.52; or a total of $3,030,327.52; the value of its personal property in Ohio $42,065; of personal property outside of Ohio $1,117,426.05; or a total of $1,159,491.05, making a total valuation of its tangible property $4,189,818.57, and upon that basis it insists that taxes shall be levied. But what a mockery of substantial justice it would be for a corporation, whose property is worth to its stockholders for the purposes of income and sale $16,800,000, to be adjudged liable for taxation upon only one fourth of that amount. The value which property bears in the market, the amount for which its stock can be bought and sold, is the real value. Business men do not pay cash for property in moonshine or dreamland. They buy and pay for that which is of value in its power to produce income, or for purposes of sale. It is suggested that the company may have bonds, stocks or other investments which produce a part of the value of its capital stock, and which have a special situs in other States or are exempt from taxation. If it has, let it show the fact. Courts deal with things as they are, and do not determine rights upon mere possibilities. If half of the property of the Adams Express Company, which by its own showing is worth $16,000,000 and over, is invested in United States bonds, and therefore exempt from taxation, or invested in any way outside the business of the company and so as to be subject to purely local taxation, let that fact be disclosed, and then if the State of Ohio attempts to include within its taxing power such exempted property, or property of a different situs, it will be time enough to consider and determine the rights of the company. That if such facts exist they must be taken into consideration by a State in its proceedings under such 223 tax laws as are here presented has been heretofore recognized and distinctly affirmed by this court. Pittsburgh, Cincinnati &c. Railway Co. v. Backus, 154 U.S. 421, 443; Western Union Telegraph Co. v. Taggart, 163 U.S. 1, 23; Adams Express Co. v. Ohio, 165 U.S. 194, 227. Presumably all that a corporation has is used in the transaction of its business, and if it has accumulated assets which for any reason affect the question of taxation, it should disclose them. It is called upon to make return of its property, and if its return admits that it is possessed of property of a certain value, and does not disclose anything to show that any portion thereof is not subject to taxation, it cannot complain if the State treats its property as all taxable. But where is the situs of this intangible property? The Adams Express Company has, according to its showing, in round numbers $4,000,000 of tangible property scattered through different States, and with that tangible property thus scattered transacts its business. By the business which it transacts, by combining into a single use all these separate pieces and articles of tangible property, by the contracts, franchises and privileges which it has acquired and possesses, it has created a corporate property of the actual value of $16,000,000. Thus, according to its figures, this intangible property, its franchises, privileges, etc., is of the value of $12,000,000, and its tangible property of only $4,000,000. Where is the situs of this intangible property? Is it simply where its home office is, where is found the central directing thought which controls the workings of the great machine, or in the State which gave it its corporate franchise; or is that intangible property distributed wherever its tangible property is located and its work is done? Clearly, as we think, the latter. Every State within which it is transacting business and where it has its property, more or less, may rightfully say that the $16,000,000 of value which it possesses springs not merely from the original grant of corporate power by the State which incorporated it, or from the mere ownership of the tangible property, but it springs from the fact that that tangible property it has combined with contracts, franchises and privileges into a single 224 unit of property, and this State contributes to that aggregate value not merely the separate value of such tangible property as is within its limits, but its proportionate share of the value of the entire property. That this is true is obvious from the result that would follow if all the States other than the one which created the corporation could and should withhold from it the right to transact express business within their limits. It might continue to own all its tangible property within each of those States, but unable to transact the express business within their limits, that $12,000,000 of value attributable to its intangible property would shrivel to a mere trifle. It may be true that the principal office of the corporation is in New York, and that for certain purposes the maxim of the common law was "mobilia personam sequuntur," but that maxim was never of universal application, and seldom interfered with the right of taxation. Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, 22. It would certainly seem a misapplication of the doctrine expressed in that maxim to hold that by merely transferring its principal office across the river to Jersey City the situs of $12,000,000 of intangible property for purposes of taxation was changed from the State of New York to that of New Jersey. It is also true that a corporation is, for purposes of jurisdiction in the Federal courts, conclusively presumed to be a citizen of the State which created it, but it does not follow therefrom that its franchise to be is for all purposes to be regarded as confined to that State. For the transaction of its business it goes into various States, and wherever it goes as a corporation it carries with it that franchise to be. But the franchise to be is only one of the franchises of a corporation. The franchise to do is an independent franchise, or rather a combination of franchises, embracing all things which the corporation is given power to do, and this power to do is as much a thing of value and a part of the intangible property of the corporation as the franchise to be. Franchises to do go wherever the work is done. The Southern Pacific Railway Company is a corporation chartered by the State of Kentucky, yet within the limits of that State it is said to have no tangible *225 property and no office for the transaction of business. The vast amount of tangible property which by lease or otherwise it holds and operates, and all the franchises to do which it exercises, exist and are exercised in the States and Territories on the Pacific Slope. Do not these intangible properties these franchises to do exercised in connection with the tangible property which it holds, create a substantive matter of taxation to be asserted by every State in which that tangible property is found? It is said that the views thus expressed open the door to possibilities of gross injustice to these corporations, through the conflicting action of the different States in matters of taxation. That may be so, and the courts may be called upon to relieve against such abuses. But such possibilities do not equal the wrong which sustaining the contention of the appellant would at once do. In the city of New York are located the headquarters of a corporation, whose corporate property is confessedly of the value of $16,000,000 a value which can be realized by its stockholders at any moment they see fit. Its tangible property and its business is scattered through many States, all whose powers are invoked to protect its property from trespass and secure it in the peaceful transaction of its widely dispersed business. Yet because that tangible property is only $4,000,000 we are told that that is the limit of the taxing power of these States. In other words, it asks these States to protect property which to it is of the value of $16,000,000, but is willing to pay taxes only on the basis of a valuation of $4,000,000. The injustice of this speaks for itself. In conclusion, let us say that this is eminently a practical age; that courts must recognize things as they are and as possessing a value which is accorded to them in the markets of the world, and that no finespun theories about situs should interfere to enable these large corporations, whose business is carried on through many States, to escape from bearing in each State such burden of taxation as a fair distribution of the actual value of their property among those States requires. The petition for a rehearing is Denied.	{ "pile_set_name": "FreeLaw" }
316 S.E.2d 72 (1984) STATE of North Carolina v. Melvin BELL. No. 8A84. Supreme Court of North Carolina. June 5, 1984. Rufus L. Edmisten, Atty. Gen. by John R.B. Matthis, Sp. Deputy Atty. Gen. and James C. Gulick, Asst. Atty. Gen., Raleigh, for the State. *73 Adam Stein, Appellate Defender by Malcolm Ray Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant-appellee. PER CURIAM. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 11/23/2018 12:11 AM CST - 463 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 Elisa Gerber, appellant, v. P & L Finance Co., Inc., a Nebraska corporation, doing business as Elisa Ilana, et al., appellees. ___ N.W.2d ___ Filed November 2, 2018. No. S-17-710. 1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 2. Pleadings. When the title of a filing does not reflect its substance, it is proper for a court to treat a pleading or motion based on its substance rather than its title. 3. Attorney Fees: Statutes: Words and Phrases: Appeal and Error. “Proceeding” as used in Neb. Rev. Stat. § 21-2,114 (Supp. 2017) includes appeals, and therefore, the statute applies to indemnification for attorney fees incurred in an appeal. 4. ____: ____: ____: ____. Because Neb. Rev. Stat. § 21-2,114 (Supp. 2017) provides that a director may apply for indemnification for attor- ney fees “to the court conducting the proceeding” and because “proceed- ing” includes an appeal, § 21-2,114 provides that a director may apply to an appellate court for indemnification related to an appeal that took place in the appellate court. Petition for further review from the Court of Appeals, Moore, Chief Judge, and Pirtle and A rterburn, Judges, on appeal thereto from the District Court for Douglas County, Peter C. Bataillon, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions. Brian E. Jorde and Christian T. Williams, of Domina Law Group, P.C., L.L.O., for appellant. Edward D. Hotz, of Pansing, Hogan, Ernst & Bachman, L.L.P, for appellees P & L Finance Co. and Laurie Langdon. - 464 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 James Polack, P.C., L.L.O., for appellee Paul Gerber. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE We granted appellee Paul Gerber’s petition for further review of the order of the Nebraska Court of Appeals which overruled his motion in which he sought to recover attorney fees from coappellee P & L Finance Co., Inc. (P & L). Paul styled his pleading as a “Motion for Attorney Fees.” However, in the filing, Paul sought an order requiring P & L, of which he is a director, to indemnify him for attorney fees he incurred in the appeal of a case where he was made a party because he was a director. We reverse the order of the Court of Appeals which denied Paul’s request, and we remand the cause to the Court of Appeals with directions to consider the filing as an application for an order for indemnification rather than as a motion for an award of attorney fees. STATEMENT OF FACTS Elisa Gerber filed an action in the district court for Douglas County against P & L seeking, inter alia, issuance of a stock certificate. She also named as defendants Laurie Langdon and Paul, who are directors of P & L. The defendants moved for summary judgment. The district court determined that Elisa’s claim for issuance of a stock certificate was barred by the statute of limitations and, consequently, that her other claims were also barred. The district court granted summary judg- ment in favor of the defendants. Elisa appealed to the Court of Appeals. On April 24, 2018, the Court of Appeals affirmed the district court’s grant of summary judgment in a memorandum opinion. Gerber v. P & L Finance Co., No. A-17-710, 2018 WL 1920600 (Neb. App. Apr. 24, 2018) (selected for posting to court website). After the Court of Appeals filed its decision, Paul filed a motion titled “Motion for Attorney Fees.” Paul, an appellee - 465 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 in the appeal, did not seek an award of attorney fees from the appellant, Elisa. Instead, Paul requested an order requiring another appellee, P & L, to pay his attorney fees. In his motion, Paul made reference to Neb. Ct. R. § 2-109(F) (rev. 2014) (Rule 2-109(F)), which provides in part: Any person who claims the right under the law or a uni- form course of practice to an attorney fee in a civil case appealed to the Supreme Court or the Court of Appeals must file a motion for the allowance of such a fee sup- ported by an affidavit which justifies the amount of the fee sought for services in the appellate court. The affidavit of his attorney setting forth attorney fees in the amount of $ 5,381.25 incurred in connection with the appeal to the Court of Appeals was attached to the motion. Paul also referred to P & L’s articles of incorporation. Paul alleged in the motion that he was made a party to this case based solely on his status as an officer, director, and shareholder of P & L. He further alleged that P & L’s “Articles of Incorporation” provided that P & L indemnify him for attorney fees he incurred in the appeal of this action. Paul cited provisions of the Nebraska Model Business Corporation Act, Neb. Rev. Stat. §§ 21-201 through 21-2,232 (Cum. Supp. 2016 & Supp. 2017), which, he asserted, require that he be indemnified and authorized the Court of Appeals to order such indemnification. P & L and Langdon objected and noted that Rule 2-109(F) provides for an award of attorney fees when a party is enti- tled to such “under the law or a uniform course of prac- tice.” Supplemental brief for appellees P & L and Langdon in response to petition for further review at 1. P & L and Langdon argued that under the law and uniform course of practice in Nebraska, one can recover attorney fees only from an adverse party, not from a “co-party.” Id. at 2. They asserted that Paul’s request should be denied, because Paul was seeking attorney fees from a coparty and “[t]here is no law or uniform course of procedure which recognizes the recovery of attorney fees from a non-adverse party . . . .” Id. at 1. - 466 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 The Court of Appeals denied Paul’s request. In a minute entry, the Court of Appeals stated, “Appellee, Paul Gerber’s motion for attorney fees is denied. There is no law or uniform course of practice in the appellate courts which recognizes the recovery of attorney fees from a non-adverse party. See [Rule] 2-109(F).” We granted Paul’s petition for further review of the order of the Court of Appeals which overruled his motion. ASSIGNMENT OF ERROR Paul generally claims that the Court of Appeals erred when it overruled his request for attorney fees. STANDARD OF REVIEW [1] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018). ANALYSIS Paul claims that the Court of Appeals erred when it over- ruled his request for attorney fees. We determine that, although the request was fashioned as a motion for an award of attor- ney fees pursuant to Rule 2-109(F), the substance of Paul’s filing was a request for an order for indemnification from P & L under the Nebraska Model Business Corporation Act. We further determine that under the relevant statute, a director may apply to an appellate court which conducted the proceed- ing for an order for indemnification. We therefore reverse the order which overruled Paul’s request and remand this appeal to the Court of Appeals with directions to consider Paul’s filing consistent with § 21-2,114 as an application for an order for indemnification rather than a motion for an award of attor- ney fees. Paul contends that the Court of Appeals erroneously read a “‘non-adverse party’ requirement” into Rule 2-109(F) and erred when it stated that there was “no law” that would allow recovery in the Nebraska appellate courts of attorney fees from a nonadverse party. He asserts that the Nebraska Model - 467 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 Business Corporation Act is the law that authorizes recovery of attorney fees in this case. In response, P & L and Langdon contend that Rule 2-109(F) controls and allows attorney fees only when a prevailing party is seeking an award of attorney fees from an adverse party. Although our reasoning differs somewhat, we agree with Paul that the Court of Appeals may determine whether he is entitled to indemnification for attorney fees in this appeal. [2] Our review of the proceedings shows that certain par- ties and the Court of Appeals focused on the form of Paul’s request but failed to consider its substance. As noted, Paul fashioned the filing as a motion for an award of attorney fees; he titled it as a “Motion for Attorney Fees” and stated that it was filed pursuant to Rule 2-109(F). But, given the content of the motion, we read the substance of his filing as an application for an order of indemnification under the Nebraska Model Business Corporation Act. We have indicated that when the title of a filing does not reflect its substance, it is proper for a court to treat a pleading or motion based on its substance rather than its title. See Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014) (stating that it is proper for court to look at substance of petitioner’s actual request, instead of simply title of petition); State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005) (stating that determi- nation as to how motion should be regarded depends upon substance of motion, not its title). See, also, Dugan v. State, 297 Neb. 444, 900 N.W.2d 528 (2017) (stating how motion should be regarded for purposes of determining whether its denial is final order depends upon substance of motion and not its title). The relief Paul sought was not per se an award of attorney fees under Rule 2-109(F), which, when allowed, is typically granted to a prevailing party and against an adverse party. Paul and P & L differ in this appeal as to whether attorney fees may be awarded against a nonadverse party under Rule 2-109(F). However, for purposes of this appeal, we need not resolve this disagreement, because we do not read the - 468 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 s ubstance of Paul’s filing as an ordinary request for an award of attorney fees. Instead, the substance of Paul’s filing shows that as a direc- tor, he is seeking indemnification from P & L for attorney fees he incurred in this appeal as authorized by the Nebraska Model Business Corporation Act. In particular, Paul cites § 21-2,114, which provides in part: (a) A director who is a party to a proceeding because he or she is a director may apply for indemnification or an advance for expenses to the court conducting the proceed- ing or to another court of competent jurisdiction. After receipt of an application and after giving any notice it considers necessary, the court shall: (1) Order indemnification if the court determines that the director is entitled to mandatory indemnification under section 21-2,112; (2) Order indemnification or advance for expenses if the court determines that the director is entitled to indem- nification or advance for expenses pursuant to a provision authorized by subsection (a) of section 21-2,118; or (3) Order indemnification or advance for expenses if the court determines, in view of all the relevant circum- stances, that it is fair and reasonable[.] The statutes mentioned in § 21-2,114 set forth circumstances in which indemnification would be mandatory or permissible. Section 21-2,112 provides: A corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because he or she was a director of the corporation against expenses incurred by the director in connection with the proceeding. Section 21-2,118(a) provides in part: A corporation may, by a provision in its articles of incorporation or bylaws or in a resolution adopted or a contract approved by its board of directors or sharehold- ers, obligate itself in advance of the act or omission - 469 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 giving rise to a proceeding to provide indemnification in accordance with section 21-2,111 or advance funds to pay for or reimburse expenses in accordance with sec- tion 21-2,113. Referring to such statutory authority, Paul alleged that he was made a party to this case and to this appeal based on his status as an officer, director, and shareholder of P & L and that P & L’s articles of incorporation require indemnification of directors. Paul referred, inter alia, to an exhibit of P & L’s articles of incorporation and attached his attorney’s affidavit and billing for services related to the appeal. Based on the substance of Paul’s filing, we determine that the filing was an application under § 21-2,114 for an order of indemnification against P & L. Although the filing was fashioned as a motion for an award of attorney fees under Rule 2-109(F), the Court of Appeals should have considered Paul’s request based on its substance. Having determined that the substance of Paul’s filing was an application by a direc- tor for an order of indemnification under § 21-2,114, we next consider whether an application of this sort may properly be made to the appellate court in which the attorney fees were incurred. Section 21-2,114 provides in relevant part that one “who is a party to a proceeding” based on his or her status as a direc- tor may apply for indemnification “to the court conducting the proceeding or to another court of competent jurisdiction.” Section 21-2,110 sets forth definitions applicable to § 21-2,114 and related statutes, and § 21-2,110(6) provides, “Proceeding means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitra- tive, or investigative and whether formal or informal.” Section 21-2,110 is based on § 8.50 of the Model Business Corporation Act. See 2 Model Business Corporation Act Ann. § 8.50 (3d ed. 2002). With regard to the definition of “proceeding,” the official comment to the model act states as follows: The broad definition of “proceeding” ensures that the benefits of this subchapter will be available to directors - 470 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 in new and unexpected, as well as traditional, types of litigation or other adversarial matters, whether civil, criminal, administrative, or investigative. It also includes arbitration and other dispute resolution proceedings, lawsuit appeals and petitions to review administrative actions. ABA Committee on Corporate Laws, Changes in the Model Business Corporation Act—Amendments Pertaining to Indemnification and Advance for Expenses, 49 Bus. Law. 741, 755-56 (1994) (emphasis supplied). [3,4] We read “proceeding” as used in § 21-2,114 to include appeals, and therefore, the statute applies to indemnification for attorney fees incurred in an appeal. Furthermore, because § 21-2,114 provides that a director may apply for indemnifi- cation “to the court conducting the proceeding” and because “proceeding” includes an appeal, we read § 21-2,114 as provid- ing that a director may apply to an appellate court for indem- nification related to an appeal that took place in the appellate court. Based on this reading of § 21-2,114, we determine that in the present case, Paul properly sought indemnification for attorney fees incurred in the appeal to the Court of Appeals and that the Court of Appeals was a court to which he could apply for an order for indemnification. As noted, § 21-2,114 provides that a director may apply to the “court conducting the proceeding,” as well as “to another court of competent jurisdiction.” Referring to this statutory provision, P & L and Langdon contend that Paul should have applied to the district court rather than the Court of Appeals for an indemnification order. We do not agree. We recognize that there are circumstances in which an appellate court might not be the best forum for deciding an application for indem- nification. We are aware of cases in which, for example, an issue such as whether a director was sued in his or her capacity as a director was a fact issue that needed to be resolved by a trial court, either as a counterclaim within the action or as a separate action. See, Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir. 1994); Heffernan v. Pacific Dunlop GNB Corp., 965 F.2d - 471 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports GERBER v. P & L FINANCE CO. Cite as 301 Neb. 463 369 (7th Cir. 1992); First American Corp. v. Al-Nahyan, 17 F. Supp. 2d 10 (D.D.C. 1998); Battenfeld of America Holding Co. v. Baird, Kurtz & Dobson, 1999 WL 1096047 (D. Kan. Nov. 8, 1999) (unpublished memorandum and order). But in the present case, in its order granting summary judg- ment, the district court found without challenge on appeal that it was “undisputed” that Paul was a director of P & L and the district court also granted Paul’s claim for indemnification for fees incurred at the district court level without objection. At oral argument, the only issue that P & L identified as in need of resolution was the reasonableness of the appellate- related fee for which Paul requested indemnification. We see no need to refer this request for indemnification to the district court. Appellate courts can, and often do, decide whether fee requests for services performed in appeals before them are reasonable. Therefore, there is no apparent reason that the Court of Appeals could not determine Paul’s application in this appeal consistent with § 21-2,114(a). CONCLUSION In this case, Paul was a party because he was a director. We conclude that Paul’s request for attorney fees was, in sub- stance, an application under § 21-2,114 for an order of indem- nification from P & L. We further conclude that because the Court of Appeals was the court conducting the proceedings, such application for indemnification was properly filed in the Court of Appeals, and that the appellate court should have con- sidered the filing as such. We reverse the order of the Court of Appeals which overruled Paul’s “Motion for Attorney Fees.” We remand the cause to the Court of Appeals with directions to consider Paul’s filing consistent with § 21-2,114 as an applica- tion for an order of indemnification against P & L. R eversed and remanded with directions.	{ "pile_set_name": "FreeLaw" }
Filed 2/3/15; pub. order 3/3/15 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT In re G.Y., a Person Coming Under the H040722 Juvenile Court Law. (Santa Clara County Super. Ct. No. JV18652) THE PEOPLE, Plaintiff and Respondent, v. G.Y., Defendant and Appellant. Appellant G.Y. has appealed from an order denying his petition to seal his juvenile records. Though appellant provided overwhelming evidence of his rehabilitation, the juvenile court properly concluded that it had no authority to seal his juvenile records pursuant to Welfare and Institutions Code section 781.1 We respectfully invite the Legislature to enact legislation that would remedy this unjust result. 1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated. I. Factual and Procedural Background In November 1998, after appellant was beaten by a group of men in a park, he went to his friend’s house. He and his friend then took the friend’s father’s handgun and drove to the assailants’ house. Appellant held the gun to a woman’s head and threatened to shoot her unless she summoned the men from inside the house. She did so and two men, who were holding baseball bats, came out of the house. Appellant threatened to shoot one of the men, but he and his friend left. In November 1998, the District Attorney filed a juvenile wardship petition (§ 602, subd. (a)), which alleged that appellant, who was then 17 years old, committed two counts of assault with a handgun and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) – counts 1 and 3), two counts of making criminal threats (Pen. Code, § 422 – counts 2 and 4), and one count of possession of a concealable firearm (Pen. Code, former § 12101, subd. (a) – count 5). It was also alleged that appellant personally used a firearm in the commission of counts 1 through 4. (Pen. Code, former § 12022.5, subd. (a)(1), § 1203.06.) A month later, appellant admitted the allegations that he had committed one count of assault with a handgun with an enhancement for personal use of a firearm, one count of making criminal threats, and one count of possession of a concealable firearm. The remaining counts and allegations were dismissed. The juvenile court declared appellant a ward of the court and committed him to the juvenile ranch facilities for a maximum term of 15 years and four months. However, appellant successfully completed the program at the juvenile ranch facilities and was released on probation approximately four months later. He then began working in the family printing business and attending community college. In November 2013, appellant filed a petition to reduce his prior felony counts to misdemeanors. Appellant submitted several exhibits documenting his accomplishments. 2 In 2006, appellant enlisted in the Army and served on active duty until November 2009. During that period, appellant was promoted to the rank of sergeant and received two Army Commendation Medals for his service in Iraq. Appellant also received numerous other achievement and leadership awards. Appellant provided two letters of recommendation from his commanding officers in the Army and an NCO (non- commissioned officer) evaluation that described his exemplary performance in the Army. After completing his active duty service, appellant enrolled in California State University, East Bay. In December 2012, he obtained his Bachelor of Science degree in Criminal Justice Administration. In 2013, appellant received another Army Commendation Medal for his outstanding contribution to military intelligence operations in Kuwait. At the hearing on the petition, the deputy district attorney stated: “And, first of all, it would be foolish of me not to agree with it, since he is in counterintelligence. And, secondly, it’s clear he’s distinguished himself and has, in effect, I think, set the bar extremely high for anybody else who makes an appeal . . . .” The petition was granted. In December 2013, appellant filed a petition for an order to seal his juvenile records pursuant to section 781. Appellant attached to his petition the same exhibits that he had provided with his petition to reduce his felony offenses to misdemeanors. Following a hearing, the court denied the petition. The trial court also noted: “And I certainly would like to see resolution of this issue, because I think that there has to be some either legislative change or if the Court of Appeal deems that there is an alternative interpretation.” 3 II. Discussion The right to have juvenile records sealed is governed by section 781.2 Subdivision (a) of section 781 was amended in March 2000 pursuant to the voter initiative entitled Proposition 21. It added the following language: “Notwithstanding any other provision of law, the court shall not order the person’s records sealed in any case in which the person has been found by the juvenile court to have committed an offense listed in subdivision (b) of Section 707 when he . . . had attained 14 years of age or older.”3 (§ 781, subd. (a).) Appellant contends that the reduction of his prior felony assault with a firearm adjudication to a misdemeanor permitted the juvenile court to order his records sealed. He argues that section 707, subdivision (b) does not apply to a felony which was subsequently reduced to a misdemeanor. “In interpreting a voter initiative such as Proposition [21], we apply the same principles that govern the construction of a statute. [Citations.] ‘ “Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.]” ’ [Citations.] [¶] Our first task is to examine the language of the statute 2 Section 781, subdivision (a) provided in relevant part: “In any case in which a petition has been filed with a juvenile court to commence proceedings to adjudge a person a ward of the court, . . . the person . . . may . . . at any time after the person has reached the age of 18 years, petition the court for sealing of the records, including records of arrest, relating to the person’s case . . . . If, after hearing, the court finds that since the termination of jurisdiction . . . that rehabilitation has been attained to the satisfaction of the court, it shall order all records . . . in the person’s case in the custody of the juvenile court sealed . . . . Notwithstanding any other provision of law, the court shall not order the person’s records sealed in any case in which the person has been found by the juvenile court to have committed an offense listed in subdivision (b) of Section 707 when he . . . had attained 14 years of age or older.” (§ 781, subd. (a).) Subsequent changes to the statute are not relevant to the present appeal. 3 One of the offenses listed in section 707, subdivision (b), which is relevant to the present case, is assault with a firearm. (§ 707, subd. (b)(13).) 4 enacted as an initiative, giving the words their usual, ordinary meaning. [Citations.] If the language is clear and unambiguous, we follow the plain meaning of the measure. [Citations.] ‘[T]he “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.’ [Citation.] [¶] The language is construed in the context of the statute as a whole and the overall statutory scheme, and we give ‘significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. [Citation.]’ [Citations.] The intent of the law prevails over the letter of the law, and ‘ “the letter will, if possible, be so read as to conform to the spirit of the act. [Citation.]’ ” (People v. Canty (2004) 32 Cal.4th 1266, 1276-1277.) “Proposition 21’s amendment to section 781 is . . . ‘unqualified and its meaning seems plain.’ ” (In re Chong K. (2006) 145 Cal.App.4th 13, 18.) The word “notwithstanding” is defined as “[i]n spite of.” (Webster’s II New College Dict. (3d ed. 2005) p. 766.) “When the Legislature intends for a statute to prevail over all contrary law, it typically signals this intent by using phrases like ‘notwithstanding any other law’ or ‘notwithstanding other provisions of law.’ [Citations.]” (In re Greg F. (2012) 55 Cal.4th 393, 406-407.) Thus, the phrase “[n]otwithstanding any other provision of law” in section 781, subdivision (a) prevails over contrary law. Under the plain meaning of the statute, the juvenile court has no power to seal juvenile records “in any case” in which (1) the juvenile court has found that the person “committed an offense listed in subdivision (b) of Section 707,” and (2) the offense was committed when he was 14 years or older. (§ 781, subd. (a).) Here, it is undisputed that the juvenile court found that appellant committed an assault with a firearm in 1998, an offense that is listed in section 707, subdivision (b), and 5 he committed the offense when he was over 14 years old. Section 781, subdivision (a) does not specify that the offenses listed in section 707, subdivision (b) must be felonies.4 Nor do the cases upon which appellant relies advance his argument that section 707, subdivision (b) applies only to felonies. In In re Sim J. (1995) 38 Cal.App.4th 94 (Sim J.), the court designated the minor’s prior misdemeanor assault as a section 707, subdivision (b) offense, thereby extending the court’s jurisdiction over him from age 21 to 25. (Sim J., at p. 96.) After noting that Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 805, assumed, without deciding, that section 707, subdivision (b) applied only to felonies, Sim J. held that section 707, subdivision (b) applied only to felony violations of the enumerated offenses. (Sim J., at p. 98.) However, neither Sim J. nor Ramona R. considered the issue in the present case and thus do not support appellant’s position. (People v. Casper (2004) 33 Cal.4th 38, 43.) Appellant’s reliance on People v. Vessell (1995) 36 Cal.App.4th 285 (Vessell), People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 (Alvarez), People v. Park (2013) 56 Cal.4th 782 (Park), and People v. Culbert (2013) 218 Cal.App.4th 184 (Culbert) is also misplaced. In Vessell, supra, 36 Cal.App.4th 285, the defendant pleaded no contest to a violation of Penal Code section 273.5, which was punishable as either a felony or a misdemeanor in the court’s discretion, and admitted that he had suffered a prior conviction for a serious or violent felony (Pen. Code, § 667, subds. (b)-(i)). (Vessell, at p. 288.) The trial court reduced the charge to a misdemeanor pursuant to Penal Code section 17, subdivision (b) and granted probation. (Vessell, at p. 288.) The Attorney 4 We note that section 781, subdivision (a) also sets forth the requirements for the sealing of records after a person has been taken into temporary custody pursuant to section 626. One of those requirements is that the person has “not been convicted of a felony or of any misdemeanor involving moral turpitude . . . .” (§ 781, subd. (a).) Had the Legislature intended in the same subdivision of section 781 to include only felony offenses listed in section 707, subdivision (b), it would have used the same language. 6 General appealed and argued that the trial court had no discretion to reduce a felony charge to a misdemeanor on the ground that the “Three Strikes” law mandated a state prison term and thus the sentence was unauthorized. (Vessell, at p. 289.) The Attorney General focused on Penal Code section 667, subdivision (c) which provided in relevant part that, “ ‘[n]otwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions,’ ” the trial court was not authorized to grant probation, suspend execution or imposition of sentence, or commit the defendant to any facility other than prison. (Vessell, at p. 290.) Vessell rejected the Attorney General’s contention and concluded that the determination of whether a crime was a felony or a misdemeanor for purposes of the Three Strikes law did not occur at the time of the plea, but at sentencing. (Vessell, at pp. 290-291.) Thus, Vessell held that “because the trial court reduced the crime to a misdemeanor under [Penal Code] section 17, subdivision (b)(1), respondent was not convicted of a felony, and [Penal Code] section 667 [did] not apply.” (Vessell, at p. 294.) In Alvarez, supra, 14 Cal.4th 968, the defendant was convicted of felony possession of a controlled sentence and he admitted the truth of four prior strike convictions. (Id. at p. 973.) The trial court declared the current conviction a misdemeanor and imposed probation. (Ibid.) Alvarez held that the trial court retained its authority to reduce a “ ‘wobbler’ ” offense to a misdemeanor at sentencing under the Three Strikes law. (Alvarez, at pp. 974-975.) “Thus, regardless of qualifying prior convictions, the initial sentencing determinant is whether the defendant ‘has been convicted of a felony’ in the current proceeding. [Citation.]” (Id. at p. 975.) In Park, supra, 56 Cal.4th 782, the defendant’s prior conviction of assault with a deadly weapon was reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b) and subsequently dismissed. (Park, at p. 787.) The defendant was later convicted of various offenses and admitted that he had suffered a prior serious felony 7 conviction within the meaning of Penal Code section 667, subdivision (a). (Park, at p. 788.) This statute mandates imposition of a five-year enhancement for “any person convicted of a serious felony who previously has been convicted of a serious felony.” (Pen. Code, § 667, subd. (a).) Park held that since the prior felony offense had been reduced to a misdemeanor under Penal Code section 17, subdivision (b), it no longer qualified as a prior serious felony under Penal Code section 667, subdivision (a). (Park, at p. 798.) Relying on Park, Culbert, supra, 218 Cal.App.4th 184, held that the trial court erred in imposing an enhancement under Penal Code section 667, subdivision (a) when the defendant’s prior conviction had been reduced to a misdemeanor. (Culbert, at p. 193.) Vessell, Alvarez, Park, and Culbert are distinguishable from the present case. In contrast to those cases, here, the relevant language in section 781 makes no distinction between misdemeanors and felonies. It states that “in any case in which the person has been found by the juvenile court to have committed an offense listed in subdivision (b) of Section 707 . . . .” (§ 781.) Moreover, even assuming that the “offenses” referred to in section 781 must be felonies, appellant admitted that he committed three felonies, including a felony offense listed in section 707, subdivision (b). The subsequent reduction of the felony to a misdemeanor did not alter the fact that a juvenile court had previously found that he committed a felony offense listed in section 707, subdivision (b). When the court later granted a motion to reduce the offense from a felony to a misdemeanor, “the offense became a misdemeanor from that point on, but not retroactively. [Citation.]” (People v. Kennedy (2011) 194 Cal.App.4th 1484, 1492.) Our interpretation of section 781, subdivision (a) comports with the intent of Proposition 21. As In re Jeffrey T. (2006) 140 Cal.App.4th 1015 explained: “Section 781 was generally enacted ‘to protect minors from future prejudice resulting from their 8 juvenile records.’ [Citations.] . . . Voters, according to section 2 of Proposition 21, desired to ‘eliminat[e] confidentiality in some juvenile proceedings in order to hold juvenile offenders more accountable for their actions.’ [Citation.] This ‘more recent and specific intent underlying Proposition 21’s amendments to section 781 prevail[s] over th[e] general intent’ recognized when the statute was initially enacted [citation].” (Id. at pp. 1020-1021.) Thus, we must conclude that the juvenile court had no authority to seal appellant’s juvenile records. Relying on section 781, subdivision (d), appellant also requests that his records be sealed but not destroyed. Section 781, subdivision (d) states: “Unless for good cause the court determines that the juvenile court record shall be retained, the court shall order the destruction of a person’s juvenile court records that are sealed pursuant to this section as follows: . . . when the person who is the subject of the record reaches the age of 38 if the person was alleged or adjudged to be a person described by Section 602, except that if the subject of the record was found to be a person described in Section 602 because of the commission of an offense listed in subdivision (b) of Section 707 when he or she was 14 years of age or older, the record shall not be destroyed.” Subdivision (d) of section 781 does not authorize the sealing of appellant’s juvenile records. It provides that juvenile records shall not be destroyed for a person: (1) whose records have been sealed; (2) who is 38 years old; and (3) who was alleged or adjudged to be a person described by section 602. However, defendant falls within the exception to subdivision (d), that is, he was found to have been a person described in section 602 because he committed an offense listed in section 707, subdivision (b) when he was over 14 years old. We recognize that though appellant committed very serious offenses on one occasion when he was a juvenile, he has since demonstrated that he is a very valuable 9 member of society. The sealing of his juvenile court records would acknowledge appellant’s achievements. However, courts have no authority to rewrite a statute. III. Disposition The order is affirmed. 10 _______________________________ Mihara, J. I CONCUR: ______________________________ Elia, Acting P. J. 11 BAMATTRE-MANOUKIAN, J., Concurring Under the present law, I must concur in the judgment. As a juvenile, G.Y. was found to have committed an offense listed in Welfare and Institutions Code section 707, subdivision (b) and thus he is not eligible to have his juvenile records sealed pursuant to Welfare and Institutions Code section 781, subdivision (a), even though his original offense was subsequently reduced to a misdemeanor. In 2000, the electorate enacted Proposition 21, which amended Welfare and Institutions Code section 781, subdivision (a) to prohibit the sealing of records for offenses listed in Welfare and Institutions Code section 707, subdivision (b). The goal was to “ ‘eliminat[e] confidentiality in some juvenile proceedings in order to hold juvenile offenders more accountable for their actions.’ [Citations.]” (In re Jeffrey T. (2006) 140 Cal.App.4th 1015, 1021.) In enacting the amendment to Welfare and Institutions Code section 781, subdivision (a) in 2000, the electorate clearly did not contemplate an individual such as G.Y., who has so greatly and unquestionably rehabilitated and distinguished himself. G.Y. has not merely refrained from any further criminal conduct but has served his country with distinction and honor, obtained a college degree (making the Dean’s list and the Honors list), and had his offense reduced to a misdemeanor with the concurrence of the District Attorney’s Office. While certainly G.Y.’s juvenile offenses were serious, the juvenile justice system is geared primarily toward rehabilitation. “ ‘[T]he purpose of the juvenile justice system is “(1) to serve the ‘best interests’ of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and ‘enable him or her to be a law-abiding and productive member of his or her family and community,’ and (2) to ‘provide for the protection and safety of the public . . . .’ [Citations.]” [Citation.]’ ” (In re Greg F. (2012) 55 Cal.4th 393, 417.) The record indicates that G.Y. has rehabilitated himself to an extraordinary degree and that he no longer presents any risk to the public. In granting G.Y.’s request that his offense be reduced to a misdemeanor, the trial court noted that because of what he had “done for our community and our citizens[,] . . . anything that blocks you from serving in the capacity that you wish to with youth should be eradicated and all obstacles removed.” In finding it had no authority to grant G.Y.’s sealing request, the trial court commended G.Y. for his efforts “and the better life that you have so ably demonstrated,” and the court noted it hoped for a change in the law. While I understand and appreciate the goal of the electorate in enacting the 2000 amendment to Welfare and Institutions Code section 781, subdivision (a), G.Y. clearly does not fall within the spirit of what the electorate intended. Providing an individual such as G.Y. with the opportunity to have his juvenile record sealed would not conflict with that spirit. However, under the present statutory scheme, G.Y. is precluded from obtaining that relief. I urge the Legislature to provide juvenile courts with the discretion to enable individuals like G.Y., who has so greatly and unquestionably rehabilitated and distinguished himself, to have their juvenile records sealed.1 1 An uncodified section of Proposition 21 provides: “The provisions of this measure shall not be amended by the Legislature except by a statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, or by a statute that becomes effective only when approved by the voters.” (Prop. 21, Primary Elec. (Mar. 7, 2000), § 39.) Thus, the Legislature may amend Proposition 21’s statutory provisions without voter approval, but only by a two-thirds vote of each house. (See Cal. Const., art. II, § 10, subd. (c).) 2 ___________________________________________ BAMATTRE-MANOUKIAN, J. Filed 3/3/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT In re G.Y., a Person Coming Under the H040722 Juvenile Court Law. (Santa Clara County Super. Ct. No. JV18652) THE PEOPLE, ORDER GRANTING REQUEST FOR PUBLICATION Plaintiff and Respondent, v. G.Y., Defendant and Appellant. BY THE COURT: Pursuant to California Rules of Court, rule 8.1105(b), the request for publication is hereby granted. It is ordered that the opinion in this matter, filed on February 3, 2015, shall be certified for publication. Date: _____________________________ Mihara, J. _____________________________ Elia, Acting P. J. _____________________________ Bamattre-Manoukian, J. Trial Court: Santa Clara County Superior Court Trial Judge: Honorable Jesus Valencia, Jr. Attorney for Defendant and Appellant: Nancy S. Brandt Attorneys for Plaintiff and Respondent: Kamala D. Harris Attorney General of California Gerald A. Engler Senior Assistant Attorney General Eric D. Share Supervising Deputy Attorney General Christina vom Saal Deputy Attorney General Julia Je Deputy Attorney General 2	{ "pile_set_name": "FreeLaw" }
904 So.2d 331 (2003) Levi PACE v. STATE of Alabama. CR-01-1249. Court of Criminal Appeals of Alabama. April 25, 2003. On Return to Remand April 30, 2004. Rehearing Denied June 18, 2004. Certiorari Denied January 14, 2005. 334 Wilson Myers, Sr., Gulf Shores; and Christopher Wayne Adams, Atlanta, Georgia, for appellant. William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appellee. Alabama Supreme Court 1031519. WISE, Judge. The appellant, Levi Pace, was indicted for murder made capital because it was committed during a robbery in the first-degree.[1] See § 13A-5-40(a)(2), Ala.Code 1975. He was convicted of the lesser-included offense of murder, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced to life imprisonment. The circuit court ordered that Pace's sentence was to run consecutively with sentences he was serving as a result of other convictions. On March 12, 2002, Pace filed a motion for a new trial. That same day, Pace also filed a notice of appeal to this Court. The circuit court did not rule on Pace's new-trial motion; instead, the court 335 allowed the motion to be denied by operation of law.[2] In his motion for a new trial, Pace raises numerous allegations of error. Of particular concern are Pace's following contentions regarding potential juror misconduct: "10. Furthermore, during the sequestration, Mr. Pace was prejudiced by the juror's access to improper information and misconduct. For instance, while sequestered [juror J.B.] was allowed to call a friend, and the friend told her about a newspaper article on the case. The friend told [juror J.B.] that the article said Mr. Pace had been previously convicted for the crime for which he was on trial, and the conviction was reversed due to an issue involving race and the grand jury. See affidavit of Investigator Kate Weisburd. Further, after learning this from her friend, [juror J.B.] sought to confirm the information and asked the bailiff whether Mr. Pace had previously been tried and convicted for this offense. The bailiff told her that the bailiff could not answer but instructed her to ask the other jurors if this was Mr. Pace's second trial and if the first had been reversed. [Juror J.B.] heeded this instruction, and her other jurors confirmed that Mr. Pace had been previously convicted. This answer by the bailiff is prejudicial as it encourages [juror J.B.] to seek improper information from other jurors. "11. Mr. Pace was denied a fair trial due to the juror misconduct of [juror O.F.]. [Juror O.F.], and all the jurors, was voir dired about whether his racial attitudes would influence him in reaching a verdict in the case, and he denied having any racial views that would impact his ability to be a fair and impartial juror. After defense witnesses Oliver and Clyde Cook, African-American men, testified, [juror O.F.] told other jurors that he does not believe a `word those niggers said.' See attached statement of alternate juror [J.M.], page 4. The implication is that he would have believed the witnesses if they were white. This is improper and premature deliberation. Additionally, it is clear that [juror O.F.] harbors racist views and was not honest in voir dire about his racial views. Had [juror O.F.] been honest in voir dire, he would have been stricken for cause or stricken by the defense. This dishonesty prejudiced Mr. Pace's case as Mr. Pace is entitled to a jury free of concealed racial bias and a verdict free from racism." (C. 1346-47.) In support of his motion for a new trial, and as an addendum to that motion, Pace submitted the March 10, 2002, statement of alternate juror J.M., and an affidavit from Kate Weisburd, the investigator who interviewed juror J.B. concerning her telephone conversation with her friend and her subsequent conversation with the bailiff assigned to supervise the sequestered jury. The State did not refute any of the allegations in Pace's motion for a new trial and supporting documents. The motion was denied by operation of law, without any ruling by the circuit court. In Edgar v. State, 646 So.2d 683, 687 (Ala.1994), the Alabama Supreme Court addressed a similar situation: 336 "We hold that where, as here, a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala.R.Crim.P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion." See also Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002). While we express no opinion as to the merits of Pace's other grounds in his motion for a new trial, we note that the two allegations set out above cause this Court grave concern. Indeed, this Court has previously determined that a juror's failure to respond truthfully to questions during voir dire warranted a new trial. See, e.g., Tomlin v. State, 695 So.2d 157, 175-76 (Ala.Crim.App.1996); State v. Freeman, 605 So.2d 1258, 1259-60 (Ala.Crim.App.1992). Moreover, "[j]uror misconduct will justify a new trial when it indicates bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law." Whitten v. Allstate Ins. Co., 447 So.2d 655, 658 (Ala.1984). Although in a different context, the Supreme Court recently noted: "`"[W]e are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged."'" Ex parte Pettibone, 891 So.2d 278, 279 (Ala.2003) (quoting Frazier v. State, 632 So.2d 1002, 1007 (Ala.Crim.App.1993) (quoting in turn United States v. Attell, 655 F.2d 703, 705 (5th Cir.1981))). Based on Edgar, we remand this case for the circuit court to make specific, written findings of fact as to each claim Pace raised in his motion for a new trial. On remand, the circuit court should require the State to respond to the motion and should conduct a hearing on the motion. If the circuit court determines that Pace is entitled to relief on his claims, then the court may grant such relief as it deems appropriate. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include the State's response, a transcript of the proceedings on remand, and the circuit court's specific written findings of fact. REMANDED WITH DIRECTIONS. McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur. On Return to Remand WISE, Judge. Levi Pace was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment. Pace was originally indicted for capital murder on July 2, 1992, for shooting and killing Jerry Hargrove, the desk clerk at the Days Inn motel in Decatur, during a robbery in December 1991. (C. 29-30.) He was found guilty and sentenced to death. That conviction was overturned by this Court. Pace v. State, 714 So.2d 320 (Ala.Crim.App.1996), rev'd in part and remanded, 714 So.2d 332 (Ala.1997), opinion on remand, 714 So.2d 340 (Ala.Crim.App.1998). On July 28, 1998, Pace was re-indicted for capital murder, a violation of 337 § 13A-5-40(a)(2), Ala.Code 1975 (murder made by capital because it was committed during a robbery); he was convicted of the lesser-included offense of felony murder on February 16, 2002. The trial court sentenced Pace to life imprisonment, that sentence to be served concurrently with other sentences Pace was serving in unrelated cases. (R. 2590-91.) Pace appealed, and we remanded this cause to the trial court with directions that it address Pace's motion for a new trial. Pace v. State, 904 So.2d 331 (Ala.Crim.App.2003). The trial court entered an order on September 15, 2003, denying Pace's motion for a new trial. This cause is now before us on the merits of Pace's arguments asserted in his brief on appeal. I. Pace raises three arguments relative to alleged juror misconduct or bias: (A) He contends that the trial court erred when it failed to strike for cause prospective juror J.D., based upon J.D.'s knowledge of the case garnered before trial from newspaper articles; (B) he argues that juror O.F. was racially biased, which denied him a fair trial; and (C) he contends that juror J.B. impermissibly obtained information from an outside source, which also denied him a fair trial. Because Pace was charged with capital murder, the trial court went through extensive efforts to qualify the jury panel. The voir dire process, which lasted more than three days, represents over 1,000 pages in the record. (C. 12; R. 466-1486, 1516-36.) The jury panel was initially composed of about 90 persons. After the initial questioning by the trial court, the jury panel was pared down to about 65 persons, who were then divided into 5 panels. The first three panels were voir dired by the trial court and the attorneys, and after several veniremembers were removed for cause, the pool of jurors was reduced to 36 persons. Each side was granted 12 peremptory strikes, with the last two strikes being alternates. (C. 1301-02, 1304-05; R. 470, 479, 520, 523, 526-28, 567, 807, 1111, 1525, 1527.) Jurors J.D. and O.F. were on panel one; juror J.B. was on panel two. Pace used one of his peremptory strikes to remove juror J.D., but jurors O.F. and J.B. were not struck by either side; they both served on the jury. (C. 1301-02; R. 525, 527, 1533.) We recently addressed similar issues in DeBruce v. State, 890 So.2d 1068, 1077-78 (Ala.Crim.App.2003), in which we stated: "When evaluating a juror-misconduct claim we apply the standard articulated by the Alabama Supreme Court in Ex parte Dobyne, [805 So.2d 763 (Ala.2001)]. The Supreme Court stated: "`It is true that the parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely. See Fabianke v. Weaver, 527 So.2d 1253 (Ala.1988). However, not every failure to respond properly to questions propounded during voir dire "automatically entitles [the defendant] to a new trial or reversal of the cause on appeal." Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970); see also Dawson v. State, [710 So.2d 472] at 474 [(Ala.1997)]; and Reed v. State, [547 So.2d 596 (Ala.1989)]. As stated previously, the proper standard to apply in determining whether a party is entitled to a new trial in this circumstance is "whether the defendant might have been prejudiced by a veniremember's failure to make a proper response." Ex parte Stewart, 659 So.2d [122] at 124 [ (Ala.1993) ]. Further, the determination of whether 338 a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court's discretion.' "805 So.2d at 771-72 (footnote omitted). ".... "`The test for determining whether juror misconduct is prejudicial to the defendant and, thus, warrants a new trial is whether the misconduct might have unlawfully influenced the verdict rendered. Ex parte Troha, 462 So.2d 953, 954 (Ala.1984); Roan [v. State] 225 Ala. 428, 435, 143 So. 454, 460 (1932); Leith [v. State] 206 Ala. 439, 90 So. 687, 690 (1921). Once the trial court investigates the misconduct and finds, based on competent evidence, the alleged prejudice to be lacking, this Court will not reverse. See Bascom v. State, 344 So.2d 218, 222 (Ala.Crim.App.1977).' "[Reed v. State, 547 So.2d 596, 597 (Ala.1989).] Moreover, `"[we] grant great deference to the trial judge, who is on the scene and who can best judge the credibility of the participants and determine what actually occurred." Ex parte Pressley, 770 So.2d 143, 147 (Ala.2000).' Dobyne, 805 So.2d at 772...." A. Pace contends that the trial court should have removed juror J.D. for cause because, Pace argues, J.D. was biased by pretrial media coverage. During the questioning of panel one, J.D. indicated that he had recently read two newspaper articles about the case. J.D. was later called for individual questioning by the trial court, at which time the following occurred: "[DEFENSE COUNSEL]: [J.D.], we asked that you be brought back because you had remembered something about this case or saw it in the paper.... "JUROR [J.D.]: Yeah. Well, I read yesterday's Decatur paper and it was in there. Then there was something about it in this morning's Birmingham paper. I subscribe to both of them. "[DEFENSE COUNSEL]: What do you remember about the articles? ".... "JUROR [J.D.]: The Birmingham paper there really wasn't anything other than he was going to be retried for the crime that was committed. I don't even believe the Birmingham paper mentioned about Chilton County [an unrelated case]. Now, the Decatur paper did. It went into that about the something about a restaurant or hotel or something and said people were put in a freezer or locker room or something to that effect. And, of course, it talked about the Days Inn [the crime for which he was on trial]. ".... "[DEFENSE COUNSEL]: ... I kind of wonder how you feel about reading about these articles in the paper might influence you as you come in here? "JUROR [J.D.]: Reading the Decatur Daily, I don't put a whole lot of stock in the Decatur Daily. ... I don't think it would influence me, no. And I guess I probably know some more facts than some of the people that didn't read yesterday's paper. "[DEFENSE COUNSEL]: How about the fact that he's been on trial before? Did the articles mention what the result of that trial was? "JUROR [J.D.]: The Decatur paper did, yes. "[DEFENSE COUNSEL]: And I assume it mentioned that he was convicted? 339 "JUROR [J.D.]: Convicted and sentenced to death. "[DEFENSE COUNSEL]: How does that influence you knowing that he's been on death row for what we may ask you to try to rejudge? "JUROR [J.D.]: How does that affect me? I guess maybe it could taint me a little bit. Still, you know, burden of proof there that has to be done. But like I said, I did know coming in that he had been on death row. "[DEFENSE COUNSEL]: ... I wondered if [because] you read these articles if you feel like you might be better used on another case that you hadn't read about, that you really feel like somewhere down the road you may be tainted by what you've already read? "JUROR [J.D.]: Possibly, yeah. Maybe. I mean, I can't say for sure. Like I said, I'm willing to hear the evidence and go from there. "[DEFENSE COUNSEL]: Let me make sure. I think I'm hearing you say... that you would try your best to go by what you hear in the courtroom but you're not positive that as much as you'll try to do that you can't promise us that at the end of this case these articles won't influence how you viewed the case in some way? "JUROR [J.D.]: You're probably right. I probably would be because of the articles. I know he's already been convicted and there's nothing I can do about that. ".... "[PROSECUTOR]: ... [D]o you believe if there's something inconsistent about what you saw in the paper if you were selected to serve on this jury and if there was something inconsistent about what you read in the paper, inconsistent with the evidence you heard, that you [could] decide the case based on the evidence rather than what you read in the newspaper? "JUROR [J.D.]: Yes, sir. I do not trust the Decatur Daily. "[PROSECUTOR]: You say you do not trust the paper that you read this article in? "JUROR [J.D.]: No, not at all. "[PROSECUTOR]: That's where you gleaned all this information basically that you told us about? "JUROR [J.D.]: Right. Nothing in the Birmingham paper. "[PROSECUTOR]: ... Would you hold the State of Alabama and my side of the courtroom ... to the test of the burden of proof? As the Judge tells you, we [have] to prove the defendant guilty beyond a reasonable doubt and if we failed to do that would you have a problem returning a verdict of not guilty? "JUROR [J.D.]: No, I wouldn't. "[PROSECUTOR]: Regardless of what you read, heard or anything else? "JUROR [J.D.]: No, if you couldn't prove it. "[PROSECUTOR]: We just lose? "JUROR [J.D.]: Right. "[PROSECUTOR]: Or he's found not guilty? "JUROR [J.D.]: Right. ".... "THE COURT: Do you understand that [Pace] is now before you standing innocent? "JUROR [J.D.]: Right. "THE COURT: Regardless of what he did at this point legally he is "JUROR [J.D.]: He's innocent. "THE COURT: He's not guilty of any crime? "JUROR [J.D.]: Right. 340 "THE COURT: And you understand that? "JUROR [J.D.]: Right. "THE COURT: You seem to. Not trusting the Decatur Daily, are you telling me that you can't put that out of your mind and try this case based on the facts you hear over "JUROR [J.D.]: Well, look, I don't trust the Decatur Daily. I think I could. I think I could listen to the evidence and the defense and I think I could render a verdict." (R. 737-46.) Pace requested that juror J.D. be struck for cause. The trial court commented that J.D. was "pretty straightforward" and indicated that he could try the case "based on the evidence and by the instructions from the Court." The trial court denied Pace's request to strike juror J.D. for cause. (R. 791-92, 1479-80.) Section 12-16-150(7), Ala.Code 1975, states that a juror is subject to being struck for cause if "he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict." "To justify a challenge for cause, there must be a proper statutory ground or `"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."' Clark v. State, 621 So.2d 309, 321 (Ala.Cr.App.1992)(quoting Nettles v. State, 435 So.2d 146, 149 (Ala.Cr.App.1983)). This Court has held that `once a juror indicates initially that he or she is biased or prejudiced or has deep-seated impressions' about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala.1995). A juror `need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.' Kinder v. State, 515 So.2d 55, 61 (Ala.Cr.App.1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder, at 60-61. In order to justify disqualification, a juror `"must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused"'; `"[s]uch opinion must be so fixed ... that it would bias the verdict a juror would be required to render."' Oryang v. State, 642 So.2d 979, 987 (Ala.Cr.App.1993) (quoting Siebert v. State, 562 So.2d 586, 595 (Ala.Cr.App.1989))." Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala.1998). "`"The test to be applied is can the juror eliminate the influence of his scruples and render a verdict according to the evidence. Ordinarily a juror is not disqualified where it appears that he is willing to follow the instructions of law given by the trial court and is able to decide the case impartially according to the evidence notwithstanding his scruples. The determination of this question is based on the juror's answers and demeanor and is within the sound discretion of the trial judge. Tidmore [v. City of Birmingham, 356 So.2d 231 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978)]. A juror is incompetent whose answers show that he would follow his own views regardless 341 of the instructions of the court. Watwood v. State, 389 So.2d 549, 550 (Ala.Cr.App.), cert. denied, 389 So.2d 552 (Ala.1980)." "`Barbee v. State, 395 So.2d 1128, 1130-31 (Ala.Cr.App.1981).... "`"Thus, where a juror states that he has opinions but that he would try the case fairly and impartially according to the law and the evidence and that he would not allow his opinion to influence his decision, it is not error for a trial judge to deny a challenge for cause. Howard v. State, 420 So.2d 828, 831 (Ala.Cr.App.1982). `A juror who brings his thoughts out into the open in response to voir dire questions may be the one who later "bends over backwards" to be fair....' Clark v. State, 443 So.2d 1287, 1289 (Ala.Cr.App.1983)." "`Mahan v. State, 508 So.2d 1180 (Ala.Crim.App.1986).' "Kinder v. State, 515 So.2d 55, 60-61 (Ala.Cr.App.1986)." Harris v. State, 632 So.2d 503, 520-21 (Ala.Crim.App.1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). Though juror J.D. indicated that he had read about the case in the newspaper, he assured the trial court that he could set aside what he had read and follow the instructions of the trial court. Therefore, the trial court did not err by refusing to remove juror J.D. for cause. Moreover, the Alabama Supreme Court has held that the failure to remove a juror for cause is harmless when that juror is removed by the use of a peremptory strike. Bethea v. Springhill Mem'l Hosp., 833 So.2d 1 (Ala.2002). B. Pace also contends that juror O.F., who is white, was racially biased because, Pace contends, O.F. made a racial comment while the jury was sequestered that indicated he would not believe two defense witnesses, who were black. Pace claims that O.F. failed to disclose his racial bias during voir dire and that this failure denied him a fair trial. During its voir dire of panel one, Pace's trial counsel asked the prospective jurors if "anybody here [has] any feelings or thoughts that we need to discuss concerning this case because the victim is white and Mr. Pace is black?" No one responded. (R. 683.) During trial, Pace called four witness to testify. Two of those witnesses, Oliver Cook and Clyde Cook, were called to attempt to impugn the reputation and veracity of the State's key witness, Linda Jones. Linda Jones testified that she was present when Pace shot and killed the victim in this cause. See Part III of this opinion. According to Pace, Oliver Cook and Clyde Cook "were the only two African-American witnesses testifying in the trial other than Linda Jones, the accomplice."[1] (See principal brief of appellant at 27.) Between Oliver and Clyde Cook, they testified that they had known Linda Jones since they were children, that she was an untruthful person, that she was a drug addict and had participated in robberies to support her drug addiction, that she sold illegal drugs, that she had previously shot at Clyde Cook and at her father, and that she had recently stabbed a man who was living with her. (R. 2323-28, 2332-37.) Oliver Cook testified that Linda Jones told 342 him that she was the one who shot and killed the victim, and that she was "going to put it on" Pace. (R. 2334-35.) In support of his posttrial motion, Pace attached a handwritten statement of J.M., an alternate on the jury, prepared by an investigator hired by Pace's defense counsel. (C. 1345, 1350.) In the statement, J.M. stated: "The night after the two inmate witnesses testified, [another juror], [O.F.] and I spoke in our suite. [O.F.] said, `I don't believe a word those niggers said.'" (C. 1353.) According to the statement, O.F. commented the day after making the racial slur that he did not think the voting would take long and that J.M. believed O.F. had made up his mind regarding Pace's guilt. (C. 1353-54.) On remand, the trial court conducted a hearing on Pace's motion for a new trial, at which this issue was addressed. In its order denying Pace's motion, the trial court wrote: "In paragraph numbered 11 [of his motion], the appellant, Levi Pace, through his attorney, alleges that he was denied a fair trial due to juror misconduct or due to the misconduct of [O.F.]. The appellant alleges that [O.F.] denied having any racial views that would impact the ability to be a fair and impartial juror and further alleged that Mr. [O.F.] told other jurors after the testimony of two African-American men that he would not believe [a] `word those niggers said.' As [a] basis for this statement, the appellant offered the affidavit and testimony of [J.M.], who served as an alternate juror in this case.... The Court also heard testimony from [O.F.] who denied ever using the word `nigger' during the course of the trial and further denied having any racial prejudice or any racial views that impacted his ability to be fair and impartial as a juror.... [J.M.] testified that he disagrees with the jury's verdict. The Court observed both [J.M.] and [O.F.] and finds the testimony of ... [O.F.] to be credible, more sincere and more believable than that of the testimony of [J.M.]. There is no basis to support a finding that [O.F.] is racially prejudiced or that his verdict was racially motivated." The trial court, having viewed the two jurors and heard the testimony, was in a much better position to determine whether the alleged racial statement was made by Juror O.F. and, if made, whether Pace was denied a fair trial as a result. As a result, we will not overturn the trial court's findings in this regard. See Perry v. State, 455 So.2d 999, 1003 (Ala.Crim.App.1984), in which we noted that an abuse-of-discretion standard applies to a trial court's ruling on a new-trial motion and stated: "Assessing the credibility of evidence presented at a new trial hearing falls to the trial judge because he is in the best position to evaluate the new evidence in light of all that has gone before." We also note that the trial court's order is supported by the record. As noted, the alleged racial statement by O.F. was made the night after Clyde Cook and Oliver Cook testified and the alleged statement that O.F. had already made up his mind occurred a day later. The record reveals that the last full day of trial was on February 15, 2002, and that the jury was reconvened at 9:07 a.m. (R. 2316.) Pace called Clyde Cook and Oliver Cook to testify as his first witnesses that morning. (R. 2323, 2331.) Pace then called two other witnesses to testify, and the defense rested. The trial court dismissed the jury for the lunch break at 10:47 a.m. (R. 2383, 2386.) The trial court then conducted a charge conference, and the jury was reconvened at 1:34 p.m. (R. 2434.) That afternoon consisted of closing arguments and the 343 trial court's final charge to the jury. At the conclusion of the court's charge, the alternate jurors, including J.M., were relieved of their duties and permitted to return home. The trial court directed the bailiffs that J.M. and the other excused juror were to have no further contact with the other jurors. (R. 2574-78.) After selecting their foreperson, the remaining jurors elected to come back the next day, February 16, 2002, to complete their deliberations and render their verdict. (R. 2580-81.) Therefore, J.M. was not even with O.F. on the night or the day after Clyde Cook and Oliver Cook testified. These statements, if they occurred at all, could not have occurred when J.M. claimed in his statement that they did. Even had Pace been able to establish that O.F. was prejudiced against blacks, Pace would not have been denied a fair trial. The testimony of Clyde Cook and Oliver Cook, to the extent it was elicited to discredit Jones, likely had little impact on the jury, because Jones, who was black herself, conceded during her testimony that she had served time in prison for a murder that occurred in 1985; that she eluded arrest and was charged with escape after the police tried to arrest her for the 1991 robberies; that she had lied to benefit herself on past occasions; that she struck a deal with the police in exchange for her testimony against Pace in this case, receiving a 10-year sentence as opposed to a possible sentence of death or life imprisonment; that she participated in both crimes at the Days Inn motel in Decatur in 1991; that she was armed with a handgun in December 1991 when Hargrove, the victim in this case, was killed; that she had been a crack cocaine addict and a prostitute; that she relied upon men to supply her drug habits; that she committed other crimes to support her drug addiction; that she still smoked marijuana; that she had recently had money seized from her home in a drug forfeiture; and that her prior testimony against Pace differed in numerous respects from her testimony at trial. (R. 1760, 1778-95, 1803-15, 1820-25, 1838-42, 1853, 1858-60, 1872-98, 1912-16.) Jones's testimony was far more damaging to her own credibility than the testimony of Oliver Cook and Clyde Cook was, so O.F.'s refusal to consider the Cooks' testimony would have been harmless. C. Pace next argues that juror J.B. obtained information from an outside source relative to the case while the jury was sequestered, which Pace claims prejudiced him and denied him a fair trial. In support of his claim, Pace attached to his motion for a new trial an affidavit from Kate R. Weisburd, an employee of the Southern Center for Human Rights in Georgia. (C. 1345, 1357.) In her affidavit, Weisburd states: "6. On March 2, 2002 I interviewed [J.B.], a juror that served on the February 2002 Levi Pace trial in Morgan County, Alabama.... "7. [J.B.] informed me that during the trial, and before deliberations, she spoke to a friend on the phone. During this conversation, the friend mentioned an article in the paper about Mr. Pace's first trial. The friend mentioned that a previous conviction had been overturned because of an issue that dealt with race and the composition of the grand jury. "8. [J.B.] also informed me that during the trial, and before deliberations, she asked a Bailiff if this was indeed Mr. Pace's first or second trial. [J.B.] said that the Bailiff told her that they could not answer that question and instructed her to ask the other jurors if this was Mr. Pace's first or second trial. 344 "9. [J.B.] informed me that on the instruction of the Bailiff, she asked several other jurors if this trial was Mr. Pace's first or second trial. [J.B.] informed me that the group of jurors she asked all said that this was indeed Mr. Pace's second trial. [J.B.] indicated that this conversation took place before deliberations began." On remand, the trial court addressed this issue. In its order, the court wrote: "In paragraph numbered 10 of the appellant's motion for a new trial, attorneys for Mr. Pace argue that Mr. Pace was prejudiced by [a juror's] access to improper information and conduct. The motion alleges that [J.B.], a sequestered juror, was allowed to call a friend, [R.H.], who told her about newspaper articles being printed during the trial of the case and further alleged that [J.B.] learned that the defendant had been previously convicted for the crime for which he was on trial and that the conviction was reversed due to an issue involving race and the grand jury. Mr. Pace relies on the affidavit of one Kate Weisburd, who is an employee of an investigator for the Southern Center for Human Rights and Chris Adams, attorney for the appellant. [J.B.] testified on August 8, 2003 that [R.H.] was her neighbor but that during the trial of the case she had no knowledge of the prior conviction of Levi Pace, that [R.H.] never informed her, further that she never asked any bailiff about the prior conviction and that she never asked any jurors about the subject. It was not until after the case was over that she learned that Levi Pace had been previously convicted of this offense. "On September 2, 2003 the Court conducted a second hearing on this matter and took testimony from the witness, [R.H., who had been a member of the jury venire but was struck]. [R.H.] stated that he was in fact friendly with [J.B.] or more specifically, [J.B.] was a friend to his wife. He further testified to the best of his memory he did not discuss the case with [J.B.]. He further stated that he did not talk to [J.B.] from the time he got released as a potential juror until the time the trial was over and that he did not have any conversation with [J.B.] while he was serving as a potential juror at the Morgan County Courthouse. He further stated that he knew well not to talk to others about any of the pending cases and that he did not conduct himself in any improper way. "It is the Court's finding that the information contained in the affidavit of Katie Weisburd is unfounded and untrue and that neither [J.B.] nor any other juror was prejudiced by their access to improper information or involved in any misconduct during the course of the trial of Levi Pace." Based upon the findings of the trial court, we conclude that Pace's argument is without merit. The trial court's denial of Pace's posttrial motion on this ground was not error.[2] See Perry, supra. II. Pace next argues that the trial court erred in sequestering the jury because, he contends, the jury was housed in a Holiday Inn motel across the street from 345 the Days Inn motel where the crime at issue occurred. Before trial, Pace requested that the jury not be sequestered at the Holiday Inn motel because, he argued, the Days Inn motel, where the offense occurred, could be seen from the Holiday Inn motel. (R. 1486-1501.) The trial judge responded that he was familiar with the Holiday Inn motel and the Days Inn motel, that it was very difficult to see the Days Inn motel from the Holiday Inn motel, that the sequestered jurors would be taken to and from their motel via a route away from the Days Inn motel, that the rooms reserved for the jurors were on the end of the Holiday Inn motel opposite the Days Inn motel, that the jurors would be precluded from being placed in a position which would allow them a view of the Days Inn motel, that the events in this case happened inside the Days Inn motel, that the Holiday Inn motel was the best place to house the jurors, that most of the jurors were likely familiar with the Days Inn motel, and that he would revisit the site to determine if there were any real risks in housing the jurors at the Holiday Inn motel. (R. 1492-96, 1499-1501.) Before the jurors were taken to the Holiday Inn motel, the trial court directed the bailiffs who would be accompanying them to take a route to and from the courthouse that would allow the jurors to avoid the Days Inn motel and to keep the jurors from any area of the Holiday Inn motel that would enable them to view the Days Inn motel. (R. 1572-74.) Pace did not present evidence indicating that any juror gained extraneous information about the crime that prejudiced him by being housed at the Holiday Inn motel. Absent such a showing, Pace is not entitled to prevail on this claim. See, generally, DeBruce v. State, supra, in which we noted that the defendant failed to meet his burden of establishing that the jury was tainted or prejudiced. III. Lastly, Pace contends that the evidence was insufficient to sustain his conviction. He argues that the only evidence linking him directly to the attempted robbery and shooting of Hargrove in December 1991 was the uncorroborated testimony of Linda Jones. Pace further argues that Rule 404(b), Ala.R.Evid., evidence of collateral crimes is not "substantive evidence" and may not be considered as corroborative evidence to sustain a conviction.[3] "A person commits the crime of [felony] murder if ... [h]e commits or attempts to commit ... robbery in any degree ... and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person." § 13A-6-2(a)(3), Ala.Code 1975. "`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond 346 a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). Section 12-21-222, Ala.Code 1975, states: "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient." In Arthur v. State, 711 So.2d 1031, 1059-60 (Ala.Crim.App.1996), aff'd, 711 So.2d 1097 (Ala.1997), we wrote: "`An accomplice's testimony must be supported by evidence connecting the defendant with the commission of the offense rather than merely showing that the offense occurred or the circumstances thereof. Code of Alabama 1975, 12-21-222; Miles v. State, 476 So.2d 1228 (Ala.Cr.App.1985); Jackson v. State, 451 So.2d 435 (Ala.Cr.App.1984).' Hodges v. State, 500 So.2d 1273, 1275 (Ala.Cr.App.1986). "`"Corroboration need only be slight to suffice." Ingle v. State, 400 So.2d 938, 940 (Ala.Cr.App.1981). "While corroborating evidence need not be strong, it `... must be of substantive character, must be inconsistent with the innocence of a defendant and must do more than raise a suspicion of guilt.' McCoy v. State, 397 So.2d 577 (Ala.Crim.App.), cert. denied, 397 So.2d 589 (Ala.1981)." Booker v. State, 477 So.2d 1388, 1390 (Ala.Cr.App.1985). "However, the corroboration need not be sufficiently strong by itself to warrant a conviction." Miles v. State, 476 So.2d 1228, 1234 (Ala.Cr.App.1985). The requisite corroborative evidence is determined by a process of elimination or subtraction. Caldwell v. State, 418 So.2d 168, 170 (Ala.Cr.App.1981). "The means for analyzing the evidence to determine if there is sufficient evidence to corroborate testimony of an accomplice is to set aside the accomplice's testimony and determine whether or not the remaining evidence tends to connect the defendant with the commission of the offense." Leonard v. State, 459 So.2d 970, 971 (Ala.Cr.App.1984). "Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions for the jury." Caldwell v. State, supra, at 170. Circumstantial evidence is sufficient to show corroboration. Jackson v. State, 451 So.2d 435, 437 (Ala.Cr.App.1984). See also McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).' "Hodges v. State, 500 So.2d at 1275-76. "In Ware v. State, 409 So.2d 886 (Ala.Cr.App.1981), writ quashed, 409 So.2d 893 (Ala.1982), this court quoted Andrews v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979), stating: "`"The corroboration of an accomplice must tend to connect the accused 347 with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. `Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.' Malachi v. State, 89 Ala. 134, 140-141, 8 So. 104, 106 (1889); Smith v. State, 230 Ala. 413, 416, 161 So. 538 (1935); Brown v. State, 31 Ala.App. 529, 19 So.2d 88 (1944). The corroborative evidence need not be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941). Corroborative evidence need not directly connect the accused with the offense but need only tend to do so. State v. Canada, 107 Ariz. 66, 481 P.2d 859, cert. denied, 404 U.S. 848, 92 S.Ct. 154, 30 L.Ed.2d 87 (1971). See Pearce v. State, 26 Ala.App. 492, 495, 164 So. 114, cert. denied, 231 Ala. 150, 164 So. 118 (1935)(`(B)ut, as we read the cases, the corroboratory evidence, if it meets the test of "tending to connect the defendant with the commission of the offense," need not be, in and of itself alone, that tending in any wise to fasten guilt upon the defendant'); 23 C.J.S. Criminal Law § 812(3) (1961). The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime. Lowe v. State, 32 Ala.App. 176, 22 So.2d 618 (1945). The corroboration of an accomplice may be shown by circumstantial evidence. Blevins v. State, 56 Ala.App. 115, 319 So.2d 734, cert. denied, 294 Ala. 753, 319 So.2d 739 (1975); Tidwell v. State, 23 Ala.App. 409, 126 So. 186 (1930). "`"In certain instances, association with the accomplice tending to show the accused's proximity, chronologically and geographically, to the alleged offense may furnish sufficient corroboration. Ross v. State, 74 Ala. 532 (1883); DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948)." 370 So.2d at 322.' "409 So.2d at 891. "Thus, to constitute sufficient corroboration, a fact or circumstance may tend to support the accomplice's version, thereby confirming his credibility, but in order to provide sufficient corroboration of accomplice testimony, the evidence must connect the accused with the commission of the offense. Jackson v. State, 451 So.2d 435, 437 (Ala.Cr.App.1984)." And in Ware v. State, 409 So.2d 886, 891 (Ala.Crim.App.1981) (quoting Jacks v. State, 364 So.2d 397, 405 (Ala.Crim.App.1978)), we observed: "`Additionally, sufficient corroboration of the testimony of an accomplice may be furnished by a tacit admission by the accused, by the suspicious conduct of the accused, and the association of the accused with the accomplice, or by the defendant's proximity and opportunity to commit the crime.'" The evidence at trial established that, between midnight and 1:00 a.m. on December 13, 1991, Jerry Hargrove, the desk clerk at the Days Inn motel in Decatur, Alabama, was shot and killed. The employees of CSX railroad frequented the Days Inn motel during their layovers in 348 Decatur. The last person known to have seen Hargrove alive, other than the murderer, and the individuals who found Hargrove's body were CSX employees. (R. 1612-14, 1632-33, 1749-50.) Pace was familiar with the Days Inn motel because he had been employed in the restaurant on the premises in 1989. (R. 1981.) Linda Jones testified that on December 13, 1991, Pace picked her up near her home in Adamsville, and that she and Pace headed to Decatur "looking for something to rob." Jones testified that they drove by the Days Inn motel, circled it a couple of times, and saw a young man at the desk. She stated that Pace gave her a pistol and took a second pistol from the glove compartment of his car. Jones testified that she and Pace entered the motel at the back near the swimming pool, and that she went to the front desk under the pretext of registering for a room. She stated that, when she saw that no one else was in the lobby area except the desk clerk, she motioned for Pace "to come on" and that Pace approached the registration desk with a red bandana tied around his face. Jones testified that Pace then "drew down at the man" and said, "hey, you know what time it is." Jones claimed that Hargrove started running "for his gun," and that she panicked and started running as well.[4] Jones said that while she was running, she heard two shots but did not see who fired the shots. Jones testified that Pace then told her to "come on, let's go." She asked Pace if the desk clerk had fired his weapon, and Pace told her, "No, I fired both shots." Pace also told her that he knew the first shot he fired hit the victim and that he thought he killed him. (R. 1762-63, 1766-72, 1878-79, 1895, 1900.) Jones denied taking her weapon out of the pocket of the jacket she was wearing and stated that they did not take any money on this occasion. (R. 1772-73.) Jones also testified that she and Pace had robbed the same Days Inn motel in Decatur in October 1991. She explained that the circumstances involving the first robbery of the Days Inn motel were very similar to the second robbery, in that both robberies were at night, that Jones and Pace "[c]ased it out" before entering, that they parked their vehicle in the same place, that they entered through the same door, that she went to the front desk to see if anyone else was in the lobby, that Pace approached the registration counter when she motioned for him, that Pace pointed the weapon at the female clerk, and that Pace told the female clerk, "hey, you know what time it is." Jones testified that the clerk got nervous and Pace jumped over the counter and took money from the cash drawer. Jones testified that Pace did not give her a weapon before this robbery and told her that if any shooting was necessary that she would not have to worry about it. (R. 1764, 1774-78.) Jennifer Johnson testified that on October 20, 1991, she was employed as the front desk clerk at the Days Inn motel in Decatur, and that she was robbed by two people, whom she identified as Jones and Pace. Johnson testified that Pace pointed a revolver at her, jumped over the counter, cocked back the hammer on the gun, and demanded money. She testified that Pace told her, "don't mash any buttons or I will kill you." After taking the money, Pace ordered her to go into an adjoining office, put the gun to the back of her head, and told her, "don't turn on any lights, and don't call the police or I will kill you." Johnson testified that she did not see 349 Jones with a weapon. (R. 1927-28, 1935, 1945-46, 1949-56, 1969-70.) Pace pleaded guilty to the October 1991 robbery and was sentenced to 45 years' imprisonment. (R. 1977.) Less than 48 hours after Hargrove was killed, Pace was involved in another motel robbery-shooting. Lois Blalock testified that she and her husband, Hershel, owned and operated the Alabama Lodge motel in Clanton. Lois Blalock testified that shortly after midnight on December 15, 1991, Pace and another male entered the motel and inquired about rooms, and Pace filled out a registration card. The fingerprints on the registration card were later identified as Pace's. (R. 2088-91.) When Lois Blalock looked up to see how Pace intended to pay for the room, Pace had a gun pointed at her face. Lois Blalock, who was sitting at a desk behind the registration counter, testified that she immediately slid down under the desk, but that Pace came around behind the registration counter and dragged her out. Lois Blalock testified that she was frightened and moaning loudly, and that Pace told her to be quiet or he would kill her. She stated that she was unable to quit moaning, and Pace shot her two times. Lois Blalock testified that Pace had her pinned to the floor by standing on her arms, that she continued to struggle with him, that she rammed her head into his crotch and that Pace stated, "[N]ow then I'm going to blow your head off." Hershel Blalock looked through a one-way mirror in the living area adjoining the hotel lobby and saw a man on top of his wife. Hershel grabbed his .22 rifle and opened the door leading into registration area, and Pace's accomplice fired three shots at him. Pace and his accomplice fled, but Pace paused, turned, and fired two more shots at Lois and Hershel Blalock, both of whom were lying on the floor. Lois Blalock was able to grab a pistol and fire her weapon several times at Pace and his accomplice as they fled. Lois Blalock was shot three times, in the wrist, buttock, and elbow; Hershel Blalock was shot twice, in the hip and back. (R. 2029-30, 2036-64, 2357-59, 2379-80.) Pace was tried, convicted, and sentenced to three consecutive life sentences for his role in the Clanton robbery-shooting. (R. 2120.) Brent Wheeler of the Alabama Department of Forensic Sciences testified that he was provided with five bullets and nine shell casings, recovered from the Clanton and Decatur crime scenes. One of the bullets was removed from Hershel Blalock's hip. Wheeler identified the bullets and shell casings as being .380 caliber, and he concluded that all of the bullets were fired from the same gun and that all of the casings were ejected from the same gun. He testified that the bullets and the casings were probably fired from the same gun. (R. 2073, 2237-44, 2250, 2260-61, 2269-70, 2355.) The bullet that killed Hargrove was fired from a .380-caliber weapon. (R. 1648, 1667, 1689, 1751-52.) The real issue is not whether the evidence supports the conclusion that Pace shot and killed Hargrove. Instead, the issue is whether the evidence supports the conclusion that Pace was with Jones on that fateful night when Hargrove was shot and killed. As the trial court explained to the jury in its final charge, the jury could find Pace guilty for felony murder under a complicity-liability theory. (R. 1560-61.) This charge is consistent with § 13A-6-2(a)(3) ("he, or another participant..., causes the death of any person"). Therefore, if the evidence supports that Pace was present for the purpose of robbing Hargrove at the time Hargrove was shot and killed, even if Jones fired the fatal shot, Pace is still guilty of felony murder. Pace's contention that evidence of the collateral crime may not satisfy the 350 "substantive" corroborative requirement is unfounded. This Court has previously stated that, as a rule, "`"collateral crimes may not be used as substantive evidence of guilt of the defendant."'" Johnson v. State, 820 So.2d 842, 861 (Ala.Crim.App.2000), quoting Tyson v. State, 784 So.2d 328, 344 (Ala.Crim.App.2000), quoting in turn Copeland v. State, 455 So.2d 951, 954-55 (Ala.Crim.App.1984). "`"However, there are several exceptions to this general rule,"'" including where the identity of the accused is at issue. Johnson, 820 So.2d at 861-62. In such a case, such as here where the defendant denies he committed the charged crime, the collateral crime evidence may be considered as substantive evidence of the defendant's guilt where the crime was "`"committed `in the same novel and peculiar manner' as the crime for which the accused is now charged."'" Johnson, 820 So.2d at 862. Similarly, in Ex parte Baker, 780 So.2d 677, 679-80 (Ala.2000), the Alabama Supreme Court wrote: "Rule 404(b) provides that evidence of a collateral act by the defendant is not admissible to prove the bad character of the defendant. `"Evidence of prior [or subsequent] bad acts of a criminal defendant is presumptively prejudicial to the defendant."' Bolden v. State, 595 So.2d 911, 913 (Ala.Crim.App.1991), cert. denied, 595 So.2d 914 (Ala.1992) (quoting Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983)). However, such evidence is admissible for other material purposes, including proof of identity. Rule 404(b). Collateral-act evidence is admissible to prove identity only when the identity of the person who committed the charged offense is in issue and the charged offense is committed in a novel or peculiar manner. C. Gamble, McElroy's Alabama Evidence § 69.01(8) (5th ed.1996); Ex parte Arthur, 472 So.2d 665 (Ala.1985); and Robertson v. State, 680 So.2d 929 (Ala.Crim.App.1994). `Under the identity exception to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the prior crime is not relevant to prove identity unless both that and the now-charged crime are "signature crimes" having the accused's mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person.' Bighames v. State, 440 So.2d 1231, 1233 (Ala.Crim.App.1983) (emphasis added). `[E]vidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime "exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person."' Ex parte Arthur, 472 So.2d at 668 (quoting Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983)). See also Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); and Govan v. State, 40 Ala.App. 482, 115 So.2d 667 (1959) (recognizing that the identity exception is applicable only where both the prior crime and the charged offense were committed in the same special or peculiar manner). "Regarding the admissibility of Rule 404(b) evidence to prove identity, the United States Court of Appeals for the Eleventh Circuit has stated that a court must determine that: "`(1) the evidence is relevant to an issue other than defendant's character; (2) there is sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the extrinsic act; and (3) the evidence possesses probative value outweighing any prejudicial effect.' "United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir.1994), cert. denied, 514 351 U.S. 1086, [115 S.Ct. 1801,] 131 L.Ed.2d 728 (1995). `When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused.' Id. at 1508 (quoting United States v. Miller, 959 F.2d 1535, 1539 (11th Cir.19920) (quoting United States v. Beechum, 582 F.2d 898, 912 n. 15 (5th Cir.1978) (en banc))). See also United States v. Cardenas, 895 F.2d 1338, 1343 (11th Cir.1990); and C. Gamble, McElroy's Alabama Evidence § 69.01(8)(stating that a greater degree of similarity between the charged offense and the collateral act is required for admissibility to prove identity than for admissibility to prove intent or knowledge)." (Footnote omitted.) While the Alabama Supreme Court concluded that the collateral evidence in Baker, 780 So.2d at 680, did not establish that the crimes were committed in a "unique, novel, or peculiar manner," the collateral crime evidence in the present cause established that the same location was robbed on two occasions within a matter of a few weeks of each other; that Pace and Jones committed the first robbery; that Pace committed another robbery at a motel in Clanton within 48 hours of the December 1991 robbery of the Days Inn motel; that the same weapon used to shoot the victims in the Clanton robbery was also used to shoot Hargrove; that Pace kept two or more weapons in the glove compartment of his car; and that Pace would and did shoot victims who resisted his robbery attempts. This evidence, though circumstantial in nature, is sufficient to corroborate the testimony of Linda Jones that Pace was present during the attempted robbery and murder of Hargrove. In McGowan v. State, [Ms. CR-95-1775, Dec. 12, 2003], ___ So.2d ___, ___ (Ala.Crim.App.2003), we observed that the State is not required to produce corroborative evidence of each element of the offense or of each fact testified to by the accomplice; rather, the State is only required to present "other evidence" that connects the defendant to the offense. In concluding that sufficient corroborative evidence was produced by the State, we wrote: "We need look no further than the independent-witness testimony that [the defendant] procured the murder weapon shortly before the crimes and that he and [an accomplice] fled to other states following the murders." See also Johnson v. State, 820 So.2d at 869 ("When the testimony of the accomplice is subtracted, the remaining testimony does not have to be sufficient by itself to convict the accused."). In this case, Pace's connection to the murder weapon and to the Days Inn motel, where the murder occurred, is sufficient corroborative evidence of his guilt. The trial court's denial of Pace's motions for a new trial and for a judgment of acquittal was not error. The judgment of the trial court is affirmed. AFFIRMED. McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur. NOTES [1] This was Pace's second trial on capital-murder charges. See Pace v. State, 714 So.2d 316 (Ala.Crim.App.1995), on return to remand, 714 So.2d 320 (Ala.Crim.App.1996), rev'd in part, 714 So.2d 332 (Ala.1997). [2] "[I]n a criminal case, a motion for new trial filed within 30 days after conviction or sentence is not waived by a notice of appeal, `regardless of the sequence in which the notice of appeal and the motion are filed.'" Ex parte Walker, 652 So.2d 198, 199 (Ala.1994) (quoting Melvin v. State, 583 So.2d 1365, 1367 (Ala.Crim.App.), on return to remand, 588 So.2d 939 (Ala.Crim.App.1991)). [1] Clyde Cook admitted that he was a convicted drug dealer and that he was serving time in prison at the time of trial, that he was a former lover of Jones's, and that he had "used" Jones and other women. (R. 2328-30.) [2] Pace's counsel also eluded to a prior trial. On countless occasions, during cross-examination of witnesses, he referred to a "transcript" of "sworn testimony," and on one occasion while reading from the transcript, Pace's counsel asked Dwight Hale, a Decatur police officer: "And the next question was, `Did you hear [Linda Jones] tell the jury that,' and what is your answer." (Emphasis added.) (R. 2205.) [3] Pace "does not contest the admission of the Rule 404(b) evidence," but notes that "it was admitted for a limited purpose and not as substantive evidence." Brief of appellant at 44. [4] A .38-caliber Ruger revolver, with the hammer cocked, was found near Hargrove's body. (R. 1616, 1665.)	{ "pile_set_name": "FreeLaw" }
108 Cal.App.2d 355 (1951) ROWENA MORSE, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents. Civ. No. 14990. California Court of Appeals. First Dist., Div. One. Dec. 27, 1951. Hoffman, Davis & Martin for Petitioner. Edmund J. Thomas, Jr., T. Groezinger, Alvin L. Dove and Leonard, Hanna & Brophy for Respondents. WOOD (Fred B.), J. The sole question upon this appeal is whether or not section 4702 of the Labor Code, as amended in 1939, accorded to the total dependent of a deceased employee a death benefit of $2,000 even though the disability indemnity which had accrued to the employee exceeded that amount, and death occurred more than 12 months after the injury. We conclude that it did. [1, 2] Section 4702, as amended by chapter 308 of the Statutes of 1939, pages 1580-1581, read as follows: "4702. The death benefit shall be a sum sufficient to equal:" "(a) In a case of total dependency, three and one-half times the average annual earnings of the deceased employee." "(b) In a case of partial dependency only, three and one-half times the amount annually devoted to support of the dependents by the employee." "The death benefit shall be paid in installments in the same manner and amounts as disability indemnity, payments to be 356 made at least twice each calendar month, unless the commission otherwise orders. [TEXT STRICKEN]-[In]- [TEXT STRICKEN]-[no]- [TEXT STRICKEN]-[case]- [TEXT STRICKEN]-[shall]- Except as provided in the next paragraph the death benefit, when added to all accrued disability indemnity, shall not exceed three and one- half times the average annual earnings of the employee as limited in section 4452, nor exceed the sum of [TEXT STRICKEN]-[$5,000]- $6,000, except as otherwise provided in sections 4553 and 4554. For a total dependency the minimum death benefit shall be $2,000." "If death occurs within twelve months after injury, disability indemnity shall not be deducted from the death benefit and shall be paid in addition to the death benefit." (Strikeout and italics supplied, to indicate deletions and additions made by the 1939 amendment.) This section, obviously, was designed to fix the amount of death benefit payable, starting as it did with the words, "The death benefit shall be a sum sufficient to equal. ..." It provided, in clauses (a) and (b), different formulae for computing total and partial dependency benefits. Next, it dealt with the times of payment, in installments, and then imposed a maximum limitation; neither the total nor the partial dependency benefit (when added to the disability indemnity, if death occurred more than 12 months after injury) could exceed three and one-half times average annual earnings, nor $6,000. Then followed the statement, "For a total dependency, the minimum death benefit shall be $2,000." That statement speaks for itself. Its meaning is so directly and immediately clear and manifest, one encounters difficulty in finding other words in which to express the identical concept. Perhaps these words will serve: "For a total dependency the least amount of death benefit payable shall be $2,000." (See Dauphiny v. Buhne, 153 Cal. 757, 765 [96 P. 880, 126 Am.St.Rep. 136]: "Minimum as applied to damages means the least possible amount that may be awarded ...") The conclusion seems inescapable that by this statement the Legislature intended to prevent the maximum limitation formula from reducing the death benefit, for a total dependent, to an amount below $2,000. Respondents say that the statement under consideration cannot have the effect we accord it because it occurs in the same paragraph as the sentence which expresses the maximum limitation, and the latter by its introductory words ("Except as provided in the next paragraph") inexorably recognizes as the sole exception to its provisions that which appears in the next paragraph ("If death occurs within twelve months 357 after injury, disability indemnity shall not be deducted ..."). Such a construction puts undue emphasis upon punctuation and sentence structure, and renders purposeless and ineffectual the $2,000 minimum provision. The mere fact that the latter is separated from the former by a period, instead of a comma or semicolon and a qualifying word or two as in the concluding clause of the former ("except as otherwise provided in sections 4553 and 4554"), is of no real significance and should not prevent us from ascertaining the legislative intent and giving it effect. One of the respondents argues that their view of section 4702 does not render the $2,000 minimum meaningless or useless, upon the theory that it has the same meaning as in section 4452. But there it is used in connection with a multiplication factor (three and one-half times average annual earnings shall be taken, in death cases, at not less than $2,000),--quite different from its use in section 4702, which fixes the amount of death benefit payable. Why repeat it in section 4702, and why repeat it only as to total dependents, if it is to have no effect different from or greater than that already given it in section 4452, especially when section 4702 already by specific reference incorporated the limitations expressed in 4452? The main principle of statutory interpretation requires a court to ascertain the legislative intent and give it effect if possible. (See Code Civ. Proc., 1859, and County of Alameda v. Kuchel, 32 Cal.2d 193, 199 [195 P.2d 17].) In applying that principle, the court is aided, in the instant case, by the legislative declaration in section 3202 of the Labor Code, that "The provisions of Division IV [sections 3201-6002] ... of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." (See Colonial Ins. Co. v. Industrial Acc. Com., 27 Cal.2d 437, 439-440 [164 P.2d 490], and cases cited.) We recognize the principle that when a statute is ambiguous the administrative interpretation, in this case that of the respondent commission, is given serious consideration. We have given it that consideration but do not find such a degree of ambiguity in the statute as would justify us in following the administrative interpretation. In the instant case, the employee sustained a compensable injury February 26, 1946. He died July 25, 1950, as a proximate result of the injury. His accrued temporary disability *358 indemnity amounted to $6,870. His widow, petitioner herein, was a total dependent. The respondent commission correctly awarded her the sum of $300 as reasonable burial expense, subject to a lien of $35 payable to her attorneys, but erroneously denied her the minimum death benefit of $2,000. The findings and award under review are annulled, with directions to respondent commission to make new findings and award in accordance with this decision, awarding petitioner the $2,000 minimum death benefit as well as the burial expense and the attorney's fee. Peters, P. J., and Bray, J., concurred.	{ "pile_set_name": "FreeLaw" }
660 F.3d 454 (2011) UNITED STATES of America, Plaintiff-Appellee, v. Gregory L. REYES, Defendant-Appellant. No. 10-10323. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 10, 2011. Filed October 13, 2011. 458 Amber S. Rosen, Assistant United States Attorney (argued), Brian J. Stretch, 459 Attorney for United States, Barbara J. Valliere, Chief, Appellate Division, Adam A. Reeves, Assistant United States Attorney, San Jose, CA, for plaintiff-appellee United States. Seth P. Waxman (argued), Peters G. Neiman, Edward C. DuMont, Micah S. Myers, Sue-Yun Ahn, Shivaprasad Nagaraj, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for defendant-appellant Gregory L. Reyes. Before: RONALD M. GOULD and MILAN D. SMITH, JR., Circuit Judges, and ALGENON L. MARBLEY, District Judge.[] OPINION M. SMITH, Circuit Judge: Defendant-Appellant Gregory Reyes, the former Chief Executive Officer of Brocade Communications (Brocade, or the Company), appeals his conviction in a second criminal trial for (1) securities fraud and making false filings with the Securities and Exchange Commission (SEC) in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17 C.F.R. § 240.10b-5; (2) falsifying corporate books and records in violation of 15 U.S.C. §§ 78m(b)(2)(A) and 78ff, and 17 C.F.R. § 240.13b2-1; and (3) making false statements to auditors in violation of 15 U.S.C. § 78ff and 17 C.F.R. § 240.13b2-2. Reyes was previously convicted of violating these statutes, but we vacated that conviction because of prosecutorial misconduct, and remanded for a new trial. United States v. Reyes, 577 F.3d 1069 (9th Cir. 2009). In this appeal, Reyes contends that his second conviction should also be vacated, and the case dismissed, because of (a) prosecutorial misconduct, (b) insufficient evidence of materiality to support his conviction, and (c) various evidentiary and instructional errors at trial. We affirm. FACTUAL BACKGROUND Backdated Stock Options Brocade develops and sells data switches for networks. It became a publicly traded company in 1999. Reyes was hired in 1998, and during his tenure served as CEO and Chairman of the Company's Board of Directors (Board). Brocade offered stock options to its newly hired employees, and its employees generally could also earn stock options through annual incentive programs. These options gave employees the right to purchase Brocade stock at a fixed exercise (strike) price on or after a specific vesting date. A stock option is "in-the-money" if the strike price is below the stock's current market value. "Backdating" stock options means that an option's grant date and strike price are recorded retroactively. During the relevant time period, backdating of Brocade stock options was not illegal as long as the benefit to Brocade employees was recorded on the Company's financial records as a non-cash compensation expense to Brocade. See Reyes, 577 F.3d at 1073. This accounting treatment was required by the then-applicable Accounting Principles Board Opinion No. 25 (APB 25).[1] It is 460 undisputed that the stock options relevant to this appeal were backdated, and were not properly entered in the Company's books, as then required by APB 25. Reyes approved grants of stock options to Brocade employees from 2000 through 2004. Company policies permitted Reyes (as a sort of one-person committee) to approve grants of stock options to non corporate officer employees. However, a committee of outside directors, who comprised the Compensation Committee, was required to approve the grant of stock options to Company officers and the full Board of Directors was required to approve the grant of stock options to non-officer directors. Committee minutes or unanimous written consents were used to document the number of options granted to specific employees as of a particular date. Procedural history In 2004, Brocade's Board of Directors began investigating some of the Company's accounting practices with respect to the granting of stock options to new employees. In early 2005, Brocade changed some of its accounting practices, and announced that Reyes had resigned as CEO and Chairman. Concerned, the SEC and Department of Justice undertook a joint investigation into Brocade's option accounting, which led to the SEC filing civil complaints against Reyes and several others involved in the granting of stock options and accounting practices at Brocade. On August 10, 2006, the Government charged Reyes with committing criminal securities fraud, mail fraud, falsifying corporate books and records, and violating related statutes and regulations. In August 2007, Reyes was found liable on all counts except the mail fraud charge, which was dismissed before trial. On appeal, we vacated Reyes's conviction and remanded for a new trial after finding prosecutorial misconduct. Reyes, 577 F.3d at 1078-79. Specifically, we held that the prosecution knew that several employees of Brocade's Finance Department had given pre-trial statements to the Federal Bureau of Investigation acknowledging that the Finance Department knew about Reyes's and the Company's stock option backdating practices, but that during closing argument, the prosecution knowingly and falsely claimed that the Finance Department did not know about the stock option backdating. Id. at 1076-77. We held that this deception was material because it went to Reyes's defense that he relied on others. Id. at 1078. After a second five-week jury trial in February 2010, Reyes was acquitted on a conspiracy charge but convicted on all other counts, including: (1) securities fraud and making false filings with the Securities and Exchange Commission (SEC) in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17 C.F.R. § 240.10b-5; (2) falsifying corporate books and records in violation of 15 U.S.C. §§ 78m(b)(2)(A) and 78ff, and 17 C.F.R. § 240.13b2-1; and (3) making false statements to auditors in violation of 15 U.S.C. § 78ff and 17 C.F.R. § 240.13b2-2. Reyes was sentenced to 18-months imprisonment, two years of supervised release, and was fined $15,000,000. Reyes timely appeals. JURISDICTION AND STANDARDS OF REVIEW We have jurisdiction under 28 U.S.C. § 1291. 461 We review the district court's rulings on alleged prosecutorial misconduct for an abuse of discretion. United States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002); see also United States v. Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002) (applying abuse of discretion standard to the denial of a motion for new trial based on prosecutorial misconduct). Issues of prosecutorial misconduct involving mixed questions of fact and law are reviewed de novo. United States v. Bracy, 67 F.3d 1421, 1433 (9th Cir. 1995). Harmless error review applies when a defendant timely objects to prosecutorial misconduct. United States v. Blueford, 312 F.3d 962, 973-74 (9th Cir. 2002). When reviewing for prosecutorial misconduct, we consider in the context of the entire trial "whether it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial." United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985). Plain error review applies when a defendant fails to object to alleged prosecutorial misconduct before the district court. United States v. Sullivan, 522 F.3d 967, 982 (9th Cir. 2008); United States v. Geston, 299 F.3d 1130, 1134 (9th Cir. 2002). To establish plain error, a defendant must establish that (1) there was error, (2) the error was plain, and (3) the error affected his "substantial rights." Geston, 299 F.3d at 1135. "Under this standard, a conviction can be reversed only if, viewed in the context of the entire trial, the [claimed] impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings, or where failing to reverse a conviction would result in a miscarriage of justice." Id. (citation omitted). We review de novo the question of whether a trial court's jury instruction accurately states the law. United States v. Hopper, 177 F.3d 824, 831 (9th Cir. 1999). We review for abuse of discretion a district court's formulation of jury instructions. United States v. Franklin, 321 F.3d 1231, 1240-41 (9th Cir. 2003), cert. denied, 540 U.S. 858, 124 S.Ct. 161, 157 L.Ed.2d 106 (2003). Thus, while the question of whether the district court's instructions adequately covers a defense theory is reviewed de novo, we "look to the instructions as a whole and a refusal to give a proper specific instruction can be remedied by other instructions that cover the subject." United States v. Thomas, 612 F.3d 1107, 1122 (9th Cir. 2010) (internal citations omitted). There must be sufficient evidence to constitutionally support a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be viewed in the light most favorable to the Government to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Id.; United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). We "may not usurp the role of the finder of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." Nevils, 598 F.3d at 1164. Evidence is sufficient where it "is adequate to allow `any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). DISCUSSION I. Prosecutorial Misconduct A. Reyes claims that the Government asserted a new, false theory at his second trial; specifically, that Reyes "grant[ed] ... in-the-money options to himself" to "pad his own pocket." Reyes argues it was prosecutorial misconduct to focus on this theory when, as the prosecution 462 knew, Reyes could not grant himself options because the Compensation Committee had to approve all options granted to him. In particular, Reyes objects to testimony and exhibits highlighted at trial by the Government where Reyes's name was listed next to other employees to whom he granted options. Reyes concedes that he did not object at trial to the prosecutor's allegedly improper conduct of introducing evidence that Reyes granted himself stock options. Accordingly, we review this aspect of Reyes's claim of prosecutorial misconduct for plain error. Geston, 299 F.3d at 1134. We review Reyes's claims of prosecutorial misconduct in the light of clearly established legal principles. The "prosecutor's job isn't just to win, but to win fairly, staying well within the rules." United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). "[I]t is improper for the government to present to the jury statements or inferences it knows to be false or has very strong reason to doubt." Reyes, 577 F.3d at 1077. It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true. But it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt, particularly when it refuses to acknowledge the error afterwards to either the trial court or this court and instead offers far-fetched explanations of its actions. Blueford, 312 F.3d at 968. Faithful adherence to these principles is particularly important because a "prosecutor's opinion carries with it the imprimatur of the Government" and making false or misleading assertions "may induce the jury to trust the Government's judgment rather than its own view of the evidence." Reyes, 577 F.3d at 1077 (quoting United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Viewed in the light of these authorities, Reyes fails to establish that there was prosecutorial misconduct at his second trial regarding this aspect of his claim. What the Government argued at the second trial was that Reyes's motivation for engaging in a fraudulent scheme, in part, was to personally profit. To substantiate its theory, the Government introduced evidence showing the significant number of stock options Reyes received (thirteen million), the value of those options (approximately $130 million for eleven million in-the-money options), that he made almost $2 million from exercising some of his backdated options and that Reyes received almost six times the amount of options granted to any other officer or employee of the Company. The Government also presented evidence that Reyes was involved in the process of granting stock options to himself because he signed lists of grant options with his name on them. For example, Reyes several times signed lists of stock option grants, which included his own name along with those of non-officer employees. By signing his name to the lists, Reyes was also able to influence the date of his grants to match those of certain non-officer employees. In one instance, Reyes received almost $4 million in options for an April 17, 2001 stock price, the same date as the date applicable to the stock grants he made to certain non-officer employees, even though he did not obtain the Compensation Committee's final approval for, or ratification of, the grant until May 2001. Presenting this evidence did not rise to the level of prosecutorial misconduct because the Government was not pursuing an invalid theory of the case, but rather was showing 463 Reyes's involvement in the process of granting backdated stock options. Moreover, the Government clarified any confusion that might have flowed from the referenced setting by proffering testimony from its own expert that technically, in accordance with Brocade's own internal rules, the Compensation Committee was required to approve stock options granted to Reyes. In short, the evidence the Government presented was not false (Reyes did sign off on the lists showing grants of backdated stock options to himself and to certain non-officer employees), and the Government did not impermissibly ask the jury to draw false inferences from the evidence presented at trial about Reyes's role in the process of granting backdated stock options to himself because the prosecution acknowledged that ultimately the approval of the Compensation Committee was required, even if that approval was simply pro forma. Cf. Reyes, 577 F.3d at 1078. In this way, the Government sought to show that Reyes knowingly benefitted from the scheme by approving the dates and lists, some of which included his name as a backdated stock option recipient. Without evidence of the Government's relying on known false or misleading statements, Reyes's allegations of this type of prosecutorial misconduct do not rise to the level of improper conduct that "so affected the jury's ability to consider the totality of the evidence fairly that it tainted the verdict and deprived [Reyes] of a fair trial." United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005) (quoting United States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992)). B. Reyes also asserts that the Government's introduction of evidence that between 2000 and 2004 Reyes received eleven million backdated options (out of a total of thirteen million), worth approximately $130 million, and that he exercised 40,000 of his backdated options in September 2000, for a gain of approximately $2 million (collectively, the Option Gains Evidence), was irrelevant, unduly prejudiced the jury, and constituted prosecutorial misconduct. We disagree. Reyes does not explain how the admission of such allegedly irrelevant or unfairly prejudicial evidence constitutes prosecutorial misconduct, and we fail to see independently how it does. See Fed. R.Evid. 401, 403; see also, e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We will not manufacture arguments for [a party]...."). The Option Gains Evidence was based on facts and testimony introduced at trial and the inferences that flowed therefrom were linked to Reyes's motives. See Reyes, 577 F.3d at 1077. Moreover, because we conclude below that the Options Gains Evidence was properly admitted, Reyes cannot rely on the admission of that evidence to demonstrate prosecutorial misconduct. See United States v. Hinton, 31 F.3d 817, 824 (9th Cir. 1994). Tellingly, Reyes also did not object to the introduction of the Options Gains Evidence on prosecutorial misconduct grounds; he simply raised an evidentiary objection to its admission. "Evidentiary rulings will be reversed for abuse of discretion only if such nonconstitutional error more likely than not affected the verdict." United States v. Tran, 568 F.3d 1156, 1162 (9th Cir. 2009) (citation omitted). The district court permitted the introduction of the Options Gains Evidence because it related to motive, knowledge, and intent, and because it demonstrated that Reyes made money in the backdating scheme. On the other hand, the district court showed sensitivity to undue prejudice concerns when it forbade the introduction of evidence that Reyes made $500 million from the sale of Brocade stock, 464 reasoning that such evidence was unduly prejudicial, whereupon the parties agreed that the jury would be told only that Reyes sold "a significant amount of Brocade stock" between 2000 and 2004. The Government was not permitted to introduce evidence simply to show that Reyes was wealthy. See, e.g., United States v. Mitchell, 172 F.3d 1104, 1108-09 (9th Cir. 1999) ("A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value."). However, the Government was allowed to introduce evidence about Reyes's motivation for his involvement in the backdating scheme, his scienter, even if such evidence is generally not sufficient, standing alone, to prove intent to defraud. Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 325, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ("While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree ... that the absence of a motive allegation is not fatal."); Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 948 (9th Cir. 2005) (mere motive to commit fraud is insufficient to adequately plead scienter); United States v. Quattrone, 441 F.3d 153, 187 (2d Cir. 2006) (permitting evidence of executive compensation where the introduction of the evidence was for the limited purpose of demonstrating motive and not simply wealth). Consistent with these authorities, the district court permitted the introduction of relevant and not unfairly prejudicial evidence related to Reyes's motive. Reyes's gains from backdated options permitted the jury to draw a reasonable inference that he knew what he was doing, and how the scheme operated to his benefit. Reyes also fails to demonstrate that the Government sought a verdict from the jury based on Reyes's wealth, instead of with respect to his conduct related to backdated stock options. The jury was properly instructed as to the elements of the relevant crimes, including specific willfulness and intent on Reyes's part to defraud, a heightened standard from mere motive. There was also significant evidence in the record that Reyes knowingly participated in a scheme that he recognized was illegal. The jury was also presented with evidence by both parties showing the amount of gain actually made by Reyes, approximately $2 million, and that he did not exercise or receive the full potential gain of $130 million that could have been realized on his backdated options. Under these circumstances, we conclude the Options Gains Evidence constituted probative evidence of Reyes's motive, knowledge, and intent to participate in the backdating scheme, and its admission into evidence fell far short of meeting the level required to find unfair prejudice. See United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) ("Under the terms of the rule, the danger of prejudice must not merely outweigh the probative value of the evidence, but substantially outweigh it."); United States v. Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987) (stating that Rule 403 is "an extraordinary remedy to be used sparingly"). C. Reyes further argues that the Government committed prosecutorial misconduct in its questioning of two witnesses. Specifically, Reyes contends that through the testimony of Stephen Beyer, a former employee in Brocade's Human Resources department, the Government furthered the false impression that Brocade's options-pricing process was "secretive and unusual." Reyes similarly objects to the introduction of the testimony of Carol Bowie, a consultant with ISS Governance Services, 465 who discussed Brocade's governance and compensation practices. Reyes fails to show how the introduction of the Beyer or Bowie evidence constitutes prosecutorial misconduct. Reyes does not demonstrate that Beyer gave any false testimony related to his experience with accounting practices at KLA-Tencor, and then Brocade. Beyer testified on direct examination that he was instructed not to use email at Brocade to discuss backdating stock options, in order to avoid an "audit trail" for an "incorrect practice." Defense counsel then cross-examined Beyer about his work at KLA-Tencor, and that company's practice of backdating stock options. Defense counsel then introduced evidence of emails sent to Beyer at KLA-Tencor showing a list of backdated stock options to undermine Beyer's credibility and to show that backdating was a common practice. On redirect, the Government sought to distinguish KLA-Tencor's process of pricing stocks with the backdating process at Brocade. Approximately a week after Beyer's testimony, defense counsel raised an objection to his testimony on prosecutorial misconduct grounds. According to Reyes, the Government's effort to distinguish the two practices was prosecutorial misconduct, because the Government surely knew that backdating was occurring at KLA-Tencor. The district court denied the objection on the ground that the witness did not give false testimony because the questions posed on redirect were related to Beyer's own knowledge of the practices at KLA-Tencor.[2] The district court did not abuse its discretion in finding that there was no prosecutorial misconduct based on the Government's questioning of Beyer on redirect. Beyer's direct testimony dealt with his concerns about Brocade's stock option practices, when compared with his experiences at KLA-Tencor. The defense sought to impeach Beyer on the grounds that he was not a credible witness and that he had lied about his experience at KLA-Tencor, in order to show that he did not actually have concerns about Brocade's practices. On redirect, the Government asked questions that were specifically related to Beyer's personal knowledge about KLA-Tencor's practices, and did not seek an inference that, regardless of any knowledge Beyer may have had, the KLA-Tencor never backdated its stock options. Because there is no evidence that Beyer knowingly offered false testimony, or that the Government sought to draw false inferences beyond Beyer's personal knowledge testimony, Reyes fails to show prosecutorial misconduct. See Reyes, 577 F.3d at 1077 (finding prosecutorial misconduct where the Government made statements that it knew, or had very strong reasons to doubt, that such statements were accurate). Moreover, even if the district court did err in permitting Beyer's testimony, it was harmless. See Blueford, 312 F.3d at 973-74. Three other witnesses from Brocade's Human Resources department testified that they thought the backdating practices at Brocade were improper. The jury was specifically instructed that backdating was not in and of itself 466 illegal. The jury also heard other testimony that a significant number of other companies had engaged in backdating as a routine practice. Accordingly, whether the jury knew specifically about KLA-Tencor's backdating practices from Beyer was unlikely to substantially affect the jury's verdict. See McKoy, 771 F.2d at 1212. The district court also did not abuse its discretion when it denied defense counsel's motion to strike Carol Bowie's testimony. United States v. Martinez-Rodriguez, 472 F.3d 1087, 1091 (9th Cir. 2007). Bowie testified that investors care how companies compensate employees and that granting stock options is the equivalent of granting equity in the company. She also testified about materiality, see infra, and about a report finding that Brocade had a "disturbing pattern" of granting stock options to Reyes when the stock price dropped. Reyes strongly objects to Bowie's "arresting" testimony that his compensation (through the grant of stock options, most of which were not exercised) increased 1,896% at the same time that Brocade's stock prices were falling. Reyes claims that this evidence is irrelevant and unfairly prejudicial because it relies on biases and class prejudice. Notably, Reyes does not explain how the introduction of Bowie's testimony constitutes prosecutorial misconduct. Reyes does not demonstrate that such testimony was false, or that the Government sought to draw improper inferences based on its admission. See Reyes, 577 F.3d at 1077. As previously noted, while it would be improper to admit this evidence simply to show Reyes's wealth, the evidence is relevant to Reyes's motives for the backdating scheme, since he had a financial interest in the process of backdating options. See Mitchell, 172 F.3d at 1108-09. The 1,896% compensation increase figure is not so "arresting" as to make it unfairly prejudicial because this figure was tied to potential gain had Reyes exercised all of the stock options. Fed.R.Evid. 403. The record reflects that Reyes did not exercise all of his stock options, and the jury was clearly informed of that fact. Under these circumstances, the district court did not abuse its discretion by permitting Bowie's testimony. D. Reyes also maintains that the district court erred in admitting public statementsin the form of two press releases and a civil pleading (answer)made by his first defense counsel to the effect that Reyes did not engage in backdating options at Brocade (collectively, the Prior Case Evidence). Specifically, Reyes argues that the admission of the Prior Case Evidence was irrelevant to establishing his guilt and was unfairly prejudicial because it was introduced as evidence of his guilt.[3] The district court did not abuse its discretion in admitting the Prior Case Evidence. At his second trial, Reyes's defense strategy was to admit that he backdated stock options, but deny that he had knowledge and responsibility for misreporting the compensation expenses. To show that Reyes understood that he was engaged in illegal conduct, the Government introduced the testimony of an attorney who conducted an internal investigation of Brocade's practices, at the Company's request. The attorney testified 467 that Reyes told him that he never backdated stock options. Defense counsel sought to discredit the attorney by questioning the attorney's memory and bias. To corroborate the attorney's testimony, the Government introduced Reyes's first defense counsel's press releases and his answer in the civil enforcement suit brought by the SEC. For example, the press releases quoted Reyes's first counsel, who claimed that "Mr. Reyes did not backdate options." Reyes's answer to the SEC's civil complaint made similar denials. Reyes objected to these admissions. The statements were relevant because they were inconsistent with Reyes's position at his second trial, to the effect that he engaged in backdating, and were used to corroborate another Government witness's testimony that Reyes told him that he did not backdate. The Prior Case Evidence was also relevant to Reyes's guilty state of mind. See United States v. Perkins, 937 F.2d 1397, 1402 (9th Cir. 1991) (false exculpatory statements can be considered as evidence of consciousness of guilt). E. Reyes also asserts that the prosecution unduly focused on a theme of corporate responsibility whereby Reyes was ultimately responsible for any misconduct because he was CEO of Brocade. In particular, Reyes points to prosecution's references to corporate culture and that Reyes signed the SEC filings. Reyes also contends that the district court erred by not giving proposed defense jury instructions directing the jury not to give any significance to Reyes's position as CEO of the Company, or to the legal concept of respondeat superior liability.[4] We disagree. Reyes did not object at trial to the introduction of evidence related to Reyes's responsibilities as CEO of the Company. Moreover, the district court did not plainly err when it allowed the introduction of evidence that Reyes, in his role as CEO, signed the financial statements and representation letters which formed the basis of the Government's charges that Reyes falsified Company books and records, and lied to Company auditors. See Geston, 299 F.3d at 1134; 15 U.S.C. §§ 78m(b)(2)(A) and 78ff, 17 C.F.R. § 240.13b2-1 (falsifying corporate books and records); 15 U.S.C. § 78ff, 17 C.F.R. § 240.13b2-2 (making false statements to auditors). In further clarification of the purpose of the evidence, the Government argued that as CEO of the Company, Reyes knew about what was occurring at Brocade regarding the granting of stock options, not that he should be held liable simply because he was the CEO. The district court also did not abuse its discretion when it rejected defense counsel's proposed jury instruction that a corporate officer is not criminally responsible for the acts of subordinates. The issue arose after the district court received a question from a juror part way through trial asking the court if Reyes was individually liable, or liable as a CEO. In response, the court told the jury that it would be instructed on the issue at the end of the trial. Reyes's claim that the district court's given instructions did not adequately cover his theory of defense is reviewed de novo. United States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000). The district court has wide discretion in formulating the instructions to the jury, see, e.g., United 468 States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985), and we review its decision for an abuse of discretion. Franklin, 321 F.3d at 1240-41. The court did not commit reversible error by refusing to give a separate instruction where "other instructions, in their entirety, adequately cover that defense theory." See Thomas, 612 F.3d at 1120 (9th Cir. 2010). The jury was properly instructed before closing arguments and the commencement of jury deliberations. The trial court properly instructed the jury as to the required elements of each of the crimes charged. Jurors are presumed to follow the court's instructions. Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). From the instructions given, it was clear that the jury could not find Reyes guilty simply due to his position as CEO of Brocade. Therefore, the district court's refusal to give the requested instruction regarding that aspect of the defense's theory did not constitute reversible error. See, e.g., United States v. Reed, 575 F.3d 900, 925 (9th Cir. 2009) (alteration in original) ("A district court may properly refuse to give a `mere presence' instruction when the government's case rests on `more than just a defendant's presence, and the jury is properly instructed on all elements of the crime....") (quoting United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir. 1992)). Accordingly, we conclude that Reyes has failed to show that the Government made any false or misleading statements based on the evidence introduced, which necessarily means that Reyes failed to show that the Government knowingly made any misrepresentations. See Reyes, 577 F.3d at 1077. As a result, there is no evidence of sufficient facts in this record supporting any allegation of prosecutorial misconduct that would "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citation omitted). II. Sufficiency of the Materiality Evidence A. "[A]ny person who uses or employs a manipulative or deceptive device in connection with the sale of any security commits securities fraud." United States v. Jenkins, 633 F.3d 788, 801-02 (9th Cir. 2011) (citing 15 U.S.C. § 78j(b)), 17 C.F.R. § 240.10b-5(b) (prohibiting "any untrue statement of a material fact"). Materiality is one element of securities fraud. Id. at 802 (citing In re Cutera Secs. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010)) ("Central to a 10b-5 claim is the requirement that a misrepresentation or omission of fact must be material."). For an omission to be material, "there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the `total mix' of information made available." Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (citation and internal quotation marks omitted); United States v. Tarallo, 380 F.3d 1174, 1182 (9th Cir. 2004) ("For securities fraud, a statement is material if there is a substantial likelihood that a reasonable investor would consider it important in making a decision."). "[T]he standard of materiality is judged from the perspective of a `reasonable investor,' and is therefore an objective one." Reyes, 577 F.3d at 1075 (rejecting Reyes's argument that witnesses' testimony failed to establish materiality because they made no personal decision to invest in Brocade's stock). 469 Reyes argues that the prosecution failed to prove that additional disclosures related to the APB 25 non-cash expenses would have been material to investors. In particular, Reyes argues that the testimony of Bowie and Robert McCormick, a lawyer who supervised proxy voting for Fidelity Investments, only related to proxy voting decisions and did not establish that APB 25 expenses could influence a reasonable investor's decision. Reyes also maintains that the two Brocade investors who testified, Kevin Kilgannon and David Ryan, did not establish that they found APB 25 information important.[5] We disagree with Reyes's highly theoretical and distorted reading of the materiality standard. "We have recognized that information regarding a company's financial condition is material to investment." Id. at 1076 (citing SEC v. Murphy, 626 F.2d 633, 653 (9th Cir. 1980) ("Surely the materiality of information relating to financial condition, solvency and profitability is not subject to serious challenge.")); see also Berson v. Applied Signal Tech., Inc., 527 F.3d 982, 985 (9th Cir. 2008) ("[A] statement is misleading if it would give a reasonable investor the impression of a state of affairs that differs in a material way from the one that actually exists." (Internal citations and quotation marks omitted)). Here, there was substantial evidence for the jury to rely on in finding materiality based on the extent to which Brocade's true financial condition was not disclosed to investors. In particular, the Government presented evidence that the backdating scheme affected Brocade's reported earnings. Brocade's net income was overstated by almost $1 billion between 2000 and 2004; it reported profits in 2001 and 2002 when it should have reported losses, and underreported losses by almost $500 million in 2003 and 2004. Government expert Fujuimoto testified that APB 25 calculations affected the reported earnings (unlike FAS 123 disclosures). Further, McCormick provided identical testimony to that which he gave at Reyes's first trial that Fidelity's policy was to vote against company plans that allow in-the-money options because it costs the company more money and can affect shareholder returns. Bowie's testimony was consistent with McCormick's. A jury could reasonably conclude based on this testimony that investors would want to know information that affects investment returns. Further, two actual Brocade investors testified that they cared about accurately stated earnings. Kilgannon testified that, as an investor, whether a company was really suffering a loss but reported profits, would "have been important" to him. He also testified that he sold his remaining Brocade shares after he learned that the company was restating its earnings. Ryan traded on a basis of the stock's price and 470 trading volume. He testified that price follows earnings and that he decided to sell when he heard of Brocade's restated earnings. While the Brocade investors' testimony is not specific to APB 25 non-cash expenses, it is sufficient to help establish materiality in this case because investors care about earnings, which at that time were required to reflect APB 25 non-cash expenses. Taking into account the cumulative testimony of the witnesses regarding the materiality of the Company's misstatement of its earnings, coupled with the information in the Company's financial statements and SEC filings, and viewing the evidence in the light most favorable to the Government, a rational jury could find that Brocade's significantly overstated net income and underreported losses were material to investors. Reyes, 577 F.3d at 1076; Berson, 527 F.3d at 985. Accordingly, we reject Reyes's narrow reading of the materiality standard. B. Reyes also contends the prosecution improperly suggested to the jury that it could find materiality based on proxy-voting decisions, and that the district court erred because it did not give an instruction that would prevent the jury from being mislead. We disagree. Reviewing for plain error, Geston, 299 F.3d at 1134, Reyes does not point to any place in the record where we could find that the prosecutors acted in a "well-calculated" manner to "mislead the jury" as to this issue. Having various unconnected references in the record is not sufficient to show prosecutorial misconduct where the Government did not offer the proxy voting to establish materiality. Rather, the voting preferences testimony largely related to the reasons why the witnesses voted against plans permitting in-the-money options, because they can lead to lesser earnings, about which investors do care. Second, while improper accounting requiring a restatement does not, by itself, establish materiality, it can be used as evidence. See DSAM Global Value Fund v. Altris Software, Inc., 288 F.3d 385, 390 (9th Cir. 2002) ("[T]he mere publication of inaccurate accounting figures, or a failure to follow GAAP, without more, does not establish scienter." (citation omitted)); Gebhardt v. ConAgra Foods, Inc., 335 F.3d 824, 829 (8th Cir. 2003) ("We do not believe that restating earnings makes the original misstatement material per se... [but] those facts are part of the total mix of information available to investors and are deserving of some consideration."). Here, the Government did not argue that Brocade's financial restatement alone, which was required because the Company's accountants found material discrepancies in the financials, rendered Reyes criminally culpable. The district court did not abuse its discretion by not giving Reyes's proposed jury instruction. The jury was properly instructed as to the materiality requirements under Basic, 485 U.S. at 231-32, 108 S.Ct. 978, and is presumed to follow those instructions, Zafiro, 506 U.S. at 540, 113 S.Ct. 933. That is sufficient, particularly where the context for the testimony related to how granting in-the-money option affects earnings. Further, the trial court gave limiting instructions during trial concerning the materiality of accounting restatements, and gave correct materiality instructions at the end of trial. CONCLUSION For the foregoing reasons, we AFFIRM the district court. NOTES [*] The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. [1] In 2005, Financial Accounting Standards (FAS) 123(R) superseded APB 25 and required that companies use FAS 123 expense amounts in their Generally Accepted Accounting Principles (GAAP) statements. FAS 123 required reporting estimating the economic value of stock options granted to employees during the relevant reporting period and the effect such grants would have had on the Company's earnings, determined pursuant to GAAP, if they had been treated as non-cash compensation expenses. [2] The district court also denied defense counsel's proffered limiting jury instructions as "enormously argumentative" and "totally inappropriate." Defense counsel, while objecting to the Government's proposed limiting instructions, and despite the trial court's repeated efforts to solicit input, refused to offer any substantive suggestions that would make the Government's version acceptable. Defense counsel's complete rejection of any limiting instructions except its own does not, per se, make the Government responsible for failing to correct misleading testimony. See Blueford, 312 F.3d at 968. [3] Reyes does not explain how the Government engaged in prosecutorial misconduct by introducing the Prior Case Evidence at trial. He does not demonstrate how the evidence is false or how the Government sought to draw false inferences from the facts, and fails to show that the Government knew or should have known that such inferences were false. See Reyes, 577 F.3d at 1077. [4] Reyes does not specifically explain how the prosecutors allegedly engaged in misconduct as to this issue. [5] Reyes also contends that as a matter of law no jury could find that the omission of APB 25 expenses was matter based on "basic market economics." Reyes's academic theory is that decreased earnings will only lead to lower securities prices if the earnings are cash earnings. GAAP earnings, Reyes maintains, reflect only non-cash accounting and does not affect future cash flows, which "should" not affect stock price. Because APB 25 options expenses are non-cash accounting entries, omitting them "should not affect stock valuations by reasonable investors." Notwithstanding this theoretical analysis of how the market should behave, the Government proffered testimony suggesting that actual investors do care about earnings prices. Where, as here, the earnings were overstated because of improper accounting at the time, such information affects investors decisions to buy or sell. Moreover, the overarching legal conclusion in Reyes is applicable, as the court concluded that the "false records" could affect a reasonable investor because it produced an "incorrect picture" of Brocade's finances. Reyes, 577 F.3d at 1075-76.	{ "pile_set_name": "FreeLaw" }
271 F.2d 39 FEDERAL TRADE COMMISSION, Petitioner,v.WASHINGTON FISH & OYSTER COMPANY, Inc., a corporation, Respondent. No. 16541. United States Court of Appeals Ninth Circuit. Oct. 12, 1959. Alan B. Hobbes, Asst. General Counsel, John W. Carter, Jr., Miles J. Brown, Attorneys, Federal Trade Commission, Washington, D.C., for petitioner. Martin P. Detels, Jr., W. Bryan Lane, W.T. Beeks, Evans, McLaren, Lane, Powell & Beeks, Seattle, Wash., for respondent. Before BONE and HAMLEY, Circuit Judges, and BOWEN, District Judge. HAMLEY, Circuit Judge. 1 The Federal Trade Commission has applied to this court for enforcement of a cease and desist order entered under section 2(c) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.A. 13(c). The cease and desist order, issued on March 25, 1946, directed Washington Fish & Oyster Company, Inc., to cease and desist from 2 '* * * paying or granting, directly or indirectly, to any buyer anything of value as a commission or brokerage, or any compensation, allowance, or discount in lieu thereof, upon purchases made for such buyer's own account.' 3 On June 7, 1957, the Commission undertook a formal investigation to determine whether the cease and desist order was being obeyed. As a result the Commission on February 18, 1959, filed a report in which it was found and concluded that Washington Fish & Oyster had violated the cease and desist order. On July 21, 1959, the Commission filed an application in this court for enforcement of that order. This was done pursuant to section 11 of the Clayton Act, 15 U.S.C.A. 21.1 4 Paragraphs VIII to XII of this application pertain to the formal investigation which was instituted by the Commission on June 7, 1957, to determine whether the company had violated the cease and desist order. Items 6 to 11 of the Commission's designation of record in this enforcement proceeding relate to the orders and reports of the Commission or its examiner or to testimony and exhibits having to do with the investigation begun on June 7, 1957. 5 The company has now moved to strike these paragraphs of the application and items of the designation of record. The company has also moved, in the alternative, that in the event the motions to strike are denied, an order be entered directing the Commission to take additional evidence to be adduced by the company. Motions to Strike 6 The company contends that the Commission was without statutory authority to conduct its formal investigation to determine whether the cease and desist order was being obeyed, and that all proceedings and reports issued thereunder are therefore illegal and void. 7 It is true, as the Commission concedes, that the Clayton Act, as amended, does not specifically direct the Commission to conduct investigations to determine whether cease and desist orders are being violated. The act provides, however, that the Commission may apply to the United States Court of Appeals for enforcement 'if such person fails or neglects to obey' a cease and desist order.2 Congress must therefore have expected the Commission to determine the fact of violation before applying to a United States court of appeals for enforcement. 8 The method or procedure to be followed by the Commission in determining the fact of violation is not spelled out in the statute. Hence, any reasonable and fair method or procedure not forbidden by statute would be appropriate. Under section 6 of the Federal Trade Commission Act, 15 U.S.C.A. 46, the Commission is given broad powers of investigation. Pursuant to this authority, the Commission has promulgated rules under which investigational hearings may be conducted for the purpose of determining whether a respondent is complying with an order of the Commission.3 9 In the formal investigation as to violations of the cease and desist order of March 25, 1946, there has been compliance with all requirements of statute and rule concerning procedure. The company had full and ample opportunity to cross-examine all witnesses and examine all documents, and availed itself of that opportunity. It had full and ample opportunity to contest the issue of violation of the order by introducing evidence, but did not avail itself of that opportunity. There is no contention that the record of that investigation, as designated by the Commission, is incomplete or inaccurate in any respect. 10 We hold that by virtue of the statutes cited the Commission had authority to conduct the questioned formal investigation as to violations of the cease and desist order of March 25, 1946. 11 The company further argues, however, that if the Commission had authority to conduct such an investigation there is nevertheless a total absence of statutory authority for the filing of the report therein, or record thereof, in this enforcement proceeding. 12 The statute authorizing the Commission to institute enforcement proceedings before United States courts of appeals provides that the Commission 'shall file the record in the proceeding, as provided in section 2112 of title 28, United States Code. * * '4 Paragraph (b) of the latter section, 28 U.S.C.A. 2112(b), provides that the record to be filed in the court of appeals in such a proceeding shall consist of the agency order sought to be reviewed or enforced, the findings or report upon which it is based, 'and the pleadings, evidence, and proceedings before the agency. * '5 13 The question presented, therefore, is whether the record in connection with the Commission's investigation of violations of the instant cease and desist order constitutes 'pleadings, evidence, and proceedings before the agency' which may be filed with the court for consideration in the enforcement proceeding pursuant to section 2112(b). 14 As before indicated, the Commission must determine to its own satisfaction that there has been a violation of a cease and desist order before it may apply to a United States court of appeals for enforcement. Where this determination is made as a result of an ex parte informal investigation, there are no 'pleadings, evidence, and proceedings,' within the meaning of the statute. In this event the court, if it affirms the cease and desist order and if the assertion of violation is disputed, must remand the matter to the Commission for formal proceedings on the question of whether the order has been violated. Indeed, this is the usual practice.6 15 As we have held herein, however, the Commission may make this determination as to the fact of violation by means of a formal investigation preceding application to a court for enforcement. Such an investigation pertains to an issue which must be decided before an enforcement order can be effectuated. Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 478, 72 S.Ct. 800, 96 L.Ed. 1081. An issue which must be decided before an enforcement order can be effectuated is appropriate to be considered in deciding whether such an order should be entered by the court. The record of that investigation therefore constitutes 'pleadings, evidence, and proceedings before the agency,' within the meaning of section 2112(b). 16 It follows that the entire record of that investigation may be filed for our consideration in this enforcement proceeding.7 Motion to Adduce Additional Evidence 17 The company has also moved, in the alternative, that in the event the motions to strike are denied, an order be entered directing the Commission to take additional testimony to be adduced by the company. 18 This court may not order the Commission to adduce additional evidence in an enforcement proceeding unless it is shown to the satisfaction of the court that such additional evidence is material. Third paragraph of section 11 of the Clayton Act, as amended, 15 U.S.C.A. 21. 19 The additional testimony which the company desires to adduce would tend to establish what the company regards as a defense to a charge of violation of section 2(c) of the Clayton Act, 15 U.S.C.A. 13(c). Specifically, the additional evidence, it is asserted, would show that any difference between the prices charged by the company with respect to sales to direct purchasers and sales to customers purchasing through brokers was the result of the economic necessity to the company of meeting the competitive prices of other packers and brokers. 20 The company relies upon Henry Broch & Co. v. Federal Trade Commission, 7 Cir., 261 F.2d 725, as establishing that the necessity of meeting competition affords a defense to a charge of violation of section 2(c) of the Clayton Act.8 If such a defense is available, the evidence tending to establish it is material, and the company should be permitted to adduce it. 21 The cease and desist order involved in Broch was not directed against a seller or buyer but against brokers representing a seller. The Commission found that the brokers had violated section 2(c) by granting and allowing a portion of their normal and customary brokerage fee to a particular buyer in connection with that buyer's purchase of food products from the seller. The court set aside this order, holding a seller's broker is not covered by section 2(c). Since our case involves a seller rather than a seller's broker, we need not decide whether we would agree with this ruling in Broch.9 22 In its decision in Broch, however, the court went on to make some general observations concerning the desirability of permitting sellers to meet competition by reducing items in the cost of distribution, including brokerage commissions.10 It is this language which Washington Fish & Oyster relies upon as establishing that the necessity of meeting competition affords a defense to a charge under section 2(c). 23 These observations by the court in Broch indicate that it regarded that case as one in which a seller reduced the fee to be paid to his broker for bona fide brokerage services in order to quote a competitive over-all price to a buyer. Whether this was really the case, and if so whether the seller could so proceed without violating section 2(c), we need not decide.11 Our case involves no such circumstance, the purported brokerage fee here having been paid to the buyer. 24 Subsections (c), (d), and (e) of section 2 of the Clayton Act, as amended, unqualifiedly make unlawful certain business practices other than price discriminations. The only escape congress has provided for violations under these subsections is that which is sanctioned in subsection (b) of that section. Federal Trade Commission v. Simplicity Pattern Co., Inc., 360 U.S. 55, 79 S.Ct. 1005, 3 L.Ed.2d 1079. 25 Subsection (b) provides that nothing contained in section 2 and other specified sections 'shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.' 26 Washington Fish & Oyster was not charged with any violation connected with the furnishing of services or facilities (subsection (d) and (e) of section 2). Nor was it charged with quoting and collecting a discriminatory price contrary to subsection (a). What it was charged with was the paying of a brokerage fee to a buyer, no brokerage services being rendered. 27 The defense based on competition, set out in subsection (b), is inapplicable to section 2(c) violation, since such violations are not primarily concerned with prices, services, or facilities. The fact that the granting of a purported brokerage fee to a buyer may in a particular case result in discriminatory prices is immaterial. The gist of the violation under section 2(c) is not that discriminatory prices have been charged, but that the parties have engaged in a practice designed to deceive others as to the price charged and paid, whether or not discriminatory. 28 Since the necessities of competition do not constitute an available defense under section 2(c), the evidence concerning competition which the company seeks to adduce is not material. 29 The motions to strike and the motion, in the alternative, for leave to adduce additional evidence are denied. 1 As amended August 28, 1958, Pub.L. 85-791, 4, 85th Cong., 2d Sess., 72 Stat. 943. This provision of the Clayton Act was again amended in 1959, Pub.L. 86-107, 86th Cong., 1st Sess., 73 Stat. 243, U.S.Code Congressional and Administrative News, 86th Cong., 1st Sess., 1959, pages 1950-1954. The 1959 enactment, however, has no application to any proceeding initiated before July 23, 1959-- the date of enactment of the 1959 act. Section 2 of Pub.L. 86-107. All references in this opinion to the Clayton Act refer to the form of the act prior to the 1959 amendment 2 Third paragraph of section 11, 15 U.S.C.A. 21 3 Procedures and Rules of Practice for the Federal Trade Commission, 16 C.F.R., subpart D, 1.34, 15 U.S.C.A. following section 45 4 First sentence of third paragraph of section 11 of Clayton Act, as amended on August 28 1958, 15 U.S.C.A. 21 5 Section 2112 was enacted in 1958 for the purpose of permitting administrative appeals to be heard on abbreviated records where feasible. Senate Report 2129, 85th Cong., 2d Sess., U.S.Code Congressional and Administrative News, 1958, page 3996 6 Federal Trade Commission v. Whitney & Co., 9 Cir., 192 F.2d 746; Federal Trade Commission v. Herzog, 2 Cir., 150 F.2d 450; Federal Trade Commission v. Baltimore Paint & Color Works, Inc., 4 Cir., 41 F.2d 474 7 See the last sentence of 28 U.S.C.A. 2112(b). The same result was reached in Federal Trade Commission v. Standard Brands, Inc., 2 Cir., 189 F.2d 510, but on somewhat different reasoning. The court there said (189 F.2d at page 512): 'True, it has been customary for a court, upon affirming such an order, to appoint a master to make an inquiry as to violation, and, usually, to name the Commission as master. But there is no reason why, now that we have affirmed the order, we may not, in the exercise of our discretion, treat the Commission's findings as if the Commission had been appointed our master, since, in the Commission hearings, respondent was accorded all its procedural privileges. (If, in future cases, a respondent, believing the Commission's order invalid, wishes to avoid what it may consider the needless expense of such a hearing if the order is invalid, such a respondent can promptly test the order's validity by a petition to review the order.)' 8 Broch was decided after the instant Commission hearings. The company points to this circumstance as explaining why the defense now asserted was not advanced during the Commission proceedings. Prior to Broch, the company concedes, 'the necessity of meeting competition had not been held to constitute a defense to a charge of violation of Section 2(c) of the Clayton Act * *.' 9 Certiorari was granted in Broch on June 15, 1959. Federal Trade Commission v. Henry Broch & Co., 360 U.S. 908, 79 S.Ct. 1297, 3 L.Ed.2d 1259 10 In this connection the court said (261 F.2d 729): 'Obviously an important element in the cost of food distribution is the commission paid by sellers to their brokers. If a seller is to be forbidden to meet competition by reducing an item in its cost of distribution, then to that extent his costs are frozen without regard for the welfare of the public which must ultimately defray the resultant costs of distribution. Trade restraints in the distribution of groceries surely do not occupy a preferred antitrust position, as distinguished from comparable situations. Standard Oil Co. v. Federal Trade Commission, 1951, 340 U.S. 231, 248-250, 71 S.Ct. 240, 95 L.Ed. 239; 7 Cir., 1956, 233 F.2d 649, affirmed 1958, 355 U.S. 396, 78 S.Ct. 2 L.Ed.2d 359.' 11 Nor need we concern ourselves with whether such an observation in the Broch decision is to be regarded as dictum in view of that court's holding that section 2(c) does not apply to a seller's broker	{ "pile_set_name": "FreeLaw" }
92 Mich. App. 495 (1979) 285 N.W.2d 344 SCHWARTZ v. CITY OF FLINT Docket No. 78-3141. Michigan Court of Appeals. Decided September 20, 1979. Robert E. Childs, for plaintiff. Patrick H. Hynes, for defendant City of Flint. Charles A. Forrest, Jr., for intervening-defendants. Before: ALLEN, P.J., and T.M. BURNS and D.E. HOLBROOK,[] JJ. D.E. HOLBROOK, J. This appeal of right involves the validity of a zoning ordinance of the defendant City of Flint. Plaintiffs brought this action in the circuit court for Genesee County, claiming that the ordinance is unreasonable as applied to plaintiffs' subject land. The trial court, after a full trial, upheld the ordinance. Plaintiffs raise three issues on appeal, two of which (not pertaining to the substance on the merits) are not sustained by the record and need not be discussed. However, as to the third issue, we rule that the plaintiffs have sustained their burden of proof by proving that the zoning ordinance in question is unreasonable as applied to the plaintiffs' land. A history of this case is helpful in explaining our ruling herein. The plaintiffs purchased the subject 28 acres of land located in the City of Flint in January, 1966, for $60,000. At that time, the property was zoned A-2, single-family homes with a minimum of 5,000 square feet lot size. Plaintiff Joseph Schwartz, a longtime licensed residential builder in Michigan, constructed many homes throughout the City of Flint during the period from 1954 to 1971. Included were 29 homes 499 on Woodslea, Pine Tree and Green Hill Roads, which comprise the subdivision to the North of the subject 28 acres. These include the homes of Sherwin Palmer and Leo Seide, two of the intervening defendants (who testified in the case) and plaintiffs' own home at 2643 Pine Tree Drive. The last two homes which plaintiff built in this subdivision were for Dr. Bowles and for Samuel and Florence Gershenson. While plaintiff made a fair profit on all the homes he built in Flint, he lost money on the Bowles home and on the Gershenson home. He estimated that he lost approximately $9,500 on these two homes. Without a proper market for single-family homes if built on the subject property, plaintiffs requested a rezoning from A-2 to C-1 in January 1967. The application was tabled. Four years later on June 8, 1971, plaintiffs' application was removed from the table, and the request to recommend changing the zoning was denied. Then followed plaintiffs' filing of the instant complaint in October, 1971. Thereafter, a settlement conference was held, and a consent judgment was entered pursuant thereto on July 19, 1973. Upon motion of defendant city, the judgment was set aside and the individual defendants allowed to intervene. The Flint City Commission retained a New York organization known as Raymond, Parish and Pine, Inc., urban development consultants of Tarrytown, New York, assisted by Eugene Albert, real estate analyst from Croton-on-Hudson, New York. Their report was filed in final form with the city nearly three years after the instant action had been filed. The city then, on its own initiative, rezoned the property from A-2 to A-1 on November 25, 1974. On March 4, 1975, the actual trial was commenced. Continuances were had, and the trial was 500 completed on August 3, 1976. The trial took up not more than nine days of time, some of which were half days. On November 22, 1976, transcripts were filed and final briefs were submitted by May 3, 1977. On June 7, 1978, an opinion was issued by the trial court, followed by judgment in favor of defendants entered June 14, 1978. A motion for new trial was filed June 28, 1978, and was denied on July 10, 1978. This appeal was then timely taken by plaintiffs as of right. In the most recent case of Ed Zaagman, Inc v Kentwood, 406 Mich 137, 153-154; 277 NW2d 475 (1979), our Supreme Court, with Mr. Justice WILLIAMS speaking for the Court, stated: "The appropriate standard for determining the constitutional validity of municipal zoning determinations was succinctly set forth in Kirk [v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976)] as follows: "`The principles and tests to use to determine whether the present zoning of plaintiffs' property is valid was detailed in Kropf [v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974)]. "`The important principles require that for an ordinance to be successfully challenged plaintiffs prove: "`"[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * or "`"[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question." 391 Mich 139, 159. "`The four rules for applying these principles were also outlined in Kropf. They are: "`1. "[T]he ordinance comes to us clothed with every presumption of validity". 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957). "`2. "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and 501 unreasonable restriction upon the owner's use of his property * . It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness." 391 Mich 139, 162, quoting Brae Burn, Inc. "`3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted." 391 Mich 139, 162-163. "`4. "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases." 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).' 398 Mich 429, 439-440." The premise upon which this opinion is written is that, if the ordinance is enforced with the consequent restrictions on plaintiffs' property, the same precludes its use for any purpose to which it is reasonably adapted. We believe that this is true under the facts in this case and has been consistently true from the date of the complaint in 1971 and continuing throughout the proceedings and to the filing of the opinion of the trial court on June 7, 1978. In other words, because of its location and its A-1 zoning, there is no demand for such lots in the city of Flint, and this raw land cannot be developed as required by the ordinance. Of course, nothing is impossible, and there were witnesses who stated that in their opinion the land could be developed under the ordinance. However, there was no offer of evidence that any responsible entity or person would be willing to do so. A principal witness who said the land could be developed for A-1 homes was the intervenor Sherwin Palmer. Mr. Palmer was president of a building 502 supply company furnishing materials to 400 builders in the Genesee County area. Mr. Palmer stated that (as of the time of his testimony in July, 1976) he did not know of any homes being built on A-1 zoned property in the city of Flint. At the same hearing, Palmer testified as follows: "Q [by Mr. Forrest, attorney for the intervenors] Mr. Palmer, in the course of your work as a building in the building business, are you familiar with high quality homes being built outside of the city limits? "A Yes, sir. "Q Now, when I speak of high quality homes, I'm speaking of homes in excess of fifty thousand dollars. "A Yes, sir. "Q Do you happen to know how many such homes are being built in the county at the present time? "A I couldn't give you an exact number, but there are, there are quite a few and the trend is upward. "Q How is the building business right now in terms of high quality homes? "MR CHILDS: Where? "MR FORREST: In the county. "A The high quality home trend is more stronger than in the, let's say, moderate to low priced homes. "Q (By Mr. Forrest, continuing): And how "A And has been all the way through the down period. "Q But how has it been in terms of the more expensive homes at the present time? "A It's strong." Mr. Seide, the other intervenor who testified, did not testify as to the feasibility of developing the subject land for A-1 homes. He did testify that he had listed his home for sale and it was for sale at that time. Plaintiffs should not be required to pay taxes on this property, as they have for the past more than 503 eight years, without any opportunity to use or develop the same. In our opinion the ordinance, in effect, is taking from plaintiffs the use of their property without just compensation, contrary to the Federal and State Constitutions. It may be that the intervenors would like to see the subject property developed like their property or see it vacant, similar to a park, private or public. It is interesting to note that only two intervenors testified, and one of those testifying said his property was for sale. The intervenors live in a A-2 zoned area which is about a mile from east to west and four blocks from north to south. To the east of this area is commercially zoned property; to the north is property zoned for commercial and industrial and public utility uses; to the west, property zoned for two and multi-family residential, and general and highway commercial service; to the south is the subject property of this suit and also a public park to the southwest. The property surrounding the subject 28 acres of plaintiffs is zoned as follows: to the north the area just described; to the south residential; to the southwest semi-public recreational; to the east commercial; and to the southeast commercial. Plaintiffs maintain that their property could be developed and used if zoned C-1 or a modification of C-1 permitting garden-type apartments and multiple homes. It is also noted there is another possible zoning classification, that of B, which permits a mix of single homes and two-family and multi-family homes. Further that there is a demand and a need for such apartments and homes in the city of Flint. The City of Flint no doubt acted sincerely in zoning the property for single homes. However, it could not see into the future and know of the 504 developing and unforeseeable events, viz.: the lack of a market demand because of consumer choice to seek single-family homes outside of the City of Flint, in the towns and townships in the environs, and the resulting economic facts precluding development of the land for more expensive homes for which the land had been zoned. The city relied upon the report of the planning firm of Raymond, Parish and Pine from Tarrytown, New York, entitled Dort-Lippincott Neighborhood. This encompasses the area surrounding the subject property. John Saccardi, an employee of that firm, and co-author of the report, was called as a witness by the plaintiffs, for cross examination under the statute. Parts of his testimony pertinent to this opinion are as follows: "Q (By Mr. Childs, continuing): Was your original commission, if you know, to study the Dort-Lippincott corridor development, excluding the Schwartz parcel and the Patsy parcel and so forth? Just along Dort and Lippincott? "A No. Our original commission, as I understand it, was to study the neighborhood, with particular emphasis to the vacant parcels included in the neighborhood. "Q How many acres of the purported twenty-eight acres of the Schwartz parcel are included in the flood plain? "A It the figures that we used are twenty-eight point seven acres which we calculated in our office and eleven point one are in the flood plain. "Q So that would leave approximately seventeen point six acres. "A Correct. "Q Now, of the seventeen point six acres, that result in your being able to build homes with basements on each one of the seventeen point six acres? "A I would believe so, yes. * * * 505 "Q All right. Well, now, do apartments furnish more children? "A Than? "Q In school population than do single-family homes? "A No, less. "Q Less. "A Yes. "Q Did you examine the assessed valuation which would be necessary to raise the taxes to support one school child, no matter what type of unit he lived in? "A We had a meeting with the business administrator from the Flint School system and we talked about the figures, and our general conclusion was that there would not be an overwhelming impact from any of the alternatives we were suggesting, so consequently we stopped there. "Q What do you mean by overwhelming? "A In other words, if you look at the chart on page 40, you see that most of the estimated school children populations are low enough that when you relate them to the capacity in the school systems there will not be an over-crowding and consequently not a burden. If the schools were, were very much over-crowded, then we would have gone further with the school impact. "Q Did you reach any conclusion as to over-crowding of the elementary, junior high and high schools? "A Yes. "Q And what conclusion was that? "A There's excess space in the elementary and the junior high schools, and that the trends in enrollment are such that in the next several years there will be additional space available in the high school. * * "Q (By Mr. Childs, continuing): Now on page 11 of your Dort-Lippincott Report, would you point out the vacant land going back to there? You have talked about deficient housing and you have talked about the vacancy of the City land. And you have talked about the Schwartz parcel. Did you consider the Master Plan of the City? "A Yes. Part of our task was to look at the Master 506 Plan and look at the zoning ordinance and to examine the policies reflected by these two documents in relation to what we were suggesting for the area. "Q At the time you made the study how was the Schwartz parcel zoned? "A A-2. "Q Since the study came out, why, the Exhibit Number 9, I believe it is, indicates that it has been rezoned to A-1. As a planner, do you agree? "A Oh yes. * * "Q Do you know how many single-family homes have been built within the City of Flint, territorial limits, within the last five years? "A No, sir, I do not. * * * "Q Incidentally, how much time did you have to make the study? "A Our tasks specifically? "Q Started when? "A I believe it was July. "Q Of which year? "A And we were finished by Labor Day. We had three months to make the study. It had extended beyond that. We prepared a draft report on or about Labor Day. The City Planning Commission then spent sometime reviewing it, and then in October we printed this finalized version and had a subsequent meeting with the planning board after that. So in total I would say five months. Three months of actual data gathering, analysis and planning. "Q Well, now, do you know the number of single-family units was six hundred and eighty-one built within the territorial limits of the City of Flint in the year 1971? "A I'm sorry, sir, I didn't, I didn't understand that. "Q Did you know that the that there were six hundred and eighty-one single-family units built within the City limits of Flint in 1971? "A No, I did not. "Q Did you know that in 1972 there were seventy-nine 507 single-family units built within the territorial limits of the City of Flint? "A No, sir, I didn't know that. "Q Did you know that through May of 1973 there were fourteen single-family units built within the City of Flint territorial limits? "A No, sir, I didn't know that, either. If, if I may "Q Now "A Okay. "Q just answer my question, please. "A No, I didn't know. "Q In order to know how to plan is it not necessary to know what is the demand? "A Yes. That's why we had an economic consultant working with us. "Q From Tarrytown, New York, or "A No, from Croton-on-Hudson. "Q Croton-on-the-Hudson. But none from Flint, Michigan, or from the immediate area. "A No, the City hired consultants from out-of-state. They hired us from New York. "Q Will you turn to page 15 of your report, please? Now, before you answer that question, is there any reason why you as a land planner know why single-family units, new construction, has come to a practical halt? "A In Flint? Or in the country? "Q I would say you were retained to do the study in Flint. What about Flint? "A Well, you know, the economic conditions, the cost of labor, the cost of money, mortgage money, and the market would be the reasons for a slow-down in the construction of single-family homes at the present time. "Q Would you say a slow-down from six hundred and eighty-one to the first including the first five months of 1973 was quite a slow-down? "A Yes. * * "Q All right. Suppose it were open and no carports, no garages, nothing. Any impact between the multiples and the single-family homes? 508 "A Again it would, it would depend, you know. "Q Assume it's just lawn. Landscaping. "A If I could envision the fronts of the garden apartments, which are very attractive, with a lawn, and then across the ways some single-family houses, I could imagine it being a compatible relationship. "Q A compatible relationship. "A Yes. * * "Q Now, in part of the study, in order to determine if A-1 is reasonable zoning for these acres, besides the streets and the cost of the bare land and the improvements, did you in turn determine what is the cost per structure on each one? "A No. "Q You never did that. "A No, sir. "Q In order to do land planning don't you have to determine supply and demand? "A No, not to do land planning; to do building you would have to do that. But not to do land planning. "Q But not to do land planning. "A No, sir. * * * "Q Now, I point out to you in particular on page 43 of your report. The last paragraph. Do you not say in there that `Assuming careful review of development plans by the Planning Commission and the City Engineer, no inordinate burden on existing City services should be expected to result from any of the options examined'? "A That's right, sir. "Q And what now were your options so that we know? "A They were single-family options and multiple-family options and combinations thereof. "Q And combinations thereof. "A Yes. "Q But throughout this entire study you did not 509 make a study of the cost of building a single-family home as compared to a multi-family or a town house. "A Correct. "Q In reaching your conclusion, am I correct in that? "A Yes, sir, you are correct. "Q Don't you think that's really an integral part of land planning? "A No, sir. "Q You don't. "A No, I don't think so. * * "Q All right. Would you mind reading this? "A `Unquestionably, however, the demand for apartment-type housing is much greater', referring to greater than single-family. `The City of Flint is not producing a sufficient supply of small unit apartments or condominiums to meet the needs generated by new family formations and by the increasing number of older persons with no children living at home. In the aggregate, these two age groups represent about sixty percent of the City's current populations.' Should I go on? "Q All right. Now, of these sixty percent of the City's current population, is it your opinion that sixty percent of the City of Flint would be able to purchase the A-1 type housing that you recommended here? "A Well, part of them probably would, although "Q What part? "A The older persons with children not living at home. Although the desirability of those age groups to purchase single-family homes on relatively large lots is a very small one. The, the market for town houses, condominiums and apartments strikes hardest and is at this age group, these age groups; it's the young people forming families and the older people whose children have left. So, yeah, "Q So would it not be wise for the people to preserve these people within the City limits instead of having to drive them outside of the City of Flint? "A Of course." 510 Mr. Gerald E. Childers, Zoning Administrator for the City of Flint, was called as a witness by the plaintiffs for cross examination under the statute. Parts of his testimony pertinent to this opinion follow: "Q All right. Now, following that and the adoption of the zoning ordinance, there was a so-called Dort-Lippincott Study made, am I correct in that? "A Yes. "Q You know when they started making this study? "A In '74. "Q In 1974. "A Yes. "Q Was that after judgment or before judgment was entered in this particular suit originally? "A After. "Q Afterwards. "A Yes. "Q And in doing so * * who made the study? "A Firm of Parish, Raymond and Pine. "Q Where are they located? "A Tarrytown, New York. * * * "Q I see. But, is it not also true that you originally recommended to the Planning Commission a B community development? Do you have your notes here with you on this case? "A Yes, I do. "Q Would you mind looking at them? Suppose you look at June 8th, 1971. Is that it? "A Yes "Q Would you mind reading the second full paragraph? "A The second full paragraph whereabouts? "Q Of the Planning Commission minutes of June 8, 1971, page 4294. "A The second paragraph of that page? 511 "Q Yes. "A `C-1 residential zoning on the property in question would provide no guarantee that development would take place as proposed, and, in addition, existing developments should not be completely subjected to the whims of the market place at any given point in time, although it would seem that a man having a combination of apartments and single-family residences would provide a reasonable use of the developer for the developer and offer more stability to existing developments.' "Q All right. Would you also read the next paragraph? "A `It would be recommended that a plan and preliminary plat be developed that would leave the southerly portion of the property in single-family classification, and by the use of B residential zoning and community development project approval on the remainder, some assurance could be given on the density of apartment construction, period. In addition, there should be some provision for street connections between this parcel and the vacant acreage to the east.' "Q Was that your recommendation? "A Yes. * * "Q Well, wasn't your recommendation for B community development? "A The recommendation that Mr. Schwartz should consider that course of action. "Q Yes. And why did you make that recommendation? "A Because I was concerned that actually that the problems of single-family development was a problem, and I think there was a but to offer some assurance to the neighborhood that something other than C-1 zoning was necessary. * * * "Q Well, now, we have two people to whom we try to be reasonable; one is reasonable to the people who live on Woodslea, right? "A Correct. 512 "Q We also have to be reasonable with Mr. Schwartz, is that correct? "A That's correct. "Q. Now, is it reasonable to require him to do something which will result in practical insolvency? "A That's a judgment that has to be made. No, if that was the case, no, it is not reasonable. "Q All right. "A That was the whole issue that's involved, I think. "Q Therefore, if he loses money on the deal, if he can't do it as recommended A-1, if there is no market for A-1, you as a City Planner would deem it to be unreasonable zoning. "A That's right. "Q Therefore, is A-1 zoning unreasonable? "A Based on our consultant's recommendation, no, it is not. "Q What is your recommendation? "A I have to go on the basis I don't intend to be a market analyst or an expert in the financial feasibility of these particular projects. And to me that was the major purpose of this study. Designwise, we can sit down and design anything. But the aspects I think of zoning serves two purposes. One is protecting the existing development, stabilizing the values in the area, and providing for growth-development, and sometimes those two purposes conflict, which I think is the case here. And you have to resolve it. "Q All right. Now, where else in the City of Flint is there A-1 zoning? "A As stated during earlier testimony, this area, the area south of Miller Road, and there was one other parcel that wasn't mentioned, C.S. Mott's estate happens to be zoned A-1, too, but "Q How large is that? "A Twenty acres, maybe, twenty-five. "Q Very expensive home? "A Yes. * * "Q Now, you have the Dort-Lippincott Study and 513 page showing the major streets, correct? Is it page 25 you said? Do you have it there? "A Yes. "Q All right. Atherton is a main road, or what we call a primary thoroughfare, correct? "A On the land use "Q Yes. "A or the major street plan, which is true, it is a major thoroughfare. "Q All right. What about Terrace Drive? "A Terrace Drive is shown as a collector street. "Q What is meant by collector street? "A Well, I suppose you could get many definitions, but it's primarily a street that's collecting traffic from a specific area and distributing it to your major street system. "Q All right. In collecting it, how many vehicles are shown? "A Approximately seven hundred. "Q And, how many could this collector street handle per hour? "A Offhand I don't have that information. "Q All right. The twenty are most of these streets twenty-six foot roadways? "A Yes. "Q What is the volume shown from the Country Club or to the Country Club Apartments along Woodslea? "A The only traffic data count on Woodslea is six hundred and thirty-four. "Q Where do you see that, please? I see. "A Right here. "Q Six hundred and thirty-four, that's up there. All right, what does this twenty and twenty-six indicate? "A Those are pavement widths. "Q Pavements widths, all right. It shows six hundred and ninety-seven going south on what street is that? "A Terrace Drive. "Q Terrace Drive. All right. And the width of that is twenty-six feet. 514 Now, from the Country Club Apartments, apparently six hundred and ninety-seven around and let's even add well, we can't, we can't even say they are going over beyond Country Club beyond the golf club or to the golf club or something like that. Around that twenty foot, where it says twenty in a circle, is that where the golf club is? "A The golf club. Well, there's a number of twenties there in circles. The that's going in the direction of the golf club from the intersection of Terrace Drive and Woodslea. "Q All right. Now, the total traffic at the peak apparently of the circle is nineteen hundred and eighteen, correct? "A Yeah, that's the average daily volume. "Q All right. Now, if there were two hundred and fifty-eight apartments built, would it be unreasonable to even double that nineteen eighteen figure? In your opinion as a City Planner? "A General figures, dwelling units, based this is based on the Michigan State Highway Department origin-destination surveys; will approximate seven traffic trips generated per dwelling unit per day. That will vary, of course, up and down from there based on type of dwelling unit, the family income and so on. * * * "Q But your background was in zoning because you were the Assistant City Planner and the City Planner and now the Zoning Administrator, is that correct? "A That's correct. "Q And how many years would that encompass? "A Total? Twenty-five years. "Q Twenty-five years. Well, following that was Mr. Schwartz' land, the plaintiff's land, zoning changed? After that? "A Subsequent to this. "Q Beg your pardon? "A You mean subsequent to this. "Q Yes, subsequent. "A Yes. Yes, it has been. "Q What has it been changed to? 515 "A Changed from A-2 residential to A-1 residential. "Q Now, there has been heretofor offered in evidence an Exhibit Number 13 entitled the Dort-Lippincott Neighborhood Plan, which has been accepted in evidence. Are you familiar with this plan? "A Yes. "Q Now, in referring to this particular plan, and I show you the exhibit, please thank you there were two options available in that plan, were there not? "A I believe so. "Q Was not one, the first conceptual approach, as they say, in that particular plan based upon * * exactly what you said we have stipulated to in open court? "A To, to a certain extent. I'd say the multiple-family option that was shown in the study "Q That was one option which was reasonable in their opinion. "A showed a potential multiple-family development with a space buffer or single-family home buffer in the area. "Q Yes. All right. And then the other plan was for the other option, as they put it, optual optional conception was to rezone it to A-1. Is that correct? "A That's correct. "Q Has it been so rezoned to A-1? "A It has been. * * * "Q Did you not originally suggest the B plan at the first zoning hearing which was submitted to the City Council? "A I did suggest that as an alternative approach to asking for C-1. * * * "Q (By Mr. Childs, continuing): Did you receive a letter like this Proposed Exhibit 16 from George M. Raymond who drafted one of the drafters of the Dort-Lippincott Plan? "A Yeah, this is addressed to me, yes. "A Yes. Were you subpoenaed to bring in all of your 516 original letters, correspondence, file, concerning that particular area? "A I have all of the minutes and the plans. I don't know whether I have all the specific correspondence. "Q Well, the subpoena specifically covered all correspondence, originals. I show Plaintiff's Proposed Exhibit 16 to opposing counsel, Mr. Hynes, Mr. Forrest. "MR. FORREST: I would, I would object, your Honor. I believe that this letter is too much in the nature of an ultimate conclusion. I think we have to have more of the, of the rationale behind this conclusion before this letter can be introduced into evidence. "THE COURT: Mr. Hynes? "MR. HYNES: I'll join in Mr. Forrest's objection, your Honor. "THE COURT: All right, let me see the letter. "MR. CHILDS: The letter is being presented to the Court. "THE COURT: Did you, did you receive this letter, Mr. Childers? "THE WITNESS: I'm sure I did. "THE COURT: Did you solicit this letter? "THE WITNESS: It would assume appear it was in response to an inquiry. I do not recall whether it was a verbal inquiry or written inquiry. "THE COURT: By you? "THE WITNESS: Right. "THE COURT: All right. I'll admit it into evidence. "MR. CHILDS: Thank you very much, your Honor. "Q (By Mr. Childs, continuing): What does that have to do with the traffic pattern specifically? "A The letter was, to some degree, the response of the cost of providing additional access to the area, as to what it would do to the land costs for Mr. Schwartz as it relates to the number of units that might be developed on the property. "Q Yes, thank you. Does it not say in its last paragraph, `An increase in number of units of that order would, however, have relatively little impact, inasmuch as all of the traffic 517 generated would be channeled directly onto Dort Highway without affecting existing residential neighborhood'? "A That's what it says. And, of course, I think that reflects, of course, a situation that does not exist and was one of the proposals of Raymond, Parish, Pine Study that there be road access developed out to Dort Highway. "Q I see. "MR. FORREST: May I see that letter again? "Q (By Mr. Childs, continuing): Now, actually, Mr. Childers * * * What's the date of that letter? "MR. FORREST: August 28, 1974. "MR. CHILDS: All right. "Q (By Mr. Childs, continuing): In Plaintiff's Exhibit 8, which has been admitted into evidence, you made a so-called Planner's Comments of June 8th, 1971, which I presume would be yours. In the third paragraph there, what does it say about traffic? "A I don't see where it says anything about traffic in the third paragraph at all. "Q The part that's underlined. "A It says, `It would seem that a plan having a combination of apartments and single-family residences would provide a reasonable use for the developer and offer more stability to existing developments.' * * * "Q All right. Now, in the Schwartz parcel, if traffic would be channeled through out lot A, and I asked you about the location of stop signs before, what if there was a no right turn sign here? How would the traffic be channeled? "A If there was no other means of access, you had a no right turn movement there, they would either have to go straight down is that I can't Greenhill, is that Greenhill? "Q Greenhill Lane. "A And most likely then would cut over to Terrace and go down to Mohawk. 518 "Q In other words, they would make a left turn on Woodslea. "A Either that or go down Greenhill Lane. "Q All right. How many homes are there in Woodslea Drive on this side towards his apartment buildings? On Woodslea Drive. "A Well, other than the two that are shown there right at the corner, Woodslea and Greenhill, I don't think there are any homes. Single-family homes. "Q In other words, by where it says 762 and where it says 33. "A Right. "Q Would not be affected, is that correct? And this building over here, which I'll just put a nine in, that is one of his existing apartments, is it not? "A Right. "Q All right. What is the traffic pattern for his existing apartments? "A You come out to Terrace Drive and, of course, can go out Woodslea or they can go south on Terrace Drive out in that direction. "Q Could the Terrace Drive is vacant on both sides, is it not? "A That's right. "Q All right. Now, if they continued along Terrace Drive and went down there to Mohawk, they would come out on to Dort Highway, would they not? "A That's right. "Q Would that affect any of the traffic increase on Woodslea? Assuming there was no right turn from the out-lot A. "A What traffic are you talking about, traffic in existing apartments or potential traffic from the parcel under litigation? "Q From the potential apartments. "A Okay. Because you just switched your talk over to what that traffic over in the apartments was. "Q I'm sorry "A Other than the four houses at the corner, the houses down Greenhill Lane, if people abided by a no 519 right turn movement, it would only affect then that group of houses on Greenhill and the ones at the corner. And then, of course, once you got down to Mohawk, some of the traffic then would relate to the Mohawk traffic, or the Mohawk homes. "Q Now, on the Dort-Lippincott Study, did not they say that they could provide for commercial or multi-family development? "A I'm not sure I understood what your question was. "Q I'm referring to page 36, paragraph which I have outlined in pencil, as being one of the options. The town house units. Would you read that, please? "A `The town house units that would result would represent an increase of only twenty-eight units over the sixteen lots now platted and the twenty-eight additional lots that could be accommodated by subdividing the remaining areas along Terrace Drive. In terms of number of bedrooms, however, the two schemes would be equal. The traffic from the town houses could be accommodated by the existing road system or through Route B, if provided.' * * * "Q Does he own a narrow strip of land to the south of the twenty-eight acres in question running from his property to Woodslea Road? "A Yes. "Q That's designated on most maps in the subdivision plat as out-lot A, is that correct? "A That's correct. "Q Would that permit vehicle access and ingress and egress through this subdivision? And by this subdivision, I mean the subdivision to the south. "A I would assume that that's what would be used for access, right. Basically it is the only access point there that touches a public road at the present time. "Q Well, the plat was platted with this out-lot A permitting egress to this area to the north, wasn't it? "A That was the intent. "Q Who platted this subdivision? "A Mr. Schwartz. "Q If and when this area is developed, Mr. Childers, 520 is there any way that you're aware of that the City could prohibit ingress and egress through this out-lot? "A Oh, I don't think so. Ownership is with Mr. Schwartz, as is the major parcel that we're talking about. "Q As a planner and having knowledge of traffic patterns and traffic requirements, is it feasible or reasonable to prohibit traffic from turning right at the south end of out-lot A? Is there any justification for that? "A Well, you can do a number of things I think in traffic engineering controls to try to eliminate problems that might occur. I don't you don't too often see it at a residence intersection such as that, but I think it would be possible. But the difficulty of enforcing it would be another matter. * * "Q All right. If a resident owner, land owner, in this twenty-eight acres parcel, the Schwartz property in question, wanted to head toward downtown, which way would be normally which route would he normally take? "A With the present degree of access, I would think he would go to the right and follow Circle Drive around to I draw a blank on the street name, but, anyway, approaching Saginaw Street. At least that's the way I would go if I were there heading for downtown. * * * "Q All right. If you take even twelve hours a day as opposed to twenty-four correct me if I'm wrong, my math is pretty bad how many cars would that permit in a twelve-hour day? Twelve times six hundred, right? "A That's right. "Q And that would be * * * seventy-two hundred. Correct? "A That's right. "Q Being seventy-two hundred, is there even any estimate calling it at twelve instead of a twenty-four hour count, is there any estimate of traffic count of any of the options set forth in the Dort-Lippincott Neighborhood 521 Report which even approaches seventy-two hundred per day? "A No. "Q Using a twelve hundred day twelve hour day. "A No, there aren't any. "Q Even with Mr. Schwartz' proposal. "A That's right. "Q Now, actually, the report, which was made while this lawsuit was in process and setting forth these estimated figures, gave various options, did it not? "A Yes. "Q Now, would we say that some are more reasonable than others? "A Reasonable in what sense? "Q From a planning sense. Are you all right? "A Yeah. "Q You want to step down a minute? "A No, I just moved in the wrong way. Certain planning considerations I guess the proposals for developing for single-family make more sense if you were looking from the stability of an area. "Q You say they make more sense. "A Right. "Q They would be more reasonable than the town houses, is that it? "A Yes. "Q Was the town houses one of the options? "A Town houses, apartments, I think were options. "Q In fact, that was the first one that was discussed, was it not? "A Right. "Q And then Raymond-Parish came up and said we prefer the A-1. "A Right. * * "Q Actually today as you sit here, in all honesty, would you recommend now in your expert opinion that Mr. Schwartz' parcel be A-1? "A I think it is desireable. 522 "Q It is desireable, but is it reasonable? "A Over a long period of time, it's possible it is. "Q All right. How many years time? "A Right now I couldn't answer that. "Q You have no crystal ball. "A No. "Q Now, is it not true that there is a difference between attempting to get something done and yet the economic demand and supply requiring something be done? "A At any given point in time that is a problem. "Q Do you know how long Mr. Schwartz and Mrs. Schwartz have owned this parcel and paid taxes on it? "A I would pretty close to ten years I would think. "Q Have they had any economic return from it? "A Not that I'm aware of. "Q Would you think that the people, the lone houses east of out-lot A and the houses west of out-lot A, which is really an extension of Greenhill Lane, get benefit from this? Vacant land? "A To a certain extent, right." Mr. Clare Walters Farrow, a real estate appraiser of Flint, Michigan testified in part as follows: "Q Will you please define [w]hat you mean by real estate appraiser? "A We determine valuations of properties, new and used, for mortgage purposes, also for sale purposes; base valuations on market conditions as they exist at the time. "Q How long had you been in the real estate work? "A Twenty years. "Q During those twenty years who have been your respective clients? "A I have made appraisals for Genesee Bank, Citizens Bank, Detroit and Northern Savings and Loan, several mortgage companies out of Detroit, also for the Federal Government. 523 "Q Have you built and sold any homes in Flint and vicinity? "A Yes. In nineteen * * * I believe it was 1968 we built several homes over on the east side. "Q You were in the military for a while? "A Three years. "Q Now, what has been your appraisal experiences, particularly in reference to F.H.A., for example? "A Well, I worked for the Federal Government for eight years. I was the subdivision appraiser and multi-family appraiser which consisted of appraising nursing homes, apartment units, and also determining feasibility for subdivisions that might be put on for F.H.A. insurance on the financing. "Q Did this include town house projects? "A Yes. "Q Now, within what radius of Flint does this include? "A Well, the Flint service office had the it would be north of Wayne County and Oakland County, all the way to the Alpena and eastern half of the State. "Q And it was your responsibility to do the actual appraisals, is that correct? "A Yes. "Q Are you presently a free lance appraiser? "A Yes. Fee appraiser. "Q If I may use that expression. And in doing so have you appeared in court as an appraiser in various cases? "A Yes. "Q What type of cases, please? "A Oh, basically the cases are condemnation cases where there is a discrepancy between the two, two parties. In some cases the State is taking the land, in other cases the City was taking the sites. "Q Have you appraised multi-family homes? "A Yes. "Q Apartments? "A Yes. "Q Townhouses? "A Yes. "Q Single-family homes? 524 "A Yes. "Q And you say your experience has covered about how many appraisals in round numbers? "A Oh, round numbers, seventeen, eighteen thousand. "Q Could you tell us, for example, besides enumerating some of the immediate clients, could you enumerate some of the out-state affiliations who have retained you as an appraiser? "A I have basically it's for the mortgage companies in Detroit; City Mortgage Company, Diamond Mortgage Company, Tri-City; several of the banks, First J.L. Hudson's Credit Union, various clients. "Q Have you appraised for the Argonaut Realty? "A Yes, General Motors Argonaut Realty. "Q That is a subsidiary of General Motors, correct? "A Yes. "Q Have you appraised for the Chase Manhattan Bank in New York? "A Yes. "Q Are you qualified to appraise in the Flint area and Detroit area for the what's familiarly know as Fanny Mae? "A Yes. "Q Are you a member of any professional societies? "A I'm a senior member of the Society of Residential Appraisers. "Q And what does that mean? "A Well, it's a national organization which you earn certain designations. I happen to have the senior residential designation. "Q Which means what? "A That actually I'm qualified to go in practically any state in the union and go into the appraisal business. "Q I see. Do you think that you are familiar with the entire Flint area? "A Yes. "Q Are you familiar with and have you actually viewed the instant site? "A Yes. "Q Have you physically visited the premises? "A Yes. 525 "Q As you viewed the land as shown on this diagram that has been put up here, and, of course, which involves this instant real estate here, "A Yes. "Q the plus or minus twenty-eight acres do you know the present zoning of that land? "A The present zoning is A-1. "Q Which means what? "A That the sites for single-family residents must be ten thousand square feet or more. "Q Does it give the size of the building? "A No. "Q All right. What is when this law suit was started originally how was it zoned. "A A-2. "Q Which means what? "A Five thousand square feet or more. * * * "Q Thank you. All right, now, with that before you as platted or suggested plat, how many single-family homes could be built according to Defendant's Exhibit A? "A That shows thirty-five sites. "Q And are the lots all of the same size? "A No. "Q Is there a flood plain shown? "A Yes. "Q What is the total number of acreage? "A According to my notes, the complete site was twenty-eight plus acres. * * * "Q (By Mr. Childs, continuing): Do you know the availability of vacant land within the city limits of Flint for A-1 or A-2 zoning? "A Availability of vacant land you say? Or "Q Yes, for new construction. "A It's the A-1 classification of zoning in the City of Flint is practically nil. There's only, only two locations other than the subject property that are zoned A-1. "Q Where are they? 526 "A The one parcel is south of Miller Road, which is basically estate-type properties, and the other parcel that is zoned A-1 is around the extremities of the Flint Golf Club, which is in the Country Club Manor. Other than that, to my knowledge, there's no A-1 zoning other than a couple of sites that are being rezoned at this time. * * "Q Could you give us the number of homes in A-2 or A-1 classification that were sold within, say, the last five or six years? If you know. "A Existing homes? "Q Yes. "A I used the clarify this. I used the multiple listing service for my data and it's comprised of sixty offices which are not all the offices, so therefore, the totals that I would give would not necessarily be a true count. But I feel that it is a good rule and indication of the total market as far as percentages. In the in 1974, I, I have broken down in categories, in the twenty-five to thirty thousand, thirty to forty, forty to fifty and fifty thousand in the City and in the suburbs, and also for the first three months of 1975. I do have that data. "Q All right. Could you give that to us, please? "A In 1974 there were ninety-three homes sold in the twenty-five to thirty thousand dollar category in the City of Flint. In the thirty to forty thousand dollar category there were forty. And in the forty to fifty thousand there were sixteen. And in the over fifty thousand dollar category, seven. Now, that again is this multiple listing service which is comprised of sixty offices. In the first three months of 1975, in the twenty-five to thirty thousand dollar category, there were fourteen homes sold. In the thirty to forty thousand category, fourteen. In the forty to fifty thousand dollar category, none. And in the over fifty thousand dollar category, one. * * * "Q Do you know of other lots in Flint, where they're 527 located, of a similar type to those of the Country Club area? "A There are several lots available in the City of Flint. Eldorado Vista would be considered similar price range of some of of homes are somewhat similar. There are thirty lots available in this particular subdivision. It is zoned A-2. In the past two years they have sold seven sites. Eight sites. There are lots available in the Evergreen Subdivisions. The one subdivision between Lapeer Road and Lippincott Boulevard has approximately thirty now this is all from a physical inspection and the figures could be off one or two lots, depending on what there are thirty lots available in that area. Two of the lots have basements in that appear to be standing idle. Then in the Evergreen Subdivisions by Court Street, which are were developed by Whittier Building Company, there are six, six or seven lots available in there. These are also A-2. There are several lots in the north-eastern section of Flint. I suppose that Rollingwood would be the familiar name. This probably would not be in the same price range category. There are lots available, there's vacant land available for development there. There's also vacant parcels basically in the northern section of the City where the vacant land is that's developable. Carpenter Road area there's several parcels that could be developed, and in this Rollingwood area there are several parcels that could be developed. Some of them on the edge of the river. There are Mr. Gerholz has some sites that he can could develop. He has enough ground to develop about forty sites, but he has refrained from doing so because the market for this type * * "MR. CHILDS: May the, may the witness continue? "THE COURT: Yes, he may continue. "THE WITNESS: He has sites for he has developed sites for * * * thirty homes, single-family type, in the Westgate Subdivisions. He has sites for twenty-five sites in the Sunset Village area. I use Sunset Village because everybody's 528 familiar with that particular area. The subdivision would be Glendale. These sites are actually developed. These could be used his plans are to use them for single-family homes. He has available land for forty more single-family homes in the Westgate area, and these he has refrained from developing because the market has diminished. There are Mr. Schwartz also has eighteen lots available on Terrace which has been mentioned previously. "Q (By Mr. Childs, continuing): Now wait a minute, on Terrace. That is not including the twenty-eight acres with the Flint "A No, these are developed lots that could be used. There are other scattered lots, but they would not qualify as far as for this particular type of building. "Q Now, in making an appraisal with your experience with the F.H.A., would it be reasonable for Mr. & Mrs. Schwartz to develop the instant real estate? "A In my opinion, it would not be feasible at this time. "Q Why not? "A Lack of market demand as opposed to the costs involved. "Q Now, when you say lack of market demand, that is based upon your own experience, as well as your researching into the matter? "A Yes. "Q Where is the market demand? "A The market demand is strictly in the suburban areas. "Q For single-family homes. "A Yes. "Q All right. Now, if this were platted, whether A-2 or A-1, would there be a market demand? "A In my opinion, no. "Q Could 235 homes be built there? "A If you disregarded cost of development, yes, of course, 235 homes could be built anywhere. "Q Are 235's built on ten thousand square foot lots? "A No. 529 "Q What do you mean precisely by 235's as I have used the term? "A Well, I think a lot of people have a misinterpretation of what 235 is. Actually 235 is not a type of home, it is a type of financing. The house itself is actually built under the regular sections of Federal Housing Administration, which is a just a regular house; it's built with the same inspections and everything else. The 235 aspect of it is strictly a vehicle of financing. "Q Is it for a particular type of individual or family? "A Basically it's a subsidized deal. The interest rate is subsidized and also payments according to the abilities of the people that are put in the properties. "Q To pay, is that correct? "A Their ability to pay. * * * "THE WITNESS: I, I think that I did. I think he was asking me whether I would recommend to a lending institution as to whether or not this was a "MR. CHILDS: No, to an F.H.A. "THE COURT: That's just what I was afraid of. "MR. CHILDS: To F.H.A. "THE COURT: To F.H.A. "THE WITNESS: All right. They are an insuring institution. As to whether or not this particular proposal would be feasible or not. "Q (By Mr. Childs, continuing): And your answer? "A No. "Q Why not? "A Not feasible at this time due to the costs and the market demand. And the availability of other sites as to how they would if there were other sites available and the costs were up about the same amount as what this would be, then I would say it is feasible, but there are other sites that are available for far less and therefore it would not be a feasible proposition. "Q Knowing the feasibility, the market and the demand, I reiterate: Should this be either A-2 or A-1? "A There would be less cost per site involved under the A-2 zoning as opposed to the A-1 zoning. Therefore 530 "Q But if it was A-2 zoning, could he sell them? "A It would be doubtful that they could even be sold at a reasonable profit under the A-2 zoning. "Q Now I'm talking about new site construction. "A Yes. "Q I'm not talking about existing homes. "A No. "Q Do you know of any existing homes that are for sale on the issue on the in the immediate area, namely on Woodslea, Woodslea Drive Avenue? "A Well, there have been several for sale, yes. "Q Do you know how long? "A Some of them have been on the market for two years or so. "Q Have they sold? "A Not to my knowledge as of two or three days ago. "Q If these were very low-priced homes would they be salable? "A Oh, a low-priced home is salable practically everywhere in the City of Flint. You would be disregarding costs in order to achieve that, though. "Q Would that be comparable to the homes that are on Woodslea? "A No. * * "Q (By Mr. Childs, continuing): If the A-1 or A-2 zoning is permitted by this Court and Mr. Schwartz would go ahead and build homes there, are they salable, would they be salable? * * * "THE WITNESS: To answer the question as a pointblank answer I would have to say yes. However, Mr. Schwartz would certainly not make any money. Anything is salable at a price. Now, if you're going to disregard costs and disregard profit and everything else, yes, it could be sold. But to be sold and come up with a reasonable profit, no. The market wouldn't stand it. "Q (By Mr. Childs, continuing): As an F.H.A. appraiser, as an appraiser for conventional mortgages, as a builder yourself, as a land developer yourself, would 531 this land and this suit has been pending, I believe, since 1971 be marketable without a loss? "A Under A-1 and A-2? "Q Yes. "A At this time there would be a loss. There would be a substantial loss. "Q There would be a substantial loss. "A Yes." Mr. Aaron J. Blumberg, real estate broker, marketing analyst, manager of real estate, with a commendable academic record including a bachelors degree and a Ph.D. from the University of Pennsylvania, testified he had been acquainted with the Flint area for the past 15 years. He did many studies in the Flint area, including the economic study on the basis of which the J.L. Hudson Company decided to go into the shopping center which is now known as the Genesee Valley Mall. He has worked for many banks and other lending institutions in the area as an appraiser. He testified in part as follows: "Q (By Mr. Childs, continuing): Now, the next thing is, have you had an opportunity to view the territory of the City of Flint, in particular, concerning the approximately twenty-eight acres? "A Yes, I have. "Q How many times would you say that you have? "A I'd say five or six. "Q And in doing so would you tell us how you went about it. "A I drove and walked through that particular parcel I didn't drive through the parcel, I walked through that parcel. I drove and walked through the neighborhood immediately adjoining it. * * "Q All right. The next question is, what did you find 532 is going on in the market place insofar as single-family homes are concerned in the City of Flint? "A The question that I addressed myself to was, are single-family homes on ten thousand foot lots, or on the Schwartz parcel, indeed marketable in today's market or any foreseeable market that I could see. That was the question that I tackled. "Q And that was actually you're talking about buy-sell now. "A Buy-sell, right. Real honest to God live transactions. "Q All right. And in doing so what did you do? "A Well I thought I might get some help from this Raymond, Parish, Pine report * * "Q (By Mr. Childs, continuing): When did you make the study? "A I made this study last month and I studied a period of time commencing at the beginning of January of 1970 and going through 1974. I took a five-year period of time for my analysis. "Q All right. Now, in the five-year period of time of analysis, what did you find as to the buy-sell of single-family homes in the City of Flint? And from what sources did you derive it? "A I wanted to find out how many houses in the City of Flint, from January of 1970 through December, 1974, were actually sold in a in the high income brackets, and my definition of high income brackets was approximately fifty thousand dollars or more. And the reason I took fifty thousand dollars or more is because on A-1 zoned land in Flint you can't deliver a house for anything under a house and lot for anything under fifty thousand dollars. So I wanted to see how many real actual transactions had occurred in the City of Flint over that five-year period in that price bracket, and I found a total of "Q Now where did you go? "A Oh, yes. I went to the, to the building permit office. "Q All right. 533 "A And on the building permit. And I went through all the building permits for single-family homes that were issued during that period of time. "Q In the City of Flint? "A In the City of Flint. "Q All right. And what did you find in the City of Flint and give us the specific year. "A Well, what I tabulated was the value of the house on the building permit. Now the value of the house on the building permit is not the market not the sale price of house and lot. On the building permit they just value a major portion of the house. But not the lot. Now, it is common practice in, in the business that I'm in to multiply that by two and that gives you a fair approximation of what the house and lot would sell for on the market to a customer. So what I really tabulated was their estimated building cost of homes, * * of twenty-five thousand dollars or more. "Q As was this figure twenty-five thousand dollars or more shown on the building permit? "A Yes, it was. Yes. "Q All right. * * * "Q (By Mr. Childs, continuing): Now, excuse me just a minute. When you say your count, did the building permits which you examined what location did you go to, I want to know that specifically. "A Oh, I went to the building to the office of the building inspector in the City of Flint. "Q I see. And exactly what data did you examine, the application or the building permit itself? "A No, the building permit. "Q The building permit. And, now, when you talk about these various figures, showing value as usually shown on a building permit in order to determine the cost as you well know, with what figure did you start on the building permits? "A The I started with I made a tabulation of the number between, between fifteen thousand and nineteen nine, between twenty thousand and one dollar 534 short of twenty-five thousand, and twenty-five thousand or more. "Q All right. Did you in these, in all of these categories, or did you confine it to one category? "A The category that I was primarily concerned with was the, was the higher category, twenty-five thousand or more, because that's the only one which relates to the Schwartz parcel. But I wanted to fill in my background so that I knew where I have gone. I wanted to look a little bit under, you see. But I confined my analysis just to the kind of house which could be built on this particular parcel of land. "Q All right. In other words, the building permit, if it says twenty-five thousand dollars or more on it, that's what you're talking about. "A That's correct. "Q And this is within the territorial limits of the City of Flint. "A That's correct. "Q All right. Now will you give us the specific year. Did you divide them up into years? "A Yes, yes, I divided by years and I added them together. I thought that piece of paper was there. Is your query do you want me to read you by years the total number? "Q What you found. "A Yes. "Q This exactly what you yourself found now. "A Yes. I found one in 1970; five in 1971 "Q Now take it easy. One because I want to write this down, too. One in 1970. "A five in 1971; six in 1972; nine in 1973, and seven in 1974. Those five figures add up to a total of twenty-eight. "Q In other words, twenty-eight homes built within the total City of Flint with building permits having been issued from 1970 on in excess of twenty-five thousand dollars. "A That's correct. "Q All right. Now, will you explain why you adopted 535 the figure of twenty-five thousand dollars as the minimum. "A The A-1 zoning, according to the planner, and I take him as an expert planner, would take an average house of about two thousand square feet. And I the expert planner and the appraisers tell me that the average cost per square foot is about twenty-five dollars a square foot. Multiply two thousand square feet by twenty-five dollars and I get fifty thousand dollars for the house. There's got to be some value to the land. What that is I'm not prepared to testify to, but it must be in excess of fifty. So therefore the house and the lot have got to be delivered for something in excess of fifty thousand dollars. And that's why I took that figure. "Q All right. Out of the entire City of Flint then there were twenty-eight these are new homes. "A Yes. "Q Did you have an opportunity to examine the building permits for any type of single-family town houses or apartments? "A No, I did not examine that "Q Did you have an opportunity to visit the surrounding areas outside of Flint? "A Yes, I did. "Q And what did you find? "A Well, when I looked at this small volume of activity now I have been in and around Flint for a long time and I know that there are more houses being built and sold than twenty-eight in this area. So I went to Grand Blanc and Grand Blanc Township to see what was doing there. And I made a similar analysis in Grand Blanc and Grand Blanc Township, because I wanted to find out where the market really was for these high priced houses or large single-family lots. "Q And the first one was where? "A Grand Blanc and Grand Blanc Township. "Q All right. What did you find in Grand Blanc? "A In, in Grand Blanc, during the same period of time, that is, January, 1970, through December, 1974, I found a hundred and nineteen houses in that category. "Q As compared to the 536 "A Twenty-eight. "Q twenty-eight in Flint. "A In Flint, correct. "Q That was for 1971. "A That's correct. "Q All right. What did you find in Grand Blanc for 1972? "A In Grand Blanc in seventy "Q Two. "A In 1972? "Q Yes. "A Oh, seventeen no, wait, I beg your pardon. Wrong column. Thirty-seven in 1972 in Grand Blanc. "Q All right. In 1973? "A Ten. Ten. "Q. Ten. "A Ten. "Q In Grand Blanc. And in 1974? "A Nineteen. "Q Nineteen? "A Nineteen, yes. "Q That makes a total of how many for that period? "A A hundred and nineteen "Q As compared to twenty-eight in Flint. "A That's correct. "Q Territorial limits. "A Right. "Q All right. Now, what was the other area that you examined? "A Grand Blanc Township. "Q Grand Blanc Township? "A Township, yes. "Q All right. And what did you find there? "A I found during that five-year period a total of five hundred and nine homes in that area. "Q New homes? "A In that price range, at fifty thousand or more. "Q These are new homes? 537 "A These are new homes. Yes. * * * "Q starting with the first year. "A Yes. "Q Where was the market. In the second where was the market and in the third year where was the market for single-family homes. "A Well, insofar as a price houses in that category are concerned, increasingly the market is in the suburbs. "Q And not "A And not in the city. Increasingly you find more and more sales in, in the suburbs and a smaller and smaller number of sales in the city. "Q Now, in assuming a builder came to you and wanted to build single-family homes and you have made your market analysis for these five years, take any take the first year right through the fifth year, what would be your conclusion? "A I would suggest that if he wants to be in business he goes where the action is, and the action is not in the City of Flint; the action is in Grand Blanc, in Grand Blanc Township and in Flushing primarily for higher priced houses. * * * "Q Now, in your analysis of the building permits for single-family homes within the City of Flint, if a builder came to you and asked if he should build A-1 hoursing on the Schwartz parcel, what is your conclusion, from financial return? * * * "THE WITNESS: My answer is that it would be very highly speculative and I would hesitate to recommend that anybody get involved in a subdivision of that type on that piece of land. * * * "Q (By Mr. Childs, continuing): The most important thing I would say is this: From the viewpoint of a market analyst and having being a licensed real estate broker, would you give an opinion to Mr. Schwartz 538 that he should build A-1 or even A-2 homes on the approximately twenty-eight acres that's in litigation? "A No, I do not think those houses are marketable in the Flint area market. There's no wall around the City of Flint which stops competition from the suburbs from coming into the City of Flint. It does. You just can't draw a wall around a city and say that it doesn't compete with anything else. Surely it does, your Honor. And this land does compete with other projects of like type and of like price, other places nearby. And I don't see how you can analyze the market for this piece of land by building a Chinese wall around the City of Flint. * * "Q In fact, as a result thereof, forgetting about the value of land, forgetting about land planning and so forth, would it be possible to build low income housing, for example? "A Oh, absolutely. "Q If Mr. Schwartz were willing to take the loss. "A Yes. Yes, he could put public housing on there so long as he's got a ten thousand square foot minimum lot. Subsidized housing under one of the federal government programs. Surely. * * * "Q (By Mr. Childs, continuing): Now, will you turn to the page which shows the street map of the area involved. Which had the figures on showing traffic flow. "A I believe it is page 25. "Q 25? Now, in looking at that particular page there and examining the streets, the widths, does it embrace the area which is the subject matter of this litigation? "A It does. "Q All right. As a result of the mathematics and your conversations with the Traffic Engineer's employees, or the City's employees, can these streets handle traffic as projected? "A Easily. * * * "Q (By Mr. Childs, continuing): Now, my question again is this to refresh your memory: Is are these 539 streets qualified in capacity to handle Mr. Schwartz' projected garden-type development on the plus or minus twenty-eight acres? "THE COURT: What streets? "A Yes, they are. "THE COURT: Let's get it down so we're tied down to what streets you're talking about, Mr. Childs. "MR. CHILDS: I'm talking about the streets I have just finished; Terrace Drive, Cherokee, Manitou, Eldon Baker Drive. "THE WITNESS: Yes, they, they certainly are. Seems to me they were designed to carry heavy traffic out of that lot out of that parcel. That's why they're so wide." The evidence shows that the school system and the street and road system are adequate to accommodate the development of the plaintiffs' land under A-1, A-2, B or C classification. These plans were considered in the Dort-Lippincott area report. Their preference was for A-1 zoning; however, it was also favorably mentioned that a multi-family development, with a space buffer of single-family homes, was another option. We are convinced that it has been shown under all the evidence, including that which has been restated herein, that if the ordinance is enforced the consequent restrictions on plaintiffs' property preclude its use for any purpose to which it is reasonably adapted. We review on appeal the findings of a court of equity de novo, with due deference being given to the findings of the trial court, Barnett v International Tennis Corp, 80 Mich App 396; 263 NW2d 908 (1978). This Court is required to sustain the findings of the court below unless it becomes convinced, upon review of the evidence, that had it heard the evidence in the first instance it would have been compelled to rule contrary to the ruling 540 actually made by the trial court. Salvador v Connor, 87 Mich App 664; 276 NW2d 458 (1978), lv den 406 Mich 966 (1979). We are now convinced, upon review of the evidence, that had we heard the evidence in the first instance we would have been compelled to rule contrary to the ruling actually made by the trial court. Therefore, we are constrained to reverse, enjoin defendant from enforcing the unconstitutional classification, and remand the matter to the appropriate municipal zoning authority with instructions to present for the chancellor's consideration, within 60 days of this Court's or the appropriate reviewing court's order of unconstitutionality, an adopted amendatory ordinance comporting with the dictates of equity as well as the requirements of constitutional reasonableness as applied to the aggrieved landowner's parcel. Specifically, upon the expiration of or within this 60-day period, the chancellor shall enter one of the following orders: (i) If, after remand to the city council, plaintiffs and defendant city find the city's amendatory ordinance mutually acceptable, the chancellor shall order the implementation of such "midsatisfactory" amendatory ordinance. (ii) If, after remand to the city council, defendant city submits an amendatory ordinance unacceptable to plaintiffs but embodying Justice BLACK'S "midsatisfactory use"[1] as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of such "midsatisfactory" amendatory ordinance. (iii) If, after remand to the city council, defendant 541 city submits an amendatory ordinance unacceptable to plaintiffs and plaintiffs submit a proposed use embodying Justice BLACK'S "midsatisfactory use" as determined by the chancellor through a balancing of equitable considerations, the chancellor shall order the implementation of plaintiffs' proposed "midsatisfactory use". (iv) If, after remand to the city council, neither plaintiffs nor defendant city can agree upon the other's amendatory ordinance or proposed use and the chancellor determines that neither party's proposal embodies Justice BLACK'S "midsatisfactory use", the chancellor shall order the implementation of a "midsatisfactory use" after both plaintiffs and defendant city, as well as other affected parties, have had the benefit of a hearing and the submission of proofs to determine the most equitable or "midsatisfactory use" to be made of plaintiffs' parcel. (v) If, after remand to the city council, defendant city does not submit an adopted amendatory ordinance to the chancellor, the chancellor is to conduct a hearing, supplemented by the submission of proofs by all affected parties, to determine and implement the most equitable or "midsatisfactory use" to be made of plaintiffs' parcel. No costs. A public question being involved. T.M. BURNS, J., concurred. ALLEN, P.J. (dissenting). While I respect, and in fact admire, the thoroughness in which the majority have reviewed this cause de novo, I am compelled to dissent. Reviewing the testimony with the same thoroughness, I cannot conclude that the A-1 and/or A-2 zoning classification, when applied to plaintiffs' 28-acre parcel, was unreasonable. The gravamen of the majority's conclusion that 542 the zoning is unreasonable is that under such zoning the plaintiffs are unable to sell their lots at a profit. The trial court heard the testimony and did not agree. As was stated in Ed Zaagman Inc v Kentwood, 406 Mich 137, 153-154; 277 NW2d 475, 477 (1979), the ordinance comes clothed with every presumption of validity and it is up to the party contesting the ordinance to affirmatively prove its unreasonableness. Where the testimony on the question of the ordinance's unreasonableness is contested the court "is inclined to give considerable weight to the findings of the trial judge". The majority opinion, in effect, reverses the rule and is disinclined to give weight to the trial court's findings. Based on my review of the record, I cannot conclude that the trial court erred. The lengthy references to the record cited by my brethren are equally offset by contrary testimony from defendants' witnesses. For example, Mr. Palmer, president of a building supply company, testified as follows: "Q (By Mr. Forrest, continuing): Mr. Palmer, do you sell materials to builders? "A Yes, Sir. "Q What percentage of your build of your business is directed towards selling to builders? "A About forty percent. "Q And how many builders do you deal with? "A Total builders, about four hundred. "Q Four hundred. Do you have any familiarity with the size and nature of the houses that these builders produce? "A Yes, sir. "Q And, are you familiar with those that build high quality homes and those that build the cheaper homes? "A I am familiar with both. 543 "Q And, are you familiar with the extent to which both groups build? "A Yes, sir. "Q Are you familiar with whether or not these parties are building within the City of Flint or within the out-county area? "A Yes, sir." * * "Q (By Mr. Forrest, continuing): Do you have any idea, based upon your dealings with these builders, as to why high quality homes are not being built at present? "A There is practically no high quality land available within the City limits of Flint. That is for sale. "Q Are you familiar in the course of your business with the extent to which lots for high quality homes are available? "A I'm familiar with the, the extent of areas, neighborhoods, and in a higher range of, of building and the more costly homes, there is very little land available for sale where a more expensive house can be built today. "Q And would you have any knowledge as to where this area where these areas are? "A What little there is left in Flint would be, of course, in the Miller Road area, the Country Club area that we're now talking about, and there is some land available in the west side of Flint. But very spotty. "Q Is there at present an area the size of the Schwartz parcel available for development in this direction? "A Residential development, no, sir. "Q Based upon your experience in this industry, what would be your opinion as to the salability of lots on the Schwartz parcel for these purposes if it were made available? "A I believe they would be good. "MR. CHILDS: I object, your Honor. He has no qualifications, background, basis as to the market value of lots in an A-1 or figures to site. Nothing. "MR. FORREST: Well let me ask "THE COURT: Well 544 "MR. CHILDS: That's beyond the canons of his experience. "THE COURT: No, I am going to let him testify. Finally, I got somebody who knows what's going on today. You know, we're talking about Mr. Schwartz, Mr. Childs. He hasn't even built a house or been in the building business. We have another man that you put on the stand here this morning that knows about Clio. He's been in some area. But nobody has even been on the stand yet that until we got to Mr. Palmer that knows what's going on, and these are questions that this Court wants to know. I want to know what land is available. I understand from him for the first time that you're telling me that this is there's no other land other than of this comparable size, Mr. Palmer. "THE WITNESS: Your Honor, this is the last parcel of this size that is fit for residential construction within the city limits of Flint that quality homes could be built on. The last one, sir. "Q (By Mr. Forrest, continuing): Mr. Palmer, are you familiar with the lot size requirements in A-1? Generally speaking? "A Well, there's A, A and A-1. One is ten thousand square feet and one is five thousand square feet, but I "Q Okay. A-1 is ten thousand, A-2 is five thousand. If this area were to be available for ten thousand square foot lots, what would be your opinion as to the salability of these ten thousand square foot lots? "MR. CHILDS: Continuing objection, your Honor. "THE COURT: All right. "A I believe that they would be good. There is a, a need for this type of property within the City. The City is requiring people to work for the City to move back into the City. There is a market for people that work for the school system, for the police department, to move back into the City. And a market for executive-type homes within the city limits of Flint. And they are fastly disappearing." I further disagree with the majority on grounds that insufficient weight is given to the report of 545 the New York consulting firm which the city retained to study the area and advise on the proper zoning. That study recommended the zoning which the city council then adopted (A-1 residential with 10,000 square foot minimum) but which plaintiffs claim is unreasonable. In other words, the record shows the council did not act precipitously or unreasonably, but only after it had obtained expert advice. I further disagree with the majority on grounds that de novo review discloses excellent reasons for not accepting plaintiffs' proposed B zoning, which would permit a mixture of residential uses including garden apartments and townhouses. The increased traffic likely from plaintiffs' proposed development would place a severe strain on the road system of the immediate area. This included the streets in defendants-intervenors' purely residential neighborhood. This area was developed without sidewalks, and hence pedestrians including school children would be endangered by the increased traffic flow. Also, the development suggested by plaintiffs would not be in conformity with the existing, adjacent subdivision of defendants-intervenors, and consequently their property would be adversely affected. In sum, there are good reasons for the existing A-1 zoning classification, and the ordinance was certainly not arbitrary or capricious. The public is protected and the adjacent residents are protected by the zoning scheme. The independent study made by the New York firm reinforces this conclusion. Plaintiffs' arguments about the profitability of an A-1 development at best raise a close question. In light of the contrary testimony, the presumptions favoring a zoning ordinance, and the considerable weight we give to the trial court's findings, I cannot say that the ordinance as it now stands is not valid. I would affirm. NOTES [*] Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] See Dequindre Development Co v Charter Twp of Warren, 359 Mich 634; 103 NW2d 600 (1960) (separate opinion of Justice BLACK).	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION NOV 21 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, ) No. 15-56259 ) Plaintiff-Appellee, ) D.C. No. 2:15-cv-02173-TJH ) v. ) MEMORANDUM* ) ALAN GREGORY FLESHER, ) AKA Greg Myers, ) ) Defendant-Appellant, ) ) Appeal from the United States District Court for the Central District of California Terry J. Hatter, Senior District Judge, Presiding Submitted November 7, 2016** Pasadena, California Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges. Alan Gregory Flesher appeals the district court’s denial of his motion to vacate his sentence. See 28 U.S.C. § 2255(a). We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). Flesher was convicted and sentenced for mail fraud1 following his guilty plea. After we affirmed his conviction,2 he filed his motion to vacate based upon his claim that counsel who represented him at the time of his plea and sentencing was ineffective.3 The district court denied his motion, and this appeal followed. Flesher contends that the district court erred because he only intended to admit the falsity of any mailing that actually contained false revenue statements, and mailings described in counts of the indictment did not include those statements. Moreover, he argues that all of the mailings were sent after the scheme had come to fruition. He asserts that the district court erred because counsel was deficient when he advised Flesher to plead guilty in those circumstances, and that he was prejudiced by that deficiency. We disagree. We proceed with some care and deference when assessing counsel’s performance,4 and that is particularly true when a defendant seeks to set aside a 1 See 18 U.S.C. § 1341. 2 United States v. Flesher (Flesher I), 588 F. App’x 652, 652 (9th Cir. 2014). 3 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Hill v. Lockhart, 474 U.S. 52, 57–60, 106 S. Ct. 366, 369–71, 88 L. Ed. 2d 203 (1985); Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). 4 See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065–66. 2 guilty plea after sentencing.5 Here the record demonstrates that Flesher was well aware of the fact that the counts did not necessarily contain revenue statements as such—that was shown on the face of the indictment, in specific disclosures at the plea hearing, and in the presentence report. See Flesher I, 588 F. App’x at 653. Moreover, it was most likely that the mailings in question were part of the scheme that Flesher was admittedly part of,6 and it was reasonable to choose to avoid the vicissitudes of a jury trial on that issue along with the others, in favor of a tactic of admitting guilt and seeking mitigation at sentencing.7 In short, Flesher did not show that counsel was deficient, and if there was some deficiency, Flesher did not show that he suffered prejudice therefrom. See Lafler v. Cooper, __U.S.__,__, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398 (2012); Hill, 474 U.S. at 58–60, 106 S. Ct. at 370–71. 5 See Premo v. Moore, 562 U.S. 115, 125, 131 S. Ct. 733, 741–42, 178 L. Ed. 2d 649 (2011); Hill, 474 U.S. at 58–59, 106 S. Ct. at 370–71; see also Blackledge v. Allison, 431 U.S. 63, 71–72, 97 S. Ct. 1621, 1628, 52 L. Ed. 2d 136 (1977); cf. United States v. King, 257 F.3d 1013, 1024 (9th Cir. 2001); United States v. Nagra, 147 F.3d 875, 880 (9th Cir. 1998). 6 See United States v. Tanke, 743 F.3d 1296, 1301–03 (9th Cir. 2014); United States v. Korab, 893 F.2d 212, 214 n.3 (9th Cir. 1989). 7 See Babbitt, 151 F.3d at 1173–74; see also Cullen v. Pinholster, 563 U.S. 170, 195–96, 131 S. Ct. 1388, 1406–07, 179 L. Ed. 2d 557 (2011). 3 Finally, the district court did not abuse its discretion8 when it denied an evidentiary hearing on Flesher’s allegations, which, on this record, warranted summary dismissal.9 AFFIRMED. 8 See United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003). 9 See Lambert v. Blodgett, 393 F.3d 943, 980 (9th Cir. 2004); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980); cf. Blackledge, 431 U.S. at 75–76, 97 S. Ct. at 1630. 4	{ "pile_set_name": "FreeLaw" }
603 S.W.2d 861 (1980) Karl STEWART, Appellant, v. The STATE of Texas, Appellee. Nos. 63653, 63654. Court of Criminal Appeals of Texas, Panel No. 2. May 28, 1980. Rehearing Denied September 17, 1980. Robin Collins, Nacogdoches, for appellant. Herbert B. Hancock, Dist. Atty. and Martha J. Sullivan, Asst. Dist. Atty., Nacogdoches, Robert Huttash, State's Atty., Austin, for the State. Before DOUGLAS, ROBERTS and CLINTON, JJ. *862 OPINION DOUGLAS, Judge. These are appeals from revocations of probation for possession of marihuana. Punishment was assessed at five years. Two police officers of the Nacogdoches Police Department testified that, at night, while on routine patrol through a residential neighborhood, they observed a van and an automobile parked at the end of a dead end street in front of a house then under construction. There were no other homes on the block. As the police officers approached the van, they shined their spotlights into the van and saw four people inside. The policemen left their car and approached the van on foot. The man on the driver's side of the van got out. When he did so, the police smelled the odor of burning marihuana. The driver gave consent to search the van. The marihuana was in the van when this consent to search was given. Officer Russell Hayter stated that as he looked into the van he saw a red and white knapsack. After all four occupants were outside the van, Officer Hayter saw the knapsack again, this time underneath the van. When he opened it, he found several plastic bags of marihuana. The other occupants of the van testified that the marihuana belonged to Stewart. Stewart contends that the police officers did not have sufficient articulable circumstances to justify an investigatory stop according to the standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976). The officers did not stop Stewart. The van was already stopped. Stewart got out of the van without being requested to do so. In Terry v. Ohio, supra, the Supreme Court held that the Fourth Amendment to the United States Constitution became applicable only when the individual is "seized", that is, whenever a police officer accuses an individual or restrains his freedom to walk away. See Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977). The intrusion of an individual's expectation of privacy must be balanced against the promotion of a legitimate government interest in the continuing investigation of crime. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). In the present case, there was no intrusion on Stewart's expectation of privacy. The police exercised no authority until after they had smelled the odor of burning marihuana. The driver of the van was not ordered out of the van; to the contrary, the record shows he got out of the van before the police officers got near the van. The mere approach of the police officer to the van interfered with no one's freedom of movement and caused minimal inconvenience and loss of time. There was no unconstitutional search or seizure. No abuse of discretion in revoking probation has been shown. The judgments are affirmed. ROBERTS and CLINTON, JJ., concur in the result.	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 08a0652n.06 Filed: October 24, 2008 No. 07-5867 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE NEELY L. HENRY, ) MIDDLE DISTRICT OF TENNESSEE, ) NASHVILLE DIVISION Defendant-Appellant, ) ) ) Before: BOGGS, Chief Judge; GIBBONS and GRIFFIN, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Neely L. Henry appeals the district court’s denial of his motion to suppress. Henry argues that the evidence discovered during a search of 2414 25th Avenue North, Nashville, Tennessee, executed pursuant to a warrant, should have been suppressed because the warrant lacked probable cause. Because we find that the district court did not err in finding probable cause, we affirm the district court’s denial of Henry’s motion to suppress. Within 72 hours prior to December 10, 2005,1 a confidential informant working for the Metropolitan Nashville Police Department (“MNPD”) purchased powder cocaine at 2414 25th 1 The Pre-Sentence Investigation Report (“PSR”) states that the warrant was executed on December 13, 2005; the warrant itself is dated December 10, 2005. -1- United States v. Henry, No. 07-5867 Avenue North, Nashville, Tennessee (the “residence”). According to the investigation, the residence belonged to Marjorie Rucker, mother of the defendant, Neely Henry; according to Rucker, she was out of town during the period in question and had asked Henry to watch her apartment while she was away. In the affidavit supporting the search warrant, Officer Reece stated as follows: My name is Steve Reece and I have been a sworn law enforcement officer since 1991. I have participated in narcotics enforcement since 1994 and was assigned to the North Sector Crime Suppression Unit in February of 2004. Within the last 72 hours, a reliable CI was searched and given previously photocopied buy money by Officer McCormack and directed to go to 2414 25th Avenue North. Said CI went directly to the residence, knocked on the door, unknown subject answered the door CI [sic] went inside the location, stayed momentarily. The CI returned back to the CI’s vehicle and was followed by undercover officers to an undisclosed location where the CI gave Under cover [sic] officer a plastic baggie with cocaine inside, which tested poss. For Cocaine Base [sic]. CI was searched again, Police did not find any contraband. Said CI is familiar with said narcotic from previous experience exposure [sic]. Said CI wishes to remain anonymous for fear of reprisal. The affidavit also detailed Officer Reece’s experience and the basis of his general knowledge relevant to the search warrant. Based on the affidavit, a search warrant was issued on December 10, 2005. The warrant was executed on December 13, 2005. Upon entering the apartment, officers found Henry either still in or just getting out of the shower. Henry was the only individual in the apartment at that time. After being read his Miranda rights, the defendant informed the officers that there were drugs in the pocket of his pants, which were located in his bedroom, and that there was a gun under the pillow on his bed. In executing the search warrant, the officers discovered the following evidence: (1) powder and crack cocaine in the pocket of Henry’s pants; (2) three hundred and fifty seven dollars in cash in Henry’s pants’ pocket; (3) a set of electronic scales in the kitchen of the apartment; and (4) a .38- caliber revolver, which had been manufactured outside of Tennessee. -2- United States v. Henry, No. 07-5867 Before the district court, Henry argued that the warrant was not supported by probable cause. At the suppression hearing, the government explained that the confidential informant had been wired during the transaction in question; that information, however, was never communicated to the magistrate judge issuing the search warrant and was never explicitly referenced in the affidavit supporting the search warrant. Thus, the government conceded that “the court can’t really consider [the informant’s wire] . . . .”2 The district court, emphasizing that it was only looking to the four corners of the affidavit, concluded that there was probable cause to support the search warrant. Henry subsequently accepted a conditional plea agreement, pleading guilty to possession of a controlled substance with intent to distribute and being a felon in possession of a firearm, but reserving the right to appeal the district court’s denial of his motion to suppress. “In reviewing a district court’s suppression determination, we review findings of fact for clear error, and legal conclusions de novo.” United States v. Moon, 513 F.3d 527, 536 (6th Cir. 2008). “Generally, the Fourth Amendment requires police officers to obtain a warrant prior to conducting a search.” United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007). “A warrant will be upheld if the affidavit provides a ‘substantial basis’ for the issuing magistrate to believe ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Id. at 652 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “The probable cause standard is a ‘practical, non-technical conception’ that deals with the ‘factual and practical considerations of everyday life.’” United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005) (quoting Gates, 462 U.S. 2 The government was careful, however, to condition that statement by noting that it was making such a concession based on its understanding of the district court’s prior ruling. -3- United States v. Henry, No. 07-5867 at 231). In turn, when a warrant is supported by an affidavit, “[c]ourts should review the sufficiency of the affidavit in a commonsense, rather than hypertechnical manner.” United States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001). Furthermore, “review of an affidavit and search warrant should rely on a ‘totality of the circumstances’ determination, rather than a line-by-line scrutiny.” Id. Thus, “[t]o justify a search, the circumstances must indicate why evidence of illegal activity will be found ‘in a particular place.’ There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.’” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)). That being said, “our review of the sufficiency of the evidence supporting probable cause is limited to the information presented in the four-corners of the affidavit.” Frazier, 423 F.3d at 531 (6th Cir. 2005).3 This court has previously explained that “in the absence of any indicia of the informants’ reliability, courts insist that the affidavit contain substantial independent police corroboration.” Id. at 532.4 “However, this independent police corroboration may be established by a police-monitored 3 Importantly, Frazier addressed a circumstance where a confidential informant recorded the transactions in question, but those recordings were not referenced in the affidavit supporting the search warrant. 423 F.3d at 531. Thus, this court explained that it could not consider any testimony from law enforcement officers stating that the confidential informant had recorded the transactions. Id. For similar reasons, the fact that the confidential informant in this case appears to have worn a wire does not factor into our analysis as it was neither referenced in the affidavit, nor was it mentioned to the magistrate judge issuing the warrant. 4 While it is true that Officer Reece described the confidential informant as “reliable” in his affidavit, he failed to explain the grounds for this characterization. Thus this characterization provides significantly less corroboration of the confidential informant’s reliability than the characterization in United States v. Pinson, where the officer stated in the affidavit that he “kn[ew] said CI [was] reliable from past information received from said CI,” 321 F.3d 558, 561 (6th Cir. 2003), or the characterization in United States v. Allen, where the officer stated that he knew the CI for five years and that “said informant ha[d] given [the officer] information about individuals -4- United States v. Henry, No. 07-5867 controlled buy . . . .” United States v. Hawkins, No. 07-3634, 2008 U.S. App. LEXIS 11439, at 16 (6th Cir. May 23, 2008). Indeed, law enforcement officers frequently employ controlled purchases of illegal narcotics in order to establish probable cause in circumstances where they cannot personally vouch for the reliability and credibility of a particular confidential informant. See, e.g., United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (concluding that “corroboration of events that occurred during the controlled buy, as set forth in the affidavit, provide sufficient probable cause to sustain issuance of the search warrant”); United States v. Coffee, 434 F.3d 887, 894 (6th Cir. 2006) (affirming the district court’s conclusion that even though there were no statements in the affidavit about the reliability of the CI, “[the officer’s] statements that he set up the controlled buy and took necessary precautions before and after the orchestrated purchase adequately corroborated the CI’s information and, thus, provided sufficient probable cause for the issuance of the search warrant”); United States v. Pinson, 321 F.3d 558, 563 (6th Cir. 2003) (noting that “the affidavit in th[e] case contained [the officer’s] personal observation, his pat down of the informant before and after the purchase of the narcotics, and the fact that the drugs purchased by the involved in criminal activity in the past that ha[d] proven to be reliable.” 211 F.3d 970, 971 (6th Cir. 2000) (en banc). Thus for the warrant to have been supported by probable cause, the CI’s reliability hinges primarily on the independent police corroboration stemming from the controlled buy at the residence. See also United States v. Koerth, 312 F.3d 862, 867 (7th Cir. 2002) (“[C]haracterizations, standing alone without any supporting factual information, merit absolutely no weight and that information obtained from a reliable source must be treated as information obtained from an informant of unknown reliability.” (internal quotation marks and citation omitted)). -5- United States v. Henry, No. 07-5867 confidential informant were later tested positive for cocaine base”).5 While in some cases the independent corroboration detailed in an affidavit has included a wire worn during the controlled purchase, see, e.g., Jackson, 470 F.3d at 308, “the affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.” Pinson, 321 F.3d at 562 (6th Cir. 2003) (quoting Allen, 211 F.3d at 975). In a recent unpublished case, this court held that two controlled purchases were sufficient to corroborate the reliability of a confidential informant despite the fact the informant did not wear a wire during the purchase. Hawkins, 2008 U.S. App. LEXIS 11439, at 17 (concluding that officers took the “necessary precautions before and after the orchestrated purchase adequately corroborated the CI's information and, thus, provided sufficient probable cause for the issuance of the search warrant” (quoting Coffee, 434 F.3d at 894 and citation omitted)). In addition, this court found sufficient independent corroboration where law enforcement officials conducted only one controlled purchase and listened to the controlled purchase via a listening device. See Jackson, 470 F.3d at 307.6 Admittedly, in the instant case, the affidavit only details one controlled purchase and fails to mention whether law enforcement officials monitored the purchase with a listening device. That 5 For this reason, although Henry cites on a number of occasions to United States v. Leake, 998 F.2d 1359 (6th Cir. 1993), the case is readily distinguishable. Most notably, law enforcement officials did not conduct a controlled purchase in Leake but instead relied upon an anonymous caller who provided information that was not “rich” in detail. Id. at 1365. 6 In addition, in Jackson, the court found sufficient corroboration despite the fact that the affidavit supporting the search warrant failed to attest to any reliable track record of the confidential informant. Jackson, 470 F.3d at 307. While the court in Jackson did, in part, rely on the fact that the informant wore a monitoring device during the purchase, the court’s conclusion in Jackson would appear to undermine Henry’s claim that attestation to the informant’s track record is necessary to support a finding of probable cause. (See Appellant’s Br. 19-22). -6- United States v. Henry, No. 07-5867 notwithstanding, and in reliance on both Hawkins and Jackson, under the totality of the circumstances in this case, the single controlled purchase was sufficient independent corroboration of the confidential informant. Thus, the warrant was supported by probable cause. Henry additionally argues that the affidavit supporting the search warrant was insufficient to establish probable cause because the officers allowed the confidential informant to travel to the residence in his own vehicle but failed to inspect the vehicle prior to the controlled purchase. (Appellant’s Br. 25). It is true that in other cases addressed by this court, law-enforcement officers were careful also to inspect the confidential informant’s vehicle prior to the controlled purchase. See, e.g., United States v. Sales, 247 F. App’x 730, 734 (6th Cir. 2007) (noting that the officers “searched the CI and her/his vehicle for drugs before and after the buy”). However, the officers did search the informant himself both before and after the controlled purchase. They provided him with previously photocopied money and conducted surveillance before, during, and after the controlled purchase. Under such circumstances, it would seem that there was indeed a “fair probability that contraband or evidence of a crime w[ould] be found in a particular place.” See Gates, 462 U.S. at 238 (1983). Indeed, to reject the district court’s finding of probable cause would be tantamount to reviewing the sufficiency of the affidavit in a hypertechnical manner instead of employing common sense and relying on the totality of the circumstances. See Greene, 250 F.3d at 479.7 7 Henry also appears to make an argument about the staleness of the evidence underlying the search warrant. (Appellant’s Br. 18). This court, however, has upheld search warrants under similar circumstances where the controlled purchase in question had occurred in the 72 hours prior to the issuing of a search warrant. See, e.g., United States v. Harvey, 2007 U.S. App. LEXIS 11041, at *11 (6th Cir. May 7, 2007) (finding that probable cause did not become stale where the informant observed criminal activity within 72 hours prior to submission of affidavit); Jackson, 470 F.3d at 308 (finding three-day period between controlled buy and issuance of search warrant reasonable); United -7- United States v. Henry, No. 07-5867 For the foregoing reasons, we affirm the district court’s denial of Henry’s motion to suppress. States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003) (holding that information regarding drug dealing that was “at most four days old” at time of search was not stale). -8-	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION JUN 27 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-50346 Plaintiff - Appellee, D.C. No. 3:09-cr-03180-DMS v. MEMORANDUM * JOSE BERNAL VALDEZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted June 15, 2011 ** Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges. Jose Bernal Valdez appeals from the district court’s order denying his motion to dismiss his indictment charging him with being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Valdez contends that the district court erred in denying his motion to dismiss the indictment because the underlying removal hearing violated his due process rights. Specifically, Valdez argues that the immigration judge (“IJ”) violated his rights by failing to inform him that he might be eligible for relief from removal under sections 245(a) and 212(c) of the Immigration and Nationality Act. The district court properly denied the motion to dismiss the indictment because Valdez has not shown that his due process rights were violated by defects in the underlying immigration proceeding, and because there was no prejudice as a result of any alleged defects. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003); see also United States v. Moriel-Luna, 585 F.3d 1191, 1197 (9th Cir. 2009) (“We do not require IJs to speculate about the possibility of anticipated changes of circumstances and advise aliens of facts not suggested in the record.”). AFFIRMED. 2 10-50346 3 10-50346	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ ROGER GORE, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2010-7090 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-3894, Judge Robert N. Davis. ___________________________ Decided: November 3, 2010 ___________________________ ROGER GORE, of Fayetteville, North Carolina, pro se. MICHAEL D. SNYDER, Trial Attorney, Commercial Liti- gation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were TONY WEST, Assistant Attor- ney General, JEANNE E. DAVIDSON, Director, and GORE v. DVA 2 DEBORAH A. BYNUM, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and BRIAN D. GRIFFIN, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before BRYSON, SCHALL, and PROST, Circuit Judges. PER CURIAM. Roger Gore appeals the February 26, 2010, decision of the United States Court of Appeals for Veterans Claims (“the Veterans Court”). That decision affirmed a Novem- ber 18, 2008, decision of the Board of Veterans’ Appeals denying Mr. Gore’s claim of service connection for post- traumatic stress disorder (“PTSD”). Mr. Gore’s appeal is based mainly on a challenge to a factual determination and as such is outside our scope of review; to the extent Mr. Gore raises a separate legal argument regarding his entitlement to an additional level of review within the Department of Veterans Affairs (“DVA”), we reject his legal argument and therefore affirm the Veterans Court’s decision. BACKGROUND Mr. Gore served in the U.S. Army from 1970 to 1990, including service in Vietnam. On May 25, 2005, he filed a claim for benefits for PTSD. To establish service connec- tion for PTSD the veteran must establish a link between his current symptoms and an in-service stressor. If the veteran did not serve in combat, service connection will be granted only if the veteran submits corroborating evi- dence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The regional office denied Mr. Gore’s claim because his service records did not indicate that he served 3 GORE v. DVA in combat and did not reflect the presence of any psycho- logical symptoms during his service, and because Mr. Gore did not submit any corroborating evidence that he served in the area where the stressful event is alleged to have occurred. Mr. Gore filed a Notice of Disagreement. Along with that Notice, Mr. Gore stated that his unit came under enemy attack and that he witnessed the death and seri- ous injury of fellow service members while stationed at Tan Son Nhut Air Base. He also submitted a statement from a private psychiatrist documenting his PTSD symp- toms. The regional office sent Mr. Gore a request for further information to substantiate his claimed in-service stressors, as his military records did not reflect that he experienced an enemy attack. Mr. Gore informed the regional office that he had nothing further to submit. The regional office then issued a Statement of the Case ex- plaining that it had denied his claim because he had failed to establish a link between his current symptoms and his service. The regional office noted that his records did not show that he had engaged in combat and there was “no other credible supporting evidence that your claimed in-service stressors occurred.” Mr. Gore then appealed to the Board of Veterans’ Ap- peals. The Board noted that Mr. Gore’s service records indicate that while he was in Vietnam he was based at Phu Lam where he served as an equipment repairman. The Board found no evidence of combat experience or other in-service stressor in Mr. Gore’s military records, nor did it find any corroboration for his claimed in-service stressors. Accordingly, the Board determined that the weight of the evidence supported the regional office’s conclusion that Mr. Gore is not entitled to service connec- tion for PTSD. GORE v. DVA 4 Before the Veterans Court, Mr. Gore argued that the Board’s finding that he was based at Phu Lam was erro- neous and that, instead, he was based at Tan Son Nhut Air Base, where he witnessed numerous enemy attacks. The Veterans Court stated that Mr. Gore had not pointed to anything in the record that showed he was stationed at Tan Son Nhut Air Base and that the court had found no reference to Tan Son Nhut Air Base in the record. Be- cause he failed to offer corroborating evidence of any in- service stressor, the court affirmed the denial of service connection for Mr. Gore’s PTSD. DISCUSSION Mr. Gore presents two issues on appeal. First, he ar- gues that the Board erred in finding that the evidence does not support his contention that he was present at Tan Son Nhut during an enemy attack. Second, he ar- gues that the Board’s decision conflicts with 38 U.S.C. §§ 511(a) and 7104(a). The first issue is a pure question of fact. This court has limited jurisdiction to hear appeals from the Veterans Court. Except to the extent that an appeal presents a constitutional issue, this court may not review challenges to factual determinations or challenges to the application of a law to the facts of a particular case. 38 U.S.C. § 7292(d)(2). Mr. Gore’s challenge to the adverse factual findings that led the Board to deny his claim of service connection is thus outside our jurisdiction. As to the second issue, Mr. Gore’s contention appears to be that the Board’s decision denied him his statutory right to a review of the Secretary’s decision because the Board’s analysis of his evidentiary showing was more detailed than that of the regional office. Section 511(a) 5 GORE v. DVA gives the Secretary of Veterans Affairs authority to decide all questions of law and fact necessary to determining the veteran’s entitlement to benefits. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 419 F.3d 1317, 1320 (Fed. Cir. 2005). Section 7104(a) provides that decisions falling within section 511(a) “shall be subject to one review on appeal to the Secretary.” Mr. Gore appears to contend that the Board in effect made new factual find- ings not made by the regional office and that he was denied his statutory right to “one review on appeal” with respect to those factual findings. The Board reviewed the record before the regional of- fice and determined, as had the regional office, that the record contained no evidence substantiating Mr. Gore’s claim of an in-service stressor. The Board was more explicit than the regional office in describing the evidence that Mr. Gore had submitted in support of his claim, including evidence referring to his assignment in Viet- nam. Although Mr. Gore seems to suggest that the Board’s more detailed explanation for why the evidence was insufficient to prove service connection denied him his statutory right to “one review on appeal” within the DVA, we reject that argument. The Board reviewed the regional office’s decision that Mr. Gore had failed to provide credible supporting evidence that the claimed in- service stressor actually occurred. The fact that the Board described the evidence that Mr. Gore had submit- ted, and that it discussed why that evidence was not sufficient to corroborate his claim of an in-service stressor, does not deprive the Board’s decision of its character as a review of the decision of the regional office. The Board’s decision therefore accorded Mr. Gore the right to review within the DVA to which section 7104(a) entitled him. Accordingly, we reject Mr. Gore’s challenge to the decision of the Veterans Court on that ground, and GORE v. DVA 6 we affirm the court’s judgment. However, we note, as did the Veterans Court, that Mr. Gore is not without re- course. If he should present new evidence that he was present during an attack on Tan Son Nhut Air Base, as he contends, the regional office might reopen his claim. No costs. AFFIRMED	{ "pile_set_name": "FreeLaw" }
746 F.Supp. 278 (1990) CEDAR BROOK SERVICE STATION, INC., et al., Plaintiffs, v. CHEVRON U.S.A., INC., and Cumberland Farms, Inc., Defendants. No. 86 C 4240. United States District Court, E.D. New York. August 13, 1990. 279 Arnold P. Azarow (Susan G. Piskiel, of counsel), Westbury, N.Y., for plaintiffs. Cohen, Milstein, Hausfeld & Toll (Jerry S. Cohen, of counsel), Washington, D.C., for plaintiffs. Wilentz Goldman & Spitzer (Frank M. Ciuffani, of counsel), Woodbridge, N.J., Pillsbury Madison & Sutro (Robert P. Taylor, of counsel), San Francisco, Cal., for defendant Chevron U.S.A. Inc. Dewey, Ballantine, Bushby, Palmer & Wood (John Collins, of counsel), New York City, Collier, Shannon & Scott (James R. Loftis, III, R. Timothy Columbus, Gerard P. Fox, Robert M. Hubar, of counsel), Washington, D.C., Mark G. Howard, Canton, Mass., for defendant Cumberland Farms, Inc. MEMORANDUM AND ORDER NICKERSON, District Judge: In 1986, defendant Chevron U.S.A. Inc. ("Chevron") sold its United States northeast regional motor fuel properties, including service stations and related contracts and leases to defendant Cumberland Farms Inc. ("Cumberland"). Plaintiffs, eleven New York service station dealers, brought this action against Chevron and Cumberland to set aside the sale as violative of the Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq. (hereinafter the "Act") and of New York law, asserting that under the Act plaintiffs are entitled to an opportunity to purchase the stations they leased under their franchise agreements. Citing recent federal court decisions, defendants move to reconsider Judge Costantino's decision denying them summary judgment in a Memorandum and Order of June 5, 1989, 746 F.Supp. 268 ("Cedar Brook I"), familiarity with which is assumed. Background This is one of various suits challenging Chevron's sale to Cumberland of various motor fuel marketing assets Chevron had acquired from the Gulf Corporation in 1984. The history of that takeover and of the decision to sell those assets is more fully detailed in Cedar Brook I. The sale transferred to Cumberland almost five hundred service station properties, as well as gasoline distribution terminals, warehouses, associated inventories, accounts receivable, and other properties, together with Chevron's supply agreements with jobbers and service station dealers, including plaintiffs. Under the asset purchase agreement Cumberland assumed all of Chevron's contractual commitments, including its leases to service station dealers such as plaintiffs, and related supply agreements. As franchise agreements came up for renewal, Cumberland was obligated to offer, in good faith, a new franchise to each dealer on non-discriminatory terms and conditions, in accordance with the Act. To ensure that the "Gulf" trademark remained available to Gulf dealers, Chevron granted Cumberland exclusive use of the trademark in the northeast United States for 15½ years at no royalty, with an option to renew indefinitely for $1,000,000 per year. Chevron also transferred its northeast Gulf and Chevron credit card systems, and agreed to sell Cumberland virtually the entire gasoline output of Chevron's Philadelphia refinery. This agreement, extended in 1987, continues on a year-to-year basis. By letter dated February 14, 1986, Chevron notified all affected Gulf and Chevron dealers of the sale, which closed on May 31, 1986. That letter advised each dealer that Chevron did not believe that the sale to Cumberland triggered the Act or represented a termination or nonrenewal of the dealer's contract of sale, service station lease and related agreements with Chevron. The letter assured the dealers that they would 280 retain all of their rights under the Act against Cumberland Farms. The letter went on to recite that, on the chance that someone might later claim that the transfer involved a termination or non-renewal subject to the Act, Chevron was taking the precaution of giving formal notice of nonrenewal of dealer agreements in accordance with the Act, although "in fact" the agreements with Chevron would continue in effect and would be renewed by Cumberland. At the time of the sale plaintiffs were leasing their stations and purchasing gasoline from Chevron under product supply agreements for resale under the Gulf trademark. After the sale plaintiffs continued to do business under their service station leases, using the Gulf trademark, buying gasoline at the same prices as they had from Chevron. As each dealer lease expires, Cumberland offers a new lease which contains a seven percent increase over the previous rent plus increases in applicable property taxes. Seven plaintiffs have signed new leases with Cumberland. Plaintiffs claim that the sale resulted in the termination or nonrenewal of their franchises in violation of the Act. The Act provides that no franchisor may "terminate any franchise" or "fail to renew any franchise relationship" except under the conditions enumerated in the Act. 15 U.S.C. § 2802(a). Defendants contend that there has been no such termination or failure to renew within the meaning of the Act, arguing that the assignment did not affect the statutory rights of the franchisees and that there was no constructive termination of the franchise by reason of an assignment invalid under state law. Alternatively, defendants say that even if the assignment be deemed a termination of the franchises, defendants complied with the market withdrawal provisions of 15 U.S.C. § 2802(b)(2)(E), reciting the conditions under which a franchisor withdrawing from a regional market may decline to renew a franchise relationship. Standard of Review As plaintiffs point out, Cedar Brook I is now "law of the case." Generally, once a court decides a rule of law, that decision should govern the same issues in later stages of the case. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). But this is no more than a sensible practice in the judge's discretion, and does not prohibit the court from correcting error. See id. Where circumstances warrant the court may reconsider. See Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134 (2d Cir.) cert. dismissed, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956). Such circumstances exist here. Since the argument of Cedar Brook I, two circuit courts have ruled on the issue of whether the Act applies to an assignment in cases involving either the assignment from Chevron to Cumberland, see Ackley v. Gulf Oil Corp., 889 F.2d 1280 (2d Cir.1989), aff'g 726 F.Supp. 353 (D.Conn.), cert. denied, ___ U.S. ___, 110 S.Ct. 1811, 108 L.Ed.2d 941 (1990), or one identical in its terms, see May-Som Gulf, Inc. v. Chevron U.S.A., Inc., 869 F.2d 917 (6th Cir.1989). In light of these decisions, the District of New Jersey has recently reconsidered and changed its decision in another case involving this transaction cited in Cedar Brook I. See Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., No. 86-4748, 86-5107, opinion at 6-7, 1990 WL 61787 (D.N.J. May 4, 1990) (hereinafter Florham Park III). The court thus considers it appropriate to entertain defendants' renewed motion for summary judgment. It may grant summary judgment if "there is no genuine issue as to any material fact." Fed.R. Civ.P. 56(c). The burden of so showing rests on the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The court resolves all ambiguities and draws all reasonable inferences in favor of the party opposing the motion. Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). 281 Applicability of the Act The overriding purpose of the Act was to protect franchisees from "arbitrary and discriminatory terminations or nonrenewals of their franchises." S.Rep. No. 731, 95th Cong., 2d Sess. 15, reprinted in 1978 U.S.Code Cong. & Admin.News 873, 874 (hereinafter Senate Report). To this end, the Act prohibits franchisors from terminating a franchise or not renewing a franchise relationship except under specific enumerated conditions. See 15 U.S.C. § 2802(b). In order to establish a claim under the Act, a franchisee must prove either a termination of the franchise or nonrenewal of the franchise relationship. "Franchise relationship" is defined in the statute as "the respective motor fuel marketing or distribution obligations and responsibilities of a franchisor and a franchisee which result from the marketing of motor fuel under a franchise." 15 U.S.C. § 2801(2). Cedar Brook I rejected defendants' argument that there was no termination or nonrenewal of the franchise relationship because Cumberland completely assumed Chevron's obligations. The court distinguished the term "franchise relationship" as defined in the Act at 15 U.S.C. § 2801(2) from the same term as used in § 2802(b)(2)(A). Citing the Senate Report at page 30, 1978 U.S.Code Cong. & Admin. News at p. 888, the court in Cedar Brook I read that term as used in § 2802(b)(2) to mean "the relationship between the parties rather than the specific rights or obligations of the parties under the franchise agreement." Cedar Brook I, memorandum at 11 (emphasis added in opinion). The court considered Chevron's withdrawal from retail marketing constituted a nonrenewal of the "relationship", even though plaintiffs were afforded continued protection of their franchise rights. Id. at 11-12. On reconsideration, an examination of the legislative history persuades this court that it does not support this conclusion. The relevant passage is as follows: In connection with the nonrenewal provisions of the title, ... [t]he term [franchise relationship] is utilized for two reasons. First, in the renewal context, the contract which constitutes the franchise may no longer exist and the term "franchise relationship" is utilized to avoid any contention that because the "franchise" does not exist there is nothing to renew. The renewal provisions of the title address the renewal of the relationship between the parties rather than the specific rights or obligations of the parties under the franchise agreement. Second, because the title contemplates changes in the specific provisions of the franchise agreement at the time of renewal, the title requires renewal of the relationship between the parties as distinguished from a continuation or extension of the specific provisions of the franchise agreement. Use of the narrow term "franchise" in this context could raise unintended questions regarding the ability of the franchisor to comply with the renewal obligations of the title by offering a franchise agreement which differs in any particular from the expiring franchise. Senate Report at 30, 1978 U.S.Code Cong. & Admin.News at 888. In other words, the term "franchise relationship" signifies more than the provisions of a particular expiring franchise agreement. Thus, the franchisor in renewing the franchise need not offer terms identical to those in an expiring franchise, provided, of course, that the basic franchise relationship is maintained. By the same token, the franchisor cannot put off the franchisee's request to renew until the franchise has expired and then claim there is no franchise to renew. But this court does not read the Senate Report to suggest that the franchise relationship must exist only between the same "parties," so that no assignment by the franchisor is valid. The language of the Senate Report is entirely consistent with the statutory definition in 15 U.S.C. § 2801(2) of the "franchise relationship" as the respective "motor fuel marketing or distribution obligations and responsibilities of a franchisor and a franchisee which result 282 from the marketing of motor fuel under a franchise." The Act in 15 U.S.C. § 2801(1) defines a "franchise" in terms of three elements, namely, a contract to use the refiner's trademark, a contract for supply of fuel to be sold under the mark, and a lease of premises for sale of the fuel. See Barnes v. Gulf Oil Corp., 795 F.2d 358, 360 (4th Cir.1986). So long as the franchisee retains the right to enforce these obligations and responsibilities, there has been no failure to renew the franchise relationship. The fact that these obligations and responsibilities have been assumed by some one other than the franchisor does not mean there is no franchise. Plaintiffs have neither alleged nor presented evidence that the assignment compromised any of the three elements defined by the Act to constitute plaintiffs' "franchises." Cumberland purchased the stations leased by plaintiffs, who continue to occupy them under either the terms of their leases with Chevron or renewal leases. Cumberland acquired the right to use the Gulf trademark with an option to renew indefinitely. Plaintiffs conduct their business under the Gulf trademark, with the benefit of the Gulf and Chevron credit card system. Plaintiffs continue to purchase Gulf brand gasoline, with supply still guaranteed from Chevron's Philadelphia refinery and Cumberland's other sources. The provisions of 15 U.S.C. § 2806(b) make it clear that the mere making of an assignment valid under state law does not accomplish a "termination" of the franchise or "failure to renew" the franchise relationship. That section provides, in pertinent part, that "nothing" in the Act "prohibits any transfer or assignment of any franchise" as authorized by the franchise or by state law. It is fatuous to suppose that legislation including this provision had as its purpose to make every assignment of a franchise a "termination" or "failure to renew." Of course, the assignee, in this case Cumberland, is not as a result of the assignment free to flout the Act. Should Cumberland terminate a franchise or fail to renew a franchise relationship, plaintiffs retain their statutory rights. Moreover, the terms of the Act suggest that Congress did not design it to prohibit petroleum companies from making all large scale assignments of assets such as the one at issue. May-Som Gulf, 869 F.2d at 921-22; Florham Park III, opinion at 10; Russo v. Texaco, Inc., 630 F.Supp. 682, 683 (E.D.N.Y.1986). This court concludes that, provided the assignment is valid under applicable state law, the Act does not make the assignment a termination of a franchise or a failure to renew a franchise relationship. The United States District Court for the District of Connecticut reached the same result in Ackley v. Gulf Oil Corp., 726 F.Supp. 353 (D.Conn.1989) (hereinafter "Ackley") and the Court of Appeals affirmed "substantially" for the reasons given by the District Court. Ackley v. Gulf Oil Corp., 889 F.2d 1280 (2d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1811, 108 L.Ed.2d 941 (1990). Similar holdings were made in May-Som Gulf and Florham Park III. An assignment invalid under state law may be regarded as a constructive termination under the Act. Such a purported assignment might infringe the franchisee's rights under the Act. See Barnes v. Gulf Oil Corp., 795 F.2d 358, 363 (4th Cir.1986). But plaintiffs have not alleged illegality under New York law. New York permits assignment of contractual rights and delegation of contractual duties, except where the contract calls for personal services, or prohibits assignment, or where assignment materially alters the rights and duties of the other party. Smith v. Craig, 211 N.Y. 456, 461, 105 N.E. 798 (1914). Plaintiffs have not argued any such exception applies to their leases and supply agreements. A lease agreement, such as the service station leases here, is freely assignable incidental to the sale of the leased property, absent some restriction in the lease. Reltron Corp. v. Voxakis Enterprises, 57 A.D.2d 134, 137-8, 395 N.Y.S.2d 276, 279 283 (4th Dep't 1977). Plaintiffs allege no such restriction. The element of plaintiffs' franchises that comprises the supply agreements for gasoline is governed by New York's version of section 2-210 of the Uniform Commercial Code, which provides in relevant part: (1) A party may perform his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract. (...) (2) Unless otherwise agreed all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his contract, or impair materially his chance of obtaining return performance. N.Y.U.C.C. § 2-210. As noted above, plaintiffs have neither alleged that Chevron's duties under the supply agreements were personal nor non-delegable by agreement. See May-Som Gulf, 869 F.2d at 924. Nor have plaintiffs provided any evidence that the assignment has materially changed their duties, increased their burdens, or impaired their chance of receiving return performance. Plaintiffs have alleged that (1) Cumberland is more interested in maximizing the value of its acquired real estate than in maintaining unprofitable stations, and has converted several stations not involved in this suit into convenience food stores; (2) Cumberland's president opined he would change or drop the Gulf trademark if by doing so he could sell more gasoline; (3) the gasoline pricing formula for Cumberland-operated stations is different and historically somewhat lower than that used for dealer-operated stations; (4) the new franchise leases give Cumberland the right of first refusal if a franchisee wishes to assign his franchise, and involve higher rents than the old franchises; and (5) some stations have used a combined Cumberland-Gulf logo. These and similar allegations have been considered and found wanting by the courts in the supervening decisions of Ackley, May-Som Gulf, and Florham Park III. Missing from the present record is any evidence that these circumstances have harmed or may harm the plaintiffs. To the extent that they are speculative, such allegations are insufficient to raise an issue of material fact. Ackley, 726 F.Supp. at 363. As mentioned above, should Cumberland wilfully terminate the Gulf trademark, or improperly terminate plaintiffs' leases, plaintiffs at that moment will have a claim under the Act. Id. Changes made by Cumberland that were within Chevron's prerogative to make are likewise insufficient to show a burden or impairment flowing from the assignment at issue. The franchise agreements establish no fixed or comparative price of gasoline to be sold to dealers. See Ackley, 726 F.Supp. at 364, May-Som Gulf, 869 F.2d at 924. Changes that Cumberland subsequently instituted in renewal leases are not relevant to the question whether the initial assignment materially increased plaintiffs' burdens or risks. Ancillary issues concerning Cumberland's supposed deficiencies in support services, such as training, advertising, or promotion, are likewise irrelevant as plaintiffs have shown no contractual right to these services. They are not part of a franchise under the Act. May-Som Gulf, 869 F.2d at 925. The court finds plaintiffs' other arguments without merit for the reasons given in Ackley and May-Som Gulf. Plaintiffs have failed to raise an issue of material fact as to whether the assignment violated either plaintiffs' franchises under the Act or New York law. The court need not address defendants' alternative argument that they have complied with the market withdrawal provisions of the Act. State Law Claim No federal issue remains. The court therefore declines to consider the pendent claim under New York's General Business Law. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). 284 Conclusion The court's order of June 5, 1989 is vacated and defendants' motion for summary judgment is granted. So ordered.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE FILED ROBERT W. BAGBY, ) C/A NO. 03A01-9705-CV-00183 ) December 9, 1997 Plaintiff-Appellee, ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) ) APPEAL AS OF RIGHT FROM THE v. ) CARTER COUNTY CIRCUIT COURT ) ) ) ) DEAN RUSSELL CARRICO, ) ) HONORABLE G. RICHARD JOHNSON, Defendant-Appellant. ) CHANCELLOR, By Interchange For Appellant For Appellee THOMAS R. BANKS HOWELL H. SHERROD, JR. Banks & Banks Sherrod, Stanley, Lincoln & Elizabethton, Tennessee Goldstein Johnson City, Tennessee OPINION AFFIRMED AND REMANDED Susano, J. 1 In this case, the plaintiff claims that the defendant made an intentional misrepresentation in connection with the sale of a tract of unimproved real property. Following a bench trial, the court found that the defendant, Dean Russell Carrico (“Carrico”), had fraudulently misrepresented a material fact, resulting in a judgment of $21,911.97 for the plaintiff, Dr. Robert W. Bagby (“Bagby”). The trial court also found that Carrico’s conduct violated the Tennessee Consumer Protection Act of 1977, T.C.A. § 47-18-101, et seq. (“the Act”). Carrico appealed, raising three issues that present the following questions for our review: 1. Was the Chancellor correct in finding that Bagby and Carrico entered into an agreement to buy property together? 2. Was the Chancellor correct in finding that Carrico was guilty of a fraudulent misrepresentation? 3. If Carrico made a misrepresentation of fact, was Bagby’s reliance on the misrepresentation reasonable? I In the spring of 1995, Carrico commenced negotiations with Michael Miller and his wife, Alesia Miller (“the Millers”) to purchase the Millers’ 40-acre tract of land. The Millers and Carrico subsequently agreed upon a purchase price of $2,500 per acre. Several weeks later, Carrico contacted Bagby, who had previously told Carrico that he would be interested in purchasing some property “with a view,” and offered to sell one-half of the Miller tract to Bagby for $3,450 per acre. 2 Bagby testified that Carrico told him that he, Carrico, had agreed to pay the Millers $3,450 per acre. Carrico, however, testified that he had made no such representation, but had only quoted that amount as the sale price between himself and Bagby. Bagby testified that they agreed that Carrico would purchase the entire tract, at $3,450 per acre, and would then sell half of the land to Bagby at the same price. It is undisputed that the parties agreed to share equally the cost of a survey and the attorney’s fees attendant to the transaction. Carrico subsequently billed Bagby for half of the fees charged by the attorney and surveyor. Bagby had no contact with the attorney, the surveyor, or the Millers; nor did he review any paperwork between the Millers and Carrico. Carrico’s transaction with the Millers was closed on June 28, 1995. The deed to Carrico, which reflects a purchase price of $100,600 -- representing 40.24 acres at $2,500 per acre -- was recorded immediately after the closing. Carrico and Bagby completed their transaction the same afternoon. Bagby paid Carrico $69,414 for 20.12 acres, or $3,450 per acre. Approximately one month later, Bagby discovered that Carrico had paid only $2,500 per acre for the entire tract. Bagby and his wife testified that when Bagby confronted Carrico regarding the discrepancy, Carrico stated that he had paid the Millers “something under the table” in addition to the $2,500 per acre, and thus had paid as much for his half of the tract as had Bagby; however, there was no other evidence at trial of an “under the table” payment. 3 Bagby filed suit, alleging that Carrico was guilty of a fraudulent misrepresentation, as well as a violation of the Act. The trial court agreed and entered judgment in favor of Bagby on both theories. The trial court specifically found that Carrico had falsely stated to Bagby that the price of the property was $3,450 per acre, when in fact it was only $2,500 per acre. The court also stated that “particularly in this case, word against word, the Court has devoted time and effort in evaluating and weighing and determining the credibility of the parties and their witnesses.” The trial court awarded Bagby compensatory damages of $19,414, pre-judgment interest of $2,497.97, attorney’s fees, and certain discretionary costs. It declined, however, to award treble damages under the Act, finding that such an award was not appropriate under the circumstances. Likewise, the court refused to award punitive damages, finding that Bagby had “failed to prove the elements of punitive damages by clear and convincing evidence.” II Our review of this non-jury case is de novo upon the record of the proceedings below; however, that record comes to us with a presumption that the trial court’s factual findings are correct. Rule 13(d), T.R.A.P. We must honor this presumption unless we find that the evidence preponderates against those findings. Id.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law, however, are not afforded the same deference. Campbell v. Florida Steel 4 Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993). Our de novo review is subject to the well-established principle that the trial court is in the best position to assess the credibility of the witnesses; accordingly, such credibility determinations are entitled to great weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991). In fact, this court has noted that ...on an issue which hinges on witness credibility, [the trial court] will not be reversed unless, other than the oral testimony of the witnesses, there is found in the record clear, concrete and convincing evidence to the contrary. Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974). III To prevail on a claim of fraudulent misrepresentation, a plaintiff must demonstrate that: 1) the defendant made a representation of an existing or past fact; 2) the representation was false when made; 3) the representation was in regard to a material fact; 4) the false representation was made either knowingly or without belief in its truth or recklessly; 5) plaintiff reasonably relied on the misrepresented material fact; and 6) plaintiff suffered damage as a result of the misrepresentation. 5 Metropolitan Gov’t of Nashville and Davidson County v. McKinney, 852 S.W.2d 233, 237 (Tenn.App. 1992)(citing Graham v. First American Nat’l Bank, 594 S.W.2d 723, 725 (Tenn.App. 1979)); Devorak v. Patterson, 907 S.W.2d 815, 819 (Tenn.App. 1995). In cases involving fraud in the sale of real property, this court has held that [o]ne who in a real estate transaction in which he has a pecuniary interest supplies false information for the guidance of others is subject to liability for the pecuniary loss caused to them by their justifiable reliance on such information. Youngblood v. Wall, 815 S.W.2d 512, 518 (Tenn.App. 1991)(citing Chastain v. Billings, 570 S.W.2d 866 (Tenn.App. 1978)). Generally speaking, the measure of damages in a fraud case is to compensate the injured party for actual damages by attempting to place that party in the same position that he or she would have been in had the fraud not occurred. Harrogate Corp. v. Systems Sales Corp., 915 S.W.2d 812, 817 (Tenn.App. 1995); Youngblood, 815 S.W.2d at 518. IV The trial court found that each of the elements of a fraudulent misrepresentation were present in this case. After reviewing the record, we are of the opinion that the evidence does not preponderate against this conclusion. Rule 13(d), T.R.A.P. As stated earlier, the trial court’s determinations 6 regarding witness credibility are afforded great deference on appeal. Massengale, 915 S.W.2d at 819; Bowman, 836 S.W.2d at 566. It is clear that the trial court accredited Bagby’s testimony to the effect that Carrico had stated that he was paying the Millers a price of $3,450 per acre for the property. Carrico argues that the trial court erred in finding that the parties entered into an agreement to buy property together, in finding that Carrico was guilty of fraudulent misrepresentation, and in finding that Bagby’s reliance on any misrepresentation was reasonable. Carrico contends that he and Bagby were neither partners nor engaged in a joint venture. We believe that the question of whether the parties were partners or engaged in a joint venture is immaterial. Such a relationship is not a prerequisite to a finding of a fraudulent misrepresentation in this case. For the elements of such a claim, see, e.g., Devorak, 907 S.W.2d at 819; McKinney, 852 S.W.2d at 237. Secondly, Carrico argues that he had no duty to disclose to Bagby the nature of his dealings with the Millers. We find this argument to be without merit. Carrico did have an obligation to respond truthfully when Bagby asked him the purchase price of the property. This is not a case of fraudulent concealment; on the contrary, it involves an affirmative misrepresentation. As found by the trial court, Carrico stated that he was paying $3,450 per acre for the property. 7 Carrico maintains that the proof does not establish that he made that representation to Bagby. He supports this contention by pointing out that the parties’ testimony on this point is in conflict, and that another witness, Bert Pat Wolfe, Jr., testified that he did not specifically hear Bagby ask Carrico if the Millers were selling Carrico the land for $3,450 per acre. Wolfe’s testimony, however, indicates that Carrico did specifically represent to Bagby that $3,450 per acre was the purchase price: Q. Tell the Court what you heard and what was said and what the price was. A. Well, while we were standing in the road looking at the property... Dr. Bagby confirmed with Mr. Carrico that thirty-four hundred and fifty ($3,450.00) dollars was the price per acre that they were paying. Mr. Carrico confirmed that thirty-four hundred and fifty ($3,450.00) dollars was the purchase price. Q. And is there any doubt in your mind about that? A. That thirty-four hundred and fifty ($3,450.00) dollars was the price? Q. Right. A. No sir. Q. For the whole tract. A. For the whole tract. Q. Did you understand it that Dr. Bagby and Mr. Carrico were going to split the tract at some point in time? A. Yes sir. Twenty acres each. The trial court obviously accredited this testimony, along with that of Bagby. Again, these determinations pertain to the 8 credibility of the witnesses and are entitled to great weight on appeal. Massengale, 915 S.W.2d at 819; Bowman, 836 S.W.2d at 566. We have found no “clear, concrete and convincing” evidence to contradict the trial court’s credibility determinations. Tennessee Valley Kaolin Corp., 526 S.W.2d at 490. Finally, Carrico contends that, if he did make a misrepresentation, Bagby’s reliance on his misrepresentation was not reasonable, due to the fact that Bagby had equal access to the information in question, i.e., the true purchase price of the property from the Millers. In support of his argument, Carrico cites three cases for the proposition that a party’s reliance upon a fraudulent misrepresentation is not reasonable where the means of knowledge is readily within that party’s reach. See McKinney, 852 S.W.2d at 239; Solomon v. First American Nat’l Bank, 774 S.W.2d 935, 943 (Tenn.App. 1989); Winstead v. First Tennessee Bank N.A., Memphis, 709 S.W.2d 627, 633 (Tenn.App. 1986). The facts of the McKinney and Solomon cases are inapposite to those of the instant case. In the Winstead case, which did involve a sale of real property, the Court of Appeals stated that the general rule regarding justifiable reliance and the means of knowledge is applicable [u]nless the representations are such as are calculated to lull the suspicions of a careful man into a complete reliance thereon.... 9 Winstead, 709 S.W.2d at 633. We find that this language is particularly applicable to the facts of the instant case. It is apparent that Carrico’s representations were calculated to reasonably induce in Bagby a belief that Carrico was paying $3,450 per acre for the subject property. It is also clear that Bagby relied completely on Carrico’s representations. Having misrepresented a material fact to one who had placed his trust in him, Carrico cannot now claim that the injured party should have independently discovered that he was not telling the truth. Id. Furthermore, we disagree with Carrico’s contention that Bagby “had equal access to the information in question.” Bagby was under no duty to contact the Millers, or to investigate the terms of their agreement with Carrico; nothing that Carrico did or said was reasonably calculated to make Bagby suspicious or put him on notice that something was amiss. Likewise, Bagby should not be charged with constructive notice of the actual purchase price simply because that amount was reflected on a deed recorded only hours before the closing of his own transaction with Carrico. In any event, it has been held that one who practices bad faith upon another may not invoke the doctrine of constructive notice in aid of his own wrongdoing. Hamilton v. Galbraith, 15 Tenn.App. 158, 175 (1932). For these reasons, we find no merit in Carrico’s contention that Bagby’s reliance upon his representations was unjustified. We find that the evidence does not preponderate against the trial court’s findings that Carrico made a misrepresentation of an existing fact; that the representation was false when made; that the representation was in regard to a material fact; that 10 Carrico made the false representation knowingly; that Bagby reasonably relied on Carrico’s misrepresentation; and that Bagby suffered damages as a result of the misrepresentation. See Devorak, 907 S.W.2d at 819; McKinney, 852 S.W.2d at 237. We do not find it necessary or appropriate to examine the trial court’s alternative basis of liability under the Act. It is not necessary because the lower court’s judgment can be sustained on the plaintiff’s theory of fraudulent misrepresentation; it is not appropriate because Carrico advances no issues under the Act. See Rules 13(b) and 27(a)(4), T.R.A.P. V The appellee Bagby contends that, since Carrico’s acts were intentional, the damages awarded by the trial court should be multiplied. As stated earlier, the applicable measure of damages in a case of fraudulent misrepresentation is the amount of actual damages sustained by the defrauded party. Harrogate Corp., 915 S.W.2d at 817; Youngblood, 815 S.W.2d at 518. In contrast, treble damages are available under the Act to remedy willful or knowing violations; however, the Act vests the trial court with broad discretion in determining whether to award such relief. T.C.A. § 47-18-109(a)(3); see also Smith v. Scott Lewis Chevrolet, Inc., 843 S.W.2d 9 (Tenn.App. 1992). Assuming, without deciding, that the Act applies to this transaction,1 we find no abuse of discretion in the trial court’s decision not to 1 Cf. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997). 11 multiply the damages. Likewise, to the extent that Bagby argues that he is entitled to punitive damages, we do not find that the evidence preponderates against the trial court’s finding that Bagby failed to prove the requisite “egregious conduct” by clear and convincing evidence, as required by Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Bagby seeks counsel fees for this appeal, contending that it is frivolous in nature under T.C.A. § 27-1-122. We disagree; therefore, his request is denied. Accordingly, the judgment of the trial court is in all respects affirmed. Costs on appeal are taxed to the appellant and his surety. This case is remanded to the trial court for the enforcement of the judgment and collection of costs assessed below, all pursuant to applicable law. __________________________ Charles D. Susano, Jr., J. CONCUR: _________________________ Houston M. Goddard, P.J. _________________________ William H. Inman, Sr.J. 12	{ "pile_set_name": "FreeLaw" }
Case: 12-51292 Document: 00512547609 Page: 1 Date Filed: 02/28/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 12-51292 FILED February 28, 2014 Lyle W. Cayce UNITED STATES OF AMERICA Clerk Plaintiff - Appellee v. EDUARDO A. ROBLES Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-1478-1 Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM:* Defendant Eduardo A. Robles pled guilty to assaulting a federal officer in violation of 18 U.S.C. § 111(a). Robles was sentenced to 51 months pursuant to U.S.S.G. § 2A2.2, which applies to “aggravated assault.” Robles appeals his sentence, arguing that he should have been sentenced under § 2A2.4, the guideline that applies to simple assault. We affirm. * 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: 12-51292 Document: 00512547609 Page: 2 Date Filed: 02/28/2014 No. 12-51292 FACTS AND PROCEEDINGS Eduardo A. Robles (“Robles”) pled guilty without the benefit of a plea agreement to 18 U.S.C. § 111, assaulting a federal officer. 1 ROA 48. On May 25, 2012, an officer with the El Paso, Texas Police Department attempted to conduct a traffic stop on Robles, who was observed driving over 100 m.p.h. Presentence Rep. (“PSR”) ¶ 3. While attempting to flee into Mexico, Robles crashed into a metal barricade. PSR ¶¶ 3-5. Upon observing Robles collide with the barrier, Border Patrol Agent James Lowry (“Lowry”) took cover behind his vehicle, which was parked between Lowry and the Mexican border. PSR ¶ 5. In an attempt to flee to Juarez, Mexico, 2 Robles got out of his vehicle and “physically charged” at Agent Lowry, “intentionally” running towards him. PSR ¶¶ 4-5. He impacted Lowry, causing the agent to fall backwards approximately 10 feet, hitting his head on the pavement and suffering minor injuries. PSR ¶¶ 5-6. An officer smelled alcohol on Robles’s breath and noticed two open containers of alcohol on the floor of Robles’s vehicle. PSR ¶ 3. The PSR applied § 2A2.2(a) and assigned Robles a base offense level of 14. PSR ¶ 13. After various adjustments, Robles’s total offense level was 22. PSR ¶¶ 14-22. When that level was combined with a criminal history category of III, the resulting guidelines imprisonment range was 51 to 63 months. PSR ¶¶ 24-30, 50. Robles objected, contending that the probation officer should have applied § 2A2.4—rather than § 2A2.2—when determining the offense level because his conduct did not constitute “aggravated assault.” 1 Section 111 does not differentiate between simple assault and aggravated assault. That distinction is found in U.S.S.G § 2A2.4(c)(1)—the applicable guideline for § 111—which states that “[i]f the conduct constituted aggravated assault, apply § 2A2.2 (Aggravated Assault).” 2 ROA 111 (“After waiving his Miranda rights, Robles stated that he had been drinking and was trying to get to Juarez, Mexico.”). 2 Case: 12-51292 Document: 00512547609 Page: 3 Date Filed: 02/28/2014 No. 12-51292 The Government responded that the probation officer applied the correct guideline, reasoning that Robles’s conduct was an aggravated assault because he committed it with the intent of committing another felony, specifically, felony flight by motor vehicle and a third driving while intoxicated offense. At sentencing, defense counsel reiterated his contention that § 2A2.4 should apply in determining the offense level. ROA 69-71. The Government persisted in its view that § 2A2.2 was the appropriate guideline. ROA 76-80. It urged that Robles assaulted the agent as Robles was driving while intoxicated and fleeing in a motor vehicle, both felonies under Texas law. ROA 77. The Government acknowledged that it was possible that when Robles crashed his vehicle, he was no longer trying to evade authorities, but maintained that the “better argument” was that fleeing in the vehicle, running, and assaulting the agent, were all a part of Robles’s attempt to avoid being caught for drunk driving and fleeing in a motor vehicle. ROA 78. The district court agreed with the Government but did not make any specific factual findings. ROA 81-82. It imposed a sentence of 51 months of imprisonment, the bottom of the guidelines range. ROA 82. Robles filed a timely notice of appeal. ROA 58. STANDARD OF REVIEW The court reviews the district court’s interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s determination that Robles’s conduct evidenced an intent to commit another felony during the course of felonious assault is a factual finding. See, e.g., United States v. Goynes, 175 F.3d 350, 353 (5th Cir. 1999) (“The district court’s determination that [the defendant’s] conduct evidenced an intent to carry out his threat [resulting in a six-level increase under 3 Case: 12-51292 Document: 00512547609 Page: 4 Date Filed: 02/28/2014 No. 12-51292 U.S.S.G. § 2A6.1(b)(1)] is a factual finding, and must be reviewed for clear error.”). “[I]n determining the applicability under the present § 2A2.4(c)(1) of § 2A2.2, the district court is not limited to considering the conduct of the offense of conviction, but also may consider the defendant’s ‘underlying conduct’ or, as some courts state, the ‘relevant’ conduct.” United States v. Street, 66 F.3d 969, 979 (8th Cir. 1995); United States v. Valdez-Torres, 108 F.3d 385, 387 (D.C. Cir. 1997). DISCUSSION The question on appeal is not whether the district court properly applied or interpreted the sentencing guidelines. Rather, the question is whether Robles’s conduct evidenced an intent to commit another felony during the course of felonious assault. Unless the district court’s determination that he intended to commit another felony was clearly erroneous, we must affirm. The offense level for Obstructing or Impeding Officers, U.S.S.G. § 2A2.4, is calculated as follows: (a) Base Offense Level: 10 (b) Specific Offense Characteristics (1) If (A) the offense involved physical contact; or (B) a dangerous weapon (including a firearm) was possessed and its use was threatened, increase by 3 levels. (2) If the victim sustained bodily injury, increase by 2 levels. (c) Cross Reference (1) If the conduct constituted aggravated assault, apply § 2A2.2 (Aggravated Assault). In turn, U.S.S.G. § 2A2.2 cmt. n.1, defines “aggravated assault” as “a felonious assault that involved . . . (C) an intent to commit another felony.” The 4 Case: 12-51292 Document: 00512547609 Page: 5 Date Filed: 02/28/2014 No. 12-51292 government argues that Robles assaulted Lowry—a felony under 18 U.S.C. § 111—with the intent to commit the felony of evading arrest with a vehicle. 3 Texas Penal Code section 38.04—Evading Arrest or Detention—provides that “[a] person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.” Section 38.04(a). While evading arrest is generally a misdemeanor, it becomes a “state jail felony” if “the actor uses a vehicle . . . while the actor is in flight.” There is no question that Robles used a vehicle in his initial attempt to evade the police prior to the assault. The question is whether he intended to evade the police using a vehicle when he assaulted Lowry. Robles argues that the crime of evading arrest using a vehicle was complete when he abandoned the car, negating the intent necessary to elevate his simple assault into aggravated assault. Because the felony at issue is a product of Texas law, we are bound by the state court’s construction of evading arrest. “A State’s highest court is unquestionably ‘the ultimate exposito[r] of state law.’” Riley v. Kennedy, 553 U.S. 406, 409 (2008). Under Texas law, the crime of fleeing arrest in a vehicle is a continuous offense. See Hobbs v. State, 175 S.W.3d. 777, 778 (Tex. Crim. App. 2005). In Hobbs, defendant used a vehicle to flee from police officers. 175 S.W.3d at 778. He eventually abandoned the vehicle, fled on foot, and began searching for a place to hide. Defendant broke in to a woodshed, where the police later found him hiding. He was convicted for burglary of a habitation with intent to commit felony evading arrest. On appeal, defendant argued that “because the felony evading arrest offense was completed when [he] abandoned his vehicle”—before his entry into the woodshed—he lacked the felonious 3 In the district court, the government also argued that Robles intended to commit his third driving while intoxicated offense—a state felony—while assaulting the agent, but it did not brief this contention on appeal and we do not address it. 5 Case: 12-51292 Document: 00512547609 Page: 6 Date Filed: 02/28/2014 No. 12-51292 “intent” required to sustain his burglary conviction. Id. at 778-79. Because evading arrest on foot was merely a misdemeanor, defendant argued that he lacked felonious intent at the time he broke-in to the woodshed. The Court of Criminal Appeals of Texas (“CCA”) affirmed his conviction. Finding that the felony of evading arrest using a vehicle continues until the defendant is apprehended, the CCA held that “the evidence must show only that appellant used a vehicle at some time during the commission of this offense.” Id. at 781. Because the plain text of section 38.04(a) “does not define separate offenses (or ‘allowable units of prosecution’) when different methods of locomotion are used,” it does “not require that appellant intended to use his abandoned vehicle (or some other vehicle) when he entered the habitation.” 4 Id. at 779. Likewise, under our own precedent, “A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.” United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996) (quoting United States v. Midstate Horticultural Co., 306 U.S. 161, 166 (1939)). The unlawful series of acts, “by its very nature, does not terminate until the date of the indictment or the voluntary termination of the illegal activity.” United States v. Maxim, 55 F.3d 394, 398 (8th Cir. 1995). In Santana-Castellano, we applied a continuing offense analysis to determine whether criminal history 4 In the CCA’s view, separating offenses by means of locomotion would lead to absurd results. See id. at 779 (“Under appellant's construction of Article 38.04(a), therefore, a person would commit 10 evading arrest offenses when (1) that person fled from the police in his car which he abandoned and (2) fled on foot until (3) he used a small-wheeled (less than 14 inches in diameter) bicycle which he abandoned and (4) fled on foot until (5) he used a pair of roller skates which he abandoned and (6) fled on foot until (7) he used a pair of roller-blades which he abandoned and (8) fled on foot until (9) he used a skateboard which he abandoned and (10) fled on foot until he was caught.”). 6 Case: 12-51292 Document: 00512547609 Page: 7 Date Filed: 02/28/2014 No. 12-51292 points were correctly calculated under the Guidelines. Santana-Castellano was an alien who had previously been deported, had illegally reentered and was ultimately convicted and sentenced in Texas state court for injury to a child. While serving his state sentence, he was interviewed by INS and discovered to be illegally present in violation of 8 U.S.C. § 1326. Santana- Castellano, 74 F.3d at 595. This court determined that because illegal reentry was a continuing offense, it was not error for the district court to find that the offense was committed “while under any criminal justice system sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Id. at 598. The court reasoned that because the illegal reentry offense started when Santana-Castellano entered the United States and did not terminate until he was discovered by the INS agents, he continued to commit the offense while in Texas state prison. Id. (citing Maxim, 55 F.3d at 397). Applying both our precedent regarding continuing offenses and Hobbs’s determination that evading arrest using a vehicle is a felony that continues until the suspect is apprehended, it is clear that Robles assaulted Lowry with intent to commit a separate felony. There is no doubt that he attempted to flee using a vehicle, nor that he was attempting to flee to Juarez, Mexico, once he exited the car and attacked Lowry. Under Hobbs, the fact that he abandoned his car is irrelevant; it is sufficient that he (1) formed the intent to flee, (2) utilized a vehicle, and (3) was continuing his flight at the time of the assault. The intent to evade arrest using a vehicle was established, and would not cease until he was apprehended or voluntarily terminated the illegal activity of 7 Case: 12-51292 Document: 00512547609 Page: 8 Date Filed: 02/28/2014 No. 12-51292 fleeing from law enforcement authorities. 5 The district court’s application of § 2A2.2 was not clear error. CONCLUSION For the reasons stated, the judgment of the district court is AFFIRMED. 5 Robles’s argument that United States v. Gomez-Vega governs this case is without merit. 471 F. App’x 327 (5th Cir. 2012). Unlike evading arrest using a vehicle—which continues until the suspect is apprehended—this court in Gomez-Vega found that the would- be intended felonies had already been completed. If Robles had already been apprehended, but then escaped on foot, Gomez-Vega might apply. But because he never completed the offense of evading arrest using a vehicle, this case is inapposite. 8	{ "pile_set_name": "FreeLaw" }
630 P.2d 977 (1980) STATE of Alaska, Appellant, v. ALASKA CONTINENTAL DEVELOPMENT CORPORATION and Alaska General Properties, Inc., Appellees. ALASKA CONTINENTAL DEVELOPMENT CORPORATION and Alaska General Properties, Inc., Cross-Appellants, v. STATE of Alaska, Cross-Appellee. Nos. 4121, 4122. Supreme Court of Alaska. December 31, 1980. 980 William R. Satterberg, Jr., and Gary W. Vancil, Asst. Attys. Gen., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellant and cross-appellee. H. Bixler Whiting, Whiting & Rosie, Fairbanks, for appellees and cross-appellants. Before RABINOWITZ, C.J., and CONNOR, BURKE and MATTHEWS, JJ. OPINION RABINOWITZ, Chief Justice. This is an appeal from what began as two eminent domain proceedings in Fairbanks. After separate master's hearings, the cases were consolidated in the superior court and heard in a non-jury trial. Portions of two tracts owned by the appellees, parcels four and seven, were taken for construction of the Parks Highway between Airport Road and Chena Pump Road. Another portion of one of these tracts, parcel one, was taken for the extension of Geist Road to its present intersection with the Parks Highway and Chena Pump Road.[] Parcels four and seven, about five and one-half and thirteen and one-half acres in size, respectively, were condemned in the spring of 1973. Parcel one, eight-tenths of an acre in size, was condemned in the spring of 1974.[1] In January 1974, the permit for construction of the pipeline to Prudhoe Bay was issued after several years delay. Thus, the times of taking occurred at the end of an economically "flat" period of few real estate sales to which the subject takings could be compared for valuation purposes. The impact of the highway projects themselves on the value of the subject parcels 981 was significant. The extension of Geist and its intersection with the Parks Highway near the northwest corners of parcels four and one greatly increased access and therefore commercial and higher-density residential use potential for all three parcels, although parcel seven already had access from Loftus Road. The parties disagreed over the following: the highest-use potential of the sites prior to the actual construction of either highway, the availability of access to the sites, whether utility assessments were prepaid for the taken portions, the feasibility of the owners themselves constructing access roads to parcels four and one, whether the Geist extension and Parks Highway were separate projects, and the degree to which value attributable to planned future public improvements can be included in a determination of just compensation. The estimates of just compensation submitted in the several appraisals performed for the parties reflect these differences and the uncertainty in the economy at the time of the taking. The appraisals submitted by the landowners were substantially higher than those submitted by the state, and there was a wide variance among all of the appraisals in evidence.[2] 982 In its decision, the superior court found the highest and best use for parcel four to be part commercial and part multi-family residential, and awarded $96,768 as just compensation, or $18,000 per acre. For parcel seven, the court found the highest and best use to be multi-family residential, and awarded $233,790 or $15,000 per acre as just compensation, including $30,000 in damages to the remainder of the tract not taken for the project. The court found commercial development to be the highest and best use for parcel one, and awarded $20,000 or about $25,250 per acre, as just compensation. The state now appeals various aspects of the superior court's determination of just compensation for the tracts, the assessment of certain attorney's fees and costs against the state, and the rate awarded for post-judgment interest. The landowners cross-appeal the determination of just compensation for parcel one, and the rate awarded for pre-judgment interest. We affirm the judgment of the superior court, except for the award for certain costs and for post-judgment interest. I. Enhanced Value from the Highway Projects The primary issue on appeal is whether the superior court erred in considering evidence of value added to the parcels by the expected construction of the two roads. The appraisals submitted by the landowner for parcel four mention the planned extension of Geist Road as a factor in determining the highest and best use of the taken land. The same is true for two of the three appraisals submitted by the landowner for parcel seven. One of the landowner appraisals for parcel one mentions that the access ramp built as part of the new Parks Highway at its intersection with Chena Pump Road creates access to the property at its northwest corner, and goes on to state that the parcel's highest and best use at the time of the taking would be for "speculative investment" in anticipation of the "long-discussed" Geist Road extension for which the parcel was ultimately taken. This appraisal concludes that the highest and best use of parcel one would be commercial if the Geist Road extension were connected to the Parks Highway at the Chena Pump Road intersection as planned, and for multi-family residential use if the extension were not completed.[3] Another of the landowner appraisals concluded that the "ultimate completion of Geist Road" would lead to some commercial development on parcel one in addition to the multi-family residential development projected regardless of the Geist extension. The superior court observed in its decision that the ready availability of utilities to the 983 subject properties was more significant than access in increasing the value of the parcels. However, the court noted that the owners were entitled to receive compensation for parcels four and seven attributable to the planned extension of Geist Road because it was a separate project from the Parks Highway construction for which these parcels were taken. The court concluded that value attributable to the Parks Highway could be considered in determining just compensation for parcel one, taken for the Geist extension, for the same reason. The superior court also concluded that just compensation for each parcel could include value from the expected construction of the Geist extension at least until 1968, because prior to that time no route which would take any of the subject property had been chosen for the project. The state challenges these findings, arguing that although the projects were designated as separate by the highway department, they were part of the same overall plan to restructure traffic flow through the area, and that the superior court erroneously included value from the projects attributable to years since 1968 in its awards. In Alaska, inclusion of value enhancement attributable to the project for which the property is being taken is generally prohibited in determining condemnation awards. AS 34.60.120(3) provides in pertinent part: A decrease or increase in the fair market value of real property before the date of valuation caused by the public improvement for which the property is acquired or by the likelihood that the property would be acquired for the improvement, ... will be disregarded in determining the compensation for the property. This general rule is in accordance with the requirement in the Alaska and United States Constitutions that just compensation be paid for private property taken for public use,[4] since it only prevents a landowner from receiving more value for his property than he would if the government had no use for his land and it was purchased by a private buyer. However, this rule does not preclude an owner from receiving compensation for value added to the property by an unrelated public project which took no portion of the tract involved. As stated in 4 J. Sackman, Nichols' The Law of Eminent Domain § 12.3151(3), at 12-470 (rev. 3d ed. 1979): [I]t has been held that, where property is enhanced in value by reason of a public project and subsequently the property is taken for another unrelated project the owner is entitled to recover the enhanced value brought about by the first project. See United States ex rel. TVA v. 137 Acres of Land, 406 F.2d 1283 (6th Cir.1969). As previously mentioned, the superior court concluded in its findings that the Geist Road extension and the Parks Highway were two separate projects for the purposes of determining just compensation. We agree that this determination is one of fact, which on review we may reverse only if it is "clearly erroneous."[5] Our conclusion is supported by precedent holding that a determination in a particular case of whether a parcel is within the original scope of a public project subsequently enlarged to require the taking of the tract is a question for the trier of fact. John L. Roper Lumber Co. v. United States, 150 F.2d 329, 331 (4th Cir.1945); cf. United States v. Certain Lands Located in the Townships of Raritan and Woodbridge, 144 F. Supp. 206, 213-14 (D.N.J. 1956), modified on other grounds, 246 F.2d 823 (3d Cir.1957). On the other hand, the conclusion that determining the scope of a project is a question of law reached in United States v. Reynolds, 397 U.S. 14, 20, 90 S.Ct. 803, 807, 25 L.Ed.2d 12, 18 (1970), and Wardy v. United States, 402 F.2d 762, 763 (5th Cir.1968), is premised on Federal Rule of Civil Procedure 71A(h), which reserves all legal and factual questions, except the determination of "just 984 compensation" in a jury trial, to the trial judge. There is no comparable rule governing eminent domain litigation in Alaska. In the case at bar, the trial judge acted as fact finder in lieu of a jury. The Wardy opinion characterizes the issue as a "legal" question, but does so incorrectly in our opinion. Determining the scope of a single project or the relationship between projects involves a determination from documents, testimony, and other evidence of the government's intent at a particular time. Under the "clearly erroneous" standard of review, we will not reverse a trial court's finding of fact unless "convinced, in a definite and firm way, that a mistake has been committed." Alaska Foods, Inc. v. American Manufacturer's Mutual Insurance Co., 482 P.2d 842, 848 (Alaska 1971). We conclude there was adequate evidence in the record here to support the superior court's findings as to separate projects. The projects were designated by the highway department under different numbers, one as a primary road and the other as a part of the secondary road system.[6] The condemnation proceedings for the parcels taken for the Parks Highway began a year prior to that for the parcel taken for the Geist extension, as a separate case, despite the fact that one parcel for the Parks Highway and the one for the Geist project were being taken from the same tract of land. Further the state's appraiser for parcel one considered the projects to be separate for the purposes of valuation, considering the Parks Highway as a given condition in appraising that parcel for the Geist extension taking. Another witness from the highway department also stated that the projects were separate. While the two roads both contributed to diverting traffic from the University area and met at an intersection, the state did not show that constructing either project was dependent upon the completion of the other. The superior court correctly observed that the burden of proving that the projects should be considered as one for valuation purposes was on the state, the party asserting the claim. United States ex rel. TVA v. 137 Acres of Land, 406 F.2d 1283, 1287 (6th Cir.1969). We turn next to the question of whether it was proper to consider value due to the expectancy of the Geist Road extension prior to the choice of the route which would take parcel one in determining just compensation for parcels four and seven. The appraisals for these parcels taken for the Parks Highway only mention value from the Geist extension in their analysis.[7] Two of the landowner appraisals for parcel one, taken for the Geist Road extension, also considered value from that project in determining compensation for that parcel. However, we agree with the superior court's conclusion that value resulting from the general knowledge that the project was 985 planned was proper to consider up to the date the route was chosen that would take parcel one. The applicable exception to the general prohibition against awarding enhanced value from the project for which a parcel is taken is referred to in Nichols' treatise as the "indefinite location" rule: It frequently happens that the exact site of the projected improvement is not determined until the condemnation proceedings have been actually instituted, and that it is only known in a general way that it will be located in a certain neighborhood. In such case the anticipatory rise or fall of values may affect all land in the neighborhood, and it may be the fact that when a certain location is taken, the land acquired had on the day of the institution of proceedings a greater or lesser market value than it would have had if there had been no preliminary discussion of the improvement. If this modification of values is to be disregarded, an exception to the rule that market value is the test must be recognized. To allow a public agency to depress market values in a particular neighborhood by threatening to erect an offensive structure in its midst, and then to take advantage of this depression in paying for the land required, would be so abhorrent to the public sense of justice that it has never been seriously argued that it could be done. When, however, the situation is reversed, and the preliminary discussion has enhanced the value of the land in the neighborhood, the courts have not been inclined to create an exception to the general rule that market value at the time of the taking is the conclusive test, and have usually held that the owner is entitled to the benefit of the appreciation in value from the general expectation that the improvement for which it was taken would soon be constructed. 4 J. Sackman, Nichols' The Law of Eminent Domain § 12.3151(2), at 12-459 to 12-460 (rev. 3d ed. 1979) (footnotes omitted). This rule derives in part from language in United States v. Miller, 317 U.S. 369, 377, 63 S.Ct. 276, 281, 87 L.Ed. 336, 344, reh. denied, 318 U.S. 798, 63 S.Ct. 557, 87 L.Ed. 1162 (1942), which dealt with the enlargement of an existing project: The question then is whether the respondents' lands were probably within the scope of the project from the time the Government was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the meantime by the proximity of the improvement.[8] "Authority to Proceed" with the Geist Road project was given in 1964, which was authority to proceed with necessary preliminary studies leading to the selection of a preferred route. A 1962 Department of Highways Development plan showed a planned extension of Geist Road to the Nenana Highway, along a route which would not take any of the subject parcels. The route through parcel one was selected in 1968. Given these facts, we cannot conclude that the superior court's finding that parcel one was not properly within the scope of the Geist Road project until 1968 was "clearly erroneous." If some of the appraisals considered by the superior court included value attributable to the period after 1968, as the state alleges, we conclude that any error in admitting that evidence was harmless.[9] The amount of just compensation awarded by the superior court for parcel one was less than the amount determined in an appraisal originally performed for the state which did 986 not consider any value from the extension of Geist Road.[10] Furthermore, the award was considerably lower than the amount suggested in the other appraisals offered by the landowner.[11] II. Motion for Evidentiary Ruling and for Ruling of Law Prior to Trial In a related argument, the state complains about the superior court's refusal to rule, prior to trial, generally on the admissibility of enhancement in value evidence, in order that both parties could apply the correct rule of law in preparing their appraisals. We hold that no error was committed. The state originally moved, four months prior to trial, for an evidentiary ruling generally barring evidence of enhancement of value due to the proposed highway projects. The state later moved for a further evidentiary ruling to "clarify the extent of the `project' in this case." The superior court denied these motions without prejudice, stating that the motions were premature and could be renewed at trial. The state then filed a "motion for ruling of law" requesting the court to "affirm the principles of condemnation" set forth in the state's memoranda accompanying the prior motions. The trial court denied this motion as premature, immediately prior to trial. The basic defect in the state's argument is that it fails to recognize the difficulty the superior court would have had in fashioning the orders requested prior to hearing any evidence. The proposed evidentiary ruling would have barred "all evidence of value, including expert testimony of [a] valuation witness, which incorporates such pre-condemnation enhancement in value of the land as was attributable to the proposed project," and would have ordered that the "proposed project" included both the Geist extension and the Parks Highway. The state requested the court to make this broad exclusionary ruling and these findings of fact without the benefit of any affidavits or other authenticated facts showing why the two projects should be considered as one, save for a single, brief affidavit from the highway department regional road design engineer, stating that the Geist extension had been considered as a connector to the Parks Highway since at least 1968. The request for a ruling of law referred the superior court back generally to the legal memoranda in support of the motion for an evidentiary ruling. These memoranda covered a wide range of eminent domain law pertaining to enhancement of value from public projects. Again, no substantiation or detailed presentation of the evidence expected to be presented was included so that the superior court could narrow its consideration of the applicable law to the facts of the case at hand. The state has not persuaded us that the court should have departed from normal practice and ruled on the admissibility of evidence prior to the time it was offered at trial, when its nature and the purpose for which it is offered could be ascertained. See generally C. McCormick, Law of Evidence § 51, at 109-12 (2d ed. 1972). The cases which the state cites in support of its argument are not supportive. State v. Leach, 516 P.2d 1383 (Alaska 1973), and Dash v. State, 491 P.2d 1069 (Alaska 1971), call for a liberal approach to the discovery and admission of valuation evidence in condemnation cases. In Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 146-48 (Alaska 1971), we vacated an establishment-preclusion order in a condemnation case which would have prevented the landowner from introducing evidence pertaining to the value of his property, much as the proposed order in the case at bar would have. In Babinec v. State, 512 P.2d 563, 568-69 987 (Alaska 1973), this court held in error a trial court instruction which determined that the properties in question comprised a single unsubdivided parcel for the purposes of valuation, where there was sufficient evidence offered at trial to justify submitting to the jury whether the properties should be valued as more than one parcel. While a clarification prior to trial of the law which the court intended to follow in considering the admissibility of valuation evidence may have assisted in the preparation of appraisals, the state has not presented a convincing argument that it was entitled to a ruling in a broad area of eminent domain law, without the superior court having the benefit of knowing the details of the factual context over which the parties were in dispute. III. Whether the Judgment for Parcels Four and Seven was Against the Substantial Weight of the Evidence[12] The state admits that it bears a heavy burden in contending that the trial court erred in its determination of just compensation for the above parcels. The burden is especially heavy with respect to condemnation proceedings, where considerable latitude must be accorded the trier of fact due to the complicated nature of property appraisals.[13] The length of the record and the disagreement among different appraisers over the value of the properties in this case bear this out. The state nevertheless proceeds with two corollary arguments as to why the judgment was against the substantial weight of the evidence, neither of which is persuasive. The state first of all complains that certain expert witnesses were allowed to remain in the courtroom and listen to testimony by other witnesses, despite the state's request that the court invoke the exclusionary rule.[14] The state goes on to assert that the presence of these witnesses in the courtroom had a tangible prejudicial effect upon the state's case, in that one of these witnesses, Mr. McCracken, persuaded the court to adopt his opinion as to prepaid assessments for utilities while not under oath, despite the court's ruling that his appraisal testimony would not be considered as evidence. The state also alleges prejudice from the court's reliance in its judgment upon another expert, Richard Follett, who allegedly changed his testimony in the course of the trial after listening to the testimony of other expert witnesses. The state, however, waived any objection it had to these experts being 988 present in the courtroom by explicitly agreeing to that procedure at trial.[15] Furthermore, if any error occurred, which we doubt given the discretion accorded the trial court in such matters,[16] it was harmless in our opinion. The state has not shown that McCracken's statements to the court or Follett's change in testimony affected the final judgment as to parcels four and seven in any prejudicial way. McCracken's statements to the court were to the effect that transfer of prepaid utility assessments from the taken parcels to other parcels did not eliminate all the value to the taken parcels from the nearby availability of sewer and other utilities, but only reduced the value of the parcels by the cost of installing the utilities.[17] The state admits that utilities were available to all of the parcels, and that the court did not consider value attributable to prepaid assessments in its final opinion. It is the lack of weight given to access value in the court's conclusions which the state criticizes, but the state never relates this criticism to McCracken's discussion with the court over utilities. As to Follett, he admitted at trial that he had not considered damage to parcel seven from loss of river frontage and said that if he were doing it over, he would change his appraisal, without specifying a greater estimate. Follett's testimony indicates that his opinion may have changed due to hearing other testimony at trial. The court accepted Follett's computation for value per acre for parcel four and his estimate for the damage to the remainder of parcel seven in its opinion. But these figures were contained in Follett's written appraisal prepared prior to any change in his testimony at trial.[18] The state's second argument is that the court failed to consider letters of valuation by a witness named Bruce Street, a local appraiser. Street had been hired by the landowners to substantiate values of lands which included the subject parcels, for the purposes of a proposed stock transfer between the landowner corporations. These letters of valuation state that they are not to be considered formal appraisals, but are determinations of fair market value "based on the best information available." They were prepared in the spring of 1972, about a year prior to the date of taking for parcels four and seven. They appear to consider, to varying degrees, value enhancement from the Parks Highway and Geist extension projects, and value the lands at between $6,000 and $8,000 per acre. These 989 values are approximately the same as the highest appraisals submitted by the state for parcels four and seven. Mr. Street also testified at trial that the letters were to justify values being claimed by the landowners in this stock transaction, and that the valuations did not ignore the influence of the planned projects, but also did not consider them as substantial factors in creating the value of the land. Since the stock transfer eventually took place, the state characterizes Street's opinions as evidence of the value of the parcels in a market transaction. The state contends that the court apparently "totally ignored" Street's opinion in reaching its final judgment. But the state provides no basis for this conclusion other than the divergence in Street's values from other appraisals performed for the landowners. Besides the condemnation appraisals and other evidence which supports the superior court's judgment, appraisals conducted in the fall of 1973 for another proposed stock exchange in which the landowner corporations were involved were submitted in evidence. These appraisals assign values in the range of $25,000-$35,000 per acre for the subject lands, considerably higher than the values awarded by the court. We therefore cannot agree with the state that the superior court failed to give any weight to the evidence from Street. Reviewing the totality of the evidence before the superior court, we conclude that the judgment as to parcels four and seven is supported by the substantial weight of the evidence.[19] Of the appraisals 990 and testimony of the expert appraisal witnesses presented by the landowners, the court chose the lowest appraisal submitted for each parcel. IV. Whether the Award for Parcel One Was Contrary to the Evidence The landowners raise this issue on cross-appeal. Their motion to reconsider the monetary award for parcel one under Civil Rule 77 was denied by the superior court. The landowners complain that the monetary award of $20,000 for this parcel is inconsistent with the court's finding of fact that the highest and best use for the parcel was commercial, since the only evidence submitted which appraised the property as purely commercial placed its value at a much higher figure.[20] We find no error in the denial of the motion. A trial court's decision on a motion to reconsider its judgment will be reversed on appeal for an abuse of discretion, only if this court is left with a definite and firm conviction from the whole record that the trial judge has made a mistake. Brown v. State, 563 P.2d 275, 279 (Alaska 1977). The superior court's award for parcel one is equivalent to about $25,250 per acre. This is over $7,000 per acre higher than its award for parcel four (taken from the same tract), which the court concluded had some commercial as well as multi-family residential potential. It is over $10,000 per acre greater than the award for parcel seven, which the court concluded was suitable for multi-family residential use alone. The court noted in its opinion the wide divergence between the appraisals submitted by the state and those submitted by the landowners: There is considerable variance in the opinions of the appraisers. The opinions on Parcel 1 range from Mr. Dirksen's $13,455.00 to Mr. Follett's $35,000.00. Mr. King is also low on Parcel 4, estimating a value of $10,750.00, while Mr. Yerkes concludes that $187,353.00 is fair. The ranges on Parcel 7 run from $39,500.00 (King) to $302,000.00 (Follett). The other values fall somewhere in between, with the appraisers who testified on behalf of the State generally being low, and the appraisers who testified on behalf of the Defendants generally being high. The court stated that it made its award for parcel one after "[c]onsidering all the testimony which has been presented with regard to Parcel 1." That the court accepted one appraiser's opinion regarding highest and best use, yet rejected his estimate of value for that use, or that no value equivalent to that awarded by the court was contained in the testimony of any single witness, does not convince us that the award was clearly mistaken. The testimony and other evidence in this case are sufficiently complex and contradictory to allow the trial court to balance and weigh all the evidence to reach 991 its judgment rather than choosing between accepting and rejecting the different value figures contained in each appraisal to arrive at an award. V. New Trial on the Basis of Newly Discovered Evidence of Fraud Six months after final judgment was entered, the state filed a motion for relief from judgment and for a new trial on the grounds of newly discovered evidence, pursuant to Civil Rule 60(b).[21] This motion was denied. The newly discovered evidence concerned Richard Follett, one of the landowners' appraisers whose testimony the trial court had in part relied upon in its judgment. The evidence consisted of Follett's testimony in a subsequent case, approximately one month after the final judgment in this case, in which Follett admitted to selecting comparable sales in the high end of the market spectrum in arriving at a value for just compensation in his condemnation appraisals, because the landowner was not a willing seller in such a transaction. Such an approach to condemnation appraisals is contrary to the law in Alaska that "fair market value," or the price a willing buyer would pay a willing seller for property, is the appropriate measure of "just compensation." State v. 7.026 Acres, 466 P.2d 364, 365 (Alaska 1970). The state argues that this evidence shows that Follett committed "fraud on the court" under Civil Rule 60(b) because he must also have ignored lower-priced comparable sales in his appraisals for this case, yet certified in his appraisals that they represented "market value" and reflected no personal bias. We disagree. The alleged fraud by Follett cannot be characterized as "fraud upon the court." Even if Follett's conduct falls within the guidelines of statutory perjury as the state contends, where perjury by a witness is unassisted by the party in interest or by counsel, the general rule is that the misconduct does not amount to "fraud upon the court."[22] While perjury by a witness is always a cause for concern, we do not believe, even if we were to accept the state's argument that Follett committed perjury, that in this case it would rise to the level of "the most egregious conduct involving a corruption of the judicial process itself," that we have required for a finding of "fraud upon the court" in past cases. Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976).[23] 992 We question whether the state's motion, as a motion based on Civil Rule 60(b)(2) or 60(b)(3), was timely. Civil Rule 60(b) requires that motions for relief from judgment based on newly discovered evidence or the fraud of an adverse party be made within a reasonable time, and not more than one year after judgment. Whether the state's five month delay in making it motion, after discovering the evidence, was "within a reasonable time" is questionable, since the state has offered no reason for the delay.[24] Concerning motions for a new trial based on newly discovered evidence, the evidence must be such as would probably change the result of the trial. National Bank of Alaska v. McHugh, 416 P.2d 239, 244 (Alaska 1966). Evidence which merely impeaches a witness's testimony is not usually sufficient to warrant the grant of a new trial. Id. at 244-45. This court will not reverse the trial court's denial of a Civil Rule 60(b) motion unless the denial is shown to be an abuse of discretion. Nordin Construction Co. v. City of Nome, 489 P.2d 455, 472 (Alaska 1971). In our opinion, the newly discovered evidence offered by the state in this case has no value beyond impeachment of Follett's testimony. Evidence that Follett relied only upon high comparable sales in his appraisals in another condemnation case does not prove that he slanted his appraisals in the case at bar. No evidence was developed in this case, by cross-examination or otherwise, that Follett selected and relied on certain comparisons to the exclusion of others in his appraisals. Follett's appraisals, like the other appraisals submitted by the landowner, incorporate comparable sales which are of higher value than several of those used by the state's appraisers, but this case is characterized by a lack of closely comparable sales to the subject property because of the uncertain market at the time of the taking. Moreover, counsel could have cross-examined Follett pertaining to comparable sales. Follett could have been questioned as to whether he considered certain sales of a lower value. If he indicated that he had not considered those sales, inquiry could well have led to discovery of Follett's alleged theory of considering only higher appraisals. Thus, the matter that is now presented as grounds for a new trial could very likely have been discovered by effective cross-examination. Accordingly, it appears that the requirement of Alaska Rule of Civil Procedure 60(b)(2), that the newly discovered evidence could not have been discovered by due diligence in time to move for a new trial under Rule 59(b), has not been met. The additional evidence was unlikely to change the result in this trial, even though it might have discredited Follett's testimony. The per acre figure for parcel four which the court adopted from Follett's 993 appraisal in its opinion was a little over half what was paid for the properties listed as comparable sales in that appraisal, and also less than the other appraisals submitted by the landowners. For parcel seven, the court adopted a per acre figure from another appraisal submitted by the landowner, $5,000 per acre lower than that of Follett's appraisal. The court accepted Follett's total figure of $30,000 for damages to the remainder of parcel seven, which was higher than other appraisals of that damage by several thousand dollars. As the landowners point out, however, the court's award covered damage both from loss of access and loss of river frontage, while Follett's appraisal figure only accounted for the loss of access. For parcel one, the court stated it relied on all the testimony presented, and awarded an amount less than two-thirds of that estimated as just compensation by Follett. We therefore hold that the superior court did not abuse its discretion in denying the motion for new trial. VI. Attorney's Fees and Costs Since the award of the superior court was in excess of the amount deposited by the state by more than ten percent, the state does not dispute the general validity of awarding attorney's fees and costs to the landowners pursuant to Civil Rule 72(k)(2).[25] The state argues, though, that certain fees and costs awarded were not justified under the rule. The state requests that we require fees and costs to be "necessarily incurred" in the course of litigation for them to be awarded under subsection (2) of Civil Rule 72(k) as we already require for awards under subsection (4) of the rule, in cases where the allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation of the owner. Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1250 (Alaska 1974). The state further urges that a successful defendant in an eminent domain action be required to bear the burden of substantiating that the costs and fees it claims were reasonably necessary to defend the action. We agree with the state that only expenses "necessarily incurred" in defending an eminent domain action should be awarded under subsection (2) of Civil Rule 72(k), despite the fact that only subsection (4) requires that the award appear necessary to achieve just compensation.[26] Automatically awarding all costs claimed by a party under subsection (2) of the rule is not mandated by the constitutional requirement of just compensation, any more than it is constitutionally required under subsection (4). See Department of Highways v. Salzwedel, 596 P.2d 17, 20-21 (Alaska 1979). There exists no more persuasive rationale for allowing a party to recover unnecessary expenses in cases where the party obtains an award ten percent higher than that deposited by the state or awarded by the master, and therefore becomes entitled to an award for costs and fees under subsection (2), than when the party does not meet the ten percent requirement and must rely on subsection (4) to obtain an award for costs and fees. We are of the further opinion that the defendant claiming costs and fees under the rule should be required to document them in reasonable detail so that it may be determined whether they were reasonably necessary to the defense of the action. In the case at bar, we are persuaded that there is merit in the state's argument that certain fees and costs were 994 not shown to be "necessarily incurred" as to one item fees to Michael McCracken for the preparation of appraisals for parcels four and seven. These appraisals were conducted only shortly before trial after a change in counsel for the landowners had occurred. The appraisals were excluded from evidence because they were submitted subsequent to the state's deposition of McCracken, wherein he stated he was unprepared to comment on any new appraisals, thereby denying the state proper discovery regarding the appraisals. In Department of Highways v. Salzwedel, 596 P.2d 17, 20-21 (Alaska 1979), we held a party responsible for his attorney's error in pursuing an unmeritorious legal claim in a condemnation proceeding, and held expenses claimed for that work not to be "necessarily incurred" and therefore unrecoverable under Civil Rule 72(k)(4). We think it proper in this case to likewise charge the defendant landowners with the failure to obtain McCracken's appraisals at a time that would have enabled their use as evidence. The landowners' argument that preparation of formal written appraisals by McCracken was necessary for him to prepare as an expert witness, when several other formal appraisals were already available to him, does not convince us that the cost of his appraisals was "reasonably necessary" to defend the landowners' position. However, even though McCracken's appraisals were excluded from evidence, McCracken not only testified at trial, but also acted as a consultant for the landowners' counsel. In fact, the state conceded that McCracken's services as a consultant may have merited some value. Therefore, as to the $16,712.50 in expenses claimed for McCracken's services, we reverse the superior court's award of expenses claimed for the preparation of McCracken's appraisals for parcels four and seven, and remand for a determination of those portions of McCracken's costs which were not related to the preparation of the appraisals but were necessarily incurred. We decline to reverse the superior court's award for the other items of costs and fees which the state disputes. As to $15,000 in attorney's fees awarded to the attorney who first handled the case for the landowners, the state argues that the fees may have included settlements for other claims in a lawsuit between the attorney and the landowners over fees. However, the record shows that upon the court's request after the state's objection to these fees, the landowners submitted an affidavit from their house counsel that the $15,000 was the portion of the settlement attributable to the attorney's work in this case, which amounted to 250 to 300 hours. The attorney in question handled the case for over two years and did considerable amounts of work. We cannot agree with the state's contention that more documentation than was presented is required to show these expenses to be "necessarily incurred." The state's remaining objection is to the award of $25 each to two individuals for testimony as expert witnesses, on the grounds that they were not qualified or introduced as experts at trial. These fees were documented in the detailed costs bill submitted to the court by the landowners. One of the witnesses was a local real estate consultant, and the other was a prominent local developer. Their testimony concerned almost exclusively their opinions about the probable value of the condemned property, based on their experience in the Fairbanks real estate market. Their credentials were established prior to their testimony. The state has provided no definition of an "expert witness" from which we could conclude these witnesses were not entitled to fees for their testimony under Alaska Administrative Rule 9(c), nor has the state shown that the superior court abused its discretion under the rule in permitting more than three expert witnesses to testify on the valuation issue.[27] 995 VII. Assessment of Interest on the Award for Just Compensation The trial judge established pre-judgment interest at six percent, but assigned an eight percent rate to post-judgment interest. Both parties appeal this decision. The state claims that post-judgment, as well as pre-judgment interest, should run at six percent under AS 09.55.440(a). The landowners argue that both pre-judgment and post-judgment interest should run at eight percent after September 12, 1976, the date the legislature changed the general legal rate of interest in the state to eight percent. While the parties appeared to eventually agree with the superior court's decision at trial, we conclude that the court committed plain error in not adopting the position the state asserts on appeal. The language of AS 09.55.440(a) unambiguously provides that the rate of judgment interest awarded under a declaration of taking proceeding such as this case will equal six percent for the time before and after judgment is entered: The judgment shall include interest at the rate of six per cent per year on the amount finally awarded which exceeds the amount paid into court under the declaration of taking. The interest runs from the date title vests to the date of payment of the judgment. [emphasis added][28] The landowners point to the fact that the statute establishing the legal rate of interest and the statute providing for the rate of interest on judgments in general in Alaska have been amended to provide for a rate of eight percent.[29] They further point out that the higher rate now applies to eminent domain cases where the state condemns property under a complaint seeking condemnation and an order for possession, rather than a declaration of taking, by virtue of the AS 09.55.330 provision that the "lawful" rate of interest applies to judgments in the former cases.[30] The landowners argue that the legislature's failure to amend AS 09.55.440(a) to provide for eight percent interest was a clear oversight on the part of the legislature, and ask this court to remedy the mistake. We note the disparity between the interest rate specified in AS 09.55.440(a) and the other statutes mentioned. We also are concerned about the inequity in awarding a higher rate of interest on judgments obtained in one form of eminent domain proceeding than in another, as may result from the current provisions of AS 09.55.440(a) and AS 09.55.330.[31] We strongly 996 urge the legislature to consider amending what appears to be a defect in the current statutory scheme. But we decline to repeal by judicial action the clear and unambiguous provision of an enactment of the legislature on the grounds that it must be an oversight.[32] A statute such as AS 09.55.440(a), specifically addressed to the subject of interest on judgments under a declaration of taking must take precedence over statutes pertaining to more general subject matter. Neither are the provisions of AS 09.55.440(a) irreconcilable with those pertaining to another form of eminent domain proceeding in AS 09.55.330. Absent more evidence that the legislature intended otherwise, we must presume the legislature was aware of the existence of AS 09.55.440(a) when it enacted amendments raising the rate of interest on judgments in other cases, and made a conscious decision not to amend AS 09.55.440(a).[33] The superior court should have, under AS 09.55.440(a), awarded interest at the rate of six percent on the award for the time both before and after judgment. The judgment of the superior court is AFFIRMED in part, MODIFIED in part, and REMANDED for a determination of costs in accordance with this opinion. BOOCHEVER, J., not participating. 997 APPENDIX "A" NOTES [] See Appendix "A" for a map of the subject parcels. [1] On April 6, 1973, the state filed a complaint which led to a declaration of taking for parcels four and seven. A complaint leading to a declaration of taking for parcel one was filed on March 29, 1974. The state's initial tender for parcels four and seven was $89,000, and for parcel one, $22,425. At the master's hearings, just compensation for parcels four and seven was determined to be $227,500, and for parcel one, $18,000. The state appealed the master's award for parcels four and seven; the landowners appealed the award for parcel one. [2] The following formal appraisals were admitted as evidence: Appraiser Award Highest Damage to Use Remainder Parcel Four (5.387 acres taken) State King 10,750 single family none residential Wakeland 24,000 moderate density none residential Potts 37,000 low to medium none density residential Landowner Follett 96,768 multi-family none residential Boucher 161,500 part commercial, none part multi-family residential Yerkes 187,353 part commercial, none part multi-family residential Parcel Seven (13.586 acres taken) State King 39,500 single family none residential Wakeland 65,000 multi-family 10,798 residential Potts 82,000 low to medium 7,000 density residential Landowner Yerkes 225,790 multi-family 22,000 residential Boucher 297,000 multi-family 25,000 residential Follett 302,000 multi-family 30,000 residential Parcel One (.792 acres taken) State Dirkson 13,450 multi-family none residential Landowner McCracken 22,425 multi-family none residential Boucher 29,300 partly commercial, none partly multi-family residential Follett 34,500 commercial none McCracken's appraisal was performed for the highway department, but his value testimony was submitted into evidence by the landowner. [3] The parties disputed the feasibility and cost to the owners themselves of constructing a road suitable to support commercial development of the tract. None of the appraisals submitted by the landowners, however, deducted from the value of the property the cost of extending paved access from the old terminus of Geist to its current intersection with the Parks Highway, a distance of over one-half mile. The superior court included no mention of such an alternative in its findings or opinion. It is our conclusion therefore that no value of the property attributable to such potential privately developed commercial access was incorporated in the superior court's determination of just compensation for the tracts. [4] U.S.Const. amend. V; Alaska Const. art. I, § 18. [5] Alaska R.Civ.P. 52(a); Alaska Foods, Inc. v. American Mfr's Mut. Ins. Co., 482 P.2d 842, 843 (Alaska 1971). [6] The state cites Alsop v. State, 586 P.2d 1236 (Alaska 1978), for the proposition that an overall plan's scope extends beyond the technical limits of a project. That case concerned a subsequent decrease in value to nearby lands from the elimination of access to the Seward Highway, due to a later elimination of an intersection that had actually been constructed according to the original plan for that highway. Furthermore, the complaining parties had relied on the availability of access created by the original intersection in settling a condemnation award for the portion of land taken for the original intersection, and in developing their property for commercial use as well. This court held that upon proof of this reliance, the parties would be entitled to compensation for the elimination of the intersection as a separate taking, without reference to AS 34.60.120(3). [7] One of the appraisals for parcel four assigns the same per acre value for just compensation as was used in another appraisal, performed by the same appraiser for the landowner for a merger proposal at around the time of the taking. This latter merger appraisal listed as an assumption the existence of the Parks Highway Geist Road intersection in figuring the value. However, the amount awarded by the court for parcel four was less than 60% of the figure for just compensation in this condemnation appraisal. All other appraisals submitted by the landowners for parcels four and seven refer only to the general expectancy of the Geist Road extension without regard to the Parks Highway. Thus, the state's argument that the higher values in the landowner appraisals for these tracts, and thus those in the court's judgment, were largely due to the intersection lacks support in the record. [8] See also United States v. Reynolds, 397 U.S. 14, 21, 90 S.Ct. 803, 807, 25 L.Ed.2d 12, 18 (1970) (to be within the "scope of the project," the land need not be named or delineated in the original scheme, but a probable need for it must have become evident in the course of planning or original construction). [9] A legal error not based on a constitutional claim is harmless if it can be said with fair assurance, without stripping the erroneous action from the entire evidence, that the finder of fact was not substantially swayed or affected by the error. Love v. State, 457 P.2d 622, 630-31 (Alaska 1969). [10] The amount determined for just compensation in this appraisal equalled the amount originally offered by the state to the landowner for parcel one. [11] When the state moved to strike one appraisal of parcel one, because it considered enhancement in value from the Geist Road extension, the court denied the motion, stating that that fact went to the weight, not the relevancy, of the evidence. [12] The state contends that the judgment as to these parcels is "excessive as a matter of law" as well, but never argues or defines this point further. The state does not argue that the judgment for parcel one was against the substantial weight of the evidence. [13] In Babinec v. State, 512 P.2d 563, 570 (Alaska 1973), we stated: The central objective in eminent domain proceedings such as the one before us is the determination of just compensation for the property condemned. Achievement of this goal must not be deterred by rigid evidentiary rules or technical formulas. As the Supreme Court of Hawaii observed in Territory of Hawaii v. Adelmeyer [45 Haw. 144], 363 P.2d 979, 985 (1961): `... [I]n partial taking cases, no rigid rules can be prescribed. The facts and circumstances of each case must be considered to determine the applicable formula... . "The rules for determining value of land taken by the condemnation cannot, from the nature of the case, be inflexible. In each case just compensation is the goal; and where rigid application of even a settled rule will produce injustice it must be departed from so far as made necessary by the circumstances of the case... ."' [citation omitted] [footnote integrated into text] See also Ketchikan Cold Storage Co. v. State, 491 P.2d 143, 151 (Alaska 1971), where we stated: The appraisal of property is not an exact science. It requires a complex balancing of the various principles and techniques which are utilized in reaching the final estimate of value. [14] Alaska R.Civ.P. 43(g)(3) provided: Exclusion of Witnesses from Courtroom. At the request of any party, the court may exclude from the courtroom any witness of the adverse party not at the time under examination, so that he may not hear the testimony of other witnesses. Although Civil Rule 43 was in effect at the time of the trial, this rule has since been rescinded by Supreme Court Order 366, effective August 1, 1979. [15] This is clearly revealed by the following exchange from the transcript, which immediately followed the state's request for invocation of the exclusionary rule: THE COURT: "As far as I am concerned, anyone that's testifying as an expert witness in a case can come in and listen to other witnesses testify. Now, I'll waive the exclusionary rule to that for everyone. That's not talking about the facts in the case, you're going to have to get hypothetical opinions and say, `Here's what witness so-and-so said and I want to know what you think about that'. They might as well come in and hear what Mr. so-and-so testified, save everybody time." MR. SATTERBERG [for the state]: "Okay, we can do that then." THE COURT: "Any expert witness can come in and hear the testimony of any other witness expert witness throughout the trial." MR. WHITING [for the landowners]: "Okay." MR. SATTERBERG: "Okay." [16] See generally Annot., 85 A.L.R.2d 478 (1962). [17] McCracken was stricken as an appraisal witness for parcels four and seven, because his appraisals for these parcels had not been prepared in time for the state to have an opportunity for discovery concerning their content. Prior to the discussion between McCracken and the court to which the state objects, however, the court had ruled that McCracken could testify as to any matters besides the appraisal of the above parcels. [18] Follett also appeared to change his opinion of highest and best use for parcel one at trial, from "speculative investment" to "commercial," on the basis that in his written appraisal he had not considered the possibility that the owners themselves could extend Geist Road to create commercial access to the parcel. Like Follett, the court concluded in its opinion that parcel one's highest and best use at the time of taking was for commercial development. However, the court adopted a value for just compensation for the parcel of $20,000, far less than the figure of $34,500 contained in Follett's written appraisal, a figure which he did not change at trial. [19] The following evidence also supports a conclusion that the land taken was worth more than the values arrived at in the state's appraisals: a. Location. The land abuts the south property line of the University of Alaska and lies between the development of the University West subdivision and the University. It lies between the end of Geist Road (prior to extension) and the point where the Chena Pump and Chena Ridge Roads meet and connect with the west entrance to the University and the Nenana Highway (prior to the Parks Highway project). It is centrally located between the developing areas of Chena Ridge, Chena Pump, College Road, and the Airport. b. Testimony by one of the original purchasers of the land that in the early 1960's the owners planned for commercial and multi-family residential use, in anticipation of a Geist Road extension to the Nenana Highway and the general growth in the areas. Two other officers of the landowner corporations also testified that the property closest to the University was being held for commercial development and the remainder for multi-family residential use in the early 1970's. A 1969 architectural drawing prepared for the landowners shows planned development of parcels one and four as commercial, and parcel seven as multi-residential. A planning document prepared by the state highway department in 1968 projects that parcels one and four would be used for a shopping center by 1984. A 1964 highway department document gives "authority to proceed" for the extension of Geist Road to the proposed site of the Parks Highway. Another highway department document prepared and released to the public in 1962 also shows this project. c. Other testimony regarding the development potential of the property. A Fairbanks real estate consultant testified that the northern portions of parcels four and one definitely had commercial potential in the early 1970's due to the number of people in the area and lack of commercial enterprises. A prominent developer of commercial property agreed with this evaluation. d. Importance of utilities. The superior court stated in its opinion that availability of utilities is more significant in valuation than the location of highways, since if sewer and water are not available, the property is limited to low-density residential development. In its opinion, the court also criticized the state's appraisals for arriving at a value too low to reflect the ready availability of utilities to the property. The court received direct testimony from another of the landowners' appraisers, Yerkes, that utilities were an extremely important consideration, as evidenced by the contrast between two existing subdivisions in the neighborhood. One, built prior to availability of utilities, had low-density development, and the other, built with utilities available, was developed much more densely. e. Sale by the landowners of 33 acres of land adjoining parcels four and seven to Teal Development Corporation prior to the condemnation. This sale was used by the state's appraisers as a comparable sale. It was sold in exchange for a price of $5,000 per acre, plus an option to purchase a four acre portion next to parcels four and one at the planned intersection of Geist and the Parks Highway. One of the landowners testified that the effective price paid for the total acreage approximated $15,000 per acre, because the option on the parcel at the future intersection was for a price much lower than its value as a commercial piece of ground. He further testified that the sale was made to Teal because Teal's development of the sold tract would increase the value of the remaining land, consisting of parcels four and seven. This price did not include any pre-paid assessments for utilities. The $15,000 per acre figure is identical to what the court awarded for parcel seven and $3,000 per acre less than its award for parcel four. f. Discredit of at least one of the state's appraisals. Evidence was introduced that the King appraisal, the lowest valuation submitted by the state, was considered inferior by the highway department's reviewers. [20] The only certified appraiser who concluded the parcel's highest and best use at the time of the taking was commercial was Richard Follett, who valued the parcel at $34,500. The state's single appraisal witness on this parcel concluded that its highest and best use was multi-family residential, and arrived at a valuation of $13,450 for just compensation. McCracken performed an appraisal of parcel one originally for the state, but it was introduced into evidence by the landowners. This appraisal also concluded the parcel's highest and best use was multi-family residential, but valued the taking at $22,425. McCracken testified that his valuation would have been equivalent to about $86,250 if the Geist Road extension were considered a given fact. Another appraiser for the landowners considered highest and best use to be a mixture of commercial and multi-family residential development and valued the taking at $29,300. The only other witness stating an opinion on the value of the property was Paul Gavora, a developer, who testified the land was worth an amount per square foot equal to an award of about $35,000 for the taken portion. [21] Alaska R.Civ.P. 60(b) provides: Mistakes Inadvertence Excusable Neglect Newly Discovered Evidence Fraud Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant not personally served, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis and audita querela are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. [22] 11 C. Wright & A. Miller, Federal Practice and Procedure § 2870, at 256-57 (1973); see also H.K. Porter Co., Inc. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118 (6th Cir.1976); Lockwood v. Bowles, 46 F.R.D. 625, 632-33 (D.D.C. 1969). [23] In Allen, this court held where a written default judgment drafted by a party and counsel differed from the court's oral entry of default in that it named both plaintiffs rather than one as subject to the judgment, it did not necessarily constitute fraud upon the court. Cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 [64 S.Ct. 997, 88 L.Ed. 1250] 88 L.Ed. 1250 (1944) (attorney wrote and had printed in a trade journal an article praising his client's device as a remarkable advance, under the name of an expert in the field. The attorney then used the fraudulent article to obtain a patent for his client and to defend it in court. The Supreme Court characterized this activity as a "deliberately planned and carefully executed scheme to defraud not only the Patent Office but the ... [c]ourt... ." 322 U.S. at 245 [64 S.Ct. at 1000] 88 L.Ed. at 1255); Mallonee v. Grow, 502 P.2d 432, 438-39 (Alaska 1972) (where party and counsel filed a writ of execution which overstated the amount due from a debtor and designated property subject to the execution which did not belong to the debtor, fraud upon the court was committed). [24] For motions under Civil Rule 60(b) based on a mistake of law, this court has interpreted "reasonable time" to mean within the time for taking an appeal, i.e., 30 days from the entry of final judgment. Pearson v. Bachner, 503 P.2d 1401, 1402 (Alaska 1972) (two and one-half year delay); Alaska Truck Transport, Inc. v. Berman Packing Co., 469 P.2d 697, 699-700 (Alaska 1970) (11 months delay). However, where perjury or some greater fraud is the basis for the motion, we believe a longer period within which to bring the motion may be in order, at least where the other party has not changed its position in reliance upon the order in the interim. The purpose of Civil Rule 60(b) is to strike a proper balance between bringing litigation to an end and correcting injustice. Id. at 699. [25] Alaska R.Civ.P. 72(k) reads: Costs. Costs and attorney's fees incurred by the defendant shall not be assessed against the plaintiff, unless: (1) the taking of the property is denied, or (2) the award of the court was at least ten (10) percent larger than the amount deposited by the condemning authority or the allowance of the master from which an appeal was taken, or (3) the action was dismissed under the provisions of subdivision (i) of this rule, or (4) allowance of costs and attorney's fees appears necessary to achieve a just and adequate compensation of the owner. Attorney's fees allowed under this subdivision shall be commensurate with the time committed by the attorney to the case throughout the entire proceedings. [26] See note 25 supra. [27] Alaska R.Admin.P. 9(c) provides: Expert Witnesses. A witness called to testify as an expert witness shall receive additional compensation to be fixed by the judge with reference to the value of the time employed and the degree of learning or skill required; but such additional compensation shall not exceed $25.00 per hour while so employed and testifying, except as otherwise provided in these rules. No more than 3 expert witnesses shall be allowed to testify on each side as to the same issue in any given case, unless the judge trying the case, in his discretion, permits an additional number of witnesses to testify as experts. [emphasis added] [28] This provision was enacted in 1962, and has never been amended (ch. 101, § 13.21, SLA 1962). [29] The statute setting the general legal rate of interest in Alaska, AS 45.45.010(a), was amended to increase the rate of interest from six percent to eight percent in 1976 (ch. 159, § 1, SLA 1976). The statute providing for the rate of interest for judgments in general, AS 09.30.070, was amended to increase the interest rate from six percent to eight percent in 1969 (ch. 69, § 1, SLA 1969). [30] This provision was enacted along with the provision applying to declarations of taking in 1962 (ch. 101, § 13.10, SLA 1962). The landowners note also that AS 09.50.280 awards interest at the "legal" rate specified in AS 45.45.010(a), for judgments rendered against the state in contract and tort actions. This provision also dates from 1962 (ch. 101, § 26.04, SLA 1962). [31] Under a declaration of taking, title and right to possession pass to the state immediately upon filing and depositing an amount for just compensation, while under a complaint for condemnation this "taking" does not occur until judgment is entered by the court. Arco Pipeline Co. v. 3.60 Acres, 539 P.2d 64, 70 (Alaska 1975). A rational explanation for assessing a lower rate of interest against the state prior to judgment in cases where it gains control and use of the property at an earlier time does not occur to us. Furthermore, interest is only assessed on the amount of the award in excess of what was deposited by the state at the time of the declaration of taking. Stewart & Grindle v. State, 524 P.2d 1242, 1248 n. 21 (Alaska 1974); Russian Orthodox Greek Catholic Church v. Alaska State Housing Auth., 498 P.2d 737, 741-42 (Alaska 1972). Thus, the State is encouraged to use the more onerous declaration of taking procedure and to deposit small sums into court. The irony in this is that the reason no interest is allowed on the deposited amount is because the condemnee is free to withdraw that money and use it including depositing it in a bank account which could legally earn up to eight percent interest under AS 45.45.010(a). [32] The landowners suggest in their brief on appeal that awarding a lower rate of interest on judgments in eminent domain cases than for other judgments may run afoul of the constitutional requirement of "just compensation." We do not reach this issue because it was not argued at the trial level. See Von Brimer v. Whirlpool Corp., 536 F.2d 838, 848 (9th Cir.1976); Brown v. Wood, 575 P.2d 760, 766 (Alaska 1978), modified, 592 P.2d 1250 (Alaska 1979); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2716, at 435-36 (1973). [33] But cf. Rand v. B.G. Pride Realty, 360 A.2d 519, 523 n. 4 (Me. 1976). In that case, the court concluded that it would continue to use the legal rate of interest specified in a statute that was repealed shortly before the judgment, in assessing pre-judgment interest, on the grounds that the failure to replace the repealed statute was inadvertent, and that long-standing use of the rate rendered it appropriate to adopt as a judicial rule.	{ "pile_set_name": "FreeLaw" }
442 F.2d 611 UNITED STATES of America ex rel. Otis CHESTNUT et al., Appellants,v.CRIMINAL COURT OF the CITY OF NEW YORK, George F. McGrath,Commissioner ofCorrections of the City of NewYork, and Frank S. Hogan, DistrictAttorney ofNew York County, Appellees. No. 717, Docket 35650. United States Court of Appeals, Second Circuit. Argued April 13, 1971.Decided May 5, 1971. Basil R. Pollitt, New York City (Sanford M. Katz, New York City, of counsel), for appellants. David Otis Fuller, Jr., Asst. Dist. Atty. (Frank S. Hogan, Dist. Atty. New York County, Michael R. Juviler, Asst. Dist. Atty., of counsel), for appellees. Before WATERMAN, SMITH and KAUFMAN, Circuit Judges. IRVING R. KAUFMAN, Circuit Judge: 1 Petitioners, appealing from the denial of a writ of habeas corpus, have fashioned a wide-ranging challenge to the constitutionality of the New York County (Manhattan) grand jury selection system as it operated in 1964. 2 Appellants were prosecuted and convicted for criminal contempt upon the recommendation of the Second August 1964 Grand Jury, for refusing to answer questions put to them by that grand jury. Their primary defense at trial was that the jury was unrepresentative of the population of the local community in several respects, and hence that the prosecution denied them due process and equal protection of the law. Extensive factual hearings were conducted concerning ground jury selection practices. Petitioners' convictions in the New York City Criminal Court were unanimously affirmed by the New York Court of Appeals on the ground tht the departures from perfect representativeness demonstrated below did not result from unconstitutional exclusionary practices. People v. Chestnut, 26 N.Y.2d 481, 311 N.Y.S.2d 853, 260 N.E.2d 501 (1970) (Fuld, Chief Judge). 3 Appellants' habeas corpus petition raised substantially the same claim of unrepresentativeness. On October 5, 1970, Judge Tyler denied the petition without conducting a hearing. We affirm. I. 4 The grand jury under attack was convened to investigate serious civil disturbances that had broken out in Harlem during the preceding month. Petitioners were called to testify and granted immunity from any prosecution related to the occurrences under investigation. The grand jury requested simple 'yes' or 'no' answers to a series of questions concerning three targets of the investigation and suspected plans to instigate rioting by sniper fire. Two of the five petitioners requested a judicial ruling on the relevance and legality of the questions. A Justice of the Supreme Court, New York County, declined the request on the ground that petitioners were ably represented by counsel. Petitioners then refused to answer the questions, and the grand jury directed the district attorney to file informations charging criminal contempt. These informations were later filed in the Supreme Court. 5 After an unsuccessful attempt to remove the prosecution to the federal courts, see Chestnut v. New York, 370 F.2d 1 (2d Cir. 1966), cert. denied, 386 U.S. 1009, 87 S.Ct. 1355, 18 L.Ed.2d 439 (1967), a hearing was held by Justice Murtagh of the Supreme Court on petitioners' charge that the grand jury selection process as administered in Manhattan resulted in the unconstitutional exclusion of significant portions of the population qualified for jury service.1 The evidence developed at that hearing disclosed that grand jury service, unlike petit jury service, was entirely voluntary. Citizens were invited rather than summoned to participate. Solicitations to place one's name on the grand jury list, which in 1964 numbered approximately 2,000, were periodically mailed to persons selected at random from the county petit jury list. In 1964, however, no grand jury invitations were sent to potential petit jurors under 35 years of age, or over 65. No more than a third of the addressees responded to these letters, and many of those who did answer affirmatively later withdrew upon learning that, contrary to their assumption, grand jury service was not compulsory. The remaining prospective jurors were interviewed by a Deputy County Clerk, and an investigation was made to uncover any prior criminal record, outstanding judgments or pending litigation.2 Although former Judiciary Law 596(3), not repealed until 1967, required that grand jurors must own property worth at least $250, the jury clerks testified that they had ceased to enforce this requirement no later than 1960 on the assumption that anyone with clothes on his back had assets of over $250. It was, however, the practice to exclude welfare recipients from both grand and petit jury service.3 The names of persons accepted as grand jurors were then added to the grand jury list in the next annual cumulation. 6 The hearing also disclosed that the grand juror selection system resulted in the underrepresentation, when compared with the general population, of certain ethnic and economic groups. Thus, blacks comprised 1.65% Of persons on the grand juror list from which the Second August 1964 Grand Jury was selected, although at the time approximately 24% Of the total population of New York County between 21 and 70 years of age was black.4 Puerto Ricans comprised 0.3% Of the jury list, comparted with approximately 12% Of the population. 'Blue collar workers'-- a loose classification based on the petitioners' own statistical analysis-- comprised 1.2%5 compared with 47% Of the New York County labor force. II. 7 Petitioners' argument that they were denied due process and equal protection by the mere unrepresentative composition of the 1964 grand jury list may be intuitively appealing in its simplicity but we find it logically and legally untenable. Such an unrepresentative body, appellants assert, cannot fulfill the democratic ideal of interposing the judgment of neutral laymen representing a cross-section of the local community between the decision of a state's prosecutor and the actual initiation of a criminal proceeding. Few will deny that such an ideal underlies the modern institution of the grand jury. Recent legislative developments in the selection of both federal and New York grand jurors reflect the vitality of the goals that petitioners articulate.6 Federal courts, in the exercise of their supervisory powers over federal jury selection, have repeatedly struck down systems which arbitrarily exclude significant sectors of the local community. E.g., Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) (exclusion of day laborers) (petit jury); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946) (exclusion of women); United States v. Zirpolo, Nos. 18, 137-42 (3d Cir. Dec. 3, 1970) (under-representation of women). Sitting as a federal court reviewing a state system, however, we are not at liberty to impose upon the State of New York our own views on which method we believe to be the ideal for grand jury selection. Our power is limited to determining whether the particular selection method chosen by New York and under review by us violated petitioners' rights to due process and equal protection either because they were called to testify before a constitutionally unrepresentative grand jury or because their subsequent prosecution was initiated by one.7 III. 8 Addressing ourselves first to the due process claim, we note at the outset that the Supreme Court has repeatedly held that a state may, without violating the Constitution, dispense with a grand jury altogether and initiate criminal prosecutions solely upon the prosecutor's unilateral decision to file an information. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884); Kennedy v. Walker, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715 (1949); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).8 9 We do not, however, rest our decision on this ground. Cf. Beck v. Washington, supra, 369 U.S. at 546, 82 S.Ct. 955 (assuming arguendo that a state which resorts to the grand jury process must furnish an impartial grand jury). The grand jury not only may check a prosecutor's decision to proceed against a defendant, but may undertake investigations and make formal accusations on its own initiative. To the extent that a grand jury once utilized not only vetoes prosecutions, but initiates them, a constitutional requirement that the jury be capable of impartiality would not be inconsistent with the principle enunciated above, that the state was not under a constitutional mandate to utilize a grand jury system in the first instance. The petitioners have nonetheless failed to demonstrate that the Second August 1964 Grand Jury was unable to act fairly and impartially. Petitioners speculate that persons who volunteer for grand jury service commonly possess authoritarian personality traits which predispose them to pay undue heed to the prosecutor and to initiate proceedings against persons who may strike them as suspicious or 'criminal-type' individuals. But simple willingness to render public service may sufficiently explain a citizen's propensity to volunteer, and petitioners have presented no concrete evidence to support their darker conjecture. 10 As to the ethnic and economic imbalances described above, petitioners offer even less reason to suspect any resultant partiality. There is no apparent ground for assuming that a grand jury deficient in the various underrepresented groups would be unduly sympathetic to the prosecutor. That Chestnut (alone among the five petitioners) was a Negro, or that all the petitioners were under 35 years of age, is relevant only to the over-simplistic and unsupported assumption that grand jurors predominantly of one race or those over 35, cannot provide a fundamentally fair hearing for persons of another race or generation. See Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947) ('we are not ready to assume that * * * differences (in occupation) degenerate into a hostility such that one cannot expect justice at the hands of occupations and groups other than his own'); Note, The Defendants' Challenge to a Racial Criterion in Jury Selection, 74 Yale L.J. 918, 921-22 (1965) (suggesting that because of psychological and other factors, minority-group jurors have been known also to reflect harshness against their own group). To be sure, any partiality that may be associated with the exclusion of a given group will not easily be demonstrated. Yet it is not the office of a federal court to overthrow a state's juror selection method on the basis of mere speculation and hypothesis. The Supreme Court has recently reaffirmed the importance of objective and reliable proof of partiality as a necessary premise of federal judicial interference with state jury selection. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).9 11 In any event, we are of the view that the appellants' argument on this score is without force. Whatever speculative effect the volunteer system may have had on the grand jury's sense of fairness has little weight when compared with the rational conclusion of New York County officials that volunteer grand jurors would perform their obligations-- including the duty to refuse an indictment in appropriate cases-- more conscientiously than jurors suffering the considerable inconvenience of jury service pursuant to a compulsory summons. Jurors over 35 may reasonably be expected to draw upon a greater fund of experience because of their previous service on petit juries and their maturity, than those under 35. And welfare recipients, who receive their sustenance from the state, might be viewed as potentially too timid to disagree with the prosecuting attorney, an important spokesman of the state from which they receive substantial benefits.10 IV. 12 Unlike the due process clause, the equal protection clause of the Fourteenth Amendment unquestionably limits the range of methods New York may adopt for choosing grand jurors. That a state could dispense with grand juries altogether does not, of course, mean that if it adopts that mechanism the state may use it in an arbitrary and discriminatory manner. 13 But petitioners do not and cannot claim that New York singled them out for special or discriminatory treatment because of their race or any other characteristic, nor do they charge invidious discrimination or arbitrary or irrational methods in the selection process of grand jurors. The Second August 1964 Grand Jury was selected, so far as the record reveals, exactly as was every other grand jury that sat in New York County in 1964. Cf. Fay v. New York, supra, 332 U.S. at 285-286, 67 S.Ct. 1613 (special petit juror list for publicized cases); Beck v. Washington, supra, 369 U.S. at 549-550, 82 S.Ct. 955 (denial of procedural safeguards before grand jury that were provided in other cases); Collins v. Walker, 329 F.2d 100 (5th Cir.), cert. denied, 379 U.S. 901, 85 S.Ct. 189, 13 L.Ed.2d 175 (1964) (petit jury chosen with respect to defendant's race). 14 Of course, a defendant is denied equal protection if he is proceeded against by a grand jury from which members of his own race have been arbitrarily or invidiously excluded. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881); Norris v. Alabama, 294 U.S. 587, 55 SlCt. 579, 79 L.ed. 1074 (1935); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 886 (1954). We hardly need repeat again that our constitutional scheme absolutely bars invidious racial discrimination by the state. Whatever significance statistics indicating underrepresentation of a racial group may have in other circumstances, see Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), petitioners do not urge that the relative paucity of Negroes on the 1964 grand jury list represented purposeful and intentional racial discrimination.11 They do not deny that the racial imbalance of the list was not the result of 'an exclusionary device,' Hoyt v. Florida, 368 U.S. 57, 61, 82 S.Ct. 159, 7 L.Ed. 118 (1961), but was due to New York County's system of voluntary grand jury service. Compare, e.g., Fay v. New York, supra (effect of educational and other qualifications); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (effect of nonracially motivated use of peremptory challenge). Nor is it charged that the grand jury selection was infected by private racial discrimination. Cf. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2 Cir. 1968); Kennedy Park Homes Ass'n v. City of Lackawanna, 436 F.2d 108 (2 Cir. 1970), cert. den., 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971).12 In this respect there is little we can add to the opinion of Chief Judge Fuld for the unanimous New York Court of Appeals. 26 N.Y.2d 481, 311 N.Y.S.2d 853, 260 N.E.2d 501 (1970). 15 Conceding the absence of purposeful discrimination, petitioners rely on instances when this court and others have required states to justify policies which, regardless of subjective intent, have substantial adverse consequences for racial minorities which have not been suffered by the community at large. E.g., Norwalk CORE v. Norwalk Redevelopment Agency, supra; Kennedy Park Homes Ass'n v. City of Lackawanna, supra. Cf. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950) (opinion of Reed, J.); Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). Assuming the propriety of demanding a similar justification in this case, a point we need not decide, the presumably greater conscientiousness of volunteer jurors as compared to jurors serving under compulsion of a summons-- and nothing presented has rebutted this-- sufficiently justifies New York's voluntary selection technique. 16 Similarly, as we have stated, in excluding jurors younger than 35 years of age, New York County presumably chose, as it may, to take advantage of the greater experiences of older persons with petit juries and life's vicissitudes. Petitioners' claim that an 'entire generation' of the New York County population was thereby eliminated is hyperbole. Moreover, petitioners concede, as they must, the propriety of some minimum age limit. We need not suggest that any minimum, no matter how high, is permissible, to conclude that nothing in the Constitution dictates that New York must select the traditional third multiple of seven as an age floor on jury service, in preference to the fifth. 17 None of the petitioners is a Puerto Rican, a 'blue collar worker,' a welfare recipient or the owner of assets valued at less than $250, and they offer no plausible theory to explain how they were denied equal protection by the exclusion or underrepresentation of these groups. See Fay v. New York, supra, 332 U.S. at 287, 67 S.Ct. 1613; United States v. Leonetti, 291 F.Supp. 461, 473 n. 3 (S.D.N.Y.1968), approved in United States v. Bennett, 409 F.2d 888, 892-893 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed. 101 (1969). The underrepresentation of Puerto Ricans and 'blue collar workers' is similar, in origin and justification, to the relative paucity of black grand jurors. And, as we have indicated, the exclusion of persons receiving welfare benefits can be supported as a precaution against over-timidity toward the authority supporting them, somewhat analogous to New York's statutory exclusion of government employees, Judiciary Law 598. In any case we doubt whether this requirement had any perceptible effect upon the composition of the 1964 grand jury list in light of the uncontested fact that 90 percent of welfare recipients in that year were either disabled, over 65 years of age, receiving medical assistance, or mothers and children in homes that lacked a father. Finally, although no sufficient justification for the since repealed $250 property requirement is apparent, see Chestnut v. New York, 370 F.2d 1, 7 n. 13 (2d Cir. 1966), cert. denied,386 U.S. 1009, 87 S.Ct. 1355, 18 L.Ed.2d 439 (1967); Samuels v. Mackell,288 F.Supp. 348, 356 (S.D.N.Y.1968) (3-judge court), aff'd on other grounds, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); United States ex rel. Epton v. Nenna, 318 F.Supp. 899 (S.D.N.Y.1970), appeal pending (2d Cir. No. 35559 September 1970 Term), it ceased to have practical effect in 1960 when the New York County jury officials adopted the eminently reasonable assumption that any potential juror wearing a suit of clothes was worth at least that much. Petitioners claim that a majority of the names on the 1964 grand jury list was added before 1960. But even if this is so, we cannot believe that such a minimal property threshold had any significant effect upon the makeup of either the 1960 or 1964 list. This imperfection in the selection system, if such it was, could surely be tolerated as de minimis. 18 In upholding the district court's denial of relief, it is unnecessary for us to decide that the Second August 1964 Grand Jury, New York County, was chosen in the manner best calculated to further the democratic values embodied in the grand jury institution. We decide only that it was not chosen in a manner which denied petitioners due process or the equal protection of the laws. On that basis the judgment below is affirmed. 1 The hearing was held upon the petitioner's motion that the earlier grand of approval by the Supreme Court to the filing of the contempt informations, be revoked. See N.Y.City Crim.Ct.Act 42 2 In greater detail, the selection process entails the following: New York County jurors must be residents of the county, must not have been convicted of a felony or a misdemeanor involving moral turpitude, and must be 'intelligent; of sound mind and good character; well informed; (and) able to read and write the English language understandingly.' Judiciary Law 596. Exemptions from jury service are available for women, persons over 70, and such professions as clergymen, physicians, attorneys, policemen and members of the armed forces. Id. 599. Prospective grand jurors are furnished with a questionnaire which elicits information concerning disqualifications and exemptions from jury service. The form of the questionnaire is prescribed by Rule 17 of the Rules of the Jury System in the City of New York, promulgated by the Appellate Divisions, First and Second Departments pursuant to the authority vested in them by Judiciary Law 609. The Deputy County Clerk then conducts a personal interview with prospecitve grand jurors. At that time he reviews the completed questionnaire with them. The Deputy Clerk may thereafter remove the names of prospective jurors who, based on the questionnaire and interview, he concludes are disqualified or have a valid exemption from service, noting briefly the ground for removal. The nemes of jurors not removed are then forwarded to the local police and their fingerprints sent to the Bureau of Criminal Identification in Albany, for a prior criminal record search. A credit check is also made to determine the existence of outstanding judgments or liens. A juror is disqualified on this ground only if the 'flagrant' nature or large number of such outstanding obligations strongly indicates his unreliability. The list of potential grand jurors remaining after the interview and investigation process is then forwarded to the County Jury Board, consisting of the Presiding Justice of the Appellate Division or his designee from the Appellate Division bench; two Supreme Court justices designated by the Appellate Division; and the County Clerk, who acts as the Board's secretary. Judiciary Law 591. The Board then draws up the annual grand jury list for the following year. During the years 1960-1964 the Board rejected no more than 15 of the approximately 200 new names submitted to it each year for addition to the grand jury list. See generally id. 609 3 This practice, like the exclusion of potential jurors who were under 35 years of age, had no statutory basis, and was subsequently terminated 4 Negroes comprised 14% Of the population between 35 and 65 with at least a high school education. All population statistics were based upon the 1960 Census 5 Occupational statistics were gathered from the 1966 cumulation of the grand jury list 6 With respect to federal jurors, see, e.g., Civil Rights Act of 1957, P.L. 85-315, 152, 71 Stat. 638 (uniform standard of qualification for federal jurors); Jury Selection and Service Act of 1968, P.L. 90-274, 82 Stat. 53 (random selection of grand and petit jurors from voter registration lists). With respect to New York State jurors, see Act of March 20, 1940, ch. 202, 1 (eliminating differences in investigations of regular petit jurors and special jurors); Act of July 15, 1965, ch. 778, 3 (elimination of 'blue ribbon' special juries); Act of March 7, 1967, ch. 49 (elimination of $250 property requirement); Act of April 24, 1967 (raising maximum age of jurors from 70 to 75) 7 The district court did not consider all the petitioners' claims on the ground that the grand jury did not indict petitioners, but merely questioned them and upon their refusal to answer acted as a 'complaining witness.' The court concluded that the repressentativeness of the grand jury was therefore of little moment Agreeing with the premise that the grand jury assumes its greatest responsibility in deciding whether to indict, we nevertheless hold that petitioners may challenge the composition of the 1964 grand jury list. The grand jury's inquisitorial function offers many opportunities for the use of discretion. Here, for example, the decisions to question, to grant immunity, to phrase questions in yes-or-no fashion, and finally to initiate punishment for contempt, affected substantial interests of the petitioners and were neither inevitable nor ministerial. In particular, we note that the grand jury might have chosen to proceed against the recalcitrant petitioners under New York Judiciary Law 750(A)(5), 751(1), providing a statutory maximum penalty of 30 days' imprisonment, imposed by a Supreme Court justice after an express warning to the witness and after a final opportunity to retract the decision not to testify. Instead, the grand jury ordered the filing of informations charging criminal contempt under former Penal Law 600(6), punishable by up to a year's imprisonment, id. 1937. 8 It may be noted that the absence of a constitutional mandate compelling the states to proceed only by grand jury indictment is some indication that the grand jury's exercise of discretion is not a 'fundamental interest,' possibly justifying a strict standard of review. See Development in the Law-Equal Protection, 82 Harv.L.Rev. 1065, 1127-1131 (1969) 9 Witherspoon, a trial jury from which potential jurors with scruples against the death penalty had been excluded was challenged as conviction-prone. Although the typothesis was supported by two empirical studies, the Court refused to accept the petitioner's hypothesis on the ground that the studies were 'too tentative and fragmentary.' 391 U.S. at 517, 88 C.St. 1770. Petitioners here have presented no factual data of any sort, tentative or otherwise, to support their suspicion of partiality A statistically convincing demonstration of bias is, of course, an entirely different matter from the use of statistics as evidence of the state's intentional discrimination against a given group of potential jurors. See Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); p. 617 infra. 10 In any case, the exclusion of welfare recipients had no perceptible impact on the composition of the grand jury list. See p. 617. As for the $250 property qualification, see pp. 617-618 infra 11 Nor can petitioners point to any history of purposeful discrimination in the past which might cast the existing departures from perfect representativeness in a different light. Cf. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) 12 One theory advanced to demonstrate that Chestnut was denied equal protection because of his race is premised on the proposition that the exclusion of a racial group from jury service may impose an official stamp of inferiority on persons of the same race called before the jury as well as on the excluded potential jurors. Cf. Strauder v. West Virginia, 100 U.S. 303, 307-308, 25 L.Ed. 664 (1880); Swain v. Alabama, 380 U.S. 202, 238, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Goldberg, J., dissenting). But such underrepresentation of blacks as existed here, which resulted solely from their relatively lower propensity to volunteer, could hardly have conveyed any message of inferiority. Of course in an appropriate case a litigant may raise the constitutional rights of others than himself, see, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). It is not suggested, however, that the excluded potential black jurors were without a remedy for any wrong the selection system may have caused them, see 18 U.SC. 243; Ex parte Virginia, 100 U.S. 339 (1880); 42 U.S.C. 1983; Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), which is the usual justification for permitting the assertion of jus tertii. See generally Note, The Defendant's Challenge to a Racial Criterion in Jury Selection, 74 Yale L.J. 919, 932-33; Sedler, Standing To Assert Constitutional Jus Tertii in the Supreme Court, 71, Yale L.J. 599 (1962). In any event, black potential jurors who failed to volunteer for service would have little claim that their exclusion denied them any constitutional right Thus the only plausible basis for Chestnut's equal protection claim is the possibility that a grand jury deficient in members of his race would deal with him differently than with prospective defendants or witnesses of other races. But this speculation has not been shown to be any more than that, see p. 615 supra.	{ "pile_set_name": "FreeLaw" }
ORIGINAL 03/04/2020 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0021 Cause No. DA 20-0021 IN THE MATTTER OF THE GUARDIANSHIP AND ORDER FOR EXTENSION CONSERVATORSHIP OF, A.M. M., Alleged Incapacitated Person. EXTENSION OF TIME TO FILE OPENING BRIEF Upon consideration ofPetitioner's Motion for Extension of Time to File Opening Brief, and good cause appearing: IT IS HEREBY ORDERED that Petitioner's Motion for 30 day Extension is GRANTED and Opening Brief is now due on April 15, 2020. DATED this day of March,202 1	{ "pile_set_name": "FreeLaw" }
218 F.Supp.2d 1094 (2002) Charles E. WOOD, Plaintiff, v. CROWN REDI-MIX, INC., d/b/a Crown Building Materials, Inc. and General Team and Truck Drivers, Helpers and Warehousemen, Local 90, Defendants. No. 4:01-CV-40127. United States District Court, S.D. Iowa, Central Division. August 29, 2002. 1095 1096 1097 Joseph L. Walsh, Hedberg, Owens & Hedberg, Des Moines, IA, Donna M. Schauer, Schauer Law Firm, Des Moines, IA, for plaintiff. Greg A. Naylor, Pingel & Templer, West Des Moines, IA, Andrea F. Hoeschen, Previant, Goldberg, Uelmen, et al., Milwaukee, WI, Paige E. Fiedler, Fiedler & Townsend, Johnston, IA, for defendants. RULING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTIONS TO STRIKE GRITZNER, District Judge. This matter is before the Court on two motions for summary judgment. Plaintiff, Charles E. Wood ("Wood"), filed a complaint against General Team and Truck Drivers, Helpers and Warehousemen, Local 90 ("the Union"), Robert E. Jackson (Secretary-Treasurer and Business Agent for the Union), and Frank "Huck" Thompson (Business Agent for the Union), on February 28, 2001, alleging disability discrimination under the ADA. On March 5, 2001, Wood filed a separate complaint against Crown Redi-Mix, Inc., d/b/a Crown Building Materials, Inc. ("Crown"), also alleging disability discrimination. On July 27, 2001, Judge Wolle ordered the two cases consolidated. On September 12, 2001, defendants Robert E. Jackson and 1098 Frank "Huck" Thompson were dismissed from the case. The remaining defendants, Crown and Teamsters Local 90, each moved for summary judgment on June 3, 2002. Arguments on the motions were heard on July 26, 2002. Crown was represented by attorney Greg Naylor, and the Union was represented by attorneys Andrea Hoeschen and Paige Fiedler. Attorney Joe Walsh argued in resistance to Crown's motion, and attorney Donna Schauer argued in resistance to the Union's motion. On July 29, 2002, Crown moved to strike the workers' compensation arbitration decision letter and report of Dr. Robert C. Jones, pursuant to Fed.R.Civ.P. 56(e). For the reasons discussed below, both motions for summary judgment are granted. Crown's motion to strike is denied. I. BACKGROUND Wood was hired at Crown in July 1997 as a ready-mix truck driver. Crown was a union company, and Wood was a member of a bargaining unit while employed at Crown. Teamsters Local 90 was the labor organization responsible for representing the bargaining unit during Wood's employment. During Wood's employment, a collective bargaining contract, negotiated by Teamsters Local 90, governed the terms and conditions of employment for members of the bargaining unit, including Wood. Some of the pertinent provisions of the collective bargaining agreement ("Agreement") include: Crown was not allowed to enter into any agreements or contracts with individual employees which conflicted with the Agreement;[1] Crown had the right to lay off employees and to make reasonable rules and regulations to govern the workforce; and bid jobs at Crown were awarded to the most senior, qualified employee interested in the job. On October 29, 1998, Wood suffered a work-related back injury while working when he slipped and fell into a hole partially covered with plywood. Wood's treating physician, Dr. Boulden, eventually proposed permanent restrictions on Wood which prohibited him from driving a ready-mix truck, lifting over 50 pounds, and from doing extensive bending, twisting, and lifting. Because Wood could no longer drive a ready-mix truck, an essential duty of every position at Crown,[2] he was terminated on March 29, 1999, ten days after he presented the permanent restrictions to his employer. After his termination, Wood filed a grievance with the Union. Thompson, the Union Business Agent, reviewed Wood's 1099 medical restrictions and, after inquiry, determined that at that time there were no open jobs which Wood could perform. Therefore, the Union concluded that Crown had not breached the Agreement and, as a result, declined to pursue Wood's grievance. On April 14, 1999, Wood filed a charge with the Iowa Civil Rights Commission and the EEOC claiming that he was disabled in his ability to "work, walk, and in the general activities of daily living", that Crown discriminated against him on the basis of physical disability when it terminated him, that he "believed the company could have accommodated [him], as they had with others", and that the Union discriminated against him on the basis of disability when it declined to pursue his grievance. On December 5, 2000, the EEOC notified Wood that it was unable to conclude that the information contained in Wood's charge established a violation of the statutes, and that it was also unable to certify that Crown and the Union were in compliance with the statutes. The EEOC also notified Wood of his right to sue under Title VII and/or the ADA. Viewing the facts in the light most favorable to Wood, as this Court must, the effects of Wood's purported disability are as follows: he is unable to walk more than one-half mile before resting and walks with a cane on occasion; he has numbness in his toes and the back of his left leg; his left knee is weak and collapses, and he has "drop foot" in his left leg; he is able to tie his shoes and do lawn care, but with some difficulty; he is able to help with household chores "as long as they don't require a lot of bending"; he would require assistance if furniture needed to be moved around the house; he is able to lift up to 50 pounds, and he has some difficulty at his current job when he has to lift 60-65 pounds; he does not have a handicapped parking sticker because he has "too much pride to apply for one"; and he has sexual dysfunction. Wood testified that he is currently employed as a truck driver for Brown Logistics, where he occasionally lifts up to 60-65 pounds, with some difficulty. Wood asserts that, while he can drive a truck, he has "recurring pain and must watch how [he] lift[s] things, the weight of the objects [he] lift[s], and how [he] turn[s] and bend[s]". Wood states that at his current position he is not required to do much lifting because the trucks are loaded with a forklift or crane. He has also had three other truck driving jobs in the interim: hauling Pella windows, driving for Chicago Tube & Iron as a rental driver, and driving for U.S.F. Dugan. II. STANDARD FOR SUMMARY JUDGMENT Defendant is entitled to 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 [defendant] is entitled to judgment as a matter of law". Fed.R.Civ.P. 56(c). To survive a properly-supported motion for summary judgment, Wood is required to go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial". Fed.R.Civ.P. 56(e). "All reasonable inferences of fact from the record are construed in the light most favorable to the party opposing summary judgment." Hughes v. 3M Retiree Med. Plan, 281 F.3d 786, 789-90 (8th Cir.2002). "If the party with the burden of proof at trial is unable to present evidence to establish an essential element of that party's claim, summary judgment on the claim is appropriate because `a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other 1100 facts immaterial'." St. Jude Med., Inc. v. Lifecare Intern., Inc., 250 F.3d 587, 595 (8th Cir.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Pony Computer, Inc. v. Equus Computer Sys. of Missouri, Inc., 162 F.3d 991, 997 (8th Cir. 1998) ("Summary judgment is appropriate where there is no independent evidence, other than [plaintiff's] unsubstantiated allegations."). The Eighth Circuit has cautioned that "summary judgment should seldom be used in employment discrimination cases". Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). "Although summary judgment is to be used sparingly in employment discrimination cases, it is appropriate where one party has failed to present evidence sufficient to create a jury question as to an essential element of its claim." Whitley v. Peer Review Sys., Inc., 221 F.3d 1053, 1055 (8th Cir.2000) (citations omitted); see also Kellogg v. Union Pac. R. Co., 233 F.3d 1083, 1086 (8th Cir.2000) (summary judgment is proper if the employee fails to establish any element of his prima facie ADA claim). III. LEGAL ANALYSIS Both defendants have moved for summary judgment on the grounds that Wood cannot establish a prima facie case of disability discrimination under the ADA. Wood has the initial burden to establish a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). To establish a prima facie case of disability discrimination under the ADA, Wood must prove all of the following elements: (1) that he is disabled under the ADA; (2) that he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) that he has suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination. E.g., Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113 (8th Cir.2001). Both defendants argue that Wood is not disabled within the meaning of the ADA. Under the ADA, "disability" means "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment". 42 U.S.C. § 12102(2) (1994); Otting v. J.C. Penney Co., 223 F.3d 704, 708 (8th Cir. 2000). According to the EEOC regulations, "substantially limits" means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1) (2001); see also Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir.2002) ("The Supreme Court has made it clear that the ADA `addresses substantial limitations on major life activities, not utter inabilities'.") (quoting Bragdon v. Abbott, 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)). The EEOC regulations list the following factors to consider in determining whether an individual is substantially limited in a major life activity: (i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long-term impact, or the expected permanent or 1101 long-term impact of or resulting from the impairment of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2) (2001). The Interpretive Guidance to these regulations emphasizes that this is an individualized assessment and that this determination "must be made on a case by case basis". 29 C.F.R. app. § 1630.2(j) (2001). Defendants contend that Wood's "disability" does not substantially limit one or more major life activities. Both defendants cite Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), for the proposition that this inquiry depends on the employee's ability to do those activities central to most people's daily lives, such as brushing their teeth, washing their face, bathing, gardening, fixing breakfast, doing laundry, and picking up around the house ("the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job"). Toyota, 122 S.Ct. at 693. Defendants contend that because Wood is able to perform the activities central to most people's daily lives (e.g., do household chores, tie his shoes, etc.), he is not disabled under the ADA. However, in a recent ADA case, the Eighth Circuit distinguished Toyota, noting that the inquiry there was whether the plaintiff was substantially limited in the major life activity of performing manual tasks. Moysis v. DTG Datanet, 278 F.3d 819, 825 n. 2 (8th Cir.2002). Thus, while Toyota may have precluded Wood from predicating his disability claim on the major activity of performing manual tasks, he still might be substantially limited in another major life activity.[3] Wood claims that he is substantially limited in the major life activities of walking, procreation, and working. Because Wood is unable to walk more than one-half mile without resting, it could be argued that he is "significantly restricted as to the condition, manner, or duration under which an individual can [walk] as compared to the condition, manner, or duration under which the average person in the general population can [walk]". 29 C.F.R. § 1630.2(j)(1)(ii) (2001). An example in the Interpretive Guidance states: "an individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking". 29 C.F.R. app. § 1630.2(j) (2001). However, the Eighth Circuit has held that difficulty walking "long distances" without getting fatigued or experiencing back discomfort is a "moderate", not a substantial, limitation on the major life activity of walking and, thus, is not a disability under the ADA. Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir.1999); see also Taylor v. Nimock's Oil Co., 214 F.3d 957, 960, 962 (8th Cir.2000) (affirming summary judgment for the defendant where plaintiff was able to walk approximately one mile and was thus not substantially limited in walking); Hanson v. Prairie Material Sales, Inc., No. 00 C 1574, 2001 WL 1105097 7 (N.D.Ill. Sept.20, 2001) (holding that the plaintiff was not substantially limited in walking although he walked at a slower pace, experienced back discomfort if he walked "long distances", and occasionally needed help going up stairs). This precedent controls, and the 1102 Court finds that Wood is not substantially limited in the major life activity of walking. With respect to the major life activity of working, the Interpretive Guidance to the EEOC regulations explains: If an individual is not substantially limited with respect to any other major life activity, the individual's ability to perform the major life activity of working should be considered. If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working. 29 C.F.R. app. § 1630.2(j) (2001). The Court will address this issue briefly. The determination of whether an individual is substantially limited in working must also be made on a case by case basis. Id.; Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949 (8th Cir. 1999). In the context of working as a major life activity, The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i).[4] Defendants contend that Wood's inability to drive a ready-mix truck is particular to that specific job and does not constitute a substantial limitation in the major life activity of working. Crown points out that Wood is not restricted in the ability to perform a class of jobs (truck driving), because he is able to drive dump trucks, aggregate trucks, and low boy trucks. An example in the Interpretive Guidance to the EEOC regulations is instructive: "an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co-pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working". 29 C.F.R. app. § 1630.2(j) (2001). The Court finds that a restriction as narrowly drawn as Wood's prohibition against driving ready-mix trucks would not constitute a substantial limitation on the major life activity of working. Wood alleges that he has been impotent since his back surgery and that he cannot have children because he is unable to maintain a full erection or "complete the act of sexual intercourse". Reproduction is a major life activity. Bragdon v. Abbott, 524 U.S. 624, 638, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The Court recognizes that sexual dysfunction 1103 may qualify as a disability under the ADA. See McAlindin v. County of San Diego, 192 F.3d 1226, 1234-35 (9th Cir. 1999); Hiller v. Runyon, 95 F.Supp.2d 1016, 1021 (S.D.Iowa 2000); Cornman v. N.P. Dodge Mgmt. Co., 43 F.Supp.2d 1066, 1072 (D.Minn.1999). The Court would be inclined to find a material issue of fact on this question, but Plaintiff has failed to establish the second and third elements of his prima facie case of discrimination, as discussed below. Accordingly, no specific finding of a qualifying disability on this basis is necessary to the Court's decision.[5] Crown also argues that not only was Wood not actually disabled under the ADA, but neither did he have a record of having a disability, nor was he regarded as having a disability. The court agrees. Having a record of such impairment means "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities". 29 C.F.R. § 1630.2(k). "The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities." 29 C.F.R. app. § 1630.2(k). "The provision addressing perceived disabilities `is intended to combat the effects of "archaic attitudes", erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities'." Brunko v. Mercy Hospital, 260 F.3d 939, 942 (8th Cir.2001) (citing Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995)). In order to establish a prima facie case of a perceived disability under the ADA, Wood must show that Crown "regarded him as having an impairment that substantially limit[ed] a major life activity". Roberts v. Unidynamics Corp., 126 F.3d 1088, 1092 (8th Cir.1997) (citing Wooten, 58 F.3d at 385). The Court finds it inescapable on this record that Crown only perceived that Wood was unable to perform the necessary function of driving a ready-mix truck. Defendants contend that since Wood cannot drive a ready-mix truck, he cannot perform the essential functions of his old job of ready-mix truck driver. The parties agree that Wood cannot perform this function without reasonable accommodations. The ADA requires employers to provide "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose undue hardship on the operation of the business of such covered entity". 42 U.S.C. § 12112(b)(5)(A) (1994). "Reasonable accommodations" may include "reassignment to a vacant position". 42 U.S.C. § 12111(9)(B) (1994); Fjellestad, 188 F.3d at 951 n. 4. It is Plaintiff's initial burden to demonstrate that he could have performed the essential functions of his job with reasonable accommodation and that reasonable 1104 accommodation was possible. Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1016 (8th Cir.2000). Then the burden shifts to Defendant "`to show that it is unable to accommodate the employee'". Id. (quoting Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)). "If the employer presents credible evidence that reasonable accommodation is not possible or would be unduly burdensome, then the plaintiff must produce evidence `concerning his individual capabilities and suggestions for possible accommodations to rebut the employer's evidence'." Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.1985) (quoting Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir.1981)). Wood has not suggested any ways in which he could have been reasonably accommodated to perform his current job of ready-mix driver. When an individual cannot be reasonably accommodated to perform his current position, reassignment to a vacant position should be considered. 29 C.F.R. app. § 1630.2(o) (2001). Wood has suggested several variations on this possibility: (i) placing him in a position at Crown in which driving a ready-mix truck was not an essential function and waiving the requirement of ability to drive a ready-mix truck in an emergency; (ii) placing him on a leave of absence until a suitable position opened up; (iii) making an exception to the policy of awarding bid jobs to the employee with the most seniority by reserving the newly created yard man position for Wood even if he was not the most senior employee interested; or (iv) transferring him to another "Gillotti company"[6] into a position that did not require ready-mix truck driving (specifically, the vacant aggregate truck driver position at Midwest Redi-Mix). It should be noted that Wood is only required to make a "facial showing" that accommodation was possible. See Fjellestad, 188 F.3d at 951. Each of Wood's suggestions and Defendants' responses thereto will be addressed in turn below. Defendants contend that it is unable to accommodate Wood in this way because the ability to drive a ready-mix truck in an emergency is an essential function of every position at Crown. "[J]ob restructuring" is listed in the EEOC regulations as a possible reasonable accommodation. 29 C.F.R. § 1630.2(o)(2)(ii) (2001). "An employer ... may restructure a job by reallocating or redistributing non-essential, marginal job functions ... An employer ... is not required to reallocate essential functions." 29 C.F.R. app. § 1630.2(o) (2001) (emphasis added). Although there are no job descriptions in the record, Keith Kuennen testified that all Crown employees must be able to drive a ready-mix truck as an essential function of their job. The Court notes that it is not its position to question the soundness of Crown's business judgments. See e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir.1994) ("Federal courts do not sit as a super-personnel department that reexamines an entity's business decisions."); 29 C.F.R. app. § 1630.2(n) (2001) ("It is important to note that the inquiry into essential functions is not intended to second guess an employer's business judgment with regard to production standards, whether qualitative or quantitative, nor to require employers to lower such standards."). Because Crown has produced 1105 credible evidence that accommodation is not possible, the burden now shifts to Wood to rebut this evidence. Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.1985). Wood has produced no evidence that the ability to drive a ready-mix truck in an emergency is not an essential function of every position at Crown.[7] In fact, Wood admitted in his deposition testimony and his Memorandum Resisting Summary Judgment that although he did not think it was an essential function of the job, he "had always believed that other drivers had to be able to drive a ready-mix truck in an emergency". Therefore, Wood's reassignment/restructure suggestion is not a reasonable accommodation. The Interpretive Guidance also lists "permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment" as a possible reasonable accommodation. Wood argues that there is no reason why the medical leave that he was on prior to his termination could not have been extended. Kuennen admitted that Crown was not required to terminate Wood when it did. The Union conceded that it would not have objected to an extended leave of absence. The Interpretive Guidance explains: Employers should reassign the individual to an equivalent position ..., if the individual is qualified, and if the position is vacant within a reasonable amount of time. A "reasonable amount of time" should be determined in light of the totality of the circumstances. As an example, suppose there is no vacant position available at the time that an individual with a disability requests reassignment as a reasonable accommodation. The employer, however, knows that an equivalent position, for which the individual is qualified, will become vacant next week. Under these circumstances, the employer should reassign the individual to the position when it becomes available. 29 C.F.R. app. § 1630.2(o) (2001); see also Fjellestad, 188 F.3d at 950 (reassignment to a vacant position is a possible accommodation). However, since driving a ready-mix truck is an essential function of every position at Crown, and Wood's restriction from driving ready-mix trucks was permanent, extending his leave of absence would have served no purpose. Crown submits that the yard man position, for which Wood desired to remain on leave to await, also required driving a ready-mix truck. Again, Wood has produced no evidence to rebut this job requirement. Therefore, allowing Wood to remain on leave to await the creation of a position for which he was not qualified[8] is not a reasonable accommodation. Defendants argue that forgoing the bidding process and seniority system for Wood would have been outside the collective bargaining agreement and as such was 1106 per se unreasonable. See U.S. Airways, Inc. v. Barnett, ___ U.S. ___, ___, 122 S.Ct. 1516, 1524, 152 L.Ed.2d 589 (2002) (recognizing that the lowers courts have unanimously found that collectively bargained seniority trumps the need for reasonable accommodation); Boersig v. Union Elec. Co., 219 F.3d 816, 821-22 (8th Cir.2000) (holding that the employer was not required to violate the collective bargaining agreement to accommodate plaintiff's disability). Wood submits that Crown did not strictly adhere to its seniority system. However, the examples that he cites (the Joe Carter incident and his being in the three-year pay scale) differ in their essential nature from ignoring seniority for purposes of job placement. As the Union points out, in doing so, Crown would have had to displace more senior employees to accommodate Wood. "An employer is not required to accommodate a handicapped individual in a manner that would violate the rights of other employees under a legitimate collective bargaining agreement." Mason v. Frank, 32 F.3d 315, 319 (8th Cir.1994). Thus, forgoing the bidding process to reassign Wood is not a reasonable accommodation. Crown argues that it was impossible for it to transfer Wood to another "Gillotti company" because each company is a separate entity. See Emrick v. Libbey-Owens-Ford Co., 875 F.Supp. 393, 398 (E.D.Tex.1995) ("[A]n employer is only required to offer transfer to another facility in situations where it is the regular practice of that employer to transfer employees between facilities."). Crown has presented evidence that it is its policy not to transfer employees between companies (Kuennen's testimony). Wood has not carried his burden by submitting any evidence to rebut this. Thus, Crown was not required to transfer Wood to another "Gillotti company" as a reasonable accommodation. It is undisputed that Crown terminated Wood because of his inability to drive a ready-mix truck. The termination letter stated that Wood was being terminated "because of [his] permanent medical restrictions". However, because he was not qualified to perform the essential functions of his job, Crown's adverse employment action does not constitute unlawful discrimination. Because Wood has failed to establish the second and third elements of his prima facie case, Defendants are entitled to summary judgment. E.g., Kellogg v. Union Pac. R. Co., 233 F.3d 1083, 1086 (8th Cir. 2000) (holding summary judgment is proper if the employee fails to establish any element of her prima facie ADA claim). Union Liability Under the ADA Even if Wood were able to establish a prima facie case of discrimination, the Union would still be entitled to summary judgment. In the Eighth Circuit, in order for a union to be held liable under the ADA, there must first be a finding that it breached its duty of fair representation. Martin v. Local 1513 & Dist. 118 of the Int'l Ass'n of Machinists & Aerospace Workers, 859 F.2d 581, 584 (8th Cir.1988) (holding breach of the duty would be necessary for the plaintiff to succeed on a theory of "liability by way of acquiescence" in a Title VII claim[9]); Nweke v. Prudential Ins. Co. of America, 25 F.Supp.2d 203, 219 (S.D.N.Y.1998) (holding that a union may face liability under the ADA if it breaches its duty of 1107 fair representation); Schaefer v. Erie County Dept. of Soc. Servs., 82 F.Supp.2d 114, 118 (W.D.N.Y.2000) (union can be held liable under ADA where plaintiff shows union breached duty of fair representation and union's actions were motivated by discriminatory animus). The Eighth Circuit has held that a union breaches its duty of fair representation when its conduct is "arbitrary, discriminatory, or in bad faith". Baxter v. United Paperworkers Intern. Union, Local 7370, 140 F.3d 745, 747 (8th Cir.1998); see also Buford v. Runyon, 160 F.3d 1199, 1202 (8th Cir.1998) ("Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation."). A claim of breach of the duty of fair representation "does not survive in the absence of a breach of the collective bargaining contract". Blount v. Local Union 25, 984 F.2d 244, 249 (8th Cir.1993) (discussing breach of the duty of fair representation in the context of § 301 of the Labor Management Relations Act). The Seventh Circuit has formulated a test that summarizes the aforementioned principles. To establish that the Union breached its duty of fair representation under this test, Wood must show: (1) that Crown violated the collective bargaining agreement; (2) the Union let the violation go unredressed, thereby breaching its duty of fair representation; and (3) that there was some indication of discriminatory animus motivating the Union's behavior. Bugg v. Int'l Union of Allied Indus. Workers, Local 507 AFL-CIO, 674 F.2d 595, 598 n. 5 (7th Cir.1982), cert. denied, 459 U.S. 805, 103 S.Ct. 29, 74 L.Ed.2d 43 (1982); Catley v. Graphic Communications Int'l Union, Local 277-M, 982 F.Supp. 1332, 1340 (E.D.Wis.1997). Wood argues that Crown breached the Agreement because it fired him because of his disability. However, even assuming, arguendo, that Crown's termination of Wood did constitute unlawful discrimination, the Agreement does not appear to contain a nondiscrimination clause. The Court is unable to identify any breach of the Agreement resulting from Wood's termination from Crown and notes that one of Wood's failure to accommodate arguments stems from Crown's refusal to violate the terms of the Agreement. The Union points out that because Wood never communicated to the Union a well-founded claim that Crown breached the Agreement, his claim had no chance of success, and therefore the Union was not obligated to take Wood's claim to arbitration. See Smith v. McDonnell Douglas Corp., 107 F.3d 605, 607 (8th Cir.1997) ("Establishing [that the union breached its duty of fair representation by failing to pursue that matter to arbitration] is an especially difficult task. Merely demonstrating the error of the union's decision or even that the decision was negligent is not enough."); Blount v. Local Union 25, 984 F.2d 244, 249 (8th Cir.1993) (holding as a matter of law that a union does not breach the duty of fair representation when it fails to prosecute an unmeritorious grievance); Danylchuk v. Des Moines Register, 128 F.3d 653, 653-54 (8th Cir.1997) (upholding district court decision that the union's decision not to arbitrate was not a breach of the duty of fair representation where it was not motivated by any animus against the employee); Nweke, 25 F.Supp.2d at 223 ("[A] union member does not have an absolute right to have her grievance taken to arbitration. Rather a union maintains discretion over its grievance machinery and the decision of whether to invoke arbitration."). Accordingly, the Court finds no record support for the claim that the Union breached its duty of fair representation by *1108 refusing to pursue Wood's grievance. Since Wood has failed to create a factual dispute as to whether the Union breached its duty of fair representation by allowing a breach of the Agreement by Crown to go unrepaired, the "discriminatory animus" prong of the Bugg test need not be addressed. Nweke, 25 F.Supp.2d at 223. In sum, even if Wood had established the underlying prima facie case of discrimination, the Union would be entitled to summary judgment. See Baxter v. United Paperworkers Intern. Union, Local 7370, 140 F.3d 745, 748 (8th Cir.1998) (granting summary judgment where the plaintiff failed to show that the union breached its duty of fair representation); Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998) (affirming grant of summary judgment on same grounds). Crown's Motion to Strike Defendant Crown requests that the court strike the arbitration decision, letter, and report of Dr. Robert Jones from the record for purposes of the summary judgment proceeding. Crown does not contest the authenticity or validity of these documents; instead, it bases its objection on Plaintiff's failure to certify the documents as required by Fed.R.Civ.P. 56(e). Plaintiff has expressed a willingness to depose the proper witnesses in order to ensure the validity of these documents. Under these circumstances, and in the context of the Court's decision on the motions for summary judgment, the Motion to Strike is denied. IV. CONCLUSION Defendants have shown that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law on Plaintiff's claims against each of them. Accordingly, both Motions for Summary Judgment are granted. Crown has also moved to strike the workers' compensation arbitration decision and the letter and report of Dr. Robert C. Jones. This motion will be denied. The Clerk of Court shall enter judgment dismissing the complaints. IT IS SO ORDERED. NOTES [1] Wood contends that Crown did not follow this policy. He points to employee Joe Carter, who quit his job, moved to Colorado and, upon rehire, was granted full seniority. Wood also contends that at one point, he himself was party to an agreement that deviated from the terms of the collective bargaining agreement. He contends that he was in a wage scale that was appropriate for a person who had been employed at Crown for three years, when in fact he had not yet been there for three years. Defendants respond that neither of these instances conflicted with the Agreement. [2] Wood submits that while the current version of the Agreement provides that all workers must be able to drive a ready-mix truck, the version that was in effect at the time of his termination contained no such language. However, even if the applicable Agreement did not specifically require the ability to drive a ready-mix truck, it did contain a management rights clause in which Crown retained the right to specify the duties of each position. While Wood concedes all Crown employees were expected to drive a ready-mix truck in an emergency, he makes the conclusory allegation that the ability to drive a ready-mix truck in an emergency is not actually an essential duty of every position at Crown. However, representatives from Crown and the Union testified that it is an essential duty, and Wood has offered no facts inconsistent with the company's expressed requirement. [3] Other major life activities enumerated in the EEOC interpretive guidelines include caring for one's self, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. app. § 1630.2(i) (2001). However, "[t]his list is not exhaustive". 29 C.F.R. app. § 1630.2(i) (2001). [4] The following factors may also be considered in determining whether an individual is substantially limited in working: (A) The geographical area to which the individual has reasonable access; (B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skill, or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (C) The job from which the individual had been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skill, or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). 29 C.F.R. § 1630.2(j)(3)(ii) (2001). [5] The specific circumstances of this case also obviate the necessity of addressing the issue of a connection between the Plaintiff's disability and the functions of the job. The ADA prohibits discrimination "against a qualified individual with a disability because of the disability ...". 42 U.S.C. § 12112(a) (emphasis added). Clearly a disability arising from sexual dysfunction bears no relationship to the job of driving a ready-mix truck and would in no way interfere with that job assignment. While the mirror image of the issue was arguably discussed in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 693, 151 L.Ed.2d 615 (2002), the Court is unaware of any precedent precisely on this issue. [6] Wood apparently envisions the several companies owned by the Gillotti family as one conglomerate entity. However, Steve Gillotti testified that each company is a legally separate entity, and there has been no evidence produced in the record to contradict this testimony. [7] The speculation and conjecture on this issue contained in Wood's deposition is insufficient to overcome summary judgment. "In order to survive a motion for summary judgment, the non-moving party must be able to show `sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy'." Godfrey v. Pulitzer Pub. Co., 276 F.3d 405, 412 (8th Cir.2002) (quoting Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994)). [8] An individual is qualified for a vacant position "if he can perform the `essential functions' of the position, with or without reasonable accommodation". Riley v. Weyerhaeuser Paper Co., 898 F.Supp. 324, 327 (W.D.N.C. 1995). Since Wood cannot drive a ready-mix truck, and he has produced no evidence indicating that this is not an essential function of positions which opened subsequent to his termination, Wood was not qualified for those future positions either. [9] "The ADA incorporates the procedures and enforcement mechanisms of Title VII. Accordingly, guidance on the proper analysis of [Wood's] ADA ... claim is found in Title VII cases." Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.1997).	{ "pile_set_name": "FreeLaw" }
647 S.W.2d 654 (1983) Maria Elena CABRERA, Appellant, v. The STATE of Texas, Appellee. No. 68207. Court of Criminal Appeals of Texas, En Banc. March 16, 1983. Rita Rodriguez, on appeal only, El Paso, for appellant. Steve W. Simmons, Dist. Atty. and Leo B. Garcia, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State. Before the court en banc. OPINION DALLY, Commissioner. This is an appeal from a conviction for the offense of interference with child custody; V.T.C.A. Penal Code, Section 25.03. The punishment is imprisonment for 4 years. It is alleged that the appellant intentionally and knowingly took Armando Quinones, a child younger than 18 years, out of this State when she knew this violated a temporary order disposing of the child's custody. The appellant in one ground of error urges that the evidence is insufficient to show that she knew the taking of her child violated a temporary order of the court providing for the child's custody. The court's order was served on the appellant in the sheriff's office by a deputy at 3:10 p.m. on July 14, 1980. Armando Quinones, who was less than 2 years old, was in the hospital at that time. The appellant "snuck" him from his hospital room at approximately 11:00 p.m. and took him to Mexico. The officer who served the appellant with the order did not explain it to her. She went immediately to the legal aid office where a secretary told her no lawyers were then available. The secretary looked at the papers and, without any further explanation, told appellant she was to appear in court on July 17 and to bring her daughter with her. The appellant testified she could not read English and that no one explained the order to her; she didn't remember whether or not the secretary kept the order or what happened to it. Although appellant testified through an interpreter, she said she understood some English. While she was at the sheriff's office where the order was served, she 655 heard an officer, other than the one who served her, ask if she had brought her daughter with her. He was told she had not. That officer then said they had her son and she would never get him back. This conversation which she heard at the sheriff's office, she testified, prompted her to take her son Armando Quinones from the hospital and take him to Mexico. The issue may be narrowed and decided on a basis other than whether the appellant could read the order or whether the order had been explained to her. The order is not sufficient to give her notice that her son's custody had been taken from her. The order, which is appended to this opinion, does not name or mention Armando Quinones except in the caption. The caption which names the parties is not a part of the order. Chief Justice Marshall, writing for the Supreme Court in Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 8 L.Ed. 898 (1834), held that the caption of a pleading was not a part of the pleading, and where the only allegation of jurisdiction was in the caption the lower courts did not have jurisdiction of the case. Since the caption of the order in this case is not a part of the order, the body of the order is not, as a matter of law, specific enough to give the appellant notice that the custody of her son had been taken from her, and that if she did what she did she could be convicted of a felony. The evidence is insufficient to support the conviction. The judgment is reversed and the judgment is reformed to show an acquittal. Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Opinion approved by the court. W.C. DAVIS, J., dissents. ONION, P.J., not participating. APPENDIX TEMPORARY ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP FOR TERMINATION AND/OR MANAGING CONSERVATORSHIP AND ORDER TO SHOW CAUSE On the day of , 1980, the application of Petitioner for temporary orders was presented to the Court. The Court, having examined the pleadings and affidavits of Petitioner, finds that Petitioner's sworn statements show that immediate and irreparable injury, loss, or damage, as alleged, will result to the safety and welfare of the children unless the Petitioner is appointed temporary managing conservator. Petitioner has not adequate remedy at law. The Court deems the following orders necessary for the safety and welfare of the children: IT IS ORDERED that Petitioner, Texas Department of Human Resources, be appointed temporary managing conservator until further order of this Court. The Court appoints , a licensed attorney, as attorney ad litem for the children in 656 IT IS FURTHER ORDERED that the District Clerk shall issue notice ordering Respondent(s) to appear; and Respondent(s) is/ are hereby ordered to appear before this Court in the City-County Building at 500 E. San Antonio, El Paso, Texas, on the day of , 1980, at o'clock .m., to show cause why, during the pendency of this cause: (1) Petitioner should not be appointed temporary managing conservator of the Children. (2) Respondent should not pay temporary support for the children. (3) The Court should not make such other and further orders as may be deemed necessary for the safety and welfare of the children. IT IS FURTHER ORDERED that the Clerk of the Court issue a Writ of Attachment to the Sheriff or any constable commanding him to attach to the child Rubi Cabrera, and if necessary forcibly enter the home at 2215 Olive #114 or 5353 Ridge #145, El Paso, Texas, to deliver Rubi Cabrera safely to the Texas Department of Human Resources, represented by Harvey Edgar Wilson, Petitioner, named Temporary Managing Conservator, and to make return of this writ instanter. IT IS FURTHER ORDERED that Maria Elena Cabrera, mother of the children the subject of this suit, be and is hereby, temporarily enjoined from: (1) contacting Petitioner in any manner except by telephone or mail; (2) coming on or about the premises where the Children and/or the parent, and/or the Petitioner may be whether the foster home, family home, school, church, or place of employment; (3) interfering in any manner with Petitioner's possession of the Children; (4) doing any act calculated to embarrass, humiliate, or otherwise molest or injure the Petitioner, and/or the Children, and/or the parent; (5) removing the Children from the jurisdiction of this Court.	{ "pile_set_name": "FreeLaw" }
529 F.Supp.2d 852 (2007) PHG TECHNOLOGIES, LLC, Plaintiff, v. The ST. JOHN COMPANIES, INC., Defendant. No. 03:05-0630. United States District Court, M.D. Tennessee, Nashville Division. March 26, 2007. 853 Lea Speed Hall and Adam S. Baldridge of Baker Donelson Bearman Caldwell & 854 Berkowitz, PC, Memphis, TN, for Plaintiff PHG. Robert Schroeder and Jennifer Phelps of Bingham McCutchen, LLP, Los Angeles, CA, for Defendant St. John Companies. MEMORANDUM ROBERT L. ECHOLS, District Judge. Pending before the Court are Defendant The St. John Companies, Inc.'s Motion For Summary Judgment Of Invalidity Under 35 U.S.C. § 102(b) (Docket Entry No. 209) and PHG Technologies, LLC's Motion For Partial Summary Judgment (Docket Entry No. 133), to which the parties have responded in opposition. PHG Technologies, LLC ("PHG") brought this action against The St. John Companies, Inc. ("St.John") seeking to enforce its design patents on medical label sheets, U.S. Patent Des. No. 496,405 S ("the '405 patent") and U.S. Patent Des. No. 503,197 S ("the '197 patent"), and to protect its "EasyID" trademark. The Court entered a preliminary injunction against St. John and denied the parties' motions for partial summary judgment. PHG Technologies, LLC v. St. John Companies, Inc., 2005 WL 3301601 (M.D.Tenn. Dec.5, 2005). In November 2006, the Federal Circuit vacated the preliminary injunction, ruling "based on the evidence of record at this preliminary stage" that PHG failed to meet its burden to prove likelihood of success on the merits on the question of patent validity. PHG Technologies, LLC v. St. John Companies, Inc., 469 F.3d 1361, 1369 (Fed.Cir.2006). On PHG's motion, the Court dismissed St. John's counterclaims for unfair competition (Count XI), violation of the Tennessee Consumer Protection Act (Count XII), and unjust enrichment (Count XIII). PHG Technologies, LLC v. St. John Companies, Inc., 459 F.Supp.2d 640 (M.D.Tenn.2006). The parties have now filed cross-motions seeking summary judgment in their favor on various claims and counterclaims. The Court previously set forth numerous relevant facts in the above-cited prior opinions in this case and in the related case. PHG Technologies, LLC v. TimeMed Labeling Sys., Inc., No. 3:05-1091 (M.D.Tenn.) ("TimeMed case"). In the interest of brevity, the Court will not restate facts here except as necessary to address the particular legal issues raised by the pending motions. I. STANDARD OF REVIEW "Summary judgment is appropriate when 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)." Continental Plastic Containers v. Owens Brockway Plastic Prods., Inc., 141 F.3d 1073, 1076 (Fed.Cir. 1998). Material facts are those which may affect the decision so that the finding of such facts is relevant and necessary to the proceedings. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). If sufficient evidence is presented so that a reasonable fact finder could decide the question in favor of the non-moving party, a genuine issue is shown to exist. Id. The Court must believe the evidence submitted by the non-movant and draw all justifiable inferences in that party's favor. Id. The Court must assess the adequacy of the non-movant's response and determine whether the showing the non-movant "asserts it will make at trial would be sufficient to carry its burden of proof." Id. II. ANALYSIS A. St. John's Motion for Summary Judgment of Invalidity Under 35 U.S.C. § 102(b) St. John seeks summary judgment in its favor on the patent infringement claims 855 asserted against it by PHG in Counts I and II, and on St. John's corresponding declaratory judgment Counts I and II as stated in its counterclaim against PHG. St. John contends that PHG's design patents are invalid because label sheets having the configuration shown in the '197 and '405 patents were "on sale" more than one year prior to the critical date, September 14, 2001. Patents are presumed to be valid. 35 U.S.C. § 282; VMS Gaming, Inc. v. International Game Technology, 184 F.3d 1339, 1355 (Fed.Cir.1999). To prevail St. John must demonstrate a lack of genuine dispute about material facts and show that the facts not in dispute clearly and convincingly demonstrate patent invalidity. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1358-1359 (Fed.Cir. 2001). St. John's motion for summary judgment on patent invalidity is in all respects nearly identical to the motion for summary judgment on patent invalidity made in the TimeMed case. St. John relies on the opening briefs and supporting papers filed by TimeMed in the related case and makes those filings part of the record in this case. (Docket Entry Nos. 209, 130, 131 & 132.) St. John's Statement of Undisputed Facts in Support of Motion for Summary Judgment (Docket Entry No. 129), with the exception of minor stylistic and record citation revisions, is identical in substance to the Statement of Uncontested Facts in Support of Summary Judgment filed by TimeMed. (No. 05-1091, Docket Entry No. 88.) After the Court denied TimeMed's motion for summary judgment on the issue of patent invalidity, the Court permitted St. John to file a Supplemental Memorandum (Docket Entry No. 213) in support of its summary judgment motion in this case. In the Supplemental Memorandum, St. John identifies two reasons why its motion for summary judgment should be considered independently and decided differently from TimeMed's motion. First, St. John contends that PHG cannot rely on the experimental use exception to overcome a prima facie case of patent invalidity because (a) PHG principal Brian Moyer at his deposition in this case "admitted that he did not know what happened to all 4,000 label sheets [fabricated by Ward/Kraft] and could not say they were not sold[ ]" and (b) St. John contends the label sheets were put on sale by Ward/Kraft; therefore, no amount of experimentation by PHG subsequent to the Ward/Kraft offer for sale could retroactively ameliorate the legal effect of Ward/Kraft's offer for sale. Second, St. John contends that this Court erroneously relied on Tone Bros., Inc. v. Sysco Corp., 28 F.3d 1192 (Fed.Cir.1994), in the TimeMed case, but in any event Tone Bros. does not apply here because St. John's on-sale defense relies on the acts of the third party, Ward/Kraft, not PHG. Thus, according to St. John, for Tone Bros. to apply by analogy in this case, PHG must present evidence from which a jury could reasonably find that Ward/Kraft was experimenting, thereby negating the effect of Ward/Krafes offer for sale or sale of label sheets to PHG. St. John's initial attack on the testimony of Brian Moyer bears little fruit. A fair reading of the deposition transcript excerpt cited does not reveal that Moyer. "admitted he did not know what happened to all 4,000 label sheets and could not say they were not sold[.]" The gist of the testimony is much different. St. John's counsel asked Moyer: Q. You didn't sell any of the first 4,000. A. No. Q. And you, didn't sell any of the second 4,000; correct? A. Not that I recall. 856 (Docket Entry No. 177-3, Moyer Depo. at 60-61.) Taking this testimony in the light most favorable to PHG, St. John has not produced evidence in support of its summary judgment motion establishing that Moyer commercially sold to customers any of the first 8,000 label sheets he obtained from Ward/Kraft. St. John next requests that the Court focus on Ward/Kraft's actions prior to the critical date, rather than PHG's actions. St. John urges the Court to hold that Ward/Kraft sold or offered to sell label sheets to PHG, thus rendering PHG's design patents invalid, and that Ward/Kraft did not engage in experimental use which would negate its sale or offer to sell. The Court fully examined the entire course of conduct between Ward/Kraft and PHG in its prior opinion entered in the TimeMed case. There, the Court explained why, taking the facts in the light most favorable to PHG, neither the actions of Ward/Kraft nor PHG amounted to commercial sales or offers to sell. The Court sees no reason to reiterate that entire analysis here. In rejecting St. John's contentions, the Court incorporates by reference and relies on its prior analysis in PHG Technologies, LLC v. TimeMed Labeling Sys., Inc., 2006 WL 2670967 (M.D.Tenn. Sept.18, 2006). As the Court stated in the TimeMed case, the facts show that Moyer made the disclosures concerning the design patents to Ward/Kraft with the expectation of confidentiality and "both PHG and Ward/Kraft understood that the first samples were fabricated as `test runs.'" Id. at *3, 11. The Court also observed that the evidence showed PHG ran the sample label sheets Ward/Kraft manufactured through various laser printers to see how the product would perform before PHG contracted with Ward/Kraft in October 2000 to mass-produce the label sheets for commercial sale to customers. Id. at 11. Thus, the Court held that PHG was entitled to the "small inventor" exception under Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 888, 891-892 (Fed.Cir.1999). The Court believes that it would be ignoring the requirements of law if it focused solely on the fact that Ward/Kraft did not conduct any experimentation. In Electromotive Div. of Gen. Motors Corp. v. Transportation Sys. Div. of Gen. Elec. Co., 417 F.3d 1203, 1212-1214 (Fed.Cir.2005). the Federal Circuit identified thirteen (13) objective factors to consider in determining "whether pre-critical date activities involving the patented inventioneither public use or salewere primarily experimental and not commercial." These factors are: "(1) the necessity for public testing; (2) the amount of control over the experiment retained by the inventor; (3) the nature of the invention; (4) the length of the test period; (5) whether payment was made; (6) whether there was a secrecy obligation; (7) whether records of the experiment were kept; (8) who conducted the experiment; (9) the degree of commercial exploitation during testing; (10) whether the invention reasonably required evaluation under actual conditions of use; (11) whether testing was systematically performed; (12) whether the inventor continually monitored the invention during testing; and (13) the nature of the contacts made with potential customers." Id. at 1213. The list is not exhaustive and not all factors apply in a particular case. Id. Here, the evidence suggests it was necessary for PHG to know if its patented design would work when reduced to practice on laser medical label sheets. Thus, PHG reasonably required testing to evaluate the label sheet design under actual conditions of use. Ward/Kraft knew a limited number of labels were being produced solely for testing purposes. As stated above, Moyer testified he disclosed the patented designs to Ward/Kraft with the expectation of secrecy. 857 As the second factor emphasizes, the focus is on the inventor and the amount of control the inventor exerts over the experiment. Evidence indicates that PHG inventors, Brian Moyer and Thomas Stewart, and PHG employees maintained control over the use of the label sheets as the sheets were tested in various laser printers under conditions similar to expected commercial use. The inventors continually monitored the label sheets during testing. The testing period covered a short period of time, and PHG paid Ward/Kraft to fabricate the samples, although not the full amount Ward/Kraft sought on the first 4,000 labels. According to Moyer's testimony, testing was conducted systematically, and records of the experiments were kept because Moyer sent Ward/Kraft a memorandum outlining the problems with the first boxes of label sheets. There is no evidence of any contact with potential customers during testing and no evidence of commercial sales or offers to sell to customers during testing. Thus, consideration of the evidence in light of the applicable objective factors and with a view most favorable to PHG tends to show that PHG's and Ward/Kraft's precritical date activities involving the patented designs were primarily experimental and not commercial. See id. at 1213. Finally, the Court does not believe that its discussion of the Tone Bros. case in the TimeMed opinion, along with Continental Plastic Containers v. Owens Brockway Plastic Prods., Inc., 141 F.3d 1073, 1079 (Fed.Cir.1998), was erroneous. TimeMed Labeling Sys., Inc., 2006 WL 2670967 at 12. Moreover, as Electromotive Div. of Gen. Motors Corp., 417 F.3d at 1212-1214 reveals, the focus must remain on PHG as the inventor, not on Ward/Kraft the supplier. But even if the focus shifts to Ward/Kraft, as St. John contends, the result is no different. In the TimeMed opinion, this Court discussed Continental Plastic Containers, 141 F.3d at 1079-1080, in which the Federal Circuit stated that, even if it extended Tone Bros., a "public use" ease, to the "on-sale" context, there was no nexus in that case between the alleged experimentation and the sale because Continental, the manufacturer, sold juice bottles to the inventor only for commercial exploitation, not for experimentation by the inventor. TimeMed Labeling Sys., Inc., 2006 WL 2670967 at 13. This Court also pointed out that in Continental Plastic Containers, as in Brasseler, the Federal Circuit stated Continental did not present "a case in which Continental sold a discrete number of the bottles to. L & A Juice so that L & A Juice might experiment on them to ascertain whether they were suitable for a particular purpose." Id. See also Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1356 (Fed.Cir.2001). St. John does not address this discussion. Thus, St. John's motion for summary judgment on PHG's Counts I & II and St. John's Counterclaim Counts I & II will be denied. B. PHG's Motion For Partial Summary Judgment PHG moves for summary judgment in its favor on several grounds. The Court will consider each ground in turn. 1. Patent validity PHG asserts that its patents are valid because the designs are ornamental, not functional, and the patents were not invalidated by an on-sale bar. Thus, PHG claims it is entitled to summary judgment on the issue of patent validity. a. Whether the patented designs are ornamental or functional PHG contends that its '405 and '197 design patents are valid because the designs are primarily ornamental, not functional, as the Court previously found when 858 it granted PHG's motion for a preliminary injunction.[1] St. John opposes summary judgment asserting that (1) the patents are invalid because PHG's design copied the upper nine rows of labels from James Riley's PLS-103 and the two lower rows of wristband labels in. PHG's design are primarily functional, not ornamental; and (2) the patented label sheet configuration is functional because it is needed to make use of the software PHG sells to customers. PHG disagrees with St. John's contentions. Title 35 U.S.C. § 171 provides that a patent may issue to "[w]hoever invents any new, original, and ornamental design for an article of manufacture[.]" There is no functionality requirement in obtaining a design patent. See id.; Continental Plastic Containers, 141 F.3d at 1079. Thus, once issued, a design patent is entitled to a presumption of validity. 35 U.S.C. § 282. The burden to establish invalidity of the patent rests on the party asserting invalidity. Id. The Court addressed the issue of patent invalidity when it granted PHG's motion for a preliminary injunction and ruled that PHG had shown a likelihood of success on the merits of its claim that its designs are primarily ornamental, not functional. PHG Technologies, LLC, 2005 WL 3301601 at *4-6. "Whether a patented design is functional or ornamental is a question of fact." PHG Technologies, LLC, 469 F.3d at 1365. The Federal Circuit vacated the injunction "based on the evidence of record at this preliminary stage[.]"[2]Id. at 1369. Thus, the appellate court's statement makes clear that this Court, following discovery and on motion for summary judgment, may reconsider the issue based on the factual record as it currently stands. A design patent concerns the appearance of an article of manufacture, and it protects the nonfunctional aspects of an ornamental design as shown in the patent. See Seiko Epson Corp. v. Nu-Kote Inc., 190 F.3d 1360, 1368 (Fed.Cir.1999). The design need not be aesthetically pleasing; the "ornamental" requirement means that "the design must not be governed solely by function, that is, this is not the only possible form of the article that could perform its function." Id. If the patented design is primarily functional rather than ornamental, the patent is invalid. Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 238 (Fed.Cir.1986). The design of a useful article "is deemed to be functional when the appearance of the claimed design is `dictated by' the use or purpose of the article." L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F2d 1117, 1123 (Fed. Cir.1993). A design may embody functional features, however, and still be patentable. There is a distinction "between the functionality 859 of an article or features thereof and the functionality of the particular design of such article or features thereof that perform a function." Avia Group Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1563 (Fed.Cir.1988). If that were not true, it would be impossible to obtain a design patent on a utilitarian article of manufacture or to obtain design and utility patents on the same article. Id. The Federal Circuit stated in PHG Technologies, LLC, 469 F.3d at 1366: "[The determination of whether the patented design is dictated by the function of the article of manufacture must ultimately rest on an analysis of its overall appearance." Berry Sterling Corp. v. Pescor Plastics, Inc., 122 F.3d 1452, 1455 (Fed.Cir.1997). Our cases reveal a "list of . . . considerations for assessing whether the patented design as a wholeits overall appearancewas dictated by functional considerations," including: whether the protected design represents the best design; whether alternative designs would adversely affect the utility of the specified article; whether there are any concomitant utility patents; whether the advertising touts particular features of the design as having specific utility; and whether there are any elements in the design or an overall appearance clearly not dictated by function. Id. at 1456 (emphasis added). In particular, we have noted that "[t]he presence of alternative designs may or may not assist in determining whether the challenged design can overcome a functionality challenge. Consideration of alternative designs, if present, is a useful tool that may allow a court to conclude that a challenged design is riot invalid for functionality." Id. "When there are several ways to achieve the function of an article of manufacture, the design of the article is more likely to serve a primarily ornamental purpose." Rosco[, Inc. v. Mirror Lite Co.], 304 [1373,] 1378 [Fed. Cir.2002]. This excerpt from the Federal Circuit's opinion confirms this Court's previous conclusion that it cannot use the limitations of the commercial embodiment of the underlying article of manufacture to impose limitations on the scope of the design patent. See Berry Sterling Corp., 122 F.3d at 1455. PHG identifies the ornamental features of its design as the different sizes of labels and their placement on the sheet. The testimony at the preliminary injunction hearing revealed there are a multitude of ways to arrange different sizes of labels on an 8 1/2" × 11" sheet. Brian Moyer testified that PHG considered various arrangements for medical label sheets and settled on the design ultimately patented because it had "the best flow and look." He reiterates this testimony in an Affidavit supporting the summary judgment motion. (Docket Entry No. 149, Moyer Aff. ¶¶ 12.) The prior art identified by the patent examiner revealed earlier design patents that were issued for the ornamental design of a paper sheet or for the ornamental arrangement of labels on a sheet (Prelim. Inj. Hr'g, Plaintiffs Collective Ex. 1 at '654, '044, '404, '933, '264, '031), but the novel features of PHG's Medical Label Sheet, particularly the placement of various sizes of labels at the bottom of the sheet, distinguished PHG's ornamental design from the prior art, resulting in issuance of PHG's design patents '405 and '197. St. John previously suggested in connection with the preliminary injunction motion that PHG's placement of the different-sized labels was driven purely by function in label use. St. John relied on the Affidavit and preliminary injunction hearing testimony of its CEO, Adam Press. The Federal Circuit quoted from the Press Affidavit as follows: 860 The labels for use on the wristbands themselves are located on the bottom two rows of the sheet as these are usually the first labels used when a patient is admitted to a medical facility. The lower right hand corner is the easiest location for a right-handed user to remove the label as it is flush to an edge and unencumbered by a file or binder clip along the top or left hand margins. By placing the labels for the wristbands at the bottom of the page, the subsequent removal of additional labels adjacent to the removed label is facilitated. PHG Technologies, LLC, 469 F.3d at 1367 (quoting Press Aff. 115.d.).[3] The Federal Circuit determined: Mr. Press's affidavit constitutes evidence that alternative designs, which do not include the "novel feature" of PHG's designthe placement of various sizes of medical labels at the bottom of the sheetwould adversely affect the utility of the medical label sheet. It articulates a clear functional reason why the use and purpose of the article of manufacture dictated that the "wristband" labels be located at the bottom of the sheet. Id. This was in contrast to PHG's preliminary injunction evidence that Brian Moyer and Thomas Stewart chose the patented designs because they had "the best flow and look." Id. at 1368. The appellate court ruled that PHG failed to show a likelihood of success on the Merits because "PHG did not offer testimony refuting the assertions made in Mr. Press's affidavit that functional considerations dictated the medical label design, specifically the `novel feature' of the differently-sized labels being placed at the bottom of the sheet." Id. The court distinguished the case from L.A. Gear where "the patentee introduced evidence indicating that `a myriad of athletic shoe designs' could achieve the same functions that were achieved by the patented designs and `[i]t was not disputed that there were other ways of designing athletic shoes to perform the functions of the elements of the [patented] design.' 988 F.2d at 1123." Id. St. John apparently no longer relies on the Press Affidavit and testimony as neither the Affidavit nor an excerpt of the preliminary injunction hearing testimony is appended in support of St. John's opposition to summary judgment. However, PHG provides the testimony of an expert witness, Amy Sharp, who opined: It is my expert opinion that the Patented Designs are primarily ornamental and that the arrangement of the labels on the sheet contained in the Patented Designs has to do only with their look and appearance. It is also my expert opinion that the Patented Designs are not primarily functional. The bottom two rows of labels in the Patented Design could have been placed anywhere on the label sheet design. . . . the Patented Designs are not primarily functional but instead are arranged to have the most aesthetic appeal, and thus are primarily ornamental. Indeed, I created 861 some designs on which the same labels are on the sheet, but the labels are oriented differently from the Patented Designs, showing that the label layout in the Patented Designs cannot have been primarily functional (See Collective Exhibit "B"). One of these draft layouts has the labels turned 90° from the layout of the Patented Designs. The advantage of this layout is that more labels can be obtained from a single sheet of 8½ × 11" label stock. It would function as a label sheet just as well as a label sheet bearing the Patented Designs. (Docket Entry No. 260-9, Expert Report of Amy Sharp at 3-4.) Thus, as in L.A. Gear, 988 F.2d at 1123, PHG has come forward with evidence in support of its summary judgment motion that a myriad of medical label sheet designs could achieve the same functions that are achieved by the patented designs; that is, alternatives do not adversely affect the utility of the medical label sheet. See PHG Technologies, LLC, 469 F.3d at 1367. This evidence suggests that PHG's patented designs are primarily ornamental. Because St. John, the non-moving party, has not produced any evidence contradictory to Ms. Sharp's expert opinion, St. John has not shown there is a genuine issue of material fact for trial and has not carried its burden to show by clear and convincing evidence that the patented designs are functional, thus rendering the patents invalid. See Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1378-1379 (Fed.Cir.2002) ("Mirror Lite has not shown by clear and convincing evidence that there are no designs, other than the one shown in Rosco's 357 patent, that have the same functional capabilities as Rosco's oval mirror."); Continental Plastic Containers, 141 F.3d at 1079. Since issuance of the Federal Circuit's opinion, St. John has shifted gears. It now focuses upon the disclosure in the TimeMed case that Brian Moyer patterned PHG's patented designs on the PLS-103, a laser label sheet of thirty labels which PHG had been purchasing from James Riley's company, Riley, Barnard & O'Connell ("RB & O"), and selling to PHG customers. PHG Technologies, LLC v. TimeMed Labeling Sys., Inc., 2006 WL 2052701 at 3-4 (M.D.Tenn. July 21, 2006). Based on evidence presented at the evidentiary hearing on a motion to correct inventorship, the Court found "that Moyer and Stewart copied all of the elements of the PLS-103 except for the new die cuts in the bottom two rows of the design depicted in the '405 and '197 patents and reduced to practice in the 20-101AW." Id. at 4. The Court specifically noted that "Stewart conceded at his deposition that Moyer incorporated the, design of the upper twenty-seven (27) labels of the PLS-103 into the 20-101 AW. (Stewart Depo. at 73-74.)" Id. The Court further found: While there may have been, as Moyer testified, many label sheets with holes punched in them available in the market at the time Moyer and Stewart designed the 20-101 AW in 2000, Moyer and Stewart did not adopt the elements of punched holes and a pattern adhesive because those elements were common knowledge in the marketplace. Rather, Moyer and Stewart adopted the features because "they were the hallmark of the PLS-103, and the PLS-103 had been a successful product for PHG. Id. St. John contends that, because the facts now undisputedly show that James Riley originated most of PHG's patented design as part of the PLS-103 label sheet, Moyer's and Stewart's contribution to the patents-in-suit consists solely of the substitution of two rows of wristband labels for the bottom row of Riley's chart labels on the PLS-103. St. John asserts that PHG's "patents can be valid only if this small 862 change in and of itself meets the ornamentality standard . . . if the difference between the prior art PLS-103 and the patented design is `primarily functional' the patents must be invalid.", (Docket Entry No. 257, Supp. Memorandum at 5.) St. John further reasons that "[o]nce the issue is properly framed in this way, the invalidity question has only one possible answer because of [PHG's] EasyID software and its functional requirements." (Id.) St. John presents deposition testimony of Thomas Stewart confirming that "[w]hen a hospital uses EasyID software to drive its printers to print label sheets . . . those label sheets have to have the configuration shown" in the patented design unless the software is modified. (Docket Entry No. 257, Ex. 5, Stewart Depo. at 63.) St. John also points to the testimony of Brian Moyer, who stated that, to his knowledge, PHG had not helped any customer modify PHG's software after sale because "[w]e want to sell them our labels." (Docket Entry No. 257, Ex. 3, Moyer Depo. at 88-89.) From this testimony, St. John suggests that "the fact that label sheets of the patented configuration are needed to fully make use of the EasyID software hospitals have purchased from [PHG] compel[s] the conclusion that the label sheet configuration is functional[ ]" as a matter of law, not ornamental. (Docket Entry No. 257, Supp. Memorandum at 6.) "The labels must be positioned where the printer is programmed to print. The wristband labels cannot be moved, as [PHG] has proposed, to form a functionally equivalent alternative design." (Id. at 7.) According to St. John, any alteration of the patented design PHG might propose would, in the words of the Federal Circuit, adversely affect the utility of the specified article such that the alteration would not truly be an "alternative" within the meaning of case law. St. John states that "[t]here can be no doubt that the need to employ a particular patented design for purposes of compatibility with a complementary product renders that design functional and precludes valid design patent protection." (Id.) Relying on Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1566 (Fed.Cir.1996), St. John contends the configuration of PHG's label sheet is dictated solely by functional concerns because of the requirements of PHG's EasyID software, just as "[a]ny aesthetic appeal of the key blade design shown in the '636 patent" at issue in Best Lock Corp. was "the inevitable result of having a shape that it dictated solely by functional concerns." Because alternative designs would adversely affect the utility of the label sheet design, such design must be primarily functional, not ornamental. A design patent protects the non-functional aspects of an ornamental design seen as a whole and as shown in the patent. Amini Innovation Corp. v. Anthony California, Inc., 439 F.3d 1365, 1370 (Fed.Cir.2006). Like PHG, the Court believes that. St. John impermissibly seeks to narrow the scope of PHG's design patent rights by imposing arbitrary requirements associated with the commercial product such as that the label sheets be used in a specific way (with PHG's software) or that the label sheets must be of a particular size (8½ × 11) or that the labels on the sheet must be a specific dimension or that the label sheets be made of a specific material (laser label sheets). However, none of these arbitrary limitations are specified in the patents and thus none are part of or limitations on the patent rights granted to PHG. (Docket Entry No. 134, PHG's Memorandum at 4.) A design patent has almost no scope, and the claim at bar is limited to 863 what is shown in the application drawings. See Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed.Cir.1995). "`[T]he determination of whether the patented design is dictated by the function of the article of manufacture must ultimately rest on an analysis of its overall appearance." PHG Technologies, LLC, 469 F.3d at 1366 (quoting Berry Sterling Corp., 122 F.3d at 1455.) The drawings in the '405 and '197 patents affirm that it is the overall design of the medical label sheet that is patentednot just the details of its ornamentation. Amin, 439 F.3d at 1371. In Berry Sterling Corp., 122 F.3d at 1455, the court noted the design patent for an "ornamental design for a container to fit a vehicle cup receptacle" contained "no height or volume limitations, no requirements that the container fit in the majority of car cup holders, and no stability limitations imposed by the claim." As in Berry Sterling Corp., in this case PHG has presented evidence that the design patents include no limitations as to the size of the label sheet, no requirement that the label sheet fit in a standard printer or be made from specific materials such as laser stock, and no specification that the label sheet be able to run through a high temperature laser printer. Thus, under Berry Sterling Corp., the Court is not to consider whether the patented `designs can be used with any particular software or printer because there are no such limitations on the scope of PHG's design patents. Thus, as a matter of law, St. John cannot demonstrate that PHG's design patents are invalid on the ground that the labels must be positioned specifically to work in combination with PHG's computer software. The Court previously discussed above evidence that PHG's design is not solely dictated by its function because there were alternative designs available for the article of manufacture. See Best Lock Corp., 94 F.3d at 1566; Rosco, Inc., 304 F.3d at 1378. Also, the evidence shows that Moyer and Stewart arrived at this particular design because it had the "best flow and look," and at least some of PHG's customers use the 20-101AW label sheet without simultaneous use of PHG's protected software or a printer. For these reasons, Best Lock Corp. does not control here, and St. John's opposition to PHG's summary judgment motion must fail. b. The on-sale bar The Court discussed above in connection with St. John's motion for summary judgment the issue of an on-sale bar. For the reasons previously stated, the Court concludes that St. John has failed to present sufficient clear and convincing evidence to create a genuine issue of material fact for trial on whether Ward/Kraft or PHG placed on sale before the critical date medical label sheets embodying the patented design. Accordingly, the Court concludes that PHG is entitled to summary judgment on this issue as the design patents are not invalid due to an on-sale bar. The Court notes that St. John included in its Combined Memorandum in Opposition to PHG's Motion for Summary Judgment and Reply Brief in Support of St. John's Motion for Summary Judgment (Docket Entry No. 210) an argument that PHG's patents are invalid due to the "public use" statutory bar of 35 U.S.C. § 102(b). PHG did not address the "public use" statutory bar as a reason why its design patents are valid. Thus, the Court sees no reason to address St. John's discussion of `the issue in connection with PHG's motion for summary judgment. The Court also will not address the "public use" statutory bar with regard to St. John's own motion for summary judgment because St. John raised the issue for the first time in a reply brief, yet. St. John could have raised the issue in its opening 864 brief and given PHG an opportunity to respond. The Court concludes that St. John's asserted "on-sale" and "public use" defenses must fail. The Court notes, however, that St. John has asserted other affirmative defenses to the patent infringement claims, Counts I and II, which are not addressed in PHG's motion for summary judgment. Thus, although PHG is entitled to summary judgment on the specific issues raised in the instant motion, PHG is not entitled to final entry of summary judgment on its claims of infringement in Counts I and II. 2. Patent infringement PHG next seeks summary judgment in its favor on the patent infringement claims stated in Counts I & II. Whether a design patent is infringed is determined by first construing the claim to the design and then comparing it to the accused design. Elmer, 67 F.3d at 1577; OddzOn Prod., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1404 (Fed.Cir.1997). The Court must determine whether the patented design as a whole is substantially similar in appearance to the accused design. OddzOn Prod., Inc., 122 F.3d at 1405. The patented and accused designs are compared for overall visual similarity. Elmer, 67 F.3d at 1577; Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1376 (Fed.Cir.2002). Comparison of the patented design to the accused design involves two distinct tests, both of which must be satisfied in order to find infringement: (1) the "ordinary observer" test and (2) the "point of novelty" test. Contessa Food Prods., Inc., 282 F.3d at 1376; Payless Shoesource, Inc. v. Reebok Int'l Ltd., 998 F.2d 985, 990 (Fed.Cir.1993); Unidynamics Corp. v. Automatic Prods. Int'l Ltd., 157 F.3d 1311, 1323 (Fed.Cir.1998). The "ordinary observer" test originated in Gorham Co. v. White, 81 U.S. (14 Wall.) 511, 528, 20 L.Ed. 731 (1871): [I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other. Under Gorham the focus is on the overall ornamental appearance of the claimed design, not selected ornamental features. Elmer, 67 F.3d at 1578. Proper application of the Gorham test requires that an accused design be compared to the claimed design, not to a commercial embodiment. Payless Shoesource, Inc., 998 F.2d at 990. The "point of novelty" test requires proof that the accused design appropriates the novelty which distinguishes the patented design from the prior art. Contessa Food Prods., Inc., 282 F.3d at 1377. Although application of the two tests may sometimes lead to the same result, it is legal, error to merge the two tests, for example, by relying on the claimed overall design as the point of novelty. Contessa Food Prods., Inc., 282 F.3d at 1377. The focus of the "point of novelty" test is on those aspects of the patented design that make it different from prior art. Id The ultimate question is whether the effect of the accused design viewed as a whole is substantially the same as the patented design. Payless Shoesource, Inc., 998 F.2d at 991. PHG's claim in the '405 patent is the "ornamental design for the medical label sheet, as shown." Figures 1 and 2 show the front view and front perspective view of the Medical Label Sheet. Figures 3, 5 and 6 show three alternative embodiments of the Medical Label Sheet. PHG's claim in the '197 patent is the "ornamental design for a label pattern for a medical label 865 sheet, as shown." Figures 1 and 2 show the front view and front perspective view of the label pattern for a medical label sheet. As to both patents, PHG identifies the ornamental features of its design as the size and the placement of labels on the medical label sheet. The Court must compare St. John's accused design, viewed as a whole, to the ornamental depiction, claimed in PHG's design patents. The Court is to compare the accused design to the claimed design; the Court is not to compare the claimed design to St. John's commercial embodiment. When properly compared, St. John's accused label design is substantially the same as PHG's patented designs as shown in the '405 and '197 patents. See Payless Shoesource, Inc., 998 F.2d at 991. Additionally, the same configuration of hole punches as shown in the '405 patent at the top and left side of the patented design is found in St. John's accused design as well. An ordinary observer would be unable to identify any differences in St. John's design and PHG's patented design. The substantially identical nature of the designs is likely to deceive ordinary observers, inducing them to purchase St. John's accused product rather than PHG's. St. John's design also appropriates the novelty of PHG's patented design which distinguishes it from the prior art, that is, the different sizes of labels in the bottom two rows and their placement within the overall design. See Contessa Food Prods., Inc., 282 F.3d at 1377. St. John contends that its accused product does not appropriate the "point of novelty" of PHG's patented designs because PHG identifies the "point of novelty" as "the different sizes of labels and their placement on the sheet." St. John reminds the Court that James Riley contributed "most of this supposed `point of novelty' and included it in the prior art PLS-103." (Docket Entry No. 210, Combined Memorandum at 20,) This argument is without merit. The evidence establishes that St. John's design appropriates the "point of novelty" of PHG's patented design which distinguishes it from the prior art, which is the different sizes of labels in the bottom two rows and their placement within the overall design. The evidence is undisputed that the design of Riley's PLS-103 did not include various sizes of labels in the bottom two rows. Rather, the design of the PLS-103 included thirty rectangular labels, 2 ½" × 1" in size, in three rows of ten labels each, which were shifted to the right and down to create room for five 1/4" diameter punch holes along the top of the sheet and seven 1/4" punch holes along the left margin. The evidence shows that Moyer and Stewart conceived of the design which replaces the bottom one row of labels of the PLS-103 with two rows of labels of various sizes. St. John concedes "that the individually removable labels of the St. John product correspond in size and shape to the labels of the patent[ed] design." (Id. at 21.) Thus, St. John's accused design appropriates the "point of novelty" of the '405 and '197 patents. Moreover, the "point of novelty" is primarily ornamental, not functional, as discussed above. Finally, St. John contends that PHG presented the U.S. Patent Office with designs consisting entirely of black lines on a white background. The patent examiner did not see white labels on a white background and did not consider the design patentability of a white-on-white pattern. St. John claims "pit is only if the lines of separation are readily visible, creating substantially the same visual impression as the patent drawings, that the patented design exists. Lines printed on the sheet that have the patented appearance but do not define the shape of removable labels would infringe, but similarly configured actual lines of separation that do not have 866 that appearance do not infringe." (Id.) St. John has not cited any case supporting this argument. As the Court previously noted in its prior opinion, PHG Technologies, LLC, 2005 WL 3301601 at7: Other design patents have employed black lines to indicate the placement of labels on a sheet. (Prelim. Inj. Hr'g, Plaintiffs Collective Ex. 1, "Tab Compatible Divider Label Sheet," Burke; et al. (U.S.Pat. No. Des.423,044); "Print Indicia and Address Label Sheet", Hamilton et al. (U.S. Pat. No. D448,404 S); "Label Form," Sanford et al. (U.S. Pat. No. D473,264 S); "Label Sheet," Hodsdon et al. (U.S. Pat. No. D476,031 S).) Consequently, the Court determines it is improper to compare St. John's product (Prelim. Inj. Hr'g, Plaintiffs Ex. 6) to PHG's product with black lines drawn on it to resemble the drawing in PHG's '405 design patent. (Prelim. Inj. Hr'g, Defendant's Ex. 1.) The critical comparison is the overall design of St. John's medical label sheet to the ornamental depiction contained in PHG's design patents. When compared, St. John's accused design and PHG's patented design are identical. An ordinary observer would be very hardpressed to identify any differences in the two designs. St. John has not generated a genuine issue of material fact for trial on these particular issues raised concerning whether its accused design infringes PHG's patented designs. St. John points out, however, that it has raised other affirmative defenses to infringement, including estoppel, unclean hands, and patent misuse, which have not been addressed by the parties. Because defenses affecting the infringement analysis remain outstanding, PHG has not shown its entitlement to summary judgment on its own Counts I and II or on St. John's Counterclaim Counts I and II. 3. Trademark claims PHG claims that (1) it is entitled to a summary judgment finding its federally-registered "EasyID" trademark is valid, that it is the owner of the mark, and that it has a right to use the mark; (2) it is entitled to summary judgment on the trademark infringement claim stated in Count VII; and (3) it is entitled to summary judgment finding common law trademark infringement, unfair competition, and violation of the Tennessee Consumer Protection Act (Counts VIII, IX & X). The sole evidentiary support PHG offers in support of these claims is the Affidavit of Brian Moyer (Docket Entry No. 149). The Court identifies numerous problems with the Moyer Affidavit which preclude the Court from effectively analyzing the trademark infringement claims. Moyer attests that the trademark is federally registered, ¶ 65, but a copy of the federal registration is not provided. St. John placed a copy of the federal trademark registration into the record. The Moyer Affidavit is replete with self-serving and conclusory statements for which no evidentiary support is provided and for which the basis of Moyer's personal knowledge in making such statements is not explained. Several examples are: ¶ 68, "PHG's EasyID Trademark has been used with its extensively promoted and advertised software and label sheets, and is widely recognized as a source of superior quality and accuracy for patient identification[ ]"; ¶ 69, "In the relative market, namely that for medical label sheets, PHG enjoys exclusive use of the EasyID Trademark, except for the use by infringers now in litigation[]; ¶ 74, "St. John promoted and offered its identical label sheets under the infringing EASY ID name through the same channels 867 of trade for sale to the same claw of purchasers as does PHG for its own products[]"; ¶ 76, "St. John's sales representatives also contacted potential customers by telephone, made on-site presentation, and distributed point of sale materials[ ]"; ¶ 78, "St. John promoted and sold the St. John accused product to customers St. John knew were already using or had used the EasyID brand label sheets[]"; ¶ 83, "St. John used the words `EASY ID' to knowingly promote and sell the accused product to customers of PHG's products[ ]"; and ¶ 85, "St. John intended to select the "EASY ID" mark for its, identical accused product knowing of PHG's extensive use of its "EasyID" Trademark." PHG has not presented any substantive evidence to support these broad allegations, which in some cases appear to mimick legal tests that the Court must apply. There is no evidence of trademark use, advertising or promotion to establish the strength of the mark; of actual confusion of consumgrs in the marketplace, if such evidence exists; of the marketing channels used; or of the likely degree of care exercised by the purchaser. Without evidence, the Court cannot address the eight applicable factors to determine likelihood of confusion as stated in Frisch's Restaurants, Inc. v. Elby's Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir.1982). The paucity of evidence precludes the Court from granting PHG summary judgment on the claims and counterclaims relating to its trademark. Accordingly, the motion will be summarily denied. PHG has not shown its entitlement to summary judgment on Counts VII, VIII, IX and X or on St. John's Counterclaim Counts VII, VIII, IX and X. 4. Implied license Finally, PHG seeks summary judgment on St. John's affirmative defense of implied license. St. John asserted in response to the claims brought against it that because of PHG's conduct in charging certain customers higher prices for computer software if the customers refused to execute sole source agreements for labels, such purchasers of PHG's software acquired an implied license to obtain from any source label sheets that can be used with the PHG software. St. John claims that, as a supplier to such purchasers, St. John enjoyed the benefit of the implied license and is sheltered by the license from claims of infringement by PHG. The case on which St. John relies, Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 463, 58 S.Ct. 288, 82 L.Ed. 371 (1938), is inapposite to the facts of this case. There the Barber Company owned a process patent which defined in the claims of the patent a method of road building. Id. at 460, 58 S.Ct. 288. Leitch Manufacturing Company, Barber's competitor, delivered bituminous emulsion, which is an unpatented material, to a road builder knowing that the material would be used in accordance with the method claimed in Barber's process patent. Id. Leitch contended that Barber's claim for contributory infringement could not survive because if it did, Barber would be allowed to obtain a limited monopoly of an unpatented staple of commerce. Id. The Supreme Court agreed observing that "every use of a patent as a means of obtaining a limited monopoly of unpatented material is prohibited. It applies whether the patent be for a machine, a product, or a process. It applies whatever the nature of the device by which, owner of the patent seeks to effect such unauthorized extension of the monopoly." Id. at 463, 58 S.Ct. 288. Here, by contrast, PHG is the owner of design patents on medical label sheets, but there is no evidence that PHG sought to obtain a limited monopoly on unpatented material. The Court agrees with PHG that the doctrine of implied license applies only 868 to method or combination patents, Lifescan, Inc. v. Polymer Technology Intern. Corp., 35 U.S.P.Q.2d 1225, 1231 (W.D.Wash.1995), and St. John admitted that PHG's '405 and '197 patents are neither method nor combination patents (Docket Entry No. 179, Response to Statement of Undisputed Facts ¶ 76). Moreover, PHG alleges that St. John is a direct infringer under 35 U.S.C. § 271(a) because St. John without authority made, used, or sold a patented invention within the United States during the term of the patent. Thus, "whether or not [PHG's] customers have an implied license to practice the methods claimed in the two patents . . . such a license does not create an implied license for [St. John] to make and sell" the medical label sheets claimed in the '405 and '197 patents. See Lifescan, Inc., 35 U.S.P.Q.2d at 1232 (emphasis, in original). Thus, PHG is entitled to summary judgment on this affirmative defense. III. CONCLUSION St. John's motion for summary judgment on PHG's Counts I & II and St. John's Counterclaim Counts I & II will be denied. St. John has not carried its burden to show by clear and convincing evidence that there is a genuine issue of material fact for trial on its claim that PHG's design patents are invalid due to an on-sale bar. PHG's motion for partial summary judgment will be granted in part and denied in part. The motion will be granted on two patent validity issues: (1) St. John failed to carry its burden to show by clear and convincing evidence that there is a genuine issue of material fact for trial on whether PHG's patented designs are primarily functional, not ornamental; and (2) St. John did not carry its burden to show by clear and convincing evidence that there is a genuine issue of material fact for trial on its claim that PHG's design patents are invalid due to an on-sale bar. PHG's motion will be granted as a matter of law with regard to St. John's affirmative defense of implied license. PHG's motion will also be granted because St. John has not generated a genuine issue of material fact for trial on whether its accused design infringes PHG's patented designs. Because St. John has raised other affirmative defenses to infringement, including estoppel, unclean hands, and patent misuse, which have not' been addressed by the parties and remain outstanding, PHG has not shown its entitlement to summary judgment on its own Counts I and II or on St. John's Counterclaim Counts I and II. PHG's motion will be summarily denied with regard to the trademark claims because PHG has not produced evidence from which the Court can determine whether PHG has shown its entitlement to summary judgment on Counts VII, VIII, IX and X or on St. John's Counterclaim Counts VII, VIII, IX and X. An appropriate Order will be entered. NOTES [1] Despite PHG's request that the Court uphold its prior findings at this later stage of the litigation, the Court cannot do so. The Court's previous factual findings were made following an evidentiary hearing on PHG's motion for a preliminary injunction. Presently before the Court is PHG's motion for summary judgment. As PHG knows, different standards apply in evaluating the evidence placed in the summary judgment record before the Court, and the Court is not permitted to make factual findings in the summary judgment context. [2] The Federal Circuit held that PHG did not show a likelihood of success on the merits because it did not offer testimony refuting the assertions of St. John's CEO, Adam Press, that functional considerations dictated the design, "specifically the `novel feature' of the differently-sized labels being placed at the bottom of the sheet." Id. at 1368. The court also believed that this Court did not make an explicit finding "on whether the alleged alternatives are in fact functionally equivalent (i.e., that the alternatives do not adversely affect the utility of the medical label sheet)[.]" Id. at 1367. [3] Although the Federal Circuit took this Court to task for not addressing the Press Affidavit in its preliminary injunction decision, the Court specifically referenced Mr. Press' similar testimony given at the preliminary injunction hearing:" According to Press, St. John utilized the same design for a medical label sheet as PHG because function is best served in doing so. St. John placed labels for adult and pediatric wristbands at the bottom of the label sheet, as did PHG, because a wristband label logically is removed first when admitting the patient to the hospital. Moreover, the wristband label is easier to remove from the backing sheet when it is placed at the bottom edge. Chart labels are arranged in three rows of nine starting at the top of the sheet because the die cuts are easier and cheaper to make. PHG Technologies, LLC, 2005 WL 3301601 at *3.	{ "pile_set_name": "FreeLaw" }
537 F.Supp. 1387 (1982) Vaughn E. PERRY, Jr., Plaintiff, v. The HARTZ MOUNTAIN CORPORATION, Defendant. No. IP 81-631-C. United States District Court, S. D. Indiana, Indianapolis Division. April 28, 1982. 1388 C. Robert Knight, Samuel A. Fuller, Indianapolis, Ind., for plaintiff. Gregory B. Craig, Washington, D. C., Joe C. Emerson, Indianapolis, Ind., for defendant. ENTRY DILLIN, District Judge. This case is before the Court on the motion to dismiss of the defendant, Hartz Mountain Corporation (Hartz). For the reasons stated below, the motion is granted in part and denied in part. Facts The plaintiff, Vaughn E. Perry, Jr., was employed by Hartz from September 1975 to June 14, 1979, when he was discharged. Perry accuses Hartz of certain anticompetitive practices. He alleges that his dismissal was in retaliation for his refusal to continue his participation in those practices and deliver evidence of them to Hartz. Hartz contends that Perry was fired because he defrauded the corporation and refused to cooperate in an in-house investigation of company practices. Perry filed suit on June 12, 1981, properly invoking jurisdiction under 28 U.S.C. §§ 1331 and 1332. He alleges (1) that he was wrongfully discharged, (2) that Hartz violated state and federal antitrust laws, (3) that Hartz negligently breached its duty of good faith and fair dealing, (4) that Hartz was guilty of outrageous conduct toward him, and (5) that Hartz defamed him. Hartz has moved to dismiss each of these claims for failure to state a claim upon which relief can be granted. Discussion I. Wrongful discharge Hartz contends that Perry has failed to state a claim for wrongful discharge because he was an employee at will who could be discharged at any time. Indiana has long subscribed to the employment at will doctrine, which holds that an employment at will relationship can be terminated at any time by either party. Speeder Cycle Co. v. Teeter, 18 Ind.App. 474, 48 N.E. 595 (1897). A modification of the doctrine occurred fairly recently in Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973). In that case the Indiana Supreme Court recognized an exception to the employment at will doctrine and allowed a cause of action for wrongful discharge by an employee who was dismissed in retaliation for exercising a statutorily conferred right filing a workmen's compensation claim. 1389 In a case construing the Frampton rule, Campbell v. Eli Lilly & Co., Ind.App., 413 N.E.2d 1054 (1980), transfer denied, 421 N.E.2d 1099 (Ind.1981), the Indiana Court of Appeals equated exercising a statutorily conferred right with fulfilling a statutorily imposed duty, and stated that discharge in retaliation for either falls within the exception. However, the Court of Appeals found that the plaintiff, who charged that he was fired for reporting misconduct in drug research to company officials, had failed to establish either that he had exercised a statutory right or fulfilled a statutory duty. Id., 413 N.E.2d at 1059. In this case, on the other hand, Perry is under a statutory duty to refrain from engaging in conspiracies in restraint of trade. 15 U.S.C. § 1; I.C. 24-1-2-1. By alleging that Hartz discharged him for refusing to continue his participation in an anticompetitive conspiracy, Perry has stated a claim which falls within the Frampton-Campbell exception to the employment at will doctrine. On the wrongful discharge claim, therefore, Hartz's motion to dismiss is denied. II. Federal and state antitrust violations In Counts II and III of his complaint, plaintiff alleges that Hartz violated state and federal antitrust laws by, among other things, inducing retailers to deal exclusively with Hartz through payoffs and fraudulent credits and attempting to establish tying arrangements between Hartz's pet care and carpet care products. Hartz responds that Perry has no standing to assert these antitrust claims. Section 4 of the Clayton Act, 15 U.S.C. § 15, allows "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws" to bring a private action. A literal interpretation of this section could lead to a flood of litigation by plaintiffs only indirectly affected by anticompetitive activities. Courts have approached the statutory language in various ways, seeking to make the right-to-sue standard manageable, yet still consistent with the purposes of the antitrust laws. See, e.g., Bravman v. Bassett Furniture Industries, Inc., 552 F.2d 90 (3rd Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 69, 54 L.Ed.2d 80 (1977) (balancing test); Malamud v. Sinclair Oil Corp., 521 F.2d 1142 (6th Cir. 1975) (zone of interests test); Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10th Cir.), cert. denied, 411 U.S. 938, 93 S.Ct. 1900, 36 L.Ed.2d 399 (1973) (direct injury test); Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir. 1970), cert. denied, 402 U.S. 923, 91 S.Ct. 1377, 28 L.Ed.2d 662 (1971) (reasonable foreseeability test); Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358 (9th Cir. 1955) (target area test). In the Seventh Circuit the prevailing approach is the target area test, which provides that to state an antitrust claim a plaintiff must allege injury which is within the area affected, or intended to be affected, by the defendant's anticompetitive actions. Illinois v. Ampress Brick Co., 536 F.2d 1163, 1167 (7th Cir. 1976), rev'd on other grounds sub nom. Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977); In re Folding Carton Antitrust Litigation, 88 F.R.D. 211, 218 (D.C.N.D.Ill.1980). See Weit v. Continental Illinois Nat'l Bank & Trust Co., 641 F.2d 457, 469 (7th Cir. 1981); Lupia v. Stella D'Oro Bisquit Co., 586 F.2d 1163, 1168-69 (7th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979). As the Seventh Circuit Court of Appeals noted in Weit and Lupia, this test is sometimes thought of in terms of standing, and at other times as requiring that direct injury be alleged. The distinction between these two theories is vague at best, and, in this case at least, is of little or no importance. "The fundamental requirement is that plaintiffs establish a sufficient nexus between the defendant's alleged actions and an injury to plaintiffs." Weit, 641 F.2d at 469. The Lupia and Weit cases illustrate how this requirement may be applied. In Lupia, the plaintiff, a food distributor, alleged that the defendant, a wholesaler, violated the antitrust laws by granting certain retail outlets a discount and charging it to the 1390 plaintiff. In Weit, bank charge card holders brought suit alleging that the defendant banks had conspired to fix the interest rates charged for extended payments. In each case the Seventh Circuit held that the plaintiffs failed to establish that they were directly affected by the defendants' anticompetitive acts. In Lupia, only retailers who were not given the discount were within the target area. In Weit, only the charge card customers of a particular defendant bank were directly affected not the plaintiffs, customers of another bank who sought to represent the other customers through a class action. These cases are analogous to the present one. Perry has alleged that Hartz utilizes illegal tactics against retailers to gain control of the market for its products. Perry's injury, the loss of his job, is not a direct result of Hartz's alleged anticompetitive activities. Only the retailers subjected to Hartz's alleged practices could claim direct injury. Only they are in the target area, and Perry may not sue Hartz as their surrogate. The Court is aware that a panel of the Ninth Circuit Court of Appeals, which was a leader in developing the target area test, see In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122 (9th Cir.), cert. denied, 414 U.S. 1045, 94 S.Ct. 551, 38 L.Ed.2d 336 (1973), has recently forsaken that approach. In Ostrofe v. H.S. Crocker Co., 670 F.2d 1378 (9th Cir. 1982), the panel majority permitted an employee who alleged he was pressured to resign in retaliation for refusing to take part in anticompetitive practices to bring an antitrust suit against his employer. The decision was based almost exclusively on policy grounds, and it is not without its appeal. However, as Judge Kennedy's strong dissent notes, the Ostrofe decision is a striking departure from established precedent in its own, and this, circuit. Without an indication that the Seventh Circuit would join in this departure, this Court will not presume to alter this circuit's settled approach. Perry has not shown that he was in the target area of Hartz's alleged anticompetitive practices. Therefore, his federal antitrust claim is dismissed. Perry also lacks standing under state antitrust law. The Indiana Antitrust Act, particularly I.C. 24-1-2-1 and 24-1-2-2, is patterned after the Sherman Act. Photovest Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980); Orion's Belt, Inc. v. Kayser-Roth Corp., 433 F.Supp. 301 (D.C.S.D.Ind.1977); Citizens Nat'l Bank v. First Nat'l Bank, 165 Ind. App. 116, 331 N.E.2d 471 (1975). Federal case law has been consulted in interpreting the Indiana statute. Citizens Nat'l Bank, 331 N.E.2d at 478-79. Although the standing issue in Citizens Nat'l Bank is not factually analogous, the court's adherence to the direct-injury requirement, id. at 478-79, supports the notion that federal and state standing tests are essentially the same. Therefore, for the same reasons stated in the discussion of federal antitrust standing, Perry's state antitrust claim is also dismissed. III. Negligent breach of the duty of good faith In Count IV of his complaint, Perry alleges that Hartz's acts constituted a negligent breach of its duty of good faith and fair dealing. Indiana does not recognize that such a duty is owed by an employer to an employee at will. See Campbell v. Eli Lilly Co., Ind.App., 413 N.E.2d 1054, 1066-67 (1980) (Ratliff, J., concurring in part and dissenting in part). For that reason, Count IV is dismissed. IV. Outrageous conduct/intentional infliction of emotional distress Count V alleges that Hartz is guilty of outrageous conduct toward Perry; it is essentially an accusation of intentional infliction of emotional distress. See Restatement (Second) of Torts § 46 (1965). The general rule in Indiana is that claims for emotional distress are not recognized unless the distress is accompanied by a physical injury. Charlie Stuart Oldsmobile, Inc. v. 1391 Smith, 171 Ind.App. 315, 357 N.E.2d 247, 253-54 (1976), on reh. 369 N.E.2d 947 (1977). This rule has one exception: an action for emotional distress unaccompanied by physical injury is permitted when a legal right is invaded in such a way as to "provoke an emotional disturbance." Examples of actions which have been held to fit within this exception are ones for false imprisonment, assault, abduction, wrongful ejection, seduction, and unauthorized autopsy. Id. Although the question of damages for emotional distress has not been considered by an Indiana court in the context of an action charging a retaliatory discharge, this Court believes that the question, if presented, would be resolved in favor of the employee and thus constitute another exception to the general rule. This inference follows from the following language contained in Frampton, supra: We further hold that such a [retaliatory] discharge would constitute an intentional, wrongful act on the part of the employer for which the injured employee is entitled to be fully compensated in damages. To be "fully compensated" is taken by this Court to mean to be compensated for any and all injuries which are proximately caused by the wrongful act. Therefore, if a plaintiff is able to prove by a preponderance of the evidence both that he was the victim of a retaliatory discharge, and that he suffered emotional distress as a result thereof, he should be able to include such element in his measure of damages. However, we fail to perceive that Count V states a tort separate and distinct from that alleged in Count I. The wrongful act allegedly committed by the defendant is to have discharged the plaintiff for an impermissible reason. The emotional distress allegedly suffered is just one of various consequences of that act. For such reason, Count V is surplusage and is dismissed. On trial, the plaintiff will be permitted to attempt to prove emotional distress as a proximate result of wrongful discharge. V. Defamation In Count VI Perry alleges that Hartz defamed him by stating that he was "fired for stealing." There is no indication as to when, where, or to whom the statement was made. As a result, the allegation falls short of stating a claim. Under the prevailing rule in the Seventh Circuit, averments of time and place are material elements of a claim. Kincheloe v. Farmer, 214 F.2d 604 (7th Cir. 1954), cert. denied, 348 U.S. 920, 75 S.Ct. 306, 99 L.Ed. 721 (1955). Observance of this rule helps ensure that a defendant is given a clear idea of the allegations made against him and that the relevance of threshold questions such as those involving statutes of limitations and conflict of laws may be evaluated. Because Perry's defamation claim lacks sufficient allegations as to time and place, it is dismissed with leave to amend. VI. Equitable relief for state antitrust violations Count VII of the complaint requests a decree of ouster under I.C. 24-1-2-5 as a remedy for Hartz's alleged violations of Indiana antitrust law. This count must be dismissed for two reasons: first, as explained in section II of this entry, Perry lacks standing to bring an antitrust suit against Hartz, and second, I.C. 24-1-2-5 authorizes civil suits for violations of the antitrust statute only in the name of the state upon the relation of the proper party, a requirement with which Perry has not complied. Summary Hartz's motion to dismiss is denied as to Count I, but granted as to all other counts of the complaint.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1812 DANI WALTER AYALA-ARDON, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: February 23, 2011 Decided: March 16, 2011 Before GREGORY, SHEDD, and WYNN, Circuit Judges. Petition dismissed by unpublished per curiam opinion. Dani Walter Ayala-Ardon, Petitioner Pro Se. Ada Elsie Bosque, Theo Nickerson, Tyrone Sojourner, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Raphael Choi, Chief Counsel, Arlington, Virginia, for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dani Walter Ayala-Ardon, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals dismissing his appeal in part and remanding in part to the Immigration Judge for further proceedings and for entry of a new decision. Because the Board’s order is not a final order of removal, we grant the Attorney General’s motion to dismiss without prejudice for lack of jurisdiction. See 8 U.S.C. § 1252(a)(1) (2006). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DISMISSED 2	{ "pile_set_name": "FreeLaw" }
686 So.2d 83 (1996) ALLIANCE FOR GOOD GOVERNMENT, INC. v. ST. BERNARD ALLIANCE FOR GOOD GOVERNMENT, INC. No. 96-CA-0635. Court of Appeal of Louisiana, Fourth Circuit. December 18, 1996. 84 Peter R. Borstell, Gretna, for Plaintiff/Appellant. Mary Beoubay Petruccelli, Tracy Ann Petruccelli, Law Offices of Mary Beoubay Petruccelli, Chalmette, for Defendant/Appellee. Before CIACCIO, PLOTKIN and LANDRIEU, JJ. LANDRIEU, Judge. The Alliance for Good Government[1] appeals the trial court's denial of its Petition for Permanent Injunction which sought to enjoin defendant, St. Bernard Alliance for Good Government, Inc., from using the name "Alliance for Good Government." We reverse. The Alliance for Good Government (AGG) filed a petition for a temporary restraining order and a rule for preliminary injunction against the St. Bernard Alliance for Good Government, Inc. (St. Bernard AGG), alleging that, since 1967, AGG has been an organization of concerned citizens which holds forums to endorse candidates and then advertises and campaigns for endorsed candidates. AGG also alleged that, since 1979, it has used a logo consisting of a blue eagle with stretched wings bearing the words, "Alliance for Good Government", which it registered with the Secretary of State's office on March 24, 1995. The petition stated that in March 1987, AGG established a chapter in St. Bernard parish and has endorsed and campaigned for candidates running for office in St. Bernard parish since then. AGG asserted that on March 10, 1995, former members of its organization incorporated the defendant corporation, St. Bernard AGG, registering their corporation with the Secretary of State. AGG claims to have exclusive use of its name and emblem pursuant to La.Rev.Stat. Ann. § 12:204(E) (West 1994), and claims that it suffers and would continue to suffer immediate and irreparable injury because St. Bernard AGG's use of its name and logo confuses the public. The trial judge denied AGG's request for a temporary restraining order, and, after a hearing, orally refused to issue a preliminary injunction. After trial on AGG's request for a permanent injunction shortly afterwards, the trial judge rendered judgment, denying AGG's petition to enjoin St. Bernard AGG from using the corporate name, "Alliance for Good Government, Inc." and granting AGG's petition to enjoin St. Bernard AGG from using the emblem and/or logo consisting of a blue eagle with stretched wings bearing the words, "Alliance for Good Government, Inc." AGG appeals the judgment, arguing that the trial judge abused his discretion in refusing to enjoin St. Bernard AGG from using the corporate name "Alliance for Good Government." Under Louisiana jurisprudence, the registration of a trade name confers only procedural advantages; substantive rights of ownership are acquired through use. W.V., Inc. v. Covington Management Corp., 529 So.2d 133 (La.App. 4 Cir.1988). Hence, although St. Bernard AGG correctly states that it is La.Rev.Stat. § 12:204 rather than La.Rev.Stat. Ann. § 12:23 (West 1994), which is relevant in this case because two non-profit corporations are involved, La.Rev.Stat. § 12:204 does not resolve the issue in this appeal. La.Rev.Stat. § 12:204 B provides in part: 85 The corporate name shall be distinguishable from a name reserved pursuant to R.S. 12:23(G) and shall be distinguishable from the name of any other corporation or trade name registered with the secretary of state .... (emphasis added) Further, La.Rev.Stat. § 12:204 C provides: Nothing in this Section shall abrogate or limit the law as to unfair competition or unfair practices, nor derogate from the principles of law or the statutes of this state or of the United States, with respect to the right to acquire and to protect trade names. Therefore, the statutory/procedural rule relating to corporate names for nonprofit corporations, i.e. that they be distinguishable from other corporate names, is more relaxed than "for profit" corporations, i.e. that they shall not be the same as, nor deceptively similar to, the name of any other corporation. However, with regard to substantive law on corporate names, the jurisprudence provides no reason, nor can we derive sound reasoning for, distinguishing between "for profit" and non-profit corporations. Indeed, in Gulf Coast Bank v. Gulf Coast Bank & Trust Co., 94-2203 (La.4/10/95), 652 So.2d 1306, the supreme court concluded that the substantive protection of trade names was not within the "Trade Marks and Trade Names" statutory scheme. Chinchuba Inst. v. St. Tammany Parish Bd., 95-0419 (La. App. 1 Cir. 11/9/95), 664 So.2d 1230. Thus, the court in Chinchuba, dismissed the argument that a public school infringes on the use of a registered trade name only if it uses the name for a commercial purpose, concluding that Chinchuba Institute, a private school for the deaf, was a "person" within the definition of "trade name" of La.Rev.Stat. Ann. § 51:211(D) (West 1987) who was entitled to seek injunctive relief to preclude the subsequent use by the school board of the name "Chinchuba" for one of its public schools. La.Rev.Stat. § 51:211(D) states: The term "trade name" means a word, name, symbol, device or any combination thereof used by a person to identify his business, vocation or occupation and distinguish it from the business, vocation or occupation of others. "Alliance for Good Government" easily falls under the definition of "trade name," and clearly AGG as a "person" within this definition is entitled to seek injunctive relief regardless whether the parties are "for profit" or non-profit or whether the name is used for commercial purposes or not. The legislature intended there to be a cause of action for infringement of trade names and remedies under the jurisprudentially developing law relating to trade names as part of the law of unfair competition. Gulf Coast Bank, 652 So.2d at 1312. In a trade name infringement action, the primary issues are whether the plaintiff has a protected property right in the name it seeks to exclude others from using, and assuming that there is such a protected property right, whether there has been an infringement of that right. Seafood Restaurant Services, Inc. v. Bonanno, 95-0058 (La.App. 1 Cir. 11/9/95), 665 So.2d 56, 59. Use alone does not create a protected proprietary interest; the trademark or trade name must be distinctive either by being inherently distinctive or by having acquired distinctiveness through secondary meaning. Gulf Coast Bank, 652 So.2d at 1313-1314. To determine distinctiveness, courts have divided trademarks and trade names into categories: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. Id. While generic terms are "in the public domain," not susceptible to appropriation for exclusive use, and not given trademark or trade name protection, arbitrary and fanciful marks or names, like suggestive ones, are inherently distinctive and are accorded protection without having to prove secondary meaning. Id. In this case, AGG wants to prevent the use of the trade name "Alliance for Good Government" by another political organization. While the name does not easily fall within one of the categories listed above because each of the words separately falls into a different category, we believe that when the name is considered as a whole, it is descriptive. Though ordinarily not protected, a descriptive name may become a valid, 86 protected trade name if it acquires a secondary meaning. Id. The concept of "secondary meaning" recognizes that words with an ordinary or primary meaning of their own, may, by long use with a particular product, service or business, come to be known by the public as specifically designating that particular product, service or business, and therefore rise to the level of a fully protected trademark or trade name. The burden of proving secondary meaning is on the plaintiff, and whether a trademark or trade name has acquired secondary meaning is a factual issue. Id. Proof of secondary meaning may consist of, among other things, direct evidence such as testimony from individual consumers, surveys, proof of actual instances of confusion, or indirect evidence such as the volume of business done under the name, the length of time the designation has been in use, advertising and promotional efforts, and the conspicuousness of the designation. Id. In the instant case, the only testimony about confusion came from State Senator Lynn Dean who also said that he would rather be endorsed by AGG than by St. Bernard AGG because the former was an older organization. We recognize, as AGG pointed out in oral argument, that AGG is constrained in presenting actual instances of confusion because at the time of the injunction hearing on September 6, 1995, the St. Bernard AGG and the St. Bernard chapter of AGG co-existed in St. Bernard parish only for a few months. Political organizations usually are active only at election time, hence it is unlikely that public confusion will be an issue when these groups are not visible. Indirect evidence, however, consisted of testimony that AGG was incorporated in 1967 and had an active chapter in St. Bernard parish since 1987. Apparently AGG, as well as its St. Bernard chapter, has been soliciting candidates for its forums, making endorsements, advertising and campaigning for candidates since inception. Given the length of time that AGG has been in existence, there is obviously a great amount of name recognition and/or goodwill associated with the name "Alliance for Good Government." Overall, the record clearly supports a finding that the use by AGG of "Alliance for Good Government" acquired a secondary meaning. Because it is established that AGG has a protected proprietary right in its name, we must now determine whether there had been an infringement of AGG's protected right. The Louisiana Supreme Court held that where one relies on secondary meaning to establish the distinctiveness of its name, in order to enjoin another's use of a similar name, fraud need not be proven, but rather there need only be a likelihood of consumer confusion. Gulf Coast Bank, 652 So.2d at 1319-1320. Actual confusion is the best evidence of likelihood of confusion. Seafood Restaurant Services, 665 So.2d at 60. Other factors which may be relevant include similarity of products, identity of retail outlets and purchasers, identity of advertising media, strength or distinctiveness of the mark or name, defendant's intent, and similarity of design. Falcon Rice Mill, Inc. v. Community Rice Mill, Inc., 725 F.2d 336, 345 (5th Cir.1984). As noted above, in this case there was little testimony about actual confusion. Indeed, most of the testimony centered on explaining what caused the schism among the members of AGG. What can be discerned from the record is that members of AGG broke off from AGG in 1995 and quickly incorporated as St. Bernard AGG. At roughly the same time, AGG dissolved its St. Bernard chapter. Later, AGG apparently re-established its St. Bernard chapter so that at the time of the hearing in the trial court, AGG could produce a current list of its St. Bernard chapter members. Therefore, currently the St. Bernard chapter of AGG and St. Bernard AGG are performing the same activities, in the same parish, using virtually indistinguishable names. Without a doubt, the potential for confusion exists, and indeed it may be presumed because the two organizations operate in the same geographic area. Another relevant factor is the intent of St. Bernard AGG. Prominently using AGG's recognizable logo, as well as the name, obviously 87 indicates that St. Bernard AGG intended to capitalize on the goodwill and/or name recognition of AGG. The trial judge, by enjoining St. Bernard AGG's use of the logo, however, does not eliminate the likelihood of confusion among the public at election time regarding the names of these two political organizations. Accordingly, the judgment of the trial court denying AGG's request for a permanent injunction as to the name of defendant's organization is reversed. AGG has proven that it has a protected proprietary interest in its name, and St. Bernard AGG has infringed upon that interest. We remand this case to the district court for further proceedings consistent with this opinion. All costs of this appeal are assessed to St. Bernard AGG. REVERSED AND REMANDED. NOTES [1] Although plaintiff identifies itself as Alliance for Good Government, Inc., its name as registered with the Secretary of State is Alliance for Good Government.	{ "pile_set_name": "FreeLaw" }
540 U.S. 842 JAMESv.BOYETTE, CORRECTIONAL ADMINISTRATOR I, NASH CORRECTIONAL INSTITUTION. No. 02-10903. Supreme Court of United States. October 6, 2003. 1 Appeal from the C. A. 4th Cir. 2 Certiorari denied. Reported below: 55 Fed. Appx. 673.	{ "pile_set_name": "FreeLaw" }
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE, ) ) V. ) ID No. 1206001558 ) ONEIL ROSE, ) ) Defendant. ) ORDER This 16th day of September, 2019, upon consideration of Defendant Oneil Rose’s (“Defendant”) pro se Motion for Postconviction Relief (the “Motion”),' the Court finds: 1. Defendant’s Motion is a third motion for postconviction relief pursuant to Delaware Superior Court Rule 61 (“Rule 61”). Defendant filed his second Rule 61 motion on April 20, 2016, which was denied.? 2. Rule 61(d) explicitly bars successive motions and states that no second or subsequent postconviction motion is permitted unless the movant was convicted after a trial and the motion either: (i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or (ii) \| pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States 'DI. 96. 7D. 95. Supreme Court or the Delaware Supreme Court, applies to the movant’s case and renders the conviction or death sentence invalid. 3. Defendant asserts three grounds for relief, only one of which asserts actual innocence on the basis of new evidence or new retroactively applicable law. Ground One (1) asserts that new evidence creates a strong inference that Defendant is actually innocent of Possession of a Firearm By a Person Prohibited. The remaining claims are procedurally barred. DE Super. Ct. R.61(d)(2). 4. Defendant’s “new evidence” consists of a written decision by an Immigration Judge in Defendant’s 2005 removal proceedings. Defendant relies on language in the decision that discusses the insufficiency of evidence, in that proceeding, to establish that Defendant was convicted of an aggravated felony in the immigration context. 5. However, the Immigration Judge conducted a tailored analysis to determine if a conviction under Delaware criminal law qualifies as an aggravated felony solely for the purposes of removal under federal immigration law. That analysis was purely legal because Immigration Judges are restricted from considering the underlying facts of the case, and must conform their analysis only to statutory language and conviction documents. Mathis vy. United States, 136 S. Ct. 2243, 2248 (U.S. 2016). 6. Here, Defendant was previously convicted of Assault in the Second Degree on July 30, 2004, which is a qualifying felony to prohibit a person from thereafter owning or possessing a firearm. 7. Defendant appears to challenge his person prohibited status on the basis that his prior Assault Second conviction did not satisfy the requirements to earn him a subsequent person prohibited status. 8. Defendant incorrectly concludes that the Immigration Judge’s finding, that Defendant’s Assault conviction does not qualify as a crime of violence in the immigration removal context, means that the crime should not be a crime of violence that triggers 11 Del.C. §1448(a)(1), Possession of a Firearm by a Person Prohibited. Assault in the Second Degree is a Class D Felony under Delaware Criminal Law, which makes it a qualifying conviction for purposes of establishing Defendant as a person prohibited. 9. Therefore, the written decision does not raise a strong inference of Defendant’s innocence, because the Immigration Judge did not consider any of the factual evidence from Defendant’s conviction and did not establish that 11 Del.C. § 612 Assault in the Second Degree is a non-qualifying crime under 11 Del.C. §1448(a)(1). For the foregoing reasons, Defendant’s Motion for Postconviction Relief is / f DENIED. / IT IS SO ORDERED. AL “SheldorrK. Rennie, Judge Original to Prothonotary cc: Oneil Rose (SBI #00511629)	{ "pile_set_name": "FreeLaw" }
ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 13,2003 The Honorable Dib Waldrip Opinion No. GA-0034 Coma1 County Criminal District Attorney 150 North Seguin, Suite 307 Re: Whether a county may require the owner of New Braunfels, Texas 78 130 a “junked vehicle” to erect a fence or other screening objects in order to shield the vehicle from public view (RQ-0605-JC) Dear Mr. Waldrip: You ask whether a county may require the owner of a “junked vehicle” to erect a fence or other screening objects in order to shield the vehicle from public view. Subchapter E, chapter 683 of the Transportation Code addresses the abatement of junked vehicles as a public nuisance. Section 683.072 provides, in relevant part, that “[a] junked vehicle, including part of a junked vehicle, that is visible from a public place or public right-of-way . . . is a public nuisance.” TEX. TRANSP. CODE ANN. 4 683.072(7) (Vernon 1999) (emphasis added). Section 683.071 of the Transportation Code defines “junked vehicle”: In this subchapter, “junked vehicle” means a vehicle that is self-propelled and: (1) does not have lawfully attached to it: (A) an unexpired license plate; or w a valid motor vehicle inspection certificate; and (2) is: (4 wrecked, dismantled or partially dismantled, or discarded; or (B) inoperable and has remained inoperable for more than: The Honorable Dib Waldrip - Page 2 (GA-0034) (i) 72 consecutive hours, if the vehicle is on public property; or (ii) 30 consecutive days, if the vehicle is on private property. Id. 0 683.071 (Vernon Supp. 2003). Under section 683.073 of the Transportation Code, the offense of maintaining “a public nuisance described by section 683.072” is “a misdemeanor punishable by a fine not to exceed $200.” Id. 8 683.073(a)-(b) (V emon 1999). Upon conviction, the court must “order abatement and removal of the nuisance.” Id. 9 683.073(c). Additionally, pursuant to section 683.074, a municipality or county is empowered to “adopt procedures that conform to this subchapter for the abatement and removal from private or public property or a public right-of-way of a junked vehicle or part of a junked vehicle as a public nuisance.” Id. 4 683.074(a) (Vernon Supp. 2003). Sections 683.074, 683.075, and 683.076 describe the procedures a county must follow in order to abate and remove the nuisance, including notice, public hearing, judicial orders, and cancellation of the vehicle’s certificate of title. Section 683.078 governs removal of a junked vehicle to “a scrapyard, a motor vehicle demolisher, or a suitable site operated by a municipality or county.” Id. 6 683.078(a) (Vernon 1999). You ask whether a county, pursuant to its authority to abate and remove a “junked vehicle” as a nuisance, may impose fencing and screening requirements. A junked vehicle may be classified as a “public nuisance” subject to abatement and removal under subchapter E, chapter 683 of the Transportation Code, onZy if it “is visible from a public place or public right-of-way.” Id. 8 683.072. We must therefore consider the meaning of the term “visible.” The term is not defined by statute or Texas case law. According to its common usage, “visible” means “capable of being seen; that by its nature is an object of sight; perceptible by the sense of sight.” XIX OXFORDENGLISHDICTIONARY687 (2d ed. 1989). See TEX. GOV’TCODE ANN. $3lLOll(a)(V emon 1998) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.“). The few out-of-state judicial decisions that have considered the meaning of “visible” accord with this definition. See, e.g., StriefeZ v. Charles-ikyt- Leaman P ‘ship, 733 A.2d 984,990 (Me. 1999) (“‘Visible’ means capable of being seen by persons who may view the premises.“); Colonial Trust v. Breuer, 69 A.2d 126, 129 (Pa. 1949) (“‘Visible’ means perceivable by the eye . . . .“1; Tritt v. Judd k Moving & Storage, Inc., 574 N.E.2d 1178,1185 (Ohio App. 3d 1990) (“Visible means perceivable by the eye.“). Thus, in order to avoid classification as a “public nuisance” under section 683.072 of the Transportation Code, a junked vehicle or a part thereof, need only be non-visible from a public place or public right-of-way. No particular kind of camouflage is required by the statute to render the vehicle non-visible. Consequently, a county may not compel the owner of a junked vehicle to erect fencing, trees, shrubbery, or any other specific kind of screening. In order to abate and remove the nuisance, the county must demonstrate that a junked vehicle “is visible from a public place or public right-of-way,” i.e., capable of being seen from such location. Whether any particular form of camouflage is sufficient in a given instance to render a junked vehicle non-visible is of course a question of fact for the county to determine in the first instance. The Honorable Dib Waldrip - Page 3 (GA-0034) You also ask whether a county may import the fencing and screening requirements applicable to automotive salvage yards and junkyards to vehicles parked on other private property. Section 396.021(b) of the Transportation Code provides, in relevant part: (b) A person who operates a junkyard or an automotive wrecking and salvage yard shall screen the junkyard or automotive wrecking and salvage yard with a solid barrier fence at least eight feet high. The fence must be painted a natural earth tone color and may not have any sign appear on its surface other than a sign indicating the business name. (c) A person who operates a junkyard or an automotive wrecking and salvage yard in a county with a population of 200,000 or less shall screen the junkyard or automotive wrecking and salvage yard to at least six feet in height along the portion of the junkyard or automotive wrecking and salvage yard that faces a public road or residence. The person may screen the yard by any appropriate means, including: (1) a fence; (2) natural objects; or (3) plants.’ TEX. TRANSP. CODE ANN. 9 396.021(b)-(c) (Vernon 1999). The fencing and screening standards applicable to junked vehicles in the possession of licensed automotive salvage yards and junkyards under chapter 396 are not applicable to junked vehicles maintained by individuals or businesses that do not fall within that category. In addition, subchapter E, chapter 683 of the Transportation Code, which, as previously discussed, addresses the abatement ofjunked vehicles as a public nuisance, is specifically inapplicable to a vehicle or vehicle part “that is stored or parked in a lawful manner on private property in connection with the business of a licensed vehicle dealer or junkyard,” provided that the vehicle or vehicle part is, inter alia, “screened from ordinary public view by appropriate means, including a fence, rapidly growing trees, or shrubbery.” Id. 6 683.077(a)(2)(C) (V emon Supp. 2003). Licensed automotive salvage yards and junkyards must follow the fencing and screening requirements of section 396.012(b). Individuals not embraced within the ambit of chapter 396 need only render a junked vehicle non-visible from a public place or public right-of-way. ‘Section 396.021 does not apply to automotive wrecking and salvage yards covered by chapter 397 of the Transportation Code, i.e., those in a county with a population of 3.3 million or more, not located in a municipality in that county, and established on or after September, 1983. See TEX. TRANSP. CODE AN-N. ch. 397 (Vernon 1999 & Supp. 2003). The Honorable Dib Waldrip - Page 4 (GA-0034) SUMMARY A county may abate and remove as a “public nuisance” any “junked vehicle” that is visible from public or private property or a public right-of-way. A county may not require a particular kind of camouflage to render the vehicle non-visible. The fencing and screening standards applicable to licensed automotive salvage yards and junkyards under chapter 396 of the Transportation Code do not apply to junked vehicles parked on other private property. Very tru.ry yours, AttomegLrB’eneral of Texas BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General - General Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 6-12-2008 Kiselev v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 07-2773 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Kiselev v. Atty Gen USA" (2008). 2008 Decisions. Paper 1029. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1029 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 07-2773 MARINA KISELEV; VICTOR KISELEV; ROMAN KISELEV, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A98-580-533; A98-580-534; A98-580-536) Immigration Judge: Honorable R.K. Malloy Submitted Pursuant to Third Circuit LAR 34.1(a) June 12, 2008 Before: FUENTES, ALDISERT and GARTH, Circuit Judges (Opinion filed: June 12, 2008) OPINION PER CURIAM Marina, Victor, and Roman Kiselev petition for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition. I. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented here for review. To summarize briefly, petitioners are, save for the youngest Roman who is both a native and citizen of Israel, a family of Ukrainian natives and citizens of Israel. Petitioners entered the United States legally, and after overstaying their visitor visas, were placed in removal proceedings in November 2004. Marina Kiselev (“Kiselev”), the lead respondent below, applied for relief from removal in an asylum application, and accompanying affidavit, filed on September 17, 2004.1 In her application, Kiselev alleged that she was persecuted in the Ukraine (formerly Russia) because of her Jewish heritage. The application alleged no instances of persecution involving the remaining Kiselev family members. On November 5, 2004, Kiselev attended an asylum office interview and confirmed her account of persecution in the Ukraine. At a master calendar hearing on June 7, 2005, the Kiselevs conceded that they were removable as charged under INA § 237(a)(1)(B). Kiselev filed another Form I-589 and accompanying affidavit at this time. In this second claim for asylum, Kiselev claimed that instead of being persecuted in Russia, the family was actually persecuted in Israel where they had lived prior to coming the United States. Asked to explain the disparity between her two applications, Kiselev described an 1 Marina listed her husband, Victor, and sons, Igor and Roman, as derivatives on her application. See 8 C.F.R. § 208.3(a). “While our opinion refers to the primary applicant, it is understood to include the derivative applicant as well.” Al-Fara v. Gonzales, 404 F.3d 733, 736 n.1 (3d Cir. 2005) -2- encounter with an attorney named “David” who led her to believe that if she mentioned her experience in Israel she would not be granted asylum in the United States. Kiselev alleged that “David” instructed her to lie in this regard and, for this reason, Kiselev also conceded not being truthful during her asylum office interview. After a hearing at which Marina and Igor Kiselev testified,2 the Immigration Judge (“IJ”) denied the various applications for relief and ordered the Kiselevs removed to Israel. In her oral decision, the IJ noted that Marina Kiselev’s story concerning “David” was credible and took judicial notice that such an attorney had been providing similar advice to former residents of Eastern Europe and Russia in particular. The IJ determined, however, that the remainder of Marina Kiselev’s testimony was not credible. The IJ also found, in the alternative, that even if Kiselev were credible she had not established past persecution or a well-founded fear of persecution in Israel. Kiselev filed a timely appeal to the BIA. The BIA affirmed the IJ’s decision and dismissed the appeal. The BIA noted the inconsistencies in matters such as the nature, circumstances, and severity of the harm the Kiselevs endured in Israel put forth in Kiselev’s testimony. In affirming the IJ’s credibility determination, however, the BIA did not affirm the IJ’s alternative holding that, even if Kiselev were credible, she did not establish eligibility for asylum. Kiselev timely filed a petition for review. II. 2 Igor Kiselev, Marina’s 21-year old son, was part of the proceedings before the IJ, but is not a party to this petition for review. -3- The BIA had jurisdiction over Kiselev’s appeal under 8 C.F.R. § 1003.1(b)(3). This court has jurisdiction to review a final order of removal under 8 U.S.C. § 1252. Findings of fact are reviewed for substantial evidence and, therefore, may not be set aside unless a reasonable fact-finder would be compelled to find to the contrary. Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006). The BIA’s interpretation of the Immigration and Nationality Act in an opinion dismissing an alien’s appeal is entitled to deference. See Augustin v. Attorney General of the U.S., 520 F.3d 264, 268 (3d Cir. 2008). We will not reverse the BIA as long as “a reasonable fact finder could make a particular finding on the administrative record.” See Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003). In cases involving an adverse credibility determination, we must deny the petition for review as long as that determination is “supported by such relevant evidence as a reasonable mind would find adequate.” Id. at 250. In addition, we review the IJ’s decision to the extent that the BIA adopted it. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003). III. When evaluating an adverse credibility determination, we must “ensure that it was appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony . . . in view of the background evidence on country conditions.” Dia, 353 F.3d at 249 (quotation and citation omitted). “Generally, minor inconsistencies and minor admissions that reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.” Gao v. Ashcroft, 299 F.3d -4- 266, 272 (3d Cir. 2002) (quotation and citation omitted). Further, “deference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, viewed as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir. 1998) (citation omitted). Findings of adverse credibility “must be based on inconsistencies and improbabilities that go to the heart of the asylum claim.”3 Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quotation and citations omitted). The IJ and BIA properly based their adverse credibility determination upon marked inconsistencies and flaws in—and between—Kiselev’s two persecution accounts and her subsequent testimony. As the IJ noted, Kiselev provided strikingly different reasons for requesting asylum at various points in the administrative process. The first of these claims was based upon persecution suffered in the Ukraine because Kiselev was Jewish. The second claim was based upon persecution suffered by the Kiselev family in Israel because the Kiselevs were Russian and not considered to be Jewish by Israelis. As the IJ noted, Kiselev’s encounter with “David,” and his poor advice, explained what had happened with Kiselev’s first claim to some degree. But even if such an argument were sufficient to provide some amount of restoration to Kiselev’s credibility, Kiselev did not 3 The provisions of the Real ID Act of 2005 that address the court’s review of an adverse credibility finding do not apply in this case because Kiselev applied for relief before the Act’s effective date. See Chukwu v. Att’y Gen.of the United States, 484 F.3d 185, 189 (3d Cir. 2007). -5- simply transpose events occurring in Israel with the events she described in Ukraine.4 Further, there were also inconsistencies between information contained in Kiselev’s second, and purportedly truthful, affidavit and her subsequent testimony before the IJ. In Zubeda v. Ashcroft, 333 F.3d 463, 476-77 (3d Cir. 2003), we observed that an IJ should be careful before placing too much weight on a discrepancy between an asylum application and subsequent testimony. See also Fiadjoe, 411 F.3d at 159. Given the history of the proceedings here, however, such inconsistencies alone were more than a sufficient basis to support the adverse credibility finding as they plainly went to the heart of Kiselev’s claim. Moreover, as detailed by the IJ, Kiselev was selected by a 2006 Diversity Program Lottery (DV-2006), which allowed for a path to legalization, but to apply she and her family would have had to return to Israel. Kiselev stated in testimony before the IJ that she was afraid to return to Israel to complete this application. Importantly, however, Kiselev traveled to Israel from the United States during the time when she allegedly was being persecuted. As the IJ noted, while her mother was ill, Kiselev returned to Israel, with her son Roman, in March 2003 and re-entered the United States in November 2003. The IJ properly found the discrepancy in these accounts troubling as these facts diminished Kiselev’s believability. The contradiction in Kiselev’s testimony in this 4 We note too that Kiselev baldly admitted to not being truthful at her asylum office interview. -6- regard is further relevant, as any voluntary return weakens her assertion that she fears persecution. In sum, the inconsistencies, contradictions, and omissions, involving facts central to Kiselev’s claims, constitute substantial evidence supporting the adverse credibility finding of the IJ and BIA; a reasonable fact-finder would not be compelled to conclude to the contrary.5 IV. In light of the appropriate adverse credibility determinations of the IJ and BIA, and Kiselev’s failure to substantiate her claims with corroborative proof, substantial evidence supports the finding that she did not satisfy her burden of establishing eligibility for asylum or withholding of removal. For the foregoing reasons, the petition for review will be denied. 5 In addition, inconsistency was not the only basis upon which the IJ relied. The IJ was also not unreasonable in finding Kiselev’s lack of corroboration, given that her husband was in court and available to support her testimony, sufficient to further weaken her claim. See In re Y-B-, 21 I. & N. Dec. 1136, 1139 (BIA 1998) (“[T]he weaker an alien’s testimony, the greater the need for corroborative evidence”). -7-	{ "pile_set_name": "FreeLaw" }
179 Kan. 50 (1956) 292 P.2d 711 LAWRENCE L. MILLER, Appellee, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant. No. 39,864 Supreme Court of Kansas. Opinion filed January 28, 1956. William E. Haney, of Topeka, argued the cause, and Howard A. Jones and Charles L. Davis, Jr., both of Topeka, were with him on the briefs for the appellant. William Hergenreter, of Topeka, argued the cause, and Wendell L. Garlinghouse, Warren W. Shaw, Robert R. Jones and John A. Baush, all of Topeka, were with him on the briefs for the appellee. The opinion of the court was delivered by PRICE, J.: This was an action by an insured against an insurance company for a declaratory judgment to determine the rights and obligations of the parties under an automobile insurance policy. From an adverse judgment defendant has appealed. Plaintiff was the owner of a 1952 Pontiac automobile. The insurance policy in question was purchased by him from defendant and was in effect from February 20, 1953, to August 20, 1953. It was a "standard policy" classified as for "pleasure and business," and insured plaintiff against liability for bodily injury to the extent of $15,000 for each person, and against liability for property damage for each accident to the extent of $10,000. It provided that in the event plaintiff was sued as a result of a collision involving his automobile, or one being driven by him, defendant company would defend such suit. With respect to coverage while driving a vehicle other than the described Pontiac the policy provided: "V. Use of Other Automobiles "If the named insured is an individual who owns the automobile classified `pleasure and business,' ... such insurance as is afforded by this policy for bodily injury liability, for property damage liability ... with respect to said automobile applies with respect to any other automobile, subject to the following provisions: "(a) With respect to the insurance ... the unqualified word `insured' includes (1) such named insured, ..." "(b) This insuring agreement does not apply: "(1) To any automobile ... furnished for regular use to the named insured ... "(2) To any automobile while used in the business or occupation of the named insured ... except a private passenger automobile operated or occupied by such named insured, ..." On April 17, 1953, while driving a 1951 Chevrolet vehicle, commonly known as a "carry-all," and which was owned by the adjutant 52 general's department of the state of Kansas, plaintiff was involved in a collision with a vehicle owned by one D and being driven by D's wife. As a result of this mishap D sued plaintiff to recover for damage to his vehicle in the amount of $500, and D's wife sued plaintiff to recover for her personal injuries in the sum of $5,585. Plaintiff notified defendant insurance company of these actions filed against him, but the company, after making an investigation under a reservation of rights, refused to defend the suits for the asserted reasons that (1) at the time of the collision in question plaintiff was driving a vehicle which was furnished for his regular use by his employer, and (2) that the vehicle being driven by plaintiff at the time in question was other than a private passenger automobile used in the business or occupation of plaintiff, and therefore the exclusionary provisions of the policy, supra, relating to the use of other automobiles, applied, thus relieving defendant company of all obligation to defend the actions. Because of this dispute between the parties as to their respective rights and obligations under the policy plaintiff filed this action for a declaratory judgment. The pleadings raised only two questions. The first was whether the Chevrolet vehicle which plaintiff was driving at the time of the collision was one "furnished for regular use" to him. The second was whether the vehicle was other than "a private passenger automobile." The trial court, after hearing considerable evidence, made findings of fact on the two questions as follow: "9. That the 1951 Chevrolet automobile being driven by the plaintiff on April 17, 1953 was furnished to the plaintiff by the employer of plaintiff, the Adjutant General of the State of Kansas. That plaintiff used said automobile very seldom, probably not more than 2 or 3 times a year and then only for short trips. That said automobile was not furnished to the plaintiff `for regular use.' "10. That the 1951 Chevrolet automobile was called a `carry-all' by the manufacturer, which is similar to the type generally called `station wagon.' That the automobile in question at the time of the accident, before and since has only been used to transport one to seven human beings. That said automobile was and is a private passenger automobile." As a conclusion of law the court held: "1. That the defendant, Farmers Mutual Automobile Insurance Company was obligated under its policy No. 15-021851 to provide the protection to the plaintiff up to the limits set out in the policy declarations for the accident in which the plaintiff was involved on April 17, 1953 while the plaintiff was driving the 1951 Chevrolet described in plaintiff's petition, . .." 53 Judgment was entered accordingly and defendant has appealed, specifying as error the findings quoted above, the conclusion of law, the rendition of judgment thereon, and the denial of its motion for a new trial. Concerning the question whether the Chevrolet vehicle which plaintiff was driving at the time of the collision was one "furnished for regular use" to him, the evidence disclosed the following: Plaintiff had been employed as a civilian employee of the adjutant general's department of Kansas for several years. He was a contracting and purchasing clerk and bought items and supplies for the arsenal located on south Topeka Avenue in Topeka. The major portion of his duties was performed at his desk at the arsenal. His work required him to leave the arsenal very little, but occasionally he would drive from the arsenal to some store in downtown Topeka, and on rare occasions he would drive outside of Topeka. There were thirty or thirty-five employees in plaintiff's office, and a "car pool," consisting of four vehicles, including the Chevrolet in question, was available for use by the employees. These vehicles were owned by the adjutant general's department. The vehicle in question was purchased in 1951, and between then and April 17, 1953, the date of the accident, plaintiff had driven it perhaps four or five times. During the six months following the accident he had driven it approximately five or six times. He and his immediate superior testified that this vehicle was not furnished for his regular use, and that, provided it was not being used by some other employee, it was merely available to him on the very infrequent occasions he had to use a government-owned vehicle in his work. On many occasions, when no vehicle in the "car pool" was available he used his own automobile. Upon this evidence, of which the foregoing is only a brief resume, the trial court found that the vehicle in question was not furnished to plaintiff for his regular use within the meaning of the exclusionary provision of the policy. The evidence concerning whether the vehicle in question was other than "a private passenger automobile" disclosed the following: It is referred to in the "trade" and by the manufacturer as a "carry-all," and is described as being identical to what is commonly known as a "station wagon," except that it lacks many of the "refinements" of the latter. It has the same engine and mechanism as a comparable "station wagon," has two doors, a front seat, middle 54 seat and rear seat. It always had been used to carry persons, not exceeding seven in number. Upon this evidence, of which the foregoing is merely a brief summary, the trial court found that the vehicle was a private passenger automobile within the meaning of the exclusionary provision of the policy, and not a "truck," as contended by defendant. We think there can be no question but that the findings by the trial court on these two controverted issues are amply supported by substantial competent evidence. Such being the case, under the well-established rule, they are not to be disturbed on appellate review. And, if the findings are to be upheld, the conclusion of law made by the court is of a certainty correct and judgment was properly rendered thereon. However, as the precise questions apparently have never been passed upon by this court, we pause briefly to comment on defendant's contentions. In support of them we are cited to a number of decisions from other jurisdictions in which "use of other automobile" provisions in insurance policies are discussed. Each has been examined and considered. A number of them are set out in the annotation found at 173 A.L.R. 901. A study of the authorities discloses that courts have found it difficult to lay down any hard and fast rule, and that, generally speaking, each case has been decided upon its own facts and circumstances. As a matter of practical everyday experience, the average person occasionally drives an automobile other than his own. The purpose and effect of the "use of other automobile" provision in a policy are obvious. It extends the driver's insurance to infrequent or casual driving of other automobiles, but excludes him from coverage with respect to his regular use of an automobile not covered by the policy. And, with respect to the requirement that the "other automobile" be a private passenger automobile, the reason is equally obvious. It is common knowledge that the ordinary risk is greatly increased when an insured is driving a truck, bus, delivery, freight or cargo-hauling vehicle. We agree with the trial court that under the facts of this case the use which plaintiff made of the vehicle in question clearly was so infrequent and casual that it is not to be considered as one furnished to him for his regular use within the meaning of the policy, and that it was not intended for and in fact was not used for any purpose other than transporting not to exceed seven passengers. It clearly 55 was a private passenger automobile within the meaning of the policy. Defendant inferentially contends that inasmuch as the vehicle in question was government-owned it therefore was not a "private" passenger automobile. This contention cannot be sustained. The test to be applied to the word "private" is the type of vehicle and not its ownership. And there is still another reason why we think this case was correctly decided in the court below. Assuming, for the sake of argument, there is some ambiguity or uncertainty in the language of the exclusionary provision in question, defendant company is bound by the universal rule to the effect that where a provision of an insurance policy is susceptible of different constructions it is to be construed most favorably to the insured, and that if the insurer intends to restrict its coverage it should use language clearly stating its purpose. (Evans v. Accident Association, 102 Kan. 556, 171 Pac. 643, L.R.A. 1918D 122; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 58 P.2d 1108; Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P.2d 310; and Smith v. Mutual Benefit Health & Acc. Ass'n, 175 Kan. 68, 258 P.2d 993.) The judgment is affirmed.	{ "pile_set_name": "FreeLaw" }
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-1660 _____________ JANICE HAAGENSEN, PERSONAL REPRESENTATIVE OF THE ESTATE OF MYRTLE SHELBURNE HAAGENSEN, Appellant v. BETTY MAY REED; EDWARD ABERSOLD; ANNIE AND RUFUS K. HERSHBERGER; RICHARD RAPONE, TAX COLLECTOR OF LAWRENCE COUNTY; J.R HARDESTER, DIRECTOR OF ASSESMENTS OF LAWRENCE COUNTY; KAREN MAGNONE, PROPERTY TAX COLLECTOR OF NORTH BEAVER TOWNSHIP, IN AN INDIVIDUAL AND OFFICIAL CAPACITY *Caption Amended Per Clerk’s Order of 04/14/2016 _____________ On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-14-cv-00495 District Judge: The Honorable Arthur J. Schwab Submitted Pursuant to Third Circuit L.A.R. 34.1(a) November 9, 2016 Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges (Filed: November 15, 2016) _____________________ OPINION1 _____________________ SMITH, Chief Judge. In 2006, Janice Haagensen, as personal representative of her mother’s estate, initiated a quiet title action in the Court of Common Pleas of Lawrence County, Pennsylvania. The state court ruled against her in March 2011, concluding that she failed to establish a “right to immediate exclusive possession” as required to succeed in her quiet title action. Her untimely appeal to the Pennsylvania Commonwealth Court was unsuccessful. In December 2011, the Pennsylvania Supreme Court denied her petition for allowance of appeal. In 2014, Haagensen turned to the federal courts and filed this pro se civil rights action against the neighbor defendants in her state court quiet title action, the state court trial judge who presided over that action, and the tax assessment office and tax collector (tax entities). A district judge in the United States District Court for the Western District of Pennsylvania dismissed her action. He concluded that the Rooker-Feldman doctrine2 barred her action against the neighbor defendants 1 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). 2 and the state court judge, and that the statute of limitations barred the claims against the tax entities. Haagensen sought reconsideration, which the District Court denied. Within days, the neighbor defendants moved for sanctions pursuant to the court’s inherent power to levy sanctions, claiming that Haagensen initiated this action to “harass her neighbors.” See Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 (1980) (acknowledging that a court may impose sanctions pursuant to its inherent power when a losing party has acted, inter alia, vexatiously or for oppressive reasons) (citation omitted). Immediately thereafter, Haagensen filed a notice of appeal. Acknowledging that appeal, the District Court entered a text-only entry on the docket stating: “In light of the appeal filed by Plaintiff, said Motions for Sanctions . . . are dismissed without prejudice pending the resolution of the appeal.” We affirmed the dismissal of Haagensen’s claims in their entirety. Haagensen v. Wherry, 610 F. App’x 210 (3d Cir. 2015). Relevant to the appeal we now consider, we agreed that Rooker-Feldman barred the claims against the neighbor defendants. After our mandate issued, Haagensen filed a petition for a writ of certiorari. Following the Supreme Court’s denial of that request, the case returned to the District Court. The neighbor defendants filed their second motion for sanctions asking the court to exercise its inherent power. Haagensen opposed the motion, contending only that the District Court lacked jurisdiction to consider 3 that motion. The Court disagreed and awarded monetary sanctions in the amount of $4,298.40 in attorney’s fees and costs. The Court declined, though, to enjoin Haagensen from filing any further pro se pleadings. Haagensen next filed a timely motion for reconsideration, which the District Court denied. This timely appeal followed. Haagensen does not take issue with the amount of the attorney’s fees or the propriety of the sanctions being imposed pursuant to the inherent power of the court. Rather, she contends that the District Court’s dismissal under Rooker-Feldman for lack of subject matter jurisdiction, as well as our affirmance, deprives the District Court of authority to do anything further in the case.3 Despite Haagensen’s prolix brief in support of her argument, we are not persuaded. The District Court had federal question jurisdiction over Haagensen’s civil rights claims under 42 U.S.C. § 1983 against the neighbor defendants, the state court judge and the tax entities. 28 U.S.C. § 1331. Thereafter, the neighbor defendants raised the Rooker-Feldman doctrine in their motion to dismiss. That doctrine bars the District Court from reviewing and rejecting an unfavorable state 3 Ordinarily, we review an award of sanctions for abuse of discretion. Lazorko v. Pa. Hosp., 237 F.3d 242, 248 (3d Cir. 2000). Because Haagensen challenges only the District Court’s jurisdiction to award the sanctions, and not the decision to assess the sanctions or the amount, our review is de novo. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). Inasmuch as the order awarded sanctions in a specific amount, it is a final order, and we exercise appellate jurisdiction under 28 U.S.C. § 1291. Lazorko, 237 F.3d at 248. 4 court judgment. See Exxon-Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 284 (2005). Rooker-Feldman’s application, however, is limited to those cases “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejections of those judgments.” Id. Thus, Rooker-Feldman does not apply “simply because a party attempts to litigate in federal court a matter previously litigated in state court.” Id. at 293. As a result, courts must scrutinize a plaintiff’s federal complaint to determine if the claim at issue is barred by Rooker- Feldman or is viable because it is actually “an independent, non-barred claim.” Great W. Mining & Mineral, 615 F.3d at 166. Having determined that Haagensen’s claim against the neighbor defendants complained of an injury from the state court judgment in the quiet title action, the District Court properly ended its analysis of the merits of her § 1983 claim at that point under the Rooker-Feldman doctrine.4 Haagensen, 610 F. App’x at 211. Although barred from reviewing the merits of that claim, see Exxon-Mobil Corp., 544 U.S. at 284, the District Court appropriately exercised its federal question jurisdiction over Haagensen’s other § 1983 claims against the tax entities and 4 One of the neighbor defendants was Edward W. Abersold. According to a suggestion of death, Abersold died on July 13, 2016 and no estate has yet to be opened. Under all the circumstances, Haagensen’s motion for substitution is denied. Furthermore, because we will affirm the order granting the motion for sanctions, the motion to amend the caption is moot. Haagensen’s other motions are denied. 5 managed other matters separate and distinct from the merits of the claim barred by the Rooker-Feldman doctrine, such as the neighbor defendants’ motion for sanctions. In light of Haagensen’s appeal, the District Court permissibly denied the motion for sanctions without prejudice, thereby allowing the neighbor defendants to renew their request following the conclusion of the appeal. See Fed. R. Civ. P. 54(d)(2)(B), (E) (providing that, when the sanctions requested are neither for violation of the rules or under 28 U.S.C. § 1927, a court order may establish when a motion for attorney’s fees may be filed). Our mandate affirming the District Court’s judgment on the first appeal returned the case to the District Court for whatever additional proceedings were appropriate or necessary. See Ostrer v. United States, 584 F.2d 594, 598 (2d Cir. 1978) (“The effect of the mandate is to bring the proceedings in a case on appeal in our Court to a close and to remove it from the jurisdiction of this Court, returning it to the forum whence it came.”). In the absence of a renewed motion for sanctions, the District Court’s action would have been to close the civil action in accordance with the mandate as there was nothing more for the court to do. The renewed motion for sanctions, however, raised an issue that the District Court was authorized to resolve. We conclude that the District Court had the authority under § 1331 to resolve this motion for sanctions. See Willy v. Coastal Corp., 503 U.S. 131, 138 (1992) (reiterating that “‘[i]t is well established that a federal court may 6 consider collateral issues after an action is no longer pending’ . . .[and] therefore does not raise the issue of a district court adjudicating the merits of a ‘case or controversy’ over which it lacks jurisdiction”) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); Cooter & Gell, 496 U.S. at 396 (concluding that “the imposition of a Rule 11 sanction is not a judgment on the merits of the action” and that it “require[d] the determination of a collateral issue: whether the attorney has abused the judicial process,” which “may be made after the principal suit has been terminated”). For that reason, we will affirm the District Court’s judgment. 7	{ "pile_set_name": "FreeLaw" }
101 F.Supp. 328 (1951) COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, et al. v. UNITED STATES et al. No. 597. United States District Court E. D. Virginia, Alexandria Division. November 15, 1951. Malcolm D. Miller, Washington, D. C., for the plaintiffs. Gardner L. Boothe, Alexandria, Va., and S. Harrison Kahn, Washington, D. C. for A. B. & W. Transit Co. intervener. C. H. Johns, Washington, D. C., for the Interstate Commerce Commission. John H. D. Wigger, Special Asst. to the Atty. Gen., and William P. Woolls, Jr., Special Asst. to the U. S. Atty., Alexandria, Va., for the United States. Before DOBIE, Circuit Judge, and HUTCHESON and BRYAN, District Judges. 329 BRYAN, District Judge. The County Board of Arlington County, Virginia, its members, and an individual patron seek to suspend and set aside[1] an order entered by the Interstate Commerce Commission finding just and reasonable an increase in the fares of the Alexandria, Barcroft and Washington Transit Company for transportation of passengers between Washington, D. C. and points in the Counties of Arlington and Fairfax and the City of Alexandria, Virginia. Concession was made at the bar, during the pre-trial conference, that the findings of fact of the Commission are supported by the evidence. Our inquiry, then, is the legal soundness of the conclusions drawn by the Commission and now assailed by the plaintiffs. To become effective June 4, 1950, A B & W filed with the Commission schedules of proposed interstate fares between Washington and Virginia, but not within the zone that includes certain Government installations. The increase applicable to the territory of the plaintiffs was generally the addition of 5 cents to each one-way fare. Upon objection by the Arlington County Board and of civic associations along the lines of the Company, the schedules were suspended by the Commission until January 3, 1951. In the interim full hearings were granted to all parties in interest and the examiner's proposed report thereafter filed, followed by the exceptions of the plaintiff Board. On November 10, 1950 Division 2 of the Commission made its report, and therein set forth its findings and its conclusions, holding that, with exceptions unimportant here, the new fares were proper. The same day an order was entered by the Commission, Division 2, vacating its previous suspension of the rates and discontinuing the proceeding. Petition of the County Board for reconsideration by the full Commission was denied in April 1951. We dispose, in limine, of the complaint of the Commission's procedure. Of certain exceptions filed by the Board to the report of the examiner, Division 2 said, "Requested findings and exceptions, not discussed in this report nor reflected in our findings or conclusions, have been given consideration and found not justified." Reconsideration of the report of its Division 2, the Commission said, was denied because "the evidence of record adequately supports the findings of Division 2." Although the reasons for these rulings are thus unequivocally stated, the County Board insists that Division 2, as well as the Commission, failed to comply with section 8, of the Administrative Procedure Act,[2] by not adding findings and conclusions to support its action in refusing requested findings and its actions in overruling exceptions and refusing reconsideration. The contention is obviously meritless. Condensed, the plaintiff's complaint is that the Commission's conclusion is unbacked by the indispensable jurisdictional finding on fairness and reasonableness,[3] that it was reached without the employment of any approved principle for determining, or any acceptable standard for measuring, reasonable rates, that it ignores passenger interest, and that it depends in part upon intrastate operations. We think the Commission's action securely grounded in fact and in law. Division 2 definitively found that, A B & W's "operating revenues are less than its reasonable expenses" but when increased to the amounts permitted by the order of November 10, 1950, the fares would be just and reasonable for the transportation described. It computed that the increase would establish a ratio of operating costs to operating income, after income taxes, of 95.6.[4] Explicitly the report declares "the proposed fares * * are just and reasonable" 330 and the "proposed fares * * do not appear to exceed maximum reasonable fares, and we so conclude." In coming to its final conclusion the Commission proceeded logically and lawfully. Compelling the ultimate findings are extensive intermediate ones. The transportation demanded, the service provided, the facilities therefor, as well as the existing investment, the capital expenditures made and to be made, dividends paid, the cost and economies of operation, plus the present and predictable revenues, were all subjects of the report. When a rate-making body has thus given thought to the factors recognized as developing a fair rate for a service, its decision must be accepted as a just figure, even though its conclusion may not be premised upon any theorem of price-fixing.[5] True, operational costs and income predominated in the determination. This was not a matter of choice for the Commission. It was dictated by the nature of the utility under consideration. In following this natural course the Commission manifested an understanding of the methods and modus operandi of the business. For local transportation by bus the principal, and sometimes the sole, capital investment is mobile units. But so severe is their rate of depreciation that the entire investment, if unreplenished, would rapidly disappear. Too, the units demand close, constant, and costly supervision, repair, and maintenance. The necessity for frequent replacements requires that operating costs be heavily and regularly charged to create and maintain a depreciation reserve. Consequently, operating costs are the thing the first and prime consideration in the ascertainment of what must be collected for the service. In this kind of utility the investment of capital in fixed assets seldom approaches the amount invested in that form by those utilities requiring for their purposes such permanent items as land, buildings, plants, rights of way, tunnels, trackage, depots, wires, poles, mains, reservoirs, or similar long lived properties. Careful appraisement in the latter class of utilities of their capital assets, in order to fix a rate base, is imperative, but it is not so dominant an inquiry for a suburban bus company. A B & W is typical; its chief concern is operating expense. Accentuation of operating costs in a proper case is known as the operating ratio rule. It is the pattern followed by the Commission here and in many other appropriate instances. Actually it is not a departure from the conventional modes. It is simply a label designating the process of evaluating a service in the light of all relevant factors, but with especial emphasis on the element of operating expense when the nature of the service makes operating costs the foremost consideration. The Commission's analysis was painstakingly detailed and comprehensive. It found that in the first quarter of 1950 the revenues fell below those in 1949 for the same period by $110,000, and the expenses in the 1950 quarter were greater by $36,000 than the revenues for that quarter. The quarter was proved to be a safe forecast for the year. The ratio of costs to revenue in the 1950 quarter, before income taxes, was 105, compared with 96.6 for the first quarter of 1949 and 97.3 for the entire year 1949, the last two ratios including provision for income taxes. The losses were also demonstrated through comparative bus-mile expenses and revenues. A loss trend was evident, not to be arrested by the strictest economies some so drastic as to draw the criticism of the County Board. The Company's equipment-maintenance and garage expense for 1949 was less than for 1948, despite a general .10 cent hourly wage increase. Though bus parts, gasoline, tires, and other items advanced, the 1949 operation and maintenance expenses were also less than the 1948. These same items in the first quarter of 1950 were considerably smaller than for the 1949 quarter. Bus mileage was curtailed each month of 1950 below the corresponding month of 1949. Officers' salaries were scrutinized, as was the rental paid to the president of 331 the Company for the use of his building as a terminal. Depreciation rates were weighed. Thought was given to the possibility of a traffic decline incident to an increase of fares, with the reservation that, if no such decrease was felt, the fares could be readjusted to prevent excessive returns to the Company. We do not attempt an enumeration of all the matters mentioned by the Commission. Those we have noted sufficiently example the breadth and intensity of the Commission's study. Summarized, the cost figures found by the Commission disclose these operating results: First Quarter 1948 1949 of 1950 ------ ------ -------------- Operating Revenues $2,855,775 $2,995,837 $660,360 Operation Expense 2,876,338 2,913,532 696,765 Operation ratio per centum after income taxes and including inappreciable nonoperating income and deductions 100.7 97.3 105.5 The Commission is not guilty of the unfavorable implication arising from the charge that it pursued a cost-plus method. So used this term infers that cost and profit were its only consideration. Every price-fixing, and a rate determination is nothing more, is finally the sum of cost plus profit. It is unlawful only when it ignores the other factors, and when the cost and profit are not subjected to the refining processes prescribed by law. Instantly, while the fare necessarily is made up of cost and profit, each of these has been pared to conform them to the rules of reasonableness. Significantly no issue of inadequacy or inefficiency of service has entered this case. Nevertheless, on the patrons' side, the Commission considered the age and number of the busses and the frequency of their schedules in rush hours and non-rush hours. It attentively examined the grievances urged by the citizen associations. Furthermore, the fare zones were measured for equality. But above all, the absence of any reduction in the net return for deficiency in service, or of any request therefor by the plaintiffs, is the most persuasive evidence that every normal requirement of service to the passengers has been met. Suggestion is made by the Board that the Commission erroneously failed to segregate the interstate from the intrastate revenues and expenses. The argument is that the Commission has not demonstrated that the interstate revenues are insufficient to take care of the interstate costs and to give a fair profit on the interstate business that the losses may perhaps be rooted in the intrastate business. This argument is not sound. The inter and intra business are one entire operation, the latter as an integral part of the other. In these circumstances, for rate ascertainments, no separation is helpful. Neither reason nor expediency imposes such an obligation and the law has not.[6] No omission has been made of the particular considerations enjoined upon the Commission by the statute.[7] Nor has it infringed the statutory prohibition against 332 the use of "earning power" as evidence or an element of "value of the property" of the carrier[8] for no property here has been so appraised. The finding of the Commission that the new rates will establish an operating ratio of approximately 95.6 means that it allows a net percentage of 4.4 for profit. The reasonableness of this allowance appeared to the Commission from the facts of the record and hence is not subject to the objection sustained in Washington Gas Light Co. v. Baker[9] as urged by the plaintiffs. We have reviewed the proceedings on the points made by the plaintiffs, but it must be remembered that we are not deciding the merits of the rate case. Our search reveals that the Commission acted within the law defining its powers and on full and sufficient facts. This ends our inquiry. We are thereafter without jurisdiction to question the Commission's decision. The defendants in their answers challenge the standing of the County Board and its members in their representative capacity to bring this action. They acknowledge the right of the plaintiff Thomas F. Proctor to do so, as a patron of the bus line. Although the statute[10] gives the County Board and its members the privilege to be heard before the Commission, we have grave doubts of their right to institute a suit of this kind, because they are not directly affected by the order and the public is already represented by the Commission.[11] Nevertheless, as the plaintiff Proctor is conceded that right, we pass upon the case as if all the plaintiffs were properly before the court. A decree will be entered dismissing the complaint, with costs to the defendants. NOTES [1] Secs. 1336, 2321-2325, Title 28 U.S. Code. [2] 5 U.S.C.A. § 1007. [3] 49 U.S.C.A. § 316. [4] This percentage will be slightly greater. It was based upon an assumed raise of fares in the zone of the Government installations to the maximum requested, but subsequent to the instant report, only a partial increase was granted in that zone. [5] Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 88 L.Ed. 333. [6] Illinois Commerce Commission v. U. S., 292 U.S. 474, 483, 54 S.Ct. 783, 78 L.Ed. 1371; Lone Star Gas Co. v. State of Texas, 304 U.S. 224, 241, 58 S.Ct. 883, 82 L.Ed. 1304. [7] 49 U.S.C.A. § 316(i). [8] 49 U.S.C.A. § 316(h). [9] 88 U.S.App.D.C. 115, 188 F.2d 11, certiorari denied 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686. [10] 49 U.S.C.A. § 316(e). [11] Jersey City v. U. S., D.C.N.J., 101 F. Supp. 702; Tyler v. Judges, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252; U. S. v. Merchants Traffic Ass'n, 242 U. S. 178, 188, 37 S.Ct. 24, 61 L.Ed. 233; Pittsburgh & W. Va. Ry. v. U. S., 281 U.S. 479, 486, 50 S.Ct. 378, 74 L.Ed. 980; Moffat Tunnel League v. U. S., 289 U.S. 113, 53 S.Ct. 543, 77 L.Ed. 1069.	{ "pile_set_name": "FreeLaw" }
70 F.Supp.2d 1061 (1999) Mohammad YOUSEFI and David Kane, on behalf of themselves and all others similarly situated, Plaintiffs, v. LOCKHEED MARTIN CORPORATION, Vance Coffman, Marcus Bennett, Norman Augstine, Vincent Marafino, James Blackwell, and Thomas Corcoran, Defendants. Joseph Edmonds, on behalf of himself and all others similarly situated, Plaintiff, v. Lockheed Martin Corporation, Vance Coffman, Marcus Bennett, Norman Augstine, Vincent Marafino, James Blackwell, and Thomas Corcoran, Defendants. William Kretchmeyer, on behalf of himself and all others similarly situated, Plaintiff, v. Lockheed Martin Corporation, Vance Coffman, Marcus Bennett, Norman Augstine, Vincent Marafino, James Blackwell, and Thomas Corcoran, Defendants. Nos. CV99-0372LGBRNBX, CV99-1266LGBRBNX, CV99-1476LGBRNBX. United States District Court, C.D. California. May 25, 1999. 1062 1063 William S Lerach, Alan Schulman, Darren J Robbins, Randall J Baron, Milberg Weiss Bershad Hynes & Lerach, San Diego, CA, Lawrence J Lederer, Daniel Berger, Berger & Montague, Philadelphia, PA, for Mohammad Yousefi, on behalf of themselves and all others similarly situated, plaintiff. William S Lerach, Alan Schulman, Darren J Robbins, Randall J Baron, Milberg Weiss Bershad Hynes & Lerach, San Diego, CA, Lawrence J Lederer, Daniel Berger, Berger & Montague, Philadelphia, PA, Marc A Topaz, Schiffrin & Barroway, Bala Cynwyd, PA, for David Kane, on behalf of themselves and all others similarly situated, plaintiff. Seth Alben Aronson, O'Melveny & Myers, Los Angeles, CA, for Lockheed Martin Corp, Vance Coffman, Marcus Bennett, Norman Augustine, Vincent Marafino, James Blackwell, Thomas Corcoran, defendants. ORDER SUA SPONTE STRIKING PARTIES FROM THE MOTION TO CONSOLIDATE; ORDER GRANTING MOTION TO CONSOLIDATE; ORDER DENYING MOTION FOR DESIGNATION OF LEAD PLAINTIFFS; ORDER DENYING MOTION FOR DESIGNATION OF LEAD COUNSEL; ORDER SUA SPONTE DESIGNATING LEAD PLAINTIFFS; ORDER SUA SPONTE DESIGNATING LEAD COUNSEL. BAIRD, District Judge. I. INTRODUCTION. Three class action lawsuits have been filed against Lockheed Martin Corporation 1064 and six of its officers for securities fraud. Plaintiffs in two of the suits and 134 other potential class members (1) move to consolidate the actions, (2) move for the Court to appoint them lead plaintiffs, and (3) move for the Court to appoint their attorneys lead counsel. The Court strikes sua sponte all moving parties from the motion to consolidate with the exception of Mohammad Yousefi, David Kane, and William Kretchmeyer, and it grants the motion. The Court denies the motion to appoint lead plaintiffs and lead counsel. After close review of the complaints, 137 class members' declarations certifying the purchase of Lockheed stock, and the resumes of three law firms that specialize in prosecuting securities fraud, the Court names sua sponte James Corbin and the City of Philadelphia Board of Pensions and Retirement as lead plaintiffs and the law firm of Milberg, Weiss, Bershad, Hynes & Lerach as lead counsel. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY. On January 14, 1999, plaintiffs Mohammad Yousefi ("Yousefi") and David Kane ("Kane") filed this securities fraud class action on behalf of themselves and those who purchased Lockheed Martin Corporation ("Lockheed") stock between August 13, 1998 and December 23, 1998. (Yousefi Complaint, 1:2-5). Plaintiffs allege that defendant Lockheed and six of its officers made false and misleading statements concerning the prospective value of the company and its stock in association with two mergers and one take-over involving Lockheed. (Yousefi Complaint, 1:1-31:3). Yousefi and Kane further allege that the officer defendants sold their stock before publicly disclosing Lockheed's financial troubles, thereby violating insider trading laws. (Yousefi Complaint, 10:5-13:28). Plaintiffs state claims under Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934, as well as Rule 10b-5 under the Act. (Yousefi Complaint, 69:12-25). On February 5, 1999, Joseph Edmonds ("Edmonds") filed a class action against Lockheed and the same six officers for the securities fraud that occurred between August 13, 1998 and December 23, 1998. Edmonds states claims under Sections 10(b) and 20(a) and Rule 10b-5. (Edmonds Complaint, 36:3-37:24). On February 11, 1999, William Kretchmeyer ("Kretchmeyer") filed a securities fraud class action, identical to the Yousefi and Edmonds actions. This suit involves the same defendants, the same allegations of fraud, and the same claims. On March 15, 1999, Yousefi, Kane, Kretchmeyer, and 134 other potential class members, collectively identifying themselves as the "Lockheed Plaintiffs Group," filed a motion to consolidate the three suits. On that same day, the Lockheed Plaintiffs Group also filed a motion to appoint its 137 members lead plaintiffs in the class action. On March 29, 1999, defendants filed a notice of non-opposition to the motion to consolidate. On April 1, 1999, the Lockheed Plaintiffs Group filed a reply. No other potential class members filed motions for appointment as lead plaintiff or otherwise opposed the Lockheed Plaintiffs Group's motions. III. MOTION TO CONSOLIDATE. A. LEGAL STANDARD. Rule 42(a) of the Federal Rules of Civil Procedure governs motions to consolidate actions. See Fed.R.Civ.P. 42(a). When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Fed.R.Civ.P. 42(a). The threshold issue, therefore, is whether the actions involve common facts or legal issues. See Enterprise 1065 Bank v. Saettele, 21 F.3d 233, 235 (8th Cir.1994). When the suits subject to consolidation involve securities fraud, "a court shall not make the [lead plaintiff and counsel determination] until after the decision on the motion to consolidate is rendered." See 15 U.S.C. § 78u-4(a)(3)(B)(ii) (1997). After the court decides the motion to consolidate, "the court shall appoint the most adequate plaintiff as lead plaintiff for the consolidated actions" as soon as practicable. See 15 U.S.C. § 78u-4(a)(3)(B)(ii). B. APPLICATION. The Lockheed Plaintiffs Group moves to consolidate the Yousefi, Edmonds, and Kretchmeyer suits. (Motion to Consolidate, Face Page). This group consists of Yousefi, Kane, Kretchmeyer, and 134 class members that purchased Lockheed stock during the period at issue. (Baron Decl., Exhs. A, B). Aside from Yousefi, Kane, and Kretchmeyer, the group's members are not named plaintiffs in any of the suits. Only a party to an action may move for consolidation of its action with another; alternatively, a district court presiding over the matters may order consolidation sua sponte. See In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1012-21 (5th Cir.1977) (explaining who may assert a motion to consolidate). Given this rule, Yousefi, Kane, and Kretchmeyer may move for consolidation because they are parties to the suits at issue. However, the 134 other members of the Lockheed Plaintiffs Group, which are not party to the three suits subject to consolidation, cannot move to consolidate the actions. Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the Court strikes sua sponte the 134 members of the Lockheed Plaintiffs Group that are not party to the three actions at issue from the motion to consolidate. See Fed.R.Civ.P. 12(f) (permitting courts to strike "immaterial" pleadings). With regard to Rule 42(a)'s requirements, the Yousefi, Edmonds, and Krechmeyer suits all state claims for violations of Sections 10(b) and 20(a) and Rule 10b-5 for false and misleading statements that defendants made relating to Lockheed stock between August 13, 1998 and December 23, 1998. (Yousefi Complaint, 69:12-25; Edmonds Complaint, 36:3-37:24; Kretchmeyer Complaint, 69:12-25). They also allege that the individual defendants sold their stock before making public disclosures concerning Lockheed's finances. (Yousefi Complaint, 10:5-13:28; Edmonds Complaint, 6:25-8:15; Kretchmeyer Complaint, 10:4-13:28). The Yousefi and Kretchmeyer complaints are written by the same counsel and are identical in form and content. The Edmonds complaint is written by counsel different from that of the Yousefi and Kretchmeyer actions, but it paraphrases those complaints almost paragraph by paragraph. Because the Court finds that the complaints contain common issues of law and fact, it grants the motion to consolidate CV 99-372 LGB (RNBx), CV 99-1266 LGB (RNBx), and CV 99-1476 LGB (RNBx). IV. MOTION TO APPOINT LEAD PLAINTIFF AND LEAD COUNSEL. The 137 members of the Lockheed Plaintiffs Group move for the Court to name them joint lead plaintiffs. They also move for the law firm of Milberg, Weiss, Bershad, Hynes & Lerach ("Milberg, Weiss"), the law firm of Schiffrin & Barroway, and the law firm of Berger & Montague to serve as joint lead counsel for the instant class action suit. A. The Private Securities Litigation Reform Act of 1995. In 1995, Congress passed the Private Securities Litigation Reform Act, which established procedures for the filing of class action suits under the Securities and Exchange Act of 1934. See 15 U.S.C. § 78u-4 (codifying the Act); S.Rep. No. 1066 104-98, at 8-12 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 687-91. According to the Act's legislative history, Congress views the plaintiff's bar as quick to file non-meritorious securities fraud suits on behalf of nominally interested plaintiffs anytime there is a downward turn in a stock's value, hoping to extract a speedy settlement. See S.Rep. No. 104-98, at 8-12 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 687-91. To end these abuses, the Act permits district courts to appoint the plaintiff it perceives to be the most qualified to represent the class, rather than the first plaintiff to file suit. See 15 U.S.C. § 78u-4. Ideally, courts will appoint institutional investors with large holdings in the stock as lead plaintiff. As Congress and academics have noted, institutional investors have incentives to monitor their suits closely because of their substantial stakes in the stock at issue, thereby eliminating frivolous tactics and settlements that inflate attorneys' fees. See S.Rep. No. 104-98, at 6, 11 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 685, 690 ("Numerous studies show that investors recover only 7 to 14 cents for every dollar lost as a result of securities fraud."); Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stan.L.Rev. 511, 513 (1991) (noting that in one business sector, every company that suffered a market loss of twenty million dollars or more faced a securities fraud suit); Elliot J. Weiss & John S. Beckerman, Let the Money Do the Monitoring: How Institutional Investors Can Reduce Agency Costs in Securities Class Actions, 104 Yale L.J.2053, 2109-27 (1995) ("[A] court might well feel confident in assuming that a fee arrangement an institutional investor had negotiated with its lawyers before initiating a class action maximized those lawyers' incentives to represent diligently the class' interests, reflected the deal a fully informed client would negotiate, and thus presumptively was reasonable."). To effect these ends, the Act sets forth two steps in the lead plaintiff appointment procedure. First, the plaintiff who filed the complaint shall publish, in a widely circulated national business-oriented publication or wire service, a notice advising members of the proposed class that the action is pending and that any member of the class may move the court to serve as lead plaintiff within sixty days of the notice's publication. See 15 U.S.C. § 78u-4(a)(3)(A). Plaintiff must publish this notice within twenty days of filing the complaint. See 15 U.S.C. § 78u-4(a)(3)(A)(i). If more than one action on behalf of a class asserting substantially the same claim is filed, the Act only requires the plaintiff in the first-filed action to publish the notice. See 15 U.S.C. § 78u-4(a)(3)(A)(ii). Second, the district court shall consider any motion made by a purported class member in response to the notice and shall appoint as lead plaintiff the member or members of the purported class that the court determines to be most capable of adequately representing the interests of class members. See 15 U.S.C. § 78u-4(a)(3)(B). The Act also creates a rebuttable presumption concerning which party is most capable of adequately representing the interests of class members. The court shall apply the rebuttable presumption to the person that, (1) "has either filed the complaint or made a motion in response to a notice" of the action, (2) "has the largest financial interest in the relief sought by the class," and (3) "otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure." 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). The presumption may be rebutted "only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff" (1) "will not fairly and adequately protect the interests of the class" or (2) "is subject to unique defenses that render such plaintiff incapable of adequately representing the class." 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). B. COMPLIANCE WITH THE ACT'S NOTICE REQUIREMENTS. Yousefi and Kane, who filed the first action, have complied with the Act's 1067 notice requirements. See 15 U.S.C. § 78u-4(a)(3)(B) (requiring that the firstfiled action meet notice requirements). On January 14, 1999, the day on which they filed suit, Yousefi and Kane announced on the Dow Jones & Company's Business Wire their class action suit against Lockheed and its officers, filed in the Central District of California. (Baron Decl., Exh. D). The wire details the securities fraud allegations against Lockheed and its officers for the period of August 13, 1998 to December 23, 1998. (Baron Decl., Exh. D). As required by the Act, the announcement also states that "[i]f you are a member of the Class described above, you may, no later than 60 days from today, move the Court to serve as lead plaintiff of the Class, if you so choose." (Baron Decl., Exh. D). Class members had until March 15, 1999 to move this Court to appoint them lead plaintiffs. No class members filed such a motion other than the instant motion. Since the passage of the Act, district courts, including this Court, have repeatedly recognized the Business Wire as a "widely circulated national business-oriented ... wire service," as required by the Act. See, e.g., Squyres v. Union Texas Petroleum Holdings, Inc., 1999 Fed.Sec. L.Rep. (CCH) ¶ 90,405 (C.D.Cal. November 2, 1998) (Baird, J.); Chill v. Green Tree Fin. Corp., 181 F.R.D. 398, 403 (D.Minn.1998); D'Hondt v. Digi Int'l, Inc., 1997 WL 405668, at 1 (D.Minn. Apr.3, 1997); Greebel v. FTP Software, Inc., 939 F.Supp. 57, 62-63 (D.Mass.1996) ("Business Wire is subscribed to by hundreds of print publications and wire services, encompassing news media in all fifty states."). Accordingly, the Court finds that Yousefi and Kane have met the Act's notice requirements. C. GROUPING UNRELATED CLASS MEMBERS TO ESTABLISH THE REBUTTABLE PRESUMPTION. Courts applying the Act are divided over whether multiple class members may aggregate their losses in order to satisfy the presumption's requirement that the lead plaintiff be the "person or group of persons [that] has the largest financial interest in relief sought by the class." See 15 U.S.C. § 78u-4(a)(3)(B)(iii). The Southern District of New York, in In re Donnkenny Inc. Securities Litigation, 171 F.R.D. 156 (S.D.N.Y.1997), denied plaintiffs' motion to aggregate two institutional investors and four individuals to serve as lead plaintiffs. See id. at 157. The court reasoned that by grouping the interests of unrelated class members, those members would most likely abdicate the coordination of the suit to their attorneys. See id. The court expressed that this result would be at odds with the Act's purpose of eliminating lawyer-driven litigation. See id. However, the majority of courts addressing this issue have permitted the aggregation of claims. See, e.g., In re Advanced Tissue Sciences Sec. Litig., 184 F.R.D. 346, 353 (S.D.Cal.1998) (allowing the aggregation of six plaintiffs); In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 45-48 (appointing three plaintiffs as lead plaintiffs); Chill v. Green Tree Financial Corp., 181 F.R.D. 398, 409 (D.Minn.1998) (aggregating six plaintiffs). Courts have arrived at this result because the Act expressly permits a court to appoint more than one lead plaintiff. The court "shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members." 15 U.S.C. § 78u-4(a)(3)(B)(i) (emphasis added). Furthermore, when choosing the lead plaintiff, the court must appoint the "person or group of persons" that meets the rebuttable presumption's requirements. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I) (emphasis added). Therefore, the Act clearly contemplates the appointment of multiple plaintiffs to manage the litigation. Nevertheless, the Court recognizes a tension between the Act's express 1068 purpose and language. Although the legislative history stresses the need to place control of securities class actions in a small and finite number of plaintiffs, the statute's language explicitly provides for more than one lead plaintiff, altogether failing to limit the number of lead plaintiffs a court may employ. See 15 U.S.C. § 78u-4(a)(3)(B); See S.Rep. No. 104-98, at 8-12 (1995), reprinted in 1995 U.S.C.C.A.N. 685. This tension's import is that Congress desired the Act to mitigate abusive litigation tactics, in contrast to serving as an antidotal measure. Examining the Act through this palliative lense, the Court finds that it contemplates the aggregation of unrelated plaintiffs as a permissible, albeit suboptimal, result. Contrary to the holding in In re Donnkenny Inc. Securities Litigation, this Court therefore holds that where a group of unrelated plaintiffs move to aggregate their claims to serve as lead plaintiffs, and no party or potential class member opposes the motion, the court may permit the aggregation. In sum, the Court finds that the Act does not prohibit outright the Lockheed Plaintiffs Group from collectively moving for appointment as joint lead plaintiffs. The tension between the Act's legislative history and express language also counsels this Court's decision concerning the appropriate number of class members to serve as lead plaintiffs. As explained above, the Lockheed Plaintiffs Group consists of three named plaintiffs and 134 unrelated class members. Precedent does not exist for a group of lead plaintiffs this large. In fact, when courts appoint multiple class members as lead plaintiffs, they typically appoint less than ten plaintiffs. See, e.g., See In re Advanced Tissue Sciences Sec. Litig., 184 F.R.D. 346, 353 (S.D.Cal.1998) (allowing the aggregation of six plaintiffs); In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 45-48 (appointing three plaintiffs as lead plaintiffs); Chill v. Green Tree Financial Corp., 181 F.R.D. 398, 409 (D.Minn.1998) (aggregating six plaintiffs). Confronted with a similar issue, the Southern District of California, in In re Advanced Tissue Sciences Securities Litigation, 184 F.R.D. 346 (S.D.Cal.1998), denied a motion to appoint approximately 250 unrelated class members as lead plaintiffs and denied another motion to appoint 165 unrelated class members. The Court reasoned that numerous lead plaintiffs would make "the administration of this action unnecessarily complex and unwieldy" and would be "inconsistent with the goal of restoring control over lawsuits to plaintiffs." Id. at 352. Instead, the court granted an alternative motion to appoint six class members as lead plaintiffs. See id. Like the Southern District of California, this Court finds that an aggregation of class members as large as the Lockheed Plaintiffs Group would frustrate the Act's purposes. One of its primary goals is to enable plaintiffs to seize control of securities fraud class action suits from the plaintiff's bar. See S.Rep. No. 104-98, at 8-12 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 687-91. In a suit with 137 lead plaintiffs, attorneys would have to assume a leadership role to coordinate and manage this number of lead plaintiffs. In addition, as the number of lead plaintiffs increases, individual plaintiff's incentives to monitor attorney behavior decreases, causing a "free-rider" problem. As a leading article on shareholder monitoring explains, The monitor will continue to expend effort as long as his cost of doing so is less than his expected benefit. But when there are many potential monitors with overlapping interests, the optimal level may prove more elusive. An individual seeking to reduce his own monitoring costs may attempt to rely on the efforts of others; such "freeriding," if widespread, will lead to undermonitoring. See Saul Levmore, Monitors and Freeriders in Commercial and Corporate Settings, 92 Yale L.J. 49, 49 (1982). In short, if the Court appoints only a few lead plaintiffs, those plaintiffs are likely to assume 1069 more responsibility over the suit than if the court appointed hundreds of lead plaintiffs. Because the Court finds that the appointment of 137 lead plaintiffs would frustrate the Act's purposes, the Court denies the Lockheed Plaintiffs Group's motion for appointment as lead plaintiffs. D. AUTHORITY TO APPOINT LEAD PLAINTIFF. As of the date of this order, only three published opinions have denied class members' motions for appointment as lead plaintiffs. As explained above, in In re Donnkenny Inc. Securities Litigation, 171 F.R.D. 156 (S.D.N.Y.1997), the district court denied a group of unrelated class members' motion to be named lead plaintiffs, reasoning that the Act does not permit the aggregation of claims. See id. at 157-58. Instead, the court granted an institutional investor's motion to be named lead plaintiff. See id. at 158. In Chill v. Green Tree Financial Corp., 181 F.R.D. 398 (D.Minn.1998), the district court denied a motion to name 300 class members lead plaintiffs but granted an alternative motion to name a much smaller group of class members lead plaintiffs. See id. at 413-15. Similarly, in In re Advanced Tissue Sciences Securities Litigation, 184 F.R.D. 346 (S.D.Cal.1998), the district court denied a motion to name approximately 250 class members lead plaintiffs and denied a motion to name 165 class members lead plaintiffs. See id. at 352-53. Instead, the court granted an alternative motion to name six members lead plaintiffs. See id. at 353. In all three of these suits, the district courts denied motions to be named lead plaintiffs only to grant motions in the alternative. In the instant suit, the Lockheed Plaintiffs Group's motion is the only one that has been filed. Although the law firm of Milberg, Weiss represented plaintiffs in all three of the above-mentioned suits and represents plaintiffs in this suit, the firm has not filed a motion in the alternative. Instead, the Lockheed Plaintiffs Group's motion, signed by a Milberg, Weiss attorney, asks the Court to name the 137 class members lead plaintiffs and then allow the lead plaintiffs to designate "lead plaintiff representatives" to manage the suit. (Lead Plaintiff Motion, 2:25-28). The Lockheed Plaintiffs Group cites to a recent opinion from this District, Schlagal v. Learning Tree Int'l, CV 98-6384 ABC (Ex), 1999 WL 672306 (C.D.Cal. Feb. 25, 1999), where the court permitted lead plaintiffs to designate lead plaintiff representatives at the class certification stage. See id. at 5-6. The Schlagel court noted that it may "leave the decision of whom to appoint as a smaller representative group to lead plaintiffs and their counsel." Id. at 6 (emphasis added). Contrary to this holding, in a suit such as this one where counsel would have to manage the large Lockheed Plaintiffs Group, permitting the group and its counsel to name representative lead plaintiffs would allow counsel to name nominally interested plaintiffs as a means of seizing control of the suit. This strategy is a novel and veiled attempt to shift the Court's authority to name lead plaintiffs to counsel, effectively nullifying the aim of the Act. Therefore, the Court does not permit the Lockheed Plaintiff's Group to name representatives. This presents the Court with an issue of first impression: If the Court denies a motion to name lead plaintiffs, does the Act compel it to designate a lead plaintiff, or should it wait for another class member to file a motion for the designation of lead plaintiff? The Court finds that the Act advocates the former approach. Under the Act, Not later than 90 days after the date on which a notice is published [announcing the filing of the suit], the court shall consider any motion made by a purported class member in response to the notice, including any motion by a class member who is not individually named as a plaintiff in the complaint or complaints, and shall appoint as lead plaintiff 1070 the member or members of the purported plaintiff class.... 15 U.S.C. § 78u-4(a)(3)(B)(i). The purpose of the notice requirement is to afford institutional investors the opportunity to intervene in these actions. If a court does not receive a response within the prescribed time frame, it must assume that these optimal plaintiffs will not intervene. The ninety day time frame, which would have applied to this suit if it were not a consolidated action, expired on April 15, 1999. Given the Act's mandatory language that the district court "shall appoint [a] lead plaintiff" either within ninety days or as soon as practicable when a motion to consolidate is pending, the Court holds that it must appoint a lead plaintiff at this juncture in the suit. This holding is implicitly supported by In re Oxford Health Plans, Inc. Securities Litigation, 182 F.R.D. 42 (S.D.N.Y.1998). In that suit, three sets of investors moved for the court to appoint them lead plaintiffs. See id. at 43-46. Finding that all three sets of plaintiffs were qualified to represent the class, the Court appointed all three sets of class members joint lead plaintiffs, with each exercising a single vote. See id. Therefore, the court did not grant the letter of class members' motions but instead modified them sua sponte in order to progress with the suit. E. APPOINTMENT OF LEAD PLAINTIFF. When determining which class member to appoint lead plaintiff, a court should consider the rebuttable presumption factors enumerated in the Act, even when the motion is unopposed. These factors are: (1) whether the class member filed the complaint or the motion for lead plaintiff; (2) in the court's determination, whether the class member has the largest financial interest in the relief sought by the class; and (3) whether the class member otherwise satisfied the requirements of Rule 23. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). Courts have also taken the following factors into consideration to determine which class member to appoint lead plaintiff. (1) whether the class member is an institutional investor. See In re Oxford Health Plans, Inc. Sec. Litig., 182 F.R.D. 42, 47 (S.D.N.Y.1998). (2) whether there is evidence that the class member will serve as an efficient monitor of its attorneys. See id. at 46. (3) whether the class member uniquely represents class interests. See id. at 47. Each of the 137 members of the Lockheed Plaintiffs Group filed a "Certification of Named Plaintiff," which states that the member wants to serve as lead plaintiff, the dates the member traded Lockheed stock, the number of shares the member purchased, and the price the member paid per share. (Baron Decl., Exh. A). The Lockheed Plaintiffs Group also presents a statement of loss for each member of the group. (Baron Decl., Exh. B). This loss ranges from $24.99 to $155,765.89. The largest investor is James Corbin ("Corbin"), who alleges a loss of $155,765.89. (Baron Decl., Exh. B). The second largest investor is the City of Philadelphia Board of Pensions and Retirement ("City of Philadelphia"), which alleges a loss of $130,137.50. (Baron Decl., Exh. B). The Court finds that Corbin and the City of Philadelphia would best serve as lead plaintiffs. Both Corbin and the City of Philadelphia meet the rebuttable presumption's first requirement because they both filed the instant motion and signed certifications declaring that they are willing to serve as lead plaintiffs. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). (Baron Decl., Exh. A). Furthermore, Corbin and the City of Philadelphia possess the largest financial interests in the Lockheed stock of all the movants, thereby meeting the rebuttable presumption's second requirement. See 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). 1071 (Baron Decl., Exh. A). The Court also finds that with the appointment of one lead plaintiff who is an individual private investor and one lead plaintiff that is an institutional investor, the lead plaintiffs will represent a broader range of shareholder interests than if the Court appointed an individual or an institutional investor alone. See In re Oxford Health Plans, 182 F.R.D. at 47 (appointing a group of individual investors and institutional investors to serve as joint lead plaintiffs because they would represent a broad range of interests). The Court also finds that Corbin and the City of Philadelphia meet Section 78u-4's Rule 23 requirements. At this stage of the proceeding, proposed lead plaintiffs need only make a preliminary showing that they satisfy the requirements of Rule 23. See Gluck v. Cellstar Corp., 976 F.Supp. 542, 546 (N.D.Tex.1997) (noting that Congress did not require an exhaustive Rule 23 showing). Because the lead plaintiffs will state claims identical to those in the consolidated action arising out of alleged misstatements made between August 13, 1998 and December 23, 1998, their claims arise from the same "course of conduct" that gives rise to the claims of the other class members, thereby meeting the commonality and typicality requirements. See In re United Energy Corp. Solar Power Modules Tax Shelter Investments Sec. Litig., 122 F.R.D. 251, 254-56 (C.D.Cal.1988). Next, a class of at least 137 members makes joinder of all members impracticable, thereby meeting the numerosity requirement. See General Tel. Co. v. Equal Employment Opportunity Comm'n, 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). Finally, no evidence exists to suggest that Corbin and the City of Philadelphia are antagonistic to other members of the class or their attorneys, thereby meeting the adequacy of representation requirement. See Diana Doe v. Los Angeles Unified School Dist., 48 F.Supp.2d 1233 (C.D.Cal.1999). For these reasons, the Court is satisfied that Corbin and the City of Philadelphia meet Rule 23's requirements. However, because Section 78u-4 only requires preliminary class certification findings, the Court does not preclude any party from contesting the ultimate class certification on the basis of the instant findings. See Gluck, 976 F.Supp. at 546. Incidentally, the Court recognizes that none of the class members moving to serve as lead plaintiff possess enough of a financial stake to ensure careful and prolonged monitoring of this suit. The service list in this suit names ten corporate law firms, suggesting that legal fees in this matter are compounding quickly. Even Corbin's and the City of Philadelphia's financial stakes are not weighty enough for them to expend large amounts of time and resources supervising this suit. See In re Oxford Health Plans, 182 F.R.D. at 47 (appointing investors with tens of millions of dollars at stake as lead plaintiffs). To minimize the free-rider problem, the Court nevertheless believes that Corbin and the City of Philadelphia may each exert more control over their attorneys by serving as one of two lead plaintiffs, in contrast to serving as one of 137 lead plaintiffs. Accordingly, the Court appoints Corbin and the City of Philadelphia as lead plaintiffs in this suit. Each shall exercise an equal vote in managing this litigation. See id. at 45 (charging each lead plaintiff with an equal vote to facilitate decision-making). F. APPOINTMENT OF LEAD COUNSEL. Corbin and the City of Philadelphia, like the other 135 members of the Lockheed Plaintiffs Group, move to appoint three law firms to serve as lead counsel: (1) Milberg, Weiss; (2) Schiffrin & Barroway; and (3) Berger & Montague. As to the appointment of lead counsel requirements, the Act states only that "[t]he most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class." 15 U.S.C. § 78u-4(a)(3)(B)(v). Nevertheless, the Act's legislative *1072 history reveals that Congress wanted to vest district courts with the authority to appoint lead counsel to prevent attorneys from racing to the courthouse to be "the first to file." See S.Rep. No. 104-98, at 4-12 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 683-91. Here, Corbin and the City of Philadelphia move to have the same three law firms serve as lead counsel, thereby eliminating potential abuses from attorneys trying to "file first." Nonetheless, the Court finds that the Act would be better served by the appointment of one law firm to manage the case. As explained above, one of the central purposes of the Act is to enable plaintiffs to control counsel. See S.Rep. No. 104-98, at 11 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 690. If the Court appointed three law firms as lead counsel, Corbin and the City of Philadelphia would have to exert their authority in triplicate every time they made a decision. The Court finds that Corbin and the City of Philadelphia are more likely to develop a strong attorney-client relationship if they only have to deal with one central law firm, as opposed to three. Accordingly, the Court will only permit one law firm to serve as lead counsel in this case on the basis that class interests are better served by a central law firm. Upon review of the three firms' resumes, the Court finds that they all have broad experience and success in prosecuting securities fraud class actions. In differentiating between the three firms, the Court finds that Milberg, Weiss' attorneys have signed all the pleadings in the Yousefi and Ketchmeyer actions up to this point in the litigation, thereby displaying a strong familiarity with the facts of this suit. On this basis, the Court finds that Milberg, Weiss is the most capable of serving as lead counsel. See Squyres v. Union Texas Petroleum Holdings, Inc., 1999 Fed. Sec.L.Rep. (CCH) ¶ 90,405 (C.D.Cal. November 2, 1998) (Baird, J.) (finding Milberg, Weiss qualified to serve as lead counsel); In re Advanced Tissue Sciences Sec. Litig., 184 F.R.D. 346, 352 (S.D.Cal. 1998) (same); Chill v. Green Tree Fin. Corp., 181 F.R.D. 398, 403, 413-15 (D.Minn.1998) (same); In re Donnkenny, Inc. Sec. Litig., 171 F.R.D. 156, 158 (S.D.N.Y.1997) (same). Accordingly, the Court denies the Lockheed Plaintiffs Group's motion for appointment of lead counsel, but it names Milberg, Weiss as lead counsel. V. CONCLUSION. The Court strikes sua sponte all moving parties from the motion to consolidate with the exception of Mohammad Yousefi, David Kane, and William Kretchmeyer, and it grants the motion. The caption in this matter shall be: IN RE LOCKHEED MARTIN CORP. SECURITIES LITIGATION. CV 99-372 LGB (RNBx) CLASS ACTION Consolidated with: CV 99-1266 LGB (RNBx) CV 99-1476 LGB (RNBx) The lead plaintiffs shall file a concise consolidated amended complaint within forty-five days after receiving this order. The Court denies the motion to appoint lead plaintiff and lead counsel. The Court names James Corbin and the City of Philadelphia Board of Pensions and Retirement lead plaintiffs and the law firm of Milberg, Weiss, Bershad, Hynes & Lerach as lead counsel. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
876 F.2d 103 Unpublished DispositionNOTICE: 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.Alfonzo JONES, Plaintiff-Appellant,v.Ms. Eileen PEOPLES; Ms. Z. Ryans; Ms. Y. Jones,Defendants-Appellees. No. 88-2212. United States Court of Appeals, Sixth Circuit. June 13, 1989. 1 Before RALPH B. GUY and RYAN, Circuit Judges and DAVID D. DOWD, Jr., District Judge.* ORDER 2 Alfonzo Jones, a pro se Michigan plaintiff, appeals the district court's order dismissing his civil rights action apparently filed under 42 U.S.C. Sec. 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 3 Seeking monetary relief in the amount of 250 billion dollars, Jones sued three employees of the Michigan Department of Social Services (DSS), alleging a constitutional violation relating to the denial of certain welfare benefits. Subsequent to DSS's denial of Jones' request for the benefits, an Administrative Law Judge (ALJ) affirmed DSS's denial of the same. Jones filed the instant claim which the district court dismissed as frivolous, Jones appealed. 4 Upon consideration, we conclude that the district court properly dismissed the complaint as frivolous. Even if Jones' complaint is construed liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Brooks v. Seiter, 779 F.2d 1177, 1179-80 (6th Cir.1985), it appears beyond doubt that Jones could prove no set of facts which would entitle him to relief. See Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.) (per curiam), cert. denied, 108 S.Ct. 333 (1987). Although Jones asserted the existence of a constitutional violation, he never addressed even the basic elements of any cause of action. Hence, having failed to allege any factual basis for his conclusory allegations of unconstitutional conduct, Jones failed to state a cognizable claim for relief. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987); Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986). 5 Accordingly, the order of the district court is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit. * The Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation	{ "pile_set_name": "FreeLaw" }
369 F.2d 488 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.MOORE'S SEAFOOD PRODUCTS, INC., Respondent. No. 15510. United States Court of Appeals Seventh Circuit. Oct. 28, 1966, Rehearing Denied Dec. 23, 1966, Rehearing Denied Dec. 23, 1966,(En Banc) Marcel Mallet-Prevost, Asst. Gen. Counsel, Leonard M. Wagman, Atty., N.L.R.B., Washington, D.C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, George B. Driesen, Atty., N.L.R.B., for petitioner. Myron E. Ropella, Albert H. Petajan, Roemer & Ropella, Milwaukee, Wis., for respondent, Moore's Seafood Products, Inc. Before KILEY, SWYGERT and FAIRCHILD, Circuit Judges. KILEY, Circuit Judge. 1 The Board has petitioned for enforcement of its order based upon findings of Moore's Seafood Products' unlawful coercion and interference with employee rights in violation of section 8(a)(1) and of refusing to recognize and bargain in good faith with the Union1 in violation of sections 8(a)(5) and 8(a) (1). We enforce the Board's order. 2 The Union was certified as bargaining agent of Respondent's employees October 19, 1962. On March 11, 1963, the Union and Moore's entered into a maintenance of membership agreement to run until March 10, 1964, and thereafter from year to year, unless terminated by either party on written notice not less than sixty days prior to any expiration date. Under the terms of the agreement, Respondent could, 'at least' fifteen days before expiration of the contract or any yearly renewal, inform its employees of their right to continue as Union members or withdraw from the Union. In December, 1963, the Union gave due notice of its desire to reopen the contract and negotiations followed until May 20, u964. Moore's conduct during this period is the basis for the 8(a)(1) complaint. On May 25, Moore's challenged the Union majority and refused to recognize it as bargaining agent. The general counsel's complaint alleging the 8(a)(1) and (5) violations was filed on June 19, 1964. 3 The trial examiner found that Respondent had violated section 8(a)(1) but that it did not violate section 8(a)(5). With respect to the 8(a)(1) violation, the Board sustained the trial examiner's finding based on Respondent's circulation on March 2, 3 and 4, 1964, of a petition disavowing the Union among employees, prohibition of employees' conversations about the Union on their own time, suggestion of an 'inside' union and interrogation of and threats to employees over support of the Union. The only issue presented concerning the 8(a)(1) violation is the substantiality of the evidence on the record as a whole. We have considered the objections made, and we hold that there was substantial evidence in the record as a whole to support the findings of the Board.2 4 With respect to the 8(a)(5) violation, the trial examiner found that Moore's refusal to bargain was not unlawful because the Union did not command the support of a majority of the employees on March 1.3 At the hearings Moore's contended that the 'critical date' for determining majority for purposes of the 8(a)(5) claim was March 11, 1964, the day after the contract, as renewed, expired. The examiner decided, however, that because of Respondent's unfair labor practices beginning on March 2, the 'critical date' was March 1, subject to evidence that defections after that date were not caused by the unfair labor practices. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 687, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732, 744 (1954), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). 5 The trial examiner decided that on March 1 the bargaining unit consisted of 77 employees, finding that all but one of a group referred to as 'laid off employees' /4/ should be excluded. He found that 44 of these 77 were Union members on March 1.5 He further found, however, that in February, prior to any unfair labor practices, six of the Union members had an intention to leave the Union and that this evidence 'disentangled' their subsequent defections from other defections attributable to the unfair labor practices. This finding rested upon his inference of 'unequivocal action' by the six employees, demonstrating their desire not to be represented. Five of these employees had signed a paper repudiating the Union, and the other, as well as two of the signers, had expressed their intentions to leave the Union to the Union steward. Thus, the examiner concluded that only 38 out of 77 supported the Union. 6 The Board disagreed with the examiner and found that Moore's had unlawfully refused to bargain with the Union. The only finding of the Board we need consider is the inclusion of the six employees excluded by the examiner in determining majority.6 The Board found that the six employees took no unequivocal action to repudiate the Union until each wrote a letter of resignation to the Union and gave copies to Respondent and that since these letters were written after March 1 their resignations did not impair the Union majority. If the Board's finding is justified, the 8(a)(5) violation is established. 7 There is no question of credibility of the testimony of the six employees, even though the examiner stated 'I credit their testimony.' Their testimony is uncontroverted. 8 From the uncontroverted testimony, the Board was entitled to draw the inference that the action taken by the six employees was not unequivocal. Universal Camera Corp. v. NLRB, 340 U.S. 474, 494, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It was a reasonable exercise of the Board's expertise to rule that the evidence of disaffection in February was not 'determinative' to disentangle the later unequivocal resignations from the other effects of Respondent's unfair labor practices.7 See Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It was within the province of the Board to infer that the destruction of the signed paper and the comments to the Union steward indicated merely an unsettled attitude prior to the unfair labor practices. NLRB v. National Seal Corp., 127 F.2d 776, 779 (2d Cir. 1942). 'It is for the Board, not the courts to determine how the effect of prior unfair labor practices may be expunged.' Franks Bros. Co. v. NLRB, 321 U.S. 702, 704, 64 S.Ct. 817, 818, 88 L.Ed. 1020 (1944). 9 We need not and do not reach the question of what evidence is necessary to rebut the presumption that defections subsequent to unfair labor practices will be attributed to those practices. 10 We need go no further in affirming the Board's decision, reported at 152 N.L.R.B. No. 66 (May 19, 1965). So far as needed to support our judgment and reasoning, we adopt that decision. 11 The order will be enforced. 1 Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 64 2 We need not discuss the Board's challenged disagreement with the examiner's finding against the claim that Respondent was guilty of surveillance. There is sufficient basis, without that element, for the 8(a)(1) violation 3 The defense of good faith doubt of majority status was not raised in this court 4 These employees were laid off by Moore's because of the termination of the night shift. The factual issue before the trial examiner was whether they had been terminated or merely laid off without a loss of employee rights. The examiner found that with one exception (Libakken) they were terminated prior to March 1 5 The trial examiner referred to '42 or 43' depending on the inclusion of one Schueler. This reference did not include Libakken, an admitted Union member who was one of the 'laid off' employees. The exclusion of Libakken from this total is the apparent source of confusion as to the total found by the Board to support the Union. See note 6 infra 6 In determining the size of the bargaining unit, the Board included an additional five of the 'laid off' employees, plus two others, for a total of 84. The number of Union supporters was found to be 49, on the basis of the following: the addition of the seven added to the unit total (who were admittedly Union members); the addition of the six employees excluded by the examiner because of their preunfair-labor-practice intention to leave the Union; and the subtraction of one employee included by the examiner but found by the Board to have joined the Union after March 1. Although there seems to be a disparity of one employee in the computations of the Board and the examiner (our computations based on the Board inclusions and exclusion put the number at 50), there is no need to consider it. If the Board was correct in including the six employees, the Union had a majority (at least 42 of 77, excluding Schueler and Libakken) without regard to the other findings 7 The Board's continued reference to the 'critical date' somewhat clouds the issue in this case. The rule supporting the choice of the 'critical date' is that an employer may not assert a lack of majority status as a defense to an 8(a)(5) violation when the defections are due to his previous unfair labor practices. Medo Photo Supply Co. v. NLRB, 321 U.S. 678, 687, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); Joy Silk Mills, Inc. v. NLRB, 87 U.S.App.D.C. 360, 185 F.2d 732, 744 (1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951). Our holding in this case is confined to the Board's refusal to consider 'equivocal' evidence as determinative of the cause of the defections of the six employees involved	{ "pile_set_name": "FreeLaw" }
355 F.Supp. 314 (1972) Modesto Montañez ALAMO, Plaintiff, v. Elliot RICHARDSON, Secretary of Health, Education and Welfare, Defendant. Civ. No. 921-70. United States District Court, D. Puerto Rico. December 22, 1972. 315 James A. Toro, San Juan, P. R., for plaintiff. Julio Morales-Sanchez, U. S. Atty., for defendant. TOLEDO, District Judge. ORDER This is an action brought by plaintiff pursuant to Section 205(g) of the Social Security Act (hereinafter called the Act), Title 42, United States Code, Section 405(g), seeking a judicial review of a final decision of the Secretary of Health, Education and Welfare (hereinafter named the Secretary), holding that he is not entitled to a period of disability and to disability insurance benefits, under Sections 216(i) and 223 of the Act, Title 42, United States Code, Sections 416(i) and 423. Plaintiff, a 55 year old man with first grade education, alleged before the Secretary that he became unable to work in 1962, due to impaired discs and arthritis.[1] The Secretary determined plaintiff met the special earnings requirements at the date he alleged his impairments originated,[2] but found he was not disabled within the meaning of the Act. All of the administrative remedies were exhausted when the decision of the hearing examiner became the final decision of the Secretary, once the Appeals Council, on September 4, 1970, approved said decision. The statutory scheme of judicial review being limited in nature, this Court is bound to ascertain only whether the record contains substantial evidence to support the Secretary's findings. Santiago v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 336 F.Supp. 1071; Rosario v. Secretary of Health, Education and Welfare (D.C.P. R.1971), 324 F.Supp. 1321. The plaintiff asserts he has been unable to work since 1962, with the exception of 2 or 3 days in 1965 (when he worked only four hours); that the record before the Court is less than impartial, occasioned principally by the absence of a counsel to represent him before the Secretary; and that the said absence of counsel representation has prevented him from meeting his evidentiary burden and properly presenting his case before the Secretary. Plaintiff also asserts that the hearing examiner committed abuse of discretion and, hence, reversible error, for he failed to act as an impartial arbitrator, seeing that all relevant facts were fully developed during the course of the hearing. Lastly, plaintiff contends that the hearing examiner's decision was not based on substantial evidence, for exclusion was made of some documentary evidence plaintiff intended to introduce at the hearing; for 316 the hearing examiner made misleading unqualified findings of facts regarding his education and ability to read, count, give change and solve simple arithmetic problems without any foundation on the record; for the hearing examiner has concluded he had no significant mental impairment on or before March 31, 1965, based on a document which merely specifies the date he began to receive treatment (see note 1); and for the hearing examiner found he was able to do his prior job on or before March 31, 1965, when the record show the contrary. Plaintiff submits that the hearing examiner's failure to explore the facts adequately, as well as his making findings of fact which are clearly unsubstantiated by any evidence taking the record as a whole, constitutes reversible error, thereby entitling him to judgment in his favor. In the alternative, plaintiff requests the Court to remand the cause to the Secretary for a rehearing, where he would present evidence that will establish his physical and mental condition during the critical period in which he last met the earnings requirements (see note 2); at which rehearing, he will be represented by his appointed counsel, for this cause. It is defendant's basic position that the only medical evidence relating to the period during which plaintiff was insured for disability purposes is a report from the Puerto Rico Industrial Commission dated April 17, 1963, and that the remaining medical evidence relates to examinations made after March 31, 1965, when plaintiff's insured status expired. Defendant adds that the pertinent medical evidence, when considered with the non-medical evidence, fails to satisfy the disability requirements of the law; that is, that said evidence fails to establish that plaintiff is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment, which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; and which can be demonstrated by evidence supported by objective data obtained by medically acceptable clinical and laboratory techniques. With respect to the medical evidence subsequent to the date plaintiff last met the insured status requirements, defendant contends that said evidence does not entitle plaintiff to disability benefits, for at most, it can reflect that plaintiff's impairment reached disabling severity after the expiration of his insured status, and that for said reason, is not relevant, even though the impairment itself may have existed before plaintiff's insured status. In relation to plaintiff's lack of legal representation at the hearing before the hearing examiner, it alleges that it is no ground for remand; that plaintiff was notified of his right to be represented by counsel, thus afforded due process by the defendant, but apparently, chose to proceed with the hearing without counsel; and that plaintiff has failed to show that he was prejudiced or that the proceedings were unfair. Finally, defendant asserts there was no abuse of discretion in the hearing examiner's development of the evidence. Although we are aware that the burden is upon the plaintiff to prove he is entitled to the benefits of the Act, Reyes Robles v. Finch (1 Cir. 1969), 409 F.2d 84; De Jesús Faría v. Finch (D. C.P.R.1971), 336 F.Supp. 1069; Torres v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 333 F.Supp. 676, and not upon the Secretary to make an initial showing of nondisability to perform a job, De Jesús Faría v. Finch, supra; de la Cruz v. Secretary of Health, Education and Welfare (D.C.P. R.1971), 331 F.Supp. 522, we are of the opinion that said rules, even though being very convenient for the expediency of process on the administrative level, should be applied with caution in cases like the one before us. Román v. Secretary of Health, Education and Welfare (D.C.P.R.1972), 355 F.Supp. 646 (Memorandum Opinion and Order of November 15, 1972). We have before us a plaintiff with only first grade education, *317 who can hardly understand the administrative process before the defendant, who was the subject of a hearing which, although held in the Spanish language, was in our opinion, too technical for him to fully understand, especially being him at the time of the hearing under treatment for a mental condition and not represented or assisted by counsel. In Leon v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 337 F.Supp. 905, we dealt with a situation similar to the present one. Likewise, in Román v. Secretary of Health, Education and Welfare, supra. In this respect, it suffices to say that when a claimant appears without counsel at the administrative hearing and the presence of a mental impairment is obvious, be it because it is observable by the hearing examiner or because medical evidence is presented in that respect, it is the duty of the hearing examiner to adequately explore all aspects of the claim before him. Otherwise, legitimate claims, such as mental impairments, could unjustly go unattended for failure to properly act upon them. We are of the opinion that in this case the hearing examiner failed to adequately explore all aspects of the claim. It appears to us that although the physical impairments alleged by the plaintiff are his main complaint, the record shows that his mental condition may be a significant factor in determining the severity of his disability. Román v. Secretary of Health, Education and Welfare, supra. The evidence in record before us, in relation to the mental condition of plaintiff, is insufficient for us to conclude that the record contains substantial evidence to support the findings of the Secretary (see Note 1). Likewise, it is our opinion that in view of the factors we previously mentioned, this plaintiff may have been prevented from adequately presenting his claim before the Secretary. Moreover, plaintiff has satisfied us that with representation of counsel at the rehearing, new medical evidence and a better case will be presented. Toledo v. Secretary of Health, Education and Welfare (1 Cir. 1971), 435 F.2d 1297. Furthermore, by failing to adequately inquire about plaintiff's mental condition, defendant has acted unfairly. Toledo v. Secretary of Health, Education and Welfare, supra; Torres v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 337 F.Supp. 1329. In view of the foregoing, we are of the opinion that a rehearing to further inquire into plaintiff's physical and mental impairments is proper and necessary, at which time the plaintiff is to be assisted by counsel. Wherefore, this Court finds there is good cause to remand under Section 205(g) of the Act, Title 42, United States Code, Section 405(g), and the Court, accordingly, hereby Orders, adjudges and decrees, that the present action be remanded to the Secretary of Health, Education and Welfare, with specific instructions that the complete psychiatric record of the plaintiff be made available and made part of the record; that a consultative psychiatric examination be made if necessary to clearly establish whether the mental impairment constitutes a disability as defined by the Act at the time plaintiff last met the insured status requirements; that any necessary and appropriate examinations with regard to his physical impairments be made; and that the defendant carry out any other further proceeding they may deem proper consistent with this memorandum opinion. The Court also deems proper to recommend that plaintiff be assisted at the rehearing by his appointed counsel on this cause. It is so ordered. NOTES [1] The record before the Court reveals plaintiff has been receiving psychiatric treatment at the Caguas Mental Health Clinic since September 9, 1969, but no mention is made as to the onset date of the mental impairment, the diagnosis and prognosis, etc. [2] Plaintiff met the earnings requirement through the quarter ending March 31, 1965. Therefore, on the basis of his applications of November 28, 1967, plaintiff must establish that he was under a disability which commenced prior to March 31, 1965, when he last met the special insured status requirements.	{ "pile_set_name": "FreeLaw" }
THIRD DIVISION March 28, 2007 No. 1-06-2216 CINCINNATI INSURANCE COMPANY, ) Appeal from the as Subrogee of Harbour Contractors, Inc., ) Circuit Court of BAKER CONCRETE CONSTRUCTION, and ) Cook County. NICHOLAS NOWICKI, ) ) Plaintiffs, ) ) v. ) ) Nos. 95 CH 10953, GATEWAY CONSTRUCTION COMPANY, INC.,) 95 CH 6802, ) 97 CH 1126 Defendant and Counterplaintiff-Appellant ) ) ) (Lexington Insurance Company, ) The Honorable ) David R. Donnersberger, Defendant and Counterdefendant-Appellee). ) Judge Presiding. PRESIDING JUSTICE THEIS delivered the opinion of the court: This appeal arises from an order of the circuit court granting summary judgment in favor of defendant Lexington Insurance Company (Lexington) against plaintiff Cincinnati Insurance Company (Cincinnati)1 and defendant, counterplaintiff Gateway Construction Company, Inc. (Gateway). On appeal, the dispute concerns whether certain parties were covered as additional insureds under the terms of Gateway’s excess liability policy issued by Lexington. Gateway contends that the trial court erred in erroneously interpreting the underlying policy endorsement language, arguing that an oral promise to name someone as an additional insured, memorialized 1 Cincinnati is not a party to this appeal. 1-06-2216 in writing after the injury for which coverage is sought, is sufficient to create additional insured status under the policy. For the following reasons, we disagree and affirm the judgment of the circuit court. BACKGROUND Harbour Contractors, Inc. (Harbour), a general contractor, entered into an agreement with Willowbrook Center Associates to construct a Mark Shale Warehouse facility designed by architect Nicholas Nowicki. Harbour also entered into an agreement with Baker Concrete Construction (Baker), a subcontractor, under which Baker was responsible for the concrete work on the project. Baker, in turn, entered into an informal, unwritten agreement with subcontractor Gateway to install certain concrete reinforcements for the project, which agreement was later memorialized in writing and executed by Baker on June 4, 1990. On January 10, 1990, prior to the execution of the written agreement, Thomas Scully, a metal worker employed by Gateway, was injured on the jobsite. On the date of the injury, Baker was insured under a comprehensive general liability (CGL) policy issued by Liberty Mutual Insurance Company (Liberty) and under an excess liability policy issued by Cincinnati. Harbour and Nowicki were covered as additional insureds under Baker’s policies. Gateway was insured under a CGL policy issued by National Union Insurance Company (National) and under an excess liability policy issued by Lexington. It is alleged, for purposes of summary judgment, that Gateway’s representative had orally agreed to name Baker, Harbour and Nowicki as additional insureds under its policy with National. The Baker/Gateway written agreement was drafted on January 26, 1990, after the injury. The original 2 1-06-2216 agreement did not contain any additional insured requirements. Subsequently, an addendum to the agreement, dated February 7, 1990, included an additional insured provision and that contract was executed by Baker five months after the accident on June 4, 1990. A certificate of insurance naming Baker, Harbour and Nowicki as additional insureds was issued two months after the accident, on March 15, 1990. In 1991, Scully brought suit against Harbour, Baker and Nowicki to recover for his injuries. Harbour, Baker and Nowicki tendered the defense of the suit to National. National denied its duty to defend, maintaining that Harbour, Baker and Nowicki were not additional insureds under its policy with Gateway because a written agreement to add them had not been executed at the time of Scully’s accident. As a result, the defense was taken over by Liberty, Baker’s primary insurer. In 1996, Scully’s suit settled for $2.5 million. Liberty paid its policy limit, and Cincinnati, Baker’s excess insurer, paid the remainder of the settlement. Liberty then assigned its right to seek recovery of its portion of the settlement to Cincinnati. Meanwhile, in 1995, Harbour, Baker and Nowicki filed suit against National seeking a declaration that National had a duty to defend and indemnify them in Scully’s underlying suit. They argued that they were additional insureds under National’s policy with Gateway by virtue of Gateway’s oral promise to make them additional insureds. Cincinnati, as the subrogee of Harbour, Baker and Nowicki, was substituted as the plaintiff in that suit. Cincinnati and National filed cross-motions for summary judgment. After the circuit court denied those motions, Cincinnati and National subsequently settled their dispute for the limits of the National policy. 3 1-06-2216 Cincinnati then filed suit against Lexington and Gateway, alleging that Harbour, Baker and Nowicki were additional insureds under Gateway’s policies with both National and Lexington, and, therefore, were entitled to excess coverage from Lexington. Alternatively, Cincinnati alleged that Gateway breached its oral contract with Baker when it failed to obtain insurance for Baker, Harbour and Nowicki. Gateway filed a counterclaim against Lexington alleging that it had breached its contract with Gateway in denying excess coverage to Harbour, Baker and Nowicki. Thereafter, Gateway filed a motion for summary judgment on Cincinnati’s claims against it, and also filed a motion for summary judgment with respect to its claims against Lexington. Lexington then filed a motion for summary judgment on Cincinnati’s and Gateway’s claims against it. The court found that the threshold issue was whether the alleged oral agreement between Gateway and Baker would be sufficient to provide additional insured coverage under the National and Lexington policies. The court held that the terms of National’s policy were unambiguous and that pursuant to the language of the policy, a mere oral promise was insufficient to grant coverage. Accordingly, the circuit court denied Gateway’s motions and granted summary judgment in favor of Lexington. Gateway filed its timely appeal. ANALYSIS A motion for summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file, taken in the light most favorable to the nonmoving party, establish that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004). The standard of review of an order 4 1-06-2216 granting summary judgment is de novo. Chatham Foot Specialists, P.C. v. Health Care Service Corp., 216 Ill. 2d 366, 376, 837 N.E.2d 48, 54-55 (2005). The threshold issue raised by Gateway is whether the alleged oral agreement between Baker and Gateway to procure additional insured coverage is sufficient to provide coverage under the language of National’s policy. In interpreting the language of the policy, we must consider that an insurance policy is a contract and, thus, the rules governing the construction of other types of contracts also apply to insurance policies. Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 416, 860 N.E.2d 280, 285 (2006). The primary objective is to ascertain and give effect to the intent of the parties as expressed in the agreement. Nicor, Inc., 223 Ill. 2d at 416, 860 N.E.2d at 286. In reaching that objective, the court construes the policy as a whole, taking into account the type of insurance, the nature of the risks, and the overall purpose of the contract. Nicor, Inc., 223 Ill. 2d at 416, 860 N.E.2d at 286. Where the provisions of the policy are clear and unambiguous, they will generally be applied as written, unless it contravenes public policy. Nicor, Inc., 223 Ill. 2d at 417, 860 N.E.2d at 286. Nevertheless, a term is not ambiguous merely because it is not defined or “because the parties can suggest creative possibilities for its meaning.” Nicor, Inc., 223 Ill. 2d at 417, 860 N.E.2d at 286. Rather, it is only ambiguous “if the term is susceptible to more than one reasonable interpretation.” Nicor, Inc., 223 Ill. 2d at 417, 860 N.E.2d at 286. Whether a contract is ambiguous is a question of law, subject to de novo review. Nicor, Inc., 223 Ill. 2d at 416, 860 N.E.2d at 285. National’s policy endorsement provides, in pertinent part as follows: 5 1-06-2216 “[T]he following are Additional Insureds under this policy: All corporations, partnership[s] and or/[sic] affiliated individuals promised to be added as additional insured[s] under a written contract with the Named Insured.” Gateway initially contends that the clear and unambiguous language of the policy merely requires an oral promise to name someone as an additional insured in a written contract at a later date. Alternatively, Gateway argues that the language could be construed to mean that the insured must promise, in writing, to add the additional insured, and as a result of that ambiguity, it must be construed in favor of coverage for Gateway. The only reasonable interpretation of National’s endorsement is that a promise in writing is required to grant an additional insured coverage under the policy. To hold otherwise would effectively nullify the import of the words “under a written contract” in the endorsement. A policy must not be interpreted in a manner that renders provisions of the policy meaningless. Atwood v. St. Paul Fire & Marine Insurance Co., 363 Ill. App. 3d 861, 864, 845 N.E.2d 68, 71 (2006). Indeed, Gateway concedes that a written agreement is ultimately necessary under the language of the endorsement, but contemplates that the written agreement could be made “at a later time.” Gateway’s interpretation would render the need for a written agreement meaningless because it would allow the insured to reduce an oral agreement to writing after the loss has occurred, effectively making coverage retroactive. That construct is inconsistent with the provisions of the policy that indicate that coverage is triggered at the time of the “bodily injury.” Alternatively, Gateway’s interpretation is unreasonable if it maintains that coverage is 6 1-06-2216 triggered at the time of the oral promise. Under that scenario, there may ultimately be no written agreement to procure additional insured coverage, again rendering the words “under a written contract” superfluous. If that were the case, the endorsement would merely have been drafted to provide coverage for any entity the insured promised to add as an additional insured. Nevertheless, it was not drafted in that limited way. Thus, giving reasonable meaning to each term, and construing the policy as a whole, it is evident that under the terms of National’s endorsement, the only reasonable interpretation of the language is that it requires a promise under a written agreement by the insured, in effect at the time of the claimed loss. Here, there was no promise under a written agreement at the time of the accident, and no other documentation confirming additional insured coverage at the time of the accident. Even the original draft agreement between Baker and Gateway, dated after the accident, did not provide for additional insured coverage, and the subsequent addendum adding that requirement was not executed until five months after the Gateway employee was injured. A certificate of insurance was not issued until March 1990, two months after the accident. Under these circumstances, there is no coverage. See, e.g., West American Insurance Co. v. J.R. Construction Co., 334 Ill. App. 3d 75, 80-81, 777 N.E.2d 610, 615 (2002) (although there was no written agreement as required by the endorsement, there was other evidence establishing a contractual commitment including a certificate of insurance, a letter from the insurer, and several internal memoranda from the insurer confirming additional insured status); United States Fire Insurance Co. v. Hartford Insurance Co., 312 Ill. App. 3d 153, 156-57, 726 N.E.2d 126, 129 (2000) (where insuring agreement requires a written contract, an oral contract alone is 7 1-06-2216 insufficient). Additionally, although not alleged here, Gateway’s interpretation to allow the insured to reduce an oral agreement to writing after the loss has occurred could lead to collusion by the interested parties to create coverage by manufacturing an oral promise after the injury occurs. Thus, Gateway’s interpretation of National’s endorsement could lead to a violation of public policy and would be contrary to the intent of the insuring agreement. For all of the foregoing reasons, a mere oral promise to add Harbour, Baker and Nowicki to the National policy as additional insureds was insufficient under the terms of the policy to bind National to provide them with coverage for the accident. As a result, there is also no coverage under Lexington’s excess policy as it only covers those additional insureds covered under National’s policy. We therefore need not address Lexington’s additional contentions. Accordingly, we affirm the judgment of the circuit court. Affirmed. GREIMAN and CUNNINGHAM, JJ., concur. 8 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT _________________________________________________________________ CINCINNATI INSURANCE COMPANY, as Subrogee of HARBOUR CONTRACTORS, INC., BAKER CONTRACTORS, INC., and NICHOLAS NOWICKI, Plaintiffs, v. GATEWAY CONSTRUCTION COMPANY, INC., Defendant - Counter Plaintiff - Appellant, (Lexington Insurance Company, Defendant - Counter Defendant - Appellee.) ________________________________________________________________ No. 1-06-2216 Appellate Court of Illinois First District, Third Division Filed: March 28, 2007 _________________________________________________________________ PRESIDING JUSTICE THEIS delivered the opinion of the court. Greiman and Cunningham, JJ., concur. _________________________________________________________________ Appeal from the Circuit Court of Cook County Honorable David R. Donnersberger, Judge Presiding _________________________________________________________________ For DEFENDANTS - William J. McKenna, Jr. APPELLANTS Michael S. Shapiro Foley & Lardner LLP 321 N. Clark St. Chicago, IL 60610 For PLAINTIFF - James P. McCarthy APPELLEE Patricia M. Kelly Gunty & McCarthy 150 S. Wacker Dr. Chicago, IL 60606	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ HOWARD GREENBERG, DENISE GREENBERG, PARENTS OF J.G., A MINOR, Petitioners-Appellants v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee ______________________ 2016-1187 ______________________ Appeal from the United States Court of Federal Claims in No. 1:08-vv-00024-TCW, Judge Thomas C. Wheeler. ______________________ Decided: May 6, 2016 ______________________ HOWARD GREENBERG, DENISE GREENBERG, J.G., Kihei, HI, pro se. HEATHER LYNN PEARLMAN, Torts Branch, Civil Divi- sion, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by BENJAMIN C. MIZER, RUPA BHATTACHARYYA, VINCENT J. MATANOSKI. 2 GREENBERG v. SECRETARY OF HEALTH ______________________ Before TARANTO, SCHALL, and HUGHES, Circuit Judges. PER CURIAM. When he was one-year old, J.G., child of Howard and Denise Greenberg, received a measles, mumps, and rubella vaccination. One year later, he was diagnosed with a form of autism. A few years after J.G.’s diagnosis, the Greenbergs filed a petition with the United States Court of Federal Claims seeking compensation under the National Vaccine Injury Compensation Program of the National Childhood Vaccine Injury Act of 1986, codified as amended at 42 U.S.C. § 300aa-1 et seq. A special master dismissed their petition as untimely and for failure to show that J.G. suffered a relevant post-vaccination injury, and the Court of Federal Claims entered final judgment. The Greenbergs did not appeal from that judgment, but they sought post-judgment relief by filing a motion for reconsideration. The special master denied their motion, and the Court of Federal Claims affirmed. Because the special master’s refusal to reconsider his decision showed no abuse of discretion, we affirm. BACKGROUND J.G. was born on April 10, 2003. He passed all devel- opmental milestones at several “well-child” doctor visits during his first year. On April 13, 2004, J.G. received a vaccination for measles, mumps, and rubella (MMR). Between that visit and his 15-month well-child visit, the Greenbergs called J.G.’s doctors at least three times, concerned about J.G.’s swollen gums and fussiness (the medical notes refer to molars coming in), bumps on his limbs and torso, and an allergic reaction to peanuts. At his 15- and 18-month well-child visits in July and October 2004, J.G.’s medical records show him continuing to meet all developmental goals. And the medical notes record GREENBERG v. SECRETARY OF HEALTH 3 “none” next to “shot reaction” through J.G.’s first 18 months. At his two-year well-child visit, J.G.’s parents raised concerns about his tantrums, screeching, and limited speech. Half a year later, in January 2006, a pediatrician determined that J.G. had a significant speech delay, unusual behavior patterns, and impaired social interac- tions. In the pediatrician’s opinion, J.G.’s behavior was consistent with Pervasive Developmental Disorder, a variant of autism. On January 14, 2008, the Greenbergs filed, in the Court of Federal Claims, a petition alleging that J.G.’s MMR vaccine caused his autism and that the National Vaccine Injury Compensation Program thus required compensation. To show entitlement to compensation, the Greenbergs needed to show by a preponderance of the evidence either (a) that J.G. had received a vaccine listed on the Vaccine Injury Table and suffered an injury listed on the Table as corresponding to that vaccine (a “table injury”), without additional proof of causation, or (b) that administration of a Table-listed vaccine had actually caused or significantly aggravated some injury not listed on the Table for that vaccine. 42 U.S.C. §§ 300aa-13(a)(1), 300aa-11(c)(1); Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1335 (Fed. Cir. 2010). Autism was (and is) not a table injury for the MMR vaccine. 42 U.S.C. § 300aa-14; 42 C.F.R. § 100.3. The court assigned the Greenbergs’ petition to a spe- cial master. 42 U.S.C. §§ 300aa-11(a)(1), 300aa-12(d). Initially, the Greenbergs’ petition was considered during a multi-case proceeding about autism—the Omnibus Au- tism Proceeding. See Cedillo, 617 F.3d at 1334; Haz- lehurst v. Sec’y of Health & Human Servs., 604 F.3d 1343, 1345 (Fed. Cir. 2010). When that proceeding ended, the Greenbergs filed an amended petition, seeking compensa- tion only for a table injury based on the allegation that 4 GREENBERG v. SECRETARY OF HEALTH J.G. had suffered an encephalopathy within 15 days of receiving the April 2004 MMR vaccine. 42 U.S.C. § 300aa-14(a)(II)(B). On December 8, 2014, the special master dismissed the Greenbergs’ petition. Greenberg v. Sec’y of Health & Human Servs., No. 08-24V, 2014 WL 7496604, at 1 (Fed. Cl. Office of Special Masters Dec. 8, 2014). He first con- cluded that their petition was time-barred. J.G. received his MMR vaccine on April 13, 2004, and if his symptoms began within 15 days (as alleged), the petition for com- pensation had to be filed within 36 months of April 28, 2004, 42 U.S.C. § 300aa-16(a)(2), i.e., April 28, 2007. But the Greenbergs filed their petition in January 2008, beyond the due date. Greenberg, 2014 WL 7496604, at 8–9. The special master also found that equitable tolling did not excuse the lateness of the petition, rejecting the argument that the government’s endorsement of certain vaccine studies was fraudulent and prevented a timely filing. Id. at 9–10. The special master alternatively determined that the Greenbergs had failed to demonstrate by a preponderance of the evidence that J.G. had suffered, within 15 days of receiving his MMR vaccine, an “acute encephalopathy,” followed by at least six months of a “chronic encephalopa- thy.” Id. at 13–15 (citing 42 C.F.R. § 100.3(b)(2)). The special master addressed two pieces of evidence concern- ing the onset of the alleged acute encephalopathy. One was a December 2012 letter, in which Mrs. Greenberg stated that the Greenbergs “first noticed that [J.G.] was sick when he had a fever and seemed very sensitive to his surroundings like to light and sound” and “just seemed weak and out of it and very irritable”; the other was an undated letter from Dr. Kevin Passer confirming the consistency of the descriptions in Mrs. Greenberg’s letter with an acute encephalopathy. Id. at 14. Because, however, those letters did not state when J.G. experienced the described symptoms, the special master found them to GREENBERG v. SECRETARY OF HEALTH 5 be insufficient proof of the onset of an acute encephalopa- thy within 15 days of J.G.’s MMR vaccination. Id. at 14. Moreover, the special master found that J.G.’s irritability and sensitivity to his surroundings did not indicate “a significantly decreased level of consciousness,” a defining symptom of an acute encephalopathy. Id. (citing 42 C.F.R. § 100.3(b)(2)(i)). The special master also concluded that another letter by Dr. John Green showed no more than that J.G. suffered a metabolic encephalopathy, a type of encephalopathy not covered by the Vaccine Injury Table. Id. at 15 n.17 (citing 42 C.F.R. § 100.3(b)(2)(iii)). Likewise, none of J.G.’s medical records between his one- year well-child visit (when he received the MMR vaccine) and his two-year visit indicated that J.G. had suffered symptoms of an acute or chronic encephalopathy. Id. at 14. The Greenbergs did not timely file a motion seeking review of the special master’s decision by the Court of Federal Claims. Accordingly, the special master’s deci- sion became a final judgment on January 8, 2015. 42 U.S.C. § 300aa-12(e); U.S. Ct. Fed. Claims, App’x B, Vaccine R. 23 (Vaccine Rule 23). On February 3, 2015, the Greenbergs moved for re- consideration of the special master’s decision. The special master, to whom the motion was assigned, denied the motion on March 20, 2015. He considered the motion under Vaccine Rule 36(a)(2), which allows a petitioner, after entry of judgment, to move “for reconsideration pursuant to [U.S. Ct. Fed. Claims R. (RCFC)] 59 or oth- erwise seek[ ] relief from a judgment or order pursuant to RCFC 60.” Insofar as the motion would be read to seek reconsid- eration of the December 2014 special master’s decision, the special master deemed it untimely and also outside RCFC 59 because the Greenbergs had not sought judicial review of the December 2014 decision. Insofar as the 6 GREENBERG v. SECRETARY OF HEALTH motion would be read to challenge the January 2015 judgment, the special master concluded that RCFC 60(a) was unavailable because the Greenbergs did not allege any “clerical mistakes,” “oversights,” or “omissions” in that judgment. The special master also rejected reconsid- eration under RCFC 60(b). Because Dr. Passer’s and Dr. Green’s letters did not support the Greenbergs’ table encephalopathy claim, the special master determined that oral testimony from the Greenbergs could not change the result, and he ultimately concluded that no other reason justified reconsideration of his no-encephalopathy finding. And the special master again rejected the Greenbergs’ equitable-tolling argument, while adding that, even if their petition had been timely filed, the Greenbergs’ failure to prove a table encephalopathy independently prevented them from receiving compensation. On March 12, 2015, before the special master ruled on the reconsideration motion, the Greenbergs filed a “Notice of Review” in this court. On June 10, 2015, we concluded that we lacked jurisdiction, because our jurisdiction does not encompass direct review of special masters’ decisions. J.A. 42; see Grimes v. Sec’y of Dep’t of Health & Human Servs., 988 F.2d 1196, 1198 (Fed. Cir. 1993). We trans- ferred the Greenbergs’ notice of review to the Court of Federal Claims in part—not for review by that court of the January 2015 judgment (time had run out on obtain- ing any such review), but for possible review of the special master’s March 2015 order denying reconsideration. The Court of Federal Claims, acting “in the interest of justice,” reviewed and affirmed the special master’s order refusing reconsideration as not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Greenberg v. Sec’y of Health & Human Servs., No. 08-24V, 2015 WL 6684703, at *2–3 (Fed. Cl. Nov. 2, 2015). The Greenbergs now appeal from the Court of Federal Claims’ decision. 42 U.S.C. § 300aa-12(f). We have jurisdiction under 28 U.S.C. § 1295(a)(3). GREENBERG v. SECRETARY OF HEALTH 7 DISCUSSION We review de novo the Court of Federal Claims’ affir- mance of the special master’s decision denying reconsid- eration. See Hines v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 1518, 1523–24 (Fed. Cir. 1991). In effect, we review the special master’s underlying decision, set- ting it aside only if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See id. at 1524; Vaccine Rule 36(b)(7). The special master determined, and the Greenbergs do not dispute, that the motion for reconsideration should be evaluated only under Vaccine Rule 36(a)(2), and even then only as seeking post- judgment relief under RCFC 60(b). The special master did not abuse his discretion in finding no Rule 60(b) ground justifying reconsideration of his determination that the Greenbergs had failed to show that J.G. suffered a table encephalopathy. In his Decem- ber 2014 decision, the special master correctly described the statutes and regulations governing entitlement to compensation for a table encephalopathy, and he dis- cussed at length the application of those laws to the Greenbergs’ medical records, affidavits, and letters. Regarding J.G.’s alleged table encephalopathy, the Greenbergs have pointed us to no evidence or arguments undermining the adverse finding on that issue, let alone under the demanding standard for Rule 60(b) relief. The special master likewise acted within his discre- tion in rejecting the Greenbergs’ argument that reconsid- eration was warranted because they had been denied an evidentiary hearing before the December 2014 decision. A special master may, but is not required to, conduct an evidentiary hearing. 42 U.S.C. § 300aa-12(d)(3)(B)(v); Vaccine Rule 8(d). The record does not show that the Greenbergs requested an evidentiary hearing, although they could have. See Vaccine Rule 6(b). In any event, the Greenbergs filed at least 140 exhibits and participated in 8 GREENBERG v. SECRETARY OF HEALTH several status conferences with the special masters as- signed to their petition, and they have not identified what additional evidence they would have submitted or argu- ments they would have made at an evidentiary hearing or how such evidence and arguments could have changed the outcome of their case. In these circumstances, we see no abuse of discretion in rejecting the lack-of-evidentiary- hearing basis for reconsideration. Last, the special master did not abuse his discretion in refusing reconsideration even if equitable tolling might have excused the Greenbergs’ untimely petition. The equitable-tolling ruling made no difference to the outcome here, because the special master independently rejected the Greenbergs’ claim on the merits, finding that the Greenbergs had failed to show that J.G. suffered a table encephalopathy. Having already concluded that the special master need not have reconsidered his table- encephalopathy determination, we do not disturb the resolution of the Greenbergs’ equitable-tolling argument. CONCLUSION For the foregoing reasons, the judgment of the Court of Federal Claims is affirmed. AFFIRMED	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION JAN 03 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT TYRONE WALLACE, No. 11-55872 Plaintiff - Appellant, D.C. No. 2:09-cv-05075-VAP- AGR v. RICHARD TULL, Correctional Officer, MEMORANDUM * Defendant - Appellee. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Submitted December 19, 2012 ** Before: GOODWIN, WALLACE, and FISHER, Circuit Judges. California state prisoner Tyrone Wallace appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging excessive force under the Eighth Amendment. We have jurisdiction under 28 U.S.C. §1291. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo. Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Wallace failed to raise a genuine dispute of material fact as to whether the force was not applied in a good faith effort to restore prison discipline. See Whitley v. Albers, 475 U.S. 312, 319 (1986); see also Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003) (speculation as to defendant’s improper motive does not rise to the level of evidence sufficient to state a triable issue of fact). AFFIRMED. 2 11-55872	{ "pile_set_name": "FreeLaw" }
334 F.Supp. 117 (1971) MOBIL OIL CORPORATION, Plaintiff, v. W. R. GRACE & COMPANY and Pontiac Refining Corp., Defendants. Civ. A. No. 67-H-424. United States District Court, S. D. Texas, Houston Division. May 28, 1971. Supplemental Memorandum August 4, 1971. 118 119 George B. Finnegan, Jr., Granville M. Pine and John A. Diaz, Morgan, Finnegan, Durham & Pine, Sanford M. Litvack, Donovan, Leisure, Newton & Irvine, New York City, Ben G. Sewell, Sewell, Junell & Riggs, Houston, Tex., for plaintiff. William K. Kerr and Herbert F. Schwartz, Fish & Neave, New York City, Palmer Hutcheson, Jr., Hutcheson, Taliaferro & Grundy, Houston, Tex., for defendants. MEMORANDUM AND ORDER NOEL, District Judge. Plaintiff, MOBIL OIL CORPORATION (hereafter Mobil) sued defendant, W. R. GRACE AND CO. (hereafter Grace) and defendant, PONTIAC REFINING CORP., (hereafter Pontiac) now a division of CHAMPLIN PETROLEUM COMPANY (hereafter Champlin) for infringement upon its product and process patent claims. Pontiac and Champlin have moved the Court to sever the action against them from the one brought against Grace and thereafter to stay the proceedings as to them. They predicate their request upon the dual assertion that they are only secondarily involved in the litigation and that the entire controversy can be satisfactorily resolved by a judgment in the Mobil-Grace controversy. Grace has moved the Court pursuant to 28 U.S.C. § 1404(a) to transfer the severed action against it to the United States District Court for the District of Connecticut, New Haven Division. Grace asserts that such transfer would promote "the convenience of parties and witnesses" and be "in the interest of justice." After careful study the Court finds that the interests of justice, as well as the convenience of the parties and witnesses, require that the defendants' motions be granted. Plaintiff instituted this complicated suit with its very large financial consequences to the parties, on May 29, 1967. Since then preparations for trial have proceeded with reasonable diligence but have not been completed. Plaintiff and defendant have noticed depositions yet to be taken, and plaintiff has filed interrogatories directed to defendant. Defendant is awaiting plaintiff's tender of documents which this Court recently ordered it to produce. During the pendency of this cause, Mobil prosecuted a suit against the Filtrol Corporation in the United States District Court for the Central District of California, Mobil Oil Corp. v. Filtrol 120 Corp., Civil Action No. 69-633-F (C.D.Cal. 1/4/71). At issue in that cause was the validity of one or more of the patent claims at issue here. Plaintiff's counsel in that suit represent it here, and Filtrol Corporation's counsel represent Grace, Pontiac and Champlin. Although not admitted by the parties, the Court has observed that while the California litigation was in active engagement the pretrial discovery in this litigation was not so actively pursued. Pretrial discovery did not start in earnest until October, 1970, when, presumably, the California litigation was winding down. On December 14, 1970, to expedite adjudication and the previously expressed wishes of counsel, the Court set the instant case for pretrial conference on March 12, 1971 and trial on April 12, 1971. During the pretrial conference counsel informed the Court of the complicated factual and legal issues involved, and asked the Court to prepare its docket for a protracted trial. In answer to the Court's inquiry, counsel announced that they were then ready for trial. However, this announcement proved to be premature. To insure that the cause would be ready for trial, to aid in the resolution of pending discovery problems, and to discuss with counsel possible reference of the case to a special master by agreement, another pretrial conference was held on March 30, 1971. The request for reference to a special master was predicated upon the Court's announcement that its criminal and civil rights docket would prevent its giving the parties time for a protracted trial commencing April 12, 1971 as previously set. Counsel considered the proposal, and at a pretrial conference held April 2, it appeared to the Court that an agreement between counsel to such reference might be accomplished. Counsel subsequently informed the Court that they were unable to agree, and on April 14, 1971, defendants filed the motions which are the subject of this Memorandum and Order. These motions were noticed for submission on April 26. As the Court had previously announced it would hear counsel on discovery matters on April 26, 1971, the scope of that hearing was enlarged to include oral argument on the instant motions. The Court heard the oral argument of counsel and took the questions under advisement. Thereafter on May 3, 1971, the Court entered an order staying the submission and/or consideration of discovery and pleading motions until it had acted upon the motions to transfer, sever and stay. The basic issues in this suit are predicated upon Grace's manufacture, sale and inducement of its customers to use catalysts containing zeolite in their petroleum cracking processes. Mobil asserts that since June, 1964, Grace has manufactured eight types of infringing catalysts, 41,923,815 pounds of which have been shipped into the territorial jurisdiction of the Court for use in the alleged infringing cracking processes. No evidence was offered reflecting the scope of Grace's nationwide infringing activities. Pontiac-Champlin's involvement stems from their purchase and four-year use of 342,000 pounds of one of the products in its Corpus Christi, Texas petroleum refinery. Expressed in percentage, Pontiac-Champlin purchased less than one per cent of the total poundage shipped into this District. The defendants do not contend that they are not properly joined. Nor do they contend that they were not properly served or that the venue is incorrect. See: 28 U.S.C. § 1404(b); F.R. Civ.P. 4. Instead, defendants argue that the cause should be restructured by severance to enable the primary parties to have trial in a different forum. As presently postured, this cause is not susceptible to transfer to Connecticut because that forum is not one in which Pontiac-Champlin could have been originally sued without their waiving their statutory service and venue rights. See: 28 U.S.C. §§ 1400(b) and 1404(a); Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Foster-Milburn Co. 121 v. Knight, 181 F.2d 949 (2nd Cir. 1950) (per Learned Hand, J.). There is no suggestion by plaintiff, however, that Grace could not have been sued originally in Connecticut, its place of incorporation. This Court is faced first with the threshold questions whether (i) to sever the causes of action against properly joined parties, (ii) to transfer the cause as to the one defendant, and (iii) thereafter stay the cause as to the other. The criteria for determining the three questions involve the same relevant criteria namely the determination by the Court of whether the movants have made a clear showing that the balance of convenience and the interests of justice require the proposed actions. Wyndham Associates v. Bintliff, 398 F.2d 614 (2nd Cir. 1968), cert. denied 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Leesona Corp. v. Cotwool Mfg. Corp., 308 F.2d 895 (4th Cir. 1962); affirming and denying mandamus from; 204 F.Supp. 139 (W.D.S.C.1962); Potter Instrument Co., Inc. v. Control Data Corp., 169 U.S. P.Q. 86-89 (S.D.Ind.1971); Burroughs Corp. v. Newark Electronics Corp., 317 F.Supp. 191 (N.D.Ill.1970); General Tire and Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112, 114 (S.D.N.Y. 1970). This Court has the power to sever the claims against properly joined defendants, Wyndham Associates v. Bintliff, supra; 3 J. W. Moore, Moore's Federal Practice, par. 21.05[2] (1970), and to stay the proceedings as to one of them in appropriate circumstances. Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); 1 J. W. Moore, supra, par. 0.204 (1970). Mobil cites the cases of Hoffman v. Blaski, supra, Lemelson v. Sears Roebuck and Co., 292 F.Supp. 170 (D.Conn. 1968); and Silver v. Goodman, 234 F. Supp. 415 (D.Conn.1964) for the two-pronged proposition (i) that this Court does not have the power to restructure the parties in this lawsuit to accomplish transfer, and (ii) that even if such power exists, it should not be so exercised because the District Court in the transferee forum would not do so. To read the cited cases distinguishes them. In none of them was there a discussion of a court's power to transfer a severed cause of action to a forum in which the cause against the transferred defendant could properly have been brought. See for example: Wyndham v. Bintliff, supra, 398 F.2d at 618, Leesona Corp. v. Duplan Corp., 317 F.Supp. 290, 299 (D.R.I.1970). In Blaski the Supreme Court was confronted with a situation where the district court transferred a multiple defendant suit to a forum in which one of the transferred defendants could not have been sued without waiving his rights to proper venue and service. In that situation the Court held that the transferor court did not have the power to transfer the cause to the transferee forum because it was not a forum "where it might have been brought." The Connecticut District Court cases can be construed no further. In Silver v. Goodman, supra, Judge Zampano refused to transfer a multiple defendant action from Connecticut to New York because one of the defendants could not have been sued there. Likewise, in Lemelson v. Sears Roebuck and Co., supra, another multiple defendant action in which each of them could not have been sued in New York, Judge Zampano followed Blaski and Goodman in holding that the Court did not have the power to transfer the cause to New York. There have been numerous federal decisions since Blaski which have authorized a federal district court to sever the claims of several defendants to create a new cause of action susceptible to § 1404 (a) transfer. Wyndham Associates v. Bintliff, supra; Leesona Corp. v. Cotwool Mfg. Co., supra; Potter Instrument Co., Inc. v. Control Data Corp., supra; Burroughs Corp. v. Newark Electronics Corp., supra. In these cases the transferred defendant could originally have 122 been sued in the transferee forum without his consent to service or venue. Id. This procedure is eminently reasonable. Absent this power a federal court would be unable to curtail the powers of a plaintiff to thwart justice by his joinder of a peripherally connected defendant to an action for the sole purpose of accentuating the burdens of trial upon a defendant who otherwise would have been entitled to a § 1404(a) transfer. Wyndham Associates v. Bintliff, supra; Burroughs Corp. v. Newark Electronics Corp., supra. In light of these decisions, the factual similarity of the instant cause to them, as well as the factual discrepancies between it and those relied upon by plaintiff, this Court concludes that it has the power to grant the defendants' motions. Furthermore, inasmuch as the questions posed here have not been litigated in the transferee forum, this Court is of the opinion that a transfer of the severed action between Mobil and Grace would be construed by the recipient Judge as a warranted exercise of permissible discretion. Before the severance of properly joined parties is permissible, this Court must make three basic determinations, as follows: First, it must determine the degree of involvement each defendant has in the transactions which form the basis of plaintiff's cause of action. The Courts which have allowed severance have determined that the severed but not transferred defendant was only secondarily or peripherally involved in the litigation. See for example: Potter Instrument Co., Inc. v. Control Data Corp., supra; Burroughs Corp. v. Newark Electronics Corp., supra; cf.: Wyndham Associates v. Bintliff, supra; Leesona Corp. v. Cotwool Mfg. Co., supra. In Potter Instrument Co. and Burroughs Corp., the courts found that the customers of a manufacturer who had sold them allegedly infringing products were only secondarily involved. In each case the charges against the customer stemmed completely from its purchase and dealings with the infringing product. In each it was clear that the charges against the customer could be resolved completely in an adjudication between the plaintiff and the manufacturer. In Potter Instrument Co. the court pointed out that the manufacturer had indemnified its customer for potential infringement liability and was conducting its customer's defense. While in Burroughs Corp. the court noted the de minimis percentage of the allegedly infringing product which the customer had purchased did not necessitate its remaining joined to the manufacturer and thereby thwart an otherwise appropriate transfer. Second, this Court must determine if the absence of the secondarily involved defendant from the transferee forum would work an unwarranted inconvenience upon the transferee court or the parties in that forum. This principle was a factor in Leesona Corp. v. Cotwool Mfg. Co., supra; and underlay the decisions in Potter Instrument Co., Inc. v. Control Data Corp., supra; and Burroughs Corp. v. Newark Electronics Corp., supra.[1] Severance would be inappropriate if it would merely lead to piecemeal litigation in separate forums. Impermissible inconvenience, however, does not exist in a case in which the adjudication of the claims leveled against a severed and transferred defendant would include the adjudication of the issues which form the basis of the charges made against the non-transferred defendant. This is especially true where both defendants have potential joint liability, and the transferred defendant can be expected to be able to bear the burden of satisfying 123 a judgment rendered in the transferee forum. In a case where these factors exist it is reasonable to believe that the plaintiff would not have to undergo the inconvenience and expense of prosecuting two cases in different forums to achieve the relief which he originally sought in the transferor forum. This is the inconvenience which courts must guard against. In essence, the severance and transfer of the claims against a primary defendant is appropriate when it is apparent that the plaintiff will be able to obtain the substance of the relief he seeks in the transferor forum. Id. Third, this Court must balance the factors implicit in its determination of a § 1404(a) motion to determine if the severing out and transfer of the cause against the primary defendant would promote the convenience of the transferred parties and their witnesses, and be in the interests of justice. See for example: Wyndham Associates v. Bintliff, supra; Leesona Corp. v. Cotwool Mfg. Co., supra; Potter Instrument Co., Inc. v. Control Data Corp., supra; and Burroughs Corp. v. Newark Electronics Corp., supra. Before this Court can grant a motion to stay the proceedings as to the cause of action against a secondarily involved defendant, it must determine that the interests of justice require it. Implicit in this broad determination are the subsidiary determinations that it would be a waste of judicial effort to adjudicate the claim, and the determination that plaintiff would not be substantially harmed by the postponement of this cause of action. See: Landis v. North America Co., supra; Potter Instrument Co., Inc. v. Control Data Corp., supra; Burroughs Corp. v. Newark Electronics Corp, supra; cf: Lemelson v. Sears Roebuck and Co., supra. After an examination of the affidavits and their attached exhibits, it is clear that the first and second requirement for the severance and transfer of the Mobil cause of action against Grace have been met, and that the requirements for staying its action against Pontiac-Champlin have been fulfilled. Therefore, if the third criterion for severance and transfer is fulfilled, the action against Grace will be transferred. Pontiac-Champlin's secondary involvement in the instant case is clear. It is not contested that their defense is being conducted by Grace's defense counsel pursuant to an indemnity agreement between them. In essence the infringement claims against Pontiac-Champlin stem from Pontiac's purchase and use of a minute percentage of one of the eight allegedly infringing products manufactured and sold by Grace. The product involved is allegedly covered by claims emanating from only one of the three patents in suit. Being essentially a customer whose sole transgression is the purchase and use of a small percentage of an infringing product, Pontiac-Champlin can be and should be classified as a secondary or peripheral defendant.[2] There is no doubt that Mobil can adjudicate the merits of its contentions in 124 an action against Grace without Pontiac-Champlin. Pontiac-Champlin's activities as a purchaser constitute secondary patent infringement and its use of the product make it potentially liable as a primary infringer. Nevertheless, Grace is potentially liable for the same activities selling the catalysts and inducing Pontiac-Champlin's use of the process. See: Mobil's Supplemental Complaint ¶¶ 9 and 10; 35 U.S.C. §§ 271(a) and (b). Therefore, the essence of Mobil's claims against Pontiac-Champlin can be adjudicated in the Connecticut forum without delaying Mobil's opportunity to litigate the contentions underlying its claims against Pontiac-Champlin.[3] Likewise, trial there would not hamper Mobil's efforts to collect damages for the harm, if any, which Pontiac-Champlin caused it as this would be determined in the adjudication of the claims against Grace. Furthermore, it is obvious that a present adjudication of the claim left upon this docket would unnecessarily waste the time of this Court and the parties in duplicative litigation. In determining if the instant action between Mobil and Grace should be transferred, the criteria enumerated in 28 U. S.C. § 1404(a) are controlling. Section 1404(a) states: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Federal courts have determined that an application of this statute to a particular case requires a consideration of numerous factors to determine if the movants have made a clear showing that a transfer to a forum not of plaintiff's choosing is appropriate.[4] In patent infringement and related cases the following are some of the factors which have been held to be pertinent in assisting the courts to balance the ultimate factors contained in § 1404(a): 1. The proximity of each party's business headquarters, officers, legal and patent staffs, research facilities, and manufacturing plants to the forums in question. See for example: Leesona Corp. v. Cotwool Mfg. Corp., supra; Potter Instrument Co., Inc. v. Control Data Corp., supra; Burroughs Corp. v. Newark Electronics Corp., supra; Henry I. Siegel Co. v. Koratron Co., 311 F.Supp. 697 (S.D.N.Y.1970); Glenn v. Trans-World Airlines, Inc., 210 F.Supp. 31, 33 (E.D.N.Y.1962). 2. The proximity of each party's documentary and other tangible evidence to the forums in question. Id. 3. The proximity of each party's trial counsel to the forum in question. Sweetheart Plastics, Inc. v. Illinois Tool Works, 267 F.Supp. 938, 943-944 (S.D. N.Y.1967); United States v. Swift and Co., 158 F.Supp. 551, 559 (D.C.D.C. 1958); cf.: Saraf v Chatham Carpet Mills, Inc., 275 F.Supp. 951 (S.D.N.Y. 1967).[5] 125 4. The proximity of each party's witnesses, including employees, experts and patentees, to the forums in question. See for example: Leesona Corp. v. Cotwool Mfg. Co., supra; Potter Instruments Co., Inc. v. Control Data Corp., supra; Burroughs Corp. v. Newark Electronics Corp., supra.[6] 5. The possibilities of trial delay and the seriousness of the resulting prejudices arising from it if the transfer were granted. See for example: Burroughs Corp. v. Newark Electronics Corp., supra, 317 F.Supp. 192; Leesona Corp. v. Duplan Corp., 317 F.Supp. 290, 302 (D.R.I. 1970); Blue Bell, Inc. v. Jaymar-Ruby, Inc., supra, 311 F.Supp. 943-944. 6. The possibilities of judicial economy being achieved by transferring the cause to a forum in which the same or a similar cause is pending. See for example: Wyndham Associates v. Bintliff, supra; Leesona Corp. v. Cotwool Mfg. Corp., supra. 7. The determination of which forum would promote a more efficient adjudication by enabling the parties to use process to acquire the testimony of unwilling witnesses, and in which the possibilities of receiving live rather than deposed testimony would be greater. See for example: Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 511, 67 S.Ct. 839; Wyndham Associates v. Bintliff, supra; Henry I. Seigel Co. v. Koratron Co., supra; Blue Bell, Inc. v. Jaymar-Ruby, Inc., supra.[7] 8. The proximity of each forum to facilities in which a judicial view could be taken if needed. See for example: Glenn v. Trans-World Airlines, Inc., supra. Plaintiff argues that this litigation has progressed too far in this forum for defendant to make the motion. Its argument is not in and of itself a factor preventing transfer. See for example: Sypert v. Miner, 266 F.2d 196 (7th Cir. 1959); General. State Authority (of Pa.) v. Aetna Cas. & Sur. Co., 314 F. Supp. 422, 424 (S.D.N.Y.1970); Blue Bell, Inc. v. Jaymar-Ruby, Inc., supra, 311 F.Supp. 943-944; Bowers v. A. H. Bull and Co., 144 F.Supp. 646 (S.D.N.Y. 126 1956); 1 J. W. Moore, supra, par. 0.145 [4-3] (2nd ed. 1964). Instead, the prejudice caused by the timing of a motion is only one factor to be balanced by the Court in its consideration of whether justice would be served by a transfer. In several cases courts have expressed their belief that decision of transfer motions is preferable in the later stages of a case. They reason that the trial court can then visualize with more clarity the factors implicit in its determinations. A. C. Nielsen v. Hoffman, 270 F. 2d 693, 696 (7th Cir. 1959) (denying mandamus); Sypert v. Miner, supra. The cases plaintiff cites are not persuasive. La Chemise La Coste v. Allegator Co., 313 F.Supp. 915, 168 U.S.P.Q. 458 (D.Del.1970); Devex Corp. v. General Motors Corp., 263 F.Supp. 17 (D. Del.1967); Roller Bearing Co. of America v. Bearings, Inc., supra; Coffill v. Atlantic Coastline R. R. Co., 180 F.Supp. 105, 107-108 (E.D.N.Y.1960). Instead, they are consistent with the Court's views of the law. In all but one, material prejudice was found by the court to have been caused by the belated motion. In the other, by way of dictum, the court complained of its burden in having to educate itself in some facets of a partially litigated case which was then transferred to it. The court's real concern was the waste of judicial economy. Devex Corp. v. General Motors Corp., supra. The instant case is obviously distinguishable. No issues, save those connected with discovery and this motion, have been litigated, and the cause is neither ready for trial nor even a meaningful pretrial. Judicial economy would not be wasted by the transfer. Plaintiff then argues that if the motions are found to be timely an additional factor to be considered by this Court before transfer is the location of this district within an area where there are a great number of catalytic cracking facilities. It does not relate, however, how this enables the parties to expedite the presentation of proof, or would otherwise facilitate the interests of justice. This factor is therefore irrelevant. Applying the relevant factors enumerated above to the instant case, it becomes clear that the third test for severance and transfer has been fulfilled. An examination of the affidavits and arguments of counsel disclose that trial in New Haven, Connecticut, would greatly reduce the parties' burdens of producing evidence for trial. Plaintiff is a New York corporation with its principal place of business, headquarters officers, legal department and patent department in New York City, New York. Its lead and trial counsel, George B. Finnegan, Jr., Granville M. Pine and John A. Diaz of Morgan, Finnegan, Durham & Pine, and Sanford M. Litvack of Donovan, Leisure, Newton & Irvine are located in New York City. Grace is a Connecticut corporation which, like plaintiff, has its principal place of business, headquarters officers, patent department and legal department in New York City. The headquarters officers of Grace's Davidson Division, the division charged with the responsibility of developing, manufacturing and marketing the allegedly infringing catalysts, are also in New York City. Its lead and trial counsel, William K. Kerr and Herbert F. Schwartz, of Fish and Neave, are located in New York City. Based on the mileage chart which appears on page 25 of "Texaco Travel Atlas by Rand McNally" (1971), it appears that New York, New York is approximately 80 miles from New Haven, Connecticut, and 1650 miles from Houston, Texas. (The mileage to be enumerated herein comes from said mileage chart and is approximate.) The catalyst research center where Mobil developed the patents in litigation is in Paulsboro, New Jersey. Also located in Paulsboro is the plant where Mobil manufactures its catalysts. Paulsboro, New Jersey, is 180 miles from New Haven, Connecticut and 1550 miles from this forum. The Grace Davidson Division's main offices are located in Baltimore, Maryland. Its research facilities are located in Clarksville, Maryland, a city close to Baltimore. Baltimore is 270 miles from 127 New Haven, Connecticut and 1450 miles from Houston. The manufacturing facilities where the Davidson Division manufactures its allegedly infringing catalysts are located in Baltimore, Maryland; Cincinnati, Ohio (703 miles from New Haven, Connecticut and 1115 miles from Houston, Texas); and Lake Charles, Louisiana (1490 miles from New Haven, Connecticut and 175 miles from Houston, Texas). Neither party has submitted affidavits locating the records and other tangible evidence relevant to the case. It is reasonable to believe, however, that they are located in the offices of the parties' respective counsel, or in their corporate headquarters or research centers. It seems unlikely that copies of relevant manufacturing records would not be duplicated and kept in the parties' headquarters or research centers. Excluding the mileage from the manufacturing plants to the forums in question, it appears that a New Haven, Connecticut trial would reduce the round trip mileage by 8200 miles. If the distance from the manufacturing plants is included, there is still a savings of 6454 round trip miles.[8] An examination of the proposed witness lists compiled by each party in preparation for the submission of a pretrial order discloses that the witnesses and the parties would be convenienced by a trial in New Haven. (These lists were exhibits A and B to the affidavit of William K. Kerr, submitted in support of defendant's motion. The lists were not controverted.) The lists disclose that none of the proposed witnesses reside in the Southern District of Texas and that only two of the 31 witnesses reside in the Fifth Judicial Circuit. Two others reside at points of basic inconvenience to either forum, one living in Chicago, Illinois and the other in Cincinnati, Ohio. The remaining 27 reside in close proximity of the New Haven, Connecticut forum. Twenty-five live near the parties' headquarters, research or manufacturing facilities already noted in New York, New Jersey or Maryland. The remaining two reside in Saddle River, New Jersey, and Perkasie, Pennsylvania.[9] The mileage 128 savings which would result from a trial in New Haven, Connecticut, is one of approximately 66,390 round trip miles. There is no showing made that trial delay would result from transfer. The affidavits submitted by each party are conflicting, and in this regard unpersuasive. The only basically uncontroverted evidence is a portion of a report prepared by the Administrative Office of the United States Courts, which was submitted by defendant as Exhibit D to the affidavit of William K. Kerr. The portion submitted is Table 10C which statistically sets out the number of jury and non-jury trials held in each federal district court during the 1970 fiscal year ending June 30, 1970. It enumerates the average time to trial after issue was joined. It shows that there were 82 trials held in Connecticut during this period and that 80% of the non-jury ones were reached within one month after issue was joined. By contrast, in this district there were 157 trials and the average non-jury case was not reached until 12 months after issue was joined. The Court realizes that docket conditions change constantly. There is nothing on this record, however, to indicate the extent of change which has occurred. As discovery is not complete, it appears that any prediction of faster trial setting in either forum would be based on conjecture. With the case in this posture it is obvious that the interest of justice would not be affected by a transfer. Cf.: Jahncke Service Inc. v. OKC Corp., 301 F.Supp. 886, 869 (D. Del.1969).[10] At this time problems of witness availability and/or the need for adverse witnesses are not clear. If these problems should arise, however, the transferee forum's advantageous proximity to the location of the announced witnesses and other sources of evidence strongly suggests that it would be the more appropriate forum in which the resolution of these problems could be accomplished. If a judicial view of a petroleum cracking catalyst research center or refinery should become necessary, it would be less of a burden to transport the New Haven Court and its staff to one of those which this Court judicially notices are located in the Philadelphia-New Jersey-New York City area, than it would be to require the parties and witnesses to bear the economic and intrinsic cost of litigation in this forum. In sum, the evidence of record demonstrates that the convenience of parties and witnesses and the interests of justice dictate the severance and transfer of the controversy between Mobil and Grace. It is therefore ordered that (1) the cause of action against Grace and Pontiac-Champlin be severed; (2) the resulting cause of action against Pontiac-Champlin be stayed on the docket pending the prompt prosecution of the other claim; and (3) the resulting cause of action between Mobil and Grace be transferred to the New Haven Division of the United States District Court for the District of Connecticut within ten days. The Clerk shall furnish a copy of this Memorandum and Order to each counsel of record. Counsel for Grace will promptly prepare and submit an appropriate order to counsel for Mobil for approval as to form and then to the Court for signature. 129 SUPPLEMENTAL MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION A. Background Statement In its Memorandum and Order of May 28, 1971, this Court granted several motions previously filed by the defendants. Mobil Oil Corp. v. W. R. Grace & Co. and Pontiac Refining Co., (Civil Action No. 67-H-424) (S.D.Texas, May 28, 1971). The Memorandum and Order accomplished the following: 1. Severed the causes of action filed against the defendants creating two new causes of action; 2. Stayed the resulting cause of action between Mobil and Pontiac-Champlin; and 3. Transferred to the Federal District Court sitting in New Haven, Connecticut the resulting and remaining cause of action between plaintiff and W. R. Grace & Co. Thereafter, at the behest of Mobil the Court stayed the execution of its order for ten days from June 7, 1971, in order to allow Mobil an opportunity to file a motion for reconsideration. On June 17, 1971 Mobil submitted its motion which included a request that in the event the Court should vacate its order, certain issues be certified to the Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 1292(b). Accompanying the motion were a brief and several affidavits. On June 23, 1971 the defendants filed an affidavit and a brief in opposition. On June 25, 1971, in order to clarify certain matters raised in the parties' papers, the Court held a hearing which was attended by local counsel for each of the parties. On June 30, 1971 Mobil filed a clarification of its position on several of the issues it had previously raised by the submission of a supplemental brief and affidavit. Mobil is now raising two new contentions and reurging several others. In summary, Mobil asserts that: (1) the defendants' motions were time-barred because the case had been pending since May 29, 1967 and the parties' trial preparations were nearing completion; (2) the defendants were barred from maintaining their motion because of statements they made in accompanying pleadings; (3) the Court considered irrelevant evidence in making its decision; (4) the severance and stay of the Mobil v. Pontiac-Champlin cause would more greatly prejudice the plaintiff than the Court initially realized; and (5) a recent United States Supreme Court decision required this Court to give the plaintiff's choice of venue greater significance. B. Background of Motion for Reconsideration On May 29, 1967 Mobil instituted this patent infringement action. Thereafter, the parties proceeded with voluminous discovery and pleading modifications, the bulk of the discovery to date having been accomplished in the latter part of 1970 but continuing to and being unfinished at this time. In the winter of 1970 the Court set the cause for pretrial on March 12, 1971 and trial on April 12, 1971. At pretrial, counsel announced that they would be ready for trial but noted that they had come to loggerheads and would need the Court's aid in resolving some discovery questions. Because of the Court's then-existing docket condition, local counsel for the parties were asked to confer with the Court in chambers on March 30, 1971. At that time additional unresolved discovery matters were pending. Counsel were told that the April 12, 1971 trial setting would have to be cancelled and the trial postponed. The reasons were reviewed with counsel. The Court suggested that the parties consider the feasibility of the Court appointing one of the local Federal Magistrates to act as special master to hear the matter pursuant to Rule 53, Fed.R.Civ.P. The local counsel advised the Court they would inform their respective New York trial counsel of the Court's suggestion. On April 2, 1971 the Court met with all counsel in chambers. At that time 130 the Court repeated in substance what was told local counsel on March 30. Counsel then indicated no objection to the appointment of a master as such but did say that the appointment of one of the Magistrates as a master was unacceptable. Counsel expressed willingness to attempt to agree upon one or more attorneys who would be acceptable to their clients for appointment, and to submit same to the Court within two weeks. At no time during either the March 30, 1971 or the April 2, 1971 conferences did the Court infer to counsel that it would never be able to try the case. A later trial setting by the Court was not discussed. The sense of the meeting was that a master could probably be agreed upon and that the original trial setting before a masteror a short postponement thereof, would be feasible. At that time no objection had been voiced by either party to the appointment of a master, acceptable to both parties as well as to the Court. The case then took an unexpected turn. On April 14, 1971 and before the expiration of the two week period, defendants filed the instant motions to transfer and noticed them for submission on April 26, 1971. In their submission papers defense counsel used language which the Court construed to be in deference, especially in view of the fact defendants were obviously abandoning efforts to agree upon a master. Thereafter, as the Court had previously announced it would hear counsel on April 26, 1971 concerning pending discovery matters, the scope of that hearing was enlarged to include oral argument on the defendants' motions to transfer. At no time during oral argument did defendants indicate that they desired or intended to abandon their motions to transfer or the relief requested therein. The Court took the motions under advisement and entered its order thereon May 28, 1971. C. Mobil's Contentions 1. Mobil's first assertion in its present motion was discussed in some depth by the Court in its prior memorandum and order at pages 15-16. There the Court pointed out that the time when a party makes a motion for transfer under § 1404(a), 28 U.S.C. § 1404(a) (1948) as amended (1962), "is not in and of itself a factor preventing transfer." The Court then pointed out that "the prejudice caused by the timing of a motion is only one factor to be balanced by the Court in its consideration of whether justice would be served by a transfer." See for example: General Tire & Rubber Co. v. Watkins, 373 F.2d 361 (4th Cir. 1967) (en banc), certiorari denied Firestone Tire and Rubber Co. v. General Tire & Rubber Co., 386 U.S. 960, 87 S. Ct. 1031, 18 L.Ed.2d 109 (1967); Sypert v. Miner, 266 F.2d 196 (7th Cir. 1959); General State Authority (of Pa.) v. Aetna Cas. & Sur. Co., 314 F.Supp. 422, 424 (S.D.N.Y.1970); Blue Bell v. Jaymar-Ruby, Inc., 311 F.Supp. 942, 943-944 (S. D.N.Y.1969); Sypert v. Bendix Aviation Corp., 172 F.Supp. 480 (N.D.Ill. 1948) mandamus denied sub nom. Sypert v. Miner, 266 F.2d 196 (7th Cir. 1959), cert. den. 361 U.S. 832, 80 S.Ct. 82, 4 L.Ed.2d 74 (1959); Bowers v. A. H. Bull & Co., 144 F.Supp. 646 (S.D. N.Y.1956); Molloy v. Bemis Bros. Bag Co., 130 F.Supp. 265 (S.D.N.Y.1955). United States v. Swift & Co., 158 F.Supp. 551 (E.D.N.Y.1958). In United States v. Swift & Co., supra, a transfer was approved 35 years after judgment had been entered for the purpose of adjudicating the scope of the Court's prior order. In Sypert v. Bendix Aviation Corp., supra, the case was awaiting retrial because the jury had been unable to reach a verdict when the transfer was approved. General Tire & Rubber Co. v. Watkins, supra, had already been partially litigated when the Court of Appeals for the Fourth Circuit granted the appellant's request for a mandamus and transferred the cause to a more expeditious forum. In another exemplary case the defendant's motion for transfer was granted although discovery was almost completed and the cause was set upon the court's trial-ready docket. Bowers v. A. H. Bull & Co., supra. Molloy v. Bemis Bros. Bag 131 Co., supra, is similar to the Bowers decision. There the transfer was granted even though the cause had been pending on the transferor court's docket for three years and the pretrial discovery was almost completed. In several cases it has been pointed out that the decision of transfer motions is preferable in the later stages of a cause's development. This is true because the transferor court is then better qualified to visualize the factors implicit in its determination. A. C. Nielsen v. Hoffman, 270 F.2d 693, 696 (7th Cir. 1959); Sypert v. Miner, supra; Webster-Chicago Corp. v. Minneapolis-Honeywell Reg. Co., 99 F.Supp. 503 (D.Del. 1951). As was pointed out by this Court in its earlier memorandum and order at pp. 10-12, 16, 20, n. 10, any prejudice which the plaintiff might suffer as a result of defendant's motion is insufficient to counteract the overwhelming convenience to the parties and witnesses which would be achieved by the transfer. See pp. 16-21 of the May 28, 1971 memorandum and order. Assessed in their entirety, Mobil's actions in this cause create a strong suggestion of forum shopping. If such should be the case, it is worthy of note that forum shopping is not looked upon with favor by the federal courts. Clayton v. Warlick, 232 F.2d 699, 706 (4th Cir. 1956); Chicago R. I. and P. Ry Co. v. Igoe, 212 F.2d 378, 382 (7th Cir. 1954); Polaroid Corp. v. Casselman, 213 F.Supp. 379, 384 (S.D.N.Y.1962); De Luxe Game Corp. v. Wonder Products Co., 166 F.Supp. 56, 58 (S.D.N.Y.1958); Rayco Mfg. Co. v. Chicopee Mfg. Co., 148 F.Supp. 588, 592-594 (S.D.N.Y. 1957); Paragon-Revolute Corporation v. C. F. Pease Company, 120 F.Supp. 488, 491 (D.Del.1954); cf.: William Gluckin & Company v. International Playtex Corporation, 407 F.2d 177 (2nd Cir. 1969). 2. Mobil's second assertion is incorrect. At oral argument, in their briefs, and in their affidavits defendants have vigorously urged that the convenience of the parties and the witnesses, as well as the interests of justice, dictate that the cause be transferred. Examined in this light the language in defendant's pleadings which Mobil asserts to be a waiver is no more than language displaying defendants' courtesy to this Court. Until a motion is withdrawn this Court is duty bound to apply the law to the facts presented to it and to render a decision, as has been done. 3. Mobil's attack on the evidence which this Court considered is misplaced. If plaintiff had proceeded to read the next two paragraphs on page 20 of the May 28, 1971 memorandum and order, it would have seen that the Court acknowledged the inaccuracy of applying the questioned evidence, and thereafter concluded that no evidence had been presented from which the Court might determine whether the parties could receive a faster trial in the transferee forum. 4. Mobil's fourth contention concerning additional prejudice to it from the severance and stay of its claims against Pontiac-Champlin plows no new ground and is rejected. See pages 8-12 and 20, n. 10 of the Court's May 28, 1971 memorandum and order; see also: Amperex Electronic Corp. v. Perry, 168 U.S.P.Q. 615 (7th Cir. 1970); Gellman v. L. Karp & Sons, 109 F.2d 391 (7th Cir. 1940); Ransburg Electro-Coating Corp. v. Williams, 246 F.Supp. 626 (W.D.Ark.1965). 5. Mobil's last assertion is rejected. The United States Supreme Court in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) did not increase the significance of the plaintiff's choice of forum in patent cases. The case is inapposite and clearly distinguishable. D. Mobil's Alternative Request for § 1292(b) Certification to the Court of Appeals As the Court has found its previous decision on the merits of the defendants' motions to have been correct, the plaintiff's alternative request for a § 1292(b) certificate recommending interlocutory appeal must be decided. 28 132 U.S.C. § 1292(b). If this were a case similar to that before this Court in E. F. Hutton & Co. v. Brown, 305 F.Supp. 371, 401-403 (S.D.Tex.1969), Mobil's request would probably have been granted. But the cause at bar is not. Once the facts are developed, all that remains is plaintiff's disagreement with this Court's application of settled legal principles to the facts of the case. Such a discretionary ruling is not within the limited class of cases set out in 28 U.S.C. § 1292(b) for certification. See: Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970) (and cases cited therein);[1],[2]see also: 1 Barron and Holtzoff, Federal Practice and Procedure, § 86.7 (C. Wright ed. 1960). Accordingly, for the reasons stated herein, it is ordered that the plaintiff's motion for reconsideration is in all things denied. The Clerk shall file this writing and thereupon transmit this cause to the United States District Court sitting in New Haven, Connecticut. The Clerk shall send copies to all counsel. NOTES [1] From its decision in Wyndham Associates v. Bintliff, supra, it is evident that the Court of Appeals for the Second Judicial Circuit would not consider this a separate issue, but, instead, considers it to be one of the numerous criteria to be considered within the third test. It is treated here with higher dignity in the interest of thoroughness. [2] Plaintiff's attempts to inflate Pontiac-Champlin's involvement by (1) asserting it was a primary infringer and therefore incapable of being a secondary defendant; and (2) pointing out the number of pounds of the infringing product which it purchased, are without merit. In Leesona Corp. v. Cotwool Mfg. Co., supra, the Appellate Court ignored appellant's arguments about a customer being a primary infringer of a product and allowed the transfer of the claims against the primary defendant to be severed and transferred. This result is eminently correct. The labeling of the activities of a customer as secondary or primary constitutes no more than a semantic ploy which cannot by itself otherwise increase a customer's involvement in the overall patent infringement of the supplier and manufacturer. Mobil's reference to the poundage purchased by Pontiac-Champlin is meaningless. What is important is the realization that Pontiac-Champlin purchased less than one percent of the poundage which Grace shipped into this judicial district alone. There is no indication how many pounds of these products were sold from 1964 to date elsewhere in the nation or world. [3] As Connecticut is Grace's place of incorporation and place of residence for the purposes of 28 U.S.C. § 1400(b), Mobil will be able to offer proof of every alleged act of infringement Grace has committed as a primary or secondary infringer. [4] Plaintiff argues that the court's discretion in applying the statute is very limited because the transfer ousts it from its chosen forum. It relies upon Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) for this. Gulf Oil predates the 1948 venue statute. The statute has been construed as increasing the trial court's discretion in ruling upon transfer motions and as decreasing the importance of the plaintiff's choice of forum. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955); Garner v. Wolfinbarger, 433 F.2d 117, 119 (5th Cir. 1970); Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); In re Alamo Chemical Transportation Co., 323 F.Supp. 789 (S.D.Tex.1970) (per Noel, J.). If the factors considered were closely parallel as they were in In re Alamo Chemical Transportation Co., supra, this Court would, as it did there, deny a motion to transfer. Cf: Blue Bell Inc. v. Jaymar-Ruby, Inc., 311 F.Supp. 942 (S. D.N.Y.1969). [5] Plaintiff contends that the convenience of counsel is not relevant. This Court disagrees. The cost of counsel's transportation and time in route must be borne by the parties. Therefore this factor directly bears upon the convenience of the parties and costs of litigation. Id. [6] Plaintiff contends that the convenience of experts and employees is immaterial, as they are paid for their trouble. It cites Everprest, Inc. v. Phillips-Van Heusen Corp., 300 F.Supp. 757 (M.D.Ala.1969); and Roller Bearing Co. of America v. Bearings, Inc., 260 F.Supp. 639 (E.D. Pa.1966) for this. Everprest, Inc. does not help. It does not discount the parties' inconvenience in transporting and diverting employees from their duties, nor the cost of transporting experts to a more distant forum. Instead it seems to eliminate the individual discomfort of the employee, or expert, from the category of witnesses. To the extent this opinion or the other disallows a party's inconvenience in exporting its employees and experts to a more distant forum to be considered, the Court declines to follow it for the reasons stated in footnote 5 above. See for example: Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., supra, 267 F.Supp. at 943-944; United States v. Swift and Co., supra; Clayton v. Swift and Co., 137 F.Supp. 219 (W.D.N.C. 1956), mandamus denied in Clayton v. Warlick, 232 F.2d 699 (4th Cir. 1956); cf.: Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 511, 67 S.Ct. 839. In passing, the Court would point out its belief that apparently affluent parties are as entitled to the monetary savings to be gained by trial and pretrial in a closer forum as are less affluent litigants. Id. [7] Plaintiff contends that in patent cases deposition testimony is sufficient. Everprest, Inc. v. Phillips-Van Heusen Corp., supra. This Court would qualify and say only minimally sufficient. In technical cases a court often lacks particular expertise. Therefore, the exposure of experts to the court's questioning can often enable the court to grasp critical issues. Plaintiff contends that because defendant has not asserted its inability to call adverse witnesses, the unavailability of process is irrelevant. This is without merit. Parties are not called upon to disclose the identity of rebuttal witnesses before trial. Therefore, the increased possibility for the use of process to insure their attendance is of importance in assuring a just adjudication. [8] The savings figures were computed by adding the travel figures from each city discussed. The distances to New Haven, Connecticut, were computed in one column and those to Houston, Texas, in another. The difference between these figures doubled equaled the amount of savings. [9] Plaintiff is going to call 21 witnesses (one to be announced) including the patentees. The proximity of the residences of the witnesses to each forum is reflected by the following chart: Miles to Miles to Witnesses and residences New Haven Houston 8 live in or near New York City 80 1640 8 live in Paulsboro, N.J. 180 1550 1 lives in Saddle River, N.J. 115 1615 1 lives in Perkasie, Pa. 170 1648 1 lives in Chicago, Illinois 895 1113 1 lives in Dallas, Texas 1729 242 Defendant indicated it would call 14 witnesses (one to be announced). The proximity of the residences of defendant's witnesses to each forum is shown as follows: Miles to Miles to Witnesses and residences New Haven Houston 5 live in or near Baltimore, Md. 270 1450 1 lives in or near New York City 80 1640 1 lives in Princeton, N.J. 115 1605 1 lives in Cincinnati, Ohio 703 1115 1 lives in Lake Charles, La. 1409 175 * Five of these are Mobil employees, four of whom plaintiff listed as "tentative" witnesses. Therefore the mileage information pertinent to them was included in plaintiff's chart. The fifth man (Andrew L. Gaboriault, of New York City) is listed in defendant's chart. [10] Plaintiff argues that the prejudices to it which would arise from a delay in trial are the inconveniences caused by (1) delay in receiving damages; and (2) the problems of placating its present patent licensees. This type of inconvenience, if proven, would not be sufficiently prejudicial to sway the balance of justice against transfer where, as here, the factors of convenience weigh so heavily, toward trial in the transferee forum. Burroughs Corp. v. Newark Electronics Corp., supra, 317 F.Supp. 192; Leesona Corp. v. Duplan Corp., supra, 317 F.Supp. 302; Blue Bell, Inc. v. Jaymar-Ruby. Inc., supra, 311 F.Supp. 943-944. [1] In Garner v. Wolfinbarger, supra, the Court of Appeals for the Fifth Judicial Circuit states: We are of the view that § 1292(b) review is inappropriate for challenges to a judge's discretion in granting or denying transfers under § 1404(a). The Congressional policy against piecemeal appeals, as expressed in the final judgment rule, 28 U.S.C. § 1291, to which § 1292 (b) is a narrow exception, is eroded by permitting review of exercise of the judge's discretion under § 1404(a) as a "controlling question of law." Our conclusion is the same as that already reached by the Second, Third, and Sixth Circuits,4 and by the text writers.5 The temptation is great when an interlocutory appeal is properly taken from one order, and the record is before us, and the parties themselves may desire a declaration on the validity of another interlocutory order not independently appealable under § 1292(b), to consider everything on a sort of ad hoc pendent jurisdiction basis. Apparently this is what happened in Time, Inc. v. Manning [366 F.2d 690 (5th Cir.)]. A similar case is Koehring Co. v. Hyde Construction Co., 324 F.2d 295 (5th Cir. 1963), where appellant appealed from denial of a motion to dismiss on grounds of lack of jurisdiction in Mississippi and of alternative § 1404(a) and § 1406(a)6 motions to transfer to Oklahoma. Without considering the question of availability of review, we held that we need not reach the jurisdiction issue because the case should be transferred to Oklahoma. There are several considerations against piecemeal appeals. It is contrary to the language of § 1292(b), which is in terms of the appealability where "such order involves a controlling question of law." The issue is not one of convenience to the litigants, or even to this court, but of appellate jurisdiction. The ad hoc approach invites the parties to inject a sham issue as the vehicle to bring the case to this court at the interlocutory stage for a declaration on an order not otherwise reviewable. And it confuses the courts and the parties, who assume that because a discretionary transfer order has been reviewed in one case it can be reviewed in any other. (Footnotes omitted). Id., at 120. [2] The cases relied upon by plaintiff in its brief were discussed and either rejected or construed in a light favorable to this Court's instant decision by the Court of Appeals in Garner.	{ "pile_set_name": "FreeLaw" }
U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM S32554 ________________________ UNITED STATES Appellee v. Eric R. PROCTOR Technical Sergeant (E-6), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Decided 4 June 2020 ________________________ Military Judge: Christina M. Jimenez. Approved sentence: Bad-conduct discharge and reduction to E-3. Sen- tence adjudged 24 August 2018 by SpCM convened at Schriever Air Force Base, Colorado. For Appellant: Major David A. Schiavone, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant Colonel Brian C. Mason, USAF; Major Jessica L. Delaney, USAF; Mary Ellen Payne, Esquire. Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges. Judge POSCH delivered the opinion of the court, in which Chief Judge J. JOHNSON and Judge KEY joined. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30.4. ________________________ POSCH, Judge: A special court-martial composed of officer and enlisted members found Ap- pellant guilty, contrary to his pleas, of six specifications of willfully disobeying a lawful command from his squadron commander, one specification of assault United States v. Proctor, No. ACM S32554 consummated by a battery, and one specification of wrongfully communicating a threat, in violation of Articles 90, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 928, 934. 1 Appellant was sentenced to a bad- conduct discharge, hard labor without confinement for three months, and re- duction to the grade of E-3. The convening authority approved the bad-conduct discharge and the reduction in grade, and disapproved the hard labor without confinement. Appellant raises four issues on appeal: (1) whether the military judge erred when she found six no-contact orders to be lawful; (2) whether the military judge erred in denying Appellant’s request for an instruction on self-defense to the assault consummated by a battery offense; (3) whether the military judge’s failure to sua sponte instruct on defense of property as a defense to the assault consummated by a battery offense was plain error; and (4) whether there was evidence of unlawful command influence (UCI) when Appellant’s commander held a commander’s call to address his squadron’s noncommissioned officer (NCO) “problem” just over one year before Appellant’s court-martial. We find no prejudicial error and affirm. I. BACKGROUND Appellant’s convictions are the result of his conduct with Airmen who were assigned with Appellant to the security forces squadron at Schriever Air Force Base, Colorado, to include interactions he had with his girlfriend, Staff Ser- geant (SSgt) CM. Appellant, his three children, and SSgt CM shared an off-base apartment in Colorado Springs, Colorado. On Thanksgiving Day in 2016, SSgt CM invited SSgt AG and junior Airmen assigned to her flight to celebrate the holiday in her home. Appellant returned to the apartment after his shift and drove out the Airmen, angry that guests were in his home. While doing so, Appellant strangled SSgt AG by grabbing his throat with Appellant’s hand after SSgt AG came to the defense of an Airman whose presence Appellant found especially provoking. In a second incident, in December 2016, after SSgt CM and Appel- lant separately returned home from a squadron Christmas party, SSgt CM came towards Appellant with a knife and Appellant responded by drawing a gun before the incident deescalated. 1 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules for Courts-Martial (R.C.M.), and Military Rules of Evidence are to the Manual for Courts-Martial, United States (MCM) (2016 ed.). 2 United States v. Proctor, No. ACM S32554 Appellant’s commander, Lieutenant Colonel (Lt Col) MS, was unaware of Appellant’s conduct on Thanksgiving and after his squadron’s Christmas party when he issued Appellant an order to refrain from having any contact or com- munication with SSgt CM. 2 That first no-contact order was given in February 2017 after Lt Col MS received a report from his NCOs that Appellant had strangled SSgt CM in their apartment and threatened to kill her. In time, Lt Col MS issued an additional six commands in succession, continuing his or- der that Appellant refrain from communicating and having contact with SSgt CM when a preceding order was about to expire. Appellant willfully disobeyed each of the six orders, including during the time that Lt Col MS had ordered Appellant into pretrial confinement, and after Appellant’s release from pretrial confinement over a year before trial. II. DISCUSSION A. Legality of the No-Contact Orders The Government charged Appellant with disobeying the six orders, and grouped the violations under six specifications, one for each order it alleged Appellant disobeyed. At trial, Appellant challenged the six orders claiming they did not serve a valid military purpose and were thus unlawful. The mili- tary judge found the orders were lawful and issued a written ruling denying Appellant’s motion to dismiss the six specifications. 3 Appellant renews his challenge in this appeal. 1. Additional Background In February 2017, SSgt CM contacted her supervisor because she and Ap- pellant were in a physical altercation and she needed help. Her supervisor and first sergeant, both senior NCOs, responded to the shared residence and ob- served Appellant was emotionally distraught. SSgt CM reported Appellant had strangled her and she had scratched Appellant’s face trying to get away. She further stated Appellant had threatened to kill her. Civilian law enforcement personnel were called to respond to the incident, but neither Appellant nor SSgt CM were willing to cooperate with the police. On 21 February 2017, their squadron commander, Lt Col MS, issued no-contact orders to both Appellant 2Lt Col MS issued a reciprocal order and subsequent orders to SSgt CM to refrain from all communication and contact with Appellant. 3Appellant was convicted of violating six orders issued on 22 March 2017, 19 May 2017, 19 June 2017, 1 August 2017, 31 August 2017, and 22 September 2017. 3 United States v. Proctor, No. ACM S32554 and SSgt CM. Appellant’s order expired on 7 March 20174 and was not con- tested at trial or on appeal. After the order expired, on 18 March 2017 local police responded to Appel- lant’s residence in response to an allegation that Appellant had choked or beaten SSgt CM’s nine-week-old puppy after she left for work. Lt Col MS was briefed on the incident by the NCOs and then spoke with SSgt CM. She related the February incident was “not the first time [Appellant] put his hands on [her]” and she “can’t count how many times that [Appellant] choked [her] out until [her] eyes were blood red.” Lt Col MS recalled seeing SSgt CM on duty and observing her eyes were unusually red, which at the time she attributed to a sneeze. 5 On 22 March 2017, Lt Col MS issued a second order to Appellant command- ing him to have no communication or contact with SSgt CM for two months. He based his decision to issue this and subsequent orders on his years of lis- tening to victims of domestic violence, concluding that SSgt CM was caught in a cycle of violence and Appellant would “harm things that are precious to [her]” such as her puppy. Lt Col MS saw a pattern whereby neither NCO was willing to cooperate with civilian police, and the harm done to SSgt CM’s puppy showed an “escalation of the domestic violence” in their relationship “and it’s just going to get worse.” Lt Col MS explained he issued the order for SSgt CM’s protection and for good order and discipline, noting he was aware of “two vio- lent interactions that are happening in [his] unit by two people that are sup- posed to be NCOs leading [his] [A]irmen.” Before the second no-contact order was set to expire on 22 May 2017, Lt Col MS learned Appellant posted a message on Facebook, sometime between 10 and 21 May 2017, that read: What ether should I drop first? Shots Fired or Officer Down? Once them shi[]s drop then I’ll go ahead and drop that joint I got . . . . Had to kick Lee Lee out for flaugin and workin for 12. Appellant’s friend, SSgt JP, who was also a member of the squadron, saw Ap- pellant’s Facebook post and responded, “some mofos only got a few hours left” followed by an image of three skulls. After SSgt JP’s post, Appellant responded indicating he “liked” SSgt JP’s post via Facebook. 4Lt Col MS testified he allowed the order to expire because “there was no police action being taken downtown” or “other incidents of violence,” and he learned from NCOs in the squadron that Appellant and SSgt CM “were working through their situation.” 5 Lt Col MS acknowledged in his testimony that after he met with SSgt CM in regard to the puppy incident he had “seen her come to work with burst capillaries in her eyes.” 4 United States v. Proctor, No. ACM S32554 Lt Col MS did not initially understand Appellant’s Facebook post, but found it unusual that a security forces NCO would post “Shots Fired,” and “Officer Down.” He soon learned “Lee Lee” was the nickname for Mr. LA, a former Air- man and one-time friend of Appellant who was married to an NCO in his squadron. Lt Col MS was aware that Mr. LA, his wife, and several members of the squadron had written statements that were used as evidence in nonjudicial punishment proceedings alleging that Appellant had violated the second no- contact order. 6 Lt Col MS learned “flaugin” was slang for lying or snitching, and “workin for the 12” meant working for the police. Mr. LA’s wife understood “Shots Fired” and “Officer Down” as “referring to [her] husband” who was a civilian member of law enforcement. Mr. LA considered the posts to be a threat directed at him and was concerned to the point that he retrieved and loaded his gun and then stayed up late in the event that Appellant or someone on Appellant’s behalf might act on the threat. Lt Col MS understood the Facebook post as an escalation of threats towards members of his squadron for cooperating and making statements against Ap- pellant. On 19 May 2017, Lt Col MS continued the no-contact order and ex- panded its scope to include additional personnel. 7 Lt Col MS was concerned Appellant “would reach out to intimidate, threat[en] or harass either [SSgt CM] or any of these people if [Lt Col MS] didn’t have a no-contact order in place.” Around the same time he issued the expanded order, he learned of other allegations of violent acts that Appellant had committed against SSgt CM and threats Appellant made against others. This included the allegation of violence on Thanksgiving and that SSgt CM pulled a knife on Appellant and Appellant in turn pulled a gun on her after the squadron’s Christmas party. Lt Col MS had also heard that Appellant had made threats to “go after” members of the squadron who had made statements against Appellant. Lt Col MS continued the series of no-contact orders until Appellant’s legal proceedings concluded. 8 Lt Col MS testified he issued the orders because of the ongoing court-martial proceedings and to protect SSgt CM because “their toxic, 6Before the Facebook post, on 10 May 2017, Lt Col MS offered nonjudicial punishment to Appellant under Article 15, UCMJ, 10 U.S.C. § 815, for allegedly violating the sec- ond no-contact order on divers occasions. Appellant declined nonjudicial punishment and demanded trial by court-martial. 7Lt Col MS expanded the order to include ten named individuals for the preservation of good order and discipline of his unit. 8 Lt Col MS preferred the original charges on 7 June 2017. Although those charges were subsequently withdrawn and dismissed by the convening authority on 1 August 2017, he preferred charges anew on 14 August 2017; an additional charge was pre- ferred on 28 September 2017, and a second additional charge was preferred on 6 No- vember 2017. 5 United States v. Proctor, No. ACM S32554 violent relationship was affecting the good order and discipline in the unit.” Among the considerations in reissuing the orders was that Lt Col MS became aware of a reason SSgt CM gave to co-workers for continuing to violate recip- rocal orders he gave to SSgt CM to refrain from all communication and contact with Appellant. SSgt CM told others she felt that she had no choice but to vio- late Lt Col MS’s orders: “I have to stay with [Appellant]. I have to violate the orders, because my life is more important.” Lt Col MS believed that continuing the reciprocal orders would mitigate the violence in their relationship. Appellant acknowledged receipt and understanding of each order. 2. Law We review de novo the lawfulness of a military order. United States v. New, 55 M.J. 95, 106 (C.A.A.F. 2001) (citation omitted). The critical “attributes of a lawful order include: (1) issuance by competent authority—a person authorized by applicable law to give such an order; (2) communication of words that ex- press a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty.” United States v. Deisher, 61 M.J. 313, 317 (C.A.A.F. 2005) (citations omitted). Orders are presumed to be lawful, and an appellant bears the burden of demonstrating otherwise. New, 55 M.J. at 106 (citation omitted); United States v. Hughley, 46 M.J. 152, 154 (C.A.A.F. 1997) (citations omitted). Thus, “a sub- ordinate disobeys an order at his own peril,” though they may challenge the lawfulness of the order when it is given or in later proceedings. United States v. Kisala, 64 M.J. 50, 52 (C.A.A.F. 2006) (footnotes omitted). Our evaluation of the lawfulness of an order includes consideration of the criteria from the Man- ual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 14.c.(2)(a)(iv), which states as follows: Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to ac- complish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attain- ment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article. 6 United States v. Proctor, No. ACM S32554 To be presumed lawful, an order must also be clear, specific, and narrowly drawn. United States v. Moore, 58 M.J. 466, 468 (C.A.A.F. 2003) (citing United States v. Womack, 29 M.J. 88, 90 (C.M.A. 1989)). 3. Analysis At the outset, we reject Appellant’s assertion at trial that Lt Col MS was without authority to issue the six no-contact orders Appellant was convicted of violating without first obtaining Appellant’s and SSgt CM’s consent. 9 We find no authority for this assertion and Appellant cites none. So long as a com- mander relies on a “valid military purpose” in issuing an unambiguous no-con- tact order that is narrowly drawn, any consequential “interfere[nce] with pri- vate rights or personal affairs” is nonetheless lawful without more. MCM, pt. IV, ¶ 14.c.(2)(a)(iv); see also Moore, 58 M.J. at 467–68. On appeal, Appellant does not contest whether the six orders were issued by a competent authority or if they were sufficiently clear, specific, or narrowly drawn, see Moore, 58 M.J. at 468 (citing Womack, 29 M.J. at 90). Rather, Ap- pellant claims the orders served no valid military purpose because Lt Col MS’s justification for issuing the orders was inadequate. To this end, Appellant gives three bases for challenging lawfulness: (1) the orders appear to have been based on Lt Col MS’s dislike for the relationship between Appellant and SSgt CM, and a paternalistic belief that he knew what was best for SSgt CM; (2) “assuming arguendo that the altercation in February was a sufficient military purpose to justify the initial no-contact order, that justification dissipated quickly. Lt Col MS could point to no other acts of violence between Appellant and SSgt CM that occurred after February 2017;” and (3) the only purpose of the orders was to enhance Appellant’s punitive exposure. We consider each contention in turn including an examination of “the conduct at issue.” United States v. Padgett, 48 M.J. 273, 278 (C.A.A.F. 1998) (citing Womack, 29 M.J. at 91); see generally Moore, 58 M.J. at 468 (focusing on the “specific conduct at issue in the context of the purposes and language of the order”). As to Appellant’s first contention, Lt Col MS’s orders directed Appellant not to contact, communicate, or interact in any way with SSgt CM. As found by the military judge, each order “was thought out and thoughtful as to pur- pose and its parameters.” The military judge also found that Lt Col MS sought to ensure that Appellant did not tamper with or improperly influence SSgt CM, and thus the orders were “connected or related to military duty.” We find the 9The military judge asked defense counsel if it was “the [D]efense’s position that the commander was required to ask [Appellant] and/or [SSgt CM] whether or not they wanted a no-contact order?” Defense counsel replied it was “[i]f he’s going to interfere with their personal rights.” 7 United States v. Proctor, No. ACM S32554 military judge’s factfinding was not clearly erroneous. Thus, we decline to ac- cept Appellant’s contrary assertions that Lt Col MS’s purpose in issuing the orders was his dislike of Appellant’s relationship with SSgt CM or Lt Col MS being unduly protective of what he thought was in SSgt CM’s best interests. Lt Col MS was clear that it was not the relationship he disapproved of; rather, “[w]hat [he] disapprove[d] of [wa]s the violence in their relationship” and he “never interfered with their relationship . . . until [he] . . . was made aware of violence.” The evidence of record demonstrates Lt Col MS genuinely sought to prevent harm to SSgt CM and issued the series of orders to protect her safety, 10 see Padgett, 48 M.J. at 278 (upholding order intended to protect individuals from servicemember), as well as for the good order and discipline of his unit. He also sought to safeguard the ongoing investigation of Appellant. See United States v. Nieves, 44 M.J. 96, 99 (C.A.A.F. 1996) (citation omitted) (declining to find an order prohibiting discussions with witnesses unlawful, in part because there was “no evidence that appellant ever requested permission to interview [a wit- ness] or that such permission was denied”). Lt Col MS stated that he had a concern about Appellant contacting witnesses to threaten them or to influence their testimony. This was a valid concern, and was also related to Lt Col MS’s duty to maintain good order and discipline in his unit. As to Appellant’s second contention, Lt Col MS believed the no-contact or- ders reduced the level of violence between Appellant and SSgt CM even as he suspected Appellant of violating his orders. He also continued the orders, ex- panding them to apply to other named individuals, out of concern that Appel- lant would contact SSgt CM and witnesses to threaten them or influence their testimony. As the investigation of Appellant proceeded, Lt Col MS’s reasons for issuing the orders did not diminish. Under the circumstances, we conclude the commander possessed a valid military purpose for issuing the series of no- contact orders. Lastly, we reject Appellant’s third contention—that the only purpose of the orders was to enhance Appellant’s punitive exposure because contacting wit- nesses to influence an investigation is already prohibited by the UCMJ—as contrary to the military judge’s findings of fact. We recognize the “ultimate offense doctrine” prohibits “the escalation in severity of minor offenses ‘by charging them as violations of orders or the willful disobedience of superiors.’” United States v. Phillips, 74 M.J. 20, 22 (C.A.A.F. 2015) (quoting United States v. Hargrove, 51 M.J. 408, 409 (C.A.A.F. 1999)). Our superior court has similarly 10Lt Col MS explained there were “many reasons for the no-contact orders,” “[o]ne of them to protect [SSgt CM].” One of the commander’s concerns he related to SSgt CM early on was that he “d[id]n’t want to have a funeral in [his] unit.” 8 United States v. Proctor, No. ACM S32554 interpreted this doctrine to prohibit commanders from ordering a member to “follow the law” and to then punish the member for both the underlying crim- inal offense and the failure to follow the order. See Padgett, 48 M.J. at 278. However, Appellant was not charged with both obstruction of justice and the violation of a no-contact order. Thus, we find no reason to conclude that Lt Col MS issued no-contact orders to increase Appellant’s punitive exposure. B. Self-Defense and Defense of Property Appellant contends the military judge erred by failing to consider the pos- sibility that Appellant acted in self-defense and that the evidence raised de- fense of property when Appellant committed the offense of assault consum- mated by a battery against SSgt AG. 11 Appellant claims the military judge was required to instruct on self-defense because there was evidence Appellant’s contact with SSgt AG was a response to SSgt AG’s use of force against Appel- lant. Appellant also claims the military judge was required to instruct, sua sponte, on defense of property because there was evidence the conduct in issue was a result of Appellant’s attempt to lawfully remove trespassers from his home. 1. Additional Background a. Thanksgiving Day SSgt CM shared an off-base residence with Appellant and his children. In November of 2016, SSgt CM invited Airmen from her flight to her home for Thanksgiving dinner. Among the invited guests were SSgt AG, Senior Airman (SrA) JT, and SrA KJ, who testified at trial about an incident between Appel- lant and SSgt AG after dinner. Appellant was working a swing shift and was not at the apartment when guests arrived. When Appellant returned home at around 2300 hours, he changed his clothes and, according to SSgt AG, told her guests to “get the hell out of my crib.” Appellant turned off the music and eve- ryone began to leave. Appellant began cursing the Airmen, calling them “pu[]ies,” and claiming “you guys are just waiting to f[]k my girl,” in refer- ence to SSgt CM. SSgt AG testified he saw a “glare come across [Appellant’s] face” the mo- ment Appellant entered the residence. Appellant aired “frustration” that oth- ers were in his home, and his voice was loud enough to “mean[ ] business.” As others were making their way out, SSgt AG stayed back because he was one of the more senior-ranking Airmen and he wanted to make sure all of the other guests left first, including one of his troops, SrA JT, who was standing “right by the doorway.” As SrA JT was “about to leave” by crossing “the door seal or As charged in Specification 2 of Charge II, Appellant did “unlawfully strangle [SSgt 11 AG] by grabbing his throat with his hand.” 9 United States v. Proctor, No. ACM S32554 the doorway,” Appellant was yelling at SrA JT and “went charging right after him” with a movement that SSgt AG described “was like a really brisk walk in [SrA JT’s] direction,” and Appellant’s “hands were up” in the air. SSgt AG “stepped in between the two of them” and “was able to cut [Appellant] off right by the doorway.” SSgt AG intervened to prevent a fight as he knew there was a long history of “bad blood” between Appellant and SrA JT. SSgt AG further testified that as soon as he was between the two, Appel- lant’s “right hand immediately went straight toward [SSgt AG’s] throat and [Appellant’s] left hand went towards [SSgt AG’s] right arm to try and move [SSgt AG] out of the way.” Appellant’s grip on his throat “started getting tighter and tighter” as SSgt AG told Appellant to “relax” and “let go.” Appel- lant’s children were by the door and pleaded with Appellant to stop. SSgt AG stayed between Appellant and SrA JT, but as Appellant’s grip got tighter it was harder for him to breathe, and he knew he was “going to pass out” if he did not push back. He “decided to keep trying to push [Appellant] back into the household,” and as soon as he did, Appellant’s focus changed from SrA JT to SSgt CM, and Appellant let go of SSgt AG’s throat. SSgt AG departed after SrA JT and was the last guest to leave. SrA JT 12 testified the Thanksgiving dinner party was a “family” setting that ended the moment Appellant arrived home from his shift. While Appellant and SSgt CM spoke in private, the guests looked at each other and asked if anyone knew “[w]hat’s going on?” They wondered if they had offended Appel- lant and did not know what to do. Eventually, Appellant came out of a room and told SrA JT to “get the F out of [Appellant’s] house.” SrA JT understood the demand was addressed to him personally, but all of the flight members began leaving as SrA JT put on his hat and started making his way to the door. Appellant followed and SrA JT was “[r]ight outside the doorway” when he saw SSgt AG and a second guest “kind of holding [Appellant] back, stopping [Ap- pellant] from coming towards” SrA JT who at that point was “already outside.” SrA JT observed Appellant flailing his left arm “up and down” but did not ob- serve Appellant choking SSgt AG. Lastly, SrA KJ testified. She was among seven or eight Airmen from her flight whom SSgt CM invited to Thanksgiving dinner. SrA KJ was standing on a balcony outside the living area when Appellant arrived home. When she came back inside she noticed the mood of the party had changed for the worse. Ap- pellant and SrA JT “started arguing with each other” and “the situation got kind of heated, and everyone started to walk out.” Appellant was “looking di- rectly at” SrA JT, using profanity, and speaking in an angry tone of voice. SrA 12 SrA JT had separated from the military when he testified. 10 United States v. Proctor, No. ACM S32554 KJ was one of the first to leave. SrA JT “was walking out as well” when Appel- lant “charged toward” SrA JT with his hands raised. She observed SSgt AG get between Appellant and SrA JT to try to calm Appellant down and prevent harm to SrA JT and further escalation of the situation. From her vantage of about 20 to 30 feet outside the residence she looked back and saw SSgt AG holding back Appellant and the contact she witnessed lasted a matter of sec- onds. She did not see Appellant choking SSgt AG, but heard SSgt AG repeating in disbelief, “I can’t believe [Appellant] choked me. [Appellant] choked me.” b. Trial The evidence at trial did not touch on Appellant’s and SSgt CM’s property rights or, more generally, their respective legal interests in the residence they shared on Thanksgiving Day in 2016 when Appellant cast out SSgt CM’s guests. There was no testimony as to any verbal agreement, custom, or practice about the presence of guests in their home. However, in her trial testimony about violating their commander’s no-contact orders by remaining in the same residence four months later, on 22 March 2016, SSgt CM explained “[w]e both had our names on the lease, [and] it was both of our apartment.” Lt Col MS testified in findings that he was aware their lease expired on or about June 2017, but his testimony did not address when the lease began, its terms, or who was bound by the lease contract on Thanksgiving in 2016. 13 After the close of evidence, the military judge held an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session with the parties and listed instructions she thought were raised by the evidence. The military judge acknowledged “there has been a great deal of discussion as to self-defense,” but defense of property was not among the instructions she identified. The military judge asked counsel for both parties if they had “[a]ny objections right now to those [instructions] as outlined,” noting counsel would have an opportunity to read her proposed in- structions and make objections later. Defense counsel replied, “Not at this time, Your Honor.” Later in the session the military judge asked counsel for both parties if there were “[a]ny other instructions” they wanted. Defense coun- sel mentioned only an unrelated instruction that no adverse inference should be drawn from Appellant’s pretrial confinement status when he was alleged to have violated one of the orders. After a short discussion, the military judge asked if there were “[a]ny additional special instructions, Defense Counsel?” who replied, “Not at this moment, Your Honor, thank you.” 13Although not admitted in findings, pages of a lease contract were included as attach- ments to Appellate Exhibits III and IV. The lease identified both SSgt CM and Appel- lant as tenants for the term 25 June 2016 through 25 June 2017. 11 United States v. Proctor, No. ACM S32554 Before instructing the members, counsel for both parties reviewed the mil- itary judge’s proposed instructions in another Article 39(a), UCMJ, session. Defense counsel asked for an instruction on “self-defense of others” that im- pacted a specification for which Appellant would be acquitted, but did not raise defense of property to the specification at issue. At the end of the session, the military judge asked, “Anything else, Defense?” and the defense counsel re- plied, “Nothing additional, Your Honor.” At the end of the session after a brief discussion about answering a member’s question, the military judge asked if there was “[a]nything else we need to take up in this [Article] 39(a), [UCMJ, session],” and defense counsel replied, “No, Your Honor.” After the military judge instructed the members on the law, and prior to argument, defense counsel asked for an Article 39(a), UCMJ, session and the members left the courtroom. During the session, and for the first time on the record, the Defense requested the military judge instruct on self-defense for the Thanksgiving incident; however, the Defense did not also request a defense of property instruction. The military judge denied the request for the self-de- fense instruction, the members were seated, and counsel for both parties pre- sented argument. At the conclusion of argument, the military judge instructed the members on the procedural rules for their deliberations and voting, and then asked whether “[c]ounsel object to the instructions given or request additional [in- struction]?” Defense counsel replied, “No, Your Honor.” The military judge re- cessed the court for the evening. The next morning, the military judge gave a copy of her instructions to each member and closed the court for deliberations and voting on findings. 2. Law “Whether a panel was properly instructed is a question of law reviewed de novo.” United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (citation omit- ted). “A military judge must instruct members on any affirmative defense that is ‘in issue.’” United States v. Schumacher, 70 M.J. 387, 389 (C.A.A.F. 2011) (quoting Rule for Courts-Martial (R.C.M.) 920(e)(3)). An affirmative defense is “‘in issue’ when ‘some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose.’” Id. (quoting United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)). The Schumacher court explained “‘some evidence’ entitling an accused to an instruction, has not been presented until ‘there exists evidence sufficient for a reasonable jury to find in [the accused’s] favor.’” 70 M.J. at 389 (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). 12 United States v. Proctor, No. ACM S32554 a. Self-Defense Self-defense is an affirmative defense to a charge of assault consummated by a battery, see generally R.C.M. 916(a) and Discussion, and has two elements. First, the accused must have “[a]pprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on” him; and second, the ac- cused must have believed that the force used was “necessary for protection against bodily harm” and “that the force used by the accused was less than force reasonably likely to produce death or grievous bodily harm.” See R.C.M. 916(e)(3); see also United States v. Yanger, 67 M.J. 56, 57 (C.A.A.F. 2008). Be- cause the defense involves more than one element of proof, the record must contain some evidence upon which members could reasonably rely to find each element before the military judge is required to instruct the members on it. Schumacher, 70 M.J. at 389–90. The right to self-defense is not available to an accused who “was an aggres- sor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the ag- gression, combat, or provocation and before the offense alleged occurred.” R.C.M. 916(e)(4). However, an accused who starts an affray is entitled to use reasonable force in self-defense to defend against an opponent who escalates the level of the conflict. United States v. Dearing, 63 M.J. 478, 484 n.24 (C.A.A.F. 2006) (citations omitted). b. Defense of Property Defense of property is also an affirmative defense to a charge of assault consummated by a battery, although “it is more accurate to refer to defense of property as a ‘special defense,’ and that the prosecution continuously bears ‘the burden of proving beyond a reasonable doubt that the defense did not exist.’” 14 United States v. Davis, 73 M.J. 268, 271 n.3 (C.A.A.F. 2014) (quoting R.C.M. 916(b)(1)). Among the means by which an accused may lawfully defend his property, an accused has a right to eject a trespasser. Id. at 271–72. However, the right is circumscribed as an accused may only use as much force as is reasonably necessary to remove an individual from his property after requesting that the individual leave and then allowing a reasonable amount of time for the individual to leave. A person or invitee who refuses to leave after being rightfully asked to do so becomes a tres- passer and may not resist if only reasonable force is employed in 14Although the defense supposes an accused has a legal right to defend the property at issue, whether real or personal, it is not among the defenses that R.C.M. 701(b)(2) requires notice to the Government before the beginning of trial. 13 United States v. Proctor, No. ACM S32554 ejecting him. However, a property owner may not purposely pro- voke a disturbance on his property and then use his ownership of the property as an excuse for an unnecessary assault in eject- ing another person. If more force is used than is reasonably nec- essary to remove a trespasser, this force constitutes assault and battery. Id. at 272 (citing United States v. Regalado, 33 C.M.R. 12, 14 (C.M.A. 1963)) (additional citations and internal quotation marks omitted). A military judge has a duty to sua sponte instruct on the defense of property when “some evi- dence, without regard to its source or credibility, has been admitted upon which members might rely if they choose.” Id. (quoting R.C.M. 920(e), Discus- sion). c. Waiver “Whether an appellant has waived an issue is a legal question that this Court reviews de novo.” United States v. Rich, ___ M.J. ___, No. 19-0425, 2020 CAAF LEXIS 240, at 8 (C.A.A.F. 28 Apr. 2020) (citing United States v. Davis, 79 M.J. 329, 332 (C.A.A.F. 2020)). In United States v. Gutierrez, the Court of Appeals for the Armed Forces (CAAF) rejected plain error review of a required instruction under R.C.M. 920(e)(3), observing that its “jurisprudence allows af- firmative waiver of affirmative defenses.” 64 M.J. 374, 376 n.3 (C.A.A.F. 2007). The trial judge in Gutierrez stated “there doesn’t appear to be any mistake of fact instruction with regard to battery,” and then pointedly asked the Defense, “Are you requesting one?” Id. at 376. The court found waiver in defense coun- sel’s equally pointed response, “I simply do not want to request one for the battery.” Id. The Gutierrez court explained, “In making waiver determinations, we look to the record to see if the statements signify that there was a ‘purpose- ful decision’ at play.” Id. at 377 (citing United States v. Smith, 50 M.J. 451, 456 (C.A.A.F. 1999)). The court found waiver, reasoning, “[d]efense counsel was presented with the opportunity to request or decline the mistake of fact in- struction as to assault consummated by battery. He chose to decline it, and in doing so he affirmatively waived his right to the instruction.” Id. at 377–78. In Davis, the CAAF again rejected plain error review of a findings instruc- tion. 79 M.J. at 332. The Davis court found waiver when an appellant argued for the first time on appeal that the mens rea of “knowingly” applies to the consent element of Article 120c.(a)(2), UCMJ, 10 U.S.C. § 920c.(a)(2). Davis, 79 M.J. at 331–32. At trial, before instructing the members, the military judge identified the instructions he intended to give including the consent element that the appellant raised as an issue on appeal. Id. at 330. After instructing the members, the military judge “asked whether the defense had any objections or requests for additional instructions,” and the defense counsel replied, “No 14 United States v. Proctor, No. ACM S32554 changes, sir.” Id. After marking his written instructions as an appellate ex- hibit, the military judge again asked if there were any objections, and the de- fense counsel replied, “No, Your Honor.” Id. The Davis court found, “By ex- pressly and unequivocally acquiescing to the military judge’s instructions, Ap- pellant waived all objections to the instructions, including in regards to the elements of the offense.” Id. at 331 (citations and internal quotation marks omitted). In Rich, the CAAF again found waiver of a mistake of fact defense instruc- tion as the court had found in Gutierrez, explaining “when counsel affirma- tively decline[s] to object and offer[s] no additional instructions, counsel ex- pressly and unequivocally acquiesce[s] to the military judge’s instructions, and his actions thus constitute waiver.” Rich, 2020 CAAF LEXIS 240, at *9 (alter- ations in original) (internal quotation marks omitted) (citing Davis, 79 M.J. at 332). In Davis, the CAAF observed, “[W]hile we review forfeited issues for plain error, ‘we cannot review waived issues at all because a valid waiver leaves no error for us to correct on appeal.’” Davis, 79 M.J. at 331 (quoting United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)). Nonetheless, pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c), the Courts of Criminal Appeals have the unique statutory responsibility to affirm only so much of the sentence that is correct and “should be approved.” Thus, we retain the authority to address er- rors raised for the first time on appeal despite waiver at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018); United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (citation omitted) (addressing this court’s re- sponsibility to “assess the entire record to determine whether to leave an ac- cused’s waiver intact, or to correct the error”). 3. Analysis a. Self-Defense Although the three witnesses testified somewhat differently, the rapid on- set of violence at the Thanksgiving party is uncomplicated and the essential facts are not open to question. Appellant charged toward SrA JT 15 who was a guest in the home Appellant and his three children shared with SSgt CM. SrA JT’s presence, and possibly the presence of others, stirred Appellant’s anger, but there is no evidence of any particular words SrA JT uttered or conduct SrA JT engaged in that might cause Appellant to apprehend, upon reasonable 15 Appellant was not charged with assaulting SrA JT. “An ‘assault’ is an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal justification or excuse and without the lawful consent of the person affected.” MCM, pt. IV, ¶ 54.c.(1)(a). 15 United States v. Proctor, No. ACM S32554 grounds, that bodily harm was about to be inflicted wrongfully on Appellant, as might raise the defense of self-defense. R.C.M. 916(e)(3)(A). Appellant alludes to SrA KJ’s testimony that Appellant and SrA JT “started arguing with each other” and “the situation got kind of heated.” How- ever, Appellant cites no authority, and we are aware of none, that justifies a resort to violence and entitles an aggressor to a self-defense instruction from an argument in which the words that were exchanged, by whom, and the back- ground or context are not evident from the record. Considering SrA KT’s testi- mony alone or with the testimony of other witnesses, there is no evidence SrA JT manifested any threat of attack or intent to start a fight. There was no evidence upon which members might rely to find that either SSgt AG or SrA JT, and not Appellant, started the affray. See Schumacher, 70 M.J. at 389. It follows that SSgt AG’s intervention and physical contact with Appellant when he came to SrA JT’s defense was in every respect a response to an unjustified attack. 16 Appellant had no right to self-defense when he rushed at SrA JT be- cause the uncontradicted evidence at trial was that Appellant was the initial, unprovoked aggressor. R.C.M. 916(e)(4). As SSgt AG stepped between Appellant and SrA JT, and Appellant then made contact with SSgt AG’s body, Appellant’s assault consummated in bat- tery. 17 SSgt AG was legally justified to defend both himself, R.C.M. 916(e)(3), and SrA JT, R.C.M. 916(e)(5), with force necessary for protection against bodily harm under the principles of self-defense and defense of another. Only if SSgt AG used unlawful force, and thereby escalated the level of the conflict, would Appellant then be justified to use force to defend against the escalation. See generally Dearing, 63 M.J. at 484 n.24 (citing United States v. Cardwell, 15 M.J. 124, 126 (C.M.A. 1983)). This is so because “[e]ven a person who starts an affray is entitled to use self-defense when the opposing party escalates the level of the conflict.” Cardwell, 15 M.J. at 126 (citing United States v. Acosta-Vargas, 32 C.M.R. 388 (C.M.A. 1962); United States v. Straub, 30 C.M.R. 156 (C.M.A. 1961)) (“The theory of self-defense is protection and not aggression, and to keep the two in rough balance the force to repel should approximate the violence threatened.”). 16A bystander acts at his own peril when he “goes to the aid of an apparent assault victim” because he assumes the legal status of the defended person. R.C.M. 916(e)(5), Discussion. If, unbeknownst to the bystander, the apparent victim was in fact the ag- gressor, the bystander has no right to self-defense. Id. In the instant case, as discussed, there is no evidence on which a rational factfinder could conclude SrA JT was an ag- gressor or a provocateur. “A ‘battery’ is an assault in which the attempt or offer to do bodily harm is consum- 17 mated by the infliction of that harm.” MCM, pt. IV, ¶ 54.c.(2)(a). 16 United States v. Proctor, No. ACM S32554 Appellant was entitled to a self-defense instruction tailored to include the principle of escalation of force if there was “some evidence” in the record which the members could rely upon that placed escalation in issue. United States v. Stanley, 71 M.J. 60, 63–64 (C.A.A.F. 2012) (failure to instruct on the principle of escalation of force was not error because the record lacked any evidence that would trigger a duty to instruct). In the instant case, it was Appellant who abruptly escalated the level of force in the conflict and intensified the violence by immediately grabbing SSgt AG’s throat and using Appellant’s own power and strength to try to force his way around SSgt AG and threaten harm to SrA JT. While SSgt AG overcame Appellant’s force by holding Appellant back and stopping Appellant from reaching SrA JT, there is no evidence SSgt AG esca- lated his use of force beyond that which was necessary to fend off Appellant’s continued unlawful assault and battery. In particular, Appellant’s strangling SSgt AG at the same time Appellant continued to manifest unprovoked aggres- sion toward SrA JT was unnecessary for his own defense. See, e.g., United States v. Ginn, 4 C.M.R. 45, 50 (C.M.A. 1952) (“Self-defense is a defensive, not an offensive act; and it cannot exceed the bounds of mere protection of one’s self.”). We find the issue of self-defense was not reasonably raised by the evidence, see Schumacher, 70 M.J. at 389–90, and the military judge did not err in de- clining to instruct the members on self-defense or give a tailored instruction that included the principle of escalation of force in self-defense. b. Defense of Property Appellant also claims the military judge was required to instruct, sua sponte, on defense of property as a defense to Appellant strangling SSgt AG. The law recognizes that “individuals may protect their place of abode against unlawful intrusion. When one with the right to do so has ordered another from the premises, the latter has no right to refuse or resist.” Regalado, 33 C.M.R. at 15 (citing United States v Adams, 18 C.M.R. 187, 194 (C.M.A. 1955) (appel- lant occupying government tent had right to protect himself from trespasser); United States v Berry, 20 C.M.R. 354 (C.M.A. 1956)). We find Appellant affirmatively waived a defense of property instruction. We reach this conclusion from defense counsel’s discussions with the military judge in three Article 39(a), UCMJ, sessions held to discuss proposed findings instructions. Considered together, these sessions included a discussion of ap- plicable defenses to include self-defense as a complete defense to the specifica- tion at issue. In each session, defense counsel neither objected nor requested a defense of property instruction. After the conclusion of the findings arguments, the military judge again asked if the Defense had any objections or requests for additional instructions. The Defense replied it had no objections to the in- structions as given, and did not request any additional instructions. 17 United States v. Proctor, No. ACM S32554 On these facts, Appellant expressly and unequivocally acquiesced to find- ings instructions that did not include the defense of property instruction Ap- pellant claims should have been given. See Davis, 79 M.J. at 332 (citing United States v. Wall, 349 F.3d 18, 24 (1st Cir. 2003) (“[C]ounsel twice confirmed upon inquiry from the judge that he had ‘no objection and no additional requests [regarding the instructions].’ Having directly bypassed an offered opportunity to challenge and perhaps modify the instructions, appellant waived any right to object to them on appeal.” (alteration in original))). Appellant thus waived the objection he raises on appeal. We find no reason to pierce Appellant’s waiver in this case, see Hardy, 77 M.J. at 442–43; see also Chin, 75 M.J. at 223, because the military judge com- mitted no error. Appellant’s claim supposes he had a right to an instruction that he could oust SSgt CM’s guests from their shared residence. 18 However, Appellant points to no evidence at trial upon which members might have relied to find Appellant had a right he asserts for the first time on appeal. Appellant’s lease was not admitted in evidence. No evidence suggests Appellant’s property rights under Colorado law were superior to SSgt CM’s own, that Appellant was at liberty to force SSgt CM’s guests to leave, or that SSgt CM acceded to the removal of her guests on Appellant’s terms. Even if we were to assume Appellant had the requisite property rights and legal interest to demand SSgt CM’s guests leave their shared residence, the evidence does not suggest that Appellant gave them reasonably adequate time to comply and that Appellant used no more force than was reasonably neces- sary. Instead, the evidence indicates Appellant did what the law disallows: he “purposely provoke[d] a disturbance on his property and then use[d] his own- ership of the property as an excuse for an unnecessary assault in ejecting an- other person.” Davis, 73 M.J. at 272. Defense of property simply was not in issue given the facts of this case and the military judge did not err in failing to sua sponte instruct the members that it was. C. Allegation of Unlawful Command Influence Appellant renews his claim at trial that over a year before Appellant’s court-martial, Lt Col MS orchestrated a commander’s call message to discour- age Appellant’s coworkers from providing character letters or testifying on Ap- 18Appellant’s claim is, to some extent, contrary to the position taken by the civilian defense counsel who argued in findings that Appellant and SSgt CM “lived together,” “were on a lease together,” and “they both have rightful legal access to that property.” (Emphasis added). 18 United States v. Proctor, No. ACM S32554 pellant’s behalf. Appellant requests this court set aside and dismiss the find- ings and sentence on the basis of apparent UCI in the adjudicative stage of his court-martial. 1. Additional Background Lt Col MS released Appellant from pretrial confinement on 1 August 2017 after the convening authority withdrew and dismissed Appellant’s original charges, and before Lt Col MS preferred charges anew on 14 August 2017. A week earlier, on 7 August 2017, and just over a year before Appellant’s trial and sentencing, Lt Col MS held a commander’s call as was his practice every six months. The topics covered at the commander’s call included military awards and recognition, civilian achievements, sexual assault, and NCOs be- having poorly and making bad decisions. 19 Lt Col MS encouraged the squadron to “support” Airmen, no matter what process or difficulty the Airman may be going through, but not “enable” bad behavior. He also addressed the impropriety of spreading rumors, stating met- aphorically, “You guys may know what your friends are telling you, but you don’t have the big picture,” and that there was “more than one chapter in the book.” He testified, My goal was to get NCOs to start acting like NCOs, and other NCOs who were holding the line, to call the other NCOs out. They should be embarrassed when their NCOs are acting a cer- tain way and giving their corps a bad name. Just like we get embarrassed when officers misbehave. Lt Col MS told a story from when he was enlisted and a junior Airman under his supervision asked him to provide a character letter. The Airman was undergoing nonjudicial punishment proceedings for breaking curfew in a de- ployed location. At the commander’s call, Lt Col MS explained why he declined, reasoning that the Airman not only disobeyed the order of the mission com- mander, but Lt Col MS had looked the Airman in the eye and told him to make sure he was back on time. Lt Col MS related he was there to support the Air- man but that he could not write a letter advocating that his commander not take a stripe over the good order and discipline of the unit. Lt Col MS explained at the commander’s call about his “commitment to the Air Force” then, noting his commander at the time would question Lt Col MS’s judgment if Lt Col MS signed a letter advocating that the commander not take a stripe. 19Lt Col MS addressed the squadron, and afterwards the senior NCOs separately ad- dressed the NCOs to reinforce the commander’s message and answer questions. Ap- pellant was not in attendance at the commander’s call or the meeting of NCOs. 19 United States v. Proctor, No. ACM S32554 Lt Col MS’s comments did not mention anyone by name or reference alle- gations or incidents of misconduct in the unit. Even so, his remarks were prompted by knowledge of issues involving Appellant and SSgt CM, and other NCOs in the squadron. Lt Col MS was aware that Appellant’s friend, SSgt JP, had responded to Appellant’s Facebook post with a message that Lt Col MS viewed as a continuation of Appellant’s Facebook threat. The catalyst for mak- ing NCO behavior a topic of the commander’s call was SSgt JP’s reaction to Appellant’s recent release from pretrial confinement at the same time the orig- inal charges that Lt Col MS had preferred against Appellant were withdrawn and dismissed by the convening authority. Lt Col MS testified he knew at the time of the convening authority’s disposition he would prefer charges anew. 20 Around this time Lt Col MS learned from his NCOs that Appellant and SSgt CM continued to contact each other in violation of his orders, including during the time when Appellant was in pretrial confinement. He felt the squadron took a negative turn when charges were withdrawn and dismissed because the Airmen were wondering what was going on and had lost faith in the system. 21 Lt Col MS’s remarks were prompted also by matters unrelated to Appellant, including that SSgt JP had been found in his vehicle outside a club with over twice the legal limit of alcohol in his blood, an NCO had operated a motorcycle in a manner that caused injury to a junior Airman who was a passenger, and several NCOs had recently failed their physical fitness assessments. After the commander’s call, a junior NCO 22 who was Appellant’s friend asked to meet with the commander. Lt Col MS was aware that the NCO had previously given a statement to law enforcement stating he “thought that the unit and the Air Force were after [Appellant] and [Appellant] wasn’t that bad.” Lt Col MS met with the NCO who assured the commander he was friends with Appellant, but understood the commander’s perspective and “everything that’s 20Lt Col MS was concerned about the effect on his unit of SSgt JP “[w]alking around just talking real loud saying, ‘My homey’s getting released. He’s getting out. We are going to throw a barbecue,’” with the implication that Appellant was in the clear. Lt Col MS was concerned also because two individuals around whom SSgt JP revelled in Ap- pellant’s seeming good fortune were individuals SSgt JP disliked and were witnesses in the Government’s case. Lt Col MS believed SSgt JP knew they were witnesses be- cause SSgt JP was friends with Appellant. 21 Lt Col MS testified he knew of an instance of NCOs discussing Appellant’s orders violations in front of a junior Airman. He explained, “When you are in command . . . [y]ou can feel your unit start to question and doubt what is going on. Why is leadership not taking care of things?” In response to the military judge’s questions, he added, “A unit that had high morale and doing very well was starting to go flat.” 22The junior NCO did not testify at the hearings. However, Lt Col MS testified about their conversations. 20 United States v. Proctor, No. ACM S32554 going on.” Because the NCO was close friends with Appellant, Lt Col MS rein- forced his expectation “to support [Appellant] when he needs something. Just do not enable him.” Lt Col MS testified in general about other exchanges he had with the junior NCO in which the commander encouraged the NCO to con- tact Appellant’s defense counsel because the NCO was not following through on returning calls by Appellant’s defense counsel. Lt Col MS told him, “You call the defense” because “[t]hat’s part of the process. You call them. They are going to interview you. All I ever expect anybody to do in this unit is just tell the truth.” The squadron’s first sergeant testified he was aware the junior NCO was visiting Appellant when Appellant was in pretrial confinement, and thanked him for supporting Appellant every time the first sergeant and the NCO talked. Both the Defense and trial counsel called Airmen who were present for the commander’s call to testify on the motion. The Defense called SSgt JP and a senior airman, both of whom understood the commander’s message to be that those who support an NCO in trouble need to rethink their careers in the Air Force. 23 While SSgt JP initially understood that the commander’s message was to not support Appellant, when he sought clarification from a senior NCO, he was told that the message was not about avoiding the Defense or withholding support for Appellant. Ultimately, SSgt JP did not believe the commander’s message was to stay away from Appellant or avoid speaking with Appellant’s defense counsel. Two senior NCOs testified they understood the commander’s message to be to support, and not enable, Airmen in trouble. SSgt AG, who was later the victim of Appellant’s assault consummated by a battery, also attended the commander’s call. He understood the message to be: if you support certain individuals, you need to rethink your position in the Air Force. SSgt AG was confused by the message and believed Lt Col MS was not clear on what “sup- port” meant. He believed the overall message was to rethink one’s position in the Air Force so as not to follow a bad path. SSgt AG did not seek to clarify the message with anyone in his chain of command. Ultimately, he did not believe he would be punished for his testimony or that the commander threatened punishment if he supported troubled NCOs. 23The senior airman understood his commander’s message to be “[i]f you’re supporting an NCO that’s in trouble, you might want to rethink your career. . . . [I]t might put you in a negative light . . . or you might be looked at as the problem, also.” He testified he thought it might rub the commander the wrong way to write a character statement “because [Lt Col MS] never really made it clear what he meant by that statement, so he left a lot of room for imagination.” He believed there would not be ramifications to his testimony on the motion because he intended to separate from active duty. 21 United States v. Proctor, No. ACM S32554 2. Law “Allegations of unlawful command influence are reviewed de novo.” United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013) (citations omitted). Where an assertion of unlawful command influence is litigated at trial, we review the military judge’s findings of fact for clear error, but we review de novo the legal question whether those facts constitute unlawful command influence. United States v. Ayers, 54 M.J. 85, 95 (C.A.A.F. 2000) (citing United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994)). “On appeal, the accused bears the initial bur- den of raising unlawful command influence.” Salyer, 72 M.J. at 423. “Two types of unlawful command influence can arise in the military justice system: actual unlawful command influence and the appearance of unlawful command influence.” United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017). Unlike actual UCI, a meritorious claim of an appearance of UCI does not re- quire prejudice to an accused. Boyce, 76 M.J. at 248 (footnote omitted). “[W]hen an appellant asserts there was an appearance of unlawful command influ- ence[,] [t]he appellant initially must show ‘some evidence’ that unlawful com- mand influence occurred.” Id. at 249 (quoting United States v. Stoneman, 57 M.J. 35, 41 (C.A.A.F. 2002)) (additional citation omitted). This initial showing requires an accused to demonstrate: (a) facts, which if true, constitute unlawful command influence; and (b) this unlawful command influence placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding. Id. (internal quotation marks and citation omitted). Though the burden of this threshold showing on an accused is low, the evidence presented must consist of more than “mere allegation or speculation.” Salyer, 72 M.J. at 423 (citation omitted). “Once an appellant presents ‘some evidence’ of unlawful command influ- ence, the burden then shifts to the government to . . . prov[e] beyond a reason- able doubt that either the predicate facts proffered by the appellant do not ex- ist, or the facts as presented do not constitute unlawful command influence.” Boyce, 76 M.J. at 249 (citing Salyer, 72 M.J. at 423) (additional citation omit- ted). If the Government fails to rebut the appellant’s factual showing, it may still prevail if it proves “beyond a reasonable doubt that the unlawful command influence did not place ‘an intolerable strain’ upon the public’s perception of the military justice system and that ‘an objective, disinterested observer, fully informed of all the facts and circumstances, would [not] harbor a significant 22 United States v. Proctor, No. ACM S32554 doubt about the fairness of the proceeding.’” Id. at 249–50 (quoting Salyer, 72 M.J. at 423) (internal quotation marks omitted). 3. Analysis The military judge found Appellant did not meet his threshold burden to demonstrate “some evidence” of UCI and denied the motion. Boyce, 76 M.J. at 249. On appeal, Appellant asserts the Defense did present “some evidence” of at least an appearance of UCI in three respects, specifically: (1) that Lt Col MS made comments about his “NCO problem” in large part because of Appellant’s case; (2) that Lt Col MS attempted but failed to distinguish supporting Airmen from enabling Airmen; and (3) that Lt Col MS told the story about declining to provide a character letter for an Airman on deployment, because of the duty he felt to the Air Force and the negative consequences it could have had to his career. Appellant contends this evidence was a sufficient showing of apparent adjudicative UCI to shift the burden to the Government, which cannot prove beyond a reasonable doubt that the appearance did not create an intolerable strain on the public’s perception of the fairness of the military justice system. Accordingly, Appellant urges us to set aside and dismiss the findings and sen- tence. Although the record is unclear as to the exact words Lt Col MS spoke at the commander’s call or the message that was conveyed, we find Appellant met his initial showing of “some evidence” of apparent UCI. See Boyce, 76 M.J. at 249. Even if we accept the military judge’s factfinding that Lt Col MS did not or- chestrate a message to discourage members of his squadron from providing character letters or testifying on Appellant’s behalf as Appellant contends he did, there is no question Lt Col MS had Appellant in mind when he made his comments, and members of the squadron who knew Appellant well would rec- ognize Appellant was among the Airmen who were the focus of his remarks. The commander’s recitation of the personal story illustrated reasons not to pro- vide a requested character statement for an Airman facing discipline that was heavy on repercussions and less so on providing information to assist with dis- position and discipline of the offender. Lt Col MS knew he was going to reprefer charges on Appellant when he made his remarks. Nonetheless, we conclude that the evidence of apparent UCI was rebutted by the Government’s proof that there was no intolerable strain upon the pub- lic’s perception of the military justice system beyond a reasonable doubt. The commander’s call, held over a year before Appellant’s trial, addressed multiple topics; one of which was NCO misconduct, which the commander spoke about in general terms without identifying either Appellant, the facts underlying the investigation of Appellant’s misconduct, or repreferral of charges that would be forthcoming. While the commander told a personal story about refusing to write a character letter to an Airman who committed misconduct under his 23 United States v. Proctor, No. ACM S32554 supervision, importantly none of the witnesses testified that they understood his commander’s call message as one discouraging them from writing character letters for Appellant. Although charges were preferred one week after the commander’s call, trial on the merits was not held until more than a year later. No members of the squadron testified that Lt Col MS would take any action against them for their participation in the court-martial, and there is no evidence in the record that any Airman refused to testify or write a character letter in support of Appellant for sentencing. There is no evidence that a witness once supportive of Appel- lant later withdrew or changed any assurance of support. We conclude these facts demonstrate that the Government met its burden to demonstrate beyond a reasonable doubt that no fully-informed, disinterested, objective observer would doubt the fairness of Appellant’s court-martial. Boyce, 76 M.J. at 249– 50 (citation omitted). III. CONCLUSION The approved findings and sentence are correct in law and fact, and no er- ror materially prejudicial to the substantial rights of Appellant occurred. Arti- cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find- ings and the sentence are AFFIRMED. FOR THE COURT CAROL K. JOYCE Clerk of the Court 24	{ "pile_set_name": "FreeLaw" }
249 F.3d 592 (7th Cir. 2001) COMMODITY FUTURES TRADING COMMISSION, Plaintiff-Appellee,v.CARMEN FIELD, individually and d/b/a HFI, MONA SMITH, individually and d/b/a HFI, Defendants-Appellants. No. 00-1764 In the United States Court of Appeals For the Seventh Circuit Argued September 28, 2000Decided April 24, 2001 Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 C 281--Allen Sharp, Judge. Before MANION, ROVNER, and DIANE P. WOOD, Circuit Judges. ROVNER, Circuit Judge. 1 The Commodity Futures Trading Commission (the "Commission") filed a civil complaint against appellants and other defendants, alleging that they defrauded participants in two commodity pools by misappropriating participants' funds, misrepresenting material facts while soliciting participants, and issuing false statements to the pool participants. The parties engaged in settlement discussions, which form the basis of this appeal. Field and Smith contend that a binding oral agreement resulted from those discussions, and the Commission disputes that assertion. The district court sided with the Commission, and after a bench trial, found Field and Smith in violation of antifraud and registration provisions of the Commodity Exchange Act including 7 U.S.C. sec.sec. 1a(4), 6o(1), 6b(a)(i), and 6b(a)(ii), and its regulation 17 C.F.R. sec.4.20. The district court ordered permanent injunctive relief, enjoining Field and Smith from further violations, and inter alia, from directly or indirectly soliciting or accepting funds in connection with the sale of a commodity futures contract, trading commodity futures or commodity options for their own accounts or on their behalf, or controlling or directing commodity futures trading. They were further ordered to disgorge their ill-gotten gains in the amount of $880,811, and Smith was additionally ordered to disgorge the sum of $146,154. The court also ordered Field and Smith to pay restitution totaling $1,026,965.15 to certain investors, and Field was ordered to make further restitution of $234,561.52 to other investors. The appellants moved for a new trial, asserting that the district court erred in ruling that there was no settlement agreement, and in failing to at least grant an evidentiary hearing on the issue. The court denied the motion, and they now raise those same issues on appeal. 2 Appellants maintain that an oral settlement agreement was reached with the Commission as a result of a settlement conference on June 9, 1999 with Magistrate Judge Pierce, approximately a month before his untimely death. We need not explore the contours of that alleged agreement, however, because it is clear that the attorneys representing the Commission at that conference were without authority to enter into any binding settlement agreement, and therefore no enforceable agreement could have resulted from that conference. The sequence of events makes that crystal clear. 3 In the order scheduling the settlement conference, the magistrate judge required that, unless excused by the court in advance, persons possessing final decision-making authority with respect to settlement had to attend the settlement conference. In response to that order, the attorneys for the Commission sent a letter to the magistrate judge requesting an exception to that requirement. The letter explained that the Commission prosecutes actions through its Division of Enforcement (the "Division"), but that the Division does not possess independent settlement authority. Instead, the Division "presents executed offers of settlement to the Commission with specific recommendations that any such offer be accepted or declined, and in the case of federal litigation, to grant the Division authority to enter into the proposed settlement." CFTC requested that it be allowed to work within that framework, and specifically requested that it "be allowed to participate in the settlement conference with a Division attorney possessing authority to negotiate the terms of a settlement that the Division will affirmatively recommend the Commission accept." The magistrate judge granted that request to modify the usual requirement that someone with final authority to settle be present, and issued an order tracking the language requested by the Commission allowing participation by persons with authority to negotiate terms that would be recommended to the Commission. 4 It is well settled that a settlement on behalf of the United States may be enforced only if the person who entered into the settlement had actual authority to settle the litigation. United States v. LaCroix, 166 F.3d 921, 923 (7th Cir. 1999); Urso v. United States, 72 F.3d 59, 60 (7th Cir. 1995). That stands in contrast to settlement of cases by private parties, where apparent authority may be sufficient to bind a litigant. See Pohl v. United Airlines, Inc., 213 F.3d 336 (7th Cir. 2000). The sequence of events recited above leaves no doubt that the attorneys who engaged in the settlement discussion on behalf of the Commission lacked the actual authority to bind the government, a fact that should have been clear to appellants as well given the letter from the Commission and the magistrate judge's subsequent order allowing the participation of the Division attorneys even though they lacked final authority to settle. The appellants seem to misread the Commission's statement that the attorneys would have the authority to negotiate, as somehow implying that they had authority to finally settle the case. That reading defies the plain language of the letter and the magistrate judge's order. Because the Division attorneys lacked the actual authority to settle the case, no agreement reached with them at the settlement conference is binding on the government. We note in passing that even if they had the authority to settle, it is fairly clear from the record that no settlement was actually reached at that conference, but that step we need not take given their lack of authority to enter into a binding settlement agreement in the first place. For the above reasons, the decision of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
Filed 11/19/15; pub. order 12/18/15 (see end of opn.) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT JONNIE ROE, a Minor, etc., et al., H042060 (San Benito County Petitioners, Super. Ct. No. CU-14-00017) v. SUPERIOR COURT OF SAN BENITO COUNTY, Respondent; HOLLISTER SCHOOL DISTRICT et al., Real Parties in Interest. Petitioners Jonnie Roe, a minor, (Jonnie), Jane Roe (Jane), and John Roe (John) assert, among other claims, that the superior court had no authority to order interviews of Jane and John, Jonnie’s parents, collateral to the mental examination of Jonnie and, in issuing such an order, the court exceeded its authority under Code of Civil Procedure section 2032.020.1 As explained below, we agree. I Background Real parties in interest (defendants) are the named defendants in the underlying civil action for damages (CU-14-00017) brought by Jonnie (by and through his guardian 1 All further statutory references are to the Code of Civil Procedure unless otherwise specified. ad litem, John) and Jane. The complaint alleges that Jonnie, while a kindergartner at an elementary school in the Hollister School District, was sexually molested at school by another male kindergartener on two occasions.2 The named defendants are Hollister School District (School District) and Bill Sauchau, who is alleged to be the elementary school’s principal; Kathy Hudson, who is alleged to be a teacher at the school; and a person with the surname of Zamora (first name unknown), who is alleged to be, “a playground monitor and/or yard supervisor” at the school. School District brought a motion in respondent San Benito County Superior Court (superior court) for an order compelling Jonnie to submit to an independent mental examination, which would include personal interviews of Jonnie and his parents by Dr. Anlee Kuo, a psychiatrist, and psychological testing of Jonnie by Dr. Sarah Hall, a psychologist. The superior court granted the motion on March 2, 2015. Petitioners sought a writ of mandate “compelling the respondent court to vacate its order of March 2, 2015 insofar as it compels John and Jane Roe to submit to interviews by the defense forensic psychiatrist, refuses to permit John, as guardian, to attend Jonnie’s interview, and refuses to order defendants to deliver the written tests administered to Jonnie and their results and to enter a new order without requiring such interviews and requiring defendants to deliver the tests and the results . . . .” On March 12, 2015, we issued a limited order staying the superior court’s March 2, 2015 order only insofar as it compels the interview of Jonnie’s parents, until further order of this court. We subsequently ordered the respondent superior court “to 2 The first cause of action for negligence, the second cause of action for negligence per se-failure to report known and/or suspected child abuse, and the third cause of action for negligent supervision were asserted by only Jonnie (by and through his guardian ad litem); the fourth cause of action for intentional infliction of emotional distress and the fifth cause of action for negligent infliction of emotional distress were asserted by both Jonnie (by and through his guardian ad litem) and his mother, Jane; and the sixth cause of action for concealment was asserted by only Jane. 2 show cause . . . why a peremptory writ should not issue as requested in the petition for writ of mandate.” II Discussion A. Parental Interviews Collateral to Mental Examination of Minor 1. Facts The superior court’s March 2, 2015 order sets forth the scope and length of the mental examination of Jonnie by Drs. Kuo and Hall. The order authorizes Dr. Hall to administer four specific psychological tests to Jonnie. It prohibits third-party observers during those examinations but requires the examinations to be audiotaped. The March 2, 2015 order further compels Jonnie’s parents to submit to “collateral interviews” as part of the mental examination of their son. The order limits the scope of those interviews to parental “observations about the mental physical symptoms that Jonnie Roe has expressly put into controversy . . . .” It also places the following limitations on those interviews: “Any questioning must be directly relevant, and a nexus must exist to the information sought and the claimed symptoms so as to protect Jonnie Roe’s, Jane Roe’s, and John Roe’s privacy. Dr. Kuo may not inquire about Jane Roe’s or John Roe’s mental state. [¶] Dr. Kuo’s interview shall not be unnecessarily repetitive of questions asked in deposition proceedings and other written discovery to date.” 2. Section 2032.020 Section 2032.020, subdivision (a), sets forth the three categories of persons subject to mental examinations: “Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.” There is no dispute that Jonnie’s mental state is in 3 controversy. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 [“a party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy”].) The mental examination must be “performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” (§ 2032.020, subd. (c).) Defendants argue that a collateral interview of a minor’s parents is permissible as part of an independent mental examination of the minor and is required by the professional standard of care in psychiatry. They suggest that, since the examiner must be a licensed physician or psychologist, the California Legislature “must expect a minimum level of competence from the physician or psychologist and similarly must require the physician or psychologist to practice within the standard of care applicable to their [sic] licensure or specialty.” They assert that “[a] collateral interview is therefore at least implicitly authorized by the Code of Civil Procedure.” This case presents a straightforward question of statutory interpretation. “ ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] ‘We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature’s enactment generally is the most reliable indicator of legislative intent.’ [Citations.] The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]” (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) “A statutory provision is ambiguous if it is susceptible of two reasonable interpretations. (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519.)” (People v. Dieck (2009) 46 Cal.4th 934, 940.) “[I]f the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we 4 may also consider the consequences of a particular interpretation, including its impact on public policy. [Citations.]” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.) “Only when the language of a statute is susceptible [of] more than one reasonable construction is it appropriate to turn to extrinsic aids, including the legislative history of the measure, to ascertain its meaning. [Citation.]” (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055.) “When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. [Citations.]” (People v. Overstreet (1986) 42 Cal.3d 891, 895.) “ ‘[A]n intention to legislate by implication is not to be presumed.’ [Citations.]” (In re Christian S. (1994) 7 Cal.4th 768, 776.) “A court may not, ‘under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992.) “ ‘Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ [Citation.]” (In re Jennings (2004) 34 Cal.4th 254, 265.) “[W]e are mindful of this court’s limited role in the process of interpreting enactments from the political branches of our state government. In interpreting statutes, we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law, ‘ “ ‘whatever may be thought of the wisdom, expediency, or policy of the act.’ ” ’ [Citation.] ‘[A]s [the Supreme Court] has often recognized, the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government . . . .’ (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 (conc. opn. by Werdegar, J.).) It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature. ‘This court has no power to rewrite the statute so as to make it conform to a 5 presumed intention which is not expressed.’ [Citations.]” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632-633.) Section 2032.020 establishes only three categories of persons subject to mental examination. “The three statutory categories of persons who may be examined are exclusive because, after the adoption of the 1957 statutes dealing with civil discovery, our courts lack the power to order discovery beyond that permitted by the statutes. [Citations.]” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 650 (Cruz) [former § 2032, subd. (a) (now § 2032.020, subd. (a))]; see Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 343 (Reuter) [stating with respect to former § 2032, “[t]he persons covered by the statute are clearly specified”].) While Jane is a plaintiff in the underlying action, the motion sought to compel a mental examination of only Jonnie. Jane was not a “party” for purposes of that motion. John is not a “party” for the purposes of that motion either; he is not even a “party” to the underlying action. The “guardian ad litem is not a party to the action; instead, he or she is a representative of record of a party who lacks capacity to sue. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 964.)” (Safai v. Safai (2008) 164 Cal.App.4th 233, 245; see § 372.) There is no argument that either parent is an agent of Jonnie or in the custody or under the legal control of Jonnie within the meaning of section 2030.020, subdivision (a). Nothing in section 2032.020 contemplates a “collateral interview” of a minor’s parents as part of a mental examination of a party who is a minor. In Reuter, a mother and her son were plaintiffs in a lawsuit that arose “from an automobile accident in which the son was injured and his father killed.” (Reuter, supra, 93 Cal.App.3d at pp. 334-335.) The appellate court held that former section 2032 did not authorize psychological testing of plaintiff mother collateral to the psychiatric examination of her son where mother’s mental condition was not in controversy even though the psychiatrist stated that testing of the mother was necessary to complete his examination of the son. (Reuter, supra, at pp. 340-345.) The court stated: “[M]any different parties may be the main influence in 6 any particular persons’ [sic] mental state—his parent, his priest, his teacher, his [L]ittle [L]eague coach. [Former] Section 2032 does not create a power broad enough to allow the court to order all these parties to submit to a battery of tests to determine the extent of their influence on a child’s mental state merely on a psychiatrist’s declaration that he needs them.” (Id. at p. 342.) While interviewing the parents of a child to gain background and information about that child may be a sound professional practice from a psychiatrist’s viewpoint, section 2030.020’s plain language does not empower a trial court to make a discovery order requiring such parental interview as part of a mental examination of a party who is a minor.3 Such authority must come from the Legislature. B. Mental Examination of Jonnie Ordered for March 16, 2015 The plaintiffs in the underlying action requested that John, as Jonnie’s guardian ad litem, be permitted to observe Dr. Kuo’s interview of Jonnie. The March 2, 2015 order set Dr. Kuo’s mental examination of Jonnie for March 16, 2015 (unless the parties agreed to an alternative date) and, as indicated, it prohibited third-party observers during the examination. Petitioners have informed this court that this examination has been completed and any issue concerning the presence of an observer or attorney during that examination is moot. We agree that issue has been rendered moot since there is no effectual relief that may be granted, and we do not address it. (See Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 862-863.) 3 Our conclusion renders moot the questions (1) whether collateral interviews of Jane and John, as an adjunct to the mental examination of Jonnie, would violate their constitutional rights to privacy or their rights to confidential marital communications and (2) whether the order’s language setting forth the scope of the collateral parental interviews is impermissibly vague. 7 C. Written Testing Materials and Jonnie’s Answers Section 2032.610, subdivision (a), provides in pertinent part: “If a party submits to . . . a physical or mental examination in compliance with . . . an order of court under Article 3 (commencing with Section 2032.310) . . . , that party has the option of making a written demand that the party at whose instance the examination was made deliver . . . the following to the demanding party: [¶] (1) A copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” If the party submitting to an examination exercises the option of making such a demand, a copy of the requested reports must “be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.” (§ 2032.610, subd. (b).) In their opposition to the motion to compel the mental examination of Jonnie, plaintiffs requested an order compelling defendants to produce all reports required by section 2032.610. They additionally stated that they should be provided with copies of the written test questions and Jonnie’s responses. In its reply to that opposition, School District responded that Dr. Hall objected to production of testing materials because they were subject to copyright law, and it sought a protective order in the event the superior court ordered disclosure of those materials. It agreed to provide a written report pursuant to section 2032.610, subdivision (a). During the hearings on the motion, the superior court told the parties: “I’m going to order that [Dr. Hall] comply with the Code of Civil Procedure [section 2032.610]. I’m not going to start defining the elements. We’ll wait and see how she complies, and if you believe she has failed to comply, then you can deal with that with a motion to compel.” It agreed that the phrase “the results of all tests” did not mean the written testing materials but rather the findings made. The superior court indicated that it would order compliance in the statutory language of section 2032.610. 8 As part of the March 2, 2015 order, the superior court ordered both examiners to provide plaintiffs with the reports statutorily required by section 2032.610. Without specifying any legal basis, the superior court specified that plaintiffs were not entitled to the written testing materials used by Dr. Hall and Jonnie’s answers thereto without further order of the court. Petitioners seek a writ of mandate compelling defendants in the underlying case to deliver the written tests administered to Jonnie and the test results, impliedly including Jonnie’s test answers. Petitioners argue that copyright law is not a valid reason for the court to refuse to compel the examiner to deliver the tests and test results. The petition does not, however, allege that the superior court’s refusal was based on copyright law and support that allegation by citation to the record. (See Cal. Rules of Court, rules 8.204(a)(1)(C), 8.485(a), and 8.486(b).) The superior court’s ultimate order did not contain any mention of copyright law. We will not issue an advisory opinion on an abstract question of law. In their argument, petitioners imply that section 2032.610, subdivision (a)(1), requires the production of the written testing materials and Jonnie’s answers by analogy to Penal Code section 1054.3, subdivision (a)(1), a criminal discovery provision that specifies the disclosure that the defense must make to the prosecution regarding witnesses whom the defense intends to call at trial.4 They offer a brief quote from People v. Hajek and Vo (2014) 58 Cal.4th 1144 (Hajek), which considered Penal Code section 1054.3, subdivision (a)(1): “This provision includes the raw results of standardized 4 Penal Code section 1054.3, subdivision (a), provides in pertinent part: “The defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.” 9 psychological and intelligence tests administered by a defense expert upon which the expert intends to rely. (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 184-185.)” (Hajek, supra, at p. 1233.) Without providing any legislative history relevant to statutory interpretation, petitioners argue that the phrase “the results of all tests made” (§ 2032.610, subd. (a)(1)) and the phrase “the results of physical or mental examinations” (Pen. Code, § 1054.3) both encompass raw test data. They attempt to invoke the principle that courts presume that the Legislature intended similar statutory language covering similar subjects to be similarly construed. We first observe that “maxims of statutory construction are not immutable principles that dictate how a statute is to be interpreted. (See In re Joseph B. (1983) 34 Cal.3d 952, 957.)” (Bisno v. Kahn (2014) 225 Cal.App.4th 1087, 1104.) Second, it is a principle of statutory construction that “[w]here . . . legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears. [Citations.]” (Estate of Griswold (2001) 25 Cal.4th 904, 915-916.) This principle does not support petitioners’ argument. The first sentence of former section 2032, subdivision (h), which was substantively continued in section 2032.610, subdivision (a),5 predates the 1994 judicial construction of Penal Code section 1054.3, subdivision (a)(1), in Woods v. Superior Court, supra, 25 Cal.App.4th at pp. 184-185 (Woods), which was cited by Hajak. The Legislature could not have been aware of Woods’ construction when it earlier enacted or amended former section 2032. (See fn. 5, ante.) Furthermore, Penal Code section 1054.3, subdivision (a)(1), concerns “the results of physical or mental 5 “Subdivision (a) of Section 2032.610 continues the first sentence of former Section 2032(h) without substantive change.” (Cal. Law Revision Com. com., 21A West’s Ann. Code of Civ. Proc. (2007 ed.) foll. § 2032.610, p. 436; see e.g. Stats.1993, ch. 219, § 71, p. 1591; Stats. 1986, ch. 1336, § 1, p. 4751.) 10 examinations . . . which the defendant intends to offer in evidence at the trial.” (Italics added.) In this respect, section 2032.610, subdivision (a), and Penal Code section 1054.3, subdivision (a)(1), appear dissimilar. (Cf. Woods, supra, at pp. 184-185 [“Requiring pretrial disclosure of the raw results of standardized psychological and intelligence tests administered and relied upon by an expert the defense intends to call at trial allows access to information necessary to prepare the case, reduces the chance of surprise at trial, furthers the attainment of truth and lessens the risk of a judgment based on incomplete testimony”].) Petitioners have not shown that the Legislature’s intent and purpose with regard to section 2032.610, subdivision (a), support their argument. Petitioners also assert that section 2032.610’s phrase “results of all tests made” constitutes “plain language” that requires Jonnie’s answers to be provided to him, but they offer absolutely no support for that assertion.6 Petitioners’ undeveloped analyses fail to establish that section 2032.610 requires defendants to deliver the written testing materials and Jonnie’s raw answers to the plaintiffs. Consequently, they have not demonstrated in this writ proceeding that the superior court was under a legal duty to order, or that its discretion could be legally exercised only by ordering, such delivery. (See § 1085 [“A writ of mandate may be issued by any court to any inferior tribunal . . . to compel the performance of an act which the law specially enjoins . . . .”]; Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [A writ of mandate will lie where, under the facts, discretion can be exercised in only one way].) 6 “When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word. [Citations.]” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) The word “result” generally refers to the consequence or outcome of something. (See <http://www.oxforddictionaries.com/us/definition/american_english/result>[as of Nov. 19, 2015]; Webster’s New World College Dictionary (4th ed. 2008) p. 1223.) The plain language of the statute does not resolve whether test “results” encompasses the examinee’s raw responses. 11 Moreover, petitioners have not demonstrated there is no “plain, speedy, and adequate remedy, in the ordinary course of the law” available to them (§ 1086). Petitioners bear the burden of showing that they lack such a remedy. (Phelan v. Superior Court in of San Francisco (1950) 35 Cal.2d 363, 366.) The March 2, 2015 order suggests that plaintiffs may request a further order of the court as to the written testing materials used by Dr. Hall and Jonnie’s answers thereto. If plaintiffs did not receive reports satisfying section 2032.610, subdivision (a), pursuant to the court’s March 2, 2015 order, there is a statutory right to bring a motion for an order compelling delivery of reports demanded under Section 2032.610.7 (§ 2032.620, subd. (a) [“If the party at whose instance an examination was made fails to make a timely delivery of the reports demanded under Section 2032.610, the demanding party may move for an order compelling their delivery”].) Finally, there is a right of appeal from a final judgment. No writ relief is warranted concerning the written testing materials used by Dr. Hall and Jonnie’s answers thereto. DISPOSITION Let a peremptory writ of mandate issue, commanding respondent court to vacate its March 2, 2015 order insofar as it authorizes collateral interviews of Jane Roe and John Roe as part of the mental examination of Jonnie Roe. The stay order issued March 12, 2015 is vacated. Petitioners are entitled to recover costs incurred in this writ proceeding. 7 In addition, if defendants designate Dr. Hall as an expert witness, other statutory rights of discovery may apply. (See e.g. §§ 2025.480, 2034.210 et seq., 2034.410.) 12 _________________________________ ELIA, J. WE CONCUR: _______________________________ RUSHING, P. J. _______________________________ WALSH, J.* Roe, a Minor, etc. et al. v. Superior Court H0420608 * Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Filed 12/18/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT JONNIE ROE, a Minor, etc., et al., H042060 (San Benito County Petitioners, Super. Ct. No. CU-14-00017) v. ORDER GRANTING REQUEST FOR PUBLICATION SUPERIOR COURT OF SAN BENITO COUNTY, Respondent; HOLLISTER SCHOOL DISTRICT et al., Real Parties in Interest. THE COURT: The opinion in the above-entitled matter filed on November 19, 2015, was not certified for publication in the Official Reports. Counsel for real parties in interest has requested the opinion be certified for publication. Counsel for petitioner and for California Attorneys of California have requested the opinion be certified for partial publication. It appears that the opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). The court will grant full publication. The opinion is ordered published in the Official Reports. _________________________________________ ELIA, J. __________________________________________ RUSHING, P.J. 14 Trial Court: San Benito County Superior Court Superior Court No.: CU-14-00017 Trial Judge: Honorable Harry J. Tobias Counsel for Petitioners: Alan Charles Dell'Ario JONNIE ROE, a Minor, etc., et al. Alexis Susann McKenna Winer, McKenna & Burritt Counsel for Real Parties in Interest: Eric Shiu HOLLISTER SCHOOL DISTRICT et al., Lynch and Shupe Roe, a Minor, etc. et al. v. Superior Court H042060	{ "pile_set_name": "FreeLaw" }
Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 7-7-1994 Reich v. Chez Robert, Inc. et al. Precedential or Non-Precedential: Docket 93-5619 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Reich v. Chez Robert, Inc. et al." (1994). 1994 Decisions. Paper 76. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/76 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 93-5619 _______________ ROBERT REICH, Secretary of Labor, United States Department of Labor, Appellant v. CHEZ ROBERT, INC., ROBERT SLIWOWSKI, individually and as Owner and President Appellee _______________ On Appeal From the United States District Court for the District of New Jersey (D.C. Civil No. 87-2219) _______________ Submitted Under Third Circuit LAR 34.1(a) May 12, 1994 Before: BECKER AND LEWIS, Circuit Judges and POLLAK, District Judge1. (Filed July 7, 1994) LAURISTON H. LONG WILLIAM J. STONE United States Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 Attorneys for Appellant ROBERT SLIWOWSKI 45 Covington Lane Voorhees, NJ 08043 1 Honorable Louis H. Pollak, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 1 Appellee _______________ OPINION OF THE COURT _______________ Pollak, District Judge. Secretary of Labor Robert Reich ("Secretary") here appeals from a judgment of the United States District Court for the District of New Jersey in an action brought under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. The Secretary contends that the court erred in reducing the statutory liability of defendants -- a restaurant and its owner -- for back wages by improperly taking into account tips earned by employees during the violation period.2 For the reasons set forth below, we agree with the Secretary, and we remand for further proceedings consistent with this opinion. Background: The facts, insofar as relevant for this appeal, are as follows.3 This suit to enforce the Fair Labor Standards Act ("the Act") was commenced in 1987. The defendants are Chez Robert, Inc., an "upscale" restaurant in New Jersey, and its owner Robert Sliwowski. The complaint alleged violations of the minimum wage, overtime, and record-keeping provisions of the 2 Defendants-appellees have not filed a responsive brief in this appeal. We therefore have before us only the brief of appellant, Secretary Reich. 3 The complete factual background and the many facets of the underlying case are amply set forth in the district court's comprehensive opinion, Reich v. Chez Robert, Inc., 821 F.Supp. 967 (D.N.J. 1993). 2 Act. After a bench trial that began in March, 1992, the district court held that the defendants had willfully violated the wage, overtime and record-keeping provisions of the Act. The court awarded both damages and injunctive relief, and found defendants liable for two kinds of damages: (1) "actual damages" -- i.e. unpaid hours, underpaid overtime, and uniform maintenance expenses -- in the amount of $177,809.66, and (2) tip credit remunerations -- i.e. the cumulative amount by which the wages of Chez Robert's employees fell short of the minimum wage -- in the amount of $229,794.19. The total damages came to $407,603.85. The court reduced the award to $305,702.88 to reflect tips earned by employees during the relevant period. The Secretary contends that the district court's decision to discount defendants' liability was erroneous. As framed by the Secretary's brief, the only issue before this court is "whether the district court erred as a matter of law by sua sponte reducing, across the board, the back wage awards to individual employees by 25% from the amounts which the court found otherwise owed to them as a result of defendants' violation of the [Act]." Appellant's Br. at 2. Discussion: The Secretary bases his appeal upon Section 3(m) of the Fair Labor Standards Act, which provides that . . . In determining the wage of a tipped employee, the amount paid such employee by his employer shall be deemed to be increased on account of tips by an amount determined by the employer . . . except that the amount of the increase on account of tips determined by the employer may not exceed the value of tips actually received by the employee. The previous sentence shall not apply with respect to any tipped employee unless (1) such employee has been informed by the employer of the provisions of this subsection, and (2) all tips 3 received by such employee have been retained by the employee . . . 29 U.S.C. § 203 (m). Section 3(m) therefore allows an employer to reduce a tipped employee's wage below the statutory minimum by an amount to be made up in tips, but only if the employer informs the tipped employee that her wage is being decreased under section 3(m)'s tip-credit provision. If the employer cannot show that it has informed employees that tips are being credited against their wages, then no tip credit can be taken and the employer is liable for the full minimum-wage ($3.35/hr in this case). Martin v. Tango's Restaurant, Inc., 969 F.2d 1319, 1322-23 (1st Cir. 1992). At trial, defendants argued, pursuant to section 3(m), that their liability for back wages should be calculated at $2.01/hour, the rate at which Chez Robert's employees were apparently paid. Defendants argued that they were entitled to a tip credit of $1.34/hour for the balance of the $3.35 per hour statutory minimum wage.4 The district court rejected defendants' argument. The court found that defendants had not notified employees of the tip credit as required under the Act, and therefore were not entitled to the offset. Chez Robert, 821 F.Supp. at 977. Using the statutory minimum wage of $3.35/hour, the court calculated defendants' liability for back wages to be $177,809.66 in unpaid wages, underpaid overtime and uniform 4 The minimum wage applicable until March 31, 1990, was $3.35 per hour. The violations by Chez Robert and its owner occurred prior to that date. The current statutory minimum wage, which became effective on March 31, 1991, is $4.35 per-hour. 29 U.S.C. § 206(a)(1). 4 maintenance, plus $229,794.19 in disallowed tip credit deductions, for a total of $407,603.85. Id. at 985. The Secretary does not challenge this initial determination. The Secretary takes issue with what the district court did next. Notwithstanding that the court found defendants not to be entitled to the tip deduction under section 3(m), the court made the following ruling: the Secretary has made no provisions . . . for tips actually received by employees. Certainly no precise amount can be determined. . . . Chez Robert is an expensive "upscale" restaurant and certainly capable of generating income that would have supplemented employees' incomes to a great degree. Since the Secretary did not account for tips actually received, the Court must apply a discount rate to the damages owed to each employee. . . . The Court has adjusted Defendants' liability to account for this inflating factor. The $177,809.66 in actual damages and the $229,794.19 in tip credit remunerations will be reduced by 25%. Therefore, after discounting, Defendants' [sic] are obligated to pay total damages, actual and tip credit, in the amount of $305,702.88. Id. at 985. Appellant argues that the above ruling was erroneous because it essentially gives defendants a tip credit which the court had already determined they were statutorily barred from claiming. The pertinent cases support the Secretary's argument. In Tango's Restaurant, the First Circuit held that "Congress chose to allow employers a partial tip credit if, but only if, certain conditions are met." 969 F.2d at 1322. The notice requirement is a firm one: It may at first seem odd to award back pay against an employer, doubled by liquidated damages, where the employee has actually received and retained base wages and tips that together amply satisfy the minimum wage requirements. Yet Congress has in section 3(m) 5 expressly required notice as a condition of the tip credit and the courts have enforced the requirement. . . . If the penalty for omitting notice appears harsh, it is also true that notice is not difficult for the employer to provide. Id. at 1323 (internal citations omitted). In this case, the district court did exactly what Tango's Restaurant instructs against doing: that is, alleviate the harsh results of the notice requirement by reducing damages out of an equitable sense that some offset for tips should be allowed. 821 F.Supp. at 985. If such a ruling were permissible, the district courts would effectively have discretion to waive the notice requirement in the interests of perceived fairness to the employer. While that is perhaps not in itself an undesirable power for the district courts to have, it is not, as the First Circuit tells us, what the statute permits. The First Circuit's view is shared by other courts that have addressed the section 3(m) notice requirement. In Richard v. Marriott Corp., 549 F.2d 303 (4th Cir. 1977), the Fourth Circuit held that the district court erred when it allowed a partial tip credit for Marriott "out of a vague sense of fairness and a feeling that $5.43 and up per hour is enough for a wait[e]r[ess]", when it was established that "Marriott never informed its employees of the provisions of Section 3(m) of the [Act]." Id. at 305. The Fifth Circuit has likewise held that where it was agreed that a restaurant did not inform waiters that a tip-credit was being deducted from their wages, "the district court properly found that the employees were entitled to the full minimum wage 6 for every hour" at issue. Barcellona v. Tiffany English Pub, 597 F.2d 464, 467-68 (5th Cir. 1979); see also Marshall v. Gerwill, inc., 495 F.Supp. 744, 753 (D.Md. 1980) (without section 3(m) notice, "retaining of tips by the [employees] cannot offset the failure to pay the applicable minimum wage."); Bonham v. Copper Cellar Corp., 476 F.Supp. 98, 101-02 (E.D.Tenn. 1979) (barring tip credit for employer who failed to explain provisions of section 3(m) to employees, even though employer acted in good faith). We have not previously had occasion to address whether the notice requirement of section 3(m) may be waived by the district court when there is evidence of actual tips received. Now faced with that question, we agree with the interpretation of the statute reached by the First Circuit in Tango's Restaurant. When the employer has not notified employees that their wages are being reduced pursuant to the Act's tip-credit provision, the district court may not equitably reduce liability for back wages to account for tips actually received. Accordingly, we find that the district court erred in reducing defendants' liability from $407,603.85 to $305,702.88. The judgment of the district court is vacated and the case is remanded to the district court for proceedings consistent with this opinion. 7	{ "pile_set_name": "FreeLaw" }
91 F.3d 149 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.James Edward WRIGHT, Jr., Appellant/Cross-Appellee,v.CALION LUMBER COMPANY, Appellee/Cross-Appellant. Nos. 95-3596, 95-3722. United States Court of Appeals, Eighth Circuit. Submitted: July 8, 1996Filed: July 9, 1996 Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. PER CURIAM. 1 James Edward Wright, Jr., an African-American, sued his former employer, Calion Lumber Company, alleging that Calion discriminated against him on the basis of his race by subjecting him to adverse employment conditions after learning that Wright was married to a Caucasian woman. Following a three-day trial, an eight-member jury delivered a verdict in favor of Calion, and the district court1 entered judgment dismissing the case. Wright appeals, and we affirm. 2 Wright's first argument--that his appointed attorney rendered inadequate representation--does not entitle him to relief in this appeal. See Glick v. Henderson, 855 F.2d 536, 541 (8th Cir.1988) (litigant in civil proceeding has no constitutional or statutory right to appointment and effective assistance of attorney). 3 Wright next argues that only one of the jurors was a member of a minority group. Significantly, Wright does not argue that the jury venire panel was compiled in an unconstitutional or illegal manner, or that Calion exercised peremptory challenges to strike jurors from the panel on the basis of their race. Cf. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 616, 628-31 (1991); Floyd v. Garrison, 996 F.2d 947, 949 (8th Cir.1993). This claim also fails. 4 Finally, Wright complains that all of the witnesses testified he was the victim of discrimination, the witnesses for Calion were biased, and the jury ignored testimony that his supervisor used the word "nigger" on the job site. However, this is not a sufficient basis for overturning an adverse jury verdict. 5 Accordingly, we affirm. We also dismiss Calion's cross-appeal at its request. 1 The HONORABLE WILLIAM R. WILSON, JR., United States District Judge for the Eastern District of Arkansas	{ "pile_set_name": "FreeLaw" }
442 B.R. 97 (2010) In re Louis J. DOMIANO, Jr., Debra Domiano a/k/a Ann D. Domiano, Debtors. Fidelity Deposit & Discount Bank, Movant v. Louis J. Domiano, Jr., Debra Domiano a/k/a Ann D. Domiano, Respondents. No. 5-08-bk-51563 RNO. United States Bankruptcy Court, M.D. Pennsylvania. December 28, 2010. 100 Ronald V. Santora, Bresset and Santora, Forty Fort, PA, Stephen G. Bresset, Bresset & Santora, LLC, Honesdale, PA, for Debtor. Anne K. Fiorenza, U.S. Department of Justice, Office of the United States Trustee, 101 Harrisburg, PA, for Asst. U.S. Trustee. Opinion[1] ROBERT N. OPEL, II, Bankruptcy Judge. This is an individual Chapter 11 proceeding filed by a husband and wife. Two Motions filed by a secured creditor are presently pending. First, a Motion to Convert to Chapter 7 and second, a Motion for Accounting regarding some of the secured creditor's collateral. For the reasons stated herein, I will convert this matter to a case under Chapter 7 of the Bankruptcy Code. Further, I will dismiss the Motion for Accounting, without prejudice to the secured creditor seeking subsequent relief from the Chapter 7 trustee or another authorized representative of the bankruptcy estate. I. Jurisdiction This Court has jurisdiction over this core proceeding pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(A). II. Background This Chapter 11 proceeding was commenced by a voluntary petition filed on June 2, 2008, by Louis J. Domiano, Jr. ("L. Domiano") and his wife, Debra Domiano, a/k/a, Ann D. Domiano ("D. Domiano"). L. Domiano and D. Domiano are sometimes hereinafter jointly referred to as the "Debtors". On November 8, 2010, several Motions were filed by Fidelity Deposit & Discount Bank ("Fidelity Bank") against the Debtors. First, at Docket No. 468, a motion docketed as Second Motion to Convert Case to Chapter 7 or For Appointment of a Chapter 11 Receiver ("Conversion Motion"). Second, at Docket No. 469, a motion docketed as Fourth Motion for Contempt Citation and Damages and to Compel Auctioning of Remaining Vehicles and Accounting of Proceeds ("Contempt Motion"). Third, at Docket No. 470, a motion docketed as Motion to Compel Accounting or Production of All 51 Vehicles Secured to Fidelity Deposit & Discount Bank, or For Criminal Referral if All 51 Vehicles are Not Accounted For ("Accounting Motion"). Community Bank & Trust Company joined in the Conversion Motion at Docket No. 486. PNC Bank, Successor to National City Bank, joined in the joined Conversion Motion at Docket No. 493. A hearing was commenced on all three Motions on December 8, 2010. By agreement of the parties, there was a consolidated record concerning all three Motions. During the presentation of its case, Fidelity Bank withdrew, without objection, the Contempt Motion. Testimony was completed on Friday, December 10, 2010, and I took under advisement the Conversion Motion and the Accounting Motion. The Debtors filed a Memorandum of Law on December 7, 2010, to Docket No. 494. Fidelity Bank filed its Reply Brief on December 15, 2010, to Docket No. 501. The Debtors filed a Supplemental Memorandum of Law on December 16, 2010, to Docket No. 503. Fidelity Bank filed its Brief in Reply to Debtors' Supplemental Memorandum on December 22, 2010, to Docket No. 510. It is noted that at the time of the June, 2008, Chapter 11 filing, the Debtors had two principal business sources of income. First, their individual ownership of three commercial real properties and rental income derived therefrom. Also, L. Domiano 102 is the sole shareholder of a corporation, 1950 Wyoming Avenue Associates, Inc., which corporation is the title owner of a commercial property in Exeter, Pennsylvania. The corporation, 1950 Wyoming Avenue Associates, Inc., is the Chapter 11 debtor in two open cases filed in this Court to Case Nos. 5-08-bk-51652-RNO and 5-10-bk-04788-RNO. The Debtors' secondary primary source of business income at the time of the filing was rentals received from certain motor vehicles. Two witnesses testified during the consolidated hearing on the Conversion Motion and the Accounting Motion. L. Domiano testified as of cross examination as part of Fidelity Bank's case. Fidelity Bank also offered testimony by Robert Siarniak, Assistant Vice President and Collections Officer, whose general duties include overseeing various aspects of bank loans in collection. L. Domiano also testified as part of the Debtors' case in chief. No expert testimony was offered either by Fidelity Bank or the Debtors. Fidelity Bank offered twenty-five exhibits into evidence; twenty-one of those exhibits were admitted into evidence. The Debtors marked two exhibits for identification but did not move for the admission of either exhibit into evidence. On December 8, 2010, the Debtors filed a Motion to Dismiss the subject Chapter 11; the Motion will be noticed to creditors pursuant to Federal Rule of Bankruptcy Procedure 2002. III. Discussion A. Defenses of Estoppel, Waiver, Collateral Estoppel and Res Judicata The Debtors maintain that the Conversion Motion and the Accounting Motion are precluded as a matter of law. They filed a Memorandum of Law on December 7, 2010, to that effect. The Debtors orally moved to dismiss the two Motions at the close of Fidelity Bank's case. Page 10 of the Debtors' pre-hearing Memorandum of Law argues that prior stipulations between Fidelity Bank and the Debtors preclude the subject action. The Debtors cite Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) in support of their position. The Taylor case primarily addresses non-party claim preclusionthe Supreme Court of the United States considered the "virtual representation" doctrine as adopted by several circuits. The doctrine holds that non-parties can be bound by a judgment, even though they were not parties to the prior litigation. In Taylor, the D.C. Circuit Court held that the appellant was bound by a judgment because his interests had been adequately represented by a party to the proceeding which resulted in the judgment. The Supreme Court found that the necessary predicates to apply the doctrine of "virtual representation" had not been met and, therefore, vacated the judgment of the United States Court of Appeals for the District of Columbia and remanded. There is general language in Taylor which militates against the Debtors' arguments for claim or issue preclusion herein. The Supreme Court noted: The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as "res judicata". Under the doctrine of claim preclusion, a final judgment forecloses "successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit." New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Issue preclusion, in contrast, bars "successive litigation of an issue of fact or law actually litigated and resolved in a valid 103 court determination essential to the prior judgment," even if the issue recurs in the context of a different claim. Id., at 748-749, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968. By "preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate," these two doctrines protect against "the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 2171, 171 L.Ed.2d 155 (U.S. 2008). There is nothing in this record which evidences a final judgment between Fidelity Bank and the Debtors concerning either the Conversion Motion or the Accounting Motion. Similarly, In re Deangelis, 2010 WL 1509111 (Bankr.M.D.Pa. 2010), cited at page 11 in the Debtors' Memorandum, is inapposite. In Deangelis, the Bankruptcy Court found that a prior default judgment did not support the application of collateral estoppel because the matter had not been actually litigated. Page 11 of the Debtors' Memorandum invoked the Rooker Feldman doctrine. That doctrine holds that no inferior federal courts, including a bankruptcy court, should consider a federal claim which is inextricably intertwined with the final judgment of a state court. In re Knapper, 407 F.3d 573, 581 (3d Cir.2005). I consider this argument to have been abandoned since no evidence was presented concerning the existence of a state court judgment between the Debtors and Fidelity Bank regarding the subject matter of these proceedings. The crux of the Debtors' preclusion and waiver arguments relate to a stipulation entered into between the Debtors and Fidelity Bank. The stipulation, which bears signatures dated December 6, 2009, was approved by Court Order of May 20, 2010, at Docket No. 428 ("Settlement Stipulation"). I believe the language of the Settlement Stipulation shows that it was intended to settle one pending matter between the Debtors and Fidelity Bank. To interpret the Settlement Stipulation, I generally consider principles of contract law. The Pennsylvania courts have set forth several canons of contract construction. In Bobali Corp. v. Tampa Co., 235 Pa.Super. 1, 5-6, 340 A.2d 485, 488 (Pa.Super.1975), the court noted: In construing the terms of a contract we are guided by well-defined and fundamental canons of construction. Our Supreme Court has adopted the following principles: `. . . `The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles.' (Citations omitted.) `Contracts must receive a reasonable interpretation, according to the intention of the parties at the time of executing them, if that intention can be ascertained from the language. (Citing cases.)'' Percy A. Brown & Co. v. Raub, 357 Pa. 271 at 287, 54 A.2d 35, 43 (1947) (internal citations omitted). Also see Unit Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). Moreover, in ascertaining intent effect must be given to all the provisions of the written contract. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973). `In a written contract the intent of the parties is the writing itself and when the words are clear and unambiguous the intent is to be determined only 104 from the express language of the agreement.' R.F. Felte, Inc. v. White, supra at 143, 302 A.2d at 351; East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 205 A.2d 865 (1965). A corollary rule is that `(t)he parties (have) the right to make their own contract, and it is not the function of this Court to rewrite it, or to give it a construction in conflict with the accepted and plain meaning of the language used.' Hagarty v. Wm. Akers, Jr., Co., Inc., 342 Pa. 236 at 239, 20 A.2d 317, 319 (1941); R.F. Felte, Inc. v. White, supra. (Emphasis added). Generally, a settlement agreement is a contract and is subject to the rules of contract interpretation. Pennwalt Corp. v. Plough, Inc., 676 F.2d 77, 79 (3d Cir.1982); In re Cendant Corp. Prides Litigation, 233 F.3d 188, 193 (3d Cir.2000) (basic contract principles apply to settlement agreements). The Settlement Stipulation was introduced into evidence as Fidelity Exhibit 4. Page 4 of the Settlement Stipulation specifically references a Motion to Compel Auctioning of Vehicles or For Allowance of Administrative Claim and for Third Contempt of Court Citation ("Motion for Auction"). The final wherefore on page 5 of the Settlement Stipulation provides: The Debtors and the Bank ("Parties") desire to amicably settle the Motion for Auction, under and in accordance with the following terms: . . . Paragraph 6 of the Settlement Stipulation provides that in the event the stipulation was approved, Fidelity Bank would withdraw its Motion for Auction and would not renew prosecution of the Motion ". . . unless there is an uncured default of this Stipulation as set forth below." I find that the language of the Settlement Stipulation manifests an intention by the parties to resolve one aspect of their ongoing differences. Specifically, the Settlement Stipulation resolved the Motion for Auction. I recognize that the Settlement Stipulation is one of two stipulations which have been entered into between the Debtors and Fidelity Bank. In any event, I conclude that the Settlement Stipulation did not preclude Fidelity Bank from bringing either the Conversion Motion or the Accounting Motion. The Debtors' Motion to Dismiss the Conversion Motion is denied. B. Conversion Motion 11 U.S.C. § 1112(b)(1)[2]: Except as provided in paragraph (2) of this subsection, subsection (c) of this section, and section 1104(a)(3), on request of a party in interest, and after notice and a hearing, absent unusual circumstances specifically identified by the court that establish that the requested conversion or dismissal is not in the best interests of creditors and the estate, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, if the movant establishes cause. The language in the statute was amended by Congress in 2005 as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005) ("BAPCPA"). The amended statutory language limits the court's discretion to refuse to dismiss or convert a Chapter 11 case once 105 "cause" has been shown. In re Broad Creek Edgewater, LP, 371 B.R. 752, 759 (Bankr.D.S.C.2007); In re Gateway Access Solutions, Inc., 374 B.R. 556, 560 (Bankr. M.D.Pa.2007). Section 1112(b) lists sixteen illustrative examples of what constitutes "cause" for conversion or dismissal of a Chapter 11 proceeding. The statutory examples of cause are illustrative and non-exclusive. In re 3 Ram, Inc., 343 B.R. 113, 118 (Bankr.E.D.Pa.2006); In re Ramreddy, Inc., 440 B.R. 103, 2009 WL 3763988, 5 (Bankr.E.D.Pa.2009); In re BH S & B Holdings, LLC, 439 B.R. 342, 346 (Bankr.S.D.N.Y.2010). C. The Movant Has Established Cause for Conversion 1. Gross Mismanagement of the Estate A debtor-in-possession is vested with significant powers under the provisions of the Bankruptcy Code. Powers such asthe automatic stay, the exclusive right to propose a plan and the discharge of debts. In re SGL Carbon Corp., 200 F.3d 154, 165 (3d Cir.1999). As is often the case, those powers come with concomitant responsibilities. Significantly, a debtor-in-possession owes a fiduciary duty to its creditors. In re G-I Holdings, Inc., 385 F.3d 313, 319 (3d Cir.2004). Further, a debtor-in-possession has a duty to keep the court and its creditors informed about the status and condition of its business. Petit v. New England Mortg. Services, Inc., 182 B.R. 64, 69 (D.Me.1995); In re Gateway Access Solutions, Inc., supra at 565. A review of the Monthly Operating Reports ("MORs") filed during the pendency of this case raises serious concerns about whether the Debtors have met their fiduciary responsibilities. It has been noted that: [Monthly operating reports] are the life blood of Chapter 11, enabling creditors to keep tabs on the debtor's post-petition operations. In re Kholyavka, 2008 WL 3887653, 4 (Bankr.E.D.Pa.2008). Monthly operating reports are in a format designed to allow the U.S. Trustee and creditors to monitor business operations during Chapter 11 and to avoid continued business operations that generate losses and administrative insolvency. In re Javier Estrada, Inc., 2010 WL 817406, 2 (Bankr.S.D.Tex.2010). At the time the hearing record was closed, the Debtors had filed MORs through October, 2010. My review of the filed MORs raises concern that the reports have been completed in a cursory, if not casual, fashion. Failure of a debtor to properly report income and expenses constitutes evidence of "gross mismanagement" under § 1112(b)(4)(B). In re Halal 4 U LLC, 2010 WL 3810860, 4 (Bankr.S.D.N.Y. 2010). Gross mismanagement is an enumerated cause for conversion or dismissal of a Chapter 11 proceeding. Gateway Access Solutions, Inc., 374 B.R. 556, 566 (Bankr.M.D.Pa.2007). The MORs filed in this case generally contain some handwritten entries and are signed by the Debtors. Significant portions of the MORs, such as the pages headed Status of Postpetition Taxes and Statement of Operations, were typically left blank. It is noteworthy that the Debtors have not employed an accountant in this Chapter 11 proceeding. Attached to each MOR reviewed is what appears to be a printout of activity on a Wachovia Bank checking account. L. Domiano testified that this 106 account "encompassed multiple businesses". Hr'g Tr. 25, Dec. 9, 2010. He also testified that he had one business bank account and one personal bank account. Hr'g Tr. 26, Dec. 9, 2010. The U.S. Trustee is charged to ensure that required MORs are timely and properly filed. 28 U.S.C. § 586(a)(3)(D); In re Mullock, 404 B.R. 800, 809 (Bankr. E.D.Pa.2009) (the form and content of the monthly operating reports are controlled by the U.S. Trustee). L. Domiano testified that he had discussed the Debtors' filed MORs with a Mr. Bender, an employee of the District's U.S. Trustee's Office. L. Domiano indicated that early on in the Chapter 11 case, Mr. Bender had noted some deficiencies on the MORs; L. Domiano implied that these deficiencies had subsequently been corrected. No one from the U.S. Trustee's Office testified during the consolidated hearing. I note that Docket No. 97 is a Motion to Dismiss filed by the U.S. Trustee on September 9, 2008. The Motion alleged that the Debtors had failed to timely file certain MORs and had failed to provide a specimen check for a new Debtor-in-Possession operating account. The U.S. Trustee's Motion to Dismiss was settled and on October 31, 2008, an Order was entered requiring the Debtors to file revised and compliant MORs within fifteen days. The Order further provided that if the revised MORs were not filed as required, upon certification of default, the Chapter 11 proceeding would be dismissed. A review of the docket does not show any subsequent filings by the U.S. Trustee concerning the Debtors' MORs. I find that the MORs have been completed in such a summary fashion that creditors are left to guess as to much of the Debtors' operations and financial results. What are the sources of the deposits into the Wachovia account? Are each of the Debtors' various businesses earning a monthly net profit or loss? The MORs have not been completed in a fashion consistent with the Debtors' fiduciary duties. L. Domiano admitted that in August, 2010, he took the loan value on some personal insurance policies and deposited the funds into the account of the Debtor-in-Possession, 1950 Wyoming Avenue Associates, Inc. He offered as an explanation: "So, it was deposited because the only checking account that I used is 1950 Wyoming Avenue." Hr'g Tr. 16, Dec. 9, 2010. There is no evidence that the Debtors or 1950 Wyoming Avenue Associates, Inc. sought bankruptcy court approval for this transaction. I find this to be evidence of gross mismanagement. It is also troubling that many of the MORs include a Schedule of Cash Receipts and Disbursementswith a handwritten subheading "1950 Wyoming Ave. Associates, Inc.". There are handwritten figures which apparently show certain items of income and expense for 1950 Wyoming Avenue Associates, Inc.a corporate Debtor-in-Possession in two other bankruptcy cases. However, another page in the same MORs headed Schedule of Cash Receipts and Disbursements bears the Debtors' typed names and was routinely filed in blank. Neither receipts nor disbursements are reported on that page for the Debtors. I find there is no obvious way for a creditor to discern from the MORs what amount of monthly net income the Debtors are ostensibly earning and reporting. The September, 2010, MOR contains a page headed "Domiano CheckbookSeptember 2010". The entries for September 7, 2010, include "Misc. Deposit $300.00" and "Misc. Withdrawal $300.00"; no further information is provided. An MOR filed by 1950 Wyoming Avenue Associates, Inc., in Case No. 5-10-bk-04788-RNO, 107 was admitted into evidence. A page headed "Check Disbursements August 2010" shows an August 23, 2010, cashier's check for $13,700.00 in legal fees to Bresset & Santora. Attorneys Bresset and Santora represent the Debtors in their individual Chapter 11. I find that this payment evidences a disregard for corporate and bankruptcy requirements and is additional evidence of gross mismanagement. The blurring of the financial lines between 1950 Wyoming Avenue Associates, Inc. and the Debtors' personal finances is particularly disturbing because of the fiduciary responsibilities of each of the respective Debtors-in-Possession. The Debtors' MOR for July, 2010, includes a page headed "Domiano CheckbookJuly 2010". It includes a payment of $1,500.00 to Frank Santomauro, Esquire. Mr. Santomauro is counsel for Debtor-in-Possession, 1950 Wyoming Avenue Associates, Inc., in Case No. 5-10-bk-04788-RNO. L. Domiano testified that Attorney Santomauro ". . . had taken care of something personally for myself and Mrs. Domiano." Hr'g Tr. 52, Dec. 9, 2010. The docket in the Debtors' case does not reflect court approval of the payment of any professional fees to Attorney Santomauro. Section 330 generally requires court approval before the payment of such compensation. I find this payment to be further evidence of gross mismanagement. Cause has been shown to convert this case due to gross mismanagement of the estate. D. The Debtors Have Not Met Their Burden to Identify "Unusual Circumstances" Such That It Would Be in the Best Interests of Creditors Not to Convert the Case From Chapter 11 Section 1112(b) utilizes a burden shifting approach in Chapter 11 cases where conversion or dismissal has been requested. Fidelity Bank has shown cause for conversion or dismissal. The burden now shifts to the Debtors to show "unusual circumstances" that establish such relief is not in the best interests of creditors and the estate. § 1112(b)(2); DCNC North Carolina I, L.L.C. v. Wachovia Bank, N.A., 2009 WL 3209728, 4 (E.D.Pa.2009); In re Ramreddy, Inc., 440 B.R. 103, 108 (Bankr.E.D.Pa.2009). Generally, unusual circumstances require a showing that there is a reasonable likelihood that a Chapter 11 plan will be confirmed within a reasonable period of time. In re Prisco Properties, LLC, 2010 WL 4412095, 5 (Bankr.D.N.J.2010); In re 15375 Memorial Corp., 2008 WL 2698678, 1 (D.Del.2007); In re KC's Pub, LLC, 428 B.R. 612, 615 (Bankr.M.D.Pa.2010). As noted above, the Debtors have not yet filed a plan or disclosure statementmore than two and one half years into the case. L. Domiano testified that he had reviewed a draft disclosure statement and plan. Hr'g Tr. 32, Dec. 10, 2010. No draft documents were offered into evidence. L. Domiano testified that creditors would fair better under the draft plan than through a conversion and Chapter 7 liquidation. Hr'g Tr. 32, Dec. 10, 2010. Again, no appraisals, valuations, projections, claim estimates, or other evidence was offered to support L. Domiano's opinion. This lack of evidentiary support, coupled with L. Domiano's self interest, lend little credence to his opinion. L. Domiano based much of his hopes for a successful reorganization on two potentialities. First, a litigation effort in state court. Second, a possible sale of the commercial real property owned by 1950 Wyoming Avenue Associates, Inc. I will address these matters in turn. 108 L. Domiano gave brief and rather cryptic testimony regarding a contingent claim which the Debtors purportedly have in some unspecified state court litigation. Schedule B.21 lists "Contingent claim from settlement proceeds (terms under seal by Order of Court)". Schedule B indicates that the claim is held by the Debtors jointly and the value is scheduled as "unknown". At the hearing, L. Domiano testified that: The contingency has become a reality in the last 30 days. So, it is no longer a contingency, it now becomes part of my plan when I receive the Hr'g Tr. 15, Dec. 10, 2010. Each time counsel for Fidelity Bank sought to interrogate L. Domiano about the particulars of the contingent litigation claim, objections were interposed. Debtors' counsel maintained that the records in the state court litigation were sealed. No documentary evidence concerning the contingent litigation claim was offeredno pleading, no docket, not even an order sealing the record. No particulars were offered concerning the amount of any potential recovery by the Debtors on this claim. I cannot find that the bare existence of an unspecified contingent litigation claim provides a basis for the Debtors to show "unusual circumstances" pursuant to § 1112(b)(2). A debtor's mere hope of prevailing on potential litigation claims is not a sufficient basis to defeat a showing of cause to convert. In re BH S & B Holdings, LLC, 439 B.R. 342, 350 (Bankr.S.D.N.Y.2010); In re FRGR Managing Member, LLC, 419 B.R. 576, 583 (Bankr.S.D.N.Y.2009). L. Domiano also based much of his hope for a reorganization upon the sale of the property owned by 1950 Wyoming Avenue Associates, Inc. He maintained that the approval of the development of a Walmart store for an adjacent property increased the value of the corporate property. Again, no appraisals or expert testimony were offered into evidence. L. Domiano testified that the sole piece of real estate owned by 1950 Wyoming Avenue Associates, Inc. has been listed for sale on two occasions for a total of approximately six months. No listing agreement was offered nor did any realtor testify. The confirmed plan in the corporate case filed to 5-08-bk-51652-RNO generally provides for the sale or refinancing of the corporate property within one year; the amended plan was confirmed on June 10, 2009. It should be noted that 1950 Wyoming Avenue Associates, Inc. filed another Chapter 11 proceeding on June 9, 2010 to Case No. 5-10-bk-4788-RNO. The corporate Debtor entered into a stipulation in that case with the first mortgagee, Community Bank and Trust Company, at Docket No. 59. In that stipulation, the mortgagee agreed, subject to certain terms, to forbear exercising its rights and remedies under its mortgage until August 5, 2011. No written purchase offers or agreements of sale covering the property owned by 1950 Wyoming Avenue Associates, Inc. were offered into evidence. Further, even if a buyer for the 1950 Wyoming Avenue Associates, Inc. property were found, what would it mean to the success of this case? What amount would a sale likely bring? What amounts would be needed to satisfy corporate obligations, including, without limitation, any liens or tax obligations? What amount, if any, would the Debtors likely net from a sale of the corporate real estate? The Court is left to guess as to the answer to these important questions. Again, no expert testimony, projections, or other documentary evidence was offered by the Debtors. The likelihood of a successful reorganization within a reasonable period 109 of time must be shown to be more than a debtor's hopes or best case scenario. In re Wahlie, 417 B.R. 8, 12 (Bankr.N.D.Oh. 2009) (courts require a debtor to do more than manifest unsubstantiated hopes for a successful reorganization). A court is obligated to carefully scrutinize a plan to determine whether it offers a reasonable prospect of success and is workable. In re Prisco Properties, LLC, 2010 WL 4412095, 6 (Bankr.D.N.J.2010). Further, the Debtors' December 8, 2010, voluntary motion to dismiss belies L. Domiano's stated belief in the likelihood of a successful reorganization. I conclude that the Debtors have not met their burden to show unusual circumstances why the Chapter 11 case should not be dismissed or converted. E. The Case Should Be Converted Rather Than Dismissed I have found that Fidelity Bank has established cause under § 1112(b)(1). Further, I have found that the Debtors have not established unusual circumstances under § 1112(b)(2). The Bankruptcy Code next tasks me to either: . . . convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, . . . Section 1112(b)(1) (emphasis added). The bankruptcy court may use its discretion in deciding whether dismissal or conversion is appropriate given the circumstances of the case. In re Kholyavka, 2008 WL 3887653, 5 (Bankr.E.D.Pa.2008); In re Johnson, 2008 WL 696917, 7 (Bankr.E.D.Pa.2008). I recognize that the extent of the Debtors' real property assets have diminished during the pendency of this Chapter 11. There may not, in fact, be any equity for liquidation and distribution to unsecured creditors. However, the lack of credible valuation testimony, coupled with the Debtors' incomplete financial reporting, leave many unanswered questions as to the results of a hypothetical liquidation. Further, based upon the record presented, I cannot evaluate the Debtors' contingent litigation claim. These factors favor conversion and the appointment of a Chapter 7 trustee. A trustee can expeditiously evaluate the estate, liquidate any non-exempt and unencumbered assets and, hopefully, make a distribution to creditors. I find that allowing for the potential realization of a distribution is in the best interests of creditors. A second factor counsels conversion rather than dismissal in this case. I need not repeat the noted deficiencies in and questions raised by the Debtors' MORs and their mismanagement. I believe the Debtors' conduct, pre- and post-petition, should be reviewed by a disinterested professional. I find that such a review by a Chapter 7 bankruptcy trustee is in the best interests of creditors. Schedule F filed herein includes unsecured non-priority claims totaling $482,805.09. Schedule E includes unsecured priority claims totaling $95,989.48. Significant Chapter 11 administrative expense claims have been incurred during the pendency of this case. The Chapter 11 administrative claims will be subordinate to Chapter 7 administrative claims if the case is converted to Chapter 7. § 726(b). The significant amount of the unsecured claims also favors conversion over dismissal. I will order conversion of this case to a case under Chapter 7 of the Bankruptcy Code. *110 The Conversion Motion alternatively requests the appointment of a receiver. There is, of course, no provision for the appointment of a receiver in Chapter 11. The Court may appoint a Chapter 11 trustee or examiner pursuant to the provisions of § 1104. I will dismiss as moot the portion of the Conversion Motion which sought the appointment of a receiver. F. Accounting Motion The Accounting Motion is a renewed effort by Fidelity Bank to obtain information concerning fifty-one vehicles which were part of the collateral for the Bank's loans to the Debtors. L. Domiano testified that approximately thirty of the vehicles were sold during these proceedings. There was conflicting testimony regarding whether or not Fidelity Bank had consented to all of the vehicle sales. I employ the doctrine of judicial restraint in considering the Accounting Motion. The "cardinal principle of judicial restraint" is that "if it is not necessary to decide more, it is necessary not to decide more." PDK Laboratories, Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (C.A.D.C.2004) (Roberts, J., concurring in part and concurring in judgment); Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 2641-42, 168 L.Ed.2d 290 (U.S.2007) (Justice Alito concurrence). Principles of judicial restraint dictate that if resolution of an issue effectively disposes of a case, we should resolve the case on that basis without reaching any other issues that might be presented. Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir.1989). Under § 521(a)(4), the Debtors are required to surrender their books and records to the Chapter 7 bankruptcy trustee. Fidelity Bank may be able to obtain the information it seeks from the trustee, either voluntarily or by subsequent motion. I find that it is not necessary to decide the Accounting Motion at this stage and will dismiss it, without prejudice to Fidelity Bank's right to seek similar relief from the Chapter 7 trustee or any other authorized representative of the bankruptcy estate. IV. Conclusion An Order will be entered consistent with this Opinion denying the Debtors' Motion to Dismiss the Conversion Motion, granting Fidelity Bank's Conversion Motion and dismissing the Accounting Motion without prejudice. NOTES [1] Drafted with the assistance of Ryan B. White, Esquire, Law Clerk. [2] Unless otherwise noted, all future statutory references are to the Bankruptcy Code, 11 U.S.C. § 101, et seq., as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 37 ("BAPCPA").	{ "pile_set_name": "FreeLaw" }
87 U.S. 189 (____) 20 Wall. 189 PAHLMAN v. THE COLLECTOR. Supreme Court of United States. 194 Mr. W.B. Scales, for the plaintiff in error. Mr. G.H. Williams, Attorney-General, and Mr. S.F. Phillips, Solicitor-General, contra. 196 197 Mr. Justice STRONG delivered the opinion of the court. The question is whether, by the act of Congress under consideration, the assessor and his assistant, in estimating the true producing capacity of a distillery, are empowered to fix, as the true fermenting period, any other than that which the distiller in his notice to the assessor, required by the sixth section, has declared he would use for fermentation, and which he actually did use. That the producing capacity of a distillery is conclusively determined by the survey and estimate made under the tenth section of the act (that survey, however, being subject to revision by the Commissioner of Internal Revenue), was ruled in Collector v. Beggs.[] In that case we said "the survey and estimate of producing capacity made under the tenth section were conclusive while they remained, though subject to revision under the direction of the Commissioner of Internal Revenue. And the extent of liability to taxation was, by the act of Congress, directed to be measured, not by the actual product of spirits, but by what should have been the product of the materials used according to the estimate made under the tenth section." And this is very plainly the intention of the law, for by that section, the only one which expressly provides for the ascertainment of the producing capacity, it was made the duty of the assessor, with the aid of some competent and skilful person to be designated by the Commissioner of Internal Revenue, to make survey of each distillery registered, or intended to be registered, for the production of spirits in his district, not only to estimate, but to determine its producing capacity. Of this estimate and determination the assessor and his assistant are required to make a written report in triplicate, signed by them, one original of which is to be furnished to the distiller, one retained by the assessor, and the third is to be 198 transmitted to the Commissioner of Internal Revenue. It is also provided that if the commissioner shall at any time be satisfied that such report of the capacity of a distillery is in any respect incorrect, or needs revision, he may direct the assessor to make another survey. Thus a measure of taxation is fixed, and the distiller is notified of it before he commences distilling. All this leaves no doubt that the reported survey was intended by Congress to be conclusive until corrected by direction of the commissioner. But while this is not denied by the plaintiffs in error as a general proposition, it is insisted that in estimating and determining the producing capacity of the distillery, the assessor must be controlled by the notice which the distiller is required to give him by the sixth section of the act, and must base his calculations upon the period of fermentation fixed in that notice. It is said he has no power to adopt any other period of fermentation, even though ordered to do so by the commissioner, and, if he does, that his estimate and determination are not conclusive. In this objection we cannot concur. It is founded, we think, upon a misapprehension of the statute. The sixth section requires every person engaged in, or intending to be engaged in, the business of a distiller, or rectifier, to give notice in writing to the assessor of the district within which he proposes to carry on the business, stating therein his name, his associates, if any, and his proposed place of business. If he be a distiller, he is required to state in his notice the kind of stills and the cubic contents thereof, the number and kind of boilers, the number of mash-tubs and fermenting-tubs, and the cubic contents of each tub, the number of receiving cisterns and the cubic contents of each cistern, together with a particular description of the lot or tract of land on which the distillery is situated, with the size and description of the buildings thereon, and of what material constructed. The distiller is also required to state in his notice the number of hours in which he will ferment each tub of mash or beer, and the estimated quantity of distilled spirits which the apparatus is capable of distilling every twenty-four hours. 199 The object of these requirements is too plain to be misunderstood. Clearly it is not to enable the distiller to determine for himself the producing capacity of his distillery, and thereby partially fix the extent of his liability to taxation. It is to furnish protection against frauds, and possibly to assist in the ascertainment of the quantity of spirits actually distilled. If intended at all to bear upon the estimate of the producing capacity of the distillery, it can only be regarded as suggestive, not as controlling. It is after this notice has been given that the assessor and his skilled assistant are required, as by the tenth section of the act, to make an estimate and determination of the producing capacity. They are no more required to take the fermenting period designated in the notice as the true fermenting period than they are controlled by the distiller's statement of the number and cubical contents of the stills, mash-tubs, and cisterns he intends to use, or by his estimate of the capability of his apparatus. They are required to calculate and report what the distillery can produce, not what the distiller proposes to produce, or what the apparatus would produce, if employed in a particular manner. To enable them to discharge this duty the provisions of the ninth section were enacted. That section requires the distiller to furnish to the assessor an accurate plan of the distillery and distilling apparatus, showing the location and mode of construction of the apparatus and the cubical contents of each vessel. Undoubtedly the main elements necessary for a determination of the producing capacity are the size of the stills, mash-tubs, and cisterns, and the duration of the fermenting period. There is unquestionably, in the nature of things, a true fermenting period, dependent on the operation of natural processes, a period, which may be variant from that selected by a distiller. This period may vary somewhat in different latitudes, but it is everywhere ascertainable, and the commissioner, we think, is authorized by the second section of the act to prescribe regulations for ascertaining it. By that section he is authorized to adopt and prescribe for use such hydrometers, saccharometers, weighing and gauging instruments, 200 meters, or other means for ascertaining the quantity, gravity, and productive capacity of any mash, wort, or beer used or to be used in the production of distilled spirits, as he may deem necessary. This is inconsistent with the idea that the notice of the distiller is to determine the producing capacity. And though in his notice he is required to state the time in which he will ferment his mash, and also an estimate of the quantity of distilled spirits which the apparatus is capable of distilling every twenty-four hours, that is his estimate. Nowhere in the act is any provision made that his statement and estimate shall be obligatory upon the assessor and his skilled assistant. Nor is there to be found in the act any rule by which the producing capacity of a distillery is to be determined, except that the commissioner of internal revenue is, by the second and one hundred and third sections, empowered to make necessary regulations. The declaration shows that such regulations were made, and they were followed by the assessor. The survey was made accordingly. If instead of following the instructions given by the commissioner, the assessor must adopt a period for fermentation given to him by the distiller a period which may, or may not, be a true one; that is, the period within which complete fermentation takes place it is obvious there can be no certainty in the ascertainment and determination of the actual producing capacity of the distillery, and the object which the law has in view will be defeated. At most, all the assessor and his assistant can do will be to ascertain the actual product. The possible product cannot be ascertained; yet, as we have had occasion to say heretofore, when giving a construction to this act of Congress, both the producing capacity and the quantity of spirits actually produced are made by the law measures of taxation, and provision is made for the determination of each.[] But without pursuing the subject farther, we have said sufficient to show that in our opinion the notice given by the distiller of the time he will ferment each tub of mash or beer does not control the survey. The assessor must determine 201 and report the true actual capacity, and not what the distillery will produce in the distiller's proposed mode of running it. There is, therefore, no well-founded objection to the conclusiveness of the survey in this case, and as the tax assessed and collected was in accordance with the survey, the plaintiffs have no right of action to recover it back. Nor is there any such hardship as is suggested. We have seen that a report of the surveyor's determination of producing capacity is by the law required to be placed in the hands of the distiller before he commences business. If dissatisfied with it, he may apply to the commissioner for another survey. He is thus informed of the extent of his liability to taxation. He has, therefore, little reason to complain, when he commences distilling, and does not produce at least eighty per cent. of what his distillery can produce, as determined by the survey, if he is taxed according to a standard which is not false, and of which he had thus early notice. JUDGMENT AFFIRMED. NOTES [] 17 Wallace, 182. [*] United States v. Singer, 15 Wallace, 111.	{ "pile_set_name": "FreeLaw" }
[Cite as Easley v. Dept. of Rehab. & Corr., 2017-Ohio-2700.] DAVE EASLEY Case No. 2016-00530 Plaintiff Judge Patrick M. McGrath Magistrate Gary Peterson v. ENTRY GRANTING DEFENDANT’S DEPARTMENT OF REHABILITATION MOTION FOR SUMMARY JUDGMENT AND CORRECTION Defendant {¶1} On February 16, 2017, defendant filed a motion for summary judgment pursuant to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D). {¶2} Civ.R. 56(C) states, in part, as follows: {¶3} “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.” See also Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977). {¶4} According to the complaint, plaintiff is an inmate in the custody and control of defendant. The complaint provides that plaintiff filed several lawsuits regarding his Case No. 2016-00530 -2- ENTRY interaction with defendant’s employees. Plaintiff states that on July 1, 2016, Captain Clark sent Corrections Officers (CO) Dotson and Dofflemyer 1 to search for a cellphone in his cell. Plaintiff appears to allege that the search occurred in retaliation for filing several lawsuits and that during the search of plaintiff’s person, CO Dotson grabbed his buttocks and inserted his finger into plaintiff’s rectum. Plaintiff states that a CO then slammed his head into the wall and then escorted him to an area out of view of a security camera where the COs continued to beat him. Plaintiff alleges that he was thereafter placed in solitary confinement where he requested a Prison Rape Elimination Act (PREA) investigation, but that such an investigation was not commenced. Plaintiff states that his action is for assault, battery, and negligence. {¶5} Defendant argues that plaintiff’s allegations are false. Defendant asserts that there was no assault, battery, or excessive use of force. In support of its motion, defendant submitted the affidavits of Mike Dotson, Darrold Clark, Robert Dofflemyer, and Melvin Smith. {¶6} CO Dotson avers in his affidavit that on July 1, 2016, he heard a sound like a cell phone ring coming from the middle of the range, an area that included plaintiff’s cell. After receiving permission to search the cells in that area, CO Dotson ordered the inmates out of their cells. Once out of his cell, CO Dotson performed a patdown of plaintiff prior to taking him to the shower to be strip searched. CO Dotson provides that “[a]t no time during my patdown of [plaintiff] did I put my finger in his rectum, put my hand in his butt crack, grab his buttocks, or otherwise touch him inappropriately. I also did not slam his head/face against the wall.” Affidavit at ¶ 9. CO Dotson adds that during the patdown, plaintiff attempted to spin away from the wall and that he put his hand on plaintiff’s back to force him back on the wall; plaintiff was subsequently placed in handcuffs. During the search of plaintiff’s cell, COs discovered white pills hidden in his mattress. As a result, plaintiff was ordered to go to the mini-infirmary for drug 1Plaintiff’s complaint lists Duffelmeyer rather than Dofflemyer. Case No. 2016-00530 -3- ENTRY testing; however, plaintiff refused direct orders to proceed to the mini-infirmary. CO Dotson provides that as a result plaintiff was escorted to J2 block for security control. CO Dotson avers that no one threatened to assault plaintiff nor did anyone assault plaintiff. {¶7} Captain Clark avers in his affidavit that on July 1, 2016, he authorized CO Dotson to perform a shakedown of cells, including plaintiff’s cell. Clark states that he was thereafter called to go to J2 due to allegations plaintiff made regarding PREA violations. Clark provides that he subsequently contacted the PREA victim support person and the PREA coordinator. Clark denies ordering any CO to search plaintiff’s cell in retaliation for lawsuits being filed. {¶8} CO Dofflemyer avers in his affidavit that on July 1, 2016, he assisted CO Dotson in searching inmates and their cells for contraband. CO Dofflemyer states that while escorting inmates to the showers for a strip search, he observed CO Dotson struggling with plaintiff. CO Dofflemyer proceeded to assist CO Dotson in placing handcuffs on plaintiff. CO Dofflemyer states that because they found unidentified pills in plaintiff’s mattress, plaintiff was ordered to proceed to the mini-infirmary to be drug tested; however, plaintiff refused orders to proceed directly to the mini-infirmary. CO Dofflemyer states that he then used an escort technique to return plaintiff to the mini-infirmary, but it was subsequently decided that plaintiff should proceed to J2 instead. CO Dofflemyer avers that at no time did anyone assault plaintiff, threaten to assault plaintiff, punch him in the face, or pull his pants down. {¶9} Lieutenant Smith avers in his affidavit that he was called to assist in shaking down cells in K8. Smith states that when he arrived, plaintiff was sitting at the table with his hands cuffed. Smith provides that after he was informed of the unidentified pills, he decided that plaintiff needed to be tested for drugs. Smith reports that plaintiff disobeyed orders to go to the mini-infirmary and instead proceeded to the K7 bullpen. Smith states that after plaintiff was escorted back to the mini-infirmary, he decided to Case No. 2016-00530 -4- ENTRY escort plaintiff to security control due to threating comments plaintiff made toward COs. Smith avers that no one punched plaintiff in the face, pulled his pants down, assaulted him, or threatened to assault him. {¶10} “To prove assault under Ohio law, plaintiff must show that the defendant willfully threatened or attempted to harm or touch the plaintiff offensively in a manner that reasonably placed the plaintiff in fear of the contact. To prove battery, the plaintiff must prove that the intentional contact by the defendant was harmful or offensive. Ohio courts have held that, in a civil action for assault and battery, the defendant has the burden of proving a defense of justification, such as the exercise of lawful authority.” (Citations omitted.) Miller v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-12, 2012-Ohio-3382, ¶ 11; see also Brown v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-804, 2014-Ohio-1810, ¶ 13 (“A defendant may defeat a battery claim by establishing a privilege or justification defense.”). {¶11} “To recover on a negligence claim, a plaintiff must prove by a preponderance of the evidence (1) that a defendant owed the plaintiff a duty, (2) that a defendant breached that duty, and (3) that the breach of the duty proximately caused a plaintiff’s injury.” Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 05AP- 357, 2006-Ohio-2531, ¶ 10. “Ohio law imposes a duty of reasonable care upon the state to provide for its prisoners’ health, care, and well-being.” Ensman v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 06AP-592, 2006-Ohio-6788, ¶ 5. “The inmate also bears a responsibility ‘to use reasonable care to ensure his own safety.’” Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-941, 2011-Ohio-3314, ¶ 20, quoting Macklin v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 01AP-293, 2002-Ohio-5069, ¶ 21. {¶12} “The use of force is sometimes necessary to control inmates.” Jodrey v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 12AP-477, 2013-Ohio-289, ¶ 17. “Correctional officers considering the use of force must evaluate the need to use force Case No. 2016-00530 -5- ENTRY based on the circumstances as known and perceived at the time it is considered.” Brown at ¶ 15, citing Ohio Adm.Code 5120-9-01(C). “[T]he precise degree of force required to respond to a given situation requires an exercise of discretion by the corrections officer.” Ensman at ¶ 23. “In Ohio Adm.Code 5120-9-01, the Ohio Administrative Code sets forth the circumstances under which correctional officers are authorized to use force against an inmate.” Id. at ¶ 6. {¶13} Ohio Adm.Code 5120-9-01 provides, in pertinent part: {¶14} “(C) Guidelines regarding the use of force. * * * {¶15} “* * * {¶16} “(2) Less-than-deadly force. There are six general circumstances in which a staff member may use force against an inmate or third person. A staff member may use less-than-deadly force against an inmate in the following circumstances: {¶17} “(a) Self-defense from physical attack or threat of physical harm. {¶18} “(b) Defense of another from physical attack or threat of physical attack. {¶19} “(c) When necessary to control or subdue an inmate who refuses to obey prison rules, regulations or orders. {¶20} “(d) When necessary to stop an inmate from destroying property or engaging in a riot or other disturbance. {¶21} “(e) Prevention of an escape or apprehension of an escapee; or {¶22} “(f) Controlling or subduing an inmate in order to stop or prevent self- inflicted harm.” {¶23} “Pursuant to Ohio Adm.Code 5120-9-01(C)(1)(a), correctional officers ‘may use force only to the extent deemed necessary to control the situation.’ Additionally, correctional officers ‘should attempt to use only the amount of force reasonably necessary under the circumstances to control the situation and shall attempt to minimize physical injury.’ Ohio Adm.Code 5120-9-01(C)(1)(b).” Brown at ¶ 16. Also pertinent is Ohio Adm.Code 5120-9-01(B)(3), which defines “excessive force” as “an Case No. 2016-00530 -6- ENTRY application of force which, either by the type of force employed, or the extent to which such force is employed, exceeds that force which reasonably appears to be necessary under all the circumstances surrounding the incident.” {¶24} As stated previously, plaintiff failed to respond to defendant’s motion and failed to offer any evidence to contradict that put forth by defendant. Civ.R. 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 mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.” {¶25} Upon review of the undisputed affidavit testimony put forth by defendant, the court can only conclude defendant’s employees used only the force necessary to control plaintiff. There is nothing to contradict the testimony put forth by defendant that plaintiff disobeyed direct orders and that no excessive force was used. Furthermore, there is no dispute that plaintiff was not otherwise inappropriately touched as alleged in the complaint. {¶26} Based upon the foregoing, the court concludes that there are no genuine issues of material fact and that defendant is entitled to judgment as a matter of law. As a result, defendant’s motion for summary judgment is GRANTED and judgment is hereby rendered in favor of defendant. All previously scheduled events are VACATED. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. PATRICK M. MCGRATH Judge Case No. 2016-00530 -7- ENTRY cc: Dave Easley, #306-400 Jeanna V. Jacobus P.O. Box 45699 Assistant Attorney General Lucasville, Ohio 45699 150 East Gay Street, 18th Floor Columbus, Ohio 43215-3130 Filed April 13, 2017 Sent to S.C. Reporter 5/5/17	{ "pile_set_name": "FreeLaw" }
54 N.J. 151 (1969) 253 A.2d 814 CARDELL, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND J. RICHARD HUDANICH, PLAINTIFFS-APPELLANTS, v. THE TOWNSHIP OF MADISON, A MUNICIPAL CORPORATION IN THE COUNTY OF MIDDLESEX, STATE OF NEW JERSEY, AND MANZO CONTRACTING CO., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS. The Supreme Court of New Jersey. Argued June 4, 1969. Decided June 6, 1969. *152 Mr. Stewart M. Hutt argued the cause for appellants (Messrs. Hutt and Berkow, attorneys). Mr. Marc J. Gordan and Mr. Mark L. Stanton argued the cause for respondents. PER CURIAM. The judgment is reversed for the reasons expressed in the dissenting opinion of Judge Labrecque in the Appellate Division. For reversal Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7. For affirmance None.	{ "pile_set_name": "FreeLaw" }
640 So.2d 940 (1994) Russ GIST and Pam Gist v. VULCAN OIL COMPANY and Jerry's Food Mart, Inc. 1921616. Supreme Court of Alabama. April 1, 1994. S. Shay Samples, Robert D. Word III and Pamela D. Beard of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, and Robert S. Gargis, Tuscumbia, for Russ Gist and Pam Gist. Mark S. Boardman and Perryn Godbee Carroll of Boardman, Tyra & Godbee, P.C., Birmingham, for Vulcan Oil Co. Roderick K. Nelson and Sue E. Williamson of Lamar, Nelson & Miller, P.C., Birmingham, for Jerry's Food Mart, Inc. 941 On Application for Rehearing STEAGALL, Justice. The opinion of February 4, 1994, is withdrawn, and the following opinion is substituted therefor. Russ Gist and Pam Gist sued Phillips 66 Company, Inc.; Vulcan Oil Company; and Jerry's Food Mart, alleging negligence and wantonness in the installation of fuel dispensing pumps and distribution of fuel products. Specifically, the Gists alleged that the defendants had improperly placed a kerosene pump beside a gasoline pump at Jerry's Food Mart; that the improper placement of the pump caused Mrs. Gist to mistakenly purchase gasoline for the Gists' kerosene heater; and that Mr. Gist was injured when the gasoline ignited as he tried to refuel a kerosene heater with it. Mr. Gist sued for damages for personal injury; Mrs. Gist claimed damages for loss of consortium. The trial court entered a summary judgment for Phillips 66 Company and directed a verdict on the wantonness issue at the close of the plaintiffs' evidence. The jury returned a verdict in favor of Vulcan Oil and Jerry's Food Mart on the negligence count, and the trial court entered a judgment pursuant to that verdict. The Gists appeal.[1] We agree with the trial court that the Gists' evidence was not sufficient to support a finding of wantonness. Therefore, we affirm that portion of the judgment based on the directed verdict against the wantonness claim. However, we reverse that portion of the judgment based on the jury verdict. We begin by noting these facts from the record: In January 1990, another couple, Mark Hall and Melissa Chamblee, was visiting the Gists in their home, and the four decided to rent a video. The two women went to Jerry's Food Mart to purchase kerosene for the Gists' kerosene heater. Jerry's Food Mart was a convenience store/gasoline station that sold fuels it purchased from Vulcan Oil; Vulcan Oil owned the gasoline islands and pumps from which the fuel was dispensed. At Jerry's Food Mart, Mrs. Gist went to a fuel island from which she had seen her husband pump kerosene on two or three occasions. One side of the pump was clearly marked "Kerosene," and the other side was marked with the Phillips 66 company logo for gasoline. Mrs. Gist opened the hatchback of her car, where a fuel container was stored. Without removing the container, she filled it with gasoline instead of kerosene. While she was filling the container, Mr. Gist and Mr. Hall arrived at Jerry's Food Mart and went inside; they did not go to the area where Mrs. Gist was pumping fuel. The men rented a video from the store, while Mrs. Gist finished her task. She joined the group inside and purchased snacks, and the four then left Jerry's Food Mart. After returning home, Mr. Gist attempted to refuel his kerosene heater, while it was lit, with the gasoline Mrs. Gist had bought. When Mr. Gist did so, the gasoline exploded into flames on the carpet around the heater, and he tried to stamp them out. Mr. Gist's clothing caught on fire and he sustained second- and third-degree burns to his arms and legs. Those injuries are the basis of this action. At trial, the Gists argued that the defendants wantonly and negligently caused the explosion by placing kerosene and gasoline in the same fuel dispenser. The defendants argued, among other things, that the dispenser was clearly marked and that Mrs. Gist was contributorily negligent in mistakenly pumping the gasoline. The defendants further argued that Mrs. Gist was acting as her husband's agent while pumping and buying the fuel and that her contributory negligence was thus imputed to him and barred his recovery for any injuries caused by the fire. At the close of the evidence, the trial court instructed the jury as to agency and contributory negligence, and the dispositive issue before us now is whether the trial court erred in its instruction. The trial court instructed the jury as follows: "With regard to the claim of contributory negligence filed against the Gists of assumption of the risk, if Mrs. Gist was the 942 agent of Mr. Gist in purchasing the kerosene, if he contacted her as his personal agent for the purchase, a single act then of negligence of hers would be attributed to Mr. Gist and he could be barred from recovery because Mrs. Gist was his agent if y'all find that to be the case and her negligence caused or contributed proximately to his injury, assuming that's what you find. On the other hand, if Mrs. Gist was not the agent of Mr. Gist, then any negligence of hers would not be attributed to Mr. Gist. If you find Mrs. Gist was guilty of negligence in the purchase of this fuel but that she was not the agent of Mr. Gist at the time she did that, the act of negligence would not bar Mr. Gist's recovery." The Gists argue that there is no evidence to support a finding of agency between them and that the foregoing instructions were therefore improper and prejudicial. There is no presumption in Alabama that a wife acts as the agent of her husband, J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); thus, we must apply the general law of agency to determine whether there was sufficient evidence of such a relationship to warrant submitting the issue to the jury in this case. The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent. John R. Cowley & Bros., Inc. v. Brown, 569 So.2d 375 (Ala.1990). The record shows only that Mr. Gist asked his wife to purchase kerosene and that she agreed to do so; there is no substantial evidence to show that Mr. Gist retained any form of control over his wife's action. He did not tell her where or how to pump the fuel, nor did he in any way direct the manner in which she carried out the task. The defendants emphasize that a surveillance tape from Jerry's Food Mart, which was offered into evidence at trial, indicates that Mr. Gist looked out the window of the store to the place where Mrs. Gist was pumping fuel into the container; however, the fact that he saw her perform the activity does not prove that he retained any power to control it. Certain evidence, which was disputed, indicates that Mr. Gist paid for the fuel when he paid for the video rental, and the defendants argue that this was sufficient to create a jury question as to agency. We disagree. Even if Mr. Gist did pay for the fuel, that fact would not indicate that he retained a right to control the manner in which his wife put the fuel into the container. The evidence shows that Mrs. Gist merely did something her husband asked her to do, without his guidance or control; this is insufficient to establish an agency relationship between them. We therefore conclude that the trial court erred in instructing the jury as to agency. The defendants argue that the jury charge on agency did not prejudice the Gists' case and that any error in giving it was therefore harmless. The record shows that after beginning deliberations, the jury returned to the trial court with this request: "Define agent and principal." The trial court explained the agent-principal relation again and added: "Ladies and gentlemen, not only is a principal liable for the negligent acts or omission of his agent, a principal is also liable for the acts of contributory negligence of his agent." Later that day, the jury returned and asked the trial court to explain contributory negligence. Shortly thereafter, the jury returned and informed the trial court that they were "hung up." The trial court ordered them to return to their deliberations and, within an hour, the jury returned with a verdict in favor of both defendants. The facts we have set out here indicate that the jury was confused as to the agency charge, which was not even properly before the jury, and that the verdict may have been based upon this improper charge. We conclude that the erroneous jury charge "probably injuriously affected substantial rights" of the Gists; therefore, we must further conclude that the trial court erred to reversal in giving it. Rule 45, Ala.R.App.P. That portion of the trial court's judgment entered pursuant to the jury verdict is therefore reversed and the cause is remanded for a new trial on the negligence claim. Discussion of the other issues raised on appeal is pretermitted. *943 APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN, OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HORNSBY, C.J., and MADDOX, SHORES and INGRAM, JJ., concur. NOTES [1] The Gists did not appeal the summary judgment for Phillips 66 Company.	{ "pile_set_name": "FreeLaw" }
18 P.3d 1245 (2001) 199 Ariz. 446 Beulah LAWRENCE, a citizen and qualified elector of the City of Mesa, Hassan A. Mirza, a citizen and qualified elector of the City of Mesa, DMB Circle Road Partners, an Arizona general partnership, Talley Defense Systems, Inc., a Delaware corporation licensed to and conducting business within the State of Arizona, and Wal-Mart Stores, Inc., a Delaware corporation licensed to and conducting business within the State of Arizona, Plaintiffs-Appellants, v. Barbara JONES, as the Clerk of the City of Mesa, Defendant-Appellee, Mesa Neighborhood Alliance, a registered political committee, Real Party in Interest-Appellee. No. 1 CA-CV 00-0301. Court of Appeals of Arizona, Division 1, Department C. February 20, 2001. 1246 Mariscal, Weeks, McIntyre & Friedlander, P.A., Phoenix, by Gary L. Birnbaum, Michael S. Rubin, James T. Braselton, Attorneys for Plaintiffs-Appellants, DMB Circle Road Partners and Talley Defense Systems, Inc. Meyers, Taber & Meyers, P.C., by Lisa T. Hauser, Phoenix, Attorneys for Plaintiffs-Appellants, Beulah Lawrence, Hassan A. Mirza and Wal-Mart Stores, Inc. Mesa City Attorney, by Neal J. Beets, Mesa, Attorneys for Defendant-Appellee. Morrill & Aronson, P.L.C., by Martin A. Aronson, John T. Moshier, John C. Doney, Phoenix, Attorneys for Real Party in Interest-Appellee. OPINION VOSS, Presiding Judge. ¶ 1 Plaintiffs appeal from the trial court's denial of their challenge to a Mesa zoning referendum and from denial of their motion for new trial and to amend the judgment. Plaintiffs sought to compel the Clerk of the City of Mesa to disqualify invalid signatures on Referendum RF00-2, which attempted to overturn a zoning change from M-2 (general industrial use) to C-2 (limited commercial use) as enacted by Mesa Ordinance No. 3744. This appeal raises two issues: (1) whether attachment of a zoning map to the petition 1247 was sufficient to meet the requirement that a "legal description" of the subject property be included in the petition, pursuant to Ariz.Rev.Stat. ("A.R.S.") section 19-121(E); and (2) whether petition signatures obtained by petition circulators who were not residents of Mesa were valid. FACTUAL AND PROCEDURAL BACKGROUND ¶ 2 We set forth the undisputed facts directly from the trial court's ruling because they are well-stated and supported by the record: On or about October 25, 1999, Plaintiff DMB/Circle Road Partners filed an application for re-zoning certain property located in the City of Mesa from M-2 to C-2 to allow for the development of a shopping center. That zoning change was approved by the Mesa City Council on or about February 7, 2000, by Ordinance No. 3744. Thereafter, the Mesa Neighborhood Alliance was formed and circulated Referendum Petition No. RF00-2 against the council's adoption of Mesa City Ordinance No. 3744. In order for a referendum to be placed on a Mesa election ballot, 2,729 qualified signatures are required. On or about March 10, 2000, over 4,000 signatures for Referendum Petition No. RF00-2 were filed with the Mesa City Clerk, of which 3,070 signatures were found eligible on April 4, 2000. On or about April 3, 2000, the Mesa City Clerk advised the mayor and city council that Referendum Petition RF00-2 contained sufficient valid signatures to be placed on the ballot and that the initiative would appear on the ballot March 12, 2002, unless the council determined to place it on a special election ballot. The petitions that were circulated by the Mesa Neighborhood Alliance had attached a copy of Ordinance No. 3744, which included a copy of the "Official Supplementary Zoning Map Amending the City of Mesa Zoning Map." This Official Supplementary Zoning Map shows the property affected by the zoning change as a shaded area at the intersection of Greenfield and McKellips Road. The map also references the zoning petition number, the change to C-2 and Ordinance No. 3744, together with the description 35.3[+/-] acres. Five individuals who were residents of Arizona but not of Maricopa County, and 39 individuals who were residents of Maricopa County but not the City of Mesa circulated petitions and gathered 3,448 signatures of the total number filed. Defendants admit that unless the petitions circulated by non-Mesa residents are counted, there were insufficient signatures for this referendum to be placed on the Mesa City ballot. ¶ 3 On April 14, 2000, plaintiffs filed a special action in superior court, seeking to compel the Mesa City Clerk to disqualify invalid signatures on the referendum petition on two grounds: first, because the attachment of the zoning map to the petition was insufficient to meet the requirement of a "legal description" of the property pursuant to A.R.S. section 19-121(E); and second, because petition signatures obtained by nonresidents of Mesa were invalid pursuant to A.R.S. sections 19-114, 16-101, and Mesa City Code section 1-8-2(C). ¶ 4 After an evidentiary hearing, the trial court accepted special action jurisdiction but denied relief, determining on the merits that attaching the zoning map met the requirement of "includ[ing] a legal description of the property," and that the petition circulators were not required to be Mesa residents, pursuant to the recent decision of the United States Supreme Court in Buckley v. American Constitutional Law Foundation Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). After denial of their motions for a new trial and to amend the judgment, plaintiffs timely appealed. DISCUSSION 1. Zoning Map as a "Legal Description" ¶ 5 A zoning referendum petition must include, among other things, the following: In the case of zoning measures the measure shall also include a legal description of the property and any amendments 1248 made to the ordinance by the legislative body. A.R.S. § 19-121(E)(emphasis added). In ruling that the inclusion of the zoning map met this requirement, the trial court concluded: The Court further finds that the Official Supplementary Zoning Map is a sufficient legal description for purposes of the referendum petition. This is the official legal description utilized by the City of Mesa for purposes of zoning. The evidence was undisputed that the City of Mesa has an official zoning map and zoning changes are made by the adoption of an ordinance and an official supplementary zoning map showing the change. To be consistent with the practice in Mesa for legal descriptions for zoning, the official Mesa zoning map is the appropriate legal description to be attached to the referendum petitions seeking referendum on zoning changes. In addition, the attachment of the Official Supplementary Zoning Map contains a sufficient description of the property for readers of the petition to understand its location and size, which the Court concludes is the intent of the statute's requirement that a legal description be attached. Plaintiffs contend that a legal description describing in metes and bounds, by section and township, or by reference to a lot, block, tract, or parcel in a recorded subdivision plat is the type of legal description required. Plaintiffs point out that there are numerous references in Arizona [R]evised [S]tatutes to legal descriptions and specific requirements for what constitutes a sufficient legal description in many circumstances. The purpose and intent of a legal description according to Black's Law Dictionary (5th Ed.) is that it be "complete enough that a particular parcel of land can be located and identified." The attachment of the Official Supplementary Zoning Map accomplishes this purpose and intent. It provides signers of the referendum petition with the specific location of the property in reference to its location in the City of Mesa and with reference to the official zoning map of the City of Mesa. The Court finds that the attachment of the Official Supplementary Zoning Map is a legal description within the meaning of A.R.S. § 19-121(E). ¶ 6 Because our review of this ruling involves an issue of statutory interpretation, it is a question of law that we review de novo. Open Primary Elections Now v. Bayless, 193 Ariz. 43, 46, 969 P.2d 649, 652 (1998). ¶ 7 We are faced with two separate legal standards in this case. First, the rule is well established in Arizona law that the constitutional right to referendum is to be broadly construed. See A.R.S. § 19-111 (Historical and Statutory Notes, Laws 1989, ch. 10, § 1). Our legislature has expressly directed: If there is any doubt about requirements of ordinances, charters, statutes or the constitution concerning only the form and manner in which the power of an initiative or referendum should be exercised, these requirements shall be broadly construed, and the effect of a failure to comply with these requirements shall not destroy the presumption of validity of citizens' signatures, petitions of the initiated or referred measure, unless the ordinance, charter, statute or constitution expressly and explicitly makes any fatal departure from the terms of the law. Id. Our courts have also consistently recognized "Arizona's strong public policy favoring the initiative and referendum." Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 428, 814 P.2d 767, 769 (1991). ¶ 8 On the other hand, our courts have consistently held that referendum petitions must "comply strictly with any applicable statutory requirements." Sherrill v. City of Peoria, 189 Ariz. 537, 540, 943 P.2d 1215, 1218 (1997) (quoting Western Devcor, 168 Ariz. at 429, 814 P.2d at 770) (citing Cottonwood Dev. v. Foothills Area Coalition of Tucson, Inc., 134 Ariz. 46, 49, 653 P.2d 694, 697 (1982)). In Sherrill, our supreme court concluded that section 19-121(E) establishes a bright-line rule that specifies three items to be attached to each petition: (1) the adopted ordinance or resolution; (2) a legal description of the property; and (3) amendments, 1249 if any, made to the ordinance. The statute on its face requires no less and no more. 189 Ariz. at 540, 943 P.2d at 1218. ¶ 9 In harmonizing these two standards, we believe that we may not excuse the failure to include a "legal description of the property" because it is strictly required by the provisions of A.R.S. section 19-121(E). However, we must broadly construe the definition of that requirement in determining whether compliance was achieved.[1] ¶ 10 The statutory scheme regarding referendum petitions does not contain a definition of a "legal description of the property." That term is, however, described in various other provisions of our statutes.[2] For example, in Title 33, regarding descriptions of trust property, six methods of providing "the legal description of trust property" are set forth: 1. By the use of lot, block, tract or parcel as set forth within a recorded subdivision plat. 2. By the use of a metes and bounds or course and distance survey. 3. By the use of the governmental rectangular survey system with specific identification of the location within any section or sections, tract or tracts, of a township and range. 4. By the use of the name of an unpatented mining claim together with the recording data of the location notice thereof recorded in the county recorder's office in which the claim is located. 5. By the use of the name of a patented mining claim together with the mineral survey number and the recording data of the patent to such mining claim. 6. By the use of a homestead entry survey number. A.R.S. § 33-802(A). These are not, however, the exclusive provisions relating to "legal descriptions;" for example, regarding the incorporation by reference of documents filed with the office of the County Recorder, Title 11 provides: If a legal description sufficient to determine the physical location of real property has been recorded, a reference by record location to the instrument containing the description is a sufficient description of the real estate. The reference may be made to maps or plats, surveys, deeds or any other recorded instrument but must contain language indicating that only the legal description is to be incorporated in the subsequent instrument. A.R.S. § 11-482(C)(emphasis added). The intent of the various statutes describing or requiring a "legal description" of property is to include information sufficient to give the reader of the document adequate notice about where a particular property can be located. See, e.g., Ten Z's Inc. v. Perry, 166 Ariz. 203, 204, 801 P.2d 438, 439 (App.1990) ("The crucial question to be answered is whether a member of the public who saw the notice in question would be able, without difficulty, to determine what property was being noticed for sale."). ¶ 11 In this case, the "legal description," as would be narrowly defined by plaintiffs, and as was listed on the Planning and Zoning Board Application, is as follows: The Northwest quarter of the Northwest quarter of Section 10, Township 1 North, Range 6 East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona; 1250 EXCEPT the South 150 feet of the East 130 feet; and EXCEPT the South 10 feet; and EXCEPT the East 30 feet; and EXCEPT the North 55 feet; and EXCEPT the West 55 feet; and EXCEPT all uranium, thorium and all other material determined pursuant to Section (b)(1) of the Atomic Energy Act of 1946 (60 Stat. 761) to be peculiarly essential to the production of fissionable material, contained in whatever concentration, in deposits in the land, as reserved in Instrument of Transfer recorded in Docket 270, Page 90, records of Maricopa County, Arizona. Described property begin in and forming a part of the City of Mesa, Arizona and comprising an area of 1,535,239 square feet of 35.2442 acres more or less. ¶ 12 This technical narrative does not give the average reader of a referendum petition clear notice of the location of the property. In contrast, the zoning map indicated that the property is located at the northeast corner of the intersection of North Greenfield Road and East McKellips Road in Mesa, Arizona, and exhibited a shaded area, showing bordering streets, that comprises 35.3[+/-] acres, to be zoned C-2 by "Ord. # 3744." The map also referenced the zoning case number, Z99-119, and contained the further notation that "the attached zoning changes were approved by the Mesa City Council on February 7, 2000 by Ordinance # 3744. If you have any questions concerning these changes, contact the City of Mesa Community Development Department at XXX-XXX-XXXX." The map was signed by both the Mayor and the City Clerk, and contained the City of Mesa Corporate Seal. ¶ 13 At the evidentiary hearing in the trial court, Frank Mizner, the Planning Director for the City of Mesa, testified that the city maintains an "Official Zoning Map" that illustrates all zoning districts within the city, along with landmarks, which is "utilized to provide zoning information to the public," and which constitutes the only "official legally binding document in the city that shows zoning." It does not describe zoning parcels by either metes and bounds descriptions or assessor parcel numbers. Although zoning applications often contain a metes and bounds description based on townships and ranges, some zoning applications contain only a "pictorial depiction of the property in the form of a map," or merely a simple site plan. The Planning Department converts all those types of descriptions into a "pictorial legal description in the form of a map showing the boundaries of the property, reference to adjacent or nearby streets, size of the property," which is then used during the public hearing process, in the City Council, and in legal publications. After the City Council votes on a zoning amendment, a Supplementary Official Zoning Map is created that is attached to the ordinance, containing additional information about the ordinance, the date of the amendment, and the zoning change affected. This supplemental map is considered by the City to be a legally binding document as well as "the official legal description" for the zoning of the subject parcel.[3] Based on his experience, the Planning Director opined that the public would find the map more useful than a metes and bounds description "because it physically relates to the neighborhood," whereas a detailed technical description refers to "meridians and baselines and sections that the normal citizen probably wouldn't understand." ¶ 14 In responding to plaintiffs' initial challenge to the petition in the City Clerk's office, the Mesa City Attorney gave the following reasons for instructing the City Clerk to accept the petitions containing the zoning map as valid: 1251 [Y]ou narrowly interpret "legal description" as limited to a word or narrative form of land description-such as a metes and bounds description or a description by assessor parcel number. I do not interpret the statutory phrase "legal description" so narrowly. Particularly in the context of a referendum, I believe a sufficiently detailed map, similar to the one attached to Mesa's zoning ordinance and the citizen's referendum in this case, more than meets the statutory requirement for a legal description of the property in question. ... Here, the controlling statute requires that potential petition signers have available to them a legal description of the property that is the subject of the rezoning and referendum. The Legislature did not specify a particular type of legal descriptionalthough the Legislature was free to do so if it chose. So, the critical statutory construction question becomes one of legislative intent: "Why, in the first place, did the Legislature create a requirement for a legal description of the property subject to a zoning referendum?" By requiring a legal description of the property ..., the manifest intent of the Legislature was to make sure that petition signers had an opportunity to learn about the parcel of land being rezoned. Location, location, location is self-evidently critical to land use and referendum decisions. ... The map Mesa attaches to all its enacted zoning ordinances fulfills all of these manifest legislative purposes, as well as or better than a technical metes and bounds or other narrative form of legal description. Better than a narrative description, a map provides a literal picture of the area being rezoned as well as the vicinity around the land being rezoned. A picture is worth a thousand words, especially when those wordsas in a metes and bounds form of legal description or an assessor parcel number form of legal descriptionare legalese, real estate-ese or otherwise technical words that are foreign to most potential petition signers. Unless potential petition signers happen to specialize in land surveying, a narrative legal description is not only uninformative, it is decidedly unhelpful in fulfilling the manifest legislative intent of providing useful and meaningful information to potential petition signers. ... Note that the Mesa City Code, a compilation of laws, not only allows but requires that each zoning case be accompanied, not by a technical word description of the property to be rezoned, but by a "map" that shows the property as well as the immediately surrounding vicinity. Mesa City Code § 11-2-2. Thus, there is no legal reason under A.R.S. § 19-121(E) to reject the map already authorized by law [thereby "legal"] that describes the property to be rezoned [thereby "description"]. A legal description in the form of a Code-required map suffices under the common dictionary meaning of the words "legal description." ¶ 15 We agree with this reasoning. We acknowledge that a "technical, narrative form of legal description" might necessarily be required in a variety of other contexts, such as a real estate dispute to determine boundary or ownership interests by reference to records maintained by the County Recorder, or in a taxation dispute involving comparison of records maintained by the County Assessor, or in an attempt to create a lien against specific property. See, e.g., Bryan v. Nelson, 180 Ariz. 366, 884 P.2d 252 (App.1994) (holding street address is insufficient "legal description" to create a lien by dissolution decree pursuant to A.R.S. section 25-318(A)). However, we find nothing inherent in the context of A.R.S. section 19-121(E) that requires, "legal description" to be interpreted to mean a hypertechnical recitation of property boundaries that would have no meaning or relevance to the citizens considering the petition. Rather, we believe that if the legislature had wanted to include such a narrowly constructed definition of "legal description," it would have included it in Title 1252 19 referendum provisions as it has done in other areas of the law. We have not found, nor have plaintiffs cited, any Arizona case mandating that we give the term such a narrow, technical definition. ¶ 16 Plaintiffs do not dispute that the zoning map utilized here is "official," as authorized by the Mesa City Code, nor do they dispute that it "establishes the location and boundaries of the property for zoning purposes." Furthermore, they do not contend that anyone who signed the petition was misled. Under these circumstances, we agree with the trial court that, in the context of referendum petitions, the requirement of A.R.S. section 19-121(E), that a "legal description of the property" be attached to the petition, broadly construed to effect the intent of that requirement, was met in this case by inclusion of the particular zoning map authorized by the Mesa City Code and attached to the petition. We therefore affirm the trial court's ruling on this ground. 2. Non-Resident Petition Circulators ¶ 17 Plaintiffs also challenge the trial court's conclusion that signatures collected by petition circulators who were not residents of Mesa were valid. In so ruling, the trial court relied on the decision of the United States Supreme Court in Buckley v. American Constitutional Law Foundation Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), and concluded that "circulators of referendum petitions must only be qualified to register to vote in the State of Arizona." It is undisputed that the petition circulators in this case met this requirement. ¶ 18 On appeal, plaintiffs argue that this ruling is erroneous as a matter of law, and that only Mesa residents are qualified to circulate a referendum petition involving a Mesa zoning ordinance. Plaintiffs base this argument on the provisions of A.R.S. sections 19-114(A) and 16-101, and on Mesa City Code section 1-8-2. ¶ 19 We have recently addressed the issue whether any Arizona statutory authority precludes the circulation of county referenda petitions by nonresidents of the county who are otherwise qualified to register to vote in Arizona. See KZPZ Broadcasting, Inc., v. Black Canyon City Concerned Citizens, 199 Ariz. 30, 13 P.3d 772 (App.2000). In KZPZ, applying the principles of Buckley, we concluded that "the statutory scheme could not constitutionally include a local residency requirement for referendum petition circulators." 199 Ariz. at 38, ¶ 27, 13 P.3d at 779. We therefore construed the statutory provisions in a manner consistent with Buckley, noting that the Arizona Legislature had amended the relevant provisions after Buckley to conform to that decision. We need not engage in that analysis again; we find the analysis in KZPZ dispositive of the statutory construction issue raised here. ¶ 20 This case, however, also involved the application of a City Code provision. Mesa City Code section 1-8-2 provides: (B) All circulators of initiative or referenda petitions proposing to change the Mesa City Charter or Mesa City Code shall be qualified Mesa electors, as defined in Section 1-8-1 above. (C) In evaluating petitions presented for signature verification, the City Clerk shall not count or consider signatures on an initiative, referendum, or nomination petition under this Section that are circulated by persons other than a Mesa qualified elector, as defined in Section 1-8-1 above. The asterisk in section B refers to the following footnote: Effective August 6, 1999, pursuant to Titles 16 and 19, circulators of initiative, referendum, nomination, and recall petitions must be qualified to register to vote in this State (HB 2656, Buckley v. American Constitutional Law Foundation). (Emphasis added.) In ruling on this issue, the trial court noted: Mesa City Ordinance 1-8-2 requires that circulators of initiative or referenda petitions proposing to change the Mesa City Charter or Mesa City code shall be qualified Mesa electors. An asterisk and footnote have been added to 1-8-2 to the effect that pursuant to House Bill 2656 and Buckley v. American Constitutional Law Foundation, circulators of initiative, referendum, nomination and recall petitions must be qualified to vote in Arizona. Although *1253 Mesa has not deleted this ordinance from the city code, it is no longer enforceable in light of HB 2656 and Buckley v. American Constitutional Law Foundation. ¶ 21 We agree with this legal conclusion. Although the Mesa City Code does not require the same statutory interpretation in which we engaged in KZPZ, the constitutional principles we analyzed in that case apply equally here. Assuming without deciding that a state residency requirement for petition circulators would be upheld after Buckley, we stated that, we do not see how the more significant restriction of county residency would survive strict scrutiny. The more local the residency restriction is made, the smaller the pool of available petition circulators becomes, and the more limited is political expression about proposed changes, with no corresponding heightened protection of the state's interests in the integrity of its elections. KZPZ, 199 Ariz. at 38, ¶ 24, 13 P.3d at 779. In considering whether a locality had a compelling interest in preventing involvement in the referendum process by "political outsiders," we pointed out that the "grass roots support" interests are already protected by the requirements that only local residents can actually sign the petition and only local residents can actually vote in a local referendum election. Id. at ¶ 25. We were also "unwilling to say, as a general proposition, when local Arizona land use issues are involved, that only local residents have an interest in the outcome sufficient to entitle them to voice political expression through circulation of a referendum petition." Id. Therefore, we concluded, a local residency requirement imposed on referendum petition circulators would "run afoul of the First and Fourteenth Amendments under the principles set forth in Buckley." KZPZ, 199 Ariz. at 39, ¶ 27, 13 P.3d at 780. ¶ 22 We conclude, based on the above, that the trial court properly rejected plaintiffs' challenge to the validity of the referendum petitions based on the Mesa nonresidency of circulators who were otherwise qualified to register to vote in Arizona. CONCLUSION ¶ 23 Based on the foregoing, we affirm the trial court's judgment. CONCURRING: NOEL FIDEL, Judge, CECIL B. PATTERSON, JR., Judge. NOTES [1] Plaintiffs contend that we may not interpret the meaning of "legal description of the property" as used in A.R.S. section 19-121(E) because our supreme court has held A.R.S. section 19-121(E) to be "clear and unambiguous." See Sherrill, 189 Ariz. at 541, 943 P.2d at 1219. Sherrill did not, however, address the meaning of "legal description," and held only that it was erroneous for the court of appeals to require more to be included in a referendum petition than the referendum statutes actually require. We therefore do not feel constrained by Sherrill from deciding this issue. [2] Indeed, plaintiffs have provided us with an appendix in which 82 statutes are listed which purport to refer to "legal descriptions." We do not set forth these various provisions in their entirety, for it is undisputed that none of them conclusively apply to A.R.S. section 19-121(E). Rather, we approach the definition of "legal description" in a manner confined to the specific circumstances and intent of A.R.S. section 19-121(E). [3] Mesa City Code section 11-2-2(A) provides, in relevant part: The locations and boundaries of zoning districts are established on the City of Mesa Zoning Map, dated and signed by the Mayor and City Clerk, which map accompanies and is hereby declared a part of this Zoning Ordinance. The Code also provides, however, that the Zoning Map is not intended to be used as a "precise legal narrative" of zoning district boundaries. Mesa City Code § 11-2-2(B). We do not see this restriction as a barrier to our holding that a "precise legal narrative" is not the sole method of attaching a "legal description" to a zoning referendum petition within the meaning of A.R.S. section 19-121(E).	{ "pile_set_name": "FreeLaw" }
439 P.2d 50 (1968) Robert E. CROWE, Helen K. Mueller, Eldon L. Cull, Lorraine P. Crowe, Robert Ferguson, Donna M. Ferguson, and William C. Russell, Jr., on behalf of themselves and all other persons similarly situated, Plaintiffs in Error, v. Beverly WHEELER, Neal Pine, Robert Crow, Charles A. Anderson, Jr., Dowell Blake, Morris Steen and Mildred Blake, individually and as members of the Board of Education of Gilpin County School District No. RE-1, in the County of Gilpin, State of Colorado; F. Morgan Gray, individually and as the County Clerk and Recorder of Gilpin County, State of Colorado; and Gilpin County School District No. RE-1 Gilpin County, Colorado, a body Corporate, Defendants in Error. No. 22371. Supreme Court of Colorado, En Banc. March 25, 1968. 51 Albert B. Dawkins and Robert E. Holland, Denver, Richard D. Gilson, Golden, for plaintiffs in error. John W. Lentz, Englewood, Raymond J. Cody, Arvada, for defendants in error. HODGES, Justice. Alleging that conflicting opinions had been circulated regarding the qualifications required of voters at a school bond election scheduled for December 18, 1965, the plaintiffs in error on December 14, 1965 filed a complaint and petition seeking an injunction against proceeding with the election and also a declaratory judgment defining the voting qualifications. This school bond election had been called by School District No. RE-1 of Gilpin County, Colorado. The plaintiffs described themselves in their complaint and petition as "potential voters" and representative of a class so numerous as to make it impracticable to bring them all before the court. They alleged that uncertainty and confusion has resulted from the conflicting opinions, including two by attorneys, causing a situation where "persons who may be entitled to vote at said election will be disfranchised and persons who may not be entitled to vote at said election will, nevertheless, cast ballots thereat and the election and the bonds issued pursuant thereto will be void." Two examples of the conflicting opinions of the two attorneys were attached as exhibits to the complaint and petition. The opinion of one of the attorneys was incorporated in an article captioned "Vote Qualifications and Information" in a local newspaper published December 13, 1965. The other opinion was set forth in a letter directed to the Superintendent of Schools of Gilpin County. As to this opinion, there is no indication from the pleadings or attached exhibits whether it in any way was exposed to general scrutiny. The variance between these two opinions involves an interpretation of who is a "qualified taxpaying elector" in a school bond election. The attorney opinion contained in the newspaper article stated in substance that a purchaser of real property in possession under a contract of sale, who is obligated thereunder to pay the taxes, and is otherwise qualified to vote, may vote. The other attorney opinion stated such a person is not qualified to vote. A judicial determination of this question is not required by the issues presented by this writ of error. This, however, is an issue in Russell v. Wheeler, No. 22270, Colo., 439 P.2d 43, announced simultaneously with this opinion which case involves an election contest pertaining to this same election. In this companion case, we hold that such a purchaser of real property in possession under a contract of sale is not included within the definition of "qualified taxpaying elector" as this term is defined in 1965 Perm.Supp., C.R.S.1963, 123-11-1 (4). The trial court, after a hearing, refused to enjoin the election which was held as scheduled and resulted in a vote favoring the issuance of the bonds. The trial court, however, did order the defendants to answer on the merits of the complaint as it pertains to the declaratory judgment relief requested. Rather than answer, however, the defendants filed a motion to dismiss the complaint and petition on the grounds, among others, of failure to state a claim, and more specifically, on the ground that the issue is moot because the election had been held. This motion to dismiss was sustained by the trial court on the grounds of "failure to state a claim upon which relief can be 52 granted in that the matters alleged therein are moot." Plaintiffs bring this writ of error claiming the trial court erred in granting the defendants' motion to dismiss the complaint and petition. The trial court's refusal to enjoin the holding of the election on December 18, 1965 does not appear to have been made a major issue by the plaintiffs who thrust their sole arguments against the trial court's refusal to proceed with the action and enter a declaratory judgment. However, because of the nature of the allegations which appear to cast somewhat of an overtone of invalidity upon the holding of this election, we deem it necessary to briefly comment on the trial court's refusal to enjoin the holding of the school bond election on December 18, 1965. In our view, the trial court was correct in denying the injunction. Nothing was alleged in the complaint and petition which could be considered as a justifiable basis for enjoining the holding of the election as scheduled. The general allegation about conflicting opinions as to those qualified to vote and that these opinions might cause some to vote who are not qualified, or might cause a qualified voter to stay away from the polling place, is so speculative as to be no warrant whatsoever for enjoining the election. In the complaint, it is alleged merely that "some persons" may be affected by the purported uncertainty and confusion. There are no allegations presented in the complaint and petition which have the semblance of indicating that any mandatory requirement of law had been violated by the defendants, or that any illegal procedures or fraudulent practices by the defendants or any one else had been committed which would make it unlikely that the true will and purpose of the voters would be expressed. Only allegations of this nature in our view constitute a sound basis for injunctive orders to stop an election. Kelly v. Novey, 136 Colo. 408, 318 P.2d 214 generally expresses this rule in a case where contestors sought unsuccessfully to invalidate an election for members of the board of education. An action to enjoin the holding of a scheduled election, like an action to invalidate an election already held, must be brought on the basis that the required election procedures or the conduct of the election has been contaminated to the extent that the true will of the voting public may not be reflected, or that a statutory requirement has not been substantially complied with by those responsible for calling, scheduling, and conducting the election. Did the trial court commit error in dismissing the complaint and petition for declaratory judgment after the election in question had been held as scheduled? Our examination of this record and particularly, the allegations of the complaint and petition leads but to one conclusion, which we deem to be clearly obvious. This conclusion is that the trial court properly dismissed the complaint and petition. No purpose would have been served by a declaratory judgment on voter qualifications for an election already completed. At this point, the plaintiffs' remedy as provided by statute was to contest the election, which procedures had, in fact, already been initiated by several of the same plaintiffs. C.R.S.1963, 77-11-2 prescribes who may obtain a declaratory judgment. It provides: "Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder." *53 Under this statutory authority and R.C.P. Colo. 57, a judicial tribunal is not required to render a judicial opinion on a matter which has become moot. In this case, a judicial opinion would not serve to terminate any controversy or put to an end any uncertainty, which for the purpose of the instant complaint and petition, evaporated when the election was concluded. Under these circumstances, the trial court had no alternative other than to dismiss the complaint and petition. A case is moot when a judgment, if rendered will have no practical legal effect upon an existing controversy, and we add that as we view the complaint and petition, there is no justiciable controversy alleged as between the plaintiffs and the defendants. See Sigma Chi Fraternity v. Regents of University of Colorado, D.C., 258 F.Supp. 515 and Elliott v. City of Fort Collins, 135 Colo. 558, 313 P.2d 316. The plaintiffs devote considerable space in their briefs to an alleged deficiency in the published election notice. The defendants state that such an issue was not properly before either the trial court nor before this court on writ of error, since no such issue is recognizable from the allegations of the plaintiffs' complaint and petition. We agree with the defendants. Plaintiffs' complaint and petition is devoid of any allegation attacking the published election notice; and furthermore, there is no claim that defendants, or any one of them, had violated any of the statutory requirements pertaining to this election notice. It is obvious the plaintiffs are attempting to make this an issue here as an afterthought. We must therefore ignore it, noting however, that in the companion case of Russell v. Wheeler, No. 22270, Colo., 439 P.2d 43, announced this same date, the adequacy of the published election notice is determined. The trial court properly dismissed the plaintiffs' complaint and petition for a declaratory judgment. Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
NUMBER13-04-00569-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ________________________________________________________________ IN RE FORD MOTOR COMPANY _____________________________________________________________ On Petition for Writ of Mandamus and Emergency Motions for Stay and Leave to File Certain Documents In Camera ______________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Per Curiam Memorandum Opinion Relator, Ford Motor Company, has filed a petition for writ of mandamus, an emergency motion for stay, and an emergency motion for leave to file certain documents in camera in the above cause. The Court, having examined and fully considered the emergency motions and the petition for writ of mandamus, is of the opinion that relator has not shown itself entitled to the relief sought. Accordingly, the emergency motion for stay, the emergency motion for leave to file certain documents in camera, and the petition for writ of mandamus are hereby DENIED. See Tex. R. App. P. 52.8. PER CURIAM Memorandum Opinion delivered and filed this 27th day of October, 2004.	{ "pile_set_name": "FreeLaw" }
154 B.R. 359 (1992) In re Dr. Jerome F. JACOBS, Debtor. No. 90-15230-BKC-SMW. United States Bankruptcy Court, S.D. Florida. September 29, 1992. 360 Michael Goldberg, Miami, FL, for debtor. Norman S. Pallot, South Miami, FL, for creditors. Jules Bagdan, Trustee, South Miami, FL. ORDER ON DEBTOR'S MOTION TO AVOID JUDICIAL LIENS PURSUANT TO § 522(f) SIDNEY M. WEAVER, Bankruptcy Judge. THIS CAUSE came before the Court on August 13, 1992 upon the debtor's Motion to Avoid Judicial Liens Pursuant to 11 U.S.C. § 522(f), and the Court, having reviewed the record, motion and memorandums of law, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law: On July 31, 1990, Dr. Jerome F. Jacobs, (the "debtor"), filed for relief under Chapter 7 of the Bankruptcy Code and received a discharge on November 7, 1990. On Schedule B-4 of his bankruptcy schedules, the debtor listed a house he purchased in November of 1982 as his homestead exemption, which was legally described as: Lot 13 in Block 1 of BEACH VIEW SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 9, Page 158 of the Public Records of Dade County, Florida. Prior to the bankruptcy filing, 15 creditors obtained and recorded judgments against the debtor. City Stores Inc., Commercial Credit Corp., and Chrysler First Financial Services Corp. (the "objecting creditors") were among such creditors and presently oppose the debtor's motion to avoid all liens on his claimed exemption. They obtained and properly recorded their judgments in Dade County respectively on June 5, 1974 in the amount of $1,232.52, on March 4, 1975 in the amount of $3,347.66 and on December 5, 1989 in the amount of $4,686.56. Section 522(f)(1) of the Bankruptcy Code allows a debtor to avoid the fixing of a judicial lien on his interest in property to the extent that the judicial lien impairs an exemption to which the debtor would have been entitled to under § 522(b). In re Bradlow, 119 B.R. 330, 331 (Bankr.S.D.Fla. 1990); In re Goodwin, 82 B.R. 616, 617 (Bankr.S.D.Fla.1988); In re Hall, 752 F.2d 582, 584 (11th Cir.1985). In Florida, qualified residents are entitled to a homestead exemption by virtue of the Florida Constitution, Article X, Section 4 and via § 522(b), which authorizes states to opt out of the federal exemptions for state created-exemptions. The debtor claims that subsequent to his listing the aforementioned house, located at 5223 Pinetree Drive, Miami Beach, Florida, as his homestead exemption, neither the trustee nor any creditors objected. Indeed, a review of the docket sheet reveals that no objections were filed. Where no party in interest objects timely to a claim of homestead, the exemption is deemed allowed. See Bankruptcy Rule § 4003(b); Davis v. Bright, 23 B.R. 347, 348 (Bankr.S.D.Fla.1982). Thus, in light of the debtor having otherwise satisfied the homestead requirements and given that no creditor or interested party had objected timely to the claimed exemption, the Court finds that the real property described above is the debtor's homestead under Article X, Section 4 of the Florida Constitution. This Court, as well as other Florida courts, has previously held that a homestead exemption is impaired by the mere existence of judgment liens on the homestead. Davis v. Bright, 23 B.R. at 347; In re Bradlow, 119 B.R. at 331; In re Bird, No. 88-8184-CIV-ARONOVITZ, slip op., at 9 (S.D.Fla. May 5, 1989), reversing 84 B.R. 858 (Bankr.S.D.Fla.1988); In re Calandriello, 107 B.R. 374 (Bankr.M.D.Fla.1989); In re Hutchinson, 92 B.R. 950 (Bankr. M.D.Fla.1988). More specifically, the Calandriello court elaborated as to the effect of liens on a homestead: [P]ractical problems are presented when a certified copy of a judgment against a homeowner is recorded in the official records of the county in which the homeowner's homestead is located. Title companies generally treat such 361 judgments as a cloud on title to the homestead unless [they are] avoided in bankruptcy, satisfied or otherwise removed. When the homeowner later becomes a debtor in bankruptcy, the limitations on the debtor's actions that result denies the debtor the full enjoyment that the Florida Constitution provides. [T]he Bankruptcy Code contains a specific provision designed to prevent the debtors . . . from experiencing problems of this sort. In re Calandriello, 107 B.R. at 375. In line with the Calandriello court's reasoning, the debtor's constitutional homestead exemption is likewise impaired here, in that the debtor's lender and the lender's title insurance company have conditioned the debtor's attainment of a second mortgage for his homestead upon an order issued by this Court, avoiding all judgment liens on the house. Notwithstanding the argument that the mere existence of judgment liens impair the debtor's homestead, the objecting creditors contend that the debtor's motion to avoid liens is untimely since it was made long after the debtor received a discharge. Although § 522(f) is silent in regards to whether the debtor must move for the avoidance of liens within a given time period, the majority of jurisdictions have considered the issue and held that lien avoidance is permissible subsequent to discharge if there has been no injury or prejudice to creditors. Yazzie v. Postal Finance Co., 24 B.R. 576, 577-578 (9th Cir.1982); In re Jent, 37 B.R. 561, 563 (Bankr.W.D.Kentucky 1984); In re Chesnut, 50 B.R. 309, 310 (Bankr.W.D.Oklahoma 1985) (holding that creditors can argue lien avoidance is untimely based on equitable grounds such as prejudice, laches, reliance, estoppel or fraud); In re Skakalski, 67 B.R. 448, 450-451 (Bankr.W.D.Pa.1986) (ruling that the debtor need not file a motion to avoid liens within any particular time where creditors are not prejudiced by the delay). The minority position, on the other hand, establishes the discharge date as an absolute deadline. In re Jent, 37 B.R. at 563. In light of the fact that neither the Bankruptcy Code or Rules provide any particular time constraints for raising lien avoidance, the majority of jurisdictions hold that there is no time limit absent prejudice or fraud to creditors and given that the creditors in the instant case have not shown or even posited that the debtor's motion for lien avoidance is fraudulent or has a prejudicial impact on their interests, the Court finds that the creditors are not prejudiced by the debtor's motion for lien avoidance. The objecting creditors further contend that the instant case has been closed and that, therefore, the debtor can no longer move to avoid their liens. In fact, the majority of bankruptcy courts have held, to the contrary, that a debtor has a right to reopen his case in order to avoid liens if the creditors' rights are not injured as a result. See In re Quackenbos, 71 B.R. 693, 695 (Bankr.E.D.Pa.1987); In re Ricks, 62 B.R. 681, 683 (Bankr.S.D.Cal.1986) (holding that, in the absence of prejudicial delay, the bankruptcy court must reopen a closed case to permit the debtor to file a lien avoidance action). In the instant case, however, the Court need not analyze the matter, for a review of the court file and the docket sheet indicate that the instant case has never been closed. The objecting creditors finally assert that the avoidance of their liens via § 522 would constitute a taking of their property since their liens arose prior to the enactment of the 1978 Bankruptcy Code and, thus, § 522(f) should not apply retroactively to avoid their liens. The objecting creditors' argument ignores the fact that a recorded judgment only becomes a lien upon the debtor acquiring an interest in property. In re Owen, 961 F.2d 170, 172 (11th Cir.1992). Thus, the creditors' earlier recorded judgments only became judgment liens upon the debtor's purchase of the house in November of 1982, which was four years after the effective date of the 1978 Bankruptcy Code and, thus, the creditors' judgment liens can be properly avoided under § 522(f). For the foregoing reasons, it is hereby: *362 ORDERED AND ADJUDGED that the debtor's Motion to Avoid Judicial Liens Pursuant to § 522(f) is hereby granted and, thus, all judgment liens on the debtor's homestead are hereby avoided. DONE AND ORDERED.	{ "pile_set_name": "FreeLaw" }
664 P.2d 382 (1983) Nona McCARROLL and Vernis McCARROLL, Appellants, v. DOCTORS GENERAL HOSPITAL, a corporation, Appellee. No. 55893. Supreme Court of Oklahoma. May 10, 1983. Rehearing Denied June 14, 1983. James B. Browne, Oklahoma City, for appellants. Stephen Peterson, Bana B. Blasdel, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellee. 383 LAVENDER, Justice: This is an appeal from an order of the trial court which granted summary judgment in favor of Appellee, Doctors General Hospital, by reason of the bar of 76 O.S. 1981, § 18. Plaintiffs below brought suit in the district court against Dr. H., Lincoln Medical Center, Inc., neither of whom are parties to this appeal, and Doctors General Hospital for medical malpractice. The suit was commenced on December 27, 1977. The petition alleges that on July 28, 1975, plaintiff, Nona McCarroll, underwent surgery for the repair of a hernia at Doctors General Hospital. In the course of the surgery performed by Dr. H., it is alleged that he negligently severed a femoral artery under the mistaken impression that it was the saphenous vein. On the day of the operation, Nona was transferred to the care of another physician who transferred her to Presbyterian Hospital to correct and repair her condition, and there she underwent surgeries, including successive amputations of her leg. The allegations of malpractice directed against Doctors General Hospital are that it, through its agents: 1. Improperly draped Nona, thereby allowing Dr. H. to undertake improper surgical procedure; 2. Secured an admission form and consent to operate from Nona, but wholly and totally failed to warn her of the dangers inherent in the surgical procedure and thereby failed to secure proper informed consent to the surgical procedure; and 3. Engaged in improper follow up care, failed to secure adequate care and treatment for Nona by not watching her properly in the recovery area, failed to learn of her condition and her injury from the surgery within a reasonable time, and failed to notify a physician that Nona was having additional medical problems, in that she was in great pain and her leg was turning cold, within a reasonable time. It is only the constitutionality and applicability of 76 O.S. 1981, § 18 to the case at bar which is here presented on appeal. I. This appeal involves only the hospital for its alleged negligent acts it is said to have committed separate and apart from the negligent act of Dr. H. in severing plaintiff's femoral artery. Under the circumstances in this case, the act of Dr. H. in allegedly concealing from the plaintiff his, 384 Dr. H.'s, negligence would not be imputable to the hospital absent proof of agency (of which there was none). See 51 Am.Jur.2d Limitations of Actions, § 150. However, as we view 76 O.S. 1981, § 18, the question here is not whether the hospital concealed from the plaintiff its acts of alleged negligence so as to extend the limitations period, but whether, under the record, there remains a question of fact as to when the plaintiff "knew or should have known, through the exercise of reasonable diligence, of the existence of the ... injury or condition complained of," within the terms of § 18. Thus, the concealment by Dr. H. of his alleged negligence in severing plaintiff's femoral artery would be admissible only to explain why plaintiff did not learn of her injury or should not have learned of it until much later. Was the plaintiff excused by such concealment from making reasonable efforts to ascertain whether she had been injured by the failure of the hospital to render to her adequate follow-up care? We deem this question to be for the jury.[1] Our discussion follows. The rule on review of a trial court's ruling on a motion for summary judgment is as expressed in Weaver v. Pryor Jeffersonian, Okl., 569 P.2d 967 (1977): "[A]ll inferences and conclusions to be drawn from underlying facts contained in such materials as affidavits, admissions, depositions, pleadings, exhibits and the like, must be viewed in light most favorable to party opposing the motion." With that rule in mind, we have reviewed such materials as appear in the record before us and are unable to agree with the trial court that the only reasonable inference to be drawn therefrom is that plaintiff either learned or should have learned of the hospital's negligence more than two years before she filed her action. The record discloses that Nona entered defendant hospital for hernia surgery to be performed by Dr. H. Upon regaining consciousness, she discovered that she was in Presbyterian Hospital. Upon inquiring why she was there, she was told to ask Dr. H. After she was released from Presbyterian Hospital, and approximately three or four months following the hernia surgery, Nona went to see Dr. H. because she was having difficulties with her left foot and leg. Her foot was dropped, her toes were curled, and her heel was abnormal. Dr. H. told her that her condition was due to old age and hardening of the arteries. Nona did not seek to confirm Dr. H.'s expressed opinion because, as she stated, he was her doctor and she had confidence in him. Around October 1975, Nona consulted with Ed Smith, an attorney, regarding a dispute which she had with her medical insurance company over payment of medical bills, and on October 31, 1975, she signed a medical release to enable him to secure her medical records and secured her permission to engage the services of James B. Browne, another attorney, to assist him. Upon examination of the medical records, Browne advised Smith of the possibility of a medical negligence claim and recommended that the records be submitted to qualified medical personnel to determine whether a medical negligence claim existed. On February 6, 1976, Browne advised Smith that in his opinion a claim for medical negligence existed, and within two years thereafter, this suit was filed. A part of the hospital medical records pertaining to Nona is an Operation Record dated July 28, 1975, signed by Dr. H. which states in part: "What was done: Exploration inguinal area. "An oblique incision was made in the inguinal area, bleeders were treated by 385 ligating them with 00 plain. The inguinal area was explored. The saphenous vein was dissected out. It looked like it was clotting and we clamped it and removed a portion of it and it turned out to be the femoral artery located close to the surface." The foregoing summation demonstrates that, at the time the court below sustained defendant's motion for summary judgment, there was an unresolved question of fact to be determined by the jury as to whether Nona knew or should have known, through the exercise of reasonable diligence, of the existence of the injury or condition complained of within two years prior to December 27, 1977, the date this action was commenced. II. We next consider when, under the provisions of 76 O.S. 1981, § 18, the limitations therein set forth begins to run. Reduced to its essence for the purpose of resolving this issue, § 18 provides: "An action for damages for injury or death ... shall be brought within two (2) years of the date the plaintiff knew, or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; ...." Section 18 does not purport to create a new cause of action. It operates as a limitation upon existing rights of action. There is not, nor can there be, a cause of action for death, injury or condition unless the death, injury or condition is wrongful. Thus, the element of wrongfulness by necessary implication is an integral and inseparable part of the "action" referred to. Likewise, it is the wrongful "death, injury or condition complained of," the existence of which the plaintiff "knew, or should have known, through the exercise of reasonable diligence" which triggers the running of the limitations in § 18. Therefore, the statute begins to run from the date when the plaintiff knew, or should have known, through the exercise of reasonable diligence of the wrongful injury complained of. III. The plaintiffs attack the constitutionality of 76 O.S. 1981, § 18 on three grounds: (a) it denies similarly situated persons equal protection of the law in violation of Amendment XIV § 1 of the United States Constitution; (b) it is a special statute of limitations, in violation of the Oklahoma Constitution, Art. V § 46; and (c) it confers special immunities upon members of the medical profession, in violation of the Oklahoma Constitution, Art. V § 51. Plaintiffs further assert that even if the statute withstands the constitutional assault, its application to the case at bar requires that it bear prospectively and runs beginning with the effective date of the statute and that the action is therefore timely brought. Title 76 O.S. 1981, § 18 provides: "An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought with in two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; provided any action brought more than three (3) years from the date of the injury shall be limited to actual medical and surgical expenses incurred or to be incurred as a direct result of said injury, provided, however, the minority or incompetency when the cause of action arises will extend said period of limitation." (Emphasis added.) It is only the emphasized portion of the statute which is here at issue. We express no view as to the constitutionality of that portion of the above statute which is not emphasized. Under Art. V § 51 of the Oklahoma Constitution, the Legislature is forbidden from creating special legislation that grants any association, corporation or individual any exclusive rights, privileges, or immunities within this State. Art. V § 46 of the Oklahoma Constitution provides, insofar as pertinent: 386 "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: * * * * * * [For] limitation of civil or criminal actions; * * ." The Fourteenth Amendment to the United States Constitution provides, in pertinent part: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." This Court recognized in Loyal Order of the Moose, Lodge 1785 v. Cavaness[2] that the Legislature has wide latitude to create statutory classifications, but to withstand constitutional scrutiny, we held that any discrimination must withstand important legislative objectives and above all be reasonable. There the Court struck down a statute which imposed a time limitation upon a right of action against an architect, builder, contractor or "any person performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement," not because of the grouping of like callings into a class for special legislative treatment, but because of the omission from the group of owners and tenants, the omission of whom did not rest upon some reasonable consideration of differences between owners and tenants on the one hand, and those specifically included within the legislatively created class on the other hand, which differences bore a fair and substantial relation to the object of the legislation. The Court further said: "Nor is the classification founded upon a reasonable distinction or difference necessitated by state policy. A statute making such an unsupportable classification fails to meet the requirements of the equal protection guaranty." The case before us is distinguishable from Cavaness in that here it is the legislative grouping of health care providers into a class for special legislative treatment, and not the omission of certain health care providers from the class that is constitutionally challenged. Thus a clear distinction is drawn.[3] The constitutional powers and limitations of state legislatures to classify like businesses or callings for special legislative treatment is summarized in 16A Am Jur 2d, Constitutional Law § 775 in the following language: "Since the establishment of regulations of a particular trade or business essential to the public health and safety is within the legislative capacity of the state in the exercise of its police power, the classification of the subjects of such legislation, so long as it has a reasonable basis and is not merely an arbitrary selection without real difference between the subjects included and those omitted from the law, does not deny to any person the equal protection of the laws. Legislation affecting alike all persons pursuing the same business under the same conditions is not class legislation. Classification of employees' occupations by statute may be based not only on the character of the employees, but on the nature of the employment; and a statute dealing with employees in a particular line of business does not effect arbitrary discrimination merely because operation of the statute is not extended to other lines of business having their own circumstances and conditions. But if some persons engaged in a calling or business are subjected to special burdens or favored by special privileges while other persons engaged in the same calling or business are not so treated, the legislation is based upon unconstitutional discrimination. "It is primarily for the state to select the kinds of business which shall be the subject of regulation. The legislature has wide discretion, and, as in other cases, legislative discretion in the matter of classification of businesses is not subject to judicial review unless such discretion appears to have been exercised arbitrarily and without any show of good reason. 387 And the general rule that the legislature, dealing with practical exigencies and guided by experience, may make classifications without including all cases which it might possibly reach, is free to recognize degrees of harm, and may confine its restrictions to those classes of cases where the need is deemed to be greatest, is applicable to classifications of occupations. There is no prohibition in the Federal Constitution against a state making different regulations for different kinds of businesses or occupations. If a business is subject to regulation by the state, specific regulations for that one kind of business, which may be necessary for the protection of the public, can never constitute a just ground of complaint because similar restrictions are not imposed upon another business of a different kind."[4] We hold that the classification of health care providers for the purpose of legislatively limiting the time within which an action against them may be brought, as set forth in 76 O.S. 1981, § 18, has not been shown to be such an arbitrary exercise of legislative discretion or without any show of good cause as would impel this Court to declare it unconstitutional. The statute is not unconstitutional. Title 76 O.S. 1981, § 18 was effective April 8, 1976. It is well established in this jurisdiction that a statute of limitations, insofar as it affects rights of action in existence, when the statute is passed, shall be held, in the absence of a contrary provision in the legislation, to begin when the cause of action was first subjected to its operation. Magnolia Petroleum Co. v. Watkins, 177 Okl. 30, 57 P.2d 622 (1936).[5] Taking the materials submitted in support of the motion for summary judgment in the light most favorable to plaintiff, she did not learn and was unable to discover with reasonable diligence the existence of the injuries for which she sought compensation until February 6, 1976. Assuming that to be the case under 76 O.S. 1981, § 18, she had two years from February 6, 1976, within which to bring this action. It was filed, as we have already noted, on December 27, 1977. If the factual disputes regarding when plaintiff knew or should have learned of her injuries are resolved by the jury in the plaintiff's favor, this action was timely brought. Judgment reversed and cause remanded with directions to proceed further consistent with the views herein expressed. BARNES, C.J., and IRWIN, HODGES and DOOLIN, JJ., concur. SIMMS, V.C.J., and OPALA and WILSON, JJ., concur in part and dissent in part. HARGRAVE, J., did not participate. NOTES [1] In Flowers v. Stanley, Okl., 316 P.2d 840 (1957), we held that where the period of limitations starts when the claimant knew, or, in the exercise of reasonable diligence would have discovered the act which gives rise to the claim, the beginning of the running of the statute of limitations is usually to be determined from the facts and circumstances of the particular case; and, where these are such that reasonable men might reach conflicting opinions thereon, the issue is a question for determination by the trier of facts. Accord, H.F. Wilcox Oil & Gas Co. v. Juedeman, 187 Okl. 382, 101 P.2d 1050 (1940); Harper-Turner Oil Co. v. Bridge, Okl., 311 P.2d 947 (1957); Perkins v. U.S., (D.C.Okl. 1976), 76 F.R.D. 590. [2] Okl., 563 P.2d 143 (1977). [3] See 16A Am Jur 2d Constitutional Law § 757. [4] Accord, see Norton Johnson Buick Co. v. Lindley, 173 Okl. 93, 46 P.2d 525 (1935). [5] See also, Graner Const. Co. v. Brandt, 180 Okl. 221, 68 P.2d 788 (1937); Ford Motor Co. v. McDonald, 183 Okl. 130, 90 P.2d 404 (1939); State v. Eddie, 195 Okl. 26, 154 P.2d 763 (1945); Gasteam Radiator Co. v. United States F. & G. Co., Okl., 471 P.2d 883 (1970); Midcontinent Casualty Co. v. P & H Supply, Inc., Okl., 490 P.2d 1358 (1971). Although no contention is seriously argued that the new statute of limitation unreasonably shortened the time within which Mrs. McCarroll could bring her action and therefore the previous statute should have been applied, we notice that it is within the power of the Legislature to pass a statute of limitations, or to change the period of limitations previously fixed, and to make such statute or changes applicable to existing (but not yet filed) causes of action, provided a reasonable time is given by the new law for the commencement of suit before the bar takes effect. 51 Am.Jur.2d Limitations of Actions § 57; City of Claremore v. Oklahoma Tax Commission, 197 Okl. 223, 169 P.2d 299, 304 (1946); Baccus v. Banks, 199 Okl. 647, 192 P.2d 683 (1948), app. dismd.; Reeder v. Banks, 333 U.S. 858, 68 S.Ct. 743, 92 L.Ed. 1138.	{ "pile_set_name": "FreeLaw" }
345 S.W.3d 896 (2011) In the Interest of H.R.W. and R.H.W. A.K.M. (mother), Appellant, v. L.M.M., Respondent. No. WD 73381. Missouri Court of Appeals, Western District. August 23, 2011. Anastacia R. Adamson, Kansas City, Michael J. Belfonte, Kansas City, MO, for appellant. James A. Waits, Kansas City, MO, for respondent. Before: VICTOR C. HOWARD, P.J., and ALOK AHUJA and KAREN KING MITCHELL, JJ. ORDER PER CURIAM: A.K.M. appeals from a judgment terminating her parental rights to her minor sons, H.R.W. and R.H.W. The trial court terminated A.K.M.'s parental rights in an adoption action under Chapter 453, RSMo, on the grounds of neglect and A.K.M.'s failure to rectify the conditions which led to the juvenile court's initial assumption of jurisdiction over the children. A.K.M. contends that the court erred because: the grounds on which the circuit court relied to terminate her parental rights were unsupported by the evidence; the court's determination that termination was in the children's best interests was unsupported by the evidence; the court improperly adopted the proposed findings of fact and conclusions of law prepared by the Petitioner; the court erroneously failed to permit the children's great aunt and uncle to intervene; and the court failed to follow §§ 211.455.3 and 211.447.3, RSMo. We affirm. Because a published opinion would have no precedential value, an unpublished memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).	{ "pile_set_name": "FreeLaw" }
817 F.2d 754 Ramirezv.I.N.S. 86-4449, 86-4450 United States Court of Appeals,Fifth Circuit. 4/15/87 1 I.N.S. AFFIRMED 2 --------------- Fed.R.App.P. 34(a); 5th Cir.R. 34.2.	{ "pile_set_name": "FreeLaw" }
USCA1 Opinion March 30, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-1139 MARGRET REY, Plaintiff, Appellee, v. RICHARD G.D. LAFFERTY, ET AL., Defendants, Appellants. ____________________ No. 92-1177 MARGRET REY, Plaintiff, Appellant, v. RICHARD G.D. LAFFERTY, ET AL., Defendants, Appellees. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge] ___________________ ____________________ Before Selya, Cyr and Boudin, Circuit Judges. ______________ ____________________ H. Joseph Hameline with whom Andrea M. Fish and Mintz, Levin, __________________ ______________ ______________ Cohn, Ferris, Glovsky & Popeo, PC were on brief for appellee Rey. _________________________________ Charles Donelan with whom Katherine E. Perrelli, Kristen G. ________________ _______________________ ___________ McGurn and Day, Berry & Howard were on brief for appellants Lafferty, ______ ___________________ et al. ____________________ March 30, 1993 ____________________ CYR, Circuit Judge. Margret Rey, who owns the copy- CYR, Circuit Judge. _____________ right to the "Curious George" children's books, challenges an award of damages to Lafferty Harwood & Partners ("LHP") for Rey's withholding of approval of various ancillary products utilizing the "Curious George" character under their 1983 licensing agree- ment. LHP appeals the district court order awarding Rey damages and future royalties on certain other "Curious George" products. We affirm in part and reverse in part. I I BACKGROUND BACKGROUND __________ "Curious George" is an imaginary monkey whose antics are chronicled in seven books, written by Margret and H.A. Rey, which have entertained readers since the 1940s. A mischievous personality consistently lands Curious George in amusing scrapes and predicaments. The more recent "monkey business" leading to the present litigation began in 1977 when Margret Rey granted Milktrain Productions an option to produce and televise 104 animated "Curious George" film episodes. The option agree- ment was contingent on Milktrain's obtaining financing for the film project, and adverted to a potential agreement to license _________ "ancillary products," based on the "Curious George" character, once the 104 film episodes had been completed. 3 A. The Original Film Agreements. A. The Original Film Agreements. ____________________________ Milktrain approached LHP, a Canadian investment firm, to obtain financing for the project. LHP agreed to fund the venture by selling shares in the project to investors (hereinaf- ter: the "Milktrain Agreement"); LHP and its investors were to divide a 50% share of Milktrain's profits on the films and on any future ancillary products. With the financing commitment in place, Rey granted Milktrain and LHP a limited license "to produce (within a two- year period from the date of exercise) one hundred and four (104) four minute film episodes based on the ["Curious George"] charac- ter solely for broadcast on television" (hereinafter: the "Rey License"). Rey was to receive a fee for assisting with the editing and production of the episodes, and an additional royalty amounting to 10% of the revenues from any film telecasts. The Rey License made no mention of ancillary product rights. Never- theless, LHP promoted the project to investors through a prospec- tus (hereinafter: the "1978 Private Placement Memorandum") which represented, inter alia, that "the production contract [with Rey] _____ ____ gives LHP the right to participate in the financing of . . . the option . . . to undertake the exploitation of other rights to 'Curious George' including manufacturing, food, licensing and other commercial areas of exploitation." B. The Revised Agreements. B. The Revised Agreements. ______________________ The film project soon encountered delays and financial setbacks. By early 1979, though only 32 of the 104 episodes had 4 been completed, the original investment funds had been virtually exhausted. In order to rescue the project and complete the films to Rey's satisfaction, LHP offered to arrange additional financ- ing. In consideration, LHP insisted that the Milktrain Agreement be revised to permit LHP to assume control of the film production process and to receive higher royalties on the completed epi- sodes. Milktrain assented to these revisions, and the revised Milktrain Agreement (hereinafter: the "Revised Milktrain Agree- ment" or "RMA") was signed on November 5, 1979. As prelude to its description of the new obligations between Milktrain and LHP, the RMA recited that Milktrain and LHP owned "the rights to Curious George which have been obtained from . . . Rey" under the Rey License. The RMA further stated that: Investors acquiring the episodes shall ac- quire all right, title and interest therein, without limitation or reserve, including the original negative . . . . LHP shall have the right to participate on an equal basis with [Milktrain] in their right of first refusal after the present agency rights expire to undertake the exploitation of other rights to Curious George, including manufacturing, food, licensing and the publi- cation of the 104 episodes in book form . . . in accordance with the rights granted to [Milktrain] and LHP [by Rey] in [the Revised Rey License].1 Simultaneously with the negotiation of the RMA, LHP proposed several changes in the Rey License, including language ____________________ 1Shortly thereafter, Milktrain apparently assigned its share of ancillary product licensing rights to LHP, leaving LHP the sole owner of these rights. 5 which would have granted LHP the immediate right to "undertake the exploitation of other rights to 'Curious George,' including manufacturing, food, licensing and the publication of the 104 episodes in book form." Rey rejected the LHP proposal in a letter to Richard G. D. Lafferty (president and C.E.O. of LHP): "I have repeatedly stated to Milktrain and to you that I will not consider negotiating such rights before the films are done." Rey did consent, however, to certain changes to the royalty arrange- ments, whereby Rey would receive a 10% share of film revenues only "after the investors have recouped [their investment] and certain soft dollar commitments . . . have been paid." On November 5, 1979, concurrently with the execution of the Revised Milktrain Agreement, a revised version of the Rey License (hereinafter: the "Revised Rey License" or "RRL") was executed, incorporating these changes, and superseding the original Rey License. The RRL recited that the original Rey License had granted Milktrain and LHP the right to produce and distribute animated "Curious George" films "for television view- ing," but made no mention of the "ancillary product" rights unsuccessfully sought by LHP. As agreed, LHP undertook to arrange further financing to complete the film project. On November 23, 1979, LHP released another prospectus (hereinafter: the "1979 Private Placement Memorandum") to which it attached the Revised Milktrain Agree- ment. The 1979 Private Placement Memorandum again stressed the prospect of eventual revenues from ancillary products but noted 6 that these rights "have yet to be negotiated" with Rey. C. The Ancillary Products Agreement. C. The Ancillary Products Agreement. ________________________________ Production of the 104 TV episodes was completed in 1982. On January 3, 1983, an Ancillary Products Agreement (or "APA") was signed by Rey and LHP, granting LHP a general right to license "Curious George" in spin-off ("ancillary") products for a renewable term of five years. The APA defined "ancillary prod- ucts" as: All tangible goods . . . excluding books, films, tapes, records, or video productions . . . . However, for stories already owned by [LHP] and which have been produced as 104 episodes under the license granted in the January, 1978 agreement and the November 5, 1979 revision of that agreement, [LHP] shall have the right to produce books, films, tapes, records and video productions of these episodes under this Agreement, subject to [Rey's] prior approval . . . which prior approval shall not be unreasonably withheld. In return for these rights, Rey was to receive one-third of the royalties on the licensed products, with certain minimum annual payments guaranteed. Rey retained the right to disapprove any ___ product, and to propose changes which would make a disapproved _______ product acceptable to her. The APA provided, inter alia, that _____ ____ Rey's approval would not be withheld "unreasonably." D. The Houghton Mifflin Contract. D. The Houghton Mifflin Contract. _____________________________ Following the execution of the Ancillary Products Agreement, LHP assigned its licensing rights to a new subsidiary, Curgeo Enterprises, which turned its attention to licensing the 7 "Curious George" character in various product forms.2 On March 27, 1984, Curgeo executed a contract with Houghton Mifflin Company to publish the 104 television film episodes in the form of a children's book series. The contract provided that Houghton Mifflin would publish at least four books, with illustrations drawn directly from the film negatives, in each year from 1984 through 1987; the contract was renewable for an additional five- year term if LHP and Rey agreed to extend the APA beyond 1987. Pursuant to the contract, Houghton Mifflin published four books each year from 1984 through 1987. In 1987, LHP notified Houghton Mifflin that it had declined to extend the APA, but that Curgeo had "entered into a new operating agreement which permits us to continue to act in the capacity in which we have been acting for the last five years. . . . [Y]ou are free to pick up your option to renew." In response, Houghton Mifflin extended its contract for the addi- tional five-year term, publishing an additional four books in 1988 and again in 1989. It ceased publication of the book series in 1990, when Rey advised that the APA had been cancelled. E. Other Product Licenses. E. Other Product Licenses. ______________________ Curgeo moved aggressively to license the "Curious George" character in other product areas as well. Beginning in 1983, the "Curious George" TV episodes were licensed to Sony ____________________ 2Curgeo Enterprises is not named in the Rey complaint; Curgeo Agencies Inc. and Curgeo Overseas, Inc., are named as defendants. We refer to the three entities collectively as "Curgeo." 8 Corporation, which transferred the images from the television film negatives to videotape. LHP takes the position that the Sony video license was entered pursuant to the RRL; Rey claims it is subject to the APA. See supra at pp. 6-7. ___ _____ In 1983, Curgeo licensed "Curious George" to Eden Toys Inc., which proposed to market a "Curious George" plush toy. In the beginning, Rey rejected Eden's proposed designs for the toy, but Eden eventually proposed several versions which were accept- able to Rey. The plush toy was marketed from 1983 to 1990, but experienced poor sales and generated less revenue than expected. Eden blamed the poor market performance on Rey's alterations to Eden's original design proposals. In 1987, Curgeo received a commitment from Sears, Roebuck to market "Curious George" pajamas through the Sears catalog. The Sears pajama project promised high returns, but catalog deadlines necessitated immediate approval of a product design. Glen Konkle, Curgeo's agent, brought Rey a prototype pajama and a flat paper sketch of "Curious George" which had been proposed as the basis for the final pattern. Rey rejected the proposal, complaining that the pajama material was "hard, ugly [and] bright yellow," and that the sketch of "Curious George" was "plump" and "not recognizable." The catalog deadline passed and the pajama manufacturers withdrew their bids. In addition, Beach Paper Products, which had orally agreed to license "Curious George" for a line of paper novelties, withdrew its offer after learning that "Curious George" products would not receive expo- 9 sure in the Sears catalog. In 1988, Curgeo licensed "Curious George" to DLM Inc., which intended to use the "Curious George" character in a trilogy of educational software. Rey approved the software in principle, and production began in July 1988. In August 1988, however, DLM withdrew its plans to complete the "trilogy" after Rey telephoned DLM's project director and harshly criticized the design of the first software product and the accompanying manual developed by DLM. F. The Ancillary Products Agreement Renewal. F. The Ancillary Products Agreement Renewal. ________________________________________ Due in part to these product rejections, LHP earned less money than it anticipated from ancillary products. When the APA came up for renewal in January 1988, LHP declined to exercise its option for an additional five-year term. Instead, the parties agreed to renew on a month-to-month basis, terminable by either party on one month's notice. Rey's royalty rate was increased to 50% (effective January 3, 1988), but with no guaran- teed minimum payment. On April 10, 1989, Rey terminated the APA. LHP responded by advising that Curgeo would "continue to adminis- ter those licenses which [remained] outstanding and report to you from time to time accordingly." LHP thereupon continued to market the Sony videos and to publish the television films in book form under the Houghton Mifflin agreements. G. "Curious George" Goes to Court. G. "Curious George" Goes to Court. _____________________________ On February 8, 1991, Rey filed suit against Lafferty, 10 Curgeo and LHP, in connection with LHP's continuing, allegedly unauthorized production of the Houghton Mifflin books and Sony videos. Rey's complaint alleged violations of federal copyright, trademark and unfair-competition statutes, breach of contract, and violations of Mass. Gen. L. ch. 93A ("chapter 93A"); it sought to enjoin further violations and to recover unpaid royal- ties on the books and videos. LHP countersued, claiming that Rey unreasonably had withheld approval of various products while the APA remained in force. The LHP complaint alleged breach of contract, interference with contractual and advantageous business relationships, and violation of chapter 93A. After a four-day bench trial, the district court found for Rey on her claims for breach of contract, ruling that the book and video licenses were governed by the APA and that Rey was entitled to recover $256,327 in royalties. The court found for LHP on several LHP counterclaims, however, holding that Rey unreasonably had withheld approval of, inter alia, the Sears _____ ____ pajamas, the DLM software, and Eden's original plush toy design. LHP was awarded $317,000, representing lost profits and conse- quential damages resulting from Rey's rejection of these prod- ucts. II II DISCUSSION DISCUSSION __________ "Under Massachusetts law, the 'interpretation of a contract is ordinarily a question of law for the court'." 11 Fairfield 274-278 Clarendon Trust v. Dwek, 970 F.2d 990, 993 (1st _________________________________ ____ Cir. 1992) (quoting Edmonds v. United States, 642 F.2d 877, 881 _______ _____________ (1st Cir. 1981)); see also, e.g., Lawrence-Lynch Corp. v. Depart- ___ ____ ____ ____________________ _______ ment of Environmental Mgmt., 392 Mass. 681, 682, 467 N.E. 2d 838, ___________________________ 840 (1984); Sparks v. Microwave Associates, Inc., 359 Mass. 597, ______ __________________________ 600, 270 N.E. 2d 909, 911 (1971).3 Only if the contract is am- biguous will there arise issues of fact reviewable for clear error. See Dwek, 970 F.2d at 993; see also ITT Corp. v. LTX ___ ____ ___ ____ _________ ___ Corp., 926 F.2d 1258 (1st Cir. 1991); Fashion House, Inc. v. K _____ ___________________ _ Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989) (New York law). __________ "Contract language is usually considered ambiguous where an agreement's terms are inconsistent on their face or where the phraseology can support reasonable difference of opinion as to the meaning of the words employed and obligations undertaken," K _ Mart, 892 F.2d at 1083 (citing In re Navigation Technology Corp., ____ _________________________________ 880 F.2d 1491, 1495 (1st Cir. 1989)). The ambiguity determina- ____________________ 3The Rey License and RRL contain choice-of-law provisions providing for the application of New York law, and the Milktrain Agreement and RMA contain choice-of-law provisions providing for the application of the law of the Province of Quebec, Canada. Neither party alludes to these contractual provisions in their briefs, however, and both parties appear to have premised their trial presentations and appellate briefs on the application of Massachusetts law. In accordance with their choice, and since a "reasonable relation" exists between their contract and the Massachusetts forum, see Carey v. Bahama Cruise Lines, 864 F.2d ___ _____ ____________________ 201, 206 (1st Cir. 1988), we apply Massachusetts law. See Borden ___ ______ v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991) _________________________ ("[w]here . . . the parties have agreed about what law governs, a federal court sitting in diversity is free, if it chooses, to forego independent analysis and accept the parties' agreement"); accord Doherty v. Doherty Ins. Agency, Inc., 878 F.2d 546, 547 ______ _______ __________________________ (1st Cir. 1989); Moores v. Greenberg, 834 F.2d 1105, 1107 n.2 ______ _________ (1st Cir. 1987). 12 tion itself is subject to plenary review, id., and parol evidence ___ may not be used to "create ambiguity where none otherwise ex- ists." See Boston Car Co. v. Acura Auto. Div., 971 F.2d 811, 815 ___ ______________ ________________ (1st Cir. 1992) (citing ITT Corp., 926 F.2d at 1261). _________ A. The Book/Video Claims. A. The Book/Video Claims. _____________________ The Rey complaint alleged that LHP's only right to publish the "Curious George" TV episodes in book and video form derived from the Ancillary Products Agreement, was subject to the APA's royalty provisions, and expired when Rey terminated the APA in 1989. LHP responds that the book and video rights to the TV episodes were governed by the parties' other agreements, specifi- cally the Revised Rey License, which (according to LHP) incor- porated the Revised Milktrain Agreement. According to LHP, these other agreements continued in effect notwithstanding termination of the APA; moreover, these agreements provided that no royalties were due Rey before LHP's investors recovered their investment in the 104 TV films.4 The district court accepted the interpreta- tion urged by Rey, based on the language of the various contracts and the circumstances surrounding their execution. We agree. 1. The Houghton Mifflin Books. 1. The Houghton Mifflin Books. __________________________ The Ancillary Products Agreement provided, inter alia, _____ ____ that for stories already owned by [LHP] . . . which have been produced as 104 episodes ____________________ 4LHP contends that $250,000 (U.S.) had yet to be recovered by the investors at the time the present action was commenced. 13 under the license granted in the January, 1978 agreement and the November 5, 1979 revi- sion of that agreement, [LHP] shall have the right to produce books, films, tapes, records _____ and video productions of these episodes under _____ ___________ _____ this Agreement, subject to [Rey's] prior ____ _________ approval . . . (Emphasis added.) Throughout the document the term "this Agree- ment," utilizing the capital letter "A", refers to the APA. Thus, the plain language of the operative provision clearly con- templates that the APA was to govern the licensing of any books and "video productions" arising from the 104 films. See Barilaro ___ ________ v. Consolidated Rail Corp., 876 F.2d 260, 265 n.10 (1st Cir. ________________________ 1989) ("it is . . . 'a general rule in the construction of a written instrument that the same word occurring more than once is to be given the same meaning unless a different meaning is demanded by the context.'") (quoting Dana v. Wildey Sav. Bank, ____ ________________ 294 Mass. 462, 466, 2 N.E.2d 450, 453 (1936)). LHP argues, nonetheless, that a narrow meaning must be ascribed to the quoted APA language, insofar as the RMA purported to grant investors "all right, title and interest [to the 104 film episodes], without limitation or reserve, including the original negative." The problem with LHP's argument is that Rey never signed the RMA. LHP concedes this, but argues that the RMA and RRL were negotiated and executed simultaneously by LHP, and must be interpreted in pari materia. See, e.g., Interstate __ ____ _______ ___ ____ __________ Commerce Comm'n v. Holmes, slip op. at 10-11 (1st Cir. Jan. 11, _______________ ______ 1993) (escrow agreement and consent decree read together, as "synergistic" documents); accord Chelsea Indus., Inc. v. Flor- ______ _____________________ _____ 14 ence, 358 Mass. 50, 55-56, 260 N.E.2d 732 (1970); Thomas v. ____ ______ Christensen, 12 Mass. App. Ct. 169, 422 N.E.2d 472, 476 (1981). ___________ The Massachusetts courts sometimes have held that the party to be bound need not have signed each component part of an integrated agreement where it is the "sense" of the transaction, as support- ed by reliable indicia in the writings which were signed by the party to be bound, that a unitary transaction was contemplated by the parties. See Chase Commercial Corp. v. Owen, 32 Mass. App. ___ ______________________ ____ Ct. 248, 588 N.E.2d 705 (1992) (holding that non-signatory guarantor was bound by jury trial waiver contained in loan and security agreements, though guarantee agreement contained no such waiver, where "the three documents were part of one transac- tion"); see also Gilmore v. Century Bank & Trust Co., 20 Mass. ___ ____ _______ _________________________ App. Ct. 49, 50, 477 N.E.2d 1069, 1073 (1985) (holding that non- signatory trustee could recover for breach of workout agreement, even though not a party to its terms, based on "sense" of agree- ment, and "such factors as simultaneity of execution, identity of subject matter and parties, cross-referencing, and interdepen- dency of provisions"). On this theory, LHP contends, Rey's signature on the RRL bound her to the language of the RMA, and authorized LHP to transfer the television episodes to book form, using available technology. However, where contract language contains no unambigu- ous indicia of the parties' mutual intent to enter into a unitary transaction, we review for "clear error" the fact-dominant deter- mination whether their separate documents were intended by the 15 parties as an integrated agreement. Interstate Commerce Comm'n __________________________ v. Holmes, slip op. at 10-11; Holmes Realty Trust v. Granite City ______ ___________________ ____________ Storage Co., 25 Mass. App. Ct. 272, 517 N.E.2d 502, 504 (1988) ____________ ("it would be open to a fact finder . . . to treat [separate ____ __ _ ____ ______ documents] as intended by the parties to be parts of a single transaction") (emphasis added); Fred S. James & Co. v. Hoffmann, ___________________ ________ 24 Mass. App. Ct. 160, 163, 507 N.E.2d 269, 271 (1987). In the present case, we find no "clear error" in the district court's determination that the parties contemplated separate (though related) transactions for film rights and ________ financing. The evidence cut both ways. On the one hand, the RMA and the RRL were executed at approximately the same time, with some overlap in their internal references and subject matter. On the other hand, their respective provisions are less in unison than parallel.5 Most importantly, the written and circumstan- tial indicia sharply contradict any suggestion of a meeting of the minds relating to the licensing of ancillary products. Rey did not participate in negotiating the RMA, did not sign it, was ____________________ 5Even if the RMA and RRL were jointly construed, their language might point away from the interpretation urged by LHP. Section 2(i) of the RMA granted LHP's investors "all right, title and interest" in the 104 T.V. episodes, "without limitation or reserve," but 1(a) tempered this grant by defining the rights as "described herein, and set forth in Schedule 'A' [the RRL]." This language suggests that the "right, title, and interest" language of the RMA was meant only to confirm and restate, and _______ _______ not to expand upon, the RRL's parallel, but more limited, grant of rights. Cf. Fred S. James & Co., 24 Mass. App. Ct. at 164, ___ ____________________ 507 N.E.2d at 272 (finding no conflict between simultaneously executed instruments, where their language and the extrinsic evidence suggested independent obligations arising from simulta- neous contracts). 16 never made a party to its terms, and expressly refused, during _________ _______ ______ the RRL negotiations, to license "Curious George" for the "ancil- ___ ___ ____________ __ _______ _______ ______ ___ ___ ______ lary" purposes now urged by LHP. See supra at p. 6. Moreover, ____ ________ ___ _____ __ ___ ___ _____ the 1979 Private Placement Memorandum prepared by LHP acknowledg- es Rey's nonacceptance by attaching the RRL as an exhibit and noting that ancillary product rights "have yet to be negotiated" with Rey. Finally, the parties' intention to exclude the Hough- ton Mifflin books from the RRL, and their intention to cover them in the APA, are corroborated by their subsequent course of dealing: among other things, the record shows that LHP paid Rey royalties on the books and videos on several occasions at the 33% __ ___ ___ rate required under the APA, rather than the 10% rate prescribed ____ ________ _____ ___ ___ by the RRL, and that Curgeo expressly keyed the dates of the Houghton Mifflin contract to the term (and anticipated renewal __ ___ ____ ___ ___________ _______ term) of the Ancillary Products Agreement: ____ __ ___ _________ ________ _________ By September 30, 1987, Curgeo [will] inform [Houghton Mifflin] in writing as to whether Curgeo has exercised its option to exploit the character "Curious George" through December 31, 1993 and, if Curgeo has exer- cised said option, Curgeo shall give the Publisher the option to extend this Agreement through December 31, 1993. It was for the district court to balance the evidence in the first instance, see Holmes Realty Trust, 517 N.E. 2d at ___ ___________________ 504, and we discern no sound reason to disagree with its find- ings, particularly on "clear error" review. See Interstate ___ __________ Commerce Comm'n v. Holmes, slip op. at 13 (citing Cumpiano v. _______________ ______ ________ Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990)) ___________________________ 17 (even if proffered interpretation did "[give] rise . . . to another plausible view of the evidence," reversal not warranted on "clear error" review).6 To sum up: Since the district court supportably found that the RRL and the RMA are separate, though related, agree- ments, the RMA's purported grant of rights did not bind Rey, who was bound only by the grant of rights she endorsed in the RRL and APA. The RRL contained no grant of rights to produce the Hough- ton Mifflin books, and the APA, which granted the right "to produce books . . . of these episodes," obligated LHP to pay Rey royalties on the books without regard to whether LHP's investors had recouped their investment on the television film project. Thus, the district court did not err in finding that LHP's withholding of the Houghton Mifflin book royalties was wrongful, and we affirm its ruling on this point. ____________________ 6We reject LHP's further contention that Rey's failure to protest publication of the four Houghton Mifflin books in 1990 estops her from cancelling the book and video contracts under the APA. Where more than one inference fairly may be drawn from the evidence and an estoppel ruling turns on an issue of fact, we review for clear error. United States v. Marin, 651 F.2d 24, 29 ______________ _____ (1st Cir. 1981); Morgan Guaranty Trust Co. v. Third Nat'l Bank, __________________________ _________________ 529 F.2d 1141, 1144 (1st Cir. 1976). In our view, Rey's conduct does not require an inference that she acquiesced in the publica- tion of these books under the APA. Rather, Rey protested the publication of the four books by filing suit shortly after realizing the unauthorized nature of Houghton Mifflin's continued publication. The district court apparently found that Rey's one- year delay, dating from the first unauthorized publication until the filing of Rey's suit for injunctive relief, was not "unrea- sonable" in the circumstances, and we decline to disturb its findings on this issue. 18 2. The Sony Videos. 2. The Sony Videos. _______________ LHP's claim to the Sony video royalties is more compli- cated: assuming the videos were not covered by the contractual clause in the RMA, see supra Part II.A.1., might they nonetheless ___ _____ have been covered by the grant of rights in the RRL, which licensed LHP to produce the 104 episodes "for television view- ___ __________ _____ ing"? The district court thought not: the parties' "reference ___ to television viewing . . . in a licensing agreement . . . does not include [video technology] . . . which probably was not in existence at the time that the rights were given." a. "New Uses" and Copyright Law. a. "New Uses" and Copyright Law. ___________________________ For purposes of the present appeal, we accept the uncontested district court finding that the relevant video technology "was not in existence at the time that the rights" were granted under the RRL in January 1979. Consequently, it must be inferred that the parties did not specifically contem- plate television "viewing" of the "Curious George" films in videocassette form at the time the RRL was signed. Such absence of specific intent typifies cases which address "new uses" of licensed materials, i.e., novel technological developments which ____ generate unforeseen applications for a previously licensed work. See Melville B. Nimmer and David Nimmer, 3 Nimmer on Copyright ___ ___________________ 10.10[B] at 10-85 (1992) ("Nimmer") ("the . . . fact that we ______ are most often dealing with a later developed technological process (even if it were known in some form at the time of execution) suggests that the parties' ambiguous phraseology masks 19 an absence of intent rather than a hidden intent which the court simply must 'find'"). Normally, in such situations, the courts have sought at the outset to identify any indicia of a mutual general intent to _______ apportion rights to "new uses," insofar as such general intent can be discerned from the language of the license, the surround- ing circumstances, and trade usage. See, e.g., Murphy v. Warner ___ ____ ______ ______ Bros. Pictures, Inc., 112 F.2d 746, 748 (9th Cir. 1940) (grant of ____________________ "complete and entire" motion picture rights to licensed work held to encompass later-developed sound motion picture technology); Filmvideo Releasing Corp. v. Hastings, 446 F. Supp. 725 (S.D.N.Y. _________________________ ________ 1978) (author's explicit retention of "all" television rights to licensed work, in grant of motion picture rights predating tech- nological advances permitting movies to be shown on television, included retention of right to show motion picture on televi- sion). Where no reliable indicia of general intent are discern- _______ ible, however, courts have resorted to one of several interpre- tive methods to resolve the issue on policy grounds. Under the "preferred" method, see 3 Nimmer at 10-85, ___ ______ recently cited with approval in SAPC, Inc. v. Lotus Development __________ _________________ Corp., 921 F.2d 360, 363 (1st Cir. 1990), the court will con- _____ clude, absent contrary indicia of the parties' intent, that "the licensee may properly pursue any uses which may reasonably be said to fall within the medium as described in the license." 3 Nimmer at 10-86. Under this interpretive method, the courts will ______ presume that at least the possibility of nonspecific "new uses" 20 was foreseeable by the contracting parties at the time the licensing agreement was drafted; accordingly, the burden and risk of drafting licenses whose language anticipates the possibility of any particular "new use" are apportioned equally between licensor and licensee. See, e.g., Bartsch v. Metro-Goldwyn- ___ ____ _______ ______________ Mayer, Inc., 391 F.2d 150, 155 (2d Cir.), cert. denied, 393 U.S. ___________ _____ ______ 826 (1968) ("[i]f the words [of the license] are broad enough to cover the new use, . . . the burden of framing and negotiating an exception should fall on the grantor" of the licensed rights). An alternative interpretive method is to assume that a license of rights in a given medium (e.g., ____ 'motion picture rights') includes only such uses as fall within the unambiguous core meaning of the term . . . and excludes any uses which lie within the ambiguous penumbra (e.g., exhibition of motion picture film on ____ television). Thus any rights not expressly (in this case meaning unambiguously) granted are reserved. See 3 Nimmer at 10-85; see also Bourne Co. v. Walt Disney Co., ___ ______ ___ ____ __________ _______________ 1992 Copyr. L. Rep. (CCH) 26,934 (S.D.N.Y. 1992) ("if the disputed use was not invented when the parties signed their agreement, that use is not permitted under the contract"). This method is intended to prevent licensees from "'reap[ing] the entire windfall' associated with the new medium," Cohen v. _____ Paramount Pictures Corp., 845 F.2d 851, 854 (9th Cir. 1988) _________________________ (quoting Neil S. Nagano, Comment, Past Software Licenses and the ______________________________ New Video Software Medium, 29 U.C.L.A. L. Rev. 1160, 1184 (- ___________________________ 1982)), and is particularly appropriate in situations which 21 involve overreaching or exploitation of unequal bargaining power by a licensee in negotiating the contract. See, e.g., Bartsch, ___ ____ _______ 391 F.2d at 154 & n.2 (citing Ettore v. Philco Television Broad- ______ ________________________ casting Corp., 229 F.2d 481 (3d Cir. 1955) (suggesting narrow _____________ construction where licensor was not "an experienced businessman" and had no "reason to know of the . . . potential" for new uses at the time he signed the relevant agreement)). It may also be appropriate where a particular "new use" was completely unfore- seeable and therefore could not possibly have formed part of the _____ ___ ________ bargain between the parties at the time of the original grant. Cohen, 845 F.2d at 854; Kirke La Shelle Co. v. Paul Armstrong _____ _____________________ _______________ Co., 263 N.Y. 79, 188 N.E. 163 (1933). Obviously, this method ___ may be less appropriate in arm's-length transactions between sophisticated parties involving foreseeable technological devel- opments; in such situations, narrow construction of license grants may afford an unjustifiable windfall to the licensor, who would retain blanket rights to analogous "new uses" of copyright material notwithstanding the breadth of the bargained-for grant. See generally 3 Nimmer at 10-85 ("it is surely more arbitrary and ___ _________ ______ unjust to put the onus on the licensee by holding that he should have obtained a further clarification of a meaning which was already present than it is to hold that the licensor should have negated a meaning which the licensee might then or thereafter rely upon.").7 ____________________ 7The problem becomes particularly acute when the analogous technology develops so rapidly as to supplant the originally contemplated application of the licensed work, rendering the 22 b. Video Technology as "New Use". b. Video Technology as "New Use". ____________________________ These fine-tuned interpretive methods have led to divergent results in cases considering the extension of televi- sion rights to new video forms. Thus, for example, in Rooney v. ______ Columbia Pictures Industries, Inc., 538 F. Supp. 211 (S.D.N.Y.), __________________________________ aff'd, 714 F.2d 117 (2d Cir. 1982), cert. denied, 460 U.S. 1084 _____ ____ ______ (1983), the court determined that a series of contracts granting motion picture distributors a general license to exhibit plain- tiffs' films "by any present or future methods or means" and "by __ ______ any means now known or unknown" fairly encompassed the right to ___ _____ __ _______ distribute the films by means of later-developed video technol- ogy. The contracts in question gave defendants extremely broad rights in the distribution and exhibition of pre-1960 films, plainly _______ intending that such rights would be without _________ limitation unless otherwise specified and further indicating that future technological advances in methods of reproduction, trans- mission and exhibition would inure to the benefit of defendants. (Emphasis added.) Similarly, in Platinum Record Co. v. ______________________ Lucasfilm, Ltd., 566 F. Supp. 226, 227 (D. N.J. 1983), the court ________________ ____________________ parties' original bargain obsolete. Thus, for example, broad grants of "motion picture rights," made before technological advances permitted the combination of moving images with sound, _____ later were held, typically, to encompass the rights to sound motion picture technology; a narrower holding would have left the original license virtually worthless, despite its broad language, and would have provided the licensor with an undeserved windfall. See, e.g., Murphy, 112 F.2d at 748; L.C. Page & Co. v. Fox Film ___ ____ ______ ________________ ________ Corp., 83 F.2d 196 (2d Cir. 1936). _____ 23 held that videocassette rights were encompassed by a broad synchronization license to "exhibit, distribute, exploit, market, and perform [a motion picture containing licensed musical compo- sition] . . . perpetually throughout the world by any means or methods now or hereafter known." Again, the court rested its holding on the "extremely broad and completely unambiguous" contractual grant of general rights to applications of future _______ technologies, which was held to "preclude[] any need in the Agreement for an exhaustive list of specific potential uses of the film." Id. ___ By contrast, in Cohen, 845 F.2d at 853-54, the Ninth _____ Circuit concluded that a 1969 contract granting rights to "[t]he exhibition of [a] motion picture [containing a licensed work] . . . by means of television," but containing a broad restriction __ _____ __ __________ reserving to the licensor "all rights and uses in and to said musical composition, except those herein granted," did not encom- ___ ___ pass the right to revenues derived from sales of the film in videocassette form. After deciding that "[t]he general tenor of the [contract] section [in which the granting clause was found] contemplate[d] some sort of broadcasting or centralized distribu- ____________ __ ___________ _________ tion, not distribution by sale or rental of individual copies to ____ the general public," see id. at 853 (emphasis added), the court ___ ___ stressed that the playing of videocassettes, with their greater viewer control and decentralized access on an individual basis, did not constitute "exhibition" in the sense contemplated by the contract. 24 Though videocassettes may be exhibited by using a television monitor, it does not fol- low that, for copyright purposes, playing videocassettes constitutes "exhibition by television." . . . Television requires an intermediary network, station, or cable to send the television signals into consumers' homes. The menu of entertainment appearing on television is controlled entirely by the intermediary and, thus, the consumer's selec- tion is limited to what is available on vari- ous channels. Moreover, equipped merely with a conventional television set, a consumer has no means of capturing any part of the televi- sion display; when the program is over it vanishes, and the consumer is powerless to replay it. Because they originate outside the home, television signals are ephemeral and beyond the viewer's grasp. Videocassettes, of course, allow viewing of a markedly different nature. . . . By their very essence, . . . videocassettes liberate viewers from the constraints otherwise in- herent in television, and eliminate the in- volvement of an intermediary, such as a net- work. Television and videocassette display thus have very little in common besides the fact that a conventional monitor of a television set may be used both to receive television signals and to exhibit a videocassette. It is in light of this fact that Paramount ar- gues that VCRs are equivalent to "exhibition by means of television." Yet, even that assertion is flawed. Playing a videocassette on a VCR does not require a standard televi- sion set capable of receiving television signals by cable or by broadcast; it is only necessary to have a monitor capable of dis- playing the material on the magnetized tape. Id. at 853-54. ___ Most recently, in Tele-Pac, Inc. v. Grainger, 570 _______________ ________ N.Y.S.2d 521, appeal dismissed, 580 N.Y.S.2d 201, 588 N.E.2d 99 ______ _________ (1991), the court held (one judge dissenting) that a license to 25 distribute certain motion pictures "for broadcasting by televi- sion or any other similar device now known or hereafter to be made known" did not encompass the videocassette film rights. "Transmission of sound and images from a point outside the home _______ ___ ____ for reception by the general public . . . is implicit in the _______ ______ concept of 'broadcasting by television.' Conversely, while one may speak of 'playing,' 'showing,' 'displaying,' or even perhaps 'exhibiting' a videotape, we are unaware of any usage of the term 'broadcasting' in that context." Id. at 523 (emphasis added). ___ c. Video Rights and the RRL. c. Video Rights and the RRL. ________________________ Although the question is extremely close, under the interpretive methodology outlined above we conclude that the RRL's grant of rights to the 104 film episodes "for television viewing" did not encompass the right to distribute the "Curious ___ ___ George" films in videocassette form. First, unlike the contracts in Rooney and Lucasfilm, ______ _________ the RRL contained no general grant of rights in technologies yet to be developed, and no explicit reference to "future methods" of exhibition. Compare Lucasfilm, 566 F. Supp. at 227; Rooney, 538 _______ _________ ______ F. Supp. at 228. Rather, the RRL appears to contemplate a comparatively limited and particular grant of rights, encompass- ing only the 104 film episodes and leaving future uses of "Curi- ous George" to later negotiation in the ancillary products agreement. Although the RRL conversely contains no "specific limiting language," compare Cohen, 845 F.2d at 853, we believe _______ _____ such limitation is reasonably inferable from the situation of the 26 parties and the "general tenor of the section" in which the "television viewing" rights were granted. Second, as properly noted in Cohen, "television view- _____ ing" and "videocassette viewing" are not coextensive terms. Even though videocassettes may be, and often are, viewed by means of ___ __ VCRs on home television screens, see, e.g., Sony Corp. of America ___ ____ _____________________ v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (noting ____________________________ prevalent use of videocassette recorders for "time-shifting" of commercial television programming); Rooney, 538 F. Supp. at 228 ______ ("whether the exhibition apparatus is a home videocassette player or a television station's broadcast transmitter, the films are 'exhibited' as images on home television screens"), still, as the Ninth Circuit pointed out, a "standard television set capable of receiving television signals" is not strictly required for video- cassette viewing. Cohen, 845 F.2d at 854. "[I]t is only neces- _____ sary to have a monitor capable of displaying the material on the magnetized tape." Id. Indeed, a number of non-television ___ monitors recently marketed in the United States permit videocas- sette viewing on computer screens, flat-panel displays, and the like.8 Thus, we find insufficient reliable indicia of a con- trary mutual intent on the part of Rey and LHP to warrant dis- turbing the district court's implicit determination that the ____________________ 8See, e.g., Nathalie Welch, ASK Flat-Panel Display Now ___ ____ _____________________________ Available in U.S., MacWeek, January 4, 1993 (noting availability _________________ of flat-panel LCD monitor capable of displaying VCR output); Alice Laplante & Stuart Johnston, IBM Unveils Multimedia Adapter ______________________________ Board, Software Toolkit, InfoWorld, February 12, 1990 (noting ________________________ availability of MCA adapter card permitting videocassette images to be viewed and manipulated on PS/2 color computer monitor). 27 language of the RRL is not "broad enough to cover the new use." Bartsch, 391 F.2d at 155. _______ Finally, any lingering concerns about the correctness of the district court's interpretation are dispelled by the evidence that the RRL (including its "television viewing" clause) was drafted and proposed by LHP, a professional investment firm accustomed to licensing agreements. Rey, an elderly woman, does not appear to have participated in its drafting, and, indeed, does not appear to have been represented by counsel during the larger part of the transaction. Under these circumstances, as noted supra pp. 21-22, ambiguities in the drafting instrument are _____ traditionally construed against the licensor and the drafter. See also Nimmer at 10-71 ("ambiguities [in licensing agreements] ___ ____ ______ will generally be resolved against the party preparing the instrument of transfer"); U.S. Naval Institute v. Charter Commu- _____________________ ______________ nications, Inc., 875 F.2d 1044, 1051 (2d Cir. 1989) (interpreting _______________ ambiguous copyright assignment against sophisticated drafting party); see generally, e.g., Merrimack Valley Nat'l Bank v. ___ _________ ____ _____________________________ Baird, 372 Mass. 721, 724, 363 N.E.2d 688, 690 (1977) ("as a _____ general rule, a writing is construed against the author of the doubtful language . . . if the circumstances surrounding its use and the ordinary meaning of the words do not indicate the intend- ed meaning of the language"). Accordingly, as the Sony videocassette sales were not encompassed by the RRL, but governed exclusively by the APA, we find no conflict between the terms of the documents, and we 28 affirm the award of royalties to Rey under the APA. B. The "Junk Products" Counterclaim. B. The "Junk Products" Counterclaim. ________________________________ We next turn to the LHP counterclaim that Rey breached the APA by "wrongfully withholding" approval of ancillary prod- ucts she considered "junky."9 The district court agreed with LHP, holding that [The Ancillary Products Agreement] clearly contemplated the exploitation of Curious George. . . . Based on the testimony of Ms. Stoebenau and Mr. Konkle, I find that means that there may be produced with the charac- ter, junk products, junky products. . . . Plaintiff [had] the right . . . to insist on . . . an honest and good depiction of the __ ___ character. She did not have the right to _________ disapprove the quality of the product. . . . __ ___ _______ She had [the] right to disapprove an incor- rect, improper, bad depiction of Curious George. (Emphasis added.) The court further found: [A]lthough Mrs. Rey unquestionably approved many products, I find that she improperly disapproved the Sears project for the reasons just outlined; that she was unreasonable with respect to the Eden project, and that she was so rude to Ms. Craighead as to abort the second and perhaps later trilogies of the software. (Emphasis added.) After careful consideration, we must agree with Rey that the district court misapplied the APA. The product-approval procedure under the APA required ____________________ 9LHP does not challenge the district court ruling that its counterclaims for interference with contractual and advantageous business relationships, breach of the implied covenant of good faith and fair dealing, and unfair business practices under chapter 93A were time-barred. 29 that: LHP will submit product or other information sufficient to describe the product to you for prior approval. When a product is submitted . . . we will wait two weeks before proceed- ing. If we do not receive any disapproval of the product from you within two weeks we are entitled to presume that you approve of the product. If you do disapprove of any prod- uct, you will, if feasible, suggest such changes to LHP as may render the product acceptable to you, or, if you cannot make such feasible suggestions, you may refuse to approve the product. Product approval will not be unreasonably withheld. The term "product" is not defined in the APA. It is black letter law, however, that where "the words of an agreement are plain and free from ambiguity, they must be construed in their ordinary and usual sense," Boston Edison Corp. v. FERC, 856 F.2d 361, 365 (1st ___________________ ____ Cir. 1988), and, as we have noted in another context, the word 'product,' taken in its ordinary and usual sense, "simply means 'something produced.'" See K Mart, 892 F.2d at 1085 (quoting ___ _______ Webster's Third New International Dictionary 1810 (1981)). See ___ also id. at 1084 ("where possible, words should be given their ____ ___ natural meaning, consistent with the tenor of contractual terms"); id. at 1085 ("[I]t is sufficient [to avoid ambiguity] if ___ the language employed is such that a reasonable person, reading the document as a whole and in realistic context, clearly points toward a readily ascertainable meaning"). Considered in context, we think the "ordinary and usual" meaning of the broad term "product" plainly indicates the parties' mutual intention that each article bearing the likeness of "Curious George" not _______ 30 merely the likeness itself be approved by Rey. By contrast, the narrow interpretation urged by LHP would convert the term "product" into a mere synonym for the "Curious George" mark. Nowhere does the APA intimate that the parties contemplated that the term "product" was to be given so restrictive an interpretation. Indeed, elsewhere the APA plainly precludes the narrow interpretation urged by LHP by expressly distinguishing between the mark and the "product" with which it ______________ is used. See APA p.3 ("[LHP] will not sell or authorize the sale ___ or distribution of any product on or in connection with which _______ __ __ __ __________ ____ _____ 'Curious George' is used . . .") (emphasis added); id. at 3-4 _______ ______ __ ____ ___ (referring to separate approval procedure for "apparel prod- _______ _____ ucts").10 As the APA is unambiguous in this regard, the trial ____ ____________________ 10The interpretation we adopt accords with the common-sense understanding recognized in other areas of intellectual property law. Thus, for example, in the trademark context, courts fre- quently have recognized that "the trademark holder [has] the right to control the quality of the goods manufactured and sold under its trademark," Shell Oil Co. v. Commercial Petroleum, ______________ ______________________ Inc., 928 F.2d 104 (4th Cir. 1991) (emphasis added); El Greco ____ _________ Leather Products Co. v. Shoe World, 806 F.2d 392, 395 (2d Cir. _____________________ __________ 1986), cert. denied, 484 U.S. 817 (1987)) ("The actual quality of _____ ______ the goods is irrelevant; it is the control of quality that a _______ __ trademark holder is entitled to maintain") (emphasis added); see ___ also Societe des Produits Nestle, S.A. v. Casa Helvetia, Inc., ____ ___________________________________ ____________________ 982 F.2d 633 (1st Cir. 1992) (hereinafter Produits Nestle) ________________ ("[r]egardless of the offending goods' actual quality, courts have issued Lanham Act injunctions solely because of the trade- mark owner's inability to control the quality of the goods bearing its name"). "The rationale for this requirement is that marks are treated by purchasers as an indication that the trade- mark owner is associated with the product." Kentucky Fried ______________ Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 387 _____________ ____________________________ (5th Cir. 1977). Indeed, under trademark law the protection of the mark may be lost if the licensor fails to control the quality _____ of the licensed goods; failure to control the quality of licensed goods can constitute an abrogation of the licensor's duty to protect the informational value of the mark. See Kentucky Fried ___ ______________ 31 testimony of LHP's witnesses, Cheryl Stoebenau and Glen Konkle, need not be considered. Extrinsic evidence may not be utilized to contradict the unambiguous terms of a written agreement. See ___ LTX Corp., 926 F.2d at 1263-64; Triple-A Baseball Club Assoc. v. ___ _____ ________ ________ ____ ______ Northeastern Baseball, Inc., 832 F.2d 214, 221 (1st Cir. 1987), ____________ ________ ____ cert. denied, 485 U.S. 935 (1988). _____ ______ ____________________ Chicken, 549 F.2d at 387; see also Church of Scientology Int'l v. _______ ___ ____ ___________________________ Elmira Mission of Church of Scientology, 794 F.2d 38, 43 (2d Cir. _______________________________________ 1986). LHP argues that the licensor's duty of control is less stringent where the mark is licensed for use in a context unre- lated to the licensor's original business. See Winnebago Indus., ___ _________________ Inc. v. Oliver & Winston, Inc., 207 U.S.P.Q. 335, 340 (T.T.A.B. ____ _______________________ 1980). Whatever its merit as a general matter, however, this proposition is unavailing in the present context: the APA licensed the use of "Curious George" for purposes both related _______ and unrelated to the original (literary) use of the "Curious _________ George" mark, and in no instance does it distinguish between "related" and "unrelated" uses. Similarly, under copyright law, while a licensor has no "moral right" to control the quality of licensed depictions, see ___ Gilliam v. American Broadcasting Cos., 538 F.2d 14, 24 (2d Cir. _______ ___________________________ 1976), she may insist, contractually, on approval provisions to "assure quality control and high standards in the exploitation" of her creative work." See Clifford Ross Co. v. Nelvana, Ltd., ___ _________________ _____________ 710 F. Supp. 517, 520 (S.D.N.Y.), aff'd. without opinion, 883 _______________________ F.2d 1022 (2d Cir. 1989); see also Zim v. Western Pub. Co., 573 ___ ____ ___ _________________ F.2d 1318, 1324 (5th Cir. 1978) (author has "profound interest, both professional and financial, in maintaining the quality of [published products], particularly those already published under [her] name"). Clifford Ross is particularly instructive, as it _____________ too involved a "classic literary property," the "Babar" child- ren's book character. Upholding a contractual provision which called for the copyright holder's participation in the selection of licensing agents for the character, and enjoining the issuance of further licenses absent the holder's approval, the court concluded that there would be "irreparable harm" to the future profitability of "Babar," and to the artistic reputation of the holder, "if the exploitation of Babar continue[d] without regard to [the licensor's] high standards of quality control." Clifford ________ Ross, 710 F. Supp. at 520. Compare Geisel v. Poynter Products, ____ _______ ______ _________________ Inc., 283 F. Supp. 261 (S.D.N.Y. 1968) (issuing injunction under ____ Lanham Act; finding likelihood of "irreparable harm" to author's reputation where "Dr. Seuss" toys, which author found to be "tasteless, unattractive, and of an inferior quality," were marketed as authorized by author). 32 Even though the APA's product approval clause did not preclude Rey from rejecting products based on their "junky" quality, it did obligate her to act "reasonably" in doing so. The duty to act "reasonably," like a duty to employ "best ef- forts," or to act in "good faith," is not reducible to "a fixed formula[, and] varies with the facts and the field of law in- volved." See Triple-A Baseball Club, 832 F.2d at 225 (discussing ___ ______________________ contractual "best efforts" clause); see generally Robert S. ___ _________ Summers, "Good Faith" in General Contract Law and the Sales ______________________________________________________ Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195, ___________________________________________ 201, 204-07 (1968) (discussing "good faith" as "phrase without general meaning," incapable of precise definition). In a some- what different context, the Massachusetts courts have interpreted contractual clauses preventing the "unreasonable withholding of approval" of commercial sublessees, as imposing a duty to act "in accordance with usual standards of reasonableness." See Nassif ___ ______ v. Boston & M. R. Co., 340 Mass. 557, 564, 165 N.E.2d 397, 401-02 __________________ (1966); Worcester-Tatnuck Square CVS, Inc. v. Kaplan, 33 Mass. ___________________________________ ______ App. Ct. 499, 601 N.E.2d 485 (1992). It falls to us to define "usual standards of reasonableness," in the present context, in a way which accords with the contracting parties' intent, yet avoids rendering the "reasonableness" standard either purely illusory or duplicative of more particular contractual terms. We think the APA's proscription of "unreasonable" product disapproval required, at a minimum, that Rey articulate some material reason, subjective or otherwise, for disapproving a ________ 33 product. That is to say, Rey could not withhold product approval without ascribing a reason, nor for reasons immaterial to the "Curious George" mark, its proposed use or commercial potential, or unrelated to Rey's artistic and reputational identification with the mark and ancillary products. Moreover, assuming there existed some material ground for withholding product approval, it would need to be communicated, consistent with contractual speci- fications, "within a reasonable time and in a reasonable manner, i.e., in a manner which makes it possible for [the licensee] to ____ rework the [product] in order to meet . . . approval." See Zim, ___ ___ 573 F.2d at 1324. Finally, the reason for withholding product approval could not be so preclusive as to frustrate the fundamen- _________ tal contractual assumptions on which the APA was formed. In the ___ ___________ ___________ context of this case, for example, Rey could not impose approval standards which would effectively eliminate all potential for profitable use of the "Curious George" property; the parties' mutual assent, in the APA, that Rey would be entitled to minimum royalty payments, plainly implied a mutual understanding that some licensing of the "Curious George" character would be accept- ____ able, in order to enable sales from which royalties might be generated. Cf. Steven J. Burton, Breach of Contract and the ___ ____________________________ Common Law Duty to Perform in Good Faith, 94 Harv. L. Rev. 369, __________________________________________ 403 (1980) ("discretion in performance may be exercised legiti- mately [only] for the purposes reasonably contemplated by the parties"). The district court supportably found that Rey approved 34 "many products," including the original film series, the Houghton Mifflin books, the Sony videocassettes, the first series of DLM software, and the Eden plush toys (as modified). In addition, Rey testified, without contradiction, that she had approved "children's sweatshirts, film strips, earmuffs and school bags for children . . . buttons, children's books . . . paper doll books[,] [w]rist watch, alarm clocks, wall clocks, footwear, little tennis shoes for children, . . . [b]each slippers, . . ." After reviewing the record, we are convinced that Rey did not utilize objectively unreasonable criteria for approving products under the APA. We turn to the particular product rejections challenged on appeal. 1. The Sears Pajamas. 1. The Sears Pajamas. _________________ The district court ruled that Rey acted unreasonably by basing her disapproval of the Sears project on the "junky" quality of the pajama material which would bear "Curious Georg- e's" likeness.11 As we have stated, see supra at pp. 32-34, ___ _____ the basis for the district court's finding of "unreasonableness" was insufficient as a matter of law. Rey did not unreasonably withhold approval of the Sears pajama project as unbefitting the "Curious George" image protected by her copyright, because the grounds for withholding approval were reasonably related to the ____________________ 11The district court did not address the aesthetic reasons Rey gave for rejecting the Sears project, viz., the "bright ____ yellow" color of the pajama material and the unrecognizable "plump" depiction of "Curious George." We believe these grounds were not unreasonable. 35 integrity and commercial value of her artistic creation. See ___ Clifford Ross, 710 F. Supp. at 520.12 _____________ 2. The Beach Paper Products. 2. The Beach Paper Products. ________________________ Our conclusion that Rey reasonably rejected the Sears project disposes of LHP's claim for damages relating to the Beach paper products as well. Rey never saw, much less "disapproved," the Beach paper products: as the undisputed evidence shows, Beach withdrew its proposal when the Sears project fell through; it never reached agreement with LHP or presented any product to Rey for approval. Therefore, LHP's claimed right to recover potential profits from the Beach project could be justified, if at all, only as consequential damages resulting from a wrongful _____________ _______ rejection of the Sears project. As the Sears project was not wrongfully rejected under the terms of the APA, LHP is not entitled to consequential damages related to Beach's anticipated ____________________ 12LHP nonetheless maintains that Rey's rejection of the Sears pajama project was "unreasonable," insofar as it was not communicated in a manner which "ma[de] it possible . . . to rework the [product] in order to obtain . . . approval." Zim, ___ 573 F.2d at 1324. LHP argues that time pressures inherent in the Sears catalog deadlines made the presentation of the pajamas a "one-shot deal," with "reworking" of the design impossible once rejection had occurred. It insists that the "lousy material" in the pajamas a basis for Rey's disapproval was required by federal fire safety standards; no other material was available for use in the product. Even assuming these fact-based arguments are well founded, however an assessment we are in no position to make on the present record they are beside the point: the APA's "reason- ableness" constraint did not oblige Rey to apply lower standards, or to relax her vigilance in policing ancillary uses for the "Curious George" character, merely because deadlines were tight or objections to the product could not be cured. See APA at p. 3 _____ ___ ___ ("if you disapprove of any product, you will, if feasible, __ ________ suggest such changes to [LHP] as may render the product accept- able to you") (emphasis added). 36 profits. See, e.g., Ryan v. Royal Ins. Co., 916 F.2d 731, 744 ___ ____ ____ ______________ (1st Cir. 1990) ("unless appellants can demonstrate that [appel- lee] breached a duty owed to them. . . . consequential damages will not lie"). 3. The Eden Plush Toys. 3. The Eden Plush Toys. ___________________ The district court ruled that Rey acted unreasonably with respect to the Eden plush toys project, but the court did not state whether its ruling was based on Rey's objections to the "junky" nature of the proposed product, or some other ground. We conclude, nonetheless, that remand is unnecessary in the present circumstances, see Produits Nestle, 982 F.2d at 640-41 ("when a ___ _______________ trial court misperceives and misapplies the law, remand may or may not be essential"), since LHP did not present sufficient evidence to enable a finding that Rey's actions with respect to Eden were "unreasonable." See id. at 642 (quoting Dedham Water ___ ___ ____________ Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 463 (1st Cir. ___ ____________________________ 1992)). Applying the standard articulated supra pp. 33-34, _____ "reasonableness" in the present context turns, first, on whether the reasons for rejecting a proposed product were "material." As recently noted by the court, "[t]here is no mechanical way to determine the point at which a difference becomes 'material.' Separating wheat from chaff must be done on a case-by-case basis." Produits Nestle, 982 F.2d at 641. In reference to _______________ conventional commercial products, such as the Perugina chocolates licensed in Produits Nestle, the appropriate test is whether the _______________ ground for refusing to approve a version of a licensed product is 37 one which "consumers would likely consider relevant." Id. In ___ the context of an artistic creation such as "Curious George," however, the highly subjective element of "creativity," connect- ing product and author, implicates intangible considerations such as the "total concept and feel" of the product. See Roth Greet- ___ ___________ ing Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970); see _________ _______________ ___ also Sid & Marty Krofft Television Productions, Inc. v. McDonalds ____ _______________________________________________ _________ Corp., 562 F.2d 1157 (9th Cir. 1977). We believe an author's _____ discretionary right to disapprove an ancillary product, as not in keeping with the aesthetic image the author envisions for her artistic creation, reasonably may be made to depend on product conformity, at least where, as here, conformity with the author's aesthetic standard would neither set unreasonably high levels of commercial practicality nor foreclose all prospect of profit- ________ ability on which the contract was predicated. See supra at pp. ___ _____ 33-34. The evidence before the district court clearly showed that Rey imposed a demanding aesthetic standard for the design of the Eden Toys doll.13 Eden's frustration at Rey's meticulous immersion in the details of toy design may indeed be understand- able, the more so perhaps because of the irascible terms in which Rey appears to have chosen to couch her product criticisms on occasion. Even viewing the evidence as a whole in the light most ____________________ 13For example, she relocated the felt patterns on "Curious George's" face by a few millimeters and rejected particular colors and color combinations which Eden thought would make the doll more saleable. 38 flattering to LHP, however, we cannot conclude that her proposed changes were unrelated to her legitimate artistic concerns or to her desire to protect the aesthetic integrity of the "Curious George" image. "Reasonableness" likewise requires, of course, that changes be made "within a reasonable time and in a reasonable manner, i.e., in a manner which makes it possible for [the licen- ____ see] to rework the [product] in order to meet . . . approval." See Zim, 573 F.2d at 1324. The evidence before the district ___ ___ court, which we have examined in detail, did not show that Rey's product criticisms, though caustic, were made in an unreasonable time or manner. And although the record is replete with testimo- ny that Eden and LHP grumbled about Rey's product criticisms, neither Eden nor LHP ever communicated to Rey, prior to the __ ___ present lawsuit, that her proposed changes to the Eden plush toy products were impracticable or even unduly burdensome.14 Since Rey's objections to Eden's original toy design were based on criteria reasonably related to her legitimate artistic and aesthetic concerns about the proposed ancillary product, and were communicated in a time and manner which would permit Eden to conform the product, we conclude that Rey's rejection of Eden's product designs was not "unreasonable." ____________________ 14For example, the President of Eden Toys testified: "[W]hat we tried to do, therefore, was to get very specific, and say: If you want it moved three millimeters to the left, we'll _____ move it, but let's all agree on that's where it's going to be . . ____ __ . ." (Emphasis added.) 39 4. The DLM Software. 4. The DLM Software. ________________ Finally, we consider whether Rey's alleged rudeness to Donna Craighead, the DLM project manager, amounted to an "unrea- sonable withholding of approval" of the DLM software project in violation of the APA. We conclude that it did not. As all parties agree, the licensing arrangement between DLM and LHP covered only the first installment in the proposed DLM software trilogy, the first installment was approved by Rey prior to her ________ telephone conversation with Craighead, and DLM continued to manufacture and market the first-installment software even after Rey's intemperate remarks. Given the fact that Rey's statements led to no curtailment in the production or sale of the licensed software, we are unable to discern any relevant respect in which Rey's statements to Craighead could be considered a "rejection" of the product for which LHP had issued its license to DLM. The district court apparently thought that Rey's harsh criticism of the first software installment may have discouraged DLM from undertaking "second and . . . later" installments in the proposed trilogy. Here, however, the relevant consideration is that these subsequent installments had not yet been licensed by ___ ___ ___ ____ ________ the time Rey communicated her criticism about the first software _____ product and manual. Even were Rey's criticism actionable in tort, as an "intentional interference with contractual rela- tions," see Restatement (Second) of Torts 766, or as a breach ___ of the implied good-faith duty not to interfere with LHP's per- formance under the APA, it nevertheless was not actionable in 40 contract. Under the plain terms of the APA, Rey could not "reject" products not yet licensed or presented for approval.15 LHP attempts to extend the APA's plain language by characterizing Rey's criticism of the DLM project as "essentially revok[ing] product approval [of] the DLM software concept" __________ _______ already approved by Rey. LHP does not define the term "software concept," but clearly uses it to encompass not only the first DLM product but all subsequent installments in the planned trilogy. Such an interpretation would not withstand analysis under the language of the APA, however, nor comport with the undisputed record evidence. We reject LHP's overly expansive definition of "prod- uct" in the present context. By lumping all DLM software prod- ucts under the umbrella of a single software "concept," LHP would eviscerate Rey's retained right to grant, or reasonably withhold, approval for distinct generations of software products in a particular software series. All conceptually related articles ____________ identified by LHP as part of the same series would be deemed approved, sight unseen; the policing of the integrity of the conceptual relationship presumably having ceased to be a matter of legitimate concern to Rey. Courts universally recognize that the elasticity of contract language is limited by the natural meaning of its terms and their context. See K Mart, 892 F.2d at ___ ______ ____________________ 15The district court ruled that the tort claims arising out of "most of" Rey's conduct were time-barred. LHP does not challenge this ruling. See supra n.9 and accompanying text. ___ _____ 41 1085; Boston Edison Corp., 856 F.2d at 365. LHP's interpretation ___________________ strips the "product approval" term from its context and depletes its natural meaning. CONCLUSION CONCLUSION __________ Under the APA, Rey is entitled to recover the royalties wrongly withheld on the Houghton Mifflin books and Sony videos; and we affirm the district court rulings respecting these claims. The APA likewise entitled Rey to withhold approval of licensed ancillary products on reasonable grounds; thus, LHP was not entitled to recover damages for Rey's reasonable exercise of her right to withhold approval of the Sears pajama project, the Beach paper products, the Eden Toys project, or the DLM software.16 Accordingly, the damages awards to LHP are vacated. Affirmed in part, reversed in part; costs are awarded _______________________________________________________ to Rey. ______ ____________________ 16We have considered all other arguments advanced by the parties and find them either to be wanting or, alternatively, moot. Without limiting the generality of the foregoing, we note that, because we conclude that Rey reasonably withheld approval of the Sears project, the Eden plush toys, and the DLM software, we need not consider whether LHP's estimates of lost future profits from these products were sufficiently certain and non- speculative to support an award of damages. See, e.g., Hendricks ___ ____ _________ & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir. ________________ _____________ 1991) (citing John Hetherington & Sons, 210 Mass. 8, 21, 95 N.E. ________________________ 961 (1911)); Redgrave v. Boston Symphony Orchestra, Inc., 855 ________ ________________________________ F.2d 888, 893 (1st Cir.), cert. denied, 488 U.S. 1043 (1988). _____ ______ Nor need we consider whether the damages awarded LHP for these products should have been reduced by 50%, reflecting Rey's share ___ of product royalties under the pre-1988 APA formula, or by 33%, under the revised APA formula for products licensed after January 1, 1988. 42	{ "pile_set_name": "FreeLaw" }
439 So.2d 1072 (1983) Michael E. PAWLAK, Individually and for the Minor, Michael D. Pawlak; and Patsy C. Pawlak v. Lucien BROWN and His Wife, Mary Brown, Individually and d/b/a Mid-State Honda; Mid-State Honda Company, Inc.; and American Honda Motor Company, Inc. No. 83-C-1447. Supreme Court of Louisiana. September 30, 1983. Denied.	{ "pile_set_name": "FreeLaw" }
REVISED JUNE 22, 2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 23, 2012 No. 09-30558 Lyle W. Cayce Clerk THOMAS D TURNER, Plaintiff - Appellant v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant - Appellee EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant THOMAS D. TURNER, Intervenors - Appellants v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant - Appellee Appeals from the United States District Court for the Eastern District of Louisiana Before DENNIS, OWEN, and SOUTHWICK,* Circuit Judges. DENNIS, Circuit Judge: * Judge Southwick concurs in the result only. No. 09-30558 In this employment discrimination case, the Equal Employment Opportunity Commission (EEOC) and Thomas D. Turner (collectively, “the plaintiffs”) appeal the district court’s grant of the summary judgment motion of defendant Kansas City Southern Railway Company (KCSR), dismissing all of the plaintiffs’ claims that the decisions to discipline Turner and three other African American employees for putative work-rule violations were based on race in violation of federal and state laws. We AFFIRM with respect to the claims based on the decisions to discipline Jesse Frank and Clarence Cargo because we conclude that the EEOC has failed to establish a prima facie case of discrimination with regard to those decisions. However, we REVERSE with respect to the claims based on the decisions to discipline Thomas Turner and Lester Thomas because we conclude that the plaintiffs have established a prima facie case of discrimination; and that KCSR has failed to produce admissible evidence of legitimate, nondiscriminatory reasons for those decisions. Thus, a jury question exists as to whether the decisions to discipline Turner and Thomas were impermissibly based on race. I. The discrimination claims of four KCSR employees are relevant in this appeal: Thomas Turner, Lester Thomas, Jesse Frank, and Clarence Cargo. All four are African American, and all four were disciplined between 2002 and 2004 following separate incidents involving putative violations of KCSR’s workplace rules. The plaintiffs contend that these employees were disciplined, or received more severe discipline, because of their race. The circumstances leading to the complained-of discipline are as follows: • Thomas Turner, a train engineer, was driving a train that was “shoving” a damaged engine onto a spur track when the damaged engine derailed at a low rate of speed. Turner was operating the locomotive and Thomas Schmitt, the train’s conductor, was providing Turner with instructions 2 No. 09-30558 from the ground via radio about how much more room remained before the damaged engine reached the end of the track. Turner and Schmitt blamed each other for the accident. Turner was dismissed; Schmitt, who is white, was not disciplined. • Lester Thomas, a train conductor, was performing a training exercise when the train that he was operating along with Joshua Hall, the engineer who was driving the train, failed to timely stop at a “dark signal” (a signal that did not show a green or red light). Thomas was dismissed; Hall, who is white, was dismissed but reinstated thirty days later. • Jesse Frank, a train engineer, missed a shift in order to visit his uncle in the hospital. Frank was suspended for ninety days; Frank Mouney, a white engineer who missed a shift around the same time, was suspended for five days. • Clarence Cargo, a train conductor, was operating a train that derailed after passing over an improperly locked switch. Cargo was dismissed; Scott Claiborne, the white engineer who was driving the train, was suspended. All four employees administratively appealed their discipline pursuant to their collective bargaining agreements.1 The appeals resulted in the discipline for Turner, Frank, and Cargo being reduced; Thomas, meanwhile, accepted a “leniency reinstatement” from KCSR while his administrative appeal was pending. 1 Turner and Frank appealed first to Denise L. Brame, KCSR’s Manager of Labor Relations; then to Kathleen A. Alexander, KCSR’s Director of Labor Relations; and finally to Public Law Board No. 6647, which was comprised of Merle W. Geiger, a representative of the union; Kathleen Alexander, representing KCSR; and a neutral member, Robert L. Hicks. Cargo also initially appealed to Brame and then to Alexander; but instead of pursuing his appeal to the Public Law Board, Cargo appealed to the National Railroad Adjustment Board. Public Law Boards and the National Railroad Adjustment Board are provided for by the Railway Labor Act. See 45 U.S.C. § 153; Public Law 89-456, 80 Stat. 208 (1966). 3 No. 09-30558 Independently of these administrative appeals, the plaintiffs sued KCSR regarding the initial disciplinary decisions. Turner filed suit against KCSR in federal district court in 2003, alleging that the initial decision to dismiss him was based on race in violation of 42 U.S.C. § 1981 and the Louisiana Employment Discrimination Law, La. Rev. Stat. § 23:332. In 2005, the EEOC, after conducting an investigation, filed suit against KCSR alleging that the initial disciplinary decisions against Turner, Thomas, Frank, and Cargo were based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Turner intervened in the EEOC’s suit and the district court consolidated the two cases. During the EEOC’s investigation and the first few years of discovery in this litigation, KCSR identified the employees who investigated each of the incidents as the persons responsible for making the disciplinary decisions at issue—that is, the decisions to dismiss Turner, Thomas, and Cargo, and to suspend Frank. However, in depositions later conducted by the EEOC, those employees testified that they did not make these disciplinary decisions. At least one of the employees identified J.R. Thornell, who served as KCSR’s General Superintendent of Transportation from 2002 to 2005, as the person responsible for making these decisions. Thereafter, in 2008, more than four years after these decisions were made, KCSR admitted that Thornell was the “likely” decisionmaker, but at the same time, averred that Thornell could no longer remember any of these specific decisions. KCSR later produced a declaration from Thornell stating that during the period in which these decisions were made, it was Thornell’s responsibility to make disciplinary decisions regarding KCSR engineers and conductors; that in making such decisions, it was his usual practice to review the employee’s infraction and employment history; but that he had no specific recollection of these decisions; and that he may have delegated 4 No. 09-30558 the decisions to his assistant. The record contains no testimony from Thornell’s assistant, A.J. Sonnier, who died during the litigation in this case. KCSR moved for summary judgment; the district court granted the motion and dismissed all of the plaintiffs’ claims. Turner v. Kan. City S. Ry. Co., 622 F. Supp. 2d 374, 378 (E.D. La. 2009).2 The district court adopted most of KCSR’s summary judgment arguments and concluded that the plaintiffs had failed to establish a prima facie case of discrimination under the first step of the McDonnell Douglas burden-shifting framework. Id. at 386-89. The district court also concluded, in the alternative, that KCSR had met its burden at the second McDonnell Douglas step by producing evidence of legitimate, nondiscriminatory reasons for its disciplinary decisions of Turner, Thomas, Cargo, and Frank; and that the plaintiffs had failed to meet their burden at the third step of the McDonnell Douglas analysis to show that KCSR’s proffered reasons were pretextual. Id. at 393-96. The plaintiffs timely appealed. 2 The district court did not specifically mention Turner’s § 1981 and Louisiana Employment Discrimination Law claims; however, the court’s opinion stated that “”[a]ll claims against KCS[R] are hereby DISMISSED WITH PREJUDICE.” 622 F. Supp. 2d at 396. Therefore, the district court disposed of Turner’s § 1981 and Louisiana law claims along with the plaintiffs’ Title VII claims. The parties do not contend that Turner’s § 1981 and Louisiana Employment Discrimination Law claims should be analyzed or resolved any differently from the Title VII claims related to Turner. Indeed, employment discrimination claims under Title VII, § 1981, and the Louisiana Employment Discrimination Law are analyzed under the same standard. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311 (5th Cir. 1999) (“Employment discrimination claims brought under 42 U.S.C. [§] 1981 . . . are analyzed under the evidentiary framework applicable to claims arising under Title VII . . . .”); Knapper v. Hibernia Nat’l Bank, 49 So. 3d 898, 902 n.11 (La. Ct. App. 2010) (“Claims under the [Louisiana Employment Discrimination Law] are subject to the same analysis as discrimination claims under federal Title VII of the Civil Rights Act of 1964.” (citing Hicks v. CLECO, Inc., 712 So. 2d 656 (La. Ct. App. 1998); Plummer v. Marriott Corp., 654 So. 2d 843 (La. Ct. App. 1995))). Accordingly, our conclusion that the district court erred in granting summary judgment for KCSR on the plaintiffs’ Title VII claims related to Turner applies equally to Turner’s § 1981 and Louisiana Employment Discrimination Law claims. 5 No. 09-30558 II. “This court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court.” EEOC v. WC&M Enters., Inc., 496 F.3d 393, 397 (5th Cir. 2007) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” WC&M Enters., 496 F.3d at 397 (citing Hockman v. Westward Commc’ns, L.L.C., 407 F.3d 317, 325 (5th Cir. 2004)). Therefore, because KCSR moved for summary judgment, we must view the evidence in the light most favorable to the plaintiffs. “In reviewing the evidence, the court must . . . ‘refrain from making credibility determinations or weighing the evidence.’” Id. at 397-98 (quoting Turner, 476 F.3d at 343). Where a defendant has moved for summary judgment on an employment discrimination claim based on circumstantial evidence, as in this case, we apply the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).3 See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). The first step of the McDonnell Douglas analysis requires “[t]he 3 Turner argues in his reply brief that “[s]ince [he] has provided direct evidence of a cover up intended to exonerate a white employee at the expense of a black employee, it is not necessary to work through the McDonnell Douglas test.” Turner Reply Br. 13. However, in his opening brief, Turner argued only that this putative “direct evidence” established his prima facie case under the McDonnell Douglas framework. See Turner Br. 16, 19, 35. It is true that “the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 621-22 (1985). Nonetheless, we will not decide if the evidence Turner points to qualifies as direct evidence of discrimination taking this case out of the McDonnell Douglas framework because Turner did not raise this argument in his initial brief, and “[t]his Court will not consider a claim raised for the first time in a reply brief.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). 6 No. 09-30558 plaintiff [to] establish a prima facie case that the defendant made an employment decision that was motivated by a protected factor.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995). If the plaintiff establishes a prima facie case, we proceed to the next stage of the analysis, where “the defendant bears the burden of producing evidence that its employment decision was based on a legitimate nondiscriminatory reason.” Id. If the defendant carries its burden, the analysis moves to the third McDonnell Douglas step, where “[t]he burden . . . shifts back to the plaintiff to prove that the defendant’s proffered reasons were a pretext for discrimination.” Id. III. First, we address whether the plaintiffs have met their burden to establish a prima facie case of discrimination. A. i. The Supreme Court and this court have explained the standard for establishing a prima facie case of discrimination in the context of a Title VII claim of disparate treatment. “The burden of establishing a prima facie case of disparate treatment is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie case is necessarily a flexible standard that must be adapted to the factual circumstances of the case. Id. at 253 n.6; McDonnell Douglas, 411 U.S. at 802 n.13. Nonetheless, “[t]he prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s [discipline].” Burdine, 450 U.S. at 253-54. “[T]he prima facie case ‘raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’” Id. at 254 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). 7 No. 09-30558 This court has held that “[i]n work-rule violation cases,” such as the instant case, “a Title VII plaintiff may establish a prima facie case by showing ‘either [1] that he did not violate the rule[,] or [2] that, if he did, white employees who engaged in similar acts were not punished similarly.’” Mayberry, 55 F.3d at 1090 (quoting Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980)). “To establish a prima facie case in this [second] manner, [the plaintiff] must show that . . . employees [who were not members of the plaintiff’s protected class] were treated differently under circumstances ‘nearly identical’ to his.” Id. (citing, inter alia, Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). “The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories.” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (footnotes omitted). Moreover, “the plaintiff’s conduct that drew the adverse employment decision must have been ‘nearly identical’ to that of the proffered comparator who allegedly drew dissimilar employment decisions,” because “[i]f the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer, the employees are not similarly situated for the purposes of an employment discrimination analysis.” Id. (internal quotation marks omitted). However, we have made clear that “nearly identical” is not “synonymous with ‘identical.’” Id.; see also id. at 260 n.25 (“[T]his Circuit’s ‘nearly identical’ standard is not equivalent to ‘identical.’”). “Applied to the broader circumstances of a plaintiff's employment and that of his proffered comparator, a requirement of complete or total identity rather than near identity would be essentially insurmountable, as it would only be in the rarest of circumstances that the situations of two employees would be totally identical.” Id. at 260. “For example 8 No. 09-30558 . . . [e]ach employee’s track record at the company need not comprise the identical number of identical infractions, albeit these records must be comparable.” Id. at 260-61. “As the Supreme Court has instructed, the similitude of employee violations may turn on the ‘comparable seriousness’ of the offenses for which discipline was meted out and not necessarily on how a company codes an infraction under its rules and regulations. Otherwise, an employer could avoid liability for discriminatory practices simply by coding one employee’s violation differently from another’s.” Id. at 261 (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)). “The relevant perspective is that of the employer at the time of the adverse employment decision.” Id. at 261 n.27 (citing Perez v. Tex. Dep’t of Criminal Justice, Institutional Div., 395 F.3d 206, 210 (5th Cir. 2004)). ii. The parties do not quarrel with these standards for establishing a prima facie case of discrimination in a work-rule violation case; they disagree, however, about another aspect of the prima facie case.4 KCSR argues that to establish a prima facie case, the plaintiffs must show a “causal nexus” between the alleged discriminatory motivation of the person who decided to dismiss Turner, Thomas, and Cargo, and to suspend Frank, and the disciplinary decisions later rendered by the administrative appeals boards. KCSR refers to the decisions of the administrative appeals boards as “the ultimate discipline decisions,” the 4 The EEOC also contends that under McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), it could establish a prima facie case of discrimination by showing that a black train engineer or conductor was disciplined more severely than the white conductor or engineer who was working on the train at the time of the incident—what the EEOC refers to as the “same incident test.” However, the EEOC did not make this argument below, and therefore, we will not address it for the first time on appeal. See Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007) (“If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal.” (internal quotation marks omitted)). 9 No. 09-30558 “disciplinary actions at issue,” and the “alleged adverse employment actions.” KCSR Br. at 17-18, 47-48. KCSR is mistaken. The decisions of the administrative appeals boards are not the decisions at issue. Instead, the plaintiffs’ claims are that the initial decisions to dismiss Turner, Thomas, and Cargo, and to suspend Frank violated Title VII. The EEOC’s Amended Complaint5 alleges: 7. . . . . Defendant engaged in unlawful employment practices . . . in violation of . . . Title VII, 42 U.S.C. § 2000e-2(a) and §2000e-3(a). Specifically: A. Turner. On or about October 23, 2002, Defendant terminated the employment of Turner on the basis of his race (Black), in violation of Title VII. B. Frank. On or about February 5, 2003, Defendant suspended Frank for 90 days on the basis of his race (Black), in violation of Title VII. C. Cargo. On or about May 29, 2003, Defendant suspended Cargo for 45 days on the basis of his race (Black) and/or in retaliation for engaging in protected activity, in violation of Title VII. On or about January 23, 2004, Defendant terminated the employment of Cargo on the basis of his race, and/or in retaliation for engaging in protected activity, in violation of Title VII. D. Thomas. On or about March 12, 2004, Defendant terminated the employment of Thomas on the basis of his race (Black), in violation of Title VII. Thus, the allegedly “unlawful employment practices” under Title VII6 at issue in this case are these initial decisions and not the disciplinary decisions made by the administrative appeals boards. 5 Turner filed an Intervenor Complaint alleging that his claim “arises out of the same facts and circumstances, occurring at the same time, [and] involves the same set of witnesses, facts and laws as the matter contained in the EEOC’s complaint; Title VII.” 6 Title VII provides, among other things, that “[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a). 10 No. 09-30558 KCSR mistakenly relies upon cases in which the final decisionmaker was different from the intermediate supervisor with discriminatory animus toward the plaintiff. See Jennings v. Ill. Dep’t of Corrs., 496 F.3d 764 (7th Cir. 2007); Mato v. Baldauf, 267 F.3d 444 (5th Cir. 2001); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998). Here, by contrast, the plaintiffs contend that the final decisionmaker was Thornell; that he was motivated by discriminatory animus when he made the decisions to dismiss Turner, Thomas, and Cargo, and to suspend Frank; and that these decisions violated Title VII. Therefore, we do not agree with KCSR that the plaintiffs need to show that the alleged discriminatory animus motivating the disciplinary decisions at issue in this case “caused” later decisions that are not at issue. B. Turning to whether the plaintiffs established a prima facie case of discrimination, we conclude that, viewing the evidence in the light most favorable to the plaintiffs, the plaintiffs have met their burden with regard to the decisions to dismiss Turner and Thomas, but not the decisions to suspend Frank and to dismiss Cargo. i. With regards to the decision to dismiss Turner, we conclude that the plaintiffs have met their burden to establish a prima facie case by showing that Turner received more severe discipline than a similarly situated white employee, Thomas Schmitt, under nearly identical circumstances. See Lee, 574 F.3d at 259-61.7 “The employment actions being compared will be deemed to have been 7 We note that the plaintiffs also argue that they established a prima facie case by showing that Turner did not in fact violate any workplace rule. We need not address this argument, however, because we conclude that they have met their burden by showing disparate treatment of a similarly situated white employee. Of course, this does not foreclose the plaintiffs from presenting evidence to the jury that Turner did not violate a workplace rule and arguing that the jury can infer discrimination from such evidence. 11 No. 09-30558 taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories.” Id. at 260. “[W]e require that an employee who proffers a fellow employee as a comparator [to] demonstrate that the employment actions at issue were taken under nearly identical circumstances.” Id. (internal quotation marks omitted). However, we must keep in mind that we are reviewing KCSR’s motion for summary judgment, and thus, we “must view the facts in the light most favorable to” the plaintiffs, WC&M Enters., 496 F.3d at 397; and KCSR is required to “show[] that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). Turner was terminated following an incident on October 1, 2002, in which he and Schmitt were operating a train—Turner, as the engineer, was controlling the locomotive; Schmitt, as the conductor, was providing instructions to Turner via radio from the ground—when the damaged engine that their train was shoving onto a spur track derailed at a low speed. Turner’s letter of termination stated that Turner was found to have violated KCSR “General Code of Operating Rules 2.13, 6.22, 6.28, 7.1, 7.12, and 7.2.” The plaintiffs contend that a comparable employment action for Schmitt was the decision to not discipline him following the derailment incident for which Turner was dismissed. However, KCSR argues that this decision was not made under nearly identical circumstances because Schmitt was found not to be at fault in the derailment incident. The EEOC points to record evidence—viz., the deposition of Paul Lobello, who was responsible for investigating this incident for KCSR—which indicates that Schmitt was also at fault. Therefore, according to the EEOC, the disparate decisions, most likely made by the same individual, J.R. Thornell, are comparable. Lobello’s deposition, however, indicates that he believed that Schmitt and Turner were not necessarily equally at fault. 12 No. 09-30558 We need not decide, however, whether Turner’s and Schmitt’s conduct was “nearly identical” because the plaintiffs have offered another employment action for Schmitt that we conclude is comparable: the decision to suspend Schmitt for 45 days for a sideswipe incident that occurred on October 30, 2002, only a few weeks after the derailment incident. According to KCSR’s own records relating to that incident, Schmitt was found responsible for “violation of restricted speed or the operational equivalent thereof, failure to protect a shoving movement on the main line resulting in a run through of the crossover switch, [and] sideswiping 2 hazardous material cars — [General Code of Operating Rules] 1.1.1, 1.6, 2.13, 6.28, 6.5, 7.1, 7.2 and System Timetable No. 5 Rule 1.16.” Two points convince us that Schmitt’s violations arising from the sideswipe incident are comparable to Turner’s putative violations in the derailment incident. First, Schmitt was found to have violated most of the same workplace rules that Turner was found to have violated. Second, KCSR does not dispute that there is a meaningful distinction between the rules that Turner and Schmitt were found to have violated. Instead, KCSR argues that “[g]enerally, a derailment is a more serious incident than a sideswipe.” KCSR Br. 32 (citing a statement from the affidavit of KCSR’s Director of Labor Relations that says, “a derailment is generally a more serious incident than a sideswipe”). In contrast to this general statement, Paul Lobello, who investigated both the derailment and sideswipe incidents, testified in his deposition about these specific incidents. He testified that this sideswipe incident was “more severe” than the derailment incident in terms of “[t]he damages and the hazardous material,” and that otherwise, “[t]he circumstances were the same . . . with regards to the fact that in both instances we had a locomotive engineer that operated without proper guidance.” “As the Supreme Court has instructed, the similitude of employee violations may turn on the ‘comparable seriousness’ of the offenses for which discipline was meted out and not necessarily on how a 13 No. 09-30558 company codes an infraction under its rules and regulations,” Lee, 574 F.3d at 261 (footnote omitted); and we have explained that “[t]he relevant perspective is that of the employer at the time of the adverse employment decision.” Id. at 261 n.27. Under that standard, and viewing the evidence in the light most favorable to the plaintiffs, these violations are comparably serious. Additionally, the record evidence shows that Schmitt and Turner had “the same . . . responsibilities,” and “had their employment status determined by the same person.” Id. at 260. Although Turner was an engineer and Schmitt was a conductor, KCSR does not contend that Schmitt’s responsibilities during the sideswipe incident were materially different than Turner’s responsibilities during the derailment incident.8 Further, KCSR has averred that J.R. Thornell is most likely the person who was responsible for making the decisions to dismiss Turner and to suspend Schmitt. We are also satisfied that Turner and Schmitt had “essentially comparable violation histories.” Id. According to KCSR’s records, Turner had the following disciplinary history preceding the derailment incident: In December 2000, Turner was reinstated after having been dismissed in October 1999 for failing a random alcohol test; in 1988, he was suspended for ten days for a failed brake test; and in 1982, he received a written reprimand for a deficient train inspection.9 KCSR acknowledges that Schmitt had the following disciplinary history preceding the sideswipe incident: In 1999, Schmitt was discharged for 8 Indeed, KCSR quotes its own General Code of Operating Rule 1.47 as providing: “[T]he conductor and the engineer are responsible for the safety and protection of their train [and] observance of the rules . . . . [I]f any doubts arise concerning the authority for proceeding or safety, the conductor must consult with the engineer who will be equally responsible for the safety and proper handling of the train.” 9 The record in this case also includes a 1974 drug test for Turner that showed “a long acting barbiturate,” but there is no indication that Turner was disciplined as a result of this test, and KCSR does not include this incident in its chart of Turner’s “[d]iscipline [h]istory at [t]ime of [v]iolation.” KCSR Br. 62. 14 No. 09-30558 failing to follow directions (and later reinstated); in 1990, he received a written reprimand;10 and in 1988, he received two written reprimands and was later discharged for failing an alcohol test following a derailment in which he was the brakeman. In sum, Turner had one prior violation serious enough to warrant dismissal and one violation serious enough to warrant a short suspension; on the other hand, Schmitt had two previous infractions serious enough to warrant dismissal both times. These employment histories, which are marked by a comparable number of serious violations by train operators with similar responsibilities, are sufficiently similar to require comparison. See id. at 261-62. KCSR argues that Turner’s and Schmitt’s employment histories are not comparable because Schmitt’s positive alcohol test occurred many years before the sideswipe incident when he was acting as a brakeman, whereas Turner’s positive alcohol test occurred two years before the derailment incident when Turner was an engineer. However, these distinctions do not render Turner’s and Schmitt’s employment histories incomparable. We have “emphasize[d] . . . that this Circuit’s ‘nearly identical’ standard is not equivalent to ‘identical.’” Id. at 260 n.25; see also id. at 260 (“We do not . . . interpret ‘nearly identical’ as synonymous with ‘identical.’”); id. at 261 (“Each employee’s track record at the company need not comprise the identical number of identical infractions . . . .”). A requirement of something more stringent than nearly identical employment histories would run afoul of the Supreme Court’s instruction that “[t]he burden of establishing a prima facie case of disparate treatment is not onerous.” Burdine, 450 U.S. at 253. It is also worth noting that Schmitt’s positive alcohol test occurred in connection with an incident in which a train derailed, whereas Turner’s test was a random test unrelated to any incident. Therefore, Schmitt’s 10 Turner also points out that the record shows that Schmitt was issued a second written reprimand in 1990. 15 No. 09-30558 alcohol incident was not so much less serious than Turner’s as to undermine our conclusion that Schmitt and Turner had comparable employment histories. The parties also quarrel over the significance of Turner’s December 2000 reinstatement order. KCSR contends that “Turner’s recent reinstatement was on a ‘last-chance’ basis, meaning he could be dismissed for any further violations.” KCSR Br. 32; see also id. at 33 (“The order d[id] not limit [Turner’s] last-chance status to alcohol/drug violations, nor d[id] it preclude his dismissal for other violations, such as derailment.”). According to KCSR, Schmitt was not similarly situated to Turner because he was not on a “last-chance basis” at the time of the sideswipe incident. The EEOC responds that the reinstatement order was related only to drug and alcohol testing and there was no allegation that Turner was intoxicated or refused a drug or alcohol test in relation to the derailment incident; thus, the reinstatement order was not implicated. We agree that the mere fact of the reinstatement order does not render Turner’s disciplinary history incomparable to Schmitt’s. The reinstatement order provided only that a violation of any of its terms would be “sufficient grounds for [Turner’s] permanent dismissal,” and the derailment incident did not implicate any of the terms of the reinstatement order. Therefore, the derailment incident did not, based on the terms of the reinstatement order, provide “sufficient grounds” to dismiss Turner. Moreover, in the same period of time that Turner had been dismissed and later reinstated, Schmitt had also been discharged, for failing to follow directions, and later reinstated. Thus, Schmitt’s disciplinary history is comparable to Turner’s, despite the reinstatement order. KCSR may still argue to the jury that these distinctions between Turner’s and Schmitt’s infractions and employment histories account for the difference in their discipline; however, we cannot say that, viewing the evidence in the light most favorable to the plaintiffs, these distinctions show that the employment actions were not taken under nearly identical circumstances. Therefore, we 16 No. 09-30558 conclude that the plaintiffs have met their burden to establish a prima facie case of discrimination with regard to the decision to dismiss Turner. ii. We also conclude that the EEOC has met its burden to establish a prima facie case of discrimination with regard to the decision to dismiss Lester Thomas by showing that a white employee, Joshua Hall, was disciplined less severely than Thomas under nearly identical circumstances.11 Thomas was dismissed following an incident in February 2004 in which the train that he and Hall were operating—Thomas was the conductor and Hall was the engineer—failed to stop within the appropriate distance of a “dark signal” during an unannounced safety test. Hall was initially dismissed, then reinstated thirty days later. KCSR’s Disciplinary Action Reports for Thomas and Hall, generated after the investigation and hearing to determine whether any workplace rules were violated, both specify that Thomas and Hall committed the exact same infractions: “[General Code of Operating Rules] 1.1.1, 8.9, 8.9.1, 8.10 & TT No. 5[,] Page 198, Item 9[.] Failure to control train in accordance with a signal displaying a dark aspect at S. LaBarre in addition to f/t update consist after picking up cars from Baton Rouge Yard while serving as [‘Engineer’ in Hall’s case, and ‘Conductor’ in Thomas’ case] of the INOKC.” Therefore, it is abundantly clear that Thomas’ and Hall’s violations “were essentially the same.” Lee, 574 F.3d at 260 n.25. KCSR argues that Thomas and Hall were not equally at fault for two reasons: “First, only Thomas failed to update the train consist, and thereby 11 The EEOC argues also, as it did for Turner, see supra note 4, that it established a prima facie case by showing that Thomas did not in fact violate any workplace rule. As with Turner, we need not reach this argument because we conclude that the EEOC has met its burden by showing disparate treatment of a similarly situated white employee. Accordingly, we make the same observation here that we made with regard to Turner’s claim: Our decision does not foreclose the EEOC from presenting evidence to the jury that Thomas did not violate a workplace rule and arguing that the jury can infer discrimination from such evidence. 17 No. 09-30558 committed rule violations that Hall did not.” KCSR Br. 39. However, KCSR’s Disciplinary Action Reports for Thomas and Hall state that both men were found to have failed to update the consist. Therefore, the record does not support KCSR’s assertion. Second, KCSR argues that Thomas was more at fault for the failure of the train to timely stop because “[Thomas], but not Hall, failed to diligently watch for the signal as the rules require.” Id. However, in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), the Supreme Court expressly rejected the argument that in order to establish a prima facie case the plaintiffs “were required to plead with ‘particularity’ the degree of similarity between their culpability in the alleged theft and the involvement of the favored coemployee.” Id. at 283 n.11. Instead, the Court held that “precise equivalence in culpability between employees is not the ultimate question.” Id. The ultimate question is “the ‘comparable seriousness’ of the offenses.” Lee, 574 F.3d at 261, 260 n.25; see also McDonald, 427 U.S. at 283 n.11. Viewed in the light most favorable to the EEOC, Thomas’s and Hall’s offenses are comparably serious. KCSR does not allege that Thomas and Hall are incomparable because of differences in their responsibilities; nor does it allege that the employment status of each was determined by different people. The only remaining issue is whether Thomas and Hall “have essentially comparable violation histories.” Lee, 574 F.3d at 260. We conclude that they do. KCSR’s only argument about why their histories are incomparable is based on the fact that Thomas had a greater number of violations than Hall—Thomas had eight infractions in his disciplinary history whereas Hall had only four. See KCSR Br. 39-40, 63. However, as the EEOC correctly points out, Thomas began working for KCSR in 1981, whereas Hall was hired in 2000. As we said in Lee, “[e]ach employee’s track record at the company need not comprise the identical number of identical infractions, albeit these records must be comparable.” 574 F.3d at 261. In Lee, we concluded that “employment histories marked by a comparable number of serious moving 18 No. 09-30558 violations” were comparable by looking only at the violations that had occurred “[d]uring the same period.” Id. In this case, in the four years preceding the incident, during which time Thomas and Hall both worked at KCSR, Thomas had five violations to Hall’s four;12 both of them had three moving violations; and Hall was disciplined for an incident involving a sideswipe and another involving a derailment, whereas Thomas was cited for only one derailment. We must view the facts in the light most favorable to the EEOC, and KCSR must show the absence of a genuine dispute of material fact to be entitled to summary judgment. However, KCSR has made no argument about why Thomas’ and Hall’s infractions are incomparable. Thus, we conclude that Hall is a proper comparator whom the district court erroneously rejected. iii. The EEOC contends that it established a prima facie case of discrimination with regard to the 90-day suspension of Jesse Frank for a missed call because Frank Mouney is a valid comparator, and Mouney was disciplined less severely than Frank under nearly identical circumstances. We disagree because Frank’s and Mouney’s employment histories are not sufficiently similar. See Lee, 574 F.3d at 261-62. There are some similarities in their employment histories: Frank was hired in 1972 and Mouney in 1978; Frank’s first recorded violation was in 1985 and Mouney’s was in 1984; and both had a comparable number of violations for missed calls. However, there are also critical differences: Frank had significantly more moving violations than Mouney, including one that resulted in Frank having his engineer’s license suspended; and unlike Mouney, Frank was discharged in 1997 due to a failed alcohol test. Therefore, we conclude that Frank’s and Mouney’s employment records are not 12 KCSR mistakenly claims that “[s]ix of [Thomas’] prior incidents occurred between January 2002 and January 2004.” KCSR Br. 40. That misstatement is belied by KCSR’s own chart, which reveals that Thomas had five infractions in that period. Id. at 63. 19 No. 09-30558 “essentially comparable,” id. at 260; and thus, that the EEOC has not established a prima facie case of discrimination for the decision to suspend Frank for ninety days for a missed call. iv. With respect to the decision to dismiss Clarence Cargo, the EEOC contends only that it established a prima facie case based on its “same incident test.” See supra note 4. However, the EEOC failed to argue before the district court that under McDonald, 427 U.S. 273, it could establish a prima facie case simply by showing that two employees of different races received disparate treatment from their participation in the same incident. Thus, we will not consider this argument for the first time on appeal. See Nasti, 492 F.3d at 595. IV. Having concluded that the plaintiffs established a prima facie case of discrimination with respect to the decisions to dismiss Turner and Thomas, we turn to decide whether KCSR has met its burden at the second step of the McDonnell Douglas analysis, viz., to produce admissible evidence that these decisions were based on legitimate, nondiscriminatory reasons. We conclude that KCSR has failed to meet this burden. In Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court explained that “[t]he nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens.” Id. at 253. The plaintiff’s “ultimate burden” is to “persuad[e] the trier of fact that the defendant intentionally discriminated against the plaintiff.” Id. The defendant’s intermediate burden “serves to bring the litigants and the court expeditiously and fairly to this ultimate question.” Id. At the same time, “[t]he burden that shifts to the defendant . . . is to rebut” the “presumption that the employer unlawfully discriminated against the employee,” which presumption arises from the “[e]stablishment of the 20 No. 09-30558 [plaintiff’s] prima facie case.” Id. at 254. While the defendant is not required to “persuade the court that it was actually motivated by the proffered reasons,” in order to satisfy its burden, “the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for [its decision].” Id. at 254-55. “An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel.” Id. at 255 n.9. “If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity,” id. at 255 (footnote omitted); that is, “the inquiry . . . turns from the few generalized factors that establish a prima facie case to the specific proofs and rebuttals of discriminatory motivation the parties have introduced,” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 516 (1993). “Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the [ultimate] factual issue [of discrimination vel non] with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.” Burdine, 450 U.S. at 255-56. For more than four years, KCSR misidentified the relevant decisionmaker, and by the time the likely decisionmaker was identified, that person could no longer remember making the decisions to dismiss Turner and Thomas. During the EEOC’s investigation and throughout the initial phases of discovery in this case, KCSR identified the pertinent decisionmakers as Paul Lobello and Robert Lane Bonds, the KCSR employees who had investigated the incidents involving Turner and Thomas. However, when the EEOC later deposed Lobello and Bonds, they testified that they did not make the dismissal decisions. Bonds testified that J.R. Thornell, KCSR’s General Superintendent of Transportation 21 No. 09-30558 from 2002 to 2005, decided to dismiss Thomas (and to dismiss and later reinstate Joshua Hall). In 2008—six years after the decision to dismiss Turner and four years after the decision to dismiss Thomas—KCSR finally responded to the EEOC’s third request for admissions by admitting that Thornell had made the decisions to terminate Turner and Thomas. However, in the same response, KCSR explained that “Thornell has no present recollection regarding” these decisions. Later that year, in a deposition conducted by the EEOC, Thornell testified that he could not remember making these decisions; and in a declaration subsequently submitted by KCSR, Thornell stated: 3. As the General Superintendent, I was the person responsible for making disciplinary decisions regarding Transportation employees, including engineers and conductors. 4. In making these disciplinary decisions, I would review the transcript of the investigation into the incident and the subject employee's disciplinary history. I also relied on the disciplinary policy in effect at the time. On many occasions I would consult with others, including the investigating officer or the Director of Labor Relations, before making a determination. 5. I cannot be completely sure that I made the disciplinary decisions at issue in this case pertaining to Thomas Turner . . . and Lester Thomas. While it was my responsibility at the time to make these decisions, if I was absent I may have delegated the decision to someone else, primarily the Assistant Superintendent. 6. I do not have any specific recollection of the disciplinary actions or decisions that are at issue in this case. I made many hundreds of these decisions during my tenure as General Superintendent and none of them stand out. Additionally, I have had some very serious health problems over the last several years, which have impaired my memory. It is undisputed that the Assistant Superintendent mentioned by Thornell was A.J. Sonnier, who died during the litigation in this case. There is no deposition testimony, affidavit, or declaration from Sonnier in the record. Thus, Thornell’s own declaration casts doubt on KCSR’s admission that Thornell was in fact the relevant decisionmaker. In sum, the fact that KCSR misidentified the 22 No. 09-30558 relevant decisionmaker for so long makes it now impossible to know whether Thornell or Sonnier made the decisions to dismiss Turner and Thomas. The character of the plaintiffs’ ultimate burden depends on whether Sonnier or Thornell made the relevant decisions—that is, they must prove that the actual decisionmaker was motivated by race in taking the adverse employment action. Thus, the nature of the defendant’s intermediate burden also depends on whether Sonnier or Thornell made the relevant decisions. Burdine, 450 U.S. at 253 (“The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens.”).13 We note, for example, that there is extensive record evidence of race-based comments by Sonnier, which, if he were the actual decisionmaker, would be extremely probative of intentional discrimination. The purpose of “[t]he McDonnell Douglas division of intermediate evidentiary burdens [is] to bring the litigants and the court expeditiously and fairly to th[e] ultimate question” of whether “the defendant intentionally discriminated against the plaintiff.” Burdine, 450 U.S. at 253 (emphasis added). By misidentifying the relevant decisionmaker for so long, KCSR has not acted to bring us expeditiously and fairly to this ultimate question. KCSR is no stranger to Title VII 13 See Patrick v. Ridge, 394 F.3d 311, 319 (5th Cir. 2004) (“As the ultimate issue is the employer’s reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer’s decision is not evidence that tends to illuminate this ultimate issue and is therefore simply irrelevant at this stage of the inquiry.”); Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 404 (1st Cir. 1990) (“Unless . . . a defendant articulates a legitimate non-discriminatory reason that actually motivated the decision, the reason is legally insufficient.” (internal quotation marks omitted)); cf. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000) (“We . . . look to who actually made the decision” because the ultimate issue is the discriminatory animus of that person.). 23 No. 09-30558 employment discrimination litigation,14 and it would behoove KCSR to discharge its burden with greater acuity. Nonetheless, the parties do not dispute that Thornell likely made the decisions to dismiss Turner and Thomas; and instead, they focus their arguments on the evidence that KCSR contends satisfies its burden. We agree with the plaintiffs that this evidence is insufficient. KCSR asserts in its brief that “[i]n determining the discipline to be issued to Turner, KCSR management considered the information contained in the transcript [of the investigative hearing], the hearing officer’s assessment of the evidence, and Turner’s previous disciplinary history.” KCSR Br. 8. Likewise, with respect to the discipline of Thomas, KCSR asserts that “KCSR management reviewed the hearing transcript and Thomas’ disciplinary record to determine the appropriate discipline.” KCSR Br. 11. Because the “argument of counsel” cannot satisfy the defendant’s burden, Burdine, 450 U.S. at 255 n.9, we must consider the specific evidence that KCSR cites in support of these assertions. We conclude that the evidence that KCSR cites fails to satisfy its burden of production. KCSR first cites a paragraph from an affidavit of KCSR’s Director of Labor Relations, Kathleen Alexander.15 However, that paragraph indicates only that Thornell was likely the decisionmaker, and does not explain the reasons for Thornell’s decisions. Next, KCSR cites Thornell’s declaration. However, this particular declaration does not satisfy the railroad’s burden of production. It did not 14 See, e.g., Lee v. KCSR, 574 F.3d 253 (5th Cir. 2009); Hannawacker v. KCSR, 326 F. App’x 269 (5th Cir. 2009) (unpublished); Abner v. KCSR, 513 F.3d 154 (5th Cir. 2008); Carter v. KCSR, 456 F.3d 841 (8th Cir. 2006); Grappe v. KCSR, 71 F. App’x 302 (5th Cir. 2003) (unpublished); Baylor v. KCSR, 31 F. App’x 833 (5th Cir. 2002) (unpublished). 15 Alexander’s affidavit states: “During the time period that J.R. Thornell served as the General Superintendent of Field Operations for [KCSR] he was the designated employee to make the disciplinary decisions for all Brakemen Trainees, Conductors, and Locomotive Engineers (‘Train and Engine’ or ‘T & E’ employee).” 24 No. 09-30558 attempt to have Thornell tie his usual practice to the particular decisions made here. Neither did the declaration say that Thornell looked anew at the evidence available at the time of the discipline, nor that Thornell looked at the discharge letters the railroad sent the employees and believed that the letters properly reflected the decisions he would have made. Indeed, Thornell’s saying that he might not have been the decision-maker likely eliminates its sufficiency on summary judgment. A declaration from someone who acknowledges he may not even have been the decision-maker and makes no effort to re-evaluate what he would have done at the time based on what would have been before him, produces nothing to support the employer’s evidentiary burden.16 KCSR then cites Turner’s and Thomas’ discharge letters, which it says “set forth the grounds on which the Charging Parties were disciplined.” KCSR Br. 53. Although the discharge letters state that Turner and Thomas were found to have violated certain workplace rules, they do not provide any reason for Thornell’s decisions to dismiss these employees: The letters are not signed by Thornell; they do not mention the employees’ disciplinary histories; and they do not give any indication that they reflect Thornell’s reason for choosing to dismiss the employees, as opposed to merely suspending them. The investigating officers who signed those letters both testified that they had no part in assessing the chosen discipline, and were unclear about Thornell’s reason for dismissing Turner and Thomas. Moreover, Bonds, who investigated Thomas’s incident and signed Thomas’s discharge letter, testified that he “didn’t understand the reasoning” behind Thornell’s decision to fire Thomas but reinstate Hall, and that 16 KCSR contends that Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995), supports its argument that Thornell’s declaration satisfies its burden; however, that case does not help KCSR’s position. The parties in Mayberry did not dispute that the defendant employer had met its burden; and the defendant employer’s summary judgment evidence included an affidavit giving a specific reason for the employer’s decision to suspend the plaintiff employee. See id. at 1091-92; see also Brief for Appellant at 5, 13, Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th Cir. 1995) (No. 94-10825), 1994 WL 16507696, at 5, 13. 25 No. 09-30558 it “seem[ed] odd” because “[i]n the past, if a crew was fired, the crew came back together.” KCSR next cites “[t]he transcripts of the investigative hearings,” which again, it asserts “set forth the grounds on which discipline was decided.” KCSR Br. 53. However, the hundreds of pages of transcripts that KCSR cites discuss only the circumstances of the incidents in which Turner, Frank, and Cargo were involved. (There is no transcript of any hearing related to Thomas’ case.) The transcripts do not, as KCSR asserts, include any reason for why the particular disciplinary decisions were made. Indeed, the transcripts do not even include a determination about whether or not the employees violated a workplace rule. Finally, KCSR cites “[t]he letters from Denise Brame[, KCSR’s Manager of Labor Relations,] and Kathleen Alexander[, KCSR’s Director of Labor Relations,] denying the appeals of the Charging Parties”; and “[t]he decisions of the various arbitral boards uphold[ing] the reasons for the disciplinary decisions.” Id. However, these documents are insufficient. The letters from Brame and Alexander regarding Turner—there are no letters regarding Thomas’ case—merely state, as did the discharge letter from Lobello, that the investigative hearing showed that Turner had violated company rules. The letters do not mention Thornell or his decision to dismiss Turner. The same is true of the decision of the Public Law Board with regard to Turner (again, there is no decision related to Thomas’ case): It does not mention, nor give any reason for Thornell’s decision to dismiss Turner. In fact, the Public Law Board decision is at odds with Thornell’s dismissal decision: The Board decided that Turner’s violation warranted only a long suspension. Thus, that decision does not provide KCSR with a legitimate, nondiscriminatory reason for the decision to dismiss Turner. Moreover, the letters and Board decision reflect decisions of people other than Thornell, made after Thornell’s challenged decisions. Accordingly, they do not give any reason for Thornell’s decisions at the time that he made 26 No. 09-30558 those decisions, and thus cannot satisfy KCSR’s burden. See Burdine, 450 U.S. at 254-55; Patrick, 394 F.3d at 319 (“As the ultimate issue is the employer’s reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer’s decision is not evidence that tends to illuminate this ultimate issue and is therefore simply irrelevant at this stage of the inquiry.”). Therefore, we hold that KCSR has not met its burden at this stage of the inquiry of producing legitimate, nondiscriminatory reasons that motivated the actual employment decisions at issue here.17 V. “In the context of an employer’s motion for summary judgment seeking dismissal of an employee’s discrimination [claims], a holding that the employer’s offered reasons for its adverse decision does not fulfill its burden of production under McDonnell Douglas is the legal equivalent of the employer’s having produced no reason at all.” Patrick, 394 F.3d at 320. Thus, because “the plaintiff[s] . . . ha[ve] produced evidence sufficient to make out a prima facie case” with respect to the discipline of Turner and Thomas, “and the defendant employer has failed to rebut the presumption of discrimination with evidence of a legitimate, nondiscriminatory reason for its employment decision, the [plaintiffs] [are] entitled to take [their] case to a jury.” Id. at 316 (citing Fisher v. Vassar Coll., 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)); see also id. at 320 (“As we hold that the [defendant employer] has not met its burden of producing a legitimate, non-discriminatory reason, we never reach the question whether [the plaintiffs] could demonstrate pretext, much less whether 17 We need not and do not offer any opinion on whether any of this evidence is relevant to or admissible at trial to show that the employment decisions were not motivated by discriminatory animus. 27 No. 09-30558 discrimination actually motivated [their] employer’s decision [at issue]. [The plaintiffs’] prima facie case thus pretermits summary judgment dismissal of [their] action, leaving the ultimate question of discriminatory animus to be determined by the trier of fact.”). We therefore affirm the district court’s grant of KCSR’s motion for summary judgment on the discrimination claims related to the decisions to discipline Jesse Frank and Clarence Cargo, but reverse on the claims related to the decisions to dismiss Thomas Turner and Lester Thomas; and we remand this case for further proceedings consistent with this opinion. 28 No. 09-30558 OWEN, Circuit Judge, concurring in the judgment in part and dissenting in part: The concurring and dissenting opinion issued on March 23, 2012, is withdrawn. The following is substituted. I would affirm the district court’s judgment in its entirety. I therefore concur in the panel majority’s judgment regarding its disposition of the claims of Jesse James Frank and Clarence Cargo. I do not agree with all of Judge Dennis’s reasoning as to those claims, however, and join in the judgment only with regard to Frank and Cargo. I dissent with respect to the claims asserted by Thomas Turner and Lester Thomas because I would affirm the district court’s grant of summary judgment in favor of Kansas City Southern Railway Company (KCSR). I There is error in Judge Dennis’s opinion that pervades its analysis of Thomas Turner’s claims. First, at the second stage of the familiar burden- shifting framework set forth in McDonnell Douglas Corp. v. Green,1 KCSR was required to produce evidence of a legitimate, nondiscriminatory reason for its adverse employment action against Turner, not why it chose termination instead of a lesser disciplinary action or why it did not terminate other employees for similar violations.2 KCSR has met its burden of production because there is evidence that Turner violated operational rules, termination was within the range of options for disciplining such violations, and Turner was told he was 1 411 U.S. 792, 803 (1973). 2 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995) (holding in a work-rule violation case that “by insisting that there was no racial motivation in its decision to suspend Mayberry [and] that the decision was based solely on its conclusion, following an investigation, that Mayberry was at least partially at fault . . . [the employer] has discharged its burden of production.”). 29 No. 09-30558 terminated due to those violations. Second, Judge Dennis’s opinion incorrectly focuses only on whether there is evidence of the reason that J. R. Thornell decided to terminate Turner. Judge Dennis’s opinion rejects KCSR’s arguments that Thornell was not the final decision-maker and that two independent internal reviews were thereafter conducted as to whether Turner had violated operational rules and whether the discipline for those violations was appropriate. Evidence regarding these reviews establishes a neutral reason for the actions that KCSR took.3 In fact, after the two internal reviews of the disciplinary action taken against Turner, a third review was conducted by a three-member Public Law Board that included a union representative and a neutral public member. The Board unanimously held: “[u]pon the whole record and all the evidence, . . . shoving the disabled engine over a derail can be attributed to [Turner’s] negligence in not following the Rules.” However, the Board converted the termination “to a long suspension,” which amounted to more than a year, and directed that Turner be reinstated without back pay. The Board also admonished that, “[t]he next time [Turner] faces a disciplinary hearing for any infraction of the Rules, the next Board will surely weigh the two dismissals that were converted to long suspensions in judging the severity of the discipline.” Evidence that KCSR had a legitimate, non-discriminatory reason for concluding that Turner violated operational rules and terminating him abounds. I am mystified how anyone could conclude otherwise. 3 Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980) (“It is enough for the defendants in the second phase of the case to bring forth evidence that they acted on a neutral basis.”). 30 No. 09-30558 A If the record before us does not contain evidence of a non-discriminatory reason for terminating Turner, then very few records would satisfy that burden of production. Within two weeks after the derailment, KCSR held an extensive hearing, with sworn testimony that was transcribed, about the cause of the derailment. The record of that hearing is voluminous. The entire focus of Turner’s disciplinary proceedings at each stage was the cause of the derailment and who was at fault. In fact, there is no evidence that Turner was terminated for any reason other than his fault in the derailment, except for the alleged disparate treatment of other employees, which will be discussed in more detail below. While Turner continues to dispute any wrongdoing in causing the derailment, the evidence is overwhelming that KCSR thought that he was primarily, if not solely, at fault, and that he had violated operational rules. “[E]ven an incorrect belief that an employee’s performance is inadequate constitutes a legitimate, nondiscriminatory reason” for an adverse employment action.4 There is sufficient evidence to satisfy the employer’s burden of production in the burden shifting framework in employment discrimination cases.5 Contrary to Judge Dennis’s opinion, the evidence frames the issue “with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.”6 4 Mayberry, 55 F.3d at 1091 (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). 5 See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). 6 Burdine, 450 U.S. at 255-56. 31 No. 09-30558 B Judge Dennis’s opinion mistakenly focuses on the initial decision to terminate Turner. P. A. Lobello testified that after presiding over the evidentiary hearing, he concluded that Turner had violated operational rules and that those violations had resulted in the derailment. But Lobello did not decide the disciplinary action to be taken. He identified Thornell as the individual who made that decision. However, this was not the final employment decision. Two independent investigations were subsequently conducted within KCSR, and evidence of the reasons given for Turner’s discipline at the conclusion of each of those reviews must be considered. There is evidence that after Turner received the letter dated October 23, 2002, signed by Lobello, which said that Turner had violated seven specified operating rules and that Turner was terminated, two subsequent independent internal reviews occurred at Turner’s request. First, Turner’s union representative appealed the disciplinary ruling in Lobello’s letter to Denise Brame, an African American whose title was Manager-Labor Relations. In a letter dated February 3, 2003, Brame informed Turner’s representative that she had “carefully reviewed the transcript of the formal investigation held and the discipline assessed” and that she had concluded that “[t]he discipline issued in this case was fully warranted and clearly supported by the facts adduced at the formal investigation.” The letter set forth the specific violations committed by Turner. The letter further stated Mr. Turner received due process in accordance with the Collective Bargaining Agreement. As a result, the formal investigation was fair and impartial. There was no showing of any arbitrary or capricious action against Mr. Turner by the Carrier, nor could the penalty issued be determined as unwarranted or excessive due to the importance of the proven rule violations. 32 No. 09-30558 This is admissible evidence of the reason articulated by KCSR for terminating Turner. It is sufficient to meet KCSR’s burden of production, even if there were no other evidence of why Turner was terminated. A second internal review of Turner’s termination occurred after Brame sent her letter. Kathleen Alexander, whose title was Director of Labor Relations for KCSR, informed Turner’s representative in a letter dated May 8, 2003, that Turner’s request for reinstatement and lost pay remained declined because Turner “was afforded a fair and impartial investigation and the transcript clearly proved that Claimant was guilty of the rules violations with which he was charged.” Turner pursued a further appeal to the Public Law Board, which consisted of a union representative, a KCSR member, and a neutral member. The Public Law Board likewise concluded that Turner was at fault in connection with the derailment, but the Board converted his dismissal to a long suspension and directed that he be reinstated without back pay. The initial decision to terminate Turner, whether made by Thornell or another KCSR employee, was not “rubber-stamped” by any of those involved in the subsequent investigations of whether Turner had violated operational rules and the appropriate punishment.7 Evidence regarding KCSR’s entire process in disciplining Turner should be considered. The facts before us are similar to, though far less damning than, those before the Seventh Circuit in Jennings v. Illinois Department of Corrections.8 In Jennings, a correctional officer was terminated for smuggling contraband into a prison and trading that contraband with inmates for goods from the prison 7 See generally Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001). 8 496 F.3d 764 (7th Cir. 2007). 33 No. 09-30558 commissary.9 Jennings contended that he was terminated and denied “a last- chance settlement agreement” because he was Mexican-American.10 There was, in the words of the Seventh Circuit, “a plethora of evidence of discriminatory remarks and comments” about Mexican-Americans in general and Jennings, personally, by two individuals involved in investigating Jennings and recommending his termination, including the prison’s warden.11 There was also evidence that “non-Mexican-Americans were treated more favorably when caught engaging in prohibited conduct.”12 However, the Seventh Circuit looked beyond the two individuals’ improper motivations.13 That court considered evidence that the warden had initiated an investigation against Jennings, in the course of which an independent investigator interviewed eight inmates and Jennings and concluded that Jennings engaged in the charged conduct.14 The evidence also revealed that the other individual who had made racially charged statements recommended a hearing before the correctional center’s Employee Review Board after the independent investigation had concluded.15 That Board recommended discharge, and the warden signed the discharge.16 The Illinois Department of Central Management Services approved the discharge.17 The Seventh Circuit held that even assuming Jennings had made a prima facie case, 9 Id. at 766. 10 Id. at 766. 11 Id. 12 Id. 13 Id. at 768. 14 Id. 15 Id. 16 Id. 17 Id. 34 No. 09-30558 the employer had met its burden of proffering a legitimate explanation of its adverse employment action by offering evidence of the independent investigation and independent arbitrator’s conclusions that Jennings had engaged in trading and trafficking, which was prohibited conduct.18 In the present case, the decisional process beyond Thornell’s involvement must be considered and provides evidence of a legitimate, nondiscriminatory reason for Turner’s termination. When evidence of that process is considered, the district court’s ruling as to Turner must be affirmed. C Judge Dennis’s opinion concludes that the affidavit from J. R. Thornell, dated almost seven years after the derailment, is no evidence at all of a legitimate, nondiscriminatory reason for the adverse employment action against Turner. I disagree. Thornell’s affidavit is entirely consistent with all of the contemporaneous evidence of the reason for Turner’s discharge. Furthermore, Turner knew that Thornell was involved in the disciplinary actions against him as early as the initial evidentiary hearing held within two weeks after the derailment. Judge Dennis nevertheless takes KCSR to task for not identifying Thornell sooner than it did in answers to discovery requests. My colleague apparently would require Thornell to explain why he disciplined Turner by terminating him, instead of some lesser sanction, and to further explain why he did not terminate other employees who violated operational rules. KCSR is not required to come forward with such evidence at the second stage of the burden-shifting framework of McDonnell Douglas. As the Second Circuit has explained, the employer does not have the burden at the second stage of rebutting pretext.19 Such a “requirement would place on the 18 Id. at 768-69. 19 Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980). 35 No. 09-30558 employer at the second stage of the McDonnell Douglas process ‘the burden of showing that the reason for the rejection was not a pretext, rather than requiring such proof from the employee as a part of the third step.’”20 Thornell avers in his declaration that as General Superintendent of Transportation, he “was the person responsible for making disciplinary decisions” regarding employees, although at times, another employee made such decisions. Thornell “made many hundreds of these decisions” and has no specific recollection of Turner’s case. However, Turner recalls that Thornell was having a discussion with Lobello outside the hearing room prior to the evidentiary hearing held shortly after the derailment. Turner knew that Thornell was involved in the decision-making process and tried to discuss his case with Thornell as Thornell and Lobello were conversing. Thornell rebuffed Turner’s effort. Lobello testified in his deposition in the present case that Thornell made the decision to terminate Turner after the hearing had concluded. Therefore, there is evidence that Thornell was the initial decision-maker regarding the consequences of Turner’s violations of operating rules. Thornell affirmatively states how he reached disciplinary decisions. He would review the transcript of the investigation into the incident and the employee’s disciplinary history. He also relied on the disciplinary policy in effect at the time. He states that he never made a decision based on race. The affidavit is cumulative of considerable other evidence of the reason for Turner’s discharge and is some evidence of a legitimate, nondiscriminatory reason for discharging Turner. But even if the affidavit were not part of the record, there is more than sufficient evidence of a legitimate, non-discriminatory action for the employment decision. 20 Id. (quoting Bd. of Trustees of State College v. Sweeney, 439 U.S. 24, 24-25 n.1 (1978)). 36 No. 09-30558 Contrary to Judge Dennis’s opinion, all of the evidence presented by KCSR regarding Turner’s violation of operational rules and his termination frames the issue “with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.”21 I strongly disagree with Judge Dennis’s conclusion to the contrary. D The district court held that Thomas Turner, an African American, failed to establish a prima facie case of racial discrimination, and I would affirm the district court. Turner does not contend and cannot establish that after he was terminated and before his reinstatement, he was replaced with a white person. Turner’s position was not filled, and no engineers were hired at the New Orleans facility during this time period. Instead, Turner contends that he was disciplined more severely than other white employees. In order to establish a prima facie case on such a basis, Turner “must show that white employees were treated differently under circumstances ‘nearly identical’ to his.”22 Turner’s circumstances are not similar enough to either of his proposed comparators (Schmitt and Mouney) to show disparate treatment. For the same reason, Turner cannot show that KCSR’s legitimate, nondiscriminatory reason for his dismissal was pretextual. Turner’s and Schmitt’s work histories are quite different. They had different jobs—Turner was an engineer, and Schmitt was a conductor. Turner controlled the movement of the train at the time of the derailment. Schmitt was on the ground, outside of the train. Their disciplinary histories differ significantly. While they may have had a comparable number of offenses, the offenses were not “nearly identical.” Schmitt’s positive alcohol test occurred 21 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981). 22 Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)). 37 No. 09-30558 fourteen years before the derailment at issue while he was a brakeman. Turner likewise had a positive test in the past, but Turner’s infractions continued over time. In 1974, a drug test showed the presence of long-lasting barbiturates in Turner’s system. In 1982, Turner was reprimanded for a deficient train inspection report. Six years later in 1988, Turner was suspended for failing a brake test. Turner had a positive drug and alcohol test only two years before the incident at issue in this case while he was an engineer, and he was terminated, until a review board reinstated him with the proviso that any violation of the reinstatement order’s terms would be sufficient grounds for dismissal. While the incident here did not implicate any of the reinstatement order’s terms, the mere existence of such an order is a major difference in the work histories of Turner and Schmitt. Turner is also not similar to Frank Mouney. Almost all of the disciplinary actions against Mouney were for missed-call violations, unlike Turner’s more serious violations. In short, Turner’s work history is sufficiently different from both Schmitt’s and Mouney’s work histories to account for the differences in discipline. Nor has Turner pointed to anything that would show that KCSR’s reason for dismissal is “false or unworthy of credence.”23 Accordingly, Turner has not met his burden of producing evidence to show that KCSR’s legitimate, non-discriminatory reason for his dismissal was a pretext for discrimination. II The district court concluded with regard to Lester Thomas that he failed to demonstrate that he was treated differently from similarly situated employees. The only comparator offered was Hall. For the reasons stated by the district court, Hall’s history of disciplinary actions was not comparable to Thomas’s, and Hall’s infractions were relatively minor. Hall received a five-day 23 Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011). 38 No. 09-30558 suspension while a helper for a sideswipe, a reprimand for a derailment while serving as engine foreman, a three-day deferred suspension for a “bad-ordered” car on an outbound train while he was a helper, and a five-day suspension for proceeding past a blue flag. By contrast, Thomas had received a 15-day suspension for failure to control the speed of a train, a five-day suspension for failing to protect a train in a shoving move and providing false information, a three-day suspension for failure to follow instructions, a 15-day deferred suspension for failure to follow instructions and other violations, a three-day suspension for failure to acknowledge the presence of a train, a reprimand for failure to sign a work order, a 45-day suspension and a 45-day deferred suspension for occupying the main track without authority, and a ten-day suspension and a 45-day deferred suspension for derailment. The disciplinary histories of Thomas and Hall are not comparable, much less “nearly identical.” To allow a fact-finder to infer discriminatory intent from the disparate positions and disciplinary histories of the comparators that Turner and Thomas have offered is to allow a fact-finder to second-guess business decisions that KCSR employees made in the furtherance of their job responsibilities and their responsibilities to insure a safe working environment. Judge Dennis’s opinion ignores our precedent: “we have repeatedly and emphatically stated that anti- discrimination laws ‘are not vehicles for judicial second-guessing of business decisions.’”24 ***** I would affirm the district court’s grant of summary judgment. 24 Mato v. Baldauf, 267 F.3d 444, 452 (5th Cir. 2001) (quoting Deines v. Tex. Dep’t of Protective & Reg. Serv., 164 F.3d 277, 281 (5th Cir. 1999)). 39	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals, Fifth Circuit. No. 91-4649 Summary Calendar. Charles A. BURNETT, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. Feb. 10, 1993. Appeal from the United States District Court for the Eastern District of Texas. Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges. GARWOOD, Circuit Judge: Petitioner-appellant Charles Albert Burnett (Burnett) appeals the district court's denial of his petition for a writ of habeas corpus, under 28 U.S.C. § 2254, in which Burnett raised several challenges to his two Texas convictions and sentences for aggravated robbery of the same E-Z Mart convenience store. Facts and Proceedings Below On May 12, 1988, and again on June 1, 1988, Burnett robbed an E-Z Mart convenience store in Sherman, Texas. On the first occasion, Burnett entered the store shortly after 11:00 p.m. Store clerk Patricia Neal (Neal) had just entered the establishment in order to relieve store clerk Lisa Lopez (Lopez). Neal saw Burnett enter the store. While processing paperwork, Lopez saw, from the corner of her eye, Neal turn to her to speak. Then Burnett came behind Lopez and pressed a knife against her back. Burnett told her to open the register which she did and then he took some money from it. He then told Lopez and Neal to lay down on the floor or he would kill them. Burnett then fled from the premises. Subsequently Neal was shown a police mug book but she was unable to identify Burnett. Lopez could identify Burnett by his voice since she had worked at the store for some time and he had been in the store before. Lopez could not identify him by sight because she had only seen him from the corner of her eye. On the second occasion, only Lopez was present at the E-Z Mart when Burnett again displayed a knife, threatened her, and took money from the cash register. Lopez did get a good look at Burnett during this robbery. On October 6, 1988, Lopez identified Burnett in a photographic lineup as the perpetrator. Burnett was subsequently charged with two counts of aggravated robbery. During trial, Neal was able to identify Burnett as the robber from the May 12 robbery. Lopez also identified Burnett from the May 12 robbery after Burnett had supplied a voice exemplar.1 She also identified him as the robber from the June 1 robbery. Burnett chose not to testify during trial and presented an alibi defense that he was in Houston, Texas, when the robberies occurred. On December 9, 1988, Burnett was convicted by a jury and sentenced to fifteen years for the first robbery and fifty years for the second; the sentences to be served concurrently. Later, the trial court conducted an evidentiary hearing based on Burnett's amended motion for a new trial.2 Subsequently, his convictions were affirmed on direct appeal. Burnett v. State, 784 S.W.2d 510 (Tex.App.—Dallas 1990). The Texas Court of Criminal Appeals then refused Burnett's petition for discretionary review. Burnett filed pro se the instant petition for writ of habeas corpus in the district court, asserting two grounds o f relief: violation of his Fifth Amendment privilege against self-incrimination and ineffective assistance of counsel. A United States magistrate recommended that relief be denied; and subsequently the district court adopted the magistrate's recommendation and entered final judgment denying relief. No federal evidentiary hearing was held. The district court granted a certificate of probable cause, and Burnett has appealed to this court. Burnett asserts on appeal the same two gro unds of relief. First, he argues that his Fifth 1 Burnett gave the exemplar in front of Lopez and the jury, where he was made to repeat the phrases, "open the register," "lay down on the floor," "you fucking whores, I'll be back, I'll be back," and "don't touch that bat." These phrases were ones which trial testimony showed the robber spoke during the May 12 incident. 2 The trial court heard testimony on Burnett's complaints concerning the voice exemplar and ineffective assistance of counsel. It subsequently denied Burnett's motion for a new trial. At this hearing Burnett was represented by new counsel, and not by the counsel who had represented him at trial. Amendment privilege against self-incrimination was violated by being forced to give a voice exemplar for identification purposes. Second, he contends that his trial counsel was ineffective for any one or more of four reasons. We affirm the district court's denial of relief. Discussion I. Fifth Amendment Privilege Against Self-Incrimination Burnett asserts that his compelled voice exemplar before the jury was a violation of his Fifth Amendment rights because he was required to repeat the exact words of the armed robber, even though he cho se not to testify during trial.3 The voice exemplar was allegedly for purposes of identification, but Burnett contends that the purpose of the words, especially the obscenities, was to inflame the jury. He argues that identification was not needed because the witness Lopez had already positively identified him from a photo lineup. Therefore, he claims, having to repeat the threatening and vulgar language of the robber was prejudicial and infringed on Burnett's Fifth Amendment rights. The Fifth Amendment privilege against self-incrimination protects a defendant from being compelled to provide information against himself, or otherwise provide the state with evidence, of a testimonial or communicative nature. Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). It does not protect him from being compelled to produce real or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). A voice exemplar does not violate one's Fifth Amendment privilege against self-incrimination because the exemplar is merely a source of physical evidence. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). A voice exemplar may even consist of the exact words spoken at the crime. Wade, supra. The Supreme Court has not addressed the possible prejudicial effect of live courtroom voice identification using threatening and vulgar language in the presence of the jury. However, the circuits that have confronted the issue of a voice exemplar in the jury's presence have allowed it. 3 We note that the trial court specifically admonished the jury that "the law allows the Defendant to testify in his own behalf, but failure on his part to do so is not a circumstance against him. I instruct you in this case not to consider, discuss or even refer to such failure on the part of the Defendant to testify during your consideration of this case." In United States v. Brown, 644 F.2d 101 (2nd Cir.1981), the defendant was required to repeat in front of the jury for witness identification, "Give me your money or I am going to blow you up." Id. at 103. The court held that since the ro bber had disguised his facial features by wearing a ski mask, voice identification was appropriate. Moreover, his counsel was advised in advance in judge's chambers that this pro cedure would be employed so that he had the opportunity to mitigate any suggestiveness by requiring another person to speak or changing the text of what was spoken. The Court concluded that "[i]n view of these circumstances, we find no constitutional infirmity in the procedure employed." Id. In United States v. Williams, 704 F.2d 315 (6th Cir.1983), the defendant was required to read, over his counsel's objection, a neutral passage from Time Magazine for the purpose of allowing the jury to hear his "distinctive ... gravelly-type voice." Id. at 317. The defendant argued that the exemplar was "an involuntary disclosure of vocal and physical demeanor patterns which could result in unfavorable jury reactions." Id. at 318. The court rejected his argument that such a demonstration was per se unconstitutional and observed that: "Demeanor typically impacts as a crucial jury inquiry only when a witness offers testimonial evidence, thereby injecting his credibility into issue. In contrast, a defendant compelled to give a live voice exemplar is not a witness for purposes of evolving testimonial evidence. A compelled reading of a neutral passage fails to join the defendant's credibility in issue and the defendant's demeanor axiomatically fails to become relevant or material to the ultimate issue of guilt or innocence." Id. at 320. The court concluded that "[t]he proscriptive parameters of compulsion to submit a live voice exemplar are products of evidentiary rules and judicial discretion rather than of constitutional dimension." Id. In United States v. Domina, 784 F.2d 1361 (9th Cir.1986), the defendant, for identification purposes, was forced to repeat the words: "Ladies, this is a holdup" and "Put all the money in a bag." These statements were made in the presence of the jury and over counsel's objection. Domina argued that such an exemplar was error because it violated his Fifth Amendment rights and to speak the exact words of the robber was unduly prejudicial. The court rejected both arguments. It first noted that the Fifth Amendment privilege against self-incrimination was not implicated where the defendant was not asked to utter words of a testimonial nature. As held in Wade, 388 U.S. 218, 87 S.Ct. 1926: "[C]ompelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt." Id. at 222-23, 87 S.Ct. at 1930. Since Domina was asked to repeat the robber's words for identification purposes and not to "speak his guilt," no Fifth Amendment violation occurred. Domina, 784 F.2d at 1371. The Domina court similarly rejected the argument that "requiring him to repeat, in the presence of the jury, the exact language the robber had purportedly uttered, was unduly prejudicial, creating an aura of guilt because of the words uttered." Id. The court noted that "it would have been a far better procedure to have had Domina repeat neutral words.... However, we do not find that the procedure utilized here was reversible error." Id. at 1371-72. The court pointed out that the identification was done in open court in the presence of the jury with the availability of cross-examination to reveal the weaknesses of such a procedure. Id. at 1372. Also, there existed other evidence linking Domina to the crime. Id. In United States v. Leone, 823 F.2d 246 (8th Cir.1987), the defendant was compelled to repeat, in the presence of the jury, phrases that had been played in court as part of a taped conversation: "About an hour," "I took the phone off the hook, one of them," and "I did." Id. at 250. Leone argued that "the words he was required to speak were testimonial in character, rather than identificative, because Officer Emary had already testified that the voice he heard on the phone and in person were the same." Id. The court rejected this argument because the spoken words were "totally void of any incriminatory content" which would amount to an admission of guilt. Id. Leone also argued that his Fifth Amendment right to due process was violated because "the words he was made to speak were, under the circumstances, so unnecessarily suggestive as to prejudice the jury against him." Id. The Leone court agreed with the Domina court, that since defendant's counsel could use cross-examination to expose weaknesses in the procedure and other evidence linked Leone to the crime, there was no error. Id. at 251. Turning to the facts of this case, Burnett asserts that the voice exemplar violated his Fifth Amendment privilege against self-incrimination because it was not given for identification purposes since Lopez had already identified him in a photo lineup. Burnett's argument fails to recognize that this identification was made after the June 1 robbery during which Lopez admitted that she got a good look at the perpetrator. However, she testified that she did not get a good look at the robber during the May 12 robbery and she could not identify him by sight at that time.4 The prosecution's case was based on the identification of Burnett by Neal and Lopez. Burnett's alibi defense was necessarily based on discrediting the testimony of these two witnesses. Although Neal positively identified Burnett as the robber for the May 12 robbery, Burnett's counsel cast doubt on her identification by eliciting from her testimony that she had not been able to identify him at the time of the robbery. Since Lopez could not positively identify Burnett by sight but could identify him by voice, the voice exemplar was needed evidence in the prosecution's case. In the case sub judice, Burnett's Fifth Amendment privilege against self-incrimination was not violated because he was not compelled to utter words to "speak his guilt" but rather to utter words as to an identifying characteristic. Wade, supra. The fact that he did so in front of a jury does not 4 Lopez's testimony clearly indicates that she could not visually identify Burnett for the May 12 robbery. The relevant portion of her direct examination occurred as follows: "Q. Okay. Now, did you get a good look at the Defendant as he came into the store? A. No. Q. Where did the Defendant go after he entered the store? A. He came around at the end of the counter and started toward me and Ms. Neal. Q. Were you facing toward him or away from him? A. Away. Q. Now, did you—what is the next thing that you remember? A. I was writing on my paperwork, and I saw her out of the corner of my eye turn around, and she started to say Lee—and then he was right behind me.... Q. And after she got half of your name out and was stopped, what is the next thing that you remember? A. He was right behind me pressing up against my back. Q. Did you feel anything against your arm? A. A knife." alter this assessment.5 Having reviewed the cases in the other circuits, it is clear that a compelled voice exemplar made in front of a jury is not a violation of the Fifth Amendment privilege from self-incrimination. As to Burnett's Fifth Amendment right to due process claim that the language he was compelled to speak before the jury was prejudicial and inflammatory, we hold that such a compelled utterance did not deprive Burnett of due process. The Domina and Leone courts considered an essentially analogous argument and rejected it. Those courts noted that the defendants were not denied a fair trial by such a procedure because their counsel had an opportunity to cross-examine the witnesses and in any event there existed sufficient evidence outside of the voice identification to support the convictions. Moreover, Domina and Leone were direct criminal appeals, while this is a proceeding under section 2254 where the party challenging his conviction must demonstrate a constitutional deprivation, a requirement generally not necessary to procure reversal on direct appeal. See Carter v. Lynaugh, 826 F.2d 408, 409 (5th Cir.1987). As in the above cases, there was ample evidence linking Burnett to the crimes. Furthermore, Burnett's attorney was present during the proceedings and the identifying witness was available for cross-examination. In fact, during the trial, Burnett's counsel attacked Lopez's identification of Burnett as the robber.6 Also, during voir dire, the prosecution, in the defense attorney's presence, 5 Certainly, merely speaking the words uttered by the robber did not mean that Burnett was the perpetrator. Cf. Doe v. United States, 487 U.S. 201, 217 n. 15, 108 S.Ct. 2341, 2351 n. 15, 101 L.Ed.2d 184 (1988). 6 Burnett's counsel called as a witness at trial a Mr. Clifton Earl Dutton who testified that after the May 12 robbery Lopez told him that "she didn't know what the guy looked like." Burnett's counsel also brought out the following in his cross-examination of Lopez: "Q. As I understand it, on the May 12th robbery you did not get that good a look at the robber? A. That's correct. Q. And after the May 12th robbery you were shown a photographic lineup, and you were not able to pick out the person that robbed you? A. That's correct." told the pool of prospective jurors that there would be voice identification used as evidence for the May 12 robbery.7 Given these circumstances, as pointed out in Brown, supra, Burnett's counsel was given ample notice of the intended use of the voice exemplar. The words Burnett was compelled to speak, specifically the vulgarities, cannot be viewed as so prejudicial or inflammatory as to rise to the level of constitutional error considering the probative value of the voice exemplar. As noted in Williams, supra, this type of consideration is a product of "evidentiary rules and judicial discretion rather than of constitutional dimension." Id. at 320. Also, Lopez had already stated verbatim, in the presence of the jury, the words the robber used. Burnett was not uttering for the first time the complained of language, so his repetition of it was not per se prejudicial or inflammatory. Given Lopez's prior utterance of the language, we "are not convinced that given the mores of today's society the presence of [offensive] language would prejudice the jury against the defendant." United States v. Bright, 630 F.2d 804, 814 (5th Cir.1980). Accordingly, Burnett has not demonstrated entitlement to relief on this claim.8 There was no violation of Burnett's Fifth Amendment right against compelled self-incrimination and his trial was not rendered fundamentally unfair by the compelled voice exemplar. II. Ineffective Assistance of Counsel To prevail upon a claim that his counsel's performance was so defective as to require vacation of his conviction, Burnett must satisfy a two-prong test. First, he must show that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment: second, Burnett must show that the deficient performance act ually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In the view of the 7 One prospective juror was even excused because of his bias against voice identification. 8 Moreover, even an erroneous admission of evidence does not entitle a convicted person to federal habeas relief under section 2254 unless the admission of the evidence resulted in a denial of a fundamentally fair trial under the due process clause. See, Porter v. Estelle, 709 F.2d 944, 957 (5th Cir.1983). Such an erroneous admission of prejudicial evidence will not justify habeas relief unless it is "material in the sense of a crucial, critical highly significant factor." Id. Compelling Burnett to utter the expletives certainly did not render the trial so fundamentally unfair as to constitute a denial of due process. Supreme Court, "[t]his requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Failure to make both showings is fatal to a defendant's claim of ineffective assistance of counsel. Id. A defendant in a habeas corpus proceeding has the burden to demonstrate his counsel's ineffectiveness and resultant prejudice. Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983). Judicial scrutiny of counsel's performance is highly deferential, and the Supreme Court has admonished against judging a counsel's effectiveness by hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Our st andard of review encompasses a "strong presumption" that counsel's performance was adequate. To overcome this presumption, Burnett "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. Finally, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S.Ct. at 2066. Rather, the test is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. This Court has observed that a verdict strongly supported by the record is less likely to have been affected by counsel's errors than one with only weak support. Ricalday v. Procunier, 736 F.2d 203, 208-09 (5th Cir.1984). Burnett complains that his trial counsel: (1) failed to object to Burnett being required to give a voice exemplar before the jury; (2) failed to explain the right to severance of the trial of the two robberies; (3) failed to object to the introduction of any evidence or to the District Attorney's leading questions; and (4) was impaired due to alcohol abuse. A. Failure to object to voice exemplar Burnett argues that his counsel's failure to object to the compelled voice exemplar constituted ineffective assistance of counsel because the exemplar violated his Fifth Amendment privilege from self-incrimination and right to remain silent. As discussed supra, the voice exemplar did not violate Burnett's constitutional rights. Hence, the only remaining question is whether his counsel's failure to make any objection falls within the presumptively wide range of reasonable professional assistance; and if it did not, whether the counsel's error prejudiced Burnett's defense. Burnett's trial counsel, testifying at the evidentiary hearing on the amended motion for new trial in the state trial court, stated that he could not think of any objection at trial; and he thought the exemplar was admissible as demonstrative or scientific evidence. The evidence was, indeed, admissible. Given the constitutionality of the voice exemplar and other evidence supporting Burnett's conviction, we cannot conclude that there is any likelihood that Burnett's counsel's failure to object would have caused a different result at trial. B. Failure to explain right to severance Burnett contends that his counsel's representation was also deficient because he failed to advise Burnett that he was entitled to a separate trial on each of the two robbery charges. The record of the new trial evidentiary hearing before the state trial court reflects that Burnett's trial attorney could not remember whether he had specifically discussed the severability of the trials with Burnett. Burnett failed to offer his own testimony or any other evidence that he was not advised of this right.9 As the Texas Court of Appeals determined, "the record provides an insufficient basis for this specific claim by appellant." Burnett, 784 S.W.2d at 514. We agree. Not only has Burnett failed to satisfy the first prong of the Strickland test, but he has also failed to show how the consolidated t rial prejudiced his defense. Even if he had been allowed a severance, the evidence as to both robberies could have been admitted at each of the separate trials because the robberies were related. Manning v. Blackburn, 786 F.2d 710 (5th Cir.1986) (holding that "[w]hen all the evidence at one trial could have been admitted at two separate trials, there could be no prejudice in having just one trial"). In this case the victim was the same, the offense was the 9 Since Burnett was given an opportunity by the state trial court to present evidence of this allegation, it is too late now for a court considering his habeas petition to receive new evidence on this point. Where the petitioner has failed to develop evidence in state court, he is only entitled to a federal evidentiary hearing "if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure" or "if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing." Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992). No such showing has been made in this case. same, and the location was the same.10 See Tex.R.Crim.Evid. 404(b); Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.1976) (on habeas review, allowing the admission of evidence of an extraneous offense if there is a strong showing the defendant committed the offense, and the extraneous offense is rationally connected with the offense charged); Enriquez v. Procunier, 752 F.2d 111, 114 (5th Cir.1984) (applying the Hill test). Since the evidence from one trial would be admissible in the other, Burnett has also failed to meet the prejudice prong of the Strickland test.11 C. Failure to object to evidence or leading questions Burnett also claims that his counsel was ineffective because he did not object to any evidence or to leading questions. The trial transcript reflects that Burnett's counsel did not make any objections and that the prosecution from time to time did ask leading questions. However, failure to object to leading questions and the like is generally a matter of trial strategy as to which we will not second guess counsel. Moreover, Burnett does not point out any specific instances and explain how those instances likely would have resulted in a different trial outcome. It appears that the leading questions could have been simply rephrased. In any event, assuming there were instances where objections should have been made, Burnett has failed to show how they likely prejudiced his defense. See, Rushing v. Butler, 868 F.2d 800, 806 (5th Cir.1989) (This Court dismissing defendant's complaint about failure to object to leading questions because "even if we were to surmise that defense counsel's performance was, in fact, deficient ... Rushing's claims of ineffective assistance of counsel must fail under the prejudice prong of the Strickland analysis."). Burnett is not entitled to relief in this respect. D. Impairment due to alcohol abuse Finally, Burnett asserts that he did not have effective counsel because of his attorney's alcohol 10 Furthermore, part of the voice exemplar Burnett objects to are the words "I'll be back." These words, which Lopez testified were spoken by the robber during the May 12 robbery, clearly show a link between the two crimes. Also, Lopez testified that during the June 1 robbery, the robber stated, "You remember me, don't you?" This statement also shows a link between the two offenses. 11 We note in passing that under Texas law Burnett's sentences were concurrent but if the cases were tried separately the likelihood of consecutive rather than concurrent sentences on the two offenses was enhanced. Tex.Code Crim.Proc.Ann. art. 42.08(a) (West 1992). abuse. Burnett states that he could smell alcohol on his attorney's breath; and after trial, his counsel entered a facility for treatment of alcohol abuse. However, Burnett points to no specific instances where counsel's performance during trial was deficient because of alcohol abuse, nor are any such apparent from the record of trial or the hearing on the amended motion for new trial. As stated in Berry v. King, 765 F.2d 451 (5th Cir.1985): "[U]nder Strickland the fact that an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether, for whatever reason, counsel's performance was deficient and whether that deficiency prejudiced the defendant." Id. at 454 (original italics). Burnett's claim is nothing more than a bare assertion that since his counsel abused alcohol, his counsel was ineffective. This claim must fail under Berry. Furthermore, Burnett has failed to even show that counsel was impaired during trial due to alcohol abuse. In fact, the evidence adduced during the state trial court's evidentiary hearing on the amended motion for new trial contradicts Burnett's assertion. At the hearing, the investigator for the defense indicated that he did not observe defense counsel intoxicated during trial. Burnett's defense counsel also testified that he was not intoxicated during the trial. Burnett has failed to show that his counsel was impaired at trial or that any impairment caused specific errors during trial, and he has also failed to show harm because of counsel's use of alcohol. We must, therefore, reject his contention that his attorney's alcohol use resulted in ineffective assistance of counsel. Conclusion None of Burnett's claims on appeal demonstrate error in the district court 's denial of his habeas petition. Therefore, the district court's judgment is AFFIRMED. **** ****	{ "pile_set_name": "FreeLaw" }
Case: 07-50857 Document: 00511102567 Page: 1 Date Filed: 05/06/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 6, 2010 No. 07-50857 Summary Calendar Lyle W. Cayce Clerk PETE GUTIERREZ, Petitioner-Appellant v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 1:06-CV-917 Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Pete Gutierrez, Texas prisoner # 1030607, was convicted in 2001 of murder and sentenced to 50 years in prison. After his conviction was affirmed on direct appeal, Gutierrez filed a state postconviction application seeking leave to file an out-of-time petition for discretionary review (PDR), which was granted. After the Texas Court of Criminal Appeals refused the PDR in 2004, Gutierrez unsuccessfully sought certiorari from the Supreme Court. He then brought a * 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: 07-50857 Document: 00511102567 Page: 2 Date Filed: 05/06/2010 No. 07-50857 state postconviction application challenging his conviction. After relief was denied, he filed the instant 28 U.S.C. § 2254 petition on November 9, 2006, when he deposited it in the prison mail system. See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998). The district court dismissed the petition as barred by the applicable one- year statute of limitations, concluding, in light of Salinas v. Dretke, 354 F.3d 425 (5th Cir. 2004), that the out-of-time PDR did not reinstate the direct review process for purposes of resetting the federal limitations period. Gutierrez now seeks a certificate of appealability (COA) to appeal that determination. In order to obtain a COA, the movant must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)(A), (2). When, as here, the district court’s denial of federal habeas relief is based solely on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Following the district court’s dismissal of Gutierrez’s petition, the Supreme Court held that when “a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of” the one-year limitations period. Jimenez v. Quarterman, U.S. , 129 S. Ct. 681, 686 (2009). Although the district court did not have the benefit of the Supreme Court’s opinion in Jimenez, its reliance on Salinas to conclude that Gutierrez’s petition was untimely was, in light of Jimenez, erroneous. See Womack v. Thaler, 591 F.3d 757, 757-58 (5th Cir. 2009). Thus, Gutierrez has shown that reasonable jurists would debate the correctness of the district court’s procedural ruling. Further, we conclude that Gutierrez has satisfied the COA standard with respect to whether reasonable jurists would 2 Case: 07-50857 Document: 00511102567 Page: 3 Date Filed: 05/06/2010 No. 07-50857 debate that his petition states a valid constitutional claim. See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). For the foregoing reasons, we GRANT Gutierrez a COA on whether his petition was barred by the statute of limitations in light of Jimenez, we VACATE the district court’s judgment, and we REMAND for further proceedings consistent with Jimenez. See Womack, 591 F.3d at 758; Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998). We express no opinion on the ultimate disposition of Gutierrez’s § 2254 petition. 3	{ "pile_set_name": "FreeLaw" }
155 F.3d 603 1998-2 Trade Cases P 72,281 CAPITAL CURRENCY EXCHANGE, N.V., doing business asChequepoint USA and Chequepoint Worldcash, Inc.,Plaintiffs-Appellants,v.NATIONAL WESTMINSTER BANK PLC, Barclays Bank Plc, HamishMartin Vincent Gray, Lord Alexander Of Weedon AndJohn Martin Taylor, Defendants-Appellees. Docket No. 97-9228. United States Court of Appeals,Second Circuit. Argued April 1, 1998.Decided Sept. 16, 1998. Jeffrey I. Zuckerman, Curtis, Mallet-Prevost, Colt & Mosle, Washington, DC, for Appellants. Thomas P. Ogden, Davis Polk & Wardwell, New York City, (John J. Clarke, Jr., Barbara D. Diggs, of counsel), for Appellees National Westminster Bank PLC, Hamish Martin Vincent Gray and Lord Alexander of Weedon. Philip L. Graham, Jr., Sullivan & Cromwell, New York City, (John W. Dickey, Michael B. Miller, Stephanie G. Wheeler, of counsel), for Appellees Barclays Bank PLC and John Martin Taylor. Before: McLAUGHLIN and PARKER, Circuit Judges, and EGINTON, District Judge.* McLAUGHLIN, Circuit Judge: BACKGROUND 1 Capital Currency Exchange, N.V. ("CCE"), is a financial company organized under the laws of the Netherlands Antilles. CCE has a number of affiliates, including Chequepoint Worldcash, Inc. ("Worldcash"), a New York corporation, and Chequepoint (UK) Ltd. ("Chequepoint UK"), a British Virgin Islands company that transacts business in Great Britain. 2 CCE and its affiliates are engaged principally in two kinds of international financial transactions: (1) retail currency exchange, e.g., changing pounds to dollars for tourists; and (2) money transfers, e.g., wiring money from the United States to England. 3 Barclays Bank PLC ("Barclays UK") and National Westminster Bank PLC ("NatWest UK") are English corporations. As full-service banks, Barclays UK and NatWest UK offer currency exchange and money transfer services to their customers. 4 CCE and its affiliates had a longstanding banking relationship with Barclays UK. In 1991, CCE, on behalf of Worldcash, sought a New York State money transmission license. To qualify for this license, Worldcash had to post a $500,000 bond in favor of the New York State banking authorities. CCE arranged with Barclays UK's New York office to issue an irrevocable letter of credit as security for the bond. This letter of credit was payable in New York and expressly was governed by New York law. The letter of credit, however, named Barclays UK's London office as the issuer. 5 In May 1995, for reasons that the parties hotly dispute, Barclays UK told CCE to find another banker. Barclays UK claims that it discovered Chequepoint UK's complicity in a check kiting scheme, and decided to end its relationship with CCE and its affiliates. CCE counters that Barclays UK wanted to use a trademark that was similar to one owned by CCE, and when CCE objected, Barclays UK set out to end their relationship. 6 Whatever the reason, CCE began negotiating with NatWest UK in July 1995 to establish a new banking relationship. In August 1995, NatWest UK declined to provide CCE with banking services. The reasons for NatWest UK's refusal are disputed. At the time, NatWest UK attributed its refusal to the fact that: (1) NatWest UK and Chequepoint UK were competitors in the money transfer business; and (2) Chequepoint UK had misrepresented facts about NatWest UK's money transfer services to consumers. NatWest UK now claims that its refusal was based on information that led it to believe that CCE and Chequepoint UK were involved in money laundering. CCE maintains that NatWest UK and Barclays UK conspired to drive CCE out of the money transfer business by depriving it of banking services. 7 On August 23, 1996, CCE and Worldcash, but not Chequepoint UK, brought suit in the United States District Court for the Southern District of New York (Stanton, J.). The suit named as defendants: (1) NatWest UK; (2) Hamish Gray, the CEO of NatWest UK; (3) Lord Alexander of Weedon, the Chairman of NatWest UK's Board of Directors; (4) Barclays UK; and (5) John Martin Taylor, the CEO of Barclays UK. The complaint alleged that NatWest UK, Barclays UK, and the individual defendants violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2, by denying banking services to CCE and its affiliates. The complaint also alleged four common law causes of action against Barclays UK and Taylor arising out of the termination of the CCE-Barclays UK banking relationship. 8 On November 6, 1996, defendants moved to dismiss the complaint: (1) for failure to state a claim; and (2) under the forum non conveniens doctrine. On August 28, 1997, Judge Stanton granted defendants' motion solely on forum non conveniens grounds. Judge Stanton found that: (1) antitrust suits are subject to the forum non conveniens doctrine; (2) England is an adequate forum for plaintiffs' suit; and (3) the public and private interests involved in this suit favor litigation in England. 9 CCE and Worldcash now appeal, arguing that all three of Judge Stanton's conclusions were erroneous. DISCUSSION 10 I. Application of Forum Non Conveniens to Antitrust Suits 11 CCE and Worldcash posit that an antitrust suit cannot be dismissed under the forum non conveniens doctrine. We disagree. 12 Judge Stanton's conclusion that an antitrust suit can be dismissed under the forum non conveniens doctrine is a conclusion of law that we review de novo. See Murray v. British Broad. Corp., 81 F.3d 287, 292 (2d Cir.1996). 13 The common law has long permitted dismissal of suits where jurisdiction and venue are proper, but another forum is substantially more convenient. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n. 13, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Canada Malting Co. v. Paterson S.S., 285 U.S. 413, 52 S.Ct. 413, 76 L.Ed. 837 (1932); Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L.Rev. 1 (1929). Despite the doctrine's long history, the Supreme Court did not explicitly recognize the applicability of forum non conveniens in federal question cases until 1947. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Even after Gilbert, however, the doctrine did not apply in cases brought under certain federal statutes. See, e.g., Baltimore & Ohio R.R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28 (1941) (Federal Employers Liability Act suits not subject to dismissal in favor of more convenient forum), overruled by Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949). 14 In United States v. National City Lines, 334 U.S. 573, 596, 68 S.Ct. 1169, 92 L.Ed. 1584 (1948) ("National City I "), the Supreme Court held that forum non conveniens could not be used to transfer an antitrust suit to a more convenient forum within the United States. In National City I, the government sued a number of corporations under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2, alleging that the defendants conspired to monopolize public transportation in a number of cities. The government brought the suit in Los Angeles, in what was then the Southern District of California. 15 Defendants moved to dismiss on the ground that the Northern District of Illinois was a more convenient forum. The district court granted defendants' motion and dismissed the complaint without prejudice to re-filing in the Northern District of Illinois. See United States v. National City Lines, 7 F.R.D. 456, 466 (S.D.Cal.1947). 16 On direct appeal pursuant to 15 U.S.C. § 29, the Supreme Court reversed, holding that forum non conveniens could not be used to dismiss a suit brought under the Sherman Act. See National City I, 334 U.S. at 578, 68 S.Ct. 1169. The Court's conclusion was based on the "special venue" provision in Section 12 of the Clayton Act, which liberalized the venue provisions of the Sherman Act. See 15 U.S.C. § 22 (Clayton Act); 15 U.S.C. §§ 5, 7 (Sherman Act). Section 12 of the Clayton Act permits a Sherman Act claim to be brought "in any district wherein [a defendant corporation] may be found or transacts business." 15 U.S.C. § 22; see Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 372-73, 47 S.Ct. 400, 71 L.Ed. 684 (1927). 17 The National City I Court reasoned that: (1) Section 12 of the Clayton Act demonstrated a congressional intent to expand the possible fora available to antitrust plaintiffs; and (2) application of forum non conveniens in Sherman Act cases would be inconsistent with that intent. "To have broadened the choice of venue for the reasons that brought about that action [namely, to prevent wealthy corporate defendants from transferring suits to distant and expensive venues], only to have it narrowed again by application of the vague and discretionary power comprehended by forum non conveniens would have been incongruous, to say the least." National City I, 334 U.S. at 581, 68 S.Ct. 1169. 18 In September 1948, shortly after National City I was decided, Congress enacted 28 U.S.C. § 1404(a), which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Section 1404(a) thus supplanted the common law doctrine of forum non conveniens for transfers between United States district courts. See Fitzgerald v. Westland Marine Corp., 369 F.2d 499, 501 n. 3 (2d Cir.1966). Section 1404(a) does not apply in cases where the purportedly more convenient forum is not a United States district court. In such cases, almost always involving foreign countries, the common law doctrine of forum non conveniens still governs. See Piper, 454 U.S. at 253, 102 S.Ct. 252; Fitzgerald, 369 F.2d at 501 n. 3. Section 1404(a) cases are transferred to a more convenient federal forum; forum non conveniens cases are dismissed in anticipation of re-filing in a more convenient foreign forum. See 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3828, at 278-79 (1986). 19 After § 1404(a) was enacted, the National City I defendants again moved to transfer the case to the Northern District of Illinois, this time relying on the new statute. The district court granted the motion. See United States v. National City Lines, 80 F.Supp. 734, 744 (S.D.Cal.1948). The government moved for leave to file a petition for certiorari, but the Supreme Court denied the motion, holding that § 1404(a) had overruled National City I, and the district court therefore was free to transfer the case. See United States v. National City Lines, 337 U.S. 78, 84, 69 S.Ct. 955, 93 L.Ed. 1226 (1949) ("National City II "). 20 The National City II Court explained that § 1404(a) authorized the transfer of "any civil action" between federal district courts, including antitrust cases. See id. at 80, 69 S.Ct. 955 (quoting 28 U.S.C. § 1404(a)). Although its decision was based upon § 1404(a), the Court did not explicitly limit its holding to cases governed by § 1404(a). Indeed, the National City II Court did not distinguish § 1404(a) from the common law doctrine of forum non conveniens, noting that the issue before it was whether § 1404(a) "extends the doctrine of forum non conveniens to antitrust suits." See id. at 79, 69 S.Ct. 955; see also id. at 80, 69 S.Ct. 955 (noting that Federal Employers Liability Act cases were "now subject to the doctrine of forum non conveniens" as a result of § 1404(a)) (citing Ex Parte Collett, 337 U.S. at 55, 69 S.Ct. 944, and Kilpatrick v. Texas & Pac. R.R. Co., 337 U.S. 75, 69 S.Ct. 953, 93 L.Ed. 1223 (1949)). Thus, although its reasoning relied on § 1404(a), National City II left open the possibility that an antitrust case could be dismissed under the forum non conveniens doctrine, even if § 1404(a) did not apply. 21 CCE and Worldcash seek to draw a distinction that National City II failed to make between cases governed by § 1404(a) and those governed by the common law doctrine of forum non conveniens. They argue that because National City II was based upon § 1404(a), it overruled National City I only with regard to cases governed by § 1404(a). They then conclude that because § 1404(a) does not apply in this case, forum non conveniens dismissal is precluded by the holding of National City I. We do not agree. 22 As an initial matter, plaintiffs ignore Transunion Corp. v. PepsiCo, Inc., 811 F.2d 127, 130 (2d Cir.1987) (per curiam), where we explained that the holding in National City I is no longer valid, even in cases that are not governed by § 1404(a). In Transunion, defendants sought dismissal of a RICO claim on the ground that the Philippines was a more convenient forum. We affirmed Judge Weinfeld's grant of dismissal, holding that forum non conveniens can apply to RICO claims, despite the fact that the RICO statute has a "special venue" provision modeled on Section 12 of the Clayton Act. See id. 23 In Transunion, we specifically rejected the argument that National City I foreclosed the availability of forum non conveniens when a statute has a "special venue" provision like Section 12 of the Clayton Act. Even though Transunion was not governed by § 1404(a), we concluded that "the result in National City [I] was effectively overruled by Congress in 1948 when it enacted 28 U.S.C. § 1404(a)," and affirmed dismissal. Id. Thus, in this Circuit, National City I is no longer good law, even in cases that are not governed by § 1404(a). See id.; see also Cruz v. Maritime Co., 702 F.2d 47, 48 (2d Cir.1983) (per curiam) (forum non conveniens applicable in cases governed by Jones Act despite special venue provision). 24 The plaintiffs characterize our conclusion in Transunion regarding National City I as mere dictum, and maintain that it therefore is not binding upon this panel. We disagree. 25 Plaintiffs in Transunion argued that National City I 's bar on forum non conveniens dismissals applied to RICO claims because the RICO statute's venue provision was "modeled on present antitrust legislation," H.R.Rep. No. 1549, 91st Cong., 2d Sess. 58 (1970), U.S. Code Cong. & Admin. News at 4007; see Transunion, 811 F.2d at 130. We rejected this argument on the ground that antitrust legislation in 1970 did not incorporate the holding of National City I because "the result in National City Lines [I] was effectively overruled by Congress in 1948 when it enacted [§ 1404(a) ]." Id. This statement was hardly dictum. It was necessary to our conclusion that National City I 's holding did not apply in RICO cases. See Seminole Tribe v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("[w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to the result by which we are bound."); see also Commodity Futures Trading Comm'n v. Dunn, 58 F.3d 50, 53-54 (2d Cir.1995), rev'd on other grounds, 519 U.S. 465, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997). 26 The First Circuit reached the same conclusion on the validity of National City I, although it employed somewhat different reasoning. In Howe v. Goldcorp Inv., Ltd., 946 F.2d 944, 949 (1st Cir.1991), then-Chief Judge Breyer explained that National City I did not preclude forum non conveniens dismissal of a case not governed by § 1404(a), even when the cause of action is based upon a statute with a "special venue" provision modeled on Section 12 of the Clayton Act. Justice Breyer specifically rejected the argument that the holding in National City I continues to govern forum non conveniens dismissals. His analysis was based upon the facts of National City I and a strict construction of the holding in that case. 27 As discussed above, National City I involved a transfer between two United States district courts. Justice Breyer pointed out that "the Court in National City Lines I considered only domestic transfers; it did not consider international transfers at all." See id. Because National City I did not consider international transfers, Justice Breyer reasoned, the holding could not have applied to such cases. Justice Breyer therefore concluded that the holding of National City I did not preclude the use of forum non conveniens in the international context, and the question whether National City II overruled National City I was irrelevant. See id. 28 We concede that the Fifth Circuit has essentially accepted the argument advanced by CCE and Worldcash. See Kempe v. Ocean Drilling & Exploration Co., 876 F.2d 1138, 1144 (5th Cir.1989); Industrial Inv. Dev. Corp. v. Mitsui & Co., Ltd., 671 F.2d 876, 890 (5th Cir.1982). In Mitsui, the court found that National City II overruled National City I only with regard to transfers between United States district courts. This conclusion was based upon the fact that National City II specifically relied on § 1404(a) in finding that National City I was invalid. See Mitsui, 671 F.2d at 890. 29 For the reasons discussed above, we are not persuaded by the Fifth Circuit's reasoning. In the first place, as Justice Breyer explained, National City I 's holding was limited to domestic transfers. See Howe, 946 F.2d at 949. Moreover, National City II and its companion cases did not draw a bright-line distinction between transfers under § 1404(a) and the doctrine of forum non conveniens. See National City II, 337 U.S. at 79, 80, 69 S.Ct. 955; see also Ex Parte Collett, 337 U.S. at 56, 69 S.Ct. 944. Finally, Mitsui directly conflicts with our conclusion in Transunion, which we are bound to follow. We conclude, therefore, that antitrust suits are subject to dismissal under the forum non conveniens doctrine. 30 II. Application of Forum Non Conveniens to this Suit A. Governing Law 31 Plaintiffs argue that, even if an antitrust case can be dismissed on forum non conveniens grounds, Judge Stanton erred by concluding that the doctrine supported dismissal in this case. We disagree. 32 Our review of a forum non conveniens dismissal is extremely limited. See Piper, 454 U.S. at 257, 102 S.Ct. 252. "[T]he decision lies wholly within the broad discretion of the district court and should be reversed only if that discretion has been clearly abused." Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir.1996) (internal quotation marks and citation omitted); see also Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Co., 145 F.3d 481, 491 (2d Cir.1998) (limited but "meaningful" review). 33 Any forum non conveniens analysis involves two steps. First, a court must determine that an adequate alternative forum exists. See Piper, 454 U.S. at 254, 102 S.Ct. 252; Peregrine Myanmar, 89 F.3d at 46. An alternative forum is adequate if: (1) the defendants are subject to service of process there; and (2) the forum permits "litigation of the subject matter of the dispute." Piper, 454 U.S. at 254 n. 22, 102 S.Ct. 252. As we have earlier observed, the fact that the law of the foreign forum differs from American law "should ordinarily not be given conclusive or even substantial weight," in assessing the adequacy of the forum. Id. at 247, 102 S.Ct. 252. 34 If a court concludes that an adequate alternative forum exists, it then must weigh the public and private interests identified in Gilbert to determine which forum "will be the most convenient and will best serve the ends of justice." Peregrine Myanmar, 89 F.3d at 46. If a district court considers all the Gilbert factors before dismissing a case on forum non conveniens grounds, we accord its decision "substantial deference." See Piper, 454 U.S. at 241, 102 S.Ct. 252. 35 The public interests to be considered include: (1) having local disputes settled locally; (2) avoiding problems of applying foreign law; and (3) avoiding burdening jurors with cases that have no impact on their community. The private interests embrace: (1) ease of access to evidence; (2) the cost for witnesses to attend trial; (3) the availability of compulsory process; and (4) other factors that might shorten trial or make it less expensive. See Piper, 454 U.S. at 241, 102 S.Ct. 252; Gilbert, 330 U.S. at 508, 67 S.Ct. 839. 36 In assessing convenience, there generally is a strong presumption in favor of a plaintiff's chosen forum. See Piper, 454 U.S. at 255, 102 S.Ct. 252. Thus, dismissal usually is not appropriate unless "the balance of convenience tilts strongly in favor of trial in the foreign forum." R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir.1991). However, this presumption is weaker "when the plaintiff or real parties in interest are foreign." Piper, 454 U.S. at 255, 102 S.Ct. 252; see R. Maganlal, 942 F.2d at 168. B. Adequate, Alternative Forum 37 Judge Stanton concluded that England is an adequate forum for plaintiffs' claims. Plaintiffs argue that England is inadequate because: (1) it does not recognize claims under the Sherman Act; (2) it is unclear whether an English court will award damages, and/or treble damages, in an antitrust suit; and (3) it might not recognize some of plaintiffs' common law causes of action. 1. Sherman Act Claims 38 English courts will not enforce the Sherman Act. See British Nylon Spinners Ltd. v. Imperial Chem. Indus., Inc., [1953] 1 Ch. 19 (Court of Appeal 1952). However, forum non conveniens dismissal is not trumped simply because the foreign forum will apply different substantive law than an American court. See Piper, 454 U.S. at 249, 102 S.Ct. 252; Transunion, 811 F.2d at 129. "The availability of an adequate alternate forum does not depend on the existence of an identical cause of action in the other forum." PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir.1998). 39 Plaintiffs may challenge defendants' allegedly anti-competitive actions under Articles 85 and 86 of the Treaty of Rome, which English courts are bound to enforce. See Case 127/73, BRT v. SABAM, [1974] ECR 51. These provisions are roughly analogous to Sections 1 and 2 of the Sherman Act, and create a private right of action to challenge anti-competitive, monopolistic actions. See Garden Cottage Foods Ltd. v. Milk Mktg. Bd., [1984] 1 AC 130. Given the availability of a cause of action under Articles 85 and 86, we are satisfied that plaintiffs may litigate the subject matter of their Sherman Act claims in England. See PT United Can, 138 F.3d at 74 (dismissal proper although RICO claims could not be brought in alternate forum; fraud claim adequate substitute); Transunion, 811 F.2d at 129-30 (same); see also Howe, 946 F.2d at 952 (dismissal proper although U.S. securities law claims could not be brought in alternate forum). 2. Availability of Money Damages 40 Plaintiffs also argue that England is inadequate because it is unclear whether an English court will award money damages for a violation of Articles 85 and 86 of the Treaty of Rome. In support of their argument, plaintiffs presented a declaration by Alan Rupert Tyrrell, Q.C., an expert on English law. Tyrrell pointed out that no English court has ever awarded money damages in a suit brought under Articles 85 and 86, and plaintiffs argue that the lack of a certain monetary remedy makes England an inadequate forum. 41 However, Tyrrell also admitted that "[i]n principle the usual remedies of English law, in particular damages, can as a matter of law be awarded in civil actions in an English Court against a[d]efendant who has infringed Article 85 or 86." Moreover, Tyrrell conceded that it is a position "widely held by jurists ... that infringements of Articles 85 and 86 [of the Treaty of Rome] give rise to an action for damages." Indeed, in deciding an interlocutory appeal, the Law Lords of the House of Lords concluded (by a vote of four to one) that damages are available for a violation of Article 86. See Garden Cottage Foods Ltd. v. Milk Mktg. Bd., [1984] 1 AC 130. Although a final judgment was never entered in the case, and the decision is therefore considered dicta, we find the Garden Cottage Foods case highly persuasive on the question of whether monetary damages would be available to plaintiffs in England. Thus, although English courts have not yet awarded damages in an antitrust case, it appears that English courts have the power to do so. See also An Bord Bainne v. Milk Mktg. Bd., [1984] 1 CMLR 519. 42 Plaintiffs also argue that England is inadequate because, even assuming that monetary damages are available, English courts will not award treble damages under the Sherman Act. It is well-established, however, that the unavailability of treble damages does not render a forum inadequate. See Piper, 454 U.S. at 247, 102 S.Ct. 252 (possibility of lower recovery no bar to forum non conveniens ); Transunion, 811 F.2d at 129 (unavailability of RICO treble damages does not render forum inadequate). 3. Common Law Claims 43 Finally, plaintiffs argue that a number of their common law claims against Barclays UK and Taylor cannot be redressed in the English courts. Specifically, plaintiffs assert that: (1) England does not recognize third-party beneficiary liability for breach of contract; (2) England does not imply a covenant of good faith in every contract; and (3) England does not, as a matter of law, impose a fiduciary duty on banks regarding their customers. In essence, plaintiffs argue that it will be harder for them to recover on their common law claims in England. They concede, however, that England recognizes a number of relevant common law causes of action, including breach of contract, tortious interference, and, in certain circumstance, breach of fiduciary duty by a bank. We believe that the English courts can adequately address the subject matter of plaintiffs' common law claims. 44 As discussed above, a forum may be adequate even if it does not provide a plaintiff with causes of action that are identical to those plaintiff alleged in an American court. See PT United Can, 138 F.3d at 74 (unavailability of certain common law theories of liability does not render forum inadequate); Fitzgerald, 521 F.2d at 453 (even if recovery more difficult in England, forum is adequate); see also Piper, at 254 n. 22, 102 S.Ct. 252 (unfavorable change in law does not preclude forum non conveniens ). Although it appears that plaintiffs might not be able to recover in England on some of their common law claims, the essential subject matter of the dispute can be adequately addressed by an English court. C. Weighing of Gilbert Factors 45 Judge Stanton found that the private and public interests involved in this case tilt in favor of trying the action in England. Plaintiffs argue that Judge Stanton abused his discretion in weighing the Gilbert factors. 1. Public Interests 46 Judge Stanton found that the public interests involved here favor neither New York nor England. He reasoned that New York has an interest in settling a dispute involving Worldcash, a New York corporation, and that England has an interest in resolving a dispute involving two of its major banks. 47 We agree that the public interest factors favor neither forum. Because both jurisdictions have some interest in this dispute, the concern with burdening jurors is not present. See Peregrine Myanmar, 89 F.3d at 47. The problems inherent in applying foreign law also are not implicated because the parties agree that American courts would apply American law and British courts would apply British law to this dispute. Finally, there is no indication that British courts are more or less congested than American courts, or that a judgment issued in either England or the United States would be unenforceable. Thus, Judge Stanton did not abuse his discretion in weighing the public interest factors. See id. 48 Plaintiffs argue that in assessing the public interest factors, Judge Stanton should have taken into account the United States' interest in applying the Sherman Act. See Laker Airways v. Pan American World Airways, 568 F.Supp. 811, 817 (D.D.C.1983) (suggesting that U.S. interest in applying Sherman Act makes forum non conveniens inappropriate). However, we have never held that the United States' interest in applying its laws is a determinative factor to be considered in weighing convenience. See Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 1002 (2d Cir.1993) ("United States courts have an interest in enforcing United States securities laws, [but] this alone does not prohibit them from dismissing a securities action on the ground of forum non conveniens"); Cruz, 702 F.2d at 48 (applicability of federal statute does not affect forum non conveniens analysis). Indeed, in Transunion, we upheld the forum non conveniens dismissal of a RICO suit without even suggesting that the district court should have considered the United States' interest in the application of that statute. See Transunion, 811 F.2d at 129. 2. Private Interests 49 Judge Stanton found that the private interests strongly favor litigation in England. We agree. 50 As Judge Stanton found, most of the witnesses in this case reside in England, and the cost of transporting these witnesses to New York could be enormous. In addition, most of the documentary evidence in the case was created, and is stored, in England. Thus, conducting trial in the United States might impose significant burdens on the parties. 51 Moreover, if this case is tried in the United States, certain witnesses may be unavailable. Plaintiffs' central antitrust allegation against Barclays UK concerns a transaction that involved CCE, CCE's English affiliate Chequepoint UK, Barclays UK and another English bank. The employees of the non-party English bank are: (1) crucial to a trial of plaintiffs' claims against Barclays UK; (2) not subject to compulsory process in the United States; and (3) subject to compulsory process in England. Thus, Judge Stanton properly found that England was a more efficient and effective forum for trial of this dispute. 52 D. Presumption in Favor of Plaintiffs' Choice of Forum 53 Judge Stanton found that the presumption in favor of plaintiffs' choice was weakened in this case because the real party in interest is Chequepoint UK, a foreign corporation. See Piper, 454 U.S. at 255, 102 S.Ct. 252. Plaintiffs argue that Judge Stanton erred by concluding that a weak presumption applied in this case. 54 It is clear that, at bottom, this is a suit about two English banks' refusal to do business in England with CCE and Chequepoint UK. Plaintiffs have attempted to morphose this case into a dispute that concerns the United States by discussing the letter of credit issued by Barclays UK to CCE in New York. However, the letter of credit is a red herring. The gravamen of plaintiffs' claims concern: (1) Barclays UK's alleged ploy to force CCE and Chequepoint UK into default on an English checking transaction; (2) Barclays UK's subsequent refusal to provide banking services in England to CCE and its affiliates; and (3) NatWest UK's refusal to provide banking services in England to CCE and its affiliates. The real parties in dispute with the defendants are CCE and Chequepoint UK. 55 Because the real parties in interest are foreign corporations, there is not a strong presumption in favor of the plaintiffs' choice of forum. See Piper, 454 U.S. at 255, 102 S.Ct. 252. Thus, Judge Stanton properly concluded that England was the correct forum. We note, however, that even if the real parties in interest were American, we would find that Judge Stanton did not abuse his discretion in dismissing this suit, because the private interest factors weigh so substantially in favor of England. CONCLUSION 56 Suits brought under the Sherman Act are subject to dismissal under the forum non conveniens doctrine. In this case, Judge Stanton did not abuse his discretion by dismissing the complaint on the ground that England is a more convenient forum. Accordingly, the judgment of the district court is hereby AFFIRMED. * The Honorable Warren W. Eginton of the United States District Court for the District of Connecticut, sitting by designation	{ "pile_set_name": "FreeLaw" }
78 P.3d 725 (2003) Cameron L. WINFREY, Appellant, v. STATE of Alaska, Appellee. No. A-8332. Court of Appeals of Alaska. October 16, 2003. 726 Geoffry B. Wildridge, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kim S. Stone, Assistant District Attorney, Teresa Foster, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges. OPINION COATS, Chief Judge. Cameron Winfrey was convicted of driving while intoxicated.[1] He appeals, claiming that the district court erred when it denied his motion to suppress the results of the breath test after finding that state troopers had interfered with his right to make a phone call under AS 12.25.150(b). He also claims that the district court erred when it excluded on relevancy grounds evidence that the troopers had decided to stop videotaping breath testing 727 procedures because the videotapes made prosecuting drunk drivers harder. On the first issue, we agree with the district court that suppression was not warranted because, as the district court found, neither of Winfrey's requests to make a phone call was related to the breath test. As for the second issue, we believe that the evidence Winfrey sought to admit was relevant; however, based on the inadequacy of Winfrey's offer of proof, and considering the strength of the State's case, we find that any possible error was harmless. Facts and proceedings On July 14, 2001, Alaska State Trooper Jeff Jones was driving on Chena Pump Road in Fairbanks near Cheyenne Court when an oncoming vehicle swerved in front of him, crossed completely over his lane of travel, and then left the road, coming to rest in the ditch. Jones activated his vehicle's emergency lights and turned around. As he did so, the driver of the vehicle, later identified as Winfrey, got out of the vehicle and ran into some nearby woods. Other troopers arrived to help Jones track Winfrey down. At least twice, troopers spotted Winfrey, who continued to run from them. One of the troopers chasing Winfrey saw that as he ran, he was "having a hard time ... keeping himself balanced." Winfrey, because of his weaving, "was hitting trees. I mean, he was actually literally bouncing off trees." Approximately forty-five minutes after he had fled from his vehicle, Winfrey was apprehended and placed in Jones's vehicle. When they apprehended him, the troopers saw that Winfrey "could hardly stand, he swayed, staggered would be more correct. He had bloodshot watery eyes, [and] ... an odor of alcohol ... [that] was fairly strong." He also had slurred speech, and he failed the only two field sobriety tests the troopers gave himthe horizontal gaze nystagmus test, and a test that required him to count backwards. He was arrested for driving while intoxicated and transported to the Alaska State Trooper post in Fairbanks. When he was tested on a DataMaster, his breath alcohol content was .221 percent. Before trial, Winfrey moved to suppress the results of the DataMaster test. He claimed that his right under AS 12.25.150(b) to make a telephone call had been violated. An evidentiary hearing was held, during which Jones, Winfrey, and Winfrey's wife testified. Jones testified that Winfrey did not ask to use the phone. Winfrey, however, testified that he had asked Jones while being transported to the trooper post if he could use Jones's cell phone to call his wife to arrange bail, and that Jones responded that he could use a phone later when they got to jail. Winfrey also said that at the post, while Jones was attending to other business, he asked an unidentified female trooper if he could use the phone; although this trooper spoke with Winfrey, Winfrey said she did not respond to his request to use a phone. Winfrey's wife testified that when she picked Winfrey up at the jail, he complained that he had tried to use a phone earlier while in custody to arrange for bail. After the hearing, District Court Judge Mark I. Wood denied Winfrey's motion to suppress. Judge Wood found that Winfrey had twice asked to use the phone, and that he had done so each time to arrange for bail. Based on these findings, Judge Wood ruled that the troopers had violated Winfrey's right under AS 12.25.150(b) to call his wife. However, Judge Wood held that suppression of the breath test result was not warranted because Winfrey's requests to use the phone were not related to the breath test. Later, District Court Judge Jane F. Kauvar presided over Winfrey's jury trial. During this trial, Winfrey asked to call a trooper he claimed would testify that the troopers had made a deliberate decision to stop videotaping detainees during breath tests because "people look too good on the videotape" that is, because detainees appeared too sober. Judge Kauvar excluded this evidence, ruling that it was not relevant to Winfrey's case. The jury found Winfrey guilty of driving while intoxicated. He now appeals. Did the violations of AS 12.25.150(b) require suppression of the DataMaster results? Winfrey claims that Judge Wood erred when he refused to suppress the DataMaster 728 breath test results after finding that both troopers had violated his right to contact a relative or friend under AS 12.25.150(b).[2] Judge Wood based his suppression ruling on the supreme court's decision in Zsupnik v. State.[3] In Zsupnik, the supreme court, expanding its holding in Copelin v. State[4] on the right of an arrestee to contact an attorney, ruled that drivers detained for drunk driving are also entitled to call a friend or relative before deciding whether to submit to a breath test.[5] The defendant in Zsupnik made "four separate requests to telephone her uncle. All were denied. Zsupnik's fourth request was specific: she wanted to call her uncle to ask for advice as to `what to do.'"[6] The supreme court ruled that the police had violated Zsupnik's right under AS 12.25.150(b) when they denied her request to call her uncle.[7] The court said that the right defined in AS 12.25.150(b) is clear: "Subsection (b) is intended to give the prisoner a right `to call both his relatives and a lawyer.' The legislature expressly disapproved the then prevalent practice of allowing a prisoner only one phone call to only an attorney."[8] Having expanded the statutory right it recognized in Copelin, the court next addressed the appropriate remedy when police violated this limited statutory right. Noting that Zsupnik wanted to call her uncle in order to contact an attorney,[9] a majority of the court concluded that "[i]t is settled that the remedy for violations of AS 12.25.150(b) for purposes related to the defense process is exclusion of tainted evidence."[10] The majority reasoned that exclusion of the breath test result would deter future intentional police interference with an arrestee's right to make a phone call for defense purposes.[11] The majority, however, added that it "need not reach the issue of whether the refusal of calls by an arrestee for purposes other than obtaining attorney assistance requires the exclusion of evidence."[12] On the other hand, the two dissenting justices opposed application of the exclusionary rule to cases where the arrested person was not attempting to contact an attorney, reasoning that reliable evidence of crimes should not be excluded "where there has been no serious interference with the defendant's ability to prepare her defense."[13] Although Judge Wood found that both troopers had violated Winfrey's right under AS 12.25.150(b), he also found that Winfrey had told both troopers that he wanted to make the phone call to arrange for bail. Applying Zsupnik in Winfrey's case, Judge Wood ruled that even though the state troopers had interfered with Winfrey's right under AS 12.25.150(b), this statutory violation did not warrant suppression of Winfrey's breath test result because Winfrey did not want to use the phone for a purpose related to the breath test. Judge Wood's decision is based on the distinction between police interference with a phone call requested for purposes related to a defense function and police interference with a phone call requested for other 729 purposes. We agree with Judge Wood's interpretation of Zsupnik. Although a majority of the supreme court applied the exclusionary rule in Zsupnik, they did not mandate exclusion of evidence for all violations of AS 12.25.150(b). Instead, the majority held that "the remedy for violations of AS 12.25.150(b) for purposes related to the defense process is exclusion of tainted evidence."[14] As explained earlier, the supreme court did not decide whether the refusal of a call for a non-defense purpose required suppression of breath test evidence, and the dissenting justices argued for applying the exclusionary rule only in cases where the arrested person was obstructed in contacting an attorney. Here, Judge Wood's decision is consistent with prior Alaska decisions discussing the application of the exclusionary rule when statutory rights have been violated.[15] For instance, in Nathan v. Anchorage,[16] which involved a violation of the Americans with Disabilities Act, we recognized the limited circumstances in which the exclusionary rule is applied when the police violate a statute rather than the constitution: [W]hen the government has violated a statute (as opposed to the Constitution), suppression of evidence has generally been imposed only when the government's violation of the statute demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense.[17] Winfrey did not at argue at the evidentiary hearing (nor does he on appeal) that the government's violations of AS 12.25.150(b) demonstrably prejudiced his ability to exercise related constitutional rights or to prepare or present a defense. Hence, Judge Wood correctly concluded that there was no reason to suppress the breath test results, given that Winfrey wanted to use the phone only to arrange for bail and not for any discernible defense purpose. Stated another way, there was no connection between the right violated and the evidence Winfrey wanted excluded, hence there was no "tainted evidence."[18] Although Winfrey argues that he never told the state troopers why he wanted to use the telephone, Judge Wood rejected this contention. He found that Winfrey told both troopers that the reason he wanted to use the telephone was to arrange for bail. While we acknowledge that at the evidentiary hearing Winfrey did not expressly say what he told the troopers, we conclude that Judge Wood's findings are based on reasonable inferences drawn from Winfrey's and his wife's testimony.[19] These findings are not clearly erroneous.[20] Additionally, while Winfrey 730 challenges Judge Wood's finding that Winfrey wanted to make a phone call to arrange for bail, he conceded in his argument at the hearing that this was indeed his purpose. Winfrey now argues that an arrestee's ultimate reason for wanting to make a phone call is unimportant. He asserts that the supreme court in Zsupnik intended courts to apply the exclusionary rule regardless of an arrestee's underlying reason for wanting a phone call, to ensure that the police honor the arrestee's request. But as explained above, suppression of evidence for violations of a statutory right has generally been imposed only when the government's violation of the statute demonstrably prejudiced a defendant's ability to exercise related constitutional rights or to prepare or present a defense. Nothing in Zsupnik indicates that the supreme court intended to change this general rule. Moreover, Winfrey has advanced no evidence of a pattern of purposeful violations by police of AS 12.25.150(b).[21] Accordingly, we conclude that the exclusionary rule does not apply to violations of AS 12.25.150(b) that are unrelated to the breath test or some other defense purpose. Did the trial court err when it ruled that evidence that the troopers had decided to no longer videotape the breath test procedures was not relevant? During Winfrey's trial, Judge Kauvar excluded on relevancy grounds evidence that Winfrey claimed would show that the state troopers had made a policy decision to stop videotaping suspects during breath test processing because the suspects often did not look intoxicated, making prosecutions harder. To introduce this testimony, Winfrey wanted to call a state trooper who was not involved in his drunk driving arrest or processing. After the State objected, Winfrey made the following offer of proof: "Basically, what [the trooper] would say is that [the state troopers] decided that people look too good on the video and so they decided not to do it anymore." Winfrey argued that this testimony was relevant to show two things: first, that the troopers, by not videotaping drunk driving suspects, were violating their duty "to do the best job they can to preserve evidence"; second, that the troopers were acting in bad faith because they had deliberately decided to prevent juries from reviewing evidence that contradicted troopers' claims that a suspect was acting intoxicated. But Judge Kauvar rejected these reasons, pointing out that the troopers had no duty to videotape drunk driving suspects. She then ruled that a decision made five years before Winfrey was arrested for drunk driving was not relevant to his case. Winfrey claims this was error. On appeal, Winfrey argues that evidence that the troopers deliberately stopped collecting evidence because it often contradicted the breath test results or witnesses' testimony about how intoxicated a suspect looked or acted is relevant. We agree with Winfrey. While we recognize that the due process clause has "never required [police] officers to undertake a state-of-the-art investigation of all reported crimes,"[22] or to "track down every conceivable investigative lead and seize every scintilla of evidence regardless of its apparent importance or lack of importance at the time,"[23] we believe that it would be relevant if the troopers decided to stop collecting a particular type of evidence in drunk driving cases because the evidence tended to be favorable to defendants. In this case, it is not clear from Winfrey's offer of proof that the trooper could have given admissible testimony on this issue. 731 But even if we assume that the trooper would have testified in accordance with Winfrey's proffer, and that Winfrey could have shown that the testimony was otherwise admissible, we conclude that any error in excluding this testimony was harmless. Although the State has not argued harmless error, the State's case against Winfrey was overwhelming. Trooper Jones saw Winfrey driving dangerously; he watched as Winfrey's oncoming vehicle swerved in front of him, crossed completely over his lane of travel, and then landed in the ditch. While Jones was turning his vehicle around, Winfrey fled, running into nearby woods. As the troopers pursued Winfrey, they saw that he appeared to be intoxicated. A trooper chasing Winfrey noted that Winfrey had "a hard time ... keeping himself balanced." Winfrey, because of his intoxication, was "literally bouncing off trees." When Winfrey was finally caught, approximately forty-five minutes after he had fled from his vehicle, he "could hardly stand, he swayed, staggered would be more correct. He had bloodshot watery eyes, [and] ... an odor of alcohol ... [that] was fairly strong." Winfrey also had slurred speech, and he failed the field sobriety tests the troopers gave him. When Winfrey was later tested on a DataMaster, his breath alcohol content was .221 percent. We additionally note that during the cross-examination of Trooper Jones, Winfrey was able to introduce evidence that the troopers had stopped videotaping drunk drivers at least three years before Winfrey's arrest. Thus, he could have argued to the jury that the troopers had stopped videotaping arrestees during breath tests because the evidence was unfavorable to the prosecution. Given all of these facts, we conclude that any potential error in excluding Winfrey's proffered evidence could not have affected the jury's verdict. Conclusion Winfrey's conviction is AFFIRMED. NOTES [1] Former AS 28.35.030(a) (2001). [2] AS 12.25.150(b) provides in relevant part that "[i]mmediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friend of the prisoner, have the right to immediately visit the person arrested." [3] 789 P.2d 357 (Alaska 1990). [4] 659 P.2d 1206, 1215 (Alaska 1983) (concluding that "when a person is arrested for operating a motor vehicle while intoxicated and asks to consult a lawyer, AS 12.25.150(b) and Criminal Rule 5(b) mandate that the arrestee be afforded the right to do so before being required to decide whether to submit to a breathalyzer test"). [5] Zsupnik, 789 P.2d at 360-61. [6] Id. at 358. [7] Id. at 360-61. [8] Id. at 359 (citation omitted) (emphasis in Zsupnik). [9] Id. at 361 n. 4. [10] Id. at 361 (emphasis added). [11] Id. [12] Id. at 361 n. 4. [13] Id. at 364 (Matthews, C.J., and Rabinowitz, J., dissenting). [14] Id. at 361 (emphasis added). [15] Compare Ward v. State, 758 P.2d 87, 90 (Alaska 1988) (exclusionary rule applied when the police deprived the defendant of his statutory right to an independent blood test, thereby impeding the defendant's ability to present a defense), with Burrece v. State, 976 P.2d 241, 244 (Alaska App.1999) (exclusionary rule not applied to suppress evidence obtained pursuant to a telephonic warrant where the judge did not follow statutory procedure in issuing the warrant, and where there was no bad faith); Nathan v. Anchorage, 955 P.2d 528, 533 (Alaska App.1998) (exclusionary rule not applied for violation of Americans with Disabilities Act); Harker v. State, 637 P.2d 716, 719-20 (Alaska App.1981) (exclusionary rule not applied to violation of Posse Comitatus Act); State v. Sundberg, 611 P.2d 44, 50-52 (Alaska 1980) (in the absence of a legislative directive, exclusionary rule not applied where arrests were accompanied by excessive force on the part of the police); see also Zsupnik, 789 P.2d at 361; Copelin, 659 P.2d at 1214-15. [16] 955 P.2d 528. [17] Id. at 533. [18] See Zsupnik, 789 P.2d at 361; cf. Smith v. State, 948 P.2d 473, 477 (Alaska 1997) (quoting Erickson v. State, 507 P.2d 508, 516 (Alaska 1973)) ("Once a causal connection is established between the proffered evidence and the primary illegality, the evidence must be excluded unless if falls within [some exception]."). [19] See Stumbaugh v. State, 599 P.2d 166, 172 (Alaska 1979) (when reviewing a denial of a motion to suppress, appellate courts "view the record in the light most favorable to upholding the trial court's ruling"). [20] See Chilton v. State, 611 P.2d 53, 55 (Alaska 1980); see also Nathan, 955 P.2d at 531 (citation omitted) (A finding is clearly erroneous only when an appellate court is left with a "definite and firm conviction ... that a mistake has been made, even though there may be evidence to support the [trial court's] finding."); Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991) (citation omitted) ("We will reverse the trial court's factual findings only if they are clearly erroneous. Reversal is proper only where there is no substantial evidence supporting the trial court's findings."). [21] Cf. Sundberg, 611 P.2d at 52 ("In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned...."); Nathan, 955 P.2d at 533 (noting, in declining to apply the exclusionary rule, the absence of evidence of persistent, purposeful violations of the statute). [22] March v. State, 859 P.2d 714, 716 (Alaska App.1993). [23] Id. (quoting Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977)).	{ "pile_set_name": "FreeLaw" }
535 F.Supp. 615 (1982) TEXAS ENERGY RESERVE CORPORATION, Plaintiff, v. DEPARTMENT OF ENERGY and Charles W. Duncan, Jr., Secretary of Energy, Defendants. RFB PETROLEUM, INC., and Hideca Petroleum Corp., Plaintiffs, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant. Civ. A. Nos. 81-23, 80-622. United States District Court, D. Delaware. March 31, 1982. 616 William O. LaMotte, III, Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for 617 plaintiff in Civ. A. No. 80-622; Sim Lake, Laurance C. Mosher, Jr., and Jerry E. Smith, Fulbright & Jaworski, Houston, Tex., of counsel. Joseph J. Farnan, Jr., U. S. Atty., John X. Denney, Jr., Asst. U. S. Atty., Dept. of Justice, Wilmington, Del., C. Max Vassanelli, and Thomas H. Peebles, Dept. of Justice, Thomas H. Kemp, and Judith A. Mather, Dept. of Energy, Washington, D. C., for defendants. Bruce M. Stargatt, and Jack B. Jacobs, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiffs in Civ. A. No. 81-23; Thomas E. Engel, and Robert P. Knapp, III, Hale, Russell & Gray, New York City, Charles H. Carmouche, Dickerson, Hamel, Early & Pennock, Houston, Tex., of counsel. OPINION MURRAY M. SCHWARTZ, District Judge. These are two actions seeking pre-enforcement review of several regulations promulgated by the Department of Energy ("DOE" or "the Government") governing the pricing of crude oil by resellers. Plaintiffs Texas Energy Reserve Corporation ("Texas Energy"), RFB Petroleum, Incorporated ("RFB Petroleum"), and Hideca Petroleum Corporation ("Hideca") are crude oil resellers. They seek a declaratory judgment in this Court that the challenged regulations are procedurally and/or substantively invalid, and further seek to enjoin DOE from enforcing these regulations against them. The Government has moved to dismiss both actions on ripeness and exhaustion grounds, and also has raised venue objections in both actions. Although the parties differ in their procedural posture before the agency, the Court consolidated the cases for oral argument because the principal issues raised in each were the same. I. Statutory and Regulatory Background The regulations at issue originally were promulgated under the Emergency Petroleum Allocation Act of 1973 ("EPAA"), 15 U.S.C. § 751 et seq., which became law on November 27, 1973. The Act required the President to promulgate a regulation providing for the mandatory allocation of crude oil, residual fuel oil, and refined petroleum products. 15 U.S.C. § 753(a). The Act further contained nine specific objectives which the regulation was to implement to the maximum extent practicable. See 15 U.S.C. § 753(b)(1)(A)-(I).[1] To carry out this mandate, the President established the Federal Energy Office ("FEO"). See Exec. Order No. 11,748, 38 Fed.Reg. 33,575 (1973). Among other responsibilities, FEO received the Cost of Living Council's price stabilization authority under the Economic Stabilization Act with respect to petroleum products and crude oil. 39 Fed.Reg. 24 (1974); see 12 U.S.C. § 1904 note (Economic Stabilization Act of 1970). FEO issued Mandatory Petroleum Allocation and Price Regulations on January 15, 1974. 39 Fed. Reg. 1924 (1974). On June 27, 1974, FEO's responsibility for regulation of petroleum pricing and allocation was transferred to the new Federal Energy Administration ("FEA"), which had been established by the Federal Energy Administration Act, 15 U.S.C. § 761 et seq., and executive order. Exec. Order 11,790, 39 Fed.Reg. 23,185 (1974). In 1977, this function passed to the Department of Energy under the Department of Energy Organization Act, 42 U.S.C. § 7101 et seq., and Executive Order No. 12,009, 42 Fed.Reg. 46,267 (1977). 618 From 1974 to 1978, crude oil resales were governed by 10 C.F.R., Part 212, Subpart F. These regulations established a maximum lawful price for resales of crude oil equal to the weighted average price that the crude oil reseller had charged for comparable crude oil on May 15, 1973, plus the amount by which the reseller's cost of purchasing crude oil had increased since that date. 10 C.F.R. 212.93 (1978). On January 1, 1978, Subpart L to 10 C.F.R. Part 212 went into effect. Subpart L, governing only resales of crude oil, generally permitted a crude oil reseller to charge any price in an individual resale, as long as the reseller's "average mark up"[2] for all resales in the month did not exceed its "permissible average mark up" ("PAM").[3] 10 C.F.R. 212.183(a). These resales were further governed by the so-called "layering" rule, which provided that "[t]he price for crude oil charged by a reseller which in a sale performs no service or other function traditionally and historically associated with the resale of crude oil shall not exceed the actual price paid by the reseller for the crude oil...." 10 C.F.R. 212.186. On December 1, 1980, the two regulations challenged in these lawsuits were promulgated. First, DOE amended the pricing rule to provide for a PAM of 20 cents per barrel for all resellers who had sold crude oil before December 1, 1977. 10 C.F.R. 212.182 (1980). Second, DOE amended the pricing rule which had permitted resellers to charge any price in an individual sale, requiring: ... if between the time of purchase and the time of resale of crude oil by a reseller (1) the crude oil remained in the same physical location or (2) such reseller did not take actual physical possession of the crude oil, the reseller shall not charge a price for that crude oil which exceeds the acquisition cost of that crude oil....[4] 10 C.F.R. 212.183(a). Finally, on January 30, 1981, by executive order President Reagan exempted all crude oil and refined petroleum products from the price and allocation controls adopted pursuant to the EPAA. Exec. Order No. 12,287, 46 Fed. Reg. 9909 (1981). The plaintiffs, who are crude oil resellers, challenge the "layering" and "PAM" rules as procedurally and substantively invalid. They allege that the regulations are based on the erroneous assumption that crude oil traders do not perform a function or service traditionally and historically associated with crude oil resale. Plaintiffs further argue that DOE promulgated the regulations in excess of its statutory authority under the EPAA, that the regulations are arbitrary and capricious, that they are void for vagueness, and that they violate the just compensation, procedural due process, and equal protection guarantees of the Constitution. In addition to these substantive challenges, plaintiffs charge that the rules are procedurally invalid because of various alleged defects in their promulgation. Hideca and RFB Petroleum have each received 619 a Notice of Probable Violation ("NOPV") from DOE regarding the regulations; DOE audited Texas Energy in January of 1981, but as of yet Texas Energy has not received an NOPV. Nevertheless, the crude oil resellers do not challenge the pending enforcement actions within the agency, but rather the regulations themselves. The Government has moved to dismiss these suits on several grounds. First, it has raised separate venue objections with respect to each of the actions consolidated here. Second, it contends that the issues presented here are not ripe for judicial consideration at this time. Third, DOE argues that the parties have failed to exhaust administrative remedies and therefore may not now seek judicial review. The Court will address the venue and ripeness issues, but need not address exhaustion in light of its disposition of the ripeness issue. II. Venue DOE has raised venue objections in each of the cases consolidated here for review.[5] It alleges that Texas Energy's incorporation in Delaware shortly before filing suit in this District raises a prima facie case of collusive venue which has not been rebutted. DOE also argues that RFB Petroleum's addition of Hideca as a party by amending its complaint was an improper attempt to obtain venue, and that its suit should therefore be dismissed. The collusive venue claim may be addressed quickly. According to the Government, on May 27, 1980, Texas Energy Reserve Corporation was incorporated in Delaware. On December 18, 1980, Texas Energy Reserve Corporation of Texas merged with the Texas Energy Reserve Corporation of Delaware. Two weeks later, Texas Energy filed this lawsuit in the District of Delaware. Relying principally on this Court's decision in National Distillers and Chemical Corp. v. DOE, 487 F.Supp. 34 (D.Del.1980), the Government contends that the merger was accomplished for the sole purpose of obtaining venue in Delaware, and that therefore the action should be dismissed. The Court cannot agree with the Government that the facts presented rise to the level of collusive venue. Texas Energy has asserted that the December merger of the Delaware and Texas corporations was simply the consummation of a corporate reorganization designed to reduce the franchise taxes paid by the firm. According to the affidavit of John R. Allender, an attorney involved in this transaction, in December of 1979 Texas Energy Reserve Corporation of Texas began to establish a corporate holding company structure by incorporating various subsidiaries in Delaware. Affidavit of John R. Allender, C.A. No. 80-622, Docket No. 17. In April or May of 1980, preparation began for a tax-free reincorporation of Texas Energy in Delaware. Although most of the documents relating to the merger were executed in September of 1980, the company delayed the merger until December 18, 1980 due to its concern about possible double payment of Texas franchise taxes. Id. This case is therefore distinguishable from National Distillers and Chemical Corp. v. DOE. In that case, a Virginia corporation had transferred the portion of its business affected by the DOE regulations it wished to challenge to a previously inactive Delaware corporation which was a wholly owned subsidiary. That corporation then joined the Virginia corporation in the lawsuit. 487 F.Supp. at 35-36. Those facts strongly suggested to the Court that the transfer of business, which was largely a matter of form, was accomplished solely to obtain venue in Delaware. Id. at 37. The Court further noted that "[t]he plaintiffs do not admit that the joinder did result from collusion but, on the other hand, the plaintiffs have not attempted to justify or give reasons for the transfer of the property to 620 its wholly owned subsidiary." Id. at 36 n.7. It therefore granted plaintiffs an opportunity "to present facts showing that the transfer was not made for the purpose of creating venue in this district." Id. at 37. Here, in contrast, Texas Energy has advanced a legitimate business reason for the merger which is unrelated to the creation of venue in this District, and has submitted an affidavit to that effect. Even if one accepted DOE's contention that the facts establish a prima facie case of collusive venue, the affidavit effectively rebuts that allegation. The Court holds, therefore, that Texas Energy's suit is properly venued in the District of Delaware. The second venue issue is somewhat more troubling. The Government challenges RFB Petroleum's addition of Hideca as a party as improper because it was done without leave of the Court. The basic facts are not in dispute. On January 28, 1981, RFB Petroleum, a Texas corporation, filed its complaint in this action. The Government filed a motion to dismiss, alleging in part that venue did not lie in Delaware because RFB Petroleum did not reside in Delaware as required by the statute.[6] On May 4, 1981, the day before it filed its reply to the motion, RFB Petroleum amended its complaint to add Hideca, a Delaware corporation, as a plaintiff. Hideca had received an NOPV from DOE on March 16, 1981. The Government asserts that under the Federal Rules, a party may not be added without leave of the Court as required under Rule 21.[7] It argues that Hideca must be dropped from the suit, and therefore venue is improper in Delaware. RFB Petroleum counters that it properly added Hideca as part of its amendment of right under Rule 15(a).[8] The issue before this Court is which rule governs the addition of parties. There is little agreement on this issue among the courts and commentators who have addressed the question. As one commentator has noted: Most courts have held that the specific provision relating to joinder in Rule 21 governs over the more general text of Rule 15, and that an amendment changing parties requires leave of court even though made at a time when Rule 15 indicates it could be done as of course.... However, it has been held that if plaintiff files an amended complaint without first obtaining leave to add an additional party, the defect may be corrected and does not require dismissal of the action. 7 C. Wright & A. Miller, Federal Practice and Procedure § 1688 (1972); see J. Moore, Moore's Federal Practice ¶ 15.07[3] (2d ed. 1980) (most courts follow Rule 21 rather than Rule 15, but noting that Fifth Circuit has followed opposite route); Annot., Necessity of Leave of Court to Add or Drop Parties by Amended Pleading Filed Before Responsive Pleading is Served, Under Rules 15(a) and 21 of Federal Rules of Civil Procedure, 31 A.L.R.Fed. 752 (1977). Nevertheless, the same commentator has advocated the view that Rule 15(a) is the preferable rule governing this situation, arguing that Rule 15 is actually the more specific provision because it sets forth a particular means of adding parties, and that applying Rule 15 in this context serves the purpose of the rules by ensuring that the court avoids the necessity of passing on pleadings at an early stage of litigation. See 6 Wright & Miller, Federal Practice and Procedure § 7149; McLellan v. Mississippi Power & 621 Light Co., 526 F.2d 870, 873 (5th Cir. 1976) (following Wright & Miller's rationale), vacated in part, 545 F.2d 919 (5th Cir. 1977). This Court has previously addressed this matter in dictum. In United States v. Sinclair, 347 F.Supp. 1129 (D.Del.1972), appeal dismissed sub nom. United States v. Estate of Pearce, 498 F.2d 847 (3d Cir. 1974), the complaint originally filed by the Government challenging the validity of a sequestration order failed to name the executrix of the estate as required under law. The Government had amended its complaint to name the executrix as a party defendant, arguing that Rule 15(a) permitted such action. Chief Judge Latchum noted: The Court is inclined to agree with the Government's argument, but even conceding the defendants' position to be correct, the Court has discretion under Rule 21 to add parties at any time in the proceedings on such terms as are just. Since the Court finds that no prejudice has resulted from the amendment, it will be permitted. Id. at 1136 (emphasis in original); accord Gibbs v. Titelman, 369 F.Supp. 38, 53 (E.D. Pa.1973) (leave of court granted, so no conflict between Rules 15 and 21), rev'd on other grounds, 502 F.2d 1107 (3d Cir.), cert. denied, 419 U.S. 1039, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974); see United States v. Montchanin Mills, Inc., 512 F.Supp. 1192 (D.Del.1981) (although Rules 15(a) and 21 have been held applicable to adding parties, mere misnomer of party properly corrected under Rule 15(a)). The Court recognizes that parties should not be permitted to circumvent venue requirements by manipulating the Federal Rules. See National Distillers and Chemical Corp. v. DOE, 487 F.Supp. at 37. Nonetheless, given the split of authority, the Court is unprepared to hold in this context that the addition of a party by amending the complaint before a responsive pleading has been filed violates the rules. As a practical matter, dropping Hideca from this action and dismissing RFB Petroleum would waste judicial resources, because Hideca could simply file another action and join RFB Petroleum as plaintiff. As another court has noted: "It would serve no useful purpose to require the plaintiffs to seek leave of the court to do that which they could have done without such leave in their original complaint." Ahmad v. Independent Order of Foresters, 81 F.R.D. 722, 728 (E.D.Pa.1979). The Court therefore holds that Hideca was properly added as a party and that venue is proper in this District. III. Ripeness DOE asserts that these cases are not yet ripe for judicial review. The ripeness doctrine "prevent[s] courts from becoming involved in administrative disputes which call for detailed factual analysis or technical expertise and which do not yet cause or threaten any concrete hardship." Texaco, Inc. v. DOE, 490 F.Supp. 874, 887 (D.Del.1980). The doctrine has both constitutional and prudential dimensions. The constitutional element of the doctrine is derived from the "case or controversy" requirement of Article III. As this Court recently noted in Cities Service Co. v. DOE, 520 F.Supp. 1132 (D.Del.1981): "A plaintiff challenging a governmental enactment or policy satisfies the ripeness aspect of the case or controversy requirement by demonstrating that operation of the enactment or policy will cause him to sustain some immediate injury and that the judicial relief requested would redress this injury." Id. at 1139. The determination of this element depends upon "whether the requisite injury is in sharp enough focus and the adverseness of the parties concrete enough to permit a court to decide a real controversy and not a set of hypothetical possibilities." Martin Tractor Co. v. Federal Election Commission, 627 F.2d 375, 379 (D.C.Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980). Beyond this constitutional constraint, broader prudential considerations also enter into the determination of whether or not a case is ripe for judicial review, because of the court's discretion in awarding injunctive and declaratory relief. The 622 Supreme Court first developed the doctrine of pre-enforcement judicial review in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and its companion cases, Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), and Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967).[9] In Abbott Laboratories the Court set forth the underpinnings of the ripeness doctrine as follows: Without undertaking to survey the intricacies of the ripeness doctrine, it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. 387 U.S. at 148-49, 87 S.Ct. at 1515. It is not always clear where constitutional concerns end and prudential concerns begin. Cities Service v. DOE, 520 F.Supp. at 140; see Coastal States Gas Corp. v. DOE, 495 F.Supp. 1300, 1304 n.3 (D.Del.1980). Nevertheless, in this case the Court is satisfied that plaintiffs meet the constitutional requirements of concreteness and adversity. The Court must therefore consider whether prudential considerations render the case ripe for judicial consideration. At the outset, plaintiffs have argued that the Abbott Laboratories trilogy is no longer the benchmark for determining ripeness in the context of pre-enforcement review of agency regulations. They assert that Abbott Laboratories was grounded in the notion that standards of judicial review were measured by the jurisdictional grant of section 10 of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-04. They then point out that in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court held that "the better view is that the APA is not to be interpreted as an implied grant of subject-matter jurisdiction to review agency actions," id. at 105, 97 S.Ct. at 984, and that courts must instead look to the substantive grants of jurisdiction from Congress. Plaintiffs therefore contend that this Court should not mechanically apply the Abbott Laboratories criteria to determine ripeness, but rather should look to the broad grant of Section 210(a) of the Economic Stabilization Act. See 12 U.S.C. § 1904 note (Economic Stabilization Act). That section provides: Any person suffering legal wrong because of any act or practice arising out of this title, or any order or regulation issued pursuant thereto, may bring an action in a district court of the United States, without regard to the amount in controversy, for appropriate relief, including an action for a declaratory judgment, writ of injunction ... and/or damages. Section 211(a) grants the district courts exclusive original jurisdiction of "cases and controversies" arising under the Act. According to plaintiffs, this Court must simply determine whether they have suffered "legal wrong" under the Act without regard to traditional ripeness criteria. Plaintiffs' argument is based upon a fundamental misconception of the ripeness doctrine and the cases which have developed it in the context of pre-enforcement review. In addition, they could not cite one case in this context that supports reading Abbott Laboratories out of the ripeness inquiry. In Abbott Laboratories, the Supreme Court addressed two issues. The first question it considered was "whether Congress by the Federal Food, Drug, and Cosmetic Act intended to forbid pre-enforcement review of this sort of regulation promulgated by the Commissioner." 387 U.S. at 139-40, 87 S.Ct. at 1510. The Court looked to section 10 of the Administrative Procedure Act and the legislative scheme, determined that there was no congressional intent to preclude judicial review, and concluded that it had jurisdiction to hear the challenge to the 623 regulations. Id. at 141-48, 87 S.Ct. at 1511-15. The Court also addressed the question whether even if judicial review were not precluded, the Court should exercise its discretion to withhold consideration until the issue was ripe. The Court noted: "The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy `ripe' for judicial resolution." Id. at 148, 87 S.Ct. at 1515. The ripeness criteria traditionally applied by the courts are derived from the second Abbott Laboratories inquiry, not the first. Califano v. Sanders in no way undercuts the traditional ripeness analysis because its holding addressed the first question treated in Abbott Laboratories reviewability in the jurisdictional sense. Thus the language of the Economic Stabilization Act relied upon by plaintiffs "has not dispensed with the requirements of final agency action ... as considerations of ripeness and exhaustion of administrative remedies still must be accommodated." Coastal States Gas Corp. v. DOE, 495 F.Supp. at 1305 n.4. The Court must therefore apply the standards established by the Supreme Court in Abbott Laboratories to determine whether the case is ripe. In Abbott Laboratories, the Supreme Court described this inquiry as "best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S. at 149, 87 S.Ct. at 1515. The Delaware District has developed four criteria for determining whether a case meets the Abbott Laboratories test: ... a controversy is ripe for pre-enforcement judicial relief if an affirmative answer can be given to the following four questions: (1) are the issues presented purely legal, (2) are the issues based on final agency action, (3) does the controversy have a direct and immediate impact on the plaintiffs' businesses, and (4) is the litigation calculated to expedite final resolution rather than delay or impede effective agency enforcement? Phillips Petroleum Co. v. FEA, 435 F.Supp. 1239, 1245 (D.Del.1977), aff'd, 596 F.2d 1029 (Temp.Emer.Ct.App.1978). Each of these elements must be present for a case to be ripe for pre-enforcement review. The Court will address each requirement in turn. The parties disagree as to the nature of the agency action challenged here. Plaintiffs assert that the agency action they seek to overturn is the promulgation of the regulations at issue. DOE argues that the action challenged is the commencement of agency enforcement proceedings against plaintiffs. It is clear from the pleadings and the arguments presented that plaintiffs are challenging "not the compliance proceeding but the regulatory pronouncements on which that proceeding is based. A determination of the ripeness of the controversy, therefore, must be made in that light." Texaco, Inc. v. DOE, 490 F.Supp. at 887. The fact that two of the parties have received NOPV's and one has not is thus relevant to the inquiry, but not determinative. A. Purely Legal Issues The first element to be determined is whether the issues presented in this challenge are purely legal. DOE asserts that the validity of the regulations cannot be determined without first applying them to specific factual settings. It further argues that plaintiffs' allegations that the regulations are void for vagueness, constitute a taking, have no rational basis, and were promulgated as a result of ex parte communications require significant factfinding. Plaintiffs counter that their challenge is to the procedural and substantive validity of the regulations, and that these issues can be decided without substantial factfinding. The Court agrees with plaintiffs that the issues presented for decision here are purely legal questions. In simplest terms, the sole issue for the Court to decide is whether the regulations are valid. The legality of the challenged regulations is not an issue which requires factfinding before an agency. The 624 factfinding in agency proceedings would focus on plaintiffs' conduct to determine whether they had violated the regulations, not on the conduct of the agency in formulating the regulations themselves. See United Refining Co. v. DOE, 482 F.Supp. 1131, 1135 (W.D.Pa.1980). In this action, the crude oil resellers do not challenge the specific application of the regulations to their peculiar factual situations, but simply whether the regulations were promulgated in accordance with law. See Pennzoil Co. v. DOE, 466 F.Supp. 238, 242 (D.Del.1979); Northern Natural Gas Co. v. DOE, 464 F.Supp. 1145, 1154 (D.Del.1979). In National Distillers and Chemical Corp. v. DOE, 498 F.Supp. 707 (D.Del.1980), aff'd, 662 F.2d 754 (Temp.Emer.Ct.App.1981), Chief Judge Latchum addressed this precise issue. The plaintiff there challenged certain DOE pricing policies under which it had received an NOPV. The court explained that the issue of the validity of the policies was purely legal: "The issues framed by the complaint are wholly legal in nature, concerning the application of DOE regulations to uncontroverted facts." Id. at 715. The court further noted: "To resolve these questions, the Court need only examine the language of the pertinent regulations, the history surrounding promulgation of these regulations, and any evidence of the agency's contemporaneous interpretation of the regulations." Id. at 716; see Phillips Petroleum Co. v. FEA, 435 F.Supp. at 1245. The same is true here. RFB Petroleum and Hideca have conceded that in at least half of the transactions for which they have received NOPV's, their sole defense is the invalidity of the regulations. See Affidavit of Luis Wolff, C.A. No. 81-23, Docket No. 31; Affidavit of Richard Donald Messig, C.A. No. 81-23, Docket No. 34. To the extent that there are factual disputes over the remaining transactions, these disputes would not affect the ability of this Court to rule on the bulk of plaintiffs' substantive and procedural challenges.[10] The relevant factual disputes concern the action the agency took in developing and promulgating the regulations. Such factual questions do not render the case unripe, for they would not be addressed by the agency in the course of compliance proceedings. B. Final Agency Action The second element of the ripeness inquiry is whether there is final agency action. The government argues that there is no final agency action here because DOE has not determined that any of these companies have violated the regulations at issue. It points out that even after the issuance of an NOPV, a number of steps remain before an order is binding on the party.[11] DOE contends that this suit will not be ripe until the agency issues a final order finding a plaintiff in violation of the challenged rules. The plaintiffs assert, however, that the agency action they seek to reverse is not the enforcement proceeding, but rather the regulations themselves, and that these regulations are clearly final. As previously noted, the crude oil resellers here challenge only the regulations. The parties have not asked this Court to review whether DOE properly issued the NOPV's, and in fact, it is unlikely that such a challenge to an NOPV would be entertained by this Court. By its terms, an NOPV is a notice of probable violation, not a conclusive determination of liability; "the NOPV itself is not binding on plaintiffs and 625 does not have the force and effect of law." National Distillers and Chemical Corp. v. DOE, 498 F.Supp. at 716. An action challenging an NOPV would not be ripe; "the plaintiff faces no immediate harm of any kind since administrative steps remain to be taken before the Government's coercive powers are brought to bear." Diversified Chemicals and Propellants v. DOE, 432 F.Supp. 859, 864 (N.D.Ill.1977); cf. FTC v. Standard Oil Co. of California, 449 U.S. 232, 238-43, 101 S.Ct. 488, 492-95, 66 L.Ed.2d 416 (1980) (FTC "reason to believe" complaint not final agency action). The Supreme Court has explained that final agency action is to be interpreted in a pragmatic way. Abbott Laboratories v. Gardner, 387 U.S. at 149-50, 87 S.Ct. at 1515-16. Under traditional ripeness principles, regulations promulgated by an agency may constitute final agency action. See, e.g., Louisiana v. DOE, 507 F.Supp. 1365, 1372 (W.D.La.1981); United Refining Co. v. DOE, 482 F.Supp. at 1135; Pennzoil v. DOE, 466 F.Supp. at 242; Northern Natural Gas v. DOE, 464 F.Supp. at 1154-55; Phillips Petroleum Co. v. FEA, 435 F.Supp. at 1246. The regulations at issue here were final and binding in effect, and had the force of law. They therefore constitute "final agency action" for purposes of this element of the ripeness inquiry. C. Direct and Immediate Impact on Plaintiff's Business The third element of the ripeness inquiry, the requirement that the agency action have a direct and immediate impact on plaintiff's business, is the most difficult hurdle for plaintiffs to overcome. DOE contends that the decontrol of crude oil allocation and pricing has removed any direct and immediate impact that the regulations might have had on plaintiffs, and that they therefore cannot meet the "horns of a dilemma" test traditionally required for pre-enforcement review of agency regulations. Plaintiffs argue, however, that the hardship imposed upon them by the regulations rises to the requisite level of impact despite the absence of the traditional dilemma. As noted previously, the President ordered the decontrol of crude oil allocation and pricing in January 1981, exempting all crude oil and refined petroleum products from the controls adopted pursuant to the EPAA. See Exec. Order No. 12287, 46 Fed. Reg. 9909 (1981). DOE subsequently rendered the challenged regulations ineffective. See 46 Fed.Reg. 20,508; 46 Fed.Reg. 20,516. The parties do not contest the fact that the crude oil traders no longer need comply with the regulations challenged in this lawsuit. What they do contest is the significance of decontrol to the ripeness inquiry. Ordinarily, to have the requisite direct and immediate impact, plaintiff must suffer "an identifiable hardship which is directly and immediately traceable to the bare existence of a fixed agency position." Texaco, Inc. v. DOE, 490 F.Supp. at 888 (quoting Standard Oil Co. v. FEA, 440 F.Supp. 328, 365-66 (N.D.Ohio 1977), aff'd, 596 F.2d 1029 (Temp.Emer.Ct.App.1978)). The reason for this requirement is to preclude parties from challenging agency rules before such rules have an effect upon their businesses. As the Supreme Court explained in Abbott Laboratories: Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance.... 387 U.S. at 153, 87 S.Ct. at 1517. Without this requirement, anyone could challenge agency action in the courts before enforcement proceedings had begun, seriously hampering the administrative process. In general, courts have been reluctant to find a direct and immediate impact on a plaintiff without the so-called "horns-of-a-dilemma" situation. This test is derived from the factual situation in Abbott Laboratories. In that case, drug manufacturers sought to challenge regulations establishing 626 new labeling requirements for prescription drugs. These manufacturers had two choices: they could refuse to comply with the regulations, await a determination of violation by the agency and then challenge the regulation in the courts, thereby subjecting themselves to financial liability and possible prosecution; or they could comply with the expensive labeling provision and lose vast sums of money if the regulations were held invalid. Id. at 152-53, 87 S.Ct. at 1517. The Supreme Court explained that this agency action had "a direct effect on the day-to-day business of all prescription drug companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate." 387 U.S. at 152, 87 S.Ct. at 1517. Similarly, when courts have considered this question in the context of energy regulation, they have examined whether the regulation affects the companies in their daily operation that is, in pricing their products on a current basis. See Pennzoil Co. v. DOE, 466 F.Supp. at 242-43; Northern Natural Gas v. DOE, 464 F.Supp. at 1155. In this case, however, the plaintiffs need not comply with anything; since decontrol, the challenged regulations have been inapplicable to any current or prospective transactions. See Cities Service Co. v. DOE, 520 F.Supp. at 1142. The plaintiffs admit that they are not on the horns of a pricing dilemma in the traditional sense of that test, but argue that they nevertheless have suffered sufficient impact from the regulations to render this case ripe for adjudication. In particular, they assert that the huge liability they may incur if they are found to have violated the regulations has so hampered their business operation, planning, and financing that they must have immediate judicial relief. Plaintiffs particularly rely on Standard Oil Co. v. FEA, 440 F.Supp. 328 (N.D.Ohio 1977), aff'd, 596 F.2d 1029 (Temp.Emer.Ct. App.1978), where the district court found a case to be ripe even though it did not satisfy the horns-of-a-dilemma test. In Standard Oil, oil refiners challenged the FEA's interpretation of certain pricing regulations which had been effective during 1975 and 1976, but were no longer in effect at the time the suit was brought. Rather than follow the usual ripeness criteria, the district court instead enumerated four additional factors which, when taken together, constituted the requisite direct and immediate impact. The court first noted that the fact that the plaintiffs were subject to enforcement action resulted in harm "by casting doubt upon the propriety of past refiner conduct, on which the refiners must rely in planning the present and future operations of their businesses." Id. at 366. Second, the court explained that the plaintiffs and other members of the industry had a "huge potential liability hanging over their heads," which "must have a seriously adverse impact upon the budgeting and planning process...." Id. Third, the court called attention to the serious threat of private enforcement actions under the Economic Stabilization Act. Id. at 367-68. Fourth, it noted the burdensome and costly effort entailed in the agency enforcement proceedings. Id. at 368-69. Taking the four elements together, the court concluded that under these unique circumstances, the parties had shown sufficient hardship to render the controversy ripe. Id. at 370. Plaintiffs here assert that this Court should follow the approach of the district court in Standard Oil, and find this case to be ripe even without a pricing dilemma. The Court is reluctant to follow the Standard Oil approach. Not only does it unnecessarily broaden the standards for determining ripeness, but it also conflicts with the analysis Chief Judge Latchum employed in its companion case, Phillips Petroleum Co. v. FEA, 435 F.Supp. 1239 (D.Del.1977), aff'd, 596 F.2d 1029 (Temp.Emer.Ct.App. 1978). In that case, the district court faced the identical set of facts addressed by the Standard Oil court. Nevertheless, Chief Judge Latchum found that plaintiffs were in fact on the horns of a pricing dilemma because current prices were determined in part by reference to amounts established by the refiner's interpretation of the challenged regulations. Id. at 1246-47; see Standard Oil Co. v. FEA, 440 F.Supp. at 366-67. The direct and immediate impact, therefore, was on the pricing of the refiners' 627 petroleum products on a current basis. 435 F.Supp. at 1246. Although the Temporary Emergency Court of Appeals did not address the horns-of-a-dilemma holding, it affirmed both district courts' conclusions that the case was ripe. See 596 F.2d at 1039-40. In light of this District's steady adherence to the Phillips Petroleum ripeness criteria, this Court will not now shift to adopt other factors which might expand the ripeness analysis to the point where it jeopardizes administrative independence.[12] The purpose of having a stringent test to determine direct and immediate impact is to prevent courts from interfering with agency operation until absolutely necessary. When a regulation places a business in a pricing dilemma and jeopardizes its ability to function effectively, immediate review may be warranted. But when a regulation is no longer legally binding, the court should not intervene prematurely because its intervention would only adjudicate the validity of conduct which has already occurred, and have no direct impact in determining the course of business to be taken by the party in the future. If a dilemma were not required, any regulation could be challenged in court by any party within its scope, and the ripeness inquiry would become meaningless. This does not mean that a determination by this Court upholding certain past transactions of the plaintiffs because of the invalidity of the governing regulations would not affect the companies' operations. Clearly a company with a large potential liability must behave differently in the marketplace from one whose liability has been resolved. Any time a court conclusively determines liability it enables the affected parties to conduct their affairs with more certainty. But as this Court has previously noted: "While certainty regarding business transactions may be a legitimate goal, there would be no ripeness requirement left if a plaintiff could sue whenever it was concerned about its potential liability for past transactions. Businessmen and others must live with their considered choices." Cities Service Corp. v. DOE, 520 F.Supp. at 1143. The mere fact that adjudication resolves uncertainty does not mean that a potential liability from a previously effective regulation constitutes a direct and immediate impact stemming from the existence of that regulation. In an ordinary pricing dilemma, once the court declares the regulation void, the company is relieved of its hardship the burden of conforming its conduct to the regulation. This immediacy is missing when there is no dilemma, because even if the court finds the regulations invalid, this step alone does not remedy the hardship directly. The hardship in this instance is not compliance with a regulation, but inability to plan around a large contingent liability. It is eliminated only because the removal of the potential liability enables the business to operate without fear of financial losses. This impact on business is not sufficiently direct and immediate to justify involving the Court in the adjudication of whether or not two now-defunct regulations were validly promulgated. The question remains, however, whether the magnitude of harm is so great in this case that the Court should look beyond traditional ripeness criteria to grant immediate review. Both RFB Petroleum and Hideca have asserted at oral argument and in affidavits filed with the Court under seal that the enormous potential liability of the 628 NOPV's has virtually destroyed their financial capabilities by hampering their ability to borrow money, and in RFB Petroleum's case, by eliminating it from crude oil trading entirely. In Exxon v. FTC, 588 F.2d 895 (3d Cir. 1978), the Court of Appeals for the Third Circuit addressed a similar issue in the context of extra-enforcement review of agency treatment of documents obtained by administrative subpoena. In holding that the district court lacked discretion to decline to hear the merits of plaintiffs' challenge to the protective order governing the documents, the court held that the criteria of Abbott Laboratories applied to cases of extra-enforcement review, when the issue was "whether declaratory relief should be made available outside the channels normally provided for the challenge of agency action." Id. at 901. The court went on to hold that where the request for documents numbered in the tens of millions, even though the alleged injury of possible public dissemination of confidential documents was not immediate, the case was "so extraordinary in terms of the breadth of the underlying investigation and the volume of documents to be sought that the magnitude of the possible injury outweighs the lack of immediacy for the purpose of our Abbott analysis." Id. at 902. It could be argued that under Exxon, the magnitude of the potential liability to the crude oil traders outweighs the lack of a pricing dilemma. However, in a case subsequent to Exxon, the appellate court sounded a retreat from its innovative extra-enforcement doctrine, holding a dilemma was required to satisfy Abbott. In Wearly v. FTC, 616 F.2d 662 (3d Cir. 1980), the court held a challenge to a subpoena unripe because "[b]esides failing to satisfy the Abbott requirement of finality plaintiffs did not establish whether the decision to comply with the subpoena placed them on the horns of a dilemma." Id. at 667. Where there was no compulsion to turn over the documents or face penalties, there was no dilemma. Id. Although these cases arose in the context of extra-enforcement review, they indicate that the horns-of-a-dilemma requirement remains a vital part of the Abbott Laboratories inquiry in this circuit. Even if magnitude of harm is to be taken into account in the ripeness inquiry, the harm alleged here does not rise to such a level as to outweigh all other elements. The affidavits submitted by plaintiffs are conclusory at best, and fail to show a direct causal relationship between the challenged regulations and the plaintiffs' alleged business difficulties. For instance, the treasurer of RFB Petroleum avers that the company must carry the nearly $3.4 million alleged overcharge as a contingent liability. He further avers that the company lost its credit line with New York bankers in May of 1981 "due in large part to the financial posture of the company vis-a-vis its contingent liability under the NOPV and the ongoing market risk," and that the company's inability to replace this credit line through Houston banks led to the cessation of crude oil trading by the company in May 1981 and a variety of other losses. Affidavit of Richard B. Messig, C.A. No. 81-23, Docket No. 29. The president of Hideca has set forth in an affidavit his belief that DOE subpoenas of its bank records caused "additional concern in the banking community as to the overcharges alleged by the DOE in its NOPV and may jeopardize loan applications." Affidavit of Luis Wolff, C.A. No. 81-23, Docket No. 31. Texas Energy's general counsel similarly has stated on the record that it had received such subpoenas, but does not even allege any impact to its business. Affidavit of Robert C. Finley, C.A. No. 80-622, Docket No. 26. These affidavits do not set forth an injury of such magnitude as to outweigh other elements in the ripeness determination; the connection between DOE enforcement proceedings and the various financial woes alleged is speculative at best. Even if the affidavits are accepted as true, the mere existence of a large potential liability cannot render a case ripe when the other necessary elements of ripeness have not been satisfied. See Cities Service Corp. v. DOE, 520 F.Supp. at 1142 (possible $250,000,000 liability); Texaco, Inc. v. DOE, 490 F.Supp. at 889 (possible $888,000,000 liability). In short, the Court is unable to find the requisite direct and immediate impact on 629 plaintiffs from these regulations. As this Court noted in a slightly different context: Although plaintiffs are undoubtedly faced with some uncertainty respecting their future pricing policies, they are under no present obligation to do anything, there is no immediate and substantial threat of sanctions or expected conformity to any final statutory directive, and it is distinctly possible that plaintiffs may prevail at the administrative level and their nightmare scenario respecting penalties may never come to pass. National Distillers and Chemical Corp. v. DOE, 498 F.Supp. at 719. The Court therefore will not address the remaining contentions of plaintiffs, because they have failed to meet this critical element. The Court will instead dismiss the actions as unripe. An order will issue in accordance with this opinion. NOTES [1] These objectives included protection of public health, safety and welfare, and the national defense; maintenance of all public services; maintenance of agricultural operations; preservation of an economically sound and competitive petroleum industry; allocation of crude oil to refineries to permit operation at full capacity; equitable distribution of petroleum products at equitable prices among all regions of the country and sectors of the petroleum industry; allocation of petroleum products as necessary for maintenance, exploration, and production of fuels and minerals; economic efficiency; and minimization of economic distortion. 15 U.S.C. § 753(b)(1)(A)-(I). [2] The regulations defined "average markup" as "the total revenues in all sales of crude oil by the reseller in a particular month less the total costs and expenses associated with sales of crude oil in the month, divided by the number of barrels sold by the reseller in the month." 10 C.F.R. 212.182 (1978). [3] The regulation defined "permissible average markup" in two different ways. Generally, for those engaged in crude oil resale before or during May 1973, the PAM is the total lawful revenues in all sales of crude oil by the reseller in May 1973, less all allowed costs and expenses, divided by the number of barrels sold during that month. For those resellers who had not sold crude oil before May 1973, the PAM is the total lawful revenues in all sales of crude oil during November 1977, less the costs and expenses, plus the unrecovered per barrel increase in administrative expense and transportation and gathering cost incurred since the reseller's first month of crude oil sales. 10 C.F.R. 212.182 (1978). [4] The regulation provides four exceptions to this rule: "(i) the reseller was the importer of record or (ii) the reseller purchased the crude oil from the producer of that crude oil or (iii) the reseller sells the crude oil to a refiner which certifies in writing to the reseller that the crude oil is being purchased for refining purposes, or (iv) the reseller receives certification from the refiner which refines the crude oil that such refiner would not have received the crude oil but for the reseller's service." 10 C.F.R. 212.183(a). [5] Venue in this action is governed by 28 U.S.C. § 1391(e)(4). That section provides: "A civil action in which each defendant is an officer or employee of the United States or any agency thereof ... or an agency of the United States, may ... be brought in any judicial district in which ... (4) the plaintiff resides if no real property is involved in the action." [6] For purposes of this statute, residence of a corporation is defined as the state of incorporation. See Amoco Production Co. v. DOE, 469 F.Supp. 236, 243 (D.Del.1979). [7] Rule 21 provides: "Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21. [8] Rule 15(a) provides: "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). [9] Even though administrative compliance proceedings have begun, the mode of analysis is similar to that of pre-enforcement review. See Exxon Corp. v. FTC, 588 F.2d 895, 901 (3d Cir. 1978); Texaco, Inc. v. DOE, 490 F.Supp. at 887 n. 18. [10] Those challenges that would require factfinding, such as plaintiffs' void-for-vagueness claim, could be severed and dismissed as unripe. See Phillips Petroleum Co. v. FEA, 435 F.Supp. at 1246 n.8. In view of the Court's disposition of the ripeness issue it is unnecessary to decide which of these claims would fall within this category. [11] After an NOPV, the agency may issue a Proposed Remedial Order (PRO). The party may then file a Notice of Objection and receive a hearing before the Office of Hearings and Appeals (OHA). After such a hearing the agency may issue a Remedial Order (RO) which may be challenged before the Federal Energy Regulatory Commission (FERC). Only after such a hearing is concluded is an order "final" within the agency. See generally 42 U.S.C. § 7193(c). [12] The elements addressed by the court in Standard Oil may enter into the determination of whether there was direct and immediate impact. For instance, in Texaco, Inc. v. DOE, Judge Stapleton noted: The cost of defending an administrative enforcement proceeding and the injury to reputation resulting from the institution of such a proceeding can be factors to be considered in determining whether a party complaining of agency action has shown that the action has a direct and immediate impact upon it. In and of themselves, however, they do not constitute the burden required by the ripeness doctrine to warrant immediate judicial review. 490 F.Supp. at 889 (citations omitted) (emphasis added). In this case, however, plaintiffs admit that the hardship stems solely from this potential liability. The court in Texaco further explained that if mere costs and injury to reputation were sufficient, "judicial pre-emption of the administrative process would be the rule rather than the exception." Id.	{ "pile_set_name": "FreeLaw" }
586 F.2d 843 Cobbv.Kette No. 78-3434 United States Court of Appeals, Sixth Circuit 10/24/78 S.D.Ohio AFFIRMED	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit ____________ Nos. 06-3057, 06-3658, 06-3660 & 06-4047 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR GOODWIN, a/k/a BLOCK, a/k/a SKEEZY, JERMAL PHILLIPS, TIMOTHY DOERR, and LEO BROWN, JR., Defendants-Appellants. ____________ Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. Nos. 04-19-CR-01, 04-19-CR-02, 04-19-CR-014 & 04-19-CR-17— Richard L. Young, Judge. ____________ ARGUED MAY 4, 2007—DECIDED JULY 23, 2007 ____________ Before POSNER, MANION, and KANNE, Circuit Judges. MANION, Circuit Judge. A jury convicted Victor Goodwin, Leo Brown, Jr., Timothy Doerr, and Jermal Phillips of multiple counts of drug trafficking and other related offenses stemming from a multi-state conspiracy. Follow- ing their convictions, the four defendants filed a con- solidated appeal challenging various aspects of their respective convictions and sentences. We affirm. 2 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 I. Victor Goodwin, Leo Brown Jr., Timothy Doerr, and Jermal Phillips (collectively the “Appellants”) were among twenty-one defendants named in a July 14, 2004, federal indictment charging drug trafficking and related offenses. Specifically, the Appellants and seventeen co-defendants were charged with conspiring to possess with the intent to distribute and to distribute in excess of fifty grams of cocaine base, in excess of five kilograms of cocaine, and in excess of 100 grams of heroin and marijuana (Count One). Goodwin also was charged with distribution of in excess of five grams of cocaine base (Counts Five, Six, Seven, Nine, and Twelve), distribution of in excess of fifty grams of cocaine base and cocaine (Counts Eleven and Thirteen), and possession with the intent to distribute in excess of fifty grams of cocaine base, cocaine, and heroin (Count Twenty-five). Brown, Doerr, and Phillips addi- tionally were charged with the use of a telephone to facilitate the distribution of cocaine and cocaine base (Count Seventeen). Finally, Phillips also was charged with distribution of in excess of five grams of cocaine base (Count Fourteen). The basic facts of the drug conspir- acy, the object of which was to traffic drugs from Chicago for sale in southern Indiana, are not challenged on appeal. In 2003, law enforcement in Evansville, Indiana, first discovered one tentacle of the conspiracy’s illegal drug activity, which resulted in a joint federal, state, and local law enforcement investigation spanning three states. The investigation began with a series of controlled purchases of cocaine base and cocaine from several individuals, in- cluding Goodwin and Phillips. While the controlled buys allowed law enforcement to discover some of the con- spiracy’s Evansville-based, lower-level participants, those Nos. 06-3057, 06-3658, 06-3660 & 06-4047 3 street dealers did not disclose information regarding the primary source of the drugs and high-level dealers at the top of the conspiracy’s hierarchy. The results of the in- itial investigation, however, provided the Drug Enforce- ment Administration (“DEA”) with a basis to apply for a warrant authorizing electronic telephone wire surveil- lance against known members of the conspiracy. On April 29, 2004, the district court authorized the electronic wire surveillance of two telephones used by Michael Hardiman and a second individual. During the course of the electronic telephone wire surveillance, law enforce- ment authorities intercepted numerous conversations involving the Appellants, which detailed their distribu- tion of cocaine base and cocaine. Based on the information gained from the confidential informants and the electronic telephone wire surveillance, the government obtained indictments against the Appel- lants and their co-conspirators. Many of the Appellants’ co- conspirators, including Hardiman, pleaded guilty and testified against the Appellants during their trial, which began on February 6, 2006, and concluded less than two weeks later. The jury found the Appellants guilty on all counts. Goodwin then moved for a new trial, and later was joined in his motion by the other Appellants. The district court denied Goodwin’s motion. Goodwin, Brown, Doerr, and Phillips filed a consolidated appeal challenging various aspects of their respective convictions and sentences. Additional details and the facts underlying the Appellants’ theories and claims are set forth, as relevant, in the analysis below. 4 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 II. On appeal, the Appellants first collectively challenge the district court’s orders of April 29, 2004, and May 27, 2004, that authorized and then re-authorized electronic tele- phone wire surveillance on certain members of the conspir- acy. Specifically, the Appellants argue that it was unneces- sary for the government to use electronic telephone wire surveillance in its investigation of the conspiracy because the continued use of confidential informants would have been more than sufficient to expose the entirety of the criminal activity and enterprise. This court reviews a district court’s decision regarding the necessity of elec- tronic telephone wire surveillance for abuse of discretion, “giving substantial deference to the determination of the issuing judge.” United States v. Zambrana, 841 F.2d 1320, 1329-30 (7th Cir. 1988). While probable cause is all that is needed for the govern- ment to obtain a search warrant, to obtain a warrant for electronic telephone wire surveillance under 18 U.S.C. § 2518(1)(c), the government must demonstrate a factual basis for its “ ‘statement as to whether or not other investi- gative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.’ ” Zambrana, 841 F.2d at 1329 (quoting 18 U.S.C. § 2518(1)(c)). “In this circuit, we will affirm a district court’s finding that normal investigative procedures [were] unlikely to be successful . . . [as long as] there exist[ed] a factual predicate in the affidavit.” Id. at 1330 (internal citations and quotations omitted). Accordingly, we look to the affidavits that the government supplied to support its two applications for electronic telephone wire surveillance. Here, the government’s original forty-two-page affidavit in support of its application, and its sixty-four-page Nos. 06-3057, 06-3658, 06-3660 & 06-4047 5 affidavit in support of its re-application, reasonably explained why the continued use of confidential infor- mants would not accomplish the goals of the investigation and why a new method of surveillance was necessary. The government’s affidavits also stated that, while the gov- ernment initially had success using confidential infor- mants, that technique likely would yield limited future results because of the informants’ reluctance to testify, their inability to identify suppliers within the organization outside of Evansville, their inability to identify all of the local distributors within the organization, and their lack of information concerning locations used by the organization to store drugs outside of Evansville. Finally, the govern- ment’s affidavits stated that information gleaned from the electronic telephone wire surveillance could be used to recruit future confidential informants who subsequently could be used instead of relying on future electronic surveillance. Based upon the information contained in the government’s affidavit—the validity of which the Appel- lants have not challenged—we find that the district court did not abuse its discretion in authorizing the electronic telephone wire surveillance, which was necessary for the government’s investigation. Second, the four Appellants collectively argue that the district court should have granted the Appellants’ motion for a new trial.1 The Appellants’ motion for a new trial was based on a document purporting to be a trial witness’ admission of perjury. This court reviews a district court’s denial of a motion for a new trial based on the alleged use of perjured testimony for abuse of discretion. United States v. Payne, 102 F.3d 289, 291-92 (7th Cir. 1996). 1 Goodwin originally brought the motion for a new trial, and the other three Appellants subsequently joined. 6 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 The Appellants proffered a document in support of their motion for a new trial that purported to be a notarized statement from Seneca Binder, a former informant who testified against the Appellants. In the document, which the Appellants appended to their motion, Binder apolo- gized for “committing an act of perjury in the trial of U.S. -vs- Goodwin” and for testifying “falsely against Mr. Goodwin.” On June 1, 2006, the district court held a hearing on the motion. The Appellants called Binder as a witness. Binder testified that it was his signature on the document, but he did not draft or read the document prior to signing it. He also testified that he felt threatened by another jail inmate when told to “put your name right here,” and stated that a notary was not present when he signed the document. Binder then informed the district court that the contents of the document were untrue and reaffirmed the truth of his testimony at trial. Based on Binder’s testimony during the hearing, the district court denied the Appellants’ motion for a new trial. On appeal, the Appellants rely solely on Binder’s alleged recantation letter to support their argument. In light of Binder’s testimony regarding the coercive and dubious circum- stances under which he signed the letter, we find that the district court did not abuse its discretion in denying the Appellants’ motion for a new trial. Third, the Appellants collectively argue that the district court should not have allowed DEA Special Agent Douglas Freyberger to testify at trial as an expert witness on drug code language. Specifically, the Appellants assert that because Special Agent Freyberger testified at trial on the government’s behalf as a fact witness based on his role as a case agent, the district court should have barred him from also testifying as an expert in interpreting drug code Nos. 06-3057, 06-3658, 06-3660 & 06-4047 7 language. The Appellants are not challenging the reliability or relevance of Special Agent Freyberger’s testimony. Accordingly, the Appellants’ challenge is based solely on their contention that Special Agent Freyberger’s testimony as both a fact witness and an expert witness was confusing to the jury and thus unduly prejudicial to them.2 This court reviews a district court’s decision to admit expert testi- mony for abuse of discretion. United States v. Ceballos, 302 F.3d 679, 686 (7th Cir. 2002). We previously have held that while testimony in dual roles could be confusing, it is permissible provided that the district court takes precautions to minimize potential prejudice. United States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002) (“Although we have acknowledged that there is a greater danger of undue prejudice to the defendants when a witness testifies as both an expert and a fact 2 At the onset of Special Agent Freyberger’s testimony, the government asked a series of questions to establish Special Agent Freyberger’s qualification as an expert in drug code language. We note that “[t]his Court has recognized that narcotics code words constitute an appropriate subject for ex- pert testimony, and that federal agents who have training and experience in drug-related transactions, crimes and prosecu- tion are qualified to give expert testimony concerning the practices of those engaged in this type of activity.” United States v. Hughes, 970 F.2d 227, 236 (7th Cir. 1992) (internal citations and quotations omitted). The government’s examination of Special Agent Freyberger revealed that he had extensive experience in this area of law enforcement, and in particular the lingo used in the illegal drug trade. On appeal, the Appellants do not challenge Special Agent Freyberger’s qualification as an expert, and concede that he “may have been qualified as an expert in ‘code talk’ in drug conspiracies.” 8 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 witness, we have also indicated that a police officer may permissibly testify in both capacities.” (internal citations omitted)). “The potential for prejudice in this circumstance can be addressed by means of appropriate cautionary instructions and by examination of the witness that is structured in such a way as to make clear when the witness is testifying to facts and when he is offering his opinion as an expert.” Id. In this case, to avoid jury confusion and prejudice to the Appellants, the district court gave a pattern jury instruction regarding expert testimony and permitted the Appellants’ respective counsels to cross- examine Special Agent Freyberger extensively. Further, Special Agent Freyberger’s testimony was limited to two subjects: (1) the foundation for the wiretaps (as a fact witness); and (2) interpretation of code language used (as a expert witness). While Special Agent Freyberger pro- vided his testimony in both capacities during a single trip to the witness stand, the government structured its ques- tioning to prevent the two discrete subject matters of his testimony from overlapping. Accordingly, the district court did not abuse its discretion when it permitted Special Agent Freyberger to testify both as a fact witness and as an expert witness. Fourth, Brown and Doerr (but not the other two Appel- lants) argue that the district court erred in determining the amount of drugs for which each was responsible for purposes of calculating their advisory Guideline sentenc- ing ranges. Specifically, Brown and Doerr contest the attribution of their co-conspirators’ drug quantities in the calculation of the quantity of drugs for which they are responsible. This court reviews a district court’s factual findings for purposes of determining the applicable advisory Guideline range for clear error. United States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006). Nos. 06-3057, 06-3658, 06-3660 & 06-4047 9 It is well settled that “[i]n a drug conspiracy each con- spirator is responsible not only for drug quantities directly attributable to him but also for amounts involved in transactions by coconspirators that were reasonably foreseeable to him.” Id. (citing United States v. Paters, 16 F.3d 188, 191 (7th Cir. 1994)); U.S.S.G. § 1B1.3(a)(1)(B). A co-conspirator’s conduct is reasonably foreseeable if the defendant-conspirator “ ‘demonstrated a substantial degree of commitment to the conspiracy’s objectives, either through his words or his conduct.’ ” United States v. Zarnes, 33 F.3d 1454, 1474 (7th Cir. 1994) (quoting United States v. Edwards, 945 F.2d 1387, 1394 (7th Cir. 1991)). For sentencing purposes, the Federal Rules of Evidence do not apply, and the district court may consider a broad range of information. United States v. Johnson, ___ F.3d ___ , 2007 WL 1583993, at *2 (7th Cir. June 4, 2007) (stating that “a dis- trict court in determining a sentence is not bound by the same stringent evidentiary standards as are applicable in a criminal trial”). Here, the district court considered a wide array of evidence showing that both Brown and Doerr were heavily involved in a conspiracy to distribute kilograms of cocaine and cocaine base. Specifically, the district court found that the evidence gathered from the co-conspirators’ testimony and conversations involving and regarding Brown and Doerr obtained from electronic telephone wire surveillance confirmed drug amounts attributable to the conspiracy in excess of 500 grams of cocaine base and in excess of five kilograms of cocaine. In particular, the district court considered the quantity of drugs to which Brown’s and Doerr’s co-conspirator Hardiman pleaded guilty. Hardiman, who named Brown as his cocaine and cocaine base supplier, admitted to distributing at least 500 grams of cocaine base and an additional one kilogram quantity of cocaine, which, when 10 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 aggregated, converted to 10,000 to 30,000 kilograms of marijuana and resulted in a base offense level of 36. Although the jury’s verdict forms could be interpreted to indicate a finding that the conspiracy was responsible for lower amounts of cocaine and cocaine base,3 the district court considered the totality of the evidence and sentenced 3 For each of the four Appellants, the jury was provided with a separate verdict form. Regarding Count One, the conspiracy charge, each Appellant’s respective verdict form asked the jury to find beyond a reasonable doubt whether the Appellant was guilty or not guilty. After having found each of the Appel- lants guilty of the offense changed in Count One, each of the four verdict forms identically instructed the jury to determine the amount of drugs “involved in the conspiracy.” That query was divided into two separate questions, one regarding the amount of cocaine base and one regarding the amount of cocaine, with four potential ranges from which to select for each. Despite the fact that these questions asked the jury to make a finding regarding the total amount of each drug for the conspiracy, rather than for each individual defendant, the jury found different amounts of drugs attributable to the con- spiracy on three of the four verdict forms. On Brown’s verdict form, the jury found beyond a reasonable doubt a conspiracy to distribute in excess of 500 grams but less than five kilograms of cocaine, but no cocaine base. On Doerr’s verdict form the jury found beyond a reasonable doubt a conspiracy to distribute and possess with intent to distribute in excess of five grams but less than fifty grams of cocaine base, but no cocaine. Phillips’ verdict form contained identical quantities as Doerr’s verdict form. Finally, Goodwin’s verdict form contained the highest findings of drug quantity, with the jury finding beyond a reasonable doubt a conspiracy to distribute in excess of fifty grams of cocaine base and 500 grams but less than five kilo- grams of cocaine. Neither party addressed these discrepancies in their briefs or at oral argument. Nos. 06-3057, 06-3658, 06-3660 & 06-4047 11 Brown and Doerr based on the quantity to which Hardiman admitted distributing. The district court was not bound by the jury’s findings regarding drug quantity or type on the Appellants’ verdict forms, or even by the evidence that the jury considered. See United States. v. Jones, 371 F.3d 363, 369 (7th Cir. 2004) (stating that “a judge may consider otherwise inadmissible evidence in calculating a sentence” provided that the “evidence upon which the judge relies” has “ ‘sufficient indicia of reliability’ ”). Further, a district court judge makes findings for sen- tencing purposes under the preponderance of the evidence standard of proof, rather than the reasonable doubt standard of proof used by the jury in determining guilt. United States v. Sliman, 449 F.3d 797, 800 (7th Cir. 2006) (stating that “the district court is to use the preponderance of evidence standard of proof when finding facts that affect a defendant’s sentence”). Thus, so long as the dis- trict court’s sentence did not exceed the statutory maxi- mum allowed based on the jury’s findings as to the amounts attributable to the conspiracy, the district court is not bound by the jury’s finding. See United States v. Macedo, 371 F.3d 957, 963 (7th Cir. 2004) (citing United States v. Hernandez, 330 F.3d 964, 981 (7th Cir. 2003) (reasoning that Apprendi is inapplicable when the defendant is sen- tenced below the statutory maximum for the charged offense)); see also United States v. Booker, 543 U.S. 220, 244 (2005) (stating that “[a]ny fact (other than a prior con- viction) which is necessary to support a sentence exceed- ing the maximum authorized by the facts established by . . . a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt”). In this case, Brown and Doerr do not claim that their sentences exceeded the statutory maximum allowable based on the jury’s findings. Therefore, based on the totality of the 12 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 evidence presented against Brown and Doerr at trial and during the sentencing hearing regarding the total quantity of drugs involved in the conspiracy, as well as their di- rect involvement with significant quantities of those drugs, we find that the district court did not clearly err in calculating the applicable advisory Guideline ranges for Brown and Doerr. Finally, Doerr alone argues that the district court erred by denying his motion for severance. This court reviews a district court’s refusal to grant a motion for severance for abuse of discretion. United States v. Donovan, 24 F.3d 908, 915 (7th Cir. 1994). It is well settled that co-conspirators who are charged together generally should be tried to- gether. United States v. Carrillo, 435 F.3d 767, 778 (7th Cir. 2006) (citing Zafiro v. United States, 506 U.S. 534, 537 (1993)). “The district court is given wide discretion in determin- ing when the prejudice of joinder outweighs the benefits of a single trial.” Id. (citing Fed. R. Crim. P. 14). “In all but the most unusual circumstances, the risk of prejudice arising from a joint trial is outweighed by the economies of a single trial in which all facets of the crime can be ex- plored once and for all.” Id. (internal citations and quota- tions omitted). In short, “[s]everance should be granted ‘only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” Id. (quoting Zafiro, 506 U.S. at 539). Here, Doerr based his motion for severance upon his intent to employ at trial the affirmative defense of reliance on public authority based on his prior status as a confiden- tial informant for the government. The district court, however, found that Doerr was not entitled to assert the public authority defense because the electronic telephone wire surveillance revealed that Doerr engaged in freelance Nos. 06-3057, 06-3658, 06-3660 & 06-4047 13 drug dealing distinct from the controlled deals that he made at the government’s instruction as a then-confidential informant. In other words, the district court found that Doerr was attempting to play both sides of the street by continuing to deal drugs independently while making separate controlled buys for the government. Doerr does not challenge the district court’s ruling, and thus the public authority defense cannot serve as the basis for his challenge to the district court’s denial of his motion for severance. Moreover, even if Doerr could have asserted the public authority defense, his assertion of that affirmative defense would not have required severance because mutually antagonistic defenses mandate severance only if acceptance of one defendant’s defense precludes the acquittal of another defendant, and Doerr’s affirmative defense did not. Id. (“The mere presentation of mutually antagonistic defenses does not require severance.” (citing Zafiro, 506 U.S. at 538)). Further, the district court did not prevent Doerr from introducing evidence of his past cooperation with the government, and it allowed Doerr to cross-examine the government’s witnesses regarding his service as a confidential informant. Accordingly, Doerr has failed to demonstrate that he was unduly prejudiced from being tried jointly with his co-conspirators, and we find that the district court did not abuse its discretion by denying Doerr’s motion for severance. III. The district court did not err in authorizing and then re- authorizing electronic telephone wire surveillance on certain members of the conspiracy, denying the Appellants’ motion for a new trial, allowing DEA Special Agent Douglas Freyberger to testify at trial as an expert witness, 14 Nos. 06-3057, 06-3658, 06-3660 & 06-4047 determining the amount of drugs for which Brown and Doerr each were responsible for purposes of calculating their advisory Guideline sentencing ranges, or denying Doerr’s motion for severance. Accordingly, we AFFIRM the Appellants’ convictions and sentences. A true Copy: Teste: _____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—7-23-07	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs November 23, 2010 STATE OF TENNESSEE v. STEVEN F. SMITH Appeal from the Criminal Court for Sullivan County No. S54,177 R. Jerry Beck, Judge No. E2009-02354-CCA-R3-CD - Filed June 23, 2011 The Defendant, Steven F. Smith, appeals as of right from the Sullivan County Criminal Court’s revocation of probation and order of incarceration. The Defendant contends that the trial court erred in rejecting his defense of insanity. Following our review, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed. D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES, J., joined. N ORMA M CG EE O GLE, J., filed a separate concurring opinion. David G. Mullins, Bristol, Tennessee, for the appellant, Steven F. Smith. Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; H. Greeley Wells, Jr., District Attorney General; and Janine M. Myatt, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION In November 2007, the Defendant was indicted on one count of arson, a Class C felony. See Tenn. Code Ann. § 39-14-301. On April 24, 2008, the Defendant pled guilty to one count of attempted arson. Pursuant to the plea agreement, the Defendant was classified as a Range II, multiple offender and sentenced to five years. The trial court ordered that six months of the sentence be served in confinement with the remainder to be served on supervised probation. One of the conditions of the Defendant’s probation was that he “be compliant with mental health treatment through . . . provider[s] as directed by the probation officer.” On October 8, 2008, a violation warrant was issued against the Defendant alleging the Defendant had failed “to take certain psychotropic medications” as directed by Lake Shore Mental Health Hospital. A second violation warrant was issued on October 23, 2008, alleging that the Defendant had committed simple assault and had engaged in “assaultive, abusive, threatening, or intimidating behavior” toward his mother. Prior to the revocation hearing, at the request of defense counsel, the trial court ordered a mental health evaluation for the Defendant. At the revocation hearing, the State began by presenting evidence regarding the first violation warrant. Penny M. Tester, a nurse at the Sullivan County Jail and health administrator for the Sullivan County Sheriff’s Department, testified that in October 2008, the Defendant was prescribed several different antipsychotic medications. Ms. Tester testified that during the month of October 2008 the Defendant “had several weeks . . . of not wanting to take the medication.” Ms. Tester further testified that the Defendant had been diagnosed with paranoid schizophrenia and that without his medication he had “behavior issues” and “hear[d] voices, external and internal stimuli.” According to Ms. Tester, the Defendant would also “become[] angry,” hurt himself, and could not be reasoned with when he stopped taking his medication. Lori Ann Fennell was employed by Frontier Health as a mental health liaison for Sullivan County in October 2008. Ms. Fennell testified that she was “aware that Lakeshore had prescribed medications” for the Defendant and that “he had not been taking his medication.” Ms. Fennell further testified that she “advise[d] [the Defendant] that it was in his best interest to take the medication.” The State then presented evidence regarding the second violation warrant. Deputy Roy W. Harrison, Jr. of the Sullivan County Sheriff’s Department testified that he was working at the Sullivan County Jail on October 9, 2008. On that day, the Defendant was on suicide watch when Deputy Harrison was transporting him to meet with the mental health staff. Deputy Harrison and the Defendant were in the back of an elevator when the Defendant grabbed another inmate and “put him in a choke hold.” Deputy Harrison and another officer separated the two inmates. Deputy Harrison testified that the other inmate had done nothing to provoke the Defendant prior to the attack. Susan Emrick Poore testified that she was the Defendant’s mother and that on October 18, 2008, she received a phone call from the Defendant. During that phone call the Defendant said, “If I ever see you again you’re f-----g dead.” Ms. Poore testified that this scared her “because [she had] never quite heard anything like that.” Following the State’s proof, defense counsel entered into evidence a letter from Frontier Health. The letter stated that Dr. Diane L. Whitehead had performed a mental health evaluation on the Defendant in anticipation of the revocation hearing. Dr. Whitehead concluded that the Defendant was competent to participate in the revocation hearing. Dr. Whitehead then opined that “at the time of the commission of the acts constituting the alleged -2- offense,”1 the Defendant was “suffering from a severe mental disease or defect which prevented him from appreciating the nature or wrongfulness of such acts.” The letter further stated that the Defendant “was psychotic and required an inpatient hospitalization” at the time of the alleged probation violation. Dr. Whitehead concluded that “the information suggest[ed] that the [D]efendant was suffering from a severe mental disease or defect and therefore did lack[] the capacity to act with intent.” The trial court concluded that the State had proven by a preponderance of the evidence that the Defendant had violated the terms and conditions of his probation. However, the trial court also concluded that the Defendant had proven by a preponderance of the evidence that at the time of the violations “he suffer[ed] from a mental condition that would prevent him . . . from understanding the nature of his conduct.”2 The trial court also stated that the “State offered no proof contrary” to the Defendant’s showing of insanity. The trial court reasoned that the outcome of the case would depend upon whether insanity was a defense to an alleged probation violation. Relying on this court’s opinions in State v. Glen R. Gregory, No. 89- 157-III, 1990 WL 20806 (Tenn. Crim. App. March 8, 1990) (Wade J.), and State v. Clarence Stevens, No. 03C01-9412-CR-00442, 1995 WL 256704 (Tenn. Crim. App. May 3, 1995), the trial court concluded that insanity is not a defense to a probation violation, but instead is considered as a mitigating factor. The trial court reasoned that the Defendant could have “been helped if he had taken his medications,” but that he did not and that “the public could be harmed if [it] mitigated his sentence.” Accordingly, the trial court concluded “the mitigation is not sufficient to diminish the punishment” and ordered the Defendant to serve the remainder of his five-year sentence in confinement. ANALYSIS The Defendant contends that the trial court erred in concluding that the defense of insanity does not apply to probation violations. The Defendant, relying on this court’s opinion in State v. Marsha Karen Yates, contends that the proper standard when a defendant “raises a statutory defense in response to the underlying criminal offense in a probation revocation hearing” is that the State must “prove by a preponderance of [the] evidence that the statutory defense does not apply.” No. E2003-01900-CCA-R3-CD, 2004 WL 1467636, 1 At the beginning of the evaluation, Dr. Whitehead stated that the Defendant was referred to her for a “determination of his mental condition at the time of the alleged offense . . . the charge of Assault [sic].” 2 At the revocation hearing, the trial court ruled that Dr. Whitehead’s conclusion that the Defendant was suffering from a severe mental disease or defect at the time of the assault on October 9, 2008, applied to the events alleged in both of the violation warrants. However, it is clear from the first paragraph of Dr. Whitehead’s letter that her determination applied only to the matters covered in the second violation warrant and not to those covered in the first violation warrant. -3- at 5 (Tenn. Crim. App. June 30, 2004). Therefore, the Defendant contends the trial court’s decision must be reversed because the State presented no evidence that the Defendant was mentally competent at the time of the probation violations. The State responds that the trial court was correct in ruling that insanity is not a defense to a probation violation. The State responds that the trial court properly considered the Defendant’s mental condition as a mitigating factor but determined that the mitigation was “not sufficient to diminish the punishment.” Accordingly, the State concludes, the trial court did not abuse its discretion in ordering the Defendant to serve the remainder of his sentence in confinement. A trial court may revoke a sentence of probation upon finding by a preponderance of the evidence that the defendant has violated the conditions of his release. Tenn. Code Ann. § 40-35-311(e). A trial court is not required to find that a violation of probation occurred beyond a reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). “The evidence need only show [that the trial court] has exercised conscientious judgment in making the decision rather than acting arbitrarily.” Id. In reviewing the trial court’s finding, it is our obligation to examine the record and determine whether the trial court has exercised a conscientious, rather than an arbitrary, judgment. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). In order to conclude that the trial court abused its discretion, there must be no substantial evidence to support the determination of the trial court. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Such a finding “‘reflects that the trial court’s logic and reasoning was improper when viewed in light of the factual circumstances and relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). Upon concluding that a defendant has violated the conditions of his release, the trial court may revoke the probationary sentence and either “commence the execution of the judgment as originally entered” or “[r]esentence the defendant for the remainder of the unexpired term to any community-based alternative to incarceration.” Tenn. Code Ann. § 40-35-311(e). This court has repeatedly agreed with the majority view of other jurisdictions that in the context of a probation violation, insanity is not a defense but “may only be considered as mitigating evidence.” State v. Lee Bell, Jr., No. W1999-01906-CCA-R3-CD, 1999 WL 1532152, at 2 (Tenn. Crim. App. Dec. 20, 1999); see State v. Jeffrey D. Hunter, No. 01C01- 9608-CC-00334, 1997 WL 672650, at 3 (Tenn. Crim. App. Oct. 30, 1997) (Wade, J.), aff’d, 1 S.W.3d 643 (Tenn. 1999); Stevens, 1995 WL 256704 at 1; Gregory, 1990 WL 20806 at 3; see also Caroll J. Miller, Annotation, Probation Revocation: Insanity as Defense, 56 A.L.R. 4th 1178 (1987). However, a panel of this court in Yates concluded that the defense of necessity was available in a probation violation hearing. 2004 WL 1467636 at 5. In Yates, the court did not address this court’s line of cases declaring that insanity is not a defense to a probation violation. Instead, the court relied on the reasoning of courts from the minority jurisdictions that recognize insanity as a defense to a probation violation. Id. The -4- court concluded that “a defendant may raise a statutory defense during a revocation hearing to the extent that the violation of probation is based upon an allegation that the defendant has committed a criminal offense.” Id. The court reasoned that to do otherwise “would permit a defendant’s probation to be revoked and confinement imposed based upon the commission of an offense that would otherwise be barred from prosecution by the existence of a statutory defense.” Id. The defendant, at a revocation proceeding, is not entitled to all of the rights associated with a criminal trial but is entitled to some quantum of due process. State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993). As part of this due process, the defendant is entitled to the right of confrontation and cross-examination, as well as the right to introduce evidence. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Wade, 863 S.W.2d at 408. We agree with the court’s decision in Yates that “[i]mplicit within these rights is the ‘opportunity to show that [the defendant] did not violate the conditions [of probation], [or] that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition.’” 2004 WL 1467636 at *4 (quoting Black v. Romano, 471 U.S. 606, 612 (1985)) (alterations in original). However, the purpose of a revocation hearing is not to determine “whether the defendant should be held responsible for the acts with which he is charged” but is instead to determine “whether the alternatives to incarceration which have been made available to a defendant remain viable.” People ex rel Gallagher v. Dist. Court of Eighteenth Judicial Dist., 591 P.2d 1015, 1017 (Colo. 1978); see also State v. O’Meal, 569 P.2d 249, 251 (Ariz. 1977) (stating that the concern of trial court at revocation hearing is whether law has been obeyed, not whether it has been culpably broken); People v. Breaux, 161 Cal. Rptr. 653, 656 (Cal. Ct. App. 1980) (stating that the purpose of revocation hearing is not to determine legal responsibility but to protect the public and further rehabilitation). To that extent, a trial court may revoke an alternative sentence based upon its “own finding of new criminal conduct” even if the defendant is later acquitted of the charges or the charges are dismissed or overturned. United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991) (quoting Taylor v. United States Parole Comm’n, 734 F.2d 1152, 1155 (6th Cir. 1984)). Furthermore, a defendant’s constitutional rights are protected by allowing him to show, if he violated the conditions of his probation, “that circumstances in mitigation suggest the violation warrants action other than revocation.” State v. Johnson, 514 P.2d 1073, 1076 (Wash. Ct. App. 1973). Accordingly, we conclude that the trial court correctly determined that insanity is not a defense to an alleged probation violation and that the trial court properly considered the Defendant’s mental state as mitigation evidence. There is nothing in the record to suggest that the trial court abused its discretion in concluding that “the mitigation [was] not sufficient to diminish the punishment” and ordering the Defendant to serve the remainder of his five- year sentence in confinement. -5- CONCLUSION Upon consideration of the foregoing and the record as a whole, the judgment of the trial court is affirmed. _________________________________ D. KELLY THOMAS, JR., JUDGE -6-	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF TEXAS No. 04-1023 IN RE ALLIED CHEMICAL CORPORATION, ET AL. On Petition for Writ of Mandamus ORDERED: 1. Relators' motion to stay consolidated trial setting and docket control order, filed March 7, 2005, is granted. All underlying proceedings are stayed in Cause No. C-4885-99-F, styled Alicia Acevedo, et al. v. Union Pacific Railroad Company, et al., in the 332nd District Court of Hidalgo County, Texas, pending further order of this Court. Done at the City of Austin, this March 28, 2005. [pic] Andrew Weber, Clerk Supreme Court of Texas By Claudia Jenks, Chief Deputy Clerk	{ "pile_set_name": "FreeLaw" }
New Found., LLC v Ademi (2016 NY Slip Op 04922) New Found., LLC v Ademi 2016 NY Slip Op 04922 Decided on June 22, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 22, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JEFFREY A. COHEN JOSEPH J. MALTESE HECTOR D. LASALLE, JJ. 2014-03624 (Index No. 5911/10) [1]New Foundation, LLC, respondent, vViktor Ademi, doing business as York Plumbing, et al., defendants, Avdyl Ademi, doing business as York Plumbing, nonparty-appellant. Mirkin & Gordon, P.C., Great Neck, NY (Katrina Worrell Ballard of counsel), for nonparty-appellant. DECISION & ORDER In an action to recover damages for breach of contract, proposed additional defendant Avdyl Ademi appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), entered May 21, 2014, which granted the plaintiff's motion, in effect, pursuant to CPLR 305(c) for leave to amend the caption to name Avdyl Ademi, doing business as York Plumbing, as a defendant instead of the named defendant David Ademi, doing business as York Plumbing. ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion is denied. The plaintiff commenced this action against, among others, David Ademi, doing business as York Plumbing, to recover damages for breach of contract. Contending that David Ademi was a nonexistent person and an alias for Avdyl Ademi, the plaintiff moved, in effect, pursuant to CPLR 305(c) for leave to amend the caption to name Avdyl Ademi, doing business as York Plumbing, as a defendant instead of the named defendant, David Ademi, doing business as York Plumbing. The Supreme Court granted the motion. We reverse. CPLR 305(c) authorizes the court, in its discretion, to "allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced" (CPLR 305[c]). Where the motion is to cure "a misnomer in the description of a party," it should be granted even if the statute of limitations has run where "(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought" (Ober v Rye Town Hilton, 159 AD2d 16, 19-20; see Tokhmakhova v H.S. Bros. II Corp., 132 AD3d 662, 662; Honeyman v Curiosity Works, Inc., 120 AD3d 1302). Here, the Supreme Court erred in granting the plaintiff's motion, as the plaintiff failed to offer any evidence that the proposed defendant was properly served with process (see Tokhmakhova v H.S. Bros. II Corp., 132 AD3d at 663; Smith v Giuffre Hyundai, Ltd., 60 AD3d 1040, 1042; Rinzler v Jafco Assoc., 21 AD3d 360, 362; Gennosa v Twinco Servs., 267 AD2d 200, [2]201). Having failed to establish that the proposed defendant was properly served, the plaintiff was not entitled to relief pursuant to CPLR 305(c) (see Fridman v New York City Tr. Auth., 131 AD3d 1202, 1204; Associated Geriatric Info. Network, Inc. v Split Rock Multi-Care Ctr., LLC, 111 AD3d 861, 862). RIVERA, J.P., COHEN, MALTESE and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
40 F.3d 1237 Laureanov.Vega NO. 94-2140 United States Court of Appeals,Second Circuit. Oct 18, 1994 Appeal From: S.D.N.Y. 92-cv-6056 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
J-S51008-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. TRAVANTI LEWIS Appellant No. 2997 EDA 2016 Appeal from the Judgment of Sentence August 23, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011962-2015 BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,* MEMORANDUM BY BOWES, J.: FILED OCTOBER 02, 2017 Travanti Lewis appeals from the August 23, 2016 judgment of sentence of six to twelve months imprisonment followed by three years of probation, which was imposed after he was convicted at a non-jury trial of criminal trespass. He challenges the sufficiency of the evidence. We affirm. The facts giving rise to Appellant’s conviction were summarized by the trial court. Roosevelt Rosenberg testified that on October 21, 2015 at approximately 12:30 A.M., he was walking home from work at 60th and Chestnut in Philadelphia to his home at 60th and Sansom. While on the 6000 block of Sansom, he observed a man in the window of his next door neighbor’s rowhome. Mr. Rosenberg saw the man try to pry open the window. When the man noticed Mr. Rosenberg walking by, he promptly stopped what he was doing and started using his cell phone. Mr. Rosenberg testified that he recognized the individual because he had previously called the police on him when he was trying to * Former Justice specially assigned to the Superior Court. J-S51008-17 break into a house on the block. Mr. Rosenberg made an in- court-identification of the Defendant. (Notes of Testimony, 6/24/16 pp. 9-16). Mr. Rosenberg called the police, and went into his own house. The police arrived and stood next to the neighbor’s door. Mr. Rosenberg stated that the basement light in the house turned off at that point. He watched from his backyard as the Defendant jumped out of the second floor window and alerted the police officers that he was running away. (Id. at 23-24). Police Officer William Kolb testified that on October 21, 2015, he and his partner, Officer Abdul Malik, responded to a burglar alarm at 6046 Sansom Street. When they arrived, they noticed the light on in the basement of the house. While standing outside the rear of the house, Officer Kolb observed a loud banging noise he perceived to be coming from the basement of the house. It sounded like a hammer or wrench banging on pipes. None of the windows or doors of the house were open. After Officers had surrounded the house for 30—40 minutes, securing the premises, Officer Kolb noticed the basement light had turned off so he ran to the back of the house. He [saw] the back upstairs window was completely wide open and heard rustling in the alleyway. He was subsequently notified by radio that Sergeant [Andre] Simpson had a male stopped on the block. (Id. at 32-38). Sergeant Simpson testified that officers ran after the Defendant in the alleyway. While he was speaking with the neighbor, Mr. Rosenberg, [he] noticed that the Defendant was actually standing down the street at towards [sic] 60th Street. When Sergeant Simpson stepped down onto the sidewalk, looking in the Defendant’s direction, he dipped in between two cars and continued running and ducking. Sergeant Simpson eventually ordered him down off the porch of a house at 6017 Sansom and officers placed him in custody. The Defendant was bleeding profusely. He matched the original description provided by Mr. [Rosenberg] in his 911 call. (Id. at 42-48). The Commonwealth also called Anthony DiLella, a member of the BTR Commercial Holdings LLC, which owns the property at 6046 Sansom Street, to testify. He stated that he did not know the Defendant and the Defendant had no permission or lease to -2- J-S51008-17 be inside the property on October 21, 2015. At that time, the company was trying to re-rent the house because the prior tenant had recently moved out. The rental property was habitable at the time, with running water and electricity. (Id. at 53-55). Trial Court Opinion, 12/21/16, at unnumbered 1-3. Appellant presents one question for our review: “Was not the evidence insufficient to convict [A]ppellant of criminal trespass, graded as a felony of the second degree, where there was insufficient evidence that [A]ppellant gained entry into the property by force, breaking, intimidation, unauthorized opening of locks or through an opening not designed for human access?” Appellant’s brief at 3. He contends that there was no evidence that he gained entry to the house through force, and thus, the conviction of second- degree rather than third-degree criminal trespass was not supported by the evidence. In reviewing the sufficiency of the evidence, we are required to “determine ‘whether the evidence admitted at trial, and all the reasonable inferences derived therefrom viewed in favor of the Commonwealth as verdict winner, supports the [fact finder’s] finding of all the elements of the offense beyond a reasonable doubt.’” Commonwealth v. Packer, 2017 Pa. LEXIS 1942 n.3 (Pa. 2017) (quoting Commonwealth v. Cash, 137 A.3d 1262, 1269 (Pa. 2016)). Criminal trespass is defined in relevant part as: (a) Buildings and occupied structures. -3- J-S51008-17 (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he: (i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof. (2) An offense under paragraph (1)(i) is a felony of the third degree, and an offense under paragraph (1)(ii) is a felony of the second degree. (3) As used in this subsection: “Breaks into.” —To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access. 18 Pa.C.S. § 3503 (emphasis added). Appellant was charged with violating § 3503(1)(ii), criminal trespass by breaking into a building or occupied structure. He contends that the Commonwealth failed to establish that he broke into the property located at 6046 Sansom Street as required to sustain a conviction for second-degree felony criminal trespass. According to Appellant, Mr. Rosenberg’s testimony that Appellant was “trying to break in” was conjecture, supported only by Mr. Rosenberg’s observation that Appellant was standing suspiciously around the property. Appellant’s brief at 10. Appellant points out that there was no damage to the house, the front, back door and side windows were locked, and Officer Kolb did not see an open second floor window. The officer merely noticed a basement light initially was on, and then was turned off, -4- J-S51008-17 and then the officer saw an open upstairs window, heard a dog barking, and heard rustling in the backyard. Appellant acknowledges that Mr. Rosenberg observed him exiting from the second floor window of the house. He contends, however, this evidence failed to establish that he gained entry to the house by force as defined in the statute. While such evidence may have supported a conviction of a lesser degree of criminal trespass, Appellant maintains that it does not make out a case of second-degree felony criminal trespass. In support thereof, he relies upon Commonwealth v. Cook, 547 A.2d 406 (Pa.Super. 1988), where the defendant’s opening of an unlocked door was held to be insufficient to increase the criminal trespass to a second-degree felony. According to the Commonwealth, direct evidence of breaking is not required. It relies upon Commonwealth v. Myers, 297 A.2d 151 (Pa.Super. 1972), where Appellant’s presence in front of a gas station at 3:10 a.m., where the door of the establishment had been splintered around the lock assembly, and the window closest to the doorknob broken, was sufficient to prove a forced entry. The Commonwealth contends that “strong circumstantial evidence” indicated that Appellant broke a window to enter the home. Mr. Rosenberg saw Appellant trying to pry open a window, and then pretending to look at his phone when he realized he was being observed. Mr. Rosenberg believed Appellant had already broken the window and was trying to open it, a belief that was corroborated by the fact that a -5- J-S51008-17 burglar alarm was activated, alerting police. The Commonwealth also maintains that the “breaks into” element was met with evidence of entry “through an opening not designed for human access,” namely a window. The trial court concluded there was ample evidence of “breaking.” The court relied upon Commonwealth v. Black, 580 A.2d 1391 (Pa.Super. 1990), where this Court held that evidence that a defendant tried to pry open a window of a home was legally sufficient to sustain a conviction of an attempted § 3503(a)(1)(ii) criminal trespass. The behavior constituted a substantial step to entering the home by force. The trial court herein found that Mr. Rosenberg’s testimony that Appellant was attempting to lift a closed window at 12:45 a.m., together with proof that Appellant gained access to the property, established the breaking element beyond a reasonable doubt. After a thorough review of the record, we find the evidence that Appellant broke into the property to be sufficient to sustain the conviction for second-degree felony criminal trespass. Mr. Rosenberg first observed Appellant “trying to put the window up” on the property on October 15, 2015 at approximately 12:40 a.m., as he was returning home from work. He called police on that occasion, but surmised that Appellant left before police arrived. A similar event occurred on October 21, 2015, at approximately the same time of night. Mr. Rosenberg observed Appellant trying again to open a window to gain access to the neighboring property. Appellant was wearing -6- J-S51008-17 the same hoodie that he had been wearing the prior week. Mr. Rosenberg called police to report a break in, but a burglar alarm had already alerted police who were en route. When police arrived, the house was secured. All doors and windows were locked. However, Officer Kolb could hear a banging sound emanating from the basement. The officers observed a light in that location, which was later extinguished. Shortly thereafter, Mr. Rosenberg saw Appellant jump from a second floor rear window and run away from police. He pointed out Appellant to Sergeant Simpson, who pursued Appellant. Officer Kolb verified that the previously closed second floor window was now open. Appellant was apprehended close by and identified by Mr. Rosenberg as the perpetrator. He was bleeding profusely from what was stipulated to be a fractured jaw. One of the owners of the home testified that it was habitable, and that he did not know Appellant or give him permission to enter the premises. The Commonwealth asked the trial court to infer that Appellant’s injuries were sustained when he jumped from the second floor window and, furthermore, that he was attempting to steal pipes. The court declined to infer attempted theft or burglary since there was no evidence that anything was missing or damaged. It concluded, however, that prying open a window to gain access constituted a “breaking,” and that Appellant was guilty of criminal trespass, a second-degree felony. -7- J-S51008-17 It is not the role of this Court to reweigh the evidence and substitute our judgment for that of the finder of fact. If, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, the factfinder reasonably could have determined from the evidence adduced that all of the necessary elements of the crime were established beyond a reasonable doubt, then that evidence will be deemed sufficient to support the verdict. Commonwealth v. Lewis, 911 A.2d 558 (Pa.Super. 2006). That burden may be met with proof beyond a beyond a reasonable doubt of every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Brooks, 7 A.3d 852 (Pa.Super. 2010). The fact finder credited Mr. Rosenberg’s testimony that he observed Appellant trying to break in through the window of the residence. Preliminarily, we agree with the Commonwealth that a door, rather than a window, is designed for human access. Moreover, there was considerable circumstantial evidence that Appellant broke into the residence. Mr. Rosenberg immediately reported the event as a burglary in progress to police. Simultaneously, an armed burglar alarm was tripped, and police were alerted that there was a possible intruder at the residence. When police arrived, all windows and doors were locked, but a light and noises suggested that someone was inside. The light was subsequently extinguished and, shortly thereafter, Mr. Rosenberg saw Appellant jump out of a second floor window. When Appellant was apprehended moments later, -8- J-S51008-17 he exhibited injuries consistent with the second-floor escape. Such circumstantial evidence was sufficient to support the trial court’s finding that Appellant broke into the property, and his conviction for second-degree felony criminal trespass. Judgment affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/2/2017 -9-	{ "pile_set_name": "FreeLaw" }
NO. 07-01-0117-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 14, 2001 ______________________________ THE VARIABLE ANNUITY LIFE INSURANCE COMPANY, APPELLANT V. MICHAEL J. MILLER, APPELLEE _________________________________ FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; NO. 49,285-B; HONORABLE JOHN B. BOARD, JUDGE _______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. In two issues, appellant, the Variable Annuity Life Insurance Company (VALIC), challenges a temporary injunction granted in its lawsuit against appellee Michael J. Miller (Miller) for injunctive and monetary relief for his alleged wrongful competition and use and disclosure of VALIC’s trade secrets and confidential and proprietary information. VALIC claims that (1) the scope of the injunction is too narrow as a matter of law, and (2) the exceptions to the injunction are too vague and contrary to the law and the facts. We affirm the order of the trial court. VALIC sells and services fixed and variable tax-deferred annuities to clients who work for non-profit organizations such as colleges, public school systems, non-profit healthcare organizations, and governmental entities. Miller was a sales agent who worked for VALIC from April 15, 1991, until July 14, 2000, when he resigned to begin work for a competitor, PMG/Kemper. Miller has accepted business from at least 32 former VALIC clients since his resignation. It is the contention of VALIC that Miller wrongfully used information obtained from VALIC to solicit VALIC’s clients and obtain their business on behalf of PMG/Kemper. In the order on plaintiff’s petition for temporary injunction signed on March 12, 2001, the court enjoined Miller as follows: (i). Mr. Miller is hereby enjoined and restrained, during the duration of this suit, from personally accessing, reviewing, using, or disclosing to any source, the trade secrets, confidential information, and proprietary information of VALIC, other than for the defense or prosecution of this suit. The terms “trade secrets,” “confidential information,” and “proprietary information” as used herein shall be defined in accordance with paragraph 4.3(b)(1) and (2) of the Agreement, subject to the terms of this Order; (ii). Miller shall immediately return to VALIC any original trade secrets, confidential information, and proprietary information in his or his counsel’s possession. Copies of such trade secrets, confidential information, and proprietary information produced in discovery of this cause may be retained by Mr. Miller’s counsel only for the purposes of the on-going litigation in this cause and shall not be disclosed to any source other than Plaintiff and the Court, unless otherwise ordered by the Court or upon agreed order. 2 The court further added two exceptions to the injunction as follows: b. This Order shall not prevent, restrain, or enjoin Mr. Miller from utilizing information about VALIC’s current or former customers actually received from any other source, e.g., the customer, the customer’s employer, faculty directories, the telephone book, Internet web sites or other information available to the general public or available to Mr. Miller as a result of his status or another company’s status as an approved vendor or provider of retirement products to the State of Texas; c. This Order shall not prevent, restrain, or enjoin Mr. Miller from utilizing his general knowledge, skill and experience obtained during his relationship with VALIC or prior thereto regarding any current or former VALIC customer’s identity, customer requirements and preferences, asset allocations, and account information. VALIC argues that this order fails to adequately protect it and the injunction should have prevented Miller from soliciting or accepting any business from VALIC clients he formerly serviced during the pendency of the lawsuit. VALIC relies on Rugen v. Interactive Business Systems, Inc., 864 S.W.2d 548 (Tex.App.--Dallas 1993, no writ), in support of its argument. In that case, the court found that even though a non-competition agreement was void, Sharon Rugen, a former employee of Interactive Business Systems, Inc. (IBS), had confidential information of IBS which deserved protection. Id. at 550. The trial court had entered a temporary injunction prohibiting Rugen from calling on, soliciting, or transacting business with consultants retained by IBS or IBS customers until a final judgment was rendered. Rugen complained on appeal that the order was an abuse of discretion because it enjoined competition, the information was not a trade secret, there was no showing she would wrongfully use the 3 information, and the order did not describe in reasonable detail the acts to be enjoined. The court found no abuse of discretion because Rugen was not prevented from organizing a competing firm and developing her own clients, Rugen herself considered the identity of clients, prospective clients, potential projects, and pricing information to be confidential, Rugen had such information and it was probable she would use it to IBS’s detriment, and the information contained in exhibits referred to in the injunction explicitly defined the prohibited conduct. Id. at 551-53. In the case before us, the court declined to enter as broad an injunction as the court did in Rugen and included two exceptions to the prohibited use of certain materials. We must therefore determine if the record shows a clear abuse of discretion on the part of the trial court in doing so. In our review, we draw all legitimate inferences from the evidence in the light most favorable to the trial court’s judgment. Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 598 (Tex.App.--Amarillo 1995, no writ); Bertotti v. C. E. Shepherd Co., Inc., 752 S.W.2d 648, 651 (Tex.App.--Houston [14th Dist.] 1988, no writ). The trial court abuses its discretion when it misapplies the law to the facts or when the evidence does not reasonably support the findings of probable injury or probable recovery, which are necessary to the granting of a temporary injunction. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). Under the common law, an employee may not use confidential or proprietary information acquired during the relationship adversely to his employer, and that obligation 4 survives the termination of employment. Thus, while a former employee may use the general knowledge, skill, and experience acquired during the employment relationship, he may not utilize confidential information or trade secrets acquired during the course of employment. American Derringer Corp. v. Bond, 924 S.W.2d 773, 777 (Tex.App.--Waco 1996, no writ); Miller, 901 S.W.2d at 600-01. Protected data includes compilations of information which have a substantial element of secrecy and provide the employer with an opportunity for advantage over competitors. Id. at 601; Rugen, 864 S.W.2d at 552. Examples can include pricing information, customer lists, client information, customer preferences, buyer contacts, and market strategies. Id. at 552; Bertotti, 752 S.W.2d at 644-45. Even if certain business information is confidential, the same information may be capable of being obtained by observation, experimentation, inspection, analysis or general inquiry. M. N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 632 (Tex.App.-- Houston [14th Dist.] 1992, writ denied); Jeter v. Associated Rack Corp., 607 S.W.2d 272, 275 (Tex.Civ.App.--Texarkana 1980, writ ref’d n.r.e), cert. denied, 454 U.S. 965, 102 S.Ct. 507, 70 L.Ed.2d 381 (1981). However, that information can still be protected if the competitor gains the information through a breach of confidence without the efforts of observation, experimentation, inspection, analysis or general inquiry. Dannenbaum, 840 S.W.2d at 632; Jeter, 607 S.W.2d at 275-76. 5 In its order, the court held that the covenant not to compete was an unreasonable restraint of trade and was unenforceable. The court did find, however, that VALIC had shown a probable right to recover on its common law claims for actual and probable use and/or disclosure of its trade secrets, confidential and proprietary information and probable injury from those actions. The court also found as follows: Miller, after resigning from VALIC, maintained a laptop computer, software, forms, lists, and client information that he had promised to return and keep secret. Miller has returned some of this material, but may still have such information personally or in the possession of counsel. Miller personally accessed or reviewed at least some of this information and disclosed a client list to his new employer. If a temporary injunction is not granted based on these claims, VALIC will suffer imminent harm and irreparable injury and will have no adequate remedy at law because the threat is imminent that Miller will disclose VALIC’s trade secrets, confidential information, and/or proprietary information. A temporary injunction such as the one sought by VALIC, which would prohibit Miller from contacting any customers and clients of VALIC prior to final judgment, has been found not to be an abuse of discretion. See Rugen, 864 S.W.2d at 553; Stocks v. Banner American Corp., 599 S.W.2d 665, 668 (Tex.Civ.App.--Texarkana 1980, no writ). However, that does not mean that a less restrictive injunction automatically constitutes an abuse of discretion. In Johnston v. American Speedreading Academy, Inc., 526 S.W.2d 163 (Tex.Civ.App.--Dallas 1975, no writ), a provision in a temporary injunction prohibiting the defendants from “[c]ontacting, communicating or soliciting with any customer of Plaintiff 6 derived from any customer list, customer lead, mail, printed material or other information secured from Plaintiff or its present or past employees” was proper. Id. at 165-66. This injunction did not prohibit all contact with the complainant’s customers, only that contact derived from information obtained from the complainant. The testimony at the hearing on the temporary injunction showed that a number of companies, including VALIC, were authorized to participate in the optional retirement program offered by Amarillo College, West Texas A&M University (WTAMU), and other higher education institutions. Therefore, the representative of VALIC agreed that the potential pool of customers was not a trade secret. Miller had been both a student and a teacher at WTAMU and had taught seminars at Amarillo College prior to going to work for VALIC. He had also been a VALIC client. Miller testified he built up his initial business based on the individuals he knew and friendships he had prior to working for VALIC. After commencing work for VALIC, he built up his client base as a result of referrals from those individuals and from having contact with human resource directors at institutions of higher learning, who provided him with names of new faculty members whom he knew would probably be eligible for the retirement program. Information as to faculty members was available from a faculty directory, the internet, or the human resource department. That same information would also be available to competitors of VALIC. The length of time an individual had worked at a particular school and his title would indicate the relative size of his investments. Once an individual was contacted, he could provide information as to his particular investments. The evidence additionally indicated that Miller retained at least 7 some information as to the names of his former clients, the relative size of their accounts, the type of investments they made, and whether they were averse to risk or risk tolerant. The parties agree that Miller should not have access to information generated from VALIC’s software programs. It is the information contained in Miller’s memory that is the real issue of contention between the parties. Miller asserts that this information is not protected because it is either part of his general knowledge or equally available to competitors of VALIC while VALIC claims the information is proprietary. The court stated its intentions at a hearing to clarify the temporary injunction: Let me say with regard to my intentions to competing and contacting persons who he serviced during that previous year, it was my intent - - and I want to make it clear - - that I was not - - that he should not be prohibited from contacting those people. And that was my concern was that then there would be arguments well, you know, by contacting them, then you must have used confidential information. And that’s why I tried to say there are numerous sources from which he could have got that information, you know, not - - not from the [sic] his association with VALIC. But I wasn’t clear on what’s in his head. And the problem with that, and I think one of the cases I looked at pointed that out - - I don’t know how you would ever enforce that. To say that he can’t use the information that’s in his head. But I was trying to make clear that he shouldn’t refer to any proprietary software, or things that have been downloaded from that. But as far as my reading of the Miller Paper case, is that those kind of things that are in your head. You can’t make somebody download those things. And that seems to me just one of the risks you take when you hire people, is that they’re going to obtain some knowledge. * * * But on the other hand, the fact that somebody may be risk averse is something he’s going to know from years of service with them. And you can’t make him stop knowing that. And as a practical matter, all you’ve got to do 8 when you sit down with somebody is say are you risk averse, and they are going to tell you yes I am, or no I’m not. So I - - I understand your concern there, and I was concerned about that, too. And I didn’t want to, by my ruling, place Mr. Miller and VALIC in a position of having to come back and reargue that. So I would like the order to be specific about that. And it wasn’t - - it certainly - - again, unless I hear something different, it was my intent that certainly he would be able to use any information that he has in his brain, just because I don’t think there is any way to prevent it. * * * . . . [L]et’s assume for a minute that Mr. Miller just came off the street and became a Kemper representative. He could easily go to any VALIC or any other representative, go to any other current VALIC client and say: What’s your account balance? And: What’s your risk aversion? And more than likely they would tell him. And so to somehow handicap him because of a prior relationship he had with VALIC seems to me to be patently unfair. And especially in light of the fact I have found the anti-competition clause is ineffective. My feeling about the proprietary information was mainly the computer software VALIC had developed, and it wouldn’t be fair for him to give that to Kemper. But with respect to whether or not a client is - - is risk averse - - I mean, it could easily be said that VALIC wouldn’t have had that client had it not been for Mr. Miller getting them for him in the first place. So to say he wouldn’t have known that except for us, he could easily say you wouldn’t have known it except for me. And to somehow say well, obviously if he contacts one of our customers, it’s because of information we gave to him - - based on the evidence and testimony he knew those people from working - - a lot of them from working at the college . . . . VALIC claims that, based on Rugen, the only type of injunction that will adequately protect it is the type of injunction entered by that court. However, in Rugen, it was stipulated by the parties that customer and pricing information, the identity of consultants and the pricing of those consultants was confidential information. Rugen, 864 S.W.2d at 552. In the case at bar, the parties hotly dispute, based on the particular facts of this case, 9 whether similar information is confidential. Moreover, the Rugen court did not specifically address the matter of information retained in the memory of a former employee. In Miller Paper, employees of Roberts Paper Company, which sold and distributed paper, janitorial and chemical products, left the company to form a competing business and began soliciting Roberts’s clients. We found the trial court was within its discretion to enjoin the use of any of the documents, records, files and hard copy taken by former employees of Roberts Paper Company, which those employees asserted was not confidential information. Those documents included a customer list and a document known as “the book,” which contained customers’ names, addresses, special billing information, delivery sites, information regarding the need for purchase orders, cash on delivery data, and phone numbers. Miller Paper, 901 S.W.2d at 597. The former employees were free to compete, but not with materials developed by or on behalf of Roberts. Id. There was no mention that the former employees had retained any of this information by memory. VALIC argues that Miller is precluded by contract from providing the type of information excepted from the injunction. The contract between VALIC and Miller provides that Miller may not disclose trade secrets during or after termination of his contract. Trade secrets are defined as materials, processes, documentation, and knowledge embodied in 4SIGHT and other licensed software described in attached schedules, as well as customer identities and account information. Miller is also precluded by contract from disclosing 10 other confidential and proprietary information during the term of the contract and for two years thereafter. Other confidential and proprietary information is defined as customer requirements, other VALIC software, and marketing plans whether maintained electronically or otherwise. In the temporary injunction, the court tied the prohibited activity to these contractual provisions. The exceptions under the temporary injunction are information about customers actually received from other sources or available to Miller as a result of his or his new employer’s status as an approved vendor of retirement products to the State of Texas and general knowledge, skill, and experience obtained during his relationship with VALIC or prior to that relationship. The court showed its intent to preclude the use or disclosure of written information, information downloaded from computers, or computer software, but not information retained by Miller or which was generally available to the general public or competitors of VALIC. Thus, Miller is free to compete, but not with materials developed by or on behalf of VALIC. It is argued by VALIC in reliance on Dannenbaum that Texas courts do not distinguish between written and memorized information. See Dannenbaum, 840 S.W.2d at 632. In noting that the Restatement of Agency makes such a distinction, that court explicated that Texas courts either analyze the difficulty in obtaining the information and whether it is readily accessible by industry inquiry or focus on the method used to obtain the information. Id. at 632-33. The evidence in the record that much of Miller’s client base was established through friendships and relationships existing prior to his employment with VALIC and through human resources personnel and directories available to other 11 competitors reasonably supports the trial court’s decision in this regard. To issue the sort of injunction requested by VALIC would bar Miller from selling products even to former clients who initiate contact with him and whose needs and financial status may have changed since he last sold them any products. We find no abuse of discretion on the part of the trial court with respect to the temporary injunction. Thus, VALIC’s issues are overruled, and the judgment of the trial court is affirmed. John T. Boyd Chief Justice Do not publish. 12	{ "pile_set_name": "FreeLaw" }
Supreme Court of the United States Office of the Clerk Washington, DC 20543-0001 Scott S. Harris Clerk of the Court December 15, 2015 (202)479-3011 Clerk Court of Criminal Appeals of Texas P.O. Box 12308 Capitol Station Austin, TX 78711 Re: Osmin Peraza v. Texas No. 15-7367 (Your No. PD-0100-15, PD-0101-15) Dear Clerk: The petition for a writ of certiorari in the above entitled case was filed on December 11, 2015 and placed on the docket December 15, 2015 as No. 15-7367. Sincerely, Scott S. Harris, Clerk by Redmond K. Barnes Case Analyst COURT OFRECEIVED CRIMINALINAPPEALS DEC 28 2015 Abel Acosta, Clerk	{ "pile_set_name": "FreeLaw" }
IN THE TENTH COURT OF APPEALS No. 10-08-00218-CR Ladamion Lamond Majors, Appellant v. The State of Texas, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 2007-1671-C2 MEMORANDUM Opinion A jury found Appellant Ladamion Majors guilty of the enhanced felony offenses of burglary of a habitation with intent to commit kidnapping and aggravated assault. The jury assessed sentences of forty and fifty years’ imprisonment, respectively, and the trial court ordered the sentences to run concurrently. Majors raises one issue on appeal. We will affirm. The evidence shows that the victim, Lakeisha Price, and Majors, her then-boyfriend, went to a friend’s apartment. Arguments ensued, and Majors was asked to leave. Price and Majors left, but Price returned to the apartment and the door was locked. Majors, who had a gun, soon returned and ordered Price to come out or he would come in and get her. Majors broke through the dining room window, grabbed Price, and pulled her outside. As they struggled, the gun discharged, and Price then willingly went with Majors out of fear. He took her to some nearby woods where he put the gun to her head and repeatedly threatened to kill her, but the gun failed to fire. He struck her at least twice with the butt of the gun. Price was able to calm down Majors by telling him she would make up a lie about what happened, so they returned to the apartment, hiding the gun along the way in a nearby backyard. Soon after they arrived at the apartment, so did the police, who arrested Majors. Price appeared upset, shaken, and scared, and she had a cut on her chin and injuries to her chest, feet, and ear. After Majors was taken away, Price showed police where the gun was hidden. Seven months later, Price signed a statement indicating that Majors did not have a gun that evening and that she knew of the gun’s location from someone else, but at trial she recanted that written statement. Majors’s sole issue is that the trial court erred by allowing the prosecutor to “testify” (or state what the evidence at trial would be) and to ask improper commitment questions during voir dire. We review a trial court’s rulings during voir dire for abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The State responds that Majors failed to preserve his complaints for appellate review. To preserve error for appellate review, the complaining party must make a timely, specific objection. The objection must be made at the earliest possible opportunity. The complaining party must obtain an adverse ruling from the trial court. Finally, the point of error on appeal must correspond to the objection made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (citations omitted); see also Tex. R. App. P. 33.1(a). To preserve a complaint for appellate review, the objecting party must continue to object each time the objectionable question or evidence is offered, or either obtain a running objection or request a hearing outside the jury’s presence. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Holmes v. State, 135 S.W.3d 178, 195-96 (Tex. App.—Waco 2004, no pet.) (citing Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999), and Desselles v. State, 934 S.W.2d 874, 876-77 (Tex. App.—Waco 1996, no pet.)). When, in response to an objection, the prosecutor rephrases her question and no objection is made to the rephrased question, there is no adverse ruling to complain about on appeal. See Badall v. State, 216 S.W.3d 865, 872 (Tex. App.—Beaumont 2007, pet. ref’d); Reed v. State, 762 S.W.2d 640, 646 (Tex. App.—Texarkana 1988, pet. ref’d). Majors complains about numerous questions and statements from the prosecutor dealing primarily with a domestic-assault or family-violence victim who did not want to cooperate with police or recanted or requested leniency. All but three of these questions or statements were not objected to, and as to those to which no objection was made, no complaint has been preserved for appellate review. We now address the objections. The prosecutor told the jury panel that this was a family-violence case, that they would be hearing evidence that there was a relationship between the victim and the defendant, and that “about 75 or more percent of the cases that we have that involve family members, even if there are weapons…”. Majors’s trial counsel interrupted with an objection that the prosecutor was giving testimony to the jurors to have them commit. The trial court instructed the prosecutor to ask the question again. The prosecutor moved on and rephrased her question, asking if the jury would be able to convict even if the victim later said that the offense did not happen. No objection was made to that question, and any complaint was thus not preserved. Majors’s trial counsel objected to two questions as commitment questions whether (1) the jury could convict if the assault victim did not want the police called and (2) if the victim later said the assault did not happen and that she loved the accused and did not want him to be in trouble. The second question was also objected to as being close to the facts of the case. The trial court overruled the objections. The prosecutor then repeatedly asked the same or similar questions to the jury panel without objection. Because these subsequent questions were not objected to and no running objection was obtained, the complaints are not preserved for appellate review. We overrule Majors’s sole issue and affirm the trial court’s judgment. REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed July 21, 2010 Do not publish [CRPM]	{ "pile_set_name": "FreeLaw" }
544 U.S. 971 RISBYv.UNITED STATES. No. 04-9060. Supreme Court of United States. April 18, 2005. 1 C. A. 5th Cir. Reported below: 115 Fed. Appx. 694. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, 543 U.S. 220 (2005).	{ "pile_set_name": "FreeLaw" }
360 So.2d 728 (1978) Clara DAVIDSON v. STATE. 6 Div. 320. Court of Criminal Appeals of Alabama. May 16, 1978. Rehearing Denied June 20, 1978. 729 J. Wilson Dinsmore of Dinsmore & Waites, Birmingham, for appellant. William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State. BOWEN, Judge. In a two count indictment the appellant was charged with larceny and with buying and receiving stolen property. A jury found her guilty of buying and receiving stolen property. The trial judge sentenced the appellant to five years' imprisonment. From this conviction appeal is taken. Two questions are presented for our review: (1) Whether reversible error is committed where the trial judge fails to instruct the jury on the elements of the offense and (2) whether a conviction may be had for buying and receiving stolen property where the accused stole the property from its rightful owner. The state's evidence reveals that Mrs. Marie Harwood Crawford answered an ad in a newspaper offering a house for rent. On the 6th of January, 1975, Mrs. Crawford entered into a contractual arrangement for the house. She gave the appellant, who identified herself as Sue Hill, two hundred dollars in cash and received a receipt evidencing the transaction, signed by "Sue Hill". Mrs. Crawford positively identified the appellant as the woman who signed the receipt. On the day appointed for Mrs. Crawford to take possession of the property she went to its location at 408 13th Terrace Northwest in Centerpoint, Alabama (Jefferson County), only to find seven other couples waiting to move into the same house and one couple who had already moved in. The defense was that the appellant never entered into any rental agreement with Mrs. Crawford and simply did not commit any crime. Mrs. Geneva Bellamy, a notary public, testified that one "Sue Hill" signed a mortgage on the subject property in her presence. However Mrs. Bellamy stated that the "Sue Hill" who signed the mortgage was not the appellant. Mrs. Mary Beacom, a handwriting expert, testified that the signature on Mrs. Crawford's receipt and an exemplar of the appellant's handwriting were not written by the same person. 730 I In his oral charge to the jury the trial judge stated the offenses with which the appellant was charged but did not detail their elements. The appellant contends that even without any objection this failure constitutes reversible error. The trial court has a mandatory duty of instructing the jury orally as to the different and distinguishing elements of the offense charged. "In Mitchell v. State, 210 Ala. 457, 98 So. 285, the court said: `It was the duty of the courtmandatory duty of the court to instruct the jury orally as to the different and distinguishing elements of (the offense). Without such instructions from the court, the jury could not intelligently comply with their statutory duty. This right of the defendant to have the jury so charged by the court was valuable. The duty resting on the court to so charge the jury is imperative. The error committed by the court in refusing to do so is manifest." Gilbert v. State, 32 Ala.App. 200, 201, 23 So.2d 22, 23 (1945). Yet, even where the judge fails to charge the jury on the elements of the offense, this error may not be raised for the first time on appeal. To constitute ground for reversal, objection or exception to the oral charge is necessary. Mitchell v. State, 210 Ala. 457, 458, 98 So. 285 (1923). "The partial or total failure or omission of a trial court to instruct a jury in its oral charge with reference to principles or rules of law that may be, or even are, involved in the trial, cannot be made the basis for a reviewable question on appeal. Williams v. State, 147 Ala. 10, 25, 41 So. 992; Jones v. State, 174 Ala. 85, 93, 57 So. 36. The party's remedy in such cases of mere failure or omission is to request special written instructions according to the practice established by the statutes." McPherson v. State, 198 Ala. 5, 7, 73 So. 387, 387 (1916). Though the appellant raised objection to the oral charge of the trial court in his motion for new trial, this is not sufficient to invoke review by this court where no exception or objection was made at trial before the jury retired. Snider v. State, 39 Ala. App. 234, 97 So.2d 163 (1957). II The appellant alleges that the verdict of the jury was contrary to the law and evidence. It is argued that the appellant could not be legally convicted of buying, receiving and concealing stolen property because the state's own evidence shows that the appellant received the goods charged to be stolen, the two hundred dollars, from their rightful owner. The appellant refers to the rule in other jurisdictions that an accused may be convicted of criminally receiving stolen property, even though he was a guilty participant in the stealing of it, where he took no part in the actual caption and asportation, but participated only before or after the fact, or in a manner not involving his presence at the taking. Liakas v. State, 199 Tenn. 549, 288 S.W.2d 430, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956); State v. Rutledge, 232 S.C. 223, 101 S.E.2d 289 (1957). This contention of the appellant has merit though we need not venture outside our own jurisdiction for supporting authority. "A prior theft of property by some third person, is a prerequisite to receiving stolen goods, knowing them to be stolen. (citations omitted) "It is essential to the crime here charged that the goods coming into the hands of the accused be stolen at the time the accused received them. Farzley v. State, 231 Ala. 60, 163 So. 394." Freeman v. State, 39 Ala.App. 451, 452,103 So.2d 759, 760, cert. denied, 267 Ala. 626, 103 So.2d 761 (1958). For this reason, evidence tending to prove that the accused came into possession of the property described in the indictment solely through the burglarization of a house is insufficient to authorize a conviction of receiving stolen goods. Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940). In the offense of receiving stolen goods, the accused is guilty of receiving goods *731 which had been taken and carried away by another. The offense of larceny is perfected before that of receiving stolen goods can be perpetrated. Foster v. State, 39 Ala. 229, 234 (1864). Thus Alabama law supports the general principle on this subject as stated in 136 A.L.R. 1087 at 1088, Annotation: May participant in larceny or theft be convicted of offenses of receiving or concealing the stolen property. "It is an elementary principle of law that the principal in a theft, or the person who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen." The evidence in this case shows beyond any doubt that if the appellant did obtain the charged sum of money from the owner, she actually received it directly from Mrs. Crawford (the owner). The appellant, if guilty, was guilty of the actual taking and carrying away. Since a thief may not receive stolen property from himself, the appellant cannot be convicted of receiving stolen property where the evidence shows that she actually stole the property. We note that in a related trial the trial judge charged the jury that the count charging buying, receiving, and concealing stolen property did not apply to a similar factual situation. Davidson v. State, Ala. Cr.App., 351 So.2d 683 (1977). Because the evidence does not support the finding of the jury and the judgment of the trial court as a matter of law, the judgment of conviction must be reversed and the cause remanded for a new trial. REVERSED AND REMANDED. All Judges concur.	{ "pile_set_name": "FreeLaw" }
USCA1 Opinion October 19, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1559 PETER N. GEORGACARAKOS, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. ____________________ No. 94-1750 PETER N. GEORGACARAKOS, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant, Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Morton A. Brody, U.S. District Judge] ___________________ ____________________ Before Cyr, Boudin and Stahl, Circuit Judges. ______________ ____________________ Peter N. Georgacarakos on brief pro se. ______________________ Jay P. McCloskey, United States Attorney, and Michael M. DuBose, _________________ _________________ Assistant United States Attorney, on brief for appellee. ____________________ ____________________ Per Curiam. After carefully reviewing the record __________ and the briefs of the parties, we affirm the judgment of the district court. We do so essentially for the reasons set forth in the Report and Recommendation of the magistrate judge which was adopted by the district court in its order dated May 12, 1994. Specifically, we agree that under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), __________ __________ counsel's choice to forego an entrapment defense plainly was an objectively reasonable choice, given appellant's criminal history and the evidence. As for the jury instructions concerning venue, we add that even if they had been reviewed for abuse of discretion -- the standard of review applicable to properly preserved objections -- appellant still would not have prevailed. Under this standard, "[t]he trial court should be reversed only if the instruction was capable of confusing and thereby misleading the jury." United States v. _____________ Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984), ________________________ cert. denied, 470 U.S. 1029 (1985). ____________ The venue instruction, viewed in light of all evidence, was not misleading. As we held in appellant's direct appeal, even had the jury accepted appellant's version of the events, the evidence of venue in Maine was "so clear" that "no reasonable juror could have found otherwise." United States v. Georgacarakos, 988 F.2d 1289, 1297 (1st Cir. _____________ _____________ 1993). Further, when the instruction is considered in the context of the charge as a whole, it is plain that there was no abuse of discretion. See United States v. Doane, 975 F.2d ___ _____________ _____ 8, 11 (1st Cir. 1992) (quoting Cupp v. Naughten, 414 U.S. ____ ________ 141, 146-47 (1973)). Given our findings concerning the adequacy of the instructions on constructive and joint possession, counsel's failure to timely object to the venue instruction did not deprive appellant of "a trial whose result is reliable." See Strickland, 466 U.S. at 687. ___ __________ Therefore, he was not prejudiced. Because we affirm the judgment of the district ______ court, appellant's appeal of the denial of bail is moot. -3-	{ "pile_set_name": "FreeLaw" }
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-202 _____________________________ ESAD KURTANOVIC, Husband, Appellant, v. ZINETA KURTANOVIC, Wife, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Steven M. Fahlgren, Judge. May 25, 2018 ROBERTS, J. In this appeal from a final judgment of dissolution of marriage, the former husband raises multiple issues on appeal: (I) the trial court erred when it calculated the equitable distribution award; (II) the trial court erred when it required the former husband to make a lump-sum payment; (III) the trial court erred by imputing income to the former husband when it calculated the alimony payments; (IV) the trial court erred by awarding the former wife retroactive alimony; (V) the trial court erred when it required the former husband to secure the former wife’s alimony award with life insurance; (VI) the trial court erred by ordering the former husband’s alimony payments to continue past his death; and (VII) the trial court erred in granting the former wife attorney’s fees and costs. We find the trial court’s equitable distribution scheme contained a mathematical error and remand for correction of the error and otherwise affirm the equitable distribution scheme. We find the trial court erred when it required the former husband to make a lump-sum payment to the former wife as there is no indication in the record that the former husband had the ability to pay such an award. We find no error in the trial court’s imputation of income to the former husband and award of alimony and retroactive alimony to the former wife and affirm. We find the trial court erred when it required the former husband to obtain life insurance to secure the former wife’s alimony award and when it required the alimony award to extend beyond the former husband’s death. Because the parties appear to be on equal financial footing after equitable distribution and the award of alimony, we reverse the trial court’s award of attorney’s fees and costs to the former wife. Equitable Distribution An appellate court reviews a trial court’s equitable distribution scheme for abuse of discretion. Stough v. Stough, 18 So. 3d 601, 604 (Fla. 1st DCA 2009). The trial court provided a thorough equitable distribution scheme that contains a mathematical error in the initial equalization amount. After distributing the parties’ assets and debts, the trial court found that the former husband received $3,739.61 more than the former wife. The record clearly shows that there was only a difference of $1,739.61. Based on the correct difference, the former wife was only entitled to an initial equalizing payment of $869.80 rather than $1,869.80. Therefore, we reverse on this point and remand for the trial court to correct the mathematical error and to reduce the former wife’s total equitable distribution equalizing payment by $1,000.00. We otherwise affirm the equitable distribution award. See Ard v. Ard, 765 So. 2d 106, 107 (Fla. 1st DCA 2000) (reversing the equitable distribution scheme solely to correct a mathematical error and otherwise affirming the equitable distribution scheme). Lump-Sum Payment “[A] lump sum equalizing payment to accomplish equitable distribution ‘is properly awarded only when the 2 evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status.’ ” Abramovic v. Abramovic, 188 So. 3d 61, 64 (Fla. 4th DCA 2016) (quoting Fortune v. Fortune, 61 So. 3d 441, 446 (Fla. 2d DCA 2011) (emphasis added) (quoting Bishop v. Bishop, 47 So. 3d 326, 331 (Fla. 2d DCA 2010)). See also Neal v. Meek, 591 So. 2d 1044, 1046 (Fla. 1st DCA 1991) (any required lump-sum payment must be supported by findings of fact demonstrating the payor spouse’s ability to make the payment within the contemplated timeframe). The trial court made no findings with regards to the former husband’s ability to pay a lump-sum equalizing payment. Because there is no indication in the record that the former husband had the ability to make a lump-sum payment within the time frame set by the trial court, we reverse. Alimony An appellate court reviews an award of alimony for abuse of discretion. Abbott v. Abbott, 187 So. 3d 326, 327 (Fla. 1st DCA 2016). The appellate court reviews the application of the law to the facts of the case de novo and will not reverse an alimony award if it is supported by competent, substantial evidence. Id. Imputation of Income When calculating an award of alimony using imputed income, the trial court must find that the party it is imputing income to is (1) underemployed or unemployed and (2) the underemployment or unemployment is not based on a physical or mental incapacity or based on a circumstance that the other party cannot control. McDuffie v. McDuffie, 155 So. 3d 1234, 1236 (Fla. 1st DCA 2015). If the trial court finds that a party is unemployed or underemployed, the trial court must impute income. Id. During the marriage, the former husband started his own trucking business, which provided the majority of the financial support for the parties. During the time the former husband owned his own business, the parties were able to enjoy a 3 comfortable lifestyle. Shortly after the parties separated, the former husband claimed that his last tractor broke down and the repairs were too expensive, causing him to lose his business. He also testified that he could not work in the trucking industry because he had vision problems. The former wife testified that the former husband told her that he was no longer working in the trucking industry in order to avoid paying her alimony. The trial court found the former husband’s testimony was not credible. A trial court can impute income where a spouse has failed to use his or her best efforts to earn income. A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor's real ability to pay. Smith v. Smith, 737 So. 2d 641, 644 (Fla. 1st DCA 1999) (citations omitted). In determining imputation of income for alimony awards, the courts have applied the same factors as those applied to imputing income for child support. Gray v. Gray, 103 So. 3d 962, 967 (Fla. 1st DCA 2012) (citing Smith v. Smith, 737 So. 2d 641 (Fla. 1st DCA 1999)). Section 61.30(2)(b), Florida Statutes (2014), states in relevant part: Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. The trial court found that income should be imputed to the former husband, and there is competent, substantial evidence to 4 support the amount imputed to the former husband based on his 2014 gross business receipts, his business credit card statements, and his business taxes. The record shows that the former husband’s business began to slow down soon after the former wife filed this cause of action on August 1, 2014. Thus, the trial court used the most recent credible income available as required by the statute, and we find that the trial court did not err. The former husband also challenges the amount of rental property income the trial court attributed to him. The trial court appears to have adopted the former wife’s evidence with regards to the rental property income. The former wife’s rental property income deducted amounts for homeowner’s association fees, insurance, and mortgages. The former husband had the duty to put forth evidence to establish any additional deductions. See Hodge v. Hodge, 129 So. 3d 441, 443 (Fla. 5th DCA 2013) (the person claiming that deductions should be made has the duty to establish the deductions for maintenance of the property from the rental property income). Because the former husband failed to put forth competent, substantial evidence to support his claim for additional deductions, we find no error in the trial court’s calculations. We find that the trial court’s ruling on the award of alimony is supported by competent, substantial evidence and affirm. Retroactive Alimony An award of retroactive alimony must be based on the receiving spouse’s need during the retroactive period and the payor spouse’s ability to pay during the retroactive period. Abbott, 187 So. 3d at 328. Because there is competent, substantial evidence to support the trial court’s award of retroactive alimony, we affirm this issue. Life Insurance to Secure Award of Alimony The former husband argues that the trial court erred when it required him to obtain life insurance because the former wife did not request her alimony to be secured by life insurance in her pleadings or during the proceedings. We find that it was error for 5 the trial court to require this additional financial burden as the former husband had no notice and was not given the opportunity to present a defense on this issue. See Stalnaker v. Stalnaker, 892 So. 2d 561, 563 (Fla. 1st DCA 2005) (trial court did not err in ordering the payor spouse to secure the alimony award by obtaining life insurance since the issue was raised during trial without objection); see also Eisele v. Eisele, 91 So. 3d 873, 874 (Fla. 2d DCA 2012) (trial court does not have authority to require a party to obtain life insurance to secure child support payments unless such relief has been requested); Lowe v. Lowe, 789 So. 2d 1202, 1202 (Fla. 4th DCA 2001) (trial court erred in ordering the payor spouse to obtain life insurance to secure his alimony payments when the payee spouse failed to request the relief in her motion for contempt). Accordingly, we reverse. Alimony Beyond Death An alimony award generally cannot survive the death of the payor spouse. See Zimmerman v. Zimmerman, 766 So. 2d 1196, 1196 (Fla. 1st DCA 2000) (a spouse’s obligation to pay permanent alimony terminates upon his death); O’Malley v. Pan Am. Bank of Orlando, Nat’l Ass’n, 384 So. 2d 1258, 1260 (Fla. 1980) (“[T]he well established rule is that an obligation to pay alimony ceases upon the death of the obligor, unless that person expressly agrees that the estate shall be bound to continue to pay alimony after his death.”). Finding no agreement by the former husband to pay alimony after his death, we reverse the trial court’s ruling that the former husband’s estate is responsible for the former wife’s alimony payments upon his death. Attorney’s Fees and Costs The standard of review for an award of attorney’s fees is abuse of discretion. Watson v. Watson, 124 So. 3d 340, 343 (Fla. 1st DCA 2013). The primary consideration for an award of attorney’s fees and costs is the financial resources available to each party. See § 61.16(1), Fla. Stat. (2014). “The purpose of . . . section [61.16(1)] is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Broemer v. Broemer, 109 So. 3d 284, 290 (Fla. 1st DCA 2013) (quoting Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997)). An award of attorney’s fees and costs should not be 6 granted when the parties are equally able to pay attorney’s fees and costs after the court has equally distributed the property and equalized the parties’ incomes. Hutchinson v. Hutchinson, 185 So. 3d 528, 529 (Fla. 1st DCA 2015). Because the parties’ financial resources and income appear to be equal after equitable distribution and the award of alimony, we reverse the trial court’s award of attorney’s fees and costs to the former wife. On remand, the trial court shall revisit the award of attorney’s fees and costs, taking into account the equalization of the parties’ financial resources and incomes. AFFIRMED in part; REVERSED in part, and REMANDED with instructions. WETHERELL and ROWE, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant. No appearance for Appellee. 7	{ "pile_set_name": "FreeLaw" }

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