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607 P.2d 297 (1980)
STATE of Utah, Plaintiff and Respondent,
v.
Gilbert HUNT, Defendant and Appellant.
No. 16437.
Supreme Court of Utah.
February 14, 1980.
*298 Robert J. Schumacher of Utah County Legal Defenders Assoc., Provo, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
WILKINS, Justice:
Defendant, at the age of 16 years and 11 months, was certified by the Juvenile Court for Utah County to be tried as an adult on a charge of aggravated robbery. Thereafter, defendant was tried before the District Court for Utah County, sitting with a jury, which returned a verdict of guilty for violating Section 76-6-302, Utah Code Ann. 1953, as amended.[1] Defendant appeals.
On November 12, 1978, a man entered a gasoline service station in Springville, Utah, wearing a nylon stocking loosely over his head, and pointed a gun, with silencer attached, at the owner of the station. He demanded and took all the money in the till. The owner recognized the man as the defendant, whom she had known for some time. At the time of these events defendant was a fugitive, having escaped from the Utah Youth Development Center.
Approximately one month later, defendant was arrested in Colorado and held there until he was transported back to this State by Utah County Police Officers. During the six and one-half hour drive to Utah, an Officer Sharp advised defendant of his constitutional rights by reading a "Miranda"[2] card, and asked defendant if he understood these rights, and if he wanted to answer questions. Defendant responded affirmatively, and thereafter made statements to the officers which connected him with the crime in Springville.
At the trial, Officer Sharp testified, relating the statements made by defendant. Defendant made no objection to this testimony on direct examination. Instead, on cross examination, defendant established that his parents or guardian had not been contacted and no one other than defendant had waived his "Miranda" rights prior to the time the statements were made. Defense counsel then moved to strike the officer's testimony on that basis, which motion was denied.
Defendant now appeals, citing as error, the admission of this testimony, contending that a juvenile's confessions and admissions against his interest are inherently involuntary when made without the advice of a parent, adult friend or an attorney, regardless of the Miranda warnings.[3] Secondly, defendant contends that the interrogation by the police during the six and one-half hour journey from Colorado constitutes a violation of Section 78-3a-29, noted infra, and renders any statements made by the *299 juvenile during that time inadmissible. Finally, defendant argues that until he was certified to be tried as an adult, defendant was under the jurisdiction of the Juvenile Court, and statements made by him during that time are inadmissible as a matter of fundamental fairness, and should have been excluded under Section 78-3a-44(3).
The facts of this case are similar to those in State v. Mares, 113 Utah 225, 192 P.2d 861 (1948), where this Court considered the admissibility of a confession made by a minor. In that case, Mares, at the age of 18 was arrested and charged with theft of an automobile, and later, murder. Mares admitted the theft to the Summit County Attorney who thereupon advised Mares that he should not make any admissions to him but should wait until Mares' father, mother, or a lawyer was present. Mares said he did not want a lawyer and did not want his father or mother notified. The next day, Mares was interrogated by two F.B.I. agents, who told Mares that he did not have to make any statements to them and that any statement he made would be used against him in a court of law. Mares consented to answer their questions, and during the four and one-half hour interrogation, confessed to the murder.
The evidence did not show any abuse, threats, coercion, or promises of reward or immunity on the part of the interrogating officers, but Mares contended that his confession was involuntary because of his youth, and coercion existed because of the length of the interrogation, the number of officers who were present, and the fact that Mares made the confession without the benefit of counsel. In light of Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) in which the U.S. Supreme Court stated that a child (there a fifteen year old) "[is] an easy victim of the law [and] cannot be judged by the more exacting standards of maturity," this Court considered Mares' contention and held that considering the facts and circumstances of the case, Mares was not made a victim of fear or panic or an object of police abuses, was not offered immunity, reward or consideration, was not denied his freedom of choice, and the confession was therefore voluntary.
The same circumstances are present in this case, and Mares would seem to be controlling here on the issue of whether the confession of a juvenile is inherently involuntary and inadmissible.
But defendant asserts that more recent decisions of the U.S. Supreme Court sustain his contention that juvenile confessions are inherently involuntary. We therefore must determine whether the reasoning of Mares withstands scrutiny in the light of recent developments in this area.
The U.S. Supreme Court has considered this issue in a number of cases since 1948, and has said:
If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair. [In re Gault, 387 U.S. 1 at page 55, 87 S.Ct. 1428, at page 1458, 18 L.Ed.2d 527 (1967).]
Gault was not advised of his constitutional rights as was defendant in this case, but a simple application of Miranda does not finally resolve the question, as the U.S. Supreme Court has also held youthful confessions involuntary in spite of the fact that the child was advised of his rights to the same extent as would be considered sufficient were he an adult. In Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) where the defendant was only 14 years of age, the Court said:
The prosecution says that the youth and immaturity of the petitioner and the five-day detention are irrelevant, because the basic ingredients of the confession came tumbling out as soon as he was arrested. But if we took that position, it would, with all deference, be in callous disregard of this boy's constitutional rights. He cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his *300 admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights from someone concerned with securing him those rights and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year old boy would not be able to know, let alone assert, such constitutional rights as he had. [370 U.S. at 54, 82 S.Ct. at 1212-1213]
Defendant contends that a proper interpretation of Gallegos requires the exclusion by the Court of all statements made by a juvenile if made without the advice of a parent, adult friend or an attorney. We are not persuaded, however, that a child is necessarily incompetent to waive his rights because of his infancy[4]; nor do we agree that such a choice should lie with a child's parent, adult friend or attorney. The question of whether a juvenile has intelligently, knowingly and voluntarily waived his constitutional rights must be determined from all of the circumstances of a particular case, as the Court held, in Gallegos:
There is no guide to the decision of cases such as this, except the totality of circumstances that bear on the two factors we have mentioned. The youth of the petitioner, the long detention, the failure to send for his parents, the failure immediately to bring him before the judge of the Juvenile Court, the failure to see to it that he had the advice of a lawyer or a friend all these combine to make us conclude that the formal confession on which this conviction may have rested (see Payne v. Arkansas, 356 U.S. 560, 568 [78 S.Ct. 844, 850, 2 L.Ed.2d 975]) was obtained in violation of due process. [370 U.S. at 55, 82 S.Ct. at 1213.]
Defendant argues that several jurisdictions have adopted the rule that a juvenile's waiver of his right of silence is invalid per se, unless made with the advice of his parent, adult friend or attorney.[5] But, we believe, the better reasoned cases are those from the great majority of jurisdictions, which have adopted the "totality of the circumstances" rule, as we do now, in determining whether the juvenile's confession is in fact voluntary. The rule is best expressed in People v. Lara, 67 Cal.2d 365, 62 Cal. Rptr. 586, 432 P.2d 202 (1967):
This, then, is the general rule: a minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissability of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement. [62 Cal. Rptr. at 599, 432 P.2d at 215.]
Those states which have adopted the totality of the circumstances rule[6] consider age, and the presence of parent, friend or attorney as only two of several factors to be considered in determining the capacity of a particular juvenile to waive his rights. Also to be considered are the child's intelligence or educational level, his state of mind during the interrogation; viz., whether he was confused or fearful, and his prior experience *301 with the police and the criminal process. These factors must be taken into consideration as well as the questions of duress, threats, promises or other coercion traditionally considered in reviewing the confession of an adult defendant.
In this case, there is no evidence of physical abuse, and no threats or promises made on the part of the police. Defendant was advised of his constitutional rights. He was nearly 17 years old, and the record shows that he was sophisticated and was not confused when he spoke to the police. The Juvenile Court, on the basis of his prior record in that court, determined he was sufficiently mature to be tried as an adult. The Juvenile Court's determination in that proceeding has not been challenged here. This record shows that defendant was not unfamiliar with police methods nor with criminal process.
Under all of these circumstances, we hold that the Court did not err in determining that defendant's statements to the police were made voluntarily, nor in refusing to strike the officer's testimony on the ground that no parent, adult friend or attorney was present during this interrogation.
Defendant's second point on appeal is that the police were in violation of Section 78-3a-29, and that such a violation renders his statements inadmissible as evidence. That Section provides:
78-3a-29. A child may be taken into custody by a peace officer without order of the court (a) when in the presence of the officer the child has violated a state law, federal law or local law or municipal ordinance; (b) when there are reasonable grounds to believe that he has committed an act which if committed by an adult would be a felony; (c) when he is seriously endangered in his surroundings, or when he seriously endangers others, and immediate removal appears to be necessary for his protection or the protection of others; (d) when there are reasonable grounds to believe that he has run away or escaped from his parents, guardian, or custodian.
A private citizen or a probation officer may take a child into custody if the circumstances are such that he could make a citizen's arrest if an adult were involved. A probation officer may also take a child into custody under the circumstances set out in the preceding paragraph, or if the child has violated the conditions of probation, provided that the child is under the continuing jurisdiction of the juvenile court or in emergency situations in which a peace officer is not immediately available.
When an officer or other person take a child into custody, he shall without unnecessary delay notify the parents, guardian, or custodian. The child shall then be released to the care of his parent or other responsible adult unless his immediate welfare or the protection of the community requires that he be detained. Before the child is released, the parent or other person to whom the child is released may be required to sign a written promise, on forms supplied by the court, to bring the child to the court at a time set or to be set by the court.
A child shall not be detained by the police any longer than is reasonably necessary to obtain his name, age, residence and other necessary information, and to contact his parents, guardian or custodian. If he is not thereupon released as provided in the preceding paragraph, he must be taken to the court or to the place of detention or shelter designated by the court without unnecessary delay.
The officer or other person who takes a child to a detention or shelter facility must notify the court at the earliest opportunity that the child has been taken into custody and where he was taken; he shall also promptly file with the court a brief written report stating the facts which appear to bring the child within jurisdiction of the juvenile court and giving the reason why the child was not released.
Defendant relies on the fourth paragraph of this statute. Defendant acknowledges that this statute is not meant to prevent the police from undertaking routine investigatory *302 questioning of juveniles who are arrested. But, he argues, the interrogation during the six and one-half hour drive from Colorado was unreasonably lengthy. And he urges this Court to interpret § 78-3a-29 to allow police interrogation only after a juvenile has been presented to the juvenile authorities.
It is clear, in reviewing the entire statute, rather than the fourth paragraph in isolation, that it does not basically govern police interrogation of juveniles. The dominant purpose of the statute is to provide guidelines for arrest and either release or placement of a juvenile in detention facilities separate from adult facilities. The statute provides for arrest and detention of juveniles on four separate and dissimilar grounds; i.e., when a child has committed (a) a misdemeanor, (b) a felony, (c) is abused, and is in need of protection, or (d) has committed a status offense. Police interrogation must necessarily differ considerably in each of these four cases, and the four situations cannot be treated equally for that purpose.
Police interrogation must, of course, always be reasonable, and police must conduct such interviews in a responsible manner. Unnecessarily lengthy interrogation is suspect. But Officer Sharp's testimony shows that this interrogation was not abusive, intensive, nor indeed, very lengthy.[7] Defendant did not offer any evidence to the contrary. The six and one-half hour drive from Colorado is normal driving time, and was not in the circumstances of this case unreasonable.
In sum, our comments here are not to be construed, of course, as reducing the vitality of the fourth paragraph of § 78-3a-29. Rather, these comments constitute interpretation of this paragraph in context with other language of the statute and the key is that detention by police of a juvenile for interrogation must not be more extended than is "reasonably necessary".
Finally, defendant argues that the use of this evidence in the District Court is prohibited by the provisions of § 78-3a-44(3) and by fundamental fairness.
Section 78-3a-44(3) provides:
Neither the record in the juvenile court nor any evidence in the juvenile court shall be admissible as evidence against the child in any proceedings in any other court, with the exception of cases involving traffic violations.
As defendant was not charged nor tried in the Juvenile Court for this crime, the evidence which defendant wishes to exclude was not presented there as evidence, nor was the Juvenile Court's record presented in the District Court. Nevertheless, defendant argues that in Harling v. U.S., 111 U.S.App.D.C. 174, 295 F.2d 161 (D.C. Cir.1961), the United States Court of Appeals for the District of Columbia interpreted a similar statute to exclude from use in an adult criminal court all damaging statements made by a juvenile prior to the time the Juvenile Court had waived its exclusive and original jurisdiction. The Circuit Court also stated therein that "fundamental fairness" required such exclusion. This determination, however, was made on the basis *303 that under that Court's applicable law, a juvenile was under the jurisdiction of the Juvenile Court from the time he committed an offense, and was exempt from the criminal law unless and until the Juvenile Court waived its jurisdiction. As he was exempt from the criminal law, the constitutional safeguards afforded adult criminal defendants did not apply.
In Harling, the Court observed that the constitutional safeguards afforded defendants in criminal proceedings would be wholly inappropriate for the flexible and informal procedures of the Juvenile Court which are essential to its parens patriae function.[8] We believe this case lacks force as it was decided prior to Gault, supra, in which the U.S. Supreme Court ruled that juveniles are entitled to certain constitutional rights even within the environs of the Juvenile Court in spite of its status of parens patriae, and its focus on the best interest of the child.
The Harling case has not been generally followed,[9] and we do not believe our statute is as amenable to such a rule as that which the D.C. Circuit Court interpreted. The evidence sought to be excluded here was never presented to the Juvenile Court, and is not part of its record. Rather it is information obtained in the investigatory procedures of the police, who do not have a parens patriae relationship with a child, and are not viewed by him as such.
The Oregon Supreme Court considered this question, and rejected the Harling rule on the basis that the police do not have a parens relationship with a child in State v. Gullings, 244 Or. 173, 416 P.2d 311 (1966). There, the Court acknowledged that the integrity of the Juvenile Court might be threatened if information secured from the juvenile without regard for constitutional safeguards while he was under the jurisdiction of that Court were later used against him in an adult criminal court. But there, as here, the evidence was obtained by the police during its investigatory process, and there, as here, the defendant was advised of his constitutional rights. There, as here, defendant had not been referred to the Juvenile Court prior to making his statements, and those statements were not, therefore, part of the juvenile court record, nor part of the evidence in the Juvenile Court. The Oregon Court said:
So long as information is available which meets constitutional criminal due process standards and which was not secured through the close relationship between court worker and child, the safety and security of the law-abiding public requires its use in adult criminal proceedings. [416 P.2d at 314]
We believe the Oregon rule in Gullings to be the better reasoned rule. In view of the age of the defendant, and other circumstances of this case, we hold that his statements made to the police were not made involuntarily, and the District Court did not err in admitting this evidence.
Affirmed.
CROCKETT, C.J., and MAUGHAN, HALL and STEWART, JJ., concur.
NOTES
[1] All references are to Utah Code Ann. 1953, as amended, unless otherwise specifically indicated.
[2] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] Defendant does not challenge the officer's testimony that he was advised of his constitutional rights in accordance with Miranda v. Arizona, supra, note 2.
[4] See Mr. Justice Frankfurter's concurring opinion in Haley v. Ohio, supra.
[5] See for example, J.T.P. v. State, Okl.Cr., 544 P.2d 1270 (1975); Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972); Commonwealth v. Markle, 475 Pa. 266, 380 A.2d 346 (1977); E.A.W. v. State, 547 S.W.2d 63 (Tex.Civ.App. 1977).
[6] See State v. Toney, 113 Ariz. 404, 555 P.2d 650 (1976); People v. Magee, 217 Cal. App.2d 443, 31 Cal. Rptr. 658 (1963); State v. Francois, Fla., 197 So.2d 492 (1967); People v. Connolly, 33 Ill.2d 128, 210 N.E.2d 523 (1965); In Interest of Shutters, 56 Ill. App.3d 184, 13 Ill.Dec. 198, 370 N.E.2d 1225 (1977); Bean v. State, 234 Md. 432, 199 A.2d 773 (1964); People v. De Flumer, 21 App.Div.2d 959, 251 N.Y.S.2d 814, affd. 16 N.Y.2d 20, 261 N.Y.S.2d 42, 209 N.E.2d 93 (1965).
[7] The officer's entire testimony concerning defendant's statements, again after the Miranda warning, was:
Well, it was a long trip, it was about six hours long, six and one-half hours to drive back from Grand Junction. And the first thing I asked him, I said: "Gilbert, why did you get your hair cut? I noticed your hair's cut." And he says, "Well, I didn't want anybody to recognize me." And I said, "What about the nylon sock you had over your head at the armed robbery at Springville?" I said, "Couldn't you get it down over your head?" He said, "No, I couldn't get it all of the way over my head." Also, I asked him, I said: "Why did you go back to the 76 station about a week later after the robbery?" He said: "I needed to use the phone there, had to go back and use the phone. I wanted to see if anybody noticed me." And I said: "I know you ran that night when the police showed up, and where had you run?" He said: "I ran up Hobble Creek." I said: "You mean you stayed right in the creek?" He said: "Yes. I was right in the water." He said: "I about froze that night." He told me he went right directly toward Hobble Creek Canyon, and that was about, oh, that was about all he said on the way back.
[8] See Harrison v. U.S., 123 U.S.App.D.C. 230, 359 F.2d 214 (D.C. Cir.1965), where it appears there was a conflict in the same Court as to the applicability of the Harling rule.
[9] See, however, State v. Maloney, 102 Ariz. 495, 433 P.2d 625 (1967), which applied the Harling rule even in the light of Gault.
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140 U.S. 424 (1891)
WAN SHING
v.
UNITED STATES.
No. 1414.
Supreme Court of United States.
Submitted April 10, 1891.
Decided May 11, 1891.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.
*425 Mr. J.J. Scrivener for appellant.
Mr. Assistant Attorney General Parker for appellee.
MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.
The refusal of the officers of the customs at the port of San Francisco to allow the petitioner to land, and his consequent detention by the master of the steamship in which he was brought to this country, were not founded upon the act of May 6, 1882, and the act amendatory thereof, as erroneously *426 alleged in his petition. They were based upon the provisions of the act of October 1, 1888, which declared that from and after its passage it should be unlawful for any Chinese laborer, who at any time before had been or was then, or might thereafter be, a resident within the United States and who had departed or might depart therefrom, and should not have returned before its passage, to return to or remain in the United States. And it further declared that no certificates of identity, under which by the act of May 6, 1882, Chinese laborers departing from the country were allowed to return, should thereafter be issued, and it annulled every certificate of the kind which had been previously issued, and provided that no Chinese laborer should be permitted to enter the United States by virtue thereof.
The petitioner, if a laborer, could not therefore have been permitted to land except in violation of this statute, without reference to the question whether or not he was in the country on November 17, 1880, and had departed therefrom before the passage of the act of June 6, 1882.
His right to land, therefore, rested upon his establishing the fact that he was not a laborer, within the provisions of the act of October 1, 1888, and that could only have been shown by a certificate of identity issued under the authority of the Chinese government. The sixth section of the act of May 6, 1882, 22 Stat. 58, 60, c. 126, § 6, provides that, for the faithful execution of the treaty of November 17, 1880, every Chinese person, other than a laborer, who may be entitled by it and by that act to come within the United States, and who is about to come, "shall be identified as so entitled by the Chinese government in each case, such identity to be evidenced by a certificate issued under the authority of said government, which certificate shall be in the English language, or, (if not in the English language,) accompanied by a translation into English, stating such right to come, and which certificate shall state the name, title or official rank, if any, the age, height and all physical peculiarities, former and present occupation or profession, and place of residence in China of the person to whom the certificate is issued, and that such person is entitled *427 conformably to the treaty in this act mentioned to come within the United States. Such certificate shall be prima facie evidence of the fact set forth therein, and shall be produced to the collector of customs, or his deputy, of the port in the district in the United States at which the person named therein shall arrive." From this provision diplomatic and other officers of the Chinese government travelling upon the business of that government are exempted, their credentials being taken as equivalent to the certificate.
By the act of July 5, 1884, 23 Stat. 115, c. 220, this section six of the act of 1882 was amended and enlarged, so as to provide for the permission to be obtained from the Chinese government, or such other foreign government of which at the time the Chinese person shall be a subject; and declaring that the certificate provided for shall, before he goes on board any vessel to proceed to the United States, be viséd by the indorsement of the diplomatic or consular representative of the United States in the foreign country from which such certificate issues, whose duty it is made to examine into the truth of the statements therein before indorsing it, and if they are found to be untrue to refuse such indorsement. The section then declares that "such certificate, viséd as aforesaid, shall be prima facie evidence of the facts set forth therein, and shall be produced to the collector of customs of the port in the district in the United States, at which the person named therein shall arrive, and afterward produced to the proper authorities of the United States whenever lawfully demanded, and shall be the sole evidence permissible on the part of the person so producing the same to establish a right of entry into the United States; but said certificate may be controverted and the facts therein stated disproved by the United States authorities."
This clause disposes of the case before us. No certificate was presented by the petitioner under the statute, showing that he was entitled to enter the United States, nor was any attempt made to account for its absence. The evidence offered to show that the petitioner was a merchant was weak and unsatisfactory, but the statute itself does away with the *428 necessity for any investigation by the court as to its sufficiency, for it declares that, while the certificate may be controverted by the authorities of the United States, and is to be taken by them only as prima facie evidence, it shall constitute the only evidence permissible on the part of the person producing the same to establish his right to enter the United States.
The result of the legislation respecting the Chinese would seem to be this, that no laborers of that race shall hereafter be permitted to enter the United States, or even to return after having departed from the country, though they may have previously resided therein and have left with a view of returning; and that all other persons of that race, except those connected with the diplomatic service, must produce a certificate from the authorities of the Chinese government, or of such other foreign government as they may at the time be subjects of, showing that they are not laborers, and have the permission of that government to enter the United States, which certificate is to be viséd by a representative of the government of the United States.
Judgment affirmed.
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254 F.2d 605
Billye LEEPER, as Administratrix of the Estate of William V.Lewis, Deceased,v.MARYLAND CASUALTY COMPANY.
No. 5745.
United States Court of Appeals Tenth Circuit.
Dec. 9, 1957.
Appeal from the United States District Court for the Eastern District of Oklahoma.
Foliart, Hunt & Shepherd, Oklahoma City, Okl., and Stevenson, Huser & Huser, Holdenville, Okl., for appellant.
Horsley, Epton & Culp, Wewoka, Okl., for appellee.
Before BRATTON, Chief Judge, and BREITENSTEIN, Circuit Judge.
PER CURIAM.
1
Appeal dismissed on motion appellant.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 23, 2019*
Decided April 24, 2019
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18‐2740
CHARLES DONELSON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 17 C 8078
Q. TANNER, et al., Gary Feinerman,
Defendants‐Appellees. Judge.
O R D E R
Charles Donelson, an Illinois inmate, alleges that prison officials acted with
deliberate indifference in violation of the Eighth Amendment when they forced him to
eat off food trays that he considered unsanitary. The district court dismissed the case
because he lied on his application to proceed in forma pauperis. Because the court did
* The defendants were not served with process in the district court and are not
participating in this appeal. We have agreed to decide this case without oral argument
because the brief and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐2740 Page 2
not clearly err in finding that Donelson lied about his financial and litigation history,
and it did not abuse its discretion in dismissing the case as a sanction, we affirm.
When Donelson applied to proceed in forma pauperis, the district court denied
his application and issued a show cause order. The court demanded to know why the
case should not be dismissed given that Donelson had omitted portions of his litigation
history (despite the application’s instruction that he disclose his entire history), his
financial disclosures were inconsistent, and he had failed to pay past filing fees even
after receiving thousands of dollars that should have enabled him to do so.
Donelson’s reply did not satisfy the court. He insisted that he was “under
extreme distress medically and mentally” and that led to a “mistake” regarding his
litigation history, his finances, and payment of past‐due fees from his funds. He later
submitted a revised application to proceed without prepaying filing fees, but the district
court rejected it and dismissed the case with prejudice. The court stressed that
Donelson’s omissions in his first application were too extensive to be inadvertent. He
had omitted more than one‐third of his cases (17 out of 45), lied materially under
penalty of perjury about his financial information, and willfully failed to pay any
past‐due filing fees even though at one point he knew that he had over $4,000 at his
disposal. The court ruled that these omissions were fraudulent, “inexcusable,” and
warranted a “weighty sanction.” Donelson moved for reconsideration under Federal
Rule of Civil Procedure 59, but the court denied the motion because his arguments
either were frivolous or repeated his previous response.
We review the district court’s finding of fraud for clear error and its dismissal of
the claims for abuse of discretion. See Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011).
Donelson first argues that the court clearly erred when it found that he
defrauded the court, maintaining that his inconsistencies and omissions were
unintentional. But the court’s findings were not clearly erroneous for at least two
reasons. First, when a litigant fails to disclose litigation history—something readily
known to the litigant—a court may permissibly find that the litigant intended to
defraud. See Hoskins, 633 F.3d at 543. Donelson admitted that he did not disclose in his
initial application a significant portion of the cases that he had previously filed, despite
the application’s order that he list all lawsuits. Second, a court may find that a litigant
committed fraud by lying about the amount of money that he can access. See Thomas v.
Gen. Motors Acceptance Corp., 288 F.3d 305, 306, 308 (7th Cir. 2002). Donelson did just
that. He acknowledged that his statement of available funds substantially understated
the amount reflected in the prison’s records, even though those records were available
No. 18‐2740 Page 3
to him. Thus, the court did not clearly err when it found that when Donelson signed his
application and swore that the financial information he provided was correct to the best
of his knowledge, he knew that he was lying. The court, therefore, did not clearly err in
rejecting Donelson’s claim of innocence. See Hoskins, 633 F.3d at 543.
Nor did the court abuse its discretion when dismissing the case as a sanction.
District courts may dismiss a case when a litigant fails to disclose litigation history.
See Hoskins, 633 F.3d at 544; Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999). Courts may
also dismiss a case when a litigant, in applying for the privilege to litigate without
prepaying filing fees, lies to the court about his financial status. See Rivera v. Drake, 767
F.3d 685, 686–87 (7th Cir. 2014); Thomas, 288 F.3d at 308. Because Donelson had a history
of failing to pay filing fees, the court reasonably thought that more financial sanctions
would not work. See Rivera, 767 F.3d at 686–87. Dismissal was a permissible result.
AFFIRMED
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116 Ga. App. 324 (1967)
157 S.E.2d 514
BRAWNER
v.
MARTIN & JONES PRODUCE COMPANY, INC.
43067.
Court of Appeals of Georgia.
Argued September 6, 1967.
Decided September 15, 1967.
R. Larry Turner, Israel Katz, for appellant.
*327 Greene, Buckley, DeRieux, Moore & Jones, Harry L. Greene, Edgar A. Neely, III, for appellee.
HALL, Judge.
The plaintiff appeals from the judgment sustaining the corporate defendant's motion for summary judgment. The defendant has made a motion to dismiss the appeal on the ground that the record was not transmitted to this court within 20 days after the appeal as required by Ga. L. 1965, pp. 18, 28, as amended, Ga. L. 1966, pp. 493, 497.
1. The notice of appeal was filed in the trial court on June 9, 1967, and a part of the costs paid on that date. The clerk mailed a bill for the balance of costs to the plaintiff on June 14, and this was paid and the record transmitted to this court on July 26.
The statute provided for the record in this case to be transmitted by June 29 (20 days after June 9). Had the record been transmitted on that date, the case would have been docketed in this court for argument at the September term. Due to the plaintiff's delay in payment of the balance of costs the record was not transmitted until July 26. Under the regular procedures of this court the case on that date was docketed for argument at the September term. Thus the delay in transmittal was not prejudicial to the defendant in causing a delay in hearing or decision of the appeal, and the defendant does not show any change in his position or inequity resulting from the delay in transmittal of the record.
The motion to dismiss is denied. Hornsby v. Rodriguez, 116 Ga. App. 234.
2. The petition alleged that the plaintiff was injured and damaged *325 by the negligence of the individual defendant, who was the agent of the corporate defendant and was driving a truck owned by the corporation within the scope and course of his employment. The petition specified negligent acts and omissions by the driver and alleged that the corporation was negligent in permitting him to drive when it knew or should have known that he did not have a driver's license. The defendant submitted in support of its motion for summary judgment the deposition of the driver, its employee, and an affidavit of an officer of the corporation. The affidavit stated: the affiant had hired the employee to load trucks, put up stock, clean up the loading dock and inside the building; he knew the employee did not have a driver's license; the employee's duties did not involve driving any vehicle, and he had been instructed never to drive any vehicle of the employer. The employee had never before the incident alleged driven or been given permission to drive any of the employer's vehicles and at the time in question had not been given permission to drive and was driving without the permission or knowledge of the employer; and at the time of the incident the employee was on his own time and was not on the employer's business. The deposition of the employee corroborated these facts, and he testified that the day of the incident he got to work before the time to punch the clock, 8 p. m., and he was just sitting around and he went out and got in one of the trucks and thought he would drive up and get some coffee while he was waiting.
In response to the motion the plaintiff submitted affidavits of the plaintiff and her husband, who was present in the car the plaintiff was driving. These affidavits stated that the employee did not say to the affiants after the collision that he was not at work or that he was not authorized to drive the truck, but seemed anxious and requested that his employer be notified of the collision and that the truck be returned to them. The affidavit of the plaintiff stated that she was prepared to testify at the trial that to her best perception and belief she had seen the employee driving a truck of Martin & Jones (the employer) around the lot at the Farmers' Market, where she did her shopping.
The defendant's evidence pierced the allegations of the petition that the employee was driving the employer's truck within the scope and course of his employment. The evidence presented by the plaintiff was insufficient to rebut the defendant's *326 evidence so as to create a conflict as to this essential issue of fact. The trial court did not err in granting the defendant's motion for summary judgment. Studstill v. Aetna Cas. &c. Co., 101 Ga. App. 766, 768, 770 (115 SE2d 374); Scales v. Peevy, 103 Ga. App. 42, 47 (118 SE2d 193); Sparks v. Buffalo Cab Co., 113 Ga. App. 528, 530 (148 SE2d 919); King v. Fryer, 107 Ga. App. 715, 717 (131 SE2d 203); Allen v. Safeco Ins. Co., 108 Ga. App. 278 (132 SE2d 859).
The order sustaining the motion for summary judgment was entered April 3, 1967, by Judge Etheridge. On April 11 the plaintiff presented to Judge Moore an amendment to her petition containing additional allegations of negligence against the defendant corporation. The court allowed this amendment subject to objection and demurrer. On April 28 the plaintiff filed a motion for reconsideration of the order granting summary judgment, alleging in substance that she expected to produce additional evidence of a principal-agent relationship between the employer and employee, and that she had retained new counsel with the consent and release of former counsel, and obtained a rule nisi directing the defendant to show cause why the motion for reconsideration should not be granted. The record does not show that the plaintiff had not had a reasonable opportunity to make out her case prior to the judgment, or that she presented any grounds at the hearing on this motion that would require the court to reconsider or modify the summary judgment. The court did not err at the hearing on May 23 in overruling the motion for reconsideration and confirming its order sustaining the motion for summary judgment.
On May 23 also the court sustained the defendant's general demurrer to the plaintiff's amendment allowed by Judge Moore. The summary judgment entered on April 3 was a final judgment in this case. Ga. L. 1959, pp. 234, 236; Scales v. Peevy, 103 Ga. App. 42, 46, supra. The amendment to the petition offered April 11 was too late, and the trial court did not err in sustaining the general demurrer thereto.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.
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525 So.2d 681 (1988)
Charlotte M. HILL
v.
James C. MOORMAN, et al.
No. CA 87 0451.
Court of Appeal of Louisiana, First Circuit.
May 17, 1988.
P. David Carollo, Slidell, for plaintiff, appellant.
G. Brice Jones, Slidell, for defendant, appellee.
Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.
COVINGTON, Chief Judge.
Charlotte Manz Hill appeals the judgment of the trial court dismissing her claim for reasonable visitation with her natural son, who was adopted by James and Martha Moorman. Mrs. Hill (at that time Manz) executed a Voluntary Act of Surrender on July 5, 1984, of her twenty-month old child, fifteen days after the Moormans executed a notarial act granting Hill "reasonable visitation rights." The Moormans also stated in this document signed June 20, 1984, that they were anticipating the Act of Surrender, a copy of which was attached to the executed document.
There was no testimony taken in this matter. However, both parties agree that some time subsequent to the final adoption decree, Mr. and Mrs. Moorman refused to allow Mrs. Hill to visit the child. On April 28, 1986, Mrs. Hill filed a petition to enforce the "reasonable visitation rights" provision in the June 20th document. In dismissing this claim, the trial court found Mrs. Hill to be a legal stranger, who forfeited her parental rights by giving up her child for adoption. The court found that any agreement to the contrary was unenforceable.
Charlotte Manz Hill does not directly attack the act of surrender or seek to annul the decree of final adoption, although it is alleged in her petition that she would not have signed the act of surrender but for the visitation rights. It is well established that:
An authentic act may be set aside where a party thereto has been induced to execute it through fraud, error, duress or threats, and he is permitted to introduce parol testimony in support of allegations to that effect. Ball v. Campbell, 219 La. 1076, 1088, 55 So.2d 250, 254 (1951).
However, Mrs. Hill does not seek to have the act declared invalid. The relief she seeks is to enforce the "visitation rights" agreed to by the Moormans.
La.Civil Code art. 1968 provides, "[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy." We find that an agreement to visitation by the natural parent in these circumstances is against public policy. In all legal regards, upon the final decree, adoptive parents have the same right of custody and control of the child as if that child had been born to them and blood parents are relieved of all their legal duties and divested of all their legal rights in respect to the adopted child. La.Civil Code art. 214. An agreement providing for visitation by a third party would impair the *682 adoptive parents' rights. Such an agreement might also impair the new parentchild relationship with very undesirable consequences. We find that such an agreement is unenforceable. See Coile v. Coile, 350 So.2d 934 (La.App. 2d Cir.), writ denied, 352 So.2d 1047 (La.1977).
Mrs. Hill may have had cause to challenge the adoption decree based on the actions of the Moormans. We certainly do not condone the practice of agreeing to visitation by the natural mother as an inducement for her signing an act of surrender and then reneging on the agreement. Under LSA-R.S. 9:440, no action to annul a final decree of adoption rendered prior to July 31, 1985, but after January 1, 1984, for any reason, shall be brought after a lapse of six months from July 31, 1985. Obviously, plaintiffs action was not brought timely. Since the record indicates that the final decree of adoption was signed on or about June 3, 1985, Mrs. Hill is precluded from raising this issue now.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against appellant.
AFFIRMED.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2583
____________
YVONNE HILBERT,
Appellant
v.
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
______________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No. 1-15-cv-00471)
District Judge: Hon. Sylvia H. Rambo
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 21, 2018
______________
Before: McKEE, SHWARTZ, and COWEN, Circuit Judges.
(Opinion filed: November 26, 2018)
_______________________
OPINION
_______________________
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.
Yvonne Hilbert appeals the District Court’s orders granting judgment on the
pleadings for Lincoln Insurance Company on Hilbert’s claim for equitable relief and
summary judgment for Lincoln on Hilbert’s other claims under the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §§ 1001-1461. Hilbert sued after Lincoln
Insurance denied her request for long-term disability (“LTD”). The District Court also
denied Hilbert’s request for conflict discovery. In denying that request, the District Court
held that Hilbert “failed to establish any good faith basis for alleging bias or other
irregularity in [Lincoln’s] decision-making process that affected her claim or that raises a
reasonable suspicion of misconduct.”1
As to the motion for judgment on the pleadings concerning Hilbert’s claim that
Lincoln breached its fiduciary duty, which she contends entitles her to relief under 29
U.S.C. § 1132(a)(3), the District Court considered the applicable law and correctly applied
it to reject Hilbert’s claim.2
After a thorough review of the summary judgment record, the District Court
1
Hilbert v. Lincoln Nat’l Life Ins. Co., No. 1:15-cv-0471, 2016 WL 727584, *2 (M.D. Pa.
Feb. 24, 2016); see Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008) (“The
conflict of interest . . . should prove more important (perhaps of great importance) where
circumstances suggest a higher likelihood that it affected the benefits decision . . . . It should
prove less important (perhaps to the vanishing point) where the administrator has taken
active steps to reduce potential bias and to promote accuracy . . .”) (internal citations
omitted).
2
Hilbert v. Lincoln Nat’l Life Ins. Co., No. 1:15-cv-0471, 2015 WL 8150418, *5 (M.D. Pa.
Dec. 8, 2015).
2
concluded that Hilbert was not eligible for LTD benefits under the Plan.3 We agree that
the record demonstrates that she is not independently totally disabled from a condition
other than depression, which is the very same pre-existing condition that disqualified her
for LTD coverage.4 In its thorough and thoughtful opinions, the District Court explained
why Lincoln’s decision to deny Hilbert’s request for LTD coverage was neither arbitrary
nor capricious.
Accordingly, we will affirm the District Court’s orders granting judgment on the
pleadings and summary judgment in favor of Lincoln, and its denial of Hilbert’s request
for conflict discovery for substantially the reasons given by the District Court in its
December 8, 2015, February 24, 2016, and June 19, 2017 opinions.
3
Hilbert v. Lincoln Nat’l Life Ins. Co., No. 1:15-cv-0471, 2017 WL 2633503, *9 (M.D. Pa.
June 19, 2017).
4
Id. at *7–8.
3
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00083-CV
IN THE INTEREST OF E.M., E.M., J.L., A.L., AND M.L., CHILDREN
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 16C1580-102
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
The Texas Department of Family and Protective Services (the Department) filed a petition
to terminate Jason Lester’s parental rights to his four children, Emily, Alice, Jane, and Mary.1 The
trial court terminated Lester’s parental rights after finding that (1) he voluntarily left the children
alone or in the possession of a non-parent for at least three months without providing adequate
support for them or expressing an intent to return, (2) he knowingly placed or allowed the children
to remain in conditions or surroundings which endangered their physical or emotional well-being,
(3) he engaged in conduct or knowingly placed the children with persons who engaged in conduct
which endangered their physical or emotional well-being, and (4) termination of his parental rights
was in the children’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(B), (D), (E), (b)(2)
(West Supp. 2017).
On appeal, Lester argues that the evidence is legally and factually insufficient to support
the trial court’s findings on the statutory grounds for terminating his parental rights.2 Because we
find that sufficient evidence supported the trial court’s finding under Ground D, we affirm the trial
court’s judgment.
1
To protect the confidentiality of the children involved, this Court will refer to all involved parties by fictitious names.
See TEX. R. APP. P. 9.8(b).
2
Lester does not challenge the best-interest finding.
2
I. Sufficient Evidence Supports Termination of Lester’s Parental Rights
A. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental
right to make decisions concerning “the care, custody, and control of their children.” Troxel v.
Granville, 530 U.S. 57, 65 (2000). This Court is therefore required to “engage in an exacting
review of the entire record to determine if the evidence is . . . sufficient to support the termination
of parental rights.” In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). We construe involuntary
termination statutes strictly in favor of the parent. In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—
Texarkana 2007, pet. denied) (citing Holick, 685 S.W.2d at 20).
In order to terminate parental rights, the trier of fact must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016);
In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). “Clear and convincing evidence” is that “degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2014); see
In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our
review of the evidence.
Despite the heightened burden of proof that is required to be met, in our legal sufficiency
review, we consider all the evidence in the light most favorable to the findings to determine
whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds
3
for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re
J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We assume the trial court
resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and
disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of
which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.
In our review of factual sufficiency, we consider only that evidence the fact-finder
reasonably could have found to be clear and convincing and determine “whether the evidence is
such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the
. . . allegations.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (quoting In re C.H.,
89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). “If, in light of
the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in
favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d at 266. In our
deliberations, we make “an exacting review of the entire record with a healthy regard for the
constitutional interests at stake.” A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d 17, 26
(Tex. 2002)). Nevertheless, we maintain our deference for the role of the fact-finder. See In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002). The fact-finder is the sole arbiter of a witness’ demeanor and
credibility, and it may believe all, part, or none of a witness’ testimony. H.R.M., 209 S.W.3d at
109.
Although profound constitutional interests are at stake in a proceeding to terminate parental
rights, “the rights of natural parents are not absolute; protection of the child is paramount.” In re
4
A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)
(citation omitted)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “A child’s emotional and
physical interests must not be sacrificed merely to preserve parental rights.” In re C.A.J., 459
S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).
B. The Evidence at Trial
Lester testified that he divorced the children’s mother in 2014 as a result of her drug use.
After her incarceration in 2016, Lester, who was unemployed and had no home of his own, was
left to care for the children alone. Lester chose to live at the residence of his girlfriend, Jennifer
Jeffrey, with the children, even though he knew that Jeffrey was abusing drugs at that time. When
Lester discovered that Jeffrey “had left some marks on [the] kids’ butts,” he broke up with Jeffrey
and moved into his sister’s home for one month with the children. They soon needed another place
to live.
On July 7, 2016, Lester took the children to the home of their elderly maternal great-
grandparents, Chris and Kathryn Telard. Lester knew that Kathryn was legally blind, that Chris
used a cane to walk, and that the couple was generally in poor health. Lester also had knowledge
that the children had gotten lice while they had previously stayed at the Telards’ home in 2014.
Lester admitted that the condition of the Telards’ home was dirty, but that he and other family
members had assisted in cleaning up the house.
The evidence at trial established that Lester had asked Chris if he could stay with the
children, but that Chris would not allow Lester to move in because he was concerned that he would
be unable to force Lester to remove himself from the house later. Consequently, Lester left the
5
children with the Telards and moved to Hope, Arkansas, as he attempted to secure an apartment
for them. Lester’s mother, Lisa Bailey, and step-father, Charles Bailey, maintained a home
approximately one-half mile from that of the Telards. Lester testified that he travelled to the Bailey
home on the weekends to visit with the children there.
Tanya Delamar, an investigator with the Child Protective Services (CPS) Division of the
Department, testified that she received an intake in September 2016, the Telards were physically
unable to care for the children, the condition of the home was concerning, and the children were
not attending school regularly or receiving proper medical care. Delamar, who traveled to the
Telard home to investigate the initial complaint, testified that the Telards were “in bad health” and
the home was “not really clean.” Although she did not see anything “particularly dangerous” about
the condition of the home, she spoke to the Telards, who informed her that they had been unable
to “get Mr. [Lester] to come and get the children.”
Delamar discovered that the children were attending school, but that Alice had missed one
day of school and the other children had missed “several days” by the September intake. Delamar
testified that eight-year-old Jane was in good physical condition and was able to care for herself,
that eleven-year-old Emily was the caregiver to six-year-old Mary, and that Mary was “a little
dirty,” but that it was late in the afternoon. She added that the children’s physical needs had been
met, but was concerned that nine-year-old Alice, who had her trachea removed, still had a
gastronomy tube and a stoma site which had not healed. Alice had also undergone foot surgery to
repair a foot that “turn[ed] out” and surgery for a “misaligned” jaw. Delamar opined that Alice
may not have been receiving adequate medical treatment, but failed to request any medical records
6
to ascertain whether medical treatment was required. However, she testified that Lester had made
several appointments for Alice for follow-up treatment, but had not kept those appointments.
According to Delamar, Alice’s medical condition was not life-threatening, but the lack of medical
treatment affected her quality of life.
Following this initial investigation, Delamar testified that she received an additional report
that “bug droppings” were seen in milk that had been sent to the school for Alice. When Delamar
returned to the Telard home to investigate the new report, she discovered a dead rodent atop a
plastic tub containing milk and other supplies for Alice, as well as insect droppings inside of the
tub. Delamar clarified that the Telards could not see the droppings and were simply unaware that
the home needed to be cleaned. Delamar’s investigation concluded with a finding that the Telards
were not physically able to care for the children and that the conditions of the home endangered
the children’s physical health.
Delamar testified that she spoke with Lester in October 2016, explained that the Telards
were unable to care for the children, and asked Lester to either take the children or secure another
placement for them. In response, Lester informed Delamar that he anticipated having an apartment
by November 1. However, Delamar advised that she later spoke with Lester, who again claimed
he was unable to secure an apartment, and that the repetitious nature of the conversation prompted
the Department to take action. At trial, Lester testified that his ex-girlfriend had stolen his bank
card and that it took a few months to get the money back from the bank. He claimed that he already
had a mobile home secured for use as a residence and had gotten the electricity turned on by
December 1. However, by this time, the children had missed more school, and Lester testified it
7
did not surprise him that Emily and Jane had missed eighteen days of school between September 8
and November 28. Lester was also not surprised to learn that all of the children also had lice when
they came into the Department’s care because he had treated the children for head lice “[s]everal
times.”3
Delamar also testified that the Telards reported receiving no support from Lester other than
the milk he dropped off for Alice. Delamar added, however, that Lester claimed to her that “he
was providing like 15 cans of food every month because he was still receiving the SNAP benefits,
and he was still receiving [Alice’s] [Social Security Income (SSI)] disability check.” At trial,
Lester admitted that he used Alice’s SSI check, which was $733.00 per month, but testified that
he used it to buy groceries and clothes for all of the children while they were at the Telards. The
Baileys testified that they personally witnessed Lester purchasing groceries for the children every
month.
According to Delamar, Lester made no effort to obtain the children’s return before they
were removed from the Telard home on December 8, 2016. In January, Lester moved into the
Bailey home and was provided with a family service plan which outlined services and
requirements for Lester to complete prior to obtaining the return of his children. In February,
Lester was arrested on an outstanding warrant for driving an automobile while his driver’s license
was invalid, served sixty days in county jail, and was released in April. Chandra Zachery, a
caseworker with CPS, testified that Lester did not work on the family service plan from January
The testimony established that Delamar “saw the lice at the girls’ shelter the night that [she] placed [Emily, Jane, and
3
Mary],” but did not become aware that Alice had lice until Alice’s foster parent called on the day after her placement.
However, Delamar testified she could not be certain where the children had contracted the lice.
8
to May 2017. In June, the month before the final termination hearing, Zachery testified that Lester
began counseling. While Lester claimed at trial that he had seen the children regularly since he
had dropped them off at the Telards in June 2016, he told his counselor in June 2017 that he had
not seen the children in about a year.4 Although Lester tested negative for drugs on one occasion,
Zachery testified that Lester had not taken other requested drug tests.
At trial, Delamar testified that Jane threatened to commit suicide before the children were
removed from the Telards’ home. According to Delamar, Emily said Lester did drugs, had beaten
the children, and had a girlfriend who had also beaten them. Delamar and Zachery both testified
that after the removal, the children specifically informed them that they did not want to return to
Lester or have any contact with him. Zachery added that the children threatened to run away if
they were ever returned to Lester, who they described as “mean.” Melinda Cree, a Court
Appointed Special Advocate for the children, testified that the children were afraid of Lester.
Lester admitted that he had smoked marihuana five years ago, but denied any other drug
use or physical abuse of the children. He further denied that he had neglected Alice’s medical
care, although he admitted that he had to reschedule appointments for her. Lester testified that
doctors informed him that her stoma site would take up to two years to close and that he was to
bring her in for a follow-up if it did not close on its own. Lester said that he had set up a follow-
up appointment January 5, 2017, but that the children had already been removed from his care at
that time. Charles testified that he had taken Lester and Alice to medical appointments.
4
Lisa testified that the children came for regular visits to her home. However, Charles testified that Lester saw the
children on Thanksgiving 2016, but did not know if he had visited with them at any other time.
9
Lester and the Baileys testified that Lester loved his children and yearned for their return.
According to Lester, Chris claimed that the children were going to school and that he was not
aware that the Telards’ home endangered the children. Charles also testified that Lester was led
to believe that the Telards were providing a safe place for the children. In terms of planning for
the children’s return, the Baileys had provided Lester with a three-bedroom home, which he was
in the process of repairing. Although he had not worked in three years and had no income, Lester
testified he was in the process of appealing the denial of his application for Social Security
disability status and the payments that would result from that.
Ultimately, the trial court agreed with Zachery’s and Delamar’s testimony that Lester had
knowingly placed or allowed the children to remain in conditions or surroundings which
endangered their physical or emotional well-being.
C. Sufficient Evidence Supported a Ground D Finding Against Lester
Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment
of termination when there is also a finding that termination is in the child’s best interest. A.V., 113
S.W.3d at 362; In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.); In re N.R.,
101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). “If multiple predicate grounds are
found by the trial court, we will affirm based on any one ground because only one is necessary for
termination of parental rights.” K.W., 335 S.W.3d at 769 (quoting In re D.S., 333 S.W.3d 379,
388 (Tex. App.—Amarillo 2011, no pet.)).
Under Ground D, the trial court may terminate a person’s parental rights if it finds that the
parent “knowingly placed or knowingly allowed the child[ren] to remain in conditions or
10
surroundings which endanger[ed] the physical or emotional well-being of the child[ren].” TEX.
FAM. CODE ANN. § 161.001(b)(1)(D). In making that determination, “we must examine the time
before the [child]’s removal to determine whether the environment [of the home] posed a danger
to the child’s physical or emotional well-being.” In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—
Texarkana 2015, no pet.) (quoting In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004,
no pet.)). “[A] parent need not know for certain that the child is in an endangering environment;
awareness of such a potential is sufficient.” In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). “A child is endangered when the environment creates a
potential for danger that the parent is aware of, but disregards.” L.E.S., 471 S.W.3d at 925 (quoting
In re N.B., No. 06-12-00007-CV, 2012 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012,
no pet.) (mem. op.)).
The child does not have to suffer actual injury. “Rather, it is sufficient that the child’s well-
being be jeopardized or exposed to loss or injury.” In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—
Tyler 2003, no pet.) (citing In re J.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ
denied)). Moreover, parental rights may be terminated based on a single act or omission by the
parent. L.E.S., 471 S.W.3d at 925 (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana
2003, pet. denied)).
Here, after their mother’s incarceration, Lester moved the children into Jeffrey’s home,
even though he was aware that she was using illicit drugs. Lester denied having abused the
children, but other evidence at trial indicated that Lester was a drug abuser and that the children
were beaten by both Lester and Jeffrey. “[A]busive or violent conduct by a parent or other resident
11
of a child’s home can produce an environment that endangers the physical or emotional well-being
of a child.” Id. (quoting In re B.E.T., No. 06-14-00069-CV, 2015 WL 495303, at *5 (Tex. App.—
Texarkana Feb. 5, 2015, no pet.) (mem.op.)). The evidence established that all of the children
described Lester as mean, desired no contact with him, and threatened to run away if they were
ever returned to him and that each was aware that Jane had attempted suicide.
As for the Telards’ home, the evidence demonstrated that Lester knew that the elderly
couple was in poor health, that their home was unclean, and that the children had previously
contracted lice from the home. Lester testified that he and other family members cleaned their
home “[s]everal times,” demonstrating that he was aware of both the conditions of the home and
the Telards’ inability to remedy those conditions. Delamar’s testimony established that the older
children were either caring for themselves or providing care for the younger children. In October,
even after Delamar contacted Lester to explain that the Telards were not in a position to physically
care for the children, Lester continued to allow his children, including Alice, who had special
medical needs, to remain there.
Because the Telards were not able to properly supervise the children, they missed several
days of school.5 Delamar then received a report from the school that Alice’s milk contained insect
feces. Delamar found a dead rodent atop a plastic container housing Alice’s milk and other
supplies, and insect droppings inside the container. Delamar testified that Lester “had at that point
dropped off a new supply of milk from the provider, but it was out in the garage.” Lester testified
5
“Allowing children to live in unsanitary conditions, neglecting their physical condition, and failing to see to their
educational needs can constitute endangerment.” In re K.H., No. 05-00-02112-CV, 2002 WL 312494, at *3 (Tex.
App.—Dallas Feb. 28, 2002, no pet.) (not designated for publication).
12
that Alice’s milk was shipped to him once a month and that he dropped the milk and other groceries
off at the Telards, again giving him an opportunity to view the conditions of the home (a home
which Delamar testified endangered the children’s physical health). When Delamar spoke to
Lester in November, he again claimed that a home was not ready for the children and that he
allowed them to remain with the Telards. Lester further testified that it did not surprise him that
all the children had lice when taken into the Department’s care because they had previously
become afflicted with head lice at the Telards’ home.
Based on the evidence presented, a fact-finder could have concluded that the environment
of Jeffrey’s and the Telards’ homes created a potential for danger to the children’s physical and
emotional well-being that Lester was aware of, but disregarded. Accordingly, we find the evidence
both legally and factually sufficient to support the trial court’s finding under Ground D. We
overrule Lester’s point of error.
II. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: November 20, 2017
Date Decided: November 21, 2017
13
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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVERSELLERS
ATTORNEY GENERAL
Zonorcble S. H. Allen
county nttoxncy
Hadlton Counbp
Radlton, Texas
Dear Sir;
Your lstter ot Fab request1 ng the
opinion or. this department ‘ompcAaation of the
9 .?htrlff of:Ystilton C as followo:
f
~flolals or said oounty are oonpwuwted
Q perforwmce of their oflfloisl sarvioes
ual salary basis.
61, i.rtlole 16 or the State Constitution,
anonrj other thiog, provilss in ef’ieot that tne Coadsslonara*
Cart in Counties huving a pOptibtiOU Of lea6 than twenty
thousand (20,000) lnhabitcmts sooordln~ to the then last
prt~csding fe3eral census, s&all have tiae authority to de-
terdne whether county ofl’ioars mhall bb compeiisatc.6 on a
fbt haeia or on a ealerp baeia.
Iionorabls 3. R. Allen, pa&;* 2 ’
.:;eotlon 2 of Artiolr 39126, ?ernoa’s Annotated
ClVil ::tatutd8, provides iA part:
*IA oountles havlnc: 4 population of lees
than twenty thousand (?O,OOO) lahabltanta ao-
aordlng to the last praorlllng tedbral. eonbum,
it shall likwise be tne duty of the Conmlssion-
lrs* Court, by its order duly 1~38 and eatsred
of moor6 at it Pirat regrller meetin& in Jan-
uary ot eaoh 0,4 Unbar yeer, to dstwmlno whether
oounty 0frlOiA of suoh oountp (cxolucilna oounty
uurveyorc, registrars of vital st~tlstlos and
notarj p&lios) shall be OOmpGrl8etd for t(?e
fisocrl your ou the basis of an annual salary
or whether they shall Oe oo=.>wwntrSU on the
basis of fees earned by tbm in tha perfomaooa
of their offiolsl duties, an3 it rhall also be
the duty of the oowty clerk to forward to the
Comptroller of i’ubllo Accounta of the Otete of
Texas, on or bbfors the jlst dap of Januwl,‘a
certiflcd copy of sail order of ealri Cormisaionsrs~
Court.”
\
Art!.oler 388j and 3891, ~el’non’c Annotated
UAdbX'
Civil Me maximum oompansation that mcy be ra-
Zitatutes,
talne3 by tbe .“.hsrlrf of :iao;ilton County cannot ~xobsd
Throb Thouband ( $jWO) '30111~s per aniium. The lherlff
Is authorlssd *under Artlole 3891 to psy or be pal:1 the
amcuat rtlig#edbin under the psovlalons oi id%lole
)82j, together with the salarise of hla aaeistan$s and
deputjas. an.i a&horized exp&~~ses wlur Artiols 3839,
and the awlunt ~aeaeasary t3 cover costs of prelrium on
wnatsver siiretg bonds that may be rbqufrad by law,
out of the o.irmnt feee of Me. o,Crloo. If tbc o~rrTi?.lt
fees of auoh ofriou, oolisoted 5~nany yaar, be r.ore
than the amount naeded to pay the fu!mmt above 8geCiflea.
the BC~ snali be .iea;,& axoeos leas and &-ml1 be dlui.0.~ed
of ln ~JJGwnncr Etated ln ,.rtlcle 3691. 310 :shdrr 16
a&hrized to sake the atove ded.mtloae in arri+in.:, at
his maximum oospensatioc.
Honorable 3. R. Allen, pa&e 3
hrtlole 3934, Vernon*8 Annotated Civfl Jtatutea,
~rClVidO6:
Vherlffs, ahall also rcoeivr the following
ooapensationz
"(1)
Tar all prooees tesuc from the 3ipreaie
Court cgurts or Civil
or Appeals, terted by ther,
the mffie f6a8 es are elloued ttem for rlz.ilar
services upoz&roaena issue frocl the Metrlct
Courts.
“(2) For eum~onlng jurora In dlstrlot and
aountp oouxU+, serving all tl6otlon notlwm,
notice6 to overseers of' road8 and doing a11
other Fubllc b;rslness not otheruloa provided
ror, not exceeding ijne Thousand ($1,000) 3011~s
per annum to be fixed by the Comlseloners~ Court
at the awae time otimr ox off1010 salaries are
fixed, snd to be psi3 out of the general funde of
the oo$lntyl provided that no auoki ox offZolo
salary shall be allowed any EhQriff who baa reaelved
E ~maxf.mum s&lary al1we.i by 1ew."
:,z sboro s;atcr;1, und6r id.iole 383 and Artlale
)891, Y6rLlsll'B AflIlOt@it+d civil i%tUtGE, the :liaXihlU!? COB-
pensetlon of the 3htirirr of t.Kailton County oaanot oxces~l
Three Thousand (&jOOO) ‘Dollars >er annum.
Under the above mentioned statutes, the C&I&B-
sionars’ Court ~an~legallg allow the aherlff 61 otf~clo compansetlon
not to exceed We l&uaand (jlOO0) Dollars per ye*r, provided,
that the soid ex oXicis aoepeneatLon 4oee not l,ncreaee the
eom;ensatlon of the sheriff bejran.1 the maxlmlm *e provl3ed by
law.
Honorable 2. II. Allon, pnse 4
In ooaaeetloa with ths foregoing we want to pQint
out that la rlew of ;\rtlole 6869, Veraon*s &m(rtated Civil
Ststutes, that it is our opinion that the Coami~8fonsrs~
Court oan legally pay the salaries of deputy snerlffa out
of the general fund ol the county, if la the opinion of the
Comissfoners* Court, fees, of the ahmiff’s ofii@e are sot
sufficient to justify the papent of the salaries of such
leguties. The sslsriss of a;lah 1ayJtlea are to be dctermindd
as provided by Art:crle 3902, Yernmfs Annotated Civil ‘:tstut6s.
Yours ver;l :r4ly,
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915 F.2d 1276
59 USLW 2232
David VALENZUELA-GONZALEZ, Petitioner,v.UNITED STATES DISTRICT COURT FOR the DISTRICT OF ARIZONA, Respondent,United States of America, Real Party in Interest.
No. 90-70350.
United States Court of Appeals,Ninth Circuit.
Submitted July 27, 1990.*Decided Sept. 27, 1990.
Robert McWhirter, Asst. Federal Public Defender, Phoenix, Ariz., for petitioner.
Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for respondent.
Petition for Writ of Mandamus to the United States District Court for the District of Arizona.
Before NELSON, REINHARDT and BEEZER, Circuit Judges.
BEEZER, Circuit Judge:
1
Valenzuela-Gonzalez petitions for a writ of mandamus vacating the district court's order that his arraignment be conducted by closed circuit television. We grant the writ and vacate the order of the district court.
2
* Valenzuela-Gonzalez is a federal prisoner who was arrested in May, 1990. Upon his arrest, he appeared before a federal magistrate of the District of Arizona, who scheduled his arraignment for July, 1990. His trial was set for August, 1990.
3
In June, 1990, the United States District Court for the District of Arizona issued its General Order No. 190,1 amending the local rules to allow arraignment by closed circuit television.2 Shortly thereafter, the magistrate ordered that Valenzuela-Gonzalez's arraignment be conducted by closed circuit television.
4
Two days before his scheduled arraignment, Valenzuela-Gonzalez moved the district court for an order requiring that his arraignment be conducted in person. The district court heard the motion on an expedited basis on the day the arraignment was scheduled. The district court ruled that arraignment by means of audiovisual interactive technology did not violate the fifth or sixth amendments or Fed.R.Crim.P. 43.3 Valenzuela-Gonzalez immediately sought an order staying the district court's order, which we granted the next day. He now petitions for a writ of mandamus vacating the district court's order in this case.
5
This petition came on for hearing before us on July 27, 1990. We issued our order granting the writ and vacating the district court's order on July 27, 1990.4 This opinion follows.
II
6
We must first determine whether we have jurisdiction to issue the writ that is requested. Under the All Writs Act, 28 U.S.C. Sec. 1651(a),5 we unquestionably have the power to issue, in our discretion, a writ of mandamus in this case. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943); United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984). We must nevertheless determine whether mandamus is a proper remedy here.
7
The government first argues that we lack jurisdiction to vacate General Order No. 190 because it was not entered in a case involving the specific petitioner before us. Valenzuela-Gonzalez does not contest this argument. We need not reach it in any event, for Valenzuela-Gonzalez has not requested us to review General Order No. 190. He requests only that we vacate the district court's order in his case. Without accepting the government's argument, therefore, we review the district court's order only to the extent it concerns Valenzuela-Gonzalez.
8
The government next argues that we lack jurisdiction to issue a writ of mandamus vacating the order concerning Valenzuela-Gonzalez because his arraignment has not yet taken place. Because the harm complained of has not yet occurred, the government contends, "nothing has occurred that the defense can object to." Furthermore, the government suggests that we cannot review the district court's decision until we know that "the arraignment would in fact proceed the way the court anticipated." Absent these two circumstances, the government argues, our opinion would be merely advisory in violation of Article III of the United States Constitution. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937).
9
We disagree. First, we may easily evaluate the proposed arraignment procedure, since Valenzuela-Gonzalez's two codefendants have already been arraigned under the exact procedures challenged by Valenzuela-Gonzalez. Our evaluation of the scheme as it affects Valenzuela-Gonzalez is not contingent upon any uncertain event that might not occur. Thomas v. Union Carbide, 473 U.S. 568, 580-81, 105 S.Ct. 3325, 3332-33, 87 L.Ed.2d 409 (1985). Second, the standards for granting a writ of mandamus do not require that the challenged order be carried out before the writ can issue. See, e.g., Schlagenhauf v. Holden, 379 U.S. 104, 111, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964) (excessively oppressive discovery order); Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1491 (9th Cir.1989) (assertion of absolute privilege to discovery order). But for our stay, the harm Valenzuela-Gonzalez complains of is imminent. We conclude that the district court's order satisfies the "case or controversy" requirement of Article III.
10
The government concedes that the petition for writ of mandamus is otherwise an appropriate procedure for reviewing the order challenged here. We agree. The writ of mandamus is an extraordinary remedy reserved for situations where a trial court has exceeded its authority. Kerr v. United States, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir.1977). We have adopted five guidelines for determining if a writ of mandamus should issue:(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.
11
(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal.
12
(3) The district court's order is clearly erroneous as a matter of law.
13
(4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules.
14
(5) The district court's order raises new and important problems, or issues of law of first impression.
15
In re Allen, 896 F.2d 416, 419-20 (9th Cir.1990) (quoting Bauman, 557 F.2d at 654-55). No single factor is determinative, Bauman, 557 F.2d at 655, and all five factors need not be satisfied at once. In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982), aff'd mem. sub nom. Arizona v. United States Dist. Court, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983).
16
Mandamus is particularly appropriate when we are called upon to determine the construction of a federal procedural rule in a new context. Schlagenhauf, 379 U.S. at 111, 85 S.Ct. at 238 (Fed.R.Civ.P. 35); La Buy v. Howes Leather Co., 352 U.S. 249, 251, 77 S.Ct. 309, 311, 1 L.Ed.2d 290 (1957) (Fed.R.Civ.P. 53); United States v. Lasker, 481 F.2d 229, 235-36 (2d Cir.1973) (Fed.R.Crim.P. 48), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974). Such a situation presents the rare case where both the fourth and fifth Bauman factors are satisfied: we are presented with a novel question of law that is simultaneously likely to be "oft-repeated." Bauman, 557 F.2d at 655; see Harper, 729 F.2d at 1222. In addition, the first Bauman factor is satisfied here: since Valenzuela-Gonzalez's notice of appeal has not been certified for interlocutory appeal under 28 U.S.C. Sec. 1292(b), he has no adequate means to obtain review. We conclude that a petition for writ of mandamus is an appropriate method for reviewing the district court's order.6
17
We determine de novo whether the writ should issue. Seattle Times v. United States Dist. Court, 845 F.2d 1513, 1515 (9th Cir.1988). Before the writ may issue, we must be "firmly convinced that the district court has erred," id., and that the petitioner's right to the writ is "clear and indisputable." Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.
III
18
Valenzuela-Gonzalez argues first that the district court's order must be vacated because it violates his rights under the fifth and sixth amendments to the United States Constitution. The Supreme Court has long recognized that the accused has a right to be present at all critical stages of the proceeding against him. Kentucky v. Stincer, 482 U.S. 730, 744-45, 107 S.Ct. 2658, 2666-67, 96 L.Ed.2d 631 (1987); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934); United States v. Lewis, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). Arraignment, "far from a mere formalism," is a stage important enough to entitle the accused to the presence of counsel. Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411 (1972); Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970); Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158 (1932).
19
Nevertheless, whether the fifth and sixth amendments prohibit the use of closed circuit television at an otherwise proper arraignment is not immediately apparent. Arraignment is not a procedure required by the due process clause of the fifth amendment. Garland v. Washington, 232 U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772 (1914); United States v. Coffman, 567 F.2d 960 (10th Cir.1977). The sixth amendment right to confront witnesses is not implicated, since there are no witnesses. Snyder, 291 U.S. at 107, 54 S.Ct. at 332. Moreover, the Supreme Court has held that closed circuit television may satisfy the confrontation clause in limited circumstances. Maryland v. Craig, --- U.S. ----, 110 S.Ct. 3157, 3170, 111 L.Ed.2d 666 (1990).7
20
We need not resolve this question, however, for the presence of the defendant at arraignment is required under two federal rules of criminal procedure, Fed.R.Crim.P. 108 and Fed.R.Crim.P. 43(a).9 The protection of these rules is broader than the constitution provides. United States v. Gordon, 829 F.2d 119, 123-24 (D.C.Cir.1987); United States v. Christopher, 700 F.2d 1253, 1261-62 (9th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). It is the rule in this circuit that although arraignment may not be required, conducting an arraignment in the defendant's absence violates the plain instruction of the rule.10 Id. at 1262. There is simply "no provision for arraignment in the defendant's absence." Id.
21
Similarly, there is no provision for arraignment by closed circuit television. Under Rule 43, the defendant must be present at arraignment. Under Rule 10, the arraignment must take place in open court. We hold that these rules together require that the district court must arraign the accused face-to-face with the accused physically present in the courtroom.
22
The government urges that the federal rules of criminal procedure are to be construed broadly under Fed.R.Crim.P. 2.11 We recognize that substantial compliance with the "open court" requirement of Rule 10 may satisfy the rule. Sweeney v. United States, 408 F.2d 121 (9th Cir.1969); see also Fed.R.Crim.P. 10, advisory committee notes ("mere technical irregularity" does not warrant reversal). Moreover, the right to be present under Rule 43 is not absolute. United States v. Gagnon, 470 U.S. 522, 529, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486 (1985) (in camera conference); Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970) (unruly behavior at trial). Violations of Rule 43 are subject to the harmless error rule of Rule 52(a). United States v. Rogers, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975); United States v. Kupau, 781 F.2d 740, 743 (9th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986).
23
The District of Columbia Circuit has held that under certain circumstances, closed circuit television may satisfy the presence requirement of Rule 43, if the procedure is considered necessary by the court. See United States v. Washington, 705 F.2d 489, 497 n. 4 (D.C.Cir.1983) (per curiam) (unruly behavior at voir dire). The government, however, does not argue that the procedure is necessary as opposed to convenient here. Absent such a showing, we hold that arraignment by closed circuit television does not constitute substantial compliance with either Rule 10 or Rule 43.
24
Several states, including Arizona,12 have adopted rules allowing the use of closed circuit television for arraignments, with the approval of their state courts. See, e.g., Commonwealth of Pennsylvania v. Terebieniec, 268 Pa.Super. 511, 408 A.2d 1120, 1123-24 (1979) (noting no "circus atmosphere" or unconstitutional prejudice).13 But one state court, examining statutes not explicitly authorizing the procedure, did not approve its use. See State ex rel. Turner v. Kinder, 740 S.W.2d 654, 656 (Mo.1987) (en banc). After the state legislature amended the statute, the court gave its approval. See Guinan v. State, 769 S.W.2d 427, 430 (Mo.) (en banc), cert. denied, --- U.S. ----, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989).
25
"Strong reasons" support Federal Rules 10 and 43. In re United States, 784 F.2d 1062, 1063 (11th Cir.1986). Their purpose is to ensure, at a minimum, that the defendant has a copy of the indictment, "know[s] what he is accused of and [is] able adequately to defend himself." United States v. Romero, 640 F.2d 1014, 1015 (9th Cir.1981). "Without the presence of the defendant, the court cannot know with certainty that the defendant has been apprised of the proceedings." In re United States, 784 F.2d at 1063.14 Moreover, Rule 43 requires that the defendant be present at all stages of the trial, the plea and sentencing. Allowing the use of closed circuit television at arraignment without Valenzuela-Gonzalez's consent would amount to our tacit approval of its use at these other stages of the criminal proceeding as well.
26
Absent a determination by Congress that closed circuit television may satisfy the presence requirement of the rules, we are not free to ignore the clear instructions of Rules 10 and 43. We have held in other contexts that strict compliance with federal rules of criminal procedure is required. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516-17 (9th Cir.1990) (en banc) (Fed.R.Crim.P. 32). We see no reason to reach a different conclusion here. So long as Congress has chosen to provide those persons accused of federal crimes with the right to be arraigned in open court, we hold that the plain language of the rules must be followed.
IV
27
Arraignment by closed circuit television constitutes a violation of Federal Rules of Criminal Procedure 10 and 43. The petitioner's right to a writ of mandamus is clear and indisputable. The writ of mandamus shall issue and the district court shall vacate the order requiring arraignment of Valenzuela-Gonzalez by closed circuit television.
28
WRIT GRANTED.
*
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)
1
General Order No. 190, entered June 22, 1990, provides:
IT IS ORDERED that for a period of one year from the date of filing of this Order, in the discretion of any district judge or magistrate of the District of Arizona, initial appearances and arraignments of pretrial detainees may be conducted by video-conferencing. The attorney for the defendant may elect to be present by video with the defendant or may appear personally in the hearing room at the District Courthouse. A defendant having his initial appearance before a federal magistrate may be taken before such magistrate by video when authorized by that judicial officer.
2
This procedure has been instituted under a pilot project of the Federal Bureau of Prisons, Arizona District, Phoenix Division. Under the procedure, arraignment is conducted while the detainee remains in prison. Communication is established between the prisoner and the district court by a sophisticated video-teleconferencing or closed circuit television system with several voice-activated cameras and monitors in the courthouse and the federal prison. The system is designed to allow public viewing as well as confidential attorney-client conferences. It is augmented by fax machines for transmitting documents. See United States District Court, District of Arizona, Video Court Proceedings Committee Report and Recommendations (September, 1987)
3
The district court stated orally:
The issue specifically is ... does an arraignment conducted before the magistrate, where the defendant is present by means of audiovisual interactive technology, for the purpose of entering a not guilty plea, constitute a violation of Rule 43, F.R. Criminal Procedures, or the Fifth and Sixth Amendments of the United States Constitution.
And this Court rules that review of the record and the arguments presented clearly show that there are no violations. And the motion is denied.
Reporter's Transcript of Proceedings at 50, United States v. Valenzuela-Gonzalez, No. CR-90-243-PHX-PGR (D.Ariz. July 18, 1990).
4
Our order of July 27, 1990, reads, in pertinent part:
The district court is directed to arraign petitioner face to face with the petitioner physically present in the courtroom. See Fed.R.Crim.P. 43.
5
28 U.S.C. Sec. 1651(a) provides:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.
6
We therefore exercise our power
to determine all the issues presented by the writ of mandamus ... and to formulate the necessary guidelines in this area.... This is not to say, however, that, following the setting of guidelines in this opinion, any future allegation that the district court was in error in applying these guidelines to a particular case makes mandamus an appropriate remedy. The writ of mandamus is not to be used when 'the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.'
Schlagenhauf, 379 U.S. at 111-12, 85 S.Ct. at 238-40 (quoting Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956)). Readiness to issue the writ may defeat the intent of Congress to reserve for appellate review only final judgments. Kerr, 426 U.S. at 403, 96 S.Ct. at 2124.
7
The use of closed circuit television for taking testimony of child witnesses has been approved by the Supreme Court. Maryland v. Craig, 110 S.Ct. at 3170. So long as the teleconferencing procedure is "functionally equivalent to that accorded live, in-person testimony," it will satisfy constitutional requirements. Id. at 3166. Approval of the procedure is dependent, however, on the state's making an adequate showing of necessity. Id. at 3169
8
Fed.R.Crim.P. 10, "Arraignment," provides:
Arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before being called upon to plead.
9
Fed.R.Crim.P. 43, "Presence of the Defendant," provides:
(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
An exception is provided for misdemeanors. Fed.R.Crim.P. 43(c)(2).
10
A defendant may waive, in writing, the right to appear in person at arraignment. Christopher, 700 F.2d at 1262. But see In re United States, 784 F.2d 1062, 1063 (11th Cir.1986) (no waiver absent good cause)
11
Fed.R.Crim.P. 2 provides:
These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
12
Ariz.R.Crim.P. 14.2 provides:
The defendant shall be arraigned personally before the trial court or by video telephone.
13
At least one commentator has noted that, far from being prejudicial, the procedure can be beneficial to defendants, since it avoids the need to be kept in a "holding cell" awaiting arraignment and allows greater focus by the judge. See Note, The Use of Closed Circuit Television for Conducting Misdemeanor Arraignments in Dade County, Florida, 38 U.Miami L.Rev. 657, 672 (1984)
14
To the extent the plea process is involved, the presence of the defendant may become even more important. Some district courts allow only pleas of not guilty to be entered at arraignment. See M. Hermann, Rules of Criminal Procedure for the United States District Courts 91-92 (1990). This is the procedure anticipated in the District of Arizona. See Transcript, supra, n. 3. Acceptance of a guilty plea at arraignment would raise questions concerning the requirements of Fed.R.Crim.P. 11, which we do not reach here
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775 So.2d 1135 (2000)
Linda THOMAS
v.
SAFEWAY INSURANCE COMPANY.
No. 00-700.
Court of Appeal of Louisiana, Third Circuit.
December 6, 2000.
Keith Michael Borne, Borne, Wilkes & Brady, Lafayette, LA, Counsel for Defendant/Appellant Safeway Insurance Company of Louisiana.
J. Clemille Simon, Attorney at Law, Lafayette, LA, Counsel for Plaintiff/Appellee Linda Thomas.
(Court composed of BILLIE COLOMBARO WOODARD, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.).
SULLIVAN, Judge.
Safeway Insurance Company appeals a judgment declaring that an uninsured motorist (UM) rejection form signed by Linda Thomas was invalid. For the following reasons, we reverse and render.
Facts
Ms. Thomas filed the present suit on November 24, 1997, alleging that her Safeway automobile policy with liability limits of $10,000/$20,000 also provided UM coverage for an accident of September 9, 1996. Safeway later filed a motion for summary judgment, arguing that there was no genuine issue of material fact that Ms. Thomas validly rejected UM coverage when she applied for her policy of insurance on December 29, 1995. Ms. Thomas also filed a motion for summary judgment, arguing that the rejection form she signed was insufficient to provide a "meaningful selection" of UM coverage.
The Safeway form signed by Ms. Thomas provided:
*1136 Pursuant to Louisiana Revised Statute 22:1406(D) and condition 7 of the policy, the applicant does hereby acknowledge and agree to one of the following:
(A) [] Select Uninsured Motorist Coverage with limits equal to those provided under bodily injury liability
(B) [] Select Uninsured Motorist Coverage with limits less than those provided under bodily injury liability $ __________/$__________
(C) [] Reject Uninsured Motorist Coverage completely
I understand and agree that this (acceptance/rejection) of coverage shall be applicable to the policy of insurance on the vehicle described above. Said (acceptance/rejection) shall apply on all future renewals of this policy, and all replacement policies, until I make a written request for additional coverage than is provided in the current policy.
Signature of Applicant (S) Linda Thomas
On the application, a check mark appears in the box for option (C), rejection of UM coverage completely.
After a hearing, the trial court granted Ms. Thomas' motion and denied Safeway's. The trial court accepted Ms. Thomas' argument that the Safeway form was invalid because it did not inform her that UM coverage was mandated by law unless rejected by the insured.
Opinion
At the time Ms. Thomas applied for her Safeway policy, La. R.S. 22:1406(D)(1)(a)(i) required all automobile liability policies issued in this state to include UM coverage "in not less than the limits of bodily injury liability provided by the policy" unless the insured "shall reject in writing, as provided herein, [UM] coverage or selects lower limits." Under La. R.S. 22:1406(D)(1)(a)(ii), such a rejection had to be "made only on a form designed by each insurer" that was signed by the named insured or his legal representative.
Because this statute is to be liberally construed, the statutory exceptions to UM coverage are to be strictly interpreted. Further, the burden of proving a valid waiver of UM coverage is on the insurer. Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992).
In Tugwell, 609 So.2d at 197 (citation omitted), the supreme court defined the terms "informed rejection" and "meaningful selection" as they pertain to UM coverage as follows:
Further, the insurer must place the insured in a position to make an informed rejection of UM coverage. In other words, the form used by the insurance company must give the applicant the opportunity to make a "meaningful selection" from his options provided by the statute: (1) UM coverage equal to bodily injury limits in the policy, (2) UM coverage lower than bodily injury limits in the policy, or (3) no UM coverage.
It is undisputed that the Safeway form signed by Ms. Thomas contains the three options identified in Tugwell. (The second option, selection of UM coverage at lower limits, is not pertinent to this case because Ms. Thomas purchased a minimum limits policy. Daigle v. Authement, 96-1662 (La.4/8/97); 691 So.2d 1213.) However, Ms. Thomas argues that her rejection was not valid because the form she signed did not explain that UM coverage would be automatically provided absent some action on her part.
In Harris v. Safeway Insurance Co., 31,050 (La.App. 2 Cir. 9/23/98); 718 So.2d 619, the second circuit found that the same Safeway form in the present case was sufficient to establish a valid rejection of UM coverage. In so doing, the court rejected an argument similar to Ms. Thomas' that the form should have explained that the law mandates UM coverage unless rejected by the insured, even though the form included the three options outlined in Tugwell:
[T]he intent of LSA-R.S. 22:1406(D) is to provide UM coverage at bodily injury *1137 liability limits when the insured does not reject such coverage or select lower limits. While the Safeway form does not specifically track the statutory language by stating that the insurer is required to provide UM coverage if the insured does not reject such coverage, the form does clearly, unambiguously, and unmistakably set forth the three available options. The UM coverage form is set forth in section 10 of the one-page application and is identified by an obvious heading. The Safeway form provides any insured reading the UM coverage section with an understanding of the choice being made. The insured is required to sign at both the UM coverage section and at the "APPLICANT'S STATEMENT" section of the application. We agree with the trial court, therefore, that the Safeway form was adequate for the purposes intended by the legislature and provided Harris with an opportunity to make a "meaningful selection" or "informed rejection."
Id. at 622-23 (emphasis added).
Because this Safeway form permits the insured to choose one of the three statutory possibilities for UM coverage, we find that it meets the legislative requirements to support a valid waiver. The jurisprudence that Ms. Thomas cites in support of her argument to the contrary is distinguishable because the waiver forms in those cases did not contain the three options of Tugwell. In Savant v. American Central Insurance Co., 98-542 (La.App. 3 Cir. 12/9/98); 725 So.2d 43, writ denied, 99-60 (La.3/12/99); 739 So.2d 202, this court, sitting en banc, invalidated a waiver of UM coverage because that form's only option was to reject UM coverage. We reasoned that the statute's purpose was not served because "the language does not inform [the insured] in any manner whatsoever that UM coverage equal to bodily injury limits in the policy was available." Id. at 45. In Holbrook v. Holliday, 93-1639, p. 5 (La.App. 3 Cir. 6/1/94); 640 So.2d 804, 807, writ denied, 94-1735 (La.10/7/94); 644 So.2d 642, we held a UM rejection form invalid "where it does not list each option as Tugwell mandates ." The form at issue in Wilson v. Underwriters Insurance Co., 99-799 (La.App. 5 Cir. 1/12/00); 751 So.2d 351, writ denied, 00-1039 (La.5/26/00); 762 So.2d 1110, also permitted only one option: rejection. In finding that form insufficient, the fifth circuit stated: "The UM rejection form in the case sub judice does not inform [the insured] of the option to exercise the statutorily mandated coverage, thus the form is defective." Id. at 354.
As the supreme court explained in Daigle, 691 So.2d at 1215, "the question before us is not whether the form ... was the best form that anyone could possibly devise. Rather, the question before us is whether the form ... was adequate for the purpose intended by the legislature." Unlike forms in the cases cited by Ms. Thomas, this form devised by Safeway did inform the insured of the availability of UM coverage equal to the bodily limits of the policy in the first option. We find that this form meets the statutory requirements for a valid waiver as set forth in Tugwell.
Decree
For the above reasons, the judgment of the trial court granting Ms. Thomas' motion for summary judgment is reversed, and judgment is hereby rendered granting summary judgment in favor of Safeway Insurance Company. Costs of this appeal are assessed to Ms. Thomas.
REVERSED AND RENDERED.
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25 So.3d 131 (2010)
STATE of Louisiana
v.
Christopher Cooper ROZANDS.
No. 2009-KK-2561.
Supreme Court of Louisiana.
January 22, 2010.
Denied.
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457 F.2d 572
79 L.R.R.M. (BNA) 2903, 80 L.R.R.M. (BNA) 2918,67 Lab.Cas. P 12,529, 70 Lab.Cas. P 13,283
Charles M. HENDERSON, Regional Director of Region 19 of theNational Labor Relations Board, for and on Behalfof the NATIONAL LABOR RELATIONS BOARD,Petitioner-Appellee,v.INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL50, International Union of Operating EngineersLocal 701, Respondents, InternationalUnion of Operating EngineersLocal 701, Appellant.PACIFIC MARITIME ASSOCIATION, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 26468, 26529.
United States Court of Appeals,Ninth Circuit.
March 14, 1972.As Amended on Denial of Rehearing April 26, 1972.
Don S. Willner (argued), of Willner, Bennett & Leonard, Portland, Or., for International Union of Operating Engineers Local 701.
Glen Bendixsen (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D.C., Norman Leonard, of Gladstein, Leonard, Patsey & Andersen, Richard Ernst, San Francisco, Cal., Raymond J. Conboy, Dale B. Cubbison, N.L.R.B., Don W. Willner, Portland, Or., for National Labor Relations Bd.
Richard Ernst, San Francisco, Cal., for Pacific Maritime Assn.
Before CHAMBERS, KOELSCH, and BROWNING, Circuit Judges.
BROWNING, Circuit Judge:
1
This case raises issues involving the interrelationship of sections 8(b) (4) (D),1 10(k),2 and 10(l)3 of the Labor Management Relations Act.
2
*****
3
* * *
4
*****
5
* * *A dispute arose between the Longshoremen's union and the Operating Engineers' union as to jurisdiction over the work of operating water-borne cranes loading logs aboard vessels at the port of Astoria, Oregon. The jobs were held by members of the Operating Engineers' union. The Longshoremen's union struck, demanding the work for its members. The employers replaced the operating engineers with longshoremen. The Operating Engineers' union then picketed the employers.
6
The Operating Engineers' union filed charges under section 8(b) (4) (D) against the Longshoremen's union. The employers filed section 8(b) (4) (D) charges against the Operating Engineers' union. The Board instituted section 10(k) proceedings to resolve the jurisdictional dispute between the two unions. The Board also sought injunctive relief under section 10(l) against both unions, and such relief was granted. The Operating Engineers' union appealed. We affirmed. Henderson for and on Behalf of National Labor Relations Board v. International Union of Operating Engineers, Local 701, 420 F.2d 802 (9th Cir. 1969).
7
The section 10(k) proceeding resulted in a Board decision awarding the disputed work to employees represented by the Operating Engineers' union. The Board held that the Longshoremen's union was "not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require the Employers to assign the above work to longshoremen represented by it." 181 N.L.R.B. 315, 317 (1970). The Longshoremen's union was given ten days to notify the Board whether it would comply. The Longshoremen's union and the employers petitioned the Board for a stay of its decision. The application was denied.
8
The Longshoremen's union and the employers filed petitions in this court under section 10(f) seeking review of the Board's section 10(k) determination. In an unreported order we dismissed the petitions for lack of jurisdiction, citing NLRB v. International Longshoremen's & Warehousemen's Union, 378 F.2d 33, 35-36 (9th Cir. 1967).
9
In the meantime, following the Board's section 10(k) award of the work to members of the Operating Engineers' union, the Regional Director dismissed the section 8(b) (4) (D) charges against the Operating Engineers' union, and advised the employers that no complaint would be filed on those charges.4 Armed with this dismissal, the Operating Engineers' union moved for dissolution of the section 10(l) injunction as to it. The district court denied the motion, and the Operating Engineers' union appeals in No. 26,468. An amicus brief was filed on behalf of the employers by the Pacific Maritime Association, an employer association.5
10
The employers also filed a petition (No. 26,529) seeking review of the Regional Director's dismissal of the section 8(b) (4) (D) charges against the Operating Engineers' union, and the Board's refusal to stay its section 10(k) determination awarding the work to members of the Operating Engineers' union. The Board has moved to dismiss the employers' petition on the ground that neither of these administrative actions is subject to judicial review.
11
The basic issue we are asked to decide is whether a union whose members are awarded disputed work in a section 10(k) proceeding remains subject to a section 10(l) injunction unless and until the opposing union has voluntarily acceded to the Board's award or the award has been confirmed by judicial review. The Operating Engineers' union insists that when the section 10(k) award is made and section 8(b) (4) (D) charges against the prevailing union are dismissed, the section 10(l) injunction against that union terminates and it may use economic pressure to enforce the section 10(k) award. The employers argue that voluntary compliance or judicial review must precede economic sanctions.
12
We resolve this central issue in favor of the Operating Engineers' union in light of the Supreme Court's reasoning in Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union, 397 U.S. 655, 90 S.Ct. 1299, 25 L.Ed.2d 637 (1970), and NLRB v. Plasterers' Local Union, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971)-the latter announced after the submission of these cases for decision in this court.
13
In Sears the Supreme Court held that a section 10(l) injunction terminates when the Board decides the underlying unfair labor practice charge. The Court rejected the argument that such an injunction "would remain in effect until the Board's order [was] either enforced or denied enforcement by the Court of Appeals." 397 U.S. at 658, 90 S.Ct. at 1301. With respect to a situation like that in this case, the Court said, "[w]here the Board ultimately finds no unfair labor practice, it would clearly be contrary to the policies of the Act to permit a district court injunction to remain in effect pending Court of Appeals review of the District Court's action" (659, 90 S.Ct. at 1301).
14
The employers argue that Sears is inapplicable to this case. They point out that the charge in Sears was secondary picketing in violation of section 8(b) (4) (B) rather than a jurisdictional strike in violation of section 8(b) (4) (D), and therefore there was no section 10(k) proceeding in Sears. They contend that where the charge is under section 8(b) (4) (D) and section 10(k) is invoked, as here, the "final adjudication of the Board" under section 10(l) is defined by the last sentence of section 10(k). See note 2. Admittedly, there has been neither a voluntary adjustment of the dispute nor compliance with the section 10(k) award in this case. Accordingly, the employers argue, their unfair labor practice charge against the Operating Engineers' union should not have been dismissed, and there has been no lawful "final adjudication by the Board" within the meaning of section 10(l). They conclude that the district court properly refused to vacate the section 10(l) injunction.
15
The Supreme Court rejected the premises of this argument in NLRB v. Plasterers' Local Union, supra. The Court stated that when the striking union "wins the Sec. 10(k) decision and the employer does not comply, the employer's Sec. 8(b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed." 404 U.S. at 127, 92 S.Ct. at 367. This dismissal, the Court noted, "will not be pursuant to the language of Sec. 10(k) directing dismissal upon 'compliance by the parties to the dispute with the decision of the Board' but rather under Sec. 8(b) (4) (D) because the 'employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work."' Id. at 127 n. 19, 92 S.Ct. at 367.
16
Thus, dismissal of the section 8(b) (4) (D) charge against the Operating Engineers' union was not contingent upon voluntary adjustment of the underlying dispute or compliance with the Board's section 10(k) decision, as the employers contend. Rather, dismissal was required because the employers' disregard of the section 10(k) determination was within the exception to section 8(b) (4) (D), and therefore a strike against the employers was no longer a violation of that section.
17
Section 10(l) was not mentioned in Plasterers' Local Union, but the Court's logic and language convinces us that dismissal of the section 8(b) (4) (D) claim against the union prevailing in the section 10(k) proceeding requires termination of any section 10(l) injunction against that union, leaving it free to engage in economic coercion to obtain the jobs for its members.
The Court said:
18
"Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the Sec. 10(k) decision, but both will lose their Sec. 8(b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other way to implement the Board's Sec. 10(k) decision." 404 U.S. at 127, 92 S.Ct. at 367.6
19
This language contemplates that the union prevailing in the section 10(k) proceeding shall have the immediate right to picket a noncomplying employer. To preclude such self-help by continuing a section 10(l) injunction against the union awarded the disputed work would be inconsistent with the "design of the Act."7
20
Conversely, the section 8(b) (4) (D) charge against the Longshoremen's union remained alive because of their refusal to comply with the work assignment award. The section 10(l) injunction therefore continued against the Longshoremen's union until the Board's final adjudication of the charges against it. See note 4.
21
This result is also consistent with the statutory purpose of the Act. The principal object of section 10(k) was to settle jurisdictional disputes quickly and permanently by encouraging voluntary settlement or compliance. NLRB v. Radio and Television Broadcast Engineers (CBS), 364 U.S. 573, 576-577, 81 S.Ct. 330, 5 L.Ed.2d 302 (1961); see Plasterers Local Union No. 79, Operative Plasterers' and Cement Masons' International Association, A.F.L.-C.I.O. v. NLRB, 142 U.S.App.D.C. 146, 440 F.2d 174, 182-184 (D.C. Cir. 1970), rev'd on other grounds, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971); NLRB v. United Association of Journeymen, 242 F.2d 722, 725-726 (3d Cir. 1957). See 2 Legislative History of the Labor Management Relations Act, 1947, at 983 (1948). There would be little incentive for the Longshoremen's union either to agree to a settlement or comply with the Board's order if its refusal would leave its members in possession of the jobs and the rival union barred from picketing. Under the employers' argument, this delay would continue until the Board completed the section 8(b) (4) (D) proceedings against the Longshoremen's union, a Court of Appeals reviewed the record and entered an enforcement order, and, perhaps, until a contempt proceeding was instituted and completed in the Court of Appeals.
22
On the other hand, permitting the prevailing Operating Engineers' union to bring economic pressure on the employers while at the same time protecting the employers from similar pressure from the Longshoremen's union would encourage the latter to seek an early accommodation. Failing that, it would at least allow the employers to assign the jobs to the employees presumptively entitled to those jobs, free of the threat of coercive section 8(b) (4) (D) reprisals from the Longshoremen's union.
23
This would serve one of the principal purposes of these provisions, namely, protection of a neutral employer from loss due to conflicting demands by competing unions that the employer is powerless to satisfy. NLRB v. Radio and Television Broadcast Engineers (CBS), supra, 364 U.S. at 580-581, 81 S.Ct. 330; Plasterers' Local Union No. 79, Operative Plasterers' and Cement Masons' International Association A.F.L.-C.I.O. v. NLRB, supra, 440 F.2d at 183; NLRB v. Local 1291, International Longshoremen's Association, 345 F.2d 4, 10 (3d Cir. 1965). See H.R.Rep. No. 245, 80th Cong., 1st Sess. 23-24 (1947); 1 Legislative History of the Labor Management Relations Act, 1947, at 314-15.
24
To recapitulate, the "final adjudication" of the dispute as to the Operating Engineers' union occurred when the work was awarded to its members in the section 10(k) proceeding; dismissal of the unfair labor practice charges then followed as a matter of course. NLRB v. Plasterers' Union, supra, 404 U.S. at 116, 92 S.Ct. 360. The section 10(l) injunction ceased to be effective as to that union by the terms of the statute, since there was a "final adjudication of the Board with respect to [the] matter." Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union, supra, 397 U.S. at 658-659, 90 S.Ct. at 1301. Court of Appeals review was not necessary since the statute refers to final adjudication "of the Board." Id. at 658, 90 S.Ct. 1299. The Operating Engineers' union was free to enforce the section 10(k) award by economic coercion because such pressure would be pursuant to an "order or certification of the Board" and thus not in violation of section 8(b) (4) (D). NLRB v. Plasterers' Local Union, supra, 404 U.S. at 127 n. 19, 92 S.Ct. at 367.
25
The district court therefore erred in denying the motion of the Operating Engineers' union to eliminate that union from the section 10(l) injunction. The Board has since decided the section 8(b) (4) (D) proceedings against the Longshoremen's union (see note 4). By the terms of the statute, the injunction has expired as to that union as well. See Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile and Resilient Floor Covering Layers, Local Union, supra, 397 U.S. at 657, 90 S.Ct. 1299, 25 L.Ed.2d 637.
26
Turning to No. 26,529, we conclude that we are without jurisdiction to review either the refusal of the Board to stay its section 10(k) determination, or the dismissal of the employers' charges against the Operating Engineers' union.
27
As noted earlier, this court has dismissed the petition of the employers to review the section 10(k) award for want of jurisdiction on the authority of NLRB v. International Longshoremen's & Warehousemen's Union, 378 F.2d 33, 35-36 (9th Cir. 1967). See also NLRB v. Local 991, International Longshoremen's Association, 332 F.2d 66, 70-71 (5th Cir. 1964). Under these authorities the section 10(k) award is an interlocutory order reviewable only in the course of review of any subsequent final order under section 8(b) (4) (D). Thus, to countenance immediate review of an order denying a stay of such a section 10(k) award would doubly offend the deeply entrenched policy against premature and piecemeal appellate proceedings.
28
The employers urge countervailing considerations in favor of requiring judicial confirmation of the Board's section 10(k) award before it becomes binding, emphasizing that the Board should not rely on economic sanctions by the prevailing union in the section 10(k) proceeding to enforce the Board's order. Their position, however, cannot withstand the Supreme Court's analysis in Sears and Plasterers' Union, discussed above.
29
The employers' effort to obtain review of the dismissal of charges against the Operating Engineers' union must also be rejected.
30
We held in NLRB v. Lewis, 249 F.2d 832, 838 (9th Cir. 1957), aff'd 357 U.S. 10, 15-16, 78 S.Ct. 1029, 2 L.Ed.2d 1103 (1958), that "[b]y virtue of Sec. 3(d) . . . the General Counsel['s] . . . decision on whether to issue a complaint charging an unfair labor practice is final and is not reviewable by either the Board or the courts." See also Department & Specialty Store Employees Union, Local 1265, R.C.I.A., A.F.L.-C.I.O. v. Brown, 284 F.2d 619, 626 (9th Cir. 1960); California Association of Employees v. Building & Construction Trades Council, 178 F.2d 175, 178 n.3 (9th Cir. 1949).8 The Supreme Court confirmed this view in Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967), stating, "the Board's General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint."9
31
In No. 26468 the injunction is vacated as moot. In No. 26529 the petition for review is dismissed for want of jurisdiction.
1
Section 8(b) (4) (D) of the Act, 29 U.S.C. Sec. 158, reads in part:
"(b) It shall be an unfair labor practice for a labor organization or its agents-
(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is-
(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work."
2
Section 10(k) of the Act, 29 U.S.C. Sec. 160(k), reads:
"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."
3
Section 10(l) of the Act, 29 U.S.C. Sec. 160(l) reads in part:
"Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (A), (B), or (C) of section 158(b) of this title, or section 158(e) of this title or section 158(b) (7) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law: * * * In situations where such relief is appropriate the procedure specified herein shall apply to charges with respect to section 158(b) (4) (D) of this title."
4
Since the Longshoremen's union had not advised the Board that it would comply with the Sec. 10(k) determination, the Regional Director also filed a complaint under Sec. 8(b) (4) (D) against the Longshoremen's union. While these appeals were pending the Board issued its decision and order in the unfair labor practice proceeding against the Longshoremen's union. The Board confirmed the right to the disputed work of the employees represented by the Operating Engineers' union, and held that the Longshoremen's union had violated Sec. 8(b) (4) (D) by stopping work to force the employers to assign the work to members of that union. 193 N.L.R.B. No. 37 (1971)
5
The Pacific Maritime Association filed briefs on behalf of the employers in both appeals. For the sake of simplicity we describe their position as that of the "employers."
The Longshoremen's union filed an amicus curiae brief in No. 26,468.
6
See also Atleson, The National Labor Relations Board and Jurisdictional Disputes-The Aftermath of CBS, 53 Geo. L.J. 93, 142-45 (1964); Mann & Husband, Private and Governmental Plans for the Adjustment of Interunion Disputes: Work Assignment Conflict to 1949, 13 Stan.L.Rev. 5, 44-48 (1960); Farmer & Powers, The Role of the National Labor Relations Board in Resolving Jurisdictional Disputes, 46 U.Va.L.Rev. 660, 682-84 (1960)
7
This conclusion may rest in part upon the consideration that the Sec. 10(k) award removes any "reasonable cause to believe [the Sec. 8(b) (4) (D)] charge is true and that a complaint should issue" against the prevailing union, and thereby removes the statutory basis for a Sec. 10(l) injunction against that union. See note 3
8
Other Courts of Appeals have adhered to this view. See, e. g., Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir. 1948); United Elec. Contractors' Ass'n v. Ordman, 366 F.2d 776 (2d Cir. 1966); Contractors' Ass'n of Philadelphia & Eastern Pennsylvania v. NLRB, 295 F.2d 526 (3d Cir. 1961); Wellington Mill Div., West Point Mfg. Co. v. NLRB, 330 F.2d 579, 591 (4th Cir. 1964); NLRB v. Bar-Brook Mfg. Co., 220 F.2d 832, 834 (5th Cir. 1955); Mayer v. Ordman, 391 F.2d 889, 892 (6th Cir. 1968); Balanyi v. Local 1031, I.B.E.W., 374 F.2d 723, 726 (7th Cir. 1967); General Drivers, etc. v. NLRB, 179 F.2d 492, 494-495 (10th Cir. 1950); Hourihan v. NLRB, 91 U.S.App.D.C. 316, 201 F.2d 187, 188 (1952)
9
The principle of nonreviewability of the General Counsel's dismissal of Sec. 8(b) (4) (D) charges applies whether or not the Board has commenced proceedings under Sec. 10(k). See generally Manhattan Constr. Co. v. NLRB, 198 F.2d 320, 321-322 (10th Cir. 1952)
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458 F.Supp. 223 (1978)
In re GARRISON DIVERSION UNIT LITIGATION.
No. 348.
Judicial Panel on Multidistrict Litigation.
September 15, 1978.
OPINION AND ORDER
Before JOHN MINOR WISDOM, Chairman, and EDWARD WEINFELD, EDWIN A. ROBSON, STANLEY A. WEIGEL, ANDREW A. CAFFREY[*], and ROY W. HARPER, Judges of the Panel.
PER CURIAM.
This litigation consists of two actions pending in two districts, one each in the District of the District of Columbia and the District of North Dakota.
Both actions involve the Garrison Diversion Unit (Garrison), a federal water project presently structured by Congress to provide irrigation service to 250,000 acres in North Dakota. The project is also designed to provide several recreational areas, water service for fourteen cities and towns, and a 146,530 acre wildlife plan to mitigate wildlife habitat losses resulting from project construction.
The District of Columbia action was brought in May, 1976, by the National Audubon Society, Inc. (Audubon) against the Secretary of the U. S. Department of Interior and the Commissioner of the U. S. Bureau of Reclamation. The State of North Dakota and the Garrison Diversion Conservancy District (the District) have intervened as defendants. Audubon seeks a halt to further construction on Garrison claiming that defendants have violated the National Environmental Policy Act, the Migratory Bird Treaty, the Migratory Bird Treaty Act, and the Fish and Wildlife Coordination Act.
*224 On May 11, 1977, Audubon and the federal defendants in the District of Columbia action entered into a stipulation under which the United States, with minor exceptions, agreed to cease further construction and development of Garrison pending completion of a comprehensive supplementary environmental impact statement. Upon court approval of the stipulation, all pending motions and responses thereto were withdrawn without prejudice, but the pleadings remained filed. The signatories agreed not to take any action to attempt to nullify the stipulation, but nothing in their agreement precluded any party from taking any position relevant to Garrison as deemed appropriate. In the event any portion of the agreement became unenforceable, was violated, or was nullified, "the other party" could abrogate the entire agreement or any portion of it. North Dakota and the District expressly declined to be parties to the stipulation.
Apparently in response to the stipulation in the District of Columbia action, North Dakota and the District filed an action in North Dakota state court on June 16, 1977. That action was subsequently removed to the District of North Dakota. The Secretary of the U. S. Department of Interior, the Commissioner of the U. S. Bureau of Reclamation, the Project Manager of Garrison, and the Director of the U. S. Office of Management and Budget are defendants in the North Dakota action. These defendants are charged with 1) violating, inter alia, the Flood Control Act of 1944, the Garrison Diversion Unit Reauthorization Act of August 5, 1965, and the Congressional Budget and Impoundment Act of 1974; and 2) breach of various contracts entered into in connection with the project.
Pursuant to 28 U.S.C. § 1407, the United States moves the Panel to transfer the North Dakota action to the District of the District of Columbia for coordinated or consolidated pretrial proceedings with the action pending there. Audubon supports the United States' motion. North Dakota and the District oppose transfer.[1]
We conclude that transfer under Section 1407 would not necessarily serve the convenience of the parties and witnesses or promote the just and efficient conduct of this litigation and, accordingly, we deny the motion.
The United States relies on the Panel's decision in In re Cross-Florida Barge Canal Litigation, 329 F.Supp. 543, (Jud.Pan.Mult. Lit.1971), to demonstrate the presence of common questions of fact sufficient to justify transfer in the present litigation. In the Florida litigation, the Environmental Defense Fund brought an action in the District of the District of Columbia challenging a canal project on grounds of non-compliance with the National Environmental Policy Act and other statutes. Before the court had granted plaintiff a preliminary injunction, the President ordered the suspension of further construction of the Florida canal. The Canal Authority then brought an action in the Middle District of Florida alleging that the Presidential order was void and of no effect and that the President could not override the will of Congress as expressed in the authorization of the canal project. The Panel, in ordering transfer, found that there were "many ecological questions of fact which will be common to both actions." Id. at 544. The United States contends that, as in the Florida litigation, environmental questions will be shared by both actions in the present litigation. Further, the United States argues that Garrison's statutory authorizations and the facts upon which they are predicated, along with questions surrounding the extent of North Dakota's fulfillment of its contractual obligations, will also be matters common to both actions. The United States thus argues that centralization will be necessary to avoid duplicative discovery.
The United States also raises the prospect of inconsistent orders issued by the two district courts with respect to the construction of Garrison as a further justification for transfer under Section 1407. Similarly, *225 Audubon emphasizes the desirability of having one court determine the effect that the pendency of the North Dakota action has on the stipulation in the District of Columbia action, and vice versa.
We find these arguments unpersuasive. Only two actions are involved here. While we recognize the existence of common questions of fact between these two actions, we note that, in order to justify transfer under Section 1407 when only a minimal number of actions is involved, the movant is under a heavy burden to show that those common questions of fact are sufficiently complex and that the accompanying discovery will be so time-consuming as to further the purposes of Section 1407. See In re Scotch Whiskey Antitrust Litigation, 299 F.Supp. 543, 544 (Jud.Pan.Mult. Lit.1969). We rule that movant has not met that burden. This conclusion is distinguishable from our holding in In re Cross-Florida Barge Canal Litigation, supra, because 1) in that litigation all parties agreed upon the appropriateness of transfer; and 2) more discovery and other pretrial proceedings have occurred in the District of Columbia action now before us than had occurred in either of the actions involved in the prior litigation for example, all parties in the present litigation agree that extensive discovery by both Audubon and the federal government has occurred in the District of Columbia action, and the parties to that action have filed numerous briefs and voluminous exhibits relating to the merits of the controversy.
Additionally, we observe that suitable alternatives to Section 1407 transfer are available to the parties in this litigation. For example, discovery that has already transpired in the District of Columbia action may be made applicable to the North Dakota action either by agreement of the parties or by any party requesting the North Dakota court to order all parties to show cause why that discovery should not be made applicable. Also, notices for any future depositions could be filed in both actions, thereby making the depositions applicable, in each action. See In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litigation, 446 F.Supp. 242, 244 (Jud.Pan. Mult.Lit.1978). See also Manual for Complex Litigation, Parts I and II, § 3.11 (rev. ed. 1977).
Also, consultation and cooperation between the two concerned district courts, if viewed appropriate by those courts, coupled with the cooperation of the parties, would be sufficient to minimize the possibility of conflicting pretrial rulings. See In re Texas Instruments, Inc. Employment Practices Litigation, 441 F.Supp. 928, 929 (Jud.Pan. Mult.Lit.1977).
IT IS THEREFORE ORDERED that the motion for transfer under Section 1407 concerning the actions listed on the following Schedule A be, and the same hereby is, DENIED.
SCHEDULE A Docket No. 348
District of District of Columbia
National Audubon Society v. Andrus, Civil Action
et al. No. 76-0943
District of North Dakota
State of North Dakota, et al. v. Civil Action
Andrus et al. No. A77-1048
NOTES
[*] Judge Caffrey took no part in the decision of this matter.
[1] All parties waived oral argument and, therefore, this matter was submitted for decision on the basis of the papers filed. See Rule 14, R.P.J.P.M.L., 78 F.R.D. 561, 572 (1978).
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595 F.2d 1215
U. S.v.Kelner
No. 78-2228
United States Court of Appeals, Third Circuit
3/23/79
1
E.D.Pa.
AFFIRMED
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80 So.3d 188 (2010)
ALABAMA INSURANCE GUARANTY ASSOCIATION
v.
ASSOCIATION OF GENERAL CONTRACTORS SELF-INSURER'S FUND.
Alabama Insurance Guaranty Association
v.
Association of General Contractors Self-Insurer's Fund.
1060495 and 1071194.
Supreme Court of Alabama.
November 24, 2010.
Rehearing Denied (as to No. 1060495) August 5, 2011.
Rehearing Denied (as to No. 1071194) September 23, 2011.
*189 Howard K. Glick of Spain & Gillon, L.L.C., Birmingham, for appellant.
J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellee.
MURDOCK, Justice.
The Alabama Insurance Guaranty Association ("the AIGA") appeals from a summary judgment entered by the Montgomery Circuit Court against the AIGA and in favor of the Association of General Contractors Self-Insurer's Fund ("the AGCSF").[1] The issue on appeal is whether the AGCSF may recover from the AIGA based upon a claim arising out of an insurance policy ("the Reliance policy") issued by Reliance National Indemnity Company ("Reliance"). We hold that it may, and we affirm.
I. Facts and Procedural History
A. General
The AGCSF is a group of employers who, through their participation in *190 AGCSF, have qualified as "self-insurers" under Ala.Code 1975, § 25-5-9(a), a part of the Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq. Section 25-5-9(a) states:
"The Director of Industrial Relations may, under such rules and regulations as he may prescribe, permit two or more employers, as such term is defined in Section 25-5-1, to enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers under this chapter. Each employer member of such approved group shall be authorized to operate as a self-insurer under this chapter."
The AIGA is "a nonprofit unincorporated legal entity," Ala.Code 1975, § 27-42-6, created pursuant to the Alabama Insurance Guaranty Association Act, Ala.Code 1975, § 27-42-1 et seq. ("the Guaranty Act"). The legislature enacted the Guaranty Act and created the AIGA
"to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payments and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies and to provide an association to assess the cost of such protection among insurers."
Ala.Code 1975, § 27-42-2.
As it existed at the time the claim arose in the present case, the Guaranty Act defined a "covered claim" as
"[a]n unpaid claim, including one of unearned premiums, which arises out of, and is within the coverage and not in excess of, the applicable limits of an insurance policy to which this chapter applies, issued by an insurer, if such insurer becomes an insolvent insurer after January 1, 1981, and (i) the claimant or insured is a resident of this state at the time of the insured event; or (ii) the property from which the claim arises is permanently located in this state. `Covered claim' shall not include any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise."[2]
Ala.Code 1975, § 27-42-5(4) (emphasis added). Section 27-42-3, Ala.Code 1975, states that the Guaranty Act "shall apply to all kinds of direct insurance, except life, annuities, disability, accident and health, title, surety, credit, mortgage guaranty and ocean marine insurance." The parties' dispute primarily concerns (1) whether the AGCSF's claim under the Reliance policy and against the AIGA concerns an amount due an "insurer" or an "insurance pool," as those terms are used in § 27-42-5(4), and (2) whether the Reliance policy is one for direct insurance, i.e., an "insurance policy to which [the Guaranty Act] applies."
Based upon an affidavit from Joseph S. Ammons, chief counsel for the Workers' Compensation Division of the Alabama Department of Industrial Relations, "[s]ince January 1, 1982, [the AGCSF] has been recognized by the State of Alabama as a group of employers that have pooled their *191 resources together to meet their liabilities to injured employees for the purpose of qualifying as self-insurers pursuant to the [Workers' Compensation Act]."[3]
Also, according to an affidavit from Don Jones, the administrator of the AGCSF,
"[i]f an employer wants to join [the AGCSF], it and [the AGCSF] must enter into a participation agreement. Pursuant to this participation agreement, an employer is assessed contributions for its membership in [the AGCSF]. The members' contributions are placed in a fund and are available for the payment of workers compensation claims made by the injured employees of [the AGCSF]'s members. According to the participation agreement which each member enters into, each member remains jointly and severally liable for any payments above the sum of the members contributions. Each member retains the financial risk of loss for those claims filed by the member's employees and also for the claims filed by the employees of the other members of [the AGCSF]."
(References to exhibit's omitted and emphasis added.) See Ala. Admin. Code (Department of Industrial Relations), r. 480-5-3-.06 et seq. (regulatory requirements for self-insured-employer groups). It does not appear that the participation agreement between the AGCSF and the member at issue in the present case, M & D Power Construction Co. ("M & D Power"), was included in the parties' submissions to the trial court.
The explanation of how the AGCSF operates provided by Jones's affidavit is consistent with the amended and restated bylaws of the AGCSF ("the bylaws"). The bylaws require the AGCSF to establish a "claims-fund account" to hold members' contributions and from which to pay workers' compensation claims. The bylaws further state:
"The [AGCSF] and its members shall be jointly and severally liable to assume and discharge, by payment, any claim due to be paid by the [AGCSF], any settlement approved by the [AGCSF,] and any judgment under the Alabama Workers' Compensation Act against the [AGCSF] or any of its members."
According to an affidavit from David Parsons, the deputy commissioner for the Alabama Department of Insurance, so far as the Department of Insurance is concerned, "[s]elf-insured workers' compensation groups are not `insurers' under the laws pertaining to insurance in the State of Alabama and these groups are not regulated by the Alabama Department of Insurance." See Ala.Code 1975, § 27-1-2(2) (defining an "insurer" as "[e]very person engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance" (emphasis added)) and § 27-1-2(1) (defining "insurance" as "[a] contract whereby one undertakes to indemnify another or pay or provide a specified amount or benefit upon determinable contingencies"). Consistent with Parsons's affidavit, the bylaws state that the AGCSF "is not an insurance company and does not sell insurance." Of course, such a *192 statement is not determinative of whether the law deems the AGCSF to be an insurer or to issue insurance contracts. See Schoepflin v. Tender Loving Care Corp., 631 So.2d 909, 912 (Ala.1993) ("`[A] company may be found to be engaged in an insurance business even though it expressly disclaims any intention to sell insurance.'" (quoting 43 Am.Jur.2d Insurance § 4 (1982))).[4]
In 1987, several § 25-5-9(a) self-insured-employer groups, including the AGCSF, established the Alabama Reinsurance Trust Fund ("the Reinsurance Trust Fund") pursuant to Ala.Code 1975, § 25-5-9(b). Section 25-5-9(b) provides that "[t]wo or more employer groups as described in [§ 25-5-9](a) ... may enter into agreements to pool their liabilities under this chapter for the purpose of providing excess coverage above the self-insured retention levels maintained by the individual employer groups." (Emphasis added.) See generally Black's Law Dictionary 1391 (8th ed.2004) (defining "self-insured retention" as "[t]he amount of an otherwise-covered loss that is not covered by an insurance policy and that usu[ally] must be paid before the insurer will pay benefits").
The trust indenture for the Reinsurance Trust Fund provides for the trustees of that fund to issue an instrument referred to as a "Policy" to each participating self-insured-employer group. The trust indenture defines "Policy" as "[a] schedule which is issued by the Trustees to a [self-insured-employer group] and which sets forth the rights with respect to excess coverage and the responsibilities (including, without limitation, premium commitments) of such [self-insured-employer group]." The record does not contain a copy of the "policy" the Reinsurance Trust Fund issued to the AGCSF, and the specific terms of the policy are not discussed in any of the pleadings, motions, or briefs included in the record on appeal.
Section 4.01 of the trust indenture for the Reinsurance Trust Fund states that
"[e]ach [self-insured-employer group] shall make all contributions, or premium payments, to the Trust Fund required by the Policy issued to it within the time required by said Policy. Each [self-insured-employer group] shall also make timely payment to the Trust Fund of such assessment or assessments as may be made by the Trustees from time to time in accordance with the terms of the By-Laws."
Also, § 2.01 of the trust indenture states:
"The Trust is intended to serve as a vehicle for the pooling of the liabilities of the [self-insured-employer groups] under the Alabama Workmen's Compensation Act so as to provide the [self-insured-employer groups] with excess coverage above their respective self insured retention levels, and in furtherance of such purpose, the Trust shall (I) serve as a repository for operation and administration of amounts paid to the Trust by the [self-insured-employer groups] in accordance with the provisions of their respective Policies and the terms hereof and of claims made by the [self-insured-employer groups] pursuant to their respective Policies and the terms hereof; ... (iii) provide for the payment of all of the liabilities, debts and obligations contingent or otherwise in respect of the Trust Fund; ... (vi) provide for the distribution to [self-insured-employer groups] of their respective interests in all distributable property *193 comprising the Trust Fund and of any amounts payable under the Policies; and (vii) hold a portion of the property comprising the Trust Fund for such additional claims or liabilities as the Trustees may determine."
(Emphasis added.) Further, the trust indenture authorizes the trustees to "obtain appropriate insurance, or reinsurance, from such insurance carrier or carriers as the Trustees may from time to time deem appropriate." (Emphasis added.)
According to an affidavit from Boyd Kelly, the administrator of the Reinsurance Trust Fund,
"[i]n 1998, the [Reinsurance Trust Fund], acting as a broker for its members [i.e., the various self-insured-employer groups], sought to secure an insurance policy for its members with Reliance National Indemnity Company for the purpose of providing `excess coverage above the self insured retention levels maintained by each member.'... Each of the member funds reimbursed the [Reinsurance Trust Fund] for premium paid that was attributable to each fund based on that fund's limits of coverage and its retention amount.... The Reliance policy agreed to reimburse each [Reinsurance Trust Fund] member[ ] when its losses had exceeded an amount called the retention level up to a specific amount which varied according to the member self-insured fund."
(Emphasis added.)
A document titled "Certificate Of Reinsurance" issued in relation to the Reliance policy states, at the outset: "IN CONSIDERATION OF THE PAYMENT OF THE REINSURANCE PREMIUM AND SUBJECT TO THE TERMS AND CONDITIONS CONTAINED HEREIN, WHICH ARE MADE PART OF THIS CERTIFICATE, RELIANCE NATIONAL INDEMNITY COMPANY (HEREAFTER CALLED THE REINSURER) DOES HEREBY REINSURE" the Reinsurance Trust Fund. (Capitalization in original.) The certificate continues:
"COVERAGE: To indemnify [the Reinsurance Trust Fund] for loss paid or payable as a result of:
"(A) compensation and other benefit payments required of the Reassured[5] by the Workers Compensation Law of any state;
"and
"(B) Sums that [the Reinsurance Trust Fund] shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained in the United States of America, its territories or possessions, or Canada."
Further, the certificate states that the Reinsurance Trust Fund would "retain for its own account or for that of its treaty reinsurer, if applicable," "0% OF WORKERS' COMPENSATION" and "0% OF EMPLOYER'S LIABILITY." (Capitalization in original.)
The certificate reflects a separate liability limit for each of the self-insured-employer groups that participated in the Reinsurance Trust Fund. As to the liability limit for claims in relation to the AGCSF, Reliance "agree[d] to indemnify the [Reinsurance Trust Fund]" for:
"A. WORKERS COMPENSATION 100% OF $1,000,000 EACH ACCIDENT AND EACH EMPLOYESS [sic] AS RESPECTS OCCUPATIONAL DISEASE EXCESS OF A $400,0000 *194 [sic] S.I.R.[[6]] EACH ACCIDENT AND EACH EMPLOYESS [sic] AS RESPECTS OCCUPATIONAL DISEASE. "B. EMPLOYERS LIABILITY 100% OF $1,000,000 EACH ACCIDENT AND EACH EMPLOYESS [sic] AS RESPECTS OCCUPATIONAL DISEASE EXCESS OF A $400,0000 [sic] S.I.R. EACH ACCIDENT AND EACH EMPLOYESS [sic] AS RESPECTS OCCUPATIONAL DISEASE."
(Capitalization in original.) The "General Conditions" included in the certificate state:
"1. The Reinsurer agrees to indemnify [the Reinsurance Trust Fund] against losses or damages which [the Reinsurance Trust Fund] is legally obligated to pay with respect to which insurance is afforded during the term of this Certificate under this policy reinsured, subject to the reinsurance limits and coverage shown in the Declarations. The Reinsurer shall not Indemnify the [Reinsurance Trust Fund] for liability beyond circumscribed policy provisions, including but not limited to punitive exemplary, consequential or compensatory damages resulting from an action of an insured or assignee against the Company.... Nothing contained herein shall in any manner create any obligation of the Reinsurer or [e]stablish any rights against the Reinsurer in favor of the direct insured or any third parties or any persons not parties to this Certificate of Reinsurance.[7]
"2. [The Reinsurance Trust Fund] shall settle all claims under its policy in accordance with the terms and conditions thereof. If the Reinsurance hereunder is pro rata, the Reinsurer shall be liable for its pro rata proportion of settlements made by the [the Reinsurance Trust Fund]. If the reinsurance hereunder is excess, the Reinsurer shall be liable for its excess proportion of settlements made by the [the Reinsurance Trust Fund] after deduction of any recoveries from pro rata reinsurance inuring to the benefit of the Reinsurer.[8]
". . . .
"8. The reinsurance provided by this Certificate shall be payable by the Reinsurer directly to [the Reinsurance Trust Fund] ... on the basis of the liability of [the Reinsurance Trust Fund] under the policy reinsured without diminution because *195 of the insolvency of [the Reinsurance Trust Fund]."
It appears from the materials in the record before us that, at all times pertinent to the present case, Reliance, which was apparently a Pennsylvania company, was authorized to do business in the State of Alabama. In May 2001, Reliance was placed into rehabilitation in Pennsylvania because it was allegedly insolvent. In October 2001, a Pennsylvania court declared Reliance insolvent and ordered it liquidated.
B. The Claim at Issue
In May 1999, Paul David Wheeler allegedly suffered an on-the-job injury in Alabama while employed by M & D Power, which is a member of the AGCSF. Wheeler, a resident of Florida when he was injured, filed a workers' compensation claim against M & D Power. Eventually, the AGCSF's payments for Wheeler's workers' compensation claim exceeded $400,000. The AGCSF notified the Reinsurance Trust Fund that it had been required to make payments in excess of its self-insured retention.[9] In May 2002, Kelly, as administrator of the Reinsurance Trust Fund and on behalf of AGCSF, filed a claim with Reliance, and, in light of Reliance's insolvency, with the AIGA.
In June 2004, after realizing that Wheeler was a resident of Florida when he was injured and that he still resided in Florida, the AIGA sent the claim file to the Florida Workers' Compensation Insurance Guaranty Association ("the FWCIGA"),[10] along with a letter that stated, in part:
"This insured claims that they have exceeded their $400,000.00 Self Insured Retention on this claim. There is a question regarding coverage as there appears to be an issue of Reinsurance? The insured will continue this claimant's weekly temporary total disability benefits through and including July 4, 2004. Your contact with the insured is Don Jones[, the administrator of the AGCSF].... Mr. Jones asked that he be contacted immediately to discuss who will be handling this claim file for the [FWCIGA][;] he needs to notify the previous handlers so that they may contact the claimant to advise him of what has taken place with his file.
"... Also, [enclosed] is a folder that Mr. Jones provided with Certificates of Reinsurance for the years of 1999 and 2000. I spoke with Reliance's Ken Parker today and he asked that you contact him regarding coverage issues."
Although the letter elsewhere refers to M & D Power as the insured in regard to Wheeler's claim, the foregoing language clearly is referring to the AGCSF as the "insured which had exceeded its $400,000 self-insured retention."
In a letter dated June 21, 2004, to the AGCSF, the FWCIGA rejected its claim, stating:
"After completing a review of the claim file, I contacted Mr. Kenneth Parker of Reliance National, via email. Mr. Parker informed me that the insured, Alabama Reinsurance Trust Fund, was assumed reinsurance. As a result of *196 this information, I proceeded to discuss the claim further with our Director of Claims, Bob Groves. After my discussions with Mr. Groves, it is our position that we will be unable to provide coverage for this claim under our statute ( [Fla. Stat. § ] 631.904), as it specifically excludes reinsurance."[11]
Neither the AIGA, which had forwarded the claim to the FWCIGA, nor the Reinsurance Trust Fund nor the AGCSF filed a judicial proceeding to contest the FWCIGA's denial of the claim.[12] Instead, the AGCSF requested that the AIGA pay the claim. In a letter dated July 2, 2004, counsel for the AGCSF informed counsel for the AIGA as follows:
"As we discussed in our conversation last month, my client, [the AGCSF,] has filed a claim with [the AIGA]. It is my understanding that [the AIGA] has determined that [the AGCSF]'s claim does not fall within the definition of `covered claim.' This letter is intended to explain [the AGCSF]'s position regarding this coverage question."
The letter continued by discussing the AGCSF's position that the Reliance policy was "direct insurance," not reinsurance, and that it was covered under the provisions of the Guaranty Act. The AGCSF contended that neither it nor the Reinsurance Trust Fund could be considered "insurers" under the exclusion language found in § 27-43-5(4).
After it did not receive an acceptable response from the AIGA, the AGCSF sued the AIGA in the Montgomery Circuit Court. The AGCSF alleged that the AIGA had refused to pay a "covered claim" under the Guaranty Act. It requested that the trial court enter a judgment *197 declaring the "rights, duties, and liabilities of the parties" under the Reliance policy and that it award the AGCSF "a judgment for the amounts owed to [the AGCSF] in this matter with interests and costs." The AIGA filed an answer denying that the AGCSF's claim was a "covered claim" under the Guaranty Act.
The AGCSF filed a motion for a summary judgment, evidentiary materials is support of its motion, and a brief in support thereof, including the affidavits quoted above. The AGCSF asserted that
"[t]he dispute between the parties in this case appears to be whether Reliance's insurance policy constituted `direct insurance' and therefore, a covered claim, or `reinsurance.' Although this precise issue has never been addressed by the courts of this state, this issue has been addressed and decided by the Iowa Supreme Court in a factually similar case, Iowa Contractors Workers' Compensation Group v. Iowa Insurance Guaranty Association, 437 N.W.2d 909 ([Iowa] 1989)."
The AGCSF then went on to discuss the rationale and holding in Iowa Contractors Workers' Compensation Group v. Iowa Insurance Guaranty Ass'n, 437 N.W.2d 909 (Iowa 1989), see discussion infra, and cases from other jurisdictions that allegedly supported its argument that the AIGA was obligated to pay the AGCSF's claim.
The AIGA opposed the AGCSF's summary-judgment motion, and it filed a "cross-motion" for a summary judgment. The AIGA argued that "[i]t was not designed as a safety net for self-insurers like [the AGCSF]." Specifically, the AIGA asserted:
"First, [the AGCSF] has failed to exhaust its claim against [the FWCIGA] pursuant to Ala.Code § 27-42-12(b), which requires that it first look to the [FWCIGA] relative to this workers' compensation claim. Second, the subject certificate of reinsurance is not direct insurance and does not fall within the ambit of the protections afforded under the [Guaranty] Act. See Ala.Code § 27-42-3 (1975); [Alabama Ins. Guar. Ass'n] v. Pierce, 551 So.2d 310, 312-13 (Ala.1989). Finally, even if the certificate of reinsurance qualified as direct insurance, the [Guaranty] Act excludes from its protections amounts due an `insurance pool' or `insurer' such as the [Reinsurance Trust] Fund/[the AGCSF]. Ala.Code § 27-42-5(4)."
In part, the materials the AIGA filed in support of its cross-motion included an affidavit from Joseph C. Manus, assistant vice president for Reliance, which stated, in part, that "Reliance intended for [the Reliance policy] to be a reinsurance policy and does not consider it to be a policy that provides excess workers' compensation coverage." The AIGA also filed a motion to strike a portion of Kelly's affidavit. The AIGA argued that Kelly's statement that "[t]he Reliance policy agreed to reimburse each [Reinsurance Trust Fund] member[ ] when its losses had exceeded an amount called the retention level up to a specific amount which varied according to the member self-insured fund" was
"inconsistent with the Certificate of Reinsurance which clearly shows that the reinsurer agrees to indemnify the [Reinsurance Trust Fund] rather than the particular member of the [Reinsurance Trust Fund]. In other words, the Certificate of Reinsurance agrees to reimburse the [Reinsurance Trust Fund] rather than its particular members."
But see discussion, infra, concerning the parties' subsequent stipulation that Reliance had issued the Reliance policy "to the three members of the [Reinsurance Trust] Fund," one of whom is the AGCSF, and that the policy "provide[d] for reimbursement *198 to the individual members of the [Reinsurance Trust] Fund."[13] The AIGA asserted that the insurance policy at issue was the best evidence of its content.
The AGCSF filed a motion to strike Manus's affidavit because, it said, the affidavit did not reflect the factual basis behind his assertions, particularly whether he was employed by Reliance when it issued the Reliance policy or what involvement he had had in the negotiations concerning the Reliance policy. The AGCSF also filed a response in opposition to the AIGA's cross-motion for a summary judgment.
In November 2006 the trial court entered an order granting the AGCSF's motion for a summary judgment and denying the AIGA's motion. The order states, in part:
"There are only a few issues that must be resolved in this case. First, in its cross-motion for summary judgment, AIGA states that this Court should not entertain this action because AGC[SF] has failed to exhaust its remedies, pursuant to § 27-42-12, Code of Alabama 1975, with the [FWCIGA]. This argument is without merit. The exhaustion of remedies doctrine applies to `administrative remedies.' Talton Communications, Corp. v. Coleman, 665 So.2d 914, 919 (Ala.1995). From the evidence before this Court, it is undisputed that AGC[SF] did pursue and exhaust its administrative remedies with [the FWCIGA] because it submitted a claim with the [the FWCIGA] and that claim was denied by [the FWCIGA]. Although AIGA argues to this Court that AGC[SF] should have pursued a lawsuit against [the FWCIGA] before filing its claim against AIGA, this Court finds that such a lawsuit would have been frivolous and one of the exceptions to the doctrine of exhaustion of remedies is where such action would be futile. Gadsden v. Entrekin, 387 So.2d 829, 833 (Ala.1980). A `covered claim' under both the Florida and Alabama statutes does not include `any amount due any reinsurer, insurer, insurance pool, or underwriting association.' However, the difference between Florida's and Alabama's statutes is that Florida's statute specifically defines an `insurer' as `an *199 insurance carrier or self-insurance fund,' [Fla. Stat. Ann.] § 631.904(5), and Alabama's statute does not define the term `insurer' but its definition of `member insurer' does not include a self-insurance fund. AGC[SF] has done all it had to do to seek recovery from the [FWCIGA] and thus, has satisfied the requirements of § 27-42-12.
"Second, the real dispute between the parties appears to be whether the Reliance policy constitutes `direct insurance' because it is an excess workers compensation policy, or `reinsurance.' In support of its motion for summary judgment, AGC[SF] has submitted the affidavit of Boyd Kelly, the administrator of the [Reinsurance Trust Fund]. Kelly stated in his affidavit that `In 1998, the [Reinsurance Trust Fund], acting as a broker for its members, sought to secure an insurance policy for its members with Reliance National Indemnity Company for the purpose of providing "excess coverage above the self insured retention levels maintained by each member."` In response, AIGA submitted the affidavit of Joseph C. Manus, an Assistant Vice-President for Reliance. In his affidavit, Manus stated that Reliance intended that the policy at issue in this case was reinsurance and not excess insurance. Although Mr. Manus states in his affidavit that he has personal knowledge of the matters contained in his affidavit, he does not state what role he played, if any, at the time this policy was issued. In contrast, Mr. Kelly does relate his intimate knowledge of the events surrounding the securing of the Reliance policy. Although, the policy itself uses the term `reinsurance,' this Court must interpret a policy of insurance according to its substance and not its form. Baker v. Eufaula Concrete Co., 557 So.2d 1228 (Ala.1990); Lavender v. Ball, 267 Ala. 104, 100 So.2d 331 (1958); Moncrief v. Donohoe, 892 So.2d 379 (Ala.Civ.App. 2003); Birmingham News Co., Inc. v. Chamblee, 617 So.2d 689 (Ala.Civ.App. 1993). `[I]t is settled that the nature of a contract is to be determined by the terms and conditions of the contract itself and not by the name given to it. It is not a question of what the parties call a contract, but what they put in the contract, because the law regards substance and not form.' McGuire v. Andre, 259 Ala. 109, 115, 65 So.2d 185, 190 (1953)."
(Emphasis added.) The trial court then discussed the Iowa Supreme Court's decision in Iowa Contractors, concluding that the Reliance policy was not a reinsurance policy. The trial court concluded that neither the Reinsurance Trust Fund nor the AGCSF were insurers and, accordingly, that the AGCSF's claim was a covered claim under the Guaranty Act. It directed the AIGA to "pay all claims submitted by AGC[SF] pursuant to the Reliance policy at issue in this case." The trial court did not specify the amount of damages due the AGCSF from the AIGA, however.
The AIGA appealed, and this Court remanded the case to the trial court for a determination as to damages and for the entry of a final judgment. On remand, the parties stipulated that the AGCSF had made workers' compensation benefit payments to or on behalf of Wheeler in the amount of $907,734.96, that the AGCSF was responsible for paying $400,000 of that amount as self-insured retention, and that the terms of the Reliance policy required Reliance to reimburse the AGCSF for the remaining $507,734.96.[14]They further *200 stipulated that Reliance had issued the Reliance policy "to the three members of the [Reinsurance Trust] Fund," one of whom is the AGCSF, and that the policy "provide[d] for reimbursement to the individual members of the [Reinsurance Trust] Fund for `loss paid or payable as a result of: ... Compensation and other benefit payments required of the Reassured [Insured] by the Workers Compensation Law of any state ...'." Nonetheless, the AIGA maintained its position that AGCSF's claim was not a "covered claim" under the Guaranty Act.
After conducting a hearing on remand and considering the parties' stipulations, the trial court entered a judgment against the AIGA and in favor of the AGCSF in the amount of $507,734.96. The court directed the AIGA to pay all future claims submitted by the AGCSF concerning Wheeler, "up to the $1,000,000 limit of the Reliance policy of insurance."
II. Standard of Review
The standard of review for a ruling on a motion for a summary judgment is well settled:
"`A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present "substantial evidence" creating a genuine issue of material fact"evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo."
Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).
The AIGA does not contend that the summary judgment was improper because there was a material issue of fact. Based on the arguments made by the AIGA, we are presented only with the question whether the trial court erred as to the law or as to the application of the law to the undisputed material facts.
III. Analysis
The AIGA argues that the trial court erred when it concluded that the AGCSF had no further obligation to pursue its claim with the FWCIGA. The AIGA also argues that the trial court erred when it concluded that the claim at issue was a "covered claim" under the Guaranty Act because, according to the AIGA, the AGCSF and the Reinsurance Trust Fund are "insurers" or "insurance pools," and the Reliance policy was reinsurance, not direct insurance.[15]
*201 A. Exhaustion of Remedies
The AIGA contends that the trial court failed to properly apply Ala.Code 1975, § 27-42-12(b), when it concluded that the AGCSF had no further obligation to pursue its claim with the FWCIGA. Section 27-42-12(b) provides:
"(b) Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured except that if it is a first party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property and if it is a workmen's compensation claim, he shall seek recovery first from the association of the residence of the claimant. Any recovery under this chapter shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent."
(Emphasis added.)[16]
The AIGA contends that if the AGCSF's position on the merits is correct (i.e., that its claim is a "covered claim" under the Guaranty Act), then the FWCIGA would be required to pay the claim because the Guaranty Act and the act governing the FWCIGA are "in material respects similar."[17] The AIGA further contends that the last sentence of § 27-42-12(b) means that the AGCSF can seek recovery from the AIGA "[o]nly if there are insufficient benefits available from [the FWCIGA]."
We need not address whether the Guaranty Act and the pertinent statutory provisions governing the FWCIGA are "in material respects similar," though that does not appear to have been the case when the present claim arose. See note 11, supra. Whether the statutes are or are not "in material respects similar," the plain language of § 27-42-12(b) does not support the AIGA's position.
As this Court stated in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998):
"In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
"`"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, *202 and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."`
"Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).... It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers."
(Emphasis added.)
Assuming § 27-42-12(b) is applicable in the present case, it required the AGCSF to first "seek recovery ... from the association of the residence of the claimant," i.e., the FWCIGA. There is no dispute that the AGCSF sought recovery from the FWCIGA and that the FWCIGA denied the AGCSF's claim based on the application of Florida law. The AIGA did not contend to the trial court, and it does not argue to this Court, that the FWCIGA wrongly understood or wrongly applied Florida law when it concluded that the Reliance policy was a reinsurance policy. Thus, it does not appear that the claim is one "which may be recovered under more than one insurance guaranty association," and § 27-42-12(b) is thus inapplicable.[18]
Also nothing in § 27-42-12(b) suggests that the legislature intended to require, as a precondition to pursuing a claim against the AIGA, that a party seek further relief (by filing a case in court, for example) if the "other guaranty association" denied the claim.[19] Indeed, the imposition of such a requirement would be inconsistent with one of the purposes of the Guaranty Act, namely "to avoid excessive delay in payments." Ala.Code 1975, § 27-42-2. In short, based on the arguments presented and the facts before us, it appears that the AGCSF satisfied any obligation it had under § 27-42-12(b).
B. Is the AGCSF or the Reinsurance Trust Fund an Insurer or an Insurance Pool?
Section 27-42-5(4) of the Guaranty Act defines "covered claim" so as to exclude "any amount due any ... insurer [or] insurance pool ... as subrogation recoveries or otherwise." The AIGA argues that both the AGCSF and the Reinsurance Trust Fund are "insurers" or "insurance pools," whose claims are excluded from coverage under the Guaranty Act. We note, however, that the AIGA does not attempt to define the term "insurance pool"; it cites no legal authority in support of a specific argument relating to an "insurance *203 pool";[20] and its arguments in regard to that term consist only of conclusory statements. "We have unequivocally stated that it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). Thus, we will not consider whether the AGCSF or the Reinsurance Trust Fund might be an "insurance pool." Instead, we will confine our analysis to whether the entities at issue are "insurers" as that term is used in the Guaranty Act. We conclude that they are not.
The Guaranty Act does not define the term "insurer." The Guaranty Act is included within Title 27, however, and § 27-1-2, Ala.Code 1975, states:
"For the purposes of this title, the following terms shall have the meanings respectively ascribed to them by this section.
"....
"(2) INSURER. Every person engaged as indemnitor, surety or contractor in the business of entering into contracts of insurance."
(Emphasis added.) See also Ala.Code 1975, § 27-1-2(3) (defining "person" as "[a]n individual, insurer, company, association, organization, ... partnership, syndicate, business trust, corporation, and every legal entity"). Section 27-1-2(1), Ala.Code 1975, defines "insurance" as "[a] contract whereby one undertakes to indemnify another or pay or provide a specified amount or benefit upon determinable contingencies."
The broadly worded definition of "insurance" and the use of the above-emphasized restrictive language in the definition of "insurer" compel us to conclude that not all persons who enter into an "insurance" contract, i.e., who "undertake to indemnify another or provide a specified amount or benefit upon determinable contingencies," are considered "insurers" for purposes of Title 27. In other words, not all persons who contract to insure another person's obligation are "in the business of entering into contracts of insurance" for purposes of § 27-1-2(2). See Coates v. MS Dealer Serv. Corp., 747 So.2d 341 (Ala.Civ.App. 1999) (recognizing that a contract might be considered insurance for purposes of the tort of bad faith without the defendant's being subject to the provisions of Title 27). In fact, it appears that the legislature has recognized as much in regard to the type of entities involved in the present case. Section 27-4A-2(6), Ala.Code 1975, which defines "insurer" for purposes of the chapter on the Insurance Premium Tax, states that "self-insurance programs utilizing a trust fund or similar entity providing workers' compensation, health, and other insurance-like coverage shall not be included within this definition of insurer." (Emphasis added.) Compare Fla. Stat. § 624.4621(7) (providing that "[p]remiums, contributions, and assessments received by *204 a group self-insurer's fund" under Florida's worker's compensation statutes are subject to the premium tax applicable to insurance companies, but the "tax rate shall be 1.6 percent of the gross amount of such premiums, contributions, and assessments").
Also, enforcement of Title 27, of which the Guaranty Act is a part, falls to the Department of Insurance. See Ala.Code 1975, § 27-2-7. As noted in David Parsons's affidavit, the Department of Insurance does not consider "[s]elf-insured workers' compensation groups [to be] `insurers' under the laws pertaining to insurance in the State of Alabama and these groups are not regulated by the Alabama Department of Insurance."
"[I]t is well established that in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if the interpretation is reasonable.... Absent a compelling reason not to do so, a court will give great weight to an agency's interpretations of a statute and will consider them persuasive."
Ex parte State Dep't of Revenue, 683 So.2d 980, 983 (Ala.1996); see also, e.g., Hulcher v. Taunton, 388 So.2d 1203, 1206 (Ala. 1980).
Under the circumstances presented, the Department of Insurance's interpretation that a self-insured-employer group is not an "insurer" within the meaning provided in Title 27 is a reasonable one. It certainly is not unreasonable to conclude that a group formed for the purpose of allowing its members to qualify as self-insurers under the workers' compensation law (in lieu of their having to obtain insurance from an insurance company regulated by the Department of Insurance) and that is subject to regulation by the Department of Industrial Relations, is not "in the business of entering into contracts of insurance." As this Court has recognized, self-insurance really is not insurance at all; it is "the antithesis of insurance as that term is commonly used." Universal Underwriters Ins. Co. v. Marriott Homes, Inc., 286 Ala. 231, 232, 238 So.2d 730, 732 (1970).[21]
Furthermore, the conclusion that groups like the AGCSF and the Reinsurance Trust Fund are not "insurers" is consistent with the position of the framers of the *205 model act upon which the Guaranty Act is based. As this Court has noted, the Guaranty Act "was modeled after the Post-Assessment Property and Liability Guaranty Model Act," Air Tuskegee, Ltd., 883 So.2d at 195, which was promulgated by the National Association of Insurance Commissioners ("the NAIC"). As the Connecticut Supreme Court observed in Doucette v. Pomes, 247 Conn. 442, 461-62, 724 A.2d 481, 491-92 (1999), a case involving the issue whether a self-insured employer was an "insurer" for purposes of Connecticut's insurance-guaranty-association act,
"[i]n 1983, an NAIC study committee submitted a report to the NAIC concerning self-insured workers' compensation groups. 2 NAIC Proceedings (1983) p. 742. While such groups are not identical to an individual [self-insured] employer ..., they do self-insure, as a group. We therefore find the report instructive. The report states in two different places that if a self-insured workers' compensation group's excess insurance carrier becomes insolvent, the group should be able to turn to the state's insurance guaranty association fund for protection. See 2 NAIC Proceedings, supra, p. 770 (`[i]f the excess insurance company is not able to deliver on its contractual promises, the insurance guaranty fund can be called upon if the excess company is a licensed company'); id., p. 783 (`[l]icensed excess insurance companies not only are subject to closer regulatory supervision than unlicensed companies, but also provide workers' compensation groups with the additional protection afforded by state insolvency funds'). Therefore, the NAIC report demonstrates the intent of the NAIC that self-insurers are not insurers for purposes of state guaranty acts."
(Emphasis added; footnote omitted.) Accord Iowa Contractors, 437 N.W.2d at 916 (relying, in part, on the NAIC study committee, which "unequivocally noted the availability of insurance guaranty association fund protection if a [self-insured] group's excess carrier were to become insolvent," and concluding that such "groups are simply not `insurers' for purposes of Iowa" law). See also, e.g., MGM Mirage v. Nevada Ins. Guar. Ass'n, 209 P.3d 766, 772 (Nev.2009) (interpreting the Nevada insurance-guaranty-association act: "[B]ecause the plain meaning of `insurer' necessarily denotes a person or entity that is in the insurance business, self-insured employers are not insurers.... This conclusion is supported by a majority of jurisdictions' interpretations of their guaranty acts and is in harmony with Nevada's workers' compensation laws."); Stamp v. Department of Labor & Indus., 122 Wash.2d 536, 543-44, 859 P.2d 597, 601 (1993) ("In keeping with a majority of jurisdictions which have considered the status of self-insurers under an insurance guaranty act, we hold that employers which self-insure their workers' compensation obligations in Washington are not reinsurers, insurers, insurance pools or underwriting associations for purposes of either the Oregon guaranty act, or its nearly identical Washington counterpart.").[22]
*206 Even if the Department of Insurance had taken no position on this matter, however, we note that in Schoepflin v. Tender Loving Care Corp., supra, this Court stated:
"`Whether a corporation or association is engaged in the insurance business must be determined by the particular objects which it has in view, and not by abstract declarations of general purposes; the business which the organization is actually carrying on, rather than the mere form of the organization, is the test for determining whether it is carrying on an insurance business.'"
631 So.2d at 911 (quoting 43 Am.Jur.2d Insurance § 4 (1982) (emphasis added)). After considering the purpose of the AGCSF and the Reinsurance Trust Fund, and "the particular objects which [they have] in view," we are compelled to conclude that neither is an insurer for purposes of Title 27, including the Guaranty Act.
First, the sole purpose of the AGCSF is to facilitate self-insurance by a select group of employers who meet the requirements set forth in the bylaws.[23] As noted above, self-insurance is the antithesis of insurance. See Marriott Homes, Inc., 286 Ala. at 232, 238 So.2d at 732.
Second, this Court has no basis upon which to decide that a self-insured-employer group might be considered an insurer for purposes of a part of Title 27, namely the Guaranty Act, but not for purposes of the remainder of Title 27. Such a group either is in the "business of entering into contracts of insurance," § 27-1-2(2), within the meaning of Title 27 and is thus required to meet the requirements of Title 27 governing casualty insurers, or it is not. See Ala.Code 1975, § 27-3-1(a) ("No person shall act as an insurer and no insurer shall transact insurance in this state unless so authorized by a subsisting certificate of authority issued to it by the commissioner, except as to such transactions as are expressly otherwise provided for in this title [i.e., Title 27]".); Ala.Code 1975, § 27-5-6(a)(3) (explaining that workers' compensation insurance is a type of "casualty insurance").
*207 Further, in deciding whether a self-insured-employer group might be an insurer governed by Title 27, we cannot ignore the specific statutory scheme in the Workers' Compensation Act concerning such groups. Crawford v. Springle, 631 So.2d 880, 882 (Ala.1993) ("Where statutes in pari materia are general and specific, the more specific statute controls the more general statute."). As explained hereinafter, it is clear that to accept the AIGA's argument would turn the workers' compensation insurance scheme on its head so far as self-insured employers are concerned.
Section 25-5-8(a), Ala.Code 1975, provides that an employer who is subject to the Alabama Workers' Compensation Act may
"secure the payment of compensation under this chapter by insuring and keeping insured his or her liability in some insurance corporation, association, organization, insurance association, corporation, or association formed of employers and workers or formed by a group of employers to insure the risks under this chapter, operating by mutual assessment or other plans or otherwise. Notwithstanding the foregoing, the insurance association, organization, or corporation shall have first had its contract and plan of business approved in writing by the Commissioner of the Department of Insurance of Alabama and have been authorized by the Department of Insurance to transact the business of workers' compensation insurance in this state and under the plan."
Section 25-5-8(b), Ala.Code 1975, provides that an employer may
"elect[ ] not to insure his or her liability... [and] furnish satisfactory proof to the director [of the Department of Industrial Relations] of his or her financial ability to pay directly compensation in the amount and manner and when due as provided by this chapter. Upon receiving satisfactory proof, the director shall authorize the employer to operate as a self-insurer. The director may prescribe other reasonable rules and regulations for the purpose of protecting the injured employee or the employee's dependents and set reasonable fees to accompany self-insurance applications."
With respect to an employer who chooses to self-insure, § 25-5-9(a) provides that
"[t]he Director of Industrial Relations may, under such rules and regulations as he may prescribe, permit two or more employers ... to enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers under this chapter. Each employer member of such approved group shall be authorized to operate as a self-insurer under this chapter."
(Emphasis added). The AGCSF is such an approved group. Section 25-5-9(b) provides that
"[t]wo or more employer groups as described in (a) above may enter into agreements to pool their liabilities under this chapter for the purpose of providing excess coverage above the self-insured retention levels maintained by the individual employer groups."
The Reinsurance Trust Fund constitutes such a group.
The foregoing provisions clearly contemplate that, if an employer chooses to purchase insurance to cover its liability under the Workers Compensation Act, rather than self-insuring that liability, the "insurance" it will purchase for that purpose will be insurance provided by an insurer regulated by the Department of Insurance. See Ala.Code 1975, § 27-3-1(a). As to self-insured employers, however, it is equally clear that such employers and the groups contemplated by § 25-5-9(a) and *208 (b) in order to enable employers to self-insure are regulated by the Department of Industrial Relations, see § 25-5-8(b), not the Department of Insurance.[24]
Based on the foregoing, we conclude that the AGCSF and the Reinsurance Trust Fund[25] are not "insurers" for purposes of the Guaranty Act.
C. Is the Reliance Policy a Reinsurance Policy?
The AIGA next argues that the AGCSF's claim is not a "covered claim" under the Guaranty Act because, according to the AIGA, the Reliance policy is not direct insurance, but is instead reinsurance. Specifically, the AIGA contends that the Reliance policy does not satisfy the definition of direct insurance as set forth in Alabama Insurance Guaranty Ass'n v. Pierce, 551 So.2d 310 (Ala.1989), and that by its terms it is instead reinsurance. We reject the AIGA's arguments.
We first observe that, for essentially the same reasons we conclude above that the AGCSF and the Reinsurance Trust Fund are not "insurers," we cannot conclude that the participation agreement issued by the AGCSF or the "policy" issued by the Reinsurance Trust Fund (to the extent the policy otherwise resembles insurance) properly could be classified as "insurance" under Title 27. See also Ala.Code 1975, § 27-4A-2 (describing such "self-insurance programs" as "insurance-like").
Second, as mentioned above, in Doucette the Connecticut Supreme Court noted that the framers of the model act on which the Guaranty Act was based indicated that a self-insured group
"should be able to turn to the state's insurance guaranty association fund for protection. See 2 NAIC Proceedings, supra, p. 770 (`[i]f the excess insurance company is not able to deliver on its contractual promises, the insurance guaranty fund can be called upon if the excess company is a licensed company'); id., p. 783 (`[l]icensed excess insurance companies not only are subject to closer regulatory supervision than unlicensed companies, but also provide workers' compensation groups with the additional protection afforded by state insolvency funds')."
247 Conn. at 462, 724 A.2d at 492 (emphasis added); see also Iowa Contractors, supra.
Third, the determination whether an insurance policy is reinsurance does not depend solely on whether there is an underlying insurance policy that is being insured. Instead, the determination whether an insurance policy is reinsurance also depends on whether the insured is itself an insurer. Reinsurance is "insurance for insurance companies." 1A Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 9:1 (3d ed.2005); see also Black's Law Dictionary 1312 (8th ed.2004) (defining "reinsurance" as "[i]nsurance of all or part *209 of one insurer's risk by a second insurer, who accepts the risk in exchange for a percentage of the original premium").
"There are two parties to a reinsurance agreement.... The insurance company which is transferring or `ceding' its risk is known as the reinsured, the `cedent' the original insurer, or the direct insurer. The insurance company to which the risk is being transferred is known as the reinsurer. The only non-insurance company that has any relationship to this factual situation is the person or entity that acquires the original insurance contract from the original insurer, and this party is therefore known as the original insured."
Couch on Insurance at § 9:2 (footnote omitted; emphasis added).
Although the obligations of the AGCSF and the Reinsurance Trust Fund are "insurance like," and thus the relationship between them and Reliance might resemble reinsurance in some respects, the AGCSF and the Reinsurance Trust Fund are not insurers under Alabama law. Accordingly, by definition, the Reliance policy could not properly be classified as reinsurance for purposes of the Guaranty Act.[26]
*210 Fourth, the AIGA wrongly reads Pierce as requiring the conclusion that insurance that is not paid to Wheeler or to M & D Power is not direct insurance. In Pierce, O.B. Pierce suffered an on-the-job injury while working for his son, Johnny Pierce, who was a vendor of the Tennessee River Pulp & Paper Company.
"Tennessee River's worker's compensation insurance was based on an agreement between Western Preferred Casualty Company (`Western'), American Excess Underwriters, Inc., (`American Excess'), and Early American Insurance Company (`Early American'). American Excess issued an insurance policy that named as insured the `vendors of Tennessee River Pulp & Paper Company'.... The insurance policy named Western as the insurer of Tennessee River's vendors. Additionally, the policy contained this attached endorsement by Early American:
"`EARLY AMERICAN INSURANCE COMPANY hereby agrees that in the event the WESTERN PREFERRED CASUALTY COMPANY fails to pay any loss which is payable under this policy, EARLY AMERICAN INSURANCE COMPANY shall become liable for the loss after receiving written notice and demand for payment from the insured. Any payment shall be subject to the terms and conditions of this policy.'
"....
"After O.B. Pierce filed his action, he received an affidavit that stated that Western had been placed in receivership. American Excess nevertheless retained counsel to defend Johnny Pierce and it paid O.B. Pierce compensation benefits. Both American Excess and Early American were subsequently placed in receivership. After O.B. Pierce added the [Alabama Insurance] Guaranty Association as a party, the Guaranty Association learned that Western was not licensed to transact insurance business in Alabama and claimed that it had no responsibility either to make compensation payments to O.B. Pierce or to defend and indemnify Johnny Pierce."
551 So.2d at 311.
This Court first held that the AIGA had no obligation to pay any claim against either Western Preferred Casualty Company or American Excess Underwriters, Inc., because neither of them had been licensed to transact insurance in Alabama. We reached the contrary conclusion as to Early American Insurance Company, however, and went on to consider whether its endorsement was direct insurance under the Guaranty Act:
"Neither the legislature nor this Court has defined `direct insurance' as that term is used in this context. In making our determination of the meaning of `direct insurance,' as that term is used in the Act, we must determine what the legislature intended the words to mean. Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala. 1984). The intention of the legislature must be determined primarily from the language of the statute itself if it is *211 unambiguous, and the words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning. Id. In determining the definition of the term `direct insurance' in the Florida Insurance Guaranty Act, a Florida appeals court, confronted with a situation similar to that presented here, where there was little guidance as to the definition of the term, wrote the following about the plain, ordinary meaning of the word `direct,' as it was used in the Florida act:
"`All agree that the legislature intended the act to have no applicability to insurance which was not "direct insurance." However, nowhere in the Act, or in Florida Statutes generally, is the term "direct insurance" defined. Nor does it appear that "direct insurance" is a term of art in insurance law generally. The simple word "direct" when used as an adjective is readily and commonly understood to mean immediate; without deviation or interruption; by the shortest route; without circuitry; without any intervening medium, agency or influence....'
"Zinke-Smith, Inc. v. Florida Insurance Guaranty Association, 304 So.2d 507, 509 (Fla.Dist.Ct.App.1974). Considering those commonly understood meanings of the word direct as described by the Florida appeals court, we hold that `direct insurance' as used in the Act refers to an insurance contract between an insured and an insurer that has accepted a designated risk of a designated loss to the insured. In the present case, Early American, which was licensed to transact insurance business in Alabama, agreed that, if Western failed to pay any loss payable under the policy, then Early American would be liable to pay for such a loss. Early American, thus, by virtue of an insurance contract, accepted the designated risk that if Western failed to pay Pierce, then Early American would pay Pierce the amount due under that policy (that amount would be the designated loss, of course). Accordingly, the endorsement Early American made as a licensed insurer in Alabama constitutes `direct insurance' within the meaning of the Alabama Insurance Guaranty Association Act, and the Guaranty Association is bound to provide coverage under the provisions of the Act."
551 So.2d at 312-13 (emphasis added).
Among other things,[27] the AIGA argues that the Reliance policy does not constitute "direct insurance" because it provides indemnity coverage to the Reinsurance Trust Fund rather than coverage to the "direct insured or any third parties." Although the AIGA made the foregoing argument in its initial appellate brief, on remand it stipulated that Reliance had issued the Reliance policy "to the three members of the [Reinsurance Trust] Fund," one of whom is the AGCSF, and that the policy "provide[d] for reimbursement to the individual members of the [Reinsurance Trust] Fund for `loss paid or payable as a result of: (A) Compensation and other benefit payments required of the Reassured [Insured] by the Workers Compensation Law of any state ...'." Thus, we will consider those facts as settled between the parties.
That said, the AIGA misreads Pierce. It is true that in Pierce, the insurance was considered "direct insurance" because the *212 proceeds of the policy were paid directly to the injured employee. It is also true that, in Pierce, if Western had been the party to directly pay the injured employee and Early American Insurance Company had merely indemnified Western, the policy under which that indemnification had been made would have constituted a policy of reinsurance. This would have been true in Pierce, however, because Western was an insurer. Here, in contrast, although Reliance did not make a payment directly to Wheeler, the entity to which it was obligated to make payment, AGCSF, was not an insurer. That obligation, therefore, is not an obligation under a reinsurance policy.
Furthermore, in Zinke-Smith, Inc. v. Florida Insurance Guaranty Ass'n, 304 So.2d 507 (Fla.Dist.Ct.App.1974), the primary case upon which Pierce relied, a Florida appeals court noted that "`direct insurance' as used in the [Florida Insurance Guaranty] Act refers to an insurance contract between the insured and the insurer which has accepted the risk of a designated loss to such insured, which relationship is direct and uninterrupted by the presence of another insurer." 304 So.2d at 508 (emphasis added). As the Zinke-Smith court further recognized, even "a policy of reinsurance would, of course, be direct insurance as between the parties thereto, i.e., the insurer-reinsured on the one hand and the reinsurer on the other hand." 304 So.2d at 509 (emphasis added). The court then explained that, "as concerns the scope of the Act, the same was not intended to apply to reinsurance," because reinsurance was insurance for insurers, who were precluded from recovery under the pertinent provisions of Florida law. Id. As noted, however, the AGCSF is not an insurer. Accordingly, the Reliance policy was one of direct insurance only, not reinsurance.
Given the parties' stipulations, we conclude that the Reliance policy directly insured the AGCSF as to its risk of loss for the payment of workers' compensation claims in excess of $400,000. The AGCSF is not an insurer, and the Reliance policy was not a policy of reinsurance.[28]
Based on the foregoing, the judgment of the trial court is affirmed.
1060495AFFIRMED.
1071194AFFIRMED.
COBB, C.J., and STUART and BOLIN, JJ., concur.
LYONS, J., concurs in part and concurs in the result.
LYONS, Justice (concurring in part and concurring in the result).
As to the main opinion's affirmance of the trial court's judgment based on its finding that the AGCSF complied with the requirements of § 27-42-12(b), Ala.Code 1975 ("Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall[,] ... if it is a workmen's compensation claim, ... seek recovery first from the association of the residence of the claimant."), I concur in the result.
The trial court, as one of its bases for rejecting the AIGA's contention that the AGCSF had not sufficiently complied with § 27-42-12(b) by failing to pursue litigation against the FWCIGA after receiving *213 an unfavorable administrative determination, concluded that such a course of action would have been futile. The AIGA argues in its principal brief, without citation to authority, that the trial court "had no authority to make a de facto ruling under Florida law...." (Brief of the AIGA, at 16 n. 5.) Rule 28(a)(1), Ala. R.App. P., requires an appellant to present reasoning and citation to authority in support of its argument. Because of the failure of the AIGA to comply with Rule 28(a)(10), any challenge to the rationale for the trial court's interpretation of § 27-42-12(b) as not requiring the pursuit of fruitless litigation after an adverse administrative determination has been waived. "`[W]here no legal authority is cited or argued, the effect is the same as if no argument had been made.'" Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala.2005) (quoting Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala. Civ.App.1987)). Moreover, as the main opinion notes, the AIGA does not contend that such further litigation would have produced a result inconsistent with the administrative determination by the FWCIGA.
In all other respects I concur in the thorough analysis of the main opinion.
NOTES
[1] Although we use the name the parties used for AGCSF, the bylaws of the organization indicate that the name of the entity is the "Alabama Associated General Contractors Self-Insured Workers' Compensation Fund."
[2] While this case was pending, the Alabama Legislature amended § 27-42-5. As part of the amendment, subdivision (4) was redesignated as subdivision (6) and the definition of "covered claim" was amended to add to the list of claims that are excluded from the definition of a "covered claim" claims for amounts "due any ... self-insurer." Act No. 2009-716, Ala. Acts 2009. Also, "self-insurer" is now defined as "[a] person that covers its liability through a qualified individual or group self-insurance program or any other formal program created for the specific purpose of covering liabilities typically covered by insurance." Ala.Code 1975, § 27-42-5(14).
[3] Generally self-insured employers must be "members of the [Alabama Workmen's Compensation Self-Insurers Guaranty Association] as a condition of their authority to self-insure." Ala.Code 1975, § 25-5-251. The purpose of the Alabama Workmen's Compensation Self-Insurers Guaranty Association is "to create and fund an insolvency fund to assure payment of worker's compensation claims due from self-insuring employers who are members of the association and who become insolvent." Ala.Code 1975, § 25-5-251. The present case does not concern a self-insuring employer who has become insolvent.
[4] By the same token, we note that the bylaws further provide that the trustees of the AGCSF may "[c]ontract for reinsurance," and the by-laws authorize the trustees to pay from the claims-fund account any "reinsurance costs."
[5] The term "Reassured" is not defined in the certificate of reinsurance.
[6] "S.I.R." is an acronym for "self-insured retention."
[7] Although the last quoted sentence from paragraph 1 of the General Conditions might be interpreted to mean that the AGCSF had no right to pursue a direct action against Reliance, as hereinafter discussed, the parties have stipulated that the Reliance policy
"provides for reimbursement to the individual members of the [Reinsurance Trust] Fund for `loss paid or payable as a result of: (A) Compensation and other benefit payments required of the Reassured [Insured] by the Workers Compensation Law of any state;...'. Under [the Reliance policy], [the AGCSF] has a $400,000 self insured retention."
See generally United States Fire Ins. Co. v. Smith, 231 Ala. 169, 175, 164 So. 70, 75 (1935) (noting that normally the reinsured's policyholders are not in privity with the reinsurer and thus cannot maintain an action on the reinsurance contract but recognizing that "`if the contract of reinsurance is made directly for the benefit of reinsured's policy holders, or if the reinsurer assumes and agrees to perform reinsured's contracts, the reinsurer becomes directly liable to the policy holder.'" (quoting 33 Corpus Juris § 735 (emphasis omitted))).
[8] "Excess reinsurance" has been defined as "[r]einsurance in which a reinsurer assumes liability only for an amount of insurance that exceeds a specified sum." Black's Law Dictionary 1312 (8th ed.2004).
[9] The materials contained in the record on appeal do not provide detailed information concerning Wheeler's claim against M & D Power or the AGCSF's handling of that claim, nor does the record provide details concerning the AGCSF's correspondence with the Reinsurance Trust Fund.
[10] See Ala.Code 1975, § 27-42-12(b) ("Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall[,] ... if it is a workmen's compensation claim, ... seek recovery first from the association of the residence of the claimant."). This section is discussed in more detail infra.
[11] Section 631.904 does not specifically refer to reinsurance or "assumed reinsurance." Cf. Fla. Stat. § 626.7492(g) ("`Reinsurance intermediary manager' means any person who has authority to bind, or manages all or part of, the assumed reinsurance business of a reinsurer...."); Fla. Stat. § 626.7492(h)("`Reinsurer' means any person duly licensed in this state pursuant to the applicable provisions of the Florida Insurance Code as an insurer with the authority to assume reinsurance.").
The FWCIGA apparently concluded that under Florida law the Reinsurance Trust Fund was an insurer, that under the Reliance policy Reliance had assumed the Reinsurance Trust Fund's obligations to the AGCSF, and that the Reliance policy was therefore assumed reinsurance. See Fla. Stat. § 631.904(2)(defining "covered claim" so as to exclude "any amount due any ... insurer ... as subrogation recoveries or otherwise"); Fla. Stat. § 631.904(5)(defining "insurer" as "an insurance carrier or self-insurance fund authorized to insure under chapter 440," i.e., the Florida Workers' Compensation Law, Fla. Stat. § 440.01 et seq.); Fla. Stat. § 631.904(6)(defining "self-insurance fund" to include a group self-insurance fund authorized under Fla. Stat. § 624.4621); Fla. Stat. § 624.4621(1) (authorizing the Florida Insurance Commission to "adopt rules that allow two or more employers to enter into agreements to pool their liabilities under [the Florida Workers' Compensation Law] for the purpose of qualifying as a group self-insurer's fund"). The AIGA has not argued that the FWCIGA wrongly applied Florida law, rather than Alabama law, when it rejected the AGCSF's claim, nor has the AIGA argued that the FWCIGA wrongly interpreted Florida law as to the claim.
As hereinafter discussed, unlike the statutes governing the FWCIGA, the Guaranty Act does not expressly include a self-insurance fund within the definition of the term "insurer." As noted, a recent amendment to the definition of "covered claim," however, has added a payment "due any ... self-insurer" to the list of claims excluded from coverage under the Guaranty Act and has further defined "self-insurer" so as to include a "group self-insurance program." Ala.Code 1975, § 27-42-5(6). See note 2, supra.
[12] There is no indication from the materials in the record that further administrative review was available to the AGCSF, and the AIGA makes no argument that such was the case.
[13] Neither party has raised any issue concerning the absence of the Reinsurance Trust Fund as a party to this case. Although we recognize that we can raise the absence of a necessary party ex mero motu, see Chicago Title Insurance Co. v. American Guarantee & Liability Insurance Co., 892 So.2d 369, 371 (Ala.2004), and that the Reinsurance Trust Fund could conceivably have an interest in this matter such that it should be made a party pursuant to Rule 19(a), Ala. R. Civ. P., see Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So.2d 1013, 1021-23 (Ala. 2003), we cannot conclude from the record on appeal that the Reinsurance Trust Fund has such an interest. As noted above, the "policy" the Reinsurance Trust Fund issued to the AGCSF is not included in the record on appeal, and its terms are not discussed in any of the materials that the parties filed with the trial court. Without that "policy," we cannot conclude (1) that the Reinsurance Trust Fund has an obligation to the AGCSF that might "as a practical matter [be] impair[ed] or impede[d]" by a declaration concerning the AIGA's obligations under the Reliance policy, if any, or (2) that the AGCSF or the AIGA might be at "substantial risk of ... incurring inconsistent obligations by reason of" any interest of the Reinsurance Trust Fund in this matter. Rule 19(a), Ala. R. Civ. P. It is possible, for example, that the "policy" the Reinsurance Trust Fund issued to the AGCSF limited the rights of the AGCSF to those rights available under any policy of insurance the Reinsurance Trust Fund purchased (i.e., that the "policy" issued by the Reinsurance Trust Fund was in the nature of a nonrecourse obligation so far as it was concerned, with Reliance essentially assuming the obligations the Reinsurance Trust Fund otherwise would have had).
[14] They also stipulated that the Reliance policy had a payout limit of $1,000,000 and that $492,265.04 remained available under the Reliance policy as "potential future coverage" for the AGCSF's obligations arising out of Wheeler's claim.
[15] In addition to excluding amounts due an insurer or an insurance pool, § 27-42-5(4) also excludes amounts due a reinsurer. The AIGA did not argue to the trial court, and it does not argue to this Court, that the AGCSF or the Reinsurance Trust Fund are reinsurers.
[16] The trial court and the FWCIGA treated the AGCSF's claim as a "workmen's compensation claim" as to which recovery first must be sought from the guaranty association of the State of Wheeler's residence, namely Florida. The FWCIGA rejected the claim because it concluded that the Reliance policy was a reinsurance policy under Florida law, and the trial court concluded that the AGCSF had satisfied its obligation to seek recovery first from the FWCIGA. Because the evidence before the trial court supports the conclusion that the AGCSF satisfied any obligation it might have had under § 27-42-12(b), we need not consider whether the trial court's judgment might be affirmed on the alternative ground that the AGCSF's claim was not a "workmen's compensation claim" under § 27-42-12(b).
[17] The Guaranty Act "was modeled after the Post-Assessment Property and Liability Guaranty Model Act." Alabama Ins. Guar. Ass'n v. Air Tuskegee, Ltd., 883 So.2d 192, 195 (Ala. 2003). As the AIGA notes, many states based their statutory schemes concerning the insolvency of certain insurers on the model act, which reflected an attempt at a unified national approach to the issue. See id. at 197; see also American Employers' Ins. Co. v. Elf Atochem North America, Inc., 157 N.J. 580, 597-98, 725 A.2d 1093, 1102 (1999). The FWCIGA, Fla. Stat. § 631.901 et seq., which has been amended repeatedly, though similar in some respects to the Guaranty Act, appears to be more limited in scope than the Guaranty Act. Also, the AIGA cites no authority to support the conclusion that the FWCIGA is based on the Post-Assessment Property and Liability Guaranty Model Act.
[18] Of course, the FWCIGA's determination, which was based on Florida law, is not conclusive of the issue whether the Reliance policy is a reinsurance policy for purposes of Alabama law or whether such a policy can form the basis for a claim under the Guaranty Act.
[19] The AIGA has presented no argument that the AGCSF did not exercise good faith in deciding how far to pursue its claim against the FWCIGA or as to whether a failure to exercise good faith in the pursuit of a claim might impact the application of § 27-42-12(b).
[20] In a supplemental submission of authority, the AIGA refers this Court to Louisiana Safety Ass'n of Timbermen Self-Insurers Fund v. Louisiana Insurance Guaranty Ass'n, 17 So.3d 350 (La.2009), in support of its argument that the AGCSF and the Reinsurance Trust Fund are insurers. Although not discussed by the AIGA, Louisiana Safety Association states the following in regard to whether a self-insured-employer group is an insurance pool:
"In the present case we are not presented with an insurance pool. Rather than a pooling of insurance, we have a trade or professional association that has agreed to pool their liabilities to their employees on account of personal injury and occupational disease arising out of or incurred during the course and scope of the employment relationship."
Id. at 355 n. 4.
[21] We also have recognized, however, that
"[s]elf-insurance ... typically involves a single-party, noncontractual situation whereas insurance involves a multi-party, contractual relationship. See Ala.Code 1975, § 27-1-2 (insurance is `[a] contract whereby one undertakes to indemnify another or pay or provide a specified amount or benefit upon determinable contingencies'). Additionally, self-insurance differs materially from insurance in that the former involves no shift in the risk of loss whereas the latter clearly involves such a shift."
Strength v. Alabama Dep't of Fin., 622 So.2d 1283, 1288 (Ala.1993).
A member of the AGCSF clearly is not an insurer as to its own employees' workers' compensation claims. Technically speaking, however, the contractual obligations of the AGCSF and its members might be considered to be insurance, broadly speaking, since the payment of members' assessments to the AGCSF and the maintenance of the claims-fund account for the payment of workers' compensation claims spread the risk of claims among the members rather than any single member having to bear all the responsibility for its employees' claims. Thus, it would not be illogical to conclude that the AGCSF, and perhaps its members, might be considered to be engaged in the "business of entering into contracts of insurance" based on the nature of their recurring obligations to one another. The fact that a conclusion other than that reached by the Department of Insurance might also be a reasonable one, however, does not allow us to ignore the Department's position.
[22] The recent amendment to the Guaranty Act, which added "self insurer" to the list of entities whose claims were excluded from coverage, further supports the conclusion that the term "insurer" did not include, and does not include, a "self insurer." See note 2, supra. (Of course, a "self-insurer" may be an entity that, on its own, is able to meet the financial and other regulatory requirements to qualify as such or an entity that must combine with others in order to do so. Ala. Code 1975, § 25-5-9(a).)
Also, though we agree with those courts that have concluded that, absent a specific statutory provision to the contrary, a self-insured employer or self-insured-employer group is not an "insurer" for purposes of an insurance-guaranty-association act, we recognize that some courts have reached the opposite conclusion. For example, in Maryland Motor Truck Ass'n Workers' Compensation Self-Insurance Group v. Property & Casualty Insurance Guaranty Corp., 386 Md. 88, 99, 871 A.2d 590, 596 (2005), the Court of Appeals of Maryland concluded that such a group was an "insurer" based, in part, on the fact that Maryland workers' compensation "self-insurance groups are subject to extensive regulation by the Insurance Commissioner." See also Louisiana Safety Ass'n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass'n, 17 So.3d at 356-57 (self-insurers and insurers regulated by the Department of Insurance). As discussed above, however, in Alabama such groups are regulated by the Department of Industrial Relations, and the Department of Insurance does not consider them to be "insurers." Likewise, we find unpersuasive the rationale of the court in South Carolina Property & Casualty Insurance Guaranty Ass'n v. Carolinas Roofing & Sheet Metal Contractors Self-Insurance Fund, 315 S.C. 555, 446 S.E.2d 422 (1994), which based its decision on an arguably more expansive definition of "insurer." 315 S.C. at 558, 446 S.E.2d at 424 (an "insurer" includes an "`association... engaging or proposing or attempting to engage as principals in any kind of insurance ... business.'" (quoting S.C.Code Ann. § 38-1-20(25) (Supp.1993))(emphasis added)).
[23] The bylaws state that "[e]ach member of the [AGCSF] is required to be a regular or associate member in good standing of the Alabama Associated General Contractors, Inc.... and to satisfy any other membership requirements established from time to time by the Board of Trustees [of the AGCSF]."
[24] We also note that one of the purposes of the Guaranty Act is "to assist in the detection and prevention of insurer insolvencies." There is no indication in the record that the AIGA plays any role in detecting or preventing the insolvency of groups such as the AGCSF or the Reinsurance Trust Fund.
[25] Based on the record before us, the Reinsurance Trust Fund is nothing more than a group of self-insured-employer groups that have pooled their workers' compensation liability risks for purposes of "excess coverage" of the various member groups' workers' compensation claims. The Reinsurance Trust Fund is regulated by the Department of Industrial Relations, see Ala. Admin. Code (Department of Industrial Relations), r. 480-5-1-.04. There is no indication that the Department of Insurance considers a § 25-5-9(b) group to be an insurer for purposes of Title 27.
[26] The AIGA has not discussed the administrative regulations promulgated by the Department of Industrial Relations. The regulations require a self-insured employer to "maintain specific excess insurance coverage for its workers' compensation liability. ... Reinsurance may not be substituted for excess coverage," and the excess insurance must be obtained from an insurance company admitted to transact insurance business in Alabama by the Department of Insurance. Ala. Admin. Code (Department of Industrial Relations), r. 480-5-2-.02(5)(d) (emphasis added); see also Ala. Admin. Code (Department of Industrial Relations) r. 480-5-1-.04(1)(a) (excess insurance policy must be "issued by an admitted insurance company").
Likewise, the general rule is that a self-insured-employer group formed pursuant to § 25-5-9(a) must obtain excess insurance from an admitted insurance company, see Ala. Admin. Code (Department of Industrial Relations), r. 480-5-3-.08(3) (self-insured-employer groups are "required to obtain specific excess insurance" and "may obtain aggregate excess insurance"); Ala. Admin. Code (Department of Industrial Relations), r. 480-5-3-.06(ii) (defining "specific excess insurance" as "[i]nsurance which provides that the excess insurer pays on behalf of or reimburses a [self-insured-employer group] for its payment of benefits on each occurrence in excess of the retention up to the amount of the excess insurer's limit of liability" (emphasis added)); Ala. Admin. Code (Department of Industrial Relations), r. 480-5-3-.06(f) (defining "aggregate excess insurance" as "[i]nsurance which provides payment on behalf of or reimburses a [self-insured-employer group] for its payment of benefits on claims incurred during a policy period in excess of the aggregate retention amount up to the excess insurer's limit of liability." (emphasis added)).
There is an exception to the general rule, however. A self-insured-employer group "that become[s] [a] member[] of any Alabama reinsurance trust fund, as allowed by [§] 25-5-9(b), Code of Ala. 1975, as last amended, shall not be required to provide other excess insurance during the period of time in which they are members of the reinsurance trust fund." Ala. Admin. Code (Department of Industrial Relations), r. 480-5-1-.04(2). It might be inferred from the use of the term "other" in r. 480-5-1-.04(2) that the Department, of Industrial Relations considers a § 25-5-9(b) group to be providing "excess insurance" to its member groups. Because the policy issued by the Reinsurance Trust Fund has not been offered in evidence, however, it is not possible to conclude whether that policy actually is "excess insurance."
We also note that a self-insured-employer group may obtain reinsurance, see Ala. Admin. Code (Department of Industrial Relations), r. 480-5-3-.08(13)(b), and an Alabama reinsurance trust fund created pursuant to § 25-5-9(b) may obtain reinsurance. See Ala. Admin. Code (Department of Industrial Relations), r. 480-5-1-.04(3)(b). Again, it might be inferred from these regulations that, so far as the Department of Industrial Relations is concerned, both a § 25-5-9(a) self-insured-employer group and a § 25-5-9(b) group are considered to be providing insurance to their participants, otherwise it would be incorrect to classify insurance they obtain as reinsurance. We need not defer to the Department of Industrial Relations classifications for purposes of Title 27, however, because it is not the agency charged with the administration of that Title. See Ex parte State Dep't of Revenue, 683 So.2d at 983 ("[A] court accepts an administrative interpretation of the statute by the agency charged with its administration, if the interpretation is reasonable."). Further, as hereinafter discussed, the fact that the Reliance policy might be classified as reinsurance does not mean it is not direct insurance for purposes of the Guaranty Act.
[27] In addition to the argument discussed in the text, the AIGA seeks to rely upon the terminology used in the certificate of insurance issued by Reliance, which includes references to reinsurance. The question before us, however, is whether the law considers a policy such as the Reliance policy to be one of direct insurance or reinsurance.
[28] The AIGA also directs us to dicta in SouthTrust Bank of Alabama, N.A. v. Alabama Life & Disability Insurance Guaranty Ass'n, 578 So.2d 1302 (Ala. 1991), in an attempt to support its argument. Because the portion of the SouthTrust opinion upon which the AIGA seeks to rely is dicta, because it does not reflect a consideration of the nature of reinsurance, and because it is inconsistent with the rationale discussed above, we decline to adopt it as determinative of the issues before us.
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554 F.2d 868
14 Fair Empl.Prac.Cas. 1455, 14 Empl. Prac.Dec. P 7564SPERRY RAND CORPORATION, Petitioner,v.Honorable Earl R. LARSON, United States District Judge forthe District of Minnesota, Respondent,andDelores Elliott and Helen Ambrose, and all other personssimilarly situated, Respondents.
No. 76-1734.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 12, 1976.Decided May 9, 1977.
David S. Doty, Minneapolis, Minn., Richard C. Hotvedt, of Popham, Haik, Schnobrich, Kaufman & Doty, Minneapolis, Minn., and Gerald S. Hartman, Washington, D. C., on brief, for Sperry Rand Corp.
William Pentelovitch, Minneapolis, Minn., for International Brotherhood of Electrical Workers.
James T. Hansing, Minneapolis, Minn., made argument for Local Union No. 2047.
Richard Bland, Minneapolis, Minn., on brief for respondents.
Before GIBSON, Chief Judge, HEANEY and WEBSTER, Circuit Judges.
WEBSTER, Circuit Judge.
1
Sperry Rand Corporation, a defendant in a Title VII action brought by female employees, petitions this Court for a writ of mandamus to compel decertification of class action status previously granted conditionally to plaintiffs by the District Court.1 The complaint seeks injunctive relief against class-based sex discrimination in employment practices. In addition, back pay and attorneys' fees are demanded. Also named as defendants are Local Union No. 2047 of the International Brotherhood of Electrical Workers, and the International Brotherhood of Electrical Workers, AFL-CIO.2
I. Availability of Mandamus
2
Petitioner did not seek interlocutory review of the class action certification under 28 U.S.C. § 1292(b). Instead, it sought relief by way of the extraordinary writ of mandamus. This was a conscious procedural choice and it severely limits the scope of our review.3
3
" The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). As we said in In re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 68 (8th Cir. 1976):
4
The remedy of mandamus is available only in those circumstances where the district court exceeds "the sphere of its discretionary power." Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 278, 19 L.Ed.2d 305, 315 (1967). See In re Cessna Aircraft Distributorship Antitrust Litigation, supra, 8 Cir., 518 F.2d 213 at 216; Pfizer Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir. 1972). See also Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 775 (2d Cir. 1972). Mandamus is an extraordinary remedy reserved only for extraordinary situations. Stein v. Collinson, 499 F.2d 91, 95 (8th Cir. 1974); Gialde v. Time, Inc., 480 F.2d 1295, 1302 (8th Cir. 1973).
5
Mandamus may be appropriate to review orders granting class action designation when the issue presented is one of clear usurpation of power by the district court. Thus, in Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir. 1975), we issued the writ where the District Court had granted Rule 234 class action certification in an action brought under the Fair Labor Standards Act notwithstanding the special and conflicting "opt in" requirements of that Act. See 29 U.S.C. § 216(b). Mandamus was similarly granted in Pan American World Airways, Inc. v. United States District Court, 523 F.2d 1073 (9th Cir. 1975), and McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976), where the district court had ordered that next of kin of passengers killed in airline crashes be notified of other pending litigation against the airlines, thus exceeding its power under any statute, rule or equity power of the court.
6
It is our task to determine whether the action of the District Court in this case so exceeded its discretion as to be a usurpation of power requiring the issuance of the supervisory writ.
II. The Merits
7
Employment discrimination by definition has been construed as class-wide discrimination and the class action requirements have thus been broadly interpreted by the courts. See Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 721 (7th Cir. 1969); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). This of course does not obviate compliance with the requirements of Rule 23, see Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968), nor will individual claims automatically become class claims without a showing that others in the class were victims of the same or similar employment patterns and practices. See Wright v. Stone Container Corp., supra, 524 F.2d at 1062.
8
The complaint in the present action alleges no claims peculiar to the named plaintiffs, Elliott and Ambrose; instead, it charges that plaintiffs and members of the class "have been and are being deprived of income in the form of wages and of prospective retirement benefits, social security and other benefits due to them as workers, solely because of their sex." The discriminatory employment practices affecting the class which are alleged to have jeopardized jobs and adversely affected opportunities for advancement are set forth in the margin.5
9
The main thrust of petitioner's claim to relief by way of mandamus is that the District Court's certification of the class under Rule 23(b)(2), combined with the order of notice to class members similar to that required under Rule 23(b) (3), operated to lock in antagonistic members of the class and at the same time foment litigation. It was this method of proceeding, ordered by the District Court pursuant to Rule 23(d), that petitioner contends was a usurpation of power by the District Court. In order to assess this contention, we must determine (1) whether the class action certification was so plainly inappropriate that it exceeded the court's discretion, and (2) whether the additional notice requirements were, under the circumstances present in this case, clearly outside the discretion of the District Court.
A. Class Action Certification
10
The factual determinations upon which the District Court found that plaintiffs had satisfied the class action prerequisites of Rule 23(a),6 even if arguably erroneous, do not warrant resort to supervisory mandamus. The District Court held that the requirements of numerosity, commonality of issues, and typicality had been met. See Fed.R.Civ.P. 23(a). These determinations are well within the trial court's "sphere of its discretionary power." See Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); In re Cessna Aircraft Distributorship Antitrust Litigation, 518 F.2d 213, 216 (8th Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282 (1975). No discussion of these factors is required.
11
A more concerted challenge is made to the District Court's finding that plaintiffs would fairly and adequately represent the class. See Rule 23(a)(4).7 Our review under a petition for mandamus is limited to a determination of whether the District Court acted outside its discretion or so clearly ignored a compelling showing of inappropriateness that granting class action certification amounted to a denial of due process.
12
No challenge is made to the competency of plaintiffs' counsel. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). Instead, it is claimed that plaintiffs, as past officers of the union, engaged in activities in and out of office that were not consistent with the interests of other members of the class. Five sources of antagonism were brought to the District Court's attention:
13
1. Intra-union disputes which occurred from 1968-1970 while plaintiffs were union officers;
14
2. Plaintiffs, as former union officers, may be called as witnesses to defend the Local against charges that it is liable for discriminatory practices that occurred during the time they were in office;
15
3. Plaintiffs were suspended from office in 1970 by the International and prohibited from holding office for five years. Since that time they have initiated three different proceedings against the unions, suggesting an ulterior motive for this suit.
16
4. The class itself does not support this suit, as evidenced by a resolution of nonsupport passed 83-0 at a union meeting and by unsolicited petitions in which the signers stated they did not support the action.
17
5. Since plaintiffs' suspension period has ended, they are likely to run for office again and may be using this lawsuit to advance their political ambitions.
18
The District Court gave careful consideration to whether these factors disqualified plaintiffs as fair and adequate representatives of the class, guided by the following principles, which we hold to be correct:
19
(1) the antagonism which will defeat maintenance of a class action must relate to the subject matter in controversy, as when the representative's claim conflicts with the economic interests of the class; (2) disagreements as to the remedy do not necessarily defeat a class action, especially in Title VII cases where the Court has broad powers in fashioning appropriate remedies; (3) the mere existence of political divisions or factionalism within a union does not require class decertification; (4) disagreements as to the wisdom of a union member's suing the union are not a proper basis for decertification; (5) union officers are not necessarily disenabled from suing on behalf of union members when the interests asserted are solely the interests of members and employees; (6) evidence of antagonism based on membership votes should be carefully scrutinized and should be clear and convincing; and (7) while questions of motive are secondary, the Court should be cognizant of the limitations of its supervisory powers and should be sensitive to the possible existence of ulterior motives which might jeopardize the interests of the class.8
20
In its carefully considered memorandum opinion, the District Court concluded that the frictions described above did not reach the subject matter of the suit; that plaintiffs' past history as union officers would not preclude a vigorous prosecution of the claims of class-based discrimination; that the evidence of lack of enthusiasm by other union employees was not reliable and in any event was not controlling; and that plaintiffs' private motives would not affect the merits of the case. No usurpation of power can be gleaned from these conclusions, singularly or in the aggregate, and a case for mandamus to review class action certification has not been made out on grounds of antagonism alone.9
21
The District Court conditionally certified the class under Rule 23(b)(2). Rule 23 requires that in addition to finding, as here, that the four prerequisites of Rule 23(a)10 have been met, there must be present one of the three alternative requirements of Rule 23(b). The District Court found that the provisions of subdivision (2) of Rule 23(b) had been satisfied:
22
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole(.)
23
This provision was incorporated into Rule 23 with the 1966 amendment "primarily to facilitate the bringing of class actions in the civil rights area." 7A C. Wright and A. Miller, Federal Practice and Procedure § 1775, at 24 (1972).
24
Rule 23(b)(2) certification is appropriate when plaintiffs seek injunctive relief from acts of an employer "on grounds generally applicable to the class". Sex discrimination in employment is such a ground. See Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir. 1977); Bowe v. Colgate-Palmolive Co.,416 F.2d 711 (7th Cir. 1969). That back pay may be a form of relief sought incidental to injunctive relief will not preclude certification under Rule 23(b)(2). Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.), cert. denied, 97 S.Ct. 182 (1976); Society for Individual Rights, Inc. v. Hampton, 528 F.2d 905, 906 (9th Cir. 1975); Rich v. Martin Marietta Corp., 522 F.2d 333, 341 (10th Cir. 1975); Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975); Nix v. Grand Lodge of Int'l Ass'n of Machinists, 479 F.2d 382, 385 (5th Cir.), cert. denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d 316 (1973); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); Bowe v. Colgate-Palmolive Co., supra, 416 F.2d at 720; Rodriguez v. Swank, 318 F.Supp. 289, 295 (N.D.Ill.1970), aff'd without opinion, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971). The District Court found that the fair representation requirement of Rule 23(a)(4) had been satisfied and we have held petitioner's mandamus challenge on that issue to be inadequate; hence there is no need to consider petitioner's argument that certification under Rule 23(b)(2) was inappropriate because of the presence of antagonism.
B. Notice Requirements
25
Under a Rule 23(b)(2) certification the class members are not entitled to notice of the action and are not entitled to "opt out" of the action if they so choose, as they would be under a Rule 23(b)(3) certification.11 See Rule 23(c)(2). Because of its concern that some members of the class who did not favor a suit against the union or were less than trustful of plaintiffs' ability to represent the common interests of the class against petitioner and the unions would be "locked in," the District Court ordered that an appropriate notice be given to all members of the class. Such notice would inform the class members not only of the pendency of the litigation, but also of possible back pay awards and the right of individual class members to intervene and participate directly in the suit. Petitioner charges that certification under Rule 23(b)(2), combined with the District Court's proposed notice, puts an onerous burden of intervention on unwilling members of the class and that the District Court will "potentially be fomenting litigation unfairly against the defendants." This, petitioner argues, is a usurpation of power warranting relief by mandamus. We reject this contention.
26
We think that petitioner misconceives the purpose of the District Court in directing that notice be given. Rule 23(d)(2) specifically authorizes the District Court to require "for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action(.)" The discretionary power to require notice in a Rule 23(b)(2) action thus serves as a "safety valve" which should be utilized "freely to protect the rights of the absentee members" to assure that a judgment in a Rule 23(b) (2) action will be "binding on all the class members." 7A C. Wright and A. Miller, Federal Practice and Procedure § 1786, at 144 (1972). See Sanders v. John Nuveen & Co., 463 F.2d 1075, 1082 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). Far from usurping power, the District Court in this case acted to protect the interests of absentee members under a clear grant of discretionary power. We cannot read into this action a tacit recognition that it was done to alleviate a presently existing antagonism within the class with respect to the subject matter. It was rather a prudent safeguard against future antagonism which might affect the binding nature of a Rule 23(b)(2) judgment. Moreover, the District Court retains the power to decertify the class or create subclasses if subsequent events indicate the need to do so. See Donaldson v. Pillsbury Co., supra, 554 F.2d at 832, n. 6.
III. Conclusion
27
We emphasize that petitioner's claims were reviewed here under the narrow standard applicable to a mandamus proceeding.12 We do not say that the result would have been different under a 28 U.S.C. § 1292(b) interlocutory review, but it is clear that this case does not present the extraordinary situation for which mandamus is reserved. See In re Cessna Distributorship Antitrust Litigation, supra, 532 F.2d at 68; Stein v. Collinson, 499 F.2d 91, 95 (8th Cir. 1974); Gialde v. Time, Inc., 480 F.2d 1295, 1302 (8th Cir. 1973).
28
The petition for writ of mandamus is denied.
1
The Honorable Earl R. Larson, United States District Court for the District of Minnesota
2
This litigation began in December, 1974. In addition to their Title VII claims under 42 U.S.C. § 2000e et seq., plaintiffs Delores Elliott and Helen Ambrose asserted claims for violation of the Equal Pay Act of 1963, 29 U.S.C. § 206, and the Labor Management Relations Act, 29 U.S.C. § 157 et seq. They sought to represent a class consisting of women who were, are, might have become, or might become members of the International Brotherhood of Electrical Workers, AFL-CIO (IBEW) and Local 2047 and who were, are, might have become, or might become employees of Univac at its St. Paul plants since July 2, 1965, and who have been, are, or might be adversely affected by the practices of which they complained
Petitioner filed a motion asking the District Court to determine, inter alia, the propriety of bringing this suit as a class action. After submission of memoranda and oral argument, the District Court issued a memorandum order on May 27, 1976. It denied certification to the claims under the Equal Pay Act and Labor Management Relations Act, but conditionally certified the Title VII action for class action status under Fed.R.Civ.P. 23(b)(2). It defined the class to include former, present and future female employees of Univac employed at its plants in and near St. Paul, Minnesota, who are, have been, or will be members of Local 2047 and IBEW during the period commencing July 2, 1965, and continuing to the date of trial.
3
At oral argument, counsel for petitioner explained that this Court appeared to be inhospitable to interlocutory appeals from class action determinations. Because we do not accept that evaluation, we add these additional comments
The impact of a class action determination on the dimensions of the trial and the exposure to liability can be enormous. See Schmidt v. Fuller Brush Co., 527 F.2d 532, 535 (8th Cir. 1975). This fact of life must be balanced against general judicial policy disfavoring piecemeal litigation. See Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). When a close question of class action vel non is presented, either under the facts or under statutory construction, district courts ought to be more receptive to certifying critical questions for interlocutory review if it fairly appears that an immediate appeal may materially advance the ultimate termination of the litigation. It is a rare case in which a class action determination will qualify as a final order appealable under the collateral order doctrine. As a result, a party aggrieved by a class action determination and denied a section 1292(b) certification is relegated to seeking mandamus. This seriously narrows the scope of appellate review at a critical stage in the litigation and casts upon the district judge the uncomfortable role of a respondent, including the task of responding unless he chooses to rely upon the attorneys for the opposing party. We think that the legitimate objectives of class action litigation can best be served by our disclaiming any hostility toward interlocutory certifications in situations in which the district court should reasonably conclude that "the gravity of the class action certification issue require(s) an expedited hearing by this court." In re Cessna Aircraft Distributorship Antitrust Litigation, 518 F.2d 213, 216 (8th Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 363, 46 L.Ed.2d 282 (1975). See, e. g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 169-72, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir. 1975); Katz v. Carte Blanche Corp., 496 F.2d 747 (3rd Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); Herbst v. International Tel. & Tel. Corp., 495 F.2d 1308, 1311-13 (2d Cir. 1974).
4
Fed.R.Civ.P. 23
5
The discriminatory practices and policies alleged by plaintiffs include, but are not limited to, the following:
(a) failing and refusing to hire females on an equal basis with men at a rate of pay equal to that paid males;
(b) establishing and maintaining job classifications which result in exclusion or limitation of females because of their sex from jobs and job opportunities for which they are otherwise qualified and for which sex is not a bona fide occupational qualification;
(c) failing and refusing to provide training for females because of their sex for positions for which sex is not a bona fide occupational qualification;
(d) failing and refusing to promote females because of their sex to positions for which sex is not a bona fide occupational qualification;
(e) establishing and maintaining seniority systems which result in more frequent lay-off of females from jobs than males;
(f) failing and refusing to pay females on an equal basis with men for substantially equal work;
(g) using subjective bases for promotion which result in discrimination against females in promotion. These subjective bases include, but are not limited to, the use of subjective and discriminatory reports and opinions from supervisors, invalid tests, invalid job requirements, repeated failures to consider the seniority of females when all other criterion (sic) and factors are relatively equal between applicants for promotion, and subjective and discriminatory granting of on-the-job training in promotion;
(h) failing and refusing to hire females for certain jobs, having females do jobs which are lower in pay, and by hiring females to do jobs which have fewer chances for promotion than jobs for which males are hired.
6
Rule 23(a) establishes these prerequisites to maintenance of a class action:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
7
The issue of antagonism is occasionally considered in connection with Rule 23(a)(3)'s requirement of typicality. See, e. g., Windham v. American Brands, Inc., 68 F.R.D. 641, 649 (D.S.C.1975), rev'd on other grounds, 539 F.2d 1016 (4th Cir. 1976); Kinsey v. Legg, Mason & Co., 60 F.R.D. 91, 99 (D.D.C.1973); Cannon v. Texas Gulf Sulphur Co., 47 F.R.D. 60, 63 (S.D.N.Y.1969). It will suffice for our purpose to consider this issue under Rule 23(a)(4), where it is clearly material
8
See Redmond v. Commerce Trust Co., 144 F.2d 140, 151-52 (8th Cir.), cert. denied, 323 U.S. 776, 65 S.Ct. 187, 89 L.Ed. 620 (1944). See generally C. Wright and A. Miller, 7 Federal Practice and Procedure § 1768 (1972)
9
The District Court appropriately observed:
Should genuine conflict arise in the future, the Court, being advised by counsel for the class, may remove any antagonism or, if necessary, decertify the class.
10
See note 6, supra
11
Under a Rule 23(b)(3) certification, the court must find that:
the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
12
Thus circumscribed, we nonetheless express our concerns about the marginal nature of the class representatives in this case. We are confident that the experienced district judge will continue to monitor the performance of the class representatives and will take appropriate action if antagonisms going to the merits of the claim surface within the class. See note 9, supra
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708 N.W.2d 436 (2006)
474 Mich. 1055
Kathryn MEKLIR, Trustee of the Kathryn Meklir Revocable Living Trust, James Ginzler, Hillary Shaw, Trustee of the Hillary Shaw Revocable Living Trust, Linda Winkelman, individually and as parent and guardian of Jacklyn Winkelman and Julie Winkelman, Roger Winkelman, individually and as parent and guardian of Jacklyn Winkelman and Julie Winkelman, Brenda Worth Passer, Sandford Passer, Norman Hubert, Esther Hubert, Wendy Hubert, Ira Mondry, Rex Lanyi, and Kolman Verona, Plaintiffs-Appellees, Cross-Appellants,
v.
Stanley G. FELDMAN, and Stanley Ltd., Inc., Defendants-Appellants, Cross-Appellees, and
J.C. Penney Company, Inc., Defendant-Appellee, Cross-Appellee, and
Robert Ball, individually and d/b/a RJB Sales, Inc., Defendants.
Docket No. 129296 & (74), COA No. 253089.
Supreme Court of Michigan.
January 31, 2006.
On order of the Court, the application for leave to appeal the July 5, 2005 judgment *437 of the Court of Appeals and the application for leave to appeal as cross-appellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. This order is without prejudice to defendants Stanley G. Feldman's and Stanley Ltd., Inc.'s right to contest the total amount of plaintiffs' damages.
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817 F.2d 1290
43 Fair Empl.Prac.Cas. 1465,43 Empl. Prac. Dec. P 37,178, 55 USLW 2678
Beatrice WILLIAMSON, Plaintiff-Appellee--Cross-Appellant,v.HANDY BUTTON MACHINE COMPANY, Defendant-Appellant--Cross-Appellee.
Nos. 86-2019, 86-2049.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 22, 1987.Decided May 4, 1987.Rehearing and Rehearing En Banc Denied June 11, 1987.
Donald L. Johnson, Johnson & Schwartz, Chicago, Ill., for defendant-appellant-cross-appellee.
Mark E. Furlane, Gardner, Carton & Douglas, Chicago, Ill., for plaintiff-appellee-cross-appellant.
Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
1
Beatrice Williamson worked for 21 years at the Handy Button Machine Co., principally as an assembly operator. She was fired in 1977 after she failed to reply to a telegram from Handy Button. The jury in this case under 42 U.S.C. Sec. 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., was entitled to find that Williamson did not answer the telegram because she had been driven to distraction by racial discrimination and the abusive behavior of her supervisor. She has been unable to work since. She recovered $150,000 in compensatory and $100,000 in punitive damages. While the jury was deliberating on the case under Sec. 1981, the district judge found that Williamson had not established sex discrimination in violation of Title VII and had demonstrated only two episodes of racial discrimination, which had not caused the discharge. The judge nonetheless declined to set aside the jury's verdict, holding that its view of the evidence was as permissible as his own.
2
* The evidence, which we narrate in the light most favorable to the verdict, shows that during her entire career at Handy Button, Williamson was assigned unskilled entry-level work, although she was able to do higher-paying work such as inspection (and did so on occasion). Between 1968 and 1976 Williamson repeatedly applied for work as an inspector and saw white employees with less seniority promoted over her. In 1975 she and about ten other assembly workers were demoted to the sorting department because of a slowdown in work at the plant. Sorting is a dirty, boring job. Although sorting and assembly pay the same base wage, assemblers may earn a maximum bonus of $12 per week. Most weeks Williamson had earned the maximum bonus; she was not eligible for a bonus in sorting. Williamson was the only black employee demoted--and the most senior. Under the collective bargaining agreement, she should have been the first returned to assembly. But as work picked up, only white employees junior to Williamson were returned to assembly. She protested to the supervisor of assembly, to no avail.
3
In July 1975, as white employees were being returned to the assembly department, Williamson began to have uncontrollable crying spells. By February 1976 she was under medical care for depression and was taking drugs for the condition. She began to stay home ill. In late 1976 another inspector's job was filled by a white employee junior to her, without any opportunity to apply for the vacancy, despite the collective bargaining agreement's requirement that openings be posted for applications. Williamson filed a charge of discrimination with the EEOC; Handy Button learned of this charge no later than January 1977. In early March 1977 Williamson took a week of vacation time she had accrued, informing the company at the last minute. When she returned, supervisor Mervyn Mendel handed her a stiff note denying permission to take the vacation because she had not given "advance notice". The firm had no requirement that employees seek permission before taking vacations. (The memo was a blot on her record but had no immediate effect on her income, because the vacation had been unpaid.) On March 15, 1977, Williamson went to the upstairs washroom (where she had been assigned a locker by the company) to remove her work clothes and wash up at the end of the day. Mendel confronted her after she left and in loud, scatological language berated her for using the upstairs washroom rather than a different one.
4
This event, according to a psychiatrist's testimony, was the "straw that broke the camel's back." Williamson went home, never to return to work. The psychiatrist stated that she had a "major depressive disorder" that was "a 10 on a 10-point scale" of seriousness. On March 28 the firm sent her a telegram instructing her to call the company by March 30 to let it know when she would return to work. She did not respond and was fired. The jury could conclude that, as a result of Mendel's handiwork, Williamson was unable to understand the telegram, let alone to respond. Williamson testified that although she had been able to read, for many years after the incident she could neither read nor understand anything except the Bible. The firm did not call to find out why she had not answered the telegram, and it did not reinstate her after a psychiatrist explained the lack of response--although it had done both for other employees. Williamson, who was 52 when fired, has not been able to work since. Handy Button does not contend that she is a malingerer. (She worked as a teachers' aide for a year but was emotionally unable to continue.) The Social Security Administration concluded in 1978 that she is completely disabled and awarded disability benefits.
5
The jury answered seven interrogatories. It found that Williamson (1) was denied a transfer back to assembly because of her race; (2) was denied promotion to inspector because of her race; (3) was denied a week's vacation because of her race; (4) was refused permission to use the upstairs bathroom because of her race; (5) was "berated and verbally abused" because of her race; (6) was fired because of her race; and (7) was treated adversely because of her complaint alleging discrimination. The jury fixed damages at $10,000 for psychological disability and emotional pain, $130,000 for "earnings lost and the present cash value of the earnings reasonably certain to be lost in the future", and $10,000 for the expenses of medical and psychological treatment. It awarded $100,000 more as punitive damages. Handy Button conceded at oral argument that the compensatory damages are supported by the record, if the evidence demonstrates that Handy Button's discriminatory conduct caused Williamson's breakdown and discharge. It does. Whether it is more than minimally sufficient we need not say.
6
Handy Button insists that the judge's more confined view of the evidence controls because rendered first, while the jury was deliberating. Not so. Title VII proceedings are "equitable" and Sec. 1981 proceedings are "legal", so that the plaintiff has a right to a jury trial only on the Sec. 1981 claim. But when the two are tried together, the jury's verdict governs factual issues common to them. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.1986). The constitutional right to a jury trial may not be abridged by a court's deciding the equitable portion of a case first. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). Timing might be important if the Title VII claim had been filed as a separate suit, so that principles of preclusion applied to the Sec. 1981 claim. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333-37, 99 S.Ct. 645, 652-54, 58 L.Ed.2d 552 (1979). Ours is not a problem of preclusion, however, for there was but one trial. The jury's verdict governs.
7
The jury could infer discrimination. Handy Button never offered an explanation for keeping Williamson in the plant's lowest-paying job, despite her entitlement by seniority to the assembly job. It never offered an explanation for failing to promote her to inspector between 1968 and late 1976, when it first stated that it wanted inspectors to have high school degrees, itself a potential ground of liability. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The jury was entitled to infer discrimination from the fact that a qualified black employee repeatedly, and without explanation, was passed over in favor of whites for better jobs, including one to which the black employee was contractually entitled and in which she served competently. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This discrimination contributed to Williamson's mental deterioration. Perhaps she was unusually sensitive, but a tortfeasor takes its victims as it finds them. E.g., Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891); Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir.1983); Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 820 (7th Cir.1985). In some cases unusual sensitivity will enhance the loss; in others unusual hardiness will reduce it; payment of the actual damage in each case will both compensate the victim and lead the injurer to take account of the full consequences of its acts. (The injurer expects to pay the average injury caused by conduct of the sort.)
8
Williamson's breakdown led to her discharge. Handy Button played on this. The district court observed: "It was [Handy Button's] litigation strategy to agree that [Williamson] was emotionally disturbed and, indeed, the more disturbed the better. [Handy Button] seemed anxious to bring out and capitalize upon the suggestion of the psychiatrist that [Williamson] may even have been psychotic...." This led Handy Button to embrace "expert" testimony that has questionable value--see Bohen v. City of East Chicago, 622 F.Supp. 1234, 1243 n. 4 (N.D.Ind.1985), reversed in part on other grounds, 799 F.2d 1180 (7th Cir.1986) (" 'Experts' on this subject know no more than judges about what causes mental changes--which is to say that they know almost nothing.")--and to emphasize other evidence of instability. Perhaps Handy Button believed that if the jury thought Williamson crazy, it would see why Handy Button dismissed her. The risk was that the jury would conclude that Handy Button had driven Williamson to distraction; the jury so found.
9
Handy Button is liable under the civil rights laws for Williamson's principal injury--her continued inability to work--only if the emotional instability came from the racial discrimination. Handy Button might have tried to argue that Williamson's breakdown was attributable to boorish conduct by Mendel, her supervisor in 1977. Personal animosity, even monstrous conduct, is not actionable under Sec. 1981 and Title VII unless based on race. Dale v. Chicago Tribune Co., 797 F.2d 458, 465 & n. 9 (7th Cir.1986). A breakdown caused by non-racial offensiveness might explain why Williamson could not respond to the telegram and therefore support an award of damages until Williamson could have found another job (had she been emotionally stable), but it would not justify an award of a lifetime's lost income. Handy Button did not try to pry apart the racial and non-racial causes of Williamson's distress, however. It stood by as evidence of personal animosity came in, and it did not request limiting instructions or suggest that the jury be told to separate racial and other causes of Williamson's inability to work after she had been fired.
10
The evidence was not so thin that we must step in to protect defendants who did not protect themselves. Even if there had been no intervening acts of discrimination, the jury would have been entitled to find that the discriminatory failure to return Williamson to the assembly department was a cause of her breakdown. The jury also was entitled to infer that the vacation and washroom incidents, and the firm's refusal to call her or reinstate her after learning of the cause of her failure to respond, had race at their core. True, none of these events involved racial epithets, and the employer offered neutral explanations for each. But once a jury decides that an employer makes use of race in its everyday decisions--in this case, that it held Williamson's race against her over a decade--it is permissible to infer that race also explains other disparate treatment. Handy Button did not try to show, for example, that Mendel cursed white employees who used the upstairs washroom. The firm also was more tolerant of white employees who became ill. The jury's finding of liability must stand.
11
This makes it unnecessary to explore liability under Title VII for racial discrimination, because an award for racial discrimination under a different statute would be redundant. Williamson also charged that Handy Button engaged in sex discrimination, in violation of Title VII, by not promoting her to inspector. This question was not submitted to the jury under Sec. 1981, which does not deal with sex discrimination. The judgment on the sex discrimination claim could have a small influence on the award of damages. We affirm the district court's conclusions as not clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Benzies v. Illinois Department of Mental Health & Developmental Disabilities, 810 F.2d 146 (7th Cir.1987). This is one of many cases that could go either way.
II
12
The court gave this instruction on punitive damages:
13
If you find that the defendant was guilty of discrimination against the plaintiff because of her race or that defendant terminated plaintiff in retaliation for her having filed discrimination charges ..., and if you believe that justice and the public good require it, you may, in addition to any compensatory damages to which you find plaintiff entitled, award plaintiff an amount which will serve to punish the defendant and to deter others from the commission of like offenses.
14
The instruction left the jury at sea. Although the court gave some guidance on how to set the amount of punitive damages (by reference to punishment and deterrence), it offered none on when punitive damages are appropriate. Telling jurors to award punitive damages "if you believe that justice and the public good require it" is the equivalent of telling them to award punitive damages "if you want to." "Justice" and the "public good" are not terms with widely understood meanings. Handy Button did not object to this instruction. It objected to giving any instruction at all, which is not the same as objecting to the language of the instruction given. The objection must be sufficiently detailed to draw the court's attention to the defect. A blunderbuss objection does not do this.
15
No doctrine of "plain error" protects parties from the consequences of their decisions in civil litigation. E.g., Walker v. Maccabees Mutual Life Insurance Co., 753 F.2d 599, 602 (7th Cir.1985); Ramsey v. American Air Filter Co., 772 F.2d 1303, 1312 (7th Cir.1985). Compare City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256-57 & n. 12, 101 S.Ct. 2748, 2754 & n. 12, 69 L.Ed.2d 616 (1981) (potential exception if issue has been contested and error may be corrected without a new trial), with City of Springfield v. Kibbe, --- U.S. ----, 107 S.Ct. 1114, 1115-16, 94 L.Ed.2d 293 (1987) (appellate courts should not question the propriety of instructions given without objection). Failure to object may even have been part of Handy Button's litigation strategy. It sought to blame Williamson's discharge on her emotional state, and Handy Button therefore may have believed that an open-ended instruction gave its argument maximum play. (Handy Button does not object to the instruction even now; it simply says the evidence is too weak.) In retrospect the choice was unwise, but such second-guessing is not a ground on which to set aside verdicts. This instruction therefore states the law of the case. "[I]n a civil case, each party must live with the legal theory reflected in instructions to which it does not object." Will v. Comprehensive Accounting Corp., 776 F.2d 665, 675 (7th Cir.1985).
16
The evidence was sufficient to support an award of punitive damages under this instruction. (It is hard to see what evidence would be insufficient, provided the jury found liability and awarded compensatory damages.) Handy Button does not contend that an award of $100,000 is excessive. When an offense is concealable or difficult to prosecute successfully, it is necessary to multiply the damages to deter wrongdoers. The multiplier of 1.67 produced by this award is hardly the work of a runaway jury. The law has many double and treble damages provisions. Handy Button argues only that there should have been no punitive award. That argument cannot succeed, given the instruction to the jury.
17
Handy Button has preserved only an objection to a punitive damages instruction of any flavor. A party may challenge the sufficiency of the evidence even without objecting to the content of the instructions. Dual Manufacturing & Engineering, Inc. v. Burris Industries, Inc., 619 F.2d 660, 662-63 (7th Cir.1980) (en banc). The evidence was sufficient to permit the submission of the question on an appropriate instruction, informing the jury that the award of punitive damages should be reserved for wilful wrongdoing or reckless indifference to the plaintiff's known rights. See Smith v. Wade, 461 U.S. 30, 51-55, 103 S.Ct. 1625, 1637-38, 75 L.Ed.2d 632 (1983) (a case decided under Sec. 1983, but equally applicable to Sec. 1981, see Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 514 (7th Cir.1986)). The jury was entitled to find that Handy Button had been discriminating against Williamson for a decade. It had passed her over for promotion many times, and later it kept her in the sorting department despite both her protests and the seniority rule in the collective bargaining agreement. This extended course of conduct suggests an official policy of discrimination as opposed to the work of a renegade supervisor. The rule against racial discrimination in employment is well understood; no employer has a good faith belief that discrimination is lawful. Cf. Walton v. United Consumers Club, Inc., 786 F.2d 303, 308-12 (7th Cir.1986) (discussing other definitions of "wilful"). We sustained an award of punitive damages in Yarbrough on a thinner record.
18
Smith v. Wade suggests that any conduct violating Sec. 1983 may support an award of punitive damages. This is deceiving, however, because the Court also observed that the plaintiff under Sec. 1983 must surmount the defense of official immunity (461 U.S. at 55, 103 S.Ct. at 1639). The complete rule applicable to a defendant without the formal benefit of immunity therefore may be that intentional, illegal conduct may support an award of punitive damages when the application of the law to the facts at hand was so clear at the time of the act that reasonably competent people would have agreed on its application. See Soderbeck v. Burnett County, 752 F.2d 285, 289-91 (7th Cir.1985) (punitive damages usually depend on specific intent to violate a knowable right). Cf. Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir.1987). An approach of this character still supports the submission of the question to the jury, given the clarity of the rule against racial discrimination in employment.
III
19
Williamson asked the district court to add prejudgment interest to the award of back pay. The court declined, explaining: "The verdict, both compensatory and punitive, is in the upper range of what can reasonably be sustained. Adding interest would, in the court's view, result in an excessive award." The compensatory award in question is $130,000, which covers both past and future earnings and the reduction in the value of Williamson's pension. It is hard to see how $130,000 could be thought in the "upper range". Williamson was five days from her 53d birthday when fired in 1977. She was making about $13,000 per year. Had she worked as a sorter from April 1977 through the time of trial in March 1986, she would have earned a little more than $127,000 (this includes the increases negotiated by the union in subsequent collective bargaining agreements and excludes her earnings as a teachers' aide). Employment for another three years, until retirement in 1989 at age 65, had a present value of about $54,274 at the time of trial (using the 1986 wage of $18,820 and discounting at 2% per year). The loss of 13 years' work reduced Williamson's pension by about $2,700 per year, starting in 1989. Considering Williamson's life expectancy, that reduction had a present value of about $24,000 at the time of trial. These computations would have supported an award of some $205,000 for lost income.
20
We also disagree with the premise of the district court's decision--that a court has discretion in Sec. 1981 litigation to deny an award of prejudgment interest on an award of back wages because the court does not approve of the jury's award. Under 42 U.S.C. Sec. 1988 a federal court is supposed to follow principles of state law when federal law does not supply a rule of decision. We observed in Hunter, 797 F.2d at 1426, that the common law requires judges to add prejudgment interest to awards of back pay. Neither the district court nor Handy Button cited any contrary statement of the law in Illinois, the forum state. We strongly hinted in Hunter that federal law would require the addition of prejudgment interest even if state law did not, because prejudgment interest is necessary to make the award fully compensatory. Id. at 1425-27. The award should make the victim whole. Williamson lost $9,436.93 for the nine months she was out of work in 1977. An award of $9,436.93 in 1987 does not make her whole. If she had received the money as wages in 1977 and invested it at 10%, readily available during those years on safe investments, she would have had $24,547.00 ten years later. (We disregard taxes.) A return of 15%, which was available on many investments, would have produced $38,286.87 in the same period. The increase substantially exceeds the 1.67 multiplier produced by the punitive damages. Handy Button had Williamson's money during these ten years and has been able to earn the market return. If Handy Button can turn over only $9,436.93, it has made a tidy profit on the arrangement. The effect of prejudgment interest on the wages for later years is less, but still significant.
21
We have held that prejudgment interest is part of full compensation under other statutes, necessary to carry out the federal policies of compensation and deterrence. E.g., City of Chicago v. Department of Labor, 753 F.2d 606, 608 (7th Cir.1985) (Comprehensive Employment and Training Act); Heiar v. Crawford County, 746 F.2d 1190, 1200 (7th Cir.1984) (ADEA); Myron v. Chicoine, 678 F.2d 727, 733-34 (7th Cir.1982) (Commodities Exchange Act). Twice in the last four years, the Supreme Court has held that "[p]rejudgment interest is an element of complete compensation". West Virginia v. United States, --- U.S. ----, 107 S.Ct. 702, 706, 93 L.Ed.2d 639 (1987) (contractual debt); General Motors Corp. v. Devex Corp., 461 U.S. 648, 655-56, 103 S.Ct. 2058, 2062-63, 76 L.Ed.2d 211 (1983) (damages for infringement of patent). Money today is simply not a full substitute for the same sum that should have been paid some time ago. Prejudgment interest therefore must be an ordinary part of any award of back pay (or other incurred expense) under Sec. 1981.
22
"Ordinary" does not imply inevitable. Devex allowed that an award might be inappropriate at some times. See also Heritage Homes v. Seekonk Water District, 648 F.2d 761, 764 (1st Cir.1981) (the only other appellate case dealing with prejudgment interest under Sec. 1981), vacated on other grounds, 454 U.S. 807, 102 S.Ct. 81, 70 L.Ed.2d 76, reaffirmed, 670 F.2d 1 (1982). Substantial, unexplained delay in filing suit might be such a reason, because delay shifts the investment risk to the defendant, allowing the plaintiff to recover interest without bearing the corresponding risk. Williamson, though, filed this suit in 1978. The size of the jury's verdict may be another, if only the supposition that the jury has compensated plaintiff for the time value of money can explain the result. This verdict is not so large; it does not seem to cover even actual loss.
23
There is one other reason why prejudgment interest may be denied--because "the amount of backpay is not readily determinable." Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (9th Cir.1984). Interest is not available on lost future wages and pensions; the time value of money is taken into account when these are discounted to present value. Only back pay and expenses incurred in the past may be augmented by prejudgment interest. Yet Williamson proposed a verdict form that lumped past and future wages together. The judge used the form Williamson proposed, and the jury returned a verdict that does not distinguish past and future sources of loss. The district judge did not rely on this when denying Williamson's motion, but we must consider the implications of the general award of damages.
24
There are at least four ways to deal with the verdict's aggregation of past and future injury. One is to deny prejudgment interest on the ground that Williamson has made the "amount of backpay not readily determinable." A second, which Williamson proposes, is to treat the amount of back pay she computed ($127,000) as the amount the jury awarded, leaving the rest ($3,000) as the award for future loss. A third, the mirror image, would be to subtract the amount Williamson claimed for future loss (roughly $54,000 for pay and $24,000 for the reduction in the value of the pension) from the award of $130,000, leaving $52,000 as the amount of back pay. Still a fourth method would be to divide the amount of back pay Williamson sought ($127,000) by the total award she requested (roughly $205,000), producing a quotient of 0.62 as the portion of the request representing back pay. Sixty-two percent of $130,000 is about $80,500.
25
Williamson did not ask for prejudgment interest until after the verdict had been returned, but this is not dispositive. Fed.R.Civ.P. 54(c) provides in part: "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which a party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Rule 54(c) was designed to divorce the decision what relief to award from the pleadings and arguments of counsel; the court is to determine, and award, the right relief in each case even if the complaint is silent on the question. The question is not whether Williamson was tardy but whether the computation is impossible or hopelessly speculative.
26
The third method of dealing with the verdict suggests that the jury awarded at least $52,000 in back pay. That amount appears to be "readily determinable". The second method, on the other hand, is far too favorable to Williamson. It resolves all doubt in her favor (just as the third method resolves all doubt against her). Williamson's own verdict form produced the difficulty, so doubt should be resolved in favor of Handy Button. The hard choice is between the third and the fourth methods. The fourth is most likely to be accurate over the run of cases, but the third will induce litigants to take more care in proposing instructions to the jury. Neither method can be said to be "wrong", which means that the choice rests within the discretion of the district court. See Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 831 (7th Cir.1985); Wisconsin Real Estate Investment Trust v. Weinstein, 781 F.2d 589, 597-98 (7th Cir.1986). The district court should exercise that discretion on remand. Moreover, because the district judge denied the request for interest without deciding whether an amount of back pay was reasonably ascertainable, it may be that something in the record casts additional light on the subject. We do not tie the district judge's hands. If some fact or consideration the parties have not drawn to our attention makes the ascertainment of the portion of the award representing back pay too complex, the district court may choose to award none.
27
One could say that unless the amount of back pay is exactly determinable no interest should be awarded. That rule appears in contract cases, where common law courts disallowed prejudgment interest on disputed contract damages unless the sum in question had been liquidated or been made certain in another way. Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370-71 (7th Cir.1985), collects both cases and secondary sources. The award of back pay under Title VII is an "equitable" rather than a "legal" remedy, however, and the common law requirement of certainty has never been applied to it. If it were, it would be impossible to award interest even if the jury had returned separate verdicts in this case on back pay, front pay, and the value of the pension. Williamson was out of work for a decade; how much of the back pay should be apportioned to each year? Without an answer to that question, it is impossible to compute prejudgment interest, which is higher on the salary lost in 1977 than the salary lost in 1982. Absolute certainty is unavailable no matter what kind of instruction is given to the jury; it is also unnecessary. No purpose would be served by allowing the wrongdoer to keep the entire time value of the money, just because the exact amount is subject to fair dispute. Once we know that back pay is at least some minimum, it is safe to award interest on that amount.
28
It is also significant that the district judge did not deny interest on the ground that it was too hard to figure out what the jury had awarded as back pay. The judge gave a different reason: that the jury had awarded too much money. That reason is reviewable and wrong. Had the district judge given the reason Handy Button advances, we might be inclined to defer to it; but he did not, and we hesitate to affirm a judgment on a ground that was neither offered to the district judge nor adopted by him. Handy Button's briefs in this court do not maintain that it is too hard to determine what the jury awarded as back pay; Handy Button instead supported the district court's rationale and added the thought that interest should be discretionary. A court should not decide a civil case on the basis of an argument made in neither the district court nor the court of appeals.
29
If the district judge determines that it is possible to ascertain a minimum amount of back pay awarded, it will be necessary to apportion that sum. Each year's pay requires a different amount of prejudgment interest. The computational process, however, is the same in principle as the one used to discount future income (which occurs at different times in the future) to present value. The parties should be able to agree on this mechanical computation if the district court can determine how much back pay the jury awarded, allocate it among years, and fix the rate of prejudgment interest.
30
The jury's verdict of $250,000 is affirmed to the extent it is challenged by Handy Button's appeal, No. 86-2019. The judge's disposition of the claim of sex discrimination under Title VII, one subject of appeal No. 86-2049, is affirmed. The denial of prejudgment interest, the other subject of appeal No. 86-2049, is reversed, and the case is remanded for further proceedings consistent with this opinion. Williamson shall recover her costs in both appeals. Circuit Rule 36 shall not apply on remand.
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248 A.2d 677 (1968)
William R. FRANKLIN, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.
Nos. 4349, 4350.
District of Columbia Court of Appeals.
Argued June 3, 1968.
Decided December 18, 1968.
*678 David Mardan Weitzman, Falls Church, and Ralph J. Temple, Washington, D.C., for appellant.
David P. Sutton, Asst. Corp. Counsel, with whom Charles T. Duncan, Corp. Counsel, Hubert B. Pair, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.
Before MYERS, KELLY and FICKLING, Associate Judges.
KELLY, Associate Judge:
After being stopped for operating a vehicle emitting excessive smoke, appellant was taken to the Fourteenth Precinct because he did not have a registration certificate for the car. He did produce an operator's permit bearing the name "Wilson Franklin" and a check with the Department of Vehicles revealed that this permit had not been revoked. However, two officers at the precinct recognized appellant as William Russell Franklin and notified the arresting officer of his correct name. According to government testimony, appellant then said " You m____r f____s keep out of this" and attempted to strike one of the officers. In the ensuing struggle he was *679 subdued, placed in a cell, and later transported to the hospital.
Appellant was charged and convicted of operating a motor vehicle after his permit had been revoked and of disorderly conduct.[1] Numerous errors are alleged, most for the first time on appeal.[2] We therefore discuss briefly only the principal claim of error as to each conviction.
I
Admittedly, appellant's permit had been revoked in 1961 for an accumulation of points and never restored. During a substantial part of the intervening time appellant had been in prison as a result of a conviction which was later set aside. After his release in 1964 appellant sought on numerous occasions to have his permit restored. Since these attempts were unsuccessful, and because he needed a permit in order to support his family, he obtained a permit under the name of "Wilson Franklin".
Appellant contends that the statute authorizing revocation of permits, D.C.Code 1967, § 40-302, is an unconstitutional delegation of legislative authority because it fails to set forth adequate standards for either an initial revocation or for reissuance of a permit after revocation. He then argues that since the initial revocation and subsequent denials of his application for reissuance of a permit were made under a constitutionally deficient statute, he was justified in driving on a revoked permit, especially since driving a car was necessary to his employment.
La Forest v. Board of Commissioners, 67 App.D.C. 396, 92 F.2d 547 (1937), upheld the constitutionality of the precursor of what is now D.C.Code 1967, § 40-302.[3] In La Forest the court interpreted the statute, which allows revocation or suspension of an operator's permit for any cause deemed sufficient, to permit such revocation or suspension only for violations of usual and reasonable traffic regulations. That holding controls here, and we are not disposed to accept appellant's suggestion that we overrule it. Since the statute, as interpreted, is not an illegal delegation of authority by the legislature, appellant was obligated to seek judicial remedy for an alleged wrongful denial of his license to drive, cf. Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953), and he cannot now collaterally attack either the initial revocation[4] or the subsequent denials of his applications for the reissuance of his permit in an effort to justify his unilateral decision that he was entitled to operate a motor vehicle without a valid permit.
II
The conviction for disorderly conduct is also challenged on constitutional grounds. Appellant claims it is impermissible to proscribe profanity pro se, and argues that to convict him of disorderly conduct there must be a showing that the words used tended to provoke a breach of the peace. While our opinion in Williams v. District of Columbia, D.C.App., 227 A.2d *680 60 (1967),[5] suggests the contrary, we will assume the correctness of appellant's position here.
According to the statement of proceedings and evidence appellant was charged "with disorderly conduct in violation of § 22-1107, D.C.Code 1961."[6] The information reads:
William R. Franklin late of the District of Columbia aforesaid, on or about the 5 day of December in the year A.D. nineteen hundred and sixty-six in the District of Columbia, aforesaid, and on 4135 Benning Road, north, east, [inked out] did then and there use profane language, indecent and obscene words and engage in disorderly conduct; [inked out] to wit: fighting in said street, [inked out] did engage in loud and boisterous talking and other disorderly conduct. [inked out]
Contrary to and in violation of an Act of Congress Police Regulation in such case made and provided, and constituting a law of the District of Columbia.
Although the court did not specify the basis of its finding of guilt, appellant could not have been convicted of engaging in loud and boisterous talking and other disorderly conduct since the requisite element of congregating and assembling was neither charged nor proved. Kinoy v. District of Columbia, D.C.Cir., 400 F.2d 761 (1968). Nor could he have been convicted of fighting in the street as the proof was that the incident occurred inside the police station. He must therefore have been convicted of the use of profane, obscene and indecent language, and the arguments in the briefs are confined to this one aspect of appellant's conduct.
"[L]ewd, profane and obscene words are beyond the protection of the First Amendment." Duncan v. United States, D.C.App., 219 A.2d 110, 112 (1966). See also, Rockwell v. District of Columbia, D.C.Mun.App., 172 A.2d 549 (1961). As stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942):
[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
There can be no doubt that the words uttered by appellant to the police officers were indecent, obscene, and patently offensive "fighting words" whose very use not only inflicts injury but also clearly tends to provoke an immediate breach of the peace. The epithet did, in fact, precede and precipitate an altercation between appellant and the police, in a public place, and in the presence of other members of *681 the public. We are therefore of the opinion that under the circumstances of this case, giving the statute the construction urged by appellant, the evidence supports the conviction of disorderly conduct.[7]
Affirmed.
NOTES
[1] A charge of obtaining a permit by misrepresentation was dismissed on motion at the close of the government's case on the ground that the government had not proved that the signature on the application for the permit was that of appellant. A second disorderly conduct charge was nol-prossed by government counsel prior to trial. Appellant was also convicted of the excessive smoke offense but presents no argument as to this charge on appeal.
[2] See Bunter v. United States, D.C.App., 245 A.2d 839 (1968).
[3] See also Ritch v. Director of Vehicles & Traffic of D. of C., D.C.Mun.App., 124 A.2d 301 (1956).
[4] Abbott v. District of Columbia, D.C. Mun.App., 154 A.2d 362 (1959).
[5] Aff'd D.C.Cir., (No. 20,927, decided June 28, 1968), rehearing en banc held November 6, 1968. Williams was tried upon an information containing a breach of the peace clause and he was convicted of using profane, indecent and obscene words under circumstances such that a breach of the peace might be occasioned. The en banc decision should resolve the question of the constitutionality of the statute and of the necessity to show a tendency to incite a breach of the peace.
[6] The statute provides in pertinent part that "it shall not be lawful for any person or persons to curse, swear, or make use of any profane language or indecent or obsence words, or engage in any disorderly conduct in any street, avenue, alley, road, highway, public park or inclosure, public building, church, or assembly room, or in any other public place, or in any place wherefrom the same may be heard in any street, avenue, alley, road, highway, public park or inclosure, or other building, or in any premises other than those where the offense was committed * * *"
[7] Although we do not discuss other challenges to appellant's convictions, we have examined them all and find no error.
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636 F.2d 1215
Washington Group, Inc., Matter of
79-1644, 79-1653,79-1654
UNITED STATES COURT OF APPEALS Fourth Circuit
11/4/80
M.D.N.C., 476 F.Supp. 246
AFFIRMED
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304 F.2d 136
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.ESTATE of Robert Louis LONG, a Minor, by Louis F. Long, His Guardian, Respondent.COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Shirley Jean LONG, Respondent.COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.Frances M. LONG, Respondent.
Nos. 17470-17472.
United States Court of Appeals Ninth Circuit.
May 25, 1962.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum and Morton K. Rothschild, Attys., Dept. of Justice, Tax Division, Washington, D. C., for petitioner.
John E. Madden. Phoenix, Ariz., for respondent.
Before POPE, HAMLIN and DUNIWAY, Circuit Judges.
HAMLIN, Circuit Judge.
1
After receiving timely notices of deficiencies for income taxes from the Commissioner of Internal Revenue, respondent herein, covering the taxable years 1951 and 1953 taxpayers in No. 17470, No. 17471 and No. 17472, on June 4, 1956, filed timely petitions in the Tax Court for redeterminations of those deficiencies under the provisions of section 272(a) (1) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 272(a) (1).1 The answers of respondent were filed in August, 1956, and replies thereto were filed September 13, 1956. No further action was taken until August 4, 1960, when a notice was issued by the Tax Court setting the trial of the three cases for November 7, 1961, in Los Angeles. By letters addressed to taxpayers dated October 7, 1960, in Safford, Arizona, respondent among other things called to the attention of the taxpayers that it was incumbent upon the parties prior to the trial date to get together and to stipulate to all noncontroversial facts. The Commissioner further stated:
2
"It has come to the attention of this office that a Cause of Action has been filed in the State of Arizona entitled Mildred J. Long v. Louis F. Long, et al., * * *, and that there appears to be in dispute regarding the ownership of certain property, the income from which is involved in these instant Tax Court cases. In this regard, it may be stated that if the proof adduced in the trial of these related cases before the Tax Court * * * indicates that the income from certain ventures is properly attributable to parties other than the ones so charged in the deficiency notice the Commissioner will seek to amend his pleadings to conform to the proof. In that event the deficiency attributable to you could be increased or decreased.
3
"It is noted that you have not retained counsel to represent you in this matter. Please advise this office whether you intend to retain counsel, and also wishes concerning the stipulation of facts."
4
On October 11, 1960, attorney John E. Madden while in Washington, D. C., entered his written appearance in these matters and on the same date filed with the clerk of the Tax Court in Washington documents in each of the three cases entitled "Consent to Entry of Decision." In each of these documents the taxpayer concerned withdrew the allegations of error in the petition theretofore filed and consented to the immediate entry of decision for the full amount of the deficiencies claimed by respondent, including penalties, and requested the court to enter its decision accordingly.
5
On October 12, 1960, from his office in Phoenix, Arizona, Mr. Madden wrote to the regional counsel of respondent in Los Angeles advising him that he had been retained by taxpayers and that on October 11, 1960, he had filed in Washington a consent to the entry of decision in each of the cases. The letter further stated in part, "I was unsuccessful in my attempt to have judgments actually entered because of the unavailability of the Chief Judge." He further stated in the letter: "On my return I find that your letter of October 7, 1960, to my client Miss Frances Long has been transmitted to this office. In view of the fact that we have conceded that judgment may be entered in accordance with your claims it would appear that reply thereto is unnecessary."
6
In a letter dated October 13, 1960, Mr. Madden again wrote to the regional counsel of respondent as set out in the margin.2
7
In an order dated October 18, 1960, the Tax Court recited that a consent to the entry of decision had been filed upon October 11, 1960, and ordered the Commissioner to show cause on November 2, 1960, in Washington, D. C., why the court should not enter decisions in accordance with the request of the petitioners.
8
On October 31, 1960, the Commissioner filed in each case a document entitled "Motion for Leave to File Amendment to Answer." In the attached proposed amendment the Commissioner claimed additional tax of approximately $48,000 in each of the three cases.3 No affidavit accompanied the motion; and the only statement given as justification for making the motion was that information had been received subsequent to March 15, 1956, and the increased deficiencies were claimed accordingly.
9
After a hearing on November 2, 1960, the Tax Court disposed of the Commissioner's motion to amend by the following order dated November 3, 1960:
10
"The Commissioner filed a motion on October 31, 1960, for leave to file an amendment to his answer, accompanied by the proposed amendment. * * * The motion disclosed no adequate reason for filing such a belated amendment to the answer. The proposed amendment to the answer does not contain a clear statement of any facts upon which the Commissioner relies for affirmative relief and is not an adequate pleading under the Rules of this Court.
11
"* * * [A]fter due consideration, the Commissioner's motion to file an amendment to the answer is denied, and it is held that the Commissioner has not shown any cause why the Court should not enter a decision in accordance with the request of the petitioner. * * *"
12
The Tax Court then entered decision for the Commissioner for the amounts of taxes which were alleged to be due in the original deficiency notices.
13
On November 22, 1960, the Commissioner filed a "Motion to Vacate Orders and Decisions of November 3, 1960." This unverified motion unaccompanied by any affidavit set forth among other things the following: That each of the taxpayers are the children of Louis F. Long; that Louis F. Long between 1937 and 1953 acquired 18 theatres; that the agents of the Internal Revenue Service began their audit of the tax liabilities of Louis F. Long in October, 1954, "and were refused access to the books and records of the Long Theatres after April, 1955, and did not again have access to these books and records until the period November 9, 1960 to November 14, 1960"; that on August 24, 1960, after the date the instant cases were set for trial (August 4, 1960), a conference was held between representatives of the Internal Revenue Service and the attorney for Louis F. Long, and for the first time learned that Louis F. Long would contend in the tax fraud case against him that theatres acquired by him in the period 1937 to 1953 were actually partly acquired by him for his children and that some of this income should have been reported by his children; that the Commissioner was not put on notice that Louis F. Long would now claim that the income from the theatres was not properly allocated during the years 1951, 1952 and 1953; and finally that if Louis F. Long in the tax fraud case against him prevails in his contention that income from the theatres acquired in his name after 1937 should be partly allocable to his children, and the Tax Court's orders of November 3, 1960, become final, then the children will have avoided paying any income tax on such income.
14
The taxpayers herein filed a lengthy response to the motion to vacate with accompanying affidavits covering all facts and allegations of the Commissioner. The matter was set to be heard on December 14, 1960. At the hearing the court stated among other things:
15
"The court dismissed this case because the Commissioner didn't have any claim for an increased deficiency. Therefore there is no reason why the judgments should be any more than the Commissioner had determined in his Notice of Deficiency.
16
"The adversary had conceded all that, so it was all ready to close as far as the Court was concerned. No claim for an increased deficiency was filed.
17
"So then you filed a motion for permission to file an amended answer and the answers was one of those answers I kick out here regularly, to your knowledge, because it didn't make a reasonable statement of what your position on the amended answer would be."
18
The court made an order, dated December 16, 1960, which recited that the Commissioner's motion to vacate the decisions of November 3, 1960, had been heard on December 14, 1960, and which then recited that "[t]he motion sets forth no adequate reason for vacating the decisions, and after due consideration, the same is hereby denied."
19
On January 16, 1961, the Commissioner filed his "Renewed Motion to Vacate Orders and Decisions of November 3, 1960," which was accompanied by the "Motion for Leave to File Amendment to Answer" and also an "Amendment to Answer." The taxpayers filed a motion to strike these pleadings on the ground, among others, that they were filed without requisite leave of court.
20
Argument upon these motions was held on February 15, 1961. At the time of this argument counsel for taxpayers contended that Tax Court Rule 19(f), 26 U.S.C.A. (I.R.C.1954) § 7453 requiring special leave to file a motion to vacate more than 30 days after decision had not been complied with and that the various pleadings were not properly before the Tax Court for consideration. The Tax Court took the matter under advisement. On February 17, 1961, the Commissioner filed a document entitled "Motion for Special Leave to File Renewed Motion to Vacate Orders and Decisions of November 3, 1960."
21
On February 23, 1961, the Tax Court in an extended written order recited in detail the proceedings that had taken place. This order stated in part:
22
"The first question is whether the Commissioner in these motions has shown sufficient reason for the court in its discretion to grant special leave for the belated filing of the January 16, 1961, motions to vacate the decisions of November 3, 1960.
23
* * * * * *
24
"Furthermore, the motions for special leave do not contain a statement of any reason why special leave should be granted. They state, perhaps with some impatience, that the Commissioner has previously informed the Court of his reasons why the decisions in the three cases should be vacated. Such a motion does not move the Court to waive the 30-day rule. Not only is it not clear to what reasons the Commissioner refers, but also it is not clear that he refers to meritorious reasons. The chief implied reason may be that the Court should hold open these three cases (a) "for disposition after the Court has considered on the merits the allocation of income question belatedly raised by the petitioner in the companion case of Louis F. Long et ux., Docket No. 62770" * * *.
25
"An examination of the file of Docket No. 62770 * * * discloses that the petition was filed on June 4, 1956, followed by an answer on August 2, 1956, and a reply on September 13, 1956, and that the petitioners in that case have never filed or requested permission to file any amendment to their pleadings. The Commissioner's reference to a question `belatedly raised by the petitioners' in Docket No. 62770 is not based upon fact. * * * The Court finds in the above no support for the Commissioner's motion for leave to file a belated motion to vacate decisions."4
26
The order pointed out further that the Commissioner had not alleged any fact to show that any one of the taxpayer children of Louis F. Long had actually received any taxable income from the theatres, that any of them had any knowledge that the income from the theatres belonged to them and should be reported, or that any of the three children had committed any fraudulent act. The order further pointed out that the proposed amended answers of the Commissioner did not conform to the rules of the court. After setting out in detail further reasons for its action the court concluded its order with the following statement:
27
"After further consideration of all matters, the court is not moved to grant the motion for leave to file the motions to vacate the decisions of November 3, 1960, and that motion is hereby denied."
28
The Commissioner timely filed in this court a petition to review the order of the Tax Court dated November 3, 1960, to review the order entered by the Tax Court on December 16, 1960, and to review the order of that court dated February 23, 1961. Jurisdiction is in this court pursuant to section 7482 of the Internal Revenue Code of 1954, 26 U.S. C.A. § 7482.
29
The questions presented by this appeal are (1) whether the Commissioner had an unqualified right to amend his answer, at or before the hearing or the rehearing in the Tax Court, claiming additional deficiencies in taxes in excess of the amount assessed in the deficiency notice, and (2) if the Commissioner did not have such an unqualified right, whether the Tax Court abused its discretion in refusing to allow the Commissioner's motion to amend his answer and the Commissioner's motion to vacate the orders and decisions of November 3, 1960.
30
Section 272(e) of the Internal Revenue Code of 1939 reads:
31
"Increase of deficiency after notice mailed. The Tax Court shall have jurisdiction to redetermine the correct amount of the deficiency even if the amount so redetermined is greater than the amount of the deficiency, notice of which has been mailed to the taxpayer, and to determine whether any penalty, additional amount or addition to the tax should be assessed — if claim therefor is asserted by the Commissioner at or before the hearing or a rehearing."
32
Contrary to the contention of the Commissioner, this section does not give any absolute right to the Commissioner to claim an additional tax "if claim therefor is asserted by the Commissioner at or before the hearing or a rehearing." It really gives the Tax Court jurisdiction to redetermine the correct amount of the deficiency in the event such redetermination is warranted by the facts of a particular case. A statute which provides merely for jurisdiction to do an act does not by that fact alone establish a mandate requiring that act to be done.
33
The question of whether the Commissioner has a right as a matter of law to amend was discussed in Commissioner of Internal Revenue v. Erie Forge Co., 167 F.2d 71 (3d Cir.1948). The court there said:
34
"The Commissioner relies upon Section 272(e) and contends that he had a right to amend as a matter of law and that the court was obliged to accede to his request, citing Helvering v. Edison Securities Corp. [, 4 Cir., 78 F.2d 85]; Commissioner [of Internal Revenue] v. Ray [, 7 Cir., 88 F.2d 891]; International Banding Machine Co. v. Commissioner, [2 Cir., 37 F.2d 660,] all supra. He argues from those cases that the term `hearing' includes the entire proceeding before the Tax Court down to the rendering of the final decision and that therefore his request for amendment was timely.
35
"True the statute prescribes that the Tax Court has jurisdiction to determine the correct amount of the deficiency and to determine whether a penalty should be assessed if claim therefor is asserted by the Commissioner at or before the hearing or rehearing, but the Tax Court was also given a right by law to adopt rules of procedure and it did by providing in Rule 19 that `motions must be timely', that `motions will be acted upon as justice may require' and in Rule 17 that `after answer is filed, a petition may be amended only by consent of the Commissioner or on leave of the Board'. Further that `upon motion made, the Board may, in its discretion, at any time before the conclusion of the hearing, permit a party to a proceeding to amend the pleadings to conform to the proof'.
36
"While Rule 17 does not expressly and literally cover an amendment proposed by the Commissioner the spirit and intent of the rule would require permission of the Tax Court before such an amendment would be allowed, and its action could not be reversed unless it was arbitrary or other than justice requires.
37
"We do not agree that the Commissioner is entitled to have the amendment allowed as a matter of law * * *." [Footnotes omitted.]5
38
We have not found and the Commissioner has not pointed out any case which holds that the Commissioner has the unqualified right for which he contends herein and which holds that the Tax Court has no discretion to refuse permission to amend. The Commissioner's reliance on Commissioner of Internal Revenue v. Finley, 265 F.2d 885 (10th Cir. 1959), and other cases is misplaced. In the Finley case the Commissioner was permitted to amend his answer after the hearing of the case but before the decision of the court was rendered. The taxpayer argued that the amendment was not timely within the meaning of section 272(e). The court held that the amendment to the answer conforming the answer to the proof was timely in that it was filed "at or before the hearing or rehearing." The court did not discuss, nor did it have occasion to discuss, whether the Commissioner has an absolute right to amend his answer if his proffered amendment is timely. The court merely dealt with the narrow question of whether the proffered amendment was in fact timely. The taxpayer apparently did not argue that the granting of permission to file the amendment was an abuse of discretion.
39
Although there are no cases which hold that there is an unqualified right to amend in all situations, there have been instances where a denial of permission to amend has been an abuse of discretion.6
40
We agree with the reasoning and the holding of Commissioner of Internal Revenue v. Erie Forge Co., supra, and therefore we conclude that the Commissioner did not have an unqualified right on October 31, 1960, to file an amendment to his answer claiming a tax in excess of the amount assessed in the deficiency notice.
41
We turn now to the second question on this appeal, whether the Tax Court abused its discretion in refusing to allow the Commissioner's motions to amend and in denying Commissioner's motions to vacate the orders and decisions of November 3, 1960.
42
No action was taken by the Commissioner from the time of the filing of his answers to taxpayers' petitions on August 2, 1956, until October 31, 1960, a period of over four years. On October 31, 1960, two days before the day fixed for the hearing of the orders to show cause why the orders which had been consented to by taxpayers should not be entered, the Commissioner filed his belated motions for leave to file amendments to his answers. In these motions he raised his claim of tax deficiency from approximately $2,000 in each case to approximately $48,000 in each case. The only explanation given in his motion was that it was done "in accordance with information received subsequent to March 15, 1956." Such a meager "explanation" of why a motion to amend an answer is requested does not comply with Rule 17 (a) of the Tax Court Rules of Practice, 26 U.S.C.A. (I.R.C.1954) § 7453 which provides that "A motion for leave to amend a pleading shall state reasons for granting it and shall be accompanied by the proposed amendment."
43
The Commissioner's proposed amendment which accompanied his motion for leave to file it also failed to comply with the applicable Tax Court rule. Rule 14(b) of the Tax Court Rules of Practice provides:
44
"The answer shall be drawn so that it will advise the petitioner and the Court fully of the nature of the defense. It shall contain a specific admission or denial of each material allegation of fact contained in the petition and a statement of any facts upon which the Commissioner relies for defense or for affirmative relief or to sustain any issue raised in the petition in respect of which issue the burden of proof is, by statute, placed upon him. * * *"
45
The Tax Court pointed out, and we agree, that the Commissioner's proposed amendments did not contain a "statement of any facts upon which the Commissioner relies * * * for affirmative relief."
46
The Commissioner on November 22, 1960, filed his motion to vacate orders and decisions of November 3, 1960. This motion was unverified and it was not accompanied by any affidavits. Among other things it recited that the attorney for Louis F. Long, the father of taxpayers, had indicated that Louis F. Long "would contend that some of the income from theatres in the period 1937 to 1953 should have been reported by taxpayers," and that if Louis F. Long "prevails in his contention * * * then the children (taxpayers herein) will have avoided any income tax thereon * * *." Nowhere in the facts alleged by the Commissioner in support of his motion was there a definite statement of any particular income that should be chargeable to any of the Long children, either from any theatre or during any particular year.
47
To this motion to vacate the petitioners filed an extensive response which was accompanied by exhibits and by affidavits.
48
At the hearing on the Commissioner's motion to vacate on December 14, 1960, in Washington, D. C., the Tax Court again pointed out the weakness of the Commissioner's proposed amended answer and that the court had nothing more before it on December 14 than it had had on November 3, 1960. The taxpayers contended that their extensive affidavits and exhibits had established without question the weakness of the Commissioner's position. After taking the matter under submission the court, on December 16, 1960, signed a written order denying the motions to vacate.
49
Upon all the facts and circumstances which were before the Tax Court we are unable to see any abuse of discretion in the Tax Court's orders of November 3 or in the Tax Court's order of December 16 refusing to vacate the prior orders. We agree with the statement in Commissioner of Internal Revenue v. Erie Forge Co., supra, that —
50
"The Tax Court is authorized to determine whether its rules are complied with and where its decision of such questions is not shown to be clearly wrong it should not be disturbed. Commissioner v. Kerbaugh, 1 Cir., 1935, 74 F.2d 749. Whether a motion is timely and whether it should be allowed rests within the sound discretion of the Court. Reis v. Commissioner, 6 Cir., 1944, 142 F. 2d 900, 903 * * *."7
51
On January 16, 1961, the Commissioner lodged with the court motions for leave to file amendments to his answers, accompanied by proposed amendments to his answers and documents entitled "Renewed Motion to Vacate Orders and Decisions of November 3, 1960." Rule 19(f) (1) of the Tax Court Rules of Practice provides:
52
"No motion to vacate or revise a decision may be filed more than 30 days after the decision has been entered, except by special leave."
53
No special leave was requested or granted when the last mentioned documents were lodged with the court on January 16, 1961.
54
The parties were notified that they would be heard on the matter of the motions to vacate and the motions to file amended answers on February 15, 1961. On February 17, 1961, the Commissioner belatedly filed motions for special leave which should have been filed when the renewed motions to vacate were lodged with the court on January 16, 1961.
55
Even though it would seem that the Tax Court was not obliged to consider further the Commissioner's motions because the rules were not properly observed, the Tax Court again reviewed the Commissioner's proceedings before it. In its order of February 23, 1961, the Tax Court, among other things (some of which appear in the statements of facts of this opinion), stated that one of the allegations of the Commissioner in justification of his position was not based upon fact.8 The court further stated:
56
"He [the Commissioner] does not allege any fact to show that any one of these three children actually received any taxable income from these theatres, that any one of the three had any knowledge that income from such theatres belonged to them and should be reported by them as taxable income during 1951 or 1953 or that any one of the three children committed any fraudulent act. It would thus appear that the proposed amended answers do not conform to the rules of this Court, so that if the Court waived the 30-day rule on the motions to vacate the decisions of November 3, 1960, it would not have before it any amended answers which would merit filing, it would have to deny the motions to file the proposed amended answers now lodged with it and there would be no claims for any increased deficiencies."
57
The court then referred to further weaknesses and inconsistencies in the Commissioner's actions (the details of which are set out in the order and which we will not attempt to repeat here), and after stating that it had fully considered all of the matters the court denied the Commissioner's motions. We think such denial was clearly within the discretion of the Tax Court under the rules of that court and under the factual circumstances which were before it.
58
The judgment of the Tax Court is affirmed.
Notes:
1
No attorneys' names appeared on any of the petitions for redetermination. They were signed as follows: in No. 17470 the petition was signed "Louis F. Long, Guardian of the Estate of Robert Louis Long, a Minor"; in No. 17471 the petition was signed "Shirley Jean Long"; in No. 17472 the petition was signed "Frances M. Long." Robert, Shirley and Frances are the children of Louis F. Long
2
"October 13, 1960
"Mr. Melvin L. Sears,
Regional Counsel,
"U.S.Treasury Department,
"1135 Subway Terminal Building,
"417 South Hill Street,
"Los Angeles 13, California.
"In re: Estate of Robert Louis Long,
a minor, by Louis F. Long,
his Guardian, Petitioner, vs.
Commissioner of Internal
Revenue, Respondent.
Docket No. 62769.
"Shirley Jean Long, Petitioner
vs. Commissioner of Internal
Revenue, Respondent.
Docket No. 62771.
"Dear Mr. Sears:
"Reference is made to my letter to you of yesterday pertaining to the above-entitled matters. This morning I have received from Safford your letters of October 7, 1960, to Mrs. Shirley Jean Schnautz and to the Estate of Robert Louis Long addressed to 520 Main Street, Safford, Arizona, said letters being identical to the letter of October 7, 1960, to Miss Frances Long, referred to in the next to last paragraph of my letter of yesterday.
"For the reasons set forth in my letter of yesterday, I assume that reply to your letters is unnecessary.
"Very truly yours,
"rvg /s/ JOHN E. MADDEN."
3
The original claimed deficiencies were as follows: in No. 17470 — $1.945.48: in No. 17471 — $1,913.99; in No. 17472 — $2,036.51
4
See text accompanying note 8 infra
5
167 F.2d at 76
6
For example, in Commissioner v. Ray, 88 F.2d 891 (7th Cir. 1937), the controversy was over the proper tax due for 1926 and 1928. The Commissioner's deficiency notice and answer stated that a certain $25,000 item was income for 1926. In the trial court's opinion it was found that the disputed $25,000 item was income for 1928 not 1926. The Commissioner then moved to amend the pleadings to conform to the finding of the court. The motion to amend was denied. The Court of Appeals reversed, holding that denial of the motion to amend was an abuse of discretion
7
167 F.2d at 76
8
See text accompanying note 4 supra
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517 F.2d 480
Schlesingerv.Wallace
73-1914
UNITED STATES COURT OF APPEALS Fifth Circuit
7/17/75
N.D.Ala., 513 F.2d 65
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39 F.Supp.2d 1106 (1999)
Jane DOE, Plaintiff,
v.
CITY OF CHICAGO, a municipal corporation, Officer Bruce (# 4481), Joseph Pantalena, and E & R Towing & Garage, Inc., Defendants.
No. 96 C 5739.
United States District Court, N.D. Illinois, Eastern Division.
March 23, 1999.
*1107 Mary Louise Boelcke, Attorney, Chicago, IL, Edward Ted Stein, Karen E. Tamburro, *1108 Law Offices of Edward T. Stein, Chicago, IL, for Jane Doe, I, plaintiff.
Susan S. Sher, Sharon Baldwin, Alec McAusland, Law Department, Corporation Counsel, Chicago, IL, George John Yamin, Jr., Department of Law, Chicago, IL, for City of Chicago, defendant.
Sharon Baldwin, Alec McAusland, Law Department, Corporation Counsel, Chicago, IL, John F. McGuire, Steven M. Yarosh, Law Department, Chicago, IL, for Officer Bruce, defendant.
Bernard Francis Crotty, Martin J. McNally & Associates, Markham, IL, for Joseph Pantalena, E & R Towing & Garage, Inc., defendants.
MEMORANDUM OPINION AND ORDER
ANN CLAIRE WILLIAMS, District Judge.
Jane Doe ("Doe") is suing Environmental Auto Removal, Inc. ("EAR") and one of its employees, Joseph Pantalena ("Pantalena"), over events related to Doe's arrest for disorderly conduct at the City of Chicago auto pound ("the pound").[1] In count I of her six-count complaint, Doe alleges that Pantalena violated 42 U.S.C. § 1983 when he deprived her of her right to be free from unlawful seizure. In count II, Doe claims that her arrest and subsequent criminal proceedings constituted a malicious prosecution by Pantalena, also in violation of 42 U.S.C. § 1983. In count IV, Doe alleges a state law false arrest claim against both EAR and Pantalena. In count V, Doe asserts a state law claim of malicious prosecution against EAR and Pantalena. Finally, in count VI, Doe alleges intentional infliction of emotional distress against EAR and Pantalena. EAR and Pantalena now move for summary judgment on all counts against them. For the following reasons, the court grants in part and denies in part EAR and Pantalena's motion for summary judgment.
Background
On February 20, 1996, Doe was involved in an automobile accident which left her car severely damaged. (Def.12(M) ¶ 5.) After the accident, Doe's car was towed to the pound, and Doe and her son then went to the pound to remove property from her damaged automobile. (Doe Dep. at 35; Def. 12(N) ¶¶ 6-7.) At the pound, Doe obtained a pass from a City employee which read, "Pick Up Personal Belongings," and walked to her vehicle. (Pl.'s 12(N) Stmt. of Add'l Facts ¶¶ 34-35.) Doe's son removed all of the parts of the stereo system which he found in the car and also wanted to also take the battery out of the car. (Pl.'s 12(N) Stmt. of Add'l Facts ¶¶ 36-37; Doe Dep. at 40.)
Carrying the items taken from the car, Doe and her son walked to a trailer where pound personnel work to inquire whether they could also take the car's battery. (Def.12(M) ¶ 10; Pl.'s 12(N) Stmt. of Add'l Facts ¶ 37.) As Doe and her son walked toward the trailer, Pantalena appeared and ordered Doe to return the items she and her son were carrying to her car. (Def.12(M) ¶ 13; Pl.'s 12(N) Stmt. of Add'l Facts ¶ 38.) Doe stated that she was simply trying to collect her personal property from her automobile. (Pl.'s 12(N) Stmt. of Add'l Facts ¶ 39.) Pantalena informed Doe that the car stereo and battery were not considered personal property and that she would have to return those items to her car. (Def.12(M) ¶ 13.)
*1109 Apparently displeased with Pantalena's instructions, Doe then followed Pantalena into the trailer, requesting that Pantalena provide her with a copy of the written policies which define "personal property." (Def.12(M) ¶ 14; Pl.'s 12(N) Stmt. of Add'l Facts ¶ 41.) Pantalena did not produce any written policies; instead, Pantalena stated that the policy defining personal property was whatever he said it was. (Def.'s Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 47.) Pantalena told Doe that only items such as clothing or a purse constitute personal property. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 42.)
The actual written policy of the pound allows a person to remove anything from the vehicle that is not affixed to or part of the vehicle. (Pl.'s 12(N) Stmt. of Add'l Facts ¶ 43; Sorfleet Dep. at 27-29; EAR Handbook at D-E & R000150.) Specifically, the relevant part of the handbook provides:
When verified and properly documented, the owner of an impounded vehicle will be allowed to remove his/her personal property from the vehicle. The definition of personal property in this case is as follows: Any item(s) or possession(s) that is not affixed to or part of the vehicle with the exception of license plates. Example of what is not personal property: (battery, radio or speakers, tires, etc.) Example of what is personal property: (clothing, tools, documents/important papers etc.).
(EAR Handbook at D-E & R000150.) EAR provides its employees with a copy of the handbook which contains this provision. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 48.)
After Pantalena refused to produce a written copy of the policy, Doe asked to speak to Pantalena's supervisor. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 49.) Pantalena refused, stating that he was the supervisor. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 50.) Pantalena then told Doe that the only way she could remove the items in question was to pay the tow fee and remove her entire vehicle from the pound. (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 52.) Doe then offered to pay the tow fee, but requested that she be able to leave the car at the pound since it was too severely damaged for her to drive away from the pound. (Pl.'s 12(N) Statement of Additional Facts ¶ 56.) Pantalena rejected Doe's offer and ordered her to leave the property, (Def.Resp. Pl.'s 12(N) Stmt. of Add'l Facts ¶ 57), but Doe refused to leave the pound without the property she wanted to take with her. (Def.12(M) ¶ 15.)
When Doe refused to leave the pound, Pantalena asked the secretary to call the police. (Def.12(M) ¶ 16.) Chicago police officer James Bruce responded to the call and arrived on the scene. (Def.12(M) ¶ 17.) Pantalena identified himself to officer Bruce as the supervisor on the site and explained to Bruce that Doe was causing a disturbance in the trailer and that she refused to leave when Pantalena asked her to leave. (Def.12(M) ¶ 22; Bruce Dep. at 67.) After hearing Pantalena's version of the events, officer Bruce asked Doe to leave the pound several times, instructing her that it was a business and her refusal to leave violated the law. (Bruce Dep. at 78-79.) Doe persisted in her refusal to leave without her belongings and officer Bruce then arrested her. (Def.12(M) ¶¶ 25-26.)
Officer Bruce handed Pantalena a blank complaint form, which Pantalena signed. (Bruce Dep. at 80.) Officer Bruce filled out the complaint at the police station after taking Doe into custody. (Bruce Dep. at 80.) The complaint alleged that Doe engaged in disorderly conduct by refusing to leave the pound where she was creating a disturbance and refused to leave the property even after being advised that her failure to do so would result in her arrest. (Crim.Compl., Pl.'s Ex. 1.) Doe later appeared at a hearing on the disorderly conduct charge. The court dismissed the charge because neither Pantalena nor officer Bruce appeared to testify. (Doe Dep. *1110 at 118; Def. 12(M) at ¶ 32.) Doe filed her six-count complaint against EAR and Pantalena. Defendants EAR and Pantalena now move for summary judgment on counts I, II, IV, V and VI.
Analysis
The court will render summary judgment only if the factual record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 173 (7th Cir.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In ruling on a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party. Bratton, 77 F.3d at 171 (citation omitted); Sullivan, 78 F.3d at 325 (citation omitted). On a motion for summary judgment, the moving party "bears the initial burden of showing that no genuine issue of material fact exists." Hudson Ins. Co. v. City of Chicago Heights, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Then the burden shifts to the nonmoving party, which "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir.1995) (citations omitted).
I. Count I Section 1983 Unlawful Seizure
Doe alleges that Pantalena violated § 1983 when he deprived her of her right to be free from unlawful arrest, imprisonment, search, seizure, and detention under the Fourth and Fourteenth Amendments of the United States Constitution. A claim under 42 U.S.C. § 1983 contains two essential elements: (1) a violation of a right secured by the Constitution or laws of the United States; and (2) defendant must have violated this right under color of state law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Starnes v. Capital Cities Media, Inc., 39 F.3d 1394 (7th Cir.1994). Pantalena does not address the first element of Doe's § 1983 claim whether Doe's arrest violated a right secured by the Constitution.[2] Instead, Pantalena argues that he is entitled to summary judgment on this claim because he is a private citizen employed by a private company and not a "state actor." Pantalena therefore asserts that Doe fails to show evidence from which a reasonable juror could conclude that he acted under color of state law when Doe was arrested.
To show that a private citizen acted under color of state law, the plaintiff must show that the behavior meets one of four tests. First, under the "state compulsion test," a private citizen may be liable under § 1983 when "the state has so implicated itself in the defendant's action that the state has in effect compelled the action." Starnes, 39 F.3d at 1394 (citing Adickes, 398 U.S. at 170, 90 S.Ct. 1598). Second, under the "public function test," the actions of a private individual may be attributed to the state when the private party is engaging in an activity that is traditionally the exclusive prerogative of the state. See Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). Third, under the "joint action test" a private defendant may be said to be acting under color of state law if that defendant and the state official had a `meeting of the minds' and thus reached an understanding that the plaintiff be denied a constitutional right. See Sparkman v. McFarlin, 601 F.2d 261 (7th Cir.1979). Finally, under the "nexus test," state action by a private party exists *1111 where the state has so far insinuated itself in the private party's actions as to create an interdependence between the state and the individual. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Applying the different tests in different contexts is a "necessarily fact-bound inquiry." Lugar v. Edmonson Oil Company, Inc., 457 U.S. 922, 938, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). To hold Pantalena liable under § 1983, Doe must show that his conduct meets one of these four tests establishing state action.
Applying the "public function test," the facts in this case could lead a reasonable jury to find that Pantalena acted under color of state law. Under the "public function" test, a private entity may be held liable under § 1983 where it performs functions that are "traditionally the exclusive prerogative of the State." Wade v. Byles, 83 F.3d 902, 905 (7th Cir.1996) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Such functions are so closely associated with the government that a state cannot limit its accountability for their performance, even if they are carried out by private parties. Wade, 83 F.3d at 904-05.
Doe argues that by virtue of EAR's exclusive contract with the City of Chicago, Pantalena has been delegated the exclusive function of towing and storing towed by the City of Chicago. Doe cites numerous cases which hold that the act of towing by a private company for a city or a state constitutes state action for the purposes of § 1983. (See Pl.'s Resp. at 10.) However, Doe's lawsuit does not claim that the act of towing her car to the pound constituted state action. Rather, Doe's lawsuit centers around Pantalena's conduct after the towing occurred. Therefore, the cases Doe cites do not aid her argument.
Nevertheless, Doe shows facts which support her argument that the City delegated functions to EAR that are traditionally the prerogative of the state. The City of Chicago has an exclusive contract with EAR for management of Chicago's two City-owned auto pounds. (See Pl.'s 12(N) Stmt. of Add'l Facts at ¶¶ 10-12, 14; Sorfleet Dep. at 11, 33; The Pilot Towing and Pound Management Agreement ("Towing Agreement") § 5.02.) Pursuant to its contract with the City, EAR is required to tow vehicles at the City's direction, provide the City with the tow case and inventory report, inventory vehicles, answer inquiries about vehicles, and maintain records indicating where the vehicle is located in the Auto Pound. (Pl.12(N) Stmt. of Add'l Facts at ¶ 18; Sorfleet Dep. at 13; Towing Agreement § 3.02, 3.05, 3.06.) In addition, EAR employees maintain security inside the pound, staff the pound, limit access to the pound to authorized individuals, answer inquiries regarding vehicles, and assist in the redemption of vehicles. (See Pl.'s 21(N) Stmt. of Add'l Facts at ¶¶ 18-19; Towing Agreement, §§ 3.04, 3.05.) EAR's contract with the City is authorized by statute. (See Pl.'s 12(N) Stmt. of Add'l Facts at ¶ 10; Municipal Code Handbook § 9-92-050.)
Defendants EAR and Pantalena rely on Wade v. Byles in support of their contention that Pantalena was not acting under color of state law pursuant to the public function test. In Wade, the defendant was a security guard employed by a private company that contracted with the Chicago Housing Authority to provide security for certain public properties. See Wade, 83 F.3d at 903. The plaintiff in Wade, filed a § 1983 claim alleging violations of his Fourteenth and Fourth Amendment rights against the security guard and his employer when the plaintiff was shot by the security guard in an altercation. See id.
The Seventh Circuit held in Wade that the powers delegated by the City to the defendant security guard were "limited and local" and therefore did not constitute powers traditionally the exclusive prerogative of the state. Id. at 905. The court reasoned that the security company "possessed powers no greater than those of *1112 armed security guards who are commonly employed by private companies to protect private property." Wade, 83 F.3d at 905. Thus, the responsibilities of the security company were limited to the specific properties it had contracted with the City to secure as well as shared with the Chicago Police Department.
In this case, the defendants' reliance on Wade is misplaced. Unlike the security company in Wade, EAR has an exclusive contract with the City to tow and store all cars which the City of Chicago deems necessary. (See Pl. 12(N) Stmt. of Add'l Facts at ¶ 18; Sorfleet Dep. at 13; Towing Agreement §§ 3.02, 3.05, 3.06.) Contrary to defendants' assertion, EAR's powers authorized by local ordinance and its contract with the City are not "limited and local" in nature. If the City of Chicago directs that a car be towed, only EAR may tow that car. Unlike the security company in Wade, EAR's towing responsibilities are not limited to specific properties in the City. Rather, EAR is responsible for towing, storing, and releasing all cars throughout the City of Chicago at the City's direction.
Pantalena asserts that EAR does not excessively perform this public function because the City reserves the responsibilities of collecting towing fees and helping to operate the auto pound. However, these facts are not inconsistent with Doe's claim that the City has allocated the full powers of the City's "in-house" towing and storage entity to EAR. This division of responsibilities among the City and EAR is of a completely different and far less significant nature than was present in Wade. See Wade, 83 F.3d at 905. Accordingly, the court finds this case distinguishable from Wade.
Doe meets her burden of showing a genuine issue of material fact over whether Pantalena's conduct may be fairly attributed to the state under the public function test. Pantalena was employed by EAR and held himself out as the supervisor on duty at the pound. (See Doe Dep. at 43-44; Bruce Dep. at 67.) Additionally, Pantalena stated that there was no official written policy regarding personal property and that policy was what he said it was. (Doe Dep. at 43-44.) EAR's contract with the city requires that EAR employees to "answer inquiries regarding vehicles" as well as maintain "the security of the facility and impounded vehicles." (See Towing Agreement § 3.05.) Thus, when Pantalena refused Doe's requests to take the property at issue, called the police, and signed the complaint for her arrest, he was acting within his capacity as an employee of EAR. There remains a jury question as to whether this behavior may be fairly attributed to the state under § 1983. For these reasons, the court denies Pantalena' motion for summary judgment on count I.
II. Counts II and V Malicious Prosecution Under § 1983 and State Law
In count II of her complaint, Doe alleges a § 1983 claim of malicious prosecution against Pantalena, and in count V, Doe asserts that both EAR and Pantalena should be held liable for malicious prosecution under Illinois law. To survive summary judgment on her § 1983 malicious prosecution claim, Doe must show facts from which a reasonable jury could conclude that (1) she suffered a deprivation of constitutional magnitude; (2) the malicious prosecution was committed by state actors; and (3) she satisfies the requirements of the state law cause of action for malicious prosecution. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996); Smart v. Board of Trustees, 34 F.3d 432, 434 (7th Cir.1994). EAR and Pantalena attack both of Doe's malicious prosecution claims only on the basis that she fails to show a genuine issue of material fact on the elements of state law malicious prosecution.
To survive a motion for summary judgment on a malicious prosecution claim under Illinois law, Doe must show a factual dispute over the following: (1) the commencement or continuance of an original criminal or civil judicial proceeding by the *1113 defendant; (2) termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such a proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff. Swick v. Liautaud, 169 Ill.2d 504, 215 Ill. Dec. 98, 662 N.E.2d 1238, 1242 (1996). EAR and Pantalena only contest Doe's ability to show that they commenced or continued an original criminal or civil judicial proceeding against Doe.
Under Illinois law, in order to attribute legal causation of the original criminal action against the plaintiff to a private defendant, a plaintiff must show facts demonstrating that the defendant (1) knowingly made false statements to the police; (2) instituted the proceedings against the plaintiff; or (3) "requested, directed or pressured the officer into swearing out the complaint for the plaintiff's arrest." Geisberger v. Vella, 62 Ill.App.3d 941, 20 Ill. Dec. 114, 379 N.E.2d 947, 948 (1978).
Defendants argue that Doe fails to show evidence that EAR or Pantalena commenced or continued an original criminal or civil judicial proceeding against her because she cannot show that Pantalena directed or pressured officer Bruce into swearing out the complaint for Doe's arrest. (See Def.'s Mot. for Summ.J. at 12.) This argument fails because defendants misstate the legal requirements to show legal causation of the original criminal action. See Geisberger, 20 Ill.Dec. 114, 379 N.E.2d at 948. Pressuring or directing a police officer to make an arrest is only one of the ways a plaintiff can establish that a private defendant commenced a criminal action. Id. A plaintiff may also satisfy this requirement by showing that the private defendant knowingly provided false information to a police officer to induce the arrest. Id.; see also Denton v. Allstate Ins. Co., 152 Ill.App.3d 578, 105 Ill.Dec. 471, 504 N.E.2d 756, 760 (1987) ("the attribution of police action to a defendant requires ... that defendant knowingly gave false information to the police").
Doe alleged in her complaint that Pantalena initiated the proceedings against her when he directed the secretary to call the police and knowingly gave false information to officer Bruce by stating that Doe was not within her rights to take home the items from her car. In support of her allegation that Pantalena knowingly gave officer Bruce false information, Doe cites EAR's written policy regarding removable personal property as well as the fact that the City supervisor later allowed her to retrieve the items in dispute. (See EAR Handbook, Pl.'s Ex. H; Sorfleet Dep. at 44). These facts contradict Pantalena's statement to officer Bruce that Doe was acting disorderly by insisting that she be allowed to take her personal items from her car. Additionally, since this is a motion for summary judgment, the court must presume that, as an EAR employee, Pantalena knew the correct policy governing removal of personal property. Based on these facts, the court finds a genuine issue of material fact over whether Pantalena commenced the criminal proceedings against Doe by knowingly making a false statement to officer Bruce. The court therefore denies EAR and Pantalena's motion for summary judgment on counts II and V.
III. Count IV False Arrest
Doe alleges a supplemental state law claim of false arrest against both EAR and Pantalena. In Illinois, a private individual may be held liable for false arrest if the defendant goes beyond merely giving information and participates in making an arrest which turns out to have been unlawful. Butler v. Goldblatt Bros., Inc., 432 F.Supp. 1122, 1129 (N.D.Ill.1977). However, what constitutes participation depends on the facts and circumstances of each case. See id. Merely giving information to the police is in itself insufficient to constitute participation in an arrest. See Odorizzi v. A.O. Smith Corp., 452 F.2d 229 (7th Cir.1971). In contrast to malicious prosecution claims, the Seventh Circuit and Illinois courts have held that giving *1114 false information to a police officer does not constitute "participating" in a false arrest. See Butler v. Goldblatt Bros., Inc., 589 F.2d 323, 326 (7th Cir.1978); Pease v. Int'l Union of Operating Engineers Local 150, 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 618 (1991). Thus, a defendant must go beyond providing the information leading to the arrest and actually request and obtain the arrest. See Butler, 432 F.Supp. at 1128.
In this case, Doe does not present any facts which suggest that Pantalena requested and obtained her arrest. The record reflects that Pantalena merely described his version of events to officer Bruce, stating that Doe was "disorderly" before Bruce arrived. There is no evidence that Pantalena requested that an arrest be made, or that Pantalena said anything at all once officer Bruce began questioning Doe. (See Bruce Dep. at 76-80; Doe Dep. at 60-67.) Moreover, officer Bruce clearly stated in his deposition that he did not base his arrest merely on the statements of Pantalena. (See Bruce Dep. at 78-79.) Rather, it was only when Doe persisted in her refusal to leave the pound that Bruce decided to make the arrest. Thus, Doe fails to meet her burden on summary judgment because she fails to show evidence that Pantalena or EAR actively participated in procuring her arrest. The court therefore grants EAR and Pantalena's motion for summary judgment on this claim.
IV. Count VI: Intentional Infliction of Emotional Distress
In Count six of her complaint, Doe alleges a supplemental claim of intentional infliction of emotional distress against both EAR and Pantalena. Under Illinois law, the tort of intentional infliction of emotional distress contains the following elements: (1) extreme and outrageous conduct by the defendant; (2) intent to cause, or a reckless disregard of the probability of causing, emotional distress; (3) severe or extreme emotional distress suffered by plaintiff; and, (4) actual and proximate causation of the emotional distress by defendants' outrageous conduct. See Public Finance Corp. v. Davis, 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765, 767 (1976). Illinois courts have taken a narrow view of what is required to establish a claim for intentional infliction of emotional distress. Specifically, as one court noted,
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found [only when the conduct] is so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency.
Baltz v. County of Will, 609 F.Supp. 992, 996 (N.D.Ill.1985) (citing Public Finance Corp., 4 Ill.Dec. 652, 360 N.E.2d at 767).
In this case, the parties do not dispute the result of the arrest that Doe was handcuffed in front of her son, taken to the police station and handcuffed to a wall for over an hour. Applying Illinois's "extreme and outrageous" standard to these facts, Pantalena's actions simply do not rise to the level of extreme outrageousness, beyond all bounds of decency. This conclusion is particularly obvious in light of the fact that most of the conduct Doe complains of was committed by officer Bruce rather than Pantalena. Pantalena was rude, but nothing he did could support a claim for intentional infliction of emotional distress. See Baltz, 609 F.Supp. at 992. Accordingly, the court grants EAR and Pantalena's motion for summary judgment on count VI.
Conclusion
Defendants EAR and Pantalena's motion for summary judgment [doc. 71-1] is granted in part and denied in part. The court grants defendants' motion for summary *1115 judgment on counts IV and VI, but denies defendants' motion for summary judgment on counts I, II, and V. The parties should discuss settlement before the next court date.
NOTES
[1] EAR and Pantalena are not the only defendants in this lawsuit. Rather, Doe brings her six-count complaint against the City of Chicago, Chicago police officer James Bruce, EAR, and Pantalena. However, the City of Chicago and officer Bruce already filed a motion for summary judgment that this court denied. Defendants EAR and Pantalena now move for summary judgment on counts I, II, IV, V, and VIthe only counts against them. Because the court has already denied the City's and officer Bruce's motion for summary judgment, this Opinion will only discuss Doe's claims as they pertain to defendants EAR and Pantalena.
[2] In the court's order denying the City's and officer Bruce's motion for summary judgment, the court found a genuine issue of material fact over whether there was probable cause to arrest Doe. See, e.g., Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1345 (7th Cir.1985) (holding a fact question exists regarding probable cause where a citizen provided inaccurate information to the police and the police made an arrest without conducting a reasonable investigation).
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263 F.2d 493
Harold FRIEDMAN, Trustee in Bankruptcy for the Gerico Investment Company, Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee.WTVJ, Inc., Publix Television Corporation, Intervenors.Harold FRIEDMAN, Trustee in Bankruptcy for the Gerico Investment Company, Petitioner,v.UNITED STATES of America, and Federal Communications Commission, Respondents.WTVJ, Inc., Publix Television Corporation, Intervenors.
No. 14386.
No. 14387.
United States Court of Appeals District of Columbia Circuit.
Argued January 12, 1959.
Decided January 29, 1959.
Mr. Fred J. Eden, Jr., Washington, D. C. for appellant in No. 14386 and petitioner in No. 14387.
Mr. Joel Rosenbloom, Counsel, F.C.C., for appellee in No. 14386 and respondents in No. 14387. Messrs. John L. Fitzgerald, Gen. Counsel, F.C.C., Richard A. Solomon, Asst. Gen. Counsel, F.C.C., Richard M. Zwolinski, Counsel, F.C.C., and Daniel M. Friedman, Atty., Dept. of Justice, were on the brief for appellee in No. 14386 and respondents in No. 14387. Mr. Edgar W. Holtz, Associate Gen. Counsel, F.C.C., also entered an appearance for appellee in No. 14386 and respondents in No. 14387.
Mr. Marcus Cohn, Washington, D. C., was on the brief for intervenor WTVJ, Inc. Mr. Paul Dobin, Washington, D. C., also entered an appearance for intervenor WTVJ, Inc.
Mr. Aloysius B. McCabe, Washington, D. C., with whom Messrs. Reed T. Rollo and R. Russell Eagan, Washington, D. C., were on the brief, for intervenor Publix Television Corp.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
PER CURIAM.
1
Pursuant to § 402(a) of the Communications Act,1 Gerico Investment Company2 petitions this court in No. 14387 for review of the action of the Commission in assigning a new and fourth VHF channel, No. 6, to Miami, Florida, in a rule-making proceeding. Gerico contends that this action constitutes a modification of its own UHF license on Channel 17 at Fort Lauderdale, Florida. The argument is that the economic effect of assigning Channel 6 to Miami will cause such severe economic injury to Gerico's operations on Channel 17 as to constitute a modification of its license. On the basis of the reasoning which led us to conclude that the grant of a construction permit for a VHF station on Channel 10 at Miami did not constitute in law a modification of Gerico's license at Fort Lauderdale on Channel 17 we are unable to accept Gerico's present contention. See Gerico Investment Co. v. Federal Communications Commission, 103 U.S.App.D.C. 141, 255 F.2d 893.
2
Gerico's petition also challenges the action of the Commission in refusing to modify Gerico's own license, above referred to, by permitting operation on the new VHF Channel 6 in lieu of Channel 17. It is urged that in this manner the Commission could remedy the problem by placing Gerico in a position to have a fair chance of operating successfully in competition with VHF stations in the area. To sustain this contention we would be required to hold, as we cannot do, that the Commission has been arbitrary, capricious, and unreasonable in opening the question of allocating Channel 6 to other applicants as well as to Gerico. The disposition of this channel is now before the Commission to be determined in a consolidated proceeding in which we must at present assume that the rights of the respective applicants, including Gerico, will be respected by the Commission, subject to judicial review.
3
The actions of the Commission above discussed will be sustained in case No. 14387. The appeal in case No. 14386, filed pursuant to § 402(b), directed to the same matters, will be dismissed for lack of jurisdiction, since the provisions for judicial review contained in §§ 402 (a) and 402(b) are mutually exclusive.
4
It is so ordered.
Notes:
1
48 Stat. 1093 (1934), as amended, 66 Stat. 718, 47 U.S.C. § 402(a) (1952), 47 U.S.C.A. § 402(a)
2
Gerico Investment Company appeared in all proceedings before the Commission in cases No. 14386 and No. 14387. During oral argument in this court counsel for Gerico stated that subsequent to the Commission's decision Gerico had been adjudged a bankrupt and that a trustee in bankruptcy had been appointed. Permission was granted to file a motion for substitution of the trustee as a party in these actions. We have granted the motion and entered our order accordingly. For better understanding and also as a matter of convenience, however, we use in the text of our opinion the name of Gerico rather than that of the trustee
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768 F.2d 114
UNITED STATES of America, Plaintiff-Appellant,v.Larry Lee TAYLOR, Defendant-Appellee.
No. 84-5875.
United States Court of Appeals,Sixth Circuit.
Argued June 5, 1985.Decided July 19, 1985.
Joe B. Brown, U.S. Atty., Nashville, Tenn., John Philip Williams, William Warren (argued), for plaintiff-appellant.
William Farmer, Federal Public Defender, Nashville, Tenn., Paula D. Godsey, Robert Tucker (argued), for defendant-appellee.
Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.
CORNELIA G. KENNEDY, Circuit Judge.
1
The government appeals from the District Court's order reducing Taylor's sentence pursuant to Fed.R.Crim.P. 35.1 On February 23, 1982, Taylor entered a plea of guilty to a violation of 18 U.S.C. Sec. 113(b), assault with intent to commit a felony, and was sentenced by the District Court to a term of 7 1/2 years. On June 4, 1982, Taylor filed a Rule 35 motion to reduce sentence. On December 16, 1983, approximately 18 months after the motion was filed, the court entered its order, reducing Taylor's sentence to time served.2 The government concedes that the defendant did nothing to prolong the court's decision and, in fact, requested on two occasions that the court rule on his motion.
2
The government filed a motion for reconsideration, contending that the lapse of time had deprived the court of jurisdiction under Rule 35. The court held a hearing on January 13, 1984, at which time the District Judge stated,
3
for the record before ruling on the case that I acted deliberately in this case, that the offense was a serious offense. Of course, the sentence was a fairly harsh sentence, and I had no intention of granting a Rule 35 motion at the time that it was filed, that I fully intended for Mr. Taylor to stay in the institution for some time before I did rule on his Rule 35 motion, so I would have an opportunity to see how he handled his incarceration, so it was not--the delay on my part was a very intentional delay in action upon the motion. I would not have granted the motion within the 120 days.
4
On the other hand, if I had felt that I could not grant a Rule 35 motion with this kind of delay, I would not have imposed a seven-and-a-half year sentence in the first place.... [emphasis added]
5
The District Court thereupon took the motion to reconsider under advisement. After the government on July 13, 1984, called the court's attention to the fact that its motion for reconsideration had been under advisement for more than 30 days, the court denied the motion on August 21, 1984. This appeal followed.
I.
6
The government does not contend that the District Court did not retain jurisdiction to act on appellant's motion for a reasonable time after the 120-day time limit specified in Rule 35(b) had elapsed.3 Rather, it argues that even if a district judge may extend consideration of a timely Rule 35(b) motion for a reasonable period beyond the 120-day limit, "the district court's delay in this case was unreasonable because of a delay of 18 months in and of itself was unreasonable." Moreover, it contends that, in holding appellee's Rule 35 motion in abeyance "so I would have an opportunity to see how he handled his incarceration," the District Judge usurped the role of the Parole Commission and committed an abuse of discretion.
7
Appellee responds that in considering the reasonableness of the additional time taken before an order reducing sentence was entered, the courts have declined to adopt a per se limit such as the government proposes. See United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) ("[W]e see no merit in adopting appellants' suggestion that delays of over six months be decreed prima facie unreasonable. Reasonableness in this context must be evaluated in light of the policies supporting the time limitation and the reasons for the delay in each case.") & n. 3 (identifiable delays at issue were 42, 33 and 17 months); accord United States v. DeMier, 671 F.2d 1200, 1207 (8th Cir.1982). He also contends that although the District Judge did state that he wanted time to observe the appellee's deportment in prison before ruling on his motion, there is no indication that the judge was "sitting on" appellee's Rule 35 motion to use it as "a tool for overruling the Parole Commission after that body ... determines the likely release date of the criminal." Diggs v. United States, 740 F.2d 239, 246 (3d Cir.1984). Finally, the appellee argues that reduction of his sentence was warranted under Rule 35(a), based upon the District Judge's statement that he would not have imposed such a lengthy sentence if he did not believe that he could act as he did, since the sentence was based upon a misunderstanding and hence was imposed in an illegal manner.
8
Those circuits adhering to the rule that the district courts retain jurisdiction over timely filed Rule 35 motions for a reasonable period, see note 3 supra, have recognized as an important corollary thereto
9
that one purpose of the Rule's time limitation is to 'assure that the district court's power to reduce sentence will not be misused as a substitute for the consideration for parole by the Parole Board,' Stollings, 516 F.2d at 1289, by 'hold[ing] a timely motion for reduction of sentence in abeyance for months or years and then seek[ing] to grant it on the basis of defendant's conduct in prison,' [United States v.] Mendoza, 565 F.2d [1285] at 1290 [5th Cir.1978].
10
United States v. Krohn, 700 F.2d 1033, 1037 (5th Cir.1983); accord Diggs, 740 F.2d at 246-47 ("The 'reasonable time' contemplated ... is a reasonable time to decide the issue presented by the rule 35 motion, not a license to wait and reevaluate the sentencing decision in the light of subsequent developments.");4 see also United States v. Dean, 752 F.2d 535, 544 (11th Cir.1985) (sentencing judge may not use Rule 35(a) as means to usurp authority of Parole Commission).
11
Even if, once a timely Rule 35(b) motion has been filed, a district court retains jurisdiction for a reasonable time to reduce sentence after the 120-day time limit specified in the rule has expired, no period of extension of whatever length is reasonable if it has been allowed by the court for a purpose in contravention of the rule. In the instant case, the District Judge clearly delayed acting on appellee's motion in order to take developments subsequent to sentencing into account, rather than to reconsider his original decision. Contrary to appellee's argument, it is not necessary that a district judge deliberately override a decision of the Parole Commission to impermissibly usurp the Commission's role. The facts of the instant case are precisely those that Judge Haynsworth suggested in United States v. Stollings, 516 F.2d 1287 (4th Cir.1975), would not justify the retention of jurisdiction by the district court:
12
The time limitation appears to have as its dual purpose the protection of the district court from continuing and successive importunities and to assure that the district court's power to reduce a sentence will not be misused as a substitute for the consideration of parole by the Parole Board. We need not speculate, however, that a judge would hold a timely motion for reduction of sentence in abeyance and unacted upon for months or years and then seek to grant it on the basis of the defendant's conduct in prison.
13
516 F.2d at 1289; see also Diggs, 740 F.2d at 246-47, and Krohn, 700 F.2d at 1037, quoted previously, and cases cited therein. Therefore, we hold that the District Court abused its discretion in granting appellant's Rule 35 motion under subsection (b).
14
Since we conclude that, in substituting its judgment for that of the Parole Commission, the District Court abused its discretion when it reduced appellant's sentence, we decline to consider whether any delay of a particular duration or longer in acting upon a Rule 35(b) motion is unreasonable per se. However, we do question whether an 18-month delay, such as that present in this case, could be considered reasonable under any set of circumstances that we have been able to imagine.
II.
15
The analysis above, however, does not fully resolve the case. There remains the question of whether the District Judge's statement--that if he had not believed that he could act as he ultimately did, he would not have imposed such a lengthy sentence--warranted modification of defendant's sentence under Rule 35(a). He urges that the instant case is equivalent to DeMier, supra, and United States v. Ruster, 712 F.2d 409 (9th Cir.1983), in which misinformation provided by a probation officer to the trial court prior to sentencing resulted in the imposition of a sentence requiring a longer minimum term of imprisonment prior to initial consideration for parole than was intended by the sentencing judge, and was deemed to have violated the defendant's due process rights in the sentencing process.5
16
In United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), the Supreme Court held that post-sentencing changes in the guidelines of the Parole Commission, resulting in a longer mandatory minimum term of imprisonment than intended by the trial judge in imposing sentence, did not provide a basis for collateral attack on the sentence pursuant to 28 U.S.C. Sec. 2255.6 The Court concluded that "there is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge," 442 U.S. at 187, 99 S.Ct. at 2241, reasoning that a sentence imposed in reliance on assumptions concerning parole that are frustrated by subsequent actions of the Parole Commission, is not based upon " 'misinformation of a constitutional magnitude,' " 442 U.S. at 187, 99 S.Ct. at 2241 (quoting United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) ); and that "the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term." 442 U.S. at 190, 99 S.Ct. at 2243.
17
Although Addonizio involved a motion under Sec. 2255, we regard it as equally relevant to Rule 35 motions. While Rule 35 and Sec. 2255 are not coterminous, United States v. Santora, 711 F.2d 41, 42 (5th Cir.1983); 3 C. Wright, Federal Practice & Procedure 2d Sec. 583, at 391, both provide a vehicle for attacking an illegal sentence. The well-established rule is that a motion made on such grounds under either Sec. 2255 or Rule 35 may be considered on its merits without regard to the label ascribed to the motion. See Andrews v. United States, 373 U.S. 334, 337-38, 83 S.Ct. 1236, 1238-39, 10 L.Ed.2d 383 (1963); Duggins v. United States, 240 F.2d 479, 484 (6th Cir.1957); 3 C. Wright, supra, at 392-93 & nn. 19-20 (1982). To the extent that the statutory remedy overlaps that provided by the rule, there is no difference between "an illegal sentence and ... a sentence imposed in an illegal manner" under Rule 35(a), and a sentence subject to correction for those reasons under Sec. 2255. See Dean, 752 F.2d at 544 n. 18; see also United States v. Henry, 709 F.2d 298, 313 (5th Cir.1983) (en banc). If anything, the sweep of the statutory remedy is broader than that of the rule.7
18
In the DeMier case, the district judge was advised by the Probation Office prior to sentencing that the defendants could be expected to serve 16-20 months of their three year sentences, based upon then current parole guidelines. In fact, the Parole Commission adopted a 40-52 month guideline. The defendants did not begin serving their sentences until disposition of their unsuccessful appeal, nearly one year after their sentences were first imposed. Consequently, the Probation Office made its report based upon the 1978 guidelines, while the Parole Commission applied the 1979 guidelines. The district court concluded that "[t]he important factual circumstance is that this Court was not furnished accurate information at the time it imposed sentence in regard to whether the 1978 or the 1979 guidelines would be applied by the Parole Commission when it decided how long it would keep defendants in custody." United States v. DeMier, 520 F.Supp. 1160, 1166 (W.D.Mo.1981), aff'd, 671 F.2d 1200 (8th Cir.1982). After stating the rule that " '[m]isinformation ... or material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process,' " 520 F.Supp. at 1167 (quoting United States v. Malcolm, 432 F.2d 809, 815 (2d Cir.1970), and United States v. Stein, 544 F.2d 96, 102 (2d Cir.1976) ), the court concluded that the misinformation furnished it by the Probation Office was of constitutional magnitude. 520 F.Supp. at 1168. The court acknowledged Addonizio, but labeled as dictum8 the Supreme Court's statement that a sentencing judge has no enforceable expectations with respect to the actual release date of a sentenced defendant short of his statutory term. Id. at 1169.9
19
The appellate court in DeMier attempted to distinguish Addonizio on the basis that the district judge had not acted because his expectations had been frustrated by Parole Commission's subsequent application of its guidelines, but because he was furnished with misinformation prior to sentencing about which guidelines would be applied. 671 F.2d at 1204 & n. 13., see 520 F.Supp. at 1161 n. 2. First, although the appellate court stated that the Probation Office had relied on outdated guidelines because of a delay by the Administrative Office of the United States Courts in mailing the revised guidelines, 671 F.2d at 1207, the district court clearly ascribed the discrepancy at issue to the lapse of time relating to the pendency of defendants' appeal. Thus, the information supplied by the Probation Office prior to sentencing was accurate at the time it was given, and was misinformation only in retrospect. Second, and more importantly, in light of the rationale of Addonizio that a sentence is not "illegal" merely because the sentencing judge was mistaken about the length of time that would have to be served prior to parole, the distinction between a sentencing judge acting on parole guidelines that are subsequently changed, and misinformation respecting parole guidelines applicable at the time of sentencing, is a tenuous one at best. See Dean, 752 F.2d at 543-44.
20
Even if we were persuaded by the reasoning in DeMier, which we are not, that case is logically distinguishable from the instant case. The District Judge below did not rely on misinformation provided by a Probation Officer, or anyone else. Rather, if the sentencing judge's subjective intent is being frustrated, it is as the result of his own misunderstanding of the law. In Ruster, in imposing a sentence of 15 years on the defendant, the trial court inquired of the Probation Officer whether the sentence "actually amounts to about 48 months," to which the Probation Officer replied, "48 to 60 months, your honor." 712 F.2d at 412. In fact, under 18 U.S.C. Sec. 4205(a), a prisoner sentenced to a term of one year or more must serve at least a third of the term before becoming eligible for parole. The objective requirements of the statute, however, unlike the precise application of its guidelines that will be made by the Parole Commission in a given case, were or should have been within the knowledge of the judge. Cf. United States v. Coyer, 732 F.2d 196, 200 n. 5 (D.C.Cir.1984) ("[A]ppellee was faced with no after-the-fact, post-sentencing change in Parole Commission policy that frustrated the District Court's 'sentencing expectations.' The objective criteria--or guidelines--applicable to appellee remained as constant and unchanging as the laws of the Medes and Persians."); United States v. DiRusso, 535 F.2d 673, 675 (1st Cir.1976) (prior to Addonizio, declining to decide whether a sentence affected by post-sentencing changes in Parole Guidelines was subject to collateral attack under Sec. 2255, since "[t]he court apparently knew what the guidelines called for but assumed a much greater degree of flexibility in their application than is the case").
21
Moreover, the court in Ruster made no reference to Addonizio. Rather, it relied, as did the district court in DeMier, on the principle that "[w]hen a trial judge relies on materially false or unreliable information in sentencing a defendant, the defendant's due process rights are violated." 712 F.2d at 412 (citing United States v. Williams, 668 F.2d 1064, 1072 (9th Cir.1981). However, the cases establishing that principle, relied upon by the courts in Ruster and DeMier, are inapposite, because they are concerned with reliance on an erroneous fact, rather than a misapprehension of the applicable law. E.g., Williams, 668 F.2d at 1071 (reliance on inaccurate statement in presentence report that only basis for reversal of prior conviction was violation of right to speedy trial); see Dean, 752 F.2d at 544-45; Coyer, 732 F.2d at 199-200, 201. There is a certain circularity in appellant's argument for, if it were accepted in the instant case, every reversal of a district court's grant of a Rule 35 motion under subsection (b) would impliedly raise the possibility that the sentence was based on a misunderstanding and hence subject to reduction under subsection (a). We find Addonizio controlling in this situation where the only basis for the adjustment to the sentence was a possible "frustration of the subjective intent of the sentencing judge," not any objective error in the interpretation or application of the law. Paraphrasing the Court in Addonizio, as a practical matter, the subjective intent of the sentencing judge, expressed in the instant case nearly two years after the sentence was imposed, provides a questionable basis for testing the validity of his judgment. 442 U.S. at 187, 99 S.Ct. at 2241. Therefore, we conclude that appellant's sentence was neither illegal nor imposed in an illegal manner, and thus was not subject to correction under Rule 35(a).
III.
22
In concluding as we have above, we are not insensitive to the fact that any misapprehensions on the part of the District Judge that may have affected the length of appellant's sentence, although lawfully imposed and within statutory limits, were totally beyond his control. We were advised at oral argument that the government has undertaken to recommend to the Parole Commission, if the government prevailed in this case on appeal, that appellant be placed under parole supervision for the remainder of his original sentence rather than being returned to an institution, and that the Parole Commission has indicated its likely assent to that recommendation.
23
The order of the District Court is vacated and the case remanded for reinstatement of the original sentence.
1
Rule 35. Correction or Reduction of Sentence
(a) Correction of Sentence. The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. The Court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
2
Although not specified in the motion or in the order reducing sentence, it is clear that the motion was made and granted pursuant to subsection (b) of Rule 35, for reduction of a lawful sentence, rather than subsection (a), providing for correction of an illegal sentence or a sentence illegally imposed
3
By its terms, the 120-day time limit set forth in Rule 35(b) applies to the court, not the defendant. Moreover, Rule 45(b) states that "the court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them." Nevertheless, prior to the Supreme Court's decision in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), those circuits that had ruled on the issue were unanimous in the view that district courts retained jurisdiction for a reasonable time to act on Rule 35 motions filed within the 120-day limit. See United States v. Krohn, 700 F.2d 1033, 1035 (5th Cir.1983) (citing cases). Although the Addonizio Court stated in dictum that this time limit "is jurisdictional and may not be extended," 442 U.S. at 189, 99 S.Ct. at 2243, a majority of circuits continue to adhere to the view that the district courts retain jurisdiction for a reasonable time beyond the 120-day period to consider timely filed Rule 35 motions. See Diggs v. United States, 740 F.2d 239 (3d Cir.1984); United States v. Schafer, 726 F.2d 155 (4th Cir.1984); Krohn, supra; United States v. DeMier, 671 F.2d 1200 (8th Cir.1982); United States v. Rice, 671 F.2d 455, 459 & n. 5 (11th Cir.1982); United States v. Smith, 650 F.2d 206 (9th Cir.1981). On the other hand, the courts in United States v. Pollack, 655 F.2d 243 (D.C.Cir.1980), and United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984), have expressed doubt whether a district judge may ever reduce sentence under Rule 35 once the 120-day time limit has expired. In both instances, however, the cases were decided on the narrower ground that the time periods involved, intervals of 14 and 10 months respectively between the beginning of the running of the 120-day period and the actual reduction in sentence, were unreasonable
In Kajevic, the Seventh Circuit undertook a detailed examination of the evolution of Rule 35(b). It found that the rule's predecessors, the Notes of the Advisory Committee and the Addonizio dictum, as well as the literal language of the rule and Rule 45(b), all suggested that the 120-day limit was mandatory and jurisdictional. Were we writing on a clean slate, that analysis might be persuasive. However, those circuits that took the opposing view before Addonizio, did so "despite the acknowledgment that a literal reading of Rules 35(b) and 45(b) would lead to a contrary conclusion." Krohn, 700 F.2d at 1036; see also Smith, 650 F.2d at 209. Thus, they have reasoned that "the Court in Addonizio stated no new legal proposition, but merely referred to the literal language of the Federal Rules of Criminal Procedure.... Addonizio in no way undermines the vitality of cases ... which view the defendant's filing of a Rule 35 motion within 120 days as the critical act entitling the trial courts to rule on the motion and exercise appropriate discretion to reduce the sentence." DeMier, 671 F.2d at 1205-06; accord Krohn, 700 F.2d at 1037.
This Circuit has not yet ruled on the question of whether the time limit in Rule 35 is jurisdictional, although in United States v. Blanton, 739 F.2d 209, 213 (6th Cir.1984), it suggested that jurisdiction might extend beyond the 120-day period where a timely motion has been filed or a showing of special circumstances justifying delay has been made. 739 F.2d at 213-14. In Blanton, however, the court reversed the grant of a Rule 35(b) motion, made 305 days after the mandate of the court of appeals was recorded in the district court, because it was neither timely filed nor in reliance on an affirmative statement of the court or government that would excuse the delay.
On April 29, 1985, the Supreme Court transmitted to Congress an amended version of Rule 35(b), which incorporates the predominent application of the rule:
(b) REDUCTION OF SENTENCE. A motion to reduce a sentence may be made, or the court may reduce sentence without motion, within 120 days after the sentence is imposed probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
52 U.S.L.W. 4516 (May 7, 1985).
4
Taylor cites United States v. Ochs, 490 F.Supp. 1206 (S.D.N.Y.), aff'd, 636 F.2d 1205 (2d Cir.1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3005, 69 L.Ed.2d 388 (1981), for the proposition that "commendable prison deportment" is a permissible basis upon which a district judge may grant a Rule 35 motion. In fact, the judge in Ochs expressed skepticism about whether prison behavior was predictive of future conduct, concluding that "commendable prison deportment is only some evidence on the issue to be resolved, neither to be disregarded nor overestimated." 490 F.Supp. at 1216. When a Rule 35(b) motion is made, the district judge can, of course, " 'reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim.' " United States v. Colvin, 644 F.2d 703, 705 (8th Cir.1981) (quoting United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). That a district judge is not required to close his eyes to developments favorable to the movant's request, does not mean that the judge may refrain from ruling indefinitely for the specific purpose of observing the course of the movant's "reformation."
5
In the Dean case, in which the court rejected the argument that a sentence based upon erroneous information provided by a probation officer was subject to reduction under Rule 35(a), the court distinguished DeMier in part on the basis that the motion in DeMier was granted under Rule 35(b), rather than Rule 35(a). 752 F.2d at 545 n. 19. Although we agree with the Dean court that DeMier is irreconcilable with Addonizio, we do not not agree that the DeMier court was acting under Rule 35(b). The court never refers to subsection (b), consistently referring only to "Rule 35". The appellate court does focus on whether the district court lacked jurisdiction to act, either because 120 days had elapsed, or because it delayed acting for an unreasonable time thereafter. However, the rule's 120-day time limit, while contained in subsection (b), is also applicable to sentences subject to correction under subsection (a), which have been imposed in an illegal manner. See 3 C. Wright, supra, Sec. 585
6
Title 28 U.S.C. Sec. 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
....
... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringment of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
7
Thus, our disposition of plaintiff's contention, that reduction of his sentence under Rule 35 was not justified on the basis of the sentencing judge's misapprehension of the scope of his discretion under that rule, necessarily forecloses him from raising the same contention in the future under Sec. 2255, although he would not be foreclosed from making a Sec. 2255 application on some other ground. See 3 C. Wright, supra, Sec. 602
8
It is not clear that the court recognized the full import of Addonizio, since it appears to have regarded United States v. Lacy, 586 F.2d 1258 (8th Cir.1978) (en banc), as good law, 520 F.Supp. at 1161 n. 2, although the Eighth Circuit had already held in United States v. Washington, 608 F.2d 292, 293 (8th Cir.1979) (per curiam), that "[t]he Supreme Court's opinion in Addonizio reverses this circuit's previous view of this issue in United States v. Lacy...."
9
The court reasoned that "Congress has not attempted to deprive district judges of their traditional sentencing power. Nor has the Congress attempted to transfer the power to impose all sentences to the Parole Commission." 520 F.Supp. at 1169. But cf. United States v. Coyer, 732 F.2d 196, 200 (D.C.Cir.1984) (reversing finding that a sentence, based upon a probation officer's erroneous prediction of the guideline that would be applied, violated due process) ("At bottom, the District Court ... transformed the estimate of ... a court employee ... into a conclusive determination binding upon the Parole Commission, ... abort[ing] an elaborate congressionally mandated process by which the circumstances of each federal inmate are reviewed through the Parole Commission's application of highly developed guidelines....")
| {
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} |
J-A21003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
W. W. :
:
Appellant : No. 384 EDA 2018
Appeal from the Order Entered January 17, 2018
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001302-2017
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 28, 2019
Appellant, W.W., seeks review of the order denying his pretrial motion
to dismiss based on the compulsory joinder rule and double jeopardy. In a
previous proceeding, Appellant pled guilty to charges arising from his sexual
assault of a minor. He now seeks to preclude prosecution on charges arising
from child pornography found on the computer seized from him during the
prosecution of the sexual assault case. After careful review, we reverse as to
the counts of child pornography relating to two of the videos found on
Appellant’s computer; we affirm as to all other counts, including the 126
remaining counts of child pornography.
On December 23, 2013, the Pennsylvania State Police (“PSP”) began an
investigation into a sexual assault perpetrated by Appellant against a twelve-
J-A21003-18
year-old victim (“the Victim”).1 Affidavit of Probable Cause, 3/20/17, at ¶ 3.
The Victim was interviewed at the Scranton Children’s Advocacy Center, where
she disclosed she was sexually assaulted by Appellant multiple times between
November 2011 and August 2013. See id. According to the affidavit of
probable cause in the current action, “[the Victim] disclosed that this began
when [Appellant] showed her a video of an older male having sex with a young
girl. She related it was ‘Kiddie Porn.’ . . . She related that it may have been
contained on a flash drive which he had inserted into the computer.” Id.
The PSP obtained and executed a search warrant for Appellant’s
computer. “On at least four occasions over the next year, from November
2014 to August 2015,” the trooper in charge of the investigation “checked
with the computer lab but the results of the analysis on [Appellant]’s laptop
were still pending.” Trial Court Opinion, 1/17/18, at 3.
Following [Appellant]’s sentencing for Indecent Assault [of
another minor victim] on a separate case,[2] and prior to his
transfer to state prison, he was interviewed by [PSP Corporal
Bruce] Wesnak at the Monroe County Correctional Facility on
December 16, 2015. In that interview, [Appellant] allegedly
admitted to having sexual contact with [the Victim] but denied
showing her any pornography or having any child pornography on
his computer.
____________________________________________
1 All facts relating to the sexual assault of the Victim are taken from the
affidavit of probable cause in the current matter, docket number CP-45-CR-
0001302-2017, unless otherwise noted. Nothing from the record for docket
number CP-45-CR-0000294-2016, including the notes of testimony from
Appellant’s guilty plea hearing, is included in the certified record for the
current matter, docket number CP-45-CR-0001302-2017.
2 Docket Number CP-45-CR-0002499-2013.
-2-
J-A21003-18
Id.
On April 6, 2016, at docket number CP-45-CR-0000294-2016 (“No. 294-
16”), Appellant pleaded guilty to involuntary deviate sexual intercourse with
a person less than sixteen years of age based upon his assault of the Victim.
Pursuant to a plea agreement, the Commonwealth nolle prossed eight
additional charges, none of which were child pornography or criminal use of a
communication facility. On October 31, 2016, the trial court sentenced
Appellant to ten to twenty years of confinement. Appellant did not file a direct
appeal.
Shortly thereafter, the PSP finished its search of Appellant’s computer
and discovered 128 images of child pornography. Two of those images were
videos of a male adult having intercourse with a female child, who was
approximately eight or nine years old.
On March 16, 2017, the PSP filed a criminal complaint against Appellant
at docket number CP-45-CR-0001302-2017 (“No. 1302-17”) charging 128
counts of child pornography and one count of criminal use of a communication
facility.
Appellant filed an omnibus pretrial motion at No. 1302-17, which
included a motion to dismiss.3 Appellant’s motion to dismiss alleged the
____________________________________________
3 Appellant’s omnibus pretrial motion also included a motion to enforce his
plea agreement at No. 294-16, which was likewise denied by the trial court on
January 17, 2018. Appellant’s motion to enforce his plea agreement pleaded
that “Due Process under both the Federal and Pennsylvania Constitutions”
-3-
J-A21003-18
charges at No. 1302-17 were barred on double jeopardy grounds and pursuant
to the compulsory joinder rule, 18 Pa.C.S.A. § 110.
At the hearing on Appellant’s motion, Corporal Wesnak averred, “[the
Victim] indicated that [Appellant] showed her a video of an older male having
sex with a young girl.” N.T. Hearing, 8/21/2017, at 20 (emphasis added).
Later in his testimony, after Corporal Wesnak reviewed the Victim’s written
statement, the following exchange occurred:
Q. Okay. And do you see where it says a few lines down that
she says that [Appellant] showed her videos?
A. Yes.
Q. Okay. And she is referring to child pornography; is that
correct?
A. It says, “showed me videos of fathers [and] daughters
doing it.”
N.T., 8/21/2017, at 25 (emphasis added).
The trial court subsequently entered an order denying the motion to
dismiss. Order, 1/17/2018. One day later, Appellant filed a motion requesting
that the trial court “enter an order finding that his Double Jeopardy issue is
non-frivolous and immediately appealable as a collateral order” pursuant to
____________________________________________
required him “to receive the benefit of his plea agreement.” Omnibus Motion,
7/17/2017, at ¶ 36. Appellant’s motion to enforce his plea agreement made
no reference to double jeopardy. See id. at ¶¶ 35-40.
In his brief to this Court, Appellant makes no mention of his motion to enforce
his plea agreement and does not raise any due process claims.
Consequently, we conclude that Appellant has chosen not to pursue any
appeal related to this motion to enforce the plea agreement.
-4-
J-A21003-18
Pa.R.Crim.P. 587. Pa.R.Crim.P. 587(B)(4) states: “In a case in which the
judge denies the motion [to dismiss on double jeopardy grounds], the findings
of fact shall include a specific finding as to frivolousness.” The trial court’s
order had not included any findings as to frivolousness.
The trial court entered an order finding his motion to dismiss non-
frivolous and immediately appealable. Appellant then filed this timely
interlocutory appeal.
Appellant presents the following issue for our review:
Whether the [t]rial [c]ourt erred when it failed to bar prosecution
under the Compulsory Joinder Statute (18 Pa.C.S.A. § 110) and
the Double Jeopardy Clauses in a subsequent prosecution for Child
Pornography, despite the fact that the former prosecution for
sexual assaults:
a. resulted in a guilty plea and jail sentence;
b. alleged the instant child pornography was possessed and
shown in the sexual assaults;
c. where a warrant for the child pornography, based upon
probable cause, was sought and obtained at the beginning
of the former prosecution; and
d. where these charges were filed, after sentencing on the
first case, when the Commonwealth neglected to execute
that warrant for over two (2) years after the warrant was
issued?
Appellant’s Brief, at 4.
As an initial matter, we address our jurisdiction over this appeal. See
Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa. Super. 2017) (holding
this Court has the ability to review questions of jurisdiction sua sponte). “The
denial of a pretrial motion to dismiss an indictment on double jeopardy
-5-
J-A21003-18
grounds is subject to appellate review unless it appears that the claim is
frivolous.” Commonwealth v. Miller, 198 A.3d 1187, 1190 n.1 (Pa. Super.
2018) (citation omitted). Here, the trial court determined Appellant’s double
jeopardy claim non-frivolous. We therefore possess appellate jurisdiction over
this appeal.
We turn to the merits of Appellant’s challenge. While Appellant explicitly
presents only a single issue, he cites to two related, but technically
independent, bases of relief. First, he contends the current prosecution
violates the prohibition against double jeopardy.
The prohibition against double jeopardy was designed to protect
individuals from being tried or punished more than once for the
same allegation or offense. The Fifth Amendment of the United
States Constitution provides, in relevant part, that no person shall
“be subject for the same offence to be twice put in jeopardy of life
or limb.” Likewise, Article I, § 10 of the Pennsylvania Constitution
provides that “No person shall, for the same offense, be twice put
in jeopardy of life or limb.” . . .
Id., at 1191 (citations omitted). “The double jeopardy protections afforded
by the United States and Pennsylvania Constitutions are coextensive and
prohibit successive prosecutions and multiple punishments for the same
offense.” Commonwealth v. Barber, 940 A.2d 369, 377 (Pa. Super. 2007)
(citation omitted).
Appellant blends his double jeopardy argument with an argument that
the current prosecution is barred by the compulsory joinder rule, 18 Pa.C.S.A.
§ 110. However, “[t]hough similar, the Double Jeopardy Clause and the
compulsory joinder rule are not coterminous.” Commonwealth v. Perfetto,
-6-
J-A21003-18
169 A.3d 1114, 1118 n.4 (Pa. Super. 2017) (en banc) (citations omitted),
appeal granted on other grounds, 182 A.3d 435 (Pa. 2018). “While in many
respects section 110 and the double jeopardy clause serve the same ends,
nevertheless, the two provisions are not one and the same.” Commonwealth
v. Johnson, 466 A.2d 636, 639 (Pa. Super. 1983).
Double jeopardy protections, constitutional in nature, require that any
waiver be knowing and intelligent. See id., at 640. In contrast, to waive the
protections provided by section 110, the decision to waive must only be
voluntary. See id.
Additionally, the provisions differ in their scope. Double jeopardy
protections arise when the same sovereign seeks to re-prosecute the same
person for the same act. See id. Section 110 provides, in certain
circumstances, against a subsequent prosecution based upon “the same
conduct or arising from the same criminal episode” for which the defendant
has already been tried. Id.
Here, Appellant offers no argument pursuant to the double jeopardy
clause distinct from his argument under § 110. See Appellant’s Brief at 18-
39. Further, there is no argument Appellant waived either his double jeopardy
or section 110 rights. Thus, if Appellant’s arguments under § 110 fail, his
double jeopardy claims must also fail. We therefore proceed to determine
whether Appellant is entitled to protection under section 110.
-7-
J-A21003-18
“Our review is plenary when the issue is whether the compulsory joinder
rule, 18 Pa.C.S.A. § 110, bars cases.” Commonwealth v. M.D.P., 831 A.2d
714, 717 (Pa. Super. 2003) (citation omitted).
According to the compulsory joinder rule:
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to
when prosecution barred by former prosecution for the
same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have
been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the former
prosecution unless the court ordered a separate trial
of the charge of such offense.
18 Pa.C.S.A. § 110(1).
With regard to Section 110 of the Pennsylvania Crimes Code, the
policies served by the statute are two-fold: to protect accused
persons from governmental harassment of undergoing successive
trials for offenses stemming from the same episode, and to
promote judicial economy and finality by avoiding repetitious
litigation.
Miller, 198 A.3d at 1191 (citation omitted).
Appellant first contends the current charges should be barred under
section 110(1)(i), because he “could have been convicted of the offense in the
-8-
J-A21003-18
first prosecution.” Appellant’s Brief at 29. Appellant was charged with 128
counts of child pornography pursuant to 18 Pa.C.S.A. § 6312(d)(1):
Any person who intentionally views or knowingly possesses or
controls any book, magazine, pamphlet, slide, photograph, film,
videotape, computer depiction or other material depicting a child
under the age of 18 years engaging in a prohibited sexual act or
in the simulation of such act commits an offense.
Id. (emphasis added).4
According to the evidence available at the time of the first prosecution,
the Victim viewed at least two videos of an adult male having intercourse with
a female child. See N.T., Hearing, 8/21/2017, at 25 (“showed me videos of
fathers and daughters doing it”). Thus, based on the Victim’s testimony, the
Commonwealth could have established the two counts of child pornography
related to the two videos depicting a male adult having intercourse with a
female child.
The Commonwealth contends, under the best evidence rule, it could not
have prosecuted Appellant for child pornography until it obtained the videos.
The best evidence rule requires a proponent to present an original recording
in order to prove the nature of its contents. See Pa.R.E. 1002. However, this
requirement is inapplicable where the opposing party has control of the
original and fails to present it when given a fair opportunity to rebut other
____________________________________________
4 Although parts of 18 Pa.C.S.A. § 6312 have been revised by the legislature
since the time that Appellant showed the victim the pornographic material,
between November 2011 and August 2013, see Affidavit of Probable Cause,
3/17/2017, at 1 ¶ 2, the language of subsection (d)(1) has remained
unaltered.
-9-
J-A21003-18
evidence of its contents at trial. See Pa.R.E. 1004. Thus, if Appellant had not
produced the videos that were allegedly in his possession, the Commonwealth
would have been excused from compliance with the best evidence rule.
Additionally, the Commonwealth had already seized Appellant’s
computer. Due to an apparent backlog at the forensic testing laboratory, the
Commonwealth did not receive a report on the contents of the computer until
after Appellant pled guilty in the first prosecution. This chronology, according
the Commonwealth, absolved it of any duty to comply with the compulsory
joinder rule.
However, the Commonwealth was not precluded from seeking a
continuance of the guilty plea in order to comply with its duties under the
compulsory joinder rule. See Commonwealth v. Lohr, 418 A.2d 688, 690-
691 (Pa. Super. 1980). If the Commonwealth had made a showing of due
diligence in obtaining the videos themselves, the delay imposed by the
continuance would have been excludable time under Rule 600. See id.; see
also Pa.R.Crim.P. 600(C)(1).
The Commonwealth has charged Appellant of violating 18 Pa.C.S.A. §
6312 (d)(1) based on his “knowing[] possession or control[]” of these two
videos. Criminal Complaint, 3/20/17 at 1. To obtain a conviction under section
6312(d)(1), the Commonwealth need not establish the defendant possessed
the child pornography. See Commonwealth v. Diodoro, 970 A.2d 1100,
1107 (Pa. 2009). Rather, the Commonwealth need only establish that the
defendant knowingly controlled child pornography. See id., at 1106-1107. As
- 10 -
J-A21003-18
a result, a defendant can be convicted of violating § 6312(d) if he “access[ed]
and view[ed] child pornography over the internet” even if he never possesses
the child pornography. See id., at 1108.
Under Diodoro, the Commonwealth could have convicted Appellant on
these two charges based purely on the Victim’s statements that he showed
these videos to her. As a result, pursuant to section 110(1)(i), we reverse the
trial court’s order denying the motion to dismiss as to the two counts of child
pornography relating to these two videos only.
In contrast, the Commonwealth did not have evidence of any other
pornographic images in Appellant’s possession or control when it prosecuted
him for sexual assault. Therefore, Appellant has not established the
Commonwealth was capable of convicting him on the remaining 126 charges
of possessing or controlling child pornography. The Commonwealth was not
required to join these charges with his first prosecution under section
110(1)(i).
Appellant next argues the current matter should be barred in its
entirety, because “it meets the same criminal episode test, along with its other
elements” pursuant to 18 Pa.C.S.A. § 110(1)(ii). Appellant’s Brief at 30. The
requirements of section 110(1)(ii) have been summarized as follows:
Under Section 110, the Commonwealth is prohibited from
prosecuting a defendant based on its former prosecution of the
defendant if the following four-part test is met:
(1) the former prosecution resulted in an acquittal or a conviction;
(2) the current prosecution must be based on the same criminal
conduct or have arisen from the same criminal episode as the
- 11 -
J-A21003-18
former prosecution; (3) the prosecutor must have been aware of
the current charges before the commencement of the trial for the
former charges; and (4) the current charges and the former
charges must be within the jurisdiction of a single court.
Commonwealth v. Shull, 811 A.2d 1, 4 (Pa. Super. 2002) (citation omitted).
Here, the Commonwealth does not dispute the first and fourth prongs
of the above test have been met. See Commonwealth’s Brief at 7-8; see also
Trial Court Opinion, filed Jan. 17, 2018, at 8 (trial court agrees that first and
fourth prongs are satisfied).
Appellant maintains “[t]he second prong is met because this was a
single criminal episode considering all the facts and circumstances.”
Appellant’s Brief at 36 (emphasis omitted). We disagree.
To determine whether various acts constitute a single criminal
episode warranting compulsory joinder, a court must consider two
factors: 1) the logical relationship between the acts; and 2) the
temporal relationship between the acts.3 In ascertaining whether
a number of statutory offenses are “logically related” to one
another, the court should initially inquire as to whether there is a
substantial duplication of factual, and/or legal issues presented by
the offenses.
3 The single criminal episode analysis essentially considers
the totality of the circumstances. Here, . . . since we
determine that the logical relationship is insufficient to
constitute a single criminal episode, the purpose of the rule
is satisfied and we do not address the temporal relationship.
M.D.P., 831 A.2d at 718–19 (internal citations omitted).
Based on our review of the certified record, we conclude the trial court
did not err in denying Appellant’s pretrial motion to dismiss the remaining 126
counts. Appellant’s guilty plea at No. 294-16 stems from the sexual assault
of the Victim. See Trial Court Opinion, filed 1/17/18, at 3. In the current
- 12 -
J-A21003-18
action, however, the Commonwealth seeks to prosecute Appellant for the
images of child pornography discovered on his computer. See Affidavit of
Probable Cause, 3/17/2017, at 2 ¶¶ 6-7; Trial Court Opinion, filed 1/17/18,
at 4. The trial court opinion comprehensively discusses and disposes of the
question of whether there was a logical relationship between the acts, as
follows:
[No. 294-16 and No. 1302-17] involve proof of different elements
for each offense, different victims, and different witnesses and
experts. The only similarities between the two offenses is that
[the Victim’s] interview with police led to the allegation that
[Appellant] may have possessed the child pornography and that
[Corporal] Wesnak investigated both crimes. Once police were
alerted that [Appellant] may have . . . child pornography, [PSP]
opened a separate investigation into the allegations which
included obtaining [a] search warrant for [Appellant]’s laptop and
having it analyzed by another party unrelated to the investigation
into the sexual assault of [the Victim]. Furthermore, the crimes
involved separate victims. While [the Victim] was the sole victim
of the sexual assaults in the first case, the child pornography
charges in the instant case involved different underage girls . . .
There was no indication that [the Victim] was depicted in any of
the videos or images of child pornography found on [Appellant]’s
laptop. For these reasons, we find that there is no logical
relationship between the instant prosecution and the first case.
Trial Court Opinion, filed 1/17/18, at 8-9. We agree with the trial court that
the remaining 126 charges are not based upon the same criminal episode as
that upon which Appellant was convicted at No. 294-16.
Since the trial court correctly concluded that the logical relationship is
insufficient to constitute a single criminal episode, “the purpose of the rule is
satisfied and we do not address the temporal relationship.” M.D.P., 831 A.2d
at 719 n.4. Additionally, as Appellant has failed to fulfill one prong of the four-
- 13 -
J-A21003-18
part test to satisfy section 110(1)(ii), see Shull, 811 A.2d at 4, his entire
challenge pursuant to that subsection fails, and we need not address the
remaining third prong.5 Accordingly, based on the record before us, we
conclude the trial court appropriately denied Appellant’s motion to dismiss as
to all remaining counts.6
In conclusion, we reverse in part and affirm in part. We reverse on the
two counts of child pornography based upon the two of videos of a male adult
having intercourse with a female child, as described in Paragraphs 7(1) and
7(3) of the affidavit of probable cause. We affirm as to the remaining 126
counts of child pornography and the one count of criminal use of a
communication facility.
Order affirmed in part and reversed in part.
Judge Olson and Judge McLaughlin concur in the result.
____________________________________________
5 Even if we were to consider this third prong – i.e., “the prosecutor must have
been aware of the current charges before the commencement of the trial for
the former charges,” Shull, 811 A.2d at 4 – we conclude that this prong has
also not been established, as police and therefore the prosecution were not
aware that any child pornography existed on Appellant’s computer at the time
he pleaded guilty at No. 294-16, Trial Court Opinion, filed Jan. 17, 2018, at 3,
9.
6 We note our decision is based upon the representations of the parties as to
what evidence the Commonwealth intends to present if the instant action goes
to trial.
- 14 -
J-A21003-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/19
- 15 -
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489 F.2d 714
Leroy WALKER, Jr., Appellant,v.UNITED STATES of America, Appellee.
No. 73-1563.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 13, 1973.Decided Jan. 16, 1974.
Kenneth K. Simon, Kansas City, Mo., for appellant.
J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before BRIGHT and STEPHENSON, Circuit Judges, and STUART,* district judge.
PER CURIAM.
1
Leroy Walker, Jr. appeals from a conviction of possession with intent to distribute narcotics in violation of 21 U.S.C. 841(a)(1). We have carefully reviewed the record and affirm the conviction.
2
On June 13, 1972, special agents assigned to DALE (Drug Abuse Law Enforcement Task Force) broke into an apartment dwelling located in Kansas City, Missouri, and, in the execution of a search warrant, seized quantities of heroin including approximately 32 grams contained in a plastic bag located upon a dresser top in a bedroom. Law enforcement officers found smaller quantities of heroin in the kitchen. The conviction against appellant rested upon the seizure of narcotics in the bedroom. Appellant and the lessee of the apartment, Ms. Gloria Tucker, were within the premises at the time of the search and seizure.
3
Appellant raises two issues on this appeal. He first claims that the evidence is insufficient to show him in possession of the heroin, arguing that his mere presence within the apartment will not sustain the guilty verdict. Second, appellant claims error in the trial court's refusal to instruct the jury regarding the failure of a party to produce an absent witness. Neither point carries any merit.
4
Regarding the sufficiency of the evidence, appellant argues that United States v. Bonham, 477 F.2d 1137 (3d Cir. 1973) (en banc), requires reversal since it is on all fours with the circumstances of this case. In Bonham, police executed a search warrant by entering the home of appellant's mother which was occupied by her two accused sons, her daughter, her daughter's husband, and the infant daughter of one son. In searching the shared bedroom of the two sons, police found narcotics concealed in a hidden recess above the bedroom doorway. The court held that this fact, without more, was not sufficient to sustain the conviction, for:
5
Here there was nothing except the joint occupancy of the room upon which an inference of possession could be based. A fact finder could only speculate whether both of the room's occupants or a particular one of them even knew of the cache, much less exercised control over the hidden contraband.
6
We have not overlooked the testimony of one of the searching officers that suspicious articles other than heroin were found in plain view on a table in the bedroom. But even if the prosecution had proved that these articles were marijuana and phenaphen, as the officer said he suspected, appellant's awareness of their presence would be no evidence of knowledge that heroin was concealed elsewhere. (477 F.2d at 1139.)
7
We have no quarrel with this decision, for the Bonham court itself distinguishes a case in which the narcotics are hidden, as in Bonham, from one, like the instant case, where the narcotics are in plain view. 477 F.2d at 1138-1139; cf. United States v. Davis, 461 F.2d 1026 (3d Cir. 1972). Here, the evidence inexorably points to appellant as constructively possessing the narcotics in question. We briefly detail some of the circumstances.
8
Although Ma. Tucker had rented the apartment approximately one month before the raid, the evidence indicated that appellant was more than a temporary occupant. He possessed a duplicate set of keys to the apartment. Although Walker was discovered in the nude when law enforcement officers entered the apartment, the searchers found the clothes he had been wearing hung in the bedroom closet near where the heroin was found. Other male clothing hung in the closet, his wallet was on the dresser, and sets of underclothing were in the dresser drawers. Ms. Tucker conceded Walker was a 'boyfriend' and the building manager testified to seeing Walker in the apartment complex about 10 or 15 times and noted the overnight presence of Walker's Cadillac automobile in the apartment parking lot the same number of times.
9
Upon entry into the apartment, police observed that Walker stood an arm's length away from a loaded revolver which lay upon a nearby counter top. Ms. Tucker in her own testimony denied ownership of the narcotics and the loaded firearm. While she sought to suggest that Herb Woody Jones, a government informer, had delivered the heroin to the apartment on the day of the search, her testimony in this respect was impeached.
10
From our review of the record, we find ample evidence to support a reasonable inference that appellant jointly occupied the premises where the heroin was discovered and that he was in knowing control or dominion over the heroin in question. See United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); United States v. Davis, supra.
11
As to the second issue, we find no merit to the claim that the court erred in failing to give the 'missing witness' instruction.1 Appellant made no adequate showing that the government at the time of trial possessed the sole power to produce Jones as a witness. Moreover, appellant did not request that the government make Jones available as a witness, either at the time of trial or earlier. There is no error. See Johnson v. United States, 291 F.2d 150, 155 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961).
12
Accordingly, we affirm.
*
WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation
1
See, e.g., E. Devitt & C. Blackmar, Federal Jury Practice and Instructions 11.33 (1970):
If it is peculiarly within the power of either the prosecution or the defense to produce a witness who could give material testimony on an issue in the case, failure to call that witness may give rise to an inference that his testimony would be unfavorable to that party. However, no such conclusion should be drawn by you with regard to a witness who is equally available to both parties, or where the witness's testimony would be merely cumulative.
The jury will always bear in mind that the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
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84 So.2d 337 (1955)
Edna L. EVANS
v.
Maurice F. EVANS, Jr.
6 Div. 934.
Supreme Court of Alabama.
December 22, 1955.
Abercrombie & Weeks, Birmingham, for appellant.
Hogan & Calloway, Birmingham, for appellee.
STAKELY, Justice.
This is an appeal from a decree modifying a divorce decree as to the support and maintenance provisions thereof and refusing to hold the appellee in contempt for failure to pay alleged unpaid installments due for such maintenance and support.
*338 On September 17, 1943, Edna L. Evans (appellant) filed her bill for divorce against Maurice F. Evans (appellee). On May 18, 1944, the court entered a final decree dissolving the bonds of matrimony theretofore existing between Edna L. Evans and Maurice F. Evans. In the decree the court granted the care, custody and control of the minor children, Patricia Ann Evans and John Franklin Evans, to the mother Edna L. Evans. The court further ordered Maurice F. Evans to pay the complainant the sum of $100 each month for the support and maintenance of herself and of the children payable semi-monthly in installments of $50 each on the 12th and 27th days of each month, the first payment to be made on September 27, 1943.
On June 30, 1955, Maurice F. Evans filed a petition seeking to modify the provisions for support and maintenance contained in the divorce decree, alleging substantial changes regarding the station in life, earnings and earning capacities, prospective earnings and general financial abilities of the parties to the decree, the details being alleged in substance as follows. Maurice F. Evans has remarried and is now residing in Jackson, Mississippi, with his present wife. By his present marriage he is the father of two children, Sandra Kay Evans and Jeanine Clair Evans, who together with his present wife are solely dependent on petitioner for their support and maintenance. The birth of a third child is expected in the early part of August, 1955.
At the time of the original divorce decree of May 18, 1944, petitioner was earning in the neighborhood of $350 per month and his ex-wife Edna Evans and the children of his former marriage, John Franklin Evans and Patricia Ann Evans, were then his sole dependents. In October, 1949, petitioner was earning in the neighborhood of $700 per month and agreed to increase the amount payable monthly for the support and maintenance of the children of the former marriage to the sum of $120 per month.
In 1952 and 1953 the earnings of petitioner were greatly decreased due to a financial set back and a change in employment. Throughout 1954 his average earnings were approximately $284 per month and in 1955 his earnings averaged only a fraction above that amount monthly.
Because of the illness of his present wife and children and because of the increase in the cost of support and maintenance of the present wife and children and because of his earnings as compared with expenditures, necessary to support and maintain his present wife and children, petitioner is unable to maintain payments due his ex-wife Edna L. Evans for support and maintenance of the children of the former marriage with the sum of $120 per month nor the sum of $100 per month.
Petitioner is deeply in debt and his great financial obligations are such that he cannot adequately maintain and support his present wife and children and continue to pay his ex-wife Edna L. Evans support and maintenance for the children of the former marriage.
Edna L. Evans has brought action against petitioner in Jackson, Mississippi, and threatens to garnishee his wages and otherwise cripple and impair the earning capacity of petitioner. Furthermore Edna L. Evans is at present earning an amount which with a small substantially reduced support and maintenance by the petitioner will adequately support and maintain the children of the former marriage.
There was a demurrer to the foregoing petition, which, according to the record, was not acted upon by the court.
On July 12, 1955, a petition for a rule nisi was filed by Edna L. Evans in which it is alleged that Maurice F. Evans is in arrears in his payments to Edna L. Evans to the extent of $1,850 and that he has willfully failed to pay this sum as he was ordered to do by the court though he is able to do so. The petitioner prays the court to make an order requiring Maurice Evans to show cause as to why he should not be adjudged guilty of contempt of court for failure to obey the order of the court requiring him to pay the amount provided for by the original decree.
*339 Upon presentation of the verified petition of Edna L. Evans for a rule nisi for failure to comply with the decree rendered May 18, 1944, the court issued a rule nisi to Maurice F. Evans commanding him to appear before the court and show cause if he has any why the petition should not be granted and he be adjudged in contempt of court.
On May 23, 1954, Edna L. Evans filed a petition in the Circuit Court of the Tenth Judicial Circuit of Alabama, wherein the aforesaid divorce decree was rendered, alleging in substance the marriage and divorce to which reference has already been made and the decree for maintenance and support of the children of the former marriage to which reference has also been made, and further alleging that the children reside with the petitioner Edna L. Evans and are persons to whom a duty of support is owed, and that this duty has been imposed by Act No. 879 of the Legislature of 1951, Acts of 1951, p. 1515 as amended by Act No. 824, Acts of 1953, p. 1110, this petition further alleging that Maurice F. Evans has failed, neglected and refused to provide support to petitioner and the aforesaid minor children in accordance with their needs and that such failure, neglect and refusal has continued for a long period of time and since the month of December, 1953, Maurice F. Evans has not contributed to the support of petitioner and the minor children.
The prayer of the petition is that the court will find that respondent owes a duty of support to petitioner and the minor children and that a court of the State of Georgia may obtain jurisdiction of respondent and his property. It is further prayed that the court will cause a certified copy of this petition and an authenticated copy of the aforesaid Acts to be transmitted to the proper district court in Atlanta, Milton County, Georgia.
On March 26, 1954, the Circuit Court of the Tenth Judicial Circuit of Alabama certified that the petition of Edna L. Evans shows that Maurice F. Evans owes a duty of support to Patricia Ann Evans and John Franklin Evans, now in the custody of Edna L. Evans, and further certified that the petition sets forth facts showing that a District Court of Georgia, sitting in Atlanta, in the County of Fulton, Georgia, may obtain jurisdiction of Maurice F. Evans or his property and further that Maurice F. Evans, without just cause or legal excuse, failed to provide support for petitioner and the aforesaid minor children as required by the law and statutes of the State of Alabama, and further that Maurice F. Evans has paid $51.50 for the support of the aforesaid minor children since December 1953.
On November 17, 1954, there was a further order of the Circuit Court of the Tenth Judicial Circuit of Alabama, which decree ordered that the cause be and is hereby transferred to "Disposed of Docket of the Court" without prejudice and that the costs are taxed against respondent for the collection of which "let execution issue."
On July 19, 1955, the present cause was submitted for final decree upon the petition of Maurice F. Evans to modify the final decree of divorce heretofore rendered in the cause and upon the petition for rule nisi of Edna L. Evans and the rule nisi issued as prayed for in the petition. The court in its decree adjudged as follows. (1) That causes No. 57931 and 93982 are hereby consolidated (Cause No. 57931 is the cause in which the original decree of divorce was rendered and in which the petition for modification of the provisions for support and maintenance was filed, and Cause No. 93982 is the petition of Edna L. Evans filed under the aforesaid statutes of the State of Alabama in connection with the failure of Maurice F. Evans to contribute to the maintenance and support of petitioner and the minor children). (2) The court denied the petition of Edna L. Evans for the rule nisi and discharged the respondent. (3) The court found that the arrearage in payments of support and maintenance to the complainant Edna L. Evans amounted to the sum of $580. The court further provided that the foregoing amount shall be paid to Edna L. Evans at the rate of $10 per month, $5 on the first and 15th of each month hereafter until the aforesaid sum of $580 has been liquidated. (4) The court further *340 found that in lieu of the sum for support and maintenance heretofore ordered, the respondent shall pay to the complainant the sum of $25 on the first and 15th of each month thereafter, making a total of $60 each month, payable $30 on the first and fifteenth days of each month, effective for July, 1955. (5) The respondent was ordered to pay the complainant for her solicitor of record the sum of $100 for defending against the petition of Maurice F. Evans. (6) The costs were taxed against the respondent "for which let execution issue."
At the outset we call attention to the fact that while testimony was heard orally before the court on the petition for modification to which we have referred, the testimony is not contained in the present record. The result is that the facts as found by the court will be taken as true. Only such facts and those which are admitted in the pleadings can be considered. Edge v. Bice, Ala., 82 So.2d 252. For cases considering an analogous situation where the case was tried on the law side of the docket see Chapman v. State, 249 Ala. 30, 29 So.2d 286, and Central of Georgia Railway Co. v. Hinson, 262 Ala. 223, 78 So.2d 286.
I. According to the record there was no ruling by the court on the demurrers of the appellant to the petition to modify. There was no error in this regard. This court has held that unless a party secures a ruling on a demurrer, it will be presumed on appeal that the demurrer was withdrawn or abandoned. McNeil v. State, 71 Ala. 71; Alabama National Bank v. Hunt, 125 Ala. 512, 28 So. 488; Newman v. Borden, 239 Ala. 387, 194 So. 836.
II. The court ordered that the petition for rule nisi be denied and discharged the respondent. The record fails to show an answer to the writ by Maurice F. Evans. We have often held that in proceedings involving the custody of children or their support and maintenance, we will not be governed by legal niceties in pleading. Since we do not find in the record any objection to the procedure here taken, we find no reversible error in this regard. Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212; Brown v. Jenks, 247 Ala. 596, 25 So.2d 439; Rushing v. Rushing, 258 Ala. 390, 63 So.2d 560. Furthermore the court had jurisdiction of the subject matter and the parties before it and accordingly the want of pleading may be waived and the party against whom the decree is adverse cannot be later heard to complain that there was no issue arrived upon in the case as such objection was waived by the party's introduction of evidence. Atkins v. Atkins, 253 Ala. 43, 42 So.2d 650; Manufacturers' Finance Acceptance Corporation v. Autrey, 228 Ala. 149, 153 So. 181; Miller v. Bryant, 25 Ala.App. 564, 151 So. 362.
III. It is argued that the court was in error in consolidating case No. 57931 with case No. 95382. There was no objection in the lower court to this procedure. We find no error in this respect. Courts of equity have the inherent power to consolidate suits and hear them at the same time. This is so because the court has general power to take reasonable action for the transaction of and regulation of its business. Such a matter rests within the sound discretion of the court. Hagan v. Riddle, 209 Ala. 606, 96 So. 863; Ex parte Brown, 58 Ala. 536; § 259, Title 7, Code of 1940. We call attention to the fact as shown by the record, that the proceedings brought by appellant under the reciprocal support act to which we have referred, had been transferred to "the disposed of docket" without prejudice. We can see no injury to the appellant from the action of the court in consolidating the two cases. It seems to us that the court had the right to make this consolidation in the interest of uniformity and in order to clarify the situation as to the disposition of case No. 93982 when it consolidated that case with the case in which the decree of modification was made.
IV. As to the modification of the original decree for maintenance and support, we have before us only the petition for modification and the court's decree *341 thereon. We do not have the evidence on which the court acted in rendering its decree. According to the petition for modification, since the original divorce decree, Maurice F. Evans is living in another state with his present wife. By his present marriage he is the father of two children who together with his wife are solely dependent upon him for their support and maintenance. In addition a third child is expected who will, of course, be dependent upon the father for support. At the time of the original decree of divorce Maurice F. Evans was earning in the neighborhood of $350 per month. He increased the allowance of $100 per month to $120 per month when his earnings reached the amount of $700 per month. Conditions began to get worse in 1952 and so continued in 1953, 1954 and 1955. With loss of his job he was forced to accept another job paying considerably less money in an attempt to support his present family and continue to make payments to his former wife. In 1954 his average earnings were $284 per month and in 1955 only a fraction above that amount. His present wife became ill and he became deeply in debt. We think it is apparent that Maurice Evans simply did not have the money to support his present family and continue the support of his ex-wife and his former children as provided in the original decree. We want to make it clear that the fact that the husband has remarried, thereby increasing his expenses, is not within itself such a change in the condition of the parties as to justify a modification of the original decree for support and maintenance. It is equally true, however, that the fact that a divorced husband has remarried is a circumstance that may be considered along with other circumstances in weighing the equities of the case, where he requests the court to reduce support and maintenance payable to minor children. Stewart v. Stewart, 261 Ala. 374, 74 So.2d 423; Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89.
When the entire situation is considered, it seems to us that the changes in circumstances are substantial and the court had the right in its discretion to modify the decree. We indulge the presumption, in the absence of any evidence in the record, that the evidence supported the decree of the court. McPherson v. Hood, 191 Ala. 146, 67 So. 994. We certainly are not able to say that the decree of the court which was based on evidence heard orally before the court was palpably wrong.
There was no effort in the decree of the court to abate amounts already due by Maurice Evans to his former wife Edna L. Evans. The court simply found that the amount in arrears aggregated $580 and proceeded after hearing the modification petition to provide additional time and method of payment for the accrued installments in arrears as the court had a right to do. Armstrong v. Green, 260 Ala. 39, 68 So.2d 834. The court then proceeded, as it had a right to do, to reduce the amount of future payments in keeping with the financial ability of Maurice Evans.
It is true that Maurice Evans failed to pay a part of the accrued installments provided for in the original decree of divorce. The court, however, found that he was not guilty of contempt as he was unable to pay, as shown by the evidence. There is no doubt that inability to pay is a defense for failure to comply with the decree providing for payment. Ex parte Stephenson, 34 Ala.App. 1, 40 So.2d 713; Ex parte Gunnels, 25 Ala.App. 577, 151 So. 605; Robertson v. State, 20 Ala.App. 514, 104 So. 561; Adair Bros. Co. v. Gilmore, 106 Ala. 436, 17 So. 544; Webb v. Webb, 140 Ala. 262, 37 So. 96; 12 Am.Jur. pp. 437-439.
We have carefully considered the record before us which, as we said at the outset, contains no evidence and on the record before us find that the decree of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., concurs.
LAWSON and MERRILL, JJ., concur in the result.
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274 F.2d 250
UNITED STATES of America ex rel. Emil RECK, Relator-Appellant,v.Joseph E. RAGEN, Warden, Respondent-Appellee.
No. 12687.
United States Court of Appeals Seventh Circuit.
Jan. 13, 1960.
A. Bradley Eben, Bernard Weissbourd, Donald Page Moore, Richard A. Siegal, Chicago, Ill., for appellant.
William C. Wines, Chicago, Ill., Grenville Beardsley, Atty. Gen. of Illinois, Edward M. White, Asst. Atty. Gen., of counsel, for appellee.
Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit judges.
SCHNACKENBERG, Circuit Judge.
1
This is an appeal from action1 of the district court quashing a writ of habeas corpus which it had issued on the petition of Emil Reck, also referred to as 'defendant', and remanding him to the custody of Joseph E. Ragen, appellee, warden of an Illinois state penitentiary.
2
In 1936 defendant was convicted of murder in the Criminal Court of Cook County, Illinois, and sentenced to a term of 199 years in said penitentiary, where he was accordingly imprisoned.
3
On the night of January 2, 1936, Dr. Silber C. Peacock, a Chicago physician, received a telephone call at his apartment. In answer to this call, he departed in his car with his instrument case. He did not return. The next evening his body was found on the floor of his parked automobile. He was dead from a bullet wound and 13 deep lacerations in his head. On Wednesday, March 25, 1936, the police arrested for bicycle theft, Reck, Durland Nash and Robert Goethe, all then 19 years of age, and Michael Livingston who was then 17 years of age. The following Saturday all four signed individual confessions of participation in the killing of Dr. Peacock. Nash and Goeth pleaded guilty and were sentenced to prison, while Reck and Livingston pleaded not guilty and were tried together, when their confessions were received in evidence over their objections. Both were sentenced to imprisonment. On writ of error, the Illinois Supreme Court, with the common law record before it, affirmed Reck's conviction, People v. Reck, 392 Ill. 311, 64 N.E.2d 526.
4
Proceeding under the Illinois Post-Conviction Hearing Act,2 Reck filed a petition in the Criminal Court of Cook County, which was denied, which action was affirmed by the Illinois Supreme Court on November 23, 1955, 7 Ill.2d 261, 130 N.E.2d 200. That court summarized, 7 Ill.2d at page 262, 130 N.E.2d at page 201, the substance of the confessions Signed by the four defendants, as follows:
5
'In the early evening of January 2, 1936, the four boys met and were riding in a Ford automobile driven by Jimmy Nash. They stopped at a Walgreen drug store somewhere on North Western Avenue. Robert Goeth and Nash got out of the car, went into the drug store, called Dr. Peacock and requested that he make a professional call on a sick child at 6438 North Whipple Street. The boys, while planning the robbery, had previously explored this neighborhood and found it to be dark and unfrequented. The two boys came back to the car and reported that their victim would be at the above address shortly, whereupon they drove there and parked their car nearby. Dr. Peacock arrived, parked his car in front of 6438, alighted from the car with his medicine case, and was approached by Robert Goeth who put a gun in his back and ordered him to re-enter his car, which he did. Livingston remained in the Ford and followed the doctor's car which was driven by Nash with Goeth sitting on his right and the petitioner (Reck) with the doctor in the rear seat. After they drove some distance they ordered the doctor out of his car and demanded his money. He said he didn't have any money and started fighting with Goeth. When Goeth got loose he fired two shots at the doctor, and while the doctor was lying on the ground breathing heavily, Reck finished killing him with a wooden club about one foot in length that he carried as a weapon. The boys searched the doctor's pockets and found $20, divided it equally, and left him lying on the floor of the rear seat of his car. Goeth also struck him several times with the butt of his gun while he was lying on the ground. After driving away the four separated and went their respective ways.'
6
At page 264 of 7 Ill.2d, at page 202 of 130 N.E.2d, the court pointed out:
7
'It should be observed that petitioner throughout these proceedings has been represented by able and alert counsel. On the original trial a full hearing on the validity of the confession was had out of the presence of the jury. The trial judge ruled that the confession met all legal requirements. A similar hearing was had before the jury. The verdict of guilty and judgment thereon represent another determination that the confessions here under scrutiny did not emanate from coercion. * *
8
'* * * The statements signed by the four boys are complete, detailed and consistent, which together with the circumstances surrounding their execution compel the conclusion that they represent the truth freely and voluntarily uttered.
9
'The record conclusively demonstrates that petitioner, Nash, Goeth and Livingston had been arrested originally because of their suspected involvement in many robberies and burglaries. The first three days of their confinement was entirely devoted to their being questioned about crimes independent of the Peacock murder. For only twenty-four hours before the confessions were obtained were the boys asked about the instant homicide. We are of the opinion that petitioner's constitutional rights were not infringed under the facts as disclosed by the record in this case. * * *'
10
At the hearing on the writ in the district court, the complete records of proceedings in the Illinois courts were introduced. In this court Reck contends that the district court erred in its construction of the fourteenth amendment as applied to this case.
11
The only expert testimony dealing directly with the mental status of Reck is that of Dr. Harry R. Hoffman, director of the behavior clinic of the Criminal Court of Cook County, who was called as a witness for the defense. He reported that Reck had no nervous or mental disorder, that he was of dull normal intelligence, and was not committable as insane or feeble-minded; that he was never a juvenile delinquent.
12
An extensive effort has been made in the briefs in this court by Reck's counsel to establish that he was a weak character with a retarded mentality, evidently with the purpose of establishing a premise for a conclusion that his confession was extorted from him. For instance, it is argued that, as he dropped out of school at the age of 16 years, when he was in the seventh grade, and as he did not take part in athletic games, but was content to be a scorekeeper, he was weakling. However, we note that, while he may have not been interested in books, he liked manual training. Although he did not participate in the spectacular features of athletic contests, he served an essential purpose when he kept the score.
13
We need not analyze in detail the further indications which counsel purport to find in the record pointing to an uninspiring mentality in Reck. Undoubtedly he was no mental genius and was more apt to be classified as 'inglorious', as Gray used the word in his benign reference to the many persons who make up a substantial and wholesome part of every population.
14
As to the evidence leading up to Reck's written confessions, the record shows that this group of four young men was in custody from Wednesday, March 25, 1936, to the following Friday night, during which time they were being questioned exclusively about thefts of bicycles, saxophone, and other articles, and were being viewed by numerous victims of such crimes. They were still in custody when the following events occurred:
15
The first reference to the Peacock murder was made to Reck on Friday at 8:45 p.m. It was then that Captain Andrew Aiken, who was assigned to investigate mysterious telephone calls made to doctors in Chicago, viewed Reck at the police station and noticed that he matched a description previously given by an elderly doctor who had been the victim of a holdup. Aiken then accused Reck of the Peacock murder and Reck became ill. A doctor who was called to look at Reck said that he had a 'nerve reaction'. The police then caused Reck to be sent to the county hospital for the night, where he was picked up Saturday morning, and taken to a police station for questioning about the Peacock case. About 2 p.m. he was taken before Wilbert F. Crowley, first assistant state's attorney, who testified at the trial as to what occurred on Saturday, as follows:
16
'Crowley told Reck that Goeth and Nash (who had that morning confessed the crime) had said he was with them on the Peacock case. Reck denied being there, but admitted that he knew about it because Goeth had told him about it. Reck related in detail to Crowley what Goeth had said. Nash and Goeth were then brought before Crowley and identified Reck. Nash recited the details of the crime in Reck's presence and implicated him, whereupon Reck said he did not do it. When asked, Goeth stated that Nash told the truth, admitting that he, Goeth, had hit the doctor with a gun and saying that Reck had hit him with a club. Whereupon Crowley asked, 'What about it, Reck'? and Goeth interrupted, saying, 'Go ahead, Emil, tell them the truth about it, you know you were there, and you know we are not lying about it.'
17
'Crowley said, 'What about it, Emil, were you there? Did you do those things?' Reck responded 'Well, I will tell you, I was there, I didn't hit him on the head.' He claimed Livingston hit the doctor.'
18
It will be noted that this statement by Reck was made less than twenty-four hours after he was first asked about the Peacock murder by Captain Aiken.
19
Mr. Crowley then directed that Livingston be brought to confront Reck in regard to the latter statement and Mr. Crowley left to keep another appointment. When Crowley came back, a written statement had been prepared, and, in his presence, the four defendants signed but, before signing, the defendants watched copies, as Mr. Crowley read the statement aloud. At Reck's suggestion, an answer reading 'my mother and two sisters', to a question 'who do you live with?', was changed to read 'my father and two sisters'.
20
On the same day individual statements were taken from each defendant, as each was called in separately. These individual statements were signed after the defendants bathed and changed clothes. The signatures were affixed in the presence of a group of civilians, including the former foremen of several grand juries, various doctors and business men. Each statement was read aloud before it was signed and a copy was given to the signer.
21
The joint statement and the four individual statements were admitted in evidence, over objection.
22
Invoking the aid of the fourteenth amendment to the constitution of the United States, Reck now contends that his confessions were the product of coercion, citing his lengthy detention incommunicado and the illness which developed during that period of time. We are convinced, however, that the evidence proves that none of the treatment which he received while he was being detained prior to Saturday afternoon produced the confessions by Reck. While he had become ill when Captain Aiken on Friday night probingly accused him of the Peacock killing, his rugged determination to say nothing to reveal his involvement in that affair had prevented the authorities from obtaining any incriminatory admission from him in regard to that crime until Saturday afternoon in the office of the state's attorney. Until then, Reck, the strong man of the group, had stood fast and on this occasion it was only the realization that Goethe and Nash had confessed the Peacock killing and had implicated him, and had, in the presence of Crowley called upon Reck to tell 'the truth about it, you know you were there, and you know we are not lying about it', that Reck realized that the 'dance was over and the time had come to pay the fiddler'. The latter words are quoted from Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522. In that case, 346 U.S. at page 186, 73 S.Ct. at page 1093, the court said:
23
'* * * Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous, like a confession to a priest, a lawyer, or a psychiatrist. But in this sense no criminal confession is voluntary.
24
'Cooper's and Stein's confessions obviously came when they were convinced that their dance was over and the time had come to pay the fiddler. Even then, Cooper was so far in control of himself and the situation as to dictate the quid pro quo for which he would confess. That confession came at a time when he must have known that the police already knew enough, from Jeppeson and Brassett, to make his implication inevitable. Stein held out until after Cooper had confessed and implicated him. Both confessions were 'voluntary,' in the only sense in which confessions to the police by one under arrest and suspicion ever are. The state courts could properly find an absence of psychological coercion.'
25
To the same effect, see Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, and Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86.
26
We hold that Reck's confessions were voluntary and that the result reached by the district court was correct. Accordingly, the order from which the present appeal was taken is affirmed.
27
Affirmed.
28
DUFFY, Circuit Judge (dissenting).
29
Because the record before us discloses that Emil Reck's confessions were the product of psychological, if not physical, coercion, he was deprived of due process under the Fourteenth Amendment.
30
The majority opinion makes light of the claim that Reck had a retarded memtality, and reaches the amazing conclusion 'Undoubtedly he was no mental genius and was more apt to be classified as 'inglorious' * * *.' The opinion quotes Dr. Harry R. Hoffman, yet this doctor testified Reck, who was nineteen years old at the time of his arrest, had the intelligence of a child between ten and eleven years old.
31
Reck never had been arrested previously and was not a juvenile delinquent. He never had been a behavior problem at home or at school, but from early childhood, because of his mental retardation, he was studied recurrently by social agencies, psychologists and psychiatrists. At the age of twelve and a half it was estimated his mental age was eight, and his IQ was sixty-four. When he was tested again at the time he was nearly fifteen years of age, his mental age was found to be eight years and four months, and his IQ fifty-seven. Furthermore, the District Court found as a fact that Reck was a mentally retarded boy. In my view, it is not a correct statement of the record to classify his condition as 'inglorious.'
32
I must also dissent from the statement in the majority opinion: 'We are convinced, however, that the evidence proves that none of the treatment which he received while he was being detained prior to Saturday afternoon produced the confessions by Reck.' At the time Reck signed the first confession, he had been in police custody about eighty hours. When he signed his second confession, he had been in police custody one hundred two hours and without solid food for at least forty-eight hours. The Supreme Court of Illinois described the situation by stating that Reck 'was in custody of the police for a week, during which time he was frequently ill, fainted several times, vomited blood on the floor of the police station and was twice taken to the hospital on a stretcher. During that week no formal charge was placed against petitioner and he was confined practically incommunicado.' Reck v. People, 7 Ill.2d 261, 264, 130 N.E.2d 200, 202. This is the boy referred to in the majority opinion as 'the strong man of the group.'
33
The record discloses Reck was violently ill in the North Avenue Police Station four times the night before he confessed. He fainted repeatedly. He vomited blood and was unable to walk. While hospitalized, Reck recounted the details of police coercion to two physicians, but the doctors returned him to the tender ministrations of the police. Reck was not brought before a magistrate until the ninth day after his arrest without a warrant.
34
It is true the police examined Reck for three days about dozens of unrelated crimes ranging from bicycle theft to robbery, but this so-called 'investigation' made a hospital case out of Reck. He had an entire physical collapse Friday night. Although his father twice attempted to visit him during the first several days of his confinement, he could not do so, for Reck was being held incommunicado.
35
Applicable here are the decisions in Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 1357, 93 L.Ed. 1801; Turner v. Com. of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, and Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. The facts, reasoning and results in those five Supreme Court cases should dictate the result here. I believe that Emil Reck is entitled to a new trial because his confessions coerced by psychological pressures overwhelmed his limited powers of resistance.
1
Although no formal order was entered by the clerk, a notation was made of the filing of the judge's decision entitled Memorandum, Findings of Fact, Conclusions of Law and Decree; United States ex rel. Reck v. Ragen, D.C., 172 F.Supp. 734
2
826 et seq., ch. 38, Ill.R.S.1951
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539 F.2d 637
COUNTRY FAIRWAYS, INC., Debtor-Appellant,v.Steven MOTTAZ, Trustee-Appellee,Michael Kane, Intervenor-Appellee.
No. 76-1132.
United States Court of Appeals,Seventh Circuit.
Argued April 22, 1976.Decided Aug. 9, 1976.
Donald E. Deuster, Mundelein, Ill., for debtor-appellant.
Steven N. Mottaz, Alton, Ill., James W. McRoberts, Jr., Fairview Heights, Ill., Donald L. Smith, Alton, Ill., for appellees.
Before CUMMINGS and BAUER, Circuit Judges, and JAMESON, Senior District Judge.*
PER CURIAM:
1
This is an appeal from an order of the district court dismissing an appeal by Country Fairways, Inc., the debtor, from orders of the bankruptcy court (1) dismissing the debtor's petition to revert to a Chapter XI proceeding and (2) confirming the sale of the assets of the debtor to Michael Kane, intervenor. We affirm.
2
On May 7, 1975, Country Fairways, Inc., an Illinois corporation which owned and operated a golf course, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 722 et seq.1 No plan of arrangement was filed with the petition. Pursuant to 11 U.S.C. §§ 734-735, the bankruptcy court on May 20, 1975 issued an order for a first meeting of creditors on June 3, 1975.2 On June 3, Steven N. Mottaz was appointed receiver and the hearing was adjourned to July 1.
3
On July 1, 1975, an order was entered adjudicating the debtor a bankrupt, thus converting the proceedings into a straight bankruptcy.3 On July 10, Mottaz, as trustee, filed a petition to sell the assets of the estate; and on July 14 the bankruptcy judge entered an order for a meeting of creditors and hearing on the petition on July 29.
4
On July 25 a proposed plan of arrangement was filed. No acceptances of the plan by the creditors were filed with the proposal, nor were any filed at the hearing on July 29. On that date an order was entered approving Mottaz as trustee. On August 13 an order was entered authorizing the trustee to sell all of the debtor's assets, the order reciting that the matter came on for hearing on the complaint of the trustee and an answer filed by the mortgagee, and that a decree of foreclosure had been entered on May 7, 1975 for the sum of $54,316.76 due on the mortgage.4
5
On September 17 the debtor filed a petition to revert to a Chapter XI proceeding. On September 22 the trustee filed a petition to confirm the sale of the assets to Kane. On the same date the court entered an order for a meeting of creditors and hearing on the two petitions on September 30. The debtor did not appear at the September 30 hearing, but submitted a letter stating that it would not participate in the hearing, expressing lack of confidence in the bankruptcy judge, and stating that an emergency application for a writ of mandamus had been filed in this court.5
6
On October 7, 1975, the bankruptcy court entered two orders one denying the petition to revert to a Chapter XI proceeding, and the other confirming the sale of debtor's assets to Michael Kane for $100,000. On October 16 the debtor filed a notice of appeal to the district court from the two orders entered October 7 and also the order of sale entered August 13, 1975.
7
On October 28 the debtor was ordered by the district court to file a supersedeas bond in the amount of $110,000 on or before November 7, 1975.6 On November 7 the debtor filed in the district court three motions (1) to extend the time of filing the bond; (2) for leave to file an amended plan of arrangement; and (3) to revert to a Chapter XI proceeding.
8
On November 10 the trustee agreed by letter to debtor's counsel to refrain from completing the sale until November 12, and if he received the sum of $80,000 by that date he would call a meeting of creditors. If he did not receive the money he would proceed to transfer the property. Checks totaling $70,0007 were delivered to the trustee on November 12, and he called a meeting of the debtor, its creditors, and the purchaser for November 18. Kane demanded completion of the sale. Negotiations continued between the trustee, debtor, and Clay East, who was to provide interim financing.
9
On November 24, the record on appeal was filed in the district court, pursuant to Rule 807. The following day the bankruptcy judge received a letter from the attorney for East regarding requirements for proposed financing, and stating in part: "The corporation must file a plan embodying the above with the Bankruptcy Court; it must be approved; the interest, if any, of the successful bidder in the real estate and improvements must be terminated and the bankruptcy proceeding concluded".
10
On December 30, 1975, the trustee filed a motion to dismiss the appeal for failure to timely file the transcript of evidence or its brief or otherwise diligently pursue the appeal.8 On January 19, 1976, the district court entered an order dismissing the appeal and authorizing the trustee to complete the sale. The order recites, inter alia, (1) that on October 28, 1975, the debtor was ordered to file an appeal bond in the amount of $110,000 and that the bond was not filed and the orders of October 7, 1975, had not been stayed pending the appeal; (2) that a transcript of the evidence included in the debtor's designation of contents of record was to be furnished by the debtor and it had not done so; and (3) that by general order entered August 28, 1975, appellants were given 30 days from the time of filing an appeal to submit a brief, that the debtor's time to file a brief expired December 24, 1975, and the debtor had failed to file a brief or request extension of time to file its brief.9
11
On this appeal, the debtor does not question the findings of the district court. Rather it is argued that it would be a "gross injustice" to deprive the debtor of the "procedural opportunities specifically set forth in Chapter XI", and that the bankruptcy judge and trustee "misled the Debtor into reasonably concluding that no appeal was necessary".
12
It is undisputed that there was a sale of the debtor's assets to a good faith purchaser and that this sale was confirmed by the bankruptcy court on October 7, 1975. While an appeal was taken from the order confirming the sale, appellant failed to request a stay order or file the supersedeas bond required as a condition for a stay. In addition appellant failed to file a transcript of the proceedings in the bankruptcy court or to file a brief in support of its position within the time required by a general order of the district court. As a result on December 30, 1975, the trustee filed the motion to dismiss the appeal. Appellant failed to file any response to that motion setting forth the defenses now claimed. At a hearing on January 19, 1976, the trustee called the attention of the district court to all of these facts and informed the court that the purchaser was insisting upon a completion of the confirmed sale.10 Recognizing the rights of the purchaser-intervenor, and the failure of appellant to comply with the court's order, the court ordered the appeal dismissed.
13
Rule 805 of the Rules of Bankruptcy and Rule 62(d) of the Federal Rules of Civil Procedure, from which the Bankruptcy Rule is derived, permit a district court to stay enforcement of a bankruptcy court order pending appeal. Under those rules the district court may, however, condition of the granting of the stay upon the filing of a supersedeas bond. In that event, the filing of the petition for review does not effect a stay unless the bond is filed.
14
The question here presented was considered recently by the Fourth Circuit (In Matter of Abingdon Realty Corp., 530 F.2d 588 (1976)), where no stay was sought of a bankruptcy court order approving sale of the assets of the bankrupt to a good faith purchaser. In holding that the appeal from the bankruptcy court order was moot and affirming an order of dismissal, the court said at 530 F.2d 589-590:
15
"It is settled law that the filing of a petition to review an order of a bankruptcy judge (formerly a referee in bankruptcy), does not stay the effect or operation of the order unless a supersedeas bond is filed or the order itself provides for a stay. (Citing cases and 2A Collier on Bankruptcy, 14th ed., 1974, P 39.26, p. 1526). A proposed amendment to Bankruptcy Rule 805, which has been approved by the Judicial Conference of the United States, would add the following sentence at the end of that rule: 'Unless an order approving a sale of property or issuance of a certificate of indebtedness is stayed pending appeal, the sale to a good faith purchaser or the issuance of a certificate to a good faith holder shall not be affected by the reversal or modification of such order on appeal, whether or not the purchaser or holder knows of the pendency of the appeal.' The Advisory Committee's Note states that the sentence proposed to be added 'is declaratory of existing case law.' We agree. (Citing cases, including Fink v. Continental Foundry & Machine Co., 240 F.2d 369 (7 Cir. 1957), cert. denied, 354 U.S. 938, 77 S.Ct. 1401, 1 L.Ed.2d 1538, and 11 Wright & Miller, Federal Practice and Procedure: Civil § 2904, n. 31.)"
16
Here too there was a confirmed sale to a good faith purchaser. The appeal from the bankruptcy court order became moot in the absence of a stay order or the filing of the required supersedeas bond.
17
In support of the contention that it was misled by the bankruptcy judge and trustee, appellant relies largely upon the negotiations between the trustee and debtor subsequent to the order confirming the sale. As noted supra, the debtor refused to participate in the hearing held on September 30, 1975, which resulted in the order of October 7 confirming the sale and denying debtor's petition to revert to a Chapter XI proceeding.11
18
It is true that even after the entry of the order confirming the sale and pending perfection of the appeal from that order, the bankruptcy judge and trustee manifested a willingness to give appellant a further opportunity to present an arrangement plan acceptable to its creditors which would result in payment in full of its indebtedness. We find nothing in the record, however, to justify the contention that the bankruptcy judge and trustee "misled the debtor into reasonably concluding that no appeal was necessary". There might be some basis for this contention if the sole action had been the denial of the petition to revert to a Chapter XI proceeding; but the order confirming the sale vested rights in a bona fide purchaser which could not be ignored by the trustee, the district court, or this court. When appellant failed to file the bond and brief, the trustee properly sought dismissal of the appeal. In turn the district court properly dismissed the appeal pursuant to Bankruptcy Rule 801.
19
Nor do we find merit in appellant's contention, first raised on this appeal, that the proceedings were fatally defective because the bankruptcy court failed to fix a time for filing the proposed plan of arrangement pursuant to 11 U.S.C. § 735.
20
In the first place, it is clear, as this court has held in numerous cases, see e. g., Desert Palace Inc. v. Salisbury, 401 F.2d 320, 324 (7 Cir. 1968) and Federal Savings and Loan Insurance Corp. v. Quinn, 419 F.2d 1014, 1019 (7 Cir. 1969), that an issue not presented in the court below cannot be raised for the first time on appeal and form a basis for reversal.
21
In the second place, appellant may not under the peculiar facts of this case now rely upon the alleged failure to comply with the provisions of § 735. It is true that this section provides that at the meeting of creditors, the court shall fix a time within which the proposed arrangement shall be filed. Here, however, the meeting of the creditors was adjourned from June 3 to July 1, when the appellant was adjudicated a bankrupt. As noted supra, the notice to creditors expressly provided that the court would determine at the meeting whether an order should be entered dismissing the case or adjudicating the debtor a bankrupt. In the absence of a transcript, there is of course no record of what transpired at the June 3 and July 1 meetings of creditors or the other hearings. Moreover, a proposed plan was in fact filed prior to the entry of the order of sale; but appellant refused to participate in the combined hearing on its petition to revert to a Chapter XI proceeding and the trustee's petition to sell the assets of the estate, at which the plan would have been considered. Any failure of the bankruptcy court to follow strictly the applicable statutes and bankruptcy rules would appear attributable to the confusion and delay caused by the bankrupt.
22
Affirmed.
*
Senior Judge William J. Jameson of the District of Montana is sitting by designation
1
Proceedings had been instituted in state court for the foreclosure of a mortgage covering all of the debtor's assets, and a decree of foreclosure was entered May 7, 1975
2
The notice provided, inter alia, that the officers of the debtor should appear for the purpose of being examined; that a hearing on confirmation of the plan would be held at a date to be fixed later; and that at the meeting on June 3 or any adjournment thereof a hearing would be held "to determine whether an order should be entered dismissing the case or adjudicating the debtor a bankrupt."
3
Appellant failed to file a transcript of the proceedings at the various hearings and meetings of creditors, so that the record before this court contains only the formal orders. It has been necessary accordingly to rely upon statements contained in appellee's brief, which are not questioned by appellant, with respect to what transpired at the hearings. It appears from appellee's brief that the hearing on July 3 included a complaint by the mortgagee seeking relief from an automatic stay order
4
While not included in the record on appeal, it appears from appellee's brief that on August 28 the debtor filed notice of appeal from the August 13 order and on August 29 the bankruptcy judge by letter refused to take the appeal because it was not perfected within 10 days as required by Rule 802 of Bankruptcy Procedure. On September 9 the debtor filed a request for leave to file a notice of appeal out of time, which was set for hearing on September 16 and continued to September 30
5
It appears from appellee's brief that this application was filed on September 25 and denied on October 2
6
Also on October 28 the appeal from the order of sale entered August 13, 1975 was dismissed, pursuant to stipulation of counsel
7
One of the checks was a cashier's check for $65,000 payable to Clay East endorsed "Will endorse upon completion of proper loan papers"
8
No response was filed to the motion, but the debtor was represented by counsel at the hearing on the motion on January 19, continued from January 12 at the request of debtor's counsel
9
It appears from a supplemental record on appeal that an order was entered by the district court on February 6, 1976, enjoining the debtor from interfering with the transfer of the property to Michael Kane. Notice of appeal from that order was filed on February 13. The property was transferred to Kane on February 16, 1976
10
The trustee informed the court that the purchaser had paid $10,000 and the remaining $90,000 would be paid upon completion of the sale
11
In the absence of a transcript, there is no record before this court of what transpired at that hearing except the letter from debtor declining to participate
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[Cite as Sano v. Sano, 2011-Ohio-2110.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PATRICIA SANO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2010 CA 00252
JOSEPH SANO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2009 DR 00821
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 2, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LORRIE E. FUCHS ALLYSON BLAKE
Post Office Box 35787 122 Central Plaza North, Suite 101
Canton, Ohio 44735 Canton, Ohio 44702
Stark County, Case No. 2010 CA 00252 2
Wise, J.
{¶1} Appellant Joseph Sano appeals from the decision of the Stark County
Court of Common Pleas, Domestic Relations Division, granting a divorce between
Appellee Patricia Sano and appellant. The relevant facts leading to this appeal are as
follows.
{¶2} Appellant and appellee were married in June 1994. No children were born
of the marriage. On July 9, 2009, appellee filed a complaint for divorce. Appellant filed
an answer on August 18, 2009. Pursuant to the trial court’s temporary orders of July
28, 2009, all earnings of the parties were to be deposited into a joint account, from
which household and living expenses would be paid.
{¶3} The matter proceeded to a trial on March 31, 2010 and April 1, 2010.
{¶4} The magistrate issued a decision on May 27, 2010. Among other things,
the magistrate recommended that appellee be awarded the marital residence, which
actually had a net negative equity of $262.00. Appellant’s pension was to be divided
50/50, as were the Fidelity and US Bank accounts. The magistrate also found that
appellant had committed financial misconduct of $7,472.00 by improperly removing
certain funds from the joint account and for not depositing certain funds into said
account. As a result of the financial misconduct the magistrate ordered appellant to pay
a property equalization of $4,962.00 within 60 days. The magistrate also recommended
that appellant pay $1,000.00 per month in spousal support for twelve months, with a
final award of $1,800.00 per month for sixty-four months, terminable upon death or
remarriage. The trial court did not retain jurisdiction over spousal support.
Stark County, Case No. 2010 CA 00252 3
{¶5} Appellant filed objections to the decision of the magistrate on June 7,
2010. The trial court conducted a hearing, and then issued a judgment entry on August
9, 2010 overruling the appellant’s objections. A final decree of divorce was issued on
September 2, 2010.
{¶6} On September 9, 2010, appellant filed a notice of appeal. He herein raises
the following four Assignments of Error:
{¶7} “I. APPELLANT WAS DENIED HIS DUE PROCESS WHEN THE COURT
FOUND HIM IN CONTEMPT WHEN HE HAD NEVER BEEN SERVED WITH THE
MOTION FOR CONTEMPT.
{¶8} “II. THE TRIAL COURT HAD NO IN PERSONAM JURISDICTION AND
ERRED BY GRANTING THE APPELLEE’S MOTION FOR CONTEMPT SINCE
APPELLANT WAS NOT PROPERLY SERVED WITH SAID MOTION.
{¶9} “III. IT WAS ERROR, AN ABUSE OF DISCRETION, AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE FOR THE TRIAL COURT TO FIND
APPELLANT COMMITTED FINANCIAL MISCONDUCT.
{¶10} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN SETTING THE
AMOUNT AND DURATION OF SPOUSAL SUPPORT AND NOT RETAINING
JURISDICTION.”
I., II.
{¶11} In his First and Second Assignments of Error, appellant contends the
decision to proceed on appellee’s motion to show cause regarding temporary orders
was erroneous and a violation of due process of law. We disagree.
Stark County, Case No. 2010 CA 00252 4
{¶12} Contempt has been defined as the disregard for judicial authority. State v.
Flinn (1982), 7 Ohio App.3d 294, 455 N.E.2d 691. “It is conduct which brings the
administration of justice into disrespect, or which tends to embarrass, impede or
obstruct a court in the performance of its functions.” Windham Bank v. Tomaszczyk
(1971), 27 Ohio St.2d 55, 271 N.E.2d 815, paragraph one of the syllabus. When
reviewing a finding of contempt, an appellate court applies an abuse of discretion
standard. See State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 417 N.E.2d
1249.
{¶13} Contempt may be either direct or indirect. In re Purola (1991), 73 Ohio
App.3d 306, 310, 596 N.E.2d 1140. In addition, “[c]ontempt is further classified as civil
or criminal depending on the character and purpose of the contempt sanctions.” Purola
at 311, 596 N.E.2d 1140. “Civil contempt is designed to benefit the complainant and is
remedial in nature. * * * Thus, an individual charged with civil contempt must be
permitted to appear before the court and purge himself of the contempt by
demonstrating compliance with the court's order.” State v. Miller, Holmes App. No. 02
CA 16, 2003-Ohio-948, ¶ 28, citing Purola, supra. Typically, failure to pay court-ordered
spousal support is classified as a civil contempt. See Fisher v. Fisher, Fairfield App.
No. 2008 CA 00049, 2009-Ohio-4739, ¶ 48. Due process must be observed in both
civil and criminal contempt proceedings. See, e.g., In re Oliver (1948), 333 U.S. 257,
274-275.
{¶14} We first find the contempt in the case sub judice is remedial and allows
the contemnor an opportunity to purge his jail sentence. We further find this contempt
to be indirect and civil in nature. The issue before us is whether service of the civil
Stark County, Case No. 2010 CA 00252 5
contempt motion was sufficient when made on appellant’s attorney, rather than on
appellant personally.
{¶15} The record shows appellee filed her motion for contempt on February 16,
2010. Said motion contains a “Proof of Service” that states it was sent by regular mail
to counsel for appellant. The docket does not indicate that service of the motion was
ever sent to appellant himself. We note Civ.R. 5(B) states in pertinent part: “Whenever
under these rules service is required or permitted to be made upon a party who is
represented by an attorney of record in the proceedings, the service shall be made
upon the attorney unless service upon the party is ordered by the court. ***.” Appellant
nonetheless argues that our decision in Ewing v. Ewing, Stark App.No. 06-CA-148,
2007-Ohio-7108, stands for the proposition that appellee, as the show cause movant,
was required to personally serve appellant with the contempt motion. Our present
reading of Ewing and the precedential case cited therein, Bierce v. Howell, Delaware
App.No. 06 CAF 05 0032, 2007-Ohio-3050, suggests that the question of serving a
contempt motion in the midst of a pending divorce is not as settled as appellant
maintains.
{¶16} Nonetheless, the record before us reveals that appellant did not raise the
issues of service or in personam jurisdiction regarding appellee’s show cause motion
either to the magistrate or via his objections to the decision of the magistrate. Civ.R.
53(D)(3)(b)(iv) provides that “[a] party shall not assign as error on appeal the court's
adoption of any factual findings or legal conclusion * * * unless the party has objected
to that finding or conclusion * * *.” See, e.g., Kademenos v. Mercedes-Benz of North
America, Inc. (March 3, 1999), Stark App.No. 98CA50. Civ.R. 53 requires the
Stark County, Case No. 2010 CA 00252 6
objections be specific. North v. Murphy (March 9, 2001), Tuscarawas App.No.
2000AP050044. Accordingly, we find appellant’s present challenges to the contempt
finding to be waived. We are further disinclined to invoke the doctrine of plain error
under these circumstances. Cf. Diment v. Diment, Guernsey App.No. 05 CA 37, 2006-
Ohio-5295, ¶ 12 (declining to apply plain error where contemnor had not raised Civ.R.
53 objections to the magistrate’s property division contempt findings).
{¶17} Appellant’s First and Second Assignments of Error are therefore
overruled.
III.
{¶18} In his Third Assignment of Error, appellant challenges (1) the trial court’s
conclusion that he had committed financial misconduct and (2) the court’s decision to
order appellant to make a lump sum payment of $4,962.00 to appellee as a result1.
{¶19} An appellate court generally reviews the overall appropriateness of the
trial court's property division in divorce proceedings under an abuse of discretion
standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Furthermore, as
an appellate court, we are not the trier of fact. Our role is to determine whether there is
relevant, competent, and credible evidence upon which the factfinder could base his or
1
Because appellant’s brief quotes from Ebner v. Ebner, Stark App.Nos. 2007CA00318,
2007CA00346, 2008-Ohio-5335, our initial understanding was that appellant had also
alleged the trial court had improperly considered financial misconduct in its calculation
of spousal support. However, the divorce decree at issue does not specifically reveal a
reliance on financial misconduct in the court’s redress of spousal support. Therefore,
we herein do not need to reach the Ebner decision in our analysis.
Stark County, Case No. 2010 CA 00252 7
her judgment. Tennant v. Martin-Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010-
Ohio-3489, ¶ 16, citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-
5758, 1982 WL 2911. It is well-established that the trier of fact is in a far better position
to observe the witnesses' demeanor and weigh their credibility. See, e.g., Taralla v.
Taralla, Tuscarawas App.No. 2005 AP 02 0018, 2005-Ohio-6767, ¶ 31, citing State v.
DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.
{¶20} Pursuant to R.C. 3105.171(B), “[i]n divorce proceedings, the court shall ...
determine what constitutes marital property and what constitutes separate property. In
either case, upon making such a determination, the court shall divide the marital and
separate property equitably between the spouses, in accordance with this section.”
R.C. 3105.171(E)(4) states that "[i]f a spouse has engaged in financial misconduct,
including, but not limited to, the dissipation, destruction, concealment, or fraudulent
disposition of assets, the court may compensate the offended spouse with a
distributive award or with a greater award of marital property." In Orwick v. Orwick,
Jefferson App.No. 04 JE 14, 2005-Ohio-5055, the court recognized "there are many
forms of financial misconduct, and whether or not a party committed such misconduct
is largely dependent on the specific facts of the case." Id. at ¶ 30.
{¶21} R.C. 3105.171(C)(1) further states: “Except as provided in this division or
division (E)(1) of this section, the division of marital property shall be equal. If an equal
division of marital property would be inequitable, the court shall not divide the marital
property equally but instead shall divide it between the spouses in the manner the court
determines equitable. In making a division of marital property, the court shall consider
all relevant factors, including those set forth in division (F) of this section.”
Stark County, Case No. 2010 CA 00252 8
{¶22} In the case sub judice, the magistrate concluded in pertinent part as
follows:
{¶23} “Defendant is found to have engaged in financial misconduct as follows: 1)
for the amount of $597.00 and $466.00 which represent funds wrongfully taken by
Defendant while under the temporary order; 2) for the amount of $1,600.00 which
represents two checks from YRC earned by Defendant but not deposited into the joint
account; 3) for the amount of $1,800.00 which represents sums wrongfully taken from
the parties’ savings account after Defendant was served with divorce papers; 4) for
the amount of $3,009.00 which represents Defendant’s vacation pay. Said sums total
$7,472.00.” Magistrate’s Decision at 13.
{¶24} The temporary order issued in this case stated that the parties were
required to deposit their monies into a joint account and that the monies could only be
used for household and living expenses. Regarding the $7,472.00 the trial court found
attributable to appellant’s financial misconduct, appellant presently contends either that
there was no evidence that he used the funds for something other than household and
living expenses or that there was in general no showing of financial misconduct.
However, the record provides evidence that the parties had agreed to set an $80.00
per week limit on spending/withdrawals, which the magistrate was free to believe or
disbelieve. Furthermore, appellant himself admitted to withdrawing $800.00
immediately after the temporary orders hearing and subsequently transferring
$1,000.00 from the home equity line of credit to his personal account. Appellant also
admitted to failing to deposit more than $3,000.00 in vacation pay because he wanted
to repay a loan from his father.
Stark County, Case No. 2010 CA 00252 9
{¶25} Viewing the award in its entirety, we do not find the trial court abused its
discretion in dividing the parties' marital property and in awarding appellee a lump sum
monetary distribution. See Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d
206 (emphasizing that a trial judge should be given wide latitude in dividing property
between the parties).
{¶26} Appellant’s Third Assignment of Error is overruled.
IV.
{¶27} In his Fourth Assignment of Error, appellant contends the trial court
abused its discretion in setting spousal support and in declining to retain jurisdiction
thereon. We disagree.
{¶28} A trial court's decision concerning spousal support may only be altered if it
constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,
554 N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment;
it implies that the court's attitude is unreasonable, arbitrary or unconscionable.
Blakemore, supra.
{¶29} R.C. 3105.18(C)(1)(a) thru (n) provides the factors that a trial court is to
review in determining whether spousal support is appropriate and reasonable and in
determining the nature, amount, terms of payment, and duration of spousal support:
{¶30} “(C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of payment, and
duration of spousal support, which is payable either in gross or in installments, the
court shall consider all of the following factors:
Stark County, Case No. 2010 CA 00252 10
{¶31} “(a) The income of the parties, from all sources, including, but not limited
to, income derived from property divided, disbursed, or distributed under section
3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The
ages and the physical, mental, and emotional conditions of the parties; (d) The
retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to
which it would be inappropriate for a party, because that party will be custodian of a
minor child of the marriage, to seek employment outside the home; (g) The standard of
living of the parties established during the marriage; (h) The relative extent of
education of the parties; (i) The relative assets and liabilities of the parties, including
but not limited to any court-ordered payments by the parties; (j) The contribution of
each party to the education, training, or earning ability of the other party, including, but
not limited to, any party's contribution to the acquisition of a professional degree of the
other party; (k) The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so that the spouse will
be qualified to obtain appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought; (l) The tax consequences, for each
party, of an award of spousal support; (m) The lost income production capacity of
either party that resulted from that party's marital responsibilities; (n) Any other factor
that the court expressly finds to be relevant and equitable.”
{¶32} Unlike the statute concerning property division, R.C. 3105.18 does not
require the lower court to make specific findings of fact regarding spousal support
awards. While R.C. 3105.18(C)(1) does set forth fourteen factors the trial court must
consider, if the court does not specifically address each factor in its order, a reviewing
Stark County, Case No. 2010 CA 00252 11
court will presume each factor was considered, absent evidence to the contrary. Carroll
v. Carroll, Delaware App.No. 2004-CAF-05035, 2004-Ohio-6710, ¶ 28, citing Watkins
v. Watkins, Muskingum App. No. CT 2001-0066, 2002-Ohio-4237, (additional citations
omitted).
{¶33} R.C. 3105.18(E) mandates that a trial court must specifically reserve
jurisdiction in its divorce decree or a separation agreement incorporated into the
decree in order to modify a spousal support award. The decision of whether to retain
such jurisdiction is a matter within the domestic relations court's discretion. Smith v.
Smith (Dec. 31, 1998), Lucas App. No. L-98-1027, citing Johnson v. Johnson (1993),
88 Ohio App.3d 329, 331, 623 N.E.2d 1294.
{¶34} In the case sub judice, the trial court awarded the appellee $1,000.00 per
month spousal support “in the nature of a temporary award,” with the final award of
$1,800.00 per month to commence one year later, with said amount to continue for 64
months, terminable upon death or remarriage. The trial court did not retain jurisdiction
over the issue of spousal support.
{¶35} According to the record, appellant was fifty-three years of age at the time
of the divorce, and is a high school graduate. He has had to obtain ongoing medical
treatment for two chronic ulcers of the left leg, but he is nonetheless able to work in his
occupational field of truck driving. The trial court concluded that appellant’s earnings as
a driver with YRC Corporation (a merger of Roadway Express and Yellow Freight)
were as follows: 2006 = $78,482.61; 2007 = $85,239.53; 2008 = $86,484.57. However,
in March 2009 appellant was laid off or offered fewer loads by YRC. As of July 18,
2009, appellant had earned the sum of $25,927.47 from YRC for the 2009 tax year. He
Stark County, Case No. 2010 CA 00252 12
subsequently began earning $29,000.00 per year with Falcon Trucking. Appellant was
living with his father at the time of trial at a boarding cost of $350.00 per month.
{¶36} Appellee’s earnings were found as follows: 2007 = $23,169.00; 2008 =
$20,394.00; 2009 = $24,686.00. Appellee continues to work as a bookkeeper. She
testified that she had obtained health insurance through her employer at a cost of
$380.00 per month. Tr. at 87. She testified that she needs $2,500.00 to cover her
expenses. Tr. at 118. She stated that after taxes her monthly income is approximately
$1,600.00. Id.
{¶37} The crux of appellant’s argument is that the trial court utilized an
unreasonable calculation of the parties’ incomes. He notes the court used appellant’s
income from 2006, 2007 and 2008, but used appellee’s income from 2007, 2008 and
2009. Appellant urges that if we accept he made just approximately $37,000 in 2009,
his average salary for the preceding three years drops to $69,574.70, versus the
$83,000.00 the trial court utilized. Appellant maintains that he was projected to make
only $29,000.00 in 2010. He urges that because the trial court did not retain jurisdiction
over the spousal support issue, he has no recourse should his income not rise
dramatically in the present economy. Appellant also points out that the parties had
developed a standard of living prior to this action that was apparently well beyond their
means, resulting in bankruptcy and discharge of approximately $60,000.00 in credit
card debt. See Tr. at 136.
{¶38} However, the trial court reviewed the statutory factors and concluded, inter
alia, that a $29,000.00 wage projection for appellant was not substantiated. The trial
court found that although appellant’s recent work changes were not proven to be a
Stark County, Case No. 2010 CA 00252 13
result of him intentionally separating himself from YRC, he had nonetheless turned
down or neglected several cognizable offers of employment at wages somewhat
similar to what he was used to at YRC. The trial court also stated it was balancing
appellant’s need to find better employment with appellee’s need for income and health
insurance. We herein indulge in the presumption the court considered all the statutory
factors (Carroll, supra), and we are unpersuaded upon review of the record that the
court abused its discretion in its award of spousal support.
{¶39} Appellant's Fourth Assignment of Error is therefore overruled.
{¶40} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Domestic Relations Division, Stark County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
___________________________________
___________________________________
___________________________________
JUDGES
JWW/d 0316
Stark County, Case No. 2010 CA 00252 14
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PATRICIA SANO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOSEPH SANO :
:
Defendant-Appellant : Case No. 2010 CA 00252
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Stark County,
Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
___________________________________
___________________________________
JUDGES
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3586
___________
Hubbard Feeds, Inc., *
a Minnesota corporation, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Animal Feed Supplement, Inc., * District of Minnesota.
d/b/a New Generation Feeds, Inc.; *
Denis J. Daly; Jeff Westberg; Larry *
Russell Smith; Keith Hollingsworth, *
*
Appellees. *
___________
Submitted: May 11, 1999
Filed: July 7, 1999
___________
Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
___________
BOWMAN, Circuit Judge.
Hubbard Feeds, Inc. (Hubbard) commenced this lawsuit against Animal Feed
Supplement, Inc. (AFS) in Minnesota state court, alleging that AFS had engaged in
trademark and trade dress infringement, unfair competition, deceptive trade practices,
and various other Lanham Act and state law violations. To remedy the alleged
trademark and trade dress infringement, Hubbard requested a preliminary injunction
prohibiting AFS from using Hubbard's registered half-barrel container. AFS removed
the case to federal court, where the District Court1 denied Hubbard's motion for a
preliminary injunction. Hubbard appeals. We have jurisdiction over this interlocutory
appeal pursuant to 28 U.S.C. § 1292(a)(1).
Hubbard produces an animal block-feed product that sells throughout the United
States and Canada under the name "Crystalyx." Hubbard packages Crystalyx in a half-
barrel container configuration in which it owns an incontestable trademark.2 AFS
produces a competing block-feed product called "Smartlic," which also is packaged in
a half-barrel container and is sold primarily in a seven-state region of the midwestern
and southwestern United States. AFS has packaged its product in the half-barrel
container since 1977 and recently made a substantial investment in equipment for
producing the half-barrel.
Hubbard became aware of AFS's allegedly infringing use of the half-barrel
container in 1988, but did not object until October 14, 1997, when Hubbard sent a
cease and desist letter to AFS. AFS failed to heed Hubbard's request, and Hubbard
brought this action on October 31, 1997. Hubbard alleged, inter alia, that AFS's
continued use of the half-barrel amounts to trademark and trade dress infringement, and
1
The Honorable Michael J. Davis, United States District Court Judge for the
District of Minnesota.
2
That a registered trademark has achieved incontestable status is conclusive
evidence of the mark's registration and validity, and of the registrant's ownership and
exclusive right to use the mark, subject to certain enumerated defenses not implicated
in this case. See 15 U.S.C. § 1115(b) (1994); Dakota Indus. v. Ever Best Ltd., 28 F.3d
910, 912-13 (8th Cir. 1994). Though critical minds might question the extension of
trademark protection to an apparently unremarkable steel half-barrel, Hubbard explains
that its mark was registered in recognition of the half-barrel's "secondary meaning," that
is, its association with Hubbard's product. See, e.g., First Bank v. First Bank Sys., Inc.,
84 F.3d 1040, 1045 (8th Cir. 1996) (defining secondary meaning as the association in
consumers' minds of a mark with a particular source).
-2-
requested a preliminary injunction prohibiting AFS's use of the container. The District
Court denied the preliminary injunction based on its determination that the equitable
defense of laches applies, making it unlikely, in the District Court's view, that Hubbard
could succeed on the merits of the case. It is from this interlocutory ruling that
Hubbard appeals.
We review the denial of a motion requesting a preliminary injunction under the
abuse-of-discretion standard. See Kirkeby v. Furness, 52 F.3d 772, 774 (8th Cir. 1995).
An abuse of discretion has occurred when an injunction has been denied "on the basis
of any clearly erroneous findings of fact or any clear error on an issue of law that may
have affected the ultimate balancing of the factors considered for a preliminary
injunction." National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1101 (8th
Cir. 1998) (internal quotation and alteration omitted). The factors considered for a
preliminary injunction are: (1) the probability that the moving party will succeed on the
merits; (2) the threat of irreparable harm to the moving party; (3) the balance of
hardships; and (4) the public interest. See United Indus. Corp. v. Clorox Co., 140 F.3d
1175, 1178-79 (8th Cir. 1998); DataPhase Sys. v. C L Sys., Inc., 640 F.2d 109, 114 (8th
Cir. 1981) (en banc). When applying the DataPhase factors, as they have come to be
called, "'a court should flexibly weigh the case's particular circumstances to determine
whether the balance of equities so favors the movant that justice requires the court to
intervene.'" Clorox, 140 F.3d at 1179 (quoting DataPhase, 640 F.2d at 113).
To succeed on the merits of its trademark and trade dress3 infringement claims,
Hubbard will have to demonstrate at trial that the half-barrel container is entitled to
protection and that AFS's use of the container is likely to confuse consumers as to the
3
Trade dress is defined as "the 'total image of a product, the overall impression
created, not the individual features.'" Children's Factory, Inc. v. Benee's Toys, Inc., 160
F.3d 489, 493-94 (8th Cir. 1998) (quoting Insty*Bit, Inc. v. Poly-Tech Indus., 95 F.3d
663, 667 (8th Cir. 1996), cert. denied, 519 U.S. 1151 (1997)).
-3-
source of AFS's product.4 See 15 U.S.C. § 1114(1)(a) (1994); see also Insty*Bit, Inc.
v. Poly-Tech Indus., 95 F.3d 663, 667 (8th Cir. 1996), cert. denied, 519 U.S. 1151
(1997); Dakota Indus. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991). Hubbard
asserts the incontestability of its trademark as conclusive proof that the mark is valid
and that the container thus is entitled to protection. The District Court determined,
however, that Hubbard's laches in asserting its trademark against AFS stands in the way
of a preliminary injunction.
The equitable defense of laches is applicable to an action to enforce an
incontestable trademark and, therefore, should be considered in evaluating the
likelihood of success on the merits of a trademark infringement claim. See United
States Jaycees v. Cedar Rapids Jaycees, 794 F.2d 379, 382-83 (8th Cir. 1986);
Pyrodyne Corp. v. Pyrotronics Corp., 847 F.2d 1398, 1402-03 (9th Cir.) (relying on
Jaycees), cert. denied, 488 U.S. 968 (1988). Laches applies when a claimant
inexcusably delays in asserting its claim and thereby unduly prejudices the party against
whom the claim ultimately is asserted. See, e.g., Elvis Presley Enters. v. Capece, 141
F.3d 188, 205 (5th Cir. 1998).
Hubbard was aware of any infringing conduct by AFS in 1988 and failed to
object to AFS's use of the half-barrel container until October 1997, thus delaying nine
years in asserting its rights. Hubbard does not posit any plausible excuse for its delay.5
4
Although Hubbard's complaint to the District Court charged nine counts of
various kinds of tortious conduct, Hubbard argued, and continues to argue, the merits
of only its trademark and trade dress infringement claims in support of a preliminary
injunction. We therefore consider Hubbard's likelihood of success on the merits of only
the trademark and trade dress claims.
5
Hubbard asserts that AFS was a licensee with permission to use the half-barrel
container until at least May 31, 1993, and that the period of non-infringing use should
not contribute to the calculation of Hubbard's delay. Even if Hubbard is correct in its
assertion that the relevant time period should begin to run from May 1993, a delay of
-4-
Relying on its apparent authorization to use the half-barrel, AFS made a substantial
investment in equipment for use in producing the half-barrel and has $250,000 worth
of block-feed inventory already packaged in half-barrel containers. Cf. Landers, Frary
& Clark v. Universal Cooler Corp., 85 F.2d 46, 49 (2d Cir. 1936) (Hand, J.) ("[T]he
defendant spent large sums in reliance upon its apparent immunity . . . . Moreover, the
estoppel need not depend upon expenditure alone. When for eight years one plans
one's business on the assumption that one may use a mark, it is a grave dislocation of
the business to stop its use . . . ."); Hilton Int'l Co. v. Hilton Hotels Corp., 888 F. Supp.
520, 535 (S.D.N.Y. 1995) (quoting Landers). Thus, for all that presently appears,
laches applies and equity dictates that Hubbard may not enforce its mark, incontestable
though it may be, against AFS.
Furthermore, laches aside, the District Court did not abuse its discretion in
concluding that Hubbard did not establish a likelihood of consumer confusion from
AFS's continued use of the half-barrel container. The ultimate inquiry always is
whether, considering all the circumstances, a likelihood exists that consumers will be
confused about the source of the allegedly infringing product. See Children's Factory,
Inc. v. Benee's Toys, Inc., 160 F.3d 489, 496 (8th Cir. 1998); ConAgra, Inc. v.
George A. Hormel, & Co., 990 F.2d 368, 369 (8th Cir. 1993); Mutual of Omaha Ins.
Co. v. Novak, 836 F.2d 397, 399 nn.3, 4 (8th Cir. 1987), cert. denied, 488 U.S. 933
(1988). Factors relevant to this inquiry include: (1) the strength of the owner's mark;
(2) the similarity of the owner's mark to the alleged infringer's mark; (3) the degree to
which the products compete with each other; (4) the alleged infringer's intent to "pass
off" its goods as those of the trademark owner; (5) incidents of actual confusion; and
(6) whether the degree of care exercised by the consumer can eliminate a likelihood of
over four years is sufficient for laches. See, e.g., Conopco, Inc. v. Campbell Soup Co.,
95 F.3d 187, 192-93 (2d Cir. 1996) (five-year delay); Tough Traveler, Ltd. v.
Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (one-year delay); MCV, Inc. v.
King-Seeley Thermos Co., 870 F.2d 1568, 1571-72 (Fed. Cir. 1989) (four-year delay).
-5-
confusion that otherwise would exist. See Minnesota Mining & Mfg. Co. v. Rauh
Rubber, Inc., 130 F.3d 1305, 1308 (8th Cir. 1997); SquirtCo v. Seven-Up Co., 628 F.2d
1086, 1091 (8th Cir. 1980).
Hubbard argues that its mark is strong based on its incontestable status alone,
that the half-barrel container configurations used by Hubbard and AFS are identical,
and that the products packaged by Hubbard and AFS in the half-barrel container
directly compete with one another. Hubbard concedes, however, that it did not present
evidence that consumers actually are confused by AFS's use of the half-barrel.
Although evidence of actual confusion is not necessary for a finding that a likelihood
of confusion exists, it is perhaps the most effective way to prove a likelihood of
confusion. See Stuart Hall Co. v. Ampad Corp., 51 F.3d 780, 790-91 (8th Cir. 1995);
Woodsmith Pub. Co. v. Meredith Corp., 904 F.2d 1244, 1249 (8th Cir. 1990); SquirtCo,
628 F.2d at 1091. Considering that AFS has persisted in using the half-barrel container
for over two decades, and has done so with Hubbard's knowledge since 1988,
Hubbard's failure to present evidence of consumer confusion owing to AFS's allegedly
infringing conduct is telling. Furthermore, that AFS affixes a large Smartlic label to its
half-barrel and paints the half-barrel a light tan color, while Hubbard's half-barrel is
black and unlabeled, repudiates the contention that AFS intends to pass its Smartlic
product off as Hubbard's Crystalyx. In these circumstances, the District Court did not
abuse its discretion in determining that the likelihood-of-confusion facet of the case,
which is central to success on the merits, see Minnesota Mining, 130 F.3d at 1308
("[C]onsumer confusion . . . is the hallmark of any trademark infringement claim."
(internal quotation omitted)), does not sustain Hubbard's motion for a preliminary
injunction.
In support of the second DataPhase factor, irreparable harm in the absence of a
preliminary injunction, Hubbard repeats its assertion of consumer confusion resulting
from AFS's use of the half-barrel container. As we already have concluded, Hubbard's
evidence fails to show any likelihood of consumer confusion. Moreover, as the District
-6-
Court determined, Hubbard's delay in objecting to AFS's use of the half-barrel belies
any claim of irreparable injury pending trial. See Tough Traveler, Ltd. v. Outbound
Prods., 60 F.3d 964, 968 (2d Cir. 1995) (stating that delay in moving for preliminary
injunctive relief negates any presumption of irreparable harm based on consumer
confusion and may, standing alone, justify denial of preliminary injunctive relief).
Finally, Hubbard's remaining arguments regarding the third and fourth Dataphase
factors, the balance of hardships and the public interest, are unconvincing and cannot
overcome Hubbard's failure to show a probability of success on the merits and a threat
of irreparable injury. See Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th
Cir. 1994) ("No single factor in itself is dispositive[,] . . . . [h]owever, a party moving
for a preliminary injunction is required to show the threat of irreparable harm." (internal
quotation and citation omitted)); Modern Computer Sys., Inc. v. Modern Banking Sys.,
Inc., 871 F.2d 734, 738 (8th Cir. 1989) (en banc) (same).
We hold the District Court did not abuse its discretion in denying Hubbard's
motion for a preliminary injunction. Of course, neither the District Court's denial of the
motion nor our affirmation of the District Court's judgment will bind the District Court
or the parties in any further proceedings in this case, for adjudication of a motion for
a preliminary injunction is not a decision on the merits of the underlying case. See
Campbell "66" Express, Inc. v. Rundel, 597 F.2d 125, 130 (8th Cir. 1979) (per curiam)
(quoting Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir. 1948)); see also
Coteau Properties Co. v. Department of Interior, 53 F.3d 1466, 1482 n.2 (8th Cir. 1995)
(Heaney, J., dissenting).
The judgment of the District Court is affirmed.
-7-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-8-
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660 F.2d 277
81-2 USTC P 9671
UNITED STATES of America, Plaintiff-Appellee,v.Leroy DOYLE, Dennis P. Coffey and Coffey & Coffey,Defendants-Appellants.
No. 80-1265.
United States Court of Appeals,Seventh Circuit.
Argued Dec. 16, 1980.Decided Sept. 17, 1981.
Kevin E. O'Neill, Milwaukee, Wis., for defendants-appellants.
R. Russell Mather, Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D.C., Joan F. Kessler, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before FAIRCHILD, SPRECHER and WOOD, Circuit Judges.
FAIRCHILD, Circuit Judge.
1
Appellant taxpayer Leroy Doyle appeals from the district court's order granting summary judgment in favor of the Internal Revenue Service on Mr. Doyle's counterclaim and granting partial summary judgment in favor of the Service on its main claim.
2
On July 18, 1978, Doyle was arrested at his residence in Milwaukee for possession of controlled substances including cocaine, heroin, marijuana and barbiturates. In searching his residence, the Milwaukee police discovered and seized $5,301.73 in cash. Doyle hired appellants Dennis Coffey and the law firm of Coffey & Coffey to defend him.
3
On August 10, 1978, Dennis Coffey served a notice of attorney's lien on the Milwaukee Police Department, asserting his firm's interest in the $5,301.73 as part of a $7,500.00 legal fee Doyle owed Coffey & Coffey. On August 18, a Wisconsin state court judge entered an order directing the Milwaukee police to return the cash to Doyle.
4
After Doyle's arrest, the Internal Revenue Service obtained his books and records and determined that he owed the United States $41,202.25 in income tax for the period January 1, 1978 to July 18, 1978. This determination was made pursuant to section 6851 of the Internal Revenue Code (26 U.S.C. § 6851), which provides that if the Service finds a taxpayer designs to conceal himself or his assets to avoid paying his income tax, the Service may declare his tax year terminated, calculate the tax owed for the terminated period, and declare such tax immediately due and payable. Having made this "termination assessment," the IRS filed a tax lien with the Milwaukee County Register of Deeds on August 16, 1978, and on the same day made demand on the Milwaukee Police Department for the $5,301.73 seized from Doyle, as partial satisfaction of the tax lien. Because of the other claims on the money, the Milwaukee Police refused to turn it over to the IRS.
5
Accordingly, the Service filed the present action in the District Court for the Eastern District of Wisconsin, seeking (1) a determination of the tax lien's priority over Coffey & Coffey's attorney's lien; (2) enforcement of the tax lien against the $5,301.73 stake held by the Milwaukee Police; and (3) a determination that Doyle's tax liability is $41,202.25.
6
Meanwhile, Doyle sought administrative review of the termination assessment under section 7429(a) of the Internal Revenue Code.1 The Internal Revenue Service found the termination assessment reasonable. Doyle then sought judicial review of the assessment, pursuant to section 7429(b), by filing a counterclaim in the present action.2 Doyle filed the counterclaim on October 27, 1978. He did not inform the court that section 7429(b) requires it to rule within 20 days, and the court, unaware of this time limit, did not follow it. On February 20, 1979, when the court still had not acted, Doyle moved for summary judgment, arguing that the termination assessment became void and unenforceable by operation of law when the court failed to act within 20 days. The IRS, in response, moved for summary judgment in its favor on the counterclaim and, on its main claim, for partial summary judgment according the tax lien priority over the attorney's lien.
7
On January 25, 1980, the district court entered an order granting summary judgment to the Service on Doyle's counterclaim, granting partial summary judgment to the Service on the priority issue, and ordering payment of the disputed $5,301.73 to the Service. The determination of the tax liability remained open. Doyle then brought this appeal.
8
On this appeal, Doyle argues that section 7429(b) must be construed to render the assessment void and unenforceable upon lapse of 20 days without decision by the district court. The IRS counters that the assessment is not thereby rendered void, and in addition, argues that this court lacks appellate jurisdiction because section 7429(f) precludes appellate review of the district court's order.3
9
These two questions, whether the district court's order was unauthorized because the assessment was automatically invalidated by the lapse of 20 days, and whether this court has appellate jurisdiction to review the district court's order, are somewhat interdependent. Were we convinced that the lower court's delay rendered the assessment void by operation of law, we would necessarily conclude that the district court was without jurisdiction to issue an order upholding the assessment. In that case we would have appellate jurisdiction to correct the manifest error of the district court.4
10
We conclude, however, that the delay in this case did not automatically void the assessment and therefore did not affect the authority of the district court to rule. Therefore, we have no jurisdiction to review the district court's order, and the appeal must be dismissed.
11
Termination assessments, authorized by section 6851 of the Internal Revenue Code, operate to freeze the assets of the taxpayer until the existence and amount of tax liability is determined. Obviously, these procedures can often work a serious hardship on the taxpayer, and for that reason Congress enacted section 7429, as part of the Tax Reform Act of 1976, to provide speedy relief where the assessment is unreasonable. See Vicknair v. United States, 617 F.2d 1129 (5th Cir. 1980). After administrative review pursuant to section 7429(a), the taxpayer may seek de novo review of the reasonableness of the assessment in federal district court, under section 7429(b). Congress' intent that relief from an improper assessment be prompt is manifested in the requirement that the district court render a decision within 20 days.
12
There is no dispute here that the district court's failure to comply with the 20-day time limit was error. We view such error, moreover, as inherently prejudicial because it deprives the taxpayer of the intended benefit of the statute prompt review of the reasonableness of the termination assessment. However, we are not convinced that an assessment must become void whenever the court fails to meet the statutory deadline. The deadline is extraordinary in itself, and it is extraordinarily short. It is understandable, therefore, that a district court may allow the deadline to pass unless it is informed of the need for expedited review. Under such circumstances, we think the taxpayer must bear the responsibility of informing the district court of the statutory time constraint involved. This places no special burden on the taxpayer, who is no doubt acutely aware of the deadline, and seems the most reasonable means of avoiding the sort of inadvertent error that occurred here, and of achieving the prompt action envisioned by the statute.
13
In the present case, Doyle failed to show sufficient diligence in pressing his section 7429 right to expedited review. He did not initially inform the court of the statutory time constraints, and after the 20 days had passed, he allowed another 117 days to go by before taking any action at all. Having shown minimal concern for his section 7429 right, we do not think he is now entitled to the extreme remedy of voiding the assessment by operation of law. Since the assessment was not automatically voided, it follows that the district court had full authority to consider and rule upon the reasonableness of it under section 7429(b).
14
Having determined that the district court acted within its statutory authority, we must conclude that we may not review the district court's decision in any way. Section 7429(f) is explicit that the lower court's decision "shall not be reviewed by any other court." Congress clearly had authority to cut off challenges to emergency tax assessments at the district court level. We have no more jurisdiction to review the untimely order of the district court than we have to review a timely one. Accordingly we must dismiss this appeal.
15
Appeal dismissed.
1
Section 7429(a) provides:
(a) Administrative review.
(1) Information to taxpayer. Within 5 days after the day on which an assessment is made under section 6851(a), 6861(a), or 6862, the Secretary shall provide the taxpayer with a written statement of the information upon which the Secretary relies in making such assessment.
(2) Request for review. Within 30 days after the day on which the taxpayer is furnished the written statement described in paragraph (1), or within 30 days after the last day of the period within which such statement is required to be furnished, the taxpayer may request the Secretary to review the action taken.
(3) Redetermination by Secretary. After a request for review is made under paragraph (2), the Secretary shall determine whether or not
(A) the making of the assessment under section 6851, 6861, or 6862, as the case may be, is reasonable under the circumstances, and
(B) the amount so assessed or demanded as a result of the action taken under section 6851, 6861, or 6862 is appropriate under the circumstances.
26 U.S.C. § 7429(a).
2
Section 7429(b) provides:
(b) Judicial review.
(1) Actions permitted. Within 30 days after the earlier of
(A) the day the Secretary notifies the taxpayer of his determination described in subsection (a)(3), or
(B) the 16th day after the request described in subsection (a)(2) was made,
the taxpayer may bring a civil action against the United States in a district court of the United States for a determination under this subsection.
(2) Determination by district court. Within 20 days after an action is commenced under paragraph (1), the district court shall determine whether or not
(A) the making of the assessment under section 6851, 6861, or 6862, as the case may be, is reasonable under the circumstances, and
(B) the amount so assessed or demanded as a result of the action taken under section 6851, 6861, or 6862, is appropriate under the circumstances.
(3) Order of district court. If the court determines that the making of such assessment is unreasonable or that the amount assessed or demanded is inappropriate, the court may order the Secretary to abate such assessment, to redetermine (in whole or in part) the amount assessed or demanded, or to take such other action as the court finds appropriate.
26 U.S.C. § 7429(b).
3
Section 7429(f) provides:
(f) Finality of determination. Any determination made by a district court under this section shall be final and conclusive and shall not be reviewed by any other court.
4
Cf. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) (statute precluding judicial review of "any" Veterans Administration decision held not to preclude judicial review of the constitutionality of the legislation authorizing the Veterans' Administration to act); Wayne State University v. Cleland, 590 F.2d 627 (6th Cir. 1978) (same statute did not preclude judicial review of Veterans' Administration's statutory authority to promulgate certain regulations); Ralpho v. Bell, 569 F.2d 607 (D.C.Cir.1977) (statute prohibiting judicial review of settlements under Micronesian Claims Act held not to preclude review of scope of Micronesian Claims Commission's statutory authority)
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Case: 19-20830 Document: 00515476899 Page: 1 Date Filed: 07/02/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-20830
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MOLIKA AKWO NWEME, also known as Johnson Tabe Epie,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-497-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Molika Akwo Nweme has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Nweme has filed a response and a supplemental response. The record is not
sufficiently developed to allow us to make a fair evaluation of Nweme’s claims
of ineffective assistance of counsel; we therefore decline to consider the claims
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-20830 Document: 00515476899 Page: 2 Date Filed: 07/02/2020
No. 19-20830
without prejudice to collateral review. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Nweme’s response and his supplemental response.
We concur with counsel’s assessment that the appeal presents no nonfrivolous
issue for appellate review. Accordingly, the motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Nweme’s motion to proceed
pro se on appeal is DENIED. See United States v. Wagner, 158 F.3d 901, 902-
03 (5th Cir. 1998).
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6563
FRANKIE JAE LORDMASTER,
Plaintiff - Appellant,
v.
AUGUSTA CORRECTIONAL CENTER PERSONNEL; VIRGINIA DEPARTMENT
OF CORRECTIONS AGENTS; KITCHEN PERSONNEL; SUPERVISORY
PERSONNEL; CFD HEARING PERSONNEL; POLICY MAKING PERSONNEL;
CFD COMMITTEE; INSTITUTIONAL PROGRAM MANAGER; WARDEN,
Defendants - Appellees.
No. 14-6566
FRANKIE JAE LORDMASTER,
Plaintiff - Appellant,
v.
AUGUSTA CORRECTIONAL CENTER PERSONNEL; VIRGINIA DEPARTMENT
OF CORRECTIONS AGENTS; OTHER AGENTS OF GOVERNMENT; LAW
LIBRARY SECRETARY; LAW LIBRARY MANAGER; SUPERVISORY
PERSONNEL; LAW LIBRARY HEARING PERSONNEL; POLICY MAKING
PERSONNEL; LAW LIBRARY COMMITTEE; IPM; WARDEN,
Defendants - Appellees.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:14-cv-00014-MFU-RSB; 7:14-cv-00021-MFU-RSB)
Submitted: May 29, 2014 Decided: June 3, 2014
Before SHEDD, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frankie Jae LordMaster, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In these consolidated cases, Frankie Jae LordMaster
seeks to appeal the district court’s orders dismissing without
prejudice his 42 U.S.C. § 1983 (2006) complaints for failure to
comply with the court’s orders and denying his motions for
reconsideration. See Fed. R. Civ. P. 59(e). We have reviewed
the records and find no reversible error. Accordingly, we
affirm for the reasons stated by the district court.
LordMaster v. Augusta Corr. Ctr. Personnel, Nos. 7:14-cv-00014-
MFU-RSB; 7:14-cv-00021-MFU-RSB (W.D. Va. filed Feb. 7, 2014 &
entered Feb. 10, 2014; Apr. 10, 2014). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
3
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225 N.W.2d 589 (1975)
Teresa MURRAY, a minor by her father, Arnold Murray, guardian ad litem, Plaintiff and Appellant,
v.
The SIOUX FALLS BOARD OF EDUCATION et al., Defendants and Respondents.
No. 11430.
Supreme Court of South Dakota.
February 3, 1975.
David V. Vrooman, Sioux Falls, for plaintiff and appellant.
Deming Smith of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and respondents.
DUNN, Chief Justice.
The plaintiff, Teresa Murray, was denied access to classes at Lincoln High School under a board policy establishing boundary lines for attendance areas of Washington and Lincoln High Schools in Sioux Falls, South Dakota. She sought injunctive relief in circuit court which was denied for the reason that the action was not instituted within the 90 days provided for appeal of a final board action under SDCL 13-46-1. She appeals from this order. We affirm.
Pursuant to board policy No. 5117, the school administration established boundary lines for the attendance areas of Washington and Lincoln High Schools. In August 1970, the Murray family moved from 2905 South Second Avenue, in the Lincoln High attendance area, to 4905 Cottonwood, which was in the Washington High attendance *590 area. Teresa Murray enrolled at Lincoln High in August 1972, giving her correct address of 4905 Cottonwood. Due to the fact that Cottonwood was a new street, the school authorities did not immediately recognize the address as being in the Washington High attendance area. This was later brought to their attention, and in March 1973, Teresa was informed that she could complete her sophomore year at Lincoln, but that she would have to transfer to Washington for her junior and senior years. On April 25, 1973, Dr. Harris, superintendent of schools, gave formal notice of this decision to Teresa's parents. No appeal was taken from this decision. Rather, Teresa registered at Lincoln High for her junior year giving an incorrect address. When this fact came to light, she was ordered to transfer to Washington at the end of the first quarter of school. This suit followed wherein a temporary restraining order was granted, and Teresa has been attending Lincoln High School under this temporary order to date.
In carrying out board policy, the superintendent's letter of April 25, 1973, was a notification of a final decision of the board properly appealable under SDCL 13-46-1. No appeal was taken within the 90-day period provided, and the trial court properly dismissed the action. Hall v. Salem Ind. Sch. Dist. No. 17, 1974, S.D., 217 N.W.2d 160. Nor can injunction be used as a substitute for the appeal provided in SDCL 13-46-1. Sauer v. Bowdle Independent School District No. 36, 1973, S.D., 212 N.W.2d 499.
The contention of plaintiff that the time was extended because of the fact that the administration had to again order Teresa Murray to leave Lincoln High School is untenable. She cannot be permitted to benefit from her attempt to deceive the school authorities by giving an incorrect address.
The judgment of the trial court is affirmed.
WINANS and WOLLMAN and DOYLE, JJ., concur.
COLER, J., dissents.
COLER, Justice (dissenting).
I would reverse and remand the case with direction to grant the injunction. As stated in the majority opinion the "school administration" adopted the attendance areas. The board policy left the entire matter up to the administration and took no action itself to adopt or ratify the act of the administration consisting solely of drawing a general map of the City of Sioux Falls which did not indicate the street upon which petitioner actually resided.
SDCL 13-28-19 grants authority to the independent school board to "assign and distribute the resident students eligible for secondary education among the high schools in the district." The legislature may delegate such a legislative function and has done so. "In the exercise of such delegated authority, the board acts as the agent of the legislature and its power is limited by the statute vesting the authority." Sunnywood Common School District No. 46 of Minnehaha County v. County Board of Education of Minnehaha County, 1964, 81 S.D. 110, 131 N.W.2d 105. The board cannot delegate its authority to the superintendent of schools or other officers as it attempted to do by policy statements designated as Policy 5117 and 5119. Camp Crook Ind. Dist. v. Shevling, 1936, 65 S.D. 14, 270 N.W. 518; 78 C.J.S. Schools and School Districts § 99, p. 848. This is true because, as stated in Sutherland on Statutory Construction, 4th Ed., § 4.14, "When the power delegated is legislative, the purpose of a plural-headed agency is defeated if subdelegation is permitted. The legislative desire for multiple judgment in rule-making would be defeated."
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979 F.2d 849
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of AMERICA, Plaintiff-Appellee,v.Charles Steven CAMPBELL, Claimant-Appellant,and 5528 Belle Pond Drive, Centreville, Virginia 22020; 386IBM Compatible Computer Monitor; Printer;Keyboard and Related Accessories, Defendants.
No. 92-1104.
United States Court of Appeals,Fourth Circuit.
Argued: October 1, 1992Decided: November 16, 1992
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CA-91-330-A)
ARGUED: John A. Keats, Fairfax, Virginia, for Appellant.
Gordon Dean Kromberg, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Richard Cullen, United States Attorney, Alexandria, Virginia, for Appellee.
E.D.Va.
Affirmed.
Before ERVIN, Chief Judge, LUTTIG, Circuit Judge, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.
PER CURIAM:
OPINION
1
Appellant C. Steven Campbell challenges an order of the district court granting the Government's motion for civil forfeiture of his house, see 21 U.S.C. § 881(a)(7). Campbell contends that the district court erred in finding that the Government had met its burden of establishing a substantial connection between the house and a felony violation of the drug laws. He also argues that the district court erred in admitting evidence obtained from a search of the house. We discern no error by the district court, and therefore affirm.
I.
2
Upon receiving an anonymous tip that "Bobby" was growing and selling marijuana at 5528 Belle Pond Drive in Centreville, Virginia, three Fairfax County police officers visited the house on February 19, 1991. See J.A. at 80, 128-29, 144-45, 211. Appellant Campbell answered their knock at the door, and they explained to him the nature of the complaint. See id. at 80, 129, 147-48, 187. When the officers told Campbell that "no one would be arrested that night" if he led them to the marijuana, Campbell took the officers to the basement bedroom of his seventeen-year old ward, Robert Hagemeyer. See id. at 80, 148-49, 174, 188. There the officers found approximately twenty-seven marijuana plants growing in wooden boxes, seven more plants hanging from wires on the ceiling, marijuana drying on boards and aluminum foil, electric growing lights, and temperature gauges. See id. at 80-81, 130-36, 176. They also found a computer printout tracking the growth of about thirty marijuana plants. See id. at 81, 140, 160, 190. Campbell told the police that the information on the printout was stored in his computer. See id. at 81, 163. Finally, the police found small amounts of marijuana in other rooms, including Campbell's bedroom. See id. at 81, 155. Campbell admitted that Hagemeyer grew marijuana at the house and sold oneeighth ounce quantities at a price of $25 each. Id. at 81, 139, 159-60, 209. Campbell also admitted to being a regular marijuana user himself. See id. at 81, 185-86, 204.
3
In March 1991, the Government brought this civil forfeiture action against the house and the computer equipment, to which Campbell is the sole disputed claimant. See 21 U.S.C.s 881(a)(2),(7). While the forfeiture action was pending, Campbell pled guilty in Fairfax Circuit Court to possession of marijuana and contributing to the delinquency of a minor. See J.A. at 89-102. The forfeiture action proceeded to trial, and the district court granted forfeiture of the property. Campbell appeals the forfeiture of his house.
II.
4
The district court rejected Campbell's arguments that the Government had not shown probable cause that the house was subject to forfeiture. See United States v. 7715 Betsy Bruce Lane, 906 F.2d 110, 112-13 (4th Cir. 1990) (probable cause requires evidence of a "substantial connection between the property and the underlying criminal activity").1 The court found the "nexus between the house and the crime clear and substantial. The house functioned as a factory (for the manufacture of marijuana), a warehouse (for the storage of marijuana), and a distribution center (for the sale of marijuana)." J.A. at 84. Having considered Campbell's arguments that probable cause was lacking, we find them without merit. We accordingly affirm on the reasoning of the district court. See id. at 77-88.
III.
5
Campbell also argues that the search of his house violated the Fourth Amendment and that the district court erroneously admitted evidence obtained through that search. The court did not expressly address this argument in its opinion, but did overrule Campbell's objection at trial that the evidence was tainted. See id. at 130.
6
We reject Campbell's argument. It is doubtful that the Fourth Amendment "exclusionary rule" even applies to the use in federal civil forfeiture proceedings of evidence seized by state police officers. See United States v. Janis, 428 U.S. 433, 459-60 (1976) ("We ... hold that the judicially created exclusionary rule should not be extended to forbid the use in the civil proceeding of one sovereign of evidence seized by a criminal law enforcement agent of another sovereign."). Nonetheless, even assuming the rule applies, the search was valid because Campbell voluntarily consented to it. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Upon answering the door, Campbell led the officers to the marijuana and provided information about its cultivation. Campbell now contends that his consent was coerced because "the police officer gave [him] the clear 'impression' that if [he] did not accede to his request, that he would be immediately arrested." Appellant's Br. at 24. Yet, especially when examined in the "totality of the circumstances" as required by Schneckloth, 412 U.S. at 248-29, the statement of the officers that no one would be arrested that night if Campbell led them to the marijuana does not constitute coercion. Campbell has offered no evidence of fraud or force, nor does he contend that the officers so much as mentioned a warrant. See id. at 247 (finding consent search valid where "no evidence of any inherently coercive tactics"); United States v. Hummer, 916 F.2d 186, 190 (4th Cir.) (threat to seek search warrant did not render consent coerced), cert. denied, 111 S. Ct. 1608 (1990). Nor need the Government show that Campbell "knew of the right to refuse to consent for the search to be deemed a voluntary one." United States v. Gordon, 895 F.2d 932, 938 (4th Cir.) (citing Schneckloth, 412 U.S. at 248-49), cert. denied, 111 S. Ct. 131 (1990). Because Campbell's consent was not coerced, the district court did not err in admitting the fruits of the search.2
CONCLUSION
7
For the reasons stated herein, we affirm the judgment of the district court.
AFFIRMED
1
Real property is subject to forfeiture where it is "used, or intended to be used, in any manner or part to commit, or to facilitate the commission of, a violation of [title 21] punishable by more than one year's imprisonment, except ... by reason of any act or omission established by [the property's] owner to have been committed or omitted without the knowledge or consent of that owner." 21 U.S.C. § 881(a)(7)
2
Campbell also contends that the search exceeded the scope of his consent because it extended beyond the basement into the rest of the house. This argument is irrelevant because the evidence obtained in the rest of the house (two small quantities of marijuana) was but an immaterial part of the Government's evidence showing probable cause. See J.A. at 156 (total marijuana found upstairs measured one or two grams). Even were we to assume, which we do not, that the evidence seized upstairs was beyond the scope of Campbell's consent, the admission of that evidence was harmless, see Fed. R. Civ. P. 61, especially in light of the "normal presumption in non-jury cases" that the trial judge will only have relied on the properly admitted evidence, United States v. Smith, 390 F.2d 420, 422 n.2 (4th Cir. 1968)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10525
c/w No. 02-10603
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE DYANE ADAMS,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC Nos. 6:99-CR-18-ALL-C
6:99-CR-18-1-C
--------------------
September 27, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Wayne Dyane Adams, prisoner number 34109-077, who was
convicted of making a false statement in connection with the
acquisition of a firearm, appeals the district court’s denial of
his “motion for judgment nunc pro tunc” and moves this court for
authorization to proceed in forma pauperis (IFP) on appeal. To
proceed IFP, Adams must demonstrate both financial eligibility and
*
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.
Nos. 02-10525 c/w 02-10603
-2-
a nonfrivolous issue for appeal. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982).
Because Adams’ motion challenged the manner in which his
sentence is being executed, it is best construed as a 28 U.S.C.
§ 2241 habeas corpus petition. See Tijerina v. Thornburgh, 884
F.2d 861, 863 (5th Cir. 1989); United States v. Santora, 711 F.2d
41, 42 n.1 (5th Cir. 1983). The district court lacked jurisdiction
to consider Adams’ petition because he is incarcerated in the
Eastern District of Texas. See United States v. Gabor, 905 F.2d
76, 78 (5th Cir. 1990); see also 28 U.S.C. § 124(c)(2). Because
the district court lacked jurisdiction over Adams’ 28 U.S.C. § 2241
petition, Adams’ appeal is without arguable merit and is thus
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Because this appeal is frivolous, it is DISMISSED, and Adams’
motion to proceed IFP on appeal is DENIED. See 5th Cir. R. 42.2.
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789 F.2d 74
RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, Plaintiff, Appellee,v.The OHIO CASUALTY INSURANCE COMPANY, Defendant, Appellant.
No. 85-1876.
United States Court of Appeals,First Circuit.
Argued Feb. 6, 1986.Decided April 25, 1986.
Louis J. Burnett, Birmingham, Mich., with whom Anthony F. Muri, Barbara S. Cohen, Licht & Semonoff, Providence, R.I., were on brief, for defendant, appellant.
George Vetter, with whom Gordon P. Cleary, Vetter & White, Providence, R.I., were on brief, for plaintiff, appellee.
Before COFFIN and BOWNES, Circuit Judges, MAZZONE, District Judge*.
COFFIN, Circuit Judge.
1
This case involves the complex world of suretyship law and its impact on the rights of two financial institutions who are parties here because of their relationships with the buyer and seller of wood burning stoves. The district court found that appellant, Ohio Casualty Insurance Company (Ohio Casualty), was required to pay to appellee, Rhode Island Hospital Trust National Bank (the Bank), $325,000 on a bond that Ohio Casualty had issued on behalf of the stove buyer, Franklin America. The bond originally had been issued to the seller of the wood stoves, Franklin Cast (Cast),1 but Cast had assigned its right to collect to the Bank. After a careful review of the authorities and the facts, we reverse.
I. Facts
2
In November 1979, Cast, a Rhode Island corporation, entered into an agreement with Franklin America, a Michigan corporation, under which Franklin America was to distribute wood burning stoves imported from Taiwan by Cast. Cast's ability to import the stoves was dependent in the first instance on financing from the Bank. Since 1977, the Bank had been issuing letters of credit to Cast's supplier in Taiwan to secure Cast's purchases. In turn, the Bank would request a letter of credit from Cast's customers as security for the money it had advanced for the import purchases. In this case, however, Franklin America proposed the use of surety credit rather than a bank letter of credit, and the Bank agreed. Although there were other bonds issued and cancelled, the two bonds relevant here were issued by Ohio Casualty on behalf of Franklin America on December 15, 1979, in the amounts of $325,000 and $350,000.2
3
On December 20, 1979, Cast informed Ohio Casualty, Franklin America's surety, that it had assigned all of its claims on the bonds to the Bank. Ohio "acknowledged" receipt of the notice of assignment, although it previously had asserted that this type of bond could not be assigned, prompting the Bank to withdraw an earlier assignment.
4
On June 9, 1981, Cast notified Ohio Casualty that it intended to proceed against the bonds if Franklin America's balance of $625,257.74 for stoves shipped as of December 31, 1980, was not paid by the end of 1981. Before Cast took any such action against Franklin America and Ohio Casualty, Franklin America took the initiative. In July 1981, it sued Cast in the United States District Court for the Eastern District of Michigan, alleging, inter alia, breach of contract and misrepresentation in connection with the stove shipments, and seeking $1 million in damages. Cast, which went out of business in November 1981, did not appear to defend the Michigan suit, and a default judgment was entered against it in the amount of $901,949.
5
The Bank, which had been a co-defendant in the Michigan lawsuit, had successfully sought dismissal from that case on jurisdictional grounds. In April 1982, it brought the action that is the subject of this appeal, seeking payment from Ohio Casualty on the two bonds issued in December 1979. The district court, 613 F.Supp. 1197, found that the $350,000 bond had been legitimately cancelled by Ohio Casualty, but that Ohio Casualty was obligated to pay on the $325,000 bond. The district court found that, under the principles of suretyship applicable to this case, Ohio Casualty was unconditionally liable on the bonds once Franklin America failed to pay for the stoves it received. Ohio Casualty filed this appeal, claiming, inter alia, that the district court's view of suretyship law was in error.
II. Summary
6
Because the law and the relationships of the parties here are complex, we believe it is helpful at the outset to summarize our discussion. We first address briefly and generally the law of suretyship, describing the two types of surety arrangements that may have been used in this case, a suretyship as a primary obligation or a guaranty. The district court held that the type of suretyship determined whether Ohio Casualty was obligated to pay the Bank on the bonds. We disagree that that question is pivotal, and so we do not discuss the question of whether Ohio Casualty served as a surety or as a guarantor for Franklin America. Instead, we move directly from our general discussion of the types of suretyship to a discussion of the defenses available to sureties and guarantors. We conclude that, whatever the nature of the suretyship here, Ohio Casualty was entitled to raise certain defenses available to its principal, among them a prior judgment in favor of the principal. This conclusion leads us to find that the original creditor, Cast, is barred from collecting on the bonds as a result of the default judgment in favor of Franklin America in Michigan.
7
Finally, after the discussion of defenses, we shall turn to the assignment issue. Although Cast, as the original creditor, would be barred from collecting on the bonds, we must consider whether its assignee, the Bank, which was dismissed from the Michigan action, is subject to the same defense. We conclude that it is, and we explain the principles of res judicata, assignment and suretyship law that lead us to such a conclusion.3
III. Discussion
8
Our primary task in this case is to answer a purely legal question: whether a surety such as Ohio Casualty may assert the defenses of its principal in a suit by the beneficiary of the suretyship agreement. We thus begin with a general discussion of suretyship law, and then discuss its application to the facts of this case.
A. Suretyship and Its Defenses
9
A suretyship is a contractual arrangement in which one party, the "surety", agrees to back up the obligation of another, termed the "principal" or "principal debtor", the latter bearing the primary burden of performing for the creditor. See, e.g., 10 W. Jaeger, Williston on Contracts Sec. 1211, at 683 (3d ed. 1967) (hereinafter Williston ) at 683; L. Simpson, Simpson on Suretyship 4-7 (1950) (hereinafter Simpson ). The term "surety" is often used broadly to include all forms of suretyship, including the "guaranty". It also is used in a narrow sense to indicate a direct, primary obligation to pay someone else's debt, as distinguished from the secondary, collateral obligation of a "guarantor". Simpson 6-9; Williston Sec. 1211, at 684-686; E. Arnold, Suretyship and Guaranty Sec. 4, at 7 (1927) (hereinafter Arnold). The difference between the primary obligation of the surety and the secondary obligation of the guarantor is that the surety joins the original contract with the principal and may be sued as an unconditional promisor along with the principal; the guarantor's liability arises from an independent agreement and is expressly conditioned upon default by the principal. 38 Am.Jur.2d Guaranty Sec. 15 (1968); Simpson 10-11.
10
The district court found that Ohio Casualty served in the role of a guarantor. It also ruled that sureties who bear a primary obligation to the creditor may assert the defenses of their principals, but guarantors may not do so. The court therefore refused to allow Ohio Casualty to use the Michigan default judgment as an affirmative defense against the Bank's claims on the two bonds.
11
We conclude that the district court's distinction between the defenses available to a guarantor and those available to a surety who has a primary obligation reflects an erroneous view of the law. The distinction between a surety serving as a primary obligor and a guarantor--that is, the primary vs. the secondary obligation--is relevant to defenses only in that a guarantor sued by a creditor has one potential defense that a surety does not: the defense that the principal has not yet defaulted. We think it is contrary to both precedent and logic to treat sureties and guarantors differently when the defense concerns the continuing viability of the underlying obligation. In fact, the terms "surety" and "guarantor" often are used interchangeably, reflecting their nearly identical characteristics. Restatement of Security Sec. 82 (1941); Simpson 8; Williston Sec. 1211, at 687; J. Elder, The Law of Suretyship Sec. 1.5, at 4 (5th ed. 1951) (hereinafter Law of Suretyship ); see also C-E Building Products, Inc. v. Seal-Rite Aluminum Products of N.H., 114 N.H. 150, 316 A.2d 198, 198-99 (1974) (using terms interchangeably); Morris & Co. v. Lucker, 158 Mich. 518, 123 N.W. 21, 22 (1909). As a leading commentator points out:
12
"The rights of the surety and the guarantor against the creditor are the same, provided that the creditor knows that the relation of suretyship exists. The outstanding and perhaps only important respect in which the guarantor's undertaking differs from that of the surety is that it is expressly conditioned on the principal's nonperformance of duty." Simpson 22.4
13
Because the liability of sureties and guarantors is virtually identical,5 we need not decide which obligation Ohio Casualty agreed to undertake. Instead, we turn to the question of suretyship defenses. The basic rule on the liability of sureties is that "the surety is not liable to the creditor unless his principal is liable"[;] thus he may plead the defenses which are available to his principal", Williston Sec. 1214, at 714; Law of Suretyship Sec. 7.1, at 200. See Asociacion de Azucareros de Guatemala v. United States National Bank of Oregon, 423 F.2d 638, 641 (9th Cir.1970); Stephens v. First Bank and Trust of Richardson, 540 S.W.2d 572, 574 (C.C.A.Tex.1976); C-E Building Products, Inc. v. Seal-Rite Aluminum Products of N.H., 316 A.2d 198, 199, 114 N.H. 150 (1974); The Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P.2d 72, 76 (1956); Krekel v. Thomasma, 255 Mich. 283, 238 N.W. 255, 256 (1931) (the liability of guarantors "depends on the liability of their principal"); Stifel Estate Co. v. Cella, 220 Mo.App. 657, 291 S.W. 515, 519 (1927) ("If the guarantee has no cause of action against the principal, certainly there could be no obligation on the part of the guarantors to pay.").
14
There are some limitations on this broad rule. None, however, is applicable here.6 Rather, it seems to us that this case involves a specific defense that is widely recognized as available to a surety:7 a prior judgment in favor of the principal debtor. "It is almost invariably held that a judgment in favor of the principal debtor is a conclusive answer to a suit by the creditor against the surety," Simpson 326; Restatement of Security Sec. 139; Williston Sec. 1255, at 814-815; New Paltz Central School District v. Reliance Insurance Co., 97 A.D.2d 566, 467 N.Y.S.2d 937, 938 (1983). The rationale for this principle is that "since the judgment in favor of the principal determines either that he owed no duty or that there was no breach of it, it is a defense to the surety". Simpson 326-27.8
15
This rule on the preclusive impact of a prior judgment for the principal does not apply in every case. There is one category of suretyships in which the surety's promise is made unconditionally, so that the surety promises to pay no matter how valid the reason for the principal's failure. Williston Sec. 1255, at 814; Simpson 327.9 When that form of suretyship is used, the surety's only defenses are in equity. Williston Sec. 1255, at 814.
16
In applying these legal principles to the facts before us, we note first that the Michigan default judgment determined that Franklin America is no longer indebted to Cast. Under the basic tenet of suretyship law, Ohio Casualty, as Franklin America's surety, would no longer be liable if its principal is not liable. If, however, Ohio Casualty's suretyship promise was unconditional, it would be liable regardless of its principal's liability, unless it could raise an equitable defense.
17
Although we need not decide the issue, we doubt that the suretyship here involved an unconditional promise. First, although the bonds do not expressly condition Ohio Casualty's obligation on Franklin America's improper default, neither do they state that they are unconditional. Cf. Robey v. Walton Lumber Co., 17 Wash.2d 242, 135 P.2d 95, 97 (1943); Warner v. Caldwell, 354 So.2d 91, 96 (Fla.App.1977). The bonds state that they remain in effect unless the principal receives merchandise and makes payment "according to the terms of the agreement". According to the Bank, this language means that once Franklin America failed to pay according to the payment terms specified in the distributorship agreement, the bonds were actionable. The Bank contends that any other failure by any party--such as the alleged breach of contract here by Cast--has no impact on the validity of the bonds. The problem is that the quoted language also can easily be read to mean that no payment is due under the bonds unless Franklin America both received appropriate merchandise (i.e., merchandise living up to contract conditions) and failed to pay for it in accordance with the contract provisions. In any case, there is no express statement that the bonds are unconditional and the language, therefore, is of little practical help.
18
Second, according to testimony presented at trial, the Bank knew when it accepted a surety bond that it would be more difficult to collect on it than on a letter of credit because "the insurance company would fight having to make payment." This concession suggests that the Bank realized the bonds were not unconditional, in contrast to the letter of credit it usually required in these circumstances. See J. White and R. Summers, Uniform Commercial Code Sec. 18-2, at 712 (2d ed. 1980).
19
Third, and most significantly, the commercial context strongly refutes the notion that this is an unconditional suretyship. The security device typically considered the alternative to a letter of credit is the guaranty. See, e.g., Barclays Bank D.C.O. v. Mercantile National Bank, 481 F.2d 1224, 1236 n. 18 (5th Cir.1973); Bank of North Carolina, N.A. v. The Rock Island Bank, 570 F.2d 202, 206 and n. 7 (7th Cir.1978); Uniform Commercial Code Sec. 18-2, at 712-713. The guaranty is undoubtedly preferred over the suretyship as a primary obligation because financial institutions are not in the business of entering into commercial transactions jointly with the businesses they are securing. Rather, the business of a financial institution is that of the classic suretyship--to bear the risk of an improper default by the principal. If it would be unusual for an independent financial institution like Ohio Casualty to serve as a surety in the role of a primary obligor, it would be far more unusual for it to unconditionally secure another business's debt. Cf. Castle & Co. v. Public Service Underwriters, 198 Wash. 576, 89 P.2d 506, 512-513 (1939) (court found unconditional promise by surety; surety was, in effect, alter ego of the principal).
20
Whether or not this suretyship was conditional, however, we conclude that the principles of equity operate so as to bar the Bank's claim against Ohio Casualty. As we noted above, even the surety who makes an unconditional promise to pay may invoke equitable defenses. We draw upon both general suretyship doctrine and the facts of this case to reach our conclusion that Ohio Casualty is entitled to such a defense.
21
First, the purpose of a suretyship in commercial transactions is to protect the creditor against the possible unjustified nonpayment by the principal debtor. Law of Suretyship Sec. 1.1, at 1. Once a court has held that the debtor has no debt resulting from a given transaction, when the reason for the extinction of the claim stems from behavior of the creditor, it would be unjust then to allow the creditor to collect from the debtor's surety. The surety presumably entered the transaction on the basis of its evaluation of the principal's ability and willingness to fulfill the obligation in the first instance. And yet, that evaluation would be meaningless if the surety's obligation were not at least dependent upon the creditor fulfilling its end of the bargain in good faith. When the creditor has defaulted in some manner, it makes sense to impose on the creditor the cost of an error in business judgment, rather than to add to the surety's risks the burden of a deficient performance by the creditor. See Warner v. Caldwell, 354 So.2d 91, 96 (Fla.1977) (notwithstanding fact that contract said guaranty was unconditional, "the law imposes on the creditor an obligation not to deal with the debtor, or any security for the debt, in such a manner as to harm the interest of the guarantors"); New York Indemnity Co. v. Hurst, 252 Ky. 59, 66 S.W.2d 8, 15 (1933); Simpson 3.
22
The logic is significantly different when the principal's nonperformance is based on a personal defense; in such a case, the creditor has done all that it agreed to do, the principal's nonperformance is due to no fault of the creditor, and the risk is more appropriately allocated to the surety, who had agreed to back up the obligation of the nonperforming debtor. Simpson 328.
23
We therefore hold that even if Ohio Casualty's surety obligation was unconditional, it is entitled to assert as a release from its obligation the Michigan judgment in favor of its principal, Franklin America, which was predicated on Cast's breach of contract in the transaction that Ohio Casualty secured. This conclusion, however, does not end the case. Although the Michigan judgment unquestionably is conclusive as to Cast, the original creditor and a party in the prior case,10 we must consider whether the prior judgment may be used against the Bank, Cast's assignee.
B. Assignment
24
Ohio Casualty offers two different arguments as to the effect of assignment on the transaction here. First, it claims that the bonds could not be assigned to the Bank at all, and so the Bank has no right to collect on them. The second argument is that, as Cast's assignee, the Bank is subject to the doctrine of res judicata as it relates to the Michigan default judgment. We think the first issue is a close call, and choose not to decide it. Instead, we shall analyze the impact of the Michigan judgment on the Bank's right to collect on the bonds from the three different legal perspectives that are relevant here. First, under suretyship law, where the surety's responsibility is to secure an obligation of the principal, the extinction of the obligation logically should extinguish the surety's responsibility no matter who seeks to assert the claim. See 18 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure Sec. 4460, at 531 (1981) (in special contract relationships of guaranty and suretyship, "the power to conduct litigation that binds others must be found or denied as simply one more incident of the underlying relationships. A prior judgment, indeed, is often important as an event that affects the substantive relationships of the parties rather than as an adjudication."). Second, under contract principles, an "assignee 'stands in the shoes' of the assignor", Williston Sec. 432, at 182, and "acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor", Restatement (Second) of Contracts Sec. 336(1) (1981). Finally, under principles of res judicata, a judgment against an assignor may in certain circumstances bind the assignee. 1B J. Moore, J. Lucas and T. Currier, Moore's Federal Practice p 0.411 (2d ed. 1984).
25
Under whatever theory we use to analyze this case, the result is the same. As for suretyship law, little more needs to be said in light of our previous discussion on defenses. If the claim that Cast had assigned to the Bank was extinguished by the Michigan judgment, thus barring Cast from collecting on the bonds, we see no logic or justification under which the obligation would return to life when asserted by the Bank rather than Cast.
26
Under assignment principles, an assignee is not bound by any defense resulting from an agreement or discharge made by the assignor after the obligor has received notice of the assignment. J. Calamari and J. Perillo, The Law of Contracts 650 (2d ed. 1977). That doctrine is inapplicable here. Although Ohio Casualty, the obligor, had notice of the assignment before the Michigan lawsuit was even filed, the assignor, Cast, neither made an agreement nor executed a discharge to relieve Franklin America of its debt. Instead, the claim that Cast assigned to the Bank was rendered valueless involuntarily by circumstances connected "to that transaction upon which the assigned right depends for its existence", A. Corbin, Corbin on Contracts Sec. 895, at 591.
27
"The assignee must know at his peril the conditional character of the right that is assigned to him. As in the case of the purchase of a horse, the rule is caveat emptor, except that here the rule is used in favor of the obligor, instead of the seller, and is applied in full vigor." Id.
28
An assignor obviously can not avoid the consequences of its breach of contract by shifting its right to payment to a third party. This is the classic case in which the assignee, standing in the shoes of the assignor, is stuck holding less than what the assignor purported to convey. See, e.g., Caribbean Steamship Co. v. Sonmez Denizcilik Ve Ticaret A.S., 598 F.2d 1264 (2d Cir.1979).
29
Finally, the principles of res judicata suggest the same result. A prior judgment is conclusive against a party to the action in which it was rendered, or the party's "privy", 1B Moore's Federal Practice, p 0.411. An assignee is usually considered in privity with the assignor, id. at p 0.411. There are exceptions, however, to the privity status between an assignor and assignee. For example, there is no preclusion if the assignment took place before the litigation that is now raised as conclusive of its rights; logically, the assignee should not be bound by a judgment rendered against the assignor once the assignor no longer has the incentive to defend vigorously.
30
While it is true that, in this case, the Michigan judgment occurred after Cast had assigned the bonds to the Bank, that fact does not help the Bank in this particular factual context. Whether a party is in privity with another depends largely on the specific circumstances at issue; privity, in fact, has been described as any "relationship that justifies binding someone not a party". Moore's Federal Practice p 0.411, at 392. Here, the Bank originally was a party to the Michigan litigation. It successfully argued for dismissal of the claims against it in the Michigan forum on the basis of 12 U.S.C. Sec. 94, which establishes the venue for a civil action against a national bank as the district in which the bank headquarters is located. The jurisdictional dismissal occurred at the hearing on Franklin America's motion for default judgment, with counsel from the Bank in attendance. The Bank thus voluntarily spurned the opportunity to defend a suit that it knew would otherwise end with a default judgment against its assignor. Under those circumstances, notwithstanding the fact that the bank properly invoked 12 U.S.C. Sec. 94, we are dubious that the Bank can avoid the res judicata effect of the earlier judgment against its assignor. See 1B Moore's Federal Practice p 0.411 and n. 17 ("in some cases the opportunity to intervene may be enough to bind a person not a party"). It may well have been the Bank's erroneous view of the law relative to suretyship defenses that led it to seek dismissal rather than to mount a defense. But the Bank's legal error seems insufficient justification to deny Ohio Casualty the benefit of the prior litigation.
31
"We have stressed that '[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and private peace,' which should be cordially regarded and enforced by the courts....' Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299 [37 S.Ct. 506, 507, 61 L.Ed. 1148] (1917)." Federated Department Stores v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103 (1981).
32
In light of the facts here, we suspect that justice would be served by giving effect to the doctrine of res judicata on behalf of Ohio Casualty.11 In any case, under the laws of suretyship and assignment, the Bank is subject to Ohio Casualty's defense based on the Michigan judgment.
33
In conclusion, we reverse the judgment of the district court for the following reasons: first, whether Ohio Casualty served in the role of a surety as primary obligor or guarantor, it was entitled to raise the Michigan default judgment to avoid the Bank's claim; second, that prior judgment effectively extinguished Ohio Casualty's obligations under the bond at issue; and, finally, the principles of suretyship and assignment law, and perhaps res judicata as well, operate so as to make Ohio Casualty's defense applicable to the Bank, as Cast's assignee.
34
Reversed.
*
Of the District of Massachusetts, sitting by designation
1
We refer to Franklin Cast by the second word of its name to avoid confusion with its distributor, Franklin America
2
In fact, we are concerned only with one of those two bonds. The district court held that the Bank could not collect on the $350,000 bond because Ohio Casualty had refused to consent to an extension of payment under that bond and cancelled it in July 1980. Appellee does not appeal this aspect of the district court's judgment. We therefore consider only appellant's arguments that the $325,000 bond also should not be honored
3
Our disposition of this case means we need not discuss appellant's other arguments regarding admission into evidence of business records, and prejudgment interest
4
There is a difference between sureties as primary obligors and guarantors in their right to set-offs. Commentators uniformly state that if a creditor sues the surety alone, the surety may not set off the principal's independent claims against the creditor. Williston Sec. 1214, at 716; Simpson 319-20; Law of Suretyship Sec. 7.21, at 234-235. See also Stifel Estate Co. v. Cella, 220 Mo.App. 657, 291 S.W. 515, 518 (1927). When both principal and surety are sued jointly, however, the surety is allowed to set off the principal's claims. Simpson 324-325. In contrast, since a guarantor and principal usually may not be sued together, because they usually are involved in separate contracts, the guarantor almost never is able to set off the principal's claims against the creditor
This difference between sureties and guarantors has no relevance here, however, because a guarantor (or surety) may raise set-offs or counterclaims of its principal if these have been assigned to it, or if the principal consents to their use. See Continental Group v. Justice, 536 F.Supp. 658, 661 (D.Del.1982). Franklin America assigned the Michigan default judgment to Ohio Casualty. Therefore, Ohio Casualty's ability to raise the Michigan default judgment in the instant case is the same whether it served as a surety or guarantor.
5
There is no claim here related to the Bank's alleged failure to seek payment first from Franklin America, which would be a requirement of a guaranty arrangement
6
For example, a surety may not assert personal defenses of its principal, such as insanity, infancy, or duress, and also may not claim defenses that arise by operation of law, such as the statute of limitations. Williston Sec. 1214, at 715-716; Law of Suretyship Sec. 7.1, at 201; 38 C.J.S. Guaranty Sec. 88 (1943). A surety is sometimes barred from raising the principal's defense of fraud in the inducement of the contract, Simpson 278-79, and some courts have held that a breach of warranty claim may not be asserted by a surety in an action against the surety alone. Simpson 319; 38 Am.Jur.2d Guaranty Sec. 52 (1968)
7
Even if Franklin America's contract claims against Cast are viewed as counterclaims, rather than as the basis for an affirmative defense, it would make no difference in the outcome of this case because Ohio Casualty still would be able to raise the Michigan judgment as a bar to its liability. See note 4 supra
8
We recognize that this is not the typical case in which a creditor sues his principal, judgment goes against the creditor, and the creditor next tries to sue the surety. Nevertheless, we believe the principle operates in this case as well since the Michigan judgment established that Cast was indebted to Franklin America as a result of the stove contract transaction in an amount well in excess of what Cast attempted to collect in the later suit
9
Simpson, while acknowledging the existence of transactions involving such a promise, questions whether they are, in fact, suretyships. See Simpson 327 n. 10
10
The fact that the Michigan judgment was in the form of a default does not matter. Morris v. Jones, 329 U.S. 545, 550-51, 67 S.Ct. 451, 455, 91 L.Ed. 488 (1947) (" 'A judgment of a court having jurisdiction of the parties and of the subject matter operates as res judicata, in the absence of fraud or collusion, even if obtained upon a default' "); 1B J. Moore, J. Lucas and T. Currier, Moore's Federal Practice p 0.409 (2d ed. 1984). See Fed.R.Civ.P. 54(c)
11
The Bank in its brief barely recognizes the res judicata issue, asserting only that under Restatement (Second) of Judgments Sec. 55 and Restatement of Judgments Sec. 89, the Bank would "in no event" be bound by the Michigan judgment. We disagree. We assume that the Bank was making reference to subsection (2) of Sec. 55, which states that "[t]he determination of issues in an action by or against either assignee or assignor is not preclusive against the other of them in a subsequent action", with exceptions not applicable here. The entire section does not apply here because we are concerned not with a question of relitigating issues in a new action, but of the preclusive effect of the entire judgment
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993 P.2d 222 (1999)
1999 Utah Ct. App. 355
DEJAVUE, INC., a Utah corporation; Kristine C. Schultz; and Allison Nord, Plaintiffs, Appellee, and Cross-appellant,
v.
U.S. ENERGY CORP., a Wyoming corporation, Defendant, Appellant, and Cross-appellee.
No. 981772-CA.
Court of Appeals of Utah.
December 2, 1999.
*224 Merrill F. Nelson, Kirton & McConkie, Salt Lake City, and Kenneth A.B. Roberts, Jr., Denver, Colorado, for Appellant and Cross-appellee.
Walter F. Bugden, James E. Morton, Tara L. Isaacson, Morton, Collins & Bugden, and Jeffery S. Williams, Giauque, Crockett, Bendinger & Peterson, Salt Lake City, for Appellee and Cross-appellant.
Before WILKINS, P.J., BILLINGS, and ORME, JJ.
OPINION
WILKINS, Presiding Judge:
¶ 1 Defendant, U.S. Energy Corp., appeals a jury verdict awarding plaintiff, Dejavue, Inc., $90,871 in compensatory damages, $62,500 in punitive damages, and $91,668 in attorney fees. On appeal, U.S. Energy claims the trial court abused its discretion in refusing to either grant a judgment notwithstanding the verdict (JNOV) or order a new trial. U.S. Energy also attacks the trial court's award of attorney fees. Dejavue cross-appeals, claiming the trial court erred as a matter of law in refusing to award it prejudgment interest on the jury award. In addition, Dejavue requests attorney fees on appeal. We affirm and remand.
BACKGROUND
¶ 2 U.S. Energy owns and operates a mobile home park, convenience store, motel, restaurant and lounge in Ticaboo, Utah, approximately ten miles from Lake Powell. In May 1995, U.S. Energy subleased the restaurant and lounge facilities to Dejavue, Inc. (Dejavue), a corporation with two shareholders, Allison Nord and Kristine Schultz. Shortly thereafter, the parties agreed that Dejavue would also oversee the mobile home park, convenience store, and motel, for which Dejavue was to receive a $4,000 monthly management fee.
¶ 3 In February 1996, problems arose between the parties, ultimately resulting in the termination of Dejavue's lease and the removal of Nord and Schultz as managers of the mobile home park, convenience store, and motel. Thereafter, Dejavue, Nord, and Schultz brought suit against U.S. Energy alleging various contract and tort claims. U.S. Energy counterclaimed for breach of contract. Before trial, Schultz abandoned her claims and therefore they were not presented to the jury.
¶ 4 The case was tried in June 1998. At trial, Nord asserted a cause of action for intentional infliction of emotional distress and Dejavue asserted claims for breach of contract, forcible entry, unlawful detainer, conversion, misrepresentation, and unjust enrichment. U.S. Energy asserted a counterclaim for breach of contract, misrepresentation, contractual indemnification, and accounting. In order to impeach one of U.S. Energy's witnesses, Dejavue offered into evidence U.S. Energy's 1997 Annual Report (the report) "to demonstrate that U.S. Energy conducted its business practices in a deceptive fashion." The trial court admitted the report into evidence without objection from U.S. Energy.
¶ 5 At the close of trial, the case was submitted to the jury on general verdict forms, with a separate general verdict form for Nord, Dejavue, and U.S. Energy on its counterclaim. The jury returned one signed verdict form, awarding Dejavue $90,871 in compensatory damages. Because the jury left the general verdict forms for Nord and U.S. Energy blank, the trial court instructed the jury foreman to enter zero as the amount of damages and sign both forms. After the jury returned its compensatory award in favor of Dejavue, the jury deliberated again and awarded Dejavue $62,500 in punitive damages. In post-trial proceedings, the trial court refused to award Dejavue prejudgment interest on its compensatory damage award, but concluded Dejavue was the prevailing party and entitled to attorney fees under the sublease agreement.
¶ 6 In August 1998, U.S. Energy filed a motion for JNOV, or, in the alternative, for a new trial. U.S. Energy argued the trial court erred in admitting U.S. Energy's 1997 Annual Report and that the evidence was insufficient to support a punitive damage award. The trial court denied U.S. Energy's motion. In October 1998, the trial court entered findings of fact, conclusions of law, and an order awarding Dejavue $90,871 in compensatory damages, $62,500 in punitive *225 damages, and $91,668 in attorney fees. This appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶ 7 We address three issues on appeal. First, we consider whether the trial court abused its discretion in denying U.S. Energy's motion for JNOV or, alternatively, for a new trial. When a party challenges the sufficiency of evidence underlying a trial court's denial of a motion for JNOV or a new trial, "we reverse only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict." Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). Furthermore, "the appealing party `must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" Heslop v. Bank of Utah, 839 P.2d 828, 839 (Utah 1992) (quoting Crookston, 817 P.2d at 799).
¶ 8 Second, we address whether the trial court correctly awarded attorney fees to Dejavue as the prevailing party. Whether attorney fees are recoverable is a question of law which we review for correctness. See Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). However, the trial court has "broad discretion in determining what constitutes a reasonable fee, and we will consider that determination against an abuse-of-discretion standard." Dixie State Bank v. Bracken, 764 P.2d 985, 991 (Utah 1988).
¶ 9 Finally, we address whether the trial court erred in denying Dejavue's request for prejudgment interest on its compensatory damage award. We review the award of prejudgment interest, a question of law, under a correction of error standard. See Andreason v. Aetna Cas. & Sur. Co., 848 P.2d 171, 177 (Utah Ct.App.1993).
ANALYSIS
I. REFUSAL TO GRANT JNOV OR ORDER NEW TRIAL
¶ 10 U.S. Energy claims two points of error in the trial court's refusal to set aside the jury's verdict and either grant a JNOV or order a new trial. First, U.S. Energy contends that the trial court improperly admitted evidence concerning its financial condition during the compensatory damages phase of the trial. Second, U.S. Energy argues the jury failed to make the requisite finding of willful and malicious conduct necessary to support an award of punitive damages. We address each point in turn.
A. Evidence of U.S. Energy's Financial Condition
¶ 11 Section 78-18-1 of the Utah Code provides that evidence of a party's wealth or financial condition is inadmissible until a finding of liability for punitive damages has been made. See Utah Code Ann. § 78-18-1(2) (1996). This rule is intended to prevent juries from being improperly influenced by a party's wealth in assessing compensatory damages damages which should be based solely on losses, not the losing party's ability to pay. See Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 456 (Utah 1993). In this case, Dejavue introduced U.S. Energy's 1997 Annual Report during the compensatory damage phase of the trial, before a finding of liability for punitive damages had been made. Although the report was offered for impeachment purposes, it contained financial information regarding U.S. Energy's assets and net worth. However, U.S. Energy did not object to the admission of the report. It is well settled that issues not raised before the trial court are waived on appeal. See State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986) (stating in order "[t]o preserve a contention of error in the admission of evidence for appeal, a defendant must raise a timely objection in the trial court"). Because U.S. Energy failed to preserve the issue of admission of the report by raising a timely objection, we decline to further address this argument.
B. Sufficiency of the Evidence
¶ 12 Because U.S. Energy's challenge to the jury's punitive damages award amounts to an attack on the sufficiency of the evidence, it "must marshal all evidence supporting the verdict" and then show that the evidence cannot support the verdict. Von *226 Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985). "The burden on an appellant to establish that the evidence does not support the jury's verdict ... is quite heavy." Cambelt Int'l Corp. v. Dalton, 745 P.2d 1239, 1242 (Utah 1987).
¶ 13 In this case, U.S. Energy has failed to meet this burden. U.S. Energy has not marshaled the evidence upon which the jury could have based a finding of willful and malicious conduct, nor has it argued that this evidence was insufficient to support the jury's punitive damage award. U.S. Energy ignores evidence that it forcibly removed Dejavue from the leased premises, as well as evidence that it failed to negotiate the motel management agreement in good faith. Finally, U.S. Energy overlooks evidence that it converted Dejavue's restaurant equipment and used it for two years without Dejavue's consent.
¶ 14 Instead, U.S. Energy merely states those facts most favorable to its position and ignores the contrary evidence. This is not adequate. See ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.App.1997). We have shown no reluctance to affirm the jury's verdict when a party fails to meet its marshaling burden. See, e.g., Wright v. Westside Nursery, 787 P.2d 508, 514 (Utah Ct.App.1990). Accordingly, we assume the record supports the jury's verdict and refuse to consider U.S. Energy's claim of insufficient evidence.
C. Finding of Willful and Malicious Conduct
¶ 15 U.S. Energy also challenges what it considers to be the trial court's failure to require a specific finding of willful and malicious conduct on its part by the jury prior to consideration of the amount of punitive damages to be awarded. However, U.S. Energy concedes that it failed to object to the procedure followed by the trial court in this regard, or to object to the jury instructions given by which the jury learned of its responsibilities in considering the requested award of punitive damages.
¶ 16 Having failed to object at trial, U.S. Energy may not now complain. See VanDyke v. Mountain Coin Mach. Distribs., Inc., 758 P.2d 962, 964 (Utah Ct.App.1988) ("If a party fails to object to a jury instruction, the objection is deemed waived on appeal."). As U.S. Energy also conceded at oral argument, the jury instructions given on this issue were sufficient to instruct the jury on the law. We assume the jury followed those instructions. See State v. Burk, 839 P.2d 880, 883 (Utah Ct.App.1992) ("In the absence of the appearance of something persuasive to the contrary, we assume that the jurors were conscientious in performing to their duty, and that they followed the instructions of the court." (citations omitted)). Accordingly, we find no error in the absence of a specific, pre-damages finding by the jury of willful and malicious conduct on the part of U.S. Energy.
II. ATTORNEY FEES
¶ 17 U.S. Energy also challenges the trial court's award of attorney fees to Dejavue as the prevailing party. Specifically, U.S. Energy argues; (1) the sublease agreement does not provide a basis for awarding Dejavue attorney fees; (2) Dejavue cannot establish that it prevailed on a breach of contract claim; and (3) in any event, the fees are excessive. We disagree.
A. Sublease Agreement
¶ 18 The sublease agreement between the parties specifically provides that in the event of default by Dejavue, U.S. Energy shall have the right to recover reasonable attorney fees and costs. Utah law provides for the reciprocal right to recover attorney fees, and permits a court to award attorney fees to either party prevailing in an action based on a written contract, when the contract permits at least one party to recover such fees. See Utah Code Ann. § 78-27-56.5 (1996). However, "attorney fees authorized by contract are awardable only in accordance with the explicit terms of the contract." Maynard v. Wharton, 912 P.2d 446, 451 (Utah Ct.App.1996). Thus, under the terms of the sublease agreement and pursuant to Utah law, Dejavue is clearly entitled to an award of attorney fees if it indeed prevailed on either its own breach of contract claim, or *227 in defending against U.S. Energy's breach of contract counterclaim.
B. Breach of Contract Claims
¶ 19 The jury returned a general verdict awarding Dejavue $90,871 in compensatory damages. Because the general verdict form did not identify the specific claims on which the award was based, we are unable to determine whether Dejavue prevailed on its breach of contract claim. However, with respect to U.S. Energy's counterclaim for breach of contract, the jury returned a "no cause of action" verdict in Dejavue's favor. Thus, although it is uncertain whether Dejavue prevailed on its breach of contract claim, Dejavue was clearly successful in defending against U.S. Energy's breach of contract counterclaim.
¶ 20 Where a contract provides the "right to attorney fees, Utah courts have allowed the party who successfully prosecuted or defended against a claim to recover the fees attributable to those claims on which the party was successful." Occidental/Nebraska Fed. Sav. v. Mehr, 791 P.2d 217, 221 (Utah Ct.App.1990). Furthermore, when a plaintiff brings multiple claims involving a common core of facts and related legal theories, and prevails on at least some of its claims, it is entitled to compensation for all attorney fees reasonably incurred in the litigation. See Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). "However, a plaintiff must, at a minimum, be a prevailing party with respect to a portion of the litigation in order to receive fees." Stewart v. Donges, 979 F.2d 179, 183 (10th Cir. 1992); see Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir.1995) ("If claims are related, failure on some claims should not preclude full recovery if plaintiff achieves success on a significant, interrelated claim."); Durant v. Independent Sch. Dist. No. 16, 990 F.2d 560, 566 (10th Cir.1993) (stating because plaintiff's "claims arose out of a common core of facts and involved related legal theories, the district court may ... conclude her prevailing party status on ... [one] claim subsumes her failure to succeed [on the other.]"); Sprouse v. Jager, 806 P.2d 219, 226 (Utah Ct.App.1991) ("Because these complex issues were so intertwined, we find the court acted within its discretion in its award of attorney fees").
¶ 21 In the present case, Dejavue successfully defended against U.S. Energy's breach of contract counterclaim. Accordingly, Dejavue is entitled to attorney fees under the sublease agreement. Furthermore, Dejavue's contract and tort claims were based on related legal theories involving a common core of facts. The trial court specifically found that
the claims advanced by Dejavue, and interposed as defenses to the counterclaims, were based on inter-related legal theories and arose from a common core of facts.... Each of Dejavue's claims submitted to the jury was intertwined with its defense of the breach of contract ... counterclaims and arose from a common core of facts.
U.S. Energy does not dispute these factual findings and therefore, we accept them as true. See C & Y Corp. v. General Biometrics, Inc., 896 P.2d 47, 52 (Utah Ct.App.1995) ("Because appellants do not challenge the trial court's factual findings, we must accept this finding as true."). Accordingly, we affirm the trial court's conclusion that Dejavue is the prevailing party in this case and entitled to "attorney fees incurred in presenting all of its legal theories."
C. Reasonableness of Attorney Fees
¶ 22 We now consider whether the fees awarded to Dejavue were reasonable. Calculation of reasonable attorney fees is within the sound discretion of the trial court, so long as the fees are supported by the evidence in the record. See Baldwin v. Burton, 850 P.2d 1188, 1199 (Utah 1993). Among the factors to be considered by the trial court in considering the reasonableness of the fee are "the extent of services rendered, the difficulty of the issues involved, the reasonableness of time spent on the case, fees charged in the locality for similar services, and the necessity of bringing an action to vindicate rights." Id. at 1200. The trial court considered these factors, prepared written findings supporting its action, and ultimately awarded Dejavue slightly less than three quarters of the fees it sought.
*228 ¶ 23 In this case, the trial court's determination that the attorney fees awarded were reasonable is amply supported by the evidence. Dejavue submitted attorney fee affidavits that included detailed billing statements. Additionally, Dejavue submitted the expert affidavits of three local attorneys specializing in civil litigation who attested to the reasonableness and necessity of Dejavue's fee request. U.S. Energy, in turn, failed to offer any evidence to refute the reasonableness of Dejavue's fee request. Because the record supports the trial court's award of attorney fees, we cannot say the trial court clearly exceeded its permitted discretion in awarding Dejavue $91,668 in attorney fees. Therefore, we affirm the trial court's ruling on this issue.
III. CROSS-APPEAL
¶ 24 Dejavue cross-appeals the trial court's refusal to award prejudgment interest. Under Utah law, prejudgment interest may be awarded to provide full compensation for actual loss. See Canyon Country Store v. Bracey, 781 P.2d 414, 422 (Utah 1989). The award is proper if the loss is fixed at a definite time and the interest can be calculated with mathematical accuracy. See Coalville City v. Lundgren, 930 P.2d 1206, 1212 (Utah Ct.App.1997). However, because of the lack of mathematical certainty, prejudgment interest is typically not allowed in actions seeking equitable relief such as unjust enrichment. See Shoreline Dev., Inc. v. Utah County, 835 P.2d 207, 211 (Utah Ct.App.1992); see also James Constructors v. Salt Lake City, 888 P.2d 665, 671 n. 4 (Utah Ct.App.1994) (stating "Utah courts have upheld the denial of prejudgment interest in actions seeking ... unjust enrichment"); Bailey-Allen Co., Inc. v. Kurzet, 876 P.2d 421, 427 (Utah Ct.App.1994) (concluding "even if quantum meruit is awarded on remand, no prejudgment interest should be awarded").
¶ 25 In this case, one of the five causes of action Dejavue submitted to the jury was an unjust enrichment claim. Although the jury awarded Dejavue $90,871 in compensatory damages, the general verdict form did not identify the specific claims on which the award was based. While an award of prejudgment interest might well be appropriate under the breach of contract claim, such an award is highly problematic with respect to the forcible entry, unlawful detainer, and conversion claims. However, it would never be appropriate for the unjust enrichment claim presented here. In this case, the trial court had no way of knowing under which theory or theories of liability the jury awarded its verdict. Thus, it was impossible for the trial court to determine to what extent, if any, the jury's damage award was based on Dejavue's unjust enrichment claim a claim which is not subject to an award of prejudgment interest. See Shoreline Dev., Inc., 835 P.2d at 211 (rejecting claim for prejudgment interest on unjust enrichment award). Under these circumstances, because of the lack of mathematical certainty, we conclude the trial court correctly denied Dejavue prejudgment interest.
IV. ATTORNEY FEES ON APPEAL
¶ 26 Finally, Dejavue, having prevailed below, and again on appeal, requests attorney fees incurred in connection with this appeal. Such an award is clearly within the contemplation of the sublease agreement. See Management Servs. Corp. v. Development Assocs., 617 P.2d 406, 409 (Utah 1980) (ruling provision in contract providing for attorney fees includes attorney fees incurred by the prevailing party on appeal). Accordingly, we award Dejavue reasonable attorney fees incurred on appeal, and remand for the limited purpose of determining the amount of those fees.
CONCLUSION
¶ 27 We conclude the trial court properly denied U.S. Energy's motion for JNOV, or, in the alternative, for a new trial. U.S. Energy failed to object to the admission of the report. Also, because U.S. Energy failed to properly marshal the evidence supporting the jury's punitive damage award, we decline to disturb those findings. Further, we hold that under the sublease agreement, Dejavue was the prevailing party and entitled to "attorney fees incurred in presenting all of its *229 legal theories." Moreover, we conclude that the trial court's award of attorney fees was reasonable and that the trial court properly denied Dejavue's request for prejudgment interest. Finally, we award Dejavue attorney fees on appeal, and remand for a determination of the amount of those fees.
¶ 28 Affirmed and remanded.
¶ 29 I CONCUR: JUDITH M. BILLINGS, Judge.
¶ 30 I concur, except that as to Section II(A) & (B), I concur only in the result: GREGORY K. ORME, Judge.
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723 F.2d 1077
SULLIVAN, Johnv.CUYLER, Julius T., Superintendent, Graterford StateCorrectional Institution and District Attorney ofPhiladelphia County.Appeal of Julius T. CUYLER and the District Attorney ofPhiladelphia County.SULLIVAN, Johnv.CUYLER, Julius T., Superintendent, Graterford StateCorrectional Institution and District Attorney ofPhiladelphia CountyAppeal of John SULLIVAN.
Nos. 82-1829, 83-1040.
United States Court of Appeals,Third Circuit.
Argued Nov. 1, 1983.Decided Dec. 8, 1983.Rehearing and Rehearing In Banc Denied Jan. 12, 1984.
Kenneth S. Gallant (argued), Michael Clarke, Leslie Anne Sudock, Asst. Dist. Attys., Eric B. Henson, Deputy Dist. Atty., Edward G. Rendell, Dist. Atty. of Philadelphia, Philadelphia, Pa., for appellants, cross-appellees, Cuyler, et al.
Marilyn J. Gelb (argued), Jeremy C. Gelb, Philadelphia, Pa., for appellee, cross-appellant, Sullivan.
Before ALDISERT, HUNTER and WEIS, Circuit Judges.OPINION OF THE COURT
ALDISERT, Circuit Judge.
Two primary questions are presented by this appeal and cross appeal from the district court's conditional grant of a state prisoner's petition for writ of habeas corpus: (1) whether there was sufficient evidence to support petitioner's conviction for first degree murder; and (2) whether representation by two attorneys of both the petitioner and his co-defendants created a conflict of interest violative of petitioner's sixth amendment right to effective assistance of counsel. We agree with the district court that a writ of habeas corpus should issue because even though there was sufficient evidence to support petitioner's conviction, there was proof that an actual conflict of interest adversely affected his attorneys' performance. We affirm the district court on that basis.
I.
Appellant John Sullivan was indicted with Gregory Carchidi and Anthony DiPasquale for the first degree murders of John Gorey and Rita Janda. The victims, a labor union official and his companion, were fatally shot in Gorey's second floor office at the Philadelphia headquarters of Teamsters' Local 107. Sullivan was the first defendant to come to trial. The evidence against him was entirely circumstantial, consisting primarily of the testimony of Francis McGrath--a janitor at the union hall where the bodies were discovered. McGrath testified: (1) that when he came to work on the evening of June 17, 1966, he saw Sullivan's car parked next to DiPasquale's in the lot adjacent to the union hall; (2) that he saw Sullivan at the window of a second floor conference room normally used by other union officials; (3) that after he entered the hall, Sullivan told him to leave, but he ignored the suggestion; (4) that he saw Gorey and Janda enter the building, at which time Sullivan again urged him to leave, but he again refused; (5) that Carchidi, another janitor on duty that night, also urged him to leave; (6) that shortly after these warnings, he heard sounds like firecrackers going off in rapid succession, and Carchidi told him, not in the presence of Sullivan, to "Get out of the building and don't say nothing," whereupon McGrath left the building; and (7) that when he left, cars belonging to DiPasquale, Gorey, Carchidi, and Sullivan were in the lot, but that when he returned fifteen minutes later, only Gorey's car remained, and he found the offices closed, the conference room locked, and the lights out in the union hall. The bodies of Gorey and Janda were discovered the next morning, shot four and six times respectively. Evidence established the time of death to be about 7:15 p.m. on June 17, 1966, or about the time McGrath heard the firecracker-like sounds.1
At the close of the Commonwealth's case, the defense rested. The decision not to present evidence was made jointly by Sullivan and his attorneys, G. Fred DiBona and A. Charles Peruto, who also represented Carchidi and DiPasquale throughout the state proceedings following their indictments. The jury found Sullivan guilty and fixed his penalty at life imprisonment. Sullivan's post-trial motions were denied, and an equally divided court affirmed his conviction. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971). After obtaining new counsel, Sullivan twice sought reconsideration of that decision, and both applications were denied. See Commonwealth v. Sullivan, 472 Pa. 129, 180, 371 A.2d 468, 492 (1977) (Pomeroy, J., concurring and dissenting).
1
Sullivan then sought collateral relief under the Pennsylvania Post-Conviction Hearing Act, 42 Pa.Cons.Stat.Ann. Secs. 9541-9551 (Purdon 1982), alleging, inter alia, that (1) the admission into evidence at trial of color slides of the victims' bodies violated his constitutional right to due process; (2) there was insufficient evidence to support his conviction; and (3) his defense attorneys had a conflict of interest that denied him his sixth amendment right to effective assistance of counsel. In five days of evidentiary hearings, the trial court took testimony from Sullivan, Carchidi, DiBona, and Peruto. It then held that Sullivan could take a second direct appeal because counsel had not assisted him adequately in the preparation of his first appeal. The court did not pass directly on the claim that defense counsel had a conflict of interest. It specifically reserved Sullivan's claim regarding the admission of color slides into evidence for consideration in the new appeal.
2
The Pennsylvania Supreme Court denied collateral relief and thereby re-affirmed Sullivan's original conviction. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). It found, inter alia, that: (1) the state trial court did not abuse its discretion in admitting the color slides into evidence; (2) Sullivan's conviction was supported by sufficient evidence; and (3) there was no multiple representation necessary to prove a conflict of interest because DiBona represented Sullivan and Peruto represented Carchidi and DiPasquale. It supported its conflict of interest determination by crediting DiBona's testimony at the post-conviction hearing that "his stewardship was in no way affected by the consideration of the co-defendant's cases but was solely a product of what he considered to be the best course in his representation of Sullivan." 472 Pa. at 161, 371 A.2d at 483.
3
Sullivan next brought a petition under 28 U.S.C. Sec. 2254 for federal habeas corpus relief in district court, raising the same claims that we noted he raised in his state court petition for post-conviction relief. The habeas petition was referred to a magistrate who rejected most of Sullivan's claims but found that defense counsel had represented conflicting interests. The district court accepted all of the magistrate's recommendations except his conflict of interest determination. Sullivan v. Cuyler, Civ. No. 77-2527 (E.D.Pa. Feb. 2, 1978). It chose instead to accept the Pennsylvania Supreme Court's conclusion that there had been no multiple representation.
4
On appeal, addressing only the conflict of interest issue, we held that there was sufficient involvement by both attorneys in the trials of each co-defendant to constitute multiple representation as a matter of law and that the existence of at least a possibility of a conflict of interest therefrom was sufficient to constitute a violation of petitioner's sixth amendment right to effective assistance of counsel. United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir.1979). The Supreme Court reversed. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). It agreed with us that DiBona and Peruto represented all three defendants, but determined that a showing of only a potential conflict of interest therefrom was insufficient to taint a criminal conviction. The Court required a defendant to demonstrate that "an actual conflict of interest adversely affected his lawyer's performance" before a violation of the sixth amendment could be established. Id. at 348, 100 S.Ct. at 1718. The Court remanded the cause to us, and we in turn remanded it to the district court, directing it to consider first the sufficiency of evidence question under the new standard formulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and to issue the writ without further inquiry into the remaining grounds of the petition if it concluded that the evidence was insufficient to support Sullivan's conviction. United States ex rel. Cuyler v. Sullivan, 631 F.2d 14 (3d Cir.1980). We further instructed that if the conflict of interest issue had to be reached, the district court should "reexamine its finding of no actual conflict with a certainty of knowledge of the existence of 'dual representation' and with the benefit of the Supreme Court's pronouncements in Cuyler v. Sullivan...." Id. at 17.
5
On remand, the district court again referred the case to a magistrate, who concluded that, based on the facts found by the Pennsylvania Supreme Court, there was sufficient evidence under Jackson to support Sullivan's conviction. The magistrate then addressed the conflict of interest question. He conducted an evidentiary hearing on the issue because he found the state court record deficient. Based primarily on testimony by Peruto concerning counsel's decision to rest Sullivan's defense without allowing Carchidi to testify, the magistrate found that there was sufficient evidence of an actual conflict of interest that adversely affected counsel's performance to justify issuance of the writ.
6
The district court, after consideration of the parties' objections, adopted the magistrate's findings and granted Sullivan's petition for writ of habeas corpus. It then stayed execution of the writ for sixty days to allow the Commonwealth to either appeal or relist the case for trial. United States ex rel. Sullivan v. Cuyler, 553 F.Supp. 1236 (E.D.Pa.1982). The Commonwealth appealed, and Sullivan cross appealed.
II.
7
The Commonwealth, at No. 82-1829, argues that the district court (1) erred in ordering an evidentiary hearing on the issue of conflict of interest because it was bound by the facts found by the state courts in post-conviction review; (2) violated 28 U.S.C. Sec. 636(b)(1) and article III of the Constitution by delegating the conduct of that hearing to a magistrate; (3) violated 28 U.S.C. Sec. 636(b)(1) by failing to make a true de novo review of the record in deciding the merits of the parties' objections to the magistrate's recommendation; and (4) erred in finding evidence of actual conflict of interest that adversely affected counsel's performance sufficient to justify awarding petitioner habeas relief for a violation of his sixth amendment right to effective assistance of counsel.
8
In his cross appeal, at No. 83-1040, Sullivan contends that the district court both improperly relied on an augmented trial record and misapplied Jackson to conclude that there was sufficient evidence to support his conviction. He further argues that the district court violated his fundamental constitutional right to a fair trial by admitting into evidence color slides of the victims' bodies. The Commonwealth counters that because Sullivan failed to raise this latter claim, in its constitutional posture, in state court, his entire petition must be dismissed under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
9
Two standards of review govern our consideration of these contentions. Our review of the Commonwealth's contention that the district court's finding of actual conflict of interest is error is subject to the clearly erroneous standard. Krasnov v. Dinan, 465 F.2d 1298 (3d Cir.1972). Our review of the remaining contentions, which implicate the interpretation and application of legal precepts, is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981).
10
We begin by addressing the exhaustion issue.
III.
11
A habeas corpus petition must be dismissed if it contains both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A claim is exhausted if it was "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). It need not have been decided by the state courts on the merits. Houston v. Estelle, 569 F.2d 372, 375 (5th Cir.1978).
12
Sullivan's habeas petition claims that the color slides of the victims' bodies admitted into evidence by the state trial court were highly prejudicial and inflammatory and violated his fundamental right to due process. The Commonwealth argues that because Sullivan never presented this claim to the state courts in federal constitutional terms, the claim has not been exhausted and, therefore, the entire habeas petition must be dismissed under Rose v. Lundy. We disagree.
13
Sullivan presented his constitutional argument to the state courts in his amended petition under Pennsylvania's Post-Conviction Hearing Act. That petition alleged that:
14
Petitioner is eligible for relief under the Post-Conviction Hearing Act because the Commonwealth was permitted to introduce photographs whose essential evidentiary value was outweighed by their gruesome and inflammatory character; and further the trial court failed to exercise its discretion to weigh the admissibility of the photographs by the proper rule of evidence, i.e., that the photographs were admissible only if their essential evidentiary value outweighed their gruesome and inflammatory character, all in violation of the due process clause of the Fourteenth Amendment.
15
Reply Brief for Appellant, at No. 83-1040, Exhibit A, at 9 (emphasis added).
16
In addition, counsel for Sullivan represented at oral argument that she had presented the constitutional claim to the state courts and that the Pennsylvania Supreme Court had considered it in deciding that the admission of the color slides into evidence was not an abuse of discretion. A close examination of the supreme court's opinion supports her assertion. In dissent, Justice Roberts argued that "[t]he admission into evidence of the thirty-nine color slides of the victims, in the absence of any need to have the jury see this evidence, deprived [Sullivan] of a fair trial." Commonwealth v. Sullivan, 472 Pa. at 177, 371 A.2d at 491. It is clear from this characterization of the admission of the color slides as a violation of Sullivan's fair trial right that Sullivan's due process claim was not only presented, but considered by the state court.2
IV.
17
Sullivan first argues that the magistrate, by conducting his own evidentiary hearing, impermissibly considered facts not found in the trial court record in reaching his conclusion that there was sufficient evidence to support the conviction. Because the district court adopted the magistrate's findings, Sullivan contends, its determination was error. Alternatively, he argues that even assuming the district court relied exclusively on evidence adduced at trial, that evidence was insufficient to support his conviction. We disagree with both arguments.
18
It is axiomatic that a federal habeas court reviewing the evidence in support of a petitioner's state court conviction must look to an unaugmented state court trial record. Here, the magistrate explicitly limited the evidentiary hearing he conducted to the issue of conflict of interest and based his sufficiency of evidence determination solely on facts found by the Pennsylvania courts. United States ex rel. Sullivan v. Cuyler, 553 F.Supp. at 1245-46, 1251 n. 26. Similarly, the district court only adopted the magistrate's sufficiency of evidence determination after independently reviewing the state court trial record. Id. at 1238. We conclude, therefore, that the district court properly relied on an unaugmented trial record to support its sufficiency of evidence determination.
19
Further, based solely on the state court record, there was sufficient evidence to convict. When Sullivan first presented his claim that the evidence was insufficient to support his conviction to the district court, it denied him habeas relief, relying on Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Sullivan v. Cuyler, Civ. No. 77-2527 (E.D.Pa. Feb. 2, 1978). Thompson provided that to reverse a conviction on due process grounds, there must be no evidence of record to support it. The United States Supreme Court subsequently found the Thompson "no evidence" rule inadequate to protect against misapplications of the constitutional standard of reasonable doubt. It thus established a new standard of review to govern the sufficiency of evidence inquiry:
20
the relevant question is whether, after reviewing 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.3
21
Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; see also Paullet v. Howard, 634 F.2d 117, 118 (3d Cir.1980) (per curiam). On remand, therefore, we instructed the district court to reconsider the sufficiency issue under Jackson. United States ex rel. Cuyler v. Sullivan, 631 F.2d at 16. The district court found that a rational trier of fact could have found Sullivan guilty of conspiracy beyond a reasonable doubt.
22
Considering the evidence, as we must, in the light most favorable to the Commonwealth, we agree with the district court, although we fully confess that this issue is very close. We find that a reasonable juror could have inferred that Sullivan came to the union hall on June 17, 1966 to await the arrival of Gorey and Janda, that at about 7:15 p.m. that evening, Gorey and Janda were murdered, that Sullivan was present in the union hall at the time of the killings, and that Sullivan and others left the scene immediately following the shooting, after first attempting to conceal the murders. In addition, a reasonable juror could have inferred that Sullivan and Carchidi wanted McGrath--a potential witness--out of the building before the shooting occurred. From these inferences, it would have been reasonable for a juror to conclude that Sullivan was part of a conspiracy to kill Gorey and Janda. We conclude, therefore, that there was sufficient evidence to support Sullivan's conviction, and we affirm the district court's decision to deny habeas relief on that basis.
V.
A.
23
Noting that the federal courts are traditionally bound by state court factfindings on habeas review, the Commonwealth contends that on remand, it was improper for the district court to order an evidentiary hearing on the issue of conflict of interest. We disagree.
24
Federal courts, in habeas proceedings, must accord a presumption of correctness to state court factfindings. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). That presumption is inoperative, however, if the merits of the factual dispute were not resolved in the state hearing. Townsend v. Sain, 372 U.S. at 293, 313, 83 S.Ct. at 745, 757, 9 L.Ed.2d 770 (1963); 28 U.S.C. Sec. 2254(d). In such circumstances, the federal court must grant an evidentiary hearing to a habeas applicant. Id. Here, because the state hearing was conducted under a misapprehension of the controlling legal precepts, the findings made were insufficient to ultimately resolve the conflict of interest question.
25
To prove a conflict of interest violative of the sixth amendment, a claimant must prove (1) multiple representation that (2) created an actual conflict of interest that (3) adversely affected the lawyer's performance. Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718. This test, however, was announced subsequent to the Pennsylvania Supreme Court's decision. That court, therefore, never reached the heart of the conflict of interest inquiry. It simply rejected Sullivan's conflict of interest claim by concluding that there was no multiple representation. It supported its conclusion by finding that DiBona made all the decisions relevant to the defense and by crediting DiBona's statements that he had only Sullivan's interests at heart when representing him. The court's determination that no multiple representation existed was then rejected both by this court and the United States Supreme Court.
26
Because the Pennsylvania Supreme Court determined that there was no multiple representation, we conclude that the state court record is devoid of factfinding on the issue of whether an actual conflict of interest adversely affected counsel's performance. Although the Commonwealth argues that we should be bound by the court's credibility determination that DiBona had no conflict of interest, we conclude that because DiBona and Peruto have been deemed counsel to both Sullivan and his co-defendants, the state court factfinding, contaminated by legal error as it is, is incomplete. "Under such circumstances, the district court [could not] ascertain whether the state court found the law or the facts adversely to the petitioner's contentions." Townsend, 372 U.S. at 314, 83 S.Ct. at 757. Because an actual conflict of interest affecting the attorneys' performance could arise from Peruto's representation alone, and because the state court did not address this issue, we conclude that an evidentiary hearing was necessary to develop the facts about counsel's role in the representation of Sullivan and to provide Sullivan a full and fair hearing on the issue of actual conflict of interest.
B.
27
The Commonwealth next contends that it was improper for the district court to delegate the conduct of that hearing to a magistrate. It argues that such delegation violates 28 U.S.C. Sec. 636(b)(1)4 and article III of the Constitution. It then contends that, even assuming the delegation was proper, the district court violated 28 U.S.C. Sec. 636(b)(1) by adopting the magistrate's findings without making a de novo review of the record. We reject each of these contentions.
28
Section 636(b)(1)(B), as set out in the margin, allows a judge to designate a magistrate to conduct evidentiary hearings on "applications for posttrial relief made by individuals convicted of criminal offenses." The Commonwealth maintains that a habeas petition does not come within this statutory language. We disagree, noting that Sec. 636(b)(1)(B) was specifically adopted as part of the 1976 amendments to the Magistrates Act for the purpose of allowing magistrates to conduct evidentiary hearings in federal habeas cases. United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). Further, it is well settled that allowing magistrates to conduct evidentiary hearings under Sec. 636(b)(1)(B), does not violate article III of the Constitution. Id. at 681-84, 100 S.Ct. at 2415-16. Moreover, we find that the district court fulfilled its duty to make a de novo determination of those portions of the magistrate's findings and recommendations to which objection was made pursuant to 28 U.S.C. Sec. 636(b)(1)(C). The district court reviewed the entire record, including the trial transcript, the post-conviction hearing transcript, all briefs and memoranda submitted by counsel, and all prior state and federal court opinions. It then listened to oral argument. Finally, it considered each of the parties' objections to the magistrate's report and addressed them in its opinion. See United States ex rel. Sullivan v. Cuyler, 553 F.Supp. at 1238-43.
C.
29
Finally, the Commonwealth contends that the district court erred in finding that the multiple representation of Sullivan and Carchidi rose to the level of an actual conflict of interest, violative of petitioner's sixth amendment rights. We disagree.
30
As we have already established, there is a dual inquiry in multiple representation cases. To prove ineffective assistance of counsel violative of the sixth amendment, the claimant must establish: (1) an actual conflict of interest that (2) adversely affected counsel's performance. Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718; United States v. Laura, 667 F.2d 365, 370 (3d Cir.1981). Actual conflict of interest is evidenced if, during the course of the representation, the defendants' interests diverge with respect to a material factual or legal issue or to a course of action. See Turnquest v. Wainwright, 651 F.2d 331, 333 (5th Cir.1981). This conflict must cause some lapse in representation contrary to the defendant's interests but such lapse need not rise to the level of actual prejudice. Cuyler v. Sullivan, 446 U.S. at 349-50, 100 S.Ct. at 1718-19; Bailey v. Redman, 657 F.2d 21, 23, 24 (3d Cir.1981) (per curiam), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982).
31
Sullivan presents several instances in which he alleges that an actual conflict of interest arose, to-wit: (1) defense counsel's failure to call witnesses outside the union hall when the shooting occurred; (2) their failure to call Hession--the union treasurer--to impeach McGrath by corroborating Sullivan's reasons for being in the union hall; (3) their decision to advise Sullivan not to testify on his own behalf; and (4) their failure to call Carchidi to testify. The district court found the first three of these contentions meritless, and we agree. The testimony of DiBona and Peruto at the post-conviction hearing shows that their tactical decisions in each of those instances were designed to capitalize on a weak prosecution case and were not premised in any way on a consideration of the co-defendants. Moreover, we need not dwell on these three alleged instances of conflict of interest because the strongest case of conflict rests on petitioner's fourth contention. It was on this contention--defense counsel's failure to call Carchidi to testify--that the district court based its finding of an actual conflict of interest that adversely affected counsel's performance. We must accept that finding unless it was clearly erroneous. Krasnov v. Dinan, 465 F.2d 1298 (3d Cir.1972).
32
During the course of the trial, and over a defense hearsay objection, the trial judge permitted the Commonwealth's witness, McGrath, to testify that after hearing noises like firecrackers, co-defendant Carchidi said to him, not in the presence of Sullivan, "Get out of the building and don't say nothing." In post-conviction proceedings in 1974 and again in the district court in 1982, Carchidi said he had been willing to testify that McGrath lied at Sullivan's trial, but that he was never called. He said his remark to McGrath was simply, "Let's get the hell out of here"--a statement with entirely different connotations than the remark attributed to Carchidi by McGrath.
33
The importance of the words attributed to Carchidi cannot be underestimated. They form the link to an alleged conspiracy with Sullivan. They were quoted in the district attorney's opening and closing speeches as well as the trial judge's instructions to the jury. And they found their way into Commonwealth briefs and the opinions of state and federal courts. These words were, without doubt, prejudicial to Sullivan. Yet, defense counsel decided not to use Carchidi's testimony, notwithstanding Carchidi's willingness to take the stand. The district court determined that decision resulted from an actual conflict of interest. Testimony by Peruto on cross-examination, credited by both the magistrate and the district court, supports this determination. He was asked:
34
Sir, you're not telling this court, are you, that if you had just represented Gregory Carchidi at the time of Sullivan's trial, you would have advised Carchidi to testify for Sullivan; are you?
35
A. That if I were only representing--
36
Q. Only representing Gregory Carchidi, who was awaiting trial for these 2 murders at the time of Sullivan's trial, isn't it a fact you would have urged him not to testify for Sullivan?
37
A. Yes, for the identical reasons that I didn't put it in Sullivan's case. But if I were representing Sullivan without Carchidi, I would have wanted that testimony of Carchidi.
38
App. Vol. VI, E-2, at 37.
39
We conclude, therefore, that, based on the record, the district court's determination that there was actual conflict of interest is not clearly erroneous. The record establishes that counsel's duty of loyalty to Sullivan to consider the sufficiency of the evidence presented and the availability of exculpatory evidence before deciding to rest his defense conflicted with their duty of loyalty to Carchidi to protect him against self-incrimination. In fact, it indicates that the conflict could not be avoided. As Peruto aptly stated with regard to the representation of Carchidi:
40
Carchidi took the position of, hey, don't hurt me. If it's going to help John, yes, I'm willing to help John; but not if it's going to hurt me. So on the one hand I have to listen to John Sullivan on the other hand I have to listen to Carchidi.
41
App. Vol. VI, E-2, at 21-22.
42
We further conclude that the record supports the district court's determination that the conflict adversely affected the attorneys' performance. By choosing to rest the defense in consideration of the possibility of the incrimination of Carchidi, it is clear that the attorneys failed to put forth their best case for Sullivan. There is no question that their performance was less than it would have been had they not been representing Carchidi as well.
43
In so concluding, we reject the Commonwealth's argument that there was no adverse effect because had Carchidi been represented by independent counsel, he would have been advised to invoke, and probably would have invoked, the fifth amendment if called as a witness. This argument seeks to require Sullivan to demonstrate prejudice. But, as we noted earlier, a defendant need not demonstrate actual prejudice to make out a violation of his sixth amendment rights where he has already established an actual conflict of interest adversely affecting counsel's performance. Cuyler v. Sullivan, 446 U.S. at 349-50, 100 S.Ct. at 1718-19. Here, it was sufficient for Sullivan to show that defense counsel consciously rejected calling Carchidi as a witness in the Sullivan trial to present Carchidi's case in the best light at his subsequent trial. We conclude, therefore, that the district court did not err in these crucial determinations.
VI.
44
The judgment of the district court granting a writ of habeas corpus specifically conditioned in its order will be affirmed.
SUR PETITION FOR REHEARING
45
The petition for rehearing filed by Appellant Cuyler, et al., in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
46
Judge GARTH would grant the petition for rehearing.
47
STATEMENT OF JUDGE ADAMS SUR PETITION FOR REHEARING
48
This case comes to us on remand from the Supreme Court. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The Court vacated the judgment in United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir.1979), which had directed that John Sullivan be discharged from custody unless the state retried him in a reasonable time.
49
After his conviction for participating in two brutal murders, Sullivan complained that he had been denied effective assistance of counsel because his attorney's decision not to call a witness was tainted by conflict of interest. A panel of this Court granted relief on the ground that concurrent representation of several persons who had been charged with the murder enmeshed Sullivan's counsel in a possible conflict. The Supreme Court held that the mere possibility of conflict was insufficient to nullify a criminal conviction; rather, to demonstrate a violation of Sixth Amendment rights, a defendant must show that an actual conflict of interest adversely affected his lawyer's performance. 446 U.S. at 350, 100 S.Ct. at 1719. The Supreme Court remanded the case so that Sullivan's claim could be adjudicated under the proper legal standard.
50
On remand, the panel concludes that a writ of habeas corpus should issue because a conflict of interest did adversely affect his counsel's performance. More specifically, the panel finds adverse impact on Sullivan's representation in the role an assistant counsel played in the decision not to call as a witness Gregory Carchidi, who had also been indicted for the same crime of which Sullivan stood accused. The panel reaches this conclusion as to adverse impact in spite of a finding, accepted by the Pennsylvania Supreme Court, that Sullivan's chief counsel decided not to call Carchidi to avoid the possibility that the prosecution might extract evidence incriminating Sullivan through cross-examination of Carchidi.1
51
The decision announced by the panel represents, in my view, a questionable and troubling erosion of the presumption of correctness that federal courts must accord the factual determinations of state courts in reviewing habeas petitions. 28 U.S.C. Sec. 2254(d); Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1980). In addition, the panel's decision would appear to threaten the important principle of finality in criminal convictions obtained after full review by state courts. Finally, the rule governing multiple representation of criminal defendants, at least as applied in this case, may entail serious practical difficulties for the administration of criminal justice.
52
Sullivan's conviction has been reviewed twice in the several tiers comprising the state criminal system in which his case was originally heard. His trial has also been examined by a federal magistrate and a federal district judge. A panel of this Court has twice scrutinized the procedures through which Sullivan's guilt has been established, and the Supreme Court of the United States has extensively reviewed the proceedings. Now, sixteen years after the crime, Sullivan will receive a new trial on the basis of an objection that was raised for the first time many years after the original trial and had not been made an issue on direct appeal.
53
The burden of demonstrating that an error at trial will support a collateral attack on the constitutional validity of a state court judgment is "even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). We are entitled to presume that Sullivan stands "fairly and finally convicted," since he has exhausted his state appeal and has had "a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). The standard of review under 28 U.S.C. Sec. 2254 is strict, not because state criminal convictions are subject to less scrutiny than federal convictions, but because such collateral review involves questions of comity and threatens the finality of legally obtained judgments.
54
In our federal system, the states bear the primary responsibility for defining and enforcing the criminal law. Federal intrusion into state criminal trials fairly conducted and reviewed can threaten a state's legitimate right to punish those who commit serious crimes and frustrate its good-faith attempt to preserve constitutional rights through a structured system of appeals. See Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982). Federal review of state criminal proceedings is important to our system of guaranteed rights, but that review must remain subject to standards designed to maintain the vitality of the court systems whose decisions are questioned. The core of those decisions is the finality of judgments rendered through procedures that are fundamentally fair. While a writ of habeas corpus technically entitles the petitioner only to a retrial, in practice it can mean complete freedom from prosecution. With the lapse of time--here, more than sixteen years after a double slaying--witnesses vanish or their memories fade; sometimes, as in the case at bar, key participants in the orginal trial will have died. As a result of the panel's decision, many prisoners may now be able to file petitions for habeas, claiming that, although their convictions became final many years ago, their legal representation at trial may have been flawed by a conflict of interest. It may be next to impossible to counter such allegations at such a late date.
55
For many years it had been the accepted practice for a single attorney to represent several defendants at a criminal trial. Although I applaud the attempt to guard against the possible dangers inherent in multiple representation, I believe we must also recognize that the law now governing such representation is quite different from what it was in the past. See Hyman, Joint Representation of Multiple Defendants in a Criminal Trial: The Court's Headache, 5 Hofstra L.Rev. 315, 318-20 (1977). In brief, the conflict rule, as applied by the panel in this case, brings to the fore the problem of retroactive application of a new rule. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1965); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1964). The subsequent discovery of a constitutional defect not legally cognizable at the time of trial does not necessarily render the original trial fundamentally unfair. See generally Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1164, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting).
56
Finally, I have considerable doubt about several factual conclusions reached by the panel. I am much less certain, for instance, that Sullivan was adversely affected by the decision not to call Carchidi as a witness.2 Indeed, there is little hard evidence to suggest that Carchidi would have testified. In any case, I believe that we are bound, absent unusual circumstances, to accept the findings of the Pennsylvania Supreme Court on this and several other points.3 See Sumner, supra, 449 U.S. at 544-52, 101 S.Ct. at 767-71. I feel constrained to vote for rehearing because of fundamental questions of comity and finality that the panel has apparently not addressed in reaching its judgment. I also believe that the rule governing multiple representation of criminal defendants, as applied in this case, requires consideration of the retroactivity of newly evolving constitutional concepts.
57
Judge GARTH also votes for rehearing and joins in this statement.
1
For a complete recital of these events, see the state court's discussion in Commonwealth v. Sullivan, 472 Pa. 129, 147-49, 371 A.2d 468, 477 (1977)
2
Because we affirm the district court's conditional grant of Sullivan's request for habeas relief on other grounds, we will not reach the issue of whether the admission into evidence of the color slides violated his due process rights
3
This inquiry is less rigorous than that conducted under state law. It does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt," Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966) (emphasis added)), but only to consider whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," id. at 319, 99 S.Ct. at 2789
4
Section 636(b)(1) provides in relevant part:
(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of ... applications for posttrial relief made by individuals convicted of criminal offenses....
(C) ... A judge of the court shall make a de novo determination of those portions of the [magistrate's] report or specified proposed findings or recommendations to which objection is made....
28 U.S.C. Sec. 636(b)(1)(B), (C).
1
See Commonwealth v. Sullivan, 472 Pa. 129, 161-62, 371 A.2d 468, 483-84 (1977), where the Pennsylvania Supreme Court declared:
[Assistant counsel] Peruto testified that it was Mr. (now Judge) DiBona who served as chief counsel for [Sullivan] during trial and made all decisions relevant to Sullivan's defense while he, Peruto, was merely assisting.... This conclusion is supported by Judge DiBona's statements that his stewardship was in no way affected by the consideration of the co-defendant's cases but was solely a product of what he considered to be the best course in his representation of Sullivan....
In the instant case, Judge DiBona believed that there was insufficient evidence upon which to convict Sullivan. He therefore refrained from calling any defense witness to avoid the possibility of exposing them to cross-examination through which the prosecution might have extracted those elements necessary to complete their proof.
Since it seems reasonable to assume that any competent lawyer would have advised Carchidi to protect himself by not testifying at Sullivan's trial, there is a serious question whether the panel has followed the Supreme Court's mandate that a writ of habeas corpus issue in cases of multiple representation only when adverse impact has actually been shown. Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718. It is not without significance that even at his own trial, Carchidi declined to testify.
2
See supra note 1
3
Although I do not address in this statement the arguments presented by the Commonwealth in its petition for rehearing, that omission should not be read as a conclusion that these arguments are not worthy of review in banc
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80 F.3d 1406
68 Empl. Prac. Dec. P 44,040, 96 Cal. DailyOp. Serv. 2533,96 Daily Journal D.A.R. 4201,96 Daily Journal D.A.R. 4325Herman E. SCHNIDRIG, Plaintiff-Appellant,v.COLUMBIA MACHINE, INC., a Washington corporation, Defendant-Appellee.
No. 93-35770.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 12, 1995.Submission Vacated Jan. 23, 1995.Resubmitted April 4, 1996.Decided April 11, 1996.
Glenn N. Solomon, Portland, Oregon, for plaintiff-appellant.
John R. Potter, Heurlin & Potter, P.S., Lee A. Knottnerus, Horenstein & Duggan, Vancouver, Washington, for defendant-appellee.
Joseph Posner, Encino, California, for amicus curiae National Employment Lawyers Association.
Robert K. Udziela, Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, OR, for amicus curiae Oregon Trial Lawyers Ass'n.
Robert J. Gregory, E.E.O.C., Washington, DC, amicus curiae.
Douglas S. McDowell, Ann Elizabeth Reesman, McGuiness & Williams, Washington, DC, for amicus curiae Equal Employment Advisory Council.
Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, District Judge, Presiding.
Before: PREGERSON and TROTT, Circuit Judges, and FITZGERALD,* District Judge.
OPINION
TROTT, Circuit Judge:
1
Herman Schnidrig appeals the district court's grant of summary judgment in favor of Columbia Machine, Inc. ("Columbia") in Schnidrig's Age Discrimination in Employment Act ("ADEA") action alleging Columbia improperly denied him a promotion because of his age and constructively discharged him. We review the district court's grant of summary judgment de novo, Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994), and reverse.
2
* FACTS AND PROCEDURAL HISTORY
3
Columbia is a closely held Washington Corporation owned by the Neth family. Fred Neth, Sr., is the majority shareholder, chairman of the Board of Directors, and chief executive officer of Columbia. The Board consisted of six directors: Fred Neth, Sr.; three of his children, Fred Neth Jr., Dorothy Osadchuk, and one other daughter; Bill Wells, a long time employee; and Joe Barclay, president of the Cascade Corporation.
4
Schnidrig, who was born in 1930, began working for Columbia as a production manager in 1980. In 1981, he was promoted to vice-president of manufacturing. In February of 1991, the president of the company, Tom Neth, resigned under pressure. Schnidrig was asked to take over the responsibilities of Tom Neth and run the company as general manager/vice-president of operations while the Board searched for a new president.
5
Schnidrig alleges, and we accept as true for purposes of summary judgment, that as early as June of 1991, Bill Wells told Schnidrig that during a Board of Directors meeting, Joe Barclay voiced the opinion that Columbia needed a president in the 45-50 year old range and that other directors agreed. In addition, the affidavit of Robert Showman, the manager of cost accounting, states that in the Fall of 1991, Bill Wells told him the Board was not considering Schnidrig because they wanted someone in his or her mid to late forties. Schnidrig also presented the shorthand notes of the minutes of a Board meeting held on February 25, 1992. The notes indicate during discussion regarding the preparation of materials to be sent to the executive search firm, Joe Barclay stated "they should send a copy of job description, maximum compensation level, only perk, company car, age 45-50 years, and past experience with long-term potential." Bill Wells omitted the reference to an age requirement from the final draft of the minutes.
6
On February 12, 1992, Schnidrig sent a memo to Fred Neth, Sr. indicating he was interested in the president's position. Schnidrig alleges that on February 19, Fred Neth, Sr. told him Joe Barclay wanted a younger man for the job and that his daughters were leaning that way as well. Schnidrig also alleges that on February 27, Fred Neth, Sr. admitted the Board discussed wanting somebody younger as the new president.
7
In March of 1992, the Board hired Ronald Goerss of the recruiting firm Smith, Goerss, & Ferneborg, to conduct a nationwide search for a new president and to present candidates for the position to the Board. The Board agreed the president would be selected from the candidates submitted by Goerss. The Board gave Goerss a list of six minimum qualification requirements for the position. The list included four general requirements: 1) strong work ethic; 2) warm, friendly personality; 3) effective communication skills; and 4) team leadership. In addition, the list contained two specific requirements:
8
(1) a minimum of 5 years broad general management experience and proven track record with a medium sized company or a division of a larger firm engaged in the design, manufacture and sale of industrial machinery and equipment; and
9
(2) strong operations (manufacturing) background with a thorough working knowledge of accounting and financial reporting.
10
Goerss indicated he relied solely on the criteria given him by the Board and that he was never instructed to, nor did he consider age in making his decisions.
11
Schnidrig alleges that on May 8, he again asked Fred Neth, Sr. why he could not be president of Columbia and was again told the Board was looking for somebody younger.
12
In June of 1992, Goerss completed his search, including interviews of all three Columbia vice-presidents, and submitted a list of five candidates to the Board. All five candidates were from outside the company. The Board interviewed two of the five candidates and, in July, entered into negotiations with Gerald O'Meara to be the president of Columbia.
13
Also in July, Schnidrig again applied for the position of president and alleges he was again told the Board was looking for somebody younger in the 45-50 year old range. Thereafter, Schnidrig filed his first complaint with the EEOC. Schnidrig claims that from this point on his work environment deteriorated. Particularly, Schnidrig complains Robin Popple, another Columbia vice-president, was given a raise so that he earned more than Schnidrig; he was excluded from a lunch meeting with the officers of First Interstate Bank; company executives and other personnel were instructed not to talk to Schnidrig about various matters including corporate finances; and he was moved out of his office and given a much smaller office.
14
On October 8, 1992, O'Meara accepted Columbia's offer and agreed to begin work on November 2, 1992. Schnidrig resigned on October 27, 1992.
15
Schnidrig filed suit against Columbia claiming that he was denied the promotion to president because of his age, and that he was constructively discharged in retaliation for filing a complaint with the EEOC. The district court granted summary judgment in favor of Columbia on all claims.
II
AGE DISCRIMINATION
16
The allocation of burdens and order of presentation of proof for claims of discrimination arising under the ADEA follow three steps:
17
[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.
18
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1986)).
19
"The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), or by more direct evidence of discriminatory intent." Wallis, 26 F.3d at 889 (citing Lowe, 775 F.2d at 1009). Furthermore, "[w]hen a plaintiff does not rely exclusively on the presumption but seeks to establish a prima facie case through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a factfinder." Lowe, 775 F.2d at 1009.
20
In this case, Schnidrig clearly established a prima facie case of age discrimination. Schnidrig did not attempt to establish the factors giving rise to a presumption of discrimination. Rather, Schnidrig offered direct evidence of discriminatory motives in the form of statements made by directors and notes taken during Board meetings.
21
Columbia argues that whether Schnidrig chooses to establish a prima facie case through a presumption or through direct evidence of discrimination, he must still show that he is qualified for the job. This argument is premature. Schnidrig established a prima facie case that he was treated differently on the basis of his age. Therefore, Schnidrig's qualifications are irrelevant to the existence of the prima facie case of discrimination. The burden shifts to Columbia to articulate nondiscriminatory motives regardless of Schnidrig's qualifications.
22
Columbia offered three nondiscriminatory reasons why it chose not to promote Schnidrig: 1) Schnidrig was eliminated as a candidate for the position by Goerss who did not include Schnidrig's name in the list of qualified candidates which he presented to the Board, therefore, it was not the Board's decision not to promote Schnidrig; 2) Schnidrig was not qualified for the job; and, 3) O'Meara was more qualified for the job than was Schnidrig.
23
The district court found that Columbia produced evidence to support its claim that O'Meara met the qualifications of the job profile and that Schnidrig did not. This was sufficient to shift the burden back to Schnidrig to show that Columbia's reasons for not promoting him were pretextual. Thus, the issue before this Court is whether Schnidrig produced sufficient evidence to raise a genuine issue of fact as to whether Columbia's proffered reasons were pretextual. "If a rational trier of fact could, on all the evidence, find that the employer's action was taken for impermissibly discriminatory reasons, summary judgment for the defense is inappropriate." Wallis, 26 F.3d at 889.
24
Schnidrig presented the following allegations and evidence to show discriminatory intent by Columbia: 1) Allegation that Bill Wells told Schnidrig that during a Board meeting in June of 1991, Joe Barclay expressed wanting a president in the 45-50 year old range; 2) Affidavit of Robert Showman, manager of cost accounting, stating that following a Board meeting in the fall of 1991, Bill Wells told Showman the Board was not seriously considering Schnidrig for president because they wanted someone in his or her mid to late forties; 3) Allegation that on February 19, 1992, Fred Neth, Sr. told Schnidrig some of the directors wanted a younger man as president; 4) Shorthand notes of the minutes of the Board meeting on February 25, 1992, indicating Joe Barclay that the requirement of being 45-50 years old be included in the job profile for president; 5) Allegation that on February 27, 1992, Fred Neth, Sr. admitted the Board discussed wanting somebody younger as the new president; 6) Allegation that on May 8, 1992, Fred Neth, Sr. again told Schnidrig the Board wanted somebody younger; and 7) Allegation that in July of 1992, Fred Neth, Sr. again told Schnidrig the Board was looking for somebody younger to be president.
25
This Court has set a high standard for the granting of summary judgment in employment discrimination cases. Most recently, we explained that " '[w]e require very little evidence to survive summary judgment' in a discrimination case, 'because the ultimate question is one that can only be resolved through a "searching inquiry"--one that is most appropriately conducted by the factfinder, upon a full record.' " Lam v. University of Hawaii, 40 F.3d 1551, 1563 (9th Cir.1994) (quoting Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991)).
26
"[W]hen a plaintiff has established a prima facie inference of disparate treatment through direct or circumstantial evidence of discriminatory intent, he will necessarily have raised a genuine issue of material fact with respect to the legitimacy or bona fides of the employer's articulated reason for its employment decision." ... When [the] evidence, direct or circumstantial, consists of more than the McDonnell Douglas presumption, a factual question will almost always exist with respect to any claim of a nondiscriminatory reason. The existence of this question of material fact will ordinarily preclude the granting of summary judgment.
27
Sischo-Nownejad, 934 F.2d at 1111 (quoting Lowe, 775 F.2d at 1009). Cf. Wallis, 26 F.3d at 890 ("[W]hen evidence to refute defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption."); FDIC v. Henderson, 940 F.2d 465, 473 n. 16 (9th Cir.1991) ("However, Lowe was subsequently amended to indicate that the Court did not mean to 'prevent the summary disposition of meritless suits but simply ensure that when a material fact exists a civil rights litigant will not be denied a trial on the merits.' ").
28
The district court, in granting summary judgment, emphasized that Schnidrig was eliminated as a candidate for president by Ronald Goerss of the executive search firm hired by Columbia and not by the Board. The district court found there was no evidence Goerss was ever told to consider age and that he never considered age in selecting candidates for the Board's consideration. The district court concluded the comments made by Fred Neth, Sr., were attenuated from the decision-making process, and therefore, were merely "stray remarks" with no connection to the employment decision.
29
The Ninth Circuit authority relied on by the district court is distinguishable. In Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990), an executive for Farmers made one comment that he chose one candidate over another because he was " 'a bright, intelligent, knowledgable young man.' " Id. at 1438. Similarly, in Nesbit v. Pepsico, Inc. 994 F.2d 703 (9th Cir.1993), a supervisor commented during a meeting that " '[w]e don't necessarily like grey hair.' " Id. at 705. The court found this "comment was uttered in an ambivalent manner and was not tied directly to Nesbitt's termination." Id.
30
Contrasting, in the instant case, Schnidrig alleges that on three separate occasions, when he asked to be considered for president, he was told the Board wanted somebody younger for the job. Significantly, at least one of these instances occurred after Goerss had submitted his list of candidates to the Board. Furthermore, Schnidrig did more than offer mere allegations of discriminatory intent; he produced evidence in the form of shorthand notes taken at the February 25, 1992, Board meeting and the affidavit of a coworker.
31
Although it is possible that Columbia sufficiently insulated the decision-making process from the discriminatory remarks of the directors, in light of the reluctance of this Circuit to allow summary judgment where there is direct or circumstantial evidence of discriminatory intent, the district court was premature in resolving this issue on summary judgment. Whether Columbia relied on impermissible factors in refusing to promote Schnidrig is a question appropriately answered by a trier of fact.
III
CONSTRUCTIVE DISCHARGE
32
Schnidrig also contends Columbia constructively discharged him by making working conditions so intolerable that he felt forced to resign. Specifically, Schnidrig submitted six factors which, taken together, were designed to humiliate him and force him to resign: 1) He was replaced as head of the company by a man fifteen years younger than him; 2) Columbia did not give him a new position; 3) Another vice-president was given a pay raise so that he was earning more than Schnidrig; 4) He was forced to move out of his office and into a much smaller office; 5) He was excluded from a lunch meeting with officers from First Interstate Bank; and 6) Other executives were told not to speak to him about financial or other matters.
33
To establish a claim for constructive discharge, Schnidrig "must show there are triable issues of fact as to whether 'a reasonable person in [his] position would have felt that [he] was forced to quit because of intolerable and discriminatory working conditions.' " Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994) (quoting Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir.1989)).
34
Whether working conditions were so intolerable and discriminatory as to justify a reasonable employee's decision to resign is normally a factual question for the jury. In general, however, a single isolated incident is insufficient as a matter of law to support a finding of constructive discharge. Thus, a plaintiff alleging a constructive discharge must show some aggravating factors, such as a continuous pattern of discriminatory treatment.
35
Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir.1990) (internal quotations and citations omitted), cert. denied, 502 U.S. 815, 112 S.Ct. 66, 116 L.Ed.2d 41 (1991).
36
Schnidrig was not demoted, did not receive a cut in pay, was not encouraged to resign or retire, and was not disciplined. Accepting all of Schnidrig's allegations as true, his working conditions were not so intolerable and discriminatory that a reasonable person would feel forced to resign. Additionally, Columbia offered legitimate nondiscriminatory reasons for each of the actions complained of by Schnidrig.
37
The district court correctly found no evidence to suggest either that any of these actions were motivated to force Schnidrig to resign or that they made Schnidrig's working conditions intolerable. Therefore, the district court's grant of summary judgment for Columbia on the claim of wrongful constructive discharge is affirmed.
IV
AFTER-ACQUIRED EVIDENCE
38
Columbia argues that even if this Court should find a genuine issue of material fact as to whether Schnidrig was denied the promotion for improper reasons, summary judgment is still appropriate because after Schnidrig resigned, Columbia discovered a legitimate nondiscriminatory reason for which Schnidrig would have been discharged. Columbia claims it later learned Schnidrig copied and removed confidential and personnel documents without authorization in violation of the terms of Columbia's employee handbook.
39
The Supreme Court recently held that the use of after-acquired evidence of wrongdoing by an employee that would have resulted in their termination as a bar to all relief for an employer's earlier act of discrimination is inconsistent with the purpose of the ADEA. McKennon v. Nashville Banner Publishing Co., --- U.S. ----, ----, 115 S.Ct. 879, 884, 130 L.Ed.2d 852 (1995); see also O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th Cir.1996) ("[I]f an employer discharges an employee for a discriminatory reason, later-discovered evidence that the employee could have been discharged for a legitimate reason does not immunize the employer from liability."). Therefore, although Columbia's discovery of after-acquired evidence may bear upon the specific remedy to be ordered, it does not warrant the granting of summary judgment.
V
CONCLUSION
40
For the foregoing reasons, the district court's grant of summary judgment in favor of Columbia on Schnidrig's claim of constructive discharge is affirmed. We reverse the district court's grant of summary judgment in favor of Columbia on Schnidrig's claim of age discrimination and remand that issue to the district court for a trial on the merits.
41
AFFIRMED in part; REVERSED and REMANDED in part.
42
Each party shall bear its own costs of this appeal.
*
The Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation
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976 F.2d 990
Joe B. SHANER and Cynthia K. Shaner, Plaintiffs-Appellants,v.UNITED STATES of America, et al., Defendants-Appellees.
No. 91-4173.
United States Court of Appeals,Sixth Circuit.
Argued June 12, 1992.Decided Sept. 16, 1992.Rehearing and Rehearing En Banc Denied Nov. 4, 1992.
Edward J. Sebold (argued) and Edward J. Sebold (briefed), Jenner & Block, Chicago, Ill., for plaintiffs-appellants.
Charles Hosterman (argued and briefed), U.S. Dist. Court for the State of Ohio, Columbus, Ohio, for defendants-appellees.
Before: KEITH and SUHRHEINRICH, Circuit Judges; and CONTIE, Senior Circuit Judge.
* SUHRHEINRICH, Circuit Judge.
1
In 1981, a natural disaster struck Ohio. As a result, the entire state was designated a disaster relief area. The Shaners, who grew corn and beans at their Fairfield County, Ohio, farm, were among the Ohio farmers who suffered crop production losses in excess of thirty percent and thereby qualified for emergency loan relief.
2
Prior to the disaster, the Shaners had incurred substantial indebtedness to Cambridge Production Credit Association ("PCA"). The crop losses prevented the Shaners from paying the 1981 installment on this debt. PCA demanded payment in full or a liquidation sale.
3
In January 1982, the Shaners applied to FmHA for an emergency loan. Within two weeks the application was denied for insufficient cash flow and inability to refinance existing loans. The Shaners persisted in their attempts to secure an FmHA loan. On May 6, they met with Douglas Dietrich, FmHA supervisor for Fairfield County.
4
Subsequent to the May 6 meeting, Dietrich issued a certificate of approval. The lone requirement listed on the certificate was "[s]ecurity for this loan is a [first] lien on 1982 crops." Dietrich also sent the Shaners a letter announcing the approval, "subject to the availability of loan funds." However, Dietrich was concerned about FmHA's position vis-a-vis PCA. In particular, he was concerned that PCA might encumber the Shaners equipment so as to prevent them from planting a 1982 crop and that, even if a 1982 crop were planted, PCA's claim to it would be senior to FmHA's.
5
Seeking to avoid these risks, Dietrich notified the Shaners in July 1982 of his intention to cancel the loans. The reasons he gave were the failure to obtain for FmHA a first lien on the 1982 crops and the failure to obtain a non-disturbance agreement from PCA.1 The Shaners filed for bankruptcy in August 1982, and Dietrich canceled the loan approvals effective in September.
6
Upon cancellation, the Shaners appealed Dietrich's determination. Their appeal was denied on the grounds of their failure to secure a non-disturbance agreement with PCA. On a subsequent appeal, FmHA's acting state director held for the Shaners, ruling that, because the Uniform Commercial Code would have given FmHA priority over PCA with respect to the 1982 crops, a first lien was unnecessary. On May 25, 1983, the acting state director reinstated the Shaners' application. Pursuing the application further, however, was not possible, as the Shaners were now in bankruptcy and the loss of land and equipment to their creditors disabled them from generating sufficient cash flow from their 1983 crops to qualify for a loan.
7
The parties now agree that Dietrich erred in requiring a first lien. The Shaners claim that this error constitutes negligence entitling them to recovery under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). They also claim that they were unconstitutionally deprived of various property rights. The District Court rejected these arguments and granted summary judgment against the Shaners. We now affirm.
II
8
The Shaners bring this claim under the Federal Tort Claims Act, which authorizes negligence suits against the federal government "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." The Ohio Supreme Court has recently reviewed the line of cases dealing with the liability of lenders to borrowers in Blon v. Bank One, 35 Ohio St.3d 98, 519 N.E.2d 363 (1988). Under the framework established by the Blon court, the borrower and lender stand at arm's length while negotiating the terms and conditions of the loan and no fiduciary duty exists at this stage of the relationship. Once, however, the negotiations are complete and the relationship moves into the loan processing stage, a fiduciary duty of disclosure is imposed on the lender. Id. at 102, 519 N.E.2d 363.
9
The Shaners believe that their relationship with the FmHA had blossomed into the loan processing stage. They contend that FmHA's decision to cancel their loan resulted from negligence. Specifically, the concern on which the cancellation was based, the Shaners' failure to secure a first lien for FmHA, was obviated by U.C.C. § 9-312(2), which would have given FmHA the priority it sought through the lien.2 The Shaners argue that FmHA was negligent in failing to recognize that requiring a first lien was unnecessary and in canceling the loan on this basis.3 Since FmHA committed this negligence during the loan processing stage, the argument continues, FmHA violated its fiduciary duty to the Shaners.
10
The Shaners' reading of Ohio law is overripe. None of the cases it cites creates a broad fiduciary duty or a duty to avoid negligence. They merely create a duty to disclose. Stone v. Davis, 66 Ohio St.2d 74, 78, 419 N.E.2d 1094 (bank has fiduciary duty when "broaching the subject of mortgage insurance"), cert. denied, 454 U.S. 1081, 102 S.Ct. 634, 70 L.Ed.2d 614 (1981). The duty to disclose stands as an exception to the general rule that the borrower-lender relationship is not a fiduciary one. See Umbaugh Pole Bldg. Co. v. Scott, 58 Ohio St.2d 282, 390 N.E.2d 320 (1979) (syllabus # 1). We will not expand the fiduciary duty to disclose absent a clear expression of contrary intent by the Ohio courts, particularly in light of Blon, which sought to circumscribe the scope of this duty.4
11
The Shaners argue alternatively that, if it has not already done so, the Ohio Supreme Court would impose a general fiduciary duty on FmHA, as its relationship with the Shaners is one of "special trust and confidence." Blon, 35 Ohio St.3d at 102, 519 N.E.2d 363. This argument is predicated primarily on the public purpose with which FmHA is affected. In this respect, the Shaners liken their relationship with FmHA to that of an insured with its insurer. This analogy is fallow; for even if we accept it, it would only create a duty of good faith. Such a duty would require more than mere negligence as the basis for liability. Instead, the Shaners would be required to show that FmHA acted from a "dishonest purpose, moral obliquity, conscious wrongdoing," or in "breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another." Wasserman v. Buckeye Union Casualty Co., 32 Ohio St.2d 69, 73, 290 N.E.2d 837 (1972). The record offers no hint of such motive or conduct.
12
The Shaners next contend that the Good Samaritan Doctrine imposes a duty of due care on FmHA. Although the Ohio Supreme Court has never explicitly adopted this doctrine, the Court has cited it favorably, and it appears to be the law of Ohio. See Wissel v. Ohio High School Athletic Assn., Nos. C-900397, C-900566, 1992 WL 42831, at * 9, 1992 Ohio App. LEXIS 904, at * 19 (Mar. 4, 1992) (final publication pending). As the Shaners fail to satisfy the Good Samaritan Doctrine's requirements, however, we need not resolve this question.
13
Recovery under the Good Samaritan Doctrine is limited to physical harm. Restatement (Second) of Torts § 323 (1964). The record contains no evidence of physical injury to the Shaners or their property. Therefore, summary judgment was properly granted as to the Good Samaritan claim.
III
14
The Shaners assert property rights in the FmHA emergency loan they applied for and in access to the FmHA's administrative appeal process and claim that they have been deprived of this property in violation of the Fifth Amendment. However, the Shaners do not seek to have these property rights restored.5 Instead, they seek money damages as compensation for injuries resulting from the allegedly unconstitutional deprivation. The kernel of this contention is that the deprivation caused them to lose their farm. This claim, then, is in fact a Bivens6 action. A Bivens action may be brought only against individual federal officials, not against the United States. See, e.g., Ashbrook v. Block, 917 F.2d 918, 924 (6th Cir.1990). Therefore, this claim may only be asserted against Dietrich individually.
15
Like the District Court, we do not believe that either of the asserted interests constitutes a property right. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
16
The Shaners cite Association of Orange County Deputy Sheriffs v. Gates, 716 F.2d 733 (9th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1909, 80 L.Ed.2d 458 (1984), for the proposition that they have a property interest in the FmHA emergency loan. This case actually supports the opposite conclusion. There, a California statute allowed retired deputy sheriffs to carry concealed weapons if the agency from which they retired issued them a certificate. In addition, this privilege could be denied or revoked for good cause. Several retired deputies claimed that this statute created an entitlement of which they could not be deprived without due process. This argument was rejected on the grounds that the good cause provision left no significant restriction on the agency's discretion; therefore, no entitlement was created. Id. at 734.
17
The FmHA has similarly broad discretion in determining whether to approve an application. For instance, the determination of whether an applicant has presented a viable farm plan or has offered sufficient security are left largely to the sound judgment of FmHA. See 7 U.S.C. §§ 1961(a), 1964(d). Therefore, the Shaners' interest in obtaining an emergency loan was too speculative to be considered a property right. Accord Nelson v. United States, 16 Cl.Ct. 510 (1989) (property right does not exist until loan is approved and a contractual right results); cf. Ashbrook, 917 F.2d at 924 (no property right in additional FmHA funding).
18
When the Shaners' emergency loan application was first denied in January 1982, FmHA provided them with a complete statement of their appeal rights as required under 7 C.F.R. § 1900.56. After the July 1982 rejection, the notice to the Shaners was incomplete, omitting the statements required under section 1900.56(a)(4). The Shaners claim, misguidedly, that they had a property right in this information and that it was deprived without due process.
19
It is well-established that "due process 'is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property.' " Nishiyama v. Dickson County, 814 F.2d 277, 281-82 (6th Cir.1987) (en banc) (quoting Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986)) (emphasis in original). Even if the Shaners had a property right in information regarding administrative appeals, they must show that Dietrich was grossly negligent in failing to provide the information. See id. at 282.7 But see, e.g., Collins v. City of Harker Heights, --- U.S. ----, ---- n. 10, 112 S.Ct. 1061, 1069 n. 10, 117 L.Ed.2d 261, 274 n. 10 (1992) (intimating that an even more exacting requirement, deliberate or intentional conduct, should be applied). The Shaners have failed to even allege gross negligence. Nor does the record contain any evidence that would support such an allegation. Hence, any right the Shaners did have in the administrative appeal information was not deprived in violation of the due process clause.
IV
20
For the foregoing reasons, the district court's opinion and order granting summary judgment is AFFIRMED.
1
The non-disturbance agreement would have prevented PCA interfering with the Shaners' ability to plant a 1982 crop. The cancellation notice was the first occasion on which this requirement had been committed to writing. FmHA contends that Dietrich had orally informed the Shaners of this requirement; the Shaners deny this
2
The government concedes that the Shaners' reading of this provision, codified at Ohio Rev.Code Ann. § 1309.31(B), is correct and that the first lien requirement was unnecessary
3
The question of whether FmHA's insistence on a first lien was negligent is not before us. Although we assume for the purposes of this appeal that this was negligence, the ultimate determination would rest, of course, with the fact-finder
4
FmHA raises a second defense, the Shaners' failure to obtain a non-disturbance agreement from PCA. FmHA contends that the Shaners were notified of this requirement at their May 6, 1982 meeting with Dietrich. The Shaners claim that they were not so informed until the cancellation. If it was a condition for the loan, the Shaners' failure to obtain a non-disturbance agreement was adequate grounds for the cancellation. However, Mr. Shaner's affidavit raises sufficient doubt as to whether this was a condition to require a jury determination
Similarly, FmHA asserts that Dietrich told the Shaners, again at the May 6 meeting, that they would be required to make a delinquent payment to PCA. The Shaners contend that the only condition imposed was that they obtain a first lien for FmHA. Moreover, Dietrich's notice of cancellation does not list failure to make this payment in any way, let alone as a ground for canceling the loan approvals. Resolution of this argument also lies with the trier of fact. Therefore, neither of these arguments support FmHA's position that summary judgment was appropriate.
5
Indeed, the FmHA actually restored the asserted property rights, allowing the Shaners to pursue their administrative appeals and reinstating their loan application
6
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)
7
Although Daniels and Nishiyama involved Fourteenth Amendment due process claims against state officials under 42 U.S.C. § 1983, there is no reason to regard the Fifth Amendment due process clause as having a different meaning for the purposes of a suit against a federal official. See Erwin Chemerinsky, Federal Jurisdiction § 9.1, at 452-53 (1989). Thus, the Nishiyama gross negligence requirement applies here
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209 Md. 504 (1956)
121 A.2d 698
EGGLESTON
v.
STATE (Two Appeals in One Record)
[No. 138, October Term, 1955.]
Court of Appeals of Maryland.
Decided April 6, 1956.
The cause was argued before BRUNE, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
Fred Kolodner, with whom was Leon J. Rudd on the brief, for the appellant.
Alexander Harvey, II, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Anselm Sodaro, State's Attorney for Baltimore City, and *508 J. Robert Brown, Assistant State's Attorney, on the brief, for the appellee.
HENDERSON, J., delivered the opinion of the Court.
This case involves two appeals in one record from orders of the Criminal Court of Baltimore. The appellant had been convicted in two cases of larceny by a Magistrate. On appeal by the appellant here, he was convicted in the Criminal Court and sentenced on March 8, 1955, to six months in the House of Correction in each case, the sentences to run concurrently from February 23, 1955, the date of his original arrest and conviction by the Magistrate. He was referred by the court to the Patuxent Institution for examination and diagnosis to ascertain whether he was a defective delinquent under the provisions of Code (1951), Art. 31B, sec. 6, and was admitted to Patuxent on March 14, 1955. On June 20, 1955, the Director, Dr. Harold M. Boslow, forwarded to the court a written report with findings and a letter recommending that the appellant be committed to the Institution on an indeterminate basis as a defective delinquent.
On July 21, 1955, the appellant was summoned before the court and advised of the findings and conclusion of the Director of the Patuxent Institution. On the same day, Fred Kolodner, Esq. was appointed by the court to represent the appellant in proceedings to determine whether or not he was a defective delinquent. Under the statute it was mandatory upon the court to appoint counsel within twenty days after the summons and service of a copy of the report. Mr. Kolodner requested that the hearing on the issue, originally set by the court for July 22, 1955, be postponed until a later date in order that he might prepare his defense. Here again the statute provided that counsel appointed is entitled to at least thirty days to prepare his case. The court granted the request, and by order dated July 22, 1955, directed that appellant should remain in the custody of the Patuxent Institution pending the final determination of the issue of defective delinquency. Had appellant been confined in the Maryland *509 House of Correction under the sentence of March 8, 1955, and remained there, that sentence would have expired, assuming the usual time off for good behavior, on July 23, 1955. However, the appellant was in the Patuxent Institution from March 14, 1955, until his case was disposed of except for his appearance in court on July 21, 1955.
On September 28, 1955, the appellant was "arraigned" for hearing upon the report and pleaded "not guilty", electing to be tried by the court. Counsel for the defense introduced reports of Dr. Charen, a psychologist, and Dr. Freedom, a psychiatrist, who had examined the appellant at the request of his counsel and at State expense. Both reports corroborated the findings in the report from the Institution. It was stipulated that the appellant had been convicted in the criminal courts of this State of two or more offenses punishable by imprisonment. In fact, he had had a number of previous convictions. At the conclusion of the hearing, the court found the appellant to be a defective delinquent within the meaning of Art. 31B of the Code, suspended his original sentence to the House of Correction, and committed him to Patuxent Institution for an indefinite period, subject to further order of court. The present appeals are from this order of September 28, 1955, and from the previous order of July 22, 1955.
The new law relating to defective delinquents was enacted by Ch. 476, Acts of 1951, and appears in Code (1951), Art. 31B. Sec. 11 of this Article provides that "From any court order issued under the provisions of Section 9, or of Section 10, there shall be the same right of appeal to the Court of Appeals as after any conviction of felony." Sections 9 and 10 deal with sentences after judicial determinations of defective delinquency, and with judicial determinations on petitions for review of a sentence. Neither of these sections refers to preliminary or interlocutory orders, and they do not in terms authorize an appeal from such orders. Moreover, the type of appeal is analogized to the ordinary criminal appeal. It is well settled that an appeal in a criminal case is premature until after final judgment. State v. Harman, *510 199 Md. 209, 212, and cases cited. The appeal from the order of July 22, 1955, must be dismissed. We may consider the effect of the order, however, on the appeal from the order of September 28, 1955.
The appellant contends that the court lost jurisdiction to determine the issue of defective delinquency because the original sentence expired by lapse of time on August 23, 1955, or on July 23, 1955, if time off for good behavior is allowed. Thus, it is argued that the court had no jurisdiction to try the case on September 28, 1955, and the original sentence to the House of Correction could not be extended by the order of July 22, 1955, remanding him to the Patuxent Institution pending trial.
Sec. 6 provides that on request of the State's Attorney, the Chairman of the Board of Correction, of the defendant, or of his attorney, the court may order an examination by the Institution, or the court may do so on its own initiative. The request must be by petition filed with the court stating the reasons why defective delinquency is suspected or supposed. Such examination may only be ordered if the person to be examined has been convicted and sentenced by a court of this State for a crime or offense in the following categories: a felony, a misdemeanor punishable by imprisonment in the penitentiary, a crime of violence, a sex crime of three defined types, or "two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State." Sec. 6(c) provides: "Such an examination may be requested and made at any time after the person has been convicted and sentenced for a crime or offense specified hereinabove in this section, provided that said person has been sentenced to a period of confinement in a penal institution or is then serving such a sentence. No such examination shall be ordered or made if the said person has been released from confinement for the particular crime or offense of which he was convicted."
It is clear that the court in the instant case had jurisdiction to order the examination, since the order was passed after sentence for a crime falling into one of the *511 specified categories, and before the sentence had been served. The proceeding was initiated by the petition and examination order. Sec. 6(e) provides that "The Court which last sentenced the defendant, whether or not the term of Court in which he was sentenced has expired, shall retain jurisdiction of the defendant for the purpose of any of the procedures specified in Sections 6, 7, 8, or 9 hereof." It would appear that under this sweeping language, jurisdiction, once properly obtained, would continue until the purposes to be served by the examination were accomplished, regardless of the expiration of the original sentence. It is a general rule that a court obtaining jurisdiction of the person and subject matter retains it until the case is finally disposed of. 14 Am. Jur., "Courts", § 170; Hunter v. Warden, 198 Md. 655, 656. In criminal cases the accused, unless released on bail or on his own recognizance, is necessarily held in custody until trial. The remand in the instant case was designed to accomplish the same purpose. Ordinarily credit for time spent in jail pending trial is discretionary with the court and does not go to the question of jurisdiction. Hands v. Warden, 205 Md. 642, 643.
In any event, we think the time of the original sentence did not run during the period the defendant was held for examination. Sec. 7(a) sets out in detail the scope of the examination by three experts, and calls for a determination "On the basis of all the assembled information, plus their own personal examination and study of the said person". Obviously, time is required for study and deliberation. Moreover, the person examined is entitled to an examination, at State expense, by a psychiatrist of his choice. The examiners are required to state their findings in a written report addressed to the court. "If the substance of the report is that the said person is not a defective delinquent, he shall be returned forthwith to the custody of the Department of Correction on the original criminal conviction, and he shall begin or resume his period of confinement on said conviction as if he had not been examined for possible defective delinquency." We *512 think this is a clear directive that credit shall not be allowed for the time spent in the examination. He could never "begin" serving the original sentence, if credit were given for the examination time. The same language appears in Sec. 9(a), dealing with the situation where a defendant is found not to be a defective delinquent on a trial of the issue before a court or jury.
These provisions denying credit for the time spent in the examination may be contrasted with the provisions of sections 10(a) and 13(e). Where a person confined as a defective delinquent under an indeterminate sentence is subsequently determined by the court or jury not to be a defective delinquent, on a petition for review or on recommendation by the Institutional Board of Review, it is expressly provided that he shall receive credit against his original sentence for the time served in the Institution after the first adjudication.
All of these provisions as to the time spent in the Institution before and after trial of the issue, relate to cases where the defendant is found not to be a defective delinquent. If found to be a defective delinquent, the statute merely provides that he be committed or returned to the Institution for an indeterminate period without either maximum or minimum limits. Sec. 9(b) provides in part: "In such event, the sentence for the original criminal conviction, or any unexpired portion thereof, shall be and remain suspended, and the defendant shall not longer be confined for any portion of said original sentence, except as otherwise provided herein." The exception applies if he is subsequently released, in which event he may be committed under his original sentence, with credit for the time served in the Institution. There is no intimation that he should receive credit for time spent in the Institution prior to confinement under sentence, whether for examination or pending the trial.
The fact that the Legislature has seen fit to allow credit to persons sentenced to the penal institutions under the control of the Department of Correction, for time spent in hospitals or insane asylums, under Code (1951), Art. 27, *513 secs. 788 and 799, is not controlling. These sections are not applicable here. The new Article deals exclusively with matters of credit for time spent in the Institution, which is neither a prison, a hospital nor an insane asylum, but exercises some of the functions of all three.
The appellant raises a number of constitutional objections to the sentence in the instant case. He contends that since the proceedings authorized by the new law are predicated upon previous conviction for certain specified criminal offenses, the purpose and effect is to put the accused twice in jeopardy for the same offense. It is clear that the prohibition of double jeopardy in the Fifth Amendment of the United States Constitution is not a requisite of due process under the Fourteenth. Palko v. Connecticut, 302 U.S. 319. In Maryland the double jeopardy rule is only part of the common law, which may be changed by statute. State v. Adams, 196 Md. 341, 344, and cases cited. Moreover, the appellant's argument assumes that the new law is a penal statute imposing a new penalty for an established crime or crimes. We do not so regard it.
Code (1951), Art. 31B, sec. 5, defines a "defective delinquent" as follows: "For the purposes of this Article, a defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated anti-social or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require confinement and treatment under an indeterminate sentence, subject to being released only if the intellectual deficiency and/or the emotional unbalance is so relieved as to make it reasonably safe for society to terminate the confinement and treatment."
We think the statute is sufficiently certain and definite and sets up matters that are susceptible of proof. The statutory emphasis is on confinement and treatment of these persons rather than on punishment or deterrence. The statute represents the legislative adoption of concepts *514 that have long been recommended by leading psychiatrists and penologists. See Guttmacher and Weihofen, Psychiatry and the Law, pp. 444-446. The new Act was the end result of several years of study by a commission authorized by the Legislature and appointed by the Governor, by a special advisory committee appointed by the Board of Correction, and by a committee appointed by the Legislative Council. Moreover, the Legislature appropriated funds for the construction of a new institution to deal with the problem. The new Act calls for a staff composed of professional psychiatrists, psychologists and sociologists. In character the Act is not unlike statutes providing for a civil inquiry into the sanity of a person. This character is not altered by the fact that it deals only with persons who have demonstrated criminal tendencies resulting in criminal convictions, nor by the fact that it utilizes some of the traditional methods of adjudication and review that have been developed in the criminal law. See State ex rel. Sweezer v. Green, 232 S.W.2d 897 (Mo.); Ex parte Keddy, 233 P.2d 159 (Cal. App.); People v. Chapman, 4 N.W.2d 18 (Mich.); People v. Piasecki, 52 N.W.2d 626 (Mich.).
The appellant contends that the statute violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The argument is not based on any lack of procedural due process, indeed the careful safeguards of the Act for the appointment of counsel, furnishing of reports, election of jury trial, and redetermination of the issue at suitable intervals, would seem to preclude such an attack. Cf. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, et al., 309 U.S. 270. Instead, it is contended that the length of confinement is unreasonable. It is argued that there is an unjust discrimination between persons in similar circumstances who may not have been convicted, or have been convicted of crimes the penalty for which is more limited.
It may be noted that Art. 3, sec. 60 of the Maryland Constitution authorizes the enactment of "any form of *515 the indeterminate sentence in criminal cases". Since we hold that the detention is civil in its nature, this section is not strictly applicable. But it has long been established that a state has the power to restrain the liberty of persons found dangerous to the health and safety of the people. Salinger v. Superintendent, 206 Md. 623, 629. See also People v. Niesman, 190 N.E. 668 (Ill.); People v. Chanler, 117 N.Y.S. 322, 325; Jacobson v. Massachusetts, 197 U.S. 11; Buck v. Bell, 274 U.S. 200. The length of confinement does not extend beyond the reasonable necessity for sequestration. At least twenty states and the District of Columbia have statutes similar to ours, providing for the indefinite confinement of sexual psychopaths. Such statutes have been uniformly upheld. See Note 24 A.L.R.2d 350. Our statute enlarges somewhat the class of persons considered dangerous to society because of defective delinquency as defined. But the principle is the same. The extent of detention depends primarily in each case upon medical findings as to diagnosis and prognosis, not upon a finding of the elements of a criminal offense. In re Craft, 109 A.2d 853, 855 (N.H.). The detention is not by way of punishment for a crime, but is preventive and therapeutic. We find no violation of the equal protection clause.
On the question of discrimination, we see no reason to doubt that the Legislature could constitutionally make a class of the group of persons it selected, as demonstrably dangerous to society unless cured of their criminal propensities. Whether the Legislature could have gone farther in enlarging the class is beside the point. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, et al., supra; People v. Sims, 47 N.E.2d 703 (Ill.); People v. Chapman, supra. We think the classification is a reasonable one.
Appeal from the order of July 22, 1955, dismissed, with costs. Order of September 28, 1955, affirmed, with costs.
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530 F.Supp. 904 (1981)
WILLAMETTE INDUSTRIES, INC., Plaintiff,
v.
UNITED STATES of America and Jerome Kurtz, Commissioner of Internal Revenue, Defendants.
Civ. No. 78-336.
United States District Court, D. Oregon.
May 28, 1981.
*905 Charles P. Duffy, Phillip N. Jones, Duffy, Georgeson, Kekel & Benner, Portland, Or., for plaintiff.
Sidney I. Lezak, U. S. Atty., Judith Kobbervig, Asst. U. S. Atty., Portland, Or., Michael J. Kearns, Atty., Tax Division, Dept. of Justice, Washington, D. C., for defendants.
OPINION
PANNER, District Judge:
Plaintiff, Willamette Industries, a timber producer and manufacturer of wood and forest products, brought this Freedom of Information Act (FOIA) action to gain access to documents kept by the Internal Revenue Service, which would show how the IRS arrives at fair market values for timber in making tax assessments for the timber harvested by plaintiff each year.
Specifically, plaintiff seeks:
a) access to IRS findings as to the fair market value of timber in western Oregon and northern Louisiana, for tax years ending 1974, 1975 and 1976; and
b) access to private timber sales data compiled by the IRS or foresters, for use by the IRS as comparable sales in the valuation of timber subject to tax.[1]
Plaintiff contends that disclosure is required under 5 U.S.C. § 552(a)(2), because the materials sought are "final opinions of an agency," and that the material is not exempt from disclosure under 26 U.S.C. § 6103, because the documents sought are data and statistics, and are covered by the Haskell amendment, 26 U.S.C. § 6103(b)(2).
The matter was submitted on the record and on briefs. Disclosure is ordered.
SUMMARY OF ISSUES
Under the FOIA, the agency has the burden when it contends that requested documents are exempt from disclosure. Ollestad v. Kelly, 573 F.2d 1109, 1110 (9th Cir. 1978). Accordingly, to prevail, the government must show that:
1. The material sought is not a "final opinion," within the meaning of 5 U.S.C. § 552(a)(2), OR
2. The material sought is not statistics or data within the meaning of the Haskell amendment, OR
3. The material sought cannot be edited so as to avoid identifying taxpayers, OR
4. The material, after the necessary editing, would be meaningless, OR
5. The burden of editing the material would be too high.
The legislative history of the FOIA emphasizes that it is not a withholding statute but a disclosure statute. Uncertainties in the statutory language are to be resolved in favor of disclosure, and exemptions are to be read narrowly. County of Madison, New York v. U. S. Department of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981).
DISCUSSION
1. Are the Documents Sought "Final Opinions" under 5 U.S.C. § 552(a)?
5 U.S.C. § 552(a)(2)(A) provides:
(a) Each agency shall make available to the public information as follows:
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying
(A) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.
Defendants contend that the engineer's reports sought by plaintiff are not "final opinions," within the meaning of this section. They assert that the engineer's reports, from which the fair market value is determined, are not "final," but only recommendations, subject to agency and to judicial appeal. They rely on NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), for the proposition that agency reports which lead to litigation are not final.
*906 Plaintiff correctly challenges the breadth of this assertion. Sears held that appeals and advice memoranda, prepared by the NLRB General Counsel, were exempt from the FOIA under exemption five, covering attorney work product. Defendants have not, and could not, claim this exemption, because the material they wish to protect is not attorney work product.
The Court in Sears made it clear that this conclusion rested not on the characteristic of "finality" in the document in question, but rather on the attorney work-product exemption:
We recognize that an Advice or Appeals Memorandum directing the filing of a complaint although representing only a decision that a legal issue is sufficiently in doubt to warrant determination by another body has many of the characteristics of the documents described in 5 U.S.C. § 552(a)(2). Although not a "final opinion" in the "adjudication" of a "case" because it does not effect a "final disposition," the memorandum does explain a decision already reached by the General Counsel which has real operative effect it permits litigation before the Board; and we have indicated a reluctance to construe Exemption 5 to protect such documents. Supra, at 153. We do so in this case only because the decisionmaker the General Counsel must become a litigating party to the case with respect to which he has made his decision. The attorney's work-product policies which Congress clearly incorporated into Exemption 5 thus come into play and lead us to hold that the Advice and Appeals Memoranda directing the filing of a complaint are exempt whether or not they are, as the District Court held, "instructions to staff that affect a member of the public."
421 U.S. at 160, 95 S.Ct. at 1521.
Unlike the appeals and advice memoranda, the engineer's reports plaintiff seeks are routinely disclosed to taxpayers, either informally or as part of a statutory notice of deficiency. The engineer's report is the agency's final opinion on the valuation of timber. Defendants' expert agreed with plaintiff's expert that the engineer's reports are "final opinions of timber valuation."
Defendants' argument that no opinion can be final which is subject to judicial review must fail. Nearly all agency opinions are subject to judicial review. I find no intent to exclude such orders from the provisions of the Act merely because they are appealable.
2. 26 U.S.C. § 6103: Haskell Amendment's Applicability to the Requested Material.
Defendants claim that plaintiff's request is exempt from the FOIA under 5 U.S.C. § 552(b)(3), which excludes from disclosure matters:
specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
They contend that 26 U.S.C. § 6103 qualifies as such a statute, Chamberlain v. Kurtz, 589 F.2d 827, 838-39 n.33 (5th Cir.) cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979), and that it precludes disclosure of the return information sought by plaintiffs.
26 U.S.C. § 6103, in pertinent part, provides:
§ 6103. Confidentiality and disclosure of returns and return information
(a) General rule. Returns and return information shall be confidential, and except as authorized by this title
(1) no officer or employee of the United States,
(2) no officer or employee of any State or of any local child support enforcement agency who has or had access to returns or return information under this section, and
(3) no other person (or officer or employee thereof) who has or had access to returns or return information under *907 subsection (e)(1)(D)(iii), subsection (m)(4)(B), or subsection (n),
shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section. For purposes of this subsection, the term "officer or employee" includes a former officer or employee.
(b) Definitions. For purposes of this section
(1) Return. The term "return" means any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.
(2) Return information. The term "return information" means
(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense, and
(B) any part of any written determination or any background file document relating to such written determination (as such terms are defined in section 6110(b)) which is not open to public inspection under section 6110, but such term does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.
Plaintiff agrees that the information it seeks is "return information," but contends that it is "data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer" the Haskell amendment's qualification to section 6103. Defendants contend that the Haskell amendment does not apply because the material sought is not the sort of data covered by the amendment. They argue that the Haskell amendment is aimed only at statistical studies and compilations of data, and that the engineer's reports and private sales information requested by plaintiff do not fit that description. Two cases are helpful on this issue: Long v. U. S. Internal Revenue Service, 596 F.2d 362 (9th Cir. 1979) cert. denied, 446 U.S. 917, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980), and Cliff v. Internal Revenue Service, 496 F.Supp. 568 (S.D.N.Y.1980).
a. Long
In Long, plaintiffs sought disclosure of information compiled in the IRS Taxpayer Compliance Measurement Program (TCMP). The IRS disclosed their statistical tabulations on the TCMP, but refused to disclose their source material, which consisted of computer data tapes containing all financial data reported on an individual taxpayer return, and check sheets, which, in addition to the financial data, included the taxpayer's name, address, and audit information. Plaintiffs were primarily interested in the data tapes, and asked for check sheets only when necessary to interpret the tapes.
The Ninth Circuit ruled that the IRS must disclose the data. The specific data covered by the Haskell amendment was not directly addressed, but the Court gave a broad reading to the amendment, and said that it "demonstrates a purpose to permit the disclosure of compilations of useful data in circumstances which do not pose serious risks of a privacy breach." Id. at 368. The *908 Court declined to limit the scope of the amendment to past agency practices. It referred to Senator Haskell's comment that "the addition by the Internal Revenue Service of easily deletable identifying information to the type of statistical study or compilation of data which under its current practice, has been subject to disclosure, will not prevent disclosure ...," and declined to interpret it as a codification of existing IRS practices.
These statements indicate a broad reading of the amendment, with a presumption in favor of disclosure.
b. Cliff
In Cliff, plaintiff sought IRS staff memoranda discussing the effects of various IRS revenue procedures on the potential or actual tax liability of several specific taxpayers. The Court accepted the IRS argument that the Haskell amendment speaks only to data compilations and statistical surveys rather than information related to particular taxpayers:
This view finds support in the scanty legislative history of the amendment: its author explained during the Senate's consideration of the provision that its purpose was "to insure that statistical studies and other compilations of data ... will continue to the [sic] subject to disclosure ...." 122 Cong.Rec. 24012 (1976). The IRS's interpretation is also more consistent with the language of the statute than is Cliff's: the use of the narrow term "data" in the amendment, rather than a broader one such as "records" or "material," when read with the legislative history, is somewhat persuasive; and it is difficult to understand why Congress would have forbidden disclosure of all of the many components of return information, 26 U.S.C. § 6103(b)(2)(A), supra, if the simple elimination of the taxpayer's identity would allow such information to be released.
These latter arguments carry the day for the government. Statutory interpretation must begin with analysis of the language adopted by Congress, ... and the language here suggests both that the Haskell amendment was intended to reach only statistical studies and that Congress did not intend the IRS to have to delete taxpayer identifications from pure return information relating to individual taxpayers. To give the Haskell amendment the interpretation Cliff urges would nullify much of the effect of section 6103 as it relates to return information, the clear purpose of which was to prohibit dissemination of all the types of such information listed in section 6103(b)(2)(A), supra ....
... If Congress had intended to impose such a duty, it simply would have defined return information as information revealing a taxpayer's identity, and required the IRS to delete such information from requested documents whenever feasible.
496 F.Supp. at 573-74.
c. Cliff and Long Applied
Plaintiff contends that its data is essentially similar to the data sought in Long. It argues that the Long data is even more sensitive than the material it seeks, because the Long data was taken directly from tax returns, while the engineer's reports and sales data at issue here are independent of the actual returns.
Plaintiff also contends that the Cliff interpretation of the Haskell amendment, which distinguished Long by reasoning that the data there had been "generated in the production of statistical data," is incorrect.
The data plaintiff seeks here falls in between that in Cliff and that in Long. Although it is not clear from the opinion, I believe the data in Long was amassed in some way before it was placed on the data tapes. In Cliff there was a memorandum of a meeting held at the request of a taxpayer, and a memorandum concerning an adjustment of liability based on a revenue proceeding. This comes closer to the sort of material plaintiff in this case requests. The memoranda in Cliff, however, were interpretive. The material sought here is more in the nature of data or statistics.
*909 More importantly, however, I think the reasoning of Cliff is unpersuasive and overly narrow, given the broad purposes of the FOIA. Cliff argues that the use of the word "data" in the amendment demonstrates an intention of narrow interpretation, but the word data is used expansively in § 6103(b)(2)(A)'s definition of return information:
(A) a taxpayer's identity, ... or any other data, received by, recorded by, ....
Furthermore, under the Cliff interpretation, the Haskell amendment would be severely limited, and the Ninth Circuit in Long refused to read the amendment narrowly, because of the liberal purpose of the FOIA. 596 F.2d at 368.
I conclude that the Haskell amendment applies to the data with which we are involved.
3. Can the Data Be Edited so as to Avoid Identifying, Directly or Indirectly, a Particular Taxpayer?
An examination of the examples provided by the IRS is necessary.
a. Defendants' Exhibit W-1A is the IRS engineer's report prepared to determine the fair market value of plaintiff's timber in calendar years 1971, 1972, and 1973. Plaintiff seeks similar reports prepared on other timber taxpayers in the relevant areas.
Plaintiff contends that by eliminating the name of the timber company from the top of the page, the data sheets will not directly or indirectly identify the taxpayer to which they correspond.
Defendants' expert, Mr. Schrom, testified that even if all references to Willamette Industries were deleted from the exhibit, a knowledgeable person in the timber industry could still identify the taxpayer because of the combination of the tracts of land involved. He conceded that deletion of the volume of timber sold would preclude identification except in one instance.
b. Exhibit W-1B contains plaintiff's form T for 1971, and because plaintiff's request did not include form T's, it is not in issue.
c. Exhibit W-2 is private sales data supplied to the IRS by the plaintiff in the course of an audit, to support its claimed valuations. It qualifies as "return information" under § 6103(b)(2), and defendants contend that it is not the sort of data contemplated by the Haskell amendment and that it cannot be edited to avoid taxpayer identification.
The Haskell amendment specifically allows disclosure of data from return information, if the requirements are met. As with the engineer's reports, these can be rendered non-identifying by deleting the taxpayer's name, the volume of timber sold and the purchaser.
d. Exhibit W-3 does not include private sales data or IRS valuations. Plaintiff states that it is not relevant here.
e. Exhibit W-4 contains timber valuations prepared by the IRS, analyzing particular tracts of land. They are work papers preparatory to the engineer's report. Timber subject to tax is compared on a species by species basis with sales of comparable timber, and then adjusted to reflect differences in log quality and the cost of logging the timber. Again, there is no specific argument, either in the briefs or in the transcript of the hearing, as to whether these can be rendered anonymous. Plaintiff contends that they can be made non-identifying by deleting the name at the top of the page.
Plaintiff says that this file demonstrates the methodology of the IRS in evaluating timber harvested.
4. Would the Data Sought Be Meaningless after the Necessary Material Was Deleted?
Defendants contend that the editing necessary to make the documents non-identifying would render them meaningless. This is an unsupported assertion, and there is no expert testimony on this point. Plaintiff contends that even with the deletions, the material in W-1A would be meaningful, because it would show the IRS valuations for timber in a particular area of a particular *910 type, and would allow comparison of those values with those offered by the undisclosed taxpayer.
The government has failed to meet its burden of proof on this issue.
5. Burden on the IRS in Editing the Material Requested.
The IRS contends that to comply with the search request and editing requirements of this case, a total of 453,934 pages, in 1343 files, would have to be searched, page by page.
I agree with the IRS that the search and deletions will be somewhat burdensome. However, in Long, the Ninth Circuit held that deleting identifying information was not an unreasonable burden. And in Mead Data Cent., Inc. v. U. S. Department of Air Force, 566 F.2d 242 (D.C.Cir.1977), the Court said that when the data to be deleted was a small portion of the whole, and was "distributed in logically related groupings, the courts should require a high standard of proof for an agency claim that the burden of separation justifies nondisclosure or that disclosure of the nonexempt material would indirectly reveal the exempt information." Id. at 261.
From the sample data submitted, it seems that the material to be deleted comes in regular and specific placesthe top of the page, for example, and some columns of a page. Deleting this material does not reach the level of burdensomeness contemplated by Mead Data.
SUMMARY
All of this data is "return information," as defined in 26 U.S.C. § 6103(b)(2), because it includes "any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or ... to the determination of ... liability...."
Although defendants' expert testified that even with deletions, some engineer's reports would be identifying of a particular taxpayer, no detailed explanation was given to support such opinion. Such testimony does not meet the burden of proof on this issue. With deletions of name and volume, the engineer's reports must be disclosed.
There was no expert testimony on the other documents requested. With deletions of name and volume where appropriate, they must be disclosed.
This opinion shall constitute findings of fact and conclusions of law in accordance with Fed.R.Civ.P. Rule 52(a).
Plaintiff will prepare a Judgment.
NOTES
[1] Plaintiff's original FOIA request included a request for administrative manuals and instructions relating to timber valuation, and defendants have supplied plaintiff with this material.
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437 So.2d 16 (1983)
Walter Ray SLOANE
v.
STATE of Mississippi.
No. 53885.
Supreme Court of Mississippi.
August 24, 1983.
*17 Julie Ann Epps, Jackson, for appellant.
Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, DAN M. LEE and ROBERTSON, JJ.
WALKER, Presiding Justice, for the Court:
This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi, wherein the appellant, Walter Ray Sloane, was indicted, tried, and convicted of armed robbery. Following conviction he was sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections with twelve years suspended, eighteen to serve. From this conviction and sentence, he appeals. We reverse.
In the evening of February 1, 1981, William Gerald Guthrie, employed by Lancaster Properties, A.J. Realty Company, as apartment manager was at the company's Bailey Avenue Apartments located at Collier and Bailey Avenues in Jackson, Mississippi, for the purpose of collecting rent. While coming out of one of the upstairs apartments with his money bag, he was approached by a black male who, as he got directly beside Guthrie, hit him in the head with a revolver. The assailant made several threatening remarks and, as the two scuffled, was able to secure Guthrie's money bag and fled from the scene. According to Guthrie the area was well lit by a series of light bulbs along the apartment balcony and street lights outside the apartment parking lot.
After the police arrived, Guthrie described his assailant as being in his late 20's, 5'7", 150 pounds, black hair; brown eyes, short afro, and clean shaven.
Sloane was arrested after a positive identification was made from police photographs by Charles Epps, a resident of the apartments and a friend of the appellant. The victim, Guthrie, identified Sloane from a police lineup based upon Sloane's facial features, body structure and stature, height and body weight.
Following trial, the jury returned its verdict, "We, the jury, find the defendant guilty as charged."
On appeal the appellant has assigned several errors. However, as this case requires reversal, we find it necessary to address only the issue regarding introduction into evidence of mug shots of the appellant. It is contended that the mug shots indicated appellant had a prior criminal record. The mug shots in question were a full front and a profile shot of the appellant with the inscription "Police Dept. Jackson, Miss." and identification number "27163." The mug shots had been taken several years prior to the crime for which appellant was being tried and portrayed a much younger Sloane. The mug shots had no connection with this more recent crime.
*18 It is the general rule that evidence of other crimes perpetrated by the accused[1] are generally inadmissible. Black v. State, 418 So.2d 819 (Miss. 1982).
In the recent case of Taylor v. State, 426 So.2d 775 (Miss. 1983), the defendant, accused of rape, assigned as error the introduction of mug shots which implied he had a prior criminal record. The photographs were part of a photographic array from which Taylor was identified as the assailant.
We held the introduction of these photographs was not error because the trial judge required any markings that suggested the individuals in the photographs were criminals to be covered or excised.[2]
The photographs in the present case retained enough identifying marks to indicate they came from police files which would cause jurors to suspect the appellant had a criminal record or had been in trouble with the police.
In United States v. Harrington, 490 F.2d 487 (2nd Cir.1973), the Court outlined three prerequisites to the introduction of mug-shot type photographs in order to preclude their introduction from being error:
(1) The Government must have a demonstrable need to introduce the photographs; and
(2) The photographs themselves, if shown to the jury, must not imply that the defendant had a prior criminal record; and
(3) The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. (490 F.2d at 494).
The photographs in this case were introduced during direct examination of Detective Knowles who testified that the photographs were used in a picture lineup as a part of her investigation of the robbery and were shown to several witnesses including Mr. Guthrie, the victim, a Mr. and Mrs. Johnson, residents of the apartments, and Mr. Epps. Mr. Epps made a positive identification of Sloane from the pictures. Sloane did not testify in his own behalf.
The introduction of the mug shots violated all three of the three prerequisites set out in Harrington, supra, in that:
(1) The State has not demonstrated any need for the introduction of the photographs and we are unable to find any relevancy for their introduction. Mr. Epps was a witness for the State and made a positive in-court identification of the defendant Sloane. We are at a loss to understand why they were introduced.
(2) The photographs portrayed a much younger Sloane and under each appeared "Police Dept. Jackson, Miss." and a number "27163" which would make it undeniably clear to the jurors that Sloane had been involved in or was suspected of prior criminal activity.
(3) During the State's questioning of Detective Knowles it was evident that the photographs were some that had been in the police files prior to Sloane's arrest for this crime. Therefore, it was obvious they were taken by the police department during the course of earlier suspected criminal activity on the part of Sloane.
We note that it is permissible to use mug shots when necessary to the State's case or rebuttal that were taken incident to the crime for which the defendant is being tried. However, even then any reference to the police department or identification number indicating the photographs are from police files should be cropped.
Under the circumstances presented by the evidence in this case, we are of the opinion that the introduction into evidence of the mug shots of Sloane constituted reversible *19 error in that they implied that he had a prior criminal record.
For the reasons stated herein, this cause is reversed and remanded for a new trial.
REVERSED AND REMANDED.
PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.
NOTES
[1] However, there are exceptions to this principle. See Gray v. State, 351 So.2d 1342 (Miss. 1977).
[2] Police photographs or mug shots have been around for well over a half a century and prosecutors have avoided using them as borne out by the fact that Taylor, supra, is the only Mississippi case that we can find where they were introduced into evidence. This case comes on the heels of Taylor. We would point out before the practice becomes widespread, that the use of mug shots except when absolutely necessary, is inviting error.
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419 So.2d 835 (1982)
STATE of Louisiana
v.
Ronald BURNETTE.
No. 82-KA-0281.
Supreme Court of Louisiana.
September 7, 1982.
Rehearing Denied October 15, 1982.
*836 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., Carey T. Schimpf, Asst. Dist. Atty., for plaintiff-appellee.
Timothy R. Fischer, Jeanette G. Garrett, Asst. Indigent Defender, Shreveport, for defendant-appellant.
WILLIAM H. BYRNES, III, Justice Pro Tempore.[*]
On July 28, 1980 defendant, Ronald Burnette, cashed two checks at two separate businesses in the Shreveport area. These checks were among a large group of checks stolen from a local service station. The defendant had forged the drawer's signature and named himself as payee. He was arrested in Jonesboro, Arkansas on or about April 2, 1981 on nine counts of forgery. He was charged by bill of information with four counts of forgery, a violation of La. R.S. 14:72. On August 14, 1982, pursuant to a plea bargain with the state, defendant pled guilty to two of these counts and was sentenced to ten years at hard labor on each count, to run concurrently. On appeal defendant urges two assignments of error.
ASSIGNMENT OF ERROR I
The first assignment of error alleges that the trial court erred in not complying with the terms of the plea bargain agreement. Defendant contends that his plea was entered on the condition that if he were determined to be a drug addict under La.C.Cr.P. Art. 902 he would be sentenced to Odyssey House for treatment instead of being given a jail term. The record in this case makes it abundantly clear that the trial judge did not at any time promise the defendant a particular sentence. Indeed the trial judge went to great lengths to make sure the defendant realized that no guarantees as to sentencing were being given. At the hearing on the acceptance of defendant's guilty plea the judge specifically stated:
"Do you also understand that by entering a plea of guilty that the maximum sentence on each of these charges would be a total of ten years at hard labor? However, I have agreed with both the district attorney and the defense attorney to their proposal to me. If it turns out that you are, in fact, after the pre-sentence investigation report that you have a drug problem, in contemplation of that, which is set out in Article 902; in other words, you are a drug addict, that the court would probably sentence you, but consider sending you, instead of to prison, to Odyssey House."
The court went on to state:
"Do you understand that no one can make any promises from me as to what your sentence will be, but subject to what I have just told you on the record, that would be the intent of all parties? ... I will have to get that pre-sentence investigation. We will have to have a hearing so I can better understand the facts and your background, which are very important in this case, and then make my decision upon the basis of those facts."
This is not a case where the defendant was induced to plead guilty by a promise of a particular punishment. The trial judge obviously went out of his way to make absolutely sure the defendant was not misled. The defendant, under these circumstances, could not reasonably believe that he had been promised anything more than a chance at Odyssey House treatment which would depend entirely on the results of the pre-sentence investigation. The defendant was given ample opportunity to rebut any adverse information contained in the report and to present his arguments in favor of commitment to Odyssey House. Accordingly this assignment of error lacks merit.
ASSIGNMENT OF ERROR II
The defendant also contends that his sentence is excessive and that the trial judge did not consider mitigating factors *837 such as the defendant's age, work record, family, or his potential for rehabilitation in imposing sentence. This contention is without merit. The trial judge in this case did an exemplary job of following the guidelines set forth in Code of Criminal Procedure Article 894.1 and particularizing the sentence to the defendant. Before imposing sentence, the court commented extensively on numerous aggravating and mitigating circumstances. He outlined the defendant's extensive criminal background which included charges of vagrancy, possession of marijuana, simple burglary, accessory after the fact to murder, obtaining narcotics by fraud, and six counts of forgery unrelated to the instant offense. The court further noted that the defendant had been pursued by the authorities for nine months before his arrest. Additionally the trial court emphasized that the defendant's record did not support placing him in a facility which he could leave at any time and again endanger the community by his criminal activities. The burglary of a neighbor's home to steal checks was an indication to the trial court that the defendant's conduct threatened serious harm to others. Furthermore the court noted that no restitution had been offered by the defendant. Defendant had enrolled in drug treatment programs in the past without success. The court felt that the defendant would be likely to commit other crimes if not confined for treatment. The court did not feel that the defendant's self-induced drug habit provided the type of strong provocation which could justify his conduct. In short, the trial court went painstakingly down the list of every circumstance which might have had a bearing on the appropriate punishment of this defendant, including his professed willingness and desire to rehabilitate himself. The proceeding was eminently fair and exceedingly thorough.
The choice of sentences within the statutorily prescribed range lies within the sound discretion of the trial judge. State v. Williams, 412 So.2d 1327 (La.1982); State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (1982). This discretion is subject only to the constitutional limitations on excessive sentences and should not be disturbed absent manifest abuse.
In this case the trial judge carefully articulated the factual basis for his sentence taking into account circumstances, both mitigating and aggravating, which had a bearing on his decision. We find no manifest abuse of discretion in the sentence imposed. This court has upheld similar sentences in similar circumstances. State v. Perkins, 384 So.2d 782 (La.1980); State v. Gilmore, 323 So.2d 459 (La.1975). The conviction and sentence are therefore affirmed.
AFFIRMED.
NOTES
[*] Judges Charles R. Ward, William H. Byrnes, III and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.
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July 25, 2017
JUDGMENT
The Fourteenth Court of Appeals
REY GARZA, Appellant
NO. 14-16-00615-CV V.
ROXANA REGALADO HARRISON AND JOSEPH SANTELLANA,
INDIVIDUALLY AND AS RESPRESENTATIVES OF THE ESTATE OF
JONATHEN ANTHONY SANTELLANA, DECEASED, Appellees
________________________________
This cause, an interlocutory appeal from the trial court’s July 19, 2016 order
denying appellant Rey Garza’s motion to dismiss was heard on the transcript of the
record. We have inspected the record and find no error. We AFFIRM the trial
court’s order.
We order appellant to pay all costs incurred in this appeal.
We further order this decision certified below for observance.
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543 F.Supp. 1026 (1982)
NORTHERN TELECOM INC., Plaintiff and Third-Party Defendant,
v.
WANG LABORATORIES, INC., Defendant and Third-Party Plaintiff,
v.
NORTHERN TELECOM LIMITED, Third-Party Defendant.
Civ. A. No. 81-1130-G.
United States District Court, D. Massachusetts.
July 26, 1982.
*1027 John J. Curtin, Jr., Anne J. Kopelman, Bingham, Dana & Gould, Jerome P. Facher, Hale & Dorr, Boston, Mass., for Northern Telecom Inc.
Thomas J. Sartory, Boston, Mass., for Northern Telecom Inc. and Northern Telecom Ltd.
Hale & Dorr, Boston, Mass., and George W. Whitney, Brumbaugh, Graves, Donohue & Raymond, New York City, for Northern Telecom Ltd.
Martin Kirkpatrick, Fish & Richardson, Paul F. Ware, Jr., Goodwin, Procter & Hoar, Boston, Mass., for Wang Laboratories, Inc.
MEMORANDUM AND ORDER GRANTING NORTHERN TELECOM LIMITED'S MOTION TO DISMISS
GARRITY, District Judge.
Plaintiff Northern Telecom Inc. brought this action pursuant to 28 U.S.C. § 1338(a) against Wang Laboratories, Inc., seeking injunctive and monetary relief for alleged infringement of U. S. Letters Patent 3,760,375. Wang denied NTI's essential allegations, and brought a counterclaim against NTI and its parent, Northern Telecom Limited (NTL), under 28 U.S.C. § 2201, seeking a declaration of title to the patent and a declaration that the patent is invalid, unenforceable and not infringed by Wang. NTL moved to dismiss the counterclaim as against it, or for summary judgment, for failure to state a claim upon which relief may be granted against NTL and for lack of subject matter jurisdiction. NTL's alternative motions present the only matters before the court for decision. Disposition of those motions essentially turns on whether NTL has title to the patent in question. The court allowed Wang a two-month period of discovery directed to that issue, and heard argument on the motions on June 10, 1982. Having done so, we now grant NTL's motions and order the action dismissed as against it.
The Declaratory Judgment Act, under which Wang brings its counterclaim, provides that "[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration .... 28 U.S.C. § 2201. The plain language of the statute makes clear that, as the First Circuit has found, "[a] declaratory judgment action is not justiciable if it does not present a case or controversy." Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., 1 Cir. 1971, 439 F.2d 871, 873. The question this action presents, therefore, is whether Wang's counterclaim against NTL presents the requisite "case of actual controversy." Resolution of that question depends on whether NTL owns the patent which is the subject of this proceeding.
NTL contends that it does not now, nor has it ever, held title to the patent. The patent in question was originally issued to Sycor, Inc. in 1973. Sycor subsequently merged with and into Data 100 Corporation on May 31, 1979, and the combined entity became Northern Telecom Systems Corp. (NTSC). Some 19 months later, NTSC merged with and into NTI. NTL contends that title to the patent, and all rights derived from that status, passed from Sycor to NTSC and finally to NTI.
Wang disagrees. It contends that NTL does own the patent. Establishing record title, upon which NTL relies, does not prove ownership, it insists. Moreover, Wang argues that a 1980 R & D Agreement vests ownership in NTL. Wang further contends that NTL has acted in the past as if it did own the patent by submitting a Draft License Agreement to Wang and others and by threatening suit for infringement.
We do not believe that Wang has established the presence of an actual controversy between it and NTL. The First Circuit interpreted the requirements of an action under 28 U.S.C. § 2201 in a patent suit in Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., supra. First, a charge of infringement is a prerequisite to a finding of justiciability. The requisite charge is liberally construed but plaintiff must show *1028 at least a "reasonable apprehension" of such an allegation of "that it would probably face an infringement suit." Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., supra at 874. Second, "plaintiff must have actually produced or have made active preparation to produce the accused article." Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., supra at 874-75. Although the second jurisdictional requirement has been met here, the first is absent. Wang may have had grounds for a "reasonable apprehension" of an infringement suit in 1980 when attorneys for NTL wrote to Wang asserting NTL's ownership of the '375 patent and offering a Draft License Agreement. It is not so clear that such an apprehension should reasonably have existed, however, on July 17, 1981 when Wang filed its Amended Answer and Counterclaim. Moreover, under the Declaratory Judgment Act the time for determining whether an actual controversy, and thus subject matter jurisdiction, exists is not when the suit is initiated but rather when a court hears argument.[1]Gordon v. Zwickler, 1969, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113. By that time, Wang's apprehension should have vanished. NTI, not NTL, brought the infringement suit which triggered Wang's counterclaim. NTL has neither charged, nor threatened to charge, infringement during the pendency of this suit. To the contrary, it has filed numerous papers which deny that it owns the patent or has any right to bring such an action. Accordingly, NTL would be estopped from later suing Wang for patent infringement based on assertions of right inconsistent with the position it has advanced consistently here. See Hurd v. DiMento & Sullivan, et al., 1 Cir. 1971, 440 F.2d 1322, cert. denied, 1971, 404 U.S. 862, 92 S.Ct. 164, 30 L.Ed.2d 105; Colonial Refrigerated Transportation, Inc. v. Mitchell, 5 Cir. 1968, 403 F.2d 541, 550.
Even if Wang had met the technical requirements for jurisdiction under 28 U.S.C. § 2201, we would exercise the discretion which that statute allows us not to entertain that suit as against NTL. The Declaratory Judgment Act grants discretion in courts to hear actions within its ambit, but it does not confer an absolute right upon a litigant to be heard. Public Service Commission v. Wycoff Co., 1952, 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291; Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., supra at 875. We see no "useful purpose" in entertaining this action against NTL. See 6A, J. Moore Federal Practice, ¶ 57.20 at 57-216 (2d ed. 1982). The purpose of Wang's counterclaim as against NTL is to preclude NTL from bringing future actions against it for infringement based upon acts which have occurred. Wang has achieved that aim through the litigation on NTL's motions. NTL has consistently maintained throughout this suit that it neither owns nor has any interest in the '375 patent. We conclude, therefore, that it would be equitably estopped from adopting, for purposes of later litigation against Wang, a contrary position. Accordingly, Wang is now secure from that potentiality. To the extent Wang has a broader purpose than that described above, i.e., to the extent it seeks to declare the '375 patent invalid and unenforceable, Wang may pursue that relief through its counterclaim against the purported patentee, NTI. See Wm. T. Burnett & Co., Inc. v. Tenneco Chemicals, Inc., S.D. N.Y.1974, 184 U.S.P.Q. 672; Medtronic, Inc. v. Mine Safety Appliances Co., D.Minn.1979, 468 F.Supp. 1132, 1148. These cases are distinguishable from the present action in some particulars but they do stand for the proposition, relevant to this alternative ground of dismissal, that a court may properly dismiss a declaratory judgment action for declaration of patent invalidity against a parent corporation where the issues involved in the action can be resolved without the parent's presence and where that dismissal imposes no injustice or unfairness on the declaratory plaintiff.
*1029 Since we dismiss Wang's declaratory judgment action as against NTL for lack of subject matter jurisdiction, we do not reach NTL's motion for summary judgment. See Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939.
NOTES
[1] It is conceivable, of course, that a suit might present an actual controversy at the time of hearing, yet not by the time the court actually decides it. We need not address that question since it is not raised here.
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500 F.Supp.2d 986 (2007)
COUNTRY MUTUAL INSURANCE COMPANY a/s/o Kevin and Maureen O'Carroll, Plaintiff,
v.
SUNBEAM PRODUCTS, INC., Defendant.
No. 06 C 4887.
United States District Court, N.D. Illinois, Eastern Division.
June 22, 2007.
*987 *988 Harry Ray Chiles, Jr., Chiles & Associates, Wheaton, IL, Plaintiff.
David F. Ryan, David W. Gray, John William Patton, Jr., W. Mark Sickles, Patton & Ryan, LLC, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
KENDALL, District Judge.
Plaintiff Country Mutual Insurance Company ("Country Mutual," or "Plaintiff"), as subrogee of Kevin and Maureen O'Carroll (the "O'Carrolls"), brought this action under Illinois law, seeking reimbursement of funds paid to the O'Carrolls under an insurance policy after an allegedly defective toaster manufactured by Defendant Sunbeam Products, Inc. ("Sunbeam," or "Defendant") caught fire and damaged the O'Carrolls' residence. Sunbeam has moved for summary judgment pursuant to Fed R. Civ. P. 56, arguing that the affirmative defense of "assumption of the risk" completely bars recovery by Plaintiff. Specifically, Defendant contends that the O'Carrolls assumed the risk that their toaster would cause a fire because: (1) Maureen O'Carroll knew that the toaster had a problem "sticking" in the past; and (2) the O'Carrolls continued using the toaster in disregard of this problem. This Court finds that Sunbeam has failed to meet its burden to demonstrate that the O'Carrolls continued to use a toaster they knew to be unreasonably dangerous. Accordingly, Defendant's Motion for Summary Judgment is denied.
STATEMENT OF FACTS
The O'Carrolls purchased a toaster manufactured by Defendant. See Def.'s Facts at ¶ 12.[1] Maureen O'Carroll was aware that the toaster had a problem "sticking" in the past but she did not report that problem or attempt to have the toaster repaired. Id. at ¶¶ 15, 16. On August 21, 2004, the toaster failed to eject some inserted waffles and caught on fire. Id. at ¶ 12. It had last been used by minor children, who were unattended at the time of that use. Id. at ¶ 18. At the time of the fire, the toaster had been turned on and was completely unattended. Id. at ¶¶ 17, 19. Plaintiff alleges that the toaster had a manufacturing defect that caused the fire and damage to the O'Carrolls' property. Id. at ¶¶ 12, 13.
STANDARD OF REVIEW
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). In determining whether a genuine issue of fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001). The Court, however, will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the Court *989 will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record: an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir.1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[,] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted."`. "Summary judgment should be denied if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
DISCUSSION
I. Illinois Law Governs the Dispute Between the Parties.
Defendant asserts and Plaintiff does not contest that Illinois law governs this dispute. A federal court, sitting in diversity, applies the choice-of-law principles of the state in which it sits. See Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Illinois uses the "most significant relationship" approach of the Restatement (Second) of Conflicts of Law. Esser v. McIntyre, 169 Ill.2d 292, 298, 214 Ill.Dec. 693, 661 N.E.2d 1138 (Ill.1996). In applying this test, the Court weighs four factors: "(1) where the injury occurred; (2) where the injury-causing conduct occurred; (3) the domicile of the parties; and (4) where the relationship of the parties is centered." Id. Generally, the law of the place of injury controls unless some other jurisdiction has a more significant relationship with the occurrence and with the parties. Id.
In this case, the injury occurred in Illinois. While Defendant is incorporated in Delaware, both the Plaintiff and the O'Carrolls are domiciled in Illinois, which has a strong interest in providing remedies to its injured citizens. Id. at 300, 214 Ill.Dec. 693, 661 N.E.2d 1138. Neither of the parties suggests that the law of Delaware might apply in this case, nor can this Court conceive of any strong argument in favor of the application of Delaware law to this dispute. Accordingly, the Court decides the instant Motion for Summary Judgment under Illinois law.
II. Sunbeam is Not Entitled to Summary Judgment on the Basis of its Assumption of the Risk Defense.
"Under applicable Illinois law, `Din all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought.'" Tidemann v. Nadler Golf Car Sales, Inc., 224 F.3d 719, 726 (7th Cir. 2000) (quoting 735 ILCS 5/2-1116; Freislinger v. Emro Propane Co., 99 F.3d 1412, 1417 (7th Cir.1996)). Section 5/2-1116 was subsequently amended and those amendments were, in turn, invalid by the Supreme Court of Illinois in Best v. Taylor Machine Works, 179 Ill.2d 367, 228 Ill.Dec. 636, 689 N.E.2d 1057 (1997). Id. "Section 5/2-1116 makes clear that it does not matter whether a plaintiff's case is based on negligence or `product liability based on strict tort liability.'" Id. Accordingly, if a defendant can prove that the plaintiff's own negligence was more than 50% of the cause of an injury in tort, then no damages are to be awarded. Id.
*990 Sunbeam bases its motion for summary judgment upon the affirmative defense of assumption of the risk. "Traditionally, courts have classified the doctrine of assumption of the risk into three categories: (1) express assumption of the risk; (2) primary implied assumption of the risk; and (3) secondary implied assumption of the risk." Evans v. Lima Lima Flight Team, Inc., 373 Ill.App.3d 407, 311 Ill.Dec. 521, 869 N.E.2d 195, 206 (2007) (citing Hanke v. Wacker, 217 Ill.App.3d 151, 158, 160 Ill.Dec. 159, 576 N.E.2d 1113 (1991)). Express assumption of the risk is found where an individual has explicitly agreed, in advance, to relieve another of a legal duty owed to him or her. Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 433, 90 Ill.Dec. 237, 481 N.E.2d 1037 (1985). "A primary implied assumption of the risk exists where the conduct of the parties indicates that an individual has implicitly consented to encounter an inherent and known risk, thereby excusing another from a legal duty which would otherwise exist." Evans, 869 N.E.2d at 206 (citing Russo v. Range, Inc., 76 Ill.App.3d 236, 238, 32 Ill.Dec. 63, 395 N.E.2d 10 (1979)). "Finally, secondary implied assumption of the risk occurs where the defendant's negligence created a danger that was apparent to the injured party, who nevertheless voluntarily chose to encounter it." Evans, 869 N.E.2d at 206 (citing Duffy, 135 Ill. App.3d at 433-34, 90 Ill.Dec. 237, 481 N.E.2d 1037). "As secondary implied assumption of the risk functions in a similar manner as contributory negligence, the introduction of comparative fault abolished this doctrine and it no longer operates as a complete bar in negligence actions." Evans, 869 N.E.2d at 206 (citing Duffy, 135 Ill.App.3d at 435, 90 Ill.Dec. 237, 481 N.E.2d 1037).
Referring generically and interchangeably to "the risk of damages," "the risk of injury," or simply "the risk," Sunbeam contends that the O'Carrolls "assumed the risk" in this case and Plaintiff therefore should be barred from recovery. Sunbeam argues that the O'Carrolls "assumed the risk" because: (1) the O'Carrolls knew their toaster had a problem "sticking;" and (2) with knowledge of the "sticking" problem, the O'Carrolls continued to use the toaster. Sunbeam concludes that because Country Mutual did not rebut Sunbeam's statement of facts and because Country Mutual did not submit any additional facts, the O'Carroll's "could only be deemed to be in excess of 50% [responsible for the fire] and Plaintiff should be barred from recovery and summary judgment should be granted." (Def.'s Reply at ¶ 25).
But establishing that the O'Carrolls used a toaster they knew to be defective in the sense that it had a "sticking" problem does not necessarily mean that the O'Carrolls assumed the risk of a known danger. "In order to `assume the risk' the plaintiff must have voluntarily and unreasonably used that aspect of the product that was alleged (and proven) to be unreasonably dangerous." Walsh v. Emergency One, Inc., 26 F.3d 1417, 1422 (7th Cir.1994) (citing Varilek v. Mitchell, 200 Ill.App.3d 649, 661-62, 146 Ill.Dec. 402, 558 N.E.2d 365 (1990) ("Assuming the risk, in the context of product liability law, means voluntarily and unreasonably proceeding to encounter a known danger. The test is subjective, in the sense that what must be considered is the state of mind of the particular plaintiff rather than that of a reasonably prudent person.")). In order to prevail on the defense of assumption of the risk, Sunbeam must therefore demonstrate that the O'Carrolls were aware that the toaster was unreasonably dangerous and continued to use the toaster in spite of the known danger.
Sunbeam has not demonstrated that the O'Carrolls continued to use a toaster they *991 knew to be dangerous. While it is undisputed in this case that Maureen O'Carroll knew her toaster had a "sticking" problem at some unspecified point in the past, Sunbeam has not presented any evidence demonstrating that the O'Carrolls were aware or even suspected that their use of the toaster at the time of the fire presented any danger. Instead, without citing any caselaw in support of the proposition, Sunbeam argues that "[i]t is reasonable to infer that O'Connell [sic] understood and appreciated the risk with no further evidence [beyond knowledge of the `sticking' problem] . . . since there is no fact or affidavit in evidence to indicate she did not appreciate the risk." (Def.'s Reply at ¶ 18).
Whether Sunbeam is correct depends upon what the O'Carrolls knew about the nature of the "sticking" problem. Unfortunately for Sunbeam, there is no evidence whatsoever in the record as to the nature of that problem or whether the O'Carrolls knew or suspected that it rendered the toaster unreasonably dangerous. Without presenting any evidence tending to establish that the O'Carrolls were aware that the toaster was dangerous, Sunbeam cannot establish that the O'Carrolls assumed any risk and, thus, cannot foreclose the possibility that a reasonable jury could return a verdict in favor of Country Mutual. Accordingly, Sunbeam's Motion for Summary Judgment is denied.
So ordered.
NOTES
[1] The facts are presented in Defendant's Statement of Facts ("Def.'s Facts"), which appears at page 3 of the Motion for Summary Judgment. Plaintiff did not file a response to Defendant's Statement of Facts. Accordingly, the facts set forth in Defendant's Statement of Facts are deemed admitted for purposes of deciding Defendant's Motion. See Local Rule 56.1(b)(3)(C).
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848 F.2d 1245
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Willie R. STEPHENS, Petitioner,v.The DEPARTMENT OF the AIR FORCE, Respondent.
No. 88-3020.
United States Court of Appeals, Federal Circuit.
May 16, 1988.
Before RICH, NIES and BISSELL, Circuit Judges.
PER CURIAM.
DECISION
1
Willie R. Stephens seeks review of the final decision of the Merit Systems Protection Board, Docket No. AT07528710081, 34 M.S.P.R. 649 (1987). More particularly, Stephens seeks mitigation of the penalty. The Department of the Air Force's decision had removed Stephens from his position as an Aircraft Sheet Metal Mechanic, at Robins Air Force Base in Georgia, for refusal to comply with proper orders. We reverse the decision to sustain the penalty of removal and remand for entry of an appropriate order.
OPINION
2
Stephens does not challenge that he refused to complete the repair in progress on two aircraft Pylons as he was ordered to do and that he can be disciplined even if he had a reasonable basis for questioning the quality of the repair work done before he was told to take over the job. Instead, he challenges only the appropriateness of the removal penalty imposed and presents three arguments to support his challenge. To justify the severity of the penalty, the Air Force relied on Stephens' prior disciplinary record which showed a reprimand for careless workmanship and a five-day suspension for failure to comply with a supervisor's order. Stephens was an employee with eight years of service.
3
Stephens first argues that he was denied due process because the board did not require the Air Force to provide proof either of the prior disciplinary actions or that it had given him an opportunity to dispute the charges, yet the board relied on the prior actions to uphold the penalty. We reject this due process argument. The record clearly provides evidence of the prior actions and that Stephens had the opportunity to, and did, dispute the actions when proposed. The agency was not required to prove the merits of the prior disciplinary actions in this proceeding.
4
In his second argument, Stephens asserts that the prior charges are dissimilar to the present charges of insubordination and should not have been used to justify the penalty of removal. See Jackson v. Veterans Admin., 768 F.2d 1325, 1332 (Fed.Cir.1985) (past record not a substantial consideration affecting magnitude of penalty when past disciplinary actions unrelated to charge sustained). Specifically, the Administrative Judge (AJ) found that the present offense "is not the first time [Stephens] has had problems dealing with supervisory authority." Consequently, the AJ found it "obvious that the prior actions did not have a rehabilitative effect on [Stephens]." In affirming, the board also found that Stephens lacked rehabilitative potential as shown by his prior disciplinary record.
5
Those findings are not supported by substantial evidence in the record. Both prior disciplinary actions relate to poor workmanship, not insubordination, although the second incident was described as a "[f]ailure to comply with supervisory instructions."* With respect to that incident, after receiving instruction from his supervisor on the proper use of a template, Stephens made incorrect hinge cut-outs on a landing gear door. In substance, that mistake bears no relationship to insubordination. Accordingly, there is no pattern of conduct which supports a finding that the prior discipline had no rehabilitative effect on Stephens' conduct or showed he lacked rehabilitative potential with respect to the misconduct here.
6
We agree with petitioner's final argument that unless a pattern of related conduct precluding rehabilitation was established in this case, the penalty of removal is excessive when based solely on the charges before us and in view of all of the circumstances, including Stephens' eight years' satisfactory service. Removal is so disproportionate to the sustained offense that it constitutes an abuse of discretion. See Yeshick v. Department of Transp., FAA, 801 F.2d 383, 384-85 (Fed.Cir.1986).
7
In sum, we reverse the board's decision to sustain the penalty of removal. We conclude that no more than a sixty-day suspension could be held reasonable and remand the case for the board to enter an appropriate order in accordance with this opinion.
COSTS
8
Stephens shall recover costs.
*
The suspension involving this charge also rested on charges of failure to properly request leave and unauthorized absence. The latter matters are not related to "insubordination" and the board did not mention them
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-3-2006
Out A Sight Pet v. Radio Sys Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3609
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Out A Sight Pet v. Radio Sys Corp" (2006). 2006 Decisions. Paper 620.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/620
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3609
OUT-A-SIGHT PET CONTAINMENT, INC.,
Appellant
v.
RADIO SYSTEMS CORPORATION, RADIO FENCE
DISTRIBUTORS, INC.; LORI VOLWILER
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 01-cv-05775)
District Judge: Honorable Louis H. Pollak
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 13, 2006
Before: SMITH, WEIS and ROTH, Circuit Judges.
(Filed August 3, 2006)
____________
OPINION
WEIS, Circuit Judge.
Defendant Radio Systems Corporation produces and sells components for
electronic pet fences. Plaintiff Out-A-Sight Pet Containment, Inc. contracted to buy
components from defendant. The dispute between the parties is a straightforward one:
1
did defendant agree to supply all of its various components as plaintiff contends, or only
those listed in an appendix to the sales agreement?
After scrutinizing the supply agreement, the district judge decided that it
was ambiguous and submitted the issue to a jury. During the trial, evidence established
that plaintiff had been particularly interested in purchasing a component labeled as “UL-
275D,” which had not been included in the appendix. Interrogatory number one, which
was submitted to the jury, asked whether defendant was required to supply UL-275D to
plaintiff. The jury responded that plaintiff was not required to supply that item.
Interrogatory two asked the jury if plaintiff had proved that defendant was required to
allow plaintiff to buy all of the components, rather than only those listed in the appendix
to the written agreement. Again, the jury responded in the negative.
After deliberations began, the jury sent a note to the district judge as
follows: “Can we the jury interpret question two to mean all products with the exception
of the UL-275D?” After a discussion with counsel, the judge answered, “No” to the
inquiry. The jury subsequently responded that plaintiff had not proved that the agreement
required defendant to allow plaintiff to buy all of the defendant’s products.
On appeal, the plaintiff contends that the judge’s answer was erroneous.
We are not persuaded.
We review a district court's formulation of a jury interrogatory for abuse of
discretion. Armstrong v. Burdette Tomlin Memorial Hosp. 438 F.3d 240, 246 (3d Cir.
2006) (citing Armstrong v. Dwyer, 155 F.3d 211, 214 (3d Cir.1998)). The only
2
requirement “is that the questions asked of the jury be adequate to determine the factual
issues essential to the judgment.” Id. (quoting Dwyer, 155 F.3d at 216).
Interrogatory number one directly addressed the issue raised by the jury and
it was neither necessary nor desirable to provide further instructions.
Plaintiff further asserts error in the dismissal of the Sherman Act § 1 claim,
15 U.S.C. § 1, based on alleged pressure by competitive distributors to terminate the
plaintiff’s supply contract. At the close of the evidence, the district judge dismissed that
count because of insufficient evidence on the definition of the relevant market, and failure
to demonstrate the required impact on competition. We find no error in the District
Court’s ruling.
Accordingly, the judgment of the District Court will be affirmed.
3
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138 F.3d 958
Houzev.U.S.*
NO. 97-6540
United States Court of Appeals,Eleventh Circuit.
March 9, 1998
Rehearing Denied May 19, 1998.
Appeal From: S.D.Ala. ,No.9600611CVCBC
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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705 F.2d 442
Evansv.Pollard
82-6770
UNITED STATES COURT OF APPEALS Fourth Circuit
3/11/83
1
E.D.Va.
DISMISSED
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734 F.2d 750
15 Fed. R. Evid. Serv. 1563
UNITED STATES of America, Plaintiff-Appellee,v.Bernardo BETANCOURT, Bernardo Sando, Norman Gerwitz, GeneChekanow, Defendants- Appellants.
No. 83-5087.
United States Court of Appeals,Eleventh Circuit.
June 18, 1984.Rehearing and Rehearing En Banc Denied July 30, 1984.Rehearing Denied Aug. 20, 1984.
Sophie De Mayo, Miami, Fla., for Betancourt.
Robyn Hermann, Asst. Federal Public Defender, Miami, Fla., for Sando.
Louis Vernell, North Miami Beach, Fla., James G. Roth, Miami Beach, Fla., for Gerwitz.
Donald I. Bierman, Benedict P. Kuehne, Bierman, Sonnett, Shohat & Sale, Miami, Fla., for Chekanow.
Stanley Marcus, U.S. Atty., and Linda Collins Hertz and William M. Norris, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and ANDERSON, Circuit Judges, and MARKEY*, Chief Judge of the Federal Circuit.
FAY, Circuit Judge:
1
Appellants Bernardo Betancourt, Gene Chekanow, Norman Gerwitz and Bernardo Sando were charged in a seven count indictment alleging violations of 21 U.S.C. Secs. 841(a)(1), 846 and 848.1 After a jury trial they were found guilty on all counts. Each appellant challenges his convictions on several grounds. We find the trial court's only error was its communication with the jury without notice to counsel but this error was harmless. We affirm each appellant's conviction on all counts.
I. FACTS
2
In July, 1981, appellants Chekanow and Gerwitz took over a clinic in North Miami called Dade Obesity and Stress Clinic. In November they opened a second clinic in the Galloway Medical Center. In early 1982, they opened a third clinic, next door to the North Miami clinic and called it United Medical Services. All three clinics ostensibly treated obesity and stress. Appellants Betancourt and Sando were the doctors at the clinics.
3
All three clinics had the same procedure for treating patients.2 Each patient would initially fill out a medical history, a psychological profile and have his blood taken. A therapist would interview the patient and check his vital signs. Then, he would meet the doctor, pay $100 and get a prescription for 45 tablets of methaqualone. On subsequent visits the patient would not have to fill out any forms or have his blood checked. If a patient returned to the clinic within thirty days, clinic personnel would send him to one of the other clinics to get another prescription. The three clinics had a total of 6,745 patient visits and 99.64% received prescriptions for 45 tablets of methaqualone. R.Vol. 17 at 1311.
Appellants raise six issues on appeal:
4
(1) whether the district court erred in denying their motions to suppress due to defective search warrants?
5
(2) whether the district court erred in holding the trial in West Palm Beach?
6
(3) whether the district court erred in refusing to exclude prejudicial medical testimony?
7
(4) whether the evidence was sufficient to sustain the convictions?
8
(5) whether the prosecutor improperly commented on appellants' failure to testify? and
9
(6) whether the appellants' constitutional rights were violated due to communications between the judge and the jury without appellants' counsel being notified or present?
II. SEARCH WARRANTS
10
On May 18, 1982, the government searched appellants' clinics and seized records pursuant to two search warrants issued by a magistrate. Each warrant and supporting affidavit were identical except that one related to records in the office of Dade Obesity and Stress Clinic and the other related to records in the office of United Medical Services, Inc. Appellants challenge the warrants on several grounds.3
A. Probable Cause
11
The Fourth Amendment requires that a search warrant be issued only when there is probable cause to believe that an offense has been committed and that evidence exists at the place for which the warrant is requested. Zurcher v. Stanford Daily News, 436 U.S. 547, 558, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525 (1978). This circuit has stated that probable cause exists "if facts within the magistrate's knowledge and of which he had reasonably trustworthy information would warrant a man of reasonable caution in the belief that a crime was committed and that evidence is at the place to be searched." United States v. Strauss, 678 F.2d 886, 892 (11th Cir.1982). A magistrate's decision that probable cause exists is conclusive absent arbitrariness. United States v. Long, 674 F.2d 848, 852 (11th Cir.1982).
12
The magistrate in this case had enough information to conclude that a search warrant should be issued. The magistrate had an affidavit from Emilio Cheves, a compliance investigator with the Drug Enforcement Administration, describing Cheves' interview for a job at one of the clinics. Cheves was told that his job would be to listen to patients' hearts and write prescriptions for methaqualone. This information was corroborated by Special Agent Mark R. Trouville who had gone to the clinic in an undercover capacity on four occasions. Each time he paid $100 and received a prescription for forty-five tablets of methaqualone. On the basis of this information, the magistrate could, without arbitrariness, find probable cause.
B. Particularity of the Description
13
The Fourth Amendment requires that warrants "particularly describe the place to be searched, and the persons or things to be seized." This requirement of particularity prevents "general, exploratory rummaging in a person's belongings," Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), but elaborate specificity is unnecessary. The description is considered "sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981). The standard "is one of practical accuracy rather than technical nicety." United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir.1976).
14
The property in this case was described in each warrant as follows:
15
all financial records, including but not limited to all documents showing source and amount of income and disbursement, and patient records, limited to those records showing the dates of patient visits, all diagnostic tests performed and results obtained, diagnoses made, medications prescribed and the name of the diagnosing physician, from on or about June 15, 1981 [January 1, 1982], to the present which are evidence of violations of Title 21, United States Codes, Section 841(a)(1).
16
This description prevented a general search and was as specific as the circumstances and nature of the activity permitted. See, United States v. Slocum, 708 F.2d 587 (11th Cir.1983).
C. Reliability of Informant
17
Appellants also assert that the information relied on by the court to establish probable cause did not meet the test for reliability established by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We disagree. In Illinois v. Gates, the Supreme Court abandoned the prior, rigid "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and established instead a flexible standard. Courts should now use a totality of the circumstances analysis to determine whether an informant's tip establishes probable cause. Id. 103 S.Ct. at 2332. Under the new test the issuing magistrate must only "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying [the] hearsay information," id., there is probable cause to issue the search warrant. Reviewing courts must only "ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id., quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960).
18
All of the circumstances in this case indicate probable cause existed to issue the warrant. The hearsay information offered by the informant was corroborated by independent evidence. The magistrate had substantial basis for concluding that probable cause existed.
III. VENUE
19
This case was first noticed for trial in Miami on August 2, 1982. Chekanow filed a motion for continuance and trial was rescheduled for Miami on September 20, 1982. Next, Gerwitz moved for a continuance and the case was set for trial in Fort Lauderdale on October 18, 1982. Sando then moved for a continuance and trial this time was scheduled for November 2, 1983, in West Palm Beach. Betancourt then moved for a continuance but the district judge denied the motion and trial was held in West Palm Beach. Appellants now claim that holding the trial in the Northern Division of the district, rather than in the Southern Division where the offense occurred, violated their rights under Fed.R.Crim.P. 18. We disagree.
20
Prior to 1966 Rule 18 required trial in the division in which the offense was committed.4 The 1966 amendment eliminated the requirement of trial within a division and vested discretion instead in the court "to fix the place of trial at any place within the district with due regard to the convenience of the defendant and his witnesses." Advisory Committee Notes, Fed.R.Crim.P. 18 1966 Amendment. (emphasis added). The Fifth Circuit narrowly construed the rule's new language in Dupoint v. United States, 388 F.2d 39 (5th Cir.1968). The court concluded that trial was not allowed in a division other than that in which the offense was committed unless the trial judge found that it was not convenient to the defendant or his witnesses. Id. at 39. It was reversible error to change venue for the convenience of the prosecution.
21
The Speedy Trial Act of 1974 added another problem to the 1966 rule. The Act provided:
22
In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial.
23
18 U.S.C. Sec. 3161(a).
24
This provision was intended to "permit the trial of a case at any place within the judicial district." H.R.Rep. No. 93-1508, 93d Cong., 2d Sess. 29 (1974) U.S.Code Cong. & Admin.News 1974, p. 7401. The Act did not differentiate between the convenience of the prosecution or the defendant. Instead the term "judicial district" was used "in anticipation of problems which might occur in districts with statutory divisions, where it could be difficult to set trial outside the division." Id. The rule, therefore, was once more amended in 1979 to reconcile the Speedy Trial Act and the rule. The amendment left the setting of the place for trial within the discretion of the trial judge. But in exercising that discretion the judge must consider (1) the convenience of the defendant, (2) the convenience of the witnesses and (3) the prompt administration of justice.5
25
The trial judge did not abuse his discretion in holding this trial in West Palm Beach. The Sixth Amendment provides a defendant with the right to a trial "by an impartial jury of the State and district" where the crime was committed, but there is no constitutional right to trial within a division. See United States v. Anderson, 328 U.S. 699, 704, 705, 66 S.Ct. 1213, 1216, 1217, 90 L.Ed. 1529 (1946). A division of a federal judicial district is not a unit of venue in criminal cases. United States v. James, 528 F.2d 999, 1021 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). The trial had been set twice in Miami and once in Fort Lauderdale. Each time the trial was continued due to motions by the defendants. Our court is painfully aware of the problems in the Southern District of Florida. The Chief Justice had instituted a program of visiting judges to alleviate the overload of cases pending in the Southern District. These judges were using all of the available courtrooms in the Miami courthouse. It was impossible to find an empty courtroom in Miami.6 The court did not abuse its discretion in changing venue in this case.
IV. LEGITIMATE MEDICAL PURPOSE
26
Appellants were charged in the indictment with knowingly and intentionally distributing or dispensing a controlled substance not in the usual course of professional practice and not for legitimate medical purpose in violation of 21 U.S.C. Sec. 841(a)(1) (1980). This section provides in part that:
27
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally ... to ... distribute or dispense, a controlled substance ..."
28
21 U.S.C. Sec. 841(a)(1).
29
The phrase "except as authorized by this subchapter" indicates that this law has certain exceptions. One of these is a limited exemption for doctors.
30
In order to lawfully possess or dispense a controlled substance a doctor must fulfill two requirements. He must be lawfully licensed to practice medicine and he must be registered by the Drug Enforcement Administration. Doctors that are registered are then authorized to possess, distribute or dispense controlled substances. However, they may do so only in the usual course of professional practice and for a legitimate medical purpose.7 To assist the jury in establishing the usual course of professional practice and a legitimate medical purpose the government called two medical doctors to the stand. Appellants now urge that the district court erred in not excluding the doctors' testimony under Federal Rule of Evidence 4038 since its prejudicial effect outweighed its probative value. We disagree.
31
Rule 403 permits a trial court to exclude otherwise admissible evidence because the "probative value" of the evidence "is substantially outweighed by the danger of unfair prejudice." But Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence. United States v. King, 713 F.2d 627, 631 (11th Cir.1983). In criminal trials relevant evidence is inherently prejudicial. The rule permits exclusion only when unfair prejudice substantially outweighs probative value. United States v. Thevis, 665 F.2d 616, 633 (5th Cir.1982) (Unit B).9
32
The jury was told that the government had to prove that "... the defendants distributed or dispensed a controlled substance ... that they acted knowingly and intentionally, and ... that they did so other than for a legitimate medical purpose and in the usual course of their professional practice." R.Vol. 2 at 342. To reach its decision the jury needed medical testimony as to what the drug is, how it is properly used, how it can be abused and the medical profession's view of the drug. The trial judge did not abuse his discretion, United States v. Cole, 670 F.2d 35, 36 (5th Cir.1982) (Unit B), in admitting the testimony of Dr. Wright and Dr. Morgan to help the jury establish the standard of medical practice.
V. SUFFICIENCY OF THE EVIDENCE
33
Appellants argue that the evidence presented at trial was insufficient to support their convictions. Challenges to the sufficiency of the evidence are measured by the standard set out in United States v. Bell, 678 F.2d 547 (5th Cir. Unit B) (en banc ), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The court in Bell stated:
34
It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.
35
Id. at 549.
36
In making this determination we must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accept all reasonable inferences and credibility choices by the fact-finder, United States v. Gonzalez, 719 F.2d 1516, 1521-22 (11th Cir.1983). After a careful review of the record we find the evidence presented in this case was clearly sufficient to meet the government's burden.
VI. PROSECUTOR'S CLOSING ARGUMENT
37
During closing argument Gerwitz' counsel made the following statement to the jury:
38
To the contrary, if you remember when I was reading to Dr. Wright, and Dr. Morgan all of this extensive material that was published in various periodicals, the British Journal of Clinical Pharmacy, the Canadian Medical Journal, the journal of Clinical Pharmacology, the immense number--not immense. Substantial number of articles which I read to Dr. Wright, and Dr. Morgan, each one, each one of these articles establishing, without any question, the total affect of this, of this drug methaqualone.
39
R. Vol. XIX at 1822.
The prosecutor responded:
40
Now, just as you get the rest of the story when you have a live witness on the stand where you can have the cross examination, you listened to the testimony of two doctors in this case, Dr. Wright, who is the medical examiner for Broward County; Dr. Morgan, who works with additional control with South Miami Hospital. Those doctors took the stand, and were subject to cross examination. When it was all said and done, they said Quaalude is not a drug which doctor should prescribe in the ordinary course of medical practice, and should not be prescribe for any kind of a chronic condition. Did we hear any doctor who said, hey, Quaaludes are great. Did we hear any of the doctors who wrote these studies that Mr. Vernell is talking about? No. We didn't hear any testimony. We have Xerox copies of a throw away type.10
41
Appellants assert that the prosecutor's statement was an improper comment on appellants' failure to testify. We disagree.
42
Convictions can be overturned where a comment on a defendant's exercise of his right to remain silent, either by the prosecutor or by counsel for a co-defendant, impairs the integrity of that right. See, United States v. Aguiar, 610 F.2d 1296, 1302 (5th Cir.1980), cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1981). However, not every statement is an impermissible comment on silence. The standard for determining if the comment was impermissible is "whether the statement was manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of an accused to testify." United States v. Dearden, 546 F.2d 622, 625 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188 (1977). In making this determination the court must "look to the context in which the statement was made ... to determine the manifest intention which prompted it and its natural and necessary impact upon the jury." United States v. Forrest, 620 F.2d 446, 455 (5th Cir.1980), quoting Samuels v. United States, 398 F.2d 964, 967 (5th Cir.), cert. denied, 393 U.S. 1021, 89 S.Ct. 630, 21 L.Ed.2d 566 (1969).
43
The statement in this case was clearly not intended, nor would a jury rationally construe it, to be a comment on silence. The statement was an attempt by the prosecution to show the ineffectiveness of appellants' efforts to rebut the government's medical testimony.11 The prosecutor did not improperly comment on the appellants' failure to testify.
VII. COMMUNICATION WITH JURY
44
During deliberations, the jury sent three notes to the trial judge asking for supplemental information. Retired Judge William Campbell12 answered the notes without prior notice to any counsel and outside of their presence. Appellants assert that this procedure violated their constitutional right to be present at every stage of the proceeding. Although we do not approve the procedure followed by the district judge, we find the error harmless.
45
In Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975), the Supreme Court established the rule concerning the right of a defendant and his counsel to be present and participate in any discussion between the judge and the jury. The Court stated that the "orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties ... to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict." Id. at 38, 95 S.Ct. at 2094, quoting Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919). However, the Rogers opinion clearly indicated that in some circumstances the error can be harmless. Rogers v. United States, 422 U.S. at 40, 95 S.Ct. at 2095. This is such a case.
46
The court and the jury communicated three times outside the presence of counsel:
47
QUESTION: Can we find less than 4 defendants guilty of Count III?
48
COURT: Yes.
49
QUESTION: We need clarification as to conspiracy, (Count III) being a separate charge as stated in Indictment, or is "conspiracy" automatically included in Counts I and II?
50
COURT: Yes.
51
QUESTION: Is the jury allowed to request leniency for any defendant(s) if a guilty verdict is found on any count? If the answer is yes, how do we go about making such a request?
52
COURT: No.
53
R.Vol. IX at 1884-1885.
54
These were the only answers given to the jury by the judge.13
55
We do not approve of any unjustified communication between the court and the jury without notifying counsel and therefore do not approve the procedure followed by the trial judge in this case. But, in this case, the error was harmless. The jury had a complete copy of all charges in the jury room. They could refer back to the charges and find the answers they needed. The judge's answers to the questions were responsive and clearly stated the law. Appellants have not shown any error or prejudice. The error is harmless. United States v. McDuffie, 542 F.2d 236, 241 (5th Cir.1976). AFFIRMED.
*
Honorable Howard T. Markey, Chief Judge, U.S. Court of Appeals for the Federal Circuit, sitting by designation
1
Appellants Betancourt and Sando were charged with one count of unlawfully dispensing methaqualone and with conspiracy to unlawfully dispense methaqualone. Chekanow and Gerwitz were charged with four counts of unlawfully dispensing and aiding and abetting the unlawful dispensing of methaqualone, with conspiracy to unlawfully dispense methaqualone and with supervising a continuing criminal enterprise
2
Special Agent Mark Trouville of the Drug Enforcement Administration went to the clinics as a patient in an undercover capacity on four separate occasions. The same procedure was used all four times. This testimony was also corroborated with the testimony of other patients
3
We will not address the argument made by appellants that the affidavit contained an intentional false statement since we find it without merit
4
Prior to July 1, 1966, Fed.R.Crim.P. 18 provided:
Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed, but if the district consists of two or more divisions the trial shall be had in a division in which the offense was committed.
The amended Rule 18, effective July 1, 1966, read as follows:
Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses.
5
Rule 18, as amended in 1979, now reads:
Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.
6
This circuit had to move a scheduled Miami sitting to West Palm Beach due to the unavailability of a courtroom in Miami
7
The Supreme Court in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975) interpreted Section 841 and held that a physician could violate this Section if he exceeded the usual course of professional practice. The jury in Moore had been instructed that the doctor could not be convicted if he was only making "an honest effort" to prescribe for detoxification purposes in compliance with an accepted standard of medical practice. Id. at 142 n. 20, 96 S.Ct. at 345 n. 20. See also, United States v. Blanton, 730 F.2d 1425 (11th Cir.1984)
8
Federal Rule of Evidence 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
9
The Eleventh Circuit has adopted as binding precedent decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982)
10
Dr. Wright had testified that the articles used by counsel were pamphlets mailed to his office and financed by the drug companies. He referred to them as "throw aways." R. Vol. XIX at 1839
11
The prosecutor's comment can also be considered proper under the fair reply doctrine. See, United States v. Hiett, 581 F.2d 1199, 1204 (5th Cir.1978)
12
Due to a prior scheduling conflict Judge Paine, the presiding trial judge, had to attend a meeting in Miami and requested that district judge William Campbell handle any matters in his absence. Judge Campbell is a retired district judge from the Northern District of Illinois
13
The trial transcript indicated the judge's intention that the jury read particular pages of the instructions in conjunction with his responses to the questions. This information was never conveyed to the jury
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NATIONAL )
SECURITY COUNSELORS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-cv-0556 (TSC)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiffs National Security Counselors (“NSC”), Jeffrey Stein, and Truthout initiated this
action, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, challenging
certain fee-related policies and determinations of two components of the Department of Justice
(“DOJ”)—the Federal Bureau of Investigation (“FBI”) and the Civil Division (“Civil”). Before
the court are Defendant’s Renewed Motion for Summary Judgment (ECF No. 34 (Def. Mem.))
and Plaintiff Jeffrey Stein’s Cross-Motion for Summary Judgment (ECF No. 40 (Pl. Mem. &
Opp’n)). Upon consideration of the parties’ filings, and for the reasons stated herein, the court
will GRANT Defendant’s motion and DENY Plaintiff Stein’s motion.
I. BACKGROUND
The facts of this case are set forth in more detail in the court’s February 18, 2015
Memorandum Opinion regarding Defendant’s Motion for Summary Judgment and Plaintiffs’
Cross-Motion for Partial Summary Judgment or, in the Alternative, Discovery. ECF No. 27
(Mem. Op.). In that opinion, this court granted Defendant’s motion, denied Plaintiffs’ motion,
and dismissed Plaintiffs’ four-count Complaint in its entirety. Mem. Op. at 25; see also ECF No.
28 (Order, Feb. 18, 2015). Most relevant to the parties’ current cross-motions, the court found
that “the law and the undisputed facts” entitled Defendant to summary judgment on Count III of
Plaintiffs’ Complaint. Mem. Op. at 14–15.
In Count III, Plaintiffs challenged the FBI’s interim release policy, which requires the
electronic production of medium to large FOIA document requests on multiple CD-ROMs. See
ECF No. 1 (Compl.) ¶¶ 41–67. Plaintiffs alleged that the FBI’s practice of producing electronic
documents in increments of 500 pages per CD, and at a cost of $15 per CD, results in excessive
fees for FOIA requesters in violation of FOIA’s fee provisions. See Compl. ¶ 64. In its February
18 opinion, this court found that the FBI’s interim release policy, including its fee structure, was
“consistent with its obligations under FOIA and applicable regulations.” Mem. Op. at 14.
Plaintiff Stein appealed this court’s decision on Count III, and the D.C. Circuit found that
the FBI’s interim release policy did “not result in a violation of FOIA’s mandate that agencies
recover only ‘reasonable standard charges.’” Nat’l Sec. Counselors v. United States Dep’t of
Justice, 848 F.3d 467, 472 (D.C. Cir. 2017). However, the Circuit found that there remained “a
genuine issue, foreclosing the entry of summary judgment, concerning whether the fees assessed
by the agency exceeded its direct costs” of producing CDs. Id. at 472–73.
The Court noted that the FBI estimated its direct costs to produce one CD to be
approximately $39.50—the amount it costs to employ an FBI employee to run the FBI’s 50-
minute security review program (the “Integrity program”) prior to transferring documents onto a
CD. See id. at 471; see also ECF No. 12-2 (First Hardy Decl.) ¶ 33(d) n.18. The Court found
that summary judgment was not warranted on the record before it because it was unclear whether
the FBI appropriately based its direct costs on the labor costs associated with running the 50-
minute Integrity program, given the lack of information regarding “whether, and to what extent,
2
the 50-minute period for running the [Integrity] program involve[d] employee engagement rather
than idle time.” Id. at 472. Accordingly, the Court vacated this court’s “grant of summary
judgment with respect to Stein’s claim” on Count III and remanded the case “for further
proceedings consistent with [its] opinion.”1 Id. at 475.
II. LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view
all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is material if “a dispute over it
might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
An issue is genuine if “‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary
judgment “bears the heavy burden of establishing that the merits of his case are so clear that
expedited action is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir.
1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980)).
1
In addition to vacating and remanding this court’s decision as to Plaintiff Stein, the Circuit
affirmed this court’s grant of summary judgment to Defendant on Plaintiff NSC’s claims. See
Nat’l Sec. Counselors, 848 F.3d at 475. Given the Circuit’s decision, and the fact that Plaintiff
Truthout declined to join in the appeal, Stein is the only plaintiff remaining in this case. Stein
maintains that Plaintiff NSC alleged claims under Count III as well, and therefore remains a
plaintiff in this case. Pl. Mem. & Opp’n at 9 n.8. But this court has already dismissed as moot
Plaintiff NSC’s claims under Count III. Mem. Op. at 8.
3
FOIA cases are “typically and appropriately . . . decided on motions for summary
judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.
Supp. 2d 123, 130 (D.D.C. 2011) (citation omitted). Upon an agency’s request for summary
judgment on the grounds that it has fully discharged its FOIA obligations, all underlying facts
and inferences are analyzed in the light most favorable to the FOIA requester; only after an
agency proves that it has fully discharged its FOIA obligations is summary judgment
appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).
III. ANALYSIS
FOIA permits agencies to charge FOIA requesters “only the direct costs of search,
duplication, or review.” 5 U.S.C. § 552(a)(4)(A)(iv). On appeal, the D.C. Circuit found there
was a genuine issue concerning whether the FBI’s $15 fee per CD complies with this provision,
and ordered Defendant to “provide a sufficient factual basis upon which the district court can
make the determination that the fees assessed under its interim release policy do not exceed
direct costs.” Nat’l Sec. Counselors, 848 F.3d at 473. The Circuit stated that it did not “question
the possibility that the agency will adequately demonstrate on remand that the FBI’s labor (or
other direct) costs under the interim release policy in fact equal or exceed $15 per CD,” and
noted that “the agency might be able to do so in short order.” Id. This court finds that it has.
In support of its Renewed Motion for Summary Judgment, Defendant submitted a
detailed, eight-page declaration from David M. Hardy, Section Chief of the Record/Information
Dissemination Section in the FBI’s Records Management Division. ECF No. 34-2 (Third Hardy
Decl.). In his declaration, Hardy explains that the Integrity program enables the FBI to move
records “from its FOIA Document Processing System (‘FDPS’), which is a classified computer
network on which records responsive to FOIA requests are processed, to a non-classified
4
computer network from which a CD can be prepared for release.” Third Hardy Decl. ¶ 6. He
further explains that the three major steps of the Integrity program process—document
conversion, Integrity scan, and resolution of issues—all require employee engagement. Id. At
the document conversion step, for example, FBI employees are solely responsible for converting
documents released from FDPS into single-page text documents in preparation for the Integrity
program’s security scan. Id. ¶ 7. Such a conversion requires FBI employees to (1) export the
released documents as multi-page TIF files, (2) rename the released documents and save them to
a common shared drive, (3) convert each page of the released documents into a single-page text
document, and (4) save each converted page onto the shared drive. Id. This level of employee
engagement, Hardy explains, continues for the duration of the 50-minute Integrity program
process. See id. ¶¶ 8–10 (providing a detailed account of employee engagement at the Integrity
scan and issue resolution steps of the process). Hardy asserts that it this level of engagement that
justifies and “underpin[s] the $15 assessed fee.” Id. ¶ 13.
The Hardy Declaration sufficiently demonstrates that FBI employees are actively
engaged for the duration of the Integrity program process, and in turn that the FBI justifiably
calculates its direct costs for CD production based on the labor costs associated with conducting
the 50-minute program. The FBI calculates its direct labor costs to be between $24.50 and
$46.00 per CD, id. ¶ 14, which certainly exceeds the $15 it charges per CD. Accordingly, the
court finds that the FBI’s interim release policy, as implemented through the Integrity program,
does not violate FOIA’s requirement that an agency recover “only the direct costs of search,
duplication, or review.” 5 U.S.C. § 552(a)(4)(A)(iv).
Plaintiff Stein’s arguments do not convince the court otherwise. Stein does not dispute
that the FBI’s direct costs of producing a CD exceeds the $15 it charges per CD. See Pl. Mem.
5
& Opp’n at 3 n.4 (“Plaintiffs will concede for the sake of argument that the direct costs of
producing a CD using the process described by FBI exceed $15 per CD.”); see also id. at 1 n.1
(“Plaintiffs have not filed a response to Defendant’s Statement of Material Facts not in Genuine
Dispute because they do not dispute any of the facts stated therein.”). Nonetheless, he argues
that this court should deny the government’s motion and rule in his favor because the Integrity
program process is unreasonably “convoluted” and “cumbersome.” Id. at 9. Because the
process is unreasonable, Stein argues, the direct costs associated with the process are also
unreasonable, and therefore cannot serve as the “metric against which other arbitrary fees are
measured.” Id.
As a threshold matter, this court is prohibited from implementing the D.C. Circuit’s
remand mandate in a manner that exceeds the scope of the Circuit’s decision. See Indep.
Petroleum Ass’n of Am. v. Babbit, 235 F.3d 588, 597–98 (D.C. Cir. 2001) (“‘an inferior court has
no power or authority to deviate from the mandate issued by an appellate court’”) (quoting
Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306 (1948)); see also Texas Oil & Gas Corp. v.
Hodel, 654 F. Supp. 319, 323 (D.D.C. 1987) (“And, while a district court may not ‘ignore’ any
part of an appellate order on remand, it must scrupulously avoid implementing the mandate in a
manner that exceeds, or limits, the scope of the appellate decision.”). The Circuit ordered the
FBI to “provide a sufficient factual basis upon which the district court can make the
determination that the fees assessed under the interim release policy do not exceed direct costs,”
and remanded the case for “further proceedings consistent with [its] opinion.” Nat’l Sec.
Counselors, 848 F.3d at 473, 475. Thus, the only question before this court on remand is
whether the FBI’s fees exceed its direct costs. The Circuit confirmed this limited scope on
August 11, 2017, when it denied Plaintiff Stein’s motion to recall and modify its mandate. ECF
6
No. 40-1 (Circuit Order, Aug. 11, 2017). Stein argued that the Circuit should modify its mandate
and “remove any limitation . . . on the District Court’s ability to consider the reasonableness of
FBI’s direct costs.” Document #1686437, Nat’l Sec. Counselors v. Dep’t of Justice, No. 15-
5117, at 5 (D.C. Cir. July 28, 2017). The Circuit declined to do so, and therefore this court is
prohibited from considering the reasonableness of the FBI’s direct costs.
Even if the issue of reasonableness was appropriately before this court, Stein has failed to
demonstrate that the FBI’s procedures, and therefore its direct costs, are unreasonable. Stein has
not submitted an affidavit or declaration supporting his argument that the FBI’s CD production
process, and any direct costs associated with the process, are “unreasonable” and “bizarre.” Pl.
Mem. & Opp’n at 6, 9. Nor does he provide the court with details regarding what a proper,
reasonable CD production process entails. Instead, he asserts, without any factual support, that
the FBI’s “process serves very little actual purpose,” id. at 8, and is “unnecessarily complex and
redundant,” id. at 4.2 Such conclusory allegations do not create a triable issue of fact. See Public
Citizen Health Research Group v. Food & Drug Admin, 185 F.3d 898, 908 (D.C. Cir. 1999) (“As
we have said many times before, ‘[i]t is well settled that [c]onclusory allegations unsupported by
factual data will not create a triable issue of fact.’”) (citations omitted). Therefore, even if this
court were permitted to consider the reasonableness of the FBI’s direct costs, Stein’s allegations
are insufficient to prevent entry of summary judgment in Defendant’s favor.
2
In support of his unreasonableness argument, Stein also references a transcript from a
proceeding in Nat’l Sec. Counselors v. Central Intelligence Agency, No. 11-443-BAH (D.D.C.
Dec. 16, 2011). See Pl. Mem. & Opp’n at 5. The court finds the discussion in the transcript
inapposite. The transcribed proceeding concerned the Central Intelligence Agency’s inability to
produce electronic documents due to its production process. Here, Stein asks the court to find
that the FBI’s CD production process results in unreasonable direct costs.
7
For all of the above reasons, the court finds that the FBI has complied with the D.C.
Circuit’s order and provided “a sufficient factual basis” upon which this court can determine that
the fees assessed under the FBI’s interim release policy do not exceed the FBI’s direct costs of
CD production. Given Plaintiff Stein’s concession that a sufficient factual basis exists, the court
finds that there are no disputed issues of material fact and that Defendant is entitled to judgment
as a matter of law on Count III.
IV. CONCLUSION
For the foregoing reasons, the court will grant Defendant’s Renewed Motion for
Summary Judgment and deny Plaintiff Stein’s Cross-Motion for Summary Judgment.
A corresponding order will issue separately.
Date: March 31, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
8
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HATEM M SHALABI; PYRAMID No. 12-36029
GOLD, INC.,
D.C. No. 2:11-cv-00505-BHS
Plaintiffs - Appellants,
v. MEMORANDUM*
ATLANTIC RICHFIELD COMPANY;
BP CORPORATION NORTH
AMERICA, INC., individually and as
successor-in interest to Atlantic Richfield
Company; BP PRODUCTS NORTH
AMERICA, INC., individually and as
successor-in-interest to Atlantic Richfield
Company; BP WEST COAST
PRODUCTS, LLC, a Delaware limited
liability company,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted June 3, 2014
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.
Appellant Hatem Shalabi appeals the district court’s grant of summary
judgment in favor of BP West Coast Products, LLC (“BP”). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Shalabi’s common law fraud and negligent misrepresentation claims fail
because Shalabi cannot show that he justifiably relied on BP’s statements that the
gas station property contained “no contamination.” Shalabi received multiple
copies of an environmental report clearly stating that some contamination existed
on the property. As the district court observed, Shalabi also signed multiple
documents that likewise undercut his justifiable reliance argument, including the
Second Amendment to the real estate sales agreement (“RESA”) which provided,
“The parties agree and acknowledge that the results contained in the
Environmental Report do not disclose the presence on the Real Estate of any Pre-
Closing Contamination requiring corrective action pursuant to Agency directive.”
Moreover, Section 13 of the RESA provided that Shalabi was “buying the Real
Estate solely in reliance on [his] own investigation.” Thus, even if Shalabi relied
on the literal interpretation of BP’s statements—and believed the property was
devoid of all contaminants—such reliance would be unreasonable under the
circumstances. See Skagit State Bank v. Rasmussen, 745 P.2d 37, 39 (Wash. 1987)
2
(“[A] party whose rights rest upon a written instrument which is plain and
unambiguous . . . cannot claim to have been misled concerning its contents.”).
We also affirm the district court’s grant of summary judgment on Shalabi’s
fraud claims brought under Washington’s Gasoline Dealer Bill of Rights Act
(“GDBRA”). See Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1039 n.3 (9th Cir.
2008) (summary judgment may be affirmed on any ground supported by the
record). Like Shalabi’s common law claims, justifiable reliance is an element of
fraud alleged under the GDBRA. See Kirkham v. Smith, 106 Wash. App. 177, 183
(2001) (justifiable reliance is an element of fraud claims brought under
Washington’s Franchise Investment Protection Act (“FIPA”)); Wash. Rev. Code
Ann. § 19.120.902 (describing the legislature’s intent that the GDBRA be
interpreted consistent with FIPA). Shalabi’s GDBRA claims, therefore, fail as a
matter of law because, as discussed above, Shalabi cannot show that he reasonably
relied on BP’s alleged misrepresentations.
AFFIRMED.
3
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00272-CV
James J. Crook, Appellant
v.
Donald J. Daniels, D.C.; Ameri-Span Chiropractic, P.C.; and
Ameri-Span Chiropractic-Airways, P.C., Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 96-02491, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
The issue in this case is whether a party who agrees to reschedule a trial for a non-jury
week waives his right to a jury trial. Appellant James J. Crook, a lawyer, appeals the trial court's denial
of his motion to strike jury setting and motion for new trial. Following a bench trial, the trial court rendered
judgment in favor of appellees. We will affirm.
BACKGROUND
Appellees Dr. Donald J. Daniels, Ameri-Span Chiropractic, P.C., and Ameri-Span
Chiropractic-Airways, P.C. filed a suit against Crook for the return of $47,055 in attorney's fees appellees
paid to Crook for legal services which he failed to perform. Appellees' petition alleged negligence,
violations of the Deceptive Trade Practices Act, breach of contract, breach of duty of good faith and fair
dealing, and fraud. A non-jury trial was originally set for October 28, 1996. On October 15, Crook filed
a request for a jury trial.
The case was announced but not reached on October 28. On that date, the parties agreed
to reset the trial for January 6, 1997, also a non-jury week. Appellees filed a Notice of Agreed Trial
Setting on November 7, 1996, scheduling the trial for January 6, 1997.
Crook sent a letter dated November 14, 1996 to the district clerk requesting that the case
be placed on the jury docket pursuant to his October 15 request for a jury trial setting. When he was
informed that he could not schedule the case for a jury trial without a hearing before the court, Crook filed
an original and amended motion to strike the non-jury setting. In an attached affidavit, Crook stated that
when he agreed to the January 6, 1997 trial date he was unaware that it was a non-jury week.
A hearing was held on the motion to strike on December 20. In response to the court's
questions at the hearing, Crook stated, "[w]e agreed to the January non-jury setting, but it was outside of
30 days of trial. It was back in early--it was back on October 28th or right around there." The trial court
subsequently denied Crook's motion, holding that he had agreed to a non-jury setting.
The case proceeded to trial before the bench on January 6, 1997. The trial court rendered
judgment in favor of appellees on January 23. On February 21, Crook filed a motion for new trial on the
ground that he was improperly denied his right to a jury trial. The motion for new trial was subsequently
denied.
DISCUSSION
In his first and second points of error, Crook contends that the trial court abused its
discretion in denying his motion to strike the January 6, 1997 non-jury setting. Specifically, he asserts that
his untimely request for a jury trial on October 15, 1996 became timely once the trial was rescheduled for
January 6, thereby creating a presumption which appellees failed to rebut. Crook further argues that the
trial court abused its discretion in holding that he had agreed to a non-jury setting because there was no
evidence of a Rule 11 agreement between the parties.
A request for a jury trial must be filed "a reasonable time before the date set for trial of the
cause on the non-jury docket, but not less than thirty days in advance." Tex. R. Civ. P. 216. If the
request is made more than thirty days before trial, it is presumed timely requested. See Halsell v.
Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991); Wittie v. Skees, 786 S.W.2d 464, 466 (Tex.
App.--Houston [14th Dist.] 1990, writ denied). To overcome the presumption, the adverse party must
show that "the granting of a jury trial would operate to injure the adverse party, disrupt the court's docket,
or impede the ordinary handling of the court's business." Id.
In Halsell, trial was set on the non-jury docket for September 8, 1989. The plaintiff did
not file his jury request until August 15, 1989, less than thirty days before trial. On September 8, the trial
court struck his request for a jury trial on the ground that it was not timely made, but at the same time reset
the case on the non-jury docket for trial on October 13. The court of appeals affirmed the trial court's
denial of plaintiff's request for a jury trial. The Texas Supreme Court reversed, holding that once the trial
court reset the case for October 13, plaintiff's request for a jury trial became timely. Id. Crook argues
that the same holds true in this case. When trial originally was scheduled for October 28, 1996, Crook's
October 15 request for a jury trial was untimely under Rule 216. However, when the case was reset for
January 6, 1997, Crook contends that his request became timely and the case was then required to be
moved from the trial court's non-jury docket to its jury docket. However, we note that, unlike Halsell,
after making an untimely request for a jury trial Crook agreed to set the case for a non-jury trial more than
thirty days later.
The supreme court in Halsell further held that the defendants failed to show that the
granting of the jury trial would have injured them or caused undue disruption to the trial court. Id. In this
case, however, the record contains evidence indicating that, at the very least, the trial court's docket would
have been disrupted by Crook's repeated change of position. This case was originally set for trial on the
non-jury docket. Less than two weeks before trial, Crook asked for a jury trial. When the case was not
reached, however, Crook agreed to a non-jury setting. More important, Crook's action in agreeing to a
non-jury trial after requesting a jury trial indicated to the court that he no longer wanted a jury. At the
hearing on his motion to strike the non-jury setting, Crook admitted that he agreed to reset the case for a
non-jury week. (1)
Crook argues that Rule 11 of the Texas Rules of Civil Procedure requires that an
agreement be in writing and that because the purported agreement to reset the trial for a non-jury week was
not in writing, it is not evidence sufficient to rebut the presumption of timeliness. Rule 11 provides:
Unless otherwise provided in these rules, no agreement between attorneys or parties
touching any suit pending will be enforced unless it be in writing, signed and filed with the
papers as part of the record, or unless it be made in open court and entered of record.
Tex. R. Civ. P. 11 (emphasis added). Appellees filed a written notice of agreed trial setting, and Crook
has never disputed that it accurately reflects their agreement. Further, the court specifically asked Crook
in open court whether he agreed to the January 6, 1997 trial date, and Crook conceded that he did.
Accordingly, we find that Crook waived his right to a jury trial by agreement. Points of error one and two
are overruled.
In his third point of error, Crook asserts that the trial court abused its discretion in denying
his motion for new trial based on his timely request for a jury trial. Having held that Crook waived his
request for a jury trial, we find no error in the trial court's denial of Crook's motion for new trial. Point of
error three is overruled.
CONCLUSION
Having overruled all points of error, we affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: July 30, 1998
Do Not Publish
1. Crook, who was pro se at the time he agreed to the resetting, asserts that he was not aware that
January 6, 1997 was a non-jury week. Pro se litigants are governed by the same rules as litigants who are
represented by an attorney. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). In
addition, we note that as an attorney, Crook is deemed to have knowledge of the local rules of the district
court.
1989, less than thirty days before trial. On September 8, the trial
court struck his request for a jury trial on the ground that it was not timely made, but at the same time reset
the case on the non-jury docket for trial on October 13. The court of appeals affirmed the trial court's
denial of plaintiff's request for a jury trial. The Texas Supreme Court reversed, holding that once the trial
court reset the case for October 13, plaintiff's request for a jury trial became timely. Id. Crook argues
that the same holds true in this case. When trial originally was scheduled for October 28, 1996, Crook's
October 15 request for a jury trial was untimely under Rule 216. However, when the case was reset for
January 6, 1997, Crook contends that his request became timely and the case was then required to be
moved from the trial court's non-jury docket to its jury docket. However, we note that, unlike Halsell,
after making an untimely request for a jury trial Crook agreed to set the case for a non-jury trial more than
thirty days later.
The supreme court in Halsell further held that the defendants failed to show that the
granting of the jury trial would have injured them or caused undue disruption to the trial court. Id. In this
case, however, the record contains evidence indicating that, at the very least, the trial court's docket would
have been disrupted by Crook's repeated change of position. This case was originally set for trial on the
non-jury docket. Less than two weeks before trial, Crook asked for a jury trial. When the case was not
reached, however, Crook agreed to a non-jury setting. More important, Crook's action in agreeing to a
non-jury trial after requesting a jury trial indicated to the court that he no longer wanted a jury. At the
hearing on his motion to strike the non-jury setting, Crook admitted that he agreed to reset the case for a
non-jury week. (1)
Crook argues that Rule 11 of the Texas Rules of Civil Procedure requires that an
agreement be in writing and that because the purported agreement to reset the trial for a non-jury week was
not in writing, it is not evidence sufficient to rebut the presumption of timeliness. Rule 11 provides:
Unless otherwise provided in these rules, no agreement between attorneys or parties
touching any suit pending will be enforced unless it be in writing, signed and filed with the
papers as part of the record, or unless it be made in open court and entered of record.
Tex. R. Civ. P. 11 (emphasis added). Appellees filed a written notice of agreed trial setting, and Crook
has never disputed that it accurately reflects their agreement. Further, the court specifically asked Crook
in open court whether he agreed to the January 6, 1997 trial date, and Crook conceded that he did.
Accordingly, we find that Crook waived his right to a jury trial by agreement. Points of error one and two
are overruled.
In his third point of error, Crook asserts that the trial court abused its discretion in denying
his motion for new trial based on his timely request for a jury trial. Having held that Crook waived his
request for a jury trial, we find no error in the trial court's denial of Crook's motion for new trial. Point of
error three is overruled.
CONCLUSION
Having overruled all points of error, we affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: July 30, 1998
Do Not Publish
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336 F.Supp. 175 (1972)
BAUMGOLD BROS., INC., et al., Plaintiffs,
v.
ALLAN M. FOX CO.EAST et al.,
and
United States of America, Defendants.
No. C 71-322.
United States District Court, N. D. Ohio, E. D.
January 19, 1972.
Ronald H. Isroff, Ulmer, Berne, Laronge, Glickman & Curtis, Cleveland, Ohio, for plaintiffs.
Leonard B. Scharfeld, Cleveland Heights, Ohio, for defendant.
Frederick Coleman, U. S. Atty., Donald Jaffe, Asst. U. S. Atty., for the United States.
*176 MEMORANDUM OPINION AND ORDER
BATTISTI, Chief Judge.
The United States has moved for reconsideration of the Court's denial of its motion to dismiss for lack of jurisdiction. Plaintiffs allege that this Court has jurisdiction between them and defendant Allan M. Fox CompanyEast on the basis of diversity (28 U.S.C. § 1332) and over the United States pursuant to the Tucker Act, 28 U.S.C. § 1346(a) (2). The question before the Court is whether it has jurisdiction to consider suit for breach of contract between private litigants and at the same time enlarge that dispute to encompass a suit against the United States.
In June of 1968 plaintiff mailed to defendant Fox two diamonds allegedly valued at $10,033.00. Prior to mailing them, the plaintiff insured them with the defendant United States against loss or damage in the amount of $8,000.00. The diamonds were allegedly lost either while in transit under the custody of the United States or subsequent to their delivery to defendant Fox. Plaintiffs, Baumgold and their insurer, Orion Insurance Company, and the representatives of underwriters at Lloyds, London, filed this action to recover against defendant Fox the sum of $10,033.00 or, in the alternative, to recover $8,000.00 from the United States. This claim against the United States, it should be noted, is in the alternative and is not derivative from or dependent upon plaintiffs' claim against defendant Fox.
The case against Fox falls within the diversity jurisdiction of the Court, while the claim against the United States is under the Tucker Act which affords concurrent jurisdiction to the district courts and the Court of Claims on claims under $10,000.00.
The United States is immune from suit except as it consents to be sued. United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194 (1877); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1939). The terms of its consent to be sued define the parameters of the Court's jurisdiction to entertain a suit. Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235 (1938) and cases cited. Section 2 of the Tucker Act, 28 U.S.C. § 1346(a) (2) confers jurisdiction on the district courts "concurrent with the Court of Claims of all claims not exceeding $10,000.00 founded . . . upon any contract . . . with the Government of the United States, or for damages . . . in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity or admiralty, if the United States were suable. . . ."
In suits for breach of contract, the Court of Claims has exclusive jurisdiction as to those of $10,000.00 or more. In addition,
". . . [i]t has been uniformly held, upon a review of the statutes creating the court (of claims) and defining its authority, that its jurisdiction is confined to the rendition of money judgments in suits brought for that relief against the United States, United States v. Alire, 6 Wall. 573 [18 L.Ed. 947]; United States v. Jones, 131 U.S. 1 [9 S.Ct. 669, 33 L.Ed. 90], and if the relief sought is against others than the United States the suit as to them must be ignored as beyond the jurisdiction of the court. United States v. Jones, supra; Lynn v. United States, [5 Cir.] 110 F.2d 586, 588; Leather & Leigh v. United States, 61 Ct.Cl. 388, or if its maintenance against private parties is prerequisite to prosecution of the suit against the United States the suit must be dismissed." United States v. Sherwood, 312 U.S. 584, 588, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941).
The United States contends that the Supreme Court in Sherwood, in addition, held that the Tucker Act did not confer jurisdiction on the District Court to consider suits against the United States in conjunction with suits between private litigants. Some courts have accepted *177 this reading of Sherwood. Lowe v. United States, 37 F.Supp. 817 (D.N.J. 1941); Fett Roofing & Sheet Metal Co. v. Seaboard Surety Co., 294 F.Supp. 112 (E.D.Va.1968); Cf. Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L. Ed.2d 671 (1962); United States v. United States Fidelity, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1938).
At first blush, a reading of Rule 20(a), F.R.Civ.P. would conscience joinder of the United States as a defendant along with another defendant in a situation such as is present here. Mr. Chief Justice Stone in Sherwood said:
"We think that the Tucker Act did no more than authorize the District Court to sit as a court of claims and that the authority thus given to adjudicate claims against the United States does not extend to any suit which could not be maintained in the Court of Claims. . . . The matter is not one of procedure but of jurisdiction whose limits are marked by the Government's consent to be sued. That consent may be conditioned, as we think it has been here, on the restriction of the issues to be adjudicated in the suit, to those between the claimant and the Government. The jurisdiction thus limited is unaffected by the Federal Rules of Civil Procedure [28 U.S.C.A. following section 723c], which prescribe the methods by which the jurisdiction of the federal courts is to be exercised, but do not enlarge the jurisdiction." United States v. Sherwood, 312 U.S. 584, 590-591, 61 S.Ct. 767, 771 (1941).
A district court always treats decisions of the United States Supreme Court, especially a decision by late Chief Justice Stone, with the utmost respect; yet this case is unusual in that circumstances have changed since 1941, and the case at bar is significantly different from Sherwood. The Court of Claims is no longer a legislative court, Ex parte Bakelite Corp., 279 U.S. 438, 452 et seq., 49 S.Ct. 411, 73 L.Ed. 789 (1928); H. Hart & H. Wechsler, The Federal Court and the Federal System 340-351 (1953), whose power was derived from the congressional power "to pay the debts . . . of the United States." The Supreme Court in Glidden Co. v. Zdanok et al., 370 U.S. 530, 82 S.Ct. 1459, 8 L. Ed.2d 671 (1962) held that the Court of Claims and the Court of Customs & Patent Appeals were Article III rather than Article I courts and affirmed the proposition that the District Court has concurrent jurisdiction under the Tucker Act over suits for fewer than $10,000.00. In spite of its "court of claims jurisdiction," the district court retains its own unique trappings and is obliged to follow its own procedure (the Federal Rules of Civil Procedure) rather than the practice and procedure of the Court of Claims, save and except the jury trial provision of the Seventh Amendment, which is not applicable to the Court of Claims or the District Court sitting as a "court of claims." McElrath v. United States, 102 U.S. 426, 26 L.Ed. 189 (1880); Williams v. United States, 289 U.S. 553, 570, 571, 53 S.Ct. 751, 77 L.Ed. 1372. See 3 Moore, Federal Practice, p. 20.07(3).
Sherwood was a case in which the New York Supreme Court authorized a judgment creditor (Sherwood) to sue under the Tucker Act to recover damages from the United States for breach of its contract with the judgment debtor (Kaiser). The state court directed that out of the recovery the judgment creditor should be entitled to a sufficient amount to satisfy this judgment with interest and costs. After Sherwood recovered $5,567.22 from Kaiser in state court, he brought suit in the District Court for Eastern New York for $10,000.00 against the United States. Chief Justice Stone pointed out that the federal suit could not have been maintained in the Court of Claims because "that court is without jurisdiction of any suit brought against private parties." While Sherwood indicates that the Court of Claims would not have jurisdiction over private parties as parties defendant, the facts in Sherwood indicate *178 that the case has an inherent difference from this case. The claims there were dependent rather than in the alternative. There, the suit in federal court was directly dependent on the result of the suit in state court. In the case at bar, either an employee of the United States mail did not deliver the diamonds or Fox lost them after receipt, or neither occurred. This is quite different from the situation in Sherwood. While containing what seems to be much relevant dicta, Sherwood is not directly on point.
One district court, immediately on the heels of Sherwood, however, applied that case to facts similar to the case at bar. In Lowe v. United States, 37 F.Supp. 817 (D.N.J.1941), a case relied on heavily by the United States, the plaintiff sued the Government under the Tucker Act for its failure to pay the agreed contract price for certain equipment which the Government rejected or in the alternative to recover from the defendant foundry company which had manufactured the equipment under a contract with plaintiff that it would meet the Government's specification. Professor Moore writes: "Procedurally this is a case where joinder is clearly justified and the United States should be subject to joinder." 3 Moore, supra, f.n. 35. See also, 2 Barron & Holtzoff (Wright), Section 533, text at footnotes 55-57 (1961). The Court in Lowe relied heavily on Sherwood and precluded joinder. However, Professor Moore went on to state that the case "should not be regarded as authoritative." 3 Moore, supra.
This Court is in agreement with Professor Moore. The theory and approach taken by the court in Lowe is unsound. It seems somewhat anomalous that this Court should be unable to maintain jurisdiction over all parties in one trial merely because they come into this Court under two different grants of jurisdiction when, as in the instant case, the liability is in the alternative. Either the diamonds were properly handled or they were not. Either they were received and lost by Fox or they were not. This is the type of situation handled daily by district courts across this nation. Since this Court finds Sherwood not to be controlling and Lowe as not authoritative, it can see no reason why this case should not fall within the provision of Rule 20(a), F.R.Civ.P.
Therefore, since this Court has jurisdiction over the claim of the United States and the claim against the other defendant, and it deems joinder to be proper under Rule 20(a), it shall not dismiss any part of this suit. As Professor Moore clearly states: "Even in Tucker Act cases the problem of joinder should not be embarrassed by any doctrine of sovereign immunity." 3 Moore, Federal Practice, p. 20.07(3), 2864-2869. See generally, Black, Suits against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L.Rev. 1060 (1946).
An additional factor is present in this case which weighs somewhat heavily in favor of joinder. Neither the plaintiff nor defendant Fox has made a jury demand. While sitting as a court of claims, it is well established, this Court is precluded from holding a jury trial. McElrath v. United States, supra; Williams v. United States, supra, 289 U.S. 570, 571, 53 S.Ct. 751 (1928); Ex parte Bakelite Corp., supra, 279 U.S. 453, 49 S.Ct. 411 (1932). Therefore, the entire case will be tried to the Court and no complex jury instructions need be given to charge the jury as to one defendant and not the other. The Court may hear all evidence as it relates to each and every defendant, decide who if anyone is liable, and then make an appropriate determination. This is in keeping with its role as a United States District Court and within the spirit of the Federal Rules. Therefore, the defendants' motion for reconsideration is denied. The motion of the United States to dismiss is denied.
It is so ordered.
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972 F.2d 346
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Stanley Titus AGACINSKI and Ina Agacinski, Plaintiffs-Appellants,v.Gerald M. ZAMBOROWSKI, Defendant-Appellee.
No. 91-1850.
United States Court of Appeals, Sixth Circuit.
Aug. 4, 1992.
Before BOYCE F. MARTIN, Jr. and SILER, Circuit Judges, and DOWD, District Judge.1
PER CURIAM.
1
The district court granted Gerald Zamborowski, the defendant, a directed verdict in this action on the grounds that the damages proven by Stanley and Ina Agacinski were speculative. The Agacinskis now appeal the district's court order. For the following reasons, we affirm the judgment of the district court.
2
In 1981, the Agacinskis entered into a business agreement with Harvey and Linda Collins, who were doing business as Floorcraft Floor Covering. Under the agreement, the Agacinskis agreed to give the Collinses the equity in a boat, which was valued at $13,100 and, in return, the Collinses agreed to give the Agacinskis a one-half interest in certain trucks and equipment that were related to a trucking operation. The Collinses and the Agacinskis also agreed to share in the profits and losses of the trucking operation.
3
Trouble began shortly after the joint venture went into operation. Although the Agacinskis had transferred their equity in the boat to the Collinses, the Agacinskis apparently never received the one-half interest in the trucks and equipment. Meanwhile, Stanley Agacinski worked for the Collinses delivering and installing floor covering and carpeting. Over a period of time, however, the Collinses underpaid Stanley Agacinski by $12,000 and asserted that the $12,000 was going toward the joint venture. In 1983, the Collinses brought an action in Michigan state court against the Agacinskis asserting that the trucking business had lost money and that the Agacinskis had to contribute their fair share of the losses. The Agacinskis hired Zamborowski to defend them in the action and to file a counterclaim against the Collinses.
4
While the action was pending in state court, the Collinses and the Agacinskis tentatively agreed to settle the case. Under the proposed agreement, the Collinses agreed to dismiss their lawsuit in its entirety and pay the Agacinskis $1,200. The parties, however, never finalized the proposed settlement. While Zamborowski was on vacation, the Collinses returned to state court and obtained two default judgments against the Agacinskis. The first default judgment caused the Agacinskis to lose their boat, which was worth approximately $13,000. The second default judgment was a money judgment that was valued $13,352.93 at time of execution. When Zamborowski returned from his vacation, he learned of the Collinses' action. Zamborowski wrote a letter to the opposing attorney and stated that he was surprised the Collinses would "throw away the opportunity to settle my client's counter-claim for the return of thousands of dollars of embezzled funds by the payment of a mere $1200.00." Zamborowski also threatened he would file a motion to set aside the default judgments and would ask the court to allow him to file a delayed answer and counter-complaint. Despite these threats, however, Zamborowski never took any such action related to the case.
5
As a result of the $13,352.93 default judgment, the Collinses placed a lien against the home owned by the Agacinskis. When the Agacinskis sold their home in October 1986, the title insurer failed to discover the existence of the lien and therefore had to pay the Collinses approximately $13,000. The title insurer, in turn, obtained a judgment against the Agacinskis for the amount it paid the Collinses.
6
On April 12, 1989, the Agacinskis filed this action in federal district court asserting that Zamborowski was professionally negligent in his representation of them in the state court action. On May 3, 1990, the district court determined that Zamborowski had failed to answer the requests for admissions in a timely manner and therefore under Fed.R.Civ.P. 36 the requests were automatically admitted. Based on this determination, the district court granted the Agacinskis a partial summary judgment and held that (1) Zamborowski negligently handled the Agacinskis' state court litigation; and (2) Zamborowski's negligence proximately caused the Agacinskis' injuries. Because the district court granted summary judgment on the liability issue, the court concluded the only issue remaining for trial was the issue of damages. Subsequently, the issues for trial were further narrowed when, just prior to the damages trial, Zamborowski agreed to settle the damages related to the lien placed on the Agacinskis' home.
7
At the damages trial, Stanley Agacinski testified that the Agacinskis never received from the Collinses the one-half ownership interest in the trucking equipment in exchange for the Agacinskis' boat. He also testified that while he was working for the Collinses, they had underpaid him by approximately $12,000. Finally, Stanley Agacinski admitted, in effect, that (1) the Agacinskis' damages were tied to the question of whether the Agacinskis owed money to the Collinses, or vice versa; and (2) it was totally speculative as to which party owed the other party money.
8
At the conclusion of the Agacinskis' case, Zamborowski moved for, and received, a directed verdict on the damages issue. In granting the directed verdict, the district court stated from the bench:
9
Mr. Agacinski in his testimony which the Court had reread to it in chambers by the court reporter said that he did not know whether the joint venture with the Collinses experienced a profit or a loss. Plaintiffs have introduced no other evidence to show that the joint venture made a profit and the Court believes it would be speculative to permit the jury to presume that the joint venture made a profit.
10
Moreover, the court will say all of the damages claimed by the plaintiff in this Court's opinion are damages resulting from the breach of the contract which created the joint venture....
11
The Court now therefore grants a directed verdict on the remaining portion of the claim in favor of the defendant because the Court feels the plaintiffs have failed in their proofs.
12
On June 19, 1991, the district court entered an order granting Zamborowski's motion for a directed verdict.
13
On appeal, the Agacinskis assert that the district court erred in granting Zamborowski a directed verdict on the damages issue.2 They assert that even though the profits and losses associated with the trucking business were speculative, there was nothing speculative about the value of the boat they lost in the default judgment or about the $12,000 that the Collinses withheld from Stanley Agacinski's wages.
14
Initially, we note that in analyzing the motion for a directed verdict the district court stated that federal law, not Michigan law, provided the standard for a directed verdict. The district court also stated that the federal standard for a directed verdict was the same as the Michigan standard. The district court, however, was incorrect in its assertion that federal law provided the standard for a directed verdict in the case before the court. A federal court exercising its diversity jurisdiction, such as in this case, applies the standard for a directed verdict used by the courts of the state whose substantive law governs. Arms v. State Farm Fire & Casualty Co., 731 F.2d 1245, 1248 (6th Cir.1984). Because Michigan law provides the substantive law in this case, we apply the Michigan standard for directed verdicts. In deciding whether or not to grant a motion for a directed verdict, a Michigan court must accord to the non-moving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the non-moving party. If the evidence, when viewed in this manner, establishes a prima facie case, then the court must deny the motion for a directed verdict. Beard v. Detroit, 404 N.W.2d 770, 774 (Mich.App.) ( quoting Caldwell v. Fox, 394 Mich. 401 (1975)), appeal denied, 428 Mich. 901 (1987); Thomas v. McPherson Community Health Center, 400 N.W.2d 629, 630 (Mich.App.1986). Thus, although the district court was incorrect about the source of the directed verdict standard, it was correct in its assertion that the Michigan standard for directed verdicts is essentially the same as the federal standard. See, e.g., Lewis v. Irvine, 899 F.2d 451, 454 (6th Cir.1990) (in a case involving the federal standard, the court stated that (1) in reviewing a motion for a directed verdict, a court must determine whether there is substantial evidence from which the jury could find in favor of the non-moving party; and (2) this must be done without weighing the credibility of the witnesses or considering the weight of the evidence). In reviewing a trial court's action on the motion for a directed verdict, an appellate court must determine whether a reasonable jury could have found in favor of the non-moving party. See Rushing v. Wayne County, 462 N.W.2d 23, 28 (Mich.1990), cert. denied, 113 L.Ed.2d 245 (1991).
15
Under Michigan law, in order for a plaintiff to establish a claim of attorney negligence or malpractice, the plaintiff must prove:
16
(1) the existence of the attorney-client relationship;
17
(2) the acts that are alleged to have constituted the negligence;
18
(3) the attorney's negligence was the proximate cause of the injury; and
19
(4) the fact and extent of the injury alleged.
20
Basic Food Industries v. Grant, 310 N.W.2d 26, 28 (Mich.App.1981). Before trial, the district court in this case held that (1) Zamborowski negligently handled the Agacinskis' state court litigation, and (2) his negligence was the proximate cause of the Agacinskis' injuries.3 Thus, the first three elements of a legal malpractice claim were established before trial and they remain established on appeal. Hence, the center of dispute is really whether a reasonable jury could have found that the Agacinskis established the remaining element--the fact and extent of the injury.
21
In this case, we believe the district court correctly granted a directed verdict to Zamborowski. At trial, Stanley Agacinski testified, in effect, that (1) the damages amounts were tied to the question of whether the Agacinskis owed the Collinses money over the trucking business, or vice versa; (2) it was totally speculative as to which party owed the other party money; and (3) he had disposed of many of the documents related the business venture. Viewing this and the remaining evidence in a light most favorable to the Agacinskis, we believe there was insufficient evidence to establish a prima facie case regarding the extent of the damages that were attributable to Zamborowski's negligence. Even though the Agacinskis may have established the value of the boat and the value of the withheld wages, any damages were inextricably linked to the profits and losses of the trucking business. In other words, the damages associated with the Agacinskis' malpractice claim really turn on whether, in the underlying suit, the Collinses would have owed the Agacinskis money, or vice versa. Without knowing what the profits and losses of the trucking business were, it would be impossible for a reasonable jury to calculate--without mere speculation--the extent of the Agacinskis' injury. Proof of damages must be based on factual evidence, not on mere speculation. Basic Food Industries, 310 N.W.2d at 30 n. 2. Thus, the district court did not err in granting a directed verdict to Zamborowski.
22
For the foregoing reasons, we affirm the judgment of the district court.
1
The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation
2
Effective on December 31, 1991, Fed.R.Civ.P. 50 eliminated the term "directed verdict" and replaced it with the term "judgment as a matter of law." At the time the parties tried this cased, however, Rule 50 still used the term "directed verdict."
3
Zamborowski does not challenge these findings
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521 So.2d 942 (1988)
C.C. CORNELIUS, Jr., et al.
v.
Alvin GREEN, et al.
85-1132, 86-37.
Supreme Court of Alabama.
February 12, 1988.
*943 Walter W. Kennedy III and Hugh A. Nash of Nash & Walker, Oneonta, and Thomas L. Rountree, Auburn, for appellants.
Jack Martin Bains, Oneonta, for appellees.
Robert C. Tinsley, pro se.
PER CURIAM.
These appeals arise out of the case that was the subject of Cornelius v. Green, 477 So.2d 1363 (Ala.1985). After the decision in that case, the Corneliuses filed a complaint seeking damages for trespass to the land as to which the prior judgment had granted them an easement. The trial court granted a summary judgment for the defendants (the Greens and the Tinsleys). That judgment is the subject of appeal # 86-37. The Greens and the Tinsleys filed amended motions for relief from judgment, whereupon the trial court granted relief, the effect of which will be described below. The Corneliuses' appeal from that judgment is case # 85-1132.
Case # 86-37 is readily decidable on the principles of res judicata. The original complaint filed by the Corneliuses sought the declaration of a right-of-way across the Greens' and Tinsleys' land to the Corneliuses' landlocked property, and prayed "for such other, further, different, or additional relief to which they may be entitled." The court declared a right-of-way and ordered the Greens and Tinsleys to remove their fences blocking the right-of-way. The complaint that is the subject of appeal # 86-37 seeks damages for trespass for the unlawful interference with the Corneliuses' use of the right-of-way from December 1979, the date of the original complaint, to June 1984, the date of the final judgment from which the prior appeal was taken.
This suit for damages is clearly barred by res judicata:
"Res judicata requires (1) a prior judgment rendered by a court of competent jurisdiction: (2) a prior judgment rendered on the merits; (3) substantially the same parties in both suits; and (4) the same cause of action in both suits. Where these elements are present, the former suit bars any later suit on the same cause of action, including issues that were or could have been litigated in the prior case."
Lott v. Toomey, 477 So.2d 316, 319 (Ala. 1985) (emphasis added).
The first three elements are unquestionably present here. The Corneliuses argue that the fourth is not, because they could not have sued for damages for interference with their right-of-way until after it was declared. This argument overlooks the fact that, on October 12, 1982,[1] they filed *944 "a petition alleging that the defendants were in contempt of court," Cornelius v. Green, supra, at 1364. Because the original complaint prayed for other relief to which the Corneliuses might be entitled, and because of the merger of equity and law jurisdiction, the damages now sought "could have been litigated in the prior case."
The appeal in case #85-1132 is more complex, and some reiteration of the facts stated in the prior opinion will be necessary (see that opinion for a fuller rendition). On November 19, 1981, the court declared the existence of an easement and ordered the fences removed; on May 25, 1982, the court declared that the easement extended 15 feet on either side of the centerline; on December 3, 1982, the defendants filed a "petition" to have the easement width changed from 30 to 12 feet; and on January 4, 1983, the court modified the easement to 15 feet. This Court held that the December 3 "petition" was in actuality an untimely Rule 59(e), A.R.Civ.P., motion that should have been denied because of its untimeliness. In the course of its discussion, this Court held that "even if the trial court could have properly considered the defendants' petition as a Rule 60(b) motion, it could not have characterized it as a 60(b)(6) motion," 477 So.2d at 1365, because the ground for relief could have been raised in a Rule 59(e) motion, a Rule 60(b)(1) motion, or on appeal.
The relief granted after the first appeal was in response to three motions: an "amendment to motion for relief from judgment" filed by Alvin Green on October 22, 1985, stating that there was a clerical error in the width of the right-of-way set out in the judgment and requesting relief under Rule 60(a); a "motion to establish right-of-way and to correct judgment" also filed by Green on the same day, seeking relief under Rule 60(b)(6) because the judgment establishing the 30-foot right-of-way was not supported by any evidence and would work a great hardship upon Green; and a "motion for relief from judgment" filed by the Tinsleys on October 29, 1985, also seeking 60(b)(6) relief on the ground that, although there was evidence to support a 15-foot right-of-way, there was no evidence to support a 30-foot right-of-way.
The court held a hearing on these motions and entered an order setting forth the history of the case, including a full quotation of its original order issued on November 19, 1981. The court stated:
"This Court is completely unaware as to how the figure of fifteen feet on either side of the center line of the easement got into the order of this Court on the 25th day of May, 1982, due to the fact that there was no evidence before the Court as to a thirty foot right of way. This Court was unaware of such error until it was called to the attention of this Court by a pro se petition filed by one of the defendants, Robert C. (Hap) Tinsley on December 3, 1982.
"This Court did attempt to correct the error or mistake on the part of this Court by decree entered on the 4th day of January, 1983, and quoted from the decree initially entered by this Court on the 19th day of November, 1981, pertaining to the right of way as located and `visible on the ground.' The Supreme Court of Alabama did on October 15, 1985, enter a decree reversing the decree entered by this Court on the 4th day of January, 1983."
The court concluded:
"The defendants contend that this matter should be resolved by this Court under provisions of Rule Number 60(a), Alabama Rules of Civil Procedure, due to the fact that the error in the decree arose from oversight or omission. This Court is of the opinion that there is merit in the arguments of the defendants and that the error in the decree was a result of oversight or omission on the part of this Court. Due to mandate by the Supreme Court, this Court does hereby set aside the judgment or decree of this Court entered on the 4th day of January, 1983.
"This Court finds that the final decree of this Court entered on the 19th day of November, 1981, is still the decree of this Court. If said decree is not allowed to stand, there would be a fundamental miscarriage *945 of justice and the defendants in this case would be deprived of property without just compensation in violation of the Constitutions of the State of Alabama and the United States."
It is clear from this order that the trial court was merely revisiting the motions that this Court held in the prior appeal to have been untimely filed. Although Rule 60(a) states that a court may correct a clerical mistake or an error arising from oversight or omission "at any time," this does not authorize a second review of a judgment as to which prior post-judgment motions on the same point have been made and held to be untimely.
Furthermore, the right to amend a judgment to correct a clerical error does not authorize the court to render a different judgment. Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979). The committee comments to Rule 60(a) state:
"This subdivision deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced."
The Court of Civil Appeals paraphrased this language in reaching a holding to the same effect. Carries v. Carnes, 365 So.2d 981 (Ala.Civ.App.1978), cert. denied, 365 So. 2d 985 (Ala.1979). See also Mayer v. Mayer, 491 So.2d 249 (Ala.Civ.App.1986).
We note that the complaint sought a 30-foot right-of-way. An affidavit filed by the Corneliuses' attorney stated that the trial court specifically ordered a 30-foot right-of-way to be included in the May 25 order. Even outside of these indications that the error was not a clerical one, the halving of the width of the right-of-way is clearly a matter of substance and cannot be done pursuant to a Rule 60(a) motion. Therefore, the judgment made the subject of appeal in case # 85-1132 is reversed and judgment is rendered for the Corneliuses, reinstating the judgment as it existed after the decision in the first appeal.
86-37AFFIRMED.
85-1132REVERSED AND JUDGMENT RENDERED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
BEATTY and HOUSTON, JJ., concur specially.
BEATTY, Justice (concurring specially).
I concur in the majority's opinion in appeal 85-1132 because, apparently, in determining that its prior judgment was "erroneous," the trial court actually viewed the property again before "correcting" its prior judgment. Thus, the trial court's "correction" of its prior judgment was more than a mere correction of a "clerical" error as contemplated by Rule 60(a), A.R.Civ.P. It was in fact a change based on the substance of the evidence.
As for appeal 86-37, I agree that the Corneliuses' action for trespass is barred by res judicata, but only as to those damages that had accrued up to the time judgment was entered in the last contempt action filed by the Corneliuses. The justification for holding that the Corneliuses' trespass action for those damages is barred by res judicata is found in this Court's opinion in Lesley v. City of Montgomery, 485 So.2d 1088 (Ala.1986).
In Lesley, the plaintiff filed his first action seeking a preliminary injunction to halt the City's reconstruction of a bridge, which entailed the construction of a retaining wall in front of plaintiff's business. The plaintiff claimed that the retaining wall would interfere with his right of access to his business. After a hearing on the merits, the trial court denied preliminary injunctive relief, ruling that plaintiff had no property rights in the parking places that construction of the retaining wall would interfere with. The appeal from the trial court's order was dismissed, but, thereafter, plaintiff brought a second action seeking damages for interference with his right of access to his business. We affirmed the trial *946 court's dismissal of plaintiff's second action on the ground that it was barred by the doctrine of res judicata. In so doing, we held that both actions were for the same cause:
"Lesley first contends that the same cause of action was not present in both suits because the first suit sought injunctive relief pending a final determination of the legal rights of the parties, while the second suit sought damages for the diminution of the value of the property, for lost profits, and for the loss in value of his business. We disagree.
"...
"[W]hether the same cause of action is presented in successive suits depends on whether the act of the defendant is the same in each case, and whether the same evidence would support a recovery in both suits.
"Clearly, the defendants' act that Lesley contends is wrongful, namely, constructing a retaining wall, is the same in both suits. Further, in his action for an injunction, Lesley alleged that his right of access to his business would be interfered with if the wall was built. In his second suit, he contends that this same act of interference has caused him damages. The mere fact that the relief sought varies in the two cases, one injunctive and the other monetary, does not mean that there are separate causes of action in the two cases.
"...
"Nothing prohibited Lesley from asserting his claim for damages in his suit for the preliminary injunction. Since the act complained of is the same in both suits, and the evidence presented would be the same, the trial court was correct in holding that the cause of action was the same in both actions."
485 So.2d at 1090-92.
The posture of these cases is quite similar to those in Lesley, and without question Lesley would control had the Corneliuses first filed an action for trespass wherein, as part of their prima facie case, they would have had to establish their property/possessory interest in the land in question. In that situation, had the trial court ruled adversely to the Corneliuses as to their requisite interest in the land, they could not have thereafter sought a declaration that they have a right-of-way easement in the property. Conversely, had the Corneliuses prevailed in their trespass action filed first, the Greens could not have thereafter, in a subsequent action, challenged the Corneliuses' requisite interest in the property.
If res judicata would have barred the Corneliuses' actions if filed in reverse order, it must bar the actions in the sequence in which they were filed.
HOUSTON, J., concurs.
NOTES
[1] We have inspected the record in the prior appeal to find this date, not reported in the prior opinion. That record further shows that the petition sought attorney fees and other relief; that the contempt order of January 4, 1983, imposed a $50 per day fine until the fence was removed; and that the Corneliuses filed a "motion to enter judgment" on October 28, 1983, requesting imposition of the fine for the still-continuing obstruction. At any of these times, and up until the court entered its "decree on motion for relief from judgment" on June 12, 1984, the Corneliuses could have requested the relief in damages that they now seek.
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325 P.2d 437 (1958)
L.D. MOORE and Genevie Moore, Plaintiffs in Error,
v.
John R. EMERSON, Defendant in Error.
No. 37863.
Supreme Court of Oklahoma.
May 6, 1958.
Shidler & Threadgill, by William J. Threadgill, Tulsa, for plaintiffs in error.
Primus C. Wade, Tulsa, for defendant in error.
*438 WILLIAMS, Justice.
This action was brought by L.D. Moore and Genevie Moore, hereinafter referred to as plaintiffs, against John R. Emerson, hereinafter referred to as defendant, to obtain an accounting for rents and profits allegedly received by defendant in connection with certain real property.
Plaintiffs' petition alleges in substance, that on March 11, 1952, plaintiffs and defendant entered into a contract in writing whereby defendant sold and plaintiffs purchased certain real property in the City of Tulsa, Oklahoma, for a total price of $11,000, payable $1,500 in cash and $100 per month on the 10th day of each month thereafter; that plaintiffs have complied with said contract by paying $1,500 cash and by other performance later set out; that at the same time and place and as a part and parcel of the same transaction, plaintiffs and defendant entered into an additional agreement in writing whereby defendant was to retain possession and control of such property for the purpose of renting the same and applying the rents and profits according to the terms of such agreement; that such agreement is ambiguous in that it does not clearly reflect the intention of the parties; that the agreement was that defendant was to manage and control such property and guaranteed the plaintiffs the minimum sum of $100 per month which in turn defendant was to apply upon the monthly payments due upon the first mentioned contract of sale, with any amounts received above $100 to be divided between the parties; that since the date of said agreement and contract of sale defendant has retained possession of the premises and rented the same and received the rents and profits therefrom but has refused to account to plaintiffs therefor even though plaintiffs have made demand upon defendant to account to them for the rents and profits and the manner in which said sums have been *439 disbursed. Copies of both of the written agreements referred to in the petition are attached thereto. The contract of sale provides, insofar as pertinent here, that plaintiffs were to pay to defendant the sum of $100 per month on the 10th day of each and every month until the purchase price be paid in full, with interest at the rate of 6% per annum, and that plaintiffs were to pay all taxes coming due after the date of the contract, and that in the event of their failure to do so, defendant might pay the same and add such sums so paid by him to the amount remaining due under the contract. The other written agreement referred to by the parties as a "side" agreement, is as follows:
"This agreement made and entered into this 11th day of March, 1952, by and between L.D. Moore, party of the first party (sic), and John R. Emerson, party of the second part, Witnesseth: That said second party will garntee (sic) the first party from profits from said building one-third of all profits, and apply same on the purchase price of said contract, giving said L.D. Moore credits from profits thereafter.
"It is further understood that should 2nd party furnish said building of his own accord, the first party agrees to purchase said furnitures and fixtures upon taking possession of said building, will purchase said furnitures and fixture (sic) for a reasonable price, appraised by disinteresting (sic) parties.
"The second party agrees to pay said second (sic) party for use of said building $100.00 per month during his occupency (sic) of said building."
Defendant filed an answer and cross-petition admitting the execution of the written contract of sale and the payment of $1,500 as down payment thereon and that the balance due thereon in the sum of $9,500 was to be paid at the rate of $100 per month; alleging that plaintiffs had paid no part of the succeeding payments due under the contract and had defaulted in making any payments subsequent to the initial payment of $1,500; alleging that since the execution of the contract defendant has been in possession of the property and has collected rentals from different tenants in the total amount of $3,384 but has expended for material, repair and labor, and ad valorem taxes upon the premises, the sum of $2,314.59; that plaintiffs are therefore in arrears under the contract in the amount of $1,916, exclusive of interest which at the rate of 6% would make the total arrearage the sum of $2,422.50; and prays that the court order plaintiffs to pay into court the sum of $2,422.50 in order to put the contract of purchase in good standing, and, if plaintiffs should fail to so do, for cancellation of the contract and restitution of the premises. Plaintiffs filed a reply and answer to cross-petition in the form of a general denial.
A trial was had to the court, at which time the court held that the written contracts were not ambiguous, excluded certain evidence offered by plaintiffs on the grounds that the same constituted an attempt to vary the terms of a written contract by oral testimony, and ordered an accounting to be had to determine whether or not defendant owed plaintiffs anything that should be applied on the contract of sale. After hearing was had upon the accounting feature of the case, the court entered judgment for the defendant in which the court found that the contract of sale had been entered into and the down payment of $1,500 made as pleaded; that after the initial down payment above referred to plaintiffs had made no further payments in cash, but that the defendant, having been given the privilege to collect the rents under the "side" agreement herein, had collected over the subsequent period the sum of $3,634, which the court allowed as payments upon the purchase price of the property; that there was then due and unpaid, including interest, the sum of $8,596.50; that under the contract of sale defendant was entitled to a 10% attorney's fee in the amount of $859.65; that under the contract of sale, plaintiffs were to have paid all subsequent taxes due upon the property but had failed to do so, and that defendant had paid *440 taxes, penalty and interest in the total amount of $649.16; that defendant had been compelled to pay for the upkeep and improvement of the premises, the sum of $1,875.98. The court then ordered and decreed that defendant have and recover from plaintiffs, the sum of $11,981.29; that the property involved be sold, with appraisement, and the amount realized from such sale applied to the payment of the costs of the action, the payment of taxes, if any, and the payment of the amount due defendant in the sum of $11,981.29; that from and after the sale of said property, plaintiffs herein be barred and foreclosed of and from any and every lien upon, or right, title, interest, estate or equity in or to said property.
Plaintiffs' motion for new trial was overruled, and they have perfected this appeal.
As their first proposition of error, plaintiffs assert that they were entitled to show as a matter of law, a contemporaneous partly oral and partly written contract providing for the payment of purchase price of the property, and that the court therefore erred in sustaining defendant's objection to the introduction of certain testimony by plaintiffs, which testimony was offered to prove an oral agreement for a method of payment. Plaintiffs' second proposition of error, which is that the written "side" agreement is ambiguous on its face and that the court therefore erred in holding the written "side" agreement unambiguous, is necessarily involved in the consideration of the first proposition, and the two will therefore be considered together.
The written "side" agreement referred to has already been hereinabove set out in full. Examination of such agreement reveals the same to be both ambiguous and incomplete. The subject matter of the agreement appears to be a building, identified only as "said building". The identity or location of the building involved cannot possibly be determined from the face of the instrument. The agreement only contains three provisions, the first of which is that second party guarantees first party 1/3 of the profits from "said building" and will apply same on the purchase price of "said contract". We know from the pleadings, admissions and stipulations of the parties, and the tendered evidence in this case that the "said contract" referred to in such provision, is the contract of sale between the parties hereinabove referred to, but such face cannot be determined from the face of the written "side" agreement. In what manner and over what period of time is the profit referred to in the first provision to be determined? Is the cost of repairs to the building to be considered in determining the amount of the profits referred to in such provision? Is the cost of furnishings or fixtures to be considered in determining the amount of such profits? Are the costs of improvements or additions to the property and of taxes assessed against the property to be considered in determining the amount of profits? Is it the duty of second party to make the necessary repairs to the property, or is it the duty of first party to make such repairs? The answers to these questions cannot be found on the face of the written "side" agreement. The second provision of the "side" agreement merely refers to the purchase by first party of furnishings and fixtures placed in the building by second party of his own accord and does not appear to have any bearing upon any of the issues in this case. The third and last provision of the side agreement merely provides that second party (defendant) agrees to pay $100 per month for the use of said building during his occupancy thereof. This particular provision does seem to be relatively clear and unambiguous, but appears to have been overlooked by the trial court in making the accounting between the parties. No other provision whatsoever are to be found in such "side" agreement and the same is therefore obviously incomplete.
The testimony offered by plaintiffs and rejected by the court was not of such nature as to constitute an attempt to contradict or vary the terms of either of the written agreements pleaded. The gist of the testimony offered was that the "side" agreement and the contract of sale were executed *441 contemporaneously and as a part and parcel of the same transaction and that the property referred to in the "side" agreement was the same as that described in the contract of sale; that it was orally agreed that defendant should assume control and management of the property involved; that any rent in excess of $100 per month collected by defendant should be divided 1/3 to plaintiffs, 1/3 to defendant as his pay for handling the property, and the other 1/3 to be used to pay for the necessary repairs and expenses of the property.
While parol testimony is inadmissible to change or contradict the terms of a written contract, yet a parol contract may be made between the parties contemporaneously with the execution of the written agreement, providing it is separate and independent, and its terms are in no way in conflict with or contradictory to the written stipulation. Mackin v. Darrow Music Co., 69 Okl. 1, 169 P. 497. And where a writing or memorandum of contract does not purport to disclose the complete contract, or if, when read in the light of attendant facts and circumstances, it appears to contain only part of the agreement entered into by the parties, parol evidence is admissible to show what the rest of the agreement was; but such parol evidence must not be inconsistent with or repugnant to that part of the agreement integrated in the writing or memorandum, for, where a contract rests partly in parol, that part which is in writing is not to be contradicted. Ross v. Stricker, Okl., 275 P.2d 991; First National Bank in Tonkawa v. Beatty, 172 Okl. 47, 45 P.2d 158; Holmes v. Evans, 29 Okl. 373, 118 P. 144. Also, where from an examination of a written contract in its entirety, the intent of the parties thereto is obscure and uncertain, resort may be had to parol evidence to show the situation of the parties, circumstances surrounding the execution of the contract, and the negotiations preceding and leading up to the making of the agreement, in order to arrive at the contract's true intent and meaning. Owens v. Automotive Engineers Inc., 208 Okl. 251, 255 P.2d 240.
We are of the opinion and hold that plaintiffs' first two propositions of error are well taken and that the court erred in holding the written "side" agreement to be unambiguous and in sustaining defendant's objection to the introduction of certain testimony by plaintiffs.
As their third and last proposition of error, plaintiffs assert that they were entitled to credit at the rate of $100 per month upon the contract of sale from the 10th day of April, 1952, until judgment, which credit the court failed to allow, and that the court therefore erred in the amount of recovery assessed in favor of defendant and against plaintiffs. This proposition likewise appears to be well taken. As already pointed out, the written "side" agreement provides that defendant pay the sum of $100 per month for the use of the property involved during his occupancy thereof. Defendant's answer asserts and the evidence establishes that defendant has had possession of the property involved at all times since the execution of the two contracts hereinabove referred to. The court allowed plaintiffs credit on the contract of sale only for the amount of the rent actually collected by defendant during this time, which was a considerably smaller amount than the sum of $100 a month during the same period of time.
The judgment is therefore reversed and the cause remanded with instructions to grant plaintiffs a new trial and to proceed in accordance with the views hereinabove expressed.
CORN, V.C.J., and HALLEY, JOHNSON, BLACKBIRD and JACKSON, JJ., concur.
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539 U.S. 949
Kingv.Kelchner, Superintendent, State Correctional Institution at Muncy, et al.
No. 02-10510.
Supreme Court of United States.
June 23, 2003.
1
Appeal from the C. A. 3d Cir.
2
Certiorari denied.
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146 Ind. App. 369 (1970)
255 N.E.2d 684
PONTIOUS
v.
LITTLETON.
No. 569A77.
Court of Appeals of Indiana.
Filed March 4, 1970.
*370 Miller, Tolbert & Hirschauer, Logansport, for appellant.
William Morris and Lawrence M. Brown, both of Rochester, for appellee.
LOWDERMILK, C.J.
This is an action brought by the appellee, plaintiff below, against appellant, defendant below, for property damage to appellee's automobile and house trailer which were damaged as a result of appellant's striking appellee's automobile in the intersection of Fulton and Ninth Streets in the City of Rochester, Indiana, and which collision resulted in the overturning of both of appellee's vehicles.
The issues were formed by appellee's complaint and appellant's answer thereto under Supreme Court Rule 1-3A.
Appellee in his complaint alleged certain negligent acts of appellant for the proximate cause of the collision and damage complained of, namely (a) the defendant carelessly and negligently failed and refused to yield the right-of-way when he entered the intersection; (b) defendant was driving at the unlawful rate of speed of 50 miles per hour; (c) the defendant negligently failed to keep and maintain a look-out for other people and automobiles properly and lawfully using the streets, including the plaintiff; and (d) the defendant failed to have and keep his automobile under control so as to be able to bring it to a stop in order to avoid the collision with others who might be lawfully using said intersection.
On the trial of the cause appellant, for his defense, relied *371 on the contributory negligence of appellee by reason of appellee's violation of the yield-right-of-way statute.
Appellant also filed a counterclaim on which the court timely rendered a judgment against appellant. No issue on the ruling on the counterclaim adverse to appellant was raised in his motion for a new trial and it is, therefore, not before this court to be considered on this appeal.
Briefly, the facts are that on October 3, 1965, appellee was driving his motor vehicle with house trailer attached thereto, of the overall length of approximately 25 to 30 feet, west on Ninth Street in Rochester, Indiana. Appellant was operating his motor vehicle south on Fulton Street in said city.
Fulton Street was a preferential street and the two streets intersected in a residential section of the city and there was a "yield" sign on Ninth Street, facing traffic approaching Fulton from Ninth.
The intersection was unobstructed. Appellee testified that he saw the yield sign as he approached Fulton Street at a speed of 10 to 15 miles per hour and looked in both directions, but did not see appellant's automobile approaching on Fulton Street. He further testified that in obedience to the sign he slowed to approximately 5 miles per hour and without stopping continued into the intersection at such speed of about 5 miles per hour. He had driven his automobile approximately two-thirds of the way across the street intersection when his automobile was struck on the right front door by appellant's automobile, traveling south on Fulton Street.
Appellant was driving at a speed of 50 miles per hour and there was evidence that he did lay down some skid marks just at the point of impact. Appellee never attempted to stop, and claimed that he did not see appellant's automobile until just prior to the impact, and claimed that he saw appellant's automobile 10 to 20 feet away and did not attempt to stop or turn his automobile, but hung tighter onto the steering wheel.
The impact resulted in the turning over of appellee's vehicles, *372 damaging the automobile in the amount of $1,658.84 and the house trailer in the amount of $1,916.44.
The cause was tried to the court, without a jury, by agreement, and the court found for appellee on his complaint and against appellant, and awarded appellee $3,578.28 damages, on February 4, 1969.
Appellant timely filed his motion for new trial, together with memorandum in support thereof. The grounds of said motion for new trial were (1) the decision of the court is not sustained by sufficient evidence, and (2) the decision of the court is contrary to law.
The motion for new trial was overruled by the court and thereafter appellant filed his transcript and assignment of errors with this court. The only assignment of errors is that the court erred in overruling appellant's motion for new trial.
Appellee testified on cross examination that he had good vision to his right that he saw the yield sign which was back far enough from the intersection that a person going the normal rate of speed would be able to stop.
Robert Strong, a member of the police department of the City of Rochester, estimated the speed of appellant's automobile at approximately 50 miles per hour in a zone posted with a speed limit of 30 miles per hour. He further testified that he issued traffic violation tickets to both parties. He issued to appellant a traffic ticket for unreasonable speed and to the appellee for failure to yield the right of way. Appellant entered a plea of guilty to the charge filed against him and paid a fine of $1.00 and costs; appellee's charge was later dismissed, with no further action.
Nancy Cripe, a passenger in appellant's automobile at the time of the accident, testified that she was riding in the front seat, that they turned at Seventh Street onto Fulton Street, and traveled south on Fulton Street. She further testified that the first time she saw the automobile and trailer driven by appellee was when it started out into the intersection; that *373 she was looking ahead and that her best estimate of the appellant's speed was that they were speeding and that she told Officer Strong that they were going about 50 miles per hour; if she remembered correctly, appellant did apply his brakes prior to the collision.
Larry Cripe, a passenger in appellant's car, testified that appellant was driving 40 to 50 miles per hour and that appellant did apply his brakes before the impact.
Appellant testified that he was driving south on Fulton Street approaching Ninth and the first time he saw appellee's car was when it was right in front of him; that at that time he applied his brakes and swerved to the right, unable to stop his vehicle, and a collision occurred. At no time did he observe the Littleton car stop as it approached Fulton Street. He admitted he was arrested for unreasonable speed and entered a plea of guilty.
Appellant urgently insists that the appellee was guilty of contributory negligence, either as a matter of law or as a matter of fact. He further contends that the facts are undisputed and are established without any conflict in the evidence.
With this we cannot agree, as it appears from the evidence that we have related in this opinion that there is a conflict in the evidence.
Appellant has argued the two specifications of error set out in his assignment of errors are intermingled by reason of the fact that the applicable statute, which he contends controls this lawsuit, and the judgment, and that they will be intermingled in his argument. We shall, therefore, treat both specifications together.
Appellant, to sustain his point, submits that the decision of the trial judge is not sustained by sufficient evidence and relies on the following statutes:
Burns' Indiana Statute § 47-1904(a):
"Whenever traffic at an intersection is controlled by signs, preferential right of way may be indicated by stop signs or yield signs as authorized elsewhere in this act."
*374 Burns' Indiana Statute § 47-2028(c):
"The driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for the existing conditions, or shall stop if necessary as provided elsewhere in this act, and shall yield the right-of-way to any pedestrian legally crossing the roadway on which he is driving and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard. Said driver having so yielded may proceed and the drivers of all other vehicles, approaching the intersection shall yield to the vehicle so proceeding, provided, however, That if such driver is involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield sign without stopping such collision shall be deemed prima facie evidence of his failure to yield right of way." (Acts 1939, ch. 48, § 79, p. 289; 1957, ch. 290, § 4, p. 746.) (Emphasis supplied.)
Appellant further contends that under this statute if the driver of a vehicle fails to stop and the evidence is undisputed, and a collision occurs, it is at the driver's risk because by statute he has failed to yield the right of way. His further contention is that appellee, having failed to stop in deference to the yield sign and having proceeded on through the intersection with a resulting collision in the intersection, the fact of such collision shall be deemed prima facie evidence of his failure to yield the right of way.
Appellant also urges that slowing to a speed of 5 miles per hour, for the length of the car and trailer, is not a reasonable speed under the statute, and that the evidence is undisputed that appellee failed to stop his motor vehicle in deference to the yield sign, and that the evidence being undisputed that there was a collision in the intersection, such two facts constitute prima facie evidence that appellee failed to yield the right of way.
Appellant defines "prima facie evidence" as "such evidence as will establish a given fact, which must be contradicted by evidence of the other party, or such fact will be accepted as proved."
*375 He cites Harrington v. Hartman (1968), 142 Ind. App. 87, 233 N.E.2d, at page 191, as follows:
"(3) Prima facie means, `at first sight, on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.'"
In Crane v. Morris, 31 U.S. (6 Pet.) 598, 611, 8 Lawyers Edition 514, the court defined prima facie evidence as follows:
"Prima facie evidence of a fact has been held to be such evidence as in the judgment of the law is sufficient to establish the fact and if not rebutted, it remains sufficient for that purpose."
Appellant contends as follows:
"Under the concept of `prima facie evidence' it was the duty in this case of the Appellee Littleton to produce evidence of facts which would excuse his not complying with the part of the statute which made it prima facie evidence of his failure to yield the right of way, when he in fact did not stop and a collision resulted.... If Appellee did fail to yield the right of way, this precludes him from recovery on the obvious theory of his own contributory negligence barring his recovery."
See also "Words and Phrases", Vol. 33, pp. 546-556.
From the evidence before us, we cannot say that under Burns' Ind. Stat. § 47-2028, supra, the appellee, although he did not stop at the yield sign, was guilty of negligence as a matter of law which proximately contributed to or caused his damages.
The preponderance of the evidence is that appellee observed the yield sign and slowed to five miles per hour, looked both ways on the intersecting street in a residential section of the city, and did not see or observe any oncoming traffic. He entered the intersection at 5 miles per hour, while the appellant entered Fulton Street two blocks away and drove at a speed of 50 miles per hour. The record is silent on the distance *376 in feet between Ninth Street and Seventh Street on Fulton. The record is unquestioned that on approaching Fulton on Ninth Street from the east, a driver had unobstructed vision to his right on Fulton. Appellant charges appellee with seeing appellant's motor vehicle on Fulton. To sustain his contention, appellant cites the case of New York Central Railroad Company v. Glad (1962), 242 Ind. 450, 179 N.E.2d 571. In this case, the court held that appellee Glad, who could not see down railroad tracks, as the dump bed of his truck obliterated his view, and the driver violated the statutory duty by proceeding onto the crossing when defendant's train was "plainly visible" and in "hazardous proximity to the crossing" and before "he could do so safely", and drove onto said track and was struck by a train and injured, he was guilty of contributory negligence as a matter of law.
The court, in the Glad case, further said:
"Generally, the violation of a duty prescribed by statute or ordinance is negligence per se or as a matter of law. Northern Indiana Transit, Inc. v. Burk et al. (1950), 228 Ind. 162, 172, 89 N.E.2d 905, 17 A.L.R.2d 572; Hayes Freight Lines, Inc. et al. v. Wilson (1948), 226 Ind. 1, 5, 77 N.E.2d 580; Indiana, Bloomington and Western Railway Company et al. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121; Prest-O-Lite Company v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, Ann. Cas. 1917A, 474; Rimco Realty & Investment Corporation v. LaVigne et al. (1943), 114 Ind. App. 211, 50 N.E.2d 953; Larkins v. Kohlmeyer (1951), 229 Ind. 391, 398, 98 N.E.2d 896; Rentschler v. Hall (1947), 117 Ind. App. 255, 261, 264, 69 N.E.2d 619; Grand Trunk Western R. Co. v. Briggs (1942), 112 Ind. App. 360, 369, 42 N.E.2d 367.
"Exceptions to this general rule have been recognized in Indiana where compliance with the provisions of the statute or ordinance was impossible or non-compliance was excusable. Under such circumstances such violation becomes, in effect, nothing more than prima facie evidence of negligence. Larkins v. Kohlmeyer, supra (1951), 229 Ind. 391, 399, 98 N.E.2d 896; Northern Indiana Transit, Inc. v. Burk et al., supra (1950), 228 Ind. 162, 173, 89 N.E.2d 905, 17 A.L.R.2d 572."
*377 The court said, further:
"Violation of the statute herein does not per se make appellee guilty of contributory negligence, but the negligence for which he is responsible must either be the proximate cause of his injuries or it must proximately contribute thereto. Huey v. Milligan (1961), Ind., 175 N.E.2d 698, 703; Hayes Freight Lines v. Wilson, supra (1948), 226 Ind. 1, 6, 77 N.E.2d 580, 77 N.E.2d 585.
"Unless appellee's negligence in failing to stop under the conditions and within the time prescribed by statute has some causal connection with his injury, it cannot be said that he was guilty of contributory negligence.
"The facts here are undisputed and in our judgment are such as support the sole conclusion that if appellee had exercised the care required by the statute his injury would not have occurred.
"The statute here imposes an extra duty upon travelers on the highway for their safety and protection, and under the circumstances here it may be concluded that appellee would not have been injured if he had obeyed the requirements of the statute and that his failure to exercise the care required of him under the circumstances proximately contributed to his injury.
"Failure of the train crew to give the statutory signals as the train approached the crossing did not relieve appellee from exercising the care required of him under the statute.
"Where, as here, there is no dispute concerning whether the plaintiff has violated a statute or ordinance, and it is clearly apparent that his injury would not have occurred had he observed the requirements of the statute, it may be concluded that his failure to observe such requirements was a substantial factor in producing the injury, and he is guilty of contributory negligence as a matter of law."
The court, in the Glad case, further discussed the violation of an obligation imposed by statute being negligence per se, and reaffirmed the rule. The court said further:
"It is also the general rule that `a violation of a statute enacted for reasons of safety is negligence per se, or negligence as a matter of law.' Northern Ind. Transit, Inc. v. Burk, supra (1950), 228 Ind. 162, 172, 89 N.E.2d 905, 909, 17 A.L.R.2d 572.
*378 "However, negligence per se or as a matter of law does not necessarily mean liability per se."
It is interesting to note that our Supreme Court, after stating that the violation of a statute enacted for reasons of safety is negligence per se, or negligence as a matter of law, added "However, negligence per se or as a matter of law does not necessarily mean liability per se."
We are of the opinion that it is incumbent upon this court, and all courts passing upon this question, to always bear in mind that negligence per se does not necessarily mean liability per se.
We are of the opinion that the statute on the failure to yield right-of-way making a party who has failed to yield the right-of-way and has become involved in a collision as a result thereof does not make such party liable per se, merely because he did not yield the right-of-way; such party may rebut the prima facie evidence of negligence by presenting evidence that his acts were the acts of a reasonably prudent man under the same or like circumstances and further to place liability on the party violating the statute his violation of the statute must be shown to be the sole proximate cause of the collision or of his own injuries, and under which condition he could not recover.
Appellant further argues that the appellee did not look, or if he looked, he didn't see what was apparent to him or could have been apparent and that such constitutes negligence. In support of this he cites Devine v. Grace Construction and Supply Company (1962), 243 Ind. 98, 181 N.E.2d 862.
In that case the Supreme Court held that the failure of a motorist who had been traveling at a speed of 50 to 55 miles per hour, to reduce speed after he had driven around three barricades and passed signs warning of a construction zone was contributory negligence, even if he did not observe the signs and barricades. The court, speaking further said:
*379 "Generally, `it is negligence to fail to see or hear that which you could see or hear, by the exercise of ordinary and reasonable care, and for that reason the law attaches the same legal consequences for not seeing or hearing as it does if in fact you did see and hear.' [Citing cases.]"
The Glad case and the Devine case are distinguishable from the case at bar in that, in the Glad case the driver of a truck had absolutely no vision down the tracks because he could not see around his truck bed. In the Devine case the construction company had several lighted barricades out, which he drove around and then complained that the last one before his collision was not lighted. He was on notice from the barricades in the road that hazards lay ahead and he did not act as a reasonable man would have acted with such knowledge, and the court said, further, that he, having driven around three or more barricades, must have seen them, and they would have furnished notice to him that the road was under construction and hazardous and that the same was sufficient warning to drive at "an appropriate reduced speed" with respect to the conditions of the highway.
The evidence in the present case clearly indicates that appellee respected the yield sign by slowing to 5 miles per hour and looked both ways and saw no approaching vehicles on Fulton Street and continued in his efforts to cross Fulton. The evidence is, further, that appellant, without stopping, drove onto Fulton Street at Seventh Street, which was two blocks from the intersection where the collision took place.
There was no evidence as to the distance between Seventh and Ninth Streets on Fulton. The court may have determined from all the evidence in the cause that appellant was on Fulton at Seventh when the appellee looked in that direction and was such a distance from Ninth Street that a reasonable man would consider he had time to cross said intersection with safety, or the court may have considered that the appellant's speed of 50 miles per hour in a 30 mile zone was negligent and the proximate cause of the collision. The trial judge may *380 have determined that the appellant did not have his car under control as charged in the complaint. These are all things which may have been considered by the trial judge as inferred from the evidence and it is not for us to second-guess the trial court, who was in a position to know about the things we have discussed here.
This court cannot, and will not, weigh the evidence; that was the duty of the trial court, who saw and observed the witnesses on the stand, took into consideration their truthfulness, their bias and interests in the case, and was in a better position to understand the evidence, draw inferences therefrom, and determine the truth of the collision in question.
Contributory negligence is ordinarily a question of fact for determination by the jury or the trial court and it is only in cases where the facts are undisputed and a single inference can be drawn therefrom that the Appellant Court can say as a matter of law that the course of conduct shown constitutes contributory negligence. N.Y. Central Ry. Co. v. Milhiser (1952), 231 Ind. 180, 106 N.E.2d 453. See also: Tate v. West (1950), 120 Ind. App. 519, 94 N.E.2d 371; Grand Trunk, etc., R. Co. v. Cather (1929), 92 Ind. App. 563, 572, 167 N.E. 551.
In Armstrong v. Oster (1919), 189 Ind. 1, 123 N.E. 109, the court said:
"... The trial court heard the evidence and found upon the issues presented by the remonstrance in favor of the remonstrants. We have examined the record and find the evidence contradictory, but that the finding of the court is amply sustained by the evidence. The evidence is sufficient on appeal if the inferences from the evidence are sufficient to support the judgment. It is not essential that the facts be established by positive evidence. Continental Ins. Co. v. Bair (1917), 65 Ind. App. 502, 114 N.E. 763. It is sufficient that the evidence supplies reasonable grounds for inferring facts essential to recovery. Chicago, etc., R. Co. v. Mitchell (1915), 184 Ind. 383, 110 N.E. 215. Where the evidence is conflicting, in *381 determining whether a finding in favor of appellee is warranted, only the uncontroverted facts and the evidence most favorable to appellee and the favorable inferences that may be drawn therefrom can be considered on appeal. Union Nat. Bank, etc. v. Finley (1913), 180 Ind. 470, 103 N.E. 110; Peabody-Alwert Coal Co. v. Yandell (1912), 179 Ind. 222, 100 N.E. 758...."
The above is still the law and we are bound thereby.
Under the guidelines of Armstrong v. Oster, supra, this court necessarily must find that there was sufficient evidence on which the trial court could find for the appellee and against the appellant and that the finding and judgment was based on sufficient evidence.
We are of the further opinion that reasonable men, after hearing the evidence, drawing reasonable and natural inferences and carefully weighing the evidence might reasonably be expected to come to different conclusions.
It is only where reasonable men, after considering the evidence, would all come to but one and the same conclusion, which was contrary to the finding and judgment of the trial court, that such finding and judgment would be contrary to law.
In Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669, the court said:
"It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law."
Finding no reversible error, the judgment of the trial court is hereby affirmed.
Costs versus appellant.
Carson and Cooper, JJ., concur; Sullivan, J., concurs in result only.
NOTE. Reported in 255 N.E.2d 684.
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945 F.2d 1337w
60 USLW 2229
UNITED STATES of America, Plaintiff-Appellee,v.Ira SILVERMAN (90-3205), Gary Caton (90-5733), Morris GordonWoodard (90-5816), Defendants-Appellants.
Nos. 90-3205, 90-5733 and 90-5816.
United States Court of Appeals,Sixth Circuit.
No. 90-5733: Argued Dec. 3, 1990.No. 90-3205: Argued Dec. 4, 1990.No. 90-5816: Argued Dec. 6, 1990.Decided Sept. 17, 1991.
1
NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 976 F.2d 1502.
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61 F.3d 914
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.MANUEL TORRES-HERRERA, Elmer Wilfredo Sanchez-Portillo, akaElmer W. Rivera-Portillo; aka ClaudioRendon-Ramirez; aka Elmer WilfredoRivera-Portillo, Defendants-Appellants.
Nos. 94-50233, 94-50257.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 3, 1994.Submission Withdrawn Nov. 28, 1994.Resubmitted July 17, 1994.Decided July 19, 1995.
Appeal from the United States District Court, for the Central District of California, D.C. Nos. CR-93-01026-WDK, CR-94-00095-WDK; William D. Keller, District Judge, Presiding.
C.D.Cal.
REMANDED.
Before: GIBSON,* HUG, and POOLE, Circuit Judges.
ORDER
Manuel Torres-Herrera and Elmer Sanchez-Portillo appeal from their convictions following the district court's denial of their motions to dismiss and requests for discovery of government records to support their claims that their prosecutions for being deported aliens found in the United States, 8 U.S.C. Sec. 1326(b)(1) and (b)(2) respectively, resulted from impermissible selective prosecutions on the basis of race.
After the district court's decisions in these cases, we decided United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995) (en banc). We decline to determine whether the district court must, may, or may not grant discovery on the facts of these cases following Armstrong, as we conclude that the issue is properly resolved as an initial matter by the district court. We therefore remand to the district court for reconsideration under the standard set out in Armstrong.
REMANDED.
*
Honorable Floyd R. Gibson, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation
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578 F.2d 1317
Harry E. CHARD, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 77-3115.
United States Court of Appeals,Ninth Circuit.
July 28, 1978.
Kenneth Kanev, Seattle, Wash., for petitioner-appellant.
Charles Pinnell, Seattle, Wash., for respondent-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before BROWNING and WALLACE, Circuit Judges, and RENFREW,* District Judge.
RENFREW, District Judge.
Chard asks that we reverse the district court's refusal to grant him section 2255 relief. He asserts two contentions, neither of which has merit.
Chard first argues that the district court erred in declining to conduct a full evidentiary hearing on the issue of whether he had been adequately informed of his appeal rights following his underlying conviction. See Fed.R.Crim.P. 32(a)(2). The district judge declined to consider this allegation because it had been previously raised and rejected in Chard's earlier "Motion for Permission to File a Belated Appeal."
Section 2255 expressly provides that "(t)he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." Although the district court had previously considered Chard's claim in acting on his motion for permission to file a late appeal rather than an earlier 2255 application, we do not believe this difference to be significant. See Williams v. United States, 466 F.2d 672 (9 Cir. 1972) (previous determination of a motion to withdraw plea).
Pursuant to Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the district court was correct in declining to grant a hearing on this issue
"only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." 373 U.S. at 15, 83 S.Ct. at 1077 (footnote omitted).
The first two requirements are clearly satisfied. In the earlier motion, Chard's claim was resolved against him. Moreover, the determination was on the merits in that it was made "on the basis that the files and records conclusively resolved" Chard's contention. Id. at 16, 83 S.Ct. at 1077.
Turning to the third requirement, we have previously held that even though a 2255 motion presents an identical ground which has previously been resolved on the merits and against the prisoner, a hearing may not be denied "absent a determination that the ends of justice would not be served by permitting the redetermination of the ground raised in the first section 2255 motion." Brooks v. United States, 457 F.2d 970, 971 (9 Cir. 1972); Accord, Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9 Cir. 1971); See also Gomez v. United States, 396 F.2d 323, 326 (9 Cir. 1968). Although no explicit determination to this effect appears in the record, the views of the district court on this point emerge clearly from the magistrate's report, which the court adopted. The report sets forth the entire three-part test of Sanders v. United States, supra ; states that leave to appeal in forma pauperis on this claim was previously denied on the ground that it was frivolous; and repeats the court's prior conclusion that the claim was conclusively foreclosed by documents already on file. On this record, the required "specific finding" that the ends of justice would not be served by reaching the merits, Tannehill v. Fitzharris, supra, 451 F.2d at 1324, may be implied.
1
Chard's second contention is that the sentencing court erred in relying upon a presentence memorandum submitted by the FBI. The purpose of the memorandum was to inform the judge of the nature and extent of Chard's postconviction cooperation with the various law enforcement agencies. Chard argues that the memorandum contained material inaccuracies which he was not given an opportunity to refute.
2
Even assuming that Chard's allegations are factually correct, we conclude that the district court correctly refused to hold an evidentiary hearing. In our view, the record clearly indicates that the judge imposed sentence on the basis of the information brought to light during the trial; he simply did not rely on the FBI memorandum. As a result, we find no error in the district judge's refusal to order a hearing on this contention. See United States v. Yates, 554 F.2d 342, 343 (7 Cir. 1977), Cert. denied, 434 U.S. 865, 98 S.Ct. 200, 54 L.Ed.2d 141 (1978); United States v. Allen, 494 F.2d 1216, 1218 (3 Cir.) Cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 83 (1974); United States v. Powell, 487 F.2d 325, 328 (4 Cir. 1973).
3
AFFIRMED.
WALLACE, Circuit Judge, dissenting:
4
While I would prefer the result reached by the majority, I reluctantly conclude that the majority's analysis cannot be squared with a prior decision of this court. I am, therefore, compelled to dissent.
5
In Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the Supreme Court explained that a section 2255 motion may be denied without a hearing "only if . . . (3) the ends of justice would not be served by reaching the merits of the subsequent application." Id. at 15, 83 S.Ct. at 1077 (emphasis added). Clearly, the reciprocal implication of this assertion is that a hearing Must be held if the ends of justice would be served by so doing.
6
In Tannehill v. Fitzharris, 451 F.2d 1322 (9th Cir. 1971), we partially fleshed out the day-to-day application of Sanders by holding that
7
(i)f the district court dismisses a petition on the basis of a prior adjudication, it must make a Specific finding that the ends of justice would not be served by reaching the merits.
8
Id. at 1324 (emphasis added).
9
In this case, the majority asserts that the district judge's determination regarding the ends of justice "may be implied" from the text of the magistrate's report. Although I might agree that the report suggests that the judge made such a determination, I cannot equate this implication with the "specific finding" requirement of Tannehill. Thus, I would remand in order for the district judge to make a specific finding on whether the ends of justice would be served by conducting a hearing on Chard's contention that he was not properly advised of his appeal rights.
*
The Honorable Charles B. Renfrew, United States District Judge, Northern District of California, sitting by designation
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773 F.Supp.2d 975 (2011)
Holly M. BUTLER, Plaintiff,
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant.
Civil No. 09-1378-AA.
United States District Court, D. Oregon.
February 24, 2011.
*977 David B. Lowry, Attorney at Law, Portland, OR, for Plaintiff.
Dwight Holton, United States Attorney, District of Oregon, Adrian L. Brown, Assistant United States Attorney, Portland, OR, Thomas M. Elsberry, Special Assistant U.S. Attorney, Office of General Counsel, Social Security Administration, Seattle, WA, for Defendant.
*978 OPINION AND ORDER
AIKEN, Chief Judge:
Claimant, Holly Butler, brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner. The Commissioner denied plaintiff's applications for Title II disability insurance benefits (DIB) and Title XVI supplemental security income (SSI) disability benefits under the Act. For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.
PROCEDURAL BACKGROUND
On August 24, 2005, plaintiff protectively filed applications for both DIB and SSI. Tr. 60. After the applications were denied initially and upon reconsideration, plaintiff timely requested a hearing before an administrative law judge (ALJ). Tr. 88-96. On February 20, 2008, an ALJ hearing was held before the Honorable Riley J. Atkins. Tr. 564-93. On May 29, 2008, ALJ Atkins issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 60-71. After the Appeals Council declined to review the ALJ decision on September 25, 2009, plaintiff filed a complaint in this Court. Tr. 4-6.
STATEMENT OF THE FACTS
Born in 1956, plaintiff was 49 years old on the alleged onset date of disability, and 51 years old at the time of the hearing. Tr. 70. Plaintiff graduated from high school and attended some college, but did not earn a degree. Tr. 570. Plaintiff has past relevant work experience as a courtesy clerk, deli assistant, and call center operator. Tr. 571-2. She alleges disability beginning August 16, 2005 due to interstitial cystitis, irritable bowel syndrome, history of a seizure disorder, and a personality disorder. Tr. 62. In addition, plaintiff alleges an inability to work due to pain, fatigue, memory and concentration issues attributable to somatization disorder, and depression. Tr. 573-80.
A vocational expert (VE) testified at the hearing. The VE opined that there were light to medium exertion jobs available in the local economy which plaintiff could perform. Tr. 589-92. When asked if missing four or more days of work per month would change her answer, the VE responded that these absences would preclude plaintiff's sustained employment. Tr. 592.
STANDARD OF REVIEW
This court must affirm the Secretary's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The court must weigh "both the evidence that supports and detracts from the Secretary's conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.1986).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir.1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months...." 42 U.S.C. § 423(d)(1)(A).
*979 The Secretary has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1502, 416.920. First the Secretary determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140, 107 S.Ct. 2287; 20 C.F.R. §§ 404.1520(b), 416.920(b).
In step two the Secretary determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41, 107 S.Ct. 2287; see 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three the Secretary determines whether the impairment meets or equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id.; see 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Secretary proceeds to step four. Yuckert, 482 U.S. at 141, 107 S.Ct. 2287.
In step four the Secretary determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, she is not disabled. If she cannot perform past relevant work, the burden shifts to the Secretary. In step five, the Secretary must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287; see 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Secretary meets this burden and proves that the claimant, is able to perform other work which exists in the national economy, she is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
DISCUSSION
At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 62, Finding 2. This finding is not in dispute. At step two, the ALJ found that plaintiff had the following severe impairments: interstitial cystitis, irritable bowel syndrome, history of seizure disorder, and personality disorder. Tr. 62, Finding 3. This finding is in dispute. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 64, Finding 4. This finding is in dispute.
The ALJ determined that plaintiff had the residual functional capacity (RFC) to perform work at the light to medium exertion level. Tr. 65, Finding 5. Plaintiff was limited to work that would allow close access to the bathroom and did not involve concentrated exposure to heights or hazardous machinery. Tr. 65-6. Plaintiff was also restricted to work that involved no more than occasional public contact. Tr. 66. This finding is in dispute.
At step four, the ALJ decided that plaintiff was unable to perform her past relevant work. Tr. 69, Finding 6. This finding is not in dispute. Finally, at step five, the ALJ found that there are jobs that exist in significant numbers in the national and local economy that plaintiff could perform. Tr. 70, Finding 10. This finding is in dispute.
I. Opinions of Treating and Consulting Physicians
Plaintiff asserts that the ALJ erred by providing legally insufficient reasons for rejecting the opinions of treating physician, Michael Leigh Rowan-Kelly, M.D., and consulting physician, Neal Rendleman, M.D. PL's Br. at. 10-14.
*980 There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). A treating physician's opinion is controlling when it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent" with other evidence of record. 20 C.F.R. § 404.1527(d)(2). When the treating physician's opinion is uncontroverted, the ALJ must give "clear and convincing reasons" before rejecting the opinion. Lester, 81 F.3d at 830. When the treating physician's opinion is disputed, the ALJ must give "specific and legitimate reasons" before rejecting the opinion. Id.
A. Dr. Rowan-Kelly
Plaintiff argues that the ALJ's finding that Dr. Rowan-Kelly's opinion lacked references to objective medical findings was not a valid reason for rejecting his opinion. Pl.'s Br. at 11; Orn v. Astrue, 495 F.3d 625, 635 (9th Cir.2007).
Dr. Rowan-Kelly was plaintiff's treating physician for part of 2007. It is undisputed that Dr. Rowan-Kelly's opinion is inconsistent with nearly every other treating, examining, or non-examining physician. Thus, the question is whether the ALJ set forth specific and legitimate reasons for giving little weight to Dr. Rowan-Kelly's opinion. Lester, 81 F.3d at 830.
Before looking into the ALJ's reasons for rejecting the opinion, a preliminary matter must be addressed. During the ALJ hearing, there was confusion as to whether Dr. Rowan-Kelly was, in fact, a doctor. Tr. 68. Because Dr. Rowan-Kelly signed the report "Rowan-Kelly, Leigh," without an M.D. after his name, the ALJ assumed that he "worked in the doctor's office." Id. Although the ALJ improperly concluded that there was no information provided as to the role of Dr. Rowan-Kelly, I find that the error was harmless because the ALJ evaluated the opinion according to the standards for a treating physician, providing specific and legitimate reasons for rejecting it. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.2006) (mistakes that are "nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion" are harmless error).
Dr. Rowan-Kelly saw plaintiff approximately six times, and listed plaintiff's diagnosis as "progressive deterioration." Tr. 307. Further, Dr. Kelly-Rowan opined that plaintiff had a very limited RFC, stating that plaintiff was in "constant pain and excretory function requirements are grossly disruptive." Tr. 312. Finally, Dr. Rowan-Kelly opined that plaintiff would need to miss work "more than four times a month" due to her medical impairments. Id.
While plaintiff may be correct that a lack of reference to objective medical findings is not a valid reason for rejecting a treating physician's opinion, I find that the ALJ gave additional reasons. A physician's opinion can be properly rejected when the ALJ finds that it was in the form of a checklist, lacks supporting objective evidence, was contradicted by other statements on the record, and was based on subjective descriptions. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.2004).
Here, the ALJ rejected Dr. Rowan-Kelly's opinion because he used a "check-the-box" form that failed to set out any objective findings, only stating that his report was based on "objective assessment, plaintiff's subjective report." Tr. 68. The ALJ found that not only did Dr. Rowan-Kelly fail to provide any specific, objective findings in this report, but further, that his "response did not distinguish how *981 much of the answer was merely based on subjective complaints." Id. The ALJ also noted that plaintiff worked for years with the same impairments that she now alleges qualify her as disabled, and that there was no evidence in the record, other than Dr. Rowan-Kelly's report, that any of plaintiff's impairments had deteriorated over time. Tr. 68-9. Thus, the ALJ found that Dr. Rowan-Kelly's report merited little weight because it was in the form of a checklist, lacked supporting objective evidence, was contradicted by other statements on the record, and was based on subjective descriptions. Batson, 359 F.3d at 1195. Therefore, I find that the ALJ set forth sufficient specific and legitimate reasons for rejecting the opinion of Dr. Rowan-Kelly.
B. Dr. Rendleman
Plaintiff next contends that the ALJ erred by rejecting Dr. Rendleman's opinion about plaintiff's need for a sheltered workshop and accommodations due to the need for frequent restroom trips. Pl.'s Br. at 13. In February 2006, Dr. Rendleman conducted a one-time "work capacity evaluation" on behalf of the Oregon Department of Human Services. Tr. 290. Dr. Rendleman opined that "any program that would get [plaintiff] into the workforce would obviously require a sheltered workshop and extensive accommodation for frequent trips to the bathroom and missed days of work." Tr. 292.
Within the same report, however, Dr. Rendleman also stated that plaintiff exhibited "gain-seeking behavior" and had the mental status of someone who "has totally dedicated herself to her illness." Tr. 291-2. Dr. Rendleman further opined that "review of criteria for disability does not indicate anything physiologic as it relates to digestion, urine, or neurological disorder that would be even worth pursuing further, as regards to work capacity," and that plaintiff "has the potential to be productive." Tr. 292. Because Dr. Rendleman found nothing physical that would cause plaintiff to need to use the bathroom as frequently as she suggests, his assessment of plaintiff's need for accommodations was based on her subjective reports.
A physician's work restrictions based on a claimant's subjective statements about symptoms are reasonably discounted when the ALJ finds the claimant less than credible. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.2009). Here, the ALJ found that plaintiff exhibited gain-seeking behavior. Tr. 67. Plaintiff has been attempting to get disability benefits and Family Medical Leave Act (FMLA) leave since 1994. Tr. 521-30. Disability benefits have consistently been denied. Tr. 531-4.
In addition, in approximately 2001, plaintiff began requesting FMLA work-release forms. Plaintiff's treating physician at the time, Dr. Vinson, stated that he was concerned with plaintiff's open ended request for medical leave, stating that plaintiff had frequently expressed a dislike for work in general and he worried that leave would open the door to permanent disability. Tr. 67, 450. Dr. Vinson further opined that, "I do not feel that her chronic medical condition are [sic] in any way incapacitating or that taking medications would necessarily prevent her from fulfilling her work duties." Tr. 423.
When Dr. Vinson repeatedly refused to sign plaintiff's work-release forms, she approached one of his colleagues for a signature. Tr. 415. Plaintiff also requested work-release forms from Dr. Chamie (Tr. 316), Dr. Rosenberg (Tr. 340), Dr. Wilson (Tr. 376), Dr. Moos (Tr. 390-1), and Dr. Corbett (Tr. 399, 404). These doctors all refused to sign extended work-release forms because all believed that plaintiff's medical conditions did not impair her ability *982 to work. Based on this evidence, the ALJ concluded that plaintiff "simply appears to be focused on obtaining disability benefits as a means of avoiding a return to work." Tr. 67. Accordingly, the ALJ rejected Dr. Rendleman's opinion based on plaintiff's lack of credibility and inconsistencies in the report concerning the effect of plaintiffs impairment.
I find ample evidence in the record supporting the finding that plaintiff is not credible. I also find that Dr. Rendleman's report is not internally consistent. Further, Dr. Rendleman's opinion, even if accepted as true, does not support findings of greater functional limitations than those already addressed by the ALJ. Therefore, as to plaintiff's claims regarding Dr. Rowan-Kelly and Dr. Rendleman, I find that the ALJ adequately considered and properly rejected or accepted all relevant medical evidence. Accordingly, I find no basis to overturn the ALJ's decision and find that the decision is based on proper legal standards and that the findings are supported by substantial evidence in the record.
II. Residual Functional Capacity Determination
Plaintiff also contends that the ALJ failed to accommodate the full range of her limitations in her RFC. Pl.'s Br. at 14-17. Specifically, plaintiff argues that the ALJ did not assess Dr. Sacks' diagnoses of somatization disorder and pain disorder, the impact of plaintiff's interstitial cystitis, or the side effects of her medications on her ability to perform work activity.
In assessing the RFC, the ALJ must consider limitations imposed by all of a claimant's impairments, even those that are not severe. SSR 96-8p. Further, the ALJ is required to consider all medical opinions and assess the weight to be afforded each opinion. 20 C.F.R. §§ 404.1527, 416.927. However, the RFC need only incorporate limitations found on the record. Osenbrock v. Apfel, 240 F.3d 1157, 1164-5 (9th Cir.2001) (restrictions not supported by substantial evidence may be freely accepted or rejected by ALJ).
Here, the ALJ found that plaintiff has the residual functional capacity to perform "light to medium work" with the following limitations: close access to a bathroom, no concentrated exposure to heights or hazardous machinery, and only occasional public contact. Tr. 65-6. Based on the record, the ALJ found that plaintiff's impairments could reasonably be expected to produce the alleged symptoms. Tr. 66. However, the ALJ also found that plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent" with the RFC. Id.
A. Plaintiff's Testimony
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ may reject [her] testimony regarding the severity of symptoms only if he makes specific findings stating clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir.1996) (internal quotation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947 (9th Cir.2002). A general assertion that plaintiff is not credible is insufficient; the ALJ must "state which. . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993).
Here, the ALJ determined that plaintiff's testimony "suggested that she *983 performed at a higher exertional level than perhaps she recognized." Tr. 67. Plaintiff testified that she cooked for her disabled significant other and helped him with showering and dressing. Tr. 584. The ALJ found that this evidence directly contradicted plaintiff's contentions about how debilitating her pain and other limitations were. Id. Accordingly, the ALJ found that these non-work activities "reveal a rather full ability to perform at the light to medium level of exertion." Id. Moreover, the ALJ noted that plaintiff's role as caregiver provided additional incentive for her not to return to work and to seek disability benefits. Id. Thus, because plaintiff's level of activity is inconsistent with the degree of impairment that she alleges, the ALJ found plaintiff's testimony about the severity of her limitations not credible. Id.
The ALJ pointed to specific evidence in the record that undermines plaintiff's claims that her impairments were so great that she was unable to work. Therefore, I find that the ALJ provided clear and convincing reasons to reject plaintiff's subjective testimony regarding the extent of her limitations.
B. Failure to Accommodate Plaintiff's Limitations in the Residual Function Capacity
Plaintiff makes several arguments outlining the ways in which the RFC failed to capture all of her limitations.
i. Dr. Sacks' Diagnoses
First, plaintiff argues that the ALJ erred by failing to address Dr. Sacks' opinion regarding her somatization and pain disorders. Further, plaintiff asserts that the ALJ erred by finding that these disorders were not "severe."
Contrary to plaintiff's assertions, however, the ALJ did address Dr. Sacks' opinion. Tr. 61. In 2006, Dr. Sacks performed a consultive exam on plaintiff and diagnosed her with depression, somatization disorder, and pain disorder. Tr. 289. However, in his report, he did not discuss whether or how these diagnoses would result in limitation on plaintiff's ability to perform work-related activities. Dr. Sacks did find that plaintiff "complained of cognitive difficulties in excess of observed impairment." Tr. 286.
A state agency psychologist, Dr. Anderson, evaluated the workplace limitations established by Dr. Sacks' report. Tr. 61. Dr. Anderson opined that while plaintiff did have mild limitations, these limitations were not "severe." Tr. 303, 305. Based in Dr. Sacks' report, Dr. Anderson did not recommend any work restrictions. Tr. 305. Further, Dr. Anderson noted that plaintiff engaged in several normal daily activities that contradicted her claims of disability. Id. Therefore, the record shows that the ALJ accepted Dr. Sacks diagnoses, but did not find that they resulted in work-activity restrictions, especially since there was evidence of "purposeful embellishment for secondary gain." Id.
Based on the record, I find that the ALJ properly considered and weighed all of the relevant medical evidence, and did not err by finding that plaintiff's somatization disorder and pain disorder were not "severe." Further, I find that to the extent that these disorders impair plaintiff, they do not result in additional restrictions in the RFC.
ii. Plaintiff's Interstitial Cystitis
Second, plaintiff argues that the RFC is legally deficient because the ALJ failed to assess the impact of interstitial cystitis on plaintiff's ability to perform sustained work activity. However, at step 2, the ALJ concluded that the plaintiffs interstitial cystitis was a severe impairment, and the RFC includes a physical limitation to account for this impairment. Plaintiff *984 does not detail what other physical limitations follow from interstitial cystitis, besides the limitations already listed in the RFC. Plaintiff testified merely that she "could [need to go to the bathroom] once an hour," but that she never had accidents and was in good control of her functions. Tr. 580. Thus, from the record and plaintiffs own testimony, I find that the RFC, which does reflect plaintiffs need for "close access to the bathroom," is legally sufficient.
iii. Medication Side-Effects
Third, plaintiff asserts that the RFC failed to accommodate for the side-effects of her medications. The ALJ must consider all factors that might have a "significant impact on an individual's ability to work," including the side-effects from medications. Erickson v. Shalala, 9 F.3d 813, 818 (9th Cir.1993). Plaintiff argues that the ALJ ignored the "uncontroverted testimony that plaintiff suffers from drowsiness from medications." PI. Br. at 17. However, as discussed above, plaintiffs subjective testimony about the effects of her medication were found to be not credible by the ALJ, and were accordingly properly rejected. Therefore, I find that plaintiff's allegations that the ALJ erred because the RFC failed to reflect impairments due to medication side-effects must fail.
iv. Failure to Incorporate Limitations Identified by Other Doctors
Fourth, plaintiff alleges that the ALJ erred by failing to incorporate the limitations identified by Dr. Rowan-Kelly and Dr. Rendleman. However, as discussed above, the ALJ properly rejected this evidence.
Therefore, I find that the ALJ's RFC determination is supported by substantial evidence. In addition, I find that the ALJ properly considered and assessed all of the medical evidence and plaintiff's limitations, as mandated by SSR 96-8. Accordingly, I find that the ALJ's step 5 findings are supported by substantial evidence and free of legal error.
CONCLUSION
The Commissioner's decision is based on substantial evidence, and is therefore, affirmed. This case is dismissed.
IT IS SO ORDERED.
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606 S.E.2d 849 (2004)
278 Ga. 788
BARNES et al.
v.
TURNER.
No. S04G0813.
Supreme Court of Georgia.
November 23, 2004.
Reconsideration Denied December 9, 2004.
Jones, Jensen & Harris, Taylor W. Jones, Richard E. Harris, Atlanta, for appellants.
Carlock, Copeland, Semler & Stair, Johannes S. Kingma, John C. Rogers, Atlanta, for appellee.
FLETCHER, Chief Justice.
The issue in this legal malpractice case is what duty attorney David Turner, Jr. owed his client, William Barnes, Jr., with respect to maintaining Barnes's security interest that lapsed. The Court of Appeals held that Turner's *850 only duty was to inform Barnes that his security interest required renewal in five years.[1] Because under that view the statute of limitations expired before Barnes filed his malpractice action, the Court of Appeals affirmed the trial court's decision to grant Turner's motion to dismiss. We conclude, however, that if Turner failed to inform Barnes of the renewal requirement, Turner undertook a duty to renew the security interest himself. The statute of limitations has not expired for an alleged breach of that duty, and therefore we reverse.
On October 1, 1996, Barnes sold his company, William Barnes' Quality Auto Parts, Inc., to James and Rhonda Lipp for $220,000. The Lipps paid $40,000 at the closing and executed a ten-year promissory note in favor of Barnes for the $180,000 balance. The note was secured by a blanket lien on the Lipps's assets. On October 30, 1996, Turner perfected Barnes's security interest by filing UCC financing statements. Viewing the facts in the light most favorable to Barnes (as the non-moving party),[2] Turner did not, however, inform Barnes that under OCGA § 11-9-515, financing statements are only effective for five years, although their renewal for another five years is expressly provided for in that statute. The renewal is effected by filing continuation statements no earlier than six months before the end of the initial period.[3] No renewal statements were filed, and on October 30, 2001, the original statements lapsed.
Unknown to Barnes, the Lipps had pledged the same collateral to F&M Bank and Trust Company and to Mid-State Automotive Distributors on December 28, 1998 and January 29, 2001, respectively. Both of these companies filed UCC financing statements, which put them in a senior position to Barnes when his financing statements lapsed. Barnes is still owed more than $142,792.09 under the promissory note, and James Lipp is now in Chapter 7 bankruptcy.
Barnes sued Turner for malpractice on October 18, 2002. The trial court granted Turner's motion to dismiss. Finding that the only possible incident of malpractice was Turner's failure to inform Barnes of the renewal requirement in October 1996, the Court of Appeals held that the four-year statute of limitations had run and affirmed the trial court.[4] We granted Barnes's petition for certiorari.
1. Barnes contends that the Court of Appeals erred in simply looking to Turner's actions in October 1996 as constituting the malpractice. If Turner had renewed the financing statements in 2001, Barnes argues, there would have been no lapse in his security interest and thus no malpractice. Barnes contends that Turner's duty was to safeguard his security interest, which Turner could have satisfied by either informing Barnes of the renewal requirement or renewing the financing statements in 2001. Under this view, Turner breached his duty in 2001, when he failed to do both, and thus the statute of limitations on Barnes's action has not expired. For the following reasons, we agree.
A motion to dismiss should only be granted if "the allegations of the complaint, when construed in the light most favorable to the plaintiff with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts."[5] Accordingly, the grant of Turner's motion to dismiss was only proper if Barnes's duty ended in 1996.[6]
*851 Turner contends that he was not retained to file renewal statements. While Georgia's appellate courts have not previously addressed this issue, decisions from other states make clear that an attorney in Turner's position must at least file original UCC financing statements, even absent specific direction from the client.[7] We agree. An attorney has the duty to act with ordinary care, skill, and diligence in representing his client.[8] In sale of business transactions where the purchase price is to be paid over time and collateralized, it is paramount that the seller's attorney prepare and file UCC financing statements to perfect his client's security interest. We further hold, for the reasons given below, that if the financing statements require renewal before full payment is made to the seller, then the attorney has some duty regarding this renewal. Otherwise the unpaid portion of the purchase price becomes unsecured and the seller did not receive the protection he bargained for.
Safeguarding a security interest is not some unexpected duty imposed upon the unwitting lawyer; it goes to the very heart of why Turner was retained: to sell Barnes's business in exchange for payment. We do not, as the dissent contends, demand that the lawyer "ascertain the full extent of the client's `objectives;'" only that the lawyer take reasonable, legal steps to fulfill the client's main, known objective to be paid for the business he sold.
The dissent views only the sale of the business as important since this is what happens at the closing; but why does a client sell his business if not to receive payment? When the dissent argues that Turner's duty was simply to "close" the transaction, it fails to recognize that closing this particular transaction meant taking the reasonable steps that competent attorneys would take to legally secure their clients' right to receive payment for the businesses they have sold. Where payment is to be made in less than five years, Georgia law does not require renewal of the initial financing statements and thus the lawyer's duty is only to file the initial statements. But where payment is to take longer than five years, the lawyer being trusted by his client to know how to safeguard his security interest under Georgia law has some duty regarding renewal of the financing statements. The question is the nature of that duty.
Under the dissent's view, a client has to specifically ask his lawyer to renew the financing statements for this to be among the lawyer's duties. But how can the client be expected to know of this legal requirement? He hires the lawyer because the lawyer knows the law. The client cannot be expected to explicitly ask the lawyer to engage in every task necessary to fulfill the client's objectives.
The Court of Appeals held that a failure to inform by Turner was the sole possible grounds for malpractice.[9] But this is too narrow a definition of Turner's duty. The duty was not necessarily to inform Barnes of *852 the renewal requirement; often transactional attorneys do no such thing and simply renew the financing statements themselves. These attorneys have not breached a duty. Turner's duty was to safeguard Barnes's security interest. There were two means of doing so: by informing Barnes of the renewal requirement, or by renewing the financing statements himself in 2001. Either one would have been sufficient to comply with Turner's duty, and any breach of that duty occurred only upon Turner's failure to do both.
Further, if Turner's only duty arose in 1996, then Barnes had to bring suit before the financing statements could even be renewed to comply with the four-year statute of limitations. Barnes contends that any such action would have been dismissed as unripe because he was still a secured party at the time. He is correct. The dissent's view deprives Barnes and any clients in his position of any remedy for malpractice. The dissent's view precludes Barnes from ever maintaining a malpractice suit against Turner, who failed to take a simple, necessary action that will likely leave Barnes without his business and without over 78% of the purchase price he is still owed for that business.
The dissent's hyberbole about the effect of this opinion mischaracterizes our holding, which is based on a unique set of facts: a collateralized, payment-over-time arrangement in exchange for a sale of business where the payment period exceeds the five-year life span afforded to initial financing statements under OCGA § 11-9-515. The lawyer, being retained to protect his client's interests in connection with the sale of his business, is the only party who knows the legal requirements for maintaining the effectiveness of the security interest. He can either share this knowledge with his client a very simple step or renew the financing statements before they expire an equally simple step. The dissent's concern over the expansion of attorney duties is unwarranted.
2. The dissent also argues that imposing a duty to renew on Turner is an adoption of the "continuous representation rule," which Georgia courts have rejected except in personal injury cases.[10] Under this rule, a continuing relationship or continuing wrong can toll the statute of limitations.[11] In the case cited by the dissent, Hunter, Maclean, Exley & Dunn, P.C. v. Frame,[12] the alleged malpractice was only that material financial information was omitted from the closing documents; there was not, as in the present case, some further action beyond the closing at issue, and thus Hunter, Maclean is inapposite to our situation. The continuous representation rule is not implicated in this case. We are not holding that a failure to inform by Turner in 1996 was a continuing wrong that tolled the statute of limitations until 2001. To the contrary, we are holding that a failure to inform in 1996 means that Turner undertook a duty to renew in 2001, and the statute of limitations began running from the date of alleged breach of that duty.[13]
In light of the foregoing considerations, we reverse the Court of Appeals's decision that affirmed the trial court's grant of Turner's motion to dismiss. Barnes's malpractice action was filed within four years of the failure to renew the financing statements in 2001, and thus may proceed.
Judgment reversed.
All the Justices concur, except BENHAM, THOMPSON and HINES, JJ., who dissent.
BENHAM, Justice, dissenting.
For the purpose of ensuring recompense for a client who may have been caused a *853 grievous financial loss by his attorney's alleged failure to perform a simple duty, a majority of this court has ignored pertinent law and created a new species of duties which arise not from employment but from the occurrence of an initial mistake.
The central question in this legal malpractice case concerns the duty undertaken by Turner when he represented Barnes and his corporation in the sale of a business. The majority opinion begins with a statement of the issue which supposes the ultimate question by starting from the premise, as did the question posed in the grant of the writ of certiorari and set out in the majority opinion, that Turner owed a duty to maintain, as opposed to create, a security interest for Barnes. The holding of the majority opinion that Turner owed a duty to renew the security interest when it expired is thus based not on reasoning or the law, but on an unsupported assumption.
"It is axiomatic that the element of breach of duty in a legal malpractice case the failure to exercise ordinary care, skill, and diligence must relate directly to the duty of the attorney, that is, the duty to perform the task for which [the attorney] was employed." Tante v. Herring, 264 Ga. 694(1), 453 S.E.2d 686 (1994). Here, the task for which Turner was employed was to perform the services attendant to the closing of the sale of the business, including filing the UCC financing statements. He breached the duties arising from that employment, or did not, at that time. If he had a duty to inform Barnes of the need in the future to renew the statement, and did not do so, he breached the duty then and his potential liability came into existence.[1] The record shows that Barnes asserts he continued to employ Turner for legal tasks, but not that Turner was engaged on an ongoing basis to protect Barnes's interests in all legal matters which arose or might have arisen. To assert Turner had a duty arising from his representation during the closing which would not manifest itself for five years "would essentially be an adoption of the `continuing representation rule,' which has been consistently rejected by Georgia courts in the malpractice context...." Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 849, 507 S.E.2d 411 (1998).
The majority, however, imposes as a matter of law duties which were not undertaken by Turner and were not within the scope of his employment to close the sale of the business. The majority holds the asserted failure to inform Barnes of the future need to renew the UCC statements somehow created a duty on Turner's part to renew the filings without having been retained to do so. The majority thus creates new duties that could outlast not only the period of the attorney-client relationship, but even the attorney's life. In addition, by attaching to the asserted breach of one duty the conditional creation of a new and potentially more onerous duty, the majority destroys any notion of finality attorneys may hope to have in any aspect of their employment. No attorney can safely close a file and, apparently, no passage of time can insulate a mistake since the very happening of a mistake creates, under the majority's view, another duty. Under the conditional duty concept created from the whole cloth by the majority, for which no authority or valid reasoning is offered, any change in employment status must trigger a full examination of every past transaction to be sure some inadvertence in the past has not created a new duty which would start a period of limitation running again.
Not only does this new duty, which can only be ascertained to have existed after damage from an original mistake has manifested, and perhaps (though the majority opinion is unclear on the point) after the expiration of the period of limitation has barred suit for the first mistake, add to every attorney's potential liability to clients, it adds such uncertainty and lack of finality to every transaction that malpractice insurance carriers *854 will be unable to make accurate assessments of their exposure. This will inevitably result in higher premiums, which will necessarily be passed on to clients. In addition to adding to the direct expense of legal representation, the increase in premiums and the need to institute greater safeguards to avoid liability will result in further consolidation of the practice of law in larger and larger firms because they will have greater resources to help prevent any oversight, and will require contracts of employment that stringently restrict the scope of representation by use of disclaimers intended to protect attorneys from any responsibility to clients other than the most narrow definition of the tasks for which attorneys are employed. The damage wrought by these restrictions will fall most heavily on the very class to which the plaintiff in this case belongs and which the majority purports to wish to protect, the proprietors of small businesses.
The majority's resolution of the present case is not just short-sighted from a policy standpoint, but lacks a rational basis. It cites foreign authority for a proposition not contested by anyone, that Turner had a duty to file the financing statements, which he did, and then vaults without reasoning or authority to the creation of an additional duty to safeguard the security interest just created. It is at that point the majority invents, as noted above, a duty to "provide for payment to Barnes." Thus, the simple act of performing the duty to create a security interest becomes a duty of indeterminate duration to ensure the payment of the obligation secured. To justify such a vast extension of the attorney's duty, the majority suggests that the duty is not, as this Court held in Tante v. Herring, supra, "the duty to perform the task for which [the attorney] was employed," but is rather, in some unspecified fashion, to ascertain the full extent of the client's "objectives" in undertaking the transaction and then take whatever actions are necessary to see that the objectives are fulfilled. Apparently, the majority has created a new standard of care to be employed in reviewing an attorney's success in ferreting out and guaranteeing accomplishment of all of a client's objectives: what lawyers often do. That has never been the standard of care employed in legal malpractice cases and should not be applied here as the majority does.
That the majority's approach here is dictated by a desired result rather than by law or reason is apparent from its frequent return to the lament that without the creation of this new duty to take all possible steps to guarantee payment of the obligation owed to the client, Barnes will not be able to recover his losses because the statute of limitation bars recovery for the breach of Turner's duty to inform Barnes of the need to renew the financing statements in the future. That issue was resolved in the Court of Appeals and, as noted above, is not properly within the scope of the question posed by the Court in granting the writ of certiorari. Thus, the issue is not properly before us and, even if it were, would not warrant the creation of a new duty to avoid the unfortunate effect the correct application of statute-of-limitation law has had on Barnes.
Finally, it must be noted that the question of a duty to renew was properly omitted from the Court of Appeals' consideration of this case and should never have been taken up by this Court for the simple reason that it was not litigated below. The majority seeks to avoid this problem with a reference to the pleadings, but ignores the fact that the trial court did not rule on that claim and the Court of Appeals, whose judgment we purport to review, did not rule on that issue. As this Court held in Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 829, 573 S.E.2d 389 (2002),
our appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. "'[T]o consider the case on a completely different basis from that presented below ... would be contrary to the line of cases ... holding, "He must stand or fall upon the position taken in the trial court."'" Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.
(Footnoted citations omitted). While Barnes raised in an initial pleading and in a written response *855 to the motion to dismiss the assertion that Turner had a duty to renew the financing statements, that issue was not addressed in the actual defense of the motion and was not decided by the trial court. Notwithstanding the lack of any ruling on the issue below, a majority of this Court bases its judgment on it, becoming in effect a "super trial court" with authority to decide issues for the first time. That is not the proper role for this Court.
Notwithstanding the twists and turns employed by the majority to reach its desired result, this case is simple. Turner was employed to close a commercial transaction. Whatever duty he undertook was in connection with that employment and was breached or not at that time. There being no duty to renew the UCC statements in 2001, Turner's failure to do so could not constitute a breach of duty which would support the legal malpractice claim against him. That being so, no basis exists for reversing the judgment of the Court of Appeals or of the trial court. I must, therefore, dissent to the majority's result-oriented distortion of legal malpractice law to create a new duty of indeterminate duration which arises only upon the breach of an earlier duty.
I am authorized to state that Justices Thompson and Justice Hines join in this dissent.
NOTES
[1] Barnes v. Turner, 265 Ga.App. 6, 593 S.E.2d 9 (2003).
[2] Cooper v. Unified Gov't of Athens-Clarke County, 275 Ga. 433, 434(2), 569 S.E.2d 855 (2002).
[3] OCGA § 11-9-515(c).
[4] OCGA § 9-3-25; Tucker v. Smith, 249 Ga.App. 305, 308(1), 547 S.E.2d 604 (2001).
[5] Cooper, 275 Ga. at 434, 569 S.E.2d 855.
[6] The dissent's reliance on Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 573 S.E.2d 389 (2002) is inapposite. In Pfeiffer, we held that a party could not seek to reverse a grant of summary judgment by raising a new argument for the first time on appeal. However, this case involved the grant of a motion to dismiss. In reviewing the grant of a motion to dismiss, it is the duty of the appellate court to "construe the pleadings in the light most favorable to [the appellant] with all doubts resolved in [appellant's] favor." Alford v. Public Service Commission, 262 Ga. 386, n. 2, 418 S.E.2d 13 (1992). By considering all the allegations of the complaint, including the failure to renew, this Court is simply applying the correct standard of review.
[7] See Practical Offset, Inc. v. Davis, 83 Ill.App.3d 566, 39 Ill.Dec. 132, 404 N.E.2d 516, 520 (1980). The failure to file a UCC financing statement has even been held to constitute legal malpractice as a matter of law. See Lory v. Parsoff, 296 A.D.2d 535, 745 N.Y.S.2d 218 (N.Y.App.Div.2002); Deb-Jo Constr. v. Westphal, 210 A.D.2d 951, 620 N.Y.S.2d 678 (N.Y.App.Div.1994).
[8] Tante v. Herring, 264 Ga. 694, 694, 453 S.E.2d 686 (1994); Restatement (Third) of the Law Governing Lawyers § 16(2) (1998).
[9] The dissent argues that the failure to inform is not within the scope of our question posed on certiorari and thus does not consider it. But this is incorrect. Our certiorari question asked:
"Whether the statute of limitation began to run on petitioner's malpractice claim in October 1996 when Turner assumed the on-going duty to renew the UCC forms or when Turner breached that on-going duty in October 2001 or must the breach necessarily relate back to the date on which the on-going duty was assumed?"
The only possible way for Turner to have assumed a duty to renew was by failing to inform Barnes of the renewal requirement; therefore, the question assumes that he so failed to inform Barnes. Both parties argued the failure to inform in their briefs and at oral argument. Turner's actions in 1996 are integral to understanding the duty he undertook in 2001, and were clearly contemplated by our certiorari question.
[10] See, e.g., Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366(2), 368 S.E.2d 732 (1988); Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 806-807(2), 273 S.E.2d 16 (1980); Stocks v. Glover, 220 Ga.App. 557, 558-559(1), 469 S.E.2d 677 (1996).
[11] Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972).
[12] 269 Ga. 844, 849, 507 S.E.2d 411 (1998).
[13] The sole issue before us is the scope of the duty allegedly breached. Therefore, we do not address the other elements of Barnes's malpractice claim: breach of duty, causation, and damages. See, e.g., Tante, 264 Ga. at 694, 453 S.E.2d 686.
[1] The correctness of the decision of the Court of Appeals that the statute of limitation barred Barnes's claim based on Turner's failure to inform Barnes of the need to renew the filing is not within the scope of the question posed, which clearly dealt only with the duty to renew which the majority wrongly assumes, and should not be considered in this appeal. See Handson v. HCA Health Services of Georgia, Inc., 264 Ga. 293, (n. 1), 443 S.E.2d 831 (1994).
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ALLEN MARSHALL,
Petitioner-Appellant,
No. 03-56836
v.
DON TAYLOR, Warden; ATTORNEY D.C. No.
CV-00-12890-PA
GENERAL OF THE STATE OF
OPINION
CALIFORNIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
October 8, 2004—Pasadena, California
Filed January 13, 2005
Before: J. Clifford Wallace, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Senior Circuit Judge T.G. Nelson
575
MARSHALL v. TAYLOR 577
COUNSEL
Sean K. Kennedy, Deputy Federal Public Defender, Los
Angeles, California, for the petitioner-appellant.
Peggie Bradford Tarwater, Deputy Attorney General, Los
Angeles, California, for the respondents-appellees.
OPINION
T.G. NELSON, Senior Circuit Judge:
William Allen Marshall appeals the district court’s denial
of his writ of habeas corpus for an alleged violation of Faretta
v. California.1 We have jurisdiction pursuant to 28 U.S.C.
§ 2253. Marshall asked to represent himself on the morning
of his state court trial. The state trial court denied his request
on the impermissible ground that Marshall lacked the requi-
site skill and knowledge to represent himself. The California
Court of Appeal affirmed on the proper ground that Mar-
shall’s request was untimely. Marshall now contends (1) that
the court of appeal’s decision was contrary to Faretta and (2)
that its finding of untimeliness was based on an unreasonable
determination of the facts. We disagree. Therefore, we affirm
the district court’s denial of Marshall’s habeas petition.
I. BACKGROUND
Prior to jury selection on the morning of Marshall’s state
court trial, Marshall moved for a change of counsel or, in the
alternative, to represent himself pursuant to Faretta. Although
the court expressed concern that Marshall was trying to delay
trial by moving for new counsel, the reason the court ulti-
mately specified for denying his Faretta request was that
1
422 U.S. 806 (1975).
578 MARSHALL v. TAYLOR
Marshall lacked the skills and understanding necessary to rep-
resent himself. Marshall objected to the ruling. A court-
appointed attorney represented Marshall during his trial, the
jury convicted him, and he received a sentence of 25-years-to-
life.
On direct appeal, Marshall raised the denial of his Faretta
request. The California Court of Appeal stated that under Peo-
ple v. Windham,2 invocation of the right of self-representation
required an unequivocal request made a reasonable amount of
time before trial. The court held that Marshall’s request was
untimely, citing several factors. First, the court noted that
Marshall made his request on the day trial was set to com-
mence and after he had received several continuances of trial.
Second, the court noted that Marshall presented no facts to
show that his last-minute request was reasonable. Accord-
ingly, the California Court of Appeal held that the trial court
properly denied the Faretta request, though on grounds differ-
ent from those given by the trial court. The California
Supreme Court denied review.
Having exhausted his state court avenues of redress, Mar-
shall filed a federal habeas petition in the district court. He
argued that the denial of his Faretta request violated the Sixth
Amendment. In reviewing the record,3 the district court noted
that Marshall made at least six appearances in court after
becoming dissatisfied with his appointed counsel without
voicing his concerns. In addition, the district court noted Mar-
shall’s references for his need for more time in the record
when he made his request. In light of these facts, the district
2
560 P.2d 1187, 1191 (Cal. 1977).
3
In its review of the record, the district court considered facts developed
in the California courts as well as before the magistrate judge. Because we
should judge the reasonableness of the state court’s finding of untimeli-
ness by the facts that were in the state court record, see 28 U.S.C.
§ 2254(d)(2), our decision rests solely on the facts developed in the Cali-
fornia state courts.
MARSHALL v. TAYLOR 579
court concluded that the California Court of Appeal properly
denied Marshall’s request as untimely because the denial was
based on neither an unreasonable application of Supreme
Court precedent nor an unreasonable interpretation of the
record. Consequently, the district court denied Marshall’s
petition.
Marshall appeals the district court decision arguing (1) that
the California Court of Appeal’s decision was contrary to
Faretta and (2) that its factual finding of untimeliness was
based on an unreasonable determination of the facts. We con-
clude that the California Court of Appeal properly complied
with Supreme Court precedent when it affirmed the trial court
based on untimeliness grounds. Furthermore, we conclude
that because the record supports the court of appeal’s affir-
mance, the decision rested on a reasonable determination of
the facts. We therefore affirm the district court’s denial of
Marshall’s habeas petition.
II. STANDARD OF REVIEW
We review de novo a district court’s decision to grant or
deny a petition by a state prisoner for a writ of habeas corpus.4
“In conducting our review, we look to the last reasoned state-
court decision.”5
III. ANALYSIS
Marshall is entitled to habeas relief only if the California
Court of Appeal’s decision was “contrary to . . . clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States,”6 or if the decision “was based on an unrea-
4
Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).
5
Id. In this case, because the California Supreme Court denied review,
we review the court of appeal’s decision.
6
28 U.S.C. § 2254(d)(1). Under 28 U.S.C. § 2254(d)(1) a habeas peti-
tioner is also entitled to relief if a state court’s decision was an unreason-
able application of clear Supreme Court precedent. However, Marshall has
not argued this possible ground for relief. Accordingly, we do not discuss
it.
580 MARSHALL v. TAYLOR
sonable determination of the facts in light of the evidence
presented in the State court proceeding.”7
A. The California Court of Appeal’s decision was a
consistent application of clearly established
Supreme Court law
The only definitive source of clearly established federal law
under 28 U.S.C. § 2254(d) is Supreme Court precedent exist-
ing at the time of the state court’s decision.8 Supreme Court
precedent includes not only the bright-line rules it establishes
but also the legal principles and standards flowing from them.9
[1] Supreme Court precedent regarding the permissible tim-
ing of a Faretta request is scarce. No Supreme Court case has
directly addressed the timing of a request for self-
representation. However, the holding in Faretta indirectly
incorporated a timing element.10 In Faretta, the Court men-
tioned that Faretta’s request was “[w]ell before the date of
trial,”11 and “weeks before trial.”12 It then held that “[i]n forc-
ing Faretta, under these circumstances, to accept against his
will a state-appointed public defender, the California courts
deprived him of his constitutional right to conduct his own
defense.”13 Thus, the Supreme Court incorporated the facts of
7
28 U.S.C. § 2254(d)(2).
8
Williams v. Taylor, 529 U.S. 362, 412 (2000); Clark v. Murphy, 331
F.3d 1062, 1069 (9th Cir. 2003).
9
See Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002).
10
The Court also mentioned the timing of the self-representation request
in McKaskle v. Wiggins, 465 U.S. 168, 172 (1984) (detailing that the
defendant’s request was renewed the day before trial); however, the timing
of the request was not raised as an issue in that case. See Wiggins v.
Estelle, 681 F.2d 266, 268 (5th Cir. 1982), overruled by McKaskle, 465
U.S. 168.
11
Faretta, 422 U.S. at 807.
12
Id. at 835.
13
Id. at 836 (emphasis added).
MARSHALL v. TAYLOR 581
Faretta into its holding. Accordingly, the holding may be read
to require a court to grant a Faretta request when the request
occurs “weeks before trial.” However, the holding does not
define when such a request would become untimely.
Moore v. Calderon14 acknowledged this reading of Faretta.
In Moore, we determined that a timeliness element in a
Faretta request is “clearly established Federal law, as deter-
mined by the Supreme Court.”15 The Ninth Circuit did not
define the timing element prescribed by Supreme Court prece-
dent, however. It merely acknowledged it. Thus, after Moore,
we know that Faretta clearly established some timing ele-
ment, but we still do not know the precise contours of that
element. At most, we know that Faretta requests made
“weeks before trial” are timely.
[2] Because the Supreme Court has not clearly established
when a Faretta request is untimely, other courts are free to do
so as long as their standards comport with the Supreme
Court’s holding that a request “weeks before trial” is timely.16
In Windham, the California Supreme Court held that a Faretta
request must be made a reasonable amount of time before trial.17
14
108 F.3d 261, 265 (9th Cir. 1997), abrogated on other grounds by
Williams, 529 U.S. 362, as recognized by Baker v. City of Blaine, 221 F.3d
1108, 1110 n.2 (9th Cir. 2000).
15
Id. (internal quotation marks omitted). As a general rule, “one three-
judge panel of this court cannot reconsider or overrule the decision of a
prior panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).
Thus, when a prior three-judge panel has held that a principle is clearly
established Supreme Court law, we are bound by the earlier panel’s deci-
sion.
16
See Williams, 529 U.S. at 412-13.
17
Windham, 560 P.2d at 1191. The Ninth Circuit has held that a Faretta
request made before the jury is impaneled is timely unless it was a tactic
to secure delay. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985).
However, “[o]ur own independent consideration of the [timing] issue is
neither relevant, nor necessary to dispose of the question presented.”
Clark, 331 F.3d at 1069.
582 MARSHALL v. TAYLOR
The California Court of Appeal applied the Windham rule in
this case to find Marshall’s request, made on the morning of
his trial, untimely. Because the timing of Marshall’s request
fell well inside the “weeks before trial” standard for timeli-
ness established by Faretta, the court of appeal’s finding of
untimeliness clearly comports with Supreme Court precedent.
Therefore, the California Court of Appeal could, and did,
properly conclude that Marshall’s request was untimely.
Accordingly, we conclude that Marshall is not entitled to
habeas relief on the basis that the California Court of
Appeal’s decision based on untimeliness was contrary to clear
Supreme Court precedent.
B. The California Court of Appeal’s decision was
based on a reasonable determination of the facts
[3] The California Court of Appeal was free to affirm the
trial court on any basis supported by the record.18 In this case,
the record supports the court of appeal’s affirmance on
untimeliness grounds. Marshall made his request to represent
himself on the day his trial was to commence and after several
continuances of his trial. Moreover, Marshall presented no
facts to show that his last-minute request was reasonable.
Thus, he could have made his request much earlier than the
day of trial. These unrebutted facts19 provide clear support for
the California Court of Appeal’s decision that Marshall’s
Faretta request was untimely.20 Therefore, Marshall is not
18
See Hamilton v. Groose, 28 F.3d 859, 862 n.3 (8th Cir. 1994) (stating
that where “the state court record fairly support[ed] the [state appellate
court’s] finding that [defendant] did not unequivocally invoke his right to
represent himself,” it did not matter that state trial judge, in denying
Faretta request, “expressed his concerns about [defendant’s] ability to rep-
resent himself”).
19
We must accept the court of appeal’s factual determinations as correct
unless Marshall rebutted them with clear and convincing evidence. 28
U.S.C. § 2254(e)(1). Marshall did not do so.
20
This is not a case where timeliness “could not have been, and was not
in fact, the reason for the trial court’s decision.” Bribiesca v. Galaza, 215
MARSHALL v. TAYLOR 583
entitled to habeas relief on the ground that the court of
appeal’s decision was based on an unreasonable determina-
tion of the facts.
IV. CONCLUSION
Marshall’s arguments that (1) the California Court of
Appeal’s decision was contrary to Faretta and that (2) the
court’s finding of untimeliness was based on an unreasonable
determination of the facts are unpersuasive. In the absence of
clear Supreme Court precedent defining when a Faretta
request becomes untimely, the California Court of Appeal
was free to determine that under California’s Windham rule,
Marshall’s request on the day of trial was untimely. The court
of appeal did so. Thus, the court of appeal’s affirmance rested
on state law consistent with Supreme Court precedent. Addi-
tionally, the record clearly supported the court of appeal’s
finding of untimeliness. Thus, the court of appeal’s affir-
mance rested on a reasonable determination of the facts. As
a result, Marshall has not established grounds for habeas relief
pursuant to 28 U.S.C. § 2254(d). Therefore, we affirm the dis-
trict court’s denial of Marshall’s habeas corpus petition.
AFFIRMED.
F.3d 1015, 1020 (9th Cir. 2000) (emphasis added). Nor is it a case where
“nothing in the record suggests that the trial court would have denied the
motion on timeliness grounds had it believed that [Marshall] was compe-
tent to represent [him]self.” Van Lynn, 347 F.3d at 741.
| {
"pile_set_name": "FreeLaw"
} |
91 N.J. 488 (1982)
453 A.2d 527
MELVIN M. MAHONEY, PLAINTIFF-RESPONDENT,
v.
JUNE LEE MAHONEY, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued September 13, 1982.
Decided December 15, 1982.
*491 Joseph C. Glavin, Jr., argued the cause for appellant (Schumann, Hession, Kennelly & Dorment, attorneys).
Charles J. Casale, Jr., argued the cause for respondent.
The opinion of the Court was delivered by PASHMAN, J.
Once again the Court must interpret this state's law regarding the distribution of marital property upon divorce. The question here is whether the defendant has the right to share the value of a professional business (M.B.A.) degree earned by *492 her former husband during their marriage. The Court must decide whether the plaintiff's degree is "property" for purposes of N.J.S.A. 2A:34-23, which requires equitable distribution of "the property, both real and personal, which was legally and beneficially acquired ... during the marriage." If the M.B.A. degree is not property, we must still decide whether the defendant can nonetheless recover the money she contributed to her husband's support while he pursued his professional education. For the reasons stated below, we hold that the plaintiff's professional degree is not property and therefore reject the defendant's claim that the degree is subject to equitable distribution. To this extent, we concur in the reasoning of the Appellate Division. Notwithstanding this concurrence, we reverse the judgment of the Appellate Division, which had the effect of denying the defendant any remedial relief for her contributions toward her husband's professional education and remand for further proceedings.
I
When the parties married in Indiana in 1971, plaintiff, Melvin Mahoney, had an engineering degree and defendant, June Lee Mahoney, had a bachelor of science degree. From that time until the parties separated in October 1978 they generally shared all household expenses. The sole exception was the period between September 1975 and January 1977, when the plaintiff attended the Wharton School of the University of Pennsylvania and received an M.B.A. degree.
During the 16-month period in which the plaintiff attended school, June Lee Mahoney contributed about $24,000 to the household. Her husband made no financial contribution while he was a student. Melvin's educational expenses of about $6,500 were paid for by a combination of veterans' benefits and a payment from the Air Force. After receiving his degree, the plaintiff went to work as a commercial lending officer for Chase Manhattan Bank.
*493 Meanwhile, in 1976 the defendant began a part-time graduate program at Rutgers University, paid for by her employer, that led to a master's degree in microbiology one year after the parties had separated. June Lee worked full time throughout the course of her graduate schooling.
In March 1979, Melvin Mahoney sued for divorce; his wife filed a counterclaim also seeking a divorce. In May 1980, the trial court granted dual judgments of divorce on the ground of 18 months continuous separation.
At the time of trial, plaintiff's annual income was $25,600 and defendant's income was $21,000. No claim for alimony was made. The parties owned no real property and divided the small amount of their personal property by agreement.
The only issue at trial was the defendant's claim for reimbursement of the amount of support she gave her husband while he obtained his M.B.A. degree. Defendant sought 50% of the $24,000 she had contributed to the household during that time, plus one-half of the $6,500 cost of her husband's tuition.
The trial court decided that defendant should be reimbursed, 175 N.J. Super. 443 (Ch.Div. 1980), holding that "the education and degree obtained by plaintiff, under the circumstances of this case, constitute a property right...." Id. at 447. However, the court did not attempt to determine the value of plaintiff's M.B.A. degree. Instead, finding that in this case "[t]o ignore the contributions of the sacrificing spouse would be ... an unjust enrichment of the educated spouse," id. at 446, the court ordered the award of a "reasonable sum as a credit [for]... the maintenance of the household and the support of plaintiff during the educational period." Id. at 447. Plaintiff was ordered to reimburse his wife in the amount of $5,000, to be paid at the rate of $100 per month. The court did not explain why it chose this amount.
Plaintiff appealed to the Appellate Division, which reversed the award. 182 N.J. Super. 598 (1982). It not only rejected defendant's claim for reimbursement but also held that neither a *494 professional license nor an educational degree is "property" for the purposes of the equitable distribution statute, N.J.S.A. 2A:34-23. In so holding, the Appellate Division stated that it was bound by Stern v. Stern, 66 N.J. 340, 345 (1975), where the Court held that "a person's earning capacity ... should not be recognized as a separate, particular item of property within the meaning of N.J.S.A. 2A:34-23." (footnote omitted). The Appellate Division noted that if enhanced earning capacity is not property, then "neither is the license or degree, which is merely the memorialization of the attainment of the skill, qualification and educational background which is the prerequisite of the enhanced earning capacity...." 182 N.J. Super. at 605. The court noted that degrees and licenses lack many of the attributes of most property rights, id. at 605, and that their value is not only speculative, id. at 609, but also may be fully accounted for by way of alimony and equitable division of the other assets. Id. at 607.
In rejecting defendant's claim for reimbursement, the Appellate Division disapproved of the attempt to measure the contributions of the parties to one another or to their marriage. The court cited with approval Wisner v. Wisner, 129 Ariz. 333, 631 P. 2d 115, 123 (Ct.App. 1981), where an Arizona appeals court stated:
[I]t is improper for a court to treat a marriage as an arm's length transaction by allowing a spouse to come into court after the fact and make legal arguments regarding unjust enrichment....
... [C]ourts should assume, in the absence of contrary proof, that the decision [to obtain a professional degree] was mutual and took into account what sacrifices the community [of husband and wife] needed to make in the furtherance of that decision. [emphasis in original]
The Appellate Division saw no need to distinguish contributions made toward a spouse's attainment of a license or degree from other contributions, calling such special treatment "a kind of elitism which inappropriately depreciates the value of all the other types of contributions made to each other by other spouses...." 182 N.J. Super. at 613. Finally, the court noted that in this case each spouse left the marriage "with comparable earning *495 capacity and comparable educational achievements." Id. at 615. The court did not order a remand.
We granted certification, 91 N.J. 191 (1982).
II
This case first involves a question of statutory interpretation. The Court must decide whether the Legislature intended an M.B.A. degree to be "property" so that, if acquired by either spouse during a marriage, its value must be equitably distributed upon divorce. In determining whether the Legislature intended to treat an M.B.A. degree as property under N.J.S.A. 2A:34-23, the Court gains little guidance from traditional rules of statutory construction. There is no legislative history on the meaning of the word "property" in the equitable distribution statute, L. 1971, c. 212, N.J.S.A. 2A:34-23, and the statute itself offers no guidance.[1] Therefore, statutory construction in this case means little more than an inquiry into the extent to which professional degrees and licenses share the qualities of other things that the Legislature and courts have treated as property.
Regarding equitable distribution, this Court has frequently held that an "expansive interpretation [is] to be given to the word `property,'" Gauger v. Gauger, 73 N.J. 538, 544 (1977). Accord Kruger v. Kruger, 73 N.J. 464, 468 (1977); Painter v. Painter, 65 N.J. 196, 217 (1974). New Jersey courts have subjected a broad range of assets and interests to equitable distribution including vested but unmatured private pensions, Kikkert v. Kikkert, 88 N.J. 4 (1981); military retirement pay and disability benefits, Kruger v. Kruger,[2]supra; unliquidated claims for *496 benefits under workers' compensation, Hughes v. Hughes, 132 N.J. Super. 559 (Ch.Div. 1975); and personal injury claims, DiTolvo v. DiTolvo, 131 N.J. Super. 72, 80-82 (App.Div. 1974). But see Amato v. Amato, 180 N.J. Super. 210 (App.Div. 1981) (reversing trial court's equitable distribution award requiring wife to give husband 25% of any proceeds she might recover for medical malpractice that occurred during the marriage).
This Court, however, has never subjected to equitable distribution an asset whose future monetary value is as uncertain and unquantifiable as a professional degree or license. The Appellate Division discussed at some length the characteristics that distinguish professional licenses and degrees from other assets and interests, including intangible ones, that courts equitably distribute as marital property. Quoting from In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75, 77 (1978), in which the Colorado Supreme Court held that an M.B.A. degree is not subject to equitable distribution, the court stated:
An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of the concept of "property." It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term. [182 N.J. Super. at 605]
A professional license or degree is a personal achievement of the holder. It cannot be sold and its value cannot readily be determined. A professional license or degree represents the opportunity to obtain an amount of money only upon the occurrence of highly uncertain future events. By contrast, the vested but unmatured pension at issue in Kikkert, supra, entitled the owner to a definite amount of money at a certain future date.
The value of a professional degree for purposes of property distribution is nothing more than the possibility of enhanced earnings that the particular academic credential will *497 provide. In Stern v. Stern, 66 N.J. 340, 345 (1975), we held that a lawyer's
earning capacity, even where its development has been aided and enhanced by the other spouse ... should not be recognized as a separate, particular item of property within the meaning of N.J.S.A. 2A:34-23. Potential earning capacity ... should not be deemed property as such within the meaning of the statute. [footnote omitted][3]
Equitable distribution of a professional degree would similarly require distribution of "earning capacity" income that the degree holder might never acquire. The amount of future earnings would be entirely speculative. Moreover, any assets resulting from income for professional services would be property acquired after the marriage; the statute restricts equitable distribution to property acquired during the marriage. N.J.S.A. 2A:34-23. Accord In re Marriage of Aufmuth, 89 Cal. App.3d 446, 152 Cal. Rptr. 668, 678 (1979).
Valuing a professional degree in the hands of any particular individual at the start of his or her career would involve a gamut of calculations that reduces to little more than guesswork. As the Appellate Division noted, courts would be required to determine far more than what the degree holder could earn in the new career. The admittedly speculative dollar amount of
earnings in the "enhanced" career [must] be reduced by the ... income the spouse should be assumed to have been able to earn if otherwise employed. In our view [this] is ordinarily nothing but speculation, particularly when it is fair to assume that a person with the ability and motivation to complete professional training or higher education would probably utilize those attributes in concomitantly productive alternative endeavors. [182 N.J. Super. at 609]
Even if such estimates could be made, however, there would remain a world of unforeseen events that could affect the earning potential not to mention the actual earnings of any particular degree holder.
*498 A person qualified by education for a given profession may choose not to practice it, may fail at it, or may practice in a speciality, location or manner which generates less than the average income enjoyed by fellow professionals. The potential worth of the education may never be realized for these or many other reasons. An award based upon the prediction of the degree holder's success at the chosen field may bear no relationship to the reality he or she faces after the divorce. [DeWitt v. DeWitt, 98 Wis.2d 44, 296 N.W.2d 761, 768 (Ct.App. 1980) (footnote omitted)]
Moreover, the likelihood that an equitable distribution will prove to be unfair is increased in those cases where the court miscalculates the value of the license or degree.
The potential for inequity to the failed professional or one who changes careers is at once apparent; his or her spouse will have been awarded a share of something which never existed in any real sense. [Id.]
The finality of property distribution precludes any remedy for such unfairness. "Unlike an award of alimony, which can be adjusted after divorce to reflect unanticipated changes in the parties' circumstances, a property division may not [be adjusted]." Id. (footnote omitted).
Because of these problems, most courts that have faced the issue have declined to treat professional degrees and licenses as marital property subject to distribution upon divorce. See, e.g., Wisner, supra (medical license); Frausto v. Frausto, 611 S.W.2d 656 (Tex.Civ.App. 1981) (medical license); DeWitt, supra (law degree); Aufmuth, supra (law degree); Graham, supra (M.B.A.); Wilcox v. Wilcox, 173 Ind. App. 661, 365 N.E.2d 792 (1977) (Ph.D. degree); Todd v. Todd, 272 Cal. App.2d 786, 78 Cal. Rptr. 131 (1969) (law degree). Several courts, while not treating educational degrees as property, have awarded the supporting spouse an amount based on the cost to the supporting spouse of obtaining the degree. In effect, the supporting spouse was reimbursed for her financial contributions used by the supported spouse in obtaining a degree. See, e.g., DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 759 (Minn. 1981) (medical degree); Hubbard v. Hubbard, 603 P.2d 747, 751 (Okla. 1979) (medical degree); In re Marriage of Horstmann, 263 N.W.2d 885, 891 (Iowa 1978) (law degree). Cf. Inman v. Inman, 578 S.W.2d 266, 269 (Ky. Ct. App. 1979) (dental license held to be property but measure *499 of wife's interest was amount of investment in husband's education).
Even if it were marital property, valuing educational assets in terms of their cost would be an erroneous application of equitable distribution law. As the Appellate Division explained, the cost of a professional degree "has little to do with any real value of the degree and fails to consider at all the nonfinancial efforts made by the degree holder in completing his course of study." 182 N.J. Super. at 610. See also DeWitt, supra, 296 N.W.2d at 767. Once a degree candidate has earned his or her degree, the amount that a spouse or anyone else paid towards its attainment has no bearing whatever on its value. The cost of a spouse's financial contributions has no logical connection to the value of that degree.
As the Appellate Division correctly noted, "the cost approach [to equitable distribution] is plainly not conceptually predicated on a property theory at all but rather represents a general notion of how to do equity in this one special situation." 182 N.J. Super. at 610. Equitable distribution in these cases derives from the proposition that the supporting spouse should be reimbursed for contributions to the marital unit that, because of the divorce, did not bear its expected fruit for the supporting spouse.
The trial court recognized that the theoretical basis for the amount of its award was not equitable distribution, but rather reimbursement. It held that "the education and degree obtained by plaintiff, under the circumstances of this case, constitute a property right subject to equitable offset upon the dissolution of the marriage." 175 N.J. Super. at 447 (emphasis added). The court allowed a "reasonable sum as a credit ... on behalf of the maintenance of the household and the support of the plaintiff during the educational period." Id. Although the court found that the degree was distributable property, it actually reimbursed the defendant without attempting to give her part of the value of the degree.
*500 This Court does not support reimbursement between former spouses in alimony proceedings as a general principle. Marriage is not a business arrangement in which the parties keep track of debits and credits, their accounts to be settled upon divorce. Rather, as we have said, "marriage is a shared enterprise, a joint undertaking ... in many ways it is akin to a partnership." Rothman v. Rothman, 65 N.J. 219, 229 (1974); see also Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 141 (1980). But every joint undertaking has its bounds of fairness. Where a partner to marriage takes the benefits of his spouse's support in obtaining a professional degree or license with the understanding that future benefits will accrue and inure to both of them, and the marriage is then terminated without the supported spouse giving anything in return, an unfairness has occurred that calls for a remedy.
In this case, the supporting spouse made financial contributions towards her husband's professional education with the expectation that both parties would enjoy material benefits flowing from the professional license or degree. It is therefore patently unfair that the supporting spouse be denied the mutually anticipated benefit while the supported spouse keeps not only the degree, but also all of the financial and material rewards flowing from it.
Furthermore, it is realistic to recognize that in this case, a supporting spouse has contributed more than mere earnings to her husband with the mutual expectation that both of them she as well as he will realize and enjoy material improvements in their marriage as a result of his increased earning capacity. Also, the wife has presumably made personal financial sacrifices, resulting in a reduced or lowered standard of living. Additionally, her husband, by pursuing preparations for a future career, has foregone gainful employment and financial contributions to the marriage that would have been forthcoming had he been employed. He thereby has further reduced the level of support his wife might otherwise have received, as well as the standard of living both of them would have otherwise enjoyed. In effect, *501 through her contributions, the supporting spouse has consented to live at a lower material level while her husband has prepared for another career. She has postponed, as it were, present consumption and a higher standard of living, for the future prospect of greater support and material benefits. The supporting spouse's sacrifices would have been rewarded had the marriage endured and the mutual expectations of both of them been fulfilled. The unredressed sacrifices loss of support and reduction of the standard of living coupled with the unfairness attendant upon the defeat of the supporting spouse's shared expectation of future advantages, further justify a remedial reward. In this sense, an award that is referable to the spouse's monetary contributions to her partner's education significantly implicates basic considerations of marital support and standard of living factors that are clearly relevant in the determination and award of conventional alimony.
To provide a fair and effective means of compensating a supporting spouse who has suffered a loss or reduction of support, or has incurred a lower standard of living, or has been deprived of a better standard of living in the future, the Court now introduces the concept of reimbursement alimony into divorce proceedings. The concept properly accords with the Court's belief that regardless of the appropriateness of permanent alimony or the presence or absence of marital property to be equitably distributed, there will be circumstances where a supporting spouse should be reimbursed for the financial contributions he or she made to the spouse's successful professional training. Such reimbursement alimony should cover all financial contributions towards the former spouse's education, including household expenses, educational costs, school travel expenses and any other contributions used by the supported spouse in obtaining his or her degree or license.
This result is consistent with the remedial provisions of the matrimonial statute. N.J.S.A. 2A:34-23. A basic purpose of alimony relates to the quality of economic life to which one *502 spouse is entitled and that becomes the obligation of the other. Alimony has to do with support and standard of living. See Khalaf v. Khalaf, 58 N.J. 63, 69 (1971). We have recently recognized the relevance of these concepts in accepting the notion of rehabilitative alimony, which is consonant with the basic underlying rationale that a party is entitled to continue at a customary standard of living inclusive of costs necessary for needed educational training. Lepis v. Lepis, 83 N.J. 139, 155 n. 9.
The statute recognizes that alimony should be tailored to individual circumstances, particularly those relating to the financial status of the parties. Thus, in all actions for divorce (fault and no-fault), when alimony is awarded, the court should consider actual need, ability to pay and duration of the marriage. In a "fault" divorce, however, the court "may consider also the proofs made in establishing such ground in determining... alimony ... that is fit, reasonable and just." N.J.S.A. 2A:34-23. There is nothing in the statute to suggest that the standards for awarding alimony are mutually exclusive. Consequently, the financial contributions of the parties during the marriage can be relevant. Financial dishonesty or financial unfairness between the spouses, or overreaching also can be material. The Legislature has not precluded these considerations. Nothing in the statute precludes the court from considering marital conduct such as one spouse contributing to the career of the other with the expectation of material benefit in fashioning alimony awards. See Lepis v. Lepis, supra. The flexible nature of relief in a matrimonial cause is also evidenced by the equitable distribution remedy that is provided in the same section of the matrimonial statute.
The Court does not hold that every spouse who contributes toward his or her partner's education or professional training is entitled to reimbursement alimony. Only monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and *503 material benefits should be a basis for such an award. For example, it is unlikely that a financially successful executive's spouse who, after many years of homemaking, returns to school would upon divorce be required to reimburse her husband for his contributions toward her degree. Reimbursement alimony should not subvert the basic goals of traditional alimony and equitable distribution.
In proper circumstances, however, courts should not hesitate to award reimbursement alimony. Marriage should not be a free ticket to professional education and training without subsequent obligations. This Court should not ignore the scenario of the young professional who after being supported through graduate school leaves his mate for supposedly greener pastures. One spouse ought not to receive a divorce complaint when the other receives a diploma.[4] Those spouses supported through professional school should recognize that they may be called upon to reimburse the supporting spouses for the financial contributions they received in pursuit of their professional training. And they cannot deny the basic fairness of this result.[5]
As we have stated, reimbursement alimony will not always be appropriate or necessary to compensate a spouse who has contributed *504 financially to the partner's professional education or training. "Rehabilitative alimony" may be more appropriate in cases where a spouse who gave up or postponed her own education to support the household requires a lump sum or a short-term award to achieve economic self-sufficiency. The Court specifically approved of such limited alimony awards in Lepis v. Lepis, 83 N.J. 139, 155 n. 9 (1980), stating that we did "not share the view that only unusual cases will warrant the `rehabilitative alimony' approach." However, rehabilitative alimony would not be appropriate where the supporting spouse is unable to return to the job market, or has already attained economic self-sufficiency.
Similarly, where the parties to a divorce have accumulated substantial assets during a lengthy marriage, courts should compensate for any unfairness to one party who sacrificed for the other's education, not by reimbursement alimony but by an equitable distribution of the assets to reflect the parties' different circumstances and earning capacities. In Rothman, supra, the Court explicitly rejected the notion that courts should presume an equal division of marital property. 65 N.J. at 232 n. 6. "Rejecting any simple formula, we rather believe that each case should be examined as an individual and particular entity." Id. If the degree-holding spouse has already put his professional education to use, the degree's value in enhanced earning potential will have been realized in the form of property, such as a partnership interest or other asset, that is subject to equitable distribution. See Stern, supra, 65 N.J. at 346-47.
The degree holder's earning capacity can also be considered in an award of permanent alimony.[6] Alimony awards *505 under N.J.S.A. 2A:34-23 must take into account the supporting spouse's ability to pay; earning capacity is certainly relevant to this determination. Our courts have recognized that a primary purpose of alimony, besides preventing either spouse from requiring public assistance, is "to permit the wife, who contributed during marriage to the accumulation of the marital assets, to share therein." Lynn v. Lynn, 153 N.J. Super. 377, 382 (Ch.Div. 1977), rev'd on other grounds, 165 N.J. Super. 328 (App.Div. 1979); accord Gugliotta v. Gugliotta, 160 N.J. Super. 160, 164 (Ch.Div.), aff'd, 164 N.J. Super. 139 (App.Div. 1978). Even though the enhanced earning potential provided by a degree or license is not "property" for purposes of N.J.S.A. 2A:34-23, it clearly should be a factor considered by the trial judge in determining a proper amount of alimony. If the degree holder's actual earnings turn out to diverge greatly from the court's estimate, making the amount of alimony unfair to either party, the alimony award can be adjusted accordingly.
III
We stated in Stern, supra, that while earning potential should not be treated as a separate item of property,
[p]otential earning capacity is doubtless a factor to be considered by a trial judge in determining what distribution will be "equitable" and it is even more obviously relevant upon the issue of alimony. [66 N.J. at 345]
We believe that Stern presents the best approach for achieving fairness when one spouse has acquired a professional degree or license during the marriage. Courts may not make any permanent distribution of the value of professional degrees and licenses, whether based upon estimated worth or cost. However, where a spouse has received from his or her partner financial contributions used in obtaining a professional degree or license with the expectation of deriving material benefits for both marriage partners, that spouse may be called upon to reimburse the supporting spouse for the amount of contributions received.
*506 In the present case, the defendant's financial support helped her husband to obtain his M.B.A. degree, which assistance was undertaken with the expectation of deriving material benefits for both spouses. Although the trial court awarded the defendant a sum as "equitable offset" for her contributions, the trial court's approach was not consistent with the guidelines we have announced in this opinion. Therefore, we are remanding the case so the trial court can determine whether reimbursement alimony should be awarded in this case and, if so, what amount is appropriate.
The judgment of the Appellate Division is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
For reversal and remandment Chief Justice WILENTZ and Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O'HERN 7.
For affirmance None.
NOTES
[1] The 1980 amendments to the law, L. 1980, c. 181, which excluded from equitable distribution property acquired after the marriage by way of gift, devise or bequest, had no bearing on the issue of what types of chattels or interests should be treated as property.
[2] In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that federal military retirement pay was not subject to state divorce laws. On September 8, 1982, this holding was overruled by the enactment of the "Uniformed Services Former Spouses' Protection Act," 10 U.S.C. § 1401 note, § 1408(c)(1).
[3] A professional degree should not be equated with goodwill which as we noted in Stern, may, in a given case, add economic worth to a property interest. Stern v. Stern, 66 N.J. at 346-47 n. 5 (1975).
[4] New York Times, Nov. 21, 1982, at p. 72, col. 2.
[5] This decision recognizes the fairness of an award of reimbursement alimony for past contributions to a spouse's professional education that were made with the expectation of mutual economic benefit. We need not in the present posture of this case determine the degree of finality or permanency that should be accorded an award of reimbursement alimony as compared to conventional alimony. As noted, an award of reimbursement alimony combines elements relating to the support, standard of living and financial expectations of the parties with notions of marital fairness and avoidance of unjust enrichment. We must also recognize that, while these cases frequently illustrate common patterns of human behavior and experience among married couples, circumstances vary among cases. Consequently, it would be unwise to attempt to anticipate all of the ramifications that flow from our present recognition of a right to reimbursement alimony. We therefore leave for future cases questions as to whether and under what changed circumstances such awards may be modified or adjusted.
[6] It should be noted that alimony is not generally available for a self-supporting spouse under the laws of Minnesota, see DeLa Rosa, supra, 309 N.W.2d at 758, or Kentucky, see Inman, supra, 578 S.W.2d at 270, two states that have treated professional licenses as property. Those states are thus handicapped in their ability to do equity in situations where little or no marital property has been accumulated and the supporting spouse does not qualify for maintenance unless they treat professional licenses as property.
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242 Ind. 593 (1962)
181 N.E.2d 18
STATE EX REL. CRAWFORD ET AL.
v.
HOWARD CIRCUIT COURT, SMITH, SPECIAL JUDGE.
No. 30,160.
Supreme Court of Indiana.
Filed March 14, 1962.
*594 Donald J. Bolinger, of Kokomo, Charles Salyer, of Anderson, and John S. Grimes, of Indianapolis, for relators.
Marshall, Hillis, Hillis & Button, of Kokomo, Powers & Powers and Morrison & Morrison, both of Frankfort, for respondents.
LANDIS, J.
This is an original action for writ of mandate and prohibition asking that respondent court and the Hon. William B. Smith, as special judge thereof, be commanded to grant a jury trial upon a petition to determine heirship filed in the estate of Tressie Stuart, deceased.
Relators are certain persons alleging themselves to be the sole heirs of said Tressie Stuart, claiming heirship as the children of an alleged illegitimate daughter of the father of deceased.
The record before us shows that letters of administration were issued on decedent's estate in 1957, and that on February 18, 1960, a petition to determine heirship was filed in the estate by the joint administrators thereof. Thereafter on October 25, 1960, relators filed answer to the petition to determine heirship and also filed a cross-petition to determine heirship. A change of judge was taken, and relators on July 28, 1961, filed motion for a trial by jury, to which the administrators filed objections, and said objections were sustained by the court. Relators have now petitioned this Court to mandate the lower court to grant a trial by jury on the issues presented by the petition to determine heirship.
The Probate Code of 1953, making provision for the determination of heirship in an estate (Burns' § 6-606, 1953 Repl.), provides as follows:
*595 "Heirs Time for determination. (a) At any time during the administration of a decedent's estate, the personal representative or any interested person may petition the court to determine the heirs of said decedent and their respective interests in the estate or any part thereof. Upon the filing of the petition the court shall fix the time for the hearing thereof, notice of which shall be given to all persons known or believed to claim or have any interest in the estate or any part thereof as heir or through an heir of the decedent. In addition, notice by publication shall be given to all unknown heirs of the decedent.
"(b) Upon the hearing of the petition, heirship may be determined by competent evidence or, if there be no objection, by affidavit. A record shall be made of all oral evidence, and such record and all affidavits shall remain as part of the files in the estate proceeding.
"(c) Upon satisfactory proof the court shall make a decree determining the heirs of the decedent and their respective interests in the estate or any part thereof.
"(d) The decree of court as provided in (c) hereof shall be conclusive of the facts determined therein on any interested person who has been notified personally or by mail in accordance with the provisions of this Code, subject to the right of appeal.
"(e) All acts of the personal representative which were lawful when performed according to the facts determined by the decree as provided in (c) hereof, shall be valid insofar as concerns the rights and liability of a purchaser, lessee or other person dealing with the personal representative for value and in good faith and insofar as concerns a personal representative who has acted in good faith." Acts 1953, ch. 112, § 606, pp. 295, 320.
The comments of the Probate Code Study Commission concerning this section are:
*596 "This section is new to Indiana. It authorizes the determination of heirship at any time during administration. Many situations may arise where it will be advantageous to the estate to know definitely who the heirs are before waiting until time for distribution. It is believed that this section will prove very helpful in cases where there are numerous heirs and heirship is in dispute. The provisions of this section are self-explanatory."
The former law (Burns' § 6-1502), repealed by the Probate Code of 1953 provided:
"Proof of heirship or right to distributive share. When a final settlement account shall have been filed, and notice given to the heirs, devisees, and legatees to prove their claims to the surplus, as hereinbefore provided, they shall appear before the court, in person or by attorney, and, in the case of infants and persons of unsound mind, by their guardians, and make proof of their heirship or other title to such surplus." Acts 1881 (Spec. Sess.), ch. 45, § 180, p. 423, 468; 1883, ch. 121, § 28, p. 151, 162.
We have not been cited any authorities of this or other jurisdictions determining the question of whether a jury trial is authorized or proper under a statute such as Burns' § 6-606 (1953 Repl.), supra.
However, under the former law above cited, this Court in the case of Sherwood, Administrator v. Thomasson (1890), 124 Ind. 541, 24 N.E. 334, was confronted with an application by a claimant for a widow's allowance of $500.00 from the funds in the hands of the administrator. The lower court over the objection of appellant submitted the cause to a jury for trial, which this Court held on appeal was error, reversing the judgment. It was stated in such opinion (p. 543 of 124 Ind., and p. 335 of 24 N.E.):
*597 "Anciently the administrator or ordinary, in right of the king, himself appropriated the residue of an intestate's estate, after payment of the debts, assuming to devote certain portions to pious uses, and to give certain other portions to the widow and children, if there were any. Statutes were afterwards passed which provided in detail for the distribution of the surplus of all estates. Enactments of this character are found in all the States.
"It will appear from an examination of the statutes in this State that provision has been made whereby the court may order distribution to be made from time to time among creditors where claims have been allowed, and that after the filing of a final account showing a surplus for distribution, the court may, after hearing the proof, order distribution among the parties applying and proving their titles to their respective shares in such surplus. Elliott's Supp., sections 400, 409. Such a proceeding is regarded as equitable in its nature, the court having the authority to take into account any proper matter of set-off, such as advancements or the like, which ought to be deducted from the share of a distributee, and no jury trial is contemplated or allowable. Where claims have been filed against an estate, and, after having been disallowed, are transferred to the docket for trial, `The trial of such claim shall be conducted as in ordinary civil cases.' Elliott's Supp., section 392. In such a case a jury trial may or may not be allowable, depending upon the nature of the claim. But where an application is made for an order upon an administrator to pay over a sum of money out of a fund which remains in his hands for distribution, to one who claims as a distributee, no jury is allowable.
"The present is not a claim against an estate in the ordinary acceptation. Shaffer v. Richardson, 27 Ind. 122 (129). The claimant's right to a specified sum depends upon her relation to the decedent. When her relation is established her right to participate in the fund to an amount fixed by law is absolute, unless that right has been forfeited by her misconduct, or unless some *598 equitable set-off sufficient to discharge the amount can be established. It is the duty of the court to hear the proof, and after determining who is entitled to the fund to order it paid to the parties proving their titles to their respective shares. Roberts v. Huddleston, 93 Ind. 173; Taylor v. Wright, 93 Ind. 121."
In our judgment Burns' § 6-606 (1953 Repl.), supra, did not change the nature of the proceeding to determine heirship recognized under our law prior to the enactment of such section in 1953. As was stated in the case of Miller v. Bode, Admr. (1923), 80 Ind. App. 338, 334, 139 N.E. 456, 458 (decided prior to the enactment of said section), the proper procedure to prove heirship or the right to a share in the surplus of an estate for distribution is to file a petition averring therein the petitioner's relation to the decedent and all other facts necessary to establish his right to participate in the fund for distribution. The new act did, however, provide the petition could be filed at any time during administration and contained provisions as to notice, hearing and decree.
It may be noted that there is no provision in the Probate Code of 1953 to the effect that proceedings in decedents' estates shall be governed by the rules pertaining to civil actions generally. Had the legislature intended to change the law in this respect it could have made provision therefor.[1]
*599 It is our conclusion that the proceedings to determine heirship being equitable in nature as held by previous authority of this Court, a jury trial in such proceedings is not allowable or proper, and it follows the writ of mandate and prohibition sought in this action by relators must be denied.
Petition for writ of mandate and prohibition denied.
Achor, C.J., and Arterburn, Jackson and Bobbitt, JJ., concur.
NOTE. Reported in 181 N.E.2d 18.
NOTES
[1] See: Model Probate Code Comments (§ 10), (annotated under Burns' § 6-107, 1953 Repl.), wherein it is stated:
"In some states it is provided by statute that where there is no other applicable statute or rule, the rules of civil procedure may be applied.... Such legislation is not recommended. Much of the proceedings in matters of probate is administrative in character and not adversary. It is believed, therefore, that rules of civil procedure designed primarily for adversary proceedings should not be applied."
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Opinion issued January 19, 2012.
In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-01111-CV
———————————
Charles Thielemann, Appellant
V.
Alan Kethan, Appellee
On Appeal from the County Court at Law
Washington County, Texas
Trial Court Case No. 2010-152
O P I N I O N
Appellant,
Charles Thielemann, challenges the county court at law’s order dismissing, for
want of jurisdiction, his defamation claim[1] against appellee, Alan
Kethan, and awarding Kethan sanctions.[2] In three issues, Thielemann contends that the
county court at law erred in granting Kethan’s motion to dismiss and assessing
sanctions, denying Thielemann’s motion requesting that the county court at
law’s dismissal and sanctions order be voided, and granting Kethan’s amended
motion for sanctions.
We
affirm the portion of the trial court’s order dismissing the suit for want of
jurisdiction and reverse the trial court’s assessment of sanctions.
Background
On
October 20, 2010, Thielemann filed, in the county court at law, his defamation
suit against Kethan, the pastor of St. Peter’s Lutheran Church, alleging that
Kethan had written a “libelous letter” about Thielemann and distributed it to
others.
In his answer, filed on October 28,
2010, Kethan generally denied the allegations.
He then filed his motion to dismiss Thielemann’s claim for want of
jurisdiction, asserting that the county court at law lacked jurisdiction[3] to hear a defamation suit
and requesting sanctions against Thielemann for filing a groundless suit in a
court without jurisdiction. Thielemann responded
to Kethan’s motion to dismiss and request for sanctions and filed a motion to
withdraw his case in the event the county court at law lacked jurisdiction to
hear it.
After
a hearing on Kethan’s motion, the county court at law entered an order
dismissing Thielemann’s suit for want of jurisdiction and imposing sanctions in
the amount of $3,000 against him. The
court found that the suit “was groundless[,] having been filed in a court
without jurisdiction and without reasonable inquiry into the jurisdictional
limits of” the court.
On
November 24, 2010, Thielemann filed a motion requesting that the county court
at law void its order dismissing his suit for want of jurisdiction and awarding
Kethan sanctions. Kethan, on December 2,
2010, filed a “First Amended Motion for Rule 13 Sanctions.” After the court heard Thielemann’s motion to
void and Kethan’s motion for additional sanctions, it denied Thielemann’s
motion, granted Kethan’s motion, and awarded Kethan additional sanctions in the
amount of $2,500.
Subject-Matter Jurisdiction
In
his first issue, Thielemann asserts that the county court at law erred in
dismissing his suit on the ground that it, pursuant to the Texas Government
Code, did not have jurisdiction to hear a suit to recover damages for a
defamation claim. See Tex. Gov’t Code Ann.
§§ 25.0003, 25.2412, 26.043 (Vernon 2004).
He argues that the county court at law had jurisdiction over his suit because
Texas Government Code section 26.043 does not apply to statutory county courts
and applies only to constitutional county courts. See id.
§ 26.043.
Whether a trial court has
subject-matter jurisdiction is a question of law that we review de novo. Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). The
Texas Constitution and state statutes provide the sole sources of jurisdiction
for Texas courts. Chenault v. Phillips, 914 S.W.2d 140,
141 (Tex. 1996). Under the Texas Constitution, the judicial
power of the State is “vested in one Supreme Court, in one Court of Criminal
Appeals, in Courts of Appeals, in District Courts, in County Courts, in
Commissioners Courts, in Courts of Justices of the Peace, and in such other
courts as may be provided by law.” Tex. Const. art. V, § 1. The Texas Constitution also authorizes the Texas
Legislature to “establish such other courts as it may deem necessary and
prescribe the jurisdiction and organization thereof, and [to] conform the
jurisdiction of the district and other inferior courts thereto.” Id.; see id. § 15 (“There shall be established in each
county in this State a County Court . . . .”). Texas courts that are enumerated in the
constitution are referred to as “constitutional courts,” while courts that are
established pursuant to the legislature’s power to create “other courts” are referred
to as “legislative” or “statutory” courts. 1 Roy W. McDonald & Elaine A. Grafton
Carlson, Texas Civil Practice § 3:3 (2d ed. 2004); see also Tex. Gov’t Code Ann. §§ 21.009(1), (2) (Vernon 2004).
A “county court” is a court created
in each county under article V, section 15 of the Texas Constitution. Tex.
Gov’t Code Ann. § 21.009(1).
Chapter 26 of the Texas Government Code, entitled “Constitutional County
Courts,” confers jurisdiction for county courts, and provides that,
A county court has
concurrent jurisdiction with the district court in civil cases in which the
matter in controversy exceeds $500 but does not exceed $5,000, exclusive of
interest.
Id. §
26.042(d) (Vernon 2004). However, a
county court does not have jurisdiction to consider,
(1) a suit to recover
damages for slander or defamation of character,
(2)
a suit for the enforcement of a lien on land,
(3)
a suit in behalf of the state for escheat,
(4)
a suit for divorce,
(5)
a suit for the forfeiture of a corporate charter,
(6) a suit for the trial of
the right to property valued at $500 or more and levied on under a writ of
execution, sequestration or attachment,
(7)
an eminent domain case, or
(8)
a suit for the recovery of land.
Id. §
26.043.
A “statutory county court” is a
court created by the legislature under article V, section 1 of the Texas
Constitution. Id. § 21.009(2). A statutory
county court has jurisdiction over all causes and proceedings, civil and
criminal, original and appellate, prescribed by law for county courts. Id.
§ 25.0003(a). Section 25.0003 contains
the general grant of jurisdiction to all statutory county courts, and provides
as follows:
(a) A statutory county court
has jurisdiction over all causes and proceedings, civil and criminal, original
and appellate, prescribed by law for county courts.
. . . .
(c) In addition to other jurisdiction provided by
law, a statutory county court exercising civil jurisdiction concurrent with the
constitutional jurisdiction of the county court has concurrent jurisdiction
with the district court in:
(1) civil cases in which the
matter in controversy exceeds $500 but does not exceed $100,000 . . .
Id. §
25.0003.
The court at issue here is the
Washington County Court at Law, a statutory county court whose jurisdiction is
prescribed by statute. See Tex.
Gov’t Code Ann. §§ 25.0003, 25.2412.
Section 25.2412(a) provides:
In addition to the
jurisdiction provided by Section 25.0003 and other law, a county court at law
in Washington County has concurrent jurisdiction with the district court in
family law cases and proceedings.
Id. §
25.2412(a).
Thielemann asserts that the general
grant of jurisdiction in section 25.0003(c) confers jurisdiction on statutory
county courts for all types of suits with an amount in controversy between $500
and $100,000. In support of his position,
Thielemann relies on Clute Apartments 1,
Ltd. v. Lorson, No. 01-09-00514-CV, 2010 WL 5186913 (Tex. App.—Houston [1st
Dist.] Dec. 23, 2010, no pet.) (mem. op.) and Santana v. Texas Workforce Commission, No. 03-05-00452-CV, 2007 WL
2330714 (Tex. App.—Austin Aug. 16, 2007, no pet.) (mem. op.). Thielemann argues that because section
25.0003(c) gives statutory courts concurrent jurisdiction with district courts,
the Washington County court at law had jurisdiction to hear his libel/slander
case.[4]
Kethan asserts that the limitations
on the civil jurisdiction of constitutional county courts are made equally
applicable to statutory county courts by Texas Government Code section
25.0003(a), which, according to Kethan, “raises the amount in controversy
jurisdiction of [statutory county courts] above the limits otherwise set for
constitutional county courts . . . without disturbing the restrictions on
subject matter jurisdiction.”
In Lorson, this Court noted that the
general grant of jurisdiction for statutory county courts provides:
In addition
to other jurisdiction provided by law, a statutory
county court exercising civil jurisdiction concurrent with the constitutional
jurisdiction of the county court has concurrent jurisdiction with the
district court in civil cases in which the matter in controversy exceeds $500 but does not
exceed $100,000.
Id. at *3
(emphasis in original) (citing Tex.
Gov’t Code Ann. § 25.0003(c)). We
further noted that the specific grant of jurisdiction to statutory county courts
in Brazoria County provides:
In addition to the
jurisdiction provided by 25.0003 and other law, a statutory county court in
Brazoria County has concurrent jurisdiction with the district court in civil
cases in which the matter in controversy exceeds $500 but does not exceed $100,000.
Id. (citing Tex. Gov’t Code Ann. § 25.2412). Based on this language, we concluded that
“both the general and specific grants of jurisdiction expand the jurisdiction
of the statutory county courts in Brazoria County over that of the constitutional
county courts to include concurrent jurisdiction with the district courts in
civil cases with an amount in controversy between $500 and $100,000.” Id.
In Lorson, we recognized that section 26.043 deprives a “county court”
of jurisdiction over the eight types of suits listed therein. Id. However, we noted that the Texas Government
Code defines “county court” as a court created pursuant to Texas Constitution
article V, section 15, i.e., a constitutional county court, and statutory
county courts are created by the legislature pursuant to Texas Constitution
article V, section 1. Id. Thus, we concluded that the plain language of
section 26.043 does not apply to statutory county courts and held that section
26.043 did not restrict the trial court’s jurisdiction “because the trial court
[was] a statutory county court, not a constitutional county court.” Id.
at *4. We note that because the specific
grant of jurisdiction for statutory county courts in Brazoria County provides
for concurrent jurisdiction with the district court in “civil cases in which
the matter exceed[ed] $500 but [did] not exceed $100,000,” this Court, in Lorson, correctly concluded that section
25.0222(a)(1) of the Texas Government Code conferred jurisdiction to the
statutory county courts in Brazoria County to hear lawsuits involving the eight
types of cases listed in section 26.043.
See id. Thus, this Court’s statements and analysis
regarding section 26.043’s applicability to statutory county courts generally was
dicta, as the Court did not rely on it for the resolution of the case. See
Four Brothers Boat Works, Inc. v. Tesoro
Petroleum Cos., Inc., 217 S.W.3d 653, 662 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
Here, the parties dispute the
applicability of section 26.043 generally to statutory county courts. Accordingly, we must determine whether
section 26.043 generally limits the jurisdiction of statutory county courts as
well as constitutional county courts.
The general grant of jurisdiction
for statutory county courts provides that they have jurisdiction over all
causes and proceedings, civil and criminal, original and appellate, prescribed
by law for constitutional county courts.
Tex. Gov’t Code Ann. §
25.0003(a). Therefore, in order to
determine the extent of the grant of jurisdiction to statutory county courts we
must necessarily look at the jurisdiction granted to constitutional county
courts. Chapter 26 of the Texas
Government Code, entitled “County Courts,” provides constitutional county
courts concurrent jurisdiction with the district courts for suits with an
amount in controversy between $500 and $5,000.
Id. § 26.042(d).
However, this general grant of jurisdiction is limited by section
26.043, in which the legislature expressly provides that a county court does
not have jurisdiction over the eight types of suits listed. Id.
§ 26.043. Thus, the jurisdiction that a county court
can exercise concurrent with the district courts is limited. The legislature, as it did for constitutional
county courts, also provided statutory county courts with jurisdiction
concurrent with the district courts, providing that, “a statutory county court exercising civil jurisdiction concurrent
with the constitutional jurisdiction of the county court has concurrent
jurisdiction with the district court in” civil cases in which the matter in
controversy exceeds $500 but does not exceed $100,000. Id.
§ 25.0003(c)(1) (emphasis added).
In construing a statute, we give
effect to all words and, if possible, do not treat statutory language as mere
surplusage. Haas v. Ashford Hollow Cmty. Improvement Ass’n, Inc., 209 S.W.3d 875, 886 (Tex.
App.—Houston [14th Dist.] 2006, no pet.); see also Jones v. Fowler,
969 S.W.2d 429, 432 (Tex. 1998) (“[W]e must read [a] statute
as a whole and interpret it to give effect to every part.”). Accordingly,
to give effect to every pertinent part of the Texas Government Code, we must
read section 25.0003(c) in conjunction with the language limiting the
jurisdiction of a constitutional county court found in section 26.043. The concurrent jurisdiction of a statutory
county court with a district court is only applicable when the statutory county
court is exercising civil jurisdiction concurrent with the jurisdiction of a
constitutional county court. See Tex.
Gov’t Code Ann. §
25.0003(c). Generally, the statutory
county courts’ concurrent jurisdiction with district courts is based on the
jurisdiction of constitutional county courts, which is limited by section
26.043. Accordingly, the jurisdiction of
a statutory county court is also limited.
If a specific statutory provision
confers jurisdiction, the specific provision controls over the general limitation
of section 26.043. See Tex. Gov’t Code Ann.
§ 25.0001(a) (Vernon 2004). Here, we
note that the legislature has specifically provided certain statutory county
courts with jurisdiction over some of the eight types of suits listed in
section 26.043. For example, a suit to
recover damages for slander may be filed in a statutory county court in Harris
County. Id. § 25.1032(c)(2) (Vernon 2004); see also id. §25.2162(a)
(Vernon 2004) (providing county court at law of Starr County with
subject-matter jurisdiction over family law matters and “controversies
involving title to real property” concurrently with district court). Thus, the legislature has chosen to
specifically grant various statutory county courts with specific jurisdiction to
hear some of the types of suits listed in section 26.043. In 1991, the legislature amended section
25.0003(a) to increase the amount in controversy limits from $5,000 to
$100,000. See Acts 1991, 72nd Leg., ch. 746, §§ 2, 3, eff. Oct. 1, 1991. Notably, the legislature also provided for
specific grants of jurisdiction on certain statutory county courts to hear some
of the types of suits listed in 26.043. See, e.g., Tex. Gov’t Code Ann.
§§ 25.1032(c) (1)–(6),
25.2222(b) (Vernon 2004). The legislature
would not have needed to specifically grant jurisdiction if it had not intended
for the limitations of section 26.043 to apply to statutory county courts generally. We conclude that the legislature did not
intend to confer broader jurisdiction in its general grant of jurisdiction in
section 25.0003(c) because it provided more specific grants of jurisdiction to
specific statutory county courts, which, if included in the broader grant, are
duplicative of jurisdiction already conferred.
Thielemann asserts that Santana stands for the proposition that,
here, the statutory county court has jurisdiction over his suit. There, Santana argued that “because the trial
court, [a statutory county court,] has concurrent jurisdiction with
constitutional county courts and because constitutional county courts are not
empowered to hear defamation suits, the trial court lacked jurisdiction in his
suit for defamation.” See Santana, 2007 WL 2330714, at
*3. The Austin Court of Appeals
disagreed, concluding that nothing in section 26.043 refers to county courts at
law that possess civil jurisdiction concurrent with the district courts. Id. The specific grant of jurisdiction to the
Travis County statutory courts states that “[i]n addition to the jurisdiction
conferred generally by section 25.0003 and other law, a county court at law in
Travis County has concurrent jurisdiction in civil cases with the district
court.” Tex. Gov’t Code Ann. § 25.2292(a) (Vernon 2004). Accordingly, the court found that the
specific provision, applying only to Travis County, controls, and, thus, Travis
County statutory courts have concurrent jurisdiction in civil cases with the
district courts. Santana, 2007 WL 2330714, at *3.
However, the Austin Court of Appeal’s statement that section 26.043 does
not apply constitutes dicta because the court ultimately held that the Travis
County courts at law had jurisdiction over the claim due to the legislature’s specific
grant of jurisdiction concurrent with the district courts. Id.
Notably,
the Austin Court of Appeals, in a subsequent published opinion, diverged from
its previous discussion of section 26.043, explaining:
County Court at
Law No. 2 of Tom Green County is a statutory county court. See Tex. Gov’t Code Ann. § 25.2281 (West 2004). It does not have jurisdiction in “a suit for
the recovery of land.” Id. §
26.043(8)
(West 2004); see also id. § 25.0003(a) (West Supp. 2008) (providing that
statutory county courts have the same jurisdiction as prescribed by law for
constitutional county courts). Compare
id. § 25.2162(a) (West 2004) (granting a county court at law in Starr
County jurisdiction over controversies involving title to real property), with
id. § 25.2282 (West 2004) (not granting such jurisdiction to a county court
at law in Tom Green County). Thus, if
this lawsuit constitutes a suit for the recovery of land, the county court did
not have subject-matter jurisdiction to adjudicate the claims.
Merit Mgmt.
Partners I, L.P. v. Noelke, 266 S.W.3d 637, 643 (Tex. App.—Austin 2008,
no pet.).
Similarly, the Waco Court of
Appeals has concluded that, “[u]nless otherwise provided, a statutory county
court has the subject-matter jurisdiction prescribed by law for constitutional
county courts.” Spakes v. Weber, No. 10-08-00313-CV, 2010 WL 139955, at *2 (Tex.
App.—Waco Jan. 13, 2010, pet. denied) (mem. op.). The court noted that a constitutional county
court does not have subject-matter jurisdiction to decide a suit for the
recovery of land. Id. (citing Tex. Gov’t Code
Ann. § 26.043(8) (Vernon 2004)).
The court reasoned that because “statutory county courts of Johnson
County in particular have the subject-matter jurisdiction prescribed for
constitutional county courts and concurrent jurisdiction with district courts
‘in family law cases and proceedings,’” statutory county courts of Johnson
County “do not have subject matter jurisdiction” in a suit for recovery of
land. Id. (citing Noelke, 266
S.W.3d at 643.). In the case before us,
the specific grant of jurisdiction to Washington County statutory courts is
identical to that granted to the Johnson County statutory courts discussed in Spakes.
Compare Tex. Gov’t Code Ann. § 25.1281 (Vernon
2004), with id. § 25.2412.
The Beaumont Court of Appeals has
also concluded that a statutory county court does not have jurisdiction over
the eight types of suits listed in 26.043, notwithstanding the general grant of
jurisdiction contained in section 25.0003(c).
Loville v. Loville, 944 S.W.2d
818, 819 (Tex. App.—Beaumont 1997, writ denied). In Loville,
the court held that a statutory county court of Jefferson County lacked
jurisdiction over the Lovilles’ suit seeking recovery of land because section
26.043 limited the jurisdiction of the statutory county court to that of the
constitutional county court. Id.
Here, as in Loville, the specific grant of jurisdiction to the statutory county
courts in Washington County does not contain a specific provision granting them
jurisdiction concurrent with the district courts. See Tex. Gov’t Code Ann. § 25.2412. Rather, the specific grant of jurisdiction
provides for jurisdiction concurrent with district courts in regard to family
law cases and proceedings. Id. § 25.2412(a). The specific grant of
jurisdiction states only that “a county court at law in Washington County has
concurrent jurisdiction with the district court in family law cases and
proceedings.” Id. Unlike the specific
grant of jurisdiction in Lorson and Santana, the specific grant of
jurisdiction for the statutory county courts in Washington County does not provide
them with jurisdiction concurrent with the district courts in all matters. Accordingly, we hold that the county court at
law lacked subject-matter jurisdiction over Thielemann’s defamation
claims.
We overrule Thielemann’s first
issue.
Sanctions
In
his third issue, Thielemann argues that the county court at law erred in
assessing sanctions against him for filing his suit in the Washington County
court at law because there is no evidence that he violated Texas Rule of Civil
Procedure 13. He asserts that “no one
should be subject to sanctions and/or the threat of sanction for correctly
stating the law.”
We review a trial
court’s decision to impose sanctions under an abuse of discretion
standard. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner “without reference to guiding rules
and principles.” See Garcia v. Martinez, 988 S.W.2d 219, 222
(Tex. 1999). When reviewing matters
committed to the trial court’s discretion, we may not substitute our own
judgment for that of the trial court. Bowie Mem’l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002).
A trial court does not abuse its discretion merely because it decides a
discretionary matter differently than an appellate court would in a similar
circumstance. Gray v. CHCA
Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
A trial court may impose sanctions
if a pleading is groundless and brought in bad faith or for the purpose of
harassment. Tex. R. Civ. P. 13. A pleading
is groundless if it has “no basis in law or fact” and is “not warranted by good
faith argument for the extension, modification, or reversal of existing
law.” Id. Courts must presume that a lawsuit has
been filed in good faith, and a party moving for sanctions must overcome this
presumption. Daves v. Daniels, 319 S.W.3d 938, 940 (Tex. App.—Austin 2010, pet.
denied); Appleton v. Appleton,
76 S.W.3d 78, 86 (Tex. App.—Houston [14th Dist.]
2002, no pet.). The
party moving for sanctions must prove the pleading party’s subjective state of
mind. See Matty v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.—Houston
[14th Dist.] 2002, no pet.). In
determining whether to award sanctions, a trial court must examine the facts
and circumstances in existence at the time that a pleading was filed to
determine whether sanctions are proper. Id. Bad faith does not exist when a party merely
exercises bad judgment or is negligent; rather bad faith is the conscious doing
of a wrong for dishonest, discriminatory, or malicious purposes. Elkins v.
Stotts-Brown, 103 S.W.3d 664, 669 (Tex. App.—Dallas 2003, no pet.). To “harass” means to
annoy, alarm, and verbally abuse another person. Id.
The county
court at law’s order imposed sanctions on Thielemann pursuant to rule 13,
finding that “good cause is shown for the imposition of these monetary
sanctions for reason that this suit was groundless having been filed in a Court
without jurisdiction and without reasonable inquiry into the jurisdictional
limits of this Court.”
Kethan
maintains that Thielemann’s defamation claim is groundless and brought in bad
faith or to harass because the county court at law concluded that it was
without jurisdiction to hear such a claim.
At the sanctions hearing, Kethan’s attorney testified to the costs of
defending this suit, and he referenced other suits that Thielemann had filed in
a court without jurisdiction. Kethan’s
attorney argued that the suit is groundless because the court lacked
jurisdiction and that “an hour of research would have determined” that the
statutory court was without jurisdiction.
He argued that Thielemann was subject to sanctions because the “function”
of rule 13 is “not only to compensate the other party but to have a punitive
effect,” this was not Thielemann’s first time to file a suit in a court without
jurisdiction, and Thielemann would continue to file suits in courts without
jurisdiction “until someone stands up and slaps his hand.” Thielemann, however, stated that he “spent a
lot of time looking” at the law and “trying to find [out] what is a constitutional
court and what is a statutory court.”
Sanctions should only
be assessed “in those egregious situations where the worst of the bar uses our
honored system for ill motive without regard to reason and the guiding
principles of the law.” Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 951 (Tex. App.—Houston
[1st Dist.] 1993, no writ). A trial
court may not base sanctions solely on the legal merit of a pleading or motion.
See Elkins, 103 S.W.3d at 668. Instead,
the trial court must examine the facts available to the litigant and the
circumstances existing at the time the pleading was filed. Id. Although we have ultimately concluded that this
defamation suit was filed in a court without jurisdiction, Thielemann argued
and asserted in his response to the motion for sanctions that Santana and Lorson supported his filing of the suit in a statutory county
court. We recognize that Kethan’s
counsel did argue to the county court at law that the suit was groundless and
Thielemann had filed suits in other courts without jurisdiction. However, motions and arguments of
counsel do not constitute evidence in regard to rule 13. McCain
v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no
writ). More importantly, here, the
record and briefing shows that appellate law exists arguably supporting
Thielemann’s filing of a defamation suit in the statutory county court. Accordingly, we hold that the county court at
law erred in assessing monetary sanctions against Thielemann for filing the
suit in the court in the Washington County court at law.
We sustain Thielemann’s third
issue.[5]
Conclusion
We
reverse the portion of the county court at law’s November 18, 2010 order
awarding Kethan sanctions and its December 21, 2010 order awarding additional
sanctions. We affirm the remaining
portion of the county court at law’s November 18, 2010 order dismissing
Thielemann’s defamation suit for want of jurisdiction.
Terry
Jennings
Justice
Panel
consists of Justices Jennings, Bland, and Massengale.
[1] See
Tex. Gov’t Code Ann. § 26.043 (Vernon 2004).
[2] See
Tex. R. Civ. P. 13.
[3] See
Tex. Gov’t Code Ann. § 26.043.
[4] As discussed below, there are several
cases in which courts of appeals have simply stated that a statutory county
court does not have jurisdiction over the eight type of suits listed in section
26.043 absent a specific grant of jurisdiction.
See Spakes v. Weber,
No. 10-08-00313-CV, 2010 WL 139955, at *2 (Tex. App.—Waco Jan. 13, 2010, pet.
denied) (mem. op.); Matherne
v. Carre, 7 S.W.3d 903, 906
(Tex. App.—Beaumont 1999, pet. denied); Loville v. Loville, 944 S.W.2d 818, 819 (Tex. App.—Beaumont
1997, writ denied). Furthermore, it is
noted in Dorsaneo’s Texas Litigation Guide that because Government Code section
25.003 “embraces the jurisdiction prescribed by law for county courts, it
appears that statutory county courts do not have jurisdiction in those civil
matters set forth in section 26.043 unless a specific statute provides
otherwise.” 1 Dorsaneo, Texas Litigation
Guide, Pretrial Practice,
2.01(3)(d).
[5] Having overruled Thielemann’s first
issue and sustained his third issue, we need not address his second issue.
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 11, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARTY W. RHODES,
Petitioner - Appellant,
v. No. 17-8080
(D.C. No. 2:17-CV-00092-SWS)
WYOMING DEPARTMENT OF (D. Wyoming)
CORRECTIONS; MICHAEL PACHECO,
Warden, Wyoming State Penitentiary;
WYOMING ATTORNEY GENERAL,
Respondents - Appellees.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
_________________________________
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
_________________________________
Wyoming state prisoner Marty W. Rhodes, appearing pro se,1 seeks a
certificate of appealability (“COA”) to challenge the dismissal of his petition for writ
of habeas corpus. We deny a COA and dismiss this matter.
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule
32.1.
1
Because Mr. Walker is pro se, “we liberally construe his filings, but we will
not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
I. BACKGROUND
Mr. Rhodes is serving consecutive sentences for child abuse and third-degree
sexual abuse of a minor—up to twenty years, in total. See Rhodes v. State, 348 P.3d
404, 407 (Wyo. 2015). His convictions and sentences were affirmed by the Wyoming
Supreme Court on April 27, 2015. Id. at 415. On July 8, 2015, Mr. Rhodes filed a
Petition for Writ of Error Coram Nobis with the Wyoming Supreme Court, which
was denied on August 4, 2015. Nearly a year passed. On July 21, 2016, Mr. Rhodes
filed a document entitled “Petition for Post Conviction Relief with Request for
Evidentiary Hearing” in a Wyoming trial court. That court dismissed the petition in
January 2017. On February 9, 2017, Mr. Rhodes petitioned the Wyoming Supreme
Court a second time, this time by a Petition for Writ of Certiorari. Again, the
Wyoming Supreme Court denied relief. Its second and final order in Mr. Rhodes’s
case was entered on February 28, 2017.
Finding no help in Wyoming’s courts, Mr. Rhodes turned to the federal
system. On May 31, 2017, he filed a petition under 28 U.S.C. § 2254 for a writ of
habeas corpus by a person in state custody. Mr. Rhodes was again unsuccessful. The
federal district court dismissed his petition, finding it time-barred under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA:
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
2
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). However, “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.” Id. § 2244(d)(2).
Applying § 2244(d), the district court concluded that Mr. Rhodes’s one-year
window to seek federal habeas relief commenced on August 4, 2015, when the
Wyoming Supreme Court denied his Petition for Writ of Error Coram Nobis. Three-
hundred and fifty-two days later, on July 21, 2016, Mr. Rhodes filed his request for
post-conviction relief with the state trial court. That filing, the federal district court
reasoned, tolled Mr. Rhodes’s limitations period with thirteen days to go. See
§ 2244(d)(2). The suspension of AEDPA’s limitations period continued during the
pendency of Mr. Rhodes’s appeal of the state trial court’s order to the Wyoming
Supreme Court. Id. But the limitations period restarted when, on February 28, 2017,
the Wyoming Supreme Court denied Mr. Rhodes relief for the second and final time.
Thus, according to the district court’s calculations, Mr. Rhodes needed to file his
3
federal habeas petition within the next thirteen days—that is, on or before March 13,
2017. Because Mr. Rhodes’s petition was not filed until May of 2017, the district
court concluded it was time-barred pursuant to § 2244(d)(1)(A) and (d)(2).
Next, the district court concluded that §§ 2244(d)(1)(B)–(D) did not save Mr.
Rhodes’s petition. As to § 2244(d)(1)(B), it acknowledged Mr. Rhodes’s argument
that he was “blocked” from getting the entire record of his trial until after the one-
year timeframe had expired, but it concluded Mr. Rhodes identified no impediment
created by state action in violation of the Constitution or laws of the United States
that could extend the accrual date. The district court also held that Mr. Rhodes failed
to indicate any possible prejudice he may have suffered by not having the trial
transcript sooner. As to § 2244(d)(1)(C), the district court held it inapplicable
because Mr. Rhodes had not cited any newly recognized, and retroactively applied,
constitutional right. As to § 2244(d)(1)(D), the district court again considered Mr.
Rhodes’s allegation that Wyoming delayed in providing him a transcript of the trial
court proceedings. It concluded that such a delay is “not the type of factual predicate
necessary to justify application” of § 2244(d)(1)(D) and, besides, the “factual” basis
for Mr. Rhodes’s asserted grounds for habeas relief, i.e., ineffective assistance of
counsel, prosecutorial misconduct, and judicial misconduct, was clearly known to
him long before he physically received the trial court hearing transcript. Finally, the
district court held that Mr. Rhodes has not supported any actual innocence exception.
See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
4
Having found no legal or factual basis to support tolling of AEDPA’s
limitations period, the district court held that Mr. Rhodes’s petition is time-barred
and must be dismissed. The district court further declined to issue a COA, based on
its belief that no jurist of reason would find it debatable that Mr. Rhodes’s petition is
time-barred. The district court entered its judgment on September 26, 2017; Mr.
Rhodes filed a timely notice of appeal on October 16, 2017. Mr. Rhodes’s application
for a COA is now before us.
II. ANALYSIS
On appeal, Mr. Rhodes has filed a twenty-six page combined opening brief and
application for certificate of appealability. He expounds eight claims of ineffective
assistance of trial counsel, nine claims of ineffective assistance of appellate counsel
on direct appeal, three claims of prosecutorial misconduct, and four claims of judicial
misconduct. But there is nary a word addressing the reasons for dismissal actually
given by the district court.
“A state prisoner needs a COA to appeal a denial of federal habeas relief.”
Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015). To obtain the certificate,
Mr. Rhodes must make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). And where, as here, the district court disposed of a habeas
action as time-barred, a petitioner must also show “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); Ring v. Lightle, 655 F. App’x 657, 658 (10th
Cir. 2016). Upon careful review of the procedural history, we agree with the district
5
court’s conclusion that Mr. Rhodes’s petition is time-barred. Indeed, Mr. Rhodes has
not even attempted to address whether jurists of reason would find it debatable
whether the district court was correct in that procedural ruling. He is therefore not
entitled to a COA. See Davis, 798 F.3d at 1319 (“To demonstrate an entitlement to a
COA, the prisoner must show that ‘reasonable jurists could debate whether . . . the
issues presented were adequate to deserve encouragement to proceed further.’”
(quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003))).
III. CONCLUSION
For the foregoing reasons, we DENY a COA and DISMISS this appeal.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
6
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In the United States Court of Federal Claims
No. 13-942C
(Filed: July 18, 2017)
NOT FOR PUBLICATION
**********************
DAVIDSON C o p yr i g h t i nf ring e m e n t ;
Copyrightability; Fair use;
Plaintiff, Architectural works; Pictorial
representations of architectural
v. works exemption; 17 U.S.C. §
120(a); Pictorial, graphical, and
THE UNITED STATES, sculptural works.
Defendant,
**********************
ORDER
This is an action for copyright infringement. Plaintiff claims a
copyright in a large replica of the Statue of Liberty located on the grounds of
the New York, New York Hotel & Casino in Las Vegas. It is undisputed that
the United States Postal Service used a photograph showing the head of
plaintiff’s statue on one of its stamps, believing it to have been a picture of the
original. Pending are motions for summary judgment by plaintiff and
defendant. Plaintiff’s motion seeks partial judgment as to liability.
Defendant’s motion seeks summary judgment of non-infringement based on
a comprehensive legal defense—photographic copying of a public
architectural work does not constitute copyright infringement. See 17 U.S.C.
§ 120 (2012). Both motions are fully briefed and oral argument was held on
June 7, 2017. As we ruled at the close of argument, both motions are denied
and the matter remains set for trial on both liability and damages.
It is undisputed that plaintiff fabricated a replica of the Statue of
Liberty. It was constructed and installed on the grounds of the New York New
York Hotel & Casino in Las Vegas in 1996. He applied for and obtained a
copyright on the replica in 2013, and thus he is not entitled to a presumption
of validity. In his motion, plaintiff seeks a ruling that his replica statue is an
original sculptural work entitled to copyright protection and that defendant
infringed that copyright. Defendant contends, and we agree, that disputed
issues of fact remain which preclude summary judgment in plaintiff’s favor.
There is no question that plaintiff was invoking the Statue of Liberty in his
replica, but he argues that his intent was not merely to copy and that the replica
is unique. He contends that the face, which is the only aspect copied in the
stamp at issue, was intentionally not a perfect copy of the original. Defendant
contends that the differences, if any, are too subtle to warrant protection as an
original work. Questions of fact arise, such as the differences between the
original and the replica, whether those differences relate to the copied
elements, plaintiff’s intent in the fabrication process, the amount of discretion
afforded plaintiff in the design and the choice of materials, and whether any
differences were dictated by necessity rather than artistic choice.
Even if plaintiff were to establish that the Postal Service copied
protected elements of the replica, defendant offers the defense of “fair use,”
which typically raises fact questions. This defense is offered in 17 U.S.C. §
107:
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work . . . is not an infringement of
copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall
include--(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit
educational purposes; (2) the nature of the copyrighted work;(3)
the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and (4) the effect of the use
upon the potential market for or value of the copyrighted work.
No generally applicable definition of fair use is possible, and each case must
be decided on its own facts. Campbell v. Acuff-Rose Music, Inc., 510 U.S.
569, 577-78 (1994).
Plaintiff contends that the first factor plainly weighs in his favor; the
Postal Service sold millions of stamps using the image in question. Defendant
argues that the second factor weighs against plaintiff because the replica
clearly attempts to mimic the original Statue of Liberty, and that the fourth
factor plainly weighs in its favor—sale of the stamps would seem to have a
minimal potential for reducing plaintiff’s ability to make further commercial
2
use of the replica. Melding and weighing these three factors, along with the
third—clearly a factual inquiry—makes summary judgment for either party
inappropriate.
We cannot, therefore, grant plaintiff’s motion for summary judgment
as to liability. Nor, however, can we rule for defendant on its separate motion
for judgment as to liability.
The government’s defense is that the accused infringing use was
protected by the exception set out in Section 120:
(a) Pictorial representations permitted.–The copyright in an
architectural work that has been constructed does not include the
right to prevent the making, distributing, or public display of
pictures . . . of the work, if the building in which the work is
embodied is located in or ordinarily visible from a public place.
17 U.S.C. § 120(a). Defendant contends that the sculpture is part of a much
larger, unitary architectural work, namely the New York, New York Hotel &
Casino. It is undisputed that the hotel consists of several structures
representing different New York landmarks that are connected to form a
superstructure depicting the New York City skyline. The sculpture of the
Statue of Liberty, although not directly connected to the buildings, is
physically located as part of the same development on the same plot of land,
was built at the same time, and was intentionally included to enhance the New
York theme.1 By throwing a large net over all the elements of the casino
complex, including the replica, defendant creates a single “architectural work,”
any element of which can then be freely photographed without running afoul
of copyright protections because of Section 120.
1
Defendant repeatedly points to the New York City theme of the hotel
and the fact that its experts’ survey work shows that the Las Vegas Statue of
Liberty replica is, in the public’s mind, quintessentially representative of New
York City. None of this speaks to the question of whether the Las Vegas
version of the statue is an architectural work, however. The statue matches the
theme of the hotel and is cleverly located to enhances the visual effect of the
hotel’s design, but it is not part of the building.
3
The addition of Section 120 was intended to extend copyright
protections, however, not truncate them. Previously, architectural works had
little protection because they were considered utilitarian and not subject to
copyright protection. See Leischester v. Warner Bros., 232 F.3d 1212,1216
(9th Cir. 2000). That changed in 1990 when congress passed the
Architectural Works Copyright Protection Act (“AWCPA”), which added
specific protection for architectural works but with the limiting proviso, on
which the government relies, that photographs of public architectural works
are exempted from protection. Pub. L. No. 101-650, §§ 702-703, 104 Stat.
5133 (1990). The AWCPA is silent as to its effect on any other section of the
Copyright Act.
The statutory definition of “architectural work” is “the design of a
building as embodied in any tangible medium of expression . . . . The work
includes the overall form as well as the arrangement and composition of spaces
and elements in the design, but does not include individual standard features.”
17 U.S.C. § 101. The term “building” is defined in the applicable regulations
as a “humanly habitable structure.” 37 C.F.R. § 202.11(b)(2) (2016). It is
undisputed that the statue is not, independently, a building within this
regulatory definition. The Las Vegas Lady Liberty is a free standing work of
sculpture; it is not part of the facade of the hotel’s superstructure nor is it
connected to the building in any physical sense. It also does not serve any
functional purpose with regard to the building.
Defendant makes much of the fact that the definition of an architectural
work includes the arrangement or composition of spaces or elements that
might otherwise not be individually protected under the Copyright Act. In
other words, the good news defendant offers plaintiff is that the protection of
Section 120 includes the replica because it was intentionally sited as part of the
casino “building.” The bad news is that the protection disappears because now
photographs can be taken of the face of the statue with no legal consequences.
Even if Congress had in mind protecting the choices made in positioning of the
replica as part of the casino, the government’s argument makes hash of that
protection by then permitting a photograph of the face of the replica, a feature
which has nothing to do with positioning. In sum, deeming the statue to be
one and the same as the buildings that constitute the casino itself is
inconsistent with a common sense reading of the relevant statutory and
regulatory provisions, and inconsistent as well with Congress’ purpose in
adopting the 1990 changes to protect architectural works, but not reduce
protections afforded to other categories of protected works.
4
The government relies heavily on the Ninth Circuit’s decision in
Leichester v. Warner Brothers, in which the court held that a streetwall
connected to a large office building in Los Angeles was properly considered
an element of the design of that building because it served artistically to extend
the building visually to the street and because it served functionally to guide
foot traffic into the building’s courtyard. 232 F.3d at 1218. The present facts
are distinguishable, however. The Las Vegas statue is free standing and serves
no functional purpose for the building.
The government’s argument assumes that the only relevant protection
for the replica can be as an architectural work. It completely ignores, however,
the independent protection for sculptural works that pre-existed the addition
of Section 120 in 1990. See 17 U.S.C. § 102(a)(5) (listing “sculptural works”
as one of the categories of original “works of authorship” protected by the
Copyright Act). The premise behind the government’s defense is thus wrong.
Even if the replica were viewed by the public as a design element of the
casino, as defendant’s experts contend, that does not strip plaintiff’s work of
its protection as a sculpture.
Accordingly, the parties’ motions for summary judgment on liability are
denied. Trial on liability and damages remains set to commence on September
11, 2017, in Washington, DC.
s/Eric G. Bruggink
ERIC G. BRUGGINK
Judge
5
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332 F.Supp. 65 (1971)
Verner S. PURNELL, Executor of the Estate of Anna S. PURNELL, Deceased,
v.
UNITED STATES of America.
Civ. No. 69-246.
United States District Court, W. D. Pennsylvania.
September 23, 1971.
*66 Dougherty, Larrimer, Lee & Hickton, Pittsburgh, Pa., for plaintiff.
Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., for defendant.
OPINION and ORDER
KNOX, District Judge.
This suit for refund of federal estate taxes involves one of the more abstruse and obscure branches of the Pennsylvania law of decedent's estates. The rule formerly was that where under a will, personal property was awarded directly to a life tenant for life with remainder over, the life tenant was treated as a debtor to the remainder man in the amount of the personal property received by the life tenant. The relationship between life tenant and remainder man was that of debtor and creditor, not trustee and beneficiary. Fortunately, the number of cases involving this question will drastically diminish as time goes on because under the Pennsylvania Estates Act of 1947, 20 Purdon's Pa. Statutes, 301.13, effective January 1, 1948, and applicable to dispositions occurring on and after that date, it is provided that a life tenant in such a situation "shall be deemed to be a trustee of such property, and not a debtor to the remainder man * * *".
We are, however, here concerned with the will of Ansby V. Purnell who died April 21, 1941. In his will (p. 106(a) of record in Supreme Court of Pennsylvania which was offered in evidence in this case, Exhibit 12), the decedent, after mentioning certain pieces of real estate, provided:
"Second: All the rest, residue and remainder of my estate, real, personal and mixed, I give devise and bequeath to my wife, Anna S. Purnell, for and during her natural life with remainder upon her death to my son, Verner S. Purnell.
"Third: I direct that my personal estate be distributed to my wife, Anna S. Purnell, as life tenant without requiring her to give bond therefore."
This language in the will has clearly and conclusively been construed by the Supreme Court of Pennsylvania to set up a debtor-creditor relationship between Anna S. Purnell and her son, Verner S. Purnell, plaintiff herein, to the extent of property received by Mrs. Purnell from the estate of her husband. See Purnell's Estate, 424 Pa. 263, 226 A.2d 488 (1967).
Anna S. Purnell, the life tenant, died February 5, 1962, and the amount in *67 which she was indebted to the remainder man is clearly to be allowed as a deduction in the federal estate tax return in her estate as filed by the plaintiff herein her executor.[1] The question, however, with which we are confronted is "What is the amount of this deduction"? The determination of this question depends upon whether you adopt the figures evaluating the personalty received by Mrs. Purnell as of the date of Mr. Purnell's death on April 12, 1941, or the value of these assets at the time of distribution on May 8, 1943. It is claimed that the securities constituting the bulk of the property received by the life tenant had appreciated in value during the intervening two years and the estate naturally claims that the amount to be allowed as a deduction is to be calculated as of the date of distribution. The government, however, contends that date of death values control. For reasons herein set forth, we hold that date of distribution values control but in this case the estate is bound by the values set forth in the 1943 distribution decree.
An examination of the Pennsylvania cases dealing with this debtor-creditor relationship shows that the life tenant is responsible to the remainder man for the amount received in distribution from the estate of the original testator. This amount is not subject to diminution for expenses of settlement of the estate of the life tenant nor for compensation to her for care of the fund and is not concerned with increase or decrease in values of securities or gains or losses from sales thereof. This can be distilled from the following cases: Reiff's Appeal, 60 Pa. 361; 124 Pa. 145, 16 A. 636 (1889); In re Letterle's Estate, 248 Pa. 95, 93 A. 935 (1915); In re Weir's Estate, 251 Pa. 499, 96 A. 1086 (1916); In re Kirkpatrick's Estate, 284 Pa. 583, 131 A. 361 (1925); In re Gillett's Estate, 130 Pa.Super. 309, 197 A. 517 (1938); In re Powell's Estate, 340 Pa. 404, 17 A.2d 391 (1941).
For instance, in Weir's Estate, supra, it was held "the specific property never becomes the subject of credit in an accounting". In Letterle's Estate, supra, it was pointed out that the assets handed over to the life tenant in the decree of distribution were valued at $12,010.58 and this was what she was responsible for regardless of losses and gains in sales of securities.
In Kirkpatrick's Estate, supra, the decree distributing the estate to the life tenant erroneously labeled it a trust but the Supreme Court treated this as a gratuitous statement in the decree and held that what the life tenant is liable for is the amount received by her.
Again, in Gillett's Estate, supra, it was held that the life tenant was responsible for the value of the estate as received by her. "The net amount and value of the property which she took possession of * * *."
Again, in Powell's Estate, supra, one of the leading cases in recent years in this field, there was a life estate with power to consume. The inventory showed the original value of $74,167.50 including certain securities which turned out to be the cause of the dispute. The second and final account filed five years after death of the original decedent showed the balance to be $36,391.28 which was awarded to the life tenant subject to her power to consume. It was held that the life tenant "was entitled to take the balance as shown by the account and assume a debtor creditor relation to the remaindermen for that sum less any part she should consume". (emphasis added). The court said "She is responsible to them only for the value of the estate at the date of distribution thereof".
*68 In the last of this line of cases being the very estate which is at issue in this case, we find that the District Director of Internal Revenue was made a party to a declaratory judgment proceeding, appeared by the United States Attorneys Office and filed answer thereto. The government also appeared and argued the case on appeal in the Supreme Court. It appears from the opinion by Chief Justice Bell that on April 23, 1943, the auditing judge entered a decree of distribution which directed Ansby's executors to distribute to "Anna S. Purnell life tenant" the stocks and bonds contained in his residuary estate which were valued at $97,785.50.
The court indicates that it even considered the very question that was before us because it is stated "exactly what property Anna took at her husband's death and in what capacity is important, because between 1941 and 1962, Ansby's property had very greatly enhanced in value as a result of stock dividends, stock splits and the increase in the market value of the stocks and securities which Anna received from her husband's estate. In the Supreme Court opinion, it appears that the government was claiming a tax on the increase in value but the court held that she was liable to "the remainderman for the value of the property she actually received at the date of distribution". The court further pointed out "she also elected to take in kind the stocks and bonds which were listed at their value at the time of distribution to her." (Emphasis supplied.)
Many of these cases discuss the Act of May 17, 1871, P.L. 269 (see also the Act of February 28, 1834, P.L. 83, Sec. 49) later supplanted by similar sections in the later Acts of Assembly dealing with decedent's estates whereby the life tenant could be required to give bond in such a situation for the amount of assets received by her. We find in many of these cases that the original will excused her from giving bond or that no bond was required and this was acquiesced in by the remainder man, amounting to a waiver, but it was held in Powell's Estate, supra, that the fact that she failed to give bond at the time of the decree of distribution was immaterial. It will be noted that in Ansby V. Purnell's will the giving of bond was excused. If, however, Anna had been required to give bond, it is obvious that the bond which she would have had to have given was in the amount of the stocks and bonds received by her from Ansby's Estate, to wit, in the amount of $97,785.50 as determined by the decree.
In the instant case, it is obvious that both the government and the estate are bound by the adjudication of the Supreme Court of Pennsylvania, since this was an adversary proceeding in which the government participated. Under Internal Revenue Code, Section 2053(a), and regulations thereunder, claims valid under State law are deductible in determining the net estate. If the state court passes on the validity of a claim, it must be allowed. While there is some doubt in the cases as to the effect of allowance of a claim pro forma without any adversary proceedings, these cases are obviously inapplicable here except as to the later account hereinafter mentioned. See First-Mechanics National Bank of Trenton v. Commissioner of Internal Revenue, 117 F.2d 127 (3d Cir. 1940); Beecher v. United States, 280 F.2d 202 (3d Cir. 1960); Babcock's Estate v. Commissioner of Internal Revenue, 234 F.2d 837 (3d Cir. 1956). It is indicated in these cases that even if the validity of the claim has not been adjudicated by the state court it may be determined on the merits by the Federal court.
The problem in this case is caused by ignoring the plain wording of the original decree of distribution in the Estate of Ansby V. Purnell which was entered by the Orphan's Court of Allegheny County on April 28, 1943. (p. 94a Ex. 12) This order of distribution plainly states:
"SCHEDULE OF DISTRIBUTION:
Balance for distribution
*69 To: Anna S. Purnell, life tenent (sic) $97,785.50."
This figure is also in accordance with the 1965 first and final account of Verner S. Purnell, "surviving trustee under will" which shows as follows: (96a)
4-28-43 Principal received
from Estate of
Ansby V. Purnell.. $98,395.50
Additional Assets
11-13-47 Proceeds sale of
real estate 914 Columbus
Avenue,
Pittsburgh, Pennsylvania,
to F. G.
Woodward, D.B.V.
2972-508 4,500.00
___________
$102,895.50
(The discrepancy between the figure of $98,395.50 and $97,785.50 distributed to Anna S. Purnell life tenant is accounted for by the first two items in the schedule of distribution page 94a totalling $610 which reduces the balance to $97,785.50.)
The record further shows that on April 13, 1964, Verner S. Purnell (also plaintiff in the instant case) filed a petition for declaratory judgment against John H. Bingler, District Director of Internal Revenue and the United States. See page 2a of record. The United States filed an answer to this petition and was permitted to intervene and become a party to these proceedings, on May 25, 1964 (p. 9a).
Verner S. Purnell did file exceptions to the decree denying the prayer of the petition for declaratory judgment and the same were dismissed by decree of the court en banc on March 7, 1966 (122a).
Verner S. Purnell then appealed to the Supreme Court as previously indicated and that court affirmed the order of the lower court on January 4, 1967. See Estate of Purnell, 424 Pa. 263, 226 A.2d 488 (1967). It is significant that the Supreme Court also emphasized that the value at which Anna S. Purnell life tenant took the residuary estate was $97,785.50.[2]
Verner S. Purnell, plaintiff herein has sought to avoid the impact of these determinations by the Orphan's Court and the Supreme Court by filing a subsequent account in the Estate of Anna S. Purnell in the Orphan's Court Division of the Court of Common Pleas of Allegheny County, Pennsylvania, which account was confirmed January 16, 1969. In this he sought to step up the figures from the 1943 account which had been confirmed absolutely by the Orphan's Court on April 28, 1943, even though no exceptions had been filed and this decree had long ago become final and was probably not even subject to review under Pennsylvania law. These same figures were used in the 1962 account (95a). It will be noted that Mr. Purnell was the one who filed this account originally and was therefore responsible for the figures therein contained.
The account itself is Exhibit 5 in the instant proceedings and the decree is found in Exhibit 8. These exhibits were received over the government's objection as being irrelevant and immaterial. In view of the disposition we make of this case it becomes unnecessary to make a final ruling on their admissibility except to say that we have considered them at length and determine that they do not affect the outcome of this case.
In the account on page 3, Mr. Purnell reported the existence of a debt due by *70 decedent and stated that the amount of the debt was $118,372.13.[3]
Referring to Exhibit A attached to the account, we find that the figure of $118,372.13 was arrived at by recalculating the values of the securities distributed to the life tenant as of May 8, 1943, and also adding in $4,500 of proceeds of sale of real estate heretofore referred to.
While the record does show that notice of the audit of this account was given to the United States Attorney he did not appear and file any objections either to the account or the decree of distribution entered on January 16, 1969 (Exhibit 8). We hold that the plaintiff could not by this method upset valuation figures plainly set forth in the decree of April 28, 1943, which had long since become final. The United States Attorney had been properly served with notice of declaratory judgment proceedings, had appeared therein and successfully sustained the position of the government in the Pennsylvania Supreme Court which clearly stated that the amount of debt was $97,785.50. Under these circumstances the United States was not required to take any further notice of an accounting proceedings and could not anticipate that any such order would affect the previous final orders of the Orphan's Court and the Supreme Court. We consequently hold that the subsequent accounting proceedings are not of an adversary nature and not binding upon the government.
We, therefore, determine that the amount of deduction to be allowed in the federal estate tax return in the Estate of Anna S. Purnell deceased is $97,785.50 plus $4,500 from sale of real estate as to which Mrs. Purnell was also a life tenant. This real estate having been sold subsequent to the decree of distribution in 1943 the proceeds would likewise be held by her as life tenant as an additional debt due the remainder man. The government does not contend to the contrary and page 3 of the audit statement of this return (Exhibit 1 in this case) plainly shows that the government allowed the proceeds of the sale of this real estate as an additional deduction but erroneously employed the figure of $5,000 instead of the correct figure of $4,500 contained in the account filed after Mrs. Purnell's death. See page 96a of the Supreme Court record.
Adding this $4,500 to the $97,785.50 gives a total deduction of $102,285.50 which we allow in this refund proceeding instead of the figure allowed by the government in the amount of $93,452.59. The government arrived at this figure by adding $5,000 erroneously to the $97,785.50 and then deducting $9,332.91 which it claimed Mrs. Purnell had advanced to her husband's estate. Inasmuch as this was not mentioned in the decree of distribution, there is no basis for reducing the plain amount of $97,785.50 awarded to her.
Two other matters deserve consideration. First, the adequacy of the claim for refund. The government claims that the claim for refund is insufficient to raise the question of the amount of deduction to be allowed for the debt owing by Anna S. Purnell to Verner S. Purnell. It is true that the claim for refund (Exhibit 2) is somewhat vague.[4]
We recognize however the rule that claims for refunds are not governed by the niceties of common law pleadings. See Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 53 S.Ct. 454, 77 L. Ed. 1011 (1933). See also Crook v. United States, 135 F.Supp. 242 (W.D.Pa. 1955). Generally, the question is whether the commissioner's attention has been focused upon the merits of the case. Angelus Milling Co. v. Commissioner of *71 Internal Revenue, 325 U.S. 293, 65 S.Ct. 1162, 89 L.Ed. 1619.
There is no question here that the government knew exactly what the claimant was talking about. The matter was under litigation for approximately three years in the Pennsylvania courts during which time the government actively participated in the proceedings. The audit report on the refund claim dated May 10, 1967 (Exhibit 1) shows that the Internal Revenue Service clearly understood that the dispute was over the amount of assets received by Mrs. Purnell from her husband's estate or what deduction should be taken therefrom for the debtor-creditor relationship in calculating the federal estate tax in her estate. We have in evidence also a letter (Exhibit 11) sent to the Internal Revenue Service under date of January 20, 1967, over three months before the audit report was mailed out which clearly pinpoints the dispute. While we realize that amendments setting forth a completely different claim after the period of limitations had run are not permitted, nevertheless, if the essential facts are set forth and the amendment merely makes the claim more definite then it cannot be objected to. See St. Joseph Lead Co. v. United States, D.C., 190 F.Supp. 637, aff'd 299 F.2d 348 (2 Cir. 1960). Sappington v. United States, 408 F.2d 817 (4th Cir. 1969).
In any event, the government did not raise the question of the adequacy of the claim for refund in its answer to the complaint or in the pretrial narrative statement and is thus procedurally barred from raising it at this time.
Second, the claim for additional attorney's fees. Total attorney's fees of $5,000 have already been allowed as a deduction in this estate. The refund claim (Exhibit 2) in item C merely states that the Internal Revenue Service improperly disallowed an attorney's fee deduction of $3,110. This $3,110 was allowed in the audit report issued by the Internal Revenue Service forwarded by letter dated May 10, 1967 (Exhibit 1). The estate now claims an additional attorney's fee in the amount of $10,000 for services in the state court litigation with respect to the issue.
There is no question that a deduction for additional attorney's fees in connection with this claim for refund is allowable at audit: Regulation 20.2053-3.[5] But evidence must be submitted of the amount "actually paid". No evidence of payment has been submitted.
We do not believe that under the circumstances of this case attorney's fees incurred in the declaratory judgment proceedings, which was determined adversely to the estate, are deductible and we will only allow attorney's fees in connection with representation of the estate in this proceeding for refund in federal court and prosecution of the claim before the Internal Revenue Service, and to the extent these have been actually paid. From the facts known to the court in connection with this litigation and in filing the claim for refund and considering all factors to be considered under the Canons of Ethics, (see Ethical Considerations 2-18 as contained in the Code of Professional Responsibility effective January 1, 1970) we will fix the additional attorney's fee to be allowed as a deduction in this estate in the amount of $1,500.00 upon presentation of evidence of payment.
*72 Separate findings of fact and conclusions of law are not set forth because the same are contained in the foregoing opinion in compliance with Rule 52(a).
The parties shall submit within 10 days from the date of this order a form of judgment embodying the calculations determining the exact amount of refund to be made in accordance with the terms of this opinion. Evidence of payment of attorney's fees, if any, shall also be submitted therewith. If the parties are unable to agree upon the calculation, each is privileged to submit its own calculation and final decision will be made by the court.
ORDER
AND NOW, to wit, September 23, 1971, IT IS ORDERED that a deduction of $102,285.50 instead of $93,452.49 shall be allowed as a claim against the Estate of Anna S. Purnell, deceased in calculating the federal estate tax due and owing from the estate to the United States.
IT IS FURTHER ORDERED that an additional deduction shall be allowed for additional attorney's fees in the amount of $1,500 upon presentation of evidence of payment of the same within 10 days from the date hereof.
IT IS FURTHER ORDERED that the federal estate tax in the Estate of Anna S. Purnell shall be recalculated in accordance with this order and a refund shall be allowed in the amount disclosed by such recalculation for which judgment shall be entered against the United States.
IT IS FURTHER ORDERED that the parties shall submit within 10 days from the date of this order a form of final judgment determining the exact amount of refund due in accordance with the terms of this opinion and order. If unable to agree, each is privileged to submit its own calculation and the final judgment will then be determined and entered by the court.
NOTES
[1] "* * * The value of the taxable estate shall be determined by deducting from the value of the gross estate such amounts * * * for claims against the estate * * * as are allowable by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered." I.R.C. § 2053(a), 26 U.S.C. § 2053(a).
[2] The Supreme Court had this to say:
"We deem it necessary to discuss several facts since they are somewhat unusual. Ansby's widow elected to take under her husband's will; moreover, she also elected to take in kind the stocks and bonds which were listed at their value at the time of distribution to her. On April 28, 1943, the auditing Judge entered a Decree of Distribution which directed Ansby's executors to distribute to "Anna S. Purnell, life tenant" the stocks and bonds contained in his residuary estate, which were valued at $97,785.50. No exceptions were ever filed to this Decree." 226 A.2d 490.
[3] "Distribution of the assets hereunder is subject to a debt due by the decedent to Verner S. Purnell pursuant to a decree entered in this action in a declaratory judgment proceeding. The amount of the debt is $118,372.13 as calculated on Exhibit `A' attached."
[4] "a. Property of the value of $302.647.07 was improperly included as a taxable asset of the estate of the decedent."
[5] "(c) Attorney's fees. * * *
(2) A deduction for attorney's fees incurred in contesting an asserted deficiency or in prosecuting a claim for refund should be claimed at the time the deficiency is contested or the refund claim is prosecuted. A deduction for reasonable attorney's fees actually paid in contesting an asserted deficiency or in prosecuting a claim for refund will be allowed even though the deduction, as such, was not claimed in the estate tax return or in the claim for refund. A deduction for these fees shall not be denied, and the sufficiency of a claim for refund shall not be questioned, solely by reason of the fact that the amount of the fees to be paid was not established at the time that the right to the deduction was claimed."
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195 P.3d 1266 (2008)
2008-NMCERT-008
HART
v.
STATE FARM.
No. 31,243 (COA 27,633).
Supreme Court of New Mexico.
August 13, 2008.
Denial of Certiorari.
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122 B.R. 68 (1990)
In re James J. ALLAMON, Jr., Debtor.
James J. ALLAMON, Jr., Plaintiff,
v.
Helen NICHOLS and State Farm Insurance, Defendants.
Bankruptcy No. 3-89-00852.
United States Bankruptcy Court, S.D. Ohio, W.D.
December 5, 1990.
*69 Jeffrey P. Albert, Dayton, Ohio, for debtor.
John A. Smalley, Dayton, Ohio, for defendants.
John P. Rieser, Dayton, Ohio, Trustee.
DECISION ON ORDER DENYING PLAINTIFF'S MOTIONS TO AVOID LIENS
THOMAS F. WALDRON, Bankruptcy Judge.
This proceeding, which involves the debtor's motions to avoid two judicial liens, arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district on July 30, 1984, and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B)allowance or disallowance of exemptions from property of the estate, and (K) determinations of the validity, extent, or priority of liens.
The debtor, James J. Allamon Jr., filed for relief under chapter 7 of the Bankruptcy Code on March 7, 1989 (Doc. 1). On October 4, 1989, the debtor received a discharge and the case was subsequently closed. The debtor filed an amended motion to reopen his chapter 7 case (Doc. 16) in order to add Helen Nichols and State Farm Insurance as creditors. On June 8, 1990, an order granting the debtor's motion to reopen was entered (Doc. 17). The debtor then filed motions (Doc. 20 and Doc. 21) to avoid the judicial liens of these two creditors. The motions allege that these liens impair an exemption to which the debtor is entitled, and, therefore, pursuant to 11 U.S.C. § 522(f), these liens may be avoided.
The court issued an order (Doc. 22) which noted that Ford Motor Credit Corp. v. Dixon (In re Dixon), 885 F.2d 327 (6th Cir.1989) appeared to prohibit the relief requested; however, the debtor was granted the opportunity to file a memorandum which would establish a basis to grant the relief requested. The debtor filed a Memorandum In Support Of Motion To Avoid Judicial Lien (Doc. 23) and the defendant filed a Reply To Debtor's Motion To Avoid Judicial Lien (Doc. 24).
In his memorandum (Doc. 23), the debtor argues that application of Dixon to the present case would give Dixon retroactive effect. The debtor asserts that had he scheduled these creditors at the time he filed the original chapter 7 petition, these liens could have been avoided. The memorandum states that the judgment lien of another creditor had been avoided during the initial bankruptcy case.[1] In reply, the defendant argues that Dixon is currently applicable and must be applied to the present case regardless of whether previous authority would have yielded a contrary result (Doc. 24).
It is generally held that cases must be decided "in accordance with the law existing at the time of decision." Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 2621, 96 L.Ed.2d 572 (1987); accord Lund v. Shearson/Lehman/American Express, Inc., 852 F.2d 182, 183 (6th Cir.1988); Lawson v. Truck Drivers, Chauffeurs & Helpers, Local Union 100, 698 F.2d 250, 254 (6th Cir.1983), cert. denied sub nom. *70 Leach v. U.S. Postal Service, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). Case law has established criteria to be examined in determining exceptions to this generally applicable rule. In Chevron Oil Co. v. Huson, 404 U.S. 97, 107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), the Court noted three factors which must be considered in determining whether to refrain from retroactively applying a decision.
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship' by a holding of nonretroactivity." (citations omitted).
Chevron Oil, 404 U.S. at 107, 92 S.Ct. at 355; Accord Carter v. City of Chattanooga, Tennessee, 850 F.2d 1119 (6th Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989).
The first factor listed in Chevron Oil has been referred to as the "clear break" principle. The "clear break" principle is the "threshold test for determining whether or not a decision should be applied nonretroactively." U.S. v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587 n. 12, 73 L.Ed.2d 202 (1982).
Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, or disapproves a practice this Court arguably has sanctioned in prior cases, or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. (citations omitted).
Johnson, 457 U.S. at 551, 102 S.Ct at 2588.
The decision in Dixon did not explicitly overrule a past precedent of the Sixth Circuit, or disapprove a practice that the Sixth Circuit arguably had sanctioned in prior cases, or overturn a longstanding and widespread practice to which the Sixth Circuit had not spoken, but which a near-unanimous body of lower court authority had expressly approved.
Although Dixon was a case of first impression for the Sixth Circuit, the decision simply resolved a conflict concerning the interpretation of Ohio law which existed among the bankruptcy and district courts within the circuit. Dixon at 329 n. 3.[2]Dixon does not come within the "narrow class of decisions whose nonretroactivity is effectively preordained because they unmistakably signal `a clear break with the past'." Johnson, 457 U.S. at 553-554, 102 S.Ct. at 2589 (quoting Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969)).
Further, in light of the Sixth Circuit's explicit determination in Dixon of the meaning of O.R.C. § 2329.66(A)(1), and upon review of the second and third factors enunciated in Chevron Oil, the court concludes that the debtor failed to demonstrate that there will be an inequitable result arising from the application of Dixon to this proceeding.
Having determined that Dixon is applicable, the court notes that the debtor's motions fail to allege that the lien holder has initiated any proceedings to enforce the lien. As this court has previously stated in Matter of Herrera, No. 3-90-01890 (Bankr. S.D.Ohio Oct. 19, 1990):
In reaching its decision, the court considered applicable Ohio law governing *71 this issue as that Ohio law has been interpreted by the Sixth Circuit in In re Dixon, 885 F.2d 327 (6th Cir.1989). Although this court is cognizant of the liberal construction Ohio affords its exemption statutes,2 in approaching issues of statutory construction this court is compelled to honor the cardinal rule that such an analysis must begin with the language of the statute itself. Noticeably absent from the Ohio Exemption Statute in issue (ORC 2329.66) are the words "foreclosure judgment" and noticeably present in the Ohio Exemption Statute in issue are the words "sale to satisfy a judgment". Counsel for the debtor's position that the existence of a foreclosure judgment is sufficient to trigger the availability of the Ohio exemption for the debtor is not supported by the language of the statute. To the contrary, Bank One's position that a proposed sale to satisfy a judgment or order must be pending is supported by the language of the statute.
2. Matter of Young, 93 B.R. 590 (Bankr.S.D. Ohio 1988).
Further insight into the meaning of the text of O.R.C. § 2329.66(A)(1) was given in Matter of Brown, 123 B.R. 260 (Bankr. S.D.Ohio 1990), a decision by the Honorable J. Vincent Aug, Jr. In Brown, Judge Aug stated:
Ohio Rev.Code Ann. section 2329.66 sets forth the authorized exemptions which may be asserted by debtors. A homestead exemption exists under Ohio Rev. Code Ann. section 2329.66(A)(1) which allows,
Every person who is domiciled in this case may hold property exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order, as follows:
(1) the person's interest, not to exceed five thousand dollars, in one parcel or item of real or personal property that the person or a dependant [sic] of the person uses as a residence. (Emphasis added).
While there has been conflict over the interpretation of the statute in the past, the Sixth Circuit stated in Dixon that, "[i]nterpretation of a statute must begin with the plain language." Id. at 330 (citing United States v. Ron Pair Enterprises, Inc. [489 U.S. 235], 109 S.Ct. 1026, 1030 [103 L.Ed.2d 290] (1989); Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 [105 S.Ct. 2297, 2301, 85 L.Ed.2d 692] (1985)). "The explicit language of [the statute] makes clear that absent an attachment or other involuntary disposition of the debtor's property the debtor's exemption is not impaired." Dixon, 885 F.2d at 330 (citing In Re Peck, 55 B.R. 752, 755 (N.D.Ohio 1985)). Based on the pleadings and the Court's own research, no authority could be found that equates an actual sale proceeding with the possibility of a future sale. An order of sale was about to issue in this case if the Debtors did not exercise their equity of redemption right. The existence of a lien is merely the possibility that a sale may ensue at some future time. A "lien's existence is not predicated upon its execution, and a stay of the execution will not postpone the lien's creation, nor destroy one already in existence." Tyler Refrigeration Equipment v. Stonick, 3 Ohio App.3d 167, 169, [444 N.E.2d 43] (1981). Therefore, absent a judicial sale or other form of involuntary execution the judicial lien on the debtors' residence cannot be avoided.
Because the debtor's property is not presently subject to a pending "execution, garnishment, attachment or sale to satisfy a judgment or order" as required by O.R.C. § 2329.66(A)(1), the judicial liens against the debtor's property are not avoidable.
Accordingly, the debtor's motions to avoid the judicial liens (Doc. 20 and Doc. 21) are DENIED.
An order in accordance with this decision is simultaneously entered.
SO ORDERED.
NOTES
[1] The court acknowledges that the order of lien avoidance referred to by the debtor was entered on May 16, 1989, which was prior to September 19, 1989, the date Dixon was decided. The court also notes that the only opposition to the debtor's motion was withdrawn (Doc. 9).
[2] Although the split of authority with regard to this issue existed only in the reported decisions of the Northern and not the Southern District of Ohio, considered in their totality, these decisions cannot be accurately characterized as "a near unanimous body of lower court authority" expressly approving a long standing and wide-spread practice of lien avoidance.
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Order entered May 2, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00105-CV
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant
V.
ELLEN S. VITETTA, Appellee
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-09146
ORDER
Before the Court is appellant’s May 1, 2019 unopposed motion for a one-week extension
of time to file its reply brief. We GRANT the motion and ORDER the reply brief be filed no
later than May 13, 2019.
/s/ KEN MOLBERG
JUSTICE
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524 P.2d 1015 (1974)
86 N.M. 393
Robert L. BUHLER and Collum B. Watson, Plaintiffs-Appellants,
v.
Donaciano MARRUJO and Guadalupe V. Marrujo, his wife, the Bank of Las Vegas, a State Bank, Gary C. Lawrence, Charles V. Glover and William A. Gerdeman, Defendants-Appellees.
No. 1250.
Court of Appeals of New Mexico.
June 26, 1974.
*1016 Leon Karelitz, Karelitz & Flores, Las Vegas, for plaintiffs-appellants.
Roberto L. Armijo, Las Vegas, for defendants-appellees Donaciano Marrujo and Guadalupe V. Marrujo.
Joseph A. Sommer, Sommer, Lawler & Scheuer, P.A., Santa Fe, for defendants-appellees The Bank of Las Vegas, Charles V. Glover and William A. Gerdeman.
*1017 OPINION
SUTIN, Judge.
Plaintiffs, as purchasers, sued defendants Marrujo, as sellers, for specific performance of a real estate contract which was in full force and effect; that plaintiffs deposit the balance of the purchase price plus interest with the court; and for punitive damages. Plaintiffs also sued defendants, The Bank of Las Vegas (Bank), and Glover and Gerdeman, its officers, for compensatory and punitive damages as escrow agents. The trial court sustained defendants' motions to dismiss with prejudice. Plaintiffs appeal. We reverse.
A. Facts.
On June 24, 1969, plaintiffs filed a complaint in Bernalillo County, Cause No. A41489, against defendant Donaciano Marrujo. Plaintiffs' complaint sought compensatory and punitive damages for fraud on the part of defendant for inducing plaintiffs to enter into a contract for the purchase of certain real estate in San Miguel County which contract was terminated without notice by defendant. Mrs. Marrujo, who was a party to the contract, was not a defendant in this claim. The contract is the same contract which plaintiffs seek to specifically enforce in the present action arising out of the claim filed in San Miguel County.
On April 5, 1971, the trial court, after a trial on the merits, resolved all issues in favor of defendant and dismissed plaintiffs' complaint with prejudice. Defendant had filed requested findings and conclusions, but none were made by the court. There was no appeal from this judgment.
On May 12, 1970, while the Bernalillo County case was pending, plaintiffs filed a complaint against the present defendants in San Miguel County. Plaintiffs' attorneys in the San Miguel County case were not the same as those in the Bernalillo County case. The venue was laid in San Miguel County because of § 21-5-1(D)(1), N.M.S.A. 1953 (Repl. Vol. 4).
The San Miguel County complaint alleged that the contract was wrongfully terminated for nonpayment of monthly installments and that the Bank wrongfully returned the warranty deed to the defendants Marrujo. Plaintiffs sought the following relief: (1) specific performance of the real estate contract and punitive damages against defendants Marrujo; (2) compensatory and punitive damages against the Bank, Glover and Gerdeman who allegedly wrongfully delivered the escrowed warranty deed to Marrujo.
Defendants Marrujos' motion to dismiss was based upon (1) election of remedies; (2) res judicata and collateral estoppel; and (3) defendants are husband and wife and the above case involved their community property. The other defendants' motion to dismiss was based on (1) res judicata; (2) election of remedies; (3) the complaint failed to state a claim upon which relief could be granted; and (4) that by election to seek damages for fraud and deceit, plaintiffs disaffirmed the validity of the contract.
B. The dismissals were erroneous.
(1) Election of remedies is not applicable.
The question is: Was the unsuccessful claim to recover damages in Bernalillo County against defendant Marrujo a conclusive election of remedies which prevents an action for specific performance of the contract in San Miguel County? The answer is "No."
First, the doctrine of election of remedies is not a doctrine of substantive law. It is a rule of procedure or judicial administration. It is no longer a defense. The common law doctrine has no application under Rule 8(e) (2) [§ 21-1-1(8)(e)(2), N.M.S.A. 1953 (Repl. Vol. 4)]. Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 74 N.M. 458, 394 P.2d 978 (1964); Montgomery v. Cook, 76 N.M. 199, 413 P.2d 477 (1966); Bernstein v. United States, 256 F.2d 697, 706 (10th Cir. *1018 1958); Singer v. Scholz Homes, Inc., 36 Ohio App.2d 125, 303 N.E.2d 86 (1973).
Rule 8(e)(2), supra, reads in part as follows:
A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both.
"This statute permits a party to state as many claims as he has regardless of consistency." Platco Corporation v. Shaw, 78 N.M. 36, 428 P.2d 10 (1967). In Honaker, supra, plaintiff was allowed to recover in either damages or rescission. The same rule would apply to damages or specific performance.
Second, does the doctrine of election of remedies apply when separate claims are filed in different districts? We say "No."
As pointed out above, the common law doctrine of election of remedies no longer exists as a doctrine of substantive law. It is a matter of judicial administration. It is not a defense. Although the plaintiffs' claim should be filed in one complaint in one district court, under the record in this case, the administration of justice dictates that the plaintiffs' claim in San Miguel County should not fail because of an alleged defense which does not exist.
Election of remedies was no defense.
C. Res judicata and collateral estoppel are not defenses.
The rules of res judicata and collateral estoppel are well settled.
Lindauer Mercantile Co. v. Boyd, 11 N.M. 464, 475, 70 P. 568, 570 (1902) stated:
To make a matter res judicata there must be a concurrence of the four conditions following, viz.: First, identity of the subject-matter; second, identity of cause of action; third, identity of persons and parties; and, fourth, identity in the quality of the persons for or against whom claim is made.
See also, Adams v. Cox, 55 N.M. 444, 234 P.2d 1043 (1951); Perry v. Staver, 81 N.M. 766, 473 P.2d 380 (Ct.App. 1970). Res judicata was not a defense.
Collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Terry v. Pipkin, 66 N.M. 4, 340 P.2d 840 (1959).
A review of the pleadings and judgment in the Bernalillo County case discloses no identity of subject matter, cause of action or identity of persons and parties. Mrs. Marrujo was not a party defendant. Neither do we find estoppel upon any questions, points or matters of fact in issue.
Collateral estoppel is not a defense in this action.
D. The complaint stated a claim for relief against the Bank and its officers.
The Bank and its officers filed a motion to dismiss because the complaint failed to state facts sufficient on its face upon which relief can be granted. In its order of dismissal, the trial court took judicial notice of the Bernalillo County case and ordered that plaintiffs' complaint be dismissed with prejudice. The trial court did not allow the plaintiffs to amend the complaint with or without leave of court as provided by Rule 15(a) of the Rules of Civil Procedure [§ 21-1-1(15)(a), N.M.S.A. 1953 (Repl. Vol. 4)].
Plaintiffs should have been allowed to amend as a matter of course because a motion to dismiss is not a responsive pleading within Rule 15(a), supra. Atol v. Schifani, 83 N.M. 316, 491 P.2d 533 (Ct. App. 1971); Jacobson v. State Farm Mutual Automobile Ins. Co., 81 N.M. 600, 471 P.2d 170 (1970); Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965).
A motion to dismiss under rule 12(b)(6) [§ 21-1-1(12)(b)(6), N.M.S.A. 1953 (Repl. Vol. 4)] is properly granted only when it appears that the plaintiff is not entitled to relief under any state of *1019 facts provable under the claim. For purposes of the motion, the material allegations of the complaint are admitted. Pattison v. Ford, 82 N.M. 605, 485 P.2d 361 (Ct.App. 1971).
The contract between plaintiffs and Marrujo provided that Marrujo would make and execute a warranty deed to be placed in escrow with the Bank, to be held by the Bank for delivery to plaintiffs upon payment in full of the balance of the purchase price. On breach of the contract by the plaintiffs, the Marrujos had the right to retain the down payment as liquidated damages and demand return of the warranty deed. The Bank acknowledged receipt of the contract and warranty deed to be held in escrow in accordance with the terms of the contract. However, it was understood that the Bank would be liable only for gross negligence or willful misconduct. The complaint alleged that the Bank wrongfully delivered the warranty deed to Marrujo within the language of the escrow agreement. "Wrongful" is defined as injurious, heedless, unjust, reckless, unfair. It implies the infringement of some right, and may result from disobedience to lawful authority. Mathes v. Williams, 134 S.W.2d 853 (Tex.Civ.App. 1939).
The Bank contends that the wrongful delivery could not damage plaintiffs. We disagree. When an escrowee bank wrongfully delivers a deed, it acts at its peril if the plaintiffs can show a right to the deed. Davisson v. Citizens' National Bank of Roswell, 15 N.M. 680, 113 P. 598 (1910), affirmed in Citizens' National Bank of Roswell v. Davisson, 229 U.S. 212, 33 S.Ct. 625, 57 L.Ed. 1153 (1913).
The measure of damages is the amount of money that would place the plaintiffs in as good a position as they would have occupied if defendants had not breached their contract. Defendants assert plaintiffs' only damages are the costs of a suit for specific performance. That action, they say, would have to be instigated even if the Bank had not returned the warranty deed. While plaintiffs' claimed damages may in large part duplicate expenses that would be incurred regardless of the Bank's action, we cannot say on the record before us that there were no damages as a proximate result of that action. Dismissal on this basis was improper. Plaintiffs are entitled to have the warranty deed placed once more in the possession of the Bank subject to the terms of the escrow agreement. Allen v. Allen Title Company, 77 N.M. 796, 427 P.2d 673 (1967).
Defendants further assert that no cause of action was stated against the Bank officers, Lawrence, Glover and Gerdeman. The complaint stated that these defendants "... negligently or oppressively or with wanton disregard of the rights of plaintiff... without first giving said plaintiff notice, returned the escrowed deed ..." to defendants Marrujo. This is a sufficient statement of a claim for breach of duty as officers of the Bank.
The defendants claim that if the action brought by plaintiffs necessitated redelivery of the deed, the "expenses" would not include attorneys' fees. This issue was not determined in the trial court and is not before us for review.
The trial court erred in dismissing plaintiffs' complaint with prejudice.
Reversed.
It is so ordered.
HENDLEY, J., specially concurring.
HERNANDEZ, J., specially concurring.
HENDLEY, Judge, specially concurring.
I concur in the majority opinion except as to the reasoning under the discussion of election of remedies. That reasoning overrules prior Supreme Court precedent. Accordingly, I would handle the discussion as follows.
The doctrine of election of remedies is "harsh and not a favorite of equity." Bernstein, supra, Rule 8(e)(2), supra, curtails the doctrine in its application to multiple claims in a single action. See *1020 Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 74 N.M. 458, 394 P.2d 978 (1964). Its harshness does not outweigh the force of Supreme Court precedent recognizing its vitality. Franciscan Hotel Co. v. Albuquerque Hotel Co., 37 N.M. 456, 24 P.2d 718 (1933). See also Alvarez v. Board of Trustees of La Union Townsite, 62 N.M. 319, 309 P.2d 989 (1957); Fuqua v. Trego, 47 N.M. 34, 133 P.2d 344 (1943).
Nevertheless, the doctrine does not apply to the present facts. It applies "... where there are two or more remedies ... which are alternative and inconsistent with each other, and not cumulative, so that, after the proper choice of one, the other or others are no longer available." Williams v. Selby, 37 N.M. 474, 24 P.2d 728 (1933). The cause of action in the Bernalillo County cause was for fraud in the inducement of the land sale contract. The present case states two causes of action: First, specific performance of the land sale contract against the Marrujos; and Second, damages against the Bank and its employees for breach of a fiduciary duty.
In the present cause the first claim was not inconsistent with the Bernalillo County action. The claimed wrongs were concurrent. The party fraudulently induced to enter a contract may elect to perform and sue for damages. See Terrel v. Duke City Lumber Company, Inc., (Ct.App.) 86 N.M. 405, 524 P.2d 1021 decided May 22, 1974 (Judge Hernandez concurring opinion). If the other party then refuses to perform, an action for specific performance arises which can be pursued concurrently. See Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106 (9th Cir.1969).
A further test for consistency is whether a certain state of facts relied on as the basis of a certain remedy is inconsistent with, and repugnant to, another certain state of facts relied on as the basis of another remedy. See Abdallah v. Abdallah, 359 F.2d 170, 17 A.L.R.3d 967 (3rd Cir.1966). The Bernalillo County suit was only against Donaciano Marrujo. The facts relied on were that due to certain false statements concerning "a constant source of water" across the property plaintiffs were induced to enter the contract. Whereas, the basis for the San Miguel County claims against the Marrujos is that the Marrujos agreed to a suspension of payment and thereby waived their right to terminate the contract. These facts are consistent.
Defendants also assert that plaintiffs' Bernalillo County action is one for damages and recission. The complaint does not bear out defendants' assertion that it was for recission. The court resolved all issues in favor of Donaciano Marrujo as to liability and never reached the issue of damages. The election of remedies doctrine does not apply when there is no judgment on the issue. Franciscan Hotel Co. v. Albuquerque Hotel Co., supra.
The resolution as to the Bernalillo County cause applies equally to San Miguel County cause against the Bank and its employees. The Bank and its employees are even further removed from the Bernalillo County cause in that they were not parties to that cause and so could not be affected by any action in that cause.
HERNANDEZ, Judge, specially concurring.
I concur in the result. I do not agree in Judge Sutin's conclusion that the doctrine of election or remedies is no longer a defense. Had the plaintiffs sued for rescission and damages in the Bernalillo County suit the doctrine would have been a defense to the instant cause. Rule 8(e)(2), supra, does allow a person to plead for rescission and damages or affirmation and damages in the alternative in one lawsuit, but it does not allow one to plead inconsistent claims in separate suits. See Davies v. Boyd, 73 N.M. 85, 385 P.2d 950 (1953); Brown v. Alkire, 295 F.2d 411 (10th Cir.1961); 12 Williston, Contracts § 1523, at 608 (3rd ed. 1970).
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693 F.Supp. 587 (1988)
Stanley R. WAXMAN, et ux, et al.
v.
HARDAWAY CONSTRUCTION COMPANY, INC., et al.
No. 3-85-1066.
United States District Court, M.D. Tennessee, Nashville Division.
March 7, 1988.
Stanley R. Waxman, Memphis, Tenn., pro se.
Douglas Fisher and Thomas M. Pinckney, Jr., Howell, Fisher, Branham & North, *588 Nashville, Tenn., for defendants Hardaway Const. Co., Inc., Employee Benefit Plan, Charles Hardaway, Hardaway Const. Co., Inc., L. Hall Hardaway, Sr., L. Hall Hardaway, Jr., and American Group Administrators, Inc.
John S. Bryant, Bass, Berry & Sims, Nashville, Tenn., for defendant Lafayette Life Ins. Co.
MEMORANDUM
JOHN T. NIXON, District Judge.
This is an action brought by Stanley Waxman, his wife, Jean Waxman, and his son, Michael L. Waxman, to recover from the defendants certain medical and hospital expenses pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S. C. § 1001, et seq. ("ERISA"). Plaintiffs contend that such payments are due them by reason of their participation in a program providing medical and hospitalization coverage, and life insurance coverage, known as the Hardaway Construction Company, Inc. Employee Benefit Plan (hereinafter referred to as the "Hardaway Plan"). Defendants Hall Hardaway, Sr., Hall Hardaway, Jr., Charles Hardaway, Hardaway Construction Company, Inc., the Hardaway Plan, and American Group Administrators, Inc. (hereinafter referred to as the "Hardaway defendants"), assert two defenses. First, they contend that plaintiffs have no statutory standing to bring this action under ERISA because plaintiffs were never ERISA participants or beneficiaries. Second, they assert that plaintiffs were terminated from the Hardaway Plan for nonpayment of premiums prior to the date upon which the hospital and medical expenses in question were incurred and that plaintiffs were never reinstated after their termination. Defendants Donald Luna and LHC & Associates, Inc. have not answered the complaint and did not appear at trial. Plaintiffs' claims against Lafayette Life Insurance Company, and all issues related to damages, were severed from the trial to determine the liability of the remaining defendants by Order entered July 15, 1987. The first phase of the trial in this matter was tried by the Court, without a jury, on July 15, 1987. This Memorandum constitutes the Court's findings of fact and conclusions of law in accordance with Rule 52 of the Federal Rules of Civil Procedure.
I. FINDINGS OF FACT
The principal characters in this lawsuit are plaintiff Stanley Waxman and defendants Hall Hardaway, Jr., Donald Luna, and Charles Hardaway. Plaintiff Stanley Waxman is a financial consultant with an extensive business background. At one time he was responsible for an insurance program and negotiated insurance contracts with insurers and reinsurers. Defendant Hall Hardaway, Jr., was and is vice chairman of Hardaway Construction Company. He is active in 150 partnerships and ten corporations, including defendant Hardaway Construction Company. He is one of the trustees of the Hardaway Plan. Defendant Donald Luna was a mortgage broker in the business of procuring loans. Defendant Charles Hardaway was the Hardaway Plan's coordinator.
Waxman, Luna, and Hall Hardaway, Jr. first became acquainted in 1980 when Waxman and Luna presented a business proposition to Hall Hardaway, Jr. concerning Poole Truck Line. Hardaway rejected this venture. Subsequently, Waxman and Luna agreed that Waxman would do loan brokering work for Luna on an independent contractor basis.
In early 1982, Hall Hardaway, Jr. agreed to allow Luna and some of his business associates to use office space owned by Hardaway Construction Company. Hardaway hoped that Luna would be able to secure financing for construction projects in which Hardaway was involved. Hardaway also advanced money to Luna and allowed him to use credit cards with the expectation that these sums would be recouped from fees Luna would earn by arranging loans. Neither Luna nor Waxman was ever on the regular payroll of any Hardaway entity.
In the summer of 1982, Luna asked Hall Hardaway, Jr. if Luna and one or two of his associates could participate in the Hardaway *589 Plan, which provided hospitalization and medical coverage, and life insurance for participants, and afforded them an option to make this coverage available to their dependents upon payment of the premium. Luna agreed to pay for the participation of himself and his associates. Hardaway agreed to permit Luna and his associates to participate, and Waxman was enrolled in the Hardaway Plan on July 1, 1982. Waxman was issued an enrollment card and was given a booklet outlining the benefits available under the plan. Waxman allowed his other health insurance coverage to lapse in reliance upon his status as a participant in the Hardaway Plan.
Waxman viewed his participation in the Hardaway Plan as a gift or "perk." He testified that he did not know and could care less who made the gift. Defendant Charles Hardaway, the Hardaway Plan's insurance coordinator, issued invoices to Luna for premiums due under the Hardaway Plan for Luna and his associates. Hardaway did not send premium notices directly to Waxman.
Waxman, his wife, and his son were participants in the Hardaway Plan beginning June 1, 1982, and all claims submitted by plaintiffs for medical expenses that were incurred from June 1, 1982, until October 31, 1982, were paid by the Hardaway Plan. On July 1, August 1, September 1, and October 1, 1982, however, Charles Hardaway sent Luna invoices advising him that Waxman's payments were delinquent. Hardaway relied on Luna to pay the invoices or give them to Waxman. On August 19, 1982, Pappy Grove, an associate of Luna, sent a notice to Hardaway advising him that "[w]e have contacted Stanley Waxman today requesting his payments due." Waxman denies that he received the invoices Hardaway sent to Luna, but he acknowledges that he received notice from Luna's office that his payments were overdue.
On October 30, 1982, Luna submitted a check to Charles Hardaway to pay premiums owed by himself and Peggy Smith, one of Luna's associates. Luna paid no premium on Waxman's behalf, and no premium for Waxman had yet been received from any source. As a result, Charles Hardaway terminated Waxman from the Hardaway Plan on October 31, 1982, but Hardaway did not communicate this fact to Waxman immediately. Thereafter, however, Charles Hardaway sent Waxman four notices that he had been terminated from the Hardaway Plan.
First, in January of 1983, Charles Hardaway received bills for medical services rendered to one of Waxman's dependents, but Hardaway returned the bills to Waxman. In a letter sent to Waxman on January 20, 1983, accompanying the return of these bills, Hardaway informed Waxman that coverage had been terminated on October 31, 1982. Waxman denies that he received this letter. Second, on February 1, 1983, in another letter sent to Waxman, Charles Hardaway states: "We are returning claim on Michael Waxman for services rendered after expiration date of November 1, 1982." Waxman also claims he did not receive this letter. Third, in February of 1983, Waxman was told directly by Charles Hardaway that he had been terminated. Waxman acknowledges that Hardaway told him this, but stated that he did not accord it much credence because Luna and Hall Hardaway, Jr., had given him conflicting information. Waxman stated, however, that he knew that Charles Hardaway was the Hardaway Plan insurance coordinator and that when Waxman had claims he submitted them to Charles Hardaway. Fourth, in May of 1983, defendant American Group Administrator's Inc. sent a form to Charles Hardaway that Hardaway then sent to Waxman. In the "Remarks" section of that form, Waxman again was informed that his policy was terminated on October 30, 1982. Waxman acknowledged that he had received this form.
In February of 1983, Luna's corporation, LHC & Associates, Inc., became entitled to $193,000 from Imperial Associates, Inc., a Hardaway development corporation. Charles Hardaway determined that Luna and his associates owed the Hardaway Plan the sum of $3,260.60. Part of this was to go toward the premiums owed by Waxman for the time period ending in October of *590 1982 when he was covered by the Hardaway Plan. This sum incorrectly included a premium for Waxman for November of 1982. This was the only payment ever made on behalf of Waxman, and it was made four months after he had been terminated from the Hardaway Plan.
On March 3, 1983, Luna asked Hall Hardaway, Jr. to write Waxman a check for $40,000. Luna told Hardaway that Waxman needed the money because his house was being foreclosed upon. Hardaway wrote the check with the understanding that Luna and LHC & Associates, Inc. would be responsible for repayment. Luna testified that the $40,000 paid to Waxman was given as an advance of money that was to be due Luna on a venture in Mississippi.
In June of 1984, Luna called Hall Hardaway, Jr. and asked if Hardaway could help get Michael Waxman admitted into Baptist Memorial Hospital in Memphis. Luna said he would take care of the payments. Hall Hardaway, Jr. said that he did not think that Waxman had any coverage under the Hardaway Plan, but would check to see. Luna later talked to Charles Hardaway and told Hardaway to send the bills for Michael Waxman's hospitalization to Luna. When a person from the Memphis hospital contacted Charles Hardaway, Hardaway told the person to send all bills to him. After receiving the bills, Hardaway forwarded them to Luna.
The Hardaway Plan contained a conversion privilege that allowed certain persons to continue under the plan after terminating their employment with the Hardaway Construction Company, Inc. This provision stated:
CONVERSION TO AN INDIVIDUAL MEDICAL POLICY
If your coverage ceases because of termination of employment, you are entitled to convert to an Individual Medical Insurance Policy, without evidence of insurability, provided written application and the first premium payment required for the individual policy are made to the Insurance Company within thirty-one (31) days from the date your employment terminated. If you covered your dependents under the Company's Plan on the day your coverage terminated, you may also cover these same dependents under the Individual Medical Insurance Policy. The benefits, premium rates, terms and conditions of the Individual Medical Insurance Policy will be provided you upon request by the Company's personnel office.
II. CONCLUSIONS OF LAW
Plaintiffs have brought this action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA"). As an initial matter, the Court must consider whether it has subject matter jurisdiction over plaintiffs' claims. Determining whether plaintiffs have standing is a "threshold question in every federal case [that] determine[s] the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). According to defendants, the Court lacks jurisdiction because ERISA does not confer standing to sue upon Waxman who, at most, was an independent contractor of Hardaway Construction Co., and was never an employee. Defendants reason that because Waxman was not an employee on defendants' payroll, none of the plaintiffs were participants in the Hardaway Plan for purposes of ERISA.
Plaintiffs bring this action under 29 U.S. C. § 1132(a)(1), which provides:
A civil action may be brought
(1) by a participant or beneficiary
....
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.
The term "participant" is defined as:
[A]ny employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, *591 or whose beneficiaries may be eligible to receive any such benefit.
Id. at § 1002(7) (emphasis added). Thus, plaintiffs' right to pursue an ERISA claim against defendants, and this Court's jurisdiction, depend upon whether Stanley Waxman was an "employee" for the purposes of ERISA, or whether he was an independent contractor.
The statute itself provides little guidance concerning the proper interpretation to be given the term "employee" in the ERISA context. "Employee" is defined merely as "any individual employed by an employer." Id. at § 1002(6). As a result of this lack of statutory guidance, courts have looked to two definitions of the employer/employee relationship developed in other areas of law. Each of these definitions is now considered separately.
A number of courts have adopted the common-law standard for determining employment status. See Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F.2d 567, 572 (8th Cir. 1984); Wardle v. Central States, Southeast & Southwest Areas Pension Fund, 627 F.2d 820, 824 (7th Cir.1980); Porter v. Commissioner, 8 Employee Benefits Cas. (BNA) 1374, 1378 (T.C.1987); Holt v. Winpisinger, 8 Employee Benefits Cas. (BNA) 1169, 1174-75, 811 F.2d 1532 (D.C.Cir. 1987). In determining the existence of a common-law employer/employee relationship, "the crucial test lies in the right of control, or lack of it, which the employer may exercise respecting the manner in which the service is to be performed and the means to be employed in its accomplishment as well as the results to be obtained." Porter, 8 Employee Benefits Cas. at 1378 (quoting Reed v. Commissioner, 13 B.T.A. 513 (1928), rev'd, 34 F.2d 263 (3d Cir.1929), rev'd, 281 U.S. 699, 50 S.Ct. 352, 74 L.Ed. 1125 (1930)).
[T]he employer-employee relationship exists when the person for whom the work is done has the right to control and direct the work, not only as to the result accomplished by the work, but also as to the details and means by which that result is accomplished, and that it is the right and not the exercise of control which is the determining element.
Wardle, 627 F.2d at 824 (quoting NLRB v. Phoenix Mutual Life Insurance Co., 167 F.2d 983, 986 (7th Cir.), cert. denied, 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395 (1948)). In making this determination, a court must consider all factors that affect the employment relationship.
[T]here is no shorthand formula or magic phrase that can be applied to find an answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles.
Wardle, 627 F.2d at 825 (quoting NLRB v. United Insurance Co., 390 U.S. 254, 258, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968)).
Under the above common-law principles, plaintiff Stanley Waxman could not be regarded as defendants' "employee." Defendants had no right of control over, and in actuality did not exercise control over, Waxman's activities. All parties regarded Waxman as an independent contractor, and the proof revealed that this characterization was proper as a matter of law. Waxman worked with the Hardaway defendants on occasion to arrange financing for certain business ventures, but defendants did not direct Waxman's activities respecting the manner in which he arranged this financing. Under these circumstances, and in light of the totality of the circumstances surrounding Waxman's working relationship with defendants, the Court must conclude that under the common-law definition of "employee," Waxman was not covered by ERISA.
Other courts have adopted a definition of "employee" that is more closely tailored to the purposes of ERISA. See Darden v. Nationwide Mutual Insurance Co., 796 F.2d 701, 706-7 (4th Cir.1986); Wolcott v. Nationwide Mutual Insurance Co., 664 F.Supp. 1533, 1536-37 (S.D.Ohio 1987). The Supreme Court, in defining "employee" in other areas of law, twice has recognized that the definition of "employee" should be tailored to the purposes of the *592 statute being construed. United States v. Silk, 331 U.S. 704, 713, 67 S.Ct. 1463, 1468, 91 L.Ed.2d 1757 (1947) (defining "employee" for the purposes of the Social Security Act); NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) (defining "employee" for the purposes of the National Labor Relations Act). The importance of these decisions was recently addressed by the Fourth Circuit:
In both cases, the Court rejected the argument that the term "employee" as used in federal statutes should be interpreted in accordance with the common-law standard. The Court pointed out that the common-law test, which emphasizes the elements of supervision and control, was developed for the purpose of determining whether the extent of one person's control over the actions of another was sufficient to justify the imposition of vicarious liability on the controlling person for the wrongful acts of the person subject to control. Silk, 331 U.S. at 713, 67 S.Ct. at 1468; Hearst, 322 U.S. at 129, 64 S.Ct. at 859. Instead, the Court explained, the content of the term "employee" in the context of a particular federal statute is "to be construed `in the light of the mischief to be corrected and the end to be attained.'" Silk, 331 U.S. at 713, 67 S.Ct. at 1468 (quoting Hearst, 322 U.S. at 124, 64 S.Ct. at 857). In interpreting statutory language so as to define the class of persons protected by the statute, a court must take as its "primary consideration" whether the inclusion of the disputed category of persons would effectuate the "declared policy and purposes" of the statute. Silk, 331 U.S. at 713, 67 S.Ct. at 1468; Hearst, 322 U.S. at 131-32, 64 S.Ct. at 860-61.
Darden, 796 F.2d at 706. Thus, under this line of reasoning, the Court must consider whether plaintiff Stanley Waxman was within the class of persons whom ERISA was designed to protect.
In making this determination, the Court applies the standard articulated by the Fourth Circuit in Darden, except that inasmuch as Darden involved a claim for pension benefits, the standard is modified to apply to health benefits. Thus, the pertinent standard is as follows:
First, did the sponsor of the health benefit plan take some action that created a reasonable expectation on the part of the individual claiming benefits that benefits would be paid to him in the future.
Second, did the individual claiming benefits rely on that expectation by remaining for a substantial period of time in the sponsor's service and by foregoing other significant means of providing for his medical needs.
Third, did the individual claiming benefits lack sufficient economic bargaining power to obtain contractual rights to nonforfeitable benefits.
See id. at 707.
Applying the standard to plaintiff Stanley Waxman, the Court finds that Waxman's limited relationship with Hardaway Construction Company precludes a finding that Waxman relied on an expectation that he would be receiving health benefits by remaining in defendants service for a substantial period of time. Assuming arguendo that Waxman was in defendants' service, this service was not for a substantial period of time, but at best, was sporadic and arose in relation to financing for particular real estate ventures. As a result, the second prong of the test articulated in Darden plainly is not satisfied and the Court concludes that plaintiff Stanley Waxman also was not an "employee" for purposes of ERISA under the above standard.
The Court, having determined that plaintiff is not an "employee" under either of the two standards enunciated above, must conclude that it lacks subject matter jurisdiction to adjudicate this matter. In making this finding, the Court does not find that the above standards both must be applied in all future cases.
III. SUMMARY
Plaintiffs in this lawsuit assert a claim for medical and hospitalization coverage under a plan formulated and administered by defendants. Plaintiffs bring their claim pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. *593 ("ERISA"). This Court has subject matter jurisdiction to hear such a claim under ERISA against defendants only if plaintiff Stanley Waxman was one of defendants' employees. In this Memorandum, the Court considers the various definitions of "employee" used by other courts and by Congress in drafting ERISA and concludes that Waxman was not one of defendants' employees for purposes of ERISA. As a result, the Court DISMISSES this lawsuit for lack of subject matter jurisdiction.
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397 F.2d 1020
Application of James M. DENNY and Sven A. Carlsson.
Patent Appeal No. 7998.
United States Court of Customs and Patent Appeals.
June 27, 1968.
Harness, Dickey & Pierce, Detroit, Mich. (E. R. Casselman, Detroit, Mich., of counsel) for appellants.
Joseph Schimmel, Washington, D. C. (S. Wm. Cochran, Washington, D. C., of counsel) for the Commissioner of Patents.
Before WORLEY, Chief Judge, and RICH, SMITH and ALMOND, Judges.
RICH, Judge.
1
This appeal is from a decision of the Patent Office Board of Appeals1 affirming the examiner's final rejection of claims 20 and 21 in appellants' application serial No. 258,813, filed February 15, 1963, entitled "Building Construction." Claims 13 and 15, the only other claims in the case, have been allowed.
2
The invention is a building wall construction in which inner and outer skin panels of metal or other materials are held together by metal studs, the cleats of which interfit with flanges on the edges of the panels.
3
The panels are relatively narrow, 5" to 8", preferably made of sheet aluminum, have inwardly turned longitudinal edge flanges and are held together with coextensive generally C-shaped cleats. A pair of cleats, to connect a pair of outer panels and a pair of inner panels, are connected by a metal web which determines the spacing between the inner and outer walls, the space later being filled with some insulating material, concrete, or the like.
4
The crux of the invention is said to lie in the fact that the cleats extend along the entire length of the panels so that the cleats help to bear the load of the roof. Claim 20 gives an idea of the nature of the invention and reads as follows:
5
20. A building construction of the type having
6
a foundation,
7
an upright wall structure
8
supported by said foundation, and a roof on and supported by load bearing parts of said wall structure, said wall structure comprising
9
a plurality of skin panels
10
extending the full height of the wall,
11
having
12
reversely bent longitudinal edge portions
13
arranged in edgewise butting relation forming spaced inner and outer wall portions with the joints between the outer wall panels being opposite corresponding joints between inner wall panels,
14
studs
15
of generally I-shaped cross-sectional configuration adapted to hold said butting panels together and to opposite corresponding butting panels, said studs including
16
spaced inner and outer cleats each including
17
a medial flange interconnected with a pair of opposed channel members, said flange and channel members extending the full wall height,
18
said channel members
19
interlocking said reversely bent panel edge portions extending laterally of said medial flange from one edge thereof and connected thereto,
20
rigid web members
21
interconnecting the medial flanges of the inner and outer cleats at opposed joints,
22
means
23
between said roof structure and said walls spanning the inner and outer wall portion and extending over a plurality of studs,
24
said last-mentioned means carrying said roof structure and bearing endwise on said walls,
25
whereby to transfer the roof load jointly through said studs and said panels at said joints to said foundation.
The following references were relied on:
26
Schwartz 2,815,832 Dec. 10, 1957
Brown (British) 414,677 Aug. 7, 1934
27
Brown discloses a wall construction generally similar to appellants' except that the studs which support the panels are of a different design. Schwartz discloses studs made, as appellants' are, of cleats and a web.
28
The examiner and board agreed that it would be obvious under 35 U.S.C. § 103 to change the design of the studs in Brown's structure to be like those of Schwartz. Appellants do not dispute this aspect of the rejection. Appellants argue only that the structure thus created would not meet their claims. Appellants contend that the crucial facet of their invention, the extension of the cleats along the entire length of the wall panels, is lacking in Brown and, of course, not made obvious by Schwartz.
29
The issue before us, then, is limited to whether Brown discloses cleats which share the load-bearing with the panels, i.e., whether the Brown cleats extend the length of the panels.
30
The drawing in the Brown patent is unclear. The board, however, pointed to the following passages from the Brown specification to support its view that the cleats are coextensive with the panels:
31
According to my present invention, I construct the walls and interior partitions of the building of airtight hollow vertical panels each comprising two lengths of sheet metal forming face members flanged and internally lipped along their longer vertical edges, said face members being spaced and maintained parallel by flanged sheet metal transverse members of corresponding length.
32
* * * * * *
33
A wall partition or door construction in accordance with my invention comprises sets of standardized sheet metal elements assembled to form abutting cavity panels each set comprising a pair of face members inwardly flanged along their longitudinal margins and maintained, spaced and in parallel relationship by interposed perpendicular interlocking members which carry C-shaped strips engaging with, and throughout the length of, inturned lips on the abutting flanges of contiguous face members, said interlocking connections lying wholly within said panels.
34
* * * * * *
35
Referring to the said drawings, in the example therein illustrated, the exterior walls are constructed of vertical airtight cavity panels each comprising two lengths of sheet metal forming face members a, a1 the vertical edges of which are flanged at b, b1 and internally lipped at c, c1, said face members being spaced and maintained parallel by sheet metal end members d of corresponding length, the vertical edges of which are flanged at e. * * The strips f, f1 serve to seal and also to connect abutting panels together being adapted to engage the lips c, c1throughout the length of the same.
36
* * * * * *
37
I claim * * *: —
38
1. A wall, partition or door construction comprising sets of standardized sheet metal elements assembled to form abutting cavity panels each set comprising a pair of face members inwardly flanged along their longitudinal margins and maintained spaced and in parallel relationship by interposed perpendicular interlocking members which carry C-shaped strips engaging with, and throughout the length of inturned lips on the abutting flanges of contiguous face members, said interlocking connections lying wholly within said panels. [Emphasis added.]
39
Appellants argue, in their turn, that nothing quoted necessarily requires the conclusion reached by the board. "A corresponding length," appellants urge, may mean no more than a fit length or a suitable length. "Flanged along their longitudinal margins," in appellants' view, may very well mean intermittently flanged and so drain the board's meaning from "throughout the length of * * * inturned lips in the abutting flanges."
40
The question, of course, is whether there is a substantial basis for the board's finding of fact. In re Kunzmann, 326 F.2d 424, 51 CCPA 927 (1964). It seems clear to us that there is. The reference is valid for what it fairly conveys to one of ordinary skill in the art. In re Aller, 220 F.2d 454, 42 CCPA 824 (1955). We think a fair reading of the quoted passages leads to the board's conclusion.
41
Appellants also argue that Brown's provision for a bituminous seal atop his panels would be ineffective or impractical if the cleats extend the full length of the panels. The solicitor replies that it would be quite effective and practical too. Further, in the solicitor's opinion, it strains credulity to suppose that a professional builder would do other than extend the cleats.
42
Appellants' argument which in the end comes to a bare assertion of impracticality,2 does not detract from the support the evidence of record provides for the board's conclusion. The decision of the board, therefore, is affirmed.
43
Affirmed.
Notes:
1
Consisting of Keely, Examiner-in-Chief, and Andrews and Bendett, Acting Examiners-in-Chief, opinion by Bendett
2
Brown discloses, at the top of his panels, a layer of bitumen enclosed between supporting plates and sealing plates. Appellants argue that the supporting plates must overlie the cleats, it being impractical to fit them snugly to the internal form of the wall if the cleats extend to the very top of the panels. Appellants do not elaborate on the impracticality. We, of course, give no weight to the mere allegation
44
SMITH, Judge (dissenting).
45
We face here another in the long series of decisions by a board consisting of but one duly appointed examiner-in-chief. While I remain in the minority on the issue of the legality of the decisions rendered such boards, see In re Wiechert, 370 F.2d 927, 54 CCPA 957 (1967), I feel, for the reasons expressed in my dissent therein, that the continued practice of hearing appeals before boards of appeal so constituted is fundamentally wrong. Not only does this practice seem to have become a continuing practice in the Patent Office, but it is here indulged in apparently without regard to the limitations inherent in the statutory exception in 35 U.S.C. § 7. I say "apparently" because there is no record support here showing a compliance with the terms of the statutory exception in section 7. Even if we adopt the interpretation of this section which was relied upon by the majority in Wiechert the present record is silent either as to the need for the creation of such a board or as to the qualifications of its members who appear on this record simply as "acting examiners-in-chief."
46
Perhaps the time has come for a reappraisal of what now seems to have become an established practice in appointing such boards. The legislative history of 35 U.S.C. § 7, referred to at length in my dissent in Wiechert, shows that the enactment of paragraph 2 of that section was brought about by the need for permitting flexibility in administrative action to meet what was then an emergency situation due to the large number of appeals then pending within the Patent Office. It is clear that the enactment of this provision was to meet a particular situation rather than to establish a new practice,1 the continuation of which in practical effect can be but to arrogate to the Commissioner the authority of the President to appoint and of the Senate to advise and consent as to the appointment of those who are to be examiners-in-chief. The practical effect of the present practice also is to abrogate the statutory limit of 35 U.S.C. § 3 as to the number of examiners-in-chief who may be so appointed.
47
I doubt that Congress intended that 35 U.S.C. § 7 should be productive of such practical results.
Notes:
1
See my dissent inWiechert wherein it is pointed out:
The second paragraph of section 7 is a newer provision and states an exception to the requirements of section 3. It concerns the appointment under special circumstances of acting examiners-in-chief without requiring Presidential appointment and Senate confirmation. Instead, such acting examiners-in-chief are to be designated by the Commissioner under the therein specially stated circumstances. This exception in par. 2 of section 7 thus gives the Commissioner limited authority to name acting examiners-in-chief and limits the use he may make of them in designating particular panels of the Board of Appeals. It becomes necessary, therefore, to examine the history and background of this second paragraph of section 7 to determine whether Congress intended the exception therein stated to take precedence over and change the long standing general plan of independent appellate review we find clearly stated in paragraph 1 of section 7.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-07-00228-CV
§
IN THE INTEREST OF P.L.H., S.R.H., Appeal from the
AND C.H.H., MINOR CHILDREN §
301st Judicial District Court
§
of Dallas County, Texas
§
(TC# 05-04224-T)
§
OPINION
Susan Harriman appeals the trial court’s order granting her ex-husband, Phillip
Harriman’s motion to modify child support. Ms. Harriman presents seven issues for review. In
Issue One, she contends the trial court erred by awarding Mr. Harriman over $32,000 for
overpayment of child support. In Issue Two, Ms. Harriman challenges the judgment awarding
Mr. Harriman attorney’s fees. In Issue Three, she argues the trial court erroneously awarded
Mr. Harriman court costs in addition to attorney’s fees. Issue Four states that the trial court erred
by imposing “death penalty” sanctions against Ms. Harriman during trial. Issues Five and Six
challenge the trial court’s denial of Ms. Harriman’s motion for continuance, and motion to
reopen the evidence. In Issue Seven, Ms. Harriman argues any over-payment of child support by
Mr. Harriman was a debt which was discharged by her 2004 bankruptcy. Affirmed.
Phillip and Susan Harriman were divorced in Oklahoma in July of 2000. The divorce
decree (“the Oklahoma decree”) was entered on August 20, 2001, and filed with the District
Clerk of Tulsa County, Oklahoma on January 7, 2002. The couple had three children during the
marriage, P.L.H., S.R.H., and C.H.H. Ms. Harriman was awarded custody of the children. Mr.
Harriman was ordered to pay Ms. Harriman child support for the care and maintenance of the
children in accordance with the “Oklahoma Child Support Guidelines,” which the decree stated
were to be attached and incorporated by reference. Due to a clerical error, the guidelines were
omitted from the judgment when it was entered.
Beginning in August of 1999, Mr. Harriman’s paychecks were subject to an “Order of
Income Assignment” by the State of Oklahoma whereby his income was garnished up to $1,072
per month in accordance with Oklahoma law. Because the full amount exceeded the Oklahoma
statutory limits for withholding, Mr. Harriman’s actual child support payment was limited to
$981.46 per month.
In February 2004, the parties returned to the Oklahoma District Court for entry of a nunc
pro tunc order (“the 2004 nunc pro tunc”). In the nunc pro tunc judgment, the trial court noted
that the divorce decree did not have a copy of the child support guidelines attached and therefore
did not accurately reflect the judgment. The corrected judgment included the statutory
guidelines, and a child support computation sheet which had been prepared during the original
divorce trial in November of 2000. According to the computation sheet, Mr. Harriman’s child
support obligation was $481.20 per month. The cost of health insurance premiums and child
care was not allocated to either party. The computation sheet lists each parent’s obligation for
those costs as $0. However, the computations did include a statement that Mr. Harriman would
be responsible for 40 percent of the children’s “other medical expenses.”
On March 8, 2005, Mr. Harriman filed his original petition in Dallas County to modify
the terms of the Oklahoma decree. Ms. Harriman responded to Mr. Harriman’s petition on April
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21, 2005 by filing a cross-petition for modification seeking “minimal possession” for Mr.
Harriman and increase in child support.1 On May 3, 2005, the Oklahoma District Court signed
an order, per Ms. Harriman’s request, declining continuing jurisdiction over all issues related to
child support and custody in favor of the Dallas District Court. On June 6, 2006, Ms. Harriman
filed the Oklahoma decree for registration in Texas. In September, Ms. Harriman returned to the
Oklahoma district court for a second nunc pro tunc order (the 2006 nunc pro tunc) further
clarifying the Oklahoma decree. The 2006 nunc pro tunc judgment stated both that the
Oklahoma decree was incomplete, and that the 2004 nunc pro tunc judgment failed to properly
correct the errors in the decree. The 2006 nunc pro tunc stated that the Oklahoma decree was to
be corrected by incorporating the following language:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the
[Oklahoma decree] filed in this matter on January 7, 2002, is hereby corrected
effective January 7, 2002 to reflect the following findings of the Court:
‘That on the [sic] July 2, 2000 the Court finds income for [Ms. Harriman]
is $42,000 annually or $3,500/month and income for [Mr. Harriman] is
$27,452.23 or $2,288.00 per month; the Court orders child support to be
paid by [Mr. Harriman] to [Ms. Harriman] according to the most recent
Oklahoma Child Support Guidelines, and that [Mr. Harriman’s] child
support shall be computed as a proportionate percentage of the combined
gross income of both parents; the Court finds that [Mr. Harriman’s]
proportionate percentage is 40%; the Court finds that child support
obligations owed by [Mr. Harriman] to [Ms. Harriman] include all
obligations covered under Oklahoma statute, and [Mr. Harriman] is
ordered to [Ms. Harriman] child support computed as follows: $481.20
base support plus [Mr. Harriman’s] 40% share of the following: all child
care expenses, actual medical, dental, orthodontic, optometric,
psychological, hospitalization, hospice, prescriptions and any other
physical or mental health expenses of the minor children not reimbursed
by insurance; [Mr. Harriman] is ordered to pay [Ms. Harriman] insurance
premiums paid by [Ms. Harriman] for the benefit of the children; [Mr.
1
Ms. Harriman did not file a petition for enforcement or modification of the Oklahoma
decree in either jurisdiction.
-3-
Harriman] shall reimburse [Ms. Harriman] for his 40% proportionate share
of unreimbursed medical expenses within thirty (30) days of the receipt of
documentation of the expense, as stipulated by statute.’
A bench trial commenced on September 18, 2006. During opening statements, the parties
were able to agree and stipulate that Mr. and Ms. Harriman would be appointed joint managing
conservators of the children, with Ms. Harriman granted the right to establish the children’s
primary residence. Mr. Harriman received the right to possession of the children pursuant to a
standard possession order as provided by the Texas Family Code. Trial proceeded on
Mr. Harriman’s claim that he was owed a credit for child support overpayment and for attorney’s
fees. In support of his overpayment claim, Mr. Harriman introduced evidence indicating that the
Oklahoma decree required him to pay only $481.20 per month. He therefore requested that the
Court issue a declaratory judgment stating that he had overpaid his child support obligation by
$500.26 per month since the date the decree was rendered. He also asked the trial court to
modify his support obligation pursuant to the Texas guidelines and apply a credit of more than
$30,000 to future child support payments. Mr. Harriman’s attorney presented evidence of over
$100,000 in fees for the representation.
Ms. Harriman represented herself at trial. During her presentation, Ms. Harriman argued
that Mr. Harriman had failed to pay his proportionate share of the children’s medical expenses as
required by the Oklahoma decree. However, Ms. Harriman was not able to produce evidence
that the expenses had been submitted to Mr. Harriman for reimbursement within thirty days of
their payment as required by the decree. Due to a pretrial order excluding Ms. Harriman’s
evidence for failure to comply with pretrial orders, she did not present evidence of medical
expenses.
-4-
The trial court entered a modification order on December 6, 2006. The trial court
concluded that it was the only court with continuing exclusive jurisdiction over the case, and
took judicial notice of the Oklahoma District Court’s order declining continuing jurisdiction.
Mr. and Ms. Harriman were appointed joint managing conservators of the children, with the
terms of possession to be governed by the Texas Family Code’s standard possession order.
Ms. Harriman was awarded the right to establish the children’s primary residence. Mr. Harriman
was ordered to pay $727.49 per month to Ms. Harriman for the children’s support. Mr. Harriman
was also ordered to maintain health insurance for all three children. The order also provides that
as of December 2006, Mr. Harriman was entitled to a child support credit in the amount of
$32,016.64 for prior over payment. The court ordered that this credit would be applied to future
support payments as a deduction of $500 per month for sixty four consecutive months.
The trial court awarded Mr. Harriman $50,000 for attorneys fees and costs. The court
also made contingent awards of $10,000 in the case of an unsuccessful appeal, and an additional
$5,000 in the case of a denied petition for review to the Texas Supreme Court. Ms. Harriman
appeals both the trial court’s modification and the attorney’s fee award.
In Issue One, Ms. Harriman asserts that the trial court’s decision to grant Mr. Harriman a
declaratory judgment and award him a credit for overpayment of child support was in error. She
argues that the root of the trial court’s error was in its failure to recognize and enforce the second
Oklahoma nunc pro tunc judgment. Had that order been enforced, Ms. Harriman continues, she
would have been awarded an amount equal to Mr. Harriman’s 40 percent share of the children’s
medical expenses. These medical expenses would have offset some, or all, of Mr. Harriman’s
credit for overpayment, reducing or eliminating the judgment being appealed here. Mr. Harriman
-5-
responds by arguing that the second nunc pro tunc was a “judicial,” rather than “clerical”
correction of the Oklahoma decree, and was therefore void according to the law in either state.
The central inquiry in this issue is the validity of the second nunc pro tunc judgment.
This is a question of law, which we review de novo. See Escobar v. Escobar, 711 S.W.2d 230,
232 (Tex. 1986). Under both Texas and Oklahoma law, a judgment nunc pro tunc may be used
only to correct “clerical,” as opposed to “judicial” errors in a judgment. See Escobar, 711
S.W.2d at 231; Stork v. Stork, 898 P.2d 732, 736-37 (Okl. 1995). According to Oklahoma law,
Nunc pro tunc relief is limited to supplying inadvertent clerical omission and correcting
facial mistakes in recording judicial acts that actually took place. In short, a nunc pro
tunc order can and will place of record what was actually decided by the court but was
incorrectly recorded. The device may neither be invoked as a vehicle to review a
judgment (or to exercise legal errors found in it) nor as a means to enter a different
judgment.
Stork, 898 P.2d at 736-37 [Emphasis in original].
The nunc pro tunc order issued in this case did more than simply correct a clerical
omission or facial mistake in the Oklahoma divorce decree. Here, the Oklahoma Court
attempted to alter the support obligation imposed by the decree rendered in 2000. This was not a
clerical error in how the Oklahoma decree was recorded. Rather, this nunc pro tunc was an
attempt to add and change child support provisions. The Dallas court did not err by failing to
enforce the 2006 nunc pro tunc, as it constituted an impermissible judicial correction, and was
therefore void as a matter of Oklahoma law. Issue One is overruled.
In Issue Two, Ms. Harriman argues the trial court erred by granting Mr. Harriman’s
request for attorney’s fees. This argument is founded on her conclusion, in Issue One, that
Mr. Harriman had no right to declaratory relief. Given our disposition of Issue One, we also
-6-
overrule Issue Two.
Issue Three states the trial court erred by awarding Mr. Harriman court costs pursuant to
Rule 131 of the Texas Rules of Civil Procedure. The discussion of this issue simply recites the
trial court’s comments during a hearing on Mr. Harriman’s motion for entry of judgment, and
concludes that the judgment does not agree with the court’s statement that its $50,000 award was
inclusive of attorney’s fees and costs. The brief fails to offer any legal analysis or citation to
legal authority.
It is the appellant’s burden to properly raise and discuss the issues presented for review.
See TEX .R.APP.P. 38.1(f); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.--El Paso
2007, pet. stricken). The brief must contain a clear and concise argument, including appropriate
citations to legal authority and the record. See TEX .R.APP .P. 38.1(h). This requirement is not
met by merely uttering conclusory statements without legal citation. Sweed v. City of El Paso,
195 S.W.3d 784, 786 (Tex.App.--El Paso 2006, no pet.). Failure to provide substantive analysis
results in wavier of the issue presented. See Martinez, 218 S.W.3d at 844.
Because Ms. Harriman’s briefing on Issue Three does not comply with Texas Rule of
Appellate Procedure 38.1, the issue is waived.
Issue Four challenges the trial court’s exclusion of Ms. Harriman’s trial exhibits.
Ms. Harriman argues that the trial court’s ruling was an unjust sanction, and therefore constituted
an abuse of discretion. She concludes that an improper judgment was rendered because she was
not permitted to offer her exhibits into evidence at trial.
On May 31, 2006, the trial court entered a supplemental pretrial order requiring each
party to deliver to the other, “all exhibits to be introduced at trial of this case” by August 28.
-7-
During a pretrial hearing on September 8, Mr. Harriman’s attorney moved to exclude all of
Ms. Harriman’s trial exhibits on the ground that she failed to comply with the court’s pretrial
order. According to Mr. Harriman’s attorney, all Ms. Harriman had tendered was a laundry list
of documents she intended to introduce at trial. Ms. Harriman responded by insisting that she
had attempted to comply with the court’s order but that delivery had been refused by
Mr. Harriman’s lawyer. When the court asked Ms. Harriman if she had any evidence that she
attempted to deliver the documents as she claimed, she was not able to produce additional
evidence. The trial court ultimately excluded all of Ms. Harriman’s exhibits for failure to comply
with the discovery order.
A trial court’s ruling on a motion for discovery sanctions is reviewed for an abuse of
discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The test for an abuse of
discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate
case for the trial court’s action. Id. at 838-39. Instead the reviewing court must ask “whether the
court acted without reference to any guiding rules and principles.” Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The ruling should only be reversed if the
record demonstrates the trial court acted arbitrarily or unreasonably. Cire, 134 S.W.3d at 839.
A trial court abuses its discretion by imposing an unjust sanction. Aguilar v. Morales,
162 S.W.3d 825, 831 (Tex.App.--El Paso 2005, pet. denied), citing TransAmerican Natural Gas
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). A sanction is just if: (1) there is a direct
nexus between the offensive conduct, the offender and the sanction imposed; and (2) the sanction
is not excessive. See Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex. 2003). Ms. Harriman’s
argument is limited to her assertion that the trial court’s ruling constituted an excessive sanction.
-8-
Her brief does not address the nexus, or lack thereof, between her failure to comply with the trial
court’s order and the exclusion of her trial exhibits. Therefore it is not necessary to review the
first prong of the TransAmerican analysis.
A discovery sanction must not be more severe than is necessary to satisfy its legitimate
purposes, which include securing compliance with discovery rules, deterring other litigants from
similar misconduct, and punishing violators. Mayer, 104 S.W.3d at 882. The trial court must
also consider whether other, less stringent sanctions would be effective to remedy the offensive
conduct. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).
Our rules of civil procedure provide specific actions a trial court may take after
determining that a party is abusing the discovery process. Pursuant to Rule 215.3, the court may,
after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3),
(4), (5), and (8). See TEX .R.CIV .P. 215.3. The trial court’s options include prohibiting a party
from introducing designated matters in evidence. See TEX .R.CIV .P. 215.2(b)(4).
The record shows that Ms. Harriman had been sanctioned for failure to comply with
discovery requests and orders several times prior to the September 8 hearing. On June 7, 2005,
the trial court granted a motion for sanctions due to Ms. Harriman’s failure to respond to
Mr. Harriman’s request for production, and her failure to appear for deposition on three different
occasions. On September 15, 2005, the trial court entered its second sanctions order, again
ordering Ms. Harriman to appear for deposition, and ordering her to pay $1,200 in attorney’s fees
and costs to Mr. Harriman’s attorney. The following January, the trial court entered an additional
order regarding Ms. Harriman’s response to Mr. Harriman’s request for production, specifically
ordering her to reorganize her production response so that the documents corresponded to
-9-
Mr. Harriman’s request. The court also ordered Ms. Harriman to produce the children’s medical
records and contact information for health care providers as requested by Mr. Harriman. Finally,
during the September 8 hearing, the trial court specifically inquired whether Ms. Harriman had
any evidence to support her assertion that delivery was refused by Mr. Harriman’s attorney. She
was not able to do so. Her argument was refuted by Mr. Harriman’s attorney, who represented to
the court that delivery was never attempted, and would not have been refused by his office.
Based on her history of discovery abuse, and failure to comply with the trial court’s
orders, the court’s decision to exclude Ms. Harriman’s trial exhibits was not excessive. The
record demonstrates that the trial court considered, and imposed, lesser sanctions when earlier
discovery abuses arose, without success. Accordingly, the court’s decision to impose a Rule
215.2(b) sanction was not an abuse of discretion. Issue Four is overruled.
In Issue Five, Ms. Harriman argues the trial court erred by denying her motion for
continuance. We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See Serrano v. Ryan’s Crossing Apartments, 241 S.W.3d 560, 564 (Tex.App.--
El Paso 2007, pet. denied).
A motion for continuance must be in writing, state the specific facts supporting the
motion, and be verified or supported by an affidavit. See Serrano, 241 S.W.3d at 564. If the
motion is not verified or supported by an affidavit, the reviewing court must presume the trial
court did not abuse its discretion by denying the motion. See Serrano, 241 S.W.3d at 564.
Verification is “[a] formal declaration made in the presence of an authorized officer, such as a
notary public, by which one swears to the truth of the statements in the documents.” Andrews v.
Stanton, 198 S.W.3d 4, 8 (Tex.App.--El Paso 2006, no pet.).
-10-
The trial court signed an order permitting Ms. Harriman’s attorney to withdraw from the
case on June 21, 2006. Ms. Harriman filed a pro se motion for continuance on July 14, 2006.
At that time, the case was set for trial on September 18, 2006. The motion represented to the
court that Ms. Harriman had only just received her case file from her attorney, that she was
pursuing additional orders in the Oklahoma District Court which would affect Mr. Harriman’s
claim for child support overpayment, and that the psychologist who had been ordered to
investigate the family’s relationships would require at least until January 2007 to complete her
review.
The motion was heard in the trial court on August 22, 2006. Mr. Harriman’s attorney
objected on the basis that the motion failed to comply with the rules of civil procedure as it was
not verified and did not include an affidavit. The court denied the motion on the record during
the hearing.
Ms. Harriman admits that her motion failed to comply with the rules. However, she
argues that the factual circumstances surrounding the motion are sufficient to overcome the
presumption that the trial court’s ruling was not an abuse of discretion. Specifically, she
contends that her lack of an attorney three months before trial put her at a disadvantage which led
to the court’s exclusion of her trial exhibits, and that the continuance was necessary to allow the
Oklahoma Court to conclude and transcribe its proceedings for use in the Texas case.
The issue of her representation was not raised in Ms. Harriman’s motion, nor did she
express concern over finding a replacement attorney to the court at the August hearing. As we
discussed above, Ms. Harriman’s trial exhibits were struck due to her failure to comply with a
discovery order which the trial court entered approximately four months prior to trial. In
-11-
addition, there was no necessity for the Dallas Court to postpone the case further to wait for
rulings on Ms. Harriman’s Oklahoma motions. Therefore, Ms. Harriman has failed to overcome
the presumption that the trial court’s ruling was an abuse of discretion, and Issue Five is
overruled.
Issue Six addresses the trial court’s denial of Ms. Harriman’s motion to reopen the
evidence. Ms. Harriman argues the court erred by refusing to consider her offer of proof, or bill
of exceptions, which she asserts contain the evidence she would have offered at trial if she had
been permitted to introduce her exhibits and witness testimony.
We review the denial of a motion to reopen the evidence under an abuse of discretion
standard. Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex.App.--Fort Worth 2006, pet.
denied). Texas Rule of Civil Procedure 270 provides that a trial court may permit additional
evidence to be offered at any time when it clearly appears necessary to the administration of
justice. TEX .R.CIV .P. 270. Rule 270 allows, but does not require, a court to permit additional
evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.--Corpus Christi 2001, no pet.). When
considering a motion to reopen, the trial court considers whether: (1) the moving party showed
due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of
such evidence will cause undue delay; and (4) granting the motion will cause injustice.
Hernandez, 201 S.W.3d at 779. The decision to reopen is within the trial court’s sound
discretion. Id.
The trial court’s refusal to allow Ms. Harriman to introduce evidence at trial was due to
Ms. Harriman’s own failure to comply with discovery orders. In addition, it is important to note
that Ms. Harriman did not have claims for affirmative relief pending at the time of trial. She was
-12-
before the court solely as the respondent in the modification proceeding, and so had no claim
which she was prevented from establishing with evidence. Under these circumstances, the
interests of justice did not require the court to provide Ms. Harriman with a second chance to
present her case. See id. Issue Six is overruled.
In Ms. Harriman’s Seventh Issue, she argues that to the extent Mr. Harriman did pay
excess child support between 2001 and July 2004, the “debt” was discharged when she was
discharged from bankruptcy. Because Ms. Harriman failed to plead this defense in the trial court
as required by Rule 94 of the Texas Rules of Civil Procedure, we need not address this issue. See
TEX .R.CIV .P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex.App.--Dallas 2007, no pet.). Issue
Seven is overruled.
Having overruled all of Appellant’s issues, we affirm the trial court’s judgment.
February 24, 2010
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Rivera, JJ.
-13-
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787 F.2d 507
Fidel A. PARRA, Plaintiff-Appellee,v.The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY,Defendant-Appellant.
No. 84-2809.
United States Court of Appeals,Tenth Circuit.
March 21, 1986.
Nicholas R. Gentry of Johnson and Lanphere, P.C., Albuquerque, N.M., for defendant-appellant.
O.R. Adams, Jr., Albuquerque, N.M., for plaintiff-appellee.
Before MOORE and SETH, Circuit Judges, and BROWN, District Judge*.
SETH, Circuit Judge.
1
This is an appeal from a judgment for plaintiff in a personal injury suit brought under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. Sec. 51 et seq. The jury returned a verdict for the plaintiff in the amount of $233,764 plus medical costs finding the defendant to have been negligent and plaintiff free of any negligence. The defendant appeals asserting that the court erred in its instructions to the jury pertaining to contributory negligence and that there was no evidence of lost earning capacity.
2
Plaintiff-appellee, Fidel Parra, had been employed by defendant-appellant, Atchison, Topeka and Santa Fe Railway Company (AT & SF), as a trackman from 1977 until his injury on November 4, 1982. The position of a trackman entailed heavy physical labor in connection with the maintenance of the tracks. Mr. Parra could not read or write English and spoke Spanish while on the job. He had a third grade education in Mexico. The crew on which Mr. Parra worked was replacing railroad ties in the yards at Albuquerque, New Mexico on the day of the accident. Although the AT & SF had a machine to perform the task, on that day Mr. Parra and another man were assigned to drag the replaced ties out of the way. These ties were approximately 16 feet long and weighed about 300 pounds. While performing this task, Mr. Parra slipped and injured his back. He was treated by Dr. O.C. Mitchell who also testified at trial.
3
The substance of Dr. Mitchell's testimony was that Mr. Parra injured an unstable part of his back in that a disc had slipped at the fifth lumbar vertebrae and had a break in it. The doctor performed a fusion of the vertebrae. He testified that Mr. Parra would not be able to return to his job as a trackman. Dr. Mitchell also testified that although the injury was caused by heavy lifting, Mr. Parra had a congenital back disorder known as Grade I spondylolisthesis which is the previously mentioned unstable back. It was also his testimony that although the injury of November 4, 1982 aggravated the condition and necessitated the treatment, the preexisting back condition made the injury more likely and Mr. Parra would have been disqualified from heavy labor had the pre-injury condition been known. There was no evidence at trial that either Mr. Parra or the railroad knew of his congenital back condition or should have known.
4
The appellant introduced evidence that Mr. Parra was provided with a Spanish language copy of the company Safety Rule Book which contained among other rules the following, Rule 191:
5
"Do not lift more than can be safely handled. When necessary, ask for help to lift heavy loads and avoid jerking or lifting from awkward positions. When lifting, have secure footing, bend knees and keep back straight, take firm hold of object and slowly straighten legs."
6
The case was submitted to the jury on the question of appellant's negligence in failing to instruct Mr. Parra on the safe way in which to handle the task and failing to authorize the proper number of workers or the proper and available equipment to move the railroad ties. Appellant alleged contributory negligence and sought an instruction highlighting Mr. Parra's asserted violation of Rule 191. Appellant also objected to the trial court's instruction on loss of future earnings.
7
Appellant asserts that the trial court erred in refusing to instruct the jury on the significance of appellant's failure to comply with company Safety Rule 191. Appellant's requested jury instruction read as follows:
8
"If you find that plaintiff violated an applicable safety rule of defendant and that this violation contributed in whole or in part to the accident, you may consider this violation as evidence of negligence on the part of the plaintiff and diminish any damages awarded him in the manner explained to you elsewhere in these instructions."
9
Although the court did give an instruction concerning the effect of any negligence on the part of Mr. Parra, the trial court declined to give this or any other instruction dealing specifically with the alleged violation of Safety Rule 191 and we agree with the trial court's judgment on this matter. The safety rule at issue is very different from the more specific and objective safety rules for which a violation would support an instruction or warrant a finding of negligence per se similar to those found in the cases quoted by appellant. Northern Pacific Railway v. Mely, 219 F.2d 199 (9th Cir.); Atchison, Topeka & Santa Fe Railway Co. v. Ballard, 108 F.2d 768 (5th Cir.).
10
The critical inquiry in such cases is whether the rule itself is of a specific nature allowing plaintiff's actions to be evaluated objectively. In this instance, Rule 191 tells Mr. Parra that he should not lift more than can be lifted "safely." This is a good admonition but is nothing more than that and it provides no standard which a jury could apply. The evidence only affords defendant an instruction on the law of plaintiff's negligence as was given in this instance. The trial court properly denied the requested instruction.
11
The appellant contends that the trial court committed reversible error by instructing the jury on the plaintiff's loss of future earnings since there was uncontroverted evidence that plaintiff's earning capacity was not diminished as a result of his injury and there was no expert testimony.
12
At trial, there was substantial evidence presented that Mr. Parra had performed heavy labor throughout his life and that he had worked for the AT & SF as a trackman for five and one-half years prior to his accident. There was also testimony that Mr. Parra is currently unable to return to his previous job because his work and physical activity is severely limited and he cannot perform any heavy lifting. All of the foregoing is certainly admissible, however, Mr. Parra's back condition and the injury were complicated and not susceptible to observation by the jury. The injuries and their impact on earnings capacity can only be established by expert medical testimony. Franklin v. Shelton, 250 F.2d 92, 97 (10th Cir.). Where the injury is obscure, as here, a loss of future earnings capacity must be established by expert medical testimony in order to avoid pure speculation on the part of the jury. Curtis v. General Motors Corp., 649 F.2d 808, 813 (10th Cir.); Rheaume v. Patterson, 289 F.2d 611, 613 (2d Cir.).
13
An examination of the plaintiff's own expert medical testimony here would refute his claim for loss of future earnings. The only expert medical testimony presented by plaintiff was that of his own physician, Dr. O.C. Mitchell. The essence of Dr. Mitchell's testimony was that Mr. Parra suffered from a congenital back disorder which made him more susceptible to lower back injury. Dr. Mitchell's testimony also was that Mr. Parra's unstable back would have disqualified him from work as a heavy laborer had it been detected. As we earlier stated, expert medical testimony is necessary to establish that a loss of future earnings capacity was caused by such a non-obvious injury; plaintiff's expert testimony refutes the causal connection between his injury and his diminished capacity for heavy labor. In light of Dr. Mitchell's further opinion that Mr. Parra's back was more stable after surgery than prior to his accident, it seems improper for plaintiff to be compensated for future wages from heavy labor for which his preexisting congenital back disorder had already disqualified him.
14
For these reasons we must conclude that the trial court erred in instructing the jury on the value of future earnings from heavy labor as an element of plaintiff's damages. Consequently, the case is remanded for a determination of damages not to include future earnings.
15
We have also considered appellant's contention that the trial court failed to instruct the jury on a single standard of causation for both defendant's negligence and plaintiff's contributory negligence and find it without substance. The trial court's definition of causation for the jury was the same for both plaintiff's and defendant's negligence and was correctly stated. It should be noted that the jury's determination of appellant's liability is undisturbed.
16
Because the parties have fully litigated the issue of liability and the only trial error committed was the inclusion of future earnings lost in the plaintiff's recovery, we remand this case for a new trial on damages only and except for the element of future earnings.
17
IT IS SO ORDERED.
*
Honorable Wesley E. Brown, United States District Judge for the District of Kansas, sitting by designation
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6637
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWIGHT JEFFERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle Dis-
trict of North Carolina, at Durham. Frank W. Bullock, Jr., Chief
District Judge. (CR-92-155-D, CA-97-404-1)
Submitted: November 10, 1998 Decided: December 15, 1998
Before ERVIN and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Dwight Jeffers, Appellant Pro Se. Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dwight Jeffers seeks to appeal the district court’s order
denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998). We have reviewed the record and the district court’s
opinion accepting the recommendation of the magistrate judge. As
the district court held, Jeffers was not prejudiced by counsel’s
assertedly erroneous advice. Accordingly, we deny a certificate of
appealability and dismiss the appeal on the reasoning of the
district court. United States v. Jeffers, Nos. CR-92-155-D; CA-97-
404-1 (M.D.N.C. Mar. 26, 1998). We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
2
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258 F.3d 893 (8th Cir. 2001)
William R. Jones, Appellant,v.Paul Delo, Superintendent, Potosi Correctional Center, Appellee.
No. 99-2276WM
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: November 13, 2000Filed: July 31, 2001
On Appeal from the United States District Court for the Western District of Missouri.
Before RICHARD S. ARNOLD, BEAM, and BYE, Circuit Judges.
RICHARD S. ARNOLD, Circuit Judge.
1
William R. Jones, Jr., a Missouri inmate sentenced to death for first-degree murder, appeals from the District Court's1 denial of his second amended petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. He argues that he received constitutionally ineffective assistance of trial counsel because of counsel's failure (1) to investigate and present evidence of mental disorder and organic brain damage at the guilt phase of the trial; and (2) to investigate and present mitigating evidence at the penalty phase of the trial. He also argues that his rights were violated by the District Court's denial of his request for an evidentiary hearing. After full consideration, we reject these claims. There are respects in which trial counsel can justly be criticized, but after taking into account what the evidence would have looked like without these deficiencies, we see no reasonable probability that the verdict would have been different.
I. Trial
A. Guilt Phase
2
This case involves the January 16, 1986, shooting death of Stanley Albert. The State presented the following evidence at trial, which took place on November 6 through 10, 1986. Mr. Jones, the petitioner, was a bisexual who lived in the Kansas City, Missouri, area, where he worked as a strip dancer in nightclubs. He was seen with Mr. Albert by the latter's daughter in the fall of 1985 in Mr. Albert's 1984 white Camaro, a car the victim was very proud of. Petitioner was 21 years old at the time and Mr. Albert was in his fifties. Beginning in December 1985, petitioner told several people, including his male roommate and lover, Charles Wesley Thomas, that his father was going to help him purchase a white Camaro. Petitioner's father had helped him purchase cars in the past and had discussed helping him buy another one, but had had no conversation with him about a white Camaro.
3
On or about January 10, 1986, petitioner asked Karla Wright, who had been his girlfriend for several years, what she would think of him if he killed someone. On January 13, petitioner told another woman friend, with whom he planned to go to Indianapolis for a dancing job, that he would drive because he was going to get a white Camaro. On Wednesday, January 15, 1986, petitioner told Mr. Thomas that he would be getting his car the next day at 4:30 p.m. On January 16, at 4:30 p.m., Mr. Albert pulled up in front of petitioner's apartment in the Camaro. Petitioner borrowed a blanket from Mr. Thomas, and Mr. Thomas saw him leave with Mr. Albert in the car.
4
At about 8:00 p.m. that evening, petitioner called Mr. Thomas, told him he was in Independence, Missouri, drinking and driving around in his new car, and offered him a ride. Petitioner picked Mr. Thomas up in the Camaro at about 9:00 p.m. During the ride, petitioner crushed a pair of sunglasses that were lying on the seat of the car, saying the owner would not need them anymore. He left the apartment early the next morning, purchased a shovel using Mr. Thomas's credit card (without permission), and returned in the afternoon. He had a scratch on his face and told Mr. Thomas he had been at a park and got scratched by a tree branch. He complained to Mr. Thomas that he was tired, saying, "well, it gets pretty tiring when you drag a dead man through the woods." Petitioner had with him two license plates and told Mr. Thomas he had to give them back to the man who owned the car, and that his father was going to give him plates until his own came in. In fact, Petitioner's father was not involved in any way in acquiring the white Camaro, and the Kansas plates later found on the Camaro had been stolen.
5
On Saturday, January 18, at about 4:00 p.m., petitioner left his apartment with his woman friend in the Camaro to drive to Indianapolis. At about 5:30 p.m. that evening, the car was stopped for speeding on a highway outside Kansas City by a state highway patrol officer. As the officer approached, petitioner sped away and a high-speed chase ensued. The officer got up to 120 miles per hour, but petitioner still kept ahead of him. Eventually, petitioner eluded the officer and abandoned the car. He was arrested three miles away.
6
Mr. Albert did not report to work on Friday, January 17. On March 2, 1986, his body was found in a wooded area in a park near Independence. The medical examiner estimated that he had been dead between two weeks and several months. The body was wrapped in a blanket identical in appearance to the one petitioner had borrowed from his roommate. Mr. Albert had been shot five times in the lower torso and chest. Three of the bullets had been fired from the same .22 revolver, and the other two could have been.
7
On April 1, 1986, petitioner was charged with stealing a motor vehicle, first-degree murder for the murder of Mr. Albert, and armed criminal action. In May, bullets of the same common type that had killed Mr. Albert, as well as two license plates that had been on Mr. Albert's car, and Mr. Albert's watch were found in petitioner's apartment. The watch and bullets were hidden between some paneling and a wall, underneath one end of a bathtub. The State proceeded only on the first-degree murder count.
8
At his first meeting with one of his two attorneys, who had been retained by his mother, petitioner gave the attorney a hand-written letter recounting his version of events on January 16, 1986. He wrote that Mr. Albert had asked him to go on a picnic on that day and that petitioner borrowed a blanket from his roommate to take along. Petitioner had a gun with him he always carried it because he had previously been badly beaten up. Mr. Albert and petitioner went to a secluded area in a park, drinking some beer and wine on the way, and, after they ate, Mr. Albert made an explicit sexual advance. Petitioner called him a pervert and turned to leave, whereupon Mr. Albert grabbed petitioner by the arm.
9
Petitioner wrote further that when he pulled away from Mr. Albert he lost his balance and must have fallen. The next thing he remembered, he was sitting in the car at a nearby convenience store, partially unclothed. He went back to the park and found Mr. Albert's body in a ditch. He returned to his apartment in Mr. Albert's car. He was in pain, there was blood on his anus, and he realized he had been raped. He felt there was no one he could tell about it and was afraid his parents would find out. He did tell his sister about the rape when she visited him in jail. Petitioner ended the letter by stating that he kept having flashbacks about "bright flames that would come from a gun and the noise it made."
10
Petitioner did not testify at the guilt phase of the trial. His defense consisted of pointing out that the State's case was circumstantial. The jury convicted petitioner of first-degree murder, which under Missouri law required a finding that he "knowingly cause[d] the death of another person after deliberation upon the matter." Mo. Rev. Stat. § 565.020. "Deliberation" is defined as "cool reflection for any length of time no matter how brief." Id. (3).
B. Penalty Phase
11
The case proceeded to the penalty phase on November 13, 1986. The State presented evidence of petitioner's guilty plea to a charge of stealing over $150 for a January 1984 burglary of Ms. Wright's parents' home, and his guilty plea to a charge of stealing under $150 in February 1984. The State presented the testimony of Mr. Thomas that when he took petitioner to his family's home in Arkansas for Thanksgiving in 1985, petitioner burglarized a neighbor's house, and the testimony of Ms. Wright regarding the burglary of her parents' home, which occurred after she showed petitioner how to open the safe.
12
Petitioner took the stand and denied that he killed Mr. Albert. According to petitioner's testimony, he first met Stanley Albert at the Liberty Memorial. He struck up a conversation and told Mr. Albert that he jogged there every day. When petitioner first saw Mr. Albert, he was waxing the white Camaro. That same day, petitioner and Mr. Albert went back to petitioner's apartment. Mr. Albert washed his hands and left his watch by the sink. Later, petitioner further testified, on January 16, 1986, Mr. Albert called and talked about the car. He picked petitioner up in the car. He was looking at petitioner "romantically." Mr. Albert indicated that petitioner might help pay for the car with sex. They went to a McDonald's and were in the parking lot there, eating. A friend of Mr. Albert's pulled up in a dark car. They talked. "It looked real serious." Mr. Albert asked petitioner to take his car and drive it over to the apartment and wait there, which he did. After about thirty minutes, he went back to McDonald's, but neither Mr. Albert nor the other man (who had been in a dark car) was there. Petitioner never saw Stanley Albert again, alive or dead. However, he kept the car and was driving it to Indiana with Julie Glidewell when he was arrested for speeding. He had no idea that Stanley Albert was dead. Petitioner also claimed that he stole the money from Ms. Wright's parents with her help so the two of them could run off together. The State did not cross-examine petitioner, and the defense presented no other witnesses on his behalf.
13
The jury found two aggravating circumstances that petitioner murdered Mr. Albert "for the purpose of receiving money or any other thing of monetary value from Albert," and that petitioner murdered Mr. Albert while petitioner "was engaged in the perpetration of or the attempt to perpetrate robbery" and sentenced him to death. The Missouri Supreme Court affirmed the conviction and sentence. State v. Jones, 749 S.W.2d 356 (Mo. 1988) (en banc).
II. State Post-Conviction Proceedings
A. Hearing
14
In his motion for state post-conviction relief, petitioner argued, inter alia, that trial counsel was ineffective for "failing to prepare and present an affirmative mitigating case" at the penalty phase of the trial. A hearing was held in January 1989, at which six witnesses testified: a forensic neuropsychologist, petitioner, petitioner's mother, his two trial attorneys, and a criminal defense attorney with expertise in capital murder cases in the county where petitioner was tried.
15
Dr. William O'Connor, the neuropsychologist, testified that he first interviewed and examined petitioner on September 12, 1988. Primarily based upon the results of Minnesota Multiphastic Personality Inventory test, he expressed the opinion that petitioner had a "mental disease or defect," namely, "ego dystonic homosexuality" and "disassociative disorder with panic attacks." "Ego dystonic homosexuality" refers to a person who engages in homosexual conduct but is unhappy about it or revolted by it. These diagnoses were made by reference to the Diagnostic and Statistical Manual (DSM III) published by the American Psychiatric Association. Dr. O'Connor offered his professional opinion that at the time of the offense petitioner experienced an "acute depersonalization disorder" and was not capable of appreciating the criminality of his conduct or conforming his conduct to law. According to Dr. O'Connor, petitioner had described a direct sexual proposition and advance by Mr. Albert and his own experience of panic. He did remember shooting a gun, but experienced intermittent memory loss in the process of the actual killing.
16
Dr. O'Connor also reported that petitioner's medical records indicated that in August 1985 he sustained brain damage from a head injury "cerebral contusion in the left parietal area." Such an injury would "fairly severely compromise" one's judgment and cause anxiety and difficulty in controlling emotions and impulses. These effects often resolve after about eighteen months. On the basis of the extent of the injury and his examination of petitioner several days before the hearing, Dr. O'Connor believed that the effects of the August 1985 injury and brain damage were still operative in January 1986.
17
Petitioner testified that in his first meeting with one of his trial attorneys he told him that he had committed the crime, and that he wrote the document described above at counsel's request. He recounted how he first met Mr. Albert in the fall of 1985 while jogging in a park near the Liberty Memorial in downtown Kansas City. Mr. Albert was waxing his car, and petitioner stopped to talk to him about it and invited Mr. Albert to his apartment where they continued to talk about the car. Mr. Albert took off his watch to wash his hands and inadvertently left the watch there. Petitioner commented that his sister had a Camaro, and Mr. Albert said the car seemed a bit too flashy for a person of his age, and he was probably going to be selling it soon.
18
Petitioner continued that they met again by chance two weeks later in the park. In January 1986, petitioner called Mr. Albert, and the picnic for the day of the murder was planned. He testified that after he had been badly beaten up in the park in August 1985, he and his roommate always carried a gun with them in the pocket of the coat they shared.
19
Petitioner's version of the events immediately surrounding the murder was somewhat different from the description in his letter to his attorneys. He testified that after Mr. Albert grabbed him and he lost his balance and fell on his stomach, Mr. Albert jumped on his back and started pulling his (petitioner's) pants down. All he could remember about the next twenty to thirty minutes was panic and pain. Somehow he then made it back to the car, which was about twenty-five yards away, and lunged into the back seat to get the gun from the coat which was lying there. When he got hold of the gun, Mr. Albert grabbed him by one of his ankles and started pulling him back out of the car. Petitioner turned around and blindly shot in Mr. Albert's direction.
20
Petitioner further testified that when he realized he had killed Mr. Albert, he took the body back into a wooded area of the park and covered it with the blanket he had borrowed from his roommate. He drove to a nearby convenience store, dropped the gun in a trash can, and called his roommate. The next day he bought a shovel to bury the body. He drove back to the park, but couldn't face seeing the body again, and left.
21
Petitioner testified that he told all this to his attorneys, who advised him that it would be best if he didn't take the stand, that the State's case was wholly circumstantial, and he should just sit back and let the State try to make its case. He relied on this. advice. He stated that he lied at the penalty phase when he denied killing Mr. Albert because he had already been convicted and he was "grabbing at anything."
22
Petitioner also testified about his childhood and how, before his parents' divorce when he was about twelve years old, his father beat him badly on many occasions. He stated that Ms. Wright's testimony that he asked her on January 10 what she would think if he murdered someone was false. Petitioner did tell his friends he would be getting the Camaro his father had told him he would pay half of any car he wanted but he denied that he specified he would be getting it the week or day of the murder. He believed that his friends lied about this point at the urging of Ms. Wright's father, who hated him.
23
Petitioner's mother testified to a chaotic home life until she divorced petitioner's father when her son was about eleven years old. She stated that her ex-husband had a bad temper and was abusive to the children, one time breaking a guitar over petitioner's head. She testified trial counsel never asked her about petitioner's childhood, and never asked her to testify on his behalf, which she would have been willing to do. She stated that trial counsel told her petitioner had a good case because the State had no actual facts.
24
The two attorneys who represented petitioner at trial, John Frankum and Kenneth Morgens, also testified. Neither had handled a capital murder case before. When asked why counsel never requested a mental examination of petitioner, Mr. Morgens responded, "We were never able to develop . . . what I consider to be an adequate factual basis . . . for a statement of allegation which would support in good conscience, and in my ethical obligation to the Court, a legitimate request for that examination." When reminded that he had been privately retained and would not need court approval for such an examination, he did not recall whether he considered asking the family for funds for this purpose.
25
Mr. Morgens further testified that the only witness deposed in preparation for trial was the medical examiner. He testified that the trial strategy was based on counsel's assessment that the State had a weak case because there was no direct evidence of when, where, and by whom Mr. Albert met his death. He acknowledged that counsel knew all the evidence the State had, such as that petitioner's roommate would testify that he saw petitioner leave with Mr. Albert on the day in question with the blanket.
26
With respect to preparation for the penalty phase, Mr. Morgens testified that counsel asked petitioner's mother and sister if there was anything they could say that would make petitioner out to be someone for whom the jury might feel some sympathy, and did not get any positive response to that inquiry. He stated that petitioner's mother and sister chose not to testify on petitioner's behalf. He also stated that petitioner was advised not to testify at the penalty phase, and that, when he took the stand, counsel did not know what he would say, because he had changed his story so many times in the past. He said that counsel had not gotten a consistent version of events from petitioner in the months they had been involved in the case.
27
The criminal defense attorney with expertise in capital murder cases testified next. When asked whether a reasonably competent criminal defense lawyer in the county where petitioner was tried would routinely have a mental evaluation conducted in a capital murder case, she responded: "There are few things in life you can be certain of but this is one of them. There is no capital case that you would not request a psychiatric evaluation of your client." She repeated this opinion with regard to a homosexual killing, and with regard to a defendant the State claimed murdered someone to get his car.
28
Petitioner's other trial attorney, John Frankum, was the last witness at the post-conviction hearing. He stated he believed that because the State only had circumstantial evidence, it was probable the court would grant a motion for judgment of acquittal. He also testified that he didn't think petitioner's story set forth in his letter was a good one, and that it would be detrimental to him if he testified consistently with the letter at the guilt phase of the trial.
29
Mr. Frankum testified that to prepare for the penalty phase, he asked petitioner's mother, father, and sister if they had anything to say to the jury that would show petitioner to be a good person, or to be "the way he is for whatever reason." Mr. Frankum, like Mr. Morgens, testified that he did not know until just before the penalty phase began whether petitioner would decide to testify, that he did not know what petitioner would say on the stand, and that he did not recall advising petitioner as to what might be effective testimony.
B. State Court Rulings
30
The state court, upon review of the record, including the trial transcript, rejected Dr. O'Connor's diagnosis of ego dystonic homosexuality and depersonalization disorder with borderline personality disorder, finding as follows:
31
Movant [Mr. Jones] has been engaged in homosexual activity since the age of sixteen; met the victim while running in the area of the Liberty Memorial, a homosexual meeting place; was living with Wesley Thomas as his lover and roommate; and arranged for a date with the victim. Dr. O'Connor's diagnosis is inconsistent with these facts. . . . When Movant shot Stanley Albert, Movant was not acting under a homosexual panic.
32
These are findings of fact, and they are presumed to be correct if (to state the matter broadly) they are fairly supported by the record. See former 28 U.S.C. § 2254(d). There is such support in this case.
33
The Court accepted Dr. O'Connor's evidence with regard to petitioner's July 1985 head injury and the residual effects shown in the January 1989 tests, but stated: "The Court finds that the head injury did not diminish Movant's capacity to know or appreciate the nature, quality, wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of the law."
34
Accordingly, the state court denied the motion for post-conviction relief. This decision was affirmed by the Missouri Supreme Court. See Jones v. State, 784 S.W. 2d 789 (Mo. 1990) (en banc).
III. Federal Habeas Action
A.
35
Petitioner initiated the present case for federal habeas relief on October 16, 1990. After a second amended petition was filed raising over 30 grounds for relief, the District Court denied petitioner's motion for an evidentiary hearing, and denied the request for habeas relief. Petitioner's Fed. R. Civ. P. 59(e) motion to alter or amend the judgment was also denied,2 and this appeal followed. This Court expanded the certificate of appealability to include the following three issues for appeal:
36
(1) Whether trial counsel was ineffective in failing to develop or present evidence of petitioner's alleged mental disorder and/or organic brain damage during the guilt phase of the trial;
37
(2) Whether trial counsel was ineffective in failing to investigate and present mitigating evidence at the penalty phase of the trial; and
38
(3) Whether the District Court erred in denying petitioner's request for an evidentiary hearing.
39
Although petitioner filed his habeas petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), his right to appeal is governed by the certificate ofappealability requirements found therein at 28 U.S.C. § 2253(c). See Slack v. McDaniel, 120 S. Ct. 1595, 1602 (2000). Thus this appeal is limited to the three listed issues. However, we apply pre-AEDPA standards in reviewing the case. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under these standards, we review the District Court's conclusions of law de novo, and give the state court's factual findings a " presumption of correctness." Jackson v. Gammon, 195 F.3d 349, 353 (8th Cir.), cert. denied, 529 U.S. 1111 (2000); Reed v. Norris, 195 F. 3d 1004, 1005 (8th Cir. 1999).
B.
40
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness"; and (2) "the deficient performance prejudiced the defense." Id. at 687-88. Trial counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Id. at 691. "A fair assessment of attorney performance requires every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.
41
To satisfy the second part of the Strickland test, the petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
C.
42
Petitioner argues that trial counsel were constitutionally deficient in failing to investigate his mental condition, especially in light of petitioner's letter, which described conduct akin to a dissociative experience and panic due to a homosexual assault. Such an investigation would have uncovered petitioner's "mental defect" as diagnosed by Dr. O'Connor, as well as petitioner's brain damage resulting from the August 1985 head injury. With this information, petitioner argues, competent counsel would have pursued a different trial strategy, namely, acknowledging that petitioner committed the murder, but not with "deliberation." Such a strategy, it is said, could have produced a conviction of second-degree murder, which does not carry the death penalty.
43
For petitioner to prevail on this point we must conclude not only that trial counsel's performance was deficient, but also that there is a "reasonable probability" that a defense based upon Dr. O'Connor's opinions and petitioner's own testimony would have resulted in a verdict of not guilty of first-degree murder. See, e.g., Steinkuehler v. Meschner, 176 F.3d 441, 445 (8th Cir. 1999).
44
Defense counsel were in a difficult situation in this case. The facts were against any claim of innocence (except perhaps on the basis of self-defense, which is not a theory that petitioner has ever urged). It may be that the State's case was "circumstantial," in the sense that there was no eyewitness and no confession. Nor was there any physical evidence indisputably linking petitioner to the murder. On the other hand, we think counsel underestimated the strength of the State's case. Indeed, they themselves conceded at the post-conviction hearing that the State's case began to look stronger and stronger as more evidence was developed. Still, what were counsel to do? They had the "letter," giving petitioner's initial account of the incident, but they were skeptical of the persuasive value of any such defense, and we can understand why. In private consultations with counsel, petitioner's account of the killing (which he never denied) changed over time. A particularly telling example of such a change had to do with the consumption of alcohol. The document petitioner gave his lawyers said that he and Mr. Albert had drunk quite a lot after arriving at the nature area and climbing the tower to have their picnic. Later, the results of an autopsy of the victim became available, and the autopsy showed no alcohol in the body. Petitioner then changed his story and said he would testify that Mr. Albert had not been drinking. Counsel feared that petitioner simply would not stand up to cross-examination if he testified, during the guilt phase, to some such version of the events as recounted in the "letter." We do not think this was an unreasonable judgment3.
45
On the other hand, although we would not lay down any per se rule, it is probably true that defense counsel in a capital case should routinely have their client evaluated by a mental-health professional. Setting aside for a moment the diagnosis of "ego dystonic homosexuality" and other mental disorders, such an examination, coupled with an investigation of petitioner's hospital records, would have uncovered the severe beating petitioner had suffered in August of 1985 and the consequent (at least arguable) brain damage. This, in turn, would have enabled counsel to argue that petitioner had not been capable of cool deliberation. One difficulty with this approach is that, in order to follow this strategy fully, petitioner would have had to testify and admit the killing. Certainly it is possible to deny all involvement, or to put the State to its proof, while at the same time asserting that one was incapable of deliberation, but the argument is awkward and unlikely to be appealing to the practical judgment of jurors. We are clear on one thing: counsel at least should have investigated petitioner's hospital records and had them evaluated by an expert. This might have led them to a strategy better than the one ultimately selected.
46
We are cautioned against judging these matters with too much hindsight. Lawyers are not perfect, and the Constitution does not guarantee a perfect trial. Lawyers cannot make facts. They must deal with the facts as they find them. If, however, we assume that the lawyers were constitutionally defective in proceeding as they did at the guilt phase, the real question is, what difference would it have made? Let's suppose that, at the guilt phase, petitioner had testified in accordance with his "letter," or some variation thereof, that the hospital records of brain injury had been introduced, and that Dr. O'Connor's expert testimony had also been placed before the jury. Is there a "reasonable probability" that the jury would not have convicted petitioner of first-degree murder? Or, as the Supreme Court has rephrased the "test," would our "confidence in the verdict be undermined"? Unhappily, these are not very certain standards, perhaps unworthy of the name "test." They require the exercise of judgment, a judgment especially difficult when someone's life is at stake. We have struggled with the issue in this case. On balance, however, we are not able to say that the theory now presented by petitioner (through able counsel) is sufficiently convincing to undermine our confidence in this verdict.
47
The major difficulty with the theory urged is the strong, if not overwhelming, evidence of advance planning and deliberation.4 Petitioner had said for weeks that he was going to get a white Camaro. He had said, falsely, that his father would buy the car for him. He met Stanley Albert in a place frequented by homosexuals. Petitioner himself had had a number of homosexual relationships. He had invited Mr. Albert to pick him up for a picnic on Thursday, January 16, and had told his roommate beforehand that that was the day he was going to get the car. He left the apartment with a blanket, apparently later found covering the body, and a gun. He came back with the car and the watch. (Surely no one would believe Mr. Albert had left his gold watch at petitioner's apartment for months.) He had talked beforehand about killing someone, and had mentioned, after the fact, that he had dragged a body through the woods. He then attempted to cover his tracks by putting a stolen license plate on the car. In the face of all of this evidence, we think that the chances are small that the jury would have been convinced by Dr. O'Connor.
48
What about the penalty phase? If the jury, despite the different strategic approach we have described, had still convicted Mr. Jones of first-degree murder, would it perhaps have been persuaded by the psychological evidence not to sentence him to death? At this point, counsel could also have presented evidence that petitioner's father had beaten him. (We assume for present purposes that a reasonable investigation would have uncovered this evidence before trial, although apparently petitioner never mentioned it to his lawyers.) Again, the process of decision is difficult. The chance that such evidence would have made a difference may be somewhat greater with respect to the penalty phase. But ultimately, we conclude that the argument is not strong enough. Despite the abuse as a child, and despite the brain injury received in August of 1985, petitioner functioned in society at a substantial level of competence. He held a job, had relationships with men and women, and, as we have seen, was capable of detailed planning. It is our job to decide what the jury, expressing the moral judgment of the community, would have done had counsel pursued another strategy. We think that the jury's action would likely have been the same if petitioner had pursued the strategy now suggested. (Under this strategy, incidentally, petitioner would not have taken the stand and told the disastrous and obviously incredible story that he did during the penalty phase. To his counsel's credit, they advised him not to testify at this point, but he disregarded the advice.) We do not think that the Constitution requires that this verdict be disturbed.
49
Finally, we address the argument that the District Court erred in not holding an evidentiary hearing. A full and fair hearing had already been held in the state court. The presiding judge had taken an active and intelligent part, asking good questions of the psychological expert. Full and detailed findings of fact had been rendered. Not much additional evidence had been proffered for a federal-court evidentiary hearing. Additional experts were available, but their opinions, generally in accord with that of Dr. O'Connor, were available to the District Court in affidavit form. The District Court could have held an evidentiary hearing, see Clemmons v. Delo, 124 F.3d 944, 952 (8th Cir. 1997), cert. denied, 523 U.S. 1088 (1998), but it did not abuse its discretion in declining to do so.
IV.
50
We have read the transcript of the trial and the evidentiary hearing in the state motion court. For reasons we have attempted to explain in this opinion, petitioner's arguments do not persuade us. Accordingly, the judgment of the District Court, dismissing this petition for habeas corpus with prejudice, is
51
Affirmed.
1
The Hon. Joseph E. Stevens, Jr., late a United States District Judge for the Western District of Missouri. After Judge Stevens's death, petitioner's Fed. R. Civ. P. 59(e) motion to alter or amend the judgment was denied by the Hon. Howard F. Sachs, United States District Judge for the Western District of Missouri.
2
Following the death of Judge Stevens, the case was assigned to Judge Sachs, United States District Judge for the Western District of Missouri, who denied the Rule 59(e) motion "on limited examination." Petitioner argues on appeal that this was the wrong standard for reviewing his motion. Because our review of petitioner's claims is de novo, this argument is inconsequential.
3
How petitioner would have behaved under cross-examination is perhaps shown by what occurred at the post-conviction hearing. His cross-examination began as follows:
Q. The story that you told here today about the way you murdered Mr. Albert, is that the same story that you told under oath at trial?
A. I can't say for sure now. I couldn't say it was positively a replica of the same story I just told today.
* * *
Q. Would it help jog your memory if I reminded you about your saying that Stanley Albert went to the McDonald's. Do you remember that?
A. Yes.
Q. And that some unknown man came up and drove off with him?
A. Right. This was a story that I manifested for my lawyer . . ..
* * *
Q. So did you lie under oath at your trial?
A. Yes, I did. Q. And you just told us that the reason you lied under oath at your trial was because you thought it would help you?
A. I was delirious. I don't even really know why I did it, to be honest.
4
There are also major problems with petitioner's credibility, as we have noted. Dr. O'Connor's testimony about mental disorders and a panic attack has to assume the truth of petitioner's (latest) version of events.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00101-CR
Jose Alfredo Rivera, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2008-331, HONORABLE GARY L. STEEL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
A jury convicted appellant Jose Alfredo Rivera of the offenses of aggravated sexual
assault, injury to a child, and burglary of a habitation. See Tex. Penal Code Ann. §§ 22.021, .04
(West Supp. 2009), 30.02 (West 2003). The jury assessed punishment at life imprisonment for the
sexual assault and burglary offenses and ten years' imprisonment for the offense of injury to a child,
with all three sentences to run concurrently. The jury also imposed a $10,000 fine. In a single issue,
Rivera contends that the trial court erred by excluding evidence of, and denying him the
opportunity to cross-examine witnesses about, the victim's past sexual conduct. We affirm the
judgment of conviction.
Background
The evidence at trial showed that while the victim was asleep in her bedroom,
someone entered the room and physically attacked her. The victim was struck in the head with a
metal can, choked, beaten, and sexually assaulted. After the attack, the assailant warned the victim
to keep silent, and left the house. The victim went to her aunt's house whereupon the aunt
summoned the victim's mother and they called the police. The aunt informed the police that she had
noticed a car belonging to Rivera parked at the victim's house. Acting on this tip, the police arrested
Rivera, and he was subsequently indicted for aggravated sexual assault, burglary of a habitation, and
injury to a child.
At trial, the jury heard testimony from various witnesses, including the victim, her
mother, and the arresting and investigating officers. The sexual assault nurse examiner testified
about the victim's injuries, including bruising on her face and neck. The nurse examiner testified
that the victim had four notches or tears in her hymen indicative of acute trauma that had occurred
within the previous 24-hour period. The jury also heard evidence of the results of a comparison of
DNA found in semen recovered from a vaginal swab taken from the victim during the sexual assault
examination to a known sample of Rivera's DNA. The jury found Rivera guilty of aggravated sexual
assault, burglary of a habitation, and injury to a child. This appeal followed. In one issue, Rivera
complains of the trial court's exclusion of evidence of the victim's prior sexual conduct. The
trial court excluded the evidence because it found that it did not fall within any of the exceptions
listed in Texas Rule of Evidence 412, the "rape shield law" governing admissibility of a
complainant's prior sexual conduct in a sexual assault case. See Tex. R. Evid. 412.
Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse
of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006);
Stephens v. State, 978 S.W.2d 728, 735 (Tex. App.--Austin 1998, pet. ref'd). The trial court abuses
its discretion when its ruling falls outside the zone of reasonable disagreement or when the trial
court acts arbitrarily and unreasonably without reference to any guiding rules or principles.
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
Discussion
Rule 412 applies in prosecutions for sexual assault, aggravated sexual assault, and
attempts to commit sexual assault or aggravated sexual assault. The rule prohibits the admission of
evidence of specific instances of the victim's past sexual behavior unless it falls within one of
five exceptions: (1) evidence necessary to rebut or explain scientific or medical evidence by the
state; (2) evidence of past sexual behavior with the accused offered to show consent; (3) evidence
that relates to motive or bias of the victim; (4) evidence admissible under rule 609 of the Texas Rules
of Evidence; and (5) evidence that is constitutionally required to be admitted. See Tex. R.
Evid. 412(b)(2). Even if the evidence falls within an exception, the trial court must determine
whether its probative value outweighs the danger of unfair prejudice. Stephens, 978 S.W.2d at 732.
Throughout the trial, the court held four in camera hearings pursuant to rule 412(c).
See Tex. R. Evid. 412(c) (setting forth procedure for offering evidence of victim's past sexual
behavior). During the hearings, evidence was elicited from the victim, her mother, her crisis
counselor, and the sexual assault nurse examiner who examined the victim at the hospital
immediately after the assault. In summary, the testimony was that the victim had sexual contact with
her boyfriend one time in July, approximately one month before the assault. After the assault, as part
of the medical exam, the victim was given a pregnancy test, the results of which were negative.
Two months later, in October, the victim informed her mother that she believed she was pregnant.
The victim and her mother both testified that they thought the pregnancy resulted from the sexual
assault. Desiring to terminate the pregnancy, the victim and her mother made an appointment at a
medical facility and sought to use Crime Victim's Compensation funds to pay for an abortion.
However, tests conducted at the medical facility revealed that the fetus was conceived at least two
weeks prior to the date of the assault and, consequently, Crime Victim's Compensation funds were
not available. Both the victim and her mother were surprised to learn that the pregnancy predated
the sexual assault because the results of the pregnancy test administered at the hospital after the
assault were negative. At that time, the victim's mother first learned of the victim's previous sexual
conduct. The victim and her mother decided to go forward with the abortion, which the victim's
mother agreed to pay for.
Rivera's counsel argued during trial that evidence of the victim's previous sexual
conduct and pregnancy, and the circumstances surrounding her termination of that pregnancy, were
admissible because it was (1) necessary to rebut or explain scientific or medical evidence offered by
the State; and (2) it related to the motive or bias of the victim. (1) See Tex. R. Evid. 412(b)(2)(A), (C).
Was the Evidence Necessary to Rebut or Explain Scientific or Medical Evidence?
Rivera sought to bring forth testimony that the victim had engaged in sexual conduct
with her boyfriend in July, arguing that such evidence was admissible because it was necessary to
rebut the State's medical evidence. On the record before us, we are not persuaded that the trial court
abused its discretion in excluding the testimony. See Boyle v. State, 820 S.W.2d 122, 146-49
(Tex. Crim. App. 1989) (test is whether proffered evidence is material to fact at issue in trial and if
so whether its probative value exceeds its prejudicial nature); Woods v. State, 301 S.W.3d 327, 334
(Tex. App.--Houston [14th Dist.] 2009, no pet.). The sexual assault nurse examiner testified that
the notches she observed on the victim's hymen showed no evidence of granulation, part of the
healing process that begins approximately 24 hours after the initial injury. Based on her
examination, the nurse testified that the injuries to the victim's hymen were the result of recent
trauma, most likely occurring within the 24 hour period preceding the examination. Rivera's counsel
sought to admit evidence that the victim had engaged in sexual conduct with her boyfriend in July,
at least 11 days before the assault. Such evidence would not serve to explain, let alone rebut, the
State's medical evidence regarding the notches, which were indicative of an injury inflicted no more
than 24 hours before the exam. See Landry v. State, 958 S.W.2d 942, 944 (Tex. App.--Beaumont
1998, pet. ref'd) (evidence of child sex offense admissible if necessary to rebut or explain medical
evidence if probative value outweighs danger of unfair prejudice).
Rivera also argues that he should have been permitted to elicit testimony that, despite
the police officer's request, the medical facility did not preserve the fetal remains for further analysis.
Rivera asserts that an analysis of the fetal remains "may have completely exonerated the Appellant
or at least lead to other information and evidence that could have contradicted, discredited, or
explained" medical and scientific evidence that was admitted at trial. Rivera does not explain how
DNA testing of the fetus would have "exonerated" him. Test results that identified Rivera as a
potential father would inculpate, rather than exonerate, him. Test results that excluded him as the
father would not be probative of the issue of whether or not he sexually assaulted the victim. The
trial court did not abuse its discretion in concluding that the evidence was not admissible under
rule 412(b)(2)(A).
Did the Evidence Relate to the Motive or Bias of the Victim?
Rivera's counsel contends that testimony regarding the victim's pregnancy and the
termination of the pregnancy was admissible to establish "motive and bias to blame the Appellant
for the physical and sexual assault." The evidence shows that the victim was sexually assaulted.
The record contains evidence of a violent attack that left the victim with multiple injuries, including
a fractured nose. The evidence does not support the theory that the victim fabricated a story that she
was sexually assaulted in order to conceal the fact that she had previously had sexual contact with
her boyfriend. Nor does evidence of her prior sexual activities imply that she would falsely accuse
Rivera of this sexual assault. Equally illogical is Rivera's assertion that evidence that the victim and
her mother sought to obtain Crime Victim's Compensation funds to pay for an abortion shows the
victim's motive for accusing Rivera of the assault. Had the pregnancy been caused by a sexual
assault, the identity of the assailant would be immaterial. The victim would have no reason to falsely
accuse Rivera of the assault in order to obtain the funds. And, the record evidence indicates that it
was the victim's aunt and mother, not the victim herself, who provided the police with the
information that caused them to identify Rivera as a suspect. Their original suspicion was confirmed
by post-arrest DNA testing that supported the conclusion that Rivera was the assailant. Moreover,
the victim's assumption that her pregnancy resulted from the sexual assault was a reasonable one
since the pregnancy test given during the sexual assault examination was negative. Rivera failed to
demonstrate a definite and logical link between the victim's past sexual conduct and the alleged
motive to fabricate a story inculpating Rivera. See Stephens, 978 S.W.2d at 735. The trial court did
not abuse its discretion by concluding that the evidence was not admissible under rule 412(b)(2)(C).
Was Admission of the Evidence Constitutionally Required?
On appeal, Rivera asserts that the evidence related to the victim's sexual history
should have been admitted under rule 412(b)(2)(E) and that by excluding the evidence, the trial court
denied him his "constitutional right to a full and fair confrontation of his accuser." When a state
procedural rule does not satisfactorily permit the defense to attack the credibility of a witness, the
rule must give way to the constitutional right. See Davis v. Alaska, 415 U.S. 308, 319 (1974).
Although evidence of an alleged victim's past sexual behavior in a prosecution for sexual assault is
generally excluded under the Texas Rules of Evidence, such evidence must be admitted when
constitutionally required. See Tex. R. Evid. 412(b)(2)(E). The Sixth Amendment to the United
States Constitution guarantees the right of an accused in a criminal prosecution "to be
confronted with the witnesses against him." U.S. Const. amend. VI; Davis, 415 U.S. at 315.
"Confrontation means more than being allowed to confront the witness physically." Davis, 41 U.S.
at 315. Its fundamental purpose is to secure for the opponent the opportunity to cross-examine the
accuser. Id. at 315-16.
Although appellant alludes briefly to this constitutional issue in his brief, he raised
no such argument before the trial court. At the third in camera hearing, Rivera's counsel stated:
The effort to get the State to pay for [the abortion] would qualify under 412(b) down
to--well, 2(c), which goes to the admission of this type of evidence as--relating to
the motive or bias of the alleged victim and only in the sense that it goes to
credibility.
At the fourth and final in camera hearing, counsel asked the trial court "to allow us, under
TRE 412(b)(2)(A) and (C) for the admission of the evidence." Rivera's trial objections did not raise
his constitutional rights, nor did they apprise the trial court that the evidence should have been
admitted under rule 412(b)(2)(E). Constitutional errors may be waived or forfeited by a failure to
make a timely and specific assertion of the right. Boulware v. State, 542 S.W.2d 677, 682 (Tex.
Crim. App. 1976). The trial objection must comport with the issue raised on appeal; otherwise
nothing is preserved for review. See Tex. R. App. P. 33.1(a)(1); Ibarra v. State, 11 S.W.3d 189, 197
(Tex. Crim. App. 1999). By failing to raise the objection, Rivera failed to preserve error on the issue
of his constitutional right to confront the victim and the admissibility of the evidence under
rule 412(b)(2)(E). See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding that
when appellant objected to hearsay testimony but not under Confrontation Clause appellant waived
constitutional argument on appeal); Eaves v. State, 141 S.W.3d 686, 691 (Tex. App.--Texarkana
2004, pet. ref'd).
Had Rivera preserved this error for review, the same result would obtain. As with
all of rule 412's exceptions, evidence is only admissible if its probative value outweighs its
prejudicial effect. Tex. R. Evid. 412(b)(3). In determining whether the potential prejudice of
evidence outweighs its probative value we consider (1) how compellingly the evidence makes a
consequential fact more or less probable; (2) the evidence's potential to impress the jury in an
irrational way; (3) the time needed to develop the evidence; and (4) whether other evidence is
available to prove the consequential fact at issue. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim.
App. 1999). As discussed above, in the present case the evidence sought to be admitted has little,
if any, probative value with regard to the issue of whether Rivera is the person who sexually
assaulted the victim. While the Sixth Amendment protects an accused's right to cross-examine the
witness, it does not prevent a trial judge from limiting cross-examination because of concerns about,
among other things, "harassment, prejudice, confusion of the issue, the witness' safety, or
interrogation that is repetitive or only marginally relevant." Hammer v. State, 296 S.W.3d 555,
561 & n.7 (Tex. Crim. App. 2010). We conclude that it was not an abuse of discretion for the
trial court to exclude the evidence, and we overrule Rivera's appellate issue.
CONCLUSION
Having overruled Rivera's only appellate issue, we affirm the judgment of conviction.
_____________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: September 15, 2010
Do Not Publish
1. On appeal, Rivera also contends that the evidence was constitutionally required to be
admitted. See Tex. R. Evid. 412(b)(2)(E).
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In the Supreme Court of Georgia
Decided: June 1, 2015
S15Y1102. IN THE MATTER OF CHARLES B. MERRILL, JR.
PER CURIAM.
This matter is before the Court on the petition of Charles B. Merrill, Jr.
(State Bar No. 502700), who seeks to surrender his license to practice law.
According to the petition, Merrill was convicted in September 2011 of a felony
conspiracy to make false statements and reports for the purpose of influencing
the Rural Development Administration in connection with a loan in violation of
18 USC §§ 371 and 1014.1 Merrill admits that, by virtue of this felony
conviction, he violated Rule 8.4 (a) (2) of Bar Rule 4-102 (d), the maximum
penalty for which is disbarment, and he offers to surrender his license to resolve
this violation. The State Bar recommends that we accept the petition for
voluntary surrender, and so does the special master, Paul H. Threlkeld.
We have reviewed the record and agree to accept Merrill’s petition for the
1
Merrill was convicted upon his entry of a guilty plea in the United States District
Court for the Northern District of Mississippi.
voluntary surrender of his license. Accordingly, the name of Charles B. Merrill,
Jr., is hereby removed from the rolls of persons entitled to practice law in the
State of Georgia. Merrill is reminded of his duties under Bar Rule 4-219 (c).
Voluntary surrender of license accepted. All the Justices concur.
2
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618 P.2d 942 (1980)
Calvin W. SMITH, Petitioner,
v.
WORKERS' COMPENSATION COURT of the State of Oklahoma; The Austin Company; and/or Tulsa Acoustical Company; and/or Subcon Services, Inc.; and/or Bob Vale Paint Company; and/or Bob Vale Acoustical Drywall, Inc.; and/or General Accident Fire & Life; and/or Travelers Insurance Company; and/or U.S. F. & G. Insurance Company; and/or Hartford Insurance Company; and/or Mid-Continent Casualty Company, Respondents.
No. 54191.
Supreme Court of Oklahoma.
October 14, 1980.
John L. Harlan, Sellers & Harlan, Sapulpa, for petitioner.
Sanders, McElroy & Carpenter, Tulsa, for respondents, Tulsa Acoustical Co. and Travelers Insurance Co.
IRWIN, Vice Chief Justice.
Calvin W. Smith (claimant) sought workers' compensation benefits from several former employers and their insurance carriers for alleged disabilities resulting from an occupational disease (asbestosis). The trial tribunal denied recovery as against Tulsa Acoustical Company, The Austin Company and their respective insurance carriers on the theory that claimant was not "an employee of The Austin Company or Tulsa Acoustical Company on the last day of injurious exposure".[1] Claimant's rights as to *943 the other name of respondents were reserved. Claimant seeks review of the order denying him compensation benefits.
On review, claimant does not challenge the order denying him benefits as against The Austin Company and its insurance carrier; therefore, that part of the order is sustained.
The record discloses that claimant, while an employee of Tulsa Acoustical Company (Respondent), was exposed to the danger of inhalation of asbestos dust for more than five (5) days during 1973 and for more than fifty-six (56) days between June 1, 1975 and July 1, 1976. The principal issue presented is whether the 5 days may be "tacked" onto the 56 days to meet the sixty (60) days exposure requirement of 85 O.S. 1971, § 11(3)[2] which provides:
"3. Permanent Partial Disability. Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefore, without right to contribution from any prior employer or insurance carrier, provided, however, that in the case of silicosis or asbestosis, the only employer and insurance carrier liable shall be the last employer in whose employment the employee was last exposed to harmful quantities of silicon dioxide (S [1]O[2]) dust on each of at least sixty (60) days or more, and the insurance carrier, if any, on the risk when the employee, was last so exposed under such employer." (e.a.)
Claimant contends that the two periods of exposure may be "tacked" to meet the 60 days requirement. Respondents contend that the 60 days requirement means on each of at least 60 days of continuous uninterrupted employment by the same employer.
Workmens' compensation legislation for occupational diseases was first enacted in 1953. Okl.Session Laws 1953, pgs. 427-430. Although "asbestosis" and "silicosis" were specified as occupational diseases,[3] special provisions were made applicable to those two diseases that were not applicable to other occupational diseases.[4]
Section 11(3) was re-enacted in 1977 and is codified as § 11(4). It is the only section in our present Workers' Compensation Act which makes a distinction between "asbestosis" and "silicosis" and other occupational diseases.
Under § 11(3), the liability of compensation for an occupational disease, except for asbestosis and silicosis, is placed on the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer is liable. The period or length of time the employee is injuriously exposed or employed is immaterial in establishing liability.
However, in the case of asbestosis or silicosis, a claimant is not entitled to compensation *944 benefits unless he has been exposed to harmful quantities of silicon dioxide on each of at least sixty (60) days or more while in the employment of the same employer. The "last employer in whose employment the employee was last exposed on each of at least sixty (60) days or more," shall be liable. And, the "insurance carrier, if any, on the risk when the employee was last so employed under such employer" is liable. There is no language in this section that could be construed as requiring at least sixty (60) days of continuous uninterrupted employment by the same employer before liability attaches.
We hold that each day that claimant was exposed to harmful quantities of asbestos dust during 1973 or any other period while an employee of respondent may be tacked onto the 56 days he was harmfully exposed to such dust between June 1, 1975 and July 1, 1976. Our holding is not in conflict with the cases cited by respondents from other jurisdictions. There is a material difference between the statutes construed in those cases and § 11(3).
It appears that respondent's insurance coverage was written by Travelers Insurance Company between June 1, 1975 and July 1, 1976, during which claimant sustained 56 days of exposure. Travelers contends that it is not liable because it was not respondent's insurance carrier for the required 60 days of exposure.
The "insurance carrier, if any, on the risk when the employee was last so exposed under such employer" is liable in the case at bar. Although the insurance carrier cannot be liable unless liability attaches to its insured, the requirements for liability of the insurance carrier are not the same as for the insured-employer.
Section 11(3) employs singular language when it imposes liability against an employer and its insurance carrier whether compensation for asbestosis or silicosis or another occupational disease is involved. The term "last so exposed under such employer" has reference only to the last employer against whom an employee can establish the 60 days exposure requirement and relates to the time that the employee was "last exposed to harmful quantities of silicon dioxide". If Travelers Insurance Company was Tulsa Acoustical Company's insurer on the last day claimant was "exposed" while an employee of respondent, and claimant establishes respondent's liability, then liability against Travelers Insurance Company is established.
Order sustained as to The Austin Company and its insurance carrier, General Accident Fire & Life Assurance Corp. Order vacated as to Tulsa Acoustical Company and its insurance carrier, Travelers Insurance Company and the cause remanded to the trial tribunal for further proceedings.
ORDER SUSTAINED IN PART; AND VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.
LAVENDER, C.J., and WILLIAMS, HODGES, BARNES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.
OPALA, J., disqualified.
NOTES
[1] The parties agree that the trial court inadvertently based its order on the wrong provision of 85 O.S. 1971, § 11(3), the first part which is applicable to all occupational diseases except asbestosis and silicosis. The parties also agree that the second part of the statute, which is applicable only to asbestosis and silicosis, is controlling in the case at bar.
[2] This claim is governed by the laws existing prior to the 1977 enactment of the new "Workers' Compensation Act", effective July 1, 1978. 85 O.S. 1979 Supp. § 1 et seq.
[3] 85 O.S. 1971, § 3(16), sub-paragraphs (l) and (m).
[4] Some of the statutes that were enacted in 1953 which were repealed by the new "Workers' Compensation Act" in 1977 are:
85 O.S. 1971, § 3.2, defining "Asbestosis".
85 O.S. 1971, § 3.3 defining "Silicosis". This section provided that "In the absence of conclusive evidence in favor of the claim, disability from silicosis or asbestosis shall be presumed not to be due to the nature of any occupation unless during the ten (10) years immediately preceding the date of disablement the employee has been exposed to the inhalation of silica dust or asbestos dust over a period of not less than two (2) years ..."
85 O.S. 1961, § 22(8), enacted in 1953, prescribed a schedule of compensation for silicosis and asbestosis and contained this proviso "no compensation shall be payable for partial disability from silicosis and asbestosis." Section 22(8) was repealed in 1971. Okl.Session Laws 1974, C. 336, pgs. 876-877.
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411 So.2d 588 (1982)
STATE of Louisiana in the Interest of Curtis FRANCOIS.
No. 14703.
Court of Appeal of Louisiana, First Circuit.
March 2, 1982.
Joseph A. Sims, Jr., Asst. Dist. Atty., Hammond, for the State.
Thomas Frierson, Asst. Public Defender, Livingston, for defendant-appellant.
Before CHIASSON, EDWARDS and LEAR, JJ.
LEAR, Judge.
On January 5, 1981, a theft of $40.00 from an automobile was reported to have occurred in Walker, Louisiana. Deputy John Bess of the Walker Police Department, after an initial investigation, located and detained Curtis Francois, a juvenile aged sixteen years old. Curtis was then taken by the deputy to the Livingston Parish Courthouse for questioning. Curtis's mother, Elizabeth Francois, who was already at the courthouse concerning an unrelated matter, was informed that her son was being brought there for questioning concerning the "robbery". Mrs. Francois was waiting for her son and the deputies when they arrived. Upon their arrival, Curtis, his mother and the two deputies went into a room in the courthouse and one of the deputies informed Curtis of his constitutional rights as per Miranda. Curtis then signed a consent to question form, which is in the record. Immediately thereafter Curtis was questioned and subsequently gave an oral confession which implicated him in the theft. Mrs. Francois was in the presence of her son from the time he arrived at the courthouse through the questioning and his confession.
A motion to suppress the oral inculpatory statement (confession) made by Curtis was filed in the delinquency proceeding below. The motion to suppress was denied and, after an adjudicatory hearing, the court *589 found Curtis to be delinquent. This appeal was then filed on his behalf, challenging the admission of the oral inculpatory statement.
Article I, Section 13 of the 1974 Louisiana Constitution provides that an arrested or detained person be fully advised of his right to remain silent, his right against self-incrimination and his right to the assistance of counsel. Even before the adoption of Article I, Section 13 in 1974, these advisory warnings were mandated by the United States Supreme Court in its ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). And, these principles were also held to apply to juvenile proceedings by the United States Supreme Court in the case of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In the case of State In Interest of Dino, 359 So.2d 586 (La.1978), our Supreme Court expanded on these principles as they are applied to juveniles. In Dino the Court stated that:
"Because most juveniles are not mature enough to understand their rights and are not competent to exercise them, the concepts of fundamental fairness embodied in the declaration of rights of our constitution require that juveniles not be permitted to waive constitutional rights on their own. For these reasons we hold that in order for the state to meet its heavy burden of demonstrating that a waiver is made knowingly and intelligently it must affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian or other adult interested in his welfare before he waived his right to counsel and privilege against self-incrimination. [emphasis added]
"Accordingly, the purported waiver by a juvenile must be adjudged ineffective upon the failure by the state to establish any of three prerequisites to waiver, viz., that the juvenile actually consulted with an attorney or an adult before waiver, that the attorney or adult consulted was interested in the welfare of the juvenile, or that, if an adult other than an attorney was consulted, the adult was fully advised of the rights of the juvenile." [emphasis added]
In Dino, the juvenile's mother, while actually present in a separate room at the police station, was not present with or asked if she wished to be present with her son while the police questioned him. Nor was she informed of her son's constitutional rights or given an opportunity to confer with him about whether he should waive his constitutional rights and give the police a statement.
In this present case Mrs. Francois was present with her son when he was informed of his right to remain silent and to the assistance of counsel and was present during the questioning of her son. While both she and her son testified at the motion to suppress that they were advised of these constitutional rights and understood that Curtis did not have to make a statement, that they could have requested the presence of an attorney and that they could have terminated the questioning at any time, the evidence reveals that Curtis did not actually consult with nor discuss with his mother whether these rights should be waived and whether he should make a statement to the officers. The record further indicates that neither Curtis, nor his mother, were advised that they had the right to actually consult with each other and discuss in private whether these rights should be waived and a statement given. The evidence also shows that no opportunity for consultation or discussion was afforded to Curtis and his mother prior to his waiver of his rights and questioning. In fact, Mrs. Francois testified that she did not realize or understand that she had the right to have a private consultation or discussion with her son prior to the waiver of his rights and the questioning.
In Dino the Court required an affirmative showing that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian or other adult interested in his welfare. We find that, in the absence of such a meaningful consultation (discussion) actually having taken place in private between the juvenile *590 and an attorney and/or interested adult prior to a waiver, the requirement of Dino would be meaningless unless the juvenile and his attorney and/or an interested adult were advised of their right to and given the opportunity for such a private consultation.
Accordingly, the purported waiver of the juvenile must be adjudged ineffective upon the failure by the state to establish that the juvenile and his attorney and/or an informed parent, guardian or other adult interested in his welfare were both informed of their right to and were afforded an opportunity for a private consultation with each other and an intelligent and knowing waiver of this right by both the juvenile and his attorney and/or the interested adult.
We find additional support for our position in the recent case of State v. Hudson, 404 So.2d 460 (La.1981). In that case the Court affirmed the trial court's denial of defendant's motion to suppress his confession. An important factor in the Court's decision in Hudson was its finding that the juvenile was afforded an opportunity to (and actually did) consult privately with his parents before making the statement to the police.
Because no consultation between the juvenile and an attorney and/or an interested adult actually occurred in this case, nor were the juvenile and, in this case, his mother informed of their right to such private consultation prior to the juvenile's waiver of his constitutional rights and his questioning, the confession and/or inculpatory statement made by Curtis Francois on January 5, 1981, to officers of the Walker Police Department and/or officers of the Livingston Parish Sheriff's Department should have been suppressed.
For the reasons assigned, the finding of delinquency and commitment of Curtis Francois is hereby vacated and this matter is remanded to the juvenile court for further proceedings not inconsistent with the views herein expressed.
VACATED AND REMANDED.
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967 F.2d 703
61 USLW 2018
TELEMATICS INTERNATIONAL, INC., Plaintiff, Appellant,v.NEMLC LEASING CORPORATION, et al., Defendants, Appellees.
No. 91-2003.
United States Court of Appeals,First Circuit.
Argued Dec. 6, 1991.Decided June 22, 1992.
1
Alan R. Hoffman with whom Lynch, Brewer, Hoffman & Sands, Boston, Mass., was on brief, for plaintiff, appellant.
2
Edward J. O'Meara with whom Ann S. Duross, Richard J. Osterman, Jr., Washington, D.C., John Foskett, Michael P. Ridulfo, Deutsch Williams Brooks DeRensis Holland & Drachman, P.C., Boston, Mass., and Carmen Rodriguez, Franklin, Mass., were on brief, for F.D.I.C.
3
Before CAMPBELL and TORRUELLA, Circuit Judges, and POLLAK,* Senior District Judge.
4
LOUIS H. POLLAK, Senior District Judge.
5
This case requires us to address the scope of a federally-created receiver's power to exercise its statutory powers free of judicial interference. We conclude that under 12 U.S.C. § 1821(j), a federal court lacks jurisdiction to enjoin the Federal Deposit Insurance Corporation (FDIC), acting in its role as receiver for a banking institution, from attaching a certificate of deposit in which the banking institution holds a security interest.
I. Factual and Procedural Background
6
Underlying this action is an equipment lease that was initially executed in November 1987. The parties to the original lease were NEMLC Leasing Corp. and NEMLC Leasing Associates No. 3 (collectively, NEMLC), as lessors, Digital, Inc., as lessee, and Telematics International, Inc. (Telematics), as manufacturer of the equipment and guarantor of the lessee's performance. In 1990, the parties negotiated an assignment of the lease from Digital, Inc., to Digital Radio Networks Limited Partnership (Digital Radio Networks). Although the parties apparently all agreed to the lease, and all parties acted thereafter as if the assignment was valid, only Telematics executed the assignment agreement.
7
On May 31, 1991, upon the expiration of the prior security posted by Telematics, Telematics and NEMLC entered into a deposit pledge agreement, pursuant to which, to secure the performance of Digital Radio Networks, Telematics granted NEMLC a security interest in a certificate of deposit, now held at Fleet Bank. On July 11, NEMLC assigned its assets, including the lease, to its parent corporation, the New Bank of New England (NBNE). On the following day, the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver for NBNE, and thereby succeeded to NBNE's rights, titles, powers, and privileges, including the rights under the lease that NBNE had just acquired from NEMLC. See 12 U.S.C.A. § 1821(d)(2)(A)(i) (West 1989). On August 12, the FDIC informed Telematics that Digital Radio Networks was in default under the terms of the lease assignment, and that as a result the FDIC intended to foreclose upon the pledged certificate of deposit at Fleet Bank.
8
Telematics then initiated the present action in the District Court for the District of Massachusetts, seeking to enjoin the FDIC from foreclosing upon the certificate of deposit. Telematics asserted in its complaint that, as the assignment of the lease to Digital Radio Networks had never been executed by all parties, as was required under the terms of the lease, the assignment was invalid, and thus Telematics' guarantee of Digital Radio Networks' performance through the certificate of deposit was without effect. On Telematics' motion for a preliminary injunction, the district court concluded that under 12 U.S.C. § 1821(j) it lacked jurisdiction to enter an injunction against the FDIC in its capacity as receiver. The present appeal followed.
II. Legal Analysis
9
In 1989, Congress passed the Financial Institutions Reform and Recovery Enforcement Act (FIRREA) as a response to the growing crisis in the nation's banking and savings and loan industries. The statute allows the appointment of a federally-created entity, in this case the FDIC, as conservator or receiver of a failing or failed insured institution, for the protection of depositors and creditors of the institution. Section 212 of FIRREA provides the FDIC with broad powers in its roles as conservator and receiver of an insured banking institution. Among those powers are the power to:
10
(i) take over the assets of and operate the insured depository institution ...;
11
(ii) collect all obligations and money due the institution;
12
(iii) perform all functions of the institution in the name of the institution which is consistent with the appointment as conservator or receiver; and
13
(iv) preserve and conserve the assets and property of such institution.
14
12 U.S.C.A. § 1821(d)(2)(B) (West 1989 & Supp.1992). When the FDIC is acting as receiver, it has the further power to "place the insured depository institution in liquidation and proceed to realize upon the assets of the institution, having due regard to the conditions of credit in the locality." 12 U.S.C.A. § 1821(d)(2)(E) (West 1989). To enable the FDIC to move quickly and without undue interruption to preserve and consolidate the assets of the failed institution, Congress enacted a broad limit on the power of the courts to interfere with the FDIC's efforts. Section 1821(j) provides:
15
Except as provided in this section, no court may take any action, except at the request of the Board of Directors [of the Corporation] by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or as a receiver.
16
12 U.S.C. § 1821(j) (West 1989). Congress did not leave individuals having claims against the institution without a remedy, however. FIRREA contains an elaborate administrative system by which the FDIC may adjudicate claims against the insured institution. See 12 U.S.C.A. § 1821(d)(3)-(11) (West 1989 & Supp.1992). A party whose claim is disallowed by the FDIC may seek administrative review or may pursue legal remedies in the district court. See 12 U.S.C.A. § 1821(d)(6)(A) (West 1989).
17
Telematics does not contend that the FDIC acted outside its statutory powers as receiver when it sought to foreclose upon the certificate of deposit at Fleet Bank. Rather, Telematics argues that the anti-injunction provision of section 1821(j) does not mean what it appears to mean, and that the district court retains jurisdiction to enjoin the FDIC in the exercise of its powers as receiver. We cannot agree. In light of the elaborate structure created by FIRREA, and the evident intent of Congress that the structure should be permitted to stand with minimal court interference, we conclude that section 1821(j) deprived the district court of jurisdiction to enter the injunction that Telematics sought in the present case. See Rosa v. Resolution Trust Corp., 938 F.2d 383, 397-98 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991); 281-300 Joint Venture v. Onion, 938 F.2d 35, 39 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 933, 117 L.Ed.2d 105 (1992). Allowing Telematics to enjoin the FDIC would clearly restrain or affect the FDIC in the exercise of its powers as receiver to collect moneys due and to realize upon the assets of NEMLC. If such an injunction were permissible, creditors would be able to secure judicial review, in advance, of every action that the FDIC proposed to take, regardless of whether that action was clearly within the FDIC's statutory authority. Such judicial interference would dramatically limit the FDIC's ability to exercise its statutory powers efficiently and effectively. Moreover, as the statute provides for expedited administrative review of claims presented to the FDIC, and for judicial review of the resulting administrative determination, precluding injunctions of the type sought here does not leave parties such as Telematics without recourse.
18
Telematics attempts to avoid the clear implications of section 1821(j) by pursuing a tangled thread through the legislative history of FIRREA and its predecessor statute, the Financial Institutions Supervisory Act of 1966 (FISA). Telematics points to a passage in the legislative history of section 1821(j), which states:
19
Finally, the subsection bars courts, to the same extent as the Home Owners' Loan Act does now under existing law, from restraining or affecting the exercise of the powers or functions of the FDIC as conservator or receiver, except at the request of the Board of Directors.
20
H.R.Rep. No. 54(I), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 130. The existing law to which the passage refers is the former 12 U.S.C. § 1464(d)(6)(C),1 which provided:
21
Except as otherwise provided in this subsection, no court may take any action for or toward the removal of any conservator or receiver or, except at the instance of the Board, restrain or affect the exercise of powers or functions of a conservator or receiver.
22
Telematics attempts to argue, based on various passages of the legislative history of FISA and references to other provisions within that act, that the former section 1464(d)(6)(C) only prohibited courts from hearing challenges to the appointment of a conservator or receiver. From this, it follows--so Telematics contends--that section 1821(j) likewise only applies to challenges to the appointment of a conservator or receiver and does not deprive the court of jurisdiction to enter injunctions against the FDIC in other instances.
23
We decline to adopt Telematics' interpretation of section 1821(j). Since section 1821(j) nowhere refers in its text to the removal of a conservator or receiver, and indeed entirely omits the reference to removal contained in the former section 1464(d)(6)(D), it is difficult to conceive that Congress truly intended section 1821(j) to apply only to such cases. Moreover, there appears to be little reason to resort to the rather convoluted and ambiguous legislative history of two distinct provisions, enacted more than twenty years apart, to interpret the unambiguous language of section 1821(j). As this court has stated, the task of interpretation begins with the text of the statute itself, and statutory language must be accorded its ordinary meaning. See Securities Industry Ass'n v. Connolly, 883 F.2d 1114, 1118 (1st Cir.1989) (citing United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982)); see also Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 833-35, 110 S.Ct. 1570, 1575, 108 L.Ed.2d 842 (1990). Section 1821(d)(2), read broadly, sets forth the powers that FDIC shall possess in its role as conservator or receiver for an insured institution. Section 1821(j) states that, except as otherwise provided, the courts shall lack the power to restrain or affect the FDIC in the exercise of those powers. We do not suggest that legislative history may never have a role in interpreting statutory language, even seemingly clear statutory language. In the present case, however, it is untenable to argue that, despite the structure of section 1821 as a whole and the clear language of section 1821(j), Congress intended section 1821(j) to have only a very narrow meaning, one nowhere suggested by the explicit language of the statute itself.
24
Telematics further argues that the decision of the Supreme Court in Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corp., 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989), supports its interpretation of section 1821(j). In Coit, the Supreme Court, interpreting the former section 1464(d)(6)(C), concluded that that provision did not bar the district court from hearing in the first instance a creditor's claim against the Federal Savings and Loan Insurance Corporation (FSLIC). Coit does not support Telematics' position in the present case, however. In Coit, the FSLIC argued that the creditor was required, before seeking a judicial remedy, to pursue its claim through an administrative procedure which FSLIC had established pursuant to its statutory power under FISA "to settle, compromise, or release claims in favor of or against the insured institutions." 12 U.S.C.A. § 1729(d) (repealed). The Court determined that section 1729(d) did not grant the FSLIC the power to insist that creditors follow its administrative procedure, and that therefore permitting the creditor to bypass the administrative procedure and seek a judicial remedy would not restrain or affect the exercise of any of the FSLIC's statutorily-granted powers as conservator or receiver. See id. 109 S.Ct. at 1368-69; see also 281-300 Joint Venture, 938 F.2d at 39. In so deciding, the Court noted that section 1464(d)(6)(C) appeared to focus primarily on actions to remove the FSLIC from its appointment as conservator or receiver. See Coit, 109 S.Ct. at 1369, 1371.
25
Coit is inapposite for two reasons. First, Coit simply held that where the FSLIC was acting outside its statutorily-granted powers, the anti-injunction provisions of the former section 1464(d)(6)(C) did not apply. As was noted above, Telematics does not contend in the present case that the FDIC was acting beyond the scope of its statutory powers; thus, Coit, rather than assisting Telematics, actually supports the FDIC's position.2 Second, to the extent that Telematics relies on Coit to bolster its argument that section 1821(j) only applies to actions to remove a conservator or receiver, we have already explained why, in this respect, we do not find section 1821(j) analogous to the former section 1464(d)(6)(C). Coit, which made no mention of section 1821(j) (and which, indeed, antedated the adoption of FIRREA by several months), does not provide a basis for adopting Telematics' proposed reading of section 1821(j).
26
Finally, Telematics argues that even if the district court lacked the power to enjoin the FDIC from attaching the certificate of deposit held by Fleet Bank, the court nevertheless maintained the authority to allow Telematics to attach the certificate of deposit. The district court concluded that it lacked such authority, and we agree. Permitting Telematics to attach the certificate of deposit, if that attachment were effective against the FDIC, would have the same effect, from the FDIC's perspective, as directly enjoining the FDIC from attaching the asset. In either event, the district court would restrain or affect the FDIC in the exercise of its powers as receiver. Section 1821(j) prohibits such a result.
27
By holding that the district court lacks jurisdiction to enjoin the FDIC when the FDIC is acting pursuant to its statutory powers as receiver, we do not suggest that the FDIC enjoys blanket immunity from judicial oversight. When the FDIC is clearly acting outside the scope of its statutory powers, the rationale of Coit would permit a district court to enjoin the FDIC, provided, of course, that the party seeking the injunction is able to demonstrate that the standards for injunctive relief are otherwise met. That rationale, however, is insufficient to overcome the clear language of section 1821(j) in instances where the FDIC does not exceed the bounds of its statutory powers.
28
Accordingly, we affirm the order of the district court.
*
Of the Eastern District of Pennsylvania, sitting by designation
1
This provision, modified slightly, is now codified at 12 U.S.C.A. § 1464(d)(2)(G) (West Supp.1992)
2
It is further worth noting that unlike FISA, which merely granted the FSLIC the power "to settle, compromise, or release claims in favor of or against the insured institutions," 12 U.S.C.A. 1729(d) (repealed), FIRREA creates an elaborate structure for administrative review and requires claimants to proceed through that structure before seeking a judicial remedy. See 12 U.S.C. § 1821(d)(3)-(13)
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12‐711‐ag
Doe v. Lynch
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 10th day of December, two thousand fifteen.
PRESENT:
ROBERT D. SACK,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
JOHN DOE,
Petitioner,
v. 12‐711‐ag
LORETTA E. LYNCH, United States Attorney
General,
Respondent.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER: JUSTIN CONLON, North Haven, CT.
FOR RESPONDENT: MICHAEL C. HEYSE, Trial Attorney, Office of
Immigration Litigation; Benjamin C. Mizer,
Acting Assistant Attorney General, Civil
Division; Mary Jane Candaux, Assistant
Director, Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
FOR AMICI CURIAE: TRINA REALMUTO, National
Immigration Project of the National
Lawyers Guild, for Amici Curiae National
Immigration Project of the National Lawyers
Guild and Immigrant Defense Project, Boston,
MA.
UPON DUE CONSIDERATION of this petition for review of a decision
of the Board of Immigration Appeals (ʺBIAʺ), it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
John Doe,1 a native and citizen of the Dominican Republic, seeks review of
a February 8, 2012 order of the BIA affirming the December 2, 2009, decision of an
Immigration Judge (ʺIJʺ), which denied his motion to reopen. In re John Doe, No. A078
391 324 (B.I.A. Feb. 8, 2012), affʹg No. A078 391 324 (Immig. Ct. Hartford Dec. 2, 2009).
We assume the partiesʹ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
We review the BIAʹs denial of a motion to reopen for abuse of discretion,
including its finding that a movant failed to establish prima facie eligibility for the
1 Pursuant to Petitionerʹs unopposed motion, his name has been redacted from
the docket.
2
underlying relief sought. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005); see also INS v.
Abudu, 485 U.S. 94, 104‐05 (1988). ʺAn abuse of discretion may be found in those
circumstances where the Boardʹs decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only summary
or conclusory statements; that is to say, where the Board has acted in an arbitrary or
capricious manner.ʺ Kaur, 413 F.3d at 233‐34 (quoting Zhao v. DOJ, 265 F.3d 83, 93 (2d
Cir. 2001)). We find no abuse of discretion in this case.
Initially, because Doe is removable based on a conviction for an
aggravated felony and controlled substance offense, our jurisdiction to review the BIAʹs
denial of his motion to reopen is limited to constitutional claims and questions of law.
See 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2005); see also
Ortiz‐Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015). Accordingly, we may review Doeʹs
arguments that he established, or will establish in reopened proceedings, his statutory
eligibility for withholding of removal and relief under the Convention Against Torture
(ʺCATʺ). See 8 U.S.C. § 1252(a)(2)(D); Richmond v. Holder, 714 F.3d 725, 728 (2d Cir. 2013)
(ʺWe have jurisdiction to examine, as a question of law, a petitionerʹs statutory
eligibility for relief from removal.ʺ).
On appeal, Doe argues that the agency erred by (1) failing to consider his
cooperation with prosecutors as a circumstance mitigating the presumption that his
drug trafficking conviction was a particularly serious crime, (2) applying a heightened
3
legal standard as opposed to a prima facie eligibility standard to his motion to reopen
and misstating the willful blindness standard, and (3) failing to explain how its CAT
jurisprudence is consistent with its obligations under the United Nations Convention
Against Transnational Organized Crime (ʺCATOCʺ) and a ʺstate‐created dangerʺ
theory. We address each argument in turn.
A. Particularly Serious Crime Determination
As the agency found, Doe failed to establish his prima facie eligibility for
withholding of removal because he was convicted of trafficking large quantities of
controlled substances. Matter of Y‐L‐, A‐G‐, & R‐S‐R‐, 23 I. & N. Dec. 270 (A.G. 2002)
(hereinafter ʺMatter of Y‐L‐ʺ), overruled on other grounds by Khouzam v. Ashcroft, 361 F.3d
161, 170‐71 (2d Cir. 2004). Doe does not contend that the agency misapplied the
standard set forth in Matter of Y‐L‐, but asserts that the standard is not entitled to
deference because the Attorney General unreasonably declined to consider cooperation
with prosecutors as a circumstance mitigating the strong presumption that drug
trafficking aggravated felonies are particularly serious crimes. When reviewing the
Attorney Generalʹs interpretation of the Immigration and Nationality Act, we defer to
the agencyʹs interpretation so long as it is reasonable in light of the two‐step analysis set
forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Here, the withholding of removal statute does not define ʺparticularly serious crime,ʺ
and the phraseʹs meaning is ambiguous. See, e.g., Mei Fun Wong v. Holder, 633 F.3d 64,
4
74 (2d Cir. 2011). The Attorney Generalʹs creation of strong presumptions involving
drug trafficking convictions was a reasonable interpretation of the statute because the
text itself provides the Attorney General with discretion to make the determination. See
8 U.S.C. § 1231(b)(3)(B)(ii) (ʺSubparagraph (A) does not apply … if the Attorney General
decides that . . . the alien, having been convicted of . . . a particularly serious crime is a
danger to the community of the United Statesʺ and ʺ[the per se category of particularly
serious crimes] shall not preclude the Attorney General from determining that,
notwithstanding the length of sentence imposed, an alien has been convicted of a
particularly serious crime.ʺ (emphases added)); Miguel‐Miguel v. Gonzales, 500 F.3d 941,
948 (9th Cir. 2007).
Amici Curiae argue that the agency erred because it should have
conducted a separate analysis as to whether Doe is a danger to the community. This
argument fails as a matter of law. The BIA has held that the determination of whether
an individual poses a danger to the community is subsumed in the analysis of whether
the crime is particularly serious; this Court has deferred to that holding under Chevron.
See Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015) (ʺWe have accorded Chevron
deference … to the BIAʹs interpretation that no separate danger to the community
analysis is required when determining whether a crime is particularly serious.ʺ);
Nethagani v. Mukasey, 532 F.3d 150, 154 n.1 (2d Cir. 2008) (ʺ[T]he BIA has held that [an]
alien [convicted of a particularly serious crime] necessarily constitutes ʹa danger to the
5
community of the United States.ʹ We have accepted the BIAʹs interpretation of the
statute.ʺ (citing Ahmetovic v. INS, 62 F.3d 48, 52‐53 (2d Cir. 1995))). We are bound by
these decisions ʺunless and until the precedents established therein are reversed en banc
or by the Supreme Court.ʺ United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009).
B. Prima Facie Evidentiary Standard and Willful Blindness
The agency also reasonably determined that Doe failed to establish his
prima facie eligibility for CAT relief. Contrary to Doeʹs contention, the BIA correctly
applied the prima facie evidentiary standard for motions to reopen and concluded that
Doe could not establish CAT eligibility. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.
2005) (holding that a movant must demonstrate ʺa realistic chanceʺ that he could
establish eligibility). While the BIA correctly stated the willful blindness evidentiary
standard in one sentence and then misstated it in the following sentence, see Khouzam,
361 F.3d at 171 (requiring government officials to ʺknow of or remain willfully blind to
an act [of torture]ʺ (emphasis added)), remand for the BIA to address the error is not
necessary. Its alternate finding, that Doeʹs CAT claim was too speculative, was not
tainted by this error. See Xiao Ji Chen v. DOJ, 471 F.3d 315, 338 (2d Cir. 2006).
Apart from these questions of law, Doe argues that that he sufficiently
established prima facie eligibility for CAT relief because the evidence showed that his co‐
defendant had both means and motive to bribe corrupt Dominican officials, the
Dominican Republic suffers from widespread drug violence, and some corrupt officials
6
had accepted bribes from drug traffickers in the past. We lack jurisdiction to review
this evidentiary‐based challenge, because the likelihood of a future event is a finding of
fact. See Hui Lin Huang v. Holder, 677 F.3d 130, 134‐35 (2d Cir. 2012).
C. Doeʹs CATOC and ʺState‐Created Dangerʺ Claims
Doe concedes that the CATOC provides no independent ground for relief
in removal proceedings, as this Court has held. See Doe v. Holder, 763 F.3d 251, 255‐57
(2d Cir. 2014) (holding CATOC is not self‐executing and requires implementation
through domestic legislation); see also Matter of G‐K‐, 26 I. & N. Dec. 88 (B.I.A. 2013)
(holding that CATOC does not provide independent grounds for relief and its
objectives are already advanced through existing immigration laws). He contends,
however, that remand is appropriate because in Matter of G‐K‐, the BIA failed to explain
how its CAT jurisprudence is consistent with the United Statesʹ obligations under
CATOC and a ʺstate created dangerʺ theory. Doe provides no legal authority, however,
for his contention that given CATOC, the BIA should disregard the burden of proof
required to sustain a CAT claim. See 8 C.F.R. § 1208.16(c)(2). He therefore has identified
no basis for challenging the IJʹs conclusion. We see no reason to disagree with the BIAʹs
conclusion that a state‐created danger theory does not provide a valid basis for
reopening Doeʹs removal proceedings. See Kamara v. Attʹy Gen., 420 F.3d 202, 216‐18 (3d
Cir. 2005).
7
For the foregoing reasons, the petition for review is DENIED. As we have
completed our review, the pending motion for a stay of removal in this petition is
DENIED as moot.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
8
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IN THE SUPREME COURT OF PENNSYLVANIA
In the Matter of : No. 140 DB 2019 (No. 89 RST 2019)
:
:
SHARON LEA WEBBER : Attorney Registration No. 63787
:
PETITION FOR REINSTATEMENT :
FROM INACTIVE STATUS : (Philadelphia)
ORDER
PER CURIAM
AND NOW, this 5th day of November, 2019, the Report and Recommendation of
Disciplinary Board Member dated October 28, 2019, is approved and it is ORDERED that
Sharon Lea Webber, who has been on Inactive Status, has never been suspended or
disbarred, and has demonstrated that she has the moral qualifications, competency and
learning in law required for admission to practice in the Commonwealth, shall be and is,
hereby reinstated to active status as a member of the Bar of this Commonwealth. The
expenses incurred by the Board in the investigation and processing of this matter shall
be paid by the Petitioner.
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530 F.2d 969
Nicholsonv.U. S.
75-1410
UNITED STATES COURT OF APPEALS Fourth Circuit
11/24/75
1
E.D.Va.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-4-2007
USA v. Korey
Precedential or Non-Precedential: Precedential
Docket No. 05-3840
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Korey" (2007). 2007 Decisions. Paper 1710.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1710
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3840
UNITED STATES OF AMERICA
v.
JASON KOREY,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cr-00015)
District Judge: Honorable Gary L. Lancaster
Argued October 25, 2006
Before: SMITH, FISHER and COWEN, Circuit Judges.
(Filed January 4, 2007)
Karen S. Gerlach
Lisa B. Freeland (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorneys for Appellant
Laura S. Irwin (Argued)
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
Jason Korey appeals from his conviction on one count of
using a firearm during and in relation to a conspiracy to
distribute cocaine. He argues (1) that the jury instructions
concerning conspiracy violated his right to due process because
they contained an impermissible mandatory presumption,
(2) that his Sixth Amendment right to be present at his trial was
violated when the judge and the prosecutor had an ex parte
meeting about an improper comment the prosecutor made in the
courtroom, (3) that his right to a fair trial was violated both by
the prosecutor’s apology for foul language that bolstered the
prosecutor’s reputation and by improper statements during
closing argument, and (4) that the District Court erred in
excluding evidence that Korey had been acquitted in an earlier
murder trial – a trial that had been mentioned by a potential
juror during jury selection. For the reasons stated below, we
2
agree that the jury instructions contained an impermissible
mandatory presumption that was not harmless beyond a
reasonable doubt. Consequently, we will vacate Korey’s
conviction.
I.
For a number of years in the late 1990s, Billy Kuhn and
Ray Erfort worked together as cocaine and crack dealers in the
South Hills of Pittsburgh. Jason Korey knew both men, and was
aware that they were drug dealers.
When Erfort was arrested in 1998, he attempted to
prevent the police from finding his drug stash by asking Kuhn
to collect it. Kuhn gathered 29 ounces of cocaine with a street
value of $30,000. After his release from jail, Erfort asked Kuhn
to return the cocaine, but Kuhn refused.
According to the Government, Erfort later approached
Korey, who was seventeen years old at the time, and offered him
cocaine in exchange for killing Kuhn. Korey, in turn, obtained
a .22-caliber handgun with a silencer from a friend, ostensibly
to use in the murder. According to the Government, he then
either murdered Kuhn himself on the morning of July 9, 1999,
or had his friend Dave Clemons murder Kuhn for him on that
date. However, after police discovered the body, they charged
Ray Erfort and Milton Morgan with Kuhn’s murder.
On October 22, 1999, the police, who had an outstanding
warrant for Korey’s arrest based on other circumstances,
received an anonymous telephone tip concerning his
whereabouts. They arrested him based on the outstanding
warrant. At the time of his arrest, Korey had illegal drugs and
3
other contraband on his person, and the arresting officers
prepared charges against him based on this contraband.
Later that day, Korey, while still in police custody,
devised a deal to keep himself out of jail for possession of the
contraband: he offered to provide information about Kuhn’s
murder if they would agree to keep him out of jail on the present
charges. After agreeing to this deal in writing, Korey told the
officers that Erfort had paid him cocaine to kill Kuhn, and that
he had turned to Clemons to carry out the murder for him. He
also told the police where he and Clemons had hidden the
murder weapon. The police recovered the murder weapon from
the location Korey described.
Following this confession, the murder charges against
Erfort and Morgan were dropped, and Korey was charged.
However, he was acquitted of the murder charge after a state
court trial on November 2, 2000.
Several years later, Korey was indicted on federal
firearms charges stemming from the incident. He pleaded guilty
to possessing a silencer and possession of a firearm by a drug
user or addict. As to the remaining charges, he was acquitted of
one count of possessing a stolen firearm, and convicted of using
a firearm during and in relation to a conspiracy to distribute
cocaine. It was during the trial for these charges that the alleged
errors Korey complains of occurred.
Before the trial began, the Government filed a motion in
limine to exclude evidence that Korey had been acquitted of
Kuhn’s murder in state court. The District Court heard
argument on the issue, but reserved judgment. Later, after the
jury venire was sworn, the group of prospective jurors were
4
asked whether they knew Jason Korey. One of the prospective
jurors responded in the presence of other jurors that he knew a
Jason Korey who “was allegedly involved in a murder.” This
same juror expressed reluctance to serve on the jury because of
his “prior experience with Mr. Korey, and [because he was]
aware of some previous allegations.” Although this prospective
juror was dismissed for cause, defense counsel1 argued that the
jury panel should be dismissed. The District Court denied this
request and also determined, over Korey’s objection, that it
would not admit evidence of Korey’s state court acquittal.
During the trial, one of the Government’s police
witnesses had trouble recalling events surrounding his search for
a stolen weapon. When the witness was excused to review his
reports in the hallway, defense counsel requested to see what he
was reviewing. After the District Court indicated that defense
counsel would be able to review a copy for cross examination,
the prosecutor responded with inappropriate language in the
jury’s presence. The District Judge demanded to see the
prosecutor in his chambers. When the attorney for the
Government emerged, he recited the following apology in front
of the jury on the District Court’s request:
Your Honor, before I begin with the
testimony of this witness, I have some remarks for
you, for Mr. Hackney, and for the Jury.
I have been an [A]ssistant U.S. [A]ttorney
in this district since 1991, and I have appeared in
front of you as well as other judges in this Court,
1
Appellate counsel was not trial counsel in this matter.
5
and you should know that even though this is how
I make my living, it is more than a living to me,
and it is something that’s important to me, and I
take pride in what I do and who I do it for and in
the way I do it.
I try to try these cases to the best of my
ability, not only for the convenience of the jury,
but with respect for the Court, with respect to the
parties, and with respect to the witnesses and
anybody else who might be involved in the
system.
That broke down today. I expressed
frustration because of something that was
happening here. I want the Court to know that I
was not expressing irritation at you as the judge,
at Mr. Hackney as opposing counsel – we have
been friends for many years – or as a measure of
disrespect towards this Court or for this jury.
It was inexcusable, but it was borne in a
moment of frustration in the interruption of the
trial, which is something that I would liked to
have gone more smoothly for the benefit of all
concerned.
You have known me for many years, I
have been in and out of the courtroom. I hope
you understand that this was not a picture of me at
my best, but it was just a moment of frustration.
I am sincerely sorry for it.
6
If anyone was offended by it, I want you to
know now that I would not have done it
otherwise, and I’m extremely sorry.
The following morning, defense counsel objected to this speech
and asked for a mistrial, but was overruled by the District Court.
As the trial progressed, it became increasingly clear that
the two sides had different views about what constituted a drug
distribution conspiracy. The Government’s theory was that a
jury could find that Korey was guilty of using a firearm during
and in relation to a drug conspiracy because (1) he agreed to
commit a murder in exchange for cocaine, and (2) in order to
avenge a drug rip-off, Korey used the .22-caliber handgun either
by shooting Billy Kuhn or by giving it to Clemons to do so.
Defense counsel, on the other hand, maintained that agreeing to
provide a service – even an unlawful one – in exchange for
cocaine constituted a buyer-seller relationship and not a drug
distribution conspiracy.
On the final day of the trial, counsel met with the District
Judge to discuss the jury instructions. Over objections by the
defense, the District Court determined that it would instruct the
jury that Korey was, as a matter of law, a member of a drug
distribution conspiracy if he either (1) agreed to accept cocaine
in payment for killing Billy Kuhn, or (2) agreed to murder Billy
Kuhn for Ray Erfort in order to avenge Kuhn’s theft of Erfort’s
cocaine.
After the jury deliberated, Korey was acquitted of
possessing a stolen firearm and convicted of using a firearm
during and in relation to a drug distribution conspiracy. He now
appeals, asking this Court to order a new trial based on four
7
errors: (1) improper jury instructions, (2) a violation of his right
to be present at an ex parte meeting between the prosecutor and
the judge, (3) the prosecutor’s prejudicial comments in his
apology and during closing argument, and (4) the District
Court’s improper exclusion of evidence of his acquittal in the
state court trial for Billy Kuhn’s murder.
II.
Korey’s first complaint is that the jury instructions used
in his trial were erroneous. Specifically, he argues that the
instructions concerning the count for using a firearm during and
in relation to a drug conspiracy contained an erroneous
conclusive presumption. That presumption, he contends,
relieved the Government of its duty to prove all essential
elements of the crime beyond a reasonable doubt. We exercise
plenary review over challenges to the legal standards expressed
in jury instructions. See, e.g., United States v. Zehrbach, 47
F.3d 1252, 1260 (3d Cir. 1995).
Due process requires that the Government prove every
element of the charged offense beyond a reasonable doubt. In
re Winship, 397 U.S. 358, 364 (1970). Accordingly, jury
instructions that relieve the Government of this burden violate
a defendant’s due process rights. Carella v. California, 491
U.S. 263, 265 (1989). The inquiry is whether the court’s
instruction constituted a mandatory presumption by “directly
foreclos[ing] independent jury consideration of whether the facts
proved established certain elements of the offense with which
[the defendant] was charged.” Id. at 266.
In this case, Korey was charged with violating 18 U.S.C.
§ 924(c)(1)(A), which punishes “any person who, during and in
8
relation to any crime of violence or drug trafficking crime . . .
uses or carries a firearm.” The drug trafficking crime charged
by the Government in relation to § 924 here is conspiracy to
distribute cocaine under 21 U.S.C. §§ 846 and 841(a)(1).
It is clear from our prior cases that an important element
of a conspiracy to distribute cocaine is that the parties shared a
common goal. In United States v. Cartwright, 359 F.3d 281 (3d
Cir. 2004), for example, we considered a convicted criminal
defendant’s claim that the guilty verdict against him for
conspiracy to distribute cocaine was not supported by sufficient
evidence. Describing what the evidence must prove, we
explained that “[o]ne of the requisite elements the government
must show in a conspiracy case is that the alleged conspirators
shared a ‘unity of purpose’, the intent to achieve a common
goal, and an agreement to work together toward the goal.” Id.
at 286 (quoting United States v. Wexler, 838 F.2d 88, 90-91 (3d
Cir.1988)); see also United States v. Gibbs, 190 F.3d 188, 197
(3d Cir. 1999) (“To prove a conspiracy, the government must
establish a unity of purpose between the alleged conspirators, an
intent to achieve a common goal, and an agreement to work
together toward that goal.”). In other words, because the
conspiracy charged here is a conspiracy to distribute cocaine,
the Government must prove beyond a reasonable doubt that
Korey shared a goal with his co-conspirators to further the
purpose of distributing cocaine.
The jury instructions, however, did not require the jury
to find a unity of purpose. Rather, the District Court instructed
jurors that:
The Government in this case alleges that
Mr. Korey committed the crime of conspiracy to
9
distribute cocaine and did so in two separate
ways.
First, when he agreed to accept drugs from
Ray Erfort as payment for the murder of Billy
Kuhn. I instruct you that if you find that the
defendant agreed to accept cocaine in payment for
killing Billy Kuhn, that is a conspiracy to
distribute cocaine.
And, second, the Government alleges that
Mr. Korey agreed to murder Billy Kuhn for Ray
Erfort in order to avenge Kuhn’s theft of Erfort’s
cocaine. I instruct you that if you find that
defendant agreed to murder Billy Kuhn for Ray
Erfort in order to avenge Kuhn’s theft of Erfort’s
cocaine, that is also conspiracy to distribute
cocaine.2
Under these instructions, all the jurors had to find was that
Korey agreed to accept cocaine in payment for killing Kuhn.
They did not have to consider whether the Government met its
burden of proof in establishing a unity of purpose. Their verdict
on the conspiracy charge was to be the same whether or not they
believed the government had proven beyond a reasonable doubt
2
Although the instructions provide two routes for the jury
to find that Korey was involved in a conspiracy to distribute
cocaine, we are unable to say on which one the jury based its
conviction. Because we find that the first is legally flawed, we
do not discuss the second – though we do note in passing that it
seems to suffer from the same defect as the first.
10
that Korey and Erfort shared a common goal to distribute
cocaine. This is certainly at odds with the definition of
conspiracy we expressed in Cartwright. 359 F.3d at 286.
Defending the instructions, the Government argues that
the statements at issue do not constitute error because other parts
of the instructions discussed the complete definition of a
conspiracy. Indeed, the instructions did provide a general
definition of conspiracy, including an explanation that “[t]here
must be intentional participation by the defendant in the specific
conspiracy charged, with a view to furthering the common
design and purpose of the conspiracy.” However, this complete
and correct statement of the law does not overcome the language
that followed, which amounted to an improper mandatory
presumption. Even if jurors took to heart the general definition
of a conspiracy, they were instructed that if they found “that the
defendant agreed to accept cocaine in payment for killing Billy
Kuhn, that is a conspiracy to distribute cocaine.” Regardless of
what the District Court may have advised elsewhere, this
statement “directly foreclosed independent jury consideration of
whether the facts proved established certain elements of the
offense with which [the defendant] was charged.” Carella, 491
U.S. at 266. Although the jury was told that a conspiracy
required a shared purpose, it was also told that Korey’s actions
amounted to participation in a conspiracy whether or not they
believed that he shared the goal of furthering Erfort’s cocaine
distribution operation. If the jurors believed that he agreed to
accept cocaine in exchange for killing Kuhn, that was the end of
their inquiry.
The Government also contends that the instructions were
not faulty because by agreeing to accept cocaine as payment for
11
murdering Kuhn, Korey was serving an enforcement role in the
conspiracy to distribute cocaine. As an initial matter, there is an
important difference between considerations of the sufficiency
of evidence and the propriety of jury instructions. Even if there
was ample evidence that Korey shared a common goal to
advance Erfort’s scheme to distribute cocaine, the jury
instructions must not command the jury in a manner that
forecloses their consideration of that element of the crime.
Carella, 491 U.S. at 266.
But assuming the Government is arguing not about the
sufficiency of evidence, but that the jury instructions were
correct as a matter of law because the mandatory presumption
was proper, the law on point simply does not comport with the
Government’s argument. Although we have recognized that an
enforcement role is part of a conspiracy to distribute drugs, we
have always rested on a showing that the enforcer shared the
goal of the overarching drug-distribution conspiracy. In United
States v. Gonzalez, 918 F.2d 1129 (3d Cir. 1991), for example,
we considered, in the context of a challenge to the sufficiency of
evidence supporting a conviction, whether a defendant was part
of a conspiracy to distribute cocaine based on serving as the
“muscle” for the operation. As we explained:
Considering the placement of [the defendant’s]
gun, the fact that he was in the kitchen with [the
co-conspirators] at the time of the arrest and his
act of blocking the Detective’s way out of the
apartment, it was reasonable for the jury to
conclude that [the defendant] was the “muscle” of
the group and he was there to protect the money
and the cocaine. In addition, [the defendant] was
12
present the night before the transaction when [the
co-conspirators] tried to store the cocaine at
[another’s] apartment, and [one of the co-
conspirators] “invited” him to be present at the
apartment again the next day while the transaction
was taking place in the back bedroom.
Id. at 1136. In other words, based on the circumstances, a jury
could have inferred that the defendant shared the goal of making
sure cocaine was distributed. The defendant’s specific role was
to provide the “muscle” to protect the transactions, but his
overarching goal was clearly the same as other members of the
conspiracy: distribution of cocaine.
The Government also attempts to rely on the Fifth Circuit
case of United States v. Baptiste, 264 F.3d 578 (5th Cir. 2001).
It claims that Baptiste is analogous to the case before us because
the court found a conspiracy based on the fact that “many of the
appellants responded to the murders of their friends with killing
sprees against the rival group of drug dealers.” Id. at 587.
However, in reviewing a defendant’s conviction to
determine whether there was sufficient evidence of a drug
conspiracy and whether a shooting had occurred in relation to
that conspiracy, the Fifth Circuit relied heavily on circumstantial
evidence of an agreement related to drug distribution that
reflected a shared goal. Id. at 586-88. The court found a
conspiracy based on the fact that (1) “[t]he police repeatedly
arrested most of the appellants for selling drugs in a small area,”
(2) “[w]itnesses testified that a few of the appellants provided
drugs to the others,” (3) one of the appellants “interrupted a drug
sale to an undercover agent,” and (4) “the defendants shared a
motive to profit from drug sales, and they depended upon each
13
other because they warned each other of police activity.” Id. at
587. In the next paragraph, the court mentioned that “[t]here
was considerable other evidence of an agreement,” including the
fact that “many of the appellants responded to the murders of
their friends with killing sprees against the rival group of drug
dealers.” Id. Finally, as to the issue of whether the firearm was
used in relation to the conspiracy, the court explained that the
Government “had to show that these appellants could have used
the weapons to protect or facilitate their drug operation, and that
the weapons were in some way connected with drug
trafficking.” Id. at 588.
If anything, Baptiste further calls into question Korey’s
jury instructions. The Fifth Circuit did not find a conspiracy
simply because many of the defendants had murdered members
of a rival group of drug dealers; rather that point was added after
finding sufficient evidence of a “shared . . . motive to profit
from drug sales” based on a pattern of behavior. Id. at 587.
In the present case, however, the jury instructions
commanded the jury to find a conspiracy without looking into
the overarching context to find a shared motive. All the
Government had to prove was that Korey “agreed to accept
cocaine in payment for killing Billy Kuhn.” The jury was not
permitted to consider whether the Government proved a “unity
of purpose” to distribute cocaine. See Gibbs, 190 F.3d at 197.
Under the instructions, Korey could have been found guilty even
if he only agreed to murder Kuhn to obtain drugs for himself
and had no interest in whether Erfort ever made another drug
sale. It is possible that Korey killed Kuhn because of some
enforcement role he was playing in Erfort’s cocaine distribution
14
scheme.3 But the instructions did not require the jury to so find
in order to convict him. All the Government had to prove was
that Korey accepted drugs as a payment for murdering Kuhn.
This relieved the Government of its burden to prove beyond a
reasonable doubt that there was a shared goal – a vital aspect of
a conspiracy. As such, the jury instructions here violated
Korey’s due process rights. See Carella, 491 U.S. at 265
(1989).
III.
Not all errors mandate reversal. When the error found is
of a constitutional nature, a court may nonetheless uphold the
conviction if the error was “harmless beyond a reasonable
doubt.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). In
other words, the Government must show “‘beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’” Id. (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). As the Supreme Court explained, “[t]he
inquiry . . . is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.” Id.
3
We do not mean to suggest with our holding in this case
that a hit man hired by a drug distribution conspiracy cannot be
a part of the conspiracy. Rather, we simply hold that the jury
instructions in this case did not properly instruct the jury about
all of the elements the Government must prove to establish
participation in such a conspiracy.
15
In Whitney v. Horn, 280 F.3d 240 (3d Cir. 2002), we
reviewed the propriety of the jury instructions used to find a
defendant guilty of first degree murder. The instruction at issue
provided that:
Thus, you cannot find the defendant guilty of first
degree murder unless you are satisfied beyond a
reasonable doubt that the defendant was so
intoxicated at the time that he was incapable of
judging his acts and their consequences or
incapable of forming a willful, deliberate and
premeditated design to kill.
Id. at 254-55. In fact, this was an incorrect statement of the law:
it should have read “was not so intoxicated.” While holding that
this jury instruction as to the defendant’s state of mind was in
error, we observed that “[a] verdict may still stand, despite
erroneous jury instructions, where the predicate facts
‘conclusively establish intent, so that no rational jury could find
that the defendant committed the relevant criminal act but did
not intend to cause the injury.’” Id. at 260 (quoting Rose v.
Clark, 478 U.S. 570, 580-81 (1986)). We went on to determine
that “[f]aced with th[e] evidence we do not understand how any
reasonable jury could have had any doubt about whether
Whitney was too inebriated to form the intent to kill. The
evidence of Whitney’s mental state was nothing short of
overwhelming.” Id. at 261 (emphasis in original). Not only was
there strong circumstantial evidence of his intent based on the
number and severity of the wounds to the victim, but the
defendant had announced his intent to kill. Id. at 259; see also
United States v. Neder, 527 U.S. 1, 17 (1999) (finding that a
failure to instruct the jury as to an element of the charged crime
16
was harmless where evidence concerning the omitted element
was overwhelming and uncontested).
In contrast, we are unable to say that “the guilty verdict
actually rendered in this trial was surely unattributable to the
error.” Sullivan, 508 U.S. at 279. The only evidence presented
by the Government concerning Korey’s participation in the
cocaine distribution conspiracy is that, until Erfort’s arrest in
1998, Kuhn and Erfort had worked together for years as cocaine
and crack dealers, that Korey knew both men and knew they
were drug dealers, and that he considered Kuhn a friend. There
was no evidence that Korey shared the goal of cocaine
distribution at all, or that his involvement with Kuhn and Erfort
was anything other than personal. Even if we were to determine
that this evidence, coupled with Korey’s agreement to accept
cocaine in payment for killing Billy Kuhn, is sufficient to find
that Korey was part of a drug distribution conspiracy, it is far
from overwhelming. We cannot say beyond a reasonable doubt
that the error did not contribute to the verdict rendered. Thus,
the error was not harmless.
IV.
Because we have determined that Korey’s conviction
must be vacated on the basis of the jury instructions, it is
unnecessary for us to reach the remainder of his claims.
However, we do wish to briefly comment on the problematic
apology speech that the District Court allowed the prosecutor to
deliver in the presence of the jury.
In essence, the Court gave the prosecutor an opportunity
to bolster his reputation through personal contact with the jury
that was not similarly afforded to defense counsel. The resulting
17
comments inappropriately injected the character and experience
of the attorney into the trial in a manner that has worried us in
the past. See United States v. Schartner, 426 F.2d 470, 478 (3d
Cir. 1970) (finding remarks that “invite the jury to rely on the
Government attorney’s experience in prosecuting criminals
generally and on the Government attorney’s ‘sincerity’”
constitute reversible error). In the future, district courts would
be well advised to avoid such issues by restricting attorneys to
a simple “I’m sorry” – even one that is delivered after the
verdict is rendered – when responding to questionable conduct.
V.
For the foregoing reasons, we will vacate Jason Korey’s
conviction under 18 U.S.C. § 924, and remand for new
proceedings consistent with this opinion.
United States v. Korey, No. 05-3840
SMITH, Circuit Judge, concurring.
As the majority ably explains, the charge to the jury was
deficient because it failed to instruct on the “unity of purpose”
element required for the predicate drug trafficking offense. See
United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)
(explaining that a drug conspiracy requires that the “government
must establish a unity of purpose between the alleged
18
conspirators, an intent to achieve a common goal, and an
agreement to work together toward that goal”). Like the
majority, I conclude that this deficiency was not harmless and
requires that Korey’s conviction be vacated. I write separately,
however, because my analysis, based on the Supreme Court’s
decision in United States v. Neder, 537 U.S. 1 (1999), diverges
from that of the majority.
In Neder, the Supreme Court determined that the
omission of an essential element from a jury charge is subject to
harmless error review. Id. at 15. Because there was
overwhelming and undisputed evidence regarding the omitted
element, the Court concluded that the deficient jury instruction
was harmless error. Id. at 18. The Court instructed that a
reviewing court must “conduct a thorough examination of the
record. If at the end of that examination, the court cannot
conclude beyond a reasonable doubt that the jury verdict would
have been the same absent the error, for example, where the
defendant contested the omitted element and raised evidence
sufficient to support a contrary finding - it should not find the
error harmless.” Id. at 19.
In my view, Neder teaches that the focus in deciding if
the omission of an instruction on an element of an offense is
harmless is on whether there is any evidence to establish the
omitted element. If there is no evidence on the omitted element,
the deficiency in the instruction is not harmless because a jury
could not have found that the prosecution proved this element
beyond a reasonable doubt. Likewise, if there is evidence on the
19
omitted element and it is contested, the deficiency in the
instruction is not harmless because the jury would need to
deliberate on the evidence and decide whether the element had
been proved beyond a reasonable doubt. However, when there
is evidence on the omitted element that is not disputed, then the
deficient instruction is harmless because “answering the
question of whether the jury verdict would have been the same
absent the error does not fundamentally undermine the purposes
of the jury trial guarantee.” Id. at 19.
Applying Neder to this case compels the conclusion that
the deficient jury instruction was not harmless error because, as
the majority correctly points out, “[t]here was no evidence that
Korey shared the goal of cocaine distribution at all, or that his
involvement with Kuhn and Erfort was anything other than
personal.” Slip op. at 17.
Having concluded that there was no evidence on the
omitted “unity of purpose” element, the analysis should be
complete. The majority, however, goes on to reason that
“[e]ven if we were to determine that this evidence . . . is
sufficient to find that Korey was part of a drug distribution
conspiracy, [the error is not harmless because the evidence] is
far from overwhelming.” Slip op. at 17. In my view, this
additional step is unnecessary and runs afoul of Neder. If the
evidence offered at trial was sufficient to demonstrate the unity
of purpose element and was undisputed, as the majority states,
Neder instructs that the error was harmless. 537 U.S. at 18
(instructing that where there is uncontroverted evidence on the
20
omitted element the error is harmless). For this reason, I cannot
join this aspect of the majority’s analysis and consider it dictum.
21
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Order Michigan Supreme Court
Lansing, Michigan
May 28, 2013 Robert P. Young, Jr.,
Chief Justice
146358 Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,
Plaintiff-Appellee, Justices
v SC: 146358
COA: 311469
Wayne CC: 74-000994
KENNETH A. FOSTER, a/k/a KENNETH
FOSTER, a/k/a KENNETH FOSTER BEY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 24, 2012
order of the Court of Appeals is considered, and it is DENIED, because the defendant’s
motion for relief from judgment is prohibited by MCR 6.502(G).
I, Larry S. Royster, 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.
May 28, 2013
t0520
Clerk
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118 Ga. App. 394 (1968)
163 S.E.2d 859
NORMAN
v.
ALLEN.(two cases). NORMAN
v.
WOOD.(two cases).
43729, 43730, 43731, 43732.
Court of Appeals of Georgia.
Argued June 5, 1968.
Decided September 3, 1968.
Rehearing Denied September 26, 1968.
*395 Neely, Freeman & Hawkins, Joe C. Freeman, Jr., Thomas H. Harper, Jr., for appellant.
Walter W. Calhoun, for appellees.
DEEN, Judge.
1. Norman's car left the highway suddenly and at an angle, crashing into the left front side of plaintiff's Pontiac and actually climbing up onto it from the force of the impact. One witness thought it was about 100 yards away at the time it left the road. No mechanical defect in the car seems to have been involved; therefore the collision resulted from loss of control on the part of the driver, due either to negligence or physical disability. The death certificate showed "cardiac and respiratory arrest due to multiple trauma of head, chest and pelvis." The autopsy report and explanatory deposition of the medical examiner showed physical changes in the body of the deceased suggesting advanced arteriosclerotic cardiovascular disease, with a complete occlusion of one coronary artery. There is testimony that this type of individual is very susceptible to heart attacks. "By the great weight of authority, if not universally, the rule is that there is no liability for negligence or for gross negligence on the part of an operator of a motor vehicle who, while driving, is suddenly stricken by a fainting spell, or loses consciousness from some unforeseen reason. Such loss of consciousness is a complete defense to an action based upon negligence, and if it appears from the plaintiff's evidence he fails to demonstrate a right to recover, making the nonsuit a proper disposition of the matter." Freeman v. Martin, 116 Ga. App. 237, 239 (156 SE2d 511). That the driver of the defendant's vehicle violated traffic regulations and that this resulted in injury to the plaintiff is undisputed. The burden is then placed squarely upon the defendant to offer an explanation of the disaster other than negligence, and he attempts to meet this by showing circumstances raising an inference that the loss of *396 control was due to a sudden seizure resulting from the driver's physical condition. In deciding whether the evidence offered is sufficient to raise a genuine jury issue, the party opposing the motion for summary judgment "is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence." Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (126 SE2d 442). The likelihood of the defendant losing control of the vehicle because of speed or other negligence in driving as opposed to the inference that he had a heart attack resulting from an occlusion of the coronary artery is one which cannot be weighed and decided as a matter of law. The trial court erred in granting the motion for summary judgment.
2. The defendant introduced in evidence a deposition of Dr. Ellis accompanying an autopsy report on Norman, which latter showed it was performed by the Department of Pathology of Emory University and contained the notation: "Gross and final review: Dr. John T. Ellis." The witness testified that the report was made up from the findings at the autoposy and in the regular course of autopsy procedure, and that it was the normal course of business for the resident to make pencil notes and drawings and at a later time dictate the gross description; that deponent served in supervision of the entire matter, went over the work done and notes taken, and personally examined all of the organs. Under this testimony an objection to the entire deposition on the ground that the autopsy was performed by another physician and not from the witness' personal knowledge is without merit. A further objection was on the ground that the conclusions of the witness were based on statements of other persons, facts assumed but not in evidence, and information obtained by another physician. The court overruled the objections except "with respect to conclusions based upon statements of other persons, facts assumed but not in evidence, and particularly the portion of the testimony relating to the cause of death" of Norman. We construe this as an order overruling the objections, which were directed to the deposition as a whole, plus a statement that the trial court was *397 not considering any conclusions of the witness based either on hearsay information or on facts not in evidence, and that in particular this excluded any opinion of the witness as to the cause of death. So construed, the ruling is not error. Hearsay testimony has no probative value in any event. Thompson v. Ammons, 160 Ga. 886 (4), 890 (129 SE 539). But since the autopsy report was properly in evidence as a report prepared in the regular course of business of a medical department whose regular course of business was to prepare such reports, under the supervision of the witness who had made personal examination of the organs involved, any matter of fact in the autopsy report was a proper subject for opinion evidence. Code Ann. § 38-711. This would not include statements of the opinions or diagnosis of others. Knudsen v. Duffee-Freeman, Inc., 95 Ga. App. 872 (99 SE2d 370); Meeks v. Lunsford, 106 Ga. App. 154 (1) (126 SE2d 531). As to hypothetical questions, the answer is not proof that the conclusion reached by the witness applies to or establishes any fact in the case on trial unless it also appears that there is evidence of the salient facts assumed in the hypothetical question. Central R. & Bkg. Co. v. Maltsby, 90 Ga. 630 (5) (16 SE 953). The only hypothetical question posed in the deposition was whether, considering the autopsy findings plus the fact that Norman, driving down the expressway, suddenly drove his automobile across the median into oncoming lanes of traffic and it was further known that he had been seen to slump over the wheel of his vehicle at some point as he came across the median, this would be "consistent with Mr. Norman having had a heart seizure of some sort that would disable him to the extent to cause him not to be able to control his vehicle." The answer was affirmative, but was not, of course, an expression of opinion as to the cause of death. On the other hand, it had no probative value because there was no testimony that Norman did in fact slump over the wheel of the car or do any other act to suggest loss of control. Of his own knowledge the witness said only that he was not in position to come to any overall conclusion as to whether Norman had suffered a heart attack, since a heart attack means necrosis of the heart which takes about 12 hours to develop and no necrosis was observed *398 at autopsy, but that, in his medical opinion, the findings were not inconsistent with his having a spontaneous heart attack of some sort. The rulings on the objections to the deposition are not erroneous because (a) the deposition should not be excluded in its entirety, and (b) with or without objection, the trial court should not consider hearsay evidence, or answers to hypothetical questions not based on facts in evidence.
The grant of the summary judgment was error.
Judgment reversed. Jordan, P. J., concurs. Pannell, J., concurs specially.
PANNELL, Judge, concurring specially. I concur in the opinion as written, but feel that some explanatory remarks are necessary in view of the quotation from Freeman v. Martin, 116 Ga. App. 237, 239 (156 SE2d 511). As I see it, the rule stated does not remove liability for negligence, but, where the loss of control is caused solely by the unforeseen physical attack on the consciousness of the driver and this is the sole proximate cause of the injury complained of, and the attack causing the unconsciousness could not have been foreseen by the driver in the exercise of ordinary care, there is no negligence. If the driver also be negligent in some way and this negligence is a contributing proximate cause to the injuries complained of, the driver may be liable irrespective of the sudden physical attack causing unconsciousness. The rule stated, therefore, should be based upon the absence of negligence rather than non-liability for negligence under the circumstances.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3569
___________
SANDRO VUKOSAVLJEVIC,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A070-412-835)
Immigration Judge: John P. Ellington
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2019
Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
(Opinion filed: July 23, 2019)
___________
OPINION*
___________
PER CURIAM
Sandro Vukosavljevic petitions for review of a final order of removal. For the
reasons that follow, we will deny the petition for review.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Vukosavljevic, a native and citizen of Bosnia-Herzegovina, was admitted as a
refugee to the United States, and he was granted lawful permanent resident status,
effective June 16, 1994. In 2015, Vukosavljevic was convicted in the United States
District Court for the District of Maine of two counts of unlawful use of a communication
facility to commit a drug trafficking crime, in violation of 21 U.S.C. §§ 843(b), (d), for
which he was sentenced to a term of imprisonment of 30 months. On October 10, 2017,
the Department of Homeland Security charged him in a Notice to Appear as removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), in that after admission he was convicted of an
aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(B) (illicit trafficking in
controlled substance); and 8 U.S.C. § 1227(a)(2)(B)(i), in that after admission he was
convicted of any law relating to a controlled substance.
Initially, Vukosavljevic argued that his convictions were not drug offenses or
aggravated felonies. The Immigration Judge sustained the charges. Vukosavljevic
applied for relief from removal, claiming that he would be harmed by the Bosnian-
Herzegovinian government and/or Muslims who dominate that government because of
his Serbian-Orthodox religion. At a hearing on June 6, 2018, Vukosavljevic testified that
he is a practicing Serbian-Orthodox Christian and that he came to the United States
because of the war in Bosnia. He testified that, as a child, he migrated from Bosnia to
Herzegovina and was mistreated there on account of his religion. His family eventually
migrated to Croatia, which is predominantly Catholic. His family was moved to the
Usuwit village, where they lived “among really racist people when it came to the religion
and the beliefs.” His parents eventually sought assistance from the United States
2
embassy in Croatia and were granted refugee status. His parents and his brother Sasa are
now United States citizens, but he is not.
Vukosavljevic testified that the majority of Bosnians are Muslim, and that the war
in 1992 was a religious civil war between Serbians, Catholics, and Muslims, fighting
each other to claim a part of the country as their own. He has not returned to Bosnia
since 1994 because members of his family were killed or their whereabouts are now
unknown. He testified that he suffers from post-traumatic stress disorder due to what he
experienced as a child during the war. He fears that Muslims would harm him because of
his religion if he returns to Bosnia-Herzegovina, because, if you are not a member of the
Muslim majority, you may be threatened, beaten, or even killed. He testified that he has
spoken to people who have visited Bosnia and they report that residents there still believe
the “old beliefs,” and obsess about past injustices and territorial grievances. He believes
that the government would turn a blind eye to any torture of Serbian Orthodox Christians
by Muslims. Vukosavljevic’s brother Sasa also testified on his behalf. Notably, he
testified that things have not changed since the war, and that you have to watch where
you go because your last name is an indicator of your religious affiliation.
On June 6, 2018, the IJ denied relief. The IJ found that Vukosavljevic’s
conviction for using a communication device to facilitate drug transactions involving
2,500 grams of cocaine was a “particularly serious crime,” and thus denied his
applications for withholding of removal. The IJ based this conclusion on the Presentence
Investigation Report (“PSR”) prepared in Vukosavljevic’s criminal case, which stated
that the amount of cocaine involved in his offenses totaled 2,500 grams, and on his not
3
insignificant 30-month term of imprisonment. The IJ further determined that
Vukosavljevic did not meet his burden to show it is more likely than not that he would be
tortured in Bosnia-Herzegovina. In this regard, the IJ observed that Vukosavljevic’s fears
were based on the conditions that existed when he was a young child, that he had not
proffered evidence to show that he likely would be tortured upon his return Bosnia-
Herzegovina, and that there was a part of the country where he would be safe.
In denying relief, the IJ noted that the 2017 and 2016 Religious Freedom Reports
indicated that the constitution speaks of two country entities -- Bosnia-Herzegovina (the
Federation) and the Republika Srpska – and provides for freedom of religion. Notably,
the Republika Srpska constitution establishes the Serbian-Orthodox church as the church
of the Serbian people and other persons of the Orthodox religion, and a provision
provides for the representation of the three major ethnic groups. The IJ also observed
that the majority of Serbian-Orthodox live in Republika Srpska, and that most Catholics
and Muslims live in the Federation. The IJ pointed out that the Dayton Peace Accord
serves as the country’s constitution and provides for freedom of religion, thought, and
conscience. The IJ further found that the 2017 State Department Country Report notes
that civilian authorities maintain effective control over security forces and law
enforcement agencies, and that a State Department travel warning submitted on
Vukosavljevic’s behalf did not indicate that religious wars and ethnic cleansing are
currently happening, but instead, discussed terrorism and land mines. The IJ found no
evidence in the Country Report to indicate that Vukosavljevic will likely suffer torture in
Bosnia-Herzegovina.
4
Vukosavljevic appealed to the Board of Immigrations Appeals, challenging the
IJ’s determination that he was ineligible for withholding of removal because he had been
convicted of a crime that qualifies as “particularly serious,” see 8 U.S.C. §
1231(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)(2); and arguing that the IJ erred in
determining that he did not show that it was more likely than not that he would be
tortured in Bosnia-Herzegovina.1 He also sought a remand based on a claim of
ineffective assistance by his former counsel in violation of his right to due process.
Vukosavljevic did not challenge the IJ’s determination that his 2015 convictions were
aggravated felonies that rendered him removable pursuant to § 1227(a)(2)(A)(iii) and §
1127(a)(2)(B)(i).
The Board held that Vukosavljevic’s 2015 convictions – which, the Board noted,
involved transporting and distributing a large quantity of cocaine -- did not warrant
departing from the general rule that trafficking in a controlled substance is presumptively
a “particularly serious” crime. The Board also agreed with the IJ that Vukosavljevic
proffered insufficient objective evidence to show that he qualified for deferral of removal
under the Convention Against Torture. The Board would not consider Vukosavljevic’s
due process claim of ineffective assistance of counsel because he had failed to satisfy the
procedural requirements for bringing such a claim, as set forth in Matter of Lozada, 19 I.
& N. Dec. 637 (BIA 1988).
1
Vukosavljevic conceded that his aggravated felonies rendered him statutorily ineligible
for asylum under 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i).
5
Vukosavljevic timely petitions for review. We generally have jurisdiction to
review final orders of removal. See 8 U.S.C. § 1252(a)(1). In this case, however,
because Vukosavljevic is removable for having been convicted of an aggravated felony,
our jurisdiction is limited to reviewing constitutional claims and questions of law. Id. at
§ 1252(a)(2)(C)-(D); Green v. Att’y Gen. of U.S., 694 F.3d 503, 506 (3d Cir. 2012). We
previously denied Vukosavljevic’s motion for a stay of removal.
We will deny the petition for review. Where, as here, the Board agrees with the
decision and analysis of the IJ while adding its own reasoning, we review both decisions.
See Sandie v. Att’y Gen. of U.S., 562 F.3d 246, 250 (3d Cir. 2009). Vukosavljevic first
contends that the agency erred when it found that his two convictions pursuant to 21
U.S.C. §§ 843(b) and (d) were “particularly serious crimes,” and thus that he is
disqualified from seeking withholding of removal. Petitioner’s Informal Brief, at 4, 6-9.2
He contends that the agency failed to conduct an individualized determination of this
legal issue based on the particular facts of his case.
We conclude that the agency committed no legal error regarding Vukosavljevic’s
ineligibility for withholding of removal under either the statute or the Convention Against
Torture. An alien who has been convicted of a “particularly serious” crime is not eligible
for asylum, 8 U.S.C. § 1158(b)(2)(A)(ii), or withholding of removal, 8 U.S.C. §
1231(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)(2). Under Board precedent, an aggravated
2
Vukosavljevic does not contest that that his convictions pursuant to § 843(b), (d) are
aggravated felonies as defined by § 1101(a)(43)(B). The issue is thus not preserved and
we decline to address it. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
6
felony involving drug trafficking is presumptively a “particularly serious” crime. Matter
of Y-L-, A-G-, & R-S-R-, 23 I. & N. Dec. 270, 274 (A.G. 2002).3 The Attorney General
has set forth six criteria that justify a departure from the presumption that a drug
trafficking aggravated felony is a particularly serious crime: (1) the offense involves a
very small quantity of illegal drugs; (2) a very modest amount of money was paid for the
drugs in the offending transaction; (3) the applicant was merely peripherally involved in
the criminal activity, transaction, or conspiracy; (4) there is an absence of any violence or
threat of violence; (5) there is an absence of any organized crime or terrorist organization
involvement, and (6) there is an absence of any adverse or harmful effect of the activity
on juveniles. Id. at 276-77.
Vukosavljevic claims that he was only convicted of purchasing one gram of
cocaine under each count for a price of $80.00 each. Petitioner’s Informal Brief, at 7. He
further contends that he used the cocaine to self-medicate and that he shared the drugs,
but did not sell them. Id. at 7-8. The IJ, however, found, based on the Presentence
Investigation Report, that the offense involved a large quantity of cocaine – 2.5
kilograms. A.R. 435. See Alaka v. Att’y Gen. of U.S., 456 F.3d 88, 105 3d Cir. 2006)
(Immigration Judge may properly consider factual findings in Presentence Investigation
Report). See also Denis v. Att’y Gen. of U.S., 633 F.3d 201, 215 (3d Cir. 2011)
3
Under § 1231(b)(3)(B)(iv), an alien who has been convicted of an aggravated felony for
which he has been sentenced to an aggregate term of imprisonment of at least 5 years
“shall be considered to have committed a particularly serious crime.” Vukosavljevic’s
sentence, however, was less than 5 years’ imprisonment, and thus that categorical
prohibition is not applicable here.
7
(approving Board’s use of conviction records and reliable sentencing information). The
IJ further found that Vukosavljevic was a dealer and not just a user, and the Board
agreed.
We see no misapplication of the Y-L- factors where, as here, a large quantity of
cocaine was involved, and Vukosavljevic, as noted in the Presentence Investigation
Report, was by no means only peripherally involved in dealing cocaine. Vukosavljevic
did not meet his burden to establish that the transaction involved a very small quantity of
drugs, or that his involvement in the criminal activity was merely peripheral. See Y-L-,
23 I. & N. Dec. at 277 (“only if all of these criteria” are demonstrated by the alien would
departure from the presumption be appropriate). The agency thus committed no legal
error in determining that Vukosavljevic is ineligible for withholding of removal under
either the statute or the Convention Against Torture.
Vukosavljevic next contends that the agency used an improper legal standard for
governmental acquiescence when considering his deferral of removal claim under the
Convention Against Torture. Petitioner’s Informal Brief, at 6, 9-11. To qualify for
deferral of removal under the Convention Against Torture, an applicant must show that
he is “more likely than not” to be tortured. 8 C.F.R. § 1208.16(c)(2). “Torture is defined
as any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person … when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person acting in an
official capacity.” Id. at § 1208.18(a)(1).
8
An applicant’s eligibility for deferral of removal under the CAT is a factual
determination that is ordinarily reviewed for substantial evidence, but because
Vukosavljevic is subject to removal based on an aggravated felony, our review is limited
to colorable constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D);
Green, 694 F.3d at 506. The IJ concluded that Vukosavljevic did not show that anything
rising to the level of torture would happen to him upon returning to Bosnia-Herzegovina;
his fears were based on what happened to him as a child, and the current country
conditions evidence did not support his fear of torture. The Board agreed. This
determination is unreviewable. See Kaplun v. Att’y Gen. of U.S., 602 F.3d 260, 271 (3d
Cir. 2010). To establish acquiescence, an applicant must demonstrate that, prior to the
activity constituting torture, a public official was aware of it and thereafter breached the
legal responsibility to intervene and prevent it. 8 C.F.R. § 1208.18(a)(7). The applicant
can meet this standard even where the government does not have actual knowledge of the
torturous activity if he “produc[es] sufficient evidence that the government … is willfully
blind to such activities.” Silva-Rengifo v. Att’y Gen. of U.S., 473 F.3d 58, 65 (3d Cir.
2007). See also Myrie v. Att’y Gen. of U.S., 855 F.3d 509, 516 (3d Cir. 2017). The
agency did not base its denial of deferral of removal on the issue of governmental
acquiescence and did not misapply this standard in Vukosavljevic’s case.
For the foregoing reasons, we will deny the petition for review.
9
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Subsets and Splits