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Case: 09-60854 Document: 00511416307 Page: 1 Date Filed: 03/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 18, 2011
No. 09-60854
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HASSON CHANDLER, also known as Hice; ZAKIYA ONEAL,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 1:08-CR-83-4
Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
At issue is whether the evidence at trial was sufficient for a reasonable
jury to find Hasson Chandler and Zakiya Oneal guilty of conspiracy. In addition,
Oneal appeals her sentence, arguing that the district court clearly erred by
applying a four-level enhancement based on a finding that she was the
“organizer or leader” of the group. We AFFIRM.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-60854 Document: 00511416307 Page: 2 Date Filed: 03/18/2011
No. 09-60854
I
Hasson Chandler, Zakiya Oneal, and three other co-defendants were
charged in a multi-count amended indictment with conspiracy to travel in
interstate commerce “to commit crimes of violence, to wit, bank robbery,
attempted bank robbery, kidnapping, attempted kidnapping, and extortion.”
The indictment also charged Oneal with extortion and charged Chandler with
attempted bank robbery, attempted kidnapping, traveling in interstate
commerce to commit a crime of violence, namely extortion, and possession of a
firearm during and in relation to a bank robbery.
The three other co-defendants pleaded guilty to various charges of the
indictment and testified against Chandler and Oneal at the ensuing jury trial.
Specifically, Jose Brown pleaded guilty to attempted bank robbery and
possession of a firearm; Vincent Farley pleaded guilty to attempted bank
robbery and possession of a firearm; and Cierra Nations pleaded guilty to
conspiracy to commit bank robbery and kidnapping.
After a jury trial, the district court entered a directed verdict of acquittal
in favor of Chandler with respect to the bank robbery charge.1 The jury found
Chandler and Oneal guilty of the conspiracy count and not guilty as to the
remaining counts. The following evidence was introduced at the trial relevant
to the conspiracy count.
Columbus, Mississippi trip
On June 22, 2008, Oneal, Farley, and Brown drove from Tuscaloosa,
Alabama, to Columbus, Mississippi, and then to the home of Butch Dollar, a
1
Chandler contends that since the jury acquitted him of attempted bank robbery, he
cannot be guilty of conspiracy to commit that same crime. However, Chandler was acquitted
of a different bank robbery—the one in Columbus— than the one that forms the basis of the
conspiracy conviction—the one in West Point. The government mistakenly charged Chandler
with attempting to rob the bank in Columbus, a scheme he had no part in. The conspiracy
count in the indictment did not name a specific bank, so the government was still able to
proceed on that count without reindictment.
2
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No. 09-60854
local banker. According to her roommate Rashonda Bolden, Oneal had traveled
to Columbus with the intention of robbing a bank. Her plan had been for her
and “her friends” to enter the banker’s house under false pretenses, cut the
banker's phone lines, kidnap the banker and his wife, take them to the bank,
and force the banker to open the bank vault. The banker and his wife would
then be left in the vault.
However, Brown testified that Oneal told him that they were going to
Dollar’s house to pick up bond money for her bondsman. Brown accompanied
Oneal into the house while Farley remained in the car. At Oneal’s direction,
Farley parked the car on a side street. Oneal was able to enter Dollar’s house
by pretending to have financial documents from Dollar’s son’s friend that she
needed to deliver to Dollar. Brown went to the bathroom while Oneal spoke
with Dollar and showed him an envelope that was supposed to contain the
financial documents. When Dollar noticed the envelope was empty, Oneal
explained that she must have left the documents on a desk at home, and she,
along with Brown, left the house. After they left, Dollar noticed that the
window in the bathroom had been opened. A few minutes later, Dollar, who
had become suspicious of Oneal and Brown, went outside to get some of his
belongings, including a pistol, from his truck. He saw Oneal and Brown
standing across the street, and he asked them if they needed a ride. They
declined his offer and turned to walk away. Dollar retrieved his pistol from the
truck and returned to the house.
Bolden testified that Oneal decided not to follow through with her plan
when she saw that the banker had a gun. Bolden said that she did not
immediately tell the police about Oneal’s plan because Oneal said “stuff . . . all
the time[,]” and Bolden did not believe Oneal.
West Point, Mississippi trip
3
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No. 09-60854
The following night, on July 23, 2008, while drinking at the Cheap Shots
bar in Tuscaloosa with Brown and Farley, Oneal discussed another plan to
stage a kidnapping and bank robbery. They agreed to go to West Point,
Mississippi, to the home of a banker named Peter Hodo, have Hodo take them
to the bank where he worked, and open the safe. Oneal told the others that
Hodo was a participant in the plan. According to Brown, Oneal also told them
that Hodo had a wife, that the wife did not know about the plan, and that Hodo
wanted them to make the robbery look real to his wife. Oneal told Brown and
Farley that they would get millions of dollars from the bank.
The plan involved a fourth conspirator, Cierra Nations, knocking on
Hodo’s door and saying that her car had broken down. Farley believed Nations
was chosen to knock on the door because she was white and would draw less
attention in Hodo’s neighborhood. After Nations knocked on the door, Hodo
would come out to the car, and they would then all proceed to the bank. Brown
testified that, if Hodo’s wife was at the house when they got there, Brown and
Farley would take the wife captive, and tie her up using duct tape. Brown also
testified that if Hodo’s wife did not cooperate, they were going to take her to the
bank with them, whether she wanted to go or not. Farley testified that they
came up with the specifics of how to make the robbery look real for the wife
while they were at Bolden’s house on July 24, 2008.
On July 24, 2008, before the plan could be implemented, Oneal was
arrested and detained by a bail bondsman. She contacted the others and
instructed them to proceed with the plan. Brown went to the bail bondsman’s
office to meet with Oneal sometime that evening and to retrieve Oneal’s cell
phone, which was supposed to have a map to Hodo’s house on it. When Brown
found no map on the phone, Oneal gave him the address, and he went to
Bolden’s house to print a map off of Bolden’s computer. Needing a dependable
car to get from Tuscaloosa to West Point, Brown and Farley recruited Chandler,
4
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No. 09-60854
who agreed to the use of his car and to participating in the plan. Brown told
Chandler the plan was a “staged heist.” Nations testified that the plan was
discussed more than one time in more than one location, that Chandler was
present when the plan was discussed, and that he agreed to the plan. Nations
also stated that when they got in the car to go to West Point, everyone in the car
knew about the plan and what was going to happen when they got to West
Point.
Later that night, Brown, Farley, Nations, and Chandler left Tuscaloosa
en route to West Point. They brought with them a loaded 9mm pistol that they
had obtained from a pawn shop earlier that day, ski masks, and duct tape.
Brown testified that they brought the gun to make Hodo’s wife think the
robbery was real. Farley also stated that they brought the gun to show to the
wife if she did not cooperate. They also had ski masks to hide their identity and
duct tape to tie up the banker and his wife. Nations testified that the things
they brought with them to West Point were to be used as “props.” Nations also
testified, however, that the purpose of the gun was to scare someone if they
needed to and that they would have pointed it at Hodo’s wife. Everyone in the
car knew that they were bringing a gun to Hodo’s house. Moreover, Chandler
played with one of the ski masks while they were on the way to West Point.
Nations testified that Chandler actually put one of the ski masks on while he
was in the car.
While the group was on their way to West Point, Oneal called them to
inquire as to their progress, to give them directions to Hodo’s house, and to
encourage them to hurry up and carry out the plan. Oneal told Brown that
Hodo was waiting for them. As the night wore on, Brown testified that he
spoke to Farley in the car about whether the plan “sounded too easy,” which
made him “believe that it was fake.” According to Brown, Farley agreed, noting
that “I don’t think it’s for real.” Nations also testified that the plan “didn’t seem
5
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No. 09-60854
realistic,” and in response to a question as to whether she really believed that
the banker was in on it, she replied, “Not really.” The group got lost along the
way because they could not follow the map that they had printed out. In fact,
they ended up asking a Highway Patrolman for directions. Running short on
gas and unable to locate the banker’s house, the group left West Point and
returned to Tuscaloosa.
Hodo testified that he did not know any of the defendants, except Oneal,
whom he met once at the bank when she expressed an interest in buying a
house from one of the bank’s customers. While she was at the bank, she went
into his personal office where she could have seen pictures of his wife. Hodo
gave her a business card that contained his full name, his cell phone number,
and the address of the bank. He was not involved in any plan to steal money
from the bank.
After the jury returned their guilty verdicts as to the conspiracy count,
the probation officers prepared presentence reports for Chandler and Oneal and
included a four-level enhancement to Oneal’s offense level pursuant to §
3B1.1(a) for her role as an organizer or leader of the conspiracy. Oneal objected
to the enhancement, but the objection was overruled. Chandler and Oneal were
each sentenced to 60 months in prison. This appeal followed.
II
The sufficiency of the evidence is reviewed to determine whether any
rational trier of fact could have found that the evidence established guilt beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979). The
standard of review is, therefore, whether a rational trier of fact could have
found that the evidence established the essential elements of the offense beyond
a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998). This court considers the evidence in the light most favorable to the
government, drawing all reasonable inferences and credibility choices made in
6
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No. 09-60854
support of the verdict. Id. The court looks to whether the trier of fact made a
rational decision, rather than whether it correctly determined the defendant’s
guilt or innocence. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995).
The federal conspiracy statute, 18 U.S.C. § 371, provides that if “ . . . two
or more . . . persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons do any act to effect the
object of the conspiracy, each shall be fined under this title or imprisoned not
more than five years, or both.”
Thus, to convict a defendant of a conspiracy charge, the government is
required to prove three elements beyond a reasonable doubt: (1) an agreement
between the defendant and one or more persons, (2) to commit a crime, and (3)
an overt act by one of the conspirators in furtherance of that agreement. United
States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006). The government is not
required to provide direct evidence of the conspiracy. United States v. Holmes,
406 F.3d 337, 351 (5th Cir. 2005). Circumstantial evidence is enough to prove
an agreement, and minor participation may support a conviction. United States
v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002). “An agreement may be
inferred from concert of action, voluntary participation may be inferred from a
collection of circumstances, and knowledge may be inferred from surrounding
circumstances.” Id. (internal punctuation omitted). “A [co-]conspirator need not
know all the details of the unlawful enterprise, so long as he knowingly
participates in some way in the larger objectives of the conspiracy.” United
States v. Davis, 226 F.3d 346, 354 (5th Cir. 2000).
The essence of conspiracy is the agreement to commit a particular crime.
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003). The Supreme Court
has long held that “to sustain a judgment of conviction on a charge of conspiracy
to violate a federal statute, the Government must prove at least the degree of
7
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No. 09-60854
criminal intent necessary for the substantive offense itself.” United States v.
Feola, 420 U.S. 671, 686 (1975); Ingram v. United States, 360 U.S. 672 (1959);
see also United States v. Binetti, 552 F.2d 1141, 1142 (5th Cir. 1977) (reversing
a defendant’s conviction for conspiracy to possess and distribute cocaine when
the defendant did not conspire to sell cocaine, but rather a harmless, lawful
substance that looked like cocaine). It is part of the government’s burden to
prove that “‘the intended future conduct [the conspirators] agreed upon includes
all the elements of the substantive crime.’” United States v. Pinckney, 85 F.3d
4, 8 (2d Cir. 1996) (quoting United States v. Rose, 590 F.2d 232, 235 (7th Cir.
1978)); see also United States v. Foote, 413 F.3d 1240, 1250 (10th Cir. 2005);
United States v. Warshawsky, 20 F.3d 204, 209 (6th Cir. 1994); United States
v. Vaglica, 720 F.2d 388, 391 (5th Cir. 1983).
Therefore, we must ask, drawing all inferences in favor of the
government, “whether a rational trier of fact could have found that the evidence
established the essential elements of [any of the offenses] beyond a reasonable
doubt,” such that there was an agreement between the defendants and one or
more persons to commit any of the crimes as charged in the indictment. See
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). After
determining whether there was an agreement, the court may then consider
whether there was an overt act in furtherance of that agreement.
Here, the jury convicted Oneal and Chandler of conspiracy (Count One).
Count One of the amended indictment reads, “Defendants did knowingly and
willfully conspire with each other and with others known and unknown to the
Grand Jury, to travel in interstate commerce with intent to commit crimes of
violence, to-wit, bank robbery, attempted bank robbery, kidnapping, attempted
kidnapping and extortion, in violation of 18 U.S.C. §§ 2113(a) and (d), 18 U.S.C.
§§ 1201(a) and (d), 1952(a)(2) and 1951.” As the jury instructions noted, the
government had to prove beyond a reasonable doubt the conspiracy, as well as
8
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No. 09-60854
the substantive elements of each crime, as indicated in the indictment. The
amended indictment also discusses the “Manner And Means Of The
Conspiracy”:
1. It was part of the conspiracy that [defendants], would and did
devise a plan and scheme to rob banks in Columbus and West
Point, Mississippi.
2. It was further part of the conspiracy to kidnap an employee
of the bank and to take him to the bank to aid and assist
them in the robbery.
3. It was further a part of the conspiracy to threaten the safety
and well-being of a member of the bank employee’s family in
order to extort or force his cooperation and assistance in
robbing the bank.
The jury was instructed that, to convict a defendant of bank robbery, the
government is required to prove that an individual or individuals “by force and
violence, or by intimidation, t[ook], or attempt[ed] to take, from the person or
presence of another . . . any property or money or any other thing of value
belonging to, or in the care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association.” 18 U.S.C. § 2113(a).2
Based on the evidence offered at trial, a rational trier of fact could have
concluded that Oneal and Chandler did agree with one or more persons to
commit bank robbery. Oneal devised the plan, lied to everyone about Hodo’s
willing participation, provided directions to Hodo’s house, and called them on
the road in order to encourage them to proceed as planned. Oneal contends that
there is no conspiracy because everyone, except her, believed that Hodo was in
on the plan to rob the bank. The record, however, reflects that at some point,
three of the coconspirators—Brown, Farley, and Nations—stopped believing
2
We note that § 2113(a) sets out two possible ways to commit bank robbery, and only
the first requires the use of force or violence. The second simply requires proof that a
defendant “enters or attempts to enter any bank . . . with intent to commit in such bank . . .
any felony affecting such bank . . . or any larceny”—without requiring use of force or violence.
The jury in this case was only instructed on the first form of bank robbery.
9
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No. 09-60854
Oneal that Hodo was in on the plan and continued to proceed nonetheless. As
soon as they stopped believing Oneal, a conspiracy formed. Oneal’s plan
involved threatening Hodo and his wife with a gun, and tying up Hodo’s wife,
thereby using “force” and/or “intimidation” to take money from a bank.
Therefore, there is sufficient evidence for a reasonable jury to find that there
was an agreement between Oneal and one or more persons to commit bank
robbery.
Even if the other coconspirators believed Oneal and thought Hodo was an
inside man the entire time, the record supports an inference that the
coconspirators agreed to use force, violence, or intimidation with respect to Mrs.
Hodo. Brown testified that they had contemplated what to do if “Mrs. Hodo did
not cooperate”— tie her up with duct tape, use a gun to scare her, and “bring
her along with us” “to the bank and leave her in the bank with Mr. Hodo.”
As for Chandler, a rational jury could have found that he was aware of the
plan and knew that it involved using force and intimidation to rob a bank.
Chandler knew they were bringing a loaded 9mm pistol with them, and he
knew about the ski masks; Nations had noted that she even observed Chandler
trying on a ski mask. Brown testified that he had told Chandler that it was a
“staged heist” and that they had all expected Mrs. Hodo to be there and “we
were going to tape her wrists up and her legs up.” Brown also testified that the
plan was to take Mrs. Hodo to the bank against her will if she did not cooperate.
In addition, Nations testified that Chandler was present when the plan was
discussed, and that he agreed to the plan. Because Brown testified that the
plan contemplated tying up Mrs. Hodo and bringing her to the bank against her
will, and because both Brown and Nations testified that Chandler was present
when the plan was discussed, there was sufficient evidence in the record for a
reasonable jury to find that Chandler agreed with one or more persons to use
10
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No. 09-60854
force, violence or intimidation to take money from a bank—that is, conspire to
commit bank robbery.3
In addition to the evidence related to bank robbery, there is also evidence
in the record to show that Oneal conspired to commit kidnapping. To prove an
offense of kidnapping pursuant to 18 U.S.C. § 1201, the Government must
establish “(1) the transportation in interstate commerce (2) of an unconsenting
person who is (3) held for ransom or reward or otherwise, (4) such acts being
done knowingly and willfully.” United States v. Barton, 257 F.3d 433, 439 (5th
Cir. 2001).
The relevant phrase here is “unconsenting.” Appellants contend that
because the amended indictment specifically references “a conspiracy to kidnap
an employee of the bank,” their conspiracy convictions must rest on a finding
that they conspired to kidnap Hodo. If the coconspirators believed that Hodo
was a willing participant, then Hodo would be implicitly consenting to the
“staged” kidnapping, and there could be no conspiracy-to-commit-kidnapping
conviction.
According to the given jury instructions, the jury would have to find that
the defendant(s) knowingly kidnaped or attempted to kidnap “the person
described in the indictment.” See Zafiro v. United States, 506 U.S. 534, 540
(1993) (“[J]uries are presumed to follow their instructions.”) (internal citation
omitted). The person described in the indictment is an “employee of the bank.”
That is, a conviction here could only be based on a finding that appellants
conspired to kidnap Hodo, the banker, not his wife. As discussed above, a
reasonable jury could infer that the other coconspirators, based on Brown’s and
3
In addition, given the testimony of Brown, Farley, and Nations, a reasonable jury
could infer that Chandler also must have known the plan was a fake. For example, Brown
testified that he and Farley expressed doubts about the validity of the plan in the car on the
way to West Point—the same car that Chandler was also traveling in. Although such an
inference would be based on circumstantial evidence, such evidence can be sufficient to prove
an agreement. See Bieganowski, 313 F.3d at 277.
11
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No. 09-60854
Nations’s testimony, did not believe Oneal about Hodo’s supposed consent to
be tied up and taken to the bank. Thus, the jury could find an agreement
between at least some of the conspirators to kidnap Hodo against his will,
satisfying the statutory elements of 18 U.S.C. § 1201.
Finally, there is sufficient evidence in the record to show that Oneal
conspired to commit extortion. Extortion requires “the obtaining of property
from another, with his consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2).
The amended indictment specifically states that it was “part of the conspiracy
to threaten the safety and well-being of a member of the bank employee’s family
in order to extort or force his cooperation and assistance in robbing the bank.”
The issue here is whether, based on the evidence, a reasonable jury could find
that Oneal conspired to threaten the safety of Mrs. Hodo, in order to extort or
force Hodo’s cooperation in robbing the bank. Based on Brown’s and Nations’s
testimony that they did not believe that Hodo was in on the plan, a reasonable
jury could infer that there was agreement to threaten Mrs. Hodo’s safety, using
a gun, in order to extort Hodo to aid them in robbing the bank.
In addition to an agreement between two more or persons to commit a
crime as charged in the indictment, conspiracy also requires an overt act by one
of the coconspirators. See Ingles, 445 F.3d at 838. The overt acts here are listed
in the amended indictment, and include, inter alia, acquiring and possessing “a
roll of duct tape, ski masks and a firearm for the purpose of executing the plan
and scheme.” There was sufficient evidence at trial to show beyond a
reasonable doubt that at least one of the coconspirators committed overt acts
to further the objects of the conspiracy.
III
Oneal also appealed her sentence. The district court applied a four-level
upward enhancement to Oneal’s offense level because of a finding that she was
12
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No. 09-60854
an organizer or leader of the conspiracy under U.S.S.G. § 3B1.1(a). The issue
here is whether the district court’s factual finding was clearly erroneous. See
United States v. Watson, 988 F.2d 544, 550 (5th Cir. 1993) (reviewing district
court’s finding that a defendant was an organizer or leader under the clearly
erroneous standard). Under § 3B1.1(a), a four-level upward enhancement is
authorized “[i]f the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive.” § 3B1.1(a).
In making this determination, a sentencing court should consider: (1) the
exercise of decision making authority; (2) the nature of participation in the
commission of the offense; (3) the recruitment of accomplices; (4) the claimed
right to a larger share of the fruits of the crime; (5) the degree of participation
in planning or organizing the offense; (6) the nature and scope of the illegal
activity; and (7) the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4). Moreover, the factual finding that a defendant
is a leader or organizer need only be supported by a preponderance of the
evidence. United States v. Puig-Infante, 19 F.3d 929. 944 (5th Cir. 1994).
The district judge’s factual finding was not clearly erroneous. The evidence
supported the district court’s finding that Oneal was a leader or organizer of the
conspiracy. The evidence established that plans to rob either the banks in
Columbus and/or West Point were Oneal’s plans, that Oneal provided Hodo’s
address to others involved in the conspiracy, that she directed the others to
continue with the West Point trip even though she was unable to make the trip,
and that she contacted the others on their way to West Point to check on their
progress and to encourage them to continue their efforts to find Hodo’s house.
For the foregoing reasons, we affirm Oneal and Chandler’s convictions for
conspiracy. We also affirm Oneal’s sentence.
AFFIRMED.
13
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83 S.W.3d 819 (2002)
Gerald Allen PERRY, Appellant,
v.
Reginaldo STANLEY, Clovis Gilbert, and Jonathan Pleasant, Appellees.
No. 06-01-00158-CV.
Court of Appeals of Texas, Texarkana.
Submitted March 18, 2002.
Decided July 3, 2002.
*822 Gerald Allen Perry, New Boston, Appellant, Pro se.
Anne L. Morgan, Assistant Attorney General, Austin, for Appellee.
Before GRANT, ROSS, and CORNELIUS,[*] JJ.
OPINION
Opinion by Justice GRANT.
Gerald Allen Perry appeals the dismissal of his medical negligence cause of action against Reginaldo Stanley, Clovis Gilbert, and Jonathan Pleasant. Perry, an inmate in the Barry Telford Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ), sued Stanley, Gilbert, Pleasant, and Lowry Powers for their purported failure to properly diagnose and/or treat an injury to his right hand. Specifically, Perry alleged Gilbert, a vocational nurse with the Telford Unit, and Pleasant and Powers, physician assistants in the same unit, did not act as reasonably prudent practitioners in failing to request an x-ray of his fractured hand and in failing to provide pain medication. Perry alleged their negligence caused him pain and suffering and caused his hand to heal improperly, leading to its permanent disfigurement. Perry also alleged Stanley, as medical director of the Telford Unit, is vicariously liable for the actions of Gilbert, Pleasant, and Powers.
Stanley, Gilbert, and Pleasant each filed an answer and, approximately ten months later, a Motion to Dismiss based in part on Perry's failure to file an expert report in compliance with Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01 (Vernon Supp.2002).[1] The trial court dismissed the suit. Perry filed a Motion for New Trial, which was overruled by operation of law. On appeal, Perry contends that Article 4590i, § 13.01 is unconstitutional and that the trial court abused its discretion in failing to grant his Motion for New Trial.
Appellees contend this court lacks jurisdiction because the judgment is not final. As a general rule, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). A judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final regardless of its language. Id. at 200. But the language of an order or judgment may make it final, even though it should have been interlocutory, if that language *823 expressly disposes of all claims and all parties. Id. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. Id. If the intent to dispose of the case is clear from the order, the order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. Id. A judgment that grants more relief than a party is entitled to is erroneous and subject to reversal, but it is not, for that reason alone, interlocutory. Id.
Stanley, Gilbert, and Pleasant's Motion to Dismiss did not purport to address Perry's claims against Powers, and Powers did not move for a dismissal. In its order granting dismissal, the trial court recites that it considered Stanley, Gilbert, and Pleasant's Motion to Dismiss and that it dismissed Perry's cause of action against only those defendants. From this record, it is clear the trial court did not intend for its judgment to apply to Powers. Therefore, the judgment is not a final judgment.
The situation in this case is different from the situation in Eleven v. Tex. Dep't of Criminal JusticeInst. Div., 69 S.W.3d 341, 343-44 (Tex.App.-Texarkana 2002, no pet.), in which an inmate sued TDCJ and two guards, and the trial court granted TDCJ's motion for summary judgment. Though TDCJ's motion did not address the claims against the guards, the trial court ordered the cause of action dismissed with prejudice and stated that its order was a "final judgment" disposing of "all issues and all parties," and denying "[a]ll relief not specifically granted" and "[a]ll motions not previously ruled on...." Id. at 344. We held the judgment was final but erroneous in that it granted more relief than the guards were entitled to. Id.
Unlike the judgment in Kleven, the trial court's order in the present case does not purport to be a final judgment and does not seek to dispose of "all issues and all parties." Because the judgment is not a final judgment, this court is without jurisdiction over the appeal. See Lehmann, 39 S.W.3d at 206.
Because a partial summary judgment is severable from the remainder of a suit for the purpose of appealing the granting of summary judgment, see, e.g., Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.2001) (per curiam), in the interest of judicial efficiency, we sever Perry's claims against Stanley, Gilbert, and Pleasant from his claims against Powers. See In re Estate of Loveless, 64 S.W.3d 564, 571 (Tex.App.-Texarkana 2001, no pet.); see also Tex.R. Civ. P. 41 ("Any claim against a party may be severed and proceeded with separately.").
Perry first contends the trial court erred in dismissing his suit because Article 4590i, § 13.01 is unconstitutional. Except for actions brought under the Texas Family Code, a suit brought by an inmate who has filed an affidavit or unsworn declaration of inability to pay costs is governed by Chapter 14 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 14.002 (Vernon Supp.2002). Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate either before or after service of process if the court finds the claim is frivolous or malicious. Tex. Civ. Prac. & Rem.Code Ann. § 14.003(a)(2) (Vernon Supp.2002). In determining whether a claim is frivolous or malicious, the trial court may consider (1) whether the claim's realistic chance of ultimate success is slight; (2) whether the claim has no arguable basis in law or in fact; (3) whether it is clear the party cannot prove facts in support of the claim; or (4) whether the claim is substantially similar to a previous claim *824 filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem.Code Ann. § 14.003(b) (Vernon Supp.2002).
The Texas Supreme Court has expressed doubt concerning whether a trial court may appropriately dismiss a suit only because the claim's realistic chance of ultimate success is slight or because it is clear the party cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex.1990). Practically speaking, therefore, the trial court is limited in most cases to determining whether the claim has an arguable basis in law or fact. Bohannan v. Tex. Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex.App.-Austin 1997, writ denied). Where, as here, the trial court dismisses a claim without conducting a fact hearing, we are limited to reviewing only whether the claim had an arguable basis in law. Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579 (Tex.App.-San Antonio 1997, no pet.); Bohannan, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex.App.-El Paso 1996, no writ).
We review a dismissal under Chapter 14 of the Civil Practice and Remedies Code using an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.-Waco 1996, no writ). The trial court abuses its discretion if it acts without reference to any guiding rules or principles. Id.
The Medical Liability and Insurance Improvement Act, Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(1), requires a plaintiff, within 180 days of filing a claim, either to furnish one or more expert reports for each physician or health care provider against whom the plaintiff asserts the claim to counsel or to nonsuit the case. An expert report is not required for any issue other than an issue related to liability or causation. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(j).
If the plaintiff fails to provide an expert report or to nonsuit the case within the time required, the trial court must, on the defendant's motion, award as sanctions (1) the defendant's reasonable attorney's fees and court costs; (2) the forfeiture of the plaintiff's cost bond to the extent necessary to pay the award; and (3) the dismissal of the plaintiff's action with prejudice. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(e). A trial court must grant an additional thirty days to a party if, after a hearing, the trial court determines the party's failure to file an expert report was not intentional or the result of conscious indifference, but was the result of an accident or mistake. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g). Just as we apply an abuse of discretion standard when reviewing a dismissal of an indigent inmate's cause of action under Chapter 14 of the Civil Practice and Remedies Code, we also apply an abuse of discretion standard when reviewing a dismissal under Article 4590i, § 13.01. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001).
Perry does not dispute that he failed to provide an expert report as required by Article 4590i, § 13.01(d). Rather, he contends the requirements that he obtain an expert report and that his cause of action be dismissed with prejudice if he does not obtain an expert report violate the open courts provision of the Texas Constitution because he cannot afford to employ an expert.
"All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. *825 Const, art. I, § 13. The open courts provision acts as an additional due process guarantee granted in the Texas Constitution, prohibiting legislative bodies from arbitrarily withdrawing all legal remedies from anyone having a well-defined, common-law cause of action. McGlothlin v. Cullington, 989 S.W.2d 449, 452 (Tex.App.-Austin 1999, pet. denied). For a party to successfully maintain an open courts challenge to a statute, the party must show (1) he or she has a cognizable common-law cause of action that is being restricted, and (2) the restriction is unreasonable or arbitrary when balanced against the purpose or basis of the statute. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983).
The parties do not dispute that Perry's medical negligence cause of action was recognized at common law. Therefore, it is the second prong of the test outlined in Sax that is at issue in this case.
In Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex.App.-Houston [1st Dist.] 2001, pet. denied), the court of appeals held Article 4590i, § 13.01(d)(1) did not violate the open courts provision with respect to an indigent inmate's medical negligence cause of action. In so holding, the court noted there is no general statutory or constitutional right to free experts to support an indigent plaintiff's civil cause of action. Id. at 719. Because a plaintiff raising a claim of medical negligence is required to prove his or her claim by competent expert testimony to avoid summary judgment and/or to prevail at trial, the court held the statutory requirement of an expert report is a reasonable restriction directly related to the statute's purpose of discouraging frivolous lawsuits. Id. Other courts, including this one, have applied similar reasoning in upholding the statute in the face of an open courts challenge. See Mocega v. Urquhart, 79 S.W.3d 61, 63-64 (Tex.App.-Houston [14th Dist.] 2002, no pet. h.); Knie v. Piskun, 23 S.W.3d 455, 467 (Tex.App.-Amarillo 2000, pet. denied); Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex.App.-Texarkana 1998, no pet.); see also Odak v. Arlington Mem'l Hosp. Found., 934 S.W.2d 868, 872 (Tex.App.-Fort Worth 1996, writ denied) (applying similar reasoning to the requirement in a previous version of Article 4590i, § 13.01 that, within ninety days of filing suit, the plaintiff must file a cost bond or an affidavit asserting he or she had obtained an expert report). Therefore, the statute is not unconstitutional as applied to Perry.
Perry also contends the trial court erred in failing to grant his Motion for New Trial in which he requested a thirty-day grace period to file an expert report. As mentioned previously, a trial court must grant an additional thirty days to a party if, after a hearing, the trial court determines the party's failure to file an expert report was not intentional or the result of conscious indifference, but was the result of an accident or mistake. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g). A motion under Article 4590i, § 13.01(g) is timely if it is filed before "any hearing" on a defendant's motion to dismiss. Id.
Appellees' Motion to Dismiss was filed on August 2, the same day the trial court signed the order of dismissal. The certificate of service attached to Appellees' motion asserts they mailed a copy of the motion to Perry on July 31. If there was a hearing on Appellees' motion, there is no record of the hearing, though the trial court's order asserts it considered "the arguments of counsel." Perry asserted in his Motion for New Trial that he did not receive notice of Appellees' motion until after it was granted by the trial court.
In Mocega, the appellant was not notified that the appellee's motion to dismiss was set for submission before the trial court on a certain date. Mocega, at 63-64. *826 After the trial court granted the appellee's motion, the appellant filed a motion for reconsideration and, after it was granted, a motion requesting a thirty-day grace period under Article 4590i, § 13.01(g). Id. The court of appeals held that because the appellant's contention that she did not have notice of the submission was unrebutted, and because the appellee did not contest that the appellant's failure to provide the expert report was not intentional or the result of conscious indifference, the trial court had to grant the appellant's motion for a thirty-day grace period. Id. at 65.
Appellees contend that under Section 14.003 of the Texas Civil Practice and Remedies Code, Perry was not entitled to a hearing before the trial court dismissed his suit. See Thomas v. Bilby, 40 S.W.3d 166, 168 (Tex.App.-Texarkana 2001, no pet.). As we have already said, however, the only basis on which the trial court could dismiss Perry's suit under Section 14.003 is if it found his claims had no basis in law. Perry's failure to file an expert report would mean his suit has no basis in law because expert testimony is required to maintain a claim of medical negligence, and the statute requires dismissal if a party fails to file the expert report.
However, Perry did not receive notice of Appellees' Motion to Dismiss before it was granted by the trial court. Therefore, he was denied an opportunity to take advantage of the grace period afforded by Article 4590i, § 13.01(g). Assuming Perry could show his failure to file an expert report was not intentional or the result of conscious indifference, but was the result of mistake or accident, he is entitled to a thirty-day grace period, and dismissal of his suit was premature.
In McClure v. Landis, 959 S.W.2d 679, 680 (Tex.App.-Austin 1997, pet. denied), the appellant's attorney mistakenly believed he had timely sent an expert report to the appellee. The appellee moved for dismissal, and the trial court granted his motion. Id. The appellant filed a motion for new trial in which she contended she was entitled to a thirty-day grace period retroactively validating the expert report her attorney sent the appellee immediately on receiving his motion to dismiss. Id.
The court of appeals held the trial court abused its discretion in overruling the appellant's motion for new trial.[2]Id. at 681. In so holding, the court analogized cases defining intentional acts or conscious indifference in the context of motions for new trial after a default judgment. Id. This court has applied the same approach. See Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 403 (Tex.App.-Texarkana 1999, pet. denied).
A party moving for a new trial may support his or her position by affidavits attached to the motion and by evidence. McClure, 959 S.W.2d at 681. It is *827 not necessary for the movant to introduce his or her supporting affidavits into evidence for the trial court to consider them. Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). When the movant's affidavits are not controverted, it is sufficient that the affidavits set forth facts that, if true, would negate intentional acts or conscious indifference. Id.
Proof of accident or mistake negates intent or conscious indifference. McClure, 959 S.W.2d at 681. Conscious indifference requires more than negligence; some excuse, but not necessarily a good excuse, is enough to show a lack of intentional conduct or conscious indifference. Roberts, 988 S.W.2d at 403. A mistake of law is also sufficient to negate intentional conduct or conscious indifference. Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.1992).
In the present case, Appellees did not controvert Perry's affidavit in support of his Motion for New Trial. In his affidavit, Perry asserts he does not have funds to retain an expert, but mistakenly believed he could obtain the necessary information from the defendants during the discovery process. Toward that end, he filed requests for production from the defendants within the 180-day window provided by Article 4590i, § 13.01(d). In the absence of controverting evidence, Perry's affidavit is sufficient to establish that his failure to file an expert report was not intentional or the result of conscious indifference, but was due to mistake.
Appellees contend Perry was unable to obtain an expert report even after the trial court dismissed his suit. Their contention is irrelevant to whether the trial court should have granted the thirty-day grace period. Under the statute, Perry was entitled to the grace period if he established that his failure to file the expert report was due to mistake or accident. Because he made this showing in his Motion for New Trial, the trial court abused its discretion in failing to grant his motion.
The judgment is reversed, and the case is remanded to the trial court for further proceedings.
NOTES
[*] William J. Cornelius, Chief Justice, Retired, Sitting by Assignment.
[1] Appellees also contended Perry failed to file an affidavit identifying and describing each pro se cause of action he had previously brought, as required by Tex. Civ. Prac. & Rem.Code Ann. § 14.004(a) (Vernon Supp.2002). Such failure is itself a ground for dismissal. Thomas v. Bilby, 40 S.W.3d 166, 168 (Tex.App.-Texarkana 2001, no pet.).
However, the record reflects that at the time of the dismissal, Perry had complied with Section 14.004(a). Further, Appellees do not assert that his initial failure to comply with Section 14.004(a) is a basis for affirming the dismissal.
[2] McClure does not contain a discussion of the timeliness of the appellant's request for a thirty-day grace period, which she included in her motion for new trial filed after the trial court dismissed the suit. It is unclear from the opinion when the appellant received the appellee's motion to dismiss, i.e., before or after the trial court granted the motion.
Assuming the appellant received the motion to dismiss after the trial court granted the motion, then McClure is further support for our holding above that a party who does not receive notice of a motion to dismiss under Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(e) (Vernon Supp.2002), can assert his or her right to a thirty-day grace period in a motion for new trial. Assuming the appellant received the motion to dismiss before the trial court granted the motion, then McClure stands for the proposition that a party can assert his or her right to a thirty-day grace period in a motion for new trial if the party sends the expert report before the trial court grants the dismissal.
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530 N.W.2d 218 (1995)
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL NO. 14, Respondent,
v.
COUNTY OF SCOTT, Relator.
No. CX-94-2185.
Court of Appeals of Minnesota.
April 18, 1995.
Review Denied May 16, 1995 and June 14, 1995.
*219 Gregg M. Corwin, Karin E. Peterson, Gregg M. Corwin & Associates, St. Louis Park, for respondent.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, David A. Singer, Frank J. Madden, Pamela R. Galanter, Frank Madden & Associates, Plymouth, for relator.
Considered and decided by PETERSON, P.J., SHORT and MINENKO,[*] JJ.
OPINION
PETERSON, Judge.
By writ of certiorari, relator County of Scott appeals from a Bureau of Mediation Services unit clarification order that determined certain county employees are not confidential employees under Minn.Stat. § 179A.03, subd. 4 (Supp.1993) and are included in a bargaining unit represented by respondent American Federation of State, County and Municipal Employees, Council No. 14.
FACTS
Scott County has approximately 560 employees. Eleven of these employees work in the Information Systems and Services Department (ISS). Two of the ISS employees are supervisory employees. The nine remaining ISS employees historically have been considered to be confidential employees and have not been included in any employee bargaining unit.
The American Federation of State, County and Municipal Employees, Council No. 14 (AFSCME) is the exclusive representative for a unit of Scott County courthouse employees. AFSCME filed a petition with the *220 Bureau of Mediation Services (BMS) requesting clarification whether the nine non-supervisory ISS employees are confidential employees who should be excluded from the bargaining unit represented by AFSCME.
Following a hearing, the BMS found that ISS is responsible for the county's computer operation, including security for the computer systems and the data produced and stored in the systems. The computer operation is a centralized, secured operation, located in the basement of the county courthouse.
Because of high turnover rates among ISS employees, the county instituted job rotation and cross-training programs to avoid computer operating problems caused by employee absences. The job rotation and cross-training programs are not rigidly structured. ISS employees are not moved from one department to another in a predetermined sequence.
ISS staff are assigned to a primary responsibility based on current operational needs, new program development, cross-training needs, and the need to fill in for absent employees. Two ISS employees have labor relations functions as their primary responsibility. An employee's primary responsibility might not require a majority of the employee's work time.
The BMS specifically found that ISS employees "have a County directed and approved access to computer data used in collective bargaining." In addition, the BMS found that ISS employees "have the skill and knowledge to access computer data independent of County control or approval." The data to which ISS employees have access consists primarily of raw data. ISS employees, the BMS found, "do not prepare or see County contract proposals or bargaining strategies, but have authorized access to data which is refined for the purpose of negotiations."
The BMS concluded that the nonsupervisory ISS employees are not confidential employees and are included in the bargaining unit represented by AFSCME.
ISSUES
1. Did the BMS correctly determine that the nonsupervisory ISS employees are not confidential employees pursuant to Minn. Stat. § 179A.03, subd. 4 (Supp.1993)?
2. Should relator's appeal be dismissed because the appendix of relator's reply brief contained a document that was not submitted to the BMS?
ANALYSIS
1. Upon review, an administrative agency decision will be sustained unless it appears that the decision violates a constitutional provision, exceeds statutory authority or jurisdiction, is made on unlawful procedure, is based on an error of law, is unsupported by substantial evidence, or is arbitrary and capricious. Markwardt v. State Water Resources Bd., 254 N.W.2d 371, 374 (Minn.1977).
The construction of a statute is a question of law fully reviewable by an appellate court. Hibbing Educ. Ass'n. v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). A reviewing court is not bound by an agency's interpretation of a statute. Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn.1978). But an agency interpretation is entitled to some deference when "(1) the statutory language is technical in nature, and (2) the agency's interpretation is one of long standing application." Id. Statutory terms "generally should be construed according to their plain and ordinary meaning." Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn.1984).
Relator challenges the BMS determination that the nonsupervisory ISS employees are not confidential employees under Minn.Stat. § 179A.03, subd. 4 (Supp.1993).
Because this is the first time Minnesota appellate courts have interpreted "confidential employee" under Minn.Stat. § 179A.03, subd. 4, AFSCME argues that we should narrowly construe the term as the federal courts have done under the National Labor Relations Act (NLRA) 29 U.S.C. §§ 141-187 (1988 & Supp. V 1993).
The Minnesota Supreme Court has stated:
*221 While care must be exercised in using decisions of the National Labor Relations Board as authority in construing our act, for the reason that there are differences in the two acts, the rationale of decisions under the federal act is applicable to cases arising under our act insofar as the provisions of the two acts are similar or the objects or purposes to be attained are the same.
Nemo v. Local Joint Executive Bd., 227 Minn. 263, 270, 35 N.W.2d 337, 342 (1948).
Nemo, however, involved a private employer and the act the supreme court referred to as "our act" was the Minnesota Labor Relations Act, Minn.Stat. §§ 179.01.17. Nemo, 227 Minn. at 264, 268, 35 N.W.2d at 338, 340. Here, the Minnesota Public Employment Labor Relations Act (PELRA), Minn.Stat. §§ 179A.01-25, is at issue. With regard to applying decisions interpreting the NLRA to issues arising under the PELRA, the supreme court has stated:
We are, of course, not bound by these decisions. The NLRA governs private sector employment while the PELRA governs public sector employment. The legislature in enacting the PELRA recognized that "[t]he relationships between the public, the public employees, and their employer governing bodies imply degrees of responsibility to the people served, need of cooperation and employment protection which are different from employment in the private sector." The legislature therefore declared that "unique approaches to negotiations and resolutions of disputes between public employees and employers are necessary." Hence, we are compelled to fashion rules which recognize the special problems which exist in the public sector.
International Union of Operating Engineers, Local No. 49 v. City of Minneapolis, 305 Minn. 364, 369-70, 233 N.W.2d 748, 752 (1975) (quoting Minn.Stat. § 179.61 (repealed 1984) (corresponds to Minn.Stat. § 179A.01 (1992))). We are not bound by the federal decisions cited by respondent and, for two reasons, we decline to follow them.
First, the consequences of being classified as a confidential employee differ under the NLRA and the PELRA. Under the NLRA, a confidential employee loses the right to bargain collectively. See Union Oil Co., v. NLRB, 607 F.2d 852, 853 (9th Cir.1979) (NLRB has long recognized that confidential employees should be excluded from bargaining units under NLRA). "[B]ecause expansive application of the exclusionary rule [for confidential employees] would deprive many employees of the right to bargain collectively", confidential employee has been "narrowly construed" under the NLRA. Id.
In contrast, the PELRA permits confidential employees to bargain collectively. See Minn.Stat. § 179A.06, subd. 2 (1992) (stating that, except for confidential employees of state and University of Minnesota, "[o]ther confidential employees * * * may form their own organizations"). Confidential employees may not be in the same bargaining unit as non-confidential employees, but they may bargain collectively. See Minn.Stat. § 179A.09, subd. 2 (1992) ("The commissioner shall not designate an appropriate unit which includes essential employees with other employees."); Minn.Stat. § 179A.03, subd. 7 (1992) (defining essential employee to include confidential employee).
Second, unlike the PELRA, the NLRA does not define "confidential employee." See 29 U.S.C. § 152(3) (1988). Rather, the cases interpreting the NLRA have identified two categories of confidential employees to be excluded from bargaining units. See B.F. Goodrich Co., 115 N.L.R.B. 722, 724 (1956) (defining confidential employees as those who "assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations"); see also Pullman Standard Div. of Pullman, Inc., 214 N.L.R.B. 762, 762-63 (1974) (defining confidential employees as those "who, in the course of their duties, regularly have access to confidential information"). In contrast, Minn.Stat. § 179A.03, subd. 4 specifically defines "confidential employee." See County of Scott v. Public Employment Relations Bd., 461 N.W.2d 503, 505 (Minn.App.1990) ("The [Public Employment Relations] Board should not be required to look to federal court interpretations of a general statute when the Minnesota statute gives specific criteria for *222 its decision."), pet. for rev. denied (Minn. Dec. 20, 1990).
Minn.Stat. § 179A.03, subd. 4 provides:
"Confidential employee" means any employee who:
(1) has access to information subject to use by the public employer in meeting and negotiating: or
(2) actively participates in the meeting and negotiating on behalf of the public employer.
Although the BMS specifically found that ISS employees have access to computer data used in collective bargaining, it concluded that the employees are not confidential employees because "[t]hey do not have a regular and ongoing access to data or strategies used by the County in negotiations." The BMS explained that it would not find the data access available to the ISS employees a basis for determining that the employees are confidential employees because
[u]ltimately the employer is responsible for maintaining data used in negotiations in a secure manner. Employees who, because of skill and knowledge, can access such information independently, but whose job does not require its use, are the responsibility of the employer to control.
The narrow interpretation the BMS gave to the term "confidential employee" does not reflect the broad language of section 179A.03, subd. 4. Under Minn.Stat. § 179A.03, subd. 4, an employee who has "access" to information, not "regular and ongoing access" is a confidential employee. Also, nothing in the statute suggests that an employee who has access to information, but is not required to use the information, is not a confidential employee. Finally, Minn.Stat. § 179A.03, subd. 4 applies to information "subject to use by the public employer in meeting and negotiating." It is not limited to "data or strategies used by the County in negotiations." Information is subject to use even if it is never used. ISS employees have "access to information subject to use by the public employer" under Minn.Stat. § 179A.03, subd. 4 even though they are not required to use the information to perform their jobs.
The BMS erroneously interpreted Minn.Stat. § 179A.03, subd. 4 by adding restrictions to both the type of access and the type of information required to make an employee a confidential employee when it determined that "access" means "regular and ongoing access" and that "information subject to use by the public employer in meeting and negotiating" means "data or strategies used by the County in negotiations." See Minnesota Teamsters Pub. & Law Enforcement Employee's Union, Local No. 320, Minneapolis v. County of McLeod, 509 N.W.2d 554, 556-57 (Minn.App.1993) (reversing BMS decision where BMS commissioner exceeded statutory authority by considering factors not listed in statutory language); Vadnais v. State Farm Mut. Auto. Ins. Co., 354 N.W.2d 607, 609 (Minn.App.1984) (courts cannot amend statutes under guise of construction).
2. Respondent filed a motion with this court to dismiss relator's appeal or, in the alternative, to strike relator's entire reply brief or portions of relator's reply brief and its appendix because the appendix contains a document that was not submitted to the BMS and the reply brief contains references to this document.
The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.
Minn.R.Civ.App.P. 110.01.
Because the document in the appendix was not filed with the BMS it is not part of the record on appeal and should not have been included in the appendix. However, not every violation of the Rules of Civil Appellate Procedure warrants dismissal of the appeal. The Minnesota Supreme Court has outlined the following factors to consider on a motion to dismiss:
1. Has the movant been prejudiced by the appellant's failure to comply with the rules?
2. Has the appellant demonstrated justifiable cause for the failure to comply with the rules?
3. Has the defect been cured and have the record and all briefs been filed so that the merits can be evaluated?
*223 4. Is the underlying appeal meritorious?
Boom v. Boom, 361 N.W.2d 34, 36 (Minn. 1985) (quoting In re Estates of Kjorvestad, 304 N.W.2d 83, 85 (N.D.1981)).
While the county has not demonstrated any justifiable cause for improperly including the document in its appendix, AFSCME has not demonstrated any prejudice caused by the county's failure to comply with the rules. Also, the defect will be cured if this court disregards the document and any reference to it. Finally, the underlying appeal is meritorious.
Therefore, we have disregarded the document and we grant the motion to strike it and references to it from the record, but we deny the motion to strike the entire reply brief and the motion to dismiss this appeal. See, e.g., Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 847 (Minn.App.1986) (granting motion to strike material not part of record on appeal), pet. for rev. denied (Minn. June 30, 1986).
DECISION
The BMS erroneously determined that the nonsupervisory ISS employees are not confidential employees under Minn.Stat. § 179A.03, subd. 4. Respondent's motion to dismiss the appeal is denied. Respondent's motion to strike relator's reply brief is denied. The document in the appendix to relator's reply brief that was not submitted to the BMS and all references to this document are stricken from the reply brief and have not been considered.
Reversed.
NOTES
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
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13-3265
Sherpa v. Holder
BIA
Cheng, IJ
A087 462 979
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of January, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 NAMGYAL SHERPA,
14 Petitioner,
15
16 v. 13-3265
17 NAC
18 ERIC H. HOLDER, JR., UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Khagendra Gharti-Chhetry, New York,
24 NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Anthony W. Norwood, Senior
28 Litigation Counsel; Manuel Palau,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Namgyal Sherpa, a native and citizen of Nepal, seeks
9 review of an August 14, 2013, decision of the BIA, affirming
10 the December 27, 2012, decision of an Immigration Judge
11 (“IJ”), denying his application for asylum, withholding of
12 removal, and relief pursuant to the Convention Against
13 Torture (“CAT”). In re Namgyal Sherpa, No. A087 462 979
14 (B.I.A. Aug. 14, 2013), aff’g No. A087 462 979 (Immig. Ct.
15 N.Y.C. Dec. 27, 2012). We assume the parties’ familiarity
16 with the underlying facts and procedural history in this
17 case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s and BIA’s decisions “for the sake of completeness.”
20 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
21 Cir. 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 For asylum applications like Sherpa’s, governed by the
2 REAL ID Act of 2005, the agency may, “[c]onsidering the
3 totality of the circumstances,” base a credibility
4 determination on an asylum applicant’s demeanor, the
5 plausibility of his account, and inconsistencies in his
6 statements and other record evidence, “without regard to
7 whether” they go “to the heart of the applicant’s claim.” 8
8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make such an adverse credibility ruling.” Xiu Xia Lin
12 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
13 Substantial evidence supports the agency’s adverse
14 credibility determination.
15 The agency reasonably relied in part on Sherpa’s
16 demeanor, noting that he was at times unresponsive and
17 evasive. See 8 U.S.C. § 1158(b)(1)(B)(iii); Shu Wen Sun v.
18 BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per curiam). That
19 finding is supported by the record.
20 The IJ’s demeanor findings and the adverse credibility
21 determination as a whole are further supported by
22 inconsistencies in the record. See Li Hua Lin v. U.S. Dep’t
23 of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be
3
1 still more confident in our review of observations about an
2 applicant’s demeanor where, as here, they are supported by
3 specific examples of inconsistent testimony.”). The agency
4 reasonably determined that inconsistencies in Sherpa’s
5 evidence regarding his employment in Nepal reflected
6 negatively on his credibility, particularly given his claim
7 that Maoists harmed him in part on account of his activities
8 as a trekking guide. Sherpa testified that he worked for a
9 certain trekking company after 2002, but his asylum
10 application listed different dates, as did a letter from
11 that company. The agency also reasonably relied on Sherpa’s
12 omission from his application of a third company he
13 supposedly worked for part time. See Xiu Xia Lin, 534 F.3d
14 at 166 n.3 (providing that for purposes of analyzing a
15 credibility determination, “[a]n inconsistency and an
16 omission are . . . functionally equivalent”). The agency
17 was not required to credit his conflicting explanations for
18 these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77,
19 80-81 (2d Cir. 2005)
20 The agency also reasonably considered inconsistencies
21 and omissions concerning Sherpa’s medical treatment in
22 Nepal. Despite repeated questions about the details of the
23 treatment he received after he was beaten by Maoists in
4
1 2006, Sherpa did not testify that he received an x-ray;
2 rather, he emphatically stated that the doctor only looked
3 at his bruises and gave him medicine. But his doctor’s
4 notes state that Sherpa was given an x-ray. The agency was
5 not required to credit his explanation that he misunderstood
6 the Government’s questions in this regard because he
7 provided responsive answers to those questions. See Majidi,
8 430 F.3d at 80-81. Moreover, a letter from Sherpa’s wife
9 failed to mention that he sought medical treatment at all
10 after this incident.
11 The agency also found that Sherpa failed to adequately
12 corroborate his claim. An applicant’s failure to
13 corroborate testimony may bear on credibility, either
14 because the absence of particular corroborating evidence is
15 viewed as suspicious, or because the absence of
16 corroboration in general makes an applicant unable to
17 rehabilitate testimony that has already been called into
18 question. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
19 Cir. 2007). Sherpa does not challenge that finding. See
20 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.
21 2005).
22 Given the demeanor, inconsistency, and corroboration
23 findings, substantial evidence supports the agency’s adverse
5
1 credibility determination.1 See Xiu Xia Lin, 534 F.3d at
2 167. That determination is dispositive of asylum,
3 withholding of removal, and CAT as those claims are based on
4 the same factual predicate. Paul v. Gonzales, 444 F.3d 148,
5 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18
1
The IJ improperly found that Sherpa omitted from
his asylum application that he visited an herbal doctor
after one encounter with Maoists because he stated that
he sought treatment locally after that incident. See
Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).
Nevertheless, remand is unnecessary because the agency’s
other findings constitute substantial evidence to support
its adverse credibility determination as to Sherpa’s
claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 339 (2d Cir. 2006).
6
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660 So.2d 506 (1995)
Terrell Dewight FOWLER, Plaintiff-Appellant,
v.
Donald Carl HODGE, Sr. and Evia Fowler, Defendants-Appellees.
No. 95-248.
Court of Appeal of Louisiana, Third Circuit.
May 31, 1995.
Rehearing Denied October 10, 1995.
Anthony Joseph Fazzio, Lake Charles, for Terrell Dewight Fowler.
Sidney J. Rosteet, Walter Marshall Sanchez, Lake Charles, for Donald Carl Hodge Sr. and Evia Fowler.
Pamela Viney Mathews, Lake Charles, for Evia Fowler.
Before COOKS, SAUNDERS and DECUIR, JJ.
SAUNDERS, Judge.
Plaintiff in this filiation proceeding appeals the judgment of the trial court sustaining the defendant's exception of res judicata. We reverse.
FACTS
Plaintiff, Terrell Fowler, hereinafter referred to as Fowler, is the second husband of defendant, Evia Hodge Fowler, hereinafter referred to as Evia. Co-defendant, Donald Hodge, Sr., hereinafter referred to as Hodge, is the first husband of Evia Hodge Fowler. The minor child at issue in the instant filiation proceedings is David Craig Hodge who was born on October 27, 1988.
Evia filed suit against Hodge for a legal separation in April of 1986. A judgment of divorce was granted in February of 1989. Fowler and Evia were married in May of 1990. On September 20, 1990, Fowler filed a petition bearing the caption "Petition for Separation, Petition to Establish Paternity, Petition to Change Name and Incidental Relief" which was assigned docket no. 90-4789, and will hereinafter be referred to as Fowler I. In this petition, Fowler claimed that he and Evia became romantically involved following her separation from Hodge but prior to her divorce and that David Craig Hodge was conceived during their relationship. Fowler reconciled with Evia prior to an adjudication of the issues raised in Fowler I and dismissed Fowler I with prejudice. *507 Fowler and Evia were eventually divorced in a separate action by judgment rendered in January of 1994.
Fowler filed the instant suit, hereinafter referred to as Fowler II, on February 2, 1994, seeking to establish his filiation with David Craig Hodge. Fowler asserts in his petition in the instant case that he is the biological father of David Craig Hodge and that Evia has refused to let him continue his relationship with David Craig Hodge since his separation from Evia.
Defendants filed an exception of res judicata based on the dismissal in Fowler I which was granted by the trial judge.
Plaintiff appeals.
ASSIGNMENTS OF ERROR
The plaintiff appeals assigning the following errors:
A. The trial court erred in maintaining the exception of res judicata because res judicata is not applicable to domestic cases or incidental matters and the suit for separation in 1990 was a domestic suit.
B. The trial court erred in maintaining the exception of res judicata because the exception was filed 16 days after the conclusion of the trial on the merits.
C. The trial court erred in maintaining the exception of res judicata because res judicata is stricti juris and takes place only with respect to what was the object of the judgment and the thing demanded must be the same, founded on the same cause of action, between the same parties and formed by them against each other in the same quality and is premised on the conclusive legal presumption of "the thing adjudged" previously between the same parties and is ordinarily based upon a final judgment. Any doubt as to its application must be resolved in favor of denying the exception.
D. The exception of res judicata should be overturned because the paternity issue was not "actually adjudicated" when the petition was dismissed with prejudice.
E. The exception of res judicata should be overturned because the application of this doctrine would be unfair to claimant. Even if the exception had been timely filed and if the exception had merit and was applicable to this case the maintaining of the exception was unfair to Terrell Fowler and David Craig Hodge.
Because plaintiff's third and fourth (D & E) assignments of error are intertwined, we address them together and, finding them to be meritorious, we pretermit discussion of his other assigned errors.
LAW
The law of res judicata in Louisiana was substantially changed by Acts 1990, No. 521. Section 5 of this act provides in part that "the preclusive effect and authority of a judgment rendered in an action filed before the effective date of this Act shall be determined by the law in effect prior to January 1, 1991." Therefore, since Fowler I was filed on September 20, 1990, the exception of res judicata in this matter is governed by the previous version of La.R.S. 13:4231, and the jurisprudence interpreting it. La.R.S. 13:4231 at the time Fowler I was filed provided as follows:
The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.
The doctrine of res judicata is interpreted stricti juris, and any doubt regarding compliance with its requirements is to be resolved in favor of maintaining the action. McNeal v. State Farm Mutual Automobile Ins. Co., 278 So.2d 108 (La.1973); Mai v. Mai, 419 So.2d 1251 (La.App. 3 Cir.), writ denied, 420 So.2d 970 (La.1982).
In Lamana v. LeBlanc, 526 So.2d 1107 (La.1988), the supreme court found that the judgment in a previous action by a man seeking to establish paternity and visitation rights did not bar his second suit seeking visitation rights when the first judgment failed to address the issue of visitation. The trial court dismissed the first suit on an *508 exception of no cause of action or in the alternative no right of action because the husband of the mother at the time of conception had not disavowed paternity. Thus, although the issue of visitation had been pled, it had not been actually litigated, and therefore was not the object of the judgment. In reaching this conclusion, the court observed that the "theory of civilian res judicata is that matters actually litigated and finally adjudged are presumed correct and thus should not be contradicted in a subsequent suit." Lamana, 526 So.2d at 1109, quoting Ryan v. Grandison Trust, 504 So.2d 844, 849 (La.1987).
CONCLUSION
Applying the above principles to the case sub judice, we find that the trial court erred in maintaining the defendant's exception of res judicata. Fowler I was voluntarily dismissed with prejudice by Fowler upon his reconciliation with Evia and prior to an adjudication or determination of the rights of the respective parties. The judgment in Fowler I cannot be given the authority of "the thing adjudged" because the issues raised in the petition were not actually litigated. Therefore, the judgment in Fowler I is not res judicata to the action in Fowler II.
Additionally, we note that the principles requiring a narrow construction and strict application of the preclusive effect of the former version of res judicata are particularly compelling in matters such as this where the paternity of a child and the rights of the biological father are at issue. It would be unthinkable to allow these rights to be terminated on a procedural technicality when the ultimate issue of paternity has not been determined.
DECREE
For the foregoing reasons, the judgment of the trial court sustaining the defendant's exception of res judicata is reversed at defendant's costs and the case is remanded for further proceedings.
REVERSED AND REMANDED.
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252 F.3d 862 (6th Cir. 2001)
Lois Christian; Amber Edens, Plaintiffs-Appellants,v.Wal-Mart Stores, Inc., Defendant-Appellee.
No. 99-3926
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: March 7, 2001Decided and Filed: June 6, 2001
NOTE: AMENDED PER ORDER OF AUGUST 31, 2001 AT 266 F.3d 407
Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 98-00922, Patricia A. Gaughan, District Judge.[Copyrighted Material Omitted]
John W. Mygrant, Valarie J.R. Young, MENTZER, VUILLEMIN & MYGRANT, Akron, Ohio, for Appellants.
Clifford C. Masch, REMINGER & REMINGER, Cleveland, Ohio, for Appellee.
Before: MARTIN, Chief Judge; MOORE, Circuit Judge; TARNOW, District Judge.*
OPINION
KAREN NELSON MOORE, Circuit Judge.
1
Plaintiffs-Appellants Lois Christian and Amber Edens appeal the district court's grant of judgment as a matter of law on their federal and state claims of race discrimination in a retail establishment. Christian, who is black, and Edens, who is white, went to a Wal-Mart on December 15, 1997 to buy Christmas presents. A Wal-Mart employee offered Christian repeated assistance, which Christian declined. Edens was offered no assistance. The employee, claiming that Christian was shoplifting, then called the police. Thereafter, Christian and Edens were escorted out of the store by police officers and were not allowed to complete their purchases. Christian and Edens brought this action under 42 U.S.C. §1981, 42 U.S.C. §2000a, and Ohio Revised Code §4112.02(G), alleging, inter alia, that they were refused their right to make a contract with Wal-Mart because of Christian's race. Because we believe the district court erred by granting Wal-Mart judgment as a matter of law, we conclude that we must REVERSE the district court's judgment.
I. BACKGROUND
2
On December 15, 1997, at approximately 1:45 a.m., Christian and Edens, who are close friends, entered a Wal-Mart in Jackson Township, Ohio to shop for Christmas presents for their respective children. Both women stayed within the toy department but they shopped separately. They were the only two shoppers in the toy department. Christian walked around with a shopping cart; Edens occasionally placed items in Christian's cart but she did not have her own cart. According to Christian, Rose Monnot, a Wal-Mart employee, watched her as she shopped and repeatedly offered her assistance. Christian stated that she was initially offered help two or three times, although she later stated that she was offered help a total of six times throughout the hour and three quarters during which she shopped.1 J.A. at 119, 144. Edens testified that within the first 20 minutes after their arrival at the store, Christian informed her that she had been offered help a couple of times. Edens stated that once Monnot saw that she was with Christian, Monnot started to follow her as well.2 Edens, however, was never offered assistance.
3
Sometime close to 3:00 a.m., Christian put her purse on a shelf, unzipped it, and reached into her purse for a jar of vasoline. J.A. at 119. At that moment, Christian noticed Monnot "jogging down" the aisle toward her. Monnot, upon reaching Christian, again asked if she could be of assistance, but Christian declined her help. Christian then reported the incident to Edens.
4
Monnot testified to a very different set of events. According to Monnot, she heard Christian unzip her purse from where she was standing six aisles away.3 She says that she saw Christian reach with her left hand, pick up a toy, and place the toy in her purse which was hanging over her left shoulder. Monnot then saw Christian place her bag on a shelf and zip it. Monnot stated that she recognized which item had been taken because she had been stocking that particular toy earlier that night.
5
Monnot testified that she then paged the manager, Richard Clark, and informed him that a woman had placed an item in her purse. Clark told Monnot to call the police; Monnot then instructed a cashier to call the police. Clark also directed Monnot to keep an eye on the woman. Monnot and the cashier then returned to the toy department so that Monnot could point out Christian to the cashier. Christian testified that she then approached Monnot and the cashier and told Monnot, "Excuse me, ma'am. Do you believe I'm stealing? Because I'm not. I went into my purse for something for me." J.A. at 120. Monnot denied that she suspected her of shoplifting. According to Edens, she then stated to Monnot: "[Christian] has been feeling uncomfortable and we're ready to leave. And we have a right to shop here, and we would like to just finish our Christmas shopping." J.A. at 207. Edens testified that Monnot replied, "Oh, no, at this time of year I not only watch for shoplifters, you know, people lingering around the store and have knives and gun[s] on them." J.A. at 207.
6
At some point, either before or after Christian and Edens spoke with Monnot, Christian heard an announcement over the store intercom calling "employees to the toy department," and when she looked up she found six or seven employees staring at her. J.A. at 121.
7
Monnot testified that when she later returned to the aisle, she realized that the item she believed had been stolen had been returned. Monnot then called the cashier and told her to tell the police not to come to the store because the item had been returned. Shortly thereafter, at approximately 3:33 a.m., the police arrived. Monnot then told the police that the item had been returned and she was sorry they had been called to the store for no reason. Police Officer Todd Macaluso testified that Monnot explained that she did not see a customer place an item in her purse, just that an item was missing. J.A. at 178. According to Monnot, the police asked her if she wanted to have the woman whom she had suspected of shoplifting removed from the store and then asked her to describe the two women. Monnot stated that she did not have the authority to decide whether the women should be removed. At that point, Monnot testified that she informed the police that one woman was white and the other was black. She testified that this was the first time she had mentioned either shopper's race to anyone.
8
Clark, the store manager, then approached the police officers. According to Officer Macaluso, he then asked Clark what the officers should do, if anything. Clark appeared "indecisive" but ultimately decided that the officers should ask the two women to leave. Monnot testified that she never told Clark the race of either of the two women. Macaluso also testified that he never discussed the women's race with Clark. Macaluso testified that he did not know Christian or Eden's race until Monnot walked him to the toy department. Clark testified that he never saw the two women, nor was he ever informed of their race.
9
Monnot directed the police officers to Christian and Edens. Monnot admitted to telling the officers that if they removed Christian, they should also remove Edens so that it would not become a racial issue. J.A. at 151. Monnot then went on a break. According to Christian, the officers then approached her and Edens and asked them to leave the store. Christian testified that the officers stated, "They do not like your business. They would like you to leave." J.A. at 123. The officers did not accuse Christian of shoplifting or search her bag. The officers then escorted Christian and Edens out of the store. Christian was forced to leave behind her shopping cart of merchandise.
10
As a result of this incident, plaintiffs brought suit against Wal-Mart in federal district court alleging claims under 42 U.S.C. §1981, 42 U.S.C. §2000a, and Ohio Revised Code §4112.02(G) as well as a claim for intentional infliction of emotional distress. Wal-Mart subsequently moved for summary judgment. The district court granted Wal-Mart's motion as to the 42 U.S.C. §2000a claim and the intentional infliction of emotional distress claim. The district court also granted summary judgment as to Edens's claims. Edens then moved to have the first and third counts reinstated as to her, which the district court granted.
11
At trial, Christian attempted to prove that Wal-Mart had a policy for dealing with shoplifters which Monnot and Clark failed to follow. Clark testified that an employee who sees a shopper place a piece of merchandise on his person is supposed to keep the shopper in view until the shopper leaves the last point of purchase. At that point, Clark testified that the employee could stop the shopper and keep him in the store until the police arrived. Clark stated that if the employee lost sight of the shopper for even a moment, the employee was not permitted to stop the shopper. Monnot testified that she believed it was store policy to notify management if she suspected a shopper of shoplifting. She also stated that she was never given any specialized training with regard to how to deal with shoplifiting.
12
Wal-Mart focused on the issue of its intent to discriminate. On cross-examination, Wal-Mart's attorney repeatedly questioned Christian about the moment at which she unzipped her purse, ultimately eliciting from her an admission that Monnot could have believed that someone was stealing when Monnot heard the sound of a purse being unzipped. Instead of contesting Monnot's suspicions as racially motivated, Christian conceded that her actions could have given rise to Monnot's perception that she had concealed, or was attempting to conceal, store merchandise. J.A. at 141-42. She also admitted that it is reasonable for a salesperson who suspects someone is stealing to approach that person. J.A. at 142.
13
At the end of the plaintiffs' case, Wal-Mart moved for judgment as a matter of law. Based on Christian's testimony on cross-examination and Monnot's testimony that she had tried to tell the police to leave when she realized that the allegedly stolen item had been returned, the district court determined that Christian had failed to establish that Monnot had the requisite intent to discriminate. J.A. at 246-47. Moreover, the district court stated that because Clark made the decision to ask plaintiffs to leave the store, and the evidence was uncontroverted that Clark never knew either woman's race, there was no evidence to demonstrate that Clark's actions were motivated by racial animus. J.A. at 248. Because the district court found there was no racial discrimination against Christian, the court determined that Edens was not asked to leave based on her association with an African-American. Therefore, the district court granted Wal-Mart's motion as to both plaintiffs. The plaintiffs timely appealed the district court's order.
II. ANALYSIS
A. Standard of Review
14
We review the district court's grant of judgment as a matter of law under Fed. R. Civ. P. 50(a) de novo. We consider all the evidence in the record, including those facts that are in dispute, in the light most favorable to the nonmoving party, giving her the benefit of all reasonable inferences. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir. 1999). Thus, "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151. We may not, however, make credibility determinations or weigh the evidence. Id.
15
Federal Rule of Civil Procedure 50(a)(1) states that judgment as a matter of law is appropriate only where "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. R. Civ. P. 50(a)(1). In other words, a district court may "take the case away from the jury ... whenever there is a complete absence of pleading or proof on an issue material to the cause of action or when no disputed issues of fact exist such that reasonable minds would not differ." Jackson, 191 F.3d at 657 (internal quotation omitted). A dismissal pursuant to Rule 50(a) is, however, "improper where the nonmovant presented sufficient evidence to raise a material issue of fact for the jury." Id.
B. §1981 Prima Facie Case
16
Section 1981 prohibits intentional race discrimination in the making and enforcing of contracts with both public and private actors. 42 U.S.C. §1981. The statute's protection extends to "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."Id. §1981(b). This circuit has held that to prevail in a claim of race discrimination under §1981 relying on circumstantial evidence, a plaintiff must meet the burden-shifting standard of proof for Title VII cases established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). Jackson, 191 F.3d at 658; Harvis v. Roadway Express, Inc., 923 F.2d 59, 61 (6th Cir. 1991). Under this standard, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. The burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. To prevail, the plaintiff must then prove by a preponderance of the evidence that the defendant's proffered reason is not its true reason but a pretext for discrimination. See Reeves, 530 U.S. at 142-43 (applying three-part test in jury trial); Burdine, 450 U.S. at 253 (applying three-part test in bench trial).
17
While §1981 is generally invoked in the employment context for, e.g., claims of hostile environment, failure to promote, or wrongful dismissal, litigants have also brought suit under the statute for claims of discrimination in retail and service settings. We have never established a test for a prima facie case of discrimination under §1981 outside of the employment context. In its ruling on Wal-Mart's motion for summary judgment, the district court found that in order to prove a §1981 claim a plaintiff must demonstrate: "1) the plaintiff is a member of a racial minority, 2) an intent to discriminate on the basis of race by the defendant and 3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." J.A. at 41. It appears that the district court, relying on the Second and Fifth Circuits for the test, dispensed with the relevant McDonnell Douglas/Burdine burden-shifting analysis and grappled only with the ultimate question of Wal-Mart's intent to discriminate. See id. (stating that "while the Title VII burden shifting analysis is used in §1981 employment discrimination matters based on race," the alternative three-part test was appropriate in non-employment contexts).
18
The Second Circuit was the first appellate court to fashion the above three-part standard. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (applying three-part test to claim of race discrimination in arbitration proceedings based on right to legal process to enforce a contract). It was subsequently adopted by the Fifth Circuit in Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994) (noting standard for §1981 claim of discrimination based on right to make and enforce contract), the Seventh Circuit in the oft-cited decision Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (noting that three-part standard applies to claim of discrimination in retail sales transaction), and, most recently, the Tenth Circuit in Hampton v. Dillard Dep't Stores, Inc., 2001 WL 417289, *4 (10th Cir. April 24, 2001) (applying three-part test for prima facie case).4 Christian would have us apply this three-part standard as our prima facie test in the burden-shifting framework. Appellant's Br. at 10.
19
Wal-Mart asserts that the plaintiffs must meet a different, four-part prima facie test which has been adopted by several district courts. See, e.g., Laroche v. Denny's, Inc., 62 F. Supp. 2d 1366, 1370 (S.D. Fla. 1999); Singh v. Wal-Mart Stores, Inc., No. Civ.A. 98-1613, 1999 WL 374184, *6 (E.D. Pa. June 10, 1999); White v. Denny's Inc., 918 F. Supp. 1418, 1424 (D. Colo. 1996). Under this test, a plaintiff must show: (1) she is a member of a protected class; (2) she attempted to make, enforce, or secure the performance of a contract; (3) she was denied the right to do so; and (4) the opportunity to make, enforce, or secure the performance of a contract for like goods or services remained available to similarly situated persons outside of the protected class. Appellee's Br. at 11. According to Wal-Mart, the plaintiffs can only prove a claim of discriminatory treatment if they can show that, under prong four of this test, comparable shoppers were similarly situated in "all respects" to the plaintiff. Id. at 12. To be deemed similarly situated, Wal-Mart would have us require a plaintiff to find shoppers who have "dealt with the same supervisor, been subject to the same standards, and engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or the treatment afforded them." Id.at 13.
20
We note, from the outset, that we believe the district court was wrong, in the context of a Rule 50(a) motion, to omit the traditional burden-shifting framework from its analysis.5 Just as with Title VII cases, where "the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination," Burdine, 450 U.S. at 256 n.8, so too is the burden-shifting scheme useful to courts in assessing §1981 claims of intentional discrimination based on circumstantial evidence. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (approving of the use of the burden-shifting scheme "as a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination" for §1981 claims) (internal quotation omitted); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000) (noting that plaintiff bringing §1981 action may prove claim with either direct or circumstantial evidence of discrimination, and that McDonnell Douglas/Burdine tripartite test is appropriate where latter technique is employed). The district court's omission does, however, offer us the opportunity to fashion from a clean slate an appropriate prima facie test in the commercial establishment context.
21
There is ample precedent for requiring a distinct formulation of the burden-shifting framework in differing factual circumstances. See Burdine, 450 U.S. at 254 n.6 (stating that a prima facie standard articulated in McDonnell Douglas for claim of race discrimination "is not inflexible" as the prima facie proof required from a plaintiff "is not necessarily applicable in every respect in differing factual situations"); see also Bobbitt, 19 F. Supp. 2d at 516-17 (noting different standards under §1981 for claims of failure to hire, failure to promote, failure to give merit pay raise, disparate punishment within the workplace, and failure to renew contract). Thus, it would not be extraordinary for this court to adopt an individualized test for right to contract claims in the commercial establishment context.
22
Clearly, a plaintiff asserting a §1981 claim must prove intentional discrimination. Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389 (1982). But it does not follow that the plaintiff must prove intentional discrimination as an element of the prima facie case. As the Supreme Court has explained, the "division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question [of intentional discrimination]."Burdine, 450 U.S. at 253. According to the Court, the burden of establishing a prima facie case of discriminatory treatment is not meant to be "onerous." Id. The purpose of the prima facie case is simply to "eliminate[] the most common nondiscriminatory reasons for the plaintiff's" treatment, id. at 254, 101 S. Ct. 1089; a prima facie case "raises an inference of discrimination only because we presume [the defendant's] acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
23
In the employment context, a plaintiff may establish a prima facie case of intentional discrimination without having direct evidence of the defendant's intent to discriminate; indeed, the rationale for employing a prima facie case is to allow a plaintiff to create a "legally mandatory, rebuttable presumption" of discrimination with only circumstantial evidence. Id. at n.7. Therefore, we find it curious that so few courts have paused to remark upon the incongruity of dispensing with a prima facie test, or requiring a plaintiff to prove intentional discrimination as an element of a prima facie case in the commercial establishment context, as the plaintiffs would have us do. Recently, a district court in Maryland engaged in an analysis of the proper elements of a prima face case in the commercial establishment context.
24
In Callwood v. Dave & Buster's, Inc., 98 F. Supp. 2d 694, 705 (D. Md. 2000), the district court recognized that there were two competing tests for §1981 claims in the commercial establishment context. Critiquing the three-part test utilized by the district court in the instant case, the Callwood court noted:
25
[T]his formulation erroneously collapses the overall elements of a section 1981 claim with the elements of a prima facie case. In particular, to the extent that any formulation of the elements of a prima facie case includes a requirement that the plaintiff show that the defendant had an intent to discriminate on the basis of race, such a formulation is inappropriate because the very point of the prima facie case requirement is to provide a basis for inferring the existence of a discriminatory motive.
26
Id. at 705. In crafting its own prima facie case, the Callwood court attempted to account for the differences between the commercial establishment and the employment contexts. Speaking to the problem of developing a "similarly situated" prong for a commercial establishment test, that court noted that employment decisions are "regularized and periodic, are made by supervisory personnel, and by their very nature are almost always documented ....[They] leave behind a paper trail of evidence which to a greater or lesser extent will be available during discovery or otherwise to a discrimination victim." Id. at 706.
27
Therefore, in the employment context it makes sense to insist upon evidence of "similarly situated applicants or employees." Id. In the commercial establishment context, on the other hand, the clientele is "largely itinerant," and the task of producing similarly situated persons outside the protected group is much more difficult. Id.
28
With these distinctions in mind, the Callwood court determined that a plaintiff must show the following for a prima facie case of discrimination in a commercial establishment:6
29
(1)she is a member of a protected class;
30
(2)she made herself available to receive and pay for services ordinarily provided by the defendant to all members of the public in the manner in which they are ordinarily provided; and
31
(3)she did not enjoy the privileges and benefits of the contracted for experience under factual circumstances which rationally support an inference of unlawful discrimination in that
32
(a)she was deprived of services while similarly situated persons outside the protected class were not deprived of those services, and/or
33
(b)she received services in a markedly hostile manner and in a manner which a reasonable person would find objectively unreasonable.
Id. at 707.7
34
According to Callwood, subparts (1) and (2) are consistent with the standard prima facie elements as adopted by other courts. Subpart (3)(a) is designed to invoke the "similarly situated" test, but is written with the understanding that "the comparison will never involve precisely the same set of ... [conduct] occurring over the same period of time and under the same sets of circumstances." Id. at 707 (internal quotation omitted). Moreover, the phrase "deprived of services" in subpart (3)(a) is written to encompass more than just an outright denial of services. "By encompassing the deprivation of services ... , subpart (3)(a) protects against discriminatory conduct by retailers which, while not necessarily constituting a denial of services, nevertheless impinges on the 'benefits, privileges, terms, and conditions of the contractual relationship.'" Id.(citation omitted).
35
Subpart (3)(b) is written as an alternative to (3)(a) to account for situations in the commercial establishment context in which a plaintiff cannot identify other similarly situated persons. See id. at 708. Under this subpart, a retailer's "markedly hostile" conduct may "give rise to a rational inference of discrimination sufficient to support a prima facie case" without any evidence of how similarly situated persons were treated. Id. Factors relevant to subpart (3)(b)'s "markedly hostile" component include whether the conduct "is (1) so profoundly contrary to the manifest financial interests of the merchant and/or her employees; (2) so far outside of widely-accepted business norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of discrimination." Id.
36
We believe that while the three-part test employed by the district court in the instant case adequately represents the plaintiff's ultimate burden of proof in a §1981 action, it is inappropriate for use as a prima facie standard. Although plaintiffs advocate its use, we believe that it propagates the false notion that a plaintiff must provide direct evidence of the defendant's "intent to discriminate" as part of the first stage of the McDonnell Douglas/Burdine burden-shifting framework. Because the implementation of the three-part test would turn the purpose of the prima facie case on its head, we reject that test.
37
We also cannot adopt the four-part test put forth by the defendant in this case because it narrows the methods available to a plaintiff to prove intentional discrimination.8 By holding a plaintiff to the requirement that she produce similarly situated persons who were not discriminated against, we would be foreclosing other methods of proving intentional discrimination. This test is also particularly onerous because of the difficulty in replicating a particular shopper's experience. The challenge of locating similarly situated persons is highlighted by the case, Singh v. Wal-Mart Stores, Inc., No. Civ.A. 98-1613, 1999 WL 374184, *6 (E.D. Pa. June 10, 1999), to which Wal-Mart cites approvingly. In Singh, the district court rejected a plaintiff's §1981 claim where the plaintiff could not show he was similarly situated in all respects to other customers who were provided a different level of service. According to the district court, plaintiff's claim failed because he could not point to any other customer who "had attempted to return an out-of-warranty appliance, purchased another identical appliance and then again attempted to make a return the next day at the same store in the presence of an employee who witnessed the events of the prior day and had been alerted to a conversation in which the customer or his companion discussed replicating the purchase and using the new receipt to do a swap." Singh, 1999 WL 374184, *7. By virtue of its inflexibility and severity, the Singh court's "similarly situated" test virtually forecloses the possibility that a plaintiff could ever successfully raise a §1981 disparate treatment claim in the commercial establishment context.
38
Upon consideration, we conclude that the Callwood court's three-part prima facie test is the most useful to courts evaluating claims of race discrimination in the commercial establishment context and we therefore adopt it as our own. In a §1981 commercial establishment case, a plaintiff must prove:
39
(1)plaintiff is a member of a protected class;
40
(2)plaintiff sought to make or enforce a contract for services ordinarily provided by the defendant; and
41
(3)plaintiff was denied the right to enter into or enjoy the benefits or privileges of the contractual relationship in that (a) plaintiff was deprived of services while similarly situated persons outside the protected class were not and/or (b) plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.
42
The test's advantages are many. First, it best accounts for the differences in circumstances between employment and commercial establishment claims. The test offers the most traditional method of proving discrimination, namely by demonstrating discriminatory treatment with respect to similarly situated persons. It also allows a plaintiff to state a claim when similarly situated persons are not available for comparison, as will often be the case in the commercial establishment context.
43
Second, the language in subpart (3)(a) which makes actionable the deprivation of service, as opposed to an outright refusal of service, better comprehends the realities of commercial establishment cases in which an aggrieved plaintiff may have been asked to leave the place of business prior to completing her purchase, refused service within the establishment, or refused outright access to the establishment. It is thus in harmony with the promise of §1981(b), which guaranties all persons equal rights in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."
44
Finally, this broader protection also accords with our circuit precedent. In Watson v. Fraternal Order of Eagles, 915 F.2d 235, 243 (6th Cir. 1990), this court held that in order to state a claim for discrimination under §1981 a plaintiff need not actually be refused service by a private club because such a standard would allow "commercial establishments [to] avoid liability merely by refusing minorities entrance to the establishment before they had the chance to order." Id. UnderWatson, the plaintiff need only show that she intended to make a purchase and was asked to leave the establishment in order to prevent her from making the purchase on account of her race in order to satisfy the "make and enforce contracts" clause of §1981.9
C. Christian's §1981 Claim
45
Having determined the appropriate test to apply, we must now evaluate plaintiffs' claims to determine whether plaintiffs were intentionally discriminated against during the making or enforcement of a contract with Wal-Mart. Plaintiffs have attempted to create a presumption of intentional discrimination by proving that Monnot's and Clark's interaction with Christian deviated from Wal-Mart's established procedures regarding shoplifters. According to plaintiffs' theory, Clark is liable for Monnot's behavior under the doctrine of respondeat superior. Wal-Mart counters that Christian has not provided any evidence of disparate treatment as compared with other similarly situated shoppers.
46
The district court, evaluating Christian's evidence to determine whether "there is any legally sufficient evidentiary basis for a reasonable jury" to find intentional discrimination, determined that Christian could not establish a §1981 claim based either on Monnot's or Clark's actions. J.A. at 246. The district court first stated that "[t]he issue is whether Rose Monnot reasonably perceived a shoplifting situation and therefore acted on that perception and not on the basis of race." J.A. at 247. According to the district court, there was no evidence "that Rose Monnot treated this black woman Lois Christian any differently from the manner in which she would have treated a white person" or that Christian was "under constant surveillance." J.A. at 247-48. The district court concluded that "there is no evidence that [Christian] did not have the same right to make and enforce a contract because she was allegedly being watched." J.A. at 248. The court also stated that Christian was not discriminated against when she was asked to leave the store because "[t]he evidence is uncontroverted that Richard Clark is the one who made the decision" to ask the plaintiffs to leave and he was unaware of Christian's race. J.A. at 248.
47
We must engage in a de novo review of all the record evidence to determine whether Christian could establish, by a preponderance of the evidence, a presumption of discrimination through circumstantial evidence. We must reverse the district court if the plaintiffs presented sufficient evidence to raise a material issue of fact for the jury. Construing all disputed facts in favor of the plaintiffs, as we must do when reviewing a judgment granted as a matter of law, and granting them all reasonable inferences, we proceed on the assumption that Christian was offered assistance by Monnot six times during the hour and three quarters that she was in the store, that Christian did not place a toy in her purse, and that she had a shopping cart with several toys in it when she was asked to leave the store.
48
When we analyze Christian's case under our prima facie test, we easily conclude that Christian meets the first two prongs of the test. First, as an African-American, she is a member of a protected class. Second, we have no trouble concluding that Christian made herself available to enter into a contractual relationship for services ordinarily provided by Wal-Mart: the record reflects that she had selected merchandise to purchase, had the means to complete the transaction, and would, in fact, have completed her purchase had she not been asked to leave the store. This case involves none of the difficulties that other courts have encountered in determining whether there was a valid contract interest at stake. Cf. Bagley v. Ameritech Corp., 220 F.3d 518, 521 (7th Cir. 2000) (holding that assistant manager's statement "I will not serve [you]" plus her use of the middle finger directed toward plaintiff did not establish §1981 claim for refusal of service because plaintiff could have tried to receive service from other salespeople in store); Morris, 89 F.3d at 414-15 (noting that "claim for interference with the right to make and enforce a contract must allege the actual loss of a contract interest, not merely the possible loss of future contract opportunities" and rejecting plaintiffs' claim because they failed to demonstrate that they would have made a purchase had they not been asked to leave the store). Therefore, our analysis will focus on the third part of our prima facie test: whether Christian alleged sufficient facts to create a material issue of fact that she was deprived of services while similarly situated persons outside the protected class were not and/or that she received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.
49
Having thoroughly reviewed the trial transcripts, we believe that the testimony could have produced the following reasonable inferences regarding Monnot's discriminatory acts:10 1) Monnot watched and followed Christian but not Edens despite the fact that Christian had a shopping cart while Edens was shopping without a cart; 2) Monnot offered Christian assistance six times, but never offered to assist Edens; 3) Monnot commenced to watch Edens after realizing that the two women were together; 4) Monnot reported to her manager that she witnessed a shoplifting incident, which did not occur; and 5) Monnot directed the police to remove Edens from the store because she was with Christian. Taken alone, these inferences arguably create the presumption of an intent to discriminate in that these acts "are more likely than not based on the consideration of impermissible factors." Burdine, 450 U.S. at 254. Other facts brought out at trial also support the inference of discrimination. Monnot testified that, even prior to the zipper incident, she was suspicious of Christian and Edens because they had spent a long time in the toy department and they did not appear to have many items in their cart. J.A. at 162. Christian, on the other hand, had testified that her cart was half full at the moment when the zipper incident occurred. She stated that she had in it a Batman space ship, a large baby stroller, coloring books, books, crayons, and action figures. J.A. at 125. Christian's testimony, when taken in the light most favorable to her, casts doubt upon Monnot's assertion that Christian was behaving unusually or suspiciously prior to the zipper incident.
50
There are, however, undisputed facts that temper those that establish a prima facie case. First, as the district court indicated, Monnot attempted to cancel the call to the police. This piece of information is significant because it creates the inference that Monnot called the police solely to prevent what she perceived was shoplifting, not to exclude a black customer from shopping at Wal-Mart. Had Monnot's motivation been to prevent or intimidate Christian from purchasing merchandise, she would arguably have had no reason to try to call off the police. Because we must construe all facts in favor of the nonmovant at this stage of the proceedings, however, we cannot attach too much significance to the fact that Monnot attempted to turn the police away in light of the fact that we must presume that Monnot fabricated the shoplifting incident. Although both parties admit that a purse was unzipped, we must believe that Christian went into her purse for a personal item, not that she reached with one hand to place a toy in her purse and zipped her purse with her other hand, as Monnot testified. On the facts before us as we must find them, we believe that a reasonable jury could have inferred that Monnot's motivation for canceling the call to the police was because Monnot became ashamed or embarrassed by her actions or did not want to cause a scene, although she had wanted to have Christian removed from the store. By emphasizing the fact that Monnot tried to cancel the call to the police without considering that piece of evidence in the context of Christian's version of the events, the district court erred.
51
The other allegedly negative fact relied upon heavily by the district court was that Christian testified that her actions, as opposed to her race, gave Monnot cause to believe she was shoplifting. The following testimony was elicited by Wal-Mart's attorney from Christian on cross-examination:
52
Q:Isn't it true, it was your perception, is what made her [Monnot] jog up to you was the fact that you opened and closed your purse?
53
A:Yes.
54
* * *
55
Q:Because your perception was she thought you had concealed merchandise, or about to conceal merchandise because you just opened your purse?
56
A:Yes, but I showed her what I had put in my purse.
57
Q:Your perception was she approached you because she thought you were intending to steal merchandise?
58
A:Yes.
59
Q:You can understand how the zipping and unzipping of the purse late at night in a toy store where somebody has been an hour or two can be perceived that way?
60
A:Yes.
61
Q.The zipper was pretty loud, wasn't it?
62
A.Yes.
63
J.A. at 141-42. According to the district court, because Christian conceded that her actions gave rise to Monnot's suspicion, by Christian's own admissions Monnot's suspicion was not racially motivated. J.A. at 246-47 ("I'm going to repeat again, by plaintiff's own admission she testified she understood that it could be perceived as if she were stealing. And this Court believes that is critical, critical, evidence in this case.").
64
We are not convinced that this evidence is as critical as the district court thought it was. Christian conceded to broadly worded questions that Monnot approached her because Monnot could have believed she was shoplifting. What is left unasked and unanswered is the next logical question, namely did Christian believe that Monnot thought she was intending to steal merchandise because she was a black person who had unzipped her purse? A reasonable jury was not required to infer, based on Christian's concessions, that Monnot's actions were motivated exclusively by her concern that Christian was attempting to shoplift. Indeed, Christian's testimony does not tarnish the reasonable inference, established by the rest of Christian's testimony recounting how she had been watched, followed, and excessively offered assistance, that Monnot believed that Christian was more likely to shoplift because of her race. In other words, a jury could have believed that Monnot's suspicion was inextricably linked to race in that a store employee would never have been suspicious of a zipper noise had she not already targeted the customer as a potential shoplifter solely due to her race. In concluding that Christian's concession so overwhelmed the evidence favoring the plaintiffs such that no rational trier of fact could have found that plaintiffs were treated differently because of Christian's race, the district court impermissibly substituted its judgment concerning the weight of the evidence for the jury's.
65
At this point in the analysis, we must engage the question whether Clark's actions may be considered along with Monnot's for purposes of determining whether plaintiffs can establish a prima facie case because it was, after all, Clark's decision to remove the plaintiffs from the store that ultimately interfered with their right to contract. Wal-Mart asserts that Clark did not act with discriminatory intent and that he is not vicariously liable for Monnot's behavior. According to Wal-Mart, "the doctrine respondeat superior does not apply in a §1981 claim." Appellee's Br. at 17. The plaintiffs argue to the contrary. We believe this question is better phrased as whether Monnot's discriminatory animus may properly be imputed to Clark, the decisionmaker who excluded plaintiffs from the store based on Monnot's shoplifting accusation, for purposes of establishing a prima facie case of race discrimination.
66
The district court correctly asserted that there is no record evidence that Clark saw the plaintiffs or knew the plaintiffs' race before he asked them to leave. Despite this finding, we are not convinced that this question of fact is dispositive of the question of Wal-Mart's liability. For guidance, we turn to case law from other civil rights actions. We believe that the most analogous cases are those in the employment context in which an employee challenges his termination as improperly motivated by a supervisor's discriminatory animus and then seeks to impute that animus to the neutral decisionmaker who ultimately terminated the employee. In this circuit, we have held that, to complete a prima facie case under such circumstances, the plaintiff must offer evidence that the supervisor's racial animus was the cause of the termination or somehow influenced the ultimate decisionmaker. See Wilson v. Stroh Cos., 952 F.2d 942, 946 (6th Cir. 1992).
67
In Wilson, the plaintiff, a black factory employee, brought a Title VII claim alleging that his supervisor's racial animus led to his improper termination from his job at Stroh's. For purposes of the appeal, a panel of this court assumed the fact of the supervisor's discriminatory animus but noted that, even though the supervisor alerted Stroh's management to the conduct for which Wilson was ultimately fired, Wilson could not rebut Stroh's showing that he was fired by Stroh's general manager upon the recommendation of the industrial relations manager, who had conducted an independent investigation into the conduct forming the basis of Wilson's discharge. According to the panel, the fact of the independent investigation, coupled with the lack of evidence that the supervisor failed to report similar conduct by white employees, and the lack of evidence that management had relied on a false record created by the supervisor, was dispositive of the case. Ultimately, we held that the plaintiff could not make out a prima facie case of discrimination because he could not demonstrate any "causal nexus" between the decisionmaker's decision to terminate the plaintiff and the lower-level employee's racial animus. See Wilson, 952 F.2d at 946.
68
Other courts have relied upon a similar causal nexus requirement. In Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), the Seventh Circuit reviewed a plaintiff's claim that he was fired because of his age in violation of the Age Discrimination in Employment Act. The court first concluded that Shager had adduced evidence sufficient to survive summary judgment that Shager's supervisor intended to discriminate against Shager because of his age. The court then confronted the problem posed by the fact that Shager was fired, not by the supervisor, but by a hiring committee which was unaware of Shager's age when it decided to fire him. According to the Seventh Circuit, if the committee "acted as the conduit of [the manager's] prejudice -- his cat's paw -- the innocence of its members would not spare the company from liability." Shager, 913 F.2d at 405. Of course, if the committee "was not a mere rubber stamp, but made an independent decision to fire Shager," the court noted that there would be no basis for finding that the employer violated the Act. Id. at 406. Finding that the supervisor "set up Shager to fail" in his job duties and then portrayed Shager's performance "in the worst possible light" to the committee, the court concluded that the committee's decision to fire Shager "was tainted by [the supervisor's] prejudice" and that the supervisor's "influence may well have been decisive." Id. at 405. Based on this determination, the Seventh Circuit concluded that the fact that the committee was ignorant of Shager's age did not insulate the employer from liability for the supervisor's discrimination at the summary judgment stage, and that the question of the causal link between Shager and the committee's termination decision must be submitted to a jury.
69
We are persuaded by these cases that Clark's apparent ignorance of the plaintiffs' race does not shield Wal-Mart from liability and that if plaintiffs have offered sufficient evidence to show a causal nexus between Monnot's prejudice and Clark's decisionmaking, then plaintiffs' case may proceed. In this case, Clark was clearly the decisionmaker for Wal-Mart. He unequivocally testified that he was the senior manager at Wal-Mart in the early morning of December 15, 1997, J.A. at 191, and we know that he made the ultimate decision to have the plaintiffs escorted out of the store.
70
As to the question of a "nexus" or causality, the evidence put forward by Wal-Mart is that Clark never knew either shopper's race; this is so because he did not conduct his own independent investigation into the alleged shoplifting incident but instead, as Wal-Mart vigorously argues, relied exclusively on Monnot's version of the events when making his decision. Indeed, Wal-Mart averred in its brief that "Mr. Clark's decision to ask the police to remove the appellant from the store was based solely on suspicious [sic] arising from the 'zipper' incident." Appellee's Br. at 16. We agree with the district court's findings that Clark based his actions exclusively on Monnot's allegations, and on none of his own perceptions. This case is, therefore, completely unlike Wilson, in which the decisionmaker conducted an independent investigation into the conduct forming the basis for the plaintiff's discharge and credited that investigation in his decision to fire the plaintiff. On the contrary, this case is more like Shager, in which plaintiff presented evidence showing that the committee's decision to fire plaintiff was tainted by the supervisor's prejudice. In this case, like Shager, there is evidence that the decisionmaker "acted as the conduit of the [employee's] prejudice -- [her] cat's paw" -- and that the employee's "influence may well have been decisive." Shager, 913 F.2d at 405. We stated in Wilson that "[t]he determinative question is whether Wilson has submitted evidence that [the supervisor's] racial animus was a cause of the termination." Wilson, 952 F.2d at 946. Based on the evidence, we must conclude that Monnot's report of the zipper incident not only influenced Clark, it was the exclusive and decisive factor in his decisionmaking. We therefore conclude that Christian presented sufficient evidence for a jury to find that Monnot's racial animus may be imputed to Clark.
71
In light of this determination, we are persuaded that Christian provided sufficient evidence to create an inference of discrimination to support a prima facie case. Some of the evidence adduced at trial demonstrates that Christian was treated differently from a shopper similarly situated in all relevant respects, namely Edens. The testimony revealed that both women arrived together and were the only two shoppers in the toy department. The one who was selecting merchandise and placing it into a shopping cart, Christian, was inordinately offered assistance, while the other, who had no shopping cart, was left undisturbed. The only factual difference between these two shoppers, i.e., that Christian had a shopping cart, reinforces the inference of discrimination, because a customer with a cart presumably appears more serious about shopping than a patron who walks around without a cart. The evidence shows that Christian raised a genuine issue of fact as to whether she received services in a markedly hostile manner and in a manner which a reasonable person would have found objectively discriminatory. Again, for purposes of this appeal, we must conclude that Monnot reported a shoplifting incident which did not occur, the result of which was that Christian was forced to leave the store and forfeit her right to complete her purchase.
72
Viewed in this light, Christian raised a material issue of fact as to whether Monnot's behavior may be characterized as hostile and objectively discriminatory in that it was profoundly contrary to the manifest financial interests of Wal-Mart and far outside of widely-accepted business norms.
73
Once we have determined that plaintiffs have produced evidence to establish their prima facie case, we must then consider the second phase of the burden-shifting framework, namely whether Wal-Mart articulated a legitimate, non-discriminatory reason for its actions. Wal-Mart asserts that its legitimate reason was that Christian was suspected of attempted shoplifting. Clark, the ultimate decisionmaker, testified that he wanted the women removed from the store but denied that his decision was influenced by race. J.A. at 190. Because Wal-Mart's burden is one of production, not of persuasion, we must accept Wal-Mart's stated reason that it had both plaintiffs expelled from the store because of suspicion that Christian had attempted to shoplift.
74
After the defendant produces evidence of its non-discriminatory reason for its action, the presumption of discrimination falls away and the production burden shifts back to the plaintiff, who must prove by a preponderance that the defendant's stated reason was not its true reason, but was a pretext for discrimination. Reeves, 530 U.S. at 142-43. The plaintiff may attempt to prove that she was the victim of intentional discrimination "by showing that 1) the stated reasons had no basis in fact; 2) the stated reasons were not the actual reasons; and 3) that the stated reasons were insufficient to explain the defendant's action." Johnson, 215 F.3d at 573. In reaching the ultimate conclusion that the defendant intentionally discriminated, "it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 530 U.S. at 147. Specifically, as the Court explained in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993), "[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." This is so because "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Reeves, 530 U.S. at 147.
75
At trial, a jury would weigh Christian's credibility versus Monnot's and choose to believe one witness's testimony over the other. We are not permitted to engage in such a weighing process. As we have already explained, we must presume on review of a judgment as a matter of law that Christian did not shoplift and that Monnot's version of the events is untrue. If Christian did not shoplift, then Christian easily raised a jury issue as to whether Monnot fabricated the incident and then reported it to her supervisor, knowing that her supervisor would then order her to call the police and ultimately have the women removed from the store.11 In other words, a reasonable jury could have believed that Monnot's (and, by implication, Clark's) stated reason for interfering with Christian's right to contract had no basis in fact. Based on this disbelief, we believe that a reasonable jury, confronted with the facts before us, could infer the ultimate fact of discrimination from the falsity of Monnot's explanation combined with the evidence supporting the plaintiffs' prima facie case. At this point, plaintiffs have surmounted every evidentiary hurdle before them: their case must be submitted to the jury for final resolution. Therefore, we REVERSE the district court's grant of judgment as a matter of law to Wal-Mart on plaintiffs' §1981 claim.
D. Christian's State Law Claim
76
Christian's state law claim rises and falls with her federal claim because we evaluate Ohio state law discrimination claims generally under the same standard as federal discrimination claims. See Jackson v. City of Columbus, 194 F.3d 737, 756 (6th Cir. 1999). Therefore, we must REVERSE the district court's grant of judgment as a matter of law on Christian's state law claim because we have reversed the district court with respect to Christian's federal claim.
E. Edens's Claims
77
Because Edens's claims of discrimination are premised on a finding of discrimination against Christian, we mustREVERSE the district court's grant of judgment as a matter of law on Edens's federal and state law claims since we have reversed the district court with respect to Christian's claims.
III. CONCLUSION
78
For the foregoing reasons, we REVERSE the district court's grant of judgment as a matter of law and REMAND for a new trial.
Notes:
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation.
1
Monnot claims that she offered Christian assistance twice. J.A. at 149.
2
It is not clear from Eden's testimony when Monnot first saw the two women together.
3
We relate Monnot's version of the story although, for purposes of the standard of review in this case, we may ultimately credit only the nonmovant's version of any disputed facts.
4
Notably, the Second, Fifth, and Seventh Circuits did not characterize this test as a prima facie test. Instead, these circuits noted generally that a plaintiff must prove these three elements to prevail under §1981. A few subsequent district court cases and the Tenth Circuit have, however, implemented this three-prong test as the requirement for a prima facie case of discrimination. See, e.g., Holmes v. Dillard Dep't Store, No. Civ.A. 99-3444, 2000 WL 1725082, *2 (E.D. La. Nov. 17, 2000); Bobbitt v. Rage Inc., 19 F. Supp. 2d 512, 517 (W.D.N.C. 1998).
5
While the district court must not revisit the question whether the plaintiff has met its burden of proving a prima facie case when reviewing a motion for judgment as a matter of law after the case has been fully tried on the merits, see Kovacevich v. Kent State Univ. 234 F.3d 806, 821 (6th Cir.2000) (stating that "after a trial on the merits, a reviewing court should not focus on the elements of the prima facie case but should assess the ultimate question of discrimination"), we understand Wal-Mart's motion to have been granted at the close of plaintiff's case, see Appellee's Br. At 3 ("At the conclusion of Appellant's case, Appellee moved for directed verdict pursuant to Fed.R.Civ.P. 50"). Under the circumstances, in which the defendant has not proceeded with its case, see EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (noting that "a prima facie case is defined as 'sufficient evidence . . . to get plaintiff past a motion for directed verdict in a jury case . . .; it is the evidence necessary to require defendant to proceed with his case'") (quoting BLACK's LAW DICTIONARY 1190 (6th ed.1990)), it would have been appropriate for the district court to address the burden-shifting framework in its analysis, see Kovacevich, 224 F.3d at 828-29 (noting that district court is constrained to review whether there is a genuine issue with respect to the ultimate question of discrimination only "[a]fter the defendant has presented its case").
6
Of course, after establishing a prima facie case, the district court noted that the other aspects of the McDonnell Douglas/Burdine burden-shifting framework must be considered.
7
At least one other district court has adopted the test put forward in Callwood. See Lizardo v. Denny's, Inc., No. 97-CV-1234 FJS GKD, 2000 WL 976808, *3 (N.D.N.Y. 2000).
8
The defendant's four-part test would require a plaintiff to prove: (1) she is a member of a protected class; (2) she attempted to make, enforce or secure the performance of a contract; (3) she was denied the right to do so; and (4) the opportunity to make, enforce or secure the performance of a contract for like goods or services remained available to similarly situated persons outside of the protected class.
9
Although Watson was decided before the 1991 amendments to §1981, this portion of its holding is still good law.
10
Although Christian attempted to frame Monnot's violation of Wal-Mart's policy for shoplifters as proof of Monnot's intent to discriminate, Christian's evidence -- that Monnot failed to keep her eyes on Christian at all times and that the police were summoned before Christian reached the cash register -- are outweighed by Monnot's undisputed testimony that she was unaware of Wal-Mart's policy with regard to shoplifters, that she believed it was her responsibility to tell her manager about suspicious activity, and that she called the police because her manager ordered her to do so. Monnot cannot have deliberately violated Wal-Mart's shoplifting policy in an effort to exclude African-American shoppers if she were unaware of the policy. Therefore, we conclude that this aspect of Christian's theory of intentional discrimination is inadequate to establish a prima facie case. We will, however, consider the probative value of the various acts which were alleged at trial.
11
Of course, this inference would be weighed against the inference created by Christian's testimony that, although she did not attempt to steal anything, the act of unzipping her purse could have been caused Monnot to believe she was stealing.
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Opinion issued February 1, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00123-CV
GARY A. NICHOLSON, Appellant
V.
FIFTH THIRD BANK, Appellee
On Appeal from County Civil Court at Law No. Three
Harris County, Texas
Trial Court Cause No. 816148
O P I N I O N
Appellant, Gary A. Nicholson, appeals from a judgment rendered in favor of
appellee, Fifth Third Bank. We determine whether there was legally sufficient
evidence to support the trial court's judgment. We affirm.
Background
On May 17, 2004, Fifth Third Bank sued Nicholson for breach of contract and
quantum meruit. Fifth Third Bank sought to recover damages and attorney's fees for
Nicholson's unpaid credit-card debt. Nicholson filed a timely answer denying the
allegations in Fifth Third Bank's petition. Fifth Third Bank filed a "Notice of Filing
Business Record Affidavit," which attached included summaries of Nicholson's
account and copies of checks from Nicholson made payable to and deposited by Fifth
Third Bank.
Although Fifth Third Bank's petition was filed in County Civil Court at Law
No. Three, due to disruptions from Hurricane Rita, a different court--County Civil
Court at Law No. Four--presided over a trial on the merits on September 26, 2005.
That trial court ruled in favor of Fifth Third Bank and set a hearing for entry of
judgment on October 25, 2005. On October 5, 2005, Nicholson requested findings
of facts and conclusions of law and filed a motion for new trial. Nicholson's motion
for new trial was granted, and the matter was reset for a bench trial before County
Civil Court at Law No. Three.
On November 29, 2005, County Civil Court at Law No. Three conducted a
bench trial on the merits. The court entered judgment in favor of Fifth Third Bank
on January 23, 2006, from which judgment Nicholson appeals.
Legal-Sufficiency Challenge
In two issues, Nicholson argues that Fifth Third Bank's evidence is legally
insufficient because it was incompetent evidence and "there [was] no tender of said
evidence or any evidence to the court that has been properly recorded to sustain the
judgment or for this appeal."
Texas Rule of Appellate Procedure 13.1(a) provides that the court reporter must
make a full record of the proceedings "unless excused by agreement of the parties."
Tex. R. App. P. 13.1(a). However, section 52.046(a) of the Texas Government Code
provides that the court reporter shall record certain proceedings "[o]n request." Tex.
Gov't Code Ann. § 52.046(a) (Vernon 2005). Thus, some courts of appeals,
including this Court, have held that rule 13.1 conflicts with section 52.046, that
section 52.046 prevails, a party is thus required to request a record. See Washington
v. State, 127 S.W.3d 111, 113-15 (Tex. App.--Houston [1st Dist.] 2003, no pet.);
Polasek v. State, 16 S.W.3d 82, 88-89 (Tex. App.--Houston [1st Dist] 2000, pet.
denied) (en banc); Langford v.. State, 129 S.W.3d 138, 139 (Tex. App.--Dallas 2003,
no pet.); see also Nabelek v. Dist. Attorney of Harris County, No. 14-03-00965-CV,
2005 WL 2148999, at *5 (Tex. App.--Houston [14th Dist.] Sept. 8, 2005, no pet.).
It is the burden of the appellant to bring forward a sufficient record to show the error
committed by the trial court. Cf. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.
1990) (stating that burden is on appellant to present sufficient record to show error
requiring reversal).
When there is no reporter's record made and there are no findings of fact, we
assume that the trial court heard sufficient evidence to make all necessary findings in
support of its judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251
(Tex. App.--Houston [14th Dist.] 1999, pet. denied); see Sixth RMA Partners, L.P.
v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003) (citing BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002) and Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990)). That is, although an appellant may properly challenge the legal
sufficiency of evidence supporting the trial court's judgment against him, he cannot
prevail in any evidentiary challenge without first meeting his burden of presenting a
sufficient record on appeal. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991);
Englander Co. v. Kennedy, 428 S.W.2d 806, 806-07 (Tex. 1968); Roob v. Von
Beregshasy, 866 S.W.2d 765, 766 (Tex. App.--Houston [1st Dist.] 1993, writ denied).
Compare BMC Software, 83 S.W.3d at 795; Roberson v. Robinson, 768 S.W.2d 280,
281 (Tex. 1989) (holding that when appellate record includes reporter's and clerk's
records, implied findings of fact are not conclusive and may be challenged for legal
sufficiency).
Here, Nicholson failed to request that the court reporter record the November
29 hearing and that the trial court make findings of facts and conclusions of law for
the January 23 judgment. Nicholson requested findings of fact and conclusions of law
only for the first trial. Accordingly, because there is no reporter's record or findings
of fact due to Nicholson's failure to request them, we must assume that there was
sufficient evidence to support the trial court's judgment. See Schafer, 813 S.W.2d at
155.
We overrule Nicholson's two issues.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Alcala, and Hanks.
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323 S.W.2d 753 (1959)
Arthur PAIGE, Appellant,
v.
MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, and Terminal Railroad Association of St. Louis, a Corporation, Respondents.
No. 46789.
Supreme Court of Missouri, Division No. 2.
April 13, 1959.
Motion for Rehearing or to Transfer Denied May 11, 1959.
*755 Sherman Landau, St. Louis, for appellant.
Thompson, Mitchell, Thompson & Douglas, Harold I. Elbert, St. Louis, for respondent, Missouri Pacific R. Co.
Robert C. Ely, St. Louis, for respondent, Terminal R. R. Ass'n of St. Louis.
Motion for Rehearing or to Transfer to Court En Banc Denied May 11, 1959.
STOCKARD, Commissioner.
Appellant sustained personal injuries when an automobile operated by him was struck at a public crossing in East St. Louis, Illinois, by a train of the Missouri Pacific Railroad Company (hereafter referred to as Missouri Pacific) which was being operated on tracks belonging to Terminal Railroad Association of St. Louis (hereafter referred to as Terminal). The jury returned a verdict in favor of both defendants, and appellant has appealed from the judgment entered thereon.
Two sets of railroad tracks owned by Terminal intersect Market Avenue, an east-west street, at approximately right angles. On the morning of June 26, 1956, the streets were wet from a recent rain and appellant approached the crossing driving west on Market Avenue at 20 to 25 miles an hour. His view to the north down the railroad tracks was partially obstructed by a house, referred to in the evidence as the Haymore house, which was located approximately 38 feet north of the north curb of Market Avenue, and 34 feet east of the east rail of the tracks on which the Missouri Pacific train was traveling. There was considerable dispute in the evidence concerning the effect on appellant's ability to see an approaching train by reason of what appellant calls a tree, but which has the appearance in photographs to be a cluster of elm sprouts eight to ten feet tall and located immediately west of the Haymore house. As plaintiff approached the crossing he slackened the speed of his automobile to 15 or 20 miles an hour. Appellant testified that because of the "scrubbery" and an automobile parked in the Haymore driveway "I couldn't see nothing. I didn't hear nothing. I stopped." He later qualified this by stating that he was "right at the Haymore house, about in front of it when I hit my brakes," but that he "didn't stop dead still. I stopped long enough to know, see if anything was coming." When he, as distinguished from the front of his automobile, reached a position 28 feet east of the eastern rail of the tracks on which the train was traveling, he saw the engine of the train for the first time. It was traveling ten to twelve miles an hour, and appellant's automobile was moving ten or fifteen miles an hour, or a little less than that. The sudden appearance of the train scared him, and he did not apply his brakes. The train struck the right side of his automobile.
Appellant submitted his case as to Missouri Pacific upon the failure to sound warning signals, and as to Terminal upon the failure to provide adequate protective *756 devices at the crossing. On this appeal he first contends that "The trial court erred in denying plaintiff the right to introduce evidence of numerous other accidents at the grade crossing in issue for the purpose of proving the hazardous character of the crossing, and therefore the need for adequate protective devices at the crossing."
Jacob Christian, a sergeant on the East St. Louis police force and appellant's witness, was asked on direct examination if he had had "experience with accidents at this particiular intersection within a period of a few years prior to June 1956." Objection was made, and after a colloquy the trial court permitted an examination of the witness out of the presence of the jury. On this examination in response to questions by appellant's counsel Sergeant Christian testified that there had been "about four or five accidents in the last five years there." On cross-examination he stated that he had no personal knowledge of the accidents, except one, and that his information was obtained by reading police reports. As to the one accident of which he had personal knowledge, he stated that a brakeman was injured, apparently when a switch engine was backing up and a collision with an automobile resulted. He did not know the names of any of the parties or when or at what time of day the accident occurred, but he thought it was early in the morning. The trial court ruled as follows: "Now, I am not precluding you from anything in the future, from any other witness, but this testimony will not go in from this witness."
It is obvious that the trial court did not deny appellant the right to introduce evidence of other accidents occurring at the crossing, but that the court did no more than rule that the particular testimony offered was inadmissible, and in this respect the ruling was correct. The one accident of which Sergeant Christian had a limited personal knowledge was not shown to have occurred "under the same conditions at a given spot from the same cause," Charlton v. St. Louis & San Francisco Railroad Co., 200 Mo. 413, 98 S.W. 529, 538, but even if it is contended otherwise, appellant did not offer to prove by Sergeant Christian that the one accident of which he had some personal knowledge had previously occurred, but that about four or five accidents had occurred, and his knowledge concerning the other accidents was purely hearsay. See also, Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; Cameron v. Small, Mo.Sup., 182 S.W.2d 565; Blackwell v. J. J. Newberry Co., Mo.App., 156 S.W.2d 14, 20.
In connection with this point, appellant further asserts that when he sought on cross-examination to interrogate a witness of respondent Terminal concerning the frequency of accidents at the crossing, the court promptly sustained Terminal's objections and admonished plaintiff's counsel "Don't ask any more questions along that line." Appellant is less than candid in setting forth this contention. The record shows the following:
"Q. (By Mr. Landau) How many accidents have you investigated at that intersection in the last five years, Mr. Sanders?
"Mr. Ely: I object to that.
"A. It was the only one.
"Q. Were you called to that same intersection about four weeks ago? A. Yes.
"Mr. Ely: I will object to that, if the court please, and I will ask the court to declare a mistrial for that.
"The court: Come up.
"Mr. Elbert: Missouri Pacific joins in that.
"(Thereupon the following colloquy ensued among the court and counsel, at the bench, out of the hearing of the jury).
"The court: The court feels that that is a highly prejudicial question under *757 the circumstances, Mr. Landau. No, I am not going to declare a mistrial, but don't ask any more questions along that line, because I don't want to have to declare a mistrial."
The above excerpt from the record shows that the court directed the remark to questions concerning alleged accidents occurring over a year after the incident giving rise to this suit. Appellant makes no contention in his brief that questions of the witness along that line were proper.
Appellant's next point is that the trial court erred in denying him the right to introduce portions of his deposition which he contends were relevant to his cross-examination by respondents concerning other portions of the same deposition. A statement of what occurred is necessary.
Appellant testified that when he was driving west on Market Avenue an automobile was preceding him by about one-half block, and as that automobile approached the crossing "I saw his tail light go on, and he went on across." On cross-examination counsel for Terminal read to appellant from his deposition the following: "[Question] Did you look down the railroad tracks? Answer: I looked both ways. A car that was in front of me just crossed the track in front of me, and he didn't hit his brakes or nothing. I knowed there was nothing coming." When asked if he so testified on deposition, appellant stated that he could not "recall that answer," and that he did not make it. On redirect examination appellant then offered to show that subsequently in the same deposition he had made the following answers in reply to questions asked him: "[Question] He didn't change his speed in any way? [Answer] Well, when we got about the railroad track, I saw his brake light went on. Then he just went on across. [Question] About how long did you see his brake light on? [Answer] Just a flash. [Question] Just as though he hit it for a second and then he went on, is that right? [Answer] Then he went on." Upon objection by respondents, the trial court stated that appellant had not admitted making the earlier statement read to him from his deposition, and for that reason he would not permit appellant to show his prior consistent statements.
We are of the opinion that the trial court ruled correctly on the objection. While it is true that evidence of prior statements of a witness consistent with his testimony at the trial may be offered for the purpose of rehabilitating the witness when he has been impeached by the showing of prior inconsistent statements, Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681; Gough v. General Box Co., Mo.Sup., 302 S.W.2d 884, appellant did not admit he made the alleged prior inconsistent statement, and respondents made no offer of proof that he did. The record shows no more than that appellant was asked if he had previously made the statement read to him and he said he had not. Therefore, appellant was not impeached in the sense necessary to authorize proof of prior consistent statements for purposes of rehabilitation. McElhattan v. St. Louis Public Service Company, Mo.Sup., 309 S.W.2d 591. Appellant relies only on Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469, where under circumstances different from that here it was held that a party may not arbitrarily limit the use of a deposition by introducing only those parts favorable to him, and that if he offers portions only, the other party may introduce other portions containing competent and relevant testimony. Respondents did not introduce in evidence any portion of the deposition. This case is not applicable.
Appellant next contends that the giving of instruction 5 was error, which in its parts here material was as follows: " * * you are instructed that if you find and believe from the evidence that plaintiff drove his automobile at approximately 15 miles per hour as he came close to the tracks and that he did not look to his right down the tracks until he had passed the last point *758 where at that speed he would have been able to stop his automobile before reaching the rails on which the train was running, and if you find that plaintiff was negligent in driving at that speed and in failing to look to his right while he could stop, and if you find that his negligence caused or directly contributed to cause the collision, then you are instructed that plaintiff cannot recover against either defendant upon his claim that both or either of them were negligent and upon any such claim your verdict shall be against plaintiff and in favor of each defendant."
Appellant first contends "there was no evidence as to the distance within which plaintiff's automobile could have been stopped on the wet street and under the existing conditions." He refers to his own testimony on direct examination where he was asked, "Do you have any idea within what distance you could have stopped on that wet street?" and he replied, "No, sir, I don't." But, on cross-examination appellant was shown a photograph of the area of the crossing, and the following questions were asked of him and he gave the following answers:
"Q. Now, in relation to anywhere on that picture, will you tell us where was the last place that you would have been able to stop before you reached the tracks, considering the speed you were going, and the condition of the brakes on your car?
"A. Well, right about the driveway I could have stopped completely there right at the track.
* * * * * *
"Q. * * * The last place you would have been able to stop before you reached the tracks was when you were along even with the driveway into the Haymore house?
"A. Yes. Sir."
Appellant had previously testified that the pavement was wet. We need not look for other evidence in the record to support the submission of ability to stop. The above was sufficient. De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628.
Appellant next contends that instruction 5 erroneously assumes that at such point where he could have stopped his automobile, the obstructions to his view would not have prevented him from seeing the approaching train. This is, in substance, the frequently made contention that when submitting as negligence the failure to look or to maintain a proper lookout it is prejudicially erroneous not to require the jury to find that by looking the person could have seen. There is no doubt but that in a well worded and complete instruction this requirement should be included. But, the question is whether as worded the instruction in this case constituted a misdirection or was misleading and confusing. In Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10, under the factual situation of that case it was said: "In a primary negligence case it should be sufficient if a jury is authorized to find that a defendant was negligent specifically in failing to keep a proper lookout * * * and that such negligence directly caused plaintiff's injuries. * * * We think it unnecessary to submit the further hypothesis that by keeping a proper lookout defendant could have seen plaintiff." See also, Jenkins v. Wabash Railroad Company, Mo.Sup., 322 S.W.2d 788; Trzecki v. St. Louis Public Service Co., Mo.Sup., 258 S.W.2d 676; Lanio v. Kansas City Public Service Co., Mo.Sup., 162 S.W.2d 862, 866; Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, 693; Patton v. Hanson, Mo.Sup., 286 S.W.2d 829; Abernathy v. St. Louis Public Service Co., 362 Mo. 214, 240 S.W.2d 914. We are convinced that no jury would be caused to believe by this instruction that it could find that negligence in failing to look was the proximate cause of the collision if it found that by looking appellant could not have seen the approaching train.
*759 In addition to the above, we think there is a more convincing reason why the failure to require specifically a finding that appellant could have seen the train at the last place where he could have stopped short of the tracks was not prejudicial error here. As above set out, appellant testified unequivocally that he could stop short of the tracks when he was at the Haymore driveway. He also testified that there was nothing to obstruct his view to the right except the Haymore house, the tree or "scrubbery" to the west of the house, and an automobile parked in the driveway. The only testimony was that the train was traveling ten to twelve miles an hour and that appellant was traveling ten to fifteen miles an hour, or possibly a little slower than that. When appellant was at the driveway he was approximately 34 feet from the tracks on which the train was traveling. Therefore, the train had to be in the neighborhood of 34 feet north of the intersection, or only a few feet farther away. Under appellant's own testimony, which is undisputed, for the train and his automobile to arrive at the crossing at the same time the train necessarily had to have been in appellant's unobstructed view when he was at the place he testified he could have stopped before reaching the tracks. A simple geometrical triangulation unquestionably establishes this. In addition, appellant was shown a photograph taken when the camera was located at substantially eye level of the operator of an automobile located near the middle of Market Avenue at the Haymore driveway. In the photograph a Missouri Pacific engine located 95 feet north of the center of the crossing is clearly visible and there is no obstruction by the house or "scrubbery," and the location of the driveway clearly shows that if an automobile was parked where appellant said it was it would not be in the line of vision. Appellant testified that "If I had been where the camera was, I could have saw that train;" that if the train "had been that far back, it never would have hit me;" that when he was at the driveway the train was closer to Market Avenue than shown in the photograph; and that when the train is closer to Market Avenue than shown in the photograph it is easier to see. It is true that appellant also testified that he "did not have a clear view to the north along the railroad tracks until he reached a point where the front part of his automobile was up to the east rail," but this testimony in the form of a conclusion is in such irreconcilable conflict with the undisputed physical facts that it should and must be totally disregarded. See East v. McMenamy, Mo.Sup., 266 S.W.2d 728, 731. Under these circumstances it was not prejudicial error for respondents to fail to require in instruction 5 that if by looking appellant could have seen the approaching train.
Appellant next assigns as error the giving of instruction 12 which was as follows: "The Court instructs the jury that the mere fact of itself that plaintiff was injured and has brought suit claiming that defendants were negligent is no evidence whatever that defendants were in fact negligent or that plaintiff was exercising ordinary care for his own safety. Negligence or that plaintiff was exercising ordinary care for his own safety are not in law presumed, but must be established by proof as explained in other instructions. Neither are you permitted to base a verdict entirely and exclusively on mere surmise, guesswork and speculation; and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendants were negligent or that the plaintiff was exercising ordinary care for his own safety without resorting to surmise, guesswork and speculation outside of and beyond the scope of the evidence, and the reasonable inferences deducible therefrom, then it is your duty to, and you must, return a verdict for the defendants."
The first contention is that this instruction erroneously informed the jury that "the mere fact that plaintiff was injured was `no evidence whatsoever' of defendants' *760 negligence, despite the fact that the happening of the occurrence in issue was properly for the jury's consideration on the issue of the hazardous nature of the crossing" (emphasis added). We think, or at least we shall assume, that the "occurrence in issue" supports a tenuous inference that the crossing was not reasonably safe, and if the first sentence of this instruction had been worded to refer to the mere fact of the occurrence in issue, it then would be within the rule of Rittershouse v. City of Springfield, Mo.Sup., 319 S.W.2d 518; Dill v. Dallas County Farmers' Exchange, No. 177, Mo.Sup., 267 S.W.2d 677; and Jones v. Kansas City, Mo.Sup., 243 S.W.2d 318. However, the instruction refers to the "mere fact of itself that plaintiff was injured," that is, the reference is to the ultimate result of injury, not to the "mere fact of itself" of the collision or the occurrence in issue, which would have been a reference to an essential part of the causation bringing about the injury. This distinction is clearly set forth in Citizens Bank of Festus v. Missouri Natural Gas Company, Mo.Sup., 314 S.W.2d 709. We consider the first part of the instruction in this case to be comparable to the instruction considered in Le Grand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706, 712, where the court said that the instruction told the jury that "`the mere fact of itself (and without more) that plaintiff was injured' is no evidence of negligence. It thus limits such statement to the mere fact (alone and of itself) that plaintiff was injured. It thus does not even infer that the nature or character of plaintiff's injuries may not be some evidence of negligence." We are of the opinion that the instruction in this case does not infer that the fact of the "occurrence in issue" may not be some evidence of negligence.
What we have said is not to be taken to mean that the statement in an instruction that "the mere fact of itself that plaintiff was injured" can in no event be prejudicial. It was stated in Rittershouse v. City of Springfield, supra at page 521, of 319 S.W.2d that if the instruction in that case be "interpreted as alluding only to the `mere fact that plaintiff was injured," such instruction in a given case may be misleading and erroneous because the character of the injury may be a material link in the chain of circumstances tending to show negligence. Orris v. Chicago, R. I. & P. R. Co., 279 Mo. 1, 214 S.W. 124." See also, Temple v. Samuel Cupples Envelope Co., 318 Mo. 280, 300 S.W. 265. But, the facts of this case do not place it within the rule announced in those cases. Also, what we have said is not to be taken as recommending the universal use of an instruction worded as in this case. Referring again to Rittershouse v. City of Springfield, supra, it was also, said at page 521, of 319 S.W.2d that the decisions there reviewed "manifest the hazard of error in giving any kind of a mere fact instruction in any kind of a negligence case." It would be well for counsel contemplating the use of such an instruction to heed the advice given in Citizens Bank of Festus v. Missouri Natural Gas Company, supra, 314 S.W.2d at page 715, where appropriate language for such an instruction is set forth.
Appellant next contends that instruction 12 is prejudicially erroneous because it "advised the jury on presumptions, although presumptions are purely procedural and are for the court alone, not for the jury," and because it "required plaintiff" to `establish' his case, or to prove it beyond doubt, [which] is a higher burden than required by the laws of either Missouri or Illinois."
The answer to the first contention is found in West v. St. Louis Public Service Company, Mo.Sup., 236 S.W.2d 308, 312, where the court considered an instruction which was, for all practicable purposes, substantially identical with instruction 12, except that it did not contain the first sentence. It was there said: "The meaning of an instruction must be determined from its entiretly and not by considering only isolated words or phrases. * * * When the instruction is so considered, it has this meaning: Negligence is not a presumption *761 of law but it must be proved as explained in other instructions. If, upon all the evidence in the case, including reasonable inferences to be drawn therefrom, the jury is unable to make a finding that defendant is liable, they are not permitted to go outside of and beyond the scope of the evidence and reasonable inferences drawn therefrom, and base a verdict for plaintiff entirely and exclusively upon mere surmise, guesswork and speculation. If this is the meaning of the instruction (and we think it is), it is a correct statement of the law, in abstract form, * * *." The West case was a res ipsa loquitur case, and of course if the instruction was proper there, it certainly was permissible in this case.
Appellant relies primarily on Johnson v. St. Louis Public Service Co., Mo.Sup., 237 S.W.2d 136, in support of his contention that it was error to advise the jury that the negligence of defendants "must be established by proof as explained in other instructions." In the Johnson case the instruction did not contain the qualifying phrase "as explained in other instructions," and the court distinguished it on the basis that it contained "no such qualification" as that contained in Morris v. E. I. Du Pont De Nemours & Company, 351 Mo. 479, 173 S.W.2d 39, which qualification was only to the effect that the evidence must "point to" the fact of negligence or that the evidence must "preponderate" on that issue. Here the instruction unequivocally qualified the use of the word "established" by specific reference to the burden of proof instructions, and although appellant contends that there were too many burden of proof instructions, he does not contend that they were erroneous in substance. We find no prejudicial error in the giving of instruction 12.
Appellant next contends that the trial court "erred in unduly emphasizing plaintiff's burden of proof by giving multiple and lecturing instructions thereon."
In addition to instruction 12, heretofore set out and discussed, the trial court gave a burden of proof instruction at the request of each defendant. Appellant argues that "the cumulative effect of the three instructions was to constitute a strong lecture to the jury on their duty to defendants and not as to their duty with the respect to the whole case." However, we note that plaintiff gave a separate burden of proof instruction as to each defendant and a general burden of proof instruction pertaining to contributory negligence, or a total of three such instructions. There is no question but that there were too many burden of proof instructions in this case, but when considered on the basis of numbers alone, respondents did not offend in this respect any more than appellant. "`The matter of repetition or elaboration of the same proposition in instructions is generally considered to be within the discretion of the trial court and not to be reversible error where not considered so by the trial court. * * * The giving of repetitious instructions will not constitute reversible error unless it plainly appears that they were in fact calculated to confuse and mislead.'" Ford v. Dahl, 360 Mo. 437, 228 S.W.2d 800, 805; West v. St. Louis Public Service Co., supra. We do not think prejudicial error resulted to appellant on the basis that "multiple" burden of proof instructions were given at the request of respondents.
Appellant does not set out any reason why respondents' burden of proof instructions were prejudicial to him on the basis that they "lectured" the jury other than that there were three of them. The instructions are not unduly lengthy, and they are not comparable to those instructions criticized in Unterlachner v. Wells, Mo.Sup., 278 S.W. 79, and Ryan v. Burrow, 326 Mo. 896, 33 S.W.2d 928. But, as pointed out in Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, in those two cases the instructions were not held to be prejudicially erroneous on the basis that they lectured the jury. Every instruction, in one sense of the word, constitutes a "lecture" to the jury. Appellant has not demonstrated why these instructions were prejudicially erroneous as to him for that reason.
*762 Appellant next complains of instruction 11 which was as follows: "The Court instructs the jury that by the words `exercise of ordinary care for his own safety' as used in these instructions the Court means that degree of care which may be reasonably expected of an ordinarily prudent person in the situation of plaintiff at and just before the time the collision mentioned in evidence occurred, and in determining whether plaintiff was exercising ordinary care for his own safety you should take into consideration the fact that ordinarily prudent people know that railroad crossings are dangerous places and that a person approaching a crossing must approach the track with an amount of care commensurate with the known danger and that plaintiff was familiar with the crossing and the area surrounding the crossing." The specific objections to this instruction are that the "reference to `known danger' is positively misleading as intimating to the jury that plaintiff was aware of the approach of the train," and the instruction is misleading in its "reference to plaintiff's familiarity with `the area surrounding the crossing' and evades the crucial issue of obstructions to view at the crossing."
In support of his first objection appellant cites Wilson v. Terminal R. Ass'n of St. Louis, Mo.App., 121 S.W.2d 232, 238. In that case, which also pertained to a railroad crossing collision in Illinois, it was held that the trial court properly refused to give at defendant's request a verdictdirecting instruction which stated that even though the jury found that the railroad was negligent in the respects charged by defendant, if it further found that as plaintiff approached the crossing she did not use such care and caution for her own safety as was commensurate with the "known danger" of such crossing and that her failure caused or contributed to her injury, then she was not entitled to recover. The court stated that the instruction was "uncertain in its reference to the `known danger' of such crossing" because the chief danger lay in the immediate approach of the train, which danger was, under plaintiff's evidence, unknown to her. But, the court did not hold that the instruction, if it had been given, would have been erroneous for this reason. In fact, the court held that defendant had given ten other instructions, that reference was made in three of them concerning the degree of care required of plaintiff, and that "This number of given instructions should have amply sufficed for the protection of defendant's rights, and the court should therefore not be convicted of error for having refused to encumber the record with still an additional instruction upon a phase of the case as to which the jury had already been instructed."
A motorist who is familiar with the existence of a railroad crossing, and appellant admitted that he was familiar with this one, is unquestionably charged with knowledge that a train may be on or approaching the crossing and that there is a certain amount of danger in crossing it. This instruction stated that ordinarily prudent people know that railroad crossings are dangerous places, and we agree, and also that a person approaching the crossing must use care "commensurate with the known danger," that is, the known danger that trains frequently are on or are approaching crossings. We agree that in the Wilson case and in this case the "chief danger" was that a train was in fact approaching, which appellant testified he did not know, but instruction 11 does not assume that plaintiff knew the train was coming. It simply and plainly, and we think correctly, told the jury that in determining whether appellant was exercising ordinary care for his own safety it should take into consideration that a person who knowingly approaches a railroad crossing must use an amount of care commensurate with the knowledge that railroad crossings are dangerous, which, of course, may be something less than the care to be exercised if he actually knows a train is approaching the crossing.
*763 Appellant next objects to the phrase that "plaintiff was familiar with the crossing and the area surrounding the crossing." He contends that one of the issues was whether "plaintiff's range of vision as he approached the crossing was as narrowly restricted as shown by his evidence, or whether it was enlarged to the extent claimed by defendants." But, the instruction did not state or assume that appellant could or could not see the approaching train at any particular place. Appellant unequivocally testified that he was familiar with the crossing and the conditions there and that he had driven over it on hundreds of occasions. It is not reversible error to assume in an instruction that which is conceded, undisputed or uncontradicted by the evidence. Banks v. Koogler, Mo.Sup., 291 S.W.2d 883, 891. Appellant conceded that he was familiar with the crossing, and this is all that the instruction said.
The next contention of appellant pertains to a comment of the trial court, and it is necessary to set out the factual background leading up to it. Appellant's principal physician was Dr. Arthur Jackson who was a resident of Illinois. On a Tuesday morning during the presentation of appellant's case he testified that he had that morning been told by the doctor's wife that Dr. Jackson was "sick in bed" and could not be in court to testify. Near the close of the trial, respondents placed two investigators on the witness stand. One testified that on Tuesday afternoon he had gone to Dr. Jackson's office and had been examined by the doctor personally and had obtained a prescription signed by him. The second witness testified that he had gone to Dr. Jackson's office on Wednesday and had been examined personally by the doctor and had been given a prescription. Counsel for appellant, Mr. Sherman Landau, then was sworn as a witness for appellant and he testified at length to the steps he had taken to arrange for the attendance of Dr. Jackson. On cross-examination he testified that he did not take the deposition of Dr. Jackson; that he could have taken it "for any purpose, whether he will or will not be available;" that "Depositions, when properly admissible, are available for reading to the jury, if it is a jury trial;" and that "If I had taken his deposition, I would have offered it to the jury; whether it would have been admitted into the evidence by the court, I can't say." All of this was, of course, in the presence of the jury. During the oral argument by appellant's counsel to the jury, the following occurred:
"Mr. Landau: * * * We have been handicapped in the presentation of this claim by reason of the fact that so many of these people live in Illinois where we can't subpoena them and make them come in, where if they * * *.
"Mr. Elbert: I object to that and move for a mistrial, your Honor. He's got a right to take depositions of all these people.
"Mr. Landau: I think that my statement about the process of the Court is accurate, your Honor.
"The Court: Well, they can't be subpoenaed to come in. Depositions could be taken. The request for a mistrial will be denied.
"Mr. Landau: And we were particularly disappointed that Dr. Jackson didn't come in. He would not have added much, except that he could have given you the same details that Mr. Paige gave you * * *. We would rather have had Dr. Jackson here, and if we had known in time that he was going to be ill, or that for any reason he didn't want to come to his court, we certainly would have taken his deposition had we known in time, but we don't have it, and we are handicapped. We'd like to be able to present that additional information to you if we could."
Appellant's counsel argues that when respondents learned that Dr. Jackson would *764 not be available as a witness, they "exploited the resulting situation before the jury," and that in an effort to offset the "unjust prejudice" he commented to the jury that compulsory process of the courts of Missouri did not extend to Illinois. He then contends that the statement by the trial court that "depositions could have been taken" was so prejudicial under the circumstances to require a reversal of the judgment and a new trial.
The comment of appellant's counsel that "so many of these people live in Illinois" obviously was not directed to Dr. Jackson alone, but in any event if it was made concerning him, appellant's counsel had personally testified previously that he could have taken his deposition. Therefore, the court did not tell the jury anything that appellant's counsel had not personally told them, and what the court did say was a correct statement of law made in ruling on an objection. McNeill v. Fidelity & Casualty Co. of New York, 336 Mo. 1142, 82 S.W.2d 582. Appellant did not enter an objection to the statement of the trial court if he then considered it to be prejudicial, and he did not ask the court to take any action to purge the now alleged wrongful effect of the statement. Brawley v. Esterly, Mo.Sup., 267 S.W.2d 655. We find no error prejudicial to appellant.
Appellant's last contention is that the trial court erred in overruling his challenge for cause to juror Kulikowski, and in support thereof he quotes three questions and answers on voir dire which does not present a complete picture of the situation. This juror stated that he had in the past worked for the St. Louis Public Service Company as a bus and streetcar operator and had been involved in some accidents but was never called to court. He did not know what the settlements were, "so I don't think it would have any tendency for me to go one way or the other." Mr. Landau then asked: "Do you think you would be inclined to lean a little bit in favor of the carrier as against the individual operator of the automobile?" The juror replied: "Well, from what my recollection was and everything to these, I don't think I could be justified in giving a verdict, so I think * * *." Mr. Landau then interrupted to state he appreciated the juror's frankness, and Mr. Kulikowski continued: "Because I have worked for them, and I know how these accidents, complications and everything that come in, and I don't think that I could sit here." At this point appellant's counsel asked that Mr. Kulikowski be excused. The following then occurred:
"Mr. Ely: If you sat as a juror in this case and listened to the evidence that is presented here by both sides, and as a member of a jury panel, were instructed that you are to decide the facts in this case according to the instructions of law that are given to you by the Judge, would you be able to return a verdict based on those facts as you decide them to be in this case, without regard to what you may know of the result of either a settlement or a trial in another lawsuit which involved entirely different facts?
"Mr. Kulikowski: I think I could, sir.
"Mr. Ely: So that what you tried to tell us, as I understand it, was that you had some knowledge of results in previous claims or trials; is that right?
"Mr. Kulikowski: That's right, sir.
"Mr. Ely: Now, you understand, do you not, that each trial or claim is entirely different from one another?
"Mr. Kulikowski: That's right.
"Mr. Ely: And do you believe that if you did sit as a juror and listened to the facts, that you could decide fairly, without being prejudiced or influenced for one side or the other?
"Mr. Kulikowski: I think I could, sir.
* * * * * *
*765 "The Court: Mr. Kulikowski, in all lawsuits all any one is entitled to is a fair and impartial trial. Now if you feel that you have any leaning one way or the other in a case of this kind, without the benefit of the knowledge and of the evidence and the law, I want you to so state now. Do you feel that you have such a leaning?
"Mr. Kulikowski: No, I don't, sir.
"The Court: In other words, having worked for a carrier, I want to know whether or not you would be more sympathetic with the carrier's side of a lawsuit than you would with the plaintiff's side, other things being equal?
"Mr. Kulikowski: I don't think I would, sir.
"Mr. Ely: Does the juror say he does not think he could give a fair trial?
"Mr. Kulikowski: I think I could.
"Mr. Ely: I couldn't quite understand what he said.
"The Court: All right. The challenge will be overruled."
"`The trial judge is and should be vested with broad discretion in determining the qualifications of veniremen to sit as jurors and his rulings should not be disturbed unless they are clearly and manifestly against the evidence.'" Strahl v. Turner, Mo.Sup., 310 S.W.2d 833, 841. The juror did not admit any prejudice against appellant or to a class of which he was a member. He did not indicate any basis for disqualification after his first answers were explained by subsequent examination. The trial court and not Mr. Kulikowski was the judge of his qualifications as a juror, Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, and from the record we certainly cannot say that the trial court abused its discretion in overruling appellant's challenge for cause of this juror.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
STORCKMAN, P. J., EAGER, J., and BROADDUS, Special Judge, concur.
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911 F.2d 786
1990 A.M.C. 2705, 286 U.S.App.D.C. 44,59 USLW 2179,1990-2 Trade Cases 69,153
AMERICAN ASSOCIATION OF CRUISE PASSENGERS, INC., Appellee,v.CARNIVAL CRUISE LINES, INC., et al., Appellants.
No. 88-7229.
United States Court of Appeals,District of Columbia Circuit.
Argued Nov. 16, 1989.Decided Aug. 24, 1990.
J. Michael Cavanaugh, with whom David C. Nolan, Stuart S. Dye, and Mary Boney Denison for Kloster Cruise Ltd., Mark E. Warren and Phillip H. Rudolph, for The Peninsular and Oriental Steam Navigation Co., et al., David L. Roll and Virginia L. White-Mahaffey for Carnival Cruise Lines, Inc., Burton A. Schwalb for Marriott Corp. d/b/a Sun Line Cruises, Sanford M. Litvack, Royal Caribbean Cruise Line, Inc., Edward Schmeltzer for CLIA, Michael Joseph for Ocean Cruise Lines, Inc., and Edward P. Henneberry for Holland America Line-Westours, Inc., were on the brief for appellants. Paul M. Honigberg for Cruise Lines Intern. Ass'n also entered an appearance, for appellants.
Paul C. Warnke, with whom John G. Calendar and Harold E. Kohn were on the brief, for appellee.
R. Frederic Fisher and Lawrence N. Minch for Transpacific Westbound Rate Agreement, Jeffrey F. Lawrence for The Asia North America Eastbound Rate Agreement and Howard A. Levy, for Gulf-European Freight Ass'n, et al., were on the brief, for Amici Curiae Transpacific Westbound Rate Agreement, et al.
Robert D. Bourgoin, Gen. Counsel, and John C. Cunningham, Atty., Federal Maritime Com'n, were on the brief for Amicus Curiae Federal Maritime Com'n, urging reversal. Robert J. Wiggers, Atty., Dept. of Justice, also entered an appearance, for FMC.
Before MIKVA, SILBERMAN, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
1
The American Association of Cruise Passengers (AACP), which is a travel agency, brought an antitrust action against several vacation cruise lines and two trade associations, alleging an unlawful boycott agreement among them. The district court denied the defendants' motion to dismiss, which was based upon their assertions that a cruise line is a "common carrier" within the meaning of Sec. 3(6) of the Shipping Act of 1984, 46 U.S.C.App. Sec. 1702(6), and that an agreement to which cruise lines are parties is therefore subject to the exclusive jurisdiction of the Federal Maritime Commission.
2
We hold that, except to the extent that a cruise calls only at foreign ports, a cruise line is a common carrier under the Shipping Act; to the extent that it is a common carrier, the FMC has exclusive jurisdiction to adjudicate this dispute. With respect to a cruise that calls only at foreign ports, however, the district court has jurisdiction under the Clayton Act. Hence, we affirm in part, and reverse in part.
I. BACKGROUND
3
The AACP sued various vacation cruise lines, the Cruise Lines International Association, and the American Association of Travel Agents (hereinafter collectively "defendants" or "carriers"), alleging that they engaged in a concerted refusal to deal with the AACP, in violation of federal and state antitrust laws. In its complaint, the AACP defines "vacation cruises" to "include but not be limited to any travel by a person as a passenger on a cruise ship for vacation purposes." It seeks treble and punitive damages, as well as injunctive relief, under Secs. 4 and 16 of the Clayton Act, 15 U.S.C. Secs. 15, 26, under the Maryland Antitrust Act, Commercial Law, Sec. 11-204, and on the common law claim that the defendants' conduct constituted a tortious interference with its business relationships.
4
The carriers filed motions to dismiss on the ground that the district court lacks jurisdiction over the federal anti-trust aspect of this dispute (and hence over the state law claims pendent thereto). Section 7(c)(2) of the Shipping Act provides: "No person may recover damages ... or obtain injunctive relief under [the Clayton Act] for conduct prohibited by [the Shipping Act]." 46 U.S.C.App. Sec. 1706(c)(2). The carriers asserted that the Shipping Act prohibits a boycott of the type that the AACP alleges--they pointed specifically to Sec. 10(c)(1) of the Shipping Act, which prohibits "two or more common carriers" from engaging in a "boycott or tak[ing] any other concerted action resulting in an unreasonable refusal to deal," id. Sec. 1709(c)(1)--and that the antitrust claim is therefore subject to the exclusive jurisdiction of the FMC. The AACP opposed the motion to dismiss, arguing that a cruise line is not a "common carrier" within the meaning of Sec. 3(6) of the Shipping Act, and is therefore not subject to the prohibition of boycotts therein.
5
The district court denied the carriers' motion to dismiss, holding that a cruise line is not a common carrier under the Act. The court stayed the proceedings, however, pending our review of Petchem, Inc. v. Canaveral Port Authority, 23 Ship.Reg.Rep. (P & F) 974, 983-85 (1986), in which the FMC had held that a ship sailing from and to Europe, which let passengers disembark temporarily at Port Canaveral, Florida for a visit to Disney World, and a ship offering voyages from Port Canaveral to the Bahamas, are common carriers. The Commission based this decision upon several factors: a cruise comes within the common meaning of "transportation," i.e., the conveyance of cargo or passengers; the Act "plainly include[s] carriers of passengers"; the Congress did not distinguish between one-way and round-trip passenger service, nor exclude trips solely for pleasure; and, because there is no longer a significant amount of one-way passenger service at sea, excluding vacation cruises from the coverage of the Act "would amount to an abandonment of [the FMC's] responsibilities" thereunder. Id. at 984-85. As it turned out, however, we did not, in Petchem, reach the issue of whether a cruise line is a common carrier. Petchem, Inc. v. FMC, 853 F.2d 958, 961 (C.A.D.C.1988).
6
Following our non-decision in Petchem, the district court returned to this case and granted defendant Cunard Lines' motion to dismiss. Based upon its finding that "Cunard is primarily in the business of providing transportation, in contrast to round-trip cruises," the court decided that it is a common carrier under the Act. The court thus held that the FMC has exclusive jurisdiction over the claims against Cunard.
7
The district court also reaffirmed its decision that, because the other defendants are not common carriers under the Act, the court has jurisdiction over the claims against them. At the same time, the court certified the remaining defendants' application for interlocutory appeal of this issue, pursuant to 28 U.S.C. Sec. 1292.
8
The carriers argue that the plain language and the legislative history of the Shipping Act, and the FMC's consistent interpretation of the Act (and of its predecessor, the Shipping Act of 1916), all lead to the conclusion that a cruise line is a common carrier. They also assert that when the Congress passed the 1916 and the 1984 Acts, it adopted the common law, under which a cruise line was held to be a common carrier. Lastly, the carriers contend that the approach taken by the district court, in which a cruise line is a common carrier if it is "primarily involved in point-to-point," as opposed to round-trip, transportation, creates just the kind of jurisdictional dichotomy that the Congress sought to avoid when it passed the Shipping Act.
9
The Commission, as amicus curiae, supports the carriers' claim that cruise lines are common carriers, and contends that its decision to that effect in Petchem is entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).
II. ANALYSIS
10
Without deciding how much, if any, deference we owe to the Commission's interpretation of the term "common carrier," we hold that a cruise ship is a common carrier under the Shipping Act if it travels between a U.S. and a foreign port.
A. Standard of Review
11
Our decision addresses only issues of law. Therefore, we do not defer to the views of the district court. See, e.g., Molerio v. FBI, 749 F.2d 815, 820 (D.C.Cir.1984).
12
That a cruise line is a common carrier under the Shipping Act is a jurisdiction-enlarging position, to which the Chevron rule of deference to the agency's statutory interpretation may or may not apply. See, e.g., Business Roundtable v. SEC, 905 F.2d 406, 408 (D.C.Cir.1990) (collecting cases that discuss whether an agency's interpretation of statute "delimiting its jurisdiction" is entitled to deference). We need not decide how much deference to accord the FMC's decision in Petchem, however, because after an independent examination of the issue before us, we arrive at essentially the same conclusion as does the Commission.
B. U.S.-Foreign Cruises
13
Section 3(6) defines "common carrier" to mean:
14
a person holding itself out to the general public to provide transportation by water of passengers or cargo between the United States and a foreign country for compensation that--
15
(A) assumes responsibility for the transportation from the port or point of receipt to the port or point of destination, and
16
(B) utilizes, for all or part of that transportation, a vessel operating on the high seas or the Great Lakes between a port in the United States and a port in a foreign country....
1. Textual Arguments
17
Although Sec. 3(6) does not expressly mention cruise lines, the natural reading of that provision leads to the conclusion, contra the district court, that a U.S.-foreign cruise ship is a common carrier regardless of whether it is engaged in one-way or round-trip transportation.
18
First. A cruise line clearly "hold[s] itself out to the general public to provide transportation by water." Nothing on the face of the Shipping Act suggests that the Congress equated "transportation" with "point-to-point" conveyance, and thereby excluded cruises. Moreover, the reference to "passengers" in the definition of common carriage strongly suggests that the Congress did not intend so to limit the meaning of "transportation." As the Commission noted in Petchem, by 1984 virtually all passenger service that could come within Sec. 3(6) consisted of cruises. (Ferries are expressly excluded, and there was by then almost no point-to-point passenger service left in ocean transportation.) Thus, if cruises are not common carriers, then there are no common carriers of passengers of which to speak. Yet speak of them the Congress did. Rather than imply that the Congress addressed an empty set, we infer that it had cruise ships in mind when it regulated common carrier passenger service. Cf. National Ass'n of Recycling Industries, Inc. v. ICC, 660 F.2d 795, 799 (D.C.Cir.1981) ("effect must be given, if possible, to every word ... of a statute ... so that no part will be inoperative or superfluous, void or insignificant" (citations omitted)).
19
Second. The AACP also contends that a cruise ship does not fall within the scope of Sec. 3(6) because it does not "assume[ ] responsibility for the transportation" of its passengers. The AACP points out that a typical cruise contract contains a "port-skipping" provision, which it says allows a cruise ship, "at its own discretion and with no further responsibility to the passenger, [to] omit any scheduled and advertised port of call."
20
We are unwilling to attribute so much significance to this contractual disclaimer. First, we note that courts have read into this type of contract term an implicit promise by the carrier not to deviate arbitrarily from the cruise ship's published schedule. See, e.g., Amoco Transp. Co. v. S/S Mason Lykes, 768 F.2d 659, 662-63 (5th Cir.1985). Especially with this gloss upon the contract, we think that a cruise line may assume responsibility for its passengers' transportation without being bound to a specific itinerary.
21
In the carriage of goods or passengers point-to-point, the carrier may not discharge its responsibility for transportation if it contracts to take one, or the car one is shipping, to Jamaica, where one's business appointment or empty garage is waiting, but then substitutes Antigua as its port of call. Not so with a cruise. The purpose of taking a cruise, after all, is to enjoy a relaxing holiday aboard ship, generally while still visiting an unfamiliar place ashore. The cruise ship assumes responsibility for that transportation, and can substantially discharge its responsibility even if circumstances require it to skip, or to substitute, a port of call. Getting there, in other words, is more than half the fun.
22
Finally. The AACP asserts that the requirement in Sec. 3(6) that a common carrier assume responsibility "from the port or point of receipt to the port or point of destination" excludes cruise ships from its scope because the "port of receipt" cannot mean the same place as the "port of destination." That is an improbably restrictive interpretation of the statutory terms, however. The Congress undoubtedly meant only that the carrier must assume responsibility from the place at which it picks up passengers to the place at which it had agreed to discharge them; there is no reason to think that it was concerned with whether the two points were one and the same or different.
2. Legislative History
23
Having concluded that a cruise line comes within the terms of Sec. 3(6), we turn to the legislative history of that section, but only in order to ensure that our straightforward reading is not "demonstrably at odds with the intentions of [the] drafters" of the Act. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982). That it is not.
24
The AACP's principal arguments from the legislative history are that the Congress's purposes in enacting the Shipping Act were unrelated to the regulation of cruise lines, and that the subject of cruise lines never arose during the legislative deliberations. Although we are not convinced that the Congress's goals are inapplicable to cruise lines, we can agree that when the Congress enacted the Shipping Act in 1984, it focused almost entirely upon the carriage of goods, rather than of passengers. This observation is far from dispositive, however, for two reasons.
25
First. As we have already discussed, the Congress retained in the definition of common carrier the 1916 Act reference to passengers; thus, despite the focus upon cargo in the legislative history of the 1984 Act, the Congress quite clearly did not intend to narrow the Commission's jurisdiction to the transportation of goods. Even if the Congress's motivation for passing a new Shipping Act in 1984 related exclusively to the transportation of goods, that would have no bearing upon whether a cruise line was a common carrier under the 1916 Act and, therefore, whether it remained so under the 1984 Act.
26
Second. Although the 1916 Congress almost surely had point-to-point, rather than cruise, passenger transportation uppermost in mind, since that was the predominant type of passenger ship service at the time, cruise lines were not then unknown; there is no reason now to exclude cruise lines from the statutory coverage of passenger service merely because point-to-point service having fallen off, cruise lines are now the predominant part of the industry. As Justice Scalia stated in K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325, 108 S.Ct. 1811, 1835, 100 L.Ed.2d 313 (1988) (concurring in part):
27
[E]ven those who would support the power of a court to disregard the plain application of a statute when changed circumstances cause its effects to exceed the original legislative purpose would concede, I must believe, that such a power should be exercised only when (1) it is clear that the alleged changed circumstances were unknown to, and unenvisioned by, the enacting legislature, and (2) it is clear that they cause the challenged application of the statute to exceed its original purpose.
28
In this instance, the AACP has made neither showing.
29
The only reason that the AACP advances for thinking that the Congress might have intended to exclude cruise lines from the scope of the Commission's authority to regulate common carriers is that it would not have wanted to extend to them the antitrust immunity of the Act. See 46 U.S.C.App. Sec. 1706. Even as common carriers, of course, cruise lines are still subject to the prohibition against refusals to deal in Sec. 10(c)(1) of the Act. See 46 U.S.C.App. Sec. 1709(c)(1). Moreover, while it does seem unfortunate to subject a workably competitive industry to common carrier regulation, that is by no means unusual in the transportation sector, as illustrated by airlines, motor carriers, and intercity buses. (The difference, of course, is that by 1984 the Congress or the regulatory agencies had, after some decades, substantially deregulated all those modes.)
30
In any event, it is much more likely that the Congress intended to regulate cruise ships as common carriers than it is that the Congress intended to divide jurisdiction over boycott allegations between the FMC and the district court depending upon whether a particular cruise line is "primarily involved in point-to-point carriage of passengers." We cannot imagine, much less find, any reason to think that the Congress, when it passed the Shipping Act, intended that the Commission's reach depend upon whether the passengers of the particular carrier tend to travel one-way more often than round-trip, or upon whether a majority of the passengers want to be left at another location rather than just to enjoy the ocean journey for its own sake.
C. Foreign-to-Foreign Cruises
31
We agree with the AACP that a cruise that begins and ends at a foreign port, and does not stop at a domestic port, does not constitute common carriage under the Shipping Act. The definition of a common carrier in Sec. 3(6) twice refers to the need for some contact with the United States:
32
"common carrier" means a person holding itself out to the general public to provide transportation ... between the United States and a foreign country ... that ... utilizes, for all or part of that transportation, a vessel operating on the high seas or the Great Lakes between a port in the United States and a port in a foreign country.
33
46 U.S.C.App. Sec. 1702(6) (emphases added). The statute thus unambiguously provides that, in order to be a common carrier, a ship must call at a port in the United States. See also S.Rep. No. 3, 98th Cong., 1st Sess. 19 (1983) (definition in Sec. 3(6) "applies only to the extent the passengers or cargo transported are loaded or discharged at a U.S. port"); Foreign-to-Foreign Agreements--Exemption, Docket No. 87-24, 53 Fed.Reg. 50,264 (1988), recon. denied (Oct. 11, 1989) (Commission proposal to allow ocean carriers to file agreements relating to foreign-to-foreign service, which would have extended to them antitrust immunity, withdrawn for want of jurisdiction, in part because Sec. 3(6) reaches only transportation between the U.S. and a foreign port).
34
The carriers contend, nonetheless, that the Commission has exclusive jurisdiction to adjudicate this dispute, even with respect to any wholly foreign cruises subject to the alleged boycott agreement. The carriers' theory is that the Commission has exclusive jurisdiction with respect to any agreement among common carriers, regardless of whether it applies in part to their non-common carriage activities, and regardless of whether a non-common carrier is also a party to the agreement. We note that the Commission itself appears to have reached the opposite conclusion. In a December 12, 1988 letter to the carriers, it said that it "no longer asserts jurisdiction over those allegations of [the AACP] that concern passenger voyages having no contact with the United States."
35
Having, in the FMC, a single forum for all boycott cases might be more efficient, but we see no basis in the statute for holding that the Commission's power is exclusive with respect to the non-common carriage aspects of an agreement that would clearly be within the jurisdiction of the district court if other aspects of the agreement did not implicate common carriage. Although Trans-Pacific Freight Conference of Japan v. FMC, 314 F.2d 928, 932-33 (9th Cir.1963), suggests that the Commission does, in some circumstances, have jurisdiction over non-common carriage components of an agreement among common carriers, that case does not support the carriers' argument. First, the issue in that case--whether the Commission may review a fine imposed by an allegedly neutral body pursuant to a conference agreement--concerned the agreement generally, not just the non-common carriage components thereof. Second, and more important, neither Trans-Pacific, nor any other case that the carriers cite, states that the district court does not have jurisdiction over the non-common carriage aspects of an agreement among common carriers.
III. CONCLUSION
36
We hold that a cruise line is a common carrier within the meaning of Sec. 3(6) of the Shipping Act, except insofar as it travels only between foreign ports. To the extent that a cruise line is a common carrier, but to that extent only, a boycott agreement to which cruise lines are parties is subject to the prohibitions and procedures of the Shipping Act, rather than to those of the Clayton Act. To the extent that the district court held otherwise, we reverse and remand this matter for further proceedings.
37
We recognize that our holding may potentially result in some parallel litigation, before the FMC and in the district court. This is not, however, the sort of jurisdictional overlap that the Congress sought to avoid when it passed the Shipping Act. Instead, the Congress was concerned about a carrier being subject to "parallel jurisdiction," i.e. remedies and sanctions for the same conduct made unlawful by both the Shipping Act and the antitrust laws. See H.R.Rep. No. 53, 98th Cong., 2nd Sess., pt. 1, at 12 (1983), U.S.Code Cong. & Admin.News 1984, 167, 177. Under our ruling today, the carriers are subject to the power either of the district court, for the non-common carriage, or of the Commission, for the common carriage, aspects of their agreement, but in no case to both.
38
Were we to conclude otherwise, and submit the non-common carriage components of an agreement among common carriers to the exclusive jurisdiction of the Commission, then the parties to an agreement that violates the Clayton Act could avoid the jurisdiction of the district court merely by including in their unlawful agreement an aspect that is within the jurisdiction of the FMC, because it runs afoul of the anti-boycott provision (or perhaps another prohibition) in the Act. If nothing else, the effect would be to deprive the antitrust plaintiff of the right to treble damages under the Clayton Act, remitting it to double damages under Sec. 11(g) of the Shipping Act, 46 U.S.C.App. Sec. 1710(g). There is no warrant in the Shipping Act for such a hostile takeover of the Clayton Act.
39
We leave it to the district court to consider whether, when the FMC has jurisdiction over some aspect of an agreement in suit before the court, there is a mechanism that would enable it to avoid proceedings duplicative of those before the Commission. While we must abide the allocation of jurisdiction that the Congress made, as between court and agency, we should also strive to minimize the costs of it.
40
So ordered.
| {
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Case: 14-13509 Date Filed: 12/11/2015 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13509
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20816-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GARCIA,
a.k.a. Willie,
a.k.a. Jorge W. Perez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 11, 2015)
Before TJOFLAT, JORDON and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 14-13509 Date Filed: 12/11/2015 Page: 2 of 12
In a multi-count indictment, William Garcia and Assnay Fernandez were
charged with conspiracy to produce, use and traffic counterfeit access devices, i.e.,
counterfeit credit cards and debit cards, in violation of 18 U.S.C. § 1029(a)(1), and
Garcia was charged in one count of one count of credit card fraud, in violation of
18 U.S.C. § 1029(a)(1) and (2), and thirteen counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) and 2. Fernandez pled guilty to the
conspiracy charge. Garcia stood trial, and the jury convicted him on all counts
except three of the aggravated identity theft counts. The District Court sentenced
Garcia to prison sentences totaling 112 months. He appeals his convictions,
contending that the evidence failed to establish that he was using the counterfeit
credit cards. He appeals his sentences as procedurally and substantive
unreasonable. We consider first Garcia’s appeal of his convictions, then address
the appeal of his sentences.
I.
We review the sufficiency of evidence de novo, taking the evidence in the
light most favorable to the Government and accepting all reasonable inferences in
favor of the verdicts. United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008).
The question is whether a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Silvestri, 409 F.3d 1311, 1327 (11th
Cir. 2005). Credibility questions are for the jury. We assume that the jury
2
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answered them in a way that supports their verdicts. United States v. Jiminez, 564
F.3d 1280, 1285 (11th Cir. 2009).
18 U.S.C. § 1029(a)(1) criminalizes “knowingly and with intent to defraud
produc[ing], us[ing], or traffic[king] in one or more counterfeit access devices.”
18 U.S.C. § 1029(a)(1). Intent to defraud refers to “the specific intent to deceive or
cheat, for the purpose of either causing some financial loss to another, or bringing
about some financial gain to one’s self.” United States v. Klopf, 423 F.3d 1228,
1240 (11th Cir. 2005) (quotation omitted). Further, a defendant may be convicted
for conspiring to violate § 1029(a)(1) if the government shows: (1) an agreement
existed between at least two people to commit a crime; (2) the defendant
knowingly and voluntarily joined or participated in the conspiracy; and (3) a
conspirator performed an overt act in furtherance of the agreement. United States
v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006).
Additionally, 18 U.S.C. § 1028A(a)(1) states that “[w]hoever, during and in
relation to any felony violation enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another
person shall, in addition to the punishment provided for such felony, be sentenced
to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1). Among the
felonies enumerated in subsection (c) is “any provision contained in this chapter
3
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(relating to fraud and false statements), other than this section or section
1028(a)(7).” 18 U.S.C. § 1028A(c)(4).
At the time he was committing these offenses, Garcia was a detective with
the Sweetwater Police Department. The Government’s case against him was based
on his accomplices, including Assay Fernandez and Richard Munoz, formerly a
detective with the City of South Miami Police Department, law enforcement
officers, his victims, and audio and video recordings of his calls and meetings with
his accomplices. A reasonable jury could have found him guilty of credit card
fraud, conspiracy to commit credit card fraud, and aggravated identity theft.
Although he contests the credibility of prosecution witnesses, their credibility was
a matter for the jury to decide.
II.
Garcia claims that his sentences are procedurally unreasonable because the
District Court, in determining the appropriate sentence range under the Sentencing
Guidelines, erred in (1) determining the loss amount under U.S.S.G.
§ 2B1.1(b)(1)(B); (2) applying a two-level enhancement under U.S.S.G.
§ 2B1.1(b)(11)(B) for producing or trafficking counterfeit access devices; (3)
double counting Guidelines provisions; and (4) imposing consecutive sentences.
Garcia claims that his sentences are substantively unreasonable because they
4
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cannot be squared with the sentencing purposes, or factors, set out in 18 U.S.C. §
3553(a). We begin with the procedural issues.
A.
U.S.S.G. § 2B1.1(b)(1)(B) provides that if the loss attributable to the
defendant exceeds $5,000, but is less than $10,000, the defendant is subject to a 2-
level increase in his offense level. U.S.S.G. § 2B1.1(b)(1)(B). The Guidelines
state that, in the case of counterfeit access devices, loss includes any unauthorized
charges and “shall be not less than $500 per access device.” Id. § 2B1.1, comment.
(n.3(F)(i)). The Guidelines further define “loss” as “the greater of actual loss or
intended loss.” Id. § 2B1.1, comment. (n.3(A)). Actual loss is the “reasonably
foreseeable pecuniary harm that resulted from the offense,” while intended loss is
the “pecuniary harm that was intended to result from the offense,” even if the harm
was “impossible or unlikely to occur.” Id. § 2B1.1, comment. (n.3(A)(i)-(ii)).
“Reasonably foreseeable pecuniary harm” means pecuniary harm that the
defendant knew or, under the circumstances, reasonably should have known, was a
potential result of the offense. Id. § 2B1.1, comment. (n.3(A)(iv)).
While “estimates are permissible, courts must not speculate concerning the
existence of a fact which would permit a more severe sentence under the
guidelines.” United States v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011)
(quotation omitted). When the loss amount is at issue, the Government must
5
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support its loss calculation with “reliable and specific evidence.” Id. (quotation
omitted). In addition, the district court must make specific factual findings
sufficient to support the Government’s claimed loss amount attributable to a
defendant. United States v. Gupta, 463 F.3d 1182, 1200 (11th Cir. 2006). Where
the defendant “submit[s] no proof that the Government’s averages, estimates, or
results are so wildly inaccurate as to be unreasonable,” the district court “d[oes]
not engage in the kind of speculation forbidden by the Sentencing Guidelines.”
Bradley, 644 F.3d at 1292.
We review the court’s amount-of-loss determination for clear error. United
States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005). Garcia has not shown that a
loss amount based on the 14 counterfeit credit cards attributed to him was “so
wildly inaccurate as to be unreasonable” and thus erroneous. See Bradley, 644
F.3d at 1292. The 14-card number was determined based on testimony that Garcia
possessed 8 cards from Officer Ricardo De Armas, received multiple cards from
Luis Camacho, and provided his own credit card to produce more counterfeit
cards. Such evidence led to a permissible estimate of 14 cards that Garcia was
directly involved with in the course of his criminal activity. In short, the court did
not clearly err in attributing 14 cards to Garcia in calculating the loss amount.
6
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U.S.S.G. § 2B1.1(b)(11)(B) provides a two-level enhancement of the offense
level if the offense involved the “production or trafficking” of any “unauthorized
access device or counterfeit access device.” U.S.S.G. § 2B1.1(b)(11)(B)(i).
“Production” includes manufacture, design, alteration, authentication, duplication,
or assembly. Id. § 2B1.1, comment. (n.10(A)). “Unauthorized access device,” as
defined in § 1029(e)(3), includes any access device that is lost, stolen, expired,
revoked, canceled, or obtained with intent to defraud. 18 U.S.C. § 1029(e)(3).
Unauthorized credit cards are unauthorized access devices. United States v.
Morris, 81 F.3d 131, 134 (11th Cir. 1996). Specific offense enhancements are
determined by “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A). Since the two-level increase only affects the Guidelines
calculation, and not the statutory minimum or maximum, the fact of “production or
trafficking” need not be submitted to a jury under Alleyne.1 United States v.
Charles, 757 F.3d 1222, 1225-26 (11th Cir. 2014).
Several witnesses testified that Garcia had used the embossing machine and
called the merchant number to confirm valid card numbers. Witnesses also
testified that Garcia was present in Camacho’s home while counterfeit cards were
being produced. Thus, there was sufficient evidence for the court to enhance
1
Alleyne v. United States, 570 U.S. ___, ___, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314 (2013).
7
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Garcia’s sentence for “production or trafficking” of “counterfeit access devices”
under U.S.S.G. § 2B1.1(b)(11)(B).
Generally, an issue of “double counting” is a question of law that we review
de novo. United States v. Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). However,
when the objection to “double counting” is raised for the first time on appeal, the
objection we review only for plain error. Id. Under plain error review, the
defendant must show (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If these
elements are met, we may recognize the error, in our discretion, if the error
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. Plain error cannot be established where the explicit language of
a statute or rule does not resolve an issue and there is no precedent from the
Supreme Court or this Court directly resolving it. United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003).
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” Naves, 252 F.3d at 1168. Double counting is permissible when “the
Sentencing Commission intended the result” and “each section concerns
conceptually separate notions related to sentencing.” Id. (quotation omitted).
8
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The District Court clearly found the enhancement for abuse of a position of
trust to be insufficient to account for Garcia’s conduct in committing this criminal
activity while working as a detective for the Sweetwater Police Department. As a
result, the harm was not fully accounted for in the enhancement alone, and the
court acted within its discretion in considering this factor under § 3553(a) when
crafting a fair sentence. There is no error here, much less plain error.
We review the District Court’s imposition of a consecutive sentence for
abuse of discretion. United States v. Covington, 565 F.3d 1336, 1346 (11th Cir.
2009). With regard to sentences for violations of 18 U.S.C. § 1028A(a)(1), a
defendant must serve a term of two years’ imprisonment, which shall run
consecutively to any term of imprisonment imposed for any other offense.
18 U.S.C. §§ 1028A(a)(1), (b)(2). Where a defendant has multiple convictions
under § 1028A, the court has discretion to determine whether these sentences
should run concurrently with each other. 18 U.S.C. § 1028A(b)(4). The
commentary for § 5G1.2 of the Guidelines indicates that, in making this
determination, the court should consider the nature and seriousness of the offenses,
whether the offenses may be grouped under U.S.S.G. § 3D1.2, and whether the §
3553(a)(2) purposes are better served by imposing a concurrent or a consecutive
sentence. U.S.S.G. § 5G1.2, comment. (n.2(B)). We have held that a court may,
based on the seriousness of the defendant’s offenses, order that a defendant’s
9
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sentences for multiple convictions under § 1028A run consecutively to each other,
even though generally concurrent sentences would be imposed for offenses
groupable under § 3D1.2. United States v. Bonilla, 579 F.3d 1233, 1244-45 (11th
Cir. 2009).
We find no abuse of discretion in the court’s running some of the aggravated
identity theft convictions concurrently and others consecutively based on the date
of the offense. The court correctly found that these sentences were required to run
consecutive to sentences for any other offense. The court made clear that, absent
the discretion to run the aggravated identity theft convictions consecutively,
resulting in a higher total sentence, it would have varied the sentences upward.
The court, therefore, did not abuse its discretion in determining that running some
of the sentences consecutively was proper to provide adequate punishment.
B.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,
169 L. Ed. 2d 445 (2007). The substantive reasonableness of a sentence is
determined in light of the totality of the circumstances. Id. at 51, 128 S. Ct. at 597.
The party challenging the sentence bears the burden of showing it is unreasonable
in light of the record and the 18 U.S.C. § 3553(a) sentencing factors. United States
v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006). We will not vacate a sentence as
10
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substantively unreasonable unless left with the definite and firm conviction that the
district court clearly erred in weighing the 18 U.S.C. § 3553(a) factors and issued a
sentence outside the range of reasonable sentences. Rodriguez, 628 F.3d at 1264-
65.
A district court is required to impose a sentence “sufficient, but not greater
than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),
including the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2).
In imposing a particular sentence, the district court must also consider the nature
and circumstances of the offense, the history and characteristics of the defendant,
the kinds of sentences available, the applicable guideline range, the pertinent
policy statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18
U.S.C. § 3553(a)(1),(3)-(7).
Garcia has not shown that his total 112-month sentence is substantively
unreasonable. Despite his contentions, the District Court clearly considered the
§ 3553(a) factors in crafting the term of incarceration. Although the court could
have imposed a lower term, after consideration of all the factors it crafted a term
11
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would serve the goals of § 3553(a). Thus, the court did not abuse its discretion in
sentencing Garcia to a total 112-month sentence.
For the foregoing reasons, Garcia’s convictions and sentences are
AFFIRMED.
12
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Marquez-M v. State
IN THE
TENTH COURT OF APPEALS
No. 10-93-101-CR
GERARDO MARQUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 339th District Court
Harris County, Texas
Trial Court # 629,032
O P I N I O N
Appellant Marquez appeals his conviction for murder for which he was sentenced to "life"
in the Texas Department of Criminal Justice and assessed a of $10,000 fine.
On March 26, 1992, Cecilia Reyes was employed at the Fiesta food mart in southwest
Houston. She had been married four years, was pregnant, and was deeply in love with her
husband. She got off work at 9:30 p.m. and was seen walking toward her van in the parking lot.
This was the last time she was seen alive. When she did not come home her husband made calls
trying to find her and reported her missing to the police.
Appellant Marquez was a regular customer at Fiesta. He had been infatuated with Cecilia
and two other female clerks.
On March 27, 1992, a person working on the side of Road 290 found a box containing the
torso of Cecilia, minus her head, legs, and arms. Appellant became a suspect; blood of Cecilia's
type was found in Appellant's apartment and a blanket, identified as belonging to Appellant, was
wrapped around her torso when it was found. Thereafter Appellant admitted that he killed Cecilia
and led police to two other boxes containing her head, arms, and legs. An autopsy showed that
she was killed by being stabbed in the neck.
Appellant was indicted for the death by stabbing her with a deadly weapon. He was convicted
of her murder and sentenced to life in prison plus a fine. He appeals on twelve points of error.
Points one, two, and three assert that the trial court denied Appellant's Batson motion without
requiring the prosecutor to articulate race-neutral reasons for its peremptory strikes. Batson v.
Kentucky, 476 U.S. 79 (1986). This court found merit to this, abated the appeal, and remanded
the cause to the trial court to conduct a full retrospective Batson hearing. Emerson v. State, 820
S.W.2d 802, 805 (Tex. Crim. App. 1991); Marquez v. State, No. 10-93-101-CR (Tex.
App.—Waco, May 18, 1994) (abatement order, not designated for publication). The trial court
conducted such hearing and found that the reasons proffered by the State for excluding, by
peremptory challenges, jurors 6, 16, and 33 were race-neutral reasons and denied Appellant's
Batson challenge. A supplemental statement of facts of this hearing is before us. Points one, two,
and three are moot and are overruled.
Point four contends the trial court committed reversible error by failing to instruct the jury
on the lesser-included offense of involuntary manslaughter; and point five contends the trial court
committed reversible error by partially instructing the jury on involuntary manslaughter and then
instructing the jury to disregard the previous charge inasmuch as this about face constituted an
impermissible comment on the evidence.
In Appellant's statement received in evidence, he contended that: (1) he had an affair with
Cecilia; (2) she was in his apartment on the night of March 26, 1992; (3) they argued; (4) he
pushed her; and (5) she hit her head on the edge of a table and was killed. Appellant then stated
that he was afraid of being arrested, so he chopped up her body with a machete and disposed of
it.
The medical examiner testified at trial that Cecilia's death was caused by a stab wound
through her neck made with a sharp instrument. He further testified that he observed a bruise on
her head but that the head injury was not the cause of death.
The trial court initially agreed that an involuntary manslaughter instruction should be given
but, after the jury had been partially charged on the elements of involuntary manslaughter, decided
to remove it from the charge.
Article 37.09, Texas Code Criminal Procedure, provides in pertinent part: "An offense is a
lesser included offense if (1) it is established by proof of the same or less than all facts required
to establish the commission of the offense charged." The indictment here charged that Appellant
intentionally and knowingly caused the death of Cecilia Reyes by stabbing her with a deadly
weapon.
Thus under Article 37.09(1), the offense of involuntary manslaughter is a lesser-included
offense of murder as charged in the indictment, i.e., stabbing Cecilia with a deadly weapon, only
if it can be established by proof of the same or less than all the facts required to establish
commission of the offense charged. Walker v. State, 761 S.W.2d 572, 575 (Tex. App.—San
Antonio 1988).
An allegation that an offense has been committed in one way may include a lesser offense,
while an allegation that the offense was committed in another way, would not include the lesser
offense. Martinez v. State, 599 S.W.2d 622, 624 (Tex. Crim. App. 1980); Bell v. State, 693
S.W.2d 434, 436 (Tex. Crim. App. 1985); Walker v. State, supra.
The indictment here alleged Appellant caused the death of Cecilia by stabbing her with a sharp
instrument, a deadly weapon. Involuntary manslaughter by pushing Cecilia is not a lesser-included offense of murder by stabbing Cecilia with a deadly weapon. The trial court did not err
in failing to instruct the jury on involuntary manslaughter.
Appellant asserts in point five that the trial court erred in partially charging the jury on
involuntary manslaughter, and then removing the issue from the charge.
A trial court may, at any time before the verdict, withdraw and correct its charge if convinced
that an erroneous charge has been given; and a trial court may at any time amend its charge in
order to correctly state the law. Smith v. State, 898 S.W.2d 838 (Tex. Crim. App. 1995).
Appellant's points four and five are overruled.
In points six and seven Appellant contends the trial court committed reversible error by
admitting into evidence numerous gruesome and duplicative photographs of the crime scene and
the autopsy. Appellant claims the photographs were cumulative of other photographs which had
been admitted and could only serve to inflame the jurors against Appellant without assisting in any
resolution of the contested issues in the case.
Rule 403 of the Texas Rules of Criminal Evidence provides:
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 or needless presentation of cumulative
evidence.
The approach under Rule 403 is to admit relevant evidence unless its probative value is
substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading
the jury, causing undue delay or needless presentation of cumulative evidence. The rule favors
admissibility of the relevant evidence, and the presumption is that relevant evidence will be more
probative than prejudicial. When admitting evidence, the trial judge does not sua sponte engage
in balancing the probative value against the prejudice, but only does so upon sufficient objection
invoking Rule 403 by the party opposing admission of the evidence. Long v. State, 823 S.W.2d
259, 271 (Tex. Crim. App. 1991).
Exhibits 14 and 16 are photographs of the torso and head of the deceased which had probative
value as being photographs by which her husband made his identification of the recovered body
parts as belonging to his deceased wife.
Exhibits 22, 24 and 25 depict the right arm and two views of the torso which were the first
body parts recovered the day after the murder.
Exhibits 85 and 86 depict the body parts in the two packages as they appeared when recovered
after Appellant lead the police to them.
Exhibits 93, 101, 102 and 104-108 are autopsy photographs the medical examiners used to
explain the injuries suffered by the deceased as well as the cause of death.
The cause of death was a contested issue which required the State to prove the stab wound to
the neck as the cause of death. The trial court did conduct a weighing analysis in regard to the
autopsy photographs and stated that the gruesomeness of the photographs was due to the fact that
Appellant cut the body of the deceased into five parts, and the trial court specifically found that
the probative value outweighed this prejudicial effect. The photographs admitted are analogous
to the photographs found to be properly admitted in Long v. State, supra, at page 273.
The most grievous aspect of this case, as depicted in the photographs, was the mutilation
which Appellant admitted he had done. Points six and seven are overruled.
Points eight and nine complain of the prosecutor's jury argument which Appellant asserts
deprived him of a fair trial as guaranteed by the Federal and State constitutions. Specifically,
Appellant asserts the prosecutor's argument that Appellant "kidnapped the deceased at gunpoint
at her van and forced her to go to his apartment," and later, "that the deceased was forced, that
she went to his place at gunpoint, probably; we know he had a gun," and in the punishment phase,
"we know the deceased did not go there [to his apartment] voluntarily."
The first complained of argument was invited. Counsel for Appellant first brought up the
subject of the possibility of Appellant having abducted the deceased at gunpoint when he
previously argued, "I know he's going to argue this, there were pistols found in his bedroom. He
can argue that you could consider; that he came over there and put a gun on her and made her
drive him over to his apartment." Invited argument is permissible. Pemberton v. State, 601
S.W.2d 333, 338 (Tex. Crim. App. 1980). Moreover the argument was a reasonable deduction
from the evidence.
As to the second and third instances of complained-of argument, the trial court sustained
Appellant's objections to same and instructed the jury to disregard. Also, the arguments were both
permissible as being reasonable deductions from the evidence, and responses to prior arguments
of Appellant's counsel. Points eight and nine are overruled.
Point eleven
asserts the trial court committed reversible error in instructing the jury that the
defendant could be convicted of murder if he intended to engage in clearly dangerous conduct that
resulted in the victim's death.
At the guilt-innocence stage the trial court instructed the jury in pertinent part:
A person intentionally, or with intent, with respect to the nature of his conduct or
to a result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his
conduct or to circumstances surrounding his conduct when he is aware of the nature of
his conduct or that the circumstances exist. A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.
. . . .
Now, if you find from the evidence beyond a reasonable doubt that on or about the
26th day of March 1991, in Harris County, Texas, the defendant Gerardo Marquez, did
then and there unlawfully, intentionally or knowingly cause the death of Cecilia Reyes,
by stabbing Cecelia Reyes with a deadly weapon, namely, a sharp object which is
unknown to the Grand Jury, and that the defendant in so acting, was not acting under the
immediate influence of sudden passion arising from an adequate cause, or if you find
from the evidence beyond a reasonable doubt that on or about the 26th day of March
1991, in Harris County, Texas, the defendant Gerardo Marquez, did then and there
unlawfully intend to cause serious bodily injury to Cecilia Reyes, and did cause the death
of Cecilia Reyes by intentionally or knowingly committing an act clearly dangerous to
human life, namely, by stabbing Cecilia Reyes with a sharp object which is unknown to
the Grand Jury, and that the defendant in so acting, was not acting under the immediate
influence of sudden passion arising from an adequate cause, then you will find the
defendant guilty of murder as charged in the indictment.
The application paragraph of the charge clearly required the jury to find Appellant
intentionally or knowingly caused the death of the complainant by stabbing her, or that Appellant
intended to cause serious bodily injury to the complainant and that Appellant intentionally or
knowingly committed an act clearly dangerous to human life by stabbing the complainant. The
application paragraph of the charge clearly required the jury to find that Appellant acted
intentionally or knowingly with respect to the result of his actions.
It was the State's theory that Appellant committed murder with the intent to cause the
complainant's death; and that Appellant killed the complainant by stabbing her in the neck with
a knife. The autopsy revealed that she was killed by being stabbed with a very large knife that
went all the way through her neck. The trial court did not reversibly err in the charge to the jury.
Point eleven is overruled.
Point twelve asserts the trial court committed reversible error by denying Appellant's Batson
objections to the prosecutor's discriminatory use of peremptory challenges to exclude minority
jurors. As noted, the trial court refused to hear reasons why the prosecutor struck black members
of the panel. This court abated the appeal and remanded the cause for a full Batson hearing. On
remand the trial court conducted a Batson hearing and the record here has been supplemented.
Appellant objected to the exercise of peremptory challenges to jurors #6, #16, and #33, all black
members of the panel.
When this occurs the State must articulate race-neutral reasons for striking the jurors. The
State offered the following race-neutral reasons for striking the jurors:
Juror #6 had a close fiend who was murdered a year ago and was too quick in
answering the questions concerning bias and prejudice.
Juror #16 appeared to be asleep during voir dire; her pastor's son had been in trouble
with the law; also she had worked for CPS and jurors who have been social workers tend
to be rehabilitatively oriented.
Juror #33 was closing her eyes during voir dire, was fighting falling asleep and did
fall asleep.
The trial court held that the reasons offered by the State were race-neutral and that no Batson
error had occurred.
When a prosecutor presents a racially neutral explanation for exercising a peremptory
challenge against a minority veniremember, the defendant is required to rebut that racially-neutral
explanation which the Appellant did not do here. Williams v. State, 804 S.W.2d 95, 97 (Tex.
Crim. App. 1991).
If, after viewing the evidence in the light most favorable to the trial court's ruling, it is
determined that the explanations provided by the prosecutor have not been rebutted by the
defendant, an appellate court should uphold the trial court's finding that the prosecutor did not
engage in purposeful racial discrimination in the exercise of his peremptory challenges. Williams
v. State, supra, at 101.
The State offered racially-neutral reasons for striking the minority jurors, and Appellant did
not rebut same. The trial court did not err in holding that no Batson violations occurred. Point
twelve is overruled.
The judgment is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Justice Cummings,
Justice Vance, and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed September 13, 1995
Do not publish
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140 F.Supp.2d 319 (2001)
Patrick NELSON, Plaintiff,
v.
C.O. F. EAVES; Lt. Wilk; C.O. Smith of S. and X Gallery, Defendant.
No. 99 CIV. 9553 (DC).
United States District Court, S.D. New York.
May 3, 2001.
Patrick Nelson, Southport Correctional Facility, Pine City, NY, for Plaintiff Pro Se.
Eliot Spitzer, Attorney General of the State of New York, By Bruno V. Gioffre, Jr., Assistant Attorney General, New York City, for Defendants.
MEMORANDUM DECISION
CHIN, District Judge.
In this prisoner's civil rights case, plaintiff pro se Patrick Nelson wrote a series of letters to the Assistant Attorney General previously assigned to this case. The letters *320 were sexually graphic, threatening in tone, and completely inappropriate. In view of these letters, I issued an order on April 5, 2001, directing Nelson to show cause why this case should not be dismissed, with prejudice, and other sanctions imposed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and this Court's inherent power. Nelson responded, but his response is unsatisfactory. Accordingly, the complaint is dismissed, with prejudice.
FACTS
This prisoner civil rights case was filed, pursuant to 42 U.S.C. § 1983, on September 8, 1999. Nelson's request to proceed in forma pauperis was granted and the filing fee was waived. The complaint seeks damages based on three alleged incidents that occurred when Nelson was incarcerated at Sing Sing Correctional Facility: (1) on March 30, 1999, two corrections officer purportedly subjected Nelson to an unprovoked beating outside his cell; (2) on April 27, 1999, an officer allegedly assaulted Nelson in his cell and confiscated his radio; and (3) on May 3, 1999, an unidentified person purportedly put drugs (PCP) into Nelson's food, as the result of which he apparently spent two weeks in a "Mental Hospital."
Defendants moved to dismiss on the grounds Nelson had failed to exhaust his administrative remedies. They later withdrew the motion and filed an answer to the complaint. The parties thereafter engaged in discovery. Nelson was deposed on December 7, 2000, by the Assistant Attorney General previously assigned to this case (the "prior AAG"). A copy of the 162-page transcript of the deposition has been provided to and reviewed by the Court.
By letter dated April 4, 2001, the prior AAG advised the Court that Nelson had been sending her "inappropriate correspondence." (4/4/01 Letter, p. 1). She reported that she had been reluctant to "burden the Court with this matter," but eventually decided to write because Nelson's letters had become "increasingly sexually graphic." (Id.). She submitted one of Nelson's letters, dated March 25, 2001, for the Court's review. She also advised that the case had been reassigned to a different Assistant Attorney General. (Id.).
Nelson's March 25, 2001, letter was indeed inappropriate and sexually graphic. For example, the letter, which is addressed to the prior AAG by her first name, states:
Do you really want to be with me. I mean that's what I want to know. I'm saying, your 26 years old. I don't know if you're a virgin. But your a freak. You got a naughty mind, and so do I. I day dream about you all the time, going places and doing things, especially doing things.....
(3/25/01 Letter, p. 1). The letter continues and becomes even more sexually graphic and crude. At one point, the letter takes on a threatening tone, as Nelson writes: "I should kill you, but I won't. I'm a let you go." (Id., p. 5). At another point in the letter, referring to the prior AAG by name, Nelson writes: "Your too bold ... the brave always dies first." (Id., p. 6).
The Court immediately issued an order to show cause, directing Nelson to show cause why his complaint should not be dismissed, with prejudice, and other sanctions imposed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and this Court's inherent power.
At the same time, the Court asked the Attorney General's Office to submit the additional letters that Nelson had sent to the prior AAG. In response, on April 6, 2001, the Attorney General's Office submitted eight additional letters that Nelson had sent to the prior AAG in February *321 and March of 2001. These letters also contain inappropriate language, including profanity and a reference to the Court as a "Ching Fu Young Judge." (3/21/01 Letter, p. 1).[1]
Nelson responded to the order to show cause by submitting a letter dated April 20, 2001. He makes no effort to explain his letters to the prior AAG; instead, he responds simply as follows:
Me and [the prior AAG] has been secretly communicating through our letters about this case or should I say through this case. I met her and somehow we started likeing each other. But in all actuality, she was playing with my mind and when I got serious she gave me up. So I'm a leave that alone ....
(4/20/01 Letter, p. 1). Nelson also advises in the letter that "right now I'm at Marcy Mental Hospital." (Id.).
By letter dated May 1, 2001, the Attorney General's Office advised the Court that Nelson had left two telephone voice mails for the prior AAG on May 1, 2001. In the first message, Nelson asked that the prior AAG provide him with information concerning the summary judgment motion that defendants were scheduled to file. In the second message, Nelson asked the prior AAG to comment on the Court's order to show cause. Nelson left these messages for the prior AAG even though the prior correspondence and this Court's order to show cause made it clear that the case had been reassigned to a different Assistant Attorney General.
The Attorney General's May 1st letter also advised that Nelson has been hospitalized at the Central New York Psychiatric Center in Marcy, New York, since April 11, 2001. At the time of his deposition on December 7, 2000, he was not having any medical problems nor was he taking any medication, although he also testified that he was suffering from some stress. (Dep. at 4-5, 47, 155). He testified that he did not have a history of psychiatric illness. (Id. at 31). He also testified, however, that at some point he was taking a medication for depression, and that at another point he was seeing a mental health counselor. (Id. at 40, 43-44). In general, Nelson's deposition testimony was intelligent, responsive, and perfectly coherent; there was nothing remarkable or unusual about it, except perhaps for his assertion that on one occasion someone put PCP into his food, causing him to suffer from "flashes" that put him in Marcy Hospital. (Id. at 153).
When he was deposed on December 7, 2000, Nelson was housed at Southport Correctional Facility, although he had been moved temporarily to Downstate Correctional Facility for the deposition. (Id. at 14-15). He has also been housed at Clinton, Upstate, and Sing Sing Correctional Facilities, and had also previously *322 spent two months at the Marcy facility. (Id. at 15-16).
Nelson testified that he is serving a seven-year prison term for assault in the first degree, and will be released as early as April 26, 2004. (Id. at 11). He was previously convicted of criminal possession of a weapon in the third degree, for which he was sentenced to a term of imprisonment of one to three years. (Id. at 12). He apparently also was convicted for yet another weapons violation, for which his sentence is running concurrently with his sentence for the assault conviction. (Id. at 14).
DISCUSSION
The in forma pauperis statute, 28 U.S.C. § 1915, is intended "to ensure that indigent litigants have meaningful access to the federal courts." Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Hence, the statute permits a litigant to commence a lawsuit without paying a filing fee by filing an affidavit stating that he or she is unable to pay the costs of the suit. 28 U.S.C. § 1915(a). Because such a litigant, "whose filing fees and court costs are assumed by the public, ... lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits," Neitzke, 490 U.S. at 324, 109 S.Ct. 1827, the federal courts are authorized to dismiss a suit filed in forma pauperis "at any time" if the Court determines that the action is "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i). See Crawford-El v. Britton, 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (§ 1915(e)(2) is a "tool[] ... available in extreme cases to protect public officials from undue harassment").
On the record before me, even assuming Nelson has one or more meritorious claims, I conclude that he is prosecuting this case maliciously. I reach this conclusion for the following reasons.
First, Nelson has written abusive, demeaning, and threatening letters to the prior AAG. The language of the letters reveals malice and an intent to harass. It is apparent that Nelson is simply entertaining himself and abusing the judicial system in the process. See Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (quoting Senators Dole and Kyl that filing lawsuits "has become a recreational activity for long-term residents of our prisons" to gain "a short sabbatical in the nearest Federal courthouse") (internal quotation marks omitted).
Second, Nelson's inappropriate and crude comments were not isolated. Indeed, they were repeated throughout ten letters written to the prior AAG over a period of more than two months. They escalated in tone, becoming more sexually graphic and threatening.
Third, Nelson continued to try to contact the prior AAG even after I issued the order to show cause. Even after it had become clear that the case had been reassigned to another Assistant Attorney General and that the prior AAG was no longer responsible for the matter, Nelson telephoned her. He even left a message asking her to comment on the order to show cause.
These circumstances demonstrate clearly that Nelson is acting maliciously.
I pause only to consider whether Nelson's actions are the result not of malice but of mental illness. The issue arises because he is now housed in Marcy Hospital and there is some evidence to suggest the possibility of psychiatric illness. I am convinced, however, from Nelson's letters, his deposition testimony, and all the circumstances before me that he is mentally competent and that he knew precisely what he was doing when he wrote the letters to the prior AAG. Although he apparently has suffered from stress and depression *323 and was taking medication at some point in the past, he denies a history of mental illness. Although he has had two stays at Marcy Hospital, for the majority of his incarceration he has been housed in nonmedical facilities. Most importantly, his deposition testimony was intelligent, responsive, and completely cogent.
In Crawford-El, Justice Kennedy made the following observation about the difficulties presented by prisoner civil rights litigation:
Prisoner suits under 42 U.S.C. § 1983 can illustrate our legal order at its best and its worst. The best is that even as to prisoners the government must obey always the Constitution. The worst is that many of these suits invoke our basic charter in support of claims which fall somewhere between the frivolous and the farcical and so foster disrespect for the laws.
We must guard against disdain for the judicial system.
523 U.S. at 601, 118 S.Ct. 1584 (Kennedy, J., concurring).
Here, through his repeated inappropriate actions, Nelson has shown his disdain for the judicial system. Accordingly, his complaint will be dismissed, with prejudice.
CONCLUSION
For the foregoing reasons, the Clerk of the Court shall enter judgment:
1. dismissing the complaint, with prejudice;
2. awarding costs, including expenses related to the taking of Nelson's deposition, to defendants, pursuant to 28 U.S.C. § 1915(f);[2] and
3. forever enjoining Nelson from contacting or attempting to contact the prior AAG, directly or indirectly, orally, in writing, electronically, or otherwise.
SO ORDERED.
NOTES
[1] See, e.g., 3/20/01 Letter, p. 1 ("How are you doing sweetheart? ... Love you."); 3/17/01 Letter, p. 1 ("Why didn't you respond to me about that. Now fuck that.... I don't want to get on some real personal shit and start really dislikeing you like we got a problem like I hate you or something."); 3/15/01 Letter, p. 1 ("Send me a copy of the HIV results. I know it's negative. I just want it on paper. I wanted to use it as evidence to show a young lady. So when it's time to get my love on I know I'm safe if I decide to go raw."); 3/2/01 Letter, p. 1 ("Listen, you is a bad motherfucker. It took me a minute to figure it out. But I peeped the scene. Yo, you is a real sweetheart."); 2/25/01 Letter, p. 1 ("Yo, did you see the movie Hannibal. You got to see that movie .... Then again I don't know if you'll like it. Yeah, you'll like it. F.B.I. agents. Serial killer, blood, and cannibalism. Yeah, that's right up your alley. Smile. Just kidding.").
By letter dated April 26, 2001, the Attorney General's Office submitted yet another letter sent by Nelson, dated April 15, 2001, to the prior AAG. The April 15th letter also contains inappropriate language.
[2] The New York State Department of Corrections may collect the costs in accordance with § 1915(b). See generally Whitfield v. Scully, 241 F.3d 264, 275-78 (2d Cir.2001).
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300 Multiple Choices
Multiple Choices
The document name you requested (/attorneys/assets/opinions/appellate/unpublished/a1414-15.pdf) could not be found on this server.
However, we found documents with names similar to the one you requested.Available documents:
/attorneys/assets/opinions/appellate/unpublished/a1464-15.pdf (mistyped character)
/attorneys/assets/opinions/appellate/unpublished/a1484-15.pdf (mistyped character)
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IBM_HTTP_Server at www.judiciary.state.nj.us Port 443
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137 Ga. App. 760 (1976)
224 S.E.2d 866
FIRST NATIONAL BANK & TRUST COMPANY IN MACON et al.
v.
THE STATE; and vice versa.
51157, 51158.
Court of Appeals of Georgia.
Argued September 10, 1975.
Decided February 4, 1976.
Rehearing Denied February 23, 1976.
Jones, Cork, Miller & Benton, Frank C. Jones, Timothy K. Adams, H. Jerome Strickland, Knight, Perry & Franklin, W. D. Knight, J. Reese Franklin, for appellants.
Vickers Neugent, District Attorney, for appellee.
Carter Goode, Assistant District Attorney, amicus curiae.
DEEN, Presiding Judge.
After the bank repossessed his automobile for various defaults, Taylor's grand jury testimony resulted in indictments against it and two of its employees on February 18, 1975, for the offenses of theft of a motor vehicle, theft of contents, and criminal trespass. No arrests were made prior to indictment, nor was any defendant imprisoned.
Thereafter the defendants moved for a commitment hearing, and the judge of the Superior Court of Berrien County, Alapaha Judicial Circuit, entered an order on April 2 which was filed in the case disqualifying himself and ordering a judge of the Southern Judicial Circuit to hold a commitment hearing and arraignment. The hearing was held, and two of the three indictments were quashed, which judgments are enumerated as error in the cross appeal. The main appeal contends that judgment "committing the defendants to trial" on the remaining indictment was improper.
In Thrash v. Caldwell, 229 Ga. 585 (1) (193 SE2d 605) it was held: "Furthermore, since the purpose of the commitment hearing is to determine whether there is probable cause to hold the accused for trial (Code § 27-407), the subsequent indictment, trial, and conviction of the accused render the omission harmless." "`The *761 defendant is not deprived of any constitutional right if the grand jury issues an indictment against him prior to the holding of a preliminary hearing. Johnson v. Plunkett, 215 Ga. 353 (3) (110 SE2d 745); Johnson v. State, 215 Ga. 839 (5) (114 SE2d 35); Cannon v. Grimes, 223 Ga. 35 (2, 3) (153 SE2d 445); Henderson v. State, 225 Ga. App. 273 (2) (168 SE2d 160).' Shields v. State, 126 Ga. App. 544 (1) (191 SE2d 448)." Douglas v. State, 132 Ga. App. 694 (1) (209 SE2d 114). "A committal court would have no jurisdiction to determine whether or not there was probable cause for indictment after the indictment had already been returned." Johnson v. State, 215 Ga. 839 (5) (114 SE2d 35). "The appellant was not entitled to be informed of the charges against him prior to trial other than by indictment." Phillips v. Stynchcombe, 231 Ga. 430 (3) (202 SE2d 26). "`The holding of a commitment hearing is not a requisite to a trial for the commission of a felony.'" State v. Houston, 234 Ga. 721 (218 SE2d 13). This latter case reverses the Court of Appeals holding that denial of counsel at a pre-indictment commitment hearing authorizes quashing of the indictment, but it affirms that part of the Court of Appeals holding that the commitment hearing is a critical stage. It carefully points out that there was a pre-indictment commitment hearing, and it also reiterates the ruling in Phillips v. Stynchcombe, supra, that the holding of such a hearing is not a requisite to a trial for commission of a felony.
Again reversing the Court of Appeals, the Supreme Court held in State v. Middlebrooks, 236 Ga. 52, 55 that "... a preliminary hearing is not a required step in a felony prosecution and ... once an indictment is obtained there is no judicial oversight or review of the decision to prosecute because of any failure to hold a commitment hearing."
The opinion also cites Jackson v. State, 225 Ga. 39 (165 SE2d 711) to the effect that the purpose of a commitment hearing under Code § 27-407 is to determine whether probable cause exists to believe the accused guilty of the crime charged and, if so, to bind him over to the grand jury. Even the two dissenting justices "concede that under Georgia's procedure, a person not imprisoned until after indictment has no right to a preliminary hearing."
*762 The Supreme Court of the United States adopts the same reasoning. "It reasonably cannot be doubted that, in the court to which the indictment is returned, the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer." Ex Parte United States, 287 U. S. 241, 250.
The judge erred in ruling that a commitment hearing should be held after indictment, and all proceedings thereafter were nugatory.
Judgment reversed in both cases. Stolz and Webb, JJ., concur.
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878 N.E.2d 210 (2007)
HENARD
v.
STATE.
Supreme Court of Indiana.
September 6, 2007.
Transfer denied. All Justices concur.
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526 N.W.2d 124 (1995)
Steve ELLIS and Kaye Ellis, Husband and Wife, Plaintiffs and Appellees,
v.
The CITY OF YANKTON, South Dakota, a Municipal Corporation, Defendant and Appellant, and
Alfred T. Burbach, Yankton County, South Dakota, and All Persons Unknown Who Have Or Claim to Have Any Interest In Or Lien Or Encumbrances Upon the Premises Described in the Complaint, Defendants.
No. 18674.
Supreme Court of South Dakota.
Considered on Briefs November 29, 1994.
Decided January 4, 1995.
Rehearing Denied February 16, 1995.
C.E. Light, Yankton, for plaintiffs and appellees.
William J. Klimisch of Goetz, Hirsch and Klimisch, Yankton, for defendant and appellant.
WUEST, Justice.
City of Yankton (City) appeals the trial court's grant of Ellis' motion for summary judgment stemming from the sale of real property by Yankton County (County) for unpaid taxes. We affirm.
FACTS
Yankton County had acquired tax deeds for nonpayment of taxes on several lots located within the City of Yankton. City had, prior to County's acquisition of the tax deed, certified to the County for collection certain unpaid special assessments on the properties arising from improvements made. Thereafter, *125 County sold the lots at public auction at which time it was announced to the bidding public that the property was being sold subject to City's delinquent special assessments. Information regarding the amount and type of special assessments due on each parcel of property was distributed to auction participants prior to the start of the bidding. Steve and Kaye Ellis were successful bidders for the property at issue herein.
Thereafter, City commenced suit against Ellis for nonpayment of these unpaid delinquent special assessments. The City asked the court to determine it had liens on the six lots purchased at the sale by Ellis and to order the property sold to satisfy those liens. The trial court dismissed that case upon the grounds the City was not the real party in interest. The trial court held the action had to be brought by County because, pursuant to SDCL 9-43-50, the County Auditor is the party to collect such delinquent special assessments, the City having certified the same for collection. City did not appeal this ruling.
In January 1993, Ellis brought this quiet title action against the County, the City, and others to extinguish City's claim. City asserted its claim for payment of the delinquent special assessments. A default judgment was taken against all defendants except the City. Ellis moved for summary judgment against the City which the trial court granted. City appeals.
STANDARD OF REVIEW
We first note our standard of review on a motion for summary judgment. It is settled law in this state that, in reviewing a motion for summary judgment:
the evidence must be viewed most favorably to the nonmoving party; the movant has the burden of proof to clearly show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; summary judgment is not a substitute for trial; a belief that the nonmoving party will not prevail at trial is not an appropriate basis for granting the motion on issues not shown to be sham, frivolous, or unsubstantiated; summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching upon the existence of a genuine issue of material fact should be resolved against the movant.
Tibke v. McDougall, 479 N.W.2d 898, 904 (S.D.1992); Pickering v. Pickering, 434 N.W.2d 758, 760 (S.D.1989). In reviewing a grant of summary judgment, this court is not bound by the trial court's factual findings and must conduct an independent review of the record. Lamp v. First Nat'l Bank, 496 N.W.2d 581, 583 (S.D.1993); Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 499 (S.D.1990); Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988). "No one is entitled to summary judgment unless entitled thereto as a matter of law and there are no genuine issues of material fact. SDCL 15-6-56(c)." Lamp, 496 N.W.2d at 585.
ANALYSIS AND DECISION
City of Yankton, from time to time, levied special assessments against the property purchased by Ellis. City sought to collect these special assessments pursuant to Plan Two of SDCL Chapter 9-43. Specifically, SDCL 9-43-43 through 9-43-53 apply to collection procedures under Plan Two. Under this procedure, delinquent special assessments are certified to the county for collection. When the county acquires a tax deed for nonpayment of taxes and subsequently sells the property, SDCL 9-43-51 provides the terms of the sale:
If the combined taxes and delinquent special assessments or installments under Plan Two which have been certified to the county treasurer as provided by § 9-43-49 are not paid, the parcel shall be sold for all such taxes and assessments in accordance with chapter 10-23. There shall be no separate sale as provided in § 10-23-1; but each parcel shall be sold for both taxes and assessments at a single sale and redemption must be made by payment of all such special assessments and taxes. No tax sale shall relieve the land from liability for subsequent installments of special assessments. (Emphasis added).
Our determination of this matter requires statutory interpretation which is a question of law. State v. Harris, 494 N.W.2d *126 619, 622 (S.D.1993); Vellinga v. Vellinga, 442 N.W.2d 472, 473 (S.D.1989). We look to the rules of statutory construction for guidance as to a statute's interpretation. Harris, 494 N.W.2d at 622.
Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature's apparent intention justifies departure. Where conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. However, terms of a statute relating to a particular subject will prevail over general terms of another statute. Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statues [sic] relating to the same subject.
Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 183-84 (S.D.1986) (citations omitted); Harris, 494 N.W.2d at 622. Subsequent amendments to a law to clarify the existing law may offer guidance to the intent of the law as initially enacted, or to determine the rights intended to have been conferred under the law. In re Farmers State Bank, 466 N.W.2d 158, 160 (S.D.1991). However, "when the language of a statute is clear, certain and unambiguous there is no need of statutory construction and the only function of the court is to declare the meaning of the statute as expressed." Sioux Falls Sch. Dist. v. Subsequent Injury Fund, 504 N.W.2d 107, 110 (S.D.1993) (citing In re AT & T Info. Sys., 405 N.W.2d 24, 27 (S.D.1987); In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984)).
Here, the statutory language appears to be "clear, certain and unambiguous" when it states "each parcel shall be sold for both taxes and special assessments at a single sale." SDCL 9-43-51 provides the manner in which the sale is to be performed. The auctioneer's announcement that the properties were "subject to" the special unpaid assessments cannot change the statute requiring the properties be sold for both taxes and delinquent assessments at a single sale.
SDCL 9-43-53 governs distribution of the proceeds from such sale. It provides:
Whenever any parcel of land has been acquired by the county by tax deed and sold and conveyed at a price less than the total principal, interest, and costs of all general taxes and past-due installments of special assessments under plan two which are unpaid thereon, then the proceeds of such sale shall be applied first to the payment of expenses incurred by the county in the proceedings to take tax deed and in such sale proceedings; secondly, towards the payment of the total principal, interest and costs of all such general taxes, such distribution to be made pursuant to direction for disposition of proceeds as set forth in § 7-31-31; and thirdly, the balance shall be applied toward and considered as payment of the principal, interest and costs of all such past-due installments of special assessments. (Emphasis added).
The legislative history of this statute provides guidance to our determination of whether past-due installments of special assessments survive a tax sale of the property. Prior to 1973, the following language appeared at the end of this section: "if no balance remains for said third purpose, such past-due installments of special assessments shall nevertheless be canceled on the books of the county treasurer." In 1973, the legislature replaced that language with the following: "if no balance remains for said third purpose, such past-due installments of special assessments shall remain on the books of the county treasurer as a lien against each parcel of land purchased by tax deed." The 1973 legislature also promulgated SDCL 9-43-53.1, which provided in pertinent part:
The county treasurer shall notify the city auditor or finance officer of the fact of such tax sale, the name and address of purchaser, and shall collect all past-due installments of such special assessments including principal and interest together with current installments of special assessments and general taxes in the next tax year.
*127 The next year, the legislature repealed SDCL 9-43-53.1 and deleted the substituted language in SDCL 9-43-53 so the statute provided as it does today.
"The most important rule of statutory construction is to determine and give effect to the intention of the legislature." Rural Pennington County Tax Ass'n v. Dier, 515 N.W.2d 841, 843 (S.D.1994) (citing Nelson v. Sch. Bd. of Hill City S.D., 459 N.W.2d 451, 455 (S.D.1990)). "In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said." Kayser v. S.D. State Elec. Comm'n, 512 N.W.2d 746, 748 (S.D.1994) (quoting Famous Brands, 347 N.W.2d at 885)).
We note that the statute provides, by its plain language, for those circumstances in which the land is sold for less than the amount due for past-due taxes and delinquent special assessments. Based on the plain language of SDCL 9-43-53 and the legislative history of this statute, we conclude that past-due taxes and delinquent special assessments do not survive a tax sale of property and these items are considered paid in full, and thereby cancelled, when the monies obtained from the sale have been paid as provided by SDCL 9-43-53.
We have considered the other issues but this issue is dispositive of this case.
MILLER, C.J., and SABERS, AMUNDSON and KONENKAMP, JJ., concur.
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202 F.2d 625
DEERv.NEW YORK CENT. R. CO.
No. 10718.
United States Court of Appeals Seventh Circuit.
March 11, 1953.
Ted B. Lewis, French M. Elrod, Cecil A. Taylor, Indianapolis, Ind., for appellant.
Marvin A. Jersild, Chicago, Ill., Joseph J. Daniels, Karl J. Stipher, Indianapolis, Ind., for appellee.
Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.
FINNEGAN, Circuit Judge.
1
The appellant, Charles M. Deer, plaintiff below, seeks to reverse an order of the District Court which sustained the motion of the New York Central Railroad Company, defendant-appellee, for summary judgment, and directed that plaintiff take nothing by his suit and that costs be assessed against him.
2
It appears from the plaintiff's complaint, and from the affidavits filed in support of and in opposition to the motion for summary judgment, that plaintiff had been an employee of the appellee railroad since 1926. That on November 12, 1945, he was engaged in his employment at the Beech Grove Repair Shops, at Beech Grove, Indiana. On that date an accident, which appellant states was caused by the negligence of defendant-appellee, its servants and agents, occurred at the Beech Grove Shops. A 300-pound chain hoist fell some six or eight feet striking appellant on the head, knocking him to the floor and rendering him temporarily unconscious. He suffered a gash and a bump on his head. He was treated by the company nurse for about three or four days succeeding the accident. Prior to that time the appellant had a very heavy head of hair. On about January 12, 1946, two months after the accident, appellant's hair started to come out whenever he combed it or ran his hands through it. On January 16, 1946, he consulted his family physician. He told the doctor of the accident in November and he was informed that his hair nerves had been paralyzed. At that time his family doctor referred him to a specialist. By February 6, 1946, he had lost all of his hair on his head and body. During the Easter season of 1946, appellant suffered several seizures or convulsions. He went to a hospital for about one week and was out of work for about two months. However, he subsequently returned to his employment in June of 1946. It also appears that appellant after the accident suffered continuously from headaches. He continued to work regularly for the appellee railroad until June 24, 1950, on which date he fainted on the job. He has not worked since. It has developed that he has a brain tumor and is totally and permanently disabled and that his condition is the result of the accident on November 12, 1945. The action, under review, was instituted on August 13, 1951, more than five years after the accident. It was based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.
3
Section 6 of that Act, 36 Statutes 291, 45 U.S.C.A. § 56 et seq. provides:
4
"No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."
5
Since the action here in question was brought about five years and nine months after the accident which caused the injuries complained of, the decisive question in this case is: Did the District Court err in sustaining appellee railroad's motion for summary judgment because the action was not commenced within three years after the date upon which the injuries complained of occurred?
6
Appellant contends that his cause of action is not outlawed under the terms of the Federal Employers' Liability Act because it did not accrue until he learned on June 24, 1950 that he had a brain tumor and was totally and permanently disabled.
7
For many years the general rule applied in cases based on common law principles of liability has been that the statute of limitations begins to run when there is a breach of a contract, or when the negligence or other tort complained of, occurs.
8
Wilcox v. Plummer, 29 U.S. 172, 4 Pet. 172, 7 L.Ed. 821, was an action against an attorney at law to recover the amount of loss sustained by his client because of his negligence and unskilful conduct in attempting to realize on a note placed in his hands for collection. The case arose in the Circuit Court of the United States in and for the District of North Carolina, It sought to recover for a loss sustained by the negligent or unskilful conduct of the attorney. It appears that the plaintiffs on January 28, 1820, had placed with him for collection a promissory note. The attorney instituted a suit on the note in the State court against the maker thereof but neglected at that time to proceed against the endorser. The maker proved to be insolvent. Thereupon, about a year later, the attorney began suit against the endorser, but in doing so committed a fatal mistake by a misnomer of the plaintiffs. On this suit judgment of nonsuit was ultimately entered in June 1824 against plaintiffs. In the meantime, the claim against the endorser of the promissory note became barred by the statute of limitations applicable thereto.
9
Thereupon, on January 27, 1825, the plaintiffs sued the attorney, and on his death the suit was revived against his personal representative by scire facias.
10
The jury found a verdict for the plaintiffs, subject to the opinion of the court, on the plea of the statute of limitations which had been interposed as a defense. The time allowed by the limitation statute was three years after the cause of action accrued. The judges of the Circuit Court of the United States in and for the District of North Carolina divided in opinion and directed that the difference be certified to the Supreme Court.
That Court said, 29 U.S. on page 179:
11
"There were two counts in the declaration: the one laying the breach in not suing at all, until the note became barred, thus treating as a mere nullity the suit in which the blunder was committed; and the other, laying the breach in the commission of the blunder; but both placing the damages upon the barring of the note by the act of limitation. As this event happened on the 22d of November, 1822, this suit is in time, if the statute commenced running only from the happening of the damage. But if it commenced running, either when the suit was commenced against the maker, or a reasonable time after, or at the time of Banks's insolvency, or at the time when the blunder was committed; in any one of those events, the three years had run out. And thus, the only question in the case is, whether the statute runs from the time the action accrued, or from the time that the damage is developed or becomes definite? And this we hardly feel at liberty to treat as an open question.
12
"* * * The ground of action here, is a contract to act diligently and skilfully; and both the contract and the breach of it admit of a definite assignment of date. When might this action have been instituted is the question; for, from that time, the statute must run. * * *
13
"The opinion of this court will have to be certified in the language of the defendants' supposed bill of exceptions, to wit, `that on the first count in the declaration, the cause of action arose at the time when the attorney ought to have sued the indorser, which was within a reasonable time after the note was received for collection, or at all events, after the failure to collect the money from the maker. And that on the second count, his cause of action arose at the time of committing the blunder in issuing the writ in the names of wrong plaintiffs'."
14
Annotations on when the statute of limitations begins to run in actions for malpractice against physicians, surgeons and dentists will be found in 77 A.L.R. 1317 and 144 A.L.R. 209. The Annotator in 144 A. L.R. says on page 210: "For the most part the authorities are agreed that ordinarily a cause of action for malpractice accrues and the limitation period begins to run at the time of the doctor's wrongful act or omission."
15
The general principle announced in Wilcox v. Plummer, has been applied to actions under the Federal Employers' Liability Act, the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., and the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.
16
Reading Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835, was an action to recover damages for the death of an employee arising under the Federal Employers' Liability Act. In that case the Supreme Court held that the employee's right to recover under the Act accrued on the date the accident occurred, and that the right to recover for wrongful death under the Act accrued on the date when the death occurred.
17
In McMahon v. United States, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26, the Supreme Court applied the same general principle to cases arising under the Suits in Admiralty Act. In Kobilkin v. Pillsbury, 9 Cir., 103 F.2d 667, a claimant who was compensable under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. sec. 901, et seq., was actually disabled for work for three weeks, for the allowable portion of which compensation was paid him. He then returned to his employment and continued to work at his former wage for seventeen months when he learned that his injury was more extensive than had been orginally thought. He filed a claim under the Act. The Court of Appeals for the Ninth Circuit held that his injury was inflicted at the time of the accident and not when the full extent of the injury was first learned. It affirmed the disallowance of his claim by the Commission. This ruling of the United States Court of Appeals was affirmed in 309 U.S. 619, 60 S.Ct. 465, 84 L.Ed. 983, by an equally divided court.
18
In Pillsbury v. United Engineering Co., 342 U.S. 197, 72 S.Ct. 223, 96 L.Ed. 225, the Supreme Court granted certiorari because of a conflict in circuits in the matter of whether a cause of action accrued on the date of the accident or whether it accrued when the plaintiff was disabled and first learned the full extent of his injuries. The conflict was between the decisions of the Court of Appeals for the Ninth Circuit in Pillsbury v. United Engineering Co., 187 F.2d 987, which held that the action accrued on the date of the accident, and the decision in the Court of Appeals for the District of Columbia, in the case of Great American Indemnity Co. v. Britton, 86 U.S. App.D.C. 44, 179 F.2d 60, which held that the action accrued when the full extent of the injuries were known. In that case the Supreme Court followed the decision of the Court of Appeals for the Ninth Circuit and rejected the conclusion of the Court of Appeals for the District of Columbia, 342 U.S. 197, 72 S.Ct. 223, 96 L.Ed. 225. It likewise appears in that case that Potomac Electric Power Co. v. Cardillo, 71 U.S.App.D.C. 163, 107 F.2d 962, and DiGiorgio Fruit Corp. v. Norton, 3 Cir., 93 F. 2d 119, which are, with the Britton case, relied on by the appellant, were called to the attention of the Supreme Court. Indeed they were cited in the dissenting minority opinion in the Pillsbury case, but were ignored in the majority opinion. 342 U.S. 197, 203, 72 S.Ct. 223, 96 L.Ed. 225.
19
The appellant likewise places great reliance upon the case of Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. It should be noted that the Urie case concerns an occupational disease. It is also reported in the American Law Reports. In an annotation attached to the report of that case in 11 A.L.R.2d 279, the editors point out on page 281 the distinction between cases involving the contracting of a disease by infection or from exposure to gases, dust or other substances which may be capable of producing disease, and cases of disease following traumatic injuries, they say:
20
"In the latter sort of case some injury and therefore a cause of action or claim ordinarily results immediately, so that for limitation purposes the situation logically differs from that of a mere exposure to disease which may or may not result in an injury and a cause of action."
21
It has been held in many cases that a motion for summary judgment should be sustained when the undisputed facts show that under the law the statute of limitations bars the action, or when the equitable doctrine of laches is applicable. See R. F. C. v. Goldberg, 7 Cir., 143 F.2d 752-9; Suckow Borax, etc. v. Borax Consolidated, 9 Cir., 185 F.2d 196, 204-205; and DeLuca v. Atlantic Refining Co., 2 Cir., 176 F.2d 421, 422, 433.
22
In view of the foregoing authorities, we are constrained to hold that the District Court properly held that appellant's cause of action was barred under the limitation contained in sec. 6 of the Federal Employers' Liability Act.
23
The judgment of the District Court is therefore
24
Affirmed.
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FILED
United States Court of Appeals
Tenth Circuit
June 27, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-4216
v. (D.C. No. 2:07-CR-350-TC-1)
(D. Utah)
MICHAEL L. DAVIDSON, a/k/a
Michael L. Peterson,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, EBEL, and O’BRIEN, Circuit Judges.
Defendant-Appellant Michael Davidson pleaded guilty to one count of
escaping from federal custody in violation of 18 U.S.C. § 751(a). The district
court sentenced Mr. Davidson to 33 months’ imprisonment and three years’
supervised release. On appeal, Mr. Davidson challenges the district court’s
application of a 2-level upward adjustment pursuant to § 3C1.2 of the United
States Sentencing Guidelines (“Guidelines”) for reckless endangerment during
flight. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
3742(a) and affirm.
Background
On June 21, 2002, Mr. Davidson was sentenced by a district court to 60
months’ imprisonment for possession of a firearm while drug trafficking. After
serving most of his sentence, he was furloughed from a federal penitentiary in
Atwater, California and was required to self-report to a halfway house in Salt
Lake City, Utah on April 19, 2007. Mr. Davidson notified the halfway house that
he had been bumped from his bus in Las Vegas, Nevada in the early morning of
April 19, but he did not arrive later that day.
Law enforcement had no contact with Mr. Davidson until May 19, 2007, a
month later, when police officers in Salt Lake City noticed a suspicious person
sitting in a vehicle in a grocery store parking lot. Due to the person’s suspicious
behavior, the officers checked the license plate on the vehicle which revealed that
the vehicle was stolen. As the officers activated their lights and siren, Mr.
Davidson quickly drove the vehicle across the parking lot nearly striking the
officers’ vehicle. Because many vehicles and pedestrians populated the parking
lot, the officers did not continue their pursuit. Mr. Davidson then slammed on the
brakes, stopping before driving off a small cement wall into cross traffic. Mr.
Davidson then fled on foot and hid behind a trash container where the officers
apprehended him. When asked why he fled, Mr. Davidson explained “I saw the
-2-
cops and did not want to get caught.” III R. at 3. A search of the vehicle
revealed an empty pack of cigarettes containing a green leafy substance (later
tested as marijuana), two drug pipe screens, a small bag with marijuana leaves
colored on it, and a capped syringe. Mr. Davidson admitted the marijuana was
his, but not the syringe.
At sentencing, Mr. Davidson objected to the application of a 2-level
upward adjustment under § 3C1.2 for reckless endangerment during flight,
arguing that a nexus must exist between his flight from the officers and the crime
of conviction, i.e., his escape from the halfway house. The district court rejected
this argument concluding that the Tenth Circuit has never required a nexus under
§ 3C1.2, applied the enhancement, and sentenced Mr. Davidson to 33 months’
imprisonment, the low end of the applicable guidelines range, and three years’
supervised release.
Discussion
We review the district court’s application of the Guidelines de novo and
any factual findings for clear error. United States v. Wolfe, 435 F.3d 1289, 1295
(10th Cir. 2006). We give due deference to the district court’s application of the
Guidelines to the facts. Id.
Section 3C1.2 of the Guidelines adjusts a defendant’s offense level upward
two levels “[i]f the defendant recklessly created a substantial risk of death or
-3-
serious bodily injury to another person in the course of fleeing from a law
enforcement officer.” On appeal, Mr. Davidson argues that the district court
erred by not requiring that a nexus exist under § 3C1.2 between his flight from
the officers and his escape from the halfway house. Mr. Davidson argues that
§ 1B1.3 requires that all enhancements applied under Chapter Three of the
Guidelines relate to the offense of conviction. Section 1B1.3(a) provides in
relevant part,
Unless otherwise specified, . . . adjustments in Chapter Three[] shall be
determined on the basis of the following:
(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant;
...
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.
Mr. Davidson argues that the section refers specifically to the offense of
conviction and requires a nexus with that offense, and that such a nexus is
missing in this case.
We have previously addressed arguments similar to Mr. Davidson’s on at
least two occasions in unpublished opinions. First, we rejected the argument that
the reckless endangerment must occur during the flight to avoid arrest for the
particular offense of conviction. United States v. Green, No. 98-5256, 2001 WL
50754, *2 (10th Cir. 1999) (unpublished). Instead, the enhancement is simply
-4-
part of the relevant conduct a district court may consider under § 1B1.3 in
determining the appropriate offense level and criminal history. See id. Second,
another unpublished Tenth Circuit case held that a district court did not commit
plain error in concluding that § 3C1.2 does not contain a nexus requirement,
reasoning that even though § 1B1.3 may suggest a nexus, it does not
unequivocally state such a requirement and, at that time, no circuit had required a
nexus. United States v. Weathersby, 89 F. App’x 683, 689 (10th Cir. 2004)
(unpublished).
Section § 3C1.2 has also received varying treatment by the circuits. The
Ninth Circuit has assumed without deciding that § 3C1.2 requires a nexus
between the crime of conviction and the reckless endangerment. See United
States v. Duran, 37 F.3d 557, 559–60 (9th Cir. 1994). The Sixth Circuit decided
that § 3C1.2 does not require a nexus in an unpublished opinion, United States v.
Lykes, 71 F. App’x 543, 553 n.7 (6th Cir. 2003) (unpublished), but then reversed
itself in a published opinion concluding that the section does have a nexus
requirement, United States v. Dial, 524 F.3d 783, 787 & n.2 (6th Cir. 2008). The
Fifth Circuit has also found a nexus requirement in § 3C1.2. United States v.
Southerland, 405 F.3d 263, 268 (5th Cir. 2005).
We have doubts whether there is a nexus requirement since reckless
endangerment may simply be part of relevant conduct under § 1B1.3, but we need
not weigh in on the question today. We will assume, without deciding, that
-5-
§ 3C1.2 does require a nexus between the offense of conviction and the flight, and
conclude that plainly there is a nexus between Mr. Davidson’s escape from the
halfway house and his flight from the officers. Mr. Davidson’s offense, escape
from federal custody under § 751(a), is a continuing offense. United States v.
Bailey, 444 U.S. 394, 413 (1980). Because escape is a continuing offense, Mr.
Davidson’s escape “occurred during the commission of the offense of conviction”
as required by § 1B1.3. This conclusion accords with our precedent where we
have held that “escape presents a continuing threat of violence until the escapee is
safely returned to custody.” United States v. Brown, 314 F.3d 1216, 1224 (10th
Cir. 2003).
Mr. Davidson argues that Brown requires further analysis whether the
offense is sufficiently connected to the escape even after finding the escape to be
continuing. Cf. id. at 1225. However, unlike § 3C1.2, the section at issue in
Brown, § 2K2.1(b)(5) (redesignated as § 2K2.1(b)(6) by the 2006 Amendments to
the Guidelines), contains language requiring a nexus, i.e., the defendant’s use of
the firearm or ammunition must be “in connection with” another felony offense.
Further, Mr. Davidson’s flight “occurred during the commission” of escape and
“in the course of attempting to avoid detection” because he was still in the course
of committing the offense of escape by fleeing from the officers. U.S.S.G. §
1B1.3(a)(1). This outcome is distinguishable from the facts and analysis in
Southerland where the Fifth Circuit specifically noted that “the discrete,
-6-
noncontinuing offense was complete prior to the chase.” 405 F.3d at 268. Mr.
Davidson did not object to any of the factual findings in the presentence report
regarding his flight from the officers across the parking lot. Although counsel
points out that the evidence suggests that Mr. Davidson fled to avoid being
arrested with drugs in possession, while he was high, and while driving a car with
a stolen license plate, the evidence also suggests that he fled to avoid getting
caught, a reason which surely encompasses his escape from federal custody. The
district court did not err in concluding that the enhancement under § 3C1.2 was
proper in this case.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-7-
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***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
TANYA STUBBS v. ICARE MANAGEMENT, LLC,
ET AL.
(AC 42551)
Keller, Bright and Beach, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for employment
discrimination pursuant to the Connecticut Fair Employment Practices
Act (§ 46a-51 et seq.) following the termination of her employment. The
plaintiff, who was employed by the defendants as a certified nursing
assistant (CNA), alleged that she was approved for unpaid leave by
the defendants in order to undergo knee surgery but, while she was
recovering from that surgery, she was terminated for failing to report
to work and for failing to report her absences on two dates that occurred
approximately one week before her surgery. The plaintiff alleged that
prior to these absences, she received a phone call from one of the
defendants’ employees, who told her not to report to work on those
two dates, as the defendants were overbooked with CNAs. Since her
surgery, the plaintiff has not sought work as a CNA, because she believed
she has not yet recovered sufficiently to perform the essential functions
required of that position. The defendants filed a motion for summary
judgment and in support thereof, submitted various documents including
the defendants’ attendance policy, portions of the plaintiff’s sworn depo-
sition, disciplinary reports warning the plaintiff about her absenteeism
and the certified letter sent to the plaintiff, which terminated her employ-
ment. The trial court granted the defendants’ motion for summary judg-
ment and rendered judgment thereon, from which the plaintiff appealed
to this court. Held:
1. The trial court erred in rendering summary judgment in favor of the
defendants as to the plaintiff’s discrimination claims, as there was a
genuine issue of material fact as to whether the termination of the
plaintiff’s employment was pretextual and as to whether, at the time
her employment was terminated, the plaintiff was qualified to perform
the essential functions of her job, with a reasonable accommodation of
a leave of absence: the record was devoid of any evidence regarding
how the defendants treated employees similarly situated to the plaintiff
who had sought leave to accommodate a disability, and a jury reasonably
could conclude that the defendants told the plaintiff not to report to
work on the dates at issue in order to create a pretext so that they
would have a ground to terminate her employment independent of her
disability and of her request for a leave of absence accommodation; the
court’s conclusion that the plaintiff failed to establish a prima facie case
of discrimination based on the material fact that the plaintiff was not
qualified to perform the essential functions of her job was incorrect, as
it was based on evidence of the plaintiff’s ability to perform after her
employment was terminated, the determination of whether the defen-
dant was qualified, with or without an accommodation, must be made
at the time of termination.
2. The trial court erred in rendering summary judgment for the defendants
on the plaintiff’s reasonable accommodation claims, as there was at
least a genuine issue of material fact as to whether the plaintiff could
perform the essential functions of her job with an accommodation of
a leave of absence to have and recover from surgery; the court incorrectly
focused on the plaintiff’s accommodations after the defendants termi-
nated her employment, had the defendants terminated the plaintiff’s
employment at the end of the three month leave of absence, her inability
to perform the essential functions of her job at that time would have
been highly relevant, and likely to be dispositive of her claim, however,
the defendants terminated her employment shortly after her leave of
absence had begun and thus, it was expected, although not certain, that
the plaintiff would have been able to return to work following the
accommodation of a leave of absence.
3. This court declined to review the plaintiff’s claims alleging retaliation, as
those claims had been inadequately briefed; the brief was devoid of any
discussion of the elements of retaliation, the law governing such, or the
court’s analysis of the plaintiff’s claims.
Argued February 5—officially released June 30, 2020
Procedural History
Action to recover damages for, inter alia, alleged
employment discrimination, and for other relief,
brought to the Superior Court in the judicial district of
New Haven, where the trial court, S. Richards, J.,
granted the defendants’ motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed to this court. Reversed in part; further pro-
ceedings.
Zachary T. Gain, with whom, on the brief, was James
V. Sabatini, for the appellant (plaintiff).
Rachel V. Kushnel, for the appellees (defendants).
Opinion
BRIGHT, J. The plaintiff, Tanya Stubbs, appeals from
the summary judgment rendered by the trial court in
favor of the defendants, ICare Management, LLC
(ICare), and Meriden Care Center, LLC (Meriden), on
the plaintiff’s complaint, which alleged violations of the
Connecticut Fair Employment Practices Act, General
Statutes § 46a-51 et seq. In particular, the plaintiff
alleged that the defendants terminated her due to her
disability, failed to provide her with a reasonable
accommodation for her disability, and retaliated against
her for requesting a reasonable accommodation.1 On
appeal, the plaintiff claims that the court erred in
determining that there were no genuine issues of mate-
rial fact as to whether (1) the defendants’ stated reason
for their termination of the plaintiff’s employment was
pretextual and as to whether, at the time her employ-
ment was terminated, she was qualified, with or without
a reasonable accommodation, to perform the essential
functions of her job, and (2) the defendants failed to
provide the plaintiff with a reasonable accommodation.
Because there are genuine issues of material fact as to
the plaintiff’s claims of discrimination and failure to
accommodate, we reverse the judgment of the trial
court as to those claims. We affirm the trial court’s
judgment as to the plaintiff’s claims of retaliation
because she has failed to brief the claims and, therefore,
has abandoned them.
The following facts, viewed in the light most favor-
able to the plaintiff, and procedural history are relevant
to our analysis of the plaintiff’s claims on appeal. Meri-
den is a skilled nursing facility that does business as
Silver Springs Care Center; ICare manages Silver
Springs Care Center. The plaintiff began working for
the defendants in April, 2015, as a certified nursing
assistant (CNA). Prior to being hired by the defendants,
the plaintiff had worked as a licensed CNA since shortly
after she graduated from high school in 1982. When she
was hired by the defendants, the plaintiff was able to
perform the essential functions of her job, which
included pushing residents in wheelchairs, pushing
medical carts, and direct patient care, including feeding
and assisting with ambulation. In June, 2015, the defen-
dants gave the plaintiff a positive performance review.
The review did not identify any function of her job that
the plaintiff could not perform. In fact, the evaluation
stated that the plaintiff met the standards for all job
requirements, except for attendance, as to which the
evaluation stated that there was one issue, and that the
plaintiff had taken actions to ensure that the issue did
not arise again. The evaluation also described the plain-
tiff as an excellent employee.
The plaintiff does have a physical disability2 and had
a history of knee problems, which resulted in multiple
surgeries on both of her knees, before she began work-
ing for the defendants. Nevertheless, she was experienc-
ing no difficulties with her knees when she was hired
by the defendants. At some point while working for the
defendants, the plaintiff began experiencing severe pain
in both knees. Consequently, she requested that her
work hours be reduced from twenty hours per week
to twelve hours per week. The defendants agreed. By
the end of 2015, the plaintiff informed the defendants
that she needed to have surgery on her right knee. She
requested leave under the Family and Medical Leave
Act, 29 U.S.C. § 2601 et seq., which request the defen-
dants denied because the plaintiff had not worked for
the defendants long enough to qualify for such leave.
The defendants informed the plaintiff, however, that
she could apply for an unpaid leave of absence, which
she did. The defendants approved the plaintiff’s unpaid
leave of absence, to begin on February 10, 2016, so
that the plaintiff could have and recover from her knee
surgery. It was anticipated that the plaintiff would need
approximately three months to recuperate.
While the plaintiff was recovering from surgery, she
received a phone call from an employee of one of the
defendants informing her that her employment was
being terminated for failing to report to work and for
failing to call to report her absence, which the defen-
dants termed a ‘‘no call no show,’’ on February 6 and
7, 2016.3 Thereafter, the plaintiff received a letter from
Gail Mari, an employee of Meriden, confirming the plain-
tiff’s termination from employment. The letter stated
that the plaintiff’s employment was terminated ‘‘due
to second occurrence of no call no show activity on
[February 6 and 7, 2016].’’4 The defendants’ ‘‘Daily eCen-
tral Facility Call Out/Replacement Log,’’ submitted by
the plaintiff in opposition to the defendants’ motion for
summary judgment, includes an entry for the plaintiff,
dated February 6, 2016, stating that the plaintiff was a
‘‘no call no show’’ on that date. The log does not contain
an entry for the plaintiff for February 7, 2016. In addi-
tion, no party submitted an affidavit or any other evi-
dence explaining the log, when it was completed, or by
whom it was completed.
The plaintiff testified at her deposition that she was
not a no call no show on February 6 and 7, 2016. She
testified that she had received a phone call from one
of the defendants’ employees, whom she could not iden-
tify, telling her not to report to work on those dates
because the defendants were overbooked with CNAs.
She further testified that the defendants ‘‘constantly’’
overbooked employees and that she and other CNAs
were called quite often and told not to report to work.
She also testified that she told the director of nursing,
the assistant director, and some of the other CNAs that
she had been told not to report to work on February
6 and 7, 2016. She identified the director of nursing as
‘‘Valerie something.’’ According to the plaintiff, Valerie
said that she would look into it. The defendants submit-
ted no affidavit from Valerie or any other employee
addressing the plaintiff’s testimony that she was told
not to report to work because Meriden was overbooked
and that the plaintiff had reported the call to various
employees of the defendants.
Although the plaintiff received clearance from her
physician to return to work without restrictions on May
10, 2016, she has not sought work as a CNA. In fact,
as of March 23, 2018, the date of her deposition, the
plaintiff still believed that she had not recovered suffi-
ciently to perform the essential functions of a CNA and
she had no plans to return to that profession.
Following a January 31, 2017 release of jurisdiction
notice from the Commission on Human Rights and
Opportunities, the plaintiff, on March 25, 2017, com-
menced this action by service of process against the
defendants. The plaintiff alleged the following causes of
action against each defendant: disability discrimination
(counts one and two), retaliation (counts three and
four), failure to accommodate (counts five and six)—
all in violation of General Statutes § 46a-60—and aiding
and abetting against ICare.5 The defendants responded
with an answer and several special defenses.
On April 26, 2018, the defendants filed a motion for
summary judgment on all counts of the plaintiff’s com-
plaint. In their motion, the defendants alleged that there
were no disputed material facts, and that they were
entitled to judgment as a matter of law because (1)
the plaintiff could not establish a prima facie case to
support any of her claims, and (2) her employment was
terminated for a nondiscriminatory reason, namely, that
she had failed to report to work on two scheduled days
before her leave of absence without notifying them, in
violation of their attendance policy. In support of their
motion, the defendants submitted a memorandum of
law, a portion of the plaintiff’s sworn deposition, and
various documents, including the defendants’ atten-
dance policy, disciplinary reports warning the plaintiff
about her absenteeism and no call no shows, and Mari’s
February 17, 2016 certified letter that had been sent to
the plaintiff by the defendants terminating her employ-
ment for ‘‘no call no show activity’’ on February 6 and
7, 2016.
The plaintiff objected to the defendants’ motion, con-
tending that there existed genuine issues of material
fact. Attached to her memorandum of law in opposition
to the defendants’ motion for summary judgment was
a portion of her deposition and various documents,
including her request for leave, the defendants’ ‘‘Daily
eCentral Facility Call Out/Replacement Log,’’ and the
defendants’ letter notifying her that her employment
had been terminated ‘‘for cause.’’
Following a September 24, 2018 short calendar hear-
ing, the court, on January 18, 2019, issued a memoran-
dum of decision in which it granted the defendants’
motion for summary judgment. After setting forth the
applicable law governing the plaintiff’s claims and the
standard for summary judgment, the court concluded
that the plaintiff had set forth sufficient, albeit scant,
evidence showing that her employment was terminated
‘‘under circumstances giving rise to an inference of
discrimination.’’ Specifically, the court referred to the
plaintiff’s deposition wherein she testified that she had
requested and been granted time off to have knee sur-
gery, but, just a few days before she was scheduled to
begin her leave of absence, the defendants told her that
she did not have to report to work, specifically on the
February 6 and 7, 2016, due to overstaffing, and there-
after wrote her up as a no call no show for those days,
using her nonattendance as a basis for the termination
of her employment. The court also concluded, however,
that the defendants had produced documents that dem-
onstrated a legitimate nondiscriminatory reason for the
termination of the plaintiff’s employment, namely, that
the plaintiff repeatedly had violated the defendants’
absenteeism policy, and that the plaintiff had produced
no evidence to indicate that the call she had received
telling her not to report to work on February 6 and 7,
2016, was ‘‘motivated by illegal discriminatory bias.’’
The court also focused on the fact that the plaintiff
testified that she was treated the same as other employ-
ees while at work.
Additionally, the court concluded that the plaintiff
could not establish a prima facie case of discrimination
because she admitted in her deposition that she was
not qualified for the position of CNA at the time she
was terminated from her employment and that she has
not been qualified since that time. As to the plaintiff’s
claim that the defendants failed to provide her with a
reasonable accommodation, the court concluded that
the plaintiff admitted that she had never requested an
accommodation other than her medical leave, which
the defendants granted. Insofar as the plaintiff argued
that the defendants effectively denied her the accommo-
dation of a leave of absence because they terminated
the plaintiff’s employment shortly after her leave com-
menced, the court concluded that the plaintiff readily
admitted that she had not been able to perform the
functions of her job since her surgery, with or without
an accommodation. Finally, as to the plaintiff’s claim
of retaliation, the court concluded that because the
defendants had advanced a nondiscriminatory reason
for terminating the plaintiff’s employment, namely, her
repeated no call no shows, she could not establish a
prima facie case of retaliation. Accordingly, the court
rendered judgment in favor of the defendants. This
appeal followed.
Initially, we set forth our standard of review. ‘‘The
standard of review of a trial court’s decision granting
summary judgment is well established. Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted 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. In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The courts are in entire agreement that the
moving party . . . has the burden of showing the
absence of any genuine issue as to all the material facts
. . . . When documents submitted in support of a
motion for summary judgment fail to establish that
there is no genuine issue of material fact, the nonmoving
party has no obligation to submit documents establish-
ing the existence of such an issue. . . . Once the mov-
ing party has met its burden, however, the [nonmoving]
party must present evidence that demonstrates the exis-
tence of some disputed factual issue. . . . Our review
of the trial court’s decision to grant the defendants’
motion for summary judgment is plenary. . . . On
appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Internal quotation marks omitted.) Barbabosa v. Board
of Education, 189 Conn. App. 427, 436–37, 207 A.3d
122 (2019).
I
On appeal, the plaintiff claims that the court erred
in rendering summary judgment on her disability dis-
crimination claims because there are genuine issues of
material fact as to whether the defendants’ stated rea-
son for its termination of the plaintiff’s employment
was pretextual and as to whether, at the time her
employment was terminated, she was qualified, with or
without a reasonable accommodation, to perform the
essential functions of her job. We agree with the
plaintiff.
‘‘Under the Connecticut Fair Employment Practices
Act . . . employers may not discriminate against cer-
tain protected classes of individuals, including those
who are physically disabled.’’ Desrosiers v. Diageo
North America, Inc., 314 Conn. 773, 775, 105 A.3d 103
(2014). Section 46a-60 (b) (1) provides in relevant part:
‘‘It shall be a discriminatory practice . . . [f]or an
employer . . . to discharge from employment any indi-
vidual or to discriminate against such individual in com-
pensation or in terms, conditions or privileges of
employment because of the individual’s . . . physical
disability . . . .’’
‘‘The term pretext is most often used in the context
of evaluating claims of discrimination based on adverse
employment action under the burden shifting analysis
enumerated by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and adopted
by this court in Ford v. Blue Cross & Blue Shield of
Connecticut, Inc., 216 Conn. 40, 53–54, 578 A.2d 1054
(1990). Under this analysis, the employee must first
make a prima facie case of discrimination. The
employer may then rebut the prima facie case by stating
a legitimate, nondiscriminatory justification for the
employment decision in question. The employee then
must demonstrate that the reason proffered by the
employer is merely a pretext and that the decision actu-
ally was motivated by illegal discriminatory bias.
Craine v. Trinity College, 259 Conn. 625, 637, 791 A.2d
518 (2002).
‘‘In order to establish a prima facie case, the com-
plainant must prove that: (1) he [was] in the protected
class; (2) he was qualified for the position; (3) he suf-
fered an adverse employment action; and (4) that the
adverse action occurred under circumstances giving
rise to an inference of discrimination. . . . Jacobs v.
General Electric Co., 275 Conn. 395, 400, 880 A.2d 151
(2005). We note, additionally, that [t]he [fact finder’s]
disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion
of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimina-
tion. Thus, rejection of the defendant’s proffered rea-
sons will permit the trier of fact to infer the ultimate
fact of intentional discrimination, and . . . upon such
rejection, [n]o additional proof of discrimination is
required . . . . St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).’’
(Internal quotation marks omitted.) Jackson v. Water
Pollution Control Authority, 278 Conn. 692, 705–706,
900 A.2d 498 (2006). ‘‘[T]o defeat summary judgment
[however] . . . the plaintiff’s admissible evidence
must show circumstances that would be sufficient to
permit a rational finder of fact to infer that the defen-
dant’s employment decision was more likely than not
based in whole or in part on discrimination . . . .’’
(Internal quotation marks omitted.) Taing v. Camrac,
LLC, 189 Conn. App. 23, 28, 206 A.3d 194 (2019).
A
We turn first to the court’s conclusion that, although
the plaintiff produced sufficient evidence to show that
her employment ‘‘was terminated under circumstances
giving rise to an inference of discrimination,’’ she failed
to present evidence sufficient to create a genuine issue
of material fact that the defendants’ stated reason for
terminating the plaintiff was pretextual. ‘‘To prove pre-
text, the plaintiff may show by a preponderance of the
evidence that [the defendant’s] reason is not worthy of
belief or that more likely than not it is not a true reason
or the only true reason for [the defendant’s] decision
to [terminate the plaintiff’s employment] . . . . Of
course, to defeat summary judgment . . . the plaintiff
is not required to show that the employer’s proffered
reasons were false or played no role in the employment
decision, but only that they were not the only reasons
and that the prohibited factor was at least one of the
motivating factors.’’ (Citation omitted; internal quota-
tion marks omitted.) Taing v. Camrac, LLC, supra, 189
Conn. App. 28–29. ‘‘A plaintiff may show pretext by
demonstrating such weaknesses, implausibilities,
inconsistencies, incoherences, or contradictions in the
employer’s proffered legitimate reasons for its action
that a reasonable [fact finder] could rationally find them
unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory rea-
sons.’’ (Internal quotation marks omitted.) Bombero v.
Warner-Lambert Co., 142 F. Supp. 2d 196, 203 n.7 (D.
Conn. 2000), aff’d 9 Fed. Appx. 38 (2d Cir. 2001).
The court correctly accepted, at the summary judg-
ment stage, the plaintiff’s sworn testimony that she was
not a no call no show on February 6 and 7, 2016, but
that she was told by the defendants not to report on
those days. Nevertheless, the court found that there
was no evidence that the plaintiff was treated differently
than other employees, and, therefore, there was no evi-
dence that the defendants’ decision to terminate the
plaintiff’s employment was motivated by an illegal dis-
criminatory bias.
The court’s analysis misses the import of the plain-
tiff’s claim. The plaintiff does not claim that she was
discriminated against because of her disability while at
work. Instead, her claim is that the defendants discrimi-
nated against her because she sought leave due to her
disability. The record is devoid of any evidence, one
way or the other, regarding how the defendants treated
employees similarly situated to the plaintiff who sought
leave to accommodate a disability. What the evidence,
viewed in the light most favorable to the plaintiff, does
reflect is that the plaintiff requested and was granted
a leave of absence beginning on February 10, 2016, to
have surgery to correct knee pain that arose from her
disability. The plaintiff submitted evidence that, four
days before her leave was scheduled to begin, the defen-
dants called her to tell her not to report to work on
February 6 and 7, 2016, because they were overbooked
with CNAs on those days. Days later, while the plaintiff
was recovering from surgery, an employee of the defen-
dants called the plaintiff and informed her that her
employment was being terminated for a no call no show
on February 6 and 7, despite the fact that the defendants
had told her not to report to work. Furthermore, the
daily log kept by the defendants does not show that
the plaintiff was a no call no show on February 7.
Finally, the plaintiff testified at her deposition that it
was not true that she had a previous no call no show
on December 3, 2015, or that she was suspended for
that alleged incident.6 On the basis of this evidence,
if believed, a jury reasonably could conclude that the
defendants told the plaintiff not to come to work on
February 6 and 7, 2016, in order to create a pretext that
she was a no call no show on those days so that they
would have a ground to terminate her independent of
her disability and her request for a leave of absence
accommodation. Consequently, the court erred in con-
cluding that there were no genuine issues of material
fact regarding whether the defendants’ stated reason for
terminating the plaintiff’s employment was pretextual.
B
We turn next to the court’s conclusion that the plain-
tiff failed to establish a prima facie case of discrimina-
tion because she failed to establish a genuine issue of
material fact as to whether she was qualified to perform
the essential functions of her job, with the reasonable
accommodation of a leave of absence, at the time the
defendants terminated her employment.
To establish a prima facie case of employment dis-
crimination pursuant to § 46a-60 (b) (1) on the basis of
either a disability discrimination claim or a reasonable
accommodation claim, a plaintiff must establish a com-
mon essential element, namely, that he or she is quali-
fied for the position. See Curry v. Allan S. Goodman,
Inc., 286 Conn. 390, 415, 425–26, 944 A.2d 925 (2008).
‘‘To be a qualified individual with a disability, a plain-
tiff must be able to perform the essential functions of
his job, with or without a reasonable accommodation,
at the time of the adverse employment decision.’’
(Emphasis added.) Tomick v. United Parcel Service,
Inc., 135 Conn. App. 589, 611 n. 15, cert. denied, 305
Conn. 920, 47 A.3d 389 (2012).
In the present case, the court rested its conclusion
that there was no genuine issue of material fact that
the plaintiff was not qualified to perform the essential
functions of her job on the plaintiff’s deposition testi-
mony. The plaintiff testified at her deposition, in March,
2018, that she was unable to perform the essential func-
tions of a CNA following her surgery and that, two years
after the surgery, she still was unable to perform those
functions. On the basis of this testimony, the court
concluded that ‘‘[t]he evidence shows that the plaintiff
was unable to perform the essential functions of her
job as a CNA at the time of the adverse employment
action and remained unable to do so at least until the
time of her deposition in March of 2018.’’
The problem with the court’s analysis is that it is
based on evidence of the plaintiff’s inability to perform
the essential functions of her job after her employment
was terminated. At the time the defendants terminated
her employment, the plaintiff had just undergone knee
surgery. The purpose of the plaintiff’s leave of absence
was to permit her to have the surgery and to recover
from it so that she could return to work. Put another
way, the expectation of the parties was that the plaintiff
would be able to perform the essential functions of
her job with the accommodation of a leave of absence
related to her knee surgery. Thus, when the defendants
terminated the plaintiff’s employment, immediately
after her surgery, it still was expected that she would
remain qualified to perform the essential functions of
her job, as she was before her surgery, if allowed the
accommodation of time to recover. It was only after
her employment was terminated, and she was unable
to recover sufficiently, that it became clear that she
would not be able to perform the essential functions
of her job, even with the accommodation of the leave
of absence.7 Because, however, the determination of
whether the plaintiff was qualified, with or without an
accommodation, must be made at the time of termina-
tion, the fact that she was unqualified posttermination
is irrelevant. The court’s reliance on the plaintiff’s post-
termination condition for its conclusion that the plain-
tiff was unqualified to perform the essential functions
of her job at the time that she was terminated, there-
fore, was improper, because all of the parties antici-
pated that she again would be qualified after her accom-
modation.8 Consequently, there is a genuine issue of
material fact as to whether the plaintiff was qualified
to perform the essential functions of her job, with the
reasonable accommodation of a leave of absence, at
the time the defendants terminated her employment.
II
We next consider the court’s rejection of the plain-
tiff’s claim that the defendants failed to provide her
with a reasonable accommodation. The plaintiff claims
that this was error, because, although the defendants
granted her request for a leave of absence to have and
recover from knee surgery, there is a genuine issue of
material fact as to whether they then fired her for taking
that accommodation.
‘‘In order to establish a prima facie case for a reason-
able accommodation claim, the plaintiff must produce
enough evidence for a reasonable jury to find that (1)
he is disabled within the meaning of the [statute], (2)
he was able to perform the essential functions of the
job with or without a reasonable accommodation, and
(3) [the defendant], despite knowing of [the plaintiff’s]
disability, did not reasonably accommodate it.’’ (Inter-
nal quotation marks omitted.) Barbabosa v. Board of
Education, supra, 189 Conn. App. 437–38.
The court accurately set forth the parties’ respective
positions regarding the plaintiff’s claim. ‘‘The defendant
argues that there is no evidence in the record that the
plaintiff requested a reasonable accommodation, other
than time off for her surgery, which was granted . . . .
The plaintiff, on the other hand, contends that the defen-
dants effectively denied the leave of absence accommo-
dation because the defendants terminated the plaintiff
shortly after her leave commenced.’’ The court did not
address these respective arguments but, instead, ren-
dered summary judgment because the plaintiff failed
to produce evidence ‘‘that the leave of absence accom-
modation would have ever allowed her to perform the
essential functions of the job.’’ As it did with the plain-
tiff’s discrimination claims, the court focused on the
plaintiff’s deposition testimony that ‘‘she was physically
unable to work even after the alleged three month
period requested for the leave of absence.’’
As was true of its analysis of the plaintiff’s discrimina-
tion claim, the court incorrectly focused on the plain-
tiff’s qualifications after the defendants terminated her
employment. Had the defendants terminated the plain-
tiff’s employment at the end of the three month leave
of absence, her inability to perform the essential func-
tions of her job at that time would be highly relevant,
and, very likely, dispositive of her claim. However, the
defendants terminated her employment shortly after
her leave of absence had begun. At that point, it was
expected, although admittedly not certain, that the
plaintiff would be able to return to work following the
leave of absence accommodation. Thus, at the time of
her termination from employment, there was at least a
genuine issue of material fact as to whether the plaintiff
could perform the essential functions of her job with
the accommodation of a leave of absence to have and
recover from surgery to her right knee. Consequently,
the court erred in rendering summary judgment for the
defendants on the plaintiff’s reasonable accommoda-
tion claims.
III
Finally, the plaintiff claims that the court erred in
rendering summary judgment for the defendants on
her retaliation claims. We decline to review this claim
because it has been inadequately briefed. The appel-
lant’s brief makes only passing references to ‘‘retalia-
tion’’ in its statement of issues, introduction and in a
heading in the argument section of the brief. The brief
is devoid of any discussion of the elements of such
claims, the law governing such claims, or the trial
court’s analysis of the plaintiff’s claims. In fact, the
section of the appellant’s brief which, purportedly, was
going to address the retaliation claims, addresses only
the plaintiff’s disability discrimination claims and asks
only that the court’s decision rendering summary judg-
ment on the disability claims be reversed.
‘‘We are not required to review issues that have been
improperly presented to this court through an inade-
quate brief . . . . Analysis, rather than mere abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . [F]or
this court judiciously and efficiently to consider claims
of error raised on appeal . . . the parties must clearly
and fully set forth their arguments in their briefs . . . .
The parties may not merely cite a legal principle without
analyzing the relationship between the facts of the case
and the law cited.’’ (Citation omitted; internal quotation
marks omitted.) State v. Michael T., 194 Conn. App.
598, 617, 222 A.3d 105 (2019). Accordingly, we decline
to review this claim.
The judgment is reversed as to counts one and two,
which allege discrimination on the basis of disability,
and as to counts five and six, which allege a failure to
accommodate, and the case is remanded for further
proceedings on those counts; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
In her complaint, the plaintiff also brought one count of ‘‘aiding and
abetting’’ against ICare. She raises no claim of error on appeal in regard to
the court rendering judgment in favor of ICare on that count.
2
It is not disputed that the plaintiff has a condition known as Turner
Syndrome.
3
The record is unclear as to the date of the plaintiff’s surgery. The plaintiff
testified at her deposition that she could not recall the exact date of her
surgery, but it was ‘‘something like’’ February 10, 2016. She further testified
that she was verbally informed of her termination by a phone call she
received while still under the effects of anesthesia. Finally, a February 17,
2016 letter from one of Meriden’s employees stated that it was confirming
her telephone discussion with the plaintiff that day. Thus, it appears from
the record that the plaintiff’s surgery happened no earlier than February
10, 2016, when her leave of absence started, and no later than February
17, 2016.
4
Mari’s letter does not identify the first no call no show occurrence.
The evidence submitted in support of the defendants’ motion for summary
judgment includes three corrective action records relating to the plaintiff’s
attendance. Only one of the records, dated December 17, 2015, indicates
that the plaintiff was a no call no show. That record reflects that the plaintiff
received a one day suspension due to being a no call no show on December 3,
2015. The corrective action record prepared in connection with the plaintiff’s
termination also states that the plaintiff was a no call no show on December
3, 2015. The plaintiff disputes the accuracy of these records. She testified
at her deposition that she had the day off on December 3, 2015, so she was
not a no call no show on that date. She further testified that she was never
suspended and noted that she did not sign the record where it calls for the
employee’s signature. On the line where the plaintiff would have signed,
someone handwrote the words ‘‘via telephone.’’ The plaintiff denied ever
having such a phone call with an employee of one of the defendants about the
December 3, 2015, alleged no call no show. Despite the plaintiff’s deposition
testimony, the defendants provided no affidavits from anyone who com-
pleted the record, who spoke to the plaintiff about the alleged no call no
show, or who could confirm that the plaintiff, in fact, was suspended.
5
See footnote 1 of this opinion.
6
The court also noted that the defendants presented evidence that the
plaintiff violated their absenteeism policy on at least three separate occa-
sions. Any reliance on those occasions to support the defendants’ motion
for summary judgment is misplaced because the defendants’ stated reason
for terminating the plaintiff’s employment was that her failure to come to
work on February 6 and 7, 2016, was her second no call no show incident,
with the first such incident allegedly having occurred on December 3, 2015.
On the basis of the plaintiff’s deposition testimony, there is a genuine issue
of material fact as to whether she was a no call no show on any of those
dates. Any other attendance issues, not being the stated reason for the
defendants’ termination of the plaintiff’s employment, are irrelevant to the
consideration of the defendants’ motion.
7
The plaintiff argues that there is a genuine issue of material fact as to
whether she was qualified after the defendants terminated her employment
because the plaintiff’s treating physician cleared her to return to work as
of May 10, 2016. Putting aside the relevance of her physician’s opinion,
given the plaintiff’s repeated admissions that she can no longer perform the
essential functions of a CNA, such evidence does not address directly
whether the plaintiff was qualified in February, 2016, when the defendants
terminated her employment.
8
The court and the defendants relied on two cases that made references
to a plaintiff’s posttermination deposition testimony that they remained
unable to perform the essential functions of their jobs at the time of their
depositions: Desmond v. Yale-New Haven Hospital, Inc., 738 F. Supp. 2d
331 (D. Conn. 2010), and Daley v. Cablevision Systems Corp., United States
District Court, Docket No. 12-CV-6316 (NSR) (S.D.N.Y. March 7, 2016), aff’d,
675 Fed. Appx. 97 (2d Cir. 2017). Such reliance is misplaced. Although the
court in each case made reference to the plaintiff’s condition at the time
of his or her deposition, each court’s decision was based on the plaintiff’s
ability to perform the essential functions of his or her job at the time
of his or her termination. In Desmond, the plaintiff’s employment was
terminated only after the plaintiff received an extended leave of absence
following surgery to address her disability and after a medical report indi-
cated that, despite the leave of absence, she remained unable to perform
the essential functions of her job. Desmond v. Yale-New Haven Hospital,
Inc., supra, 738 F. Supp. 2d. 341. Furthermore, she did not argue that the
defendant failed to accommodate her with a leave of absence but, rather,
that it should have provided either a second employee to do the physical
parts of her job that she was unable to perform; id., 348–49; or it should
have provided her with medical treatment to overcome her disability. Id.,
350. The court concluded that neither proposed accommodation was reason-
able as a matter of law. Id., 349–50, 352. Similarly, in Daley, the plaintiff’s
employment was terminated after he had received multiple leaves of
absences to address his disability, but was still unable to perform the essen-
tial functions of his job after the leaves of absence ended. Daley v. Cablevi-
sion Systems Corp., supra, United States District Court, Docket No. 12-CV-
6316 (NSR). The plaintiff also refused to pursue less physically demanding
positions that he could have performed with his disability. Id. In this case,
the defendants do not argue that the plaintiff’s request for a leave of absence
as an accommodation was unreasonable. Furthermore, unlike in Desmond
and Daley, the plaintiff’s employment was terminated during the reasonable
accommodation, not after it had expired.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 10, 2007
No. 05-14050 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-60223-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORVILLE BECKFORD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 10, 2007)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Orville Beckford appeals from his conviction for knowingly possessing a
firearm after previously having been convicted of a felony, in violation of 18
U.S.C. § 922(g)(1). Beckford argues that he was unduly prejudiced by the trial
court’s erroneous admission into evidence of a gun obtained from an illegal search
of his car.
Beckford was arrested by the Broward County Sherriff’s Office and
originally charged in state court with three separate offenses: drinking in public, in
violation of Lauderdale Lakes Ordinance § 15-11; being a convicted felon in
possession of a firearm; and driving with a revoked license. Beckford pled “no
contest” to the charge for driving with a revoked license. The municipal offense of
drinking in public was transferred to county court. The state dismissed the “felon
in possession” charge after the state trial judge granted Beckford’s motion to
suppress the gun.
However, while Beckford’s state “felon in possession” case was still
pending, the federal government charged Beckford with the federal offense of
“felon in possession” under 18 U.S.C. § 922(g)(1), based on the same incident.
Beckford moved to suppress the gun seized in the search of his car in the federal
case as well, but the federal district court denied the motion and Beckford was
convicted of the felony. It is from this conviction that Beckford now appeals.
The facts underlying the arrest in this case began when Sergeant Edward
Velando-Chavez of the Broward County Sheriff’s Office was surveilling a
2
shopping center parking lot in Lauderdale Lakes, Florida, and observed Beckford
remove keys from a white Honda and proceed toward a liquor store in the shopping
center. After about five minutes, Beckford and a male companion returned to the
area where the car was parked and began mixing and drinking rum and Pepsi.
When Chavez approached the two men, Beckford put the rum bottle and cup inside
the car. Chavez informed the men that drinking alcohol in public was a violation
of a city ordinance and requested identification. Beckford denied drinking.
However, Chavez replied that he had observed him doing so, and asked him about
the bottle and cup he had seen Beckford place in the car. Moreover, Chavez could
smell the odor of alcohol on Beckford’s breath. Beckford was argumentative and
insisted that he did not have any identification, that the vehicle was not his, and
that he did not know to whom the vehicle belonged.
After unsuccessful attempts at having Beckford produce identification,
Chavez called for back-up. Officer Jason Hendrick, who responded to Chavez’s
call, testified that upon his arrival, he walked around the perimeter of the car,
peered into the car’s windows, and saw a portion of a gun under the driver’s seat.
The two officers entered Beckford’s car and retrieved the rum bottle and cup, as
well as the gun found under the driver’s seat.
Because Chavez had observed Beckford mix rum and Pepsi in a cup, drink
3
from the cup, and finally put the rum bottle and cup into the backseat of the vehicle
when Chavez approached, the officers had probable cause to believe that evidence
to prove the offense of drinking in public was in the vehicle. The officers’ search
of the vehicle was proper under the “automobile exception” to the Fourth
Amendment warrant requirement, and we therefore affirm the trial court’s denial of
Beckford’s motion to suppress.
AFFIRMED.
4
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00370-CR
NO. 02-16-00371-CR
NO. 02-16-00377-CR
JACOB OWEN EDWARDS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
TRIAL COURT NOS. CR-2014-07164-B, CR-2014-09118-B, CR-2012-08863-B
----------
MEMORANDUM OPINION1
----------
Appellant Jacob Owen Edwards appeals the revocation of his community
supervision and his convictions for driving while intoxicated (DWI) with a previous
DWI conviction and driving while license invalid with a prior conviction for driving
1
See Tex. R. App. P. 47.4.
while license invalid. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2016);
Tex. Transp. Code Ann. § 521.457(a), (f-1) (West 2013).
Appellant was arrested in 2012 for DWI, pleaded nolo contendere, was
found guilty, and was sentenced to 170 days in jail and assessed a fine of $500;
the trial court suspended the sentence and placed Appellant on community
supervision for sixteen months beginning in January 2014. In May 2014, while
Appellant was still on community supervision, he was arrested and charged with
DWI2 with a previous DWI conviction and driving while license invalid with a prior
conviction for driving while license invalid.3 The State filed a first amended
motion to revoke, alleging that Appellant had violated a term of his community
supervision by committing the two new offenses.
The trial court held a combined revocation hearing and non-jury trial. At
the hearing, Appellant pleaded true to each of the allegations in the State’s first
amended motion to revoke, and the trial court found the allegations to be true.
The trial court revoked Appellant’s community supervision in the 2012 DWI case,
sentenced him to 150 days in jail, and assessed a fine of $76. The trial court
accepted Appellant’s open pleas of guilt in the DWI repetition case and in the
2
The record contains a written stipulation in which Appellant stipulated that
the results of his blood draw from May 14, 2014, reflected .202 grams of alcohol
per 100 milliliters of blood and that he was intoxicated while driving.
3
The information filed in the case for driving while license invalid with a
prior conviction for driving while license invalid reflects that Appellant’s previous
conviction was from May 26, 2011.
2
driving while license invalid with a previous conviction case; found Appellant
guilty of both offenses; and sentenced him to 180 days in jail and 90 days in jail,
respectively. Appellant then appealed.
Appellant’s brief was originally due January 17, 2017. Three extensions of
time were granted, extending the deadline for Appellant’s brief to April 17, 2017.
On April 20, 2017, we received a letter from Appellant’s retained appellate
counsel stating, with no explanation, that he would not be submitting a brief on
Appellant’s behalf, instead requesting that this court rule on the appeal “based on
the appellate record as it exists now.” We then abated the appeal and remanded
the case to the trial court for the trial court to conduct a hearing with Appellant
and his retained appellate counsel present and to make findings regarding
whether Appellant intended to prosecute the appeal, whether Appellant was
indigent and should be appointed new counsel, and if not, whether retained
counsel had abandoned the appeal.
At the abatement hearing, retained counsel told the trial court that he
believed there were no non-frivolous issues that he could raise on appeal. The
trial court nevertheless found that Appellant wanted to prosecute his appeal, was
not indigent, and did not wish to seek new counsel or continue the appeal without
counsel.
Upon receipt of the supplemental record, we issued an order stating that “if
retained counsel still believes that there are no nonfrivolous grounds to raise on
appeal––and [A]ppellant still does not wish to proceed pro se––we order retained
3
counsel [] to file a motion to withdraw in compliance with rule 6.5 as described in
Ho[e]flein.”4
On July 10, 2017, Appellant’s retained appellate counsel filed a motion to
withdraw as attorney of record. In the motion, counsel represented that he was
“unable to find any arguable ground of error, as defined by Anders.”5 On July 14,
2017, we notified Appellant through an order that if he desired to file a response
to counsel’s motion, the response was to be filed by August 14, 2017. We
explained that if Appellant did not file a response, we would assume that he did
not intend to do so and that the State would have thirty days to respond. We
stated that after the State filed a response or notified this court that it declined to
respond, we would consider the appeal without briefing. We further stated that if
instead of filing a pro se response Appellant obtained new counsel, he should
notify this court immediately. Appellant did not file a response, nor did he notify
this court that he had retained new counsel. The State filed a letter waiving a
response.
4
See Hoeflein v. State, No. 02-11-00057-CR, 2012 WL 407383, at *1 (Tex.
App.—Fort Worth Feb. 9, 2012, no pet.) (mem. op., not designated for
publication) (setting forth procedure utilized when retained appellate counsel is
“unable to make a compelling argument for reversal . . . despite diligent effort and
research”).
5
See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400
(1967); In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig.
proceeding) (analyzing the effect of Anders).
4
An attorney, whether appointed or retained, is under an ethical obligation
to refuse to pursue a frivolous appeal. See McCoy v. Court of Appeals of Wis.,
486 U.S. 429, 436–37, 108 S. Ct. 1895, 1900–01 (1988). “The procedural
safeguards of Anders and its progeny do not apply to retained attorneys[,] and
we do not have the same supervisory role in guaranteeing the attorney’s
representation.” Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). “This is so because by securing retained counsel, the
appellant has received all that Anders was designed to ensure.” Lopez v. State,
283 S.W.3d 479, 480 (Tex. App.—Texarkana 2009, no pet.); see Pena v. State,
932 S.W.2d 31, 33 (Tex. App.—El Paso 1995, no pet.). Rather, a retained
attorney, on determining that an appeal is frivolous, must inform the court that the
appeal has no merit and seek leave to withdraw by filing a motion complying with
rule of appellate procedure 6.5. See Pena, 932 S.W.2d at 32; see also Tex. R.
App. P. 6.5; Mays v. State, 904 S.W.2d 920, 923 n.1 (Tex. App.—Fort Worth
1995, no pet.). We must then determine whether the motion to withdraw satisfies
the requirements of rule 6.5. See Pena, 932 S.W.2d at 33.
Here, retained counsel’s motion to withdraw does not meet rule 6.5’s
requirements because it does not contain the deadline for Appellant to file a pro
se brief, Appellant’s last known address and telephone number, a statement that
a copy of the motion was sent to Appellant, or a statement that Appellant was
notified in writing of his right to object to the motion. See Tex. R. App. P.
6.5(a)(1)–(4). The certificate of service also does not state that the motion was
5
delivered to Appellant in person or mailed—both by certified and first-class
mail—to the party at the party’s last known address. See Tex. R. App. P. 6.5(b).
Accordingly, we deny retained counsel’s motion to withdraw.6 See Tex. R. App.
P. 6.5(a)–(b); Hinkle v. State, No. 02-14-00274-CR, 2015 WL 1407747, at *1
(Tex. App.—Fort Worth Mar. 26, 2015, no pet.) (mem. op., not designated for
publication); Onick v. State, No. 02-09-00130-CR, 2010 WL 4676992, at *1 (Tex.
App.—Fort Worth Nov. 18, 2010, no pet.) (mem. op., not designated for
publication).
However, this court sent Appellant a copy of our July 14, 2017 order, which
gave him notice that his retained counsel had filed a motion to withdraw and
informed Appellant of his deadline for filing a response to counsel’s motion.
Moreover, the supplemental reporter’s record containing the transcript from the
abatement hearing reflects that Appellant was happy with retained counsel’s
representation of him, that retained counsel had advised him that by pleading
guilty there would be little to appeal, and that Appellant was not surprised that
retained counsel did not find anything to appeal. In the three months since that
order, Appellant has not filed a pro se response or notified us of his intent to
retain new counsel.
6
Having denied counsel’s motion to withdraw, we order counsel to inform
Appellant promptly of the disposition of this case and the availability of
discretionary review. See Rivera v. State, 130 S.W.3d 454, 461 (Tex. App.—
Corpus Christi 2004, no pet.).
6
“[W]e know of no rule that obligates us to retain on our docket an appeal
which an appellant has represented, through his hired attorney, as frivolous
simply because appellant failed to respond to his attorney’s motion to withdraw.”
Torres v. State, 271 S.W.3d 872, 874 (Tex. App.—Amarillo 2008, no pet.). Yet,
in the interest of justice, we have independently examined the record, and we
discern no arguable issue that could warrant reversal. See id. Thus, we affirm
the trial court’s judgments. See id.; Hinkle, 2015 WL 1407747, at *2.
PER CURIAM
PANEL: WALKER, J.; SUDDERTH, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 26, 2017
7
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This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
also note that this electronic memorandum opinion may contain computer-generated errors or other
deviations from the official paper version filed by the Court of Appeals and does not include the
filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 RICHARD GABALDON, JR.,
3 Petitioner-Appellant,
4 vs. No. 31,769
5 MARTHA MONTANO,
6 Respondent-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Elizabeth Whitefield, District Judge
9 Elizabeth Stacy Vencill
10 Albuquerque, NM
11 for Appellants
12 James R. Beam
13 Albuquerque, NM
14 for Appellee
15 MEMORANDUM OPINION
16 GARCIA, Judge.
1 Petitioner appeals an order of the district court refusing to enter supplemental
2 findings of fact and conclusions of law. In our notice, we proposed to affirm.
3 Petitioner has responded to our proposal. We have considered his arguments and not
4 being persuaded, we affirm.
5 Petitioner’s docketing statement raised a number of issues arguing violation of
6 fundamental rights, violation of due process, and district court abuse. We proposed
7 to affirm in large part because Petitioner’s arguments were not clear and were
8 unsupported by relevant authorities.
9 Petitioner responds that our notice did not address the jurisdictional issue.
10 There was no jurisdictional issue raised in the docketing statement. Petitioner now
11 appears to be arguing that the issue in this case was whether the district court had
12 jurisdiction to enter supplemental findings and conclusions based on the record. [MIO
13 4] We do not view this as a jurisdictional issue. The district court’s order does not
14 state that it lacked jurisdiction to enter findings of fact and conclusions of law. It
15 simply states that it will not do so. [DM RP 143] We believe that the district court had
16 jurisdiction to enter the findings if it so desired. However, simply because a district
17 court has jurisdiction to act does not mean that it must do so in any particular way.
18 See Sundance Mech. & Util. Corp. v. Atlas, 109 N.M. 683, 687, 789 P.2d 1250, 1254
19 (1990) (“This Court has repeatedly noted that the jurisdiction of a district court does
2
1 not depend on how the court decides a contested issue submitted to it; the test is
2 whether or not it had power to enter upon the inquiry; not whether its conclusion . . .
3 was right or wrong.” (internal quotation marks and citations omitted)). Therefore, the
4 issue here is not whether the district court could act but whether it erred in refusing
5 to rule as Petitioner requested.
6 Petitioner contends that the district court erred in denying his motion “with
7 prejudice.” [MIO 6, DS 11, 12] He argues that such language can have res judicata
8 effect in the future. We fail to see why. The “with prejudice” language is included
9 only in the order denying Petitioner’s request for entry of supplemental findings and
10 conclusions. We view the “with prejudice” language as simply stating that the district
11 court will not entertain future motions for entry of supplemental findings and
12 conclusions based on prior hearings. We do not agree with Petitioner’s view of the
13 language such that he will no longer be able to bring up the record of prior
14 proceedings. There is nothing in the district court’s order that can even remotely be
15 construed as prohibiting Petitioner from referring in the future to matters that are of
16 record in this case.
17 Petitioner argues that the district court should have made the oral findings of
18 the domestic violence commissioner a part of the written record. As we pointed out
19 in our notice, while it might be the better practice to have such findings in the written
3
1 record, those findings are nevertheless on the record in this case. Likewise, while
2 written findings are more convenient for the court and the parties, the failure to have
3 them does not rise to the level of a violation of due process or fundamental rights. We
4 agree that judicial efficiency would be promoted by the written memorialization of
5 oral findings of fact. But, Petitioner has cited us no authority and we know of none
6 that requires district court judges to take the most judicially efficient road or risk being
7 reversed by the appellate courts.
8 Petitioner’s attempt to distinguish the authorities upon which we relied for
9 general propositions is unpersuasive. Those cases were cited for the general
10 proposition denoted in the parenthetical. They were not cited for their similarity to this
11 particular case. Thus, any attempt by Petitioner to distinguish them on their facts is
12 unavailing.
13 Further, Petitioner accuses this Court of giving an advisory opinion in our
14 notice when we addressed the res judicata effect of the findings made by the domestic
15 violence commissioner in a pending criminal case. We did so because it appeared to
16 us that Petitioner’s complaint was that without those findings, Respondent could argue
17 in the criminal case that she was the victim when the commissioner had already found
18 that they were both aggressors and both victims. This appeared to us in the nature of
19 a res judicata argument. We simply pointed out that such findings could not be used
4
1 to prohibit a criminal prosecution based on the same facts and circumstances. We are
2 simply stating that if this is the reason that Petitioner wants the findings entered, it is
3 not persuasive.
4 Finally, Petitioner argues that the district court was biased because of actions
5 that he contends evened the playing field. [MIO 13] Petitioner has cited us no
6 authority in support of his contention that the district court was biased because it took
7 actions perceived by one party to equalize the parties’ positions. As we pointed out
8 in our notice, simply because a district court rules against a party does not mean that
9 it is biased. State v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326 (1993). Nor do
10 we believe that actions allowing the parties to cool down where it is clear they are
11 jockeying for position establishes bias.
12 For the reasons stated herein and the notice of proposed disposition, we affirm.
13 IT IS SO ORDERED.
14 _______________________________
15 TIMOTHY L. GARCIA, Judge
16 WE CONCUR:
17
18 CELIA FOY CASTILLO, Chief Judge
5
1
2 JONATHAN B. SUTIN, Judge
6
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33 So.3d 652 (2008)
DONESKY ANTONIO BROWN
v.
STATE.
No. CR-07-0764.
Court of Criminal Appeals of Alabama.
December 5, 2008.
Decision of the Alabama Court of Criminal Appeal Without Published Opinion Rehearing denied.
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521 F.3d 1366 (2008)
NUFARM AMERICA'S, INC., Plaintiff-Appellant,
v.
UNITED STATES, Defendant-Appellee.
No. 2007-1220.
United States Court of Appeals, Federal Circuit.
April 7, 2008.
*1367 Joel R. Junker, Joel R. Junker & Associates, of Seattle, Washington, argued for plaintiff-appellant. With him on the brief was William N. Baldwin.
Todd Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Jeanne E. Davidson, Director, of Washington, DC; and Barbara S. Williams, Attorney in Charge, International Trade Field Office, of New York, New York. Of counsel on the brief was Beth C. Brotman, Office of the Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of New York, New York.
Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit Judge.
RADER, Circuit Judge.
On summary judgment, the United States Court of International Trade held that 19 C.F.R. § 181.53 does not violate Article I, Section 9, Clause 5 of the United States Constitution ("the Export Clause"). Nufarm America's, Inc. v. United States, 477 F.Supp.2d 1290 (CIT 2007) ("Nufarm II"). The trial court also denied Nufarm America's, Inc.'s, ("Nufarm's") motion for class certification under USCIT Rule 23(c). Nufarm America's, Inc. v. United States, 398 F.Supp.2d 1338 (CIT 2005) ("Nufarm I"). Because 19 C.F.R. § 181.53 does not violate the Export Clause and the class certification issue is moot, this court affirms.
I
Nufarm imported chemical products into the United States from Australia and the Netherlands. The products entered under Harmonized Tariff Schedule ("HTSUS") Subheading 9813.00.05, which defers the import duty on goods imported for repair, alteration, or processing until the goods are exported. Nufarm processed the imported chemicals into herbicides and then exported that product to Canada. At the time of export, the United States Customs Service assessed a deferred duty on the goods under 19 C.F.R. § 181.53.
Nufarm protested that 19 C.F.R. § 181.53 violates the Export Clause of the Constitution. On August 9, 2001, Customs denied the protest explaining that the regulation imposes liability for the duty at the time of importation and not exportation. Customs explained that 19 C.F.R. § 181.53 *1368 simply defers payment of the duty on some goods until a later export without transforming the import duty into an export duty.
II
As a threshold matter, this court declines to entertain any challenges raised for the first time on appeal regarding Article 303 of the North American Free Trade Agreement ("NAFTA") and its implementing statute U.S., Note 1(c), chapter 98, subchapter XIII, HTSUS ("U.S. Note 1(c)"). Because the Court of International Trade has not received the opportunity to consider and decide any questions involving NAFTA and U.S. Note 1(c), those issues are not ripe for appeal. Henke v. United States, 60 F.3d 795, 802 (Fed.Cir. 1995) (Rader, J., dissenting) ("Courts of appeal generally will not entertain arguments or consider issues raised for the first time in appeal. This court only does so in rare cases to avoid injustice."). Accordingly, this court devotes its attention solely to the constitutionality of the deferred duty regulation and refers to U.S. Note 1(c) only to provide context for its implementing regulation, 19 C.F.R. § 181.53.
When the Court of International Trade grants summary judgment, this court reviews that decision "for correctness as a matter of law, deciding de novo the proper interpretation of the governing statute and regulations as well as whether genuine issues of material fact exist." Texaco Marine Servs., Inc. v. United States, 44 F.3d 1539, 1543 (Fed.Cir.1994) (quoting St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 767 (Fed.Cir. 1993)). This court must also interpret and enforce the provisions of the Constitution without any deference for the trial court decision.
The Export Clause of the United States Constitution provides: "No Tax or Duty shall be laid on articles exported from any State." U.S. Const, art. I, § 9, cl. 5. The United States Supreme Court has recently interpreted this clause to bar a "tax" for harbor maintenance on exports, United States v. U.S. Shoe Corp., 523 U.S. 360, 118 S.Ct. 1290, 140 L.Ed.2d 453 (1998) (holding that the Harbor Maintenance Tax ("HMT") is an impermissible tax on exports and does not qualify as a permissible user fee), and to bar a tax on export transit goods. United States v. IBM Corp., 517 U.S. 843, 845, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996) (holding that the United States Constitution does not permit the imposition of a generally applicable, nondiscriminatory federal tax on goods in export transit). Reading these cases broadly, Nufarm contends that 19 C.F.R. § 181.53 also violates the Export Clause both on its face and as applied. On its face, 19 C.F.R. § 181.53 expressly refers to a duty on imports, not exports:
Where a good is imported into the United States pursuant to a duty-deferral program and is subsequently withdrawn from the duty-deferral program for exportation to Canada or Mexico or is used as a material in the production of another good that is subsequently withdrawn from the duty-deferral program for exportation to Canada or Mexico, and provided that the good is a "good subject to NAFTA drawback" within the meaning of 19 U.S.C. § 3333 and is not described in § 181.45 of this part, the documentation required to be filed under this section in connection with the exportation of the good shall, for purposes of this chapter, constitute an entry or withdrawal for consumption and the exported good shall be subject to duty which shall be assessed in accordance with paragraph (b) of this section.
19 C.F.R. § 181.53(a)(2)(i)(A) (emphases added). Thus, the regulation begins with reference to "a good imported into the *1369 United States." The terms "exportation" or "exported good" are each, in turn, merely references back to the imported good.
Sub-section (b), referenced in the last line of the provision above, states:
Except in the case of a good imported from Canada or Mexico for repair or alteration, where a good, regardless of its origin, was imported temporarily free of duty for repair, alteration or processing (subheading 9813.00.05, Harmonized `Tariff Schedule of the United States) and is subsequently exported to Canada or Mexico, duty shall be assessed on the good on the basis of its condition at the time of its importation into the United States. Such duty shall be paid no later than 60 calendar days after either the date of exportation or the date of entry into a duty-deferral program of Canada or Mexico, except that, upon filing of a proper claim under paragraph (a)(3) of this section, the duty shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the good under this section or the total amount of customs duties paid to Canada or Mexico.
19 C.F.R. § 181.53(b)(5) (emphasis added). This subsection assesses the duty on the import based on its condition at the time of importation, thus further distinguishing this fee from an export tax or duty.
The Court of International Trade accurately determined that the regulation imposes an import duty, but' postpones its collection until the time of export: "The language in the challenged regulation clearly requires that the duties in question are to apply to the goods as a result of their status as imports, not as exports." Nufarm II at 1295.
This court appreciates that an isolated clause from 19 C.F.R. § 181.53(a)(2)(i)(A) states that "the exported good shall be subject to duty. . . ." Similarly, another isolated phrase observes that "where a good . . . was imported temporarily free of duty for repair, alteration or processing . . . and is subsequently exported to Canada or Mexico, duty shall be assessed on the good." (emphases added). Taken out of context, those passages suggest an impermissible tax or duty on exports. These excerpts, however, are merely isolated strands of the entire fabric of the regulation. When those strands are woven back into the fabric where they belong, the entire context shows that the regulation imposes a duty on imports, not exports. The opening phrase of the regulation refers to the "imported" good. All later "exported goods" passages are merely references, in different terms, to the imported goods.
Moreover the phrase "the exported good shall be subject to duty" reads in context "the exported good shall be subject to duty which shall be assessed in accordance with paragraph (b) of this section." 19 C.F.R. § 181.53(a)(2)(i)(A) (emphasis added). The reference to paragraph (b), as noted earlier, assesses the duty on the good as an import and in the condition of the good at the time of import, even though the regulation defers collection until the time of export.
Thus, the entire regulation, read in context, refers to a duty on imports deferred until the time of export. The duty, however, is a tax on imports, not exports. Consequently, the regulation is not unconstitutional on its face.
The language of U.S. Note 1(c) the basis for the regulation in the first place also shows that the duty falls on imports. As mentioned before, the provision under which Nufarm's chemicals were entered, Subheading 9813.00.05 HTSUS, provides for a temporary duty-free entry for repair, alteration, or processing. U.S. Note 1(c) describes the operation of this temporary deferral:
*1370 For purposes of this subchapter, if an article imported into the United States, for processing, under heading 9813.00.05 is withdrawn for exportation to the territory of Canada or of Mexico, the duty assessed shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the article that would have been payable on importation under chapters 1 through 97, inclusive, of the Harmonized Tariff Schedule of the United States or the total amount of customs duties paid to Canada or to Mexico on the exported article, unless such article is covered by section 203(a)(1) through 203(a)(8), inclusive, of the NAFTA Implementation Act . . .
U.S. Note 1(c), chapter 98, subchapter XIII, HTSUS (emphasis added). This language attaches the duty to "an article imported into the United States" and assesses an amount, on the basis, in part, of the amount "payable on importation."
This court also perceives no merit in the challenge to the constitutionality of the regulation as applied. This court is aware that the obligation to pay the duty only arises upon export to a NAFTA country, but the timing does not convert the import duty into a tax on exports. The liability to pay this, duty arises under HTSUS Subheading 9813.00.05 upon import. To case correct assessment, the regulation merely postpones collection of the import duty until the time of export. An imported product destined for a NAFTA country receives a different assessment that an imported product destined for a non-NAFTA country. Depending on the ultimate destination of an import, the duty assessment could even be zero. Therefore, the regulation effects a deferral to ensure proper calculation of duty rates. None of this transforms the import duty into an export duty. Indeed, in all circumstances the liability to pay a duty attaches at import. The regulation imposes a duty on imports but defers calculation and collection of the exact amount of the vested liability.
In Ammex, Inc. v. United States, this court analyzed the terms imposed and assessed. 419 F.3d 1342 (Fed.Cir.2005). Assessment was found to refer to a recordation of the calculated amount of liability, while imposition was found to be the creation, but not calculation of, a liability. See id. at 1345 ("While assessment determines the specific amount of liability, imposition is simply a statement that liability exists."). Applying these definitions to the situation at hand, 19 C.F.R. § 181.53 imposes liability upon import while postponing the assessment of the amount of the previously imposed importation duty.
The express due date of the duty payment in 19 C.F.R. § 181.53, 60 days after export, also does not operate to make the regulation unconstitutional as applied. The regulatory language that ties the due date to export does not convert the import duty into an export tax. This timing clause operates to set a time for the accrual and computation of interest. Once again, this procedure does not change the imposition of liability at importation.
Likewise, the requirement to list a date of export on the Customs Entry Summary does not convert this import duty into an export tax. This filing information sets the 60-day deadline in motion. Neither this procedure nor the use of bonds to secure payment indicates that the duty is on exports. In sum, this court detects no error in the trial court's determination that the regulation does not place an unconstitutional tax on exports.
III
Nufarm also appeals the trial court's denial, of class certification. Nufarm I. The class would consist of all individuals who paid duties pursuant to 19 C.F.R. *1371 § 181.53 (duty deferral programs). The Court of International Trade held that because 28 U.S.C. § 1581(a) was manifestly adequate, 28 U.S.C. § 1581(i), which covers residual jurisdiction, was unavailable. This court's decision upholding the constitutionality of 19 C.F.R. § 181.53 renders the issue of class certification moot. Even if this court were to allow other members into the class, their arguments regarding the constitutionality of the regulation would fail. Consequently, the appear of Nufarm I is dismissed as moot.
IV
In sum, because the trial court did not err in its decision regarding the constitutionality of 19 C.F.R. § 181.53, this court affirms.
AFFIRMED
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544 U.S. 919
IN RE WHEELER.
No. 04-8807.
Supreme Court of United States.
March 21, 2005.
1
Petitions for writs of habeas corpus denied.
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334 S.E.2d 391 (1985)
314 N.C. 528
PENN COMPRESSION MOULDING, INC.
v.
MAR-BAL, INC.
No. 184A85.
Supreme Court of North Carolina.
October 1, 1985.
Mast, Tew, Armstrong & Morris, P.A. by L. Lamar Armstrong, Jr. and George B. Mast, Smithfield, for plaintiff-appellant.
Narron, O'Hale, Whittington & Woodruff, P.A. by Gordon C. Woodruff and John P. O'Hale, Smithfield, for defendant-appellee.
PER CURIAM.
This was an action to recover commissions allegedly due plaintiff as a result of a contract between plaintiff and defendant. The facts of this case are fully and accurately set forth in the opinion of the Court of Appeals and need not be repeated herein.
After reviewing the records and briefs and hearing the oral argument question presented by this appeal, we conclude that the majority opinion of the Court of Appeals is correct and should be affirmed.
AFFIRMED.
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476 S.E.2d 105 (1996)
344 N.C. 625
NORTH CAROLINA DEPARTMENT OF CORRECTION
v.
Janice HARDING.
No. 491PA95.
Supreme Court of North Carolina.
October 11, 1996.
Michael F. Easley, Attorney General by Valerie L. Bateman, Assistant Attorney General, for plaintiff-appellant and -appellee.
*106 Marvin Schiller, Raleigh, for defendant-appellant and appellee.
PER CURIAM.
AFFIRMED.
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778 F.2d 1318
39 Fair Empl.Prac.Cas. 970, 83 A.L.R.Fed. 243,39 Empl. Prac. Dec. P 35,812, 54 USLW 2336
Thomas O. BIBBS, Jr., Appellant,v.John BLOCK, Secretary, United States Department ofAgriculture, Appellee.
No. 83-1942.
United States Court of Appeals,Eighth Circuit.
Submitted April 29, 1985.Decided Dec. 11, 1985.
Karon D. Ramsey, Kansas City, Mo., for appellant.
Carolyn Kuhl, Washington, D.C., for appellee.
Before LAY, Chief Judge, and HEANEY, BRIGHT*, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges, en banc.
ARNOLD, Circuit Judge.
1
This is a Title VII case in which the plaintiff, an employee of the United States Department of Agriculture, claims that he was denied a promotion because of his race.1 The District Court2 found "that racial considerations probably did play a minor role in the selection process, ... but that plaintiff would not have been selected for the position even if his race had been disregarded." Bibbs v. Block, No. 81-0227-CV-W-6, slip op. 7 (W.D.Mo. June 14, 1983). It added that "race was not a determining factor in the decision to promote [another employee] rather than plaintiff." Id. at 10. Judgment was entered in favor of defendant.
2
On appeal, a panel of this Court reversed. Bibbs v. Block, 749 F.2d 508 (8th Cir.1984). Pointing to the District Court's finding that "race was a discernible factor at the time of the decision," Bibbs v. Block, supra, slip op. 10, the panel took the view that the additional finding that "the same decision would have been made absent racial considerations" was "inherently inconsistent." 749 F.2d at 512. It vacated the judgment for defendant and remanded to the District Court "to enter a judgment in favor of plaintiff and to consider the necessary remedy to make plaintiff whole." Id. at 513.
3
The defendant petitioned for rehearing. He asked that the panel modify its opinion to make clear that any relief ordered on remand could not include retroactive promotion and back pay at the higher level plaintiff had unsuccessfully sought. Such relief, defendant argued, could not be appropriate where the trier of fact had found that plaintiff would not have been promoted in any event. In the alternative, defendant asked for rehearing en banc. We granted the petition for rehearing en banc, thus automatically vacating the panel opinion. After oral argument, we now hold that plaintiff, having shown that race was a discernible factor at the time of the decision not to promote him, has established a violation of Title VII. The cause will be remanded for a determination of appropriate relief. As to retroactive promotion and back pay, the District Court should make a new finding, this time placing the burden of persuasion on defendant. If the court finds that defendant has shown by a preponderance of the evidence that plaintiff would not have been promoted in any event, retroactive promotion and back pay may not be ordered.
I.
4
Bibbs, who is black, is employed by the Agricultural Stabilization and Conservation Service (ASCS), a division of the Department of Agriculture. In September 1976, Bibbs applied for, but was denied, a promotion to a supervisory position in the ASCS print shop. Bibbs was one of seven individuals who applied for the position; he was the only black applicant. All seven applications were forwarded to a selection committee comprised of three individuals, all of whom were white. The committee was dominated by one member, Joseph Tresnak, who was most familiar with the print shop and the print-shop employees. The District Court found that Tresnak was the "key figure" in making the selection. Tresnak's central role in the selection process is significant in light of the direct evidence of Tresnak's use of racial slurs. One witness testified Tresnak had characterized Bibbs as a "black militant," while another testified Tresnak referred to another print-shop employee who was black as "boy" and "nigger." After interviewing each of the seven candidates, the committee selected Dennis Laube, who was white, for the position. The three members of the committee, after conclusion of all the interviews and without having agreed on any criteria for selection, selected the same top three candidates and each chose them in the same order. They did not discuss their views of the relative merits of the candidates before, during, or after the interviews.
5
In determining that the decision not to promote Bibbs was not racially motivated, the trial court noted that the work force in the print shop was racially integrated.3 The trial court also found that Bibbs had a history of disciplinary and interpersonal problems and was not selected in part because he was difficult to work with and caused irritation among fellow workers. Given the diverse factors each of the members of the selection committee used, and the alleged absence of any discussion among them during the deliberation process, the trial court judged the selection committee members "not particularly credible, either in demeanor or in the substance of their testimony. * * * The committee members were extremely guarded in their responses to questions and were quite defensive in their positions on matters that might reflect negatively on their decision. The Court is skeptical that it has heard the complete story concerning the committee's deliberations." Slip op. 5. The trial court was particularly concerned about the committee members' lack of credibility given the subjective criteria considered by the committee. The trial court observed that a subjective procedure may provide a "convenient screen for discriminatory decision making, and must be carefully scrutinized." Id. at 4.
6
After considering the evidence, the District Court made two factual findings. First, the court determined that race was a factor in the "selection process." Id. at 7. The court initially stated race played a "minor role in the selection process," ibid.; later, it stated race was a "discernible factor at the time of the decision." Id. at 10. Second, the court found that Bibbs "would not have been selected for the position even if his race had been disregarded," id. at 7. Thus, the court concluded race was not a "determining" factor or a "but for" factor, meaning a factor that ultimately made a difference in the decision, and that liability was therefore not established. It dismissed the complaint.
II.
7
In many Title VII cases, the proof proceeds on both sides on the premise that one motive only on the part of the employer--either an illegitimate one (e.g., race) or a legitimate one (e.g., ability to do the job)--has caused the adverse action of which the plaintiff complains. It is this type of case for which the familiar evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is designed. After the plaintiff establishes a prima facie case, and the defendant "articulates" (a verb that refers only to the burden of producing evidence) a legitimate, nondiscriminatory reason for the action complained of, the burden then shifts back to the plaintiff to persuade the trier of fact that the defendant's proffered reason was not the real one, but only a pretext hiding an impermissible racial motivation. Typically, the plaintiff will contend that one reason--race--was operative, the defendant will contend that another single reason--ability to do the job--motivated it, and the trier of fact will find one reason or the other (but not a combination) to be the true one. In such a case, the issues of motivation and causation are not distinctly separated, nor do they need to be. If the plaintiff shows the defendant's proffered reason to be a pretext for race, the case is over. Liability is established, and reinstatement is ordered (in a discharge case) absent extraordinary circumstances. The very showing that the defendant's asserted reason was a pretext for race is also a demonstration that but for his race plaintiff would have gotten the job. That is what pretext means: a reason for the employment decision that is not the true reason.
8
If the District Court in the case before us had found that defendant's reason or reasons for not promoting plaintiff were other than race, and that race played no part in the decisionmaking process, we should be required simply to affirm the dismissal of the complaint--assuming the finding was not clearly erroneous. But the court here conducted a more sensitive analysis of the various factors at work. It found that race was "a discernible factor," although not a but-for factor. It found, in other words, mixed motives.4 In this situation, we believe analysis is aided best by separating the issues of liability and remedy. The District Court itself, citing Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292 (1982), suggested such an approach, but decided, in view of its "novelty," to leave to us whether to pursue it. Slip op. 10 n. 5.
9
We accept the invitation. In doing so, we use as a factual predicate the District Court's findings of fact, which are not clearly erroneous. We look first to the statute. Section 703(a), 42 U.S.C. Sec. 2000e-2(a) (1982), describes what conduct is unlawful:
Employer practices
10
It shall be an unlawful employment practice for an employer--
11
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
12
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
13
(Emphasis added.)
14
As always, the words of the Congress are the best indications of its intention. It is not only failing to hire someone, or discharging him or her, because of race or sex, that is unlawful. The statute also forbids employers "otherwise to discriminate ... with respect to compensation, terms, conditions, or privileges of employment, because of ... race," Sec. 703(a)(1), and makes it unlawful for employers "to limit ... or classify ... employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect" him or her because of race. Section 703(a)(2). To put it in terms of the present case, it would be unlawful for defendant to put Bibbs at a disadvantage in the competition for promotion because of his race, as well as actually to deny him the promotion for this reason. (Indeed, if an employer requires black employees to meet a higher standard, the statute is violated even if they actually meet it and get the jobs in question.) Every kind of disadvantage resulting from racial prejudice in the employment setting is outlawed. Forcing Bibbs to be considered for promotion in a process in which race plays a discernible part is itself a violation of law, regardless of the outcome of the process. At the very least, such a process "tend[s] to deprive" him of an "employment opportunit[y]." Section 703(a)(2).
15
It does not follow, though, that retroactive promotion is an appropriate remedy. Unless the impermissible racial motivation was a but-for cause of Bibbs's losing the promotion, to place him in the job now would award him a windfall. He would be more than made whole. He would get a job that he would never have received whatever his race. At this point, we think, another provision of the statute, Section 706(g), 42 U.S.C. Sec. 2000e-5(g) (1982), becomes important:
16
(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees with or without back pay * * *, or any other equitable relief as the court deems appropriate. * * * No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement, or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title.
17
(Emphasis added.)
18
Thus, the language of Title VII supports the separation of liability and remedy and allows an award of reinstatement or promotion and back pay only after a finding that discrimination was the but-for cause of the employment decision. After defining unlawful employment practices of an employer in Subsection 703(a) of the statute, Congress set forth the conditions on which courts may grant injunctive and affirmative relief. By the terms of the statute, injunctive relief may be awarded after a finding of intentional discrimination; and affirmative relief such as reinstatement and back pay may not be awarded if the employment decision was "for any reason other than discrimination." The "but-for" determination required for an award of affirmative relief is consistent with Title VII's intended purpose of making persons whole for injuries suffered on account of unlawful employment discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975). Focusing on Subsection 706(g) of the statute, the Supreme Court recently reaffirmed the principle of make-whole relief, stating that competitive seniority can be awarded only to actual victims of discrimination. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 2589, 81 L.Ed.2d 483 (1984).
19
The Supreme Court has not expressly addressed the mixed-motives problem in a Title VII case, but it has focused on it in other contexts. For example, in the context of legislative and administrative decision making, the Court has considered whether a decision motivated by both lawful and unlawful considerations violated the Equal Protection Clause. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450 (1977) ("When there is proof that a discriminatory purpose has been a motivating factor in the decision, * * * judicial deference [to the legislative/administrative decision] is no longer justified.") (emphasis added). The Court established the so-called same-decision test to review such decisions:
20
Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision.
21
Id. at 270 n. 21, 97 S.Ct. at 566 n. 21. The Court also adopted the same-decision test for First Amendment retaliatory-discharge cases in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), decided the same day as Arlington Heights. See also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979). The Court in Mt. Healthy articulated the proper standard of causation as follows:
22
Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a "substantial factor"--or, to put it in other words, that it was a "motivating factor" in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct.
23
429 U.S. at 287, 97 S.Ct. 568 at 576 (footnote omitted). See also NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (similar mixed-motives analysis used in unfair-labor-practice cases).
24
In the Mt. Healthy group of cases, of course, the Supreme Court's mixed-motives analysis is used to establish the defendant's liability in the first place, not simply to determine the appropriate remedy. If the defendant establishes that it would have made the same decision in the absence of the illegitimate factor, it wins the case, and the complaint is dismissed. Our reading of Title VII is significantly different. In that statute, Congress has made unlawful any kind of racial discrimination, not just discrimination that actually deprives someone of a job. A defendant's showing that the plaintiff would not have gotten the job anyway does not extinguish liability. It simply excludes the remedy of retroactive promotion or reinstatement. In adopting this mode of analysis, we employ an approach similar to that used in King v. Trans-World Airlines, Inc., 738 F.2d 255, 259 (8th Cir.1984) (discrimination in interview process not cured by defendant's legitimate reasons for not hiring plaintiff), approved in Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 262 (8th Cir.1985). See also, e.g., Caviale v. Wisconsin Department of Health and Social Services, 744 F.2d 1289, 1295-96 (7th Cir.1984); Fadhl v. San Francisco, 741 F.2d 1163, 1166-67 (9th Cir.1984); Pollard v. Grinstead, 741 F.2d 73, 75 (4th Cir.1984); Smallwood v. United Air Lines, Inc., 728 F.2d 614, 620 (4th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984); Toney v. Block, 705 F.2d 1364, 1370 (D.C.Cir.1983) (Tamm, J., concurring); Milton v. Weinberger, 696 F.2d 94, 98-99 (D.C.Cir.1982); Harbison v. Goldschmidt, 693 F.2d 115, 116-17 (10th Cir.1982); Nanty v. Barrows Co., 660 F.2d 1327, 1333 (9th Cir.1981); League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 558 (9th Cir.1981); Richerson v. Jones, 551 F.2d 918, 923-25 (3d Cir.1977); Day v. Mathews, 530 F.2d 1083, 1085 (D.C.Cir.1976) (per curiam); see generally Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social-Policy Perspective, 82 Colum.L.Rev. 292 (1982). Under this approach, once the plaintiff has established a violation of Title VII by proving that an unlawful motive played some part in the employment decision or decisional process, the plaintiff is entitled to some relief, including, as appropriate, a declaratory judgment, partial attorney's fees, and injunctive relief against future or continued discrimination. However, even after a finding of unlawful discrimination is made, the defendant is allowed a further defense in order to limit the relief. The defendant may avoid an award of reinstatement or promotion and back pay if it can prove by a preponderance of the evidence5 that the plaintiff would not have been hired or promoted even in the absence of the proven discrimination.
25
This same-decision test will apply only to determine the appropriate remedy and only after plaintiff proves he or she was a victim of unlawful discrimination in some respect. Toney, 705 F.2d at 1370 (Tamm, J., concurring) (footnote omitted) ("It has no relevance to the liability phase of a Title VII suit."). For that reason, the burden of production and persuasion shifts from the plaintiff to the defendant. King, 738 F.2d at 259 ("The burden of showing that proven discrimination did not cause a plaintiff's rejection is properly placed on the defendant-employer because its unlawful acts have made it difficult to determine what would have transpired if all parties had acted properly.") (quoting League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 559 (9th Cir.1981)).
26
In the instant case, Bibbs has proved race was a discernible factor in the decision not to promote him. We hold such proof is sufficient in a mixed-motive context to establish intentional discrimination and liability under Title VII. We therefore vacate the judgment dismissing the complaint and remand for the entry of a declaratory judgment in favor of Bibbs and an injunction prohibiting the ASCS from future or continued discrimination against Bibbs on the basis of race. In addition, the District Court should consider Bibbs a prevailing party for the purpose of an award of attorney's fees. See 42 U.S.C. Sec. 2000e-5(k); King, 738 F.2d at 259; Nanty v. Barrows Co. 660 F.2d 1327, 1334 n. 10 (9th Cir.1981). Of course, in determining a reasonable fee, an adjustment based on the extent to which Bibbs has succeeded will be appropriate. See Hensley v. Eckerhart, 461 U.S. 424, 435-36, 103 S.Ct. 1933, 1940-41, 76 L.Ed.2d 40 (1983) (applying 42 U.S.C. Sec. 1988). Nevertheless, we emphasize that "by proving unlawful discrimination, appellant prevailed on a significant issue in the litigation," King, 738 F.2d at 259, and thereby vindicated a major purpose of Title VII, the rooting out and deterrence of job discrimination.
III.
27
On this rehearing en banc the government did not challenge the panel's holding that defendant is liable. Instead, it challenged the scope of relief available when there has been no finding that discrimination was the "but-for" cause of the denial of promotion. Because we agree that a but-for or same-decision finding must be made before affirmative relief such as retroactive promotion and back pay may be awarded, we remand the case for further analysis of the remedy issue. As stated above, the District Court must consider whether Bibbs would have received the promotion but for the discrimination in the selection process. While the trial court's statement that "[i]t cannot be concluded that plaintiff would have been selected by a committee free of racial considerations" would satisfy the same-decision standard, the trial court apparently placed the burden on Bibbs to show why he was denied the promotion. We reiterate that to avoid an award of retroactive promotion and back pay, the defendant must prove by a preponderance of evidence that Bibbs would not have received the promotion even if race had not been considered.
28
Vacated and remanded with instructions.
29
LAY, Chief Judge, with whom HEANEY and McMILLIAN, Circuit Judges, join, concurring.
30
I concur in Judge Arnold's well-written opinion.
31
I write separately for two reasons: (1) to voice my disagreement with the dissent and (2) to state specially, although I fully join Judge Arnold's opinion, that I seriously question the propriety of applying the "same decision" test to "mixed motive" cases in a Title VII context.1
32
In its petition for a rehearing en banc, the government did not dispute the finding of liability in the panel opinion and moved only to have this court adopt the "same decision" test for determining a remedy on remand. The liability issue was not argued by the respective parties nor was it considered by the court en banc. The dissent now, without discussion of the factual testimony, finds no liability at all and affirms the district court outright.
33
The original panel opinion, Bibbs v. Block, 749 F.2d 508 (8th Cir.1984) (Lay, C.J., and Fairchild & McMillian, JJ.) reviewed the factual findings of the district court and held that the district court's finding that race was not a "determining factor" in the employment decision was clearly erroneous and not supported by the record. The record reveals that Tresnak, who was shown to be racially biased, was the key figure in the promotion decision. The district court found that the selection committee lacked credibility in their testimony regarding the process of selection and that the selection process was suspect due to its subjective nature.
34
The dissent misreads Judge Arnold's opinion as establishing a new test, that of "discernible factor." The district court simply used the word "discernible" as an adjective to describe a racial factor which the court was able to "make out, * * * detect, * * * recognize, or identify as separate and distinct."2 The majority opinion does not substitute the phrase "discernible factor" as a test to replace causation. Judge Arnold's analysis of the record, ante at 1323-1324, finds that:
35
[O]nce the plaintiff has established a violation of Title VII by proving that an unlawful motive played some part in the employment decision or decisional process, the plaintiff is entitled to some relief, including, as appropriate, a declaratory judgment, partial attorney's fees, and injunctive relief against future or continued discrimination. However, even after a finding of unlawful discrimination is made, the defendant is allowed a further defense in order to limit the relief. The defendant may avoid an award of reinstatement or promotion and back pay if it can prove by a preponderance of the evidence that the plaintiff would not have been hired or promoted even in the absence of the proven discrimination.
36
This language does not establish a new test,3 but simply restates the test in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), in a different way.
37
In the dissent's focus on the word "discernible" it overlooks the fact that there are many ways to say the same thing. It also ignores the fact that the district court improperly quantified the employer's intent to discriminate when it found that although race was a discernible factor it was only a "minor" factor in the employment decision. The Supreme Court has expressly held that it is improper to quantify discriminatory intent. As the Supreme Court stated in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 277, 99 S.Ct. 2282, 2295, 60 L.Ed.2d 870 (1979): "Discriminatory intent is simply not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not."4
38
The dissent's outright affirmance of the district court also fails to mention the fact that the district court, in using the same decision test, improperly placed the burden of proof onto the plaintiff to show that the same decision would not have been made absent race. Even under the principles articulated in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), this is clear error. The plaintiff here is asked to establish much more than "but for" causation--he is improperly required to prove that race was the sole cause.
The same decision test
39
I now address my view that the same decision test should not apply to mixed motive cases, even when the burden of proof is properly placed on the employer.
40
Title VII is designed to protect victims against invidious discrimination which in any way influences or motivates an employment decision. That the employer has other nondiscriminatory reasons which enter into the decision is irrelevant. It is clear under the relevant case law that racial discrimination need not be the "sole" cause motivating the employer. Race is either a factor in the employment decision or it is not.
41
There is precedent for use of the same decision test in employment discrimination cases where liability is based upon a class action or in a disparate impact context.5 But to extend such a test to cases of disparate treatment will provide hollow victories to most victims of racial discrimination and little real relief. Many litigants who successfully prove racial discrimination in the employment decision will now find that the spoils do not go to the victim but only to the victim's attorneys. Plaintiffs such as Bibbs will obtain attorneys' fees and perhaps injunctive or declaratory relief, but no award of back pay or reinstatement. After proving his or her case at the liability stage, to gain any other relief a plaintiff in an alleged mixed motive case will now face the additional uphill battle to rebut defendant's claim that the same decision would have been made absent race. Although Judge Arnold adopts the "but for" test for liability in McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976), the practical effect will be that before a plaintiff can recover damages in a Title VII case, he or she will have to convince the court that race was the sole cause. Surely Congress did not intend such a result.
42
Certain well-established principles should govern our review of the district court's decision. First, under the teaching of Burdine, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Second, as the district court acknowledged and as stated above, in a Title VII disparate treatment action a plaintiff need not prove that the sole reason for the employment decision was the discrimination but is required to show no more than that race was a "but for" cause. McDonald, 427 U.S. at 282 n. 10, 96 S.Ct. at 2580 n. 10. The district court, reciting the confusion of our own cases and those of other circuits,6 resolved the apparent dilemma by finding that "racial considerations probably did play a minor role in the selection process, through the influence of Tresnak, but that plaintiff would not have been selected for the position even if his race had been disregarded." On the surface, the "same decision" reasoning is attractive and would simply relegate to appellate review the issue of whether the district court's factual findings are clearly erroneous. However, when race is shown to have been a discernible factor in the employment decision, as the district court found below, I conclude that the same-decision test is inappropriate under the principles of Burdine. Here, plaintiff has done far more than put forth a prima facie case of discrimination. He has successfully proven that race was a discriminatory factor in his employer's refusal to promote him. Rather than requiring proof that race was a "substantial" as opposed to a "minor" factor in the decision, Title VII simply requires that a plaintiff prove his or her claim of unlawful discrimination by persuading the court that "a discriminatory reason more likely [than not] motivated the employer." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Nothing more is required of a plaintiff to establish liability under Title VII.
43
Once the trier of fact has found that race was a factor "in any way" influencing the decision, it is error to attempt to quantify race as a minor factor. See 42 U.S.C. Sec. 2000e-2(a)(2) (1970 ed. Supp. V). Under the factual record presented here, once race was found to be a discernible factor in or influencing the decision, the additional conclusion that it was a minor factor is irrelevant to the Title VII analysis.
44
When race is shown at the liability stage to have been a factor in the employment decision, the employer should not be able to exculpate its proven invidious discriminatory practices by having a second chance to show that racial considerations did not affect the decision's outcome. This clearly contradicts Congress' purpose in enacting Title VII. I find that the record supports a finding that race clearly influenced the decision. Under these circumstances, I would reject as irrelevant and clearly erroneous the district court's unnecessary finding that "plaintiff would not have been selected for the position even if race had been disregarded."
45
The language of Title VII plainly recognizes the broad purpose of eliminating consideration of race from employment decisions. "Title VII prohibits all discrimination in employment based upon race, sex, and national origin. 'The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and ... neutral employment and personnel decisions.' " Burdine, 450 U.S. at 259, 101 S.Ct. at 1096 (emphasis added) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)). As Justice Marshall has stated:
46
[I]t is important to bear in mind that Title VII is a remedial statute designed to eradicate certain invidious employment practices. The evils against which it is aimed are defined broadly: "to fail ... to hire or to discharge ... or otherwise to discriminate ... with respect to ... compensation, terms, conditions, or privileges of employment [because of such individual's race]" and "to limit, segregate, or classify ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status [because of such individual's race]." 42 U.S.C. Sec. 2000e-2(a) (1970 ed., Supp. V) (emphasis deleted).
47
International Brotherhood of Teamsters, 431 U.S. at 381, 97 S.Ct. at 1878 (Marshall, J., concurring and dissenting).
48
Although proof of actual motivation would be within a defendant's knowledge, I find it highly inappropriate, under the Burdine principles governing Title VII cases, to adopt the Mt. Healthy rationale and shift the burden to the defendant to show that plaintiff would not have been promoted even if his race had not been considered. See also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); NLRB v. Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 150 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982) (NLRB adopts the Mt. Healthy test to determine liability in Sec. 8(a)(3) cases). Mt. Healthy exacts a distinctly different standard relating to recovery and burden of proof in constitutionally-protected conduct cases than does Burdine, which applied Title VII. A mixed motive case should be tried under the same tests set forth in McDonald and Burdine. To hold otherwise is to inject total confusion into the already difficult process faced by litigants who pursue relief under Title VII.7
49
BRIGHT, Senior Circuit Judge, separately concurring.
50
I concur in Judge Arnold's opinion. I write separately to indicate that I do not join the separate concurrences of Chief Judge Lay and Judge McMillian, and to emphasize my view that liability in this case rests upon the district court's finding of a causal relationship between race discrimination and the employment decision; that is, that race discrimination played a role, albeit a minor one, in selecting the person to be promoted.
51
In my opinion, the existence of some racial prejudice in the workplace that does not affect the employment decision will not support a determination of liability against an employer, where the discrimination and the decision are not shown to be causally connected.
52
Finally, I express disagreement with the suggestion in Chief Judge Lay's opinion that the "same decision test" should be rejected in mixed motive cases--"same decision" meaning that the employer would have made the same employment decision regardless of racial factors which might have entered into the hiring or promotion decision.
53
A simple hypothetical will illustrate the logic of applying the same decision test. Assume a college seeks a new president. Five candidates, four Caucasians and one black constitute the finalists. All are qualified but one Caucasian possesses clearly superior talents. That person is selected, but during the selection process an individual on the committee states that he or she would not vote for a black person for president under any circumstances, and that bias is shown to have a minor impact on the decisionmaking process of the entire committee.1 The mixed motive analysis offered by Chief Judge Lay seems to suggest that the college would be forced to hire and give backpay to the black applicant who would not have been selected as college president under a completely racially neutral selection process.
54
Under Judge Arnold's opinion, which I join, the college could limit the remedy, avoiding backpay and having to hire the rejected applicant, by showing by a preponderance of the evidence that the black applicant would not have received the appointment in any event.
55
In his dissent, Judge Ross construes the majority's use of the term "discernible factor" as containing no causal requirement. I disagree. I believe that term denotes the existence of a causal relationship in some degree in the present case, as shown by the district court's finding that "race played a minor role in the decision not to promote the plaintiff * * *." (Dist.Ct. Order at p. 8).
56
Thus, with the above explanation of my views, I agree with Judge Arnold's opinion for the court which imposes liability on the employer but permits the defendant to restrict the remedy by proving by a preponderance of the evidence that Bibbs would not have been promoted even if his race had not been considered in the employment decision.
57
McMILLIAN, Circuit Judge, concurring.
58
I concur in the decision to remand this case to the district court to determine whether appellant would have received the promotion but for the employer's discrimination in the selection process.
59
I agree with most of the analysis set forth in the majority opinion. I agree that proof of unlawful discrimination requires only proof that race was "a discernible factor" in the employment decision, a finding which would ordinarily entitle the plaintiff to declaratory relief, partial attorney's fees and prospective injunctive relief, and that, following proof of unlawful discrimination, the burden of persuasion and the burden of producing evidence on the issue of the scope of available retroactive relief are properly shifted to the employer. "The burden of showing that proven discrimination did not cause a plaintiff's rejection is properly placed on the defendant-employer because its unlawful acts have made it difficult to determine what would have transpired if all parties had acted properly." League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 559 (9th Cir.1981), citing Day v. Mathews, 530 F.2d 1083, 1086 (D.C.Cir.1976) (per curiam).
60
However, I do not agree with the preponderance of the evidence standard of proof and would instead require the employer to prove by clear and convincing evidence that appellant would not have been promoted in the absence of discrimination. See, e.g., King v. Trans World Airlines, Inc., 738 F.2d 255, 259 (8th Cir.1984).
61
The requirement of clear and convincing proof ... furthers Title VII's deterrent purpose. By making it more difficult for employers to defeat successful plaintiffs' claims to retroactive relief, the higher standard of proof may well discourage unlawful conduct by employers. In addition, the higher standard of proof is justified by the consideration that the employer is a wrongdoer whose unlawful conduct has made it difficult for the plaintiff to show what would have occurred in the absence of that conduct.
62
Toney v. Block, 705 F.2d 1364, 1373 (D.C.Cir.1983) (Tamm, J., concurring) (citations omitted).
63
I would remand the case to the district court to determine whether the employer has shown by clear and convincing evidence that appellant would not have been promoted even in the absence of unlawful discrimination.
64
ROSS, Circuit Judge, with whom FAGG and BOWMAN, Circuit Judges, join, dissenting.
65
I dissent in part. I cannot agree with the majority's holding that proof that race was a "discernible factor" is sufficient in a mixed-motive context to establish intentional discrimination and liability under Title VII1. I adhere to the position that when the evidence suggests mixed-motives the plaintiff must prove that race was a "motivating factor" before he or she can prevail at the liability stage. See Womack v. Munson, 619 F.2d 1292, 1297 n. 7 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). Retention of this standard is warranted by the language of the statute, the case law and by practical considerations.
66
Title VII prohibits employment practices that discriminate against any individual "because of" such individual's race, color, religion, sex or national origin. Section 703(a), 42 U.S.C. Sec. 2000e-2(a) (1982), makes it unlawful for an employer--
67
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
68
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
69
(Emphasis added.) The "because of" language is crucial to employment discrimination suits brought under the statute and any adverse employment decision that is not arrived at "because of" one of the protected criteria is not unlawful under the statute. The majority, quite simply, ignores these operative words of the statute.
70
The "because of" requirement of the statute is not satisfied by the majority's "discernible factor" test2. While it is clear from the legislative history,3 that the "because of" language does not require that a plaintiff, such as Bibbs, prove that race is the sole factor in the employment decision, at a minimum, it means that a plaintiff must prove some causal relationship between race and the employment decision. The "discernible factor" test is deficient because it contains no causal requirement. Title VII is not violated simply because an impermissible factor plays some minor part in the employer's decision. See Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980). The Supreme Court has noted that to establish a violation of Title VII a plaintiff need only show that race was a "but for" cause. McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 2580 n. 10, 49 L.Ed.2d 493 (1976).
71
I object to the majority's "discernible factor" test for the additional reason that it dilutes the requirement that every Title VII plaintiff must prove intentional discrimination. In every employment discrimination case brought pursuant to Title VII, the theory of disparate treatment requires the aggrieved employee to prove that the employer acted with a discriminatory intent based on an impermissible factor. The ultimate factual inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983). The Title VII plaintiff bears the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff and that the plaintiff has been the victim of intentional discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-256, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). The presence of an illegal factor in the employment process, without more, does not in my opinion constitute intentional discrimination. The racial or discriminatory factor must be acted upon; it must be a basis for the employment decision, and not just perceived. As the Supreme Court has said, the plaintiff must demonstrate by competent evidence that whatever the stated reasons for his rejection, "the decision was in reality racially premised." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 n. 18, 93 S.Ct. 1817, 1825 n. 18, 36 L.Ed.2d 668 (1973) (emphasis added).
72
Because of the intentional discrimination requirement, the unlawful factor must be more than a "discernible factor"; it must be a "motivating factor". Proof of illegal motivation is critical to Title VII disparate treatment cases, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977), and a plaintiff can meet his or her burden of proof "by persuading the court that a discriminatory reason more likely motivated the employer * * *." Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095. Thus, a violation of Title VII is established when the plaintiff proves that the unlawful factor operated as a "motivating factor" in the employment process or decision4. By "motivating factor" is meant that the discriminatory purpose was acted upon and produced conduct or an employment decision affected by it.
73
This court applied a "motivating factor" approach prior to Burdine, supra. In Womack v. Munson, 619 F.2d 1292 (8th Cir.1980), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981), this court noted:
74
In cases challenging adverse employment actions as racially discriminatory under section 703(a), 42 U.S.C. Sec. 2000e-2(a), we have held the court must look for the "motivating factor" when the evidence suggests mixed motives. See, e.g., Marshall v. Kirkland, 602 F.2d 1282 (8th Cir.1979); Clark v. Mann, 562 F.2d 1104, 1116-17 (8th Cir.1977) (42 U.S.C. Sec. 1983 action. * * *
75
Id. at 1297 n. 7. Continued adherence to a "motivating factor" test is consistent with the language of the statute and current Supreme Court caselaw and I see no justification for reducing a Title VII plaintiff's burden to that of proving only that race was a "discernible factor."5
76
In addition to the legal considerations, I have concerns about the practical ramifications of the majority's holding that proof that race was a "discernible factor" is sufficient to establish liability in a Title VII mixed-motive case. First, the majority failed to define what it means by "discernible" and this omission will result in confusion for the district courts. Secondly, this holding is an open invitation to attorneys to file frivolous or extremely marginal cases so that they can get attorneys' fees for showing that an unlawful factor was "discernible."
77
It is for all of the above reasons that I cannot join the majority's adoption of a "discernible factor" test for Title VII mixed-motive cases. As for the disposition of the instant case, I would affirm the judgment of the district court6 and dismiss Bibbs' complaint because he failed to establish that race was a "motivating factor" in his nonselection for promotion.
78
A true copy.
*
Judge Bright became a Senior Circuit Judge on June 1, 1985
1
Plaintiff initially claimed age discrimination as well. The District Court found against this claim, and the panel to which this appeal was initially submitted affirmed that finding as not clearly erroneous. Bibbs v. Block, 749 F.2d 508, 509 (8th Cir.1984). This aspect of the case is not before the Court en banc
2
The Hon. Howard F. Sachs, United States District Judge for the Western District of Missouri
3
Such "bottom line" statistics do not insulate an employer from liability for intentional discrimination against an individual employee. See Connecticut v. Teal, 457 U.S. 440, 454, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (1982). But they are relevant evidence, to be considered along with all other factors
4
The District Court found that racial considerations were a discernible, though minor, factor in the selection process and in the decision of whom to promote, though not a determining factor in the "but for" sense. The court found that race was a motivating factor but that plaintiff had not shown that he would have received the job had race not been considered. In this situation, we think liability on the part of the defendant is established. The plaintiff, however, will actually be awarded the promotion (or comparable relief such as front pay or damages) only if defendant fails to show that it would have made the same decision absent consideration of the impermissible factor
5
Although several courts considering the weight of the employer's burden on the remedy question have imposed a "clear and convincing" proof requirement, see, e.g., Toney, 705 F.2d at 1373 (Tamm, J., concurring); Patterson v. Greenwood School District 50, 696 F.2d 293, 295; Ostroff v. Employment Exchange, Inc., 683 F.2d 302, 304 (9th Cir.1982), we recently rejected that higher standard of proof in Craik v. Minnesota State University Board, 731 F.2d 465, 470 n. 8 (8th Cir.1984) (Title VII class action alleging a pattern or practice of sex discrimination). But cf. King, 738 F.2d 255, 257 (8th Cir.1984). In Craik we stated: "The normal standard of proof in civil litigation is that of a preponderance of the evidence, and we do not believe that the public and private interests involved require altering that distribution of the risk of error between the litigants." 731 F.2d at 470 n. 8. We adhere to that view now. Cf. Herman & McLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 685, 74 L.Ed.2d 548 (recovery under Sec. 10(b) of the 1934 Securities Exchange Act, 15 U.S.C. Sec. 78j(b), requires preponderance rather than clear and convincing evidence)
1
Notwithstanding my disagreement with the same decision test, in order to provide a majority opinion and a clear test to follow in this circuit I join Judge Arnold's application of the same decision test
2
Webster's Third New International Dictionary (Unabridged) 644 (1981)
3
Judge Arnold's reasoning is similar to the approach of the Eleventh Circuit in Title VII disparate treatment cases where there is direct evidence proving that the defendant-employer acted with a discriminatory motive. See e.g., Joshi v. Florida State University Health Center, 763 F.2d 1227, 1236 (11th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 347, 88 L.Ed.2d 293 (1985) (defendants failed to meet burden to prove those ultimately employed were better qualified than plaintiff); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984) (absent finding that employer set aside own bias in hiring recommendations, court cannot conclude that employer met its burden to prove same decision would have been made absent discrimination)
4
See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977) ("Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated soley by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one.")
5
Cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359 n. 45, 97 S.Ct. 1843, 1867 n. 45, 52 L.Ed.2d 396 (1977). ("[T]he employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer's evaluation of the applicant's qualifications, the company's records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decision-making process.")
6
See Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1197 (8th Cir.1982), cert. denied, 460 U.S. 1080, 103 S.Ct. 1767, 76 L.Ed.2d 342 (1983) (determining factor); Nanty v. Barrows Co., 660 F.2d 1327, 1333 (9th Cir.1981) (same decision test at relief stage); Williams v. Boorstin, 663 F.2d 109, 117 (D.C.Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 842 (1981) (same decision test at liability stage); Satz v. ITT Financial Corp., 619 F.2d 738, 746 (8th Cir.1980) (a factor); Marshall v. Kirkland, 602 F.2d 1282, 1289 (8th Cir.1979) (motivating factor); Cleverly v. Western Electric Co., 594 F.2d 638, 641 (8th Cir.1979) (determining factor)
7
This discussion finds analogous aid in causation principles developed in tort law. In order to establish liability, a plaintiff does not have to show that the defendant's negligence (or here, racial discrimination) was the sole proximate cause of the accident. The burden is on the plaintiff only to show that the defendant's negligence was a proximate cause. In other words, the trier of fact must determine whether the defendant's negligence (discrimination) was a factor which served as a proximate cause of the accident (employment decision)
1
To make my position clear, I would add that the presence of racial bias by one member of the selection committee which does not on a causal basis enter into the employment decision of the committee will not impose liability on the employer
1
Since the majority's holding reverses the judgment of the district court on the issue of liability, the issue of liability is before the court en banc, notwithstanding Chief Judge Lay's suggestion to the contrary. In his concurring opinion, Chief Judge Lay implies that the issue of liability is not before the court en banc because "the government did not dispute the finding of liability in the panel opinion and moved only to have this court adopt the 'same decision' test for determining a remedy on remand." Ante at 1325. I take exception to this suggestion for a number of reasons. First, "the finding of liability in the panel opinion" has been vacated. As Judge Arnold points out, "[w]e granted the petition for rehearing en banc, thus automatically vacating the panel opinion." Ante at 1319. Second, although the government chose to focus on the "same decision" test when arguing to this court en banc, in its petition for rehearing en banc it posed no less than four "questions of exceptional importance" relating to "a new dramatically reduced burden of proof" on the issue of liability. Third, the order granting the petition for rehearing en banc in this case did not limit the scope of the en banc proceedings to the remedy issue alone. The power over en banc proceedings resides with the court and not with the litigants. See FED.R.APP.P. 35; Western Pacific Ry. Corp. v. Western Pacific Ry. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953). Lastly, the holding of the majority is more than just a decision on the remedy issue. It is a reversal of the judgment of the district court on the issue of liability and the dissent is not foreclosed from expressing its disagreement with the rationale of that result
2
The majority clearly establishes a new test. Judge Arnold writes, "we now hold that plaintiff, having shown that race was a discernible factor at the time of the decision not to promote him, has established a violation of Title VII." Ante at 1319-20
3
The Senate and the House both rejected an amendment which would have added the word solely to subsection (a) of section 2000e-2. 110 CONG.REC. 13,838 (1964); 110 CONG.REC. 2728 (1964)
4
The relevant inquiry is causation, not quantification
5
Even the author relied upon by the majority, Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292 (1982), takes the position that a plaintiff who establishes that a prohibited criterion was a motivating factor in the challenged decision thereby establishes a violation of the Act and thus the defendant's liability. Id. at 323 (emphasis added)
6
I agree with the majority's assessment that the district court's findings of fact are not clearly erroneous, ante at 1321
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128 Ill. App.3d 587 (1984)
470 N.E.2d 1180
REX H. LIGHT et al., Trustees, Plaintiffs and Counterdefendants-Appellants,
v.
CARL E. STEWARD et al., Defendants and Counterplaintiffs-Appellees.
No. 2-83-0831.
Illinois Appellate Court Second District.
Opinion filed October 30, 1984.
*588 Kenneth W. Traum, of Kostantacos, Traum, Reuterfors & McWilliams, and Milton A. Fischer, both of Rockford, for appellants.
John L. Olson, of Schleuter, Ecklund, Olson, Barrett & Moore, of Rockford, for appellees.
Judgment affirmed.
JUSTICE LINDBERG delivered the opinion of the court:
Plaintiffs brought this action in the circuit court of Winnebago County to enjoin defendants' use of plaintiffs' property. Defendants counterclaimed for an easement to use plaintiffs' property. The trial court found for defendants and declared an easement. We affirm.
Defendants, Carl and June Steward, own a tract of land in Winnebago County which is surrounded on three sides by the Pecatonica River. The only land access to their property is through the tract of land owned by plaintiffs, Rex and Sarah Light, which lies to the north of the Stewards' tract. On September 24, 1981, the Lights filed their complaint in the present action seeking to enjoin the Stewards from entering the Lights' land. The Stewards answered the complaint and filed a counterclaim seeking a declaration of an easement across the Lights' land and injunction against the Lights' interference with the Stewards' right of access, and money damages.
The bench trial was held on March 1, 1982. The evidence showed that the Lights acquired the northern tract in 1952. The Stewards acquired the southern tract in 1978 from the widow of Don Adams, who died in 1977. Adams acquired the southern tract in 1948. A public *589 road, Cleveland Road, ends at the northern boundary of the Lights' land. Don Adams and his guests frequently crossed the Lights' land in order to enter and exit the southern tract. The "way" or "lane" they used crossed over the Lights' driveway, through a gate, and over an unpaved path to the northern boundary of the southern tract. Adams and his guests used his land for recreational purposes, and a cottage was built on the property in 1961. The Lights have a residence on their land about 550 feet south of the terminus of Cleveland Road. The Lights raised livestock on their property.
The Stewards also used the lane to reach the southern tract, both as guests of Don Adams and later as owners of that tract. After the Stewards acquired their property, however, a dispute erupted between the parties over the Stewards' use of the lane, which resulted in the Lights' attempt to block access to the lane and their filing of this action. Further evidence regarding the use of the lane will be discussed in relation to the legal issues raised.
The trial court rendered an oral decision on March 5, 1982, declaring an easement in favor of the Stewards. A written order was filed on March 19, 1982, which left open the question of reasonable restrictions. An appeal to this court was dismissed for want of jurisdiction because the order was not final as to all issues. Eventually, on September 9, 1983, a final and appealable order was filed which incorporated by reference the court's order of March 19, 1982, and set forth certain restrictions for the easement declared.
EXCLUDED TESTIMONY
The Lights contend that the trial court erred in excluding the testimony of Chester Lynn and Warren Duclon relating to an oral agreement between Don Adams and Rex Light. Upon objection by the Stewards, the trial court permitted Lynn's testimony subject to a reserved ruling on its admissibility. The court sustained the Stewards' objection to Duclon's testimony but permitted examination as an offer of proof. Following that offer of proof, the court also excluded Lynn's testimony regarding the agreement.
The substance of the challenged evidence tended to show that Rex Light had agreed to permit Don Adams' use of the lane through Light's property in exchange for Adams' permitting Light to graze cattle on his land. Chester Lynn testified that he heard the conversation in the spring of 1952 between Light and Adams in which the agreement was created. Warren Duclon testified that in 1953 or 1954, on an occasion when Duclon went with Adams to Adams' property by way of the lane on the Lights' property, Adams told Duclon that he *590 had a verbal agreement permitting his use of the lane in exchange for permitting Light to graze his cattle on Adams' property.
The Stewards' objected to the testimony of both Lynn and Duclon on the bases of hearsay and the Dead Man's Act (Ill. Rev. Stat. 1981, ch. 51, par. 2). The Lights' response at trial was that the conversations constituted admissions against interest, an exception to the hearsay rule, and that the Dead Man's Act was applicable only to cases involving the executor or other representative of a deceased person. In striking Lynn's testimony, the trial court gave the following reasons:
" on the grounds that it's hearsay and not not that it's just hearsay. It's not it really makes no difference what agreement those two parties had. It's what was expressed, I think, and what was the agreement between what was made known to the present defendants in this case what was their understanding."
With regard to Duclon's testimony, the trial court simply sustained the Stewards' objection and denied the contention of the counsel for the Lights that the proffered evidence constituted an admission against interest.
On appeal, the Lights argue that the evidence is relevant to show that use of the lane had not been adverse. Further, the Lights argue that the testimony is not excludable because the Dead Man's Act does not apply, because the testimony is not hearsay as the out-of-court statements were not offered for their truth, and because three specific hearsay objections would be applicable in any event. The Stewards maintain that those of the arguments for admissibility not presented to the trial court cannot be urged for the first time on appeal.
1 The general rule for preserving for review a contention that testimony has been wrongfully excluded is that an offer of proof must be made. (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App.3d 401, 444 N.E.2d 220.) Here, an offer of proof was made for both witnesses. However, the Stewards contend that more is necessary: the party offering the excluded testimony must urge on appeal the same bases of admissibility that were presented to the trial court. At least two of the cases cited by the Stewards appear to support this rule of law (Crimp v. First Union Trust & Savings Bank (1933), 352 Ill. 93, 98; Dirksmeyer v. Barnes (1954), 2 Ill. App.2d 496, 508-09, 119 N.E.2d 813, 818), although in the latter case an offer of proof was also missing. Dirksmeyer relies upon the general proposition that a point not raised in the trial court cannot be urged on appeal. (Dirksmeyer v. Barnes (1954), 2 Ill. App.2d 496, 509, 119 N.E.2d 813, 818; *591 see Board of Education v. Kusper (1982), 92 Ill.2d 333, 343.) Thus, although the authority is scant, the offeror of excluded testimony is generally limited on appeal to those grounds for admissibility raised in the trial court. See 5 Am.Jur.2d Appeal and Error sec. 604 (1962).
The trial court's remarks in striking Lynn's testimony seem to indicate that that court did not deem the proffered testimony relevant. In order to acquire an easement by prescription, a claimant must show that the use of the land was, among other things, adverse. (Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647.) To meet the requirements of adverse use, the use must be with the knowledge and acquiescence of the owner but without his permission. (Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647.) If it can be shown that the use has been made pursuant to the permission of the owner of the servient estate, it cannot be classified as being adverse. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424.) Such permission may be established by a written or oral license or may be inferred from the surrounding circumstances. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424.) Where there is proof of a parol agreement to use a way, the use has been by license rather than adversely or by claim of right and a prescriptive right has not been established. See Mueller v. Keller (1960), 18 Ill.2d 334.
Here, evidence of an oral agreement between Rex Light and Don Adams for the use of the lane was relevant to disprove adversity in Adams' use of the lane. Since the Stewards have owned their land just since 1978, it was necessary for them to show adversity not only of their use, but also of their predecessor in title to the dominant estate, Don Adams. Thus, the proffered testimony was relevant to whether use of the lane had been adverse for 20 years.
2 The Stewards argued at trial and again on appeal that they have established an easement by prescription in their own right for 20 years as well as by tacking Adams' ownership years to their own. An acceptance of this argument might explain the trial court's remarks to the effect that only what the Stewards knew was relevant. However, this argument cannot succeed. The Stewards' pleadings asserted prescriptive use only by means of tacking their period of use to Adams'. Moreover, an easement of the nature of the one claimed here, where it is exercised in connection with occupancy of other land and where one terminus of the claimed easement is on the land of the party claiming it, is considered as appurtenant rather than one in gross. (Taylor v. Lanahan (1979), 73 Ill. App.3d 829, 392 N.E.2d 425.) Prior to 1978, the Stewards had no land to which the easement right may *592 have been appurtenant. The Stewards' use of the lane prior to their 1978 acquisition of the neighboring land was as guests of the Adamses. As such, that use could not satisfy the exclusivity element of a prescriptive easement. Exclusivity means that the claimant's rights do not depend upon the rights of others, such as the Adamses. (Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647.) Since prescriptive use for 20 years could not be shown in the Stewards alone, evidence relating to the nature of Don Adams' use was necessarily relevant to the question of whether a prescriptive easement had been established.
3 The issue of the inapplicability of the Dead Man's Act has not been waived by the Lights because it was raised at trial. The Dead Man's Act is very limited and is inapplicable to the testimony of Chester Lynn and Warren Duclon for several reasons. The reason raised at trial is sufficient to dispose of the issue here: the statute applies only to a "civil action in which any party sues or defends as the representative of a deceased or incompetent person." (Ill. Rev. Stat. 1981, ch. 51, par. 2.) Don Adams is the deceased person whose conversations are at issue and no party here either sues or defends as his representative.
4 With regard to hearsay, the Lights now urge for the first time that the testimony of Lynn and Duclon does not constitute hearsay evidence. Pursuant to the previous discussion, this argument was waived as not having been offered at the trial. Further, the other two hearsay exceptions now urged by the Lights to justify use of Lynn's and Duclon's testimony, declarations as to private boundaries and declarations by persons in possession of property, were clearly not raised in the trial court and therefore were waived. The trial court's exclusion orders are affirmed because the Lights failed to preserve the correct grounds for admissibility.
EASEMENT OF NECESSITY
The Lights contend that the trial court's order cannot be sustained on the basis of a finding of an easement by necessity. The Stewards' original counterclaim sought declaration of an easement on two grounds: easement of necessity by implication and easement by prescription. Their amended counterclaim, upon which the case was tried, relied solely upon the prescription theory. In its oral ruling of March 5, 1982, the trial court relied on both theories in finding an easement, as is manifested by the following excerpt:
"I I do feel that this has gone on it went on for a long enough period of time that they meet the requirements that *593 the defendants have met the requirements by tacking to gain an interest by prescription at least by prescription over the plaintiffs' property. His the plaintiffs' Complaint for Injunction is denied. The defendants' Counterclaim, Easement of Necessity although it's not really set forth that way in the in the Counterclaim itself it doesn't really say it's of necessity, but it is obvious from the evidence that it is of necessity is granted subject to reasonable restrictions."
The trial court's written orders of March 19, 1982, and September 9, 1983, make no reference to the theory relied upon. They do, however, declare an easement by way of entering judgment for the Stewards on count I of the amended counterclaim, a count which relies solely upon the prescription theory.
Actually, there is no "easement by necessity." An easement must be founded on a deed or other writing, or on prescription, which presumes a previous grant. (The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc. (1954), 4 Ill. App.2d 454, 124 N.E.2d 649.) Necessity is one element of an "easement of necessity by implication," a doctrine based upon implying the intent of the parties to a conveyance by which one parcel is separated from another to grant or reserve an easement. (See Frantz v. Collins (1961), 21 Ill.2d 446.) Essential elements which must exist to establish an easement by implication are: (1) there must be unity of ownership and separation of the title; (2) before separation occurs, the use which would give rise to an easement must have been so long continued, obvious or manifest to that degree which will show the use was meant to be permanent; and (3) it is necessary that the use of the claimed easement be essential to the beneficial enjoyment of the land granted or retained. O'Hara v. Chicago Title & Trust Co. (1983), 115 Ill. App.3d 309, 450 N.E.2d 1183.
5 Here, at least one essential element for this type of easement was neither pleaded nor proved: unity of ownership and separation of title. Proof as to the existence of a common grantor is generally considered necessary to establish this element. (Zacny v. Sasyk (1975), 30 Ill. App.3d 93, 332 N.E.2d 568.) No such evidence was introduced. Thus, whether or not the use of the lane was necessary for the Stewards' enjoyment of their land, they did not establish an easement of necessity by implication.
EASEMENT BY PRESCRIPTION
The Lights further contend that defendants have failed to establish an easement by prescription. In order to acquire an easement by *594 prescription, a claimant must show that the use of the land was adverse, exclusive, continuous and uninterrupted, and under claim of right for a period of at least 20 years. (Petersen v. Corrubia (1961), 21 Ill.2d 525; Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647.) Where there has been privity between the users of the property, periods of use may be tacked together in order to satisfy the required prescription period. (Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424.) At issue here were the elements of adversity and exclusivity and whether the Stewards needed to and did successfully tack the period of use by Don Adams to their own.
With regard to the necessity to the Stewards' case of tacking Don Adams' period of use to their own, this question has already been discussed in relation to the relevance of the proffered testimony of Chester Lynn and Warren Duclon. Since the Stewards could not establish prescriptive use for 20 years solely by themselves, they must rely upon Adams' use of the lane during his period of owning the southern tract.
6 In order to rely on Adams' period of use, defendants Stewards must have shown privity between themselves and Adams. The requisite of privity exists when the latter user has succeeded to the interest of the earlier user by inter vivos conveyance, by descent, by devise, or by involuntary conveyance. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424.) Privity was established here by the Lights' stipulation that Don Adams' property passed to his wife, Lillian Adams, upon the former's death in 1977 and by defendants' exhibit No. 12, a copy of the deed by which Lillian Adams conveyed the property to the Stewards.
7 With regard to the exclusivity factor, the Lights point out that many others besides Don Adams and the Stewards used the lane over the last few decades. However, as has been pointed out in relation to the Stewards' use during the period of Don Adams' ownership, the use of the lane by the others was as guests of the owners of the southern tract. To establish exclusivity, it is not necessary to show that only the claimant has made use of the way, because exclusive use means that the claimant's right to use the lane does not depend upon a like right in others. (Leesch v. Krause (1946), 393 Ill. 124; Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647.) The Stewards' use of the lane from 1978 and the Adamses' use prior to that were in their own right, independent from any other.
8 The most difficult question here relates to whether adversity was established. Whether there was adverse use of a way or the use *595 of the way was only permissive is a question of fact for the trial court which will not be disturbed unless manifestly against the weight of the evidence. (Petersen v. Corrubia (1961), 21 Ill.2d 525; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424.) To meet the requirements of adverse use, the use must be with the knowledge and acquiescence of the owner but without his permission. (Healy v. Roberts (1982), 109 Ill. App.3d 577, 440 N.E.2d 647.) Where the evidence shows that a use is merely permissive from the owner, the use is not adverse and furnishes no basis upon which a right of way by prescription can rest. Mueller v. Keller (1960), 18 Ill.2d 334; Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424; Rita Sales Corp. v. Bartlett (1970), 129 Ill. App.2d 45, 263 N.E.2d 356.
Here, the Lights maintained that Don Adams', and subsequently the Stewards', use was permissive because of an oral agreement under which Adams could use the lane for access in return for allowing the Lights to graze cattle. The Lights' attempt to prove the existence of this agreement through the testimony of Chester Lynn and Warren Duclon was disallowed by the trial court, and we have affirmed that exclusion. However, Rex Light also mentioned the agreement in his testimony. During his direct examination, Light was asked about a conversation with Carl Steward. Light testified that he had told Steward about his agreement with Don Adams under which Adams could use the lane in exchange for permitting Light's cattle to graze on Adams' land. Light had received the impression that Steward agreed to the same arrangement.
The Lights now attempt to characterize this testimony as a direct assertion by the witness of the existence of the agreement mentioned. However, a close reading of the record reveals that Light merely testified to what he told Steward. Nowhere does it appear that Light testified directly about his oral agreement with Don Adams.
Carl Steward, on the other hand, testified that Rex Light never told him about the previous agreement, that he himself had no agreement with Light about use of the lane, that he had never asked for permission to use the lane, that he was aware of no agreement, and that he was not aware of anyone ever asking permission. June Steward made similar denials. Francis Linder, Howard Black, and Polly Knous, three people who frequently used the lane as guests of Don Adams, each testified for the Stewards that he or she knew of no agreement or request for permission to use the lane by anyone.
It can be seen, then, that the evidence is conflicting on whether Rex Light and Carl Steward came to an agreement. The testimony of *596 each party is positive and directly contradictory of the other. In light of this, the trial court could have justifiably believed Steward and found that the Stewards' use was adverse.
With regard to Adams' use, the witnesses for the Stewards could not deny the existence of an agreement for permissive use, but could only deny awareness of such an agreement. Because of this, their testimony should be characterized as negative and would not be entitled to the same weight as positive testimony of the agreement's existence. (West Chicago Street R.R. Co. v. Mueller (1897), 165 Ill. 499; see Bontz v. Stear (1918), 285 Ill. 599, 602, where testimony of a witness to the oral grant of permission to use a road claimed as an easement was "not refuted except in the negative manner by witnesses who stated that they did not hear conversations between these parties concerning this road.") However, the Lights failed to produce positive testimony of the agreement's existence. The testimony of Lynn and Duclon was excluded and Rex Light did not directly assert that he gave Don Adams permission to use the lane.
While the burden of proof is on the party claiming the prescriptive right (Castle v. Yenerich (1981), 95 Ill. App.3d 39, 419 N.E.2d 677), the law recognizes rebuttable presumptions with regard to the establishment of adversity. Where a way has been used openly, uninterruptedly, continuously and exclusively for more than 20 years and the origin of such way is not shown, there is a rebuttable presumption of adversity. (Petersen v. Corrubia (1961), 21 Ill.2d 525; Mueller v. Keller (1960), 18 Ill.2d 334.) However, the use of vacant and unenclosed land is presumed to be permissive and not adverse. (Poulos v. F.H. Hill Co. (1948), 401 Ill. 204; Monroe v. Shrake (1941), 376 Ill. 253.) Thus, the presumption of adversity is not applicable to vacant and unenclosed land. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App.3d 1046, 307 N.E.2d 424; Rita Sales Corp. v. Bartlett (1970), 129 Ill. App.2d 45, 263 N.E.2d 356.) Nor can the presumption of adversity be employed where there is evidence showing the origin of the alleged easement. Rita Sales Corp. v. Bartlett (1970), 129 Ill. App.2d 45, 263 N.E.2d 356.
9 The parties make much of whether the lane was enclosed. The evidence is clear that the Lights have maintained a gate at the north end of their property for well over 20 years, although it was not locked until the present controversy erupted. Moreover, the land was not vacant, as evidenced by the fact that the way ran by the Lights' residence on the northern tract. Therefore, the use cannot be presumed permissive.
The only possible evidence showing the origin of the alleged easement *597 or rebutting the presumption of adversity related to the alleged agreement between Rex Light and Don Adams. Because the trial court's exclusion of the testimony of Chester Lynn and Warren Duclon must be sustained and this court agrees that Rex Light did not directly assert the existence of the agreement, the presumption of adversity applies and the trial court must be affirmed.
The circuit court of Winnebago County's finding of an easement cannot be sustained on the easement of necessity by implication theory because the element of unity of title was neither pleaded nor proved. The finding of easement by prescription is affirmed, however, because of the failure of plaintiffs' evidence on permissive use. The proper bases for admitting the testimony regarding an agreement showing the use to be permissive were not presented to the trial court and therefore were waived for purposes of consideration of the alleged error on appeal.
Affirmed.
UNVERZAGT and SCHNAKE, JJ., concur.
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
16-P-1366 Appeals Court
AQUA KING FISHERY, LLC vs. CONSERVATION COMMISSION OF
PROVINCETOWN.
No. 16-P-1366.
Barnstable. April 13, 2017. - June 16, 2017.
Present: Kafker, C.J., Grainger, & Kinder, JJ.
Shellfish. Municipal Corporations, By-laws and ordinances,
Conservation commission, Shellfish. Wetlands Protection
Act. Fisheries.
Civil action commenced in the Superior Court Department on
February 13, 2015.
Motions for judgment on the pleadings and a special motion
to dismiss counterclaims were heard by Gary A Nickerson, J.
Stephen M. Ouellette for the plaintiff.
Gregg J. Corbo for the defendant.
GRAINGER, J. Aqua King Fishery, LLC (Aqua King), the owner
of the commercial fishing vessel Sentinel, appeals from a
judgment of the Superior Court entered pursuant to an order
denying, in part, its motion for judgment on the pleadings. At
issue is Aqua King's failure to obtain a permit from the
2
conservation commission of Provincetown (commission) for the use
of hydraulic dredge fishing gear in its commercial sea clam
fishing operation on areas of the ocean floor near
Provincetown's shore. Aqua King contends that the activity at
issue is controlled by the Division of Marine Fisheries (DMF)
and is thus exempt from municipal and other State regulations.
Aqua King consequently sought to reverse the enforcement order
issued by the commission.1 Aqua King also appeals from the
judge's partial allowance of the commission's cross motion for
judgment on the pleadings with respect to its counterclaim
based on an asserted violation of § 40 of the Wetlands
Protection Act, G. L. c. 131 (WPA).2
In its cross appeal, the commission, Provincetown's local
authority enforcing the WPA and regulations of the Department of
1
After a public hearing, the commission entered an
enforcement order in which it found that the "SENTINEL has
dredged a resource area, to wit: land under the ocean and near
shore areas, by use of hydraulic dredge, resulting in alteration
of the resource area. . . . The activity has been conducted
without proper filings and approvals of the Conservation
Commission in violation of the Provincetown Wetlands Bylaw,
Provincetown Conservation Commission Regulations, Article 8, the
Massachusetts Wetlands Protection Act, [G. L.] c. 131, § 40 and
regulations of the Massachusetts Department of Environmental
Protection, 310 [Code Mass. Regs. §§] 10.02(2)(a) and 10.25.
The specific violations occurred twice on December 14, 2014."
2
Aqua King identifies itself as a "reluctant appellant"
because it has ceased its fishing activities. Although the
commission filed its notice of appeal first, Aqua King is
nonetheless identified as the appellant pursuant to Mass.R.A.P.
16 (i), 365 Mass. 860 (1974).
3
Environmental Protection (DEP), appeals from the judge's rulings
that (1) denied its motion for judgment on the pleadings insofar
as he concluded that article 8 of the Provincetown wetlands by-
law was unenforceable, and (2) denied its request for imposition
of a $25,000 fine, the maximum penalty allowed under the WPA.
We address the judge's rulings in the context of the
limited scope of judicial review applicable to an agency
decision challenged, as is the case here, by a petition for
certiorari pursuant to G. L. c. 249, § 4.3 Judicial review of an
agency decision in the nature of certiorari "allows a court to
'correct only a substantial error of law, evidenced by the
record, which adversely affects a material right of the
plaintiff. . . . In its review, the court may rectify only those
errors of law which have resulted in manifest injustice to the
plaintiff or which have adversely affected the real interests of
3
Aqua King's only avenue of appeal of the town's by-law
determination was by way of G. L. c. 249, § 4. See FIC Homes of
Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass.
App. Ct. 681, 684–685 (1996). However, the appeal of the town's
application of the WPA to Aqua King's conduct should have been
brought pursuant to G. L. c. 30A, § 14. This case thus
presented essentially identical administrative rulings subject
to separate bases for appeal. In any event, the parties did not
raise this issue, and our cases recognize that the standard of
appellate review under G. L. c. 30A, § 14, and G. L. c. 249,
§ 4, is essentially the same. See Lovequist v. Conservation
Commn. of Dennis, 379 Mass. 7, 17–18 (1979); FIC Homes of
Blackstone, Inc., supra; Conservation Commn. of Falmouth v.
Pacheco, 49 Mass. App. Ct. 737, 742 (2000).
4
the general public.'" DiMasi v. State Bd. of Retirement, 474
Mass. 194, 199 (2016) (citation omitted).
Town by-law. The commission argues that Aqua King was
required to comply with Provincetown's by-law because it is
reasonably related to the commission's statutory responsibility
of protecting wetland resource areas. Article 8.1 of the by-law
provides, "No hydraulic dredging shall occur within the waters
under the jurisdiction of the Provincetown Conservation
Commission without a proper filing before the Conservation
Commission." However, "[m]unicipalities may not adopt bylaws or
ordinances that are inconsistent with State laws." Boston Gas
Co. v. Somerville, 420 Mass. 702, 703 (1995). Mad Maxine's
Watersports, Inc. v. Harbormaster of Provincetown, 67 Mass. App.
Ct. 804, 807 (2006).
The language of G. L. c. 130, § 52, first par., as inserted
by St. 1941, c. 598, § 1, explicitly authorizes towns to
"control, regulate or prohibit the taking of eels and any or all
kinds of shellfish and sea worms" and "make any regulations not
contrary to law in regard to said fisheries." Section 52, sixth
par., as inserted by St. 1982, c. 363, excludes two specific
species of shellfish, sea clams and ocean quahogs,4 from the
4
Sea clams (spilosa solidissima) and ocean quahogs (artica
islandica).
5
defined category of "shellfish" that towns are authorized to
regulate.
While § 52 does not contain an overt prohibition against
towns' regulation of sea clam and quahog harvesting, we cannot
overlook the explicit exclusion of these two organisms from the
language otherwise conferring authority to towns over "any and
all kinds of shellfish." We consider the Legislature to have
added the exception in 1982 to effect the common meaning of such
a construction, namely to withhold authority. Expressio unius
est exclusio alterius (to express one element is to exclude
others). Skawski v. Greenfield Investors Property Dev. LLC, 473
Mass. 580, 588 (2016). As was stated in Commonwealth v.
Paasche, 391 Mass. 18, 20 (1984), "section 52 now . . .
expressly eliminates the right of municipalities to regulate the
commercial harvesting of sea clams."
Finally, we discern further support for this interpretation
from the remainder of § 52, sixth par., which, pending the
approval of the director of DMF,5 allows for regional management
of commercial harvesting of the two excepted shellfish species.6
5
"'Director', the director of the division of marine
fisheries." G. L. c. 130, § 1, as inserted by St. 1941, c. 598,
§ 1.
6
The relevant language provides "that the director may
authorize the commercial management of sea clams and ocean
quahogs by regional management of cities and towns, if in his
opinion regional management will be in the best interests of the
6
The language of the by-law, prohibiting hydraulic dredging
"without a proper filing before the [commission]," purports to
regulate the commercial management of sea clams notwithstanding
the contrary effect of the provisions cited above. We therefore
conclude that the commission's claim to exercise authority under
the by-law is "a substantial error of law, evidenced by the
record, which adversely affects a material right of the
plaintiff," and hence is invalid. DiMasi, 474 Mass. at 199,
quoting from Carney v. Springfield, 403 Mass. 604, 605 (1988).
Wetlands Protection Act. The commission also issued the
order in its role as a local enforcement agency under the WPA.
Aqua King argues that commercial fishing, even with the use of a
hydraulic dredge, is controlled by the DMF and thus cannot be
subject to the WPA, as that statute falls within the purview of
the DEP.7
"In the absence of explicit legislative commands to the
contrary, we construe statutes to harmonize and not to undercut
commonwealth." Provincetown neither obtained the director's
approval nor enacted the by-law as part of a regional plan.
7
The DMF did not participate in this action, despite
notification to the Attorney General's office of the pendency of
these proceedings. The DMF has taken no position on the
validity or applicability of the WPA dredging regulations to
hydraulic dredging for the purposes of harvesting surf clams.
The DEP also did not participate in these proceedings, and
we do not have the DEP's interpretation of its regulations
before us.
7
each other." Burbank Apartments Tenant Assn. v. Kargman, 474
Mass. 107, 124–125 (2016) (quotation omitted). Pursuant to
G. L. c. 130, § 17(10), the DMF may regulate marine fisheries
resources, notwithstanding any contrary provision of law. The
applicable DMF regulations prohibited, and continue to prohibit,
surf clam dredging at certain shallow depths during specified
times of the year. See 322 Code Mass. Regs. § 6.08(2) (1993).8
However, nothing in the regulations prohibits further regulation
by other authorities, including the commission, affecting other
unspecified areas or times of the year. See G. L. c. 131, § 40,
as inserted by St. 1990, c. 388, § 1 (commission "may issue
enforcement orders directing compliance with this section and
may undertake any other enforcement action authorized by law").
Dredging without filing a notice of intent (NOI) and
without receiving and complying with an order of conditions is
expressly prohibited by the WPA. G. L. c. 131, § 40. Although
there are exceptions to the requirement for filing an NOI,9
commercial fishing is not one of them. Aqua King argues that
8
We assume that "surf" clams and "sea" clams are idiomatic
variations referring to the same organism (spilosa solidissima).
The difference, if any, does not affect our analysis.
9
See G. L. c. 131, § 40, twenty-seventh par.; 310 Code
Mass. Regs. § 10.02(2) (2014).
8
the term "dredge" as defined in similar statutes10 shows
legislative intent that hydraulic dredge fishing was not meant
to be regulated by the WPA. However, the express definition of
the term "dredge," as provided by the DEP, includes even a
slight temporary deepening of the ocean floor. See 310 Code
Mass. Regs. § 10.04 (2014) ("[d]redge means to deepen, widen or
excavate, either temporarily or permanently, land below the mean
high tide level in coastal waters . . .").
Aqua King also contends that even if application of the WPA
to its fishing activities is jurisdictionally proper, the
commission's decision to do so was arbitrary and capricious
under the circumstances, and therefore must be invalid.11
We conclude that application of the WPA to Aqua King's method of
hydraulic clamming was supported by substantial evidence and was
neither arbitrary nor capricious.
Ample evidence in the record supports the commission's
conclusion that Aqua King's dredging technique causes a
10
See G. L. c. 91, § 54 (dumping in tide waters); G. L.
c. 184, § 31 (conservation restrictions on real property).
11
Aqua King further argues that the commission has no
jurisdiction over the area where Aqua King conducted its
fishing. However, jurisdiction over the area subject to this
litigation was delegated by the DEP to the commission through
the WPA, giving it authority to regulate nearshore areas of land
under the ocean to the point where "the land is . . . 40 feet
below the level of the ocean at mean low water for
Provincetown's land in Cape Cod Bay." 310 Code Mass. Regs.
§ 10.25(2) (2014).
9
temporary deepening of the ocean floor within nearshore waters;
a scan of the ocean floor found trenches some one to two feet in
depth and six to eight feet in width. In sum, there was a
reasonable basis for the commission's decision. See T.D.J. Dev.
Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct.
124, 128 (1994), quoting from Cotter v. Chelsea, 329 Mass. 314,
318 (1952) ("A decision is not arbitrary and capricious unless
there is no ground which 'reasonable men might deem proper' to
support it").
Civil penalty. The commission argues that the judge erred
in denying its request for the court to impose a civil penalty
against Aqua King for its WPA violation.12 We do not view the
judge's order on this claim as a denial with prejudice. The
judge noted in his decision on the cross motions for judgment on
the pleadings that, at that particular time, the commission had
proposed neither remediation measures nor a timeline for their
implementation. Rather, the commission indicated that these
specifics were "TBD." Accordingly, the matter is remanded for
the judge to rule on the request for the imposition of a civil
12
The parties have not objected to a resolution of the
penalty issue in an "on the record" proceeding reviewing the
issuance of an enforcement order. That question therefore is
not before us.
10
penalty13 once the commission has made the requisite
determinations under the WPA.
Conclusion. We vacate that portion of the judgment denying
count III of the defendant's counterclaim for the imposition of
a civil penalty, and that matter is remanded for further
proceedings consistent with this opinion. In all remaining
respects, the judgment is affirmed.
So ordered.
13
The statute provides in relevant part: "Whoever violates
any provision of this section. . . . shall be subject to a civil
penalty not to exceed twenty-five thousand dollars for each
violation." G. L. c. 131, § 40, as amended by St. 1990, c. 388,
§ 3.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PLANNED PARENTHOOD OF GREATER OHIO; PLANNED ┐
PARENTHOOD OF SOUTHWEST OHIO REGION, │
Plaintiffs-Appellees, │
│
> No. 16-4027
v. │
│
│
RICHARD HODGES, in his official capacity as Director │
of the Ohio Department of Health, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:16-cv-00539—Michael R. Barrett, District Judge.
Argued: October 3, 2018
Decided and Filed: March 12, 2019
Before: COLE, Chief Judge; SILER, BATCHELDER, MOORE, CLAY, GIBBONS,
SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD,
THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
REARGUED EN BANC: Stephen P. Carney, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellant. Alan E. Schoenfeld, WILMER CUTLER
PICKERING HALE AND DORR LLP, New York, New York, for Appellees. Hashim M.
Mooppan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal
Amicus Curiae. ON SUPPLEMENTAL BRIEF: Stephen P. Carney, Eric E. Murphy, Hannah
C. Wilson, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellant. Alan E. Schoenfeld, WILMER CUTLER PICKERING HALE AND
DORR LLP, New York, New York, Jennifer L. Branch, GERHARDSTEIN & BRANCH CO.
LPA, Cincinnati, Ohio, Helene T. Krasnoff, Carrie Y. Flaxman, PLANNED PARENTHOOD
FEDERATION OF AMERICA, Washington, D.C., Paul R.Q. Wolfson, Kimberly A. Parker,
WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Appellees.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 2
Hashim M. Mooppan, Matthew M. Collette, Lewis S. Yelin, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Aaron D. Lindstrom, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Jay Alan Sekulow, AMERICAN
CENTER FOR LAW & JUSTICE, Washington, D.C., Steven H. Aden, AMERICANS UNITED
FOR LIFE, Arlington, Virginia, Laura Etlinger, OFFICE OF THE NEW YORK ATTORNEY
GENERAL, Albany, New York, T. Dietrich Hill, KELLOGG, HANSEN, TODD, FIGEL
& FREDERICK, P.L.L.C., Washington, D.C., Jyotin Hamid, DEBEVOISE & PLIMPTON LLP,
New York, New York, for Amici Curiae.
SUTTON, J., delivered the opinion of the court in which SILER, BATCHELDER,
GIBBONS, COOK, GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, and
NALBANDIAN, JJ., joined. WHITE, J. (pp. 13–35), delivered a separate dissenting opinion in
which COLE, C.J., and MOORE, CLAY, STRANCH, and DONALD, JJ., joined.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Ohio, like many governments, often partners with nonprofit
organizations to promote policies of the State. Through one such partnership, the State
distributes government funds to several organizations to address a wide range of public health
issues. For many years, Planned Parenthood participated in these programs. In 2016, Ohio
passed a law that bars its health department from funding organizations that “[p]erform
nontherapeutic abortions.” Ohio Rev. Code § 3701.034(B)(1). Two Planned Parenthood
affiliates challenged the statute, claiming that it imposes an unconstitutional condition on public
funding in violation of the Due Process Clause. The affiliates are correct that the Ohio law
imposes a condition on the continued receipt of state funds. But that condition does not violate
the Constitution because the affiliates do not have a due process right to perform abortions. See
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) (plurality). We reverse the
district court’s contrary decision.
I.
Ohio distributes funds to organizations that participate in six government-sponsored
health and education programs. The programs target sexually transmitted diseases, breast cancer
and cervical cancer, teen pregnancy, infant mortality, and sexual violence.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 3
Planned Parenthood of Greater Ohio and Planned Parenthood of Southwest Ohio manage
twenty-seven health centers across the State. They have participated in these programs for
several years. Both entities provide abortions at surgical centers in Bedford Heights, Columbus,
and Cincinnati.
For several decades, both federal and state laws have prohibited recipients of public funds
from using the money to provide abortions. The Planned Parenthood affiliates comply with
these requirements.
In 2016, the Ohio legislature enacted, and Governor Kasich signed into law, House Bill
294 to “Prohibit[] [the] use of certain funds concerning nontherapeutic abortions.” It requires the
Ohio Department of Health to “ensure” that all of the funds it receives for the six programs “are
not used to do any of the following: (1) Perform nontherapeutic abortions; (2) Promote
nontherapeutic abortions; (3) Contract with any entity that performs or promotes nontherapeutic
abortions; (4) Become or continue to be an affiliate of any entity that performs or promotes
nontherapeutic abortions.” Ohio Rev. Code § 3701.034(B)–(G). The point of the limitation, the
State maintains, is to promote childbirth over abortion, to avoid “muddl[ing]” that message by
using abortion providers as the face of state healthcare programs, and to avoid entangling
program funding and abortion funding. Appellant’s Br. 39–41.
Ohio’s health department and its local counterparts notified Planned Parenthood of
Greater Ohio and Planned Parenthood of Southwest Ohio that the new law would require the
State to end their contracts under the programs. Both entities perform abortions, advocate for
abortion, and affiliate with other entities that do the same.
Both of the affiliates, from now on referred to as Planned Parenthood in the singular,
sued, claiming that the law violates the First and Fourteenth Amendments by conditioning
government funding on giving up their rights to provide abortions and to advocate for them. The
district court agreed and permanently enjoined the State from enforcing the law.
After a panel of this court affirmed the district court, 888 F.3d 224 (2018), the full court
decided to review the appeal, 892 F.3d 1283 (2018) (mem.).
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 4
II.
As the district court saw it, the Ohio law imposes two unconstitutional conditions on
Planned Parenthood. It denies the organization funding if it continues to perform abortions—
what the court perceived to be a due process violation. And the law denies the organization
funding if it continues to promote abortion—what the court perceived to be a free speech
violation. To prevail, Planned Parenthood must show that both limitations—the conduct and
speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned
Parenthood in other words if either limitation satisfies the Constitution. Because the conduct
component of the Ohio law does not impose an unconstitutional condition in violation of due
process, we need not reach the free speech claim.
First a word or two about unconstitutional conditions. The United States Constitution
does not contain an Unconstitutional Conditions Clause. What it does contain is a series of
individual rights guarantees, most prominently those in the first eight provisions of the Bill of
Rights and those in the Fourteenth Amendment. Governments generally may do what they wish
with public funds, a principle that allows them to subsidize some organizations but not others
and to condition receipt of public funds on compliance with certain obligations. See Rust v.
Sullivan, 500 U.S. 173, 192–94 (1991). What makes a condition unconstitutional turns not on a
freestanding prohibition against restricting public funds but on a pre-existing obligation not to
violate constitutional rights. The government may not deny an individual a benefit, even one an
individual has no entitlement to, on a basis that infringes his constitutional rights. Agency for
Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214 (2013). Otherwise, the
government could leverage its spending authority to limit, if not eliminate, the exercise of this or
that constitutional right. In the words of the Supreme Court, the principle “forbids burdening the
Constitution’s enumerated rights by coercively withholding benefits from those who exercise
them.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 606 (2013).
What is the enumerated right at issue here? The guarantee of due process established by
the Fourteenth Amendment. That provision, as the United States Supreme Court has come to
construe it, prohibits a State from imposing an “undue burden” on a woman’s access to an
abortion before fetal viability. Casey, 505 U.S. at 877 (plurality).
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 5
These principles establish the following line between what Ohio may do and what it may
not do. It may choose not to fund a private organization’s health and education initiatives.
Private organizations do not have a constitutional right to obtain governmental funding to
support their activities. The State also may choose not to subsidize constitutionally protected
activities. Just as it has no obligation to provide a platform for an individual’s free speech, say a
Speaker’s Corner in downtown Columbus, it has no obligation to pay for a woman’s abortion.
Case after case establishes that a government may refuse to subsidize abortion services. Rust,
500 U.S. at 201–02; Harris v. McRae, 448 U.S. 297, 315–17 (1980); Maher v. Roe, 432 U.S.
464, 474 (1977). Both the United States and Ohio have done exactly that, whether through the
Hyde Amendment, see Pub. L. No. 115-31, §§ 613–14, 131 Stat. 135, 372 (2017), or through
Ohio Revised Code § 9.04(B).
By contrast, the State may not condition a benefit by requiring the recipients to sacrifice
their constitutional rights. Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545
(1983). Just as the State may not directly order someone to stop exercising his rights, it may not
coerce him into “giving them up” by denying the benefits if he exercises those rights. Koontz,
570 U.S. at 604, 612.
The Ohio law falls on the permissible side of this line. Today’s plaintiffs do not have a
Fourteenth Amendment right to perform abortions. The Supreme Court has never identified a
freestanding right to perform abortions. To the contrary, it has indicated that there is no such
thing. “Whatever constitutional status the doctor-patient relation may have as a general matter,”
the Court has explained, “in the present context it is derivative of the woman’s position. The
doctor-patient relation does not underlie or override the two more general rights under which the
abortion right is justified: the right to make family decisions and the right to physical autonomy.
On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other
contexts.” Casey, 505 U.S. at 884 (plurality) (emphasis added).
Any doubt about the point is confirmed by the debate at hand in Casey. The abortion
providers claimed that a Pennsylvania law, requiring them to inform their patients of the abortion
procedure’s details and alternatives at least 24 hours beforehand, violated their patients’ due
process rights and their own due process rights that arose from their relationship with the
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 6
patients. The plurality rejected both claims. Abortion rights do not arise from the provider-
patient relationship “[o]n its own,” the Court reasoned. Id. After explaining that the law did not
unduly burden women’s rights, the plurality concluded that the law had no more constitutional
import as to the providers than if its requirements dealt with “a kidney transplant.” Id. at 883. In
the absence of a constitutional right to perform abortions, the plaintiffs have no basis to bring an
unconstitutional-conditions claim.
At the same time, the Ohio law does not violate a woman’s right to obtain an abortion. It
does not condition a woman’s access to any of these public health programs on refusing to obtain
an abortion. It makes these programs available to every woman, whether she seeks an abortion
or not. Nor, on this record, has there been any showing that the Ohio law will limit the number
of clinics that offer abortions in the State. Cf. Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2309–18 (2016).
A review of the Supreme Court’s decisions in the area fails to reveal a single one in
which the plaintiff obtained relief based on a restriction of unprotected activity. The dissent to
its credit concedes as much. Infra, at 26 n.8. A benefits condition becomes unconstitutional
only when it violates a recipient’s constitutional rights, as the following cases confirm. See, e.g.,
Koontz, 570 U.S. 595 (permit condition on landowner burdened his Fifth Amendment rights);
All. for Open Soc’y Int’l, 570 U.S. 205 (funding condition on aid organization burdened its First
Amendment rights); Rust, 500 U.S. 173 (funding condition on Title X grantees did not violate
their First Amendment rights); Regan, 461 U.S. 540 (tax-exemption condition on organization
did not violate its First Amendment rights); Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250 (1974)
(benefits condition on nonresident indigent burdened his Fourteenth Amendment rights).
The only other circuit in the country to squarely address this issue reached the same
conclusion. “The first step in any unconstitutional-conditions claim is to identify the nature and
scope of the constitutional right arguably imperiled,” it reasoned, and abortion clinics lack a
freestanding constitutional right to practice their trade. Planned Parenthood of Ind., Inc. v.
Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 986–88 (7th Cir. 2012). Accordingly, “[a]s
long as the difference in treatment does not unduly burden a woman’s right to obtain an abortion,
the government is free to treat abortion providers differently” than other entities. Id. at 988. In
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 7
that case, the Seventh Circuit rejected an unconstitutional-conditions challenge to an Indiana law
with a conduct component identical in every material way to this Ohio law. In dicta, the Ninth
Circuit reached a similar conclusion. “Never has it been suggested,” the court explained, “that if
there were no burden on a woman’s right to obtain an abortion, medical providers could
nonetheless assert an independent right to provide the service for pay.” Teixeira v. Cty. of
Alameda, 873 F.3d 670, 689 (9th Cir. 2017) (en banc).
Planned Parenthood nonetheless maintains that a bevy of cases establishes that clinics do
have a due process right to perform abortions. But a review of the cases leaves the reader empty
handed. Webster v. Reproductive Health Services, 492 U.S. 490 (1989), held that physicians
have no right to use public facilities to provide abortions, all consistent with the no-required-
funding-of-abortions principle on which Ohio’s policy decision rests. After explaining that
holding, Webster speculated that it might “be different if the State barred doctors who performed
abortions in private facilities from the use of public facilities for any purpose.” Id. at 510 n.8.
Three years after Webster, however, Casey ended any speculation over whether providers have a
constitutional right to offer abortion services. It indicated they do not.
Planned Parenthood of Central & Northern Arizona v. Arizona, 718 F.2d 938, 946 (9th
Cir. 1983), another pre-Casey case, fares no better. It never held that providers have a
constitutional right to perform abortions and indeed had no occasion to do so because it analyzed
a broad, speech-centric claim about restrictions on a combination of abortion-related activities.
Planned Parenthood of Mid-Missouri & East Kansas, Inc. v. Dempsey, 167 F.3d 458, 461–64
(8th Cir. 1999), is to like effect.
The Tenth Circuit, it is true, accepted the existence of a Fourteenth Amendment right to
provide abortions. Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1260 (10th
Cir. 2016). But it did so without meaningful analysis or authority, and most importantly it did so
in a case in which the State did not challenge the existence of the right.
Third-party-standing cases do not fill this gap. In those cases, the Supreme Court held
that abortion providers have standing to bring due process challenges on behalf of their patients.
See, e.g., Singleton v. Wulff, 428 U.S. 106, 118 (1976) (plurality); see also Diamond v. Charles,
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 8
476 U.S. 54, 65–66 (1986). But these decisions do not establish that the providers themselves
have due process rights. Much to the contrary. The premise of these challenges is that the
providers have no constitutional rights of their own in this setting. Why else go through the
rigmarole of granting the provider third-party standing to file the claim? The first party (the
woman) has the claim, and the third party (the provider) sometimes may bring that claim on her
behalf. Any other interpretation of the third-party doctrine, as the plaintiffs use it here, would
have this disfiguring effect: It would create a constitutional right for providers to offer abortion
services and, in doing so, move the law perilously close to requiring States to subsidize
abortions. Case law rejects both possibilities.
Even if the Fourteenth Amendment does not grant Planned Parenthood a constitutional
right to perform abortions and even if the third-party-standing doctrine does not fill this gap, the
organization maintains that the unconstitutional-conditions doctrine defeats the law all the same.
Ohio may not directly ban access to abortion services in the State, Planned Parenthood points
out, and the unconstitutional-conditions doctrine bars a State from achieving that same goal
indirectly, here by financially incentivizing abortion providers to cease offering this service.
Yes, the doctrine would prohibit the State from requiring women to forfeit benefits if they chose
to obtain an abortion and if that limitation unduly burdened their access to abortion services.
That’s because such a state law would try to achieve indirectly what the State cannot achieve
directly with respect to the underlying constitutional right. But, no, the principle does not apply
when the State regulates entities with no such constitutional right: abortion providers. In that
setting, the clinic is like anyone else in the State, subject to all manner of regulatory incentives
and disincentives, whether in the tax code, economic development plans, or any other part of
state or local law.
Consistent with this explanation, all of the cases cited by Planned Parenthood with
respect to this direct-indirect point involved individuals or entities who held the constitutional
right and were discouraged from exercising it. See, e.g., Elrod v. Burns, 427 U.S. 347, 360–61
(1976) (employees claimed that county fired them due to their political affiliation); Perry v.
Sindermann, 408 U.S. 593, 597–98 (1972) (professor claimed that state college refused to renew
his contract due to his protected speech); Lane v. City of LaFollette, 490 F.3d 410, 419 (6th Cir.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 9
2007) (employee claimed that city fired him for his political beliefs); Toledo Area AFL-CIO
Council v. Pizza, 154 F.3d 307, 321 (6th Cir. 1998) (public-employee unions claimed that
prohibition on payroll deductions for political causes discouraged their political expression).
The direct-indirect dynamic, put another way, is not by itself what triggers the doctrine.
The doctrine applies when the government attempts to ban or undermine a benefit recipient’s
exercise of a right that the Constitution guarantees. That’s why an unconstitutional-conditions
claim won’t get far if the government could have directly ordered the outcome it wishes to
incentivize. In that case, there is no right at issue. See Rumsfeld v. Forum for Acad. &
Institutional Rights, Inc., 547 U.S. 47, 58–60 (2006) (upholding funding condition that required
universities to give military recruiters equal access to students, because the First Amendment
would allow Congress to directly impose such a requirement). Because Planned Parenthood has
no constitutional right to perform abortions, the doctrine does not apply to Ohio’s incentives to
refrain from performing them.
Truth be told, general concerns about indirect efforts to accomplish what cannot be
accomplished directly illustrate what is wrong with this claim. Medical centers do not have a
constitutional right to offer abortions. Yet, if we granted Planned Parenthood relief today, we
would be effectively saying that they do. That is not the role of the unconstitutional-conditions
doctrine.
That this traditional application of the unconditional-conditions doctrine might apply in
other settings, as the dissent points out, infra, at 26, counts as a plus, not a minus, in the
constitutional equation. It shows that the principle is a neutral one. And it shows that our
assessment of the case turns on the nature of the unconstitutional-conditions doctrine, not on
individual preferences with respect to this constitutional right or that one. Any risk of unequal
application would arise in this case only if we extend the unconstitutional-conditions doctrine for
the first time to an entity (here an abortion provider) that does not have a constitutional right.
In the absence of such an extension, Planned Parenthood worries that the
unconstitutional-conditions doctrine will lead to several problematic outcomes. “Imagine,” the
dissent suggests, “that the government barred lawyers who represent indigent defendants from
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 10
eligibility for loan forgiveness programs.” Id. Or imagine, we could add, that the government
denied government construction contracts to companies that build for customers of a particular
faith or race or burdened gun shops with punitive or irrational licensing requirements. Straw
men, to be sure, but revealing all the same. None of these hypotheticals reveals a doctrinal (or
policy) gap that an extension of the unconstitutional-conditions doctrine needs to fill.
The initial question in each instance is whether such a law would implicate the regulated
entity’s constitutional rights or some other prohibition. That seems likely in each setting. The
first application would implicate a lawyer’s free speech rights. See Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 544 (2001). The second application would implicate the prohibition on
drawing racial and faith-based classifications in any law. Just as a State could not condition an
abortion provider’s subsidy on providing services only to individuals of a certain race or religion,
so it could not condition a construction company’s contracts on serving only non-Muslim clients
or only white clients. See Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990); Brown v. Bd. of Educ.,
347 U.S. 483, 488, 495 (1954). Even aside from the question whether gun stores have Second
Amendment rights, compare Teixeira, 873 F.3d at 681–90, with id. at 698–99 (Bea, J.,
dissenting), the third application confirms that all punitive or irrational licensing requirements
run the risk of violating a store’s constitutional rights, whether the store sells guns or not. But it
is hardly punitive or irrational for a State to subsidize some activities and not others. The
unconstitutional-conditions doctrine no more elevates non-constitutional claims into
constitutional ones than it insulates protected rights from protection.
This last point answers the dissent’s next hypotheticals about polling-place funding and
gun-shop tax breaks, infra, at 26, as well as any others that a fertile imagination could identify,
so long as the law does not violate the regulated entity’s rights or another prohibition. Take the
gun shop. Surely a State could deny subsidies for entities dealing with the needs of victims of
gun violence to entities or stores that sold guns. In the end, so long as the subsidy program does
not otherwise violate a constitutional right of the regulated entity, the State may choose to
subsidize what it wishes—whether abortion services or adoption services, whether stores that sell
guns or stores that don’t.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 11
That leads to Planned Parenthood’s next argument. Left untouched, the Ohio law will
deprive Ohio women of their constitutional right of access to abortion services without undue
burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop
providing them. Maybe; maybe not. More to the point, the conclusion is premature and
unsupported by the record. It is true that, if these two Planned Parenthood affiliates opted not to
provide abortions, women seeking an abortion in Ohio would have to travel farther than they
currently do to obtain an abortion. It is also true that this kind of evidence may support an
undue-burden challenge by establishing a “substantial obstacle” in the way of those seeking
abortions. See Whole Woman’s Health, 136 S. Ct. at 2309–18; Women’s Med. Prof’l Corp. v.
Baird, 438 F.3d 595, 604–05 (6th Cir. 2006).
But it is premature to assess any such claim now. For one, it is not clear that the
plaintiffs filed an undue-burden challenge on behalf of individual women, as opposed to an
unconstitutional-conditions challenge on their own behalf. For another, the record contains more
speculation than evidence about what would happen if these two Planned Parenthood affiliates
stopped providing abortions. For still another, the only hard evidence on point is that Planned
Parenthood does not plan to stop providing abortions, as representatives from each affiliate
testified that they would sacrifice government funding to continue providing abortions. On this
record, it would be unduly conjectural, and unripe to boot, to imagine what would happen if the
plaintiffs changed their mind. Under our Article III authority to resolve “Cases” and
“Controversies,” we must limit ourselves to the seen rather than the unseen. And all that the
seen shows is that the law will not create an undue burden on a woman’s right to an abortion.
Planned Parenthood insists that it has no obligation to establish an undue burden because
the funding condition itself is unconstitutional, making it irrelevant whether the subject of the
condition gives in. See Koontz, 570 U.S. at 607. That may be true if the subject of the funding
incentive possesses the right. But that is not true in this instance because the subject—here
providers, not women—does not possess the right. All of which takes us back to where we
started. To have an unconstitutional condition, the State must impose the condition on the
individual (or entity) with the constitutional right. If there’s no right, there’s no unconstitutional
condition. And the providers have no such constitutional right. The point of the doctrine is to
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 12
protect the underlying right: a woman’s right of access to abortion services without an undue
burden. It is not to leverage a constitutional condition into an unconstitutional one while freeing
the provider from either asserting a valid right of its own or showing any undue burden on
anyone.
That this is a pre-enforcement action, last of all, changes nothing. Even in that setting,
Planned Parenthood must show that the Ohio law, if implemented, would impose an undue
burden on a woman’s right to an abortion. Its vow to keep performing abortions sinks any pre-
enforcement action, and any speculation about what would happen if it changed its mind is just
that.
For these reasons, we reverse the district court’s contrary decision and remand for
proceedings consistent with this opinion.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 13
_________________
DISSENT
_________________
HELENE N. WHITE, Circuit Judge, dissenting. The majority makes short work of
Plaintiffs’ arguments with three simple assertions. Because Plaintiff clinics have no independent
constitutional right to perform abortions, it is impossible for Ohio to violate their due process
rights by withholding benefits or imposing burdens based on their abortion activities; a woman
has a due process right to obtain certain nontherapeutic abortions, but no condition violates that
right unless it imposes an undue burden on that right; because Plaintiff providers have made
clear that they will not accede to Ohio’s funding conditions, there is no undue burden on a
woman’s abortion right.
The majority does not mention, much less apply, the test the Supreme Court has recently
articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the
government from conditioning the grant of funds under a government program if: (1) the
challenged conditions would violate the Constitution if they were instead enacted as a direct
regulation; and (2) the conditions affect protected conduct outside the scope of the government
program. See Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 570 U.S. 205, 213-15
(2013) (hereafter AOSI). Because (1) the funding conditions in this case would result in an
undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and
(2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating
for abortion rights, or affiliating with organizations that engage in such activity, all on their own
“time and dime,” I respectfully dissent.
Enacted in 2016, Ohio Revised Code § 3701.034 (the Statute) requires the Ohio
Department of Health (ODH) to ensure that all funds it receives through six non-abortion-related
federal health programs are not used to contract with any entity that performs or promotes
nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or
promotes nontherapeutic abortions. A direct regulation barring healthcare providers from
performing or promoting nontherapeutic abortions or affiliating with any entity that performs or
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 14
promotes nontherapeutic abortions would violate the Constitution by imposing an undue burden
on women seeking abortions and violating the healthcare providers’ rights to free speech and
association. The Statute thus satisfies the first element of an unconstitutional condition. The
Statute also plainly conditions government funding for programs unrelated to abortion on an
entity’s refraining from performing or promoting abortions, or affiliating with any entity that
does either. Because § 3701.034 fails both parts of the test applied in AOSI, the district court
properly enjoined the law from going into effect.
The majority avoids this straightforward application of the unconstitutional-conditions
doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are
necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute
because there is no independent constitutional right to provide abortions. For the proposition
that there is “no such thing” as a right to perform abortions, the majority cites the statement in
the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey that a
provider’s constitutional right “is derivative of the woman’s position.” 505 U.S. 833, 884
(1992). (Maj. Op. at 5.) The majority then assumes that a “derivative” right is no right at all.
But of course, “derivative” simply means “developed from . . . something else.” Black’s Law
Dictionary (10th ed. 2014). An abortion provider’s constitutional right may be derivative of the
patient’s right—but it is a right nonetheless.
And, even if the abortion right belongs only to women, it has long been understood that
“the right is inextricably bound up with” a provider’s ability to offer these services. Singleton v.
Wulff, 428 U.S. 106, 114 (1976) (plurality opinion). Further, the Supreme Court has never
suggested that a party that could prevail in challenging a direct regulation is nevertheless
powerless to challenge a law that attempts to achieve the same result by imposing a condition on
unrelated funding. The majority’s novel rule gives the government the authority to impose
almost any condition it wants on abortion providers so long as the providers continue to perform
abortions. The government acknowledged as much at oral argument. This type of assault on a
constitutional right is precisely the type of harm the unconstitutional-conditions doctrine is meant
to protect against.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 15
I. BACKGROUND
Ohio Revised Code § 3701.034
Ohio Revised Code § 3701.034 provides:
(A) As used in this section:
(1) “Affiliate” means an entity that has with another entity a legal
relationship created or governed by at least one written instrument that
demonstrates any of the following:
(a) Common ownership, management, or control;
(b) A franchise agreement;
(c) The granting or extension of a license or other agreement that
authorizes an entity to use the other entity’s brand name,
trademark, service mark, or other registered identification mark.
(2) “Violence Against Women Act” means section 1910A of section
40151 of the “Violent Crime Control and Law Enforcement Act of 1994,”
part A of Title XIX of the “Public Health and Human Services Act,” 108
Stat. 1920 (1994), former 42 U.S.C. 300w, 42 U.S.C. 280b-1b, as
amended.
(3) “Breast and Cervical Cancer Mortality Prevention Act” means the
“Breast and Cervical Cancer Mortality Prevention Act of 1990,” 104 Stat.
409 (1990), 42 U.S.C. 300k, as amended.
(4) “Infertility prevention project” means the infertility prevention project
operated by the United States centers for disease control and prevention.
(5) “Minority HIV/AIDS initiative” means the minority HIV/AIDS
initiative operated by the office of minority health in the United States
department of health and human services.
(6) “Personal responsibility education program” means the program
administered by the administration for children and families in the United
States department of health and human services to educate adolescents on
abstinence and contraception for the prevention of pregnancy and sexually
transmitted infections.
(7) “Nontherapeutic abortion” has the same meaning as in section 9.04 of
the Revised Code.[1]
1Ohio law defines “nontherapeutic abortion” as “an abortion that is performed or induced when the life of
the mother would not be endangered if the fetus were carried to term or when the pregnancy of the mother was not
the result of rape or incest reported to a law enforcement agency.” Ohio Rev. Code § 9.04(A)(1).
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 16
(8) “Promote” means to advocate for, assist with, encourage, or popularize
through advertising or publicity.
(B) – (G)[2] The department of health shall ensure that all funds it receives
[through the Violence Against Women Act, Breast and Cervical Cancer Mortality
Prevention Act, Infertility prevention project, Minority HIV/AIDS initiative,
infant mortality reduction or infant vitality initiatives] are not used to do any of
the following:
(1) Perform nontherapeutic abortions;
(2) Promote nontherapeutic abortions;
(3) Contract with any entity that performs or promotes nontherapeutic
abortions;
(4) Become or continue to be an affiliate of any entity that performs or
promotes nontherapeutic abortions.
Plaintiffs
Plaintiffs Planned Parenthood of Greater Ohio (PPGOH) and Planned Parenthood
Southwest Ohio Region (PPSWO) are not-for-profit corporations organized under Ohio law.
PPGOH and PPSWO are also affiliates of Planned Parenthood Federation of America, Inc.
(PPFA), which advocates for women’s access to comprehensive reproductive healthcare,
including abortion. Plaintiffs operate twenty-seven3 health centers throughout Ohio, which are
staffed with physicians, nurse practitioners, and physician assistants, who provide well-woman
exams, testing and treatment for sexually transmitted diseases, screenings for breast and cervical
cancer and HIV, and contraception and contraceptive counseling. Three of the twenty-seven
health centers also provide abortion services. Separate from their government-funded health
services and education programs, PPGOH and PPSWO advocate for a woman’s right to safe and
lawful abortion through public awareness campaigns and public education activities.
Consistent with federal and Ohio law, no government funds are used to pay for or
subsidize Plaintiffs’ abortion services or advocacy. It is undisputed that Plaintiffs “maintain
2Sections (B) through (G), which address each of the programs separately, share identical language in
subsections (1) through (4), and are condensed for brevity.
3During the pendency of this appeal, Plaintiffs’ counsel advised that one of the twenty-eight health centers
has closed for reasons unrelated to this case. The district court’s opinion states that Plaintiffs operate twenty-eight
health centers, which was accurate at the time.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 17
measures to ensure that none of the funds received from the state or federal government are used,
directly or indirectly, to subsidize the promotion of abortion or performance of abortion
services.” (R. 60, PID 2136.)
Largely through competitive grant processes, Plaintiffs have for years received funds and
material assistance distributed by ODH and county health departments under the six federal
programs impacted by § 3701.034: the Infertility Prevention Project, Breast and Cervical Cancer
Mortality Prevention Act, Violence Against Women Act, Minority HIV/AIDS Initiative, Infant
Mortality Reduction Initiative, and Personal Responsibility Education Program (PREP).4
Throughout those years, Plaintiffs passed all state and local audits and program reviews.
After § 3701.034 was enacted, ODH and local health departments notified Plaintiffs that
their contracts under the six federal programs would be terminated and they would not be
eligible for funding. Plaintiffs’ termination of services they currently provide under these six
programs could have dramatic public-health consequences. For example, as amicus American
Public Health Association details, Plaintiffs currently provide over 70,000 free STD tests to low-
income Ohioans annually under the STD Prevention Program. With STDs among Ohioans
continuing to rise, Plaintiffs’ non-eligibility in that program could lead to three counties being
without any qualified provider because other existing program providers do not have the capacity
to fill the gap. Section 3701.034’s bar on funds being distributed to Plaintiffs under the other
five programs would require Plaintiffs to cease providing other fundamental public-health
services to primarily low-income or at-risk populations, including HIV testing and education,
cancer screenings, and sexual-violence-prevention education.5
4Plaintiffs’counsel advised the court by letter dated July 27, 2017, that PPGOH did not reapply for grant
funding under the PREP program when its contract expired on July 31, 2017, and that it appears that ODH will no
longer be responsible for allocating PREP funds as of August 1, 2017; thus “there is a question as to whether [this
court] need consider PREP in its analysis of Section 3701.034.” (ECF No. 57.)
5PPGOH is the largest provider of HIV testing and treatment in Cleveland, Akron, and Canton, and
PPSWO provides approximately 1,600 anonymous and confidential HIV tests annually. PPGOH also provided
4,400 pap smears and 3,700 breast exams in the fiscal year ending in June 2015. Approximately 75% of PPSWO’s
patients and 40% of PPGOH’s patients fall within the low-income classification. Many of these patients live in
medically underserved areas––communities classified by the U.S. Department of Health and Human Services as
having too few primary-care providers, high infant mortality and poverty rates, or large elderly populations. ODH
failed to identify alternative providers to fill most of the gaps in service that would result from excluding Plaintiffs
from funding under the six federal programs.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 18
Procedural History
Plaintiffs filed this action for declaratory and injunctive relief under 42 U.S.C. § 1983,
alleging that § 3701.034 violates 1) their First Amendment rights “by denying state and federal
funds” to Plaintiffs “because of––and in retaliation for––their constitutionally-protected
advocacy for abortion rights and affiliation with other organizations that also advocate for
abortion rights and/or provide abortion services”; 2) the Due Process Clause “by denying state
and federal funds” to Plaintiffs “because of––and in retaliation for––the exercise of their own
constitutionally protected right to provide abortions and their patients’ exercise of the
constitutional right to choose to have an abortion”; and 3) the Equal Protection Clause “by
singling out abortion providers and those who ‘promote’ abortions, including [Plaintiffs], for
unfavorable treatment without a constitutionally sufficient justification.” (R. 1, PID 1, 27-28.)
Plaintiffs sought to enjoin ODH from enforcing § 3701.034 or terminating Plaintiffs’ funding
under the six federal programs pursuant to the Statute.
The district court entered a temporary restraining order on the day § 3701.034 was to take
effect. Following discovery, the district court granted Plaintiffs’ motions for judgment on the
merits and permanently enjoined ODH from enforcing § 3701.034, reasoning that § 3701.034
violates the unconstitutional-conditions doctrine by impermissibly conditioning funding from
programs unrelated to abortion based on a recipient’s refraining from exercising its First
Amendment rights to free speech or association outside the contours of the six programs, and
refraining from providing abortion services protected by the Due Process Clause.6 Planned
Parenthood of Greater Ohio v. Hodges, 201 F. Supp. 3d 898 (S.D. Ohio 2016). A unanimous
panel affirmed the district court. 888 F.3d 224 (6th Cir. 2018). The full court then voted for
rehearing en banc. 829 F.3d 1283 (6th Cir. 2018).
II. STANDARD OF REVIEW
This court reviews a challenge to the constitutionality of a statute de novo. Entm’t
Prods., Inc. v. Shelby County, 721 F.3d 729, 733 (6th Cir. 2013). In reviewing the district
6The district court did not reach Plaintiffs’ Equal Protection claim, nor does the majority. Accordingly, the
case must be remanded for the district court to consider the Equal Protection claim.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 19
court’s grant of injunctive relief, the district court’s factual findings are reviewed for clear error,
its legal conclusions are reviewed de novo, and the scope of injunctive relief is reviewed for
abuse of discretion. Sec’y of Labor, U.S. Dep’t of Labor v. 3Re.com, Inc., 317 F.3d 534, 537
(6th Cir. 2003). “A party is entitled to a permanent injunction if it can establish that it suffered a
constitutional violation and will suffer continuing irreparable injury for which there is no
adequate remedy at law.” Lee v. City of Columbus, 636 F.3d 245, 249 (6th Cir. 2011) (quoting
Wedgewood L.P. I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010)).
III. DISCUSSION
The majority concludes that the “conduct provision” of § 3701.034 (precluding entities
that perform nontherapeutic abortions from obtaining funding under the six federal programs)
does not impose an unconstitutional condition because Plaintiffs have no due process right to
perform abortions. The majority declines to reach Plaintiffs’ First Amendment challenges to the
speech and affiliation provisions (prohibiting the allocation of program funds to any entity that
either (1) promotes nontherapeutic abortions, or (2) affiliates with any entity that performs or
promotes nontherapeutic abortions) concluding that Ohio may deny funding to Plaintiffs under
the six federal programs if any one of the provisions is valid. I address all three provisions
because each provision imposes an unconstitutional condition.
A. Due Process Claim
1.
I begin with the unconstitutional-conditions doctrine. The Supreme Court recognized this
doctrine many decades ago to ensure that the government cannot leverage its allocation of
benefits to “manipulate[]” constitutional rights “out of existence.” Frost v. R.R. Comm’n,
271 U.S. 583, 594 (1926). Generally speaking, “the state, having power to deny a privilege
altogether, may grant it upon such conditions as it sees fit to impose.” Id. at 593. The state’s
power, however, “in that respect is not unlimited; and one of the limitations is that it may not
impose conditions which require the relinquishment of constitutional rights.” Id. at 593-94.
“Broadly stated, the rule is that the right to continue the exercise of a privilege granted by the
state cannot be made to depend upon the grantee’s submission to a condition prescribed by the
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 20
state which is hostile to the provisions of the federal Constitution.” United States v. Chi., M., St.
P. & P.R. Co., 282 U.S. 311, 328-29 (1931). Thus, “even though a person has no ‘right’ to a
valuable governmental benefit and even though the government may deny him the benefit for
any number of reasons,” the government “may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests.” Perry v. Sindermann, 408 U.S. 593, 597
(1972). This doctrine has been applied in a number of contexts where constitutional rights were
implicated, see Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (“We
have said in a variety of contexts that ‘the government may not deny a benefit to a person
because he exercises a constitutional right.’” (citation omitted)), including where the government
“condition[s] benefits on a citizen’s agreement to surrender due process rights,” R.S.W.W., Inc. v.
City of Keego Harbor, 397 F.3d 427, 434 (6th Cir. 2005).
“A predicate for any unconstitutional conditions claim is that the government could not
have constitutionally ordered the person asserting the claim to do what it attempted to pressure
that person into doing.” Koontz, 570 U.S. at 612. And, critically for this case, even when a party
“refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial
of a governmental benefit is a constitutionally cognizable injury.” Id. at 607; see also AOSI, 570
U.S. at 214 (explaining that a condition need not be “actually coercive” to violate the
Constitution).
To be sure, the unconstitutional-conditions doctrine does not render any funding
condition that may affect the exercise of constitutional rights unconstitutional. See AOSI, 570
U.S. at 214 (citing United States v. Am. Library Ass’n., Inc., 539 U.S. 194 (2003) (plurality
opinion), and Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546
(1983)). Rather, “the relevant distinction” is whether the conditions “define the limits of the
government spending program” or are “outside the contours of the program itself.” Id. at 214-
15. In determining on which side of the line a condition falls, the Supreme Court distinguishes
between conditions that regulate the government-funded project and conditions that regulate the
recipient of government funds. See Rust v. Sullivan, 500 U.S. 173, 197 (1991) (“[O]ur
‘unconstitutional conditions’ cases involve situations in which the Government has placed a
condition on the recipient of the subsidy rather than on a particular program or service, thus
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 21
effectively prohibiting the recipient from engaging in the protected conduct outside the scope of
the federally funded program.”).
In AOSI, the Supreme Court invalidated a statutory provision requiring organizations
receiving funds under a program designed to combat AIDS and HIV to have a policy explicitly
opposing prostitution and sex trafficking. 570 U.S. at 210, 221. The Court first noted that
“[w]ere [the Policy Requirement] enacted as a direct regulation of speech, [it] would plainly
violate the First Amendment.” Id. at 213. This did not end the inquiry, however. The Court
then asked whether the conditions “define the federal program” or “reach outside it,” id. at 217,
and explained that “[b]y demanding that funding recipients adopt—as their own—the
Government’s view on an issue of public concern, the condition by its very nature affects
‘protected conduct outside the scope of the federally funded program,’” id. at 218 (quoting Rust,
500 U.S. at 197). This was because, under the statutory condition, a funding recipient could not
“avow the belief dictated by the Policy Requirement when spending [federal program] funds, and
then turn around and assert a contrary belief, or claim neutrality, when participating in activities
on its own time and dime.” Id. at 218. Thus, “[b]y requiring recipients to profess a specific
belief, the Policy Requirement goes beyond defining the limits of the federally funded program
to defining the recipient.” Id. (citing Rust, 500 U.S. at 197).
A straightforward application of these principles establishes the Statute’s
unconstitutionality. First, ODH could not impose the conduct provision as a direct regulation,
because to do so would mean passing a law prohibiting the performance of nontherapeutic
abortions. There is no dispute that outlawing abortions in Ohio would be an undue burden on
women’s ability to access the procedure in that state. Even if the direct regulation were limited
to Plaintiffs—a constitutionally dubious maneuver as well, see Planned Parenthood of Cent.
N.C. v. Cansler, 877 F. Supp. 2d 310, 327 (M.D.N.C. 2012)—ODH never contested Plaintiffs’
argument that a ban on their providing nontherapeutic abortions would impose an undue burden
on women seeking abortions in Ohio.7
7Plaintiffs consistently argued that their ceasing to perform abortions would impose an undue burden on
women seeking abortion due to the reduction in abortion services available to the women of Ohio. Despite multiple
opportunities in several rounds of briefing before the district court and this court, ODH never attempted to explain
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 22
Second, the Supreme Court explained that permissible “conditions that define the limits
of the government spending program” are “those that specify the activities Congress wants to
subsidize.” AOSI, 570 U.S. at 214. The condition contained in the conduct provision of
§ 3701.034, however, does not “define the limits” of the six federal programs at issue because
those programs have nothing to do with abortion. Indeed, federal and Ohio law already mandate
that funds from those six programs, or any other government funds, cannot be used to subsidize
nontherapeutic abortion. Thus, there is no question that this condition “reach[es] outside” the six
federal programs and therefore constitutes an unconstitutional condition. See id. at 214-15.
ODH disputes this conclusion, arguing that the conduct provision of § 3701.034 comports
with due process under Maher v. Roe, 432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 297
(1980), and Rust, 500 U.S. 173. But these cases merely establish that the government is under no
obligation to subsidize abortion or abortion counseling by including coverage for abortion or
abortion counseling in public-benefits programs. Maher, 432 U.S. at 470-71, 474 (rejecting
challenge to regulation limiting state Medicaid benefits for first-trimester abortions to those that
are medically necessary); McRae, 448 U.S. at 322-23 (rejecting challenge to Hyde Amendment’s
limitation of Medicaid funding to those abortions necessary to save life of mother or cases of
rape or incest, while permitting funding of costs associated with childbirth); Rust, 500 U.S. at
192-94 (rejecting challenge to regulations providing that Title X family-planning funds could not
be used to fund family-planning programs where abortion is a method of family planning). That
principle is not at issue here because the six federal programs are completely divorced from
abortion or family planning.
Rust, in fact, teaches why § 3701.034 is impermissible. Rust involved Title X, which
“provides federal funding for family-planning services.” 500 U.S. at 178. The regulations at
issue prevented recipients from using Title X funds to engage in abortion advocacy and
why Plaintiffs’ ceasing to perform abortions would not cause an undue burden, instead calling the argument
“irrelevant.” (R. 53, PID 2055.) At oral argument before the en banc court, ODH acknowledged that it never
briefed the issue but summarily argued in rebuttal that it was “pretty sure we not only do dispute that, but we’d come
out on the better side of it.” (Oct. 3, 2018, Oral Arg. 58:58-59:43.) Because a party’s claiming to be “pretty sure”
that it would dispute an issue despite never briefing that issue is insufficient to preserve the issue for appeal, ODH
forfeited the argument that Plaintiffs’ ceasing to perform abortions would not result in an undue burden. See United
States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 758 (6th Cir. 1999); Thaddeus-X v. Blatter, 175 F.3d 378, 403
n.18 (6th Cir. 1999) (en banc).
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counseling. Id. at 196. Because Title X was a program meant to encourage family-planning
services leading to conception and childbirth, and thus discourage abortion, the regulations were
permissible in part because they were “designed to ensure that the limits of the federal program
are observed.” Id. at 193. In contrast, the six federal programs here have nothing to do with
family planning or abortion.
Further, in rejecting the plaintiffs’ unconstitutional-conditions challenge to the
regulations, the Rust Court explained that the Supreme Court’s “‘unconstitutional conditions’
cases involve situations in which the Government has placed a condition on the recipient of the
subsidy rather than on a particular program or service, thus effectively prohibiting the recipient
from engaging in the protected conduct outside the scope of the federally funded program.” Id.
at 197. That is precisely what § 3701.034 does; it places conditions on Plaintiffs—the recipients
of the subsidies—that prohibit them from engaging in protected conduct outside the scope of the
six federal programs.
Finally, it was critical in Rust that the regulations did not deny “the right to engage in
abortion-related activities” as a condition of receiving funding. Id. at 198. The regulations were
constitutional because they “govern[ed] the scope of the Title X project’s activities,” while
“leav[ing] the grantee unfettered in its other activities. The Title X grantee can continue to
perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply
is required to conduct those activities through programs that are separate and independent from
the project that receives Title X funds.” Id. at 196. In contrast, § 3701.034’s whole purpose is to
fetter Plaintiffs in their other (i.e., abortion-related) activities, which are unrelated to the
government-funded programs. Similarly, in FCC v. League of Women Voters of California,
468 U.S. 364, 400 (1984), the Supreme Court struck down a law barring recipients of
government funds from engaging in editorializing because the law barred funding recipients
“from using even wholly private funds to finance its editorial activity.” But the Court noted that
such a law would have been permissible if it allowed the recipient “to establish ‘affiliate’
organizations which could then use the station’s facilities to editorialize with nonfederal funds.”
Id. Here, § 3701.034 expressly precludes funding recipients from being an affiliate of any entity
that performs or promotes nontherapeutic abortions. See also Planned Parenthood of Mid-Mo.
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& E. Kan., Inc. v. Dempsey, 167 F.3d 458, 463 (8th Cir. 1999) (explaining that a law prohibiting
recipients of state family-planning funds from having independent abortion-provider affiliates
“would cross the line established in Rust, League of Women Voters, and Regan, and hence be an
unconstitutional condition”).
In sum, none of the numerous reasons that the regulations in Rust were upheld is present
here: § 3701.034 does not define the scope of the federal programs; and it does not distinguish
between the programs and the grantee, restricting only the former, while permitting the latter to
“continue to perform abortions, provide abortion-related services, and engage in abortion
advocacy . . . through programs that are separate and independent from the project[s] that
receive[] the [six program funds].” Rust, 500 U.S. at 196.
For all of these reasons, § 3701.034’s conduct provision is unconstitutional.
2.
The majority avoids more than a cursory discussion of the principles underlying the
unconstitutional-conditions doctrine by finding that Plaintiffs’ purported lack of an independent
constitutional right to perform abortions is dispositive. As discussed above, the Supreme Court
label of the provider’s constitutional right as “derivative of the woman’s position,” 505 U.S. at
884, is a statement about the source of an abortion provider’s constitutional right—not a denial
that the provider has a constitutionally protected interest.
However, even accepting that Plaintiffs have no wholly independent constitutional right
to perform abortions, but see, e.g., Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245,
1258-60 (10th Cir. 2016) (noting that Planned Parenthood Association of Utah alleged, “without
serious challenge from defendants, a Fourteenth Amendment right” “to provide . . . abortion
services”); Dempsey, 167 F.3d at 464 (addressing the effect of the challenged Missouri law on
“Planned Parenthood’s constitutional right[]” to “provide abortion services”); Planned
Parenthood v. Doyle, 162 F.3d 463, 471 (7th Cir. 1998) (“The constitutional right to an abortion
carries with it the right to perform medical procedures that many people find distasteful or
worse.”); Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 944 (9th Cir. 1983)
(determining “whether the State unduly interfered with Planned Parenthood’s exercise of its right
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 25
to perform abortion and abortion-related services”), it does not follow that the Constitution is
indifferent to laws that condition the grant of unrelated public funds on the abandonment of all
abortion-related activity. Treating the lack of a personally held, independent right divorced from
a woman’s abortion right as a bar to Plaintiffs in this case has dire implications for abortion
providers in this circuit and is inconsistent with the purpose behind the unconstitutional-
conditions doctrine for at least two reasons.
First, it is worth noting that the Supreme Court has not always couched the
unconstitutional conditions doctrine in rights-based language, referring instead to “protected
conduct,” Rust, 500 U.S. at 197, or “constitutionally protected interests,” Perry, 408 U.S. at 597.
Even if providers have no right of their own to provide abortions, surely providing women with
abortions free from undue governmental interference falls into the category of constitutionally
protected conduct.
Second, as discussed above, and as the majority acknowledges (see Maj. Op. at 8), one of
the purposes of the unconstitutional-conditions doctrine is to prevent the government from
achieving indirectly—by conditioning unrelated funds on forgoing constitutionally protected
activity—what the government cannot achieve directly. But the majority says that is not what is
happening here because “the government could have directly ordered the outcome it wishes to
incentivize” in this case. (Maj. Op. at 9.) The majority does not explain how Ohio could directly
order the outcome it wishes to incentivize—that Ohio’s healthcare providers cease performing
abortions. And even if the direct regulation could constitutionally be limited to Plaintiffs alone,
ODH never challenged either in the district court or its briefing in this court, until en banc
argument, that barring Plaintiffs from performing abortions would place an undue burden on
women seeking abortion given the existing abortion providers in the area. There is no doubt that
if Ohio ordered either ban directly, Plaintiffs would be able to challenge that law on due process
grounds. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (granting relief to
plaintiff abortion providers who challenged on due process grounds regulations imposed on their
services); see also Singleton, 428 U.S. at 117-18 (explaining that abortion providers may “assert
the rights of women patients as against governmental interference with the abortion decision”
because “[a] woman cannot safely secure an abortion without the aid of a physician,” “the
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 26
constitutionally protected abortion decision is one in which the physician is intimately involved,”
and “there are several obstacles” to the woman asserting her own rights); Craig v. Boren,
429 U.S. 190, 195 (1976) (noting that service providers “have been uniformly permitted to resist
efforts at restricting their operations by acting as advocates of the rights of third parties who seek
access to their market or function”).
Thus, there is no reason why Plaintiffs cannot prevail on an unconstitutional-conditions
claim in this case. The Supreme Court has never suggested that the government can impose a
condition on a third party to induce a result that would be unconstitutional if the condition were
imposed directly on a party whose rights are affected.8 Nor has the Supreme Court suggested
that an entity that could challenge a direct regulation could not prevail in challenging the
government’s attempt to reach the same result through a condition imposed on unrelated funding.
Consider the examples of the constitutional rights to counsel, to vote, and to bear arms. These
rights belong to the criminal defendant, the voter, and the gun owner, respectively. Imagine that
the government barred lawyers who represent indigent defendants from eligibility for loan
forgiveness programs, denied all government funding to private entities that volunteer to serve as
polling places in low-income neighborhoods, or ceased providing all existing tax breaks,
subsidies, and government benefits to any store that sells guns. By the majority’s logic, as long
as the beleaguered lawyers, polling places, and gun store owners continue to perform these
services, no one could successfully challenge the constitutionality of these laws based on the
protected rights.9
8The unconstitutional-conditions cases that the Supreme Court has addressed thus far have involved
plaintiffs’ challenges to conditions that impact their own, personal constitutional rights. See, e.g., Koontz, 570 U.S.
595; AOSI, 570 U.S. 205; Rust, 500 U.S. 173; Regan, 461 U.S. 540; Mem’l Hosp. v. Maricopa County, 415 U.S. 250
(1974). But the fact that the Court has only had the opportunity to consider cases where a recipient’s own
constitutional rights were at issue does not mean that its cases “confirm” that a “benefits condition becomes
unconstitutional only when it violates a recipient’s constitutional rights.” (Maj. Op. at 6 (emphasis added).) Those
cases just confirm that the Court can only decide the cases that come before it.
9Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), is plainly distinguishable. That case involved the
government providing funds to organizations representing indigent clients in a claim against the government for
welfare benefits, but prohibiting those same organizations from challenging existing welfare laws as
unconstitutional or unlawful in those cases. Id. at 545-47. This law violated the First Amendment, the Court
explained, because “it operates to insulate current welfare laws from constitutional scrutiny and certain other legal
challenges, a condition implicating central First Amendment concerns,” and “there is no alternative channel for
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 27
The whole point of the unconstitutional-conditions doctrine is to prevent the government
from achieving indirectly what it cannot constitutionally achieve directly. And because Plaintiffs
could succeed on a due process challenge against the direct version of this law, they can likewise
challenge the indirect version as an unconstitutional condition. The majority’s position
contravenes the purpose of the unconstitutional-conditions doctrine.10
ODH also asserts (and it appears the majority agrees) that the unconstitutional-conditions
doctrine, at most, bars unconstitutional conditions only when they actually operate to impose an
undue burden, and, the argument goes, § 3701.034 imposes no such undue burden because
Plaintiffs’ representatives testified that Plaintiffs would continue to perform abortions even if the
law goes into effect. ODH relies on the Seventh Circuit’s divided opinion in Planned
Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d
962 (7th Cir. 2012) (hereafter PPI).11
There, PPI, a Medicaid provider that performs abortions, one of its doctors, and two low-
income patients who used its services, brought suit under 42 U.S.C. § 1983, challenging the
constitutionality of an Indiana law that prohibited state agencies from contracting with or making
grants to any entity that performs abortions. In addressing PPI’s unconstitutional-conditions
claim, the panel majority reasoned:
[T]he government need not be neutral between abortion providers and other
medical providers, and this principle is particularly well-established in the context
of governmental decisions regarding the use of public funds. As long as the
difference in treatment does not unduly burden a woman’s right to obtain an
abortion, the government is free to treat abortion providers differently.
expression of the advocacy Congress seeks to restrict.” Id. at 546-47. No such argument could be made about a law
stripping loan forgiveness eligibility from attorneys who represent indigent defendants.
10Nor would affirming the district court “effectively [be] saying” that abortion providers “have a
constitutional right to offer abortions.” (Maj. Op. at 9.) It would merely be saying that states cannot strip an entity
of funding that is unrelated to abortion solely because that entity provides abortions on its “own time and dime.”
See AOSI, 570 U.S. at 218.
11The majority’s reliance on the Seventh Circuit “reject[ing] an unconstitutional-conditions challenge to an
Indiana law with a conduct component identical in every material way to this Ohio law” (Maj. Op. at 7) ignores that
the law at issue in PPI did not prohibit funding for any entity that promotes abortions or, more critically, any entity
that affiliates with an entity that promotes or performs abortions. See PPI, 699 F.3d at 967.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 28
Applying these principles here, the unconstitutional-conditions claim is not likely
to succeed. Planned Parenthood does not argue that the loss of its block-grant
funding imposes an undue burden—directly or indirectly—on a woman’s right to
obtain an abortion. If . . . the government’s refusal to subsidize abortion does not
unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public
funding of abortion providers—even for unrelated services—cannot indirectly
burden a woman’s right to obtain an abortion.
PPI, 699 F.3d at 988.
The Seventh Circuit’s analysis avoids the unconstitutional-conditions argument by
looking at the effect on a woman’s right to obtain an abortion if the provider does not submit to
the condition and continues providing abortions. That is not the appropriate analysis. In AOSI,
for example, the Supreme Court did not hold that the organizations’ First Amendment rights
were not violated because they could simply decline the funding and continue to have whatever
policy they wanted about prostitution and sex trafficking. Rather, the Court determined that the
condition, if imposed directly, would violate the Constitution. Thus, forcing the organizations to
have a policy opposing prostitution and sex trafficking to obtain the relevant funding violated the
First Amendment, just as forcing Plaintiffs here to refrain from performing abortions to obtain
unrelated funding would violate the Due Process Clause. This is because the unconstitutional-
conditions doctrine prohibits the imposition of the condition itself and does not require the party
to actually submit to the condition to prevail. AOSI, 570 U.S. at 214 (explaining that government
action need not be “actually coercive” to qualify as an unconstitutional condition); see also
Koontz, 570 U.S. at 607 (“As in other unconstitutional conditions cases in which someone
refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of
a governmental benefit is a constitutionally cognizable injury.”). 12 In contrast to the Seventh
Circuit’s holding in PPI, this court has already held that whether an entity acquiesces to the
government’s proposed condition is “irrelevant” to the condition’s constitutionality. R.S.W.W.,
397 F.3d at 436. Yet the majority perplexingly suggests that even a condition imposed directly
on women to choose between having an abortion and receiving government benefits could be
constitutional if women would choose to cease receiving government benefits. (Maj. Op. at 8
(“[T]he doctrine would prohibit the State from requiring women to forfeit benefits if they chose
12PPI was decided before Koontz and AOSI, which may account for its flawed analysis.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 29
to obtain an abortion and if that limitation unduly burdened their access to abortion
services.”).)13
The PPI majority also failed to recognize Rust’s distinction between conditions placed on
the government program and those imposed on the recipient. And although in summarizing Rust
the PPI majority seems to recognize that Rust treated the unconstitutional-conditions argument
as separate from the undue-burden analysis,14 the PPI majority engaged in no substantive
discussion of Rust’s treatment of the separate unconstitutional-conditions claim. See 699 F.3d at
987-88. Rather, the PPI majority’s entire discussion of the unconstitutional-conditions claim
rested on the undisputed propositions that the government can constitutionally allocate funds in a
manner that favors childbirth over abortion; that there is no constitutional requirement that the
government subsidize abortion; and that denying funding for abortion does not unduly burden a
woman’s constitutional right to choose to have an abortion. The PPI majority concludes by
quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 59-60 (2006):
“It is clear that a funding condition cannot be unconstitutional if it could be constitutionally
imposed directly.” 699 F.3d at 988.
The unstated conclusion holding the PPI majority’s opinion together is that because the
government need not subsidize abortion and need not be neutral between abortion providers and
other medical providers, particularly with respect to government funds, the government could
directly prohibit providers from performing abortions. Of course, this is not the case. The cited
cases15 establish that the government can prohibit PPI or other abortion providers from using
program funds to perform or advocate for abortion. But nowhere does Rust or any other case
13This suggestion would have particularly troubling implications. It seems that the majority would never
allow a facial challenge claiming that a statute imposed an unconstitutional condition on a woman’s abortion right,
because the answer to whether a statute will create an undue burden is always “[m]aybe; maybe not.” (Maj. Op. at
11.) This is antithetical to this court’s precedent, see R.S.W.W., 397 F.3d at 436, and antithetical to the purpose of
the doctrine, see, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1377 n.4
(2018) (“The doctrine prevents the Government from using conditions ‘to produce a result which it could not
command directly.’” (quoting Perry, 408 U.S. at 597)).
14The PPI majority stated: “Because the Title X regulations did not place an undue burden on a woman’s
right to obtain an abortion or otherwise impose an unconstitutional condition on grant recipients, the Court upheld
the regulatory scheme.” 699 F.3d at 988 (emphasis added).
15Maher, 432 U.S. 464; Harris, 448 U.S. 297; Rust, 500 U.S. 173; and Webster v. Reprod. Health Servs.,
492 U.S. 490 (1989).
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 30
suggest that the government can condition the receipt of unrelated funds on a recipient’s
abandoning all activities that facilitate a woman’s right to obtain an abortion, or that advocate for
such a right, and any affiliation with any entity that does either. Courts considering similar
issues post-AOSI have not followed the Seventh Circuit’s (or the majority’s) analysis. See, e.g.,
Planned Parenthood of Sw. & Cent. Fla. v. Philip, 194 F. Supp. 3d 1213, 1218-19 (N.D. Fla.
2016) (“If, as the Court said in Rust, Congress can prohibit the use of federal funds for abortion
services but cannot restrict a recipient of federal funds from separately providing abortion
services, then the Florida legislature likewise can prohibit the use of state funds for abortion
services but cannot prohibit a recipient of state funds from separately providing abortion
services.”); Cansler, 877 F. Supp. 2d at 320-21 (enjoining law that denied non-abortion-related
funding based on Planned Parenthood’s activity as an abortion-rights advocate and abortion
provider under the unconstitutional-conditions doctrine).16
I agree with the majority that “[t]he point of the [unconstitutional-conditions] doctrine is
to protect the underlying right: a woman’s right of access to abortion services without an undue
burden.” (Maj. Op. at 11–12.) But the majority creates a loophole that enables states to
circumvent the unconstitutional-conditions doctrine: the government cannot leverage its funding
to carve away at constitutional rights by passing laws that target the individual who holds the
right, but it can leverage funding to achieve that same result so long as it manages to find a proxy
to target instead. The majority’s reasoning contorts a doctrine that aims to prevent the
government from manipulating rights out of existence, Frost, 271 U.S. at 593-94, to permit the
State to leverage its funding to launch a thinly veiled attack on women’s rights so long as it
16The majority’s suggestion that Teixeira v. County of Alameda, 873 F.3d 670, 689-90 (9th Cir. 2017) (en
banc), supports its understanding of the unconstitutional-conditions doctrine is unpersuasive. Teixeira does not
expressly address the unconstitutional-conditions doctrine, but the law at issue there placed conditions on the sale of
firearms in the form of zoning restrictions. In Teixeira, the Ninth Circuit found that “the Second Amendment does
not independently protect a proprietor’s right to sell firearms,” id. at 690, and still it held that “Teixeira, as the
would-be operator of a gun store, . . . has derivative standing to assert the subsidiary right to acquire arms on behalf
of his potential customers,” id. at 678. That is exactly what Plaintiffs argue here. Moreover, the only reason the
Ninth Circuit found there was no constitutional violation in Teixeira is that, even if the store was entirely prevented
from selling guns, its customers’ Second Amendment rights would not be infringed. Id. at 679-81. In contrast,
ODH never contested below that women’s abortion rights would be violated if Plaintiffs were prevented from
performing abortions. To the extent Teixeira can be read as instructive, its reasoning supports Plaintiffs’ view of the
unconstitutional-conditions doctrine, not the majority’s.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 31
camouflages its unconstitutional condition in provider-focused verbiage. This strikes me as
exactly the type of maneuver the doctrine seeks to prevent.
At bottom, ODH’s position and the majority’s opinion open the door for the government
to impose almost any condition17 it wants on abortion providers so long as the abortion providers
resist the coercion and continue to perform abortions. At oral argument, the United States,
arguing in favor of ODH’s position, acknowledged that ODH’s position would authorize the
government to pass a law prohibiting all doctors who perform abortions from providing any
other medical services. (Oral Arg. at 33:10-35:30.) This is because as long as enough doctors
continue to perform abortions, there would be no undue burden on a woman’s right to obtain
one. (Id.) And under the majority’s reasoning, the doctors could not challenge the law as an
unconstitutional condition because they have no due process right to provide abortions. Other
hypotheticals are imaginable, which before today would have seemed absurd. Using this
reasoning, the government can do almost anything it wants to penalize abortion providers so long
as they resist the coercion and continue to perform abortions. (Id.)
This result is especially striking in juxtaposition with the Supreme Court’s abortion
jurisprudence over the last three decades, which reveals that virtually every attempt to ban or
undermine a woman’s abortion right since Roe v. Wade has operated by targeting providers, not
women. See, e.g., Whole Woman’s Health, 136 S. Ct. 2292 (imposing admitting-privileges and
surgical-center requirements on providers); Stenberg v. Carhart, 530 U.S. 914 (2000)
(criminalizing providers’ performance of particular abortion procedures); Casey, 505 U.S. 833
(imposing civil penalties on providers who perform abortions without receiving signed statement
of spousal consent); Hodgson v. Minnesota, 497 U.S. 417 (1990) (criminalizing providers’
performance of abortions on minors without both parents’ consent). Those laws, each of which
was struck down as unconstitutional, reflect a basic reality that legislatures seeking to undermine
abortion rights have long understood: when a constitutional right requires a third party to
vindicate it, a restriction imposed on that indispensable third party effectively restricts the
rightholder. That is why the Constitution prohibits unduly burdening a woman’s abortion right,
even in the form of laws that directly target only the gatekeeper to a woman’s abortion right—
17Subject only to rational basis review, according to the United States.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 32
her provider. The impact of the condition is the same, because the provider is the target in name
only. In practice, the provider is merely a proxy for the woman and her constitutional rights.
Because the unconstitutional-conditions doctrine does not allow the government to
penalize a party indispensable to the exercise of a constitutional right so long as the party refuses
to cry uncle and submit to the condition, the conduct provision is unconstitutional.
B. First Amendment Claims
The majority does not reach Plaintiffs’ patently meritorious First Amendment claims,
reasoning that because the conduct provision does not impose an unconstitutional burden, ODH
may deny funding under the Statute without regard to whether the Statute violates Plaintiffs’
First Amendment rights. But Plaintiffs’ First Amendment claims are not mooted by the
purported constitutionality of the conduct provision, and a decision on the First Amendment
claims is not rendered advisory by the majority’s decision on the conduct provision. If the First
Amendment challenge is successful, Plaintiffs could form affiliate entities to take over their
abortion-related activities (see Pls.’ Br. on Reh’g at 18-19), and still receive funds under the six
federal programs. In any event, because the conduct provision is unconstitutional, I address
Plaintiffs’ First Amendment claims as well.
Plaintiffs assert two claims under the First Amendment, addressing both § 3701.034’s
speech provision—which prohibits the allocation of program funds to any entity that promotes
nontherapeutic abortions—and its affiliation provision—which prohibits the allocation of
program funds to any entity that affiliates with any entity that performs or promotes
nontherapeutic abortions. It is undisputed that a funding condition can result in an
unconstitutional burden on First Amendment rights. See AOSI, 570 U.S. at 218 (“By requiring
recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of
the federally funded program to defining the recipient.”); Rumsfeld, 547 U.S. at 59 (the First
Amendment supplies “a limit on Congress’ ability to place conditions on the receipt of funds”).
Plaintiffs’ First Amendment claim is not vulnerable to attack under either of the
rationales the majority appears to adopt in analyzing the due process claim. Plaintiffs are
asserting their own First Amendment rights and need not show that a restriction amounts to an
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 33
undue burden on a woman’s right to obtain an abortion to prevail on a claim under the First
Amendment. Nor does ODH dispute that it would be unconstitutional to legislate a direct ban on
promoting nontherapeutic abortions or affiliating with entities that perform or promote
nontherapeutic abortions.
Instead, relying on Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs,
692 F.3d 343 (5th Cir. 2012), ODH argues that the Statute’s speech provision does no more than
is constitutionally permissible by seeking “to ensure that contractors who convey Ohio’s
messages do so efficiently and effectively.” (Appellant’s Br. at 52-53 (citation and internal
quotation marks omitted).) This argument is unpersuasive.
In Suehs, the Texas legislature had created the “Women’s Health Program (WHP),”
designed to “expand access to preventative health and family planning services for women.”
692 F.3d. at 346 (internal quotation marks and citation omitted). The Texas legislature
prohibited the Texas Health and Human Services Commission (THHSC), which administers the
WHP, from contracting with “entities that perform or promote elective abortions or are affiliates
of entities that perform or promote elective abortions.” Id. (internal quotation marks and citation
omitted). The plaintiff health-clinic operators alleged that the regulations violated their First
Amendment rights of free-speech and association, and the Fourteenth Amendment’s guarantee of
equal protection. Applying the unconstitutional-conditions doctrine, the district court determined
that the regulations likely violated these constitutionally guaranteed rights and issued a
preliminary injunction. The Fifth Circuit vacated the preliminary injunction and remanded,
explaining:
Texas’s restriction on promoting elective abortions directly regulates the content
of the WHP as a state program. The policy expressed in the WHP is for public
funds to subsidize non-abortion family planning speech to the exclusion of
abortion speech. § 1.19(b), 2011 Tex. Gen. Laws at 335. Texas’s authority to
promote that policy would be meaningless if it were forced to enlist organizations
as health care providers and message-bearers that were also abortion advocates.
The authority of Texas to disfavor abortion within its own subsidized program is
not violative of the First Amendment right, as interpreted by Rust v. Sullivan.
Consequently, Texas’s choice to disfavor abortion does not unconstitutionally
penalize the appellees’ speech.
Suehs, 692 F.3d at 350.
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 34
I agree with the district court that this out-of-circuit precedent is distinguishable and
inapposite. Suehs is virtually indistinguishable from Rust because, as the Fifth Circuit observed,
Texas’s restriction “directly regulates the content of the WHP as a state program.” Id. Here,
however, § 3701.034 does not regulate, and has no relation to, the content of the six federal
programs.
Further, although Ohio, like Texas, may, consistent with the First Amendment, ensure
that its message favoring childbirth over abortion is not garbled, this case plainly involves no
state “message” related to or regarding abortion; § 3701.034 affects programs that have nothing
to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech
outside of those six government programs.
As the Supreme Court made clear in AOSI, the government may not prevent a recipient of
government funding from expressing its own views “when participating in activities on its own
time and dime.” 570 U.S. at 218. Because “the conditions imposed by Section 3701.034 seek to
leverage funding to regulate speech outside the contours of the six programs impacted by Section
3701.034,” the unconstitutional-conditions doctrine applies. Planned Parenthood of Greater
Ohio, 201 F. Supp. 3d at 906. Therefore, the district court correctly determined that § 3701.034
violates the First Amendment by conditioning participation in funding for these programs on a
recipient’s forgoing the exercise of its rights of free speech outside these programs. See AOSI,
570 U.S. at 218; see also Dempsey, 167 F.3d at 462 (“Legislation that simply dictates the proper
scope of government-funded programs is constitutional, while legislation that restricts protected
grantee activities outside government programs is unconstitutional . . . .”); Planned Parenthood
of Cent. & N. Ariz., 718 F.2d at 944 (although the state need not fund abortions, the state “may
not unreasonably interfere with the right of Planned Parenthood to engage in abortion or
abortion-related speech activities”).
Finally, by conditioning participation in the six federal programs on refraining from
being an affiliate of any entity that promotes or performs nontherapeutic abortions, the Statute
effects a separate First Amendment violation of Plaintiffs’ right to free association. See Runyon
v. McCrary, 427 U.S. 160, 175 (1976) (“[T]he Court has recognized a First Amendment right to
‘engage in association for the advancement of beliefs and ideas[.]’ That right is protected
No. 16-4027 Planned Parenthood of Greater Ohio et al. v. Hodges Page 35
because it promotes and may well be essential to the ‘[e]ffective advocacy of both public and
private points of view, particularly controversial ones’ that the First Amendment is designed to
foster.” (third alteration in original) (internal citation omitted) (quoting NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449, 460 (1958))). Plaintiffs are affiliates of PPFA, which advocates for
women’s access to comprehensive reproductive healthcare, including abortion. Thus, even if
Plaintiffs ceased performing and promoting nontherapeutic abortions or transferred those
functions to an affiliate, the affiliation provision would still prohibit them from obtaining funds
under the six federal programs due to their status as affiliates of PPFA. See AOSI, 570 U.S. at
215 (explaining that the funding condition at issue in Regan, 461 U.S. 540, did not violate the
unconstitutional-conditions doctrine because the organization retained the ability to “return[] to a
‘dual structure’ it had used in the past”). ODH offers no argument for the constitutionality of
this provision aside from those offered to defend the speech provision. For the same reasons, the
affiliation provision also imposes an unconstitutional condition.
IV. ENTRY OF PERMANENT INJUNCTION
ODH conceded that it “agrees that if this Court finds the Conduct and Speech Provisions
both unconstitutional,” the permanent injunction factors are met. (Reply Br. at 29.)
V. CONCLUSION
For the reasons stated, the district court correctly granted Plaintiffs’ motions for judgment
on the merits and for a permanent injunction. Its decision should be affirmed.
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FILE COPY
No. 07-15-00376-CR
Ex Parte Samuel Aleman Pineda § From the 140th District Court
of Lubbock County
§
October 27, 2015
§
Opinion Per Curiam
§
J U D G M E N T
Pursuant to the opinion of the Court dated October 27, 2015, it is ordered,
adjudged and decreed that this appeal be dismissed for want of jurisdiction.
Inasmuch as this is an appeal in forma pauperis, no costs beyond those that
have been paid are adjudged.
It is further ordered that this decision be certified below for observance.
oOo
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95 Ga. App. 122 (1957)
97 S.E.2d 193
POWELL
v.
POWELL.
36566.
Court of Appeals of Georgia.
Decided February 12, 1957.
E. L. Stephens, Jr., Beverly B. Hayes, for plaintiff in error.
Buckner F. Melton, contra.
TOWNSEND, J.
"No affidavit of illegality shall be received by any sheriff, or other executing officer, until a levy shall have been made." Code § 39-1003. An affidavit of illegality interposed by the defendant in the main case to a garnishment proceeding should be dismissed where it does not appear that there was any levy upon the property of the defendant. Carter v. Alma State Bank, 34 Ga. App. 766 (131 S. E. 184); Jackson v. v. Barksdale, 17 Ga. App. 461 (87 S. E. 691); McClenton v. Wetherington, 89 Ga. App. 61 (78 S. E. 2d 550). From the record in this case it appears only that the defendant in error obtained an alimony judgment against the plaintiff in error and then issued a garnishment based on this judgment naming Royal Management Company as garnishee; that the plaintiff in error filed an affidavit of illegality under Code § 39-1001 *123 contending that the garnishment was proceeding illegally because he had paid the judgment in full; that this affidavit was ignored by the defendant in error and when the case was called for trial the plaintiff in error moved that judgment be entered in his favor because the defendant in error had not controverted the allegations of the affidavit as required by Code § 39-1006, whereupon the court denied the motion and granted a two day continuance, during which time the defendant in error did file a traverse, and the case then proceeded to a jury trial and verdict in favor of the defendant in error, the judgment creditor. No motion for new trial was made and no error is assigned on the final judgment except insofar as it is erroneous because the previous erroneous ruling entered into and affected the further progress and final result of the case.
A garnishment proceeding is a separate and distinct case against a separate party and for an entirely new cause of action. The defendant in the main case, if he wishes to contest the garnishment in his own name, should follow the proceeding outlined in Code § 46-401 by means of a dissolution bond, and in such event the bond changes the parties by changing the issue from one between the plaintiff and the garnishee to an issue between the plaintiff and the defendant. Jackson v. Hogan, 18 Ga. App. 219 (2) (89 S. E. 184); Rainey v. Eatonton Co-Op Creamery, 69 Ga. App. 547 (1) (26 S. E. 2d 297); Pope v. United States Fidelity &c. Co., 67 Ga. App. 560 (1) (21 S. E. 2d 289). It does not appear that this procedure was followed.
Pretermitting the question of whether the plaintiff in error, under the circumstances here set forth, has a right to appeal, and to prosecute the same without naming the garnishee, who is the proper defendant, as a party in the bill of exceptions, and also passing over the question of error in the conduct of the case in allowing a continuance for the purpose of filing an answer to a legally unpermissible pleading, the plaintiff in error nevertheless shows no error of which he has any right to complain, and the judgment of the court will for this reason alone be
Affirmed. Gardner, P. J., and Carlisle, J., concur.
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493 F.Supp. 418 (1980)
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff,
v.
DEPARTMENT OF STATE et al., Defendants.
Civ. A. No. 77-1320.
United States District Court, District of Columbia.
June 19, 1980.
*419 Andra N. Oakes, William A. Dobrovir, Washington, D. C., for plaintiff.
Stephen S. Cowen, Asst. U. S. Atty., U. S. District Court, Washington, D. C., for defendants.
MEMORANDUM OPINION AND ORDER
AUBREY E. ROBINSON, District Judge.
This suit was brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq., by the Church of Scientology against the Department of State, et al. Before the Court are Defendants' Motion for Summary Judgment and Plaintiff's Motion for More Detailed Justification, Additional Records and Reconsideration of the Court's Protective Order. This Court has jurisdiction under 5 U.S.C. § 552(a)(4)(B) and Rule 56 of the Federal Rules of Civil Procedure. There are four issues involved: (1) is Defendants' index adequate, (2) have Defendants met the segregability requirement, (3) have Defendants exercised exemptions properly, and (4) should the Court reconsider its Protective Order banning further discovery.
I. PROCEDURES FOLLOWED
As established in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), and subsequently reiterated in Ray *420 v. Turner, 587 F.2d 1187 (D.C.Cir.1978), a District Court should follow a three step procedure to assure responsible de novo review of agency action on a FOIA request. The Court in Ray v. Turner, supra, at 1191-92, summarized the steps:
(1) [The Court should require] that the agency submit a "relatively detailed analysis [of the materials withheld] in manageable segments." "[C]onclusory and generalized allegations of exemptions" would no longer be accepted by reviewing courts. . . . (2) "[A]n indexing system [that] would subdivide the document under consideration into manageable parts cross-referenced to the relevant portion of the Government's justification" . . . This index would allow the district court and opposing counsel to locate specific areas of dispute for further examination and would be an indispensible aid to the Court of Appeals reviewing the District Court's decision. (3) "[A]dequate adversary testing" would be ensured by opposing counsel's access to the information included in the agency's detailed and indexed justification and by in camera inspection, guided by the detailed affidavit and using special masters appointed by the court whenever the burden proved to be especially onerous.
This Court has not accepted abstract or conclusory claims of FOIA exemptions. In the case at bar, the Court did not accept Defendants' five initial affidavits regarding documents 1-89. Rather, on March 1, 1978, the Court ordered Defendants to submit a detailed Vaughn index for documents 1-89, subdivided into manageable parts, and cross-referenced to the government's justifications for non-disclosure. On May 3, Defendants satisfied the Court's Order by providing detailed, document-by-document descriptions of the substance of documents 1-89 divided into manageable segments. In recognition of Defendants' good faith efforts to provide non-conclusory Vaughn indexes and justifications, the Court granted Defendants' Motion for a Protective Order prohibiting further discovery. On October 2, 1978, Plaintiff requested documents referenced in material disclosed pursuant to Plaintiff's original request. In response, the government released documents 90-92 in part and documents 93-100 in full. Defendants also submitted six additional affidavits, further indexing documents 1-89 and providing more specific justifications for deletions. For documents 1-100, the original index or supplemental affidavits state (1) who prepared the document, (2) to whom it was sent, (3) when it was sent, (4) what exemptions are applicable, (5) whether the materials are segregable, (6) a description of the document, and (7) justification for the exemption. The indexing requirements for these documents have therefore been met. See Church of Scientology v. Bell, No. 76-1006, slip op. at 2 (D.D.C., Jan. 29, 1980).
Plaintiff has also asked this Court to order Defendants to provide non-conclusory Vaughn indexes for referenced documents Request Nos. 1-21 and for secondarily referenced documents ABIJAN 2824, STATE 169389, STATE 208221 and "enclosure," STATE 132692 and "report of Greek authorities." The Defendants claim that these twenty-seven documents (some of which have been released in part or in full) fall outside the scope of Plaintiff's original request. Plaintiff's original FOIA request sought all records in the Department of State concerning the Church of Scientology, and FBI records for transmission of any information on Scientology to foreign governments, Interpol or municipal agencies. The context and titles of these additional documents, which Plaintiff has specifically identified from records previously disclosed, appear directly related to the Department of State investigation of the Church of Scientology. Consequently, the documents fall within the scope of Plaintiff's FOIA request, and must be disclosed unless an adequate Vaughn index is submitted.
Plaintiff contends that Defendants have not satisfied the segregability requirement for documents 1-100. Plaintiff's assertion *421 is incorrect. In most[1] instances, only small segments of documents 1-100 have been deleted. These deletions involve names or confidential information that is clearly exempt. See discussion, infra. Moreover, Defendants have not shifted their burden of justifying non-disclosure to the Court "by sweeping, generalized claims of exemption." Mead Data Central Inc. v. USAF, 566 F.2d 242, 260 (D.C.Cir.1977). Instead, they have set forth specific descriptions of each deleted portion and have explained the reasons for each deletion. The segregability requirement has been met.
II. PARTICULAR EXEMPTIONS CLAIMED
Exemption 6 of FOIA, 5 U.S.C. § 552(b)(6), permits agencies to withhold information to protect individuals' privacy. Exemption 6 states:
(b) This section does not apply to matters that are . . . (6) personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The legislative history of Exemption 6 is informative. H.R.Rep.No.1497, 89th Cong., 2d Sess. 11 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2418, 2428 notes:
The limitation of a "clearly unwarranted invasion of privacy" provides a proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual. (emphasis added).
Similarly, the S.Rep.No.813, 89th Cong., 1st Sess., 9 (1965) explained:
The phrase "clearly unwarranted invasion of personal privacy" enunciates a policy that will involve a balancing of interests between protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public right to government information. (emphasis added).
Exemption 7(C), like Exemption 6, allows agencies to withhold material to safeguard personal privacy. Exemption 7(C) bars disclosure:
[of] investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . . . constitute an unwarranted invasion of personal privacy.
The Exemption 7(C) standard is less stringent than the Exemption 6 standard since the term "clearly" is deleted, but the purposes are similar. Church of Scientology v. Bell, supra, slip op. at 6. In the instant litigation, Defendants have withheld, pursuant to Exemptions 6 and 7(C), the identities of third persons who provided information and participated in the investigation of the Church of Scientology. Unless there is a public interest in the disclosure of names, Exemption 6 or 7(C) deletions are appropriate. Dept. of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Getman v. NLRB, 450 F.2d 670 (D.C.Cir.1971); Wine Hobby U.S.A., Inc. v. U. S. Bureau of Alcohol, Tobacco, and Firearms, 502 F.2d 133 (3d Cir. 1974). Plaintiff has not shown that a public purpose would be served by the disclosure of the names in question. Furthermore, Plaintiff has a practice of harassing its "suppressors." Some documents, such as numbers 1, 33, 81, and 87, describe bizarre situations and harsh punishments involving disenchanted Scientologists. In addition, Church leaders have been found liable for malicious prosecution and convicted of theft of government documents. See Allard v. Church of Scientology, 129 Cal.Rptr. 797 (Cal.App. 1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 537 (1977); United States v. Hubbard, 474 F.Supp. 64, 70-71 (D.D.C. 1979). Given Plaintiff's "policy and history of seeking retribution against its perceived enemies," Church of Scientology v. Bell, supra, slip op. at 4, the Exemption 6 and 7(C) claims must be upheld. Id., at 3, 4; see also Church of Scientology v. Department *422 of Army, et al., 611 F.2d 738, 744-48 (9th Cir. 1979); Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978).
Exemption 1 states that documents are exempt when they are:
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.
Executive Order 12065, which supercedes Executive Order 11652, states that documents are properly classified if their disclosure "could reasonably be expected to cause at least identifiable damage to the national security." The Order further provides that "unauthorized disclosure of foreign government information or the identity of a confidential foreign source is presumed to cause at least identifiable damage to national security." Foreign government information is defined as "information provided to the United States in confidence by, or produced by the United States pursuant to a written joint arrangement requiring confidentiality with, a foreign government or international organization of governments." Thus, if material reveals (1) information provided in confidence by a foreign government, (2) information provided by the United States to a foreign government in confidence pursuant to a written agreement, or (3) a confidential foreign source, it is exempt. See Church of Scientology v. Turner, No. 75-1048 slip op. at 4 (D.D.C. Dec. 13, 1979).
Twelve documents have been withheld pursuant to Exemption 1. The nine government affidavits indexing these documents reveal that six of the documents are verbatim copies of information provided in confidence by foreign governments. The other six documents contain information which, if disclosed, would reveal a confidential foreign source. Only this information has been withheld from the latter six documents. These affidavits are clear and convincing, and must be accorded "substantial weight" by this Court. Ray v. Turner, supra, at 1194. The Court concludes that the government properly withheld, in whole or in part, these documents.
Defendants have met the segregability requirement for six of the Exemption 1 documents, but admittedly refused to do so for the six documents provided in confidence by foreign governments. Plaintiff contends that the requirement must be met for these documents, citing Church of Scientology v. Bell, 603 F.2d 945, 950-51 (D.C.Cir.1979). This contention is misplaced. The segregation requirement exists so that information which would be disclosed but for its nexus with exempt information is provided to the FOIA Plaintiff. All information provided in confidence by foreign governments to the United States is, under terms of Executive Order 12065, exempt. This broad exemption exists because it is disclosure qua disclosure, and not disclosure of information, that would cause "at least identifiable damage to the national security." Since everything in those six documents is by definition exempt, the segregability requirement is inapplicable to them. Defendants' Exemption 1 claims prevail.
Exemption 7(D) permits an agency to withhold information contained in records compiled for law enforcement purposes if disclosure would reveal "the identity of a confidential source." See Church of Scientology v. Bell, supra, slip op. at 4. Defendants' affidavits explain, in detail, that information was withheld only if it revealed the name or identifying information of a confidential source. This information was properly withheld. Id.; U. S. v. Nix, supra, 1003-1004. Defendants have withheld one document, claiming that the information itself would reveal a foreign confidential source. This document is a report submitted by a foreign law enforcement agency in confidence. Disclosure of the information in the report would reveal the area of investigation, and therefore the source of the report. It is exempt in its entirety. See Mitsubishi Elec. Co. v. Dept. of Justice, No. 76-813, slip op. at 6 (D.D.C. April 1, 1977).
Exemption 3 provides that an agency need not release information which is:
*423 specifically exempted from disclosure by statute (other than section 552b of this title), 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.
Defendants have withheld one document pursuant to Exemption 3, relying upon Section 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f). The pertinent sections of this statute satisfy the criteria mandated by Exemption 3. Section 222(f) provides that "[t]he records of the Department of State . . . pertaining to the issuance or refusal or visas or permits to enter the United States shall be considered confidential . . .." The document in question is a permanent record of the State Department that pertains directly to Defendants' refusal to issue an entry Visa. It was therefore properly withheld pursuant to Exemption 3.
III. RECONSIDERATION OF PROTECTIVE ORDER
The Defendants have already provided extensive discovery in this litigation. In addition, the Defendants have supplied an adequate Vaughn index for documents 1-100. Finally, the Court is ordering the Government to submit a detailed Vaughn index for Request Nos. 1-21 and the six documents referenced therein. For the reasons stated, the Court maintains the Protective Order, banning further discovery in this case. An appropriate Order follows this Memorandum Opinion.
NOTES
[1] Defendants correctly contend that segregation is unnecessary for six of the twelve documents withheld pursuant to Exemption 1. See discussion, infra.
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352 F.2d 768
REGIONAL ENTERPRISES, INC., a Washington corporation, Appellant,v.TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a foreign corporation, Appellee.
No. 19979.
United States Court of Appeals Ninth Circuit.
October 26, 1965.
Joe P. Delay, Delay & Curran, Spokane, Wash., for appellant.
William V. Kelley, E. Glenn Harmon, Witherspoon, Kelley, Davenport & Toole, Spokane, Wash., Clarence E. Galston, Joel Per, New York City, for appellee.
Before JERTBERG, DUNIWAY and ELY, Circuit Judges.
ELY, Circuit Judge:
1
Appellant, plaintiff below, is the assignee of certain rights of Shadle Center, Inc., which, on August 12, 1960, entered into a contract with Teachers Insurance and Annuity Association of America. It is upon this contract and succeeding related events that appellant based its claim. The contracting parties may, in the interest of brevity, be called Shadle and Teachers. In all pertinent transactions, Shadle was represented by, and acted through, one Brown, its president. Early in 1960, Shadle embarked upon the enterprise of acquiring 23½ acres of undeveloped land and erecting a shopping center thereon. Adjacent to the undeveloped property was an existing Safeway grocery store operated under a long-term lease agreement with Metropolitan Life Insurance Company, the owner of the land on which the store was situated.
2
In the spring of 1960, Shadle commenced the solicitation of prospective tenants and had prepared its form of lease agreements. It made a lease agreement with Payless Drug Store, a partnership, and shortly thereafter, in June of 1960, entered into a contract for the erection of a building for the occupancy of the drugstore to be followed by the construction of a shopping mall. The total cost was $2,450,000, for which Shadle required interim financing. It was intended that any short-term interim loan would be repaid from funds derived from a permanent long-term loan which would be sought and obtained.
3
Shadle, for the long-term loan, had entered into negotiations with Teachers, which, in April, 1960, had caused its mortgage lending specialist, one Jenson, to come from New York City to Spokane, Washington, and discuss the project with Shadle's president. The various aspects of the project were discussed in detail, and Jenson informed Brown that Teachers could not undertake to process Shadle's loan application absent a deposit by Shadle of $40,000. Thereafter, in July 1960, one-half of this amount was forwarded to Teachers, and fifteen days later, Shadle sent to Teachers ten major leases which it had made with tenants.
4
On August 11, 1960, Teachers notified Brown by telegram that its mortgage committee had indicated general approval of a loan to Shadle of $2,000,000 for a term of twenty-two years four months and at an interest rate of 6½ percent. On the following day, an agreement dated August 12, 1960, called a "letter of commitment," was received by Brown. He signed a copy of the letter and with it, on August 22, 1960, forwarded the additional $20,000 of the required deposit to Teachers. On September 8, 1960, the Old National Bank of Washington, relying upon Teachers' commitment for the long-term loan, made a short-term interim construction loan to Shadle of $2,000,000 at an interest rate of 6½ percent. The commitment letter provided, in effect, that if Shadle performed its prescribed obligations on or before August 31, 1961, the deposit of $40,000 would be returned, and it continued, "but if you fail duly to comply herewith on or before August 31, 1961 (unless for certain conditions an earlier date is prescribed, then upon your failure to comply therewith on or before any such respective date) and without fault on our part, then the amount so paid as consideration for our agreements herein shall be retained by us in full satisfaction for our entering this Agreement and holding ourselves ready and willing to make the loan within the aforesaid time, and thereupon this Agreement shall become null and void."
5
The commitment letter required that Shadle submit all tenant leases to Teachers for the latter's approval. In Paragraph 2 of the agreement we read, "You agree to deliver, for our approval, the original leases described in the attached Schedule of Leases (Exhibit A), as well as all other leases covering portions of the center not included in our mortgage, including short form leases, existing amendments and any collateral agreements affecting the same. The original leases and other agreements shall conform in all details with the Schedule and shall otherwise be in form satisfactory to us. Evidence will also be furnished of authority of any corporate tenant (unless domestic) to do business in the state where the property is located. You further agree that after approval by us the said leases and agreements shall not be amended in any way without our consent nor rent collected thereunder more than one month in advance. The leases and agreements identified in Exhibit A shall at the time of closing be assigned to us by an instrument of assignment in form satisfactory to us."
6
The commitment letter also required that there be parking rights upon the adjoining property occupied by Safeway Stores, and the leases executed between Shadle and its tenants contained covenants to the effect that such parking rights had been arranged. It is clear, however, that as of March 29, 1961, reciprocal parking rights had not been arranged or defined between Shadle, Safeway Stores, and Metropolitan Life Insurance Company, Safeway's lessor.
7
An "inter-office memorandum" which bears the date of March 29, 1961, had been written by Teachers' legal counsel. It carefully analyzed the problems of the transaction from a legal standpoint and emphasized the writer's concern over the absence of reciprocal parking arrangements between Shadle and the owner and occupant of the adjoining property. A copy of the inter-office memorandum was, with a covering letter of Teachers' counsel dated April 11, 1961, forwarded to Shadle's president. The covering letter reads:
8
"Dear Mr. Brown:
9
I am enclosing herewith a 19 page inter-office memorandum representing recap of the current status and analysis of the subject matter. The original has been submitted to Mr. Fisher of our office and upon response from him with respect to any of the business questions presented, I will so advise you. In the interim, I would appreciate your proceeding with the remedial action indicated in respect to legal questions presented.
10
After you have had an opportunity to consider the foregoing, please call the undersigned at any time."
11
Shadle's president made no response to the letter from Teachers' attorney, as he was expressly invited to do. On the other hand, he chose to ignore the communication, and in the following month obtained a twenty-year term, $2,000,000 loan from another lender at an interest rate which, being only 5½ percent, resulted in the borrower's saving of approximately $500,000. Teachers, not being informed by Shadle of its new arrangement, continued to write Brown for progress reports. Finally, in June 1961, Teachers was notified by Shadle in a letter that Shadle "felt it was necessary to negotiate a less burdensome arrangement." Shadle made no demand for the return of the deposit of $40,000, but it expressed its belief "that a portion of our $40,000 commitment fee should be returned." Teachers refused to return any portion of the deposit. Brown and two of his brothers formed the appellant corporation, the corporation took an assignment of Shadle's rights as against Teachers, and the suit was instituted in the court below.
12
Appellant sought recovery upon three theories as follows:
13
(1) That Shadle entered into its contract with Teachers because of fraud perpetrated by the latter and that consequently it should recover the full amount of its deposit;
14
(2) That Teachers, by the inter-office memorandum of March 29, 1961, demanded of Shadle acts which were impossible of performance;
15
(3) That if Teachers is entitled to retain any portion of the deposit, it should be only that amount which is fairly compensatory under the principle of quantum meruit.
16
The district judge properly dismissed the claim insofar as it was predicated upon the assertion that Teachers had been unjustly enriched and was limited to the retention of only that portion of the deposit which was fairly representative of the services which it rendered. Teachers rendered no service to Shadle which was not essentially a service to itself. It furnished a commitment letter which was of value to Shadle in the obtaining of interim financing, but the contract evidences a clear intent of the parties that the deposit was made, not to compensate Teachers for services rendered to Shadle, but to insure the performance of Shadle's obligations in good faith and to specify a certain sum of damage in the event of Shadle's breach of the contract. That the amount was to be refunded upon completion of the contemplated loan agreement negates the contention that it, or any part of it, was to constitute payment to Teachers for services which necessarily would have already been rendered at the time the refund would have been made. The district judge correctly concluded that it was without his power to supply to Shadle a remedy not contemplated by the contracting parties and opposed to specific contractual provisions which they themselves had made at arms length and which they were obligated to respect.
17
The trial was to a jury, which, in answer to one of two special interrogatories, determined that Teachers had not fraudulently induced Shadle to make the contract evidenced by the commitment letter. The determination is abundantly supported by the evidence, and there is no merit in appellant's contention that the District Court erred in its dismissal, prior to submission to the jury, of two of the alleged grounds upon which the claim of fraud was based.1
18
Answering in the affirmative a second special interrogatory inquiring, "did the defendant [Teachers] impose conditions on the plaintiff's assignor Shadle Center Inc. in connection with the processing of the loan involved in this case which were impossible of performance?", the jury returned a general verdict in favor of Shadle's assignee assessing damages in the sum of $19,500. Both parties filed motions for judgments notwithstanding the verdict, the appellant contending that the District Court should, in the light of the jury's answer to the second special interrogatory, enter judgment in its favor for the full amount of the deposit, namely, $40,000, and Teachers contending that the evidence was insufficient to support a verdict for Shadle's assignee in any amount whatsoever. Appellant's motion was denied, and Teachers' motion was granted. This appeal followed.
19
If impossible conditions were imposed upon Shadle, they were imposed by the inter-office memorandum submitted by Teachers' counsel under date of March 29, 1961 and the covering letter with which Teachers' counsel forwarded a copy of the memorandum to Shadle's president. Appellant does not contend that Teachers presented other demands for impossible action, either orally or in writing. We have already quoted the cover letter. The inter-office memorandum consists of nineteen pages. There are seventeen numbered paragraphs, some of which contain numerous subparagraphs. Appellant specifies paragraphs 6 and 7 as those which contain the objectionable "demands." Both paragraphs are set forth in full in the footnote below.2 They contain comments relating to a foreseeable problem of the parking of automobiles and suggest the need of a reciprocal parking agreement between Shadle, Safeway Stores, and the latter's lessor. Paragraph 7 mentions the absence of limitation "on the size of the buildings, parking areas, additional buildings etc. insofar as the Safeway property is concerned" and continues, "Consequently, there may be unlimited expansion of any of the buildings thereon, with the resulting adverse affect [sic] upon the required parking ratio and requirements under our lease, as well as from an aesthetic point of view. Unlimited building within the Safeway boundaries could completely obscure a portion of the balance of the center from the main street."
20
Appellant contends that the language of the two paragraphs imposed upon Shadle additional and unreasonable obligations which were impossible of performance.3 The contentions are untenable. Considered as a whole, the memorandum is a painstaking analysis of the legal problems incident, under the then status, to a significant commercial undertaking. Its author, while fulfilling his obligation to specify legal hazards which seemed important to him, nevertheless did not presume to direct the addressee, a Teachers official, as to whether the loan should or should not be made in the exercise of discretionary business judgment and in spite of the legal objections which he had put. The last two paragraphs of the memorandum read,
21
"A copy of this memorandum is simultaneously being forwarded to the sponsors in order that we may co-ordinate our efforts in remedying any of the problems discussed above. In the interim, I would likewise appreciate receiving from you your comments in respect to any of the business questions raised herein which likewise will be forwarded to the sponsors.
22
After all interested parties have had an opportunity to consider the foregoing, I will be pleased to discuss same with any of them at their convenience."
23
Looking to this language as well as to the closing sentence of the covering letter in which Shadle's president was told, "After you have had an opportunity to consider the foregoing, please call the undersigned at any time," we see that the documents, fairly interpreted, did not constitute a final demand upon Shadle for the performance of any action whatsoever. While Teachers' counsel informed Brown in the covering letter that he would "appreciate" Brown's "proceeding with the remedial action with respect to legal questions presented.", it is apparent to us, as it obviously was to the district judge, that further discussion of the objections raised and the problems, if any, which might be insoluble was intended and invited.
24
Appellants urge that Teachers, in issuing the memorandum, breached the contract by anticipatory repudiation and that for such reason, the deposit was unlawfully retained. The doctrine of breach of contract by anticipatory repudiation works harsh results, and for its application, there must be a "positive statement to the promisee or other person having a right under the contract, indicating that the promisor will not or cannot substantially perform his contractual duties; * * *." Restatement, Contracts § 318 (1932). See Trompeter v. United Ins. Co., 51 Wash.2d 133, 316 P.2d 455, 461 (1957); McFerran v. Heroux, 44 Wash.2d 631, 269 P.2d 815, 821 (1954); Casey v. Murphy, 143 Wash. 17, 253 P. 1078, 1079 (1927). As we have remarked, the memorandum and its covering letter presented no final demands to Shadle. They contain no "positive statement" that Teachers "will not or cannot substantially perform [its] contractual duties."
25
The memorandum's contents, as well as its import, its origin, and its primary destination, constitute no substantial evidence of the intent of Teachers' authoritative business executives to repudiate Teachers' commitment or to impose new, unreasonable, or impossible conditions for Shadle's performance. Having reached this conclusion from a careful examination of the documents themselves, it becomes unnecessary for us to discuss the testimony which was given orally. Most of it was excludable under the parol evidence rule. The terms of the written contract with its amendments are so clear as not to permit of attempted variance by oral testimony. See, e. g., St. Paul Fire & Marine Ins. Co. v. Balfour, 168 F. 212, 215 (9th Cir. 1909); Restatement, Contracts §§ 237, 238 (1932); 4 Williston, Contracts §§ 631-32 (3d ed. 1961). Suffice it to say that the weight of the evidence points to the conclusion that Shadle, in the face of its contract with Teachers, saw an opportunity, by arrangement with a new lender, to effectuate a saving of $500,000 in interest payments. With business prudence which is perhaps commendable, it availed itself of the opportunity. Teachers, anticipating the possibility of successful competition, was protected by the provision for forfeiture of the deposit. The evidence discloses no just basis for refusal to enforce the provision.
26
The District Court properly determined that the evidence was insufficient to justify a verdict in favor of Shadle's assignee, and the judgment is
27
Affirmed.
Notes:
1
The two dismissed grounds were as follows:
(1) That Teachers had represented that the cost of necessary appraisal work would be $1500, whereas the eventual cost of the appraisal was $3600.
(2) That it was represented that the mortgage lending specialist Jenson would be in exclusive control of the processing of the loan on behalf of Teachers, whereas in the course of the negotiations two other representatives of Teachers succeeded to Jenson's responsibility.
The district judge stated, as his reasons for the rejection of these particular claims of fraud, the following:
"I don't think there is any clear, cogent and convincing evidence that there was fraud as far as the appraisal fee of $1,500 was concerned."
"Nor do I feel that there was any fraud in connection with the representation by Mr. Jenson that he would process the loan, because it stands to reason that he is an employee subject to dismissal by his superiors for insubordination, failure to perform, or anything else, and he might even die. I don't think anybody can guarantee a situation like that, that he is going to be permanent."
We agree.
2
"6Parking. Under the terms of our commitment letter agreement, we have required that a paved parking area of 769,000 square feet at all times, in ratio of 3:1 with gross building area, be available within the mortgaged premises.
"In the most current plot plan attached to certain of the leases, the only reference to parking facilities is a car count of 1,970 cars. Unfortunately, it is not entirely clear whether this car count includes the Safeway property (not included in our mortgage) or is of the mortgaged premises alone.
"It should be noted that there is indicated within the Safeway property a car count of 181.
"Under the leases examined to date the largest parking area required is in the Penney lease wherein a car count of 1,700 cars, together with a ratio of 3.25:1 with floor area, is required. The next largest parking area is in the Pay Less Drug Stores lease and in the Newberry lease, both of which require a car count of 1,500 and a ratio of 3.25:1 with rentable space. The Edison Shoe and Bank leases require specifically 1,500 cars. All such leases, however, refer to an attached plot plan of both the mortgaged premises and the Safeway parcel.
"In our mortgage, therefore, we will be obliged to include the largest of the foregoing parking requirements as an event of default in accordance with our customary procedure for shopping centers. The requirement will be 1,970 cars and a ratio of not less than 3.25:1 with floor area. This ratio incidentally in each of the cited leases is to be prorated upon occupancy of such building areas and our mortgage ratio will coincide with this.
"In addition and in the event any subsequent lease shall contain requirement in excess of the foregoing, then such larger requirement shall prevail."
"7. Additional Parking: Under the terms of our commitment letter we have required a non-exclusive parking agreement over all portions of the Shadle Shopping Center as now or hereafter constituted, with a minimum ratio therein of not less than 3:1 (which ratio has been superseded by the lease ratio hereinbefore discussed). As you know, the mortgaged premises does not cover the entire Shadle Shopping Center. The portion of the center not covered by the mortgage is the building occupied by Safeway and certain parking area to the north and west of the Safeway building. This parcel is herein referred to as the Safeway property and is presently owned by Metropolitan Mortgage Company, although in some of the correspondence is referred to as The Metropolitan Insurance Company.
"Every lease in the center contains a reference to the Safeway property and includes this property in the various covenants affecting the `shopping center'.
"The reference to incorporation occurs in various forms. For example, in the form lease under Article I-A, it is provided that `a plan of the shopping center is hereto annexed as Exhibit A and is hereby made a part hereof'. This plot plan includes the Safeway premises. The lease further states that `a metes and bounds description of the lands comprising the shopping center, the (tenants) portion thereof, and the Safeway portion thereof as hereto annexed as Exhibit B, B-1 and B-2 respectively. Article I-B, Section 1 of the form lease further provides `In addition to the premises mentioned in Article I-A hereof, this lease includes the non-exclusive right to tenant * * * to use and enjoy throughout the term of this lease the "Common Areas" of the shopping center'. In addition, the J. J. Newberry lease includes substantially this same language, and more specifically the J. C. Penney Company lease requires that a parking agreement be executed with the owner of the Safeway property guaranteeing reciprocal parking rights over the life of the J. C. Penney lease.
"As mentioned previously, the Safeway parcel is owned by `Metropolitan Mortgage Company' and is only leased to the Safeway Stores Company. The only agreement I have seen, and apparently to which the Safeway Company will agree, is a draft of License Agreement, copy of which has been furnished to me. This Agreement is between Safeway Stores and Shadle, Inc. and provides merely for reciprocal ingress, egress and parking as between the two properties. It requires Shadle to remove the bumpers and obtain necessary permits. Each party agrees to indemnify the other for any personal injuries or property damage resulting from the Agreement and that neither will unduly hinder the other. The Agreement is to continue only so long as Safeway retains an interest as either owner or tenant in the Safeway property, and, upon the expiration thereof, the Agreement shall cease and Shadle shall restore the bumper curbs. In addition, the Agreement is not to be transferable or assignable by eitherparty [sic] without the consent of the other and is not to be considered as a deed or grant of easement or irrevocable.
"I have not been furnished with a copy of the Safeway Stores lease and have no idea as to the term thereof nor do I have any idea as to whether the entire `Safeway property', of which we have been speaking, is in fact demised under the Safeway lease. There is, therefore, the obvious deficiency in any agreement in which Safeway only is the other party inasmuch as there is no certainty that the term of the Safeway lease, even including renewals thereof (which they are not obliged to exercise), will be sufficient in relation to the terms and renewal options under the leases within the mortgaged premises.
"The most serious deficiency is also a breach of the J. C. Penney lease where it is specifically required that any such Parking Agreement shall be obtained from the owner of the Safeway parcel which, of course, is not true in the submitted draft.
"Please note that the rights under the License Agreement are not transferable or assignable by either of the signatories. The privileges thereunder now extend insofar as tenants, customers and invitees of the parties to this Agreement but would not extend to any subsequent owner of the mortgaged premises including Teachers in the event of foreclosure.
"There is now no limitation on the size of the buildings, parking areas, additional buildings, etc. insofar as the Safeway property is concerned. Consequently, there may be unlimited expansion of any of the buildings thereon, with the resulting adverse affect [sic] upon the required parking ratio and requirements under our leases, as well as from an aesthetic point of view. Unlimited building within the Safeway boundaries could completely obscure a portion of the balance of the center from the main street.
"I do not now know, but will confirm, that none of the utility lines connecting the mortgaged premises with the municipal or other public utility main lines run through the Safeway property. In any event, it should be noted that no such rights are granted under this agreement.
"Under the agreement, Safeway undertakes no obligation whatever to maintain light, remove snow, etc. for so much of the parking area located on its premises, nor does Safeway agree to contribute to the overall cost of maintaining the entire parking area, some portion of which would conceivably be utilized by its customers.
"In the event of condemnation or fire damage, there is no obligation on the part of the owner of the Safeway parcel to continue in occupancy.
"Although academic perhaps in view of the ownership and occupancy of the Safeway parcel, under the law of Washington a default in taxes and subsequent foreclosure would wipe out the pre-existing license agreement or, for that matter, any parking easement over the Safeway parcel. It then becomes absolutely important that some continuous check on the payment of taxes for the Safeway parcel be maintained with right and reasonable opportunity for easement-holders to cure any such default.
"One of the most serious consequences of the present arrangement is the fact that the Safeway premises could be used, assigned or sublet for a use in conflict with the existing exclusives in all other leases within the center inasmuch as all such exclusives refer to `the shopping center', of which Safeway is an integral part. In order to obtain compliance with all such exclusives, it becomes necessary to encumber the Safeway property with such a restriction or else amend all existing exclusives in the mortgaged premises to limit the effect of same to the mortgaged premises alone.
"The license agreement provides no remedies except the inherent right of damages for breach of covenant. There is, however, no provision for injunction or self-help.
"Although the parties under the license agreement would agree to indemnify each other, there is no express provision for liability insurance, although the same is required under the various leases.
"The foregoing criticisms of the license agreement, we believe, represent serious deficiencies, conflicts and defaults in relation to the leases within the mortgaged premises. It is pointed out that each of the problems represented in these criticisms are reasonably remedied under the provisions of our customary declaration, which would be recorded against the entire center, including the Safeway property. The declaration would be in the form of a two party agreement which we have executed in quite a few instances in the past and has been quite workable. To be of any value whatever, however, the agreement would need be with the owner of each parcel rather than with a tenant thereof.
"I will, in due course, communicate with the sponsors as well as the Safeway Company, with whom we enjoy a very fine relationship.
"The difficulty is that it is not too easy to point up to the Safeway Company any additional advantages which will accrue to them by such an agreement since they have fairly well protected themselves by way of restrictions in the deed of our property.
"The type of agreement and declaration we have in mind would be recorded against the entire center and would have to be a first charge thereon. Any existing mortgage on the Safeway property would have to be subordinated.
"The description of the mortgaged premises in our mortgage would include all of the property owned by Shadle Center, Inc. and as well the rights created under such agreement and declaration. The title policy furnished to us would insure the priority of our mortgage on the Shadle Center, Inc. property and as well the priority of the parking agreement and declaration on the Safeway property."
3
Even if it is assumed that Shadle's president, upon receipt of his copy of the memorandum, was reasonably justified in believing that it would be impossible to obtain a reciprocal parking agreement, it would seem reasonable that he should have explored the possibility or, at the very least, explained the basis of his belief to Teachers. The fact is that after Shadle made its agreement with the new long-term lender, a reciprocal parking arrangement involving the Safeway property was completed
The reference in the memorandum's paragraph 7 to "an aesthetic point of view" cannot, by any stretch of language, lead to the whole paragraph's interpretation as a "demand" by Teachers that Shadle, in the language of appellant's brief, "control the color and demeanor of the Safeway Store."
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DLD-332 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-1440
____________
RONALD A. DOVE,
Appellant
v.
YORK COUNTY, PENNSYLVANIA;
ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 3-12-cv-01517)
District Judge: Malachy E. Mannion
__________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 14, 2014
Before: SMITH, HARDIMAN and KRAUSE, Circuit Judges
(Filed: August 25, 2014)
____________
OPINION
____________
PER CURIAM
Appellant Ronald Dove appeals from a post-judgment order of the District Court
denying his request for copies pursuant to 28 U.S.C. § 2250. For the reasons that follow,
we will summarily affirm.
Dove was convicted in June, 2009 of driving under the influence and resisting
arrest, following a jury trial in the York County Court of Common Pleas. Dove was
sentenced to a term of imprisonment of 27 - 78 months. The Pennsylvania Superior
Court affirmed the criminal judgment and Dove’s state post-conviction petition was
denied.
On August 6, 2012, Dove filed a petition for writ of habeas corpus, 28 U.S.C. §
2254, in the United States District Court for the Middle District of Pennsylvania, raising
numerous grounds for relief. The District Court granted Dove’s motion to proceed in
forma pauperis, see Docket Entry No. 8, and the District Attorney of York County then
submitted a response, with numerous state court record exhibits. About two weeks later,
Dove filed a motion asking for a copy of the response and exhibits, claiming that he had
not received them, see Docket Entry No. 18. In response to that motion, a deputy
prosecutor from the District Attorney’s Office filed an item titled “Statement of Facts,”
see Docket Entry No. 19, in which she stated that she had in fact mailed a copy of the
response and exhibits to Dove on November 27, 2012. Moreover, after receiving Dove’s
motion for copies, she telephoned the prison where he was incarcerated, the State
Correctional Institution in Coal Township, to confirm that the mailings had reached him.
Prison officials confirmed that Dove had received the mailings that day. Accordingly,
the District Attorney argued that the request for copies should be denied as moot.
2
The District Court, in an order entered on November 15, 2013, denied Dove’s
habeas corpus petition and declined to issue a certificate of appealability.1 The District
Court did not rule on Dove’s motion for copies. Dove then filed a post-judgment motion
pursuant to 28 U.S.C. § 2250, claiming indigence and again seeking a copy of the District
Attorney’s response, and also a copy of the District Attorney’s “Statement of Facts.” In
an order entered on February 6, 2014, the District Court denied the motion on the ground
that the District Attorney had certified that Dove had been provided with a copy of the
response and exhibits. The District Court directed the Clerk to provide Dove with a copy
of the docket entries in his case, and invited him to ask the Clerk for an estimate of the
cost to copy the documents he wished to have reproduced.
Dove appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.2 Our Clerk
advised him that the appeal was subject to summary action under Third Cir. LAR 27.4
and I.O.P. 10.6. Dove filed a brief, which was received for our information. We have
considered it as his summary action response. In it, he asserts that he did not in fact
receive a copy of the District Attorney’s response and exhibits, and that his need for these
items should be self-evident.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Cir. LAR 27.4 and I.O.P. 10.6. Section 2250
of title 28 provides that “[i]f on any application for a writ of habeas corpus an order has
1
We denied Dove’s application for a certificate of appealability on May 7, 2014, see
C.A. No. 13-4578.
2
To the extent this appeal requires a certificate of appealability we decline to issue one.
3
been made permitting the petitioner to prosecute the application in forma pauperis, the
clerk of any court of the United States shall furnish to the petitioner without cost certified
copies of such documents or parts of the record on file in his office as may be required by
order of the judge before whom the application is pending.” 28 U.S.C. § 2250. The
District Attorney having certified that the requested items were mailed to Dove at his
place of incarceration, the District Court found that Dove had been provided with the
District Attorney’s response and exhibits, and, therefore, that he was not entitled to
anything further under section 2250. We review this factual determination for clear error,
see Ross v. Varano, 712 F.3d 784, 795 (3d Cir. 2013), and find none.
For the foregoing reasons, we will summarily affirm the District Court’s order
denying Dove’s motion for copies pursuant to 28 U.S.C. § 2250.
4
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510 U.S. 846
Veltmanv.United States.
No. 92-9023.
Supreme Court of United States.
October 4, 1993.
1
Appeal from the C. A. 9th Cir.
2
Certiorari denied. Reported below: 993 F. 2d 887.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EDNA M. BURTON,
Appellant,
v.
ESTATE OF CYNTHIA MAUREEN BURTON,
Appellee.
No. 4D19-3473
[July 2, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Sarah Willis, Judge; L.T. Case No.
502018CP005586XXXMB.
John P. Marinelli of Law Office of John P. Marinelli, LLC, West Palm
Beach, for appellant.
Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh
Vargas & Serafin, P.A., West Palm Beach, and David M. Garten of Law
Office of David M. Garten, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
WARNER, GROSS and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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985 P.2d 481 (1999)
Julio BRASSEA, Appellant,
v.
Ward E. PERSON, Appellee.
No. S-8371.
Supreme Court of Alaska.
August 13, 1999.
Matthew W. Claman, Anchorage, for Appellant.
Donald K. McLean, James W. Talbot, Bauer, Moynihan & Johnson, Seattle, for Appellee.
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and BRYNER, Justices.
OPINION
MATTHEWS, Chief Justice.
I. INTRODUCTION
Seaman Julio Brassea suffered an inguinal hernia while working as a fisherman on the F/V DAPHNE S. While performing surgery to repair this hernia, the doctor discovered a second, unrelated Richter's hernia and performed a second surgery to repair it. The owner of the DAPHNE S. paid maintenance and cure for the costs associated with the first hernia, but not the second, contending that Brassea was no longer "in the service of *482 the ship" when the second hernia was discovered. The superior court ruled that maintenance and cure was not owed Brassea because he was not "in service of the vessel" at the time the second hernia manifested itself and that there was no causal connection between Brassea's service to the vessel and his Richter's hernia.
Because Brassea was in the service of the vessel at the time his injury manifested itself, and because the issue of causation is irrelevant to maintenance and cure analysis, we reverse.
II. FACTS AND PROCEEDINGS
A. Facts
Julio Brassea was employed to work as a fisherman aboard the F/V DAPHNE S. by the vessel's owner, Ward Person. Brassea's term of employment was to be for the duration of the 1995 Kodiak salmon season, beginning in early June 1995. The vessel ceased fishing for the season on August 11, 1995. But on July 19, 1995, Brassea injured himself while lifting a twelve-gallon gas tank. On July 24 he reported the injury to Person, who encouraged him to seek medical treatment, and on July 25 he was diagnosed with a right inguinal hernia.[1] Person paid Brassea thirty days maintenance (at $25 per day for a total of $750) and hired a replacement.
Brassea underwent laparoscopic surgery for the inguinal hernia on July 27, 1995. During the surgery Dr. Foody, the treating physician, noticed that Brassea also had what appeared to be a previously undiagnosed Richter's hernia,[2] caused by surgery Brassea had undergone as an infant approximately fifty years earlier. Believing the Richter's hernia to be a potentially life-threatening condition, Dr. Foody determined it was medically necessary to repair it at that time. Dr. Foody's attempt to repair the Richter's hernia laparoscopically was unsuccessful, so he closed the laparoscopic incisions and performed a separate, external surgery.
Both surgeries were successful, and Brassea was discharged from the hospital on July 31, 1995. At the follow-up appointment on August 3, however, Brassea complained of pain from the incision made to repair the Richter's hernia, and he was readmitted with a diagnosis of a fistula[3] in the wound from the Richter's incision. He remained in the hospital until August 19, 1995, and was unable to return to work until September 22, 1995. If not for the Richter's hernia surgery and treatment for the related fistula, Brassea would have recovered completely by August 21, 1995.
Dr. Foody testified that he was unable to segregate the costs of the two hernia repair operations, but Person hired a registered nurse to separate the billing. She determined that $11,031.27 of the bill was attributable to the inguinal hernia (comprising a portion of the July 27-31 hospital stay). Person paid this amount. She attributed the remaining costs to the Richter's hernia ($34,056.18 in medical expenses), and Person contests his responsibility for this amount. As stated above, Person has paid Brassea $750 in maintenance for the thirty-day period from July 25 to August 23. He also paid Brassea his unearned wages in the amount of $601.81 through August 11, 1995the end of salmon fishing for the DAPHNE S. But Person did not pay maintenance for the period of August 24 through September 22, when Brassea returned to work.
B. Procedural History
Brassea sued Person in superior court, asserting claims for negligence under the Jones Act,[4] and for unseaworthiness, maintenance, cure and wages under general maritime *483 law. Both parties moved for summary judgment on the maintenance, cure and wages claim. The superior court granted Person's motion and denied Brassea's in a Memorandum Order dated July 29, 1997. The parties subsequently stipulated to dismissal of the remaining claims, and the court entered final judgment on October 6, 1997. Brassea appeals the grant of summary judgment in favor of Person.
III. STANDARD OF REVIEW
"State courts may apply their own standard of review to maritime cases under the `saving to suitors' clause [of 46 U.S.C. § 1333]."[5] We review de novo appeals from grants of summary judgment involving questions of law.[6] We will adopt the "rule of law that is most persuasive in light of precedent, reason, and policy."[7]
IV. DISCUSSION
A. The Right of Maintenance and Cure
"`Maintenance' is the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of the ship. `Cure' is the right to necessary medical services. Both extend to the point of `maximum recovery'."[8]
The right to maintenance and cure arises from the contractual nature of the employer-employee relationship, and is in some respects more comprehensive than the right to worker's compensation.[9] Both are liability-without-fault systems, but maintenance and cure contains no causation element and is not the seaman's only remedy.[10]
The origin of the seaman's right to maintenance and cure in the United States rests on two policy grounds. First is the general social interest in protecting sailors. The second policy ground is national: the security of the United States and its economic well-being depend on an able marine fleet. "[Maintenance and cure] encourages seamen to engage in perilous voyages with more promptitude, and at lower wages. It diminishes the temptation to plunder upon the approach of sickness; and urges the seamen to encounter hazards in the ship's service, from which they might otherwise be disposed to withdraw."[11]
The importance of these dual policy objectives has led courts to construe the right to maintenance and cure broadly. In Farrell v. United States,[12] the Supreme Court noted:
It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations. The seaman could forfeit the right only by conduct, whose wrongful quality even simple men of the calling would recognizeinsubordination, disobedience to orders, and gross misconduct. On the other hand, the Master knew he must maintain and care for even the erring and careless seaman, much as a parent would a child. For any purpose to introduce a graduation of rights and duties based on some relative proximity of the activity at time of injury to the "employment" or the "service of the ship" would alter the basis and be out of harmony with the spirit and function of the doctrine and would open the door to the litigiousness which has made the landman's remedy so often a promise to the ear to be *484 broken to the hope.[[13]]
1. Causation is irrelevant in maintenance and cure analysis.
The superior court addressed the issue of causation in its Memorandum Order, reasoning that "[i]n the case of a pre-existing condition, a ship's master is liable only for aggravation of the condition, not for the condition itself." The two cases the superior court cited for this proposition[14] are inapposite, however, as they concern claims brought for negligence under the Jones Act (where causation is an element), not claims for maintenance and cure. In fact, the question of maintenance and cure was explicitly avoided in both cases; in one it was expressly reserved for a separate judgment,[15] and in the other the parties had settled the issue during the trial.[16]
As suggested by the language of Farrell, supra, requiring a showing of causation for maintenance and cure claims misapplies the law. "The duty to provide maintenance and cure is without regard to fault, and negligence and causation are not relevant."[17] "The seaman may recover for any injury or illness suffered without his misconduct during the employment period. The injury or illness need not result from or be in any way causally related to his shipboard duties."[18]
This rule can be traced to Calmar Steamship Corp. v. Taylor.[19] There, during an examination for a stubbed toe a seaman was discovered to be suffering from Buerger's disease.[20] The Court held the seaman entitled to maintenance and cure, even though the disease was unrelated to his foot injury.[21]Calmar therefore establishes that maintenance and cure extends to all injuries and illnesses which are "aggravated or manifested" during the seaman's term "in service of the ship."
2. Elements of a maintenance and cure claim
Although the seaman has the burden of proof in a case for maintenance and cure, the burden itself is light. The claimant must show only four elements: (1) his engagement as a seaman; (2) that his illness or injury was aggravated or manifested itself while in the ship's service; (3) the wages to which he is entitled at the end of the voyage; and (4) the expenditures or liability he incurred for medicines, lodging, etc.[22]
In this case, the only contested element is (2)whether Brassea's Richter's hernia "manifested itself" while he was "in the service of the ship."
B. At the Time He Underwent Surgery for His Inguinal Hernia, Brassea Was "In the Service of the Ship" for Purposes of Maintenance and Cure.
Brassea contends that he was in the service of the ship at least until August 11, 1995 (when the DAPHNE S. stopped fishing for salmon), and arguably until September 22, 1995 (when Brassea reached maximum cure). Person responds that Brassea's service to the ship ended when his inguinal hernia rendered him unable to return to work aboard the DAPHNE S. Although Person paid maintenance and cure after that point, he claims Brassea was no longer in the service of the ship.
In Farrell, the Supreme Court defined "in the service of the ship" as the state of being "generally answerable to [the] call to *485 duty rather than actually in performance of routine tasks or specific orders."[23] A seaman on vacation, for example, is not "answerable to the call of duty," and therefore is not "in the service of the ship."[24]
Person argues that Brassea was not "answerable to the call of duty" at the time he underwent surgery to repair the inguinal hernia because he could not be called upon to return to the ship. He contends that Brassea's shipboard injury had rendered him unfit for work, and no possibility existed that he would be summoned for duty.
Brassea argues for a liberal interpretation of the "in the service of the ship" standard. This argument conforms to the expansive interpretation encouraged by the Supreme Court in Aguilar v. Standard Oil Co.[25] In that case, the Court extended "service" to include injuries sustained while on shore leave. The Court reasoned that the policy considerations supporting the broad obligation of maintenance and cure required an equally broad definition of "service."[26]
The assumption is hardly sound that the normal uses and purposes of shore leave are "exclusively personal" and have no relation to the vessel's business .... [S]hore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion.
. . . [I]t is the ship's business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. Accordingly it is but reasonable that the business extend the same protections against injury from them as it gives for other risks of the employment.[[27]]
The facts of Brassea's case are even more persuasive. Brassea was not engaged in an "exclusively personal" activity when he underwent surgery for the inguinal hernia. His injury, and subsequent surgery, were incidents of his position as a seaman and closely related to the business of the ship. The second hernia was discovered and thus manifested itself during his treatment for the inguinal hernia at a time when, except for the treatment, he would have been working aboard the DAPHNE S. We conclude, therefore, that the discovery and treatment of the second hernia occurred while Brassea was in the service of the ship.
V. CONCLUSION
In light of the tradition of liberally interpreting a shipowner's liability for maintenance and cure, a liability that is "among `the most pervasive' of all and . . . not to be defeated by restrictive distinctions nor `narrowly confined,'"[28] we REVERSE the superior court's judgment and hold that Brassea was in the service of the ship when his Richter's hernia was manifested, and that he is therefore entitled to maintenance and cure. We REMAND for further proceedings consistent with this opinion.
CARPENETI, Justice, not participating.
NOTES
[1] An inguinal hernia occurs when, during physical exertion, a section of intestine is forced through the small sac in the muscle wall of the abdomen left by the descent of the testicle early in development.
[2] A Richter's hernia consists of an obstruction of the small intestine, caused by the intestine becoming embedded in, or scarred to, the abdominal wall.
[3] A fistula is "an abnormal passage leading from an abscess or hollow organ to the body surface or from one hollow organ to another and permitting passage of fluids or secretions." Webster's New Collegiate Dictionary 467 (9th ed.1989).
[4] 46 U.S.C. § 688 (1994).
[5] Brown v. State, 816 P.2d 1368, 1371 n. 2 (Alaska 1991).
[6] See id.
[7] Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
[8] 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, 348 (2d ed.1994) (citations omitted).
[9] Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, 281-82 (2d ed.1975).
[10] See id.
[11] Id.; see also Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 87 L.Ed. 1107 (1943) (noting that maintenance and cure is designed to achieve "the combined object of encouraging marine commerce and assuring the well-being of seamen").
[12] Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949).
[13] Id. at 516, 69 S.Ct. 707.
[14] Milos v. Sea-Land Serv., Inc., 478 F.Supp. 1019, 1023 (S.D.N.Y.1979); Scarberry v. Ohio River Co., 217 F.Supp. 189, 193 (S.D.W.Va. 1963).
[15] Milos, 478 F.Supp. at 1029.
[16] Scarberry, 217 F.Supp. at 189, 193.
[17] Schoenbaum, supra note 8, at 349 (footnote omitted).
[18] Gilmore & Black, supra note 9, at 287-88.
[19] 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993 (1938).
[20] Id. at 526, 58 S.Ct. 651.
[21] Id. at 529, 58 S.Ct. 651.
[22] See Weason v. Harville, 706 P.2d 306, 309 (Alaska 1985) (quoting 2 M. Norris, The Law of Seamen § 558 (3d ed.1970)).
[23] Farrell, 336 U.S. at 516, 69 S.Ct. 707.
[24] See Shaw v. Ohio River Co., 526 F.2d 193, 194, 198-99 (3d Cir.1975).
[25] 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).
[26] Id. at 733, 63 S.Ct. 930.
[27] Id. at 733-34, 63 S.Ct. 930.
[28] Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (quoting Aguilar, 318 U.S. at 735, 63 S.Ct. 930).
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81 F.Supp. 211 (1948)
BRAINARD
v.
ATCHISON, T. & S. F. RY. CO.
No. 46 C 2040.
United States District Court N. D. Illinois, E. D.
December 6, 1948.
Frank E. McAllister, of Chicago, Ill., for plaintiff.
Thomas J. Barnett, Floyd J. Stuppi and Philip E. von Ammon, all of Chicago, Ill., for defendant.
CAMPBELL, District Judge.
Plaintiff brought this action in December, 1946, under the Federal Employers Liability Act, 45 U.S.C.A. § 51 et seq., seeking recovery for damages for injuries received in Newton, Kansas. On October, 29, 1948, after issue had been joined and the case was awaiting trial, defendant moved to transfer the cause to the District Court of Kansas under 28 U.S.C.A. § 1404(a).
This type of motion is directed to the discretionary powers of the Court and, under normal circumstances, this Court would promptly transfer the cause upon timely motion by a defendant, where retention of it would work an injustice to the defendant. However, the case at bar has been on the trial call of the Court for a considerable length of time, and it is contemplated that it will go to trial in approximately one week. In fairness to the parties and in the interests of the orderly administration of justice, a determination of the matter should not now be further delayed.
The motion of the defendant to transfer the cause is, therefore, denied.
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209 F.Supp. 143 (1962)
Calvin Woodrow BARFIELD, Petitioner,
v.
Dr. R. O. SETTLE, Warden, Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
Civ. No. 13935-4.
United States District Court W. D. Missouri, W. D.
August 30, 1962.
Calvin Woodrow Barfield, petitioner, pro se.
F. Russell Millin, U. S. Atty., by William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for respondent.
BECKER, District Judge.
Calvin Woodrow Barfield, petitioner, has filed a petition for writ of habeas corpus wherein he alleges that he is being illegally held as a prisoner at the Medical Center for Federal Prisoners at Springfield, Missouri. An order to show cause was issued. A response and traverse have been filed.
The facts, as shown by the pleadings, are that on December 1, 1961, in the District of Kansas, petitioner was arrested and charged with violation of Title 18 U.S.C.A. § 2315. On or about December 12, 1961, petitioner was committed to the United States Medical Center, Springfield, Missouri, for mental observation and evaluation, pursuant to Title 18 U.S.C.A. § 4244. On March 14, 1962, the Honorable Arthur J. Stanley, Jr., United States District Judge for the District of Kansas, committed the petitioner to the custody of the United States Attorney General "under the provisions of 18 U.S.C.A. [§§] 4244 and 4246," finding that petitioner was then so mentally incompetent that he could not stand trial on the charges pending against him, that if released he would probably endanger the safety of officers, property or other interests of the United States, and that no suitable arrangements had *144 been made for the custody and care of the defendant by any agency of the state of his residence.
Petitioner alleges that he has been diagnosed as having a schizophrenic reaction, paranoid type; that he has had this condition continuously since at least 1956; and that this condition is a progressive, permanent, incurable type of mental illness.
Petitioner claims that, since his condition is permanent, he is and has been illegally detained, that his continued detention at the Medical Center violates his constitutional right to a fair and speedy trial and is, therefore, illegal, and that he has a right to be transferred to an institution in South Carolina, his alleged residence.
Assuming, for the purposes of this ruling that petitioner's averments of fact are true, petitioner nevertheless fails to allege facts that would authorize the issuance of a writ of habeas corpus by this Court at this time. Title 18 U.S.C.A. § 4246 states:
"And if the court after hearing * * * shall determine that the conditions specified in the following section 4247 exist, the commitment shall be governed by section 4248 as herein provided."
The conditions specified in section 4247 are:
"* * * that if released he will probably endanger the safety of the officers, the property, or other interests of the United States, and that suitable arrangements for the custody and care of the prisoner are not otherwise available * * *."
In light of the aforementioned findings by the United States District Court for the District of Kansas, and the language of sections 4246 and 4247, supra, it is clear that petitioner's commitment is governed by section 4248. That section clearly states that a person committed pursuant to section 4247 shall be confined:
"* * * until the sanity * * * of the person shall be restored or until the mental condition of the person is so improved that if he be released he will not endanger the safety of the officers, the property, or other interests of the United States, or until suitable arrangements have been made for the custody and care of the prisoner by the State of his residence, whichever event shall first occur."
Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412, held that the enactment of the statutes here involved was plainly within the power of Congress under the Necessary and Proper Clause of the Constitution, Article 1, Section 8, and that evidence that the accused suffered from a "more than temporary" mental disability did not defeat the federal power to make the initial commitment. In Royal v. United States (C.A.10) 274 F.2d 846, factually quite similar to the present case, the legality of the detention under sections 4244-4248 of an accused who was presumably permanently insane, was dangerous if released, and appeared to have no chance of recovery, was sustained.
Petitioner claims that, by operation of the statutes under which he has been committed, he has been denied the right to a speedy trial under the guaranty of the Sixth Amendment and that therefore the charge against him should be dismissed. Under the circumstances of the case as they exist at the present time there is no merit in this claim. Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412; Howard v. United States (C.A.5) 261 F.2d 729; United States v. Miller (D.Vt.) 131 F.Supp. 88, l. c. 93-94, limited to the situation where the accused was temporarily insane in order to distinguish it from cases such as Dixon v. Steele (W.D. Mo.) 104 F.Supp. 904. In light of Greenwood, supra, effectively overruling Dixon et al., the rationale should equally apply to the "permanently" insane. See also Germany v. Hudspeth (C.A.10) 209 F.2d 15, l. c. 19.
In view of the time factor, and other circumstances of this case, this *145 Court has no practical power to grant other relief. The release of the petitioner could not be ordered since he has been lawfully committed to the Springfield Medical Center by the United States District Court for the District of Kansas, and no neglect or disregard of petitioner's rights appears. Neither dismissal of the indictment nor trial of the case could be ordered since the power and jurisdiction to make such orders is possessed exclusively by the trial court in ordinary circumstances such as this. All this Court could do would be to consider whether petitioner could make a submissible case of mental competency to stand trial, and, if so, order petitioner sent to Kansas for a hearing before the committing court on his ability to stand trial. Wieter v. Settle (W.D.Mo.) 193 F.Supp. 318, l. c. 322; Pavlick v. Settle (W.D.Mo.) 203 F.Supp. 42. If neglect or disregard of the petitioner's rights later appears, the legality of his detention may be tested by habeas corpus at that time.
The committing court has the duty to inquire from time to time into the mental status of a person committed by it. Johnson v. Settle (W.D.Mo.) 184 F.Supp. 103, l. c. 106. Therefore, this Court should refrain from exercising its jurisdiction until the petitioner has shown that he has made application to the committing court for consideration of his present mental status, and that that court has unjustly refused such a consideration or that he is unable to obtain justice in the committing court for some other reason.
This case falls within the rule of Seelig v. United States (C.A.8) Misc. No. 127, June 1, 1962 (unreported):
"* * * [T]he length of time that petitioner has been held is not yet such as to give rise on its face to any apparent neglect or disregard of petitioner's rights. This is not to say that circumstances may not at some time become such as prima facie to entitle petitioner to a hearing in habeas corpus. As the situation presently stands, however, without some request having been made to the * * * [committing court] * * * for a current consideration of petitioner's condition and a refusal by the Court to engage in such consideration as may be legally appropriate in relation to the circumstances, there is not sufficient basis for petitioner to seek a writ of habeas corpus from the District Court for the Western District of Missouri."
Petitioner's averments that he mailed a letter to the committing court regarding his situation on June 7, 1962, and that such letter has gone unanswered is not sufficient to satisfy the prerequisite set out above.
Therefore it is
ORDERED that the petition for writ of habeas corpus be, and it is hereby, denied without prejudice.
ORDERED that petitioner's motion for appointment of counsel be, and it is hereby, overruled.
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203 F.2d 764
BROWN & BIGELOWv.EUGENE DIETZGEN CO.
Patent Appeal No. 5960.
United States Court of Customs and Patent Appeals.
April 15, 1953.
Almon S. Nelson, Washington, D. C., for appellant.
Spencer, Johnston, Cook & Root, Junius F. Cook, Jr. and Lloyd C. Root, Chicago, Ill., for appellee.
Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, WORLEY and COLE, Judges.
GARRETT, Chief Judge.
1
This is an appeal from the decision of the Assistant Commissioner, 92 U.S.P.Q. 228, acting for the Commissioner, reversing the decision of an Examiner of Trade-Mark Interferences in a trade-mark opposition proceeding.
2
The application of appellee is for the registration on the principal register established by the Trade-Mark Act of July 5, 1946, 15 U.S.C.A. § 1051 et seq. (hereinafter referred to as the Lanham Act) of "Redirule" as a trade-mark for slide rules. The application, serial No. 531,452, was filed in the Patent Office August 15, 1947. First use of the word as a trade-mark was alleged to have been "on or about July 29, 1944." There is, therefore, no claim by appellee that section 2(f) of the Lanham Act is applicable here.
3
Appellant's notice of opposition was filed October 3, 1949. Therein, appellant pleaded ownership of several registered marks for different products having "Redi" as a prefix. Five of such registrations bear filing dates subsequent to the filing date of the application of appellee, and in no one of the five is there an allegation of use on the product named therein earlier than July 29, 1944, the date alleged by appellee of first use of its notation. In each of the five, the statement is made that appellant owned the two earlier registrations pleaded, but that does not render the five pertinent as a basis of opposition.
4
The first of the two registrations of appellant, which antedate the application of and date of first use by appellee, was that of "Redipoint," Registration No. 144,356. It was registered July 5, 1921 under the Act of February 20, 1905, as a trade-mark for "magazine-pencils," upon an application, serial No. 116,831, filed March 24, 1919, in which first use was alleged "on or about November 1, 1917." It was renewed to appellant, which is a corporation of Minnesota, July 5, 1941, and was republished by it under the Lanham Act February 24, 1948.
5
The second early registration of appellant was that of "Redilite," Registration No. 266,667. It was registered January 28, 1930, under the February 20, 1905 Act, as a trade-mark for "Pyrophoric Cigar Lighters" upon an application, serial No. 283,713, filed May 9, 1929, use being alleged "since April 1, 1929." It was republished under the Lanham Act February 24, 1948, and renewed January 28, 1950.
6
From the foregoing statement of facts it is apparent that at an early date appellant selected as trade-marks for certain articles of merchandise words having a misspelled, or phonetically spelled, prefix meaning "ready," which must have been intended to be descriptive of the articles whose character was indicated by the suffix. Thus, "Redipoint" applied to pencils obviously means pencils having a point ready for use, and "Redilite" ("lite" being a phonetic spelling, or a misspelling, of "light") which, when applied to a pyrophoric cigar lighter, means a device ready for use in spontaneously igniting a cigar.
7
The validity of appellant's registrations is not in question here, but we do not think they are entitled to establish a monopoly upon the use of "Redi" as a prefix and thereby prevent others from using it in a trade-mark otherwise registrable upon goods differing in character from the goods of appellant and, certainly, we are unable to discern any similarity in appearance or use between pencil points and cigar lighters on the one hand and slide rules on the other. The fact that slide rules may be used as guides in drawing lines with pencils is not, in our opinion, an association which creates a resemblance such as the Lanham Act contemplates, nor does the fact that the goods of the respective parties may be sold in the same stores have any particular relevance upon the question of resemblance.
8
"Redi" is not a coined term having an arbitrary meaning peculiar to appellant's products.
9
The phraseology of the Lanham Act here pertinent reads:
10
"No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it —
11
* * * * * *
12
"(d) Consists of or comprises a mark which so resembles a mark registered in the Patent Office * * *, as to be likely, when applied to the goods of the applicant, to cause confusion or mistake or to deceive purchasers. * * *."
13
The "confusion" or "mistake" or "deception" so referred to, of course, has reference to origin.
14
In our opinion, "Redirule" does not so resemble either "Redipoint" or "Redilite" as to cause confusion, or mistake, or to deceive purchasers who possess ordinary intelligence, with respect to origin, when applied to the applicant's (appellee here) slide rules.
15
The decision of the Assistant Commissioner is affirmed.
16
Affirmed.
17
O'CONNELL, J., dissents.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1321
CHARLES A. ALLEN,
Plaintiff - Appellant,
versus
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-
01-430-S)
Submitted: May 17, 2001 Decided: May 23, 2001
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles A. Allen, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles A. Allen appeals the district court’s order dismissing
his civil action because the complaint failed to comply with Fed.
R. Civ. P. 8(e)(1)’s requirement that it be “simple, concise, and
direct.” We have reviewed the record and the district court’s
opinion and find no reversible error. Accordingly, we affirm on
the reasoning of the district court. See Allen v. Secretary, Dep’t
of Health & Human Servs., No. CA-01-430-S (D. Md. filed Feb. 23,
2001; entered Feb. 26, 2001). However, we modify the dismissal to
be without prejudice to Allen’s right to file a complaint in com-
pliance with Rule 8. 28 U.S.C. § 2106 (1994). We dispense with
oral argument because the facts and legal contentions are adequate-
ly presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
2
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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
DAVID NOWAKOWSKI, : No. 216 WAL 2017
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Commonwealth Court
v. :
:
:
UNEMPLOYMENT COMPENSATION :
BOARD OF REVIEW, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 1st day of November, 2017, the Petition for Allowance of Appeal
is DENIED.
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207 S.W.3d 162 (2006)
Sylvanus Brian McBRYDE, Respondent,
v.
RITENOUR SCHOOL DISTRICT, Appellant.
No. ED 86592.
Missouri Court of Appeals, Eastern District, Division Four.
October 3, 2006.
Application for Transfer Denied December 19, 2006.
*164 Thomas A. Mickes, Natalie A. Hoernschemeyer, Chesterfield, MO, for appellant.
D. Eric Sowers, Ferne P. Wolf, St. Louis, MO, Jefferson City, MO, for respondent.
Penney R. Rector, Jefferson City, for amicus curiae.
NANNETTE A. BAKER, Presiding Judge.
Introduction
Ritenour School District ("Ritenour") appeals from the judgment of the trial court in favor of Sylvanus Brian McBryde ("McBryde"). Ritenour claims four points on appeal. First, it claims the trial court erred in denying its Motions for Directed Verdict and Judgment Notwithstanding the Verdict because McBryde failed to make a submissible case of race discrimination under the Missouri Human Rights Act ("MHRA"). Second, Ritenour claims the trial court erred in submitting McBryde's offered verdict director to the jury and in not submitting its verdict director because McBryde's was a "not-in-MAI" *165 instruction and it did not follow the substantive law of discrimination under the MHRA. Third, Ritenour claims the trial court erred in refusing its offered Jury Instruction C because to deny the "Business Judgment Instruction" is reversible error since a business has a right to make a business decision absent unlawful discrimination. Fourth, Ritenour claims the trial court erred in refusing its tendered Jury Instruction D since failure to offer the "same decision" instruction is reversible error because the instruction followed substantive law. We find no error and affirm.[1]
Factual Background and Proceedings Below
The evidence viewed in a light most favorable to the verdict is as follows:
McBryde worked for the Special School District and was assigned to Ritenour High School as a teacher's assistant. He was also employed by Ritenour High School as an assistant basketball coach at the high school for three seasons between 2000 and 2003. Before he was hired, McBryde was interviewed by the head basketball coach, Jason Graves ("Graves"). Graves told McBryde, who is African-American, that he needed a black assistant coach who could relate to the black players on his team.
A memorandum of understanding served as the contract for coaching during the season. A coach could not be paid until he received his signed contract and returned a signed copy. McBryde earned between $2,964.00 and $3,241.00 per season. The school's basketball season began on October 15 each year and ended at the end of February.
McBryde received his contract for the 2000-2001 season on January 3, 2001. It was authorized by the Ritenour Board of Education and it was signed by the Superintendent of Schools on December 19, 2000. His 2002-2003 contract was authorized by the Ritenour Board of Education and it was signed by the Superintendent of Schools on January 19, 2003. During the three years he coached at Ritenour High School, McBryde was never given a signed contract before the season began. McBryde's 2001-2002 contract was not in evidence.
On the other hand, during the same time period, a white assistant basketball coach, Garth Scott ("Scott") always received his contract before the basketball season began. Scott's 2002-2003 school year coaching contract was authorized by the Ritenour Board of Education and signed by the Superintendent of Schools on June 27, 2002. Scott's 2000-2001 contract was authorized by the Ritenour Board of Education and signed by the Superintendent on July 28, 2000.
As assistant varsity coach, McBryde's duties included running drills, discussing the philosophy of the game and teaching the fundamentals of basketball. McBryde was also the head coach for the junior varsity basketball team where he coached and substituted players at the games.
In the beginning of the 2001-2002 school year, the principal, Bill Korte ("Korte") told Graves that he had concerns about McBryde as a role model for student athletes. Korte stated that he did not like the negative ways McBryde "carried himself around the school."
Korte requested that McBryde be given a written job description detailing his *166 duties, expectations and demeanor while coaching basketball, however, he did not request one for the white assistant coaches.
On December 12, 2001, Scott had a loud argument with McBryde. The argument concerned an encounter that occurred the previous day between McBryde and Scott's wife, another Ritenour teacher. Scott threatened McBryde if he ever invaded Scott's wife's personal space again. Graves was present and witnessed the argument. Kerry Reid, the athletic director, and Korte reprimanded Scott for his conduct towards McBryde.
In the fall of 2002, Scott was hired by Ritenour as a full-time teacher at Ritenour High School, in addition to his job as assistant basketball coach for the 2002-2003 season. By contrast, McBryde was employed by the Special School District and was assigned to Ritenour as a teaching assistant. Ritenour High School only employed him during the basketball season.
On May 15, 2003, the high school held an open gym night. Students as well as adults played basketball. Scott was supposed to supervise the open gym that night. When Graves told Scott that McBryde would be attending and playing at the open gym, Scott told McBryde he had decided to stay home and cut his grass instead. Because of Scott's decision, McBryde was the only school official present at the open gym. Since basketball season was over, the Special School District actually employed McBryde. He was not a Ritenour High School employee. There was an altercation that night during the open gym between an unidentified adult and a student, Ronald Cornell ("Cornell"). Cornell was injured in the incident.
McBryde attempted to break up the confrontation and keep the violence from escalating. By the time McBryde cleared the gym, Cornell had left with his friends. McBryde knew Cornell only by the initials "OC" so he was unable to track the student to his home. That night, he called Ingrid Clark Jackson ("Clark Jackson"), an assistant principal at Ritenour, and told her what had happened. Clark Jackson told McBryde to make a written report of the incident and meet with her the next day.
At the request of Korte, Clark Jackson interviewed students and prepared a written report regarding the open gym incident. She sent a copy of her incident report to Korte and to Assistant Superintendent David Hoefakker ("Hoefakker"). After reviewing the report, Hoefakker wrote a letter to the Special School District requesting that McBryde be excluded from the school district based solely on the incident at the May 15, 2003 open gym night. Further, in his letter, Hoefakker referenced a six-pointed star tattoo that McBryde had, and inferred that the tattoo was a symbol of gang affiliation.[2] Near the end of the letter, Hoefakker admitted that his mention of the possible gang affiliation "include[d] a certain amount of conjecture." He listed several reasons why he was asking the Special School District to exclude McBryde from "our District." These included McBryde's failure to call the police after the incident; his violation of the rule that only students may participate in open gym; his violation of the rule that an open gym supervisor may not play; his failure to seek medical attention for Cornell; his delay in notifying Ritenour authorities of the incident; and his invitation *167 to the adults who were involved in the incident. According to Hoefakker, he conferred with Korte and Clark Jackson, as well as legal counsel, before he wrote the letter to the Special School District.
Graves admitted that before the May 15, 2003 incident there were no Ritenour written rules concerning open gym, but that the coaches were told to follow the Missouri State High School Activities Association ("MSHSAA") rules. He also admitted that there was no rule that open gym was only for Ritenour students; that he had allowed non-Ritenour students as well as adults to play at an open gym when he was in charge; and that the only copy of the MSHSAA rules was kept in the athletic director's office, inaccessible to the coaches.
On May 20, 2003, Graves sent a memo to Korte regarding open gym. In that memo, he stated that he "spoke with [McBryde] on Friday, May 2 about not having people play in open gym from outside of school." In the memo, Graves also stated that he specifically told McBryde on May 15, 2003, before the open gym night, that if individuals were not Ritenour students, they could not play in open gym.
On May 27, 2003, Korte sent McBryde a memo regarding his Ritenour High School duties and responsibilities. Korte stated that the district was carefully reviewing the incident that occurred on May 15 "related to adherence of standard operating procedures of Ritenour High School."
Later that day, McBryde was suspended from his Special School District duties with pay and escorted out of the high school building by the area coordinator. McBryde was later notified that his coaching contract would not be renewed. According to Korte, Hoefakker made the decision not to renew McBryde's contract for the 2003-2004 season and Korte did not play any role in that decision.
Before McBryde's suspension, other basketball coaches had been disciplined through verbal reprimands. No one had been suspended. In December, 2001, David Fuchs ("Fuchs"), was verbally reprimanded when he failed to adequately supervise an open gym night in which one student broke another student's jaw during an altercation. Scott received a verbal reprimand after receiving so many technical fouls while coaching games during the 2001-2002 basketball season that he was unable to finish coaching the season. Nothing concerning this reprimand was placed in Scott's personnel file. Scott also received a verbal reprimand after threatening McBryde, an action that Graves witnessed.
McBryde filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and with the Missouri Commission on Human Rights ("MCHR"). Both agencies issued Right to Sue letters to McBryde. The MCHR letter indicated that McBryde had ninety days to file a civil action. On February 13, 2004, McBryde filed a petition charging Ritenour with race discrimination under the MHRA.
The case was tried by a jury from April 4, 2005 through April 7, 2005. During the trial, Ritenour moved for a Directed Verdict at the close of McBryde's evidence and again at the close of all the evidence. The trial court denied both motions. The jury returned a verdict for McBryde and awarded him $3,241.00 against Ritenour. On April 7, 2005, the trial court entered judgment for McBryde in the amount of $3,241.00. On May 2, 2005, the trial court issued an amended judgment awarding McBryde $3,241.00 in actual damages. On his additional claims for attorneys' fees and costs and equitable relief, the trial court awarded McBryde $69,000.00 in attorneys' *168 fees, $4774.86 in costs and ordered the expungement of his personnel records at Ritenour.
Discussion
The MHRA, Section 213.010[3] et seq., protects important societal interests in prohibiting discrimination in employment, public accommodation, and other interests on the basis of sex, race, color, religion, national origin, ancestry, age as it relates to employment, disability, or familial status as it relates to housing. State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 565 (Mo. banc 2006). The Act provides for broad enforcement authority in the Missouri Human Rights Commission and for administrative remedies. Id. In addition, to further this societal interest in eliminating discrimination, the Act allows a claimant to seek damages for actual and punitive damages, court costs, and reasonable attorney fees. Id. at 565-566. The Act, in allowing a claim for damages, shows legislative intent to include private claims for relief by aggrieved employees and others, to further the enforcement of the statute. Id.
The MHRA and Title VII[4] are coextensive, but not identical, acts. Hammond v. Municipal Correction Institute, 117 S.W.3d 130, 136 (Mo.App. W.D.2003). (emphasis added). These statutes create different causes of action. Id. Missouri Courts have adopted federal Title VII case law when interpreting analogous discrimination statutes in the Missouri Human Rights Act. Id. at 137. However, the MHRA is not merely a reiteration of Title VII. Id. The Act is in some ways broader than Title VII, and in other ways is more restrictive. Id. If the wording in the MHRA is clear and unambiguous, then federal case law which is contrary to the plain meaning of the MHRA is not binding. Id.
Jury Instructions
Ritenour asserts three claims of error regarding the trial court's refusal to submit its tendered instructions to the jury. In reviewing an instruction, this Court views the evidence and the inferences in the light most favorable to the instruction, and disregards contrary evidence. Missouri Dep't of Transp. ex rel. P.R. Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 31 (Mo.App. E.D.2002). We will reverse on instructional error only where the instruction misled, misdirected, or confused the jury, and the instruction resulted in prejudicial error. Id.
I. Verdict Director
In its second point relied on, Ritenour claims that the trial court erred in submitting McBryde's offered verdict director to the jury and in not submitting its verdict director. Ritenour contends that McBryde's offered verdict director did not follow the substantive law of discrimination based on race under the MHRA.
Rule 70.02[5] governs instructions to juries. Criswell v. Short, 70 S.W.3d 592, 594 (Mo.App. S.D.2002). To require the giving of a non-MAI instruction, a party must prove that the MAI instructions submitted to the jury misstate the law. City of Kansas City v. Habelitz, 857 S.W.2d 299, 303 (Mo.App. W.D.1993). *169 When there is no applicable MAI instruction, a non-MAI instruction may be given if it conforms to the requirements of Rule 70.02 in that it is simple, brief, impartial and free from argument. Id.
McBryde tendered an instruction based on Missouri Approved Instruction ("MAI") 31.24,[6] Verdict DirectingEmployment DiscriminationMissouri Human Rights Act:
Your verdict must be for plaintiff Sylvanus McBryde if you believe:
First, defendant Ritenour School District refused to offer a coaching contract to plaintiff Sylvanus McBryde, and
Second, that plaintiff Sylvanus McBryde's race was a contributing factor in such refusal to offer him a coaching contract, and
Third, as a direct result of such conduct, plaintiff Sylvanus McBryde sustained damage. (emphasis added).
Ritenour tendered Instruction B, which reads, in its entirety, as follows:[7]
Your verdict must be for plaintiff and against defendant Ritenour on plaintiff's race discrimination claim if all of the following elements have been proved by the greater weight of the evidence:
First, defendant failed to extend a new coaching contract for the 2003-2004 school year to plaintiff; and
Second, plaintiff's race was a motivating factor in defendant's decision.
If either of the above elements has not been proved by the greater weight of the evidence, your verdict must be for defendant and you need not proceed further considering this claim. (emphasis added).
Ritenour further argues that MAI 31.24 misstates the substantive law of discrimination under the MHRA by allowing the jury to give a verdict for McBryde if it finds that race is a contributing factor rather than a motivating factor. Ritenour would have us believe that "motivating factor" is a higher threshold for a plaintiff to meet than "contributing factor." In fact, in its brief, Ritenour uses the term "motivating factor" interchangeably with "determining factor" and "substantial factor." But nowhere in Title VII, the Eighth Circuit's model jury instructions or the MHRA is the standard for discrimination set forth as a "substantial" or "determining" factor. Indeed the Eighth Circuit's Model Instruction 5.01 states that "[t]he *170 Committee believes that the phrase `motivating factor' should be defined." In fact "motivating" is defined as playing a part or playing a role in the decision and continues to instruct the jury that the plaintiff's race need not have been the only reason for the decision.[8] (emphasis added).
The plain meaning of words supply their statutory definition unless the legislature provides a definition. Delta Air Lines, Inc. v. Dir. of Revenue, State of Missouri, 908 S.W.2d 353, 356 (Mo. banc 1995). The plain meaning is found in the dictionary. Id. See also State v. Daniel, 103 S.W.3d 822, 826 (Mo.App. W.D.2003). Since the term "contributing" factor is not defined in the MAI, we look to the dictionary for its plain meaning. Webster's Third New International Dictionary defines "contributing" as "that contributes a share in anything or has a part in producing the effect."[9] Given the similarity between the definitions for "motivating" and "contributing", we are not persuaded by Ritenour's attempts to convince us that motivating factor is a higher threshold than contributing factor.
Discrimination is defined in section 213.010 as "any unfair treatment based on race, color, religion, national origin, ancestry, sex, age as it relates to employment . . ." (emphasis added). Therefore, in enacting the MHRA, the legislature sought to prohibit any consideration of race or other improper characteristic no matter how slight in employment decisions. The plain meaning of the MHRA imposes liability on an employer when an improper consideration is a contributing factor, regardless if other factors also exist. The plain language of the statute does not require a plaintiff to prove that discrimination was a substantial or determining factor; a plaintiff need only demonstrate that discrimination was a contributing factor in the employment decision.
Therefore, we cannot say that the verdict director misstated the substantive law under the MHRA. Accordingly, the trial court did not err in submitting MAI 31.24, the verdict directing instruction to the jury. Point denied
A. Jury Instruction C
In Ritenour's third point relied on, it claims that the trial court erred in refusing its offered Jury Instruction C, a business judgment instruction. Ritenour contends that denying this instruction to the jury when it is offered by a defendant in an employment discrimination case is reversible error because the school district has a right to make a business decision absent unlawful discrimination.
Ritenour's proposed Jury Instruction C reads "[y]ou may not return a verdict for plaintiff just because you might disagree with defendant Ritenour's action or believe it to be harsh or unreasonable." The tendered instruction references the "Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit (2001 Edition) 5.58 (modified)".[10]
*171 Ritenour argues that we should follow the Eighth Circuit, which holds that in employment discrimination cases, a business judgment instruction is crucial to a fair presentation of the case, and the district court must offer it whenever it is proffered by the defendant. Langlie v. Onan Corp., 192 F.3d 1137, 1141 (8th Cir. 1999).
There is no case law in Missouri concerning the business judgment instruction and its use in MHRA cases for discrimination based on race. Although we may look to the Eighth Circuit for guidance, we are not bound to follow its case law. See e.g. Trimble v. State of Missouri, 693 S.W.2d 267, 276 (Mo.App. W.D.1985); Dillman v. Missouri Highway and Transp. Comm'n, 973 S.W.2d 510, 513 (Mo.App. E.D.1998). Moreover, in employment discrimination cases, the controlling law in the Eighth Circuit is Title VII. In Missouri, these cases fall under the MHRA. If the Missouri Supreme Court had wished to adopt the language of the Eighth Circuit's model jury instruction regarding the business judgment instruction, it could have done so when it drafted and subsequently adopted MAI jury instructions specifically addressing the MHRA.[11]
Furthermore, the Eighth Circuit is the only circuit that has held that failure to give the business judgment instruction in either a Title VII or a state human rights act claim is reversible error. See, e.g., Julian v. City of Houston, Texas, 314 F.3d 721, 727 (5th Cir.2002); Trident Inv. Mgmt., Inc. v. Amoco Oil Co. 194 F.3d 772, 780 (7th Cir.1999); and Kelley v. Airborne Freight Corp., 140 F.3d 335, 350-351 (1st Cir.1998). Since this case was tried under the MHRA rather than Title VII, it was not error for the trial court to refuse the business judgment instruction. This point is denied.
B. Jury Instruction D
In its fourth point relied on, Ritenour alleges that the trial court erred in refusing its tendered Jury Instruction D, a "same decision instruction." Ritenour contends that even if it did consider illegitimate factors in not renewing McBryde's contract, it would have made the same decision regardless. Specifically, Ritenour claims that the trial court's failure to offer the instruction to the jury when tendered by a defendant in an employment discrimination case is reversible error and Ritenour was prejudiced by such failure. It further argues that the instruction followed substantive law and there was evidence offered to support that defense.
Ritenour's proposed Jury Instruction D reads:
[i]f you find in favor of plaintiff under Instruction______, then you must answer the following question in the verdict form: Has it been proved by the greater weight of the evidence that defendant would not have extended a new coaching contract for the 2003-2004 school year to plaintiff regardless of his race?
The tendered instruction references the Eighth Circuit Model Jury Instruction 5.01A.[12]
Ritenour relies on Swyers v. Thermal Science, Inc. for the proposition that "Missouri recognizes a same decision defense in employment discrimination claims." 887 S.W.2d 655, 656-657 (Mo.App. E.D.1994). However, Swyers can be distinguished *172 from the case before us. In Swyers, the plaintiff appealed from a grant of summary judgment in favor of the defendant in her sex discrimination suit under the MHRA. Id. at 656. The defendant relied on the "after acquired evidence" defense, stating that even if it did discriminate against the plaintiff based on her sex, it would have refused to hire her anyway because she falsified information on her applications.[13]Id. The defendant showed that it did check on past work history for each employee and that it would refuse to hire any employee who falsified an application. Id. at 657. Therefore, since the defendant had shown consistent behavior under its hiring policy, the court held that summary judgment was appropriate. Id.
In the case at bar, Hoefakker, by his own admission, made the decision not to renew McBryde's contract based solely on the incidents of the May 15, 2003 open gym night. Ritenour could not demonstrate a consistent pattern of behavior with regard to its treatment of McBryde and its treatment of the other coaches when there were problems with the coaches' judgment or behavior. Additionally, Swyers was decided prior to State ex rel. Diehl v. O'Malley,[14] so it does not address the issue of the giving of a jury instruction on the "same decision" defense.
Additionally, Ritenour's proposed jury instruction is an Eighth Circuit instruction pertaining to Title VII, not an MAI instruction pertaining to the MHRA. Ritenour has failed to demonstrate any provision of the MHRA that allows for the same decision defense as a bar to recovery against discriminatory behavior by the employer.
Notwithstanding, Ritenour fails to establish that it would have not renewed McBryde's contract solely based on the open gym incident. There is ample evidence that Ritenour disciplined McBryde more severely than it disciplined the white coaches. This underscores that McBryde was treated differently from the other coaches. Again, Missouri courts are not bound to use an Eighth Circuit Title VII Jury Instruction, thus we cannot find that the trial court's failure to offer Ritenour's Jury Instruction D is reversible error. Point denied.
Directed Verdict and JNOV
In its first point on appeal, Ritenour claims the trial court erred in denying its Motions for Directed Verdict and Judgment Notwithstanding the Verdict because *173 McBryde failed to make a submissible case of race discrimination under the MHRA. Specifically, Ritenour alleges that McBryde failed to prove a prima facie case of discrimination since he did not meet its legitimate expectations. Ritenour argues that for McBryde to make a submissible case of discrimination, "he needed to prove every element of his claim of race discrimination under the [MHRA]." It further maintains that the MHRA's analysis for race discrimination "parallels federal anti-discrimination statutes." Ritenour also contends that Hoefakker did not know that McBryde was African-American at the time he made the decision not to renew McBryde's contract and therefore his decision could not have been motivated by race or discriminatory. Additionally, since Ritenour hired an African-American male to fill McBryde's position the following year, it argues that the non-renewal of McBryde's contract could not be discriminatory.
In reviewing a denial of a motion for judgment notwithstanding the verdict, review is essentially the same as for review of a denial of a motion for directed verdictwe review the record to determine whether the plaintiff made a submissible case. Daniels v. Board of Curators of Lincoln Univ., 51 S.W.3d 1, 5 (Mo.App. W.D.2001). In determining whether the evidence was sufficient to support the jury's verdict, we view the evidence in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences which conflict with that verdict. Id. If the record contains probative facts to support the conclusion reached by the jury, we will affirm. Id. If a party makes a case under any theory submitted to the jury, the motion for directed verdict and motion for judgment notwithstanding the verdict are properly denied. Id.
MHRA Section 213.055 reads, in pertinent part:
1. It shall be an unlawful employment practice:
(1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual:
(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, national origin, sex, ancestry, age or disability;
In the case at bar, the jury believed that Ritenour discriminated against McBryde during his employment as an assistant basketball coach that eventually led to the non-renewal of his contract. He established that he did not receive his coaching contract until mid-season, while Scott always received his contract before the season began. McBryde also established that white coaches were disciplined with verbal reprimands while he received an immediate suspension.
There were also discrepancies in the evidence before the jury. Specifically, Graves testified that there were no rules for open gym before May 15, 2003, and that outsiders were allowed to participate, but his memo to Korte stated that the coaches were given verbal rules regarding no outsider participation in the open gym. The memo also stated that Graves had told McBryde on two different occasions, May 2, 2003, and May 15, 2003 before the open gym night, that anyone who was not a Ritenour student could not play in an open gym. On the other hand, Graves testified that he had allowed non-Ritenour students to participate in open gym during the *174 school year. Korte testified that he "played no role" in Hoefakker's decision not to renew McBryde's contract. However, Hoefakker testified that he conferred with Korte and Clark Jackson while he was preparing the letter to the Special School District asking for McBryde's removal. The evidence of disparate treatment as well as the inconsistencies in the evidence could certainly lead a reasonable jury to believe that McBryde made a submissible case of discrimination against Ritenour. Therefore, the trial court correctly denied Ritenour's motion for a directed verdict. Point denied.
Accordingly, we affirm the judgment of the trial court.
ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J., concur.
NOTES
[1] This court has reviewed the Motion taken with the case. Respondent's Renewed Motion to Request Attorneys' Fees is denied.
[2] McBryde testified that he got his six-pointed star tattoo when he played professional basketball in Israel. The six-pointed star, also known as a "Star of David" appears on the Israeli flag. Also, in Clark Jackson's report, only one student mentioned that he believed that the adult involved in the incident also had a six-pointed star tattoo.
[3] All statutory references are to RSMo.2004, unless otherwise indicated.
[4] Title VII of the Civil Rights Act of 1964, as amended in 1991, was enacted to prohibit discrimination by employers on the basis of race, color, religion, sex or national origin. 42 USC 2000-e.
[5] All rule references are to Mo. Rules Civ. P. 2004, unless otherwise indicated.
[6] MAI 31.24 was approved March 7, 2005 and became effective July 1, 2005. The trial took place in April 2005. Prior to that, there was no MAI instruction for the claim of discrimination based on race under the MHRA. MAI 31.24 reads, in its entirety:
Your verdict must be for plaintiff if you believe:
First, defendant (here insert the alleged discriminatory act, such as "failed to hire", "discharged" or other act within the scope of Section 213.055, RSMo) plaintiff, and
Second, (here insert one or more of the protected classifications supported by the evidence such as race, color, religion, national origin, sex, ancestry, age, or disability) was a contributing factor in such (here, repeat alleged discriminatory act, such as "failure to hire", "discharge", etc.), and
Third, as a direct result of such conduct, plaintiff sustained damage.
*[unless you believe plaintiff is not entitled to recover by reason of Instruction Number (here insert number of affirmative defense instruction)].
(emphasis added). The Order accompanying MAI 31.24 reads, in pertinent part: "2. The Instructions, Notes on Use and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after July 1, 2005, and may be used prior thereto; any such use shall not be presumed to be error." (emphasis added).
[7] This instruction is based on the Eighth Circuit Model Instruction 5.01.
[8] Eighth Circuit Model Instruction 5.96.
[9] WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 476 (PHILIP BABCOCK GOVE, ED.1976).
[10] The meaning of this reference is unclear. The 2005 Eighth Circuit Manual of Model Civil Jury Instructions contains a nearly identical instruction 5.94 titled "Business JudgmentTitle VII Cases." We found case references prior to 2001 citing the business judgment instruction of the 8th Circuit also as 5.94. The manual contains no 5.58 instruction. For the sake of analyzing this point on appeal, we assume that Ritenour is actually referencing Eighth Circuit Instruction 5.94 and not 5.58.
[11] See MAI 31.24 and 31.25.
[12] The Eighth Circuit Manual of Model Civil Jury Instructions instruction 5.01A is titled "Title VII`same decision'" and is nearly identical in form to Ritenour's submitted instruction.
[13] Plaintiff had applied to work for defendant on three separate occasions. Id. In each application there were discrepancies from her actual work history as well as between the applications. Id. She argued that the defendant would not have discovered her falsified application if it had hired her rather than discriminating against her. Id.
[14] 95 S.W.3d 82 (Mo. banc 2003). In Diehl, the Missouri Supreme Court held that a discrimination claim for damages only filed under the MHRA is entitled to a trial before a jury under the Missouri Constitution. Id. at 84. The court reasoned that "the present casean action for damages for discrimination based upon age, sex and retaliation for filing a discrimination complaintis analogous to those kinds of actions triable by juries at the time of the Constitution of 1820." Id. at 87. Further, the court held that the plaintiff's claims in a discrimination claim under the MHRA "are conceptually indistinguishable from other statutory actions for damages that traditionally have carried the right to a jury trial." Id. at 88. Likening the discrimination claim for damages to a wrongful death claim or a claim for retaliation, neither of which existed at the time of the Missouri Constitution of 1820, the court held that the civil action for damages for a personal wrong was the kind of case that was triable by juries since the inception of the state's constitution. Id. at 88, 92.
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TENA MARIE HARNISH, DOCKET NUMBER
Appellant, CH-0752-14-0303-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 14, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tena Marie Harnish, Indianapolis, Indiana, pro se.
Nathan R. Mellman, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as withdrawn. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown, 5 C.F.R. § 1201.114(e), (g), and the appellant’s request to reopen
her appeal is DENIED, 5 C.F.R. § 1201.118.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 The appellant appealed the agency’s decision to remove her. Initial Appeal
File (IAF), Tab 1. However, after the approval of her disability retirement
application, she requested to withdraw her appeal. Hearing Compact Disc. The
administrative judge therefore dismissed the appeal as withdrawn on December 9,
2014. IAF, Tab 34, Initial Decision (ID).
¶3 The appellant filed an untimely petition for review on March 27, 2015, in
which she asserts that she was: (1) confused when she withdrew her appeal;
(2) not provided with information concerning the withdrawal; and (3) not made
whole by the agency. Petition for Review (PFR) File, Tab 1 at 3-4. She also
states that she has been ill due to her disabilities. Id. at 3. The Clerk of the
Board issued an acknowledgment letter informing the appellant that her petition
was untimely filed and affording her the opportunity to file a motion to ask the
Board to accept the filing as timely and/or waive the time limit for good cause.
PFR File, Tab 2. The appellant did not respond. The agency has responded in
opposition to the appellant’s petition. 2 PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board treats a request to reopen an initial decision (which became final
when neither party petitioned for review) as an untimely filed petition for review.
2
In addition to this removal appeal, the appellant also filed an indefinite suspension
appeal. Harnish v. U.S. Postal Service, MSPB Docket No. CH-0752-14-0304-I-1.
Although the appeals were never joined, the administrative judge dismissed both
appeals as withdrawn on the same day. ID; Harnish v. U.S. Postal Service, MSPB
Docket No. CH-0752-14-0304-I-1, Initial Decision (Dec. 9, 2014). The appellant filed
the present petition for review only in connection with the removal appeal. As a result,
the Clerk of the Board issued an order seeking to clarify whether the appellant also
intended to challenge the dismissal of her indefinite suspension appeal. PFR File,
Tab 4. The order further stated that if the appellant did not respond, the Board would
assume that she intended to contest only the initial decision in the removal appeal. Id.
Accordingly, because the appellant did not respond, we consider her petition for review
only as to MSPB Docket No. CH-0752-14-0303-I-1.
3
Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009).
Therefore, we initially will consider the appellant’s submission as an untimely
filed petition for review.
¶5 The Board’s regulations require that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision or, if a party
shows that she received the initial decision more than 5 days after it was issued,
within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e)(1).
The record shows that the appellant registered as an e-filer with the Board’s
electronic filing system (e-appeal). IAF, Tab 1. Registration as an e-filer
constitutes consent to accept electronic service of documents issued by the
Board. 5 C.F.R. § 1201.14(e). The Board’s regulations further provide that
Board documents served on registered e-filers are deemed received on the date of
the electronic submission. 5 C.F.R. § 1201.14(m)(2).
¶6 The record reflects that the initial decision in this matter was transmitted
via e-appeal on December 9, 2014. IAF, Tab 34. Because the appellant was a
registered e-filer, she is deemed to have received the initial decision on that date.
See 5 C.F.R. § 1201.14(e)(1), (m)(2). Thus, the deadline for filing a petition for
review of the initial decision was 35 days after its issuance, i.e., January 13,
2015. See 5 C.F.R. § 1201.113; see also ID at 2. The appellant did not file her
petition for review until March 27, 2015. PFR File, Tab 1. Her petition therefore
was untimely filed by 73 days.
¶7 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for an
untimely filing, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Gaetos v. Department of
Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). To determine if an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her showing of due diligence, whether she is
4
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune, which similarly shows a causal
relationship to her inability to timely file her petition. Id.
¶8 We find that the appellant failed to show good cause for a waiver of the
filing deadline because she did not respond to the Clerk of the Board’s order
concerning whether there was good cause for her filing delay. See id., ¶ 6.
Additionally, although the appellant states that she is disabled, she did not
explain how her disabilities affected her ability to timely file her petition or
request an extension of time. See Barlow v. Department of the Navy, 99 M.S.P.R.
569, ¶ 7 (2005) (finding that the appellant failed to establish that the untimely
filing of her petition was the result of illness where she had not submitted any
medical evidence to demonstrate that she was hospitalized, under medical
treatment, or otherwise suffering from an illness between the dates of issuance of
the initial decision and for timely filing her petition). Therefore, we find that the
petition for review is untimely filed without good cause shown for the delay. See
Duncan v. U.S. Postal Service, 96 M.S.P.R. 448, ¶ 7 (2004) (finding that the
appellant did not show good cause for the delay in filing his petition for review
where, notwithstanding his pro se status, the delay was significant, he did not
respond to the Clerk of the Board’s timeliness notice, and he did not make any
statement explaining the delay).
¶9 To the extent that the petition is construed as a request to reopen the appeal
pursuant to 5 C.F.R. § 1201.118, we deny this request. See Lincoln v. U.S. Postal
Service, 113 M.S.P.R. 486, ¶ 9 (2010). Ordinarily, an appellant’s withdrawal of
an appeal is an act of finality and, in the absence of unusual circumstances such
as misinformation or new and material evidence, the Board will not reinstate an
appeal once it has been withdrawn merely because the appellant wishes to
proceed before the Board or to cure an untimely petition for review. Potter v.
5
Department of Veterans Affairs, 116 M.S.P.R. 256, ¶ 7 (2011). The appellant
states that she was confused at the time of her withdrawal, that she was not
provided information concerning the withdrawal, and that she is disabled. PFR
File, Tab 1 at 3-4. However, she has presented no argument or evidence of
unusual circumstances concerning the withdrawal of her appeal. We therefore
decline to exercise our discretion to reopen the appeal. See
Lincoln, 113 M.S.P.R. 486, ¶ 9.
¶10 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s withdrawal of her removal appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
6
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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United States Court of Appeals
For the First Circuit
Nos. 15-1419
15-1577
TRAFON GROUP, INC.,
Plaintiff, Appellant,
v.
BUTTERBALL, LLC,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jorge I. Peirats, with whom Jason R. Aguiló-Suro and
Pietrantoni Méndez & Álvarez LLC, were on brief, for appellant.
Luis A. Oliver, with whom Salvador Antonetti-Zequeira and
Fiddler González & Rodríguez, P.S.C., were on brief, for appellee.
May 2, 2016
TORRUELLA, Circuit Judge. Filing suit in the United
States District Court for the District of Puerto Rico, Plaintiff-
Appellant Trafon Group, Inc. ("Trafon") alleges that Defendant-
Appellee Butterball, LLC ("Butterball") breached an exclusive
distribution agreement in violation of Puerto Rico's Law 75 of
June 24, 1964, P.R. Laws Ann. tit. 10, § 278 et seq. ("Law 75").
Trafon sought a preliminary injunction, asking that the district
court enjoin Butterball from further impairing Trafon's exclusive
distribution rights. The district court denied the motion on the
basis that Trafon's claim was barred under Law 75's three-year
statute of limitations and subsequently dismissed the case under
Federal Rule of Civil Procedure 56(f). Trafon now appeals the
denial of the preliminary injunction and the judgment against it.
I.
A Puerto Rico-based wholesale food distributor, Trafon
alleges that, in June 2009, it acquired certain assets from Packers
Provisions Company of Puerto Rico, including an exclusive
distribution agreement with Butterball for whole bird and turkey
part products in Puerto Rico.1 Soon after the deal was executed,
Trafon learned that Butterball was selling its products to a
1 Neither the original Asset Purchase Agreement nor the attached
documents reference an exclusive distribution agreement between
Butterball and Packers Provisions Company.
-2-
Florida wholesaler that was distributing those products to a
retailer in Puerto Rico. On October 14, 2009, Trafon's counsel
wrote to Butterball expressing concerns that Butterball was
violating the exclusive distribution agreement. On October 26,
2009, Butterball's counsel sent a letter (the "2009 letter")
denying Trafon's allegation:
[T]he allegation of a Law 75 violation rests on the
incorrect premise that your clients acquired
exclusive rights to distribute Butterball products
in Puerto Rico. For many years, Butterball (and its
predecessors) have offered Butterball branded
products for sale and distribution within Puerto
Rico without entering into a written agreement or
appointing an exclusive distributor. . . . [W]e
have not located any documents corroborating your
clients' conclusory allegation that Butterball or
any predecessors (i.e., the principals) granted any
exclusive distribution rights in Puerto Rico
limiting the principals' right to sell directly or
appoint competing distributors. If your clients
have any evidence to the contrary on this issue, we
would appreciate it if you would produce the same to
us immediately. . . . Butterball has an interest to
negotiate in good faith the terms of a formal written
non-exclusive agreement with your clients for the
sale and distribution of its products in Puerto
Rico. During this time, Butterball is agreeable to
continue to do business with your clients on the same
non-exclusive terms and on a purchase order basis as
has existed over the past few months.
The record does not reveal whether Trafon or its counsel responded
to the 2009 letter. Trafon and Butterball continued to do business
together, and each invoice that Trafon received from Butterball
contained the following notice:
-3-
As confirmed by way of letter dated October 26, 2009,
any and all purchase orders for Butterball branded
products fulfilled by Butterball LLC are done so on
a non-exclusive basis. Nothing contained in this
invoice, nor any act or omission to act by Butterball
LLC, is intended to grant you with any exclusive
distribution rights in Puerto Rico or elsewhere.
Trafon alleges that, notwithstanding the 2009 letter and
subsequent invoices, Butterball treated Trafon as an exclusive
distributor. On various occasions where Butterball made direct
sales to Puerto Rico supermarkets in contravention of Trafon's
alleged exclusive rights, Butterball paid Trafon commissions. For
example, in 2010, Trafon consented to direct sales that Butterball
made to the supermarket chain Selectos and received a commission
of two cents per pound on the sale. 2 Similarly, on multiple
instances Trafon suspected Butterball was working directly with
supermarkets in Puerto Rico or negotiating with different Puerto
Rico-based distributors. Rather than deny that Trafon was their
exclusive distributor, Butterball responded to Trafon's queries by
promising to investigate the situations. For example, after
Trafon saw that the retailer Pueblo was selling Butterball
products, it informed Butterball that Trafon had not sold to Pueblo
and asserted that this sale was "another violation on Butterball's
2 Butterball contests this account and attests that it
consistently sold its products directly to supermarkets and mass
retailers in Puerto Rico without paying Trafon.
-4-
end." Butterball replied that it would "investigat[e] where this
fresh turkey sale came from and report back to you."
This relationship lasted until Trafon learned that
Butterball made direct sales to various retailers in Puerto Rico
without Trafon's knowledge in 2012. Around this time, Butterball
also refused to pay commissions that it allegedly promised Trafon
for direct sales to Costco in 2011 and 2012. Trafon informed
Butterball that these actions violated the exclusive distribution
agreement. In April 2013, Butterball responded to these
allegations with a flat denial that Trafon and Butterball had ever
entered into an exclusivity agreement:
You are, of course, aware that Butterball has never
recognized Trafon as an exclusive distributor of
Butterball products. . . . [A]s things currently
stand, Butterball intends to sell to other customers
in Puerto Rico on a non-exclusive basis, and Trafon
is welcome to purchase products from Butterball on
the same basis if it chooses to do so.
Spurred by Butterball's proclamation that it intended to
work with other distributors in Puerto Rico, Trafon brought this
action in the District of Puerto Rico in September 2013 and moved
for a preliminary injunction enjoining Butterball from violating
the alleged exclusive distribution agreement. Following a
hearing, a magistrate judge issued a Report and Recommendation
("R&R") recommending that the motion for a preliminary injunction
be denied. The magistrate judge determined that Law 75's three-
-5-
year limitations period started when Trafon received the 2009
letter, and, as a result, Trafon's claims were time-barred. The
magistrate judge also found that, even assuming Trafon's claims
were timely, Trafon had failed to show that it had ever entered
into an exclusive contract with Butterball. Adopting the R&R's
conclusion that Trafon's claims were time-barred, the district
court denied the request for a preliminary injunction. It
declined to reach the question of whether the parties had an
exclusive distribution relationship.
The district court also entered an order for Trafon to
show cause as to why the case should not be dismissed under Federal
Rule of Civil Procedure 56(f) (a court may consider summary
judgment sua sponte "[a]fter giving notice and a reasonable time
to respond"). In response, Trafon sought reconsideration of the
order denying the preliminary injunction. The district court
denied the motion and entered judgment for Butterball. Trafon now
appeals the denial of the preliminary injunction and subsequent
dismissal of its case.
II.
A.
The district court's grant or denial of a preliminary
injunction is reviewed for an abuse of discretion, with conclusions
of law reviewed de novo and findings of fact for clear error.
-6-
Bl(a)ck Tea Soc'y v. City of Bos., 378 F.3d 8, 11 (1st Cir. 2004).
The parties do not contest the basic facts, and neither party
disputes that the determination of whether Trafon's claim is time-
barred is subject to de novo review. See Montalvo v. González-
Amparo, 587 F.3d 43, 46 (1st Cir. 2009); Skwira v. United States,
344 F.3d 64, 72 (1st Cir. 2003).
B.
Law 75 provides that, in a dealer's contract, 3 "no
principal or grantor may directly or indirectly perform any act
detrimental to the established relationship or refuse to renew
said contract on its normal expiration, except for just cause."
P.R. Laws Ann. tit. 10, § 278a; see also Irvine v. Murad Skin
Research Labs., Inc., 194 F.3d 313, 317 (1st Cir. 1999) ("Law 75
limited the principal's ability to end the relationship
unilaterally except for 'just cause' . . . . " (quoting P.R. Laws
Ann. tit. 10, § 278a)). In this way, Law 75 serves "to avoid the
3 Under Law 75, a "dealer's contract" is defined as a
[r]elationship established between a dealer and a
principal or grantor whereby and irrespectively of
the manner in which the parties may call,
characterize or execute such relationship, the
former actually and effectively takes charge of the
distribution of a merchandise, or of the rendering
of a service, by concession or franchise, on the
market of Puerto Rico.
P.R. Laws Ann. tit. 10, § 278(b).
-7-
inequity of arbitrary termination of distribution agreements once
the designated dealer ha[s] successfully developed a local market
for the principal's products and/or services." Irvine, 194 F.3d
at 317; see also R.W. Int'l Corp. v. Welch Food, Inc., 13 F.3d
478, 482 (1st Cir. 1994).
Law 75 contains a three-year statute of limitations,
providing that "[e]very action . . . shall prescribe in three
years reckoning from the date of the definite termination of the
dealer's contract, or of the performing of the detrimental acts,
as the case may be." P.R. Laws Ann. tit. 10, § 278d. The
magistrate judge found, and the district court agreed, that
Butterball's 2009 letter notifying Trafon that they did not have
an exclusive relationship constituted a "detrimental act" under
Law 75 and, therefore, that the statute of limitations had expired
long before Trafon brought suit in 2013.
The parties contest whether the 2009 letter is a
detrimental act under Basic Controlex Corp., Inc. v. Klockner
Moeller Corp., 202 F.3d 450 (1st Cir. 2000), which also involves
the alleged breach of an exclusive distribution agreement. There,
"KMC [the principal] informed Basic Controlex [the distributor]
that it intended to sell its products through other distributors
in Puerto Rico, 'effective immediately.'" Id. at 452. Although
the parties disputed whether KMC acted on these plans, this court
-8-
determined that Basic Controlex's Law 75 action, brought over three
years after it received this notice from KMC, was time-barred
because "Basic Controlex had notice of its claim as soon as KMC
announced its plan to use other distributors in 1993. That
announcement constituted the 'performing of a detrimental act'
under Act 75, sufficient to trigger the statute." Id. at 453
(internal formatting omitted).
Similarly, the 2009 letter put Trafon on notice that
Butterball did not view their relationship as exclusive. Trafon
argues that the 2009 letter was insufficient to start Law 75's
statute of limitations as it did not mention an "affirmative act."
According to Trafon, KMC's letter in Basic Controlex announced
concrete plans to begin working with other distributors, whereas
the 2009 letter was simply a statement of legal position. Trafon's
argument, however, overlooks a significant component of Basic
Controlex: there, the First Circuit found summary judgment
appropriate on statute of limitations grounds although the parties
disputed whether KMC had followed through on its plans. Id. at
452. In other words, KMC's letter constituted a detrimental act
regardless of whether KMC actually contracted with other
distributors: what mattered was that KMC had announced its intent
to do so. Likewise, the 2009 letter announced Butterball's intent
not to treat Trafon as its exclusive distributor. Once Trafon
-9-
received the letter, it was on notice that Butterball could begin
working with other distributors at any point in contravention of
the alleged agreement. See id. at 453 ("On May 3, 1993, KMC
expressly informed Basic Controlex of its intent to use other
distributors in alleged violation of the parties' agreement.").
As in Basic Controlex, Butterball's subsequent actions have no
bearing on whether the 2009 letter was a detrimental act under the
statute.
Trafon argues that this interpretation of Law 75 will
benefit principals at the expense of distributors. As Trafon sees
it, principals could announce to distributors that they do not
intend to honor rights conferred by Law 75 and wait three years to
act on those intentions, thereby forcing distributors to bring
lawsuits without having suffered injury. In this way,
distributors would be forced to bring costly lawsuits with no
prospect of damages or else risk forfeiting their rights under Law
75. To be sure, "evidence of the damages sustained is an essential
requirement" for an award under Law 75. Marina Indus., Inc. v.
Brown Boveri Corp., 114 D.P.R. 64, 90 (1983) (official
translation); see also Sun Blinds, Inc. v. S.A. Recasens, 111 F.
App'x 617, 619 (1st Cir. 2004) ("If a plaintiff proves termination
or impairment of the business relationship by the defendant, Law
75 provides a formula for indemnification but only 'to the extent
-10-
of the damages caused.'" (quoting P.R. Laws Ann. tit. 10, § 278b)).
Nevertheless, lawsuits are costly for plaintiffs and defendants
alike, and we are not convinced that today's result will lead to
companies merrily announcing their intent to breach contracts and
thus inviting litigation under Law 75.
More importantly, the 2009 letter was a response to
Trafon's accusations that Butterball had worked with another
distributor, Quirch Foods. Had Trafon brought a timely suit under
Law 75, it could have identified damages stemming from that
transaction and sought provisional injunctive relief under Law 75,
just as it did here. See P.R. Laws Ann. tit. 10, § 278b-1.4 By
their very nature, limitations periods punish plaintiffs who sit
on their rights once they have the requisite knowledge to assert
a claim: Trafon could not simply wait to file until Butterball
committed a more costly breach. Cf. Jardín de las Catalinas Ltd.
P'ship v. Joyner, 766 F.3d 127, 134 (1st Cir. 2014) ("Once a
plaintiff has knowledge of the facts needed to bring a claim, it
cannot wait idly for process to be afforded or for the defendant
to change its mind.").
4 While the record does not indicate how this issue was resolved
after Trafon received the 2009 letter, during oral argument Trafon
indicated that it did not bring suit at the time because Butterball
denied having made these sales. Nevertheless, this denial did not
prevent Trafon from filing a breach of contract claim based on its
allegations.
-11-
Trafon contends that, even if the 2009 letter
constituted a detrimental act under Law 75, Butterball's statute
of limitations defense should be barred on equitable estoppel
grounds. In the alternative, Trafon argues that a de facto
exclusive relationship developed following its receipt of the 2009
letter. Butterball contends that these issues are waived as they
were not raised before the magistrate. Although Trafon asserts
that these issues were addressed in its objection to the R&R, "an
unsuccessful party is not entitled as of right to de novo review
by the judge of an argument never seasonably raised before the
magistrate." Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); accord Fireman's
Ins. Co. of Newark, N.J. v. Todesca Equip. Co., Inc., 310 F.3d 32,
38 (1st Cir. 2002).5
5 In any case, Trafon would be unlikely to succeed on the merits
of these claims. It is undisputed that Butterball regularly
submitted invoices to Trafon indicating that their relationship
was not exclusive. Given these repeated and explicit assertions
to the contrary, Butterball is unlikely to "have intentionally
induced the plaintiff to rely upon representations that" their
relationship was exclusive, Matosantos Commercial Corp. v. SCA
Tissue N. Am., LLC, 329 F. Supp. 2d 255, 259 (D.P.R. 2004), or
otherwise created an exclusive agreement by action alone, see
Vulcan Tools of P.R. v. Makita USA, Inc., 23 F.3d 564, 569 (1st
Cir. 1994) ("Law 75 does not operate to convert non-exclusive
distribution contracts into exclusive distribution contracts.").
Trafon contends that its executives never saw these invoices, as
they were handled by clerical employees. Butterball, however,
cannot be faulted for Trafon's failure to read critical information
that it received on a regular basis. See Restatement (Second) of
Contracts § 157 cmt. b ("Generally, one who assents to a writing
-12-
III.
Because the 2009 letter constituted a detrimental act
under Law 75, Trafon's action is time-barred, and the judgment of
the district court is affirmed.
Affirmed.
is presumed to know its contents . . . .").
-13-
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114 N.H. 766 (1974)
JIMMY ST. PIERRE
v.
JOSEPH VITEK, WARDEN OF STATE PRISON.
No. 6881.
Supreme Court of New Hampshire.
November 29, 1974.
*767 McSwiney & Jones (Mr. Carroll F. Jones orally) for the plaintiff.
Warren B. Rudman, attorney general, and David W. Hess, assistant attorney general (Mr. Hess orally), for the defendant.
LAMPRON, J.
Petition for a writ of habeas corpus filed in the superior court on October 15, 1973. Plaintiff alleges that his plea of guilty of murder in the second degree which he entered on January 17, 1968, was not intelligent and voluntary. After a hearing, the Trial Court (Loughlin, J.) dismissed the petition and reserved and transferred plaintiff's exception thereto.
In April 1967, plaintiff, about twenty-one years old, was indicted for the first-degree murder in Newmarket of Amy Brousseau whom plaintiff shot on February 1, 1967, and who died on March 26, 1967, from the mortal wounds which she had received. He was arraigned before Morris, J., on May 1, 1967, and pleaded not guilty. On January 17, 1968, there was an on-the-record conference with the court by counsel for the State and former counsel for the plaintiff pertaining to the plaintiff's willingness to plead to a charge of murder of the second degree. Plaintiff's counsel informed the court that he was advising plaintiff to so plead. He further stated that he had already talked to the plaintiff about changing his previous plea and that he was to confer with him again.
On that afternoon the plaintiff appeared before the court and retracted his previous plea of not guilty to murder of *768 the first degree and pleaded guilty to murder in the second degree. The court, on the record, made inquiries of the plaintiff pertaining to his plea. In answer the plaintiff stated that he understood the nature of his plea, having discussed it with his counsel on a prior occasion and again on this day. He also stated that he realized he could receive a sentence of life imprisonment or for a term of years in State prison as a result of his plea. He further answered to the court's questioning that his plea was not made as a result of any offer or inducement on the part of the State and that he was entering the plea of his own free will. His counsel stated that in the presence of his secretary he had discussed the plea with his client that very afternoon.
Sentencing of the plaintiff was deferred to January 29, 1968. At that time the probation report was examined by the court and counsel and the following evidence was introduced. A girlfriend of the victim testified that she and Amy were walking home after school and were followed and later joined by the plaintiff. A discussion ensued between him and the victim as to the reason she refused to go out with him. At one point Jimmy told Amy he was going to kill her and then kill himself. The three finally went to the home of Amy's sister-in-law. The witness managed to leave and apprised Amy's mother of the situation, who in turn called the police. The friend later learned that Amy had been shot. The police officer who responded to the call testified that he saw Amy and Jimmy walking toward a lightly wooded area. He called him by name and asked him to stop. Jimmy then released Amy and shot her twice and continued to fire at her while she was lying on the ground.
A psychiatrist who examined Jimmy also testified. He had obtained plaintiff's life history and his version of the happening. His diagnosis was that Jimmy had an abnormal, stunted personality and was abnormally suspicious and sensitive. He had an eighth-grade education. There was conflict in the evidence as to whether plaintiff could read and write, although the doctor stated he could not. The doctor testified Jimmy was a psychopath and immature, although twenty-one years of age. The superintendent of the county jail, where the plaintiff had been confined, testified that plaintiff has *769 had some periods of depression but "he's been a good worker, gets along fine with the inmates". Counsel for the State then recommended life imprisonment. Defense counsel pleaded that the shooting happened under emotional circumstances and asked that his client be given rehabilitation opportunities. The court asked the plaintiff if he wanted to make a statement. He declined the offer.
On October 23, 1973, at the hearing on the petition for a writ of habeas corpus, the plaintiff testified that he had been indicted for first-degree murder which carried a penalty of capital punishment by hanging, while murder in the second degree would have a sentence of life imprisonment. He also testified that his attorney did not want to represent him on his not guilty plea and told him "the best way to do is to enter a plea of guilty" and the judge would probably give him "life or years". He testified that he was not advised he had a right to remain silent, to a jury trial, and to call witnesses on his own behalf.
It has long been the rule that guilty pleas to be valid must be intelligent and voluntary. State v. Manoly, 110 N.H. 434, 437, 270 A.2d 611, 613 (1970); see Kercheval v. United States, 274 U.S. 220 (1927). However, it was not until Boykin v. Alabama, 395 U.S. 238 (1969), that the State has the burden of proving by the record that a defendant who has pleaded guilty has intelligently and voluntarily waived certain pertinent constitutional rights. Since these requirements apply only to guilty pleas entered after June 2, 1969, they do not govern plaintiff's plea made January 17, 1968. Andrews v. Commonwealth, 282 N.E.2d 376 (Mass. 1972); Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969); see Halliday v. United States, 394 U.S. 831 (1969).
According to the pre-Boykin law, which we apply here, "whenever a defendant pleads guilty he is presumed to be aware of what he is doing." Commonwealth v. Holl, 434 Pa. 312, 313, 254 A.2d 11, 12 (1969). Hence, he bears the burden of proving by a preponderance of the evidence that his plea was made involuntarily or unknowingly. Huot v. Commonwealth, 292 N.E.2d 700, 706 (Mass. 1973). The trial court in arriving at its conclusions on plaintiff's petition for a writ of habeas corpus could properly consider the totality *770 of the circumstances revealed by the record of the proceedings at the time plaintiff's plea was entered as well as the plaintiff's testimony on his petition for habeas corpus. Id. at 705.
The trial court could disbelieve any part of plaintiff's testimony before him even if no testimony was introduced to rebut it. Although the psychiatrist testified before the sentencing to certain deficiencies in plaintiff's physical and mental make-up, these did not compel a finding that his plea was involuntary and unintelligent. Commonwealth v. Miller, 309 A.2d 705, 708 (Pa. 1973); Lesley v. Oklahoma, 407 F.2d 543 (10th Cir. 1969). Nor does the possibility that plaintiff may have traded a possible death sentence for a sentence to life imprisonment necessarily invalidate his plea. Brady v. United States, 397 U.S. 742, 752 (1970). The trial court could find on the evidence before it that plaintiff received the effective aid of counsel as to his plea and appeared to understand the matters discussed. Commonwealth v. Kozerski, 294 N.E.2d 460 (Mass. 1973). The court could further find from the record of the hearing when he entered his guilty plea, that the court's inquiries and plaintiff's answers revealed that the plea was knowingly and voluntarily entered. The dismissal of plaintiff's petition implies findings that the plea was knowingly entered and was not the result of coercion or of any other influence or constraint which rendered it involuntary.
Exception overruled.
All concurred.
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995 F.2d 67
Darrell Windell CHILDS, Petitioner-Appellant,v.James A. COLLINS, Director Texas Department of CriminalJustice, Institutional Division, Respondent-Appellee.
No. 91-1873.
United States Court of Appeals,Fifth Circuit.
July 13, 1993.
Cowles & Thompson, Dallas, TX, (Court-appointed), for petitioner-appellant.
S. Michael Bozarth, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before JOLLY, DAVIS, and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
1
Darrell Windell Childs appeals the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2254. For the reasons set forth below, we affirm the district court's denial of Childs's petition.
I.
2
On August 18, 1988, Childs was convicted in a Texas court on charges of aggravated robbery and was sentenced to 45 years imprisonment. Childs did not timely file a notice of appeal of that conviction.
3
Some three months after his conviction, Childs filed a petition for a writ of habeas corpus in the state trial court, alleging ineffective assistance of counsel that resulted in a denial of his right to appeal. Specifically, Childs asserted that he was not properly informed of his right to appeal and that his appointed counsel failed to give notice of appeal and withdrew from the case without notice to Childs or the trial court. Moreover, Childs alleged that his appointed trial counsel, King T. Solomon, had promised to escort Childs to court on August 24, 1988, for the purpose of signing appeal papers if he wished to appeal, but did not keep his alleged promise.
4
The state trial court requested an affidavit from Childs's trial counsel. After considering this affidavit, the court denied Childs's petition and found: (1) Childs was informed of his right to appeal by the trial court and his trial counsel; (2) Childs failed to timely notify anyone connected with the court of his desire to perfect an appeal; and (3) Childs's failure to make known his desire to appeal his conviction resulted in a waiver of his right to appeal.
5
After the Texas Court of Criminal Appeals summarily denied his request for habeas relief, Childs filed the instant habeas suit in the Northern District of Texas pursuant to 28 U.S.C. § 2254. The case was referred to Magistrate Judge William Sanderson, who recommended that the petition be denied and dismissed. The district court adopted the magistrate judge's recommendation and denied relief. This appeal followed.
II.
6
Childs's ineffective assistance of counsel claims are governed by Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 354, 102 L.Ed.2d 300 (1988), in which the Supreme Court held that a petitioner need not prove prejudice under Strickland when the actions complained of resulted in the actual or constructive denial of the assistance of counsel altogether. Thus, Childs need only satisfy Strickland 's requirement of showing that counsel's performance was so seriously deficient that he was not functioning as counsel. See United States v. Gipson, 985 F.2d 212, 215 (5th Cir.1993) ("If a petitioner can prove that the ineffective assistance of counsel denied him the right to appeal, then he need not further establish--as a prerequisite to habeas relief--that he had some chance of success on appeal."); Childress v. Lynaugh, 842 F.2d 768, 772 (5th Cir.1988) ("Prejudice resulting from the denial of a defendant's right to appeal is presumed because a criminal conviction can be attacked on numerous grounds and thus, given the likelihood of prejudice, a case-by-case inquiry is not worth the costs.").
7
It should also be noted that in a federal habeas proceeding, factual findings of a state court must be presumed correct unless they are not fairly supported in the record. 28 U.S.C. § 2254(d)(8). Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983).
8
Childs asserted in the district court that he had not been informed of his right to appeal, but he now acknowledges that the state court's factual finding with support in Solomon's affidavit precludes our consideration of that issue. Instead, Childs argues that his appointed trial counsel's failure to notice and perfect an appeal of his aggravated robbery conviction amounted to ineffective assistance of counsel.
9
Criminal defense counsel need not be omniscient, and they are not always omnipotent with respect to the protection of a client's rights. The duty to perfect an appeal on behalf of a convicted client does not arise on conviction, but when the client makes known to counsel his desire to appeal the conviction.1 What the Constitution does require is that the defendant be fully informed of his right to appeal. This would require that the client be advised not only of his right to appeal, but also of the procedure and time limits involved and of his right to appointed counsel on appeal. See Lumpkin v. Smith, 439 F.2d 1084, 1085 (5th Cir.1971). The state court found that Childs had been advised of his appellate rights, and there is nothing in the record to overcome the presumption of correctness that rests on the state court's finding.
10
The State contends that Childs was not denied effective assistance of counsel because he waived his right to appeal. The state habeas court expressly found a waiver of Childs's appellate rights. Ordinarily, courts require a voluntary and intelligent waiver of a known constitutional right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The right to appeal, however, is not a negative right to be used as a shield against government intrusion. Instead, it is a positive right that must be affirmatively exercised. See Norris v. Wainwright, 588 F.2d 130, 137 (5th Cir.) ("A defendant properly informed of his appellant rights may not 'let the matter rest,' and then claim that he did not waive his right to appeal." (citation omitted)), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979).
11
Consequently, waiver of the right to appeal requires only that there be a knowledge of the right to appeal and a failure to make known the desire to exercise that right. Gipson, 985 F.2d at 216; Meeks v. Cabana, 845 F.2d 1319, 1322 (5th Cir.1988); Norris, 588 F.2d at 135-37. The state court's finding of waiver is a factual finding, subject to a presumption of correctness under 28 U.S.C. § 2254(d). Gipson, 985 F.2d at 216; Meeks, 845 F.2d at 1323.2 Unlike Gipson, where the petitioner had clearly informed his attorney of his desire to appeal, Childs did not timely inform the court or his attorney of his desire to prosecute an appeal.
12
Solomon's failure to escort Childs to court does not excuse Childs's failure to make his desire to appeal known to Solomon. Further, under the circumstances, Solomon's agreement to escort Childs to court, by itself, is insufficient to overcome the state court finding that Childs never expressed his desire to appeal his conviction. The record demonstrates that Childs told Solomon that he had not decided whether he would appeal his conviction, and Solomon's promise to escort Childs to court the following week was conditioned implicitly on Childs's decision to appeal his conviction. When Solomon failed to show up the following week, Childs had sufficient time to notify Solomon or the court that he wished to appeal his conviction, but he never did.
13
We are bound to accept the state court's findings that Childs was informed of his appellate rights and failed to make known his desire to exercise those rights. These factual findings adequately support the state court's further finding that Childs waived his right to appeal. Therefore, having waived his right to appeal, Childs was not denied effective assistance of counsel on appeal.
CONCLUSION
14
For the assigned reasons, the district court's denial of habeas corpus relief is AFFIRMED.
1
In arguing that Solomon had the duty to continue to consult with Childs or the duty to represent Childs on appeal, Childs is trying to avoid the court's finding that Solomon properly advised him of his rights. Once Childs was informed of his right to appeal, then it was up to Childs to assert the right to the court or to Solomon. Solomon's alleged breach of professional ethics did not prevent Childs from voicing his intent to appeal
2
Although there was no live evidentiary hearing in the state habeas corpus proceeding, Childs does not challenge the adequacy of that proceeding for the purposes of section 2254(d)
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18 F.3d 936
Youngv.Mabus*
NO. 93-07400
United States Court of Appeals,Fifth Circuit.
Feb 22, 1994
1
Appeal From: N.D.Miss.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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149 Mich. App. 140 (1985)
386 N.W.2d 154
DUNMORE
v.
BABAOFF
Docket No. 79787.
Michigan Court of Appeals.
Decided December 9, 1985.
William E. Wade, for plaintiff.
Plunckett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Robert G. Kamenec), for defendant Babaoff.
Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman), for defendant Sinai Hospital.
Before: BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.
PER CURIAM.
Plaintiff filed a complaint in Wayne County Circuit Court on December 20, 1982, against defendants Dr. Babaoff and Sinai Hospital, alleging medical malpractice based upon Dr. Babaoff's performing an abortion upon plaintiff without her consent. The abortion was performed at Sinai Hospital. Plaintiff's complaint also alleged that Dr. Babaoff had fraudulently concealed from her the fact that she was pregnant, that he had performed an abortion and that he had not performed a complete salpinectomy.
*143 Following a hearing on July 20, 1984, defendants were granted summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C), as to plaintiff's fraudulent concealment claim and accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C), with respect to plaintiff's allegations of medical malpractice based on a running of the applicable period of limitations. MCL 600.5838; MSA 27A.5838. Plaintiff appeals as of right, claiming that the trial court erroneously granted defendants' motion for summary judgment.
On August 29, 1979, Dr. Babaoff performed surgery, a laparoscopy, a D & C (dilation and curettage) and tubal ligation, on plaintiff. During the course of the surgery, while plaintiff was under general anesthesia, Dr. Babaoff discovered that there was a possibility that plaintiff was pregnant. Medical records indicate that Dr. Babaoff performed a suction curettage, which brought forth some "natural grossly looking like embrial [sic] tissue". Dr. Babaoff then continued with the scheduled procedures. Plaintiff was under general anesthesia at the time and was not informed of Dr. Babaoff's discovery or that he had performed an abortion.
Plaintiff's deposition testimony indicates that she visited with Dr. Babaoff for a post-operative checkup about three or four weeks after the August 29, 1979, procedure. Plaintiff admits that, during the checkup, Dr. Babaoff informed her that at the time of the procedure her uterus was slightly enlarged and that there was a possibility that she may have been pregnant at that time. Dr. Babaoff also informed plaintiff that he would not be able to verify the fact that she was pregnant until he received the lab reports. Plaintiff informed Dr. Babaoff that she did not believe that *144 she was pregnant and made no further inquiries about the pregnancy. Dr. Babaoff apparently never informed the plaintiff of the findings of the lab reports.
Plaintiff took no further action relative to this case until May, 1982. At that time, plaintiff specifically requested a copy of her medical records from Sinai Hospital so that she could verify a statement made by another doctor concerning the presence of a tumor in her uterus. After reviewing the records, plaintiff realized that she had been pregnant at the time the August, 1979, procedure was performed. At that point, plaintiff took the records to an attorney who filed a complaint on her behalf against defendants alleging medical malpractice and fraudulent concealment of the fact that plaintiff was pregnant and that Dr. Babaoff had performed an abortion without plaintiff's consent.
The trial court found that defendants were entitled to accelerated judgment pursuant to GCR 1963, 116.2(5), now MCR 2.116(C)(7), because plaintiff's complaint was filed more than six months after plaintiff had discovered or should have discovered the existence of her claim and thus fell within the provisions of the applicable statute of limitations, MCL 600.5838; MSA 27A.5838. On appeal, plaintiff does not challenge the trial court's ruling on the medical malpractice claim.
The trial court also found that plaintiff had failed to demonstrate a genuine issue of material fact which would support a claim for fraudulent concealment. The court ruled that defendants were entitled to summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), on the fraudulent concealment claim because the undisputed facts established that Dr. Babaoff had advised plaintiff that she may have been pregnant and thus there was no affirmative act of concealment to support *145 the claim. The court also found that plaintiff's proposed amendment to the complaint would be futile under the facts of this case and denied plaintiff's motion to amend.
Plaintiff argues that the trial court erred in ruling that defendants were entitled to summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), on the fraudulent concealment claim. Plaintiff asserts that there were numerous issues of fact relative to her fraudulent concealment claim. We disagree.
A motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), has the limited function of determining whether material issues of fact exist. Goldman v Loubella Extendables, 91 Mich App 212, 217; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979). The motion should not be granted unless it is impossible for the opposing party to support his or her claim or defense because of some deficiency which cannot be overcome.
A claim of fraudulent concealment cannot postpone the running of the statutory period of limitation unless the fraud is manifested by an affirmative act or misrepresentation. Lumber Village, Inc v Siegler, 135 Mich App 685; 355 NW2d 654 (1984). In Buszek v Harper Hospital, 116 Mich App 650, 654; 323 NW2d 325 (1982), a medical malpractice case involving fraudulent concealment, we quoted from Delta v Winter, 258 Mich 293, 296; 241 NW 923 (1932), as follows:
"Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent."
The Court also stated that mere silence is not *146 enough. A fraudulent concealment claim cannot be established unless the plaintiff proves some affirmative act or misrepresentation on the part of the defendant which is designed to prevent subsequent discovery.
In this case plaintiffs deposition testimony indicates that there was no affirmative act or misrepresentation on the part of Dr. Babaoff which could form the basis of a fraudulent concealment claim. As early as September, 1979, Dr. Babaoff informed plaintiff that she may have been pregnant in August, 1979, when she underwent surgery. Also, Dr. Babaoff informed plaintiff that a D & C had been performed which should have indicated to plaintiff that, if she had been pregnant, the fetus would have aborted. It is clear from our review of the record that Dr. Babaoff did nothing to mislead or hinder the plaintiff's acquisition of information which would disclose a cause of action. See Sheldon v Sisters of Mercy Health Corp, 102 Mich App 91, 94; 300 NW2d 746 (1980). We conclude that the trial court properly granted defendants' motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10).
Plaintiff further contends that the trial court erred in ruling that plaintiff's complaint was insufficient to state a claim for fraudulent concealment, GCR 1963, 117.2(1), now MCR 2.116(C)(8), and in denying plaintiff the opportunity to amend the complaint.
Where a plaintiff seeks to toll the running of the statutory period of limitation by invoking the doctrine of fraudulent concealment, the acts or misrepresentations constituting fraudulent concealment must be pled in the complaint. Arent v Hatch, 133 Mich App 700, 706; 349 NW2d 536 (1984), lv den 419 Mich 939 (1984). In order to *147 properly plead a claim for fraudulent concealment in a malpractice action, the plaintiff must specifically set forth the acts or misrepresentations by the defendant which demonstrate a plan or scheme which was designed to prevent inquiry or escape investigation of a potential claim by the plaintiff. Buchanan v Kull, 323 Mich 381, 388; 35 NW2d 351 (1949); Tonegatto v Budak, 112 Mich App 575, 584; 316 NW2d 262 (1982). In this case, plaintiff merely alleged in conclusory terms that Dr. Babaoff fraudulently concealed the facts necessary for her claim. Plaintiff did not allege the factual circumstances upon which the claim of fraudulent concealment was premised. Therefore, the trial court correctly ruled that plaintiff failed to state a fraudulent concealment claim.
Plaintiff further contends that, even if her complaint was incomplete, she should have been permitted to amend her complaint to allege the necessary facts. GCR 1963, 118.1, now MCR 2.118(A), provides that motions to amend must be "freely given when justice so requires". A denial of such a motion, although discretionary, must be supported by specific findings as to why justice would not be served by the amendment. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). In this case, no abuse of discretion exists. The trial court expressly determined that any amendment to the complaint would be futile given the undisputed facts. The trial court specifically found that, because Dr. Babaoff actually informed plaintiff that she may have been pregnant, plaintiff could not establish the necessary factual prerequisite for a fraudulent concealment claim. Plaintiff's brief on appeal fails to state any facts which support plaintiff's claim that the trial court's ruling is erroneous.
Affirmed.
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871 A.2d 92 (2005)
183 N.J. 212
ZUIDEMA v. PEDICANO
Supreme Court of New Jersey.
March 16, 2005.
Petition for certification denied.
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806 F.2d 1303
Bankr. L. Rep. P 71,627In the Matter of Herman Neil YOUNG, Debtor.Herman Neil YOUNG, Appellant,v.David V. ADLER, Trustee, Appellee.
No. 86-3567Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Jan. 7, 1987.
Emile L. Turner, Jr., New Orleans, La., for appellant.
Merrill T. Landwehr, New Orleans, La., for appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.
REAVLEY, Circuit Judge:
1
The district court affirmed the bankruptcy court's judgment that attorney's fees paid to the appellant/debtor, in the form of an annuity, were not exempt from the bankruptcy estate. 64 B.R. 611. Both courts also agreed that the appellee/trustee had not failed to object timely to this claimed exemption. We affirm.
2
* On July 20, 1984, Herman Neil Young (Debtor), an attorney, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Initially, Debtor failed to list in his schedules income in the sum of $1,875 per month from First Colony Life Insurance Company paid pursuant to an annuity contract dated July 1, 1982. The annuity contract resulted from Debtor's representation of the surviving spouse and children of Edwin Joseph Fanguy in a death claim against Offshore Logistics, Inc., Offshore Logistics International, Inc., Air Logistics International, their affiliated companies and underwriters (hereinafter referred to as "underwriters"). A structured settlement was entered into by and between all parties in interest, including Debtor as counsel of record. This agreement provided Debtor $25,000 immediately, and monthly payments of $1,875 for the period of fourteen years, beginning on August 1, 1982 and terminating on July 1, 1996. The monthly payments were to come from an annuity contract, executed by Gerald J. Sullivan & Associates, Inc. (Sullivan), for the benefit of Neil Young, and issued by First Colony Life Insurance Company.
3
On January 14, 1985, the trustee of Debtor's estate, David V. Adler (Trustee), filed a motion against Sullivan requesting that Sullivan, as owner of the contract, be directed to pay all future annuity payments to Trustee. In addition, Trustee filed a motion to require Debtor to turn over $11,250 he received pursuant to the annuity contract subsequent to filing the bankruptcy petition.
4
On January 31, 1985, Debtor amended his Statement of Financial Affairs to include the annuity as personal property, but claimed that it was exempt from the bankruptcy estate. Debtor listed the annuity as having a zero value because he claimed to have no interest in it, being the beneficiary rather than the owner of it. Debtor also filed objections to Trustee's motions seeking to require him to remit past annuity payments and Sullivan to remit future payments. On March 15, 1985, Trustee filed an objection to Debtor's claimed exemption of the annuity payments. Debtor contends that Trustee's objection was not timely filed, and, in any case, the claimed exemption was proper. We consider Debtor's contentions in turn.
II
5
Bankruptcy Rule 4003(b) provides as follows:
6
Objections to Claim of Exemptions. The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list unless, within such period, further time is granted by the court. Copies of the objections shall be delivered or mailed to the trustee and to the person filing the list and his attorney.
7
Debtor amended his filing statement on January 31, 1985, claiming an exemption for the annuity and Trustee objected to this claim on March 15, about 44 days later. Because Trustee's objection exceeded the statutory limit, Debtor argues that it is time barred.
8
The basic purpose of the thirty day requirement in Rule 4003(b) is to ensure timely notice to debtors that the trustee objects to their claimed exemptions. In this case, Debtor amended his filing statement to include the annuity he claims to be exempt only after Trustee filed a motion arguing that the annuity is part of the bankruptcy estate. Trustee levied his objections, thus effectively complying with the rule, prior to Debtor's amending of his statement. Debtor does not, and surely cannot, complain that he did not have actual notice of Trustee's objections. To allow Debtor to gain refuge behind Rule 4003(b) when he amended his financial statement in response to Trustee's objections would be to elevate form over substance. We cannot countenance such a wooden application of the Bankruptcy Rules.
III
9
Upon commencement of an action in bankruptcy, all property in which the debtor has a legal or equitable interest becomes property of the bankruptcy estate. 11 U.S.C.A. Sec. 541 (1979); McManus v. Avco Financial Services of Louisiana, Inc. (In re McManus), 681 F.2d 353, 354 (5th Cir.1982); Allen v. Hale County State Bank (In re Allen), 725 F.2d 290, 292 (5th Cir.1984). Once the property becomes a part of the bankruptcy estate, the debtor may exempt certain property. In re McManus, 681 F.2d at 354; In re Allen, 725 F.2d at 292. Under Title 11, section 522(b) of the United States Code, States have a choice of allowing their debtors one of two methods of exempting property from the bankruptcy estate. In In re McManus we explained the federal scheme as follows:
10
First, depending upon state law, a debtor may be entitled to utilize the federal "laundry list" exemptions specified in section 522(d). Use of the federal laundry list is precluded, however, if "the state law that is applicable to the debtor ... specifically does not ... authorize" its use. In those instances in which state law precludes use of the federal laundry list, a debtor may exempt from property of the bankruptcy estate any property that is legally exempt under either (1) federal law other than the previously described laundry list or (2) applicable state or local law.
11
681 F.2d at 355 (footnotes excluded).
12
Louisiana has not authorized the use of the federal "laundry list," and has expressly decreed that the only property a debtor may exempt is such property allowed "under the laws of the State of Louisiana and under federal laws other than Subsection (d) of Section 522 of said Title 11 of the United States Code." La.Rev.Stat.Ann. Sec. 13:3881(B)(1) (West Supp.1986). Therefore, a Louisiana debtor is only entitled to exempt property from the bankruptcy estate that is exempted under Louisiana law, and federal law other than the federal laundry list.
13
In this case, Debtor argues that under two Louisiana statutes, La.Rev.Stat.Ann. Sec. 20:33 (West Supp.1986)1 and Sec. 22:647(B) (West 1978),2 the payments made pursuant to the annuity contract are exempt from liability. We turn, therefore, to the question whether the present payments are exempt under Sec. 20:33 and/or Sec. 22:647 as proceeds from an "annuity," or are part of the estate as accounts receivable.
14
An annuity is a "right to receive fixed, periodic payments, either for life or for a term of years," whereas an account receivable is a "claim against a debtor usually arising from sales or services rendered." Black's Law Dictionary 82, 17 (5th ed. 1979); see also In re Howerton, 21 B.R. 621, 623 (Bankr.N.D.Tex.1982) ("an annuity is essentially a form of investment which pays periodically during the life of the annuitant or during a fixed term by contract rather than on the occurrence of a future contingency"). While the payments Debtor claims to be exempt are, strictly speaking, an "annuity," they are also accounts receivable. We must, therefore, pierce the veil of this arrangement to determine its true nature.
15
We have been unable to find any court that has identified the exact point at which an account receivable becomes an annuity deserving exemption under Louisiana law. In Beisel v. Commonwealth, 338 Pa. 519, 9 A.2d 419, 421 (1940), however, the Pennsylvania Supreme Court provided some instructive words on the difference between an annuity and an account receivable:Its determining characteristic is that the annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be derived. The purchaser of an annuity surrenders all right and title in and to the money he pays for it. On the other hand, where a debtor agrees to pay his creditor in installments at regular intervals, the debt or principal sum itself is due to the creditor although payable only in the manner agreed upon; it is an account receivable in which he has a property interest. Therefore, installment payments of a debt, or payments of interest on a debt, do not constitute an annuity.
16
It is the substance of the arrangement rather than the label affixed to it that determines whether the payments are exempt under the Louisiana statutes as proceeds from an annuity, or accounts receivable, and part of the bankruptcy estate. The $155,196 that made up the principal of the "annuity" was part of the payment Debtor received for services rendered on behalf of the Fanguy family in 1982. Young, as creditor, elected to receive his fees in regular monthly payments over a fourteen year period. It appears, then, that the monthly payments made to Young represent nothing more than installment payments on debts to cover the attorney's fees owed by the Fanguys.
17
Yet, if Young had accepted the total fees in 1982, paid taxes on the income and then purchased an annuity policy with the remainder, the payments clearly would be exempt, since he would have transferred his interest in the funds as consideration for the periodic payments he was to receive. The important factual distinction between this scenario and the present case was explained by the bankruptcy court in this case as follows:
18
In the present case, the Underwriters paid a single premium of $155,196.00 to Sullivan in consideration for the annuity policy which would pay the Underwriter's monthly obligation of $1,875.00 to the Debtor. The Debtor, however, retains an interest in the principal debt which the Underwriters owe him in monthly installments.... Thus the Debtor has an interest in not just the payments under the annuity, but in a larger sense also in the principal fund or source--the installment debt owed him by the Underwriters--just as if he had left the money with the Underwriters and agreed to accept payment in installments. [Emphasis added.]
19
Under the settlement agreement, as each monthly payment is made it reduces by a proportionate amount the underwriters' debt. Young, therefore, retains a right against the underwriters to the remaining principal until the debt is fully extinguished after fourteen years. Retaining such a right renders the so-called annuity, in substance, nothing more than an account receivable, and not exempt from the bankruptcy estate.
20
AFFIRMED.
1
La.Rev.Stat.Ann. Sec. 20:33 provides:
The following shall be exempt from all liability for any debt except alimony and child support:
(1) All pensions, all proceeds of and payments under annuity policies or plans, all individual retirement accounts, all Keogh plans, all simplified employee pension plans, and all other plans qualified under Sections 401 or 408 of the Internal Revenue Code. However, an individual retirement account, Keogh plan, simplified employee pension plan, or other qualified plan is only exempt to the extent that contributions thereto were exempt from federal income taxation at the time of contribution, plus interest or dividends that have accrued thereon. No contribution shall be exempt if made less tha[n] one calendar year from the date of filing for bankruptcy, whether voluntary or involuntarily, or less than one calendar year from the date writs of seizure are filed against such account or plan.
2
La.Rev.Stat.Ann. Sec. 22:647(B) provides:
The lawful beneficiary, assignee, or payee, including the annuitant's estate, of an annuity contract, heretofore or hereafter effected, shall be entitled to the proceeds and avails of the contract against the creditors and representatives of the annuitant or the person effecting the contract, or the estate of either, and against the heirs and legatees of either such person, saving the rights of forced heirs, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use.
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Opinion filed January 27,
2011
In The
Eleventh
Court of Appeals
__________
No. 11-09-00081-CV
__________
IN THE MATTER OF M.L.C., A JUVENILE
On
Appeal from the County Court at Law
Midland
County, Texas
Trial
Court Cause No. 5877
M E M O R A N
D U M O P I N I O N
The
jury found that M.L.C. had engaged in two counts of delinquent conduct: theft
of property valued between $50 and $500 and felony aggravated assault. The
trial court proceeded with the disposition and ordered that M.L.C. be committed
to the Texas Youth Commission. We affirm.
On
appeal, M.L.C. presents two issues challenging the sufficiency of the evidence
to support the jury’s findings that he committed theft and that the assault was
aggravated. We will review all of the evidence and
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443
U.S. 307 (1979); Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010); In re M.C.S., Jr., No.
02-09-00332-CV, 2010 WL 4138554 (Tex. App.—Fort Worth Oct. 21, 2010, no pet.); see
Tex. Fam. Code Ann. § 54.03(f)
(Vernon Supp. 2010); see also In re M.R., 846 S.W.2d 97, 101 (Tex. App.—Fort Worth 1992), writ
denied, 858 S.W.2d 365 (Tex. 1993). The jury, as the trier of fact,
is the sole judge of the credibility of the witnesses and of the weight to be
given to their testimony. Tex. Code
Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). As
such, the jury was free to believe or disbelieve all or any part of any
witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.
App. 1986); In re R.P., 37 S.W.3d 76, 78 (Tex. App.—San Antonio 2000, no
pet.).
Theft
In
his first issue, M.L.C. contends that the evidence is insufficient to show that
he stole the cell phone or that he knew it was stolen when he received it. A
person commits the offense of theft if he unlawfully appropriates property with
the intent to deprive the owner of that property. Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2010).
Appropriation of property is unlawful if it is without the owner’s effective
consent or if the property is stolen and the actor appropriates the property
knowing it was stolen by another. Id. § 31.03(b).
It
is undisputed that M.G., a friend of M.L.C., stole a cell phone belonging to
Guadalupe Barraza from a school locker that was shared by M.G. and Barraza.
M.G. hesitantly testified that M.L.C. told her to take the phone, that he gave
her $20, and that there was peer pressure from others for her to take the phone
or suffer getting beaten up by M.L.C.’s sister. When confronted at school with
the theft, M.L.C. was uncooperative. He told the assistant principal that he
knew where the phone was but that he “no longer had the phone.” M.L.C. later told
the assistant principal that he paid for the phone, that it was his, and that
he did not care if it was stolen. At trial, M.L.C. testified that he returned
the phone when he found out it had been stolen. Barraza testified, however,
that her phone was never returned to her. We hold that the evidence is
sufficient to support the jury’s verdict; there was evidence from which a
rational jury could have found that M.L.C. appropriated the phone knowing that
it had been stolen. The first issue is overruled.
Aggravated
Assault
In
his second issue, M.L.C. contends that the evidence is insufficient to show
that he committed the offense of aggravated assault. The jury found that
M.L.C. committed the offense of aggravated assault upon Bill McGrew by hitting
or striking him on the head with a glass ashtray. It is undisputed that M.L.C.
struck McGrew on the head with a glass ashtray. What is disputed is whether
this assault constitutes simple assault or aggravated assault. The offense of
aggravated assault can be committed in two different ways, either of which will
support a conviction. Tex. Penal Code
Ann. § 22.02 (Vernon Supp. 2010). Under Section 22.02(a)(1), the
offense is committed if the person commits an assault and “causes serious
bodily injury to another.” Under Section 22.02(a)(2), the offense is committed
if the person commits an assault and “uses or exhibits a deadly weapon during
the commission of the assault.” The petition and the jury charge in this case
included each of these alternate means of committing aggravated assault.
We
agree with M.L.C. that the evidence does not show that he caused “serious
bodily injury” to McGrew. Serious bodily injury means “bodily injury that
creates a substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Tex. Penal Code Ann.
§ 1.07(a)(46) (Vernon Supp. 2010). The evidence showed that McGrew’s
head wound bled profusely, leaving pools of blood on a sheet, and that it
required thirteen stitches, but there was no evidence regarding a risk of
death, disfigurement, or protracted impairment.
We
disagree with M.L.C.’s contention that the evidence is insufficient to show
that the ashtray was a deadly weapon. A deadly weapon can be “anything that in
the manner of its use or intended use is capable of causing death or serious
bodily injury.” Id. § 1.07(a)(17)(B). The record shows that the
remains of the shattered ashtray were introduced into evidence as an exhibit
for the jury to see. Officer Demetrius Lee was the only witness who testified
regarding the ashtray being a deadly weapon. He was asked: “In your training
and experience as a police officer, could a glass ashtray striking someone in
the head be used as a deadly weapon?” The officer answered affirmatively. The
injuries inflicted on the victim may also be considered in determining whether
a deadly weapon was used. Lane v. State, 151 S.W.3d 188, 191 (Tex.
Crim. App. 2004). The evidence indicated that McGrew’s head bled profusely. A
picture showing the pools of blood at the scene of the offense was admitted
into evidence as an exhibit. Officer Lee testified that he went to the
hospital and observed that the bandage around McGrew’s head was soaked in
blood. Though the testimony regarding the ashtray being a deadly weapon was
not well developed, that testimony along with the exhibits and the injury
suffered by McGrew were sufficient to support the jury’s verdict that M.L.C.
committed the offense of aggravated assault by means of his use of the ashtray
as a deadly weapon. The jury could have found that the ashtray, in the manner
of its use in this case, was capable of causing death or serious bodily injury.
M.L.C.’s second issue is overruled.
The
judgment of the trial court is affirmed.
JIM
R. WRIGHT
CHIEF
JUSTICE
January 27, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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___________
No. 95-2202
___________
Jeffrey L. Peitzmeier; Sherry L. *
Peitzmeier, *
*
Appellants, *
* Appeal from the United
v. * States District Court for
* the District of Nebraska.
Hennessy Industries, Inc., a New *
Jersey Corporation, d/b/a through *
its divisions Coats Company and *
Solar Industries, Inc., *
*
Appellee. *
___________
Submitted: December 12, 1995
Filed: October 4, 1996
___________
Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER,* District Judge.
___________
BOWMAN, Circuit Judge.
Jeffrey Peitzmeier and his wife, Sherry, appeal the adverse grant of
summary judgment by the District Court1 in their product liability suit
against Hennessy Industries, the manufacturer of the tire-changing machine
at issue in this case. We affirm.
*The HONORABLE WILLIAM W. SCHWARZER, United States
District Judge for the Northern District of California,
sitting by designation.
1
The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska.
I.
The background facts are not in dispute. This action arose out of
an accident that took place when Jeffrey Peitzmeier, a mechanic at Top Tech
Automotive Garage in Yutan, Nebraska, was changing a tire using a Hennessy
tire-changing machine.
The advantage of the Hennessy design is that the operator changes the
tire on a platform above the ground instead of kneeling down or bending
over and doing the work on the ground. The machine makes it easier to
deflate and demount the old tire and to mount and inflate the new tire.
Removing air from the old tire is accomplished by a "bead loosener," a
mechanism that pushes the tire away from the rim of the wheel. On the
Hennessy RC20-AA tire changer, the model at issue here, the bead loosener
is on the side of the machine. After the bead loosening process is
complete, the operator places the tire and wheel onto the platform of the
machine, where clamps are placed on the rim of the wheel to hold it in
place for the demounting, mounting, and inflation phases of the tire-
changing procedure.
In inflating the tire, the operator uses an inflation hose, which he
controls by depressing a foot pedal. An air pressure gauge displays the
pressure in the tire in "psi" (pounds per square inch) as the operator
inflates the tire. Proper inflation requires seating the "beads" (small
wires in the wall of the tire) against the outer flanges of the wheel.
When the beads seat they emit a "pop" sound, indicating that the tire then
may be inflated to its service pressure.
Top Tech bought the tire changer from Hennessy in 1988. It came with
a customer information packet consisting of operating instructions,
warranty information, and warnings. The printed instructions and bold face
labels included warnings: (1) that until the beads are seated a tire should
not be inflated in excess of
-2-
forty psi, (2) that over-inflation can cause an explosion of the tire that
may propel the tire, rim, or equipment upward with sufficient energy to
cause injury or death, (3) that the operator should keep his hands and body
away from the inflating tire, (4) that the tire and rim should be inspected
for wear or defects before mounting, and (5) that the tire changer is not
intended to be a safety device for restraining exploding tires, tubes,
rims, or bead-seating equipment. Peitzmeier was an experienced garage
mechanic who, from 1988 to June 4, 1992, the date of the accident, had used
the tire changer without incident approximately 150 to 200 times. On the
occasion that gave rise to this lawsuit, Peitzmeier attempted to mount a
sixteen-inch tire on a sixteen-and-one-half-inch wheel.
Because Peitzmeier had mismatched the smaller tire and the larger
wheel, the tire would not properly fit, or "bead up," on the rim. After
some difficulty, Peitzmeier asked the owner of the garage, Lyle Foster, to
help him. Foster suggested that Peitzmeier beat on the tire with a rubber
mallet. Peitzmeier tried beating on the tire with a mallet, but the tire
still did not fit properly. Foster next suggested that Peitzmeier add more
air to the tire. Despite Hennessy's warning labels stating that the
operator should not inflate the tire to more than forty psi while seating
beads and that over-inflation can cause the tire to explode, Peitzmeier
added more air to the tire, increasing the tire pressure to sixty psi.
When Foster learned that Peitzmeier was still having problems
changing the tire, he examined the tire himself and discovered the mismatch
of smaller tire to larger wheel. When Foster explained to Peitzmeier that
he had mismatched the tire and wheel, Peitzmeier responded, "Oh, no
wonder," and began to release air from the tire. As Peitzmeier did so, the
tire exploded and he was injured as the force of the explosion propelled
the tire and rim into his face and head.
-3-
The Peitzmeiers filed suit against Hennessy, alleging causes of
action in strict liability and negligence.2 After discovery had been
completed, Hennessy filed a motion for summary judgment, arguing, among
other things, that the testimony of the Peitzmeiers' expert, Alan Milner,
was inadmissible under Federal Rule of Evidence 702 as interpreted by the
United States Supreme Court in Daubert v. Merrell Dow Pharmecuticals, Inc.,
113 S. Ct. 2786 (1993).
The District Court granted Hennessy's motion for summary judgment,
holding that Milner's testimony was inadmissible under Federal Rule of
Evidence 702 and Daubert, and that based on the admissible, undisputed
evidence Hennessy was entitled to judgment as a matter of law. The
Peitzmeiers appeal.
II.
The Peitzmeiers argue that the District Court abused its discretion
in excluding Milner's testimony. Decisions concerning the admission of
expert testimony lie within the broad discretion of the trial court, and
these decisions will not be disturbed on appeal absent an abuse of that
discretion. Westcott v. Crinklaw, 68 F.3d 1073, 1075 (8th Cir. 1995).
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702, which states:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact issue, a witness qualified as an
2
The Peitzmeiers evidently have abandoned their negligence
claims on appeal, as their arguments focus only on strict liability
for design defect and strict liability for failure to warn. In any
case, our analysis would apply with even stronger force to any
asserted negligence claims, since such claims have a higher
threshold of proof than strict liability claims.
-4-
expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
The Supreme Court in Daubert makes it plain that the trial court is to act
as a gatekeeper in screening such testimony for relevance and reliability,
that is, make an assessment whether the reasoning and methodology
underlying the testimony is scientifically valid. See Daubert, 113 S. Ct.
at 2796. In doing so, the court should consider, among other factors (1)
whether the theory or technique "can be (and has been) tested"; (2)
"whether the theory or technique has been subjected to peer review and
publication"; (3) "the known or potential rate of error"; and (4) whether
the theory has been generally accepted. Id. at 2796, 2797.
In this case, the Peitzmeiers sought to establish through Milner's
testimony that the tire changer was defectively designed. Milner would
have testified that in his opinion simple design changes on the machine
would eliminate the potential for injuries and that the tire changer is
defective in design in that (1) the machine acted as a "launch pad" for the
exploding tire and wheel assembly, (2) the clamps did not restrain the
exploding tire and wheel assembly, (3) the machine could not limit the
amount of air pressure the operator could put into the tire, (4) the
machine had no interlock system that would prevent the operator from
inflating the tire unless the restraint system was in place, and (5) the
machine had no mirror or other device by which the operator could inspect
the lower bead during inflation.
As a threshold matter, the Peitzmeiers argue that Daubert is
inapplicable to Milner's testimony, contending that his opinions are
founded on basic engineering principles, whereas Daubert applies only to
novel scientific testimony. This argument fails, for our Court has not
given Daubert so narrow a reading. See, e.g., Gier v. Educational Serv.
Unit No. 16, 66 F.3d 940, 943-44
-5-
(8th Cir. 1995) (applying Daubert to psychological evaluations in cases of
alleged child abuse); Pestel v. Vemeer Mfg. Co., 64 F.3d 382, 384 (8th Cir.
1995) (applying Daubert to testimony of mechanical engineer). We conclude
that the Daubert analysis is properly applied to Milner's proffered
testimony.
We first consider whether Milner's theories or techniques have been
tested. In that regard, Milner concedes that he has neither designed nor
tested for safety or utility any of the proposed safety devices that he
claims are missing from the Hennessy tire-changing machine. His only
demonstration of an alternative design is a series of rough sketches that
have not been adapted into engineering drawings, much less prototypes.
Milner has shown no factual basis to support an opinion that his design
changes are feasible or that they would not hinder the efficacy of
Hennessy's present tire-changing model.
At the heart of Milner's opinion that the tire changer was defective
is his theory that the rotating platform on the tire changer acted as a
launch pad, which served to propel the tire upward when the explosion
occurred. Milner admits, however, that he has never designed, built, or
tested a platform that has been shown to reduce the launch effect of an
exploding tire and wheel assembly while adequately supporting the tire and
wheel assembly during the tire-changing process. Clearly, Milner's
proffered testimony does not satisfy the first Daubert factor.
Next we consider whether the theory or technique has been subjected
to peer review. While not required for admissibility, "submission to the
scrutiny of the scientific community is a component of `good science,' in
part because it increases the likelihood that substantive flaws in
methodology will be detected." Daubert, 113 S. Ct. at 2797. In this
regard, not one of Milner's proposed changes to the tire-changing machine
has been subjected to peer review. The Peitzmeiers argue that Milner's
theories have in
-6-
fact been subjected to peer review because he has testified about them in
court in other products liability cases. We reject the suggestion that
cross-examination at trial and the number of Milner's court appearances in
design-defect cases can take the place of scientific peer review. Because
Milner's concepts are unfinished and untested, and have not been subjected
to peer review, any testimony from Milner about how his proposed design
changes would have reduced Peitzmeier's injuries is wholly speculative.
The final Daubert factors are the known or potential rate of error
and the general acceptance in the scientific community of the proffered
theories. Because Milner has not conducted any experiments or testing of
any kind, there cannot be a known rate of error for his results. Likewise,
no evidence is offered concerning a "potential" rate of error. Moreover,
the Peitzmeiers offer no testimony regarding the general acceptance of
either Milner's theory or his methodology.
Having carefully reviewed Milner's proffered testimony on design
defect in light of the factors enumerated in Daubert, we conclude that the
District Court did not abuse its discretion in excluding this testimony
because of its failure to satisfy the standards of Rule 702.3
The Peitzmeiers also argue that the District Court erred in excluding
Milner's testimony regarding consumer expectation. We need not and do not
address this issue. Testimony on consumer expectation is relevant only to
show that a defect in a product
3
The Peitzmeiers' citation to the opinion of another federal
district court that denied a similar motion to exclude Milner's
testimony in a tire changer case is unavailing. See Meneely v.
Denman Tire Corp., No. 93-10151 (N.D. Fla. July 20, 1995). The
conclusions reached by a district court in a different case have no
bearing on the question of whether the District Court abused its
discretion in this case.
-7-
makes the product unreasonably dangerous and unsafe for its intended use.
Here we do not reach that step of the analysis, because we hold that the
Peitzmeiers have failed to survive summary judgment on the antecedent
question of whether there was a defect in the Hennessy tire changer. See
infra part III.A.
III.
The Peitzmeiers argue that the District Court erred in granting
summary judgment for Hennessy on their strict liability defective-design
and failure-to-warn claims. We review de novo. Brodnicki v. City of
Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996), petition for cert. filed, 65
U.S.L.W. 3086 (U.S. July 23, 1996) (No. 96-129). We will affirm the
judgment if the record shows that there is no genuine issue of material
fact and the prevailing party is entitled to judgment as a matter of law.
Id.; see also Fed. R. Civ. P. 56 (c).
With Milner's testimony properly excluded, we conclude there are no
genuine factual disputes on these claims and that Hennessy is entitled to
judgment as a matter of law.
A.
To defeat Hennessy's motion for summary judgment on the Peitzmeiers'
claim of strict liability for defective design under Nebraska law (which
the parties agree applies here), the Peitzmeiers needed to show genuine
issues of material fact on the five elements of the cause of action: that
Hennessy placed the tire changer on the market knowing that it would not
be inspected for defects before use; that the tire changer was defective
when sold; that the alleged defect was a proximate cause of the injuries
Peitzmeier sustained while using the tire changer "in the way and for the
general purpose for which it was designed and intended"; that the alleged
defect made the tire changer "unreasonably
-8-
dangerous and unsafe for its intended use"; and that Peitzmeier's "damages
were a direct and proximate result of the alleged defect." Kudlacek v.
Fiat S.p.A., 509 N.W.2d 603, 610 (Neb. 1994) (quoting syllabus of the court
in Rahmig v. Mosley Mach. Co., 412 N.W.2d 56, 58-59 (Neb. 1987)).
The Peitzmeiers have not presented any evidence, apart from Milner's
inadmissible opinions, to support a finding of defective design. Instead,
the evidence all points in one direction: toward a finding that the tire
changer was not defective, and that it certainly was not the proximate
cause of Peitzmeier's injuries. The tire changer was sold in its intended
condition, free of any manufacturing defects, and had been used by
Peitzmeier before the accident some 150 to 200 times without incident. The
Peitzmeiers offer no evidence that the machine was designed or marketed to
prevent a tire from exploding or to restrain a tire if it did explode, so
it follows that the machine's failure to so do in this case was not a
defect. Further, there is no evidence that the tire changer itself
exploded or that it caused the tire and wheel assembly to explode.
Instead, the uncontroverted evidence shows that Peitzmeier's over-inflation
of the tire and mismatching of the tire and the wheel caused the explosion.
As any adult--most especially an experienced mechanic--would surmise, an
overinflated tire (especially one smaller than the wheel on which it is
mounted) is prone to explode. Here it was the operator, not the tire-
changing machine, who mismatched the tire and wheel and then inflated the
tire well beyond the recommended safe psi.
The District Court properly determined that Hennessy was entitled to
summary judgment on the Peitzmeiers' defective design claim.4
4
The Peitzmeiers argue that "crashworthiness" or "enhanced
injury" should apply to their case. The crashworthiness theory is
used to hold automobile manufacturers liable where, even though an
alleged defect in the automobile was not the proximate cause of the
initial collision, a manufacturer may nonetheless be liable for
injuries sustained in the second collision within the vehicle.
Kudlacek v. Fiat S.p.A., 509 N.W.2d 603, 610 (Neb. 1994). "Under
a theory of crashworthiness, the manufacturer is liable for only
that portion of the damages caused as a result of the defective
design. Therefore, the plaintiff must show that his injuries were
enhanced as a result of the defective design of the vehicle." Id.
-9-
B.
The Peitzmeiers also argue that Hennessy knew of the "bead hang-up"5
phenomenon, and its relationship to the "launch pad" effect, and did not
adequately warn of these dangers on the tire changer. The Peitzmeiers do
not allege that Peitzmeier himself did not know of the dangers of "bead
hang-up," but only that Hennessy provided no warnings of the danger.
Under section 402A of the Restatement (Second) of Torts, although a
product may be free from manufacturing or design defects, it nonetheless
may be defective if the manufacturer fails to warn or inadequately warns
users about dangers inherent in the use of the product that the
manufacturer knows exist and about which the user is likely to be unaware.
Restatement (Second) of Torts § 402A cmt. j (1965). The duty to warn does
not arise, however, "if the user knows or should know of the potential
danger, especially when the user is a professional who should be aware of
In cases involving "indivisible" injury, a plaintiff must establish
that the alleged defect was a substantial factor in causing the
alleged enhanced injuries. Id. at 611. Because the Peitzmeiers
have failed to survive summary judgment on their claim that the
tire changer is a defective product, we need not and do not reach
the issue of enhanced injury.
5
The "bead hang-up" phenomenon occurs on those occasions when
the operator of a tire changer is unable to mount a tire because a
wheel-tire mismatch, rust, imperfections in the wheel, improper
lubrication, or other condition causes one or more of the tire
beads to "hang up" and not slide across the wheel surface and seat
against the rim. If the operator tries to force a "hung-up" bead
to seat by over-inflation of the tire, the bead wires in the tire
can break, causing a sudden release of pressurized air--an
explosion.
-10-
the characteristics of the product." Strong v. E.I. DuPont de Nemours Co.,
667 F.2d 682, 687 (8th Cir. 1981) (applying Nebraska law in negligent
failure to warn case).
As previously mentioned, the Hennessy tire changer was equipped with
explicit warnings. "Where warning is given, the seller may reasonably
assume that it will be read and heeded; and a product bearing such a
warning, which is safe for use if it is followed, is not in defective
condition, nor is it unreasonably dangerous." Restatement (Second) of
Torts § 402A cmt. j. The warnings provided by Hennessy describe the
hazards of over-inflation, warn the operator not to exceed forty psi of air
pressure to seat beads, and warn the user never to exceed the tire
manufacturer's recommended air pressure. The warnings on the tire changer
not only alert the operator to the danger of serious injury or death if all
warnings are not followed, but they also specifically warn the operator to
keep his hands and entire body away from the inflating tire. Furthermore,
the warning label gives notice that the tire changer is not intended to be
a safety device for restraining exploding tires. These warnings fully
satisfy any duty to warn that may have been present in this case.
Finally, even if we assume for the sake of argument that the warnings
were somehow inadequate, the Peitzmeiers have made no showing that any such
inadequacy was the proximate cause of Peitzmeier's injuries. "If, despite
deficient warnings by the manufacturer, a user is fully aware of the danger
which a warning would alert him or her of, then the lack of warning is not
the proximate cause of the injury." Strong, 667 F.2d at 688 (negligent
failure to warn).
In this case, Peitzmeier is an experienced mechanic who was familiar
with the Hennessy tire changer and who had used it to change between 150
and 200 tires before the accident. Peitzmeier testified in his deposition
that he had read all of the Hennessy
-11-
warning labels on the tire changer. Despite the presence of such warnings,
Peitzmeier testified that it was his practice to exceed the service
pressure rating on the tire by as much as ten psi in order to seat the
beads. It is undisputed that the explosion occurred after Peitzmeier
mismatched a sixteen-inch tire on a sixteen-and-one-half-inch wheel and
then, disregarding Hennessy's clear warnings, greatly overinflated the
tire. In these circumstances, it is beyond cavil that an inadequate
warning was not the proximate cause of Peitzmeier's injuries. The District
Court thus properly granted summary judgment in favor of Hennessy on the
Peitzmeiers' failure-to-warn claim.
IV.
The judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-12-
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905 F.2d 1538
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Roger L. JUSTICE, Petitioner-Appellant,v.Norris W. MCMACKIN, Supt., Respondent-Appellee.
No. 89-4026.
United States Court of Appeals, Sixth Circuit.
June 18, 1990.
Before MILBURN and DAVID A. NELSON, Circuit Judges; and ENGEL, Senior Circuit Judge.
ORDER
Roger L. Justice appeals an order of the district court which dismissed his petition for a writ of habeas corpus. He now moves for bail pending appeal. Upon review of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
In August 1986, Justice was found guilty of three counts of aggravated robbery and was sentenced to consecutive terms of six to twenty-five, six to twenty-five, and seven to twenty-five years imprisonment. Because the jury found that he had used a firearm during the commission of those offenses, the trial court directed that Justice actually serve at least nine years of those sentences. Upon the unsuccessful conclusion of his direct appeal in state court, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in the District Court for the Northern District of Ohio. In support of his request for that relief, he alleged that his convictions were invalid on grounds of: 1) insufficient evidence, 2) double jeopardy, 3) the withholding of exculpatory evidence, 4) improper joinder of the offenses, 5) the failure to compel the presence of a witness at trial, 6) the denial of his right to a speedy trial, 7) variance of proof from the allegations contained in the indictment, 8) the allocation of the burden of proof as to an affirmative defense, 9) validity of the indictment, 10) failure to instruct on a lesser included offense, and 11) his competency to stand trial. A magistrate, however, determined that none of those arguments was of sufficient merit to warrant the granting of habeas relief. The district court, over Justice's objections, agreed and adopted the magistrate's report and recommendation in full. After the entry of an order dismissing the petition for a writ of habeas corpus, Justice filed this appeal.
1
After a careful review of the record, this court concludes that the district court did not err in dismissing the petition for habeas relief based upon the reasoning set out in the report and recommendation of the magistrate. Accordingly, the motion for bail pending appeal is denied and the district court's final order is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
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247 F.2d 315
The HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Appellant,v.STATE OF KANSAS ex rel. Harold R. FATZER, Attorney General, for the benefit of Ben MEITL, Guy C. Sawyer, Gerald F. Meitl, Albert Schroer, N. C. Johnson, Ladimar Skubal, V. L. Skubal, L. J. Skubal, Louise Schroer, Bernard Schifferdecke, Harold H. Derby, Rudolph Skubal, Marion Bremer, Don Ehler, Fred Bremer, C. H. Alstrom, Leo J. Rogers, John Meitl, F. J. Reichert, Anna Schroer, Cloyce Harold, Edna Montgomery, Larry Bremer, Mrs. Fred Bremer, Joan Betts, M. H. Bowman, Gene M. Fortin, Glenn A. Scheare, Commodity Credit Corporation, a public corporation, and all parties similarly situated, Appellees.
No. 5441.
United States Court of Appeals Tenth Circuit.
July 24, 1957.
Rehearing Denied August 24, 1957.
John Q. Royce, Salina, Kan. (E. S. Hampton, H. H. Dunham, Jr., H. G. Engleman, C. Stanley Nelson and Jack N. Stewart, Salina, Kan., were with him on the brief), for appellant.
Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan. (William C. Farmer, U. S. Atty., Topeka, Kan., Neil Brooks, Asst. Gen. Counsel, U. S. Dept. of Agriculture, Donald A. Campbell, Atty., U. S. Dept. of Agriculture, Washington, D. C., Giles H. Penstone, Atty. in Charge, U. S. Dept. of Agriculture, Kansas City, Mo., and Harold A. Houske, Kansas City, Mo., Atty., U. S. Dept. of Agriculture, were with him on the brief), for the United States, appellee.
L. F. Cushenbery, Sp. Asst. Atty. Gen. (John Anderson, Jr., Atty. Gen., Robert E. Hoffman, Asst. Atty. Gen., D. Arthur Walker, William E. Cunningham, Arkansas City, Kan., John M. Bremer, Oberlin, Kan., Kenneth Clark, Hill City, Kan., Ray C. Sloan, Alex M. Fromme, Joseph W. Fromme, Hoxie, Kan., were with him on the brief), for State of Kansas ex rel., appellees.
Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
1
This action was filed by the State of Kansas for the benefit of the persons named in the complaint against the Hartford Accident and Indemnity Company, herein called Hartford, in the District Court of Decatur County, Kansas, and was thereafter removed to the United States District Court for the District of Kansas. The action was brought to recover the value of grain delivered by the parties in interest to the public warehouse of George Olson, doing business as Schroer Grain Company of Dresden, Kansas, who had defaulted in his obligations to those who had delivered grain to him.
2
The case was referred to the Honorable E. R. Sloan as Master. He held extensive hearings, made detailed findings of fact and conclusions of law, and submitted his report to the trial court. Upon a consideration of the report, the trial court adopted the findings of fact and conclusions of law of the Master and entered judgments for the various claimants against Hartford. The correctness of the amounts found due is not an issue in this case. The only question is whether Hartford is liable on its bonds.
3
It was found that for some time prior to May 30, 1949, Olson controlled and operated three elevators on the right of way of the Rock Island and Pacific Railroad Company at Dresden, Kansas. They were operated as a unit and had a total capacity of 42,000 bushels. During the crop years of 1949, 1950 and 1951, Olson handled an average of more than 300,000 bushels of wheat each year through these elevators. On May 30, 1949, and for some time prior thereto, Olson was duly licensed under the laws of the State of Kansas to operate a public warehouse for grain at Dresden, Kansas, in these three elevators. On July 12, 1949, Olson was advised by letter by the Grain Inspection Department that his warehouse license had expired May 31. On August 9, 1949, he filed an application for a renewal license for storage of grain at Dresden, Kansas, for the year ending May 30, 1950. The application was accompanied by a public warehouseman's bond in the penal sum of $5,000 executed by Hartford. This bond contained this provision:
4
"The condition of the above obligation is such that, whereas, the above-bounden principal on the 31st day of May, 1949, made application for a license to operate the Grain Elevator as a public Warehouse at Dresden, Kansas, County of Decatur, State of Kansas, for the period ending May 31, 1950.
5
"Now, therefore, If the said Principal shall well and faithfully perform all his duties as such Public Warehouseman, then this obligation to be void and of no effect; otherwise to be and remain in full force and effect."
6
The bond was received by the State of Kansas on August 9, 1949, and on September 9, 1949, a warehouseman's license was issued to Olson for the period ending May 30, 1950. Although issued on September 9, 1949, it stated that the license was "effective this 31st day of May, 1949."
7
Olson was again derelict in making timely application for a license for the ensuing year and was reminded of his failure by letter from the Department dated July 12, 1950. He filed his application for his renewal license for the period ending May 30, 1951, on August 19, 1950. This application was likewise accompanied by a bond issued by Hartford in the sum of $5,000 and dated August 19, 1950, and contained the same recitation as set out in the preceding bond. On August 30, 1950, the Department issued Olson a public warehouse license which was identical to the form issued for the preceding year.
8
Olson was again derelict in filing timely application for a license for the next ensuing year and again on July 20, 1951, the Department advised him of such dereliction. Notwithstanding, he made no application for a renewal license until September 10, 1951. On that day he filed his application with the Department again accompanied by a warehouse bond executed by Hartford dated August 29, 1951, in the sum of $5,000. This bond was received by the State of Kansas on September 10, 1951, and on September 15, 1951, a local warehouse license was issued to Olson for that year. Notwithstanding that for each of these years the application for the renewal license was not timely filed and notwithstanding that the date on the bonds and the warehouse licenses were issued months after the beginning of the year in each instance, the license and the bond purported to cover the entire year ending May 30, 1950, May 30, 1951, and May 30, 1952. The Master found that it was the practice of the Grain Inspection Department to issue delayed warehouse licenses and date them back to the beginning of the licensing year.
9
On October 23, 1951, an examination was made of Olson's business and it was found that he was short 30,127 bushels and 50 pounds of wheat. The Commodity Credit Corporation had wheat in storage with Olson and was advised of the shortage in his accounts. On October 29, 1951, the officers of Commodity, Olson, the Chief Grain Inspector, and the Warehouse Examiner had a conference in Kansas City. Commodity and the Chief Grain Inspector knew Olson was short more than 30,000 bushels of wheat at his warehouse. They demanded that Olson furnish an additional warehouse bond in the penal sum of $50,000. Olson made an application to Hartford for the bond in which he represented that he was solvent but this representation was false. Upon receipt of the application, Hartford executed the $50,000 bond. Although the bond was dated November 13, 1951, it recited that
10
"The condition of the above obligation is such that, whereas, the above-bounden principal on the 29th day of August, 1951, made application for a license to operate the Schroer Grain Co. elevators as a public Warehouse at Dresden, Kansas, County of Decatur, State of Kansas, for the period ending May 31, 1952.
11
"Now, therefore, If the said Principal shall well and faithfully perform all his duties as such Public Warehouseman then this obligation to be void and of no effect; otherwise, to remain in full force and effect."
12
On August 17, 1946, Commodity Credit Corporation entered into a contract with Olson for the use of his warehouse facilities with respect to grain owned by it or in its possession which was deposited by a producer and which became security for a loan by Commodity. A supplemental contract of like tenor was in force and effect on the date Olson became a bankrupt. During each of the three years in question, Olson was indebted to Commodity on warehouse receipts and contracts for more wheat than he had on hand.
13
The producer claimants are raisers of wheat who brought their wheat to Olson and deposited the grain in the elevator in open storage. Reference will be made to the term "open storage" hereafter. At the end of each of the three years in question, Olson was indebted to some of the producers for more open storage grain than he had on hand in the elevator. The Master specifically found from the evidence that the inventory of grain on hand as evidenced by Olson's books was less than the outstanding obligations from May 31, 1949, to January 30, 1952, when Olson was adjudged a bankrupt. We do not understand that the findings as outlined above are seriously challenged by Hartford. Its complaint is with respect to the legal conclusions by the Master and of the trial court predicated on such findings.
14
While Hartford urges eight assignments of error for reversal, they present but three questions. They are as follows: (1) Only grain for which a statutory warehouse receipt has been issued constitutes stored grain within the purview of the Act, (2) Olson was not legally licensed as a public warehouseman between May 31, 1949, and September 8, 1949; between May 30, 1950 and August 29, 1950; and between May 31, 1951 and September 18, 1951; and that Hartford therefore is not liable on its bond for any wheat delivered for storage during such periods, and (3) that the $50,000 bond was procured by false and fraudulent representations and is therefore void.
15
The Master's conclusions, adopted by the trial court, are embodied in an able and exhaustive memorandum opinion by the Master. In substance, it was concluded (1) that both grain for which a statutory warehouse receipt had been issued as well as grain left in "open storage" constitute stored grain under the protection of the statutory bonds, (2) that notwithstanding Olson in each year did not apply for a renewal license until several months after the expiration of the license for the preceding business year, the license when issued nonetheless covered the entire year and that Hartford was liable on its bond for the defalcations during the entire year, and (3) that while Olson was guilty of fraud in the procurement of the $50,000 bond, such fraud was not attributable to the depositors of grain so as to relieve Hartford from liability to them.
16
For reasons hereinafter stated, we think these conclusions of law are correct and that there is no reversible error in the case. Assignments of error Nos. 1 and 2 pose questions of state statutory law. No case is cited and our search has failed to reveal one in which the precise questions have been before the State Supreme Court. In the absence of help in that Court's decisions, we can reason only by analogy in determining the state law.
17
We think the conclusion of the Master and the trial court that the Kansas Warehouse Act, Chapter 194 — 1931 Legislature (now 34-223. et seq., G.S. 1949) contemplates that the relationship of a warehouseman and depositors of grain may exist even though no statutory warehouse receipt was issued is correct. The statute defines the purposes of the Act as being (1) for the storage of grain in a licensed warehouse, and (2) the issuance of warehouse receipts. It provides that "Whenever any grain has been received in any public warehouse, * * * and same is not purchased by the * * * owner * * * of such warehouse, such grain shall be considered stored grain." Section 34-227, G.S.1949. The statute further provides that "said grain is to be insured * * * for the benefit of * * * the owners of warehouse receipts and storage receipts issued by any public warehouse * * *." "* * * a party shall not deprive the holder of a warehouse receipt or storage receipt or other interested person of his right of recovery under such policy of insurance." "* * * upon demand by the owner of the grain, or holder of any warehouse receipt, * * * for such grain, * * * make settlement for the value of the grain * * *" (Section 34-236). The following provision of Section 34-237 providing that "* * * grain shall be delivered upon return and cancellation of such receipts, and the unreceipted grain upon the request of the owner or holder of the receipt or receipts" is significant, as is also the provision of Section 34-250 "* * * to deliver the grain upon a demand made either by the holder of a receipt for the grain, or by the depositor * * *"
18
Under the Kansas Statute a licensed warehouseman of a grain elevator acts in a dual capacity. Where wheat is brought to his elevator he may purchase it if the producer wishes to sell, or is required to store it if that is the producer's desire. The statute provides that "Whenever any grain has been received in any public warehouse, * * * and the same is not purchased by the * * * owner * * * of such warehouse, such grain shall be considered stored grain." Section 34-227, G.S.1949. Olson did not purchase the wheat brought to the elevator by the interested parties in this litigation. With respect to the producers, he issued scale tickets to them, showing the amount of wheat which had been delivered without fixing a price for the wheat.
19
The Master and the trial court found that the practice had grown up in Kansas of issuing scale tickets for wheat that was brought to the elevator but was not sold to the elevator operator; that under such circumstances the depositor pays storage and that it is generally recognized that he may demand the return of his grain or grain of a like quality and quantity; that this practice was so general that it amounts to a customary usage in the trade binding on the parties. Such storage is what is commonly known as "open storage." Hartford's contention that only grain for which a statutory warehouse receipt has been issued constitutes stored grain within the purview of the Act is in our opinion not sustained by an analysis of all the provisions of the Act. An interpretation of the various sections of the Kansas Grain Warehousemen Statute leads us to conclude that all grain delivered to a licensed warehouseman which is not sold to him becomes stored grain, and that this results whether a statutory warehouse receipt is issued or whether the deposit of the grain is evidenced by such scale tickets as are involved in this case. We agree with the findings of the Master as adopted by the trial court that under these scale tickets the depositors of wheat did not sell their wheat and had a right to receive it back upon demand; that this wheat was held in storage subject to the orders of the holders of the scale tickets; and that with respect thereto Olson was at all times acting in his capacity as a warehouseman.
20
It is next contended by Hartford that in any event it is not liable on its bond during those periods of time when Olson was operating without his renewal license, notwithstanding that when the license was issued it was made to cover the entire year. The Master and the court concluded that when once the warehouseman comes under the jurisdiction of the Kansas State Grain Inspection Department by applying for and having issued to him a license such jurisdiction ends only when a notice as required by the Act is given that such operator desires to discontinue operating as a public warehouseman and until such notice is given, the surety is not relieved from liability on its bond. The court also concluded that where there was delay in the issuance of a renewal license the inspector could make the license effective as of the date of the expiration of the old license. The court further concluded that in any event the state alone could challenge any irregularity in the issuance of the renewal licenses. We are in accord with those holdings of the trial court.
21
Hartford cites Kipp v. Goffe & Carkener, 144 Kan. 95, 58 P.2d 102, 108 A.L.R. 918, and the late case of Shugar v. Antrim, 177 Kan. 70, 276 P.2d 372, in support of its contention that grain could not become stored grain during the periods Olson did not hold a license. These cases, however, are distinguishable upon the facts. In the Kipp case the elevator operator had never attempted to comply with the Act to bring himself within its provisions. At no time had he applied for a license and none had ever been issued to him. Under these facts the court held that he was not a public warehouseman and was not entitled to receive grain for storage and that all transactions for grain left with him constituted sales. In the Shugar case the warehouseman's license had expired. No application for renewal was ever filed. In fact, shortly after its expiration the operator discontinued business. Under these facts the court quite properly held that he was not under the provisions of the Act and that grain left at the elevator after the expiration of the license was not stored grain.
22
As pointed out, the Master and the court found that in each of the years in question Olson received more grain than he had storage capacity and that the depositors must have known of this condition and that there would be a continuous change in the inventory of the grain in store. From this Hartford argues that the depositors knew that sufficient grain would not be kept on hand in the elevator to satisfy the alleged storage obligation and that, therefore, the transactions did not constitute storage contracts. With this reasoning we cannot agree. The court likened the operation of a warehouse business to the operation of a bank, holding that while the statute contemplates that the warehouseman must have on hand at all times sufficient wheat to fulfill the deposit, in practice this did not follow. The obligation of a warehouseman, as that of a banker, is to deliver the deposited grain upon demand. There is no showing that Olson did not have on hand sufficient wheat to meet all demands made on him with respect to deposited grain prior to November 6, 1951. While Olson received more stored grain than he had storage capacity, no cause of action would accrue thereby in favor of a depositor of grain. He would have a claim against him and his surety only when a demand for the return of the deposited grain was dishonored.1 The mere fact that Olson received for storage more grain than he had storage capacity did not result in a conversion of any particular grain or prevent any grain offered for storage from becoming stored grain. There can be no conversion of any given depositor's grain until a demand for its delivery has been dishonored. Ordinarily, the making of a proper demand is a condition precedent to the obligation of a warehouseman to deliver the stored grain,2 so even if there was a misappropriation of stored grain by Olson, it would not result in a cause of action on behalf of a depositor until a demand had been made or the necessity therefor had ceased. The necessity for a demand of course ceased when the receiver was appointed.
23
There is yet another reason why we think Hartford may not escape liability on its bonds. As pointed out, when the renewal licenses were issued they were made to cover the entire year, although issued a number of months after the beginning of the year. Hartford knew this and in each instance was willing to assume the obligation of a surety from the end of the preceding year and make its bond guarantee performance under the license. Under these facts, Hartford will not be heard to say that its liability was limited to a time less than that covered by the license. It is estopped to make such a contention.3
24
Neither is Hartford's contention that there is no liability on the $50,000 bond well taken. One contention is that this bond was obtained by false and fraudulent representations. The court found that Olson falsely represented that he was solvent but neither the Grain Department nor the depositors of grain participated in or even knew of these false representations. The court found that in issuing this bond Hartford relied entirely upon Olson's representations, its previous experience with him, upon its agents at Dresden, Kansas, who took the application, and upon a Dun and Bradstreet report. Under similar circumstances, Kansas has held that a surety will not be relieved of its obligations on the bond to the beneficiaries thereof.4 In the Star case the court said, "From the foregoing survey of the decided cases, it seems necessary to hold that some sort of active fault must attach to the obligee of a fidelity bond before the surety will be released from his obligation."
25
The contention is not well taken that Commodity's or Kansas' failure to inform Hartford of Olson's precarious standing when additional security was required, constituted conduct sufficient to relieve Hartford of liability on its bond. The Kansas Statute made it the duty of the Chief Inspector to acquire additional security when in his opinion the existing security might be inadequate.5 A similar contention was rejected by the Kansas Court in the Star case (see footnote 4). As stated by the court in that case, neither Commodity nor the State Grain Inspector "did nothing reprehensible to induce [Hartford] to become surety" on the bond. To release a surety from liability on its bond, some sort of active fault must attach to the obligee of the fidelity bond. See Star case, supra.
26
So also must fail the contention that the $50,000 bond was prospective and did not cover losses which had already occurred. The obligation of the bond was "Now, therefore, If the said principal shall well and faithfully perform all of his duties as such Public Warehouseman, then this obligation to be void and of no effect; otherwise to be and remain in full force and effect." The obligation of the warehouseman covered by the bond was "to deliver the grain upon a demand made either by the holder of a receipt for the grain, or by the depositor * * *"6 This was a prospective obligation and arose in this case after the execution of the bond. Olson breached this obligation by failing to deliver the wheat upon demand, and since the appointment of a receiver obviated the necessity of a demand, the obligation was breached when the receiver was appointed.
27
Affirmed.
Notes:
1
State on Behalf and for Benefit of Reilly v. Farmers' Co-operative Elevator Co., 39 N.D. 235, 167 N.W. 223, L.R.A.1918E, 233
2
56 Am.Jur. § 191, p. 409
3
William H. Banks Warehouses v. Jean, D.C., 96 F.Supp. 731
4
Star Ins. Co. of America v. Carey, 126 Kan. 205, 267 P. 990, 994, 60 A.L.R. 153; Great American Ins. Co. v. O'Neal, 138 Kan. 617, 27 P.2d 201
5
Sec. 34-229, G.S.Kan.1949
6
Sec. 34-250, G.S.Kan.1949
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469 A.2d 1248 (1983)
Garfield WELLS, Appellant,
v.
UNITED STATES, Appellee.
No. 82-1671.
District of Columbia Court of Appeals.
Submitted November 9, 1983.
Decided December 19, 1983.
*1249 Alan B. Soschin, Washington, D.C., appointed by this court, for appellant.
Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Daniel S. Seikaly, Asst. U.S. Atty., Washington, D.C., were on brief, for appellee.
Before FERREN and PRYOR, Associate Judges, and REILLY, Chief Judge, Retired.
PER CURIAM:
This is an appeal from an order of the Superior Court correcting a sentence imposed. We affirm the trial court's order.
In 1978, appellant was convicted of three counts of felony murder, D.C.Code § 22-2401 (1981), two counts of assault with intent to kill, id., § 22-501 (1981), and one count of arson, id., § 22-401 (1981). The trial court sentenced appellant to consecutive terms of twenty years to life imprisonment for each felony murder count and three to ten years' imprisonment for each remaining count.
This is the third occasion that this case has come before us. In considering the original appeal, this court noted that the convictions were based on evidence that appellant retaliated against a woman with whom he had quarreled by splashing gasoline and igniting it near the door of her apartment. The intended victim escaped, but other tenants died in the ensuing conflagration. The case was remanded to the trial court to conduct hearings on two procedural issues unrelated to this proceeding. Wells v. United States, 407 A.2d 1081 (D.C. 1979). After reviewing the findings of the trial court, challenged on a second appeal, this court affirmed the convictions in a memorandum opinion, Wells v. United States, No. 80-1202 (D.C. March 25, 1982).
A few months later, appellant filed a "Motion to Vacate the Previously Imposed Sentences, Set Aside the Arson Conviction and Resentencing and Other Relief" pursuant to Superior Court Criminal Rule 35 on the ground that he should not have been sentenced for arson, the underlying crime on which the felony murder conviction was predicated, because this offense had been merged as an element of the homicide for which he was convicted. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The trial court conducted an oral hearing at which appellant's counsel, but not appellant himself, was present. This resulted in a corrective order vacating the sentence for arson, but reimposing the original sentences on the other counts. Thus, appellant's term of imprisonment was reduced from a total of 69 to a total of 66 years.
Appellant now contends that he was improperly denied his right to address the judge personally at this post-conviction proceeding to correct sentence. He urges this court to vacate the December 7 sentence and remand the case for resentencing before a different judge.
The law is clear that a defendant must be present in person at the time sentence is originally imposed and that he must be afforded the right of allocution. Super. Ct.Crim.R. 32(c);[1]Butler v. United States, 388 A.2d 883, 885 (D.C.1978). Appellant *1250 asserts that the December 7 hearing was a resentencing or a de novo sentencing proceeding, thus triggering the procedural requirements of Rule 32. But, as appellant must have recognized by the caption he put on his motion, he was seeking relief under an entirely different rule the one which governs motions for a correction of an illegal sentence, viz. Super.Ct.Crim.R. 35.[2]
Rule 35(a) is limited by its terms to the correction or reduction of sentence and no opportunity for allocution is required in this situation. Super.Ct.Crim.R. 43.[3] The counterpart of this rule, Fed.R.Crim.P. 43, has been so construed in three different circuits. United States v. Connolly, 618 F.2d 553 (9th Cir.1980); United States v. McClintic, 606 F.2d 827 (8th Cir.1979); United States v. McCray, 468 F.2d 446 (10th Cir.1972).
In our opinion, these decisions reflect the intent of the applicable rules. Accordingly, the court in correcting the original sentence was under no duty to ask appellant personally if he cared to make a statement in his own behalf.
Affirmed.
NOTES
[1] Super.Ct.Crim.R. 32(c)(1) provides:
(1) Allocution. Before pronouncing sentence the Court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and present any information in mitigation of punishment. The prosecutor shall have an equivalent opportunity to speak to the Court.
[2] Subsection (a) of Rule 35 provides:
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.
[3] Super.Ct.Crim.R. 43(c) provides:
Presence not required. A defendant need not be present in the following situations:
(1) A corporation may appear by counsel for all purposes.
(2) In prosecutions for offenses punishable by a fine or by imprisonment for not more than 1 year or both, the Court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence.
(3) At a conference or argument upon a question of law.
(4) At a reduction of sentence under Rule 35. (Amended, Nov. 16, 1976) (emphasis added.)
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177 Kan. 109 (1954)
276 P.2d 329
CLYDE B. JONES and JUANITA JONES, Appellants,
v.
GILBERT L. COATE and MINA M. COATE, his wife, Appellees, GEORGE T. NORRIS and JOYCE NORRIS, his wife, Defendants.
No. 39,489
Supreme Court of Kansas.
Opinion filed November 13, 1954.
Stanley E. Wisdom, of Wichita, argued the cause, and W.C. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, Robert G. Braden, S.C. Durbin, J. Francis Hesse and James W. Sargent, all of Wichita, were with him on the briefs for the appellants.
Gerrit H. Wormhoudt, of Wichita, argued the cause, and J.B. McKay and J.B. McKay, Jr., both of El Dorado, and Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill and Theodore C. Geisert, all of Wichita, were with him on the briefs for the appellees.
The opinion of the court was delivered by
PRICE, J.:
This is an appeal by plaintiffs from an order quashing the service of summons had on two nonresident defendants in an action for breach of contract.
Plaintiffs are residents of Butler County.
Defendants Norris are residents of Butler County.
Defendants Coate are residents of Comanche County.
The action was filed in Butler County, and service of summons was had on defendants Norris in that county. No complaint is made concerning that service of process, and defendants Norris are not parties to this appeal.
*110 Service of the Butler County summons was had on defendants Coate in Comanche County by the sheriff of the latter county.
At this point it should be stated that plaintiffs' action was predicated on the theory that defendants Norris and Coate were partners, and that they breached a contract for the purchase of plaintiffs' automobile agency in El Dorado.
Defendants Coate, in a purported special appearance, filed a motion to quash the service of summons had upon them in Comanche County on the grounds (1) that the action is one which must be brought in the county in which some one of the defendants reside; (2) on the date summons was served upon them in Comanche County, and for many years prior thereto, they were, and still are, residents of that county; (3) in an effort to confer jurisdiction of the court over them plaintiffs joined as defendants the defendants Norris, residents of Butler County, alleging that defendant George T. Norris is a partner of defendant Gilbert L. Coate; (4) that no cause of action is pleaded against defendant Joyce Norris, that she was not joined as a defendant in good faith, that her joinder as a defendant was done in bad faith in an attempt to confer jurisdiction over movants, and that the venue of the action against them is properly in Comanche County where they reside; (5) that defendant George T. Norris was not at any time a partner of movants, or either of them, in relation to the matters alleged in the petition, or in any other venture, that such allegations of partnership were known by plaintiffs to be false and were made in bad faith in an attempt to confer jurisdiction of the court over the persons of movants, and (6) that by reason of the foregoing the court had no jurisdiction over movants.
This motion was sustained and plaintiffs have appealed.
It is conceded by defendants Coate that the action was properly brought in Butler County against defendants Norris, that being the county of the latters' residence, but it is contended, as alleged in their motion, that they, defendants Coate, were improperly joined as defendants and therefore service of summons upon them in Comanche County was invalid.
Plaintiffs, on the other hand, contend their petition alleges joint liability of all defendants on the theory of a partnership obligation and therefore defendants Coate were properly joined, and that service on them in Comanche County was valid.
Under G.S. 1949, 60-509, which provides:
*111 "Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned."
defendants Norris were properly sued and served with process in Butler County, that being the county of their residence.
G.S. 1949, 60-2502, provides:
"Where the action is rightly brought in any county, according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants, on the plaintiff's praecipe."
There are many decisions of this court which follow substantially the literal wording of the latter statute. See Bank v. Bank, 106 Kan. 303, 306, 187 Pac. 697; Van Buren v. Pratt, 123 Kan. 581, 256 Pac. 1006; and Traders State Bank v. Wooster, 159 Kan. 337, 344, 345, 154 P.2d 1017.
It of course is elementary that in an action such as this parties jointly liable to a plaintiff may be joined as defendants.
The only question, therefore, in this case, is whether the petition alleges joint liability of all defendants. If it does, issuance of summons out of Butler County to and service thereof upon defendants Coate in Comanche County was proper otherwise not.
In support of their respective contentions the parties dwell at length on the substantive law of joint and several liability as applied to partnerships. These contentions may well be very applicable upon the trial of the case but here we are not concerned with what the proof may show, and limit ourselves solely to the question whether the petition alleges joint liability of defendants so as to bring the matter within the purview of G.S. 1949, 60-2502, supra, insofar as service of process is concerned.
The petition and exhibits attached thereto cover some sixteen pages of the abstract. For our purposes it is unnecessary to summarize the allegations and contents in detail.
Briefly stated, the petition alleges that on or about the 20th of March, 1953, plaintiff Clyde B. Jones entered into a contract with defendants Gilbert L. Coate and George T. Norris, copartners, for the sale to such partners of his automobile agency in consideration of the sum of $135,000 and the conveyance to plaintiff and his wife of a section of land in Colorado, such consideration to be paid in the following manner: The sum of $20,000 was to be paid in cash immediately upon execution of a written contract. Defendant Gilbert L. Coate was to convey to plaintiffs the Colorado real estate. Defendant George T. Norris was to execute a promissory note to *112 plaintiff in the sum of $35,000, the same to be paid upon the sale of certain trucks owned by Norris. The balance of $80,000 was to be paid in eight equal annual installments, such balance to be evidenced by a series of promissory notes signed by defendants Coate and to be secured by a real estate mortgage covering the property sold by plaintiffs to the partners.
Performance on the part of plaintiff and repudiation and breach by defendant Coate are then alleged, and attached to the petition are copies of the contract, notes and mortgage executed pursuant to the agreement.
Throughout the petition the defendants are referred to as partners in all of the negotiations and transactions involved. We quote two excerpts therefrom:
"... The said agreement was, in substance, that plaintiff would sell all of the assets of the said business, both real and personal, tangible and intangible, to the said partners, and that the said partners would purchase the same, ..."
"8. In the execution of the foregoing contract and all the said notes and the said mortgage by either the defendant Gilbert L. Coate or the defendant George T. Norris, the said instruments were executed for and on behalf of both of the said defendants as copartners in the said business; and in all things material hereto, each of the said defendants was acting for and on behalf of the two of them and within the scope of the authority conferred upon either of them by the said partnership agreement."
Defendants Coate argue the most that can be said for the petition is that from its allegations defendant Gilbert L. Coate was to make certain specified payments and do certain things; that defendant George T. Norris was to make certain payments; that neither is interested in plaintiffs' cause of action against the other, and that the causes of action are improperly joined, citing Pleifke v. Cline, 149 Kan. 9, 85 P.2d 996, which quotes with approval the rule stated in Marshall v. Land Co., 75 Kan. 445, 89 Pac. 905, in which it was said:
"To justify the issuance of a summons to a forein county and the service of the same upon a defendant residing or found there the action must be rightly brought and the persons sued must be rightly joined as defendants." (Syl. 3.)
We agree with the rule there announced, and, as applied to the case at hand, are of the opinion the allegations of the petition are sufficient to warrant the issuance of summons to and service thereof upon defendants Coate in Comanche County.
The order of the lower court quashing service of summons is therefore reversed.
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523 F.Supp. 518 (1981)
Randall Mark MARLER
v.
INTERNATIONAL GRAIN CORPORATION, Ray Stewart d/b/a S&S Sheet Metal Company, and Houston General Insurance Company.
Civ. A. No. 78-459-A.
United States District Court, M. D. Louisiana.
October 8, 1981.
William P. Rutledge, Lafayette, La., for plaintiff.
Lemeuel E. Hawsey, III, Baton Rouge, La., for defendants.
JOHN V. PARKER, Chief Judge.
This is an action for personal injuries brought against the owner of a barge by an employee of an independent contractor who was injured aboard the vessel which was moored in the Mississippi River at Baton Rouge, Louisiana. The Court holds that there is no liability.
The cause of action is laid under § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act as amended in 1972, 33 U.S.C. § 905(b), and this Court has jurisdiction pursuant to 28 U.S.C. § 1331(a). The action was tried to the Court sitting without a jury, Bynum v. Patterson Truck Lines, Inc., 655 F.2d 643 (5th Cir. 1981), and this opinion shall constitute the findings of fact and conclusions of law required by Rule 52, Fed.R.Civ.P.
FACTS
Defendant, International Grain Transfer, Inc., is a Louisiana corporation owned entirely by two individuals, Richard L. Comstock and Odis F. Haymon. In November, 1977, International acquired a flat top tank barge, re-named it Commit, II, removed it to a ship yard where it was cleaned, sandblasted, and painted and a pedestal for a crane was installed. In January and February, 1978, a crane was mounted on the deck of the barge and it was towed to an anchorage on the bank of the Mississippi River at Baton Rouge. International retained a marine architect who prepared plans and specifications for conversion of the barge into a floating grain elevator to be used in loading grain aboard vessels in the Port of Baton Rouge. The owner contracted with a contractor to complete the work according to plans and specifications but that contract was soon terminated.
In March, 1978, International contracted with Ray Stewart d/b/a S & S Sheet Metal Company, a resident of Baton Rouge to complete all remaining work according to plans and specifications. The conversion work included erection of a steel superstructure the height of which was 80 to 108 feet above the deck of the barge.
*519 Plaintiff, Randall Mark Marler was a shore based ironworker employed by the contractor, Stewart, to work aboard the barge. At the time of the accident, the vessel had no crew. During the construction work, the deck mounted crane was utilized by the contractor to raise materials and sometimes to raise and lower workmen and tools. This was accomplished by means of a "cage" suspended by a cable attached to the crane.
The accident and resulting injuries to the plaintiff occurred on June 23, 1978, when he fell from a height of about 40 feet while attempting to climb down the I-beams of the superstructure to the deck of the barge. The evidence establishes that the owners of International, Haymon and Comstock, visited the barge daily during the construction period for the purpose of monitoring the progress of the work. Although some of the ironworkers testified that they thought Haymon and Comstock were supervising construction, the Court finds as a fact that International's representatives were simply observing, not directing the work or the workers. Indeed, plaintiff concedes in brief that this is not a case of "retained control" of job performance by the vessel owner. See, Walker v. Blacksea S.S. Co., 637 F.2d 287 (5th Cir. 1981).
On either the day of the accident or the day before, the "boom stops" on the crane were bent when the contractor extended the boom too far. Haymon was apprised of this development and directed that the "stops" be removed for repair or replacement. No repairs were accomplished prior to the accident.
During construction, the ironworkers reached their places of work upon the superstructure by means of the "cage" attached to the crane, by using ladders which the contractor was responsible for installing upon the superstructure or by climbing the I-beams of the superstructure itself. The evidence indicates that the contractor, Stewart, furnished two safety belts for use of workers upon the superstructure but that no safety belts suitable for climbing were furnished to the workers by the contractor.
On the day of the accident, the superstructure had already been "topped out" to its maximum height but all work was not yet completed. Ladders had been permanently installed to a height of about 40 feet and the contractor was in the process of installing ladders at higher elevations.
Haymon was at the barge on the afternoon of the accident but was not present at the time of the accident. The accident occurred at or immediately after the usual quitting time for the workers.
The workers were prepared to leave the job when they were ordered back aloft by Stewart. They declined to utilize the crane because they felt that it was unsafe, because of the damage to the "stops", although the crane was used to transport tools up to them. Plaintiff and another worker were instructed to complete installation of a ladder at the area of the catwalk which was near the highest elevation of the superstructure. They did not permanently attach the ladder but simply secured it with a "tack weld" and a rope. Both ascended to the work site by climbing the I-beams of the superstructure and plaintiff was descending in the same fashion when he fell to the deck of the barge. Plaintiff does not know what caused him to fall nor did anyone else who testified.
The contractor's foreman testified that as men were about to secure the job site and go home, Ray Stewart came to him and informed him that additional work had to be done before the men left the job but he testified that he objected, pointing out that the crane was not safe and that the men were tired but that Stewart informed him that if the men wanted their jobs, they had to go back up and finish the work which he outlined.
Plaintiff implies that these instructions from the contractor, Stewart, came from Haymon; the Court however finds that there is no evidence to support this conclusion. Haymon was not present at the time instructions were given and neither Haymon nor Comstock were present at the time of the accident.
*520 Plaintiff suffered severe injuries in the fall but, since the issue of liability is resolved against the plaintiff, the injuries will not be detailed here.
LAW
Under 33 U.S.C. § 905(b), the owner of a vessel is liable to any maritime worker who is injured because of the negligence of the owner. The 1972 Amendment to § 905(b) specifically prohibits imposition of liability under the warranty of seaworthiness. Thus, in order to recover, the injured worker must establish the actual negligence of the vessel owner.
Plaintiff, an ironworker employed in converting the barge from one maritime use to another, while the vessel was at anchorage in the Mississippi River, was clearly a person engaged in maritime employment under § 902(3) and thus is a person entitled to bring an action against the owner under § 905(b).
In determining the issue of vessel owner negligence, it is important to clearly delineate the duties and responsibilities of the various parties.
Section 941 makes it the specific duty of the employer to provide a "reasonably safe" place for his employees to work. Here that duty was upon the contractor, Stewart, not the owner. International had no duty to provide safety equipment for use by employees of the independent contractor. Thus, Stewart's failure to provide climbing safety belts cannot be imputed to the vessel owner.
The contract between Stewart and International called for completion of the structure by the contractor and International made no attempt to determine methods of construction. In fact, the evidence established that neither Comstock nor Haymon knew anything about ironwork and neither made any attempt to instruct Stewart's employees in job performance.
Plaintiff's theory is that because Comstock and Haymon were both frequently at the job site, International knew that the crane had been damaged and thus was not a safe means for transportation of the workers and that in the face of this hazard Haymon ordered Stewart to send the men back up to complete the work. As noted previously, the Court finds no factual basis for the conclusion that Haymon entered any such order. On the contrary, the Court finds that the owner of the vessel simply made regular exhortations to Stewart to hurry up and complete the work.
Plaintiff argues that International's negligence was in its failure to have the ladders properly installed before the crane was damaged, insisting that if the ladders had been installed there would have been a safe method of ascent and descent and the plaintiff thus would not have been injured.
This argument overlooks the fact that it was the duty of the contractor, Stewart, not the owner, to install the ladders. The ladders were an integral part of the conversion work contracted to Stewart and the owner ordinarily has no duty to protect employees of an independent contractor from risks inherent in the performance of the contract. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed. 161 (1955); Hess v. Upper-Mississippi Towing Corp., 559 F.2d 1030 (5th Cir. 1977) cert. den. 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 (1978).
The most recent consideration of vessel owner negligence by the Supreme Court is the case of Scindia Steam Navigation Co., Ltd. v. De Los Santos, et al., ___ U.S. ___, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981).
There, the Supreme Court held that a shipowner has a duty of reasonable care to employees of stevedores or other maritime employers. That duty of reasonable care does not include a continuing duty to inspect the gear or cargo operations once the independent contractor begins work and the vessel cannot be charged with the negligence of the contractor or his employees. Injured maritime employees are to be placed in the same position that they would have been if they had been injured in non-maritime employment ashore and no special maritime theory of liability, such as the doctrine of unseaworthiness, is to be employed. The defense of assumption of the *521 risk is not available nor is the doctrine of contributory negligence, although the comparative negligence of the plaintiff may be taken into consideration.
The Supreme Court pointed out in Scindia, supra, that the shipowner's duty of due care extends, at least, to have the ship and its equipment in such condition that an expert and experienced contractor would be able by the exercise of reasonable care to carry out the necessary operations with reasonable safety and to warning the contractor of any hazards on the ship with respect to its equipment that are known to the vessel or should be known in the exercise of reasonable care and that are not known by the contractor and would not be obvious to him. The Supreme Court declined to adopt the view that a shipowner's mere knowledge of danger is sufficient in and of itself to impose a duty to correct the situation and held that if the shipowner should anticipate that an independent contractor will not or cannot correct the danger and that the employees cannot avoid it, then the shipowner's duty is triggered to take reasonable steps to eliminate or neutralize the hazards. The Court concluded that there may be circumstances in which the shipowner has a duty to act where the danger to the employees of the independent contractor arises from the malfunctioning of the ship's gear being used by the contractor.
Here the damage to the vessel's crane was caused by the contractor himself and thus he clearly had knowledge of the defect and there is no evidence to support a conclusion that International should be charged with responsibility for Stewart's handling of his employees. The vessel owner is answerable only for its own negligence and it has no automatic responsibility for conditions caused by the negligence or other defaults of the independent contractor. Since the defense of assumption of the risks is not available to the shipowner, International cannot defend on the grounds that the plaintiff should have refused to continue working in the face of obviously dangerous conditions, Scindia, supra, but there is simply no evidence here to support a conclusion that this vessel owner violated any duty owed by it to employees of the independent contractor.
Ironworking is at best hazardous under any conditions. The hazard to these ironworkers did not arise from a malfunction of the ship's gear. The evidence indicates that the crane was still operational although with "stops" removed it would certainly require careful handling; moreover, there is no evidence to support the conclusion that International directed that the employees return aloft or even that International was aware that Stewart had delivered such instructions. Neither is there any evidence to support the conclusion that International had any specific knowledge concerning any additional risks imposed upon the ironworkers because of the damage to the "stops" on the crane. As noted earlier, the duty to furnish safety equipment for climbing purposes, both safety belts and installation of the ladders was upon the contractor, not upon the owner and the owner was entitled to assume that the contractor would take the necessary steps and provide the necessary equipment to insure a "reasonably safe place" for his employees to work.
Plaintiff has failed to prove any negligence upon the bargeowner and, accordingly, there will be judgment in favor of the defendant and against the plaintiff.
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
SJC-11664
COMMONWEALTH vs. RAZAK O. OYEWOLE.
December 18, 2014.
Motor Vehicle, Operation, Operating under the influence, License
to operate. License. Notice.
The defendant appeals from his conviction, after a jury-
waived trial, of operating a motor vehicle after his license had
been suspended for operating while under the influence of
alcohol. G. L. c. 90, § 23, third par. In a divided published
opinion, the Appeals Court affirmed the conviction.
Commonwealth v. Oyewole, 84 Mass. App. Ct. 669 (2014). We
granted further appellate review, limited to the sufficiency of
the evidence that Oyewole was notified of the license
suspension. 467 Mass. 1108 (2014). Because we conclude that
the evidence at trial was insufficient to prove this element
beyond a reasonable doubt, we reverse and direct the entry of
judgment for the defendant.
Viewing the record in the light most favorable to the
Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), we briefly state the facts, which are more fully set
forth in the Appeals Court's opinion. Oyewole, supra at 670-
671. In October, 2009, the defendant admitted to sufficient
facts to support a finding of guilty on a charge of operating
while under the influence of liquor (OUI case). According to
the docket sheet from that case, his license was suspended for
sixty days. Less than sixty days later, a Wilmington police
officer, observing that a motor vehicle had its headlights off
at 12:30 A.M., stopped the vehicle. The defendant was the
driver and only occupant of the vehicle. The officer requested
the defendant's license, which the defendant produced. The
2
officer confiscated the license and placed the defendant under
arrest.
As the Appeals Court stated, the Commonwealth was obligated
to prove, beyond a reasonable doubt, "(1) that the defendant
operated a motor vehicle; (2) that at the time of that operation
the defendant's license was revoked or suspended; (3) that the
license suspension or revocation was pursuant to a violation of
one of the specified statutory sections (including [OUI] in
violation of G. L. c. 90, § 24[1][a]); and (4) that the
defendant was notified that his license had been suspended or
revoked." Oyewole, supra at 672, quoting Commonwealth v.
Deramo, 436 Mass. 40, 50 (2002). The evidence at this brief1
trial was sufficient to establish the first three elements, as
it showed that the defendant operated a motor vehicle while his
license was suspended for operating while under the influence.
As to the fourth element, however, the evidence presented at
trial, together with all reasonable and possible inferences that
might properly be drawn from it, was insufficient to permit a
reasonable fact finder to find, beyond a reasonable doubt, that
the defendant was notified of the license suspension.2 While the
docket sheet from the OUI case, which was in evidence, permits
an inference that the defendant was present when his license was
suspended, the Commonwealth did not offer any evidence
demonstrating that the suspension was communicated to him. The
docket sheet itself does not state that the defendant was
1
The transcript reflects that the presentation of evidence,
together with motions in limine and the defendant's motion for a
required finding of not guilty, took less than one hour. The
Commonwealth called two witnesses and offered two exhibits,
namely, certain records from the registry of motor vehicles,
which were offered solely to corroborate the defendant's
biographical information, and the docket sheet from the case
involving the prior charge of operating while under the
influence of liquor. The defendant presented no evidence.
2
While an inference drawn from circumstantial evidence
"need only be reasonable and possible and need not be necessary
or inescapable," e.g., Commonwealth v. Casale, 381 Mass. 167,
173 (1980), our task is to determine whether "the evidence
presented at trial, together with all reasonable and possible
inferences that might properly be drawn from it, was sufficient
to permit a rational [fact finder] to find beyond a reasonable
doubt the existence of every essential element of the crimes
charged." Commonwealth v. Arroyo, 442 Mass. 135, 139-140
(2004).
3
notified of the suspension. The Commonwealth did not present
evidence that the judge in the OUI case announced the suspension
in open court.3 There is no evidence in the record that the
docket sheet was shown to the defendant or that any other
written notification was sent to him. Even on the assumption
that to do so was the regular practice when accepting a plea --
a proposition unsupported by the record -- the Commonwealth may
not rely on a presumption of regularity as a substitute for
evidence proving an element of its case beyond a reasonable
doubt. Cf. Commonwealth v. Giordano, 8 Mass. App. Ct. 590, 592
n.2 (1979), cert. denied, 446 U.S. 968 (1980), and cases cited
(in prosecution for escape, Commonwealth may not rely on
presumption of regularity to avoid proving lawfulness of
defendant's imprisonment). There was also no evidence that the
defendant acknowledged, at the time of the stop or at any other
time, that he was aware of the suspension.
Moreover, the evidence showed that when he was stopped, the
defendant had his license in his possession and gave it to the
police officer.4 When a license is suspended in connection with
a conviction for operating while under the influence, G. L.
c. 90, § 24D, fourth par., requires that the license be
surrendered to the probation department. Here, however, the
defendant apparently did not surrender his license. A possible
reason for this is that nobody notified the defendant that his
license was suspended.
In sum, the record contains no evidence demonstrating that
the defendant was notified of the license suspension, and some
evidence suggesting the contrary. The Commonwealth did not
carry its burden of proving every element of the offense beyond
a reasonable doubt.
Judgment reversed.
Finding set aside.
Judgment for the defendant.
3
A transcript of the plea hearing might easily have
established this. However, no transcript was offered in
evidence at trial.
4
Nothing in the record suggests that this license was a
counterfeit, a duplicate, or anything else other than the
genuine license that had been suspended.
4
Stacy J. Silveira (George Ohlson, Jr., with her) for the
defendant.
KerryAnne Kilcoyne, Assistant District Attorney, for the
Commonwealth.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00643-CV
Alpine Industries, Inc., Appellant
v.
Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas; and Greg
Abbott, Attorney General of the State of Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 98-12998, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
In this tax protest suit, Alpine Industries, Inc. ("Alpine") appeals from the district
court's grant of summary judgment in favor of Carole Keeton Strayhorn, Comptroller of Public
Accounts, and Greg Abbott, Attorney General of the State of Texas (collectively, "Comptroller").
The Comptroller determined that Alpine, which manufacturers air-purification equipment sold in
Texas and elsewhere by Alpine's network of independent dealers, is a direct sales organization. As
a result, Alpine, and not its dealers, is responsible for collecting and paying Texas sales taxes. See
Tex. Tax Code Ann. § 151.024 (West 2002); Former 34 Tex. Admin. Code § 3.286. (1) Alpine argues
that the district court's grant of summary judgment in favor of the Comptroller is in error because
(1) the Comptroller failed to prove as a matter of law that Alpine is a direct sales organization; (2)
the Comptroller failed to comply with the tax code by failing to make an individualized
determination that Alpine is a direct sales organization and that treatment of Alpine as a retailer for
tax purposes is necessary for the efficient administration of chapter 151 of the tax code; (2) (3) the tax
violates the commerce clause of the United States Constitution; (4) the tax violates the due process
clause of the United States Constitution; (5) the tax violates the equal protection clauses of the
United States Constitution and the Texas Constitution; and (6) the Comptroller failed to prove as a
matter of law that it was entitled to summary judgment on its counterclaim. We will affirm the
district court's summary judgment.
BACKGROUND AND PROCEDURE
Alpine is a Tennessee-based company that manufactures air-purification equipment.
Its equipment is sold in Texas and throughout the United States by a network of independent
salespersons. In order to become a salesperson for Alpine, one is required to pay Alpine a fee on a
yearly basis. In exchange for the fee, Alpine sends to each salesperson promotional materials
including a videotape and a copy of a manual entitled "Your Alpine Success and Evaluation
Manual."
Alpine describes itself as a multilevel marketing company, with different levels of
salespersons. Each salesperson is encouraged to recruit others to join Alpine's network. A
salesperson's recruits are known as "legs" and form a "downline." Alpine provides incentives such
as automobiles and world travel if a salesperson's recruits are successful and pays bonuses to its
salespersons based upon the dollar volume of products ordered. Alpine's accounting records indicate
that up to 20,000 persons with Texas addresses registered with Alpine to sell Alpine's products
between 1994 and 1998. (3)
The Texas Tax Code allows the Comptroller to treat a dealer, distributor, supervisor,
or employer as a retailer for tax purposes if "it is necessary for the efficient administration of this
chapter [regarding limited sales, excise, and use taxes]." (4) Tex. Tax Code Ann. § 151.024 (West
2002). At the time of this dispute, the Texas Administrative Code provided that a retailer is engaged
in business in Texas if the retailer is "utilizing independent salespersons in direct sales of taxable
items." Former 34 Tex. Admin. Code § 3.286(a)(1)(D). The same rule provided: "A direct sales
organization engaged in business as defined in paragraph (1)(D) of this subsection is a seller and is
responsible for the collection and remittance of the sales tax collected by the independent
salespersons selling the organization's product." Id. § 3.286(a)(3). Finally, the rule provided:
"Independent salespersons of direct sales organizations will not be required to hold sales tax permits.
It is the responsibility of the direct sales organization to hold Texas permits and to collect Texas
tax." Id. § 3.286(b)(3).
On June 20, 1996, the Comptroller wrote Alpine and stated: "It has come to our
attention that your company is a multi-level marketing company/direct sales company. . . . [Y]our
company is required to collect and remit Texas sales and use taxes for its independent distributors."
On July 3, 1996, Alpine responded to the Comptroller's letter and stated that "we are not a typical
multi-level organization" and that "we feel that Rule 3.286(a)(3) does not apply to our business
practice." The Comptroller and Alpine then engaged in a series of correspondence regarding
whether Alpine was responsible for the collection and payment of Texas sales and use taxes. After
Alpine refused to comply with a Comptroller request to complete a business tax questionnaire, the
Comptroller estimated the amount of tax Alpine owed and issued several notices of tax due.
Alpine paid $33,004.14 under protest and filed suit on November 20, 1998. See Tex.
Tax Code Ann. §§ 112.051-.052 (West 2001). The Comptroller answered and filed a counterclaim,
seeking the actual amount of taxes Alpine owed. See id. § 112.052(c). After discovery, the
Comptroller determined that Alpine made sales of $32,014,745.21 through its independent
salespersons in Texas from 1994 to 1998. Based on these sales figures, the Comptroller sought
judgment against Alpine for $2,000,921.57 in back taxes. The Comptroller filed a motion for
summary judgment on Alpine's protest suit and on its own counterclaim. The district court granted
the Comptroller summary judgment. This appeal followed.
STANDARD OF REVIEW
When a taxpayer files suit to recover taxes paid under protest, it is the taxpayer's
burden to go forward and show a right to the taxes paid under protest. See A. W. Cullum & Co. v.
Calvert, 450 S.W.2d 419, 422 (Tex. Civ. App.--Austin 1970, writ ref'd); Calvert v. Union
Producing Co., 258 S.W.2d 176, 181 (Tex. Civ. App.--Austin 1953, no writ). When the
constitutional validity of a tax is contested, we begin with a presumption that the statute is
constitutional. See Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931, 934 (Tex. 1996); see
also Upjohn Co. v. Rylander, 38 S.W.3d 600, 610 (Tex. App.--Austin 2000, pet. denied).
Taxpayers must rebut this presumption of constitutionality by introduction of "clear and cogent"
evidence. See Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 164 (1983); Norton Co.
v. Department of Revenue, 340 U.S. 534, 537 (1951); Upjohn, 38 S.W.3d at 610.
We give serious consideration to an agency's construction of a statute, as long as the
construction is reasonable and does not contradict the plain language of the statute. Continental Cas.
Co. v. Downs, 81 S.W.3d 803, 807 (Tex. 2002) (citing Tarrant Appraisal Dist. v. Moore, 845
S.W.2d 820, 823 (Tex. 1993)). We recognize that the legislature intends an agency created to
centralize expertise in a certain regulatory area "be given a large degree of latitude in the methods
it uses to accomplish its regulatory function." Moore, 845 S.W.2d at 823.
We construe the text of an administrative rule under the same principles as if it were
a statute. Phillips Petroleum Co. v. Texas Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex.
App.--Austin 2003, no pet.) (citing Texas Gen. Indem. Co. v. Texas Workers' Comp. Comm'n, 36
S.W.3d 635, 641 (Tex. App.--Austin 2000, no pet.)). We bear in mind that an administrative
agency has the power to interpret its own rules, and its interpretation is entitled to great weight and
deference. Id. The agency's construction of its rule is controlling unless it is plainly erroneous or
inconsistent. Id.
DISCUSSION
Direct Sales Organization
Alpine argues the Comptroller failed to prove as a matter of law that Alpine is a direct
sales organization. See Former 34 Tex. Admin. Code § 3.286; see also Tex. Tax Code Ann.
§ 151.024 (allowing treatment of certain dealers, distributors, supervisors, or employers as retailers
if doing so is necessary for administrative efficiency). Although the Texas Legislature has not
specifically defined the term "direct sales organization," the Comptroller's rule provides that a direct
seller can be a retailer "utilizing independent salespersons in direct sales of taxable items." Former
34 Tex. Admin. Code § 3.286(a)(1)(D), (3). When Alpine asked for a more specific definition of
"direct sales organization," the Comptroller responded that a direct sales organization "uses
individual canvassers, solicitors, peddlers, door-to-door salespersons, etc., to sell its products."
The Comptroller's summary-judgment evidence from Alpine's own manual
establishes that Alpine marketed its products through a network of independent salespersons and
encouraged them to sell Alpine products through cold calls, teaser mailing, and person-to-person
approaches, among others. (5)
Alpine argues that its dealers are not "salesmen, representatives, peddlers, or
canvassers," as envisioned in the Comptroller's definition of direct sales organization and in section
151.024 of the tax code. Rather, Alpine asserts its dealers are "independent contractors."
Notwithstanding Alpine's characterization, its dealers function in the same way as salesmen,
representatives, peddlers, or canvassers function. Alpine encourages its independent salespersons
to hold meetings in their homes to sell Alpine products and recruit new salespersons; compensation
for Alpine's dealers is based not on fixed rates or the number of hours worked, but on the amount
of Alpine's products they sell and the price at which the sales are made; and Alpine's dealers utilize
a variety of sales techniques, including cold calls, teaser mailing, and person-to-person sales, all of
which are suggested by Alpine.
Alpine further argues that the Comptroller failed to prove that Alpine is a direct sales
organization because, according to the affidavit of Alpine's president, Alpine is not a "typical" direct
sales organization and "sells both to individuals who do not have fixed-store operations and to those
who do." However, Alpine has failed to introduce actual evidence of a single independent
salesperson who sold Alpine's products through a fixed-store operation. (6) Because Alpine's
president's statements could not have been "readily controverted" and are conclusory, they constitute
no evidence. See Tex. R. Civ. P. 166a(c) (affidavits by interested witness constitute evidence if,
among other factors, they could have been readily controverted); Burrow v. Arce, 997 S.W.2d 229,
236 (Tex. 1999) (conclusory affidavit is incompetent summary-judgment evidence). We therefore
hold that the Comptroller established that Alpine is a direct sales organization. We overrule Alpine's
first issue.
Compliance with Texas Tax Code
Alpine asserts the Comptroller violated section 151.024 of the tax code in two ways.
First, Alpine argues that the Comptroller failed to make "an individualized determination that unique
tax treatments for differing persons is warranted," a step Alpine alleges is required by section
151.024. Second, Alpine contends that section 151.024 of the tax code does not authorize the
Comptroller to create a class of persons labeled "direct sales organizations" and require them to
collect sales and use taxes.
1. Determination of Administrative Efficiency
The legislature authorizes the Comptroller "to regard a salesman, representative,
peddler, or canvasser as the agent of a dealer, distributor, supervisor, or employer . . . [and to] regard
the dealer, distributor, supervisor, or employer as a retailer or seller for the purpose of [chapter 151
of the tax code]" if the Comptroller "determines that it is necessary for the efficient administration
of [the chapter]." Tex. Tax. Code Ann. § 151.024. Alpine argues that the Comptroller failed to
make an individualized determination that requiring Alpine to remit sales taxes is necessary for
administrative efficiency. As support for its contention, Alpine states the Comptroller never
conducted investigations, hearings, or studies in making such a determination. (7)
Although the legislature requires that the Comptroller determine that treatment of a
dealer, distributor, supervisor, or employer as a retailer is necessary for administrative efficiency,
the legislature does not require the Comptroller to take particular steps in making this determination.
The Comptroller produced ample evidence to show that it did, in fact, determine that Alpine is a
direct sales organization and that treatment of Alpine as a retailer under section 151.024 is necessary
for administrative efficiency. The Comptroller produced letters from its Tax Policy Division to
Alpine that were part of the Comptroller's investigation, various internal e-mails that were part of
the Comptroller's investigation, and Alpine's accounting records that show up to 20,000 Alpine
salespersons residing in Texas during the tax years in question. The Comptroller argued in both its
correspondence to Alpine and its argument to the district court that treatment of Alpine as a retailer
and the corresponding requirement that Alpine collect the tax--as opposed to taxation of up to
20,000 individual salespersons--is necessary for administrative efficiency. See Letter Op. Tex.
Comptroller No. 9907537L (1999) ("The purpose of the policy is to ease the administrative burden
to our state. By regarding the direct sales organization as the retailer and not permitting the
independent distributors, the administrative burden of permitting thousands of home-based
distributors who sell products for direct sales companies is eliminated."). We hold that the
Comptroller's summary-judgment evidence establishes that the treatment of Alpine as a retailer for
tax purposes is necessary for administrative efficiency. (8)
2. Statutory Authority
Alpine argues that section 151.024 of the tax code does not authorize the Comptroller
to create a class of persons labeled direct sales organizations and require them to collect sales and
use taxes. The core of Alpine's argument is that if the Comptroller is not required to make a
determination that treatment of direct sales organizations as retailers is necessary for administrative
efficiency, then the Comptroller's rule constitutes an unlawful delegation of legislative authority.
See Moody v. City of Univ. Park, 278 S.W.2d 912, 922 (Tex. Civ. App.--Dallas 1955, writ ref'd
n.r.e.) ("It is fundamental that a legislative body may not delegate unlimited legislative powers and
functions to an administrative agency.").
The Comptroller responds that because it did, in fact, determine that treatment of
Alpine as a retailer is necessary for administrative efficiency, it complied with section 151.024. The
Comptroller further argues that its rule "is a valid exercise of the authority granted to the Comptroller
under [section 151.024 of the tax code] to treat distributors of products sold through salesmen as the
retailer of those products." See Former 34 Tex. Admin. Code § 3.286.
We agree with the Comptroller. Although Alpine argues that the Comptroller has
created a blanket category of "direct sales organizations" and treats all direct sales organizations as
retailers for tax purposes, the summary-judgment evidence regarding an individualized determination
as to Alpine proves otherwise. Because the Comptroller made an individualized determination, we
hold that the Comptroller complied with the tax code. We overrule Alpine's second issue.
Constitutional Claims
A. Commerce Clause
By specifically delegating to Congress the power "to regulate Commerce . . . among
the several States," the commerce clause implicitly prohibits the states from actions that interfere
with interstate commerce. U.S. Const. art. I, § 8, cl. 3; see Quill Corp. v. North Dakota, 504 U.S.
298, 309 (1992). The prohibition does not, however, render impermissible all direct state taxation
of interstate commerce. Rylander v. Bandag Licensing Corp., 18 S.W.3d 296, 299 (Tex.
App.--Austin 2000, pet. denied). A state tax on a foreign corporation will be sustained if the "tax
[1] is applied to an activity with a substantial nexus with the taxing State, [2] is fairly apportioned,
[3] does not discriminate against interstate commerce, and [4] is fairly related to the services
provided by the State." Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).
Alpine's protest letter stated that the Comptroller's tax violated the commerce clause
of the United States Constitution because "Alpine does not have a sufficient nexus with the State of
Texas." This was also the only ground asserted by Alpine in support of its commerce-clause
contention in its summary-judgment response. For the first time on appeal, however, Alpine argues
that the Comptroller failed to carry its summary-judgment burden because it failed to introduce
evidence on the last three Complete Auto commerce-clause factors. (9) Alpine's argument ignores that
the issues to be determined in a protest suit "are limited to those arising from the reasons expressed
in the written protest as originally filed." Tex. Tax Code Ann. § 112.053(b) (West 2001). (10) Because
the nexus requirement of the Complete Auto factors was the only argument ever made by Alpine in
support of its commerce-clause contention, we reject Alpine's argument that the Comptroller was
required to rebut as a matter of law arguments not asserted by Alpine in its protest letter.
As to the nexus requirement, Alpine contends that the Comptroller failed to prove as
a matter of law that its tax "is applied to an activity with a substantial nexus with the taxing State."
See Complete Auto, 430 U.S. at 279. The nexus requirement of Complete Auto is satisfied if the
taxpayer has a physical presence in the taxing state. See Quill, 504 U.S. at 317-18 (upholding bright-line physical presence test for determining whether out-of-state company may be taxed); see also
National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 758-89 (1967) (providing safe
harbor for mail-order or catalogue companies with no physical presence in taxing state).
The presence of a sales force in the taxing state is sufficient to satisfy the physical
presence test. See, e.g., Tyler Pipe Indus., Inc. v. Washington State Dep't of Revenue, 483 U.S. 232,
250 (1987); Scripto, Inc. v. Carson, 362 U.S. 207, 211 (1960). Scripto, a Georgia corporation, had
no office or regular employees in Florida, but it employed wholesalers or jobbers to solicit sales of
its products in Florida. Scripto, 362 U.S. at 208-11. The United States Supreme Court held that a
sufficient nexus existed and that Florida may require these solicitors to collect a use tax from Florida
customers. Id. at 211. Although Scripto argued correctly that the "salesmen" were not employees
of Scripto, the United States Supreme Court determined that "such a fine distinction is without
constitutional significance." Id.; accord National Geographic Soc'y v. California Equalization Bd.,
430 U.S. 551, 556-558 (1977).
In Tyler Pipe, Tyler sold a large volume of cast iron, pressure and plastic pipe and
fittings, and drainage products in Washington, but manufactured the products in other states. 483
U.S. at 249. Tyler maintained no office, owned no property, and had no employees residing in the
State of Washington; its solicitation of business in Washington was directed by executives who
maintained their offices out of state and by an independent contractor located in Seattle. Id.
Although Tyler argued that its representative in Seattle was an independent contractor, as opposed
to an agent, the United States Supreme Court affirmed the Washington Supreme Court's analysis
"that this showing of a sufficient nexus could not be defeated by the argument that the taxpayer's
representative was properly characterized as an independent contractor instead of as an agent." Id.
The United States Supreme Court again stated that "such a fine distinction is without constitutional
significance." Id. (citing Scripto, 362 U.S. at 211).
Alpine's first argument in support of its contention that the Comptroller did not
establish a sufficient nexus between Texas and Alpine's sales activities is that Alpine had no
inventory, real estate, employees, offices, bank accounts, or other assets in Texas. However, the
Comptroller introduced evidence that Alpine maintained a network of up to 20,000 independent
salespersons in Texas. Alpine's Texas sales network made sales of $32,014,745.21 from 1994 to
1998. Alpine suggested a variety of sales techniques in its "Success and Evaluation" manual for its
sales force to use when selling Alpine's products. Alpine's extensive network of salespersons--even
though they are independent contractors--establishes a sufficient nexus between Texas and Alpine's
sales activities. See Tyler Pipe, 483 U.S. at 249; Complete Auto, 430 U.S. at 279; Scripto, 362 U.S.
at 211.
Next, Alpine argues that its business structure is distinguishable from those at issue
in Scripto and Tyler Pipe, where the taxpayers' sales forces helped the taxpayers maintain markets
in the taxing states. Alpine argues that "Alpine's independent dealers do not maintain markets, but
rather are themselves the market, which is exemplified by the large number of independent dealers
and the very few purchases each ultimately makes from Alpine."
We disagree. In a letter to the Comptroller, Alpine's president stated that "[m]ost of
our dealers are selling the product retail" and that "[w]e actually have very little personal
consumption." The fact that some salespersons were making only a few purchases from Alpine does
not indicate that they were the market for Alpine; rather, it indicates that these salespersons were not
willing or able to find purchasers for Alpine's products. The uncontroverted evidence shows a
sufficient nexus between Texas and Alpine's sales activities. We therefore reject Alpine's
contention that the Comptroller's tax violates the commerce clause. (11) We overrule Alpine's third
issue.
B. Due Process
Alpine argues that the Comptroller's tax violates the due process clause of the United
States Constitution. See U.S. Const. amend. XIV, § 1. "[D]ue process requires some definite link,
some minimum connection, between a state and the person, property or transaction it seeks to tax."
Miller Bros. Co. v. Maryland, 347 U.S. 340, 344-45 (1954). "[I]f a foreign corporation purposefully
avails itself of the benefits of an economic market in the forum State, it may subject itself to the
State's in personam jurisdiction even if it has no physical presence in the State." Quill, 504 U.S. at
307. Because Alpine's sales force in Texas constitutes a physical presence, the minimum-connection
requirement is satisfied. See id. at 307-08.
Alpine also asserts that the Comptroller's tax violates due process because the
Comptroller failed to show a rational basis for the tax. See Federal Communications Comm'n v.
Beach Communications, Inc., 508 U.S. 307, 314-15 (1993). The Comptroller argues that
administrative convenience provides a rational basis for its classification of Alpine as a direct sales
organization and for its imposition of tax against Alpine. This rationale is supported by letter
opinions and hearing decisions indicating that the purpose of the Comptroller's tax is to ease the
administrative burden on the state. Although Alpine disagrees with the Comptroller's conclusion,
it has failed to negate the rational basis asserted by the Comptroller. See id. at 315 (party challenging
tax classification bears burden to negate every conceivable basis that might support it). We overrule
Alpine's fourth issue.
C. Equal Protection
Alpine argues that the Comptroller's tax violates the equal protection clauses of the
United States Constitution and the Texas Constitution because the Comptroller's classification of
Alpine as a direct sales organization, along with its different treatment of direct sales organizations,
denies Alpine equal protection of the law. States generally have broad powers to impose and collect
taxes, but they must not make classifications among taxpayers that are arbitrary, unreasonable, or
capricious. See Hurt v. Cooper, 110 S.W.2d 896, 901 (Tex. 1937); Upjohn, 38 S.W.3d at 609. That
all taxes be equal and uniform requires only that all persons falling within the same class be taxed
alike. Upjohn, 38 S.W.3d at 609.
Under the equal-protection test applied here, Alpine must show that the Comptroller's
classification resulted in discrimination between similarly situated taxpayers. See Westcott, 104
S.W.3d at 150; Sharp v. Caterpillar, Inc., 932 S.W.2d 230, 241 (Tex. App.--Austin 1996, writ
denied) (taxpayer must show that liability classification actually resulted in discrimination between
similarly situated taxpayers). Because Alpine was unable to make any such showing, we overrule
its fifth issue.
The Comptroller's Counterclaim
In its final issue, Alpine argues that the Comptroller failed to prove that it was entitled
to recover on its counterclaim. The Comptroller introduced evidence that Alpine's independent
salespersons in Texas made $32,014,745.21 in sales during the audit period. The Comptroller then
applied the 6.25 percent tax rate to arrive at the amount of tax due: $2,000,921.57.
Alpine asserts that the Comptroller's calculation is incorrect because the Comptroller
refused to issue sales tax permit numbers to each of Alpine's independent salespersons, thereby
precluding Alpine's salespersons from completing resale exemption certificates for sales that should
not have been included in the gross receipts used by the Comptroller to calculate back taxes. See
Tex. Tax Code Ann. § 151.054(a) (West 2002) (except for certain alcoholic beverage sales, "all
gross receipts of a seller are presumed to have been subject to the sales tax unless a properly
completed resale or exemption certificate is accepted by the seller"); id. § 151.302(a) (West 2002)
("The sale for resale of a taxable item is exempted from the taxes imposed by this chapter."); id.
§ 151.152(b) (West Supp. 2004) (resale certificate must state sales tax permit number).
The Comptroller responds that Alpine confuses resale certificates and exemption
certificates. The purpose of resale certificates is to prevent double taxation. Sharp v. Clearview
Cable TV, Inc., 960 S.W.2d 424, 426 (Tex. App.--Austin 1998, pet. denied). In section 151.024,
the legislature authorized the Comptroller to treat certain salesmen, representatives, peddlers, or
canvassers as the mere agents of a dealer, distributor, supervisor, or employer. See Tex. Tax Code
Ann. § 151.024. The dealer, distributor, supervisor, or employer is then treated as the actual retailer.
See id. When section 151.024 applies--as the Comptroller proved it applies here--the relationship
between the dealer, distributor, supervisor, or employer (Alpine) and its salespersons is that of
principal and agent, not purchaser and seller. Because Alpine is treated as the retailer for tax
purposes, the Comptroller is not required to provide sales tax permit numbers to each of Alpine's
independent salespersons. (12)
Exemption certificates, on the other hand, are used to certify that a certain sale is
exempt from sales and use tax. No sales tax permit number is required to obtain exemption
certificates, which are downloadable at no charge from the Comptroller's website. The Comptroller
allows direct sales organizations to accept exemption certificates from its salespersons and report
any exempt sales to the Comptroller. See Letter Op. Tex. Comptroller No. 9907537L (1999). We
therefore reject Alpine's contention that the Comptroller is not entitled to summary judgment on its
counterclaim due to the Comptroller's failure to issue sales tax permit numbers to each of Alpine's
salespersons. The only other arguments Alpine presents to contest the Comptroller's counterclaim
are the same arguments presented in Alpine's first five issues. Because we have already overruled
each of these issues, we overrule Alpine's final issue on the Comptroller's counterclaim.
CONCLUSION
The Comptroller proved as a matter of law that Alpine is a direct sales organization.
The Comptroller also proved that it determined that treatment of Alpine as a retailer for tax purposes
is necessary for administrative efficiency. The Comptroller's imposition of tax directly against
Alpine--as opposed to imposition of the tax against Alpine's individual salespersons--does not
violate the commerce clause, due process, or equal protection. Finally, the Comptroller proved as
a matter of law that it was entitled to summary judgment on its counterclaim. We therefore affirm
the district court's summary judgment in favor of the Comptroller.
__________________________________________ Mack Kidd, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Affirmed
Filed: July 15, 2004
1. 21 Tex. Reg. 11800 (1996) (amended 2002) (current version at 34 Tex. Admin. Code Ann.
3.286 (2004)) (Former 34 Tex. Admin. Code § 3.286).
2. As an individual issue, Alpine argues the Comptroller failed to prove that its tax is
necessary for the efficient administration of the tax code. Because this issue is duplicative of the
argument contained within its second issue, we will address Alpine's argument in conjunction with
that issue.
3. Alpine correctly notes that not all persons listed in its accounting records sold Alpine
products during every year from 1994 to 1998. However, our review of Alpine's records reveals
hundreds, if not thousands, of salespersons with Texas addresses who purchased Alpine products
during one or more of each of the years in question.
4. The tax code provides:
§ 151.024. Persons Who May be Regarded as Retailers
If the comptroller determines that it is necessary for the efficient
administration of this chapter to regard a salesman, representative, peddler, or
canvasser as the agent of a dealer, distributor, supervisor, or employer under
whom he operates or from whom he obtains the tangible personal property that
he sells, whether or not the sale is made in his own behalf or for the dealer,
distributor, supervisor, or employer, the comptroller may so regard the salesman,
representative, peddler, or canvasser, and may regard the dealer, distributor,
supervisor, or employer as a retailer or seller for the purpose of this chapter.
Tex. Tax Code Ann. § 151.024 (West 2002).
5. Alpine asserts for the first time on appeal that there is no evidence to support the
Comptroller's contention that Alpine is a direct sales organization because "the only evidence
proffered by the Comptroller was a manual that was not issued until after the tax years in question."
Although the manual submitted as an exhibit to the Comptroller's motion for summary judgment
was printed in April 1998, it clearly indicates that it was first printed in November 1995 and that the
information contained therein was copyrighted in 1995. Moreover, Alpine does not argue that its
manual does not accurately reflect Alpine's business practice for any of the tax years in question.
We therefore reject Alpine's contention that the manual constitutes no evidence.
6. In Alpine's early correspondence to the Comptroller, Alpine stated that its products were
being sold at retail through "Home Environment Center" franchises. Although the Comptroller
requested additional information about Alpine's contention and informed Alpine that the
Comptroller's determination could change upon receipt of additional facts, Alpine failed to support
its bare assertion that its products were being sold in "Home Environment Center" franchises.
7. The tax code entitles a taxpayer to obtain a hearing to redetermine a tax. Tex Tax. Code
Ann. § 151.510 (West 2002). Alpine never requested such a hearing.
8. We also overrule appellant's separate issue that the Comptroller failed to prove that its tax
is necessary for administrative efficiency.
9. Although Alpine has introduced no evidence that the Comptroller's tax violates any of the
final three Complete Auto factors, Alpine argues that "[t]his one procedural omission requires
reversal of the summary judgment."
10. This requirement serves a twofold purpose: (1) allowing the Comptroller the first
opportunity to determine the merits and validity of the protest; and (2) preventing the protestor from
taking advantage by "changing horses" at trial. Lawrence Indus., Inc. v. Sharp, 890 S.W.2d 886, 892
(Tex. App.--Austin 1994, writ denied).
11. Alpine cites Miller Brothers Co. v. Maryland, 347 U.S. 340 (1954), as support for its
contention that there is not a sufficient nexus between Texas and its sales activities. In Miller
Brothers, the United States Supreme Court held that Maryland could not tax a Delaware furniture
store because the only connection between the state and the store arose after goods were bought in
Delaware and transported to Maryland by the customer, common carrier, or by the store's own
delivery trucks. Id. at 341. Miller Brothers, however, is easily distinguishable because the furniture
store maintained no sales force in Maryland whatsoever. Id. Here, Alpine maintains an extensive
sales network in Texas for the purpose of marketing and selling its products.
12. Alpine has not argued that double taxation could result from the Comptroller's denial of
sales tax permits to Alpine's salespersons or the Comptroller's treatment of Alpine as a retailer.
| {
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} |
76-82 St. Marks, LLC v Gluck (2017 NY Slip Op 01329)
76-82 St. Marks, LLC v Gluck
2017 NY Slip Op 01329
Decided on February 22, 2017
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
BETSY BARROS, JJ.
2015-03756
(Index No. 5941/10)
[*1]76-82 St. Marks, LLC, appellant,
vCindy Gluck, respondent, et al., defendant.
Bedford Mantia, LLP, New York, NY (James Mantia of counsel), for appellant.
Stern & Stern, Brooklyn, NY (David Lyle Stern of counsel), for respondent.
DECISION & ORDER
Appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Yvonne Lewis, J.), dated March 3, 2015. The order and judgment granted the motion of the defendant Cindy Gluck pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, made at the close of the plaintiff's case, and dismissed the complaint.
ORDERED that the order and judgment is affirmed, with costs.
The plaintiff commenced this action to recover damages for breach of a personal guaranty of a commercial lease. At trial, the plaintiff proffered a faxed copy of the guaranty agreement which, on its face, was an incomplete document, since only the last two lines of what should have been paragraph 4 were included on the second page of the purported guaranty. The plaintiff attempted to have the copy admitted into evidence pursuant to a response to its notice to admit by the defendant Cindy Gluck, in which she admitted that the exhibit was a true and complete copy of the guaranty agreement. However, the Supreme Court permitted Gluck to withdraw her response to the notice to admit. The court further denied admission of the copy of the guaranty. At the close of the plaintiff's case, Gluck moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, arguing that the plaintiff failed to make a prima facie case regarding the terms of the guaranty or its damages. The Supreme Court granted the motion and entered judgment against the plaintiff dismissing the complaint. The plaintiff appeals.
The Supreme Court providently exercised its discretion in permitting Gluck to withdraw her admission that the copy of the guaranty was a true and complete copy of the guaranty agreement, since the admission was at the heart of the controversy and was contrary to Gluck's previously submitted pleading (see CPLR 3123[b]; Voigt v Savarino Constr. Corp., 94 AD3d 1574; Riner v Texaco, Inc., 222 AD2d 571). The plaintiff could not have reasonably believed that the authenticity and completeness of the copy of the guaranty, which was on its face missing a portion of paragraph 4, would not be in "substantial dispute at the trial" (CPLR 3123[a]; see Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770, 771).
Moreover, the Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, "secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith" (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 644 [citations omitted]; see Amica Mut. Ins. Co. v Kingston Oil Supply Corp., 134 AD3d 750, 752; Kliamovich v Kliamovich, 85 AD3d 867, 869). Once the absence of an original document is excused, all competent secondary evidence is generally admissible to prove its contents (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 645). However, the proponent of the secondary evidence has a "heavy burden of establishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal of the original" (id.; see People v Joseph, 86 NY2d 565, 570; Stathis v Estate of Karas, 130 AD3d 1008, 1010). "Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original' before ruling on its admissibility" (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 645, quoting United States v Gerhart, 538 F2d 807, 809 [8th Cir]; see Marion v Coon Constr. Co., 216 NY 178, 182).
Here, even if the plaintiff sufficiently explained the unavailability of the original guaranty (see Glatter v Borten, 233 AD2d 166, 168), it failed to meet its heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original (see Stathis v Estate of Karas, 130 AD3d at 1010-1011; Bell Atl. Yellow Pages v Havana Rio Enters., 184 Misc 2d 863, 867 [Civ Ct, New York County]). The plaintiff's principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a) (see People v Rosa, 156 AD2d 733, 734; cf. Kaliontzakis v Papadakos, 69 AD3d 803, 805; see also Citibank [South Dakota] N.A. v Improta, 47 Misc 3d 1202[A] [Civ Ct, Richmond County]).
The plaintiff had the burden of proving the existence, terms, and validity of the guaranty (see Amica Mut. Ins. Co. v Kingston Oil Supply Corp., 134 AD3d at 752; Verizon N.Y., Inc. v Barlam Constr. Corp., 90 AD3d 1537). Absent evidence of the complete terms of the guaranty, the plaintiff failed to establish its prima facie case (see Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056; Wong v Wong, 86 AD3d 439; Ellen v Lauer, 210 AD2d 87, 88). Furthermore, Gluck is correct that the plaintiff failed to make a prima facie case regarding its damages, since the summary chart of charges and payments made under the lease was prepared solely in anticipation of litigation and should not have been received in evidence, and the plaintiff failed to provide any underlying documents to establish the proper charges and payments made (see CPLR 4518[a]; National States Elec. Corp. v LFO Constr. Corp., 203 AD2d 49; Equidyne Corp. v Vogel, 160 AD2d 389; Wilson v Bodian, 130 AD2d 221, 229-230).
Accordingly, the Supreme Court properly granted Gluck's motion for judgment as a matter of law dismissing the complaint (see CPLR 4401; Armonk Snack Mart, Inc. v Robert Porpora Realty Corp., 138 AD3d 1045).
In light of our determination, the plaintiff's contentions regarding Gluck's affirmative defenses have been rendered academic (cf. Ross Realty v V & A Fabricators, Inc., 42 AD3d 246, 251). The plaintiff's remaining contentions are without merit.
CHAMBERS, J.P., AUSTIN, HINDS-RADIX and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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80 So.3d 486 (2012)
STATE ex rel. Lionel R. COLLINS
v.
STATE of Louisiana.
No. 2011-KH-1034.
Supreme Court of Louisiana.
February 10, 2012.
Denied.
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677 S.W.2d 231 (1984)
Simon GOMEZ, et al., Appellants,
v.
Carlos FRANCO, et al., Appellees.
No. 13-83-355-CV.
Court of Appeals of Texas, Corpus Christi.
August 31, 1984.
*232 Ruben R. Pena, King & Odum, Mission, for appellants.
R.A. Vidaurri, Flores, Sanchez, Vidaurri, Munoz & Guerra, McAllen, for appellees.
Before NYE, C.J., and BISSETT and KENNEDY, JJ.
OPINION
NYE, Chief Justice.
This is an appeal from a judgment in which the jury found that appellee Carlos Franco loaned money to appellants Simon and Patricia Gomez, by obtaining a Letter of Credit for them, for which he had not been paid. The trial court entered judgment *233 in favor of Franco for $17,441.84. Simon and Patricia Gomez appeal.
The appellants are the daughter and son-in-law of the appellee, Carlos Franco. Franco brought suit against Mr. and Mrs. Gomez, claiming that they owed him money on a Letter of Credit that he obtained on their behalf. Franco alleged that he obtained the Letter of Credit from McAllen State Bank in his name in order to assist the appellants in purchasing 15,120 pairs of shoes from Hong Kong. He testified at trial that he expected to be repaid by the appellants. At the time of the transaction, appellants were the owners of a retail variety store, and appellee Franco was in the electronics business. Appellants assert that the shoes were a gift from their father and father-in-law or, alternatively, it was a sale of goods. They contend that, if the transaction was a sale of goods, it is unenforceable since it was not in writing in compliance with TEX.BUS. & COM.CODE ANN. § 2.201 (Tex. UCC) (Vernon 1968).
A review of all of the testimony will be necessary in order to explain the conflicting contentions of the parties. Franco, the appellee, testified that Simon Gomez, his son-in-law, requested him to assist them in purchasing some shoes from Hong Kong. Franco said that Gomez told him that he could easily sell the shoes at his store within sixty days after they received them. Franco, the appellant, applied for a Letter of Credit which was to be paid ninety days after the shoes were received. All transactions were in Franco's name or his company name. Franco indicated that he agreed to help his daughter and son-in-law on the condition that, when the money became due, appellants would pay the bank. According to Franco, Gomez agreed. Appellee also testified that the parties agreed that he would be paid a commission for his effort in obtaining the necessary line of credit. Franco claims that he did not receive the promised commission when the shoes were sold, nor did he sue for it.
During Mr. Franco's testimony, various exhibits were introduced which showed the amount that he had been charged to complete the purchase of the shoes through a Letter of Credit. Franco testified that the appellants paid him $5,000.00 after the Letter of Credit was obtained. According to Franco, this money was repayment on an earlier loan he had made to his daughter and her husband and was not a payment on the loan in question. He testified that he never told appellants that he would forgive the balance due. Appellee testified that he paid the bank the amount owed on the Letter of Credit, but that he was never paid the amount of the letter of credit or interest which was due and owing.
Patricia Gomez, the daughter and one of the appellants herein, testified that her father told her that the shoes were in the United States, and that if she paid the import tax on them, she could have them. She claimed she never asked her father to order them. She also said that her father never told her how much they cost. She also testified that her father told her, after they had paid him $5,000.00, that they did not owe him any more money. She said that, when her father gave her the shoes, they began to sell them in the store. She testified that in August 1981, they obtained a Letter of Credit in their own name, thereby attempting to refute Franco's testimony that they needed his financial assistance.
The son-in-law testified that he never asked his father-in-law to buy the shoes for him. He claims no demand for payment was made until the inception of the lawsuit. He testified that he placed an order himself for the same type of shoes in October 1981, paid cash and obtained a better price. Mr. Gomez, too, claimed that the money was a gift to him and his wife.
The jury found, however (in answer to special issues); that the appellee and appellants had agreed upon a loan; that $17,441.84 was still due Mr. Franco; that the money was not a gift; and that the $5,000.00 Franco received from appellants was not a part payment on the loan.
Appellants assert three points of error on appeal. First, they claim the trial court erred in denying them certain special issues because they plead the defense of the Statute *234 of Frauds under TEX.BUS. & COM. CODE ANN. § 2.201(a) (Tex. UCC) (Vernon 1968), but such issues were refused. They claim that appellee's testimony that he expected a commission on the sale of the shoes was evidence that the transaction was one for the sale of goods and not a loan. The three issues that the appellants requested were, as follows:
1. Do you find from a preponderance of the evidence that the dominant factor or "essence" of the transaction was that of a loan or of the sale of goods?
You are instructed that essence means the predominant factor, the thrust, the purpose of the transaction was for the rendition of a loan or for the sale of goods.
2. Do you find from a preponderance of the evidence that the plaintiff and defendants at the time of the transaction treated each other as merchants?
3. Do you find from a preponderance of the evidence that there existed a writing between the parties such that the terms of the transaction in question were described and which the defendant signed?
A writing need not be a single piece of paper but may be several documents which taken together will specify the terms of the agreement.
Under TEX.R.CIV.P. 277 and 279, all parties are entitled to have controlling issues that are raised by the written pleadings and evidence submitted to the jury. Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619 (Tex.Civ.App.Beaumont 1978, writ ref'd n.r.e.). A "controlling issue" is one which, if answered favorable to the theory in which it is presented, will support a basis for judgment for the proponent of the issue. Stone v. Metro Restaurant Supply, Inc., 629 S.W.2d 254 (Tex.App.Fort Worth 1982, writ ref'd n.r. e.); Simmons Motor Co. v. Mosley, 379 S.W.2d 711 (Tex.Civ.App.Austin 1964, writ ref'd n.r.e.). Appellant correctly states that the issue before this Court is not the applicability of the U.C.C. to this case, but whether the appellants had the right to have their issues submitted to the jury.
The issues appellants requested sought to disprove appellee's theory of the case that the transaction was a loan. They plead that the transaction was a sale of goods. Appellants' requested issues were not controlling issues because by themselves they would not support a basis for judgment for the appellants. Their requested issues sought only to bring the case within the U.C.C. by inquiring whether the transaction was, in fact, a sale of goods. An affirmative finding on the issue as to whether the transaction was a sale vel non would not support a verdict in their favor without a negative finding on appellee's issue, which asked if the transaction was a loan. Appellants' requested issue, inquiring whether the transaction was in writing, was unnecessary. The evidence was uncontroverted that there was no written memorandum between the parties. The issue inquiring whether the transaction was a sale which appellants requested was, in fact, a rebuttal issue. Inferential rebuttal issues have been variously referred to as denial issues or argumentative denials rather than direct negatives. Select Insurance Co. v. Boucher, 561 S.W.2d 474 (Tex. 1978). They are evidentiary in the sense that a favorable response to such issues will not support a judgment; a negative answer to an opponent's issue which is submitted to support his ground of recovery is also necessary. G. Hodges, Special Issue Submission in Texas § 50 at p. 40 (1959). The basic characteristic of an inferential rebuttal issue is that it presents a contrary or inconsistent theory from the claim relied upon for recovery. Select Insurance Co. v. Boucher, 561 S.W.2d at 477. Inferential rebuttal issues should not be submitted to the jury. TEX.R.CIV.P. 277. We hold that the requested issues were properly refused by the trial court.
The appellants also argue that the issues should have been submitted because there is evidence that the transaction in question was a sale of goods. The trial court is required to submit an issue if there *235 is any evidence presented with respect to that issue. Huckaby v. Henderson, 635 S.W.2d 129 (Tex.App.Houston [1st Dist.] 1981, writ ref'd n.r.e.); Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ.App.Corpus Christi 1977, no writ). Here, appellant again urges that the contract in question was for the sale of goods because there was evidence that appellee was to receive a commission. TEX.BUS. & COM.CODE ANN. § 2.201(a) (Vernon 1968) provides:
(a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
Article 2 of the Texas Business and Commerce Code is applicable to the sale of "goods" which is defined as "all things ... which are movable at the time of identification to the contract for sale, other than the money in which the price is to be paid, investment securities ... and things in action." TEX.BUS. & COM.CODE ANN. § 2.105(a) (Tex.UCC) (Vernon 1968). (Emphasis added.) Article 2 is also expressly limited in scope to sales. O.J. & C. Co. v. General Hospital Leasing, Inc., 578 S.W.2d 877 (Tex.Civ.App.Houston [14th Dist.] 1979, no writ). The question of whether a particular transaction is a sale or some other type of transaction is determined by the intention of the parties. Republic Building and Loan Ass'n v. Simpson, 77 S.W.2d 1101 (Tex.Civ.App.El Paso 1935, writ dism'd). The jury resolved this issue of fact adversely to appellant's contention.
The evidence introduced at trial showed that appellee had obtained a Letter of Credit in his name. The appellants went to Brownsville to arrange for the transportation of the shoes. The merchandise was returned to appellants' warehouse and eventually sold by appellants at their store. Nowhere in the record does it appear that a sale of goods was intended by either party. Carlos Franco's position throughout the trial was that he had loaned Patricia and Simon Gomez the money by obtaining a Letter of Credit in order to purchase the shoes for them. The controverted position of the appellants was that the shoes were intended to be a gift from Franco to them, rather than a loan. Although appellants plead the Statute of Frauds as a defense, appellant Patricia Gomez specifically denied that she had ordered shoes from her father. The testimony of appellee Franco that Gomez agreed to pay him a commission on the shoes does not place the transaction within Article 2. There was no evidence of an agreement between Franco and Gomez that Franco would sell and transfer title in the shoes to appellants. A commission for lending credit does not meet the definition of "goods" defined in TEX.BUS. & COM.CODE ANN. § 2.105(a) (Tex.UCC) (Vernon 1968).
We hold that the trial court properly refused to submit appellants' requested issues to the jury because they were not controlling issues within TEX.R.CIV.P. 277 and 279, and there was no evidence to support their submission. Appellants' first point of error is overruled.
In appellants' second and third points of error, they allege that the trial court erred in failing to grant their motion for Judgment Non Obstante Veredicto because there was no evidence to support the jury's verdict. Alternatively, the appellants assert the trial court erred in accepting the jury's verdict because there was insufficient evidence to support the verdict. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d *236 120 (Tex.App.Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).
This case is replete with conflicting testimony. The duty of the appellate court is to review the evidence as presented. It is not our province to substitute our judgment for that of the trier of facts, whether judge or jury. Jim Walter Homes, Inc. v. Castillo, 616 S.W.2d 630 (Tex.Civ.App.Corpus Christi 1981), no writ; Spoonmore v. Board of Polygraph & Examiners, 608 S.W.2d 360 (Tex.Civ. App.Austin 1980, writ ref'd n.r.e.). Here, the bulk of the testimony heard by the jury was testimony of the parties themselves. The fact that the testimony is that of an interested party merely presents the additional issue of what degree of credibility his testimony should be afforded. Williams v. Lemens, 609 S.W.2d 596 (Tex.Civ. App.Austin 1980, no writ).
The appellee testified that $17,441.82 was the amount still due on the Letter of Credit with interest and banking charges. His testimony was supported by documentary evidence. There is also ample evidence to support the jury's finding in Special Issue Number Three that the money was not intended as a gift. The jury was at liberty to believe or disbelieve the parties and witnesses as they chose. This is the province of the jury system. We hold that the jury's findings were not so against the great weight and preponderance of the evidence as to be manifestly unjust.
Appellants' second and third points of error are overruled. The judgment of the trial court is affirmed.
BISSETT, J., not participating.
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368 U.S. 15 (1961)
CHOBOT
v.
WISCONSIN.
No. 146.
Supreme Court of United States.
Decided October 23, 1961.
APPEAL FROM THE SUPREME COURT OF WISCONSIN.
Max Raskin for appellant.
John W. Reynolds, Attorney General of Wisconsin, William Platz, Assistant Attorney General, and William J. McCauley for appellee.
PER CURIAM.
The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE HARLAN are of the opinion that probable jurisdiction should be noted.
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FILED
NOT FOR PUBLICATION MAR 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PETRA HUIZAR ALANIZ, No. 05-76514
Petitioner, Agency No. A076-679-926
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
PETRA HUIZAR ALANIZ, No. 06-70754
Petitioner, Agency No. A076-679-926
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 12, 2010 **
San Francisco, California
Before: HALL, NOONAN and CALLAHAN, Circuit Judges.
Petra Huizar Alaniz seeks review of the Board of Immigration Appeals’
(“BIA”) denial of her motion to reopen and her motion for reconsideration. We
vacate the denials and remand.
On May 16, 2005, the BIA dismissed Alaniz’s appeal from the Immigration
Judge’s (“IJ”) denial of her request for cancellation of removal, and granted her
sixty days in which to voluntarily depart. Although Alaniz was represented by
counsel, the BIA sent notice of its decision to Alaniz and not her attorney.
On August 10, 2005, Alaniz filed a motion to reopen and motion to stay
removal. On October 19, 2005, the BIA denied the motions, stating that because
she had failed to depart within the sixty days allotted for her voluntary departure
she was not eligible for any relief.
On November 15, 2005, Alaniz filed a petition for review with the Ninth
Circuit (No. 05-76514) and also filed a motion to reconsider with the BIA. In the
motion to reconsider, Alaniz asserted that the BIA had violated its own regulations
by failing to serve its May 16, 2005 decision on Alaniz’s counsel. On January 23,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
2006, the BIA admitted that counsel had not been served, but found that this was
no basis for reconsideration. On February 9, 2006, Alaniz filed a second petition
for review by the Ninth Circuit (No. 06-70754).
On December 21, 2009, we issued our opinion in Hamazaspyan v. Holder,
590 F.3d 744 (9th Cir. 2009). That case concerned the notice requirements for
immigration proceedings set forth in 8 U.S.C. § 1229. The opinion states “[w]e
now hold that serving a hearing notice on an alien, but not on the alien’s counsel of
record, is insufficient when an alien’s counsel of record has filed a notice of
appearance with the immigration court.” Id. at 749. The opinion explained:
If the case is that the alien is represented by counsel of record, then
the government must serve one of his counsel of record. If, however,
the alien is not represented by counsel of record, then the government
must serve the alien. The purpose of the word “or” in the statute is to
clarify that the immigration court is not required to send notice to both
the alien and the alien’s counsel of record. Therefore, we hold that,
once the alien’s counsel files an appearance before the immigration
court, § 1229 requires the government to serve an alien’s counsel of
record with any document related to the alien’s removal proceedings.
Id.
We requested and received supplemental briefs on the impact of
Hamazaspyan on this case. The government responded that Hamazaspyan was
distinguishable because in that case the government had failed to show that either
3
the alien or the attorney were served. The government’s supplemental brief did not
address our reasoning in Hamazaspyan.
Although it is true that in Hamazaspyan neither the alien nor the attorney of
record were served, the opinion clearly states that “[i]f the case is that the alien is
represented by counsel of record, then the government must serve one of his
counsel of record.” Here, the BIA admits that it did not serve, but should have
served, Alaniz’s counsel.
This case more directly concerns the provisions of 8 C.F.R. § 1292.5(a) than
8 U.S.C. § 1229, which was the subject of Hamazaspyan. Nonetheless, the
language of § 1292.5(a) – requiring that notice be “served by or upon, made by, or
requested of the attorney or representative of record, or the person himself if
unrepresented” – reflects the same directive set forth in 8 U.S.C. § 1229, and thus
it appears that the reasoning in Hamazaspyan also applies to this case. Indeed, the
language “if unrepresented” is a stronger command than the disjunctive language
in 8 U.S.C. § 1229 that we considered in Hamazaspyan.
Accordingly, Alaniz’s petitions for review are GRANTED, the BIA’s
denials of Alaniz’s motion to reopen and motion for reconsideration are
VACATED, and this matter is REMANDED to the BIA to reconsider Alaniz’s
requests for relief in light of our opinion in Hamazaspyan, 590 F.3d 744.
4
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502 P.2d 245 (1972)
Jessie M. WILLIAMS, Appellant,
v.
Frank A. BRIGGS and Ina L. Briggs, Husband and Wife, et al., Respondents.
Supreme Court of Oregon.
Argued and Submitted July 7, 1972.
Decided October 27, 1972.
*246 Jack A. Gardner, Eugene, argued the cause for appellant. With him on the briefs were Jaqua, Wheatley & Gardner, Eugene.
William F. Frye, Eugene, argued the cause for respondents. With him on the brief were Husband, Johnson & Frye, Eugene.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
TONGUE, Justice.
This is a suit to quiet title, brought by the record owner of real property in Lane county against persons in the record chain of title, including Sandra Briggs, a minor, whose parents had her name included in the deed when they purchased the property which was later sold to plaintiff's grantor.
Although the parents disclaim any interest in the property for themselves, the mother of the minor, as her subsequently appointed guardian, seeks by countersuit to assert her daughter's claim to an undivided one-half interest in the property and to cancel the deed by which her daughter joined in the sale of the property, insofar as that deed relates to her.
Plaintiff, in reply, contends that Sandra Briggs is barred from making such a claim because of an election of remedies made by her mother, as her guardian, in a previous lawsuit involving the same property and because of estoppel and ratification arising from that same conduct. Plaintiff also contends that there was an equitable conversion of Sandra's interest in the property into personal property and that plaintiff was a bona fide purchaser of such property.
The trial court denied the affirmative relief sought by both parties, but found that Sandra Briggs is a minor and has "an interest" in the property, and that she retains the right to either affirm or disaffirm the deed conveying the property to plaintiff's vendor. Both plaintiff's complaint and defendants' countersuit were dismissed. Plaintiff appeals from that decree. We affirm.
This is a most unfortunate case in which the interest of purchasers of real property to reasonable certainty in real property transactions conflicts with the interest of minors who have an interest in real property to the proper protection of such interests. In the consideration of this case it is necessary to consider the interest of Sandra Briggs as a minor, and as completely distinct from the interest and conduct of her parents, who were largely responsible for the problems presented for decision in this case.
*247 On September 27, 1966, Sandra's parents, Mr. and Mrs. Briggs entered into a transaction involving an exchange of real property with Jack S. Morgan and wife. The Briggses, in turn, entered into a contract to sell to one Richards the property acquired by them from the Morgans. At the request of Mr. and Mrs. Briggs, the name of their daughter, Sandra was included as one of the grantees in the deed from the Morgans as "a single person," and was also included as such as one of the vendors in the contract of sale to Richards.
On March 14, 1967, Mr. and Mrs. Briggs (but not Sandra) entered into a new land sale contract with Richards to "supplement and supersede" the previous contract, to which Sandra was a named vendor. On the same date Mr. and Mrs. Briggs and Sandra, as "a single person," all executed a warranty deed back to the Morgans for a 22 acre portion of the tract originally owned by the Morgans, apparently for the price of $12,000.
One week later, on March 21, 1967, Sandra, as "a single person," executed a bargain and sale deed conveying the entire original tract to her parents. The record does not show the disposition of the $12,000, insofar as Sandra is concerned. Up to this point no guardian had been appointed for her.
Meanwhile, on March 18, 1968, the Morgans executed a "special warranty deed" conveying 10 of these 22 acres to plaintiffs, with a warranty limited to "incumbrances created or suffered thereon by grantor" and against the claims of "persons claiming by, through, or under the grantor."
On October 31, 1968, Mrs. Briggs was appointed as a general guardian for her daughter Sandra, stating that "[t]his guardianship is necessary in order to permit the sale, with clear title, of the above described real property," referring to a description of the entire original 117 acre tract, as also described in the "Inventory and Petition for License to Sell Real Property," as well as in the "License to Sell Real Property," as issued by the court on November 20, 1968.
Over one year later, on January 12, 1970, Mrs. Briggs, as guardian for Sandra, submitted to the court for approval an accounting from which it appeared that on December 24, 1968, the original tract, excepting the 22 acre portion previously sold to the Morgans, had been sold "as evidenced by" a return of sale and order confirming sale (copies of which do not appear in this record), and that "[t]he ward's interest was sold for $15,000 cash." At the time of that hearing the court permitted the filing of an Amended Accounting with reference to the distribution of these proceeds. Although such an Amended Accounting was filed, the record of this case does not show whether it was ever approved by the court.
Meanwhile, on March 13, 1969, Mr. and Mrs. Briggs and Sandra, by her mother as her guardian ad litem (also being her general guardian at that time), filed an action at law against both the Morgans and Richards, alleging that at the time of the deed to the 22 acre tract from the Briggses to the Morgans on March 14, 1968, defendant Richards was acting "as agent for and in concert with" the Morgans and that defendants made fradulent representations to the Briggses as a result of which they were induced to sell for $12,000 a parcel of land worth $50,000, and claiming $38,000 in actual damages and $10,000 in punitive damages. That action resulted in a verdict and judgment of $35,000 general and $10,000 punitive damages against Richards, who had filed an answer, but did not appear on trial. However, an Order of Involuntary Nonsuit was entered in favor of the Morgans. The Briggses then appealed to this court, which affirmed that order, on the ground that there was insufficient evidence of an agency relationship between Richards and the Morgans. Briggs v. Morgan, 94 Or.Adv.Sh. 1182, 496 P.2d 17 (1972).
While that action was still pending and on May 22, 1969, plaintiff Williams filed *248 this suit to quiet title to the same tract, as purchased by them from the Morgans. The contentions of the parties in this case, as well as its disposition by the trial court, have already been stated.
On the trial of this case, and in addition to the foregoing facts, plaintiff offered evidence that at the time of the original property exchange between the Morgans and the Briggses it was not known by the Morgans that Sandra was a minor and that plaintiff first learned of Sandra from their attorney six or eight months after purchasing the ten acre tract from the Morgans when he tried to clear the title to that tract. It also appears that on October 4, 1968 (some seven months after the date of the deed from the Morgans to plaintiff on March 18, 1968), a title company issued a report listing as an "exception" the "interest of Sandra" as disclosed by the fact that, according to court records, she was a minor child. Although the title company had previously issued a title policy to the Morgans, it apparently issued no title policy to plaintiff.
Plaintiff's first assignment of error is that the trial court erred in failing to find that Sandra was barred from claiming any interest in the property by the doctrine of election of remedies "arising by virtue of her participation, through her general guardian and guardian ad litem," in the action for fraud against the Morgans and Richards. Thus, plaintiff contends that if Mr. and Mrs. Briggs and Sandra were defrauded they could elect whether to affirm the contract and sue for damages for fraud or to disaffirm the contract and sue to rescind it.
In this case, however, we do not reach that question because we are of the opinion that where the interests of a minor in real property are involved, as in this case, neither a guardian ad litem nor a general guardian may waive the right of the minor to decide, upon becoming of age, whether to affirm or disaffirm such an interest, unless expressly authorized by a court to do so. See 6 Thompson, Real Property 32, 33, 35, § 2947 (1962); 1 Powell, Real Property 482, § 126 (1969). See also Schneider, Litigation Involving Minors and Incompetents, U.Ill.L.Forum 245, 247 (1951).[1]
This being true, it follows, a fortiori, that neither a general guardian nor a guardian ad litem of a minor may unintentionally destroy the interest of the minor in real property by the making of a binding election of remedies, so as to bar the minor from later pursuing an inconsistent remedy, at least in the absence of court authorization to do so.
The reasons for this result are stated in Dixon v. United States, 197 F. Supp. 798 at 803 (W.D.S.C. 1961), as follows (although under different facts):
"At common law infants do not possess the power to exercise the same legal rights as adults. The disabilities of infants are really privileges, which the law gives them, and which they may exercise for their own benefit, the object of the law being to secure infants from damaging themselves or their property by their own improvident acts or prevent them from being imposed on by others. The rights of infants must be protected by the court, while adults must protect their own rights. Persons dealing with infants must take notice of their privileges and disabilities. Infancy is a shield for the protection of an infant. 43 C.J.S. Infants § 19, pp. 81, 82; Beam v. McBrayer et al., 132 S.C. 72, 128 S.E. 34.
"* * *
*249 "`The guardian ad litem or next friend can make no concessions. He cannot waive or admit away any substantial rights of the infant, or consent to anything which may be prejudicial to him, even by neglect or omission; and any admission or waiver is ineffectual and not binding upon the infant, although contained in a pleading.' 31 Corpus Juris, p. 1143. See, also, 43 C.J.S. Infants § 111d."
As also stated in Hodges v. Hale, 20 Tenn. App. 233, 97 S.W.2d 454 (1936), at 458, in rejecting a somewhat similar contention of an election of remedies by the guardian of a minor:
"* * * Where the pleadings raise directly the question adjudicated, the court is thereby apprised of the fact that it is passing upon the rights of the minor and may extend a measure of protection to the rights of the minor as the ward of the court. But we do not think the same may be said of matters only incidentally involved. As to all such matters it is fair to hold that adult parties capable of acting for themselves are concluded, but it is too much to assume that the court in every case where minors are involved must search for issues incidentally raised which may in some manner affect the rights of the infant parties. * * *"
Plaintiff states that the legal authorities on the question of election of remedies by the guardian of a minor are "scant either way." This may be true. Some of the authorities cited by plaintiff, however, seem to support the foregoing proposition, rather than the position of the plaintiff.[2] The authority cited by plaintiff most directly in point is Vose v. Penny, 78 Okl. 238, 190 P. 97 (1920), in which it was held, by a divided court (at p. 98), that the guardian of a minor by taking judgment for the amount of a mortgage had elected his remedy and was thereafter estopped from questioning the validity of that mortgage. In our opinion, however, the views of the majority in that case are contrary to and inconsistent with the well established proposition previously referred to, as recognized by the dissenting opinion in that case (at pp. 103-104) and which is also more consistent with the views of this court on election of remedies, as stated in Johnson v. Dave's Auto Center, 257 Or. 34, 476 P.2d 190 (1970). Moreover, in Bynum v. Moore, 101 Okl. 128, 223 P. 687 (1923), the Oklahoma court subsequently held (at p. 689) that there was no binding election of remedies by the guardian of a minor so as to destroy the right of a minor, on becoming of age, to either affirm or disaffirm a claim of interest in real property and distinguished Vose v. Penny, supra, on its facts.
This court has held that generally, absent fraud or collusion, a judgment against a minor is as valid and effectual as if taken against an adult. Howell v. Howell, 77 *250 Or. 539, 550-551, 152 P. 217 (1915); Harding v. Harding, 46 Or. 178, 180, 80 P. 97 (1905). However, we have not previously had occasion to decide whether an election of remedies by the guardian of a minor, when made without court authorization, can have the effect of affirming a deed purporting to convey the interest of a minor in real property, also made without court authority, thus destroying a previously existing interest of the minor in such property. In English v. Savage, 5 Or. 518 (1875), it was stated (at p. 522) that the guardian ad litem for a minor in that case had "full power to bind * * * defendant [minor] by admission, even to the confessions of a judgment." In that case, the guardian for a minor had sold real property and in a previous suit by the purchaser to quiet title the guardian admitted the allegations of the complaint. The court, in entering that decree, approved those admissions on behalf of the minor. Thus, it was proper to dismiss the complaint in a subsequent suit to set aside that decree and sale.
In Schramm v. United States Nat. Bank of Portland, 151 Or. 693, 52 P.2d 181 (1935), this court, under somewhat different facts, approved and applied (at p. 704, 52 P.2d 181) the general rule that a court is not bound by the admission of the guardian of a minor relating to the interest of a minor in property, but will make its own inquiry to determine whether such an admission is in the best interests of the minor before entering a decree in such a case. To the same effect, see Savage v. McCorkle, 17 Or. 42, 21 P. 444 (1888).
In our view, these previous decisions are consistent with our holding in this case that when Sandra's mother, as her guardian ad litem (and as her general guardian) joined with Sandra's parents in the previous action at law for damages for fraud against Morgan and Richards, and when a judgment was entered against Richards and an involuntary nonsuit in favor of Morgan, there was no binding election of remedies insofar as Sandra, as a minor, was concerned so as to bar her right, upon becoming of age, to decide for herself whether to affirm or disaffirm the previous sale of that property to Morgan.
It is true that the entire common law concept that the contracts of a minor are voidable has been subject to criticism. See, for example, Edge, Voidability of Minor's Contracts: A Feudal Doctrine in a Modern Economy, 1 Ga.L.Rev. 205 (1967). It may also be true that, under some circumstances, a minor may be estopped by his own conduct from seeking to avoid a previous transaction. See dissenting opinion by O'Connell, J., in Olshen v. Kaufman, 235 Or. 423, 444, 385 P.2d 161 (1963), and Annot., 29 A.L.R.3d 1270 (1970). In this case, however, no conduct by Sandra is relied upon as the basis for the claim of estoppel, but rather the conduct of her mother as guardian in the previous litigation.
Plaintiff also assigns as error the failure of the trial court to find that Sandra was estopped by the same conduct of her guardian and that through such conduct by her guardian she had ratified the 1967 deeds, as executed by her as "a single person," but without guardianship proceedings. For the same reasons that Sandra was not barred by the conduct of her guardian as an election of remedies, it follows that neither was she barred by the same conduct as an estoppel or as a ratification by her of such conduct.
Plaintiff's final assignment of error is that the trial court erred in failing to find that plaintiff was a bona fide purchaser of the property upon the ground that by the contract for the sale of the real property to Richards there was an equitable conversion of Sandra's interest in such property into personal property. For the same reasons that the conduct of Sandra's mother, as her guardian, was not binding upon Sandra as an election of remedies, in the absence of court authorization, it also follows that the conduct of Sandra and her parents in entering into a contract for sale of the property to Richards was also not *251 binding upon her, in the absence of court authorization. Thus, such conduct did not result in an equitable conversion into personal property of her interest in the land, so as to make applicable the rules of law relating to bona fide purchasers of personal property.
As previously stated, this is a most unfortunate case. For all of these reasons, however, we are of the opinion that the trial court did not err in dismissing plaintiff's complaint on any of the grounds complained of by plaintiff's assignments of error on this appeal. Whether the court was also correct in dismissing the countersuit of Sandra's mother, as her guardian, we need not decide because no cross-appeal was filed by defendants.
Affirmed, without costs to either party.
NOTES
[1] Similarly, generally a guardian cannot, without court approval, make a binding election for an infant as to his right to take under or against the provisions of a will. Nashville Trust Co. v. Winters, 23 Tenn. App. 262, 130 S.W.2d 152, 156 (1939); Wooten's Trustee v. Hardy, 221 Ky. 338, 298 S.W. 963, 966 (1927); Moorman v. Louisville Trust Co., 181 Ky. 566, 205 S.W. 564, 565 (1918); Annot., 21 A.L.R.3d 320, 357 (1968).
[2] Thus, plaintiff quotes from 39 Am.Jur.2d 87, Guardian and Ward § 102, as follows:
"And it has been held that the court may authorize the guardian of a minor to elect whether to take compensation for the death of his father under the Workmen's Compensation Act, or sue for the damages so as to bind the minor by election." (Emphasis added)
Similarly, plaintiff quotes from 39 C.J.S. Guardian and Ward §§ 68, 110 as follows:
"Where the ward has an election between alternative rights or remedies, the guardian can exercise the necessary election on his behalf, although he cannot bind the ward by an election which is prejudicial to the ward's interests." (Emphasis added)
5 Bancroft's Probate Practice (2d ed.) 225, § 1362, also quoted by plaintiff is not to the contrary, since it does not purport to state a rule relating to the interests of minors in real property, but states only the general rule of guardianship law, that:
"Ordinarily, in the absence of fraud or collusion, the appearance of a guardian is deemed to be the appearance of the ward, and the ward is bound as fully as though he were a competent person * * *."
Kromer v. Friday, 10 Wash. 621, 39 P. 229 (1895), also cited by plaintiff while stating a similar rule relating to minors, did not apply such a rule to an election of remedies by a guardian and was decided by a divided court.
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660 F.2d 1086
UNITED STATES of America, Plaintiff-Appellee,v.Lawrence J. BLOCK, Defendant-Appellant.
No. 81-7061.
United States Court of Appeals,Fifth Circuit.
Unit B*
Nov. 12, 1981.
Robert G. Fierer, Edgar A. Neely, III, Atlanta, Ga., for defendant-appellant.
James E. Fagan, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before VANCE, FRANK M. JOHNSON, Jr., and THOMAS A. CLARK, Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
1
Subsequent to certain negotiations with the government's counsel, defendant Lawrence J. Block pled guilty to three counts of wilfully failing to file corporate excise tax returns, in violation of 26 U.S.C.A. § 7203.1 As part of the plea agreement, the Government agreed not to take a position on the sentence to be imposed. Block contends on appeal that the Government took a position as to the sentence by informing the court that he had not filed corporate income tax returns for a number of years. Block seeks a new sentence hearing, recusal of the sentencing judge and specific performance of the plea agreement. Because we conclude that the statements made by the prosecutor to the sentencing judge did not amount to taking a position on the sentence, we affirm the sentence imposed below.
2
Block is the principal owner of Planes, Incorporated, a corporation involved in the sale, rental and charter of planes. Because of the nature of the business, the corporation was required to file both quarterly excise tax returns and ordinary corporate income tax returns.2 In February 1980, Block was indicted on twenty-four counts of violating federal tax statutes. The indictment included three misdemeanor offenses for wilfully failing to file federal excise tax returns. Twelve of the twenty-four counts were ultimately dismissed because the period of limitations had expired. As to the remaining counts, Block and the Government negotiated an agreement whereby Block would plead guilty to the three misdemeanor counts relating to the failure to file excise tax returns in return for the Government's dismissing the other nine counts. The Government also agreed not to take a position as to the sentence to be imposed but specifically reserved the right to provide information to the probation officers for the presentence investigation report (PSI).3
3
The district court accepted the plea and scheduled a sentence hearing. At the hearing, the court had the benefit of both a PSI and a presentence submission prepared by Block. During the course of the hearing, the district judge questioned Block's attorney about a statement in the presentencing submission indicating that the corporation had collected the excise tax, placed it in a general fund and paid corporate income taxes on the amount.
4
Q. I have one other specific question for you, (counsel). I noticed in your submission it was brought out that the funds that were collected for the excise tax by the company were placed in a general fund that was held by the company, and you stated that the company did pay corporate tax on that money.
5
A. Yes.
6
Q. So, then, my question is looking at the dollars, how much did that diminish the amount of the excise tax?
7
A. Very modestly. I mentioned it in passing because I thought it was important that what happened is that the disarray of the tax situation was such that when the accountants came in and they were handed all of the documents they needed, they went through some of the invoices, and I thought that was important that they had access to the invoices, and they realized that the invoice documents were perhaps not complete, and so they took their information from checking account deposits and checks, all of the various things as I understand it. Mr. Player (an accountant) is here, and he again did that, and as a result, the 5 and the 8 percent were included in gross deposits and thus were a portion of the figures which were part of the corporate income tax picture. I mention that only for that purpose, but not to indicate in any way that somehow they had approached a parity of any sort. I didn't intend to do that, I hope I didn't leave that misimpression. (Emphasis supplied.)
8
Thus Block's attorney informed the court that corporate income taxes had been paid on the excise tax receipts and that the corporate income tax had reduced the amount of excise tax "very modestly." Defendant's attorney followed the colloquy with a general plea for leniency, stating that Block was a fine human being, was a supporter of law enforcement and had done a great deal for the community. The prosecutor did not comment on the general plea for leniency but did take issue with the statement that the corporation had paid income tax on the excise tax receipts.
9
Your Honor, there was one matter that was stated subsequent to my last speaking about the corporate income tax returns and their payment. The records of the IRS reflect that the corporate income tax returns for the years 1972 through 1975 showed losses in all of those years. So, no corporate taxes were, in fact, paid. And then no corporate returns have been filed for the years 1976 through 1979. So, this idea that the federal income taxes were paid in some way and the excise taxes were mixed up therein just isn't so since no corporate taxes were paid for the years in question because every year there was a loss reflected on the returns filed.
10
Until those statements, no mention of the failure to file corporate income tax returns or the failure to pay corporate income taxes had been made either at the sentence hearing or in the PSI. Block contended that the prosecutor's statements were inaccurate. He stated that corporate income tax returns for the years 1976 through 1979 had been filed and had been filed in a timely fashion. The district court made clear that the sentence to be imposed would be influenced by whether the corporate income tax returns had in fact been filed.
11
Gentlemen, I think I will be candid with you. It would make a difference to me in the sentence I might impose as to whether or not those tax returns were filed, and I think that is a matter we should be able to find out for sure what the facts are on that, and I believe the appropriate thing to do is to defer imposition of sentence pending our obtaining further information on that question.
12
The court scheduled a new sentence hearing and instructed the probation office to ascertain whether the corporate income tax returns had been filed.
13
At the second sentence hearing, an amendment to the PSI was admitted into evidence over Block's objection. The report indicated that the corporate income tax returns had been filed for the years 1976 through 1979 but that the returns had been filed in February 1980 and were therefore not timely. Further, because the returns showed losses for each year, Block did not actually pay any corporate income tax. Counsel for defendant admitted that the information was true. Thus, contrary to the Government's assertions, the returns had been filed. However, contrary to the assertions of defendant and his counsel, no corporate income taxes had been paid and no corporate income tax returns had been timely filed. Block objected to the report and argued that by raising the issue of the corporate income tax returns the Government had taken a position on the sentence in violation of the plea agreement. Defendant moved (1) for recusal of the trial judge; (2) to have the record sealed; (3) to have a new sentencing judge appointed; (4) to have the original PSI reinstated without the addendum concerning the corporate income tax returns; and (5) to have the plea agreement specifically enforced. The trial judge denied all of the motions and imposed a sentence of six months' incarceration and two years' probation.
14
A guilty plea predicated upon a promise or agreement by the Government normally must be fulfilled. United States v. Shanahan, 574 F.2d 1228 (5th Cir. 1978); United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977). Where the Government fails to abide by the terms of a plea agreement, a court has the authority to order specific performance of the agreement. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1972); Petition of Geisser, 554 F.2d 698, 706 (5th Cir. 1977). We turn now to determine whether the Government violated its promise not to take a position on the sentence by informing the court of defendant's failure to file corporate income tax returns.
15
A number of cases have concluded that an agreement not to take a position on the sentence or an agreement to stand mute at the sentence hearing prohibits the Government from attempting to influence the sentencing judge. In United States v. Avery, 589 F.2d 906 (5th Cir. 1979), the Government agreed to make no recommendation and stand mute at the sentence hearing. Despite the agreement, the prosecutor and the government's investigating agent provided the probation officer with disparaging information about the defendant that later appeared in the PSI. The prosecutor and investigating agent stated that:
16
(the Defendant) was not simply an innocent girl that was wrongly influenced by her boyfriend ... but rather a smart, manipulative woman that's been involved in numerous past illegal activities ... (The Defendant is) presently a fugitive from Massachusetts, a chronic liar and ex-drug addict .... (T)he Defendant was not a novice in terms of criminal involvement;
17
Id. at 907. The Court concluded that a promise to stand mute and make no recommendation "means at the least that the prosecutor will say nothing to the judge that would influence the sentencing decision." Id. at 908. Had the statements in the PSI been made at the sentence hearing, the Court acknowledged that the agreement to stand mute would have been violated. The case was remanded, however, for a determination as to whether the promise to stand mute barred the Government from providing the probation officer with detrimental information concerning the defendant.4
18
In United States v. Crusco, 536 F.2d 21 (3d Cir. 1976), the Government agreed not to take a position as to the sentence in return for the defendant's pleading guilty to one count of a drug related offense. At the sentence hearing, counsel for the defendant made a "paradigmatic argument for leniency in sentence," citing as grounds for a reduced sentence the defendant's family situation, his integrity and honor and the fact that he was not a "heavy weight ... in a position to deal in large quantities of drugs." Id. at 25. The prosecutor challenged the statements by noting that the defendant was involved in organized crime and was a danger to the community. The Third Circuit determined that a promise not to take a position precluded the Government from attempting to influence the severity of the sentence. By responding to the defendant's "hyperbole" with information already known to the court, the court concluded that the prosecutor had in fact attempted to influence the severity of the sentence. "Only a stubbornly literal mind would refuse to regard the Government's commentary as communicating a position on sentencing." Id. at 26. The case was remanded with instructions to permit the defendant to withdraw the guilty plea.5
19
Avery and Crusco both affirm that an agreement to stand mute or to take no position on the sentence restricts the Government's right to make certain types of statements to the court. However, neither case stands for the broad proposition that by making such agreements the Government forfeits all right to participate in either the presentence investigation or the sentence hearing. Instead the cases simply hold that an agreement to stand mute or take no position prohibits the Government from attempting to influence the sentence by presenting the court with conjecture, opinion, or disparaging information already in the court's possession. Efforts by the Government to provide relevant factual information or to correct misstatements are not tantamount to taking a position on the sentence and will not violate the plea agreement. See United States v. Johnson, 582 F.2d 335 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 732, 58 L.Ed.2d 711 (1978) (agreement not to make a recommendation as to the sentence not violated when Government corrected defendant's misstatements concerning availability of psychiatric care); United States v. Garcia, 544 F.2d 681 (3d Cir. 1976) (agreement to take no position on the sentence not violated where Government provided factual information in response to a question from the court).
20
A prosecutor has a duty to insure that the court has complete and accurate information concerning the defendant, thereby enabling the court to impose an appropriate sentence.6 Thus if an attorney for the Government is aware that the court lacks certain relevant factual information or that the court is laboring under mistaken premises, the attorney, as a prosecutor and officer of the court, see Smith v. United States, 375 F.2d 243, 247 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), has the duty to bring the correct state of affairs to the attention of the court.7 Quite aside from that duty, a prosecutor, if permitted by the sentencing judge, may recommend a particular sentence based upon the facts before the court.8 As part of a plea agreement, the Government is free to negotiate away any right it may have to recommend a sentence.9 However, the Government does not have a right to make an agreement to stand mute in the face of factual inaccuracies or to withhold relevant factual information from the court. Such an agreement not only violates a prosecutor's duty to the court but would result in sentences based upon incomplete facts or factual inaccuracies, a notion that is simply abhorrent to our legal system.10
21
We recognize that plea bargaining, for better or worse, is an integral and indispensable part of our legal system. However, we are equally cognizant that there are limits to what the Government can promise in return for a guilty plea. The practice of agreeing to stand mute in the face of misstatements or of agreeing to withhold relevant factual information from the court exceeds those limits. We condemn such a practice and now place the Government on notice that under no circumstances will such an agreement be tolerated by this Court.
22
Turning to the facts of the instant case, the Government agreed not to take a position on the sentence. As the previous discussion indicates, the agreement does not normally bar the Government either from providing the court with relevant factual information or from correcting misstatements. Further, Block admits on brief that the agreement simply prohibits the Government from taking its otherwise normal adversary position at sentencing, but does not prevent the Government from correcting false statements made by defendant or defendant's counsel. At the sentence hearing, Block's attorney was asked by the sentencing judge whether the excise tax receipts had been included in the corporation's gross income and corporate income taxes paid on the amount. After receiving an affirmative response, the district court judge asked how much the corporate income taxes reduced the excise tax. Counsel for defendant informed the court that the income tax reduced the excise tax "very modestly." Subsequently, defendant stated that corporate income tax returns had been filed and that the returns were timely. The truth, however, was that the corporation never reported taxable income and never paid any corporate income tax. Thus corporate income taxes did not reduce the amount of the excise tax even "modestly." Moreover, contrary to defendant's testimony, the returns were not filed in a timely fashion. The corporate returns for the years 1976 through 1979 were not filed until February 1980. By informing the court that the returns had not been filed and that no taxes had been paid, the Government was simply correcting the misstatements and not taking a position on the sentence. Even were we to agree with defendant's curious assertion that no misstatement had occurred,11 the Government would still have been obligated to disclose defendant's failure to file the returns in order to enable the court to determine an appropriate sentence and would not have violated the plea agreement by doing so.
23
Defendant argues that since the misstatement involved an inconsequential fact the Government's response was not justified. Our reading of the record demonstrates that the Government's statements were nothing more than a cogent rebuttal of the contention that corporate income taxes had been paid, thereby reducing the excise tax receipts. The Government did not utter invectives or give opinions. The prosecutor simply made clear that corporate income taxes had not been paid. Thus we conclude that the statements were not excessive or unjustified. Further, we are unable to agree with the assessment that the defendant's misstatements were inconsequential. The misstatements indicated that Block was less culpable for failing to pay the excise tax because he had been including the excise tax receipts in gross income and paying federal income taxes on the amount. The Government had the right to dispel this misimpression.
24
Because the Government did not violate the agreement not to take a position on the sentence when it corrected factual misstatements concerning defendant's payment of corporate income taxes, the decision of the lower court is in all respects
25
AFFIRMED.
*
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 October 14, 1980
1
26 U.S.C.A. § 7203 states:
Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015 or section 6016), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.
2
Sections 4261 and 4271 of the Internal Revenue Code of 1954 required companies engaged in the transportation of people and property to pay a federal excise tax. Because Planes, Incorporated operated a nationwide charter service, it had to pay the excise tax. In addition to the excise tax, Section 11 of the Internal Revenue Code of 1954 required corporations to pay a tax on all taxable income. Thus, Planes, Incorporated had an obligation to file both federal excise tax and federal income tax returns
3
The precise terms of the plea agreement as stated by the Government at the sentence hearing were:
In return for the defendant (Block) pleading guilty to Counts 22, 23 and 24 of the indictment against him the Government agrees that it will recommend for dismissal to this Court the other nine counts of the indictment.
Further, the Government agrees that it will take no position as to the sentence to be imposed and leave that to your Honor's discretion with the understanding that we can make our files and our reports and whatnot available to the Probation Department for purposes of their investigation.
The Government also acknowledged that it would not appeal the district court's dismissal of the first twelve counts. However, the parties have all agreed that the decision concerning the appeal was not part of the plea agreement.
4
On remand, the district court concluded that the promise to stand mute did not prohibit the Government from providing the probation department with information on the defendant's background and character. 473 F.Supp. 980 (S.D.Fla.1980). The decision was affirmed on appeal. 621 F.2d 214 (5th Cir. 1980)
5
In a subsequent case, the Third Circuit held that an agreement to make no recommendation as to the sentence prohibits the Government from suggesting to the court a specific sentence. However, unlike an agreement not to take a position, the Government retained the right to influence the severity of the sentence. United States v. Miller, 565 F.2d 1273 (3d Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978). We express no position on this distinction
6
For example, the ABA Standards for Criminal Justice § 3-6.2 (1980) states:
(a) The prosecutor should assist the court in basing its sentence on complete and accurate information for use in the presentence report. The prosecutor should disclose to the court any information in the prosecutor's files relevant to the sentence. If incompleteness or inaccurateness in the presentence report comes to the prosecutor's attention, the prosecutor should take steps to present the complete and correct information to the court and to defense counsel.
(b) The prosecutor should disclose to the defense and to the court at or prior to the sentencing proceeding all information in the prosecutor's files which is relevant to the sentencing issue.
The Comment to the section provides a poignant explanation of the prosecutor's important role at sentencing.
One of the most important contributions the prosecutor can make in the sentencing process is to see that the information that the prosecutor has gathered for use at trial is brought to bear on the issue of sentence to the extent relevant, whether that information is favorable or unfavorable to the convicted defendant. Unless the sentencing judge directs otherwise, the prosecutor should forward relevant information to the officer responsible for preparation of the presentence report. It is also desirable that the prosecutor have access to the report, or a summary, after it is prepared in order to check on its completeness and accuracy in light of the prosecutor's information.
7
Federal courts are required to consider all information concerning a defendant's background, character and conduct when imposing a sentence. 18 U.S.C.A. § 3577. Accordingly, the prosecutor, as an officer of the court, has a duty to assist the court in effectuating this statutory requirement. Thus, any time a prosecutor is aware that the court is about to impose sentence based upon incomplete or inaccurate information, the prosecutor has the duty to inform the court of the correct or missing information
8
E. g., ABA Standards for Criminal Justice § 3-6.1 (1980) states in relevant part:
(b) Where sentence is fixed by the court without jury participation, the prosecutor should be afforded the opportunity to address the court at sentencing and to offer a sentencing recommendation. When requested by the court to furnish a sentencing recommendation, the prosecutor should have the obligation to do so.
9
E. g., ABA Standards for Criminal Justice § 14-3.1 (1980) states in relevant part:
(b) The prosecuting attorney, in reaching a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case:
(i) to make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere;
See also Santobello v. New York, supra, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.
10
Sentences based upon erroneous information violate due process. United States v. Espinoza, 481 F.2d 553, 555 (5th Cir. 1973). See also United States v. Vasquez, 638 F.2d 507 (2nd Cir. 1980) ("A sentence within the statutory maximum is reviewable if the possibility exists that it was based on ... false information.")
11
In a somewhat astonishing tour de force, defendant attempts to strengthen his argument by contending that no misstatement occurred until after the Government injected the issue of the corporate income tax returns into the sentence hearing. Block states that the absence of a misstatement can be objectively shown by the lack of confusion on the part of the court and the failure of the prosecutor to refer to the misstatement when discussing the corporate tax returns. The argument is frivolous. We simply note that a plain reading of the record affords only one interpretation: that, prior to any statements made by the Government concerning the corporate income tax returns, counsel for defendant misstated that corporate income taxes had been paid and that the taxes had modestly reduced the amount of the excise tax receipts
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION FOR RECONSIDERATION EN BANC
Appellate case name: In re David Patrick Daniel
Appellate case number: 01-16-00953-CV
Trial court: 308th District Court of Harris County
Date motion filed: April 21, 2016
Party filing motion: Relator
It is ordered that relator’s motion for reconsideration en banc is denied.
Judge’s signature: /s/ Russell Lloyd
Acting for the Court
En Banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland,
Massengale, Brown, and Lloyd.
Date: July 18, 2017
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336 S.W.3d 306 (2010)
LaSALLE PIPELINE, LP, Appellant,
v.
DONNELL LANDS, L.P., Appellee.
No. 04-10-00272-CV.
Court of Appeals of Texas, San Antonio.
December 15, 2010.
Rehearing Overruled February 9, 2011.
*309 Thomas A. Zabel, Zabel Freeman, LLP, Houston, TX, for Appellant.
Nissa M. Dunn, Law Office of Nissa Dunn, P.C., San Antonio, TX, Corbin Snow Sr., Law Office of Corbin Snow, Sr., Alamo Heights, TX, for Appellee.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
OPINION
Opinion by: KAREN ANGELINI, Justice.
This is an appeal from a judgment awarding damages in a condemnation case. The appellant, LaSalle Pipeline LP, filed an eminent domain action to acquire temporary workspace easements and permanent right-of-way easements on two tracts of land in McMullen County, Texas. The tracts are owned by Donnell Lands L.P., a family limited partnership and the appellee in this case. Special commissioners assessed damages against LaSalle in the amount of $226,055.00, and LaSalle deposited this amount into the registry of the court. Donnell Lands objected to the commissioners' damage award. As a result, the issue of damages was tried to a jury.
The jury found Donnell Lands was entitled to damages in the total amount of $658,689.00. This amount included $19,206.00 for the temporary workspace easements, $34,533.00 for the permanent easements, and $604,950.00 for the diminution in value to the remainder of the tracts. The trial court denied LaSalle's motion to disregard the jury's findings and for judgment notwithstanding the verdict, and rendered judgment on the verdict. Because Donnell Lands had withdrawn the commissioner's award from the registry of the court, the judgment credited the total damage award in the amount of $226,055.00, and ordered LaSalle to pay Donnell Lands the balance of $432,634.00. LaSalle appealed the judgment.
LaSalle's main complaint on appeal is that the damages awarded are not supported by legally or factually sufficient evidence. Specifically, LaSalle complains of the $19,206.00 awarded for the temporary workspace easements, and the $604,950.00 awarded for the diminution in value to the remainder. LaSalle does not complain about the $34,533.00 awarded for the permanent easements. LaSalle also argues the trial court erred in overruling its challenges for cause as to two venire members.
We conclude the evidence is legally and factually sufficient to support some, but not all, of the jury's damage award for the temporary workspace easements. We conclude the evidence is legally and factually sufficient to support the jury's damage award for the diminution in value to the remainder. We also conclude the trial court did not err in overruling LaSalle's *310 challenges for cause. Accordingly, we modify the judgment to reduce the damages awarded for the temporary workspace easements, and affirm the judgment as modified.
THE TRIAL EVIDENCE
The trial evidence showed the pipeline at issue in this case is a natural gas pipeline. The pipeline is about sixteen inches in diameter and spans about 52 miles in all. Most, but not all, of the pipeline is underground. By the time of trial, the pipeline had already been installed. The pipeline crosses two tracts of land owned by Donnell Lands. The first tract is comprised of approximately 8,034 acres. As to the first tract, LaSalle acquired 15.95 acres of permanent easement, which extends about 4.4 miles. The second tract is comprised of about 46 acres. As to the second tract, LaSalle acquired .97 acres of permanent easement, which extends about 1,400 feet. Both tracts are used for recreation and agriculture.
Each party called two witnesses at trial. Donnell Lands called Philip McCormick, a real estate appraiser; and James Donnell Jr. LaSalle called Mike Freeman, the employee responsible for acquiring pipeline easements; and David Bethel, a real estate appraiser. Both parties offered exhibits, including documents and photographs, which were admitted into evidence.
McCormick testified he held an M.A.I. designation from the Appraisal Institute, which is the highest designation that can be achieved in the appraisal business. McCormick testified he had previously done appraisal work in McMullen County and other rural counties in Texas, and specialized in appraising farm and ranch land. McCormick described the appraisal business as "interpretive," "an art more than a science." McCormick explained that "the market itself is not [] black and whiteit's not accounting." He then stated, the appraisal business "has to do with interpreting what buyers and sellers are doing in the market place."
McCormick testified that he estimated the damages to the remainder of the two tracts owned by Donnell Lands. McCormick testified that, in his opinion, the existence of the pipeline and the permanent easements diminished the market value of the tracts. He based this opinion on comparable sales data from McMullen and Webb Counties. McCormick first looked at three comparable sales in McMullen County. The first sale was 2,283.9 acres at $1,900 per acre; the second sale was 4,742.67 acres at $1,700 per acre; the third sale was 3,102 acres at $1,525 an acre. All of the sales had occurred in the three years before the pipeline in this case was installed. Sale number one had no pipelines on it; sale number two had three pipelines on it; sale number three had two pipelines on it.
In addition, McCormick testified he looked at two comparable sales in the adjoining county, Webb County. The first sale was 3,310 acres at $1,738 per acre and had no pipeline. The second sale was 4,655 acres at $1,375 per acre and had a pipeline. McCormick stated he spoke with Larry Martin, who was involved in both of the Webb County sales. According to McCormick, Martin told him that he sold the 3,310 acre tract for considerably more money because it did not have any pipeline easements on it; and that he paid less for the 4,655 acre tract because it had a major pipeline going through the middle of it. McCormick also testified that the land in Webb County had a lot of similarities to the land in McMullen County. Specifically, McCormick noted the Webb County land, like the McMullen County land, was native pasture land with similar brush and other similar characteristics. McCormick *311 also noted the Webb County land, like the McMullen County land, was used for recreational and agricultural purposes. The Webb County sales also had occurred within an appropriate time range, less than two years before the pipeline was installed in this case. McCormick then stated the comparable sales data reflected "a 20 percent diminution in value" "at least part of which in my opinion was attributable to the pipeline."
LaSalle did not file a written motion to exclude McCormick's testimony on the basis that it was unreliable; nor did LaSalle request a hearing outside the jury's presence to test the reliability of McCormick's testimony. Instead, LaSalle objected repeatedly to McCormick's expert testimony in front of the jury. Before McCormick gave his opinion about the damages to the remainder of the tracts in this case, LaSalle's counsel objected as follows: "[he][s]till lacks foundation to render opinion on damages to the remainder based on the analysis he's done." The trial court then ruled, "Sustained as to Tracts 1, 2 and, 3 [McMullen County sales]; overruled as to the Martin tracts [Webb County sales]."[1] Despite LaSalle's objections to the foundation of McCormick's expert testimony, the trial court allowed McCormick to testify about the diminution in value to the remainder of the tracts.
In estimating the diminution in value to the remainder of the tracts, McCormick testified he felt the only part of tract one that was affected by the pipeline was the north and northeastern 4,100 acres of the 8,034 acre tract, the "pastures through which this major pipeline easement is going." He stated, "I'm damaging that value 10 percent. And then on the small tract, which is the 46 acre tract ... I'm damaging that 25 percent because of the very nature of it, it's a much smaller tract." According to McCormick, Donnell Lands was entitled to total compensation in the amount of $902,255.00, which included damages for the temporary and permanent easements and the diminution in value to the remainder. McCormick also prepared a written summary of the steps he took in preparing his damages estimate for Donnell Lands. This summary, which was admitted into evidence, showed that that McCormick estimated the damage to the remainder of tract one to be $820,000.00, and the damage to the remainder of tract two to be $23,490.00. McCormick offered no testimony about the fair rental value of the temporary workspace easements.
Next, James Donnell testified that the tracts in question were worth $2,500.00 per acre before the pipeline was installed. Donnell went on to explain the ways in which the land was damaged by the pipeline and the permanent easements, including, that the pipeline cut right through the middle of the land; that LaSalle had the right to ingress and egress whenever it wanted; that LaSalle could pretty much do what it wanted with the land; that the easements could be assigned in the future to anybody; and that the easements would be a "black mark" on the deed that would be there for eternity. Donnell further testified he was familiar with what a willing buyer would consider when buying property *312 such as his in McMullen County, and that a willing buyer would consider the factors he had previously listed. Donnell also testified that he had hired McCormick to do an appraisal and he had heard his opinion of the value of the land. Donnell then stated he supported, accepted, and agreed with McCormick's opinion of the value of the land. When asked to tell the jury if the pipeline had damaged his property in a monetary way, Donnell testified, "I think it's been damaged somewhere around $900,000.00." Donnell offered no testimony about the fair rental value of the temporary workspace easements.
LaSalle then called its expert witness, Bethel. Bethel stated that he was a certified general real estate appraiser, who obtained his M.A.I. designation through the Appraisal Institute. Bethel indicated that he had appraised different types of property, including commercial, industrial, land, and residential.
Bethel opined that the existence of the pipeline did not diminish the market value of the remainder of the tracts in this case. His opinion was based on an analysis of approximately fifteen sales in McMullen County, including some of the same comparable sales used by McCormick. Bethel testified that he spoke to either a buyer or a seller in all of the McMullen County sales, and they all told him the existence or absence of a pipeline had no bearing on the sales price. Bethel testified that he also spoke to Martin, who was involved in the Webb County sales used by McCormick. However, according to Bethel, Martin indicated to him that the existence or absence of a pipeline had no effect on the sales price of either property. Bethel prepared written appraisals for the tracts in this case, which were admitted into evidence. In these written appraisals, Bethel relied on comparable sales in McMullen County.
Like McCormick, Bethel testified that the accepted appraisal methodology to value the tracts in this case was the sales comparison approach. According to Bethel, many factors go into determining whether a property was comparable to another: size, highest and best use, newer sales, and road frontage. In Bethel's opinion, the existence of the pipeline did not decrease the value of the remainder of either tract in this case. According to Bethel, before LaSalle acquired the permanent easement on tract one, the market value of the remainder was $18,043,486.00, or $2,250.00 per acre; after LaSalle acquired the permanent easement on tract one, the market value of the remainder was the same. Bethel further testified that before LaSalle acquired the permanent easement on tract two, the market value of the remainder was $658,230.00, or $2,500.00 per acre; after LaSalle acquired the permanent easement on tract two, the market value of the remainder was the same. Thus, according to Bethel, Donnell Lands was owed no compensation for damages to the remainder.
Finally, Bethel testified that the fair rental value of the temporary workspace easements was $5,984.00 for tract one, and $418.00 for tract two. Thus, according to Bethel, the total fair rental value owed to Donnell Lands for the temporary workspace easements was $6,402.00.
STANDARD OF REVIEW
In conducting a legal sufficiency review, we view the evidence in the light most favorable to the party for whom the verdict was rendered. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We look to whether the evidence presented at trial enables a reasonable and fair minded jury to render the same verdict. Id. at 827. We must "credit favorable evidence if reasonable jurors could, and disregard contrary *313 evidence unless reasonable jurors could not." Id. A legal sufficiency issue will be sustained if the record shows: "(a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact." Id. at 810 (quoting Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 362-63 (1960)). If any probative evidence supports the jury's findings, we must uphold the jury's verdict. Exxon Corp. v. Garza, 981 S.W.2d 415, 420 (Tex.App.-San Antonio 1998, pet. denied).
In conducting a factual sufficiency review, we consider all the evidence in the record and determine "if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). We are mindful that the jury, as the fact finder, is the sole judge of the credibility of the witnesses, the weight to be given to their testimony, and the weight to be given to the evidence. City of Keller, 168 S.W.3d at 819. It is also within the jury's discretion to resolve inconsistencies and conflicts in the evidence, and we must accept the jury's resolution of these inconsistencies and conflicts even if it may differ from our own. See Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex.App.-San Antonio 1997, no writ). We may not substitute our conclusions for those of the jury. If there is sufficient, competent evidence of probative force to support the jury's finding, we must uphold the jury's verdict.
FAIR RENTAL VALUE OF THE TEMPORARY WORKSPACE EASEMENTS
In its first issue, La Salle urges this court to reverse and render judgment for $5,984.00 as the fair rental value of the temporary workspace easements, which gave LaSalle the right to temporarily use part of the land for the purpose of constructing the pipeline. LaSalle argues that the jury's award of $19,206.00 for the temporary workspace easements is not supported by the evidence, and that the only competent evidence of fair market value attributable to the temporary workspace easements was $5,984.00. Donnell Lands counters that the testimony of McCormick and Donnell amply supports the jury's finding, and cites us to parts of the record that purportedly illustrate this point. Alternatively, Donnell Lands argues that even if the testimony of McCormick and Donnell does not support the jury's finding, the testimony of LaSalle's expert, Bethel, supports the finding. Bethel testified that the fair rental value of the temporary workspace easements was $5,984.00 for the larger tract and $418.00 for the smaller tract. Thus, Donnell Lands argues the evidence, at a minimum, supports a finding of $6,402.00.
The ordinary method of calculating damages for a temporary workspace easement is the fair rental value of the property. Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 444 (Tex.App.-Texarkana 2006, no pet.); Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint Venture, 50 S.W.3d 531, 545 (Tex.App.-El Paso 2001, no pet.). When a party does not object to or challenge the measure of damages the jury was instructed to use, legal sufficiency review of the damages awarded is measured by the question and the instruction given. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. *314 2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex.2000).
Here, the jury was instructed that it was to calculate the temporary workspace easement damages by determining the fair rental value of the area within the temporary workspace easements. Donnell Lands made no objection to this measure of damage instruction. However, neither McCormick, nor Donnell testified to the fair rental value of the property. Instead, McCormick testified about the inconvenience caused by the temporary workspace easements and the surface damage caused by the construction of the pipeline. In fact, during cross-examination McCormick acknowledged that he did not consider fair rental value in estimating temporary workspace easement damages. Donnell also testified about how the construction and the temporary workspace easements interfered with the cattle on the land. Thus, the only evidence of the rental value of the property was provided by Bethel, who testified that the fair rental value of the temporary workspace easements for both tracts was $6,402.00. Viewing the evidence in the light most favorable to the jury's verdict, the evidence is legally insufficient to support the jury's finding of temporary workspace easement damages in the amount of $19,206.00.
Donnell Lands cites A.G.E., Inc. v. Buford, 105 S.W.3d 667, 677 (Tex.App.-Austin 2003, pet. denied), for the proposition that Donnell's testimony supports the temporary workspace damage award. However, A.G.E. is distinguishable from the present case because there the landowner actually provided some testimony about the fair rental value of the land. Id. at 676. Here, although McCormick and Donnell provided some testimony about temporary workspace easement damages, they provided no evidence of the fair rental value of the property. The only witness to testify about the fair rental value of the property was Bethel. Thus, the evidence is only sufficient to support a finding of temporary workspace easement damages in the amount of $6,402.00.
DIMINUTION IN VALUE TO THE REMAINDER
LaSalle argues the evidence is legally and factually insufficient to support the jury's finding of $604,950.00 in damages for the diminution in value to the remainder of the tracts subject to the permanent easements. LaSalle asserts there is no evidence to support the jury's finding because neither Donnell's testimony nor McCormick's testimony provided evidence of the market value of the remainder. In response, Donnell Lands argues that McCormick's and Donnell's testimony, as well as the other documents admitted into evidence, provided some evidence of the diminution in value to the remainder.
When, as here, a condemnor takes only a portion of a landowner's property, the landowner is entitled to compensation in the amount of the market value of the part taken, plus the damage to the remainder caused by the condemnation. City of Emory v. Lusk, 278 S.W.3d 77, 87 (Tex. App.-Tyler 2009, no pet.) (citing Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 627 (Tex.2002)). The measure of damages to the remainder is the difference in market value of the land immediately before and immediately after the taking. Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.2d 73, 76 (Tex.1988); see also State v. Bristol Hotel Asset Co., 293 S.W.3d 170, 172 (Tex.2009). This rule is typically referred to as the "before and after" measure of damages. Zwahr, 88 S.W.3d at 627.
Market value is the price property will bring for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying. City of *315 Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex.2001). There are several approaches to determining market value; however, courts have long favored the comparable sales approach when determining the market value of real property. Id. Under the comparable sales approach, the appraiser finds data for sales of similar property, then makes upward or downward adjustments to these sales based on differences in the subject property. Id. Comparable sales must be voluntary, and should take place at or near in time to the condemnation, occur in the vicinity of the condemned property, and involve land with similar characteristics. Id. "Comparable sales need not be in the immediate vicinity of the subject land, so long as they meet the test of similarity." Id. "But if the comparison is so attenuated that the appraiser and the fact-finder cannot make valid adjustments for these differences, a court should refuse to admit the sale as comparable." Id. at 182-83.
Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding the evidence or determining a fact in issue. TEX.R. EVID. 702. Expert testimony must be based on a reliable foundation. Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002). In determining reliability, courts evaluate the methods, analysis, and principles relied on by the expert in reaching the opinion and ensure that the opinion comports with applicable professional standards and has a reliable basis in the knowledge and experience of the discipline. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725-26 (Tex.1998). Thus, the reliability requirement focuses on the principles, research, and methodology underlying an expert's conclusions. Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex.2004). Expert testimony is unreliable if there is "too great an analytical gap between the data and the opinion proffered." Gammill, 972 S.W.2d at 726. Additionally, expert testimony is unreliable if it is no more than subjective belief or unsupported speculation. Kerr-McGee, 133 S.W.3d at 254. Opinion testimony that is conclusory or speculative is not relevant evidence because it does not tend to make the existence of a material fact more probable or less probable. Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470-71 (Tex. 2005). Such evidence is incompetent and will not support a judgment. Id. at 471.
All expert testimony, including the expert testimony of appraisal witnesses in condemnation actions, must be reliable under Rule 702. Kraft, 77 S.W.3d at 807. Appraisal expertise is a form of specialized knowledge used to assist the trier of fact to determine a fact in issue. Id. Thus, appraisal expertise is subject to Gammill's reliability requirements. Id. However, the criteria for assessing reliability varies, depending on the nature of the evidence itself. Gammill, 972 S.W.2d at 727. Thus, as we evaluate the reliability of McCormick's testimony in this case, we take into consideration the nature of appraisal evidence. As the Texas Supreme Court has recognized, all appraisal opinion is at best something of a speculation, and the question of market value is peculiarly one for the fact finding body. Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151, 156 (1950).
LaSalle argues Donnell's expert testimony constituted no evidence of damage to the remainder because it was based on a flawed methodology, and therefore, was unreliable. See City of San Antonio v. Pollock, 284 S.W.3d 809, 816-17 (Tex.2009) ("When a scientific *316 opinion is not conclusory but the basis offered for it is unreliable, a party who objects may complain that the evidence is legally insufficient to support the judgment."). In attacking the reliability of McCormick's testimony, LaSalle contends McCormick's methodology was flawed because he failed to first consider comparable sales in McMullen County before considering sales outside of the county. In response, Donnell Lands points out that McCormick essentially used the same methodology as LaSalle's expert, the comparable sales approach. Donnell Lands also points out that under standard appraisal methodology there is no requirement that an appraiser first consider sales in the subject property's county before considering sales outside of the subject property's county. We agree with Donnell Lands on this issue.
First, there is nothing in the record indicating that standard appraisal methodology requires an appraiser to first consider sales within the subject property's county before considering sales outside the subject property's county. Second, the record shows McCormick used comparable sales from both McMullen County and Webb County in reaching his conclusions about the effect of a pipeline easement on market value. Finally, the case law indicates there is no requirement that comparable sales be in the same county as the subject property. See Hays v. State, 342 S.W.2d 167, 172 (Tex.Civ.App.-Dallas 1960, writ ref'd n.r.e.) (holding objections that comparable sales were not in the same city limits as the subject property were invalid). "Comparable sales need not be in the immediate vicinity of the subject land, so long as they meet the test of similarity." Sharboneau, 48 S.W.3d at 182.
LaSalle also faults McCormick for failing to talk to buyers and sellers to find out if the existence or absence of a pipeline affected market value. However, the record does not establish that standard appraisal methodology requires an appraisal expert to inquire about whether the parties to a sale subjectively believed that the existence of a pipeline easement affected the price paid. During cross-examination McCormick did agree that "one of the most critical things" an appraiser can do in determining if a pipeline affected market value is to talk to the buyers and sellers involved in a comparable sale; however, McCormick did not state that standard appraisal methodology requires an appraiser to do so. McCormick further testified that he sometimes talked to buyers and sellers to investigate their reasons for arriving at a particular price. And, although Bethel testified he talked to the buyers or sellers about the comparable sales in this case, he never stated that such discussions were required under the comparable sales methodology.[2] Thus, the record does not establish that McCormick's underlying methodology was flawed in the manner in which LaSalle asserts. In addition, LaSalle cites no legal authority to support its contention that an appraisal expert must determine if the parties to comparable sales subjectively believed the existence or absence of *317 a pipeline easement affected the sales price. We conclude McCormick's testimony was based on a sufficiently reliable foundation to have been considered by the jury.
Next, LaSalle attacks the reliability of McCormick's testimony because it was based on conjecture and speculation. See Pollock, 284 S.W.3d at 818 ("[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection."). LaSalle points to the part of McCormick's testimony where he extrapolated from the comparable sales data that the existence of a pipeline results in a 20% diminution in value to the remainder property, and faults McCormick for failing to apply this 20% diminution in value to the tracts in this case. Instead, McCormick applied a 10% diminution in value to part of the larger tract, and a 25% diminution in value to the smaller tract. As to the larger tract, McCormick opined there was only a diminution in value as to the northern 4,100 acres, which were closest in proximity to the permanent easement. McCormick's opinion was that the rest of the larger tract was not diminished in value. McCormick stated he applied a 10% diminution in value to part of the tract one remainder, but did not explain why he applied this percentage. In addition, McCormick stated he applied a 25% diminution in value to the remainder of tract two, and offered a brief explanation for why he applied this percentage. According to McCormick, the damage to tract one's remainder was $820,000.00, and the damage to tract two's remainder was $23,490.00. Thus, McCormick concluded the damages for diminution in value to the remainder of both tracts totaled $843,490.00.
According to LaSalle, McCormick's failure to explain the percentages he applied amounted to an impermissible analytical gap between the data and his opinion. We disagree. Expert testimony is unreliable if there is "too great an analytical gap between the data and the opinion proffered." Gammill, 972 S.W.2d at 726. Here, however, we are not convinced there is "too great an analytical gap between the data and the opinion proffered." McCormick determined that the comparable sales data in this case showed a 20% difference between the market value of the tracts without pipelines and the market value of the tracts with pipelines. He opined that only a portion of this 20% difference was due to the existence of the pipelines. As to tract onethe 8,034 acre tractMcCormick estimated the diminution in market value was only 10%, and that only the north and northeastern 4,100 acres of the tract were in fact affected by the existence of the pipeline. And, the 10% applied by McCormick was well below the 20% decrease in value that he found to exist in the comparable sales data.
As to tract twothe 46 acre tract McCormick estimated the diminution in market value was 25%, somewhat higher than the 20% reflected in the comparable sales data. But even though McCormick applied a 25% diminution in value to tract two, he provided some explanation, stating he was doing so "because of the very nature of it, it's a much smaller tract." Moreover, even if there was a "gap" in McCormick's estimate of the damage to the remainder of tract two, we fail to see how it was harmful in this case. McCormick's total estimate of the damage to the remainder was $843,490.00, of which only $23,490.00 was attributed to tract two. The jury's finding of $604,905.00 in diminution in value to the remainder was substantially below McCormick's total damage estimate.
*318 We conclude that any "gap" between the comparable sales data and the conclusions drawn from it goes to the weight of McCormick's testimony, rather than its reliability. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 220 (Tex.2010) (concluding expert's testimony was based on a sufficiently reliable foundation, and therefore, legal sufficiency challenge was denied); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 40 (Tex.2007) (concluding complaints about analytical gaps in expert testimony went to the weight of the evidence, not its admissibility).
Generally, the jury has broad discretion to award damages within the range of evidence presented at trial. Gulf States Util., Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002); Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 49 (Tex.App.-San Antonio 2006, no pet.). The jury's findings may not be set aside because its reasoning in arriving at the amount of damages is unclear. Vela, 203 S.W.3d at 49; Potter v. GMP, L.L.C., 141 S.W.3d 698, 703 (Tex.App.-San Antonio 2004, pet. dism'd). When the trial evidence supports a range of damages awards, rather than two distinct options, an award within the range is an appropriate exercise of the jury's discretion, and the reviewing court is not permitted to speculate how the jury actually arrived at its award. Vela, 203 S.W.3d at 49; Potter, 141 S.W.3d at 704.
LaSalle urges that this case presents a situation in which the jury had only two distinct options in awarding damageseither the jury could have awarded the damages estimated by McCormick, which was $843,490.00, or it could have awarded the damages estimated by Bethel, which was zero. We disagree. The jury was entitled to set the value of the remainder at any amount between the lowest and highest values the expert witnesses put in evidence. See Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 92-93 (Tex.App.-El Paso 1995, writ denied) (holding reversal was not required when jury made damages finding below expert's damages testimony when the record included additional evidence from which the jury could determine value). The jury's finding of $604,950.00, falls within the range of the evidence presented at trial and is supported by the evidence. In addition, here the evidence included not only expert testimony, but also comparable sales data from both McMullen and Webb Counties. See Waterways on Intercoastal, Ltd. v. State, 283 S.W.3d 36, 46 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (concluding jury's valuation finding may be based on a variety of factors and conflicting evidence). The record before us shows there was ample evidence on which a rational jury could have based its finding.
LaSalle further argues the jury's finding of $604,950.00 indicates it made an impermissible leap outside of the evidence or impermissibly relied on its knowledge and experience instead of the evidence admitted at trial. In support of this argument, LaSalle cites Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.2d 73 (Tex.1988). In Callejo, the landowner's experts valued a condemned parcel at somewhere between $643,987.20 and $729,256.00 before the taking, and at zero after the taking. Id. at 74. The utility's experts valued the land at $67,082.00 before the taking, and at $33,541.00 after the taking. Id. Unlike the present case, the jury in Callejo made separate findings as to the land's pre-taking and post-taking value.[3] The jury *319 found the land's pre-taking value to be $456,161.00, and its post-taking value to be $364,928.80. Id. The trial court then determined that there was no evidence to support the jury's post-taking finding of $364,928.80, disregarded the finding, and substituted it with the highest post-taking value in evidence, $33,541.00. Id. The trial court then rendered judgment in favor of the landowner in the amount of $422,620.00, the difference between the jury's finding for pre-taking value and $33,541.00. Id. The court of appeals reversed the trial court's judgment; however, the supreme court reversed the judgment of the court of appeals and reinstated the trial court's judgment. Id. at 74-76.
In Callejo, the utility argued the jury could blend all the evidenceincluding testimony on pre-taking valuein making its finding on post-taking value. Id. at 75. The supreme court rejected this argument, holding that under the evidence presented, the trial court properly disregarded the jury's answer on post-taking value. Id. The supreme court stated, "We do agree that jurors are not bound, as a matter of law, to accept the parties' expert testimony. But, that does not authorize jurors to leap entirely outside of the evidence in answering any question submitted to them." Id. The supreme court further warned in Callejo that future condemnation cases should be submitted broadly in terms of the difference in market value of the land immediately before and immediately after the taking. Id. at 76. The supreme court concluded its opinion by stating, "Had this case been so submitted, doubtless we would have had no appeal to review." Id.
Callejo does not mandate a reversal of the judgment in this case. First, in this case, unlike in Callejo, the issue of damages to the remainder was submitted broadly. Second, this is not a situation in which the record shows the jury impermissibly blended evidence of pre-taking and post-taking values. LaSalle's evidence indicated the diminution in value to the remainder was zero; Donnell Lands's evidence indicated the diminution in value to the remainder was $843,490.00. Although the jury's finding was below McCormick's estimate, there is nothing in this record showing the jury arrived at this finding by impermissibly blending evidence or leaping outside of the evidence presented at trial.
Finally, LaSalle argues it conclusively established through Bethel's testimony that there was no diminution in value to the remainder. We disagree. In making this argument, LaSalle contends the only competent evidence on diminution in value to the remainder was provided by Bethel. The jury, however, was free to disbelieve Bethel's testimony. See Callejo, 755 S.W.2d at 75 (recognizing in a condemnation case that jurors were not bound to accept the parties' expert opinions on value). In addition, as previously discussed, McCormick provided competent evidence of the diminution in value to the remainder.
Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which the jury could not ignore, we conclude *320 the evidence is legally sufficient to support the jury's finding that the diminution in value to the remainder was $604,950.00. Moreover, after reviewing all of the evidence, we cannot say that the evidence is so weak that the jury's finding is clearly wrong and unjust. We, therefore, conclude the evidence is factually sufficient to support the jury's finding that that the diminution in value to the remainder was $604,950.00.
CHALLENGES FOR CAUSE
LaSalle argues the record shows two members of the venire were biased as a matter of law, and therefore, the trial court erred in denying its challenges for cause. LaSalle properly preserved this complaint by objecting and notifying the trial court that its peremptory strikes had to be used on these venire members, and it was unable to use those peremptory strikes on two other objectionable venire members who were ultimately seated on the jury.
Fair and impartial jurors reach a verdict based on the evidence, rather than on bias or prejudice. Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751-52 (Tex.2006). A person is disqualified to serve as a juror in a particular case if he has a bias or prejudice in favor of or against a party in the case. TEX. GOV'T CODE ANN. 62.105(4) (West 2005). Bias or prejudice is shown when a venire member's answer to a specific question establishes that he cannot be fair and impartial because his feelings are so strong in favor of or against a party, or the subject matter of the litigation. Sosa v. Cardenas, 20 S.W.3d 8, 11 (Tex.App.-San Antonio 2000, no pet.). Thus, bias or prejudice is shown when the record shows a venire member will base his verdict on his feelings, rather than on the evidence. Id.
To disqualify a potential juror for bias or prejudice as a matter of law, the record must conclusively show that the potential juror's state of mind led to the natural inference that he could not act with impartiality. Cortez v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 118 (Tex.App.-San Antonio 2004), aff'd, 159 S.W.3d 87 (Tex.2005). Thus, a venire member who unequivocally admits bias or prejudice is disqualified to serve as a juror as a matter of law. Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex.1998); Sullemon v. U.S. Fid. & Guar. Co., 734 S.W.2d 10, 14 (Tex.App.-Dallas 1987, no writ). Whether a venire member is biased or prejudiced is determined from the record as a whole. Cortez, 159 S.W.3d at 92-93. Thus, a venire member who expresses an apparent or possible bias is not necessarily disqualified if further questioning shows he can be impartial. Id. at 93.
In the present case, venire member Earlyn Tompkins indicated that because she had many pipelines on her property and some of them were not properly maintained, she would "possibly" lean in favor of the landowner, Donnell Lands, and might "start out" more in favor of the landowner. Thereafter, Tompkins said she thought she could listen to the evidence, and she might "lean a little toward the landowner, but [] would try to do (sic) the middle of the line." Later, when asked by the trial judge if she could be fair to both sides, or if one side was already ahead and the other was already behind, she answered, "I can be fair."
Next, venire member Joe Verastegui stated he had known the Donnells his entire life, was good friends with them, and had sold them feed. When asked if he could put his friendship aside and consider the case with both parties "start[ing][] out even," he said he thought he "could be fair" and he "wouldn't have a problem." *321 When asked if his business relationship with the Donnells would cause him to lean slightly in favor of Donnell Lands, he stated it "probably would a little bit," but he thought he "could be fair about it." When asked if both sides would start at the same place or if Donnell Lands would start out a little ahead of LaSalle, Verastegui added that "it would be hard," but again he "thought he could be fair." Later, when questioned by the trial judge, Verastegui indicated he would be able to put his relationship with the Donnells aside and decide the case as if "strangers" were involved.
Here, LaSalle argues Tompkins and Verastegui unequivocally stated their leanings in favor of Donnell Lands, and therefore, they were disqualified as a matter of law. We disagree. The record fails to establish Tompkins and Verastegui would base their verdict on their feelings, rather than on the evidence and the law. Although both challenged venire members expressed apparent or possible bias, further questioning showed they could be impartial. Viewed as a whole, the record fails to show that Tompkins and Verastegui were biased as a matter of law. We conclude the trial court did not err in denying LaSalle's challenges for cause.
CONCLUSION
Although the jury awarded damages in the amount of $19,206.00 for the temporary workspace easements, we conclude the evidence is sufficient to support a finding of only $6,402.00. The difference between $19,206.00 and $6,402.00 is $12,804.00. We, therefore, modify the judgment to reflect a reduction of $12,804.00 in the total damages awarded. We affirm the judgment as modified.
NOTES
[1] The parties dispute the effect of this ruling. According to LaSalle, the McMullen County comparable sales were not before the jury, and must be excluded from a sufficiency review. However, according to Donnell Lands, McCormick testified at length about these comparable sales in front of the jury, and the trial court was never asked to instruct the jury to disregard this testimony. Moreover, written summaries of the McMullen County comparable sales data were later offered by LaSalle and admitted into evidence. We agree with Donnell Lands that the McMullen County comparable sales data was before the jury and should be included in a sufficiency review.
[2] On direct examination Bethel was asked, "When you actually do a pipeline impact study what do you actually need to do to determine if a seller is selling a property for less or a buyer is offering less just because of the pipeline, what do you have to do to try to determine that?" Bethel answered, "Well, I think you'd want to compare similar properties that have pipelines and similar properties that do not have pipelines, and so you want to know as much details about all those transactions as you can. And then it's great if you can actually call a party that was involved, either purchased or sold it, and ask them,' Did the pipeline have an impact to the value of the property when it sold?'"
[3] The jury in this case answered the following question:
What do you find to be the amount of damages, if any, to the remaining portion of the property outside the boundaries of the permanent easement? []
You are instructed that the amount of the damages, if any, must be calculated by determining the difference, if any, between (a) the fair market value of the remaining 8,066 acres before May 1, 2009, considered as if LaSalle Pipeline, LP's pipeline was not on the property; and (b) the fair market value of the remaining 8066 acres after May 1, 2009, considered with LaSalle Pipeline, LP's pipeline and permanent easement on the property.
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329 F.2d 174
AMERICAN UNIVERSAL INSURANCE COMPANY, Appellant,v.Edgar S. CHAUVIN, Appellee.
No. 20902.
United States Court of Appeals Fifth Circuit.
March 12, 1964.
Rehearing Denied April 8, 1964.
Robert E. Leake, Jr., New Orleans, La., Hammett, Leake & Hammett, New Orleans, La., for appellant.
Raymond H. Kierr, New Orleans, La. (Johnny X. Allemand, Thibodeaux, La., Kierr & Gainsburgh, New Orleans, La., of counsel), for appellee.
Before BROWN, MOORE,* and GEWIN, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
1
The Erie problem, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, here is not whether significant signposts point the way to decision. Rather, it is whether the signs either exist or significantly outline a detour around the roadblock which stops Appellant's claim in its tracks.
2
It begins and ends in Louisiana this way. Under the Louisiana Workmen's Compensation Act, the compensation Insurer,1 as does the injured Employee, has a right of action against a third party tort-feasor.2 The Employer-Insurer's right of recovery rests on statutory subrogation to the rights of the injured employee. The Insurer, in effect, has a first claim on any third party recovery to the extent of "compensation actually paid."3
3
The term "compensation actually paid", though not expressly defined, is understood by all to include expenditures by the Insurer for necessary medical and hospital services. The controversy centers, not on the nature of the medical services or expenditures, but rather on the amount. This comes about because the Compensation Act prescribes a statutory maximum of $2500,4 but in effect authorizes an employer to procure at its sole cost insurance for coverage (including medical) beyond the requirements of the Act. LSA-R.S. 23:1165.
4
So the precise question presented here is whether in the distribution of the third party recovery, the insurer is entitled to reimbursement from the third party for excess medical costs, excess meaning in excess of the statutory maximum of $2500.5 In the order for distribution of the agreed compromise settlement recovery, the District Court disallowed reimbursement for excess medical.6
5
Without being swayed by equitable pleas against this somewhat unusual result, the District Judge frankly did his Erie duty on the basis of DeRoode v. Jahncke Service, La.Ct.App., 1951, 52 So.2d 736. But before discussing this case, it is well to emphasize at the outset that the only controversy presented in the District Court concerning this problem was between the Insurer and the third party defendants. The Insurer was not a plaintiff against the injured employee. Though each was contesting vigorously for priority in distribution of the fund, no claim was asserted there or here by the Insurer against the injured employee. The Insurer's position was exactly what it would have been had the third party case been tried to judgment. Perhaps more precisely, the Insurer's position was as though it alone had sued the third party defendants. The Insurer's rights against the third party derived solely from subrogation to the employee's rights, and there being no conventional (consensual) subrogation, the Insurer's claim rested entirely on §§ 1101, 1103 of the Compensation Act (notes 2, 3, supra).7
6
Without a doubt DeRoode is this very case. Moreover it is one determined by the highest writing Court thus far to speak for Louisiana. Ford Motor Co. v. Mathis, 5 Cir., 1963, 322 F.2d 267, at 269, n. 1; Smoot v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1962, 299 F.2d 525, 529, n. 9; United Serv. Life Ins. Co. v. Delaney, en banc, 5 Cir., 1964, 328 F.2d 483, at 486, 487, nn. 5-9. As the opinion reflects, there the Insurer by the appropriate standard excess medical coverage endorsement "undertook to provide, in addition to the statutory medical * * * required by the * * * Workmen's Compensation Law"8 reasonable and proper costs as the Insurer believed to be necessary. There, as here, the Insurer in the suit against the third party defendant claimed that it had become subrogated "to the extent of any payment to all rights of recovery therefor vested by law either in the employer or in any employee."9 That Court, as did the trial Court below, inescapably had to "determine what is the extent of the right to which the [Insurer] is automatically subrogated under the compensation law * * *." Its response was plain and emphatic:
7
"We think, however, that the statutory provision [LSA-R.S. 23:1101, 23:1103, notes 2, 3, supra] cannot be interpreted as including any sums in excess of those for which, under the act, the employer [or Insurer] is mandatorily liable and should not be held to include any other amounts or sums for which he may, by contract or agreement, voluntarily make himself liable. The employer [or Insurer] could, of course, pay such additional amounts and, by conventional subrogation from the employee, obtain the right to demand those amounts back from the person at fault, but it is not shown here that there has been any such conventional subrogation." 52 So.2d 736, 744.
8
The Insurer here does not minimize either the existence or the decisive nature of this holding. It recognizes that the District Court, as is this Court, was bound by it under Erie. The Insurer recognizes that it has the laboring oar in demonstrating a shift in the currents by some recognizable, objectively legal-hydrographic data transcending a mere psychoanalysis of Louisiana Courts in terms of personal changes or developments in socio-legal outlook. It undertakes to carry that burden in several ways.
9
The first effort is to stress equitable principles and particularly that of subrogation with heavy reliance upon such cases as International Paper Co. v. Arkansas & Louisiana M. Ry., La.Ct.App., 1948, 35 So.2d 769. There, the Court pointed out, the third party recovery provisions of the Compensation Act, notes 2 and 3 supra, "* * * in effect, simply invests the employer with the right to recover of the person through whose fault the employer has had to pay compensation, the amount paid on that account and amounts for which he is obligated to pay." Echoing Professor Malone's textbook, Malone, Louisiana Workmen's Compensation Law and Practice 470, 477, the Court in Geter v. Travelers Ins. Co., La.Ct.App., 1955, 79 So.2d 120, emphasized the avoidance of double recovery. "A mere reading of the Louisiana Workmen's Compensation Law, L.S.A.-R.S. 23:1101-23:1103, reveals that the statute does not contemplate a full double recovery by an injured employee in both tort and workmen's compensation." Consequently, the Court held, "[T]he victim should not be entitled to both full damages and to compensation."
10
Conceding that the Insurer's rights to participate in the third party recovery amounts simply to statutory subrogation pro tanto, Lowe v. Morgan's Louisiana & T.R. & S.S. Co., 1922, 150 La. 29, 90 So. 429, we find these principles utterly unhelpful in this problem. At the outset one thing seems quite plain. These general principles did not spring into being subsequent to 1951, the date of DeRoode, and that Court, at least authoritatively for Erie, inescapably rejected them.10
11
A more substantial argument is advanced that there has been a significant change in the underlying Louisiana principles since DeRoode. This argument, somewhat involved, and approaching juridical psychoanalysis, rests finally on an assertion that the judicial "climate" or "atmosphere" has changed since DeRoode. The Insurer, by a perfectly lawyer-like analysis, escapes any aspersions for this approach. Without going into great detail, it runs this way. Under cases such as Kinder v. Lake Charles Harbor & Terminal Dist., La.Ct.App., 1947, 31 So.2d 498, and earlier practices by employers or their insurers which sometimes compelled the injured employee to agree to reimburse such excess medical, Williams v. Campbell, La.Ct. App., 1939, 185 So. 683, the Louisiana Courts frequently referred to this excess medical as a "gratuity."11 The next phase of the argument is that subsequent to 1951 the Louisiana Courts have definitely established that the injured employee has legally enforceable rights against the insurer for the recovery of excess medical. In Cummings v. Albert, La.Ct.App., 1956, 86 So.2d 727, the Court squarely held that an employee had such a legal right.12 It based its decision on the principle of a third party beneficiary contract — there described in the engaging terms of the civil law as a stipulation pour autrui — a result indeed not surprising in view of the plain language of LSA-R.S. 23:1162, note 1, supra. Some consider that this was carried further in Miller v. Continental Casualty Co., La.Ct.App., 1962, 146 So.2d 842, grant of cert. withdrawn, 1963, 244 La. 649, 153 So.2d 875, since that involved the unusual provision of the Louisiana Compensation Act which makes prime contractors liable for injuries to employees of subcontractors. See LSA-R.S. 23:1061. There an injured employee of a subcontractor had exhausted the statutory maximum medical benefits provided by his employer's compensation insurance. Nevertheless, he was permitted to recover excess medical from the compensation insurer of the prime contractor.
12
Without a doubt, both Cummings and Miller are strong cases in the sense that a gratuity would hardly be legally enforceable. It may well be that the Courts of Louisiana will recognize this either by a change of climate, of atmosphere, or, more forthrightly, by a deliberate choice which those Courts are free to make (and we are not). These Courts may someday conclude that there is really little to distinguish statutory maximum medical from excess medical either in terms of cost, benefit, or legal enforceability, and consequently the general principles of subrogation recognized in the Compensation Act should entitle the Insurer to a priority for both. Nothing we here do or say is intended as even a gentle reverse-Erie breeze to the contrary. So much domestic Louisiana policy is wrapped up in the unique manner it cares for injured workmen, see, e. g., Kent v. Shell Oil Company, 5 Cir., 1961, 286 F.2d 746, 750-751, 1961 AMC 1671, that we should not add to the problem by gratuitous comments assaying the arguments now made as they might register on the mind of the Louisiana Courts.
13
But this is not enough. Although we recognize that Louisiana may soon be persuaded by the force of the arguments based upon Cummings and Miller and their new look at excess medical, the signs are not plain enough either by their legend or direction to allow us to consider DeRoode as never having been written. That leaves, of course, the suggestion that we should abstain to permit determination of this question at this time between these parties and in this controversy by the Louisiana Courts. When to abstain and how we are to go about it is certainly no easy matter as our recent opinions have revealed. United Serv. Life Ins. Co. v. Delaney, en banc, 5 Cir., 1964, 328 F.2d 483, see former opinion, 5 Cir., 1962, 308 F.2d 484. We hardly think this is the case. Only a few factors need be briefly mentioned. The first is, of course, the Insurer, aware as it must have been of DeRoode as a lion in the streets, Yorkshire Indemnity Co. of New York v. Roosth & Genecov Prod. Co., 5 Cir., 1958, 252 F.2d 650, 655, chose the federal forum in which to litigate this small tail end of a multi-party, many-cornered Donnybrook. Of course the agreed settlement compromised litigation then pending in the Federal Court. But the Insurer was hardly helpless since the statute expressly provides that "[n]o compromise with such third person by either the employer or the injured employee * * * shall be binding upon or affect the rights of the other unless assented to by him," LSA-R.S. 23:1103, note 3, supra. Until the Insurer gave its assent to the payment of the sums either direct to the parties or into the registry, it is safe to assume that the third party defendants would hardly have settled the claims. Indeed, the record affirmatively reflects that the Insurer knew of and approved the settlement. The simple fact is that the Insurer fails to demonstrate that it lacked sufficient control over its own part of this litigation to work out suitable arrangements by which it could institute in the State Courts of Louisiana an appropriate declaratory judgment proceeding (see LSA-C.C.P. arts. 1871-1883) to determine the relative rights to participate in the disputed portion of the fund representing the excess medical. No permission from the Federal District Court was needed for this. Consequently, the failure of the lower Court to grant the Insurer's motion for stay pending the filing and determination of a Louisiana proceeding seems of little significance.
14
We think, therefore, under the circumstances of this case the trial Court was entitled to accept DeRoode at its face value thereby leaving to some future date, time and case the Louisiana decision of Louisiana policy and Louisiana law whether the Insurer's subrogation rights against the third party do or do not include excess medical.13
15
Affirmed.
Notes:
*
Of the Second Circuit, sitting by designation
1
The Insurer succeeds to, and has, all of the rights of the Employer. LSA-R.S. 23:1162:
"No policy of insurance against liability [under the Compensation Act] shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments * * * that may be awarded * * *. This agreement shall be construed to be a direct obligation by the insurer to the person entitled to compensation, enforceable in his name. * * *.
"The insurer shall be subrogated to all rights and actions which the employer is entitled to under this * * * [Act]."
2
LSA-R.S. 23:1101: "When an injury for which compensation is payable * * * has been sustained under circumstances creating in some [third] person * * * a legal liability to pay damages in respect thereto, the injured employee * * * may claim compensation * * * and * * * may obtain damages from * * * such third person to recover damages for the injury
"Any employer having paid or having become obligated to pay compensation * * * may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent."
3
LSA-R.S. 23:1103: "In the event that the employer or the employee * * * becomes party plaintiff in a suit against a third person * * * and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee * * *; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee * * *, and upon payment thereof to the employee * * * the liability of the employer for compensation shall cease for such part of the compensation due * * * and * * * satisfied by such payment
"No compromise with such third person by either the employer or the injured employee * * * shall be binding upon or affect the rights of the others unless assented to by him."
4
LSA-R.S. 23:1203: "The employer shall in every case * * * furnish reasonable medical, surgical, and hospital services and medicines * * * not to exceed Twenty-five Hundred Dollars in value, unless the employee refuses to allow them to be furnished by the employer." As amended Acts 1952, No. 322, § 1; Acts 1956, No. 282, § 1 (prior to 1952 the statutory maximum was $500)
5
The compensation Insurer's claim was as follows:
(1) Weekly compensation benefits $9,240.00
(2) Medical: (a) Statutory maximum 2,500.00
(b) Excess medical 8,417.21
__________
$20,157.21
==========
6
Compromise settlement payment by third parties $77,458.50
Reimbursement allowed to compensation insurer
Item 1. Compensation benefits $9,240.00
Item 2(a) Statutory medical 2,500.00 11,740.00
____________ __________
Balance for injured employee $65,718.50
==========
7
The Insurer, in C.A. 8713 and 9089, sued the third parties to recover the amounts paid or obligated to be paid to Chauvin as a result of his injury. At about the same time Employee Chauvin in C.A. 9091 sued all of the third parties sued by Insurer. The three cases were consolidated for trial. On the eve of trial, the claims for damages of Employee Chauvin (including those of the Insurer) were compromised for $77,458.50 by a settlement approved by all. It was at this point that the narrow issue before us was posed. Insurer, in C.A. 8713 and 9089, had prayed for judgment for the total medical expenses, statutory and excess, which it had paid. The employee moved to dismiss the claims of Insurer for excess medical and alternatively for summary judgment adjudicating that as a matter of law, Insurer had no right to reimbursement of excess medical. The motion of employee for summary judgment was granted. The amount in dispute ($8,417.21) was deposited in the registry pending determination of this appeal
8
52 So.2d 736, at 738
9
Ibid
10
Strictly speaking, the policy against so-called double recovery is not clearly recognized. Indeed, in DeRoode the Court, on doctrines analogous to those now referred to as the collateral source rule, see Tipton v. Socony Mobil Oil Co., 5 Cir., 1963, 315 F.2d 660, 662 (dissenting opinion), reversed per curiam, 1963, 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4, recognized that the tort-feasor was not entitled to a deduction from the damages awarded against it for the medical payments made by others who had no right of recovery therefor. See also Williams v. Campbell, La.Ct.App., 1939, 185 So. 683, 687-688; Fullilove v. United States Cas. Co., La.Ct.App., 1961, 129 So.2d 816, 832
11
This descriptive was repeated as late as 1960 in Pope v. Coney, La.Ct.App., 1960, 119 So.2d 136, at 140
12
The principle was really foreshadowed by Smith v. W. Horace Williams Co., La. Ct.App., 1956, 84 So.2d 223 although the employee did not recover under the peculiar facts of that case
13
Consistent with accepted principles of res judicata and full faith and credit, there may yet be a limited phase of this case open for decision by the Louisiana Courts. The trial Court expressly relied on DeRoode and its decision, which we approve, necessarily adopted that part of DeRoode which seems to recognize the possibility of an obligation on the part of the employeevis-a-vis the insurer. In the decretal portion of the opinion, 52 So.2d 736, 746, the Court provided that the Insurer-"intervenor shall also be paid and receive out of said judgment medical expenses in the sum of $500.00 [statutory maximum]." But it then significantly added: "for the remainder of the amount spent for medical and related expenses intervenor [insurer] must look directly to the plaintiff." As discussed earlier at note 7, supra, the contending parties below and here are the injured employee and the Insurer, but the real subject matter of this controversy was the Insurer's right, as subrogee of the employee, to moneys paid by the third party defendants. In those funds the Insurer, whether as direct plaintiff or intervenor, stood only as subrogee in the shoes of the injured employee. Determining rights to participate in, and the requirements for apportionment of, a fund, the District Court did not undertake to adjudicate the direct liability of the injured employee to the Insurer. Except to recognize that this limited claim has not been adjudicated, we intimate no opinion as to its merits.
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41 So.3d 904 (2010)
THOMAS
v.
NICKEL PLATE PROPERTIES, INC.
No. 2D09-4641.
District Court of Appeal of Florida, Second District.
June 9, 2010.
Decision Without Published Opinion Affirmed.
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703 S.E.2d 622 (2010)
SCROGGINS
v.
The STATE.
No. S10A1073.
Supreme Court of Georgia.
November 8, 2010.
Reconsideration Denied December 14, 2010.
H. Maddox Kilgore, Marietta, for appellant.
Garry T. Moss, District Attorney, Lawton W. Scott, J. Clifford Head, Assistant District Attorneys, for appellee.
HINES, Justice.
This Court granted a writ of certiorari to the Court of Appeals to review that Court's *623 dismissal of Samuel Scroggins's application for discretionary appeal. For the reasons that follow, we reverse, and remand the case to the Court of Appeals.
In 2001, Scroggins was convicted of theft by receiving, forgery, and financial transaction card fraud, and sentenced to probation. On August 5, 2008, his probation was revoked. On July 20, 2009, he moved in the trial court for an out-of-time discretionary appeal, and the trial court granted that motion on August 13, 2009. Scroggins's subsequent application for discretionary appeal was dismissed by the Court of Appeals as untimely from the probation revocation; that Court stated in its order that the trial court did not have the authority to grant an out-of-time discretionary appeal. Upon application to this Court for a writ of certiorari, we granted the writ, directing the parties to address whether a trial court has the authority to grant an out-of-time discretionary appeal.
After the appeal was docketed in this Court, the State moved for this Court to dismiss it as improvidently granted, noting that on September 2, 2008, Scroggins had filed a notice of appeal, stating that appeal was taken from the August 5, 2008 order revoking his probation. No action was taken on this notice of appeal by the trial court clerk, and no direct appeal was ever docketed in the Court of Appeals based upon the September 2, 2008 notice of appeal. The notice of appeal was never addressed by either the Court of Appeals or the trial court.[1]
An order revoking probation may only be appealed by the discretionary procedures set forth in OCGA § 5-6-35. See OCGA § 5-6-35(a)(5); State v. Wilbanks, 215 Ga.App. 223, 450 S.E.2d 293 (1994). Nonetheless, on September 2, 2008, Scroggins chose to pursue an appellate avenue that was closed to him, and filed the notice of appeal. Even though this course was ill-chosen, the notice of appeal acted as supersedeas and deprived the trial court "of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect." Upton v. Jones, 280 Ga. 895, 896(1), 635 S.E.2d 112 (2006) (citations and punctuation omitted). See also Chambers v. State, 262 Ga. 200, 201(1), 415 S.E.2d 643 (1992). Although the September 2, 2008 notice of appeal did not result in a transcript and record being transmitted to the Court of Appeals, and no appeal was ever docketed in that Court, for the purposes of the trial court's jurisdiction, the direct appeal initiated on September 2, 2008, remained pending.[2] Thus, the trial court did not have the authority to supplement its order revoking probation with the order purporting to grant an out-of-time discretionary appeal, which would essentially establish a second appellate avenue to review the probation revocation before the first appeal of that ruling was resolved. Upton, supra. Because of the pending first appeal, the application for discretionary appeal, and the order authorizing it, were nullities. Elrod v. State, 222 Ga.App. 704(1), 475 S.E.2d 710 (1996).
However, the State's motion to dismiss cannot be granted. "[W]hen a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed. [Cits.]" Darden v. Ravan, 232 Ga. 756, 758(1), 208 S.E.2d 846 (1974). See also Weatherbed v. *624 State, 271 Ga. 736, 738, 524 S.E.2d 452 (1999). Accordingly, the judgment of the Court of Appeals dismissing the discretionary application to appeal is reversed, and the case is remanded to that Court for proceedings consistent with this opinion.
Judgment reversed and case remanded with direction.
All the Justices concur.
NOTES
[1] In his "Motion for Out of Time Discretionary Appeal," Scroggins referred to the September 2, 2008 notice of appeal as "a nullity." The trial court's order granting an out-of-time discretionary appeal makes no mention of the September 2, 2008 notice of appeal.
[2] Scroggins asserts that the notice of appeal became a nullity on September 5, 2008, because when thirty days passed after the probation revocation order without an application for discretionary appeal being filed under OCGA § 5-6-35, the proper avenue of appeal was foreclosed and the Court of Appeals lost any jurisdiction to review the probation revocation. But, such passage of time does not result in the nullification of the notice of appeal. The notice of appeal was never withdrawn or dismissed, see OCGA § 5-6-48, and the Court of Appeals retained the power to determine its jurisdiction under the notice of appeal. See Hughes v. Sikes, 273 Ga. 804, 805, 546 S.E.2d 518 (2001); Styles v. State, 245 Ga. App. 90, 91, 537 S.E.2d 377 (2000).
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12 Ariz. App. 578 (1970)
473 P.2d 780
Frances MORROW, Appellant,
v.
TRAILMOBILE, INC., an Arizona corporation, and Pullman, Incorporated, an Arizona corporation, Appellees.
No. 1 CA-CIV 969.
Court of Appeals of Arizona, Division 1, Department B.
August 31, 1970.
Rehearing Denied October 2, 1970.
Review Denied November 17, 1970.
*579 Gorey & Ely, by Herbert L. Ely, Phoenix, for appellant.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Thomas A. McGuire, Phoenix, for appellees.
HAIRE, Judge.
By a complaint sounding in negligence, strict tort liability and breach of warranty, plaintiff, the widow of Albert Morrow, commenced a wrongful death action against the defendants, who were the manufacturers of the semi-trailer and full trailer between which Mr. Morrow was fatally injured as he was attempting to connect those vehicles. The trial court directed a verdict for the defendants at the close of plaintiff's case, and plaintiff has appealed therefrom.
The evidence when viewed in a light most favorable to the plaintiff and with all inferences drawn in her favor reveals the following facts. Albert Morrow (hereinafter, Morrow) was employed at the Serape Gin in Chandler, Arizona. Shortly before his injury, Morrow was helping driver Loren Babcock, an employee of Cromwell Transportation, Inc., unload his cargo of unginned cotton into an underground storage pit. Babcock was driving "doubles" that evening, that is, the tractor or power unit he was driving was pulling two cargo-bearing vehicles, a semi-trailer and a full trailer. The semi-trailer was connected directly to the tractor. The full trailer was attached to the back of the semi-trailer by means of a hinged drawbar or tongue on the full trailer which fit over a hook located on the back of the semi-trailer. In the process of unloading, the trailers had been disconnected from each other, and at the time of the accident Morrow was assisting in rehitching them. In order to successfully rehitch the trailers, it was necessary that the drawbar on the front of the full trailer be raised slightly above the level of the hook on the back of the semi-trailer so that an opening or "eye" in the front of the drawbar could be brought down over the hook.
The following testimony of the truck driver, Babcock, describes what next occurred:
"Q And would you tell us just what conversations you had with Mr. Morrow before you started this process of hitching up the trailers?
"A Well, it was dark, and I couldn't see, so I told him I didn't know what his name was at the time he was a redhaired boy, and I called him, `Red'.
I told him, `Let's get a board and pat under the tongue of that trailer, and if I know [knock?] it down I can always pick it up and put it back up there.'
I said also, `I'd not like to hurt somebody or kill somebody with this truck.'
He said, `Well, I have done it a year or better and nothing has ever happened.'
And I told him there was a first time for everything.
*580 * * * * * *
"Q Now, did you then start after this conversation and he said that he had done it before?
"A Well, I kind of hesitated for a few minutes or a few seconds, rather, urging him to get a board so he wouldn't have to get between those trailers, but he insisted on getting in there and hooking it up, and then he said, `Well, let's hook them up. There is another truck there sitting back there waiting to unload, and I have got to get it out, too.'
So then I went ahead, and I got in the GMC."
Babcock backed up slowly, watching for a prearranged flashlight signal from Morrow to indicate when the two trailers were sufficiently close together. After backing as far as he thought was necessary, he set his brakes, got out of the cab and looked back again, only to see that he in fact needed to back up farther. He then proceeded again slowly, but still seeing no signal from Morrow, he became worried, stopped and got out of the cab again and went back to the area between the trailers. Although an area about 18 inches in width still remained between the trailers, he found Morrow, "* * * between the wheels on the front trailer on his knees with his arms hanging down to his sides."
Plaintiff, Morrow's widow, subsequently brought this suit against the manufacturers of the trailer and semi-trailer, Trailmobile, Inc., and Pullman, Inc. (hereinafter collectively referred to as defendants). On this appeal from the directed verdict for the defendants, we will discuss separately the theories of liability urged by plaintiff.
NEGLIGENCE
In considering the question of negligence it is important to keep in mind that this case does not in any way involve questions concerning the liability of the decedent's employer or the driver of the truck or the truck driver's employer. They were not made parties to this litigation. We are only concerned with the alleged negligence of the manufacturers of the two trailers.
Although plaintiff's complaint alleged that defendants were negligent in the design, construction and manufacture of the trailers, there was no evidence or contention of negligent construction as opposed to negligent design.[1]
Therefore, in considering plaintiff's negligence claim we are only concerned with the contention that the product was negligently designed.
It is well established that the manufacturer of a product is not "* * * an insurer that his product is, from a design viewpoint, incapable of producing injury." Annot., 76 A.L.R.2d 91, 95 (1961); see also Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 247 F.2d 23 (1957); Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950); Blissenbach, a minor, v. Yanko, 90 Ohio App. 557, 107 N.E.2d 409 (1951). The manufacturer's duty is that of exercising reasonable care under the circumstances. Annot., 76 A.L.R.2d 91, 95 (1961); W. Prosser, Handbook of the Law of Torts § 96, at 665 (3d ed. 1964); Restatement (Second) of Torts §§ 395, 398 (1965).
The defendants, in urging support of the trial court's directing a verdict in their favor, seek to make much of the fact that the two agricultural flatbed[2] trailers involved herein were ordered simultaneously as a *581 unit, and that the purposes for which they were initially ordered hauling of bailed and non-bulk commodities capable of being side loaded and unloaded did not require frequent hitching and unhitching of the two trailers. While this assertion is, in its factual portion, supported by uncontradicted evidence, we fail to see that it is dispositive of the overall issue here, though it may be one of the "circumstances" with reference to which the defendants' duty to exercise reasonable care is to be determined. As we see it, the real question is this: On those occasions when these vehicles were in fact required to be unhitched and subsequently hitched back together, was a person in the position of plaintiff's decedent subjected to an unreasonable risk of harm by any failure of the defendants herein to exercise reasonable care in designing the hitching mechanism? All the evidence presented by plaintiff requires this question to be answered in the negative.
We note at the outset that the evidence was clear that in order to connect the trailers it was not necessary by virtue of their design for any person to ever stand between the two vehicles while the forward vehicle was in motion and subject himself to the risk of being crushed. The drawbar of the rear vehicle could have been held at the height required to allow it to slip over the hook on the forward vehicle in any number of mechanical ways. These included (1) a chain running from the forward part of the drawbar back to the forward part (front rack) of the full trailer; (2) a jack; and (3) a "drop arm". The plaintiff's case was replete with uncontroverted evidence that such mechanical devices were available from or through the defendants but that Babcock's employer, Cromwell Transportation, Inc., intentionally ordered the vehicles and their connective parts[3] without such devices. The following testimony was elicited upon cross-examination of Mr. Cromwell:
"Q Now, with respect to the attached drop arm or a jack attached to the tongue on a pull trailer or a full trailer, did you ever try attaching a device to the draw bar?
"A Yes, we have.
"Q Was it successful?
"A No. There were two reasons basically. Well, three. First, it adds weight. Secondly, it is either torn off. Thirdly, or more importantly, it is not adjustable, so it still wouldn't be the correct level. It will have to be a block under it or a hole dug in the ground to make it.
"Q When you ordered these trailers you knew that Trailmobile would sell or order a jack bar if you ordered it?
"A Yes, sir.
"Q You didn't want that?
"A No, sir."
It was Cromwell's further testimony that there were two jacks at the Serape Gin on the night of Morrow's death, though this was impugned to some slight degree by Babcock's testimony, before admitting he failed to actually look for a jack, that he didn't see either of them.
Assuming that the defendants in the exercise of reasonable care should have anticipated that a person would stand between the vehicles to connect them notwithstanding the easy availability of such mechanical devices which would obviate the need for so doing, we feel that all of plaintiff's evidence clearly establishes that defendants acted prudently in discharging any such assumed obligation. The evidence *582 discloses that the drawbar of the rear trailer was light enough to be held up at the requisite height by a worker using only one hand. So long as the drawbar was held in the approximate area of the hook, even if the person standing between the vehicles missed the hook he would strike the hitch plate on the semi-trailer and this would keep the vehicles from coming so close together as to crush anyone between them. (That Morrow failed to so hold the drawbar is established by uncontradicted testimony to the effect that after the accident the drawbar was resting on the semi-trailer's dock bumper located beneath both the hitching plate and the hook itself).
As a separate and more fundamental basis for determining that plaintiff failed to prove that defendants breached any duty owed to plaintiff's decedent, we think the following language from Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950) is apropos:
"If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands." (Emphasis supplied). (301 N.Y. at 472, 95 N.E.2d at 804).
Plaintiff did not allege nor prove that these trailers or their hitching devices constituted a latent defect or presented a latent danger. From all of plaintiff's evidence, twelve reasonable men could come to one conclusion only: that there was no latent defect in defendants' trailers and that any danger presented to plaintiff's decedent by reason of the plan or design of the trailers or their connective devices was open, obvious and known to him. Where such is the case, a directed verdict for a manufacturer on the question of its negligence in design is proper. Maas v. Dreher, 10 Ariz. App. 520, 460 P.2d 191 (1969); Daugherty v. Montgomery Ward, 102 Ariz. 267, 428 P.2d 419 (1967).
STRICT TORT LIABILITY
It is the law of this state that one engaged in the business of selling a product which is expected to and does reach the user or consumer without substantial change in the condition in which it is sold, is liable for the harm caused by reason of selling such a product in a defective condition unreasonably dangerous to the user or consumer or his property, irrespective of the seller's exercising all possible care in the preparation and sale of his product, and notwithstanding the lack of a contractual relationship or a direct sale between the seller and the injured party. Restatement (Second) of Torts § 402 A (1965); O.S. Stapley Company v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968); Estabrook v. J.C. Penney Company, 105 Ariz. 302, 464 P.2d 325 (1970), vacating 10 Ariz. App. 114, 456 P.2d 960 (1969); Bailey v. Montgomery Ward and Company, 6 Ariz. App. 213, 431 P.2d 108 (1967); Tucson General Hospital v. Russell, 7 Ariz. App. 193, 437 P.2d 677 (1968); Eck v. Helene Curtis Industries, Inc., 9 Ariz. App. 426, 453 P.2d 366 (1969); Caruth v. Mariani, 11 Ariz. App. 188, 463 P.2d 83 (1970), reversing on rehearing 10 Ariz. App. 277, 458 P.2d 371 (1969); Wagner v. Coronet Hotel, 10 Ariz. App. 296, 458 P.2d 390 (1969); Maas v. Dreher, supra.
However, as noted in Maas v. Dreher, 10 Ariz. App. 520, 521, 460 P.2d 191, 192 (1969), "Strict liability cannot be equated to absolute liability", and the product sold must be in a defective condition unreasonably dangerous to the user or consumer (see Restatement (Second) of Torts § 402 A, comment i (1965)). In Maas, supra, this Court held that an open and obvious condition known to the injured party could not be, under the facts established therein, an "unreasonably dangerous condition" within the meaning of Restatement (Second) of Torts § 402 A (1965) *583 and the cases upon which it was based.[4] We reach the same result herein.
It is to be emphasized that in determining that any danger created by defendants herein was under the uncontradicted evidence open, obvious and known to plaintiff's decedent, we do not reach any question as to the latter's contributory fault in this matter. The following language in Maas v. Dreher makes this clear:
"Plaintiff contends that in order for the above principles to apply, not only must the condition be open, obvious and known to plaintiff, but in addition it must be shown that plaintiff subjectively appreciated the danger involved, and that in Arizona this issue must be submitted to the jury under appropriate instructions relative to contributory negligence or assumption of risk. The subjective appreciation of danger by plaintiff might well be pertinent in establishing these affirmative defenses to the extent that such defenses are applicable in strict liability cases. However, in this case we do not reach the question of affirmative defenses. As previously stated herein, one of the elements which plaintiff must prove to establish a cause of action in strict liability is that the product was `in a defective condition unreasonably dangerous'. This is determined by an objective test, not by the particular plaintiff's subjective appreciation of danger. As stated in the Restatement (Second) of Torts Sec. 402 A, comment i at 352 (1965):
`The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' (Emphasis supplied.)
"From the foregoing it is clear that as a part of plaintiff's case plaintiff was required to show that the condition which caused her injury * * * was dangerous to an extent beyond that which would be contemplated by the ordinary consumer with ordinary knowledge common to the community. If plaintiff had established a prima facie case for liability, including a showing that the * * * [product] was dangerous to an extent beyond that which would be contemplated by the ordinary consumer, then plaintiff's subjective appreciation of the danger might have become material on the issue of assumption of risk. See O.S. Stapley Co. v. Miller, supra; Restatement (Second) of Torts Sec. 402 A, comment n at 356 (1965)." (Emphasis in original). (10 Ariz. App. at 522-523, 460 P.2d at 193-194).
All of plaintiff's proof established that any danger presented by reason of the design of defendants' trailers was open, obvious and known to plaintiff's decedent; twelve reasonable men could not have reached any other conclusion after viewing the photographs admitted into evidence and hearing the testimony of plaintiff's own witnesses on direct examination. Under such circumstances the trial court was required to direct the verdict for defendants, plaintiff having failed to prove an essential element of her strict liability claim. Maas, supra; Tucson General Hospital v. Russell, supra.
EXCLUDED EXPERT TESTIMONY
As shown by the foregoing, plaintiff's evidence was insufficient to prove either *584 of her claims and in fact negatived their existence. It is plaintiff's final contention that the trial court erred in excluding certain expert testimony offered by plaintiff.
Plaintiff proffered the testimony of a Mr. Krussman, an engineering expert, and when the trial court sustained multiple objections of defendants to the propriety of questions propounded by plaintiff's counsel, an offer of proof was made in chambers. The offer of proof which, as to Mr. Krussman, consisted of his direct examination by plaintiff's counsel,[5] indicated his opinion that the design of the hitching devices was not as safe as it could be because it lacked a device or mechanism to hold the drawbar at the level required for it to be slipped over the hook on the front trailer (the semi-trailer). Assuming, arguendo, that the trial court improperly excluded this testimony, its presence before the jury would not have allowed any different result from that which occurred.
Expert testimony that the design adopted by defendants was not the safest available does not constitute proof of negligence since a manufacturer has no legal obligation to produce a product incorporating only the ultimate in safety features, Marker v. Universal Oil Products Company, 250 F.2d 603 (10th Cir.1957); Mondshour v. General Motors Corporation, 298 F. Supp. 111 (D.C.Md. 1969); Mitchell v. Machinery Center, Inc., 297 F.2d 883 (10th Cir.1961); nor to produce a product incapable, from a design viewpoint, of causing injury, Krentz v. Union Carbide Corporation, 365 F.2d 113 (6th Cir.1966); Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343 (Mo. 1964). Further where, as here, the absence of a safety device is apparent and the danger presented thereby is open, obvious and known, the lack of a danger unknown to the decedent bars his recovery. Messina v. Clark Equipment Company, 263 F.2d 291 (2d Cir.1959); Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853 (1948); cf. Iacurci v. Lummus Company, 340 F.2d 868 (2d Cir.1965). Expert testimony in the foregoing situations that a safety device is needed is therefore insufficient to establish a prima facie case of negligence in design. Yaun v. Allis-Chalmers Mfg. Co., supra; Mitchell v. Machinery Center, Inc., supra; Iacurci v. Lummus Co., supra. To the extent, if any, that plaintiff's expert testimony pertained to the strict liability claim, we find our prior discussion regarding the disposition of that claim equally applicable thereto.
The only remaining theory of liability urged in plaintiff's complaint was based on warranty. This count has been voluntarily abandoned on appeal, and therefore we do not discuss it.
The judgment of the trial court is affirmed.
EUBANK, P.J., and JACOBSON, J., concur.
NOTES
[1] The distinction between the two is that negligent construction is carelessness in the actual putting together or building of the product, whereas negligent design involves improper planning of the product. Maynard v. Stinson Aircraft Corp., 1 Av. Cas. 698, 704 (Mich. 1937).
[2] Side panels (called "racks") were subsequently ordered from and supplied by defendants as were conveyor belts which were installed in both trailers. These alterations permitted hauling of bulk commodities.
[3] Much examination and, consequently, much cross-examination was directed at whether the rear trailer should have been a full trailer connected by its hinged drawbar to the front trailer's hook as it was or a semi-trailer resting upon the "fifth wheel" of a converter dolly. Cromwell explained its choice of the former over the latter as being based upon the facts that the trailers were constantly going over rough terrain, that "fifth wheels" were relatively unsuited therefor, if not dangerous, and that the inflexible connective device on the front of the converter dolly was likewise inappropriate for such agricultural hauling.
[4] For example, the landmark case of Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963), was quoted in Maas v. Dreher, 10 Ariz. App. 520, 522, 460 P.2d 191, 193 (1969), as follows:
"`To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the [product] in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the [product] unsafe for its intended use.' (Emphasis supplied.) (27 Cal. Rptr. at 701, 377 P.2d at 901)."
[5] Plaintiff's counsel did not call into chambers his other expert witnesses but rather indicated by avowal their qualifications and the substance of their testimony. This additional testimony was to be to the same effect as that of Mr. Krussman, i.e., the trailers and their hitching devices were unsafe by reason of the failure of the defendants to include a device or mechanism to elevate the drawbar.
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124 B.R. 63 (1990)
In re Mickel D. LESTER, Nancy J. Lester, Debtors.
Bankruptcy No. 2-89-01506.
United States Bankruptcy Court, S.D. Ohio, E.D.
November 28, 1990.
*64 Robert Storey, Columbus, Ohio, Chapter 7 Trustee.
Charles M. Caldwell, Office of the U.S. Trustee, Columbus, Ohio.
Leslie Varnado, Jr., Columbus, Ohio, for debtor Nancy J. Lester.
OPINION AND ORDER ON TRUSTEE'S OBJECTION TO CLAIM OF EXEMPTION
BARBARA J. SELLERS, Bankruptcy Judge.
This matter is before the Court on the objection of Robert Storey, the duly-appointed trustee of this Chapter 7 bankruptcy estate ("Trustee"), to a claim of exemption asserted by Nancy J. Lester ("Debtor"). The matter was heard by the Court on October 4, 1990.
The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference previously entered in this district. This is a core proceeding which this Bankruptcy Judge may hear and determine under 28 U.S.C. § 157(b)(2). The following constitute findings of fact and conclusions of law.
I. FACTUAL BACKGROUND
Nancy Lester amended her bankruptcy schedules to include as an asset an award of $6,333 resulting from the settlement of a claim against St. Ann's Hospital. The settlement related to an injury she sustained while a patient in the emergency room of the hospital. The total amount of the award was $10,000. After deductions for legal and other expenses, $6,333 remains as her share of that award. The Debtor seeks to claim as exempt $5,400 of that award.
The parties do not dispute the appropriateness of the Debtor's amendment of her schedules to reflect the $6,333 realized from the settlement. However, the Trustee objects to the Debtor's claim of exemption for $5,400 of that award. The Debtor contends, however, that the exemption is warranted by Ohio Rev.Code §§ 2329.66(A)(12)(c) or (A)(17).
II. ISSUE PRESENTED
The issue before the Court is whether any of the Debtor's settlement award may be claimed by her as exempt under the provisions of Ohio Rev.Code §§ 2329.66(A)(12) or 2329.66(A)(17).
III. DISCUSSION
A. Exemption Pursuant to Ohio Revised Code § 2329.66(A)(12)(c).
Under the authority granted to the states by 11 U.S.C. § 522(b), Ohio has "opted-out" of the specific exemption scheme provided by the Bankruptcy Code. Therefore, an Ohio bankruptcy debtor may claim property as exempt from her bankruptcy estate only if Ohio law permits such exemption from the claims of creditors. See, Ohio Rev.Code § 2329.662.
Ohio Rev.Code § 2329.66(A)(12) provides in pertinent part:
(A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment or sale to satisfy a judgment or order as follows:
* * * * * *
(12) The person's right to receive, or moneys received during the preceding twelve calendar months from any of the following:
* * * * * *
*65 (c) A payment, not to exceed five thousand dollars, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the person or an individual for whom the person is a dependent;
When an objection is raised to a debtor's claim of exemption, it is the burden of the objecting party to prove that the exemption is not properly claimed. Bankruptcy Rule 4003(c). The rule places upon the objecting party the initial burden of showing the inappropriateness of the asserted exemption. That burden is met by the introduction of evidence which rebuts the prima facie effect of the claim of exemption. Successful rebuttal then shifts the burden to the debtor to demonstrate that the exemption is proper. See, In re Hollar, 79 B.R. 294, 296 (Bankr.S.D.Ohio 1987).
Section 2329.66(A)(12)(c) of Ohio Rev.Code requires allocation to show that the payments actually are for personal bodily injury. The demands of allocation have not been the subject of much case law. However, at least one Ohio Court of Appeals has addressed the issue. With the agreement of the parties, the Court in Mike v. Rendano recognized that "the statute does not exempt payments for pain and suffering or compensation for actual pecuniary loss, including medical payments." (Aug. 5, 1985) Mahoning App. No. 84 C.A. 72, 1985 WL 7019 (unreported). This reasoning also is in accord with the federal decisions interpreting this statute. As stated by one court:
These courts have generally determined that this language allows a debtor a maximum exemption of five thousand dollars ($5,000) from the proceeds of a personal injury settlement separate from payment for pain and suffering or lost wages.
In re Young, 93 B.R. 590, 594 (Bankr.S.D. Ohio 1988). See also, In re Brooks, 12 B.R. 22, 25 (Bankr.S.D.Ohio 1981).
Because the exemption does not include amounts properly attributable either to pain and suffering or to actual pecuniary loss, those amounts must be separated from the total award. Further, pursuant to Ohio Rev.Code § 2329.66(A)(12)(d), payments which compensate for the loss of future earnings are treated as a separate exemption. See In re Carson, 82 B.R. 847, 855-856 (Bankr. S.D.Ohio 1987).
Upon consideration of the requirements and limitations of the statute and the allocated burden of proof, the Court concludes that the Debtor's claimed exemption of $5,000 must fail. The Trustee, as the objecting party, met his initial burden of demonstrating that the Debtor's claimed exemption is inappropriate by showing that the Debtor had failed to allocate the award to show that any payments were for personal bodily injury. It is not enough for the Debtor merely to claim the entire amount as exempt. Once that exemption is challenged, some showing must be made that the award is for personal bodily injury and not for pain and suffering or actual pecuniary loss. Placing this burden of production on the Debtor does not violate the requirement of Bankruptcy Rule 4003(c) because the objecting party still initially must establish that the exemption is not properly claimed. That burden is met, however, by a showing that the Debtor has failed to make the necessary allocation. This interpretation reflects the realistic assumption that only the Debtor possesses the evidence to establish proper allocation. If the payment is on account of personal bodily injury, it is exempt. But there is no presumption that an award is only for personal bodily injury.
The Debtor did not sufficiently allocate any of the components of her award. She presented medical records and some medical bills, but none of the net settlement was allocated for pain and suffering or for bodily injury. Where there is no purported allocation, further inquiry by this Court into the appropriate amounts for each component is not warranted.
B. Exemption Pursuant to Ohio Rev. Code § 2329.66(A)(12)(d).
The Debtor also claimed as exempt an amount representing some lost wages. Ohio Rev.Code § 2329.66(A)(12)(d) provides:
*66 (A) Every person who is domiciled in this state may hold property exempt . . . as follows:
(12) The person's right to receive, or monies received during the preceding twelve calendar months from any of the following:
(d) A payment in compensation for loss of future earnings of the person . . . to the extent reasonably necessary for the support of the debtor and any of his dependents.
The evidence established that the Debtor was off work because of her injury for approximately six weeks. She suffered $1,116 in lost wages during that time. While the Debtor claims this amount as exempt, Ohio Rev.Code § 2329.66(A)(12)(d), by its terms, exempts only payments for loss of future earnings. The Debtor's evidence clearly indicates that the $1,116 represents wages lost while she was recovering from the injury and not future earnings. The Debtor failed to present any evidence which would indicate that any of the award was attributable to lost future earnings. Accordingly, the Debtor is not entitled to claim any exemption under the provisions of Ohio Rev.Code § 2329.66(A)(12)(d).
C. Exemption Pursuant to Ohio Rev. Code § 2329.66(A)(17).
While the Trustee's objections to the Debtor's claimed exemption of $5,000 pursuant to Ohio Rev.Code § 2329.66(A)(12)(c) and (d) are well taken, the Debtor is entitled to claim as exempt $400 of the $6,333 settlement award under Ohio Rev.Code § 2329.66(A)(17). This section, which is Ohio's "wild-card" exemption, entitles a debtor in bankruptcy to claim as exempt an interest "not to exceed four hundred dollars, in any property." Accordingly, the Debtor is entitled to claim $400 of the $6,333 award as exempt under the provisions of Ohio Rev.Code § 2329.66(A)(17). "Any property" clearly includes property not exempt under other subsections of § 2329.66.
IV. CONCLUSIONS
Based upon the foregoing, the Court finds that the Trustee's objection to the Debtor's claim of exemption for a personal injury award is meritorious because the Debtor did not make the showing necessitated by Ohio Rev.Code § 2329.66(A)(12)(c). The Court further finds that the Debtor is not entitled to any exemption pursuant to Ohio Rev.Code § 2329.66(A)(12)(d) for future earnings. However, the Debtor is entitled to claim as exempt $400 of the settlement award pursuant to Ohio Rev.Code § 2329.66(A)(17). Accordingly, the Trustee's objection to the Debtor's claim of exemption in the amount of $5,000 is sustained. The Trustee's objection to the Debtor's claim of exemption in the amount of $400 under the provisions of Ohio Rev. Code § 2329.66(A)(17) is overruled.
IT IS SO ORDERED.
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471 F.Supp. 1113 (1979)
John Wesley CLUTCHETTE et al., Plaintiffs,
v.
J. J. ENOMOTO et al., Defendants.
No. C-70-2497 AJZ.
United States District Court, N. D. California.
March 2, 1979.
*1114 Steinhart, Goldberg, Feigenbaum & Ladar, Robert T. Fries, San Francisco, Cal., for plaintiffs.
George Deukmejian, Atty. Gen. of the State of California, William D. Stein, Deputy Atty. Gen., San Francisco, Cal., for defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
ZIRPOLI, District Judge.
This case, originally filed in 1970, has resulted in several ground-breaking opinions, by this court, the Court of Appeals for the Ninth Circuit, and the Supreme Court. (See: Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971), aff'd, 497 F.2d 809 (9th Cir. 1974), modified, 510 F.2d 613 (9th Cir. 1975), rev'd sub nom., Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976).) The plaintiff class consists of prisoners at California's San Quentin prison who challenge the constitutionality of prison disciplinary proceedings. On June 21, 1971, after an evidentiary hearing, this court ordered the state to permit prisoners accused of infractions that may be punishable by a prosecution in state courts to retain counsel, and to provide counsel where the inmate is unable to procure representation on his own behalf. Where a less serious violation of prison disciplinary rules is involved, the state was ordered to permit or provide "counsel-substitute," that is, someone to assist the inmate in dealing with the accusations against him, though this person need not be an attorney. 328 F.Supp. at 783. The court further held that various other due process rights attached to institutional disciplinary proceedings, including the right to remain silent without the drawing of adverse inferences, the right to call witnesses in one's own behalf, and the right to cross-examine witnesses presented by the state.
The Supreme Court subsequently held that the question of whether to permit counsel at a prison disciplinary proceeding should be left to the state and to the prison's administrators. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Court recognized, however, that in certain cases circumstances might mandate that assistance in the form of counsel-substitute:
Where an illiterate inmate is involved, however, or where the complexity of the issues makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff. We need not pursue the matter further here, however, for there is no claim that respondent, McDonnell, is within the class of inmates entitled to advice or help from others in the course of a prison disciplinary hearing.
Id. at 570, 94 S.Ct. at 2982. The Ninth Circuit, which originally had affirmed this court's order in virtually all respects (Clutchette v. Procunier, 497 F.2d 809 (9th Cir. 1974)), modified its opinion in light of Wolff's conclusion that the significant consideration was the inmate's ability "competently *1115 to handle his case without help." Clutchette v. Procunier, 510 F.2d 613, 616 (9th Cir. 1975). The Supreme Court reversed both opinions of the Ninth Circuit, adopting the conclusion in Wolff that the conduct of prison procedures is better left to prison officials. Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). On the issue of counsel, the Court reiterated its conclusion in Wolff that the state need not provide nor permit counsel in disciplinary proceedings. Id. at 315, 96 S.Ct. 1551. The Court did not address the issue of counsel-substitute. The Ninth Circuit vacated its prior opinions to the extent that they were inconsistent with Baxter, and remanded to this court for further proceedings. Clutchette v. Enomoto, 536 F.2d 305 (9th Cir. 1976).
The plaintiffs have negotiated with the state in the attempt to formulate procedures that are acceptable to prison officials while at the same time protective of the rights of class members to the extent that these may have a constitutional foundation in light of the Supreme Court's opinion in this matter. Apparently, the parties have been able to settle their differences in all areas other than that of counsel-substitutes. The plaintiffs have made this motion for summary judgment on that issue, seeking to have invalidated the present prison regulations providing for staff assistance to inmates in some disciplinary situations, and to have imposed more liberal provisions for counsel-substitute. The court grants in part and denies in part the plaintiff's motion.
1. The Present System
The current Rules and Regulations of the Director of the Department of Corrections are contained in 15 California Administrative Code sections 3310-3325. The plaintiffs accept the rules and regulations as set forth therein with one exception: they claim that the rules do not provide for adequate counsel-substitute to assist prisoners in investigating charges of rule violations and presenting their defenses at disciplinary hearings. The rules provide, in this respect, that an inmate charged with a "serious" rule violation[1] shall have "the right to have an investigative employee assigned to investigate the charges." The inmate may waive this right, but the hearing officer may nonetheless order that an investigator be assigned. 15 Cal.Admin.Code § 3315(d). The investigator is required to prepare a report for submission to the hearing officer, and the inmate is entitled to receive a copy of this report at least 24 hours prior to the hearing. 15 Cal.Admin. Code § 3319(a). An inmate may not select the investigator that will be assigned to his case, but may object to the first investigator assigned, in which case a new investigator will be designated. 15 Cal.Admin.Code § 3319(b).
In addition to an investigator, an inmate is in some circumstances entitled to the aid of a staff assistant. Section 3318(a) of 15 California Administrative Code provides in part:
When it is evident that an inmate will be unable for any reason to comprehend the disciplinary charges, the possible consequences of such charges, the disciplinary hearing process or the purpose of classification committee review of housing status, the appeal procedures, or his or her rights, or to collect and present evidence in support of his or her own defense or position, a staff member will be assigned by the chief disciplinary officer to assist the inmate. . . .
As with investigators, an inmate may peremptorily challenge the first staff assistant assigned to his case. 15 Cal.Admin.Code § 3318(b). The regulations make clear, however, that the staff assistant is not an advocate for the inmate:
(c) Before assignment of a staff assistant, the inmate will be informed that the staff member will assist the inmate only to the extent possible to insure that the inmate's position is understood and that the inmate understands his or her rights, *1116 the procedures involved, and the decisions reached. Staff will not give legal counsel nor advise the inmate of the position that he or she should take in any disciplinary, classification or criminal proceedings. The inmate will be warned that acceptance of staff assistance offers no immunity nor confidentiality of or for any incrimination evidence or information disclosed to or discovered by the staff assistant, either in a disciplinary hearing or in criminal proceedings before or after a disciplinary hearing.
(d) Any staff member assigned to assist an inmate who becomes aware of information or evidence which presents a threat to institution security or to the safety of any person or the general public must immediately report that information to the official in charge of the institution.
15 Cal.Admin.Code § 3318(c)-(d).
It is this system that the plaintiffs seek to change.
2. The Plaintiffs' Complaints
The plaintiffs argue that an inmate charged with violating a disciplinary rule is entitled to counsel-substitute whenever the inmate is unable competently to handle his case without help. As authority for this contention, the plaintiffs cite the prior opinion of this court in this case, and note that neither the subsequent history of the case nor intervening opinions of the Supreme Court or the Ninth Circuit Court of Appeals have altered this right. They note that when this case was remanded by the Ninth Circuit after its modification in light of Wolff, supra, that court held that the state was required to provide for counsel-substitute when the needs of the inmate so dictated. Clutchette v. Procunier, 510 F.2d 613, 616 (9th Cir. 1975). The Supreme Court, in reversing the Ninth Circuit, did not discuss this issue, and therefore, it is argued, the requirement is left intact.
This requirement established, the plaintiffs contend that the present system is defective in several respects. First, they contend that the staff assistant assigned to an inmate's case should be an advocate and counselor for the inmate, while in fact the assistance provided merely takes the form of interpretation. Secondly, it is argued that the staff assistant is an inadequate counsel-substitute because this person is not free to keep communications with the prisoner confidential. To the contrary, the staff assistant is under an affirmative obligation to divulge communications under certain circumstances. (See 15 Cal.Admin. Code § 3318(d), quoted supra.) Thirdly, plaintiffs allege that the system is inadequate because the pool of counsel-substitutes is limited to staff personnel, thereby excluding other capableand, it is contended, more desirablepersons from acting as counsel-substitutes. Finally, the plaintiffs complain that even such help as is currently available in the form of staff assistants should be offered as a matter of course, and not simply because the prison officials determine that it is "evident" that the inmate will not be able to comprehend the proceedings. In support of this contention, plaintiffs note that a majority of San Quentin's population might qualify as "illiterate" for the purposes of the test set forth in Wolff.
The defendants deny that an inmate is entitled to the assistance of counsel-substitute, and in fact argue that this term is a "rubric" by which the plaintiffs seek to obtain more than that to which they are entitled. They specifically note that Wolff calls only for "substitute aid," and does not specifically require that this aid have the other attributes of an attorney. They further contend that the dilemma to which a prisoner is allegedly put in choosing between, on the one hand, divulging his confidences to the staff assistant on the risk that they will be disclosed to prison authorities or, on the other, of proceeding with inadequate assistance, is simply one of the difficult choices to which defendants are commonly subjected by the legal system. (See McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).) Defendants conclude their brief with an extensive presentation wherein it is argued that federal courts should not leap to the forefront *1117 in determining how a state prison should conduct its affairs, especially where a state court could more fully remedy whatever defects exist, as the supervisory powers of a state court over a state institution exceed the powers of a federal court, which may only mandate the constitutional rudiments. The state therefore asks the court to abstain, and asks the plaintiffs to proceed, if at all, before the California courts.
3. Discussion
The court grants the motion insofar as it would require the state to make the staff assistant retain the confidences of the inmate; to be an advocate for an inmate not competent to act as such on his own behalf; and to notify all inmates charged with disciplinary infractions that a staff assistant is available to those not able competently to conduct their own defense in the proceeding. The motion is denied to the extent that it would require the prison to permit persons other than staff members or other inmates to act as counsel substitutes, and to the extent that it would require the staff assistant to act as an advocate in all cases.
The case is essentially one of first impression in that it calls for a determination of the breadth of assistance to be afforded to an inmate in a prison disciplinary proceeding where the inmate's competency in conducting his own defense is in doubt. Specifically, the court is asked to elaborate on the requirement of Wolff v. McDonnell, 418 U.S. at 570, 94 S.Ct. at 2982, that an inmate who is illiterate or who faces issues so complex that it is "unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case" be provided adequate assistance in lieu of counsel.
The plaintiffs claim that the present assistance is inadequate, and the court agrees. Starting with the assumption that an inmate has already been determined to be unable competently to pursue the matter without assistance, it can hardly be considered "adequate" that he is provided with a staff member whose duties as well as his loyalties require that he report important items of information to the inmate's adversary. An inmate cannot reasonably be expected to reveal such information to the staff assistant on pain of further punishment or other measures; yet the prison itself has already determined that the inmate is not competent to proceed on his own. Without deciding whether the burden-on-conflicting-rights argument of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), is a dead letter, as defendants suggest, it appears that as a direct matter of construing the opinion of the Supreme Court in Wolff, some assistance is required that would put the incompetent inmate on a par with the competent. It is this form of "substitute aid" that the Court ordered for those not otherwise competent to conduct themselves, and it is this sort of aid that the Ninth Circuit, in modifying its opinion in this case in light of Wolff, directed that the state should provide. Clutchette v. Enomoto, 510 F.2d at 616. Yet a staff member who must report to the warden any information that the inmate gives him that may be construed by the assistant as posing a threat to the institution cannot fairly be said to provide this sort of aid. It is not simply a matter of the inmate being put to a choice between undesirable alternatives; it is a matter of the assistance being provided not measuring up to the standard that the Supreme Court dictated in Wolff and that the Ninth Circuit required in remanding this case. Accordingly, 15 Cal.Admin.Code section 3318(d), which requires the staff assistant to divulge confidences, violates the Supreme Court's mandate and violates the rights of inmates thereunder. This aspect of the summary judgment motion is therefore granted.
With respect to plaintiffs' complaint that the staff assistant should be an advocate on behalf of the inmate, the Wolff opinion provides a clear guide. The staff assistant need not be an advocate in all cases, as plaintiffs suggest, nor in no cases, as the present system requires. Rather, the *1118 person provided by the prison should be an advocate where the inmate is unable to advocate his position on his own behalf, which is not the case in every instance in which a staff assistant is provided. That is, there will be many cases in which the inmate facing a disciplinary proceeding will be able competently to advocate his own position once he has been provided with the appropriate assistance and explanations of the nature of the proceeding pending against him. For such an inmate, Wolff does not require that the state provide an advocate. Yet there will also be cases where information and impartial assistance will not be enough. For example, in the case of a prisoner not fluent in the English language, or otherwise unable adequately to argue on his own behalf, the assistance of an advocate would clearly be desirable, and, indeed, mandated by the tenor of the Supreme Court's opinion in Wolff.
Plaintiffs also argue that each inmate facing a disciplinary proceeding should be made aware of the availability of staff assistance, and the state should be required to produce a written waiver of such assistance where such assistance has not been provided. The present system exhibits the other extreme: inmates are not notified at all of the staff assistance that is available unless and until the authorities determine that it "is evident" that the inmate cannot competently conduct the proceedings on his own. Certainly a compromise is in order. The state's procedure of relying on its own discretion to decide whether to make assistance available is unacceptable, as the inmate should have at least some voice in the determination that he is unable to comprehend his predicament and competently to deal with it, even if the ultimate determination is left, as it inevitably must be, with the prison administration. The prison should be required, therefore, at least to make the inmate aware that staff assistance is available in the event that the inmate believes himself to be, or is ultimately found to be, incompetent to proceed on his own. In addition, some procedure should be established for determining whether the inmate qualifies for such assistance. The inmate could thereby be given an opportunity to convince the officials that he qualifies for assistance rather than be forced to rely on them to discover his incapacity on their own inquiry.
Plaintiffs would have the court go farther than this and engage in the presumption that every inmate at San Quentin would qualify as incompetent or illiterate within the meaning of Wolff. In support of this contention, it is noted that the median educational level of the inmates at San Quentin is the seventh grade, and 75 percent of the prisoners have not gone beyond the ninth grade. Yet in the latter half of 1977, only 16 percent of the inmates against whom disciplinary proceedings were conducted received help from staff assistants. Plaintiffs would therefore require the state to make a special showing that a particular prisoner was not entitled to aid, rather than the current practice of requiring a special showing that aid should be provided.
The court need not go this far, however. If the court can be assured that prisoners have been made aware that assistance will be provided should they qualify, it is not necessary to impose the additional burden of mandatory assistance. The prison may choose to require inmates to sign a form indicating that they have been made aware of the possibility of aid, simply as a form of protection against further litigation, but this should be left to the prison absent evidence of abuse.
Plaintiffs finally argue that the current regulations are defective in that they limit the pool of available counsel-substitutes to staff members, who may lack competence in legal areas, and who must have certain loyalties to their employer, the institution. Plaintiffs suggest that, for example, law students should be included among those available to assist inmates. Wolff and Baxter require the court to reject this claim. The central theme of those cases as they relate to the exclusion of counsel from prison disciplinary proceedings is that the prison is a unique, complicated, and potentially volatile institution, and that prison *1119 authorities have a duty to other prisoners and to the community at large to maintain order and security that must be balanced against the rights of the inmates to due process protections. With this premise in mind, it would be remiss for this court to require San Quentin to permit inmates to select members of the outside community to assist them, with the attendant traffic that a maximum security facility like San Quentin may be unable to accommodate without compromising security and decorum. The court therefore rejects plaintiffs' request. The striking of the regulation that requires a staff assistant to disclose confidences, plus the requirement that the assistant be an advocate in appropriate situations will adequately provide the aid to inmates required by due process and by Wolff without overstepping the boundaries the Supreme Court has established. Should the prison choose to permit law students or other inmates to provide assistance, of course it may do so.
The defendants have argued that the court should keep out of the business of running state penal institutions. The court rejects this argument today, as it has on prior occasions in this case. When a question of due process and the interpretation of Supreme Court mandate is placed before the court in a properly constituted controversy, as this one, the court's duty is to see that the federal interests and requirements are protected. If, as defendants suggest, the plaintiffs could obtain a more complete remedy in state court, then perhaps plaintiffs would be well advised to seek the balance of their remedy in that forum. But where there are issues properly presented to this court, and properly within its jurisdiction, the court should render its decision to the best of its ability. The inapplicability of the various abstention doctrines was fully discussed in this court's original opinion, 328 F.Supp. at 771-73. The Ninth Circuit reached the same conclusion. 497 F.2d at 814 n.6. The Supreme Court did not address the issue and must be said to be in agreement, since that Court also reached the merits of the case.
ORDERED ACCORDINGLY.
NOTES
[1] A "serious" rule violation is one defined by 15 Cal.Admin.Code § 3315(a). The parties are not in dispute as to the breadth of this category.
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568 F.2d 204
Pughv.Locke*
No. 77-2732
United States Court of Appeals, Fifth Circuit
1/31/78
1
M.D.Ala.
2
DISMISSED***
*
Summary Calendar case; Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
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7 F.3d 1044
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Jo CHAMBERS, Appellant,v.William H. GRAY, Trustee of Frontier Energy Resources, Inc., Appellee.
No. 93-5020.
United States Court of Appeals, Tenth Circuit.
Oct. 6, 1993.
1
Before LOGAN and BRORBY, Circuit Judges, and KANE,** District Judge.
ORDER AND JUDGMENT1
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
3
Jo Chambers, a creditor of the debtor, Frontier Energy Resources, Inc., appeals from an order of the district court dismissing as moot her appeal from an order of the bankruptcy court. The trustee urges that Chambers' notice of appeal to this court was untimely. Therefore, we first address whether we have jurisdiction over this appeal.
4
On November 24, 1992, the district court dismissed Chambers' appeal. On December 2, 1992, within ten days of the entry of that order, Chambers filed a motion for leave to file a motion for rehearing as required by local Rule B-10(a)(8), District Court Rules of Bankruptcy Practice and Procedure. On December 18, 1992, the district court denied the motion. On January 19, 1993, Chambers filed a notice of appeal to this court.
5
An appealing party must file its notice of appeal within thirty days of the entry of final judgment unless the time is tolled by a motion filed pursuant to Fed.R.App.P. 4(a)(4). The issue thus is whether Chambers' motion for leave to file a motion for rehearing was a tolling motion under Bankr.RuleP. 8015.2
6
A motion filed pursuant to a local rule does not toll the time for taking an appeal. However, this court had held an identical local rule in Kansas invalid prior to the time Chambers filed her motion. See Burger King Corp. v. Wilkinson (In re Wilkinson), 923 F.2d 154 (10th Cir.1991), on remand 1991 WL 49726 * 3 n.4 (D. Kan.1991)(noting the local rule had been repealed). In Wilkinson, we held the local rule invalid because its application frustrated our jurisdiction. We noted that the local rule impermissibly gave the district court the discretion to decide whether a motion for rehearing would be permitted and was inconsistent with the bankruptcy rules. Id. at 155. Because the appellant had also filed a motion for rehearing in the district court which was still pending, we held that the notice of appeal was premature, dismissed the appeal, and remanded the case for the district court to rule on the pending motion.
7
On December 22, 1992, four days after the district court denied Chambers' motion, we specifically invalidated Rule B-10(a)(8) citing Wilkinson. See Otasco Inc. v. Mohawk Rubber Co. (In re Otasco, Inc.), 981 F.2d 1166, 1167 (10th Cir.1992). In Otasco, the appellant had filed a timely motion for rehearing prior to complying with the local rule which the district court had not ruled on. We, therefore, dismissed the appeal and remanded the case for the district court to rule on the pending motion.
8
Here, Chambers followed the dictates of the local rule and did not file a motion for rehearing. Thus, Chambers has filed no motion in district court which would toll the time for taking an appeal. We decline to punish Chambers for following the local rule only. Dismissal of this appeal would deny Chambers all appellate rights. Therefore, we construe Chambers' motion as a motion for rehearing, and the district court's order as one denying that motion.
9
The district court denied Chambers' motion December 18, 1992. Chambers filed her notice of appeal January 19, 1993. The notice of appeal was timely because January 17, 1993, was a Sunday and January 18 was a legal holiday. See Fed.R.App.P. 26(a). Consequently, Chambers' notice of appeal is timely.
10
We next consider whether the district court correctly ruled that Chambers' appeal from the bankruptcy court's order is moot. "We review de novo the bankruptcy and district court's rulings of law." Swink v. Sunwest Bank (In re Fingado), 995 F.2d 175, 178 (10th Cir.1993).
11
The district court held that Chambers' appeal was moot because, in accordance with the bankruptcy court's order, the trustee had sold the property at issue, oil well casing, and had plugged the well. Pursuant to 11 U.S.C. 363(m), the validity of a court-approved sale of property of a debtor to a "good faith purchaser" cannot be affected by any ruling on appeal unless a stay was obtained pending the appeal. Therefore, without a stay, any appeal from an order authorizing the sale of the bankruptcy estate's property is moot. See Tompkins v. Frey (In re Bel Air Assocs., Ltd.), 706 F.2d 301, 304-05 (10th Cir.1983). "[A] 'good faith purchaser' is one who buys in 'good faith' and for 'value.' " Id. at 305 (footnotes and citations omitted). Chambers argues that the oil casing belonged to her as did the leasing rights to the plugged well. However, whether the property which was sold was part of the bankruptcy estate is not determinative. See In re Sax, 796 F.2d 994, 997-98 (7th Cir.1986). "Section 363(m) [of Title 11 of the United States Code] does not say that the sale must be proper under 363(b); it says the sale must be authorized under 363(b).... At this juncture, it matters not whether the authorization was correct or incorrect." Id. Chambers does not allege the casing was not purchased by a good faith purchaser. See Ewell v. Diebert (In re Ewell), 958 F.2d 276, 282 (9th Cir.1992)(if buyer was good faith purchaser, sale may not be modified or set aside unless order was stayed pending appeal; if it was not, court cannot grant any effective relief).
12
Chambers argues she was not required to obtain a stay because she is not suing the estate, but rather is suing the trustee personally and seeks only money damages. Chambers has no cause of action against the trustee. The trustee is immune from suit in this situation. See Gregory v. United StatesUnited States Bankruptcy Court for the Dist. of Colo., 942 F.2d 1498, 1500 n.1 (10th Cir.1991)("[A]bsolute quasijudicial immunity for a lawyer serving as a trustee and merely executing the bankruptcy judge's orders concerning the collection and disposition of estate property is essential for the efficient functioning of the bankruptcy court."), cert. denied, 112 S.Ct. 2276 (1992).
13
Consequently, because the district court could not grant any effective relief with regards to the sale of the casing or the plugging of the well, Chambers' appeal was moot. See Pursifull v. Eakin, 814 F.2d 1501, 1506 (10th Cir.1987).
14
The judgment of the United States District Court for the Northern District of Oklahoma dismissing Chambers' appeal for mootness is AFFIRMED.
**
Honorable John L. Kane, Jr., Senior District Judge, United States District Court for the District of Colorado, sitting by designation
1
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3
2
The trustee argues that the tolling provisions found in Fed.R.App.P. 4(a)(4) do not apply to appeals filed in bankruptcy cases citing Fed.R.App.P. 6(b)(1)(i). However, Rule 6(b)(2)(i) provides that the time for taking an appeal to this court is tolled by timely motions for rehearing filed pursuant to Bankruptcy Rule 8015. See Ford Motor Credit Co. v. Shah (In re Shah), 859 F.2d 1463, 1464-65 (10th Cir.1988)
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772 F.Supp.2d 844 (2011)
Natalie CLARK, Plaintiff,
v.
Nick ROCCANOVA, et al., Defendants.
Civil Action No. 10-155-JBC.
United States District Court, E.D. Kentucky, Central Division, Lexington.
February 14, 2011.
*846 Jeffrey C. Rager, Wellman, Nichols & Smith, PLLC, Mark A. Wohlander, Wohlander Law Office, Lexington, KY, for Plaintiff.
Daniel E. Murner, Elizabeth Johnson Winchell, Landrum & Shouse LLP, F. William Hardt, III, Frost Brown Todd LLC, Phillip Anthony Sammons, Dinsmore & Shohl, Lexington, KY, Timothy Brian Schenkel, Freund, Freeze & Arnold, Covington, KY, for Defendants.
MEMORANDUM OPINION AND ORDER
JENNIFER B. COFFMAN, Chief District Judge.
This matter is before the court on the motions of the defendants, Nick Roccanova, Michael Rudy and Jack Lynch, to dismiss this action (R. 11, 12, and 13), and on Rudy's motion to strike (R. 13). For the following reasons, Roccanova and Rudy's motions to dismiss will be denied; Lynch's motion to dismiss will be denied in part and granted in part; and Rudy's motion to strike will be denied.
I. Background[1]
The instant lawsuit arises out of a civil claim under Chapter 110 of Title 18 of the United States Code regarding the sexual exploitation of a minor child. In 2006, Roccanova, Rudy and Lynch coerced, enticed *847 and persuaded Clark to produce a sexually explicit video, in violation of 18 U.S.C. § 2251. That same year, all three defendants transmitted the video in interstate commerce on the internet, in violation of 18 U.S.C. § 2252. All parties were 14 years old at the time of these actions. Prior to filing an answer to Clark's complaint, all three defendants have filed motions to dismiss and Rudy has filed a motion to strike.
II. Legal Analysis
A. Application of the Law to Children
The defendants are covered by the law, even if they are not adults. Nothing in the plain language of the statutes or their legislative history indicates that Congress intended 18 U.S.C. § 2251 and § 2252 to apply only to the conduct of adults. Both statutes prohibit creation, possession and transmission of child pornography by any "person." While "person" is not defined in 18 U.S.C. § 2256, the statute's definition of "identifiable minor" begins by stating that a minor is a "person." 18 U.S.C. § 2256(9)(A). This indicates that "person" is meant to refer to an individual of any age, not just an adult. Neither statute at issue contains language which would narrow the definition of "person" to mean only adults.
Additionally, there is nothing in the legislative history which would indicate Congress intended "person" to mean an adult. 18 U.S.C. § 2251 and § 2252 were first enacted as part of the Protection of Children Against Sexual Exploitation Act of 1997, Pub.L. No. 95-225, 92 Stat. 7 (1978). In all legislative records regarding the statutes at issue, Congress refers only to "persons" and does not narrow the term to adults.
Rather, the legislative history of the Act states that the "Committee on Human Resources has a deep and abiding concern for the health and welfare of the children and the youth of America," and therefore "condemns such base and sordid activities which may permanently traumatize and warp the minds of the children involved." S.Rep. No. 95-438, at 3-4 (1977), U.S. Code Cong. & Admin.News 1978, pp. 40, 40-42 (emphasis added). Encounters which produce child pornography "cannot help but have a deep psychological, humiliating impact on these youngsters and jeopardize the possibility of healthy, affectionate relationships in the future." Id. at 6. Nothing in the record indicates that a child would be less traumatized if that pornography is created or transmitted by a child rather than an adult. Lynch argues that the phrase "use of a minor" in the definition of "child pornography" demonstrates that Congress intended to target adults. R. 11 at 6 (quoting 18 U.S.C. § 2256). However, nothing in the phrase, the rest of the definition or the congressional record indicates that only an adult can "use" a minor.
Child pornography has no First Amendment protection because of its negative impact on the child involved, Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), even if it depicts a work of value. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Child pornography is limited to depictions of actual children, because protection of children is the purpose of the legislation. Ashcroft, 535 U.S. at 250, 122 S.Ct. 1389. Nothing in the jurisprudence indicates that such harm could be done only by adult perpetrators.
It is not surprising that no federal precedent exists for a suit against a minor under these statutes, given the relatively recent rapid emergence of "sexting" by minors. However, prosecutors have begun to charge minors under child pornography statutes. See Sarah Wastler, The Harm *848 in "Sexting"?: Analyzing the Constitutionality of Child Pornography Statutes that Prohibit the Voluntary Production, Possession, and Dissemination of Sexually Explicit Images by Teenagers, 33 Harv. J.L. & Gender 687 (2010).
Thus, based on the plain language of the statutes, legislative history and case law, Clark has a claim under the statutes, and the court will deny the defendants' motion to dismiss on this basis.
B. Deficiency in the Pleadings
The court finds unpersuasive the defendants' argument that Clark's complaint is deficient under Rule 8(a)(2), which requires only that a pleading contain "a short and plain statement of the claims showing that the pleader is entitled to relief." The court is required to "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." In re Travel Agent Com'n Antitrust Litigation, 583 F.3d 896 (6th Cir.2009) (quoting Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008)). The pleading standard under Rule 8 "does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Howard v. City of Girard, Ohio, 346 Fed.Appx.49, 50 (6th Cir. 2009). In order to survive a motion to dismiss, a plaintiff must assert "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
1. Complaint as a Whole
Clark's first cause of action, that the defendants solicited the production of sexually explicit visual depictions in violation of 18 U.S.C. § 2251(a), alleges sufficient facts to state a plausible claim against Roccanova, Rudy and Lynch. In her complaint, Clark asserts many facts which support her allegation against Roccanova. She specifies several conversations with Roccanova, detailing his actions in convincing Clark to send him the video. R. 1 at ¶ 11-13. Regarding Lynch and Rudy's involvement in persuading Clark to create and send the video, Clark's complaint is less detailed but sufficient. Clark states, "Defendants Rudy and Lynch were also present and aided and abetted Defendant Roccanova's efforts to coerce, entice and persuade Plaintiff Clark to produce a sexually explicit video." R. 1 at ¶ 14. These facts are sufficient to make Clark's claim of relief plausible. Therefore, the court will deny the motions to dismiss for all defendants as to count one.
Clark's second and third causes of action, asserting that all three defendants possessed and caused to be distributed in interstate commerce the sexually explicit visual depictions in violation of 18 U.S.C. § 2252(a), contain sufficient factual assertions to state a plausible claim as to Roccanova and Rudy but not as to Lynch. With regard to Roccanova and Rudy, Clark's complaint contains numerous factual assertions with regard to their behavior in possession, manipulation and transmission of the video to other persons via the internet. R. 1 at ¶ 15-16. However, Clark gives no facts with regard to Lynch's involvement in the transmitting of this video. She asserts only that "Defendants acted in concert with each other" in possessing and transmitting the video. R. 1 at ¶ 33 and 41. This is no more than an unadorned accusation and is not sufficient to survive a motion for dismissal. Therefore, *849 the court will deny the motion for dismissal as to Roccanova and Rudy but will grant the motion as to Lynch on counts two and three.
2. 18 U.S.C. § 2251 and In Pari Delicto
Clark has asserted sufficient facts in her complaint to survive a motion to dismiss for failure to establish an element of 18 U.S.C. § 2251, notwithstanding the in pari delicto doctrine. In her complaint, Clark alleges that she received several telephone calls from Roccanova asking for the video in question and threatening to withhold his friendship if the video was not produced. R. 1 at ¶ 11-14. Roccanova asserts that this behavior was not enough to satisfy 18 U.S.C. § 2251 to "employ[], use[], persuade[], induce[], entice[], or coerce[]." However, "induce" is defined as "[t]o lead (a person), by persuasion or some influence or motive that acts upon the will. . . ." Oxford English Dictionary (2nd ed. 1989). Roccanova's actions, in concert with those of Rudy and Lynch, meet the definition of "induce." Clark has stated a cause of action, as the defendants' alleged actions fall under 18 U.S.C. § 2251.
The doctrine of in pari delicto does not apply, since Clark was induced into sending the video. 18 U.S.C. § 2251 states that "any person who . . . induces. . . any minor to engage in . . . sexually explicit conduct . . . shall be punished as provided under subsection (e)." This implies that the minor who is induced to engage in this conduct is not the person to be punished. Rather, Clark is the victim specifically protected, rather than the initial perpetrator. The doctrine of in pari delicto does not compel the court to grant the defendants' motion to dismiss.
C. Joinder of Necessary Parties
Clark has fulfilled her obligation under Fed. R. Civ. Pro. 19 to join all necessary parties. Under Rule 19, a plaintiff must join all required parties if "(A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing the action in the person's absence may . . . leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. . . ." Lynch, Rudy and Roccanova claim that the other students who sent and received the video are required parties. However, nothing in Clark's complaint or the defendants' motions indicate that the absence of these parties would cause the harm anticipated by Rule 19.
Complete relief can be accorded among the existing parties. "Completeness is determined on the basis of those persons who are already parties, and not as between a party and the absent person whose joinder is sought." School Dist. of City of Pontiac v. Secretary of U.S. Dept. of Education, 584 F.3d 253, 265 (6th Cir. 2009) (quoting Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d Cir. 1996)) (internal quotations omitted). This case involves the alleged actions of the defendants in creating, possessing and distributing sexually explicit material involving a minor. Simply because Clark could also have sued other individuals for damages, they are not necessary parties to the instant action. The actions of unnamed parties in further spreading the video do not prevent this court from according complete relief, nor do such actions leave the defendants open to inconsistent obligations.
Even if such parties were considered to be "necessary," their joinder may not be feasible. The court would then determine "whether, in equity and good conscience, the action should proceed among the existing parties. . . ." Fed. R. Civ. Pro. 19(b). *850 Equity would not be served if Clark were required to identify all persons who transmitted or received the video via the internet. Such a requirement would make a civil suit under 18 U.S.C. 2252 nearly impossible, as child pornography can be distributed widely on the internet and it would be extremely difficult and financially prohibitive to require a plaintiff to identify all parties who participate in that distribution. Therefore, the court will deny the motion to dismiss for failure to join required parties.
D. Motion to Strike
The court is not persuaded by Rudy's argument that the portion of Clark's complaint in R. 1 at ¶ 8 regarding Rudy's statement should be stricken. Rudy argues that the sentence at issue is injurious to him and immaterial to Clark's claims. R. 13. Fed. R. Civ. Pro. 12(f) states that a "court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." However, motions to strike are viewed with disfavor and are infrequently granted. A "motion to strike should be granted only when the pleading to be [stricken] has no possible relation to the controversy." Brown & Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6th Cir.1953). While the alleged statement occurred prior to the creation of the video, it is still material. It supports Clark's claim as it speaks to Rudy's motives for later alleged actions. Therefore, the court will deny Rudy's motion to strike.
III. Conclusions
Accordingly,
IT IS ORDERED that Lynch's motion to dismiss (R. 11) is DENIED as to count 1 and GRANTED as to counts 2 and 3.
IT IS FURTHER ORDERED that Roccanova's motion to dismiss (R. 12) is DENIED.
IT IS FURTHER ORDERED that Rudy's motion to dismiss and motion to strike (R. 13) are DENIED.
NOTES
[1] The court will take the plaintiff's factual allegations as true for purposes of this motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
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209 P.3d 765 (2009)
BRAZIL
v.
BANK ONE CORP.
No. 100989.
Court of Appeals of Kansas.
June 26, 2009.
Decision without published opinion. Affirmed.
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585 F.2d 1297
Enrique C. LERMA, Petitioner-Appellant,v.W. J. ESTELLE, Jr., Director, Texas Department ofCorrections, Respondent-Appellee.
No. 77-2798.
United States Court of Appeals,Fifth Circuit.
Dec. 11, 1978.
Enrique C. Lerma, pro se.
Larry G. Barbour, Houston, Tex. (Court-appointed), for petitioner-appellant.
John L. Hill, Atty. Gen., Robert E. De Long, Jr., David M. Kendall, Jr., Joe B. Dibrell, Jr., Douglas M. Becker, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before COLEMAN, GEE and RUBIN, Circuit Judges.
PER CURIAM:
1
Enrique Lerma, a Texas convict, having lost at an October, 1975 prison disciplinary hearing 360 days of "good time" credit and the right to accrue further good time, challenges the procedural protections afforded him at that hearing as constitutionally insufficient.1 His hearing occurred after the Supreme Court, in Wolff v. McDonnell, 1974, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, held the Due Process clause of the Fourteenth Amendment applicable to the revocation of good time through state prison disciplinary proceedings. The District Court considered Lerma's application for habeas corpus on its merits and denied relief.
2
On October 8, 1974, while Lerma and a group of other prisoners were weeding a soybean patch, an inmate shouted an obscenity at their supervisor, Shine. Shine said something to Lerma, indicating his belief that Lerma had shouted the obscenity. Lerma denied it, and Shine ordered him back to work. There were further words between the two: Lerma says he asked that Shine not shout at him; Shine says Lerma was disrespectful and disobeyed the order to return to work. Shine ordered Lerma removed from the squad, and reported the incident to another officer, who took Lerma to "administrative segregation." Later that day, Lerma was brought before his unit's disciplinary committee, and was charged with "Laziness: Failure to Work" and "Disrespectful Attitude," both in violation of prison regulations. He was sentenced to 15 days in solitary confinement, forfeiture of 360 days of good time, and demotion from Class I to Class III status, which prevented him, until reclassified, from accruing further good time. It is uncontroverted that Lerma received no more than several hours' notice of his hearing. At the hearing, Shine's report was introduced and Lerma gave his version of the occurrence.
3
Under the then existing TDC regulations Lerma could have appealed the findings made or the penalties assessed at his hearing to the TDC Director. Upon appeal the Director could have revised either the findings or the penalty. Lerma did not appeal.
4
Twenty-one months later, June, 1976, Lerma unsuccessfully sought relief in state court. On October 28, 1976, Two years after the episode in the soybean field, Lerma filed his federal habeas petition.
5
In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court said:
6
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures than the administration of its prisons. The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen. For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State. Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems. Moreover, because most potential litigation involving state prisoners arises on a day-to-day basis, it is most efficiently and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with those grievances.
7
93 S.Ct. at 1837.
8
Immediately prior to this exposition of the law the Supreme Court had said:
9
The rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal-state comity. That principle was defined in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as "a proper respect for state functions," and it has as much relevance in areas of particular state administrative concern as it does where state judicial action is being attacked.
10
Rodriguez involved the same question we have here, that is, the loss of good time credit because of a violation of prison rules and regulations. We must therefore adhere to the view that in habeas corpus cases the exhaustion principle has as much relevance in areas of Administrative concern as it does where state judicial action is being attacked.
11
It is admitted, as it has to be, that Lerma had an available administrative remedy had he seen fit to exercise it. He could have appealed to the Director, who was possessed of the authority to revise either findings or penalty. It is now argued, however, that such an appeal would Likely have been futile. It seems, however, that this argument is speculative. Had an appeal been ignored, or decided adversely to Lerma, we might have been provided with solid ground upon which to justify federal intervention in state prison administration.
12
Since that has been prevented by Lerma's failure to exhaust his clearly available administrative remedies we may not reverse the denial of habeas corpus relief.
13
We further observe, as the Supreme Court did in Rodriguez (93 S.Ct. 1832-1833) that the Habeas Corpus Statute, 28 U.S.C. § 2254(c), specifies that an applicant shall not be deemed to have exhausted the remedies available in the courts of the State if he has the right under the law of the State to raise By any available procedure (emphasis added) the question presented.
14
We affirm the denial of federal habeas corpus relief and remand the case to allow Lerma, if he so desires, to present his appeal to the Texas Director.
15
AFFIRMED and REMANDED.
ALVIN B. RUBIN, Circuit Judge, dissenting:
16
Respectfully, I must dissent from the conclusion my brethren have reached. Lerma has exhausted his state court judicial remedies. In that proceeding, the warden did not suggest that he should first have exhausted his state administrative remedies. On an issue raised for the first time in federal court, we deny relief. We would never permit a habeas corpus applicant to urge a claim not exhausted in state court. Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438; Galtieri v. Wainwright, 5 Cir. 1978, 582 F.2d 348; 28 U.S.C. § 2254(b), (c) (1970). It is not merely the inconsistency of our action that causes me to differ; it is also that the policy on which my brethren purport to rely was not fashioned for this end, and our action does not serve the amity for which the policy was designed. In that respect it is, of course, immaterial for what offense Lerma was incarcerated.
17
The judge-made doctrine of exhaustion, now codified in 28 U.S.C. §§ 2254(b) and 2254(c),1 requires a state prisoner to exhaust "the remedies available in the courts of the State" as a prerequisite to federal habeas corpus relief. The rule reflects a federal policy attempting to effect a proper balance between the roles of state and federal judicial institutions in protecting federal rights.2 "These fundamental interests underlying the exhaustion doctrine are satisfied by giving the state an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Tooten v. Shevin, 5 Cir. 1974, 493 F.2d 173, 176, Cert. denied, 1975, 421 U.S. 966, 95 S.Ct. 1957, 44 L.Ed.2d 454 (footnote omitted). "The exhaustion doctrine should not, therefore, be applied mechanically without regard to factual setting." Pate v. Holman, 5 Cir. 1965, 343 F.2d 546, 547.
18
Preiser v. Rodriguez, 1973, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, on which my brethren rely is not apposite here for it involved invocation of section 1983 relief by a prisoner whose proper remedy was held to be habeas corpus. The prisoner sought to avoid seeking relief by that route because he would have been required to expand state remedies. The court held that, before resorting Directly to a federal court, he must exhaust state administrative remedies.
19
Lerma has pursued his state remedies fully through Texas courts. The Director made his position, adverse to Lerma's, known in Lerma's state habeas proceeding without there suggesting that Lerma should have pursued an administrative appeal. To require him even then to appeal to the Director would likely have been a futile act; the TDC rules were adopted under its present Director and, in Lerma's case, were applied as they were written and intended. Cf. Houghton v. Shafer, 1968, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319. To require him now, after submitting his claims to state court and exhausting his state Judicial remedy two years ago, to return to the state administrative body and try again for administrative relief would surely entrap him in a maze. By ruling now on Lerma's petition, the federal court does not deprive the state of its primary role in enforcing federal rights.
20
Moreover, this case poses no potential disruption to state adjudicatory processes. There is no state proceeding now pending that may be disturbed. As discussed below, the state, in any event, will not be required to adopt new procedures. Dismissing this suit now to require Lerma to file an administrative appeal would serve no discernible comity interest and would not encourage others in the future to by-pass administrative relief, for they would in any event be required to exhaust state judicial remedies and their failure to seek administrative anodyne would there be a defense.3
21
In contrast to the limited burden on the state, the deprivation suffered by Lerma is substantial.4 Lerma was sentenced to 15 days in solitary confinement, forfeiture of 360 days of good time, and demotion from Class I to Class III status,5 which prevented him, until reclassified, from accruing further good time. Although the TDC, in brief, argues that Lerma might again receive his accrued good time credit based on his future good behavior, that prospect is purely speculative. It is further questionable whether the Director could now restore good time as a commutation of sentence, pursuant to the provisions of the statute under which Lerma accrued good time in 1974, Tex.Civ.Stat.Ann. art. 6184L (Vernon 1970) (repealed 1977); Texas, in 1977, enacted a new "good conduct time" statute, Tex.Civ.Stat.Ann. art. 6181-1 (Vernon Supp.1978), providing that good conduct time will apply only to eligibility for parole and non-parole rehabilitation programs that occur outside the prison. Acts of 1977, ch. 347, § 3, p. 932.
22
Considering both the consequences of Lerma's delay and the loss to him at stake in this suit, I believe the principles of equity militate for, not against, our consideration of Lerma's position.
23
My brethren do not reach the issue of the constitutionality of the TDC actions. Because of the view I take of the case, I would reach that issue. In any event, should Lerma now seek administrative relief, a resume of the constitutional principles may be in order.
24
In Wolff v. McDonnell, supra, inmates of one Nebraska prison brought suit under 42 U.S.C. § 1983 to challenge the constitutional sufficiency of prison disciplinary procedures that might lead to the revocation of good time credits under Nebraska's good time scheme. The Supreme Court held the Due Process clause applicable to the revocation of good time credit in Nebraska, 418 U.S. at 555-58, 94 S.Ct. at 2974-76, 41 L.Ed.2d at 950-52, and outlined those procedures mandated by the Due Process clause in that context, 418 U.S. at 563-72, 94 S.Ct. at 2978-82, 41 L.Ed.2d at 955-61.
25
The Court said in Wolff that its "analysis as to liberty parallels the accepted due process analysis as to property." 418 U.S. at 557, 94 S.Ct. at 2975, 41 L.Ed.2d at 952.6 The critical issue in both is not whether a person may validly be deprived of property, or liberty, either for one reason or many; instead, it is whether the state itself has rules that a deprivation may be effected Only for cause. If the state has such rules, either by statute or regulation, that both recognize a right and protect it against infringement without cause, this creates a protectable interest in liberty or property that cannot be infringed except under constitutionally adequate procedures. The key factor in determining the existence of a protectable interest in good time is not the behavior for which good time may be revoked, but whether the state has statutory provisions creating both a right to good time and forbidding the deprivation of good time except as a sanction for Cause ; under these circumstances, the Due Process clause applies to protect the individual "against arbitrary action of government."7 418 U.S. at 558, 94 S.Ct. at 2976, 41 L.Ed.2d at 952.
26
At the time Lerma was reclassified, Texas had both enacted a statutory right to accrue good time and prohibited its revocation save for cause. Under the 1974 "good conduct time" statute, good time could be revoked only "(f)or each sustained charge of misconduct in violation of any rule known to the prisoner." Tex.Civ.Stat.Ann. art. 6184L (Vernon 1970) (repealed 1977). Reclassification was permitted under the statute "from time to time as in (the opinion of the Classification Committee) the circumstances may require." Id. Although that statute appears to have afforded the TDC leeway to change inmate classification without cause, the TDC had limited any such discretion by its own initiative under its published rules and regulations, TDC Rules and Regulations and Grievance Procedures, § 2.5.2 (Nov. 1, 1975), Formerly TDC Rules and Regulations, § 2.52 (July 9, 1973), the full text of which is set forth in the footnote.8 Under these provisions, an inmate, such as Lerma, could be demoted to Class III only for a violation of a TDC Rule. Both interests of which Lerma was deprived could thus be revoked only for cause, and, therefore, both are protected by the requirements of procedural due process.
27
Having concluded that the Due Process clause does govern the procedures under which Lerma, in 1974, could be deprived of good time,9 the next question to be faced is whether he was in fact afforded due process. Lerma insists he was not because he did not receive the 24 hours written notice mandated by Wolff, supra, 418 U.S. at 564, 94 S.Ct. at 2979, 41 L.Ed.2d at 956, and he was not allowed to call witnesses in his defense even though the disciplinary committee made no finding that his doing so would be "unduly hazardous to institutional safety or correctional goals," Wolff, supra, 418 U.S. at 566, 94 S.Ct. at 2979, 41 L.Ed.2d at 956. Having identified the key similarity between the good time statutes of Texas and Nebraska that explains why due process applies to the Texas scheme, I must now consider whether the interests created are sufficiently similar so that the failure to provide Lerma those protections deemed necessary in the context of Nebraska's scheme also constituted a denial of due process in Texas.
28
In discussing the protection due with respect to the termination of Social Security benefits, the Supreme Court set forth a rubric generally applicable to the determination of what constitutes minimal due process in a particular context; a court should focus on:
29
the private interest that will be affected by the official action; . . . the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
30
Mathews v. Eldridge, 1976, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (citations omitted). Considering these factors as applied to Lerma, it is evident that the failure to accord him those protections held by the Supreme Court to be required in Nebraska did deny him due process of law. His affected interest was of the same kind as that affected by official action in Nebraska. The risk of an erroneous deprivation was, if anything, greater because the grounds for revocation of good time in Texas are less specific than those in Nebraska. The value of the additional safeguards would, of course, be as great in Texas as in Nebraska. Finally, because Texas has already adopted procedures that more than comply with the dictates of Wolff, TDC Rules and Regulations and Grievance Procedures, § 4.0 Et seq. (Nov. 1, 1975), the granting of a new hearing now to Lerma will impose only a minimal fiscal and administrative burden. Under the Mathews calculus, Lerma was entitled to greater protection than he enjoyed; his deprivation cannot be viewed as harmless under the circumstances.
31
Because of Texas's 1975 procedural reforms, it would be unnecessary for a court now to determine what procedures would suffice as the constitutional minimum in Texas; Texas's new and thoughtful rules supply at least the minimum protection required. They comply fully with the spirit as well as the letter of Wolff. Under these circumstances, the TDC Director can fully comply with his constitutional duty simply by affording Lerma a new hearing under the now-existing rules.
32
Lerma is entitled to a new hearing. Au fond, the real difference between my brethren and me is that they say, "Go back and ask the Director of Corrections for a hearing. If he refuses, go again to the state court. Then and only then will you be in proper supplicatory posture for federal consideration." I would say to the warden without further delay, "Do what the constitution requires and accord Lerma due process of law." If Lerma must meet the minotaur, let him at least do so by a path that we do not make labyrinthine.
1
On September 14, 1971, a jury found Lerma, a known user of heroin, guilty of possessing heroin and assessed his punishment at confinement for 20 years in the Texas Department of Corrections. The conviction was affirmed, Lerma v. State, Tex.Cr.App., 491 S.W.2d 152 (1973)
1
28 U.S.C. §§ 2254(b) and 2254(c) provide:
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
2
The exhaustion requirement is merely an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963)
Wilwording v. Swenson, 1971, 404 U.S. 249, 250, 92 S.Ct. 407, 408-09, 30 L.Ed.2d 418, 420-21.
3
This suit is not barred by laches. Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts permits the dismissal of a delayed petition where the state has been prejudiced in its ability to respond to the petition. No such prejudice exists here; the facts relevant to whether Lerma was afforded adequate protections under the Due Process clause have proved readily discoverable and largely undisputed. Congress, in 1976, amended Rule 9(a), Act of Sept. 28, 1976, Pub.L. 94-426, § 2(7), 90 Stat. 1335, to eliminate the Supreme Court's original provision under which a rebuttable presumption of prejudice arose after five years of delay. See H.Rep.No.94-1471, 94th Cong., 2d Sess. 5, In 1976 U.S.Code Cong. & Admin.News 2478, 2481. The legislative history of Rule 9(a) indicates the appropriateness of extreme caution before a federal court dismisses a state inmate's habeas petition on grounds of delay. No evidence has been introduced to indicate that Lerma's delay in filing his state suit was purposeful on his part, nor has any clear indication of prejudice to the state been shown. The state may have difficulty in reconstructing what happened in the soybean patch in 1974, but Lerma is still available and there is no indication in the record that Shine, the only witness who testified against him, is not also available. Rule 9(a) is directed at prejudice in responding to the petition for the writ, not at the problem of the remedy if the writ is granted
4
The respondent has argued that, because Lerma's classification has been subject to continual review since October 8, 1974, and because he was in fact subject to subsequent disciplinary proceedings, it would be difficult if not impossible to calculate the relief to which Lerma would be entitled should a disciplinary committee now find in his favor on the October, 1974 charge. I disagree
First, I note that, although two good time statutes, which granted good time at different rates, were "on the books" in Texas during 1974, it is now clear that Lerma was accruing 20 days a month in good time credit under art. 6184L, Tex.Civ.Stat.Ann. (Vernon 1970) (repealed 1977), and was not affected by art. 6166v, Tex.Civ.Stat.Ann. (Vernon 1970). The Texas Court of Criminal Appeals held in 1976 that art. 6184L, adopted in 1943 and amended in 1945 and 1949, had repealed art. 6166v. Ex parte Weaver, Tex.Cr.App.1976, 537 S.W.2d 252. At the time of Lerma's October, 1974 hearing, he had been incarcerated for more than 18 months, and had never before been demoted from Class I status; hence, he was deprived of 360 days of actual accrued good time by the action of the disciplinary committee.
Second, when Lerma was the respondent in a disciplinary hearing on January 21, 1975, his sentence required him to remain at Class III status. Lerma has in no way challenged the appropriateness of the committee's disposition at this hearing or its constitutional sufficiency. It may be fairly inferred that had Lerma not been demoted to Class III status in October, 1974, he would have been so demoted on January 21, 1975. See Tex.Civ.Stat.Ann. art. 6181-1 (Vernon Supp.1978).
Thus, should the TDC now find in Lerma's favor, the effect of restoring his revoked good time and retroactively restoring his Class I status will be to credit him with 360 days of good time plus such additional good time as would have accrued between October 8, 1974 and January 21, 1975.
5
The TDC's classification scheme is set forth in footnote 8, Infra
6
To paraphrase the analysis as typically cast in the "property" due process cases, there are "such rules or mutually explicit understandings that support (the prisoner's) claim of entitlement (to good time) and that he may invoke at a hearing." Perry v. Sindermann, 1972, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570, 580; Bishop v. Wood, 1976, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684; Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548
7
The TDC urges that, because Texas in 1974 permitted the forfeiture of good time "(f)or each sustained charge of misconduct in violation of any rule known to the prisoner . . .," Tex.Civ.Stat.Ann. art. 6184L (Vernon 1970) (repealed 1977), in comparison to Nebraska, which permitted revocation only for "flagrant or serious misconduct," Wolff, supra, 418 U.S. at 545 n. 5, 94 S.Ct. at 2969, 41 L.Ed.2d at 944-45, Texas prisoners have a "less substantial" interest in good time than Nebraska prisoners, and Wolff 's mandate does not apply to Texas's good time scheme. This misconstrues the analysis in Wolff and in related due process cases
8
2.5.2 Good Time Categories
Under the Texas commutation law there are three classes of commutation time or "good time." These good time or time-earning categories are referred to as Class I, Class II, and Class III.
2
5.2.1 Class I provides that each inmate in this time-earning class will receive a total of 20 extra days time for each month served on his sentence, as long as that inmate maintains a clear conduct and work record. Whenever any inmate is received in the Texas Department of Corrections, he is immediately placed in Class I
2
5.2.2 Class II provides that any inmate in this class or category will receive a total of 10 extra days time for each month served. This class is set aside for those inmates who have been found in violation of one or more of the rules and regulations of the Texas Department of Corrections. The State Disciplinary Committee is the governing authority for placing an inmate in this classification
2
5.2.3 Class III provides that each inmate in this category will receive no extra days for each month served. Class III is for those inmates who violate one or more of the rules and regulations of the Texas Department of Corrections. The State Disciplinary Committee is the governing authority which places an inmate in this category and is also the authority for restoring the inmate to a time-earning class. The Committee will act only with the recommendation of the unit warden
9
Notwithstanding the TDC's adoption in 1975 of procedures that guarantee due process in the revocation of good time, Texas adopted in 1977 a statute that provides, "Good conduct time is a privilege and not a right." Tex.Civ.Stat.Ann. art. 6181-1 (Vernon Supp.1978). We do not reach the applicability of Wolff to the revocation of good time accrued under this statute, but we note that good time is still revocable only if "an inmate commits an offense or violates a rule of the department."
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616 F.2d 568
Guidryv.South Louisiana Contractors Inc.
No. 77-3435
United States Court of Appeals, Fifth Circuit
4/22/80
W.D.La., 614 F.2d 447
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27 So.3d 1005 (2009)
Lavelle W. AYCOCK, et al.
v.
Daniel CHICOLA.
No. 09-563.
Court of Appeal of Louisiana, Third Circuit.
December 16, 2009.
Robert Edgerton Bethard, Bethard & Bethard, Coushatta, LA, for Defendant/Appellee, Daniel Chicola.
Jeffrey Howerton Thomas, Thomas Law firm, Natchitoches, LA, for Plaintiffs/Appellants, Arden J. Lea, Lavelle W. Aycock, South Texas Partners, LLC.
William Roby Jones, Jones & Adams, Coushatta, LA, for Intervenors/Appellees, United Country/Gaddis Realty, Edgar Gaddis, Inc.
Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
SAUNDERS, Judge.
This is a case that involves a dispute over whether two parties agreed to sell property. The buyer claims that the seller agreed to sell the land, then refused to transfer the property as per the real estate agreement.
*1006 The buyers filed suit attaching a document to their petition that they argue is a contract confected by the defendant/appellee to sell the property. The buyers then supplemented that petition and attached another document to that supplementation. They claimed, in the alternative to a finding that the first purported contract was not a valid contract, that this document was the confected contract to sell the property.
The purported sellers filed an exception of no cause of action claiming that the two documents are not valid contracts to sell land. The district court granted the seller's exception and dismissed the buyer's claims. We reverse and remand, finding that the buyers' petition stated a valid claim for relief.
FACTS AND PROCEDURAL HISTORY:
In March of 2008, Daniel Chicola (Chicola) was the owner of approximately 295 acres of property situation in Natchitoches Parish. Chicola decided to offer this property for sale and entered into a exclusive right to sell listing agreement with M.L.S., Inc. that appointed United Country/Gaddis Realty to assist in selling this property. Robbie Simmons (Simmons), an employee of United Country, contacted Levell W. Aycock to purchase this property.
On April 17, 2008, Aycock, Arden J. Lea, and South Texas Partners, L.L.C. (collectively Aycock), met with Simmons regarding the sale of the property. A document entitled "Real Estate Buy/Sell Agreement," that contained the terms reflecting Aycock's offer to purchase the land, was created. This document was then given to Chicola to contemplate the offer. Chicola made two changes to the offer: (1) Chicola extended the date that physical transfer of the property was to take place by three months to allow time to bring in a crop on the land; and (2) Chicola deleted a provision regarding the right of access to the property and noted that the property had access by way of a back lot that was to be part of the sale of the land. Chicola then signed the document and checked a box labeled Counter Offer.
On April 18, 2008, Aycock, thinking that a contract was confected, created a bank money order in the amount of $7,500.00 for the deposit required in the April 17, 2008, document. After discussions allegedly ensued regarding $30 per acre monthly cash rent to be paid for the additional three months referenced by Chicola, on April 21, 2008, another document was created. That document reflected the cash rent and was silent regarding access to the property. Aycock signed this document and sent the document to Chicola's realtor.
Chicola later refused to perform in accordance to the alleged contract(s). Aycock filed suit against Chicola on April 30, 2008, requesting, specific performance or damages for breach of contract. Aycock supplemented his petition on June 18, 2008. Edgar Gaddis, Inc. doing business as United Country/Gaddis Realty filed an intervention in the proceedings to recognize that, should Aycock be successful in his petition, its three percent commission be recognized. On July 16, 2008, Chicola filed a peremptory exception of no cause of action. In November 2008, after a hearing, the district court rendered its ruling and judgment that granted Chicola's exception. Aycock filed this appeal, alleging the following four assignments of error:
ASSIGNMENTS OF ERROR:
1. The District Court erroneously applied the legal standard for deciding an Exception of No Cause of Action.
2. The District Court erroneously found that the payment of the deposit was not an unequivocal acceptance *1007 by Aycock of Chicola's "Counter Offer."
3. The District Court erroneously concluded that the signature by Aycock on the April 21, 2008 Buy/Sell Agreement was not an acceptance of Chicola's "Counter Offer."
4. The District Court erroneously concluded that the April 21, 2008 Buy/Sell Agreement was not a binding offer by Chicola and accepted by Aycock.
ASSIGNMENT OF ERROR NUMBER ONE:
Aycock argues in brief that the district court erroneously applied the legal standard for deciding an exception of no cause of action. We find that this assignment of error is moot given that the remedy to this assignment is the same as the standard of reviewing an exception of no cause of action.
The standard of review when an appellate court is presented with an exception of no cause of action is well-settled. Our Supreme Court, in Ramey v. DeCaire, 03-1299, pp. 7-8 (La.3/19/04), 869 So.2d 114, 118-19 (citations omitted), stated the following:
A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.
Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.
The burden of demonstrating that the petition states no cause of action is upon the mover. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief.
The standard of review stated above entitles Aycock to a de novo review of the record, as he has appealed a district court's decision on an exception of no cause of action. Aycock, in his assignment of error, alleges that the district court committed an error of law. When such an error of law is committed by a lower court, the appellate court should conduct a de novo review of the record. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). Thus, regardless of whether the district court applied the incorrect legal standard for an exception of no cause of action, Aycock is entitled to a de novo review of the record. Accordingly, we will conduct that de novo review to determine whether Chicola's exception of no cause of action was correctly granted.
In the case before us, Aycock's original petition had a document attached *1008 to it dated April 17, 2008, that is entitled REAL ESTATE BUY/SELL AGREEMENT. Attached to Aycock's first amended and/or supplemental petition was a document dated April 21, 2008, again entitled REAL ESTATE BUY/SELL AGREEMENT. While the standard of review cited above makes no mention of whether this court can consider these attachments for purposes of reviewing an exception of no cause of action, this court, in Mire v. Fidelity & Casualty Co. of New York, 338 So.2d 351, 352 (La.App. 3 Cir.1976)(emphasis added), stated, "[i]n ruling on an exception of no cause of action, only the well-pleaded facts in plaintiff's petition or documents attached thereto can be considered." Therefore, when we conduct our de novo review of the record before us, we will not only consider Aycock's petition and its supplement, we will also consider these two documents attached to the petition to determine whether Aycock, when construing all allegations in Aycock's petition in a light most favorable him and with every doubt resolved Aycock's favor, the petition states any valid cause of action for relief that Aycock is legally entitled to seek.
In the original petition Aycock sought a judgment ordering Chicola to specifically perform his obligations or to pay damages for breach of contract under the terms of the April 17, 2008, document. In the alternative, Aycock sought an injunction ordering Chicola to execute an original cash sale deed for the property referenced in the April 17, 2008, document. In the supplement to his petition Aycock sought a judgment declaring that the April 21, 2008, document is a written promise to sell the property by Chicola. Further, Aycock sought a judgment ordering Chicola to specifically perform his obligations or to pay damages for breach of contract under the terms of the April 21, 2008, document. In the alternative, Aycock again sought an injunction ordering Chicola to execute an original cash sale deed for the property referenced in the April 21, 2008, document.
Louisiana Civil Code Article 2439 states that a "[s]ale is a contract whereby a person transferring ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale." Louisiana Civil Code Article 2440 states that "[a] sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839."[1]
Given the requested relief and the applicable code articles, in order to defeat Chicola's exception of no cause of action, Aycock must allege in his petition that there was an act under private signature or authentic act where the thing to be sold is identified, the price for that thing is identified, and the consent of both parties to the sale is indicated. Further, Aycock must allege that Chicola failed to perform his obligations under the alleged act under private signature or authentic act in some manner. We find that Aycock's original petition meets these requirements.
In Paragraph two of his original petition it is clear that Aycock's allegation specifically identifies the thing to be sold in the purported sale:
*1009 2.
Lot 1 of Block E of Addition # 1 to Greenville Park Subdivision as the same is more fully shown on a plat of survey prepared by R.L. Gunter, R.L.S. dated December 17, 1968, and filed of record in Map Book 1, page 547, map slide 108 A of the records of Natchitoches Parish, Louisiana.
AND
That certain piece, parcel or tract of ground containing 295 acres, more or less located in Section 84, Township 10 North, Range 7 West, and Sections 19 and 30, Township 10 North, Range 6 West, Natchitoches Parish, Louisiana, and being more particularly described by reference to Exhibit "A" attached hereto and made a part hereof.
(The above described properties hereinafter referred to as the "Chicola Properties")
In Paragraph three of his original petition Aycock's allegations establish that there was a price for the thing to be sold and that an act under private signature or authentic act was created by the parties in order to sell the thing at that price:
3.
Petitioners show that on April 17, 2008 Lavell W. Aycock, individually and on behalf of the other petitioners, executed a "Real Estate Buy/Sell Agreement" (the "April 17, 2008 Real Estate Contract), offering to purchase the Chicola properties for the price and sum of $725,000.00, which offer was tendered to and received by the defendant, Daniel Chicola. A copy of the April 17, 2008 Real Estate Contract is attached hereto and made a part hereof as Exhibit "B".
Aycock's allegations in Paragraphs five, six, seven, and eight of his original petition establish the consent of both parties to the sale of the thing for the price in the above alleged act under private signature or authentic act:
5.
Upon completion of the black spaces, the April 17, 2008 Real Estate Contract was signed by Aycock, individually and on behalf of South Texas Parties, L.L.C., a Louisiana Limited Liability Company which was to have been formed by Aycock's Natchitoches attorney, the members of which include Aycock and Lea.
6.
The completed April 17, 2008 Real Estate Contract was then tendered to the defendant, Daniel Chicola, who made two handwritten revisions to lines 23 and 123 of the April 17, 2008 Real Estate Contract, which April 17, 2008 Real Estate Contract was then signed by this defendant and returned to Aycock, all as will be more fully shown by reference to page 3 of Exhibit "B".
7.
The two revisions to lines 23 and 123 of the April 17, 2008 Real Estate Contract were immaterial to the price, object and consent of the parties and consisted of the following:
Line 23: hand written date of "10/1/01" initialed by this defendant, instead of "[7]/1/08" which was originally typed on line 23.
Line 123: hand written provision of "Lot on back property goes with property for access." which was initialed by this defendant.
8.
The original of the April 17, 2008 Real Estate Contract was then returned to Aycock who issued a Bank Money Order *1010 no.: 159543, drawn on the Gibsland Bank & Trust Co. payable to the order of the listing agent, United Country/Edgar Gadis Realty, in the sum of $7,250.00, the amount of the deposit provided for in the April 17, 2008 Real Estate Contract. On April 18, 2008, Aycock returned both the original of the April 17, 2008 Real Estate Contract bearing the signatures of Aycock and Chicola, together with the Bank Money Order for the deposit to the account of the defendant's real estate agent, Robbie Simmons, thus acknowledging acceptance of the revised terms and conditions of the April 17, 2008 Real Estate Contract. A copy of the Gibsland Bank Money Order is attached hereto as Exhibit "C".
Finally, the allegation in Paragraph nine of Aycock's original petition establishes that Chicola failed to perform his obligation under the act under private signature or authentic act:
9.
The defendant refused to comply with the terms and provisions of the April 17, 2008 Real Estate Contract by refusing to execute an instrument translative of title to the Plaintiffs and thus the defendant has failed to perform in accordance with its terms.
Chicola argues that the document attached to Aycock's original petition was not a contract for various reasons not pertinent to this particular issue on appeal. Chicola's argument is misguided, for regardless of whether the attached document is actually a valid contract to sell land, Aycock has alleged all that is necessary under the law to defeat an exception of no cause of action. Whether the contract is valid, i.e. whether the allegations are ultimately established to be true, is more suitable for summary judgment or some other procedural vehicle not at issue before this court.
Therefore, we find that the district court erred in granting Chicola's exception of no cause of action. When viewed in a light most favorable to Aycock and with every doubt resolved in his favor, his original petition states a valid cause of action for relief. Accordingly, we reverse the district court's judgment dismissing Aycock's claims against Chicola, and remand the case for further proceeding.
CONCLUSION:
Aycock raised four assignments of error, the first of which was that the district court erroneously applied the legal standard for deciding an exception of no cause of action. We find that regardless if Aycock is correct, he is entitled to a de novo review of the record given that this type of review is the standard for this exception. After conducting that review to determine whether the granting of an exception for no cause of action was appropriate, we find that a judgment dismissing Aycock's claims against Chicola based on a finding of no cause of action was incorrect.
Therefore, we reverse the district court's judgment and remand the case for further proceedings not inconsistent with this opinion. The remaining assignments of error raised by Aycock are pretermitted by our finding in assignment of error number one. The costs of this proceeding are to be paid by Chicola.
REVERSED AND REMANDED.
NOTES
[1] Louisiana Civil Code Article 1839 creates an exception to the requirement of La.Civ.Code art. 2440 that the sale of immovable property must be by authentic act or by act under private signature. It validates an oral transfer "when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath." La.Civ. Code art. 1839. Here, the property was not actually delivered, thus, the exception in Article 1839 does not apply.
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966 A.2d 1077 (2009)
198 N.J. 311
STATE
v.
RUE.
Supreme Court of New Jersey.
February 4, 2009.
Petition for certification. Denied.
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242 Ga. 889 (1979)
252 S.E.2d 391
BURGESS
v.
THE STATE.
34049.
Supreme Court of Georgia.
Submitted September 15, 1978.
Decided January 4, 1979.
Rehearing Denied January 23, 1979.
Arline S. Kerman, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, Arthur K. Bolton, Attorney General, Susan V. Boleyn, Assistant Attorney General, for appellee.
HILL, Justice.
In October, 1978, appellant Raymond Burgess, Michael Dixon, Michael Anthony Booker and Terri Jean *890 Jones were indicted in Fulton County for the murder of Danny Earl Cotton. Burgess and Jones were tried jointly; both were found guilty of felony murder and received life sentences.[1]
The evidence showed that the four co-indictees were together on the night of September 27, 1978, in Atlanta in a car borrowed by Burgess. They drove to Decatur to Michael Dixon's home and then decided to drive to Macon. They proceeded toward Macon but stopped at a motel in Henry County where the three men entered a motel room and robbed the occupants of money and a pistol.[2] They left the motel and proceeded to drive along I-285, where they picked up a young man walking home along the expressway. He testified that he sat in the back with Burgess and Jones[3] and that the driver and the passenger in the front seat asked him a number of questions about service stations, i.e., which ones in the area were open late and at which the attendants were armed. After he got out of the car, the four co-indictees proceeded to the Union 76 gas station at Paces Ferry Road. There the three men, one of whom brandished a pistol, robbed the attendant, Danny Earl Cotton, and a friend who was visiting him, and then forced Cotton to open a floor safe. They then drove away from the area, taking Cotton and his friend with them. They proceeded to the Bankhead Court apartments where all four co-indictees got out of the car; the murder victim, Danny Earl Cotton, and his friend also got out and were ordered to run for some nearby woods. As they ran, shots were fired and Danny Earl Cotton was fatally wounded.
*891 1. Defendant's first enumeration of error, that the evidence is insufficient to support the verdict, is without merit. His enumerations that the trial court erred in not granting his motions for a directed verdict made at the close of the state's case and at the close of the evidence, are also without merit. Mitchell v. State, 236 Ga. 251 (4) (223 SE2d 650) (1976).
2. Defendant's second enumeration of error is that the trial court erred in admitting his confession because it was not voluntarily given. Pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial court conducted a hearing on this issue outside of the jury's presence and determined that the confession was voluntarily given before allowing it to be presented to the jury. The evidence presented by the state supported his determination. This enumeration is without merit.
3. Defendant enumerates as error the trial court's denial of his motion to suppress his identification by one of the victims of the motel robbery. Defendant argues that this identification was tainted by the fact that the victim attended a lineup held outside of the presence of defendant's attorney. This, however, was a pre-indictment lineup, and there is no evidence of any abuse of the identification procedures. There is no merit in this enumeration. Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) (1972); Mitchell v. State, 236 Ga. 251 (2), supra.
4. Defendant contends that photographs of the victim's body should not have been admitted because they were not properly authenticated and because their prejudicial effect outweighed their probative value. The truth and accuracy of the photographs was testified to by three witnesses: a woman who heard the shots and discovered the body; a police officer called to the scene; and the victim's companion.[4] The pictures were all taken at the scene. There is no merit in this enumeration. Davis v. State, 240 Ga. 763 (6) (243 SE2d 12) (1978).
5. In enumerations 5 and 7, defendant contends that *892 the admission of evidence concerning the motel robbery was error in that this evidence was not admissible because it related to an independent crime and its prejudicial impact outweighed its relevance. Payne v. State, 233 Ga. 294, 312 (210 SE2d 775) (1974); Hunt v. State, 233 Ga. 329 (211 SE2d 288) (1974). The defendant was clearly identified as a perpetrator of that crime by the victims, and although the two armed robberies varied in that one occurred at a motel and the other at a filling station, they were closely connected in time and involved the same perpetrators. We find no reversible error in the admission of the evidence of the motel robbery. French v. State, 237 Ga. 620 (229 SE2d 410) (1976); Clemson v. State, 239 Ga. 357 (3) (236 SE2d 663) (1977); Woods v. State, 240 Ga. 265 (7) (239 SE2d 786) (1977).
6. There is no merit in defendant's contention that the trial court abused its discretion in allowing the prosecutor to lead one of the state's witnesses, the alleged triggerman, Michael Dixon. Code Ann. § 38-1706.
7. Defendant's ninth enumeration of error is that the trial court erred in overruling his objection to the prosecutor's question on cross: "Didn't you drive the getaway car after Danny Cotton was killed?" Defendant contends that the use of the word "getaway" was inflammatory and highly prejudicial in that it implied that a crime had been committed by the defendant. Such implication was supported by the evidence and there is no merit in this contention.
Judgment affirmed. All the Justices concur.
NOTES
[1] Michael Dixon, the alleged trigger man, pled guilty to murder. Michael Anthony Booker was tried by a jury, convicted of felony murder, and sentenced to life imprisonment. The appeal by Booker appears at Booker v. State, 242 Ga. 773 (1979); Jones' appeal appears at Jones v. State, 242 Ga. 892, post. (1979).
[2] There is some evidence suggesting an attempted rape occurred during this incident.
[3] According to statements by Burgess and Jones, Burgess was driving at this time and for the rest of the evening.
[4] This witness was shown only one of the five photographs of the body.
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258 S.W.2d 323 (1953)
Ex parte HODGE.
No. 26487.
Court of Criminal Appeals of Texas.
May 27, 1953.
John Cutler, Houston, for appellant.
Wesley Dice, State's Atty., of Austin, for the State.
MORRISON, Judge.
This is an original application for a writ of habeas corpus brought by relator *324 seeking his release from the Texas Prison System.
The record reflects that relator was convicted in the District Court of Foard County and sentenced to two years' confinement.
Thereafter, relator was convicted in the District Court of Moore County, where he received a like term. The setence in the Moore County case concludes with the following order:
"It is further ordered by the court that this sentence shall not run concurrent to any other sentence or sentences against this defendant."
Such an order did not effectively cumulate the two sentences.
We have been furnished with a certificate from the authorities of the Texas Prison System stating that if relator's sentences are held to run concurrently, then he has served them.
The writ of habeas corpus is granted, and the relator is ordered discharged.
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439 A.2d 469 (1981)
UNITED STATES, Appellant,
v.
Shao T. HSU, Appellee.
No. 80-13.
District of Columbia Court of Appeals.
Argued January 28, 1981.[*]
Decided November 12, 1981.
*470 Michael W. Farrell, Asst. U.S. Atty., with whom Charles F. C. Ruff, U.S. Atty. John A. Terry and Davis S. Krakoff, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.
Jeffrey Lee Greenspan, Washington, D.C., for appellee.
Before KERN and NEBEKER, Associate Judges, and GALLAGHER,[**] Associate Judge, Retired.
KERN, Associate Judge:
A jury found appellee guilty of perjury, D.C.Code 1973, § 22-2501, but this court, with one judge in dissent, reversed the conviction on the ground that the record was insufficient to demonstrate a voluntary and intelligent waiver of counsel on the part of appellee who had proceeded to try his own case. Hsu v. United States, D.C.App., 392 A.2d 972 (1978).
Prior to the retrial the government was faced with the claim by one of its witnesses from the original trial that he had no present memory of the events on the date of the alleged perjury about which he had testified at the first trial. Therefore, it sought a ruling by the trial court to admit into evidence the transcript of his testimony at the first trial under either of two exceptions to the hearsay evidence rule: past recollection recorded or prior cross-examined testimony.
The trial court heard testimony from the witness and argument from counsel and the court disbelieved the witness' assertion that he could not remember the crucial events to which he had testified in the first trial. Accordingly, the court ruled that the hearsay exceptions asserted were not available because the witness' recollection was not exhausted and the witness was not unavailable for the retrial.
In addition, the court ruled that since the waiver of counsel at the first trial had been invalid it would violate appellee's Sixth Amendment Right to Confrontation to allow the witness' prior testimony to come into evidence at the retrial. The court excluded the prior testimony of the witness from use at the retrial. The government now appeals that ruling.
The government contends on appeal that the prior testimony of this witness meets all the criteria of the prior cross-examined testimony exception to the hearsay rule:[1] the declarant's testimony is in fact unavailable because he claims he has no memory of the events surrounding the alleged perjury; the declarant's testimony at the first trial was under oath; the issue in the first trial and at the retrial is substantially the same; and, appellee had the opportunity to cross-examine *471 the declarant in the former proceedings and did so with skill and vigor.
As to the unavailability of the witness, "[w]hether or not Johnson's claim of loss of memory is genuine, he is unavailable as a witness despite the Government's strongest efforts to produce him, and his failure to remember, even if feigned, should not deprive the trier of fact of reliable and probative testimony he has previously given." (Brief at p. 4.)
Several federal courts of appeals have confronted the issue we have in the instant case: a prosecution witness at the first trial who upon retrial feigns lack of memory of events to which he had testified at the prior trial. In dealing with this problem, the Fifth Circuit has affirmed the view:
It is the belief of this Court that the statements made in prior sworn testimony are admissible not only to impeach his claim of lack of memory, but also as an implied affirmation of the truth. The trial court's hands should not be tied where a witness does not deny making the statements nor the truth thereof, but merely falsifies a lack of memory. [United States v. Collins, 478 F.2d 837, 839 (5th Cir. 1973).]
The Second Circuit has in such a unique situation recognized the "discretionary latitude in the search for truth" vested in the trial court and allowed prior testimony of the witness feigning forgetfulness to come in as substantive evidence under the hearsay exception for prior cross-examined testimony. United States v. Insana, 423 F.2d 1165, 1170 (2d Cir. 1970).
The Federal Rules of Evidence recognize that a witness may be classified as "unavailable" for the purpose of the hearsay exception if he "testifies to a lack of memory" and his "claim of lack of memory" is not the result of any wrong-doing by the moving party. Fed.R.Evid. 804(a). See also J. Weinstein and M. Berger, Weinstein's Evidence, § 801(d)(1)(A)[04], at 100 n.13 (1980); Saltzburg and Redden, Federal Rules of Evidence Manual at 600, 613 (2d Ed. 1977).
Judge Friendly, in United States v. DeSisto, 329 F.2d 929 (2d Cir. 1964), has trenchantly explained why a witness' prior trial testimony which is at odds with his assertions at a subsequent proceeding may be received as substantive evidence and not be limited to only the credibility of the witness.
The rule limiting the use of prior statements by the witness subject to cross-examination to their effect on his credibility has been described by eminent scholars and judges as "pious fraud," "artificial," "basically misguided," "mere verbal ritual," and an anachronism "that still impede(s) our pursuit of truth.". . . [T]o tell a jury it may consider the prior testimony as reflecting on the veracity of the later denial of relevant knowledge but not as the substantive evidence that alone would be pertinent is a demand for mental gymnastics of which jurors are happily incapable.
* * * * * *
Testimony at a former trial has already been once subjected "to the test of Cross-Examination" on which our law places primary reliance for the ascertainment of truth. [Id. at 933, 934.]
We are persuaded under the circumstances here and upon consideration of the precedent above that Mr. Johnson was unavailable within the meaning of the hearsay exception for prior cross-examined testimony. Accordingly, we reject the evidentiary basis for the trial court's exclusion of Mr. Johnson's prior testimony from the retrial.
We examine now the constitutional basis of the trial court's ruling that excluded from evidence at the retrial the prior cross-examined testimony of Mr. Johnson.
The Supreme Court has stated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980):
The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In *472 the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968). See also Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); California v. Green, 399 U.S. [149], at 161-62, 165, 167, n. 16 [90 S.Ct. 1930, 1936-37, 1938, 1939, n. 16, 24 L.Ed.2d 492].
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." Snyder v. Massachusetts, 291 U.S. 97, 107 [54 S.Ct. 330, 333, 78 L.Ed. 674] (1934). [Id. at 65, 100 S.Ct. at 2538.]
The Court concluded in Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539 that "certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the `substance of the constitutional protection.'" Id. at 66, 100 S.Ct. at 2539, quoting Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). The Court expressly recognized prior cross-examined testimony as a hearsay exception with "solid foundations."
The trial court concluded in its exclusionary ruling that the prior cross-examined testimony exception to the hearsay rule recognized by the Court in Ohio v. Roberts was lacking trustworthiness in the instant case because appellee acted as his own lawyer at the original trial. The trial court opined: "[c]ross-examination through counsel seems clearly to be required as a necessary precondition to admissibility under the Constitution."
We note that in Ohio v. Roberts, supra at 73 n.12, 100 S.Ct. at 2543, the Court recognized the "unusual circumstances" present in Mancusi v. Stubbs, supra. There, the Court pointed out that in Mancusi: "the defendant's representation at the earlier proceeding, provided by counsel who had been appointed only four days prior thereto,. . . had been held to be ineffective." The Court further recognized that these unusual circumstances required inquiry into the adequacy of the cross-examination of the witness whose testimony was being proffered subsequently under the hearsay exception for prior cross-examined testimony; however, it is important to note that the Court did not exclude out of hand such testimony solely because counsel at the prior trial had been deemed ineffective.
The teaching of the Court in our view is that when unusual circumstances exist at the time the prior testimony was elicited, such as the defendant proceeding pro se at the prior trial, the "character" of the cross-examination of the declarant at the trial must be closely examined "to ensure that an adequate opportunity for full cross-examination had been afforded," and thus the trustworthiness of such prior testimony assured. Ohio v. Roberts, supra at 73 n.12, 100 S.Ct. at 2543. Accordingly, we must explore the "effectiveness" of the cross-examination of Mr. Johnson by appellee who acted as his own counsel at the first trial.
In Ohio v. Roberts, the Court itself undertook such an inquiry and the focus of the Court's inquiry is instructive for us:
Counsel's questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions, the principal tool and hallmark of cross-examination. In addition, counsel's questioning comported with the principal purpose of cross-examination: to challenge "whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the declarant's intended meaning is adequately conveyed *473 by the language he employed." [Id. at 70-71, 100 S.Ct. at 2541-2542; footnote omitted.]
We note in the instant case that appellee's "presentation" was replete with leading questions which the Supreme Court recognized is the principal tool and hallmark of cross-examination.[2] Appellee also explored in depth the bias of Mr. Johnson against him, and developed the incongruity of the witness' explanation as to why he had spent so much time visiting appellee's properties as compared to the rental properties of other landlords. Finally, appellee sharply probed into the accuracy of Mr. Johnson's testimony on direct examination as to what he had seen on the day in question. Indeed, the dissenting judge of the panel of this court which reversed appellee's conviction for absence from the record of clear waiver of counsel commented that appellee had "exhibited considerable skill in his. . . cross-examination of witnesses." Hsu v. United States, supra at 989.
We, too, are impressed with the cross-examination conducted by appellee and deem it effective enough to assure that full opportunity for cross-examination was afforded appellee, as required by Ohio v. Roberts, and thus the trustworthiness of the prior cross-examined testimony is also assured.
In sum, we are unwilling under the particular circumstances in this case to preclude the use at retrial of the prior testimony of Mr. Johnson upon either evidentiary or constitutional grounds. As to the evidentiary aspect of the conscientious trial judge's ruling, we must conclude that when the witness asserted lack of memory of the events to which he had previously testified he was "unavailable" for the purpose of the hearsay exception despite the fact that the court believed he was feigning lack of memory.
As to the Court's view of the requirement of the Confrontation Clause, we are unwilling to adopt a rule that in any case in which a defendant chooses, however imperfectly he may make and record that choice, to proceed to trial without counsel, his cross-examination of a witness during that trial is per se ineffective. Rather, the Supreme Court's teaching in Mancusi v. Stubbs, as subsequently refined in Ohio v. Roberts, is that in such an unusual case the reviewing court is obliged to scrutinize the record. Here, the cross-examination conducted by appellee met its principal purpose: to probe whether the declarant was telling the truth and accurately perceived and remembered the events he had related upon direct examination; and, whether his intended meaning upon direct examination was adequately conveyed to the jury.
We conclude that under the recent pronouncement by the Supreme Court in Ohio v. Roberts, the invocation of the hearsay exception for prior cross-examined testimony in the instant case does not offend the Sixth Amendment.
Remanded for further proceedings consistent with this opinion.
APPENDIX
PROCEEDINGS
Thereupon,
JAMES JOHNSON,
having been called as a witness on behalf of the Government and having been first duly sworn, was examined and testified, as follows:
CROSS-EXAMINATION
BY DR. HSU:
Q. Mr. Johnson, have you worked for me before?
A. No, sir.
Q. The first time I met you was where?
A. I don't recall.
Q. Were you assigned to the southeast area to do your inspection work in 1975?
*474 A. That's correct.
Q. Did you go to my building in Northwest, the address is 1621 T Street?
A. Yes, I did.
Q. Did you go to my building in Northwest on 2000-16th Street?
A. Yes.
Q. But your duty was assigned to Southeast?
A. That's correct.
Q. Why did you go to my building?
A. The reason I went to your building, sir, was because you called me at home in reference to apartments I was assigned to in my area, and you asked me if I would go to your buildings to check them out because you had a long deficiency list of violations and needed some help in terms of seeing about getting them corrected.
Q. How many times did you go there?
A. I would say about eight or ten times.
Q. Do you know I have your testimony record of the last two cases about this? Do you know that?
A. No, I didn't know it.
Q. Are you familiar with these two cases where you gave testimony before?
A. Yes. Right.
Q. So, you did say something under oath before?
A. Yes, you brought them up several times.
Q. Now you say you went to my building eight or nine times; is that what you say?
A. I would say over the course of a couple of weeks, yes.
Q. You go there every day?
A. No, I didn't go there every day.
Q. How many days in a couple of weeks?
A. I would say eight or ten days. I'm not sure. It has been some time.
Q. You were there eight or nine times, so you were there most every day; is that correct?
A. Out of a course of two weeks, yes.
Q. How long did you stay there each time you go there?
A. I'd say about an hour.
Q. And the reason you went there was because what?
A. The reason I went there to the buildings is simply because you said that if I went to the building you would see that all the violations in my area that I was assigned to would be corrected.
Q. You consider this as a favor to a landlord? Is that a favor? You work for me there, and you consider this a favor to a landlord?
A. Not as much a favor but as trying to see that the violations in my area were corrected.
Q. But that's not your jurisdiction; is that correct?
A. But I'm a Housing Inspector all over the D.C. area.
Q. But at that time you were assigned to which area?
A. I was assigned to the Southeast area.
Q. But the building you went to, my building, was in
A. Northwest.
Q. Not Southeast; is that correct?
A. That's correct.
Q. But you did go there?
A. Yes, I did.
Q. And you spent some time there.
A. That's correct.
Q. Have you done such a favor to any other landlord?
A. I've done favors for landlords and tenants, likewise?
Q. And worked every day for two weeks?
A. I've never done that. That's correct.
Q. You've never done that before.
A. No, because I never had as many violations in so many buildings.
*475 Q. The twenty dollar cash bills I give to you you put in your pocket; do you remember that?
A. That's not true, Dr. Hsu.
Q. Then why you didn't go there anymore?
A. Because it became quite evident, sir, that you weren't planning on doing any work in the first place.
Q. Did you ever tell me, you say, "Dr. Hsu, I get sick of this inspector job." Did you ever tell me that?
A. I don't recall ever saying that; no sir.
Q. Do you want a manager's job from me to manage the property?
A. No, sir.
Q. Do you know who is Mr. Ewing? Have you met Mr. Ewing?
A. The name sounds familiar.
Q. Sounds familiar?
A. Right.
Q. Is he a tall man or a short man?
A. I don't recall.
Q. Did you go to my building in Southeast, 1400 Congress Piace?
A. I been to all your buildings.
Q. Did you see the manager in the basement?
A. Oh, Mr. Ewing, right.
Q. You know him?
A. Right.
Q. Did you ask me, "Dr. Hsu, what I cannot do, then Mr. Ewing can do"? Did you ask me that?
A. No, I don't remember ever saying anything like that to you, sir.
Q. And when you went to my buildings in Northwest, two buildings, what did you do there?
A. I went to the tenants' apartments, identified myself as being a Housing Inspector, and told them that I would like to look at the paint, violations in their apartment, because you had painters on the premises that were going to correct the items.
Q. Did they have inspectors in that area at that time you were working for me?
A. That's correct.
Q. What was his name?
A. I think his name was Straley.
Q. When you went there, you did not think you were going over his head?
A. Not really, because you had asked me to go there because of my expertise as a Housing Inspector I would know what was necessary to correct the items.
Q. Did you work with my painters?
A. If you mean did I tell them what apartments were ready to be painted, what needed to be done, yes.
Q. Did you give orders or tell my men what to do?
A. I was not in charge of them. I only merely referred them to an apartment that was ready to be painted or what have you. But the ultimate decision, whether they went there or not was theirs to make, not mine.
Q. And after inspecting the apartment, what did you do? You stayed there an hour, two hours. What did you do?
A. What did I do?
Q. Yes.
A. I would leave.
Q. Do you mean that you went there, looked at the apartment, and then left?
A. No. I'm saying after I looked at the apartment.
Q. Then what did you do?
A. When I got through, I told the Reverend which apartments they could go into, then I would leave.
Q. So, you did tell the Reverend Dennis, or other people, what to do?
A. I would say yes to that extent, yes.
Q. Now, I want to show you testimony. You read it, then you tell me what it say.
THE COURT: What document and what page?
DR. HSU: Your Honor, it is the same transcript.
*476 THE COURT: What page?
DR. HSU: The page number is No. 95.
THE COURT: What transcript?
DR. HSU: This one is before Judge Beard, Your Honor, I have to submit this.
THE DEPUTY CLERK: No. 3.
THE COURT: Why don't you just go over and show Mr. Weinberg what you are talking about.
DR. HSU: This is July 21st.
BY DR. HSU:
Q. Read this line here, No. 5.
[Pause.]
A. "I was telling Dr. Hsu what to do."
Q. Then you read again Page 99.
THE COURT: In relation to all of this, the same instruction I gave Mr. Marshall at the time of Mr. Marshall's testimony about prior inconsistent statements applies to any that may or may not be demonstrated, applies to this witness.
BY DR. HSU:
Q. From Line 15 to 21.
A. "I would go over to the place, and I would knock on the tenant's door that were on the deficiency list that the inspector had brought up to see how much (indiscernible) paint they had throughout the apartment, and then I would in turn tell the workmen that Dr. Hsu had work for him at that apartment, what apartments to get in, and if he should paint the whole wall or just part of the wall."
Q. So, in one place you say you work with my men; another place you say you only tell me what to do; is that correct?
A. I
Q. That's your testimony.
THE COURT: Let him answer the question.
THE WITNESS: I didn't understand the question.
BY DR. HSU:
Q. When you a witness in a case tried on July 19th by Judge Beard, were you the one charging me with 100 violations?
A. That's correct.
Q. Did Judge Beard ask you how many you can remember yourself?
A. That's true.
Q. And what was your answer?
A. My answer was that I could only remember five or so.
Q. So you mean you are charging me with 120 violations and you can only remember five of them yourself?
A. The judge did not allow me to read from my deficiency list.
Q. He did not allow you to read. You mean you forgot completely what you have seen in apartment you put down on violation list?
A. As a matter of fact I went to a lot of your buildings, and I couldn't remember all of them, no. We always had deficiency lists to read in court cases, which he did not allow me to read from.
Q. So, therefore, did you tell Judge Beard you can only remember five out of the 120
A. I can only remember, that's correct, without the deficiency list.
Q. Did the judge find me guilty?
A. I think he found you not guilty.
Q. Not guilty.
A. I think so.
Q. Why you try to harass me like that, Mr. Johnson?
A. As a matter of fact, I've never tried to harass you. I've always tried to do my job.
Q. Is that because I fire you over there?
A. You have never fired me, and any violation I wrote up was because it was there.
Q. Is that because I did not give you a job and give to Mr. Ewing?
A. That's not true.
Q. Then that morning you stated, you saw Mr. Marshall deliver paper to me.
A. That's correct.
Q. You knew exactly what paper it is, a size like this?
*477 A. Yes, it was a size like that.
Q. A size like that?
A. Yes.
Q. And all legal papers size like this.
A. I don't know.
Q. Are you sure the paper he delivered to me, the contents of paper, are you sure you know?
A. No, because I didn't read it.
Q. So you are not sure the paper he deliver to me was some pleadings, petitions, or amendments, or you are not sure, are you?
A. I'm sure it said "order", and I'm sure that it said "Patsy Thomas v. Dr. Hsu."
Q. How did you know whether it was order if you didn't see that?
A. I beg your pardon?
Q. You said, in your testimony in previous case
A. Right.
Q. You said you see some kind of paper similar to an order.
A. I was showed an order, and I was asked if this was similar, and I said "Yes, this is similar to the one I saw."
Q. But you said you didn't read it.
A. I did not read it all verbatim, no.
Q. You didn't see the letter "order," did you? You didn't see the "order"?
A. If I am not mistaken, I did see the letter order up at the top.
Q. What did the order say?
A. All the other things I saw was "Dr. Hsu v. Patsy Thomas."
Q. So, it could have been other pleadings, or other paper too?
A. I didn't think the lawyer had any reason to tell me otherwise.
Q. And when you saw me over there that morning, when he serve paper to me, did he serve to me paper like this or
A. He handed it to you like this.
Q. Open or closed?
A. Open.
Q. And you say I put in pocket?
A. I did not say it.
Q. Did you know what I did with the paper?
A. I saw you take off your glasses and read the order, and I saw you, if I'm not mistaken, put it on a stack of papers that you had before you.
Q. Tell me, you spend so much time at my building at Northwest, 200016th Street, 1621 T Street, you just did a favor without a reward?
A. I thought at the time you were going to correct the violations, because we have a lot of them in my area.
Q. But you said you have never done such a favor to anyone else.
A. I've done favors before, but not on that scale, that's true.
Q. That's a big scale.
A. Well, it was out of the ordinary, because I never had that many violations before.
DR. HSU: That's all, Your Honor.
RECROSS EXAMINATION
BY DR. HSU:
Q. Mr. Johnson, did you say you went there, went to the different apartments, and find out what the repair work, so forth, and you talk to my workmen?
A. That's correct.
Q. In that area where you are not assigned to; correct?
A. That's correct.
Q. Why didn't you do the same thing to my workmen in the area that you were assigned to? You were assigned to Southeast, weren't you?
A. Yes.
* * *
Q. Then why didn't you do the same thing to the buildings and all my workmen, and everything, in the area . . . where you are assigned to you are obligated to do something for the D.C. Government? Why didn't you do that?
A. Because you never, you know, you never said anything about the fact that you *478 wanted me to do it. At the time had you said you needed someone to assist you over there to abate the violations, I would have been glad to help you.
Q. So, you listen to me then?
A. I listened to you?
Q. Right. Because I did not tell you that, you did what I told you, and you did not do it if I did not tell you; is that correct?
A. That's not true. There was a difference. There is a difference.
First off the difference is that you asked me to go to the Northwest place.
Q. You went.
A. Because you wanted to correct the violations.
Q. You went.
A. And I went.
Q. But the Government asked you to do something at Southeast, wasn't it?
A. That was my primary responsibility, yes.
Q. Then why didn't you do the same thing the way you did in Northwest, do the same thing in Southeast?
A. You weren't doing anything in Southeast. I could not do what you would not do.
Q. Let me ask you another location. One evening about six o'clock when you were at 1621 T Street, and I was at 2000-16th Street, and you drove your car, you came 2000-16th Street to see me, do you know why you were working 1621 T Street, and then you come over to 2000-16th Street to see me?
A. I don't ever remember seeing you at the buildings at all.
Q. But you say you have never seen me in my own property, 1621 T Street and 2000-16th Street?
A. No, I don't believe I ever have.
Q. Within the two weeks period.
A. That's correct.
Q. But you say my manager, Reverend Dennis, painter every day.
A. When I was there, yes.
Q. And if I can make your memory refresh you, you went there that evening, you said, "Dr. Hsu, I'm short on money today. Will you give me something for this?" Did I give you three twenty dollar bills, sixty dollars that day?
A. Dr. Hsu, I don't ever recall you ever being in that building while I was there, and certainly that didn't occur.
Q. 2000-16th Street. You went there from 1621 T Street to 200-16th Street. You knew you found out from my manager, and you come to see me, and then I ask you
A. Dr. Hsu, that's not true.
DR. HSU: That's all, Your Honor.
NOTES
[*] This case was argued on January 28, 1981, and subsequently the record was remanded to the trial court for further consideration. The trial court filed supplemental findings and conclusions on May 28, 1981, whereupon this court, on June 24, 1981, directed the parties to file supplemental memoranda.
[**] Judge Gallagher was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on February 27, 1981.
[1] The government concedes the correctness of the court's ruling that the hearsay exception for past recollection recorded is not available to this witness since the court found incredible the witness' assertion that his present recollection is exhausted.
[2] We append the complete cross and re-cross examination conducted by appellee of the witness.
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Countrywide Home Loans, Inc. v Harris (2018 NY Slip Op 04451)
Countrywide Home Loans, Inc. v Harris
2018 NY Slip Op 04451
Decided on June 14, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 14, 2018
Richter, J.P., Gische, Andrias, Kapnick, Singh, JJ.
381387/08 6903NA 6903N
[*1] Countrywide Home Loans, Inc., Plaintiff-Respondent,
vDarek J. Harris, et al., Defendants, Gonzalo Dunia, Intervenor Defendant-Appellant.
Law Office of Carl E. Person, New York (Giancarlo Malinconico of counsel), for appellant.
Mavrides, Moyal, Packman & Sadkin, LLP, Lake Success (Erick R. Vallely of counsel), for respondent.
Orders, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about May 24, 2017, which, to the extent appealed from as limited by the briefs, denied intervenor defendant Gonzalo Dunia's motion to dismiss the complaint, and granted plaintiff's motion for summary judgment, striking Dunia's answer, unanimously affirmed, with costs.
The affidavit of the original plaintiff's (Countrywide Home Loans, Inc.) Assistant Secretary, asserting that she had reviewed the loan file, which was kept in the ordinary course of its business, and that Countrywide was the assignee of the note and mortgage from the original lender, Hogar Mortgage and Financial Services, Inc., and that Countrywide possessed the note and mortgage prior to commencement of the action, sufficiently established the admissibility of the note, and Countrywide's standing to commence the action. This, coupled with the documented assignments from the original lender to the instant plaintiff-assignee Solo Group LLC Series 9, and the affidavit of Solo Group's Managing Member, Matthew Solof, averring that he had reviewed the loan files for the borrower, which were kept in the ordinary course of its business, and that Solo Group is in possession of the original note since the commencement of the action, either directly or through its assignors, established the plaintiff's standing and legal capacity to sue upon the note and mortgage (see Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 [1st Dept 2012]; Bank of Am., N.A. v Brannon, 156 AD3d 1, 8 [1st Dept 2017]; CPLR 4518[a]).
We have examined Dunia's remaining arguments, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 14, 2018
CLERK
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612 P.2d 520 (1980)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Joe Manuel ESTORGA, Defendant-Appellant.
No. 79SA255.
Supreme Court of Colorado, En Banc.
June 9, 1980.
As Modified on Denial of Rehearing June 23, 1980.
*522 J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for defendant-appellant.
Frey & Huisjen, John P. Frey, Fort Collins, for plaintiff-appellee.
LOHR, Justice.
The defendant, Joe Estorga, was convicted of sexual assault on a child (section 18-3-405, C.R.S.1973) following a jury trial. The defendant appealed, and the case was subsequently transferred from the court of appeals to this court pursuant to section 13-4-110(1)(a), C.R.S.1973. We reverse and remand for a new trial.
The victim of the sexual assault was a ten-year-old girl who was mentally retarded to some degree. In March 1976 her family moved into an apartment building which was managed by the defendant. The defendant and his family resided in that building. The victim became friendly with the defendant's wife and children and visited them frequently. In early February 1977 the defendant and his family moved to a house and the defendant no longer managed the apartment building.
After the defendant moved, the victim visited with the defendant's family on four or five occasions. The majority of the visits occurred at the suggestion of the defendant, although the victim's mother, at the request of the victim, initiated at least one of the visits. On July 11, 1977, the defendant attempted to persuade the victim to visit him. Her mother told her she could go with the defendant, but the victim appeared frightened and said she did not want to go with him. She remained at home and on the next morning indicated to her mother that the defendant had sexually molested her on previous visits. Her mother then had her examined by a doctor. The doctor's examination indicated that she had sustained penetration to the vagina. The victim's mother then informed the police of the alleged crime. Thereafter, the district attorney filed an information charging the defendant with sexual assault on a child "between January 1, A.D., 1977, to [sic] July 12, A.D., 1977."[1]
Defendant has advanced several grounds for reversal. We will first consider the issue which we find necessitates reversal and will then address defendant's other arguments to guide the trial court on remand.
I.
During the People's case, three witnesses testified concerning the alleged sexual assaults. The victim testified in a very general manner that the defendant had subjected her to several different types of sexual contact, but at no time indicated what had transpired on any particular occasion. There was also testimony by the mother that the child had been with the defendant on four or five occasions and that the child *523 later indicated that she had been sexually molested by the defendant. There was no testimony by the mother that a specific act had occurred during any particular visit. In addition, a police officer testified that, after he had described various acts of sexual contact to the defendant in general terms, the defendant admitted that he had engaged in such acts with the victim. However, the officer further testified that the defendant refused to explain any details of any particular transaction. At the close of the People's case, the defendant moved that the court order the People to elect a specific instance of sexual assault and to rely on that instance for conviction. The court denied the defendant's motion. We hold that this denial constituted reversible error.
This court held in Laycock v. People, 66 Colo. 441, 182 P. 880 (1919), that where there is evidence of many acts, any one of which would constitute the offense charged, the People may be compelled to select the transaction on which they rely for a conviction. The People are not required to identify the exact date of the offense, but they must individualize and select a specific act. The Laycock rule requiring a selection of a certain act has been affirmed on several occasions. Shier v. People, 116 Colo. 353, 181 P.2d 366 (1947); Wills v. People, 100 Colo. 127, 66 P.2d 329 (1937); Schreiner v. People, 95 Colo. 392, 36 P.2d 764 (1934).
The important reasons for requiring election of a specific act were succinctly stated in Burlison v. State, 501 S.W.2d 801 (Tenn.1973). The Tennessee Supreme Court stated that such an election enables the defendant to prepare and make his defense to a specific charge, and assures that some jurors do not convict on one offense and others on a separate offense.[2] We adopt this rationale.
The error in not requiring the People to select a specific act was compounded when the court instructed the jury that they could find the defendant guilty if they found that the evidence showed that the crime had occurred at any time within three years prior to the filing of the information. Such an instruction is proper if evidence of only one transaction is admitted and there is some question as to the date of the incident. In such a situation, the jury may find the defendant guilty if it finds that the specific incident occurred within three years of the filing of the information.[3]Albritton v. People, 157 Colo. 518, 403 P.2d 772 (1965); see Laycock v. People, supra. This court held in Eby v. People, 63 Colo. 276, 165 P. 765 (1917), that it was reversible error to give such an instruction if there was evidence of more than one transaction and there could be some doubt as to which transaction the jury relied upon for conviction. Under the circumstances of this case, it was reversible error to give such an instruction.
II.
Defendant contends that the trial court committed reversible error by denying the defendant's motion for psychological evaluation of the victim. We disagree. In People v. King, 41 Colo.App. 177, 581 P.2d 739 (1978), the court of appeals held that such an examination should be ordered only when there is a compelling reason for it and that the ordering of such an examination is within the discretion of the trial court. It further stated that the court must "balance the possible emotional trauma, embarrassment or intimidation to the complainant against the likelihood of the examination producing material, as distinguished from speculative, evidence." 41 Colo.App. at 179, 581 P.2d at 741. In the instant case, the only evidence presented with respect to the defendant's motion for psychological evaluation was the testimony of the victim's mother. The mother testified that the victim was then ten years of age, had no trouble talking with people, was *524 mentally retarded to a certain degree, had attended special education classes since entering kindergarten, and was in the highest part of her special education class. Based upon this record we find that the court did not abuse its discretion in denying the motion for psychological evaluation.[4]
III.
Defendant next argues that the court improperly denied his motion to suppress inculpatory statements which were made at or about the time of his detention and arrest. We disagree. It is undisputed that the defendant voluntarily came to the police department at the request of a police officer and that, upon arrival at the police department, the Miranda[5] rights were read to him. He then signed a waiver of those rights and proceeded to make inculpatory statements. The defendant alleges that the statements he made following his waiver should not have been admitted as the waiver was not voluntarily made, because he was extremely frightened and confused. He testified that he requested an opportunity to consult with counsel but was advised by a police officer that counsel would be appointed for him when he appeared in court. The police officer testified that the waiver was voluntary and that there was no request for counsel. The trial court resolved the conflict in the evidence against the defendant. The motion to suppress was properly denied.
IV.
The defendant urges that the trial court committed reversible error in finding the child victim competent to testify; allowing the child to testify; and then refusing an instruction tendered by the defendant advising the jury to weigh the testimony of the child with caution. We do not agree with these assertions. Following a competency examination in which the child was questioned by the trial judge and counsel for both parties, the court found that the child was competent to testify. We have previously held that, if the court can determine that the witness is able to observe and relate facts accurately and understands the moral obligation to tell the truth, she is competent to testify. Marn v. People, 175 Colo. 242, 486 P.2d 424 (1971).[6] The trial court made findings with respect to these standards in determining that the child was competent to testify. These findings are supported by the record. The determination of competency is addressed to the discretion of the trial court and, absent an abuse of discretion, the court's ruling will not be disturbed on review. Id.; Wesner v. People, 126 Colo. 400, 250 P.2d 124 (1952) (involving a seven-year-old witness). We find no such abuse.[7]
We also conclude that the court did not abuse its discretion in refusing defendant's tendered instruction to weigh the evidence of the victim carefully. A general instruction on witness credibility was given which sufficiently listed factors for the jury to consider in weighing all evidence. It was within the trial court's discretion to refuse a specific instruction which might have unnecessarily *525 emphasized particular evidence. People v. Cunningham, 194 Colo. 198, 570 P.2d 1086 (1977). Again, we find no abuse of discretion.
V.
The defendant next challenges the constitutionality of section 18-3-408, C.R.S. 1973, which forbids the giving of a jury instruction that a charge such as the one in this case is easy to make but hard to defend against (the traditional "Lord Hale" instruction). The defendant contends that section 18-3-408, C.R.S.1973, violates the constitutional requirement of separation of powers (Colo.Const. art. III) by interfering with the rulemaking power of the court established in Colo.Const. art. VI, § 21. This court specifically upheld the constitutionality of the statute against a similar attack in People v. Fierro, Colo. 606 P.2d 1291 (1980).
VI.
Defendant's final ground for reversal involves the court's refusal to permit defendant to introduce testimony which would have allegedly impeached the victim's prior statements, on the basis that the defendant had not followed procedures prescribed in section 18-3-407, C.R.S.1973 (now in 1978 Repl. Vol. 8). Because a new trial is necessary and the issue may not arise on retrial, we choose not to consider whether the trial court's ruling on that matter was correct.
Judgment reversed and cause remanded for a new trial.
LEE, J., does not participate.
NOTES
[1] The pertinent portion of the information reads "[t]hat between January 1, A.D., 1977, to [sic] July 12, A.D., 1977, in the County of Larimer and State of Colorado, JOE MANUEL ESTORGA, not the spouse of the victim, . . . did unlawfully and feloniously subject said victim to a sexual contact when said victim was less than 15 years old and said defendant was at least 4 years older than said victim . . . ."
[2] The Tennessee Supreme Court also mentions that the election protects the defendant from double jeopardy. That reason is not applicable under the facts of the instant case.
[3] Section 16-5-401, C.R.S.1973 (1978 Repl. Vol. 8) requires that an action based on sexual assault on a child be instituted within three years after the commission of the offense.
[4] If the motion for psychological examination is renewed in preparation for a new trial, the trial judge must exercise his discretion, applying the standards discussed herein to the facts developed in any hearing on that motion. We cannot and do not indicate any opinion as to how the trial court should rule on such a motion.
[5] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[6] In Marn v. People, supra, the witnesses were of the ages of nine and ten. The court made no distinction between them in discussing the applicability of C.R.S.1963, 154-1-6, which provides in pertinent part:
"(1) The following persons shall not be witnesses:
. . . .
"(b) Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly."
C.R.S.1963, 154-1-6, is currently codified at section 13-90-106, C.R.S.1973.
[7] On retrial, competency of the victim should be determined in light of the record there developed.
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NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ANTHONY LATRAIL WOODS, Appellant.
No. 1 CA-CR 12-0528
FILED 03/11/2014
Appeal from the Superior Court in Maricopa County
No. CR2012-100872-001
The Honorable Robert L. Gottsfield, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
STATE v. WOODS
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.
K E S S L E R, Judge:
¶1 Anthony Latrail Woods (“Woods”) appeals from his
conviction and sentence for aggravated assault, a class 4 felony, with one
historical prior felony conviction and aggravating factors. Counsel for
Woods filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Raising only
the issue of whether the portion of the sentencing order that requires
Woods to pay for his DNA testing is proper, counsel requests that this
Court search the record for fundamental error. Woods was given the
opportunity to but did not file a supplemental brief in propria persona. For
the reasons that follow, we affirm Woods’ conviction and sentence in part,
but vacate the portion of the sentencing order that requires Woods to pay
for his DNA testing.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2011, the victim was living at an apartment complex with
her girlfriend. The victim’s acquaintance, J., lived in the same complex
with her boyfriend, Woods’ brother. J. contacted the victim, and asked
her to help J. move.
¶3 On her way to J.’s apartment, the victim encountered Woods
in the parking lot and asked about J.’s property. Woods became angry
and, as the victim turned to leave, punched her on the right side of her
face—breaking her jaw in two places—then drove away. The victim
required surgery, resulting in her jaw being wired shut for approximately
two and one-half months.
¶4 The victim’s girlfriend identified the license plate of the car
Woods used to flee the scene, and later both the victim and her girlfriend
identified Woods in a photo lineup. Subsequently, Woods was indicted
on one count of aggravated assault, a class 4 felony. The State also filed an
allegation of historical priors for sentence enhancement.
2
STATE v. WOODS
Decision of the Court
¶5 An eight-person jury found Woods guilty of aggravated
assault and, as an aggravating factor, found that he caused the victim
physical, emotional, or financial harm. During sentencing, the court
found that Woods had one historical prior felony conviction and one other
felony conviction older than ten years. The court sentenced Woods to the
maximum sentence of six years based on the sentence enhancement and
credited him with 220 days of presentence incarceration. Woods also
stipulated to $20,000 in restitution to the Maricopa County Victim’s
Compensation Fund and $16,679.94 to the victim.
¶6 Woods timely appealed, and we have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -
4033(A)(1) (2010).
DISCUSSION
¶7 In an Anders appeal, we review the entire record for
fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391
(App. 1993). Fundamental error is “error going to the foundation of the
case, error that takes from the defendant a right essential to his defense,
and error of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982
(1984)). To obtain a reversal, the defendant must also demonstrate that
the error caused prejudice. Id. at ¶ 20.
¶8 After careful review of the record, we find no grounds for
reversal of Woods’ conviction or modification of his sentence, except the
portion that requires him to pay for his DNA testing. The evidence
supports the verdict, the sentence imposed was within the sentence range
for Woods’ offense, 1 the proceedings were held in accordance with the
Arizona Rules of Criminal Procedure, and Woods was present and
represented at all critical stages of the proceedings below.
A. Sufficiency of the Evidence
¶9 On review, we view the facts in the light most favorable to
sustaining the jury’s verdict and resolve all inferences against the
defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App.
1998). “Reversible error based on insufficiency of the evidence occurs
1 A.R.S. § 13-703(B)(2), (I) (2010).
3
STATE v. WOODS
Decision of the Court
only where there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).
¶10 There is sufficient evidence to support Woods’ conviction for
aggravated assault. To obtain a conviction for aggravated assault, the
State must prove that a defendant intentionally, knowingly, or recklessly
caused a physical injury to the victim and that the assault was committed
by any means of force that caused a fracture of any body part. A.R.S. §§
13-1203(A)(1) (2010), -1204(A)(3) (Supp. 2013). 2 Here, the victim testified
that Woods punched her in the face and broke her jaw after she turned to
walk away. Additionally, the victim’s girlfriend testified that she heard
Woods and the victim arguing and then found the victim on the ground
with a broken jaw. A police officer testified about the victim’s condition at
the scene and in the hospital, and a medical expert testified that the
victim’s jaw was broken in two places and required approximately two
and one-half months of treatment and follow-up.
¶11 There is also sufficient evidence that Woods caused the
victim physical, emotional, or financial harm. During the aggravation
trial, the victim testified about medical bills she accrued as a result of the
injury, the emotional toll of the injury, and financial harm to her credit
and her resulting inability to work.
B. Closing Arguments at Sentencing
¶12 During the sentencing hearing, the prosecutor commented
on his personal belief in Woods’ guilt and his personal belief that defense
witnesses lacked credibility. Although such commentary is inappropriate,
we presume the judge knows the law and did not consider these
statements when determining Woods’ sentence. Moreover, prosecutorial
misconduct is reversible error only when it is so pronounced and
persistent that it permeates the entire trial. State v. Edmisten, 220 Ariz. 517,
524, ¶ 23, 207 P.3d 770, 777 (App. 2009). There is no evidence that the
prosecutor’s statements here, which were made outside the presence of
the jury and after the verdict was rendered, permeated the entire trial.
Accordingly, we find no reversible error.
2 We cite the most recent versions of statutes when no alterations material
to this decision have since occurred.
4
STATE v. WOODS
Decision of the Court
C. DNA Testing
¶13 As part of Woods’ sentence, the trial court required him to
pay for his DNA testing pursuant to A.R.S. § 13-610 (Supp. 2013). After
the court so ruled, we held in State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307
P.3d 35, 39 (App. 2013), that there is no basis under that section to require
a convicted defendant to pay the cost of his DNA testing. Therefore, we
vacate the portion of Woods’ sentence that requires him to pay for his
DNA testing. See id.
CONCLUSION
¶14 For the foregoing reasons, we affirm Woods’ conviction and
sentence, but modify his sentence by vacating the portion that requires
Woods to pay for his DNA testing. Upon the filing of this decision,
counsel shall inform Woods of the status of the appeal and his future
appellate options. Defense counsel has no further obligations unless,
upon review, counsel finds an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Woods shall have thirty
days from the date of this decision to proceed, if he so desires, with a pro
per motion for reconsideration or petition for review.
:gsh
5
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267 Cal.App.2d 297 (1968)
CALIFORNIA COMPENSATION & FIRE COMPANY, Petitioner,
v.
WORKMEN'S COMPENSATION APPEALS BOARD and MERCED C. AGUILAR, Respondents.
Civ. No. 11893.
California Court of Appeals. Third Dist.
Nov. 8, 1968.
Hanna & Brophy and F. Clinton Murphy for Petitioner.
Eugene C. Treaster, N. Michael Rucka, Everett A. Corten and Selma Mickels for Respondents.
PIERCE, P. J.
Petitioner is the compensation carrier of Capitol Auto Paint Plating Co. Merced Aguilar, an employee of Capitol, filed an application before respondent board for a back injury claimed to have been incurred during and in the course and scope of his employment. An award was made for temporary disability. It directed reimbursement for self-procured medical care and for medical expenses. A petition by the carrier for reconsideration was denied. Thereafter the carrier petitioned this court for a writ of review. In the points and authorities accompanying that petition the following issue, among others, is urged: "Is it proper to allow a doctor a fee as an expert witness where testimony relates to the reasonableness of his charges for examinations and reports?" We granted a writ of review limited to that one issue.
After our examination of the record we reach the conclusion that the question as stated by the petitioning carrier is misleading. It implies that the doctor in question was produced as a witness for the applicant solely or primarily to justify the reasonableness of his charges for examination and reports and that the board allowed a fee for medical testimony to him for that reason. [1a] The facts are otherwise. The record shows his testimony which the board properly found to be necessarily and reasonably given. The matter of his fee was not even mentioned until cross-examination. We will therefore affirm the board's order.
It will be unnecessary to extend this opinion to include a comprehensive recital of the facts. The doctor in question is Dr. Robert F. Fischel, a chiropractor. He had not treated Aguilar for his back injury but had examined him and had *299 filed reports of his diagnosis. [fn. 1] He described treatment given by an attending practitioner [fn. 2] and made evaluations. Petitioner, prior to the hearing, had retained as an examining doctor an orthopedist, W. P. Magan, Jr., M.D. That doctor had also filed a report. In that report the following statement is contained: "It is my opinion without any question this patient should be subjected to myelography. It seems rather foolish to continue on treating him with something [fn. 3] which does not appear to be of much if any help. Under these circumstances I have advised him and am advising yourselves [i.e., petitioner's attorneys] that he should have a myelogram with further evaluation at this time." That report was not received until several days before the hearing. The employee's attorneys contend that it allowed no time for Dr. Fischel to make a further examination of the patient and thereafter prepare and submit a written report. (He did, however, make the examination.) The purpose of calling Dr. Fischel, counsel states, was not to justify his fee but to furnish justification for continuance of the previous chiropractic treatment described by Fischel as "conservative" which had been characterized by Dr. Magan as "foolish." That the stated purpose was also the actual purpose is confirmed by the fact that, as stated, there is nothing whatever in Dr. Fischel's direct testimony which relates directly or indirectly to his fee. [fn. 4] On cross-examination *300 defense counsel questioned Dr. Fischel's education and training. He also had the doctor testify at length regarding the procedures involved in the diagnosis of disc problems. The rest of the cross-examination was directed to the matter of the fees charged by Dr. Fischel for chiropractic examinations, X-rays, and his reports--none of which fees were shown to be materially different from the minimum standard fee schedule. Incidentally, Dr. Magan was produced as an expert by petitioner. His testimony followed Dr. Fischel's (in point of time).
The board found inter alia: "Applicant reasonably and necessarily incurred expense of $252.50 for reports and testimony of Dr. Robert F. Fischel." The record shows without conflict that Dr. Fischel's fee for his examination, X-rays and reports had been $152.50. That meant that $100 had been included as the doctor's fee for testimony.
[2a] Labor Code section 4600 authorizes reimbursement to the employee "for expenses reasonably, actually, and necessarily incurred for X-rays, laboratory fees, medical reports, and medical testimony to prove a contested claim." (Italics ours.) Labor Code section 4600 also includes a provision: "Expenses of medical testimony shall be presumed reasonable if in conformity with the fee schedule charges provided for impartial medical experts appointed by the administrative director."
[1b] At oral argument we were informed (and the statement was not disputed) that when a doctor testifies it is assumed he loses at least one- half day from his practice and that $100 is therefore deemed a reasonable minimum fee.
California Administrative Code, title 8, Rules of Practice and Procedure of the Workmen's Compensation Appeals Board, rule 10635, provides: "When the evidence adduced in a cause or proceeding demonstrates that expenses, the subject of Labor Code section 4600, were incurred, recovery thereof will be allowed as they appear, unless: (1) Proof of unreasonableness is entered; or (2) The record of said cause or proceeding makes manifest the unreasonableness of an expense or the expenses claimed."
[2b] Labor Code section 3209.5 provides in material part: "Medical ... treatment ... includes ... services ... by *301 ... chiropractic practitioners as licensed by California State law and within the scope of their practice. ..." Section 3209.5 was enacted in 1945 and has not been amended. (See Stats. 1945, ch. 629.)
There is no express statutory statement including the testimony of a chiropractor as being reimbursable. It is to be noted, however, that the inclusion of any allowance for medical testimony under Labor Code section 4600 is a comparatively recent addition to the list of reimbursable items included therein. (Stats. 1959, ch. 1189, 9, p. 3278.) We can conceive of no reason why the Legislature would intend to make any distinction between an allowance for the testimony of members of the several schools of practitioners whose reports within the field of their competence are permitted to be considered by the board. [1c] Its only limitation is that reimbursement be allowed for testimony which is "reasonably, actually, and necessarily incurred." Here the board expressly found that Dr. Fischel's testimony was within that limitation. Also there was no substantial showing made that the testimony given by the chiropractor was in a field beyond or outside the scope of his training or knowledge. Upon this record and under the circumstances described we hold the finding was reasonable. [fn. 5]
The order of the board is affirmed. This court finds, pursuant to Labor Code section 5801, there was no reasonable basis for this petition. Therefore the cause is remanded to the Appeals Board with direction to make a supplemental award awarding to the attorney for Merced C. Aguilar a reasonable attorney's fee for services in connection with the defense of the petition for writ of review. Such fee shall be in addition to the amount of compensation otherwise recoverable and shall be paid as part of the award by the party liable to pay such award.
Friedman, J., and Regan, J., concurred.
NOTES
[fn. 1] 1. He stated Mr. Aguilar had a discogenic disease related to a work-induced injury. There was no conflict in the testimony or reports of the doctors representing the applicant and the carrier, respectively, regarding that diagnosis.
[fn. 2] 2. Dr. Fischel had not treated Aguilar. Aguilar's employer had referred him to a Dr. Steiner, another chiropractor. Dr. Fischel, like the carrier's expert, was called only for examination and report.
[fn. 3] 3. The "something" to which Dr. Magan obviously referred was the chiropractic treatment which Aguilar had been receiving from Dr. Steiner.
[fn. 4] 4. Dr. Fischel's testimony on direct examination covered his qualifications as a "chiropractic orthopedist." He stated that "less than 20 per cent" of his practice involved treatment in workmen's compensation matters. He had examined the reports of Dr. Steiner (applicant's treating doctor) and of Dr. Magan. (The latter report had not been seen by him until two days before the hearing.) He testified that the patient had responded well to Dr. Steiner's treatment; that subjective complaints were minimal when Aguilar was not exposed to heavy work. Dr. Fischel does not make myelographic studies. When such studies are indicated he refers patients to neurosurgeons or orthopedic surgeons. Because of possible serious side effects from myelograms he did not believe that that treatment should be recommended unless the need for such surgery was imminent. He said that all of the medical reports regarding the patient had agreed as to the diagnosis (work induced discogenic problems); also the reports had agreed in all other respects excepting that Dr. Magan did not share the opinion of the other two practitioners that manipulative treatment would help. Dr. Fischel pointed out, however, that Dr. Magan had given his report before Aguilar had received recent treatment from Dr. Steiner, and he added: "And I'm quite certain that in his present condition no one would recommend ... surgery should be done at this time, because he's much improved." (Italics ours.)
[fn. 5] 5. It is true that during the course of his discussion the referee made a statement as to a reason why Dr. Fischel's testimony was necessary; that it was "to defend the reasonableness of his charges which have been placed in issue by the defendant." The referee, obviously, was speaking retrospectively. We cannot and do not substitute this observation by the referee as a finding in lieu of the formal finding actually made.
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In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00353-CR
________________________
TERRY FIELDER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 361st District Court
Brazos County, Texas
Trial Court No. 11-02991-CRF-361; Honorable Steve Smith, Presiding
December 8, 2014
ORDER OF SEVERANCE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On June 16, 2011, pursuant to a single, three-count indictment in cause number
11-02991-CRF-361, Appellant, Terry Fielder, was charged with aggravated robbery,
with each count alleged to have occurred on or about April 10, 2011. The trial court
entered three separate judgments—assessing thirty year sentences ordered to run
concurrently. The judgment entered as to Count I contains an assessment of court
costs and restitution, whereas the judgments entered as to Counts II and III contain only
an assessment of court costs. Appellant filed a single notice of appeal “from judgment
rendered against him.”
Because this appeal involves three separate judgments, for purposes of clarity,
we sua sponte sever this appeal into separate cause numbers, one as to each
judgment. Henceforth, the appeal of the judgment entered as to Count I will bear
appellate Cause Number 07-13-00353-CR, whereas the appeal of the judgment entered
as to Count II will bear appellate Cause Number 07-14-00423-CR, and the judgment
entered as to Count III will bear appellate Cause Number 07-14-00424-CR. All filings,
specifically including the Clerk’s Record, Reporter’s Record and all briefing filed in
Cause Number 07-13-00353-CR shall be considered as being filed in the companion
cases.
It is so ordered.
Per Curiam
2
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2013 IL App (1st) 123663
FIFTH DIVISION
NOVEMBER 15, 2013
No. 1-12-3663
)
TEODORO RAMIREZ, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 L 6482
)
FCL BUILDERS, INC., an Illinois Corporation, ) Honorable
) Susan Zwick,
Defendant-Appellant. ) Judge Presiding.
)
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Palmer concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Teodoro Ramirez was injured while employed as a roofer for Sullivan Roofing, a
nonparty to this litigation. At the time of plaintiff’s injury, Sullivan Roofing was operating as a
subcontractor for defendant FCL Builders, Inc., the general contractor for a warehouse project.
Plaintiff filed suit against defendant, alleging that defendant was negligent and, after a jury trial,
the jury found defendant liable, awarding plaintiff damages in the amount of $1.588 million.
Defendant appeals, arguing that (1) the trial court erred in not granting judgment notwithstanding
the verdict in favor of defendant, where defendant had no liability for plaintiff’s injuries as a
matter of law; and, alternatively, (2) the trial court should have granted defendant a new trial
where the trial court improperly instructed the jury, made errors in the admission of evidence,
and failed to sanction plaintiff for several discovery violations. For the reasons that follow, we
affirm.
No. 1-12-3663
¶2 BACKGROUND
¶3 I. Complaint
¶4 On June 13, 2008, plaintiff filed a complaint against defendant; the complaint was
amended twice and it was the second amended complaint on which the parties went to trial.1 The
second amended complaint alleges that, on or before September 29, 2004, defendant was a
general contractor responsible for the design, construction, and maintenance of a warehouse
facility in Romeoville, Illinois. Plaintiff was working on the roof of the warehouse on September
29, 2004, when plaintiff and his coworkers from Sullivan Roofing were manually pushing a
“large, bulky and heavy roll of roofing membrane material” on the roof of the warehouse,
causing plaintiff’s injuries. Although plaintiff was working on the roof of the warehouse as an
employee of Sullivan Roofing, defendant “was present during the course of the construction
project, supervised and coordinated the work being done, designated various work methods,
maintained and checked work progress, and participated in scheduling the work and the
inspection thereof.” Additionally, defendant “had the authority to stop the work, refuse the work,
tools and materials, and to order changes in the work in the event that the work was being
performed in a dangerous manner or for any other reason.”
¶5 The second amended complaint alleges that, at the time of the injury, defendant, through
its agent, knew or should have known of the manner in which plaintiff’s work was being
performed and defendant had a duty to exercise reasonable care under the circumstances to
1
Plaintiff also filed suit against the property owner, but that claim was settled prior to
trial and is not part of the instant appeal.
2
No. 1-12-3663
protect the safety of plaintiff. Notwithstanding that duty, defendant was negligent in one or more
of the following ways:
“a. Failed to permit Honda [all-terrain vehicles (ATVs)] to
be used by the roofing crew to move heavy roofing materials; or
b. Allowed an improper work practice to occur as it relates
to material handling in violation of OSHA Standard 2236; or
c. Failed to place plywood planking at various locations on
the metal deck thereby allowing Honda ATV’s to be used to move
heavy roofing materials; or
d. Failed to instruct the Sullivan Roofing crew in the
recognition and avoidance of an unsafe condition as it relates to
material handling in violation of CFR 1926.21(b)(2); or
e. Failed to follow the safe customs and practices of the
construction industry in the manner in which the workers, such as
the plaintiff, were required to perform their duties; or
f. Failed to ensure handling of heavy roofing materials
were done in a reasonably careful manner.”
The second amended complaint alleges that, as a result of one or more of defendant’s acts or
omissions, plaintiff suffered injuries “of a personal and pecuniary nature.”
¶6 As an affirmative defense, defendant alleges that plaintiff had the duty to exercise
reasonable care and caution for his own safety and failed to do so in one or more of the following
3
No. 1-12-3663
ways:
“a. Failed to properly move and/or push roofing materials;
b. Failed to make a reasonable inspection of the premises
to ensure that he was familiar with the premises;
c. Failed to use appropriate methods in the moving and/or
pushing of roofing materials;
d. Performed his work in a manner in which the Plaintiff
knew, or in the exercise of ordinary care, should have known was
harmful or dangerous;
e. Was otherwise careless and negligent.”
¶7 II. Discovery
¶8 Since defendant raises several arguments concerning discovery, we relate the relevant
facts.
¶9 On August 12, 2010, plaintiff filed answers to defendant’s Rule 213 interrogatories,
disclosing his anticipated witnesses, including five Rule 213(f)(2) independent expert witnesses
and no Rule 213(f)(3) controlled expert witnesses. Ill. S. Ct. R. 213 (eff. Jan. 1, 2007). On
January 11, 2011, the trial court ordered plaintiff to answer defendant’s Rule 213(f)(3)
interrogatories by April 1, 2011. On March 13, 2011, the court entered an order that discovery
was to close on May 4, 2011. On April 5, 2011, the trial court ordered plaintiff to disclose any
Rule 213(f)(3) witnesses by April 4, 2011, with the witnesses to be deposed by May 5, 2011; the
court again ordered discovery closed on May 4, 2011.
4
No. 1-12-3663
¶ 10 On April 20, 2011, plaintiff filed supplemental Rule 213 disclosures, including an
additional Rule 213(f)(1) lay witness and one Rule 213(f)(3) controlled expert witness, Dennis
Puchalski, a construction safety consultant.
¶ 11 On September 16, 2011, plaintiff’s current attorneys filed an appearance as additional
attorneys of record and, in October 2011, plaintiff’s current attorneys replaced the former
attorneys as plaintiff’s counsel.
¶ 12 On February 21, 2012, the attorneys for the parties certified that all fact, medical, and
opinion discovery was complete; that all deposition of Rule 213(f)(1), (2), and (3) witnesses had
been taken or waived in writing or in a court order; that all necessary evidence depositions had
been taken; and that no dispositive motions were pending or would be filed by any party prior to
trial. On March 8, 2012, the case was set for trial on May 3, 2012.
¶ 13 On April 24, 2012, plaintiff filed a notice of videotaped evidence deposition for Jaime
Rojas, which would take place via telephone on April 26, 2012, since Rojas was located in
Colorado. On April 26, 2012, defendant filed an emergency motion to quash the videotaped
telephone evidence deposition. In the motion, defendant argued that two days’ notice for a
videotaped evidence deposition was insufficient and would not allow defense counsel the
opportunity to attend the deposition in person and to cross-examine the deponent in person.
Further, defendant claimed that the deponent, Jamie Rojas, had not been listed by plaintiff as a
Rule 213(f)(1), (2), or (3) witness. On the same day, the trial court denied defendant’s motion to
quash the deposition and further ordered the May 3, 2012, trial date to stand.
¶ 14 On May 8, 2012, during trial, defendant filed a motion in limine seeking to bar plaintiff
5
No. 1-12-3663
from calling David Gibson as a trial witness. The motion claimed that, on October 28, 2011,
plaintiff made an oral motion seeking to disclose an additional Rule 213(f)(3) damages witness,
which the trial court granted over defendant’s objection. Plaintiff’s disclosure of Gibson as an
additional witness “resulted in defense counsel being compelled to retain its own defense expert
on the issue of damages,” causing prejudice. On the same day, the trial court denied defendant’s
motion.
¶ 15 Defendant also filed a motion in limine seeking to bar plaintiff from calling Jaime Rojas
as a witness for three reasons: “insufficient notice of an evidence deposition, violation of the
Supreme Court 213(f)(2), and subsequently after taking the deposition learning of additional
documentation that was relevant to the functional capacity evaluation that Mr. Rojas was
testifying about on that given day.” Defendant argued that, despite plaintiff’s claim that a letter
was sent in January 2012 disclosing Rojas as a witness, defense counsel never received such a
letter. The trial court denied defendant’s motion.
¶ 16 III. Trial
¶ 17 Trial began on May 7, 2012. Evidence was presented concerning the installation of the
roof in the case at bar, as well as plaintiff’s medical history following the injury. Several
witnesses also testified about the safety of the procedures used on the roof, as well as plaintiff’s
damages.
¶ 18 A. Roofing Witnesses
¶ 19 1. Michael Sullivan
¶ 20 Michael Sullivan, who was employed by Sullivan Roofing and was the brother of the
6
No. 1-12-3663
company’s owner, was Sullivan Roofing’s safety director in September 2004. Sullivan testified
that Sullivan Roofing was in the business of installing commercial roofs, including “ballasted
roofing which has rock on top to hold [it] down”; Sullivan estimated that 30 to 40 roofers would
have been employed by Sullivan Roofing in 2004, and it was typical for Sullivan Roofing to have
multiple jobs at the same time. In 2004, defendant, the general contractor, hired Sullivan
Roofing as a subcontractor on a project called the “Wilton Industries Project” in Romeoville (the
Wilton project). The Wilton project was to be a big-box warehouse with a ballasted roof
“somewhere in the vicinity” of 450,000 square feet, which was “a large roof, but it wasn’t a huge
roof.” The roof on the Wilton project was pitched, or slightly inclined.
¶ 21 Sullivan testified that, prior to beginning work on the Wilton project, Sullivan Roofing
received a “welcome subcontractor type letter” from defendant, in which defendant indicated that
it was “committed” to Sullivan Roofing’s safety and wanted to provide a workplace “reasonably
free of recognized safety hazards,” which Sullivan testified was “very common” on a project of
the scope of the Wilton project. The letter further stated that “safety and safety awareness is a
two-way street,” which Sullivan agreed with, testifying that “[e]verybody on site is responsible
for safety,” including the general contractor, subcontractor, and employees. Sullivan also
testified that, on the Wilton project, defendant had certain “intolerable offenses,” which meant
that “generally the subcontractor has to behave in a certain fashion or they’re gone.”
¶ 22 Sullivan also explained the process of laying a ballasted roof such as that installed on the
Wilton project. First, panels of insulation were placed on top of metal decking; the panels were
four feet by eight feet and weighed approximately four pounds. The panels were wrapped in
7
No. 1-12-3663
bundles of 23 and hoisted to the roof by a “boom truck,” essentially, a big truck with a crane.
The materials and tools, including insulation, rolls of rubber membrane, and ATVs, were placed
along the perimeter of the roof, at least six feet from the edge; it was Sullivan Roofing’s decision
where to place the materials and Sullivan testified that it would not be unusual to have delivery
of roofing materials staggered over several weeks. The insulation was placed, beginning at one
corner of the building, enough to cover an area of 50 feet by 200 feet. A sheet of rubber
membrane was then placed on top of the insulation; the entire deck was not laid with insulation
before beginning to place the rubber membrane because, otherwise, it would be blown away by
wind. After the rubber membrane was placed, stones would be spread on top of it; initially, rows
of stone would be placed to keep the insulation and rubber in place in case of wind, which would
be filled in later with more stones. The bundles of insulation could be pushed by two workers
over short distances.
¶ 23 Sullivan testified that “once in awhile [sic]” ATVs would assist in rolling out the rolls of
rubber membrane: “It wasn’t always. When the Hondas[2] were available or they came around,
sometimes they would help push the rolls over, yes.” Sullivan testified that the ATVs would also
be used after the rubber membrane was placed, to spread the gravel on top of the rubber
membrane. He could not recall the size of the rubber membrane rolls but, on a roof the size of
the Wilton project, “a lot of times we use 50 by 200s.” The rolls, when wrapped, were
approximately 2.5 feet high and 10 feet wide and would weigh between 1,500 to 2,000 pounds
depending on the size. When moving rolls of that size and weight at distances of over 30 feet,
2
Throughout the trial, witnesses used the terms “ATVs” and “Hondas” interchangeably.
8
No. 1-12-3663
“[i]t all depends on how many guys were available. Sometimes we had eight guys pushing the
roll. Sometimes there would be less guys, and the Honda would come in between everybody and
help push it.” Sullivan testified that it would be “very rare” for workers to physically push the
rubber membrane more than 300 feet because “[t]hose [rolls] are positioned so that we don’t
have to move them that far when we load the job.”
¶ 24 Sullivan testified that, when roofing materials were hoisted onto the roof of the Wilton
project, the materials were “dimpling” or denting the deck, and a solution needed to be provided
by “the powers that be.” Sullivan could not recall who informed him of the issue, “but I was
called, and it was said we have an issue”; Sullivan later testified that “I believe John [Zelasco3]
called me” and informed him of the problem with the decking. Sullivan testified that ATVs were
used on the Wilton project and were only temporarily stopped: “That was a decision made at the
point in time all this happened, to stop everything, and we had to figure out a way that we could
use them again and get things rolling and be able to load -- so we wouldn’t damage the deck.” A
meeting was held to discuss the solution to the problem, at which Sullivan and Dave Majestic,
also a Sullivan Roofing employee, were present, but Sullivan could not recall whether John
Zelasco was present on behalf of defendant: “I don’t recall if John was there. John wouldn’t
have been in that discussion until we figured out what we wanted to do and then we would pose
that to him.”
¶ 25 Sullivan testified that Zelasco had the authority to stop work on the project if he observed
unsafe practices and further testified that “FCL is very strict on safety. So that’s more -- you
3
Zelasco was defendant’s superintendent on the Wilton project.
9
No. 1-12-3663
know, anything that happens, John has the right. He runs the job. He has the right to stop.” If
Zelasco observed someone performing his job in an unsafe manner, Zelasco would have the right
to stop that work and then would contact Sullivan. Zelasco would also coordinate the work and
monitor the work of the subcontractors. However, Sullivan testified that defendant was not
involved in the means and methods of Sullivan Roofing’s work on the Wilton project.
¶ 26 At the meeting, they “came up with a plywood runway solution,” which would use a
plywood runway system to distribute the weight of the heavy roofing materials and permit the
ATVs to be used. Sullivan testified that “[w]e made the decision to use the plywood runway and
posed that to John to help to protect the roof. That was our decision.” Sullivan further testified
that “after a conference between John and the powers that be at Sullivan, that was a solution that
was implemented,” and it worked to stop the dimpling.
¶ 27 Sullivan also testified to his work as safety director. Sullivan testified that, in his position
as safety director, he would visit the work site once every one to three days, for approximately an
hour; Sullivan was not on the roof on September 29, 2004. Sullivan testified that Sullivan
Roofing had a safety manual given to each of its employees and that safe material handling was
“the number one safety issue that roofers have” because “[t]here’s a lot of ergonomics to it again.
There’s a lot of bending. There’s a lot of lifting involved. There’s a lot of pushing rolls, if you
will. And everybody -- I harp constantly on lifting properly, don’t pull, you know, how to
properly lift. Constantly we go over that.”
¶ 28 Sullivan testified that he conducted “toolbox talks” once a week, which were “a topic for
the day basically. Sometimes it’s on safe lifting. Sometimes it’s on wind safety. Sometimes it’s
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No. 1-12-3663
on heat. We have all different kinds of topics that we use. And what I do is I go on the roofs, I
go through these topics. I gather everybody together. I read them, so everybody can’t just sign.
They have to know that -- you know, what we’re doing for the day. And they sign off on that
they’ve read this and they understand what I’ve given them for the day.” Sullivan testified that
the toolbox talks were conducted by Sullivan Roofing for its employees to keep its employees
working safely. Sullivan conducted a toolbox talk on September 29, 2004, which plaintiff and
his brother Sabeno both attended, as demonstrated by their signatures. That toolbox talk was “a
safety review. It was over fall protection, material handling, MSDS sheets, electrical safety, and
fire safety.”
¶ 29 Sullivan testified that, as safety director, he did not believe it was unsafe to have a
Sullivan Roofing crew move a roll manually. Sullivan further testified that, with enough
workers, using ATVs was not safer than manually pushing the rolls of membrane: “If you had a
number of guys on there, it really wasn’t -- we’ve done that for a number of years -- I don’t know
-- safer, I wouldn’t say it’s safer. It helped us move it along quicker. *** If you have four guys
and the Honda helps, absolutely. If you have eight guys on there, it moves pretty easily.” He
acknowledged that, during his deposition, he responded that using ATVs “would help, yes.” On
recross, Sullivan clarified his testimony concerning the use of ATVs: “When we were all talking
about moving these rolls and speaking about moving them 20, 30 feet, that’s when the rolls are in
position. We use the Hondas to put the rolls in position. From the position point, when they’re
spread out on the roof because -- he is correct in saying that we -- sometimes we move the roll 2,
300 feet because of the width of the building. We have to put them in position. The Hondas are
11
No. 1-12-3663
used for that. When we have to move them in position to lay it over the insulation is when I’m
talking about pushing it 20, 30 feet. It’s not to get it off a load and then roll these things by hand
300, 400 feet. That does not -- that’s not what we do.” Sullivan further testified that it was “fair
to say” that it was “never appropriate” to move a roll of rubber membrane from one side of the
building to the other without the use of an ATV.
¶ 30 Sullivan testified that plaintiff was an employee of Sullivan Roofing and was a “great
worker” who, at one point, they were considering making a foreman. Sullivan characterized
plaintiff as reliable, dependable, honest, and very good at his job. Plaintiff was familiar with
rubber roofs and ballasted roofs, including installing thermal plastic membranes. Plaintiff was
part of Frank Pesek’s crew and worked closely with Pesek. Sullivan recalled plaintiff informing
him that he was planning to visit a doctor for his back, but denied discouraging the doctor visit or
threatening to fire plaintiff.
¶ 31 On cross-examination, defense counsel attempted to introduce an incident report
completed by Sullivan into evidence.4 Sullivan testified that plaintiff reported his back injury to
Sullivan, who filled out an incident report in his capacity as safety director; Sullivan testified that
keeping such reports was part of Sullivan Roofing’s normal course of business. Sullivan further
testified that the report was in his handwriting and bore his signature. Defense counsel then
sought to admit the report into evidence, and plaintiff’s counsel objected. The trial court
examined the document outside the presence of the jury, noting that it showed an incident date of
October 6 and the date of reporting as October 11. Further, the report indicated that the injury
4
The incident report is not included in the record on appeal.
12
No. 1-12-3663
was due to pushing bundles of insulation, not rolling rubber membrane; defense counsel
explained that “[t]hat’s exactly why I want this before the jury. Mr. Ramirez told him exactly the
opposite of what he’s claiming in this lawsuit.” The trial court summed up the defense’s theory
concerning the incident report: “It appears to me that what counsel is saying is that any injury
that occurred didn’t occur on September 29. It occurred on October 6. It didn’t occur when he
was pushing a roll, it occurred when he was pushing a bundle of insulation. *** You’re saying
based on what Mr. Ramirez told Mr. Sullivan, September 29 didn’t happen.”
¶ 32 The trial court brought Sullivan back into the courtroom for further questioning
concerning the incident report. Sullivan testified that he had an independent memory of speaking
with plaintiff about the incident that was the subject of the report, and that he recalled being on
the roof with plaintiff and Frank Pesek, the foreman, when plaintiff informed him of the incident.
He further testified that plaintiff reported the incident to him on October 11 but told him that it
had occurred on October 6. Sullivan admitted that the payroll records went to October 10 but
that the last date plaintiff was on the payroll, according to the records, was October 7. Sullivan
further admitted that it was possible that he was standing on a different roof, and not the Wilton
roof, when plaintiff informed him of the incident and that “my dates could be wrong on the
document. And I don’t know. I can’t verify that. But I remember specifically standing there
talking to him.” After Sullivan’s examination, the court sustained the objection: “The objection
as to the record itself is sustained. Whatever you choose to have him testify to as to his memory
is still of evidentiary value. But because of the lack of reliability on the dates based on the voir
dire and the *** deposition, I’m going to sustain the objection. I don’t *** find it to be within
13
No. 1-12-3663
the business records exception because of lack of reliability. The rest of the testimony is up to
you.” The court further noted: “It has to be created in an ordinary course of business and if it’s
on or about the time. That’s why they’re reliable. And what we have is that missing element. It
wasn’t created on or about the time because he says the date may be wrong and I don’t
remember.”
¶ 33 The jury was then brought back into the courtroom, and cross-examination of Sullivan
continued. Sullivan testified that, at one point during the two weeks of the Wilton project,
plaintiff approached him on the roof of the Wilton project and informed him of the accident;
Pesek was also present during the conversation. Plaintiff informed them that he was pushing a
bundle of insulation alone “and felt a twinge in his back.” Sullivan testified that pushing
insulation alone was contrary to Sullivan Roofing’s recommendations for material handling,
which required two people to push a bundle of insulation. Sullivan denied telling plaintiff not to
visit a doctor.
¶ 34 Sullivan testified that, based on the time sheets, plaintiff was working on a different
project on Monday, September 27. He was working on the Wilton project on September 28 and
29, and was working on a third project on September 30 and did not work on Friday, October 1.
¶ 35 2. David Majestic
¶ 36 David Majestic, vice president of field operations for Sullivan Roofing, testified that, at
some point during the Wilton project, he learned that there was a problem with damage to the
decking. Defendant’s superintendent, John Zelasco, placed a call to Sullivan Roofing informing
it of damage to the decking. Majestic later testified that he “received a call at some point in
14
No. 1-12-3663
time” indicating that there were issues, but “[w]ho gave me that phone call, I don’t recall that.”
The problem required the work to stop until a solution was developed.
¶ 37 Majestic testified that the decision to use plywood to solve the problem was a
collaboration between Sullivan Roofing and defendant. Majestic further testified that he was
present while the plywood was in use, although he admitted that in his deposition, he testified
that he was not present.
¶ 38 Majestic testified that general contractors left it to Sullivan Roofing to determine the
means and methods of its work. On the Wilton project specifically, defendant never told him or
his crew how to perform their work on the roof or not to use ATVs on the roof, although
defendant had the right to stop the work if they were damaging the roof.
¶ 39 Majestic testified that ATVs were “workhorse[s]” used regularly in the roofing industry,
including moving insulation and pushing rolls of rubber membrane, which weighed 2,500 to
2,800 pounds. At times, ATVs were occupied with other work on the roof and were not
available to workers needing to move rolls of membrane. It was preferable to have several
people move a roll of membrane, and protocol required a worker who had issues with the size of
the roll to either inform the foreman of his concern or find additional workers to push the roll.
Majestic did observe men manually pushing membrane weighing 2,500 to 2,800 pounds up to
200 feet in the past.
¶ 40 Majestic testified that plaintiff was a very good worker who was responsible and
dependable and that the company had considered him for the position of foreman.
15
No. 1-12-3663
¶ 41 3. Frank Pesek
¶ 42 Frank Pesek, the roofing foreman for Sullivan Roofing on the Wilton project, testified
that plaintiff worked under him and that he was a very good worker – hard working, dependable,
and honest. At one time, plaintiff was Pesek’s “leadman,” or right-hand man. Pesek testified
that plaintiff informed him that he was injured on the Wilton project. When someone reported an
injury, Pesek reported it to Sullivan.
¶ 43 Pesek testified that, on a job the size of the Wilton project, ATVs would be used to push
rolls of rubber membrane to various points on the roof; the ATVs had been used “since day one
when I was here.” Typically, two ATVs would be used to push a roll of rubber membrane, one
on the left and one on the right of the roll. Sullivan Roofing “always used the ATVs” to move
rolls of membrane significant distances “because it’s easier” on the workers’ bodies, but “[i]f we
had to” manually push them, “we would.”
¶ 44 Pesek testified that the type of rubber membrane used on the Wilton project would be
unrolled “kind of like a paper towel” and then unfolded “like a blanket.” When unfolded, the roll
would be approximately 200 by 50 feet. The materials for the roofing work were brought onto
the roof by Sullivan Roofing’s crane. From time to time, if soil conditions prevented a crane
from being placed at a particular location, the general contractor would direct the crane to be
placed in a better location with more favorable soil conditions.
¶ 45 Pesek testified that he was notified by “[s]omeone from [defendant] FCL” that there was
damage to the roof decking, and he “took a timeout to craft a solution to this deck damage issue.”
Pesek could not recall whether someone gave an order not to use ATVs, but “if we stopped using
16
No. 1-12-3663
the Hondas, it’s because someone told me not to use them.” Pesek agreed that “it was more
likely than not that there was an order to not use the Hondas to push the rolls,” and testified that
“the order to not use the Hondas either came from Dave Majestic or the [defendant’s]
superintendent on this job.” Pesek further testified that Majestic would not call Pesek “out of the
blue” and order him to stop using the ATVs. Pesek testified that defendant had the power to halt
the work that Sullivan Roofing was performing. Pesek further testified that he took his orders
from Dave Majestic, his supervisor.
¶ 46 Pesek testified that once the ATVs were not allowed to push the rolls, the rolls of
membrane would have to be manually pushed by the crew. Pesek “would rather use Hondas,”
but did not view anything unsafe in manually rolling the rubber membrane, providing there were
enough workers doing so, and ordered his crew to manually move the rolls; Pesek testified that,
if he observed an unsafe act being performed by a member of his crew, he had the authority to
stop it. There was a potential for injury when manually pushing a roll of rubber membrane 300
feet because “they are heavy. They’re heavy. You are pushing rolls that weigh a lot. Anything
in roofing is strenuous.”
¶ 47 Pesek testified that there was a plywood runway system in place to permit the ATVs to
transport bundles of insulation, but that they were not in place to permit the ATVs to move the
rolls of rubber membrane.
¶ 48 4. John Zelasco
¶ 49 John Zelasco, defendant’s project superintendent on the Wilton project, testified that he
was the highest-ranking employee of defendant present on the site on a daily basis. Zelasco
17
No. 1-12-3663
testified that it was “more likely than not” that defendant and the property owner agreed that
defendant would work in a safe manner. On the first day that roofing materials were loaded onto
the roof, he noticed that roofing activity was creasing the decking and notified Pesek, the
foreman for Sullivan Roofing, as well as Michael Sullivan. He also informed his two immediate
superiors: his project manager and his senior project manager.
¶ 50 Zelasco testified that defendant was the only general contractor on the Wilton project, and
that he was defendant’s only superintendent on the project. Zelasco, as a superintendent, “had
the power to stop work on this job generally.” After the decking was damaged, Zelasco notified
Pesek and Sullivan “and at that point I think it may have been their call to stop the activity to take
a look at what was going on, maybe to assess what activities were taking place.” However,
Zelasco also testified that it was a joint decision between defendant and Sullivan Roofing to
cease working for a day to assess the damage.
¶ 51 Zelasco testified that it was very common for roofers to use ATVs on a roof and that it
would be highly unusual not to use ATVs on a roof the size of the Wilton project. He denied
ordering Sullivan Roofing employees not to use ATVs to move rolls of rubber membrane or for
any other purpose; he testified that “[t]hey had the right to perform their activities,” including
using the ATVs to move the rolls of rubber membrane. He testified that, prior to beginning the
roofing work, he met with Majestic to discuss good access points for the cranes; Zelasco
estimated that Sullivan Roofing had access to 90% of the building’s perimeter, and then decided,
without Zelasco’s involvement, where along that perimeter it wanted to unload its materials.
Zelasco testified that Sullivan Roofing had unrestricted use of ATVs to move its materials and
18
No. 1-12-3663
that “I never gave any restrictions on the means and methods of the contractor to do his job.”
¶ 52 Zelasco also testified about defendant’s list of “intolerable offenses” by subcontractors,
which were “certain job rules that are strictly enforced.” One such rule concerned violations of
the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. (2006)). Zelasco testified that
violation of the rules could result in immediate and permanent removal of the subcontractor from
the project. Zelasco testified that “[e]veryone has to work as a team” to ensure a safe work site
and that “we’re committed to everyone’s safety on the job site.”
¶ 53 Zelasco held safety “in the highest priority,” and he was authorized to be an outreach
trainer for the Occupational Safety and Health Administration (OSHA) and was involved with
several other safety organizations. One of his duties for defendant on a given project was to
ensure that the work site was safe. He considered Sullivan Roofing to be “one of the best”
companies because “[t]hey have very high standards of safety. They *** have the right
equipment. It’s very, very rare that there’s ever an issue.”
¶ 54 Zelasco observed membrane used on a number of roofs and that, “[t]ypically, it’s moved
from the truck with a crane up onto the roof. And then very typically the roofers themselves,
usually five or more guys, will get behind it and push it into position, getting it either rolled up
onto a cart or onto some means of transporting it where it needs to go. But it’s always -- it’s
usually done manually when they’re stocking the job.” Once they were rolled onto the cart or
ATV, the rolls would be transported to their final destination on the roof.
¶ 55 If Zelasco observed any workers behaving in a way that was causing a problem, he would
speak to the foreman or the superintendent in order to address the issue. He denied ever telling
19
No. 1-12-3663
roofers to stop using ATVs on the Wilton project and did not know of anyone from defendant
doing so. He admitted that he and Majestic, from Sullivan Roofing, would have the authority to
tell Pesek to stop using the ATVs if they were damaging the deck.
¶ 56 Zelasco was not informed of plaintiff’s injury until defendant was sued in the instant
lawsuit.
¶ 57 After Zelasco’s testimony, outside the presence of the jury, the trial court found that
Zelasco had not provided a sufficient foundation to admit the contract between defendant and the
property owner into evidence. Plaintiff’s counsel indicated that they had relied on defendant’s
disclosure that Zelasco would lay a foundation for the contract, so they were “kind of in a bind
here,” since he was unable to do so. Plaintiff’s counsel requested that, “if the Court feels the
foundation, as it relates to the contract specifically, is inadequate, then I -- given the [Rule] 213
disclosure of defense, relative to Mr. Zelacso, I think I’m entitled to call a record keeper, a
signatory or somebody from FCL that can lay the foundation, notwithstanding the fact it’s the
day before I rest my case.” Over defendant’s objection, the court agreed and told defendant,
“you’re on notice that I would grant plaintiff’s motion. And that the request will come to you,
I’m assuming, within the next 12 hours. And that before this case is put to rest, I expect to see
some discussion and/or resolution one way or another.” The next day, plaintiff called
Christopher Linn, vice president of defendant, who provided the necessary foundation and the
contract was admitted into evidence.
¶ 58 5. Sabino Ramirez
¶ 59 Sabino Ramirez, plaintiff’s brother, who also worked as a roofer for Sullivan Roofing on
20
No. 1-12-3663
the Wilton project, testified that, on September 29, 2004, both he and plaintiff were working at
the Wilton project; Sabino as a “signal guy” for the crane and plaintiff “[p]ush[ing] the rolls and
other material.” Typically, when rolls of rubber membrane needed to be moved, they would be
moved by ATVs. However, the crew was ordered not to use ATVs to push the rolls by someone
wearing a white hard hat,5 so plaintiff was moving them manually. Approximately two hours
later, plaintiff informed Sabino that he had a great deal of back pain.
¶ 60 Sabino testified that he took all of his direction on the job from Pesek, the foreman, or
from other Sullivan Roofing employees, such as Majestic or Sullivan. Sabino had no
communication with defendant on the job.
¶ 61 6. Plaintiff
¶ 62 Plaintiff testified that he was born in Mexico and moved to the United States in 1986; he
began working as a roofer in 1989 and was a roofer until his injury in 2004. On September 29,
2004, he was working as a roofer and was not permitted to use ATVs to push the rolls of rubber
membrane “[b]ecause some guy told us don’t use the Hondas”; plaintiff testified that the man
who told the workers not to use the ATVs was John Zelasco, but plaintiff never spoke to him
directly. Pesek then ordered them to roll the membrane manually. The ATVs were only used to
move bundles of insulation. Plaintiff testified that it was unusual to manually move the rolls 300
feet and that “[a]ll the time we use the Hondas.”
¶ 63 Plaintiff testified that the roof was wet and slightly inclined. He testified that “I, myself,
5
Pesek, the foreman for Sullivan Roofing, testified that defendant’s employees wore
white hard hats.
21
No. 1-12-3663
and seven more guys, I was in the middle, we started to push the roll from the edge of the roof to
300 feet far, far away.” Plaintiff continued: “I hurt my back when we was pushing the roll into
the ridge. And the metal is very wet and slippery. So, the roll goes back and everybody is trying
to hold it, but that’s impossible to hold that kind of roll. So, everybody, they start to hold it and
they -- I was in the middle. So, I tried to hold it, the roll, and that’s when I feel my back like
crack when you crack your fingers and I feel very, very painful.” Plaintiff testified that they were
moving the roll up a slight incline, and it began rolling back four to five feet, until someone was
able to stop it by placing insulation under it.
¶ 64 Plaintiff testified that after he noticed the pain in his back, he informed Pesek, the
foreman; he did not inform Sullivan, who was not on the roof that day. Pesek instructed plaintiff
to “take it easy,” so plaintiff did light work for several hours, then took pain pills and rested for a
few hours. After returning home, plaintiff was walking slowly and had a great deal of pain in his
low back.
¶ 65 Plaintiff went to work the next day, a Thursday, but again only did light work. He did not
work Friday, Saturday, or Sunday, but rested at home. On Tuesday, his wife made an
appointment with Dr. Desmond Martello, a chiropractor she found through the yellow pages.
That week, plaintiff avoided heavy lifting at work and was permitted light duty. On October 8,
2004, he visited Dr. Martello, and visited him often during the next three months for physical
therapy; however, his back did not improve. Plaintiff also had injections ordered by Dr. Sean
Salehi, and Dr. Salehi performed surgery in 2005; the surgery helped for the first several months,
but the pain returned.
22
No. 1-12-3663
¶ 66 Plaintiff testified that Dr. Alberto,6 a pain doctor, again injected plaintiff and prescribed
pain medicine and, at some point, plaintiff visited Jaime Rojas for a functional capacity
evaluation. Eventually, plaintiff visited Dr. Edward Goldberg, who performed a second surgery.
Again, the surgery seemed to help at first, but the pain returned.
¶ 67 Plaintiff testified that he is unable to participate in activities that he had enjoyed, such as
boxing and soccer. Plaintiff further testified that he attempted to obtain work with his wife’s
employer, but was not hired.
¶ 68 Plaintiff testified that there was no plywood runway system in place to permit the ATVs
to be used at the time of the accident.
¶ 69 B. Medical and Lifestyle Witnesses
¶ 70 1. Juana Ramirez
¶ 71 Juana Ramirez, plaintiff’s wife, testified that plaintiff had been a roofer since he came to
the United States from Mexico in 1986 and loved his job. Until his accident in 2004, plaintiff
played soccer and basketball and enjoyed running and boxing. Juana testified that on September
24, 2004, plaintiff was working for Sullivan Roofing with his brother Sabino. When plaintiff
came home from work, Juana observed him holding his back with his left hand and having
trouble walking. Plaintiff informed Juana that he had injured his back at work, so Juana prepared
a hot bath for him. She also gave him painkillers and placed a cold pack on his back, but none of
it helped his back pain. Plaintiff went to work the next day, but Juana called the doctor, Dr.
Martello, the following week. That Friday, Juana accompanied plaintiff to visit Dr. Martello,
6
Dr. Alberto’s first name is not in the record on appeal.
23
No. 1-12-3663
who took X-rays and performed hot and cold therapy and electrical stimulation. Plaintiff visited
Dr. Martello for approximately three months, but his back had not improved and he was in
continuous pain.
¶ 72 In 2005, plaintiff and Juana visited Dr. Salehi, a surgeon, who gave plaintiff cortisone
injections and, when those did not work, performed surgery on plaintiff’s back in August 2005.
Plaintiff attended physical therapy and visited Dr. Elborno,7 a “pain management doctor” referred
by Dr. Salehi. Plaintiff then began treatment with Dr. Edward Goldberg, “an orthopedic,” and
had a second surgery on his low back in October 2007; plaintiff has not returned to his roofing
job or worked at all.
¶ 73 Juana testified that, as of the trial date in May 2012, plaintiff had not returned to work as
a roofer. He had attempted to find other work, such as in the maintenance department of Juana’s
employer, but was rejected because of his back problems. Juana characterized plaintiff as
“totally different” than prior to his accident, since he was unable to work or participate in the
activities he enjoyed, such as sports, or do work around the house, such as mowing the lawn or
shoveling snow.
¶ 74 2. Dr. Desmond Martello
¶ 75 Dr. Desmond Martello,8 a licensed chiropractor, testified that plaintiff’s treatment records
included a patient history that revealed that plaintiff was injured on September 29, 2004, when
7
Dr. Elborno’s first name is not in the record on appeal.
8
Martello’s testimony was presented by reading the transcript of a videotaped evidence
deposition in open court, but the video was not played before the jury.
24
No. 1-12-3663
pushing bundles of insulation at work and reported the injury to Frank Pesek.
¶ 76 3. Dr. Thomas Cronin
¶ 77 Dr. Thomas Cronin, a general surgeon practicing in occupational medicine, evaluated
plaintiff on January 22, 2005, and testified that the “triggering event” from plaintiff’s “history
and mechanism of injury” was “pushing this 2,000 pounds of rubber with eight other people.”
After evaluating plaintiff and examining his MRI, Cronin concluded that “number one, he had
chronic low back syndrome, which means low back pain, on a continuing basis. That was
number one. Number two, he had what’s known as spondylolisthesis, which is a slippage of the
vertebrae, one on the other, with radiculopathy, which is pain down the leg in his case at the L5-
S1 level. The third thing was he had a herniated disc at the lumbar three, lumbar four area, and
the lumbar four, lumbar five area with encroachment upon the left lateral recess at both levels,
which means, in common terms, a pinched nerve, but that can be extremely uncomfortable.”
Cronin opined that plaintiff needed further treatment by a specialist because he had a “long
measure of tenderness” down his spine and had “considerable limitation of motion” and
numbness and tingling on his legs; plaintiff was also “notably uncomfortable” while in Cronin’s
office and had difficulty during the examination during tests such as straight-leg-raising and heel-
to-toe tests. Cronin opined that plaintiff needed to visit a spine surgeon, “either an orthopedist or
a neurosurgeon that does that type of surgery.” In his report, Cronin opined that plaintiff “was
not able to do any heavy lifting, no repeated bending or twisting, only light work with a
restriction of five to ten pounds of lifting would be advisable.”
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No. 1-12-3663
¶ 78 4. Dr. Sean Salehi
¶ 79 Dr. Sean Salehi,9 a physician board-certified in neurological surgery, testified that he
treated plaintiff from April 14, 2005, to February 27, 2007, and performed spinal surgery on him
on October 17, 2005. Salehi first examined plaintiff at the neurosurgery clinic at Northwestern
University Hospital on April 4, 2005. Plaintiff reported that “he was injured at work in
September by pulling a 2,000 pound object with the help of other coworkers. At the time he had
immediate low back pain and also left leg pain.” Salehi opined that plaintiff “was having
fracture of his L5 vertebrae on the backside. He also had degeneration of the discs in the low
back and also stenosis of his lower back causing his complaints of back and leg pain, and I
wanted to put him through [a] conservative course of care,” meaning nonsurgical care.
¶ 80 Plaintiff next visited Salehi on July 8, 2005, and was still experiencing back and leg pain;
the conservative course of care had not relieved his pain at all. Salehi recommended proceeding
with a lumbar fusion operation to stabilize the spine, and performed a transforaminal lumber
interbody fusion on October 17, 2005. As of January 17, 2006, three months after surgery,
plaintiff’s left leg pain was still present but significantly improved, and he complained of low
back stiffness when rolling in bed, which was not an unusual complaint.
¶ 81 Salehi testified that plaintiff visited him on April 11, 2006, six months after the operation,
and was complaining of moderate low back and left leg pain, as well as neck pain when turning
his head. Plaintiff underwent a functional capacity evaluation, and Salehi opined that he was
9
Salehi’s testimony was presented in the form of a videotaped evidence deposition, the
transcript of which is included in the report of proceedings.
26
No. 1-12-3663
capable of sedentary to light-duty work and was physically unable to return to his work as a
roofer. On June 19, 2006, plaintiff was complaining of low back pain and intermittent left leg
pain. A CT scan and MRI revealed that, while one level of the two-level fusion was a solid
fusion, the other level had not yet healed. Salehi referred plaintiff for pain management and also
made a recommendation for an epidural steroid injection.
¶ 82 The last time that Salehi examined plaintiff was on February 27, 2007, and plaintiff
complained of low back and leg pain. The low back pain was constant and aggravated by any
movement, and the leg pain traveled down the leg. Salehi opined that, if additional imaging
showed no evidence of healing, plaintiff needed a second lumbar fusion to alleviate the
symptoms and should receive further treatment from Dr. Edward Goldberg. Salehi opined that
the cause of plaintiff’s injury was “[t]he rolling of the 2,000 pound object” and that plaintiff was
not physically capable of returning to his work as a roofer as of February 2007.
¶ 83 5. Dr. Edward Goldberg
¶ 84 Dr. Edward Goldberg,10 a board-certified orthopedic spine surgeon who treated plaintiff
from August 2005 to April 2012, testified that he first met plaintiff on August 15, 2005, when
“[h]e reported that he was working for Sullivan Roofing, injured himself on or about October 6
of 2004 when he was pushing and lifting bundles of insulation. He developed low back and left
leg pain.” Goldberg performed a physical exam and reviewed plaintiff’s radiographic images;
Goldberg tentatively opined that plaintiff had “aggravated a spondylolisthesis at L5-S1.” At that
10
Goldberg’s testimony was presented in the form of a videotaped evidence deposition,
the transcript of which is included in the report of proceedings.
27
No. 1-12-3663
time, plaintiff’s treating physician, Dr. Salehi, was recommending surgery, and Goldberg
concurred with that recommendation; plaintiff visited Goldberg for a second opinion.
¶ 85 Plaintiff was then examined by Goldberg on October 30, 2006, postsurgery, in order to
assess his clinical condition. Plaintiff continued to complain of low back pain and an ongoing
left leg radicular pain. Goldberg reviewed plaintiff’s postoperative films on November 1, 2006,
and opined that plaintiff’s fusion had not healed at either L4-L5 or L5-S1. At that point, plaintiff
had two options: live with the symptoms or repeat the surgery to obtain a solid fusion.
¶ 86 On August 3, 2007, plaintiff was still symptomatic, complaining of low back pain and
some numbness in both lower extremities. On August 28, 2007, Goldberg performed the repeat
surgery. Postsurgery, plaintiff’s back pain improved, but he still had some persistent left leg
radiculitis that had been present even before Salehi’s initial surgery. Plaintiff underwent physical
therapy and had a work evaluation, and ultimately, his fusion healed. Plaintiff had a functional
capacity evaluation at a facility called ATI, which was performed by Jaime Rojas; the evaluation
indicated that plaintiff was working at a light physical demand level. At the time of his
evaluation, Goldberg classified plaintiff’s recovery as maximum medical improvement.
Goldberg opined that plaintiff was not capable of going back to work as a roofer, which was a
heavy-demand level job.
¶ 87 Plaintiff was last examined by Goldberg on April 23, 2012, approximately a week and a
half prior to his testimony, and plaintiff “complained of some dull low back pain, some pain into
the left buttock and proximal left hamstring, in other words, the backside of the upper thigh.”
Plaintiff was still at maximum medical improvement. During his last visit, Goldberg opined that
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No. 1-12-3663
the fusion was healed at both L4-L5 and L5-S1, with very mild disc degeneration at L3-L4.
Goldberg opined that plaintiff could expect the residual effects of his injury to be of a permanent
nature; he opined that plaintiff “will intermittently have some dull low back pain, still some of
the pain, numbness in the left buttock into the hamstring.” Goldberg further opined that plaintiff
“was injured at work. He had aggravation of an asymptomatic spondylolisthesis of L5-S1 and
degenerative disc with spinal stenosis at L4-5.”
¶ 88 6. Jaime Rojas
¶ 89 Jaime Rojas,11 a certified licensed athletic trainer, testified that he was formerly the
clinical director of ATI Physical Therapy (ATI), where he performed a functional capacity
assessment of plaintiff on July 9, 2008. Rojas testified that he had performed a number of
functional capacity assessments for roofers, and he characterized roofing as a heavy physical
demand level job.
¶ 90 Rojas testified that plaintiff was referred to ATI by Dr. Goldberg, who requested that they
perform a functional capacity assessment. Rojas explained the process of performing the
assessment: first, the client filled out a 164-question questionnaire “to determine where they feel
that they’re at at that moment,” which took approximately an hour to complete. Rojas did not
have a copy of the questionnaire during his deposition, and no questionnaire was ever provided
to defendant by ATI. However, Rojas testified that the contents of the questionnaire were not
important to the assessment and “we don’t really go through that questionnaire.” Instead, while
11
Rojas’ testimony was presented in the form of a videotaped evidence deposition
conducted via telephone, the transcript of which is included in the report of proceedings.
29
No. 1-12-3663
the client was completing the questionnaire, Rojas would be watching him in order to observe
whether he was uncomfortable sitting or shifting, “just due to the fact they might have some pain,
discomfort, what have you. We don’t tell them that we’re looking at that, but that’s what we are
watching for within that hour.” In addition to assessing the client’s sitting tolerance, Rojas also
assessed the client’s standing and walking tolerance, as well as his endurance in terms of
bending, squatting, crawling, and kneeling. Rojas also assessed the client’s lifting tolerance at
three levels – desk to chair height, chair to floor height, and above shoulders – and assessed the
client’s ability to push, pull, and carry.
¶ 91 Rojas opined that plaintiff was demonstrating full effort during his evaluation, but was
only able to demonstrate the ability to perform work at a light physical demand level, lifting
approximately 32 pounds occasionally; the light physical demand level meant that he could
occasionally lift approximately 20 pounds. Rojas explained that the assessment did not make any
representations about plaintiff’s ability to return to work and that “[u]ltimately, it’s up to the
doctor’s discretion to do that. We’re just stating that this is what we saw on that particular day,
you know, we feel that he can do -- according to our functional capacity assessment, we feel like
he can do a light physical demand level job.” After the evaluation, plaintiff was returned to Dr.
Goldberg, and Rojas did not have any further contact with him.
¶ 92 C. Safety and Damages Witnesses
¶ 93 1. Dennis Puchalski
¶ 94 Dennis Puchalski, a construction safety expert, testified that he was a former safety
inspector with OSHA, as well as having jobs as a construction safety supervisor with the Illinois
30
No. 1-12-3663
Toll Highway Authority and other construction safety jobs. Puchalski was also a member of the
National Safety Council, Construction Section, and the American Society of Safety Engineers,
Construction Section, and was currently a construction safety litigation consultant.
¶ 95 Puchalski testified that “the general contractor has to enforce safety. They’re the ultimate
controlling contractor on the work site.” Puchalski further testified that defendant had the
obligation to ensure safe work procedures on the roof and had an obligation to supervise, inspect,
and coordinate the work involved, as well as proactively interceding if it observed unsafe work
practices. As an expert in construction safety, Puchalski opined that defendant “did violate
OSHA and customs and practices in that you’re allowing unsafe material handling.” Puchalski
pointed to the moving of heavy rubber membrane “[a]nd the custom and practice is when you
have heavy, heavy weights that you use mechanical means ***. *** But at the time of the
incident these weren’t being used and you’re doing manual material handling over decking,”
which could be slippery. Puchalski further opined that defendant violated the Association of
General Contractors manual on accident prevention in that, “when you’re not planning for proper
material handling and then you don’t control it to ensure i[t] then, yes, it’s violated.”
¶ 96 Puchalski testified that, pursuant to the contract between defendant and the property
owner, defendant was “solely responsible for the construction, means, methods, techniques,
sequences and procedures and to coordinate all portions of the work.”
¶ 97 On cross-examination, Puchalski admitted that neither defendant nor Sullivan Roofing
was cited for OSHA violations as a result of the accident. Puchalski opined that the number of
men pushing the roll of rubber membrane was irrelevant, because the fact that it was being
31
No. 1-12-3663
pushed manually violated OSHA.
¶ 98 2. Thomas Hutchinson
¶ 99 Thomas Hutchinson, an architect and licensed roof consultant, testified that he was an
expert in the design and installation of roofing systems such as the one involved in the Wilton
project. Hutchinson testified that when the rubber membrane used in the Wilton project first
came into use, the membrane was rolled manually across the roof; the circular nature of the roll
permitted momentum to unroll the membrane, once it had been started with a push. However,
with the advent of supersize projects and large warehouses, contractors began using mechanical
means of unrolling the membrane in order to be more efficient; ATVs began being used in
approximately 2000. Hutchinson testified that, “even today,” rubber membrane was often rolled
manually, because contractors did not have the means to put ATVs on the roof or the roof was
too small.
¶ 100 Hutchinson testified that “[t]here are several means and methods and customs and
practices in regards to moving just the membrane across the roof.” The first was the “traditional
way,” in which a group of crew members would stand behind the membrane and push the roll.
The other option was the “bump and roll,” using mechanical means. Hutchinson testified that,
even using mechanical means, worker would still need to manually move the roll somewhat,
since the roll needed to be in a position where the ATV could roll it.
¶ 101 3. David Gibson
¶ 102 David Gibson, senior analyst for Vocational Services, Inc., testified that his work
involved understanding the ways in which a disability interfered with a person’s ability to
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No. 1-12-3663
perform work in the United States labor market, as well as projecting a person’s earnings before
and after a given event in order to determine in dollars what loss the person incurred as a result of
the event.
¶ 103 Gibson testified that, based on an interview with plaintiff and a review of plaintiff’s
medical and employment records, plaintiff had six years of formal education and been employed
as a roofer since 1989 and had planned on continuing in that line of work until retirement.
However, plaintiff had significant pain, which impacted him in his ability to walk, stand, sit, lift,
and bend, as well as his abilities to crouch, crawl, balance, and climb stairs or ladders. Plaintiff’s
overall strength limitation was approximately 20 pounds and his back limitations impacted his
ability to reach above his head.
¶ 104 Gibson testified that the functional capacity evaluation that plaintiff had undergone was
important to his analysis, since it measured plaintiff’s ability to lift. Gibson explained that lifting
was a key component of many manual labor jobs, and that “[t]he less education a person has, the
more likely they are to have to work in manual labor type jobs.”
¶ 105 Gibson testified that plaintiff’s restrictions “essentially limited him to sedentary
employment,” which painted a “very bleak picture,” since sedentary jobs were largely skilled in
nature. However, plaintiff “has no transferable skills. The skills that he had were all very
important skills and well paying skills, but they’re specific to a job that he did as a roofer that he
can no longer do due to the strength requirement.” Consequently, “the percentage of jobs that he
has available to him to apply against in the U.S. labor market is less than one percent.” Gibson
further noted that many sedentary jobs require fluency in English, which plaintiff did not have,
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No. 1-12-3663
further diminishing his access to the labor market.
¶ 106 Gibson testified that plaintiff’s pre-injury average annual income was approximately
$57,848 in base salary using a calculation based on the three years prior to the accident, and was
approximately $55,419 using a five-year calculation. His work life expectancy from the date of
injury would have been 18.5 years. After his injury, plaintiff had no substantial likelihood of
having further gainful employment and had a work life expectancy of zero.
¶ 107 Gibson testified that, based on his annual income and including fringe benefits, plaintiff’s
lifetime loss from his injury would be $1,166,244 in present cash value using the five-year
average and $1,214,252 using the three-year average. Further, Gibson testified that plaintiff’s
pension was reduced by $118,423 in present cash value due to his injury. Including the pension
loss, the total present cash value of plaintiff’s losses was $1,284,667 using the five-year average
and $1,332,675 using the three-year average.
¶ 108 D. Jury Instructions and Verdict
¶ 109 The jury was given the following instruction concerning liability of a general contractor
over defendant’s objection:
“A contractor who entrusts work to a subcontractor can be
liable for injuries resulting from the work if the contractor retains
some control over the safety of the work and if the injuries were
proximately caused by the contractor’s failure to exercise that
control with ordinary care.”
¶ 110 On May 11, 2012, the jury completed “Verdict Form B,” finding in favor of plaintiff and
34
No. 1-12-3663
against defendant and that the amount of damages suffered by plaintiff was $1.985 million. The
jury further found:
“Assuming that 100% represents the total combined legal
responsibility of all persons or entities that proximately caused
Teodoro Ramirez’s injury, we find the percentage of legal
responsibility attributable to each as follows:
a) Teodoro Ramirez 20%
b) FCL Builders, Inc. 40%
c) Sullivan Roofing, Inc. 40%.”
Finally, reducing plaintiff’s total damages by the percentage of contributory negligence
attributable to plaintiff, the jury awarded plaintiff damages in the amount of $1.588 million. The
court entered judgment on the jury’s verdict.
¶ 111 On July 11, 2012, after obtaining an extension of time, defendant filed a posttrial motion
in which it renewed its morion for a directed verdict, moved the court to vacate the May 11,
2012, judgment, and requested judgment notwithstanding the verdict in defendant’s favor or, in
the alternative, a new trial. On November 6, 2012, the trial court denied defendant’s motion in a
written order. The court found that there was sufficient evidence for the jury to have concluded
that defendant exercised sufficient control over the aspect of Sullivan Roofing’s work that caused
plaintiff’s injury. The court further found that the verdict form was appropriate, and that the
other errors asserted by defendant were insufficient to require a new trial or judgment
notwithstanding the verdict.
35
No. 1-12-3663
¶ 112 ANALYSIS
¶ 113 On appeal, defendant argues that (1) the trial court erred in not granting a judgment
notwithstanding the verdict in favor of defendant, where defendant had no liability for plaintiff’s
injuries as a matter of law; and, alternatively, (2) the trial court should have granted defendant a
new trial where the trial court improperly instructed the jury, made errors in the admission of
evidence, and failed to sanction plaintiff for several discovery violations.
¶ 114 I. Judgment Notwithstanding the Verdict
¶ 115 Defendant first argues that the trial court erred in failing to enter a judgment
notwithstanding the verdict in defendant’s favor because defendant had no liability for plaintiff’s
injuries as a matter of law. Defendant argues both that it did not know of any unsafe work
practice on the part of Sullivan Roofing and that it did not exercise sufficient control over the
work site to expose it to liability for plaintiff’s injury.
¶ 116 Judgments notwithstanding the verdict are proper only where all the evidence viewed
most favorably to the opponent so overwhelmingly favors the movant that no contrary verdict
could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). It is the province of the jury
to resolve conflicts in the evidence, to pass upon the credibility of the witnesses and to decide
what weight should be given to the witnesses’ testimony. Maple, 151 Ill. 2d at 452. On review
of a trial court’s decision to deny a motion for a judgment notwithstanding the verdict, all of the
evidence must be reviewed in a light most favorable to the opponent of the motion. Thacker v.
UNR Industries, Inc., 151 Ill. 2d 343, 353-54 (1992). A court does not weigh the evidence, nor is
it concerned with the credibility of the witnesses; rather, it may only consider the evidence and
36
No. 1-12-3663
any inferences therefrom in the light most favorable to the party resisting the motion. Mizowek v.
De Franco, 64 Ill. 2d 303, 309-10 (1976). A judgment notwithstanding the verdict is not
appropriate if “reasonable minds might differ as to the inferences or conclusions to be drawn
from the facts presented.” Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995).
¶ 117 A. Section 414 of the Restatement (Second) of Torts
¶ 118 In the case at bar, plaintiff’s theory of recovery is grounded in common-law negligence.
“The essential elements of a cause of action based on common-law negligence are the existence
of a duty owed by the defendant to the plaintiff, the breach of that duty, and the injury
proximately caused by that breach.” Cochran v. George Sollitt Construction Co., 358 Ill. App.
3d 865, 873 (2005) (citing Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990)). Here, defendant’s
arguments focus on the duty element.
¶ 119 “Generally, one who employs an independent contractor is not liable for the latter’s acts
or omissions.” Joyce v. Mastri, 371 Ill. App. 3d 64, 73 (2007) (citing Downs v. Steel & Craft
Builders, Inc., 358 Ill. App. 3d 201, 204-05 (2005)). However, section 414 of the Restatement
(Second) of Torts (1965), “which has long been recognized as an expression of law in Illinois,”
provides an exception to the general rule, referred to as the “retained control” exception.
Cochran, 358 Ill. App. 3d at 873-74 (citing Larson v. Commonwealth Edison Co., 33 Ill. 2d 316,
325 (1965)); Calloway v. Bovis Lend Lease, Inc., 2013 IL App (1st) 112746, ¶ 47.
¶ 120 Section 414 provides:
“One who entrusts work to an independent contractor, but
who retains the control of any part of the work, is subject to
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No. 1-12-3663
liability for physical harm to others for whose safety the employer
owes a duty to exercise reasonable care, which is caused by his
failure to exercise his control with reasonable care.” Restatement
(Second) of Torts § 414 (1965).
¶ 121 “The Restatement describes a continuum of control, explaining [that] the employer is
subject to liability as master under the principles of agency where the employer retains control
over the operative detail of any part of the contractor’s work. [Citation.] If the employer retains
only supervisory control, i.e., power to direct the order in which work is done, or to forbid its
being done in a dangerous manner, then the employer is subject to liability under section 414
unless he exercised supervisory control with reasonable care.” Martens v. MCL Construction
Corp., 347 Ill. App. 3d 303, 314 (2004) (citing Restatement (Second) of Torts § 414, cmt. a
(1965)). Thus, “[a]s comment a to section 414 clarifies, the general contractor, by retaining
control over the operative details of its subcontractor’s work, may become vicariously liable for
the subcontractor’s negligence; alternatively, even in the absence of such control, the general
contractor may be directly liable for not exercising his supervisory control with reasonable care.”
Cochran, 358 Ill. App. 3d at 874.
¶ 122 However, the “retained control” concept is limited by comment c to section 414:
“In order for the rule stated in this Section to apply, the employer
must have retained at least some degree of control over the manner
in which the work is done. It is not enough that he has merely a
general right to order the work stopped or resumed, to inspect its
38
No. 1-12-3663
progress or to receive reports, to make suggestions or
recommendations which need not necessarily be followed, or to
prescribe alterations and deviations. Such a general right is usually
reserved to employers, but it does not mean that the contractor is
controlled as to his methods of work, or as to operative detail.
There must be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own way.”
Restatement (Second) of Torts § 414, cmt. c (1965).
Thus, negligence and, specifically, the existence of a duty under section 414 “turn[] on whether
the defendant controls the work in such a manner that he should be held liable.” Martens, 347
Ill. App. 3d at 315; Calloway, 2013 IL App (1st) 112746, ¶ 50. “Whether a contractor retained
such control over a subcontractor’s work so as to give rise to liability is an issue reserved for a
trier of fact, unless the evidence presented is insufficient to create a factual question.” Joyce v.
Mastri, 371 Ill. App. 3d 64, 74 (2007) (citing Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill.
App. 3d 1051, 1059 (2000)). In the case at bar, defendant argues that plaintiff failed to prove
control sufficient for either direct or vicarious liability under section 414.
¶ 123 B. Vicarious Liability Under Section 414
¶ 124 As noted, “the general contractor, by retaining control over the operative details of its
subcontractor’s work, may become vicariously liable for the subcontractor’s negligence”
pursuant to section 414. Cochran, 358 Ill. App. 3d at 874. In the case at bar, defendant argues
that “[t]he evidence in the case at bar shows no hands-on involvement by [defendant] in the
39
No. 1-12-3663
incidental or operational aspects of Sullivan Roofing’s work,” emphasizing that, “at most, its
directive to Sullivan Roofing was, essentially, ‘Stop damaging the client’s roof decking.’ ”
Defendant further argues that it was never involved in the manner in which Sullivan Roofing did
its work and did not order Sullivan Roofing to stop using ATVs.
¶ 125 We note that, in considering the denial of a motion for judgment notwithstanding the
verdict, we do not weigh the evidence, nor are we concerned with the credibility of the witnesses;
rather, we may only consider the evidence and any inferences drawn therefrom in the light most
favorable to plaintiff. Mizowek, 64 Ill. 2d at 309-10. Additionally, a judgment notwithstanding
the verdict is proper only where all the evidence viewed most favorably to the opponent so
overwhelmingly favors the movant that no contrary verdict could ever stand. Maple, 151 Ill. 2d
at 453. Here, considering the evidence in the light most favorable to plaintiff, we cannot find
that the evidence so overwhelmingly favored defendant that no contrary verdict could ever stand.
¶ 126 There was evidence presented at trial that defendant had the right to control the safety of
the work at the Wilton project and exercised that right by controlling operative details of Sullivan
Roofing’s work when (1) defendant noticed the damage to the decking and ordered work to stop;
(2) defendant participated in finding a solution to the problem; and (3) defendant ordered the use
of ATVs to cease, resulting in the workers’ manually pushing the rolls of rubber membrane. The
jury could reasonably have found that this conduct was sufficient to demonstrate that defendant
retained a level of control over Sullivan Roofing’s work to give rise to liability. See Joyce, 371
Ill. App. 3d at 74 (“Whether a contractor retained such control over a subcontractor’s work so as
to give rise to liability is an issue reserved for a trier of fact, unless the evidence presented is
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No. 1-12-3663
insufficient to create a factual question.” (citing Bokodi, 312 Ill. App. 3d at 1059)).
¶ 127 First, Michael Sullivan, Sullivan Roofing’s safety director at the time of plaintiff’s injury,
testified that, prior to beginning work on the Wilton project, Sullivan Roofing received a
“welcome subcontractor type letter” from defendant, in which defendant indicated that it was
“committed” to Sullivan Roofing’s safety and wanted to provide a workplace “reasonably free of
recognized safety hazards,” which Sullivan testified was “very common” on a project of the
scope of the Wilton project. The letter further stated that “safety and safety awareness is a two-
way street,” which Sullivan agreed with, testifying that “[e]verybody on site is responsible for
safety,” including the general contractor, subcontractor, and employees. Sullivan also testified
that, on the Wilton project, defendant had certain “intolerable offenses,” which meant that
“generally the subcontractor has to behave in a certain fashion or they’re gone.”
¶ 128 Sullivan testified that John Zelasco had the authority to stop work on the project if he
observed unsafe practices and further testified that “FCL is very strict on safety. So that’s more -
- you know, anything that happens, John has the right. He runs the job. He has the right to stop.”
If Zelasco observed someone performing his job in an unsafe manner, Zelasco would have the
right to stop that work and then would contact Sullivan. Zelasco would also coordinate the work
and monitor the work of the subcontractors.
¶ 129 Sullivan testified that when roofing materials were hoisted onto the roof of the Wilton
project, the materials were “dimpling” or denting the deck, and a solution needed to be provided
by “the powers that be.” Sullivan testified that “I believe John [Zelasco] called me” and
informed him of the problem with the decking. Sullivan testified that ATVs were used on the
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No. 1-12-3663
Wilton project and were only temporarily stopped: “That was a decision made at the point in
time all this happened, to stop everything, and we had to figure out a way that we could use them
again and get things rolling and be able to load -- so we wouldn’t damage the deck.”
¶ 130 At a meeting between Sullivan and David Majestic, they “came up with a plywood
runway solution,” which would use a plywood runway system to distribute the weight of the
heavy roofing materials and permit the ATVs to be used, and “posed that to John to help to
protect the roof.” Sullivan further testified that “after a conference between John and the powers
that be at Sullivan, that was a solution that was implemented.”
¶ 131 Thus, after hearing Sullivan’s testimony and making reasonable inferences therefrom, the
jury could have reasonably concluded that defendant had at least some control over the safety of
the work; ordered Sullivan Roofing’s work, including the use of ATVs, to stop when it was
damaging the roof; and approved Sullivan Roofing’s proposed solution of using a plywood
runway system.
¶ 132 Next, David Majestic, vice president of field operations for Sullivan Roofing, testified
that defendant’s superintendent, John Zelasco, placed a call to Sullivan Roofing informing it of
damage to the decking; defendant had the right to stop the work if Sullivan Roofing was
damaging the roof. The problem required the work to stop until a solution was developed, and
Majestic testified that the decision to use plywood to solve the problem was a collaboration
between Sullivan Roofing and defendant. Thus, after hearing Majestic’s testimony and making
reasonable inferences therefrom, the jury could have reasonably concluded that defendant had
some control over the work being performed on the roof, ordered the work to stop until a solution
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No. 1-12-3663
was developed, and participated in the decision to use plywood.
¶ 133 Additionally, Frank Pesek, the roofing foreman for Sullivan Roofing on the Wilton
project, testified that, on a job the size of the Wilton project, ATVs would be used to push rolls
of rubber membrane to various points on the roof; the ATVs had been used “since day one when
I was here” and Sullivan Roofing “always used the ATVs” to move rolls of membrane significant
distances “because it’s easier” on the workers’ bodies.
¶ 134 Pesek testified that he was notified by “[s]omeone from [defendant] FCL” that there was
damage to the roof decking, and he “took a timeout to craft a solution to this deck damage issue.”
Pesek could not recall whether someone gave an order not to use ATVs, but “if we stopped using
the Hondas, it’s because someone told me not to use them.” Pesek agreed that “it was more
likely than not that there was an order to not use the Hondas to push the rolls,” and he testified
that “the order to not use the Hondas either came from Dave Majestic or the [defendant’s]
superintendent on this job.” Pesek further testified that Majestic would not call Pesek “out of
the blue” and order him to stop using the ATVs and testified that defendant had the power to halt
the work that Sullivan Roofing was performing.
¶ 135 Pesek testified that once the ATVs were not allowed to push the rolls, the rolls of
membrane would have to be manually pushed by the crew. Pesek “would rather use Hondas,”
but he did not view anything unsafe in manually rolling the rubber membrane, providing there
were enough workers doing so, and ordered his crew to manually move the rolls. Finally, Pesek
testified that there was a plywood runway system in place to permit the ATVs to transport
bundles of insulation but they were not in place at that point in time to permit the ATVs to move
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No. 1-12-3663
the rolls of rubber membrane.
¶ 136 Thus, after hearing Pesek’s testimony and making reasonable inferences therefrom, the
jury could have reasonably concluded that defendant had some control over Sullivan Roofing’s
work and ordered the work halted over the damage to the decking. Furthermore, the jury could
have reasonably concluded that defendant ordered the use of ATVs in pushing rolls of rubber
membrane to cease, meaning that the workers would need to manually move them, something
that Sullivan Roofing did not normally do of its own accord.
¶ 137 Next, John Zelasco, defendant’s project superintendent on the Wilton project, testified
that he was present on the site on a daily basis. Zelasco, as a superintendent, “had the power to
stop work on this job generally” and one of his duties for defendant on a given project was to
ensure that the work site was safe. Zelasco also testified about defendant’s list of “intolerable
offenses” by subcontractors, which were “certain job rules that are strictly enforced,” and
testified that violation of the rules could result in immediate and permanent removal of the
subcontractor from the project. Zelasco testified that “[e]veryone has to work as a team” to
ensure a safe work site and that “we’re committed to everyone’s safety on the job site.”
¶ 138 Zelasco testified that, on the first day that roofing materials were loaded onto the roof, he
noticed that roofing activity was creasing the decking and notified Pesek and Sullivan. Zelasco
also testified that it was a joint decision between defendant and Sullivan Roofing to cease
working for a day to assess the damage.
¶ 139 Zelasco testified that it was very common for roofers to use ATVs on a roof and that it
would be highly unusual not to use ATVs on a roof the size of the Wilton project. Zelasco
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No. 1-12-3663
testified that Sullivan Roofing had unrestricted use of ATVs to move its materials and that “I
never gave any restrictions on the means and methods of the contractor to do his job.” He
admitted that he and Majestic, from Sullivan Roofing, would have the authority to tell Pesek to
stop using the ATVs if they were damaging the deck.
¶ 140 Zelasco observed membrane used on a number of roofs and that, “[t]ypically, it’s moved
from the truck with a crane up onto the roof. And then very typically the roofers themselves,
usually five or more guys, will get behind it and push it into position, getting it either rolled up
onto a cart or onto some means of transporting it where it needs to go. But it’s always -- it’s
usually done manually when they’re stocking the job.” Once they were rolled onto the cart or
ATV, the rolls would be transported to their final destination on the roof.
¶ 141 Thus, after hearing Zelasco’s testimony and making reasonable inferences therefrom, the
jury could have reasonably concluded that defendant had control over the safety of the work site
and had the power to stop work, and that defendant in fact ordered the roofing work to stop.
Furthermore, the jury could have reasonably concluded that Zelasco knew that ATVs were
normally used to move rolls of rubber membrane and that the other alternative was moving the
rolls manually.
¶ 142 Finally, plaintiff’s brother testified that, on the day of plaintiff’s injury, the crew was
ordered not to use ATVs to push the rolls by someone wearing a white hard hat,12 so plaintiff was
moving them manually, and plaintiff testified that he was not permitted to use ATVs to push the
12
Pesek, the foreman for Sullivan Roofing, testified that defendant’s employees wore
white hard hats.
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No. 1-12-3663
rolls of rubber membrane “[b]ecause some guy told us don’t use the Hondas”; plaintiff testified
that the man who told the workers not to use the ATVs was John Zelasco. Pesek then ordered
them to roll the membrane manually, and the ATVs were only used to move bundles of
insulation. Plaintiff testified that it was unusual to manually move the rolls 300 feet and that
“[a]ll the time we use the Hondas.” Thus, after hearing testimony from plaintiff and his brother
and making reasonable inferences therefrom, the jury could have reasonably concluded that
defendant ordered the workers to stop using ATVs to move the rolls of rubber membrane,
resulting in the order to move the membrane manually.
¶ 143 In sum, taking all evidence in the light most favorable to plaintiff as the nonmovant, the
jury could have reasonably concluded that: defendant had a degree of control over work site
safety and had the power to stop the work; defendant did stop the work when damage to the
decking was discovered; defendant participated in finding a solution to the problem; and
defendant ordered the use of ATVs to stop, despite being aware that the alternative was to
manually push the rolls of rubber membrane, a decision that directly led to plaintiff’s injury. The
jury could have reasonably found that this conduct was sufficient to demonstrate that defendant
retained a level of control over Sullivan Roofing’s work so as to give rise to liability, especially
since the control exercised by defendant was control over the method and means of rolling
membrane, an operative detail of Sullivan Roofing’s work. See Joyce, 371 Ill. App. 3d at 74
(“Whether a contractor retained such control over a subcontractor’s work so as to give rise to
liability is an issue reserved for a trier of fact, unless the evidence presented is insufficient to
create a factual question.” (citing Bokodi, 312 Ill. App. 3d at 1059)). The jury hears the evidence
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No. 1-12-3663
and decides the credibility of the witnesses and the weight to be given to their testimony. Maple,
151 Ill. 2d at 452. In the case at bar, this jury believed the versions testified to by Pesek,
plaintiff, and his brother, and we cannot say that all of the evidence viewed most favorably to the
opponent so overwhelmingly favors the movant that no contrary verdict could ever stand. Maple,
151 Ill. 2d at 453.
¶ 144 We find the cases relied on by defendant to be factually distinguishable. For instance, in
Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 839-40 (1999), we affirmed the
grant of summary judgment in a general contractor’s favor, finding that the general contractor
owed no duty to the subcontractor’s employee. In that case, Rangel, the employee, was injured
after falling from scaffolding that had been constructed by Drywall, the subcontractor, two days
earlier. Rangel, 307 Ill. App. 3d at 837. Rangel brought suit against Brookhaven, the general
contractor, alleging that Brookhaven owed Rangel a duty of care, which it breached by failing to
inspect the scaffold or warning him of the dangerous condition the scaffold presented. Rangel,
307 Ill. App. 3d at 837.
¶ 145 We upheld the trial court’s grant of summary judgment in Brookhaven’s favor, finding
that “[t]here is no evidence to suggest that Drywall was not entirely free to perform the work in
its own way. The evidence showed Brookhaven never directed the ‘operative details’ of the
work performed by Drywall and Rangel. Drywall, not Brookhaven, supplied the scaffold on
which Rangel worked. A Drywall supervisor, not Brookhaven, directed Rangel to utilize the
braces when necessary for positioning the drywall. This unsafe method of performing the work,
which led to Rangel’s injury, was proposed by Rangel’s employer just hours before the accident.”
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Rangel, 307 Ill. App. 3d at 839. Thus, we concluded that, since “ ‘[the employer] controlled the
ends, [the independent contractor] was responsible for the means by which those ends were
achieved,’ ” there could be no liability imposed on Brookhaven. Rangel, 307 Ill. App. 3d at 839
(quoting Fris v. Personal Products Co., 255 Ill. App. 3d 916, 924 (1994)).
¶ 146 Similarly, in Joyce, we affirmed the trial court’s grant of summary judgment in a general
contractor’s favor where the employee of a subcontractor was injured while using a ladder that
malfunctioned. There, the ladder was provided by another subcontractor and the general
contractor did not provide any equipment or have any contact with the employee. Joyce, 371 Ill.
App. 3d at 68. We upheld the trial court’s grant of summary judgment, finding that “the facts
indicate that Madison Services did not control EGM’s work. There is no evidence that Madison
Services directed the ‘operative details’ of the work site or that EGM was not free to perform the
demolition work in its own way. The evidence showed that Madison Services did not participate
in or supervise any of the demolition work. Reinersman, on behalf of Madison Services, visited
the work site at the beginning of the project merely to inform EGM of the scope of work and any
subsequent visits were to monitor the progress of the work. Reinersman did not direct EGM
employees as to the operative details as to how to perform their work and did not give any job
assignments to EGM’s employees. The evidence showed that Olson, EGM’s superintendent, ran
the job and that EGM’s workers were supervised by its lead man, Jerry Johansen. Olsen himself
testified that Madison Services did not supervise EGM’s work and that EGM workers would go
to him if they had any type of problems.” Joyce, 371 Ill. App. 3d at 75-76.
¶ 147 Finally, in Cochran, we affirmed the trial court’s grant of summary judgment in the
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general contractor’s favor where a subcontractor’s employee was injured when falling off a
ladder set up in an unsafe manner; the equipment was provided by the subcontractor and the
employee received work instructions from the subcontractor. Cochran, 358 Ill. App. 3d at 867-
68. We found that there was no basis for vicarious liability “because no evidence was presented
that [the general contractor] so controlled the operative details of [the subcontractor’s] work that
[the subcontractor’s] employees were not entirely free to perform the work in their own way.”
Cochran, 358 Ill. App. 3d at 879.
¶ 148 In the case at bar, by contrast, there was evidence that defendant involved itself in the
operative details of the roofing work. Contrary to defendant’s assertion that, “at most, its
directive to Sullivan Roofing was, essentially, ‘Stop damaging the client’s roof decking,’ ” there
was evidence presented that defendant had a role in ordering the work to stop, in implementing a
solution to the damage issue, and in ordering the use of ATVs to stop, leading to the workers’
manually pushing the rolls of rubber membrane. Thus, we find defendant’s cases inapposite and
affirm the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict.
¶ 149 C. Direct Liability Under Section 414
¶ 150 Defendant also argues that there was no evidence that it was directly liable for plaintiff’s
injuries under section 414. As noted, “the general contractor may be directly liable for not
exercising his supervisory control with reasonable care,” even in the absence of control sufficient
to subject the general contractor to vicarious liability. Cochran, 358 Ill. App. 3d at 874. Here,
defendant argues that plaintiff did not prove direct liability under section 414 because (1)
plaintiff did not prove an unsafe work method and (2) plaintiff did not prove that defendant was
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No. 1-12-3663
on notice of the alleged unsafe work method. “According to comment b to section 414, the
general contractor’s knowledge, actual or constructive, of the unsafe work methods or a
dangerous condition is a precondition to direct liability.” Cochran, 358 Ill. App. 3d at 879-80.
Thus, in Cochran, we found that the general contractor was not directly liable for a worker’s
injury in falling off an unsafe ladder where the unsafe condition was in existence for an hour at
most and the general contractor had no knowledge of the unsafe condition. Cochran, 358 Ill.
App. 3d at 880.
¶ 151 In the case at bar, there was sufficient evidence for the jury to conclude that defendant
was directly liable for plaintiff’s injury. First, there was evidence that manually moving the rolls
was an unsafe work method. Puchalski testified that manually moving rolls of rubber membrane
was unsafe, and all of the roofing witnesses testified that using an ATV was preferable to
manually moving the rolls. The jury could have found Puchalski credible and determined that
manually moving the rolls was an unsafe work method.
¶ 152 Additionally, there was testimony that defendant was aware of the unsafe work method
through its order to stop using the ATVs. Again, we note that, although there was contradictory
testimony over who ordered the workers to stop using the ATVs, our review must take the
evidence in the light most favorable to plaintiff. Pesek testified that, once the use of ATVs was
stopped, the membrane would need to be manually pushed by the crew. Plaintiff’s brother also
testified that plaintiff was moving rolls manually because the crew was ordered to stop the use of
ATVs by someone wearing a white hard hat, and the evidence established that defendant’s
employees wore white hard hats. Plaintiff also testified that Zelasco ordered the workers to stop
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No. 1-12-3663
using ATVs, resulting in them pushing the rolls manually. Furthermore, since Sullivan Roofing
was still required to work despite being ordered not to use the ATVs, a reasonable inference
would be that the workers would manually push the rolls.
¶ 153 Defendant argues that defendant did not know that the workers would push the rolls
manually, and that Sullivan Roofing could have used the ATVs on the plywood runway system.
However, there was evidence presented that cast doubt over whether the plywood runway system
was implemented and whether it was used for rolling membrane. For instance, plaintiff testified
that there was no plywood runway system in place and Pesek testified that the plywood runway
system permitted ATVs to move insulation but could not be used to roll membrane.
¶ 154 Additionally, Hutchinson, defendant’s expert, testified that the rolls could be moved in
one of two ways: manually or through mechanical means. The jury could have inferred that,
once the mechanical means were stopped, the manual method would need to be used. Finally,
Zelasco testified that he had observed membrane used on a number of roofs and had observed
workers both using ATVs and manually moving membrane. The jury could have inferred from
Zelasco’s testimony that Zelasco would have been aware that the result of stopping the use of
ATVs would be the manual rolling of the membrane. Thus, we do not find defendant’s argument
persuasive and affirm the trial court’s denial of defendant’s motion for judgment notwithstanding
the verdict.
¶ 155 II. New Trial
¶ 156 Defendant alternatively argues that the trial court should have granted defendant a new
trial where the trial court improperly instructed the jury, made errors in the admission of
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No. 1-12-3663
evidence, and failed to sanction plaintiff for several discovery violations. Defendant also argues
that the jury’s verdict was against the manifest weight of the evidence.
¶ 157 A. Jury Verdict Against Manifest Weight
¶ 158 First, defendant argues that the jury’s verdict was against the manifest weight of the
evidence, claiming that there was no evidence that defendant retained control of the roofing
work. “ ‘[O]n a motion for a new trial a [trial] court will weigh the evidence and set aside the
verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence.’ ”
Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992) (quoting Mizowek v. De Franco, 64 Ill. 2d 303,
310 (1976)). “ ‘A verdict is against the manifest weight of the evidence where the opposite
conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not
based upon any of the evidence.’ ” Maple, 151 Ill. 2d at 454 (quoting Villa v. Crown Cork &
Seal Co., 202 Ill. App. 3d 1082, 1089 (1990)). A trial court’s ruling on a motion for a new trial
will not be reversed except in those instances where it is affirmatively shown that it clearly
abused its discretion. Maple, 151 Ill. 2d at 455 (citing Reidelberger v. Highland Body Shop, Inc.,
83 Ill. 2d 545, 548 (1981)); Duffek v. Vanderhei, 81 Ill. App. 3d 1078, 1087 (1980); Prange v.
Wallenburg, 27 Ill. App. 3d 618, 626 (1975); Yocco v. Barris, 16 Ill. App. 3d 113, 115 (1973). In
determining whether a trial court abused its discretion, the reviewing court should consider
whether the jury’s verdict was supported by evidence and whether the losing party was denied a
fair trial. Maple, 151 Ill. 2d at 455 (citing Reidelberger, 83 Ill. 2d at 549). Furthermore, it is
important to keep in mind that “ ‘ “[t]he presiding judge in passing upon the motion for new trial
has the benefit of his previous observation of the appearance of the witnesses, their manner in
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No. 1-12-3663
testifying, and of the circumstances aiding in the determination of credibility.” ’ ” Maple, 151 Ill.
2d at 456 (quoting Buer v. Hamilton, 48 Ill. App. 2d 171, 173-74 (1964), quoting Hulke v.
International Manufacturing Co., 14 Ill. App. 2d 5, 47 (1957)). If the trial judge, in the exercise
of his discretion, finds that the verdict is against the manifest weight of the evidence, he should
grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of
the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial.
Maple, 151 Ill. 2d at 456 (citing Kitsch v. Goode, 48 Ill. App. 3d 260, 270-71 (1977)); Morella v.
Melrose Park Cab Co., 65 Ill. App. 2d 175, 181-83 (1965).
¶ 159 In the case at bar, as noted, plaintiff’s theory of recovery is grounded in common-law
negligence. “The essential elements of a cause of action based on common-law negligence are
the existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and the
injury proximately caused by that breach.” Cochran, 358 Ill. App. 3d at 873 (citing Ward, 136
Ill. 2d at 140). However, defendant’s arguments concerning the jury’s verdict concern only the
duty element. Here, we cannot find that the jury’s verdict was against the manifest weight of the
evidence.
¶ 160 As explained in the previous section, the jury could properly have determined that
defendant owed a duty to plaintiff pursuant to section 414 of the Restatement (Second) of Torts,
based on the testimony of the witnesses at trial. Accordingly, we cannot find that the jury’s
verdict was against the manifest weight of the evidence and affirm the trial court’s denial of
defendant’s motion for a new trial.
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¶ 161 B. Jury Instructions
¶ 162 Defendant next argues that the trial court erred in issuing certain jury instructions based
on the Illinois Pattern Jury Instructions (IPI), claiming that they are not an accurate statement of
the law. “Although jury instructions are generally reviewed for an abuse of discretion, our
standard of review is de novo when the question is whether the applicable law was accurately
conveyed.” Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170 (2008) (citing People
v. Pierce, 226 Ill. 2d 470, 475 (2007)); Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13.
De novo consideration means we perform the same analysis that a trial judge would perform.
Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 163 Illinois Supreme Court Rule 239(a) (eff. Jan. 1, 1999) states that a trial court “shall” use
an IPI instruction when it is “applicable in a civil case, giving due consideration to the facts and
the prevailing law, *** unless the court determines that it does not accurately state the law.” A
non-IPI instruction may be used if the IPI instruction does not accurately state the law. Studt,
2011 IL 108182, ¶ 14 (citing Ill. S. Ct. R. 239(b) (eff. Jan. 1, 1999)); Schultz v. Northeast Illinois
Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002).
¶ 164 However, even if the reviewing court determines that the trial court gave faulty
instructions to the jury, reversal is not warranted unless the error results in “ ‘serious prejudice’ ”
to the appellant’s right to a fair trial. Studt, 2011 IL 108182, ¶ 28 (quoting Heastie v. Roberts,
226 Ill. 2d 515, 543 (2007)); Schultz, 201 Ill. 2d at 274 (“A reviewing court ordinarily will not
reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted
in prejudice to the appellant.”).
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No. 1-12-3663
¶ 165 In the case at bar, the trial court gave the jury instructions based on the IPI. Specifically,
the trial court gave the following instruction, based on Illinois Pattern Jury Instructions, Civil,
No. 55.01 (2011) (hereinafter, IPI Civil (2011) No. 55.01):
“A contractor who entrusts work to a subcontractor can be
liable for injuries resulting from the work if the contractor retains
some control over the safety of the work and if the injuries were
proximately caused by the contractor’s failure to exercise that
control with ordinary care.”
Defendant argues that this instruction did not accurately state the law because a general right to
control safety is not sufficient to impose liability under section 414. We agree.
¶ 166 The committee comments to the 55.00 series indicate that, “[d]ue to the lack of consensus
among the appellate courts and no Supreme Court cases on this subject since Larson [v.
Commonwealth Edison Co., 33 Ill. 2d 316 (1965)], the concept of ‘control’ caused the committee
great difficulty.” IPI Civil (2011) No. 55.00, Introduction, at 261. Consequently, “[t]he
committee chose to concentrate on the area of ‘safety’ in these instructions. The committee
believed that the overriding consideration throughout all of these cases is the ability of the
controlling entity to affect overall job safety. It would appear that the ability to stop unsafe work
and not permit it to be resumed until done to the satisfaction of the controlling entity satisfies
both the requirement of ‘control’ and demonstrates that the contractor is ‘not entirely free to do
the work in his own way.’ ” IPI Civil (2011) No. 55.00, Introduction, at 261.
¶ 167 The committee’s statement that “[i]t would appear that the ability to stop unsafe work and
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No. 1-12-3663
not permit it to be resumed until done to the satisfaction of the controlling entity” would bring
the contractor under the purview of section 414 is likely an accurate statement of the law
because, under that scenario, the contractor would have the power to affect the methods by which
the subcontractor alleviated the safety problem. See, e.g., Calloway, 2013 IL App (1st) 112746,
¶ 74 (general contractor’s authority included right “to stop any work that they saw being done in
an unsafe manner and to direct that the work be done in a different manner”); Bokodi v. Foster
Wheeler Robbins Inc., 312 Ill. App. 3d 1051, 1063 (2000) (general contractor’s authority
included right to “shut down the work of the subcontractors until a safety breach was alleviated
to defendants’ satisfaction”).
¶ 168 However, the language of IPI Civil (2011) No. 55.01 is broader than the scenario posed
by the committee comments, requiring only that the contractor “retain[] some control over the
safety of the work.” (Emphasis added.) “Some” is defined as “[b]eing an unspecified number or
quantity.” American Heritage Dictionary 1164 (2d coll. ed. 1985). In other words, the pattern
instruction requires the contractor to have retained an unspecified portion of the control over
safety in order to be liable. Section 414, however, applies to “[o]ne who entrusts work to an
independent contractor, but who retains the control of any part of the work.” (Emphasis added.)
Restatement (Second) of Torts § 414 (1965). “[A] principle of statutory construction is that ‘the
definite article “the” particularizes the subject which it precedes. It is a word of limitation as
opposed to the indefinite or generalizing force of “a” or “an.” ’ ” (Emphasis omitted.) Sibenaller
v. Milschewski, 379 Ill. App. 3d 717, 722 (2008) (quoting Brooks v. Zabka, 450 P.2d 653, 655
(Colo. 1969)). Section 414's use of the phrase “the control,” then, implies that there is only one
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No. 1-12-3663
person or entity exercising control over a part of the work, something that is not true of the
pattern instruction’s requirement of “some control.” Indeed, since the jury is not instructed as to
the amount of control required, a jury could easily find that minimal control over safety is
sufficient to hold a contractor liable. Thus, it is evident that IPI Civil (2011) No. 55.01
encompasses conduct that would not give rise to liability under section 414.
¶ 169 Furthermore, the IPI language does not include the explanation of “retained control”
found in the comments to section 414. Comment c to section 414 specifically provides that “[i]t
is not enough that [the contractor] has merely a general right to order the work stopped or
resumed, to inspect its progress or to receive reports, to make suggestions or recommendations
which need not necessarily be followed, or to prescribe alterations and deviations. Such a
general right is usually reserved to employers, but it does not mean that the contractor is
controlled as to his methods of work, or as to operative detail. There must be such a retention of
a right of supervision that the contractor is not entirely free to do the work in his own way.”
Restatement (Second) of Torts § 414, cmt. c (1965). However, under the language of IPI Civil
(2011) No. 55.01, a jury could consider such a general right to be a retention of “some control
over the safety of the work,” since the jury is not further instructed as to what conduct constitutes
control.
¶ 170 Additionally, as noted by defendant, our recent case law, not cited by the committee
comments, consistently finds no control where there is only a general right to control. Pekin
Insurance Co. v. Roszak/ADC, LLC, 402 Ill. App. 3d 1055, 1067 (2010) (“a general contractor
that retains the power to coordinate the order in which work is done and to stop work that is
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No. 1-12-3663
performed dangerously” does not retain sufficient control so as to be vicariously liable for the
subcontractor’s negligence); Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d
333, 346 (2008) (“ ‘the rights retained by [a general contractor] to schedule and stop work [and]
to order changes, *** are general rights of supervision and not a retention of control over the
incidental aspects of the work’ ” (quoting Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d
201, 206 (2005))); Bieruta v. Klein Creek Corp., 331 Ill. App. 3d 269, 278 (2002) (“even where
the employer or general contractor retains the right to inspect the work done, orders changes to
the specifications and plans, and ensures that safety precautions are observed and the work is
done in a safe manner, no liability will be imposed on the employer or general contractor unless
the evidence shows that the employer or general contractor retained control over the ‘incidental
aspects’ of the independent contractor’s work”). Accordingly, in light of the development of
case law interpreting section 414, we find that the broad language of IPI Civil (2011) No. 50.01
is not an accurate statement of the law.
¶ 171 While plaintiff states, without citation, that “[t]he Illinois Pattern Jury instructions on
negligence have been among the most tested and approved instructions in Illinois,” our research
has only revealed the two cases cited by defendant in which the accuracy of IPI Civil (2011) No.
50.01 has been considered: Jones v. DHR Cambridge Homes, Inc., 381 Ill. App. 3d 18 (2008),
and Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13 (2009), which applied the holding in
Jones. In Jones, a different division of the appellate court rejected a general contractor’s
argument that IPI Civil (2005) 50.0113 no longer reflected an accurate statement of the law.
13
IPI Civil (2005) No. 50.01 and IPI Civil (2011) No. 50.01 are identical.
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Jones, 381 Ill. App. 3d at 37-38. The general contractor argued that the instruction was no longer
an accurate statement of the law in light of Martens, where the Martens court indicated: “ ‘The
central issue [in a section 414 analysis] is retained control of the independent contractor’s work,
whether contractual, supervisory, operational, or some mix thereof. The party who retains
control is the logical party upon whom to impose the duty to ensure worker safety.’ ” Jones, 381
Ill. App. 3d at 37 (quoting Martens, 347 Ill. App. 3d at 318). The Jones court disagreed with the
general contractor’s argument, noting that the Martens court referred to IPI Civil (2005) No.
55.02 without criticism, indicating that the Martens court did not intend its decision to mean that
the pattern instruction no longer reflected an accurate statement of the law. Jones, 381 Ill. App.
3d at 38. Additionally, the Jones court distinguished Martens on its facts, noting that the general
contractor in Jones could require compliance with its safety standards and stop the work if its
safety rules were violated, where the general contractor in Martens could not. Jones, 381 Ill.
App. 3d at 38.
¶ 172 We note that the parties and the court in Jones proceeded from an assumption that the
pattern instruction was an accurate statement of the law, and only considered whether Martens
changed the accuracy of the statement. Here, by contrast, defendant does not begin with such an
assumption but instead argues that the instruction is inaccurate because it is based on an incorrect
interpretation of section 414. Thus, the fact that the Jones court did not find that the pattern
instruction no longer reflected an accurate statement of the law does not preclude us from finding
that IPI Civil (2011) No. 50.01 is not an accurate statement of the law.
¶ 173 However, despite our conclusion that the trial court issued an improper instruction,
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reversal is not warranted unless the error results in “ ‘serious prejudice’ ” to the appellant’s right
to a fair trial. Studt, 2011 IL 108182, ¶ 28 (quoting Heastie, 226 Ill. 2d at 543). In the case at
bar, we cannot find that the erroneous instruction resulted in serious prejudice to defendant.
Although the pattern instruction permits a jury to find control in situations that would not satisfy
the requirements of section 414, there is no indication that this was the case here. Instead, the
record demonstrates that the crux of plaintiff’s theory was that defendant made the decision to
stop the use of ATVs, demonstrating control over an operative detail of Sullivan Roofing’s work.
Thus, throughout trial, the parties focused on the extent of defendant’s involvement in the
decision to manually move the rolls of rubber membrane. Indeed, during closing argument,
plaintiff’s counsel noted that “the main issue that you guys will have to decide is who gave that
no Honda order as it relates to the big rolls.”
¶ 174 As noted in previous sections, there was sufficient evidence for the jury to conclude that
defendant was liable under section 414, both vicariously and directly, as a result of testimony
concerning defendant’s participation in the process that led to manual rolling of the rubber
membrane. This is not, as defendant contends, a situation where the only evidence was that
defendant ordered plaintiff to stop damaging the roof. Instead, there was testimony that
defendant ordered the stoppage of work, participated in implementing a solution to the damage
issue, and ordered the use of ATVs to cease – an order that directly impacted the means by which
Sullivan Roofing completed its roofing work.
¶ 175 First, there was evidence at trial that defendant noticed the damage to the decking and
ordered the work stopped. Zelasco testified that on the first day that roofing materials were
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loaded onto the roof, he noticed that roofing activity was creasing the decking and notified Pesek
and Sullivan; Zelasco also testified that it was a joint decision between defendant and Sullivan
Roofing to cease working for a day to assess the damage. Sullivan and Majestic also testified
that Zelasco placed a call to Sullivan Roofing informing them of damage to the decking, and
Pesek testified that he was notified by “[s]omeone from [defendant] FCL” that there was damage
to the roof decking, and he “took a timeout to craft a solution to this deck damage issue.”
¶ 176 Additionally, there was testimony that defendant was involved in seeking a solution to the
problem with the decking. For instance, Majestic testified that the decision to use plywood to
solve the problem was a collaboration between Sullivan Roofing and defendant, and Sullivan
testified that “after a conference between John [Zelasco] and the powers that be at Sullivan, that
was a solution that was implemented.” Moreover, several of the witnesses testified that
defendant gave the order to stop using ATVs to push the rolls of rubber membrane. Sullivan
testified that use of ATVs was temporarily stopped: “That was a decision made at the point in
time [that] all this happened, to stop everything, and we had to figure out a way that we could use
them again and get things rolling and be able to load -- so we wouldn’t damage the deck.” Pesek
testified that “it was more likely than not that there was an order to not use the Hondas to push
the rolls,” and testified that “the order to not use the Hondas either came from Dave Majestic or
the [defendant’s] superintendent on this job.” Plaintiff’s brother also testified that the crew was
ordered not to use ATVs to push the rolls by someone wearing a white hard hat, and the evidence
established that defendant’s employees wore hard hats. Finally, plaintiff testified that Zelasco
ordered the workers to cease using ATVs to move the rolls of rubber membrane.
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¶ 177 Thus, the evidence at trial focused specifically on defendant’s involvement in the decision
to manually push the rolls of rubber membrane, and the testimony related to that issue was
sufficient for a jury to find control. Since, under the facts in the case at bar, the jury considered
the same evidence as would have been presented had an accurate instruction been given, we find
no prejudice and, consequently, no reversible error. See Studt, 2011 IL 108182, ¶¶ 28-29
(despite an inaccurate jury instruction indicating that evidence other than expert testimony would
suffice to establish the standard of care in a professional negligence action, finding no serious
prejudice because evidence of the standard of care was in fact introduced through expert
testimony).
¶ 178 C. Improper Jury Verdict Form
¶ 179 Defendant next argues that he is entitled to a new trial due to the inclusion of Sullivan
Roofing, plaintiff’s employer, on verdict form B, which was based on IPI Civil (2011) No.
B45.03.A. On that form, the jury found:
“Assuming that 100% represents the total combined legal
responsibility of all persons or entities that proximately caused
Teodoro Ramirez’s injury, we find the percentage of legal
responsibility attributable to each as follows:
a) Teodoro Ramirez 20%
b) FCL Builders, Inc. 40%
c) Sullivan Roofing, Inc. 40%.”
Defendant argues that Sullivan Roofing should not have been included on the verdict form. We
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agree.
¶ 180 “An abuse of discretion standard applies when we review a trial court’s decisions relating
to verdict forms.” Werner v. Nebal, 377 Ill. App. 3d 447, 457 (2007) (citing People v. Roberts,
351 Ill. App. 3d 684, 690 (2004)); Gold v. Ziff Communications Co., 322 Ill. App. 3d 32, 45
(2001). “The standard for deciding whether a trial court abused its discretion and the propriety of
tendered [jury] instructions is ‘whether the jury was fairly, fully and comprehensively informed
on the relevant principles, considering the instructions in their entirety.’ ” Auten v. Franklin, 404
Ill. App. 3d 1130, 1137 (2010) (quoting Saunders v. Schultz, 20 Ill. 2d 301, 314 (1960)).
¶ 181 Analysis of the verdict form requires consideration of section 2-1117 of the Code of Civil
Procedure (the Code), which provides:
“Except as provided in Section 2-1118, in actions on account of
bodily injury or death or physical damage to property, based on
negligence, or product liability based on strict tort liability, all
defendants found liable are jointly and severally liable for
plaintiff’s past and future medical and medically related expenses.
Any defendant whose fault, as determined by the trier of fact, is
less than 25% of the total fault attributable to the plaintiff, the
defendants sued by the plaintiff, and any third party defendant
except the plaintiff’s employer, shall be severally liable for all
other damages. Any defendant whose fault, as determined by the
trier of fact, is 25% or greater of the total fault attributable to the
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plaintiff, the defendants sued by the plaintiff, and any third party
defendants except the plaintiff’s employer, shall be jointly and
severally liable for all other damages.” 735 ILCS 5/2-1117 (West
2008).
Under the express terms of section 2-1117, any fault of Sullivan Roofing, as plaintiff’s employer,
cannot be included in the apportionment of fault for the purposes of determining defendant’s
joint and several liability. Consequently, defendant argues that Sullivan Roofing likewise could
not have been included on the verdict form.
¶ 182 Based on our research, there have been no cases considering the issue of whether a
plaintiff’s employer can be included on the verdict form filed after our supreme court issued its
decision in Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008), a decision that we
find controls the outcome of the issue. In Ready, our supreme court considered whether settling
tortfeasors were considered “ ‘defendants sued by the plaintiff’ ” within the meaning of section
2-1117. Ready, 232 Ill. 2d at 374 n.2 (quoting 735 ILCS 5/2-1117 (West 2004)). There, the
plaintiff’s husband was killed during a construction project and the plaintiff filed a wrongful-
death suit against the building owner, her husband’s employer; the general contractor; and a
subcontractor on the project. Ready, 232 Ill. 2d at 372. The building owner and the general
contractor settled prior to trial. Ready, 232 Ill. 2d at 372. During trial, the subcontractor was not
permitted to present any evidence as to the conduct of the settling defendants and the settling
defendants were not listed on the verdict form; the jury found the subcontractor liable for
negligence and the trial court found the subcontractor jointly and severally liable for the amount
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of the verdict remaining after offsets for the husband’s comparative negligence and the
settlement amounts paid by the settling defendants. Ready, 232 Ill. 2d at 373.
¶ 183 On appeal, the subcontractor argued that the trial court erred by failing to include the
settling defendants on the verdict form, claiming that if the jury had been able to consider their
share of fault, the subcontractor’s share may have been less than 25%, making the subcontractor
only severally liable. Ready, 232 Ill. 2d at 373. The appellate court agreed, concluding that,
under section 2-1117, a nonsettling defendant’s fault should be assessed relative to the fault of all
defendants, including settling defendants, and, thus, the settling defendants should have been
included on the verdict form for purposes of fault apportionment. Ready, 232 Ill. 2d at 373-74.
¶ 184 The supreme court, however, after considering the language and history of the statute,
found that nonsettling defendants are not “ ‘defendants sued by the plaintiff’ ” within the
meaning of section 2-1117, stating that “we disagree with the appellate court’s holding that,
under section 2-1117, a remaining defendant’s culpability must be assessed relative to the
culpability of all defendants, including settling defendants.” Ready, 232 Ill. 2d at 383.
Accordingly, the supreme court held that “section 2-1117 does not apply to good-faith settling
tortfeasors who have been dismissed from the lawsuit” and reversed the portion of the appellate
court’s judgment that reversed the trial court as to liability. Ready, 232 Ill. 2d at 385.
¶ 185 After the supreme court’s 2008 decision in Ready, appellate courts and parties have
uniformly interpreted Ready as preventing settling defendants from appearing on a verdict form.
See Miranda v. Walsh Group, Ltd., 2013 IL App (1st) 121674, ¶ 14 (noting that, in Ready, “our
supreme court held that a settling defendant was not a ‘defendant sued by the plaintiff’ under
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section 2-1117 of the Code and should not be named on the jury verdict form for the
appropriation of fault”); Cellini v. Village of Gurnee, 403 Ill. App. 3d 26, 37 (2010) (during a
hearing on a motion for a good-faith finding between settling parties, a nonsettling defendant
argued “that in light of our supreme court’s decision in Ready v. United/Goedecke Services, Inc.,
which held that a settling tortfeasor was not a ‘defendant’ considered in apportioning fault and
would not be listed on the verdict form, a nonsettling defendant *** would be ‘left holding the
bag’ ”); Jablonski v. Ford Motor Co., 398 Ill. App. 3d 222, 271 (2010) (finding that the trial
court did not abuse its discretion in refusing a defendant’s proposed verdict forms, which would
have required the jury to allocate fault between the defendant and a settling tortfeasor, due to the
supreme court’s decision in Ready).
¶ 186 Indeed, at least one court has found reversible error where a settling tortfeasor was
improperly listed on the jury verdict form. In Heupel v. Jenkins, 395 Ill. App. 3d 689, 690
(2009), the plaintiff was injured when the defendant’s vehicle collided with another vehicle,
driven by Murugeson. Prior to filing suit, the plaintiff settled with Murugeson and, after a jury
trial, the jury returned a verdict in favor of the defendant. Heupel, 395 Ill. App. 3d at 690. On
appeal, the plaintiff argued, inter alia, that the trial court erred by including Murugeson on one of
the jury verdict forms and the appellate court affirmed. Heupel, 395 Ill. App. 3d at 690.
¶ 187 In determining that inclusion of Murugeson on the jury verdict form was proper, the court
in the original opinion filed in 2008 addressed policy reasons:
“Presumably in the case at bar, plaintiff settled with the ‘indigent’
tortfeasor with the intent of insulating Murugeson from the issue of
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fault and proceeded against defendant, the ‘wealthy’ tortfeasor,
who the jury ultimately concluded was not liable. Moreover,
unlike the driving concern in Blake [v. Hy Ho Restaurant, Inc., 273
Ill. App. 3d 372, 374 (1995)], namely, that allowing the jury to
consider settled tortfeasors in the fault allocation would expose
them to the expense of discovery and ‘frustrate Illinois public
policy favoring peaceful and voluntary resolutions of claims
through settlement agreements’ [citation], plaintiff in the instant
case essentially brought Murugeson into the case as a party when
she called Murugeson as a witness to disprove defendant’s ‘empty
chair defense.’ Plaintiff’s attempt to use Murugeson and the prior
settlement as both a sword and a shield completely contradicts the
spirit and purpose of section 2-1117 of the Code. Consequently,
we conclude that naming Murugeson on the jury verdict form was
proper.” Heupel v. Jenkins, 379 Ill. App. 3d 893, 904 (2008)
(opinion prior to remand).
¶ 188 After the supreme court decided Ready, it vacated the judgment in Heupel and directed
the Heupel court to reconsider its decision in light of Ready. On reconsideration, the
Heupel court reversed and remanded the case for a new trial. Heupel, 395 Ill. App. 3d at 690.
The Heupel court determined that, based on Ready, Murugeson was not a “defendant sued by the
plaintiff” within the meaning of section 2-1117 and, consequently, should not have been listed on
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the jury verdict form. Heupel, 395 Ill. App. 3d at 693. Furthermore, the court determined that
the inclusion of Murugeson’s name on the verdict form constituted reversible error warranting a
new trial because “here, the jury heard a great deal of testimony regarding Murugeson’s role in
the collision” and “we cannot be certain that the jury did not consider the amount of fault
attributable to Murugeson.” Heupel, 395 Ill. App. 3d at 693.
¶ 189 In the case at bar, we are not asked to consider the presence of a settling tortfeasor on a
jury verdict form. Instead, we are asked to consider the presence of plaintiff’s employer, Sullivan
Roofing, on the form. However, we find that the same result must follow.
¶ 190 As defendant notes, there is no doubt that Sullivan Roofing is specifically excluded from
an apportionment of fault under section 2-1117 of the Code. Thus, the sole question is whether
that exclusion also means that Sullivan Roofing should have been excluded from the jury verdict
form. The trial court and plaintiff rely on the comments to the IPI jury verdict form to support
Sullivan Roofing’s presence on the verdict form. The comments attempted to reconcile Ready
with older cases finding that the fault of nonparty tortfeasors could be considered. Quoting
Bofman v. Material Service Corp., 125 Ill. App. 3d 1053 (1984), and Smith v. Central Illinois
Public Service Co., 176 Ill. App. 3d 482 (1988),14 the comments note:
“ [‘]Consideration of the negligence of both parties and non-parties
to an action is essential for determining liability commensurate
with degree of total fault.’ [Citation.] [‘]In cases where
14
We note that neither Bofman nor Smith has been cited for this proposition since Ready
was decided.
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contributory negligence is involved, it is permissible to introduce
evidence of the liability of a non-party. The liability of non-party
tortfeasors may be considered in order to determine the extent of
plaintiff’s responsibility for his injuries.’ [Citation.]” IPI Civil
(2011) No. B45.03.A, Comment, at 229.
The comments then continue:
“In Bofman, a plaintiff was able to obtain reversal of a
verdict because the jury was not properly instructed to account for
the negligence of a settled nonparty. While Ready v.
United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008) held that the
percentage fault of a defendant who settled is not part of the
calculation under 735 ILCS 5/2-1117, that case did not reduce the
vitality of Bofman or Smith. If the jury hears evidence to suggest
fault on the part of settled parties and if contributory negligence is
claimed, the settled parties should be listed on the verdict form to
correctly determine the percentage contributory fault of the
plaintiff. The fault of the settling parties, however, should be
disregarded for purposes of the 2-1117 calculation.” IPI Civil
(2011) No. B45.03.A, Comment, at 230.
However, application of the rule proposed by the comments demonstrates that these comments
are inconsistent with the holding in Ready.
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¶ 191 In Ready, as noted, the supreme court reversed the appellate court’s determination that
settling tortfeasors should be listed on the jury verdict form, finding that “section 2-1117 does
not apply to good-faith settling tortfeasors who have been dismissed from the lawsuit.” Ready,
232 Ill. 2d at 385. Ready came before the supreme court again after its remand to the appellate
court, and the supreme court then determined that the trial court erred in excluding evidence of
the settling parties’ culpability, finding that it would have supported the defendant’s sole-
proximate-cause defense. Ready v. United/Goedecke Services, Inc., 238 Ill. 2d 582, 591-92
(2010). Thus, despite the settling defendants’ absence from the verdict form, evidence of their
culpability should have been presented to the jury. According to the IPI comments, then, since
(1) the jury should have heard evidence to suggest fault on the part of settled parties and (2) the
jury found the plaintiff’s comparative negligence to be 35% (Ready, 232 Ill. 2d at 373), meaning
that contributory negligence was claimed, it would follow that “the settled parties should be
listed on the verdict form to correctly determine the percentage contributory fault of the plaintiff”
(IPI Civil (2011) No. B45.03.A, Comment, at 230). However, the supreme court held that the
settled parties should not be listed on the verdict form, without any reference to the impact of the
settled parties’ absence on the plaintiff’s percentage of fault. Indeed, none of the cases citing
Ready and concluding that settled tortfeasors should not appear on the verdict form contain any
discussion of the determination of the plaintiff’s level of fault. Instead, the conclusion to be
drawn is that the section 2-1117 analysis determines whether the nonparty may appear on the
verdict form. See also Jones, 381 Ill. App. 3d at 31-32 (determining that, based on section 2-
1117, “in order for [a nonparty] to be included on the verdict form, it must have been named as a
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party” by the defendant). Here, since section 2-1117 expressly excludes Sullivan Roofing as
plaintiff’s employer, Sullivan Roofing should not have been named on the verdict form.
¶ 192 We do not find plaintiff’s argument that “defendant cannot have it both ways, legally or
equitably,” to be persuasive. As noted, the Heupel court identified policy reasons for including
Murugeson on the verdict form. Heupel, 379 Ill. App. 3d at 904 (opinion prior to remand).
Despite those reasons, in light of Ready, the court was compelled to find that Murugeson should
not have been listed on the jury verdict form. Heupel, 395 Ill. App. 3d at 693. Likewise, in the
case at bar, although plaintiff poses reasonable arguments for including Sullivan Roofing on the
verdict form, our supreme court’s decision in Ready is equally applicable here, where section 2-
1117 expressly excludes that entity from apportionment of fault.
¶ 193 However, despite our conclusion that Sullivan Roofing should not have been listed on the
verdict form, reversal on the basis of faulty jury instructions is not warranted unless the error
results in “ ‘serious prejudice’ ” to the appellant’s right to a fair trial. Studt, 2011 IL 108182,
¶ 28 (quoting Heastie, 226 Ill. 2d at 543); Schultz, 201 Ill. 2d at 274 (“A reviewing court
ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the
jury and resulted in prejudice to the appellant.”). In the case at bar, defendant’s brief does not
specify any prejudice it suffered from the improper verdict form, and it is difficult to determine
where any prejudice would arise. This is not a situation where a party was excluded from a
verdict form erroneously, such that a proper jury form would likely lessen the defendant’s
percentage of fault. Instead, here, fault was apportioned among more parties, presumably
resulting in defendant bearing a smaller share of fault than would otherwise be the case.
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¶ 194 During oral argument, defendant’s counsel stated that defendant was prejudiced because
the 40% fault allocated to Sullivan Roofing would have instead been allocated to plaintiff had
Sullivan Roofing been excluded from the verdict form. We do not find this argument persuasive.
The evidence at trial established that either Sullivan Roofing (under defendant’s view) or
defendant (under plaintiff’s view) ordered the workers to stop using ATVs and push the
membrane rolls manually; there is absolutely no evidence that plaintiff made the choice to
manually roll the membrane independently. Any share of the fault apportioned to plaintiff
involved the question of whether more people should have assisted in moving the roll. Thus, we
find no merit in defendant’s contention that Sullivan Roofing was factually more aligned with
plaintiff than with defendant. Normally, the more parties listed on a jury verdict form will help a
defendant more than a plaintiff. Since we cannot find that defendant was seriously prejudiced by
the erroneous verdict form, we find no reversible error.
¶ 195 D. Admission of Evidence
¶ 196 Next, defendant claims that the trial court erred in refusing to permit the Sullivan Roofing
incident report into evidence and in permitting the contract between defendant and the property
owner to be admitted into evidence. The decision to admit or exclude evidence rests within the
sound discretion of the trial court and that decision will not be disturbed absent an abuse of
discretion. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). A trial court abuses its discretion only
when “no reasonable person would take the view adopted by the trial court.” (Internal quotation
marks omitted.) Foley v. Fletcher, 361 Ill. App. 3d 39, 46 (2005). Moreover, a party is not
entitled to reversal based upon the trial court’s evidentiary rulings unless the error substantially
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No. 1-12-3663
prejudiced the aggrieved party and affected the outcome of the case. Bosco v. Janowitz, 388 Ill.
App. 3d 450, 462 (2009). The party seeking reversal bears the burden of establishing such
prejudice. Bosco, 388 Ill. App. 3d at 462.
¶ 197 1. Sullivan Roofing Incident Report
¶ 198 First, defendant argues that the trial court erred in refusing to permit the Sullivan Roofing
incident report into evidence. During Sullivan’s testimony, defense counsel attempted to
introduce an incident report completed by Sullivan into evidence. Sullivan testified that plaintiff
reported his back injury to Sullivan, who filled out an incident report in his capacity as safety
director; Sullivan testified that keeping such reports was part of Sullivan Roofing’s normal
course of business. Sullivan further testified that the report was in his handwriting and bore his
signature. Defense counsel then sought to admit the report into evidence, and plaintiff’s counsel
objected. After examining the document and further questioning of Sullivan outside the
presence of the jury, the court sustained the objection: “The objection as to the record itself is
sustained. Whatever you choose to have him testify to as to his memory is still of evidentiary
value. But because of the lack of reliability on the dates based on the voir dire and the ***
deposition, I’m going to sustain the objection. I don’t *** find it to be within the business
records exception because of lack of reliability. The rest of the testimony is up to you.” The
court further noted: “It has to be created in an ordinary course of business and if it’s on or about
the time. That’s why they’re reliable. And what we have is that missing element. It wasn’t
created on or about the time because he says the date may be wrong and I don’t remember.”
¶ 199 On appeal, defendant argues that the trial court erred in concluding that the incident
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No. 1-12-3663
report did not qualify as a business record and was, therefore, inadmissible hearsay. Admission
of business records into evidence is governed by Supreme Court Rule 236, which provides:
“Any writing or record, whether in the form of any entry in a book
or otherwise, made as a memorandum or record of any act,
transaction, occurrence, or event, shall be admissible as evidence
of the act, transaction, occurrence, or event, if made in the regular
course of any business, and if it was the regular course of the
business to make such a memorandum or record at the time of such
an act, transaction, occurrence, or event or within a reasonable time
thereafter. All other circumstances of the making of the writing or
record, including lack of personal knowledge by the entrant or
maker, may be shown to affect its weight, but shall not affect its
admissibility. The term ‘business,’ as used in this rule, includes
business, profession, occupation, and calling of every kind.” Ill. S.
Ct. R. 236(a) (eff. Aug. 1, 1992).
Thus, if it was the regular course of the business to make such a memorandum at the time of such
an act, “Rule 236 requires only that the party tendering the record satisfy the foundation
requirement of demonstrating that the record was made in the regular course of business and at or
near the time of the transaction.” In re Estate of Weiland, 338 Ill. App. 3d 585, 600 (2003)
(citing Progressive Printing Corp. v. Jane Byrne Political Committee, 235 Ill. App. 3d 292, 305
(1992)); Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 414 (2005).
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¶ 200 In the case at bar, the trial court found that the incident report did not qualify as a
business record because Sullivan’s testimony was insufficient to demonstrate that the incident
report was made at or near the time of plaintiff’s injury. We cannot find that the trial court
abused its discretion in making that determination. Sullivan testified, and the incident report
stated, that plaintiff’s injury was reported to Sullivan on October 11; however, Sullivan admitted
that the payroll records indicated that plaintiff’s last day on the payroll was October 7. More
importantly, however, Sullivan further admitted that it was possible that he was standing on a
different roof, and not the Wilton roof, when plaintiff informed him of the incident and that “my
dates could be wrong on the document. And I don’t know. I can’t verify that. But I remember
specifically standing there talking to him.” Given this uncertainty by the report’s preparer over
the date the report was completed, we cannot find that the trial court abused its discretion in
determining that defendant had not satisfied the foundational requirements for admission of the
incident report as a business record.
¶ 201 Defendant argues that courts have repeatedly ruled that “ ‘a reasonable time thereafter’
can encompass a period of time far, far longer than the few days at issue in the case at bar.” For
support, defendant cites Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill. App. 3d 72, 85 (1993),
in which a document prepared approximately two weeks after an injury was considered
reasonable, and Amos v. Norfolk & Western Ry. Co., 191 Ill. App. 3d 637, 646 (1989), in which a
one-month delay was reasonable. However, the trial court’s decision was not based on the fact
that the incident was reported on October 11 when the injury occurred on October 6. Instead, the
trial court’s concern was that “[i]t wasn’t created on or about the time because he says the date
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No. 1-12-3663
may be wrong and I don’t remember.” In other words, the date reported was not the issue; the
issue was that the preparer of the report did not know exactly when the document was prepared.
We cannot find that excluding the document on this basis was error.
¶ 202 Defendant also argues that the incident report should have been admitted because it was
the admission of a party opponent and, thus, not hearsay at all. “Any oral or written out-of-court
statement by a party to the action, or attributable to a party, which tends to establish or disprove
any material fact in a case is an admission and is competent evidence against that party in the
action.” Ficken v. Alton & Southern Ry. Co., 291 Ill. App. 3d 635, 647 (1996) (citing Werner v.
Botti, Marinaccio & DeSalvo, 205 Ill. App. 3d 673, 679 (1990)); CFC Investment, L.L.C. v.
McLean, 387 Ill. App. 3d 520, 529 (2008). “The admissibility of such statements of fact rests on
the presumption that courts can usually rely on statements made against the speaker’s interests.”
CFC Investment, 387 Ill. App. 3d at 529 (citing Felker v. Bartelme, 124 Ill. App. 2d 43, 50
(1970)). However, in the case at bar, the trial court expressly found that the incident report was
not reliable based on the discrepancy over when it was completed. Thus, we cannot find that it
should have been admitted as an admission of a party opponent. See Zaragoza v. Ebenroth, 331
Ill. App. 3d 139, 141-42 (2002) (in order for a codefendant’s testimony of a conversation
between the codefendant and the defendant to be admissible as a party admission, the defendant
“must have been a party opponent, he must have made an admission, and the [codefendant’s]
testimony must have been reliable”). The same reasoning applies to defendant’s claim that, since
it would not have been offered to prove the truth of the matter asserted, it was not hearsay at all.
¶ 203 Moreover, even if the report should have been admitted, its exclusion does not constitute
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No. 1-12-3663
reversible error because the same information was presented to the jury through Sullivan’s
testimony. Sullivan testified that, at one point during the two weeks of the Wilton project,
plaintiff approached him on the roof of the Wilton project and informed him and Pesek that he
had been pushing a bundle of insulation alone “and felt a twinge in his back.” Sullivan further
testified that, based on the time sheets, plaintiff was working on a different project on Monday,
September 27. He was working on the Wilton project on September 28 and 29, and was working
on a third project on September 30 and did not work on Friday, October 1. Thus, the jury heard
that plaintiff had initially given a different account of the injury and that plaintiff was working on
other Sullivan Roofing projects during the same time frame. Accordingly, we affirm the trial
court’s decision not to admit the incident report into evidence.
¶ 204 2. General Contract
¶ 205 Defendant also argues that the trial court erred in admitting the contract between
defendant and the property owner into evidence because it was not relevant. Defendant
emphasizes that the issue central to the case is the determination of who had control as between
Sullivan Roofing, the subcontractor, and defendant, the general contractor – not the question of
who had control as between the general contractor and the property owner, which was the only
purpose of the contract between defendant and the property owner.
¶ 206 “The rule is stark and absolute: ‘Irrelevant evidence is not admissible.’ ” Downey v.
Dunnington, 384 Ill. App. 3d 350, 387 (2008) (quoting Maffett v. Bliss, 329 Ill. App. 3d 562, 574
(2002)). “ ‘[E]vidence is relevant if it has any tendency to make the existence of a fact that is of
consequence to the determination of the action either more or less probable [than] it would be
77
No. 1-12-3663
without the evidence.’ ” In re Estate of Bitoy, 395 Ill. App. 3d 262, 277 (2009) (quoting Downey,
384 Ill. App. 3d at 387). In the case at bar, we cannot find that the contract was irrelevant and,
therefore, inadmissible.
¶ 207 The contract between defendant and the property owner indicated that, as between
defendant and the property owner, defendant was “solely responsible for the construction, means,
methods, techniques, sequences and procedures and to coordinate all portions of the work,” as
Puchalski testified. Additionally, under the contract, defendant undertook the responsibility of
safety for the work site. Finally, although not mentioned by either party, the contract included a
provision in which defendant could require each subcontractor “to assume toward the Contractor
all the obligations and responsibilities, including the responsibility for safety of the
Subcontractor’s Work, which the Contractor, by these Documents, assumed toward the Owner
and Architect.” Thus, the contact was relevant in assisting the jury to determine the issue of
control.
¶ 208 Defendant argues that we have repeatedly held that contract between a general contractor
and a property owner “simply has no bearing on the Section 414 analysis.” However,
defendant’s cited cases do not support that argument. While the contract between the general
contractor and the property owner certainly is substantially less relevant for the section 414
analysis than the contract between the general contractor and the subcontractor, none of
defendant’s cited cases has determined that the contract should not be admissible at all because it
is irrelevant; indeed, all of the cases involve motions for summary judgment and do not consider
evidentiary issues. Accordingly, we cannot find that the trial court abused its discretion in
78
No. 1-12-3663
finding the contract admissible.
¶ 209 Defendant further argues that, even if the contract was relevant, plaintiff failed to lay a
proper foundation for its admission and the trial court “grossly overstepped its bounds in
assisting Plaintiff by forcing Defendant FCL in mid-trial to produce a foundation witness for
Plaintiff.” We find defendant’s argument unpersuasive.
¶ 210 After the trial court found that Zelasco had not laid a proper foundation for the admission
of the contact, plaintiff’s counsel indicated that they had relied on defendant’s disclosure that
Zelasco would lay a foundation for the contract, so they were “kind of in a bind here,” since he
was unable to do so. Plaintiff’s counsel requested that, “if the Court feels the foundation, as it
relates to the contract specifically, is inadequate, then I -- given the [Rule] 213 disclosure of
defense, relative to Mr. Zelacso, I think I’m entitled to call a record keeper, a signatory or
somebody from FCL that can lay the foundation, notwithstanding the fact it’s the day before I
rest my case.” Over defendant’s objection, the court agreed and told defendant, “you’re on notice
that I would grant plaintiff’s motion. And that the request will come to you, I’m assuming,
within the next 12 hours. And that before this case is put to rest, I expect to see some discussion
and/or resolution one way or another.” The next day, plaintiff called Christopher Linn, vice
president of defendant, who provided the necessary foundation and the contract was admitted
into evidence.
¶ 211 An examination of the record reveals that plaintiff relied on Zelasco, defendant’s
employee, to provide a foundation for the contract, as disclosed in defendant’s discovery
responses. When Zelasco was unable to do so, the trial court ordered defendant to provide
79
No. 1-12-3663
another employee that could provide the sufficient foundation. Defendant argues that its
discovery disclosures said only that Zelasco would testify as to the subcontracts on the Wilton
project. However, these disclosures are not included in the record on appeal, so we cannot make
any comment as to their contents. Accordingly, we cannot find any error in the trial court’s
conduct and affirm its decision as to the admission of the contact between defendant and the
property owner.
¶ 212 E. Discovery Violations
¶ 213 Defendant also argues that the trial court erred in permitting the testimony of Jaime Rojas
and David Gibson to be presented due to the improper disclosure of these witnesses under Rule
213. “The admission of evidence pursuant to Rule 213 is within the sound discretion of the trial
court, and the court’s ruling will not be disturbed absent an abuse of that discretion.” Sullivan v.
Edward Hospital, 209 Ill. 2d 100, 109 (2004). As noted, trial court abuses its discretion only
when “no reasonable person would take the view adopted by the trial court” (internal quotation
marks omitted) (Foley, 361 Ill. App. 3d at 46) and a party is not entitled to reversal based upon
the trial court’s evidentiary rulings unless the error substantially prejudiced the aggrieved party
and affected the outcome of the case. (Bosco, 388 Ill. App. 3d at 462).
¶ 214 The Rule 213 disclosure requirements are mandatory and subject to strict compliance by
the parties. Sullivan v. Edward Hospital, 209 Ill. 2d at 109; Warrender v. Millsop, 304 Ill. App.
3d 260, 265 (1999). In Sullivan, the Illinois Supreme Court stated that its rules were its best
efforts to manage the complex and important process of discovery. Sullivan, 209 Ill. 2d at 109.
“To allow either side to ignore Rule 213's plain language defeats its purpose and encourages
80
No. 1-12-3663
tactical gamesmanship.” Sullivan, 209 Ill. 2d at 109-10 (citing Department of Transportation v.
Crull, 294 Ill. App. 3d 531, 537 (1998)). In the case at bar, even if disclosure of plaintiff’s
witnesses violated Rule 213, we cannot find that the trial court abused its discretion in permitting
the witnesses to testify.
¶ 215 Our Illinois Supreme Court has set forth six factors that must be considered in
determining whether the exclusion of testimony is an appropriate sanction for nondisclosure: (1)
the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the
testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and
(6) the good faith of the party calling the witness. Sullivan, 209 Ill. 2d at 110.
¶ 216 1. Jaime Rojas
¶ 217 With regard to Jaime Rojas, plaintiff purportedly disclosed Rojas as a Rule 213(f)(2)
witness in a January 4, 2012, letter to defense counsel; however, defense counsel claimed not to
have received the letter and only learned of Rojas when plaintiff’s counsel faxed a notice of
evidence deposition. We have no way of knowing whether the letter was sent or received;
however, the trial court heard defendant’s argument that counsel never received the letter and
nevertheless permitted the evidence deposition to take place and permitted the evidence
deposition to be presented to the jury.15
¶ 218 Considering the factors set forth in Sullivan, we cannot find that the trial court abused its
discretion in refusing to bar Rojas’ testimony. Rojas testified that he performed a functional
15
We note that different judges decided the motion to quash the evidence deposition and
the motion in limine seeking to bar Rojas’ testimony.
81
No. 1-12-3663
capacity assessment of plaintiff and opined that plaintiff could only work at a light physical
demand level. If defendant did not know of Rojas’ existence until two days before his
deposition, it was certainly surprised and timely objected, and there is no issue of defendant’s
diligence in other discovery matters. However, as noted, it is unclear whether defendant had
prior notice of Rojas’ status as a Rule 213(f)(2) witness. Additionally, the nature of his
testimony and its prejudicial effect are small; plaintiff had several witnesses testify as to
plaintiff’s limitations, and Rojas’ testimony concerned a single evaluation and an opinion limited
to plaintiff’s condition on that day. Finally, there is no indication that plaintiff was not acting in
good faith: plaintiff had retained new counsel in October 2011, and counsel explained the
reasons for the evidence deposition to the trial court, stating that it had only been recently
discovered that Rojas was now living in Colorado and he would only be available for a few days.
¶ 219 We find defendant’s citation of Nedzvekas v. Fung, 374 Ill. App. 3d 618 (2007), and Boyd
v. City of Chicago, 378 Ill. App. 3d 57 (2007), to be unpersuasive. In both cases, the reviewing
court was determining whether the trial court had abused its discretion in barring witnesses due
to Rule 213 violations and determined that it had not. However, in the case at bar, we are
considering whether the trial court abused its discretion in not barring Rojas. Consequently,
defendant’s cases are of limited use and we cannot find that the trial court abused its discretion in
permitting Rojas to testify.
¶ 220 2. David Gibson
¶ 221 Defendant’s only arguments concerning Gibson involve prejudice. While defendant
acknowledges that Gibson was disclosed with sufficient time to be deposed, defendant also
82
No. 1-12-3663
argues that Gibson’s testimony was much more prejudicial, since Gibson attached a dollar figure
to plaintiff’s losses. However, considering the other factors, we cannot find that the trial court
abused its discretion in permitting Gibson to testify. There was no indication that plaintiff acted
in bad faith, and defendant’s surprise was limited, as plaintiff’s new counsel immediately made
an oral motion to disclose a damages witness upon taking over the case. Additionally, defendant
had sufficient time to retain its own damages expert, as defendant stated during the hearing on
the motion in limine to bar Gibson, so defendant could have mitigated the damaging nature of
Gibson’s testimony.16 Accordingly, we cannot find that the trial court abused its discretion in
permitting Gibson to testify.
¶ 222 F. Cumulative Error
¶ 223 Finally, defendant argues that the cumulative errors during the trial require a new trial.
“A new trial is necessary when the cumulative effect of trial errors so deprives a party of a fair
trial that the verdict might have been affected.” Netto v. Goldenberg, 266 Ill. App. 3d 174, 184
(1994). However, in the case at bar, we cannot find that defendant was deprived of a fair trial
such that the verdict might have been affected.
¶ 224 CONCLUSION
¶ 225 The trial court did not err in denying defendant’s motion for judgment notwithstanding
the verdict, nor did it err in denying defendant’s motion for a new trial.
¶ 226 Affirmed.
16
Gibson was the only damages witness to testify at trial.
83
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Opinion issued April 19, 2012.
In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00888-CV
———————————
MARIA TERESA ESPINASO HARASIM, Appellant
V.
FEDERAL
NATIONAL MORTGAGE Association a/k/a fannie mae, Appellee
On
Appeal from County Civil Court at Law No. 1
Harris
County, Texas
Trial
Court Cause No. 995246
MEMORANDUM OPINION
Appellant, Maria Teresa Espinaso Harasim, has neither
established indigence nor paid all the required fees. See Tex.
R. App. P. 5 (requiring payment of fees in civil cases unless indigent),
20.1 (listing requirements for establishing indigence); see also Tex. Gov’t Code Ann. § 51.207 (Vernon
Supp. 2011), § 51.941(a) (Vernon 2005), § 101.041 (Vernon Supp. 2011)
(listing fees in court of
appeals); Order Regarding Fees Charged in Civil Cases in the Supreme Court and
the Courts of Appeals and Before the Judicial Panel on Multidistrict
Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28, 2007), reprinted in Tex. R. App. P.
app. A § B(1) (listing fees in court of appeals). After being notified that this appeal was
subject to dismissal, appellant did not respond. See Tex.
R. App. P. 5 (allowing enforcement of rule); 42.3 (allowing involuntary
dismissal of case).
We dismiss the appeal for nonpayment
of all required fees.
We dismiss any pending motions as
moot.
PER CURIAM
Panel
consists of Justices Keyes, Bland, and Sharp.
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979 So.2d 239 (2008)
DAMERON
v.
STATE.
No. 5D08-530.
District Court of Appeal of Florida, Fifth District.
April 8, 2008.
Decision without published opinion. Affirmed.
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209 F.3d 960 (7th Cir. 2000)
H.K. Mallak, Inc., Plaintiff-Appellant,v.Fairfield FMC Corp., Defendant-Appellee.
No. 99-1766
In the United States Court of Appeals For the Seventh Circuit
Argued November 16, 1999Decided April 11, 2000Rehearing En Banc Denied May 9, 2000.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96-C-1207--Lynn Adelman, Judge.
Before Eschbach, Coffey, and Diane P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.
1
This diversity case requires us to construe a Wisconsin statute designed to protect what the common law quaintly called "innkeepers"--today's hotels and motels-- from potentially astronomical liability for theft of property stored by guests in their rooms. The thieves here were either exceptionally lucky or they knew only too well who their target was. As he stepped into his room for the first time, with more than $1 million in diamonds wrapped around his body, salesman Eshagh Kashimallak was assaulted by masked men and stripped of his valuable inventory. Kashimallak and his employer, H.K. Mallak, Inc. ("Mallak") sued Fairfield FMC Corp., the owner of the hotel, seeking respectively damages for personal injuries and property loss. The district court granted summary judgment for Fairfield on Mallak's property claim, and, after oral argument in this court, entered a judgment dismissing Kashimallak's claim with prejudice. Only Mallak has appealed. The narrow question now before us is whether the Wisconsin statute on which the district court relied unequivocally bars Mallak's right to recover. We conclude that it does not, and we therefore reverse and remand for further proceedings.
2
The underlying facts, which we recount in the light most favorable to Mallak, do not involve much more than what we have already described. Kashimallak was a salesperson for Mallak, a wholesale jewelry business incorporated in New York, with its principal place of business in that state. Kashimallak is also a citizen of New York. Kashimallak covered a wide geographical area for Mallak, including the state of Wisconsin. On August 23, 1995, he checked into the Fairfield Inn in Brookfield, Wisconsin, which was managed and operated by defendant Fairfield FMC Corp. (a Delaware corporation with its principal place of business in Maryland). This was not his first visit to that Fairfield Inn; he had stayed there seven or eight times previously on earlier business trips to Wisconsin.
3
The Fairfield Inn at Brookfield does not assign a room number to a guest with a reservation until he or she checks in at the front desk. At that time, the guest signs the reservation card, the clerk hands the guest a plastic key card (known as a "ving" card) that opens the security door to both the floor and the guest's room. It took only two or three minutes for Kashimallak to complete this process when he arrived on August 23. He received his key card and was assigned to room 334. Unbeknownst to Kashimallak, however, there were two peculiarities about room 334 that affected its security. First, four days before his arrival, the hotel had re-keyed room 334 (a step it did not ordinarily take between guests) in order to prevent a guest who had been evicted from the room from re-entering it. At that point, room 334 had three new key cards, the standard number for all rooms at the hotel. Three other guests may have used the room between the re- keying and Kashimallak's arrival. But by the time Kashimallak checked in, only two key cards to room 334 remained and the third was missing. No one told Kashimallak about the missing key when he checked in, or the fact that the holder of the missing key would have access to his room.
4
After he checked in, Kashimallak went directly to his room, carrying two bags. One bag contained his personal effects and the other contained jewelry. He also was carrying jewelry in a special vest and a "money belt" hidden under his shirt. He took the elevator to the third floor, where his room was located, seeing no one either on the elevator or in the hall as he walked to his room. Between the elevator and his room, he had to use his key card twice: once to pass through the locked security door for the floor, and once to get into room 334 itself. Once he had the door open, Kashimallak went into the room, closed the door behind him, secured the chain lock, turned around, and took one step. Two masked men attacked him violently, punching him in the head, threatening him with a gun, and robbing him of the jewelry in the bag, the vest, and the money belt. The attackers stole more than $1 million in loose diamonds, bracelets, necklaces, pendants, earrings, and solitaire diamonds. Neither the attackers nor the stolen property was ever found; thus, at this point no one knows whether the assaulters were ordinary thieves who had crept into the hotel undetected and were lucky enough to choose Kashimallak as their intended victim, hotel employees doing an inside job, or people who knew Kashimallak's business and who had managed to reach room 334 just before he did.
5
Mallak and Kashimallak filed suit against Fairfield in the United States District Court for the Eastern District of New York, seeking damages for Mallak's property loss and Kashimallak's personal injuries. Later, the case was transferred under 28 U.S.C. sec. 1404(a) to the Eastern District of Wisconsin. That court granted Fairfield's motion for summary judgment on Mallak's claim on January 21, 1999, finding that the Wisconsin Hotelkeeper's Liability statute, Wis. Stats. sec. 254.80, barred the property claim as a matter of law. Initially, the parties stipulated that Kashimallak's claim would be dismissed without prejudice and without costs, and that the statute of limitations on that claim would be tolled until the expiration of the final appeal period for Mallak's claim. This court pointed out to the parties at oral argument that this disposition in substance did not dispose of all claims of all parties, as required by 28 U.S.C. sec. 1291 and our decisions in JTC Petroleum Co. v. Piasa Motor Fuels, Inc., 190 F.3d 775 (7th Cir. 1999), and Continental Casualty Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512 (7th Cir. 1999). Although we ordered supplemental briefing on the jurisdictional issue, the parties responded by returning to the district court, which promptly entered an order on November 18, 1999, dismissing Kashimallak's personal injury claim with prejudice and without costs. As in JTC Petroleum, this modification has now eliminated the bar to our jurisdiction, and we can proceed to decide the merits of Mallak's appeal.
6
The Wisconsin Hotelkeeper's Liability statute provides that a hotelkeeper who fulfills certain obligations will not be held liable for a guest's loss of jewelry, precious metals, or gemstones. The relevant section reads as follows:
7
(1) A hotelkeeper who complies with sub. (2) is not liable to a guest for loss of money, jewelry, precious metals or stones, personal ornaments or valuable papers which are not offered for safekeeping.
8
(2) To secure exemption from liability the hotelkeeper shall do all of the following:
9
(a) Have doors on sleeping rooms equipped with locks or bolts.
10
(b) Offer, by notice printed in large plain English type and kept conspicuously posted in each sleeping room, to receive valuable articles for safekeeping, and explain in the notice that the hotel is not liable for loss unless articles are tendered for safekeeping.
11
(c) Keep a safe or vault suitable for keeping the articles and receive them for safekeeping when tendered by a guest, except as provided in sub. (3).
12
(3) A hotelkeeper is liable for loss of articles accepted for safekeeping up to $300. The hotelkeeper need not receive for safekeeping property over $300 in value. This subsection may be varied by written agreement between the parties.
13
Wis. Stats. sec. 254.80. Also relevant is another section of the Wisconsin Hotelkeeper's Liability Act, Wis. Stats. sec. 254.81, which addresses the hotelkeeper's duties once property is tendered to it:
14
Every guest and intended guest of any hotel upon delivering to the hotelkeeper any baggage or other property for safekeeping, elsewhere than in the room assigned to the guest, shall demand and the hotelkeeper shall give a check or receipt, to evidence the delivery. No hotelkeeper shall be liable for the loss of or injury to the baggage or other property of a hotel guest, unless it was delivered to the hotelkeeper for safekeeping or unless the loss or injury occurred through the negligence of the hotelkeeper.
15
The district court concluded that sec. 254.80 operated to protect Fairfield from Mallak's suit. In its proposed findings of fact, submitted under Local Rule 6.05, Fairfield had stated that the Brookfield hotel complied with all of the requirements of sec. 254.80(2). Mallak did not object to that proposed finding, and the district court accordingly took it as uncontested. Mallak also admitted that Kashimallak had not tendered his valuables to the hotel for safekeeping. It argued instead that the posted notice provisions of sec. 254.80(2)(b) did not control, because there was no notice displayed at the registration desk that a new guest could see while checking in. Furthermore, it asserts, Kashimallak was not informed verbally of the tender requirement, and he was assaulted before he ever had the chance to see the notice posted on the back of the bathroom door inside the room. In making this argument, Mallak did not refer to sec. 254.81, but the district court commented in its order granting summary judgment that sec. 254.81 conceivably might afford Mallak a theory of relief, but that it had waived the point. The court specifically noted that there would be a contested issue of material fact over Fairfield's negligence, because it did not re-key room 334 when it discovered that one of the three key cards was missing. H.K. Mallak, Inc. v. Fairfield FMC Corp., 33 F. Supp. 2d 748, 754 (E.D. Wis. 1999).
16
We agree with the district court that Mallak has waived its chance at this stage to rely on sec. 254.81, through its failure to argue the point before the district court. The court's mention of the law in its opinion is not a substitute for a party's proper presentation of the point. The opposing side is entitled to an opportunity to argue the contrary, which would be missing were we to find that the court's awareness of the law is sufficient. We also find no fault in the district court's decision to hold Mallak to its acquiescence in the Rule 6.05 submission, which amounted to an admission that Fairfield had satisfied the three hotelkeeper duties outlined in sec. 254.80(2). We have repeatedly held that district courts are entitled to insist on compliance with local rules designed to make the summary judgment process operate more smoothly, and there is nothing in this case that warrants an exception to that principle. See, e.g., Markham v. White, 172 F.3d 486, 491 (7th Cir. 1999); Bradley v. Work, 154 F.3d 704, 707-08 (7th Cir. 1998); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).
17
These omissions by Mallak may have been perfectly reasonable, at least as to the facts, despite Mallak's efforts before this court to stuff that genie back into the bottle. At this point, they have the effect of distilling the issue before us into the following: does sec. 254.80, which sets forth security measures Wisconsin hotels must take in order to limit their liability for lost jewelry (among other things) and establishes in part a notice-based regime, apply to a case in which the guest did not and (in the light most favorable to him) could not have received the required notice? This was the central theory on which Mallak relied before the district court, and so it is properly before us.
18
There is a dearth of caselaw in Wisconsin construing sec. 254.80, and so, as a federal court sitting in diversity, we must do a certain amount of tea-leaf reading to decide whether Wisconsin law supports Mallak's right to recover on this record. The parties agree that the leading decision is the 82-year old ruling in Busley v. Hotel Wisconsin Realty Co., 164 N.W. 826 (Wis. 1917), which construed the predecessor to sec. 254.80. In Busley, as here, the parties had stipulated that the innkeeper had complied with the applicable statutory notice requirements. An additional stipulation provided that the loss in question occurred either through the theft or the gross negligence of the innkeeper's servants. The court thus had only to consider what was the extent of the innkeeper's liability for the loss of property delivered to him, when that loss occurred without any negligence on his part.
19
The court held that the statute did not eliminate the innkeeper's liability for loss caused by the theft or gross negligence of himself or his servants, although sec. 1726 of the statute in question limited liability to $10 for packages placed under the care of the cashier under the predecessor to sec. 254.81, sec. 1725a. The innkeeper argued that the $10 limitation of liability applied to the loss of money and jewelry, but the court disagreed. Noting that sec. 1725, the predecessor to sec. 254.80, was limited to "money, jewelry and articles of gold or silver manufacture," the court stated that "[i]t never was the legislative intent to limit an innkeeper's liability to $10 for the contents of a package of goods described in section 1725. For the loss of such a package, caused by the gross negligence of himself or his servants, the value thereof is the true measure of damages." 164 N.W. at 828.
20
Busley therefore indicates that, at a minimum, the notice and delivery provisions of the predecessors to sec. 254.80 do not suffice to protect an innkeeper from liability for its own gross negligence or that of its employees. This rule appears to be consistent with the general understanding in the area, although we repeat that there are not many cases to consult. The following decisions, however, all indicate in one way or the other that the statutory limitations found in laws like Wisconsin's (a) do not relieve the hotelkeeper from liability based on acts of its own employees, and (b) merely modify the duty of insurer that the common law otherwise imposed on innkeepers, replacing it with a negligence regime. See, e.g., Shifflette v. Lilly, 43 S.E.2d 289, 293-94 (W. Va. 1947) (holding that a similar statute requiring the deposit of jewelry in the office and the posting of notices did not relieve the innkeeper of the general duty to exercise due care in providing honest servants and to take reasonable precautions to protect the person and property of guests); Rockhill v. Congress Hotel Co., 86 N.E. 740, 741-42 (Ill. 1908) (Illinois statute did not apply to case involving theft of handbag containing valuables and jewelry, where the loss occurred by the negligence of the porter or servants of the hotel); Shamrock Hilton Hotel v. Caranas, 488 S.W.2d 151, 153 (Tex. Civ. App. 1972) (statute limiting hotel liability did not apply to case alleging that loss occurred through the negligence of the hotel); Kutbi v. Thunderlion Enterprises, Inc., 698 P.2d 1044, 1048 (Or. App. 1985) (summary judgment improper in case where plaintiff alleged negligence and gross negligence, including through knowledge of lost master key for area where plaintiff was staying and through loss of key, where jewelry was stolen from room; innkeepers' law only modified common law rule of strict liability).
21
In a case dealing with the check-out process, rather than the check-in process, a New York appellate court found that the hotel was not entitled to summary judgment where a departing guest's tote bag, containing jewelry and other valuables, was snatched away from her while she sat in a livery cab in the hotel's driveway. See Penchas v. Hilton Hotels Corp., 603 N.Y.S.2d 48 (App. Div. 1993). Under those circumstances, notwithstanding the hotelkeepers' liability laws, the hotel continued to have a duty to exercise reasonable care to protect its guests from injury at the hands of third persons who were not hotel employees, and to protect them from the criminal acts of third parties. Id. at 49-50. In our view, in light of the cases mentioned above, we think it likely that a Wisconsin court would follow a similar rule for a guest who was subjected to a criminal act during the process of checking in. Just as the provisions for notice and a safe are no longer useful for a guest who has checked out, they cannot help a guest who has not even penetrated the interior of his room and had a chance to use them. Even if that prediction about Wisconsin law is wrong, however, and Wisconsin gives absolute protection to hotels that have the proper notices posted in the rooms no matter where or when the crime occurs, we are confident that Wisconsin would not extend the protection of the statute to the case of an inside job, as this may have been. We have not found a single jurisdiction that would go so far, and there is no reason to think that Wisconsin would become such an outlier.
22
Before concluding, we add a word about a potentially important aspect of the case that is not before us. In its motions for summary judgment before the district court, Fairfield also argued that it owed no duty to Mallak or Kashimallak to prevent harm from unforeseeable criminal activity by a third party. It has not pursued that argument on appeal as an alternate ground in support of the district court's judgment. Furthermore, Fairfield does not appear ever to have challenged Mallak's right to complain about the theft from Kashimallak. We express no opinion at this point either on the question whether Fairfield has therefore waived its right to introduce that question into the suit on remand, or what the correct answer should be if the issue is properly in the case. We conclude only that the district court erred in granting summary judgment for Fairfield FMC Corp., and the judgment is REVERSED and REMANDED for further proceedings.
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125 F.3d 859
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.Jesus E. RODRIGUEZ, Petitioner-Appellant,v.STATE of California; James Gomez, Director, Dept. ofCorrections, Respondents-Appellees.
No. 96-16365.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 22, 1997.**Decided Sept. 24, 1997.
Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding; No. CV-95-20408-JW.
Before: HALL, BRUNETTI, and THOMAS, Circuit Judges.
1
MEMORANDUM*
2
Jesus E. Rodriguez, a California state prisoner, appeals pro se the district court's summary dismissal of his 28 U.S.C. § 2254 habeas petition challenging his conviction for second degree burglary. We review de novo a district court's decision on a section 2254 petition. See Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir.1995), cert. denied, 116 S.Ct. 1549 (1996). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm in part and reverse in part.
3
Rodriguez contends the district court erred by summarily rejecting his habeas petition in which he raised the following grounds for relief: (1) he received ineffective assistance of counsel; (2) the jury was "premeditated" to find guilt; (3) the trial court erroneously allowed an amendment to the charges on the day of trial; (4) the trial court failed to grant his request for an investigator at state expense; and (5) the prosecution knowingly used false testimony. In its first order filed on December 11, 1995, the district court dismissed the first and fourth claims as patently frivolous but gave Rodriguez the opportunity to amend the other three claims. Rodriguez submitted an amended petition and in it, second order filed on May 15, 1996, the district court summarily dismissed the remaining claims. Nothing in the record shows that the district court obtained and reviewed the state court record.
4
"The district court may enter an order for the summary dismissal of a habeas petition '[i]f it plainly appears from the face of the petition and any Exhibits annexed to it that the petitioner is not entitled to relief in the district court." ' Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.1990) (quoting Rule 4, Rules Governing Section 2254 Cases). Summary dismissal is appropriate only when the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous. See Id.
5
"A district court's denial of a habeas corpus petition may not be affirmed unless the record on appeal indicates that the court independently reviewed all relevant portions of the state court record." Chaney v. Lewis, 801 F.2d 1191, 1193 (9th Cir.1986). The district court has a duty to obtain sua sponte and review the state court record of mixed questions of fact and law. See id. at 1194.
6
Rodriguez, who chose to represent himself in state court, contends that he received "per se ineffective assistance" because the state court would not appoint an attorney other than a public defender. The district court properly rejected this claim as frivolous without examining the state court record. See Gutierrez v. Griggs, 695 F.2d 1195, 1199 (9th Cir.1983) (district court may summarily dismiss claim where petitioner's own statement of facts does not state a viable claim for relief); see also Wheat v. United States, 486 U.S. 153, 159 (1988) (defendant who cannot afford counsel has no right to attorney of his own choosing); Savage v. Estelle, 924 F.2d 1459, 1466 (9th Cir.1990) (noting that defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to ineffective assistance).
7
Rodriguez contends that the jury was "premeditated" to find guilt because none of the jurors were poor and thus they were likely to believe the prosecution and its witnesses because they were all of the same class.1 The district court properly dismissed this claim as frivolous without examining the state court record. See Gutierrez, 695 F.2d at 1198-99; see also United States v. Fletcher, 965 F.2d 781, 782 (9th Cir.1992) (defendant claiming denial of an impartial jury must show that the group alleged to be excluded is a 'distinctive group' of the community and that under-representation of the group is due to systematic exclusion of that group in the jury selection process).
8
Rodriguez alleges that the prosecution amended the information the day of trial to include a charge for receiving stolen property and in so doing denied Rodriguez fair notice of that charge. Rodriguez, however, admitted that he did not object to this amendment and that he was not found guilty of this charge. Accordingly, the district court properly dismissed this claim without examining the state court record. See Gutierrez, 695 F.2d at 1197-98 (district court may summarily dismiss claims that do not allege a deprivation of federal rights).
9
Rodriguez contends that the state court erred by failing to grant his request for an investigator at state expense. Rodriquez alleged that after he made an oral motion for an investigator, he was told to file a written motion. He alleged he did so and that motion was taken off calender without a determination being made. He also alleged that he was not granted access to the county library until one day before "pretrial" and thus could not adequately prepare his motions. The district court rejected Rodriguez's claim as frivolous, on the grounds that a defendant who chooses to represent himself has no right to an investigator paid for by the state; the court concluded that such a right only derived from the appointment of counsel. However, a defendant who chooses to represent himself must be afforded some means for assistance in the preparation of his defense which can include access to expert witnesses, investigators, law books, and means of communication with witnesses). See Milton v. Morris, 767 F.2d 1443 1447 (1985); see also People v. Flaxel, 91 Cal.App.3d 327, 329 (Cal.Ct.App.1979) (self-represented defendant has the right to the same ancillary services as those sought by counsel for an indigent client). Accordingly, we reverse and remand this claim to the district court with instructions to obtain and review the state court record and determine whether an evidentiary hearing is required. See Chaney, 801 F.2d at 1194.
10
Rodriguez contends that the prosecution put forth perjured testimony. Specifically, he alleged that eyewitness Ken Headley's testimony at trial was inconsistent with his taped 911 call and the police report in that price to trial Headley was unable to name the race of defendant or give a detailed description. In addition, Rodriguez alleged that although the officers declared he was carrying a red jacket at the time of his arrest, and that the jacket was reported in Headley's description of him, no such jacket was ever booked as part of the evidence. He further alleged that the prosecution introduced a false exhibit which left out several building structures in order support Headley's claim that he never lost site of Rodriguez from, his office window. Finally, Rodriguez alleged that Detective Contreras was in the courtroom during the trial instructing the witness' testimony. Rodriguez's allegations cannot be dismissed without review of the state court record. See Bonin v. Calderon, 59 F.3d 815, 844 (1995), cert. denied, 116 S.Ct. 718 (1996) (if prosecution knowingly uses perjured testimony or knowingly fails to disclose testimony is false, conviction must be set aside if false testimony could have affected the jury verdict). Accordingly, we reverse and remand this claim to the district court so that it may review the state record and determine whether an evidentiary hearing is required. See Chaney, 801 F.2d at 1194.2
11
AFFIRMED in part; REVERSED AND REMANDED IN PART.
12
Each party shall bear its own costs.
**
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3
1
In his amended petition, Rodriguez also made the statement that there were no blacks in the juror pool. On appeal he states that there were two Hispanics and one black person in the juror pool. However, in both instances he does not allege that there was racial bias in the selection process but instead states that having a jury that knows nothing about poverty renders the jury biased
2
On appeal, Rodriguez also contends that: (1) he was in "jail garb" during trial; (2) he was only permitted four peremptory challenges instead of ten; (3) he was sentenced the same day he was convicted thus depriving him the opportunity for a new trial motion. Because Rodriguez did not present these issues to the district court, we do not consider them here. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994)
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia, FILED
Plaintiff Below, Respondent October 12, 2018
EDYTHE NASH GAISER, CLERK
vs.) No. 17-0911 (Berkeley County 12-F-157) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Michael A. Brown Jr.,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Michael A. Brown Jr., by counsel Sherman L. Lambert Sr., appeals the Circuit
Court of Berkeley County’s September 18, 2017, order revoking his probation and reinstating his
original sentence of two to thirty years of incarceration following his conviction of one count of
possession with intent to deliver a controlled substance and an enhancement under West Virginia
Code § 60A-4-408. The State of West Virginia, by counsel Robert L. Hogan, filed a response in
support of the circuit court’s order. On appeal, petitioner argues that the State failed to satisfy its
burden of proof for revocation and that the circuit court’s underlying sentence is illegal.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In November of 2012, petitioner pled guilty to one count of possession with intent to
deliver a controlled substance in violation of West Virginia Code § 60A-4-401(a)(i). In January
of 2013, the circuit court sentenced petitioner to a term of incarceration of two to thirty years.
Due to a prior felony drug conviction in the State of Florida, petitioner’s sentence included an
enhancement under West Virginia Code § 60A-4-408.1 The circuit court, however, suspended
1
West Virginia Code § 60A-4-408 states, in relevant part, as follows:
(a) Any person convicted of a second or subsequent offense under this
chapter may be imprisoned for a term up to twice the term otherwise authorized,
fined an amount up to twice that otherwise authorized, or both. . . .
(b) For purposes of this section, an offense is considered a second or
subsequent offense, if, prior to his conviction of the offense, the offender has at
(continued . . . )
1
petitioner’s sentence and placed him on probation for a period of five years, subject to certain
terms and conditions, including the following: (1) refrain from violating the law; (2) answer
truthfully the inquires of his probation officer or any law enforcement officer; (3) notify his
probation officer within twenty-four hours if arrested or questioned by law enforcement; (4)
refrain from contact with persons engaged in criminal activity; (5) refrain from using,
consuming, purchasing, possessing, or distributing any drugs or other controlled substance not
lawfully prescribed; (6) refrain from being anywhere drugs are illegally sold, distributed, kept, or
used; and (7) refrain from owning, possessing, carrying, or using any firearm or other lethal
weapon.
In June of 2017, petitioner’s probation officer filed a petition to revoke probation and,
later, an amended petition to revoke probation based on allegations that petitioner violated his
probation by committing the offenses of (1) possession with intent to deliver a controlled
substance (heroin) on May 18, 2017; (2) possession with intent to deliver a controlled substance
(oxycodone) on May 18, 2017; (3) being a prohibited person in possession of a firearm on May
18, 2017; (4) delivery of a controlled substance (heroin) on April 27, 2017; (5) delivery of a
controlled substance (heroin) on May 2, 2017; (6) delivery of a controlled substance (heroin) on
May 8, 2017; and (7) delivery of a controlled substance (heroin) on May 11, 2017. The petition
further alleged that petitioner received a traffic citation on June 29, 2016, but failed to notify his
probation officer of this contact with law enforcement. Finally, the petition alleged that petitioner
possessed or was in the presence of drugs, drug paraphernalia, and a firearm seized during a
search of his bedroom, including fifteen grams of heroin, fourteen oxycodone pills, digital scales,
and a loaded Glock .357 caliber pistol.
The circuit court held a hearing on the revocation petition in September of 2017, during
which petitioner denied the allegations. The State presented the testimony of petitioner’s
probation officer and two law enforcement officers. The probation officer testified to the terms
and conditions of petitioner’s probation and further described the warrants issued for petitioner
regarding the offenses alleged in the petition. One of the law enforcement officers, Corporal
Travis Boyles of the Berkeley County Sheriff’s Department, testified to a search conducted on
May 18, 2017, at petitioner’s home.2 According to Corporal Boyles, petitioner sold what the
officer believed to be narcotics to an individual cooperating with law enforcement during a series
of controlled buys, which preceded the search of petitioner’s residence. Corporal Boyles then
testified to the items seized from petitioner’s bedroom during the search, including the loaded
pistol and what he believed to be narcotics. Corporal Boyles admitted, however, that no
laboratory testing had, at that point, been completed on the substances recovered from
petitioner’s home to determine if they were, in fact, controlled substances.
any time been convicted under this chapter or under any statute of the United
States or of any state relating to narcotic drugs, marihuana, depressant, stimulant,
or hallucinogenic drugs.
2
According to the record, the home in question is a shared residence that belongs to
petitioner’s mother.
2
The second law enforcement officer, Sergeant Theodore Snyder of the Berkeley County
Sheriff’s Department, testified to several controlled buys that an individual cooperating with law
enforcement conducted with petitioner. According to Sergeant Snyder, the informant supplied
petitioner with money and then received what the officer believed to be heroin from petitioner.
Based on his experience as a narcotics investigator and the recorded evidence of the transactions,
Sergeant Snyder testified that he had no reason to believe that the substances petitioner sold were
anything other than heroin, although he confirmed that no laboratory testing had yet been
completed to confirm that the substances in question were controlled substances.
Petitioner’s defense to these charges was, essentially, that the State failed to conduct
laboratory testing or otherwise present evidence that the substances at issue were controlled
substances. The circuit court, however, found that the State established, by a preponderance of
the evidence, that petitioner delivered heroin to a cooperating witness on April 27, 2017; May 2,
2017; May 8, 2017; and May 11, 2017. The circuit court further found that the drugs, drug
paraphernalia, and a firearm were found at petitioner’s residence during the execution of a search
warrant. Therefore, the circuit court found that petitioner violated the terms of his probation,
revoked the same, and reinstated petitioner’s original sentence of two to thirty years of
incarceration. It is from the sentencing order that petitioner appeals.
This Court has previously established the following standard of review:
When reviewing the findings of fact and conclusions of law of a circuit
court sentencing a defendant following a revocation of probation, we apply a
three-pronged standard of review. We review the decision on the probation
revocation motion under an abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of law and
interpretations of statutes and rules are subject to a de novo review.
Syl. Pt. 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997). Upon our review, the Court
finds no error in the circuit court’s revocation of petitioner’s probation.
On appeal, petitioner relies almost entirely upon his assertion that, because no testing was
done to confirm whether the substances he possessed were actually controlled substances, the
State failed to satisfy its burden of proof for revoking his probation. “Because a determination of
criminal guilt is not involved, the standard of proof in a probation revocation hearing is by a
clear preponderance of the evidence and not proof beyond a reasonable doubt.” State v. Ketchum,
169 W.Va. 9, 12-13, 289 S.E.2d 657, 659 (1981). Here, the State clearly met that burden. As this
Court has held, “[w]here probation is revoked on one valid charge, the fact that other charges
may be invalid will not preclude upholding the revocation.” Id. at 10, 289 S.E.2d at 657, Syl. Pt.
3. Given the overwhelming evidence that petitioner committed the offense of being a prohibited
person in possession of a firearm, it is unnecessary to address petitioner’s main argument on
appeal concerning the lack of testing of the substances at issue.
In his brief on appeal, petitioner makes almost no mention of the overwhelming evidence
that established that he committed the offense of being a prohibited person in possession of a
firearm. The only challenges petitioner appears to make regarding the evidence related to this
3
charge are that it was based on hearsay and that “no evidence was adduced at the probation
revocation that the seized items . . . were used, owned or possessed by . . . [p]etitioner.” This
argument directly contradicts the evidence presented below.
Specifically, the State presented direct evidence of petitioner’s commission of the offense
of being a prohibited person in possession of a firearm.3 During his testimony, Corporal Boyles
testified that “officers located a loaded Glock pistol in [petitioner’s] bedroom . . . .” In fact, when
asked how he was aware that the room in question was petitioner’s bedroom, Corporal Boyles
testified that “during the process of securing the residence . . . [petitioner] was located in that
room in which that firearm was located.”4 While petitioner questioned the officer regarding other
individuals who lived in, or had access to, the home, he failed to provide any evidence rebutting
the fact that he possessed the firearm in question found in his bedroom. Given the fact that
petitioner clearly committed the offense of being a prohibited person in possession of a firearm,
we find that it is unnecessary to address petitioner’s argument concerning the validity of his
probation revocation for violations related to controlled substances.
West Virginia Code §§ 62-12-10(a)(1)(B) and (C) set forth, in relevant part, that
[i]f the court or judge finds reasonable cause exists to believe that the probationer
. . . [e]ngaged in new criminal conduct other than a minor traffic violation or
simple possession of a controlled substance . . . the court or judge may revoke the
suspension of imposition or execution of sentence . . . and order that sentence be
executed.
As set forth above, the evidence overwhelmingly established, by a preponderance of the
evidence, that petitioner committed the offense of being a prohibited person in possession of a
firearm, which constitutes new criminal conduct beyond that excluded under the probation
revocation statute. For these reasons, we find no error in the circuit court’s revocation of
petitioner’s probation and imposition of the original sentence.
Finally, we find no merit to petitioner’s argument that his original sentence was illegal
because the circuit court enhanced his original sentence under West Virginia Code § 60A-4-
401(a)(i) of one to fifteen years for possession with intent to deliver a controlled substance to a
3
Pursuant to West Virginia Code § 61-7-7(a)(1), “[e]xcept as provided in this section, no
person shall possess a firearm, as such is defined in section two of this article, who . . . [h]as
been convicted in any court of a crime punishable by imprisonment for a term exceeding one
year[.]” Petitioner does not dispute that he was previously convicted of a felony and, thus, was
prohibited from possessing a firearm at the time of the search at issue. Petitioner further does not
challenge the issue of whether the Glock pistol in question constitutes a “firearm” as that term is
defined for purposes of this statute.
4
On appeal, petitioner does not challenge the testimony that the room in which both he
and the pistol were located was his bedroom. Instead, throughout his brief, he simply alleges
generally that the pistol and other items were found in “his mother’s residence.”
4
term of incarceration of two to thirty years under West Virginia Code § 60A-4-408. In relevant
part, West Virginia Code § 60A-4-408(a) provides that “[a]ny person convicted of a second or
subsequent5 offense under this chapter may be imprisoned for a term up to twice the term
otherwise authorized . . . .” (emphasis added). On appeal, however, petitioner wholly ignores this
language. Instead, petitioner argues that West Virginia Code § 61-11-18(a), our general recidivist
statute, permits enhancement only to the extent that “the minimum term shall be twice the term
of years otherwise provided for under such sentence” when a circuit court imposes an
indeterminate sentence and the defendant has previously been convicted of a felony. We note,
however, that this language is entirely inapplicable to petitioner’s case, as the circuit court
clearly ruled that petitioner’s sentence was enhanced “pursuant to W[est] V[irginia] Code § 60A-
4-408 . . . .” For these reasons, petitioner is entitled to no relief in this regard.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Allen H. Loughry II suspended and therefore not participating.
5
Petitioner does not challenge the fact that the conviction on appeal constitutes a second
or subsequent conviction, as contemplated by this statute.
5
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