Datasets:

parameterlab
/

scaling_mia_the_pile_00_FreeLaw

Dataset card Data Studio Files Files and versions Community

Split (3)

train · 169k rows

text stringlengths 1 1.21M	meta dict
People v Rivers (2016 NY Slip Op 05393) People v Rivers 2016 NY Slip Op 05393 Decided on July 6, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on July 6, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RANDALL T. ENG, P.J. REINALDO E. RIVERA L. PRISCILLA HALL LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. 2014-00287 (Ind. No. 13-00135) [*1]The People of the State of New York, respondent, vCharles L. Rivers III, appellant. Anthony N. Iannarelli, Jr., New York, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Steven E. Goldberg of counsel), for respondent. DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Orange County (De Rosa, J.), imposed December 4, 2013, on the ground that the sentence was excessive. ORDERED that the sentence is affirmed. The defendant's purported waiver of his right to appeal was invalid (see People v Lopez, 6 NY3d 248; People v Lazier, 122 AD3d 770, 771) and, thus, does not preclude review of his excessive sentence claim. However, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). ENG, P.J., RIVERA, HALL, AUSTIN and COHEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
6 A.3d 564 (2010) COM. v. ADAMS. No. 2776 EDA 2009. Superior Court of Pennsylvania. July 16, 2010. Affirmed.	{ "pile_set_name": "FreeLaw" }
Electronically Filed Supreme Court SCPW-11-0000741 20-JAN-2012 11:56 AM NO. SCPW-11-0000741 IN THE SUPREME COURT OF THE STATE OF HAWAI'I MICHAEL J. MATSUKAWA, Petitioner, vs. STATE OF HAWAI'I 2011 REAPPORTIONMENT COMMISSION; and SCOTT NAGO, CHIEF ELECTION OFFICER, STATE OF HAWAI'I, Respondents. ORIGINAL PROCEEDING ORDER (By: Recktenwald, C.J., Nakayama, Acoba, Duffy, and McKenna, JJ.) Upon consideration of respondents 2011 Reapportionment Commission and Chief Election Officer's motion for reconsideration and/or clarification of the January 4, 2012 order and the January 6, 2012 opinion granting the petition for a writ of mandamus, the papers in support and the record, it appears that the lack of complete information about the non-permanent status and location of Hawaii's non-residents is no basis for disregarding the express mandate of the Hawai'i Constitution, article IV, section 4, that only permanent residents be counted in the population base for the purpose of reapportionment of the state legislature. It further appears that the January 6, 2012 opinion discussed and disposed of the sole issue presented in petitioner's petition as to whether the inclusion of non permanent residents in the population base for the 2011 Final Reapportionment Plan constituted an error in the Reapportionment Plan. How the Commission identifies the non-permanent resident population for apportionment under article IV, section 4 and whether the Commission must follow the procedures set forth in HRS § 25-2 in preparing and filing a new reapportionment plan were not issues in petitioner's mandamus proceeding. It finally appears that the January 6, 2012 opinion advises the Commission that apportionment under article IV, section 6 requires the Commission to "make an honest and good faith effort to construct districts as nearly of equal population as is practicable. . . . [M]athematical exactness or precision [is not a] constitutional requirement." Accordingly, IT IS HEREBY ORDERED that the motion for reconsideration and/or clarification is denied. DATED: Honolulu, Hawai'i, January 20, 2012. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Simeon R. Acoba, Jr. /s/ James E. Duffy, Jr. /s/ Sabrina S. McKenna 2	{ "pile_set_name": "FreeLaw" }
Sin the diniteh étaa Qtnurt n chheral (Manna No. 15-548C Filed: November 13, 2015 ***$*$************************** * FILED PHILLIP L. CROWDER, * * NOV 132015 Plaintiff, pro se, * * us. COURT OF v * FEDERAL CLAIMS =1: THE UNITED STATES, * =1< Defendant. * * *********************$$********* Phillip L. Crowder, Raleigh, North Carolina, pro 56. Richard P. Schroeder, United States Department of Justice, Civil Division, Washington, DC, Counsel for the Government. MEMORANDUM OPINION AND FINAL ORDER BRADEN, Judge. I. RELEVANT FACTUAL BACKGROUND.1 On December 7, 2006, Phillip L. Crowder pleaded guilty to a violation of 18 U.S.C. § 922(g),2 before the United States District Court for the Eastern District of North Carolina (“District 1 The relevant facts were derived from: Plaintiff’s May 28, 2015 Complaint (“Cornpl.”); Plaintiff 5 July 20, 2015 “Amend[ed] Order” that this court construes to be Plaintiff 8 Amended Complaint (“Am Compl.”); and the Appendix to the Government’s July 30, 2015 Cross-Motion To Dismiss (“Gov’t App. A1—A9”). The court may consider evidence outside the pleadings when jurisdictional facts are in dispute. See Mayer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999) (“Fact-ﬁnding is proper when considering a motion to dismiss Where the jurisdictional facts in the complaint . . . are challenged”). As such, consideration of the Appendix to the Govemment’s July 30, 2015 Cross-Motion To Dismiss is appropriate, because the documents contained therein provide the factual basis for whether the court has jurisdiction. 2 Section 922(g), in relevant part, provides: It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or Court”). Gov’t App. A4. On March 20, 2007, Mr. Crowder was sentenced to 72 months’ imprisonment, followed by 36 months” supervised release. Compl. at 1. On August 8, 2013, the District Court vacated Mr. Crowder’s conviction, because it was based on prior convictions that no longer qualiﬁed as predicate offenses, in light of the United States Court of Appeal for the Fourth Circuit’s decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Gov’t App. A4. On May 20, 2014, Mr. Crowder ﬁled a Complaint with the District Court, seeking to recover monetary damages for the alleged seven years that he had been “under [ﬂederal jurisdiction, . . . including supervised release” before the vacatur.3 Compl. at 1. The District Court found that Mr. Crowder’s claim was controlled by 28 U.S.C. §§ 1495 and 2513 and should have been ﬁled in the United States Court of Federal Claims with a requisite certiﬁcate of actual innocence. See Crowder v. United States, No. 5:14—CT-3l33-F, 2014 WL 7011005, at 2 (E.D.N.C. Dec. 11, 2014). The District Court therefore transferred Mr. Crowder’s Complaint t0 the docket of his criminal case as a Motion For The Issuance Of A Certiﬁcate Of Actual Innocence. Id. at 3. On February 3, 2015, the District Court denied Mr. Crowder’s Motion For The Issuance Of A Certiﬁcate Of Actual Innocence. Gov’t App. A7. The District Court held that even though Mr. Crowder’s possession of a ﬁrearm did not violate the federal law, his prior North Carolina felony convictions made his possession of a ﬁrearm a violation of North Carolina law. Gov’t App. A6. As such, the District Court held that Mr. Crowder failed to demonstrate actual innocence. Gov’t App. A6. 11. PROCEDURAL HISTORY. On May 28, 2015, Phillip L. Crowder (“Plaintiff”) ﬁled a Complaint (“Compl.”) in the United States Court of Federal Claims, seeking $350,000 for “false arrest, false indictment, unjust and wrongful conviction, [and violation] of [his] [c]onstitutional rights as a citizen,” and $3 50,000 for “injuries, surgical operations, [and] pain and suffering enlisting indeﬁnate [sic] physical paralysis, etc.” Compl. at 2. The May 28, 2015 Complaint seeks relief for “incident, altercation, mental anguish, emotional duress, slavery and servitude, defammation [sic] of character, seizure of [his] person and property, and deprivation endured during imprisonment and unconstitution[al] circumstances.” Compl. at 2. The May 28, 2015 Complaint also proposes a settlement fee of transport in interstate or foreign commerce, or possess in or affecting commerce, any ﬁrearm or ammunition; or to receive any ﬁrearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C § 922(g). 3 But see Crowder v. United States, No. 14-CT—3133—F, 2014 WL 7011005, at ="2 (E.D.N.C. Dec. 11, 2014) (“Before his conviction was vacated, [Mr. Crowder] served ﬁve years and three months in federal prison”) (internal citation and quotation marks omitted). $350,000. That same day, Plaintiff also ﬁled a Motion For Leave To Proceed In Format Pauperis that the court granted on September 10, 2015. On June 8, 2015, Plaintiff submitted a letter to the court requesting production of certain statutes for his review. The court denied Plaintiff‘s request on June 10, 2015, because the letter was not a proper motion under Rule 7(b) of the Rules of the United States Court of Federal Claims (“RCFC”).4 On July 20, 2015, Plaintiff ﬁled an “Amend[ed] Order” that this court construes to be an Amended Complaint. The Amended Complaint increased Plaintiff’s proposed settlement fee to $400,000, and explained that the May 28, 2015 Complaint should be construed as a claim for unjust conviction and wrongful imprisonment, not as a commercial claim under 28 U.S.C. § 1491(b). Additionally, a document entitled “Order,” attached to the July 20, 2015 Amended Complaint, appears to subpoena the Government to produce documents. That same day, Plaintiff also ﬁled a Motion For Damages For Unjust Conviction. On July 27, 2015, the Government objected to Plaintiffs subpoena. On July 30, 2015, the Government ﬁled a Response (“Gov’t Resp”) to Plaintiff‘s July 20, 2015 Motion For Damages For Unjust Conviction and ﬁled a Cross-Motion To Dismiss (“Gov’t Mot”), pursuant to RCF C 12(b)(1) and 12(b)(6). Plaintiff did not ﬁle a Response. On September 28, 2015, the court issued an Order, requiring Plaintiff to Show cause why this case should not be dismissed in light of his failure to prosecute his case under RCFC 4l(b).5 Plaintiff did not respond to the Show Cause Order. III. DISCUSSION. A. Jurisdiction. The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § l49l(a)(l). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists.” United States v. Testan, 424 US. 392, 398 (1976). 4 RCFC 7(b), in relevant part, provides, “A request for a court order must be made by motion. . . . The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.” RCFC 7(b). 5 RCFC 4l(b), in relevant part, provides, “If the plaintiff fails to prosecute or to comply with these rules or a court order, the court may dismiss on its own motion[.]” RCFC 4l(b). To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091 , 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (“The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must identify a separate source of substantive law that creates the right to money damages. . . . [T]hat source must be ‘money-mandating.’”), Speciﬁcally, a plaintiff must demonstrate that the source of substantive law upon which he relies “can fairly be interpreted as mandating compensation by the Federal Government[.]” Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter jurisdiction [is] put in question . . . . [the plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence”). B. Standard 01' Review For Pro Se Litigants. Pro se plaintiffs’ pleadings are held to a less stringent stande than those of litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that pro se complaints, “however inartfnlly pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers”). This court traditionally examines the record “to see if [a pro se] plaintiff has a cause of action somewhere displayed.” Ruderer v. United States, 188 C1. Ct. 456, 468 (1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff’ s complaint, the court “does not excuse [a complaint’s] failures.” Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995). C. Standard 01‘ Review Under RCFC 12(b)(1). A challenge to the United States Court of Federal Claims’ “general power to adjudicate in speciﬁc areas of substantive law . . . is properly raised by a [Rule] l2(b)(1) motion[.]” Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]”). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court “a court must accept as true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). D. The Government’s July 30, 2015 Cross-Motion To Dismiss. 1. The Government’s Argument. The Government argues that this court does not have jurisdiction to adjudicate the claims alleged in the May 28, 2015 Complaint. Gov’t Mot. at 1. Specifically, the Government contends that Plaintiff‘s unjust conviction and imprisonment claim should be dismissed, because Plaintiff “has failed to satisfy the requirements of section 2513, including obtaining a certiﬁcate of innocence.” Gov’t Mot. at 9. In addition, the Government urges this court to dismiss other constitutional claims, because the court has jurisdiction to “entertain only those constitutional claims that ‘require payment of money damages for the violation.” Gov’t Mot. at 10 (quoting Murray v. United States, 817 F.2d 1580, 1583 (Fed. Cir. 1987)). In addition, the Government contends that Plaintiff’s various other tort claims should be dismissed, because the court “does not possess Tucker Act jurisdiction to entertain tort claims.” Gov’t Mot. at l 1. In the alternative, the Government argues that some of Plaintiff 5 claims can be dismissed pursuant to RCFC 12(b)(6). Speciﬁcally, the Government argues that this court should dismiss the wrongful conviction and imprisonment claim due to Plaintiff’s “inability to allege the elements of section 2513.” Gov’t Mot. at 13. Likewise, the constitutional takings claim should be dismissed, because “it is clear from the complaint that any property seized by the Government was seized pursuant to the Government’s police power in connection with the criminal law matters.” Gov’t Mot. at 14. 2. Plaintiff’s Response. Plaintiff did not ﬁle a Response to the Government’s July 30, 2015 Cross-Motion To Dismiss. 3. The Court’s Resolution. “[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act[.]” Todd, 386 F.3d at 1094. In determining whether Plaintiff properly identiﬁed a separate substantive right for money damages, the court is cognizant of its obligation to construe liberally pro se plaintiffs” pleadings. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that a “pro se document is to be liberally construed”). But, the court “does not excuse [a complaint’s] failures.” Henke, 60 F.3d at 799. The May 28, 2015 Complaint alleges three claims: (1) wrongful conviction and imprisonment; (2) injury by the Government’s alleged tortious acts;" and (3) violation of Plaintiff s constitutional rights, including his right to property. For the reasons set forth below, this court ﬁnds that Plaintiff has failed to meet the burden of establishing that this court has jurisdiction over his claims. First, Plaintiff has not demonstrated that his conviction and imprisonment were unjust, so as to bring his claim within the realm of this court’s jurisdiction. Although the court has jurisdiction “to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned,” 28 U.S.C. § 1495, its ability to adjudicate this claim is limited by 28 U.S.C. § 2513(a). 6 The May 28, 2015 Complaint seeks relief for “false arrest” and “injuries, surgical operations, pain and suffering enlisting indeﬁnate [sic] physical paralysis” and “incident, alternation, mental anguish, emotional duress . . . defammation [sic] of character, seizure of [his] person . . . and deprivation during imprisonment[.]” Compl. at 2. Section 2513(a) of the Unjust Conviction Act provides: Any person suing under section 1495 of this title must [also] allege and prove that: (1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing he was found not guilty of such offense, as appears from the record or certiﬁcate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction and (2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution. 23 U.S.C. § 2513(a). In this case, neither the May 28, 2015 Complaint, the July 20, 2015 Amended Complaint nor the July 20, 2015 Motion For Default Judgment “allege[s] or prove[s]” any of the statutory requirements, i.e., that Plaintiff received a certiﬁcate of innocence or was “pardoned upon the stated ground of innocence,” and that “[h]e did not commit any of the acts charged.” 28 U.S.C. § 2513(a). This is because the convicting District Court denied Plaintiff’s Motion For The Issuance Of A Certiﬁcate Of Actual Innocence and expressly found that “[Plaintiff could not] demonstrate that he [was] truly innocent of any offense.” Gov’t App. A6. As such, the court does not have jurisdiction to adjudicate Plaintiff s unjust conviction and imprisonment claim. Second, Plaintiff’s tort claims do not fall within the purview of this court’s jurisdiction. Tort claims are expressly excluded from the provisions of the Tucker Act. See 28 U.S.C. § l491(a)(1); see also Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“The plain language of the Tucker Act excludes from the [United States] Court of Federal Claims jurisdiction claims sounding in tort”). Therefore, the court does not have jurisdiction to adjudicate claims relating to the Government’s alleged tortious acts. Finally, the court cannot adjudicate the claims regarding violations of Plaintiff‘s constitutional rights, including his right to property, because neither the May 28, 2015 Complaint nor the July 20, 2015 Amended Complaint state more than bare allegations that Plaintiffs constitutional rights were violated, i.e., Plaintiff does not identify any constitutional provisions under which the court can adjudicate his claims. Moreover, to the extent that the claim relating to seizure of Plaintiff‘s property can be construed as a violation of his Fifth Amendment right to property, Plaintiff does not assert that his property was taken for public use, rather than pursuant to the criminal laws. See A &D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1150 (Fed. Cir. 2014) (“[The Takings Clause] guarantees just compensation whenever private property is ‘taken’ for public use”); see also Acadia Tech, Inc. v. United States, 458 F.3d 1327, 1331 9 Fed. Cir. 2006) (“When property has been seized pursuant to the criminal laws[,]. . . such deprivations are not ‘takings’ for which the owner is entitled to compensation”). As such, Plaintiff’s constitutional claims are frivolous and cannot be adjudicated by this court. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d 210 (1998) (“Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper . . . when the claim is so insubstantial [and] implausible. . . .”) (internal citations and quotation marks omitted); see also Moden v. United States, 404 F.3d 1335, 134041 (Fed. Cir. 2005) (holding that dismissal for lack of subject-matter jurisdiction is permissible where a claimant asserts a frivolous claim). IV. CONCLUSION. For the reasons discussed herein, the Government’s July 30, 2015 Motion to Dismiss is granted. See RCFC 12(b)(1), 12(b)(6). The Clerk is directed to dismiss Plaintiff’s May 28, 2015 Complaint and July 20, 2015 Amended Complaint. As such, all remaining pending motions in this case are denied as moot. IT IS SO ORDERED. SUSA G. BRADEN Judge	{ "pile_set_name": "FreeLaw" }
730 F.Supp. 1061 (1990) Karen J. YARBROUGH, Individually, and as the Surviving Heir of Kathryn J. Yarbrough, Deceased, Plaintiff, v. STATE FARM INSURANCE COMPANY, Defendant. No. Civ 89-0050 JC. United States District Court, D. New Mexico. January 8, 1990. 1062 Wesley Reid Bobbitt, Wesley Reid Bobbitt, P.C., Albuquerque, N.M., for plaintiff. Alice Tomlinson Lorenz, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, N.M., for defendant. MEMORANDUM OPINION CONWAY, District Judge. THIS MATTER is before the Court on the defendant's Motion for Summary Judgment, filed June 30, 1989. Having conducted a hearing on the motion on December 15, 1989, and having reviewed the memoranda of the parties and the applicable law, the Court has found that the motion is not well-taken and entered its Order so stating on Friday, January 5, 1990. This Memorandum Opinion sets forth the Court's reasoning. The issue presented is whether the holder of an uninsured/underinsured motorist insurance policy breaches the terms of the policy, thereby invalidating the underlying insurance contract, by settling her claims with co-tortfeasors other than the uninsured motorist tortfeasor. The facts of this case are unusual. On August 10, 1985, Kathryn Yarbrough, the plaintiff's daughter, was a passenger on a moped motorcycle driven by Mr. Mark Maris. Yarbrough and Maris entered the intersection of West Campbell Road and Nantucket Drive in Richardson, Texas as the traffic signal turned yellow. A car driven by Mr. Osei-Kusi Appiah entered the intersection at approximately the same time and collided with the moped. Kathryn Yarbrough was fatally injured. Karen Yarbrough filed suit against Mr. Appiah in 1986. That lawsuit was settled for "policy limits" of $15,025.00 in August of 1987. As part of that settlement, Karen Yarbrough executed a full release of Mr. Appiah and the National County Mutual Fire Insurance Company. Karen Yarbrough also sued Peugeot Motors of America and Cycles Peugeot U.S.A., Inc., the manufacturers of the moped. That lawsuit was settled and a Full, Final and Complete Release was executed on May 1, 1989. Karen Yarbrough and Mrs. Poole, her mother, also made a claim for uninsured motorist benefits pursuant to a policy issued to Mrs. Poole and her aunt, Mrs. Freburg, by the United States Fidelity and Guaranty Company ("USF & G"). That claim was settled for "policy limits" as well on September 28, 1987. The current lawsuit was initiated on January 11, 1989 by Karen Yarbrough in an effort to recover benefits allegedly due her pursuant to three separate uninsured/underinsured motorist policies issued by the defendant State Farm Insurance Company. In its defense, State Farm urges that the plaintiff breached the terms of her policies by failing to notify them of the accident within a reasonable period of time, (State Farm argues that it did not receive notice until December 1987), and by negotiating settlements with other tortfeasors involved in the accident. The language at issue in the policies provided by State Farm reads as follows: under "Reporting a Claim Insured's Duties": "1. Notice to us of an Accident or Loss. The insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible. The notice must give us: (a) your name; and (b) the names and addresses of all persons involved; and (c) The hour, date, place and facts of the accident or loss; and (d) The names and addresses of witnesses ..." All three of the insurance policies identified in Plaintiff's Complaint and upon which she bases her claim provide under "Reporting a claim Insured's Duties": 1063 4. Other Duties Under Medical Payments, Uninsured and Unknown Motorists, Death, Dismemberment and Loss of Sight, Total Disability and Loss of Earnings Coverages. The person making the claim also shall: (a) Give us all the details about the death, injury, treatment and other information we need to determine the amount payable; . . . . . (c) under the uninsured and unknown motorist coverage: . . . . . (3) send us at once a copy of all suit papers if the person sues the party liable for the accident or damages; . . . . . (5) after notice of claim, if we ask: (a) Do what is needed to preserve his or her right to recover damages from any person or organization claimed to be responsible for the bodily injury or property damage. All three of the insurance policies identified in Plaintiff's complaint and upon which she bases her claim provide under "Reporting a Claim Insured's Duties": 5. Insured's Duty to Cooperate with us. The insured shall cooperate with us ..." All three of the insurance policies identified in Plaintiff's Complaint and upon which she bases her claim provide under "SECTION IIIUNINSURED AND UNKNOWN MOTORIST COVERAGE U": "When Coverage U Does Not Apply THERE IS NO COVERAGE: 1. FOR ANY INSURED WHO, WITHOUT OUR WRITTEN CONSENT, SETTLES WITH ANY PERSON OR ORGANIZATION WHO MAY BE LIABLE FOR THE BODILY INJURY. All three of the insurance policies identified in Plaintiff's Complaint and upon which she bases her claim provide under "CONDITIONS": "3. Our Right to Recover our Payments. (b) Under uninsured and unknown motorists and loss of earnings coverages: (1) We are subrogated to the extent of our payments to the proceeds of any settlement the injured person recovers from any party liable for the bodily injury ..." PART I In New Mexico, insurance policies are interpreted by resort to basic principles of contract law. March v. Mountain States Mutual Casualty Co., 101 N.M. 689, 687 P.2d 1040 (1984). Exclusionary policy language will be enforced so long as its meaning is clear and it does not conflict with public policy as embodied by express statutory language or by legislative intent. Id. at 1042; Chavez v. State Farm Mutual Automobile Insurance Co., 87 N.M. 327, 533 P.2d 100 (1975). In March, the New Mexico Supreme Court confirmed the validity of exclusionary language and consent-to-settle provisions in uninsured/underinsured motorists' policies which require that notice of an accident be given to the insuror, and that the policy holder make no settlement with the alleged tortfeasor without the consent of the insuror. The issue that the Court addressed in March was whether the plaintiff's release and settlement with the alleged tortfeasor's insurance company without the consent or knowledge of his own insurance provider, relieved the insuror of its obligation to the insured. 101 N.M. at 690, 687 P.2d 1040. The Court held that the release and settlement by the plaintiff violated the exclusion provisions of the policy because it destroyed the subrogation rights of the insuror, rights which the consent-to-settle clause in the policy was specifically designed to protect. Applying the law of the state of New Mexico, it is therefore clear that any unconsented to release of an alleged tortfeasor by a putative plaintiff operates to void the provisions of any uninsured/underinsured motorist policy as to that tortfeasor. However, this is not the case now before the Court. Here, Ms. Yarbrough's attorney has represented to the Court that she only 1064 seeks recompense from State Farm for that portion of liability attributable to the actions of Mark Maris. No settlement or release of Maris or his insurance company appears in the record. Nor does it appear that such a settlement has ever been negotiated. As a result, this Court does not find that State Farm's subrogation rights as to Maris have been jeopardized in the least. The fact that settlement was reached with other alleged tortfeasors does not affect the extent of Maris' liability. Furthermore, to construe the language of the policies at issue in a manner that would result in a reading that settlement with any tortfeasor in a given accident voids policy coverage for all tortfeasors would violate the public policy of protecting the injured, non-liable motorist from economic harm. For a variety of reasons, courts have disallowed application of exclusionary clauses by insurors when applied to joint tortfeasors, against whom no liability is asserted by putative plaintiffs. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Humphrey, 54 Ala.App. 343, 308 So.2d 255 (1975); Dairyland Insurance Co. v. Lopez, 22 Ariz.App. 309, 526 P.2d 1264 (1974); Ray v. DeMaggio, 313 So.2d 251 (La.Ct.App.1975). In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Humphrey, supra, an accident involved three drivers and three automobiles. Plaintiff's deceased was a passenger in one of the uninsured autos, another of the automobiles was uninsured, and the last carried insurance. Plaintiff made settlement with the insured driver. Referring to the exclusionary provision of that policy, as well as a trust agreement regarding subrogation, the court said: The trust agreement would condition the uninsured motorist coverage upon the surrender by the insured of any right to settle with or to recover from an insured tortfeasor.... We hold that the trust ageement or subrogation clause, when applied to settlement with or recovery from tortfeasors other than the uninsured motorist is invalid and contrary to the intent of the uninsured motorist statute. [308 So.2d at 257, 258.] Alabama's uninsured motorist statute, like New Mexico's, was silent on the subject of subrogation. In Dairyland Insurance Co. v. Lopez, supra, exclusionary language indistinguishable from that in the case at bar was considered. There two tortfeasors were concerned, one insured, and one not. Settlement was made with the insured driver. Observing that uninsured motorist coverage is intended to substitute for liability insurance which is normally available to injured persons from tortfeasors, the court found weighty public policies against such exclusions of coverage. Significantly, Arizona, like New Mexico, does uphold exclusionary provisions when applied to releases of what are usually referred to as "uninsured motorists," by whom it is meant tortfeasors whose liability underlie claims against uninsured motorist carriers. Thus, the Lopez court distinguished State Farm Fire and Casualty Co. v. Rossini, 107 Ariz. 561, 490 P.2d 567 (1971), saying: Rossini is distinguishable from the case sub judice. In Rossini the release was given to the uninsured motorist and not, as in the instant case, to an insured joint tortfeasor. Lopez, supra, [526 P.2d at 1265.] In Ray v. DeMaggio, supra, a series of chain reaction rear-end collisions injured the plaintiff. The plaintiff settled with the insured motorists. Considering language essentially identical to that of the case at bar, the court reviewed its leading authority and found it to be the effect that such: ... clause[s] served no valid purpose because failure to obtain [the UM carrier's] consent prior to settling with insurers of cotort-feasors in no way prejudices the uninsured motorist insurer's rights. [DeMaggio, supra, 313 So.2d at 253.] The reason for this analysis by the DeMaggio court is significant: Because such settlement does not increase the amount for which it can be liable or alter its subrogation rights in any way, the uninsured motorist carrier 1065 has no legitimate reason to reserve to itself a veto power over settlements with cotort-feasors as a requisite to urging a claim under uninsured motorist coverage. [Id.] In Wescott v. Allstate Insurance, 397 A.2d 156 (Me.1979), plaintiff was a passenger in an insured automobile, with whom she settled, which collided with an uninsured one, concerning which she brought her uninsured motorist claim. Furthermore, the Wescott court applied doctrine well known in New Mexico that uninsured motorist policy provisions repugnant to the statute are void and unenforceable. See, e.g., American Mutual Insurance Co. v. Romero, 428 F.2d 870 (10th Cir.); Schmick v. State Farm Mutual Automobile Insurance Co., 103 N.M. 216, 704 P.2d 1092 (1985); Lopez v. Foundation Reserve Insurance Co., 98 N.M. 166, 646 P.2d 1230 (1982). In keeping with the other cases here cited on point, the Wescott court found: Insofar as the clause restricts the insured's right to compromise and settle his claim against financially responsible motorists who might be liable to him, it is contrary to the purpose of the statute, it is against public policy and unenforceable. To permit third party settlements to work a forfeiture of the uninsured motorist protection would destroy the very purpose which the Legislature sought to achieve, i.e. financial responsibility up to policy limits to the extent of the satisfaction of such damage as the insured is legally entitled to recovery from an uninsured motorist. [Citations omitted, emphasis added, Wescott, supra, 397 A.2d at 167.] Notably, the Supreme Court of Maine held that: ... the no-consent-to-settlement exclusion clause contained in the Allstate-Wescott policy is no defense where the insured settled with a person other than the uninsured tortfeasor. [Wescott, supra, 397 A.2d at 168, emphasis added]. Equally important, the Wescott court balanced the issue of the extent of the uninsured motorist carrier's subrogation rights and still opined in favor of the plaintiff. [We concede that the insurer's purpose in having in the policy the no-consent-to-settlement exclusion clause and the provision for reducing the insurer's obligation by all sums paid on account of the bodily injury sustained in the accident from other sources is the protection of the insurer's potential right to subrogation against persons who may be legally liable therefor. [Id.]] PART II This Court does not find that the plaintiff's failure to notify State Farm of the underlying accident sooner than she did results in any prejudice to the defendant. Lack of notice to a policy provider does not void coverage if the policy provider is not prejudiced. Foundation Reserve Insurance Co. v. Esquibel, 94 N.M. 132, 607 P.2d 1150 (1980). A number of courts have recently held that the burden of proof to establish prejudice is on the insurance provider. See, e.g., Ouellette v. Maine Bonding & Casualty Co., 495 A.2d 1232 (Me.1985); Thompson v. Grange Insurance Association, 34 Wash.App. 151, 660 P.2d 307 (1983). Here, State Farm claims that it has been denied the ability to fully investigate the accident, examine the vehicles involved, and/or interview witnesses while their memories are fresh. (Memo in Support of Summary Judgment at p. 13). The Court concedes that this case does not come to the defendants in an ideal posture but would point out that a more than adequate defense might easily be provided through the use of accident reports, prior investigations, interviews and statements already taken in the progressive settlements which preceded the filing of this cause. In addition, the defendants have not indicated to the Court that any requested material or information is unavailable to them. CONCLUSION Based on the foregoing, summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is inappropriate on the basis that the defendant is not entitled *1066 to judgment as a matter of law. The defendant's motion is properly denied.	{ "pile_set_name": "FreeLaw" }
555 So.2d 437 (1990) Miguel Angel FERNANDEZ, Appellant, v. The STATE of Florida, Appellee. No. 89-745. District Court of Appeal of Florida, Third District. January 16, 1990. 438 Peter Raben, Coconut Grove, for appellant. Robert A. Butterworth, Atty. Gen., and Jorge Espinosa, Asst. Atty. Gen., for appellee. Before HUBBART, NESBITT and JORGENSON, JJ. PER CURIAM. The defendant, Miguel Angel Fernandez, appeals from a final judgment of conviction and sentence of life imprisonment for burglary of a structure with an assault or battery with a firearm, robbery with a firearm, and kidnapping with a firearm. We affirm the judgment of conviction. However, because the trial court erred in applying the sentencing guidelines, we remand for resentencing within the guidelines range. First, we hold that the trial court did not err in excluding as hearsay two out-of-court statements relating to defendant's alibi defense. No offer of proof was made to indicate what the excluded evidence would have revealed. The Florida Evidence Code, Section 90.104(1)(b), Florida Statutes, provides: (1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and: * * * * * (b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked. "It is axiomatic that failure to proffer what the excluded evidence would have revealed precludes appellate consideration of the alleged error." A.McD. v. State, 422 So.2d 336, 337 Fla. 3d DCA 1982) (citations omitted). Although we assume that the testimony would have been favorable to the defendant, we cannot speculate as to what that testimony would have been. See A.McD., 422 So.2d at 336. ("The bare question, `Have you ever been subject to any disciplinary investigations?' provides no insight as to its relevancy."); Woodson *439 v. State, 483 So.2d 858, 859 (Fla. 5th DCA 1986) ("The witness' response was not `apparent' from the context of the question.") The absence of proffer in the present case precludes our review of the alleged error. Because Fernandez does not contend that the answers sought from Officer Vermillion were also inherent in the questions asked, the absence of proffer precludes our review of that alleged error as well. Second, no error occurred when John Kastrenakas, the former prosecutor on the case, was called by the state as a rebuttal witness to impeach the testimony of a defense witness in this case. In State v. Clausell, 474 So.2d 1189, 1191 (Fla. 1985), the Florida supreme court held that "there is no inherent right to disqualification when a member of the state attorney's office is called as a witness in a case[.]" Only if actual prejudice can be shown should a motion for disqualification be granted. Id.; Meggs v. McClure, 538 So.2d 518 (Fla. 1st DCA 1989) (even where the state attorney may be involved at some point in the prosecution, he may not be disqualified absent a showing of actual prejudice). Nothing in the record before us shows that Fernandez suffered actual prejudice sufficient to warrant disqualification of this witness. Moreover, Fernandez failed to object to any of Mr. Kastrenakas's answers or to request a curative instruction. Where no prejudice occurred, as here, any alleged error was not preserved for appeal. Third, we hold that the evidence was sufficient to support the convictions for kidnapping. Contrary to defendant's assertion, those convictions were not incident to and indistinguishable from the contemporaneous crime of robbery. See Sanborn v. State, 513 So.2d 1380 (Fla. 3d DCA 1987) (confinement was not "slight, inconsequential and merely incidental," where the victims were tied up and injured on their bed); Lamarca v. State, 515 So.2d 309 (Fla. 3d DCA 1987) (movement of victim from sink area to last stall in women's restroom was not incidental to sexual battery, was not necessary to battery, and reduced risk of detention, and thus was sufficient movement to constitute kidnapping); Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982) (defendant's act of tying victims to facilitate escape following robbery of restaurant and lessen the risk of detection constituted kidnapping). Finally, we hold that the trial court erred in sentencing the defendant to life imprisonment. On the guidelines scoresheet, the defendant was assessed 511 points under Category Nine (All Other Felony Offenses). That cumulative total included points for victim injury: eight points were added for each of the two victims. However, only one of the victims testified that she had been injured. The additional eight points for victim injury raised the defendant's total guidelines score one level from 503 points to 511 points. If properly scored, Fernandez should have been sentenced to 27 to 40 years rather than life. Accordingly, while the judgment of conviction appealed from is affirmed, the cause is remanded for resentencing within the guidelines. Judgment of conviction affirmed; cause remanded for resentencing.	{ "pile_set_name": "FreeLaw" }
539 U.S. 126 (2003) OVERTON, DIRECTOR, MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL. v. BAZZETTA ET AL. No. 02-94. Supreme Court of United States. Argued March 26, 2003. Decided June 16, 2003. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. 127 KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 137. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p. 138. Thomas L. Casey, Solicitor General of Michigan, argued the cause for petitioners. With him on the briefs were Mike Cox, Attorney General, and Leo H. Friedman, Mark Matus, and Lisa C. Ward, Assistant Attorneys General. 128 Jeffrey A. Lamken argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, and Robert M. Loeb. Deborah LaBelle argued the cause for respondents. With her on the brief were Barbara R. Levine and Patricia A. Streeter.[] JUSTICE KENNEDY delivered the opinion of the Court. The State of Michigan, by regulation, places certain restrictions on visits with prison inmates. The question before the Court is whether the regulations violate the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments as applicable to the States through the Fourteenth Amendment. 129 I The population of Michigan's prisons increased in the early 1990's. More inmates brought more visitors, straining the resources available for prison supervision and control. In particular, prison officials found it more difficult to maintain order during visitation and to prevent smuggling or trafficking in drugs. Special problems were encountered with the increase in visits by children, who are at risk of seeing or hearing harmful conduct during visits and must be supervised with special care in prison visitation facilities. The incidence of substance abuse in the State's prisons also increased in this period. Drug and alcohol abuse by prisoners is unlawful and a direct threat to legitimate objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons. In response to these concerns, the Michigan Department of Corrections (MDOC or Department) revised its prison visitation policies in 1995, promulgating the regulations here at issue. One aspect of the Department's approach was to limit the visitors a prisoner is eligible to receive, in order to decrease the total number of visitors. Under MDOC's regulations, an inmate may receive visits only from individuals placed on an approved visitor list, except that qualified members of the clergy and attorneys on official business may visit without being listed. Mich. Admin. Code Rule 791.6609(2) (1999); Director's Office Mem. 1995-59 (effective date Aug. 25, 1995). The list may include an unlimited number of members of the prisoner's immediate family and 10 other individuals the prisoner designates, subject to some restrictions. Rule 791.6609(2). Minors under the age of 18 may not be placed on the list unless they are the children, stepchildren, grandchildren, or siblings of the inmate. Rule 791.6609(2)(b); Mich. Comp. Laws Ann. § 791.268a (West Supp. 2003). If an inmate's parental rights 130 have been terminated, the child may not be a visitor. Rule 791.6609(6)(a) (1999). A child authorized to visit must be accompanied by an adult who is an immediate family member of the child or of the inmate or who is the legal guardian of the child. Rule 791.6609(5); Mich. Dept. of Corrections Procedure OP-SLF/STF-05.03.140, p. 9 (effective date Sept. 15, 1999). An inmate may not place a former prisoner on the visitor list unless the former prisoner is a member of the inmate's immediate family and the warden has given prior approval. Rule 791.6609(7). The Department's revised policy also sought to control the widespread use of drugs and alcohol among prisoners. Prisoners who commit multiple substance-abuse violations are not permitted to receive any visitors except attorneys and members of the clergy. Rule 791.6609(11)(d). An inmate subject to this restriction may apply for reinstatement of visitation privileges after two years. Rule 791.6609(12). Reinstatement is within the warden's discretion. Ibid. Respondents are prisoners, their friends, and their family members. They brought this action under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging that the restrictions upon visitation violate the First, Eighth, and Fourteenth Amendments. It was certified as a class action under Federal Rule of Civil Procedure 23. Inmates who are classified as the highest security risks, as determined by the MDOC, are limited to noncontact visitation. This case does not involve a challenge to the method for making that determination. By contrast to contact visitation, during which inmates are allowed limited physical contact with their visitors in a large visitation room, inmates restricted to noncontact visits must communicate with their visitors through a glass panel, the inmate and the visitor being on opposite sides of a booth. In some facilities the booths are located in or at one side of the same room used for contact visits. The case before us concerns the regulations as they pertain to noncontact visits. 131 The United States District Court for the Eastern District of Michigan agreed with the prisoners that the regulations pertaining to noncontact visits were invalid. Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (2001). The Sixth Circuit affirmed, 286 F. 3d 311 (2002), and we granted certiorari, 537 U. S. 1043 (2002). II The Court of Appeals agreed with the District Court that the restrictions on noncontact visits are invalid. This was error. We first consider the contention, accepted by the Court of Appeals, that the regulations infringe a constitutional right of association. We have said that the Constitution protects "certain kinds of highly personal relationships," Roberts v. United States Jaycees, 468 U. S. 609, 618, 619-620 (1984). And outside the prison context, there is some discussion in our cases of a right to maintain certain familial relationships, including association among members of an immediate family and association between grandchildren and grandparents. See Moore v. East Cleveland, 431 U. S. 494 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390 (1923). This is not an appropriate case for further elaboration of those matters. The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U. S. 119, 125 (1977); Shaw v. Murphy, 532 U. S. 223, 229 (2001). And, as our cases have established, freedom of association is among the rights least compatible with incarceration. See Jones, supra, at 125-126; Hewitt v. Helms, 459 U. S. 460 (1983). Some curtailment of that freedom must be expected in the prison context. We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners. We 132 need not attempt to explore or define the asserted right of association at any length or determine the extent to which it survives incarceration because the challenged regulations bear a rational relation to legitimate penological interests. This suffices to sustain the regulation in question. See Turner v. Safley, 482 U. S. 78, 89 (1987). We have taken a similar approach in previous cases, such as Pell v. Procunier, 417 U. S. 817, 822 (1974), which we cited with approval in Turner. In Pell, we found it unnecessary to decide whether an asserted First Amendment right survived incarceration. Prison administrators had reasonably exercised their judgment as to the appropriate means of furthering penological goals, and that was the controlling rationale for our decision. We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. See, e. g., Pell, supra, at 826-827; Helms, supra, at 467; Thornburgh v. Abbott, 490 U. S. 401, 408 (1989); Jones, supra, at 126, 128; Turner, supra, at 85, 89; Block v. Rutherford, 468 U. S. 576, 588 (1984); Bell v. Wolfish, 441 U. S. 520, 562 (1979). The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it. See Jones, supra, at 128; O'Lone v. Estate of Shabazz, 482 U. S. 342, 350 (1987); Shaw, supra, at 232. Respondents have failed to do so here. In Turner we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a "`valid, rational connection'" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U. S., at 89-91. 133 Turning to the restrictions on visitation by children, we conclude that the regulations bear a rational relation to MDOC's valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury. The regulations promote internal security, perhaps the most legitimate of penological goals, see, e. g., Pell, supra, at 823, by reducing the total number of visitors and by limiting the disruption caused by children in particular. Protecting children from harm is also a legitimate goal, see, e. g., Block, supra, at 586-587. The logical connection between this interest and the regulations is demonstrated by trial testimony that reducing the number of children allows guards to supervise them better to ensure their safety and to minimize the disruptions they cause within the visiting areas. As for the regulation requiring children to be accompanied by a family member or legal guardian, it is reasonable to ensure that the visiting child is accompanied and supervised by those adults charged with protecting the child's best interests. Respondents argue that excluding minor nieces and nephews and children as to whom parental rights have been terminated bears no rational relationship to these penological interests. We reject this contention, and in all events it would not suffice to invalidate the regulations as to all non-contact visits. To reduce the number of child visitors, a line must be drawn, and the categories set out by these regulations are reasonable. Visits are allowed between an inmate and those children closest to him or herchildren, grandchildren, and siblings. The prohibition on visitation by children as to whom the inmate no longer has parental rights is simply a recognition by prison administrators of a status determination made in other official proceedings. MDOC's regulation prohibiting visitation by former inmates bears a self-evident connection to the State's interest in maintaining prison security and preventing future crimes. 134 We have recognized that "communication with other felons is a potential spur to criminal behavior." Turner, supra, at 91-92. Finally, the restriction on visitation for inmates with two substance-abuse violations, a bar which may be removed after two years, serves the legitimate goal of deterring the use of drugs and alcohol within the prisons. Drug smuggling and drug use in prison are intractable problems. See, e. g., Bell, supra, at 559; Block, supra, at 586-587; Hudson v. Palmer, 468 U. S. 517, 527 (1984). Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose. In this regard we note that numerous other States have implemented similar restrictions on visitation privileges to control and deter substance-abuse violations. See Brief for State of Colorado et al. as Amici Curiae 4-9. Respondents argue that the regulation bears no rational connection to preventing substance abuse because it has been invoked in certain instances where the infractions were, in respondents' view, minor. Even if we were inclined, though, to substitute our judgment for the conclusions of prison officials concerning the infractions reached by the regulations, the individual cases respondents cite are not sufficient to strike down the regulations as to all noncontact visits. Respondents also contest the 2-year bar and note that reinstatement of visitation is not automatic even at the end of two years. We agree the restriction is severe. And if faced with evidence that MDOC's regulation is treated as a de facto permanent ban on all visitation for certain inmates, we might reach a different conclusion in a challenge to a particular application of the regulation. Those issues are not presented in this case, which challenges the validity of the restriction on noncontact visits in all instances. 135 Having determined that each of the challenged regulations bears a rational relationship to a legitimate penological interest, we consider whether inmates have alternative means of exercising the constitutional right they seek to assert. Turner, 482 U. S., at 90. Were it shown that no alternative means of communication existed, though it would not be conclusive, it would be some evidence that the regulations were unreasonable. That showing, however, cannot be made. Respondents here do have alternative means of associating with those prohibited from visiting. As was the case in Pell, inmates can communicate with those who may not visit by sending messages through those who are allowed to visit. 417 U. S., at 825. Although this option is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone. Respondents protest that letter writing is inadequate for illiterate inmates and for communications with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient. Alternatives to visitation need not be ideal, however; they need only be available. Here, the alternatives are of sufficient utility that they give some support to the regulations, particularly in a context where visitation is limited, not completely withdrawn. Another relevant consideration is the impact that accommodation of the asserted associational right would have on guards, other inmates, the allocation of prison resources, and the safety of visitors. See Turner, supra, at 90; Hudson, supra, at 526 (visitor safety). Accommodating respondents' demands would cause a significant reallocation of the prison system's financial resources and would impair the ability of corrections officers to protect all who are inside a prison's walls. When such consequences are present, we are "particularly deferential" to prison administrators' regulatory judgments. Turner, supra, at 90. 136 Finally, we consider whether the presence of ready alternatives undermines the reasonableness of the regulations. Turner does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid penological goal. 482 U. S., at 90-91. Respondents have not suggested alternatives meeting this high standard for any of the regulations at issue. We disagree with respondents' suggestion that allowing visitation by nieces and nephews or children for whom parental rights have been terminated is an obvious alternative. Increasing the number of child visitors in that way surely would have more than a negligible effect on the goals served by the regulation. As to the limitation on visitation by former inmates, respondents argue the restriction could be time limited, but we defer to MDOC's judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions. Respondents suggest the duration of the restriction for inmates with substance-abuse violations could be shortened or that it could be applied only for the most serious violations, but these alternatives do not go so far toward accommodating the asserted right with so little cost to penological goals that they meet Turner's high standard. These considerations cannot justify the decision of the Court of Appeals to invalidate the regulation as to all noncontact visits. III Respondents also claim that the restriction on visitation for inmates with two substance-abuse violations is a cruel and unusual condition of confinement in violation of the Eighth Amendment. The restriction undoubtedly makes the prisoner's confinement more difficult to bear. But it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment. Much of 137 what we have said already about the withdrawal of privileges that incarceration is expected to bring applies here as well. Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement. Cf. Sandin v. Conner, 515 U. S. 472, 485 (1995). Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur. See, e. g., Estelle v. Gamble, 429 U. S. 97 (1976); Rhodes v. Chapman, 452 U.S. 337 (1981). If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations. An individual claim based on indefinite withdrawal of visitation or denial of procedural safeguards, however, would not support the ruling of the Court of Appeals that the entire regulation is invalid. * * * The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, concurring. Our decision today is faithful to the principle that "federal courts must take cognizance of the valid constitutional claims of prison inmates." Turner v. Safley, 482 U. S. 78, 84 (1987). As we explained in Turner: "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution. Hence, for example, prisoners retain the constitutional right to petition the government for the redress of grievances, Johnson v. Avery, 393 U. S. 483 (1969); they 138 are protected against invidious racial discrimination by the Equal Protection Clause of the Fourteenth Amendment, Lee v. Washington, 390 U. S. 333 (1968); and they enjoy the protections of due process, Wolff v. McDonnell, 418 U. S. 539 (1974); Haines v. Kerner, 404 U. S. 519 (1972). Because prisoners retain these rights, `[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.' Procunier v. Martinez, 416 U. S., at 405-406." Ibid. It was in the groundbreaking decision in Morrissey v. Brewer, 408 U. S. 471 (1972), in which we held that parole revocation is a deprivation of liberty within the meaning of the Due Process Clause of the Fourteenth Amendment, that the Court rejected the view once held by some state courts that a prison inmate is a mere slave. See United States ex rel. Miller v. Twomey, 479 F. 2d 701, 711-713 (CA7 1973). Under that rejected view, the Eighth Amendment's proscription of cruel and unusual punishment would have marked the outer limit of the prisoner's constitutional rights. It is important to emphasize that nothing in the Court's opinion today signals a resurrection of any such approach in cases of this kind. See ante, at 131. To the contrary, it remains true that the "restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual." 479 F. 2d, at 712. JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment. I concur in the judgment of the Court because I would sustain the challenged regulations on different grounds from those offered by the majority. 139 I A The Court is asked to consider "[w]hether prisoners have a right to non-contact prison visitation protected by the First and Fourteenth Amendments." Brief for Petitioners i. In my view, the question presented, as formulated in the order granting certiorari, draws attention to the wrong inquiry. Rather than asking in the abstract whether a certain right "survives" incarceration, ante, at 132, the Court should ask whether a particular prisoner's lawful sentence took away a right enjoyed by free persons. The Court's precedents on the rights of prisoners rest on the unstated (and erroneous) presumption that the Constitution contains an implicit definition of incarceration. This is manifestly not the case, and, in my view, States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivationsprovided only that those deprivations are consistent with the Eighth Amendment. Under this view, the Court's precedents on prisoner "rights" bear some reexamination. When faced with a prisoner asserting a deprivation of constitutional rights in this context, the Court has asked first whether the right survives incarceration, Pell v. Procunier, 417 U. S. 817, 822 (1974), and then whether a prison restriction on that right "bear[s] a rational relation to legitimate penological interests." Ante, at 132 (citing Turner v. Safley, 482 U. S. 78, 89 (1987)). Pell and its progeny do not purport to impose a substantive limitation on the power of a State to sentence a person convicted of a criminal offense to a deprivation of the right at issue. For example, in Turner, the Court struck down a prison regulation that prohibited inmates from marrying absent permission from the superintendent. 482 U. S., at 89, 94-99. Turner cannot be properly understood, however, as holding that a State may not sentence those convicted to both imprisonment 140 and the denial of a constitutional right to marry.[] The only provision of the Constitution that speaks to the scope of criminal punishment is the Cruel and Unusual Punishments Clause of the Eighth Amendment, and Turner cited neither that Clause nor the Court's precedents interpreting it. Prisoners challenging their sentences must, absent an unconstitutional procedural defect, rely solely on the Eighth Amendment. The proper inquiry, therefore, is whether a sentence validly deprives the prisoner of a constitutional right enjoyed by ordinary, law-abiding persons. Whether a sentence encompasses the extinction of a constitutional right enjoyed by free persons turns on state law, for it is a State's prerogative to determine how it will punish violations of its law, and this Court awards great deference to such determinations. See, e. g., Payne v. Tennessee, 501 U. S. 808, 824 (1991) ("Under our constitutional system, the primary responsibility for defining crimes against state law [and] fixing punishments for the commission of these crimes . . . rests with the States"); see also Ewing v. California, 538 U. S. 11, 24 (2003) (opinion of O'CONNOR, J.) ("[O]ur tradition of deferring to state legislatures in making and implementing such important [sentencing] policy decisions is longstanding"). Turner is therefore best thought of as implicitly deciding that the marriage restriction was not within the scope of the State's lawfully imposed sentence and that, therefore, the regulation worked a deprivation of a constitutional right without sufficient process. Yet, when the resolution of a federal constitutional issue may be rendered irrelevant by 141 the determination of a predicate state-law question, federal courts should ordinarily abstain from passing on the federal issue. Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941). Here, if the prisoners' lawful sentences encompassed the extinction of any right to intimate association as a matter of state law, all that would remain would be respondents' (meritless, see Part II, infra) Eighth Amendment claim. Petitioners have not asked this Court to abstain under Pullman, and the issue of Pullman abstention was not considered below. As a result, petitioners have, in this case, submitted to the sort of guesswork about the meaning of prison sentences that is the hallmark of the Turner inquiry. Here, furthermore, Pullman abstention seems unnecessary because respondents make no effort to show that the sentences imposed on them did not extinguish the right they now seek to enforce. And for good reason. It is highly doubtful that, while sentencing each respondent to imprisonment, the State of Michigan intended to permit him to have any right of access to visitors. Such access seems entirely inconsistent with Michigan's goal of segregating a criminal from society, see Morrissey v. Brewer, 408 U. S. 471, 482 (1972) (incarceration by design intrudes on the freedom "to be with family and friends and to form the other enduring attachments of normal life"); cf. Olim v. Wakinekona, 461 U. S. 238 (1983) (upholding incarceration several hours of flight away from home). B Though the question whether the State of Michigan intended to confer upon respondents a right to receive visitors is ultimately for the State itself to answer, it must nonetheless be confronted in this case. The Court's Turner analysis strongly suggests that the asserted rights were extinguished by the State of Michigan in incarcerating respondents. Restrictions that are rationally connected to the running of a prison, that are designed to avoid adverse impacts on guards, 142 inmates, or prison resources, that cannot be replaced by "ready alternatives," and that leave inmates with alternative means of accomplishing what the restrictions prohibit, are presumptively included within a sentence of imprisonment. Moreover, the history of incarceration as punishment supports the view that the sentences imposed on respondents terminated any rights of intimate association. From the time prisons began to be used as places where criminals served out their sentences, they were administered much in the way Michigan administers them today. Incarceration in the 18th century in both England and the Colonies was virtually nonexistent as a form of punishment. L. Friedman, Crime and Punishment in American History 48 (1993) (hereinafter Friedman) ("From our standpoint, what is most obviously missing, as a punishment [in the colonial system of corrections], is imprisonment"). Colonial jails had a very limited function of housing debtors and holding prisoners who were awaiting trial. See id., at 49. These institutions were generally characterized by "[d]isorder and neglect." McGowen, The Well-Ordered Prison: England, 1780-1865, in The Oxford History of the Prison: The Practice of Punishment in Western Society 79 (N. Morris & D. Rothman eds. 1995) (hereinafter McGowen). It is not therefore surprising that these jails were quite permeable. A debtor could come and go as he pleased, as long as he remained within a certain area ("`prison bounds'") and returned to jail to sleep. Friedman 49. Moreover, a prisoner with connections could get food and clothing from the outside, id., at 50; see also W. Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-1848, p. 49 (1965) (hereinafter Lewis) ("Many visitors brought the felons such items of contraband as rum, tools, money, and unauthorized messages"). In sum, "[t]here was little evidence of authority," McGowen 79, uniformity, and discipline. Prison as it is known today and its part in the penitentiary system were "basically a nineteenth-century invention." 143 Friedman 48. During that time, the prison became the centerpiece of correctional theory, while whipping, a traditional form of punishment in colonial times, fell into disrepute. The industrialization produced rapid growth, population mobility, and large cities with no well-defined community; as a result, public punishments resulting in stigma and shame wielded little power, as such methods were effective only in small closed communities. Id., at 77. The rise of the penitentiary and confinement as punishment was accompanied by the debate about the Auburn and Pennsylvania systems, both of which imposed isolation from fellow prisoners and the outside. D. Rothman, The Discovery of the Asylum 82 (1971) (hereinafter Rothman) ("As both schemes placed maximum emphasis on preventing the prisoners from communicating with anyone else, the point of dispute was whether convicts should work silently in large groups or individually within solitary cells"); id., at 95. Although there were several justifications for such isolation, they all centered around the belief in the necessity of constructing a special setting for the "deviant" (i. e., criminal), where he would be placed in an environment targeted at rehabilitation, far removed from the corrupting influence of his family and community. Id., at 71; A. Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America 17, 19, 23 (1992); cf. Friedman 77 (describing the changing attitudes toward the origin of crime). Indeed, every feature of the design of a penitentiaryexternal appearance, internal arrangement, and daily routinewere aimed at achieving that goal. Rothman 79-80; see also id., at 83. Whatever the motives for establishing the penitentiary as the means of combating crime, confinement became standardized in the period between 1780 and 1865. McGowen 79. Prisons were turned into islands of "undeviating regularity," Lewis 122, with little connection to the outside, McGowen 108. Inside the prisons, there were only prisoners and jailers; the difference between the two groups was conspicuously 144 obvious. Id., at 79. Prisoners' lives were carefully regulated, including the contacts with the outside. They were permitted virtually no visitors; even their letters were censored. Any contact that might resemble normal sociability among prisoners or with the outside world became a target for controls and prohibitions. Id., at 108. To the extent that some prisons allowed visitors, it was not for the benefit of those confined, but rather to their detriment. Many prisons offered tours in order to increase revenues. During such tours, visitors could freely stare at prisoners, while prisoners had to obey regulations categorically forbidding them to so much as look at a visitor. Lewis 124. In addition to the general "burden on the convict's spirit" in the form of "the galling knowledge that he was in all his humiliation subject to the frequent gaze of visitors, some of whom might be former friends or neighbors," presence of women visitors made the circumstances "almost unendurable," prompting a prison physician to complain about allowing women in. Ibid. Although by the 1840's some institutions relaxed their rules against correspondence and visitations, the restrictions continued to be severe. For example, Sing Sing allowed convicts to send one letter every six months, provided it was penned by the chaplain and censored by the warden. Each prisoner was permitted to have one visit from his relatives during his sentence, provided it was properly supervised. No reading materials of any kind, except a Bible, were allowed inside. S. Christianson, With Liberty for Some: 500 Years of Imprisonment in America 145 (1998). With such stringent regimentation of prisoners' lives, the prison "had assumed an unmistakable appearance," McGowen 79, one which did not envision any entitlement to visitation. Although any State is free to alter its definition of incarceration to include the retention of constitutional rights previously enjoyed, it appears that Michigan sentenced 145 respondents against the backdrop of this conception of imprisonment. II In my view, for the reasons given in Hudson v. McMillian, 503 U. S. 1, 18-19 (1992) (THOMAS, J., dissenting), regulations pertaining to visitations are not punishment within the meaning of the Eighth Amendment. Consequently, respondents' Eighth Amendment challenge must fail. NOTES [] Briefs of amici curiae urging reversal were filed for the State of Colorado et al. by Ken Salazar, Attorney General of Colorado, Alan J. Gilbert, Solicitor General, and Juliana M. Zolynas, Assistant Attorney General, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Charlie Crist of Florida, Thurbert E. Baker of Georgia, Alan G. Lance of Idaho, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Patrick J. Crank of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Elizabeth Alexander, David C. Fathi, Steven R. Shapiro, Lenora M. Lapidus, Daniel L. Greenberg, John Boston, Michael J. Steinberg, and Kary L. Moss; for the National Council on Crime and Delinquency et al. by Jill M. Wheaton; and for the Public Defender Service for the District of Columbia et al. by Paul Denenfeld and Giovanna Shay. Roderick M. Hills, Jr., filed a brief for the National Council of La Raza et al. as amici curiae. [*] A prisoner's sentence is the punishment imposed pursuant to state law. Sentencing a criminal to a term of imprisonment may, under state law, carry with it the implied delegation to prison officials to discipline and otherwise supervise the criminal while he is incarcerated. Thus, restrictions imposed by prison officials may also be a part of the sentence, provided that those officials are not acting ultra vires with respect to the discretion given them, by implication, in the sentence.	{ "pile_set_name": "FreeLaw" }
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued September 9, 2009 Decided September 18, 2009 Before JOEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 08‐4294 UNITED STATES OF AMERICA, Appeal from the United States Plaintiff‐Appellee, District Court for the Western District of Wisconsin. v. No. 08 CR 23 JAVIER ARMAS‐CALVILLO, Defendant‐Appellant. Barbara B. Crabb, Chief Judge. ORDER Javier Armas‐Calvillo has been removed from the United States twice, and after serving his sentence for illegal reentry he’ll have one more to add to his tally. He was first forced to leave after serving a Wisconsin sentence for sexual assault. He snuck back into the country, only to be removed again after being convicted in Wisconsin in 2007 for manufacturing and delivering marijuana. Undeterred, he came back to Wisconsin a third time and was arrested again in 2008 on various drug charges. Soon after this arrest he was indicted for unlawfully reentering the United States following an order of removal, 18 U.S.C. § 1326, an offense to which he pleaded guilty. No. 08-4294 Page 2 A defendant‐‐like Armas‐Calvillo‐‐who was previously deported following a conviction for a felony drug‐trafficking offense, faces a 12‐level increase in his sentencing guidelines range. U.S.S.G. § 2L1.2(b)(1)(B). Relying on his 2007 drug convictions, the probation officer recommended imposing this guidelines hike. Armas‐Calvillo objected, since shortly before sentencing (but well after his second removal from the United States) he managed to have the drug convictions vacated. It’s not that Armas‐Calvillo was innocent. Rather, he was not properly advised of the immigration consequences of his pleas as required under Wisconsin law. Wis. Stat. § 971.08(2). Noting that at the time of his removal he was a convicted drug trafficker, and relying on our opinion in United States v. Garcia‐Lopez, 375 F.3d 586 (7th Cir. 2004), the district court rejected this argument and sentenced him to 30 months of imprisonment. Armas‐Calvillo renews this objection before us, but he cannot escape the holding in Garcia‐Lopez. In that case, the defendant was deported following a Wisconsin armed robbery conviction before sneaking back into the United States. He also pleaded guilty to illegal reentry and faced a higher guidelines range due to his prior conviction. But‐‐just like Armas‐Calvillo‐‐Garcia‐Lopez obtained an order vacating his Wisconsin conviction after he had been deported but shortly before sentencing because he received no warning about the immigration conse‐ quences of his guilty plea. The district court declined to impose a sentencing increase based on the vacated conviction, and the government appealed. Noting that the plain language of the guidelines indicates that the appropriate inquiry is whether the defendant had been convicted of a crime “at the time of deportation,” we reversed. Id. at 588 (emphasis in original). Armas‐Calvillo’s case is on all fours with Garcia‐Lopez. At the time of his removal, Armas‐Calvillo was a convicted drug‐trafficker. The vacation of those convictions, based on a minor procedural error, does nothing to change this fact. Armas‐Calvillo tries to escape this precedent by pointing to 8 U.S.C. § 1101(a)(48)(A), which defines a conviction as a formal judgment of guilt entered by a court. He argues that, since his convictions have been vacated and the presumption of innocence restored, he is no longer convicted, as defined by this statute. But this argument misses the point. The key to the sentencing increase is temporal‐‐the plain language of the guidelines requires the court to assess whether the defendant was removed after a drug‐trafficking conviction. When Armas‐Calvillo was removed, he had two drug convictions‐‐even as defined by 8 U.S.C. § 1101(a)(48)(A)‐‐on the books. As we noted in Garcia‐Lopez, this case might come out differently if the convictions were vacated upon a showing of actual innocence. 375 F.3d at 589. But those weighty concerns are not implicated here, and so we need not address them. Armas‐Calvillo also argues that the district court violated his Sixth Amendment rights when it, rather than the jury, found that he had prior convictions which were absent No. 08-4294 Page 3 from the indictment, exposing him to a higher sentence. But the Supreme Court has rejected that argument, Almendarez‐Torres v. United States, 523 U.S. 224, 244 (1998), and unless or until it changes course, we are bound by this precedent. See United States v. Stevens, 453 F.3d 963, 967 (7th Cir. 2006). Acknowledging the weight of Almendarez‐Torres, Armas‐Calvillo tries to distinguish his case by again noting that his drug convictions have been vacated. But we have already explained why that argument is unavailing, and mounting it again in this context only raises a distinction without a difference. The district court was required to properly calculate Armas‐Calvillo’s sentencing range under the guidelines, United States v. Rivera, 463 F.3d 598, 602 (7th Cir. 2006), and considering the vacated convictions was appropriately included in its calculus. Accordingly, the judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-7811 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JEMAL WALTER WILLIAMS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (CR-94-210-7, CA-01-3549-20-7) Submitted: March 21, 2002 Decided: March 28, 2002 Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Jemal Walter Williams, Appellant Pro Se. David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Jemal Walter Williams seeks to appeal the district court’s order denying his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. See United States v. Williams, Nos. CA-94-210-7; CA-01-3549-20-7 (D.S.C. Sept. 20, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2	{ "pile_set_name": "FreeLaw" }
107 F.3d 8 Igor Tatourianv.Immigration & Naturalization Service NO. 96-3296United States Court of Appeals,Third Circuit. Jan 23, 1997 Appeal From: BIA 1 Review Dismissed.	{ "pile_set_name": "FreeLaw" }
did not have a mailbox. The Treasurer published notice of the delinquent taxes in the Reno Gazette Journal and recorded a tax deed and lien. A tax sale was approved on October 11, 2011, and the Treasurer requested a lot book and sent, by certified mail, tax sale notices to the condo, to Chicago Title Insurance ServiceLink Division, and to LaSalle Bank as trustee for Washington Mutual Mortgage. The letter to the condo was returned as undeliverable. The Treasurer then sent a letter to ServiceLink, inquiring about an alternate address for McPhee, but none was available. The Treasurer also sent a tax sale notice to Kalanges, twice posted notice on the condo's front door, and published notice in the Reno Gazette Journal four times. The property was sold at a tax sale on April 25, 2012. After the tax sale, McPhee Henderson sued, among others, respondents Washoe County and the Treasurer to set aside the tax sale. Respondents moved to dismiss, providing evidence of their attempts to notify McPhee Henderson of the delinquent taxes and the tax sale. The district court granted the motion to dismiss, finding that the Treasurer made reasonable attempts to notify McPhee Henderson of the tax sale under NRS 361.595(3)(b). This appeal followed. Initially, because the district court considered evidence outside of the complaint, the district court converted the motion to dismiss into a motion for summary judgment. NRCP 12(b). We review an order granting a motion for summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). NRS 361.595(3)(b) requires the Treasurer to mail the tax sale notice by certified mail, return receipt requested, to the owner of the parcel shown on the tax roll and to any other person or entity who appears SUPREME COURT OF NEVADA 2 (0) 1947A eo to have an interest in the parcel. If the return receipt is returned unsigned, "the county treasurer must make a reasonable attempt to locate and notify the owner or other person or governmental entity before the sale." Id. Here, the return receipt for the tax sale notice to McPhee Henderson at the condo was returned unsigned. McPhee Henderson argues that the Treasurer did not then "make a reasonable attempt to locate and notify" it of the tax sale. It argued, among other things, that in addition to the actions that the Treasurer took, the Treasurer should have attempted to contact the homeowners' association identified in the lot book and searched for an address for Ken Matsumura, whose name (without an address) was referenced on a check from ServiceLink for a 2008 tax payment. Over the course of several years, the Treasurer mailed notices regarding the delinquent taxes and the tax sale to the property, to Sanford, who was the only person listed as the manager and registered agent for McPhee Henderson on the Nevada Secretary of State's website, to an address for Lauri Kalanges, to Chicago Title Insurance ServiceLink Division, and to LaSalle Bank as trustee for Washington Mutual Mortgage. The Treasurer also published notice of the delinquent taxes and the tax sale in the Reno Gazette Journal, recorded a tax deed and lien, and physically posted notice of the tax sale on the condo's door. In these circumstances, while it certainly would have been helpful for the Treasurer to contact the homeowners' association or to attempt to search for an address for Matsumura, the Treasurer's failure to take these actions do not render unreasonable the actions that she did take to locate McPhee Henderson. Hence, the actions that the Treasurer took satisfied her burden to "make a reasonable attempt to locate and notify" McPhee SUPREME COURT OF NEVADA 3 (0) 1941A e Henderson of the tax sale. NRS 361.595(3)(b); see also Jones v. Flowers, 547 U.S. 220, 226 (2006) (holding that, where the government is aware that its attempt to notify a parcel owner of a tax sale has failed, due process requires the government to take additional reasonable steps to provide the parcel owner with notice of the tax sale); Bogart v. Lathrop, 90 Nev. 230, 232-33, 523 P.2d 838, 839-40 (1974) (requiring the Tax Receiver to make a reasonable inquiry into the address of a taxpayer). Accordingly, we ORDER the judgment of the district court AFFIRMED.' J. Saitta Gibbons Pickering cc: Hon. Scott N. Freeman, District Judge Carol Webster Millie, Settlement Judge Law Offices of Thomas J. Hall Washoe County District Attorney/Civil Division Washoe District Court Clerk 'We decline to consider the qualified immunity issue because it is moot, both because we affirm the judgment in the County's favor and because McPhee Henderson alleged no monetary damages against the County. We have considered appellant's other arguments and conclude that they lack merit. SUPREME COURT OF NEVADA 4 (0) 1947A ea	{ "pile_set_name": "FreeLaw" }
405 Pa. 165 (1961) Freihofer Estate. Supreme Court of Pennsylvania. Argued May 31, 1961. July 17, 1961. Before JONES, C.J., BELL, JONES, COHEN, BOK and EAGEN, JJ. W. Hamlin Neely, with him Snyder, Wert, Wilcox, Frederick & Doll, for appellant. William H.S. Wells, with him Fairfax Leary, Jr., and Saul, Ewing, Remick & Saul, and High, Schwartz, Roberts & Seidel, for appellee. OPINION BY MR. JUSTICE BELL, July 17, 1961: A very narrow question is presented. Did the Orphans' Court have jurisdiction of a petition to terminate 166 a voting trust which was illegally entered into by an executrix-testamentary trustee? Stanley H. Freihofer died July 31, 1941, leaving a last will[] which was probated August 7, 1941. The widow is the sole beneficiary of income as well as the present sole executor, sole trustee and the present petitioner. Freihofer gave all his shares of stock in the William Freihofer Baking Company in trust to pay the net income to his wife with power of appointment of principal to and among their issue who survived his wife, and in default of appointment to their issue per stirpes who were living at her death. The will also contained a provision authorizing, the payment to his wife if the net annual income is less than $6000 in any year out of principal any balance necessary to make up any deficit under $6000. The will also contained a spendthrift trust clause covering both income and principal. Freihofer's widow, Hazel, married Ross D. Miller who at the present time is president of the Freihofer Baking Company and the voting trustee of the hereinafter mentioned voting trust. On March 22, 1946, Mrs. Miller, as executrix, and on March 22, 1956, Mrs. Miller, as testamentary trustee, entered into a 10 year voting trust agreement which included the Freihofer Estate's holdings of 10,698 shares of the Freihofer Baking Company and 1605 additional shares owned by another person or persons. This was done without the knowledge or approval of the Orphans' Court and was unauthorized and illegal. In 1947 an executors' account was filed in the Orphans' Court. It showed, erroneously and falsely, that the Estate had assets of 10,698 shares of stock of the Freihofer Baking Company, whereas in fact it held 10,698 voting trust certificates. For reasons unknown 167 to the lower Court or to this Court, the above mentioned was not audited until May 9, 1958. The account was confirmed and the said shares of stock not the voting trust certificates were awarded to the testamentary trustee (the present petitioner). No dividends have been paid by the Company for over a year and testator's widow has been deprived of both the income and the principal which testator bequeathed to her. She is now divorced from Miller and they are obviously at odds. Executrix presented the present petition alleging the aforesaid facts and asserting that she was being unlawfully deprived of the rights and benefits which testator gave her, that the testator's intention and will were being unlawfully nullified and that the interests of all the remaindermen were being jeopardized. Petitioner then prayed that the voting trust be terminated, but strange to say, did not ask for an Order directing a redelivery of the stock, nor even for general equitable relief. The lower Court sustained preliminary objections on the ground that it lacked jurisdiction to terminate a voting trust. Mrs. Miller in her capacity as executrix, as testamentary trustee, and as sole income beneficiary took this appeal. The jurisdiction of the Orphans' Court is statutory: Henderson Estate, 395 Pa. 215, 149 A. 2d 892; Rogan Estate, 394 Pa. 137, 145 A. 2d 530; Way Estate, 379 Pa. 421, 109 A. 2d 164. The Orphans' Court has exclusive jurisdiction of decedents' estates, of testamentary fiduciaries and their control, removal, discharge and surcharge and, of course, their administration and their accounts, and also of certain enumerated inter vivos trusts and, under certain circumstances, the title to personal property. In Henderson Estate, 395 Pa., supra, the Court held that the Orphans' Court had jurisdiction of life insurance policies which were 168 in decedent's possession at the time of his death, and pertinently said (pages 229, 230): "The Orphans' Court Act of [August 10,] 1951[], as amended, provides in Article III: `Jurisdiction. The Orphans' Court shall have exclusive jurisdiction of (1) Decedents' estates. . . (2) Testamentary trusts . . . (3) Inter vivos trusts. The administration and distribution of real and personal property of inter vivos trusts whether created before or after the effective date of this act. . . .' "In Rogan Estate, supra, the Court said (page 140): `"This section [Article III, § 301] considerably broadened the scope of the court's jurisdiction and jurisdiction now exists where the following situations arise: (1) If the personalty was in decedent's possession, actually or presumptively, at the time of death; (2) if the personalty came into the possession of decedent's personal representative subsequent to his death;[] (3) if neither (1) nor (2) exist, but if the personalty was `registered' in the name of decedent or his nominee [or in the name of decedent and/or other persons]; (4) if there is an allegation by the personal representative that the personalty was in possession of the decedent when he died."'" The Orphans' Court is also granted by statute all legal and equitable powers required for or incidental to the exercise of its jurisdiction. While it has often been said that the Orphans' Court is a Court of Equity, it is more accurate to say that "in the exercise of its limited jurisdiction conferred entirely by statute, it applies the rules and principles of equity." Williard's Appeal, 65 Pa. 265, 267. Mains's Estate, 322 Pa. 243, 247, 185 A. 222. See also: Webb Estate, 391 Pa. 584, 138 A. 2d 435. 169 The Orphans' Court correctly sustained respondent's preliminary objections for the reason and on the ground that it lacked jurisdiction to terminate this voting trust which was illegally entered into by the petitioner-fiduciary. However, that Court has the power to order a redelivery[] to the testamentary trustee of the 10,698 shares of the stock of the William Freihofer Baking Company and the return by this fiduciary of the voting trust certificates she received in exchange. We believe that the equities and the unusual circumstances in this case require a remanding of the record with directions to grant petitioner leave to amend her petition, and particularly the prayer thereof, and to hold such further proceedings and make such additional orders as under all the facts it deems proper and just. Decree affirmed with modifications. NOTES [] Date undisclosed. [] P.L. 1163, 20 PS § 2080.301 et seq. [] This includes an agent or attorney employed by the executor or administrator. See Webb Estate, 391 Pa. 584, 138 A. 2d 435. [] It, of course, also has the power of surcharge and the power of removal of the testamentary trustee.	{ "pile_set_name": "FreeLaw" }
176 Ill. App.3d 858 (1988) 531 N.E.2d 913 STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellee, v. THEASTER SHELTON et al., Defendants-Appellants. Nos. 87-3778, 87-3877 cons. Illinois Appellate Court First District (4th Division). Opinion filed November 17, 1988. 859 860 Walsh, Neville, Pappas & Mahoney, of Chicago (Ronald F. Neville, of counsel), for appellants. Conklin & Roadhouse, of Chicago (Thomas W. Conklin, Howard L. Lieber, and Renee S. Levitt, of counsel), for appellee. Reversed and remanded. JUSTICE LINN delivered the opinion of the court: Plaintiff, State Farm Fire & Casualty Company, filed a complaint for declaratory judgment seeking a ruling that it had no duty to defend or indemnify its insured, Theaster Shelton, in a wrongful death action. The trial court granted State Farm's motion for summary judgment on its complaint, finding that since Shelton had been convicted of voluntary manslaughter for the shooting death of the victim, his actions were excluded from coverage under the insurance policy. Shelton appeals, contending that the trial court improperly took judicial notice of the facts and results of the criminal proceeding and that the declaratory judgment action was premature. We reverse and remand. BACKGROUND On January 15, 1983, Theaster Shelton, the insured, shot and killed Thomas Haseman. The facts surrounding that incident are contained in an unpublished Supreme Court Rule 23 order (107 Ill.2d R. 23), in which Shelton's conviction of murder after a bench trial was reduced to voluntary manslaughter by the appellate court. People v. Shelton (1st Dist. 1985), No. 84-1265. Thereafter, Haseman's wife filed a wrongful death action against Shelton seeking damages. Her second amended complaint alleges in count I that the shooting was intentional. Counts II and III sound in negligence. After Shelton was served with the lawsuit, he tendered it to State Farm Fire & Casualty Company, his insurer, which agreed under a reservation of rights to defend the case. Shelton selected his own attorneys. 861 State Farm then filed its complaint for declaratory judgment, seeking a declaration that it had neither a duty to defend nor to indemnify Shelton because his conduct in the underlying shooting caused "intentional or expected" injury, which is excluded under the policy. State Farm moved for summary judgment on the basis that the criminal conviction for voluntary manslaughter established as a matter of law that Shelton's conduct was intended or expected. Shelton's attorney opposed the motion without filing affidavits or other evidentiary material. He argued that the declaratory action and summary judgment motion were premature because the underlying tort suit had not been resolved and the declaratory action court's decision on the nature of the insured's conduct may improperly resolve contested issues in the tort litigation. The trial court, believing itself bound to take judicial notice of the Rule 23 order, granted State Farm's motion for summary judgment on its complaint for declaratory relief. OPINION This case squarely presents the issue of whether an insurance company can get declaratory judgment that it has no duty to defend its insured in the underlying personal injury action, before the resolution of that litigation, on the grounds that the insured was convicted of an intentional crime arising out of the incident. Despite some analytical difficulties we conclude that it cannot. Resolution of this case begins with analysis of the insurance company's duty to defend and the Illinois case law that allows a criminal conviction to be used as prima facie, but not conclusive, evidence of noncoverage under an insurance policy. 1 The insurer's duty to defend its insured in a lawsuit hinges upon a liberal reading of the complaint. (Maryland Casualty Co. v. Peppers (1976), 64 Ill.2d 187, 355 N.E.2d 24.) Even if the complaint alleges conduct that is not covered by the policy (usually intentional tortious conduct), the insurer must defend the suit if the complaint also alleges covered conduct (negligence). (Maryland Casualty Co. v. Peppers (1976), 64 Ill.2d 187, 355 N.E.2d 24.) The rule has thus arisen that the insurer is duty bound to defend its insured whenever conduct alleged is potentially within policy coverage, even if the insurance company discovers that the allegations are groundless, false, or fraudulent. (Thornton v. Paul (1978), 74 Ill.2d 132, 144, 384 N.E.2d 335, 339; LaRotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App.3d 446, 451, 408 N.E.2d 928, 933 (where there is doubt as to whether there is potential coverage, it is to be resolved in favor of insured).) 862 Only if it is clear on the "face" of the allegations "that the claim is beyond policy coverage" can the insurer conclude that it has no duty to defend the lawsuit. 87 Ill. App.3d at 451, 408 N.E.2d at 933. See Bay State v. Wilson (1983), 96 Ill.2d 487, 451 N.E.2d 880. 2 Notwithstanding this broad duty to defend, the insurer may establish proof after the resolution of the personal injury action that the insured's conduct is not covered under the policy, and, therefore, the insurance company has no duty to pay the judgment against the insured. See J. Roth Builders, Inc. v. Aetna Life & Casualty Co. (1987), 151 Ill. App.3d 572, 503 N.E.2d 782 (in a garnishment action following a jury verdict against the insured, insurance company proved that insured's conduct in burning down a house was wilful and wanton and therefore not covered under insurance policy). State Farm argues that its policy exclusion, which applies if the occurrence or injury to the plaintiff was "intended or expected," was established as a matter of law because of Shelton's criminal conviction. Shelton, on the other hand, maintains that the trial court improperly looked beyond the allegations of Haseman's wrongful death complaint to decide that State Farm had no duty to defend or indemnify him. We are thus faced with two, seemingly irreconcilable principles of law: (1) the duty to defend depends solely on the allegations of the complaint itself and (2) on summary judgment, the court may look beyond the complaint to such facts as appear in affidavits or depositions. The trial court judge took judicial notice of the Rule 23 conviction, reasoning that he was not required to wear "blinders" and consider only the allegations of the complaint. Despite the seeming logic of this result, we note that it ignores the more fundamental issue of whether the declaratory judgment court is empowered to decide factual issues that are integral to the injured person's lawsuit against the insured. 3 In this regard, we are bound to follow the Illinois Supreme Court decisions that not only prohibit the declaratory judgment court from deciding such ultimate issues of fact but also adhere to the evidentiary rule that a criminal conviction is only prima facie, not conclusive, evidence in a civil suit. (Thornton v. Paul (1978), 74 Ill.2d 132, 384 N.E.2d 335.) In Thornton v. Paul, the insurance company declined to defend a lawsuit against its insured on the grounds that the insured's conduct was a battery and thus excluded from coverage. Default judgment was rendered in favor of the injured party, who then instituted a garnishment action to collect from the insurer. The insurance company attempted to introduce evidence that the insured had been convicted of a battery arising out of the incident but the 863 trial court held that it was estopped from asserting no coverage because of its refusal to defend. The supreme court reversed, holding that the insurer did have the right to produce in the garnishment proceedings evidence of the criminal conviction arising out of the incident. The conviction would be prima facie, not conclusive, evidence that could take the insured's conduct outside of the policy's coverage. In that event, there would be no duty to pay the judgment. In the context of the insurance company's initial duty to defend, however, the Thornton court agreed with prior authority that it "would not be appropriate, under the facts of this case, for the insurer to seek a declaratory judgment that the insured's conduct constituted a battery and was thus beyond the coverage of the insurance policy. In such a proceeding, an issue crucial to the insured's liability in the personal injury action and also one on which punitive damages could ultimately be assessed would be determined in a purely ancillary proceeding with the plaintiff and defendant in the personal injury action both aligned on the same side as defendants in the declaratory judgment action." (Emphasis added.) (74 Ill.2d at 159, 384 N.E.2d at 346.) The court also concluded that the insurance company's refusal to defend the lawsuit required it to reimburse its insured for the costs of the litigation. In the pending case, State Farm's duty to defend Shelton in the Haseman lawsuit arises out of the allegations in the complaint that his conduct was negligent and thus within policy coverage. The pertinent allegation reads: "1. * * THEASTER SHELTON, had and held in his hands a certain pistol, fully loaded and ready to fire, and at said time and place did negligently and carelessly [cause] a gunshot wound in the body of THOMAS HASEMAN, specifically in the area of the neck." Other allegations in the complaint charge that Shelton intentionally shot the deceased, as indeed the criminal court determined. 4 Illinois case law holds that when a declaratory judgment court is asked to declare whether an insured's conduct is covered under a policy, it must not determine disputed factual issues that are crucial to the insured's liability in the underlying personal injury lawsuit. E.g., Maryland Casualty Co. v. Peppers (1976), 64 Ill.2d 187, 355 N.E.2d 24 (declaratory judgment court's holding that tort plaintiff's injuries were intentionally inflicted was "premature" and would be reversed because such holding might preclude injured party's right to recover against insured); Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App.3d 807, 386 N.E.2d 529 (since issue of independent contractor status of driver was one of ultimate facts upon which injured party's recovery was predicated in underlying 864 action, it was improper for court in declaratory judgment action to determine which of two insurance carriers had obligation to defend driver and which policy provided primary coverage); Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App.3d 1146, 399 N.E.2d 252 (insurer held to have duty to defend insured in action alleging intentional and "willful and wanton" conduct; proper procedure was to dismiss declaratory action without prejudice to refiling upon conclusion of personal injury suit); Allstate Insurance Co. v. Gleason (1964), 50 Ill. App.2d 207, 200 N.E.2d 383 (judgment of the trial court in the declaratory action was "premature" and should be reversed). See also 18 G. Couch, Insurance § 74:140, at 646 (rev. 2d ed. 1983) ("The remedy of a declaratory judgment may not be used for the purpose of testing the sufficiency of a defense in pending litigation"). The cases State Farm relies on are distinguishable. Indeed, in all but one the underlying tort judgment was resolved before the declaratory action on the coverage issue was held. (See, e.g., Bay State v. Wilson (1983), 96 Ill.2d 487, 451 N.E.2d 880; Shelter Mutual Insurance Co. v. Bailey (1987), 160 Ill. App.3d 146, 513 N.E.2d 490.) In Shelter, in fact, the declaratory judgment court held the insurer's motion for summary judgment in abeyance until after the personal injury action was resolved, staying the hearing on the coverage issue because it involved ultimate issue of fact common to the underlying lawsuit. In Mid-America Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App.3d 1121, 441 N.E.2d 949, it appears that the underlying lawsuit was not actually resolved before the resolution of the declaratory action on the coverage issue. The court granted summary judgment to the insurance company on the grounds that the insured intended to harm the plaintiff, a fact admitted in the plaintiff's deposition and by a guilty plea to a criminal charge. The court granted summary judgment that the conduct was intentional and thus excluded from coverage, based on the admissions of the insured. In the pending case, Shelton has not admitted an intent to harm and in fact expressly denied it in the criminal trial. These cases do not support State Farm's position. In fact, they support Shelton's contention that the trial court prematurely determined as a matter of law that State Farm had no duty to undertake the defense of the wrongful death suit because the results of Shelton's actions were "expected or intended" under the exclusionary clause of the policy. 5 A major purpose of declaratory relief in the insurance context is to afford a summary adjudication of questions of law, such as the construction of language in the insurance policy or the legal relationship 865 between the parties. (See Johnson v. Cape Industries, Ltd. (1980), 91 Ill. App.3d 192, 414 N.E.2d 470 (question whether defendant corporation was acting as an agent or shareholder of another corporation and therefore whether it was an insured under policy was concerned only with issues of coverage and not issues crucial to determination of liability in personal injury action).) As aptly expressed by one court, declaratory judgment should not be used to force the parties to an injury action to have a "dress rehearsal" of an important issue expected to be tried in the injury action. Employers' Fire Insurance Co. v. Beals (1968), 103 R.I. 623, 240 A.2d 397. The crucial point, then, is whether the construction of the exclusionary language of State Farm's policy is an issue of law independent of the ultimate issues to be resolved in the wrongful death action. State Farm maintains that the words "intentional or expected" in the policy allow the court to find Shelton's conduct in shooting Haseman to be something less than intentional, so as to require a lesser degree of proof. While we agree that "expected" is a broader concept than "intentional," it does not necessarily follow that the declaratory judgment court was compelled to find that Shelton, in shooting Haseman, expected bodily injury to be the consequence of his actions.[1] According to the Rule 23 order upon which the trial court relied, Shelton testified that he fired a warning shot into the ground, did not intend to harm Haseman, and did not remember firing the fatal shot. If the jury in the wrongful action determines that his mental state was such that he did not intend to harm the victim, it could find in his favor or find him negligent only. (We do not suggest this is likely, merely possible.) Nevertheless, in order to uphold the trial court's summary judgment on the coverage issue we would have to find as a matter of law that a jury could never enter a verdict favorable to Shelton, particularly on the intentional harm count. In other words, we would put ourselves in the place of the jury without benefit of hearing the testimony in the tort case. In the pending case, had the declaratory judgment court heard the matter following the resolution of Haseman's civil suit and considered the trial transcript along with the criminal conviction, the court may then have been justified in entering judgment in State Farm's favor 866 as a matter of law. That would have been a situation similar to that found in Bay State v. Wilson (1983), 96 Ill.2d 487, 451 N.E.2d 880. There, the insured shot a man in the back outside of his home and was convicted of aggravated battery. He raised no issue of self-defense during the criminal trial. The injured party filed suit alleging intentional conduct and the insurance company declined the defense on the grounds that the exclusionary clause applied. After the tort plaintiff amended his complaint to add negligence, however, the insurance company did accept the defense under a reservation of rights. The plaintiff offered to settle for the policy limits before trial, but the insurance company refused and filed a declaratory judgment action as to coverage. The tort plaintiff then voluntarily dismissed the intentional tort count and went to trial on negligence, winning a judgment. Thereafter the issues raised in the declaratory judgment proceedings, which had been in abeyance pending the tort action, were heard. On the question of insurance coverage, the insurance company offered the criminal conviction as evidence that it had no duty to indemnify the insured for the judgment. The trial court nevertheless entered judgment against the insurance company. The appellate court reversed, however, finding against the insured as a matter of law based on all matters of record, including the trial transcript of the tort action. The supreme court affirmed the appellate court, specifically noting that the criminal conviction was not conclusive evidence but was properly considered along with the results of the civil action. The court noted that the insured had not raised self-defense in the criminal trial. However, he offered a stipulation in the declaratory action that he "intentionally shot [the tort plaintiff] with a reckless and wanton belief that he was acting in self defense." (96 Ill.2d at 491, 451 N.E.2d at 881.) Whatever he meant by the stipulation, the court noted that he unquestionably had been shown to have "expected" the results of his actions under the evidence. Thus, there was no coverage under the insurance policy as a matter of law. Bay State reinforces the need for a resolution of the tort litigation before the declaratory judgment court decides the coverage issue. Only then can it determine if the insurance company must indemnify the insured based on the language of the policy. 6 At the duty-to-defend stage, the court cannot assume that the insured's criminal conviction alone will preclude coverage. Nor can the court adjudicate disputed facts. That is the genesis of the rule that the court must look only to the complaint to see if the allegations show that the insured's conduct is potentially within coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill.2d 187, 355 N.E.2d 24.) 867 Only if the coverage issue involves such ancillary matters as whether the insured paid the premiums or whether he is the proper insured under the policy can the court look beyond the complaint. (See Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App.3d 807, 386 N.E.2d 529.) In Fidelity & Casualty Co. v. Envirodyne Engineers, Inc. (1983), 122 Ill. App.3d 301, 461 N.E.2d 471, the court noted that an insurer may challenge the existence of the duty to defend by offering evidence to prove that the insured's actions fell within a policy exclusion, adding, "The only time such evidence should not be permitted is when it tends to determine an issue crucial to the determination of the underlying lawsuit. [Citations.] * * * If a crucial issue will not be determined, we see no reason why the party seeking a declaration of rights should not have the prerogative to present evidence that is accorded generally to a party during a motion for summary judgment in a declaratory proceeding." 122 Ill. App.3d at 304-05, 461 N.E.2d at 474. 7 The Illinois Supreme Court has explained why the scope of declaratory judgment proceedings on the duty to defend is necessarily limited. Maryland Casualty Co. v. Peppers noted that problems of res judicata or collateral estoppel may arise out of the declaratory judgment court's determination of issues crucial to the insured's liability in the personal action. "Also, the order and burden of proof would be oriented to and dictated by the declaratory judgment action and not by the primary litigation, the personal injury suit." Thornton v. Paul (1978), 74 Ill.2d 132, 159, 384 N.E.2d 335, 346. State Farm fails to demonstrate why Maryland Casualty v. Peppers, Thornton v. Paul, and the other authorities do not control this case. 8 To summarize, State Farm has the duty to defend (continue paying for the defense of) the Haseman lawsuit because (1) issues of ultimate facts upon which recovery is predicated in the injured party's personal injury action must not be determined in the declaratory action and (2) the fact that Shelton was convicted of voluntary manslaughter arising out of the incident is not a conclusive adjudication of his liability in the civil suit. We believe that the trial court erred in granting State Farm summary judgment. In our opinion, the cases require us to hold that Shelton is entitled to defend against the wrongful death action by offering whatever testimony or evidence he believes will rebut the prima facie evidence of his liability, even though such evidence contradicts the criminal court's findings. In addition to Shelton's right to an unhampered defense in the tort action, the plaintiff should also have the opportunity to present its theories of the *868 case without being limited by a ruling of the declaratory judgment court. While the criminal conviction is certainly strong evidence, the supreme court holds that it is not conclusive. In any event, State Farm will be entitled to present the conviction as a defense to any duty to indemnify Shelton in supplemental proceedings following any judgment in favor of Haseman. We hold only that State Farm does have a duty to defend the Haseman lawsuit. For the foregoing reasons, we reverse the summary judgment entered in favor of State Farm and remand to the declaratory judgment court to either dismiss the proceedings without prejudice or to stay the matter pending resolution of the wrongful death action. Reversed and remanded. JIGANTI, P.J., and JOHNSON, J., concur. NOTES [1] Harm resulting from firing a gun may well be "foreseeable" in the abstract. Whether it is truly expected under a given set of circumstances, however, is a different issue. (See Grinnell Mutual Reinsurance Co. v. Frierdich (1979), 79 Ill. App.3d 1146, 399 N.E.2d 252; Bay State v. Wilson (1983), 96 Ill.2d 487, 451 N.E.2d 880.) State Farm offers no concise denotation of the term which appears in its policy and simply assumes that Shelton's conduct was at least expected, if not intentional.	{ "pile_set_name": "FreeLaw" }
501 S.W.2d 352 (1973) INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Leslie ESTEP, Appellee. No. 8389. Court of Civil Appeals of Texas, Amarillo. October 23, 1973. Rehearing Denied November 19, 1973. 353 Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for appellant. Maner & Nelson, John F. Maner, Lubbock, for appellee. ELLIS, Chief Justice. In this workmen's compensation suit, the insurance carrier has appealed from a judgment entered on a jury's verdict awarding the claimant compensation for total and permanent incapacity. Affirmed. Leslie Estep, plaintiff-appellee, brought suit against Insurance Company of North America, defendant-appellant, for compensation for injury sustained by plaintiff while allegedly working for Bronco Gin in Yoakum County, Texas, as a result of being shoved by another employee against a bedpost and falling to the floor. The jury found in answers to special issues submitted that the plaintiff received the injury while an employee of Bronco Gin and while acting in the course and scope of his employment, and that the plaintiff was not in a state of intoxication at the time of the injury. The record reveals that on November 4, 1970, between 7 and 8 p. m., Estep was preparing himself a meal in the house provided for him by Bronco Gin and located on the gin premises near the gin office. Estep had been working as a weigher for the gin prior to his injury. His particular job required that he be on call 24 hours a day because, during ginning season, farmers brought in their cotton and grain for weighing at all hours of the day or night. While Estep was preparing his meal, Red Ferguson, a truck driver employed by the owner of the gin and who had been staying in the house for a few days, came into the house and turned on his radio extremely loud. Estep requested that Ferguson turn down the radio. Ferguson refused to lower the volume of the radio and left the house. Estep then threw some of Ferguson's clothes out of the house into the yard. There had been previous conflicts between Estep and Ferguson regarding the loudness of the radio. Further, Estep testified that he was in charge of the house and that Ferguson had no permission to move in with him. On this occasion when Ferguson returned to the house, Estep again requested him to turn down the radio. Ferguson again refused and shoved Estep backwards, whereupon Estep struck his back on a bedpost and then fell to the floor, thereby causing the injury involved in this suit. Appellant bases its appeal on seven points of error. The insurance company asserts by way of the first six points that (1) there was no evidence or insufficient evidence to support the submission of Special Issue No. 2 as to whether the injury sustained by plaintiff was received while he was an employee of Bronco Gin and the jury's affirmative answer thereto; (2) there was no evidence or insufficient evidence to support the submission of Special Issue No. 3 as to whether the injury sustained by plaintiff was received in the course of his employment with Bronco Gin and the jury's affirmative answer thereto; and (3) because the uncontroverted evidence established plaintiff's intoxication, there was no evidence or insufficient evidence to support the submission of Special Issue No. 15 as to whether plaintiff was intoxicated at the time of the injury and the jury's answer that he was not intoxicated. In the seventh point, appellant complains of the overruling of its motion for 354 instructed verdict on the grounds that the evidence conclusively established that the plaintiff was not an employee of Bronco Gin at the time of the injury and that plaintiff's injury did not arise out of the course and scope of his employment. There was testimony by Estep and by Jesse Shaw, the owner of the Bronco Gin, that Estep was paid through November 5, 1970. Also, there was testimony by Estep and by Jim Goodman, an employee of the gin, that Estep worked at and around the gin on the day of the injury, November 4, 1970. Although Estep testified that he had not quit his job prior to the injury, there is testimony by other witnesses that is either conflicting or unclear as to whether Estep had "quit the gin" prior to the injury. Although there was testimony that Johnny Brooks had replaced Estep prior to the injury, it was not clearly established as to when Brooks replaced Estep. Also, there is a conflict in Brooks' own testimony as to whether he had been hired before or after the injury. It is apparent that reasonable minds could differ as to the conclusion to be reached from the evidence, and it is our opinion that a fact issue was presented and there was no error in submitting Special Issue No. 2 regarding Estep's employment by the gin at the time of the injury. Further, we hold, after considering the record as a whole, that there was sufficient evidence to support the jury's finding that plaintiff sustained the injury while he was an employee of Bronco Gin and that such finding was not contrary to the great weight and preponderance of the evidence. Appellant further contends that the appellee's injury is not compensable on the grounds that the evidence establishes that the injury did not result from a risk or hazard incident to plaintiff's employment, and that it did not relate to, arise out of, or result from any act of the employee in the furtherance of the employer's affairs or business. We recognize that the mere fact that an employee is injured by another while at work for his employer does not in and of itself make the injury compensable. Liberty Mutual Insurance Co. v. Hopkins, 422 S.W.2d 203 (Tex.Civ.App. Beaumont 1967, writ ref'd n. r. e.). Whether an employee sustained an injury while in the course and scope of his employment must be determined on the peculiar facts of each case and as a question of fact. Texas Employers' Insurance Ass'n v. Davidson, 295 S.W.2d 482 (Tex.Civ.App. Fort Worth 1956, writ ref'd n. r. e.). Also, it is not required that the injury should have occurred during the hours of actual service, nor that at the time of being injured the employee should have been engaged in the discharge of any specific duty incident to his employment. Texas Employers' Ins. Ass'n v. Anderson, 125 S.W.2d 674 (Tex. Civ.App. Dallas 1939, writ ref'd). In the case of Liberty Mutual Insurance Co. v. Hopkins, supra, the injury resulted from a dispute caused by the injured employee stepping in front of another employee at a water fountain on the employer's premises. In holding that the injuries were sustained in the course and scope of the claimant's employment, the court noted that an employee in the course of his employment may perform any act of a personal nature that a person might reasonably do for his health and comfort such as quenching thirst or relieving hunger. Such acts are considered as incidental to his service and the injuries sustained while so doing arise out of the employment and are compensable. Also, see New York Casualty Co. v. Wetherell, 193 F.2d 881 (5th Cir. 1952). It is also recognized that under Texas workmen's compensation law injuries received by an employee while on a lunch break on an employer's premises are compensable. Texas Employers' Insurance Ass'n v. Davidson, supra; Travelers Insurance Company v. McAllister, 345 S.W.2d 355 (Tex.Civ.App. Amarillo 1961, writ ref'd n. r. e.). Both of the above cited cases involved injuries sustained by the employee during his lunch hour while on the employer's premises in a place he was 355 permitted but not required to be. We note that in the instant case there is evidence that the appellee was not only permitted to be present in the house on the employer's premises, but his "being there" or availability was a definite condition of his employment, even though he was paid only for the hours he worked in the gin office. Also, it is significant that the claimants in both the Davidson and McAllister cases were not being paid at the time of their injuries, yet the court in each instance held that their injuries were compensable. In the case of Texas Employers' Insurance Association v. Cecil, 285 S.W.2d 462 (Tex.Civ.App. Eastland 1955, writ ref'd n. r. e.) it was held that an assault on an employee by a fellow employee provoked by the use of abusive and obscene language in complaining of the greasing of a tile by the assailant, constituting an interference with the assaulted employee's work, "arose out of and originated in the course of his employment." In that case, James Eoff, the employee who greased the tile, assaulted Harry Cecil, the employee who had used the obscene language concerning the greasing of the tile. The assault resulted in Cecil's death. The court held that Cecil was making a legitimate complaint concerning the interference with his work and further stated: "... The reason for the assault may have been personal to Eoff but was not necessarily personal to Cecil. With him, it involved a complaint about an interference with work which he was doing in the course of his employment. An assault and injury which results from a controversy over interference with an employee's work is connected with the performance of his work and is a risk incidental to his employment." The court also stated: "... Although the unfortunate nature of the language used may have caused Eoff to make the assault, still Cecil was, at the time, stating his complaint at the interference with his work because of the greased tile ... The altercation here involved arose over Cecil's complaint about an interference with his work and it is immaterial that in making such complaint, he used the language shown by the evidence... The assault arose out of and originated in the course of Cecil's employment...." It has been held that if the terms of the contract of employment require the workman to sleep on the premises of the employer, he is performing services having to do with and originating in the business of the employer while he is on the premises, even when off active duty, if he is doing what might be reasonably expected of him under the circumstances. Texas Employers' Ins. Ass'n v. Lawrence, 14 S.W.2d 949 (Tex.Civ.App. Eastland 1929, writ ref'd); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App. Eastland 1931, writ ref'd). In the Southern Surety Co. case it was noted that where an employee was on duty 24 hours a day attending an engine, so long as he was in hearing of it, he was engaged in the performance of his employer's work under the workmen's compensation statute. In Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72, 73 (1922), 28 A.L.R. 1402, the Texas Supreme Court recognized that "(a)n injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business." In the instant case, there is evidence to the effect that Estep was on call 24 hours per day; that his availability was a significant part of his employment and that he had already worked some 69 hours that week; that he was on the employer's premises and available to weigh products which might come in at any time, and during an apparent lull in activities, he was preparing his meal; that he was in charge of the house; and that Ferguson's moving in without permission and his conduct in 356 turning up the radio constituted an interference with his privacy and quietude to which he was entitled as he sought to satisfy his physical needs which in turn would enable him to effectively perform the duties required of him by his employer. He had the right if not the duty to complain of any interference with his privacy and comfort. See Texas Employers' Insurance Association v. Cecil, supra. From a consideration of the entire record and in the light of the tenor of the above cited authorities, it is our opinion that a fact issue was raised and that the evidence sufficiently supports the submission of and the jury's answer to Special Issue No. 3, i. e., that the appellee was in the course and scope of his employment at the time he sustained the injury. We have carefully considered the various cases cited by the appellant which hold that under the respective fact situations the specific activity involved was not related to the injured workman's employment. Among other cases cited by appellant is American General Ins. Co. v. Williams, 227 S.W.2d 788 (Tex.1950), dealing with injuries received by an employee as a result of an argument over a side-bet in a dice game. The dice game occurred before any of the work had commenced and was not shown to have been related in any manner to the injured workman's employment. Appellant also cites the case of McKim v. Commercial Standard Ins. Co., 179 S.W.2d 357 (Tex.Civ.App. Dallas 1944, writ ref'd) wherein the claimant, an employee of a hat factory, was injured on her lunch break when she was in the process of trying to purchase a hat. In this case, it is apparent that the employee left the sphere of her employment and became a patron rather than an employee of the company. The appellant also relies upon the case of Loyd v. Texas Employers Insurance Association, 280 S.W.2d 955 (Tex.Civ.App. Texarkana 1955, writ ref'd) wherein the claimant had returned from his vacation and was subject to call from his employer at any time. While he was upon a ladder painting his house he heard the telephone ring and as he started down the ladder he fell and was injured. The court held that he failed to show that at the time of his injury he was doing anything in furtherance of his employment. We believe that the cases cited by the appellant are distinguishable from the instant case in that, in each instance, the employee was found to be fulfilling a personal need not related to his employer's business. In the instant case it is our opinion that the employee's activities were sufficiently related to the injured employee's employment to create a fact issue for the jury's determination and that the evidence is sufficient to support the jury's findings. With respect to the plaintiff's intoxication, the testimony did not clearly establish that the plaintiff was intoxicated on the occasion in question. All testimony as to his intoxication dealt with prior periods and was uncertain as to the time the witness observed the plaintiff. The plaintiff testified unequivocally that he was not drunk nor had he taken a drink on the day in question. Jim Goodman testified that Estep was not drunk, nor did he appear to have been drinking, when Mr. Goodman went to his aid after the altercation in the house. Johnny Brooks testified that he had seen Estep drunk at times, but did not testify as to any specific dates. Roy Brooks testified that sometime prior to the altercation he had seen Estep at the gin and that he appeared to have been drinking. He also said that at the same time he saw Estep stumble and fall into some bushes beside his house, apparently drunk. Brooks' testimony failed to specify the exact date the incident occurred. A Mrs. Tidwell testified that one day in November she and her sons were parked in her car in front of Estep's house at the gin. According to her testimony, Estep came out of the house and took some drinks from a bottle in front of her car. Prior to and during these activities, Mrs. Tidwell saw him throw some clothes into the yard and onto a pickup. She also testified that he stumbled and fell to the ground, apparently drunk, and lay there for some ten minutes. *357 However, Mrs. Tidwell could not remember the exact date of this occurrence. It is our opinion that a fact issue was raised regarding the plaintiff's intoxication and that the evidence is sufficient to support both the submission of the issue and the jury's answer that plaintiff was not intoxicated. For the reasons above stated we overrule appellant's contention that the trial court erred in overruling the motion for instructed verdict. It is our opinion that the evidence raised sufficient issues of fact to submit the questions with respect to plaintiff's employment at the gin, whether the injury was sustained in the course and scope of his employment and whether he was intoxicated. If evidence is offered from which reasonable minds could reach different conclusions, the question is for the jury. Sharp v. Chrysler Corporation, 432 S.W.2d 131 (Tex.Civ.App. Houston [14th Dist.] 1968, writ ref'd n. r. e.). In view of the foregoing, the appellant's points of error Nos. 1-7 are overruled. Accordingly, the judgment of the trial court is affirmed.	{ "pile_set_name": "FreeLaw" }
12 F.3d 1101 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.German VALDEZ-TRUJILLO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE Respondent. No. 93-1864. United States Court of Appeals, Seventh Circuit. Submitted Nov. 16, 1993.Decided Nov. 18, 1993. Before COFFEY, FLAUM and KANNE, Circuit Judges. ORDER 1 German Valdez-Trujillo petitions for review of the decision of the Board of Immigration Appeals ("BIA") which refused to grant him a discretionary waiver of deportation to Mexico under 8 U.S.C. Sec. 1182(c). For the following reasons, we deny the petition for review and affirm the decision of the BIA. 2 Trujillo entered the United States illegally in 1978. He became a lawful permanent resident in 1981. In 1990 Trujillo pleaded guilty in the Circuit Court of Cook County, Illinois, to unlawful possession with intent to deliver between 400 and 900 grams of cocaine, and to unlawful possession of between 1 and 15 grams of cocaine. He was sentenced to 14 years' imprisonment. As a result of these convictions, the Immigration and Naturalization Service ("INS") sought to deport Trujillo under 8 U.S.C. Sec. 1251(a)(2)(A)(iii). Trujillo conceded his deportability before an immigration judge and sought discretionary relief under 8 U.S.C. Sec. 1182(c).1 The immigration judge denied relief, and the BIA affirmed. 3 We have jurisdiction to review all final orders of deportation. 8 U.S.C. Sec. 1105a(a). We review the decision of the BIA, not the immigration judge. Vergara-Molina v. INS, 956 F.2d 682, 684 (7th Cir.1992). Discretionary denials are reviewed for abuse of discretion and are "limited to whether the discretion was actually exercised and whether it was exercised in an arbitrary and capricious manner." Garcia-Lopez v. INS, 923 F.2d 72, 74 (7th Cir.1991). The BIA abuses its discretion if its decision was made without a rational explanation, inexplicably departed from established policies, or rested upon an impermissible basis. Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir.1991). 4 In exercising discretion under section 1182(c), the BIA must balance the social and humane considerations presented in favor of an alien against the adverse factors evidencing an alien's undesirability as a permanent legal resident. Matter of Marin, 16 I. & N.Dec. 581, 584 (B.I.A.1988). In Marin, the BIA articulated a list of favorable and unfavorable factors to be weighed in the context of an application under section 1182(c). Id. Favorable factors include family, property, or business ties in the United States; residence of long duration; evidence of hardship to the alien and his family if he is deported; evidence of value and service to the community; a history of employment, and proof of genuine rehabilitation if a criminal record exists. Id. Unfavorable factors include the nature, recency, and seriousness of a criminal offense and evidence of an alien's bad character or undesirability as a permanent legal resident. Id. 5 As the negative factors grow more serious, the alien must introduce additional off-setting favorable evidence, which may involve unusual or outstanding equities. Id. at 585. This heightened showing is required when an alien has been convicted of a serious drug offense involving the trafficking or sale of drugs. Id.; Bellido-Torres v. INS, 992 F.2d 127, 129 (7th Cir.1993). Even upon such a showing, the BIA may properly determine that negative factors outweigh unusual or outstanding equities. Guillen-Garcia v. INS, 999 F.2d 199, 204 (7th Cir.1993). 6 Trujillo first contends that the BIA erred in its balancing of the equities and the adverse factors in his case. Trujillo points to his years of lawful residence, his treatment for addiction while imprisoned, his children, and his close family ties to his parents and seven siblings. Although the BIA found his length of residence and family ties to be "unusual or outstanding equities" in his favor, it determined that these factors were outweighed by the serious nature of the crimes Trujillo committed and his lack of financial support of his children. In making this determination, the BIA properly balanced all relevant factors within the Marin framework. The BIA's decision was not irrational, did not depart from any established BIA policy, and did not rest upon an impermissible basis. Therefore, the BIA did not abuse its discretion in its balancing of the equities. 7 Trujillo next contends that the record contains sufficient evidence of rehabilitation which the BIA ignored in its balancing of equities. Rehabilitation is an important factor in the BIA's exercise of discretion when an applicant has a criminal record. Vergara-Molina v. INS, 956 F.2d 682, 684 (7th Cir.1992). There are two aspects to rehabilitation: (1) the restoration of an alien to a drug-free life, and (2) the restoration of the alien to a way of life where future criminal conduct is unlikely. Palacios-Torres v. INS, 995 F.2d 96, 99 (7th Cir.1993). In these areas, the BIA "necessarily makes a judgment call, involving an estimate or prediction of an individual's future conduct." Id. The BIA may consider evidence of the nature and seriousness of the crime, repeat offenses, an alien's remorse and admission of guilt, enrollment in a drug-treatment program, indicia that an alien is no longer addicted to drugs, and the credibility and candor of an alien in answering questions at the deportation hearing. Id. 8 We conclude that the BIA acted within its discretion in finding insufficient evidence of rehabilitation. The BIA considered Trujillo's denial that he intended to distribute over 400 grams of cocaine found in his home; his assertion that the police planted 11 grams of cocaine in his home after his first arrest; and his voluntary withdrawal from a prison drug rehabilitation program after two months. The BIA found significant approximately seven disciplinary citations received by Trujillo since his imprisonment for infractions of prison rules, including a citation for harboring drugs and drug paraphernalia in his cell. Trujillo explained that the drug was a sleeping pill which he forgot to throw away, but the BIA found that this explanation was incredible. This credibility finding is given substantial deference by a reviewing court. Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992). In these circumstances, the BIA could properly find that Trujillo had not been restored to a drug-free way of life, and that future criminal conduct by Trujillo was likely. 9 Trujillo's final argument is that the BIA failed to consider additional evidence offered by Trujillo on appeal, including an affidavit regarding alleged translation errors at the deportation hearing. The errors concerned Trujillo's method of financing his drug addiction, which allegedly implied that Trujillo was more deeply involved in criminal activity. Trujillo asserts that the affidavit regarding the translation errors demonstrated his rehabilitation. In this case, the BIA noted that it generally does not review evidence submitted to it for the first time on appeal. Matter of Soriano, 19 I. & N.Dec. 764, 766 (B.I.A.1988). Nevertheless, the BIA went on to consider the affidavit errors and the other additional evidence, and found them to be irrelevant to an analysis of Trujillo's equities and rehabilitation. Trujillo has not shown otherwise. See Henry v. INS, Nos. 91-2252, 92-1476, & 92-2801, slip. op. at 23 (7th Cir. Oct. 15, 1993) (Petitioners under 8 U.S.C. Sec. 1182(c) are entitled to consideration of their supplemental evidence by the BIA). 10 Trujillo's petition is DENIED, and the BIA's decision is AFFIRMED. After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record 1 Although 8 U.S.C. Sec. 1182(c) expressly applies only to aliens who are returning "to a lawful unrelinquished domicile of seven consecutive years," the INS and this court have interpreted the statute to apply also to deportable aliens who have not left the United States and who have met the seven year requirement. Variamparambil v. INS, 831 F.2d 1362, 1364 n. 1 (7th Cir.1987)	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00784-CR Mark Watson, Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 99-3532-1, HONORABLE KEVIN HENDERSON, JUDGE PRESIDING Mark Watson appeals from his conviction for possession of two ounces or less of usable marihuana. Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West Supp. 2002). After a jury found him guilty, the court sentenced him to one hundred eighty days’ confinement, probated, and a two thousand dollar fine. In one point of error, he contends that he received ineffective assistance of counsel at trial. We will affirm the conviction. Officer James Quinn, Cedar Park Police Department, noticed a broken license plate light on appellant’s pickup truck and signaled appellant to stop. Appellant continued driving on the shoulder for about ten blocks. After appellant stopped the truck, he got out of the vehicle and approached Quinn’s car. Quinn asked appellant to return to his truck. As Quinn approached appellant’s vehicle to issue a citation, he smelled marihuana on appellant and in the vehicle. He noticed that appellant had glassy, bloodshot, watery eyes, signs consistent with smoking marihuana. There was a passenger in the car. During the course of the stop, Officer Quinn found marihuana in the passenger’s shorts and on the hump in between the two seats of the pickup. Quinn read appellant his rights and asked appellant about the marihuana. Appellant stated that it was his, that he had given it to his passenger to hide in his shorts and admitted that they had been smoking a joint. Appellant complains that it was ineffective assistance for counsel to fail to object to his incriminating statements because without those statements, there was insufficient evidence to support a conviction for marihuana possession. To prevail in an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) that his counsel’s performance was deficient and (2) that the deficiency prejudiced his defense. Strickland v. Washington, 446 U.S. 668, 689 (1984); Hernandez v. State, 988 S.W.2d 53, 53 (Tex. Crim. App. 1986). In meeting the first prong of the test, the appellant must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance. Strickland, 446 U.S. at 689. He must identify the acts or omissions of counsel that are not the result of reasonable professional judgment. Id. at 690. He then must show, in light of all the circumstances, that the identified acts or omissions were outside the wide range of professionally competent assistance. Id. To meet the second prong of the test the defendant must show that there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The assessment of whether a defendant received ineffective assistance of counsel must be made according to the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Appellant bears the burden of proving by 2 a preponderance of the evidence that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal because it is rare that the record will be capable of providing a fair evaluation of the merits of the claim. See Thompson, 9 S.W.3d at 813; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).1 The record reveals that defense counsel did not object to the admission of appellant’s statements at trial. Rather, counsel called appellant as a witness and appellant tried to show that Quinn had misinterpreted appellant’s statements. Appellant did not deny there was marihuana in the car. He said that he noticed his passenger lighting a joint and told him that he, appellant, would not allow that behavior and the passenger should throw the joint out the window. Immediately after the passenger did so, he noticed the flashing lights behind him. His affirmative response to Quinn’s question at the scene was not intended to claim ownership of the marihuana, but of the truck because he mistakenly thought the officer was asking about the truck. Defense counsel’s failure to object to the admission of appellant’s incriminating statements appears, based on the record, to be a deliberate trial strategy. Inasmuch as appellant received a probated sentence, even in the face of previous convictions,2 we cannot say the strategy was unsuccessful. Further, in order to show ineffective assistance, appellant must meet Strickland’s second prong: that there is a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different. Strickland, 446 U.S. at 694. 1 In this case, although a motion for new trial was filed, it challenged the sufficiency of the evidence, not the adequacy of counsel’s assistance. No hearing on a motion for new trial was held. 2 His previous convictions were for driving while intoxicated. 3 In this case, the facts showed that appellant smelled of marihuana and had glassy, bloodshot, watery eyes. Marihuana was found on the floorboard hump of the truck in between the driver and passenger side, in plain view within the driver’s reach. Appellant owned the vehicle that he was driving. A jury could have inferred from his attempt to approach Quinn’s car that appellant had a reason to keep the officer away from the truck. All of these circumstances would have been sufficient to support a jury finding that appellant exercised care, control, and management of the contraband substance and knew it was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); see Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—Austin 1994, no pet.) (affirming conviction for marihuana possession with similar “affirmative links” between accused and contraband). We cannot say that the outcome would have been different had appellant’s statements at the scene been suppressed. Because appellant has not met his burden to show ineffective assistance, we overrule his only point of error and affirm the conviction. __________________________________________ David Puryear, Justice Before Chief Justice Aboussie, Justices B. A. Smith and Puryear Affirmed Filed: January 25, 2002 Do Not Publish 4	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 04-3893 ___________ Kroeplin Farms General Partnership, * * Appellee, * Appeal from the United States * District Court for the v. * District of South Dakota. * Heartland Crop Insurance, Inc., * * Appellant. * ___________ Submitted: September 15, 2005 Filed: December 6, 2005 ___________ Before MELLOY, BEAM, and BENTON, Circuit Judges. ___________ BENTON, Circuit Judge. The district court1 ruled that Kroeplin Farms General Partnership is entitled to the proceeds of a Multi-Peril Crop Insurance (MPCI) policy. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. 1 The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. I. On September 30, 2001, Bryan Robert Kroeplin received an MPCI policy for his 2002 winter-wheat crop from Heartland Crop Insurance, a private insurer reinsured by the Federal Crop Insurance Corporation (FCIC). The policy is a standard form, found in 7 C.F.R. § 457.8. In December, Bryan, his son Kody and his brother Doug formed Kroeplin Farms, a general partnership. Two months later, on February 11, 2002, Bryan withdrew from the partnership and executed a "Transfer of Right to Indemnity" on a form provided by Heartland's agent.2 According to the form, Bryan assigned his right to indemnity for his 2002 winter-wheat crop to Kroeplin Farms, indicating any check should be payable to the partnership. On March 25, 2002, Bryan executed a bill of sale transferring to Kroeplin Farms his interests in both the crops and the insurance. The United States sued Bryan and his wife on June 19, 2002, alleging a false claim in underreporting their 1999 sunflower crop. The parties entered a settlement agreement on July 8, 2002. Bryan and his wife did not admit guilt but agreed to a fine and voluntary debarment and disqualification from all FCIC programs, including MPCI policies "on all crops in which they have an interest for the 2002 crop year." The settlement agreement stated that Bryan and his wife understood that their names would appear on the FCIC debarment/disqualification list for the 2002 crop year only. 2 The form apparently was not submitted to, and approved by, Heartland until May 2002. On the form, however, February 11, 2002, was filled in as the effective date of transfer. Also, on March 25, 2002, Bryan and the partnership executed a bill of sale transferring Bryan's interests in both the crops and the insurance policy. Although this court will treat February 11 as the effective date of transfer, whether the transfer actually occurred in February, March or May is immaterial. -2- During this time, Kroeplin Farms filed a claim of loss with Heartland. On September 16, 2002, Heartland calculated the total loss as $205,680 and prepared a check for $185,364 (after subtracting the premium and fee). However, after reviewing the settlement agreement, Heartland determined that the policy was void and refused to send the check to Kroeplin Farms. The district court agreed that the contract was void and "never existed," but held that Heartland could not raise this defense because it had been notified of, and accepted, the assignment before the settlement agreement. The court invoked Restatement (Second) of Contracts § 336(2): "The right of an assignee is subject to any defense or claim of the obligor which accrues before the obligor receives notification of the assignment, but not to defenses or claims which accrue thereafter except as stated in this Section or as provided by statute." The district court granted summary judgment for Kroeplin Farms, ordering Heartland to pay the indemnity. II. A grant of summary judgment is reviewed de novo, using the same standard as applied by the district court. Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmovant, shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The proper construction of an insurance contract is an issue of law, and thus well suited for summary judgment. See Modern Equip. Co. v. Cont'l W. Ins. Co., 355 F.3d 1125, 1128 (8th Cir. 2004). The MPCI policy defines "void" as: "When the policy is considered not to have existed for a crop year as a result of concealment, fraud, or misrepresentation (see section 27)." Section 27 of the policy reads: -3- (a) If you have falsely or fraudulently concealed the fact that you are ineligible to receive benefits under the [Federal Crop Insurance] Act or if you or anyone assisting you has intentionally concealed or misrepresented any material fact relating to this policy: (1) This policy will be voided; .... Section 27 thus establishes two types of fraud that void a policy. As for the first "if" clause, when Bryan applied for and received his winter-wheat policy in September 2001, he did not conceal any facts about his eligibility under the Federal Crop Insurance Act (FCIA). As to the second clause, the government's concealment and misrepresentation charges do not relate in any way to Bryan's winter-wheat-crop policy – the charges involve only his 1999 sunflower crop. Therefore, his policy is not void under section 27, the linchpin of the definition of "void" in the policy. The settlement agreement, however, does address Bryan's policy. Part III, clause 6 of the settlement agreement states: Kroeplins voluntarily agree to a debarment and disqualification from all FCIC programs including obtaining federally reinsured multi-peril crop insurance policies on their behalf or on all crops in which they have an interest for the 2002 crop year. Kroeplins understand their names will appear on the FCIC debarment/disqualification list for the 2002 crop year only, effective from September 30, 2001, to September 30, 2002. Although Bryan argues that his ineligibility did not begin until July 8, 2002, citing 7 C.F.R. § 400.681(a)(3), he agreed to debarment and disqualification starting September 30, 2001. Bryan is subject to the settlement agreement he voluntarily consented to, even if it is broader than the regulations authorize. -4- His settlement agreement thus waives any contention that his ineligibility begins only after July 8. Under South Dakota law, a waiver occurs when "[o]ne in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the exercise of the right." Flugge v. Flugge, 2004 SD 76, ¶ 18, 681 N.W.2d 837, 842, quoting Action Mech., Inc. v. Deadwood Historic Pres. Comm'n, 2002 SD 121, ¶ 18, 652 N.W.2d 742, 749. By agreeing that his name appear on the debarment/disqualification list effective September 30, 2001, Bryan waived any right he might have to a different debarment/disqualification date under 7 C.F.R. § 400.681. Bryan's policy – if held by him at all relevant times – would be unenforceable because of his voluntary debarment and disqualification. Heartland argues that the policy is void from the beginning, and thus cannot be assigned, relying on the advice of the federal agency that administers the FCIA. The binding authority on the policy is not ad hoc advice, but the law and regulations on the FCIA. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). By the FCIA law, in construing FCIA contracts, state law applies with two exceptions: 1) when the contract provides state law does not apply; or 2) when state law conflicts with FCIC contract provisions. See 7 U.S.C. § 1506(l); see also Alliance Ins. Co. v. Wilson, 384 F.3d 547, 551 (8th Cir. 2004). The policy at issue only excludes state law to the extent that it conflicts with the policy provisions. See 7 C.F.R. § 457.8 (section 31 of the Common Crop Insurance Policy). In this case there is no conflict. Under South Dakota law, "a void contract is invalid or unlawful from its inception. It is a 'mere nullity, and incapable of confirmation or ratification.'" Nature's 10 Jewelers v. Gunderson, 2002 SD 80, ¶ 12, 648 N.W.2d 804, 807, quoting Black's Law Dictionary 1573 (6th ed. 1990). Heartland relies on Nature's 10 Jewelers for the proposition that the policy here is a void contract that is a nullity from -5- the beginning. Heartland omits that Nature's 10 Jewelers recognizes voidable contracts. A voidable contract is valid unless "legally voided at the option of one of the parties." Id.; see also Restatement (Second) of Contracts § 7 (1981). The policy here is a voidable contract to the extent that the government had the option to void it by disqualifying Bryan in accordance with law. By the governing regulations, a policy voided as a result of ineligibility is not considered a nullity from the beginning. 7 C.F.R. § 400.681(b) states that a policy becomes void "once the person has been determined to be ineligible." (emphasis added). Under Section 400.681(b), the policy here is not a void contract because the winter-wheat policy was not unlawful from its inception – there was no defect at the time of formation. Instead a policy is void once the person becomes ineligible. The issue becomes whether the MPCI policy was properly assigned in this case. When a contract right is assigned, the assignor's right to performance by the obligor is extinguished and the assignee acquires that right. See Restatement (Second) of Contracts § 317(1). "[T]he assignee stands in the same shoes as the assignor." In re Estate of Wurster, 409 N.W.2d 363, 366 (S.D. 1987) (Wuest, C.J., dissenting); see also Lee v. Sioux Falls Motor Co., 274 N.W. 614, 616 (S.D. 1937). An assignee can obtain no greater rights than the assignor had at the time of assignment. See Kobbeman v. Oleson, 1998 SD 20, ¶ 8, 574 N.W.2d 633, 636; Heinzman v. Howard, 348 N.W.2d 147, 148 (S.D. 1984), citing 77 Am. Jur. 2d Vendor and Purchaser § 389 (1975); Tripp v. Sieler, 161 N.W. 337, 340 (S.D. 1917). Thus, an assignee's right is subject to a defense that the contract was voidable or unenforceable before the assignment. See Restatement (Second) of Contracts § 336(1); see also Gilbert v. United Nat'l Bank, 436 N.W.2d 23, 25–26 (S.D. 1989), citing 6 Am. Jur. 2d Assignments § 102 (1963). As emphasized by the district court, however, an assignee is not subject to any defense by the obligor against the assignor that arises after notice of the assignment. See Restatement (Second) of Contracts § 336(2); see also Gilbert, 436 N.W.2d at 26 (explaining assignee is subject to defenses that could have -6- been asserted at time of assignment). Where there is an unconditional assignment, an assignee can recover on an assigned right against the obligor, but the assignor cannot. See Restatement (Second) of Contracts § 331 cmt. a; see also Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 825 (S.D. 1978) (holding assignee had right to sue in own name); Valmont Credit Corp. v. McIlravy, 344 N.W.2d 691 (S.D. 1984) (holding assignee of purchase security agreement was holder in due course and could bring action against obligor). Bryan executed a transfer of right to indemnity effective February 11, 2002. The transfer was made on a form provided by Heartland, which was mailed back to, and approved by, Heartland. This assigned to Kroeplin Farms Bryan's right to indemnity. See Restatement (Second) of Contracts § 317(2); see also Brown v. Powell, 2002 SD 75, ¶ 26, 648 N.W.2d 329, 335 (Gilbertson, J., dissenting); Bank of Toronto v. Lengkeek, 436 N.W.2d 271, 275 (S.D. 1989). The transfer of indemnity was an unconditional assignment, giving Kroeplin Farms the right to recover against Heartland. Any defense Heartland had against Bryan did not arise until July 8, 2002 – the date Bryan agreed to disqualification and debarment – because the original policy was entered into validly. Heartland's defense against Bryan arose after it had notice of the assignment, and, therefore, it cannot now assert that defense against Kroeplin Farms. Heartland repeatedly argues that this conclusion permits fraudulent schemes. First, an assignment itself may be voidable for fraud. See Restatement (Second) of Contracts §§ 331 cmt. a, 336; cf. Delany v. Delany, 402 N.W.2d 701, 706 n.1 (S.D. 1987), citing Meske v. Wenzel, 20 N.W.2d 654, 657 (Wis. 1945) (explaining Wisconsin court holding that assignee who was party to fraud could not affirmatively assert right against assignor). There is no evidence that Kroeplin Farms engaged in fraud against the government that would void the assignment. Instead, the only evidence is that Bryan sold his winter-wheat field and transferred his right to -7- indemnity to Kroeplin Farms, so that if he were to enter into any agreement with the government, it would not affect the farm. Second, the standard policy at issue here provides that a transfer of coverage is not effective "until approved by us [the insurance company providing insurance] in writing." See 7 C.F.R. 457.8 (section 28 of the Common Crop Insurance Policy). This right of approval permits insurance companies to determine the reality of the transfer requested and to prevent fraudulent schemes. III. The MPCI policy here is not void as a nullity but is voidable to the extent authorized by the law and regulations of the FCIA. Heartland knew of, and accepted, the transfer of indemnity to Kroeplin Farms before the July 8, 2002 settlement agreement. Moreover, there is no evidence of a fraudulent assignment. Heartland is liable to Kroeplin Farms because its claim against Bryan did not arise until after it had accepted the assignment. Accordingly, the judgment of the district court is affirmed. ______________________________ -8-	{ "pile_set_name": "FreeLaw" }
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHARLES EDWARD DAEDA, ) ) Appellant, ) ) v. ) Case No. 2D18-3183 ) RAYMOND ANTHONY DAEDA, ) ) Appellee. ) ) Opinion filed November 1, 2019. Appeal from the Circuit Court for Lee County; Elisabeth Adams, Judge. Charles Edward Daeda, pro se. Raymond Anthony Daeda, pro se. PER CURIAM. Affirmed. KHOUZAM, C.J., and VILLANTI and SLEET, JJ., Concur.	{ "pile_set_name": "FreeLaw" }
151 F.3d 116 Zuliken S. ROYCE, Appellantv.John E. HAHN, Warden, Appellee. No. 97-3266. United States Court of Appeals,Third Circuit. Aug. 5, 1998. Zuliken S. Royce, Pro Se, Raybrook, New York City. Bonnie R. Schlueter, Tina M. Oberdorf, Office of the United States Attorney, Pittsburgh, PA, for Appellee. Before: STAPLETON, ROTH, and WEIS, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. 1 After our original opinion in this case was filed, the government presented a petition for panel rehearing. We granted the petition, vacated the opinion, and now consider the appeal anew. 2 The issue in this case is whether mere possession of a firearm by a previously convicted felon is a "crime of violence" that triggers an obligation of federal prison authorities to notify local authorities upon an inmate's release. We answer that question in the negative and correspondingly hold that a Bureau of Prisons Program Statement to the contrary represents an incorrect interpretation of the relevant notification statute. 3 Petitioner Zuliken S. Royce was incarcerated in the federal correctional institution at McKean, Pennsylvania when he filed this habeas corpus petition. He had been convicted in the United States District Court for the Middle District of Florida on two counts--possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and unlawful possession of a machine gun in violation of 18 U.S.C. § 922(o)(1). Although there were two counts, only one gun was involved. Petitioner had previously been convicted in state court on three felony drug charges and one count of second degree attempted burglary. 4 According to the presentence investigation report for the current conviction, on February 10, 1993 Secret Service agents investigating a trail of counterfeit money contacted petitioner at his business location. Petitioner denied knowledge of counterfeiting activity and consented to a search of the premises. At that point, he announced that he had a "Mac 10" under his desk for protection. The agents retrieved an unloaded RPB Industries M10, 9 millimeter machine gun from under the desk. They found no ammunition on the premises. 5 Following his conviction and incarceration, prison authorities classified petitioner as having committed "crimes of violence" pursuant to a definition of that term contained in the Federal Bureau of Prisons' internal Program Statement No. 5162.02(7). As a result, he became subject to 18 U.S.C. § 4042(b), which requires the Bureau to notify local law enforcement authorities of the imminent release of inmates who had committed violent crimes and provide their names, criminal history, parole restrictions, and proposed residence. 6 Arguing that his offenses of conviction were not "crimes of violence," petitioner objected to this classification. After his appeals through the administrative process proved unsuccessful, petitioner filed this habeas corpus action in the United States District Court for the Western District of Pennsylvania. He alleged that the Bureau exceeded its authority in classifying his offenses as "crimes of violence" and in creating Program Statement 5162.02. Petitioner specifically asked the court to enter a declaratory judgment that he was "eligible for the non-application of 18 U.S.C. § 4042[b]."A magistrate judge recommended that the petition be denied for lack of subject matter jurisdiction. She reasoned that, under the traditional test for habeas corpus jurisdiction, petitioner failed to "make any colorable allegation that his underlying conviction is invalid or that he is otherwise being denied his freedom from unlawful incarceration." Despite the petition's specific request, the magistrate judge did not rule on the declaratory relief aspect. The district judge adopted the recommendation and dismissed the petition. I. 7 This court has jurisdiction to review the denial of a habeas petition under 28 U.S.C. § 1291 and our review is plenary. United States ex rel. Schiano v. Luther, 954 F.2d 910, 912 (3d Cir.1992). The pro se petition here challenges application of § 4042(b)'s notification requirement, but not the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 484-85, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Insofar as the district court found that it did not have subject matter jurisdiction under traditional 28 U.S.C. § 2241 analysis, the ruling was correct. 8 The label placed on a petition, however, is not determinative. As stated in Graham v. Broglin, 922 F.2d 379, 381-82 (7th Cir.1991), if a petition asks for habeas corpus relief when petitioner "should have brought a civil rights suit, all he has done is mislabel his suit, and either he should be given leave to plead over or the mislabeling should simply be ignored." See also Fierro v. Gomez, 77 F.3d 301, 305 (9th Cir.1996) (a court may construe a section 1983 complaint as a habeas petition and vice versa), vacated on other grounds, --- U.S. ----, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996). This admonition is especially weighty in pro se litigation. See United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"). 9 An inmate cannot avoid the exhaustion requirements that may be a prerequisite to a habeas corpus action by characterizing his suit as a civil rights complaint. Where exhaustion is not implicated, however, the case should not be dismissed until other legitimate avenues of relief are considered. Here, petitioner had already exhausted available administrative appeals and we conclude that his petition should have been construed as an action seeking a declaratory judgment under 28 U.S.C. §§ 1331 and 2201. 10 Rather than remanding for consideration as such by the district court, we will address the merits of the petition. We do so in the interest of judicial efficiency because there are no factual disputes, the issue presented is purely a question of law, and both parties have briefed the merits. See, e.g., Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d Cir.1986). Moreover, the issue is one frequently recurring that should be addressed at this time. II. 11 The notification provision, 18 U.S.C. § 4042(b), requires the Bureau of Prisons to notify local law enforcement officials of the release of a prisoner who was "convicted of a crime of violence (as defined in section 924(c)(3))."1 § 4042(b)(3)(B). In turn, 18 U.S.C. § 924(c)(3) defines a crime of violence as "an offense that is a felony and-- 12 (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or 13 (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 14 The firearm possession violations do not require proof of "use, attempted use, or threatened use" as an element of the crime. Thus, subsection (A) has no application to the circumstances of this case; only subsection (B) is relevant. See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.1993). We review the Bureau's interpretation of subsection (B) for consistency with the plain language of the statute and pertinent case law. Roussos v. Menifee, 122 F.3d 159, 163-64 (3d Cir.1997). 15 The term "crime of violence" is an important component of a number of statutes. In addition to the cross-reference contained in the notification statute, the "crime of violence" concept is relevant to: 16 (1) the United States Sentencing Guidelines, especially when determining career criminal status and its related sentence enhancement, U.S.S.G. § 4B1.1; 17 (2) 18 U.S.C. § 924(e)(1), which assigns, inter alia, a fifteen year mandatory minimum sentence to a felon with three prior convictions for violent felonies; and 18 (3) 18 U.S.C. § 3621(e)(2)(B), which by negative inference excludes inmates who committed violent offenses from eligibility for a sentence reduction following completion of a substance abuse treatment program. 19 Unfortunately, the courts and the Bureau have complicated matters by using varying definitions of "crime of violence" and related terms without exploring the possibility and desirability of a more uniform approach. 20 The convictions at issue here are limited to firearm possession. This Court has yet to discuss whether this violation is a crime of violence under the notification statute, although we have encountered the offense in other settings. The Bureau, in its Program Statement No. 5162.02(7), takes the position that violations of the firearm possession prohibitions are crimes of violence in all instances. We assess the validity of that approach by first examining related contexts where the terminology is relevant. 21 (1.) Sentencing Guidelines 22 The term "crime of violence" is defined in the Sentencing Guidelines. Because that formulation has been the subject of substantial litigation in the federal courts and is used most frequently, we first examine the term in the guidelines context. 23 Sentencing Guideline § 4B1.1 provides for enhanced terms of incarceration for those convicted of a "crime of violence." Such an offense is described in § 4B1.2(a) as a felony that (1) has as an element "the use, attempted use, or threatened use" of physical force or (2) is a "burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents 'a serious potential risk of physical injury to another.' " 24 The original commentary to § 4B1.2 created a conflict among various Courts of Appeals over the question of whether mere possession of a firearm by a felon was a crime of violence. See Stinson v. United States, 508 U.S. 36, 39 n. 1, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (citing United States v. Williams, 892 F.2d 296 (3d Cir.1989); United States v. Goodman, 914 F.2d 696 (5th Cir.1990); United States v. Alvarez, 914 F.2d 915 (7th Cir.1990); United States v. Cornelius, 931 F.2d 490 (8th Cir.1991); United States v. O'Neal, 937 F.2d 1369 (9th Cir.1990); and United States v. Walker, 930 F.2d 789 (10th Cir.1991)). In 1992, the United States Sentencing Commission amended the commentary to § 4B1.2 to clarify that " '[c]rime of violence' does not include the offense of unlawful possession of a firearm by a felon." See U.S.S.G. § 4B1.2 Application Note 1. 25 In Stinson, the Supreme Court confirmed the binding effect of this amendment and held that "[f]ederal courts may not use the felon in possession offense as the predicate crime of violence for purposes of imposing the career offender provisions of U.S.S.G. § 4B1.1...." 508 U.S. at 47, 113 S.Ct. 1913. Thus, in the sentencing guideline setting, an authoritative ruling holds that mere firearm possession by a convicted felon is not a crime of violence. See also United States v. Sahakian, 965 F.2d 740, 742 (9th Cir.1992); United States v. Johnson, 953 F.2d 110, 115 (4th Cir.1991). 26 (2.) Armed Career Criminal 27 Under 18 U.S.C. § 924(e), a mandatory minimum sentence must be imposed on a felon in possession of a firearm who has three previous convictions "for a violent felony." The statute defines "violent felony" as one that "has as an element use, attempted use, or threatened use of physical force" or is a burglary, arson, or extortion, involves use of explosives, "or otherwise involves conduct that presents serious potential risk of physical injury." § 924(e)(2)(B). This definition uses the identical pertinent language found in Sentencing Guideline § 4B1.2.2 28 In United States v. Doe, 960 F.2d 221 (1st Cir.1992), the Court considered whether conviction under § 922(g)(1) (possession of firearms by a felon) was a proper predicate offense for imposing the armed career criminal provision of § 924(e). Judge Breyer, writing for the Court, held that the offense was not a "violent felony" under the statute, and commented that "simple possession of a firearm does not fit easily within the literal language of the statute." Id. at 224. 29 Observing that an expansive reading of the language would encompass crimes not meant to be included, Doe reasoned that the term "violent felony" evoked a "tradition of crimes that involve the possibility of more closely related, active violence." Id. at 225. The Court also reviewed the commentary to U.S.S.G. § 4B1.2, remarking that "because uniform interpretation of similar language is in itself desirable, we believe we should give some legal weight to the Commission's determination" not to include the felon in possession offense as a crime of violence. Id. 30 Two other Courts of Appeals agree that U.S.S.G. § 4B1.2 and 18 U.S.C. § 924(e) should be read consistently with one another. In United States v. Garcia-Cruz, 978 F.2d 537, 542-43 (9th Cir.1992), and United States v. Oliver, 20 F.3d 415, 416 (11th Cir.1994) (per curiam), both Courts held, after examining Guidelines case law, that the felon in possession offense was not a violent felony under § 924(e). In Oliver, the court noted that the two expressions in 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.2 "are not conceptually distinguishable for purposes of the narrow question raised in this appeal." 20 F.3d at 417. Doe, Oliver, and cases that reach a similar conclusion persuasively explain why mere possession does not constitute a "crime of violence." 31 We note also that the relevant language in §§ 924(c)(3) and 924(e) differ only in minor detail. Section 924(c)(3)(B) speaks of a violation "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Section 924(e)(2)(B)(ii) refers to "conduct that presents a serious potential risk of physical injury to another." The Court of Appeals for the Ninth Circuit has concluded that possession of a firearm by a felon is not a violent crime under either subsection. Downey v. Crabtree, 100 F.3d 662, 667 (9th Cir.1996). We agree that the quoted variation in wording does not affect the classification of felon in possession offenses. 32 (3.) Substance Abuse Treatment Program 33 The sentencing benefits available under the substance abuse treatment program, created by the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, 108 Stat. 1796 (1994), also hinge upon the crime of violence concept. The statute, 18 U.S.C. § 3621(e)(2)(B), grants the Bureau of Prisons discretion to reduce the period of custody up to one year for any "prisoner convicted of a nonviolent offense" who successfully completes a substance abuse treatment program. 34 The statute does not define "nonviolent offense." The Bureau of Prisons originally adopted a regulation that disqualified inmates whose "current offense is determined to be a crime of violence as defined in 18 U.S.C. § 924(c)(3)." 28 C.F.R. § 550.58 (1996). In addition, the Bureau adopted Program Statement No. 5162.02 (as amended April 23, 1996), which excluded from participation those inmates convicted of firearm violations under specified subsections of 18 U.S.C. § 922, including mere possession. In a number of cases, inmates currently serving terms for nonviolent offenses (including the felon-in-possession offense) contested their classification and argued that under 29 C.F.R. § 550.58 and Program Statement No. 5162.02, they were improperly being denied earned sentence reductions. 35 The Bureau soon realized that its policy of denying sentence reduction based on the questionable classification of certain violations as crimes of violence was generating conflicting decisions from the courts. In particular, numerous cases addressed the Bureau's classification of the felon in possession of a firearm offense. 36 To resolve the problem, the Bureau amended its regulation in October 1997 to delete the disqualification based on convictions for "a crime of violence as defined in 18 U.S.C. § 924(c)(3)." 28 C.F.R. § 550.58. See also 62 Fed.Reg. 53690 (Oct. 15, 1997). In relevant part, the current regulation now provides: 37 (a) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release ... 38 (vi) [i]nmates whose current offense is a felony ... (B) [t]hat "involved the carrying, possession, or use of a firearm ..." 39 28 C.F.R. § 550.58 (emphasis added). Thus, the current regulation no longer classifies the felon in possession of a firearm offense as a "crime of violence." This new discretionary approach has not yet been incorporated into Program Statement 5162.02, but, by deleting the reference to "crime of violence," the Bureau effectively made that term irrelevant at least in the context of the drug abuse treatment statute.3 Cases analyzing the original regulation are now mostly of historical interest. A brief review of those decisions, however, is in order.4 40 In the first of these cases, Downey v. Crabtree, 100 F.3d 662 (9th Cir.1996), the Court held that the Bureau was not permitted to use a sentence enhancement imposed under the Guidelines to transform what was otherwise a nonviolent felony (possession of 100 grams of methamphetamine) into a crime of violence.5 41 Downey explicitly rejected the government's argument "that Congress' omission of a definition for 'nonviolent offense' in § 3621(e)(2)(B) suggests an intention to entrust defining that term entirely to the Bureau of Prisons' discretion." Id. at 666. While the Bureau properly used its rulemaking authority to promulgate a regulation defining "nonviolent felony" as the converse of the § 924(c)(3) crime of violence definition, it could not reinterpret the term contrary to the established authority built up around the § 924(c)(3) definition. See id. at 668. 42 A subsequent opinion from the same Court reinforced this approach. Davis v. Crabtree, 109 F.3d 566 (9th Cir.1997), held that the crime of conviction--felon in possession of a firearm--was a nonviolent offense and that the Bureau's characterization to the contrary could not be used to deny a sentence reduction. Id. at 567. 43 Crabtree v. Jacks, 114 F.3d 983 (9th Cir.1997), sustained the Bureau's decision to deny a sentence reduction, but presented substantially different facts than either Downey or Davis. In Jacks, although their current convictions (including a felon in possession offense) were nonviolent, the inmates had previously been convicted of concededly violent crimes. Id. at 984. In these circumstances, the Court held that the Bureau's interpretation which encompassed previous convictions was sustainable because the substance abuse statute did not specify whether "nonviolent felony" was limited only to current convictions. Id. at 986. 44 In Venegas v. Henman, 126 F.3d 760 (5th Cir.1997), the Court of Appeals for the Fifth Circuit upheld the Bureau's denial of a sentence reduction to an inmate whose current conviction included the crimes of felon in possession of a firearm and possession with intent to distribute marijuana. The Court concluded that § 3621(e) grants the Bureau generalized discretion to determine when and how to reduce a sentence. Id. at 762. In particular, the court refused to interpret "crime of violence" under § 924(c)(3) in light of the guidelines because sentence reduction and sentencing serve different ends. Id. at 763-64. In contrast to Venegas, we have noted that an effort to determine whether the felon in possession of a firearm offense constitutes a crime of violence would be "influenced by the career offender provisions of the Sentencing Guidelines." Roussos, 122 F.3d at 163 n. 5. 45 Venegas found support in Sesler v. Pitzer, 110 F.3d 569 (8th Cir.1997), but that case spoke only to use of a firearm, or in dicta, to possession of a firearm during a predicate offense. Id. at 571-72. Sesler does not preclude a finding that mere possession offenses are nonviolent. Moreover, a few months later, the Eighth Circuit took issue with Venegas stating, "[h]aving adopted § 924(c)(3) as its definitional standard in its [original] regulation, the BOP is bound by the definition accorded it in the interpretative decisional case law." Martin v. Gerlinski, 133 F.3d 1076, 1080 (8th Cir.1998). 46 We have twice considered the meaning of "nonviolent felony" in the substance abuse program context. In Stiver v. Meko, 130 F.3d 574 (3d Cir.1997), an inmate with previous convictions for robbery and aggravated assault challenged his ineligibility for reduction of his current sentence for possession of heroin with intent to distribute. Both of his previous convictions, however, clearly qualified as crimes of violence under § 924(c)(3), the guidelines and the Bureau's regulation. The panel concluded in that situation, as did Jacks, that the Bureau could look to the violent nature of previous convictions, rather than limiting itself to consideration of the current offense only. Id. at 577. 47 In the other case, Roussos, an inmate was convicted of conspiracy to distribute narcotics. 122 F.3d at 160. The sentencing court enhanced the period of incarceration pursuant to U.S.S.G. § 2D1.1 because guns were found in the inmate's house some distance from the arrest site. Id. In light of the sentence enhancement, the Bureau, as it did in Downey, denied eligibility for a sentence reduction following the inmate's successful completion of the substance abuse program. Id. 48 Roussos held that the offense of conspiracy to distribute narcotics was not a crime of violence and that the provision of the Program Statement declaring ineligible all inmates with a sentencing enhancement for firearms possession was unenforceable. Id. at 164. By focusing on enhancement instead of the offense, the Bureau "converted a nonviolent crime into a violent one by means of a Program Statement that is inconsistent with the language of the statute, and its own regulations." Id. at 163. We were persuaded by the reasoning in Downey that the Bureau's interpretation of § 924(c)(3) ran counter to the Sentencing Commission's formulation of a 'nonviolent offense' and corresponding judicial endorsement. Id. at 162-63. 49 Stiver was careful to distinguish Roussos. Traditionally, the Bureau has been given substantial discretion in administering rehabilitation programs and the substance abuse program falls within that category. To the extent, therefore, that Stiver permits the Bureau to use prior convictions as a factor in determining program eligibility, it is consistent with that practice. In contrast, the notification statute does not serve a rehabilitative purpose. Thus, we are not constrained by Stiver and its discussion of the Bureau's discretion under the substance abuse program. III. 50 It is against this rather complex background that we come to the issue posed in the case before us--whether a current conviction for possession of firearms by a felon is a "crime of violence" within the scope of the notification procedures of 18 U.S.C. § 4042(b). Necessarily, we address whether Program Statement No. 5162.02(7) contains a correct interpretation of the statutory crime of violence definition as it has evolved in the federal courts. 51 Section (7) of Program Statement No. 5162.02 provides: "Criminal Offenses That Are Crimes of Violence In All Cases. Any conviction for an offense listed below should be categorized as a 'crime of violence.' a. Title 18, United States Code ... § 922 ... (g), (o) ... (firearms violations)." The definition section of Program Statement No. 5110.11, which covers "Notification of Release to State/Local Law Enforcement," in turn instructs that "clarifying instructions to define a 'crime of violence' are provided in the Program Statement [No. 5162.02]." 52 Unlike the substance abuse provision, which failed to define "nonviolent offense" and thus allowed a regulation to fill the gap, the notification statute does not leave interpretation to the Bureau. Rather, § 4042(b)(3)(B) refers to a specific provision defining of "crime of violence"--that contained in § 924(c)(3). Such an explicit reference to a statutory definition demonstrates a Congressional intent to forestall interpretation of the term by an administrative agency and acts as a limitation on the agency's authority. See generally Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 827 (1st Cir.1992) (incorporation by reference to another statute brings the statutory language and relevant case law into the incorporating statute). 53 The citation to § 924(c)(3) is unlike other directions that appear in the notification statute. For example, § 4042(b) requires the Bureau to advise local authorities. Presumably, the method of notification is left to the agency's discretion, e.g., mail, fax, hand-delivery, etc. Such flexibility in the means to be employed adds significance to the fact that Congress did not leave the crime of violence definition similarly open-ended. 54 Some weight is also due to the state of the law at the time Congress enacted § 4042(b). See Greenwood Trust Co., 971 F.2d at 827. Stinson, Doe, Johnson, Sahakian and Garcia-Cruz constituted a formidable body of authority construing "crime of violence" and we may assume that the lawmakers were aware of these precedents. Thus, the Bureau is bound not only by the language of the statutory definition, but also by its judicial interpretations. Id. See also Dutton v. Wolpoff and Abramson, 5 F.3d 649, 655 (3d Cir.1993). 55 Unlike the situation in Stiver and Jacks, this case does not implicate a duly promulgated regulation that purports to establish the agency's statutory interpretation of an otherwise undefined term. Nor do we owe the Program Statement any deference. The notification statute and the Program Statement specifically refer to a provision of the Criminal Code, 18 U.S.C. § 924(c)(3), an area in which the Bureau has no special competence. See U.S. Dep't of the Navy v. FLRA, 840 F.2d 1131, 1134 (3d Cir.1988) ("no deference is owed an agency's interpretation of a general statute."). This case is thus unlike Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995), where the Court allowed "some" deference to a Program Statement interpreting a statute the Bureau was charged with administering. 56 Although we have not previously addressed application of the "crime of violence" terminology to the notification provision, we have encountered the phrase in other contexts. In United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989), a pre-amendment guidelines case, we observed that "possessing a gun while firing it ... is a crime of violence; possession without firing the weapon is not." Whatever doubt may have existed following the guidelines amendment as to the authority of this passing remark in Williams6 was removed by United States v. Joshua, 976 F.2d 844 (3d Cir.1992). In Joshua, where the indictment charged defendant with possession of a firearm and ammunition, we invoked the terminology of § 924(e) and the guideline commentary when we stated, "[t]here is no conduct alleged that posed 'a serious potential risk of physical injury to another.' " Id. at 856. Accordingly, there was no 'crime of violence' upon which to predicate application of the Career Offender Act. 57 As we intimated in Roussos, interpretation of "crime of violence" under the Sentencing Guidelines should bear upon the meaning of the term in other settings as well. 122 F.3d at 163 n. 5; see also Impounded (Juvenile R.G.), 117 F.3d 730, 738 n. 13 (3d Cir.1997). As the Doe Court remarked, there is much to be said for attributing the same meaning to the same or related words. See 960 F.2d at 225. 58 Our reading of the statutory language and the thoughtful opinions of other Courts of Appeals dissuades us from fracturing the meaning of § 924(c)(3)'s crime of violence definition. We reach that determination despite the Bureau's argument that it should be permitted to vary interpretation of the definition because its aims embrace different objectives than those of a sentencing judge. 59 Section 4042(b) requires dissemination of information about prisoners released after serving terms for offenses that Congress and the courts recognize as crimes of violence--those which traditionally "involve[ ] the possibility of more closely related, active violence." United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992). Nothing to the contrary appears in the provision's legislative history. In short, the Program Statement is not in accord with the statutory provisions. 60 We hold, therefore, that possession of a firearm under 18 U.S.C. § 922(g) is not a crime of violence within the terms of 18 U.S.C. § 4042(b), and that Program Statement No. 5162.02(7) is an impermissible interpretation of 18 U.S.C. § 924(c)(3). 61 In its petition for panel rehearing, the government accepts our reasoning with respect to § (g). However, it contends that offenses under 18 U.S.C. § 922(o) (unauthorized possession of a machine gun) are crimes of violence. In support of its position, the government cites United States v. Fortes, 141 F.3d 1, 7 (1st Cir.1998) (possession of a sawed-off shotgun is violent felony under Armed Career Criminal Act); United States v. Hayes, 7 F.3d 144, 145 (9th Cir.1993) (possession of unregistered sawed-off shotgun is crime of violence under career offender guideline); United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir.1991) (possession of unregistered sawed-off shotgun is a crime of violence for purposes of sentence enhancement); United States v. Huffhines, 967 F.2d 314, 320-21 (9th Cir.1992) (conviction for possession of silencer attached to a loaded gun qualifies as prior crime of violence for sentence enhancement). 62 We will not reach the government's argument on the merits because it has been waived. With commendable candor, the petition for panel rehearing concedes that the government "did not fully brief the issue on the merits." Indeed, the brief in this Court did not mention the § 922(o) issue at any point, nor did it cite any one of the cases now listed in the petition for panel rehearing. Moreover, we have carefully searched the district court record and find no reference to the argument the government now advances. 63 As we have held on numerous occasions, we will not consider on appeal issues which were not presented to the district court. See e.g., Brenner v. Local 514, United Brotherhood of Carpenters, 927 F.2d 1283, 1298 (3d Cir.1991) (failure to brief an issue in court of appeals or raise it in the district court constitutes a waiver of the argument); see also United States v. Martinez, 96 F.3d 473, 475 (11th Cir.1996) (per curiam) (issues or arguments raised for the first time on petition for rehearing will not be considered); Stephens v. Arrow Lumber Co., 354 F.2d 732, 734 (9th Cir.1966) (citing Partenweederei MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1962) ("It is sound policy to require that all claims be presented to the trial court, and not raised for the first time on appeal, nor, a fortiori, as herein, in a petition for rehearing on appeal")). It follows that we will not review matters that were not even discussed in the briefs filed in this Court. Thus, for the purposes of this appeal we determine that the violation of 18 U.S.C. § 922(o) is not a crime of violence as to petitioner because the government has waived the issue. 64 Accordingly, the judgment of the district court will be reversed. The Board may not subject petitioner to the notification requirements because § 4042(b)(3)(B) does not justify classification of his current offenses as crimes of violence. We remand to the district court with directions that it remand to the Bureau of Prisons for reclassification of petitioner. 1 8 U.S.C. § 4042 provides in pertinent part: (b) "Notice of release of prisoners.--(1) At least 5 days prior to the date on which on a prisoner described in paragraph (3) is to be released on supervised release, ... written notice of the release ... shall be provided to the chief law enforcement officer of the State and of the local jurisdiction in which the prisoner will reside. Notice prior to release shall be provided by the Director of the Bureau of Prisons.... The notice requirements under this subsection do not apply in relation to a prisoner being protected under chapter 224. (2) A notice under paragraph (1) shall disclose-- (A) the prisoner's name; (B) the prisoner's criminal history, including a description of the offense of which the prisoner was convicted; and (C) any restrictions on conduct or other conditions to the release of the prisoner that are imposed by law, the sentencing court, or the Bureau of Prisons or any other Federal agency. (3) A prisoner is described in this paragraph if the prisoner was convicted of-- (A) a drug trafficking crime, as that term is defined in section 924(c)(2); or (B) a crime of violence (as defined in § 924(c)(3)). 2 Guideline § 4B1.2 speaks of "burglary of a dwelling," whereas section 924(e)(2)(B)(ii) designates only "burglary." 3 The notification statute, in contrast, contains an explicit reference to "crime of violence." Thus, the Program Statement still includes that classification 4 Several district courts within this Circuit had concluded that a felon in possession offense was a crime of violence justifying a denial of sentence reduction. Those opinions, however, preceded the change in the Bureau's regulations and of course would not be binding on this court. See Piccolo v. Lansing, 939 F.Supp. 319 (D.N.J.1996); Paydon v. Hawk, 960 F.Supp. 867 (D.N.J.1997); Snisky v. Pugh, 974 F.Supp. 817 (M.D.Pa.1997) 5 Section 9 instructed Bureau officials to examine the "Specific Offense Characteristics" noted in the presentence investigation report that aid the district court in applying the guidelines. As noted in Downey, the Bureau categorically denied early release credit for inmates convicted under 18 U.S.C. § 841(a) if they also received a sentence enhancement for firearm possession. 100 F.3d at 665 6 Stinson overruled the aspect of Williams that held that the felon in possession offense could be a crime of violence under the Guidelines in some circumstances. See Stinson, 508 U.S. at 39, 113 S.Ct. 1913; see also Williams, 892 F.2d at 304	{ "pile_set_name": "FreeLaw" }
958 F.2d 836 22 Fed.R.Serv.3d 493 COSTELLO, PORTER, HILL, HEISTERKAMP & BUSHNELL, a SouthDakota Partnership, Appellee,v.PROVIDERS FIDELITY LIFE INSURANCE COMPANY, a PennsylvaniaCorporation, Appellant.COSTELLO, PORTER, HILL, HEISTERKAMP & BUSHNELL, a SouthDakota Partnership, Appellee,v.PROVIDERS FIDELITY LIFE INSURANCE COMPANY, a PennsylvaniaCorporation, Appellant. Nos. 91-1435, 91-2295. United States Court of Appeals,Eighth Circuit. Submitted Oct. 18, 1991.Decided March 11, 1992.Rehearing and Rehearing En BancDenied April 23, 1992. Franklin Jay Wallahan, Rapid City, S.D., argued, for appellant. Thomas E. Simmonhs, Rapid City, S.D., argued (Mark F. Marshall, on the brief), for appellee. Before LAY,* Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge. LAY, Chief Judge. 1 These appeals involve whether summary judgment was properly entered for Costello, Porter, Hill, Heisterkamp & Bushnell (Costello), a law firm, on an account stated for attorney fees. Costello brought suit against Providers Fidelity Life Insurance Company (Providers) to collect legal fees arising from Costello's defense of Providers in an action which resulted in a thirteen million dollar judgment against Providers. In its answer, Providers stated that there was no understanding or agreement with regard to the alleged indebtedness and that the legal services rendered by the law firm were of "no value." The answer also stated that the plaintiff may well have been guilty of legal malpractice.1 The answer pled failure of consideration or, in the alternative, that the services performed were not correctly valued at the billed rate. 2 Costello served interrogatories and requests for admissions of fact on Providers. Providers timely responded. Providers then served interrogatories on the plaintiff. Costello promptly sought a protective order from answering the interrogatories and simultaneously filed a motion for summary judgment against Providers. Providers then noticed the taking of depositions of the Costello attorneys who had performed the services for Providers in the underlying case and served them with subpoenas duces tecum. Counsel for Providers also filed an affidavit for continuance of a hearing on plaintiff's motion for summary judgment until a reasonable time could pass and defendant could prepare a supporting brief. Costello again received a protective order and asked for an expedited hearing on the summary judgment. The day before the depositions were to be taken, the trial court issued a stay order and scheduled a hearing the next day on all pending motions. At the hearing, the trial court granted Costello's motion for summary judgment on the grounds that there existed no genuine issue of material fact and that the moving party was entitled to a summary judgment as a matter of law. We reverse. No. 91-1435 3 The trial court prematurely granted summary judgment. The trial court found that the proposed discovery went to plaintiff's possible counterclaim on the malpractice claim and was not directed at the plaintiff's complaint. Such a literal interpretation places form over substance.2 Although one might reasonably interpret defendant's request for discovery to be so limited, we find that the affidavit provided by the president of Providers in which he asserted that the services rendered by Costello were of "no value," although conclusory in form, sufficiently notified the court and the parties that defendant's discovery was directed to the issue of value.3 4 Plaintiff's failure to respond to defendant's initial request for discovery also militates against granting summary judgment on the issue of reasonable value. Providers asserts in its defense to Costello's complaint that the legal services it provided had no value. Providers must adduce evidence to support its assertion in order for it to defeat Costello's summary judgment motion. See J.V. Edeskuty & Assoc. v. Jacksonville Kraft Paper Co., 702 F.Supp. 741 (D.Minn.1988) (absent a showing that service or work is incompetent or unprofessional, recovery on an account stated is not precluded and summary judgment may be awarded). The instant case presents a situation in which the information needed by defendant to respond to plaintiff's summary judgment motion is likely to be in the sole possession of the plaintiff. As this court has pointed out, the "[r]elative availability of evidence to the parties is a circumstance to be considered in determining what should be required for making a submissible case." Spencer v. Kroger, 941 F.2d 699, 704 (8th Cir.1991) (quoting Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo.1989)). Providers' defense against Costello's claim of value on the stated account necessarily rises and falls on what its discovery will disclose, to wit, whether the plaintiff was guilty of legal malpractice and its services of no value. Although we appreciate that summary judgment can be an effective device to protect parties from burdensome discovery, it is not fair to tie the only hand a party has to defend itself. See Spencer v. Kroger, 941 F.2d 699 (8th Cir.1991) (plaintiff successfully resisted summary judgment claiming, among other things, that previously filed discovery requests remained unanswered, and that plaintiff requested a continuance to complete discovery); Schering Corp. v. Home Ins. Co., 712 F.2d 4, 10 (2d Cir.1983) (summary judgment should not be granted while opposing party timely seeks discovery of potentially favorable information). The rule is clearly set forth in Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986): "[T]he [non-movant] must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the [movant] as long as the [non-movant] has had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514. The Supreme Court has been careful to state that the rules regarding the proper opposition to a summary judgment motion apply only after adequate time for discovery has been allowed. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment is inappropriate until Providers has had an adequate opportunity to conduct discovery. If, after discovery has been completed, sufficient facts cannot be adduced to support a genuine dispute concerning a fact material to plaintiff's claim, then the court may once again entertain Costello's motion for summary judgment. 5 Providers sought and was denied leave to amend its pleadings by introducing a counterclaim, which it alleges to be compulsory under Federal Rule of Civil Procedure 13(a). The counterclaim would have asserted that plaintiff is liable to defendant for legal malpractice in performance of its services. Under Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely given when justice so requires." In view of the liberality of rules relating to the amendment of pleadings under Federal Rule of Civil Procedure 15(a), and in view of our remand for further discovery before ruling on the summary judgment, we believe it would be unduly prejudicial not to allow the defendant to amend its answer to include its counterclaim. Defendant should be given the opportunity to test its claims on the merits. Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir.1979). "Only limited circumstances justify a district court's refusal to grant leave to amend pleadings: Undue delay, bad faith on the part of the moving party, futility of the amendment or unfair prejudice to the opposing party." Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir.1987) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). None of those circumstances is present here. The rules of amendment contemplated by rule 15(a) should apply here, where the claim to be added by amendment is likely a compulsory counterclaim and denial of amendment would work an injustice.4 6 As indicated earlier, Providers' proposed counterclaim is directly related to the same nucleus of operative facts growing out of the services upon which the plaintiff's claim is based. Further discovery will demonstrate whether there exists a genuine issue of fact as to the proffered defense to the claim stated, to wit, failure of consideration by reason of the alleged malpractice of plaintiff's counsel. If there exists no genuine issue of material fact as to the alleged malpractice, defendant acknowledges it may face rule 11 sanctions as well as encounter a final entry of summary judgment in favor of plaintiff. Permitting Providers to amend its answer to assert a compulsory counterclaim does not prejudice plaintiff's motion, whereas denying Providers leave to amend to assert a compulsory counterclaim and an opportunity to conduct discovery could well be prejudicial to the defendant. Thus, on remand, we hold that Providers should be allowed to move to amend its pleadings. No. 91-2295 7 After entry of summary judgment, Providers filed a motion pursuant to Federal Rule of Civil Procedure 60(b) in the district court seeking to vacate the summary judgment and to allow Providers' oral motion to amend its answer by filing its counterclaim.5 The district court denied the motion. After entry of summary judgment for Costello, the defendant immediately filed its notice of appeal on the summary judgment. Providers also filed a separate appeal on the rule 60(b) motion. We deny Providers' 60(b) motion and find no abuse of discretion by the trial court which, in its ruling denying the 60(b) motion, acknowledged the pendency of the defendant's appeal of the grant of summary judgment. Providers' 60(b) motion has essentially duplicated issues raised and briefs submitted in the original appeal. We find the filing of the 60(b) motion and the appeal therefrom to be frivolous. We therefore award sanctions against Providers and require it to pay $2,500 plus costs to plaintiff's attorneys for attorney fees necessitated by Providers' 60(b) appeal. Conclusion 8 Judgment reversed and remanded under No. 91-1435 in accord with this opinion. Costs awarded to defendant. 9 Judgment affirmed under No. 91-2295; attorney fees and costs awarded to plaintiff. * The HONORABLE DONALD P. LAY was Chief Judge of the United States Court of Appeals for the Eighth Circuit at the time this case was submitted and took senior status on January 7, 1992, before the opinion was filed 1 The answer did not comply with the federal rules of civil procedure that pleadings be "simple, concise, and direct." See Fed.R.Civ.P. 8(e)(1). Providers' answer ineptly stated that it did not contain a counterclaim but that a reasonable inquiry was underway and that a motion for leave to amend to include a counterclaim for negligence or malpractice might be made upon completion of that inquiry 2 In his affidavit for continuance for discovery, counsel for Providers alleged: That your affiant has personally conducted an investigation into the facts surrounding the performance of services by the plaintiff to the defendant in the underlying action of "Holzer v. Providers Fidelity Life Insurance Company," and has concluded that the services rendered by the plaintiff for which payment is sought by plaintiff's Complaint herein were of no value in that they were negligently rendered and that said negligence proximately caused or contributed to causing the adverse verdict against the Defendant Providers in the "Holzer" action; however, your affiant is unable to act as a lawyer for the defendant and a witness for the defendant and therefore your affiant intends to engage in discovery in this action through the use of interrogatories and the taking of depositions, so as to prove the lack of value of plaintiff's services through sworn answers to interrogatories, sworn deposition testimony and the employment of an outside expert or expert witnesses. Affidavit of Franklin J. Wallahan p VI. This affidavit on its face sufficiently complies with Federal Rule of Civil Procedure 56(f). A rule 56(f) motion need only show "how additional discovery would preclude summary judgment and why a party cannot immediately provide specific facts demonstrating a genuine issue of material fact." See Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 524 (9th Cir.1989). 3 In his affidavit in support of Providers' rule 56(f) motion, Harry Dozer, president of Providers, stated that III. ... [P]laintiff's billings, mentioned in plaintiff's Complaint herein, have not been paid because I, as president of Providers, do not believe the services rendered have any value because ... IV. ... I requested Attorneys Bushnell and Meyers to call certain witnesses to the stand ... [and] said attorneys ignored my request and neither produced nor attempted to produce such countervailing testimony. Additionally, during the trial Holzer [plaintiff in the underlying case] presented testimony with regard to the finances and net worth of Providers, which testimony I advised said attorneys was incorrect; I requested said attorneys to call me or other knowledgeable persons to the stand during Providers' case to counteract such testimony, but the attorneys failed to do so. That I believe the foregoing actions of [Costello] in [the Holzer case] caused or contributed to causing the adverse verdict against Providers, or the substantial size thereof, and that the services rendered by plaintiff to Providers which are the subject of this pending lawsuit had and have no value. V. On behalf of Providers, I have retained [counsel] to not only defend the claim against Providers ... but also to investigate a possible legal malpractice counterclaim against plaintiff. VI. Without waiving any attorney-client privilege ... and for the purposes of Providers' Motion for Continuance Under Rule 56(f) only, I have been advised by [counsel] that under Rule 11 of the Federal Rules of Civil Procedure a [counterclaim of malpractice] may be properly made only after a reasonable inquiry and satisfaction that the claim is well-grounded in fact; he has also informed me that a meritorious defense exists against the plaintiff's claim for "value" of the services rendered, and that a meritorious legal malpractice action against plaintiff may also exist, but that (under Rule 11) before the legal malpractice action may properly be pleaded as a counterclaim, discovery, through reasonable inquiries in interrogatories and depositions ought to be made and answers thereto ought to be obtained. 4 A compulsory counterclaim is one arising "out of the same transaction or occurrence that is the subject matter of the opposing party's claim." Fed.R.Civ.P. 13(a). The phrase "transaction or occurrence" has been given a broad interpretation and may include a series of occurrences, depending on their logical relationship. See Moore v. New York Cotton Exch., 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). Obviously, a relevant relationship exists between the services billed by Costello and any claim Providers would assert that those services were negligently provided 5 This court refused to remand the original appeal to allow plaintiff to present the motion to the trial court as part of the original case so that it could be made part of the original appeal	{ "pile_set_name": "FreeLaw" }
958 So.2d 303 (2006) Dr. Rita W. PATTON and Frank Kay Psychiatric Clinic v. Marty THOMPSON, administrator of the estate of Peggy Sue Ellis, deceased. No. 1031809. Supreme Court of Alabama. November 9, 2006. 304 Randal H. Sellers and Joseph L. Reese, Jr., of Starnes & Atchison, LLP, Birmingham, for appellants. Kenneth E. Riley of Farris, Riley & Pitt, L.L.P., Birmingham, for appellee. BOLIN, Justice. Dr. Rita W. Patton Psychiatric Clinic, the permission to appeal from Patton and the Clinic's and her employer, the Frank Kay defendants below, were granted the trial court's order denying Dr. "Rule 50(b)[, Ala. R. Civ. P.,] Renewed Motion for Judgment as a Matter of Law, or, Alternatively Styled, Motion for a Summary Judgment." See Rule 5, Ala. R.App. P. The trial court certified the following controlling question of law: "The controlling question of law is the degree of proof necessary to establish the essential element of proximate causation in a medical malpractice/wrongful death action against a psychiatrist for the suicide of that psychiatrist's patient and whether the plaintiff in this case has met that requisite degree of proof." Factual Background and Procedural History Peggy Sue Ellis suffered from and had been treated for a serious psychiatric illness for approximately 30 years when she was admitted to Baptist Medical Center Montclair (hereinafter "BMCM") on November 11, 1999. She had previously been hospitalized for management of her psychiatric illness, and she had a history of suicide attempts. Before her November 11, 1999, admission, Ellis had been admitted three times to BMCM in 1999 for management of her psychiatric illness. Dr. Patton was Ellis's physician during all of her admissions in 1999. Ellis was admitted to BMCM on November 11, 1999, following a suicide attempt. Dr. Patton prescribed Seroquel, a psychotropic agent used to treat schizophrenia. Ellis was placed on a suicide watch in the hospital; the watch continued during her hospital stay. Her condition waxed and waned during her stay. Her condition regressed from November 18 to November 19, and the dosage of her medication was increased. On November 22, 1999, when Ellis was asked whether she would hurt herself, she replied "I hope not." That same day, Ellis stated that she was scared and worried, and she showed signs of paranoia and unreasonable fears regarding her family. She also stated that she was anxious about being discharged the next day. Ellis was discharged on November 23, 1999, with a discharge plan formulated by Dr. Patton. The plan included: (1) a follow-up appointment with Ellis's therapist at the Eastside Mental Health Center for the next morning; (2) arrangements for daily visits by a home-health psychiatric 305 nurse to monitor Ellis's mental state and to monitor compliance with the prescribed medication; and (3) help from Ellis's cousin in monitoring compliance with the prescribed medication. On November 24, 1999, Ellis went to the Eastside Mental Health Center, where she was evaluated by her therapist. The therapist noted that Ellis had been unable to fill her prescription for Seroquel and that she was confused about her medications, obsessed with psychotic thoughts, and frightened and that she had an "inappropriate and blunted affect." Dr. Patton was unaware that Ellis had not been able to fill her prescription. On November 26, 1999, Ellis was found dead in her apartment of a drug overdose. The coroner determined that the manner of death was suicide. At the time of her death, Ellis was 53 years old. On November 19, 2001, Marty Thompson, as administrator of Ellis's estate, sued Dr. Patton and the Clinic, alleging wrongful death under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-541 et seq., Ala.Code 1975 ("the AMLA"). Thompson alleged that Dr. Patton had breached the standard of care by discharging Ellis from the hospital prematurely, failing to formulate an appropriate outpatient-treatment plan, failing to readmit Ellis to a psychiatric unit, and failing to implement proper suicide precautions. At trial on March 19, 2004, Dr. Nathan Strahl, a psychiatrist, testified as an expert witness for Thompson. Dr. Strahl had reviewed Ellis's medical records, and his testimony regarding causation was as follows: "Q. . . . In your opinion, given your review of the records and your understanding of Ms. Ellis's condition on 11/23/99, was there a probability that she would attempt suicide or self harm if she was released from the hospital? ". . . . "A. That was a probability. The probability increases the more factors that she would carry leaving the hospital that are risk factors for suicide. "Q. And did Ms. Ellis possess many of these risk factors? "A. She did. "Q. Was it highly probable? "A. It was highly probable that she might do something to herself, yes. "Q. Doctor, in your opinion, should a treating psychiatrist, given what we know and what you have reviewed about Ms. Ellis, exercising reasonable care, diligence and skill have recognized this probability that you just testified to? "A. I would think so, yes, sir. ". . . . "Q. I think you just answered my next question, but I want to ask it so the record is clear. Strictly concerning this discharge which you have criticized today, given the facts and circumstances that you're aware of in Ms. Ellis's condition on 11/22/99, what would be the standard of care or what would the standard of care have dictated on the date concerning discharge? "A. In my medical opinion, with the night before, the statements about `I hope so,' reservations about not being suicidal, the continued psychotic features, I would be very concerned about discharge. Usually, the record shows some anxiety typically prior to discharge. I would not count that as a negative factor. Most patients would have some anxiety about leaving. But here we're having clear indication of psychotic symptoms and concerns that she voiced last night about being able to take care of herself in terms of safety. I think based on those two things, hospitalization [sic] is a bit premature. 306 "Q. Doctor, did Ms. Ellis's discharge fall below the recognized standard of care for a psychiatrist? "A. In my medical opinion, it did." Dr. Strahl also testified as follows: "Q. And, Doctor, I want to clarify that, so let me ask you these questions. Did the standard of care dictate that Dr. Patton keep Ms. Ellis in the hospital beyond November 23, 1999? "A. My medical opinion, it did. ". . . . "Q. Doctor, do you have an opinion as to whether suicide was an eminent potential given Ms. Ellis's release on November 23, 1999? "A. Yes. "Q. And what is that opinion? "A. That it was." Dr. Patton and the Clinic moved for a judgment as a matter of law at the close of Thompson's case, which the trial court denied. Dr. Patton and Dr. Joseph Lucas, a psychiatrist, testified for the defense. Dr. Patton and the Clinic again moved for a judgment as a matter of law at the conclusion of all the evidence. The trial court denied the motion. The jury was unable to reach a verdict, and the trial court declared a mistrial. Dr. Patton and the Clinic filed a motion entitled "Defendants' Rule 50(b)[, Ala. R. Civ. P.,] Renewed Motion for a Judgment as a Matter of Law, or, Alternatively Styled, Motion for a Summary Judgment." In that motion, they argued that Thompson failed to meet his burden of producing sufficient evidence to prove that Dr. Patton's alleged negligence was the proximate cause of Ellis's death. The trial court denied the motion in the following order: "Having given careful consideration to [Dr. Patton and the Clinic's] renewed motion for judgment as a matter of law, the court is of the opinion that [the] motion is due to be denied. Using the standard set out in Keeton v. Fayette County, 558 So.2d 884 (Ala.1989), the court finds that [Thompson] has proffered sufficient evidence that a genuine issue of material fact exists, so as to allow this case to proceed to trial. "In Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988), the Supreme Court held that recovery for failure to prevent a suicide is dependent upon whether the defendant reasonably should have anticipated that the deceased would attempt to harm [herself]. Alabama law bases proximate causation in suicide cases on the foreseeability of the decedent's suicide. The Supreme Court has held foreseeability is legally sufficient if the deceased had a history of suicidal proclivities or manifested suicidal proclivities in the presence of the defendant or was admitted to the facility of the defendant because of a suicide attempt. Keeton, 558 So.2d at 887. The record is clear Ms. Ellis had a history of recent suicide attempts and a suicide attempt was the primary indication for her admission to [BMCM] preceding her final discharge and subsequent suicide. Further, the record indicates Ms. Ellis continued to experience some suicidal proclivities during her final hospitalization at [BMCM]. The record also indicates Dr. Patton was aware of the manifestations of suicidal proclivities during [Ellis's] final hospitalization. "Having reviewed the record as a whole, it is this court's opinion [that Thompson] met the required threshold of proof that a reasonable jury could reach the conclusion that Ms. Ellis's suicide was proximately caused by [Patton and the Clinic's] negligence." This Court granted a permissive appeal under Rule 5, Ala. R.App. P., to answer 307 the previously quoted controlling question of law. The first part of the controlling question of law asks what degree of proof is necessary to establish the essential element of proximate cause in a medical-malpractice/wrongful-death action against a psychiatrist resulting from the suicide of the psychiatrist's patient. Dr. Patton and the Clinic contend that there is "an ostensible conflict between the case law discussing the concepts of foreseeability and proximate cause in suicide cases [i.e., Keebler v. Winfield Carraway Hosp., 531 So.2d 841 (Ala.1988), and Keeton v. Fayette County, 558 So.2d 884 (Ala.1989),] and the case law discussing the `probably caused [the death in question]' standard of proof required in medical malpractice cases [§ 6-5-549, Ala. Code 1975]." (Petition to appeal p. 7.) According to Dr. Patton and the Clinic, applying Keebler and Keeton dispenses with the requirement in § 6-5-549 that a plaintiff in a medical-malpractice action produce substantial evidence showing that the alleged breach of the standard of care "probably caused" the death in question. Put another way, they argued that if Keebler and Keeton apply because the death was by suicide, then a plaintiff would not need to present expert testimony as to the issue of causation because proximate cause would be established if the decedent had a history of suicidal proclivities or manifested suicidal proclivities in the presence of the defendant or was admitted to the defendant's facility because of a suicide attempt. Thompson argues that Alabama courts have firmly distinguished the evidentiary requirements of a typical medical-malpractice case from a medical-malpractice case resulting from a patient's suicide. Thompson argues that he established proximate causation by satisfying all three of the criteria set out in Keebler and Keeton. He further argues that § 6-5-549 of the AMLA, as amended, did not affect prior precedent with regard to proximate cause and that whether Dr. Patton's alleged negligence was the proximate cause of Ellis's death is a question of whether Ellis's suicide was foreseeable. Discussion This Court first addressed a caregiver's duty to guard against a patient's suicide in Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988). In Keebler a rescue squad was summoned to assist a man lying in a bed complaining of chest pains. They took the man to the emergency room, and the emergency-room physician diagnosed him as suffering from probable alcohol abuse, possible drug abuse, and chest pains. The man's son said the man had been drinking and that he could have ingested the sedative Valium, so the emergency-room physician pumped the man's stomach to prevent an overdose. The emergency-room physician also administered nitroglycerin to alleviate the chest pains and attempted to admit the man to the hospital. When the man continued to act disorderly and refused to enter his hospital room, the emergency-room physician contacted the police. The police told the man he would have to go to his room and, if he did not, that he would be taken to jail. The man refused to obey, and he was taken into custody. A couple of hours later, the man was found dead in a jail cell; he had hung himself by tying one end of a T-shirt around his neck and the other to a bar of the jail door. The man's wife sued the emergency-room physician, among others, alleging wrongful death. The trial court granted the emergency-room physician's motion for a directed verdict at the close of the wife's case. On appeal, the wife argued that the emergency-room physician had abandoned his duty of care toward the man. This 308 Court stated that her argument presupposed that the physician owed the man a duty to continue medical treatment after he left the emergency room and that the existence of such a duty depended on whether the physician knew that the man was likely to commit suicide. This Court stated: "Making a physician's duty to guard against a suicide conditional on its foreseeability is a prudent rule and one consistent with our own decisions. In Mobile Infirmary v. Eberlein, 270 Ala. 360, 369, 119 So.2d 8, 17 (1960), we stated that ordinarily no one is required to guard against or take measures to avert that which a reasonably prudent person under the circumstances would not anticipate as likely to happen. In Jackson [v. Burton, 226 Ala. 483, 147 So. 414 (1933),] a medical malpractice case in which we addressed the issue of whether a physician abandoned his duty to render medical treatment at a critical stage of a patient's illness, we stated: `[W]hen a physician has undertaken the treatment of a patient whose condition, known to the physician, is such that without continuous or frequent expert attention, he is likely to suffer injurious consequences, he must either render such attention himself or see that some other competent person does so.' 226 Ala. at 485, 147 So. at 416. "In the case sub judice, [the wife] failed to introduce any evidence indicating that [the physician] should have reasonably foreseen her husband's suicide. Although [the wife's expert] testified that the combined effects of alcohol and Valium pose a calculable risk that a patient may attempt suicide, this evidence does not create an inference that [the husband]'s suicide should have been reasonably foreseen by [the physician]. [The wife] had the burden to show through expert testimony that [the physician] breached his duty to exercise such reasonable care, diligence, and skill as reasonably competent physicians in the national medical community ordinarily would in the same or similar circumstances. Code 1975, 6-5-484(a). Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254 (Ala.1982); Dobbs v. Smith, 514 So.2d 871 (Ala.1987). [The wife] predicates her malpractice claim on the theory that [the physician] should have foreseen her husband's imminent self-destruction and then should have taken precautionary measures to prevent it from happening. However, [the expert]'s testimony did not satisfy the `unique quality of proof of the alleged wrongdoing' required in medical malpractice cases. Hines v. Armbrester, 477 So.2d 302 (Ala.1985). [The expert] did not testify as to the national medical standard of care. Specifically, [the expert] did not testify that reasonably competent physicians within the national medical community when treating a patient who had ingested Valium and alcohol would view suicide as a reasonably foreseeable contingency to be guarded against, and that [the physician] breached the standard of care ordinarily exercised by other physicians in the national medical community by failing to foresee and to guard against [the husband]'s suicide. Moreover, the record did not indicate that [the husband] had a history of suicidal proclivities, that he manifested suicidal proclivities while at the hospital, or that he was admitted due to a suicide attempt. Arguably, such facts as these, if known to [the physician], would have rendered the contingency of suicide reasonably foreseeable. See Knuth, Civil Liability for Causing or Failing to Prevent Suicide, 12 Loy. L.A.L.Rev. 967, 991 (1979). Thus, [the wife] failed to meet her burden. The evidence presented 309 at trial did not create a fact question as to whether [the physician] should have foreseen [the husband]'s suicide. Therefore, the trial court correctly ruled, as a matter of law, that [the physician] was under no duty to render continuous attention to prevent the likely occurrence of [the husband]'s suicide. Jackson, supra." Keebler, 531 So.2d at 845. Therefore, Keebler does not concern itself with the element of proximate causation as set out in the controlling question. Rather, the duty the emergency-room physician owed to the deceased did not include a standard of care to protect against or to prevent suicide, because there was an absence of factors that would have made the patient's suicide foreseeable, thereby triggering such a duty. In Keeton v. Fayette County, 558 So.2d 884 (Ala.1990), the father of a teenager who died as a result of a self-inflicted hanging while confined in the county jail sued the County. The trial court entered a summary judgment in favor of the County. This Court held that the County had voluntarily undertaken the duty to provide cells for the detention of youthful offenders in the jail, which was generally used for the confinement of adults. In Keeton, this Court held that it was reasonably foreseeable as a matter of law that minors might attempt to harm themselves while incarcerated in a county jail, based upon § 12-15-61, Ala.Code 1975, addressing facilities to be used for the detention or shelter care of children, and the county jail manual adopted by the County in order to obtain approval by the Department of Youth Services to use county jail cells typically used for adult prisoners for the detention of juveniles. "There was evidence before the trial court when it granted Fayette County's motion for summary judgment that one reason for requiring the monitoring of a juvenile offender confined to a jail cell is to make certain that the juvenile does not injure himself. Therefore, the fact that juveniles may attempt to harm themselves when incarcerated was reasonably foreseeable as a matter of law. This is different from Keebler v. Winfield Carraway Hospital, 531 So.2d 841 (Ala.1988), where it was held that foreseeability of a decedent's suicide is legally sufficient only if the deceased had a history of suicidal proclivities, or manifested suicidal proclivities in the presence of the defendant, or was admitted to the facility of the defendant because of a suicide attempt." Keeton, 558 So.2d at 887. This Court reversed the summary judgment entered in favor of the County. Keeton is similar to Keebler in that both concern a duty to the deceased. Keeton is distinguishable from Keebler in that a duty to protect incarcerated juveniles was imposed upon the County because it was foreseeable that juveniles in that situation might attempt to harm themselves. Both Keebler and Keeton deal with the duty owed, based upon the presence or absence of the foreseeability of suicide, rather than the proximate-causation issue presented by the trial court in the controlling question here. In City of Crossville v. Haynes, 925 So.2d 944 (Ala.2005), this Court applied the holding in Keebler in a wrongful-death action involving the suicide of an inmate. In Haynes, the inmate's estate filed a wrongful-death and negligence action against the City, the police chief, the police officers, and the dispatchers after an inmate committed suicide in the city jail. The trial court entered a summary judgment in favor of the police chief and the police officers on the grounds of police-officer immunity under § 6-5-338(a), Ala. Code 1975, and/or under State-agent immunity 310 pursuant to Ex parte Cranman, 792 So.2d 392 (Ala.2000). The estate's claims against the City and the dispatchers went to trial, and a jury found in favor of the dispatchers concluding that they had not acted negligently or wantonly. However, the jury returned a verdict against the City on the estate's claim of negligent training and awarded damages in the amount of $550,000, which was remitted to $100,000 pursuant to § 11-93-2, Ala.Code 1975. On appeal, the City in Haynes argued that the trial court erred in allowing the negligent-training claim to go forward against the City, when the estate failed to show that the inmate had manifested suicidal proclivities in the presence of the individual defendants and, thus, had failed to show that the inmate's suicide was foreseeable. The inmate was arrested on a worthless-check warrant and never made any actual or implied threat to harm himself. The individual defendants knew only that the inmate had become irate on one occasion when he wanted to go outside to smoke and later apologized for his behavior, that he had mentioned to one of the officers that he had had a nervous breakdown and that a tornado had destroyed his business, that he had soiled his pants when he first came to the city jail, that he had requested some unidentified medication, and that he had asked to speak with a drug-enforcement agent. This Court in Haynes concluded that the evidence did not rise to the level necessary to establish that the individual defendants could have or should have reasonably foreseen that the inmate would commit suicide. "This test of foreseeability remains the law applicable today in determining whether a duty to prevent a suicide exists." 925 So.2d at 951 (emphasis added). We note that several of the cases in which this Court has addressed civil liability arising out of a suicide involved custodial cases. See City of Crossville v. Haynes, 925 So.2d 944; Tittle v. Giattina Fisher & Co., Architects, 597 So.2d 679 (Ala.1992); Popham v. City of Talladega, 582 So.2d 541 (Ala.1991); Keeton, 558 So.2d 884. Prison officials have a duty to exercise ordinary and reasonable care for the protection of persons in their custody. This duty generally does not include protection from self-inflicted injury or death. However, the duty can include protection from self-inflicted injury or death when the prison officials knew or should have known that the prisoner might harm himself. The custodial cases have generally followed the foreseeability test set out in Keebler; once a custodian is aware that an inmate has suicidal proclivities, the custodian is on notice that suicide is a possible result and must act accordingly. A foreseeable suicide gives rise to a duty on the custodian's part. Haynes. The fact that the suicide was foreseeable, however, does not necessarily mean that the custodian's acts or omissions amounted to negligence. The defendant must exercise reasonable care for the protection of the inmate's life and health under the circumstances of the particular case. In other words, if the suicide is foreseeable, the custodian owes a duty to try to prevent the suicide. Conversely, in the absence of Keebler and Keeton factors in a medical-malpractice action involving a patient who commits suicide, the resulting lack of foreseeability would absolve a health-care provider of any duty to attempt to prevent the suicide. The analysis in Keebler and Keeton focuses on "duty" in a case alleging negligence. In Keebler, supra, this Court found that there was no duty to prevent the suicide because the suicide there was not foreseeable. In Keeton, supra, once the County voluntarily agreed to provide jail cells for juvenile offenders, it assumed 311 a duty of acting with due care to make certain the juvenile offender did not harm himself. When a patient has a history of suicidal proclivities, has manifested suicidal proclivities in the presence of the defendant, or was admitted to the facility because of a suicide attempt, then the health-care provider has a duty to take reasonable precautions to prevent a suicide. In the present case, the record supports the trial court's findings in its order that Dr. Patton knew that Ellis had suicidal proclivities and that she was aware that Ellis had manifested suicidal proclivities during her last hospitalization. Accordingly, Dr. Patton had a duty to take reasonable precautions to prevent Ellis's suicide. Keebler. Thompson argues that he established proximate cause by presenting evidence of Ellis's suicidal proclivities, in conformance with Keebler. However, the Court in Keebler addresses foreseeability in the context of duty, not proximate cause. This is evidenced by the Keebler Court's reframing of the plaintiff's argument from abandonment of duty to whether the doctor and hospital owed Keebler a duty and its holding that the existence of such a duty depends on whether the doctor knew or should have known that Keebler was likely to commit suicide. The Keebler Court addresses duty but not causation. Furthermore, the Keebler Court pretermitted any discussion of whether the trial court erred in excluding testimony on the question of proximate cause. Although Thompson has, in his medical-malpractice action, established that Dr. Patton owed a duty to Ellis based on Keebler, he must prove, generally through expert testimony, that there was an applicable standard of care, that Dr. Patton breached that standard, and that the breach was a proximate cause of Ellis's injuries. Lyons v. Walker Reg'l Med. Ctr., 791 So.2d 937 (Ala.2000).[1] With regard to proximate cause, this Court has stated: "A plaintiff in a medical-malpractice action must also present expert testimony establishing a causal connection between the defendant's act or omission constituting the alleged breach and the injury suffered by the plaintiff. Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991). See also Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003); University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994); and Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988). To prove causation in a medical-malpractice action, the plaintiff must demonstrate `"that the alleged negligence probably caused, rather than only possibly caused, the plaintiff's injury."' Bradley, 878 So.2d at 266 (quoting University of Alabama Health Servs., 638 So.2d at 802). See also DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003)(`"There 312 must be more than the mere possibility that the negligence complained of probably caused the injury."' (quoting Parker v. Collins, 605 So.2d 824, 826 (Ala. 1992))); and Pendarvis v. Pennington, 521 So.2d 969, 970 (Ala.1988)(`"The rule in medical malpractice cases is that to find liability, there must be more than a mere possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury."' (quoting Williams v. Bhoopathi, 474 So.2d 690, 691 (Ala.1985), and citing Baker v. Chastain, 389 So.2d 932 (Ala. 1980)))." Sorrell v. King, 946 So.2d, 854, 862 (Ala. 2006). We do agree with Thompson that a medical-malpractice action based on a patient's suicide is different from a general medical-malpractice action because in the former the patient's death is at his own hands. The Illinois Court of Appeals, in discussing the propriety of jury instructions in an action against a health-care provider arising out of the provider's treatment of a patient with suicidal ideas, stated: "[T]his case is different than the typical medical malpractice case because plaintiff here alleges medical malpractice by a psychiatrist treating a suicidal patient who ultimately committed suicide. The critical distinction between this case and all other medical malpractice cases is that here the patient does not share the goal of his physician of getting better; while the doctor is working to assist the patient to suppress suicidal tendencies, the patient, by the nature of his illness, may be working at cross-purposes to his doctor's suggestion and may not be interested in following instructions designed to enable him or her to safely take prescribed medication." Peoples Bank of Bloomington v. Damera, 220 Ill.App.3d 1031, 1035, 581 N.E.2d 426, 429, 163 Ill.Dec. 475, 478 (1991). The trial court in its order denying the defendants' motion for a judgment as a matter of law blurred the distinction between the different elements necessary to establish medical malpractice when it stated, based on Keebler and Keeton: "Alabama law bases proximate causation in suicide cases on the foreseeability of the decedent's suicide." However, the answer to the first part of the controlling question is that the plaintiff in any medical-malpractice action, including medical-malpractice/wrongful-death actions against a psychiatrist resulting from the suicide of that psychiatrist's patient, must prove by substantial evidence that the psychiatrist breached the applicable standard of care and that that breach was a proximate cause of the patient's injuries. The second part of the question certified by the trial court is whether Thompson met the burden of proof in this case regarding proximate cause. "`[I]t is well established that the question of proximate cause is almost always a question of fact. . . .'" Norris v. City of Montgomery, 821 So.2d 149, 155 n. 8 (Ala.2001)(quoting Lemond Constr. Co. v. Wheeler, 669 So.2d 855, 862 (Ala.1995)). Pursuant to Rule 5, Ala. R.App. P., an interlocutory order should be certified for appeal when "the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted litigation." "In other words, Rule 5 is not a vehicle by which to obtain review of `significant and unresolved factual issues.'" Gowens v. Tys. S., 948 So.2d 513, 530 (Ala.2006)(quoting 313 Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 104 (Ala.2003)) (emphasis added in Gowens). Accordingly, we decline to review whether Thompson has met the burden of proof regarding proximate cause. Summary In summary, we answer the first part of the controlling question of law as follows: The plaintiff in a medical-malpractice action against a psychiatrist arising out of the suicide of the psychiatrist's patient must prove by substantial evidence that the psychiatrist breached the applicable standard of care and that the breach was a proximate cause of the patient's death. Accordingly, the trial court erred in concluding that Thompson had established proximate cause based simply on the duty analysis in Keebler and Keeton. We decline to address the factual question of whether Thompson met the burden of proof regarding proximate cause. Consequently, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings. REVERSED AND REMANDED. HARWOOD, STUART, and PARKER, JJ., concur. SEE, J., concurs in part in the rationale and concurs in the result. NABERS, C.J., and LYONS, WOODALL, and SMITH, JJ., dissent. SEE, Justice (concurring in part in the rationale and concurring in the result). The question certified to us is as follows: "The controlling question of law is the degree of proof necessary to establish the essential element of proximate causation in a medical malpractice/wrongful death action against a psychiatrist for the suicide of that psychiatrist's patient and whether the plaintiff in this case has met that requisite degree of proof." I believe that the answer to the first question is that the degree of proof required is substantial evidence. I do not believe the second question can be answered adequately without an elaboration of those elements that must be proven by substantial evidence. I concur with the main opinion that the plaintiff in a medical-malpractice action against a psychiatrist alleging the wrongful death of a patient by suicide must prove by substantial evidence the applicable standard of care, that the psychiatrist breached that standard of care, and that the breach proximately caused the patient's death. Alabama Medical Liability Act, § 6-5-548(a), Ala.Code 1975; Lyons v. Walker Reg'l Med. Ctr., 791 So.2d 937 (Ala.2000). I also agree with the main opinion that "[t]he trial court in its order denying the defendants' motion for a judgment as a matter of law blurred the distinction between the different elements necessary to establish medical malpractice when it stated, based on Keebler and Keeton: `Alabama law bases proximate causation in suicide cases on the foreseeability of the decedent's suicide.'" 958 So.2d at 312. I do not see in the record an explication of what the applicable national standard of care is; therefore, the statement by the plaintiff's expert that Dr. Patton's treatment was a breach of that standard is without adequate basis. I also do not find testimony indicating that Dr. Patton's treatment caused Ellis's suicide. Even if Dr. Patton's treatment fell below the applicable standard of care, it is not sufficient to say that there was a breach of the standard of care "and" that the patient committed suicide. In other circumstances, liability for a negligent breach of *314 the applicable standard of care requires the demonstration of causation, not simply a showing of temporal proximity. Bradley v. Miller, 878 So.2d 262, 266 (Ala. 2003)("`To prove liability in a medical malpractice case, the plaintiff must prove (1) the appropriate standard of care, (2) the doctor's deviation from that standard, and (3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff.'"). The suicide may have been unrelated to the breach. I agree with the main opinion that "`Rule 5 is not a vehicle by which to obtain review of "significant and unresolved factual issues"'"; however, in this case, the plaintiff failed to establish what the national standard of care is. Therefore, in answer to the second question presented, namely, "whether the plaintiff in this case has met that requisite degree of proof," I would conclude that the plaintiff has not. WOODALL, Justice (dissenting). The main opinion, by declining to review whether Thompson met the proper burden of proof regarding proximate cause, has held, in effect, that this case does not involve "a controlling question of law as to which there is substantial ground for difference of opinion," as required for a Rule 5, Ala. R.App. P., permissive appeal. Consequently, the Court should withdraw its permission and dismiss this appeal. NABERS, C.J., and LYONS and SMITH, JJ., concur. NOTES [1] The AMLA provides that in any medical-malpractice action "the plaintiff shall have the burden of proving by substantial evidence" that the health-care provider failed to exercise the requisite care, skill, and diligence, § 6-5-548(a), and that "the minimum standard of proof required to test the sufficiency of the evidence to support any issue or fact shall be proof by substantial evidence." § 6-5-549. The legislature, in 1996, added the following sentence to § 6-5-549: "In the case of a jury trial, the jury shall be instructed that in order to return a verdict against a health care provider, the jury shall be reasonably satisfied by substantial evidence that the health care provider failed to comply with the standard of care and that such failure probably caused the injury or death in question." Act No. 96-511, Ala. Acts 1996 § 3 (emphasis added). A jury in a medical-malpractice case now must be instructed that it can return a verdict for the plaintiff only if the plaintiff has proven his case by substantial evidence. See Edgeworth v. Family Chiropractic & Health Ctr., P.C., 940 So.2d 1011 (Ala.2006)(discussing the 1996 amendment to the AMLA).	{ "pile_set_name": "FreeLaw" }
PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 19-1720 ________________ UNITED STATES OF AMERICA v. CLARENCE HOFFERT, Appellant ________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 2-18-cr-00073-001) District Judge: Honorable Christopher C. Conner ______________ Argued: November 13, 2019 Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges (Filed: February 11, 2020 ) Quin M. Sorenson [Argued] Office of Federal Public Defender 100 Chestnut Street Suite 306 Harrisburg, PA 17101 Counsel for Appellant Jonathan P. Cantil [Argued] Wei Xiang Office of United States Attorney 138 Delaware Avenue Buffalo, NY 14202 Counsel for Appellee ________________ OPINION ________________ SCIRICA, Circuit Judge Clarence Hoffert appeals his convictions and sentences under 18 U.S.C. § 1521 for filing false liens against five federal officers who were involved in denying Hoffert’s requests to be released from prison, where he is currently serving a lengthy sentence for prior convictions. 1 Hoffert challenges both the 1 Hoffert was convicted and sentenced by the Court of Common Pleas of Lebanon County, Pennsylvania for 2 validity of § 1521—contending it is unconstitutionally vague and an overbroad restriction of protected speech—as well as the sufficiency of the evidence presented at his trial. The trial court rejected both challenges, concluding the statute is neither unconstitutionally vague nor overbroad and that the evidence could rationally support a guilty verdict. We will affirm. I. This case is the latest entry in a long and confusing saga relating to Clarence Hoffert’s current incarceration at SCI- Albion for convictions arising out of the Court of Common Pleas of Lebanon County, Pennsylvania in 2003. It has its roots in requests that Hoffert made for documents from various governmental entities years after he began serving his sentence. In September 2012, Hoffert asked the Clerk of Court for the Lebanon County Courthouse to provide him a copy of his original sentencing order, explaining that prison officials at SCI-Albion allegedly had difficulty “keeping their records in order” and that Hoffert, in his words, “would like to be able to prove to them what my minimum [sentence] is when the time comes that I shall be eligible for parole.” App’x 323. The Clerk of Court quickly responded with a copy of the sentencing order, but noted that “[i]f the SCI needs your paperwork to be resent to them, they must make the request by e-mail or fax.” App’x 325. Shortly after getting a copy of his sentencing order, consecutive counts of rape (9 ½ to 20 years), corruption of a minor (2 ½ to 5 years), and endangering the welfare of children (40 months to 7 years), for a cumulative total of approximately 15 to 32 years in prison. 3 Hoffert filed a request with the Right-to-Know Office of the Pennsylvania Department of Corrections under Pennsylvania’s Right-to-Know Law, 65 Pa. Stat. Ann. § 67.101 et seq., asking for the Department of Corrections to produce a sentencing order with a “seal stamped upon it,” along with other associated documents. App’x 342. The request was denied with the explanation that such records “do not currently exist.” App’x 344. Hoffert appealed to the Pennsylvania Office of Open Records, the Department of Corrections again searched its records and found nothing, and the Office of Open Records concluded in a final determination that “no responsive records exist within the Department’s possession, custody or control.” App’x 357–58. Hoffert was advised that he could appeal to the Commonwealth Court of Pennsylvania if he disagreed with the final determination. Hoffert then filed a pro se § 1983 complaint in the United States District Court for the Western District of Pennsylvania, attaching as exhibits several documents relating to his right-to-know request, including the final determination denying his request. Hoffert asserted that he “ha[d] been incarcerated now for over ten years without the proper ‘Sealed’ documentation,” sought damages of $3,500 per day for his “initial and continued illegally held confinement,” and demanded his “unbiased and immediate release” from custody. App’x 362. His complaint was dismissed in a report and recommendation adopted by the trial court, which held that (1) Eleventh Amendment immunity prevented Hoffert from seeking damages from the Commonwealth of Pennsylvania; and (2) claims for immediate release from illegal detention are not cognizable under 42 U.S.C. § 1983 and must instead be addressed through a habeas corpus petition. See Hoffert v. Pennsylvania, No. 13-162, 2014 WL 4262166 (W.D. Pa. Aug. 4 27, 2014). We affirmed. See Hoffert v. Pennsylvania, No. 14- 3947 (3d Cir. Jan. 6, 2015) (non-precedential). Following the dismissal of his complaint, Hoffert filed an administrative tort claim with the Torts Branch of the United States Department of Justice’s Civil Division, seeking $7,396,800,000 ($1.6 million per day) for his allegedly unlawful incarceration, which he claimed was “beyond the lawful Decrees of the Laws of Commerce and without use of a compact/contract/agreement between the Claimant and the U.S. Inc.’s subcorporation, PENNSYLVANIA.” App’x 386– 93. An “affidavit” associated with the administrative tort claim elaborated on who was purportedly responsible for these damages by providing a long list of state and federal entities that had interacted with Hoffert, from the date of his arrest many years before to the more recent denial of his § 1983 complaint. The Torts Branch denied Hoffert’s administrative tort claim. It determined that Hoffert’s claim was not compensable because the claim alleged wrongful acts or omissions by employees of the Commonwealth of Pennsylvania, who were not federal employees and therefore fell outside the scope of the Federal Tort Claims Act. See 28 U.S.C. § 1346(b)(1); Couden v. Duffy, 446 F.3d 483, 499 (3d Cir. 2006) (“The FTCA waives the federal government’s sovereign immunity as to negligent or wrongful actions by its employees within the scope of their official duties . . . .” (emphasis added)). Hoffert was informed that if he was dissatisfied with this decision, he could timely file suit in an appropriate United States District Court. Instead, Hoffert wrote a letter to the director of the Torts Branch disputing the decision and threatening to “add your [the director’s] name and Agency to my Form 95 Administrative 5 Tort Claim and file it to the superiors of the United States Inc. at the United Nations.” App’x 412. This letter was returned to Hoffert by a legal assistant at the Torts Branch with a brief explanation that the Torts Branch was no longer involved in the matter because it had denied the claim. 2 Things came to a head soon after. On August 4, 2017, Hoffert filed a “Claim of Commercial Lien Affidavit [and] Notice of Non-Judicial Proceeding” in the Office of the Recorder of Deeds, Erie County, Pennsylvania, in which he named five federal officials as lien debtors: (1) the magistrate judge who recommended dismissal of his § 1983 complaint; (2) the district court judge who adopted that recommendation and dismissed that complaint; (3) one member of the Third Circuit Court of Appeals panel that affirmed the dismissal of the complaint; (4) the director of the Civil Division’s Torts Branch involved with the denial of Hoffert’s administrative tort claim; and (5) the legal assistant who responded to Hoffert’s letter disputing the denial of his administrative tort claim. 3 These individuals were “now being liened for a 2 During this time, Hoffert also submitted various filings to the Secretary of the Treasury of Puerto Rico, such as an “Affidavit Notice Demanding Setoff of Account,” in which he requested the Secretary’s “most expedient intervention at correcting the record by paying the bond to setoff the account charged against the legal fiction U.S. vessel Clarence Hoffert by the Lebanon County Court of Common Pleas,” among other things. The record does not indicate whether Hoffert ever received a response to these entreaties. 3 Two Pennsylvania state officials were also named. 6 minimum amount of $650,000 U.S. Dollars each” because they had allegedly failed to comply with Pennsylvania law, “chose to ignore the un-Constitutional sanctions imposed against [Hoffert],” committed “treason,” and had engaged in other purported transgressions. App’x 426. The liens were “intended to seize all real and movable property of the [seven] Lien Debtors,” as well as the property of their spouses and children. Id. Hoffert claimed that each of these individuals was liable for $8,000,000 in damages, for a total of $56 million. Hoffert appears to have reached this sum through his interpretation of 18 U.S.C. § 3571, which permits a court to fine defendants found guilty of a misdemeanor or felony offense. In his cover letter to the Recorder’s Office, Hoffert specifically requested that the liens be filed “as a Public Record.” App’x 423. A few months after mailing the liens to the Recorder’s Office, Hoffert asked the United States Marshals Service to “serv[e] each lien debtor with a Distraint Warrant and to begin collection/liquidation of all their movable assets.” App’x 511. In response to this request, two marshals interviewed Hoffert on January 30, 2018, to discuss the various papers he had submitted with his liens and subsequent requests for service. During this interview, which was recorded, Hoffert acknowledged that he wanted the marshals to seize and liquidate the property of the lien debtors. Nearly two months later, a federal grand jury indicted Hoffert, charging him with five counts of filing or attempting to file a false lien or encumbrance against the real or personal property of an officer or employee of the federal government, in violation of 18 U.S.C. § 1521. Hoffert moved to dismiss the indictment, contending § 1521 was an unconstitutionally vague and overbroad restriction of protected speech. The trial court 7 denied the motion in a careful and thorough opinion. At trial, the jury was presented with evidence showing that the document filed by Hoffert at the Recorder’s Office was, and was intended to be, a false lien or encumbrance. Jurors heard testimony from each named victim confirming that they did not know Hoffert, had no financial dealings with Hoffert, and did not owe Hoffert any amount of money. Hoffert also took the stand at trial, explaining that he had chosen not to file a habeas corpus petition because he had “watched guys sit ten years in court and their habeas corpus never came up.” App’x 219. He thus pursued a different strategy: “I just wanted the notoriety. I really wasn’t looking to get any type of monetary value out of anything. . . . I just wanted to show that we’re still being held without the proper paperwork.” App’x 220. Hoffert also indicated that although he sought damages of $8 million from each victim under his reading of 18 U.S.C. § 3571, which permits a court to impose criminal penalties, he nonetheless understood that only the government could bring criminal charges against a person. The jury convicted Hoffert on all five counts. He moved for a judgment of acquittal, arguing the evidence was not sufficient to sustain his convictions. The trial court denied his motion, concluding that the record contained sufficient evidence to support the jury’s guilty verdict, and sentenced Hoffert to 48 months of imprisonment consecutive to the sentences he was already serving. He now appeals, arguing that 18 U.S.C. § 1521 is unconstitutional and that there was insufficient evidence to support his convictions. 8 II. Section 1521 makes it illegal to file a false lien against federal officials for the performance of their official duties: Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an individual described in section 1114, on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both. 18 U.S.C. § 1521. Hoffert asserts § 1521 is unconstitutional because the scienter requirement “knowing or having reason to know” is vague and overbroad. As Hoffert challenges the constitutionality of this criminal statute, our review is de novo. See United States v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011). We have jurisdiction over the final decision of the trial court under 28 U.S.C. § 1291. A. We begin with Hoffert’s vagueness challenge to § 1521. A conviction violates due process if a criminal statute on which 9 the conviction is based “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). “For the criminal context in particular, vagueness challenges ‘may be overcome in any specific case where reasonable persons would know their conduct puts them at risk of punishment under the statute.’” United States v. Ferriero, 866 F.3d 107, 124 (3d Cir. 2017) (quoting United States v. Moyer, 674 F.3d 192, 211 (3d Cir. 2012)). A criminal statute need only give “fair warning” that certain conduct is prohibited, Ferriero, 866 F.3d at 124, and “one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line,” Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952). Section 1521’s scienter requirement, or one quite similar to it, is ubiquitous in the criminal law, see, e.g., United States v. Saffo, 227 F.3d 1260, 1268 (10th Cir. 2000) (collecting statutes), and has withstood numerous vagueness challenges. In Gorin v. United States, the Supreme Court considered a vagueness challenge to the Espionage Act, which criminalized certain conduct when a defendant had “intent or reason to believe” that certain information would “be used to the injury of the United States, or to the advantage of any foreign nation.” 312 U.S. 19, 27–28 (1941). In rejecting the challenge, the Court found “no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal,” and focused in particular on the “obvious delimiting words” of the scienter requirement, which “require[d] those prosecuted to have acted in bad faith.” 10 Id. 4 We think it clear that if the scienter requirements challenged in Gorin and many other cases were not vague, then neither is § 1521. Hoffert nonetheless contends that § 1521 is unconstitutionally vague because “entirely innocent persons” could be convicted under a “reason to know” standard. Appellant Br. at 15. We disagree. Rather than permitting the conviction of innocent persons, § 1521 has a scienter requirement that defines the level of culpability for the offense and which has a settled legal meaning. A person has “reason to know” of a certain fact when “a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists.” See Reason to Know, Black’s Law Dictionary (11th ed. 2019). As courts have uniformly recognized, a criminal statute 4 Following Gorin, the courts of appeals have consistently rejected vagueness challenges to similar scienter requirements. See, e.g., Saffo, 227 F.3d at 1270 (rejecting challenge to “reasonable cause to believe” standard because the defendant could only have understood it to proscribe the sale of illegal pseudoephedrine); Casbah, Inc. v. Thone, 651 F.2d 551, 561 (8th Cir. 1981) (rejecting challenge to statute criminalizing the sale of items that a seller “reasonably should know” will be used as drug paraphernalia); United States v. Featherston, 461 F.2d 1119, 1121–22 (5th Cir. 1972) (rejecting challenge to 18 U.S.C. § 231’s “knowing or having reason to know” requirement because the statute was “sufficiently definite to apprise men of common intelligence of its meaning and application”). 11 employing a “reason to know” standard requires an individual to proceed with reasonable care and to “open his eyes to the objective realities” of a given course of conduct. Casbah, 651 F.2d at 561; see also Fla. Businessmen for Free Enter. v. City of Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982) (“The ‘reasonably should know’ standard does not punish innocent or inadvertent conduct. . . .”). With respect to § 1521, the only court of appeals to have so far construed the statute has similarly held that “[u]nder § 1521, . . . a defendant can be guilty even if he honestly believed that he filed a proper lien so long as the belief was not a reasonable one.” United States v. Williamson, 746 F.3d 987, 994 (10th Cir. 2014). So instead of being vague, § 1521’s use of “reason to know” reveals nothing more complicated than that Congress intended for lien filers to proceed with reasonable care as to the falsity of a lien. Further undermining Hoffert’s vagueness challenge is that § 1521 limits criminal liability to those situations where someone knows or has reason to know of a lien’s falsity, which makes the statute less vague, not more. A person who files a lien is protected from criminal sanction if he or she acted reasonably under the circumstances as to its falsity, thus allowing individuals to conform their conduct accordingly. See Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 526 (1994) (“[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice . . . that [the] conduct is proscribed.”) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)). For similar reasons, we must also reject Hoffert’s contention that § 1521’s use of a “reason to know” standard is vague because it relies on a “reasonableness” standard. “The mere fact that a penal statute is so framed as to require a jury upon occasion to determine a question of reasonableness is not 12 sufficient to make it too vague to afford a practical guide to permissible conduct.” United States v. Ragen, 314 U.S. 513, 523 (1942). 5 Finally, Hoffert argues that his conduct—in contrast to, say, espionage—is not “inherently unlawful in some way,” because filing liens is a normal part of everyday commercial activity. Reply Br. at 4–5. Hoffert’s premise is flawed—he did not just file a lien, but rather a false, retaliatory lien against federal officials—but whatever the case, this distinction is immaterial. The dispositive question for whether a statute is unconstitutionally vague is not the “inherent” lawfulness of certain conduct, but whether “reasonable persons would know their conduct puts them at risk of punishment under the statute.” Ferriero, 866 F.3d at 124. We find that nothing in the statute prevented Hoffert from knowing that his course of conduct put him at risk of punishment. Section 1521 is not vague, and any individual “desirous of observing the law will have little difficulty in determining what is prohibited by it.” Omaechevarria v. Idaho, 246 U.S. 343, 348 (1918). B. We now turn to Hoffert’s other facial challenge under the First Amendment. “In the First Amendment context, . . . a law may be invalidated as overbroad if ‘a substantial number 5 Because § 1521’s scienter requirement is clear in its language and provides a guide to conduct, Hoffert’s argument about whether the trial court erred when it instructed the jury on a “good faith” defense is irrelevant. Regardless of whether the defense is available under § 1521, the statute is not vague either way. 13 of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Ferriero, 866 F.3d at 125 (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)). A law must be “substantially overbroad” to be unconstitutional, Williams, 553 U.S. at 303, and the “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge,” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). Invalidation for overbreadth is “‘strong medicine’ that is not to be ‘casually employed.’” Williams, 553 U.S. at 293 (quoting L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)). Determining whether a statute is unconstitutionally overbroad is a two-step process. “The first step in overbreadth analysis is to construe the challenged statute,” followed by the second step of evaluating whether the statute, as construed, “criminalizes a substantial amount of protected expressive activity.” Williams, 553 U.S. at 293, 297. Section 1521’s construction is straightforward: it is illegal to file a false lien against federal officials on account of the performance of their official duties when the filer knows or has reason to know the lien is false. Section 1521 thus prohibits a relatively narrow band of activity. Although Hoffert must show § 1521 criminalizes a substantial amount of protected speech, he cites no authority or evidence to indicate that it does. 6 Indeed, there is much cutting 6 Hoffert cites Tyler v. University of Arkansas Board of Trustees, 628 F.3d 980 (8th Cir. 2011), and Augustin v. City 14 against it. “[T]he First Amendment does not shield fraud,” Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003), and we have previously remarked on the “unique problem” that false liens pose, which allow the perpetrator to “file the lien with relative ease” while requiring the victim to “go through a complicated ordeal, such as to seek judicial action, in order to remove the lien.” Monroe v. Beard, 536 F.3d 198, 209 (3d Cir. 2008) (per curiam) (rejecting First Amendment challenge to confiscation of prisoner legal materials used to file false liens). Given the fraudulent nature of false liens and the low social value of filing them, we conclude that § 1521 does not restrict a substantial amount of protected speech. III. Hoffert also challenges the sufficiency of the evidence to sustain his conviction, which we review de novo. See United States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 424–25 of Philadelphia, 897 F.3d 142 (3d Cir. 2018), in support of this argument. But Tyler involves the filing of a claim with the Equal Employment Opportunity Commission, not a false lien, and Augustin addresses municipal liens and does not involve the First Amendment. Both cases fall far short of showing § 1521 criminalizes a substantial amount of protected speech. 15 (3d Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A jury’s verdict must be upheld unless it falls below the threshold of “bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656 (2012). Hoffert’s sufficiency challenge again centers on the mens rea element of § 1521. He asserts his conviction is unsupported by the record because “[n]o witness testified and no evidence showed that Mr. Hoffert knew that the lien was false when filed.” Appellant Br. at 18. But as the trial court noted, Hoffert had engaged in an extensive course of conduct to challenge his state convictions, repeatedly ignored advice to file habeas corpus petitions, sought $7.3 billion in damages for his confinement, and even threatened to “add” the director of the Tort Branch to his administrative tort claim after it was denied. As for the lien itself, it sought $8 million from each of five federal officials under Hoffert’s calculation of criminal penalties under 18 U.S.C. § 3571, even though he conceded that only the government could seek to impose such penalties. And when asked why he filed the liens, Hoffert responded that he did not file them to recover money but rather to expedite what he perceived to be an unduly slow habeas corpus process. He even went so far as to state that he “just wanted the notoriety,” “wasn’t looking to get any type of monetary value out of anything,” and “just wanted to show that we’re still being held without the proper paperwork.” App’x 220. Given the circumstantial evidence of Hoffert’s intentions and his own admissions at trial about his mental state, we conclude that the jury could have rationally concluded that Hoffert filed the liens “knowing or having reason to know that such lien[s] or encumbrance[s] [were] false.” 18 U.S.C. § 1521; see also Caraballo-Rodriguez, 726 16 F.3d at 432 (“Unless the jury’s conclusion is irrational, it must be upheld.”). Accordingly, we will not disturb the jury’s verdict. IV. For the foregoing reasons, we will affirm the trial court’s judgment of convictions and sentences. 17	{ "pile_set_name": "FreeLaw" }
372 F.3d 420 INDEPENDENT EQUIPMENT DEALERS ASSOCIATION, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.Engine Manufacturers Association, Intervenor. No. 03-1020. United States Court of Appeals, District of Columbia Circuit. Argued February 10, 2004. Decided June 25, 2004. On Petition for Review of an Order of the Environmental Protection Agency. William R. Weissman argued the cause for petitioner. On the briefs were LeAnn M. Johnson-Koch and James P. Rathvon. Laurel A. Bedig, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Michael J. Horowitz, Attorney, U.S. Environmental Protection Agency. Jed R. Mandel and Timothy A. French were on the brief for intervenor. Before: ROGERS, GARLAND, and ROBERTS, Circuit Judges. Opinion for the Court filed by Circuit Judge ROBERTS. ROBERTS, Circuit Judge: 1 Petitioner Independent Equipment Dealers Association (IEDA) is a trade association of independent dealers of heavy construction and industrial equipment, such as cranes, large forklifts, and generators. IEDA dealers are "independent" in the sense that they are not affiliated with any manufacturer. In December 2002, IEDA wrote to EPA seeking EPA's concurrence in its interpretation of emissions regulations pertaining to "nonroad engines" — engines used in such heavy construction and industrial equipment. See generally 40 C.F.R. pt. 89. Four weeks later, EPA replied that it did not concur in IEDA's proffered interpretation. IEDA then filed this petition for review claiming that EPA, by its letter, had substantively amended its regulations concerning nonroad engines, and in so doing had failed to comply with the notice-and-comment requirements of Section 307(d) of the Clean Air Act, 42 U.S.C. § 7607(d)(3). IEDA alternatively contends that EPA's letter violated the Clean Air Act's prohibition on agency action that is arbitrary or capricious.. See id. § 7607(d)(9)(A). We conclude that we lack jurisdiction and accordingly dismiss the petition for review. I. 2 Since 1996, EPA has regulated nonroad engines by requiring their manufacturers to obtain a "certificate of conformity" indicating compliance with EPA emissions standards before selling such engines or importing them into the United States. 40 C.F.R. §§ 89.105, 89.1003(a)(1); see also 42 U.S.C. § 7547(a) (authorizing regulation of nonroad engines); id. § 7522(a)(1) (prohibiting the sale, distribution, or importation of any uncertified new motor vehicle engine). Manufacturers are not required to obtain certificates of conformity for each individual engine or engine model, but rather for each "engine family." 40 C.F.R. § 89.105. EPA defines an engine family as a group of engines "expected to have similar emission characteristics throughout their useful life periods" — a categorization based on the design and emissions characteristics of the engines. Id. § 89.116. The application for the certificate of conformity must include "[a]n unconditional statement certifying that all engines in the engine family comply with all requirements of this part [40 C.F.R. pt. 89] and the Clean Air Act." Id. § 89.115(d)(10). Those requirements include not only the emissions specifications, but also recall liability, see id. § 89.701 et seq., emissions defect reporting requirements, see id. § 89.801 et seq., and warranty obligations, see id. § 89.1007. Manufacturers are also subject to "selective enforcement auditing" — emissions testing at the assembly line or, for engines manufactured abroad, at the point of importation. See id. § 89.503. 3 In furtherance of this regulatory regime, EPA also requires manufacturers to affix to each new engine an "emission control information label" that identifies the engine and states that it conforms to all EPA emissions standards and regulations. Id. § 89.110, (b)(10); see also id. § 89.1003(a)(4)(ii) (prohibiting sale or delivery of engine without emission control label affixed). On a practical level, this engine label demonstrates to dealers, purchasers, and enforcement inspectors that the engine is covered by an EPA certificate of conformity. Unlabeled engines are presumed to be uncertified. See OFFICE OF REGULATORY ENFORCEMENT, U.S. ENVTL. PROT. AGENCY, ENFORCEMENT ALERT: EPA STEPS UP ENFORCEMENT OF DIESEL, GASOLINE NONROAD ENGINE IMPORTS (Vol. 3, No. 2, Feb. 2000) (Enforcement Alert). 4 Many nonroad engines are manufactured outside the United States. Engines covered by a certificate of conformity may be imported into the United States subject only to ordinary customs regulations. Engines not covered by a manufacturer's certificate of conformity may only be imported if they comply with EPA's Independent Commercial Importers (ICI) program. 40 C.F.R. § 89.601 et seq. The chief burden associated with the ICI program is that after the importer has obtained a certificate of conformity for the engine family, the importer still must test one of every three imported engines for compliance with Part 89 emissions regulations. According to EPA, each test costs between $15,000 and $30,000, depending on the engine. EPA Br. 9. Additionally, since it is the importer, not the manufacturer, who obtains a certificate of conformity for the engines, all other Part 89 requirements — labeling, recall and warranty, etc. — run to the importer rather than the manufacturer. See 40 C.F.R. § 89.610. The ICI importer thus steps into the shoes of the manufacturer, assuming all the obligations that would ordinarily fall upon the manufacturer. 5 The market for nonroad engines in the United States is segmented between original engine manufacturers (OEMs), who sell the equipment they manufacture through networks of authorized dealers, and independent equipment dealers, who are not affiliated with an OEM. Independent dealers make their way in the market by re-selling equipment, frequently at lower prices than the OEMs. The collapse of the Asia-Pacific Rim economy in the late 1990s offered a unique opportunity to enterprising independent equipment dealers. In the deeply distressed Asian construction market, equipment distributors found themselves with bloated inventories and few prospects of selling that equipment locally. Sensing an arbitrage opportunity, some U.S. independent dealers bought equipment at depressed prices in Asia, and then imported the equipment into the United States. Of course, the Asian equipment could be legally imported only if it were covered by a manufacturer's certificate of conformity or had been taken through the costly and time-consuming ICI process. Few independent dealers availed themselves of the ICI program; the lack of significant EPA enforcement of Part 89 regulations made importation of uncertified equipment a much more lucrative path. 6 The importation of low-priced Asian equipment — EPA-certified and otherwise — by independent dealers into the United States market had the predictable effect of undermining the pricing power of the OEMs in the United States. OEMs have a difficult time selling a machine for $50,000 when an independent dealer is selling the identical machine for $35,000, having purchased it in Korea for $20,000. 7 The OEMs appealed to EPA for increased enforcement of Part 89 regulatory requirements. In November 1998, EPA and the Associated Equipment Distributors, a trade association of authorized dealers, hosted a workshop to explain the Part 89 requirements as they pertained to imported engines. At the workshop, EPA vowed to enforce the regulations, and the Customs Service explained that it would impound any engine lacking an EPA emissions control information label. See Christian A. Klein, GRAY MARKET CRACKDOWN: EPA & CUSTOMS LAY DOWN THE LAW, CONSTR. EQUIP. DISTRIBUTION, Jan. 1999. 8 EPA followed up in February 2000 with an Enforcement Alert announcing its intention to increase enforcement of certificate of conformity and emission control information label requirements with regard to imported nonroad engines. See Enforcement Alert. In that document, EPA emphasized that all engines imported into the U.S. must be covered by a certificate of conformity and must bear an EPA-compliant emissions control information label. Id. at 1. In a "Fact and Fiction" segment, EPA also cautioned that many engines obtained overseas were not eligible for importation: 9 Fiction: An uncertified engine having similar or even identical emission characteristics as a certified engine should be able to be imported. 10 Fact: Manufacturers may produce engines that are identical to U.S. certified versions but the engines are not intended for the U.S. market. These engines are not certified and may not be imported unless they are produced under an EPA-issued certificate, [and] are properly labeled.... 11 Id. at 3. 12 EPA soon reiterated this position in response to an inquiry from authorized dealers. OEMs asked whether manufacturers could adopt a program of destination-specific labeling of engines, thereby indicating which engines are and which are not covered by a certificate of conformity. EPA responded that "[t]he manufacturer is not only allowed to place a destination-specific label on a non-certified engine intended for sale elsewhere than the United States, but also is encouraged to do this." See Letter from Robert M. Doyle, EPA Attorney-Advisor, Certification and Compliance Division, Office of Transportation and Air Quality, to Julie R. Domike, Esq. 1 (Nov. 21, 2000). EPA explained that 13 the key distinction for imported engines ... is whether the manufacturer intended the engine to be covered by a certificate or not to be covered by a certificate.... 14 In your scenario, the manufacturer has chosen, for whatever reason, to not include under certificate coverage the engines intended for sale elsewhere than the U.S., and so it will not place the EPA required emission label on the engines. This step is correct. 15 Id. at 2. 16 EPA was even more explicit in its 2001 response to an inquiry from an engine manufacturer. There EPA wrote, "[m]anufacturers also may choose ... to produce engines which will not be covered by an EPA certificate, because they will be sold elsewhere than the U.S.," even though "[t]hese non-certified engines may be physically identical to engines which the manufacturer chooses to be covered by an EPA certificate." Letter from John Guy, EPA Manager, Engine Programs Group, Certification and Compliance Division, to Jonathan S. Martel, Esq. 1 (July 6, 2001). 17 The OEMs then — with EPA's blessing — took the position that only those engines they intended to import into the United States were covered by EPA certificates of conformity, and began affixing EPA emissions control labels only to those engines. This had the desired effect; independent dealers seeking access to the United States market were left only with the much less attractive option of importing uncertified machines through the ICI process, even though many of those engines — according to IEDA — were identical in all respects to engines to which OEMs had affixed labels. 18 IEDA believes this destination-specific labeling program violates EPA's Part 89 regulations. IEDA wrote to EPA to raise the question of whether "engines that are `identical' to an EPA certified version can be designated `uncertified' by the engine manufacturer under the regulations at 40 C.F.R. Part 89." Letter of LeAnn M. Johnson-Koch to Christine Todd-Whitman, EPA Administrator 1 (Dec. 23, 2002) (IEDA Letter). IEDA stated its view that because certificates of conformity apply to "engine families and not to individual engines," and because "the engine family is defined by its physical characteristics," "all engines that have the same physical characteristics... are covered by the certificate of conformity issued to the engine family." Id. IEDA sought EPA's concurrence in this conclusion and also IEDA's view that all manufacturers' Part 89 obligations, including warranty, recall, and defect reporting requirements, and, crucially, the emissions control information label requirement, apply to all such covered engines. Id. at 2. 19 EPA responded that it did not concur in IEDA's interpretation of the Part 89 regulations. See Letter from Margo Tsirigotis Oge, EPA Director, Office of Transportation and Air Quality, to LeAnn M. Johnson-Koch, Esq. 1 (Jan. 21, 2003) (EPA Letter). EPA stated that "[n]either the Clean Air Act [n]or our regulations impose [Part 89] requirements on engines that the manufacturer did not introduce or intend for introduction into U.S. commerce." Id. It explained that the "requirement to divide a `manufacturer's product line' into engine families in 40 CFR 89.116 refers to that portion of the product line intended for sale in the U.S." Id. at 2. Thus, contrary to IEDA's interpretation, a manufacturer was empowered to " identify which of its engines are covered by its certificate of conformity and which are not." Id. This identification was typically accomplished, said EPA, through the affixing (or not) of the emissions control information label. Id. 20 Unsatisfied with that response, IEDA filed the instant petition for review. II. 21 IEDA contends that the EPA Letter adds a manufacturer "intent" element to the definition of an "engine family," and thus substantively amends the Part 89 regulations — specifically 40 C.F.R. § 89.116 — without satisfying the notice-and-comment requirements of the Clean Air Act. See 42 U.S.C. § 7607(d)(3). Alternatively, IEDA claims that the EPA Letter violates the Act's prohibition on regulation that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 7607(d)(9)(A). 22 We recently confronted a factually similar case in General Motors Corp. v. EPA, 363 F.3d 442 (D.C.Cir.2004). There, General Motors petitioned for review of a letter from an EPA enforcement official containing a regulatory interpretation that certain automobile manufacturing solvents were "solid waste" under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. General Motors sought review under RCRA's judicial review provision, 42 U.S.C. § 6976(a), alleging the agency letter unlawfully promulgated a final regulation without satisfying the notice-and-comment requirements of the Administrative Procedure Act, 5 U.S.C. § 553. We found that the letter in question "reflect[ed] neither a new interpretation nor a new policy," but rather reiterated an interpretation that had been stated as early as 1997, and repeated without change on several occasions since. General Motors, 363 F.3d at 449. We thus concluded that EPA's letter did not amount to a final regulation. As our jurisdiction under RCRA is limited to the review of "final regulations, requirements, and denials of petitions to promulgate, amend or repeal a regulation," id. at 448 (quoting Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C.Cir.1999)) (internal quotation marks omitted); see also 42 U.S.C. § 6976(a), we dismissed General Motors' petition for lack of jurisdiction. 23 This holding would seem to raise a serious impediment to IEDA's substantive claims for relief. Here, we are presented with a virtually identical notice-and-comment challenge to an EPA letter, this time under the Clean Air Act. See 42 U.S.C. § 7607(d)(3). The notice-and-comment obligations under that Act apply, however, only if the EPA Letter constitutes a "promulgation or revision of any regulation pertaining to nonroad engines," id. § 7607(d)(1)(R). See, e.g., American Forest & Paper Ass'n v. EPA, 294 F.3d 113, 116 n. 3 (D.C.Cir.2002); Western Oil & Gas Ass'n v. EPA, 633 F.2d 803, 812 (9th Cir.1980) ("Section 7607(d) meticulously enumerates a list of actions to which its substantive provisions apply and expressly abrogates the review provisions of the APA only with respect to those actions."). As demonstrated above, the so-called intent requirement reflected in EPA's letter to IEDA is hardly new. EPA had publicly announced its interpretation of the certificate of conformity requirement no later than February 2000, when it labeled as "Fiction" the position IEDA presses before us now — that "[a]n uncertified engine having similar or even identical emission characteristics as a certified engine should be able to be imported." Enforcement Alert at 3. The "Fact," according to EPA, was that "[m]anufacturers may produce engines that are identical to U.S. certified versions but the engines are not intended for the U.S. market. These engines are not certified...." Id. Nearly three years later, EPA's letter to IEDA stated only that "[a] manufacturer... can properly identify which of its engines are covered by its certificate of conformity and which are not." EPA Letter at 2. The EPA Letter thus reflects no change in the position announced in the Enforcement Alert. 24 Just as in General Motors, because the January 2003 EPA Letter does not reflect any change in EPA's Part 89 regulations or its interpretation of those regulations, it is difficult to see how that letter "promulgat[ed] or revis[ed] ... any regulation pertaining to nonroad engines." 42 U.S.C. § 7607(d)(1)(R); see also Natural Res. Def. Council v. EPA, 902 F.2d 962, 982 (D.C.Cir.1990) (separate opinion of Wald, J.) ("The word `promulgate' in the CAA refers only to the original issuance of a standard, while the word `revision' refers to subsequent modifications of that standard."), vacated on other grounds, 921 F.2d 326 (D.C.Cir.1991). Unlike the situation in General Motors, though, this conclusion would go to the merits of IEDA's claims for relief; it would not be dispositive of our jurisdiction. In contrast to RCRA — where jurisdiction is limited to "final regulations," 42 U.S.C. § 6976(a) (emphasis added) — we have jurisdiction under the Clean Air Act to review "any ... nationally applicable regulations promulgated, or final action taken, by the Administrator." Id. § 7607(b) (emphasis added). 25 Both EPA and Intervenor-Respondent Engine Manufacturers Association have raised numerous challenges to our jurisdiction over IEDA's petition for review, among them that the EPA Letter does not constitute "final action" within the meaning of the judicial review provision of the Act, id. § 7607(b). See EPA Br. 16-26; EMA Br. 8-10. As we are a court of limited jurisdiction, we are obliged to consider these jurisdictional objections before addressing the merits of IEDA's substantive claims. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-102, 118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998). 26 At the outset, we observe that EPA's claim that its letter does not constitute "final action" seems somewhat inartful in view of its concurrent insistence that the interpretation of the certificate of conformity regulations contained therein is final and not subject to change. See Recording of Oral Arg. of Laurel A. Bedig, Counsel for EPA, at 15:22 (Question: "You're not ever going to change your view about this, at least in the near term. Right? This is your view. This is your view of what the regulation has always been — what it was at the time of the Alert, and what it was at the time of the Letter? Right?" Answer: "Correct." Question: "So the agency's view is not in process here?" Answer: "Absolutely not."); id. at 17:55 (Question: "This is not going to change. The view is not going to change. It's not tentative. You say that it's not the culmination of an agency process but that's just because that process culminated long ago." Answer: "That's right."). 27 This line of argument becomes more understandable when one considers the dual requirements for "final agency action": (1) that the action be final — i.e., not tentative or interlocutory; and (2) that the action be one from which "rights or obligations have been determined" or from which "legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 1168, 137 L.Ed.2d 281 (1997) (internal quotation omitted). The Government's brief makes clear that its underlying objection is not so much to the first element — concerning finality — as it is to the second — concerning the types of agency action suitable for review. EPA's brief does not assert that its interpretation is tentative or interlocutory; it does, however, forcefully argue that the EPA Letter is legally insignificant. See, e.g., EPA Br. 18 (EPA Letter "do[es] not relate to a specific enforcement action or case pending before the Agency, do [es] not contain any mandatory language or directives, and do[es] not describe [itself] as guidance or announce that [it] contain[s] new interpretations of the regulations"); id. at 21 ("[T]he EPA Letter lacks any indicia of a reviewable agency action. The letter does not purport to impose new obligations on IEDA.... No legal consequences flow from it, and it inflicts no injury on IEDA or its members."). So rather than ask — awkwardly — whether an interpretation the parties agree is not subject to change is final, we instead frame our inquiry as whether the EPA Letter setting out that interpretation constitutes reviewable agency action. 28 In answering that question, we start with the acknowledgment that the term "agency action" undoubtedly has a broad sweep. See, e.g., FTC v. Standard Oil Co. of California, 449 U.S. 232, 238 n. 7, 101 S.Ct. 488, 492 n. 7, 66 L.Ed.2d 416 (1980); Whitman v. American Trucking Ass'ns, 531 U.S. 457, 478, 121 S.Ct. 903, 915, 149 L.Ed.2d 1 (2001). But we also have long recognized that the term is not so all-encompassing as to authorize us to exercise "judicial review [over] everything done by an administrative agency." Hearst Radio, Inc. v. FCC, 167 F.2d 225, 227 (D.C.Cir.1948). Here, common sense, basic precepts of administrative law, and the Administrative Procedure Act itself all point to the conclusion that the EPA Letter to IEDA is not reviewable agency action. 29 The answer seems obvious once we examine the concrete impact the EPA Letter had on IEDA and its members — in short, none whatsoever. As discussed above, the EPA Letter merely restated in an abstract setting — for the umteenth time — EPA's longstanding interpretation of the Part 89 certificate of conformity regulations. The Letter neither announced a new interpretation of the regulations nor effected a change in the regulations themselves. The Letter was purely informational in nature; it imposed no obligations and denied no relief. Compelling no one to do anything, the letter had no binding effect whatsoever — not on the agency and not on the regulated community. It was, as EPA describes it, "the type of workaday advice letter that agencies prepare countless times per year in dealing with the regulated community." EPA Br. 18. At oral argument, counsel for IEDA appeared to concede that such a letter, unless it wrought a regulatory change, would be an insufficient basis for jurisdiction. See Recording of Oral Arg. of William R. Weissman, Counsel for IEDA, at 13:45 (Question: "And ... if we thought that there was no change in the rule?" Answer: "Well, if there was no change, then presumably we should have appealed in `94. I don't quarrel with that."). 30 That concession is in accordance with our prior decisions. We have held that we lacked authority to review claims where "an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party." AT&T v. EEOC, 270 F.3d 973, 975 (D.C.Cir.2001); see also DRG Funding Corp. v. HUD, 76 F.3d 1212, 1214 (D.C.Cir.1996) (holding unreviewable an agency order that "does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action" (internal quotation omitted)). Similarly, we have held often enough that when an "agency has not yet made any determination or issued any order imposing any obligation..., denying any right..., or fixing any legal relationship," the agency action was not reviewable. Reliable Automatic Sprinkler Co., v. CPSC, 324 F.3d 726, 732 (D.C.Cir. 2003) (citing Role Models Am., Inc. v. White, 317 F.3d 327, 331-32 (D.C.Cir.2003)); see also id. (agency action not reviewable when "[n]o legal consequences flow from the agency's conduct" and "there has been no order compelling [the regulated entity] to do anything"). "[P]ractical consequences," such as the threat of "having to defend itself in an administrative hearing should the agency actually decide to pursue enforcement," are insufficient to bring an agency's conduct under our purview. Id. 31 Moreover, our "reopening doctrine" specifically spells out the circumstances when an agency's discussion of its existing regulations can ripen into an "opportunity for renewed comment and objection" to those regulations. Ohio v. EPA, 838 F.2d 1325, 1328 (D.C.Cir.1988). Implicit in the very concept of a reopening doctrine is the notion that regulations and interpretations that have not been reopened by agency action remain at repose and are not newly reviewable. This, of course, makes good sense. Just as it would be folly to allow parties to challenge a regulation anew each year upon the annual re-publication of the Code of Federal Regulations, so too it is silly to permit parties to challenge an established regulatory interpretation each time it is repeated. Such a regime would quickly muzzle any informal communications between agencies and their regulated communities — communications that are vital to the smooth operation of both government and business. 32 Finally, the conclusion that the EPA Letter is not reviewable agency action draws support from the text of the Administrative Procedure Act. While this case is brought only under the Clean Air Act — IEDA raised no alternative APA arguments in its petition for review — the term "final action" is synonymous with the term "final agency action" as used in Section 704 of the APA. See American Trucking Assn's, 531 U.S. at 478, 121 S.Ct. at 915. Under the APA, "agency action" is a defined term, limited to an "agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). Of all these types of agency action, IEDA has alleged only that the EPA Letter constitutes a "rule." See Pet. Br. 19-20 (arguing EPA Letter revised the Part 89 regulations pertaining to nonroad engines by promulgating an "Intent Rule"). Leaving nothing to chance, the APA also defines a "rule" as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy...." 5 U.S.C. § 551(4). Although the EPA Letter is certainly a statement of "general or particular applicability" — what isn't? — and is arguably of "future effect" insofar as it may inform the future conduct of IEDA's members, the EPA Letter certainly does not "implement, interpret, or prescribe law or policy." By restating EPA's established interpretation of the certificate of conformity regulation, the EPA Letter tread no new ground. It left the world just as it found it, and thus cannot be fairly described as implementing, interpreting, or prescribing law or policy. Cf. Industrial Safety Equip. Ass'n v. EPA, 837 F.2d 1115, 1120-21 (D.C.Cir.1988) (agency statements that did not "change any law or official policy presently in effect" did not constitute a "rule" under the APA). 33 Our conclusion that the EPA Letter is not reviewable agency action means that we lack jurisdiction to consider the merits of IEDA's substantive claims under the Act. See 42 U.S.C. § 7607(b). This conclusion obviates the necessity of considering the Government's and the Intervenor's other jurisdictional arguments. See Fourth Branch Assocs. (Mechanicville) v. FERC, 253 F.3d 741, 745 (D.C.Cir.2001) ("we have no trouble dismissing a claim based on one jurisdictional bar rather than another") (internal quotation omitted). 34 The petition for review is dismissed for lack of jurisdiction.	{ "pile_set_name": "FreeLaw" }
31 Ill. App.3d 679 (1975) 334 N.E.2d 774 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEMENT DENTLEY, Defendant-Appellant. No. 12670. Illinois Appellate Court Fourth District. September 4, 1975. Richard J. Wilson and Bruce Stratton, both of State Appellate Defender's Office, of Springfield, for appellant. Richard J. Doyle, State's Attorney, of Danville (G. Michael Prall and Jacqueline K. Nejmanowski, both of Illinois State's Attorneys Association, of counsel), for the People. Judgment affirmed. Mr. JUSTICE CRAVEN delivered the opinion of the court: Clement Dentley and William Logan were indicted for the offenses of rape, deviate sexual assault, and robbery. Logan was acquitted on all counts, while Dentley was acquitted of deviate sexual assault and robbery, but convicted of rape and sentenced to not less than 10 nor more than 30 years in the Illinois State Penitentiary. He appeals, contending that the trial court erred in denying his motion for appointment of a psychiatrist 680 to examine the complaining witness and abused its discretion in imposing a sentence in excess of the statutory minimum. At trial, Janet Donaldson testified that on July 21, 1973, she attempted to hitch a ride to downtown Champaign with Dentley and Logan, but was taken instead to a rural area of Vermilion County. Donaldson described both defendants in some detail and identified them at trial. When the car came to a stop, she made an attempt to escape, but was intercepted by the defendant, who threw her to the ground, fracturing her shoulder. The defendant displayed a knife and ordered her to perform an act of fellatio; when she hesitated, he angrily pulled her down by the hair and she cooperated. Subsequently, she was ordered into the car and ordered to perform another act of fellatio on the defendant while Logan had vaginal intercourse with her. During this activity, the defendant put his hands around her neck and began to strangle her, leaving scratch marks, and hit her in the face and head with his fist. Finally, he displayed a machete and forced her to have both vaginal and anal intercourse with him. She was at last let out of the car with a warning from defendant that if she told anyone, he would get his gang to burn down her family's home. Donaldson walked to the highway and flagged down a truck. The driver testified at trial that he had been stopped by a woman standing in the middle of the road who was hysterical and cried, "I have been raped. I need help." She had no shoes on, no undergarments, and had mud and blood on her. She told the driver her head hurt. A deputy at the Vermilion county jail, where the truck driver brought Donaldson, corroborated the driver's description of her hysteria and physical appearance. He also noted that she was crying and had scratch marks on her neck. A hospital emergency room examination revealed sperm and lacerations of the vaginal wall, as well as a fractured clavicle. Prior to trial, the State was granted a continuance on the basis of a motion supported by an affidavit stating that the complaining witness was unavailable for trial because of various hospitalizations and out-patient treatment. Included was a letter from her doctor, to the effect that she had been under psychiatric care for about 8 years for major psychotic disturbances, and that a trial at that time would be detrimental to her mental state. In response to this motion, defendant filed a motion for appointment of a psychiatrist to examine Donaldson, noting the difficulty of calling her out-of-state doctor and alleging the need for competent local evaluation of her mental state. The defendant's motion was continued by the court until trial. When the case finally came to trial on January 15, 1974, the 23-year-old complaining witness testified that she had been receiving treatment for 681 hallucinations and paranoia since she was 15. She admitted to various hospitalizations because of her mental problems, both before and after the incident in question. She testified that she could always distinguish the hallucinations, which took the form of faint voices emanating from inanimate objects, from reality. After this testimony, the defendant renewed his request for psychiatric examination, and the trial court denied that request. 1 There is no question of the court's jurisdiction to order an examination of the complaining witness in a case involving a sex violation. (People v. Glover, 49 Ill.2d 78, 273 N.E.2d 367; People ex rel. Noren v. Dempsey, 10 Ill.2d 288, 139 N.E.2d 780.) Nevertheless, the court is within its discretion to refuse to order a psychiatric examination when the party desiring such an order has presented no compelling need therefor. Glover; People v. Powell, 9 Ill. App.3d 722, 292 N.E.2d 577. In the instant case, the complaining witness took the stand and freely discussed her mental problems. The defendant introduced no evidence at trial or in the papers accompanying his motion for an examination to indicate that the witness' mental condition affected her ability or willingness to tell the truth. Moreover, there was substantial corroboration of Donaldson's testimony by persons who viewed her shortly after the incident, and by the physical examination revealing the fractured clavicle, scratch marks, lacerated vaginal walls, and the presence of sperm in the vagina. A knife and machete were found in defendant's car after his arrest, as described by the complaining witness. Thus, this is not a case where the defendant's freedom hinges on the uncorroborated testimony of a doubtful witness. We find the trial court to have been within its discretion in refusing to order a psychiatric examination. 2 Defendant next contends that the circumstances of the case did not justify imposition of a greater than minimum sentence. The evidence was that this was a particularly brutal attack, involving not only the threat with both knife and machete, but also the injury to Donaldson's shoulder, blows to her head, and attempted strangulation. While the defendant had no prior felony convictions, his record reflected numerous minor convictions for fighting, public intoxication, and misuse of weapons. The presentence report was not one to spark hope of quick rehabilitation. We cannot say that the 10- to 30-year sentence is greatly at variance with the purpose or spirit of the law, or manifestly in excess of the proscriptions of the Illinois Constitution. (People v. Sprinkle, 56 Ill.2d 257, 307 N.E.2d 161.) Accordingly, we affirm the trial court. Judgment affirmed. TRAPP, P.J., and GREEN, J., concur.	{ "pile_set_name": "FreeLaw" }
185 Cal.App.3d 415 (1986) 229 Cal. Rptr. 750 THE PEOPLE, Plaintiff and Respondent, v. RALPH MONTERO, Defendant and Appellant. Docket No. D003482. Court of Appeals of California, Fourth District, Division One. September 10, 1986. 422 COUNSEL Handy Horiye, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, M. Howard Wayne and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent. OPINION BUTLER, J. Ralph Montero was convicted by a jury of five counts of forcible rape (Pen. Code,[1] § 261, subd. (2)), five counts of unlawful sexual intercourse (§ 261.5) and one count of committing a lewd and lascivious act upon Marianna D., a child under 14 years of age (§ 288, subd. (b)). The jury hung on a forcible rape charge involving Marianna's sister Christina. The court declared a mistrial as to that count and dismissed it on the prosecution's motion in the interests of justice (§ 1385). The judge sentenced Montero to a 30-year prison term. Montero appeals, contending there was insufficient evidence to support the forcible rape convictions, improper multiple convictions, instructional error, and sentencing error. We affirm. I At trial, Marianna testified to five separate acts of sexual abuse by Montero. The first act occurred in 1981 when she was 13 years old and lived in Brawley, California, with her mother, brother, two sisters and Montero. At that time, Marianna shared an upstairs bedroom with her two sisters. Early in the morning of December 20, 1981, Montero came into the bedroom and shook Marianna awake. He told her to take off her clothes 423 but she refused. Montero then removed her clothing as well as his own. Marianna called out to her sister, who was asleep in the same room. Montero put his penis inside her vagina which hurt her. She was afraid of Montero. The next act occurred in the early morning of October 15, 1982. Montero again entered Marianna's bedroom, woke her up and told her to take off her clothes. Marianna said she was too tired. Montero told her she always had excuses and proceeded to undress her. She told him not to take her clothes off and called out to her sister. Montero called Marianna dirty names and finished undressing her. He took his clothes off and put his penis inside her vagina. She felt pain and was afraid of Montero. The last three incidents happened in the latter part of September 1984. On September 18, 1984, and again on September 19, 1984, Marianna was alone in her bedroom when Montero shook her awake and began taking off her clothes. On the 18th, she cried when he put his penis inside her vagina and told him she did not want him to do that. On the 19th, she called out to her mother. Montero called Marianna names as he took her clothes off and put his penis inside her vagina. She did not want him doing that. On September 21, 1984, the same sequence of events happened: Montero awakened Marianna, started taking off her clothes, argued with her about what he was doing, took off his own clothes and placed his penis inside her vagina. This time he said she was like her sisters and that she should not have come back. Each of these acts hurt Marianna and she testified she was afraid of Montero during each incident. On cross-examination, Marianna testified that on December 20, 1981, Montero held her down when she tried to get up and squeezed her hand when she tried to scratch him. She called out to her sister three times. She reiterated her direct testimony concerning the other dates and explicitly stated she struggled and called out to her mother during the September 21, 1984 incident. Asked if Montero put his penis at the entrance of her vagina rather than in her vagina during each alleged act, Marianna replied, "I don't know." When further pressed for an answer, Marianna said "at the entrance." Dr. Patricia Shreves then testified she performed a pelvic examination of Marianna September 28, 1984. Shreves observed Marianna's hymen was intact but the area around her urethra, inside the labia area of the vagina, was swollen and bruised. Shreves opined something had been done to the area on a constant basis, indicating it had been traumatized over a period of time. 424 II (1a) Montero contends there was insufficient evidence to support the forcible rape convictions. Specifically, he claims there was no proof of fear of immediate and unlawful bodily injury in any of the five separate incidents and no showing of physical force substantially different than that necessary to accomplish the acts themselves.[2] (2) When the sufficiency of the evidence is challenged, we must review the entire record in the light most favorable to the judgment so as to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577 [162 Cal. Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Substantial evidence must support each essential element of an offense. (Id., at p. 577.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury's verdict unless it is clearly shown there is no basis on which the evidence can support the conclusion of the jury. (People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321].) The credibility of witnesses and the weight to be accorded to the evidence are matters to be determined by the trier of fact. (Evid. Code, § 312; People v. Thornton (1974) 11 Cal.3d 738, 754 [114 Cal. Rptr. 467, 523 P.2d 267], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal. Rptr. 84, 603 P.2d 1].) (1b) As amended in 1980, section 261, subdivision (2) makes criminal any act of sexual intercourse accomplished with a person not the spouse of the perpetrator where it is accomplished against that person's will by means of force or fear of immediate and unlawful bodily injury on the person or another. (3), (1c) The amended section deletes earlier provisions relating to the element of resistance connected with force, violence or threats (see People v. Salazar (1983) 144 Cal. App.3d 799, 807 [193 Cal. Rptr. 1]), and makes it clear rape may be committed by acts causing only fear of immediate bodily injury to the victim or another and no longer requires threats of imminent harm (People v. Bermudez (1984) 157 Cal. App.3d 619, 624 [203 Cal. Rptr. 728]). Under earlier law, forcible rape required an accused employ that degree of force necessary under the circumstances to overcome the victim's resistance. 425 (People v. Wheeler (1977) 71 Cal. App.3d 902, 907 [139 Cal. Rptr. 737].) However, the "victim need only make such resistance as [would] reasonably manifest ... refusal to consent to the act." (People v. Hunt (1977) 72 Cal. App.3d 190, 194 [139 Cal. Rptr. 675].) And in deciding whether a defendant's acts upon a victim were accomplished by force or fear, verbal threats were not crucial to conviction they could be inferred from conduct or implied from the circumstances. (People v. La Salle (1980) 103 Cal. App.3d 139, 148 [162 Cal. Rptr. 816].) "Although resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or nonverbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction under section 261, subdivision (2). [Citations.] Additionally, the [victim's] conduct must be measured against the degree of force manifested or in light of whether her fears were genuine and reasonably grounded.... [T]he trier of fact `should be permitted to measure consent by weighing both the acts of the alleged attacker and the response of the alleged victim, rather than being required to focus on one or the other.' [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 304 [228 Cal. Rptr. 228, 721 P.2d 110].) "Because the fundamental wrong [in rape] is the violation of a [victim's] will and sexuality, ... `force' plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been taken against a victim's will." (People v. Cicero, supra, 157 Cal. App.3d 465, 475.) Moreover, since 1980, only fear of immediate bodily injury need be shown. (4) Fear generally has two common meanings: (1) "A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension" (American Heritage Dict. (1981) p. 480) and (2) "Extreme reverence or awe, as toward a supreme power" (ibid.). (1d) Here, the victim was a child of 13, 14 and 16 at the time of the respective acts. Montero lived in the victim's house with her mother, apparently in a type of stepfather relationship with Marianna. Each act took place in the nighttime with Montero shaking Marianna awake, taking off her clothes after she refused to do so, and admittedly performing the sexual acts without her consent. Marianna testified she was afraid of Montero, cried out for help, and was hurt by the acts he performed. Expert testimony confirmed Marianna suffered physical bruising and swelling and that her vaginal area had been traumatized over a period of time. While the record could have been more explicit on Marianna's fear and the amount of force involved, in light of all the circumstances present, i.e., Marianna's tender age, the position of apparent authority held by Montero, 426 the ongoing and continuous exploitation of a resisting and defenseless Marianna awakened in the middle of the night, we find substantial evidence of force and fear from which the jury could find beyond a reasonable doubt Marianna was in fear of immediate and unlawful bodily injury and Montero committed the acts with force. (See People v. Jones (1984) 155 Cal. App.3d 153, 173 [202 Cal. Rptr. 162]; People v. Reyes (1984) 153 Cal. App.3d 803, 810-811 [200 Cal. Rptr. 651].) III (5a) By way of footnote, Montero additionally claims he had ineffective assistance of counsel because his counsel on cross-examination of Marianna elicited evidence concerning the December 20, 1981 and September 21, 1984, incidents showing more fully Montero used force. Without such evidence, he argues, there would be insufficient evidence to support the December 20, 1981 and September 21, 1984, forcible rape convictions. (6) The burden of proving ineffective assistance of counsel is on defendant. He must show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, which failure resulted in the withdrawal of a potentially meritorious defense (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]), or that it is reasonably probable a more favorable result would have occurred in the absence of counsel's alleged failure (People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal. Rptr. 855, 659 P.2d 1144]). (7) Our review is limited to the record before us as Montero has not filed a corresponding petition for habeas corpus. (See People v. Pope, supra, 23 Cal.3d at pp. 426-427, fn. 17; People v. Apodaca (1978) 76 Cal. App.3d 479, 489, fn. 3 [142 Cal. Rptr. 830].) (5b) The record is totally silent as to the exact reasons defense counsel cross-examined Marianna in the manner he did. From closing argument though, it appears Montero's strategy was to argue there was no evidence to establish the element of penetration for rape and Marianna was an inherently unbelievable witness. Consequently, counsel's attempt to have Marianna clarify what happened during the five incidents was what any reasonably competent attorney would have done. Through his cross-examination, he did get Marianna to admit Montero merely placed his penis against her vagina and not in it, and elicited other contradictions in her testimony. Regardless, we have found sufficient evidence in the record absent the testimony elicited by defense counsel on the December 20, 1981 and September 21, 1984, incidents to show force and fear. Thus, even assuming incompetence of counsel, it is not probable a more favorable result would 427 occur on remand in the absence of the evidence adduced on cross-examination. (People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243].) IV Claiming reversible error, Montero next attacks jury instructions given as improper and maintains other instructions should have been given. He specifically contends the court erred in giving a consent instruction under section 261.6 for the offenses occurring before the enactment of that section, and erred by failing to instruct sua sponte the jury was to recommend punishment for the December 20, 1981, statutory rape count, on the reasonable belief in consent to the commission of a lewd act under section 288, subdivision (b), and on the definition of force for the forcible rape and lewd conduct counts. We state familiar rules for our discussion. (8) "The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty `to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citations.] `It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference....' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681 [156 Cal. Rptr. 871, 597 P.2d 130].) With these in mind, we address Montero's various claims of instructional error. A. (9) At the close of testimony on the sexual acts with Marianna and the one act with her sister Christina, the court instructed the jury under CALJIC No. 1.23.1 as to the meaning of consent in forcible rape. Montero contends the use of this definition was an improper ex post facto application of section 261.6 as to the December 20, 1981, and October 15, 1982, rapes of Marianna. Section 261.6, enacted in 1982 and effective on January 1, 1983, provides: "In prosecutions under Section 261, 286, 288a or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."[3] (Italics added.) 428 We need not determine whether the instruction given was an improper ex post facto application as consent was not at issue as to the crimes against Marianna; consent was only applicable as a defense concerning the forcible rape charge against Christina. The defense theories as to the crimes against Marianna were that they were fabricated and there was no force, fear or penetration proved. In fact, Montero concedes in his opening brief Marianna did not consent on any of the five occasions. (10) In a related argument, Montero asserts the court erroneously failed to instruct on the defense of mistaken belief as to consent regarding the lewd conduct charge. The court, however, need only give such instruction sua sponte where it appears the defendant is relying on such defense, or if there is substantial evidence to support such defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Hampton (1981) 118 Cal. App.3d 324, 329 [173 Cal. Rptr. 268].) Here, there is no evidence of equivocal conduct by Marianna which could have led Montero to reasonably believe there was consent; this he has admitted. Moreover, where, as here, the record shows the presence of physical force, resulting in physical harm, consent or reasonable belief of consent is not a defense. (People v. Cicero, supra, 157 Cal. App.3d 465 at p. 484.) Montero's contentions concerning "consent" are meritless. B. (11) Montero correctly points out the court failed to properly instruct the jury under CALJIC No. 10.14 on the extent of their responsibility for determining the punishment for the December 20, 1981 unlawful sexual intercourse count. (§ 261.5.) Section 264, applicable in 1981, provided, in pertinent part: "Unlawful sexual intercourse, as defined in Section 261.5, is punishable either by imprisonment in the county jail for not more than one year or in the state prison, and in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison...."[4] Thus, section 264 had a "built-in safeguard against the imposition of a long state prison sentence in the case of a trivial sexual indiscretion[:] the power of the jury to determine that the offense be only a misdemeanor with a maximum punishment of one year's imprisonment in the county jail." (People v. Brown (1973) 35 Cal. App.3d 317, 328 [110 Cal. Rptr. 854].) The jury's recommendation was considered an essential part of the verdict and was conclusive and binding upon the trial court as 429 far as pronouncement of judgment was concerned. (People v. Pantages (1931) 212 Cal. 237, 270 [297 P. 890].) Accordingly, the court erred by failing to instruct sua sponte the jury must recommend punishment in their verdict for the December 30, 1981, section 261.5 charge pursuant to CALJIC No. 10.14.[5] We now determine whether such error requires reversal. (12) Recently, the California Supreme Court in People v. Garcia (1984) 36 Cal.3d 539 [205 Cal. Rptr. 265, 684 P.2d 826], held instructional errors which deny a defendant the right to have each element of a charged crime decided by the jury are reversible per se unless certain exceptions apply.[6] (Id., at p. 550.) This case, however, is distinguishable from Garcia and other cases requiring application of this per se reversal. The court here instructed the jury as to the elements which must be proved for a conviction of unlawful sexual intercourse: (1) that the defendant engaged in an act of sexual intercourse with a female person; (2) that the female was not his wife; and (3) that she was under 18 years of age. (CALJIC No. 10.10.) A finding by the jury the punishment should be in county jail or in prison is clearly not a necessary element for a conviction of section 261.5. Thus, failure to instruct the jury on its responsibility upon finding Montero guilty of the crime did not deprive Montero of his right to have the jury decide each element of section 261.5. Therefore, reversal is not required. Under the facts of this case, we find omission of the proper instruction to be harmless error. The jury found Montero guilty of forcible rape and lewd conduct based on the same facts presented for the unlawful sexual intercourse on December 20, 1981. Consequently, it is improbable the jury 430 would have reached a different conclusion had it been given the proper instruction. (People v. Watson, supra, 46 Cal.2d 818 at pp. 836-837.) C. (13a) Relying on People v. Cicero, supra, 157 Cal. App.3d 465 at pages 473-479, and People v. Kusumoto (1985) 169 Cal. App.3d 487 [215 Cal. Rptr. 347], Montero asserts the trial court committed reversible error when it failed to instruct sua sponte on the definition of force for the five forcible rape counts and the one forcible lewd and lascivious conduct count. While acknowledging neither case involved the crime of rape, Montero maintains each derived its meaning of force from the force required in rape (People v. Cicero, supra, at pp. 475-476; People v. Kusumoto, supra, at pp. 493-494), and argues forcible rape cases as well as forcible lewd and lascivious conduct cases now require the technical definition of that term be given even in the absence of a request. As discussed earlier, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (14) "A trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are `commonly understood by those familiar with the English language'; it does have such a duty where the terms have a `technical meaning peculiar to the law.' [Citations.]" (People v. Kimbrel (1981) 120 Cal. App.3d 869, 872 [174 Cal. Rptr. 816].) (13b) Montero did not request an amplifying or clarifying instruction. Rather he contends Cicero and Kusumoto hold force has taken on a technical meaning not readily known to the average lay juror. (People v. Cicero, supra, 157 Cal. App.3d at p. 474; People v. Kusumoto, supra, 169 Cal. App.3d at pp. 492-494.) Therefore, the court was required to instruct sua sponte on its definition. In Cicero, the first California decision to construe the term "force" as used in section 288, subdivision (b) (subd. (b)), the defendant approached two young girls throwing rocks into a waterway. Under the friendly guise of throwing the girls, ages 11 and 12 years, in the water, the defendant picked up the girls by the waist, carried them along under his arms, and felt their crotches. (People v. Cicero, supra, 157 Cal. App.3d 465 at p. 470.) In finding sufficient evidence to support the subdivision (b) convictions, the court in Cicero held: "Where a defendant uses physical force to commit a lewd act upon a child under the age of 14, and the child suffers physical harm as a consequence, the defendant has committed a lewd act `by use of force' under subdivision (b).... Where no physical harm to the child has occurred, the prosecution has the burden of proving (1) that the defendant used physical force substantially different from or substantially in excess 431 of that required for the lewd act and (2) that the lewd act was accomplished against the will of the victim." (Cicero, supra, at p. 484.) Because the Cicero facts involved no physical harm to either victim, the court reviewed the sufficiency of evidence question under the latter two rules. The court noted that before the 1981 amendment of subdivision (b), which deleted the element of being "against the will of the victim" from the statute (Stats. 1981, ch. 1064, § 1, p. 4093), "both logic and fairness compel[led] the conclusion that `force' in subdivision (b) must reasonably be given the same established meaning it has achieved in the law of rape: `force' should be defined as a method of obtaining a child's participation in a lewd act in violation of a child's will and not exclusively as a means of causing physical harm to the child." (Cicero, supra, at pp. 475-476.) The court then examined the legislative changes in both the forcible lewd and lascivious conduct and forcible rape statutes and concluded the 1981 amendment to section 288 did not really delete the nonconsensual or "against the will" element, but "eliminate[d] any requirement that the People prove resistance by the victim in a prosecution for violation of subdivision (b)." (Id., at pp. 479-481.) This interpretation brought the forcible lewd conduct statute in line with the 1980 amended forcible rape statute which removed the resistance element for prosecutions under its section. (See Stats. 1980, ch. 587, § 1, p. 1595.) In applying the Cicero holding retroactively, People v. Pitmon (1985) 170 Cal. App.3d 38, 47, 52 [216 Cal. Rptr. 221], another subdivision (b) case, held the lower court erred by failing to instruct sua sponte on the Cicero definition of force. The error, however, was found to be harmless under the circumstances of the case because a finding of force was not necessary for a conviction under that section as duress had been shown. Under section 288, the jury can alternatively find a defendant used "violence, duress, menace or threat of great bodily harm" in the commission of the lewd acts to find the defendant guilty of subdivision (b). (Pitmon, supra, at p. 53.) The facts in Pitmon, like those in Cicero, did not involve physical harm to the victim. Recently, this court in People v. Kusumoto, supra, 169 Cal. App.3d 487, construed the term "force" in section 289, subdivision (a) (subd. (a)). That section provides for punishment of a defendant for penetrating the genital or anal openings of another person "by any foreign object, substance, instrument, or device when the act is accomplished against the victim's will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another" for sexual arousal, gratification, or abuse (subd. (a)). In Kusumoto, the 13-year-old victim awoke to find the defendant's hand in her shorts and finger in her vagina. She suffered no physical harm. We held there was insufficient evidence of 432 "force" where the penetration occurred while the victim was asleep and her "will was not overcome by any physical force substantially different from or greater than that necessary to accomplish the act itself." (People v. Kusumoto, supra, 169 Cal. App.3d 487 at p. 494.) This case differs significantly from Kusumoto, Cicero and Pitmon. Here Montero caused the victim physical harm over and above that inherent in the sex acts, while in each of those cases no physical harm was present. (See People v. Caudillo (1978) 21 Cal.3d 562, 577-578 [146 Cal. Rptr. 859, 580 P.2d 274].) Cicero only requires a technical definition of force if no physical harm to the victim is shown. (People v. Cicero, supra, 157 Cal. App.3d 465 at p. 484.) No clarifying or amplifying instruction on force is needed where, as here, the evidence establishes force by physical harm. Dr. Shreves testified Marianna's urethra area was visibly swollen, bruised and traumatized over a long period of time. Such evidence shows force over and above penetration, however slight, for the rape charges, and over and above any touching of the body for the lewd conduct. No further definition of force was required under these circumstances. Moreover, the court correctly instructed the jury on the general legal principles relevant to the proof of forcible rape and forcible lewd and lascivious conduct. Accordingly, we conclude the court was not required to explain or amplify the term "force" on its own motion for either the forcible rape counts or forcible lewd conduct count. There was no instructional error.[7] V (15) Montero's improper multiple convictions contention has recently been addressed and decided against him by our Supreme Court. People v. Pearson (1986) 42 Cal.3d 351 [228 Cal. Rptr. 509, 721 P.2d 595], holds a defendant may properly be convicted of more than one crime based on the same act but cannot suffer future additional punishment based on the conviction under repeat offender enhancement statutes. In Pearson, the defendant was convicted of both statutory sodomy and lewd conduct for the commission of a single act of sodomy. Pearson argued 433 the multiple convictions were improper because he could not be convicted of both a greater and lesser included offense and that statutory sodomy (§ 286, subd. (c)) necessarily included the lesser offense of lewd conduct (§ 288, subd. (a)) or, alternatively, the sodomy convictions are "specifically included" in the language of lewd conduct. The Supreme Court noted Pearson's first premise, although a correct legal statement, did not apply because his second alternative arguments failed. (People v. Pearson, supra, 42 Cal.3d 351, at pp. 354-355.) The court reiterated the test in California for finding "necessarily included offenses" and found lewd conduct is not a lesser included offense of statutory sodomy because the lewd conduct statute requires specific intent whereas statutory sodomy is a general intent crime. (Id., at pp. 355-356.) Further, the Supreme Court declined to follow its earlier cases finding sex crimes provided for in part one of the Penal Code are "specifically included offenses" analogous to "necessarily included offenses" which prohibit multiple convictions. (At pp. 357-358.) Finally, the court addressed the problem of permitting multiple convictions while protecting the defendant from multiple punishment. (At pp. 358-363.) The court found section 654 prohibits punishment for a stayed offense (at pp. 361-363), and in a footnote advised trial judges that to avoid any misconception in future cases involving stayed multiple convictions, "the stayed convictions [should] be formally dismissed on completion of the defendant's sentence and parole on the conviction for which he is to be punished." (At p. 363, fn. 4.) In this case, the court sentenced Montero on each of the five forcible rape counts and stayed the punishment for the five unlawful sexual intercourse counts and the one forcible lewd act count. According to Pearson, this was the proper way for the court to treat the multiple convictions based on the same five acts as the forcible rape convictions; only multiple punishment for multiple convictions is improper. As in Pearson, the crimes here are not lesser included or necessarily included in the other; i.e., the crime of unlawful sexual intercourse is not necessarily included in the crime of forcible rape (People v. Gutierrez (1982) 137 Cal. App.3d 542, 548 [187 Cal. Rptr. 130]), forcible rape and unlawful sexual intercourse are not necessarily included offenses of the crime of lewd and lascivious conduct (People v. Gordon (1985) 165 Cal. App.3d 839, 862-864 [212 Cal. Rptr. 174]), and forcible lewd conduct which requires specific intent to commit that crime is not necessarily included in the forcible rape crime requiring only general intent (People v. Pearson, supra, 42 Cal.3d 351 at pp. 355-356). While unlawful sexual intercourse and forcible rape have been held to be "specifically included offenses" in forcible lewd conduct (People v. Greer (1947) 30 Cal.2d 589, 604 [184 P.2d 512]; People v. Osuna (1984) 161 Cal. App.3d 429 [207 Cal. Rptr. 641]), Pearson specifically distinguishes the Greer rule of reversing "specifically included offenses" in favor of the 434 plain language of sections 954 and 654.[8] (People v. Pearson, supra, 42 Cal.3d at pp. 357-361.) Having done so, we conclude Montero was properly convicted of all eleven offenses and the court properly used the procedure of staying execution of sentence for all but one conviction arising out of each act. VI (16) (See fn. 9.) The court in effect sentenced Montero under section 667.6, subdivision (d) for the five forcible rapes.[9] Section 667.6, subdivision (d) requires the sentencing court to impose full consecutive sentences for each violation of "subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm if such crimes involve separate victims or involve the same victim on separate occasions." (§ 667.6, subd. (d).) Montero challenges the court's use of section 667.6, subdivision (d) to sentence him to 30 years in prison. A. (17) Because forcible rape can be accomplished by means of force or fear of immediate and unlawful bodily injury, Montero argues special jury findings are required stating which of the alternative elements in the section 667.6, subdivision (d) phrase, "force, violence, duress, menace or threat of great bodily harm," it finds he has committed. Otherwise, the jury may have only found him guilty of rape by means of fear of immediate and unlawful bodily injury which is not a violent sex crime under section 667.6, subdivision (d). We disagree. Rape by either force or fear of immediate and unlawful bodily injury, or both, is a forcible sex offense constituting a violent sex crime under section 667.6, subdivision (d). The cases on which Montero bases his argument are inapposite; they pertain only to violations of sodomy or oral copulation 435 under section 286 or 288a. (See People v. Reber (1986) 177 Cal. App.3d 523 [223 Cal. Rptr. 139]; People v. Riffey (1985) 171 Cal. App.3d 419 [217 Cal. Rptr. 319]; People v. Foley (1985) 170 Cal. App.3d 1039 [216 Cal. Rptr. 865]; People v. Reyes, supra, 153 Cal. App.3d 803.) The phrase in section 667.6, subdivision (d) simply does not apply to subdivision (2) of section 261. We agree with the rationale in People v. Foley the 1980 amendment to section 261, subdivision (2) was not intended to change the existing statutory scheme of including a section 261, subdivision (2) conviction, without further findings, within section 667.6, subdivision (c). (People v. Foley, supra, 170 Cal. App.3d 1039 at p. 1057, fn. 11; accord People v. Riffey, supra, 171 Cal. App.3d 419 at p. 424, fn. 5.) The same rationale applies to section 667.6, subdivision (d). The only difference between subdivisions (c) and (d) for purposes of invoking either section is that under subdivision (d) multiple sex crimes must involve separate victims or involve the same victim on separate occasions. Here, the jury found Montero committed multiple forcible rapes upon the same victim, Marianna, on five separate occasions. No further finding by the jury is required to include Montero's rape convictions within section 667, subdivision (d). B. (18) Montero additionally contends the case must be remanded to allow the court to exercise its full sentencing discretion under section 1385. Relying on the language in People v. Fritz (1985) 40 Cal.3d 227 [219 Cal. Rptr. 460, 707 P.2d 833], and the fact all published cases indicate sentencing is mandatory under section 667.6, subdivision (d), Montero argues the record does not show the trial court realized its discretion under section 1385 to dismiss some of the convictions for forcible rape or stay their punishment in the furtherance of justice. Section 1385 states in pertinent part: "The judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes." People v. Fritz, supra, 40 Cal.3d 227, addressed the relationship of section 1385 to the mandatory language of section 667 regarding enhancements for prior serious felony convictions and held the trial court still has discretion to strike under section 1385. (Id., at pp. 229-231.)[10] Montero thus concludes the trial judge must here, as in the section 667 situation, be permitted to exercise his discretion if he so chooses. 436 Montero correctly notes all reported cases to date have found the sentencing provisions of section 667, subdivision (d) mandatory and our latest Supreme Court case on this section restates that mandate. In People v. Craft (1986) 41 Cal.3d 554 [224 Cal. Rptr. 626, 715 P.2d 585], the Supreme Court says, "[s]ubdivision (d) ... provides that the court is without discretion in the matter, but must impose full, separate, and consecutive terms `if such crimes involve separate victims or involve the same victim on separate occasions.' [Fn. omitted.] When the court sentences under subdivision (d), it need not give a statement of reasons. [Citation.]" (Id., at p. 559.) A court also need not state reasons for rejecting a sentencing choice (see Advisory Com. comment, Cal.Rules of Court, rule 443) and a decision to dismiss, strike or stay under section 1385 is a sentencing choice. Even though Montero's trial counsel conceded sentencing was mandatory under section 667.6, subdivision (d) and the trial court was not required to state reasons for sentencing under that section, contrary to Montero's assertion on appeal the record is silent as to the court's exercise of discretion, the record reveals the court chose to sentence under section 667.6, subdivision (d) rather than under section 1170.1.[11] Montero has not affirmatively shown any abuse of discretion by the sentencing judge. In the absence of such evidence, we read the record as showing the trial court properly considered section 1385 in imposing sentence. (See People v. Martinez (1985) 175 Cal. App.3d 881 [221 Cal. Rptr. 258].) C. (19) We address one other point. In his last argument on section 667.6, subdivision (d), Montero suggests his mandatory 30-year sentence is cruel and unusual punishment. This argument was not made to the trial court and he does not support his argument with any evidence necessary to an analysis under Lynch/Dillon to determine whether his sentence comes within constitutionally accepted limits. (People v. Dillon (1983) 34 Cal.3d 441, 479 [194 Cal. Rptr. 390, 668 P.2d 697]; In re Lynch (1972) 8 Cal.3d 410, 423-425 [105 Cal. Rptr. 217, 503 P.2d 921].) However, "[i]n view of the outrageous nature of this type of offense and in view of the danger that these offenses pose to society we cannot say that the imposition of consecutive sentences for multiple sex offenses shocks the conscience and offends fundamental 437 notions of human dignity. [Citation.]" (People v. Bestelmeyer (1985) 166 Cal. App.3d 520, 531 [212 Cal. Rptr. 605].) Judgment affirmed. The court is directed to amend the abstract of judgment in accordance with this opinion. Kremer, P.J., and Lewis, J., concurred. Appellant's petition for review by the Supreme Court was denied November 25, 1986. NOTES [1] All statutory references are to the Penal Code unless otherwise specified. [2] Remarkably, Montero does not challenge the sufficiency of evidence on the forcible lewd conduct count as he relies primarily on the definition of force in a section 288, subdivision (b) case, People v. Cicero (1984) 157 Cal. App.3d 465, 473-479 [204 Cal. Rptr. 582], to challenge the substantiality of evidence on the rape charges. (See section IV C. discussion, post.) [3] CALJIC No. 1.23.1 adopts the language of section 261.6. [4] The 1981 Legislature amended section 264 to eliminate any requirement the jury recommend punishment. (See Stats. 1981, ch. 110, § 2, p. 843.) [5] CALJIC No. 10.14 stated: "Unlawful sexual intercourse is punishable either by imprisonment in the county jail or in the state prison. If you find the defendant guilty of unlawful sexual intercourse, you shall recommend by your verdict whether the punishment shall be by imprisonment in the county jail, which would make the crime a misdemeanor, or in the state prison, which would make the crime a felony." [6] These exceptions were summarized in People v. Ramos (1984) 37 Cal.3d 136 [207 Cal. Rptr. 800, 689 P.2d 430]: "(1) `"if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,"' [citation], (2) `"if the defendant conceded the issue of intent"' [citation], (3) if `"the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions"' [citation], or (4) under limited circumstances, if `the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.' [Citations.]" (At pp. 146-147.) [7] We do not reach the issue whether the Cicero definition of force is required in all forcible rape cases without some evidence of physical harm beyond the act itself. We merely note the recent California Supreme Court case People v. Barnes, supra, 42 Cal.3d 284 (which involves the rape of a woman without evidence of physical harm other than the act itself, and clarifies the elimination of the resistance element from § 261, subd. (2)), relies on the common law and preamendment rape cases defining force to evaluate the sufficiency of the evidence. From this, we can only assume no new technical definition of force has arisen from the amendment to the forcible rape statute. [8] Section 954 states in part, "the defendant may be convicted of any number of the offenses charged," and section 654 states in part, "An act or omission which is made punishable in different ways by different provisions of [the Penal] Code may be punished under either of such provisions, but in no case can it be punished under more than one...." [9] The court here sentenced Montero to a middle base term on the count two forcible rape and then imposed full consecutive terms under section 667.6, subdivision (d) for the remaining four forcible rapes. Under section 667.6, subdivision (d), each applicable violent sex crime is to be a full consecutive term imposed without reference to section 1170.1. The court's sentencing count two as the principal term under section 1170.1 is technically incorrect. The abstract of judgment should be amended to reflect count two is a full-consecutive term without reference to section 1170.1. [10] The Legislature has recently enacted urgency legislation amending sections 667, subdivision (a) and 1385 to nullify this holding. (Stats. 1986, ch. 85, §§ 1-4 [eff. May 6, 1986].) [11] In sentencing under section 667.6, subdivision (d), the court stated: "The court feels that having reviewed all of the circumstances of the case, the long period of time that this conduct was ongoing, the fact that it continued, the fact that the defendant is not just one time that he did this, but he continued this conduct, the fact that there were a number of criminal acts inflicted and the fact that the [victim was] of tender years ... the court determines that it is appropriate to impose sentences in this case under 667.6 of the Penal Code rather than 1170 provisions."	{ "pile_set_name": "FreeLaw" }
Case: 10-50029 Document: 00511480166 Page: 1 Date Filed: 05/17/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 17, 2011 No. 10-50029 Lyle W. Cayce Clerk CLARENCE ENOCHS, Plaintiff - Appellant v. LAMPASAS COUNTY, Defendant - Appellee Appeal from the United States District Court for the Western District of Texas Before KING, DeMOSS, and PRADO, Circuit Judges. HAROLD R. DeMOSS, JR.: This appeal asks us to determine whether the district court abused its discretion by failing to remand the case to Texas state court after all federal claims had been deleted and only Texas state law claims remained. For the following reasons, we find that the district court abused its discretion when it denied Clarence Enochs’s motion to remand. We therefore vacate the district court’s grant of summary judgment in favor of Lampasas County on each Texas state law claim, reverse the district court’s denial of Enochs’s motion to remand, and remand the case with instructions to the district court to remand the Texas state law claims to the Texas state court from which the case was removed. Case: 10-50029 Document: 00511480166 Page: 2 Date Filed: 05/17/2011 No. 10-50029 I. Enochs filed an original petition in Texas state court on December 29, 2008, alleging violations of federal law under 42 U.S.C. §§ 1983 and 1985, and violations of Texas state law under the Texas whistleblower statute, Texas Government Code § 614, and common law defamation. Pursuant to 28 U.S.C. § 1441, the County removed the entire case to federal district court on January 26, 2009. On February 26, 2009, the County filed a motion to dismiss both the federal § 1985 claim and the state whistleblower claim. On March 11, 2009, Enochs filed an unopposed motion to amend the complaint to delete all federal claims, and then a separate motion to remand the case to Texas state court. On April 20, 2009, the district court entered an order which denied Enochs’s motion to remand because “[r]emoval was proper based on the original petition filed in the state court,” and granted Enochs’s motion to file an amended complaint pursuant to the district court’s discretion under Federal Rule of Civil Procedure 15(a). The district court also granted the County’s motion to dismiss the § 1985 claim because Enochs voluntarily dropped it, and denied the County’s motion to dismiss the whistleblower claim because it could not be resolved without an evidentiary record. With respect to the denial of Enochs’s motion to remand, the district court’s entire analysis focused on whether removal of the case on January 26, 2009, was proper, and whether it could exercise supplemental jurisdiction over the pendent Texas state law claims in addition to exercising original jurisdiction over the federal claims. Based on the existence of two federal claims in Enochs’s original petition, the district court concluded that removal was proper pursuant to 28 U.S.C. § 1441(a). And based on the existence of “a common nucleus of operative fact” between the federal claims and Texas state law claims included in the original petition, the district court concluded that supplemental jurisdiction extended over the Texas state law claims pursuant to 28 U.S.C. 2 Case: 10-50029 Document: 00511480166 Page: 3 Date Filed: 05/17/2011 No. 10-50029 § 1367(a). The district court noted at the outset of its discussion of the motion to remand that Enochs’s amended complaint deleted all federal claims from the case, but it failed to re-examine its jurisdiction over the Texas state law claims when in the same order it granted Enochs’s motion to file an amended complaint. Following the April 20, 2009 order, the case remained in the district court but involved only Texas state law claims. The parties proceeded to discovery and more than five months later the County filed motions for summary judgment on each of the Texas state law claims. Following briefing and argument on the merits of each of Enochs’s Texas state law claims, the district court granted summary judgment on December 2, 2009, in favor of the County on each Texas state law claim and dismissed the case. Enochs timely appealed (i) the district court’s denial of his motion to remand the case to Texas state court after all federal claims had been deleted from his original petition, and (ii) the district court’s subsequent grant of County’s motion for summary judgment on the remaining Texas state law claims. II. Enochs concedes that removal of the case to federal district court was proper and we agree. On January 26, 2009, the district court had original jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the Texas state law claims pursuant to 28 U.S.C. § 1367(a). Enochs contends, however, that the district court abused its discretion in failing to relinquish jurisdiction over the pendent Texas state law claims once it had permitted him to file an amended complaint deleting all federal claims. The district court’s failure to remand the pendent Texas state law claims to the Texas state court from which the case was removed is reviewed for abuse of discretion. Priester v. Lowndes Cnty., 354 F.3d 414, 425 (5th Cir. 2004). It its 3 Case: 10-50029 Document: 00511480166 Page: 4 Date Filed: 05/17/2011 No. 10-50029 April 20, 2009 order, the district court failed to analyze the statutory and common law factors that are relevant to the question of its jurisdiction over pendent state law claims. We therefore evaluate the factors in the first instance, and then determine whether the district court abused its discretion in denying Enochs’s motion to remand. In determining whether a district court improperly refused to relinquish jurisdiction over pendent state law claims, we look to the statutory factors set forth by 28 U.S.C. § 1367(c), and to the common law factors of judicial economy, convenience, fairness, and comity. See Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008) (noting that “no single factor is dispositive”); see also Carnegie- Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (setting forth the common law factors). We are also instructed to guard against improper forum manipulation. Carnegie-Mellon, 484 U.S. at 357. We consider and balance each of the factors to determine whether the district court abused its discretion. See Mendoza, 532 F.3d at 346. A. Precedent instructs us to balance each of the statutory factors in order to determine whether a district court abused its discretion. See McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 n.11 (5th Cir. 2003). The overall balance of the statutory factors is important. See, e.g., Mendoza, 532 F.3d at 346. The statutory factors are: (1) whether the state claims raise novel or complex issues of state law; (2) whether the state claims substantially predominate over the federal claims; (3) whether the federal claims have been dismissed; and (4) whether there are exceptional circumstances or other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966) (setting forth the common law precursor to § 1367(c)). 4 Case: 10-50029 Document: 00511480166 Page: 5 Date Filed: 05/17/2011 No. 10-50029 In this case, each of the four statutory factors favors remand. The first three factors certainly favor remand: (1) Enochs’s Texas Government Code § 614 claim concerns a novel Texas state law issue with no Texas Supreme Court guidance, as does his argument that § 1701.456(b) of the Texas Occupations Code has waived the County’s sovereign immunity; (2) the Texas state law claims predominate over the non-existent federal claims; and (3) the district court dismissed all federal claims when it granted Enochs’s motion to file an amended complaint. The fourth factor also favors remand, as the heavy balance of the common law factors in favor of remand constitutes another compelling reason to decline jurisdiction. Thus, the overall balance of the statutory factors weighs heavily in favor of remand. B. The common law factors as set forth in Carnegie-Mellon include judicial economy, convenience, fairness, and comity. 484 U.S. at 350, 353. We find that each factor weighs in favor of remand. First, at the time the federal claims were deleted hardly any federal judicial resources, let alone a significant amount of resources, had been devoted to the district court’s consideration of the Texas state law claims (or to any claims). See La Porte Constr. Co. v. Bayshore Nat’l Bank of La Porte, Tex., 805 F.2d 1254, 1257 (5th Cir. 1986); cf. Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009); Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d 302, 308 (5th Cir. 1991). There would be no need for either party to duplicate any research, discovery, briefing, hearings, or other trial preparation work, because very little had been done at that point. See Brookshire Bros., 554 F.3d at 603; Mendoza, 532 F.3d at 347. Moreover, there is no indication that the district court had any “substantial familiarity” or was intimately familiar with the Texas state law claims at such an early stage of the litigation. Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587 5 Case: 10-50029 Document: 00511480166 Page: 6 Date Filed: 05/17/2011 No. 10-50029 (5th Cir. 1992); see Smith v. Amedisys Inc., 298 F.3d 434, 446 (5th Cir. 2002). The denial of the County’s motion to dismiss did not require a thorough consideration of the merits of the state whistleblower claim at that early stage of the litigation, and the two other Texas state law claims had not yet even been briefed. The judicial economy factor certainly favors remand. Second, it is certainly more convenient for the case to have been heard in the Texas state court in Lampasas County, where all of the parties, witnesses, and evidence were located. Moreover, as the judicial economy factor suggests, remand would not have caused any financial inconvenience to the parties because they would not have had to duplicate any of their previous efforts or expenses. See Mendoza, 532 F.3d at 347. Third, it was certainly fair to have had the purely Texas state law claims heard in Texas state court, and there is nothing to indicate that either party would have been prejudiced by a remand to Texas state court. See Parker & Parsley, 972 F.2d at 588. And fourth, comity demands that the “important interests of federalism and comity” be respected by federal courts, which are courts of limited jurisdiction and “not as well equipped for determinations of state law as are state courts.” Id. at 588-89. The convenience, fairness, and comity factors each certainly favors remand, and the overall balance of the common law factors weighs heavily in favor of remand. At bottom, all of the statutory and common law factors weigh in favor of remand, some weighing heavily in favor of remand and others weighing modestly in favor of remand. W e are bound to consider and weigh “all the factors” when determining whether a district court abused its discretion by failing to remand, id. at 590, and in this case the overall balance of the statutory and common law factors clearly favors remand. C. On the issue of forum manipulation, which is the only issue that even arguably favored the retention of jurisdiction, Enochs’s motion to amend his 6 Case: 10-50029 Document: 00511480166 Page: 7 Date Filed: 05/17/2011 No. 10-50029 complaint to delete the federal claims is not a particularly egregious form of forum manipulation, if it is manipulation at all. Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999) (agreeing with the district court that “plaintiffs get to pick their forum and pick the claims they want to make unless they are blatantly forum shopping”); Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 340 (5th Cir. 1999) (finding that an amendment to a complaint deleting the remaining federal claims was not improper forum manipulation); cf. Brown v. Sw. Bell Tel. Co., 901 F.2d 1250, 1255 (5th Cir. 1990) (finding that improper forum manipulation weighed, along with other factors, in favor of continuing to exercise jurisdiction). In any case, the Supreme Court’s instruction for district courts to “guard against forum manipulation” is explicitly qualified for situations such as this one, where other considerations weigh heavily in favor of remand. Carnegie- Mellon, 484 U.S. at 357. Allegations of improper forum manipulation cannot prevent this court or the district court from considering “the other circumstances in the case,” and any possible manipulative behavior by Enochs can only be taken “into account in determining whether the balance of factors to be considered under the pendent jurisdiction doctrine support a remand in the case.” Id. Guarding against improper forum manipulation is only one of the important considerations we examine in determining whether a district court abused its discretion in failing to remand. It is not so serious of a concern that it can become a trump card which overrides all of the other factors we are instructed to consider and balance. If there was any forum manipulation in Enochs’s case, it was not so improper as to override the balance of the statutory and common law factors weighing heavily in favor of remand. III. The mistake which led the district court to abuse its discretion was in failing to reconsider its jurisdiction over the Texas state law claims as of the 7 Case: 10-50029 Document: 00511480166 Page: 8 Date Filed: 05/17/2011 No. 10-50029 moment it granted Enoch’s motion to file an amended complaint deleting all federal claims from the case. Courts are instructed to examine their jurisdiction “at every stage of the litigation.” Id. at 350; see Gibbs, 383 U.S. 715, 727 (1966) (“[T]he issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation.”). Were the district court to have reconsidered in its April 20, 2009 order its pendent jurisdiction over the purely Texas state law claims, it likely would have then expressly considered the statutory and common law factors, and it likely would have followed the general rule and granted the motion to remand. “Our general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.” Parker & Parsley, 972 F.2d at 585 (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)); see Carnegie-Mellon, 484 U.S. at 351 (noting that when the federal claims are eliminated at an “early stage” of the litigation the district court has “a powerful reason to choose not to continue to exercise jurisdiction”); Gibbs, 383 U.S. at 726 (“Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”); Brookshire Bros., 554 F.3d at 602 (noting that “the general rule is that a court should decline to exercise jurisdiction over remaining state-law claims when all federal- law claims are eliminated before trial”); Beiser v. Weyler, 284 F.3d 665, 675 (5th Cir. 2002) (noting that where “no other grounds for federal jurisdiction exist, the court must ordinarily remand the case back to state court”). Indeed, the Supreme Court has for nearly half a century cautioned federal courts to avoid “[n]eedless decisions of state law” such as the decisions the district court made on the merits of Enochs’s Texas state law claims. Gibbs, 383 U.S. at 726. We recognize that the doctrine of pendent jurisdiction is a “doctrine of flexibility.” Carnegie-Mellon, 484 U.S. at 350; see also Gibbs, 383 U.S. at 727 (noting a district court’s “wide latitude to decide ancillary questions of state 8 Case: 10-50029 Document: 00511480166 Page: 9 Date Filed: 05/17/2011 No. 10-50029 law”). A district court has “wide discretion” in deciding whether it should retain jurisdiction over state law claims once all federal claims have been eliminated. Guzzino, 191 F.3d at 595. Thus, we are right to hesitate in rejecting the district court’s exercise of its discretionary authority, as the general rule of remanding state law claims to state court after all federal claims have been eliminated is “neither mandatory nor absolute.” Batiste v. Island Records Inc., 179 F.3d 217, 227 (5th Cir. 1999) (citing McClelland, 155 F.3d at 519); see also Brookshire Bros., 554 F.3d at 602. But such discretion is founded upon and guided by a court’s consideration of the prescribed statutory and common law factors. Our deference cannot stretch so far as to find no abuse of discretion where, as is the case here, all federal claims were deleted at the infancy of the case and the balance of the statutory and common law factors weighs heavily in favor of remand. Parker & Parsley is the primary case where we found that a district court abused its discretion in failing to relinquish jurisdiction over pendent state law claims.1 In Parker & Parsley, a case originally filed in federal court, the sole federal claim was dismissed after nine months of trial preparation and one month before the scheduled trial date. 972 F.2d at 582. The district court retained jurisdiction over state law fraud, contract, and tort claims, and continued the case for three additional months. Id. Prior to the dismissal of the federal claim, there had been “a serious attack upon the propriety of venue, rigorous deposition schedules, ungodly amounts of discovery documents, and a hearing on discovery disputes.” Id. at 584 (internal marks and citation omitted). 1 See also Certain Underwriters at Lloyd’s, London & Other Insurers Subscribing to Reinsurance Agreements F96/2922/00 & No. F97/2992/00 v. Warrantech Corp., 461 F.3d 568, 578 (5th Cir. 2006). Admittedly our precedents in this area are few. But the relative scarcity of circuit precedent finding an abuse of discretion for failing to remand speaks strongly to how often the “general rule” is followed and how carefully district courts typically scrutinize their pendent jurisdiction. 9 Case: 10-50029 Document: 00511480166 Page: 10 Date Filed: 05/17/2011 No. 10-50029 The district court, in refusing to surrender jurisdiction over the pendent state law claims, concluded that “the equities weigh heavily in favor of maintenance of the case,” and went on to hold a full trial and render judgment on the state law claims. Id. at 584-85. After a lengthy and detailed discussion where it “consider[ed] and weigh[ed] all the factors present in th[e] case,” this court reversed the district court, finding that the failure to remand was an abuse of discretion. Id. at 590. In Parker & Parsley, we carefully analyzed the Carnegie-Mellon factors, expressly mentioning that “[n]o single factor . . . is dispositive.” Id. at 587. In its consideration, the court noted a number of facts and circumstances weighing in favor of relinquishing jurisdiction: (i) the case was “only nine months” old; (ii) trial was “still a few weeks away;” (iii) “discovery had not been completed;” (iv) the case was “at an earlier stage than the parties and the court previously might have thought” due to an amended complaint which changed the theories of the case; (v) the district judge did not have “substantial familiarity with the merits of the case;” (vi) the remaining state law issues were “difficult ones;” (vii) remaining in federal court did not “prevent[] redundancy [or] conserve[] substantial judicial resources;” (viii) there would be no “undue inconvenience” such as a “tremendous financial drain” or a necessity for new legal research; (ix) the already completed discovery “was largely usable in the state proceeding;” (x) the parties would not be prejudiced by remand; and (xi) the “important interests of federalism and comity” heavily favored remand. Id. at 587-89. Careful examination shows that the circumstances in Parker & Parsley did not favor the relinquishment of jurisdiction nearly as strongly as do the circumstances here in Enochs’s case. When this case became a purely Texas state law dispute, it was still in its infancy (less than three months old), no discovery had occurred, no hearings or trial dates had been scheduled, the district court was not even moderately familiar with any of the Texas state law 10 Case: 10-50029 Document: 00511480166 Page: 11 Date Filed: 05/17/2011 No. 10-50029 issues, no financial or other inconvenience would have occurred, and no prejudice would have arisen. These facts favor remand more heavily than the facts of Parker & Parsley. IV. Because the balance of the statutory and common law factors weighs heavily in favor of remanding the pendent Texas state law claims, and because Carnegie-Mellon does not permit us to turn any allegation of improper forum manipulation into a trump card which can defeat the heavy balance of the other relevant considerations, we hold that the district court abused its discretion when it denied Enochs’s motion to remand. The courts in this circuit must remain diligent in following the Supreme Court’s almost fifty-year-old command that federal courts avoid needless decisions of state law. For the foregoing reasons we vacate the district court’s grant of summary judgment in favor of County on each Texas state law claim, reverse the district court’s denial of Enochs’s motion to remand, and remand the case with instructions to the district court to remand the Texas state law claims to the Texas state court from which the case was removed. REVERSED and REMANDED. 11 Case: 10-50029 Document: 00511480166 Page: 12 Date Filed: 05/17/2011 No. 10-50029 EDWARD C. PRADO, Circuit Judge, dissenting: I must disagree with my colleagues, whom I respect greatly, that the district court’s decision to decline to remand a case properly before it amounted to an abuse of discretion. Section 1367(c)’s text and Supreme Court precedent make clear that there is no bright-line rule for determining whether a district court should retain pendent state-law claims, and our own precedent directs us to review these decisions mindful of the “wide discretion vested in the trial court to order a remand of state claims on the heels of a dismissal of federal claims.” Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999) (citation omitted). The majority glosses over these first principles and nonetheless concludes that the district court abused its discretion simply because the common-law factors weigh in favor of remand. This, plain and simple, is de novo review and amounts to back-seat driving in precisely the type of decision in which we should be wary of second-guessing the judgment of the district court. I cannot condone my colleagues’ decision to strip the district court of that “wide discretion” simply because they weigh the factors differently than the trial court. My conviction that my colleagues are wrong in this case stems, in part, from my nineteen years as a federal district judge, during which time I was often placed in the same situation as the district court here. To be sure, I agree with the majority that the common-law factors in this case weigh in favor of remand. If I were still a trial judge facing the same situation I would likely have remanded the remaining claims to state court, as would most judges. That is not, however, our inquiry here. Rather, we must ask whether the facts of this case weigh so strongly in favor of remand that a district court with proper supplemental jurisdiction over Enochs’s claims not only should have, but was required to remand the claims to state court. As far as I can tell, we have only found this to be the case once, almost twenty years ago and on facts, as I will explain, that are distinguishable from this case. See Parker & Parsley Petroleum 12 Case: 10-50029 Document: 00511480166 Page: 13 Date Filed: 05/17/2011 No. 10-50029 Co. v. BJ-Titan Servs. Co., 972 F.2d 580, 587 (5th Cir. 1992). I simply do not believe that the factors here weigh so strongly in favor of remand that the district court’s decision to retain and expeditiously dispose of Enochs’s pendent state-law claims constituted an abuse of its wide discretion. A. 28 U.S.C. § 1367(c) Is Not a Balancing Test As an initial matter, I object to the majority’s treatment of the four enumerated circumstances in which a court may decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) as a balancing test. Section 1367(c) authorizes a court to decline to exercise supplemental jurisdiction over a state-law claim if (1) the claim raises a novel or complex issue of state law; (2) the claim substantially predominates over any federal claims; (3) the district court has already dismissed all federal claims; or (4) there are exceptional circumstances or other compelling reasons to decline jurisdiction. On its face, § 1367(c) is a list of situations in which it may be permissible for a district court to remand pendent state-law claims, and not a set of factors to be balanced. The statute separates the subsections by the word “or,” indicating that only one of the four factual scenarios need be present before a district court may properly, in its discretion (by applying the Carnegie-Mellon 1 or other common-law factors), decline to exercise supplemental jurisdiction. Section 1367 was passed as part of the Judicial Improvements Act of 1990, Pub.L. No. 101-650, 104 Stat. 5089–5136, effective to suits filed after December 1, 1990. See Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1018–19 (5th Cir. 1993). Starting with McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433 (5th Cir. 2003), we departed from our prior precedent and began treating the § 1367(c) list of circumstances in which a federal court may decline to exercise 1 Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343 (1988). 13 Case: 10-50029 Document: 00511480166 Page: 14 Date Filed: 05/17/2011 No. 10-50029 supplemental jurisdiction as a distinct set of factors to be balanced, akin to the Carnegie–Mellon common-law factors.2 Previously, we considered § 1367(c) to merely be a list of conditions—of which only one need be present—upon which a court could exercise its discretion to dismiss or remand pendent state-law claims. See Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 328 & n.35 (5th Cir. 1998) (mentioning § 1367(c), but applying only the Carnegie–Mellon common-law factors); see also Doddy v. Oxy USA, Inc., 101 F.3d 448, 455–56 (5th Cir. 1996) (same). While our sister circuits differ as to whether they believe § 1367 alters judicial discretion under the Carnegie–Mellon and Gibbs3 framework or merely incorporates it, only one other circuit4 arguably 2 In McClelland, the district court examined the § 1367(c) elements, concluded none applied, and summarily retained supplemental jurisdiction. 909 F. Supp. 457, 464 (E.D. Tex. 1995). We, however, disagreed that the case presented justiciable federal-law claims, evaluated each part of § 1367(c), and concluded that remand was appropriate based on the statute alone. McClelland, 155 F.3d at 519–20. McClelland therefore incorrectly applied existing precedent twofold: by, for the first time, treating the § 1367(c) factors as a balancing test, and by failing to evaluate the Carnegie–Mellon common-law factors we have long used as a balancing test. 3 United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966). 4 See Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001). The Fourth Circuit in Hinson stated: The exercise of discretion in these circumstances involves two overlapping decisions to be made by the district court—whether to continue exercising federal jurisdiction over pendent claims and whether to remand the case to State court. Section 1337(c) lists factors to inform the decision of whether to exercise federal jurisdiction over pendent State claims, such as whether the State claims involve novel or complex issues of State law; whether the State law claims predominate; whether the federal claims justifying the court’s jurisdiction remains in the case; or other compelling reasons. And when the exercise of this discretion involves the additional question of whether to remand the case to State court, the federal court should consider principles of economy, convenience, fairness, and comity and whether the efforts of a party in seeking remand amount to a manipulative tactic. 239 F.3d at 617. (internal quotation marks and citation omitted). Yet even the Fourth Circuit at best is uneven in how it applies § 1367(c) and evaluates discretionary remand decisions. See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (noting that § 1367(c) provides that courts “may decline” to exercise supplemental jurisdiction in certain circumstances, and stating that “[a]mong the factors that inform this discretionary determination are” the 14 Case: 10-50029 Document: 00511480166 Page: 15 Date Filed: 05/17/2011 No. 10-50029 engages in anything similar to the § 1367(c) “balancing” that the Fifth Circuit has recently engaged in.5 Carnegie–Mellon factors). Nor does the Eighth Circuit’s somewhat murky case law support our Circuit’s recent practice. That Circuit most frequently cites to Gibbs and Carnegie–Mellon (and their Eighth Circuit progeny) when it addresses § 1367(c) remands. See, e.g., Barstad v. Murray Cnty., 420 F.3d 880, 888 (8th Cir. 2005) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.” (quoting Carnegie–Mellon, 484 U.S. at 350 n.7 (internal quotation marks omitted))); McLaurin v. Prater, 30 F.3d 982, 985 (8th Cir. 1994) (“[Section 1367(c)] plainly allows the district court to reject jurisdiction over supplemental claims only in the four instances described therein.”). The Eighth Circuit has once stated, however, that it “look[s] to the factors set forth in § 1367(c)” without explaining what that means. Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1037 (8th Cir. 1999). Whether the Fielder court meant to engage in balancing of the § 1367(c) “factors” as this Court has recently done, however, is doubtful. See id. at 1038 (citing Anglemyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 541 (10th Cir. 1995) (applying Carnegie–Mellon factors), and Parker, 972 F.2d 580 (applying Carnegie–Mellon factors)). 5 All of the other circuits engage in the traditional common-law analysis and do not balance the § 1367(c) “factors.” See Estate of Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d 1350, 1366 (11th Cir. 2010) (“If one of these four statutory factors [of § 1367(c)] applies, courts may also consider additional factors, which include judicial economy, convenience, fairness to the parties, and whether all the claims would be expected to be tried together.” (internal quotation marks and citation omitted)); Nielander v. Bd. of Cnty. Comm’rs of Cnty. of Republic, Kan., 582 F.3d 1155, 1172 (10th Cir. 2009) (“In deciding whether to exercise jurisdiction [under § 1367(c)], the district court is to consider “judicial economy, convenience, fairness, and comity.”); Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904, 906–08 (7th Cir. 2007) (explaining that § 1367(c) codified common-law pendent jurisdiction principles (with changes), noting that a court may dismiss a claim under § 1367(c)(3) where it meets one of the four criteria “without having to consider the [other] criteria,” and explaining that the Seventh Circuit’s precedent identifies specific circumstances (in common law) in which that discretionary authority should not be exercised); Blakely v. United States, 276 F.3d 853, 863 (6th Cir. 2002) (“28 U.S.C. § 1367(c), itself, makes clear that a district court may, not must, decline to exercise supplemental jurisdiction [where the federal claims are dismissed]. The district court’s decision to exercise supplemental jurisdiction at this point depends on judicial economy, convenience, fairness, and comity.” (internal quotation marks and citation omitted)); Itar–Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 446–48 (2d Cir. 1998) (holding that § 1367 altered Gibbs’s discretionary pendent-jurisdiction analysis, adopting a framework that “[o]nce a court identifies one of the factual predicates which corresponds to one of the subsection 1367(c) categories, the exercise of discretion is informed by whether remanding the pendent state claims comports with the underlying objective of” the Carnegie–Mellon factors, and determining that the district court improperly remanded state- law claims when it evaluated the Carnegie–Mellon factors without first determining whether one of the enumerated § 1367(c) conditions applied (internal quotation marks omitted)); Acri 15 Case: 10-50029 Document: 00511480166 Page: 16 Date Filed: 05/17/2011 No. 10-50029 Our recent practice of engaging in § 1367(c) “balancing” has no foundation in the statute’s text, our own precedent, or in the practice of our sister circuits. “[W]here two previous holdings or lines of precedent conflict, the earlier opinion controls and is the binding precedent in the circuit.” United States v. Wheeler, 322 F.3d 823, 828 n.1 (5th Cir. 2003) (internal quotation marks and citation omitted) (alteration in Wheeler). The majority, in error, follows the more recent line of cases from our Circuit and weighs the § 1367(c) “factors” in this case in addition to separately weighing the Carnegie–Mellon common-law factors.6 Here, the district court could have declined to exercise supplemental jurisdiction over Enochs’s state-law claims because all of the federal claims had been dismissed from the litigation. This observation is sufficient under our own precedent to turn to whether the common-law factors articulated in Carnegie–Mellon or any other relevant considerations indicate that the district court’s continued exercise of supplemental jurisdiction was an abuse of discretion. v. Varin Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“While discretion to decline to exercise supplemental jurisdiction over state law claims is triggered by the presence of one of the conditions in § 1367(c), it is informed by the Gibbs values of economy, convenience, fairness, and comity.” (internal quotation marks omitted)); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256–57 (1st Cir. 1996) (noting that § 1367(c)(3) applied and stating that the trial court was to evaluate whether it should retain jurisdiction over remaining state-law claims taking into account the common-law factors); Edmonson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995) (noting that § 1367 codified Gibbs, and that the decision whether to exercise supplemental jurisdiction is “guided by consideration of the [§ 1367(c)] factors,” and stating that “Gibbs determines the framework in which [the § 1367(c) circumstances] are to be considered, mentioning judicial economy, convenience, fairness and comity as relevant”); Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788–89 (3d Cir. 1995) (explaining that § 1367(c) was intended to codify pendent jurisdiction law in Gibbs, stating that only one of the § 1367(c) criteria was allegedly applicable in the case (subsection (2)), and conducting a Gibbs/Carnegie–Mellon analysis of that criteria/factor). 6 Even assuming our precedent requires us to balance the §1367(c) “factors,” those factors only modestly weigh in favor of the district court declining jurisdiction. Only Enochs’s Texas Government Code § 614 claim requires interpreting Texas law without guidance from the Texas Supreme Court (the § 1701.456(b) argument can be resolved without addressing the sovereign-immunity-waiver issue), and there are no exceptional circumstances in this case. 16 Case: 10-50029 Document: 00511480166 Page: 17 Date Filed: 05/17/2011 No. 10-50029 B. The District Court Did Not Abuse Its Discretion I agree that the common-law factors of judicial economy, convenience, fairness, and comity weigh in favor of declining jurisdiction, but do not believe they weigh so clearly or overwhelmingly that the district court abused its discretion in retaining and deciding Enochs’s state-law claims. The judicial- economy factor considers whether there would be any “significant additional burdens on the parties such as repeating the effort and expense of the discovery process[ or] the relitigation of procedural matters” either by staying in federal court or by going back to state court. See Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 603 (5th Cir. 2009). This factor is neutral: the district court was already slightly familiar with the case and had issued a ruling on a motion to dismiss, but the case was in its early stages, and a state court could easily catch up had the case been remanded. Convenience favors remand because all parties, witnesses, and evidence are in Lampasas County, and the federal district court is seventy miles away in Austin. Seventy miles is not, however, so great a distance as to be unduly burdensome. Fairness to the parties did not weigh either way, as neither party would have been prejudiced by having the case tried in federal court or in state court. At most, it would be fairer to the parties to have Enochs’s novel § 614 claim decided by a state court. Comity favors remand, as it always does in these situations, because federal courts are courts of limited jurisdiction, and Texas state courts have superior familiarity with, and heightened interests in developing, Texas state law. In addition to providing the above list of common-law factors to consider, Carnegie–Mellon also admonished federal courts to guard against improper forum manipulation by plaintiffs by denying motions to remand where appropriate. 484 U.S. at 357; see Brown v. Sw. Bell Tel. Co., 901 F.2d 1250, 1255 (5th Cir. 1990) (“[I]t is apparent that by dropping his admittedly preempted claims and moving for a remand, Brown attempted to engage in precisely the 17 Case: 10-50029 Document: 00511480166 Page: 18 Date Filed: 05/17/2011 No. 10-50029 sort of forum manipulation proscribed by Carnegie–Mellon.”).7 We have followed Carnegie–Mellon’s admonition and condoned district courts’ decisions to retain pendent state-law claims when plaintiffs attempt to evade removal jurisdiction: [W]e express our disapproval of Burks’s attempt at forum manipulation. He has tried and failed to delete all of the federal claims from his complaint in order to get the district court to remand. In Carnegie–Mellon, . . . the Court urged the lower federal courts to guard against such manipulation by denying motions to remand where appropriate. Burks v. Amerada Hess Corp., 8 F.3d 301, 306 (5th Cir. 1993), abrogated on other grounds by Giles, 172 F.3d 332. And as we stated in Boelens v. Redman Homes, Inc.: When a plaintiff chooses a state forum, yet also elects to press federal claims, he runs the risk of removal. A federal forum for federal claims is certainly a defendant’s right. If a state forum is more important to the plaintiff than his federal claims, he should have to make that assessment before the case is jockeyed from state court to federal court and back to state court. The jockeying is a drain on the resources of the state judiciary, the federal judiciary and the parties involved; tactical manipulation [by the] plaintiff . . . cannot be condoned. 759 F.2d 504, 507 (5th Cir. 1985) (citation omitted) (alterations in original). Enochs’s simultaneous motions to dismiss and to remand could have been seen as a clear attempt to get his case sent back to state court. While the majority makes the uncontroversial statement that “plaintiffs get to pick their forum and pick the claims they want to make unless they are blatantly forum shopping,” Guzzino, 191 F.3d at 595, forum manipulation may be exactly what Enochs engaged in. As we made clear in Boelens, Enochs was 7 In Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 340 (5th Cir. 1999), we noted that deleting preempted federal claims is not forum manipulation because those claims are not “valid causes of action.” How our Circuit comes down on this issue is irrelevant, as it is not argued that Enochs’s claims are preempted. 18 Case: 10-50029 Document: 00511480166 Page: 19 Date Filed: 05/17/2011 No. 10-50029 the master of his complaint and put his choice of forum at risk when he alleged federal claims. Lampasas County properly removed the case, and if Enochs wanted so desperately to avoid trying his claims in federal court he should have made the tactical decision not to plead any federal claims from the outset. The district court could have properly viewed his motions to amend and remand as forum shopping and thus properly denied the motion to remand. This consideration is not, as the majority paints it, a “trump card” that overrides the other factors also articulated in Carnegie–Mellon; rather, it is an additional factor to be weighed that, in this case, makes it clear to me that the district court’s decision to keep the state-law claims was within its wide discretion and should not be disturbed. We have only once found that a district court improperly exercised supplemental jurisdiction over pendent state-law claims after the federal claims had dropped out of the litigation.8 Parker, 972 F.2d at 587. In Parker, we explained that the plaintiff filed a second amended complaint that “markedly revised its theories of recovery” in almost every respect one week before the motion to dismiss was filed, and “[t]he filing of a pleading that so substantially changed important aspects of the case meant that the case was at an earlier stage than the parties and the court previously might have thought.” Id. Here, the case was in district court for almost three months when the federal claims dropped out and the plaintiff engaged in a seemingly transparent effort to have his case sent back to state court. The district court was at a minimum familiar with Enochs’s federal claims after deciding a motion to dismiss, and had ample 8 Certain Underwriters at Lloyd’s, London and Other Insurers Subscribing to Reinsurance Agreements F96/2922/00 v. Warrantech Corp., 461 F.3d 568, 578 (5th Cir. 2006), is inapposite because it involved state-law counterclaims that “rode into federal court on the coattails” of arbitration-related affirmative defenses that were determined to be meritless. The counterclaims arose “out of separate and independent actions” and were collateral and not related to the heart of the suit. 19 Case: 10-50029 Document: 00511480166 Page: 20 Date Filed: 05/17/2011 No. 10-50029 time to review all of Enochs’s claims and determine whether his state-law claims merited resolution by the state court. Furthermore, in Parker the plaintiff originally brought suit in federal court and had its only federal claim dismissed by the district court on a motion to dismiss shortly after it filed its second amended complaint. Whereas this case likely presents a concerted effort by the plaintiff to “oust removal jurisdiction by voluntarily amending the complaint to drop all federal questions,” there was no such taint of forum manipulation in Parker. See Boelens, 759 F.2d at 507. In short, Parker does not control the outcome of this case. We should be wary to go down a path that transforms the “general rule” of exercising discretion not to hear proper pendent state-law claims into a bright- line dictate removed from district judges’ experience and familiarity with the parties and merits of the claims before it. While remanding the case to state court may have been the more prudent choice, there are ample considerations that weigh in favor of retaining jurisdiction. In light of the difficulty with which this decision must be weighed, I cannot be as quick to second-guess that decision as my colleagues. I therefore respectfully dissent. 20	{ "pile_set_name": "FreeLaw" }
13 Cal.3d 778 (1975) 532 P.2d 1209 119 Cal. Rptr. 841 WILLIAM D. SPRUANCE, a Judge of the Municipal Court, Petitioner, v. COMMISSION ON JUDICIAL QUALIFICATIONS, Respondent. Docket No. S.F. 23153. Supreme Court of California. In Bank. March 25, 1975. 782 COUNSEL Mintz, Giller, Himmelman & Mintz, Herman W. Mintz and Leland J. Bruzzone for Petitioner. Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, William D. Stein and Linda Ludlow, Deputy Attorneys General, for Respondent. OPINION THE COURT The Commission on Judicial Qualifications (hereinafter the Commission) has recommended the removal from office of Judge William D. Spruance of the Municipal Court for the San Leandro-Hayward Judicial District of Alameda County.[1] Pursuant to rule 920 of the California Rules of Court,[2] Judge Spruance has petitioned this court 783 to modify or reject the Commission's recommendation. In discharging our solemn constitutional duties in this matter we have independently reviewed the entire record and have adopted with some modifications the findings of the Commission, as set forth seriatim hereinafter. We conclude that petitioner has engaged in inexcusable and reprehensible conduct constituting in some instances "wilful misconduct in office" (hereinafter wilful misconduct) and in other instances "conduct prejudicial to the administration of justice that brings the judicial office into disrepute" (hereinafter prejudicial conduct). We accordingly adopt and hereby effectuate the Commission's recommendation of removal. After practicing law for almost 20 years, petitioner campaigned for and was elected to the municipal court, taking office on January 4, 1971. On January 11, 1973, he was notified that the Commission had, on its own motion pursuant to rule 904, ordered a preliminary investigation of his judicial conduct. On July 13, 1973, petitioner was served with a five-count Notice of Formal Proceedings (rule 905) encompassing nineteen specifications of wilful misconduct and prejudicial conduct. Following petitioner's filing of a verified answer, this court on January 4, 1974, at the Commission's behest, appointed three special masters to hold evidentiary hearings. (Rule 907.)[3] The 19 days of hearings before the masters commenced on February 19, 1974, and concluded on March 19, 1974. During the course of the proceedings, the examiners designated by the Commission to prosecute the charges against petitioner (rule 921(f)) received permission to strike three of the specifications in count I of the Notice of Formal Proceedings (counts I-C, I-D, and I-H). The masters filed their report on April 25, 1974, finding five specifications not proven (counts I-G, I-I, II-D, II-G, and IV). Of the remaining eleven specifications, six were found to constitute both wilful misconduct and prejudicial conduct (counts II-A, II-B, II-C, II-F, III, and V), three were found to constitute wilful misconduct (counts I-E, I-F, and II-E), and the final two specifications were found to constitute prejudicial conduct (counts I-A and I-B). The masters, who also made findings concerning factors in mitigation, unanimously recommended that petitioner be censured. After considering the masters' report (rule 912), written objections 784 thereto (rule 913), which were filed only by the examiners, and oral arguments (rule 914), the Commission, on July 16, 1974, issued its own findings of fact, conclusions of law and recommendation. (Rules 918 and 919.) By unanimous vote (save for a seven-to-two vote as to count I-A) the Commission adopted the masters' findings of fact concerning the eleven specifications found proven by the masters. The Commission unanimously concluded that these proven specifications constituted wilful misconduct. The Commission dismissed the five charges the masters found not proven,[4] as well as the three charges which had been stricken. The Commission made no findings concerning mitigation. By a five-to-four vote the Commission recommended to this court that petitioner be removed from office. (Rule 917.) Petitioner was thereby disqualified from acting as a judge for as long as the Commission's recommendation of removal remained pending before this court. (Cal. Const., art. VI, § 18, subd. (a).) Following the procedure set forth in Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270 [110 Cal. Rptr. 201, 515 P.2d 1], we granted a writ of review to examine the Commission's findings of fact, conclusions of law, and recommendation of removal. Since the ultimate, dispositive decision to censure or remove a judge has been entrusted to this court, we felt it our responsibility "in exercising that authority ... [to] make our own, independent evaluation of the record evidence adduced below." (Id., at p. 276.) (1) (See fn. 5.) In fulfilling that responsibility, we have examined in full detail the record of proceedings below and find in accordance with the Commission that the 11 specifications of misconduct not stricken or dismissed below[5] have been proven by "clear and convincing evidence" sufficient to sustain them "to 785 a reasonable certainty." (See Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 275.) 786 We turn now to a precis of the proven specifications of misconduct. As to each such specification, our findings of fact are set forth in the margin. Our findings are adapted, and in some instances adopted in haec verba, from those of the Commission. Count I generally charged petitioner with having conducted his court in a bizarre and unjudicial manner. In particular, he was alleged to have treated attorneys in a cavalier, rude and improper manner. Count I-E charged that petitioner had subjected an attorney to improper cross-examination when the attorney took the stand in support of his motion to disqualify petitioner (Code Civ. Proc., § 170.6), and had improperly levied "witness fees" against the attorney as a condition to petitioner's disqualification of himself.[6] In count I-F petitioner was charged with 787 having demeaned a deputy district attorney in open court and having placed him under restraint, because the deputy had appealed petitioner's disposition of another case.[7] Count I also set forth proven specifications 788 of petitioner's treatment of litigants in a cavalier, rude and improper manner. Thus, in count I-A, petitioner was alleged to have expressed his disbelief in the testimony of a defendant by having created a sound 789 commonly referred to as a "raspberry"[8] and in count I-B, petitioner was charged with having made a vulgar gesture (giving the "finger" or digitus impudicus) in reprimanding a defendant for coming in late in a traffic matter.[9] Count II generally alleged that petitioner's judicial conduct was subject to the improper influence of his business relations and social friendships. In counts II-A and II-B, petitioner was charged with having approached a deputy district attorney, as well as that deputy's superior, in an attempt to influence the disposition of a case pending against a friend.[10] In count II-C, it was charged that petitioner had attempted to 790 coerce a deputy district attorney into accepting a negotiated plea and, upon his refusal to accept, petitioner had suppressed the evidence and had acquitted the defendant, who was the son of a friend and political supporter.[11] In count II-E, petitioner was charged with having caused a defendant cited for engaging in a speed contest (Veh. Code, § 23109, subd. (a)) to appear before him rather than in the department in which the defendant had been directed to appear. When the defendant, who was the nephew of a friend and political supporter, appeared before petitioner, the charge against the defendant was reduced to illegal parking (Veh. Code, § 22502) without notice to or an appearance by the 791 district attorney.[12] And finally, in count II-F it was alleged that petitioner had improperly transferred to his own court the file in a felony-assault 792 case involving the same defendant as in count II-E, whereupon petitioner had ordered the defendant released on his own recognizance 793 so as to prevent the defendant from being booked and interrogated by the police pursuant to the execution of an outstanding warrant for his arrest.[13] 794 Count III consisted of a single specification alleging that petitioner had solicited another judge to dismiss a traffic citation which he had received and that petitioner had subsequently altered the reported disposition so as to convey the false impression that the citation had been dismissed upon petitioner's having completed traffic school.[14] Finally petitioner was charged in the single specification of count V with having consistently appointed two attorneys in criminal cases in which the defendant was either not entitled to counsel at public expense or the public defender had not been requested to represent them.[15] 795 Taken as a whole the record indicates that petitioner engaged in a pervasive course of conduct of overreaching his judicial authority by deciding cases for reasons other than the merits, by improperly influencing another judge, and by using the judicial process to gain special favors for friends and political supporters. The record also shows that petitioner has under color of judicial office repeatedly committed petty, vindictive, vulgar and otherwise unjudicial acts. We turn now to the question whether the conduct which we have found as a fact to have occurred is conduct for which discipline may constitutionally be imposed. Other than for habitual intemperance or wilful and persistent failure to perform his duties, the Constitution provides that a judge may be censured or removed from the bench only for wilful misconduct or prejudicial conduct. (See fn. 1, supra.) We first sought to give meaning to these standards of conduct in Geiler. (2) We explained that the more serious charge, "wilful misconduct," is reserved for unjudicial conduct committed in bad faith by a judge acting in his judicial capacity. (10 Cal.3d at pp. 283-284.) The term "bad faith" implies that the judge "intentionally committed acts which he knew or should have known were beyond his lawful power." (10 796 Cal.3d at p. 286.) As so used, "bad faith" entails actual malice as the motivation for a judge's acting ultra vires. The requisite intent must exceed mere volition; negligence alone, if not so gross as to call its genuineness into question, falls short of "bad faith." "Bad faith" also encompasses acts within the lawful power of a judge which nevertheless are committed for a corrupt purpose, i.e., for any purpose other than the faithful discharge of judicial duties. In sum, "bad faith" is quintessentially a concept of specific intent, requiring consciousness of purpose as an antecedent to a judge's acting maliciously or corruptly. (3) The "lesser included offense" of "prejudicial conduct" lacks the element of either "bad faith" or action in a judicial capacity.[16] "Prejudicial conduct" includes "conduct which a judge undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office" (Geiler, supra, 10 Cal.3d at p. 284), as well as "wilful misconduct out of office, i.e., unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity." (10 Cal.3d at p. 284, fn. 11.) We stressed in Geiler the importance of an objective rather than a subjective appraisal of judicial conduct in light of the constitutional standards for judicial discipline, and pursuant thereto we noted that the canons of the American Bar Association's Code of Judicial Conduct might usefully be consulted to give meaning to the constitutional standards.[17] (4) We examine first the proven specifications of count I. At the outset we refer to the third canon of the California Code of Judicial Conduct (see fn. 17, supra), which provides in pertinent part that "[a] 797 judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control." (Canon 3A(3).) Except for petitioner's vulgar "finger" gesture (count I-B; see fn. 9, supra) the proven specifications of count I show that petitioner engaged in a pervasive course of conduct of acting vindictively toward recalcitrant attorneys. With regard to petitioner's conduct toward Mr. Gianunzio (count I-E; see fn. 6, supra), it goes without saying that as a judge, petitioner should have known the proper method for handling a motion for disqualification. (Code Civ. Proc., § 170.6.) We have previously noted in connection with similar misconduct that "the rule has developed that, once an affidavit of prejudice has been filed under section 170.6, the court has no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the affidavit or its technical sufficiency under the statute.... When the affidavit is timely and properly made, immediate disqualification is mandatory.... As this court has noted in respect to the exercise of contempt powers, `[a] judge should bear in mind that he is engaged, not so much in vindicating his own character, as in promoting the respect due to the administration of the laws....'" (McCartney v. Commission on Judicial Qualifications, (1974) 12 Cal.3d 512, 531-532 [116 Cal. Rptr. 260, 526 P.2d 268].) Clearly, petitioner abused his judicial authority and acted out of revenge and hostility. Petitioner's treatment of Mr. Behrendt regarding the Peluso case (count I-F; see fn. 7, supra) was also an abuse of judicial authority and clearly motivated by feelings of animosity. Similarly, petitioner's contemptuous "raspberry" (count I-A; see fn. 8, supra) was a deliberate and malicious attempt to prejudice the defendant's case, motivated by petitioner's anger toward the deputy public defender. Because petitioner acted in bad faith in exceeding the bounds of his lawful power, we find each of these incidents to have been wilful misconduct. (5) We find petitioner's vulgar "finger" gesture (count I-B; see fn. 9, supra), which resulted in a loss of courtroom dignity, to have been prejudicial conduct. Because it was an isolated act directed towards edifying the defendant rather than prejudicing his case, it was not done in bad faith and hence cannot be deemed to have been wilful misconduct. (6) We examine next the proven specifications of count II, referring again to one of the canons of the California Code of Judicial Conduct: 798 "A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him...." (Cal. Code of Jud. Conduct, supra, Canon 2B.) The proven specifications of count II show a flagrant disregard for this canon. In each of the incidents, petitioner intentionally used the prestige or authority of his judicial office to effect or influence the disposition of a criminal case for a personal reason unconnected with the merits of the case, to wit, petitioner's desire to help friends and political supporters. Petitioner was thus acting in bad faith in attempting to influence the disposition of the Alchian case (counts II-A and II-B; see fn. 10, supra) which was not before him in any judicial capacity; in dismissing the Goulardt case (count II-C; see fn. 11, supra); in improperly assuming jurisdiction and acting without notice to the district attorney in the Leines traffic case (count II-E; see fn. 12, supra); as well as in improperly assuming jurisdiction and releasing Leines on his own recognizance in the assault case (count II-F; see fn. 13, supra). As to the Goulardt case, there are additional grounds for the conclusion that petitioner acted in bad faith. In another instance of the course of conduct involved in count I, petitioner's handling of the Goulardt case was motivated not only by political favoritism but also by a desire to punish the deputy district attorney for his refusal to accept petitioner's suggestion of a negotiated plea. We have no recourse but to conclude that each of the proven specifications of count II constituted wilful misconduct, save only with respect to our finding concerning petitioner's use of an obscenity when talking on the telephone with a deputy district attorney (finding No. 8, count II-F; see fn. 13, supra). For the reasons expressed above regarding the "finger" gesture (count I-B; see fn. 9, supra), we conclude that petitioner's injudicious comment constituted prejudicial conduct. In McCartney we established that the muttering of profanity need not necessarily be deemed serious enough to warrant removal or censure. It should be noted, however, that the conduct there in issue, although unbecoming and injudicious, was not intended to be heard and was "not directed as a reprimand to court personnel, attorneys or any other specific individuals." (McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d at p. 535.) (7) We also find petitioner's conduct regarding his own traffic citation (count III; see fn. 14, supra) to have been wilful misconduct. Inasmuch as the judicial district's practices allowed petitioner to be assigned automatically and ministerially to traffic school, we can only 799 conclude that petitioner acted in bad faith in circumventing proper legal procedure to have his citation dismissed as well as in thereafter concealing the fact that he had received preferential treatment. (8) Finally, we consider petitioner's illegal and unjustified appointments of two attorneys in criminal cases (count V; see fn. 15, supra). Once more we refer to the standards of conduct established by the California Code of Judicial Conduct: "A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered." (Cal. Code of Jud. Conduct, supra, (Canon 3B(4)).) California law provides that the court makes the final determination as to whether the defendant is financially qualified for representation at county expense. (Gov. Code, § 27707.) In counties where there is a public defender's office the court normally appoints the public defender to represent the indigent defendant. "Where there is no public defender, or the court finds that because of a conflict of interest or other reasons the public defender has properly refused to represent the indigent, the court shall appoint private counsel, in which case the court shall fix a reasonable fee and order that the fee, together with necessary expenses, be paid by the county." (Misdemeanor Procedure Bench Book, California College of Trial Judges (1971) § 1.39 (including a sample form for defendant's "declaration of financial inability to employ counsel"); see also California Municipal Justice Courts Manual, California Center for Judicial Education Research (1974) § 11.43 (also including the same sample form).) We find that petitioner acted in bad faith in exceeding the bounds of his lawful powers for the purpose of benefiting his friends and political supporters. His appointments clearly conflicted with the standards established by the California Code of Judicial Conduct. Therefore, we find petitioner's conduct to have been wilful misconduct. (9) We come now to our most important responsibility,[18] the decision of the ultimate question whether a judge, whose conduct has 800 been found to be either wilful misconduct or prejudicial conduct,[19] should be censured or removed from the bench. (See fn. 1, supra.) (10) Petitioner has presented a good deal of evidence that he worked hard in an overworked court, that he was conscientious in admonishing defendants of their rights, that he gave special attention to Spanish-speaking defendants, that he assumed judicial office in a court where "loose practices" prevailed and no rules existed, and that the lack of communication between the various judges of his court compounded the problems created by the considerable geographical distance between them. Petitioner offers this evidence to mitigate the adverse inferences from the procedural irregularities underlying his conduct. Petitioner concedes some of these irregularities but what he emphatically does not concede is the bad faith which we have found to pervade the proven specifications. Petitioner does not contend nor can we conceive that there are circumstances in which bad faith itself can be excused by extraneous circumstances. There can be no mitigation for maliciously motivated unjudicial conduct. Since we have found petitioner to have acted in bad faith on numerous occasions, we obviously have given no credit to petitioner's asseverations of mitigating circumstances. Petitioner first argues that he was the victim of the judicial district's "loose practices." We grant that loose practices prevailed, but petitioner was accused of more than merely following irregular procedures. His appointments of attorneys without first ascertaining the indigency of the defendant or whether the public defender's office refused representation because of a conflict of interest cannot justify his favoritism toward Messrs. Juarez and Winkler. Similarly, even though "loose practices" permitted reductions of certain Vehicle Code violations to parking violations, the transferring of cases from one court to another, and the granting of a release to a defendant not otherwise before the judge, special favors for friends and political supporters were not sanctioned by any such "loose practices." Petitioner also argues that he was inexperienced and that he had no idea that he was acting improperly because "no one complained." Although petitioner was "green" as a judge, he had 20 years of 801 experience as a criminal attorney, practicing in many courts. Furthermore, he had many reference works at his disposal to answer most questions as to proper courtroom procedure. (E.g., Misdemeanor Procedure Bench Book, supra. See also the recently prepared Cal. Municipal Justice Courts Manual, supra.) Finally, the evidence is clear and convincing that when attorneys did object, petitioner retaliated. Thus, his vengefulness went beyond mere ignorance of proper procedures. In the Fusilero case, the deputy public defender's objection resulted in his client getting petitioner's "raspberry." Petitioner was "provoked" by Deputy District Attorney Behrendt's erroneous affidavit filed for an appeal taken in another matter and put him in the jury box, notwithstanding the deputy objected and wanted his status clarified. We can accept the earlier error as justification for petitioner's "close scrutiny" of the search warrant application, even though the deputy district attorney merely participated in the preparation of the warrant and was not the affiant, but not as justification for restraining the deputy unlawfully. In the Goulardt matter, when Deputy District Attorney Hutchins objected, petitioner claimed he was being placed "in a box" and would have to do something he did not wish to do. And, in the Leines felony-assault matter, to Deputy District Attorney Nicholson's objection, petitioner responded with an obscenity. Petitioner finally argues that his heavy workload justified much of his conduct. We agree with the Commission that "petitioner's intent and motivation for committing these acts goes beyond the fact that he knew or should have known that he was acting beyond his lawful power. Here, the evidence clearly shows the reasons, and these reasons belie any excuse that petitioner proceeded improperly merely because he was overworked or inexperienced in proper procedures." Thus petitioner's claims that calendar pressures and language problems necessitated the appointment of private counsel do not conceal the fact that he was motivated by the desire to reward his friends and political supporters. To be sure, if petitioner's giving the "finger" to a defendant and his use of an obscenity during a telephone conversation with a deputy district attorney were the only charges brought against him, censure would be the appropriate discipline, since we find little risk of the recurrence of such conduct. We are persuaded to accept petitioner's explanation that in both incidents he was provoked, but that in any event, he realized how inappropriate his actions were and would not permit their recurrence. 802 In light of the remaining specifications of misconduct, however, we conclude that the Commission's recommendation of removal should be adopted. We find that petitioner's motives were far worse than those in issue in McCartney,[20] where we were persuaded that mitigating factors successfully rebutted any inference of bad faith. We would be remiss in our duty if we allowed petitioner's claims of justification to mitigate against removal, in view of the clear evidence of petitioner's petty tyranny and favoritism, which has led to our determination that petitioner has acted in bad faith. Mere censure of petitioner would woefully fail to convey our utter reproval of any judge who allows malice or other improper personal motivations to infect the administration of justice. We are ever mindful of the important role the municipal court judge fulfills in our system of justice. He handles more cases than any other judge in any other court and the municipal court is the only court that the average citizen is likely to observe or participate in. Furthermore, the municipal court judge has broad powers in the performance of his duties: he reviews the sufficiency of warrants and the validity of their execution; he presides over hearings which determine whether certain offenders will be bound over for trial in the superior court; he sets bail, appoints counsel and can even release defendants on their own recognizance; and finally, absent a clear showing of abuse, many of his rulings, decisions and findings are final. In fact, in misdemeanor cases, his authority is almost supreme, since he often acts as both judge and jury and rarely are his decisions appealed. Consequently, we must be careful that the municipal court judges of this state are fully capable of assuming the responsibilities inherent in such an important job. Because it is our duty to preserve the integrity and independence of the judiciary (Cal. Code Jud. Conduct, supra, Canon 1) and because we cannot tolerate the risk of recurrence of petitioner's conduct, we order Judge William D. Spruance of the Municipal Court of the San Leandro-Hayward Judicial District removed from office. This order is final forthwith. However, we feel that justice will best be served by allowing petitioner 803 to resume the practice of law.[21] We note that his long career as a lawyer was unblemished and that, as a practicing attorney, he will not have available that authority which he abused as a judge. We therefore further order that despite his removal from judicial office, William D. Spruance shall, if otherwise qualified, be permitted to practice law in the State of California. (See Cal. Const., art. VI, § 18, subd. (d).) NOTES [1] The California Constitution, article VI, section 8, provides in pertinent part: "The Commission on Judicial Qualifications consists of 2 judges of courts of appeal, 2 judges of superior courts, and one judge of a municipal court, each appointed by the Supreme Court; 2 members of the State Bar who have practiced law in this State for 10 years, appointed by its governing body; and 2 citizens who are not judges, retired judges, or members of the State Bar, appointed by the Governor and approved by the Senate, a majority of the membership concurring. All terms are 4 years." Article VI, section 18, subdivision (c), of the California Constitution provides: "On recommendation of the Commission on Judicial Qualifications the Supreme Court may (1) retire a judge for disability that seriously interferes with the performance of his duties and is or is likely to become permanent, and (2) censure or remove a judge for action occurring not more than 6 years prior to the commencement of his current term that constitutes wilful misconduct in office, wilful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute." [2] All references herein to specific rules are to the California Rules of Court. (See Cal. Const., art. VI, § 18, subd. (e).) [3] The special masters so appointed were Alvin E. Weinberger, retired Judge of the Superior Court of the City and County of San Francisco (presiding master): Albert A. Axelrod, retired Judge of the Municipal Court of the City and County of San Francisco: and Sidney Feinberg, Judge of the Municipal Court for the Palo Alto-Mountain View Judicial District of Santa Clara County. [4] The first part of count II-D, which overlaps part of count I-F, was considered and determined by the masters as a part of count I-F. The remaining allegations of count II-D were found to be not proven. The Commission, combining both counts, made findings pertaining solely to the charges involving count I-F. In the absence of any additional findings, we deem the remaining aspects of count II-D to have been impliedly dismissed by the Commission. [5] Among the arguments addressed to the court in this case is one of first impression which we feel should be answered directly. The examiners have argued that the dismissal by the Commission of certain of the specifications of misconduct by petitioner should not necessarily be accorded conclusive effect. The examiners contend that two of the dismissed specifications (counts I-G and I-I) were proven by clear and convincing evidence and constitute conduct for which the Constitution authorizes the imposition of discipline (see Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at pp. 283-284) notwithstanding the fact that the Commission, in stating that the specifications were "not sustained," chose not to issue any findings of fact and conclusions of law. The examiners maintain that because we have undertaken to review the record ourselves and to adopt our own findings of fact and conclusions of law, it is within our power to find proven any of the charges lodged against petitioner upon which evidence was received regardless of the Commission's disposition of such charges. We emphatically disagree. The Constitution clearly makes our power to discipline a judge for misconduct "contingent on the Commission having so recommended." (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 276; Cal.Const., art. VI, § 18, subd. (c) [see fn. 1, supra].) It would be entirely inconsistent with this constitutional division of functions for us to consider in passing on the Commission's recommendation any allegations of prejudicial conduct or wilful misconduct other than those which formed the basis of that recommendation. Unlike our statutory and inherent constitutional powers to control the professional conduct of members of the bar (see Bus. & Prof. Code, § 6107; In re Hallinan (1954) 43 Cal.2d 243, 253-254 [272 P.2d 768]), our shared constitutional power to censure or remove a judge for misconduct does not permit us to impose such discipline on our own motion. (Cf. Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 276.) Moreover, the examiners' argument overlooks the dual function which the Commission performs. When considering the masters' report and deciding upon its own findings of fact and conclusions of law, the Commission acts in an adjudicatory role with the prosecutorial function left to the examiners. (See rule 921(f).) But before us the Commission's role is exclusively that of an adversary, as the Commission is the respondent to the petition for a writ of review. (Rule 920(a).) The examiners appear before us merely as counsel to respondent. As such, the examiners are no more free than the Commission itself to argue against the validity of respondent's own adjudication of the facts and consequent conclusions of law. Its dismissal of certain of the specifications against petitioner having been based on its own evaluation of the evidentiary record in the light of the constitutionally ordained grounds for imposing discipline, the Commission is estopped from urging us, through counsel, to assess the record otherwise. For the foregoing reasons we conclude that the Constitution as well as sound procedure compel us to predicate our adoption, modification, or rejection of the Commission's recommendation solely upon those specifications in the Notice of Formal Proceedings which the Commission found both to have been proven as a matter of fact and to have constituted constitutionally sufficient grounds for the imposition of discipline. It would make a mockery of the constitutional requirement that our imposition of discipline on a judge be contingent "[o]n recommendation of the Commission" (Cal. Const., art. VI, § 18, subd. (c)), for us to contemplate basing our adoption or modification of such a recommendation on conduct which the Commission has not considered in formulating its recommendation. We wish to emphasize, however, that with respect to those specifications which have been found proven by the Commission and have been deemed by the Commission to be grounds for imposing discipline, and hence are properly before us in reviewing the Commission's recommendation that discipline in fact be imposed, we do not mean to intimate that this court gives dispositive effect to these determinations of questions of fact and law by the Commission. Such determinations are the condition precedent to our consideration of whether a judge is to be disciplined. This condition having been met, we regard it as established by Geiler that it is solely for this court to decide not only the question of fact whether the conduct in issue occurred but also, unfettered by the characterizations of the Commission, the question of law whether the proven conduct falls within the class of conduct for which the Constitution authorizes the imposition of discipline. (See Geiler, supra, 10 Cal.3d at pp. 276, 283-284.) We reserve decision whether we are similarly unfettered by the nature of the discipline recommended by the Commission, to wit, whether our power to "modify" a recommendation of the Commission (rule 920(a)) would allow us to impose greater rather than lesser discipline than that recommended, and thus to remove from office a judge whom the Commission has recommended merely be censured. [6] Our findings for count I-E are as follows: 1. On or about August 11, 1972, the case of People v. Dutro was set for hearing on a preliminary examination in department 1 of the San Leandro-Hayward Municipal Court. 2. The petitioner who normally presided over department 5 of said court was on the day in question also presiding over department 1, and had been so presiding for approximately two weeks, substituting for Judge Robert Fairwell. 3. On at least two different occasions immediately prior to August 11, 1972, petitioner had indicated to different deputy district attorneys of Alameda County that he remembered Attorney Victor J. Gianunzio with some degree of displeasure and hostility because of an incident which occurred several years prior when petitioner was a private counsel representing a party in civil litigation and Mr. Gianunzio represented the opposing party. 4. Mr. Gianunzio represented the defendant Dutro at the preliminary examination, and when the case was called he made an oral motion supported by an oral statement under oath (Code Civ. Proc., § 170.6, subd. (2)) seeking to disqualify petitioner from hearing the matter. 5. The oral statement of Mr. Gianunzio alleged: (a) he did not know until the day of the hearing that petitioner was sitting in department 1; (b) some years previous to petitioner's taking the bench the two men had been on opposite sides of some civil litigation and, as a result of an incident during the course of that litigation involving him and the petitioner, the latter had been held in contempt; (c) subsequent to that incident and prior to petitioner's assumption of the bench, he had made overtures to petitioner through third parties to correct the misunderstanding that had arisen and such overtures had been rebuffed; and (d) he was informed and believed that petitioner had expressed an opinion that he (Gianunzio) had "better not appear in his Court." 6. Petitioner questioned Mr. Gianunzio extensively in open court, demanding to know the source of his purported knowledge that petitioner was prejudiced against him. 7. Petitioner denied the disqualification motion on the ground that it was not timely, since (a) he had been sitting in department 1 for more than two weeks preceding the date of the hearing; (b) it was commonly known that during the months of July, August and September many judges take vacations, and (c) department 1 and department 5 had been combined for the period of July 31 August 25, 1972, inclusive, with petitioner presiding. 8. Petitioner had himself sworn during the course of the proceedings and testified that he had no present recollection of the prior incident between himself and Mr. Gianunzio. 9. Ultimately petitioner disqualified himself and continued the matter conditioned, on the motion of the district attorney, upon Mr. Gianunzio's paying witness fees for all witnesses (approximately 10), including police witnesses, summoned by the district attorney for the preliminary examination. 10. Subsequently, on August 14, 1972, petitioner and Mr. Gianunzio reconciled their differences and petitioner reduced the amount to be paid as witness fees reciting that the fees would be paid by Mr. Gianunzio out of his own pocket and without any appeal from the order directing such witness fee payment. 11. Petitioner knew or should have known the proper method for handling a motion for disqualification. (Code Civ. Proc., § 170.6.) He acted out of revenge and in bad faith in testifying from the bench that he had no present recollection of the prior incident between himself and Mr. Gianunzio, and in questioning Mr. Gianunzio in open court as to the source of Mr. Gianunzio's statement that petitioner was hostile toward him. [7] Our findings for count I-F are as follows: 1. On October 31, 1972, about 5:15 p.m., Deputy District Attorney Melville Behrendt appeared in petitioner's court for the purpose of asking petitioner to issue a search warrant. Deputy District Attorney Gerry Hubert, who was appearing for the People in a criminal matter, asked leave of court to bring up the search warrant. At this point Mr. Behrendt approached the bench with the search warrant and gave it to petitioner. 2. Prior to October 31, 1972, a notice of appeal had been filed by the district attorney from the decision of petitioner in the case of People v. Peluso. In support of the notice of appeal Mr. Behrendt had sworn to and filed his affidavit. 3. Upon Mr. Behrendt's approaching the bench, petitioner brought up the Peluso case, a matter not then pending before him and in no manner connected with the request to issue the search warrant. Petitioner proceeded to question Mr. Behrendt at length regarding the Peluso case affidavit. 4. Some 15 to 20 minutes later, after petitioner ordered production of Mr. Behrendt's affidavit and required him to read it, petitioner resumed his questioning. Mr. Behrendt was reluctant to answer any questions regarding the matter and the following colloquy ensued: "MR. BEHRENDT: Your Honor. I recognize this affidavit as the affidavit that I signed on the 7th day of September, 1972 and I think that's all I should say at this time and I believe if the court has any jurisdiction at this time to ask me questions, that matter is not regularly scheduled at this time for a hearing in this department without notice to myself and I believe now the Appellant [sic] Department of the Superior Court will "THE COURT: Well, I don't believe it has gone up. Mr. Behrendt. That's why I am trying to find out what is going to be the status of this case. My understanding was that while it was filed there has to be some sort of a writ taken in order to get it up to the Appellate Court and all I am asking you, if the statement made by you, page two, lines 12 through 13 "MR. BEHRENDT: I stated upon my affidavit that and that's all I should state at this time. "THE COURT: Did you check the record? Did you check with the Department of Motor Vehicles? Did you ever check the record of the courts to see if the court in fact ordered what you said, contrary to what it had stated in open court? "MR. BEHRENDT: May I ask what purpose these questions are being asked me at this time? "THE COURT: I don't believe. Mr. Behrendt, that it is your position as an officer to ask the court any questions. The court is asking you and the court. I believe, is entitled to a little courtesy. "MR. BEHRENDT: I have always been courteous to this court. Your Honor, and "THE COURT: Now, the "MR. BEHRENDT: and I have a right to reserve any answer to "THE COURT: Well, now, Mr. Behrendt, I'll tell you what. You have a seat in the jury box. "MR. BEHRENDT: Am I being held, Your Honor, in custody at this time? "THE COURT: If you wish it this way. "MR. BEHRENDT: I ask the court to put me under arrest. I may ask for a writ in this so I'm here in another matter before this court to ask this court to issue a search warrant and "THE COURT: Behrendt, you may be quiet, Mr. Behrendt. I'm not in a position to read that affidavit and in view of the fact that you are the person who prepared it. I want some time to read it carefully before I sign it. Now, you may have a seat. You may have a seat. Mr. Behrendt. "MR. BEHRENDT: Is the court holding me in contempt or holding me in custody at this time? "THE COURT: The court is telling you to sit down. "MR. BEHRENDT: Your Honor, at this time I intend to leave the courtroom unless I am being placed under arrest for contempt. "THE COURT: Mr. Behrendt, don't leave the courtroom. I'm telling you to sit down. Now, that is a court order, if you wish. "MR. BEHRENDT: Is the court placing me in custody at this time. Your Honor? "THE COURT: It depends on what you do, Mr. Behrendt. The court is telling you to sit down. Mr. Behrendt, I don't want to do anything rash. Now, you sit down. "MR. BEHRENDT: May I ask the court what authority it is holding me in this court? "THE COURT: Mr. Behrendt, that is a court order, to sit down until such time "MR. BEHRENDT: May the court define my status at this time, why I am being held inside this courtroom? "THE COURT: Until such time as I have had a chance to read the affidavit for your search warrant and go over it with you "MR. BEHRENDT: May I withdraw that search warrant from this court? "THE COURT: No, Mr. Behrendt, you may not. "MR. BEHRENDT: May I ask the court's reason for that? "THE COURT: Because the court was originally asked to sign it and the court will read it carefully. "MR. BEHRENDT: Well, Your Honor, if I might state to the court at this time, may I make a statement to the court at this time? "THE COURT: Mr. Behrendt. I have had enough of you, now, you sit down. "MR. BEHRENDT: Your Honor, at this time "MR. COURT: Mr. Behrendt, this is the last time. Now, sit down. "MR. BEHRENDT: Excuse me. Your Honor, I intend to leave the court. If I am no longer required "THE COURT: You are required here. "MR. BEHRENDT: May I ask the reason the court is requiring me to stay in this courtroom? "THE COURT: Do you want to escort him to a seat, please? "MR. BEHRENDT: Am I being placed in custody at this time? "THE COURT: Would you escort him to a seat, please? You may have a seat in the jury box." 5. Whereupon the bailiff took Mr. Behrendt by the arm and escorted him to the jury box. 6. The affidavit in support of the search warrant, though drafted by Mr. Behrendt, was signed by a police officer. 7. Ultimately, petitioner signed the search warrant after Mr. Behrendt had been kept in the jury box for approximately one-half hour, remarking that the search warrant was "slightly defective" in that night service had not been requested and petitioner was now so amending it. The subject matter of the search warrant was a vehicle then impounded and under police guard. Upon the signing of the warrant, petitioner suggested that in the future Mr. Behrendt should not return to petitioner's court. 8. It was petitioner's practice to order that persons placed in custody or under restraint, in open court, be seated in the jury box pending further action and only such persons in custody or under restraint, as a general rule, were so seated. 9. The affidavit filed pursuant to the appeal was in error and the deputy district attorney had, in fact, not checked the applicable records of the Department of Motor Vehicles. 10. Petitioner knew or should have known that it was beyond his judicial authority to bring up the Peluso case, to interrogate Mr. Behrendt regarding the Peluso matter, or to place Mr. Behrendt under restraint. Petitioner's attempt to put a gloss of good faith over the entire incident by stating that his careful scrutiny of the warrant had disclosed it to be "slightly defective" failed to conceal the fact that his conduct was clearly motivated by feelings of animosity toward Mr. Behrendt. [8] Our findings for count I-A are as follows: 1. Sometime in the summer of 1972 petitioner presided at the trial in the case of People v. Fusilero in the Fremont Judicial District. 2. While the defendant Fusilero was on the witness stand, testifying in his own behalf, petitioner emitted a contemptuous sound commonly called a "raspberry" to indicate his disbelief of the witness. Such derisive sounds had been made by petitioner in open court on other occasions. 3. Petitioner's contemptuous "raspberry" was at least partially motivated by his anger towards the deputy public defender for having refused petitioner's settlement proposal, and was an attempt to prejudice the defendant's case. [9] Our findings for count I-B are as follows: 1. In 1972 in open court petitioner did use a vulgar gesture (giving "the finger") in reprimanding a defendant for coming in late in a traffic matter. 2. The petitioner used the gesture to indicate that the tardiness of the defendant demonstrated the latter's lack of respect for the court and not to demean the defendant nor to suggest the attitude of the court toward the defendant. 3. The evidence is not clear and convincing that petitioner used the gesture on any other occasion. [10] Our findings for counts II-A and II-B are as follows: 1. On or about April 1972, there was a jury trial in the San Leandro-Hayward Judicial District before Judge Edgar, against one Alchian for an alleged violation of Vehicle Code section 23102. William Cosden, deputy district attorney, prosecuted, and Attorney Larry J. Frumes defended. The jury disagreed eleven to one for conviction. A mistrial was declared. Thereafter, the case was pending for resetting. 2. At all times material herein Mr. Alchian was a friend of petitioner. Mr. Frumes, a young attorney admitted to the bar in 1972, was dating petitioner's daughter and was associated with, or a law partner of, Robert Winkler, a close personal friend of petitioner for many years. (See finding No. 5, count V, fn. 15, infra.) 3. At no time material hereto was the case of People v. Alchian pending before petitioner, nor in the normal course of business would petitioner have presided over any jury retrial since he was not then assigned to criminal jury trials. 4. Subsequent to the mistrial in the Alchian case and while it was pending for resetting, petitioner, on a number of occasions, urged and sought to persuade Deputy District Attorney Cosden to reduce the charge against Mr. Alchian from Vehicle Code section 23102 (driving while under the influence of intoxicating beverage) to Vehicle Code section 23103 (reckless driving). On at least one occasion petitioner attempted similarly to persuade George Nicholson, then Mr. Cosden's superior in the district attorney's office. 5. Petitioner knew or should have known that he was using the prestige and authority of his judicial office to effect a disposition of a criminal case not before him in any judicial capacity and for reasons unconnected with the merits of the case. [11] Our findings for count II-C are as follows: 1. On May 26, 1972, the case of People v. Christopher Stephen Goulardt charging the defendant with violations of Penal Code section 647, subdivision (f) (under influence of drugs in a public place) and Health and Safety Code section 11530 (possession of marijuana), was tried before petitioner sitting without a jury. 2. The defendant Goulardt's father, Kenneth J. Goulardt, was then administrative aide to the Mayor of Hayward, had known petitioner for about 10 years, and had been active in his campaign. 3. The defense counsel was Attorney Julio Juarez, a campaign supporter and long-time personal friend of petitioner. (See finding No. 3, count V, fn. 15, infra.) 4. During the course of the trial petitioner made a suggestion, which he had been informed prior to trial would be unacceptable, namely, that the district attorney's office permit the defendant to plead to the Penal Code section 647, subdivision (f) charge and dismiss the Health and Safety Code section 11530 charge. 5. Deputy District Attorney Robert B. Hutchins refused to accede, whereupon petitioner engaged in further questioning of police officers and then stated that the district attorney's refusal to accept the plea had placed him "in a box" and he would have to do something he did not wish to do. 6. Although the record is confused as to whether certain witnesses were sworn, whether a formal motion to suppress evidence was made, whether any order other than that suppressing evidence under Penal Code section 1538.5 was made in open court, the minutes reveal that the defendant was found not guilty on both counts. 7. The Appellate Department of the Alameda County Superior Court reversed the trial court, and was itself reversed by the Court of Appeal, First District on the ground that the defendant having been once in jeopardy could not be retried despite what may have been "flagrant error" resulting in a "gross miscarriage of justice." 8. At the conclusion of the case petitioner stated that although the defendant was in fact guilty he had been saved by a technicality. 9. Petitioner purported to suppress all of the evidence against the defendant, not because he believed the defendant's arrest to have been invalid under the law as applied to the facts of the case, but rather because by resorting to the rubric of search and seizure law he could with colorable justification direct the acquittal of the defendant, notwithstanding what he knew or should have known, as an experienced criminal attorney, was ample evidence in the absence of any defense to find the defendant guilty of at least the Penal Code section 647, subdivision (f) charge. Petitioner's attempt to put a gloss of good faith on the whole incident, by declaring that the defendant "had been saved by a technicality," was intended to conceal the fact that petitioner's conduct was motivated by his relationship with the defendant's father and with the defendant's counsel, as well as petitioner's desire to punish the deputy district attorney for his refusal to accept petitioner's suggestion of a negotiated plea. [12] Our findings for count II-E are as follows: 1. On or about July 6, 1972, Ralph N. Leines was arrested and taken into custody by an officer of the San Leandro Police Department for a violation of Vehicle Code section 23109, subdivision (a), (speed contest). Later, on the same day, Mr. Leines was released on a citation directing him to appear before Department 2 of the San Leandro-Hayward Municipal Court, sitting in San Leandro. 2. Sometime between July 6, 1972, and July 19, 1972, Mr. Leines gave his citation to Mr. James M. Temple, a bail bondsman, who said that he would see what he could do for Mr. Leines. 3. On or about July 19, 1972, Mr. Temple met petitioner in his chambers. No one other than petitioner and Mr. Temple were present. Mr. Temple showed Mr. Leines' citation to petitioner, who wrote on the face of the citation as follows: "7-19-72 40 hours at SLBC by 9/30/72 all sessions ts Reduce on Completion to 22502 V.C. wt wds To 7/28/72 Ex SENT" 4. This meant that Mr. Leines was to (a) donate 40 hours of work to the San Leandro Boys Club by September 30, 1972; (b) attend traffic school; and (c) upon completion of traffic school, the charge of Vehicle Code section 23109 would be reduced to Vehicle Code section 22502 (illegal parking) so that no abstract of conviction would be forwarded to the Department of Motor Vehicles. 5. Mr. Temple was advised by petitioner to notify Mr. Leines to appear on July 20, 1972, in department 5 before petitioner. Mr. Temple did so advise Mr. Leines, who appeared as requested but his case was not calendared nor called, so he left department 5 after the clerk gave him a date about one week later. 6. Unknown to petitioner, a criminal complaint had been filed against Mr. Leines by the district attorney on July 11, 1972, on account of said violation of Vehicle Code section 23109. The criminal complaint was calendared before Judge Byers in department 2 in San Leandro, the department where Mr. Leines had been cited to appear. When Mr. Leines did not appear in department 2 on July 20, 1972, a bench warrant was issued for his arrest. 7. The following appears upon a form used by the San Leandro-Hayward Municipal Court to keep a record of the action taken in a case: "CRT. DATE ATTY PROCEEDINGS JUL 20 1972 NA - BW - $750 bail RKB JUL 20 pro-per QUASH B/W-40 HRS S.L.B.C. By 9/30/72 6 sessions Traffic School to 7/28/72 Dismiss on completion For Ex.Sent WDS 22502 7-28-72 T.S. assigned Oct 28 1972 AUG 8 '72 ENTERED ON MINUTES OF 8/3/72" There is an obvious irregularity in the date "JUL 20" on the second line under "CRT. DATE" which consists of the letters "JUL" imprinted by a rubber stamp, but with the numerals "20" handwritten by a felt tip pen, possibly obliterating other numerals underneath. 8. The official criminal docket for the case shows the following: "DATE JUDGE PROCEEDINGS 7-11-72 -- Complaint filed, sworn to by Larry Rinne, SLPD charging the defendant with having committed on or about July 6, 1972, the crimes of misdemeanors to wit: a violation of Section 23109a of the Vehicle Code, two counts thereof. Defendant was cited to appear on July 20, 1972 at 9:00 a.m. in Department 2. 7-20-72 Byers DDA: W. Cosden. Defendant not appearing, bench warrant ordered with bail set at $750.00 8-3-72 Spruance Action on calendar for arraignment. (Minutes do not reflect whether defendant was present.) Action transferred from Department 2. Bench warrant is ordered quashed. Time is waived, jury waived, guilty plea entered. Defendant sentenced to 40 hours work for San Leandro Boys Club to be completed by 9-30-72. Defendant is ordered to attend 6 sessions of Traffic School, charge to be reduced to 22502 of the Vehicle Code upon completion." 9. On or about July 28, 1972, Mr. Leines appeared before petitioner in department 5, entered his plea and was sentenced. At that time petitioner knew that the case was pending in department 2 and that Judge Byers had issued a bench warrant on account of Mr. Leines' failure to appear in department 2 on July 20, 1972. At said appearance of Mr. Leines, petitioner quashed the said bench warrant. 10. The Presiding Judge of the San Leandro-Hayward Municipal Court made no order, formal or informal, transferring the Leines case from department 2 to petitioner in department 5, nor was Judge Byers, presiding in department 2, consulted by petitioner regarding the case. 11. The district attorney's office had no knowledge or notice of petitioner's action in the case until on or about August 3, 1972. 12. On August 29, 1972, a notice of appeal was filed by the district attorney and ultimately the appellate department of the superior court set aside petitioner's judgment on the ground that it was void and remanded the case to the San Leandro-Hayward Municipal Court with directions that it be started over again with an arraignment of Mr. Leines. 13. Petitioner was friendly with James Temple's father and particularly with defendant Leines' uncle, Joseph Egan, who supported petitioner's election campaign. (See finding No. 3, count II-F, fn. 13, infra.) 14. Petitioner knew or should have known that he improperly assumed jurisdiction of the Leines case, in violation of rule 533(a), as then applicable, and that he acted in derogation of the rights of the People in proceeding without giving notice to the district attorney. It can only be concluded that petitioner's actions were motivated by nothing having to do with the merits of the case, but rather by his friendship with either Mr. Temple's father or Mr. Egan or both. [13] Our findings for count II-F are as follows: 1. On August 7, 1972, a felony assault complaint was filed in San Leandro by the district attorney against Ralph N. Leines, the same individual who appears in count II-E. A warrant for Mr. Leines' arrest was prepared but the issuance of the warrant was deferred to the following day. 2. On August 7, 1972, Mr. Leines called the police in San Leandro and was advised that there was a felony complaint on file against him and that the police wished to interview him at the police station. Mr. Leines called his parents for advice. 3. Mr. Leines' father met that day with his brother-in-law, Joseph Egan, business agent for the plasterers' union, who had known petitioner for some 12 years and had been active in his campaign for election in 1970 to his present judicial position. Mr. Egan and Mr. Leines, senior, went to the court in Hayward to see petitioner about 5 p.m., August 7, 1972, and met petitioner in the parking lot outside the court building, just as petitioner was about to leave. A few minutes thereafter the clerk of the court entered the parking lot and was approached by petitioner and directed to bring the court file on the Leines assault matter from San Leandro to Hayward and to have the case placed on petitioner's calendar for the morning of August 8, 1972. Mr. Egan was directed by petitioner to have the defendant Leines in his court the following morning. 4. On the morning of August 8, 1972, the case of People v. Leines charging a violation of Penal Code section 245, was called and petitioner ordered the defendant released on his own recognizance. Although he had been informed the previous night that the San Leandro Police Department wished to interview and book the defendant, petitioner did not require at that time that the defendant be booked. 5. At the time petitioner released defendant on his own recognizance he stated that while he did not know the defendant (he had sentenced him on July 28, 1972, see count II-E, fn. 12, supra) he did know defendant's uncle, Mr. Egan, and that this was the first time that defendant had been involved in anything. 6. The case properly should have been in a department of the court in San Leandro and in the regular course of business would not have been in petitioner's department for any purpose. 7. Petitioner, in proceeding as he did, intended (a) to prevent the police from seeking to interrogate the defendant prior to the defendant's securing counsel, and (b) to avoid the booking of the defendant, as a favor to Joseph Egan, a friend and political supporter of petitioner. 8. On or about August 9, 1972, Deputy District Attorney George Nicholson telephoned petitioner with reference to releasing Mr. Leines without ordering him to be booked. Petitioner informed Mr. Nicholson that as an attorney he had avoided booking whenever possible and, as a judge, he was going to continue to do so; that he had done favors for people in the past and he intended to continue to do so. When Deputy Nicholson suggested that his conduct was improper petitioner replied with an obscenity. [14] Our findings for count III are as follows: 1. On or about November 2, 1971, petitioner personally received a traffic citation for allegedly running a red light. (Veh. Code, § 21453, subd. (a).) The citation directed petitioner to appear within 15 days. 2. On the same day that he received the citation petitioner went to the chambers of Judge Robert Fairwell, then presiding in department 1, and in the presence of at least one other person, Richard Jones, then a deputy district attorney, handed the citation to Judge Fairwell, who attempted to disqualify himself in the proceeding by writing "disqualified" on the back of the copy of the citation. Petitioner indicated displeasure with Judge Fairwell either verbally or by facial expression, whereupon Judge Fairwell crossed out the word "disqualified" and wrote on the back of the citation the following: "11/2/71 Dismissed R.F." 3. Immediately thereafter petitioner, without the knowledge of Judge Fairwell, altered the above notation as follows: "11/2/71 all Sessions TS Dismissed on completion R.F." In fact, petitioner did not attend traffic school pursuant to his own notation on the citation. 4. The San Leandro-Hayward Municipal Court judges have authorized the clerks of the court to send defendants with first offenses to traffic school without any appearance before a judge. 5. We can only conclude that petitioner knowingly circumvented proper legal procedure and placed Judge Fairwell in an embarrassing predicament for the purpose of having his citation dismissed. The only reasonable inference from petitioner's alteration of Judge Fairwell's outright dismissal of the citation was that petitioner intended to convey the erroneous impression that the citation had been dismissed after petitioner had attended traffic school in accordance with the usual practice in the San Leandro-Hayward Municipal Court, thus concealing the fact that he had received preferential treatment. [15] Our findings for count V are as follows: 1. In the period July 1971 to July 1972 petitioner appointed two attorneys, Julio Juarez and Robert Winkler, to represent criminal defendants in cases pending in the San Leandro-Hayward Municipal Court. Mr. Juarez was appointed in 18 cases; Mr. Winkler in 9 cases. These 27 appointments constituted somewhat more than 44 percent of all appointments made by petitioner in that same period. The balance of petitioner's 61 appointments, constituting approximately 56 percent of his total appointments, were received by 22 other attorneys, no one of whom received more than 3 appointments, or approximately 5 percent of the total appointments. Petitioner maintained no list of attorneys available for appointment in appropriate criminal cases. 2. At all times material hereto, there was an Alameda County Public Defender's office duly constituted and able to afford legal representation to indigent defendants. In the 27 appointments that were made to Mr. Juarez and Mr. Winkler, no valid reason, such as conflict of interest, existed to justify such appointments, nor does it appear that in each of the 27 cases a determination of the indigency of these defendants had been duly made as required by Government Code section 27707. Mr. Juarez and Mr. Winkler were compensated by Alameda County public funds in amounts not less than $150 for each court appearance without regard to the nature of the service performed or the time expended pursuant to orders for payment of attorney's fees. 3. Mr. Juarez has been a friend of petitioner since 1951. At one time prior to petitioner's election to the municipal court, Mr. Juarez rented office space from the law firm of which petitioner was then a partner. Mr. Juarez presently rents office space from Mr. Winkler, whom he has known for some 10 years. Because of his long friendship with petitioner Mr. Juarez was very active in petitioner's campaign for election in 1970. 4. Mr. Juarez has been an attorney since 1966, practicing in the San Leandro-Hayward area. Between 1966 and the time petitioner took office in January 1971, Mr. Juarez had received approximately 8 to 10 appointments from all courts to represent criminal defendants. 5. Mr. Winkler has known petitioner for the past 25 years. They have been close personal friends since they were in law school together. Mr. Winkler was active in petitioner's campaign for election in 1970. 6. Petitioner knew or should have known the proper procedures required in appointing private counsel for indigent defendants. We can only conclude that petitioner's appointments of Messrs. Juarez and Winkler were motivated by his desire to reward his friends and election campaign supporters. [16] The masters found six specifications of misconduct to constitute both wilful misconduct and prejudicial conduct. Because "prejudicial conduct" is a "lesser included offense" of "wilful misconduct" the masters' additional findings that each of the six charges constituted prejudicial conduct were superfluous. [17] In Geiler we said: "The first two canons of the Code of Judicial Conduct proposed in 1972 by the American Bar Association's Special Committee on Standards of Judicial Conduct emphasize the importance of appraising alleged judicial misconduct objectively rather than subjectively. Canon One declares: `a judge should uphold the integrity and independence of the judiciary.' The accompanying text adds: `A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.' Canon Two speaks for itself: `A judge should avoid impropriety and the appearance of impropriety in all his activities.' (Italics added.)" (10 Cal.3d at pp. 281-282.) The American Bar Association's Code of Judicial Conduct was adopted by the House of Delegates on August 16, 1972. Subsequently, the Conference of California Judges adopted, with some modifications not relevant here, the American Bar Association Code of Judicial Conduct of 1972, effective January 1, 1975. (See Cal. Rules of Court, Appendix, div. II, Cal. Code of Jud. Conduct.) [18] Under the controlling principles of Geiler, it is our findings of fact and conclusions of law upon which we make our determination of the ultimate action to be taken. (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 276.) Although we give great weight to the masters' findings of fact (id., at pp. 275-276), the conclusions of law and the ultimate sanction are solely within our province and domain; we do not defer to either the masters or the Commission in deciding these matters. Language to the contrary in McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d at page 540 is no longer to be regarded as controlling. [19] As we noted in Geiler, "[i]t should be emphasized that our characterization of one ground for imposing discipline as more or less serious than the other does not imply that in a given case we would regard the ultimate sanction of removal as unjustified solely for `conduct prejudicial to the administration of justice which brings the judicial office into disrepute.'" (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 284, fn. 11.) [20] In McCartney we were concerned merely with "modes of proper judicial behavior necessarily learned only by judicial experience." (McCartney v. Commission on Judicial Qualifications, supra, 12 Cal.3d at p. 539.) Here, we are concerned with the basic respect for our institutions of justice which should be a fundamental concern of every judge and attorney. [21] Judge Geiler was also permitted to practice law despite his removal from the bench. We noted that his unjudicial conduct did not amount to moral turpitude, dishonesty or corruption (cf. Bus. & Prof. Code, § 6106), but that his removal was required "more by the high standards of judicial office than by his personal failings." (Geiler v. Commission on Judicial Qualifications, supra, 10 Cal.3d at p. 287.) We wish to point out that the misconduct here involved is more serious with regard to petitioner's qualifications to practice law. By allowing petitioner to resume the practice of law we do not mean to intimate that petitioner's pattern of conduct of bringing improper influences to bear upon the judicial office is more proper for an attorney than a judge. Were the conduct here involved committed by an attorney, although we do not perceive that the attorney would be subject to so severe a sanction as disbarment, he would certainly be subject to public reproval or other appropriate discipline.	{ "pile_set_name": "FreeLaw" }
507 So.2d 579 (1987) Carl Rupert SMITH v. STATE. 5 Div. 216. Court of Criminal Appeals of Alabama. April 28, 1987. 580 Morgan Reynolds, Clanton, for appellant. Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee. BOWEN, Presiding Judge. Carl Rupert Smith was convicted for escape in the first degree and sentenced to ninety-nine years' imprisonment as a habitual felony offender. Two issues are raised on this appeal from that conviction. I Smith contends that the trial court committed reversible error because it failed to inform the jury of his plea of not guilty prior to the commencement of the trial or the taking of testimony. At the beginning of his oral charge to the jury, after the presentation of all the evidence in the case, the trial judge did read the indictment and did instruct the jury that Smith had pleaded not guilty. The record also shows that on a date prior to trial, Smith was arraigned and pleaded not guilty. This issue was not preserved for appeal because the record contains no objection raising this matter. Even arraignment and plea can be waived by a defendant's failure to object to the lack thereof until after the jury has returned a verdict. Marsden v. State, 475 So.2d 588 (Ala.1984); Watts v. State, 460 So.2d 204 (Ala.1983). Furthermore, a plea may be taken "at any time before or during the trial before the jury retired." Newsome v. State, 49 Ala.App. 248, 251, 270 So.2d 680 (1972). II Chilton County Chief Deputy Sheriff Benny Mims was properly allowed to testify to the effect that Smith escaped on April 21, 1985, and was captured on July 1, 1986. In a prosecution for escape from hard labor, "[i]t was competent for the state to prove where the defendant was captured, and when he was brought back, as tending to show that he had run away from the hard labor." Bowden v. State, 19 Ala.App. 377, 379, 97 So. 467 (1923). "All evasions, or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts. * * We think it permissible to prove the fact of flight, and all the facts connected with it, either to increase or diminish the probative force of the fact itself." Bowles v. State, 58 Ala. 335, 338 (1877). See Sweatt v. State, 156 Ala. 85, 47 So. 194, 195 (1908) (state could show that deputy sheriff looked for accused for three or four weeks before finding him). "The state is generally given wide latitude or freedom in proving things that occurred during the accused's flight." C. Gamble, McElroy's Alabama Evidence § 190.01(1) (3rd ed. 1977). The judgment of the circuit court is affirmed. AFFIRMED. All Judges concur.	{ "pile_set_name": "FreeLaw" }
79 F.3d 1142 NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Bashawn Lee HANBERRY, a/k/a Bo, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Danny Ray WELLINGTON, a/k/a D Boy, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ronald Emanuel HANBERRY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Eddie Jerod HESTER, a/k/a E-Dog, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ricky Frazellas PUREFOY, a/k/a Little Ricky, Defendant-Appellant. Nos. 95-5110, 95-5119, 95-5111, 95-5120, 95-5118. United States Court of Appeals, Fourth Circuit. Decided: March 20, 1996 ARGUED: Thomas Kieran Maher, RUDOLPH & MAHER, Chapel Hill, North Carolina, for Appellant Wellington; William Carlton Ingram, Jr., FLOYD, ALLEN & JACOBS, Greensboro, North Carolina, for Appellant Bashawn Hanberry; Eric David Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant Ronald Hanberry; Ernest Raymond Alexander, Jr., Greensboro, North Carolina, for Appellant Hester; Richard Allen Elmore, PFAFF, ELMORE & ALBRIGHT, Greensboro, North Carolina, for Appellant Purefoy. David Bernard Smith, Assistant United States Attorney/Senior Litigation Counsel, Greensboro, North Carolina, for Appellee. ON BRIEF: William E. Martin, Federal Public Defender, Nathan D. Beamguard, First Year Law Student, Wake Forest School of Law, Greensboro, North Carolina, for Appellant Ronald Hanberry. Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee. Before WIDENER, WILKINS, and MICHAEL, Circuit Judges. Affirmed in part and remanded in part by unpublished per curiam opinion. OPINION PER CURIAM: 1 Bashawn Lee Hanberry, Danny Ray Wellington, Ronald Emanuel Hanberry, Eddie Jerod Hester, and Ricky Frazellas Purefoy (collectively, "Appellants") appeal their convictions of conspiracy to possess with the intent to distribute and to distribute cocaine base, see 21 U.S.C.A. § 846 (West Supp.1995), and related offenses1 as well as their resulting sentences. The only meritorious issue presented for review is the contention that in light of Bailey v. United States, 116 S.Ct. 501 (1995), further proceedings before the district court are warranted with respect to Bashawn Hanberry's and Hester's convictions pursuant to 18 U.S.C.A. § 924(c)(1) (West Supp.1995). Accordingly, we affirm Appellants' convictions and sentences--except for the § 924(c)(1) convictions, which we remand for further proceedings. I. 2 Viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80 (1942), the evidence presented at trial demonstrated that Appellants participated in a conspiracy to distribute cocaine base in the Oxford Manor area of Durham, North Carolina that centered principally around a social organization known as the "Pimps." Bashawn and Ronald Hanberry became suppliers for the conspiracy following the 1991 death of the former supplier, their elder brother Jamal. Numerous coconspirators testified concerning the Hanberrys' distribution of cocaine and cocaine base to the remaining Appellants and to instances of conversion of cocaine into cocaine base; these witnesses also testified about further preparation and distribution activities by Wellington, Hester, and Purefoy. In addition, several coconspirators testified regarding Appellants' involvement with firearms. A law enforcement officer testified as to the participation of Bashawn Hanberry and Hester in cocaine base transactions entered into with the officer while he was acting in an undercover capacity. And, another law enforcement officer testified concerning a 1993 felony traffic stop of a vehicle driven by Hester that resulted in the seizure of cocaine base and two firearms. The jury also was presented with various documents, firearms, and ammunition seized pursuant to warrants executed at the Hanberrys' residences. II. 3 Appellants raise several issues with respect to their convictions, none of which merits extended consideration. The evidence was sufficient to sustain the conspiracy convictions of Purefoy and Hester as well as Ronald Hanberry's conviction for possessing ammunition after having been convicted of a crime punishable by imprisonment for a term exceeding one year. See Glasser, 315 U.S. at 80. Congress did not exceed its power under the Commerce Clause in enacting 18 U.S.C.A. § 922(g)(1) (West Supp.1995). See Scarborough v. United States, 431 U.S. 563, 567-78 (1977); United States v. Sorrentino, 72 F.3d 294, 296-97 (2d Cir.1995). And, the district court did not deprive Bashawn Hanberry of a fair trial by admonishing a Government witness, outside the presence of the jury, to tell the truth. See Paylor v. United States, 404 F.2d 1263, 1263-64 (D.C.Cir.1968) (per curiam). 4 One issue, however, warrants expanded discussion. While this appeal was pending, the Supreme Court decided Bailey v. United States, 116 S.Ct. 501 (1995). The Bailey Court held that to sustain a conviction under the "use" prong of § 924(c)(1), the Government must prove that a defendant actively employed a firearm during and in relation to the predicate drug trafficking offense and that evidence of mere proximity or accessibility is insufficient to support a conviction. Id. at 505-06. Thus, we are called upon to consider whether application of the standard enunciated in Bailey requires us to vacate Bashawn Hanberry's and Hester's § 924(c)(1) convictions under a plain error standard. 5 Unfortunately, we are not in a position to best decide this question in the first instance. The issue was not addressed in the parties' briefs; the record is voluminous, and not all of the relevant portions were reproduced in the joint appendix. Consequently, we remand these § 924(c)(1) convictions for further proceedings before the district court. III. 6 The sentencing issues presented by Appellants are meritless. The factual findings by the district court that Wellington and Hester should be held accountable for quantities of cocaine base distributed by other members of the conspiracy are not clearly erroneous. See United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.1992). The rule of lenity does not require that Appellants' sentences be calculated using cocaine rather than cocaine base. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir.), cert. denied, 116 S.Ct. 329 (1995). And, the 100:1 treatment of cocaine base to cocaine for sentencing purposes is not unconstitutional. United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir.), cert. denied, 114 S.Ct. 2754 (1994). Finally, Bashawn Hanberry's and Hester's argument that the Government waived its right to seek a two-level sentencing enhancement for possession of a firearm is not properly before us since this enhancement becomes applicable only if the § 924(c)(1) convictions are vacated. See United States Sentencing Commission, Guidelines Manual, §§ 2D1.1(b)(1); 2K2.4, comment. (n. 2) (Nov.1994). IV. 7 For the reasons set forth above, we remand for the district court to consider in the first instance whether Bashawn Hanberry's and Hester's § 924(c)(1) convictions must be vacated in light of Bailey and for such other proceedings as may be appropriate in light of its decision. We affirm Appellants' convictions and sentences in all remaining respects.2 AFFIRMED IN PART; REMANDED IN PART 1 Purefoy was also convicted of a substantive charge of possession of cocaine base with the intent to distribute. See 21 U.S.C.A. § 841(a)(1) (West 1981). Bashawn Hanberry and Hester were convicted of using or carrying a firearm during and in relation to a drug trafficking offense. See 18 U.S.C.A. § 924(c)(1) (West Supp.1995). And, Ronald Hanberry was convicted of possessing ammunition after having been convicted of a crime punishable by imprisonment for a term exceeding one year. See 18 U.S.C.A. § 922(g)(1) (West Supp.1995) 2 We have considered the remaining arguments presented by Appellants and find them to be without merit	{ "pile_set_name": "FreeLaw" }
323 F.3d 1051 CONTRACTORS' LABOR POOL, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.International Brotherhood of Electrical Workers, AFL-CIO, Local 46, et al., Intervenors. No. 01-1393. United States Court of Appeals, District of Columbia Circuit. Argued February 11, 2003. Decided March 28, 2003. COPYRIGHT MATERIAL OMITTED Robert W. Tollen argued the cause and filed the briefs for petitioner. William M. Bernstein, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith Jason, Attorney. Deirdre C. Fitzpatrick and Julie F. Marcus, Attorneys, entered appearances. Robert D. Kurnick argued the cause for the intervenor unions and amicus curiae International Brotherhood of Electrical Workers, AFL-CIO in support of respondent. With him on the brief was David Hannah. Before: EDWARDS and ROGERS, Circuit Judges, and SILBERMAN, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge SILBERMAN. SILBERMAN, Senior Circuit Judge: 1 Contractors' Labor Pool (CLP) challenges a Board determination that CLP's policy of refusing to hire applicants whose recent wages were 30% higher or lower than its starting wages was discriminatory within the meaning of § 8(a)(3) of the National Labor Relations Act. Also challenged is the Board's conclusion that CLP discriminated against several paid union organizers in assignment because, according to petitioner, they were not its "employees" or, alternatively, because of a "disabling conflict," they were engaged in unprotected activity. We agree with petitioner's first challenge but reject its second and therefore grant the petition in part and deny it in part. I. 2 CLP, a nonunion company, supplies, on a temporary basis, several thousand construction workers a year to various contractors in Arizona, California, Oregon, Washington, Nevada, and Colorado.1 It operates 15 offices in those states. Essentially, it employs a permanent labor pool from which contractors draw skilled and unskilled workers as needed. Its management believes that its success depends on its ability to keep a large number of reliable employees. Accordingly, it has adopted various measures to improve employee retention (and productivity) since its inception in 1987. 3 For instance, it sought to improve its applicant screening process in the early 1990s by examining applicants' driving records and references with greater care. And beginning in 1989, an applicant was asked to specify an acceptable hourly rate. If the figure was substantially higher than CLP was willing to pay, that person would not be hired for it was assumed that the employee would soon become dissatisfied and quit. Petitioner's CEO Thomas McCune testified that short-term employees, moreover, were prone to substandard work and accidents. 4 In 1993 the company conducted a worker retention study that served to further refine petitioner's hiring policy. The available data indicated that workers who had previously earned wages that were either 30% higher or lower than CLP's wages would be significantly less likely to work for the company for 100 hours or more within a 40-day period. The study predicted that adopting a 30% rule (precluding applicants whose prior wages deviated by 30% from CLP's starting salary) would eliminate some eligible workers. But it would cause CLP's important retention rate to rise 3.5%. Accordingly, in 1994 CLP adopted the 30% hiring standard. In the first full year following adoption of the 30% rule the percentage of applicants deemed ineligible for hire increased from 70 to 75%, but CLP's retention rate increased from 57.6 to 63.9%, workers compensation costs were significantly reduced, and the company's safety record showed substantial improvement. 5 The ALJ specifically determined that petitioner's implementation of its 30% rule was not motivated by antiunion animus; instead CLP had pursued a legitimate business objective. The Board adopted that recommended finding. Nevertheless, the ALJ and the Board concluded that petitioner's 30% rule operated to exclude workers in a number of western labor markets who previously had worked on jobs covered by a union collective bargaining agreement.2 The effect was most pronounced in Southern California; CLP's top hourly rate for journeymen electricians was $18.00 in that market whereas the average union scale was $26.00. In Seattle, on the other hand, the ALJ concluded that the differential was less. 6 Petitioner contends that union rates are not 30% higher than CLP's in Idaho, parts of Washington state and Denver, Colorado. It cites an ALJ determination to that effect—at least respecting Denver—in a companion case against it, in which the judge recommended against a finding of an § 8(a)(3) violation. See CONTRACTORS LABOR POOL, INC. (IBEW LOCAL UNION 68), 1999 WL 33453678, at 11. However, it does not appear that it produced clear evidence as to its rates in Idaho and central and western Washington. The Board's brief is virtually silent on the matter and its decision, without referring to the Denver case, only said that "it is no defense that a few union members may have passed CLP's 30% rule." In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at 5 n. 17. 7 The ALJ concluded, and three of the four Board members agreed, relying upon the Supreme Court's decision in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), that CLP violated § 8(a)(3) because the 30% rule excluded previously organized workers and therefore had "inherently destructive" effects on employees' § 7 rights. Chairman Hurtgen dissented from the Board's order because, in his view, there was no showing of discrimination or unlawful motive. B. 8 The second issue in the case — the Board's finding of petitioner's discriminatory assignment of two union organizers — also has its genesis in the early 1990s when Local 441 began targeting CLP as part of the broader campaign against nonunion employers on the West Coast. The Local employed what is called "salts," paid organizers sent to job sites ostensibly to obtain employment but with the objective of inducing union organization. The ALJ determined that some of these salts were instructed not only to uncover unfair labor practices but to provoke them. As one organizer put it, their presence on a job-site was not necessarily "to build their damn job," but if organizing tactics were unsuccessful to "bankrupt the contractors." In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at 13. Local 441 issued several newsletters boasting of successful efforts in getting some of the larger nonunion contractors to close their businesses. CLP claims to have learned about the full extent of Local 441's salting activities only at the unfair labor practice hearing in this case.3 9 As part of this salting campaign Local 441 President Vaughn Hedges applied for employment with CLP in 1992 without making the company aware of his union affiliation. After successfully passing the screening test he was referred to CLP customer Aztech Electric in California and reported to its construction site in November 1992. Four days later he was released from work at Aztech by foreman Adamik. Aztech claimed that Hedges had completed a particular project and it wanted to give additional work to some regular employees. After being told that he was being laid off, Hedges started talking about the union and how it would be best for the employees if Aztech Electric unionized. He then signed his timecard, left the site, and went to his truck, where he picked up some union literature and began to distribute it to other electricians. Adamik then told Hedges to leave the jobsite and Hedges complied. 10 Hedges did not talk to CLP about the incident until the next day. The staff manager Margo Nezrab accused Hedges of distributing literature on CLP's time after he had been laid off. Hedges admitted this was true. Nezrab then added that CLP gets contracts from companies like Aztech precisely because it is a nonunion employer. She made it clear that union literature was not welcome on the job, but did suggest that Hedges would continue to get work if available. Hedges received his paycheck later that week. CLP never contacted him regarding work again, and testimony revealed that a "DNU (Do Not Use) until we talk" was entered into Hedges' CLP computer file after the episode. In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at 61. 11 Shawn Smith was also a Local 441 member at the time these events occurred. In September 1992, Local 441 Business Manager Doug Saunders told him to apply with CLP. He applied and was accepted for employment. Smith was let go from his second assignment with Aztech Electric on November 25, 1992, the day after Hedges was released, also because his job had been completed. The ALJ noted that Aztech foreman Adamik was aware of his union affiliation and intent to distribute union literature. Smith, like Hedges, received a "DNU" code and was not referred another job. 12 Based on this record, the ALJ determined that CLP's actions against these employees would be violative of § 8(a)(1) and (3) of the Act, but decided that because Local 441 paid union organizers purposed to engage in activities inimical to the employers' operations, a "disabling conflict" had been created. Accordingly, the salts were no longer "employees" within the meaning of § 2(3) of the Act. The Board majority disagreed, holding that even if a disabling conflict had existed between Local 441 and CLP, which would mean their activity was "unprotected," the salts nevertheless had statutory employee status under N.L.R.B. v. Town & Country Elec., Inc., 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995). The Board did not actually decide whether a disabling conflict had been created, because CLP had argued that salts were not statutory employees. Nevertheless, the Board went on to hold that even assuming arguendo that such a conflict existed,4 and therefore the employees were engaged in unprotected activity, CLP did not demonstrate that it actually relied on this conflict in making its workplace decision; accordingly it could not raise it as a defense. (Chairman Hurtgen dissented only on the limited issue whether petitioner would be entitled to toll its backpay liability if it could show that once it discovered—at the unfair labor practice hearing — that Hedges and Smith were engaged in a disabling conflict it would not have assigned work to them.) The Board ordered CLP to immediately reinstate the employees and make them whole for any losses suffered as a result of the discriminatory activity. And the order precluded the ALJ from opening up the record on the question of whether CLP could rely on the alleged disabling conflict to toll backpay liability or for any other purpose. II. A. 13 Section 8(a)(3) makes it unlawful for an employee "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3) (emphasis added). Petitioner's main challenge is to the Board's determination that the 30% rule is "inherently destructive" of employees' § 7 rights to engage in protected activity, and therefore the employer's motive—whether to encourage or discourage membership in any labor organization—is irrelevant. (All but two employees are affected by this determination.) In support of this challenge, petitioner raises two arguments; its 30% rule is not inherently destructive and, in any event, the Board's explicit finding that the employer's motivation, in adopting the 30% rule, was not tainted by antiunion animus makes a § 8(a)(3) violation analytically impossible. 14 The contention that the 30% rule is not inherently destructive is not completely fleshed out. 15 Petitioner points to Chairman Hurtgen's dissent which argued: 16 [T]here is no showing of discrimination and thus the Great Dane analysis ... does not even apply. Respondent did not discriminate along Section 7 lines. Rather, Respondent CLP drew a line between high-wage earners and low-wage earners. A high-wage earner with a nonunion background (e.g., based on skill and experience) was not eligible for hire. A nonhigh-wage earner with a union background was eligible for hire. Thus there was no discrimination prohibited by the Act. 17 In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at 28 (Chairman Hurtgen, dissenting). We take the Chairman to mean that the 30% rule, by itself, is not evidence of discrimination. If evidence had been presented that petitioner had adopted the rule for the very purpose of excluding applicants who had recently been covered by union contracts that would be a different matter, even if the operation of the rule excluded nonunion applicants as well. See, e.g., Birch Run Welding & Fabricating, Inc. v. N.L.R.B., 761 F.2d 1175, 1180 (6th Cir.1985) (ordering general layoffs to discourage or retaliate against union activity is unlawful discrimination, even though some employees opposed to the union were laid-off as well). Moreover, it would seem to us that, at least theoretically, even a facially nondiscriminatory rule could be shown to invariably discriminate against union adherents and therefore might be termed "inherently destructive." Be that as it may, the Chairman's dissent does not squarely respond to the majority's contention that petitioner's rule is inherently destructive. 18 Petitioner emphasizes, however, that its company-wide 30% rule does not adversely impact applicants recently covered by union contracts in all of its labor markets. In other words, as we would re-characterize petitioner's argument, an employer's practice can hardly be described as inherently destructive of § 7 rights if its very destructiveness depends on independent variables—in this case actual evidence of the differential between petitioner's starting wages and the union wages in any particular locality. In the line of Supreme Court cases that have endorsed Board findings that particular practices are inherently destructive, and therefore § 8(a)(3) violations are made out without further evidence of an employer's antiunion animus, those practices can be regarded as having an inevitable negative impact on union adherents — without regard to any other facts. See, e.g., N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967) (employer's refusal to pay vacation benefits accrued under terminated collective bargaining agreement to strikers while giving such payments to nonstrikers and replacements); Metropolitan Edison Co. v. N.L.R.B., 460 U.S. 693, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983) (employer disciplined union officials more severely than other employees for participation in a work stoppage). 19 Still, given the record confusion as to the actual situation in petitioner's various labor markets as well as the imprecise nature of both petitioner's and the Board's arguments on this issue, we think it preferable not to decide whether petitioner's practice could be described as inherently destructive and instead to pass on to petitioner's main point: that once the Board found explicitly that it had acted without an antiunion animus it was not possible for the Board to rely on the inherently destructive rationale. 20 The keystone of the Board's decision is its reliance on a discrete quotation from Great Dane: 21 First, if it can reasonably be concluded that the employer's discriminatory conduct was `inherently destructive' of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. 22 Great Dane Trailers, 388 U.S. at 34, 87 S.Ct. 1792 (emphasis added). Drawing on this language the Board concluded it was free to hold that petitioner violated § 8(a)(3) even if it also found that petitioner's motive was blameless. The Board analogized its new legal rationale to "the disparate impact theory long applied in cases prosecuted under Title VII of the Civil Rights Act of 1964." In re Commercial Sys., 2001 WL 1011927, at 5. Petitioner argues, and we agree, that the Board over reads the quotation from Great Dane, particularly in light of Supreme Court cases upon which Great Dane relied as well as cases that followed Great Dane and interpreted it. 23 In Great Dane an employer refused to pay strikers vacation benefits accrued under an expired collective bargaining agreement yet at the same time paying equivalent benefits to non-strikers. The Court of Appeals had refused to enforce the Board's order because of a lack of explicit evidence of the employer's antiunion motivation. The Supreme Court acknowledged that although the employer's practice was clearly discriminatory (on its face) and that it was obviously "capable of discouraging membership in a labor organization" the statute usually requires more—specific evidence of an antiunion purpose. N.L.R.B. v. Great Dane Trailers, 388 U.S. at 32, 87 S.Ct. 1792. Reviewing its past cases, however, it pointed out that some conduct carries with it "unavoidable consequences which the employer not only foresaw but which he must have intended and thus bears its own indicia of intent." Id. at 33, 87 S.Ct. 1792 (quoting N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 231, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963)). 24 That articulation makes clear that certain employer practices permit the Board to draw what is often referred to as "secondary inferences," see, e.g., N.L.R.B. v. Universal Camera Corp., 190 F.2d 429, 432 (2d Cir.1951) (Frank, J. concurring), of a discriminatory motive without any other evidence. To be sure, the quote upon which the Board relies, if read alone, could support the notion that, given certain conduct, an employer's motive is not relevant (although even the quote does not suggest that an explicit finding of a benign motive would be of no significance). However, the wording upon which the Board relies is in the paragraph immediately following the Court's discussion of its prior cases and its quote from Erie Resistor. Moreover, it is preceded by the sentence (which the Board does not quote): "[f]rom this review of our recent decisions, several principles of controlling importance here can be distilled." Great Dane Trailers, 388 U.S. at 34, 87 S.Ct. 1792. It seems rather plain to us, therefore, that the Court did not mean to deviate from its past line of cases; when it said, "no proof of an antiunion motivation is needed." Id. It obviously meant no further proof of antiunion motivation, because if the employer's conduct was inherently destructive of union rights the Board could legitimately draw the inference that the employer had the proscribed motivation. If there were any doubt as to the Court's meaning in Great Dane— which we do not harbor—some years later in Metropolitan Edison, the Court described Great Dane as holding that "[s]ome conduct is so inherently destructive of employee interests that it carries with it a strong inference of impermissible motive." Metropolitan Edison, 460 U.S. at 701, 103 S.Ct. 1467 (emphasis added).5 25 The intervenors, but not the Board's decision, rely heavily on another rather old Supreme Court case, Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), to support the argument that a § 8(a)(3) violation can be made out without regard to an employer's motivation. There an employer enforced an overly broad no solicitation rule, (on nonworking time), which the Board held violated § 8(a)(1) because it interfered with union organizing attempts and therefore the employees' § 7 rights. Although the Court recognized that the employer's adoption and enforcement of the rule was not motivated by antiunion animus nor did it discriminate against union solicitation, it nevertheless affirmed the Board's holding that discharging employees who violated the rule was in turn a violation of § 8(a)(3). Subsequently, in Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954), the Court "explained" its prior holding as follows: "Since the rules were no defense and the employers intended to discriminate solely on the ground of such protected union activity, it did not matter that they did not intend to discourage membership since such was a foreseeable result." Id. at 46, 74 S.Ct. 323. The difficulty with that description is that the union solicitation was treated as protected activity as a matter of law; there was no showing that the employer's policy, which applied to all kinds of solicitation, was directed at union organization. To say then, that the employer "intended to discriminate solely on the grounds of ... protected union activity" is somewhat of a bootstrap analysis. Id. 26 Admittedly, the holding in Republic Aviation and the rather unsatisfactory explanation of that case in Radio Officers' does not seem consistent with the Erie Resistor, Great Dane, Metropolitan line of cases. We think Republic Aviation should be regarded as something of an anomaly. It stands for the limited proposition that if an employer adopts an illegal rule (a violation of § 8(a)(1) as a matter of law) and then fires an employee for transgressing the rule, it automatically violates § 8(a)(3) even though it adopted the rule for wholly benign reasons. See Republic Aviation, 324 U.S. at 805, 65 S.Ct. 982. 27 In sum, the Supreme Court's long-standing interpretation of § 8(a)(3) is plainly at odds with the Board's reasoning in this case. Indispensable to a determination of a violation of § 8(a)(3) — at least outside the Republic Aviation exception—is a finding that an employer acted out of an anti- (or "pro-) union motivation." Whatever legitimate inference that might be drawn from petitioner's adoption of the 30% rule the Board certainly cannot conclude explicitly that petitioner's motivation is benign and then hold that its practice independently violates § 8(a)(3). 28 It also follows that the Board may not draw support for its decision from the disparate impact line of cases under Title VII. For one thing, the statutory language is different. Title VII is broader than § 8(a)(3), for it is unlawful for an employer (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 29 (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. 30 42 U.S.C.A. § 2000e-2(a). Second, as we have noted, the Court has never imported that concept into its cases interpreting § 8(a)(3). Indeed, the Court has been reluctant to extend the disparate impact theory to other laws prohibiting discrimination even where the statutory language bears greater resemblance. See, e.g., Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ("[d]isparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the Age Discrimination in Employment Act."); Alexander v. Sandoval, 532 U.S. 275, 280-81, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ("it is similarly beyond dispute ... that § 601 prohibits only intentional discrimination ... [although] regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups"); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ("We are not disposed to adopt this more rigorous standard [disparate impact] for the purposes of applying the Fifth and the Fourteenth Amendments...."). III. 31 There remains the question whether the Board's finding that petitioner discriminated against Hedges and Smith is vulnerable. That finding led to a Board determination that petitioner violated § 8(a)(3) quite independently of its 30% rule. Petitioner's main argument, that these two "salts," and other paid organizers, as a matter of law were not petitioner's employees under the NLRA, but were rather employees of the union, is foreclosed essentially by the Supreme Court's opinion in Town & Country Electric, Inc., 516 U.S. at 98, 116 S.Ct. 450, 133 L.Ed.2d 371, holding that paid union organizers are nevertheless employees under the Act. The Court explicitly contemplated that such organizers would engage in activities that might "hurt the company through unlawful acts," but it found that they were no less employees than "unpaid zealot[s]" or "dissatisfied worker[s]" engaged in such behavior. Id. at 96, 116 S.Ct. 450. See also Tualatin Elec. v. N.L.R.B., 253 F.3d 714, 717 (D.C.Cir.2001) (upholding NLRB order awarding backpay to union salts unlawfully fired by a nonunion contractor because of organizing activity). 32 To be sure, as we have recently noted in Casino Ready Mix, Inc. v. N.L.R.B., 321 F.3d 1190 (D.C.Cir. 2003), the Board recognizes that employed union organizers might engage in conduct that raises a disabling conflict with their employer and is therefore unprotected. Whether the conduct at issue in this case was unprotected, as we have noted, caused a sharp division amongst the Board members. But it is unnecessary for us to resolve the issue because we think the Board reasonably determined (all four members apparently agreed) that an employer who wishes to assert that its otherwise discriminatory conduct is justified by the employee's unprotected activity must show that the employee's unprotected conduct caused the employer's action. The Board likened a disabling conflict defense to a Wright Line defense whereby an employer must demonstrate initially in a mixed motive case, that it relied at least in part on considerations unrelated to protected activity in imposing discipline on an employee. See Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083, enf'd 662 F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Since petitioner never asserted that it was aware of Hedges' and Smith's "salt" status (or any allegedly disabling conflicts) at the time it engaged in discriminatory conduct this defense was unavailable. 33 During the unfair labor practice hearing, however, petitioner, as we have noted, did hear testimony which showed that Hedges and Smith were salts — although we are not told how they interacted with other salts or what was their actual conduct. From that testimony, alone, petitioner alternatively argues that its backpay liability should be tolled from the time it discovered Hedges and Smith were salts. This is an untenable proposition. An employee does not lose his protected status merely because he is a salt. Rather, he may lose it if he engages in unprotected activity that emanates from disabling conflicts arising in connection with salting. See Casino Ready Mix, 321 F.3d at 1202. Maybe this is what petitioner meant to say in arguing that backpay should be tolled. We will assume as much in addressing this claim. 34 In support of this argument, petitioner relies on Chairman Hurtgen's dissent that argued petitioner should be at least entitled to litigate that issue in a subsequent backpay proceeding — a position that the majority rejected. Whatever the merits of the Chairman's position,6 we may not consider it — let alone the broader argument petitioner makes — because we are without jurisdiction to consider the issue. As the intervenors point out, this tolling question was not raised to the Board and "[n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e). 35 Petitioner contends that Chairman Hurtgen satisfied this requirement by raising the backpay tolling issue in his dissent. The company relies on § 10(e)'s passive voice as an indication that Congress did not require that the parties themselves actually raise the issue before the Board, as long as the members themselves engage in its discussion. CLP, however, offers no support for its view and probably for good reason — there is not any. The company had full opportunity to present the argument regarding backpay tolling in a motion for reconsideration, and the mere inconvenience of severing the issues or delaying a petition for review does not constitute an extraordinary circumstance. See Woelke & Romero Framing, Inc. v. N.L.R.B., 456 U.S. 645, 665-66, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982) (holding that an employer cannot challenge the Board's sua sponte conclusion that its conduct did not violate § 8(b)(4)(A) because a motion for rehearing or reconsideration could have been filed); see also Alwin Mfg. Co., Inc. v. N.L.R.B., 192 F.3d 133, 143 (D.C.Cir.1999). 36 * * * * 37 For the foregoing reasons, the petition for review is partially granted and partially denied, and the Board's cross-application for enforcement of its order is partially granted. 38 So ordered. Notes: 1 The ALJ's list of states, which takes account of CLP's offices at the time of the hearing (held on various days between September 11, 1995 and November 8, 1996), does not include Colorado. However the Board granted CLP's motion to add to the recordCONTRACTORS LABOR POOL, INC. (IBEW LOCAL UNION 68), 1999 WL 33453678, (July 21, 1999), which addresses similar unfair labor practice charges raised against the company's Denver, Colorado operations. In addition, the ALJ recognized that CLP has recruited new employees from neighboring states, such as Idaho, but the record does not indicate that it has offices there. See In re W.D.D.W. Commercial Systems & Investments, Inc., 335 N.L.R.B. No. 25, 2001 WL 1011927, at 91 (Aug. 27, 2001). 2 The consolidated charges in this case were brought by local unions in two of the states of operations: Orange County in Southern California, San Mateo and Contra Costa counties in Northern California, and the Seattle area in Washington 3 However, the ALJ found that CLP had first learned of Local 441's salting activities somewhat earlier because of an unfair labor practice charge against another company. In response, CLP distributed guideline literature to its employees on how to deal with such campaigns through lawful means, recognizing Local 441 specifically as a union intent on generating unfair labor practice litigation to hurt the company financially 4 The Board in dicta split on whether Local 441's behavior constituted a disabling conflictSee, e.g., Sunland Construction Co., 309 N.L.R.B. 1224 (1992). Members Liebman and Walsh wrote separately to state their belief that Local 441's objective of generating litigation costs to cause CLP economic hardship did not amount to a disabling conflict, as long as it could not be shown that the salts were performing their jobs incompetently or engaging in "violence, sabotage, or disparagement of the business." In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at 15. Member Truesdale believed that if an employer can show that a union's "overarching objective" is to drive the company out of business, this goal would be "separate from and indeed in conflict with...organizational objectives," and would entitle the employer to lawfully decline to hire, or retain its salts. Id. at 24 (Member Truesdale, concurring). Chairman Hurtgen agreed with Truesdale. 5 Of course, in most instances finding an employer's discriminatory intent against union workers in regard to hire or tenure of employment will demonstrate intent to encourage or discourage union membership. The facts inGreat Dane, paying accrued benefits to nonunion employees while extinguishing the same benefits for union employees, are a prime example. See Great Dane Trailers, 388 U.S. at 32, 87 S.Ct. 1792. 6 We do not believe the majority adequately responded to Chairman Hurtgen's dissent on the tolling issue. The three members argued that CLP already had the opportunity to prove that it relied on a disabling conflict in defending against the unfair labor practice charges in this proceeding, and precluded CLP a second opportunity to do so on remand or in subsequent compliance proceedingsSee In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at 9 n. 29. The difficulty with that response is it confuses the petitioner's failure to demonstrate that it had initially relied on the alleged disabling conflict with the entirely separate tolling question.	{ "pile_set_name": "FreeLaw" }
756 F.2d 1197 Robert B. PERRY and Linda T. Perry, Plaintiffs-Appellants,Cross-Appellees,v.STEWART TITLE CO., et al., Defendants-Appellees,Federal National Mortgage Association, Defendant-Appellee,Cross-Appellant.Hammond Mortgage Corp., Defendant-Appellee, Cross-Appellant. No. 83-2552. United States Court of Appeals,Fifth Circuit. April 8, 1985.Rehearing Denied May 28, 1985. Schleider & Francis, Paul S. Francis, Houston, Tex., for plaintiffs-appellants, cross-appellees. DeLange, Hudspeth, Pitman & Katz, Charles E. Fitch, Ben A. Baring, Houston, Tex., for Stewart Title Co., Stewart Guaranty & D. Walters. David C. DuBose, Houston, Tex., for Hammond Mortg. Corp. Locke, Purnell, Boren, Laney & Neely, Nathan L. Hecht, Harriet Miers, Robert M. Candee, Dallas, Tex., Morris, McCanne, Tinsley, Snowden, Ellis & Wilson, Paul R. Tinsley, Houston, Tex., for Federal Nat. Mortg. Assn. Crain, Caton, James & Womble, Thomas B. Greene, III, Houston, Tex., for Greiner, Greiner Const. Co. G. Alan Kramer, Dale C. Scott, Houston, Tex., for Friendswood Development Co. Appeals from the United States District Court for the Southern District of Texas. Before CLARK, Chief Judge, JOHNSON and WILLIAMS, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge: 1 The creative efforts of plaintiff Robert Perry, a lawyer, and the intransigence of ten defendants turned this relatively simple breach of contract/tort case involving the sale of a residence into a enormously expensive brouhaha for all of the parties. Robert and Linda Perry purchased a $70,000 home and learned that part of their driveway and garage encroached upon an underground utility easement. They sought to rescind their earnest money contract and to that end instituted suit and asserted seventy-six claims against ten defendants. The defendants eventually secured a release of liability for the encroachment at a cost of $100, but the Perrys continued their suit. The parties have collectively spent approximately $500,000 in legal fees prosecuting and defending this suit. 2 In this appeal, the Perrys challenge a variety of the district court's rulings at the trial. At the close of the evidence after the ten-day jury trial, the district court granted several motions for directed verdicts. The remaining issues were submitted to the jury, and the jury returned a substantial verdict for the Perrys. The district court, however, granted three of the defendants' motions for judgments non obstante veredicto, and those rulings defeated the jury's award to the Perrys. The Perrys challenge the district court's rulings on the defendants' motions for directed verdicts and for judgments n.o.v. and additionally argue that the district court erroneously denied three of their motions for judgments n.o.v. We find all of the district court's rulings correct except for rulings on two closely related and narrow issues. I. 3 In 1976, Friendswood Development Company (Friendswood), a real estate developer, deeded to Houston Lighting & Power Co. (HL & P) a five-foot wide "across, under, and over" utility easement for street lighting in a subdivision that Friendswood was developing. Friendswood recorded the HL & P easement on a comprehensive subdivision plat which was filed with the Harris County, Texas, recorder of deeds. In early 1977, Friendswood sold a parcel of land which the easement crossed to Greiner Construction Co. (Greiner), and in connection with that transaction provided Greiner with a copy of the subdivision plat. The general warranty deed Friendswood supplied Greiner clearly stated that Greiner accepted the property subject to all recorded easements. 4 Later in the same year, Greiner constructed a single family residence on the property. Prior to Greiner's pouring the concrete foundation for the home, Friendswood inspected the wooden foundation forms and approved their dimensions. The garage foundation and part of the driveway actually encroached approximately one foot onto the easement. After Greiner poured the foundation and driveway, HL & P installed underground an electrical conduit, with a diameter of two inches, at a depth of thirty inches and approximately two feet parallel to the foundation and driveway. 5 In May 1978, the Perrys inspected the home constructed by Greiner and decided to purchase it. The Perrys and Greiner entered into an earnest money contract to purchase the $70,000 home, and they paid earnest money in the amount of $1,000 to Stewart Title Co. (Stewart), the escrow agent. Hammond Mortgage Co. (Hammond) was to provide the financing. 6 The closing of the sales transaction was held on July 5, 1978, at Stewart's office. The Perrys, their real estate agent, and Debra Walters Rod (Rod), Stewart's escrow officer, were present at the closing. Rod supervised the closing of both the residence sale transaction between Greiner and the Perrys and the loan from Hammond to the Perrys. At the completion of the closing, Greiner provided the Perrys with a general warranty deed for the property. 7 The Perrys had no contractual agreement with Greiner, Hammond, Stewart, or any other party to be furnished with a copy of any land survey prior to the closing. For its own protection, however, Hammond had informed Stewart that it would require Stewart to obtain and furnish to it a copy of a survey before Hammond would provide financing for the transaction. A copy of the survey was not available at the closing, although all of the parties went forward with the closing. At trial, Robert Perry testified that he asked Rod at the closing whether a survey had been conducted and, if so, whether it revealed any problems. According to Perry, Rod replied that a survey had been conducted, that it revealed no problems, and that a copy of the survey would be available shortly. Rod did not dispute this testimony at trial. 8 On July 6, 1978, the day after the closing, the survey was delivered to Stewart, and it revealed that the Perrys' garage and driveway encroached approximately one foot onto HL & P's easement. Stewart, through its title insurance issuing agent, Stewart Title Guaranty Co. (STG), issued an owner's title policy dated July 6, 1978, to the Perrys which excepted from coverage the one-foot encroachment. The Perrys received this policy on July 12, 1978, and they immediately objected to the easement exception. In response to the objection, five days later Stewart issued a new policy which did not contain any exclusions from coverage as a result of the encroachment. Pursuant to the coverage afforded under the new title policy, the Perrys then demanded Stewart or STG to take steps necessary to cure the encroachment. 9 In mid-July 1978, Stewart wrote to HL & P and sought to arrange a waiver of the easement. On August 16, 1978, Stewart delivered to the Perrys for their approval a "Consent to Encroachment" that Stewart had received from HL & P regarding the encroachment. HL & P routinely provided consents to encroachments to remedy residential encroachments, such as the Perrys', on its easements. The consent stated that HL & P would not enforce its easement rights against the Perrys unless absolutely necessary. The day after the Perrys received the consent to encroachment they informed Stewart that the consent was an unacceptable method of curing the encroachment. Thereafter, STG sought to obtain from HL & P a full release of any claim held by HL & P for the one-foot encroachment. After discussing the matter with HL & P representatives, the claims counsel of STG by a letter dated August 24, 1978, informed the Perrys that HL & P appeared amenable to executing a full release but that it would take about six weeks to obtain the release. 10 In the meantime, on August 15, 1978, the Federal National Mortgage Association ( FNMA ) had purchased the Perrys loan from Hammond, although Hammond continued to service the loan for FNMA. On or about August 25, after the Perrys received STG's letter of August 24, the Perrys gave notice to all of the parties, except FNMA, that they intended to rescind the earnest money contract if no release was obtained from HL & P by October 9, 1978. No release was obtained by October 9, and the Perrys notified STG that they rescinded the transaction which had closed on July 5, 1978. On October 21, 1978, the Perrys voluntarily vacated the residence. The Perrys made no additional mortgage payments after that date, demanded that Greiner, Hammond, and Stewart refund their purchase money and payments to that date, and canceled their homeowner's insurance policy on the property. 11 On December 1, 1978, the Perrys filed suit in state court against Friendswood, Greiner, Hammond, Stewart, STG, Rod, and three other defendants. In that suit, the Perrys asserted nearly seventy claims against these nine defendants for the following: breach of contract, breach of warranty, statutory and common law fraud, negligence, deceptive trade practices, usury, loan disclosure violations, violations of state and federal truth in lending and debt collection acts, and violations of related federal and state acts. On December 12, 1978, two weeks after the Perrys filed their suit, HL & P executed a complete release of all rights to that portion of the easement upon which the Perrys' garage and driveway encroached. The cost of securing this release was $100, and Stewart paid the fee. 12 In mid-1980, FNMA threatened to foreclose on the subject property, and on July 28, 1980, the Perrys brought FNMA into the state suit as a party-defendant. The Perrys asserted that FNMA was liable under an agency theory for the allegedly wrongful acts of Hammond. FNMA removed the case to the United States District Court for the Southern District of Texas. 13 The case was tried by a jury. At trial, the Perrys insisted that the encroachment of their garage and driveway onto HL & P's easement enabled HL & P to compel the Perrys to destroy their garage and remove their driveway. They also claimed that the consent to encroachment executed by HL & P gave HL & P the right to tear down the Perrys' garage at the Perrys' expense if the need arose. The HL & P manager of the department responsible for preparing and approving consents to encroachments and full releases of HL & P's easement rights testified that encroachments onto HL & P's easements were common but minor problems and that in his 31 years of employment with HL & P he had never known of any case where HL & P demolished or forced the owner to demolish a structure because it encroached upon an HL & P easement. The witness also testified that he had informed Mr. Perry that a full release was imminent but that it would take longer than expected. Robert Perry conceded at trial that HL & P representatives told him that HL & P had never destroyed a structure because it encroached on one of HL & P's easements. Other undisputed testimony at trial revealed that the encroachment of the Perrys' garage onto the HL & P easement affected neither the marketability nor the value of the property. Stated simply, there was more than substantial evidence showing that the encroachment was de minimis. 14 At the close of the evidence, all of the defendants moved for directed verdicts on all of the claims asserted against each of them. The Perrys moved for a directed verdict only with respect to Hammond's and FNMA's counterclaims for attorney's fees. The district court granted defendants FNMA's, STG's, Paul Forester Properties', Wyatt Construction Co.'s, and Friendswood Development Co.'s motions for directed verdicts, finding a complete absence of evidence that properly could support a verdict as to any of these defendants. The district court granted parts of Hammond's and Greiner's motions for directed verdicts but submitted the remaining claims to the jury. All of the claims concerning the liability of Stewart and Rod were submitted to the jury. 15 In response to the special interrogatories, the jury found: 16 (1) Greiner was negligent in constructing the Perrys' house on an easement, and this negligence damaged the Perrys; 17 (2) Greiner's negligence was the result of bona fide error; 18 (3) the statements made by Rod and Stewart about the missing land survey were negligently made, and this negligence damaged the Perrys; 19 (4) the statements made by Rod and Stewart regarding the land survey were not fraudulent; 20 (5) Stewart's statements and actions concerning the land survey were false, misleading, or deceptive, and this conduct damaged the Perrys; 21 (6) the Perrys allowed Greiner and Stewart a reasonable time to cure the encroachment problem before initiating suit; 22 (7) Hammond's failure to include the address of the house and to state all prepayment charges on the loan disclosure statement was the result of a bona fide error. 23 The jury awarded damages to the Perrys in the following amounts: $16,780.35 for Greiner's negligent construction; $1,000.00 for Greiner's failure to convey clear title; $17,780.35 for Rod's and/or Stewart's negligent statements at the closing; $30,000.00 for Stewart's false, misleading, or deceptive acts; and $45,000.00 for attorney's fees. 24 Stewart, Rod, and Greiner each moved for judgments n.o.v. on each of the claims decided adversely to them. The Perrys moved for judgments n.o.v. on the "bona fide" findings by the jury. On August 10, 1983, the district court granted Stewart's, Rod's, and Greiner's motions, finding that the Perrys were not damaged as a result of these defendants' actions. Specifically, the district court found that (1) the Perrys' damages were neither foreseeable nor causally related to Stewart's, Rod's, or Greiner's actions; (2) even if the damages were foreseeable and causally related, the Perrys were not entitled to recover any money, since they had failed to present competent evidence concerning the proper measure of damages; and (3) alternatively, the plaintiffs failed to mitigate their damages. The district court held that the proper measure of damages in tort for injury to real property and in contract for breach of warranty is either the difference in the property's value with or without the defect or the cost to cure the defect. The court concluded that the Perrys presented no evidence concerning the property's diminution in value and that the defendants had paid all of the costs incident to obtaining the full release from HL & P. The district court also denied the Perrys' motions for judgments n.o.v. on the bona fide error findings. 25 Consistent with their seeming attempt in the district court to overwhelm with the sheer number of their claims, the Perrys in this appeal raise numerous challenges to the district court's rulings. II. 26 A. The Perrys' Right to Rescind the Contract 27 The critical issue in this appeal is whether the district court correctly granted Greiner's, Stewart's, and Rod's motions for judgments n.o.v., overturning the jury's findings of liability and damages. After examining the jury's responses to the special interrogatories, the district court concluded in effect that the damages the jury found the Perrys had sustained grew out of the attempt to rescind the contract. The district court's decision does not accept the assertion that there was a valid rescission. The court further concluded that the Perrys were entitled to sue for damages for either breach of warranty or negligence, but that they failed to offer any evidence concerning the proper measure of damages for either cause of action. We agree with these findings and conclusions of the district court. 28 Throughout this proceeding the Perrys based their right to rescind on a provision of the earnest money contract between themselves and Greiner. They assert that this provision authorized them to assert any objection to the title insurance policy upon receipt of that policy and to demand that Greiner cure any objections they raised. The general warranty deed the Perrys received and accepted at the closing contained no similar provision. 29 In Texas, as in most other jurisdictions, in the absence of fraud, accident, or mutual mistake, the rights and duties created by a land sales contract are merged into the deed when the seller delivers and the buyer accepts the deed. See Commercial Bank, Unincorporated v. Satterwhite, 413 S.W.2d 905, 909 (Tex.1967); Barker v. Coastal Builders, Inc., 153 Tex. 540, 271 S.W.2d 798, 803 (1954); Tuberville v. Upper Valley Farms, Inc., 616 S.W.2d 676, 678 (Tex.Civ.App.--Corpus Christi 1981, no writ); Duke v. Duke, 605 S.W.2d 408, 410 (Tex.Civ.App.--El Paso 1980, no writ); Carter v. Barclay, 476 S.W.2d 909, 914 (Tex.Civ.App.--Amarillo 1972, no writ); Baker v. Baker, 207 S.W.2d 244, 250 (Tex.Civ.App.--San Antonio 1947, writ ref'd n.r.e.); see also 6A R. Powell & P. Rohan, Powell on Real Property p 893, at 81-112 (1984 ed.); 6A Corbin, Corbin on Contracts Sec. 1319, at 310 (1962). In this case, the Perrys assert that the merger doctrine is inoperative for two separate reasons: (1) Rod knew that the garage and driveway encroached upon the existing utility easement, but she fraudulently induced the Perrys to close on the property and to accept the deed, and (2) Rod and the Perrys had the mistaken belief that the property was free from encroachments. 30 The Perrys properly raised the fraud argument to the jury, but the jury rejected the claim. In response to the special interrogatories, the jury found that Rod's statements at the closing were "negligently made" but not "fraudulent"; they were "false, misleading, or deceptive acts." (emphasis added). As an appellate court, our duty is to reconcile the jury's responses to the special interrogatories as consistent, if that is possible. Crossland v. Canteen Corp., 711 F.2d 714, 725 (5th Cir.1983). We view the jury's responses in this case as consistent--the jury found that Rod's statements were "false" (that is--untrue), but were not fraudulent. The Perrys therefore failed to prove fraud, and the merger doctrine cannot be avoided on that ground. 31 The Perrys remaining ground fails for different reasons. To vitiate the merger doctrine on the basis of mutual mistake, the party seeking to avoid the doctrine must show that both parties had the same misunderstanding about the same material fact. Tuberville v. Upper Valley Farms, supra, 616 S.W.2d at 678; see also A.L.G. Enterprises, Inc. v. Huffman, 660 S.W.2d 603, 606 (Tex.Civ.App.--Corpus Christi 1983), aff'd in relevant part, 672 S.W.2d 230 (Tex.1984). A mutual mistake is material if it involves the substance or subject matter of the contract and is not related merely to a collateral matter. Horner v. Bourland, 724 F.2d 1142, 1145 (5th Cir.1984); Durham v. Uvalde Rock Asphalt Co., 599 S.W.2d 866, 870 (Tex.Civ.App.--San Antonio 1980, no writ); Brown McKee, Inc. v. Western Beef, Inc., 538 S.W.2d 840, 845 (Tex.Civ.App.--Amarillo 1976, writ ref'd n.r.e.). 32 In this case, the Perrys never asked the court to submit a special interrogatory permitting the jury to determine whether Rod's and the Perrys' understanding of the land survey generally, and the lack of any encroachment specifically, constituted a mutual mistake of a material fact. In any event, we find that the record could not support such a conclusion, since the alleged mutual misunderstanding did not affect a material aspect of the contract. 33 The overwhelming evidence adduced at trial revealed: (1) that encroachments upon utility easements, such as the Perrys', were common problems faced by landowners and HL & P; (2) that HL & P routinely granted consents or complete releases in such cases; (3) that within one month after the Perrys asserted their objection, Stewart presented them with HL & P's consent to encroachment; (4) that the Perrys were assured repeatedly that the problem would be resolved; (5) that HL & P had never destroyed structures because those structures encroached onto one of its easements; (6) that the electrical conduit in the HL & P easement adjacent to the Perrys' property was two feet from the Perrys' foundation, and there was no likelihood that the Perrys' property ever would be disturbed as a result of the encroachment onto this easement; (7) that the encroachment affected neither the marketability nor the value of the Perrys' home; and (8) that Stewart, at a cost of only $100, eventually secured from HL & P a complete waiver of HL & P's rights to that portion of the easement on which the Perrys' garage and driveway encroached. These facts convince us that alleged misunderstanding concerning the land survey simply did not relate to a material aspect of the bargain and, at best, concerned merely a collateral matter. As such, there could be no rescission based on either the fraud or the mutual mistake theories. 34 Since the land sales contract merged into the deed, the Perrys lacked the right to rescind. Instead, they were entitled to sue only for damages for Greiner's breach of warranty or negligence in failing to convey clear title. Bristow v. City Investment Co., 110 S.W.2d 1222, 1224 (Tex.Civ.App.--Galveston 1937, writ dis'd); Luckenbach v. Thomas, 166 S.W. 99, 103 (Tex.Civ.App.--San Antonio 1914, no writ). The proper measure of damages in such a case is either the difference in the property's value with and without the defect, Moren v. Pruske, 570 S.W.2d 442, 444 (Tex.Civ.App.--San Antonio 1978, writ ref'd n.r.e.), or the cost to remedy the defect, Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 164 (Tex.1982). 35 At trial, the Perrys sought to recover for the expenses incident to their attempted rescission--their house hunting expenses, the cost of moving from their house, the cost of renting an apartment after they moved, the loss of favorable financing and depreciation on the house, closing costs, and house payments made to Hammond. Since the Perrys lacked the right to rescind, these damages were not foreseeable, and the district court correctly granted Greiner's, Stewart's, and Rod's motions for judgments n.o.v. And because the Perrys failed to introduce evidence concerning either the diminution in the house's value or the cost of obtaining a release from HL & P, the district court also correctly concluded that the Perrys could not recover for Greiner's breach of warranty or negligence. B. Usury 36 The Perrys next claim that Hammond as the initiator of the promissory note and FNMA as the assignee of the note violated Texas usury laws since the interest on the "true" principal was greater than that permitted in Texas. The interest rate set out on the face of the promissory note was 9.629% on a principal amount of $62,300. At the time the note was executed, the maximum interest rate allowable in Texas was 10%. See Tex.Rev.Civ.Stat.Ann. art. 5069-1.02 (Vernon 1971). The note also contained a "savings clause" which provided that any charge which caused or was interpreted to cause the interest to exceed the maximum lawful rate was to be reduced to the extent necessary to eliminate the usurious violation. 37 The Perrys make three assertions to support their claim that the interest rate was usurious: (1) prepayments, or so-called front-end charges, totaling $1436.47, collected by Hammond, should be characterized as interest and deducted from the face amount of the note to determine "true" principal, (2) Hammond collected excessive escrow charges from the Perrys in the amount of $398.07, which also should be deducted to determine "true" principal, and (3) late charges should be characterized as interest and added to the total amount of interest the Perrys were liable to pay. None of these challenges have merit. 38 Texas courts have held repeatedly that front-end charges paid to the lender for initiating a loan or processing the requisite papers should be deducted from the face amount of the note to determine whether a loan is usurious. First State Bank of Bedford v. Miller, 563 S.W.2d 572, 575 (Tex.1978); Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 1048 (1937). But Tex.Rev.Civ.Stat.Ann. art. 5069-1.07(a) (Vernon Supp.1985), also instructs that a loan secured by an interest in real property shall not be deemed usurious if the interest, when spread over the entire term of the loan, is within the lawful rate. See also Tanner Development Co. v. Ferguson, 561 S.W.2d 777, 781 (Tex.1977). In this case, even if $1436.47 is deducted from the stated principal amount of $62,300, the resulting interest on $60,863.53 over the 30 year term of the loan is not usurious. Hammond would have been entitled to charge the Perrys an additional $2,110.87 in interest without violating the Texas usury laws.1 39 We also reject the Perrys' claim that fees collected from them and placed in escrow for the payment of taxes and insurance premiums should be characterized as interest and deducted from the face amount of the note to arrive at "true" principal. Bona fide fees paid to parties other than the lender neither are characterized as interest nor are deductible from the principal amount. See Imperial Corporation of America v. Frenchman's Creek Corp., 453 F.2d 1338, 1343 (5th Cir.1972); Tanner Development Co. v. Ferguson, supra, 561 S.W.2d at 787; Greever v. Persky, 140 Tex. 64, 165 S.W.2d 709, 711 (1942). The deed of trust between Hammond and the Perrys specifically provided that escrow funds collected by Hammond at the closing would be paid into an insured escrow account and would be used exclusively to pay for taxes and insurance premiums. Hammond had no connection with the escrow account, and escrow funds were paid directly to the taxing authorities and the insurance company. Any overpayment into the escrow account by the Perrys merely reduced their tax and insurance liabilities in future months. Hammond received no benefit from the alleged overpayments, and the funds therefore were not properly deductible from the face amount of the loan for usury computation purposes. 40 Finally, we reject the claim that the late fees in the amount of 4% of the delinquent monthly installment should be characterized as interest for the purpose of determining the total interest for which the Perrys were liable. Since late charges of this nature do not involve the "use or forbearance or detention of money", see Tex.Rev.Civ.Stat.Ann. art. 5069-1.01 (Vernon 1971), and instead are merely bona fide fees paid to third parties for servicing the late payments, they are not properly characterized as "interest". See Rimco Enterprises, Inc. v. Texas Electric Service Co., 599 S.W.2d 362, 366 (Tex.Civ.App.--Fort Worth 1980, writ ref'd n.r.e.). 41 C. Federal Fair Debt Collection Practices Act and Texas Debt Collection Act Claims 42 The Perrys claim that the trial court erred in granting Hammond's and FNMA's motions for directed verdicts on their claims under the Federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Sec. 1692 (1982), and the Texas Debt Collection Act (TDCA), Tex.Rev.Civ.Stat.Ann. arts. 5069-11.01 to 5069-11.11 (Vernon Supp.1985). 43 The FDCPA makes it unlawful for debt collectors to use abusive tactics while collecting debts for others. The FDCPA defines a debt collector as "any person ... who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another." 15 U.S.C. Sec. 1692a(6). The term "debt collector" does not include: 44 [A]ny person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity ... (ii) concerns a debt which was originated by such person [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. 45 15 U.S.C. Sec. 1692a(6)(G). The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned. See S.Rep. No. 95-382, 95th Cong., 1st Sess. 3, reprinted in 1977 U.S.Code Cong. & Ad.News 1695, 1698. See also Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D.Miss.1978). In this case, the FDCPA is inapplicable, since neither Hammond nor FNMA is a debt collector. Hammond sold the Perry loan to FNMA approximately 1 1/2 months after the closing and approximately 2 months before the Perrys were in default. After Hammond sold the loan, it continued to service the loan for FNMA. Thus, FNMA was a bona fide assignee of a debt, and Hammond was a bona fide mortgage servicing company. The district court correctly granted Hammond's and FNMA's motions for directed verdicts on this claim. 46 The Perrys also argue that the district court improperly granted Hammond's and FNMA's motions for directed verdicts for the alleged violations of the TDCA. As an initial matter, there is no dispute that Hammond and FNMA fall within the broader definition of a debt collector under the TDCA. See Tex.Rev.Civ.Stat.Ann. art. 5069-11.01(c) (" 'Debt collector' means any person engaging directly or indirectly in debt collection"). Article 5069-11.03 makes it unlawful for an unidentified debt collector using a telephone to call the debtor "with the willful intent to annoy or harass or threaten any person at the called number." At trial, Mr. Perry testified that on or about November 28, 1978, he received a phone call from an unidentified caller who in an abusive manner demanded payment of the alleged indebtedness the Perrys owed Hammond. 47 Hammond answers that no evidence was introduced at trial which established that Hammond actually placed this call, and therefore the directed verdict was properly granted. Alternatively, Hammond claims that even if one of its agents or employees placed the call, there was no evidence that the caller possessed the willful intent "to annoy or harass or threaten" the Perrys or that the Perrys sustained any injury as a result of this phone call. 48 Although there may have been no direct evidence establishing Hammond's involvement in the offensive phone call, Mr. Perry's testimony was circumstantial and raised a question of fact for the jury. The necessary credibility choice was one uniquely reserved for the jury. Taken to its logical conclusion, Hammond's argument would defeat the clear purpose of the TDCA, since an unidentified debt collector could phone the debtor, communicate to the debtor "pay up, or else!" threats, and insist at trial that the TDCA is inapplicable as a matter of law. Hammond's claim that the caller acted without the willful intent "to annoy or harass or threaten" also is a jury question, given the nature and timing of the alleged communication in question. Finally, there is sufficient record evidence from which a jury could have concluded that the Perrys suffered damages from this phone call. See Ledisco Financial Services, Inc. v. Viracola, 533 S.W.2d 951, 957 (Tex.Civ.App.--Texarkana 1976, no writ) (consumer may recover damages for mental anguish under the TDCA). The district court improperly granted the motions of Hammond and FNMA for directed verdicts on the TDCA claim. 49 D. Breach of Warranty Claims Against Friendswood 50 The Perrys assert that the district court improperly granted Friendswood's motion for a directed verdict on their breach of warranty claims against Friendswood. The Perrys argue that Friendswood breached two warranties: a warranty of title and an express warranty. Friendswood was the original developer of the property upon which the Perrys' home was constructed. In 1977, Friendswood conveyed the subject lot to Greiner, and the deed was placed in escrow with Stewart until Greiner paid the outstanding balance of the loan for the lot. Greiner poured the concrete slab for the home after it purchased the lot from Friendswood but before it paid the balance of the note to Stewart. 51 In their warranty of title claim, the Perrys do not argue that Friendswood breached any warranty by conveying the easement to HL & P in the first instance. Indeed, no such attack could be made, since Friendswood (1) diligently recorded the easement on a comprehensive subdivision plat, (2) filed that plat with the recorder of deeds, (3) provided copies of that plat to Greiner, and (4) indicated in its deed to Greiner that Greiner accepted the property subject to all recorded easements. Rather, the Perrys claim that Friendswood breached a warranty of title because Friendswood allegedly was the owner of the property at the time Greiner created the encroachment by pouring the foundation over part of HL & P's easement. The Perrys' claim lacks serious merit. 52 Any claim for a breach of warranty of title arises from Friendswood's conveyance of the property to Greiner. As Greiner's assignees, the Perrys' rights are derivative of whatever rights Greiner possessed at the time Greiner acquired the property. Houchins v. Scheltz, 590 S.W.2d 745, 751 (Tex.Civ.App.--Houston, no writ). When the grantor and grantee execute a deed and place the deed in escrow, equitable title immediately passes to the grantee. Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 1169 (1938); Hudgins v. Krawetz, 558 S.W.2d 131, 134, (Tex.Civ.App.--San Antonio 1977, no writ). Legal title passes to the grantee when the loan is paid and the deed is taken out of escrow. Cowden, 114 S.W.2d at 1169. The legal title a grantee receives relates back to the date the grantee received equitable title. Id. 53 At the time Friendswood conveyed the property to Greiner, no encroachment existed. It arose only after Greiner poured the concrete slab. Shortly thereafter, when the loan was paid and the deed taken out of escrow, legal title passed to Greiner. Greiner had legal title to the property, as a result of the relation-back doctrine, before the encroachment was created. An action for a breach of warranty of title therefore does not lie against Friendswood, since Friendswood was not the legal title holder at the time Greiner constructed the encroachment. This result is consistent with the common-sense recognition that the Perrys, who stand in the shoes of Greiner, the original grantee, should not be allowed to enforce against Friendswood, the grantor, a covenant against encumbrances where the encumbrance was created by the original grantee. 54 In their remaining warranty claim, the Perrys argue that Friendswood's advertising literature warranted that Friendswood would conduct a "construction inspection ... prior to [the] pouring of the slab and foundation ... for the purpose of verifying adherence to the established minimum construction standards." The Perrys argue that this statement by Friendswood warranted that Friendswood would physically inspect the property to ensure that, among other things, the slab would be poured in the correct location. The uncontradicted evidence at trial demonstrated conclusively that this statement in the advertising literature merely meant that Friendswood would inspect the premises to ensure that a builder was complying with certain subdivision requirements, such as minimum set-back restrictions, minimum square footage restrictions, and home design restrictions. The quoted statement warranted to potential lot purchasers only that Friendswood monitored the aesthetic consistency and integrity of the homes in the subdivision and in no way warranted to purchasers that Friendswood guaranteed that a builder did not encroach upon existing and properly recorded underground utility easements on his, the builder's, own property. The district court correctly granted Friendswood's motion for a directed verdict on this claim. E. Truth In Lending Act Violations 55 The Perrys also claim error in the district court's directing a verdict against them for Hammond's alleged violations of the Federal Truth In Lending Act (TILA), 15 U.S.C. Secs. 1601-1667 (1982), and Regulation Z of the Federal Reserve Board, 12 C.F.R. Secs. 226.4, 226.6 & 226.8 (1984). The Perrys complain of six errors or omissions in the loan disclosure statement prepared by Hammond. We have carefully examined each of the Perrys' TILA claims and have determined that none has merit. For example, the Perrys claim that Hammond violated section 226.6(d) of Regulation Z by failing to disclose on the statement that FNMA was a creditor. At the time Hammond made the loan and completed the statement, however, FNMA was not a creditor; Hammond had no obligation to sell the loan to FNMA; FNMA had no obligation to purchase the loan from Hammond; and Hammond, in fact, did not know whether FNMA would purchase the loan from it. FNMA, therefore, was not a creditor within the meaning of Regulation Z. 12 C.F.R. Secs. 226.2(17) & 226.6(d). In another claimed violation of the TILA, the Perrys allege that Hammond collected $509.33 in prepaid interest charges but disclosed on the statement that only $476.47 was charged. The record reveals that Stewart rather than Hammond collected the prepaid interest and that Stewart refunded the Perrys the $32.86 it overcharged. We have considered the Perrys' remaining four TILA claims. They similarly fall short of having merit. 56 F. The Perry's Motions for Judgments N.O.V. 57 In their final claim, the Perrys challenge the district court's denial of their motions for judgments n.o.v. on claims against Greiner and Stewart for alleged violations of the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. Secs. 17.41-17.63 (Vernon Supp.1985), and against Hammond for alleged violations of the Truth in Lending Act. The Perrys, however, never moved for directed verdicts on these claims. A motion for a directed verdict is prerequisite to a motion for a judgment n.o.v. See Fed.R.Civ.P. 50(b); Perricone v. Kansas City Southern Ry., 704 F.2d 1376, 1380 (5th Cir.1983); see also 5A J. Moore, Moore's Federal Practice p 50.08, at 50-85 (2d ed. 1984); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2537, at 596 (1971); cf. Merwine v. Board of Trustees for State Institutions of Higher Learning, 754 F.2d 631, 634 (5th Cir.1985) (defendant's motion for a directed verdict at the close of the plaintiff's case satisfies requirements of Rule 50(b)). The district court therefore correctly denied the Perrys' motions for judgments n.o.v. G. Attorney's Fees for FNMA and Hammond 58 The remaining issue in this appeal concerns FNMA's and Hammond's cross appeals challenging the district court's denial of their motions for awards of attorney's fees. FNMA and Hammond sought attorney's fees under section 813(a)(3) of the Fair Debt Collection Practices Act, 15 U.S.C. Sec. 1692k(a)(3), and pursuant to a provision in the deed of trust. 59 To recover attorney's fees under the FDCPA, the prevailing defendant must show affirmatively that the plaintiff brought the FDCPA claim in bad faith and for the purpose of harassment. 15 U.S.C. Sec. 1692k(a)(3). Although we do not approve of the Perrys' "everything but the kitchen sink" approach to litigation, we find that the district court did not abuse its discretion in holding that the Perrys were not in bad faith, so an award of attorney's fees against them was not justified. 60 With respect to FNMA's and Hammond's contractual basis for an award of attorney's fees, we conclude that while the district court's discretion was somewhat limited, since the deed of trust authorized an award of attorney's fees, the court exercised that discretion properly. In Cable Marine, Inc. v. M/V Trust Me II, 632 F.2d 1344 (5th Cir.1980), we noted: 61 Where attorney's fees are provided by contract, a trial court does not possess the same degree of equitable discretion to deny such fees that it has when applying a statute allowing for a discretionary award.... Nevertheless, a court in its sound discretion may decline to award attorney's fees authorized by a contractual provision when it believes that such an award would be inequitable and unreasonable. 62 Id. at 1345. See also General Electric Corp. v. Oil Screw Triton, VI, 712 F.2d 991, 995 (5th Cir.1983); Gregg v. U.S. Industries, Inc., 715 F.2d 1522, 1542 (11th Cir.1983) (following Cable Marine ), cert. denied, --- U.S. ----, 104 S.Ct. 2173, 80 L.Ed.2d 556 (1984). The Perrys alleged substantial claims against FNMA and Hammond for violations of the Federal Fair Debt Collection Practices Act and the Texas Debt Collection Act. Although the Perrys did not prevail ultimately on the FDCPA claim, they raised sufficient questions of fact for the jury on the TDCA claim. Against this factual background, we cannot say that the district court abused its discretion in concluding that an award of attorney's fees in favor of FNMA and Hammond and against the Perrys would be inequitable and unreasonable. III. 63 In summary, we conclude that the district court properly granted all but two of the defendants' motions for directed verdicts and judgments n.o.v. and properly denied all the Perrys' motions for judgments n.o.v. The court incorrectly granted Hammond's and FNMA's motions for directed verdicts against the Perrys' claims under the Texas Debt Collection Act. We therefore reverse the district court for a trial on those claims. We affirm the judgment in all other respects. 64 AFFIRMED IN PART, REVERSED AND REMANDED IN PART. 1 The parties agree that if the prepaid charges alone are reduced from the face amount of the note to arrive at "true" principal, the following formulas should be used to determine both the amount of interest legally allowable and the amount of interest Hammond charged the Perrys A. Amount of interest allowable: $62,300.00 Face amount of note - 1,436.47 Prepaid charges ------------- $60,863.53 True principal $60,863.53 X .00877572 30 year monthly interest factor at 10% ----------- annual rate (See Am. Jur.2d Desk Book at 431 (1979)) $534.1212974 $534.1212974 X 360.8709677 Term of loan: 360 months, 27 days ------------- $192,748.87 Total amount of principal and interest payable for 30 years loan at 10% per annum $192,748.87 - 60,863.53 True principal ------------- $131,885.34 Total interest legally allowable B. Amount of interest charged under the contract: $ 529.55 Amount of the Perrys' monthly principal and interest payments X 360 Number of monthly payments ------------- 190,638.00 Total amount of principal and interest payable under the terms of the Hammond- Perry note $190,638.00 - 60,863.53 True principal ------------- $129,774.47 Total interest chargeable under the note C. Amount of additional interest Hammond could have legally charged the Perrys after deducting $1436.47 in prepaid charges from the face amount of the note: $131,885.34 Total interest legally allowable - 129,774.47 Total interest chargeable under the note ------------- $ 2,110.87 Additional interest Hammond could have legally charged the Perrys	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-2725 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Jay Phillip Flynn, also known as Nathan Johnson lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: May 31, 2016 Filed: July 28, 2016 [Unpublished] ____________ Before SMITH, BEAM, and KELLY, Circuit Judges. ____________ PER CURIAM. Jay Phillip Flynn pleaded guilty pursuant to a plea agreement to mail fraud, in violation of 18 U.S.C. § 1341. The district court1 sentenced Flynn to 52 months' 1 The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota. imprisonment—11 months above the top of the applicable Guidelines range. On appeal, Flynn argues that his sentence is substantively unreasonable. We affirm. I. Background Flynn and his two codefendants, through artifice, defrauded the elderly of coins and precious metals. Flynn defrauded 18 victims between the ages of 67 and 892 in a total amount of $344,828.02. In September 2014, Flynn was charged with one count of mail fraud, in violation of 18 U.S.C. § 1341. He pleaded guilty pursuant to a plea agreement on October 17, 2014.3 The plea agreement calculated Flynn's applicable Guidelines range to be 33 to 41 months' imprisonment based on a total offense level of 18 and a criminal history category of III. The total offense level included a base offense level of 7, a 12-level enhancement for a loss amount of $339,000, a 2-level enhancement for the involvement of more than 10 victims, and a 3-level reduction for acceptance of responsibility. The presentence investigation report (PSR) agreed with the parties' Guidelines calculation with one exception. The PSR determined that Flynn was responsible for $760,000 of fraud, resulting in a 14-level loss enhancement. The PSR calculated a total offense level of 20 and a Guidelines range of 41 to 51 months' imprisonment. In calculating the loss amount, the PSR included about $340,000 of fraud for which Flynn was primarily responsible and $420,000 of fraud for which one of his codefendants, Robert Earl Gundy, was primarily responsible. The government and Flynn objected to the PSR's loss enhancement to the extent that it included the fraud for which Gundy was primarily responsible. During sentencing, the government explained why it used the $340,000 loss amount instead of the $760,000 loss amount. 2 Two of the victims' ages—G.R. and R.S.—are unknown. 3 Prior to successfully entering his guilty plea on that date, Flynn had previously shown up for a change-of-plea hearing on October 9, 2014, with cocaine in his system. The district court detained Flynn pending trial or guilty plea and sentencing. -2- The district court sustained Flynn's objection to the amount of loss. In doing so, the court noted that "[b]ecause the government has joined with Mr. Flynn in objecting to the amount of loss, the government has obviously not presented evidence of any additional loss beyond that to which the parties agree." The court found a loss amount of $344,828.02. As a result, the court imposed a 12-level enhancement for the amount of loss instead of the PSR's recommended 14-level enhancement. Thereafter, the court granted the government's motion for an additional one-level reduction for acceptance of responsibility. The court calculated a total offense level of 18 and a criminal history category of III, resulting in a Guidelines range of 33 to 41 months' imprisonment. Both parties agreed with this Guidelines range. Flynn sought a 33-month sentence, and the government requested a 41-month sentence. The district court sentenced Flynn to 52 months' imprisonment and ordered him to pay restitution in the amount of $324,949.77 to the victims identified in the PSR. In announcing its sentence, the court stated that it had reviewed the PSR and letters from Flynn's relatives. The court also "dictate[d] the reasons for the sentence," explaining that it had "carefully considered all of the factors described in 18 U.S.C. Section 3553(a), including the need for the sentence to be sufficient, but not greater than necessary, to comply with the purposes set forth in Section 3553(a)(2)." "Having considered all of the Section 3553(a) factors—including the nature and circumstances of the offense and the history and characteristics of the defendant," the court found that the 52-month sentence is sufficient, but not greater than necessary, to reflect the seriousness of Mr. Flynn's offense and to provide just punishment for that offense; to deter Mr. Flynn from committing crimes in the future; to deter others from committing this or similar crimes in the future; to protect the public from Mr. Flynn; and to provide Mr. Flynn with needed care, treatment, and training. -3- The court additionally found that the 52-month sentence is necessary to avoid unfair disparities between Mr. Flynn's sentence and the sentences of those who were involved in the same scheme, to avoid unwarranted disparities between Mr. Flynn's sentence and the sentences of defendants with similar records who have been found guilty of similar conduct, and to provide restitution to the victims of Mr. Flynn's offense. The court recognized that the 52-month sentence was an upward variance but found such a variance "necessary to meet the sentencing objectives of Section 3553(a)." The court then offered three justifications for the 11-month variance from the top of the Guidelines range. First, "Flynn committed a very serious crime" that the court found to be "particularly brazen and cruel" given that Flynn "targeted the elderly." The court commented that being defrauded "would be stressful for anyone, but it is particularly devastating for the elderly"; therefore, the court found that "[a]n upward variance is necessary to reflect the seriousness of Mr. Flynn's offense and to provide just punishment for that offense." Second, the court found "an upward variance . . . necessary to deter Mr. Flynn from committing crimes in the future and to protect the public from him." The court cited Flynn's "lengthy criminal record," which "includes felony convictions for armed robbery, drug trafficking, and drug possession, as well as many misdemeanor convictions, including misdemeanor convictions for check forgery and domestic assault." The court found that the upward variance would deter Flynn "from continuing to commit crimes." The court noted that Flynn's past sentences had failed to deter him and also pointed to Flynn's history of probation violations, including Flynn's showing up to the first change-of-plea hearing with cocaine in his system. The court determined that "[a] long sentence will have a better chance of deterring Mr. Flynn—and, at a minimum, it will give the public additional protection from him." -4- Finally, the court found "[a]n upward variance . . . necessary to provide general deterrence." The court found Flynn's case "illustrative" of how "white-collar criminals are underpunished and thus underdeterred." According to the court, Flynn had "stole[n] almost $350,000 from the elderly—and . . . did so in a cold and calculating way over a period of several months—and yet the Sentencing Guidelines recommend[ed] a sentence as low as 33 months." In summary, the court found no "compelling reason to give Mr. Flynn a break." The court pointed out that "Flynn came from a good family and he had a comfortable upbringing." While the court acknowledged that Flynn's drug "addiction did play a role in his crime," it also noted that Flynn "has received inpatient treatment three times, to no apparent effect." The court also considered Flynn's children, stating that "neither Mr. Flynn nor his wife has custody of those children because of their drug abuse" and that "Mr. Flynn owes over $200,000 in back child support." The court found it "hard to accept the argument that Mr. Flynn should receive a short prison sentence so that he can be more involved in the lives of his children." II. Discussion On appeal, Flynn argues that his 52-month above-Guidelines sentence is substantively unreasonable because the district court failed to consider the issues of sentencing disparity and Flynn's personal circumstances at the time of the offense. Specifically, Flynn notes that one of his codefendants received a 41-month prison sentence, while another codefendant, although receiving a longer sentence, was sentenced within the Guidelines range. According to Flynn, the court failed to address what disparity would occur if the court imposed a Guidelines sentence. He argues that the fraud that his codefendants committed and their victims are similar to his own; therefore, he maintains that the court failed to account for sentencing disparity. Finally, he argues that the court minimized Flynn's admitted addiction to controlled substances by stating that previous treatment had no apparent effect on him. -5- We review the reasonableness of the district court's sentence for abuse of discretion, and a district court abuses its discretion only when it "(1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those factors commits a clear error of judgment." United States v. Bland, 638 F. App'x 548, 549 (8th Cir. 2016) (unpublished per curiam) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). Here, Flynn acknowledges that the district court considered the need to avoid unwarranted sentencing disparities but contends that the court erroneously assessed the disparity. The district court expressly found that the sentence was "necessary to avoid unfair disparities between Mr. Flynn's sentence and the sentences of those who were involved in the same scheme." Flynn argues that his sentence is too high compared to codefendant Robert Gundy's 41-month sentence. Flynn's argument fails. Gundy was sentenced after Flynn, "and the court at [Flynn's] sentencing could not have discussed sentences that were not yet imposed." See United States v. Fry, 792 F.3d 884, 891–92 (8th Cir. 2015) (citation omitted). As to his other codefendant, Tory Hughes, Flynn acknowledges that Hughes received a higher sentence—71 months—for executing a similar mail fraud scheme. The record reflects that the district court adequately considered this factor and that Flynn was not similarly situated to his codefendants. See United States v. Plaza, 471 F.3d 876, 880 (8th Cir. 2006) ("[When codefendants] are not similarly situated, . . . the district court does not need to sentence the[m] . . . to the same length of imprisonment to avoid an unwarranted sentencing disparity."). As the government points out, the district court based Flynn's sentence on Flynn's unique offender characteristics, including his criminal history. Flynn also concedes that the district court considered the nature and seriousness of the offense but objects to the district court's view of white collar crimes. The -6- district court stated, "An upward variance is also necessary to provide general deterrence. As a general matter, I believe that white-collar criminals are underpunished and thus underdeterred." The district court also noted that Flynn "stole almost $350,000 from the elderly—and . . . did so in a cold and calculating way over a period of several months—and yet the Sentencing Guidelines recommend[ed] a sentence as low as 33 months." According to Flynn, the Guidelines were based on careful study and empirical evidence; therefore, the court should have followed these Guidelines. But the Supreme Court's "post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the [Sentencing] Commission's views." Pepper v. United States, 562 U.S. 476, 501 (2011) (citation omitted). Here, the district court highlighted that Flynn targeted the elderly, which the court concluded made the Guidelines range particularly unsuitable for his offense. Finally, Flynn also admits that the district court addressed his drug abuse and the role that it played in the offense but argues that the court minimized Flynn's admitted addiction to controlled substances by stating that previous treatment had no apparent effect on him. But Flynn has not shown how the district court's factual conclusion was false; that is, that Flynn had previously successfully completed treatment. And, it was at Flynn's request that the court recommended him for the Residential Drug Abuse Program while in prison. The district court added that it was imposing a three-year term of supervised release, in part, because of Flynn's "severe addiction to drugs" and included in Flynn's supervised-release conditions that he get "treatment for his addictions." For the aforementioned reasons, we hold that the district court did not abuse its discretion in sentencing Flynn to 52 months' imprisonment. -7- III. Conclusion Accordingly, we affirm the judgment of the district court. ______________________________ -8-	{ "pile_set_name": "FreeLaw" }
Filed Washington State Court of Appeals Division Two January 3, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter of the No. 51780-9-II Personal Restraint of RODERICK LUTHER KING-PICKETT, Petitioner. UNPUBLISHED OPINION MELNICK, J. — Roderick King-Pickett seeks relief from personal restraint imposed following his 2016 convictions for robbery in the first degree and burglary in the first degree.1 First, he argues that the State failed to present sufficient evidence because as cross racial identifications, the witness identifications of him were unreliable. “The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In addition to being found in possession of items from the victims’ residence, King-Pickett was found by police within a mile of that residence with clothing consistent with that described by one of the victims and carrying a plastic bag 1 We issued the mandate of King-Pickett’s direct appeal on April 27, 2018, making his April 26, 2018 petition timely filed. RCW 10.73.090(3)(b). No. 51780-9-II consistent with that victim’s description. During an on-scene identification, the other victim said that he was 70 percent sure that King-Pickett intruded into his residence. At trial, that victim said he was 70 percent unsure whether King-Pickett intruded into his residence. But where, as here, the defendant is found in possession of property stolen from a residence, only slight corroborative evidence is required to suffice for a conviction for burglary. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982). Viewing the identification evidence in the light most favorable to the State, that evidence is sufficient to support King-Pickett’s convictions for robbery and burglary. Second, King-Pickett argues that the trial court erred in not instructing the jury that mere possession of stolen property is not sufficient to support a finding of guilt as to either robbery or burglary. We review the refusal to give such an instruction for an abuse of discretion. State v. Ehrhardt, 167 Wn. App. 934, 939, 276 P.3d 332 (2012). Given that the State did present evidence beyond mere possession of stolen property, King-Pickett does not show that the trial court abused its discretion in not giving the instruction. Third, King-Pickett argues that the prosecutor committed misconduct in closing argument by arguing that King-Pickett could be guilty as an accomplice when accomplice liability had not been alleged in the information. But the arguments he cites to, that “[i]t’s possible there was another guy in the house” and “[i]t’s possible that somehow the defendant got the property,” Resp. to Pet., App. G at 2, were made as possible explanations that King-Pickett could have given, not as an argument for accomplice liability. King-Pickett does not show prosecutorial misconduct.2 2 King-Pickett’s related argument that his trial counsel was ineffective in not objecting to the State’s argument fails because he does not show deficient performance. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 2 No. 51780-9-II Fourth, King-Pickett argues that because he was found in possession of a knife and a hammer, either of which could have been found to be a deadly weapon, the trial court erred in not giving a Petrich3 instruction that the jurors must unanimously agree whether they found that he was armed with a deadly weapon or that he displayed what appeared to be a deadly weapon. But where, as here, the State presented sufficient evidence to support a finding that either the knife or the hammer was a deadly weapon that King-Pickett was either armed with or had displayed during the robbery, the trial court need not instruct the jury that it needed to be unanimous as to which of the alternative means of committing robbery King-Pickett had committed. State v. Ortega- Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994). Fifth, King-Pickett argues that the trial court erred in instructing the jury in the to-convict instruction on the burglary in the first degree charge when it included as an element that in entering, remaining, or in immediate flight from the residence “the defendant was armed with a deadly weapon or assaulted a person.” Resp. to Pet., App. C at 23. He contends that without a Petrich instruction as to which of these alternative means was found by a unanimous verdict, the to-convict instruction is incorrect. The State concedes that the instruction was erroneous when it included the phrase “or assaulted a person” because assault was never alleged and no evidence of assault was presented. But it contends that because the jury unanimously found that King-Pickett was armed with a deadly weapon when he committed the burglary and because of the absence of evidence of an assault, the jury could not have unanimously found that King-Pickett assaulted a person when he committed the burglary. Thus, it contends that the error in the instruction was 3 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). 3 No. 51780-9-II harmless. State v. Nicholas, 55 Wn. App. 261, 273, 776 P.2d 1385 (1989). Given the lack of evidence or argument that King-Pickett assaulted a person while committing the burglary and the unanimous verdict that he was armed with a deadly weapon while committing the burglary, we agree that the error in the instruction was harmless.4 Sixth, King-Pickett argues that his trial counsel was ineffective in not asking for instructions on theft in the first degree, theft in the second degree, and robbery in the second degree as lesser-included crimes as to the robbery charge. But theft in the first degree and theft in the second degree were not lesser-included crimes as to King-Pickett’s robbery in the first degree charge. State v. Roche, 75 Wn. App. 500, 511, 878 P.2d 497 (1994). Thus, trial counsel did not perform deficiently in not requesting those lesser-included instructions. And because the jury found King-Pickett guilty as to the greater crime of robbery in the first degree, King-Pickett does not show resulting prejudice from the failure to request a lesser-included instruction on robbery in the second degree. State v. Grier, 171 Wn.2d 17, 43-44, 246 P.3d 1260 (2011). So King-Pickett fails to show that he received ineffective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). Finally, King-Pickett argues that his deadly weapon sentencing enhancements are invalid because the trial court did not give a deadly weapon special verdict definition and did not instruct the jury that he “or an accomplice” was armed with a deadly weapon when committing the crimes. But the trial court did give an instruction defining deadly weapon for purposes of entering a special 4 Because we find the error harmless, King-Pickett’s arguments that his trial counsel was ineffective for not objecting to the instruction and that his appellate counsel was ineffective for not raising the issue in his direct appeal fail because he does not show any resulting prejudice. McFarland, 127 Wn.2d at 335-36. 4 No. 51780-9-II verdict. And because there was no evidence presented of an accomplice to the crimes, the trial court was not required to include the phrase “or an accomplice” in the special verdict instruction and special verdict forms. King-Pickett’s sentencing enhancements are valid. King-Pickett fails to demonstrate unlawful restraint. Therefore, we deny his petition.5 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. MELNICK, J. We concur: WORSWICK, J. MAXA, C.J. 5 We also deny his request for appointment of counsel. 5	{ "pile_set_name": "FreeLaw" }
FILE COPY IN THE SUPREME COURT OF TEXAS -- -- -- -- NO. 19-0341 TODD DYER, PHRK § INTERVENTION, LLC, PHRK § Dallas County, INTERVENTION, INC., AND § SOUTHSIDE DEVICE, LLC § 5th District. v. § MEDOC HEALTH SERVICES, LLC § AND TOTAL RX CARE, LLC June 28, 2019 Petitioners' petition for review, filed herein in the above numbered and styled case, having been duly considered, is ordered, and hereby is, denied.  I, BLAKE A. HAWTHORNE, Clerk of the Supreme Court of Texas, do hereby certify that the above is a true and correct copy of the orders of the Supreme Court of Texas in the case numbered and styled as above, as the same appear of record in the minutes of said Court under the date shown. It is further ordered that petitioners, TODD DYER, PHRK INTERVENTION, LLC, PHRK INTERVENTION, INC., AND SOUTHSIDE DEVICE, LLC, pay all costs incurred on this petition. WITNESS my hand and seal of the Supreme Court of Texas, at the City of Austin, this the 6th day of August, 2019. Blake A. Hawthorne, Clerk By Monica Zamarripa, Deputy Clerk	{ "pile_set_name": "FreeLaw" }
958 S.W.2d 333 (1997) TENNESSEE MUNICIPAL LEAGUE, et al., Plaintiffs/Appellants, v. Brook THOMPSON, in his official capacity as the State Election Coordinator, et al., Defendants/Appellees. Supreme Court of Tennessee, at Nashville. December 10, 1997. 334 George E. Barrett, Phillip A. Purcell, Barrett, Johnson & Parsley, Nashville, for Appellants, Tennessee Municipal League. Leo Bearman, Jr., Allan J. Wade, David L. Bearman, Baker, Donelson, Bearman & Caldwell, Memphis, for Appellants, City of Memphis. John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Ann Louise Vix, Senior Counsel, Nashville, for Appellees, Brook Thompson, et al. Val Sanford, Gullett, Sanford, Robinson & Martin, PLLC, Nashville, Gordon B. Olswing, Law Offices Of Charles R. Perkins, Lee L. Piovarcy, Martin, Tate, Morrow & Marston, PC, Memphis, for Intervenor Appellees, David Sanders, David Lynn Ranson, James E. Blount, III, and James F. Leatherwood, III. Charlton R. DeVault, Jr., Kingsport, for Amicus Curiae, City of Elizabethton. Edward B. Johnson, Somerville, for Amicus Curiae, Town of Oakland. OPINION ANDERSON, Chief Justice. We granted this expedited appeal pursuant to Tenn. Code Ann. § 16-3-201(d) to determine a question of unusual public importance whether 1997 Tenn. Pub. Acts, ch. 98 ("the Act"), which dramatically changed requirements for municipal incorporation, violates the Tennessee Constitution. The Chancery Court held that the Act is constitutional. We conclude, however, that the Act violates Article II, § 17 of the Tennessee Constitution and is, therefore, void because the body of the Act is broader than its restrictive caption. Accordingly, we reverse. BACKGROUND During the 1997 legislative session, the General Assembly passed 1997 Tenn. Pub. Acts, ch. 98, which was signed into law by the Governor on April 16, 1997. The Act amended the municipal annexation provisions in Tenn. Code Ann. §§ 6-1-201, et seq. The caption of the Act provided as follows: An ACT to amend Tennessee Code Annotated, Title 6, Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and Title 6, Chapter 30, Part 1, relative to the distribution of situs-based tax collections after new municipal incorporations and the timing of elections to incorporate new municipalities. Sections 7 through 11 of the Act are of particular relevance to the issue of whether the body of the Act is broader than its caption. They provide as follows: Specifically, Section 7 of the Act lowered the population requirement for municipal incorporation of territory of Tenn. Code Ann. § 6-1-201(a)(1) from 1,500 persons to only 225 persons. Section 8 of the Act completely deleted Tenn. Code Ann. § 6-1-201(b)(1), which prohibited incorporation of a new municipality within three miles of an existing municipality or within five miles of an existing municipality with a population of 100,000 or more. 335 Section 9 of the Act replaced subsection (h) of § 6-1-201, and provided: Notwithstanding the requirements of §§ 6-1-202, 6-1-203, and 6-1-209, or any other provision of law to the contrary, the petition for incorporation may consist of a letter from a resident of the territory desiring to incorporate to the county election commission requesting that the question of incorporating the territory be placed on the ballot. The letter shall describe the exact boundaries of the proposed municipality and indicate the name of the proposed municipality. The letter shall be treated as a petition meeting all of the requirements of the law if such petition is filed with the county election commission before December 31, 1997. Thus, a letter from a single resident may be used in lieu of a petition to incorporate and is to be treated as a petition meeting all the requirements of the law if filed before December 31, 1997. No plan of municipal services or five-year budget or projected tax rate is required as a part of the petition. In contrast, §§ 6-1-202, 6-1-203, and 6-1-209 had required a petition for incorporation signed by thirty-three and one-third percent (33 1/3%) of the registered voters of the territory to be incorporated, a plan of municipal services, a five-year budget with identified potential revenue and expenses, and a projected tax rate. Section 10 of the Act added subsection (j) to Tenn. Code Ann. § 6-1-201 and provided that any territory that has conducted an election under this section before April 16, 1997, is deemed to have satisfied the requirements for incorporation. New subsection (j) also provided that any ordinance of annexation by another municipality for any territory within the corporate limits of such new municipality is void. Section 10 also added new subsection (k) to Tenn. Code Ann. § 6-1-201 and provides that, if a territory has proposed to be incorporated pursuant to Tenn. Code Ann. § 6-1-201 after January 1, 1996, that new municipality shall have priority over any annexation ordinance of an existing municipality which encroaches upon any territory of the new municipality. Section 11 of the Act provided that sections 7 and 8 of the Act remain in effect for one year from the effective date of the Act, and that at the expiration of that one year period, the statutory language in place immediately before the Act took effect will be revived and will again be in effect. On July 25, 1997, a suit was filed seeking a declaratory judgment that sections 7 through 11 of the Act are unconstitutional under various provisions of the Tennessee Constitution.[1] The plaintiffs are the Tennessee cities of Memphis, Clarksville, Harriman, Pulaski, Jackson, Lakesite and Collegedale, and the Tennessee Municipal League. The defendants are Brook Thompson, State Coordinator of Elections; the members of the Tennessee State Election Commission; and the members of the County Election Commissions of Shelby, Montgomery, Roane, Giles, Madison, and Hamilton Counties. John Knox Walkup is sued in his official capacity as Attorney General. Subsequently, the trial court allowed Forest Hills Associates and Dan B. Turley Company to intervene as plaintiffs in order to press their claim that the Act impairs contracts they had entered into. Intervening defendants are individuals who filed or signed petitions to incorporate the Towns of Fisherville, New Berryhill, New Forest Hills, and Independence. During the pendency of the trial court proceedings, an order was in effect restraining the holding of elections pursuant to the Act. Subsequently, a hearing on the merits of 336 this case was held on September 8, 1997, before Chancellor Irvin Kilcrease. Following the hearing, the Chancery Court rejected all of the plaintiffs' claims and found the Act to be constitutional. The plaintiffs appealed to the Court of Appeals and filed a motion requesting that this Court use its "reach down" authority and assume jurisdiction of the appeal pursuant to Tenn. Code Ann. § 16-3-201(d). Because the issues presented are matters of unusual public importance in which there is a special need for expedited decision and which involve issues of constitutional law, this Court granted the Motion to Assume Jurisdiction and heard oral argument. The Caption Provision of Tenn. Const., Art. II, § 17 Article II, § 17 of the Tennessee Constitution provides: Sec. 17. Origin and frame of bills. Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended. The caption of the Act at issue provides: An ACT to amend Tennessee Code Annotated, Title 6, Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and Title 6, Chapter 30, Part 1, relative to the distribution of situs-based tax collections after new municipal incorporations and the timing of elections to incorporate new municipalities. 1997 Tenn. Pub. Acts, ch. 98. The plaintiffs contend that this caption violates Article II, § 17 in three respects. They contend that the body of the Act is broader than its restrictive caption, that the Act embraces more than one subject, and that the body of the Act is in direct conflict with the caption. We agree that the body of the Act is broader than its restrictive caption. The second and third sentences of Article II, § 17, which form the basis for the plaintiffs' arguments, were added when the Constitution of 1870 was adopted. They were not present in the two previous Constitutions of 1796 and 1834. In 1872, in its first opportunity to construe the new language, this Court held that the language was mandatory. Cannon v. Mathes, 55 Tenn. 504, 518 (1872). We also held that if an act at issue embraces more than one subject or if the title does not express the subject of the act, the law is unconstitutional and invalid. Id. at 518-19. The Court further noted that the purpose of the provision was to "prevent surprise or fraud upon the Legislature, by means of provision in bills of which the titles gave no intimation, and which might therefere (sic) be overlooked, and carelessly and unintentionally adopted." Id. at 521. The Constitutional language was "to prohibit so-called `omnibus bills' and bills containing hidden provisions which legislators and other interested persons might not have appropriate or fair notice." State ex rel. Blanton v. Durham, 526 S.W.2d 109, 111 (Tenn. 1975). Nonetheless, the provision was to be liberally construed, so that the General Assembly would not be "unnecessarily embarrassed in the exercise of its legislative powers and functions." Memphis St. Ry. Co. v. Byrne, 119 Tenn. 278, 287, 104 S.W. 460, 461 (1907). This Court also recognized early that titles to acts may be general and broad or restrictive and narrow, and that the legislature has the right to determine for itself how comprehensive the object of the statute will be. Moreover, if the title is general or broad and comprehensive, all matters which are germane to the subject may be embraced in the act. If the matters are naturally and reasonably connected with the subject expressed in the title, then they are properly included in the act. Id. at 288-289, 104 S.W. 460. See also Chattanooga-Hamilton County Hospital Authority v. City of Chattanooga, 580 S.W.2d 322, 326 (Tenn. 1979), and cases cited therein. If, on the other hand, the legislature has adopted a restrictive title where a particular part or branch of a subject is carved out and selected, then the body of the act must be confined to the particular portion 337 expressed in the limited title. Byrne, 119 Tenn. at 289, 104 S.W. at 461. In the years shortly after the pronouncement in Cannon v. Mathes, there were numerous examples of acts which the Court declared void due to the restrictive nature of their captions and the broad nature of the body of the act. For example, in Jackson v. Weis & Lesh Mfg. Co., 124 Tenn. 421, 137 S.W. 757 (1911), the Court held that a caption entitled "[a]n act to make it unlawful to employ a child less than twelve years of age in workshops, mines, mills, or factories in this State" was restrictive. The Court held that the legislation at issue was void under Article II, § 17 because the text of the bill dealt with children 17 years of age and younger and was, therefore, broader than its limited caption. In Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036 (1910), the Court struck down a statute that described the selection process for presidential electors, the selection of delegates to a national convention and the formulation of party platforms when the caption was limited to "a compulsory system of legalized primary law, for the political nomination, to create the agencies for its operation and penalize its violation." The view has been followed. See, e.g., Armistead v. Karsch, 192 Tenn. 137, 143, 237 S.W.2d 960, 962 (1951)(finding unconstitutional an act which in its body provided benefits to widows of all city employees and to children and mothers under certain circumstances when the restrictive provision of the caption stated that the Act was "to provide certain benefits for widows of pensioned employees"). When a law is enacted to amend a previous enactment of the legislature, it is generally deemed consistent with Article II, § 17 if the caption recites the title or section of the law to be amended. State ex rel. Blanton v. Durham, 526 S.W.2d at 111; Pharr v. Nashville C. & St. L. Ry., 186 Tenn. 154, 160, 208 S.W.2d 1013, 1015 (1948). However, beginning in 1925 with the case of Hays v. Federal Chemical Co., 151 Tenn. 169, 268 S.W. 883 (1925), this Court recognized that "[w]here the title of the amendatory act recites the title of the act to be amended and also specifies the amendments to be made, the legislature is limited to the amendments specified and anything outside of these is void." Id. at 175, 268 S.W. 883 (emphasis added). Chief Justice Grafton Green explained: If the title of an amending act merely indicates generally that amendments of the original act are to be made, then it rests upon all those affected by the original act to investigate, and see in what respects the original act is to be changed. If the title of the amending act, on the contrary, sets out the particular amendments that are to be made to the original act, it may be reasonably concluded that no amendments other than those stated are to be attempted. It would promote deception, if, under a caption undertaking to specify amendments to be made, other and different amendments were included in the body of the act. Id. See also Woods v. Phillips, 558 S.W.2d 825, 829 (Tenn. 1977); Tennessee Electric Power Co. v. City of Chattanooga, 172 Tenn. 505, 517, 114 S.W.2d 441, 445 (1937). Similarly, this Court has held that when the caption is restrictive in that it "relates" to a specific subject, the body of the act must be germane to the restrictive portion of the caption. The phrase "relative to" means "relevant to; concerning; about; corresponding to; in proportion to." Webster's New World Dictionary (2d ed. 1980). Thus, when used in the caption to an act, it has been held in several Tennessee cases to have a restrictive or narrowing effect. See, e.g., State v. Chastain, 871 S.W.2d 661 (Tenn. 1994)(finding that caption stating "An Act to amend Tennessee Code Annotated, Title 55, Chapter 10, Part 4, and Title 53, Chapter 11, relative to the confiscation of motor vehicles of certain offenders" was a "narrow" caption); Farris v. State, 535 S.W.2d 608 (Tenn. 1976)(holding that body of act requiring that the trial judge charge the jury on parole consideration not germane to a caption which referred to an amendment "relative to verdict and sentence in felony conviction"). Applying the foregoing principles to the case before us, it is apparent that the Legislature has employed the use of a "restrictive" caption in Chapter 98, Public Acts *338 1997. While the caption refers to only one overall subject[2], the amendment of Title 6, Chapter 1, Part 2; Title 6, Chapter 18, Part 1; and Title 6, Chapter 30, Part 1, it purports to amend the statutes "relative to" only two subparts: 1) the distribution of situs-based tax collections after new municipal incorporations; and 2) the timing of elections to incorporate new municipalities. Sections 7 through 11 of the Act are not within the caption which is restricted to the above two specific subparts. Sections 7 through 11 reduce the population of territories that may incorporate from 1,500 to 225; repeal the prohibition against new incorporations within 5 miles of large cities and within 3 miles of smaller cities; relax the qualifying requirements for the petitioning of an incorporation election; grant territories proposing to incorporate after January 1, 1996, priority over "any annexation ordinance" of an existing municipality; and place time limitations on when portions of the Act will remain in effect. Although these provisions clearly amend the code sections referred to in the caption, they do not directly or indirectly relate to the "distribution of situs-based tax collections" or the "timing of elections to incorporate new municipalities." Accordingly, Sections 7 through 11 of Chapter 98 of the 1997 Tennessee Public Acts are broader than and outside the caption of the Act, and, under the controlling authority discussed hereinabove, the Act must be declared void pursuant to Article II, § 17 of our state Constitution. The purpose of Article II, § 17, is to prevent "surprise and fraud" and to inform legislators and the public about the nature and scope of proposed legislation. The constitutional purpose is effectively thwarted when a restrictive caption is employed and then legislation is adopted which is broader than the caption. In this case, although we are convinced the General Assembly's action was in good faith, the restrictive caption failed to adequately inform the members of the General Assembly and the citizens of this state about the nature and scope of the legislation that eventually passed. CONCLUSION We therefore conclude that the Act violates Article II, § 17 of the Tennessee Constitution and is, therefore, void. Having reached this conclusion, all other issues are pretermitted. The judgment of the Chancery Court for Davidson County is reversed. Costs are taxed against the defendants. DROWOTA, REID, BIRCH and HOLDER, JJ., concur. NOTES [1] In their complaint, the plaintiffs challenged the constitutionality of the Act as (1) violating the caption provision of Tenn. Const., Art. II, § 17; (2) violating Article II, § 18 of the Tennessee Constitution because it was not passed on three different days in each House; (3) impairing the obligation of the plaintiffs' contractual rights and retroactively depriving them of a vested right in violation of Article 1, § 20 of the Tennessee Constitution; (4) violating Article I, § 8 and Article XI, § 8 of the Tennessee Constitution because it suspends the general law for the benefit of individuals and violates equal protection; (5) violating Article XI, § 9 which provides that the General Assembly shall provide the exclusive methods by which municipalities may be created; and (6) violating Article I, § 5 of the Tennessee Constitution providing that elections are to be free and equal and the right of suffrage is not to be denied. [2] Since the Act encompasses one subject, we reject the argument that the Act violates Article II, § 17 because it embraces more than one subject. We likewise reject the notion that the Act violates Article II, § 17 because the body of the Act is in direct conflict with its caption, except to the extent that the body is broader than the caption.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 17, 2002 Session PELILIA SAN JUAN-TORREGOSA, et al., v. ENGRACIA TORREGOSA GARCIA, ROMULO G. GARCIA, ROEL T. GARCIA, RONALD T. GARCIA, IMELDA GARCIA-MARGULIES, and ZERLINA GARCIA- WALDROP, and ST. MARY’S HOSPICE CENTER and RANDALL E. NICHOLS, ESQ. Direct Appeal from the Chancery Court for Knox County No. 151792-2 Hon. Daryl R. Fansler, Chancellor FILED MAY 7, 2002 No. E2001-02906-COA-R3-CV Patient in “chronic vegetative state” is on life support, i.e., nutrition by “percutaneous endoscopic gastrostomy”. The Trial Court found by clear and convincing evidence that patient would not want to be subjected to artificial nutrition. However, the Court ruled since she had not executed a living will, the Court had no authority to authorize discontinuance of the artificial nutrition. On appeal, we reverse. Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Reversed. HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J., and D. MICHAEL SWINEY , J., joined. Gerald L. Gulley, Jr., Knoxville, Tennessee, for Appellant, Engracia Torregosa Garcia, by and through the Guardian Ad Litem, Gerald L. Gulley, Jr. David T. Lewis, Knoxville, Tennessee, for St. Mary’s Health System, Inc., d/b/a St. Mary’s Hospice Center. Kenneth W. Holbert, Knoxville, Tennessee, for Appellees.* *Appellees by and through counsel gave notice to the Court that they “elected not to participate in the appellate process” and did not file a brief.. OPINION Engracia Torregosa Garcia is a patient at St. Mary’s Hospice Center in Knoxville, and she is sustained through artificial hydration and nutrition. This action was initiated by Ms. Garcia’s mother and siblings, alleging that Ms. Garcia had been a patient at Methodist Medical Center prior to being moved to the Hospice, and that while at the Methodist Medical Center, she was “on life support consisting of intravenous hydration and nutrition by percutaneous endoscopic gastrostomy (PEG)”. Appellees further allege that when Ms. Garcia was moved to the Hospice, she was not provided with the PEG life support. Responding to the Petition, the Chancellor appointed a Guardian Ad Litem for Ms. Garcia, and also an Attorney Ad Litem for Ms. Garcia. A Restraining Order was issued, directing the Hospice to provide the nourishment to Ms. Garcia. At the conclusion of the trial, the Chancellor issued an injunction requiring the Hospice to provide nourishment as sought in the Petition. Ms. Garcia, by and through the Guardian Ad Litem, Gerald L. Gulley, Jr., and St. Mary’s Health Care System have appealed. The evidence at trial established that Ms. Garcia suffered a cardiac arrest on or about July 2, 2001, and although she was later resuscitated, she suffered oxygen deprivation to her brain for more than ten minutes, and is in a chronic vegetative state. Medical opinion established that she is breathing reflexively, but there is no evidence that she will be able to recover “cortical functions”. Ms. Garcia also has metastatic breast cancer. Ms. Garcia’s treating physician, Dr. Richard Parrish, testified at trial that he practices pulmonary medicine, and is also a critical care medicine specialist. He explained that being a critical care specialist involved knowledge of and training in critical illnesses of the heart and lungs, neurologic disease and infections. He opined within a reasonable degree of medical certainty that Ms. Garcia would not recover and that he had never seen anyone in her condition recover. He stated that Ms. Garcia was functioning on a low brain level, where the brain stem kept her blood circulating, maintained blood pressure, and maintained respiration, and she is in a persistent vegetative state and her chance of recovering any cortex activity was zero. The doctor was asked about his discussions with the family regarding Ms. Garcia’s transfer to the Hospice, and he said that he felt the Hospice was the best alternative. He further stated that he discussed the discontinuation of artificial nutrition and hydration with the family, and that they had ultimately decided to continue the fluids but stop the nutrition, which he felt was reasonable. He explained that, in the absence of a written directive from the patient, his practice was to allow the spouse to make the decision regarding the withholding or withdrawal of treatment, based on advice from the hospital’s attorney, and that this is what he has done for years. When asked why Ms. Garcia had been given life support in the first place, he explained that although her injury initially seemed very severe, he could not say from the beginning -2- whether she would recover, and wanted to give her every chance to improve if she could. On October 29, 2001, the Trial Court entered an Order of Final Judgment and Permanent Injunction. The Trial Court found that pursuant to the U.S. Supreme Court’s ruling in Cruzan v. Director of Missouri Health Dept., 497 U.S. 261 (1990), a person has a constitutional right to make a determination as to whether to accept or reject medical treatment, including artificial nutrition and hydration. The Trial Court stated that it was willing to concede, for the purposes of this case, that a living will or other document was not necessary to allow a person to exercise their fundamental and inherent right to die naturally and with dignity, and to refuse or withdraw from medical care. The Court further found as a matter of fact that the appellants had shown by clear and convincing evidence that Ms. Garcia would not wish to be subjected to artificial nutrition and hydration, and if she were competent, that would be the expression of her wishes. However, the Court found as a matter of law, that the general assembly had required in Tenn. Code Ann. §32-11- 103(5) that a person wishing to authorize the withholding of artificial nutrition and hydration could do so only by the inclusion of specific language in a living will or power of attorney. The Court ruled the temporary restraining order should be made permanent, and the Hospice and the relatives were permanently enjoined from withholding nourishment from Ms. Garcia. The Court also entered an Order appointing Ms. Garcia’s husband as conservator of her financial affairs. Appellants assert that the Trial Court erred in refusing to allow Ms. Garcia’s family to terminate the artificial nutrition and hydration which is keeping her body alive, and thereby failing to honor her wishes and denying her constitutional right to bodily integrity. Most states have recognized that a person has the right to refuse unwanted medical treatment. Many states have found that this right stems from the common law right to be free from any type of medical treatment without giving informed consent. See In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989); In re Gardner, 534 A.2d 947 (Me. 1987); Mack v. Mack, 618 A.2d 744 (Md. 1993); Guardianship of Jane Doe, 583 N.E.2d 1263 (Mass. 1992); In re Martin, 538 N.W.2d 399 (Mich. 1995); In re Conroy, 486 A.2d 1209 (N.J. 1985); Matter of Westchester County Medical Center, 531 N.E.2d 607 (N.Y. 1988). Some states have grounded this right in the federal (and sometimes state) constitutional right to privacy and self-determination. See In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990); State v. Vogel, 537 N.W.2d 358 (N.D. 1995); In the Matter of Grant, 747 P.2d 445 (Wash. 1987). Still others have found that the right exists pursuant to both constitutional sources and the common law. See Rasmussen v. Fleming, 741 P.2d 674 (Ariz. 1987); Foody v. Manchester Memorial Hospital, 482 A.2d 713 (Conn. Super. Ct. 1984); In re Torres, 357 N.W.2d 332 (Minn. 1984); In the Matter of Guardianship of L.W., 482 N.W.2d 60 (Wis. 1992). Tennessee clearly recognizes the right of a competent adult to bodily integrity and self-determination in informed consent cases, and that a competent person can refuse medical -3- treatment. See Ashe v. Radiation Oncology Associates, 9 S.W.3d 119 (Tenn. 1999); Shadrick v. Coker, 963 S.W.2d 726 (Tenn. 1998); Church v. Perales, 39 S.W.3d 149 (Tenn. Ct. App. 2000). See also State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App. 1995). This Court has held that the citizens of our state are afforded a greater right of privacy by the Tennessee Constitution than that provided in the Federal Constitution, and that “. . . the Tennessee Constitution and especially the Declaration of Rights in Article I, indicate a strong historic commitment by the citizens of this State to individual liberty and freedom from governmental interference in their personal lives. Our Supreme Court noted this commitment in Davis”. (Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992). Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996), p.259. The United States Supreme Court in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), recognized that a competent person had a constitutionally protected liberty interest in refusing unwanted medical treatment. The Court stopped short of finding that an incompetent person would have the same right, however, the court said: An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment, or any other right. Such a “right” must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdraw in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural safeguard by the State. We hold that it does not. Id. at 280. Tennessee’s public policy on this issue is set forth in the Legislative intent section of the Tennessee Right to Natural Death Act, codified at Tenn. Code Ann. §32-11-102. This statute reads: The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment. This policy belongs to every person, and does not distinguish between those who are competent and those who are not. In State Dept. of Human Services v. Northern, 563 S.W.2d 197 (Tenn. Ct. App. 1978), an elderly person was found to be incompetent to make a decision regarding whether to amputate her feet, and the Department of Human Services petitioned the court for -4- guidance regarding whether the patient should undergo surgery without her consent. The Court found that, based on the testimony of several medical professionals, that the state was entitled to take action to preserve the patient’s life. The Court opined, “If the patient would assume and exercise her rightful control over her own destiny by stating that she prefers death to the loss of her feet, her wish would be respected. The doctors so testified, this Court so informed her; and this Court here and now reiterates its commitment to this principle.” Id. In his concurring opinion, Judge (now Chief Justice) Drowota stated that he was generally in agreement with the principle that an individual had a right to refuse treatment so long as that individual was competent. Id. at 213. He also stated that when an individual was incompetent to make such a decision, the state had a duty to become involved by trying to determine what “the desires of the patient would have been had he been conscious and competent”, and that the initial assumption would be that the patient desired lifesaving treatment unless that assumption was contradicted by previous statements made when competent. Id. As further evidence of the State of Tennessee’s recognition of the right of an incompetent patient to not be subjected to unwanted medical treatment, the legislature has provided several means by which an individual’s right to consent to or refuse treatment can be exercised where an individual is incompetent. Tenn. Code Ann. §32-11-101 et seq. provides that a person can execute a living will which shall control certain medical decisions in the event the person subsequently becomes incompetent. Tenn. Code Ann. §34-6-201 et seq. provides for decision-making authority to be transferred to someone else upon the patient’s incompetency by way of a durable power of attorney for health care. Tenn. Code Ann. §34- 3-101 et seq. provides that a conservator can be appointed for a disabled adult, and that such conservator can be vested with the right to give or refuse consent to medical treatment. Tenn. Code Ann. §34-3-104(8). It is clear that from State Court decisions, artificial nutrition and hydration are to be included in the realm of medical treatment which a patient has a right to refuse. The American Medical Association concurs in this assessment, as stated in an ethics opinion on the subject: Even if death is not imminent but a patient’s coma is beyond doubt irreversible and there are adequate safeguards to confirm the accuracy of the diagnosis and with the concurrence of those who have responsibility for the care of the patient, it is not unethical to discontinue all means of life-prolonging medical treatment. Life- prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration. American Medical Association Council on Ethics and Judicial Affairs, Opinion 2.18 (1986). Tenn. Code Ann. §32-11-103(5) specifically states that medical care includes “artificial or forced feeding of nourishment, hydration, or other basic nutrients”. In this case, the Trial Court found based upon Tenn. Code Ann. §32-11-103(5), that an incompetent person’s right to refuse artificial nutrition and hydration could only be exercised by a valid written document (living will or durable power of attorney) which contained the language found in the statutory section. -5- The trial court felt that this section evidenced a goal of the legislature to limit these types of decisions to a written expression of the individual’s intent. Tenn. Code Ann. §32-11-103(5) states: "Medical care" includes any procedure or treatment rendered by a physician or health care provider designed to diagnose, assess or treat a disease, illness or injury. These include, but are not limited to: surgery; drugs; transfusions; mechanical ventilation; dialysis; cardiopulmonary resuscitation; artificial or forced feeding of nourishment, hydration or other basic nutrients, regardless of the method used; radiation therapy; or any other medical act designed for diagnosis, assessment or treatment or to sustain, restore or supplant vital body function. This part shall not be interpreted to allow the withholding or withdrawal of simple nourishment or fluids so as to condone death by starvation or dehydration unless the provisions of the instrument which creates a living will or durable power of attorney for health care include the following or substantially the following: "I authorize the withholding or withdrawal of artificially provided food, water or other nourishment or fluids"; (Emphasis added). When initially enacted, this section did not contain the emphasized language, but said: “In no case shall this section be interpreted to allow the withholding of simple nourishment or fluids so as to condone death by starvation or dehydration.” Tenn. Code Ann. §32-11-103(5) (1985). In 1987, this section was interpreted by the Attorney General to prohibit the withholding of basic nutrients whether by intravenous feeding, tube feeding, or any other type of artificial feeding. See Tenn. Op. Atty. Gen. No. 87-21. In 1991, the legislature amended the Act by deleting this prohibition, and substituting: This part shall not be interpreted to allow the withholding of simple nourishment or fluids so as to condone death by starvation or dehydration unless the provisions of the instrument which creates a living will include the following or substantially the following language: I authorize the withholding of artificially provided food, water, or other nourishment or fluids. 1991 Tenn. Pub. Acts Ch. 167.1 1 That same year, the legislature amended the statute again to add “withdrawal” along with “withholding” in the above definition, and amended the statutory living will form to include a specific provision regarding artificially provided nourishment and fluids. 1991 Tenn. Pub. Acts Ch. 344. -6- The Chancellor’s construction of this provision, would render this section of the statute in conflict with other sections of the statute. For example, in the “legislative intent” section of this statute, Tenn. Code Ann. §32-11-102, the general assembly declared that it is the “law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person’s own medical care”, and that the general assembly “further” empowered the exercise of this right by providing that persons can execute a living will. Use of the word “further” establishes that a living will is an additional way that one can exercise this right declared to be fundamental and inherent. The Trial Court’s construction also conflicts with the provisions of Tenn. Code Ann. §32-11-110(d), which states “Nothing in this chapter shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of medical care in any lawful manner. In such respect, the provisions of this chapter are cumulative”, this language suggests that a living will is merely one way that a person can exercise her right to refuse medical care. Further, Tenn. Code Ann. §32-11-110(e) states that “This chapter shall create no presumption concerning the intention of an individual who has not executed a declaration to consent to the use, withholding, or withdrawal of medical care.” Accordingly, the fact that a person has not executed a living will does not create any presumption that they would not want medical treatment withdrawn or withheld. Clearly, the Chancellor’s rationale does not comport with the legislative intent expressed in the statute. The Living Will Statute, when read in its entirety, recognizes that individuals in this State have the fundamental and inherent right to refuse medical care, and that medical care includes the provision of artificial nutrition and hydration. The statute provides one way that the individual’s rights may be exercised, and the fact that an individual has not executed a living will does not create any presumption that that individual would not necessarily exercise her right to refuse medical care. Tenn. Code Ann. §32-11-110. Other jurisdictions which have enacted living will statutes who have addressed this issue are in accord with this interpretation. See DeGrella v. Elston, 858 S.W.2d 698 (Ky. 1993); In re Fiori, 673 A.2d 905 (Pa. 1996); In re Tavel, 661 A.2d 1061 (Del. 1995); In re Gardner, 534 A.2d 947 (Me. 1987); Matter of Westchester County Medical Center, 531 N.E.2d 607 (N.Y. 1988). We concur with the Trial Court’s fact finding that evidence is clear and convincing that Ms. Garcia would not want to be kept alive by artificial means and that her wishes, expressed while she was competent, would be to have these services discontinued. Courts have the duty to protect and when necessary enable individuals to exercise his or her Constitutional Rights. We Order this matter remanded and direct the Chancellor appoint a conservator to carry out Ms. Garcia’s wishes, including the refusal for medical care. Tenn. Code Ann. §34-3-104. The requisites for the appointment are established in this case, as there is clear and convincing evidence of Ms. Garcia’s incompetence, and the statute contains a priority list of persons to be considered for the appointment. Since Ms. Garcia had no written preference, her husband would be the first choice to act as her conservator and make medical decisions for her. See Tenn. Code Ann. §34-1-126 and §34-3-103. -7- We reverse the Judgment of the Trial Court and remand for proceedings in accordance with this Opinion. The costs of the appeal are assessed to the Appellees. _________________________ HERSCHEL PICKENS FRANKS, J. -8-	{ "pile_set_name": "FreeLaw" }
Order filed, April 29, 2016. In The Fourteenth Court of Appeals ____________ NO. 14-16-00165-CR ____________ ROBERTO ANTONIO LOPEZ MOLINA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1441402 ORDER The reporter’s record in this case was due April 25, 2016. See Tex. R. App. P. 35.1. The court has not received a request to extend time for filing the record. The record has not been filed with the court. Because the reporter’s record has not been filed timely, we issue the following order. We order Gail Rolen, the official court reporter, to file the record in this appeal within 30 days of the date of this order. PER CURIAM	{ "pile_set_name": "FreeLaw" }
212 Or. 213 (1957) 319 P.2d 579 UNANDER v. PASQUILL ET AL Supreme Court of Oregon. Argued September 26, 1957. Reversed December 18, 1957. 214 William E. Dougherty, Special Assistant Attorney General, Portland, argued the cause for appellant. With him on the briefs was Robert Y. Thornton, Attorney General, Salem. John P. Bledsoe, Portland, argued the cause for respondents. With him on the brief were Andrew Koerner and Koerner, Young, McColloch & Dezendorf, Portland. REVERSED. WARNER, J. Sig Unander, as State Treasurer, appeals from an order of the Circuit Court for Multnomah County, Probate Department, overruling the Treasurer's objections to the court's determination of the inheritance tax in the estate of Caroline A. McKinnon, deceased. John Pasquill and Carolyn Kamm Jackson are Mrs. McKinnon's executors. The decedent left a net taxable estate of $802,810.51. After due allowance for a charitable bequest of $10,000 the tax assessed pursuant to ORS 118.100(1)[1] amounted to $55,357.80. Specific legacies totaling $235,625 distributed in varing amounts were left to twenty persons, none of whom were lineal descendants of the deceased, but all of whom were "collateral" or "nonrelatives" of the 215 testatrix. All were liable for the payment of the tax determined under the provisions of ORS 118.100(1), hereinafter called the "basic tax," and after apportioned as their respective shares under ORS 118.110[2]. In addition thereto, these legacies were liable to such taxes chargeable against them under ORS 118.100 (2) and (3), hereinafter called the "collateral tax," according to the status of the legatee's relationship to the decedent. The taxes on the specific legatees determined as their proportion of the basic tax paid, totaled $16,511.31. The collateral taxes on the specific legacies amounted to $12,866.47. No issue is raised concerning the foregoing figures. Mrs. McKinnon's will included the following article: "NINTH: I direct my executrix and executor hereinafter named to treat as an obligation of my estate and to pay, without apportionment thereof, all estate, inheritance or other death taxes or duties imposed and made payable by reason of my death by the laws of the United States or of any state, territory or country." Were it not for this testamentary provision, each specific legacy would have been distributed less the amount of its burden for its share of the basic tax 216 paid on the estate and the collateral tax charged against it. But following the direction of the Ninth article, the taxes thus paid for each of the several specific legatees were correctly treated as an additional gift or taxable benefit accruing to each specific legatee. Each specific legacy in the amount designated by the will, plus its share of the basic tax and collateral tax paid thereon, established the amount for the separate determination of the collateral taxes chargeable against each of such legacies. The process thus employed is better clarified by illustrating its application to the specific legacy of $2,000 payable to Mary R. McKinnon, a sister-in-law of the decedent: Added Legacy Added Proportion Value per Collateral of Basic of Collateral Will Tax Tax Total Bequest Tax Paid $2,000 $ 80. $145.19 $2,225.19 $ 98.02 Under the foregoing formula the legatee named will receive her legacy in the net amount of $2,000. The correctness of the computations of the taxes charged against each of the several specific legacies according to that formula is accepted by the State Treasurer and the executors. The foregoing method of treating taxes paid pursuant to the Ninth article as an additional benefit subject to tax is supported by a wealth of authority: Bouse v. Hutzler, 180 Md 682, 26 A2d 767, 141 ALR 843; In re Bowlin's Estate, 189 Minn 196, 248 NW 741; In re Irwin's Estate, 196 Cal 366, 237 P 1074, 1077; In re LeValley's Estate, 191 Wis 356, 210 NW 941; Textor v. Textor, 170 Md 128, 183 A 247, 248; 85 CJS 1033, Taxation § 1182; 28 Am Jur 137, Inheritance, etc., Taxes § 280. 217 1. In Lairmore v. Drake and Borough, 185 Or 239, 202 P2d 473, at pp 245-6, the court defined the word "benefit" as that which contributes to advantage or profit. Black's Law Dictionary (3d ed) calls it a pecuniary advantage or profit. Also see Restatement 12, Restitution § 1b. We deem that the payment in whole or in part from the funds of an estate of inheritance taxes on any specific legacy a further taxable benefit when such payment is directed by a decedent's will. The issues on this appeal present but one problem, i.e., the correct method for determining the collateral tax to be paid on the residuary legacies. The executors contend the respective shares of the basic tax chargeable against the value of the residuary legacies should be first deducted and the collateral tax assessed on the thus diminished amount. To the contrary, the State Treasurer takes the position that the collateral taxes against these gifts must be determined without such deduction and in substantially the same way the specific bequests were taxed. The residuary clause of the testament is found in the Seventh article and, so far as pertinent, reads: "SEVENTH: All the rest, residue and remainder of my estate I give and bequeath as follows: Two-thirds (2/3) to my niece, CAROLYN KAMM JACKSON, and one-third (1/3) to my niece, KATHRYN KAMM HAWKINS. * * " In the interest of simplification, we will from this point on refer to the residuary gift as a single gift to one person. We will first reduce to a condensed mathematical calculation the respective positions of the respective parties. 218 The treasurer claims the net value of the residuary estate should be computed as follows: Total taxable value of estate $802,810.51 Less: Net legacies to others $235,625.00 Collateral taxes paid for others 12,866.47 Basic tax paid for others 16,511.31 __________ Total benefits to others 265,002.78 __________ Balance taxable to remaining or residual legatees $537,807.73 The executors, to the contrary, argue that the net value of the residuary estate should be figured in the following manner: Total taxable value of estate $802,810.51 Less: Net legacies to others $235,625.00 Collateral taxes paid for others 12,866.47 Total basic tax 55,359.59 __________ Total 303,851.06 __________ Balance taxable to remaining or residual legatees $498,959.45 We will call the Treasurer's computation Formula No. 1 and that of the executors Formula No. 2. We 219 focus attention on the amount of $537,807.73 in Formula No. 1 as the figure upon which the Treasurer would base the collateral tax of the residuary beneficiaries. Also note the figure $498,959.45 in Formula No. 2 which the executors would employ for the same purpose. 2. The residue of an estate "is what remains after paying the legacies of the will and the debts and expenses of administration. It includes the whole estate, of every description, left by the testator, subject to all deductions required by law or by direction of the testator." (Emphasis ours.) In re Shepherd's Estate, 152 Or 15, 34, 41 P2d 444, 49 P2d 448. This necessarily includes all disbursements made to taxes by direction of the testatrix under the Ninth article of the McKinnon will before the value of the residuary estate can be determined. The foregoing concept of what constitutes a residuary estate forecloses a determination of its value until after all deductions required by law or directed by the testator are fully satisfied. (152 Or 34) As is usual, in the instant matter it is the only fund of the estate yet remaining in the executors' control after the fulfillment of the testator's directions as to the residual bequests. In the ordinary course, and in the absence of any tax-paying provision comparable to article Ninth of the decedent's will, the figure thus determined to be the value of the residuary estate is of necessity the only basis for the determination of a residuary legatee's obligation to pay his proportion of the basic tax computed in accordance with ORS 118.100(1) and the collateral taxes, if any, due under subsections (2) and (3) of that section. The point of departure between the Treasurer and 220 the executors lies in their respective methods for arriving at the value of the residuary estate. Whereas, the Treasurer allows the executors a deduction of $16,511.31 for basic taxes paid in behalf of the specific legatees (see Formula No. 1), the executors claim a credit of $55,359.59 for all basic taxes paid by them (see Formula No. 2). This latter amount represents the entire amount paid on this estate as the basic tax. $38,848.28 of the latter sum is that part of the basic tax apportioned to the residuary estate on its value of $537,807.73, as determined by the Treasurer (see Formulas No. 1 and No. 2) and is the exact difference between the Treasurer's valuation of the residuary estate and the valuation which the executors admit, i.e., $498,959.45. This difference in the residuary value results from executors' method of calculating the collateral tax on the residuary estate. In brief, their manner of determining that tax is to arbitrarily employ the basic tax as an allowable deduction against the value of the residuary estate and then tax the balance thus attained. Thus: (1) Value of residuary estate per Treasurer (see Formula No. 1, supra) $537,807.73 (2) Less residuary estate proportionate share of basic tax 38,848.28 ___________ (3) Value of residuary estate per executors (see Formula No. 2, supra) $498,959.45 The unique and anomalous attribute of the executors' argument is that they ignore and repudiate, in so far as the computation of the collateral tax on the residuary legacies is concerned, the very method used 221 in arriving at the amount of the collateral tax chargeable against the specific gifts to the specific legatees. There they did exactly what is proposed by the State Treasurer for the tax on the residuary legacies, that is, they apportioned the basic tax on the value of each specific legacy and then assessed the appropriate collateral tax, but without first deducting the amount of its share of the basic tax. See exemplification of method applied to the specific legacy of Mary McKinnon, a sister-in-law, appearing earlier in this opinion. To depart from the method of tax computation there applied would not only accord to the residuary legatees a preferential benefit not enjoyed by the specific beneficiaries, but would also place us in the position of giving approval to a method for the assessment of collateral taxes not countenanced by law. The executors seek to justify their position by arguing: "It is clear that the sum on which the State Treasurer seeks to tax the residual legatees is an amount which was paid to the State Treasurer as basic inheritance tax. It is clear that the residual legatees never received any part thereof. It is clear that under the terms of the decedent's Will they never had a right to receive any part of it or to have it applied for their benefit." (Emphasis ours.) The argument is untenable. It is also contrary to the plain legislative intent. The tax paid, both basic and collateral, is initially a part of the bequest received. Before payment, it is an element of the gift or inheritance coming to them from the testator. True, they never have the whole amount in hand at any one time, 222 but ORS 118.240[3] makes the executor or administrator, as the case may be, the temporary custodian of that part reserved for inheritance taxes and the section mentioned mandates that the amount thereof be deducted from the inheritance of given legatee and thereafter paid by the executor or administrator directly to the State Treasurer. In so doing, the decedent's representative is the agent, so to speak, for the payment of a tax debt for which the beneficiary is personally liable under ORS 118.210[4] and in so functioning, renders the legatee a further benefit. As said by Mr. Justice HARRIS in In re Inman's Estate, 101 Or 182, 199, 199 P 615, 16 ALR 675: "The value of the property received is one of the determining factors in the measurement of the amount of the tax. It is true that the executor or administrator is required to pay the tax, but the payment is nevertheless based on the value of the interest which the successor is entitled to receive and which in contemplation of law he has received." (Emphasis ours.) The collateral tax on the instant residuary estates, taken as they are by the nieces of the testatrix, are assessed pursuant to ORS 118.100(2) on any "* * * legacy, gift or the beneficial interest to any property 223 or income therefrom * * in addition to the tax levied on such estate." No provision in that section or elsewhere in our inheritance tax laws is made for any deductions from the value of any inheritance for the amount of the basic tax apportioned to it before computing the collateral tax due as the executors would have us do. The collateral tax is in no sense a tax upon a tax, but an amount of an additional tax, computed on the same thing of value and at the same value upon which the basic tax is apportioned, but at a different rate. 3, 4. All tax deductions are a matter of legislative grace, to be strictly construed against the taxpayer. Puget Sound Bridge & Dredging Co. v. State Unemployment Compensation Commission, 168 Or 614, 126 P2d 37 (1942); Keyes v. Chambers, 209 Or 640, 307 P2d 498 (1957). In fact, if there is even a doubt whether the legislature granted a deduction or exemption, the presumption is that the legislature did not so provide and we have so held. "No exemptions should be allowed, therefore, unless they are plainly warranted, and the intent of the legislature to exempt must be clear beyond a reasonable doubt. * * * An intention to exempt will not be implied from language which is susceptible of any other reasonable interpretation." Allen v. Multnomah County, 179 Or 548, 552-53, 173 P2d 475. 5. We, therefore, hold that the basic tax should not be deducted before figuring the amount of collateral tax to be paid. The executors assert that if the method of computation used by the State Treasurer is adopted by this court it will result in a nonuniformity of taxation which will violate Article I, § 32 of the Oregon Constitution providing for uniformity of taxation. It is 224 interesting to note, however, that respondents do not cite any cases to uphold their point, but instead rely only on hypothetical examples not in point. 6. This court has passed on the constitutionality of the Oregon inheritance tax before. We need cite only one case to uphold the Treasurer's position here. In In re Estate of Heck, 120 Or 80, 250 P 735, at page 85, the court sets forth some figures based on the identical theory propounded by the executors in the instant matter and concludes by holding that the tax is constitutional. We do not find that the legislature has discriminated between legatees of the same class in such a way as to destroy uniformity of taxation. Also see Cabell v. Holman, 144 Or 127, 134, 24 P2d 1; Keyes v. Chambers, supra, at pp 663 and 664. The order of the circuit court will be reversed and a new order entered in conformity with this opinion. NOTES [1] "ORS 118.100 Rates of tax. (1) The rates of tax on all estates shall be as follows: [Here follow the rates] The above tax on the estate shall be in full for all inheritance tax on any devise, bequest, legacy, gift or beneficial interest to any property or income therefrom which shall pass to or for the use or benefit of any grandparent, parent, spouse, child or stepchild or any lineal descendant of the deceased. "(2) When any inheritance, devise, bequest, legacy, gift or the beneficial interest to any property or income therefrom shall pass to or for the use or benefit of any brother, sister, uncle, aunt, niece, nephew or any lineal descendant of the same, in every such case, in addition to the tax levied on such estate, such person shall pay an inheritance tax as follows: [Here follow the rates] "(3) In all other cases, in addition to the tax levied on such estate, such person, body politic or corporate shall pay an inheritance tax as follows: [Here follow the rates] " * * * *" [2] "ORS 118.110 Tax rate applicable to net estate after allowing deductions; apportionment. The rates of tax prescribed in subsection (1) of ORS 118.100 shall be applied to the entire net estate remaining after allowance of the deductions specified in ORS 118.070 and the tax thus computed shall be apportioned to each distributive share of the estate in the ratio which each distributive share bears to the net estate. However the proportion of such tax found to be apportionable to devises, bequests, legacies or gifts which are exempt under ORS 118.020 shall not be collected." [3] "ORS 118.240 Delivery of property prior to collection of tax by personal representative prohibited. Any administrator, executor or trustee having in charge, or in trust, any property for distribution, embraced in or belonging to any inheritance, devise, bequest, legacy or gift, subject to inheritance tax shall deduct the tax therefrom, and within 30 days thereafter pay the same to the State Treasurer, as provided in this chapter. If such property is not in money, he shall collect the tax on such inheritance, devise, bequest, legacy or gift upon the appraised value thereof from the person entitled thereto. He shall not deliver, or be compelled to deliver, any property embraced in any inheritance, devise, bequest, legacy or gift, subject to tax under this chapter, to any person until he has collected the tax thereon." [4] "ORS 118.210 Liability for tax. All heirs, legatees, devisees, administrators, executors and trustees, and any grantee or donee under a conveyance or gift made during the grantor's or donor's life if the conveyance or gift is subject to tax under ORS 118.010, are, respectively, liable for any and all taxes mentioned in ORS 118.010, with interest thereon, until the same have been paid as in this chapter provided."	{ "pile_set_name": "FreeLaw" }
90-?-/5 3RIGINAL -•^ M-/-r> * ^ - C f? CGII3Y OF CRIMINAL APPEALS SEP 18 2015 __ __ FILED IN V /?& S&nK&Z: &^ X?Z^^-^mi 0F CRIMINAL APPEALS £&?&&-->&£- ) SEP 18 20'5 Abe) Acosta, Clerk H <T(/ 'hg-TPT^isr— d?-^ £?-> A-F~ /S CLwss>i£r .^&- § ~~7~?2s<&zi- d^^x^r" ^Tfac^Jh /^7hz^ SC/^<£&3S^t> 07) /%/^pt^^ \J /ht/-2 . 394-tS? 4~>£ /g) Srh^BoW/ tA C/^^/^ 5~1( L/S31?/ 3^^ £2) C.o2>s^ : ^P 3g^ 2-g. ^ £,\ Q''v) Of^ C^/HPt^> J2-&S3 s&- crz^S y^^^ny^^^^ ? £=^^u^y sM^Pv^— ^7^ S^0&^&&/&~£' C'lv) /??T?/2y>&3> ~T~y^&> -r-^y^H^ d^zyi^P^ cr^2>^-- yn^^ty^— ^2^ C^ty^y^-y~ /ytP /9-ytJ /y?uy>t/g~ Pyf-^&h/ <Tcy>y'^' A& c£Zl&^ S, B^tis?-&a) G^rZ^rJ^^ r&-rZ- '<~&:r>J^&J. "T/^gr //j^t* (Zd>cy^r- jy^ ^r^ ^^/2>Sc5>^ <U^y?-^ yn/o^^~ S?^nP /Z-^^S^iEz w\ U/yyyy%Cr7p^ ^P>yyz^r~' cC^y^ \y^y&-T£> y^^Z-^y7. ZPky~ d^&-7f yo a^r- y? E /zlsty€2-LcyyJ IT, /t pttr^S-&^>ty /&-?&-^> g&^rtJ (0y^ y&<2~<L- /xt^S <1jP^j> S?y-7 v~Zy /<L/y^&^r-^ /p^ \y-?v^^r yZ. ^d^^y^r~zS' y&-^^ y&&&r- yZ&=yp£> 7^&> £> ^yz^^^^xy-pr- y?^u> yr->$yzS~ ty/hi^co. So <0y^Er^&-^> y^^^cy -2><?teT yL/05y— p>yc&-y~^tz-jy-~ ph P^Stz^p*? Pyz&m t2,sy2^~rL&+o£?^ <^?y£=' £&-7ty ^j&^s&'zP~ "7^^"^" c2^e^ez-&rey p^7&<^£> ^^T^yc^C (lScyr<^y^iv#-7jJ\ tf^t>yrT^sy—^ ~y~-7?-7?^—yny&rtvSbff Z^yf-y^yyypiy^L^ ^y^^^- sty&e—' y^-y yy^^nP <&-^J "PyV^ iyy^> ^€> , ^P^yp^ yZ^?ZL-4&7C^ Xzyyyp&rep^ 7yy¥-~&-&-^ yy^^y^^tL^^(^<y^^ t&y' sV-rsr Py^^t^^^ p/O y&yW?y>-y_ y20=~ y??^/ c^d^ c^yty ^v~p t^yy?-^ A/-yy™}> d^yy^z^t) y&-7Sh J"z^Py^e^^^y-^^> / p^ SZ^C<e>^) <? &t?iy^ -^—yP-rW- -?~/&~i5~ S&~frr& yt&<hy<y-T&7tyxhjs' -pr^g-^ y3y&&i£-€>ytJ Z^y^L? yyyy$L-? Py?oy^&r&^y p&Z-y^0iy^& gcp Zyy^y &y^ %. ^/2^ CPU? ^&yrv^d n \ t? y==y^<z&7L^ Sz^z^i y)?-^ /^^^^^^^ ^ ^^-^5^ y+?. /^y^ c- xy~&~~&-^ AZ~£^ p^fr^ yy& <ZJ~2y/cy % C^<fZy CZ/&E& yJ . —r.* ^y /uy/<r~k?- ytf—hZ y P w^sr <^~y y^Tty-7 /yy/9-^ >ZEP^y^ y^-y^=i> py^&-7>^-L y-y^f O^^ ts&a+mi-G; & P?^y^^^^- ^-_ 7?yte>xjy^&?^7— ^y~y> P p&i-^ c^^ ? y7&-^ye-yLZ ® PPyt&t^^yhTj sy- d.0 eye- h yUc^y- ^y^?-ty& y?-? //£" yy-7p£> ywz> iy^^<^<_<^ y?-?^h ,uy?-^ 7>&^zyb ~PyZ^5s'^ p=&-Cjsr&7C.<> uy&o>£-^> <L./?7y<r^ y&-^p /£&79-^&->tZ &&<~^r P^t^^o^J ^-& xyt&7,?iyyz- <y?V^-f^ /y~Z •> p7Z^^Pd~>^ /^-t^-x> g't&EErTP p>&y=>yZ/iy&£> Zy(Z p yy^y7yi/=y6l^>-^^<r- syy/i-ty^', P-<y~ / £ d t-~&7<?-rz- \y-7<y:-7$-sr~ -y~y-y=^ Sxr-&-Tr^~ yn^nSTr-Z' u _r a=Fb / s ^zn^-z^- d^p-g^^r d_ y^^7^~ p7Z&7^\ /&- Pyz<y-&/>y-y?-<-— / ^ V~^7^/2^c^-^^r-^^Wr •£r<y&zyy o7^> £- Pd^Sjy^s s>-^Z ^r-yy^E3 7 ^ ^ ^ yrio-nyiy & y^ yfaZ c9~cy^7C~ ^-jSyy-c^c^p &yZyy%^i/si)yg^i^xy&~ £Ezy,th-^?ty'c~y^ pT^s^t &) ""7^5= P^d^jB^^h Pl£^^xi^-S' ^ry^^r~ V~??-tt>e^E> y <> yV& yyyy^-^y ~ir~& y^sP ®~^P Zy^ y^pp^t^y^^yyv- Uy/fS /&-?> tyy S^Z> Zsy^t-^L- ^^yocZd^^ ~y^~& pyZy& yz.7y-is^y~-- pZyyy^7 P==yz-e>^m p' ytPP^-^-^p-^rhf-ic^pi^Y /p^ _ CVy^^<r-&~7v) y^y?-^) yZ-^L^^cy-LyJ S ^yH^TlEry^^Tiy^y-^ /W yV7tt> cy V~ "7 ~yp^~ ~P>^r=&^y7> y^Py^s- yyyy?-y-^Pyyi/~&-^ ZZZz^yP^- p? p?yhzr- (& yzr -p^pP& y^^CZg?^ / yiZtf- PV~~ y^.y^nZ'-T^' y>y?-irs sP? ^ <^y-&yc~ <• ~sr~7~M^zy& y?~7£-^r ^ &rf_^o cy j> p ZZ&B £&&? /^' y^r~&- <ypp& 3£y$s ' <?— ZLe>-ny s v-zyuvv<y-^yy?<~ PSX€/£r'P Pa/ <r?t7 s" tZ^yt-^tSr, ^g^Z ZPzzy^y?™Zj> y?- 1P • pZ-yZZ^&yzSy? 3 f ^ - yy f <p3£ y3-&5> S-^yn^P^ Scyjeycy \P. C/H-ry~, <£"" cy s 3zr/ 3 i^^. 'yyy^ (PP^ c^^?P^ 7tSf7m^y/ '" (L&sv'C&?^PZntG- -v^e: V<D c utJrrmtrtyp' 3 •v-yg^-^yyiJ=^y' r" h^ / &-Z / V -7~K^ p:y^^B OF £-^o G—t C-. yl/o p&/?y£ &<n) / pyy—^H, gzyt $_/'<£-&^-^-yi^i tyy% ^--AZ C^/L//>yv^fi) ft-s^T, nyyi-. s xyi&^~:^yiyu^^tyy~~^ 'plfr&r? Z) ~^>f-r <? / A> -g vr-yf-rtJ^y^ ft^y? Zj^&ZD^ytyr- (P P@~Z y-/Z^ UppP^s^ -y^^y^<r7yjyt^ y^y c? Z? 5V^-- / Z -7iZ+ Q?) yS /si^pozs'y&t-j^ p~d? /fyycy ocJ yS^ /p-^P^tij^y^ty^y^ y^y^s> cz-yiy&nZ yp~y- <> /Uy/f^e^iyyyiy^-'^ P yp^>z^ cUyyf-^S A>' O -7~7P^ yZPy^yy^TC. y?ytf-5>^ yfv-r7 y9-t>yy&?Z^ ep^ PP" rf-"P* T>^ (U>cyy^- &y^ PpP&py^s' 3~y/&uc-Z> y'e-v"' ypyf^ysr pdcJAZb -y-yy^t^^~ -7^^^" -^-yZ^y?^-^ dyS>cyyyj^^ ^cP ^~^ CZj0tze^=cj7~ yyZ h&TtZpysTy^ s1<^P>y?>&^&y<&y/ g?p= yr-&^ ^^y-T^^i^^t^ri^ty^—5. $>Src^ BP-&yPpy/t>& 1/ s^a^r-g" "7Z j$uz^><?/ 7£>3 P/^yhy&yZ- p&7&77f- pyJ p&^-ysF-j-t&yiy' pyp^pz&c^yf&y^ p-^/z^<? <p~yy^~ yL&cy/z^r~ ~7~<& s^-ty g'^r-ypyyiP 'TT^ yS'S'tS^ y^yZ^X<S^yy-^yZi /y-^^-l^yy^'« y9^Ppy^^c^^-^tyy- P^P^-cy^ ^r^^i^" -y-py-e^ P3~vhG~yi^&7>iyy- B^ &&y^x-r^P> S ZS^T- p-^^Zy^ y&-7i/h iy y?-y?s?y-y^£> - ppPP^^y~yf^yF~ y?d c? u< r~~ry?-^ %^ s^yy-^yv^P) y aP /yy% p^P /&/&> J^aZ -y-T^S^ y^v^&?eiyzZy?~V--w'£T P?PP^<l /f^y y- yr-r/^x v^fc^r- y~7<p& (Lcyc/y^y p^iy&r^Sd^ -y-&~& <T~cP > g-yrt^nSy^ ypX y^r— P>&zz& <?> PPP'pyPyO>&-<y&~ sfayb CPy2^ytyy pp-MY yj-ypp yZ^y- ^S»^5^-^ ^ ft/—-" /-* f -yZi? -— . /_^pftULAP UZ, S eSV-W V CLg^y-7f?y<zHr&~ -&ter7 f^7 &fKt&~ gy Cy c^ c^W^/ xr>'< (Lzpr&riFY yT~^^^~ ~7~yz^ uy®-^~£> ZLy>cy>y<r~ ZV®Tp- ^%c<~o"b^> By pU/c^^; ^t 4- p> L^&^S y-tfrn^) y-7^^: y^-cy+rytsT- /Z€~$cyi/&&^> <&p~ yi p&tnvum) ^F&ZZ * "JZgL l^?HZy&p kZ ^^hZsr&yty* &5, yriA^L^ Q^i^7 < ^P ^y&^&y M i%^y7-&^ (Lttrz&^f^ty -<y-7&^frJ?~~ $• Cepy uyyHZ yr7y&-^t^y==h 7~& /?-pp^yy_^:^> 5?&£piy y^rfrr^^ Z^ys-<^i^yt-zb CJychy^yrp ^^^z^^z^g" IOCD £pP^V~ yyZyfryP ^cyvr& ^>2^^L 3<Y (ZS^yny^y_ posryht^& Py&&py9-7Z> X~ rP-— / ) ^ ^ T ^ . <S<5><hjz> ry?? 3s~y4- GO Opinion filed June 18, 2015 kf4PW In The ClcUcntf) Court of Appeals No. 11-13-00308-CR LARRY WAYNE BENTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 91st District Court Eastland County, Texas Trial Court Cause No. 23111 MEMORANDUM OPINION The jury found Larry Wayne Benton guilty ofthe offense ofcontinuous sexual abuse ofa young child. The trial court assessed punishment and sentenced Appellant to life imprisonment. In his sole issue on appeal, Appellant asserts that the trial court abused its discretion when it overruled his motion to suppress evidence. We affirm. I. Background and Evidence at Suppression Hearing Jane Doe,1 Appellant's daughter, was eleven years old when she moved with her family and Appellant to Eastland. They eventually moved to Oregon. After they 'The indictment used the pseudonym "Jane Doe" to refer to the victim. moved to Oregon, Doe alleged that Appellant first had sexual intercourse with her in Eastland, Texas, when she was eleven years old and that the abuse occurred several times. Doe's mother called the police, and Officer Jeremy Sullivan responded to the call. Officer Sullivan testified that, when he arrived at Appellant's home, he met with Appellant. After an initial visit, Officer Sullivan determined that he could not arrest Appellant because he did not think that any crime had occurred in Oregon. Officer Sullivan asked Appellant whether he would cooperate and give him a statement. Officer Sullivan testified that, even though he had not yet "custodially detained" Appellant, he read Appellant his Miranda2 rights because he "just had a hunch that it was going to lead to something" and because "it's good to get it.. . out in the forefront." After he had informed Appellant of his Miranda rights, Officer Sullivan turned on the camera audio system in his vehicle, and Appellant acknowledged that Officer Sullivan had read him his Miranda rights and that he understood his rights.3 Appellant subsequently confessed that he had had sexual intercourse with Doe. Officer Sullivan testified that he asked Appellant whether he was willing to go to the police station to visit more; Appellant voluntarily agreed to go. Officer Sullivan offered Appellant a ride to the police station but explained that, although Appellant was not under arrest nor was he going to jail, police department policy was that all passengers in police vehicles must be handcuffed and placed in the backseat. AppellantacceptedOfficer Sullivan's offer. Officer Sullivanremoved the handcuffs from Appellant when they arrived at the police station. 2See Miranda v. Arizona, 384 U.S. 436 (1966). Officer Sullivan testified that.Oregon law does not require that the person's rights'be read on video. See OR. REV. STAT. ANN. § 133.400 (West, Westlaw through Ch. 275 of the 2015 Reg. Sess.); State v. Avila-Nava, 341 P.3d 714, 719-20 (Or, 2014); cf. TEX. CODE CRIM. PROC. Ann. art. 38.22 (West Supp. 2014). 3Although Appellant and Officer Sullivan cannot be seen in the video, theirvoices canbe heard. 2 After they arrived at the police station, Officer Sullivan took Appellant into an interview room, interviewed him a second time, and recorded that interview. Before he interviewed Appellant, Officer Sullivan told Appellant that he had the right to remain silent; that anything he said could be used against him in a court of law; that he had the right to an attorney; and that, if he could not afford an attorney, one would be appointed to represent him. Officer Sullivan confirmed that Appellant understood his rights. After Officer Sullivan concluded the second interview, he received information from a forensic interviewer who had interviewed Doe. The forensic interviewer said that Doe had been the victim of sexual abuse by Appellant when they were in a neighboring city. Officer Sullivan subsequently arrested Appellant based on that new information. Appellant filed a motion to suppress all statements made by him to police, which the trial court overruled. He later objected to their admission, and the trial court overruled those objections. II. Analysis Appellant contends that Officer Sullivan did not comply with Article 38.22 of the Texas Code of Criminal Procedure because Officer Sullivan did not record, on video, his review with Appellant of Appellant's rights under Miranda in the first interview and because Officer Sullivan did not tell Appellant in either interview that Appellant could terminate the interview at any time. Therefore, Appellant argues that the oral statements on the videos are inadmissible and that the trial court erred when it admitted the videos. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We defer to the trial court's findings of historical facts and review de novo the trial court's application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). Under Texas law, a statement made by an accused in a custodial interrogation generally cannot be used as evidence against him at his trial unless he was given 3 proper warnings under Article 38.22 and unless he knowingly, intelligently, and voluntarily waived the rights contained in the warnings. Crtm. Proc. art. 38.22. If the statement does not stem from custodial interrogation, the warnings are not required and the statement can be used against the accused at trial. Id. Additionally, Article 38.22 allows for the admission of oral statements obtained as a result of custodial interrogations in another state if the statements were obtained in compliance with the laws of that state. Id. § 8(1). Oregon requires that a peace officer advise a person, pursuant to Miranda, "that he or she has a right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution" and obtain a valid waiver before a custodial interrogation. Avila-Nava, 341 P.3d 719-20 (quoting State v. Vondehn, 236 P.3d 691, 699 (Or. 2010)); see also Miranda, 384 U.S. at 444-45. A valid waiver is determined from the totality of the circumstances and consists of a person understanding his rights and voluntarily talking with the interviewer. State v. Meade, 963 P.2d 656, 660 (Or. 1998). Oregon also requires that certain custodial interviews conducted by a peace officer in a law enforcement facility be electronically recorded. See Or. Rev. Stat. Ann. § 133.400. Appellant contends that he was in custody during both interviews and that Officer Sullivan did not comply with Article 38.22 because he did not record Appellant's rights in the first interview or inform Appellant at either interview that Appellant could terminate the interview at any time. If Appellant was not in custody, the statements are admissible. See Crtm. Proc. art. 38.22. If Appellant was in custody, the statements are admissible if Officer Sullivan complied with Oregon law to obtain the statements. See id. § $(1). , Officer Sullivan read Appellant his rights, according to Oregon law, at Appellant's house and at the police station and made sure that Appellant understood his rights. Appellant voluntarily spoke to Officer Sullivan and complied with his requests. Officer Sullivan electronically recorded the interview at the police station. 4 Officer Sullivan complied with Oregon law to obtain Appellant's statements; therefore, whether Appellant was in custody or not, the statements were admissible pursuant to Article 38.22, section 8(1). See Or. Rev. Stat. Ann. § 133.400; Avila- Nava, 341 P.3d at 719-20. Appellant has not challenged that Officer Sullivan failed to comply with Oregon law or with Miranda; he only challenges the correct application of Article 38.22. We hold that the trial court did not abuse its discretion when it admitted into evidence the videos that contained Appellant's statements. See Balentine, 71 S.W.3d at 768. We overrule Appellant's sole issue on appeal. III. This Court's Ruling We affirm the judgment of the trial court. MIKE WILLSON JUSTICE June 18, 2015 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J, and McCall.4 Bailey, J., not participating. 4Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. 5	{ "pile_set_name": "FreeLaw" }
527 F.2d 106 AUTOTRONIC SYSTEMS, INC., a Delaware Corporation, Plaintiff-Appellant,v.CITY OF COEUR d'ALENE, an Idaho Municipal Corporation,Defendant-Appellee. No. 74--1870. United States Court of Appeals,Ninth Circuit. Dec. 5, 1975. Donald W. Lojek and Eugene C. Thomas (argued), Moffat, Thomas Barrett & Blanton, Boise, Idaho, for plaintiff-appellant. William D. McFarland (argued), Coeur d'Alene, Idaho, Scott W. Reed (argued), Coeur d'Alene, Idaho, for defendant-appellee. OPINION Before DUNIWAY and GOODWIN, Circuit Judges, and BURNS,* District Judge. PER CURIAM: 1 This case challenges the constitutionality of an ordinance of the City of Coeur d'Alene, Idaho, on three grounds: a) due process; b) equal protection; and c) undue burden on interstate commerce. Coeur d'Alene's ordinance provides: 2 That no gasoline tanker having a tank capacity of more than one thousand five hundred (1,500) gallons shall be used in the delivery of gasoline in the Municipality to be sold at retail. 3 Plaintiff (Autotronic) sought but was denied relief in the District Court. Its jurisdiction was based on 28 U.S.C. § 13311; ours, upon 28 U.S.C. § 1291. 4 Autotronic operates a retail, self-service gas station called 'Fill-em-Fast' in Coeur d'Alene. Gasoline is normally delivered to Coeur d'Alene from Spokane, Washington--a distance of about 30 miles--by gasoline tanker trucks with capacities of approximately 8,500 gallons. Autotronic is forestalled by this ordinance from receiving deliveries directly from the Spokane wholesale distributors. The large tankers must unload their gasoline at bulk stations. Smaller tankers-- of 1,500 gallons--must then transport the gasoline from the bulk stations to plaintiff's and to other retail stations. This increases Autotronic's costs by about 1 cent per gallon, or $2,500 per month. 5 Autotronic contends that the ordinance increases rather than decreases the dangers to public safety. Its evidence in the trial court showed that the ordinance results in multiple trips and multiple handling (6 for 1) of the gasoline; the greatest danger of accident exists during the handling process; transfer to the above ground tanks by pressure at the bulk plants is more dangerous than transfer to underground tanks by gravity at service stations; larger tankers have more safety devices than smaller tankers and are more resistant to rupture than smaller tankers. 6 Autotronic's evidence also showed that its retail station is located in a safe place for unloading the larger tankers; that the tankers pass by the station on their way to and from the bulk plant; the larger tankers can, if they wish, enter and park at the station. The only thing they cannot do is to connect their hoses and unload gasoline into the retail station's underground tanks. Autotronic insists this result is so irrational as to deny due process. 7 In addition, Autotronic's evidence showed that the ordinance allowed the large carrier to enter and deliver their 8,500 gallon loads to bulk plants within the city, but not to retail stations. These classifications--among truck sizes and permitted delivery points--are said to be so lacking in rationality as to deny equal protection. 8 Coeur d'Alene's evidence, largely from the City Engineer and the City Fire Chief, was that the ordinance promotes rather than retards public safety. Not all retail stations are in locations that can handle easy ingress and egress of large tankers. In the event of a large spill the bulk plants are generally in locations where the danger to people from the spilled gasoline or resulting fire is less than at retail stations. The fire department of Coeur d'Alene is small. It would be hard-pressed to handle a fire from a 1,500 gallon tanker, but overwhelmed by a fire from an 8,500 gallon spill. The Fire Chief had had experience handling a fire of about 1,200 gallons of gasoline at a bulk plant. He thought the ordinance was a protection against a larger fire within Coeur d'Alene. In addition, the sewer system is such that a witness for Coeur d'Alene thought a large gasoline spill within the city presented a fire danger to a near-by marina and pollution dangers to nearby Coeur d'Alene Lake. Based on this evidence, the District Court denied relief to Autotronic. 9 The standard for evaluating ordinances claimed to be violative of due process or equal protection is whether a rational basis exists for the police power exercised or classification established by the ordinance. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). 10 We have before us, as did the District Court, two opposing theories. It is not our function to decide which view is wiser; our role is at an end once we can say that the view chosen by the City council is not irrational. North Dakota St. Bd. of Pharm. v. Snyder's Drug Stores, Inc., 414 U.S. 156, 164--167, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Williamson v. Lee, supra, 348 U.S. at 488, 75 S.Ct. 461; Ferguson v. Skrupa, supra, 372 U.S. at 729--732, 83 S.Ct. 1028. We do not sit as a 'Super City Council' any more than we do as a 'Super Zoning Board' (Constr. Indus. Ass'n of Sonoma County v. City of Petaluma, 522 F.2d 897, 906, 9th Cir. 1975), or a 'Super-legislature' (Ferguson v. Skrupa, supra, 372 U.S. at 731, 83 S.Ct. 1028). 11 Although six separate state appellate courts have refused to uphold similar ordinances,2 we think the evidence before the trial judge was sufficient to enable him to find a rational basis for the ordinance. Leathers v. City of Burns, 251 Or. 206, 444 P.2d 1010 (1968). The trial judge found that the City Council reasonably weighed competing risks of increased exposure to accidents from multiple trips of smaller tankers against the dangers of a larger gasoline spill within the city. The trial judge had sufficient evidence to find that the City Council was reasonable in concluding that a larger fire could be handled more safely at a bulk plant than at a retail station. This does not mean Autotronic's witnesses are without credibility. As was said by Justice Lusk in Leathers v. City of Burns, supra at 219, 444 P.2d at 1016: 12 The opinions of the eminent experts who testified that Ordinance No. 350 increases, rather than reduces, the danger of gasoline fires, are assuredly entitled to respectful consideration. The facts upon which they base their opinions are not in dispute and their conclusions are reasonable, but the question is whether the City Council of Burns could reasonably have reached a different conclusion. 13 Although it may have been wiser on Coeur d'Alene's part to have reached the contrary conclusion, we cannot say that the City Council acted irrationally in the exercise of its police power. We affirm the trial court's finding that the ordinance does not violate the Due Process or Equal Protection Clauses of the United States Constitution. 14 We further affirm the trial court's finding that the ordinance does not place an undue burden on interstate commerce. Although there is some increase in price passed on to the interstate traveler, and the interstate tankers must drive past the retail station to the bulk plant, the burden is not so great that it outweighs any safety advantage. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959). * The Honorable James M. Burns, U.S. District Judge for the District of Oregon, sitting by designation 1 Plaintiff has met the amount in controversy requirement by showing that the cost of compliance with the City's ordinance during the period of litigation would exceed $10,000. Buck v. Gallagher, 307 U.S. 95, 59 S.Ct. 740, 83 L.Ed. 1128 (1939); Clark v. Paul Gray, Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001 (1939). No allegation of lost profits is required. Buck v. Gallagher, supra 2 In re Martin, 88 Nev. 666, 504 P.2d 14 (1972); Humble & Refining Co. v. City of Georgetown, 428 S.W.2d 405 (Tex.Civ.App.1968); City of Colorado Springs v. Grueskin, 161 Colo. 281, 422 P.2d 384 (1966); Clark Oil & Refining Corp. v. City of Tomah, 30 Wis.2d 547, 141 N.W.2d 299 (1966); Ex parte Rodgers, 371 S.W.2d 570 (Tex.Cr.App.1963); McCoy v. Town of York, 193 S.C. 390, 8 S.E.2d 905 (1940) Federal jurisdictions, other than the case before this court, have not considered tanker limitations, although one trial court refused to uphold limitations on underground tanks. Standard Oil Co. v. City of Gadsen, 263 F.Supp. 502 (N.D.Ala.1967).	{ "pile_set_name": "FreeLaw" }
Order entered August 8, 2013 In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00453-CV PRISCILLA BOUIE, Appellant V. KIRKLAND’S STORES, INCORPORATED, Appellee On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-00666-2011 ORDER We received appellant’s principal brief on February 4, 2013. After we gave her notice that the brief was defective in several respects, appellant filed an amended brief on February 21. Appellee then filed its brief on March 1. Appellant sought an extension of time to file her reply brief, and we extended her deadline to April 21. On April 22, she filed another motion for extension of time, seeking a ninety-day extension of time to file “Petitioner's Brief on the Merits” on or before July 22. We construe this motion as a motion for extension of time to file a reply brief. Appellant did not file a reply brief within the ninety-day time period she requested in her motion. Accordingly, appellant’s April 22, 2013 Motion for Extension of Time to File Petitioner’s Brief on the Merits is DENIED. /s/ KERRY P. FITZGERALD JUSTICE	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 8-15-2003 Awolesi v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 02-2435P Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Awolesi v. Atty Gen USA" (2003). 2003 Decisions. Paper 290. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/290 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Filed August 15, 2003 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-2435 JOSEPH AWOLESI and EBENEZER AWOLESI, Petitioners v. JOHN ASHCROFT, Attorney General of the United States, Respondent On Petition for Review of an Order of the Board of Immigration Appeals (INS Nos. A73-034-576, A73-034-577) Argued January 21, 2003 Before: BECKER, Chief Judge,* NYGAARD and AMBRO, Circuit Judges. (Filed: August 15, 2003) JEFFREY A. HELLER (ARGUED) 8 Hampton Street Cranford, NJ 07016 Counsel for Petitioners * Judge Becker completed his term as Chief Judge on May 4, 2003. 2 ROBERT D. MCCALLUM, JR. Assistant Attorney General, Civil Division CARL H. MCINTYRE, JR. Senior Litigation Counsel DAVID E. DAUENHEIMER (ARGUED) Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Counsel for Respondent OPINION OF THE COURT BECKER, Circuit Judge. This is a petition for review of an extremely terse (four sentence) order by the Board of Immigration Appeals (“BIA”), reversing the decision of the Immigration Judge (“IJ”) granting the applications for asylum of petitioners, Joseph Awolesi (“Awolesi”), and his son Ebenezer (whose claim is derivative of Joseph’s). Awolesi testified before the IJ that his brother, Matthew Awolesi (“Matthew”), a member of the pro-democracy party in Nigeria and an elected member of the local community council, was the target of ambush and assassination attempts by the security forces of the ruling party in Nigeria and is now in hiding. Awolesi, who used the proceeds from his successful pharmaceutical company in Nigeria to fund Matthew’s political career, argues that if returned to Nigeria, he would be persecuted by the government, which believes that he is a member of the pro-democracy party (based on Matthew’s association with the party). On the basis of the evidence supporting these claims, the IJ concluded that Awolesi and Ebenezer had shown a well-founded fear of persecution on account of imputed political opinion. While we give deference to the decisions of the BIA, and must affirm its findings unless the evidence “compels” a 3 contrary conclusion, we cannot give meaningful review to a decision in which the BIA does not explain how it came to its conclusion. This is not a case in which the BIA affirmed the decision of the IJ without explanation, in which case we might scour the record for supporting evidence. Here, instead, the BIA reversed the decision of the IJ, with only the opaque explanation that “the evidence is insufficient” and “the arguments made by the [INS] on appeal . . . are persua[sive].” As a result, we cannot tell whether the BIA was making a legal decision that Awolesi was statutorily ineligible for asylum or whether it found Awolesi’s story incredible. In these circumstances, we conclude that we cannot perform meaningful review of the BIA’s order, hence we will vacate the order of deportation and remand for further consideration.1 I. Awolesi and Ebenezer are citizens and natives of Nigeria.2 They arrived in the United States in February of 1993 carrying valid “visitor for pleasure” visas which authorized them to remain until August of 1993. In October of 1993, Awolesi applied for asylum and withholding of deportation. In the original application, Awolesi claimed that he was subject to persecution by the Muslim fundamentalist police on account of his Christian religion. Awolesi’s application for asylum was denied by the INS and he and Ebenezer 1. We note that the recently enacted Streamlining Regulations, 8 C.F.R. § 3.1(a)(7), which allow the BIA to affirm summarily the decision of the IJ without adopting its reasoning, are not applicable to this case. 2. We will use the singular, Awolesi, to refer to the claims of both petitioners since Ebenezer’s claims are essentially derivative of his father’s. Awolesi fears that the Nigerian government may kidnap Ebenezer as a means of coercion. This concern is supported by a 1996 State Department Report which states that “[t]he [Nigerian] regime repeatedly engaged in arbitrary arrest and detention. . . . Police also commonly place relatives and friends of wanted suspects in detention without criminal charge in an effort to induce suspects to surrender to arrest.” Awolesi’s original application for asylum included Ebenezer; in November of 1996, Ebenezer filed a separate application after turning 21 years old. 4 were issued orders to show cause charging them as deportable for having overstayed their visitor visas. Awolesi appeared before the IJ and claimed that he would be persecuted if returned to Nigeria because the government believed that he was a member of the pro- democracy party. Awolesi asserted that he was the owner of a successful pharmaceutical company in Nigeria and that the business had made approximately $90,000 a year from 1988 to 1991 and approximately $60,000 a year after that. Awolesi claimed that he used some of the proceeds from that business to support his brother Matthew’s political career. Awolesi claims that Matthew had paid to send Awolesi to college to get a bachelor’s degree and Awolesi wanted to return the favor. Awolesi represented that Matthew worked for the Nigerian government until 1984, when he was fired from his position for making outspoken political statements about the military regime that ran the country. Awolesi contends that Matthew was a member of the Social Democratic Party, a pro-democracy party in Nigeria, and, with Awolesi’s financial backing, was elected to the position of “chair person” of one of the local community councils, governing an area with a population of approximately 200,000 people. Awolesi stated that he also joined the Social Democratic Party, but that he was not as politically active as his brother. Awolesi claims that his brother, because of his political activity, became a target of the ruling party of Nigeria. He maintains that Matthew was ambushed in his home in 1991. Later, in 1992, Awolesi asserts, shots were fired at Matthew’s official car and one of his aides was seriously injured.3 Awolesi contends that Matthew subsequently went into hiding for fear of persecution by the Nigerian government. Awolesi also represents that he was threatened by members of the military and that he was told by a “friendly government agent” that the military regime had discussed killing him. 3. Awolesi provided a copy of an article from a local newspaper documenting this incident. As the INS notes, however, this article suggests that the attack was not politically motivated but was rather an attempt to steal the vehicle. 5 Awolesi states that he fled the country in 1993 because he was worried about the outcome of the upcoming elections: he feared that the government would lash out against individuals that were believed to support the pro- democracy party.4 Awolesi took his then teenage son Ebenezer with him, but left behind his wife and other children (none of whom have been harmed in his absence). Awolesi believes that he may be on a government “black list” and would be arrested and tortured or killed if he is returned to Nigeria. The IJ conducted a full hearing on the merits, at the end of which he granted asylum to Awolesi and his son based on a showing of a well-founded fear of persecution on account of imputed political opinion.5 In support of the grant of asylum, the IJ reasoned as follows: The current report on human rights practices relating to Nigeria clearly indicates that there are substantial problems that exist in Nigeria at the present time of a political nature. In the submissions made by the Respondent, he has clearly presented documentation to show that his brother was an individual who was politically involved in his country, and clearly that his brother could have been and might have been a target of political activist[s] who are against his political opinions in his country. It is also clear, that often in countries like Nigeria, one of the means of attacking the political leaders is to attack certain members of their families, and clearly, financial supporters of such political leaders, especially if they are family members, would be persons who could be subject to political and physical harm. One of the points raised by the Government Trial Attorney is important to consider in this case, and that is, the rest of the Respondent’s family and the person who he refers to as his brother, who is a political activist, all are still in Nigeria and apparently no harm 4. The pro-democracy forces won the 1993 election, but a coup d’etat followed, returning to power the individuals who had lost the election. 5. The IJ rejected the claim of religious persecution. 6 has come to them. In regard to the brother, there can be possibly a number of explanation[s] as to that. One, that in hiding he has been successful in eluding the government authorities. A second possibility is that even if he has been unsuccessful and the authorities do know where he is . . . it may very well be that because his brother is a prominent individual, that the authorities chose not to do anything to his brother until such time that they believe his brother may pose an immediate threat to them. On the other hand, what about individuals who occupy less important positions in Nigerian society, such as a brother like the Respondent, who is not politically active. The action by the government against such individuals would be little moment to the general population. . . . any harm to such persons would cause minimal disruption in the society. . . . In looking at the Country Reports on Human Rights Practices relating to Nigeria [for 1997], it is important to note that even the State Department recognizes the difficulties existing in Nigeria at this time. . . . “that the government continued to enforce its arbitrary authority throughout the federal security system. The military, the security forces services and the national police have through decree, decreed blocking action by the opposition in the court. All branches of these security forces committed serious human rights abuses.” The INS appealed the decision of the IJ to the BIA.6 The 6. Awolesi contends that the BIA violated its own regulations by accepting the INS’s appeal. While the INS submitted its brief to the BIA by the required date, February 2, 1998, it did not serve Awolesi’s counsel with a copy of the brief by this date (Awolesi provides a copy of the postmark which indicates that service was untimely). The INS nonetheless attested to the BIA that it had served opposing counsel by February 2, as the BIA requires that briefs be filed with proof of service on the other party. Awolesi contends that this amounted to fraud on the part of the INS and that the BIA should not have accepted the appeal because it was improperly filed. The INS responds that the BIA has discretion to accept such appeals and that while this discretion is limited 7 BIA reversed the decision of the IJ, with the following terse explanation: The appeal is sustained. We have considered the arguments made by the [INS] on appeal and are persuaded. The evidence is insufficient to show that the respondents were persecuted on account of an imputed political opinion or that they would now face persecution because of a protected ground. Accordingly, the appeal is sustained. We have jurisdiction pursuant to former INA § 106, 8 U.S.C. § 1105(a). We review factual determinations of the BIA under the substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (“Under the substantial evidence standard, the BIA’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.”). We review the decision of the BIA, not that of the IJ. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). II. Awolesi contends that we should vacate the BIA’s decision because its four-sentence order “is so conclusory and deficient that it leaves nothing for this court to review.”7 Awolesi finds support for this argument in our opinion in by due process considerations, they are pertinent only if the applicant has shown that he was prejudiced, which Awolesi has not. We agree. While it does not affect the outcome, it appears that the INS acted in an unprofessional manner by making a false representation that it had served a copy of the brief on a certain day, and we reprove it for doing so. That said, the BIA did not err by accepting the brief because the BIA’s own rules give it discretion to accept such briefs. At all events, it does not appear that Awolesi has alleged that the BIA’s acceptance of the brief amounted to a due process violation since he has not demonstrated that he was prejudiced by the misrepresentation. 7. Awolesi also asserts that the BIA violated his due process rights with its terse opinion. However, “the question for due process purposes . . . is simply whether the Board made an individualized determination.” Abdulai, 239 F.3d at 550. We are satisfied that the BIA considered Awolesi’s individual case. 8 Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001). Abdulai involved a decision by the BIA, affirming the IJ, which had denied the applicant’s application for asylum and withholding of deportation. The BIA’s decision contained only the following analysis: We acknowledge that the respondent has submitted numerous articles and reports regarding general country conditions in Nigeria. However, we note the conspicuous lack of documentary evidence corroborating the specifics of the respondent’s testimony. Id. at 547. We concluded that the BIA had not sufficiently explained why it affirmed the decision of the IJ, noting: What the BIA never explains, however, is what particular aspects of Abdulai’s [the applicant’s] testimony it would have been reasonable to expect him to have corroborated. Without knowing that, it is impossible for us to review: (1) whether it was reasonable to expect Abdulai to corroborate such information; (2) whether Abdulai provided the requisite corroboration; or (3) whether Abdulai adequately explained his inability to do so. Id. at 554 (emphasis in original). Earlier, in Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984), we determined that we could not give meaningful review to the decision of the BIA affirming the IJ where the BIA did not explain why it discredited the sworn affidavit of the applicant, noting only that he had “not submitted substantial, probative evidence to corroborate his fear.” We wrote: We recognize that there is a possibility that the [IJ] or the Board choose to discredit the [applicant’s] affidavit for reasons that are within their expertise. However, if they do not articulate such reasons, we are unable to discharge our statutory obligation of review. To determine whether the administrative action was arbitrary, the courts must be apprised why evidence, relevant and persuasive on its face, was discredited. 9 We must also review the decisions of administrative agencies to ascertain whether the proceedings were conducted with regularity, including whether the agency considered the relevant evidence. Id. at 837. See also Tipu v. INS, 20 F.3d 580, 586 (3d Cir. 1994) (“[T]he Board failed to consider one of the factors in Tipu’s favor, a practice which in Sotto v. INS resulted in a remand for reconsideration.”); Bastidas v. INS, 609 F.2d 101, 105 (3d Cir. 1979) (holding that the decision of the BIA “will not be affirmed by this court unless the reasons for such a finding are made clear”). Likewise, in the case at bar, we are given no indication why the BIA denied Awolesi’s petition and we cannot determine whether it acted arbitrarily. Indeed, in Abdulai and Sotto, the BIA at least stated that it discredited the applicants’ accounts without explaining why or what aspects of the accounts it found unbelievable. Here, the BIA has not even told us that it discredited Awolesi’s testimony; we do not know whether the BIA was making a legal determination that Awolesi could not qualify under the statute, even assuming his story was true, or whether it found that Awolesi’s testimony was inconsistent. We do not know what is meant by the BIA’s statement that “[t]he evidence is insufficient to show that the respondents were persecuted on account of an imputed political opinion.” This could indicate that the evidence was legally insufficient or that the BIA found Awolesi’s testimony incredible. In order for us to be able to give meaningful review to the BIA’s decision, we must have some insight into its reasoning. For example, the BIA might explain that it did not believe Awolesi would be tortured or killed if returned to Nigeria because his wife and other children have not been harmed in his absence. Or that it did not find Awolesi’s account credible because his initial application for asylum listed only his claim that he feared persecution if returned to Nigeria on account of his religion. The BIA would then have to explain why it found the IJ’s reliance on the Country Reports and the news article documenting the attack on Matthew Awolesi’s car unpersuasive. The BIA’s decision may have been supported by substantial evidence, and there may not be evidence to compel the opposite 10 conclusion. However, we simply do not know what evidence the BIA used to come to its decision. Most importantly, we are particularly concerned about being able to give meaningful review to the BIA’s decision where the BIA reverses the IJ without explanation. Abdulai and Sotto involved decisions by the BIA affirming the IJ without explaining why the applicants’ accounts were unbelievable or what corroborative evidence they could have offered. This Court, sitting in banc, has before it (sub judice) the case of Dia v. Ashcroft, No. 02-2460 (3d Cir. argued in banc May 28, 2003), in which the issue is whether the recently promulgated Streamlining Regulations, 8 C.F.R. § 3.1(a)(7), allowing a single member of the BIA to affirm the result of the IJ’s decision and order without adopting its reasoning, violate fundamental principles of administrative law or due process. If we uphold the Streamlining Regulations, BIA decisions like those at issue in Abdulai and Sotto would likely be affirmed so long as the BIA acted pursuant to the Streamlining Regulations.8 However, the Attorney General has explained that the Streamlining Regulations do not apply to summary reversals by the BIA, noting, “A reversal or remand will necessarily require some explanation, while an affirmance without opinion leaves the decision below as the final agency decision.” Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135, 56,140 (October 18, 1999) (to be codified at 8 C.F.R. pt. 3). Thus, our holdings in Abdulai and Sotto (as well as a number of other opinions applying those opinions), that the BIA must explain why it reversed the decision of the IJ, will continue to be good law in cases occurring after the promulgation of the Streamlining Regulations, regardless of our decision in Dia. III. For the foregoing reasons, we will grant the petition for review, set aside the BIA’s final decision and order of 8. The Streamlining Regulations were promulgated on October 18, 1999. 11 deportation, and remand for further consideration, consistent with this opinion.9 A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit 9. Awolesi contends that the facts are so convincing that we should reverse outright the decision of the BIA and grant his petition for asylum. However, the Supreme Court held in INS v. Ventura, 537 U.S. 12 (2002), that courts of appeals cannot decide de novo issues that the BIA failed to consider.	{ "pile_set_name": "FreeLaw" }
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-4280 _____________________________ JOSE GOMEZ-CORTES, M.D., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee. _____________________________ On appeal from the Agency for Health Care Administration. Justin M. Senior, Secretary. August 24, 2018 PER CURIAM. Appellant contends that the Agency for Health Care Administration erred when it denied his motion to vacate without affording him an evidentiary hearing to resolve the factual question of whether he received sufficient notice of AHCA’s final orders. We agree. See Reich v. Dep’t of Health, 868 So. 2d 1275, 1276 (Fla. 1st DCA 2004). REVERSED and REMANDED. WOLF, JAY, and WINSOR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Sean M. Ellsworth of Ellsworth Law Firm, P.A., Miami Beach, for Appellant. Nicholas A. Merlin, Senior Attorney, Agency for Health Care Administration, Tallahassee, for Appellee. 2	{ "pile_set_name": "FreeLaw" }
37 N.J. Super. 451 (1955) 117 A.2d 624 WILLIAM BURKE, ELEANOR BURKE AND WILLIAM BURKE, JR., AN INFANT, BY WILLIAM BURKE, HIS GUARDIAN AD LITEM, PLAINTIFFS-APPELLANTS, v. AUTO MART, INC., A CORPORATION OF NEW JERSEY, AND ARTHUR J. MOORE, DEFENDANTS-RESPONDENTS. Superior Court of New Jersey, Appellate Division. Argued October 3, 1955. Decided October 27, 1955. 452 Before Judges GOLDMANN, FREUND and CONFORD. Mr. Robert C. Gruhin argued the cause for plaintiffs-appellants. Mr. John C. Stockel argued the cause for defendant-respondent Auto Mart, Inc. 453 The opinion of the court was delivered by CONFORD, J.A.D. Plaintiffs were the driver of and passengers in a motor car which was involved in a collision on August 23, 1952 with an automobile then operated by the defendant Moore, sold to him by the defendant Auto Mart, Inc. ("Auto Mart" hereinafter) on August 9, 1952. The action is brought to recover for damages to the Burke car and for personal injuries to the occupants. Moore did not answer or defend at the trial. Auto Mart, a used-car dealer in Elizabeth, defended primarily on the ground that it had sold, delivered and received payment for the car prior to the accident and that it had nothing to do with Moore or his operation of the car at the time, whether as principal or in any other connection. But the vehicle bore Auto Mart's dealer registration plates, these having been loaned to Moore to permit his taking delivery on August 9 pending clearance of the title papers through the New York and New Jersey motor vehicle agency offices. Auto Mart had purchased the vehicle, a used car, from a New York dealer August 2, 1952. The New Jersey statutory certificate of ownership of the car did not issue to Auto Mart until September 18, 1952 and it executed the assignment thereof to Moore the next day. Plaintiffs' contention at the trial was that title to the car was in Auto Mart when the accident occurred and that Moore's operation of it under the circumstances raised an issue for the jury as to whether the presumption of agency and operation on Auto Mart's business, consequent upon the condition of the title and the use of the dealer plates, had been successfully met by that defendant. The trial judge granted a motion for dismissal on its behalf. He stated that he found legal title in Auto Mart and, in effect, equitable title in Moore as of the date of the accident and that the presumption that Moore was the agent of Auto Mart and acting on its business had been rebutted by the proofs submitted by the latter. The jury found against Moore and in favor of the Burkes in various amounts. Plaintiffs' appeal from the order of dismissal as to Auto Mart was frankly based at the argument primarily on the 454 theory, in substance, that the law should impute a vicarious principal-agent relationship to Auto Mart and Moore in this situation as a matter of public policy, in order to provide an additional sanction against the conceded violations in this transaction of the salutary provisions of our statutes regulating the registration, use and transfer of title to motor vehicles. Indubitably the loan of the dealer plates to Moore to expedite delivery was in violation of the statute. Such plates may be placed only on a vehicle owned by the dealer and a violation is punishable by a fine not to exceed $100. N.J.S.A. 39:3-18. Upon transfer of ownership the registration of a motor vehicle expires and the seller is required to remove the registration plates and notify the commissioner of the name and address of the purchaser. N.J.S.A. 39:3-30. Every resident of the State whose automobile is driven in this State is required to register it before it is driven on the public highways. N.J.S.A. 39:3-4. In every sale of a used car the seller is to execute and deliver to the purchaser an assignment of the certificate of ownership, N.J.S.A. 39:10-9, and the purchaser, within ten days after purchase, must submit evidence of purchase to the director of the Division of Motor Vehicles. N.J.S.A. 39:10-11. All of these penal requirements were violated in the sale of this car to Moore. N.J.S.A. 39:10-5 provides: "No person shall sell or purchase any motor vehicle in this state, except in the manner and subject to the conditions provided in this chapter." What are the consequences of these violations in terms of liability of Auto Mart to plaintiffs for Moore's negligence? Efforts to hold violators of motor vehicle regulatory statutes for damages for injuries consequent upon the operation of automobiles or to preclude their right of recovery for damages caused by the negligence of others have almost always been rebuffed where no causal relation was discernible between violation and accident. For example, it is the general rule that one is not precluded from recovery by mere 455 reason of operation of a car without a license or of a deficiency in the registration of the vehicle. Annotation, 163 A.L.R. 1375, and earlier annotations cited therein. By the great weight of authority automobile registration statutes create only a public duty and do not render an unlicensed driver or the driver of an unregistered vehicle liable to or without recourse against those with whom he collides if he is otherwise exercising proper care. Prosser on Torts (1941) § 39, pp. 266, 267. Generally and in New Jersey such results are posited on absence of proximate cause between the violation of the statute and the accident. 5 Am. Jur., Automobiles, § 144, p. 588; Muller v. West Jersey & Seashore R.R. Co., 99 N.J.L. 186, 188, 189 (E. & A. 1923); Ross v. Pennsylvania R.R. Co., 106 N.J.L. 536 (E. & A. 1930); Renner v. Martin, 116 N.J.L. 240 (E. & A. 1936). Compare the same approach in the analogous situation of violation of statutory regulations concerning the size of a vehicle. See Formichella v. Layton, 25 N.J. Super. 1, 3 (App. Div. 1953). Prosser points out that the more pertinent rationale is the absence of legislative intent to protect against negligence, but, rather, to subserve entirely different objects (op. cit. supra, pp. 267, 268), as, e.g., preventing theft and traffic in stolen automobiles. See Merchants' Securities Corp. v. Lane, 106 N.J.L. 576, 578 (E. & A. 1930). The limitation of scope of liability implied in such a view has been obliquely criticized. Effect of Penal Statutes on Civil Liability, 32 Columbia L. Rev. 712, 716, 717 (1935). See also, in reference to civil liability arising from operation of an automobile in violation of regulatory statutes, 1 Blashfield, Cyclopedia of Automobile Law and Practice (1948), §§ 591-604, pp. 422-457; 2 Stevenson, Negligence in the Atlantic States (1954), § 679, pp. 1030, 1031. Massachusetts alone has developed the philosophy that an unregistered or improperly registered motor vehicle is a nuisance and its operator a trespasser on the highway with the corollary that anyone responsible for its presence on the highway is liable for any direct injury resulting from 456 its use, regardless of its foreseeability or the absence of negligence in any other sense. Koonovsky v. Quellette, 226 Mass. 474, 116 N.E. 243 (Sup. Jud. Ct. 1917); DiFranco v. West Boston Gas Co., 262 Mass. 387, 160 N.E. 326 (Sup. Jud. Ct. 1928). The thus indicated failure of the predominant authorities to equate a statutory motor vehicle violation with negligence proximately causing an injury adumbrates a like conclusion where such a violation is assigned, as here, as a basis for implication of vicarious agency for another in the negligent operator of an automobile (infra). Plaintiffs assert that perforce the statute title remained in Auto Mart when the accident occurred, that a presumption consequently arose that Moore was operating the vehicle in its business at the time and that the presumption finds factual substantiation in the circumstance that the use by Moore of Auto Mart's dealer plates was for its benefit by way of expedition of the sale and, therefore, in effect, constituted his operation a phase of the conduct of its business. By this kind of ratiocination it is argued plaintiffs were entitled to have the jury determine whether Moore was not in fact Auto Mart's agent at the time when his negligence caused their injuries. They make no pretense that Moore was working for or in any other realistic sense in the service of Auto Mart on the day of the accident. For purposes of analysis of the position taken it may be conceded that the circumstances shown, particularly the use of the license plates, warranted application of the initial presumption invoked. Crowell v. Padolsky, 98 N.J.L. 552 (E. & A. 1923). It is by no means clear, however, that a sale of a car is so void as to preclude passage of equitable title merely because statutory title papers have not been delivered at the moment the bargain is struck or the car is delivered, there being an intent to deliver them. Ethridge v. Allied Equipment & Supply Co., 26 N.J. Super. 586 (App. Div. 1953); Gaub v. Mosher, 3 N.J. Misc. 605 (Ch. 1925); cf. Shinn v. Cohen, 99 N.J. Eq. 418 (E. & A. 1926) and see 9 Rutgers L. Rev. 235 (1954). Nevertheless, 457 giving the plaintiffs the benefit of the presumption of operation of the car in the business of Auto Mart and admeasuring the factual evidence here presented in opposition to the presumption against conventional concepts of the law of agency, plaintiffs are plainly seen to have had no case for the court to present to the jury as against Auto Mart. Tischler v. Steinholtz, 99 N.J.L. 149 (E. & A. 1923); Nicosia v. Marangi, 13 N.J. Super. 550, 554 (App. Div. 1951); cf. In re Weeks' Estate, 29 N.J. Super. 533, 537 (App. Div. 1954). There was direct, uncontradicted and irrefutable proof that Auto Mart had nothing to do with Moore nor he with it at any time after he drove the car off its lot on August 9, except for the formal delivery and acceptance of the assignment of the certificate of title to the car on September 19. It was held in Patterson v. Surpless, 107 N.J.L. 305 (E. & A. 1930), that even where an owner of an automobile permits an unlicensed person to operate it, but solely for the purposes of that person, the owner is not responsible for the consequences of the operator's negligent operation, in the absence of evidence of incompetency on the part of the driver. The court rejected the contention that the relationship of master and servant, otherwise baseless, could be erected on the permission for use of the car by an unlicensed person. And in Hayes v. Brogan Cadillac-LaSalle Co., 10 N.J. Misc. 11 (Sup. Ct. 1931), where a used car dealer had permitted a prospective purchaser to test a car bearing the dealer's license plates over a week-end, during which an accident took place, the dealer was held not liable to the victim of the purchaser's negligence. The court said the facts did not warrant imputing the operation of the car to the dealer and that (page 13): "While the presumption of law was that Brogan Cadillac-LaSalle Company, as owner of the car, was in possession and operating it, the evidence conclusively shows that this presumption was overcome by the uncontradicted proofs to the contrary." The Hayes case, which applies a rule of general acceptance, Annotation, 31 A.L.R.2d 1445, would seem an a fortiori 458 authority in relation to the cause sub judice, as there was in that case no transfer of proprietorship in the vehicle in any degree when the accident happened. The weight of authority elsewhere accords with the bent of the New Jersey cases cited. These cases present closely apposite situations: Buchholz v. Breitbach, 193 Wis. 224, 213 N.W. 329, 331 (Sup. Ct. 1927); State ex rel. Steinbruegge v. Hostetter, 342 Mo. 341, 115 S.W.2d 802 (Sup. Ct. 1938); Waters v. Hays, 118 S.W.2d 39 (Mo. App., St. L. Ct. of App. 1938) reversed on another point in State ex rel. Waters v. Hostetter, 344 Mo. 443, 126 S.W.2d 1164 (Sup Ct. 1939); Bradley v. Chickasha Cotton Oil Co., 184 Okl. 51, 84 P.2d 629 (Sup. Ct. 1938); Jenkins v. Spitler, 120 W. Va. 514, 199 S.E. 368 (Sup. Ct. 1938); Fredericks v. Birkett L. Williams Co., 68 Ohio App. 217, 40 N.E.2d 162 (Ct. App. 1940); Worsham Buick Co. v. Isaacs, 121 Tex. 587, 51 S.W.2d 277, 86 A.L.R. 232 (Sup. Ct. 1932); Annotation, 86 A.L.R. 236; see Endres v. Mara-Rickenbacker Co., 243 Mich. 5, 219 N.W. 719, 720 (Sup. Ct. 1928). The Massachusetts courts, by logical extension of the nuisance-trespasser doctrine (see supra), hold-in the dealer who unlawfully lends his license plates to another. McDonald v. Dundon, 242 Mass. 229, 136 N.E. 264, 26 A.L.R. 1243 (Sup. Jud. Ct. 1922). Where the dealer knows that the car is unfit or the driver incompetent he becomes liable, agency then being irrelevant. Toole v. Morris-Webb Motor Co., 180 So. 431 (Ct. App. La. 1938). See Patterson v. Surpless, supra (107 N.J.L., at p. 306); Jenkins v. Spitler, supra (199 S.E., at p. 371); Wheat v. Alderson, 234 Mo. App. 346, 130 S.W.2d 650, 652 (Ct. App. 1939). The approach on the basis that the accident could not have happened if Auto Mart had not illegally loaned its license plates to Moore indicates no more than that the loan was a condition of the accident, not that it was its proximate cause. Moore's negligence was an exculpating superseding cause, Restatement of Torts, § 440; Worsham Buick Co. v. Isaacs, supra (51 S.W.2d at page 280). Nor was any hazard germane to the producing cause of 459 plaintiffs' injuries within the intended preventive scope of the statutes violated. See Prosser, op. cit., supra (page 269). Plaintiffs' citation of Trautman v. Higbie, 10 N.J. 239 (Sup. Ct. 1952), does not help them. The decision merely applies a well-defined expansion of the doctrine of agency in a special field. Restatement of Torts, § 428; Venuto v. Robinson, 118 F.2d 679 (3rd Cir. 1941). The New York cases cited are irrelevant in regard to agency as the statute of that state imposes liability upon an owner for the negligent use of a car with his permission regardless of agency. Switzer v. Aldrich, 307 N.Y. 56, 120 N.E.2d 159 (1954). The effect of Peters v. Casualty Co. of America, 101 Wash. 208, 172 P. 220 (Sup. Ct. 1918), which supports plaintiffs' position, was erased by later legislation. In our view plaintiffs' only substantial comfort derives from the Pennsylvania decision of Morgan v. Heinkel, 329 Pa. 360, 197 A. 920, 921 (Sup. Ct. 1938). There, in a factual setting somewhat resembling the present one, the court sustained the submission to a jury of the question of a dealer's liability for his purchaser's negligence while still using his plates, on the slender thread of the possibility that the purchaser was testing the car and was in that sense an employee of the seller. With all deference, our reading of the opinion fails to disclose any factual warrant for the holding. Moreover, there is no suggestion here that the car was being tested when Moore had his accident. In any event, both the result and the flavor of the Morgan case are in marked discordance with the decision of our own former Supreme Court in Hayes v. Brogan Cadillac-LaSalle Co., supra. It has for us no persuasiveness on the merits of the problem under analysis. It thus appears that the overwhelming weight of authority, direct and analogous, is against the position urged by the plaintiffs. We have referred at the outset to their appeal to public policy. We are asked to project the legislative policy underlying the motor vehicle registration laws across the lines now containing the degree of common-law liability of the seller of a motor vehicle to those who suffer *460 at the hands of a negligent purchaser. It is generally of dubious validity to imply sanctions beyond those expressly fixed by the Legislature, in undertaking judicially to enforce its declared policy in a particular field. See Mayor and Council of Alpine Borough v. Brewster, 7 N.J. 42, 50 (1951). It has been said that "The common-law technique is based on a conception of law as experience developed by reason and reason tested and developed by experience," Pound, What of Stare Decisis? 10 Fordham L. Rev. 1, 5 (1941); Cardozo, The Nature of the Judicial Process (1921) p. 150. Cf. Evans v. Rohrbach, 35 N.J. Super. 260, 268 (App. Div. 1955), certif. den. Evans v. Matthews, 19 N.J. 362 (1955). Rules of liability in automobile cases are fraught with most permeating social and economic effects in this motor age. There is no evidence of any current lack of sensitivity or concern in the legislative branch in this area of public policy. Neither reason nor experience counsels the judicial divagation from fundamental principles which entertainment of plaintiffs' plea would entail. See the dissenting opinion of Mr. Justice Brandeis in International News Service v. Associated Press, 248 U.S. 215, 262, 263, 39 S.Ct. 68, 63 L.Ed. 211 (1918). Plaintiffs complain of the entry of a formal order of dismissal by the trial judge, making a finding as to ownership of the car, entered ex parte after the filing of the notice of appeal. The regularity of this action does not affect the basis for our decision herein and consequently calls for no discussion. Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
-If -2) ~- ~- J <;ee. rn~ Cour"!CZeeod~-rl/2 f'a~n: 7/iiz CbvrT! BL..Zr ·:zE 'iou__a_~_a.s.kttltfJ {!an "'av a.sk WeJI cltd _'Jw have an Ylrve.S+.._ ___ ,.__ d td::thR iJ. Ja YY!ll1r_avTh.DY:£Zll._Yov fv u:t'l~ allt)lllPY Bvtf ?.? ves 4 lj ·----rk UJaYYUnf. w~ llvlhoYtZ.e 4u ltrveM a/Jo?kr2v~>--TilR IJtr'dl"" lU~Yetnt- uJ~ AloT-nY ~, k/IJ!ftd J'tfve]f h<tJ--rk ftJ11l:£, · · and, Wh.tt-e. ·-rJw... fbubz OPRUr-s execvTtJJ a no II hock etndutJnoCJn·CQ Yh ts1ll k:tn ('f) 5-.eu V'h//1 Wa Yn.tlllf 7/1111£ fflf-# ::LoS /ha I WDS /1/oT milLe nh---HJ.os and ri!U17Pd ELAC:Lt!IL.iU. ·-:znsJ'd.e U/1111 IM ~bvC/J8 a{}utn)'+ ·-1-o f'll.IL see fi1f:J CooYT'" £eco'fd. ~ -7/t.£ faw·# -=f.3 I fkesnan: i4nd dJ"J ~w Ftnd/? 1lrt10Affl-:z:. rovnJ fYI ·£nW/o~ wifh a uf.l.ty ln if-Wh/f!h Con7Ut'il£d- ·---rlu_ cl.tFe11dt.tl11" S' rJC/111£~ . ClueQJao! lit d. ~ou rou!ld an~ orhr faftr Wotlr/ ~ · a.,nvey.g fJJSfJifOvlld a ~cerf'f. Wh/i!h ConTa~cl-du dtl=el!dunf.!g /lla/J1£., S~S' exhtbtt A/f), lS at1cl ~klte's e'Xhlhlf /1/o~ 'Z6t IJb ...iov 12«.oBI1/z.e ·---rh.il.e ?.li tJn )l,<..e v: -~ ·eS 1&~han~ flnd-rht~ Wa.A fbvnd ·:z:nsickoF7JLe hox: ·lv,'fh wht::tr- aPreavQc{ -hJ lie. Jl..en,rnR 1 cacm'll R, and /llon'ticlano? '? . F1n]b,W?y~ 'fer:; Afcli-:Z:n --rlzP Saeks hur-:HJ'SI;le rJF-rk. ho"K..., L 01 A • m~ Hui ¥l-In): ;-rA-e stur-e tuw1d oFFtv-z;r,---ro c:vtd-RJU..e_ srur-eJ' · ~~b/f, A/o, LS, r:ltteY.bnn ~'!' D,A.f!>~ .. ~d'linsc:, find sm-re'sr eih/hll- A/o,u WhaT is ·rJtar-,7! · 8n ifM,(e(D ·--Tf-11"5 IS a lfuncl Wrtfki/J /Zeutf!- /hcd- haJ ao/JUT1Jt7J!!J Cct Sirlll£ Jcc on 11-- 1--:z:.. V'eo/1YJ Can !J- V'-t?ctc1 {f. . fk.eRh'Dn! ---,-k rtrS'f n(l/lUl bllf"--rle {~ nu/lLe YtJll Ctfl// V'-eaJ ~ Cu.sluiLf. da ~ q1M'M~.N1; d1d --7hts aLEro affmy ·-:z:n-dz.e_ ho>< Whur afJtfeured ·fo h-e . dvo~, J/..pn,i'LIR, ..BJ£ut1Yz., uncl filunt/Liana/ 1• tln /hMeu: ~ :ti!_ )J --~vf!)elflJ.I, &- . o, -· 'tJclk -ifsz, fAJeS7li>n: ~ IJ, ms·; .ltud.ctr.ii:JS:: i.£-1-JJtL ~-!bP iov, wnu1 ls ·-.:z+ thor '/{)(} Fbvtlcl -7! · .. · . tqnff1At£vC:, ·-::z: fbvtld ~--rb. J-r#.-cfu//1 '?/~a clntW-ev a w, ·z fovm· !Yom lqrf, -::J..---1- ShiJ~-rhaf )u Lllovlr~; OJ\,~~ Wun--~l!uYd (s ~ hDLv/htJ W/uv-e--dt£ forlce tfFPt'a.VS m!::J Wanr-Pd EV1'H.Ril..t2£. -:::;:.,n·-?Jle R{)f-=1f2cs; wi'lh ~ drv~ a~msr ·-.,-o rtLrLc- ~},e £1/ide!LQ....e, !.¥ere "Y! 01hov fJ{lHf Zoz, #- C3)	{ "pile_set_name": "FreeLaw" }
60 F.3d 375 68 Fair Empl.Prac.Cas. (BNA) 602,66 Empl. Prac. Dec. P 43,635Robert E. SIRVIDAS, Plaintiff-Appellant,v.COMMONWEALTH EDISON COMPANY, Defendant-Appellee. No. 95-1388. United States Court of Appeals,Seventh Circuit. Argued July 7, 1995.Decided July 25, 1995. Sarah Vanderwicken, Thomas H. Geoghegan, Leon M. Despres (argued), Jeffrey C. Boulden, Despres, Schwartz & Geoghegan, Chicago, IL, for plaintiff-appellant. Julie O'Donnell Allen (argued), Lisa D. Freeman, Sidley & Austin, Chicago, IL, for defendant-appellee. Before POSNER, Chief Judge, BAUER and KANNE, Circuit Judges. KANNE, Circuit Judge. 1 Robert Sirvidas sued his former employer, Commonwealth Edison Company ("ComEd"), alleging that he was terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634. ComEd argues that it discharged Sirvidas because of his record of poor performance and limited abilities. The district court granted summary judgment in favor of ComEd. The issue on appeal is whether Sirvidas presented enough evidence to survive a summary judgment motion by showing that ComEd's rationale for firing Sirvidas was a pretext for age discrimination. We affirm. BACKGROUND 2 Sirvidas was born in April 1940. ComEd hired him in 1969 for an entry level bargaining unit position. Over the years, Sirvidas received several promotions and moved into management. In 1989, he became a Quality Control Inspector at the Zion Nuclear Generating Station. As an inspector, Sirvidas monitored the work performed by other Zion station employees to ensure compliance with internal procedures and governmental regulations and prepared detailed reports of his inspections. 3 In the spring of 1992, ComEd faced serious financial problems including the loss of anticipated rate increases totalling $400 million, a court order to refund almost $250 million to its customers, an increase in operating costs and a 50% decrease in stock value. ComEd undertook a reduction in force as one of several cost-cutting measures. It told local station management to identify positions to be eliminated and personnel to be involuntarily terminated. 4 Thomas Joyce, Zion's station manager, formed a committee with four other senior managers to examine all positions at the station to determine which could be eliminated or consolidated and to review all personnel to decide who might take early retirement or leave voluntarily.1 The committee also compiled a list of the poorest performers based on their "Performance Planning and Review" ("PPR") ratings. Another list named the employees whose job responsibilities had been specifically tailored to their limited abilities. The committee then combined the lists and sought input from the line managers regarding the performance of each person on the list. 5 ComEd's PPR system provides the means to evaluate each employee's performance on an annual basis. A supervisor gives the employee a numerical rating from 1 to 9. A rating from 1 to 3 indicates that the employee's performance is below acceptable and needs improvement; a rating from 4 to 6 means that the employee is "meeting expectations"; a rating of 7 or 8 signifies that the employee's performance is exceptional; and a rating of 9 indicates that the employee's performance is exceptional plus. 6 Sirvidas' name was on the list of poor performers because he received a PPR rating of 3 in 1989, 1990 and 1991.2 When the committee approached the quality control supervisor Carl Schultz in 1992, Schultz identified Sirvidas as the least valuable contributor to the department. Schultz based his determination on his personal knowledge of Sirvidas' skills, Sirvidas' PPR ratings, and the opinions of his senior staff. According to Schultz, Sirvidas was not assigned the most difficult or most critical tasks in the department. Moreover, since 1986 Sirvidas' evaluations continuously noted his poor writing skills and the lack of thoroughness of his reports and recommended that he take a writing class. 7 Accordingly, Sirvidas' name remained on the final list of employees recommended for involuntary termination. The "Separation Justification" form stated: 8 Position eliminated. Limited skills and abilities to effectively perform job. He requires continual supervision to assure tasks are completed. These limitations preclude opportunities within other station departments. Work production is below his peers. He is the least valuable contributor in his work group. 9 ComEd terminated Sirvidas in August 1992. 10 Sirvidas filed this action in July 1993. The district court granted summary judgment in ComEd's favor because Sirvidas did not come forth with any evidence showing that ComEd's proffered reasons for termination were a pretext for age discrimination. ANALYSIS 11 A grant of summary judgment is reviewed de novo. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, does not establish a genuine issue of material fact and judgment is proper as a matter of law. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). 12 There is no direct evidence of age discrimination in this case. Instead, Sirvidas relies on the burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and which has been applied to ADEA claims. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 333 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2584, --- L.Ed.2d ---- (1995). To establish a prima facie case of age discrimination under the ADEA, the plaintiff must show that he is a member of the protected age group, that he was performing to his employer's legitimate expectations, that he was subject to a materially adverse employment action, and that younger employees were treated more favorably. Roper v. Peabody Coal Co., 47 F.3d 925, 927 (7th Cir.1995); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994). Once a prima facie case is established, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Schultz, 37 F.3d at 333. If a legitimate explanation is provided, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for age discrimination. Id. Thus, the ultimate burden of persuasion remains with the plaintiff. St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). To defeat a summary judgment motion, the employee need only produce enough evidence from which a rational fact-finder could infer that the company's proffered reasons were pretextual. Courtney, 42 F.3d at 418. Because ComEd does not dispute on appeal that Sirvidas established a prima facie case of discrimination, the only inquiry here is whether Sirvidas produced enough evidence from which a reasonable fact-finder could infer that ComEd's proffered reasons for terminating Sirvidas were false and that he was actually discharged because of his age. Id. 13 The evidence Sirvidas presents is insufficient to create a genuine issue of fact as to ComEd's motives. Sirvidas submits that he was not the weakest performer in the Quality Control department and offers his own statement and a former co-worker's affidavit in support. He points to positive statements in his yearly evaluations regarding his abilities and denies that he was given less difficult or less critical assignments. In fact, he states that his "supervisors demanded and received more from me than from others in the Quality Control Department, because of my superior ability on the job." Sirvidas offers no factual support for this last statement. Moreover, isolated statements referring to some of Sirvidas' strengths do not demonstrate that he was a stronger performer than other employees in the department. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 403 (7th Cir.1992) ("The fact that an employee does some things well does not mean that any reason given for his firing is a pretext for discrimination"). 14 The question is not whether Sirvidas was or was not performing satisfactorily but whether ComEd honestly believed that Sirvidas was the weakest member of the department. Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.1995); Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992). Accordingly, general averments of adequate performance by Sirvidas or a co-worker are ordinarily insufficient to create a factual issue on summary judgment; rather Sirvidas must specifically refute the facts which allegedly support the employer's claim of deficient performance. Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1460 (7th Cir.1994); Anderson, 13 F.3d at 1125; Gustovich, 972 F.2d at 848. 15 In his affidavit, Sirvidas admits that his 1986, 1987, 1989 and 1991 performance evaluations indicated that his writing skills needed to improve. At his deposition, he also indicated that his supervisor, Carl Schultz would speak to him about improving his reports: 16 Q: And did Mr. Schultz ever discuss any performance problems with you? 17 A: Yes. 18 Q: What were those performance problems? 19 A: Those were basically what we had talked earlier about. I still needed some more improvement with my paper. 20 Q: The same kind of improvement in terms of more detail in your reports? 21 A: Just make them longer. 22 Q: Would Mr. Schultz tell you this on an informal basis in the office or was this part of the performance evaluation or how did he let you know that you needed to make your reports longer? 23 A: If he thought that I needed some more--he would just come up--it would either be if it came up to the time around the performance rating he would let me know there or during the course of--before the PPRs, he would come up and address the fact that Bob, you're getting a little lackadaisical on your paperwork again. 24 Q: And you knew what he meant by that? 25 A: Yes, ma'am. 26 R. 15, Ex. H at 119-120. He continues later: 27 Q: Did Mr. Schultz remain your supervisor until your employment was terminated?A: Yes, ma'am. 28 Q: Did he continue to complete PPRs for you? 29 A: It was either he would complete a PPR for me or he would have Gus Ponce do it. 30 Q: Did he continue to raise concerns about your writing ability? 31 A: He would bring the point of that he would like to see it get better. 32 R. 15, Ex. H at 129. Despite his deposition testimony, Sirvidas' affidavit states that between 1987 and 1992, Schultz spoke to him at most twice about his written reports. Although it is unclear from the deposition testimony how often Sirvidas was approached about his writing problems by Schultz or his immediate supervisors, it is clear, given the four PPR evaluations discussing his need for improvement in this area, that it was more than twice. "Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken." Russell, 51 F.3d at 67-68. Sirvidas admits in his deposition that his weak writing and reporting skills were an ongoing problem. 33 Nonetheless, to dispute the allegations of weak performance, Sirvidas draws our attention to a ComEd document created in 1992 which set his salary for that year. The report indicated that his performance "Meets All Expectations." The potential range for pay raises in this category was 4.0% to 5.49%; Sirvidas received a raise of 4.01%. Sirvidas argues that this piece of evidence alone demonstrates that he had met ComEd's expectations and that ComEd lied when it terminated him based on his performance. 34 The merit pay increase, however, does not contradict ComEd's assertion that Sirvidas was the weakest member of the Department and therefore, does not constitute evidence establishing pretext. ComEd readily admits that Sirvidas would not have been discharged had it not been forced to eliminate personnel as a result of its financial troubles. Rather, it asserts that Sirvidas was at the bottom of the group of quality control inspectors who were performing at a level satisfactory to the company before the reduction in force. Were Sirvidas to show that other quality control inspectors received lower salary increases or lower performance evaluations, he may provide enough evidence questioning ComEd's motives to survive a summary judgment motion. The mere fact that he received a pay increase is insufficient. 35 This court addressed a similar situation in Aungst v. Westinghouse Electric Corp., 937 F.2d 1216, 1223 (7th Cir.1991). In that case, an employee was also terminated during a reduction in force because according to the company, he was the least versatile engineer in the department. To establish pretext, the employee submitted evidence of satisfactory performance reviews and a merit pay increase. Id. We held that such evidence did not rebut the specific reason advanced by the company for the discharge because it was Aungst's versatility and not his competence in his narrow area of expertise which was at issue. Id.;3 see also Gustovich, 972 F.2d at 848 (plaintiffs' evidence demonstrating the adequacy of their performance was insufficient to establish pretext since they were discharged because they were the weakest supervisors). Similarly, Sirvidas' merit pay increase, the lowest possible increase in the "Meets All Expectations" category, does not rebut the fact that ComEd considered him the least productive member in the department. 36 The only other evidence Sirvidas submits is his affidavit alleging that his co-workers Tim Stack and Richard Leigh were far less experienced than he and therefore, not as valuable or productive. According to Sirvidas, both Stack and Leigh had fewer certifications than he and neither of them had the skill or authority in management surveillance to confirm with a signature that a job had been performed satisfactorily. Stack and Leigh, however, had both recently transferred to the quality inspection department and were still in training. And the quality control supervisor Carl Schultz indicates in his deposition that other criteria besides the number of certifications went into his evaluation:A: I had one person who had recently joined the department from another department who was basically in a learning training mode, so that person was not able to perform as many inspections or anything. But of the qualified certified inspectors, Bob's performance was the weakest. 37 . . . . . 38 Q: I see. Well, who was the person who was the learner? 39 A: Mr. Timothy Stack. 40 Q: Why didn't you list him as the weakest performer? 41 A: He had just recently come into the department and had not gone through the certification qualification process and was not really expected to be a fully functional member of the department at that time. 42 Q: Well, in fact, however, wasn't he really the weakest performer in the department? 43 A: That would be relative. I mean, there was only certain things he could do because he wasn't certified in a lot of inspections at that point. 44 Schultz Deposition, pp. 13-14. Later in his deposition, Schultz made clear that he focused more on the employee's skills and potential than on the number of certifications each held. 45 Q: So based on the certifications, would you say that he had less certifications--or fewer certifications and, therefore, was less qualified than Bob Sirvidas? 46 A: He had fewer certifications by virtue of the fact that he had been in the department much less time and, in fact, just recently come into the department and was in a training mode. But I think his skill sets were such that he would have fully certified in the areas we asked him to. 47 Q: But you didn't know for sure? 48 A: Didn't know for sure what? 49 Q: Whether he wouldn't fully certify? 50 A: I had full confidence that he would. 51 Q: Well, were there areas in which Bob Sirvidas was more experienced than Richard Leigh in quality inspections? 52 A: Well, every inspector has their own areas where they have maximum experience. Bob had a lot of experience in mechanical and welding. Other inspectors had experience in electrical or instrumentation or control. They were all relative levels of experience, but the certification is what made them all equal--or relatively equal. They were equally certified as far as being able to be an inspector. Now, within that certification, each one was limited by their skill sets that they possessed within those areas, and that's basically how we rated them. 53 Schultz Deposition, pp. 42-43. 54 The Station Manager Thomas Joyce also averred that prior to the compilation of the final list, the committee discussed "the employee's then-current and potential contribution to the location and department; comparative quality of the employee's performance; comparative level of the employee's skills and knowledge, and comparative value and necessity of the employee's job position." Because all of the fully trained inspectors were equally experienced with respect to the number of certifications they held, it is clear that ComEd was more concerned with the individual's overall skill level and potential to grow, even of those still in training. The fact that Sirvidas held more certifications than either Stack or Leigh, therefore, does not undermine the veracity of ComEd's assertion that Sirvidas was terminated because he was the weakest member of the department. CONCLUSION 55 Sirvidas has not come forth with any other evidence to show the pretextual nature of ComEd's reasons for terminating him. Accordingly, the district court's grant of summary judgment is AFFIRMED. 1 The committee members included David Wozniak, Technical Superintendent; William Kurth, Production Superintendent; Tony Broccolo, Services Director; and Norman Bresemann, Human Resources Supervisor 2 Although we could not find the numerical rating on the evaluation sheets, the parties do not dispute that Sirvidas received a rating of "3" for this time period. The evaluations indicate that in 1989, Sirvidas received a rating of +NI, that is, somewhere between "Fully Meets Expectations" to "Needs Improvement to Meet Expectations." He received a similar rating for 1990. The "Overall Assessment" page of the 1991 evaluation is not marked. However, Sirvidas was assessed ratings of "Fully Meets Expectations," "Meets Expectations," and "Unacceptable" for the different objectives. The 1991 evaluation also indicated that Sirvidas needed the most improvement in "Knowledge of [indecipherable] Inspections" and "Effective Writing Skills." 3 A later case, Oxman v. WLS-TV, 12 F.3d 652 (7th Cir.1993), did not alter this approach	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ AVIVA SPORTS, INC., A MINNESOTA CORPORATION, Plaintiff-Appellee v. FINGERHUT DIRECT MARKETING, INC., A DELAWARE CORPORATION, MENARD, INC., A WISCONSIN CORPORATION, KMART CORPORATION, A MICHIGAN CORPORATION, MANLEY TOYS, LTD., DBA MANLEY TOYS, DBA TOYQUEST, A HONG KONG, CHINA CORPORATION, Defendants STEPHEN M. LOBBIN, Sanctioned Party-Appellant ______________________ 2015-1619 ______________________ Appeal from the United States District Court for the District of Minnesota in No. 0:09-cv-01091-JNE-JSM, Judge Joan N. Ericksen. ______________________ JUDGMENT ______________________ JOHN THOMAS VITT, Dorsey & Whitney LLP, Minne- apolis, MN, argued for plaintiff-appellee. Also represented by DAVID YOUNGERT TREVOR. STEPHEN M. LOBBIN, Newport Beach, CA, argued pro se. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (PROST, Chief Judge, NEWMAN and LOURIE, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT February 10, 2016 /s/ Daniel E. O’Toole Date Daniel E. O’Toole Clerk of Court	{ "pile_set_name": "FreeLaw" }
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. TIMOTHY WARREN STROBLE, Petitioner. No. 1 CA-CR 18-0786 PRPC FILED 4-4-2019 Petition for Review from the Superior Court in Maricopa County No. CR2012-008428-001 DT The Honorable Rosa Mroz, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Gerald R. Grant Counsel for Respondent Timothy Warren Stroble, Tucson Petitioner MEMORANDUM DECISION Presiding Judge Lawrence F. Winthrop, Judge Maria Elena Cruz, and Judge Kenton D. Jones delivered the decision of the Court. STATE v. STROBLE Decision of the Court PER CURIAM: ¶1 Petitioner Timothy Warren Stroble seeks review of the superior court’s order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1. This is petitioner’s first petition. ¶2 Absent an abuse of discretion or error of law, this court will not disturb a superior court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is petitioner’s burden to show that the superior court abused its discretion by denying the petition for post-conviction relief. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011) (petitioner has burden of establishing abuse of discretion on review). ¶3 We have reviewed the record in this matter, the superior court’s order denying the petition for post-conviction relief, and the petition for review. We find that petitioner has not established an abuse of discretion. ¶4 We grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 2	{ "pile_set_name": "FreeLaw" }
[Cite as Frash v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-3134.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Mark J. Frash, Administrator of the : Estate of Mark Wayne Frash, Deceased, : Plaintiff-Appellant, : No. 14AP-932 (Ct. of Cl. No. 2011-04941) v. : (REGULAR CALENDAR) Ohio Department of : Rehabilitation and Correction, : Defendant-Appellee. : D E C I S I O N Rendered on May 24, 2016 On brief: Swope and Swope, Attorneys at Law, and Richard F. Swope, for appellant. On brief: Michael DeWine, Attorney General, and Eric A. Walker, for appellee. ON APPLICATION FOR EN BANC CONSIDERATION BRUNNER, J. I. INTRODUCTION {¶ 1} Defendant-appellee, Ohio Department of Rehabilitation and Correction, ("ODRC") has filed an application for en banc consideration of a decision we released on February 2, 2016, reversing a decision of the Court of Claims of Ohio and remanding with instructions. See Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016- Ohio-360. Plaintiff-appellant, Mark J. Frash, as administrator for the estate of Mark W. Frash, ("Estate") has responded in opposition. 2 No. 14AP-932 II. STANDARD {¶ 2} The Ohio Rules of Appellate Procedure explain the circumstances under which en banc consideration should be accorded: Upon a determination that two or more decisions of the court on which they sit are in conflict, a majority of the en banc court may order that an appeal or other proceeding be considered en banc. * * * Consideration en banc is not favored and will not be ordered unless necessary to secure or maintain uniformity of decisions within the district on an issue that is dispositive in the case in which the application is filed. App.R. 26(A)(2)(a). The Local Rules of the Tenth District Court of Appeals also prescribe a preliminary procedure whereby "[a]n application for en banc consideration * * * shall initially be submitted to the three-judge panel that issued the more recent of the two decisions alleged to be in conflict" to determine if the application shall be submitted to the en banc court. Loc.R. 15 of the Tenth District Court of Appeals; see also State v. Forrest, 136 Ohio St.3d 134, 2013-Ohio-2409. Unless this panel finds unanimously "that no conflict exists" the en banc court must consider whether to grant the application and consider the matter. Id. Thus, the core issue, both for deciding whether the en banc court should consider the application and the underlying merits, is whether our decision in Frash conflicts with other decisions of this Court. {¶ 3} The Supreme Court of Ohio has made apparent that conflicting decisions are those which conflict on the same legal issue or question of law. In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, ¶ 18. However, "courts of appeals have discretion to determine whether an intradistrict conflict exists." McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, paragraph two of the syllabus. Yet, "if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict." Id. III. DISCUSSION A. Notice of Which Particular Inmate Will be Attacked is Not Always Necessary or Always Unnecessary {¶ 4} ODRC makes much of our statement in Frash that it was, "not essential that ODRC know or foresee exactly whom Groves would stab." Frash at ¶ 10. ODRC then asserts that our 17-page majority decision "boils down" to nothing more than the holding 3 No. 14AP-932 that because the assailant, Eugene Groves, ("Groves") had "an older propensity for violence" that ODRC was perpetually on constructive notice that Groves would attack. (Feb. 12, 2016 Application for en Banc Consideration, 9.) This, ODRC states, conflicts with other cases in which we have made statements such as, "the averments in the affidavit do not permit the inference that [he] threatened to harm appellant in particular." (Emphasis sic.) Id. at 8, quoting Allen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015-Ohio-383, ¶ 21. In fact however, our statement that it was "not essential that ODRC know or foresee exactly whom Groves would stab" was not a legal holding about ODRC's duties to all prisoners in all cases. Frash at ¶ 10. It was an observation that, based on the facts of the case (which are much more complicated than the "boiled down" version ODRC now presents), identifying a specific target was not necessary. {¶ 5} ODRC argues that this Court has created an absurd result where ODRC is in a "sued if you do, sued if you don't" situation where it must either confine people in maximum security and face suit for constitutional violations or face lawsuits for every harm any prisoner perpetrates. (Feb. 12, 2016 Application for en Banc Consideration, 4.) However, ODRC's argument is an oversimplification both of the law as it stood prior to Frash and of the Frash decision itself. That is, ODRC posits that the law always had been (prior to Frash) that ODRC was never liable unless they knew exactly whom an inmate would attack. Then ODRC claims that our decision in Frash makes ODRC liable every time something happens regardless of whether they knew whom an inmate would attack. Both positions are hyperboles of our holding. {¶ 6} We have never held that notice of exactly who would be attacked is always a necessary prerequisite to establishing liability in cases such as these. Though ODRC cites a number of cases to try to support that proposition, none of those cases consist of holdings that knowing who would be attacked is always a prerequisite to establishing liability on the part of ODRC. {¶ 7} For example, in Allen, we explained that past threats against a variety of inmates without a "claim that [the attacker] ever made good on those threats" were insufficient to infer that ODRC "had constructive notice that an assault upon [the victim] was imminent." Allen at ¶ 22. We then remarked, within the fact pattern of an inmate 4 No. 14AP-932 who had made unsubstantiated threats, that the fact that ODRC "knew that [the attacker] was a violent offender who had made threats of violence toward other inmates is insufficient, standing alone, to establish constructive notice to [O]DRC of an imminent attack on appellant." (Emphasis added. ) Id. {¶ 8} In Watson v. Ohio Depart. of Rehab. & Corr., 10th Dist. No. 11AP-606, 2012-Ohio-1017, we declined to infer that the attacker was a danger to the victim and other inmates based on erratic behavior, because that "does not translate into actual or constructive notice that [the inmate] posed a risk of violence or that his attack on [the injured inmate] was forthcoming." Id. at ¶ 15, quoting Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 15. We additionally noted that the inmate in Watson had "never exhibited violent tendencies or assaultive behavior toward [the victim] or any other inmate during his incarceration at [the prison.] Further, while [the attacker's] actions prior to the assault were certainly bizarre, he did not threaten or act violently toward [the victim] or any other inmate." (Emphasis added.) Watson at ¶ 19. {¶ 9} In Ford v. Ohio Depart. of Rehab. & Corr., 10th Dist. No. 05AP-357, 2006- Ohio-2531, ¶ 14, 26, ODRC notes that we remarked that "this evidence, if believed by the Court of Claims as the trier of fact, constitutes some competent credible evidence to support the Court of Claims' conclusion that ODRC lacked actual or constructive notice of the intentional attack upon plaintiff." This is in no way analogous to an intentional attack upon the plaintiff, nor does it support a contention that, in every case, notice concerning a particular victim is a necessary prerequisite to liability. {¶ 10} Finally, in Kordelewski v. Ohio Depart. of Rehab. & Corr., 10th Dist. No. 00AP-1102 (June 21, 2001), we noted that this Court's caselaw had "left open the possibility that grossly deficient security procedures might give rise to liability on the part of ODRC if the result were to permit one inmate to attack another." But we ultimately decided in that case that the attacker's "institutional record of violence was * * * [not] so out of the ordinary as to warrant measures beyond those already taken by ODRC staff" and "accordingly [that] ODRC cannot be found liable for the attack solely on the basis of [the attacker's] institutional history of violent incidents." (Emphasis added.) Id. {¶ 11} Not only does ODRC's argument go too far in construing the cases reviewed above, it also goes too far in construing Frash. We did not hold in Frash that it is never 5 No. 14AP-932 (or even not generally) necessary to have notice of against whom an attack is impending. The law is that in order to be liable, ODRC must have had notice, actual or constructive, of an impending attack. See e.g., Metcalf v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 01AP-292, 2002-Ohio-5082, ¶ 11. Whether ODRC had or did not have notice is a question that depends on all the factual circumstances involved, only one of which is whether ODRC had information about exactly whom would be attacked. As we explained in Frash: As in most negligence claims, the Estate was required to demonstrate the existence of a duty, a breach of that duty, and an injury proximately caused by the breach. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). ODRC owes inmates a common-law duty of reasonable care and protection from unreasonable risks. Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048, ¶ 12 (10th Dist.). However the extent of the duty owed depends on the circumstances of the case and the foreseeability of injury. Id. at ¶ 13. "[T]he state is not an insurer of inmate safety and owes the duty of ordinary care only to inmates who are foreseeably at risk." Id., quoting Woods v. Ohio Dept. of Rehab. & Corr., 130 Ohio App.3d 742, 745 (10th Dist.1998). "Where as here, one inmate attacks another inmate, actionable negligence arises only where prison officials had adequate notice of an impending attack." Metcalf * * , 2002- Ohio-5082, ¶ 11. This notice may be actual or constructive. Id. (Footnote omitted.) Frash at ¶ 8. {¶ 12} In Frash, unlike the cases ODRC cites, we viewed the other factual circumstances as sufficient to put ODRC on constructive notice notwithstanding the fact that ODRC lacked information about exactly whom Groves would assault. For example, we considered: (1) Grove's regular and repetitive record of stabbing violence against other inmates (incidents in 1984, 1988, 1994, 1996, and 1999 before being placed on level 5 security) leading up to this incident in 2010 (which was 4 years after being transferred to level 3 security in 2006); (2) the fact that these incidents were a direct result of Groves' permanent mental condition as a sufferer of paranoid schizophrenia; (3) the fact that the only guard on duty nearby was an inexperienced relief officer who had only worked at the prison for two weeks; (4) did not know the numbers to call in the event of an emergency; and (5) thought he was guarding level 2 prisoners (less dangerous) when he was really guarding level 3 prisoners (more dangerous). Id. at ¶ 2, 16-19. 6 No. 14AP-932 {¶ 13} In short, Frash does not change the law that, as we have observed in past cases, it would often be unfair to say that ODRC had notice of an attack when they did not know who would be attacked. Despite ODRC's arguments that it is always necessary to show that ODRC had notice of precisely whom would be attacked, there are situations in which it would be manifestly absurd to say that ODRC had no notice of an impending attack when it did not know particularly who would be attacked. For example, if an inmate stated to a guard, "I will stab to death the next person who walks into the exercise yard," and the inmate carried out his plan as the guard stood by doing nothing to interfere, it would be clear that the prison had notice that an attack was impending even though no one could predict which particular person would be attacked. In Frash, we believed the facts as stated by the Court of Claims justified the conclusion that the Court of Claims was in error to have held that ODRC lacked constructive notice. Frash applies the same law as all the cases ODRC now cites, it merely reaches a different result because the facts are different. See, e.g., Allen at ¶ 22 (remarking that there was no "claim that [the attacking inmate] ever made good on [prior] threats"); Watson at ¶ 19 (noting that the attacking inmate "never exhibited violent tendencies or assaultive behavior toward [the victim] or any other inmate"); Kordelewski (noting that, because ODRC had acted appropriately, "ODRC cannot be found liable for the attack solely on the basis of [the attacker's] institutional history of violent incidents"). There is no conflict on a question of law here that requires en banc review. B. Discretionary Immunity {¶ 14} ODRC argues that Frash should be reviewed en banc because we held that ODRC was liable concerning inmate transfer and placement decisions, with previous holdings being that such decisions are normally entitled to immunity. However, nowhere in Frash did we hold as ODRC now asserts. Rather, we noted that discretionary immunity protects " ' " 'the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion." ' " ' Frash at ¶ 21, quoting Franks at ¶ 14; quoting Hughes at ¶ 16, quoting Reynolds v. State Div. of Parole & Community Servs., 14 Ohio St.3d 68 (1984), paragraph one of the syllabus. Then we explained that some of the Estate's claims at the trial level appeared to be more in the nature of claims about negligence by the guard 7 No. 14AP-932 involved, negligent training of him, and negligence in following already-established policies, which are not protected by such immunity: The Estate's allegations were that an inexperienced guard, Hawk, acted improperly and fearfully in reacting to a fight and that ODRC violated its policies in deciding to house an unstable and dangerous inmate like Groves in a level 2 area. While we recognize that Hawk, like all implementing employees, must exercise some degree of discretion in carrying out his duties, we have previously explained the problem in finding immunity in these situations: " 'Were we to find that discretionary immunity applies every time a state employee exercises discretion in performing his or her job, we would be vastly expanding the scope of the discretionary immunity doctrine.' " [Miller v. Ohio Dept. of Transp., 10th Dist. No. 13AP-849, 2014-Ohio-3738, ¶ 32], quoting Foster v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 12AP-503, 2013- Ohio-912, ¶ 23. Insofar as the Court of Claims applied immunity to claims that are really about negligence in adhering to policies relating to training, supervision, and inmate placement, it erred. Frash at ¶ 23. {¶ 15} We discern no basis for en banc review here. C. Privilege, Relevance, Burdens, and in Camera Review {¶ 16} We reversed the decision of the Court of Claims with regard to discovery issues because that court improperly placed the burden on the party seeking the discovery to prove relevance and the absence of privilege and because it refused to review purportedly privileged records in camera to ascertain whether they were privileged. We explained: The Court of Claims described its decisions to deny the Estate access and use of Groves' medical and psychiatric records as follows: On three separate occasions, plaintiff filed a motion to compel Groves' psychological and medical records, and on all three motions, the court denied the motion because plaintiff did not persuade the court that the documents were not privileged, relevant, or would lead to admissible evidence establishing the necessary elements of plaintiff's cause of action. 8 No. 14AP-932 (Oct. 1, 2014 Entry, 2.) This incorrectly shifts the defendant's burden to the plaintiff. "The burden of proof rests with the party asserting the existence of privilege." Shaffer v. OhioHealth Corp., 10th Dist. No. 03AP-102, 2004-Ohio-63, ¶ 8. The Court of Claims erred in ruling against the Estate on grounds that the Estate had failed to carry a burden that was not its to carry. ** Moreover, as to questions of whether material is relevant and discoverable, this court has previously stated: Matters are only irrelevant at the discovery stage when the information sought will not reasonably lead to the discovery of admissible evidence. [Covington v. MetroHealth Sys., 150 Ohio App.3d 558, 2002-Ohio-6629, ¶ 23 (10th Dist.)]; Dehlendorf v. Ritchey, 10th Dist. No. 12AP-87, 2012-Ohio-5193, ¶ 20. The party resisting discovery bears the burden of demonstrating to the trial court that the requested information would not meet this standard. Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, ¶ 44 (10th Dist.). (Emphasis added.) Union Sav. Bank v. Schaefer, 10th Dist. No. 13AP-222, 2013-Ohio-5704, ¶ 46. Some of the key questions in the case were whether the injury to M.W. Frash by Groves was foreseeable and whether ODRC was negligent in protecting M.W. Frash from Groves. Evidence as to Groves' mental state leading up to the attack and Groves' psychiatric condition and propensity for violence are discoverable absent ODRC demonstrating that they should not be subject to discovery for whatever reason it posited. We finally note that the Court of Claims declined to make an in camera inspection of the records being challenged. The Court of Claims should not have placed the burden of proving relevance and disproving privilege on the Estate (which did not have access to the records). Moreover, it should have performed an in camera inspection before ruling that the records were privileged and irrelevant without knowing for what purpose the records had been made. Frash at ¶ 25, 28-29. 9 No. 14AP-932 {¶ 17} ODRC does not claim that these principles of law are incorrect or cite any case from this district or elsewhere that purports to conflict with these legal principles. Thus, we find no occasion for en banc review of our decision. IV. CONCLUSION {¶ 18} In Frash we applied the law as it existed in this district to a highly unusual fact pattern to reach the result we did, but we did not state any new or conflicting rules of law. Our decision in Frash does not conflict with other decisions of this district on any question of law. Hence, there is no occasion for en banc review, and ODRC's application is denied. Application denied. TYACK, J., concurs. DORRIAN, P.J., concurs in judgment only. DORRIAN, P.J., concurring in judgment only. {¶ 19} I concur in judgment only to deny Ohio Department of Rehabilitation and Correction's ("ODRC") application for en banc consideration. {¶ 20} ODRC asks this court to find that the majority's conclusion at ¶ 10 of the decision, Frash v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-360, that "it is not essential that ODRC know or foresee exactly whom Groves would stab," conflicts with Elam v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-714, 2010-Ohio- 1225, ¶ 11-12; Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-357, 2006-Ohio- 2531, ¶ 14; and Allen v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-619, 2015- Ohio-383, ¶ 21. (Emphasis sic.) ODRC argues that Elam, Ford, and Allen stand for the proposition that ODRC is liable for inmate-on-inmate assault only when it had actual or constructive notice that one inmate intended to harm another specific inmate. ODRC further argues that such conclusion blends the requirement of notice with the requirement of proximate cause. {¶ 21} As noted by ODRC, I dissented from the majority's blending of the elements of constructive notice and proximate cause. I noted that I would follow this court's precedent in Elam, at ¶ 10, that in proving the elements of a wrongful death suit, notice of an attack is a "separate and distinct" requirement from proximate cause. I continue to have concerns regarding the majority's discussion of negligence (notice) as being "not 10 No. 14AP-932 separate from the question of liability." Frash at ¶ 12. Nevertheless, my concerns in this regard do not necessarily lead me to the conclusion that there is an intradistrict conflict of law as ODRC has posited above. {¶ 22} The majority states herein that "[w]e did not hold in Frash that it is never (or even not generally) necessary to have notice of against whom an attack is impending. * * * Whether ODRC had or did not have notice is a question that depends on all the factual circumstances involved, only one of which is whether ODRC had information about exactly whom would be attacked." (Lead opinion at ¶ 11.) The majority further states: "Frash applies the same law as all the cases ODRC now cites, it merely reaches a different result because the facts are different." (Lead opinion at ¶ 13.) Finally, the majority states: "In Frash we applied the law as it existed in this district to a highly unusual fact pattern to reach the result we did, but we did not state any new or conflicting rules of law." (Lead opinion at ¶ 18.) With this in mind, I would concur with the majority that en banc review is not proper with regard to this issue as it is posited by ODRC. {¶ 23} ODRC also asks this court to find that the rejection of discretionary immunity in the decision conflicts with Troutman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 03AP-1240, 2005-Ohio-334, ¶ 9, and Hughes v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-1052, 2010-Ohio-4736, ¶ 16-19. ODRC then concedes that the "majority opinion does not explicitly overrule those cases finding that classification, housing and placement of inmates a matter of discretion—but does so in effect." (Feb. 12, 2016 ODRC Application for En Banc Consideration at 19.) Accordingly, as there is no express conflict, I would concur with the majority that en banc review is not proper with regard to this particular issue. {¶ 24} Finally, ODRC asks this court to find that the rejection of the state's claim of a non-party's privilege in mental health records in the decision conflicts with a yet undecided case, Evans v. Summit Behavioral Healthcare, 10th Dist. No. 15AP-241. As the conflict presented here is hypothetical, I would concur with the majority that en banc review is not proper with regard to this particular issue.	{ "pile_set_name": "FreeLaw" }
119 Mich. App. 451 (1982) 326 N.W.2d 540 KULL v. WATZKE Docket No. 60319. Michigan Court of Appeals. Decided September 9, 1982. Alan G. Greenberg, for plaintiff. Thomas J. Trenta, for defendant. Before: M.J. KELLY, P.J., and M.F. CAVANAGH and P.R. JOSLYN,[] JJ. PER CURIAM. Edmund Kull was married to plaintiff and had two minor children, born in 1968 and 1971. On January 28, 1973, Kull died due to injuries sustained in an automobile accident. Eight years later, plaintiff petitioned to be appointed personal representative of her husband's estate. She was appointed on May 27, 1981. On July 6, 1981, plaintiff commenced an action for wrongful death, pursuant to MCL 600.2922; MSA 27A.2922, alleging that her husband's death occurred as a result of defendant's negligence. Defendant moved for accelerated judgment under GCR 1963, 453 116.1(5), arguing that the applicable three-year statute of limitations, MCL 600.5805(8); MSA 27A.5805(8), barred plaintiff's claim. Plaintiff responded that the period of limitation should be tolled in respect to claims that she is asserting on behalf of her minor children due to her children's infancy. The trial court granted defendant accelerated judgment and plaintiff appeals as of right. MCL 600.5805(8); MSA 27A.5805(8) provides a three-year period of limitation for commencement of wrongful death actions. Reiterman v Westinghouse, 106 Mich App 698, 701-702; 308 NW2d 612 (1981). In addition, MCL 600.5851(1); MSA 27A.5851(1) provides: "If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run." Plaintiff's children, however, are not the persons first entitled to bring a wrongful death action. Rather, MCL 600.2922; MSA 27A.2922 mandates that only the personal representative of an estate may bring an action for wrongful death. Accord, Maiuri v Sinacola Construction Co, 382 Mich 391, 393; 170 NW2d 27 (1969). Since minor children are not entitled to bring wrongful death actions, the period of limitation is not tolled by their infancy. This issue was treated at some length in Hebert v Cole, 115 Mich App 452; 321 NW2d 388 (1982), and we choose to follow Judge ALLEN's reasoning in that decision. The inequity caused by the Supreme Court's decision to create a child's cause of action in a wrongful death case, which is not coextensive 454 with its cause of action in a personal injury case, we leave for correction by the Legislature. The three-year period for bringing a wrongful death action expired before plaintiff filed her complaint. Accelerated judgment was, therefore, properly granted. Affirmed. NOTES [] Circuit judge, sitting on the Court of Appeals by assignment.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ANTHONY WHITFIELD, d/b/a Whitfield  Realty, Plaintiff-Appellant, v. JOHN BOURNE COMPANY; JOHN BOURNE, JR.; JOHN BOURNE, III; MARY BOURNE BOS; DPS ASSOCIATES OF CHARLESTON, INCORPORATED, a/k/a ReMax Professional Realty; DAVID WERTAN; FRED RICE; BULWINKLE REAL ESTATE COMPANY, INCORPORATED; CARSON J. BULWINKLE; MERYL BULWINKLE; LETTY PARRISH; FIRST COASTAL PROPERTIES; MORRIS BOURNE; MORRIS  No. 99-1010 BOURNE ASSOCIATES; CANDACE N. PRATT; Defendants-Appellees, and UNITED STATES OF AMERICA, Movant-Appellee, and EVE OLASOV, Defendant. GEORGE VESSELL, Movant.  Appeal from the United States District Court for the District of South Carolina, at Charleston. Solomon Blatt, Jr., Senior District Judge. (CA-94-939-2-8) 2 WHITFIELD v. JOHN BOURNE COMPANY Argued: September 28, 2000 Decided: July 26, 2001 Before NIEMEYER and MICHAEL, Circuit Judges, and Frederick P. STAMP, Jr., Chief United States District Judge for the Northern District of West Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. COUNSEL ARGUED: Kerry Warren Koon, Charleston, South Carolina, for Appellant. William Howell Morrison, MOORE & VAN ALLEN, P.L.L.C., Charleston, South Carolina, for Appellee. ON BRIEF: Rebecca Guental Fulmer, Desa Ann Rice Ballard, DESA BALLARD, P.A., West Columbia, South Carolina, for Appellant. Richard C. Burke, MOORE & VAN ALLEN, P.L.L.C., Charleston, South Caro- lina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Appellant Anthony Whitfield ("Whitfield") brings this appeal pur- suant to 28 U.S.C. § 1291 (1986). Appellant Whitfield, doing busi- ness as Whitfield Realty, brought this action in April 1994 against John Bourne Company, John Bourne, Jr., John Bourne, III, Mary Bourne Bos, DPS Associates of Charleston, Incorporated a/k/a WHITFIELD v. JOHN BOURNE COMPANY 3 ReMax Professional Realty ("ReMax"), David Wertan, Fred Rice, Bulwinkle Real Estate Company, Incorporated, Carson J. Bulwinkle, Meryl Bulwinkle, Letty Parrish, First Coastal Properties, Morris Bourne, Morris Bourne Associates, Candace N. Pratt and the United States of America (collectively referred to as "appellees"), alleging that the appellees have engaged in a variety of activities constituting unfair trade practices, antitrust violations, negligence and conspiracy resulting in an unfair and illegal manipulation of the process of resale of properties previously repossessed by the Department of Veterans Affairs. On appeal, appellant Whitfield alleges that the district court com- mitted reversible error when it granted summary judgment to all appellees on the basis of its ruling that Whitfield’s evidence of dam- ages was too speculative to support a jury verdict. Appellant also appeals the grant of summary judgment by the district court to all appellees on the claim for civil conspiracy on the basis of its ruling that Whitfield was required to demonstrate that the appellees con- spired for the purposes of injuring Whitfield in particular and on Whitfield’s cause of action seeking injunctive relief under the Sher- man Antitrust Act. Appellant also appeals the grant of summary judg- ment in favor of ReMax, David Wertan, Fred Rice, Letty Parrish, First Coastal Properties, Morris Bourne, Morris Bourne Associates, and Candace Pratt (collectively "referral appellees") on the unfair trade practices claim on the basis of its ruling that Whitfield has failed to demonstrate that the actions of those appellees were capable of rep- etition and on the negligence claim on the grounds that those appel- lees owed Whitfield no duty. Further, Whitfield alleges that the district court erred in failing to require appellees John Bourne Com- pany and Bulwinkle Real Estate Company to disclose their customers who purchased homes from the Department of Veterans Affairs, in failing to require appellees David Wertan and Fred Rice to produce their personal bank account records, and in granting the motion by the United States Department of Veterans Affairs to quash appellant’s subpoena for records pertaining to the investigation of Property Man- agement Brokers by the Office of Inspector General. Appellees respond that the district court committed no reversible error when it granted summary judgment in favor of the appellees and that the dis- trict court did not abuse its discretion in denying Whitfield’s discov- ery requests. For the reasons stated below, we affirm. 4 WHITFIELD v. JOHN BOURNE COMPANY I. The Department of Veterans Affairs ("DVA") is involved in the resale of properties because, as a benefit to veterans, the DVA will often cosign a note with a veteran enabling the veteran to obtain financing to purchase real estate. If the veteran defaults on the note, the DVA will satisfy the mortgage and acquire title to the real estate. The DVA then attempts to resell the property. When properties are acquired by the DVA, they are assigned to the supervision of various property management brokers ("PM brokers"). The PM brokers pro- vide the DVA with many services, including securing, winterizing, maintaining, and preparing the properties for resale. The PM brokers also deal with subcontractors who do various inspections and repairs as directed by the DVA. In addition, the PM brokers provide the DVA with a valuation opinion of the property that assists the DVA in set- ting the asking price for the property. Although the PM brokers are compensated for the services they provide to the DVA, they are also real estate companies or professionals and are able to earn commis- sions on real estate transactions handled successfully for their real estate clients. After a property is prepared for sale, the DVA "lists" the property for sale by newspaper advertisement. The listing is the first announce- ment to other realtors and to the public of the availability and price of the property. After the listing, the DVA accepts purchase offers for a limited time, often ten days. The highest bidder purchases the prop- erty subject to DVA approval and the minimum price. During the offer period, any licensed real estate professional can submit an offer to the DVA on behalf of a prospective purchaser. Upon closing of the sale, the real estate professional representing the successful purchaser earns up to a six percent sales commission paid by the DVA. PM bro- kers are permitted to seek to earn the DVA-paid commission by rep- resenting purchasers for properties under their management, subject to certain rules. Appellees John Bourne Company and Bulwinkle Real Estate Com- pany ("appellee PM brokers") have served as PM brokers in three South Carolina counties since 1987, except for the period from April 1, 1993 until October 1, 1994 when the John Bourne Company had the exclusive contract. While the John Bourne Company had the WHITFIELD v. JOHN BOURNE COMPANY 5 exclusive contract, it issued a memorandum to all real estate brokers in the tri-county area, including appellant Whitfield, advising them of the contract with the DVA. The property management contract between the DVA and the John Bourne Company contained the fol- lowing provision: The contractor [the John Bourne Company], members of his/her business organization and member of his/her imme- diate family or household are prohibited from selling VA properties managed under this contract during the first fif- teen days of initial listing. Additionally, the contract included an "anti-kickback" provision that prohibited the contractor [PM broker] from receiving things of value from any person providing services under their contract with any sub- contractors or prospective subcontractors. "Subcontractor" is defined as any person other than the contractor "who offers to furnish or fur- nishes any supplies, materials, equipment, or services of any kind under a prime contract or a subcontract" entered into with the contrac- tor. Appellant Whitfield is a real estate broker that specializes in the resale of DVA properties, as well as in the resale of other government properties, including properties under the management of the Depart- ment of Housing and Urban Development ("HUD") and the Home Owners Assistance Program ("HAP"). Appellant alleges that the PM brokers, in the course of performing their duties, acquired confidential information concerning DVA properties that was not readily available to Whitfield or to other real estate professionals competing in the market. Appellant further alleges that this confidential information gave the PM brokers an inherent advantage and that the John Bourne Company and Bulwinkle Real Estate Company used such "insider information" to the detriment of the appellant and other realtors in the Charleston area. Specifically, appellant alleges that John Bourne Company and Bulwinkle Real Estate Company disclosed confidential information on matters from pest inspections to system checks calcu- lated to allow their clients a better opportunity than others to present a winning bid. Appellant also alleges that the appellee PM brokers posted unauthorized signs on DVA properties advertising the appellee PM brokers’s own services as sales representatives, showed proper- 6 WHITFIELD v. JOHN BOURNE COMPANY ties to prospective purchasers prior to the listing of those properties in violation of DVA policy, and, in at least one case, represented the existence of a secret contract in the DVA office through which confi- dential information could be obtained. Moreover, appellant alleges that the John Bourne Company entered into improper agreements that referred confidential information and clients to the referral appellees for fees in violation of the contract with the DVA and to the detriment of appellant. Appellant Whitfield alleges that this unfair competition cost him business and profits and, therefore, appellant brought this civil action against the appellees in the district court. The district court granted a stay so that arbitration could be pursued, but vacated that stay when it became apparent that arbitration was not possible. Appellant filed an amended complaint and a second amended complaint. During the course of discovery, appellant sought the names of those purchasing DVA properties through the John Bourne Company and Bulwinkle Real Estate Company and the personal bank account records from certain referral appellees, but those discovery requests were denied by the district court. Appellees then filed motions for summary judg- ment. The district court granted summary judgment to all appellees on appellant’s causes of action for civil conspiracy, under the Sher- man Act Sections I and II, for Sherman Act injunctive relief, under RICO, and for breach of fiduciary duty. The district court also granted summary judgment on appellant’s causes of action for negligence and for violation of the South Carolina Unfair Trade Practices Act ("SCUTPA") in favor of referral appellees. The district court also granted all appellees summary judgment on the grounds "that the Plaintiff’s evidence of damages proximately resulting from the alleged conduct of any Defendant was entirely speculative and could not serve as the basis of a jury verdict in this case." The district court also granted the government’s amended motion to quash a subpoena for records of the DVA office of the Inspector General. Finally, the district court denied appellant’s motion to alter or amend the judg- ment. Appellant timely filed his notice of appeal before this Court. II. On appeal, a district court’s decision to grant summary judgment is subject to de novo review. See Sheppard & Enoch Pratt Hosp., Inc. WHITFIELD v. JOHN BOURNE COMPANY 7 v. Travelers Ins. Co., 32 F.3d 120, 123 (4th Cir. 1994); Myers v. Finkle, 950 F.2d 165, 167 (4th Cir. 1991). Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogato- ries, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the mov- ing party is entitled to a judgment as a matter of law." The party seek- ing summary judgment bears the initial burden of showing the absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). However, as the United States Supreme Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), Rule 56(e) itself provides that "a party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [the] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.’" "The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine fac- tual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250; see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment "should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law." (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A. Appellant Whitfield contends that the district court erred when it granted summary judgment on the basis of its ruling that Whitfield’s evidence of damages was too speculative to support a jury verdict. Whitfield argues that the evidence proves that he lost commission income of at least $347,500.00 between 1987 and 1996. Appellant also argues, in the alternative, that his loss can be reasonably calcu- lated at $167,500.00 under a more conservative method. Appellant Whitfield further contends that he lost at least $89,998.00 in promo- 8 WHITFIELD v. JOHN BOURNE COMPANY tional expenditures in competing for sales of DVA properties that were sold through the wrongful activities of the appellees. Appellant argues that, because the appellees’ wrongful conduct has limited his ability to prove damages, he should be held to a lower standard of cer- tainty when proving damages. Appellees respond that appellant’s evi- dence of damages is speculative because it is predicated upon assumptions and questionable probabilities. Appellees further argue that appellant’s evidence of damages is flawed because of several fac- tors, including fluctuation in the markets, failure to account for spikes in the number of home sales due to military base closings, and the flat assumption that each sale made by the appellees in the markets came at the direct expense of Whitfield. Moreover, appellees assert that appellant has misconstrued applicable case law and the "reasonable certainty" standard. The most recent clarification of South Carolina’s standard for recovery of lost profits comes in Global Prot. Corp. v. Halbersberg, 503 S.E.2d 483 (S.C. Ct. App. 1998). The Global court reiterated: The law does not require absolute certainty of data upon which lost profits are to be estimated, but all that is required is such reasonable certainty that damages may not be based wholly upon speculation and conjecture, and it is sufficient if there is a certain standard or fixed method by which prof- its sought to be recovered may be estimated and determined with a fair degree of accuracy. Id. at 487 (citing Beck v. Clarkson, 387 S.E.2d 681, 684 (S.C. Ct. App. 1989) (quoting South Carolina Fin. Corp. of Anderson v. West Side Fin. Co., 113 S.E.2d 329 (S.C. 1960))). The crucial requirement is that lost profits be "established with reasonable certainty." South Carolina Fin. Corp., 113 S.E.2d at 336. The Global court also found: Proof may be established through expert testimony, eco- nomic and financial data, market surveys and analyses, busi- ness records of similar enterprises, comparison with profit performance of businesses similar in size, nature and loca- tion, comparison with profit history of plaintiff’s successor, comparison of similar business owned by plaintiff himself, WHITFIELD v. JOHN BOURNE COMPANY 9 and use of economic and financial data and expert testi- mony. 503 S.E.2d at 487 (citing Drews Co. v. Ledwith-Wolfe Assocs., 371 S.E.2d 532 (S.C. 1988)). South Carolina courts have referred to the method of proving profits by comparing businesses similar in size, nature, and location as the "yardstick" method. See Drews Co., 371 S.E.2d at 536. Appellant Whitfield asserts that his lost income in the DVA market may be measured by the "yardstick" method by comparing the par- ties’ performances in the HAP and HUD markets. Appellant Whit- field has testified that the DVA, HAP and HUD sales programs are similar in that: (1) the purpose of each is to facilitate the resale of homes by a government agency; (2) homes are sold on the limited ini- tial bid period (ten or twenty days) with a first-come-first-served pro- cedure after that initial bid period; (3) each program pays similar rates of commission (five percent or six percent) with the entire commis- sion going to the selling broker and (4) each program keeps repair and pest inspection reports confidential from bidders. Whitfield offers several facts in support of his calculation of losses: (1) During 1993 and 1994, when only the Bourne Com- pany served as PM broker, Bulwinkle’s sales declined from 60 properties in 1992 to 23 properties in 1993 and to 21 properties in 1994. Once Bulwinkle was reinstated as a PM broker in 1995, Bulwinkle’s sales increased to 51 for 1995. (2) In the HUD and HAP programs in which appellant alleges Bourne and Bulwinkle companies enjoyed no advan- tage, Whitfield sold 81 homes from 1993 until 1998, while Bulwinkle sold 19 homes and Bourne sold seven homes for the same period. In the HUD program, Whitfield sold 20 HUD homes, Bulwinkle sold 18 homes and Bourne sold six homes in total for the years 1992, 1995, 1996 and 1997. (3) From 1987 to 1995, in the DVA program, Bulwinkle sold 286 DVA homes and Whitfield sold 147 homes. 10 WHITFIELD v. JOHN BOURNE COMPANY Based upon that information, appellant Whitfield estimates that he lost at least 139 sales over the period and, at an average commission of $2,500.00 per sale, he lost $347,500.00 in commission income. Appellant contends that on the basis of these market comparisons, a jury could reasonably conclude that but for the appellees’ unfair activ- ities in selling DVA properties, Whitfield’s DVA sales would have at least equaled the DVA sales of Bulwinkle and Bourne. Applying the "yardstick" method, appellant believes that a reasonable jury could find that he lost $347,500.00 in commission income between 1987 and 1996. Applying the reasonable certainty test, this Court cannot find that appellant Whitfield has presented evidence of damages that could support a jury verdict. A "yardstick" comparison between the DVA, the HUD and the HAP markets does not allow this Court to reason- ably calculate damages. Although the markets are in a similar loca- tion, they are of a different size and nature that make them difficult to compare. Moreover, appellant has not considered and accounted for the differences inherent in the markets in his comparison. Appel- lant makes general comparisons between the number of sales in the DVA, HAP and HUD markets, but the disparity in sales numbers could be explained by many reasons other than any unfair practices by appellees in the DVA market. Appellant has failed to establish any way in which the efforts and performance of appellant and the appel- lees in their respective markets were comparable. Moreover, the dis- parity in sales is not necessarily attributed to the actions of appellees. There are other realtors and agencies involved in the sale of properties and it is not a viable assumption that each and every sale by the appel- lees worked to the disadvantage and at the expense of appellant. Although appellant relies on Global as an example of market com- parisons, the facts in that case were different. In Global, a manufac- turer of condoms was permitted to compare sales in two nearly identical markets to show the losses it sustained when another com- pany distributed glow in the dark condoms, an identical product, in wrapping identical to that of the plaintiff. 503 S.E.2d at 487. In the Global case, the markets were nearly identical because both com- prised large coastal vacation destinations. Additionally, the nearly identical nature of the products on the market permitted an easier comparison as well. WHITFIELD v. JOHN BOURNE COMPANY 11 Even if the "yardstick" method applied in this case, appellant’s numbers and estimates do not prove damages to a reasonable cer- tainty. Statistics are not sufficient alone to establish damages in this case. See Palmetto State Med. Ctr., Inc. v. Operation Lifeline, 117 F.3d 142, 149 (4th Cir. 1997) (finding evidence of damages to be speculative and insufficient as a matter of law to establish financial losses without an inquiry into the correlation between statistics and the conduct of a defendant). Moreover, appellant relies on a handwrit- ten chart detailing DVA sales commissions and estimated loss of mar- ket share from the alleged unfair practices. Appellant Whitfield admitted at his deposition that the document was put together quickly and may be flawed and based on certain estimates. This Court also questions the use of the statistics to demonstrate loss of expected mar- ket share because it is difficult to determine whether appellant Whit- field would have gained a measurable amount of market share had there been no referral agreements in place. In the alternative, appellant Whitfield also seeks to prove lost prof- its by comparing the profit history of similar businesses that he has conducted. Accordingly, Whitfield points to his involvement in the HAP market. During appellant Whitfield’s three and one half year experience in the HAP market, he had an average of 23 HAP sales per year, but averaged only 16.3 DVA sales per year between 1987 and 1996. Appellant believes that under "conservative" methodology, that evidence demonstrates that he should have a larger number of sales in the DVA market and that he lost at least $167,500.00 in com- mission income due to the unfair conduct of appellees. The comparison of the profit history of Whitfield’s involvement in the HAP market does not establish damages to a reasonable certainty. Appellant Whitfield’s three and one half year experience with the HAP market, although similar in sales procedure to that of the DVA market, is not comparable because of fluctuation in the real estate market and the influence of the glut of housing placed on the market due to the Charleston naval base closure. Moreover, on a base level, statistics from a three and one half year specialized market with fluc- tuations are too tenuous to compare to the ten-year DVA market. Appellant also seeks recovery for lost profits and loss of benefit of promotional expenditures. Whitfield asserts that he lost $23,023.00 12 WHITFIELD v. JOHN BOURNE COMPANY for advertising and $3,225.00 for courier services, postage, express mail, and credit report fees in submitting offers on properties. Appel- lant further asserts that he has lost money for photographing proper- ties and for long distance telephone calls as well as the benefit of his own time invested in training agents who left his employ as a result of the improper conduct of the PM brokers which he values in excess of $63,750.00. Again, appellant cites the Global case in which the court held that an award of lost profits was not the full measure of Global’s damages and permitted promotional costs and costs associ- ated with developing and marketing its product. 503 S.E.2d at 488. As the appellees point out, however, Global involved a trademark infringement and the Global court’s determination that "recoverable damages include compensation for all injury to plaintiff’s property or business which is the nature and probable consequence of defendant’s wrong" is limited to trademark infringement cases. Id. Because appel- lant has presented this Court with no authority supporting the exten- sion of South Carolina law governing the relatively narrow field of recoverable trademark infringement damages to the instant facts, appellees are still entitled to summary judgment on this issue. Finally, appellant argues that he was "hampered" in his proof of damages by the wrongful conduct of the appellees and that he should be held to a lesser standard. Appellant relies on Minter v. Goct, Inc., 473 S.E.2d 67 (S.C. Ct. App. 1996). In Minter, this Court stated: Where the wrongful act of the defendant is of such nature as to prevent determination of the exact amount of damages, the defendant is not allowed to insist on absolute certainty, but only that the evidence show lost profits by reasonable inference. Id. at 70 (quoting 22 Am. Jur. 2d Damages § 177 (1965)). Although that case permitted an inference of damages, that holding is not at odds with determining damages by a "reasonable certainty" but reaf- firms that each case should be considered on an individual basis. Minter also reiterates that "while proof with mathematical certainty is not required, the amount of damages cannot be left to conjecture, guess, or speculation." Id. In this case, appellant has not been able to prove damages to a reasonable degree of certainty and much has been WHITFIELD v. JOHN BOURNE COMPANY 13 left to conjecture, guess and speculation. Accordingly, this Court upholds summary judgment in favor of all appellees. B. Appellant Whitfield also contends that the district court erred when it granted summary judgment to appellees on the claim for civil con- spiracy on the basis of its ruling that Whitfield was required to dem- onstrate that appellees conspired for the purpose of injuring Whitfield in particular. Under South Carolina law: Civil conspiracy . . . consists of three elements: (1) a combi- nation of two or more persons, (2) for the purpose of injur- ing the plaintiff, (3) which causes him special damage. Lee v. Chesterfield Gen. Hosp., Inc., 344 S.E.2d 379, 382 (S.C. Ct. App. 1986). Moreover, "[a] conspiracy is actionable only if overt acts pursuant to the common design proximately cause damage to the party bringing the action." Future Group, II v. Nationsbank, 478 S.E.2d 45, 51 (S.C. 1996). Although appellant Whitfield contends that South Carolina law does not require that a defendant have the specific intent to injure a particular plaintiff in civil conspiracy, appellant has presented this Court with no supporting South Carolina authority. Instead, appellant cites antitrust cases, such as Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982), for the proposition that a plaintiff does not have to prove he is the "target" of a conspiracy. This Court does not find appellant’s attempt to parallel antitrust law and South Carlina conspir- acy law to be persuasive, particularly in light of the plain language of various South Carolina cases holding that the purpose of a civil con- spiracy must be "injuring the plaintiff thereby causing him special damage." Future Group, 478 S.E.2d at 50 (emphasis added). More- over, South Carolina case law reflects that there must be specific intent to injure a particular plaintiff. Id. at 51 (finding that a civil con- spiracy claim could not be maintained against defendant, in part, because defendant did not even know of plaintiff’s existence in rela- tion to its actions); Lee, 344 S.E.2d at 382-83 (examining cases in which primary purpose or object of conspiracy was to injure particu- 14 WHITFIELD v. JOHN BOURNE COMPANY lar plaintiff). Therefore, this Court upholds the grant of summary judgment on this issue. C. Appellant Whitfield contends that the district court erred in grant- ing summary judgment to referral appellees on the unfair trade prac- tices claim on the basis of its ruling that Whitfield has failed to demonstrate that the actions of the referral appellees were capable of repetition. Under South Carolina law, an unfair trade practice must have adverse affects on the public interest. See Daisy Outdoor Adver. Co. v. Abbott, 473 S.E.2d 47, 49 (S.C. 1996). One method of showing an adverse affect on the public interest is by proof that the unfair practice has a potential for repetition. Id.; Haley Nursery Co. v. For- rest, 381 S.E.2d 906, 908 (S.C. 1989). A party may argue that an action is capable of repetition: (1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence, or (2) by showing the company’s procedures create a potential for repetition of the unfair and deceptive acts. Daisy Outdoor, 473 S.E.2d at 51 (cites omitted); see Crary v. Dje- belli, 496 S.E.2d 21, 23 (S.C. 1998). Those are not, however, the only means for showing potential repetition and each case must be evalu- ated on its own merits. Id. Although appellant argues that the alleged referrals and "kick- backs" in this case occurred far more frequently than the two "similar acts" in Daisy Outdoor, this Court does not find that appellant has established that appellees’ alleged acts have an adverse affect on the public interest. In Daisy Outdoor, the two incidents in which a bill- board was blocked by a competitor’s billboard clearly showed a potential for repetition and a likelihood that such actions may occur in the future absent deterrence. 473 S.E.2d at 51. In this case, even if this Court accepted that there were multiple instances of referrals and kickbacks, appellant has not shown that such unfair practices would continue absent deterrence or that any company’s procedures created a potential for repetition of the alleged unfair and deceptive WHITFIELD v. JOHN BOURNE COMPANY 15 acts. The referral agreement complained of by appellant has expired and the rules governing DVA homes have been changed to preclude such arrangements in the future. Although there may be other meth- ods to show adverse affect on the public interest or other methods to show a potential for repetition, appellant has not presented this Court with any evidence that would lead this Court to find that appellant has properly alleged an unfair trade practices claim against referral appel- lees. Accordingly, this Court upholds the grant of summary judgment on this issue. D. Appellant Whitfield contends that the district court erred in grant- ing summary judgment to referral appellees on the negligence claim on the ground that they owed no duty to Whitfield. Appellant argues that he can maintain a negligence action against the referral appellees because the referral appellees have a duty to him arising from their referral contract with John Bourne Company. Specifically, appellant contends that there was a genuine issue of fact that it was foreseeable that the referral agreement would proximately cause harm to appellant Whitfield. The question of whether a defendant owes a duty, the breach of which may constitute negligence, is, however, a question of law, not of fact. See Araujo v. Southern Bell Tel. and Tel. Co., 351 S.E.2d 908, 910 (S.C. 1986). In this case, appellant Whitfield is not a party to any contract between referral appellees and John Bourne Company and there is no statute from which a duty could conceivably arise. More- over, this Court cannot find that Whitfield is a third-party beneficiary of any referral agreement. Although appellant does argue that this Court could construe a duty based upon the forseeability of harm to him under these circumstances, appellant has presented this Court with no supporting authority. Rather, the cases cited by appellant in support of extending a duty of care involved special relationships between parties that are significantly different than the relationship between the parties in this case.* In the absence of cited authority, *In Jensen v. Anderson County Dep’t of Soc. Servs., 403 S.E.2d 615 (S.C. 1991), the South Carolina court dealt with the narrow area of child 16 WHITFIELD v. JOHN BOURNE COMPANY appellant has not persuaded this Court to take action that would define a new duty under negligence law. Accordingly, this Court upholds the grant of summary judgment on this issue. E. Finally, appellant alleges that the district court erred in granting summary judgment on Whitfield’s cause of action seeking injunctive relief under the Sherman Antitrust Act. Section 16 of the Clayton Act, 15 U.S.C. § 26, empowers a court of the United States to grant injunc- tive relief against threatened loss or damage caused by a violation of the "antitrust laws." See T.S. Alphin v. Henson, 552 F.2d 1033, 1034 n.1 (4th Cir. 1977). Antitrust law is defined by the Clayton Act to include the Sherman Act. Id. at 1034. Although appellant argues that the record discloses sufficient evidence to create a genuine issue of material fact as to threatened injury, this Court does not find that appellant has shown reoccurring or repetitive acts of anti-competitive activity or the threat of such activity that would support an injunction. Accordingly, this Court upholds the award of summary judgment to all appellees on this issue. III. When reviewing a district court’s discovery rulings, this Court has held that: If the claim is of error in underlying factfinding which infected the ultimate decision, review must proceed under the clearly erroneous standard; if of error of law infecting the ultimate decision, under the de novo review standard. Only if the claim of error goes exclusively to the impropri- welfare cases and an assumed public duty by officials involved in such cases. Barker v. Sauls, 345 S.E.2d 244 (S.C. 1986), permitted an employee to sue his employer’s insurance broker regarding coverage that had a direct affect on the employee. Finally, appellant cites Terlinde v. Neely, 271 S.E.2d 768 (S.C. 1980), which dealt with the extension of warranties on a property. WHITFIELD v. JOHN BOURNE COMPANY 17 ety of an ultimate exercise of available discretion is review solely under the abuse of discretion standard. See Watson v. Lowcountry Red Cross, 974 F.2d 482, 485 (4th Cir. 1992) (citing United Food & Commercial Workers v. Marval Poultry Co., 876 F.2d 346, 351 (4th Cir. 1989)). A. Appellant Whitfield alleges that the district court erred in failing to require appellee PM brokers to disclose the identity of purchasers of DVA properties sold by them during the relevant period, particularly given the district court’s ruling on damages. Appellant Whitfield sought the names of the individuals who had purchased DVA proper- ties through the appellee PM brokers so that appellant could deter- mine whether those purchasers had received "insider information" concerning the DVA properties that enabled them to submit a winning bid. Appellant also argues that the information would enable him to collect more information regarding any wrongdoing on behalf of appellees and to more exactly determine and prove damages. Appel- lees resisted appellant’s attempt to discover such information and argued that appellant had presented no need for that information and no proof of damages that would permit appellant to discover such information or that would outweigh the privacy interests of the appel- lees and their clients. The district court extensively examined the dis- covery issues during several hearings. After weighing the prejudice and privacy interests of the appellees against the possible prejudice to the appellant, the district court determined that such information was not discoverable because there would be prejudice to appellees in dis- closing the names and because appellant had made no showing of injury. On appeal, appellant again argues that he requires the purchasers’ names to verify that appellees committed the unfair acts alleged in the complaint. Appellant also argues that the information would be neces- sary at trial to assist in showing damages. Appellees respond that appellant has raised no issue or facts on appeal that would reveal an abuse of discretion on the part of the district court. This Court cannot find that the district court abused its discretion or committed any error. Although appellant cites Palmetto State Med. 18 WHITFIELD v. JOHN BOURNE COMPANY Ctr., Inc. v. Operation Lifeline, 117 F.3d 142 (4th Cir. 1997), in sup- port of his argument that the district court’s ruling was extremely prejudicial in light of the district court’s holding that appellant’s evi- dence of damages was too speculative to support a jury verdict, that case is inapposite. Although the Palmetto case discusses the necessity of certain witnesses, the case does not address discovery or discovery disputes. Appellant has presented this Court with no authority nor with any argument that the district court abused its discretion or that the district court erred in any way. Accordingly, the district’s court decision not to permit discovery of the purchasers’ names is affirmed. B. Appellant Whitfield asserts that the district court erred in failing to require appellees, David Wertan and Fred Rice, to produce their per- sonal bank account records. Because a memorandum was circulated reminding various appellee real estate agents that all referral fees should be deposited in appropriate accounts, appellant sought to dis- cover those personal bank account records to determine whether some referral fees did not go through the appropriate accounts. The district court held a hearing with the parties and addressed the matter. Appel- lees argued that such discovery was unnecessary and intrusive based upon other discovery that had been completed by the appellant. The district court did not permit the discovery of the bank accounts because it determined that there were less intrusive means to discover the information. On appeal, appellant contends that the discovery of bank account records is a routine matter and necessary in this case. Appellant alleges that he has been prejudiced by the district court’s decision because his ability to prove injury and resulting damages has been curtailed. Again, appellees respond that appellant has produced no facts or issues on appeal that reveal or address any abuse of discretion on the part of the district court. After examining the hearing transcript, this Court cannot find that the district court abused its discretion or erred in any manner. The memorandum reminding appellees about appropriate deposit of fees is not necessarily evidence that there had been inappropriate deposits. Moreover, appellant deposed certain witnesses who stated that no fees WHITFIELD v. JOHN BOURNE COMPANY 19 were channeled into inappropriate accounts, that appellant possessed canceled checks revealing the appropriate deposit of the fees, and that appellant could seek additional canceled checks for verification. Appellant was permitted several avenues to determine whether any fees were deposited into inappropriate accounts and has not shown that he was unduly prejudiced. The district court was not in error and did not abuse its discretion when it defined the bounds of discovery on this issue. Therefore, the district court’s ruling prohibiting discov- ery of the bank account records is affirmed. C. In appellant Whitfield’s statement of issues presented for review, appellant alleges that the district court erred in granting the amended motion of the DVA to quash appellant’s subpoena for records of the DVA Office of Inspector General’s investigation of property manage- ment brokers. This issue is not, however, reflected in the table of con- tents and is not discussed in the text of appellant’s brief, appellees’ brief or appellant’s reply brief. Although this Court notes that the dis- trict court addressed this issue during the February 25, 1998 hearing with the parties, this Court will not address the merits of this issue because it has not been argued by the parties. AFFIRMED	{ "pile_set_name": "FreeLaw" }
349 F.2d 294 The MERCHANTS COMPANY, Appellant,v.BARTLETT AND COMPANY, GRAIN, Appellee. No. 21727. United States Court of Appeals Fifth Circuit. Aug. 4, 1965. Billy H. Quin, of Brunini, Everett, Grantham & Quin, Vicksburg, Miss., for appellant. Henry G. Eager, Kansas City, Mo., William E. Suddath, Jr., Jackson, Miss., Watkins & Eager, Jackson, Miss., Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, Mo., of counsel, for appellee. Before BROWN and BELL, Circuit Judges, and HUNTER, District Judge. GRIFFIN B. BELL, Circuit Judge: 1 This case comes to us for the second time. See Bartlett & Company, Grain v. The Merchants Company, 5 Cir., 1963, 323 F.2d 501. The question, among others, before the court at that time was the effect of an inspection certificate issued by a federally-licensed grain inspector under a contract providing that the inspection in question was to be conclusive as between the parties on the issue of the grade of corn purchased by Merchants from Bartlett. The purchase involved four barge loads of No. 2 yellow corn totalling 120,000 to 125,000 bushels. Only one of the barge loads, 31,250 bushels, is in issue. Inspection in accordance with United States grain standards at the point of origin was the method chosen by the parties to settle whether the tendered corn conformed to the grade requirement of the contract. 2 The corn was loaded at Nebraska City, Nebraska. It was certified as No. 2 yellow by the inspector and Merchants paid Bartlett for the corn on the basis of the certification while it was en route and before making its own inspection. Merchants in turn sold the corn to O.J. Walls as No. 2 yellow for delivery at Guntersville, Alabama. Walls refused to accept the corn upon arrival of the barge at Guntersville on the ground that it was below the contract grade. A federal inspection made at that time disclosed that approximately half of the corn was grade No. 1 while the other half was No. 4 The grade depended on the amount of cracked corn and foreign matter in the sample taken. This inspection also disclosed that some of the foreign matter was wheat, sour, rotten and molded at the time of this latter inspection, and because of this and the July heat it was necessary to remove the corn from the barge and have it reworked as quickly as possible. Walls agreed to render this service for the account of Merchants, and this suit involves the amount paid Walls by Merchants for the reworking. 3 Judgment was rendered for Merchants on the prior trial on a finding by the District Court that the barge was loaded in Nebraska City with an excessive amount of moldy wheat which contaminated the cargo, and that the inspector's certification at origin was erroneous and inaccurate, and failed to reveal the true condition of the cargo. The District Court ruled that Merchants was therefore not bound by the certificate. 4 On appeal, we applied the law of Missouri to the question presented in view of the negotiations for and the acceptance of the contract in Missouri. We pointed out that this was not the ordinary situation where a buyer has the right to inspect goods purchased from a distant vendor. Instead, it was a case where the parties had agreed to abide by the judgment of a third person, and that judgment, if honestly exercised, is binding on the purchaser. We also pointed to the Missouri rule that the inspection certificate of the third party under a contract of the type in question is binding on both parties in the absence of fraud, or such gross mistake as would imply bad faith. Massman Const. Co. v. Lake Latawana Association, 1948, 240 Mo.App. 469, 210 S.W.2d 398. The result of such an inspection may not be set aside because of mistake. Rogers v. Rehard, 1906, 122 Mo.App. 44, 97 S.W. 951; Federal Grain Company v. Hayes Grain and Comm'n Co., 1923, 161 Ark. 51; 255 S.W. 307. And a mere difference in grade as determined by a destination inspection compared to the origin inspection will not show fraud or gross mistake from which fraud or bad faith could be inferred. Gratiot St. Warehouse Co. v. Wilkinson, 1902, 94 Mo.App. 528, 68 S.W. 581; Federal Grain Company v. Hayes Grain and Comm'n Co., supra. See also Alabama Chemical Company v. International Agriculture Corp., 1926, 215 Ala. 381, 110 So. 614. 5 Being thus of the view that the District Court had applied an improper rule, i.e., mere error on the part of the inspector, we reversed and remanded so that the court might ascertain whether fraud, bad faith, or gross mistake amounting to fraud existed which would warrant setting the certificate aside. The opinion stated: 6 '* * * the district court may wish to consider whether the difference between the grade certified by the inspector and the actual grade of the corn at the time of loading is so great as to constitute a mistake which would show fraud on the part of the inspector. Also, the court might consider whether the alleged deviations from prescribed inspection standards and the customary practices are flagrant enough to show bad faith or failure to exercise an honest judgment. If these show only a simple mistake or a mere error in judgment, the certificate should stand as conclusive.' 323 F.2d at 509. 7 On remand, the parties stipulated that the matter would be resubmitted without additional evidence. Upon reconsideration in the light of the standard laid down by this court, judgment was rendered for Bartlett instead of Merchants. The District Court concluded that the evidence was insufficient to support a charge of fraud or bad faith, even though it was clear from the evidence that the certificate of the inspector was erroneous. We find ample support for this conclusion in the record and for that reason it must stand. 8 The inspection was made in the customary manner. It disclosed that some of the corn being loaded in the barge was of grades 3 and 4. This condition was corrected by adding No. 1 corn and the inspector was of the opinion that the load would average out as No. 2 and thus meet the specification of the contract. The validity of his judgment, based on the same samples, was substantiated in due course by the next higher inspection authority, the Federal Grain Supervisor in Omaha. The sum of the situation demonstrates an error in the certificate. The findings and conclusions of fact which in substance were that the proof fell short of sustaining a charge of fraud, bad faith, or such gross mistake as would amount to fraud are not clearly erroneous and there the matter ends from a factual standpoint. Rule 52(a), F.R.Civ.P. Nor do we find any error from the standpoint of law. 9 Affirmed. JOHN R. BROWN, Circuit Judge, (concurring): 10 As we are committed, wisely I think, to the principle that one review of the evidence is enough in a diversity case, Lincoln National Life Ins. Co. v. Roosth, 5 Cir., 1962, 306 F.2d 110, and the scope of further fact findings was a narrow one under our prior mandate, I concur that F.R.Civ.P. 52(a) prevents us from overturning the District Court's action. I do so not without substantial misgivings. For fraud in law, if not fraud in fact, seems plainly revealed. No one had to know better than the shipper the quality of the grain being loaded and delivered. The facts show spectacularly that out of a barge load of 1,750,000 pounds, over one-half, 900,000 pounds graded 4 and 850,000 pounds graded 1. The so-called expert grader proceeded on the naive assumption that if these substantial quantities of grade 4 (loaded in bow hatches 1, 2, 3, 4, and 5) were mixed with other grain grading 1 loaded elsewhere in the barge, the mass would grade out as grade 2. But it was not mixed. It was not supposed to be mixed in the barge. And on the appellant's theory, twice sustained by the District Court, it was the presence of the forbidden impurities accounting for the lowered grade which caused the damage by moisture, etc., not only to that portion but, worse, to all remaining grain in the barge. When, in determining whether 'deviations from the prescribed inspection standards' by the inspector were 'flagrant enough to show bad faith or failure to exercise a honest judgment,' it is tested on an objective basis, not the subjective one of the inspector's good or evil heart, the proper answer is so plainly indicated that I am apprehensive that the trial Judge reached his now binding conclusion from an incorrect legal standard. But as this is not expressly revealed, F.R.Civ.P. 52(a) compels affirmance.	{ "pile_set_name": "FreeLaw" }
892 S.W.2d 242 (1995) 319 Ark. 390 Frank Gordon BOYLE, Appellant, v. A.W.A., INC., Formerly U.R.G., Inc., Appellee, Richard Andrew Wagner, Cross-Appellant. No. 94-712. Supreme Court of Arkansas. February 6, 1995. 243 Joe Hardegree, Mena, for appellant. William G. Snowden, Forrest City, for Richard A. Wagner. John C. Gregg, Batesville, for A.W.A. BROWN, Justice. Appellant Frank Gordon Boyle appeals a foreclosure decree which grants appellee A.W.A., Inc., formerly U.R.G., Inc., judgment against cross-appellant Richard Andrew Wagner and orders a foreclosure sale of his one-half interest in land located in Izard County. After the parties' briefs were filed, A.W.A. filed a motion to strike Wagner's brief, which was filed on the same date as A.W.A.'s brief in response, on grounds that Wagner was not a true cross-appellant but rather had aligned himself with the positions taken in appellant Boyle's brief. A.W.A. further contended that it did not have an opportunity to respond to Wagner's brief. This court determined that it would decide A.W.A.'s motion at the time that the case was submitted. On February 25, 1976, Frank and Jessie Boyle deeded four tracts of land in Izard County to their two sons, Gordon Boyle and Richard Wagner, as co-trustees of the Boyle Trust. The beneficiaries of the trust under the Trust Indenture establishing the Boyle Trust were the settlors, Frank and Jessie Boyle. The Trust Indenture provided that the net income from the land would be paid to Frank and Jessie Boyle or to their survivor for life and that upon the death of both the trust would terminate and the land would be distributed to the two sons "free from trust." The Trust Indenture also contained a spendthrift clause against the voluntary and involuntary alienation of the land by trust beneficiaries. Frank Boyle died in 1981. Jessie Boyle died on July 12, 1991. Her will acknowledged the Boyle Trust and verified the fact that under the trust the Izard County land would vest equally in her two sons upon her death. In 1983, Richard Wagner and Gordon Boyle executed a promissory note in favor of A.W.A.'s predecessor, U.R.G., in the amount of $320,000. In 1987, Wagner and his wife executed a Note Modification Agreement in the amount of $325,000 in favor of U.R.G. and granted it a mortgage in the Izard County real property. Wagner defaulted on the promissory note, and in 1993 U.R.G.'s successor, A.W.A., filed a complaint in foreclosure 244 on the Izard County tracts naming Wagner and his spouse, as well as Gordon Boyle and his spouse, as defendants. After A.W.A. filed an amended complaint, Boyle counterclaimed against A.W.A. and sought to nullify any mortgage on the land due to the spendthrift trust and due to the fact that, at the time of the mortgage, Wagner had no beneficial interest in the land. Boyle further cross-claimed against Wagner to remove him as co-trustee of the Boyle Trust, which Boyle contended was still in existence. Boyle, Wagner, and A.W.A. all moved for summary judgment. The trial court denied the motions of Boyle and Wagner but granted A.W.A.'s motion and entered its foreclosure decree on April 4, 1994. In that decree, the court found that the Boyle Trust terminated upon Jessie Boyle's death on July 12, 1991, and that title to the Izard County land vested absolutely in Gordon Boyle and Richard Wagner on that date with each receiving an undivided one-half interest. The court ordered that Wagner's one-half interest in the land be sold in satisfaction of the A.W.A. debt. We first address the issue of Wagner's brief filed as cross-appellant. The foreclosure decree was entered in this matter on April 4, 1994. Gordon Boyle filed his notice of appeal on April 14, 1994. Richard Wagner filed his notice of cross-appeal on May 3, 1994. A cross-appeal, typically, is an appeal by the appellee who seeks something more than was received in the trial court. Black's Law Dictionary, p. 375 (6th Ed.1990); Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991). It must be filed within 10 days of that first notice of appeal except that it may be filed at any time within 30 days from the date of the decree which is the subject of the appeal. Ark.R.App.P. 4(a). Wagner's notice of cross-appeal was timely filed under our rule. In reading Wagner's brief on appeal, however, it is clear that far from assuming the posture of appellee or contesting any decision in favor of his brother, appellant Boyle, he associates himself with the arguments made by appellant Boyle. He, thus, occupies the status of an appellant irrespective of how he styled himself in either his notice of appeal or on the cover of his brief. He failed to file his brief in timely fashion as an appellant but filed his brief on the same date that A.W.A.'s brief as the appellee was recorded. A.W.A., as a consequence, had no opportunity to respond to Wagner's arguments. This was inherently unfair to A.W.A., especially when Wagner was embracing the same positions as the appellant. We conclude that Wagner's brief was not timely filed, and we strike it. We turn next to Boyle's first point on appeal that the trial court erred in finding that the Boyle Trust terminated upon the death of Jessie Boyle. We discern no error in the court's finding. The terms of the Trust are clear and precise in stating that upon the death of the parents the trust would terminate and that the land would be distributed to the two sons "free from trust:" ITEM VI. The original trust created by this instrument shall terminate upon the death of the survivor of the Grantors and all property of said trust shall, subject to the limitations in Item VII below, then be distributed to Grantors' children, Frank Gordon Boyle and Richard Andrew Wagner, free from trust, and in the event that either of said children is not then living, then to his or her descendants, per stirpes.[1] Jessie Boyle's will further recognizes and verifies that fact and speaks in terms of the land's vesting in her sons at her death, which occurred on July 12, 1991: For the purpose of verifying the same, I specifically recognize the inter vivos trust previously executed by me and by my husband, Frank Betts Boyle, covering certain real property situated in the State of Arkansas, wherein the said FRANK GORDON BOYLE and RICHARD ANDREW WAGNER are equal beneficiaries following the deaths of my husband and myself. I now confirm that my interest in those properties in the State of Arkansas which are so specifically described in the trust instrument will in fact vest at my death in *245 such sons, according to the trust provisions. We do not view Jessie Boyle's use of the term "beneficiaries" in her will as proof that the trust should continue after her death, as Boyle contends. On the contrary, she referred to the fact that the trust provisions would control and that the land would vest in her sons on the date of her death according to the trust. The trial court correctly found that on that date the trust terminated, and each son took an undivided one-half interest in the property as a tenant in common. Prior to that date, the sons' respective interests in the land had not vested but were merely contingent upon their surviving their mother. Boyle next urges that the trial court erred in failing to enforce the spendthrift clause in the Boyle Trust which, according to Boyle, would void A.W.A.'s mortgage on Wagner's land. We disagree. Boyle has no standing to raise an issue regarding Wagner's property in which he has no interest. See Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992). Further, it is only when a person is definitely aggrieved that there can be an appeal. Arkansas State Highway Comm'n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1966); Beard v. Beard, 207 Ark. 863, 183 S.W.2d 44 (1944); First National Bank v. Yancy, 36 Ark.App. 224, 826 S.W.2d 287 (1991). The foreclosure decree specifies that A.W.A.'s rights as a creditor only pertain to Wagner's one-half interest in the land, and Boyle has failed to show us on appeal what his interest in Wagner's one-half interest in the land might be. But there are additional reasons to sustain the trial court's finding on this issue. The Boyle Trust terminated at Jessie Boyle's death in 1991, and the land did not vest in Wagner until that point. Accordingly, Wagner possessed no interest as a beneficiary in the land in 1987 which would subject him to the spendthrift clause at the time he mortgaged the land. It was only upon the termination of the trust in 1991 when Wagner received a vested one-half interest in the land that the mortgage attached under the doctrine of after-acquired property. See Ark.Code Ann. § 18-12-601 (1987); Stone v. Morris, 177 Ark. 745, 7 S.W.2d 796 (1928); Kline v. Ragland, 47 Ark. 111, 14 S.W. 474 (1886). Even if he had had some beneficial interest in the land in 1987, there is also the fact that the spendthrift clause in the Trust Indenture states that it had no application once the trust ended: Moreover, the foregoing provisions of this Section B [Spendthrift Clause] shall cease to apply to the remaindermen of any trust created by this instrument on the date when the trust in which they are interested terminates pursuant to other provisions of this instrument. In sum, Boyle's second point has no reasonable foundation to support it. For his final point, Boyle urges that had he or his mother known about Wagner's mortgage of the land to A.W.A.'s predecessor in 1987, they might have taken some remedial action to void it. He urges that the trial court did not take this factor into consideration in its decree when it found that no one questioned the validity of the mortgage before the Boyle Trust terminated in 1991. We give this point little credence for reasons already stated. Wagner was not a trust beneficiary in 1987 and, hence, the spendthrift clause had no application to him. And, again, Boyle appears to have no standing to raise this point because his interest in the land to be foreclosed is not affected by the trial court's decree. See Insurance from CNA v. Keene Corp., supra. We conclude that there is no basis for reversing the trial court on this point. Motion to Strike Cross-Appellant's brief is granted. Affirmed. NOTES [1] The Trust Indenture did provide that the trust would continue for beneficiaries under age 30, but both Boyle and Wagner had exceeded that age.	{ "pile_set_name": "FreeLaw" }
912 So.2d 1234 (2005) ALLEN v. STATE. No. 3D05-789. District Court of Appeal of Florida, Third District. November 3, 2005. Decision without published opinion. Vol. dismissed.	{ "pile_set_name": "FreeLaw" }
USCA1 Opinion December 13, 1995 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______________________ No. 95-1313 ANDRE GRENIER, Plaintiff - Appellant, v. CYANAMID PLASTICS, INC., Defendant - Appellee. _______________________ ERRATA SHEET ERRATA SHEET The opinion of this Court issued on November 27, 1995, is amended as follows: 1. On page 12, change footnote 3 to read: change Both parties refer us to this Guidance although it was published after the decision by Cyro to reject Grenier's application. We note that a revised version of the Guidance was issued October 10, 1995, after oral argument in this case. See Equal Employment Opportunity Comm'n, Enforcement ___ ___________ Guidance: Pre-Employment Disability-Related Questions and _________________________________________________________ Medical Examinations (Oct. 10, 1995) (reprinted in EEOC ____________________ ____ Compl. Man. (CCH) 6093, at 5371). ___________ 2. On page 13, lines 2-3, delete this parenthetical: delete (reprinted in EEOC Compl. Man. (CCH) 6903, at 5371, and in ________________ Americans with Disabilities Act Manual (BNA) No. 29) ______________________________________ 3. On page 22, end of 6th line from bottom, add "1st Cir." to add parenthetical, so that it reads: (1st Cir. 1995) 4. On page 24, 5th line from bottom, end of parenthetical, change "at 355" to "at 347-48". change 5. On page 25, end of line 4, insert a footnote: insert On October 10, 1995, subsequent to oral argument, the EEOC issued a new Guidance. Although neither party has argued that we ought to consider this newest guidance, we note that the EEOC has revised its interpretation of the ADA and now reaches the same conclusion. Under a section headed "The Pre-Offer Stage," the EEOC now explains: However, when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask that applicant certain limited questions. Specifically, the employer may ask whether s/he needs __________________ reasonable accommodation and what type of reasonable ________________________ _______________________ accommodation would be needed to perform the functions _____________ of the job. Enforcement Guidance: Pre-Employment Disability-Related _______________________________________________________ Questions and Medical Examinations (Oct. 10, 1995) (emphasis __________________________________ in original). UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1313 ANDRE GRENIER, Plaintiff - Appellant, v. CYANAMID PLASTICS, INC., Defendant - Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] ___________________ ____________________ Before Selya and Boudin, Circuit Judges, ______________ and Saris,* District Judge. ______________ _____________________ Roderick H. Potter, with whom Potter, Prescott, Jamieson & __________________ ____________________________ Nelson was on brief for appellant. ______ Jerrol A. Crouter, with whom Christopher G. Jernigan and _________________ _______________________ Drummond Woodsum & MacMahon were on brief for appellee. ___________________________ ____________________ November 27, 1995 ____________________ ____________________ * Of the District of Massachusetts, sitting by designation. SARIS, District Judge. Appellant Andre Grenier SARIS, District Judge. _______________ ("Grenier") was employed as an electrician for Cyanamid Plastics, Inc., d/b/a Cyro Industries ("Cyro"), for several years before he was placed on disability leave due to psychological problems. After his employment had officially terminated by automatic operation of the company disability policy, but while still receiving disability benefits, Grenier notified Cyro that he was an individual with a disability who needed reasonable accommodation to return to work and applied to be re-hired into his previous position. Before making him a job offer, Cyro requested Grenier to provide certification from his physician stating that he was prepared to return to work without restrictions or identifying the reasonable accommodations necessary for him to return to work. When Grenier failed to do so, his application was rejected. The difficult issue on appeal is whether Cyro violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12112(d), which prohibits certain preemployment medical examinations and inquiries of a job applicant. Concluding that Cyro did not violate this provision of the ADA, we affirm the district court's entry of summary judgment for Cyro. I. STATEMENT OF THE CASE I. STATEMENT OF THE CASE _____________________ A. Facts A. Facts Reviewing the factual record in the light most favorable to the nonmoving party, as we must at summary judgment, see Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. ___ _______ __________________ -2- 1991), cert. denied, 504 U.S. 985 (1992), we treat the following ____________ facts as undisputed. 1. The Disability Leave 1. The Disability Leave Andre Grenier worked as a shift electrician for Cyro at its plant in Sanford, Maine, from 1980 to 1989. Grenier's technical skill as an electrician was good. In 1989, Grenier and several other employees were questioned about vandalism of plant machinery that had occurred during their shift. Grenier responded to the questioning "in a highly emotional and irrational manner" and failed to report to his next scheduled shift. He informed his supervisor, William Kennedy, that he was afraid to be on a shift without an alibi, and that he was "losing it." Stating that Grenier's behavior was "very disruptive and potentially dangerous," Kennedy placed Grenier on medical leave in November 1989. This leave was explicitly "until such a time when you can be cleared by our medical department to return to work." Kennedy informed Grenier in writing that in order to return he would have to go through the standard reentry screening process, including permitting his doctors to discuss the specifics of his case with the company doctor. In August 1990, Grenier mailed the first of a series of letters to Cyro, including a one-page letter received September 27, 1990, and a six-page "statement" of April 11, 1991. In these letters, Grenier criticized the plant manager Skip Brogli and complained that company actions in investigating vandalism at the plant and placing him on medical leave had caused him to suffer -3- increased anxiety. He attacked several policies of the plant that he claimed were a "constant source of aggravation" to him. He also discussed in detail various collateral issues, such as the criminal charges faced by the son of a Cyro manager, a sexual harassment investigation of a fellow employee, and various transfers of Cyro managers. Grenier informed Cyro in his letters that his analyst Dr. Stewart "describes me as being Narcissistic," but noted that "I prefer the word 'proud.'" He stated that "Dr. Stewart also describes me as having 'somewhat paranoid beliefs concerning the malevolent intent of the (relatively new) management.'" He also noted that "[a]fter a year and a half of being unable to work, my analyst feels that it would be in my best interests to quit my job and find another . . . that I've become obsessed with this Skip guy [manager Skip Brogli]." He stated repeatedly, however, that he refused to quit his job. "As a final note," wrote Grenier in one letter, dated April 11, 1991, "I want to point that [sic], although Dr. Stewart is indicating that he feels that I am not totally disabled, I still feel convinced that I am." Grenier realized his statement had "some strong elements of paranoia," but claimed that "the paranoia is not just my own . . . it has become fairly rampant throughout the workforce." And: The continuing incidents of vandalism, recently, should be a clear signal to Corporate headquarters that Cyro Industries, in Sanford, Me. is still more than just a little bit sick. -4- There is still some hope, however, if only the right steps are taken. And unless the right steps are taken, somebody else is going to be hurt, maybe even killed. Of that, I am sure. Grenier would not voluntarily terminate his employment. He remained on indefinite disability leave until May 12, 1991, when his employment at Cyro terminated automatically as a result of the expiration of his continuous service credits. Cyro informed Grenier of his termination by letter May 15, 1991. Grenier received disability benefits from Cyro for a two-year period ending December 31, 1992. Under the company's plan, benefits were payable for up to two years if Grenier was under the regular care of a licensed physician and unable to perform the duties of his specific job, but benefits would have continued beyond this period only if the Disability Department determined that his medical condition prevented him "from working at any job for which [he was] reasonably qualified to perform." On December 4, 1992, the Cyro disability department wrote Grenier that based on information received from an independent medical examination of July 30, 1992, he was not disabled to this extent and, therefore, no benefits were payable after January 1, 1993. 2. Application for Re-Employment 2. Application for Re-Employment In a letter dated December 18, 1992, and addressed to Robert Lysaght, the Personnel Operations Manager at the Sanford plant, Grenier asked to be considered an applicant for the job of shift electrician, his former position. Grenier was still receiving disability benefits at this time. In this letter, -5- which was under the heading "request for employment accommodation," Grenier stated: I qualify as an individual with a disability as defined by Federal and State Civil Rights laws. I understand that CYRO Industries is conducting interviews for the position of shift mechanic in the electrical department. The purpose of this letter is to request accommodation to return to work in the same capacity as I had been working since September of 1980. . . . I believe that I should be afforded the opportunity to be accommodated to return to my job, at the very least, for a trial period, to prove that I am able to perform my job. I believe that, under reasonable circumstances, I should be able to perform in a safe and reliable manner. In response, Lysaght told Grenier in a January 5, 1993, letter that "CYRO is not currently accepting applications" but that the Maine unemployment office would be notified when Cyro was soliciting applications. In reality, a job notice was posted on January 4, 1993 -- subsequent to Grenier's request for consideration as an applicant, but prior to the date of Lysaght's response. Lysaght requested in his letter: Since your termination of employment came as a result of the expiration of Continuous Service Credits while you were on an extended medical leave, CYRO would reasonably request that you provide us with certification from a physician that you are prepared to return to work without restrictions or identifying any accommodations that are required for you to return to work at the Sanford location. Of course, any requests for employment -6- accommodation will be considered with regard to the reasonableness at the time of the employment interview process. Therefore, in order to return to work with CYRO Industries you need 1) keep in touch with the Maine Unemployment office in Sanford to learn when CYRO is accepting employment applications; 2) complete an employment application for a position for which you are qualified; and 3) provide CYRO with notice from your physician that you are prepared to return to work without restrictions or identifying those reasonable accommodations that may be necessary. By letter of January 15, 1993, Grenier forwarded his therapist's certification that he was disabled and requested to discuss accommodation with Cyro Vice President William Loman. He also maintained that his employment had never terminated, and argued that the May 15, 1991, letter that informed him of the termination "simply implies that my employment is terminated." Cyro's New Jersey-based Personnel Director Thomas Ayres responded by letter of January 25th by informing Grenier that he must follow the steps outlined in Lysaght's January 5th letter in order to be considered for employment. Additional correspondence ensued. Grenier asserted that he was "capable of performing the essential functions of the job with or without accommodation" but failed to describe how he would perform and refused to provide medical documentation. Cyro continued to request the documentation. On February 22, 1993, Cyro mailed Grenier an employment application, which Grenier promptly returned. By letter of March 15, 1993, Cyro rejected Grenier's application for -7- employment, stating that, "[a]fter careful review of all relevant information, your request for employment consideration is denied." B. Proceedings Below B. Proceedings Below Grenier filed a two-count complaint in the District of Maine on June 23, 1994, claiming that Cyro violated the ADA and the Maine Human Rights Act, 5 M.R.S.A. 4551 et seq.1 Cyro ________ filed a motion for summary judgment on the issue of pre-offer inquiries, and Grenier opposed the motion on the same grounds. The District Court entered summary judgment for Cyro. Grenier argues on appeal that Cyro's pre-offer inquiry violated the ADA and that there are genuine issues of material fact with respect to his claim that Cyro's failure to hire him constituted intentional discrimination. II. ANALYSIS II. ANALYSIS ________ A. Standard of Review A. Standard of Review This court reviews the district court's grant of summary judgment de novo. The standard of review has been ________ clearly articulated by this court as follows: Since appellate review of a grant of summary judgment is plenary, the court of appeals, like the district court, "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." An appellate panel is not restricted to the district court's reasoning but can affirm a summary judgment on any independently sufficient ground. In the end, ____________________ 1 As the parties acknowledge that federal law controls construction of the state claim, we do not discuss it separately. -8- the entry of summary judgment can be upheld only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) _______ __________________ (citations omitted), cert. denied, 504 U.S. 985 (1992). ____________ B. Statutory Framework B. Statutory Framework A close analysis of the statutory and regulatory framework is essential to determine the employer's obligations under the ADA when dealing with the known disability of a job applicant. 1. The Statute 1. The Statute The ADA, 42 U.S.C. 12101 et seq., was enacted "to _______ provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b). In the context of employment, the ADA provides: (a) General rule. No covered entity shall General rule. discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. 12112(a). With regard to medical examinations and inquiries, the ADA sets up separate rules for pre-offer job applications, 12112(d)(2); post-offer pre-employment examinations, -9- 12112(d)(3); and inquiries of current employees, 12112(d)(4). Section 12112(d) provides as follows: (d) Medical examinations and inquiries. (1) In general. The prohibition against discrimination as referred to in [ 12112(a)] shall include medical examinations and inquiries. (2) Preemployment. (A) Prohibited examination or inquiry. Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. (B) Acceptable inquiry. A covered entity may make preemployment inquiries into the ability of an applicant to perform job- related functions. Pursuant to paragraph (3), an employer may "require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of employment duties, and may condition an offer of employment on the results of such examination" only in certain circumstances.2 Once an applicant ____________________ 2 This section provides in relevant part: (3) Employment entrance examination. A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of employment duties of such applicant, and may condition an offer of employment on the results of such examination, if -- (A) all entering employees are subjected to such an examination regardless of disability; -10- becomes an employee, an employer is prohibited from requiring a medical examination or making inquiries of an employee as to whether he is an "individual with a disability or as to the nature or severity of the disability unless such examination or inquiry is shown to be job-related and consistent with business necessity." 12112(d)(4). An employer may make "inquiries into the ability of an employee to perform job-related functions." 12112(d)(4)(B). 2. The Regulations 2. The Regulations The regulations adopted under the ADA by the Equal Employment Opportunity Commission ("EEOC") provide that an employer may make "pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions." 29 C.F.R. 1630.14(a). The EEOC crafted 1630.14(a) in response to comments on the proposed regulation from employers asking "whether an employer may ask how an individual will perform a job function when the individual's known disability appears to interfere with or prevent performance of job-related functions." 56 Fed. Reg. 35725, 35732 (1991). The EEOC published as an appendix to the regulations a section-by-section "Interpretive Guidance on Title I of the ____________________ (B) information obtained [is kept confidential, with limited exceptions]; and (C) the results of such examination are used only in accordance with this subchapter. -11- Americans with Disabilities Act." 29 C.F.R. Pt. 1630, App. We have looked to this source in interpreting the ADA. See Carparts ___ ________ Distrib. Ctr., Inc. v. Automobile Wholesaler's Ass'n, 37 F.3d 12, ___________________ _____________________________ 16 (1st Cir. 1994). Such administrative interpretations of the Act by the enforcing agency, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Sav. Bank, FSB v. _______________________ Vinson, 477 U.S. 57, 65 (1986). ______ The EEOC explains the regulation 1630.14(a) as follows: An employer may also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. Such a request may be made of all applicants in the same job category regardless of disability. Such a request may also be made of an applicant whose known disability may interfere with or prevent the performance of a job-related function, whether or not the employer routinely makes such a request of all applicants in the job category. For example, an employer may ask an individual with one leg who applies for a position as a home washing machine repairman to demonstrate or to explain how, with or without accommodation, he would be able to transport himself and his tools down the basement stairs. However, the employer may not inquire as to the nature or severity of the disability. Therefore, for example, the employer cannot ask how the individual lost the leg or whether the loss of the leg is indicative of an underlying impairment. 3. The Guidance 3. The Guidance -12- An EEOC Enforcement Guidance, dated May 19, 1994,3 further aids our interpretation of the rules concerning pre-offer inquiries of applicants with known disabilities. See Equal ___ Employment Opportunity Comm'n, Enforcement Guidance: ________________________ Preemployment Disability-Related Inquiries and Medical _________________________________________________________________ Examinations Under the Americans with Disabilities Act of 1990 _________________________________________________________________ (EEOC Notice 915.002) (May 19, 1994) [hereinafter Guidance]. The ________ Guidance was designed "for interim use by EEOC investigators, pending coordination with other federal agencies." Id., Exec. ___ Summ. It is not binding law, but as a detailed analysis of the relevant ADA provisions, it aids our interpretation of the statute. In a section entitled "When the Employer Could Reasonably Believe that Known Disability Will Interfere With Performance of Job Related Functions," the Guidance provides: When an employer could reasonably believe that an applicant's known disability will interfere with the performance of a job- related function, the employer may ask that particular applicant to describe or demonstrate how s/he would perform the function, with or without reasonable accommodation. Such inquiries or requests are not prohibited pre-offer inquiries. ____________________ 3 Both parties refer us to this Guidance although it was published after the decision by Cyro to reject Grenier's application. We note that a revised version of the Guidance was issued October 10, 1995, after oral argument in this case. See ___ Equal Employment Opportunity Comm'n, Enforcement Guidance: Pre- __________________________ Employment Disability-Related Questions and Medical Examinations _________________________________________________________________ (Oct. 10, 1995) (reprinted in EEOC Compl. Man. (CCH) 6093, at _________________ 5371). -13- Example 5: R may ask an applicant with one _________ leg who applies for a job as a telephone linesperson to describe or demonstrate how she would perform the duties of the job, because R may reasonably believe that having one leg interferes with the ability to climb telephone poles. In some cases, an applicant may not have an obvious disability, but may voluntarily disclose that s/he has a hidden disability that would reasonably appear to interfere with performance of a job-related function. In such cases, the employer may ask the applicant to describe or demonstrate performance, with or without reasonable accommodation. Such inquiries or requests are not prohibited pre-offer inquiries. Example 6: An applicant for the job of __________ repairing underground sewer lines voluntarily discloses that she has severe claustrophobia. R may reasonably determine that severe claustrophobia would interfere with an employee's ability to work within the confined space of an underground sewer. R may therefore ask the applicant to describe or demonstrate how she would perform the job, with or without reasonable accommodation. Guidance IV.B.5.b. ________ The EEOC explains that allowing an employer to ask an applicant with a known disability to describe or demonstrate how he would perform a job-related function "is in the interest of both applicants and employers." Id. at n.23. ___ Employers are entitled to know whether an applicant with an apparently interfering disability can perform job-related functions, with or without reasonable accommodation. It is in the interest of an applicant with such a disability to describe or demonstrate performance in order to dispel notions that s/he is unable to perform the job because of the disability. Id. ___ -14- In a section entitled "Inquiries Concerning Need for Accommodation and Requests for Documentation if Applicant Asks for Accommodation," the Guidance permits an employer during the hiring process to require an applicant "to inform the employer of any reasonable accommodation needed" to take an "interview" or perform a "job demonstration." Id. IV.B.6.a. With respect to ___ accommodations for the job, as opposed to accommodations for the hiring process, the Guidance explains: An employer may ask an applicant whether s/he can perform specified job-related functions with or without reasonable accommodation, because these inquiries elicit information about an applicant's ability to perform job _______ functions, not information about an applicant's disability. An employer also may ask an applicant to describe or demonstrate, at the pre-offer stage, how s/he would perform job-related functions, with or without reasonable accommodation, because these inquiries elicit information about an applicant's ability, not information about an _______ applicant's disability. . . . However, at the pre-offer stage, an employer may not generally inquire whether the applicant needs reasonable accommodation for the job. For example, an employer may not make inquiries such as, "Would you need reasonable accommodation in this job?" or "Would you need reasonable accommodation to perform this specific function?" Such inquiries are likely to elicit information about the existence of a disability because, generally, only an individual with a disability would require an accommodation. Therefore, these inquiries are prohibited at the pre-offer stage. If an applicant has voluntarily disclosed that s/he would need a reasonable accommodation to perform the job, the employer still may not make inquiries at the pre-offer stage about the type of required ____ reasonable accommodation (except where the -15- applicant has requested reasonable accommodation as part of a required pre-offer job demonstration, as described above). Id. IV.B.6.a (emphasis in original). ___ When an applicant requests reasonable accommodation, an employer may request "documentation from an appropriate professional (e.g., a doctor, rehabilitation counsellor, etc.), stating that s/he has a disability." Id. IV.B.6.b. An ___ employer may also require documentation as to an applicant's functional limitations "for which reasonable accommodation is requested (and which flow from the disability.)" Id. The EEOC ___ reasoned that such requests are not prohibited pre-offer inquiries because: Requesting such documentation is consistent with the ADA's legislative history. For example, Congress specifically anticipated that when an applicant requests reasonable accommodation for the application process (or when an employee requests reasonable accommodation for the job), the employer _____________ should engage in an interactive process with _____________________________________________ the individual to determine an effective _____________________________________________ reasonable accommodation. ________________________ Id. (emphasis added). As an example, the EEOC stated that an ___ employer may at the pre-offer stage require an applicant to obtain documentation from a professional stating she cannot lift a certain amount and needs reasonable accommodation. Id. ___ C. The Pre-Offer Inquiry C. The Pre-Offer Inquiry With this statutory and regulatory framework in mind, we turn to Grenier's claim that Cyro's requirement of a medical certification violates ADA 12112(d). 1. Getting Along 1. Getting Along -16- First, Grenier argues that Cyro's letter requiring a medical certification constituted an impermissible inquiry because the request was not for information about how he would perform the job-related functions. Rather than ask "whether he possessed the requisite skills to perform the electrical and electronic tasks called for in the job description," Grenier complains, "Cyro assumed that his ability to perform job related functions was called into question by his history of mental illness." Grenier argues that Cyro already had knowledge that he was able to do the essential job-related functions because he had worked there for nine years and was "technically qualified." Grenier incorrectly assumes that the essential functions of the job of shift electrician require only technical ability and experience as an electrician. "The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. 1630.2(n)(1). Technical skills and experience are not the only essential requirements of a job. See Pesterfield v. ___ ___________ Tennessee Valley Auth., 941 F.2d 437, 441-42 (6th Cir. 1991) ("at ______________________ least the ability to get along with supervisors and co-workers" was essential function of job as tool room attendant); Mancini v. _______ General Electric Co., 820 F. Supp. 141, 147 (D. Vt. 1993) ______________________ ("ability to follow the orders of superiors is an essential function of any position"); Pickard v. Widnall, 1994 WL 851282, _______ _______ 9 (S.D. Ohio, Dec. 15, 1994) (No. C-3-94-40) ("mental and emotional stability" was essential job function for military -17- position); Johnston v. Morrison, 849 F. Supp. 777, 778 (N.D. Ala. ________ ________ 1994) (waitress who was unable to handle pressures of working on crowded nights or memorizing frequent menu changes was unable to perform essential functions of job); cf. Bento v. I.T.O. Corp. of __ _____ _______________ Rhode Island, 599 F. Supp. 731, 742-43 (D.R.I. 1984) (although ____________ there is "no question that plaintiff . . . is qualified to do the job, at least in the sense of knowing how to perform it," he is not necessarily "otherwise qualified" within the meaning of the Rehabilitation Act). More specifically, an employer may reasonably believe that an employee known to have a paranoia about the plant manager is not able to perform his job. Cf. Voytek v. University of ___ ______ _____________ California, 1994 WL 478805, 15, 6 A.D.D. 1137, 1161 (N.D. Cal., __________ Aug. 25, 1994) (No. C-9203465 EFL) (holding that employee was legally denied re-employment after period of disability where he "could not continue to perform all of the tasks assigned to him," due in part to "the ongoing conflict with his supervisor"). The ADA does not require an employer to wear blinders to a known disability at the pre-offer stage, but permits an "interactive process" beneficial to both the employer and applicant. The EEOC regulations recognize this by providing that an employer can ask an applicant with a known disability to describe or demonstrate how "with or without reasonable accommodation" the applicant will be able to do the job. 29 C.F.R. 1630.14(a). Here, Cyro knew that the applicant had just recently been unable to perform his specific job at Cyro as a -18- result of a mental disability for which he was still receiving benefits from Cyro and undergoing psychiatric treatment. Indeed, Grenier himself had claimed he was totally disabled from performing any work, not just his specific job at Cyro. Cf. ___ August v. Offices Unlimited, Inc., 981 F.2d 576, 581-82 (1st Cir. ______ _______________________ 1982) (man who had asserted on insurance forms that he was "totally disabled" and had presented no contrary evidence could not be found to be "qualified handicapped person" under Massachusetts anti-discrimination statute, Mass. Gen. L. ch. 151B); Reigel v. Kaiser Found. Health Plan, 859 F. Supp. 963, 969 ______ _________________________ (E.D.N.C. 1994) (woman who certified to her disability insurer that she could not perform her job was estopped from asserting that during the same time period she had been qualified to perform for purposes of the ADA). We hold that this employer did not violate the prohibition in 12112(d) by inquiring into Grenier's ability to function effectively in the workplace and to get along with his co-workers and supervisor, rather than just his technical qualifications as an electrician.4 2. The Medical Certification 2. The Medical Certification ____________________ 4 We note that the inquiry made by Cyro would not necessarily be permissible under different circumstances, such as where the employer was less familiar with the nature or extent of the applicant's disability, or with the effect of the disability on job performance. As the EEOC recognized when preparing the Guidance, "there are sometimes subtle distinctions between a permissible and a prohibited pre-offer inquiry." Guidance ________ IV.B.6.b. See generally Paul F. Mickey, Jr. & Maryelena Pardo, ___ _________ Dealing with Mental Disabilities Under the ADA, 9 Lab. Law. 531 _______________________________________________ (1993); Janet L. Hamilton, New Protections for Persons with ___________________________________ Mental Illness in the Workplace under the Americans with _________________________________________________________________ Disabilities Act of 1990, 40 Clev. St. L. Rev. 63, 92 (1992). ________________________ -19- Next Grenier argues that Cyro's pre-offer requirement of a medical certification is an illegal pre-offer inquiry under the ADA because the regulations "do not by their terms permit a request to someone other than the applicant at the preoffer stage." As a preliminary matter, we address whether a request for medical certification constitutes a "medical examination" or whether it is instead an "inquiry." The ADA prohibits an employer from conducting any pre-offer "medical examination" of a job applicant. 12112(d)(2). This prohibition applies to psychological examinations. See Guidance at n. 47 (citing H.R. ___ ________ Rep. No. 485 (Pt. 3), 101st Cong., 2d Sess. 46 (1990), reprinted _________ in 1990 U.S.C.C.A.N. vol. 4, Legis. Hist., 445, 469). The EEOC __ defined "medical examination" as follows: Medical examinations are procedures or tests that seek information about the existence, nature, or severity of an individual's physical or mental impairment, or that seek information regarding an individual's physical or psychological health. Guidance V.A. We conclude that a certification from a treating ________ psychiatrist that does not necessitate new tests or procedures is best analyzed as an "inquiry" rather than as a "medical examination." Also, contrary to Grenier's assertion, the EEOC interprets the ADA to allow certain inquiries of third parties at the pre-offer stage. With respect to "inquiries to third parties regarding an applicant's medical condition," the Guidance provides that "[a]t the pre-offer stage", an employer can "ask a -20- third party (e.g., a reference) anything that it could ask the ____ applicant directly." Guidance IV.B.15. Further, the EEOC ________ finds that requests for documentation from health care providers to confirm the existence of a disability are permissible where, as here, requests for reasonable accommodation are made in connection with the hiring process or job. See Guidance ___ ________ IV.B.6.b. We conclude that an employer may request that an applicant provide medical certification from doctors of ability to perform so long as the inquiry does not otherwise run afoul of 12112(d)(2)(A). The primary thrust of Grenier's appeal is that this inquiry -- the requirement of medical certification of ability to perform from a former disabled employee applying to return to work with the same employer -- violates 12112(d)(2)(A) in that it constitutes an inquiry of a "job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." The Eighth Circuit recently addressed a similar factual situation in Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995), a case _______ ____ decided under the Rehabilitation Act, and applicable regulations.5 Brumley was a mentally disabled former employee ____________________ 5 The ADA extended to the private sector the essential substantive provisions of the Rehabilitation Act of 1973, 29 U.S.C. 791-794. See Chai R. Feldblum, Medical Examinations ___ _____________________ and Inquiries under the Americans with Disabilities Act: A View _________________________________________________________________ from the Inside, 64 Temple L. Rev. 521, 521-22 (1991). Congress _______________ intended that Rehabilitation Act precedent be considered by the courts in interpreting the ADA. See 42 U.S.C. 12201(a); see ___ ___ also Ennis v. National Ass'n of Business & Educational Radio, ____ _____ __________________________________________________ Inc., 53 F.3d 55, 57 (4th Cir. 1995) ("To the extent possible, we ____ -21- of the Federal Aviation Administration ("FAA") who sought priority consideration for restoration to federal employment pursuant to 5 U.S.C. 8151, which predicated the level of priority for re-employment on the extent of recovery from the disability. He challenged the agency's demand for a pre- employment examination by a psychiatrist to determine whether he was fully or only partially recovered from his severe reactive depression. Id. at 279. In questioning the application of the ___ regulations, the court noted that "[t]he dilemma here is that Brumley is not an outside job applicant seeking employment at the FAA for the first time." Id. "Rather, he is a recipient of . . ___ . disability payments who is seeking to exercise his re- employment rights with the FAA pursuant to [5 U.S.C. 8151]." Id. The court concluded that the employer "retains the right to ___ require that [the former employee's] medical condition be verified in order to determine his re-employment rights." Id. at ___ 279. As in Brumley, this Court faces the quandary of _______ determining the appropriate parameters of a pre-offer inquiry of a former employee who is the recipient of disability benefits and now seeks re-employment. Cyro argues that an employer should not be forced to have "amnesia" with respect to a former employee where it is well aware of the nature and severity of that ____________________ adjudicate ADA claims in a manner consistent with decisions interpreting the Rehabilitation Act."). Specifically, the ADA's statutory provisions on medical examinations and inquiries were drawn from Rehabilitation Act regulations. See 29 C.F.R. ___ 1614.203(e) (formerly 1614.706); 45 C.F.R. 84.14. -22- employee's disability because it had previously received medical information that formed the basis for its determination of eligibility for disability benefits. Rather, it urges, Grenier should be treated as an existing employee returning from disability leave, in which case the employer would be able to demand medical certification of ability to return to work. See ___ 42 U.S.C. 12112(d)(4) (ADA provisions for medical examinations of existing employees); Hogan v. Bangor and Aroostook R.R. Co., _____ _____________________________ 61 F.3d 1034, 1036 (1st Cir. 1995) (employee was entitled to reinstatement after suffering collapsed lung as soon as medical evidence indicated he was fit to return); Pesterfield, 941 F.2d ___________ at 438 (employee who was hospitalized for psychiatric treatment was required to provide medical certification as to ability to return to work); Derbis v. United States Shoe Corp., 1994 WL ______ _________________________ 631155, *5, 6 A.D.D. 1071, 1075, 3 A.D. Cas. 1029, 1030, 65 Fair Empl. Prac. Cas. (BNA) 1328 (D. Md., Sept. 7, 1994) (No. MJG-93- 130) (where plaintiff on disability leave presented a medical report which indicated the employee could return to work but only with some accommodation, employer could require sufficient information to allow it to consider any possible reasonable accommodation), aff'd in part and remanded for further _______________________________________________ proceedings, 67 F.3d 294 (4th Cir. 1995) (table). We agree that ___________ this case is similar to that of an employee returning from disability leave. It appears that neither Congress nor the EEOC took into account the case of a returning employee when formulating the restrictions on pre-offer inquiries. Here, as in -23- the case of the returning employee, the employer must be able to assess the extent of the applicant's recovery from inability to perform. Further, if accommodations are necessary to enable job performance, the employer, who is already familiar with the disability, must learn of those accommodations in order to have any realistic chance of assessing ability to perform. Grenier contends that the ADA as interpreted in the Guidance prohibits an employer's requirement that a physician identify the type of reasonable accommodations required for an _______ employee to return to work. The Guidance states: "If an applicant has voluntarily disclosed that s/he would need a reasonable accommodation to perform the job, the employer still may not make inquiries at the pre-offer stage about the type of ____ required reasonable accommodation." Guidance IV.B.6.a. ________ We conclude that the ADA does not preclude an employer from asking an applicant with a known disability who seeks a _____ reasonable accommodation to specify the type of accommodation he seeks. As the District Court pointed out, the Guidance prohibits pre-offer inquiry into the type of accommodation because it is "likely to elicit information about the nature and severity of a disability." Guidance IV.B.6.a. The central purpose of the ________ prohibition on pre-offer inquiries generally is to ensure that an applicant's hidden disability remains hidden. See H.R. Rep. ___ No. 485 (Pt. 2), 101st Cong., 2d Sess., at 73, reprinted in 1990 ____________ U.S.C.C.A.N. vol. 4, Legis. Hist., 303, 355 ("The legislation prohibits any identification of a disability by inquiry or -24- examination at the pre-offer stage."); Guidance IV.A ("This ________ prohibition is to ensure that an applicant's possible hidden disability (including prior history of a disability) is not considered by the employer prior to the assessment of the applicant's non-medical qualifications."). With respect to known disabilities, however, the emphasis is on encouraging the employer to "engage in an interactive process with the individual to determine an effective reasonable accommodation." Guidance IV.B.6.b (citing H.R. Rep. ________ No. 485 (Pt. 2), supra, at 65-66, U.S.C.C.A.N. at 347-48). That _____ is why the EEOC allows an employer to ask an applicant with known claustrophobia to describe pre-offer how she would perform the job, with or without reasonable accommodation. There could be no meaningful interaction if this court would accept the strict interpretation Grenier presses on us that an employer who knows the precise nature of a disability that interferes with essential job functions cannot, on being informed pre-offer that accommodation will be necessary, follow up with the logical question "what kind?"6 ____________________ 6 On October 10, 1995, subsequent to oral argument, the EEOC issued a new Guidance. Although neither party has argued that we ought to consider this newest guidance, we note that the EEOC has revised its interpretation of the ADA and now reaches the same conclusion. Under a section headed "The Pre-Offer Stage," the EEOC now explains: However, when an employer could reasonably believe that an applicant will need reasonable accommodation to perform the functions of the job, the employer may ask that applicant certain limited questions. Specifically, the employer may ask whether s/he needs __________________ reasonable accommodation and what type of reasonable ________________________ _______________________ -25- In sum, an employer does not violate 12112(d)(2) of the ADA by requiring a former employee with a recent known disability applying for re-employment to provide medical certification as to ability to return to work with or without reasonable accommodation, and as to the type of any reasonable accommodation necessary, as long as it is relevant to the assessment of ability to perform essential job functions. D. Intentional Discrimination in Denial of Application D. Intentional Discrimination in Denial of Application Finally, Grenier argues on appeal that there remain genuine issues of material fact as to his argument that Cyro intentionally discriminated against him in violation of 42 U.S.C. 12112(a), as opposed to 12112(d). Grenier argues that, even if Cyro did not violate the specific restrictions on pre-offer inquiries, there is a genuine dispute of material fact whether Cyro illegally discriminated against Grenier based upon his disability when it denied his application for employment. By failing to make this argument in his opposition to summary judgment, Grenier has failed to preserve this claim. "It is by now axiomatic that an issue not presented to the trial court cannot be raised for the first time on appeal." Johnston ________ v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir. 1979). This ___________________ ____________________ accommodation would be needed to perform the functions _____________ of the job. Enforcement Guidance: Pre-Employment Disability-Related _______________________________________________________ Questions and Medical Examinations (Oct. 10, 1995) (emphasis __________________________________ in original). -26- rule may be relaxed only "in horrendous cases where a gross miscarriage of justice would occur." Id. (quoting Newark ___ ______ Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. __________________ ______________ 1976)). For a new argument to be considered, it must be "so compelling as virtually to insure appellant's success." Id. ___ (quoting Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir. 1974)). ____ _____ Even an issue raised in the complaint but ignored at summary judgment may be deemed waived. "If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal." Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir. ________ ______ 1986); see also Liberles v. County of Cook, 709 F.2d 1122, 1126 ________ ________ ______________ (7th Cir. 1983). This is because "an appellate court, in reviewing a summary judgment order, can only consider those matters presented to the district court." Frank C. Bailey ________________ Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir. _________________ ______________ 1978). Although this alternative argument can be found in the complaint, and Grenier asserts it would have been raised at trial, this does not suffice to preserve the issue. Cyro moved for summary judgment on all counts based solely on the validity of the pre-offer inquiry under 12112(d). Grenier argued only that issue in his brief. Although he made an oblique reference in his memorandum opposing summary judgment to Cyro's failure to challenge or admit his "ultimate contention that Andre was discriminated against on the basis of his disability by the -27- rejection of his application," he concedes he never addressed the alternative claim of intentional discrimination. The only related evidence Grenier discussed in his "statement of material facts" at summary judgment was that Lysaght stated on January 5, 1993 that Cyro was not seeking applicants, when it had in fact given notice of the job opening the day before. See Ennis v. ___ _____ National Ass'n of Business & Educ. Radio, Inc., 53 F.3d 55, 58 ________________________________________________ (4th Cir. 1995) (discussing prima facie elements of claim under 12112(a)). After the judge entered final judgment once he had determined that Cyro was entitled to summary judgment on the issue of preemployment medical inquiries, no motion for reconsideration was filed. There is nothing in the record which persuades us to exercise our discretion to bend the raise-or- waive rule. III. CONCLUSION III. CONCLUSION For the foregoing reasons, the District Court's grant of summary judgment is AFFIRMED. AFFIRMED -28-	{ "pile_set_name": "FreeLaw" }
460 F.Supp. 1206 (1978) Alfred FERDNANCE, David J. Siboloski, Allen A. Kemppainen, and Ivory Jones, Plaintiffs, v. AUTOMOBILE TRANSPORT, INC., International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 299 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendants. Civ. No. 77-71288. United States District Court, E. D. Michigan, S. D. November 29, 1978. 1207 Ellis Boal, Detroit, Mich., for plaintiffs. C. John Holmquist, Bloomfield Hills, Mich., for defendant Auto. Transport. James P. Hoffa, Detroit, Mich., for defendants Intern. Union and Local 299. MEMORANDUM OPINION RALPH M. FREEMAN, District Judge. This matter is before the Court on motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure by defendants Automobile Transport, Inc., (ATI), International Brotherhood of Teamsters and Teamsters Local 299 (the Union). In their answer to defendants' motions, plaintiffs have consented to the motion of defendant International Brotherhood of Teamsters, thus leaving only the motions of the other two defendants for decision by this Court. Since both motions involve substantially similar legal issues and virtually identical facts, the Court has consolidated them for hearing and will dispose of them together in this memorandum opinion. Plaintiffs filed their complaint against defendants in May 1977, alleging a breach of the duty of fair representation by the union, and breaches of the collective bargaining agreement and unfair labor practices by ATI. In its memorandum opinion of January 9, 1978, this Court limited the issues in the case to whether plaintiffs were discharged from their employment with ATI in violation of the collective bargaining agreement and whether the Union breached 1208 its duty of fair representation. Defendants now contend that after extensive discovery in this case there appears no genuine issue of material fact, and on the facts presented they are entitled to judgment as a matter of law. After considering the pleadings, briefs and extensive discovery materials in this case, the Court is of the opinion that it must agree with defendants. Plaintiffs were truck drivers employed as "carhaulers" by defendant ATI during the time period at issue in this case. At that time both ATI and Local 299 were signatory to a collective bargaining agreement entitled "National Master Automobile Transporters Agreement and the Central and Southern Conference Areas Supplemental Agreements covering Truckaway, Driveaway Local and Garage Operations." That agreement had been the subject of renegotiation discussions between representatives of the signatory companies and the Teamsters. It was to have expired on May 31, 1976, but was extended provisionally past that date by the negotiators of the new contract. The agreement contained a no-strike clause, which all parties admit was in full force during the time at issue in this case. On May 21, 1976, ten days before the expiration date of the original contract, the negotiating committee reached a tentative agreement on the terms and conditions of the new contract. This agreement was signed by the negotiating committees and was subject to ratification by the membership under the provisions of the Constitution of the International Brotherhood of Teamsters. In accord with those provisions, ballots were mailed to the employees covered by the contract. The results of that balloting revealed that the union membership disapproved the contract by a margin of 5,334 to 4,043. The terms of the tentative agreement accordingly were rejected, and the negotiating committees made arrangements to meet to further revise the tentative agreement. On July 1, 1976, the national negotiating committees signed a second stipulation of agreement, which also was subject to ratification by members of the local union. The same procedures were followed as in the first balloting, except that the General Executive Board of the International Union determined that the second agreement was a "final agreement" within the International Union's constitution and under the constitution's provisions could be rejected only by a two-thirds vote of the affected membership. In the second balloting, 3,718 votes were in favor of ratification and 6,400 votes were opposed. Since the contract was not rejected by two-thirds of the membership, it was declared ratified. On June 21, 1976, several days after disapproval of the first tentative agreement was announced, and during the extension of the original contract, plaintiff Ferdnance called for a wildcat strike at a meeting of the carhaul members of Local 299. All plaintiffs participated in the strike; picketing, which began at the local Union hall, was moved to ATI's terminal in Detroit. The parties agree that the strike occurred without Union authorization. In fact, Dave Johnson, president of Local 299, tried to prevent the strike, and other Union officers urged the striking employees to return to work. Pursuant to the National Agreement, ATI sent telegrams to the International Union, the Central Conference and Local 299 to ascertain whether the work stoppage was authorized. ATI received no response from the International Union or the Central Conference, which under the terms of the agreement meant that the work stoppage was not authorized. The strike and the picketing continued, however, even after both ATI and Union personnel ordered the strikers back to work. In response, ATI brought an action in Federal District Court, seeking damages and an injunction against the strike and continuation of picketing. A temporary restraining order was issued, but the court later declined to issue a preliminary injunction, holding that it lacked authority to do so under Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), because the dispute did not involve a matter arbitrable under 1209 the collective bargaining agreement. Automobile Transport, Inc. v. Ferdnance, 420 F.Supp. 75 (D.C.1976). The temporary restraining order was served on the strikers in the evening of June 22, 1976. The last strikers dispersed at approximately 6:30 a. m. the following day. When all the drivers returned to work, ATI informed them that their actions were under investigation and disciplinary action might be taken. No disciplinary action was taken, however, until July 29, 1976, when the Federal District Court denied ATI's request for a preliminary injunction. At that time ATI discharged the four plaintiffs in this action and Gerald Belisle, a former plaintiff in this action. ATI also suspended eight drivers and two garagemen for one week and issued warning notices to twentysix other employees for their conduct during the strike. After their discharges, the five employees filed grievances with Local 299, asserting that the discharges violated the collective bargaining agreement. These grievances were then processed by representatives of Local 299 in accordance with the grievance procedure specified in the collective bargaining agreement. That procedure utilizes a joint committee as the arbitration tribunal; the panel is composed of an equal number of representatives from the employers and unions which are parties to the agreement in the appropriate geographic area. Under the collective bargaining agreement, the decisions of joint committees are final and binding upon all parties, including the employees affected. Plaintiffs attended the first local level hearing with their personal attorney. Representatives of Local 299 also were present. Plaintiffs told the Business Agents of Local 299 that they did not want to be represented by the Union; the agents present, however, argued before the committee on plaintiffs' behalf. Since no resolution of the grievances occurred at the first hearing, a second local level meeting took place several days later. All plaintiffs were present and were represented by an attorney. ATI representatives also attended with their attorney, as did representatives of Local 299. Plaintiff Ferdnance was excused from the meeting since he already had had his local level meeting. After presentation of ATI's case against each plaintiff present, plaintiffs and their attorney consulted with the union representatives and their attorney. Wilson Holsinger, business agent for Local 299, stated that it was the Union's position that ATI had failed to provide sufficient evidence to justify the discharges and requested that plaintiffs be reinstated with full back pay. Plaintiffs' attorney, however, indicated that Holsinger did not represent plaintiffs, and that Gerald Belisle would speak on their behalf. Belisle presented several arguments on plaintiff's behalf, and plaintiffs also indicated that they incorporated Local 299's arguments into their own. When ATI refused to reinstate plaintiffs, the grievances were docketed with the Tri-City Joint Arbitration Panel in accordance with the provisions of the collective bargaining agreement. Plaintiffs attended the hearing with their attorney, and Local 299 representatives also spoke on plaintiffs' behalf, although plaintiffs continued to refuse representation by Local 299. Holsinger again stated the Local's position that ATI had discriminated against plaintiffs by firing them, since all employees had participated in the work stoppage to varying degrees. He stated that ATI's evidence did not support the penalty of discharge, and urged that plaintiffs be given leniency. All the plaintiffs also spoke on their own behalf. Plaintiffs' grievances were deadlocked by the Tri-City Panel. In accordance with the National Agreement, the grievances were then referred to the Central-Southern Conference Automobile Transporters Joint Committee, and were docketed to be heard at the meeting in Colorado. Plaintiffs Siboloski and Jones attended the Colorado hearing. Local 299 representatives attended and presented cases on plaintiffs' behalf. Plaintiffs also made statements and arguments to the Panel. 1210 The hearing on the grievances of plaintiffs Ferdnance and Kemppainen were postponed until the next Joint Committee meeting, since neither of these plaintiffs attended the Colorado hearing. At the conclusion of the hearing in Colorado, the Joint Committee sustained the discharge of plaintiffs Siboloski and Jones, finding their conduct to be in violation of the no-strike clause of the collective bargaining agreement. The Ferdnance and Kemppainen grievances were heard at the next Joint Committee meeting in Atlanta, Georgia. Plaintiff Kemppainen was present and spoke on his behalf. Although plaintiff Ferdnance was notified of the Atlanta hearing, he failed to appear and did not notify Local 299 that he would not attend. Holsinger again spoke on behalf of both plaintiffs, raising arguments similar to those he had presented before the Tri-City Panel. The Joint Committee found the conduct of Ferdnance and Kemppainen to be in violation of the no-strike clause of the collective bargaining agreement, and sustained both discharges. All plaintiffs then filed the complaint in the case presently before the Court. Plaintiffs concede that the basic facts are not disputed. They contend, however, that there is a genuine factual issue as to the purpose of the strike, and that that issue precludes a grant of summary judgment in this case. Plaintiffs argue that if the strike were directed at the Union rather than ATI, as plaintiffs contend, it did not concern an arbitrable grievance and therefore was not in violation of the collective bargaining agreement. Under this theory, therefore, plaintiffs' discharges were not "for just cause" as required by the agreement. Clearly, the Court cannot grant a motion for summary judgment if there exists a genuine issue of material fact. See Rule 56, Fed.Rules Civ.Pro.; Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). This principle applies, however, only when the factual issue is material; if the only factual disputes concern issues which are unnecessary to disposition of the case, summary judgment may be appropriate. 6 Moore's Federal Practice ¶ 56.15[1.-0] (2d ed. 1976 & Supp. 1977-78). Even assuming that there is a genuine dispute as to the purpose of the strike,[1] the Court is of the opinion that such a factual dispute is immaterial to disposition of the instant case. The Joint Committee has determined that plaintiffs' conduct violated the collective bargaining agreement, and constituted just cause for the dismissals; whether or not this Court agrees with that determination, it is bound to accept it under a long line of court precedent. See, e. g., General Drivers v. Riss, 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Morris v. Werner-Continental, Inc., 466 F.2d 1185 (6th Cir., 1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973). Despite some opinion to the contrary, see, e. g., General Drivers, Local 554 v. Young & Hay Transportation Co., 552 F.2d 562 n.5 (8th Cir., 1975), it is well settled in this Circuit that decisions of joint arbitration committees are to be accorded the same weight and given the same finality as decisions of any other arbitrator. Morris v. Werner-Continental, Inc., supra; see also General Drivers v. Riss, supra, 372 U.S. at 519, 83 S.Ct. 789. Because a fundamental goal of federal labor policy is the rapid and peaceful disposition of labor disputes through the means agreed upon by parties to a collective bargaining agreement, see United Steelworkers v. Enterprise Wheel & Car Corp., supra; United Steelworkers v. American Manufacturing Co., supra; United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ("The Steelworkers Trilogy"), as a general rule 1211 the courts may not reconsider the merits of arbitration decisions. E. g., General Drivers v. Riss, supra, 372 U.S. at 567-68, 83 S.Ct. 789. As the Sixth Circuit stated in Chambers v. Beaunit Corp., 404 F.2d 128 (6th Cir. 1968), "The fostering of good industrial relations makes it imperative that courts give effect to the bargained for and agreed upon method of settling grievances." 404 F.2d at 131. The limited circumstances in which a court may review the merits of an arbitration decision have been well defined. If the grievance procedure was a sham, substantially unavailable or arbitrary, or if there has been fraud, deceit or a breach of the union's duty of fair representation, the court may then consider the merits of the arbitrator's decision. See, e. g., Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Morris v. Werner-Continental, Inc., supra. In the present case, the briefs, pleadings and extensive discovery material indicate only one possible ground for invoking the exception to the general prohibition on court review of arbitration decisions; that ground is a breach of the Union's duty of fair representation, which also constitutes the basis for plaintiffs' claim against the defendant Union. It is clear that the Court may find a union has breached its duty of fair representation only in narrowly defined circumstances; a member of the collective bargaining unit must show that the union's conduct toward him was arbitrary, discriminatory, or in bad faith before he can succeed in an action for breach of the fair representation duty. Vaca v. Sipes, supra. As the Sixth Circuit has stated: A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Ruzicka v. General Motors Corp., 523 F.2d 306, 309-310 (6th Cir. 1975). Mere displeasure with the arbitrator's decision or disagreement with the strategy employed by union representatives is not sufficient, however. Fleming v. Chrysler Corp., 416 F.Supp. 1258 (E.D.Mich.1975); Provenzino v. Merchants Forwarding, 363 F.Supp. 168 (E.D.Mich.1973). Nor is there a breach of the duty merely because there were errors in the arbitration process, Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), or because the parties incorrectly interpreted the collective bargaining agreement. Dill v. Greyhound Corp., 435 F.2d 231 (6th Cir. 1970); Bazarte v. United Transportation Union, 429 F.2d 868 (3d Cir. 1970). Moreover, proof that the union may have acted negligently or exercised poor judgment is insufficient to establish a claim of unfair representation. Cannon v. Consolidated Freightways Corp., 524 F.2d 290 (7th Cir. 1975); Bazarte v. United Transportation Union, supra. Upon a close review of the facts in this case, the Court is convinced that plaintiffs have not shown any evidence of unfair representation under the standards cited above. Union representatives were present for plaintiffs at each stage of the grievance proceedings. Despite plaintiffs' refusal to be represented by the Union, Union representatives raised several colorable arguments on plaintiffs' behalf at the arbitration hearings. While the Court might agree that the Union could have used a more effective strategy or more persuasive arguments before the Joint Committee, that clearly is an improper basis upon which to rest a breach of the fair representation duty. See Cannon v. Consolidated Freightways Corp., supra; Bazarte v. United Transportation Union, supra; Dill v. Greyhound Corp., supra. The facts simply fail to reveal that the Union acted in an arbitrary or discriminatory manner, or conducted itself in bad faith. Furthermore, the extent of Union participation in the grievance proceedings persuades this Court that the Union hardly can be said to have handled plaintiffs' claims in a perfunctory manner. See Dill v. Greyhound Corp., supra. 1212 Compare Ruzicka v. General Motors Corp., supra. For these reasons, the Court finds there to be no breach of the Union's duty of fair representation. Since there are no genuine issues of material fact, and since the Court has determined that as a matter of law the Union has not breached its fair representation duty, Local 299's motion for summary judgment will be granted. As earlier stated, absent the alleged breach of the Union's duty of fair representation, this Court has no basis upon which to review the decision of the Joint Committee; that decision therefore must stand. Accordingly, and for the same reasons stated with respect to the defendant Union, defendant ATI's motion for summary judgment shall be granted. Appropriate orders shall be submitted. NOTES [1] The Court notes that if the strike were directed against the Union rather than ATI, it is odd that the picketing continued at the ATI terminal rather than at the Union Hall.	{ "pile_set_name": "FreeLaw" }
OFFKx OF TiiEATTORNEY GENERAL OF TEXAS AUSTIN lR ILDc .YAmi .-“-ma Ho n.Charloy b&hart State Treaeorer Austin, Texus Dear k!r.Lockhart: By your letter of J 4365 of the RsrisedCf+i procedure for the lssaan warrants by the Ct6te Cmptrolle of this Cepartzent upon the follow1 plichte warrant sense that the paid by the Treasurer? wsrrsnt IS 165Pml, it? oller to write a let- original, or does Qt0J6RtlCa~1yStop pay- he payee ha6 In his po66esslon both nd the dapllcats warrant, is it in- <” If in question three either the orlgfnal or the Cupiicate om be paid, doep the &OLCS of which is ta be paid lie tith the payee, the Traasur- er, or the State Conptroller?w &tie18 4365, B. C. S. 1925,,it ES f0llC~~S: The Comptroller,whet satiufied that any Orlgi- nal warrant dram upon the State Treasurer has been lost or deetroysd, Or uhan Amy certificate or other 808, Oharh7 Lookhartt b60 6. •~WAW 0rttwbt0en08~ •~JWO&b 7 Itb 0 ltr a stb g bati OS tha Stat0 hamboat hat, is luth o r fs %a e4 frao 8 duplioato arrant fn lko or the orfghul wur?Ont 0T l daplloatr Or a Oopr d 8uob oertiSloat, or~8thmrovidoaoa H imlobtdnoir In 110~ of ruoh otfgful~ hut a0 mob duplloatbwarrant,or other bribemaeor lndebtedners, ahalllmrtae anti1 tha lppllomt ha8 riled with the Omptrollar hl~ arfl- &tit, stating thut ho f8 thetmo maer of ruoh lnstrua6nt, aDa tht the aa8* im 1x1Saot lost or 4eBtrOfub ,and ihall all tllo rlth the Ocaptroller hfr bond in double the amount of tha olalm with two or 8ore good and mtllfloiont eQrotlo#, payableto the Governor, to + approved by tt, Comptroller, and oondftloned fliatthe &pplloantwill hold the Stat0 hatiers ab return to ttiaOcmptrollmr,upon d-nd being Jmde thararor, uch duplloatam or OOPibS, or the amount of money oeacad therein, to- gethar dth all aorta that may locrue against the State on oollecting the ~83~. After the laauanaa of 6aiU dupllcata or oopy if tha Coaiptrollsr6hOUld ascertain that the eana uaa improperly lsauod, or that t3e applicant or party to wholrr the same was lseued was not the cwner thereof, he shall at onoe demand the return ol said duplioate or oopy if un- p&id, or the mount paid out by the Stata, if so psfd; and, upon talluro of tbo party to return aanio or the amount of money -1184 tar, muit shall be InatItuted upon said bond In Travis County." Anrworiq yOur rlrst quertloa, me am of opinionthat the irauance oi thi duplioate warrant does nof %n all InstancaB rold the original warrant in the ranse that the original oanaot over be lugally pa!Q brthe Treamrer. A reading of the ontIr* prorlsians of Artlrlr 4355 would srom to lndioatr that it was tha latention or thr Leglalaturo that the OrbiMl warrant rhould be paid fr lt should turn up In the hands of an innooentholder, and that the State should proceed over an6 against the holder of the duplicatewarrant upon hfa bodl for the reoovary oi the mbunt paid out bn the dEPlicat4 rarraat by the Stat6. Tour second question lo'an~~areda8 r0ii0+76: when a duplicate warrant Is Issued,it 18 not neoeasary for the Comptroller to write a letter atopplng PaJmpnt On the orWna1.. Since a duplicate arrant 1~ only authorized to be 188~~4 no. Ohmlay Lo&hart, 96&r 8. k&n the Barptrollor br boea e8tlriled tht tbr orlglul ha bwa lad or domtro~tl, 1t im dirfirult to loa OT \udorrtaldto whar the aaptrolle? might addrem 8uch l httor step p tiq PayMEt On the O?& iBd. T h O ;ONWiOO Of tho dup llmto uarrant lutaatlrmlly rtopr -pant on the orl&ml, lnwhr a8 the orl&ml ruJ be pronted for payment by a perwa not ln lnaorent ltooldor thereab. And by tho twm %umoaat bolder,waa used in our rmply to r o ur quontione, wemm 4 person wh oh ml ro p uirth edo origiaalwarrantfrom tha pay.8 thereof, not a persom who has eopulnd the orlp$aalwarrantthroughmaas other than by rirtue OS a lauful waigmoat fram fha origl~l 9ay.a. or from 4 ptrwa to whom luoh orlglnal:warrantwas lawfully l6rlgaed by the original Qayee. overly your third quaetlon, you are advised that Artlola4668 oonttmplttos thet when the 98~00 prersatrboth the ox-i&al and the dupliocitewarinat,or bar iB hl po4sssslan both the originaland the duplleato warrant, that the original warrant thall be paid and the duplloato nrraat ahall be, at the sass time, wrrmdarod. It both thr original ad the duplloatewarrant turn up ln the hen68 of the orlgtnalpayee,. it becomesquite apparmt that tha &plloet.s must neoteserfly htvt been improperly fewed; therefore, the last etnttros of Article 4365, requiring the Camptroller in such ln~tanos to mt ome demand tha ro- turn or the duplicate, lr unpaid,governr. In ritw of the anewtrto your third qusstlon, it beoomer unnsceseary to answer your fourth question. Yours very truly R. W. Pblrohlld AE6iet.Wlt	{ "pile_set_name": "FreeLaw" }
288 F.Supp. 519 (1968) TRAVIS INVESTMENT CO., a partnership, Plaintiff, v. HARWYN PUBLISHING CORPORATION and Bankers Trust Company, Defendants. No. 64 Civ. 3862. United States District Court S. D. New York. June 17, 1968. 520 521 Colton & Pinkham, by Spencer Pinkham, New York City, for plaintiff. Gartenberg & Ellenoff, by Irving L. Gartenberg, New York City, for defendant Harwyn Publishing Corporation. OPINION BONSAL, District Judge. Plaintiff Travis Investment Company (plaintiff), a Colorado partnership, instituted this diversity action against defendants Harwyn Publishing Corporation (Harwyn) and Bankers Trust Company (Bankers), both New York corporations, for damages resulting from an alleged failure to transfer shares of Class A common stock of Harwyn (Harwyn stock). The action was discontinued as against Bankers before trial. In the pretrial order, filed on November 15, 1966, the parties stipulated that the following facts were not in dispute: 1. Travis is a money lender. On or about October 10, 1963, the plaintiff loaned $25,000 to one, Jay Cohan, a resident of Denver, originally secured by 3800 shares of Harwyn stock of which 1000 shares were subsequently returned to Mr. Cohan. On January 8, 1964, the plaintiff similarly loaned $25,000 to one, Stanley M. Singer, originally secured by 3200 shares of Harwyn stock, subsequently increased to 5300. The promissory notes given by Messrs. Cohan and Singer to the plaintiff each contained a provision that, upon any default, the plaintiff might sell the collateral at public or private sale or on any broker's board without any demand or notice to the borrower. Prior to the 1st of February, 1964, both of said notes were in default, and the plaintiff, being the holder thereof, became entitled, as between itself and the borrowers, to sell said Harwyn stock pursuant to the terms of said notes. At all times herein mentioned, Bankers was transfer agent of Harwyn's stock. 2. On or about February 20, 1964, Bankers, as transfer agent for Harwyn, received written notification from the New York Regional Office of the Securities and Exchange Commission (S.E.C.) that it (the S.E.C.) had reason to believe that shares of Harwyn stock might appear upon the market which were owned by persons in a control relationship with Harwyn and which persons might attempt to sell such shares without registration and without the availability of an exemption under the Securities Act of 1933. Bankers was requested to notify the S.E.C. in respect of any request for transfer of any of Harwyn stock. At or about the same time the S.E.C. had advised Harwyn that it had reason to believe that a control group located in Denver, Colorado, Boston, Massachusetts, and Canada was unlawfully seeking to sell shares of Harwyn stock in the over-the-counter market and requested Harwyn to advise the S.E.C. of any request for transfer of any shares originating from any of those areas prior to transfer. 3. About February 21, 1964, Travis delivered its certificates for 8100 shares of Harwyn stock to Bache & Co. (Bache), its broker, with a request that Bache sell the same as rapidly as it could, but from time to time, in an orderly manner, so as to realize as favorable prices as might be possible. 4. On February 21, 1964, Mr. Charles D. Halsey, a General Partner of Bache, spoke with Bankers and with Mr. Soloway of Gartenberg & Ellenoff, attorneys for Harwyn, and asked whether there had been any transfer stops placed against any shares of Harwyn stock. On February 25, 1964, Mr. Halsey sent a list to Mr. Soloway setting forth the names in which the certificates making up the 8100 shares of Harwyn stock were registered and the certificate numbers of each such certificate. On the 522 same day, Mr. Soloway advised Mr. Halsey that Harwyn would require a writing setting forth the name of the beneficial owner of each of the shares covered by the list and further particulars concerning ownership. 5. On February 26, 1964, Bache delivered certificates for 1000 shares thereof, together with certificates for 300 shares owned by persons other than the plaintiff, to Bankers for transfer into Bache's street name. Simultaneously, Mr. Halsey advised Mr. Soloway that he could not disclose the name of the owner of the 8100 shares until he received permission from Bache's customer but requested that the certificates be checked by number for any infirmity. Mr. Soloway, in turn, advised Mr. Halsey that such name was a prerequisite to transfer. 6. On February 28, 1964, Harwyn notified Bankers to make no transfers whatever of Harwyn's shares without prior advice to and further instructions from Harwyn, sending a copy of such letter to the S.E.C. 7. On March 6, 1964, Louis G. Isaacson, Esq., attorney for the plaintiff in Denver, wrote Mr. Soloway, as attorney for Harwyn, stating that he (Isaacson) represented the plaintiff; that he had been advised that Harwyn had refused to transfer the shares; and that, unless any stop order was immediately removed, and the shares transferred, an action would be commenced on behalf of the plaintiff for the damages suffered. Such letter disclosed the name of the plaintiff as the owner of the shares. 8. On March 10, 1964, Mr. Soloway wrote Mr. Isaacson stating that there were questions as to whether the shares referred to in Mr. Isaacson's letter were "controlled shares" and claiming to have requested Mr. Halsey to obtain the facts surrounding the ownership of said shares and an opinion from counsel for the plaintiff in respect of the possibility that the shares were being offered by members of a control group. 9. On March 12, 1964, Mr. Soloway instructed Bankers to make no transfers unless and until an opinion by counsel for any prospective transferor had been received, which set forth all of the details of ownership and included an opinion that the shares were not being offered by a member of a "control group" within the meaning of the Securities Act of 1933. 10. On March 16, 1964, Bache requested that the 1300 shares, which had been put in for transfer, be returned, and they were so returned. 11. During all of this time Harwyn kept the Regional Office of the S.E.C. advised as to all of the facts and events referred to above. 12. The bid and asked prices for shares of Harwyn stock on the over-the-counter market, as reported by the National Quotation Bureau, were as follows: BID PRICES ASKED PRICES 1964 HIGH LOW HIGH LOW FEBRUARY 25 9 8 10 9 FEBRUARY 26 8 8 9 9 FEBRUARY 27 8½ 7¾ 9¼ 8¾ MARCH 6 8¾ 8¼ 9¼ 9 MARCH 9 8½ 8½ 9¼ 9¼ MARCH 10 8¾ 8½ 9½ 9¼ APRIL 14 5¾ 5¾ 6¾ 6¾ April 14, 1964 was the last quotation for shares of Harwyn stock and thereafter there was no further published market for the shares. 523 At the trial, the following additional facts were established: 1. Plaintiff is a Colorado partnership consisting of Moss Travis and his former wife; according to Travis, plaintiff did an annual volume of business in 1963 and 1964 of $600,000 to $800,000; almost all of its loans were collateralized by local real estate or livestock. With the exception of the two loans involved here, plaintiff has made only two loans collateralized by securities. The first, in 1960 or 1961, involved securities of Consolidated Oil and Gas. After the death of the pledgor, plaintiff sold the pledged securities to a broker. Thereafter, plaintiff learned from the broker and the issuer that the securities had not been registered under the 1933 Act. The second loan was to Travis' local stock broker, Mr. Heisler, and the collateral was a small amount of Consolidated Electric Securities; no problems had arisen from this loan. 2. Plaintiff had made prior substantial loans to Jay Cohan and Stanley Singer on several occasions. At the time of the $25,000 loan to Singer in January 1964, Singer owed plaintiff $72,000 from a prior loan, which had been collateralized by real estate. At the time of the $25,000 loans to Cohan and to Singer, Travis did not ask for financial statements from Cohan or Singer and did not check out the ability of either Cohan or Singer to repay the loans. 3. On October 10, 1963, Travis met with Cohan and Singer in Travis' home, which also served as his office. Travis, acting for plaintiff, agreed to loan Cohan $25,000 for six months, with 2% interest on the unpaid balance due on the 10th day of each month. The promissory note stated that failure to make any payment of principal or interest when due shall cause the whole note to become due at once, at the option of the holder of the note. 4. As collateral for the loan, Cohan delivered to Travis about 3800 shares of Harwyn stock. Cohan had told Travis that Harwyn had a good potential for growth and good earnings. Travis checked with the Wall Street Journal, with Bache, and with others, to see whether there was a market in the stock so that the collateral could be foreclosed if necessary. 5. The 3800 shares which Cohan delivered were made up of a number of stock certificates, in denominations of 100 shares or less, mostly in "street name," that is, registered in the names of brokerage houses or securities dealers, and endorsed by them with signatures guaranteed. Travis had never before dealt with stock certificates in "street name."[1] 6. At the time of the loan, Cohan told Travis that he was going to use the money Travis was lending him to buy more Harwyn stock. 7. On November 10, 1963, Cohan paid Travis the $500 interest due under the note. Soon thereafter, at Cohan's request, Travis released 1000 shares of the Harwyn stock being held as collateral and returned the shares to Cohan. Thereafter, on December 10 and January 10, Cohan paid Travis the interest payments then due on the note. 8. On January 8, 1964, Travis agreed to loan Singer $25,000 for 30 days at 2% interest on the unpaid balance, payable in full on February 8, 1964. Travis received as collateral 3200 shares of Harwyn stock, consisting of a number of stock certificates in denominations of 100 shares or less, mostly in street 524 name. Singer told Travis that some of the 3200 shares were borrowed from either John DiAndrea, in whose name some of the certificates were registered, or Jay Cohan. 9. At the end of January 1964, Travis testified that Singer told Travis that he could not pay the loan on time but that he would deliver to Travis more shares of Harwyn stock as collateral. Travis asked for more collateral, because, as he later said, the "Harwyn deal" was becoming a "bit shaky." He said that the expression "Harwyn deal" referred to the two loans secured by Harwyn stock. 10. On February 1, 1964, Cohan and Singer told Travis that they had no money and would not be able to pay back the loans or meet the interest payments on time. Travis said that if they did not, he would consider that the loans were in default; and that he would "sell them out," that is, realize on the collateral. Cohan and Singer asked Travis not to sell them out, as it would hurt the market. 11. On February 8, 1964, the Singer note went into default for failure to pay the interest and principal then due; and on February 10, 1964, the Cohan note went into default for failure to pay the $500 of interest then due. 12. On the evening of February 11, 1964, Singer entered Travis' home through the back door and gave Travis an envelope which he said contained shares of Harwyn stock to serve as additional collateral for his loan. Travis told Singer that his note would now be payable on demand. Later that evening, Travis opened the envelope and discovered it contained certificates for 2100 shares of Harwyn stock. Most of the certificates were in street name; and the denomination of each certificate was for 100 shares or less. 13. A few days after receipt of the additional collateral, Travis told Cohan and Singer that he needed his money and would have to sell them out. Singer then told Travis that the additional collateral of 2100 shares of Harwyn stock was to serve as collateral for the loans of both Cohan and Singer. 14. On or about February 20, 1964, Travis called his stockbroker in Denver, Mr. Heisler, told Heisler he was the pledgee of 8100 shares of Harwyn stock, and said he wanted to sell the stock. Harwyn stock was then quoted at about $11 per share, at which price the 8100 shares would bring $89,000 compared to the amounts then due under the loans of some $51,000. Heisler advised Travis that it would be easier to sell such a large number of shares "out of town" and he gave Travis the telephone number of Mr. Howard Lindquist, who was employed by Bache in Chicago. 15. Travis then called Lindquist in Chicago and asked him whether Bache could sell the 8100 shares. Travis did not tell Lindquist that he had received the shares as a pledgee. Lindquist called Travis back a short time later and told him that Bache could sell the shares for him and that Travis should send them to Chicago. 16. On the same day, Travis took the shares to the First National Bank of Denver and the Bank mailed them to Bache in Chicago. They were received in Chicago on Friday, February 21, 1964. During the next few days, Travis received a phone call and met with representatives from the S.E.C.'s Denver office, who asked him about his dealings in Harwyn stock and told him that several persons in Denver were attempting to corner the market in Harwyn stock. After speaking to the S.E.C., Travis spoke several times with Cohan and Singer about Harwyn stock and learned about their dealings in the stock. Travis said that there were too many conversations for him to be able to remember the substance of any of them. 17. On February 21, 1964, Bankers called Gartenberg & Ellenoff, Harwyn's General Counsel, to advise them that Bankers had received an inquiry from 525 Bache in New York about the transfer of shares of Harwyn stock. 18. On February 25, 1964, Bache delivered to Gartenberg & Ellenoff a handwritten, three-page list, giving, with respect to each certificate composing plaintiff's 8100 shares, the certificate number, the name of the registered owner, and the number of shares each certificate was registered for; there were 84 certificates listed in 38 different names. 19. A copy of this list was hand-delivered to Mr. David Bicks of the S.E.C. in New York on the same day, pursuant to a telephone conversation between Mr. Bicks and Mr. Harvey Siegel, President of Harwyn. 20. On February 27, 1964, Mr. Soloway received a letter dated February 26, 1964, from Mr. Halsey, stating that Bache's "Legal Department has advised me that we can divulge [the name of the customer selling the Harwyn stock] to you if the customer has no objection. I will try to contact the customer to obtain approval to do this, in which case I will be glad to give it to you." 21. On February 28, 1964, Mr. Irving L. Gartenberg, Secretary and Director of Harwyn since 1961, and a member of Gartenberg & Ellenoff, wrote Mr. Llewellyn Young of the S.E.C. enclosing a copy of the letter dated February 26, 1964, from Mr. Halsey to Mr. Soloway; and a copy of a letter dated February 28, 1964, from Mr. Gartenberg to Bankers, in which Bankers was instructed "to stop all transfers, advise the Corporation and await further instructions with respect to the transfer of the certificates representing 8100 shares of [Harwyn stock] set forth on the attached list." 22. Between February 28 and March 10, 1964, there were several telephone conversations between Gartenberg & Ellenoff and Bache, and Gartenberg & Ellenoff and the S.E.C. 23. On March 9, 1964, and on March 10, 1964, Mr. Soloway received letters addressed to Bankers and to himself, both dated March 6, 1964, from Louis G. Isaacson, a lawyer in Denver. Both letters contained the subject heading "In re: Travis Investment Co." This reference to Travis Investment Company was the first indication that either Harwyn or Bankers had had as to the identity of the owner of the 8100 shares. 24. On March 12, 1964, Mr. Soloway wrote Mr. James Gaskin of Bankers to instruct him as Transfer Agent to "require all brokers handling transactions emanating from [Canada, Colorado, and Boston, Massachusetts] to obtain and deliver to this office a letter of opinion from counsel of its customer setting forth the facts relating to the proposed transfer, including the ownership and/or beneficial ownership of said shares * * * and an opinion of such counsel that such shares are not * * being offered by a member of or a control group." 25. On March 16, 1964, Mr. Gartenberg wrote Mr. Bicks of the S.E.C. that "Bankers had been requested by Bache * * * to return the certificates representing 1300 shares of [Harwyn] stock which heretofore they were attempting to transfer on behalf of a customer in Denver, Colorado * * * We have instructed Bankers * * * to return without transfer these certificates to Bache * * " The foregoing constituting the Court's findings of fact, the Court makes the following conclusions of law, Rule 52(a), F.R.Civ.P.: Under New York law as it was prior to the adoption of Article 8 of the Uniform Commercial Code,[2] the plaintiff (as purchaser) had the right to have its shares registered for transfer on the books of the corporation, Cooper v. Gossett, 263 N.Y. 491, 189 N.E. 562 (1934); Casey v. Kastel, 237 N.Y. 305, 526 142 N.E. 671, 31 A.L.R. 995 (1924); Travis v. Knox Terpezone, 215 N.Y. 259, 109 N.E. 250, L.R.A.1916A, 542 (1915); see in general, N.Y. Law Revision Commission, Study of Uniform Commercial Code, Article 8 110 (1955) (hereinafter cited as Commission Study), if he was a good faith purchaser for value, without notice of any facts making the transfer wrongful, see Jackson Heights Courts v. 171 Twenty-Fourth Street, 83 N.Y.S.2d 424 (Sup.Ct.1948), modified, 274 App. Div. 1070, 85 N.Y.S.2d 618, aff'd, 299 N.Y. 650, 87 N.E.2d 54 (1949), Mason v. Public National Bank & Trust Co. of New York, 262 App.Div. 249, 28 N.Y.S. 2d 416 (1941), aff'd, 287 N.Y. 809, 41 N.E.2d 91 (1942), Commission Study at 112. At trial, Harwyn put into issue the plaintiff's good faith by showing the circumstances under which the plaintiff took the 8100 shares of Harwyn stock as pledges and from which the plaintiff should have become aware or been put on notice that a transfer of the shares of Harwyn stock might be wrongful under the 1933 Act, see S.E.C. v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert. denied sub nom. Santa Monica Bank v. S.E.C., 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); also, see Sargent, Pledges and Foreclosure Rights under the Securities Act of 1933, 45 Va. L.Rev. 885 (1959); a failure to inquire further where circumstances put one on notice of a wrongful transfer constitutes a lack of good faith, Mason v. Public National Bank, supra, and the plaintiff would thereby be charged with knowledge of the wrongfulness of the transfer which an inquiry would have revealed. However, even if plaintiff acted in good faith, Harwyn could refuse to register the shares upon presentation if it had reasonable grounds for doing so, Luitwieler v. Luitwieler Pumping Engine Co., 118 Misc. 192, 192 N.Y.S. 891, 893 (Sup.Ct.1922), see Doliner v. Eastern Can Co., (N.Y.Law Journal, p. 17, col. 4, June 2, 1965), aff'd 25 A.D.2d 719, 268 N.Y.S.2d 970 (1966), Commission Study at 112, 119, such as having received information of a possibly wrongful transfer because of doubtful title, Hillary Holding Corporation v. Brooklyn Jockey Club, 88 N.Y.S.2d 198, 201 (Sup. Ct.1949), cf. Van Schaick v. National City Bank of New York, 245 App.Div. 525, 283 N.Y.S. 372 (1935). It is clear that under the circumstances here, Harwyn had reasonable grounds to refuse to authorize the transfer of shares when they were first presented by Bache to Bankers on February 21, 1964. At that time, both Bankers and Harwyn had been notified in written form by the S.E.C. that shares of Harwyn stock might be presented for transfer by persons in a control relationship with Harwyn. Harwyn and Bankers were, thus, aware of a proposed transfer which might be a "wrongful" transfer under the 1933 Act, see Sargent, Pledges and Foreclosures, supra; S.E.C. v. Guild Films Co., supra. Thereafter, Bache delivered 1000 of plaintiff's shares to Bankers for transfer, indicating, with respect to the ownership of the shares, only that the owner was from Denver, Colorado. By this time, the S.E.C. had told Harwyn that the control group about which the S.E.C. was concerned originated from Denver, among other places. Knowing that the owner was from Denver, Harwyn acted reasonably in seeking further information as to the identity of the owner and a legal opinion from plaintiff's counsel that the shares were not being tendered by a "control group." From the time that the shares were first received by Bache and tendered to Bankers on February 21, 1964, until the shares were withdrawn by Bache on March 16, 1964, a period of 24 days, including 17 market days, had elapsed. This is not an unreasonable time for Harwyn to refuse to transfer the shares, pending receipt of further information which it had a right to request. Compare U.C.C. § 8-403(2) (30 days presumed to be reasonable). *527 Therefore, plaintiff has not proved that Harwyn's refusal to transfer the shares was wrongful and in violation of its duty to plaintiff; and Harwyn has established that its refusal to transfer the shares and its request for more information as to ownership and control was reasonable. The Clerk may enter judgment for defendant Harwyn dismissing the complaint with costs. It is so ordered. NOTES [1] Some of the street name certificates were registered in the name of Bache. William J. Goldenblum, Regional Counsel for Bache, who testified for plaintiff at trial, stated that it was very unusual for a Bache customer to have securities in his possession registered in Bache's street name. He stated that, as a general policy, a customer of Bache or other brokerage houses would not be permitted to retain securities in street name but would be required to have them registered in his own name. Securities in street name are customarily held by the brokerage houses in their vaults. [2] The Uniform Commercial Code does not apply to this action because the events in this action occurred before September 27, 1964, the effective date of the Uniform Commercial Code in New York, §§ 10-101, 10-105.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 30, 2005 Charles R. Fulbruge III Clerk No. 04-40541 Conference Calendar UNITED STATES OF AMERICA Plaintiff - Appellee v. GABRIEL MARTINEZ - ESPARZA Defendant - Appellant -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:03-CR-968-1 -------------------- ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. PER CURIAM:* This court affirmed the conviction and sentence of Gabriel Martinez-Esparza. United States v. Martinez-Esparza, 117 Fed. Appx. 984, 984-85 (5th Cir. 2004) (unpublished). The Supreme Court has vacated and remanded for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). We now REINSTATE our earlier opinion and judgment affirming the district court’s final judgment. However, we substitute the following * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-40541 -2- revised analysis for the portion of our opinion addressing Martinez-Esparza’s challenge to his sentence based on Blakely v. Washington, 542 U.S. 296 (2004); Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In his original brief, Martinez-Esparza argued that his sentence was unconstitutional because the district court sentenced him based on facts that were not charged in the indictment, admitted by him, or proven to a jury beyond a reasonable doubt. In a supplemental brief, Martinez-Esparza reiterates the arguments in light of Booker. He also argues that the district court erred by sentencing him under the mandatory Sentencing Guidelines scheme held unconstitutional in Booker. As Martinez-Esparza raises his arguments for the first time on appeal, the district court’s actions are reviewed for plain error only. See United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517); United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir. 2005). Martinez-Esparza has satisfied the first two prongs of the plain error analysis by showing that the district court committed error that was plain. See Mares, 402 F.3d at 520-21; Martinez-Lugo, 411 F.3d at 600. As Martinez-Esparza acknowledges, however, he has not satisfied the third prong of the plain error analysis by showing that the error affected his substantial rights. See Mares, 402 F.3d at 521-22; Martinez-Lugo, 411 F.3d at 600-01; United States v. Bringier, 405 No. 04-40541 -3- F.3d 310, 318 & n.4 (5th Cir. 2005), petition for cert. filed (July 26, 2005) (No. 05-5535). Martinez-Esparza correctly acknowledges that this court has rejected the argument that a Booker error is a structural error or that such error is presumed to be prejudicial. United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for cert. filed (July 11, 2005) (No. 05-5297); Martinez-Lugo, 411 F.3d at 601. He likewise concedes that our precedent forecloses his contention that application of Booker’s remedial opinion to him violates the Ex Post Facto Clause. See United States v. Scroggins, 411 F.3d 572, 577 (5th Cir. 2005). He raises these arguments solely to preserve them for further review. Nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case. PRIOR JUDGMENT REINSTATED.	{ "pile_set_name": "FreeLaw" }
510 U.S. 948 Niemela et ux.v.United States. No. 93-514. Supreme Court of United States. November 1, 1993. 1 Appeal from the C. A. 1st Cir. 2 Certiorari denied. Reported below: 995 F. 2d 1061.	{ "pile_set_name": "FreeLaw" }
785 F.2d 247 J.L. LAVENDER and Mary Lavender, Individually, and J.L.Lavender d/b/a Lavender Construction Company, Appellees,v.WOOD LAW FIRM, Appellant. No. 85-1690. United States Court of Appeals,Eighth Circuit. Submitted Nov. 26, 1985.Decided March 3, 1986. C. Keith Griffith, Little Rock, Ark., for appellant. There was no brief filed by appellees. Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge. PER CURIAM. 1 The Wood Law Firm appeals a district court's1 summary affirmance of a bankruptcy court's2 order directing it to reimburse the bankruptcy estate for fees it had received. We affirm. 2 Appellant made this application for compensation pursuant to Bankruptcy Rule 2016 for services provided to J.L. Lavender and Mary Lavender, individually, and J.L. Lavender d/b/a Lavender Construction Company. The Lavenders are seeking reorganization under Chapter XI of the Bankruptcy Code. 11 U.S.C. Secs. 1101 et seq. The bankruptcy court had authorized the Lavenders to employ appellant to represent them as debtors-in-possession. Appellant sought $23,951.00 in fees for work done between October 1, 1982 and November 16, 1983. Appellant admitted having been previously paid $16,022.33 by the Lavenders. These payments were made without notice to creditors and without specific court approval. The bankruptcy court denied appellant's application and ordered it to reimburse the estate for funds received without authorization. The bankruptcy court did authorize appellant to receive $8,337.27 in fees and expenses to be paid once appellant reimburses the estate. The district court summarily affirmed the bankruptcy court's order. 3 An attorney hired to represent a debtor-in-possession must give notice to creditors and receive court approval prior to being compensated by the estate. 11 U.S.C. Sec. 330; Bankruptcy Rule 2016. Without such prior approval, ordinarily subsequent applications for fees should be denied and the funds received should be ordered returned to the estate. However, in limited circumstances, the bankruptcy court as a matter of fundamental fairness may exercise its discretion and enter a nunc pro tunc order authorizing compensation. See In re Triangle Chemicals, Inc., 697 F.2d 1280, 1284-85 (5th Cir.1983). This discretion arises from the bankruptcy court's powers as a court of equity. See Johnson v. First National Bank of Montevideo, 719 F.2d 270, 273 (8th Cir.1983), cert. denied, 465 U.S. 1012, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984).3 4 Here, appellant clearly failed to comply with the notice and application requirements of the Bankruptcy Code and Rules. The bankruptcy court refused to exercise its discretion to retroactively authorize appellant's request. The facts of this case support the court's restraint. Appellant had sufficient experience to know of the Code's notice and application requirements. Moreover, the record indicates a general lack of activity and success on the part of the appellant in moving the case forward. Therefore, we affirm the court's direction to the appellant to reimburse the estate for fees received without approval. 1 The Honorable Elsijane T. Roy, United States District Judge, Eastern and Western Districts of Arkansas 2 The Honorable James G. Mixon, United States Bankruptcy Judge, Eastern and Western Districts of Arkansas 3 Such exercise of discretion is not barred by this court's decision in Albers v. Dickinson, 127 F.2d 957 (8th Cir.1942). That decision was explicitly limited to interpretation of Supreme Court orders promulgated under the old Bankruptcy Act. Moreover, Albers did not address the question whether nunc pro tunc orders could be issued in proper circumstances	{ "pile_set_name": "FreeLaw" }
480 F.Supp. 58 (1979) Maureen O'Connor SMITH, Guardian of the Person and Estate of Dwight C. Smith, also known as D. C. Smith, and the United States of America, Plaintiffs, v. ST. LUKE'S HOSPITAL, a corporation, Kumar Kelker, M.D.; C. L. Vogele, M.D.; Kennon E. Broadhurst, M.D.; and Chung Shien Yu, M.D., Defendants. Civ. No. 79-1031. United States District Court, D. South Dakota, N. D. September 24, 1979. 59 R. P. Murley, Asst. U. S. Atty., Sioux Falls, S.D., for the U. S. Joe L. Maynes, Maynes, Tonner, Maynes & Tobin, Aberdeen, S.D., for Maureen O'Connor Smith; Mark D. Ravreby, M.D., West Des Moines, Iowa, of counsel. Joseph H. Barnett, Siegel, Barnett, Schutz, O'Keefe, Jewett & King, Aberdeen, S.D., Deming Smith, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for defendants. Chester A. Groseclose, Jr., Richardson, Groseclose, Kornmann & Wyly, Aberdeen, S.D., for defendant Chung Shien Yu, M.D. 60 MEMORANDUM OPINION DONALD J. PORTER, District Judge. FACTUAL BACKGROUND This action was originally brought in the Circuit Court for the Fifth Judicial Circuit, Brown County, South Dakota, by Maureen O'Connor Smith, as Guardian of the Person and Estate of Dwight C. Smith. Mrs. Smith sought recovery for injuries to Mr. Smith, which were alleged to have been caused by negligence of defendants St. Luke's Hospital, Dr. Kumar Kelkar, Dr. C. L. Vogele, Dr. Kennon Broadhurst and Dr. Chung Shien Yu. The United States intervened in the state court action because the Veterans' Administration had provided medical care for Mr. Smith for injuries allegedly resulting from defendants' negligence. See 38 U.S.C. § 610; 42 U.S.C. § 2651. After intervening, the United States removed the case to this court. Defendants have moved for an order remanding the case to the state court. The motion will be granted on the grounds that this case was removed improvidently and without jurisdiction in this court. The United States removed this case under 28 U.S.C. § 1441(c). That subsection applies where a removable claim or cause of action is joined with a non-removable claim or cause of action, and allows the court to remand those claims not within the original jurisdiction of the federal court, or to retain the whole case. The Government contends that the separate claim could properly have been brought originally in this court, because 28 U.S.C. § 1345 gives United States District Courts original jurisdiction over actions brought by the United States. Thus, the Government contends, this case fits within the words of 28 U.S.C. § 1441(c). Defendants argue, on the other hand, that the statute does not apply to this situation. If the claims are separate,[1] defendants argue that only defendants can remove a case under 28 U.S.C. § 1441, and that the United States is properly denominated a plaintiff in this action. Defendants also argue that a claim based on intervention can never be the basis for removal, but that removal must be based on claims originally joined by the original plaintiff. ISSUES The issues to be determined are as follows: (1). May the United States, as a plaintiff, remove under 28 U.S.C. § 1441? (2). May the United States, as an intervenor, remove under 28 U.S.C. § 1441? DECISION I. Removal By a Plaintiff. Since 28 U.S.C. subsection 1441(c) does not, like subsections 1441(a) and (b), explicitly state that only a "defendant" may remove under it, the Government argues that any party may make use of this statute. For several reasons, we cannot agree. First, the right to remove is purely statutory, and is to be strictly construed in an effort to promote "the rightful independence of state governments, . . . [and] requires that [the federal courts] scrupulously confine their own jurisdiction to the precise limits which the statute has defined". Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934). In promoting this policy, the Supreme Court of the United States has resolved 61 doubts in construction of removal statutes against removal, and has refused to expand removal jurisdiction when such expansion could be avoided. Shamrock Oil Corp., supra. Second, the history of general removal statutes indicates that Congress has only rarely given plaintiffs the right to remove, and has specifically spelled out that right on those occasions. From 1875 to 1887, 18 Stat. 470, the statute governing removal, specifically gave either party the right to remove. From 1867 to 1948, either party was permitted to remove on grounds of prejudice and local influence, 14 Stat. 558. See Shamrock Oil Corp., supra; 1A (Part 1) Moore's Federal Practice 114-115 (1979). 28 U.S.C. § 1441(c) contains no such specific authorization allowing a plaintiff to remove. In light of this history, the court believes that if Congress had intended to give plaintiffs a right to remove under the general removal statute, it would have so stated. Southland Corp. v. Estridge, 456 F.Supp. 1296 (C.D.Calif.1978). Finally, we doubt that a plaintiff, who has invoked the jurisdiction of the state court and submitted himself to it, should be allowed to remove in absence of a specific Congressional authorization. After a plaintiff has decided to bring his action in state court, he is not in a position to complain that the action was not brought in federal court. In restricting removal to defendants, the purpose of 28 U.S.C. § 1441 is to restrict the right of removal to those who had no choice in selection of a forum. Southland Corp. v. Estridge, supra; Victorias Milling Co. v. Hugo Neu Corp., 196 F.Supp. 64, 68 (S.D.N.Y.1961). A plaintiff is not such a party. This is also true with the government in this case. It is a plaintiff by intervention in the state court action. The claim could, however, have been pursued alone in the federal court without intervention in the state court action. See cases cited at footnote one, supra. The Government chose not to pursue its separate claim in federal court. After having made such a voluntary choice, no party will be heard to complain of that choice where Congress has not specifically authorized the complaint. For these reasons alone, the case must be remanded. II. Intervention as a Basis for Removal. We are also of the opinion that intervention by a party with a cause of action cognizable in federal court cannot serve as a basis for removal. See 1A (Part 1) Moore's Federal Practice 421-24 (1979). Aside from the considerations discussed above concerning the position of a plaintiff seeking removal, there are independent reasons why a person not an original party to the suit, particularly an intervenor, should not be allowed to create federal jurisdiction. Lauf v. Nelson, 246 F.Supp. 307 (D.Mont. 1965); Willingham v. Creswell-Keith, Inc., 160 F.Supp. 741 (W.D.Ark.1958). The case against allowing an intervenor to remove is particularly strong where the intervenor's claim is a separate cause of action upon which the intervenor could bring his own action in federal court. Aside from considerations of judicial economy, which cannot in any event confer subject matter jurisdiction, Gamble v. Cent. of Georgia R.W. Co., 486 F.2d 781, 783 (5th Cir. 1973), there is little reason for such an intervenor to bring someone else's lawsuit into federal court with him. Given this fact, and the policy of strict limitations on removal jurisdiction adopted in Shamrock Oil Corp., supra, we do not believe that an enlargement of such jurisdiction is appropriate. Although the Government may have had a right to start its own lawsuit in federal court, it has no right to bring another with it. See Lowe's of Montgomery, Inc. v. Smith, 432 F.Supp. 1008 (M.D.Ala.1977). Finally, we note that by adopting 28 U.S.C. § 1441(c), the Congress intended to contract, rather than expand, removal jurisdiction. Shamrock Oil Corp., supra. A holding that an intervenor-plaintiff can remove would be an unwarranted expansion of jurisdiction by use of a statute, the purpose of which is the exact opposite. The Motion to Remand this case to state court is granted on the grounds that the 62 case was removed improvidently and without jurisdiction in this court. NOTES [1] The Government seeks recovery under 42 U.S.C. § 2651, which allows the United States to recover funds expended in cases of this type. This statute has been consistently construed to give the Government a separate claim from that of the injured party, see United States v. Moore, 469 F.2d 788 (3d Cir. 1972); United States v. Gera, 409 F.2d 117 (3d Cir. 1969); United States v. York, 398 F.2d 582 (6th Cir. 1968); United States v. Merrigan, 389 F.2d 21 (3d Cir. 1968); United States v. Ft. Benning Rifle and Pistol Club, 387 F.2d 884 (5th Cir. 1967); Govt. Employees Ins. Co. v. United States, 376 F.2d 836 (4th Cir. 1967). The Government thus had the right to sue in federal court. The question in this case, however, is whether, after having chosen to intervene instead of suing in federal court, the Government can now change its mind and remove.	{ "pile_set_name": "FreeLaw" }
Case: 15-11135 Document: 00513685850 Page: 1 Date Filed: 09/20/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-11135 FILED Summary Calendar September 20, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. LUCAS CARBAJAL-GONZALEZ, also known as Lucas Carbajal, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:14-CR-201-1 Before REAVLEY, OWEN, and ELROD, Circuit Judges. PER CURIAM: * Lucas Carbajal-Gonzalez pleaded guilty to conspiring to possess with intent to distribute methamphetamine, and he was sentenced within the applicable guidelines range to 240 months of imprisonment. For the first time on appeal, he challenges the sufficiency of the factual basis for his guilty plea and the procedural reasonableness of his sentence. We review for plain error. See United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (factual basis); * 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: 15-11135 Document: 00513685850 Page: 2 Date Filed: 09/20/2016 No. 15-11135 United States v. Benitez, 809 F.3d 243, 249 (5th Cir. 2015), cert. denied, 136 S. Ct. 1694 (2016) (sentence). To prove a conspiracy under 21 U.S.C. § 846, the Government had to establish that (1) an agreement existed between two or more persons to violate the narcotics laws, (2) Carbajal-Gonzalez knew of the existence of the agreement, and (3) he voluntarily participated in the conspiracy. See United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011). In this case, Carbajal-Gonzalez admitted that he received methamphetamine from unknown individuals in Arkansas and Texas; that on occasion, he delivered methamphetamine to others in Dallas and Fort Worth, Texas; and that he was arrested on his way to Fort Worth in possession of approximately two kilograms of methamphetamine. In addition, the presentence report (PSR)—which the district court adopted without objection—contained facts and circumstances, including corroborated statements of a confidential informant, from which an agreement to violate federal drug laws and Carbajal-Gonzalez’s knowledge and participation could be inferred. See United States v. Lechuga, 888 F.2d 1472, 1476-77 (5th Cir. 1989). Further, the facts set forth in the PSR support the conclusion that at least one other coconspirator did exist and that Carbajal-Gonzalez conspired with him; thus, contrary to Carbajal-Gonzalez’s argument, the factual basis is not insufficient because it fails to identify any other coconspirators by name. See United States v. Mitchell, 792 F.3d 581, 582-83 (5th Cir. 2015) (per curiam). Nothing suggests that Carbajal-Gonzalez was merely an acquirer or street-level user, such that the buyer-seller exception would apply in his case. See United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en banc). Moreover, even assuming Carbajal-Gonzalez could show a clear or obvious error, he has not shown a reasonable probability that, but for the error, 2 Case: 15-11135 Document: 00513685850 Page: 3 Date Filed: 09/20/2016 No. 15-11135 he would not have entered his guilty plea. See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Accordingly, Carbajal-Gonzalez has not shown that the district court plainly erred in finding a legally sufficient basis for his guilty plea. See Trejo, 610 F.3d at 313, 317. In his first sentencing challenge, Carbajal-Gonzalez complains about the district court’s imposition of the two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. However, his argument that a ranch does not qualify as a “premises” under the Guidelines misconstrues the record, as the PSR explicitly referred to a house, or residence, on a ranch near Little Rock, Arkansas. Carbajal-Gonzalez offers no legal support for his conclusory argument that a premises must be specifically identified as a prerequisite to its use for the application of a § 2D1.1(b)(12) enhancement. Further, he presented no evidence to rebut the informant’s statements that the house on the ranch was used to store kilogram-quantities of drugs. See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013). Carbajal-Gonzalez has not shown that the district court plainly erred in applying § 2D1.1(b)(12) in this case. See id.; § 2D1.1(b)(12) & cmt. n.17. We turn next to Carbajal-Gonzalez’s argument that the district court erred in applying the two-level leadership or management role enhancement under U.S.S.G. § 3B1.1(c). Here, the PSR recounted, inter alia, that Carbajal- Gonzalez sometimes used the informant’s residence as a staging location for shipments of heroin; that he instructed the informant to receive delivery of a truck that was payment for a quantity of methamphetamine; that he supplied an individual in Dallas with three kilograms of heroin per week; that he sent an individual to Fort Worth in June 2014 to obtain a drug shipment; and that 3 Case: 15-11135 Document: 00513685850 Page: 4 Date Filed: 09/20/2016 No. 15-11135 an individual who worked for Carbajal-Gonzalez was arrested in New York in July 2014 with two kilograms of heroin. Based on this information, the district court could infer that Carbajal-Gonzalez exercised managerial responsibility over at least one other participant in the conspiracy. See § 3B1.1(c) & cmt. n.2; United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). Additionally, Carbajal-Gonzalez’s contention that none of the aforementioned persons qualified as a “participant” under § 3B1.1 is meritless. Even assuming the informant did not qualify as a participant, the other individuals referenced in the PSR did. See § 3B1.1, cmt. n.1; see also United States v. Mitchell, 792 F.3d 581, 582-83 (5th Cir. 2015) (per curiam) (noting that coconspirators do not need to be identified). Nothing in the record supports a finding, as Carbajal- Gonzalez suggests, that the unnamed individuals were merely customers or end-users. Finally, Carbajal-Gonzalez challenges the two-level importation enhancement he received under § 2D1.1(b)(5). However, his newly asserted challenges to the importation enhancement raise factual issues which could have been resolved by the district court upon proper objection at sentencing, and he therefore cannot show plain error. See United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994). Carbajal-Gonzalez’s argument that the Guideline has a mens rea requirement is foreclosed by United States v. Serfass, 684 F.3d 548, 552 (5th Cir. 2012). The judgment of the district court is AFFIRMED. 4	{ "pile_set_name": "FreeLaw" }
IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) CLASON V. CLASON NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). RACHELLE A. CLASON, APPELLEE, V. STEVEN E. CLASON, APPELLANT. Filed October 25, 2016. No. A-15-626. Appeal from the District Court for Furnas County: DAVID URBOM, Judge. Affirmed in part, and in part reversed and remanded with directions. Siegfried H. Brauer, of Brauer Law Office, for appellant. Jaclyn N. Daake, of Duncan, Walker, Schenker & Daake, P.C., L.L.O., for appellee. MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges. RIEDMANN, Judge. I. INTRODUCTION Steven A. Clason appeals from a decree of dissolution entered by the district court, which dissolved his marriage to Rachelle A. Clason, divided the marital assets and debts, and ordered Steven to pay Rachelle an equalization payment in the amount of $150,000. Subsequent to the trial, Steven filed a motion for a new trial, which was denied by the district court. Steven now appeals, and for the reasons that follow, we affirm in part, and in part reverse and remand with directions. Upon our review of the record, we find that the district court erred in failing to classify the 2013 and partial 2014 real estate taxes as a marital debt. We also find plain error in the trial court’s calculation of the amount of Steven’s premarital debt that was paid using marital funds. As a result -1- of these errors, we remand the matter to the district court to recalculate the marital estate and redistribute the assets and debts between the parties. II. BACKGROUND Steven and Rachelle were married on May 29, 2006. No children were born of the marriage; however, Rachelle had two minor children from a prior marriage. On May 23, 2014, Rachelle filed a petition for dissolution of marriage. Almost immediately thereafter, she used marital funds to purchase a single family home in Beaver City, Nebraska for her and one of her sons. In the petition, Rachelle specifically asked that the parties’ marriage be dissolved, that their marital assets and debts be equitably divided, that her maiden surname be restored, and that she be awarded alimony and attorney fees. On July 23, 2014, Steven filed an answer. In his answer, he denied that the marriage could not be salvaged and asked that the court refuse to dissolve the parties’ marriage. Trial was held on March 4, 2015. The parties’ trial testimony centered on whether their marriage was irretrievably broken as well as the value of the marital estate. In particular, much of the testimony focused on the classification of various assets and debts as well as the amount of premarital debts that had been satisfied with marital funds. At the close of trial, both parties agreed to submit written closing arguments. At trial, Rachelle testified that she believed her marriage to Steven was broken beyond repair. She stated that there had been multiple incidents involving Steven’s family that had negatively impacted the marriage, including receiving harassing phone messages and being physically assaulted by his brother. Rachelle also testified to an altercation between her oldest son and Steven, which led to her son moving out of state to live with his biological father. Along with these incidents, Rachelle stated that she did not feel like Steven put their family first before his own family, despite having spoken with him about her concerns. Apart from familial disputes, Rachelle testified that she and Steven would often get into disagreements and that such disagreements were having a negative effect on her health. She stated that approximately one month prior to filing the petition for dissolution, Steven abused her trust when he used her bid number at an auction to purchase more than $80,000 worth of items without her knowledge or consent. Rachelle testified that prior to moving out, she had tried to communicate more effectively with Steven to resolve their problems and that they discussed counseling, although they never attended. She finally decided to move out in May 2014 because she felt that the marital home was an unhealthy place for her and her youngest son to live. Upon moving out, Rachelle said that she received multiple bothersome emails and letters from Steven about her decision to leave him. Steven admitted that there was room for improvement in his marriage to Rachelle and that he had sought advice from his pastor on a monthly basis several years prior to the time of separation. He emphasized that since filing for dissolution, Rachelle had initiated contact with him on several occasions and such contact had not been contentious. Steven testified that he had previously asked Rachelle if she would consider counseling and her response was to the effect of, “not at this time.” He stated that he believed their marriage was not irretrievably broken and that Rachelle had not taken reasonable efforts to preserve their union. -2- The parties also testified regarding various assets that Steven owned prior the marriage. Both parties agreed that all of the farm land, including the land upon which the marital home was located, was premarital land belonging to Steven. Steven testified about various premarital assets, including household items and farm machinery, which he claimed were disposed of during the marriage and never replaced. Both parties testified that, approximately 10 months into the marriage, Steven filed for bankruptcy. Rachelle stated that they did not jointly file for bankruptcy because all of the debts were related to running the farm and she did not think it would be fair to file jointly since those debts had accrued prior to their marriage. Steven’s premarital debts included in the bankruptcy filing consisted of land debt, a lien on cows, liens on farm machinery, prior real estate taxes, and a lien on Steven’s 2004 pickup. The bankruptcy filing also included approximately $20,000 of credit card debt, although Steven and Rachelle presented conflicting testimony regarding whether this debt was premarital. Rachelle testified that all of these debts except the land debt and the machinery debt were eventually paid off using marital funds. According to the evidence, the land debt was reduced by $49,000 and the farm machinery debt was reduced by $69,875. The trial court heard testimony regarding various debts that Steven claimed should be classified as marital. He testified that the second half of the 2013 real estate taxes and the prorated 2014 real estate taxes for the parties’ property should be considered marital debts since the expenses arose during the time that Rachelle was still living with Steven and benefiting from the income produced on the land. Steven next claimed that a $35,000 debt for “unpaid bills” should be classified as a marital liability on the basis that it was for expenses that arose during the marriage. However, when asked specifically what those unpaid bills were, Steven was unable to elaborate beyond the description previously provided in the joint property statement that the debt was for feed, utilities, and attorney’s fees. Steven reported that the farm was involved in two lawsuits--a suit initiated by the Department of Environmental Quality (DEQ) and another regarding the Clason Living Trust. He testified that Rachelle was not a party to either suit nor had she been involved in the litigation. Rachelle stated that she was not aware of the DEQ lawsuit and believed that the matter had already been resolved. Steven further claimed that the attorney’s fees for those two lawsuits were separate and apart from the attorney’s fees included in the $35,000 figure. The parties also testified regarding whether Steven had already purchased and planted any crops at the time that Rachelle moved out. Rachelle stated that she left around planting season and she believed that Steven had either been in the process of planting crops or that he had already finished. Steven testified that he had not planted any row crops at that time nor did he believe that he had any alfalfa in the ground yet. However, he later admitted that while he may not have had anything planted in the ground before Rachelle left, he had already purchased seed and paid for some of the crop chemical application. In its decree, the trial court determined that a 2003 Kia Sedona was Rachelle’s premarital property, and thus, belonged solely to her. It determined that the farm real estate, including the marital home, the majority of the cattle, and much of the farm equipment was Steven’s premarital property and belong solely to him. Regarding marital property, the court awarded Rachelle the home she had purchased in Beaver City, Nebraska, her 2010 Dodge Journey, and various items of -3- personal and household property. The court awarded Steven the farm equipment and machinery, and the majority of household items. The trial court determined that the credit card debt paid off under Steven’s bankruptcy filing should be considered Steven’s premarital debt. The crop seed expense at the time that Rachelle moved out was classified as a marital asset and assigned to Steven. The 2013 and 2014 real estate taxes were classified as nonmarital debt as a lien on premarital property. The trial court disregarded the claimed $35,000 debt for “unpaid bills.” After assigning the assets and debts, the trial court ordered Steven to make an equalization payment to Rachelle in the amount of $150,000. The court determined this amount by subtracting each party’s assigned debts from his or her assets and then finding the difference between the two net totals. The court found that Rachelle had a net total of $87,850 and Steven had a net total of $397,497. The trial court then took roughly half the difference between the net totals and ordered an equalization payment in that amount. The decree did not award any alimony or attorney’s fees. Steven now appeals from the decree of dissolution. III. ASSIGNMENTS OF ERROR On appeal, Steven asserts, restated, that the trial court erred in (1) finding evidence sufficient to determine that the marriage was irretrievably broken; (2) its calculations regarding marital property and in imposing an equalization judgment on Steven in the amount of $150,000 in favor of Rachelle; and (3) failing to order a new trial on Steven’s motion. IV. STANDARD OF REVIEW An appellate court’s review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Longo v. Longo, 266 Neb. 171 (2003). This standard of review applies to the trial court’s determinations regarding the division of property, alimony, and attorney fees. Id. An abuse of discretion occurs when the trial court’s reasoning or ruling is based upon reasons that are untenable or unreasonable, and as a result a litigant is deprived of a substantial right and denied just results in the matter. Coufal v. Coufal, 291 Neb. 348 (2015). V. ANALYSIS 1. MARRIAGE IRRETRIEVABLY BROKEN Steven asserts that the trial court erred in finding sufficient evidence to determine that his marriage to Rachelle was irretrievably broken. Specifically, he claims that Rachelle has not demonstrated sufficient effort to preserve their marriage and that she should be required to do so before the court finds the marriage to be beyond repair. Pursuant to Neb. Rev. Stat. § 42-361(2) (Cum. Supp. 2012), if one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken. The Nebraska Supreme Court has held that when the relationship of two married parties has deteriorated to the point that they can no longer reside with one another, the marriage is irretrievably broken. Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980). In reviewing the -4- sufficiency of the evidence, an appellate court may give weight to the trial court’s observations of the witnesses and their manner of testifying as well as the trial court’s acceptance of one version of facts over another. Id. In this case, Steven and Rachelle presented conflicting evidence regarding whether their marriage was irretrievably broken. Steven claimed that Rachelle had demonstrated little to no effort to resolve their marital problems and that there was not sufficient evidence to find that their marriage could not be salvaged. Conversely, Rachelle testified to ongoing problems in their marriage, such as conflicts between Steven and her oldest son as well as conflicts with Steven’s family, including physical altercations. She also testified to Steven’s abuse of her trust and his refusal to address her concerns that he did not put their family first. Rachelle stated that she had made efforts to preserve their marriage, including communicating more with Steven and discussing counseling. Despite this, Rachelle continued to feel that the marriage was unhealthy and moved out of the marital home in May 2014. Almost immediately, she purchased a home of her own and filed for divorce. Regardless of how Steven viewed the marriage, Rachelle’s actions and testimony made it clear that she did not believe their marriage could be salvaged and she had no intention of reconciling with him. When reviewing conflicting evidence, this court will give weight to the factual determinations made by the trial court. Based upon the record before us, we find no abuse of discretion in the trial court’s determination that the marriage was irretrievably broken. Therefore, there is no merit in this assignment of error. 2. CALCULATIONS OF MARITAL ESTATE Steven next asserts that the trial court abused its discretion in its calculations regarding the marital estate. Specifically, he argues that the court erred in disregarding a marital debt of $35,000, assigning $20,000 of premarital credit card debt against him, not classifying the 2013 and partial 2014 real estate taxes as a marital debt, failing to credit him for substantial premarital assets, and in classifying his 2014 crop seed expense as a marital asset. Upon our de novo review of the record, we find that the trial court erred in classifying the real estate taxes as a nonmarital debt. We also find plain error in the trial court’s calculations regarding the amount of Steven’s premarital debt paid with marital funds. Accordingly, we affirm in part, and in part reverse and remand with directions. Before we address Steven’s specific assertions in regard to the calculation of the marital estate, we briefly review the controlling legal principles. Pursuant to Neb. Rev. Stat. § 42-365 (Reissue 2008), the “purpose of a property division is to distribute the marital assets equitably between the parties.” Sellers v. Sellers, 294 Neb. 346, 882 N.W.2d 705, (2016). However, the marital estate is not divided by a rigid mathematical formula. McCollister v. McCollister, 219 Neb. 711, 365 N.W.2d 825 (1985). “The ultimate test in determining the appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.” Sellers v. Sellers, supra. It is well established that the equitable division of property is a three-step process. First, the court classifies the parties’ property as marital or nonmarital, setting aside any nonmarital property to the party who brought that property to the marriage. Next, the court values the marital assets and marital liabilities of the parties. Lastly, the court calculates and divides the net marital estate between the parties in accordance with the principles contained in § 42-365. Id. In general, -5- all property accumulated and acquired by either spouse during marriage is considered part of the marital estate. Brozek v. Brozek, 292 Neb. 681, 874 N.W.2d 17 (2016). The exceptions to this rule are when a spouse acquires property by gift or inheritance. Id. Where one party to a dissolution claims a particular piece of property to be nonmarital, the burden of proof lies with that party. Id. (a) $35,000 Debt Steven claims that the trial court should have included a debt for unpaid bills in the amount of $35,000 as a marital debt. In the joint property statement, he cites the cost of feed, utilities, and attorney’s fees as the sources of this debt. Steven argues that these expenses arose as part of normal living and operating expenses and as such, should be classified as marital. Yet, on cross-examination, Steven was unable to give any further explanation for exactly which bills have not been paid and how much was still owing on each. He admitted that any bills for legal work done on behalf of Rachelle had been paid long before and that she was not a party to either the DEQ or Clason Living Trust lawsuits. Furthermore, Steven includes attorney’s fees for each lawsuit as separate items listed in the property statement. He testified at trial that those are just projected amounts in order to settle those lawsuits, but we are not convinced that those attorney’s fees are distinct from what Steven claims to be part of the $35,000. Rachelle testified that as of the time of separation, she was not aware of any unpaid bills nor was she aware of the DEQ lawsuit. Beyond Steven’s assertions that this $35,000 marital debt exists, we find nothing in the record to support the existence of these unpaid bills nor the amount of debt claimed. As a result, we find the trial court did not abuse its discretion in disregarding this as a marital debt. (b) Premarital Credit Card Debt Steven argues that since neither party included his premarital credit card debt on their joint property statement, the trial court erred in assigning such debt to him. He claims that the court should not have included that debt against either party. However, testimony elicited at trial by both Steven and Rachelle indicates that Steven did in fact have premarital credit card debt. By his own admission, he was operating off of credit cards in 2006 out of necessity in order to keep his farming and cattle operations running. Steven admitted that after filing for bankruptcy, approximately $20,000 of credit card debt was paid off using marital funds. The trial court found this testimony to be credible and issued its order assigning this debt against Steven. We will give weight to the trial court’s finding of fact in this regard. We therefore find there was no abuse of discretion in its determination that Steven did have $20,000 of premarital credit card debt that was paid off using marital funds. (c) Real Estate Taxes Steven assigns that the trial court erred in classifying the 2013 and prorated 2014 real estate taxes as a nonmarital debt. He argues that such expenses followed naturally from his farming operation, which produced income benefiting both him and Rachelle. As such, he claims the debt should be classified as marital and equitably divided between the parties. We agree. In Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000), the Nebraska Supreme Court held that “[i]ncome tax liability incurred during the marriage is one of the accepted costs of producing marital income, and thus, we hold that income tax liability should generally be treated -6- as a marital debt.” The Court ruled that income taxes incurred during marriage are an accepted, and in fact necessary, expense in the production of income. Id. Any income generated from employment during marriage is generally considered a marital asset. Brozek v. Brozek, supra. We likewise find that real estate taxes assessed on farmland used for income production during the marriage are analogous to income taxes. Such taxes are a necessary expense for the ownership and use of that land in order to produce marital income, and that income benefits both spouses. Here, the trial court classified the real estate taxes for 2013 and the first five months of 2014 as Steven’s nonmarital debt on the basis that the real estate itself was a premarital asset, which was subsequently awarded to him as such. However, Steven and Rachelle were married and living together for the entirety of that time period. Both parties testified to working on the farm and they both benefited from the income generated from the ownership and use of the land. While we recognize that the taxes arose from premarital land, the taxes themselves arose during the course of the marriage as a result of Steven and Rachelle’s ownership and use of the land to produce income. To assign such liability to Steven alone, when Rachelle enjoyed the benefits of the income produced on that land, would be patently unjust. We find that the trial court abused its discretion in failing to equitably divide the 2013 and the prorated 2014 real estate taxes between the parties. Accordingly, we reverse, and remand to the trial court to equitably divide and assign the real estate tax liabilities. (d) Appellant’s Premarital Assets Steven alleges that the trial court erred in not crediting him for substantial premarital assets that were subsequently sold, consumed, or disposed of during the marriage. Specifically, he points to a number of household items such as living room furniture, computer and printer, washer and dryer, refrigerator, TV and stereo, and a bedroom set. He also includes various pieces of equipment, the livestock and feed he owned at the time of the marriage, and the crops that were growing at that time. Steven testified that many of the household items were outdated and no longer usable; therefore, they were disposed of. In order to receive credit for premarital property, the spouse claiming the credit must be able to trace its value. See Brozek v. Brozek, supra. By Steven’s own admission, the household items no longer had value at the time at which they were disposed. As a result, he was not entitled to any credit for them. As to the equipment, Steven testified that he sold most of it for a nominal value, but he did not trace where those proceeds went. As stated in Brozek v. Brozek, supra, to trace the value of an item of premarital machinery that has been traded in during marriage, we would need evidence of the ratio of marital-to-nonmarital funds the spouse used to acquire the new asset. We do not have any such evidence in this case. The cattle have also been sold, but again, Steven did not trace where those proceeds went. He testified that the growing crops would have gone into additional cattle or been sold, but again, there was no testimony tracing those proceeds. As the spouse claiming credit for nonmarital property that was disposed of during the marriage, Steven had the burden of tracing the proceeds and he failed to meet his burden. The trial court did not abuse its discretion in failing to credit him for this premarital property. -7- (e) Crop Seed Expense The trial court classified the $25,000 crop seed expense as a marital asset and assigned it to Steven. He now claims that the crop seed should have been classified as a nonmarital asset on the basis that it was purchased after the time of separation. Steven testified that as of the date that Rachelle left, he had not yet planted anything that year. However, he admitted that he had already purchased seed and had paid for some of the crop chemical application. The trial court included this expense as a marital asset because even though Steven may not have planted any crops before he and Rachelle separated, he had already purchased the seed, which would have used marital funds. Steven has the burden to show that these expenses were not paid for with marital funds, and we do not find sufficient evidence in the record to meet this burden. We therefore find no abuse of discretion in the determination that the crop seed expense was a marital asset and could properly be assigned to Steven. (f) Plain Error Additionally, we find that there is another error concerning the trial court’s calculation and division of the marital estate. The trial court calculated Steven’s premarital debts that were paid using marital funds and included that amount in its calculation of total marital property assigned to him. It then subtracted the amount of marital debt assigned to Steven from his total marital property to determine his net total share of the marital estate. The trial court then used the difference between Steven’s net total share and Rachelle’s net total share to determine the amount of the equalization payment awarded to Rachelle. However, in calculating the decrease in premarital debt assigned to Steven, the trial court appears to have incorrectly added the values. The trial court lists each of Steven’s premarital debts that had been paid with marital funds: $229,000 real property mortgage debt, of which $49,000 had been paid during the marriage; $100,000 lien on cows which according to Rachelle had been completely paid during the marriage; $120,000 liens on farm machinery, of which $69,875 had been paid during the marriage; $13,047 real estate taxes; $20,500 debt on 2004 pickup; and $20,000 credit card debt. Adding these amounts together, the trial court found that $182,422 of Steven’s premarital debts had been paid using marital funds. That number appears to be in error. We find the sum of these debts to be $272,422. We cannot find evidence in the record to support the trial court’s figure. This error affects Steven’s net total share of the marital estate, which in turn affects the amount of the equalization payment awarded to Rachelle. Steven makes no specific assignment of error regarding the trial court’s calculations of the decrease in his premarital debt and Rachelle does not challenge the calculations by cross-appeal. Nonetheless, the calculations are clearly wrong and we find that such is plain error. Thus, upon remand, the trial court should recalculate the marital estate and the equalization payment, if any. 3. DENIAL OF MOTION FOR NEW TRIAL Steven assigns that the trial court erred in denying his motion for a new trial. However, he does not state the grounds upon which he claims this was in error. His brief contains no argument whatsoever pertaining to this assignment of error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error in order to be -8- considered by an appellate court. Olson v. Olson, 13 Neb. App. 365, 693 N.W.2d 572 (2005). We therefore do not address this assigned error. VI. CONCLUSION Upon our de novo review of the record, we find that the trial court erred in calculating the marital estate, specifically in classifying the real estate taxes as a nonmarital debt. We also find the trial court committed plain error in miscalculating the amount of Steven’s premarital debts that were paid using marital funds. As a result of these errors, we remand the matter to the trial court to recalculate the marital assets and debts, redistribute them between the parties, and recalculate the equalization payment, if any. We affirm the remainder of the trial court’s decision. AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS. -9-	{ "pile_set_name": "FreeLaw" }
Order Michigan Supreme Court Lansing, Michigan December 10, 2014 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh 150099 & (20) Stephen J. Markman Mary Beth Kelly Brian K. Zahra SELECT PRODUCTS LIMITED, Bridget M. McCormack Plaintiff-Appellee, David F. Viviano, Justices SC: 150099 v COA: 320503 Kalamazoo CC: 2012-000486-CB RANDY W. LINN and LINN PRODUCTS, INC., Defendants-Appellants. ________________________________________/ On order of the Chief Justice, the stipulation to dismiss the application for leave to appeal is GRANTED. The dismissal is with prejudice and without fees or costs to either party. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. December 10, 2014	{ "pile_set_name": "FreeLaw" }
Cite as 2016 Ark. App. 294 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-16-81 OPINION DELIVERED JUNE 1, 2016 HOPE D. GREENHAW APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT V. [NO. JV-2014-35-A] HONORABLE DEANNA “SUZIE” EVANS, ARKANSAS DEPARTMENT OF JUDGE HUMAN SERVICES and MINOR CHILD AFFIRMED; MOTION TO WITHDRAW APPELLEES GRANTED ROBERT J. GLADWIN, Chief Judge In this no-merit appeal, the Boone County Circuit Court terminated appellant Hope Greenhaw’s parental rights to her daughter, F.S., on November 1, 2015. Appellant filed a notice of appeal on November 20, 2015. Counsel for appellant filed a motion to withdraw as counsel on appeal and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i) (2015), asserting that, other than the termination order itself, which is fully addressed in the brief, there were no adverse rulings to appellant and explaining why there are no nonfrivolous arguments to support an appeal. After being served by certified mail with the motion to withdraw and a copy of the no-merit brief, appellant filed pro se points for reversal, and the Arkansas Department of Human Services (DHS) and the attorney ad litem Cite as 2016 Ark. App. 294 filed a joint responsive brief. We affirm the order terminating appellant’s parental rights and grant counsel’s motion to withdraw. I. Law In Linker-Flores, the Arkansas Supreme Court described the procedure for withdrawing as counsel from a termination-of-parental-rights appeal: [A]ppointed counsel for an indigent parent on a first appeal from an order terminating parental rights may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent party must be provided with a copy of the brief and notified of her right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal. Linker-Flores, 359 Ark. at 141, 194 S.W.3d at 747–48. Subsequently the supreme court elaborated on the appellate court’s role in reviewing a petition to withdraw in a termination-of-parental-rights appeal, holding that when the trial court has taken the prior record into consideration in its decision, a “conscientious review of the record” requires the appellate court to review all pleadings and testimony in the case on the question of the sufficiency of the evidence supporting the decision to terminate and that only adverse rulings arising at the termination hearing need be addressed in the no-merit appeal from the prior orders in the case. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543. Grounds for termination of parental rights must be proven by clear and convincing evidence, which is that degree of proof that will produce 2 Cite as 2016 Ark. App. 294 in the finder of fact a firm conviction of the allegation sought to be established. Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526. The appellate inquiry is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). II. Facts F.S., born December 23, 2004, was taken into protective custody by DHS on April 1, 2014, after F.S. and appellant had appeared in court for a family-in-need-of-services (FINS) hearing due to F.S.’s numerous school absences. At that hearing, appellant stated that she had been diagnosed with a mental illness and anxiety issues and had not been taking any of her medications. She said that her “weak mental state” was the reason F.S. had been absent from school. That afternoon, DHS workers visited appellant’s home and found it to be in poor condition with toys, clothes, and food scattered around the living room, and a dish towel covered with green feces was discovered in plain sight. Appellant would not submit to a drug screen and stated, “I only have a little bit to live and I am trying to stay off my medication so I can be the best mother to my children.” Appellant was arrested and charged with endangering the welfare of a minor, first degree, based on police finding 1 appellant’s youngest child in the street, unsupervised. 1 Appellant’s younger child, E.M., born March 16, 2010, was found by police officers in the street on April 1, 2014. An officer who responded to a concerned neighbor’s call told caseworkers that E.M. had run in front of his police car and he was forced to slam on his brakes to avoid hitting her. After he had returned the child home, he found her two blocks away from home shortly thereafter. E.M. is not the subject of this appeal. 3 Cite as 2016 Ark. App. 294 A petition for emergency custody and dependency-neglect was filed on April 4, 2014, and the circuit court signed an ex parte order granting emergency custody to DHS that same day. A probable-cause order was filed on April 29, 2014, following a hearing held on April 7, 2014. Appellant was ordered to submit to random drug screens and comply with the case plan that DHS was to develop. An adjudication order finding F.S. dependent-neglected was filed on June 12, 2014. The goal of the case was reunification, and appellant was ordered to undergo a psychological evaluation and to follow the case plan. A review order was filed on July 3, 2014, and the circuit court found that the goal of the case should continue to be reunification; that DHS had made reasonable efforts to provide services to achieve reunification of the family; and that appellant had partially complied with the case plan and court orders. The circuit court found that appellant had behaved inappropriately at some visitations, causing visitation to end early. She also did not provide proof of a psychological evaluation or counseling. At the review hearing held in October 2014, the circuit court found that appellant had partially complied because she had attended weekly visitations, but some had ended early due to appellant’s inappropriate behavior. She had submitted to her psychological evaluation and attended a health-and-safety class. But, appellant had not completed parenting classes, and DHS had been unable to assess her home because there had been no answer at her door. She remained unemployed and had been living with her significant other, Mr. Haynes. She was ordered to comply with the case plan and court orders; cooperate with DHS; notify DHS within forty-eight hours of any change in her address or telephone number; attend 4 Cite as 2016 Ark. App. 294 counseling; address the issues identified in her psychological evaluation, particularly her need for medication to address psychiatric issues; notify her significant other, Mr. Haynes, that he would need to participate in this case if they were to continue to live together; and allow DHS access to her home. The review order filed on December 19, 2014, continued the goal of the case to be reunification. Appellant minimally complied with the case plan and court orders. Some visitation ended early due to her inappropriate behavior. It was recommended at her intake for counseling that she needed day treatment, but she had declined. She asked the circuit court to order that she not have to attend, and she was told that she would need to file a motion if she wanted a second psychological evaluation. She did not complete parenting classes, and she would not allow DHS access to her home. She was living with Mr. Haynes and tested positive for methamphetamine on November 5, 2014, and again at the hearing held December 9, 2014. She refused two drugs screens. Appellant was ordered to comply as set forth above, and she was also ordered to submit to random drug screens and was admonished that she had 120 days to regain custody of her daughter. A permanency-planning hearing was held on March 24, 2015, and the circuit court found that it was in F.S.’s best interest to remain in DHS custody. 2 The goal of the case was changed to adoption, and DHS was authorized to file a petition for termination of parental rights. Appellant had minimally complied with the case plan; was living with friends; denied DHS access to her home; remained unemployed; continued to decline 2 The permanency-planning order was filed on July 7, 2015. 5 Cite as 2016 Ark. App. 294 counseling; continued to test positive for methamphetamine; continued to deny that there was causation for the removal of her child; missed over half of the visits she could have had with F.S.; failed to follow recommendations from the psychological evaluation; and had been arrested since the last court date. III. Termination of Parental Rights Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark. Dep’t of Human Servs., 2016 Ark. App. 227. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(B), (b)(3)(A) (Repl. 2015); Houseman, supra. Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep’t of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205. A trial court is only required to consider potential harm to a child’s health and safety that might come from continued contact with the parents; there is no requirement to find that actual harm would result or identify the potential harm. Hamman v. Ark. Dep’t of Human Servs., 2014 Ark. App. 295, at 11, 435 S.W.3d 495, 502. The potential-harm analysis is to be conducted in broad terms. Id. A petition for termination of parental rights was filed April 7, 2015, and a second petition was filed on July 14, 2015, both based on the grounds set forth under Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a)—the child had been adjudicated to be 6 Cite as 2016 Ark. App. 294 dependent-neglected and had continued to be out of the parent’s custody for twelve months and, despite a meaningful effort by DHS to rehabilitate the parent and correct the conditions that caused the removal, those conditions had not been remedied by the parent; section 9- 27-341(b)(3)(B)(ii)(a)—the child had lived outside the home of the parent for twelve months, and the parent had willfully failed to provide significant material support in accordance with her means or to maintain meaningful contact with the child; and section 9-27-341(b)(3)(B)(vii)(a)—other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the child in the custody of the parent was contrary to the child’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevented the placement of the child in the custody of the parent.3 Following a hearing on August 25, 2015, an order terminating appellant’s parental rights was filed on November 1, 2015. The circuit court granted the petition to terminate on the statutory ground set forth under section 9-27-341(b)(3)(B)(i)(a), specifically finding that appellant did not demonstrate even minimal compliance with the case plan. Appellant did not complete the ordered parenting classes; had done no counseling; did not follow the psychological evaluation recommendation; had been in a home for only two weeks previous to the termination hearing; remained unemployed; had pending criminal charges; and had 3 On July 2, 2015, F.S.’s father filed a relinquishment of parental rights and waiver consenting to the termination of his parental rights. 7 Cite as 2016 Ark. App. 294 attended only half of the visitations. The circuit court also found by clear and convincing evidence that it was in F.S.’s best interest to terminate parental rights, considering that F.S. would likely be adopted and the potential harm to her if she were returned to her parent’s custody. Specifically, the circuit court found that F.S. would be subjected to continued instability in the home and that the parent continued to have the inability to provide and care for her. Further, adoption specialist Haley Casey testified that F.S. was highly adoptable and would very quickly find a home. Counsel contends that this appeal is without merit, concluding that clear and convincing evidence supports the circuit court’s decision to terminate. Proof of only one statutory ground is sufficient to terminate parental rights, Gossett, supra, and the proof regarding appellant’s inability to correct the conditions that caused removal was substantial. The statutory requirements were met, and the evidence established that F.S., who had been out of appellant’s custody for sixteen months at the time of the termination hearing, could not be returned to appellant within a time period commensurate with her developmental needs, if ever. See Ark. Code Ann. § 9-27-341(a)(3) (the intent of the legislature is to provide permanency in a child’s life when a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective). Accordingly, we hold that the circuit court’s order terminating parental rights was not clearly erroneous. 8 Cite as 2016 Ark. App. 294 IV. Pro Se Points Appellant filed pro se points for reversal claiming that her mental health had drastically improved since the psychological evaluation she had undergone pursuant to the case plan. She further offers that she had obtained a steady job at NWA Electronics, secured a home on a twenty-acre rural cattle farm, was engaged to be married, and had formed a bond with her fiancés two minor children. She also claims that she is capable of taking the necessary steps within her case plan to comply with the psychological evaluation’s original assessment. She states that when her insurance is approved, she will follow through with the next steps of her case plan. She contends that her newly established faith-based principles and following the case plan will give her the ability to parent her daughter. DHS and the attorney ad litem filed a joint response, and they contend that appellant is challenging the sufficiency of the evidence. We agree and hold that we cannot reweigh the evidence. Newman v. Ark. Dep’t of Human Servs., 2016 Ark. App. 207, ___ S.W.3d ___. Further, credibility determinations are left to the trial court. Id. V. Conclusion In dependency-neglect cases, if, after studying the record and researching the law, appellant’s counsel determines that appellant has no meritorious basis for appeal, then counsel may file a no-merit petition and move to withdraw. The petition must include an argument section listing all rulings adverse to the appellant made by the circuit court on all objections, motions, and requests made by the party at the hearing from which the appeal arose and explaining why each adverse ruling is not a meritorious ground for reversal. The 9 Cite as 2016 Ark. App. 294 petition must also include an abstract and addendum containing all rulings adverse to the appellant made at the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6- 9(i). After carefully examining the record and the brief presented to us, we conclude that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases and that the appeal is wholly without merit. Accordingly, we affirm the order terminating appellant’s parental rights in F.S., and counsel’s motion to withdraw is granted. Affirmed; motion to withdraw granted. KINARD and GRUBER, JJ., agree. Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant. Jerald A. Sharum, County Legal Operations, for appellee. Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child. 10	{ "pile_set_name": "FreeLaw" }
J-S27027-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAISHA DUGGINS : : Appellant : No. 3241 EDA 2019 Appeal from the Judgment of Sentence Entered June 29, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002548-2016 BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.* MEMORANDUM BY McCAFFERY, J.: FILED JULY 15, 2020 Kaisha Duggins (Appellant) appeals nunc pro tunc from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following her open guilty pleas to voluntary manslaughter—unreasonable belief killing justifiable,1 conspiracy to commit voluntary manslaughter, and possessing an instrument of crime (PIC).2 Appellant argues the court abused its discretion ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2503(b). 2 18 Pa.C.S. §§ 903(a), 907. J-S27027-20 when imposing her sentence by failing to consider mitigating circumstances.3 We affirm. Appellant and two co-defendants, Aleathea Gillard and Shareena Joachim,4 were charged with attacking Robert Barnes (Decedent), who was homeless. The charges proceeded to a joint plea hearing on January 29, 2018, where the Commonwealth presented the following factual summary. See N.T. Guilty Plea H’rg, 1/29/18, at 53-54. On April 7, 2015, around 6:30 p.m., Decedent was standing outside a gas station located at 5335 North 5th Street in Philadelphia. A 10-year old boy rode his bike near Decedent and, for reasons unknown, went home and told his mother, Gillard, that Decedent hit the boy and called him a racial slur. Approximately 10 minutes later, Gillard and her cohorts, Appellant and Joachim, arrived at the gas station, exited their van and immediately attacked Decedent. Three juveniles — two of whom were Gillard’s children — also joined the attack. Id. at 53, 55. Decedent “was knocked to the ground and punched, kicked and beaten about the head and body with various objects.” Id. at 53. Appellant struck Decedent with a ____________________________________________ 3 Upon the Commonwealth’s request, this panel granted an extension of time for it to file a brief. The Commonwealth then filed a second extension of time, which this panel denied. 4 During the recitation of the facts at the guilty plea hearing, the Commonwealth referred to Joachim as Appellant’s friend. N.T. Guilty Plea H’rg, 1/29/18, at 53. However, Appellant’s sentencing memorandum stated Appellant and Joachim are sisters. See Appellant’s Sentencing Memorandum, 5/25/18, at 7. -2- J-S27027-20 hammer, while Gillard beat him with a wooden chair leg. Joachim also attempted to blind Decedent by spraying mace into his eyes, but instead sprayed one of the juveniles involved. Recovered video surveillance showed the brutal attack in its entirety. The video confirmed that the unarmed Decedent did not have, prior to the attack, any verbal or physical contact with Gillard’s son, Appellant, her two co-defendants, or the juveniles involved. The Commonwealth’s evidence showed the following. See N.T., Guilty Plea H’rg, at 54-55. Decedent was rushed to the hospital in critical condition where he underwent brain surgery. Post-surgery, Decedent was transferred to a nursing home on April 30, 2015, where his condition deteriorated and he died on November 25, 2015. The Montgomery County Medical Examiner’s office performed an autopsy, which “revealed brain hemorrhages, contusions to both eyes, [a] fractured left orbital bone, a fractured nasal bone[,] and blunt impact injury to the torso.” Id. at 55. The Medical Examiner’s officer determined “the cause of death [was] complications following blunt impact injury to the head” and ruled the manner of death was homicide. Id. On January 29, 2018, Appellant and both co-defendants entered open guilty pleas to voluntary manslaughter, conspiracy, and PIC.5 N.T., Guilty Plea ____________________________________________ 5 Gillard and Joachim each took direct appeals to this Court, challenging the discretionary aspects of their sentences. Commonwealth v. Gillard, 3390 EDA 2018 (unpub. memo.) (Pa. Super. Dec. 18, 2019); Commonwealth v. Joachim, 3400 EDA 2018 (unpub. memo.) (Pa. Super. Dec. 18, 2019). This -3- J-S27027-20 H’rg, at 6-7, 56-58; see Written Guilty Plea Colloquy, 1/29/18. Each defendant signed statements admitting their participation in the attack. Appellant specifically admitted to striking Decedent in his head with a hammer. Id. at 55. On June 29, 2018, the trial court sentenced Appellant to the following: two consecutive terms of 10 to 20 years’ incarceration for voluntary manslaughter and conspiracy; and a consecutive term of 2 1/2 years to 5 years’ incarceration for PIC. Appellant’s aggregate term was 22 1/2 to 45 years’ incarceration. The court reviewed the sentencing memorandum, summarized the information therein, and acknowledged an upward deviation from the Sentencing Guidelines.6 N.T. Sentencing H’rg, 6/29/18, at 9, 111- 13. Appellant timely filed a post-sentence motion, which the court denied on October 24, 2018. Appellant did not initially file a notice of appeal, but filed a timely pro se Post Conviction Relief Act7 (PCRA) petition on December 28, 2018. The trial ____________________________________________ Court affirmed both co-defendants’ judgments of sentences on December 18, 2019. 6 The standard range sentence for voluntary manslaughter with a deadly weapon enhancement was 54 to 72 months’ incarceration, plus or minus 12 months. For conspiracy to commit voluntary manslaughter, the standard range with a deadly weapon enhancement was 40 to 54 months’ incarceration, plus or minus 12 months. For PIC, the standard range sentence was restorative sanctions, plus or minus 3 months’ incarceration. See N.T., Sentencing H’rg, at 10. 7 42 Pa.C.S. §§ 9541-9546. -4- J-S27027-20 court appointed present counsel for Appellant. On August 8, 2018, Appellant filed an amended PCRA petition. Appellant alleged ineffective assistance in trial counsel’s failure to perfect an appeal when she requested counsel to do so, and abandoning her without withdrawing from representation. On November 8, 2019, the PCRA court reinstated Appellant’s appellate rights nunc pro tunc. That same day, Appellant filed a notice of appeal, followed by a Pa.R.A.P. 1925(b) statement on November 20, 2019, which the trial court did not order. The trial court has advised this Court by letter, dated February 12, 2020, that the trial judge, the Honorable Sandy Byrd, is no longer sitting as a judge in Philadelphia County and no trial court opinion has been filed. Letter from Common Pleas Trial Division, 2/12/20. Appellant presents one issue for our review: Did the trial court abuse its discretion in sentencing Appellant to 22 1/2 to 45 years of state incarceration when Appellant accepted responsibility for her actions and showed remorse, when Appellant is the mother of a minor child, when Appellant suffers from mental health disorders and was intoxicated at the time of the incident, and when Appellant had no prior record score resulting in a sentence that was a substantial departure from the sentencing guidelines? Appellant’s Brief at 4. Appellant avers the imposition of her sentence constitutes an abuse of discretion by the trial court “and goes well beyond the purpose of the penal system — protection of society, general deterrence, individual deterrence, rehabilitation, and retribution.” Id. at 11. Appellant contends the trial court did not consider a variety of factors when it fashioned her sentence. Appellant stresses she accepted responsibility and entered into -5- J-S27027-20 a guilty plea, was remorseful and apologetic about her actions, was untreated for bipolar disorder, was under the influence of “various drugs” when the attack occurred,8 has a young child for whom she cares, and did not initiate the attack. Id. at 7. Appellant also contends that she had no prior record and her sentence deviation from co-defendant Joachim — who received an aggregate sentence of 12 1/2 to 25 years’ incarceration — “was not adequately justified,” thus, requiring she be resentenced. Id. at 9; see N.T., Sentencing H’rg, at 120. Appellant challenges the discretionary aspects of her sentence. Such a claim is not appealable as of right, but “must be considered a petition for permission to appeal.” Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation omitted). Before we reach the merits of a discretionary sentencing issue, this Court must determine: (1) whether the appeal is timely; (2) whether Appellant preserved [the] issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013) ____________________________________________ 8 Although Appellant’s brief does not elaborate on the various drugs used, her Sentencing Memorandum explained that in her pre-sentence interview, Appellant stated she had “taken 4 Xanax and smoked 2 blunts” on the date of the incident and “took shots of alcohol to swallow down the pills.” See Appellant’s Sentencing Memorandum, 5/28/15, at 8. -6- J-S27027-20 (citation omitted). Appellant complied with the procedural requirements for this appeal by filing a timely post-sentence motion and a nunc pro tunc notice of appeal. In her appellate brief, Appellant includes a statement of reasons relied upon for appeal pursuant to Pa.R.A.P. 2119(f). See Edwards, 71 A.3d at 329-30; Appellant’s Brief at 8-12. This statement claims she had no prior record, accepted responsibility for her crime, has a young child, and had a “difficult social background and mental health and substance issues,” and that the sentence imposed “goes well beyond the purpose of the penal system.” Appellant’s Brief at 9, 11. In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), this Court found that “an excessive sentence claim, in conjunction with an assertion that the court did not consider mitigating factors, raised a substantial question.” See Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013). Accordingly, we conclude Appellant has raised a substantial question for our review, and now turn our attention to the specific issued raised on appeal. We review the trial court’s determination for an abuse of discretion. [T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. . . . [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. . . . Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010) (citation -7- J-S27027-20 omitted). In reviewing the sentence, an appellate court shall consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the opportunity of the sentencing court to observe the defendant, including any presentence investigation; (3) the findings upon which the sentence was based; and (4) the guidelines promulgated by the commission. 42 Pa.C.S.A. § 9781(d)(1)–(4). A sentence of total confinement shall be consistent with “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Furthermore, When imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but it [is] not bound by the Sentencing Guidelines. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007) (“It is well established that the Sentencing Guidelines are purely advisory in nature.”). The court may deviate from the recommended guidelines; they are “merely one factor among many that the court must consider in imposing a sentence.” A court may depart from the guidelines “if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community.” When a court chooses to depart from the guidelines[,] however, it must “demonstrate on the record, as a proper starting point, [its] awareness of the sentencing guidelines.” Further, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S.[ ] §9721(b). The requirement that the court provide a contemporaneous -8- J-S27027-20 written statement is satisfied “when the judge states his reasons for the sentence on the record and in the defendant's presence.” Commonwealth v. Durazo, 210 A.3d 316, 320–21 (Pa. Super. 2019) (some citations omitted). Where the sentencing court had the benefit of a presentence investigation report (“PSI”), we can assume the sentencing court “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. Moury, 992 A.2d at 171 (citations omitted). “When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant’s prior criminal record, his age, personal characteristics and his potential for rehabilitation.” Id. (citations omitted). We reiterate the trial court reviewed Appellant’s pre-sentencing memorandum. N.T., Sentencing H’rg, at 9. While no opinion was filed in this matter, the trial court stated its reasons with specificity in open court and on the record for imposing its sentence: [Appellant,] you had the benefit of a mitigation expert. I have considered the various documents that were submitted to me on your behalf and they are, of course, mitigating factors. All of which are laid out in either the presentence investigation, the mental health evaluation, the sentencing memorandum or the presentation presented here in this court. They include the fact that you accepted responsibility by pleading guilty, you are a mother of children and you have an underlying psychiatric disorder. -9- J-S27027-20 On the other hand, there are various aggravating factors which clearly outweigh the mitigating circumstances. They include the following: [t]his was not a typical voluntary manslaughter case. That is, it is compellingly different from other manslaughter cases. First, you had no family involvement in this case unlike the co-defendant whose son falsely accused the victim of a crime. Second, you were a leading actor in the killing, arming yourself with a hammer. You were, from my viewing of the video, the first to strike [Decedent]; an unarmed, unsuspecting, vulnerable person. Once [Decedent] was knocked to the ground, others engaged in a prolonged beating which resulted in pain and suffering over the period of April 2015 through November 2015. You acted in concert with children. Rather than removing them from this violent confrontation, you did nothing to prevent the juveniles from engaging in actions that resulted in two of them carrying a lifetime adjudication for third degree murder. Now I'm mindful of the fact that you have a prior record score of zero, but I know, given the manner in which our guidelines are computed, that it does not take into account your prior conviction for assault on facts not unlike the present case, all be it no one died, obviously, in that case. In light of the foregone, the [c]ourt finds that an upward departure from the guidelines is required. N.T., Sentencing H’rg, at 117-19. In this case, the trial court fully complied with Section 9721(b). The court noted the standard range sentence with a deadly weapon enhancement was 54 to 72 months in prison for voluntary manslaughter and 40 to 54 months in prison for conspiracy to commit voluntary manslaughter. N.T., Sentencing H’rg, at 10. The court, as set forth above, stated its reasons for imposing a sentence of ten years’ imprisonment. The trial court acknowledged Appellant’s PSI and it thoroughly considered Appellant’s nature and history. - 10 - J-S27027-20 It also had an opportunity to observe Appellant and weigh the information in the PSI concerning her character as well as her mitigation report. The court explained the aggravating factors that contributed to her sentence, by elaborating on her being the initial attacker and her use of a hammer on an “unarmed, unsuspecting, vulnerable person.” Id.at 107. The trial court adequately explained its departure from the standard range of the sentencing guidelines. See 42 Pa.C.S.A. § 9781(d)(1)–(4); Durazo, 210 A.3d at 320– 21; Moury, 992 A.2d at 171. Finally, taking into consideration the totality of the circumstances of this case, Appellant’s admitted participation in a brutal, sustained, and unprovoked beating of an unarmed homeless man, this Court does not find the imposed sentence “shocks the conscience.” Accordingly, Appellant is not entitled to relief. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2020 - 11 -	{ "pile_set_name": "FreeLaw" }
925 F.2d 1457Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Earnest Jerome RUSSELL, Petitioner-Appellant,v.Larry W. HUFFMAN, Warden, Mary Sue Terry, Virginia AttorneyGeneral, Respondents-Appellees. No. 90-6849. United States Court of Appeals, Fourth Circuit. Submitted Sept. 28, 1990.Decided Feb. 19, 1991. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (CA-89-1624-AM) Earnest Jerome Russell, appellant pro se. E.D.Va. VACATED AND REMANDED. Before MURNAGHAN, WILKINSON and NIEMEYER, Circuit Judges. PER CURIAM: 1 Earnest Jerome Russell appeals from the district court's order dismissing without prejudice his habeas corpus petition filed pursuant to 28 U.S.C. Sec. 2254 for failing to comply with a court order. We vacate and remand. 2 The district court ordered Russell to submit facts demonstrating that he had exhausted state court remedies. Russell answered by submitting a statement that he had presented his claims to the Virginia Supreme Court and attaching a copy of that court's order dismissing his habeas corpus petition. The Virginia Supreme Court's order addresses five claims, the number of claims submitted to the district court. Despite this attempt to prove exhaustion, the district court dismissed the petition for failure to comply with the court's order. In its dismissal, it stated that Russell had not submitted all of his claims to the Supreme Court of Virginia. It did not elaborate further. 3 Litigants coming to this court pro se are generally afforded a margin of liberality. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). In Carter v. Hutto, 781 F.2d 1028, 1032-33 (4th Cir.1986), this Court held that the district court abused its discretion in dismissing the complaint of a pro se litigant who had substantially complied with a pretrial order without first informing the litigant of the deficiency of his response and affording him the opportunity to cure the defect. In the present case, Russell substantially complied with the district court's order to prove exhaustion. At the very least, he was entitled to a clarified instruction as to what he needed to do to satisfy the court's request and an opportunity to correct his response accordingly. Therefore, we find the district court abused its discretion in dismissing the petition. 4 Accordingly, we grant a certificate of probable cause to appeal. The decision of the district court is vacated and the case remanded for further proceedings. 5 VACATED AND REMANDED.	{ "pile_set_name": "FreeLaw" }
390 F.Supp. 1335 (1975) In the Matter of AVIEN, INC., Debtor. No. 70 B 1085. United States District Court, E. D. New York. March 10, 1975. 1336 1337 W. Bernard Richland, Corp. Counsel of the City of New York, New York City, for appellant City of New York by Murray Gingold, Samuel J. Warms, and Raymond Herzog, New York City, of counsel. Levin & Weintraub, New York City, for appellee Avien, Inc. by Elias Mann, Martin I. Klein, New York City. OPINION NEAHER, District Judge. This is an appeal by the City of New York ("the City") from a decision of the bankruptcy judge expunging its claim against the debtor for unpaid corporation taxes in the amount of $17,789.32. Decision of the appeal turns upon the correct construction to be placed on the carryforward and carryback loss provisions of the City's General Corporation Tax, Administrative Code of the City of New York, § R46-2.0(8)(f). The pertinent facts are not in dispute. On December 24, 1970, the debtor ("Avien") filed a petition for an arrangement under Chapter XI of the Bankruptcy Act and thereafter was continued in the operation of its business. The City, in June 1973, conducted an audit of Avien's books and records for the period from January 1966 through December 24, 1970, with respect to its tax liability to the City. After completion of the audit, the City filed an amended claim in the Chapter XI proceeding which included an item of $17,789.32 for unpaid general corporation tax allegedly accruing in Avien's fiscal year ending June 30, 1968 (together with interest and penalties of $2,018.50). There is no question that the City's foregoing tax claim is based upon Avien's City General Corporation Tax Report for fiscal 1968, which showed a net income of $286,969.82 before net operating loss. Despite that alleged "income", Avien paid no federal taxes in that year because its income was more than offset by the following carryforward losses reported on its federal tax return: Fiscal Year Ending Taxable Income (Loss) June 30, 1963 ($762,423.73) June 27, 1965 ($156,856.34) July 3, 1966 ($993,529.48) June 30, 1968 $282,598.52[1] Avien also reported losses on its federal returns for fiscal 1969 and 1970 of $165,427.60 and $337,177.85 respectively. In urging the validity of its claim despite Avien's losses, the City contends, in effect, that the carryforward and carryback loss provisions of the City's Administrative Code require a taxpayer to use as an offset against income only the identical loss he has used as an offset on the federal return. The City further contends that if other provisions of the City's tax law prohibit the use of that loss for City tax purposes, the taxpayer may not substitute as a deduction a loss from a different year. 1338 The bankruptcy judge concluded that, in the absence of express legislative history to the contrary, the implicit legislative intent in adopting a carryforward and carryback loss provision, i. e., to allow an averaging of income over a number of years, would best be effectuated by not binding a taxpayer to the loss used on his federal return if that loss did not qualify for City tax purposes. This court agrees. I. The City's tax on corporate net income is imposed under Title R of Chapter 46 of the New York City Administrative Code § 2.0(8), effective January 1, 1966, which provides in pertinent part: "`Entire net income' means net income from all sources which shall be the same as the taxpayer's federal taxable income . . .." Subdivision (f) of § 2.0(8) provides in part: "A net operating loss deduction shall be allowed which shall be the same as the net operating loss deduction allowed under section one hundred seventy-two of the internal revenue code or which would have been allowed if the taxpayer had not made an election under subchapter s of chapter one of the internal revenue code, except that . . . (2) such deductions shall not include any net operating loss sustained during any taxable year in which the taxpayer was not subject to the tax imposed by this part, and (3) such deduction shall not exceed the deduction for the taxable year allowable under section one hundred seventy-two of the internal revenue code . .." The City's position is that a city taxpayer, pursuant to § 2.0(8), must report taxable income for City tax purposes which is "the same as" the taxable income reported for federal tax purposes. The latter is determined in accordance with § 63(a) of the Internal Revenue Code of 1954 ("the Code"), which provides in part: "`[T]axable income' means gross income, minus the deductions allowed by this chapter . . .." One of the allowed deductions is that provided for in § 172 of the Code.[2] The City, therefore, would have the court conclude that the same carryover loss used as an offset for federal tax purposes must be used as an offset for City tax purposes, so that taxable income for City tax purposes will be "the same as" taxable income for federal tax purposes in both final amount and identity of component deductions. The City further contends that under § 172 a taxpayer must first apply the 1339 earliest loss as a carryforward before other losses may be used. Applying the foregoing contentions here, the City's position is that in computing Avien's 1968 taxable income for federal tax purposes, the 1963 loss must be applied first and since that loss is sufficient to completely offset 1968 income, no other loss year, i. e., 1965, 1966, 1969 or 1970, need be used. For City tax purposes, however, the 1963 loss is disqualified under § 2.0(8)(f)(2) because the general corporation tax was not effective until January 1, 1966. The City therefore concludes that Avien has taxable income for fiscal 1968 for City tax purposes, with no eligible loss deductions to offset it. Avien concedes that its 1963, 1965 and pre-January 1, 1966, losses are ineligible as carryforwards for City tax purposes. Avien maintains, however, that it should be permitted to offset against 1968 income, for City tax purposes, its post-January 1, 1966 losses as a carryforward, as well as 1969 and 1970 losses as carrybacks. Concededly, the legislature could, if it so desired, deny a City taxpayer the benefit of a carryover or carryback loss deduction unless the loss sought to be used as a deduction from City income was the identical loss used as a deduction from federal income. The question here is whether the legislature so intended. Both sides concede the absence of clarifying legislative history relating to § 2.0(8) of the City tax law. The City argues that the explicit language "the same as" must be construed to mean that a taxpayer's City return is to be identical with his federal return. Otherwise, it argues, there is nothing to prevent a taxpayer from using a different method of depreciation on his City return. The City sees further support for its position in the specific deviation permitted by the City tax law in the case of a subchapter S corporation and the absence of any specific provision permitting substitution of other carryforward and carryback losses when those used in computing federal taxable income are ineligible for City tax purposes. On the broad question of legislative intent, the City points out that the basis of the City tax is conformity with the federal tax. Conformity is desirable, it argues, in that it enables the City to conduct "desk audits," leaving the bulk of the field auditing to the federal government, which is better equipped to conduct large scale audits. Without such conformity in the instant case, for example, the City would be required to undertake extensive audits which would not otherwise be necessary. This will happen, the City argues, because Avien's only possible tax liability for federal tax purposes relates to income earned in fiscal 1968. Since that income is completely offset for federal tax purposes by 1963 losses, the federal government has no reason to, and consequently will not, audit Avien's returns for 1966, 1969 or 1970, the years in which the losses occurred which are now sought to be used to offset Avien's 1968 income for City tax purposes.[3] However convenient conformity may be for administration, in construing legislation the court is bound to give effect to its primary purpose, even if to do so the court must depart from a literal reading of the legislation. Le Drugstore Etats Unis, Inc. v. New York State Board of Pharmacy, 33 N.Y. 2d 298, 352 N.Y.S.2d 188, 307 N.E.2d 249 (1973); Abood v. Hospital Ambulance Service, Inc., 30 N.Y.2d 295, 332 N.Y.S.2d 877, 283 N.E.2d 754 (1972); Hogan v. Culkin, 18 N.Y.2d 330, 274 N. Y.S.2d 881, 221 N.E.2d 546 (1966); Petterson v. Daystrom Corporation, 17 N.Y.2d 32, 268 N.Y.S.2d 1, 215 N.E.2d 329 (1966). Manifestly, the intention of the legislature in providing for carryforward and carryback loss deductions was to permit a City taxpayer to pay tax on an amount which more accurately reflects his true economic gain over a period 1340 of years. Such a provision might, presumably, be a factor in inducing a corporation to relocate or remain in the City. To adopt the City's construction of § 2.0(8) would undermine this legislative intent. This is exemplified by Avien's situation here. Avien's true City income after January 1, 1966 consists of both losses and profits, a situation clearly within the purview of the carryforward and carryback loss provisions of the City tax law. Yet, according to the City, despite post-1966 losses, Avien must, nonetheless, pay City tax on its 1968 income because for Federal tax purposes it used pre-January 1, 1966 losses.[4] Rather, it seems clear the legislature intended that a City taxpayer should be given the same type of benefit allowed federal taxpayers, i. e., an averaging of income over a period of years during which the tax was in effect. The reference in § 2.0(8) to § 172 of the Code is for general guidance and is not so inflexible as to require a non-intended result. The court does agree with the City that the computation of City taxable income requires, at least initially, the use of the figures reported on the federal return. Thus, if a particular method of depreciation is employed in the calculation of federal taxable income, that same method (and consequently the same figure) must be used in computing City taxable income. Similarly, the same loss figures reported on the federal return must be reported on the City return, no variances other than those specifically provided for in R 46-2.0(8)(a)(i) are permitted. The mere fact, however, that the reported figures must be the same does not ipso facto mandate that their application be the same. Section 2.0(8)(f) reads, "A net operating loss deduction shall be allowed which shall be the same as the net operating loss deduction allowed under section one hundred seventy-two . . .." (Emphasis supplied.) If for some reason a taxpayer chose not to apply a reported loss from a qualifying year as a deduction on his federal return there is no reason why he would not be permitted to apply a different loss from another qualifying year as a deduction under § 172. Brandon v. United States, 204 F.Supp. 912 (N.D.Ga.1962); contra, Rev.Ruling 218, 53-2 Cum.Bull. 176. Consequently, Avien's post-January 1, 1966 and 1969 and 1970 losses are losses which are "allowed" under § 172 and consequently may be used as deductions against City income under § 2.0(8)(f).[5] If the legislature had intended the strange result urged by the City, it would have used the phrase "actually taken under section 172" instead of the phrase "allowed under section one hundred seventy-two", which it did use. Furthermore, if in fact § 2.0(8) means that the identical loss used on the federal return must be used on the City return, the language of § 2.0(8)(f)(3), i. e., "such deduction shall not exceed the deduction for the taxable year allowable under section one hundred seventy-two . . .", would be superfluous. If the identical loss must be used, obviously it could not be greater than itself. The City's reliance on the subchapter S exception of § 2.0(8)(f), as supportive of the proposition that the 1341 only intended deviations from reported federal income are those specifically enumerated, is misplaced. Under 26 U. S.C. § 1373, taxable income of a subchapter S corporation is calculated without regard to § 172 deductions. The obvious reason for that is that net income or loss of those corporations is immediately passed through to the stockholders and appears on their individual returns. There are, therefore, no corporate losses to be carried forward or back. The correlative provision of the federal carryforward and carryback loss section, § 172(h), similarly provides that subchapter S losses are to be disregarded for the purpose of that section. If, therefore, § 2.0(8)(f) did not specifically provide for the subchapter S exception, a subchapter S corporation would not be entitled to carryback or carryforward losses on the City return since such losses are specifically not "allowed under section one hundred seventy-two." As indicated above, post-January 1, 1966 losses are allowed under § 172 even if there are sufficient pre-January 1, 1966 losses and there is therefore no need for a specific exception to that effect in § 2.0(8)(f). Nor will the legislature's obvious intention to conform the City tax law to the federal law in order to facilitate the auditing procedure be frustrated by this holding. As presently constituted the City return (line 9, schedule B) asks merely for a dollar figure representing the "New York City net operating loss deduction." The return seeks no information as to the identity of the loss year or years from which this figure is derived. Presumably, if the City auditors want to know how a taxpayer arrived at the reported figure, they will request copies of the taxpayer's federal returns. A brief review of the losses reported on the applicable federal returns will reveal if the taxpayer is entitled to the loss deduction claimed on the City return.[6] Similarly, this holding does not interfere with the legislature's implicit desire that the initial burden of ascertaining the accuracy of the reported losses remain on the federal government. The City's argument that the federal government has no incentive to audit years in which losses, which are not used as carrybacks, are reported strikes the court as disingenuous. Without auditing those years, the federal government does not know whether in fact the taxpayer properly has losses or profits for those years. Thus, to adopt the construction urged by the City would do violence to a clear legislative intent to confer upon City taxpayers the benefit of an income averaging system while accomplishing no useful purpose with respect to the administration of the tax. II. As a secondary argument, the City maintains that the burden of proving its entitlement to deductions for losses incurred in the periods of January 1, 1966 to June 30, 1966 and fiscal 1969 and 1970 is on Avien and that Avien did not satisfy that burden in the bankruptcy court. In that court Avien introduced into evidence copies of its 1969 and 1970 federal tax returns. Additionally, Avien's comptroller testified that a cursory examination of Avien's books and records for fiscal 1966 revealed that $125,000 (with a 10-20% margin of error) of Avien's total loss for that year was incurred after January 1, 1966. The City's position is that in order to sustain its burden of proof, Avien was obliged to produce its books, records and supporting documents relevant to the periods in question. Avien having failed to do so, the City urges that the findings of the bankruptcy judge expunging its claim for general corporation tax should be reversed as clearly erroneous. While the burden of proof with respect to deductions claimed is normally on the taxpayer, Administrative 1342 Code, City of New York § R46-70.0(5); People ex rel. Kohlman & Co. v. Law, 239 N.Y. 346, 146 N.E. 622 (1925), that is not the case in bankruptcy proceedings where the burden of establishing its claim rests on the government. In re Gorgeous Blouse Co., Inc., 106 F. Supp. 465 (S.D.N.Y.1952). The government is aided, however, by a strong presumption which arises in its favor by the filing of a sworn proof of claim; a prima facie case is established and the burden of going forward with rebutting evidence is on the debtor. In re Garfield Bag & Stationery Co., Inc., 42 F. Supp. 708, 710-11 (S.D.N.Y.1941); In re Bradley, 16 F.2d 301, 302 (S.D.N.Y. 1926). See also Bankruptcy Rule 301(b). The ultimate burden of persuasion remains on the government. In re Gorgeous Blouse Co., Inc., supra, 106 F. Supp. at 465. Thus, the City here established its prima facie case when it filed its sworn proof of claim. The question is whether Avien sufficiently rebutted the presumption arising from that filing so as to shift the burden of going forward back to the City. By its own admission, the City relies heavily, almost exclusively, on the figures reported on a taxpayer's federal return, and their accuracy as guaranteed by federal audits, in computing the taxpayer's City tax liability. It would thus seem manifestly unfair to hold that in a bankruptcy proceeding the debtor must offer more than the City normally relies on itself. Moreover, if the City questioned the accuracy of the figures reported on the federal returns the burden of at least so indicating was on the City, particularly in view of the fact that the City itself audited Avien's books and records for the periods in question. Avien's comptroller testified in the bankruptcy court and could have been cross-examined as to the accuracy of the 1969 and 1970 federal returns. The City could not properly remain silent below and raise now for the first time an unsupported challenge to Avien's 1969 and 1970 federal returns. The rapid administration of debtor's affairs would, indeed, be ill served by sanctioning such procedure. Consequently, the court holds that Avien sufficiently rebutted the City's presumption by offering into evidence copies of its 1969 and 1970 federal tax returns, which indicated losses of $165,427.60 and $337,177.85.[7] Accordingly, the decision of the bankruptcy judge expunging the City's claim for general corporation tax is affirmed. So ordered. NOTES [1] As a result of some slight modifications, Avien's reported income for City tax purposes for fiscal 1968 was $286,969.82. [2] Section 172 of the Code provides in part: "(a) Deduction allowed.There shall be allowed as a deduction for the taxable year an amount equal to the aggregate of (1) the net operating loss carryovers to such year, plus (2) the net operating loss carrybacks to such year. For purposes of this subtitle, the term `net operating loss deduction' means the deduction allowed by this subsection. "(b) Net operating loss carrybacks and carryovers. "(1) Years to which loss may be carried. "(A) (i) Except as provided in clause (ii) and in subparagraph (D), a net operating loss for any taxable year ending after December 31, 1957, shall be a net operating loss carryback to each of the 3 taxable years preceding the taxable year of such loss. * * * * "(B) Except as provided in subparagraphs (C) and (D), a net operating loss for any taxable year ending after December 31, 1955, shall be a net operating loss carryover to each of the 5 taxable years following the taxable year of such loss. * * * * * "(2) Amount of carrybacks and carryovers. Except as provided in subsections (i) and (j), the entire amount of the net operating loss for any taxable year (hereinafter in this section referred to as the `loss year') shall be carried to the earliest of the taxable years to which (by reason of paragraph (1)) such loss may be carried. The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried." [3] Appellant's Brief at 20-21. [4] Similarly, a corporation which at present is located out of the City and has incurred an operating loss in its last fiscal year would, if it also sustained a loss in its first year in the City, risk having to pay City tax on income earned in its second fiscal year in the City because it would have to use the pre-City loss as an offset on its federal return and consequently, according to the City, also on its City return. This situation would certainly act as a disincentive to a corporation contemplating a move to the City and could hardly have been intended by the drafters of the City tax law. [5] During oral argument the City indicated that it would not even permit Avien to amend its 1968 federal return to waive 1963, 1965 and pre-January 1, 1966 losses and substitute therefor post-January 1, 1966, 1969 and 1970 losses. [6] Section 46-5.0(3) requires a City taxpayer to notify the City taxing authority of any change made by federal taxing officials in the taxpayer's federal return. [7] Since the 1969 and 1970 losses are more than sufficient to offset Avien's 1968 income of $282,598.52 it is not necessary to decide the sufficiency of the proof offered with respect to the portion of Avien's 1966 loss occurring after January 1, 1966.	{ "pile_set_name": "FreeLaw" }
5 F.3d 537NOTICE: 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. Don LaFLAMME, Plaintiff-Appellant,v.James H. GOMEZ; et al., Defendant-Appellee. No. 92-15788. United States Court of Appeals, Ninth Circuit. Submitted Sept. 1, 1993.Decided Sept. 13, 1993. Appeal from the United States District Court for the Northern District of California, No. CV-92-00542-VRW; Vaughn R. Walker, District Judge, Presiding. N.D.Cal. VACATED AND REMANDED. Before: FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges. 1 MEMORANDUM* 2 California state prisoner Donald LaFlamme appeals pro se the district court's dismissal based on improper venue of his 42 U.S.C. Sec. 1983 action. We have jurisdiction under 28 U.S.C. Sec. 1291, and we vacate and remand. 3 The district court dismissed LaFlamme's action under 28 U.S.C. Sec. 1406(a) for improper venue because LaFlamme's complaint names defendants residing in the Eastern District of California and apparently arises from events occurring in that district. We review this dismissal for an abuse of discretion. See Central Valley Typographical Union No. 46 v. McClatchy Newspapers, 762 F.2d 741, 745 (9th Cir.1985). Where there has been no appearance by the defendant, the district court may dismiss for lack of venue on its own motion. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir.1986). 4 We hold that the district court did not abuse its discretion by dismissing the action on the ground that venue was improper in the Northern District. Under 28 U.S.C. Sec. 1391(a) or (b), venue lies where any defendant resides or where the claim arose. LaFlamme's claim arose in the Eastern District, and the defendants reside in that district. LaFlamme has set forth no facts to indicate that venue is proper in the Northern District. 5 Although the district court has broad discretion under 28 U.S.C. Sec. 1404(a) to decide whether to dismiss for lack of venue or transfer in the interest of justice, the district court's discretion does not extend to dismissal with prejudice. Oaks of Woodlake Phase III, Ltd. v. Hall Bayoutree Assoc., Ltd., 939 F.2d 802, 806 (9th Cir.1991). Accordingly, we vacate the district court's order and remand for entry of an order dismissing LaFlamme's action without prejudice.1 See id. 6 VACATED AND REMANDED. * The panel unanimously finds this case suitable for decision without oral argument. 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 LaFlamme's motion for "Writ of Mandamus and/or Prohibition" is denied. Additionally, because we hold that dismissal on venue grounds was proper, we need not address the district court's finding that some of LaFlamme's claims were barred by res judicata	{ "pile_set_name": "FreeLaw" }
540 U.S. 899 THOMPSONv.TEXAS. No. 03-5274. Supreme Court of United States. October 6, 2003. 1 Appeal from the Ct. Crim. App. Tex. 2 Certiorari denied. Reported below: 93 S. W. 3d 16.	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION MAY 07 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 11-50352 Plaintiff - Appellee, D.C. No. 3:10-cr-00725-L-1 v. MEMORANDUM * DELBERT LENNARD HOLLEY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California M. James Lorenz, Senior District Judge, Presiding Argued and Submitted March 8, 2013 Pasadena, California Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District Judge.** Delbert Holley appeals his conviction for making false statements in the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6). We have jurisdiction under 28 U.S.C. § 1291, and we affirm Holley’s conviction. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Mark L. Wolf, Senior District Judge for the U.S. District Court for the District of Massachusetts, sitting by designation. The district court properly denied Holley’s motion to suppress his January 6, 2010, statements to San Diego County sheriff’s detectives because Holley was not then in custody as is necessary to require warnings under Miranda v. Arizona, 384 U.S. 436 (1966). See United States v. Craighead, 539 F.3d 1073, 1083–84 (9th Cir. 2008). There was ample evidence to prove that only two detectives were present for the interrogation in Holley’s home, Holley was not restrained, and he was not isolated from the members of his family, who were in the room when he was questioned. In the totality of the circumstances, Holley was not questioned in the “police-dominated atmosphere” that makes an interrogation in a person’s home custodial and, therefore, requires Miranda warnings. See Craighead, 539 F.3d at 1083–84. Because Holley was not in custody for the purpose of Miranda when he made statements to the detectives on January 6, 2010, the questioning of him on February 4, 2010, does not implicate the two-step interrogation process for persons in custody that is discussed in Missouri v. Seibert, 542 U.S. 600, 604 (2004). See United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006). The district court did not err in denying Holley’s motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Holley was charged with a single count of making false statements in the acquisition of a firearm in violation 2 of 18 U.S.C. § 922(a)(6). That single count alleged two, discrete material false statements made by Holley on Form 4473 of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”): (1) that Holley was not an unlawful user of controlled substances; and (2) that Holley was the actual purchaser of the firearm. 18 U.S.C. § 922(d)(3) makes it unlawful to sell a firearm to a user of a controlled substance. The jury was informed of this prohibition by the testimony of ATF Special Agent Matthew Beals. The district judge, rather than the witness, should have instructed the jury on § 922(d)(3), the requirements of which are a matter of law not fact. See Aguilar v. Int’l Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992). However, Beals’s testimony was an accurate statement of the law concerning § 922(d)(3). The district judge correctly instructed the jury that the government had to prove that any false statement was material. See Neder v. United States, 527 U.S. 1, 16 (1999); United States v. Gaudin, 515 U.S. 506, 512–19 (1995); United States v. Moore, 109 F.3d 1456, 1463–66 (9th Cir. 1997). The district judge also properly instructed the jury that a statement was material if it had a “natural tendency to influence, or [was] capable of influencing” the dealer in deciding whether the firearm could lawfully be sold to Holley. Neder, 527 U.S. at 16 (quoting Gaudin, 515 U.S. at 509). 3 Viewed in the light most favorable to the government, United States v. H.B., 695 F.3d 931, 935 (9th Cir. 2012), the evidence was sufficient to prove that Holley’s statement on ATF Form 4473 that he was not an unlawful user of controlled substances was false. The evidence also was sufficient for the jury to find that this false statement was material. The government was only required to prove one of the two alleged material false statements to obtain Holley’s conviction. See United States v. Portac, Inc., 869 F.2d 1288, 1296 (9th Cir. 1989); United States v. Vuckson, 354 F.2d 918, 920 (9th Cir. 1966). Therefore, it is not necessary to decide the merit of Holley’s contention that any false statement concerning whether he was the actual purchaser of the shotgun was not material to the lawfulness of the sale because the government had not introduced sufficient evidence to prove that Donnell Roberts, the person for whom Holley bought the firearm, was legally prohibited from purchasing it. Compare United States v. Polk, 118 F.3d 286, 294–95 (5th Cir. 1997) (no liability under § 922(a)(6) where true purchaser can legally purchase firearms), with United States v. Abramski, 706 F.3d 307, 316 (4th Cir. 2013) (quoting United States v. Frazier, 605 F.3d 1271, 1280 (11th Cir. 2010)) (government need not prove that true purchaser is legally prohibited from purchasing firearms because identity of purchaser is always material to lawfulness of firearms purchase). 4 Nor do Holley’s claims of prosecutorial misconduct justify relief. It was not misconduct for the prosecutor to ask Detective Mark Palmer how Palmer “would describe [Holley]” when Holley answered certain questions. In any event, Palmer’s unsolicited description of Holley as “untruthful” did not materially affect the fairness of the trial, see United States v. Reyes, 660 F.3d 454, 461 (9th Cir. 2011), in part because the judge sustained defense counsel’s objection, granted his motion to strike that statement, and later instructed the jury to disregard any testimony that had been stricken. It is presumed that a jury follows the court’s instructions. See Richardson v. Marsh, 481 U.S. 200, 206 (1987); United States v. Kalin, 50 F.3d 689, 694 (9th Cir. 1995). Assuming, without deciding, that the prosecutor engaged in misconduct by eliciting references to the issuance of a warrant for Holley’s arrest based on probable cause, those references too did not materially affect the fairness of the trial. See Reyes, 660 F.3d at 461. There were several such references. Defense counsel objected only to some of them. The district judge instructed the jury to “disregard what a federal judge found.” Once again, the jury is presumed to have followed this instruction. See Richardson, 481 U.S. at 206. Holley did not object to the prosecutor’s reference in closing argument to the fact that the shotgun Holley bought was used by Roberts to commit a murder and 5 kill himself. That reference did not constitute plain error. See Reyes, 660 F.3d at 461. The murder and suicide were discussed by witnesses throughout the trial without objection. In closing arguments “prosecutors are free to argue reasonable inferences from the evidence.” United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989); accord United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002). Moreover, to the extent the prosecutor’s single statement was arguably an improper appeal to emotion, see United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005), in the context of all of the other evidence that the jury was entitled to credit, that statement did not “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings” or cause a miscarriage of justice. See Reyes, 660 F.3d at 461 (quoting United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002)). AFFIRMED. 6	{ "pile_set_name": "FreeLaw" }
121 Ill. App.3d 813 (1984) 460 N.E.2d 75 JAMES DUNAVAN, Plaintiff-Appellant, v. HERITAGE HOUSE NURSING HOME et al., Defendants-Appellees. No. 82-663. Illinois Appellate Court Fifth District. Opinion filed January 26, 1984. 814 Michael J. Logan, of Calandrino, Logan and Berg, P.C., of Springfield, for appellant. James B. Wham, of Wham & Wham, of Centralia, for appellees. Order affirmed. JUSTICE JONES delivered the opinion of the court: Plaintiff appeals from an order of the trial court that dismissed his second amended complaint for damages for personal injuries and from a subsequent order denying his motion for reconsideration. The basis of the court's order of dismissal was that because of mistaken identity the plaintiff had brought suit against and served the wrong party defendant. In its order the court denied the plaintiff leave to amend his complaint to change the name of the defendant on the basis of a misnomer because the statute of limitations was a bar to the action. We affirm. There is no dispute of the facts. Plaintiff was a nursing home inspector employed by the State of Illinois. On June 15, 1976, in the course of his duties, he slipped and fell at a nursing home in Vandalia called Heritage House Nursing Home, allegedly receiving the injuries that are the subject of this suit. On June 14, 1978, plaintiff filed his 815 complaint for personal injuries, naming as parties defendant "Heritage House Nursing Home and Bonnie Johnson, its Administrator." The complaint was filed one day before the expiration of the applicable two-year statute of limitations. Service of summons was made, as shown by the sheriff's return, upon "Bonnie Johnson," without more, and also upon Heritage House Nursing Home by serving Doris Langston, "registered agent, officer or agent." Service on both parties was made on June 20, 1978, a time after the expiration of the two-year statute of limitations. On July 17, 1978, a motion to dismiss the complaint was filed on behalf of the named defendants on the grounds that Heritage House Nursing Home was not a legal entity and that no cause of action had been stated against Bonnie Johnson. No further action was taken until September 1, 1981, when plaintiff filed a motion for leave to file an amended complaint substituting "Langston Enterprises, Incorporated, a Foreign Corporation" in place of defendants Heritage House Nursing Home and Bonnie Johnson, its administrator. "Bonnie Johnson, its Administrator" was not included as a party defendant in the amended complaint plaintiff sought leave to file. The court heard argument on plaintiff's motion on September 1, and, on October 8, 1981, entered the following record sheet order: "This matter having come on for hearing on plaintiff's Motion for Leave to File Amended Complaint to substitute a party defendant and objection thereto by defendant and the Court having heard arguments and considered briefs as prepared by counsel, deny [sic] plaintiff's Motion to add or substitute party defendant. Said ruling is based on the requirements of Sec. 46(4) of the Civil Practice Act of Illinois. Specifically this Court finds that plaintiff has not carried the burden of showing, as he must, that the party to be added or substituted within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him. The plaintiff has failed to show or demonstrate this to the Court. Therefore, plaintiff cannot avail himself of the benefits of this situation. Complaint dismissed. Defendant's [sic] Motion to Dismiss granted with leave given plaintiff to file an Amended Complaint against Bonnie Johnson." No appeal was taken by plaintiff from the order of October 8 that denied plaintiff the right to substitute Langston Enterprises, Incorporated, a foreign corporation, as a party defendant in the place of Heritage 816 House Nursing Home, and we do not review the propriety of that order. On November 2, 1981, plaintiff filed an amended complaint naming as the sole defendant "Bonnie Johnson, Administrator of Heritage House Nursing Home." In response to a motion, the amended complaint was dismissed, and plaintiff was granted leave to file a second amended complaint by a record sheet order of March 26, 1982. The second amended complaint was filed on March 26, 1982, naming as the sole defendant "Bonnie Johnson, Administrator of Heritage House Nursing Home." The second amended complaint was in one count and was directed against "Bonnie Johnson, Administrator of Heritage House Nursing Home." Numbered paragraph one of the complaint alleged that on June 16, 1976, Langston Enterprises, Incorporated, owned and operated a nursing home called Heritage House Nursing Home. Numbered paragraph two alleged that Bonnie Johnson was employed by Langston Enterprises, Incorporated, as "an" administrator of Heritage House Nursing Home. The remaining nine paragraphs of the second amended complaint were given to allegations of the negligence of the defendant, and it concluded with a prayer for a judgment against "Bonnie Johnson, Administrator of Heritage House Nursing Home." Bonnie Johnson thereupon filed a motion to dismiss the second amended complaint pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). The motion was supported by her affidavit that attested that although she had been an employee at Heritage House Nursing Home for a number of years prior to May 1975, she had left that employment some time in April 1975 and had never thereafter returned to work for Langston Enterprises, Incorporated. The affidavit further recited that she had not been on the premises of the Heritage House Nursing Home after April 1975. These facts were not disputed by the plaintiff in any way. Following a hearing and the submission of briefs, the court dismissed the second amended complaint by the following record sheet entry of June 23, 1982, that comprises the order that is the subject of this appeal: "The Court has considered the pleadings on file, arguments of counsel and briefs which were submitted by counsel for both parties; after considering all of the above, the Court finds that the naming of `Bonnie Johnson as Administrator * ' in the Second Amended Complaint herein is a case of mistaken identity and not merely a misnomer which could be now corrected under Sec. 21 of the Civil Practice Act; the Court also finds that the plaintiff cannot now avail himself of the provisions of 817 Sec. 46(4) to add or substitute a party defendant as the Statute of Limitations has expired; accordingly defendant's Motion to Dismiss is granted as to the 2nd Amended Complaint." By an order entered on October 15, 1982, plaintiff's motion for reconsideration was denied, and this appeal followed. It is plaintiff's contention on appeal that section 21 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 21) is addressed to misnomer in pleadings and authorizes the change of the name of the defendant in the second amended complaint from Bonnie Johnson, administrator, to Doris Langston, administrator. Plaintiff notes that service of summons was made upon both Bonnie Johnson, a past administrator of Heritage House Nursing Home, and Doris Langston, the registered agent of Langston Enterprises, Incorporated, the owner and operator of Heritage House Nursing Home. Plaintiff reasons that the designation of an individual, that is, Bonnie Johnson, in the caption of the complaint as an administrator, with no additional designation of such person as being a party individually, should have been sufficient indication of the party intended to be sued, namely, the administrator, provided service was in fact effected upon the proper party. In this case, plaintiff continues, the proper party "for service" was Doris Langston, now alleged to be the administrator of Heritage House Nursing Home, and service was effected upon her when she was served as the registered agent of the corporation that operated Heritage House Nursing Home. Section 21(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 21(2)) provides: "(2) Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires." Since the statute of limitations had run on plaintiff's cause of action at the time service of summons was effected, substitution of the parties could be made only for misnomer pursuant to section 21(2). A new party could be added only if all the conditions of section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46(4)) had been met. That section provides that a cause of action against a person not originally named a defendant is not barred by lapse of the time provided in a statute or contract within which to bring an action or assert a right, but the prescribed conditions must be fulfilled. The recent case of Clinton v. Avello (1982), 105 Ill. App.3d 336, 338, 434 N.E.2d 355, 356, recites the following, with which we fully agree: 818 1 "The pivotal inquiry in dealing with an issue of misnomer is who did the plaintiff intend to sue. (Schultz v. Gerstein (1977), 50 Ill. App.3d 586, 365 N.E.2d 1128; Cigan v. St. Regis House Hotel (1979), 72 Ill. App.3d 884, 391 N.E.2d 197; Ashley v. Hill (1981), 101 Ill. App.3d 292, 427 N.E.2d 1319.) To conduct this inquiry, a court must look at evidence in the record which serves as a manifestation of the plaintiff's intent. Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 20 N.E.2d 280; Goff v. Will County (1941), 311 Ill. App. 207, 35 N.E.2d 718; Ashley v. Hill (1981), 101 Ill. App.3d 292, 427 N.E.2d 1319. The most probative evidence of who a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such a party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party. Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 20 N.E.2d 280; Schaffner v. B. & W. Auto Sales Co. (1944), 321 Ill. App. 632, 53 N.E.2d 318; Marsden v. Neisius (1955), 5 Ill. App.2d 396, 126 N.E.2d 44." The court in Clinton noted that the plaintiff intended to sue the driver of the car who caused his injuries. They said, however: "We do not believe that such general descriptive language in a complaint is sufficient evidence of who the plaintiff intended to sue. It merely begs the question for a plaintiff to contend that he intended to sue the party that caused his injuries." (105 Ill. App.3d 336, 338, 434 N.E.2d 355, 356.) We think that much the same situation pertains in the case under consideration and that we have a case of mistaken identity rather than an instance of misnomer. It is apparent from the original complaint filed in this case that the plaintiff intended to sue the entity operating the nursing home and the administrator of the nursing home. Both were named and both were charged with negligence in a one-count complaint. However, the name ascribed to the nursing home was, on its face, a legal non-entity, and the name of the administrator was in error because the person so designated was, it later developed, neither the administrator nor an employee of the nursing home. Over three years after filing his original complaint, plaintiff sought leave to file an amended complaint in which he correctly designated as a party defendant the corporation that owned and operated the nursing home as the sole party defendant. Basing its ruling on section 46(4) of the Civil Practice Act, the court denied plaintiff leave to file this complaint. That order was not appealed. Thereafter, no further effort was made by plaintiff to bring in the named corporation, 819 Langston Enterprises, Incorporated, as a party defendant. Following the unsuccessful effort to add the corporation as a party defendant, plaintiff turned his efforts toward the administrator of the nursing home. In two subsequent amended complaints, plaintiff named Bonnie Johnson, administrator of the Heritage House Nursing Home, as the only defendant. The second amended complaint, the one we review, alleges that Langston Enterprises, Incorporated, at material times, employed Bonnie Johnson as administrator of Heritage House Nursing Home. Specific acts of negligence are alleged to have been committed by defendant. The second amended complaint concludes with a prayer for a judgment against "Bonnie Johnson, Administrator of Heritage House Nursing Home," in excess of $15,000. "The misnomer rule is narrow, however, and applies only where an action is brought and summons served upon a party intended to be made a defendant (thus giving actual notice of the lawsuit against the real party-in-interest), but the process and complaint do not refer to the person by his correct name. (Janove v. Bacon (1955), 6 Ill.2d 245, 250, 128 N.E.2d 706, 709; Ingram v. MFA Insurance Co. (1974), 18 Ill. App.3d 560, 566, 309 N.E.2d 690, 695, appeal denied (1974), 56 Ill.2d 587.) The courts of this State have long distinguished the misnomer rule, which is applicable only to correctly joined and served but misnamed parties, from those cases where due to mistaken identity the wrong person is joined and served. (E.g., Proctor v. Wells Brothers Co. of New York (1914), 262 Ill. 77, 104 N.E. 186, aff'g (1913), 181 Ill. App. 468; Cigan v. St. Regis House Hotel (1979), 72 Ill. App.3d 884, 391 N.E.2d 197.) The determination of whether a case involves misnomer or mistaken identity depends on the intent of the parties, but the subjective intention of plaintiff as to who he intended to sue has not been held controlling in the face of objective manifestations indicating an intent to sue another. Proctor v. Wells Brothers Co. (1914), 262 Ill. 77, 80-81, 104 N.E. 186, 187." (Ashley v. Hill (1981), 101 Ill. App.3d 292, 294-95, 427 N.E.2d 1319, 1321.) Also see Leonard v. City of Streator (1983), 113 Ill. App.3d 404, 447 N.E.2d 489. In the posture presented, the second amended complaint seeks a judgment against Bonnie Johnson, personally and individually. Bonnie Johnson, administrator, is not an entity separate and apart from Bonnie Johnson, an individual. The appellation of "Administrator of Heritage House Nursing Home" following the name of Bonnie Johnson is nothing more than a descriptive term. It neither constitutes nor describes 820 a legal entity. It neither adds to nor detracts from the personal liability of the individual named as administrator, especially where, as here, there is no attempt in the complaint to impose liability vicariously upon the employer corporation. The term "administrator" as a suffix provides no source for collection of any judgment rendered other than from Bonnie Johnson. As we have already noted, Heritage House Nursing Home is not a legal entity. There is no attempt made in the second amended complaint to allege or show that Bonnie Johnson, administrator, is the alter ego of Langston Enterprises, Incorporated, or to show in any manner that that corporation would be liable for any judgment that might be rendered against Bonnie Johnson. While a person employed in the capacity of an "administrator" may be a proper party to receive service of summons for the entity which the administrator serves, the administrator cannot be said to be the alter ego of that entity. "The administrator," as used in this case in particular, is an especially informal designation. Webster's Third New International Dictionary defines "administrator," in the context applicable here, as: "[O]ne that administers: as * * an officer that directs or superintends affairs (as of a business, school or government agency)." (Webster's Third New International Dictionary 28 (1961).) It is stated in C.J.S. that "[t]he term [administrator] is sometimes used in a generic, not a technical sense, as being broad enough to include all who administer property within the particular class by whatever name called. So used, the word may be defined in a general sense, as one who administers, a manager * * ." 2 C.J.S. 80 (1972). 2 In view of the foregoing analysis, when Bonnie Johnson's section 48 motion and affidavit disclosed that she had not been an employee of Langston Enterprises, Incorporated, for two months prior to, and was not at the nursing home at the time of plaintiff's accident, plaintiff's case against Bonnie Johnson collapsed. Plaintiff had brought suit against the wrong person, an instance of mistaken identity rather than of misnomer. It is of no consequence that the wrong person was designated an administrator. 3 Even if the descriptive appellation of "Administrator of Heritage House Nursing Home" be appended to the name of Doris Langston, whom plaintiff seeks to substitute for Bonnie Johnson, plaintiff's case cannot be resurrected. That Doris Langston was the administrator of the nursing home on the date of plaintiff's accident would not in and of itself impose liability for that accident upon Langston Enterprises, Incorporated. In the capacity of administrator she, like Bonnie Johnson, would be at most a proper agent for service of summons upon the corporation had the corporation been named a defendant. If 821 personal liability were in fact sought against her, the fact that she was administrator of the nursing home at the time of the accident would not absolve her from her personal liability, nor would it permit imposition of liability upon the corporation that had already been dismissed out of the case as a party defendant. Accordingly, any attempt at this late date to impose personal liability upon Doris Langston has long been barred by section 46(4) of the Civil Practice Act. And aside from the impediment of section 46(4), her name cannot be substituted for that of Bonnie Johnson because of a misnomer pursuant to section 21(2) of the Civil Practice Act. It was an instance of mistaken identity. Affirmed. KARNS and HARRISON, JJ., concur.	{ "pile_set_name": "FreeLaw" }
114 F.Supp. 814 (1953) WILSON et al. v. UNITED STATES et al. No. 924. United States District Court W. D. Missouri, S. W. Division. August 24, 1953. 815 816 817 Stanley P. Clay, Joplin, Mo., for plaintiffs. James E. Kilday, Francis J. Heazel, Jr., Stanley N. Barnes, Sp. Assts. to Atty. Gen., Washington, D. C., Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief, for defendants. Allen Crenshaw, Washington, D. C., for Interstate Commerce Commission. Before STONE, DUNCAN and RIDGE, District Judges. RIDGE, District Judge. On reconsideration of a Division No. 5 order favorable to petitioners' application for a certificate of convenience and necessity as a contract motor carrier, the Interstate Commerce Commission (two members dissenting and one member not participating) found "that applicants (petitioners) * * have failed to show that the proposed operation will be consistent with the public interest and the national transportation policy, and that the application should be denied." Petitioners brought the instant review action to annul, set aside and enjoin said order. We have jurisdiction in the premises by virtue of Sections 1336, 1398, 2284, and 2321-2325, Title 28, U.S.C.A. In their complaint, petitioners allege that the report and order of the I.C.C. so entered is unjust, arbitrary, unreasonable and without any basis in fact or law, in that the I.C.C. erroneously (a) considered a certificate of convenience and necessity of Frozen Food Express, a protesting motor carrier in the proceeding, which was issued subsequent to the date of filing of petitioners' 818 application with the Commission; (b) considered the operating authority of Frozen Food Express and Refrigerated Transport, Inc., when said carriers did not petition for reconsideration of the Division No. 5 order; (c) considered the operating authority of Refrigerated Transport a protesting motor carrier which was not placed in the record; (d) and the operations of Refrigerated Transport thereunder when that motor carrier submitted no evidence as to its fitness, operations and equipment, to reasonably provide the supporting shipper with adequate motor carrier service; (e) considered a trip-lease arrangement of Frozen Food and Refrigerated Transport when the agreement relating thereto was not in the record before the Commission; (f) and was in fact shown to be an illegal operation by said motor carriers; (g) in incorrectly interpreting and construing the scope of operating authority of Frozen Food as a common carrier; (h) and failed to consider petitioners' challenge of the Examiner's qualifications that heard and granted the application of Frozen Food for such authority; (i and j) considered rail service as being direct and adequate to meet the particular needs of the supporting shipper when no evidence was offered by rail protestants and connecting rail carriers in respect to their willingness and ability to meet the particular needs of such shipper; and (k) in not finding as matter of law that the supporting shipper was entitled to motor carrier service as well as rail service. In light of the findings and order entered by the I.C.C., and notwithstanding the several objections raised by petitioners, we believe the only issue that can legally be adjudicated in this review proceeding is: Are the findings and order of the Commission supported by substantial evidence? By briefs and argument before the Court, it is revealed that the substance of petitioners' attack is that the order of the Commission is not supported by substantial evidence. Objections which petitioners proffer that go to the soundness of the reasoning by which the Commission reached its conclusion: that the order of the Commission is inconsistent with conclusions reached by it in similar cases; that some evidence was improperly considered, and that inferences drawn from the evidence were unwarranted, are matters which we are not authorized to consider in this review proceeding. Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268, 46 S.Ct. 500, 70 L.Ed. 941. The determination by the Commission "that applicants (petitioners) have failed to show that the proposed operation will be consistent with the public interest and the national transportation policy" is a question as to which the findings of the Commission are conclusive if supported by substantial evidence, unless there is some irregularity in the proceeding or some error in the application of proper rules of law. Western Paper Makers' Chemical Co. v. United States, supra; Virginia Stage Lines v. United States, D.C., 48 F.Supp. 79; O'Malley v. United States, D.C.Minn., 38 F.Supp. 1. The only semblance of attack as to the regularity of proceedings before the I.C.C., tendered by the instant complaint, is that the Commission on reconsideration considered the operating authority of Frozen Food Express, granted after petitioners' application was filed, and that of another opposing motor carrier when both such carriers did not petition for reconsideration of the Division No. 5 order. As to that proposition, petitioners concede that they "find no legal authorities approving or disapproving" such procedure, but they assert, "This Court should give consideration to the same" in the particular setting of this case. We do, and find it to be without merit. By paragraphs 6 and 7, Section 17 of the I.C.C. Act, 49 U.S.C.A. § 17, pars. 6 & 7, as well as Section 7(a) of the Administrative Procedure Act, Title 5 U.S. C.A. § 1007(a), the whole Commission is vested with authority to reverse, change or modify a decision or order of a division thereof and to review the same on the record made in the division, or at an Examiner's hearing. When it does so, we know of no rule or statute that would require or permit the whole Commission to consider only a part of such record, or which would 819 prohibit the Commission, a division, or Examiner thereof, from considering the authority of other motor carriers issued and outstanding at the time a hearing is held, particularly when, as here, it was submitted by a protesting motor carrier appearing in opposition to an application. The Commission could even take official notice of such orders and certificates of convenience and necessity. Crichton v. United States, D.C., 56 F.Supp. 876, affirmed per curiam, 323 U.S. 684, 65 S.Ct. 559, 89 L.Ed. 554; Summer & Co. v. Erie R. Co., 262 I.C.C. 43, 51. Reconsideration of the divisional order was granted on petition of rail carriers appearing as protestants in the proceeding before the Commission. In granting reconsideration on that petition, the Commission "reopened" the proceedings "for reconsideration on the present record." (Order of Comm.) In light of such order, there can be no question but that the entire record made in the division, and before the Examiner, was properly before the whole Commission. It could not be otherwise, though reconsideration was granted at the behest of only one protestant appearing in the proceeding. The record so made, together with all evidence adduced by any protestant appearing in the proceeding could be properly considered, whether they individually petitioned for reconsideration or not. A partial consideration of a record by the Commission would, in our opinion, have subjected an order made by it to attacks far more serious than those petitioners level against the instant order. In its order, the Commission defined the issue which it considered should be resolved "(i)n determining whether the proposed contract-carrier operation will be consistent with the public interest, * ." It stated the issue as follows: "We must ascertain whether the reasonable requirements of the supporting shipper may adequately be met by available carriers." In the setting of this contract-carrier proceeding, we believe the Commission properly conceived and defined the issue to be resolved, before petitioners were entitled to a certificate of convenience and necessity on their application. In the past, the Commission has stated in a number of cases before it that "in order to foster a sound transportation system, existing motor carriers should normally be accorded the right to transport all traffic which they can handle adequately, efficiently and economically in the territory served by them as against any person now seeking to enter the field of motor carrier transportation in circumstances such as are here disclosed." Louis Jagel & Louis A. Jagel, Extension, 5 F.C.C., 94; Forrest Worm & Fred Worm Extension of Operations, 32 M.C.C. 641. In the expertise of the Commission, we believe it to be authorized and empowered under the I.C.C. Act to so define the issue to be resolved on an application such as here involved. We accept such as being the legal issue before the Commission, and in this review proceeding shall confine our consideration as to whether that issue as resolved by the Commission is supported by substantial evidence. In resolving that issue, the Commission found and the record here reveals "that the supporting carrier presently is shipping cheese, fresh, frozen, and dried eggs, and dressed poultry from its plants in Kansas to various principal points in the involved destination territory." The destination territory sought in the application was "all points in the States of Louisiana, Mississippi, Alabama, Georgia, Florida, Tennessee, South Carolina and North Carolina" by irregular routes. The Division No. 5 order granted authority to specific locations in that territory as to which the supporting shipper was presently making shipments from its plant in Kansas. The evidence establishes and the Commission found that the supporting shipper was presently making shipments of the above-mentioned dairy products as follows: Approximately 50 per cent of the involved traffic has been transported by shipper, 5 per cent by consignees, 10 per cent by nonregulated carriers, 20 per cent by motor carriers, and 15 per cent by rail." As processors and packers of cheese, frozen and dried eggs, and dressed poultry, the supporting shipper is revealed as having plants in ten separate cities in Kansas from which it presently makes 820 shipments. It contended before the Commission that of these ten points of origin, common carrier motor truck service was presently available from only two points. The Commission construing the scope of operating authority of Frozen Food Express, one of the protesting carriers in the instant matter, found that that carrier was authorized to transport "frozen eggs and frozen poultry" from all points of origin in the State of Kansas "to Memphis and points in Louisiana and Mississippi." Petitioners here assert that the Commission misinterpreted and misconstrued the carrier authority of Frozen Food. They would now have us construe that authority and rule that Frozen Food is limited in its authority to transport such commodities only from two points in Kansas, and as a consequence of such ruling decree that the supporting shipper does not have motor carrier service available to it at all points of origin of its shipments. The scope of lawful operations by a motor carrier is both a legal and factual matter peculiarly within the authority of the I.C.C. to resolve in the first instance. Unless we can say as a matter of law that the Commission's interpretation of Frozen Food's authority as shown by the record herein cannot be sustained, we are bound by any factual determination concerning the same made by the Commission. If the authority granted Frozen Food is ambiguous in its terms, then "its interpretation is for the Commission; and the courts cannot disregard such interpretation * * unless it is clearly erroneous or arbitrary". Adirondack Transit Lines v. U. S., D.C., 59 F.Supp. 503, 504; affirmed 324 U.S. 824, 65 S.Ct. 688, 89 L.Ed. 1393; United Truck Lines v. I. C. C., 9 Cir., 189 F.2d 816. The certificates of authority of Frozen Food are contained in the record. It has three such certificates. In support of the contention that the Commission "misinterpreted and misconstrued" Frozen's authority, petitioners level their attack as to that granted Frozen in MC-108207 (Sub. 12). Petitioners contend that the (Sub. 12) certificate is the only one pertinent in this case. After blocking out the authority therein defined, petitioners in their brief (p. 13) state: "At the outset, it is clear that the authority clause (of Sub. 12) is inexpertly drawn and ambiguous. Possibly it is susceptible to several interpretations." That being the legal evaluation to be given to said certificate, then the Commission's interpretation thereof is final. The whole Commission, as did Division 5, in its order defined the extent of Frozen's authority, and concluded that "(b)y combining such authorities it has authority to operate between Kansas, on the one hand, and Mississippi and Louisiana, on the other, with certain limitations," as to frozen eggs and frozen poultry. An examination of Frozen's certificates reveals that such interpretation of its authority may be gleaned therefrom. In Sub. 12, supra, Frozen is authorized to transport frozen foods and fresh meats, over irregular routes: "Between Memphis, Tennessee, and points in Arkansas, Louisiana and Texas, on the one hand, and, on the other, points in Iowa, Kansas and Nebraska." Certain restrictions are delineated in said certificate. The Commission considered the same as not being relevant to the determination of the extent of Frozen's authority so far as the instant matter is considered. We think the Commission's conclusion was correct. A consideration of such provision reveals that when shipments originate at certain points in Kansas, transportation thereof is restricted to a certain designated territory. We do not perceive those restrictions to delimit Frozen's authority to pick up shipments at all other places and points in Kansas, as petitioners contend. Subject to the restricted deliveries above referred to, Frozen can pick up and deliver shipments of frozen foods to and from all points in Kansas and the other territory referred to in said certificate. By tacking that authority to other authority held by Frozen, it has "authority to operate between Kansas, Mississippi and Louisiana." Cf. Transport Corp of VirginiaExt. of Op. 43 M.C.C. 716. The right of "tacking" authority is a matter wholly within the competence of the I.C.C. and its resolution of such a right will not be disturbed, unless 821 it is established as being misapplied as a matter of law. No such showing is here made. Petitioners' contention amounts to this: the Commission was wrong in its interpretation of the grammatical construction of Frozen Food's authority. We are not at liberty to take issue with the Commission in the realm of semantics when ambiguity is conceded. The Commission and Division No. 5 had the right to interpret Frozen Food's operating authorities as it did. We perceive no illegality as a matter of law in the interpretation so made by the Commission. Therefore, we cannot substitute any interpretation of ours in place of that of the Commission. Consequently, there is a rational basis for the Commission's finding that Frozen Food is authorized to transport "frozen eggs and frozen poultry" from all points in the State of Kansas, to Memphis, Tennessee, and all points in the States of Louisiana and Mississippi. To that extent, the conclusion of the Commission that the supporting shipper to petitioners' application has available "singleline service for the transportation of frozen eggs and frozen poultry to Memphis and points in Louisiana and Mississippi," is invulnerable to attack here, and to that extent the order is sustained by the substantial evidence. There was evidence before the Commission from which we believe it could conclude, as it did, that two-line service was available to the supporting shipper for part of its products, from point of origin of shipments to point of destination in the remaining territory covered in the application of petitioners which is not served direct by Frozen Food as above referred to. The evidence established that Frozen Food in connection with Refrigerated Transport, through New Orleans as a gateway, provides transportation for "frozen eggs and frozen poultry" from Kansas to Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. Refrigerated Transport appeared in opposition to the application of petitioners before the Commission, but submitted no evidence. Its operating authority, however, was made a part of the record at the Examiner's hearing (R. 177). It is not included in the transcript of the record filed in this Court. Therefore, we are bound by the finding of the Commission as to the lawful operating authority of Refrigerated Transport. It was petitioners' obligation to see that such authority was made a part of the instant record, before they could ask us to evaluate it as a matter of law. United States v. Northern Pacific Ry. Co., 288 U.S. 490, 53 S.Ct. 406, 77 L.Ed. 914; Spiller v. Atchison T. & S. F. Ry. Co., 253 U.S. 117, 125, 40 S.Ct. 466, 64 L.Ed. 810. Frozen Food in the past has made connections with Refrigerated Transport and entered into agreements to trip-lease its equipment with Refrigerated Transport, whereby the equipment of former, together with its drivers, is turned over to Refrigerated, at New Orleans gateway, for continuous transportation of "frozen eggs and frozen poultry" into Refrigerated's territory. Such triplease agreements are executed by said carriers as individual shipments demand. Refrigerated's ability to complete such transportation of Frozen Food might be presumed from the record before us as to "frozen eggs and frozen poultry." There was evidence before the Commission from which it could reasonably conclude that said carriers had interchanged transportation as to such products in the past and that they had been properly transported. Testimony as to Refrigerated's ability and willingness to provide the supporting shipper with refrigeration motor carrier service was given by witnesses appearing on behalf and in the employ of Frozen Food. The inference therefrom is that Frozen Food has available equipment for the movement of commodities covered by the application; that by the trip-lease arrangements commodities loaded in Frozen's equipment, together with its drivers, would be used to transport to all destination points covered in the application, by Refrigerated; that both such connecting operating authorities are limited to frozen poultry and frozen eggs. Petitioners contend that the trip-lease agreement between Frozen and 822 Refrigerated is not supported by substantial evidence. There was evidence before the Commission that such trip-lease agreement was orally made, but when put into effect a written lease was executed with respect to each shipment. Such oral agreement was outlined in detail by Frozen's President. We know of no requirement of law that such an agreement must be in writing The testimony of Frozen's President offered a substantial basis for finding by the Commission of such an oral arrangement. Petitioners also assert that the arrangement under said oral agreement whereby Frozen's equipment and drivers are continued in service under Refrigerated's authority is an illegal operation. As to the legality of such arrangement, it is sufficient to say that the Commission has apparently put its stamp of approval thereon by the instant order, and having done so on a factual basis, we know of no rule that would authorize us to hold such to be an illegal operation as a matter of law. Cf. In re Edward Michael Gardner, 7 F.C.C., par. 31,571.10. In light of the foregoing, we believe there was substantial evidence before the Commission from which it could find and conclude that the supporting shipper has available motor carrier service for the transportation of "frozen eggs and frozen poultry" to all points to which service is desired so as to sustain the conclusion of the Commission that "the proposed operation (would not) be consistent with the public interest and the national transportation policy." To that extent, the order must receive our approbation. But that is not to hold that a denial by the Commission of all the authority requested in petitioners' application filed with the Commission can or should be sustained. Petitioners' application sought authority to transport "dairy products as classified in Appendix B to the report in Modification of Permits-Packing House Products, 46 M.C.C. 23." The Commission found that "the supporting shipper presently is shipping cheese, fresh, frozen and dried eggs, and dressed poultry from its plants in Kansas." Division No. 5, in its order makes a like finding and in addition thereto found that said shipper "also contemplates processing and shipping butter from and to the same points." The record before the Commission reveals that the supporting shipper introduced substantial evidence of its reasonable need for motor transportation of all the above dairy products. The evidence is that frozen eggs and dressed poultry are shipped in vehicles kept at a temperature of 15° Fahrenheit or below, whereas butter, cheese, shell and dried eggs require a temperature above freezing; that the two groups of commodities cannot be transported in the same vehicle. The Commission's order shows on its face that the whole Commission did not, as Division 5 did do, consider the "reasonable requirements" of the supporting shipper for motor carrier service as to all products processed and shipped by it. The Commission's order is singularly confined to a finding of available transportation of "frozen eggs and frozen poultry." Frozen Food Express is not shown by the instant record to have any operation authority to transport dairy products, particularly butter, cheese, shell and dried eggs, from points of origin of shipments in Kansas. Hence, it has no authority to connect with Refrigerated as to those points, even if Refrigerated might be authorized to transport them. There was substantial evidence before the Commission that the supporting shipper was in economic need of motor carrier service for such shipments. The conclusion of the Commission that the application of petitioners should be denied in toto because the supporting shipper has available rail and motor carrier service to meet its "reasonable requirements" is not sustainable by even a scintilla of evidence so far as "butter, cheese, fresh and dried eggs" are here to be considered. The supporting shipper's needs must be considered in a contract motor carrier's application to the extent of meeting its reasonable transportation requirements. The Commission so held in Upper Columbia River Towing Company Purchase, 8 F.C.C., par. 31,968, among other factors, "in determining the question of consistency with the public interest." Division No. 5, by its order, reveals that it gave consideration to such factors. *823 We do not find that the whole Commission did so. Present rail service to the extent that it has been utilized by the supporting shipper was established as being adequate to transport such shipper's products, but not meet all its reasonable requirements. Evidence before the Commission was that rail service provides 4 to 6 days' transit time to destination points involved; that such service to the extent presently used was satisfactory to shipper only "because of lack of something better" (R., p. 121); that its economic need was for faster service because of fluctuating market price in transit of dairy products (R., p. 132). In their exceptions to the Examiner's report and their petition for reconsideration of the Division No. 5 order, the protesting rail carriers are revealed as not relying upon any adequacy of showing of rail service to meet the reasonable requirements of the supporting shipper. The contention then made by rail carriers and re-asserted by defendants here, is that the order of the Commission is sustained by substantial evidence by a showing that there is available motor carrier service to meet all the needs of such shipper. From what is above said, that does not appear as a fact in the record before us. In light of the foregoing and upon consideration of the record before us, we cannot say that the findings and order of the Commission are not supported by substantial evidence as to available transportation for shipments of "frozen poultry and frozen eggs." However, such findings and order are not supported by substantial evidence as to other "dairy products as classified in Appendix B to the report in Modification of Permits-Packing House Products, 46 M.C.C. 23," which is part of the authority requested and applied for by petitioners. The Division 5 order found that the two groups of commodities processed by the supporting shipper, that is "frozen eggs and dressed poultry" contrasted with "butter, cheese and shell and dried eggs," must be transported in separate vehicles because of different temperature requirements, and granted authority to petitioners in part, because of that transportation need of the supporting shipper and the limited transportation authority of Frozen Food Express. The whole Commission's findings and order are silent with respect thereto. There is nothing in the record before us which reveals that Frozen, or Frozen and Refrigerated as connecting carriers, have authority to or are able and willing to provide motor carrier service to the supporting shipper for all dairy products processed by it. The order of the Commission should be reversed and set aside and these proceedings remanded to the Commission for further proceedings consonant with the foregoing. It is so ordered.	{ "pile_set_name": "FreeLaw" }
81 So.2d 277 (1955) In re OPINION OF THE JUSTICES. No. 138. Supreme Court of Alabama. March 18, 1955. 279 Questions were propounded by the House of Representatives to the Justices of the Supreme Court, under Code 1940, Tit. 13, § 34, relating to the constitutionality of House Bill No. 39, levying a privilege license tax for Marion County upon electric or hydro-electric utilities operating in said county. Questions answered. Resolved, That the Justices of the Supreme Court, or a majority of them, are respectfully requested to give the House their written opinions on the following important constitutional questions which have arisen concerning the constitutionality of H. 39, a bill pending in the Legislature. H. 39 is in words and figures as follows: "A Bill To Be Entitled An Act "Relating to Marion County; levying a county privilege license tax on electric and hydro-electric public utilities, providing for the collection and enforcement of such tax and for the distribution and use of the proceeds thereof. "Be It Enacted By The Legislature Of Alabama: "Section 1. Each person, firm, or corporation operating an electric or hydro-electric public utility in Marion County shall pay a county privilege license tax in an amount equal to five per cent of the gross receipts of such business. The tax herein levied shall be in addition to all other taxes and licenses heretofore levied or imposed by law, and shall be due and payable in monthly installments on or before the 20th day of the month next succeeding the month in which the tax accrues. "Section 2. The books of every person, firm, or corporation operating an electric or hydro-electric public utility in Marion County shall be open to inspection by the duly authorized agents of Marion County selected or appointed for the purpose of aiding in the collection and enforcement of the tax imposed by this Act. The governing body of Marion County is hereby authorized and empowered to make such reasonable rules and regulations as may be necessary to enforce and collect the tax hereby imposed, and shall have full authority to employ such legal counsel, agents, and assistants as it deems necessary from time to time to enforce the collection of such tax or to effectuate the purposes of this Act. Such counsel, 280 agents, and assistants as may be employed shall be paid from the proceeds of the tax collected hereunder, or from any other funds available to the county governing body. "Section 3. Any person, firm or corporation that fails to pay the tax herein levied within the time required by this Act shall pay, in addition to the tax, a penalty of ten percent of the amount of the tax due, together with interest thereon at the rate of one-half of one per cent per month, or fraction thereof, from the date on which the tax herein levied became due and payable, such penalty and interest to be assessed and collected as a part of the tax. Provided, the governing body of Marion County may waive or remit the penalty or any portion thereof if a good and sufficient reason therefor is shown. "Section 4. The tax herein levied, together with interest and penalties imposed, shall be a lien upon the property of any person, firm, or corporation due to pay said taxes under the provisions of this Act, and all of the provisions of the revenue laws of the State of Alabama applying to or with reference to the enforcement of liens for license taxes due to the State of Alabama shall apply fully to the collection of the taxes levied herein, and the State Department of Revenue, when authorized by the governing body of Marion County, shall have the power and authority to collect and enforce said taxes. "Section 5. All revenue arising from the tax levied by this Act shall be used exclusively for the following purposes: 1) one-third (1/3) for the construction, maintenance, and operation of a county airport; 2) one-fourth (¼) for the Marion County Public Building Authority; 3) five-twelfths (5/12) for the general fund in the county treasury. In the event a special public body is created by law for the purpose of constructing, maintaining, and/or operating a county airport, the revenue herein allocated to the general fund of the county for a county airport shall be paid over to such public body. "Section 6. Distributors and sellers of electricity whose business activities are not subject to regulation by the Alabama Public Service Commission shall be exempt from payment of the tax levied by this Act. "Section 7. All laws or parts of laws in conflict with the provisions of this Act, whether general, local, or special, be and the same are hereby repealed to the extent of the conflict. "Section 8. This Act shall become effective upon the first day of the month following its passage and approval by the Governor." Question 1. Is the subject of H. 39 single and clearly expressed in the title as required by Section 45 of the Constitution? Question 2. Are all the provisions of H. 39 germane, cognate, and referable to the subject expressed in the title as required by Section 45 of the Constitution? Question 3. Do the provisions of Section 4 of H. 39 amending, extending, or conferring the provisions of the general law by reference contravene Section 45 of the Constitution? Question 4. If it is duly enacted, would H. 39 violate Section 217 of the Constitution? Question 5. If H. 39 is duly enacted, would the provisions of Section 6 thereof make the act violative of Section 104(25) of the Constitution? Question 6. If duly enacted, would H. 39 be violative of Section 105 of the Constitution, considering the fact that the subject matter of the act is prohibited by the provisions of the general law contained in Section 188 of Title 51, Code of Alabama (1940)? Question 7. Would the provisions of Section 6 of H. 39 if duly enacted, render the act discriminatory and repugnant to the 281 Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States? Resolved further, that the Clerk of the House be directed to transmit, forthwith, seven copies of this resolution to the Clerk of the Supreme Court. The House of Representatives State Capitol Montgomery, Alabama Dear Sirs: We acknowledge receipt of your communication of March 11, 1955, enclosing copy of House Resolution No. 11, wherein you request our opinion as to whether House Bill No. 39 is violative of certain provisions of the Constitution of this state and the Constitution of the United States. At the outset, we would like to make it clear that the views herein expressed are those of the individual justices of the court, made without the benefit of comprehensive briefs or oral argument, and such views are not to be considered as binding on the court. Questions 1 and 2 relate to that part of § 45 of the Constitution of this state which ordains that "each law shall contain but one subject, which shall be clearly expressed in its title," with certain exceptions of which H. 39 is not one. The purpose of the quoted provision was well stated in Ballentyne v. Wickersham, 75 Ala. 533, and has been so frequently restated and is so well understood as not to require detailed treatment here. It is sufficient to say that the title of an act need not be an index to it nor need it catalogue all powers intended to be bestowed. When the subject is expressed in the title in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it. Kendrick v. Boyd, 255 Ala. 53, 51 So.2d 694; Dearborn v. Johnson, 234 Ala. 84, 173 So. 864. So viewed, we think the subject of H. 39 is clearly expressed in its title and that its provisions are germane, cognate and referable to the subject expressed in the title. Therefore, we answer Questions 1 and 2 in the affirmative. Question 3 apparently is asked because of that part of § 45 of the Constitution which reads: " * * and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length." We have held that the quoted proviso does not apply to acts which are independent and complete within themselves, although they adopt by reference merely the provisions of other laws on the same subject. Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487, and cases cited. A new law may specify the procedure to be followed by adopting by reference the regulations of an existing statute. Hutto v. Walker County, 185 Ala. 505, 64 So. 313. Our answer to Question 3 is, No. H. 39 is unaffected by § 217 of the Constitution of this state providing that "the property of private corporations, associations, and individuals of this state shall forever be taxed at the same rate; * ." This provision relates only to direct property taxes. Newton v. City of Tuscaloosa, supra; Nachman v. State Tax Comm., 233 Ala. 628, 173 So. 25; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627. We answer Question 4 in the negative. Section 104, subsec. (25), of our State Constitution is made the basis of Question 5. In substance, this constitutional provision says that the legislature shall not pass a special, private, or local law exempting property from taxation or from levy or sale. It is our opinion that subsec. (25) has no application to a law which levies a tax but which also provides for certain exemptions from the tax so levied. We answer your Question 5 in the negative. We come now to a consideration of Question 6. Before writing to the specific question, we would like to call attention to certain general principles relating to the 282 authority of the legislature over taxation, as stated in the case of Newton v. City of Tuscaloosa, supra. We quote: "Except in so far as constitutionally proscribed, there is no limit to legislative authority over taxation. The great reserve of power over the subject rests in the State, acting through its legislature, and, out of this plenitude of power, unless restricted by organic law, its authority is absolute. It is `the depository of all authority on the subject,' except as so limited. "Counties have no inherent power of taxation. They are agencies or subdivisions of the State, created by law for the more efficient administration of government, and the authority of the county to tax is one derived from the legislature, and may be withheld, withdrawn, or modified (no contractual rights of third persons intervening to compel action). Edwards v. Williamson, 70 Ala. 145; Hare v. Kennerly, 83 Ala. 608, 3 So. 683; State v. Street, 117 Ala. 203, 23 So. 807; Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 388, 85 So. 774; Jefferson County v. City of Birmingham, 248 Ala. 319, 27 So.2d 584, 611; Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 124 So. 523; State [ex rel. Chilton County] v. Butler, 225 Ala. 191, 142 So. 531; Mills v. Court of Com'rs, 204 Ala. 40, 85 So. 564; State ex rel. Lott v. Brewer, 64 Ala. 287. "In line with this premise, our court has given sanction to legislative action empowering and requiring the levy and appropriation of a city or county tax for a special purpose. Slaughter v. Mobile County, 73 Ala. 134; State v. Street, supra; Keene v. Jefferson County, 135 Ala. 465, 33 So. 435. "In the above case of Slaughter v. Mobile County, it was indicated that, under circumstances, had the governing body of the county been recalcitrant in obeying the dictates of the act, mandamus might be employed to compel official action for compliance. 73 Ala. 139. "In exposing the fallacy of the contention that an act making a direct levy unlawfully invades the discretion of the county governing body or illegally preempts local authority, the cases point to the principle that the right of taxation is only vested in local authority by State permission and the courts will presume that the act had the sanction of the local taxpayers made known to, and acting through, their duly elected representatives. The court will presume that the act `was with the consent, and at the request of the taxpayers of the constituent body, made known through their representatives.' Slaughter v. Mobile County, supra, 73 Ala. at page 137; Keene v. Jefferson County, supra. "It is manifest then that out of this residuum of power, there being no organic prohibition to the contrary, the legislature was as powerful to make the local levy as to require one to be made; that `having the authority to delegate to that city [or county], as a political and governmental agent, the power to levy, for this purpose, a tax * * * they surely, as sovereign principal, could lawfully exercise the same power * * .' Hare v. Kennerly, supra, 83 Ala. 613, 3 So. 686." 251 Ala. 216-217, 36 So.2d 492. Section 105 of the Constitution of this state reads: "No special, private, or local law except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law." 283 We have said that § 105 does not forbid local legislation on subjects not prohibited by § 104, merely because a general law deals with the same matter. If, in the judgment of the legislature, local needs demand additional or supplemental laws substantially different from the general law, the legislature is not prohibited by § 105 from so enacting. Van Sandt v. Bell, 260 Ala. 556, 71 So.2d 529; Steadman v. Kelly, 250 Ala. 246, 34 So.2d 152, and cases cited; Johnson v. State ex rel. City of Birmingham, 245 Ala. 499, 17 So.2d 662; Talley v. Webster, 225 Ala. 384, 143 So. 555; Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523; State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373. H. 39 levies a tax in addition to that fixed by the general laws of this state. §§ 178 and 179, Title 51, Code 1940. In the case of Standard Oil Co. v. Limestone County, supra, this court upheld a local act authorizing Limestone County to levy a license tax on persons selling gasoline and motor fuel in addition to that provided by general law. We are of the opinion that our holding in Standard Oil Co. v. Limestone County, supra, is controlling of the question here considered. We have not overlooked the provisions of § 188, Title 51, Code 1940, which read: "No county shall levy a privilege or license tax on any business or occupation on which a privilege or license tax is levied by section 176-180, 182-186 of this title." If the provisions of § 188, Title 51, were not merely statutory, but were a part of the Constitution of this state, then of course we would have a different question. But we cannot read the provisions of § 188, supra, into § 105 and thereby get a different result from that reached by this court in Standard Oil Co. v. Limestone County, supra, which holding has been followed many times. The purpose of § 188, supra, is to avoid the effect of those provisions of § 831, Title 51, Code 1940, as amended, which levy licenses for the use and benefit of the counties in an amount equal to fifty percent of the amount levied for state purposes. Our answer to your Question 6 is No. We have said in several cases that "in levying a privilege or license tax as to trades, businesses or occupations, the legislature may not discriminate between members of the same class, and the tax must not be so exorbitant as to prohibit or unreasonably restrain or oppress legitimate and useful trades, businesses or occupations, that are not productive of disorder or injurious to the public. In applying the tax the classification or reclassification cannot be arbitrary, fanciful or capricious, but must have a substantial basis as distinguished from a mere fictitious or fanciful basis. Aside from these restrictions, the legislative power is unrestrained." State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843, 846; Adams v. Curry, 243 Ala. 90, 8 So.2d 578; State v. Downs, 240 Ala. 74, 197 So. 382; Republic Iron & Steel Co. v. State, 204 Ala. 469, 86 So. 65. Statutory discrimination between classes must be presumed to be relevant to a permissible legislative purpose and will not be deemed to be a denial of equal protection if any state of facts could be conceived which would support it. State v. Pure Oil Co., supra, and cases cited. In view of the rule just stated above, we cannot say in this advisory opinion, where no factual situations are presented, that the classification resulting from the provisions of § 6 makes H. 39 violative of either the due process or equal protection clause of the Fourteenth Amendment to the federal constitution. Consequently we are constrained to answer your Question 7 in the negative. Respectfully submitted, J. ED LIVINGSTON. THOMAS S. LAWSON. ROBERT TENNENT SIMPSON. DAVIS F. STAKELY. JOHN L. GOODWYN. PELHAM J. MERRILL.	{ "pile_set_name": "FreeLaw" }
Unable to extract the content from this file. Please try reading the original.	{ "pile_set_name": "FreeLaw" }
215 F.Supp.2d 635 (2002) Carla D. SULLIVAN, et al., v. Jan HERNANDEZ, et al. No. CIV. JFM-01-92. United States District Court, D. Maryland. August 1, 2002. 636 637 Ralph T. Byrd, Laytonsville, MD, for Harold Sullivan. Spencer K. Stephens, Law office of Spencer K. Stephens, Rockville, MD, for Jan Hernandez. Timothy G. Casey, Rockville, MD, William D. Burk, Law Office of Timothy G. Casey, for Susan Ronan, Long & Foster Real Estate, Inc. Martin J.A. Yeager, Poppleton Garrett and Polott PC, Rockville, MD, for Maureen L. Carroll, Ronald J. Carroll. MEMORANDUM MOTZ, District Judge. In this action Harold and Carla Sullivan allege that they were unlawfully discriminated against on the basis of race and disability in violation of the Fair Housing Act, 42 U.S.C. § 3601, et seq. ("FHA"), and the Civil Rights Act of 1866, 42 U.S.C. § 1981, et seq. ("section 1981") when their application for rental housing was rejected. They have brought suit against Jan Hernandez, Noah & Cummings Property Management, Inc. ("Noah & Cummings"), Susan Ronan, and Long and Foster Real Estate, Inc. ("Long and Foster"). Hernandez and Noah & Cummings joined Ronald and Maureen Carroll as third-party defendants. Discovery has been completed, and the defendants and the Carrolls have filed a joint motion for summary judgment. Plaintiffs have filed a cross-motion for summary judgment as to their claims for disability discrimination. For the reasons that follow, I will deny both motions. I. On December 31, 1998, the Sullivans, who are both African-American, met with Hernandez, an agent for Noah & Cummings, in order to discuss rental properties. After the Sullivans and Hernandez spoke, Hernandez took the Sullivans to view several properties. One property viewed by the Sullivans was 503 Curry Ford Road, owned by the Carrolls. After viewing this property, the Sullivans completed a rental application for it on December 31, 1998. Subsequently, Hernandez delivered the application to Susan Ronan, an agent for Long and Foster who listed the Carrolls' property. Ronan asserts that she did not receive the Sullivans' application until January 4, 1999. A few days before Ronan allegedly received the Sullivans' application, Ronan received a rental application for the Carrolls' property from Partha Bagchi. Long and Foster personnel then obtained background information on the Sullivans and Bagchi, including credit reports, information about the rental history of the applicants, and information about the applicants' employment. Specifically, the reports indicated that (1) Bagchi's salary was $90,000 compared to the Sullivans' collective salary of approximately $50,000, (2) the Sullivans' had a reserve in mutual funds and bank accounts totaling approximately $27,000, (3) there were two negative credit reports in Mrs. Sullivan's history, (4) Mrs. Sullivan had one prior bankruptcy, and (5) on one prior occasion Bagchi violated a rental lease by vacating 638 a premises more than six months prior to the lease's expiration without landlord approval. On January 8, 2002, Ronan read the reports to Mr. Carroll.[1] After listening to these reports, the Carrolls chose to rent the home to Bagchi. II. Courts have adapted the McDonnell-Douglas framework to housing discrimination claims. See, e.g., Mencer v. Princeton Square Apartments, 228 F.3d 631, 634 (6th Cir.2000). Thus, in order to survive summary judgment, the Sullivans must allege sufficient facts to establish a prima facie case of housing discrimination. To establish a prima facie case of housing discrimination, the plaintiff must prove that: (1) he or she is a member of a statutorily protected class; (2) he or she applied for and was qualified to rent or purchase certain property or housing; (3) he or she was rejected; and (4) the housing or rental property remained available thereafter. See Mencer 228 F.3d at 634-35; Soules v. U.S. Dept. of Housing and Urban Development, 967 F.2d 817, 822 (2d Cir.1992). The first three elements are undisputed. The Sullivans are African-American. Additionally, the Sullivans applied to rent the Carroll's property, were qualified to rent the property, and their application was rejected. The defendants and third-party defendants (to whom, for ease of presentation, I will collectively refer as "defendants") dispute the final element of a prima facie case. They contend that the Sullivans cannot establish that the rental property remained available because another application was accepted immediately after their application was rejected. That argument fails because it would allow a discriminating party to avoid a discrimination suit simply by accepting another application. The final element of a prima facie case does not require a plaintiff to establish that the property remained available indefinitely or for a long period. It simply requires a plaintiff to show that the property remained available immediately after the application in question was received. Here, the property was available when the Sullivans' application was received by the Carrolls and their real estate agent, Ronan, even though Bagchi's application was subsequently accepted. Thus, the Sullivans have established a prima facie case of housing discrimination. The burden shifts to the defendants to offer a legitimate, non-discriminatory explanation for selecting Bagchi's application. In an affidavit submitted in support of defendants' summary judgment motion, Mr. Carroll states that he selected Bagchi's application because he believed that: (1) Bagchi had a stronger credit history than the Sullivans; (2) Bagchi had a greater income than the Sullivans; (3) several creditors reported that Mrs. Sullivan had not paid her debts; and (4) Mrs. Sullivan had declared bankruptcy. (Carroll Aff. ¶ 7.) Although the Sullivans debate the merits of which applicant was better qualified financially, on its face Carroll's explanation is both reasonable and non-discriminatory. Thus, the burden shifts back to the Sullivans to establish that the Carrolls' explanation is pretextual. A plaintiff may establish pretext by demonstrating that "the employer's proffered explanation is unworthy of credence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 639 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). "Inconsistent post-hoc explanations" by an employer for its adverse action "is probative of pretext...." Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 647 (4th Cir.2002) (citing EEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir.2001)); see also Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996) ("An employer's changing rationale for making an adverse employment decision can be evidence of pretext."). In this case, the Carrolls initially offered an explanation for selecting Bagchi's application over the Sullivans which is inconsistent with the more recent affidavit Mr. Carroll has submitted. In their answers to interrogatories, they cited three factors that led to their decision: Bagchi's financial and "fully qualified" status, the fact that Ronan recommended Bagchi's application, and the fact that Bagchi's application was received first.[2] When confronted with potential disputes over two of these factors, the Carrolls retreated and dwindled their explanation down to one factor: Bagchi's financial status. A reasonable jury could find that the shift in the Carrolls' position was not incidental and raises a question concerning defendants' motivation. First, there is an inconsistency regarding Ronan's role in the decision to choose Bagchi's application. In their interrogatory answers, the Carrolls stated that they chose to enter into a lease with Mr. Bagchi because "Mr. Bagchi's application was recommended to us by our trusted real estate agent, Ms. Ronan." (See Pl.Ex. 4 at 5.) In contrast, in his current explanation, Mr. Carroll downplays Ronan's role in the decision. In fact, Mr. Carroll's recent affidavit, makes no reference to advice from Ronan. (See Def. Ex. 5 ¶¶ 6-8.) The reason for this change may be that defendants now realize that Ronan, but not the Carrolls, had reviewed the rental application, which included copies of the Sullivans' drivers' licenses. By detaching Ronan from the decision to choose Bagchi, the defendants are able to argue (and, in fact, do argue) that the decision to choose Bagchi could not have been discriminatory because Mr. Carroll made the decision without knowledge of the Sullivans' race. Second, there is an inconsistency regarding the timing of the applications. In their interrogatory answers, the Carrolls stated that they chose Bagchi's application because it "was the first that [they] received." (See Pl.Ex. 4 at 5.) Mr. Carroll's later affidavit, however, makes no reference to the order in which the applications were received. This is significant because the evidence is contradictory concerning when Ronan received the Sullivans' application. Ronan testified that she did not receive the application from Hernandez until January 4, 2002. (Ronan Dep. at 41-42, Pl.Ex. 10.) Hernandez, on the other hand, testified that she dropped the application off at Ronan's office on December 31, 2001. (Hernandez Dep. at 29-34, Pl. Ex. 9.) Again, an inconsistency is presented that could lead a reasonable jury to infer that the legitimate, nondiscriminatory explanation offered by the defendants is *640 pretextual. Accordingly, I will deny the defendants' motion for summary judgment. III. I will now briefly address the Sullivans' contention that they should be granted summary judgment claim for disability discrimination. The Carrolls rejected the Sullivans' application, in part, because of Carla Sullivan's credit history and prior bankruptcy. This negative credit history was allegedly due to Carla Sullivan's disability. The Sullivans argue that simply because Mr. Carroll knew that the Sullivans' income was from disability payments, the defendants must be held per se liable for housing discrimination. They cite no authority for this proposition, and I find it entirely unpersuasive. A separate order is being entered herewith. ORDER For the reasons stated in the accompanying memorandum, it is, this 1st day of August 2002 ORDERED that 1. Defendants'/Third-Party Defendants' motion for summary judgment is denied; and 2. Plaintiffs' motion for summary judgment is denied. NOTES [1] Due to the timing in processing, Ronan was only able to read an interim credit report for the Sullivans while the report for Bagchi was a final report. (Ronan Dep. at 94, Pl.Ex. 10.) [2] The Carrolls' answer to an interrogatory from third-party plaintiffs stated as follows: Ms. Ronan stated that the [Sullivan] application was not financially strong and that the [Sullivans] had previous financial problems.... Susan Ronan then recommended that the Carrolls select the first fully qualified applicant/application that she received, Mr. Bagchi. We chose to enter into a lease with Mr. Bagchi solely because a) Mr. Bagchi's application and offer to rent was the first that we received; b) Mr. Bagchi was fully qualified; c) Mr. Bagchi's application was recommended to us by our trusted real estate agent, Ms. Ronan; and d) Mr. Bagchi had a strong financial status and history. (See Pl.Ex. 4 at 5.)	{ "pile_set_name": "FreeLaw" }
7 F.3d 236 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff/Appelleev.Theodore Dean LUTTON, Defendant/Appellant No. 92-4030. United States Court of Appeals, Sixth Circuit. Aug. 27, 1993. Before GUY and NELSON, Circuit Judges, and HOOD, District Judge.* PER CURIAM: 1 Theodore Dean Lutton [Lutton] appeals his conviction in the United States District Court for the Northern District of Ohio of the crime proscribed by 18 U.S.C. § 924(c)(1). Finding no error, we AFFIRM. I. 2 On April 8, 1992, Lutton approached a friend, John Meyers, Jr. [Meyers], who owned Meyers Towing Service. Lutton first offered to sell Meyers some truck parts, and when Meyers declined to purchase them, Lutton then offered to sell him a quarter pound of marijuana. Meyers responded either with an offer to buy two pounds of marijuana or with an offer to introduce Lutton to a friend who would buy two pounds of marijuana. Lutton left a sample of marijuana, agreeing to return later. 3 Meyers then called the local authorities, who came and spoke with Meyers, taking the sample of marijuana left by Lutton. Paul Monroe and Doug Filippi, respectively the director and an agent of the Trumbill County Drug Task Force, arranged to meet Lutton at Meyers Towing Service to buy the two pounds of marijuana for $4,000.00. 4 When Monroe and Filippi arrived, Lutton was not yet present. Meyers requested that they move the transaction to another location. When Lutton arrived, they moved to a nearby parking lot. Lutton objected to the public nature of the lot but agreed to show Monroe and Filippi the marijuana before relocating again. He showed them three clear plastic bags of what appeared to be marijuana in a bucket of his truck bed. Lutton then returned to his truck to move to another location. 5 Having seen the marijuana, Monroe and Filippi signaled for the authorities surrounding the area to stop Lutton and arrest him. Lutton, either because he saw a gun and feared robbery or because he saw the authorities and feared arrest, fled in his truck. After being pursued for more than eight miles by law enforcement vehicles equipped with sirens and lights, Lutton surrendered. Monroe then located a loaded .38 caliber revolver on the floorboard of the driver's side of Lutton's truck. Previous to that time, the authorities did not know that Lutton was carrying a gun. Lutton claimed that he carried the gun because of a dispute that arose when Lutton shot a neighbor's dog and because of wild dogs that frequented Lutton's neighborhood. Nevertheless, the government indicted and obtained a conviction against Lutton under 18 U.S.C. § 924(c)(1), knowingly using or carrying a firearm "during and in relation" to a drug trafficking crime. Lutton appeals the § 924(c)(1) conviction, claiming the district court erred in failing to grant his motion for judgment of acquittal under Fed.R.Crim.P. 29. II. 6 Lutton argues that the gun in question was not used "during and in relation" to a drug trafficking offense. He states that he was unaware that the gun was in his truck at the time of his arrest. He testified that he had always owned guns and that he recently had a problem with a neighbor and multiple stray dogs, necessitating the gun. Lutton contends that at most, the United States showed that he possessed the gun, but not that the gun had any connection to the crime in question. 7 In support, Lutton cites United States v. Brown, 915 F.2d 219, 224 (6th Cir.1990), in which the court stated that § 924(c) "will not support conviction for mere possession of a firearm during the course of criminal conduct." Lutton further cites United States v. Stewart, 779 F.2d 538 (9th Cir.1985) as holding that § 924(c) was not intended to punish a defendant who inadvertently carries a gun during the commission of an unrelated crime. Lutton also cites similar cases from the Second, Eighth and Tenth Circuits. 8 The United States argues in response to Lutton that a reviewing court "examine[s] the totality of the circumstances surrounding the commission of the crime: the emboldened sallying forth, the execution of the transaction, the escape, and the likely response to contingencies that might have arisen during the commission of the crime." Brown, 915 F.2d at 226. The United States emphasizes that Lutton was fleeing from police when he was stopped, his vehicle searched, and the gun found on the driver's side. Furthermore, the United States points out that the defendant was the only occupant of the truck and the truck contained marijuana. 9 The United States also cites law from other circuits to support its argument. III. 10 Claims of insufficient evidence to support a conviction are reviewed to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir.1992) (citation omitted). 11 Although Lutton correctly states that "mere possession" of a gun is insufficient for a § 924(c) conviction, the United States need not offer direct evidence that the gun in question emboldened the defendant. Instead, the United States may offer circumstantial evidence that the defendant knew the gun was in the truck, had brought it to protect himself during the drug buy and that it lent him courage. See, e.g., United States v. Blankenship, 954 F.2d 1224, 1229 (6th Cir.), cert. denied, 113 S.Ct. 288 (1992). 12 The United States presented evidence that the gun was found on the driver's side floorboard of Lutton's truck, which could certainly lead to the inference that Lutton knew it was there. Furthermore, the gun was found after Lutton fled a drug transaction with the police in pursuit. In United States v. Henry, 878 F.2d 937, 944 (6th Cir.1989), the court stated, where "it reasonably appears that the firearm found on the premises controlled or owned by the defendant and in his actual or constructive possession are to be used to protect the drugs or otherwise to facilitate a drug transaction, then such firearms are used 'during and in relation to' a drug trafficking crime." Although Lutton testified that he had forgotten that the gun was in the truck and that he carried it only for self-defense against stray dogs, his testimony need not have been believed. The testimony was merely a defense, which the trier of fact is free to accept or reject. IV. 13 For the reasons stated above, we find no error in the district court's denial of Lutton's motion for judgment of acquittal, and the district court is therefore AFFIRMED. * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation	{ "pile_set_name": "FreeLaw" }
835 F.2d 1435 Lumbermen's Underwriting Alliancev.Grangeville Grange Supply, Inc. NO. 86-4250 United States Court of Appeals,Ninth Circuit. DEC 02, 1987 Appeal From: D.Idaho, 612 F.Supp. 1166 1 APPEAL DISMISSED.	{ "pile_set_name": "FreeLaw" }
02/17/2017 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 19, 2017 Session LINDA JANE PARIMORE v. GERALD DAVID PARIMORE Appeal from the Chancery Court for Tipton County No. 28658 Martha Brasfield, Chancellor ___________________________________ No. W2016-01188-COA-R3-CV ___________________________________ Husband appeals: (1) the denial of his Rule 60.02 motion on the basis of fraud; and (2) the grant of attorney’s fees to Wife. We affirm the trial court’s denial of Husband’s Rule 60.02 motion but reverse the grant of attorney’s fees to Wife. We also decline the award of damages to Wife on appeal. Affirmed in part, reversed in part, and remanded. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part; and Remanded. J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which BRANDON O. GIBSON, and KENNY ARMSTRONG, JJ., joined. William G. Hardwick, II and Kelly Pearson, Memphis, Tennessee, for the appellant, Gerald David Parimore. J. Barney Witherington, IV, Covington, Tennessee, for the appellee, Linda Jane Parimore. OPINION BACKGROUND Because of the limited evidence included in the record on appeal in this case, the facts are taken largely from the pleadings and the parties’ briefs. The parties, Plaintiff/Wife Linda Parimore (“Wife”) and Defendant/Husband Gerald Parimore (“Husband”), were divorced by final decree on June 30, 2011, which incorporated by reference a Marital Dissolution Agreement (“MDA”) disposing of certain marital property. The parties subsequently filed several contentious motions regarding the proper interpretation of the language under the MDA. Because of various disputes over the terms of the MDA, on November 23, 2015, the parties attended mediation regarding the division of marital property and entered into a handwritten settlement agreement. Therein, Husband agreed to pay Wife a “lump sum payment of $80,000[.00] within [fourteen] days from the effective date of th[e settlement agreement].” In addition, Wife agreed to “transfer, deed[,] and/or relinquish all rights in the joint timeshare in favor of [Husband].” The settlement agreement also provided that an order would be entered effectuating its terms within seven days from the date of execution. Husband decided shortly after the mediation to revoke his consent to the signed agreement. As a result, Husband’s then-attorney refused to sign the consent order effecting the terms of the mediated agreement. On December 3, 2015, Wife filed a motion to enforce the mediated agreement, alleging that Husband “terminated his attorney and informed [the attorney] that [Husband] would not honor the mediation agreement.” On January 6, 2016, Husband, through new counsel, filed a response, asserting, inter alia, that Wife may not enforce a consensual agreement by court order where the other party no longer agrees to the settlement. At the January 7, 2016 hearing on Wife’s motion to enforce the mediation agreement, Husband testified that he was coerced into signing the mediation agreement by his then-attorney and the mediator based on their statements that Husband would incur additional expenses, potentially expose himself to a contempt judgment, or potentially suffer a worse money judgment if he did not agree to settle.1 Husband further testified that his “retirement accounts were no one’s business but his own” and acknowledged that “he did not disclose the details of those accounts until shortly before mediation, and only did so because his [then-]attorney advised him that he could be held in contempt if he did not.” After the hearing, the trial court entered an order on January 11, 2016, finding that Husband was not “easily subject to coercion and would have no problem saying ‘no’ if confronted with an unsatisfactory proposal at mediation.” The trial court further found that the settlement agreement entered into by the parties constituted a “valid contract” and ordered Husband to pay the $80,000.00 lump sum pursuant to the agreement. On February 22, 2016, Husband filed a sworn motion for relief from judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure based on fraud and misrepresentation. Therein, Husband alleged that he agreed to pay Wife $80,000.00 in the settlement agreement “[b]ecause of the difference in the amount of the assets of [Wife] and [Husband], particularly in retirement assets.” The motion further alleged that 1 A transcript of the January 7, 2016 hearing is not included the record on appeal. Our recitation of Husband’s testimony is based on the trial court’s January 11, 2016 order. -2- after January 11, 2016, he retained an investigator and discovered that Wife did not disclose all assets prior to the mediation, particularly her military pension. Husband alleged that Wife only applied for this pension after the divorce, and this amount was not included in the settlement. As a result, Husband alleged that “the parties did not reach a fair and equitable division of the marital property” and sought to set aside the $80,000.00 judgment against him. Attached to Husband’s sworn motion are two letters, dated July 29, 2015, and September 29, 2015, from Wife’s counsel to Husband’s counsel disclosing her assets. Neither letter mentions Wife’s military pension. On April 22, 2016, Wife filed an answer essentially denying all material allegations relating to fraud. On the same day, Wife also filed a motion for contempt2 and other relief, asserting, inter alia, Husband “continues to pay exorbitant sums to attorneys and investigators in a frivolous effort to delay payment to [Wife]” in violation of a court order. Wife also asserted that it was “impossible that [Husband] was unaware that [Wife] would receive a military pension because the parties met in the military reserves and did not retire until they reached their [twenty] year pension entitlements.” As a result, Wife asked that Husband be found in contempt and ordered to pay her attorney’s fees. Attached to Wife’s motion is her counsel’s affidavit, asserting that he and Husband’s then-attorney “discussed the parties’ military pensions” and “agreed that the pensions would roughly offset one another.” As a result, counsel contended that the pensions were not used in calculating the division of marital assets. On May 4, 2016, Husband filed a response to Wife’s motion for contempt and other relief. Therein, Husband “admit[ted] that the attorneys might have discussed the matter of the military pensions” but that “the matter was never discussed with him.” After a May 5, 2016 hearing on the outstanding motions, the trial court entered the following order on May 9, 2016: Upon arguments of counsel, the pleadings, and the record as a whole, the [trial court] finds that the manner in which the parties’ military pensions were calculated in determining the division of marital property is not a proper basis upon which to grant relief to [Husband]. The [trial court finds that [Husband] is only before the [trial court] in a further attempt to stall payment of the $80,000.00 that he was ordered to pay. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that the $80,055.00 held by the [trial court] shall be released to [Wife] by check made payable to [Wife] and her attorney, to satisfy the judgment against [Husband] and that [Husband] is required to pay [Wife’s] attorney’s fees, totaling $1800.00, incident to the motions heard on May 5, 2016. 2 The motion is unclear as to whether Wife was seeking civil or criminal contempt, as discussed infra. -3- [Husband] shall pay the $1800.00 into the Chancery Clerk within ten (10) days of the entry of this Order. This appeal followed. ISSUES Husband raises the following issues for our review, which we have slightly restated: 1. Did the trial court err in denying Husband’s motion for relief from judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure based on an incorrect valuation of the pensions that were marital property? 2. Did the trial court err in granting Wife’s motion for sanctions against Husband and awarding the Wife’s attorney fees against Husband? Wife, additionally, raises the following issue: 3. Whether Wife is entitled to damages for a frivolous appeal? DISCUSSION We begin first with Husband’s contention that the trial court erred in denying him relief pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure. Rule 60.02 provides, in pertinent part: On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order or proceeding for the following reasons: . . . (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.] Our Supreme Court has discussed the standard applicable to a Rule 60.02 motion challenging a trial court’s final judgment: Tennessee law is clear that the disposition of motions under Rule 60.02 is best left to the discretion of the trial judge. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Banks v. Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991); McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). The standard of review on appeal is whether the trial court abused its discretion in granting or denying relief. This deferential standard “reflects an awareness that the decision being reviewed involved a choice among -4- several acceptable alternatives,” and thus “envisions a less rigorous review of the lower court’s decision and a decreased likelihood that the decision will be reversed on appeal.” Lee Med[.], Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). A trial court abuses its discretion when it causes an injustice by applying an incorrect legal standard, reaching an illogical decision, or by resolving the case “on a clearly erroneous assessment of the evidence.” Id. The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Indeed, when reviewing a discretionary decision by the trial court, the “appellate courts should begin with the presumption that the decision is correct and should review the evidence in the light most favorable to the decision.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999); see also Keisling v. Keisling, 196 S.W.3d 703, 726 (Tenn. Ct. App. 2005). Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010). In addition: [W]e have characterized relief under Rule 60.02 as an “exceptional remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn. 1992), “designed to strike a proper balance between the competing principles of finality and justice,” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976). Rule 60.02 provides an “escape valve,” Thompson v. Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990), that “should not be easily opened.” Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991). We have reversed relief granted under Rule 60.02 where the judgment was “not oppressive or onerous.” Killion v. Tenn. Dep’t of Human Servs., 845 S.W.2d 212, 214 (Tenn. 1992). “[R]elief under Rule 60.02 is not meant to be used in every case in which the circumstances of a party change after the entry of a judgment or order, nor by a party who is merely dissatisfied with a particular outcome.” Henderson, 318 S.W.3d at 336. A party seeking relief under Rule 60.02 must substantiate the request with clear and convincing evidence. McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997). “Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). “In other words, the evidence must be such that the truth of the facts asserted [is] ‘highly probable.’” Goff v. Elmo Greer & Sons Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009) (quoting Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005)). In general, “the bar for -5- attaining relief is set very high and the burden borne by the movant is heavy.” Johnson v. Johnson, 37 S.W.3d 892, 895 n.2 (Tenn. 2001). Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 127–28 (Tenn. 2013) (alteration in original). In his motion in the trial court, Husband relied on Rule 60.02(2)—fraud, misrepresentation, and misconduct—to support his request for relief. The quanta of proof required to show fraud, misrepresentation, or other conduct sufficient to warrant relief pursuant to Rule 60.02(2), as stated above, is “clear and convincing[.]” Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn. Ct. App. 1990) (quoting Leeson v. Chernau, 734 S.W.2d 634, 638 (Tenn. Ct. App. 1987)). Husband argues that Wife in this case withheld information regarding her military pension prior to the party’s mediation; as a result “the values of the pensions were not calculated properly in the property settlement.” In contrast, Wife asserts that the parties’ attorneys previously discussed the military pensions and agreed not to include the pensions in any asset calculation. The trial court, while denying Husband’s motion, gave no explanation for its decision nor squarely addressed the allegations in his Rule 60.02 motion. We concede that the express language of Rule 60.02 places no affirmative duty on the trial court to make findings of fact or conclusions of law in disposing of a Rule 60.02 motion. However, this Court has previously indicated that, with respect to a Rule 60.02 motion, we are “unable to adequately review” a trial court’s discretionary decision and provide the appropriate amount of deference to that decision when the trial court fails to make appropriate findings of fact and conclusions of law. Spigner v. Spigner, No. E2013- 02696-COA-R3-CV, 2014 WL 6882280, at 6 (Tenn. Ct. App. Dec. 8, 2014) (quoting Rogin v. Rogin, No. W2012-01983-COA-R3-CV, 2013 WL 3486955, at 7 (Tenn. Ct. App. 2013)). Accordingly, while we will go on to consider whether Husband met his burden in this case, we note that the better method of disposing of a Rule 60.02 motion is to include appropriate findings of fact and conclusions of law so that the decision may be given the appropriate deference. At the outset, we note that our review is severely hampered by the limited evidence contained in the record. The record on appeal does not contain any transcripts or Statements of Evidence from any of the multiple hearings that took place in this case. Instead, the “evidence” in the record before us contains only: (1) Husband’s sworn motion asserting that Wife failed to disclose her military pension; (2) Wife’s counsel’s affidavit asserting that he discussed with Husband’s then-attorney the parties’ pensions, and both attorneys agreed the pensions should not be included in any calculation; and (3) Husband’s concession that the attorneys “might have discussed” the pensions but that he -6- himself was not aware of this discussion in his answer to Wife’s motion for contempt and other relief. From our review of the record, we conclude that Husband failed to meet his burden to prove, by clear and convincing evidence, that he was harmed by “an intentional contrivance . . . to keep [him] and the Court in ignorance of the real facts touching the matters in litigation.” Duncan, 789 S.W.2d 563 (quoting Leeson, 734 S .W.2d at 638). Husband has presented no evidence supporting his allegation that the parties’ pensions had never been discussed. In light of Wife’s attorney’s uncontroverted affidavit asserting that the issue of the parties’ pensions had been previously disclosed and discussed, Husband’s sworn statement that he himself was not aware of her pension is unavailing. Indeed, Husband does not deny that his then-attorney might have had knowledge of Wife’s military pension. Even assuming arguendo that the then-attorney never imparted his knowledge of Wife’s pension to Husband, a “person generally is held to know what his attorney knows and should communicate to him, and the fact that the attorney has not actually communicated his knowledge to the client is immaterial.” Smith v. Petkoff, 919 S.W.2d 595, 597–98 (Tenn. Ct. App. 1995) (quoting 7A C.J.S. Attorney and Client § 182 (1980)). “Once it has been established that the attorney obtained the relevant knowledge during the course of representing the client, ‘the constructive notice thereof to the client is conclusive, and cannot be rebutted by showing that the attorney did not in fact impart the information so acquired.’” Boote v. Shivers, 198 S.W.3d 732, 742 (Tenn. Ct. App. 2005) (Smith, 919 S.W.2d at 597–98). Based on the scant evidence in the record, we conclude that Husband has not met his burden to prove clearly and convincingly the existence of any fraud in this case to warrant reversal of the trial court’s adjudication of this issue. Accordingly, we affirm the trial court’s denial of Husband’s Rule 60.02 motion. We next address whether the trial court erred in awarding Wife attorney’s fees in the proceedings below. Under Tennessee law, courts follow the “American Rule,” which generally provides that litigants must pay their own attorney’s fees unless a party can demonstrate the existence of a specific contractual agreement or statutory basis to support an award of attorney’s fees. House v. Estate of Edmondson, 245 S.W.3d 372, 377 (Tenn. 2008) (citing John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998)). From our review of the record, neither the MDA nor the mediated agreement contains any provision providing for attorney’s fees. We will therefore proceed to determine whether a statutory basis exists to support the award of attorney’s fees to Wife in this case. As is relevant to this appeal, one statutory basis for the award of attorney’s fees is contained in Tennessee Code Annotated section 29-9-102, allowing Tennessee courts “to punish for acts of contempt.” Reed v. Hamilton, 39 S.W.3d 115, 117 (Tenn. Ct. App. 2000); see Black v. Blount, 938 S.W.2d 394, 397–98 (Tenn. 1996) (stating that Tennessee Code Annotated section 29-9-102 was enacted to “limit and define the conduct -7- punishable by contempt” in order to curb potential abuses). “A contempt [finding] may be either civil in nature or criminal in nature.” Reed, 39 S.W.3d at 118. Civil contempt proceedings are remedial in nature and are brought by private parties to enforce their rights under an order that has been violated, whereas criminal contempt proceedings are designed to “vindicate the court’s authority and maintain the integrity of its orders and thus is generally punitive rather than remedial in nature.” Id. Among the conduct that Tennessee courts have the authority to punish as contempt is “[t]he willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts.” Tenn. Code Ann. § 29-9-102(3). “Thus, to find contempt under this statute, a court must find the misbehavior, disobedience, resistance, or interference to be wilful.” Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). “[A] trial court’s use of its contempt power is discretionary[.]” Outdoor Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007) (citing Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 377 S.W.2d 908, 912 (Tenn. 1964)). As a result, this Court “will review a trial court’s contempt citation using the abuse of discretion standard.” Id. (citing Powell v. Powell, 124 S.W.3d 100, 108 (Tenn. Ct. App. 2003)). “A trial court abuses its discretion only when it ‘applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). “Furthermore, the award of attorneys’ fees based upon a finding of contempt is also reviewed under the less stringent abuse of discretion standard and we will not modify a punishment imposed for contempt unless the complaining party can show that the trial court abused its discretion.” Outdoor Mgmt., LLC, 249 S.W.3d at 377 (citations omitted). Not all contempt findings, however, allow the trial court to award attorney’s fees. Specifically, we have held that a trial court may not award attorney’s fees in the context of a criminal contempt proceeding. See Watts v. Watts, No. M2015-01216-COA-R3-CV, 2016 WL 3346547, at 11 (Tenn. Ct. App. June 8, 2016) (“[A]ttorney’s fees are not within the statutory limits to criminal contempt under Tenn[essee] Code Ann[otated section] 29-9-103.”). On the other hand, the trial court is authorized in civil contempt proceedings to award attorney’s fees upon a finding of contempt. See Reed, 39 S.W.3d at 119 (construing the “payment of damages” provision under Tennessee Code Annotated section 29-9-105 to mean that attorney’s fees are allowed in civil contempt proceedings). Here, it is not clear from the record whether civil contempt or criminal contempt was pursued in the court below. In the event that criminal contempt was at issue, the trial court is not permitted to award Wife attorney’s fees in the criminal contempt proceeding. See Watts, 2016 WL 3346547, at 11. Even assuming that civil contempt was at issue, see Reed, 39 S.W.3d at 119, the record is utterly devoid of any order actually finding Husband’s conduct to be willful or finding him in contempt, nor is there any indication in the record that an evidentiary hearing was ever held on Wife’s contempt petition. Indeed, the trial court’s exiguous order contains only the following finding, in relevant part: -8- “[The trial court] finds that [Husband] is only before the Court in a further attempt to stall payment of the $80,000.00 that he was ordered to pay.” As previously discussed, however, where the trial court fails to make appropriate findings of fact and conclusions of law, we are “unable to adequately review” a trial court’s decision and provide the appropriate amount of deference to that decision. Spigner, 2014 WL 6882280, at *6. In the absence of both an evidentiary hearing on Wife’s contempt petition and specific findings supporting the award of attorney’s fees, we reverse this portion of the trial court’s judgment. Finally, Wife seeks an award for damages on appeal. The decision to award damages based on the filing of a frivolous appeal rests solely in the discretion of this Court. Whalum v. Marshall, 224 S.W.3d 169, 180 (Tenn. Ct. App. 2006). “Imposing a penalty for a frivolous appeal is a remedy which is to be used only in obvious cases of frivolity and should not be asserted lightly or granted unless clearly applicable, which is rare.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 342 (Tenn. 2010). An appeal is frivolous when it has “no reasonable chance of success,” Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999), or is “so utterly devoid of merit as to justify the imposition of a penalty.” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.3d 202, 205 (Tenn. 1978). Because Husband prevailed on at least one issue on appeal, we decline to award Wife any damages in this appeal. CONCLUSION For the forgoing reasons, the judgment of the Tipton County Chancery Court is affirmed with respect to its denial of Husband’s Rule 60.02 motion based on fraud and misrepresentation and reversed with respect to its award of attorney’s fees to Wife. We further deny Wife’s request for damages on appeal. Costs of this appeal are taxed one- half to Gerald Parimore, and his surety, and one-half to Linda Parimore, for all of which execution may issue if necessary. _________________________________ J. STEVEN STAFFORD, JUDGE -9-	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ JOSEPH F. CLIPSE, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent ______________________ 2016-1209 ______________________ Petition for review of the Merit Systems Protection Board in No. AT-0752-14-0178-I-1. ______________________ Decided: April 7, 2016 ______________________ JOSEPH F. CLIPSE, Okatie, SC, pro se. SONIA MARIE ORFIELD, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., PATRICIA M. MCCARTHY. ______________________ Before PROST, Chief Judge, MOORE and STOLL, Circuit Judges. 2 CLIPSE v. DHS PER CURIAM. Joseph F. Clipse appeals the final decision of the Mer- it Systems Protection Board (“Board”), which denied Mr. Clipse’s petition for review and affirmed the administra- tive judge’s initial decision. In the initial decision, the administrative judge affirmed the Department of Home- land Security’s action removing Mr. Clipse from his position as Lead Law Enforcement Specialist. For the reasons discussed below, we affirm. BACKGROUND Mr. Clipse began working at the Department of Homeland Security (“DHS” or “agency”) on February 19, 2006 as a Law Enforcement Specialist at the Federal Law Enforcement Training Centers (“FLETC”). At all times relevant to this appeal, Mr. Clipse served as a Lead Instructor in the Driver and Marine Division. On July 22, 2013, Mr. Clipse was served a Notice of Proposed Removal (Proposal) and supporting evidence citing two charges: (1) failure to follow a written directive, containing six specifications, and (2) lack of candor, containing three specifications. On November 5, 2013, the agency sustained both charges and Mr. Clipse’s re- moval became final. The charges arose from an investiga- tion by DHS into numerous allegations that Mr. Clipse had fraternized with three female students and a female intern between 2007 and 2013 in violation of agency policy. Mr. Clipse appealed his removal to the Board, deny- ing many of the allegations and arguing that removal was inappropriate. Mr. Clipse also argued that his due pro- cess rights were violated by the lack of specificity in the underlying specifications. In an initial decision, the administrative judge sustained both charges, found that removal was an appropriate penalty, and concluded that Mr. Clipse had failed to prove that his due process rights CLIPSE v. DHS 3 were violated. Clipse v. Dep’t of Homeland Sec., AT-0752- 14-0178-I-1 (M.S.P.B Apr. 13, 2015) (“Initial Decision”). Mr. Clipse timely filed a petition for review of the initial decision, and the Board issued a final decision denying the petition and affirming the initial decision. Clipse v. Dep’t of Homeland Sec., No. AT-0752-14-0178-I-1, 2015 WL 5718599 (M.S.P.B. Sept. 30, 2015) (“Board Decision”). Mr. Clipse now timely appeals to us. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION Our review of the Board’s decision is limited by stat- ute. We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without proce- dures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Mr. Clipse’s appeal is primarily focused on what he contends are erroneous credibility determinations made by the administrative judge. He argues that, in every instance where there was conflicting testimony, the administrative judge improperly credited the testimony of the witnesses against him over his testimony. However, as we have stated, “[t]he credibility determinations of an administrative judge are virtually unreviewable on ap- peal.” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). Indeed, as an appellate court, we cannot set aside the administrative judge’s credibility determina- tion unless we find it to be “inherently improbable or discredited by undisputed fact.” Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997). Here, Mr. Clipse has not made that showing. For example, Mr. Clipse argues that one of the stu- dents is not a credible witness because she changed her story during the investigation and did not provide suffi- 4 CLIPSE v. DHS cient details or documentary evidence to corroborate her position. The administrative judge, however, noted that the student did not independently file a complaint against Mr. Clipse, and, instead, only reported Mr. Clipse’s behav- ior when she was approached by investigators from the Office of Professional Responsibility. Indeed, the admin- istrative judge recognized that the student had no reason to fabricate allegations against Mr. Clipse, given that her testimony could potentially put her own law enforcement career at risk. Moreover, the administrative judge found the student’s testimony to be “straightforward about admittedly embarrassing facts.” Initial Decision, slip op. at 20. Finally, the administrative judge found that the student’s testimony was corroborated by the testimony of another witness, who the administrative judge also found credible, in part because, unlike Mr. Clipse, the witness had no motive to lie. On the other hand, the administrative judge found Mr. Clipse’s story to be “so inherently improbable it renders his testimony not credible.” Id. As to Mr. Clipse’s demeanor, the administrative judge stated that she was “unimpressed” and “came away with the impression that he would change his story as necessary to further his position.” Id. at 22. The administrative judge considered documentary evidence that Mr. Clipse asserted supported his testimony—including a hotel receipt that he relied on to show that he had been with his brother and not with the student on a given weekend—but found that, on balance, the student’s version of events was more likely to be true than Mr. Clipse’s version. Id. at 22–23. Similarly, with respect to the other three women, the administrative judge properly and thoroughly considered the necessary factors in making the credibility determina- tions, and found that among the multiple conflicting testimonies, the testimony of the witnesses testifying against Mr. Clipse were more credible than that of Mr. CLIPSE v. DHS 5 Clipse. Because the administrative judge’s determina- tions are neither inherently improbable nor discredited by undisputed fact, we, like the Board, give them deference. Mr. Clipse also attempts to cast doubt on the testimo- ny of the female intern by claiming that the agency tam- pered with evidence. Mr. Clipse argues that the agency presented an incomplete and inaccurate text log of mes- sages between him and the female intern, and that many of the messages which would have supported his story were altered or deleted. Even if that were true—which the administrative judge found was unlikely—the admin- istrative judge only considered the text messages that were not in contention and found that they “involved playful flirtatious banter and were certainly not training related.” Initial Decision, slip op. at 26, 28. Finally, Mr. Clipse argues that his due process rights were violated because some of the specifications underly- ing the charges were impermissibly vague. However, as the administrative judge noted, “[a]ll of the specifications provide a great deal of specific information [that Mr. Clipse] could have addressed. Further, the agency pro- duced a voluminous amount of investigatory documents and [reports of investigation] upon which it relied.” Id. at 35–36. We agree with the administrative judge and the Board and thus conclude that Mr. Clipse did not prove that his due process rights were violated. For the foregoing reasons, we affirm the Board’s deci- sion. AFFIRMED COSTS Each party shall bear their own costs.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS OF VIRGINIA Present: Judges Humphreys, Petty and AtLee UNPUBLISHED Argued at Norfolk, Virginia ANDREW SIMON MANZANO, A/K/A ANDREW WILLIAMS MEMORANDUM OPINION* BY v. Record No. 0936-16-1 JUDGE RICHARD Y. ATLEE, JR. JULY 25, 2017 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge Curtis T. Brown for appellant. Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. A jury in the Circuit Court of the City of Norfolk (“trial court”) convicted appellant Andrew Simon Manzano of possession of an imitation controlled substance with the intent to sell, give, or distribute. The jury recommended, and the trial court imposed, a sentence of eighteen months in prison. On appeal, Manzano argues the trial court erred by refusing to strike three jurors who stated during voir dire that they believed the testimony of a police officer was inherently more credible than that of non-police witnesses. For the following reasons, we disagree and affirm. I. BACKGROUND The only issue on appeal concerns one question asked of the venire during voir dire: [D]o you give police officers’ testimony the same weight that you would an ordinary witness, or would you give the police officers a * Pursuant to Code § 17.1-413, this opinion is not designated for publication. little bit more because they’re police officers and they’re here to uphold the law? Does anybody feel that a police officer’s testimony should be given a little bit more weight than somebody off the street because they’re police officers – they’re the ones with a badge? Seven potential jurors answered affirmatively.1 Three were struck for cause, Manzano exercised his peremptory challenges on two others, and two served on the jury.2 Manzano challenges the trial court’s denial of his motion to strike three of these persons for cause: Sherman, Renn, and Greenspan,3 arguing that the Commonwealth’s attempts to rehabilitate them were inadequate and they should have been struck for cause. We describe and analyze each of their responses individually. II. ANALYSIS “A trial judge has broad discretion and control over how voir dire is conducted and the procedure for seating a jury.” Holloman v. Commonwealth, 65 Va. App. 147, 164, 775 S.E.2d 434, 443 (2015) (quoting Brooks v. Commonwealth, 24 Va. App. 523, 529, 484 S.E.2d 127, 129 (1997)). As such, an appellate court must give deference to the circuit court’s determination whether to exclude a prospective juror because that court was able to see and hear each member of the venire respond to questions posed. The circuit court is in a superior position to determine whether a 1 Earlier in voir dire, the Commonwealth asked whether anyone “would believe [Norfolk police officer] testimony more simply because they’re police officers?” The record indicates that no persons on the venire responded, including those who later responded affirmatively to the defense attorney’s question. 2 Manzano does not challenge the trial court’s refusal to strike one of the jurors, implicitly acknowledging that she was qualified to serve. 3 Neither Sherman nor Greenspan served on the jury because Manzano used his peremptory strikes on them; however, “[i]n Virginia, a defendant in a criminal case ‘is entitled to a panel of jurors free from exception before exercising peremptory challenges.’” DeLeon v. Commonwealth, 38 Va. App. 409, 412, 565 S.E.2d 326, 327 (2002) (quoting Cressell v. Commonwealth, 32 Va. App. 744, 755, 531 S.E.2d 1, 6 (2000)). -2- prospective juror’s responses during voir dire indicate that the juror would be prevented from or impaired in performing the duties of a juror as required by the court’s instructions and the juror’s oath. Simmons v. Commonwealth, 63 Va. App. 69, 74-75, 754 S.E.2d 545, 548 (2014) (quoting Garcia v. Commonwealth, 60 Va. App. 262, 268, 726 S.E.2d 359, 362 (2012)). The trial court is best situated to make this determination because it “has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand, the trial court’s exercise of judicial discretion in deciding challenges for cause will be not disturbed on appeal, unless manifest error appears in the record.” A manifest error occurs when the record shows that a prospective juror cannot or will not lay aside his or her preconceived opinion. Taylor v. Commonwealth, 67 Va. App. 448, 455-56, 796 S.E.2d 859, 863 (2017) (quoting Jackson v. Commonwealth, 267 Va. 178, 191, 590 S.E.2d 520, 527 (2004)). Although we review the trial court’s determination deferentially, “[a]ny reasonable doubt as to a juror’s qualifications must be resolved in favor of the accused.” DeLeon, 38 Va. App. at 412, 565 S.E.2d at 327 (quoting Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976)). A. Sherman When asked about his affirmative response to the question regarding weighing police officer credibility, Sherman had the following exchange with trial counsel (with Mr. Brown asking questions on behalf of the defense, and Mr. Fatehi on behalf of the Commonwealth): MR. BROWN: And you’d indicated that you’d give them more weight because they’re police officers designed to protect the law. But you’re saying that if the Judge instructs you to treat them all the same, you will treat them all the same? MR. SHERMAN: Absolutely. MR. BROWN: But if you weren’t instructed, you’re saying that you would give them more weight? -3- MR. SHERMAN: Yeah…. .... MR. FATEHI: Are you willing to set aside any of your personal feelings about this, and listen to the testimony of the police officers in this case, and judge their credibility -- judge their believability on their own merits? MR. SHERMAN: Sure. MR. FATEHI: Will you follow any of the Judge’s instructions regarding the credibility of witnesses? MR. SHERMAN: Yes These responses clearly indicate that Sherman was both willing and able to serve as an impartial fact-finder. Moreover, early in the voir dire, he stated, without prompting, that “if the instructions tell me that everybody’s testimony is weighed equally, that’s what I will do.” He never wavered from that stance. This is analogous to the facts in Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871 (1990), where the Supreme Court affirmed the denial of a defense motion to strike a juror, Moore, for cause: When asked whether he felt “that the testimony of a police officer carries more weight . . . than that of an ordinary citizen,” Moore said: “That is a tough call.” Continuing, he stated: Police officers have always been in a high esteem and you always think that they are the ones that are being able to tell the truth more than an average citizen. But then, again, it is a preconceived notion that I have probably had for the majority of my life. Moore then replied in the negative when asked whether “that preconceived notion [would] interfere with [his] ability to weigh the evidence and render a fair and impartial decision . . . or would [he] automatically give more weight to the testimony of a police officer.” Id. at 255, 389 S.E.2d at 877 (alterations in original). The Court held: -4- Whether [Moore] should have been excluded for cause was a matter within the sound discretion of the trial court. . . . [Moore’s] ultimate attitude on the subject of the testimony of police officers was essentially neutral. His responses to the various questions propounded to him, while perhaps not displaying the grasp of a legal technician, satisfactorily indicated that he not only stood indifferent in the cause but also possessed sufficient intelligence to be able to afford the defendant a fair and impartial trial. Id. (alterations in original) (quoting Waye v. Commonwealth, 219 Va. 683, 690, 251 S.E.2d 202, 206-07 (1979)). This is exactly what took place here. In light of Sherman’s responses, the trial court did not err in refusing to exclude him from the venire. B. Renn When asked about his response to the question regarding police credibility, Renn described his previous positive experiences with law enforcement. He explained that he would be more inclined to believe police testimony because they are “supposed to be the third party. Yes, I would -- over a friend or a relative or somebody else who may be biased, I think I would trust that opinion of the police officer.” Although Manzano frames this statement as Renn revealing an intractable preference for police testimony, there is an important distinction: he states only that he would credit police testimony over specific types of witnesses who have a close connection to the defendant. Renn did not state that he believes all police testimony is more credible than that of any non-police witness. Rather, his answer acknowledged a common-sense reality that some witnesses’ testimony may be tainted due to their relationship to the defendant. This does not indicate that he possesses a preconceived opinion or preference that would prevent him from serving as an impartial juror. Renn’s other responses similarly failed to reveal any bias that would have prevented him from performing the duties of a juror. He responded affirmatively when asked if it is “fair to say that there are good and bad police officers?” and agreed that he could “judge any nonpolice witnesses on their merits and on their credibility.” When asked again by the defense “But if -5- there’s any doubt as to the police officer and an ordinary witness, you’re going to favor the police because of your experience with the police officers?,” he responded “All things being equal, I probably would.” Renn’s positive view of the police based on his prior experience does not per se disqualify him from serving as an impartial juror. See Stewart v. Commonwealth, 245 Va. 222, 235, 427 S.E.2d 394, 403 (1993) (affirming refusal to strike wife of a local police officer in a “small community,” who expressed “willingness to accept a police officer’s statement ‘in most cases’”). Although his responses evince a belief that generally, law enforcement testimony is likely to be impartial, they do not indicate that he was unwilling or unable to individually evaluate the credibility of either police or non-police witnesses. As such, we cannot say that the trial court abused its broad discretion in refusing to strike Renn for cause. C. Greenspan Manzano challenges the refusal to strike one additional juror who initially indicated that she may give more weight to police testimony. During voir dire, the following exchange took place: MR. BROWN: You indicated that you would give a police officer’s testimony more weight than you would an ordinary witness. MS. GREENSPAN: Uh-huh. MR. BROWN: Why is that? MS. GREENSPAN: Well, don’t we have to have some standard? I mean, why do we have police? I don’t believe all the things that happen today in this world, but you have to have some standard. If you can’t believe the police officers, who are you going to believe? That’s my answer to you. Now, I’m not saying I wouldn’t think about it twice. MR. BROWN: But you would come into the case giving a police officer’s testimony more weight than you would someone else? -6- MS. GREENSPAN: I think that’s a loaded question. I really do. Society has made a police officer -- supposed to carry out the law. If you’re asking me -- are you asking me if I wouldn’t? MR. BROWN: No. I’m not asking if you wouldn’t; I’m just asking when you come to court when you come to the case, would you give a police officer’s testimony more weight than you would an ordinary witness because they’re police officers and designed to protect – MS. GREENSPAN: I think at first I would. If there are holes in the testimony, I wouldn’t. But I have to have some standard to start with. .... MR. BROWN: I just want to make sure that this is clear. Your statement was that, at the beginning of the case, you’d give the police officer more weight, but you’d just have to listen to the testimony – MS. GREENSPAN: Right. “In conducting our review, we consider the juror[’s] entire voir dire, not merely isolated statements.” Simmons, 63 Va. App. at 74, 754 S.E.2d at 548 (citing Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999)). Although Greenspan’s responses “perhaps [did] not display[ ] the grasp of a legal technician,” they “satisfactorily indicated that [s]he not only stood indifferent in the cause but also possessed sufficient intelligence to be able to afford the defendant a fair and impartial trial.” Smith, 239 Va. at 255, 389 S.E.2d at 877 (quoting Waye, 219 Va. at 690, 251 S.E.2d at 206-07). Her responses reflect the reality that a fact-finder first hears the Commonwealth’s case against a defendant, which generally includes police testimony. She appears to acknowledge that this testimony may or may not be adequate to prove the accused’s guilt, and did not indicate that she would ultimately credit police testimony over that of other witnesses. The trial court did not err in refusing to strike Greenspan for cause. -7- III. CONCLUSION For the foregoing reasons, the trial court did not err in finding that these venirepersons were able to serve as impartial jurors, and thus there was no manifest error in denying Manzano’s motions to strike them for cause. Affirmed. -8-	{ "pile_set_name": "FreeLaw" }
732 F.Supp. 1034 (1990) Terry SCOTT, David E. Ray, Leigh Gardner Ray, David R. Prinsze, Susan M. Kennedy, and Employee Leasing Associates Inc., a California corporation, Plaintiffs, v. SNELLING AND SNELLING, INC., a Pennsylvania corporation, Defendant. No. C-89-2595 EFL ARB. United States District Court, N.D. California. March 9, 1990. 1035 1036 David J. Butler, Brownstein, Zeidman & Schomer, Washington, D.C., Charles G. Miller, Bartko, Welsh, Tarrant & Miller, San Francisco, Cal., for defendant. Ignazio J. Ruvolo, Bronson, Bronson & McKinnon, San Francisco, Cal., for plaintiffs. ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT LYNCH, District Judge. This case involves a dispute arising from the termination of a number of virtually identical franchise agreements for the operation of temporary personnel service (TPS) agencies under the Snelling and Snelling name between the plaintiffs and defendant,[1] and the subsequent formation of competing businesses by the plaintiffs. Plaintiffs brought this action upon their termination of the agreements seeking damages for breach of contract, rescission and a declaratory judgment. Snelling counterclaimed, alleging breach of contract and unfair competition; it seeks damages and injunctive relief. The parties have made cross-motions for partial summary judgment on the single issue of whether the covenants restricting competition in the franchise agreements are enforceable against the plaintiffs. I. FACTUAL BACKGROUND The undisputed facts which gave rise to this case are as follows. In late 1985, plaintiffs David E. Ray, Leigh Gardner Ray and Terry Scott entered into a franchise agreement with Snelling to operate a TPS in Walnut Creek, California, under the Snelling name. The agreement provided, inter alia, for the support services such as training and operating procedure manuals to be provided by Snelling to the plaintiffs, for the terms by which Snelling licensed its proprietary marks to plaintiffs, and for the financial contributions which plaintiffs were required to make to Snelling in return for the license to operate the TPS franchise. The agreement also included the provisions for termination by plaintiffs[2] and the covenant by plaintiffs not to compete with another Snelling TPS franchisee in their former franchise area for two years after termination[3] which are the subjects 1037 of the cross-motions for summary judgment. Soon after the completion of the agreement for a Walnut Creek franchise, the same plaintiffs entered into a substantially similar agreement to operate a Snelling TPS franchise in Pleasanton, California. Plaintiff David R. Prinsze also entered into a substantially similar agreement to operate a Snelling TPS franchise in San Jose, California, on May 29, 1987. On July 28, 1988, plaintiff Susan Kennedy joined with Prinsze to form plaintiff Employee Leasing Associates, which took over operation of the San Jose franchise. Following some difficulties in the franchise relationship between the parties, plaintiffs sent a letter on July 28, 1989 informing Snelling of the filing of the original complaint in this action as well as their intention to terminate their franchise agreements immediately. The letter also informed Snelling of the plaintiffs' intention to form competing TPS businesses at the locations from which they formerly operated their Snelling TPS franchises. After plaintiffs filed an amended complaint, Snelling filed a motion seeking a preliminary injunction prohibiting the operation of the competing TPS agencies by the plaintiffs pursuant to the restrictive covenants in the franchise agreements. On October 5, 1990, the Court granted in part Snelling's motion for a preliminary injunction, requiring plaintiffs to cease use of the Snelling name in competing businesses, to provide Snelling with lists identifying customers and employees, to assign all telephone numbers previously identified as Snelling numbers to Snelling and to allow Snelling to inspect plaintiffs' financial records. The Court did not, however, enjoin the plaintiffs from continuing to operate their competing TPS agencies. The plaintiffs have substantially complied with the Court's preliminary injunction order. Now they have brought this partial summary judgment motion seeking a ruling that the restrictive covenant in the franchise agreements is not enforceable. Snelling seeks a contrary ruling that the covenants are enforceable by cross-motion for partial summary judgment. II. STANDARD FOR SUMMARY JUDGMENT Federal Rule of Civil Procedure 56(c) provides that a motion for summary judgment shall be granted if the moving party establishes the absence of any genuine issue of material fact which would preclude a ruling by the Court on the motion as a matter of law. Such a showing can be made by an affirmative demonstration in affidavits or declarations by a moving party who bears the burden of proof on the controverted issue at trial. However, in a circumstance where the non-moving party with the burden of proof fails to come forward with any evidence which would create a genuine issue of material fact, summary judgment for the moving party is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Cal. Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.1987). In addition, a determination of the legal effect of the 1038 plain language of a contract where the intention of the parties is not in dispute is a question of law well suited to a grant of summary judgment. Edison v. Reliable Ins. Co., 664 F.2d 1130, 1131 (9th Cir.1981). Here, the validity of the restrictive covenant in the franchise agreements is a question of law. Thus, the allocation of burdens of proof is irrelevant, for the most part, to the decision whether to grant summary judgment on the issue. This statement should be qualified by the recognition that, under California law,[4] a covenant restraining competition will be enforced when the subsequent competition constitutes unfair competition, such as the unauthorized use of trade secrets or confidential information. See, e.g., American Paper & Packaging Products, Inc. v. Kirgan, 183 Cal.App.3d 1318, 228 Cal.Rptr. 713 (1986); Moss, Adams & Co. v. Shilling, 179 Cal.App.3d 124, 224 Cal.Rptr. 456 (1986). The determination of whether a particular type of information is confidential or a trade secret would generally be a question of fact, with the party asserting the existence of a trade secret bearing the burden of proof. Tele-Count Engineers, Inc. v. Pacific Tel. & Tel. Co., 168 Cal. App.3d 455, 463, 214 Cal.Rptr. 276 (1985). As such, as discussed below, Snelling would bear the burden of proof on this issue at trial as the party asserting the existence of a trade secret. III. DISCUSSION Plaintiffs make essentially two arguments in support of their position that the covenant restraining competition in the franchise agreements is unenforceable. First, they contend that Snelling is collaterally estopped from claiming that the covenant is valid after having lost on the issue in a previous arbitration based on a similar contract to which Snelling was a party. In the alternative, they assert that California law should govern the determination of the validity of the covenant not to compete and that under California law the covenant is invalid. Each of these contentions will be considered in turn. A. COLLATERAL ESTOPPEL On October 30, 1989, an arbitrator declared that a covenant restraining competition in a franchise agreement between Snelling and another party was unenforceable.[5] Plaintiff asserts that this arbitration result compels this Court similarly to declare the covenant between Snelling and the plaintiffs unenforceable. This is essentially an assertion of the doctrine of non-mutual defensive collateral estoppel, wherein a litigant not a party to a prior case seeks to preclude relitigation of an issue by its current opponent who was a party to the prior case and lost on the very issue which the opponent seeks to relitigate in the current action. Blonder-Tongue Laboratories v. Univ. of Illinois, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). In order to prevail on an assertion of non-mutual defensive collateral estoppel, plaintiffs must show that: 1) the issue decided in a prior adjudication is identical with that presented in the action in question; and 2) there was a final judgment on the merits; and 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. Clemmer v. Hartford Ins. Co., 22 Cal.3d 865, 874, 151 Cal.Rptr. 285, 587 P.2d 1098 (1978) (emphasis in original).[6] Under this 1039 standard, the plaintiffs' assertion of collateral estoppel must fail for two reasons. First, the issues in the two cases do not appear to be identical. Review of the documents submitted by plaintiffs in support of their assertion of collateral estoppel reveals that the franchise agreement at issue in the prior arbitration related to a franchise for a permanent employment agency operation rather than a TPS franchise agreement at issue here. This distinction is important because, as will be discussed below, the law of trade secrets in California relating to these different types of businesses varies. Thus, if California law applies to the determination of validity of the covenant restraining competition, the results of the determination may be different in the permanent employment agency context than in the TPS context. Secondly, under California law, an arbitrator's award does not constitute a "final judgment" which would enable a party to invoke the doctrine of collateral estoppel until a judgment has been entered by a court and is no longer reviewable. State Farm Mutual Auto. Ins. Co. v. Super. Ct., 211 Cal.App.3d 5, 16, 259 Cal.Rptr. 50 (1989); Sartor v. Super. Ct., 136 Cal. App.3d 322, 328, 187 Cal.Rptr. 247 (1982). Here, the award of the arbitrator invalidating the covenant has apparently not been confirmed by either a federal or state court. Hence, it does not constitute a final judgment for collateral estoppel purposes. Accordingly, for these two reasons, the Court holds that Snelling is not barred from relitigating the validity of the restrictive covenant simply as a result of the earlier arbitration. B. ENFORCEABILITY OF THE COVENANT UNDER APPLICABLE LAW Plaintiffs' next contention is that the covenant restraining competition in the franchise agreements is unenforceable as a matter of law. In support of this contention they rely on California law despite a clause in the agreements which states that Pennsylvania law shall govern the interpretation of the contract. Considering the widely different approaches which the two states take to non-competition covenants, the outcome of the determination of the appropriate law to apply to the interpretation of the contract is largely dispositive of the issue of the enforceability of the covenant. Thus, the Court first will discuss the choice of law issue, and then proceed to analyze the enforceability of the covenant under the appropriate law. 1. Choice of Law Governing Interpretation of the Covenant As a federal district court sitting in diversity jurisdiction, the Court must decide which state's law applies to the substantive legal issues raised by the dispute in the absence of superseding federal law. This choice of law question is normally determined by reference to the choice of law rules of the state in which the district court sits. General Accident Ins. Co. v. Namesnik, 790 F.2d 1397, 1398 (9th Cir.1986). The Court will therefore apply California choice of law principles to this case. Generally speaking, under California choice of law principles, a provision in a contract dictating the law by which the contract should be interpreted is given deference. However, California law will not give force to a choice of law clause where the contract contains a provision which violates a "strong California public policy." Frame v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 20 Cal.App.3d 668, 673, 97 Cal.Rptr. 811 (1971). California Business and Professions Code section 16600,[7] which states that "[e]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void," has been held by the California courts to represent a strong public 1040 policy which would override the choice of law provision in the contract at least with regard to the restrictive covenant. Muggill v. Reuben H. Donnelley Corp., 62 Cal.2d 239, 242, 42 Cal.Rptr. 107, 398 P.2d 147 (1965); Frame, 20 Cal.App.3d at 673, 97 Cal.Rptr. 811. See also Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1338 (9th Cir.1980). Thus, whether section 16600 applies to a covenant restricting competition in a franchise agreement is the crucial question in deciding the choice of law issue. Snelling contends that this is a question of first impression under California law. This contention is not entirely correct. At least one California case has considered section 16600 in connection with franchise agreements and has relied on it, in conjunction with state anti-trust statutes, to invalidate a covenant restricting competition by a franchisee. See LaFortune v. Ebie, 26 Cal.App.3d 72, 102 Cal.Rptr. 588 (1972). However, even accepting arguendo Snelling's position that application of section 16600 to a franchise agreement is a question of first impression under California law, the Court finds that the California courts would apply section 16600 to a franchise agreement containing a covenant restraining competition. The Court bases this conclusion on well-settled principles of statutory interpretation.[8] It is beyond dispute that in matters of statutory interpretation, a court should look to the language of the statute itself, attributing to the words used in the statutory language their plain and ordinary meaning. Only when there is a "clearly expressed legislative intention to the contrary" should a court interpret a statute in a manner inconsistent with the ordinary meaning of its language. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). In the Court's view, the import of the statutory language of section 16600 is clear. Section 16600 says, "Every contract by which anyone is restrained from engaging in a lawful profession, trade, or business is to that extent void" (emphasis added). A simple reading of this statute, giving the words their ordinary meaning, demonstrates that the California state legislature intended section 16600 to apply to any sort of contract which contains a covenant restraining competition. Despite this, however, Snelling urges a different interpretation on the Court. Snelling cites the California Franchise Relations Act, Cal.Bus. and Prof.Code § 20000 et seq., for the proposition that it manifests a clear legislative intent to exempt franchises from the broad sweep of the language of section 16600. Specifically, Snelling argues that section 20025 of the Franchise Relations Act governing non-renewal of franchise agreements specifically prohibits a franchisor from enforcing a covenant restraining competition, while section 20020 governing termination of franchise relationships includes no such prohibition. From this, Snelling surmises, the Court should conclude that the legislature clearly intended to exempt terminated franchise agreements (such as the agreements in this case) from section 16600, because it would have been surplusage to have included the prohibitory language in section 20025 if section 16600 already achieved the prohibition of covenants not to compete. This is argument by negative implication and is not an appropriate method of statutory interpretation. Rather than adopt a contorted interpretation of crystal clear statutory language as that urged upon the Court by Snelling, the Court prefers 1041 to follow the more traditional methodology of statutory interpretation, accepting that the legislature means what it says: Every contract which contains a covenant restraining any person from engaging in a lawful business is to that extent void, including franchise agreements. Also in support of its position that section 16600 should not apply to the franchise agreements in this case, Snelling contends that a franchise agreement is akin to a sale of goodwill in a business, which is exempted from section 16600 by a narrowly drawn statutory exception in Business and Professions Code section 16601. Snelling cites no authority for this proposition and the Court has found none. Snelling simply analogizes a franchise relationship to a sale of goodwill in a business since one of the major elements of consideration provided by the franchisor to the franchisee is the goodwill which attaches to the franchisor's name. The Court does not strictly agree with this analogy. While it is true that the use of the franchisor's goodwill is one of the major benefits received by the franchisee from the franchise relationship, the franchisor simply does not sell its goodwill to the franchisee.[9] Since the opportunity to utilize the goodwill by the franchisee is revocable, it is more like a lease than a sale of the goodwill; the franchisor agrees that the franchisee may benefit from the goodwill for a specified period of time, and for a specified price. Indeed, considering the periodic payments normally required of franchisees by franchisors during the course of the franchise relationship, the franchisor continues to benefit from its goodwill throughout the franchise relationship, something which would not normally continue after a sale.[10] All of the foregoing distinctions between franchise agreements and sales of goodwill in a business exist in this case. Thus, in light of the broad language of section 16600 and in the absence of contrary authority, the Court cannot hold that the franchise agreements at issue in this case constitute sales of goodwill in a business under California law as set forth in section 16601. Therefore, the Court holds that it should apply California law to the question of the enforceability of the covenants restricting competition in the franchise agreements in this case despite the choice of law provision nominating Pennsylvania law as controlling interpretation of the agreements. This is so under California choice of law principles because of the strong public policy of California embodied in section 16600, the lack of an applicable statutory exception to section 16600, and the broadly inclusive language of the statute. 2. Application of California Law to the Restrictive Covenant Having determined that California law should be applied to the substantive elements of this dispute, the next question becomes whether California courts would, as a matter of law, permit the enforcement of the covenant restraining competition in the franchise agreements. Despite the broad language of section 16600, Snelling makes two contentions in support of its assertion that the covenants should be enforceable. First, Snelling argues that other states with statutes substantially similar to section 16600 apply a "rule of reason" to the interpretation of covenants restraining competition in the franchise agreement context, applying a test which balances the franchisor's legitimate interests in enforcing 1042 the restrictive covenant versus the policy reasons which underlie the prohibitory statutes. Secondly, Snelling contends that California law recognizes a judicially created exception to section 16600 when the ex-franchisee engages in unfair competition against its former franchisor. Under either of these standards, Snelling argues, its restrictive covenants should be enforced against the plaintiffs. The Court disagrees for the following reasons. a. California Courts Do Not Apply a "Rule of Reason" Under Section 16600 Snelling is incorrect in its contention that the California courts apply a "rule of reason" to covenants restraining competition. It is true that a number of states have abandoned the common law prohibition of covenants restraining competition in the employment agreement context, adopting instead a balancing approach even in the face of statutes like section 16600. See, e.g., Gafnea v. Pasquale Food Co., Inc., 454 So.2d 1366 (Ala.1984). It may even be correct to go so far as to say that this "rule of reason" represents a majority rule among jurisdictions which have considered the question.[11] However, the California courts have been clear in their expression that section 16600 represents a strong public policy of the state which should not be diluted by judicial fiat. Rather, the California courts have repeatedly held that section 16600 should be interpreted as broadly as its language reads. Muggill, 62 Cal.2d 239, 242, 42 Cal.Rptr. 107, 398 P.2d 147 (1965); Bosley Medical Group v. Abramson, 161 Cal. App.3d 284, 288, 207 Cal.Rptr. 477 (1984). The only possible such limitation which has been recognized by the California courts is that only restrictive covenants which prohibit an individual from pursuing an "entire business, trade, or profession...." are invalid under section 16600. Boughton v. Socony Mobil Oil Co., 231 Cal.App.2d 188, 192, 41 Cal.Rptr. 714 (1964) (emphasis in original); see also Campbell v. Board of Trustees of Stanford Univ., 817 F.2d 499 (9th Cir.1987). Nevertheless, even recognizing this limitation of section 16600, a California Court of Appeals case more recent than Boughton has considered, and invalidated, a covenant in an independent contractor's agreement which limited a doctor's right to compete in a specified geographical area after termination of the agreement. Bosley Medical Group, 161 Cal.App.3d at 287, 207 Cal.Rptr. 477. That case provides strong support for the position that the covenant involved here would not be enforced by the California courts because the restrictive covenant in Bosley Medical Group, like the covenant here, contained strict geographical and temporal limitations on the right to compete of the party against whom the covenant was sought to be enforced.[12] Thus, the Court holds that California does not follow a "rule of reason" to be applied in the interpretation of covenants restraining competition under section 16600. Furthermore, while the California courts may, in some circumstances apply a "rule of reason" to only partial restrictions 1043 on competition, they have not recognized geographical and temporal restrictions on competition to be merely partial restrictions. Rather, the California courts do not give force to such restrictions. This Court, applying California law, cannot do so in this case either. b. The Judicially Created Exception to Section 16600 Where a Competitor Utilizes Trade Secrets Snelling's other theory which would support enforcement of the covenant restraining competition in the franchise agreements under California law is more compelling. This second theory relies on a case including a comprehensive review of California law on the question of enforceability of covenants restraining competition which concludes that if a former employee uses a former employer's trade secrets or otherwise commits unfair competition, California courts recognize a judicially created exception to section 16600 and will enforce a restrictive covenant in such a case. Hollingsworth Solderless Terminal, 622 F.2d at 1338. Even though the opinion in that case authored by Judge (now Justice) Kennedy has been largely superseded in its discussion of what constitutes a trade secret under California law by the Uniform Trade Secrets Act (UTSA), Cal.Civ.Code § 3426, et seq., the general principle enunciated in that case, and relied on by Snelling, appears to remain a proper statement of the law in California. See, e.g., American Paper & Packaging Products, Inc. v. Kirgan, 183 Cal.App.3d 1318, 228 Cal.Rptr. 713 (1986); Moss, Adams & Co. v. Shilling, 179 Cal.App.3d 124, 224 Cal.Rptr. 456 (1986). Thus, in order to survive plaintiffs' motion for summary judgment by relying on this judicially created exception to section 16600, Snelling must demonstrate the presence of a genuine issue of material fact as to the existence and use of trade secrets by the plaintiffs in competition with Snelling. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). This is so because Snelling would have the burden of proof on this issue at trial. Tele-Count Engineers, Inc. v. Pacific Tel. & Tel. Co., 168 Cal.App.3d 455, 463, 214 Cal.Rptr. 276 (1985). While it is true that the existence of a trade secret would normally constitute a factual question, the Court notes that some types of information may not be a trade secret as a matter of law, Moss, Adams & Co., 179 Cal.App.3d at 130, 224 Cal.Rptr. 456, and that summary judgment may be appropriate in cases where a party has failed to meet its burden of proof for the purposes of a summary judgment motion by generating through evidentiary submissions a genuine issue of material fact. Cal. Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987). Snelling's first argument that the plaintiffs have improperly used its trade secrets relies on language in the franchise agreements that its business forms, temporary employee lists and customer lists constitute trade secrets. However, it is well settled under California law that an employer cannot restrain a former employee from conduct other than that which would constitute unfair competition or use of trade secrets subject to judicial protection. American Paper & Packaging, 183 Cal. App.3d at 1325, 228 Cal.Rptr. 713; Moss, Adams & Co., 179 Cal.App.3d at 130, 224 Cal.Rptr. 456. Thus, Snelling's argument in reliance on contractual language begs the question: before the Court can enforce the covenant restraining competition in the franchise agreements on the basis of use of trade secrets, it must determine for itself whether the information allegedly used constitutes a trade secret subject to judicial protection at all. As such, Snelling's next argument is that customer lists are trade secrets in the employment agency context under Business and Professions Code section 16607. While this would appear to be true on its face, Business and Professions Code section 9902 specifically exempts temporary personnel agencies such as the TPS franchises in question here from its definition 1044 of employment agencies.[13] Furthermore, the literal terms of section 16607 apply to employer/employee relationships, not to franchise agreements such as those at issue here.[14] For these two reasons, then, section 16607 cannot be interpreted to define explicitly the customer lists in this case as trade secrets. Absent conclusive contractual or statutory support, Snelling must rely on the body of California law which defines trade secrets to make the showing necessary to survive plaintiffs' motion for summary judgment. Effective January 1, 1985, California adopted the UTSA, Cal.Civ. Code § 3426, et seq., which was intended by the legislature to codify the results of the "better-reasoned cases" concerning the definition of trade secrets and their misappropriation. American Paper & Packaging, 183 Cal.App.3d at 1324, 228 Cal.Rptr. 713. The USTA has, for the most part, superseded prior California common law on trade secret issues. Id. Snelling's contention that its customer lists, temporary employee lists and business forms and procedures are trade secrets must therefore be tested under the standards set forth by the UTSA. Section 3426.1(d) of the UTSA defines a trade secret as information which: (1) [d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Under the first prong of this test, California courts have held that information which is readily obtainable through public sources such as directories do not derive the independent economic value necessary to the existence of a trade secret. Moss, Adams & Co., 179 Cal.App.3d at 130, 224 Cal.Rptr. 456. In addition, information which is not exclusive or is generally in use by good faith competitors also cannot be classified as a trade secret. American Paper & Packaging, 183 Cal.App.3d at 1326, 228 Cal.Rptr. 713. With this standard in mind, the Court now analyzes each of Snelling's contentions regarding the existence and use of its "trade secrets." The assertion that the customer lists constitute a trade secret in the context of a TPS can be dismissed as a matter of law without much difficulty. As indicated in the plaintiffs' evidentiary submissions, and uncontroverted by Snelling, the typical customers of a TPS business are large and small companies of all sorts, easily discoverable through public sources. Plaintiffs have also demonstrated for the purposes of their motion that they developed the customer lists through their own efforts, personal knowledge and business contacts. In such circumstances, the California courts have repeatedly held that a customer list does not constitute a trade secret for the purposes of enforcing a covenant restraining competition because "[e]quity has no power to compel a man who changes employers to wipe clean the slate of his memory." Moss, Adams & 1045 Co., 179 Cal.App.3d at 129, 224 Cal.Rptr. 456 (quoting Avocado Sales Co. v. Wyse, 122 Cal.App. 627, 634, 10 P.2d 485 (1932)); see also Aetna Bldg. Maintenance Co. v. West, 39 Cal.2d 198, 246 P.2d 11 (1952); American Paper & Packaging, 183 Cal. App.3d at 1325, 228 Cal.Rptr. 713. The Court therefore holds that the customer lists at issue in this case do not constitute trade secrets as a matter of law. Snelling also argues that its business forms and procedures which it provided to the plaintiffs are trade secrets, the continued use of which constitutes unfair competition meriting the enforcement of the restrictive covenant.[15] Snelling produced no evidence in support of this contention, however, which would generate a triable issue of fact. In contrast, the plaintiffs have produced declarations that demonstrate that the forms and procedures are widely used in the industry. Under the prevailing summary judgment standard set forth in Celotex, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Snelling has not carried its burden necessary to survive summary judgment on the issue whether its business forms and procedures "derive[] independent economic value," Cal.Civ.Code § 3426.1(d)(1), since such non-exclusivity of information mitigates strongly against finding the existence of a trade secret. American Paper & Packaging, 183 Cal. App.3d at 1326, 228 Cal.Rptr. 713. These same principles dictate a finding that the temporary employee lists are also not trade secrets. Although the employee lists differ from the customer lists in that they may derive some independent economic value by containing special information such as the employees' skills and preferences which cannot be developed through resort to public sources, the plaintiffs again have demonstrated that they developed these lists through their own efforts. More importantly, the plaintiffs have adduced evidence that these lists are non-exclusive and that the temporary employees typically list themselves with a number of TPS agencies. This evidence was simply not rebutted in the record by Snelling. Summary judgment on the issue is therefore proper. Thus, Snelling's contention that the covenant restraining competition at issue in this case should be enforced because of the utilization of its trade secrets in accordance with the judicially recognized exception to section 16600 is without merit. This is not to say that the information asserted to be trade secrets here will not be so designated in all circumstances. Rather the Court simply finds that Snelling failed to create an evidentiary record on the various sorts of information sufficient to create a genuine issue of material fact. IV. CONCLUSION Since the plaintiffs have prevailed on the choice of law issue and demonstrated that the covenant restraining competition in their franchise agreements with Snelling do not fit into any of the statutorily or judicially created exceptions to section 16600, the Court hereby grants summary judgment to plaintiffs, denies Snelling's cross-motion for summary judgment and holds that the restrictive covenants in this case are not enforceable against the plaintiffs. Even though the parties agreed to include such a covenant in their agreements, enforcement of such covenants would violate a strong public policy in the state of California of encouraging free competition in business endeavors. As the California Supreme Court said long ago: Equity will to the fullest extent protect the property rights of employers in their trade secrets and otherwise, but public policy and natural justice require that equity should ... be solicitous for the inherent right in all people, not fettered by negative covenants upon their part to the contrary to follow any of the common occupations of life.... A former employee has the right to engage in a competitive business for himself and to enter 1046 into competition with his former employer, even for the business of those who had formerly been the customers of his former employer, provided such competition if fairly and legally conducted. Continental Car-Na-Var Corp. v. Moseley, 24 Cal.2d 104, 110, 148 P.2d 9 (1944). All the Court decides here is that the competition entered into by the plaintiffs with Snelling is within the law's expression of California's strong public policy. The issue of damages arising from the plaintiffs' termination of the franchise agreement still remains. But the Court will not enjoin plaintiffs from competition in a business which the law of California holds is their right. NOTES [1] Defendant will hereinafter be referred to as Snelling. [2] Section 12 of the franchise agreement reads, in pertinent part: 12(a) Voluntary Termination LICENSEE may voluntarily terminate this Agreement by giving written notice to Snelling. The effective date of termination by LICENSEE shall be the later of the date stated in LICENSEE's notice and the 180th day after SNELLING receives LICENSEE's notice. .... 12(e) LICENSEE's Termination Duties If this Agreement terminates for any reason, LICENSEE shall: .... 12(e)(5) stop operating a temporary personnel service, except as permitted by section 13. [3] Section 13 of the franchise agreement reads, in pertinent part: 13. COMPETITION AND RULES AGAINST UNREASONABLE COMPETITION .... 13(b) Competition After Termination If this Agreement is terminated for any reason ... LICENSEE may compete with the Franchise System only according to the following rules: .... 13(b)(3) During the transition period [two years after termination pursuant to section 12(a) ], LICENSEE may compete without restriction by this Agreement only if: 13(b)(3)(A) LICENSEE's competing business is located beyond a radius of 10 statute miles from the most recent Office Location of LICENSEE's TPS; 13(b)(3)(B) Prior to competing, LICENSEE provides SNELLING with a typewritten list identifying the names, addresses, and telephone numbers of all Clients that purchased services from LICENSEE's TPS during the two years before the termination or that placed an order for such services during the 90 days before termination, and LICENSEE enforces a policy of not operating in the temporary personnel service business to directly or indirectly contact, work with, or service any such Clients; 13(b)(3)(C) Prior to competing, LICENSEE provides SNELLING with a typewritten list identifying the names, addresses, and telephone numbers of all Workers that it employed, listed, or contacted while operating LICENSEE's TPS or otherwise through the use of SNELLING's name or Proprietary Marks during the two years before the termination, and LICENSEE enforces a policy of not directly or indirectly employing, listing, or contacting, any such Workers. Section 13(g) of the Agreement provides for liquidated damages for Snelling in the event of violation of these provisions by the licensee, while section 12(j) enables Snelling to seek an injunction to enforce these provisions. [4] See infra Part III(B) of this opinion which discusses choice of law principles and concludes that California law governs the determination of validity of the covenant not to compete in the franchise agreements. [5] This arbitrator's award in the previous case, Snelling and Snelling v. Stone, was unpublished. It is attached as an exhibit to the plaintiffs' papers supporting their motion for summary judgment. [6] Snelling correctly points out that, because the substantive law to be used in determining the validity of the restrictive covenant is California law, see infra Part III(B) of this opinion, California's law of collateral estoppel should apply in the context of this motion as well. St. Paul Fire & Marine Ins. Co. v. Weiner, 606 F.2d 864, 868 (9th Cir.1979). However, regardless of which law applies, it is clear that the requirements set forth in Clemmer are minimum requirements of due process of law which must be coextensive under federal and state law. Clemmer, 22 Cal.3d at 874, 151 Cal.Rptr. 285, 587 P.2d 1098. [7] California Business and Professions Code section 16600 will hereinafter be referred to as "section 16600." All other statutory references unless otherwise noted likewise refer to the California Business and Professions Code. [8] Snelling's position that section 16600 should not apply in this case as a matter of statutory interpretation is, to say the least, disingenuous. On the one hand, Snelling argues that the broadly phrased language of section 16600 does not apply to franchise agreements. On the other hand, Snelling argues that a great number of states have applied substantially similar statutes to franchise agreements, albeit with a result more favorable to Snelling's ultimate position than the result which plaintiffs urge here. See, e.g., Gafnea v. Pasquale Food Co., Inc., 454 So.2d 1366 (Ala.1984); Wilkinson v. Manpower, Inc., 531 F.2d 712 (5th Cir.1976); Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976). The Court views the application of statutes similar to section 16600 to the franchise context by other state courts as further support for its holding here. [9] This is abundantly clear in this case after an examination of the franchise agreements, which unequivocally state in section 4(d): "All goodwill associated with the [Snelling TPS] system and the Proprietary Marks shall belong exclusively to SNELLING." Furthermore, California courts hold that goodwill can be owned only by the owner of the business to which the goodwill attaches. Golden State Linen Service, Inc. v. Vidalin, 69 Cal.App.3d 1, 10, 137 Cal.Rptr. 807 (1977). In light of the above contractual provision, then, the position that a franchisor sells its goodwill by entering into a franchise agreement while retaining its ownership of the goodwill is patently untenable. [10] Section 9(d) of the franchise agreements in this case require the plaintiffs to pay to Snelling, after an initial franchise fee, 5% of their monthly net receipts. [11] But see Bayly, Martin & Fay, Inc. v. Pickard, 780 P.2d 1168 (Okl.1989). In Bayly, a case cited by Snelling in support of its position, the Oklahoma court explicitly recognized in interpreting a statute similar to section 16600 that California courts do not follow the "majority" rule of reason. Id. at n. 9. Similarly, in another case cited by Snelling, the court in Wilkinson v. Manpower, Inc., 531 F.2d 712 (5th Cir.1976), ruled that Florida's statute like section 16600 would have invalidated a covenant very similar to those in issue here. The court in Wilkinson, however, relied on Florida choice of law principles to defer to the parties' contractual choice of Wisconsin law on the ground that enforcement of the covenant would not have been against the public policy of Florida. Id. at 715-16. The court then held that the covenant should be enforced under Wisconsin law, which had no such statute similar to section 16600. Id. at 717. [12] It is also worth noting that Bosley Medical Group involved the termination of an independent contracting agreement. While such an agreement is not exactly analagous to a franchise agreement, it is also not strictly an employment agreement between an employer and an employee. Thus, although it is not exactly on point, Bosley Medical Group provides helpful guidance in deciding the instant case once it is recognized that section 16600 applies to franchise agreements even outside of the normal employment contract context, just as it applies to independent contracting agreements. [13] Section 9902 was repealed by Civil Code section 1812.500 effective September 25, 1989. 1989 Cal. Stat. ch. 704 § 2. The definition of employment agency in Civil Code section 1812.500 does not specifically exempt temporary employment agencies from its purview and would hence seem to apply to the TPS franchises here. However, since the conduct upon which this action is based occurred prior to its effective date, section 1812.500 would apply to this case only if it were construed to have retroactive operation. Under well-settled principles of both federal and California law, a statute is presumed to operate only prospectively unless the legislature has manifested a clear intention that the statute should operate retroactively. United States v. Security Industrial Bank, 459 U.S. 70, 79-80, 103 S.Ct. 407, 412-13, 74 L.Ed.2d 235 (1982); Evangelatos v. Super. Ct., 44 Cal.3d 1188, 1206-07, 246 Cal.Rptr. 629, 753 P.2d 585 (1988). Indeed, California Civil Code section 3 requires an express declaration by the legislature in order for its provisions to be retroactive. No such declaration exists in Civil Code section 1812.500. It therefore should be applied only prospectively and not to this case. [14] The literal language of section 16607 refers to employers and employees. It is thus to be distinguished from section 16600 which refers to "every contract" and "any person." Using the usual canons of statutory interpretation, the Court considers that it is not anomalous to conclude, as it has in this case, that the sweep of section 16600 is broader than section 16607. [15] The Court notes that pursuant to the franchise agreements and the preliminary injunction granted upon Snelling's request, the plaintiffs have returned to Snelling all "confidential systems material" related to the operation of their TPS franchises and have ceased use of Snelling's business forms.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the First Circuit No. 00-2097 UNITED STATES OF AMERICA, Appellant, v. JOHN MORAN and NORA MORAN, Defendants, Appellees. ERRATA The opinion of this court issued on September 23, 2002, should be amended as follows: On page 2, first full paragraph, line 1, replace "Greenburg" with "Greenberg". On page 30, lines 3-4, replace the phrase "but it not" with the phrase "but it did not". On page 32, line 3 of 2nd full paragraph, replace "loan" with "loans".	{ "pile_set_name": "FreeLaw" }
NO. 12-02-00351-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS RODERICK EDWARD LATHAM,§ APPEAL FROM THE APPELLANT V.§ COUNTY COURT OF THE STATE OF TEXAS, APPELLEE§ UPSHUR COUNTY, TEXAS OPINION Roderick Edward Latham ("Appellant") appeals his conviction for resisting arrest. In two issues on appeal, Appellant asserts that the evidence is not legally or factually sufficient to support his conviction. We affirm. Background Appellant was charged by information with resisting arrest. (1) Appellant pleaded not guilty and elected a trial by jury. At trial, Jeffrey Scott Moore ("Moore") testified that, in July of 2002, he was a peace officer with the Upshur County Sheriff's office, working as a patrol deputy. On July 18, at approximately 10:43 p.m., he was dispatched to the residence of Appellant and his wife, Tonya Latham ("Tonya"). When Moore arrived at the residence, he pulled into the driveway, and a truck driven by Tonya pulled in behind him. Tonya told him that Appellant was in the house, that he was tearing up the house, and that he was "acting crazy." Tonya explained that Appellant had come out of the house and chased her with a pool stick. Moore entered the house cautiously, listening carefully, but heard nothing. He began to identify himself, calling out as he systematically went through the house, but there was no response. In his search, Moore discovered the bottom half of a pool stick lying near a hallway in the living room. Moore found Appellant lying on a bed, breathing very hard, and sweating. Moore asked Appellant what had happened, and Appellant responded by asking, using expletives, what Moore was doing in his house. Moore considered the manner of Appellant's response unusual. Moore explained that Tonya had called the sheriff's office, and that he was attempting to find out what had occurred. Appellant continued to curse at Moore, stating that Moore needed to get out of his house. Appellant became excited, sat up, and physically became rigid with clenched fists. Moore told Appellant to calm down, attempting to avoid a confrontation and stall for time until his backup arrived. At that point, Appellant began asking where Tonya was, but Moore told Appellant that he, Appellant, needed to talk to Moore. Appellant continued to curse. Moore informed Appellant that he was going to handcuff Appellant for their safety until he determined what had occurred. Appellant angrily objected, yelled for Tonya, and rushed Moore. Moore was standing partly in the doorway of the bedroom, and reached out to grab Appellant. However, Appellant pushed his left forearm into Moore's chest area, shoving him out of the way. Appellant began to walk down the hallway quickly with Moore following him and telling him to stop, put his hands behind his back, and comply with his requests. Moore attempted to grab Appellant several times, but Appellant shrugged and pulled away from him. Appellant went out the front door, continuing to curse Moore, shouted for Tonya, and began looking around. According to Moore, Appellant was in a threatening posture, clenched over with his arms bowed. Moore pushed Appellant down, attempting to subdue and handcuff him. However, Appellant got up, turned around, and faced Moore. Moore again told Appellant to comply with his instructions, but Appellant continued to curse at Moore. At that moment, Moore believed that his safety was in danger because he was the only officer at the scene, and they were ten feet or less from the porch where a machete was located. As a result, Moore pepper sprayed Appellant. Moore continued to instruct Appellant to "get down," but he did not. In response, Moore again pushed Appellant, and he fell to his knees. Finally, Appellant complied with Moore's instructions, and put his hands behind his back. However, Appellant's hands were still clenched and he continued to curse. After Moore handcuffed Appellant's left wrist and was attempting to handcuff his other wrist, Appellant began to pull away, pull forward, and resist. Appellant and Moore wrestled for a time, but eventually Moore handcuffed Appellant's other wrist. Moore informed Appellant that, if he would calm down and relax, Moore would get a water hose and wash the spray from his eyes. Appellant continued to curse and then spit in Moore's face. Moore took his eyeglasses off to remove the saliva and, as he was putting them back on, he noticed Appellant attempting to stand. Moore ran to Appellant, lunged forward, and knocked him to the ground. Although Appellant continued to curse, he did not try to get up again. Moore's backup, Deputy Wade Davis ("Davis"), arrived and transported Appellant to the jail. Moore testified that because of Appellant's behavior, attitude, and physical demeanor, he does not believe he would have allowed Appellant to leave the bedroom if Appellant had not used force against him. In his testimony, Moore used the term "arrest situation" while explaining the procedure a peace office must follow regarding the preparation and filing of a report. The jury found Appellant guilty, and assessed punishment at 180 days in jail. This appeal followed. Evidentiary Sufficiency In two issues, Appellant argues that the evidence was not legally or factually sufficient to support a conviction for resisting arrest. Appellant contends that the encounter between him and Moore was not an arrest, nor could a reasonable person in his position discern that Moore was attempting to effect an arrest. The State argues that, when Appellant struck Moore in the chest, the officer was authorized to arrest him. Further, the State contends that when Appellant wrestled with Moore after the assault, he was resisting arrest. Standard of Review "Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction." Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, no pet.) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained "unless it is found to be irrational or unsupported by more than a 'mere modicum' of the evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury's domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982). After a reviewing court has found that the evidence is legally sufficient to support the verdict, the court may go forward with a review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In reviewing factual sufficiency, a court examines all the evidence "without the prism of 'in the light most favorable to the prosecution' and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Id. at 134. The court must inquire whether a neutral review of all the evidence, both for and against the verdict, establishes that the proof of guilt is so manifestly weak as to undermine faith in the jury's resolution, or the proof of guilt, although sufficient if taken alone, is greatly offset by conflicting proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A proper deference should be demonstrated by the reviewing court in order to deter a court from substituting its judgment for that of the fact finder, and any examination of the evidence should not substantially intrude upon the fact finder's role as the exclusive judge of the weight and credibility given to witness testimony. Id. at 7; Clewis, 922 S.W.2d at 133. Wrong and unjust verdicts include ones in which the verdict is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 165 (Tex. Crim. App. 1997). The reviewing court examines all of the evidence in the record pertaining to the factual sufficiency challenge, not just evidence confirming the verdict. Id. at 164. In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The correct charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. Elements of the Offense In order to convict an accused for resisting arrest under section 38.03 of the Texas Penal Code, the State must prove beyond a reasonable doubt (1) that the accused intentionally (2) prevented or obstructed (3) a person he knows is a peace officer (4) from effecting an arrest (5) of himself (6) by using force against the peace officer. Vaughn v. State, 983 S.W.2d 860, 862 (Tex. App.-Houston [14th Dist.] 1998, no pet); see Tex. Pen. Code Ann. § 38.03(a). It is no defense to prosecution that the arrest was unlawful or arbitrary under the constitution. Tex. Pen. Code Ann. § 38.03(b); see Schrader v. State, 753 S.W.2d 733, 735 (Tex. App.-Austin 1988, pet. ref'd). In applying section 38.03(a) of the Texas Penal Code, the essential inquiry is whether the actor has forcibly interfered with a peace officer's "arrest" transaction or process to bring the actor under control. Schrader, 753 S.W.2d at 735. The legislature intended the expression "effecting an arrest" to encompass the reasonable actions or process of a peace officer bringing a person under the officer's control for purposes of the law. Id.; see Bruno v. State, 922 S.W.2d 292, 294 (Tex. App.-Amarillo 1996, no pet.). From the moment the officer begins his efforts to gain control or physical restraint over an individual until the individual is restrained or controlled, the officer can be considered "effecting an arrest." Bruno, 922 S.W.2d at 294. Although it is necessary for the officer to have a pre-existing intent to arrest together with some action taken pursuant to that intent, the process is not dependent upon the officer verbalizing his intention to arrest. Id.; see White v. State, 601 S.W.2d 364, 366 (Tex. Crim. App. [Panel Op.] 1980). Although not conclusive, the officer's opinion as to whether the person was under arrest is a relevant and important factor to consider. Vaughn, 983 S.W.2d at 862-63. Further, whether a person is under arrest is determined by asking if a reasonable person would have believed he was not free to leave in light of all the circumstances surrounding the incident. Wilson v. State, 943 S.W.2d 43, 45 (Tex. App.-Tyler 1996, pet. ref'd) (citing Gilbreath v. State, 412 S.W.2d 60, 61 (Tex. Crim. App. 1967)). Application of the reasonable person standard in the context of an arrest prevents a conviction based on a less intrusive type of seizure. Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000). Whether a stop is an actual arrest or a detention also depends upon whether a reasonable person would believe the seizure would be brief given the totality of circumstances. Vaughn, 983 S.W.2d at 862. Where no investigation is undertaken, the detention cannot be considered merely investigatory and rises to the level of an arrest. Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991); see Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991)(concluding that a detention could not be characterized as investigatory because no investigation was conducted). But see Rhodes v. State, 945 S.W.2d 115, 119 n.4 (Tex. Crim. App. 1997) (rejecting the implication that an investigatory detention is not valid unless the officer first asks questions of the detainee because facts and circumstances may establish a detention as investigatory without such questioning). Force involved in the offense of resisting arrest must occur not only after the arrest begins, but also before it ends. Lewis v. State, 30 S.W.3d 510, 512 (Tex. App.-Amarillo 2000, no pet.) (citing Young v. State, 622 S.W.2d 99, 100 (Tex. Crim. App. 1981); Vaughn, 983 S.W.2d at 862)). Further, "a person who uses force in order to shake off an officer's detaining grip, whether by pushing or pulling, may be guilty of resisting arrest." Torres v. State, 103 S.W.3d 623, 627 (Tex. App.-San Antonio 2003, no pet.); see Hopper v. State, 86 S.W.3d 676, 679 (Tex. App.-El Paso 2002, no pet.); Bryant v. State, 923 S.W.2d 199, 207-08 (Tex. App.-Waco 1996), pet. ref'd, 940 S.W.2d 663 (Tex. Crim. App. 1997). But see Leos v. State, 880 S.W.2d 180, 184 (Tex. App.-Corpus Christi 1994, no pet.) (concluding that merely trying to flee, crawl away, or shake off a detaining grip is not sufficient force against a peace officer to sustain a conviction for resisting arrest); Raymond v. State, 640 S.W.2d 678, 679 (Tex. App.-El Paso 1982, pet. ref'd) (holding that merely pulling arm away from officer not sufficient force to sustain a conviction for resisting arrest). Analysis We must first determine whether Moore was effecting an arrest of Appellant. Although not conclusive, Moore's opinion as to whether Appellant was under arrest is relevant and a factor to consider. See Vaughn, 983 S.W.2d at 862-63. Based on Appellant's demeanor and actions, Moore testified that he did not believe he would have allowed Appellant to leave the bedroom if force had not been used against him. Further, Moore attempted to grab Appellant both in the bedroom doorway and down the hallway, culminating in attempts to subdue and control him once in the yard of the house. At one point in his testimony, Moore used the term "arrest situation" while describing the procedures for preparing and filing a report. This reference would support an inference that he considered Appellant to be under arrest. Thus, viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found that Moore believed he was effecting an arrest of Appellant. However, whether a person is under arrest is determined by asking if a reasonable person would have believed he was not free to leave based on the circumstances of the incident. See Wilson, 943 S.W.2d at 45. Moore tried to grab Appellant both in the doorway to the bedroom and down the hallway in order to handcuff him. Further, Moore attempted to subdue and control Appellant once outside the house, and did not allow Appellant to walk away from him. Based on these circumstances, a reasonable person in Appellant's situation would have believed that he was not free to leave. Whether a stop is an arrest or detention also depends upon whether a reasonable person would believe the seizure would be brief given the totality of the circumstances. See Vaughn, 983 S.W.2d at 862. Based on Appellant's behavior and actions after leaving the bedroom, and Moore's attempts to grab, subdue, and control him, a reasonable person in Appellant's situation would not have believed that the seizure would be brief. We conclude that, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that a reasonable person would not have believed that the stop was an investigatory detention given the totality of the circumstances. Our last inquiry is, essentially, whether Appellant forcibly interfered with Moore's actions or process of bringing him under Moore's control. See Schrader, 753 S.W.2d at 735. Appellant's actions in shoving Moore from the doorway of the bedroom with his forearm, shrugging and pulling away from attempts by Moore to grab him in the hallway, and pulling away from Moore while he was attempting to handcuff Appellant are sufficient force against Moore to sustain a conviction for resisting arrest. See Torres, 103 S.W.3d at 627; Hopper, 86 S.W.3d at 679; Bryant, 923 S.W.2d at 207-08. Based on our review of the record and viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the elements of resisting arrest beyond a reasonable doubt. Accordingly, Appellant's first issue is overruled. Having determined that the evidence is legally sufficient to support the verdict, we address factual sufficiency. During the incident, Moore never verbalized his intent to arrest Appellant. In fact, Moore told Appellant that he was going to handcuff Appellant for their safety until he determined what had occurred. Further, Moore never testified that he intended to arrest Appellant, or that he considered Appellant to be under arrest. Similar to an investigatory detention, Moore attempted to investigate the events of that evening, asking who had broken the pool stick and trying to discuss the alleged events between Appellant and his wife earlier that evening. All this evidence is in favor of Appellant. However, Moore was not required to announce that Appellant was under arrest. See White, 601 S.W.2d at 366. Further, if little or no investigation has occurred, a detention may rise to the level of an arrest. See Burkes, 830 S.W.2d at 925; Amores, 816 S.W.2d at 412. Because of Appellant's behavior, demeanor, and subsequent actions, Moore was able to conduct little, if any, investigation. In reviewing the entire record, both for and against the jury's verdict, we do not find that proof of Appellant's guilt is so manifestly weak as to undermine faith in the jury's resolution, or that the proof of guilt, although sufficient if taken alone, is greatly offset by conflicting proof so as to render Appellant's conviction clearly wrong or manifestly unjust. Accordingly, Appellant's second issue is overruled. Conclusion Based upon our review of the record, we hold that the evidence is both legally and factually sufficient to support the jury's verdict that Appellant was guilty of resisting arrest. Accordingly, the judgment of the trial court is affirmed. DIANE DEVASTO Justice Opinion delivered January 30, 2004. Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J. (PUBLISH) 1. Tex. Pen. Code Ann. § 38.03(a) (Vernon 2003).	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 25, 2003 Charles R. Fulbruge III Clerk No. 03-50103 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MERARDO ALCARAZ-DIAZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-1690-ALL -------------------- Before DeMOSS, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Merardo Alcaraz-Diaz appeals the sentence imposed following his guilty plea conviction of being found in the United States after deportation/removal in violation of 8 U.S.C. § 1326. Alcaraz contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) define separate offenses. He argues that the prior conviction that resulted in his increased sentence is an element of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in his indictment. Alcaraz maintains that he pleaded * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 03-50103 -2- guilty to an indictment which charged only simple reentry under 8 U.S.C. § 1326(a). He argues that his sentence exceeds the two-year maximum term of imprisonment which may be imposed for that offense. In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not elements of separate offenses. The Court further held that the sentencing provisions do not violate the Due Process Clause. Id. at 239-47. Alcaraz acknowledges that his argument is foreclosed by Almendarez-Torres, but asserts that the decision has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his argument for further review. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). The judgment of the district court is AFFIRMED. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that an appellee’s brief not be required. The motion is GRANTED. AFFIRMED; MOTION GRANTED.	{ "pile_set_name": "FreeLaw" }
911 N.E.2d 4 (2005) 361 Ill. App.3d 1083 NUWAY COMMUNITY SERVICES, INC. v. KALE. No. 1-03-3624. Appellate Court of Illinois, First District. November 3, 2005. Affirmed.	{ "pile_set_name": "FreeLaw" }
587 N.E.2d 665 (1992) Thomas TATE, Appellant (Plaintiff below), v. SECURA INSURANCE, a Mutual Company Appellee (Defendant below). No. 49S02-9202-CV-135. Supreme Court of Indiana. February 28, 1992. 666 W.F. Conour, Rex E. Baker, Conour Doehrman, Indianapolis, for appellant. Steven H. Frank, Carter & Leerkamp, Indianapolis, for appellee. DICKSON, Justice. Plaintiff-appellant Thomas Tate seeks transfer to this Court following the decision of the Court of Appeals affirming summary judgment for Secura Insurance, A Mutual Company, the defendant-appellee, as to the interpretation to be given an automobile insurance policy providing underinsured motorists coverage. Tate v. Secura Insurance (1990), Ind. App., 561 N.E.2d 814. 667 Tate was seriously injured as he was providing assistance to a car stalled in the parking lane of an Indianapolis street when it was struck by a vehicle operated by an intoxicated driver. Tate settled with the driver's insurance company for $50,000, the maximum payable under the driver's bodily injury liability coverage. With alleged preliminary medical expenses already in excess of $60,000, past and future income losses, permanent impairment, and the possibility of future amputation, Tate claimed that the reasonable value of his total damages was in excess of $100,000 and asserted a claim under the underinsured motorists provision of his own automobile insurance policy with Secura, which denied the claim. Tate's law suit for breach of contract ensued, resulting in summary judgment in favor of Secura, and the Court of Appeals affirmed. We now grant Tate's petition for transfer. Secura contends, and we agree, that the summary judgment should be affirmed if the trial court was correct upon any one of the of the following potentially dispositive issues: 1. whether Tate is entitled to receive up to $50,000 under his Secura underinsured motorists coverage with $50,000 limits where his total damages exceed the tortfeasor's $50,000 bodily injury liability insurance limits; 2. whether Tate's claim is precluded for failure to comply with the provisions requiring exhaustion of applicable bodily injury liability insurance; and 3. whether Tate's claim is precluded for failure to obtain Secura's consent to his settlement with the underinsured driver. Arguing that summary judgment in favor of Secura is improper on each of these questions, Tate presents an additional issue regarding the affidavit of an expert witness, which we will not address due to our resolution of the dispositive issues. 1. Do Tate's limits preclude his claim? Tate contends that when the total damages to an insured person exceed the tortfeasor's liability limits, the amount of recovery under his underinsured motorists coverage is the full amount of damages sustained less the tortfeasor's liability limits already received, or the limits of the underinsured motorists coverage, whichever is less. Secura contends that where, as here, the tortfeasor's liability insurance limits are equal to those of its policyholder's underinsured motorists coverage, the reduction provisions of the policy preclude payment. The following policy provisions[1] are pertinent to this issue: PART III UNINSURED MOTORISTS COVERAGE AND UNDERINSURED MOTORISTS COVERAGE * * * * * * COVERAGE C-2 UNDERINSURED MOTORISTS COVERAGE We will pay damages which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury sustained by an insured person and caused by an accident. * * * * * * ADDITIONAL PROVISIONS APPLICABLE TO PART III ONLY * * * * * * A. Definitions As used in this part: * * * * * * 3. "Underinsured motor vehicle" means a land motor vehicle or trailer, which is insured by a liability policy or bond at the time of the accident which provides bodily injury liability limits less than the amount of total damages an insured person is legally entitled to recover but which are uncompensated because the damages exceed those limits. * * * * * * 668 D. Reductions in the Amounts Payable Amounts payable will be reduced by: 1. Amounts paid because of the bodily injury by, or on behalf of, persons or organizations who may be legally responsible. Record at 10-11. The declaration page of the policy specified that Tate's limit of liability for underinsured motorists coverage was $50,000 per person. Record at 146. The interpretation of an insurance policy, as with other contracts, is primarily a question of law for the court, even if the policy contains an ambiguity needing resolution. Eli Lilly & Co. v. Home Insurance Co. (1985), Ind., 482 N.E.2d 467, cert. denied, 479 U.S. 1060, 107 S.Ct. 940, 93 L.Ed.2d 990. It is only where a contract is ambiguous and its interpretation requires extrinsic evidence that the fact finder must determine the facts upon which the contract rests. Kordick v. Merchants Nat'l Bank and Trust Co. (1986), Ind. App., 496 N.E.2d 119; Wilson, Adm'x v. Kauffman (1973), 156 Ind. App. 307, 296 N.E.2d 432. If insurance policy language is clear and unambiguous, it should be given its plain and ordinary meaning. Spears v. Jackson (1980), Ind. App., 398 N.E.2d 718. If there is an ambiguity, the policy should be interpreted most favorably to the insured. Miller v. Dilts (1984), Ind., 463 N.E.2d 257. It should be construed to further the policy's basic purpose of indemnity, Eli Lilly, 482 N.E.2d 467. The Court of Appeals correctly identifies the focus of the controversy to be the section of the policy in Part III entitled "D. Reductions in the Amounts Payable," which provides in pertinent part that "[a]mounts payable will be reduced by ... [a]mounts paid" to the insured by or on behalf of the tortfeasor. The parties dispute the meaning to be given "amounts payable," a phrase not expressly defined in the policy. The Court of Appeals majority declares that it "unambiguously refers to the policy limits of $50,000." 561 N.E.2d at 818, and thus it is Tate's coverage limits which must be reduced by the amounts paid from the tortfeasor to determine whether he is entitled to payment. The dissent, although likewise declaring this provision "unambiguous," asserts that the phrase means the "amount of bodily injuries Tate is entitled to recover from the tortfeasor," and concludes that "in plain words" the contract provides underinsured motorists coverage for bodily injury damages to the extent they exceed the tortfeasor's liability coverage, up to Tate's limits for this coverage. 561 N.E.2d at 820. This issue must be resolved against Secura. By failing to clearly express a contrary meaning, Secura is bound by the plain and ordinary meaning of its words as viewed from the standpoint of the insured. We find the phrase "amounts payable" to refer to the initial insuring agreement for Coverage C-2 Underinsured Motorists Coverage wherein Secura promises to pay such bodily injury damages as its insured is legally entitled to recover from the operator of an underinsured motor vehicle. It is this amount of damages, not the coverage limit, which is the "amounts payable" to be reduced by the amount paid to Tate by or on behalf of the tortfeasor. This result is also supported by Secura's definition of "underinsured motor vehicle" as one whose applicable bodily injury liability coverage is less than the "total damages" which would be recoverable, "but which are uncompensated because the damages exceed those limits." Secura did not define "underinsured motor vehicle" as one whose applicable liability coverage was also less than the limits of the insured's underinsured motorists coverage. Secura contends that the interpretation of its policy should follow the type of underinsured motorists coverage required under Ind. Code §§ 27-7-5-4(b), 5(c). However, as Tate correctly points out, these statutes did not exist in 1986 when this policy was issued. Indiana did not then require Secura to provide underinsured motorists coverage, nor did it impose statutory limits upon the nature and operation of such coverage. Also arguing that "amounts payable" must necessarily mean Tate's coverage limits of $50,000, Secura claims that to hold 669 otherwise would be to "totally eliminate the reducing clause, thus rewriting the contract of insurance." Brief of Defendant-Appellee at 20. We disagree. Such clause operates to assure that Secura will not have to pay to its insured amounts already received from the tortfeasor, which would be its obligation under the language used in Secura's Coverage C-2 insuring agreement. Secura urges that its position is supported by Meridian Mutual Ins. Co. v. Richie (1988), Ind. App., 517 N.E.2d 1265, vacated (1989), Ind., 540 N.E.2d 27, reinstated on reh'g (1989), Ind., 544 N.E.2d 488, which also involved the interpretation of underinsured motorists coverage language in an insurance contract. In Richie the term "underinsured automobile" was contractually defined to apply only when its limits of bodily injury liability coverage were less than "the applicable limit of liability under this insurance." 517 N.E.2d 1265. This phrase was found to refer to the liability limits of the underinsured motorists coverage itself, rather than the insurance policy's bodily injury liability coverage limits. The decision in Richie is not applicable to the present facts because the Meridian Mutual policy language is altogether different from that used in the Secura policy, which defines "underinsured automobile" to apply whenever the tortfeasor's bodily injury liability limits are "less than the amount of total damages an insured person is legally entitled to recover but which are uncompensated because the damages exceed those limits." We therefore conclude that Tate's underinsured motorist coverage limits do not bar his claim. We agree with the analysis of Judge Shields in her dissent, and we find that the contract provides Tate with underinsured motorists coverage for his bodily injury damages, to the extent these damages exceed the tortfeasor's liability coverage, up to the limits of Tate's own underinsured motorists coverage. Secura is not entitled to summary judgment on this issue. 2. Exhaustion of Applicable Bodily Injury Liability Insurance Secura contends that because Tate failed to assert claims against liability insurance coverages applicable to the disabled vehicle involved in the accident and to the man who had pushed the stalled car to the curb, Tate failed to satisfy policy language stating that payment under Coverage C-2 would occur "only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment or judgments or settlements" (emphasis added). Ignoring its own policy's definition of the phrase "underinsured motor vehicle," Secura argues that the exhaustion provision should be interpreted in conjunction with the present statutory definition of "underinsured motor vehicle" found in Ind. Code § 27-7-5-4(b) (Ind. P.L. 391-1987(ss), eff. Jan. 1, 1988). For the purpose of this chapter, the term "underinsured motor vehicle", subject to the terms and conditions of such coverage, includes an insured motor vehicle where the limits of coverage available for payment to the insured under all bodily injury liability policies covering persons liable to the insured are less than the limits for the insured's underinsured motorist coverage at the time of the accident, ... . [Emphasis added.] Such contention is rather disingenuous for several reasons. The statutory definition was first enacted after Secura issued its policy to Tate and even after the date of the accident. It was contained in legislation that established minimum, but not maximum, policy requirements. Furthermore, (although omitted from its partial quotation in Secura's brief) the statutory definition is expressly subject to the actual terms of the policy. Under Secura's own policy the phrase "underinsured motor vehicle" is defined in terms wholly unrelated to the concept "all bodily injury liability policies covering persons liable to the insured" utilized in the statutory definition. The phrase "any applicable" in the exhaustion provision is at best ambiguous. Secura interprets it to refer to all potential 670 policies that it may allege. We disagree. The rules of construction discussed in Issue 1 above require that we find it to mean any one policy providing bodily injury liability coverage for a tortfeasor from whom the policyholder may be legally entitled to recover. Under the wording of its policy, Secura is not entitled to summary judgment by reason of Tate's failure to assert claims against others. 3. Failure to Obtain Secura's Settlement Consent Secura contends that Tate is estopped from recovery because he did not obtain Secura's consent to his settlement with the tortfeasor. Secura argues that Tate's settlement operated to destroy its subrogation rights against the tortfeasor, thereby breaching the policy contract, which includes the following pertinent provisions: B. Exclusions [included as an additional provision applicable only to the uninsured and underinsured coverages] We do not cover bodily injury to a person: * * * * * 2. If that person or the legal representative of that person makes settlement without our written consent. * * * * * * F. Our Recovery Rights [included in Part IV General Provisions] If we make a payment under this policy, we are entitled to all the rights of recovery that the person or organization to or for whom payment was made has against another. That person or organization must: 1. Sign and deliver to us any legal papers relating to that recovery. 2. Do whatever else is necessary to help us exercise those rights and 3. Do nothing after the accident, occurrence or loss to harm our rights. If a person to or for whom we have made payment under this policy also recovers from another, that person shall: 1. Hold the amount recovered in trust for us and 2. Reimburse us to the extent of our payment. Record at 11, 17. In exchange for payment of the tortfeasor's liability coverage limits of $50,000, Tate executed a covenant not to sue promising to forever refrain from bringing suit against the tortfeasor on account of any and all claims resulting from the accident. Record at 386. The applicable principles supporting Secura's contention are succinctly stated in Allstate Ins. Co. v. Meek (1986), Ind. App., 489 N.E.2d 530, 533: In summary, an insured who destroys the insurer's contractual subrogation rights breaches the insurance contract and, as a result, extinguishes his right of action on the policy. An insured destroys the insurer's contractual subrogation right by releasing the tortfeasor prior to settling with the insurer because it is that very settlement which enables the insurer to protect its subrogation right by giving notice thereof to the tortfeasor. However, where the insurer has given notice to the tortfeasor of its payment and the tortfeasor thereafter makes settlement and obtains a release, it will not be a defense as against the insurer in enforcing its rights as subrogee. Allstate, 489 N.E.2d at 533, n. 2, Hockelberg v. Farm Bureau Ins. (1980), Ind. App., 407 N.E.2d 1160; American Auto. Fire Ins. Co. v. Spieker (1933), 97 Ind. App. 533, 187 N.E. 355. Similarly, the rule does not apply where the doctrines of waiver and estoppel are available. Allstate, 489 N.E.2d at 533, n. 3; Farm Bureau Mut. Ins. Co. v. Dercach (1983), Ind. App., 450 N.E.2d 537; Nat'l Mut. Ins. Co. v. Fincher (1981), Ind. App., 428 N.E.2d 1386; Protective Ins. Co. v. Coca-Cola Bottling Co. (1981), Ind. App., 423 N.E.2d 656; West v. Indiana Ins. Co. (1970), 148 Ind. App. 176, 264 N.E.2d 335. Tate argues that Secura has waived any subrogation rights and is estopped from asserting any claimed violation thereof because Secura was fully apprised of Tate's claim negotiations and proposed settlement, and yet never objected or raised any issue of intended subrogation. Secura 671 does not specifically address this argument. Beginning within a few days after the December 20, 1986, accident, numerous communications occurred between Tate's counsel and Secura's adjuster. By January 17, 1987, Secura knew of Tate's intention to present an underinsured motorists coverage claim. By a letter to the adjuster dated March 30, 1987, Tate's attorney again indicated that such a claim would be made as soon as Tate's medical condition stabilized, and enclosed a copy of a letter to the tortfeasor's insurer offering to settle Tate's claims for payment of the applicable $50,000 liability limits. On April 13, 1987, Tate's counsel informed Secura's adjuster that a settlement had been concluded on April 9, 1987, for the tortfeasor's policy limits, and expressing the intent to make a "formal demand" for settlement pursuant to the underinsured motorist coverage as soon as further information was known regarding Tate's medical progress. At no time did Secura object to Tate's negotiations with the tortfeasor's insurer nor assert any right to consent to any resulting settlement. Tate executed the covenant not to sue on April 21, 1987. In a letter dated April 27, 1987, Secura denied Tate's underinsured motorists coverage claim asserting as the sole grounds provision D-1 (Reductions in the Amounts Payable) because Tate's underinsured motorists coverage limits were the same as the tortfeasor's bodily injury liability limits. As discussed in Issue 1 above, the language of Secura's underinsured motorists coverage does not permit it to deny the claim for this reason. The term "estoppel" has a meaning distinct from "waiver," but is often used synonymously with "implied waiver." Technically, there is a distinction between "waiver" and "estoppel." A waiver is an intentional relinquishment of a known right and is a voluntary act, while the elements of estoppel are the misleading of a party entitled to rely on the acts or statements in question and a consequent change of position to his detriment. But in the law of insurance, the distinction between "estoppel" and "implied waiver" is not easy to preserve, and, quite commonly, in insurance cases, the courts have found it unnecessary or inadvisable to make a distinction between them and have used the terms interchangeably. Travelers Ins. Co. v. Eviston, Adm'r (1941), 110 Ind. App. 143, 154, 37 N.E.2d 310, 314. We find nothing in the alleged facts to indicate that Secura expressly manifested an intentional relinquishment of its subrogation rights. Mere silence or inaction on the part of an insurer is not sufficient to constitute an express waiver. Protective Ins. Co. v. Coca-Cola Bottling Co. (1981), Ind. App., 423 N.E.2d 656. At issue is whether estoppel or implied waiver may apply. In the absence of resulting prejudice, there is no estoppel or implied waiver. Id. For this reason, we find no estoppel or implied waiver from Secura's conduct in failing to include in its April 27, 1987, denial letter any assertion or reservation of its contractual rights to consent to settlement and to subrogation. By this time, Tate had already negotiated his settlement with the tortfeasor and signed the covenant not to sue. Tate suffered no prejudice from Secura's letter of April 27. The remaining related question is whether an estoppel may arise from Secura's failure to act between January 17, 1987, and April 9, 1987, notwithstanding its knowledge of Tate's negotiations seeking settlement for the tortfeasor's liability coverage limits. The facts in this case are similar to those in Fincher, 428 N.E.2d 1386, which involved a claim for uninsured motorists coverage denied on grounds that the insured had already covenanted not to sue the tortfeasor and had thereby destroyed the insurer's subrogation rights. Acknowledging the general rule that recovery by an insured is barred when, before receiving payment from his own insurer, the insured settles with or releases the alleged tortfeasor, Fincher nevertheless applied [implied] waiver and estoppel, finding that under the evidence the trial court 672 properly found that the insurer had waived, or was estopped to assert, its right of subrogation. [A]n insurer "cannot sit down and hold its hands and purse and thereafter escape liability for fulfillment of its contract by reason of the insured's effort, after fair notice, to recoup his loss by litigation against a wrongdoer." 428 N.E.2d at 1390 (quoting with approval from Powers v. Calvert Fire Ins. Co. (1950), 216 S.C. 309, 316, 57 S.E.2d 638, 642). We conclude that genuine issues of fact exist relating to whether Secura's silence notwithstanding knowledge of Tate's ongoing negotiations operated to mislead Tate, whether Tate was entitled to rely on Secura's said conduct, and whether Tate suffered a consequent change of position to his detriment. Secura is not entitled to summary judgment on this issue. Conclusion The opinion of the Court of Appeals is vacated, the order of summary judgment is reversed, and this cause is remanded to the trial court for further proceedings. SHEPARD, C.J., and DeBRULER, GIVAN and KRAHULIK, JJ., concur. NOTES [1] Except where otherwise indicated, emphasized words or phrases within insurance policy passages quoted in this opinion were italicized in the policy to designate terms expressly defined in the insurance contract.	{ "pile_set_name": "FreeLaw" }
Affirmed and Memorandum Opinion filed March 26, 2020. In The Fourteenth Court of Appeals NO. 14-18-00660-CR JESUS DANIEL GUERRA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1541672 MEMORANDUM OPINION Appellant Jesus Guerra appeals his conviction for murder. A jury found appellant guilty and assessed his punishment at 15 years in prison and a $10,000 fine. In two issues, appellant contends the trial court erred in refusing to (1) grant a mistrial after the prosecutor commented on appellant’s exercise of his right to remain silent and (2) dismiss the indictment in light of alleged prosecutorial misconduct. We affirm. Background Appellant was charged with the murder of Demarcus Tucker. According to appellant’s video-recorded statement to police, in the early morning hours of July 20, 2016, he was driving around in his truck looking to trade Xanax pills for crack cocaine. A man in a white t-shirt offered to help, and appellant drove the man to a couple of places to inquire about an exchange. At the second location, appellant dropped the man off at an intersection. After the man disappeared around a corner with appellant’s Xanax, Tucker, whom appellant knew but not by name, approached appellant, who was still in his truck. According to appellant, he and Tucker shook hands and spoke briefly before Tucker stuck his hands inside the truck, reaching for the pistol appellant kept on the seat under his leg. Appellant said that he always had the pistol in that position when driving around the neighborhood and Tucker knew this. Tucker reportedly told appellant he would shoot appellant in the head. Appellant said that he got his own hand on the gun first and the two struggled momentarily over the weapon before appellant managed to get his finger on the trigger and fire the pistol. Tucker fell to the ground. Appellant repeatedly referred to the incident as an attempted carjacking and claimed he acted in self-defense. In his video-recorded statement, appellant initially told officers that he drove straight home after the incident, then picked up a friend and had a drink before being pulled over by a police officer. He later added that he and his friend drove back through the area where the shooting occurred, looking for the man in the white t-shirt who still had appellant’s Xanax pills. After police told appellant there were inconsistencies in his statements and they knew he was omitting information, appellant called the officers back into the interview room and told them that immediately after the shooting, rather than heading straight home, he had sped off 2 looking for the man in the white t-shirt. He said that he also went into the corner store after the shooting asking after the man, later saw someone in a white t-shirt, and fired two shots at him. Appellant explained that he was in shock from the events and that the additional memories had just come back to him. Area resident Johnnie Basey testified that on the morning in question, he saw a truck stop at the intersection and let a man out who then went toward the corner store. Another man then came from the store, walked over to the truck, and started talking with the man in the truck. Basey said that the two men were speaking audibly but were not yelling and did not appear to be arguing. The man outside the truck had gotten fairly close to the vehicle, so when the truck moved slightly forward, the man stepped back. Basey said that he turned away at that point but heard a shot fired just a moment later. The man who had been outside the truck then fell to the street. Basey did not observe the man outside the truck reach into the truck, and he did not see any struggle between the two men. The truck drove down the street, turned around, and came back through the intersection. Basey then called 911. Dwayne Wolf, the deputy medical examiner for Harris County, performed an autopsy on Tucker. In doing so, he did not observe any soot, stippling, or other firearm residue on Tucker’s hands that would have been consistent with Tucker having his hands on the pistol when it discharged. Appellant’s issues primarily concern statements the prosecutor made during closing arguments. During her opening statement, the prosecutor stated appellant had provided three different versions of events, and defense counsel acknowledged in her opening remarks that indeed appellant had remembered “more and more” as he was coming out of the shock of the events. In closing, defense counsel stated: He admits that he shot out his back window. I mean, he admits to that. 3 He wasn’t confronted with it. As he sat there and he thought about it, he knocked on the door and said, I wasn’t truthful with you. I shot—I shot someone. I shot out my back window, rather. And you know what? That was true. In her closing argument, the prosecutor responded by saying: Defense got up here and told you that the defendant’s words to the detectives were, I’m sorry for not being truthful to you. I’m sorry for not being truthful to you. That’s what [defense counsel] said. And if you watch that statement, you will know that those words never escaped his mouth. He never apologized for not being truthful but in the converse, as soon as he made the third iteration of his story, he said, I don’t want it to seem like I’m being deceitful. I’m being honest with you. He never apologized for not being truthful. He never apologized for lying to them. He wanted to continue the idea and the appearance that he was telling the truth. He never apologized for it and he has not apologized for it even now. (Emphasis added.) Defense counsel objected to this argument as a comment on appellant’s failure to testify. The trial court agreed, sustained the objection, and instructed the jury to disregard “the last statement” as defense counsel requested. Defense counsel then moved for a mistrial, which the trial court denied. This ruling is the subject of appellant’s first issue. At another point in her closing argument, defense counsel referenced two people whom police officers had mentioned as people they had interviewed in their investigation but had not been called to testify: The prosecutors have the burden of proof and the burden to disprove [self-defense]. So where’s Herman? Where’s Herman Celestine? Where’s Ricky Jenkins? Where are all the other witnesses that these detectives interviewed? Why didn’t they bring them to you? What would they have told you? You have a right to wonder why they weren’t here and that should make you doubt right there. 4 Celestine was purportedly the man in the white t-shirt who left with appellant’s Xanax. Appellant purportedly spoke to Jenkins in a confrontational manner in the corner store after the shooting. In response, the prosecutor said in her closing argument: I want you to focus on the real story. Now, defense commented on why we don’t have Ricky Jenkins here or why we don’t have Herman Celestine here. And I want to ask you, if a man shot at you while you were running away, would you be scared? If a man came in the store and threatened you, would you be scared? Absolutely. And what we know about Third Ward is that it’s a scary place to be. So make no mistake. There is nothing by the way of anyone that will change this defendant’s story and make it true. Appellant did not object to these statements when made, but after the jury retired to deliberate, appellant moved to dismiss the indictment against him, arguing that the statements amounted to prosecutorial misconduct, particularly because Jenkins was at that time in jail on a bench warrant issued in this case. Defense counsel further asserted that the prosecutor had not informed the defense of Jenkins’s status and a different prosecutor told defense counsel that Jenkins was not being called because he had been arrested for robbery during the pendency of appellant’s case. The trial court denied the motion. This ruling is the subject of appellant’s second issue. Motion for Mistrial Standards of review. In his first issue, appellant contends that the trial court erred in denying his motion for mistrial after the prosecutor referenced his failure to testify in closing argument. A mistrial is appropriate only in “extreme circumstances” for a narrow class of prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We review a trial court’s denial of a mistrial for an abuse of discretion. Id. We view the evidence in the light 5 most favorable to the trial court’s ruling, considering only those arguments before the court at the time of the ruling. Id. We must uphold the ruling if it was within the zone of reasonable disagreement. Id. Specifically, in regard to jury argument, mistrial is the proper remedy only when improper argument is so inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We generally presume on appeal that the jury followed the trial court’s instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). This presumption is refutable, but the appellant must rebut the presumption by pointing to evidence in the record indicating that the jury failed to follow the trial court’s instructions. Id. Permissible jury argument is limited to four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to opposing counsel’s argument; and (4) pleas for law enforcement. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). Generally, when an argument falls outside these areas, error occurs. Id. However, an instruction to disregard the argument generally cures the error. Id. Only offensive or flagrant error will mandate reversal after a trial court’s instruction to disregard improper jury argument. Pena v. State, 554 S.W.3d 242, 252 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). In determining whether a prejudicial event was so harmful as to warrant reversal on appeal, we consider (1) the severity of the misconduct (i.e., the magnitude of the prejudicial effect), (2) the measures adopted to cure the misconduct (i.e., the efficacy of any cautionary instruction), and (3) the certainty of conviction absent the misconduct (i.e., the strength of the evidence supporting the verdict). Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Pena, 554 S.W.3d at 252. 6 Analysis. As set forth above, the motion for mistrial in this case concerned the prosecutor’s assertion in closing argument that appellant had not apologized “even now” to police officers for misleading them. Appellant maintains that this assertion improperly commented on appellant’s exercise of his Fifth Amendment Right to remain silent. See U.S. Const. amend. V. We agree with this contention as, apparently, did the trial judge as she instructed the jury to disregard the statement. We conclude, however, that the prosecutor’s statement was not so harmful as to necessitate reversal. We begin by noting that the statement likely did not have a great prejudicial impact. See Mosley, 983 S.W.2d at 259. The State was entitled to point out that appellant had changed the version of events he provided to police, and the video recording of appellant’s statement did not show him apologize to officers for the misleading statements. The prosecutor, however, went too far in pointing out that appellant did not apologize at trial. The brief reference was not repeated or otherwise emphasized. See Archie, 221 S.W.3d at 700 (noting brevity of prosecutor’s reference to defendant’s right to remain silent in concluding no harm resulted in denying mistrial); Dukes v. State, 239 S.W.3d 444, 450 (Tex. App.— Dallas 2007, pet. ref’d) (same). We next recognize that the trial court promptly instructed the jury to disregard the mention of appellant’s failure to testify. See Archie, 221 S.W.3d at 700; Dukes, 239 S.W.3d at 450. We presume absent evidence to the contrary that the jury was able to follow that instruction. See Thrift, 176 S.W.3d at 224. Lastly, we consider the strength of the evidence of appellant’s guilt. Appellant admitted to shooting Tucker but claimed Tucker was attempting to grab appellant’s gun at the time as part of a carjacking effort. Appellant’s credibility, however, was cast into doubt by his having provided inconsistent statements to 7 police about certain matters, particularly regarding his activities immediately after the shooting. Additionally, an eyewitness refuted key aspects of appellant’s version of events, suggesting that Tucker had backed away from appellant’s truck just before the gunshot and there was no struggle between the men. The evidence regarding appellant’s behavior after the shooting was also noteworthy. Instead of going home or calling the police, appellant sped around looking for the man who had taken his Xanax pills and even shooting at someone he apparently thought might be that man. And the medical examiner testified that Tucker’s hands did not show signs that they were on a gun when it fired as appellant stated. Although not overwhelming, the evidence of appellant’s guilt was strong. In light of the factors set forth in Mosley, we conclude that the trial court’s instruction was sufficient to ameliorate any harm from the prosecutor’s comment. 983 S.W.2d at 259. Accordingly, the trial court did not abuse its discretion in denying appellant’s request for a mistrial, and we overrule appellant’s first issue. Motion to Dismiss Indictment Governing Law. In his second issue, appellant contends that the trial court erred in denying his motion to dismiss the indictment due to alleged prosecutorial misconduct during trial, primarily about statements the prosecutor made in closing argument suggesting certain witnesses were too scared of appellant to testify. Generally, to complain about trial error on appeal, a criminal defendant must preserve that error by making a timely and sufficiently specific objection, request, or motion in the trial court. See Tex. R. App. P. 33.1(a). This is specifically true for allegations of prosecutorial misconduct. See Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995). “The proper method of preserving error in cases of prosecutorial misconduct is to (1) object on specific grounds, (2) request an instruction that the jury disregard the comment, and (3) move for a mistrial.” Id. 8 Appellant concedes in this case that his counsel did not make a timely objection, did not request the jury be instructed to disregard the prosecutor’s statements, and did not request a mistrial. Instead, counsel waited until the jury retired for deliberations and moved to dismiss the indictment. On appeal, appellant relies on cases proposing that “serious and continuing prosecutorial misconduct that undermines the reliability of the factfinding process” and results in “deprivation of fundamental fairness and due process of law” may entitle a defendant to a new trial even if “few objections have been perfected.” E.g., Rogers v. State, 725 S.W.2d 350, 359-60 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (citing Berger v. United States, 295 U.S. 78, 84, 88 (1935); Ruth v. State, 522 S.W.2d 517 (Tex. Crim. App. 1975); and Kerns v. State, 550 S.W.2d 91 (Tex. Crim. App. 1977)); see also Artz v. State, No. 14-17-00973-CR, 2019 WL 1442069, at *7 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.) (citing Rogers but declining to conclude prosecutorial misconduct occurred where defendant failed to preserve error at trial); Jiminez v. State, 298 S.W.3d 203, 214 (Tex. App.—San Antonio 2009, pet. ref’d) (same). Appellant, of course, is not requesting a new trial but dismissal of the indictment. Courts do not possess general authority to dismiss a charging instrument without the prosecutor’s consent but may do so in specific circumstances. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). “While a trial court may dismiss a charging instrument to remedy a constitutional violation, the dismissal of an indictment is ‘a drastic measure only to be used in the most extraordinary circumstances.’” Id. at 817 (quoting State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995)). In other words, a court may dismiss an indictment without the State’s consent only when “necessary to neutralize the taint of the unconstitutional action.” Id; see also Frye, 897 S.W.2d at 330 (affirming 9 dismissal of indictment where prosecutor contacted defendant directly—even though defendant was represented by counsel—and obtained information regarding defense strategy and evidence to defendant’s detriment). Analysis. In support of his allegation of prosecutorial misconduct, appellant primarily points to the prosecutor’s closing remarks in which she suggested that two people whom police interviewed had declined to testify at trial because they were afraid of appellant. He maintains that, in reality, at least one of the witnesses in question (Jenkins) was in jail at the time of trial and was simply not called to testify, perhaps because the State was concerned he could be impeached with a recent robbery conviction. Appellant contends that in making these remarks, the prosecutor intentionally misled the jury. While the prosecutor’s actions are troubling, appellant’s contention is not fully supported by the record. Although Jenkins was apparently in jail under a bench warrant, there is no indication in the record that Jenkins and Celestine were not afraid to testify. As the prosecutor indicated in her remarks to the jury, there was evidence appellant shot at or intended to shoot at Celestine for taking his Xanax and had a confrontation with Jenkins in the corner store after shooting Tucker. Moreover, during the discussion after the jury retired to deliberate, the prosecutor told the judge that Tucker’s family had informed her that Jenkins did not want to testify because he was scared. As mentioned, appellant posits that the real reason Jenkins was not called to testify was that he could then be impeached with a robbery conviction that occurred during the pendency of appellant’s case. Appellant’s trial counsel, in fact, told the judge that a previous prosecutor had represented that she was not going to call Jenkins for that very reason. However, that a previous prosecutor made this remark does not establish that the prosecutor who actually tried the case felt this 10 way or that Jenkins was not afraid to testify. Appellant additionally complains that the defense was never told that Jenkins was in jail. Appellant does not explain, however, how this equated to prosecutorial misconduct. The prosecutor informed the trial court that this information was readily available by viewing the files for appellant’s case on the clerk’s e-filing system. None of this is to say that the prosecutor’s remarks were proper; it is just to point out that the evidence does not establish that the prosecutor intentionally misled the jury. Moreover, even if we were to conclude that this single brief comment constituted prosecutorial misconduct, the authority appellant relies upon contemplates “pronounced and persistent” unobjected-to misconduct “with a probable cumulative effect on the jury.” Rogers, 725 S.W.2d at 360-61; see also Penry, 903 S.W.2d at 764 (holding that defendant’s failure to timely object to alleged instance of prosecutorial misconduct waived issue). As support for his contention that prosecutorial misconduct was a persistent problem throughout the proceedings, appellant mentions several occurrences, including: other statements in closing argument that the jury was instructed to disregard, including the statement discussed above under appellant’s first issue; a couple of comments and questions to witnesses that objections were sustained against; and concerns relating to a prior trial setting. Each of the occurrences appellant raises, however, was dealt with by the trial court or otherwise rendered moot in some manner, i.e., objections sustained, the jury instructed, a mistrial granted.1 Moreover, the cited occurrences did not demonstrate such “serious and 1 For example, in regard to the previous trial setting, appellant asserts that a prior prosecutor attempted to confuse defense counsel regarding the trial date, failed to tender evidence timely, and made improper remarks to the venire panel during voir dire, which the panel was instructed to disregard. A mistrial was subsequently declared, however, and the panel 11 continuing prosecutorial misconduct” that they resulted in “deprivation of fundamental fairness and due process of law” necessitating reversal. Jiminez, 298 S.W.3d at 214; Rogers, 725 S.W.2d at 359-60. Accordingly, we overrule appellant’s second issue. We affirm the trial court’s judgment. /s/ Frances Bourliot Justice Panel consists of Justices Jewell, Bourliot, and Zimmerer. Do Not Publish — TEX. R. APP. P. 47.2(b). was dismissed. Appellant fails to explain how any conduct by the prior prosecutor in regard to the previous trial date prevented him from receiving a fair trial in the proceedings that resulted in his conviction. 12	{ "pile_set_name": "FreeLaw" }
NO. 12-08-00318-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JESSIE JAMES JACKSON, § APPEAL FROM THE 241ST APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Jessie James Jackson appeals his conviction for conspiracy to commit capital murder. Appellant’s counsel has filed a brief asserting compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We dismiss Appellant’s appeal. BACKGROUND Appellant was charged by indictment with conspiracy to commit capital murder. Appellant pleaded guilty without a plea agreement, and the trial court found him guilty. Following a hearing, the trial court assessed punishment at imprisonment for forty years. This appeal followed. ANALYSIS PURSUANT TO ANDERS V . CALIFORNIA Appellant’s counsel has filed a brief in compliance with Anders and Gainous. Counsel states that he has diligently reviewed the appellate record and that he is well acquainted with the facts of this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel’s brief presents a thorough chronological summary of the procedural history of the case and further states that counsel is unable to present any arguable issues for appeal. We have considered counsel’s brief and have conducted our own independent review of the record. See Anders, 386 U.S. at 745, 87 S. Ct. at 1400; see also Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350, 102 L. Ed. 2d 300 (1988). We have found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). CONCLUSION As required, Appellant’s counsel has moved for leave to withdraw. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that this appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and we dismiss this appeal. See In re Schulman, 252 S.W.3d at 408–09 (“After the completion of these four steps, the court of appeals will either agree that the appeal is wholly frivolous, grant the attorney’s motion to withdraw, and dismiss the appeal, or it will determine that there may be plausible grounds for appeal.”). Counsel has a duty, within five days of the date of this opinion, to send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX . R. APP . P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thirty days following the date of this opinion or the date the last timely motion for rehearing is overruled by this court. See TEX . R. APP . P. 68.2. Any petition for discretionary review must be filed with this court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See TEX . R. APP . P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX . R. APP . P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered July 31, 2009. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 2	{ "pile_set_name": "FreeLaw" }
268 F.Supp.2d 1013 (2003) GLAXO GROUP LIMITED and SmithKline Beecham Corp., Plaintiffs, v. APOTEX, INC., Defendant. No. 00 C 5791. United States District Court, N.D. Illinois, Eastern Division. June 26, 2003. 1015 Christopher S. Pennisi, Michael F. Hurley, Morgan, Lewis & Bockius, New York City, Dean Scott Rauchwerger, James F. Smith, Joshua Avinoam Aldort, Clausen Miller P.C., Chicago, IL, Stephen B. Judlowe, Dennis J. Mondolino, Janet B. Linn, Jason A. Lief, Morgan, Lewis & Bockius, LLP, New York City, for plaintiffs. Hugh L. Moore, Scott B. Feder, Keith D. Parr, Paul J. Molino, William Andrew Rakoczy, Hugh Scott Balsam, Lord, Bissell & Brook, Chicago, IL, for defendant. AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW GETTLEMAN, District Judge. This court has conducted a bench trial on plaintiff GlaxoSmithKline Beecham Corp.'s claims against defendant Apotex, Inc. for a declaration of infringement of patent nos. 4562181 and 4,820,833, and on Apotex's counterclaims of invalidity. In accordance with Fed.R.Civ.P. 52(a), the court enters the following findings of fact and conclusions of law.[1] 1016 PARTIES' STIPULATION OF UNCONTESTED FACTS[2] 1. This is an action for patent infringement. The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a), 2201 and 2202. The Court has personal jurisdiction over the parties. Venue in this judicial district is proper under 28 U.S.C. § 1391. 2. Plaintiff Glaxo Group Ltd. is a British corporation having a principal place of business in Brentford, United Kingdom. Plaintiff SmithKline Beecham Corp. is a Pennsylvania corporation having a place of business in Research Triangle Park, North Carolina. (Plaintiffs Glaxo Group Ltd. and SmithKline Beecham Corp. are collectively referred to as "GlaxoSmithKline"). GlaxoSmithKline is an innovator pharmaceutical company engaged in the research, development, clinical testing and regulatory approval of new drug substances and drug formulations for use in medicines. 3. Defendant Apotex Inc. ("Apotex") is a Canadian corporation having its principal place of business in Weston, Ontario. Apotex sells generic drug products which emulate pharmaceuticals developed and marketed by innovator companies. Apotex markets and sells generic drug products throughout the United States. 4. GlaxoSmithKline is the owner by assignment of U.S. Patent No. 4,562,181 ("the '181 patent"), entitled "Amorphous Form of Cefuroxime Ester", which issued on December 31, 1985 and claims highly pure, substantially amorphous cefuroxime axetil. The '181 patent expires on July 29, 2003. 5. GlaxoSmithKline is the owner by assignment of U.S. Patent No. 4,820,833, ("the '833 patent"), entitled "Preparation of a Highly Pure, Substantially Amorphous Form of Cefuroxime Axetil", which issued on April 11, 1989, and is directed to preparing highly pure substantially amorphous cefuroxime axetil by spray drying. The '833 patent also expires on July 29, 2003. 6. GlaxoSmithKline filed this suit for infringement of the 181 patent under 35 U.S.C. § 271(e) et seq. and the Declaratory Judgment Act on September 20, 2000. On June 25, 2001, GlaxoSmithKline filed an amended complaint adding a claim for declaratory judgment of infringement of the '833 patent. 7. On March 7, 2001 and July 20, 2001, Apotex filed its Answer and Counterclaims and Amended Answer and Counterclaims. Apotex denied infringement and asserted counterclaims for noninfringement and invalidity of both the '181 and '833 patents. 8. On June 5, 2002, the Court held a hearing on GlaxoSmithKline's motion for preliminary injunction and, on June 10, 2002, issued an order finding in GlaxoSmithKline's favor on all of the mandatory preliminary injunction factors and granting a preliminary injunction. Apotex's appeal of the preliminary injunction order has been rejected by the U.S. Court of Appeals for the Federal Circuit in an unpublished order dated April 22, 2003. 9. GlaxoSmithKline is the holder of a New Drug Application ("NDA") approved by the Food and Drug Administration ("FDA") for tablets containing, as the active ingredient or drug substance, highly pure, substantially amorphous cefuroxime 1017 axetil for use as a broad spectrum antibiotic. GlaxoSmithKline markets and sells its tablets under the tradename Ceftin®. 10. GlaxoSmithKline filed its Ceftin® NDA on July 30, 1985. 11. GlaxoSmithKline received approval for its Ceftin® NDA in December 1988. GlaxoSmithKline Ceftin® tablets were launched immediately after receiving FDA approval. 12. Antibiotics are substances which either kill or inhibit the growth of bacteria. There are many classes of antibiotics; the most well known are the penicillins. 13. The antibacterial properties of penicillins are conferred by the β-lactam ring in the structure of the molecule that allows it to bind to proteins in the cell wall of the bacterium. This binding by the antibiotic prevents the cell wall from budding effectively, thereby inhibiting bacterial replication. 14. Although penicillins are broad spectrum antibiotics, they are not effective against all bacteria. Also, as a result of wide use, penicillin-resistant strains of bacteria have developed. These resistant bacteria develop during infections when mutant bacteria produce β-lactamases that can open the β-lactam ring of the penicillin moleculedestroying its effectiveness. This β-lactamase penicillin-resistance is then transmitted by the bacteria from one population to another. 15. Closely related structurally to penicillins are the cephalosporins. Like penicillins, the cephalosporins have a β-lactam ring and both classes are generally referred to as β-lactam antibiotics. 16. The cephalosporin molecule differs from that of the penicillin molecule in that the ring adjacent to the β-lactam ring is a six-membered ring as opposed to the five-membered ring of penicillin. This six-membered ring adds rigidity to the β-lactam ring and protects it from bacterial J-lactamase attack. 17. In the 1970s, GlaxoSmithKline's scientists synthesized a new drug substance, cefuroxime, a broad spectrum cephalosporin antibiotic. Cefuroxime was disclosed and claimed in the patent no. 3974153. 18. Cefuroxime (the carboxylic acid) is not readily absorbed into the bloodstream from the small intestine, and cannot be administered orally because it is poorly absorbed into the bloodstream from the gastrointestinal tract and does not provide the systemic effect required for effective treatment. As a result, cefuroxime is only administered by injection. 19. Because orally administered medicines are preferred for ease of use, cost efficiency and patient compliance, GlaxoSmithKline invested in a development effort to synthesize an orally absorbable form of cefuroxime, that is, one which could pass through the wall of the small intestine into the bloodstream on oral administration. The goal was to synthesize a prodrug of cefuroxime, that is, a compound that could cross the intestinal wall to allow the cefuroxime, the portion of the molecule that imparts antibacterial activity, to be cleaved off the prodrug and enter the circulation. 20. GlaxoSmithKline synthesized many cefuroxime derivatives, including different cefuroxime esters. Among these was a class of cefuroxime esters that showed promise as orally absorbable compounds, including cefuroxime axetil in which an axetil group is attached to the cefuroxime molecule. 21. Cefuroxime axetil is absorbed through the intestinal wall, the axetil portion of the molecule is cleaved off by enzymes and cefuroxime is released to provide its antibiotic activity. 1018 22. The discovery of the new class of cephalosporins, the cefuroxime esters, became the subject matter of U.S. Patent No. 4,267,320 ("the '320 patent" or "Gregson patent"), which issued to GlaxoSmithKlihe on May 12, 1981. The '320 patent, entitled "Cephalosporin Antibiotics," generally discloses many different cefuroxime esters, including the preferred ester, cefuroxime axetil. Further development was needed to achieve the necessary high bioavailability and stability in orally administrable form. The '320 patent has now expired. Glaxo's Dr. Gordon Gribble testified that the '320 patent generally discloses at least 15-20 different cefuroxime esters, including the preferred ester, cefuroxime axetil. 23. Apotex filed an Abbreviated New Drug Application ("ANDA") No. 65-069 on April 5, 2000, seeking approval to market a generic cefuroxime axetil drug product containing a co-precipitate cefuroxime axetil, sorbitol and zinc chloride. 24. 35 U.S.C. § 271(e)(2) states "[I]t shall be an act of infringement to submit (A) an application under section 505(j) of the Federal Food, Drug, and Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent". 25. Apotex submitted its ANDA under section 505(j) of the Federal Food, Drug, and Cosmetic Act. 26. Unlike an NDA submitted by an innovator pharmaceutical company, an ANDA submission by a generic company like Apotex does not require any independent efficacy or safety testing. The ANDA applicant must only demonstrate that its generic version is bioequivalent to the innovator medicine and otherwise relies on the data provided by the innovator. 27. The products that Apotex intends to market are 250 mg and 500 mg cefuroxime axetil tablets, which are bioequivalent to GlaxoSmithKline's Ceftin® tablets and impart the same medical benefit as Ceftin® tablets. 28. The antibacterial component of Apotex's co-precipitate is cefuroxime axetil. 29. Apotex's ANDA states that zinc chloride acts as a stabilizer and sorbitol acts as a solubilizer. 30. The Executive Summary of Apotex's ANDA states that the sorbitol and zinc chloride components of the co-precipitate are excipients. 31. Apotex's ANDA describes the manufacturing process for its tablets. Apotex's manufacturing process starts with pure crystalline cefuroxime axetil USP containing no more than 1.5% of related compounds. The crystalline cefuroxime axetil is added, together with 9% sorbitol and 1% zinc chloride, to a solution of acetone and water. These materials are mixed at high speed for a period of time until a clear solution is obtained. The resulting solution is spray dried under nitrogen producing an amorphous co-precipitate in the form of amorphous particles. This co-precipitate consists of 90% cefuroxime axetil, 9% sorbitol and 1% zinc chloride by weight. 32. The solvents that Apotex dissolves the crystalline cefuroxime axetil, sorbitol and zinc chloride in are acetone and water. Acetone is an organic solvent that is a ketone. Acetone and water evaporate during spray drying. 33. Each particle of amorphous co-precipitate contains hundreds of thousands, if not millions of molecules of cefuroxime axetil, sorbitol and zinc chloride randomly interdispersed in the proportions of 90% cefuroxime axetil, 9% sorbitol and 1% zinc chloride. 34. The cefuroxime axetil molecules, the sorbitol molecules and the zinc chloride 1019 molecules contained in the co-precipitate are randomly dispersed throughout the co-precipitate and have no long range order. 35. Apotex collects, compacts and mills the co-precipitate to form granules. Apotex then mixes the granulated co-precipitate with pharmaceutical excipients namely crospovidone, sodium bicarbonate and magnesium stearateand compresses this blend of materials into a tablet core. Apotex sprays a film coating on the tablet core, producing a film coated tablet. The crospovidone and sodium bicarbonate are disintegrates, assisting in the dissolution of the tablet. The magnesium stearate acts as a lubricant. 36. The specification for Apotex's tablets in its ANDA requires that the tablets contain no more than 2% "related impurities" which are further described as "degradation products" in the specification itself. 37. FDA granted final approval of Apotex's ANDA on October 2, 2002. 38. Apotex's Dr. Sherman testified that Apotex conducted several years of research and development to arrive at the co-precipitate that is contained in Apotex's ANDA. 39. Apotex's package insert as approved by FDA identifies Apotex's drug product as follows: Cefuroxime Axetil Tablets contains an amorphous co-precipitate of cefuroxime axetil, sorbitol, and zinc chloride. Cefuroxime axetil has the following structural formula [formula omitted] Cefuroxime Axetil Tablets are film-coated and contain the equivalent of 250 or 500 mg of cefuroxime as cefuroxime axetil. Cefuroxime Axetil Tablets contain the inactive ingredients crospovidone, hydroxyethyl cellulose, magnesium stearate, polyethylene glycol, sodium bicarbonate, sorbitol, titanium dioxide and zinc chloride. USP Release Test Pending. 40. Solid substances can exist in crystalline or amorphous form. In a crystalline solid, the molecules are arranged in a regularly repeating, long range order, often called a lattice. In an amorphous solid, the molecules have no regular, long range order, but are randomly distributed in relation to one another. Amorphous is often described as the "absence of crystallinity." 41. The terms "crystalline" and "amorphous" have no application to a single molecule or a few molecules of a substance. 42. The crystalline form or a drug substance is more stable than its amorphous form. 43. A technique for determining whether a substance or preparation is crystalline or amorphous is X-ray powder diffraction. 44. Claim 1 of the '181 patent reads as follows: Cefuroxime axetil in amorphous form essentially free from crystalline material, and having a purity of at least 95% aside from residual solvents. 45. Claim 2 of the '181 patent reads as follows: The product of claim 1 which contains less than 3% m/m of impurities. 46. Claim 3 of the '181 patent reads as follows: The product of claim 1 in the form of a mixture of R and S isomers. 47. Claim 4 of the '181 patent reads as follows: The product of claim 3 wherein the mole ratio of R to S isomers is from 3:2 to 2:3. 48. Claim 5 of the '181 patent reads as follows: The product of claim 3 wherein the mole ratio of R to S isomers is from 0.9:1 to 1.1:1. 1020 49. Claim 6 of the '181 patent reads as follows: The product of claim 1 in the form of hollow microspheres. 50. Claim 7 of the '181 patent reads as follows: A method of combating bacterial infections of the human or animal body which comprises administering to the said body orally or rectally an effective amount of a highly pure substantially amorphous form of cefuroxime axetil as claimed in claim 1. 51. Claim 8 of the '181 patent reads as follows: An antibacterial pharmaceutical composition containing an antibacterially effective amount of cefuroxime axetil according to claim 1 in admixture with one or more pharmaceutical carriers or excipients. 52. Claim 9 of the '181 patent reads as follows: The antibacterial pharmaceutical composition of claim 8 wherein the cefuroxime axetil is present in the form of a mixture of R and S isomers. 53. Claim 10 of the '181 patent reads as follows: The antibacterial pharmaceutical composition of claim 8 wherein the mole ratio of R to S isomers is from 3:2 to 2:3. 54. Claim 11 of the '181 patent reads as follows: The antibacterial pharmaceutical composition of claim 8 wherein the mole ratio of R to S isomers is from 0.9:1 to 1.1:1. 55. Claim 12 of the '181 patent reads as follows: The antibacterial pharmaceutical composition of claim 8 wherein the cefuroxime axetil is in the form of hollow microspheres. 56. Claim 13 of the '181 patent reads as follows: The antibacterial pharmaceutical composition of claim 8 adapted for oral administration. 57. Claim 14 of the '181 patent reads as follows: The antibacterial pharmaceutical composition of claim 13 in dosage unit form containing from 50 to 500 mg of cefuroxime axetil. 58. Claim 1 of the '833 patent reads as follows: A process for preparing a highly pure, substantially amorphous form of cefuroxime axetil which comprises preparing a highly pure solution of cefuroxime axetil and spray drying said solution to recover highly pure, substantially amorphous cefuroxime axetil. 59. Claim 2 of the '833 patent reads as follows: The process of claim 1 wherein the solution contains an organic solvent selected from the group consisting of ketones, alcohols, acetonitrile, tetrahydrofuran, dioxan, esters, chlorinated solvents, homogenous mixtures of at least two of the aforesaid solvents, `homogenous mixtures of at least one of the aforesaid solvents and water. 60. Claim 3 of the '833 patent reads as follows: The process of claim 1 wherein the concentration of cefuroxime axetil in the solution prior to resovery is at least 1% m/m. 61. Claim 4 of the '833 patent reads as follows: The process of claim 1 wherein the concentration of cefuroxime axetil in the solution prior to recovery is at least 10% m/m. 62. Claim 5 of the '833 patent reads as follows: 1021 The process of claim 1 wherein the spray drying is effected in the presence of an inert gas. 63. The spray drying process described in the '833 patent starts with highly pure cefuroxime axetil in a solution containing an organic solvent. The solution is sprayed into a column through which heated gas is passing. The solvent flash-evaporates leaving the solid form of the cefuroxime axetil in a collection vessel. By this method, the highly pure cefuroxime axetil is recovered in substantially amorphous form. The '181 patent states that it is essential that the starting cefuroxime axetil material be at least as pure as the final product. 64. Today there are only a handful of commercially available solid oral drug products in which the drug substance is in amorphous form. Spectracef®, identified by Apotex's was approved in 2000-18 years after the '181 patent application was filed. 65. During the 15 years that Ceftin® has been marketed, GlaxoSmithKline has realized nearly $4 billion in sales, with yearly sales surpassing $300 million by 1993. 66. GlaxoSmithKline's U.S. sales for Ceftin® were close to $250 million in 2001. 67. GlaxoSmithKline projected only $50 million in sales of Ceftin® for 2002 because of the launch of Ranbaxy's generic cefuroxime axetil product. 68. During the 15 years that Ceftin® has been marketed, it was the most prescribed oral cephalosporin antibiotic in existence. 69. Hampel and Hawley's Encyclopedia of Chemistry (3d ed.1973) defines "purity" as: A pure preparation of a chemical substance in the absolute sense is one in which all of the molecules in the preparation of the substance are molecules of the substance. No other molecules differing in any way may be present. 70. Longman's Dictionary of Scientific Usage (2d ed.1981) defines "pure" as: Applied to an element o[r] compound which is made up of, a only atoms of the element; b only ions or molecules of the compound, e.g., a pure gold is a sample of gold which does not contain any other element; b a sample of pure water (i.e., chemically pure water) should contain only molecules of H2O. 71. Hawley's Condensed Chemical Dictionary (11th ed.1987) defines "purity" and "pure substance" as: purity, chemical. A substance is said to be pure when its physical and chemical properties coincide with those previously established and recorded in the literature, and when no change in these properties occurs after application of the most selective fractionation techniques. In other words, purity exists when no impurity can be detected by any experimental procedure. There are a number of recognized standards of purity, purification. Removal of extraneous materials (impurities) from a substance of mixture by one or more separation techniques. A pure substance is one in which no impurity can be detected by any experimental procedure. 72. Impurity is defined by the FDA Guidance for ANDAs: Impurities in Drug Substances as, "[a]ny component of the drug substance that is not the chemical entity defined as the drug substance." The FDA also defines an impurity in a drug product (i.e., drug substance admixed with excipients) as "[a]ny component of the drug product that is not the chemical entity defined as the drug substance (i.e. active ingredient] or an excipient in the drug product." (FDA Guidance of the Industry Q3B Impurities in New Drug Products). 1022 73. The McGraw-Hill Dictionary of Technical and Scientific Terms (5th ed.1994) defines excipient as "[a]ny inert substance combined with an active drug for preparing an agreeable or convenient dosage form." 74. In 1999, GlaxoSmithKline sued Ranbaxy Pharmaceuticals, Inc. ("Ranbaxy") in the District of New Jersey for infringement of the '181 patent. The district court issued an injunction against Ranbaxy preventing it from marketing generic cefuroxime axetil. In an August 20, 2001, opinion, the Federal Circuit vacated the district court's injunction, determining that the court's claim construction was erroneous and that the claim limitation "`essentially free from crystalline material' means a maximum crystalline content of less than 10%." 75. Ranbaxy thereafter launched its cefuroxime axetil product, and is currently competing with GlaxoSmithKline's Ceftin®. The underlying suit remains pending in the United States District Court for the District of New Jersey. 76. In 2002, GlaxoSmithKline and its third-party distributor, Professional Detailing, Inc. ("PDI"), mutually terminated its distribution agreement with GlaxoSmithKline concerning Ceftin®. 77. On June 7, 2000, Apotex's Dr. Yuri Goldberg sent a letter to a subcommittee of the United States Pharmacopoeia ("USP"). In this letter to USP's "USPFDA Monograph Subcommittee" Dr. Goldberg stated: Herein we would like to address the concerns expressed by the Committee by providing some additional information. 1. In our previous correspondence we did not mean to indicate that Apotex Cefuroxime Axetil Tablets contain a mixture of crystalline and amorphous Cefuroxime Axetil. 2. Our process of manufacturing Cefuroxime Axetil tablets converts crystalline Cefuroxime Axetil (starting material) to amorphous Cefuroxime Axetil in the form of a co-precipitate with sorbitol. This co-precipitate is further employed in the manufacturing of Apotex Cefuroxime Axetil Tablets. There is no crystalline material in our tablet product. 78. Thereafter, the USP requested that Apotex respond to certain issues concerning dissolution testing. In response, Dr. Goldberg forwarded to the UPS's dissolution and bioavailability subcommittee the complete package of correspondence between Apotex and USP, including the June 7, 2000, letter, on August 1, 2000. Apotex's Drs. Sherman and Cappuccino were listed as copy recipients on Dr. Goldberg's correspondence. 79. The active ingredient of Apotex's Cefuroxime Axetil Tablets 250 mg and 500 mg is the same as that of Glaxo Wellcome's Ceftin® Tablets 250 mg and 500 mg. 80. There is no detectable crystalline material in Apotex's amorphous co-precipitate. 81. Dr. Barry Sherman is the chairman of Apotex. He has a Bachelor and a Masters degree in Engineering and Aeronautics and a Ph.D. in Systems Engineering. 82. Dr. Sherman decides what drugs Apotex will develop and market based on their historic sales levels, and whether he can design around the various barriers in order to bring the product to market. 83. Dr. Sherman is not a patent attorney. Although he had notice of GlaxoSmithKline's patents, he did not obtain an opinion from patent counsel on noninfringement or invalidity of the '181 and '833 patents before Apotex filed its 1023 ANDA, relying instead on his own review of the patents. 84. Dr. Sherman did not review the file histories of the patents in suit before deciding to file the ANDA. 85. A patent application that Dr. Sherman wrote states, "[h]owever, when the cefuroxime axetil is used in the pure amorphous form or in the form of a co-precipitate, the zinc salt will preferably be added, in the process of making the pure amorphous cefuroxime axetil or the co-precipitate, in order to get a more intimate mixture of the zinc salt with the cefuroxime axetil." 86. The Notice of Allowance for Dr. Sherman's patent states, "[t]he following is an examiner's statement of reasons for allowance: The prior art fails to teach or suggest a solid pharmaceutical composition comprising the active agent cefuroxime axetil and zinc chloride as a stabilizer for the active agent." ADDITIONAL FINDINGS 87. The crystalline form of a drug substance is typically preferred over the amorphous form because crystalline forms are more stable and thus provide reliable delivery and adequate shelf life. 88. Crystals are also intrinsically purer than amorphous solids because the ordered structure of the crystal tends to exclude impurities which do not conform to the crystalline structure. 89. Before the introduction of Ceftin®, all commercially available β-lactam antibiotics, e.g., penicillins and cephalosporins, were in crystalline form. 90. Crystalline cefuroxime axetil did not dissolve sufficiently in gastrointestinal fluid to make an effective oral medicine. A medicine that does not dissolve adequately cannot pass via the intestinal wall membrane into the bloodstream, and is simply excreted by the individual via his/ her intestinal tract without providing a medical benefit. 91. The '181 patent describes the preferred purity level of the claimed drug substance in terms of the level of impurity and identifies typical impurities. 92. Cefuroxime axetil exists as two isomers, the R and S isomers. The R and S isomers of cefuroxime axetil contain the same chemical components, but are mirror images of each other. This is unlike the isomers with different connectivity (e.g. the E-isomer and &utrif;2-isomers) that are considered impurities of cefuroxime axetil. 93. According to the patent, a mixture of R and S isomers of the cefuroxime axetil is preferred because the mixture has substantially improved solubility compared to a single isomer. 94. Excipients are inert additives or carriers, not the active drug substance, which are deliberately added to the active drug substance to affect its performance or manufacturability in specific ways. 95. In addition to the drug substance in highly pure substantially amorphous form, the 181 patent further describes and claims a pharmaceutical composition that is an admixture of the highly pure, substantially amorphous cefuroxime axetil "with one or more pharmaceutical carriers and/or excipients". 96. The cefuroxime axetil-containing compositions formulated with excipients may contain between 1% and 99% of the active drug substance. 97. The '181 patent also teaches that in a composition for use in tablets, capsules or granules, excipients can be formulated by spray drying the excipients along with the active drug substance. 98. On April 5, 2000, Apotex filed ANDA No. 65-069, seeking immediate approval to market its generic version of 1024 GlaxoSmithKline's Ceftin® medicine. According to its ANDA, Apotex proposes to market 250 mg and 500 mg cefuroxime axetil tablets. 99. Unlike an NDA submitted by an innovator pharmaceutical company, an ANDA submission to the FDA by a generic company like Apotex does not require any independent efficacy or safety testing. The applicant must only demonstrate that the generic version of the medicine is bioequivalent to the innovator medicine. Otherwise the ANDA applicant relies on the data provided by the innovator. 100. Apotex begins the manufacturing process by dissolving pure crystalline cefuroxime axetil (i.e., impurities of no more than 2.0%) in a solution of acetone, water, sorbitol and zinc chloride. Acetone (a ketone) and water are solvents that evaporate during spray drying. 101. Sorbitol is an excipient that is added to foster the dissolution of the cefuroxime axetil in solution. Zinc chloride is an excipient that helps stabilize the cefuroxime axetil and prevents the formation of impurities. 102. Using nitrogen, Apotex then spray dries the solution with an APV Spray Dryer to yield a spray dried mixture of cefuroxime axetil, sorbitol and zinc chloride. Apotex refers to this spray dried mixture as "cefuroxime axetil co-precipitate 90% A.S. Spray Dried". The "90%" refers to the fact that the initial solution contains 90% cefuroxime axetil and 10% excipients1% zinc chloride and 9% sorbitol. 103. The spray drying process converts the crystalline cefuroxime and axetil to amorphous cefuroxime axetil. The spray dried material is collected, compacted and milled to form granules. 104. Additional excipients crospovidone, sodium bicarbonate and magnesium stearate, are added to the granules, which are further compacted and milled to form the tablet core. Both crospovidone and sodium bicarbonate are disintegrants, assisting in the dissolution of the tablet. The magnesium stearate is a lubricant. A film coating is sprayed on the tablet core to give a film coated tablet. The specifications for the tablets require that they contain less than 2% impurities aside from residual solvents. 105. With full knowledge of the GlaxoSmithKline patents in suit, Dr. Sherman designed a process for formulating cefuroxime axetil tablets. Instead of mixing the drug substance (cefuroxime axetil) with excipients after spray drying, as disclosed in the preferred embodiment of the '181 patent, Apotex mixes the active ingredient cefuroxime axetil with two excipients first, spray dries that mixture, and then combines the mixture with the remaining excipients. 106. Dr. Sherman's process consists of nothing more than the timing of the addition of the excipients during manufacture. Tablets made according to this process are the subject of Apotex's ANDA No. 65-069. CONCLUSIONS OF LAW 107. Declaratory jurisdiction exists where a company seeking to manufacture a generic version of a patented medicine has, by virtue of its ANDA filing, made meaningful prepiaration to market an infringing product before the expiration of the patentholder's exclusive rights. Glaxo, Inc. v. Novopharm, Ltd., 110 F.3d 1562, 1570 (Fed.Cir.1997); Glaxo, Inc. v. Apotex USA Inc., 1997 WL 282742 at 3, 1997 U.S. Dist. LEXIS 7260 at 9 (N.D.Ill. May 18, 1997), vacated and remanded on other grounds, 153 F.3d 1366 (Fed.Cir.1998); 35 U.S.C. § 271(a). 108. This court has declaratory judgment jurisdiction over this case because an actual controversy exists between the parties 1025 28 U.S.C. §§ 2201 and 2202. Glaxo Group Ltd. v. Apotex, Inc., 130 F.Supp.2d 1006 (2001). 109. The importation and sale in the United States of a product or composition manufactured by an infringing process before the relevant patent expires is an act of infringement. 35 U.S.C. § 271(g); Biotec Biologische Naturverpackungen GmbH v. Biocorp, Inc., 249 F.3d 1341, 1352 (Fed. Cir.2001); Ajinomoto Co., Inc. v. Archer-Daniels Midland Co., 228 F.3d 1338, 1348 (Fed.Cir.2000). 110. Determining whether an accused device infringes a patent requires a two-step analysis. First, the claims of the patent must be construed to determine the proper scope. Second, a determination must be made as to whether the properly construed claims read on the accused device. Interactive Gift Express Inc. v. CompuServe, Inc., 231 F.3d 859, 864-65 (Fed.Cir.2000). The first step, claim construction, is a question of law for the court. Vivid Technologies, Inc. v. American Science & Eng'g, Inc., 200 F.3d 795, 804 (Fed.Cir.1999). Only those terms in controversy need be construed, and only to the extent necessary to resolve the controversy. Id. To construe the claim, the court first examines the intrinsic evidence, consisting of the patent claims, specification and, if in evidence, the prosecution history. Id. If the intrinsic evidence alone is insufficient, extrinsic evidence, such as expert testimony, inventor testimony, dictionaries, technical treatises, articles and prior art not cited, may be examined. Id. Intrinsic evidence is preferred because it encompasses the materials in the public record. Therefore, if the intrinsic evidence alone resolves any ambiguity, it is improper to rely on extrinsic evidence. Id. The Federal Circuit has set forth the hierarchy of intrinsic evidence. Vitronics, 90 F.3d at 1577. First, the court examines the language of the claim. Id. "The starting point for any claim construction must be the claims themselves." Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.Cir. 1999). If the claim language is clear on its face, the court's consideration of the rest of the intrinsic evidence is "restricted to determining if a deviation from the clear language of claim is specified. Deviation may be necessary if a patentee [has chosen] to be his own lexicographer and use terms in a manner other than their ordinary meaning." Interactive Gift, 231 F.3d at 865 (quoting Vitronics, 90 F.3d at 1582). A deviation from the clear language may also be necessary if a patentee has relinquished a potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference. Id. If the claim language is not clear on its face, then the court considers the rest of the intrinsic evidence to resolve, if possible, the lack of clarity. The court must take care, however, to avoid reading limitations in the specification into the claims. Id. Once the claims have been properly construed, the court must determine whether the accused device infringes the claims, either literally or under the doctrine of equivalents. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir. 1998). Literal infringement is a question of fact and may be decided on summary judgment when no genuine issue of material fact exists, such that no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device. Id. Infringement under the doctrine of equivalents is also a question of fact: "whether a reasonable jury could find that the accused device contains elements that are equivalent to each of the properly construed claim limitations." Id. at 1354. 1026 111. The parties' dispute the meaning of two terms in the claims of the patents in suit. The court first addresses the term "cefuroxime axetil ... having a purity of at least 95% aside from residual solvents". Having a Purity of at Least 95% 112. The specifications of the patents in suit discuss the surprising realization that the pure amorphous form of cefuroxime axetil has reliable stability, "despite the known tendency of amorphous materials to have inferior chemical stability." ('181 patent, col. 2, 15-26). A description of typical impurities follows the discussion of purity of the cefuroxime axetil drug substance. (Col. 2, lines 36-38). 113. The term "purity" has a specific, defined meaning as a chemical term. For example, Hawley's Condensed Chemical Dictionary 980 (11th ed.1987) defines purity as: Purity, chemical.A substance is said to be pure when the physical and chemical properties coincide with those previously established and recorded in the literature, and when no change in these properties occur after application of the most selective fractional techniques. Also purification... a pure substance is one in which no impurity can be detected by an experimental procedure. In other words, purity exists when no degrading, unwanted impurities are present. 114. The FDA guidance (FDA Guidance for the Industry Q3B Impurities in New Drug Products) defines an impurity as "[a]ny component of the drug product that is not the chemical entity defined as the drug substance [i.e. active ingredient] or an excipient in the drug product." The defined meaning of impurities in the pharmaceutical sciences is that they are substances that are not deliberately added to a chemical composition. In other words, impurities are degradation products of the active ingredient, also referred to as related compounds. 115. With respect to cefuroxime axetil, the recognized compendia specifically identified the impurities of the compound. Both the British Pharmacopeia and the European Pharmacopeia list four impurities of cefuroxime axetil: &utrif;2-isomer, E-isomer (also referred to as anti-isomer), cefuroxime axetil carboxylic acid and cefuroxime. 116. Purity must be considered in the context of the arthere, the pharmaceutical industry. Pharmaceutical products nearly always consist of an active ingredient and excipients. Carriers or excipients, are the inactive compounds used in formulating the active drug substance into an ingestible form. Excipients are deliberately added to a drug substance to affect its performance or manufacturability in specific ways but their addition does not affect the "purity" of the active ingredient or render the active ingredient in the product "impure." Excipients are expected to be added to the drug substance to formulate a usable medicine, and those of skill in the pharmaceutical art understand that excipients are not impurities. 117. Dictionaries use the same definition of excipient: "Any inert substance combined with an active drug for preparing an agreeable or convenient dosage form". (McGraw-Hill Dictionary of Technical and Scientific Terms, 5th Ed.) 118. The specifications of the patents in suit, described purity separate and apart from the discussion of excipients and provide a detailed description of the use of excipients to formulate pure amorphous cefuroxime axetil. 119. The applicants for the '181 and '833 repeatedly stressed that their invention involved the ability to use a pure amorphous cefuroxime axetil, contrary to 1027 the conventional wisdom that commercial cephalosporin products in pure crystalline form provide the best balance of properties. 120. Nothing in the patent specifications or the file histories demonstrates that the applicants sought to define the claim terms "pure" and "purity" differently than their ordinary technical meaning. See e.g., Vanguard Products Corp. v. Parker Hannifin Corp., 234 F.3d, 1370, 1372 (Fed.Cir.2000). 121. The court construes the term "having a purity of a least 95%" to mean, as it did in its June 10, 2002, Preliminary Injunction Order, to one of skill in the pharmaceutical art that the cefuroxime axetil claimed in the '181 patent must be 95% co-precipitate and have no more than 5% degrading, unwanted impurities. Such impurities do not include excipients, such as sorbitol and zinc chloride; which perform specific functions, added by defendant to the cefuroxime axetil in its product. Amorphous 122. The parties also dispute the import of the term "amorphous" in "cefuroxime axetil in amorphous form essentially free from crystalline material". The meaning of "amorphous" according to one skilled in the art is not in dispute. 123. In a prior action involving the '181 patent, Glaxo Group Ltd. v. Ranbaxy Pharmaceuticals, Inc., 262 F.3d 1333, 1337 (Fed.Cir.2001), the Federal Circuit construed the above quoted limitation as meaning "a maximus of crystalline content of less than 10%." 124. By spray drying its starting solution containing crystalline cefuroxime axetil, Apotex concededly converts the crystalline material to an amorphous state. Apotex admits that the 90% co-precipitate is entirely amorphous. 125. Apotex's spray dried co-precipitate is not a new drug substance. The co-precipitate is a dispersion or mixture of the cefuroxime axetil and two excipients, sorbitol and zinc chloride. 126. Apotex's argues is that the amorphicity of its cefuroxime axetil itself cannot be determined in the context of its "90% co-precipitate," and that for this reason it does not meet the limitation which calls for "[c]efuroxime axetil in amorphous form essentially free from crystalline material". The court rejects this argument for a number of reasons. First, Ranbaxy defined the limitation as meaning less than 10% crystalline. Apotex admitted in its June 7, 2000, letter to USP FDA that there is "no crystalline cefuroxime axetil" in the Apotex product, and that its process "converts crystalline cefuroxime axetil (starting material) to amorphous cefuroxime axetil in the final form of a co-precipitate with sorbitol." (See § 77 above.) The court rejects as not credible Dr. Cappuccino's attempts to disavow the admissions in Apotex's June 7, 2000, letter. Prior to trial no attempts were made to clarify any inaccuracies. Therefore, "since there is no crystalline cefuroxime axetil in the Apotex product, the cefuroxime axetil must be amorphous". Second, in its ANDA, Apotex stated that the "active ingredient" in its product is the same as that of plaintiffs Ceftin® tablets. Thus, Apotex admits that the drug substance in its product is the same cefuroxime axetil as in plaintiffs tablets, rather than a new or other active drug substance. Apotex also represented to FDA, and FDA found, that the bioavailability of the "active ingredient" in the Apotex product is equivalent to that of plaintiffs Ceftin®. It is undisputed that the level of bioavailability of plaintiffs product can be achieved only by using amorphous cefuroxime axetil. All attempts to reach a satisfactory level of bioavailability using crystalline cefuroxime axetil (in any purity) failed. Thus, by establishing 1028 that Apotex's product has the equivalent bioavailability as plaintiffs product, defendant has established exactly what it told the FDA: that there is no crystalline cefuroxime axetil in its product. In so doing, defendant has also established that plaintiffs product must contain amorphous cefuroxime axetil. Moreover, both Dr. Sherman and Apotex's expert, Dr. Shefter, testified that the co-precipitate is nether a new chemical entity nor a new drug substance, and that the antibacterial affect of Apotex's product comes solely from the cefuroxime axetil in the co-precipitate. To achieve the necessary affect, that cefuroxime axetil must be amorphous. Thus, the court rejects Apotex's argument that the co-precipitate is a "new" material, the contents of which cannot be characterized as either amorphous or crystalline, and concludes that Apotex's product contains amorphous cefuroxime axetil. Literal Infringement 127. The claims define the metes and bounds of the invention, and only they may be infringed. SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 882 (Fed.Cir. 1988); Corning Glass Works v. Sumitomo Elec. USA Inc., 868 F.2d 1251 (Fed.Cir.1989). 128. The patentee's burden is to show literal infringement by a preponderance of the evidence. Braun v. Dynamics Corp., 975 F.2d 815 (Fed.Cir.1992). 129. A patent claim is literally infringed if the accused product or process contains each element of the claim. Tate Access Floors v. Maxcess Tech., 222 F.3d 958, 964 (Fed.Cir.2000); Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1054 (Fed.Cir.1988). If each element is present, literal infringement exists and "that is the end of it." Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). 130. In determining infringement, the accused product is compared to the patent claims, not the patentee's product. Zenith Laboratories, Inc. v. Bristol-Myers Squibb Co., 19 F.3d 1418, 1423 (Fed.Cir.1994); Glaxo Inc. v. TorPharm Inc., 153 F.3d 1366, 1373 (Fed.Cir.1998). 131. Infringement of a single claim is infringement. Panduit Corp. v. Dennison Mfg. Co. Inc., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987); Intervet America v. Kee-Vet Laboratories, 887 F.2d 1050, 1055 (Fed.Cir.1989), and entitles the patentee to the full panoply of statutory remedies. Intervet Am. v. Kee-Vet. Lab., 887 F.2d 1050, 1055 (Fed.Cir.1989). 132. The analysis with respect to literal infringement of claim 1 is as follows: For the reasons stated above, the cefuroxime axetil in Apotex's proposed tablets is amorphous with no crystalline content. Thus, Apotex's proposed products will meet the first limitation of claim 1, which reads: "Cefuroxime axetil in amorphous form essentially free from crystalline material." 133. Claim 1 further recites: "having a purity of at least 95% aside from residual solvents". Based on the court's construction that "having a purity of at least 95%" means that the cefuroxime axetil must have no more than 5% degrading, unwanted impurities, and that "impurities" do not include excipients such as sorbitol and zinc chloride, the court concludes that Apotex will literally infringe the second element of claim 1. Apotex's ANDA indicates that its products contain no more than 1% impurities. 134. Apotex has argued throughout this case that its product does not infringe the "purity" limitation because its co-precipitate consists by weight of 90% cefuroxime axetil, 9% sorbitol and 1% zinc chloride. Thus, Apotex argues that its 1029 product cannot have "a purity of at least 95%." There is no question that the cefuroxime axetil used to manufacture the Apotex co-precipitate is highly pure. Apotex starts with highly pure (less than 5% degrading, unwanted impurities) cefuroxime axetil. The addition of the excipients sorbitol and zinc chloride do nothing to alter the purity of the cefuroxime axetil. Indeed, Dr. Sherman admitted that the addition of zinc chloride does not alter the "purity" of the amorphous cefuroxime axetil in his patent application[3] claiming the use of zinc chloride to stabilize cefuroxime axetil. In that document, Dr. Sherman stated that: In order to enable maximum bioavailability, the cefuroxime axetil in the composition will preferably be in pure amorphous form or in the form of a coprecipitate with a water-soluble diluent. The zinc salt may be added to the composition at any point in the process of production of the composition. However, when the cefuroxime axetil is used in pure amorphous form as in the form of a co-precipitate, the zinc salt will preferably be added, in the process of making the pure amorphous cefuroxime axetil or the co-precipitate, in order to get a more intimate mixture of the zinc salt with the cefuroxime axetil. In the case of pure amorphous cefuroxime axetil, the process of manufacture will preferably be to dissolve the zinc salt along with the cefuroxime axetil in suitable solvent and then evaporate the solvent, preferably by spray-drying, in order to produce amorphous material comprising cefuroxime axetil and a small amount of zinc salt intimately mixed therein. (Emphasis added.) By stating in this patent application that the zinc chloride is added in the process of manufacturing the "pure amorphous cefuroxime axetil" Dr. Sherman has admitted that the zinc chloride is an excipient that has no effect on the "purity" of the cefuroxime axetil, or on the amphorous characteristic of the cefuroxime axetil. The court rejects Dr. Sherman's attempt to characterize the statement as a "mistake" or "typographical error." The document makes numerous distinctions between the manufacture of pure amorphous cefuroxime axetil and the manufacture of a "coprecipitate." Each process includes the addition of zinc chloride. Accordingly, because the Apotex product contains cefuroxime axetil in amorphous form essentially free from crystalline material, and having a purity of at least 95% aside from residual solvents, the court concludes that Apotex's product will infringe claim 1 of the '181 patent.[4] 135. The '883 patent discloses and claims the preparation of highly pure, substantially amorphous cefuroxime axetil by use of a spray drying process. The process starts with highly pure cefuroxime axetil in a solution containing an organic solvent. The solution is sprayed into a heated column through which heated gas is passing. The solvent flash-evaporates, leaving the solid form of the cefuroxime axetil in a collection vessel. By this method, the highly pure cefuroxime axetil is recovered in substantially amorphous form. 1030 136. The term "highly pure solution of cefuroxime axetil" that appears in claim 1 of the '833 patent refers to a starting solution containing highly pure cefuroxime axetil. The term "pure," like the term "purity," means the absence of impurities. The patent states that it is essential that the starting cefuroxime axetil material be at least as pure as the final product. The patent teaches that this highly pure starting material may be spray dried in combination with any number of accepted pharmaceutical excipients in solution. 137. The first element of claim 1 of the '883 patent reads as follows: A process for preparing a highly pure, substantially amorphous form of cefuroxime axetil which comprises ...." Apotex's manufacturing process converts crystalline cefuroxime axetil to amorphous cefuroxime axetil which has less than 2% impurities. This cefuroxime axetil is highly pure and 100% amorphous. Thus Apotex, proposed manufacturing process will infringe this element of the claim. 138. Claim 1 further recites, "preparing a highly pure solution of cefuroxime axetil ..." Apotex starts its manufacturing process using highly pure crystalline cefuroxime axetil which is dissolved in acetone and water, along with the excipients sorbitol and zinc chloride. Apotex spray dries the solution of acetone, water, cefuroxime axetil, sorbitol and zinc chloride. Apotex dissolves highly pure crystalline cefuroxime axetil, in acetone and water, along with sorbitol and zinc chloride, to form a solution. Apotex's process thus meets this second element of claim 1. 139. Claim 1 finally requires: spray drying said solution to recover highly pure substantially amorphous cefuroxime axetil. The acetone and water are volatile solvents and are driven off, resulting in the recovery of highly pure substantially amorphous cefuroxime axetil. The level of impurities present in Apotex's spray dried product (no more than 2%) is virtually unchanged from the level that is present in the starting cefuroxime axetil (1.5%). Accordingly, Apotex's process will literally infringe claim 1 of the '833 patent. 140. Claim 2 of the '833 patent reads as follows: 2. The process of claim 1 wherein the solution contains an organic solvent selected from the group consisting of ketones, alcohols, acetonitrile, tetrahydrofuran, dioxan, esters, chlorinated solvents, homogeneous mixtures of at least two of the aforesaid solvents, homogeneous mixtures of at least one of the aforesaid solvents and water." In its spray drying process, Apotex uses acetone and water, both solvents, to form a homogeneous solution with cefuroxime axetil. Thus, Apotex's process will infringe claim 2 of the '833 patent. 141. Claims 3 and 4 of the '833 patent recite: 3. The process of claim 1 wherein the concentration of cefuroxime axetil in the solution prior to recovery is at least 1% m/m. 4. The process of claim 1 wherein the concentration of cefuroxime axetil in the solution prior to recovery is at least 10% m/m. Apotex's manufacturing process will infringe claims 3 and 4 of the '833 patent because the concentration of cefuroxime axetil in Apotex's solution is approximately 16.7% on a mass/mass basis. 142. Claim 5 of the '833 patent requires: The process of claim 1 wherein the spray drying is effected in the presence of an inert gas." Apotex's spray drying process is effected in the presence of nitrogen, an inert gas, 1031 as required by claim 5. Accordingly, Apotex's process will infringe claim 5 of the '833 patent. Validity 143. A validity analysis begins with the presumption of validity. An issued patent is presumed valid. 35 U.S.C. § 282. 144. Each claim of the patent is a separate embodiment of the invention. Bio-Technology General Corp. v. Genentech, Inc., 80 F.3d 1553, 1562 n. 8 (Fed.Cir. 1996), and the presumption of validity applies separately to each patent claim. See Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1266-67 (Fed.Cir.1991) ("Each claim carries an independent presumption of validity."). 145. An "accused infringer who raises patent invalidity as a defense bears the burden of showing invalidity by facts supported by clear and convincing evidence." Robotic Vision Systems, Inc. v. View Engineering, Inc., 189 F.3d 1370, 1377 (Fed.Cir.1999); Weatherchem Corp. v. J.L. Clark, Inc., 163 F.3d 1326, 1334-35 (Fed.Cir.1998). 146. Apotex argues that the claims of the patents in suit are invalid alternatively for anticipation and obviousness. 35 U.S.C. §§ 102, 103. 147. A patent claim is invalid for anticipation where each and every element of the claimed invention is disclosed in a single prior art reference. In re Paulsen, 30 F.3d 1475 (Fed.Cir. 1994). 148. A patent claim is invalid for obviousness where the differences between the subject matter patented and the prior art are such that the subject matter as a whole would have been obvious to a person having ordinary skill in the art at the time the invention was made. 35 U.S.C. § 103. 149. An obviousness analysis requires the court's assessment of, (1) the scope and content of the prior art, (2) the level of ordinary skill in the art, (3) the differences between the prior art and the claimed invention, and (4) objective indicia of obviousness. Graham v. John Deere Co., 383 U.S. 1, 17-19, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). 150. Apotex has been unable to identify a single prior art reference that discloses all the limitations of any of the claims of the patents in suit. Without such a reference, Apotex asserts that various elements are "inherently" disclosed by the general "teachings" of the '320 patent. 151. What is "inherently" disclosed in a prior art reference is a question of fact that may arise both in the context of anticipation under 35 U.S.C. § 102 and obviousness under 35 U.S.C. § 103. In re Grasselli, 713 F.2d 731, 735 (Fed.Cir.1983). As noted above, anticipation requires the disclosure of each limitation of a patent claim in a single prior art reference. Scripps Clinic & Research Found, v. Genentech, Inc., 927 F.2d 1565, 1575 (Fed.Cir.1991). To the extent an element is not specifically described, inherency requires that the missing element(s) are "necessarily present" and "would be so recognized by persons of ordinary skill" in the relevant art. Finnigan Corp. v. ITC, 180 F.3d 1354, 1365 (Fed.Cir.1999). 152. The '320 patent does not expressly disclose either how to prepare highly pure, substantially amorphous cefuroxime axetil or that such a compound might have sufficient bioavailability and stability to be a useful pharmaceutical product. 153. To establish that the '181 patent is anticipated by the '320 patent, Apotex offered the testimony of Dr. Jay Siegel. Dr. Siegel admitted that the '320 patent does not specifically disclose all the limitations of any of the claims of the '181 patent. Thus, Dr. Siegel testified that the various elements of the '181 patent are inherently 1032 disclosed by the general teachings of the '320 patent. To support this conclusion Dr. Siegel performed various experiments purporting to follow the '320 patent in order to clarify its teachings. 154. Among the cefuroxime esters disclosed in the '320 patent, Examples 1, 8 and 9 described preparations of cefuroxime axetil. The cefuroxime axetil is in a crystalline form in Examples 8 and 9 (col. 9, line 54col. 10, line 63), and in an impure amorphous form in Example 1. 155. Because only Example 1 of the '320 patent describes preparation of amorphous cefuroxime axetil, Dr. Siegel testified that his experiments "used the teachings" in Example 1 to prepare and isolate cefuroxime axetil as defined by the claims of the '181 patent. He admits, however, that he did not faithfully follow Example 1, electing instead to follow Example 1 generally, but using certain methods disclosed in the other examples of the '181 patent, which examples admittedly produced crystalline cefuroxime axetil. In particular, Dr. Siegel: (1) bypassed the first reaction step by buying highly pure cefuroxime sodium instead of synthesizing cefuroxime potassium; (2) increased the molar ratio of 1-AEB from a 1:1 ratio to approximately a 1.4:1 ratio; (3) doubled the time for reacting the cefuroxime with the 1-AEB to synthesize the cefuroxime axetil; and (4) reversed the extraction steps. At trial Dr. Siegel offered no persuasive reason for not following example 1 precisely, and the court accepts the testimony of GlaxoSmithKline's expert, Dr. Gribble, that each of Dr. Siegel's alterations was likely to lead to a purer product. The court finds it highly significant that Dr. Siegel had been given and read the '181 patent prior to performing his experiments. Dr. Siegel knew what result he needed to reach. Thus, even if he was acting in the best of faith, that knowledge likely had an effect on his decision, making the credibility of his experiments highly suspect. The court also rejects Dr. Siegel's supposition that everyone else who had tested Example 1 reached the wrong result. To support his conclusion that his experiments were correct, Dr. Siegel testified that the optical rotation value of+84 for crop 2 in the '320 patent is a "typographical error" and should have read +34. This testimony by Dr. Siegel is not credible in light of the undisputed facts that (a) Dr. Gregson's notebook pages recording the original experiment listed the optical rotation as +84, and (b) Dr. Gregory's tests on the original crop 2 samples resulted in the same +84 optical rotation. The "presumption of validity under 35 U.S.C. § 282 carries with it a presumption that the Examiner did his duty and knew what claims he was allowing." Internet, 887 F.2d at 1054. Thus, Apotex's "burden is especially difficult when the prior art was before the PTO examiner during prosecution of the application." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1467 (Fed.Cir.1990). Dr. Siegel's testimony does not provide the kind of clear and convincing evidence necessary to sustain such a heavy burden. To the contrary, the court finds that his experiments were tainted as described above, and that his conclusions were not credible. Accordingly, the court concludes that Apotex has failed to carry its burden of provingby clear and convincing evidence or otherwisethat either the '181 or '833 patents is invalid for anticipation by inherency. Apotex also asserts that the '181 patent claims are invalid for obviousness under 35 U.S.C. § 103, again relying on the '320 patent. However, its own expert, Dr. Siegel, admitted that nothing in the '320 patent teaches or suggests to one skilled in the art that highly pure substantially amorphous cefuroxime axetil would 1033 have the right combination of properties to make a commercially viable product. The '320 patent contains no suggestion that highly pure amorphous cefuroxime axetil has better bioavailability than the crystalline form or that highly pure amorphous cefuroxime axetil would have sufficient stability. The court concludes that one of ordinary skill in the art would not have reasonably selected the "teachings" of the '320 patent selected by Dr. Siegel, absent Dr. Siegel's knowledge of the '181 patent. In this regard, the court concludes that one of "ordinary skill" in the pharmaceutical art would possess a B.S. degree with 3 to 5 years experience. Accordingly the court concludes that Apotex has failed to prove by clear and convincing evidence that the '181 or '833 patents are invalid for obviousness. Willfulness 156. "A potential infringer having actual notice of another's patent rights has an affirmative duty of care." Spindelfabrik Suessen-Schurr, Stahlecker & Grill GmbH v. Schubert & Salzer Machinenfabrik Aktiengesellschaft, 829 F.2d 1075, 1084 (Fed.Cir.1987). An act of infringement is thus deemed willful when the infringer is aware of another's patent and fails to exercise due care to avoid infringement. Electro Medical Sys., S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1056 (Fed.Cir.1994); Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1109 (Fed. Cir.1986). This standard of care typically requires an opinion from competent patent counsel prior to engaging in any potentially infringing activities. Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389-90 (Fed.Cir.1983). To establish willfulness, GlaxoSmithKline must demonstrate by clear and convincing evidence, considering the "totality of the circumstances," that Apotex willfully infringed its patent. Electro Medical, 34 F.3d at 1056. 157. Having carefully reviewed the record herein, the court concludes that Apotex's ANDA filing is permeated by a lack of due care. Dr. Sherman, Apotex's CEO and the architect of Apotex's noninfringement argument, testified that he has never obtained an opinion of independent patent counsel on either non-infringement or invalidity in this case.[5] Although he is not a qualified attorney, Dr. Sherman testified that he felt no' need to obtain an independent opinion because of his own review of the patents in suit. Without an opinion from independent patent counsel, and without having reviewed the file histories of the patents in suit, Dr. Sherman decided to file Apotex's ANDA. At trial, when confronted with these facts, Dr. Sherman could refer only to the hearsay declaration of a hired expert witness that was filed in Canada[6] as justification for proceeding with his infringing generic product. The court finds that, under any standard, this does not qualify as "due care". Electro Medical, 34 F.3d at 1056; Kloster Speedsteel AB v. Crucible Inc., 793 F.2d 1565, 1580 (Fed.Cir.1986). 1034 158. Instead of an independent opinion from patent counsel, Apotex offers a non-precedential administrative proceeding in Canada as evidence of its good faith litigation in this case. This is unacceptable. Apotex knew in May 1999 that an opinion from independent counsel was a preferred prerequisite to any attempt to refute a charge of willfulness by the district court's decision in SmithKline Beecham Corp. v. Apotex Corp., 1999 WL 311697 (N.D.Ill. 1999). The fact that Apotex had not obtained such an opinion at the time of filing its ANDA in April 2000, approximately one year after that decision was issued by a judge of this court, confirms that Apotex deliberately failed to take due care to respect GlaxoSmithKline's patent rights. 159. Dr. Sherman, who can well afford patent counsel, testified that he had been eyeing Ceftin® as a targeted product for years with expectations of achieving hundreds of millions of dollars in sales. Thus, although he was well aware of GlaxoSmithKline's patents in suit and understood from other U.S. lawsuits the nature of a willfulness charge and the requirement to obtain an opinion of patent counsel, he caused Apotex to file its ANDA without any legal analysis of these patent rights. 160. Dr. Sherman's attempt to rely on the imminent issuance of an Apotex patent directed, as he put it, to Apotex's co-precipitate, as evidence of non-infringement and lack of willfulness, is unpersuasive. First, the Apotex patent is directed to the use of zinc chloride as a stabilizer of the amorphous cefuroxime axetil in the Apotex co-precipitate, as stated in the Examiner's Reasons for Allowance. Second, its issuance is irrelevant to the question of infringement of GlaxoSmithKline patents. See Eli Lilly & Co. v. Barr Labs. Inc., 222 F.3d 973, 987 (Fed.Cir.2000). Finally, in the specification of this patent, which was written by Dr. Sherman, he specifically describes the co-precipitate as containing amorphous cefuroxime axetil. Faced with this admission of infringement in the application he drafted, Dr. Sherman labeled his statement a "typographical error". 161. This attempt to evade as "errors" or "mistakes" other significant admissions Apotex made, for example in its dealings with the USP, was also the centerpiece of the testimony of another Apotex witness. Dr. Cappuccino, the: person ultimately responsible for these admissions, disavowed any responsibility for the statements during direct examination and characterized them as unauthorized. However, the court finds Dr. Cappuccino's testimony was not credible, and that as shown on cross-examination, Dr. Cappuccino had himself instructed that these statements be written. 162. Apotex's expert, Dr. Siegel, also found the "typographical error" to be a convenient explanation. During his testimony, Dr. Siegel attempted to justify his experimental results by insisting that the '320 patent contains a "typographical error". Dr. Siegel persisted in this charade although the '320 patent disclosure was confirmed by Dr. Gregson's laboratory notebook recording the original data, and by the later-filed declaration of Dr. Gregory during prosecution of the '181 patent. 163. Dr. Sherman's cavalier ANDA filing and the non-credible trial testimony of Apotex's witnesses sire classic examples of conduct that clearly and convincingly demonstrates willfulness. See Comark Comm., Inc. v. Harris Corp., 156 F.3d 1182, 1190 (Fed.Cir.1998); Bott v. Four Star Corp., 807 F.2d 1567, 1572 (Fed.Cir. 1986). 164. Apotex's attempt to avoid a finding of willfulness on the ground that it did not provide a written certification when its ANDA was filed does not avoid the clear evidence of willfulness, particularly in view of the various admissions of infringement contained in its submissions to the FDA, 1035 which Apotex attempted to contradict or minimize at trial. Accordingly, the court finds that the filing of the ANDA by Apotex triggered GlaxoSmithKline's infringement claim and constituted willful infringement in view of the circumstances described above. 165. A holding of willful infringement is sufficient to make a case exceptional and entitles the opposing party to its attorney fees. 35 U.S.C. § 285; Avia Group Int'l. Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1567 (Fed.Cir.1988). Such an award is appropriate here. The court finds that as a result of Apotex's ANDA filing, without a reasonable basis for believing that it had a right to market its generic product prior to patent expiration, GlaxoSmithKline has been compelled to prosecute an infringement claim at great expense. Because Apotex's infringement is prospective in nature, patent damages are unavailable. Under these circumstances, an award of attorney fees would properly resolve the action. CONCLUSION For the reasons set forth above the court concludes that Apotex's proposed generic product will infringe the '181 and '833 patents and enters a permanent injunction enjoining Apotex from manufacturing its product for the life of those patents. The court also concludes that GlaxoSmithKline has met its burden of proving willful infringement by clear and convincing evidence. GlaxoSmithKline is therefore entitled to its costs and attorneys' fees incurred in prosecuting this suit and is directed to submit an application to the court pursuant to L.R. 54.3 within 28 days of this order. NOTES [1] This order contains both findings of fact ("Findings") and conclusions of law ("Conclusions"). To the extent that any Findings may be deemed conclusions of law, they shall also be considered Conclusions. To the extent that any Conclusions may be deemed findings of fact, they shall also be considered Findings. See Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). [2] Additional findings of the court are indicated in bold lettering. To the extent not contained herein, the court adopts the parties' Revised Stipulation of Uncontested Facts filed on February 28, 2003. [3] On July 24, 2000, Dr. Sherman applied for a patent entitled "Stabilized Cefuroxime Axetil." Dr. Sherman wrote the patent application and amendments. [4] Because the Apotex product will literally infringe claim 1 of the '181 patent, it infringes the patent, Internet, 887 F.2d at 1055, and comparison of Apotex's product to the remaining claims is unnecessary. Nonetheless, the court agrees with plaintiff that the Apotex product will infringe the remaining claims of the '181 patent. [5] The court finds it relevant that Dr. Sherman has failed to obtain an opinion of counsel in other infringement suits and has been charged previously with willful infringement shortly before he caused Apotex to file the ANDA which precipitated this suit. See SmithKline Beecham Corp. v. Apotex Corp., 1999 WL 311697 at 2 (N.D.Ill. May 13, 1999). [6] As noted by the Federal Circuit in its order affirming this court's granting of the preliminary injunction herein (at p. 7, n. 1), "the Canadian judgment construing the Canadian patent and applying Canadian patent law does not control" the decision in the instant case.	{ "pile_set_name": "FreeLaw" }
767 S.W.2d 219 (1989) Ira TATE and Lucille Tate, Appellants, v. COMMODORE COUNTY MUTUAL INSURANCE COMPANY, Appellee. No. 05-88-00643-CV. Court of Appeals of Texas, Dallas. March 1, 1989. Rehearing Denied April 7, 1989. 220 Gary L. Johnson, Dallas, for appellants. Elizabeth L. Phifer, Dallas, for appellee. Before WHITHAM, BAKER and THOMAS, JJ. WHITHAM, Justice. The trial court imposed abuse of discovery sanctions upon the appellant-plaintiffs, Ira Tate and Lucille Tate, in the form of striking the Tates' pleadings and thereafter entering an order of dismissal with prejudice in favor of the appellee-defendant, Commodore County Mutual Insurance Company. The dispute centers on the trial court's order requiring the Tates to produce their sole interrogatory-designated expert witness for deposition. The Tates insist that the nonparty witness was not an agent or employee subject to their control. Under the facts of the present case, we conclude that the trial court did not abuse its discretion in ordering the witness produced, in imposing sanctions for failure to produce, and in dismissing the Tates' cause with prejudice. Further, we conclude that the trial court's actions did not deprive the Tates of due process. Accordingly, we affirm. At oral argument, both parties agreed that the only issue for trial on the merits was the fair market value of the Tates' stolen truck under a policy of insurance covering the truck and issued by the insurance company. On February 6, 1987, the Tates filed suit against the insurance company alleging breach of an insurance contract and violations of the Texas Insurance Code. The insurance company answered on March 3, 1987, and discovery proceeded. On March 26, 1987, the insurance company forwarded to the Tates a request for production, inspection and copying of documents and other things, and interrogatories. Though the production request was timely answered by the Tates, the interrogatories were not. The Tates filed no objections to the interrogatories. On July 15, 1987, the insurance company filed a motion for sanctions to obtain answers to the interrogatories. No hearing was held on the motion as the Tates complied with the discovery request on the date of the hearing, August 7, 1987. On September 9, 1987, the 221 insurance company served a second set of interrogatories on the Tates. The Tates failed to timely answer these interrogatories and filed no objections to these interrogatories. On November 30, 1987, the insurance company filed a motion to compel answers to its second set of interrogatories. No hearing was held on the motion as the Tates complied with the discovery request prior to the January 15, 1988 hearing. In response to the insurance company's first set of interrogatories, the Tates named Sunday Sides as an expert witness regarding the fair market value of the stolen truck. On January 4, 1988, the insurance company noticed Sides for a deposition on January 11, 1988. On January 11, 1988, Sides's deposition was reset by agreement to February 26, 1988. On February 26, 1988, Sides failed to appear for his deposition. Appellants' attorney advised appellee's attorney that the fault lay with him as he did "not have an opportunity to get a hold of Mr. Sides." On March 8, 1988, the insurance company filed its motion for sanctions and requested that the trial court strike the Tates' pleading, or in the alternative, deny the Tates the right to call at time of trial any expert regarding the fair market value of the truck. The trial court heard the motion on April 15, 1988. As of that date, the Tates had filed no response to the motion for sanctions. However, the Tates' counsel was present at the hearing. At the April 15, 1988 hearing, the trial court ordered the Tates to produce Sides for a deposition prior to the date of the trial setting on April 26, 1988, or risk the sanctions requested in the insurance company's March 8, 1988 motion. (The April 15, 1988 order appears in our record as a docket sheet entry.) On April 22, 1988, the insurance company filed its amended motion for sanctions as Sides failed to appear for a deposition noticed for April 18, 1988. On April 26, 1988, both parties appeared before the trial court for hearing on the insurance company's amended motion for sanctions. The trial court granted sanctions in the form of striking the Tates' pleadings due to the Tates' failure to comply with the trial court's April 15, 1988 order to produce Sides for deposition. Subsequently, the trial court entered an order of dismissal with prejudice on May 10, 1988. At the outset, we face a technical matter that we must address before reaching the real dispute between the parties. We address this technical matter out of an abundance of precaution in light of a sentence found in the Tates' brief. We quote that sentence shortly. On our record, the trial court's April 15, 1988 order was not reduced to writing by the trial court and entered of record. Indeed, the Tates' brief tells us that "[n]o order [of April 15, 1988] was prepared or signed pursuant to the trial court's apparent ruling." In general, orders of the trial court to be effectual must be entered of record. Manoogian v. Lake Forest Corp., 652 S.W.2d 816, 819 (Tex.App.-Austin 1983, writ ref'd n.r.e.). Moreover, the docket sheet cannot stand as an order or substitute for such record. Harris County Welfare Unit v. Caloudas, 590 S.W.2d 596, 598 (Tex.Civ.App.-Houston [1st Dist.] 1979, no writ). Indeed, a court's docket notation dated 7-27-72 which recites: "Bill of Review granted and new trial granted as to property rights only" has no legal effect, because it is undisputed that said docket notation was never made a part of the court's minutes, and no formal order was ever entered by the trial court pursuant thereto. Any order or judgment to be effective must be entered of record. Kocman v. Kocman, 581 S.W.2d 516, 518 (Tex.Civ.App.-Waco 1979, no writ). Nevertheless, we conclude that in the present case we need not hold the trial court's April 15, 1988 order to be ineffective because not entered of record. Furthermore, we conclude that we need not hold that the docket sheet cannot stand as an order or substitute for such record. We reach these conclusions because whether the April 15, 1988 order was entered of record is a nonissue in the present case. We treat the matter as a nonissue for two reasons. First, the Tates do not complain that the April 15, 1988 docket notation was never a part of the trial court's minutes and do not complain that no formal written order was ever entered by the trial court of 222 record. All that the Tates say about the matter is the one sentence quoted above from their brief "[n]o order [of April 15, 1988] was prepared or signed pursuant to the trial court's apparent ruling." Nowhere do the Tates argue that want of an order of record denies the trial court the right to impose the sanctions in question. Second, at oral argument, the Tates conceded that what the trial court pronounced on April 15, 1988, "was an order." Consequently, we conclude that the fact that the April 15, 1988 order was not reduced to writing by the trial court and entered of record does not destroy the effectiveness of the order. It follows, therefore, that the want of an order of record does not deny the trial court the right to impose the sanctions in question. Thus, we return to matters in controversy. All parties agree that the issue centers on the trial court's April 15, 1988 order that the Tates produce their interrogatory-designated expert witness for a deposition. In their first point of error, the Tates contend that the trial court abused its discretion in ordering them to produce a nonparty witness for deposition who was not an agent or employee subject to their control. In their second point of error, the Tates contend that the trial court abused its discretion in granting the insurance company's motion for sanctions and entering an order dismissing their cause of action with prejudice. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985) (nonparty defendant-employee fact witnesses were noticed for depositions but failed to appear.) (Held that trial court had authority to strike answer pursuant to then Rule 215anow incorporated into Rule 215). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer, 701 S.W. 2d at 242. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242. To determine the trial judge's guiding rules and principles in imposing sanctions for discovery abuse, we must look to the Texas Rules of Civil Procedure as promulgated and amended by the Supreme Court as well as the decisions of appellate courts of this State and of the United States. Downer, 701 S.W.2d at 242. The Texas Rules of Civil Procedure pertaining to discovery and sanctions for noncompliance have been amended several times, culminating in Rule 215a as it existed at the time Downer came to trial, and now embodied in Rule 215. The use of sanctions by trial courts to prevent discovery abuse has developed steadily over the past several years. These changes reflect the continuing pattern both to broaden the discovery process and to encourage sanctions for failure to comply. Downer, 701 S.W.2d at 242. Indeed, use of sanctions are approved not only to assure compliance with the discovery process but also to deter those who might be tempted to abuse discovery in the absence of a deterrent. See Downer, 701 S.W.2d at 242. Furthermore, trial courts are encouraged to use sanctions to the degree necessary to assure compliance with discovery procedures and deter abuse of the process. Downer, 701 S.W.2d at 242. Thus, the Supreme Court has told us in no uncertain terms that the trial court is to be given the broadest discretion in imposing sanctions for discovery abuse. Chemical Exchange Indus. v. Vasquez, 709 S.W.2d 257, 260 (Tex.App.- Houston [14th Dist.]), rev'd in part on other grounds, 721 S.W.2d 284 (Tex.1986). This is the case where the sanction is harsh as is the case of dismissal of the cause of action. See Chemical Exchange, 709 S.W. 2d at 260. Relying upon various Texas rules of civil procedure, including Rule 215(2), the Tates insist that the trial court abused its discretion in ordering them on April 15, 1988, to produce nonparty Sides for deposition because Sides was not an agent or employee subject to their control. On the 223 other hand, the insurance company asserts that under the facts of the present case, the focus should be on Rule 215(3) which provides that "[i]f the court finds a party is abusing the discovery process in ... resisting discovery ... the court ... may impose any sanction authorized by paragraphs (1), (2), (3), (4), (5) and (8) of paragraph 2b of this rule." Subparagraph (5) of Rule 215(2)(b) allows the trial court to strike the abusing party's pleadings and dismiss the abusing party's action with prejudice. Hence, the insurance company argues that there is no need to address whether Sides was a party or an agent or employee subject to the Tates' control. The insurance company contends that there is no need to address the issue because the record reflects that the Tates have a case history of abusing the discovery process in resisting discovery and, therefore, were properly sanctioned by the trial court by the dismissal of their cause of action with prejudice. In support of its contention, the insurance company points out that on two prior occasions it was forced to file motions for sanctions to obtain the Tates' compliance with unobjected-to interrogatory discovery requests. In addition, the insurance company urges that, while the Tates' counsel appeared cooperative as to producing Sides for deposition, Sides failed to appear for the reset deposition of February 26, 1988, because of the admitted fault of the Tates' counsel. This brings us to the proceedings in the failed deposition of February 26, 1988. The record of the proceedings are before us as an unchallenged exhibit to the insurance company's motion for sanctions pertaining to Sides's deposition. To demonstrate the asserted admitted fault of the Tates' counsel in failing to produce Sides for the reset deposition of February 26, 1988, the insurance company points to the explanation given by the Tates' counsel in the deposition proceedings that he did "not have an opportunity to get a hold of Mr. Sides." Indeed, the proceedings in the failed deposition of February 26, 1988, reflect that the Tates' counsel, in response to the insurance company's counsel's remarks on the record, went on to state "I told [insurance company's counsel] that we would be glad to make Mr. Sides available at her office at a mutually convenient time." Therefore, we conclude that the Tates undertook the responsibility of producing Sides for deposition. Consequently, we conclude further that it thereby became immaterial whether Sides was an agent or employee subject to the Tates' control. We reach this conclusion because the Tates in effect represented to the insurance company that Sides was subject to their control and could be produced for deposition. Furthermore, we note that the Tates filed no response to the insurance company's motion for sanctions heard on April 15, 1988, which resulted in the trial court's order of that date requiring the Tates to produce Sides for deposition prior to the April 26, 1988, trial date. Hence, on April 15, 1988, the trial court proceeded on the basis that the Tates made no objection to producing Sides for deposition and advanced no reason why they could not do so. In this connection, we note that it was not until April 26, 1988, that the Tates filed a response to the insurance company's motion for sanctions pertaining to Sides's deposition and presented by affidavit and counsel's testimony their position as to production of Sides for deposition. This affidavit and testimony sought to show that on previous occasions the Tates' counsel had advised prior attorneys in defense counsel's law firm handling this case that the insurance company needed to subpoena Sides because Sides was not under the Tates' control, was not a voluntary witness, and "may not be very cooperative." We conclude that we need not address the merits of the Tates' response to the insurance company's motion for sanctions for two reasons. First, the affidavit and testimony came too late. We reason that this affidavit and testimony should have been received by the trial court on April 15, 1988; not on the April 26, 1988 trial date. We conclude that by standing silent on April 15, 1988, the Tates' counsel led the trial court to believe that the Tates would produce Sides for deposition. Again we note the record of the Tates' counsel's remark on the failed deposition proceedings 224 of February 26, 1988, to wit: "I told [insurance company's counsel] that we would be glad to make Mr. Sides available to her office at a mutually convenient time." Second, the trial court might not have credited the affidavit and testimony. We conclude that the April 26, 1988 hearing on the motion for sanctions was akin to a nonjury trial. In a nonjury case, the trial court is the judge of the credibility of the witnesses and of the weight to be given their testimony, since he has the opportunity to observe the demeanor of the witnesses on the stand and he may believe all, none, or part of the witnesses' testimony. The trial court's findings of fact will not be disturbed on appeal if supported by any evidence of probative force. Fortner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 687 S.W.2d 8, 12 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). The qualifications and credibility of witnesses are matters to be evaluated by the fact finder. Great American Insurance Co. v. Murray, 437 S.W.2d 264 (Tex.1969). In a nonjury trial the judge is the trier of fact and it is his prerogative and responsibility to weigh the credibility and the proof of the evidence. Bormaster v. Henderson, 624 S.W.2d 655, 659 (Tex. App.-Houston [14th Dist.] 1981, no writ). In the present case, the trial court's case file reflected that the Tates' actions with respect to interrogatory-discovery forced the insurance company to file two motions for sanctions. In addition, the trial court's case file reflected that the Tates undertook to produce Sides for deposition and failed to do so. Indeed, when on April 15, 1988, the trial court ordered the Tates to produce Sides for deposition, the Tates' counsel, on our record, stood silent before the trial court and made no oral or written response to the motion for sanctions then before the court. We know that the Tates' counsel was present at the April 15, 1988 hearing because he so testified during his testimony given at the April 26, 1988 hearing at which the trial court struck the Tates' pleadings. Moreover, at the April 26, 1988 hearing the Tates' counsel stated that the Tates had on that day filed their response to the insurance company's motion for sanctions with counsel's affidavit attached. Therefore, under the facts of the present case, we conclude that the record contains no indication that on April 15, 1988, the trial court was capricious, arbitrary, or unreasonable in ordering the Tates to produce Sides for deposition prior to April 26, 1988. We reach this conclusion because the trial court might well have found that the Tates had abused the discovery process in resisting discovery. In light of the above, we conclude that the provisions of Rule 215(3) control disposition of the present case. Therefore, the trial court was authorized to strike the Tates' trial pleadings and to dismiss their action with prejudice under Rule 215(2)(b)(5). Moreover, on this record we cannot say that the trial court abused its discretion in ordering the Tates to produce a nonparty witness for deposition who was not an agent or employee subject to the control of the Tates. We overrule the Tates' first point of error. Furthermore, on this record we cannot say that the trial court abused its discretion in granting the insurance company's motion for sanctions and entering an order dismissing the Tates' cause of action with prejudice. We overrule the Tates' second point of error. Consequently, we hold that there was no abuse of discretion in the application of the sanction rule in the present case. In overruling the Tates' first and second points of error, we are not to be read as holding that litigants are obligated to produce for deposition nonparty discovery-designated expert witnesses who are not agents or employees subject to the control of the designating party. We emphasize that our disposition of the present case is based on the specific facts and circumstances before us. In the present case, a litigant's resistance to discovery sought brought the ultimate sanction; not the posture of the discovery-designated expert witness. Moreover, we express no opinion of our views on the trial court's imposition of the ultimate sanction other than our holding that there was no abuse of discretion in the application of the sanction rule. In this connection, we are mindful of the admonition that the mere fact that a trial judge 225 may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242. We are mindful also that the trial court may have imposed the ultimate sanction to assure compliance with the discovery process in that court and to deter litigants appearing in that court who might be tempted to abuse discovery in the absence of a sanction. See Downer, 701 S.W.2d at 242. As did our sister court of appeals, we read Downer to tell us in no uncertain terms that the trial court is to be given the broadest discretion in imposing sanctions for discovery abuse. See Vasquez, 709 S.W.2d at 260. As will be seen, our holding that there is no abuse of discretion in the application of the sanction rule in the present case is important to our disposition of the Tates' third point of error. In their third point of error, the Tates contend that the trial court denied them due process by dismissing their cause of action with prejudice. The Tates argue that dismissal of their cause of action with prejudice because of their inability to produce for deposition a nonparty, nonemployee, nonagent witness deprives them of their right to due process guaranteed by the Fourteenth Amendment of the United States Constitution as well as Article 1, Section 19 of the Texas Constitution. Citing Kilgarlin and Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 ST. MARY'S L.J. 767 (1984) [Hereinafter Sanctions for Discovery Abuse ], the Tates maintain that examination of the sanctions authorized by Rule 215(2)(b) must be made with due process concerns in mind. The Tates assert that whether the remedy for the subject discovery abuse is tailored to redress the resulting prejudice to the other party is a due process concern. Again, relying upon Sanctions for Discovery Abuse, the Tates insist that, consistent with due process requirements, ultimate sanctions, such as imposed in the present case, cannot be imposed unless the failure to make discovery is willful, in bad faith, or due to some fault of the disobedient party. We conclude that reasoning of the United States Supreme Court is instructive and dispositive of the Tates' contentions. It does not violate due process for a state court to strike the answer and render a default judgment against a defendant who failed to comply with a pretrial discovery order. See Hammond Packing Co. v. Arkansas, 212 U.S. 322, 353, 29 S.Ct. 370, 381, 53 L.Ed. 530 (1909); Insurance Corp. of Ireland v. Compagnie Des Bauxites, 456 U.S. 694, 705, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982). Such a rule is permissible as an expression of the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression or failure to produce the proof ordered. Insurance Corp. of Ireland, 456 U.S. at 705, 102 S.Ct. at 2105, citing Hammond Packing. Thus, the preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense. Insurance Corp. of Ireland, 456 U.S. at 705, 102 S.Ct. at 2105. Due process is violated only if the behavior of the defendant will not support the Hammond Packing presumption. Insurance Corp. of Ireland, 456 U.S. at 706, 102 S.Ct. at 2106. A proper application of a sanction rule will, as a matter of law, support the Hammond Packing presumption. See Insurance Corp. of Ireland, 456 U.S. at 706, 102 S.Ct. at 2106. If there is no abuse of discretion in the application of the sanction rule, then the sanction is nothing more than the invocation of a legal presumption, or what is the same thing, the finding of a constructive waiver. See Insurance Corp. of Ireland, 456 U.S. at 706, 102 S.Ct. at 2106. In Insurance Corp. of Ireland, the Court enunciated these principles in the context of sanctions imposed upon an errant state court defendant suffering default judgment as the ultimate sanction. In the present case, we apply the principles but converted to sanctions imposed upon errant state court plaintiffs suffering a dismissal with prejudice as the ultimate sanction. We conclude, therefore, that it does not violate due process for a state court to strike the trial pleadings of the *226 plaintiff and enter an order dismissing the plaintiff's cause of action with prejudice against a plaintiff who failed to comply with a discovery order. We conclude further that such a rule is permissible as the expression of the undoubted right of the Texas Supreme Court to create a presumption of fact as to the bad faith and untruth of a plaintiff's trial pleading begotten from the suppression or failure to produce the proof ordered. We reach this conclusion because the preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted cause of action. We conclude further that in the present case the Tates' behavior supports this presumption. Indeed, the Tates' refusal to produce Sides was material to the administration of due process. Sides was the Tates' only designated expert as to the one factual dispute between the parties. We have concluded earlier that there has been no abuse of discretion in the application of the sanction rule. Consequently, we conclude that in the present case this proper application of the discovery rule supports the presumption as a matter of law. The presumption existing as a matter of law, we conclude that we must presume the bad faith and untruth of the Tates' trial pleadings begotten from the suppression or failure to produce Sides' deposition testimony. As to their federal claim, we conclude further, therefore, that the trial court did not deny the Tates due process by dismissing their cause of action with prejudice. As to their state claim, we see no reason not to interpret the Texas Constitution as we have the United States Constitution. Consequently, it follows that the trial court did not deprive the Tates of their right to due process guaranteed by the Fourteenth Amendment of the United States Constitution and Article 1, Section 19 of the Texas Constitution. We overrule the Tates' third point of error. Affirmed.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, No. 68275-0-1 Respondent, v. UNPUBLISHED OPINION PIERCE ALFONSO DUBOIS, Appellant. FILED: JUL " 8 2013 Per Curiam—Pierce DuBois appeals his convictions for second degree murder and first degree unlawful possession of a firearm. He contends that the court's "to convict" instructions misstated the law by telling the jury, "Ifyou find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty." According to DuBois, the court should have instructed the jury that it "may" convict because there is no "duty to convict" under federal and Washington state law. We rejected the same argument in State v. Megqyesv, 90 Wn. App. 693, o 958P.2d 319. review denied, 136Wn.2d 1028 (1998). abrogated on other \ qrounds by State v. Recuenco, 154Wn.2d 156, 110 P.3d 188(2005). OurcourtsF «2_ have adhered to Megqyesv and the Washington Supreme Court has repeatedly j> dp; denied review. See, State v. Bonisisio. 92 Wn. App. 783, 793-94, 964 P.2d 1222 c? T.C: ro (1998), review denied, 137Wn.2d 1024 (1999): State v. Brown, 130 Wn. App No. 68275-0-1/2 767, 770-71, 124 P.3d 663 (2005). DuBois offers no persuasive basis for departing from our holding in Meggyesy. In a pro se statement of additional grounds, DuBois argues that his statements to police were inadmissible because he did not waive his rights during the interrogation. "Under Miranda v. Arizona,™ a confession is voluntary, and therefore admissible, if made after the defendant has been advised concerning rights and the defendant then knowingly, voluntarily and intelligently waives those rights." Statev.Aten. 130Wn.2d 640, 663, 927 P.2d 210 (1996). Voluntariness of a confession is determined by the totality of the circumstances under which it was made. Aten, 130 Wn.2d at 663-64. Denial of a suppression motion is reviewed by independently evaluating the record to determine whether substantial evidence supports the findings and whether the findings support the conclusions. State v. Cunningham, 116 Wn. App. 219, 226, 65 P.3d 325 (2003) (citing State v. Broadaway, 133 Wn.2d 118, 130, 942 P.2d 363 (1997)). We review legal conclusions de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). DuBois' claim focuses on the statements he made to the detectives at police headquarters.2 All ofthese statements were made after DuBois had been informed of his rights. Initially, officers at the scene of the arrest issued the Miranda warning. A patrol car video captured the advisement and acknowledgement of those rights. Two officers testified that DuBois did not 1384 U.S. 436, 86 S. Ct 1602, 16 L. Ed. 2d 694 (1966). 2 DuBois made several statements at the scene of his arrest that were admitted at trial, but he appears to dispute only the statements made to detectives at police headquarters. No. 68275-0-1/3 invoke his right to silence or his right to an attorney at any time during their contact with him. After officers transported DuBois to police headquarters, a detective asked if he had been read his rights. DuBois said he received and understood them. During this session, DuBois did not invoke his right to silence or request an attorney. When homicide detectives arrived, they again advised DuBois of his rights before interrogating him. DuBois also received a written explanation of his rights and acknowledged that he understood them. This exchange was captured on video. DuBois spoke with detectives and answered questions until he decided to invoke his right to remain silent and his right to an attorney. The trial court determined that DuBois' statements to police were "the product of custodial interrogation, but were made knowingly, intelligently, and voluntarily after a full advisement of Miranda warnings." The trial court's conclusions are amply supported by evidence in the record. The statements DuBois made before the exercise of his rights were properly admitted. Affirmed. For the court: A. ,4, c	{ "pile_set_name": "FreeLaw" }
Matter of Solomon (2019 NY Slip Op 00519) Matter of Solomon 2019 NY Slip Op 00519 Decided on January 24, 2019 Appellate Division, Third 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 and Entered: January 24, 2019 [*1] In the Matter of LAUREL ELLEN SOLOMON, an Attorney. (Attorney Registration No. 2178697) Calendar Date: January 22, 2019 Before: Lynch, J.P., Clark, Mulvey, Aarons and Pritzker, JJ. Laurel Ellen Solomon, Hillsborough, North Carolina, pro se. Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for Attorney Grievance Committee for the Third Judicial Department. MEMORANDUM AND ORDER Per Curiam. Laurel Ellen Solomon was admitted to practice by this Court in 1988 and lists a business address in Durham, North Carolina with the Office of Court Administration. Solomon now seeks leave to resign from the New York bar for nondisciplinary reasons (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [a]). The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) advises that, in deference to this Court's discretion, it takes no position concerning Solomon's application. Upon reading Solomon's affidavit sworn to November 29, 2018 and filed November 30, 2018, and upon reading the January 11, 2019 correspondence in response by the Chief Attorney for AGC, and having determined that Solomon is eligible to resign for nondisciplinary reasons, we grant her application and accept her resignation. Lynch, J.P., Clark, Mulvey, Aarons and Pritzker, JJ., concur. ORDERED that Laurel Ellen Solomon's application for permission to resign is granted and her nondisciplinary resignation is accepted; and it is further ORDERED that Laurel Ellen Solomon's name is hereby stricken from the roll of attorneys and counselors-at-law of the State of New York, effective immediately, and until further order of this Court (see generally Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [b]); and it is further ORDERED that Laurel Ellen Solomon is commanded to desist and refrain from the practice of law in any form in the State of New York, either as principal or as agent, clerk or employee of another; and Solomon is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto, or to hold herself out in any way as an attorney and counselor-at-law in this State; and it is further ORDERED that Laurel Ellen Solomon shall, within 30 days of the date of this decision, surrender to the Office of Court Administration any Attorney Secure Pass issued to her.	{ "pile_set_name": "FreeLaw" }
322 F.Supp.2d 817 (2004) INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, SOUTH TEXAS DISTRICT LODGE NO. 37, Plaintiff, v. DYNAMIC SCIENCE, INC., Defendant. No. CIV.A. H-03-2813. United States District Court, S.D. Texas, Houston Division. June 25, 2004. 818 819 Patrick M. Flynn, Attorney at Law, Houston, TX, for Plaintiff International Association of Machinists and Aerospace Workers South Texas District Lodge No. 37. James Chrisman Phillips, Lloyd, Gosselink, et al, Austin, TX, for Defendant Dynamic Science, Inc. ORDER HITTNER, District Judge. Pending before the Court are the Motions for Summary Judgment filed by Plaintiff International Association of Machinists and Aerospace Workers, South Texas District Lodge No. 37 ("IAM") and Defendant Dynamic Science, Inc. ("DSI"). Having considered the motions, submissions, and applicable law, the Court determines that IAM's motion should be granted and DSI's motion should be denied. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff IAM and Defendant DSI are parties to a collective bargaining agreement prescribing the terms and conditions of employment for certain DSI employees working as Air Traffic Control/Weather Observer Technicians and Electronic Maintenance Technicians at Ellington Field Control Tower in Houston, Texas. Lawrence C. Thompson ("Thompson"), a member of IAM, was employed by DSI as an air traffic controller. DSI terminated his employment on April 20, 2001 for "[p]rofessional [n]egligence and nonconformance to Company and Facility directives." DSI contends just cause existed for Thompson's termination because Thompson "dangerously sequenced two aircraft in the landing sequence ... causing a close call." In contrast, IAM asserts DSI did not have just cause to terminate Thompson because no close call occurred. Pursuant to the terms of the collective bargaining agreement, Thompson filed a grievance for wrongful termination, which was eventually submitted to arbitration for resolution. The parties chose the Honorable Ed W. Bankston as arbitrator. After both parties completed their cases, Arbitrator Bankston inquired whether they wanted oral closings or to submit post-hearing briefs. DSI's attorney elected oral summation, while the directing business representative for IAM elected to submit a brief. After DSI completed its oral summation, IAM's directing business representative again stated he was going to file a post-hearing brief rather than present oral summation.[1] At that time, DSI did not request the opportunity to submit a response to IAM's post-hearing brief. When IAM's directing business representative filed its "Brief for the Union," it failed to send a copy to DSI. On June 18, 2003, Arbitrator Bankston issued an Opinion and Award regarding the dispute, wherein he stated DSI "expressly waived opportunity for presentation of Post-Hearing Brief." Ultimately, Arbitrator Bankston sustained the grievance, in all its particulars, finding DSI did not have just cause to discharge Thompson. DSI was ordered to: remedy the grievance by immediate return of the grievant, status quo ante, to his former position of employment, to include full and complete restitution of his CTO rating, seniority, back pay and all contractually related benefits with interest at the legal rate to his date of 820 reemployment such as to make him abundantly whole. The Company is directed to purge the grievant's employment records of any and all reference to the incident at issue. However, DSI failed to comply with the terms of Arbitrator Bankston's award, claiming: (1) the arbitrator considered ex parte communication by way of IAM's post-hearing brief in determining the award and thus exceeded the scope of his authority,[2] and (2) the arbitrator is guilty of misconduct and/or misbehavior, which prejudiced DSI's rights in arbitration, according to the Federal Arbitration Act ("FAA"). Because the parties were unable to resolve the issue, IAM filed this action seeking enforcement of Arbitrator Bankston's award. Subsequently, IAM filed its motion for summary judgment on October 2, 2003, requesting this Court uphold or enforce the arbitrator's award pursuant the Labor Management Relations Act ("LMRA"). DSI later filed its motion for summary judgment on March 15, 2004, claiming the arbitrator's award should be vacated because the arbitrator was guilty of misconduct, which prejudiced DSI. STANDARD OF REVIEW Summary judgment is proper when "there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view the evidence in a light most favorable to the non-movant. Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.1997). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to come "forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting FED. R. CIV. P. 56(e)). "A dispute about a material fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir.1993) (citation omitted). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conclusory allegations unsupported by specific facts will not prevent an award of summary judgment; the plaintiff cannot rest on his allegations to get to a jury without any significant probative evidence tending to support the complaint. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 (5th Cir.1994). Thus, the non-movant's burden cannot be satisfied by conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla of evidence. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.1998). Furthermore, it is not the function of the court to search the record on the non-movant's behalf for evidence which may 821 raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137 n. 30 (5th Cir.1992). LAW AND ANALYSIS Judicial review of an arbitration award pursuant to a collective bargaining agreement is authorized by Section 301 of the LMRA.[3] 29 U.S.C. § 185 (2000); Brown v. Witco Corp., 340 F.3d 209, 218 (5th Cir.2003). Under the LMRA, courts must apply a highly deferential standard when reviewing arbitration awards.[4]Int'l Chem. Workers Union v. Columbian Chems. Co., 331 F.3d 491, 494 (5th Cir.2003). The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator.... The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36-37, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (quoting United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 567-68, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960)). A court must affirm an arbitration award as long as it "`draws its essence from the collective bargaining agreement,' and is not merely `[the arbitrator's] own brand of industrial justice' ...." Id. at 36, 108 S.Ct. 364 (quoting Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)); see also Int'l Chem. Workers Union, 331 F.3d at 495 (using Steelworkers' standard of review to refuse to vacate an arbitrator's award). The Fifth Circuit provides guidance in applying the "essence test" by stating "the arbitrator's award `must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the collective bargaining agreement.'" Dow Chem. Co. v. Local No. 564, Int'l Union of Operating Eng'rs., 246 F.Supp.2d 602, 609 (S.D.Tex.2002) (citing Houston Lighting & Power v. Int'l Bhd. of Elec. Workers, Local Union No. 66, 71 F.3d 179, 183 (5th Cir.1995)) (quoting Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1325 (5th Cir.1994)). This standard must be "interpreted expansively so as to uphold the award, rather than restrictively." Dow Chem. Co., 246 F.Supp.2d at 609 (citations omitted). If "the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority[,]" the award must be affirmed. Misco, 484 U.S. at 38, 108 S.Ct. 364. The award must also be affirmed "[i]f the award is rationally inferable from the facts before the arbitrator." Six Flags Over Tex., Inc. v. Int'l Bhd. of Elec. Workers, 822 Local No. 116, 143 F.3d 213, 214 (5th Cir.1998) (quoting Valentine Sugars, Inc. v. Donau Corp., 981 F.2d 210, 214 (5th Cir.1993)). A. The Federal Mediation and Conciliation Service DSI contends the award should be vacated because the arbitrator did not faithfully adhere to Federal Mediation and Conciliation Service ("FMCS") policies. Specifically, DSI contends Arbitrator Bankston considered IAM's post-hearing brief, which was not provided to DSI, in violation of the FMCS's Code of Professional Responsibility for Arbitrators of Labor-Management Disputes ("Code") § 6(A)(2).[5] As support for its argument, DSI points to a finding by the Arbitrator Review Board of the FMCS, which determined Arbitrator Bankston considered the post-hearing brief in violation of FMCS Code requirements and admonished Arbitrator Bankston by placing a letter in his file.[6] In addition, DSI asserts that the parties "clearly incorporated the rules and regulations of the FMCS" in the collective bargaining agreement. Therefore, this Court must determine if the FMCS rules are incorporated in the collective bargaining agreement and if Arbitrator Bankston operated outside those rules; if these two issues are answered affirmatively, then the Court should vacate the award as not drawing its essence from the collective bargaining agreement. 1. The Collective Bargaining Agreement Once an employee decides to appeal the company's decision in arbitration, Article IX of the collective bargaining agreement requires the parties to obtain a list of arbitrators from the FMCS and select an arbitrator. The collective bargaining agreement defines the arbitrator's powers as being "limited to the application and interpretation of this Agreement and [the arbitrator] shall have no authority to add to, subtract from, modify or amend in any way the terms or conditions o[f] this Agreement." Article IX also specifies that the written decision of the arbitrator will be "final and binding upon the Company and the Union, and the employee." In this case, DSI concludes that the collective bargaining agreement "clearly" incorporates the "rules and regulations of the FMCS." However, the Court finds the collective bargaining agreement only refers to FMCS as the agency from which the list of arbitrators should be obtained. Otherwise, there is no mention of the FMCS. Even if the collective bargaining agreement did incorporate the rules and regulations of the FMCS, it was Arbitrator Bankston's duty to interpret those rules, as both parties hired him to settle their dispute over the interpretation of the collective bargaining agreement. See 29 U.S.C. § 173(d) (2000) ("[Arbitration] is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement."); Misco, 484 U.S. at 37, 108 S.Ct. 364 ("[I]t is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept."); Steelworkers, 363 U.S. at 597, 80 S.Ct. 1358 ("[A]n arbitrator is confined to interpretation 823 and application of the collective bargaining agreement[.]"). Therefore, DSI's assertion of clear incorporation is without merit. 2. Arbitrator Bankston's Conduct DSI contends Arbitrator Bankston acted outside his scope of authority and is guilty of misconduct because he considered ex parte communication. Vacatur of an arbitration award is permissible if an arbitrator acts outside his scope of authority or procures his decision through fraud or dishonesty. Misco, 484 U.S. at 38, 108 S.Ct. 364. Here, the FMCS Review Board found that Arbitrator Bankston erroneously "considered" the post-hearing brief in his decision. However, this Court disagrees. First, although IAM admits it failed to send a copy of the post-hearing brief to DSI, DSI presents no evidence that Arbitrator Bankston actually considered IAM's post-hearing brief in making his decision. DSI contends that because Arbitrator Bankston cited to IAM's post-hearing brief three times in his written opinion that he was "clearly influenced" by it. However, all citations to the post-hearing brief are contained in the section titled "Positions of the Parties" and sub-titled "The Union," and all references to the post-hearing brief in the document are expressed solely as opinions of IAM.[7] There is no mention of the post-hearing brief in the "Discussion and Award" section. Instead, Arbitrator Bankston extensively cited to evidence presented during the arbitration proceedings. Therefore, the Court has no basis to conclude that Arbitrator Bankston considered the post-hearing brief in reaching his decision in favor of IAM.[8] Next, DSI contends IAM's post-hearing brief contained new evidence and factual errors not presented to DSI, causing DSI to be "improperly deprived of its right to review and respond, or attempt to correct and/or clarify the falsehoods that may be contained therein."[9] However, there is no evidence DSI would have been permitted to file a reply brief if it had received a copy of IAM's post-hearing brief. As stated above, DSI "expressly waived opportunity for presentation of a Post-Hearing Brief." Therefore, even if DSI had received a copy of the brief, it would not have impacted Arbitrator Bankston's decision because DSI could not have communicated with Bankston thereafter. 824 Based on the foregoing, the Court concludes that Arbitrator Bankston was not acting outside his scope of authority under the collective bargaining agreement. The rules and regulations of the FMCS are not expressly incorporated into the collective bargaining agreement, and, even if they were, the Court cannot conclude that Arbitrator Bankston considered the post-hearing brief in reaching his ultimate decision.[10] Thus, Arbitrator Bankston did not procure his decision through fraud or dishonesty. B. The Award As long as an arbitrator's award "draws its essence" from the collective bargaining agreement and the arbitrator is not fashioning "his own brand of industrial justice," the arbitrator's award is legitimate under the LMRA. Misco, 484 U.S. at 36, 108 S.Ct. 364; see, e.g., Teamsters Local No. 5 v. Formosa Plastics Corp., 363 F.3d 368, 371 (5th Cir.2004) (upholding arbitrator's decision regarding timeliness of grievance filing); Weber Aircraft, Inc. v. Gen. Warehousemen & Helpers Union Local 767, 253 F.3d 821, 824 (5th Cir.2001) (holding arbitrator did not act beyond the ambit of his authority when he determined just cause for an employee's suspension without backpay); Dow Chem. Co., 246 F.Supp.2d at 609 (upholding award to reinstated employees for past benefits because the award drew its essence from the parties' collective bargaining agreement). In the instant case, Arbitrator Bankston's interpretation of the collective bargaining agreement clearly draws its essence from the collective bargaining agreement because his decision regarding whether DSI had just cause to terminate Thompson required an interpretation of "just cause" under the collective bargaining agreement. Here, the collective bargaining agreement gave the arbitrator authority to apply and interpret the agreement.[11] During the arbitration proceeding, IAM and DSI presented conflicting evidence as to how much separation actually existed between the two aircraft, and the pilots of the two aircraft had differing opinions as to whether or not a close call had occurred. Arbitrator Bankston determined the evidence did not indicate a "close call" occurred between the two aircraft Thompson was controlling. Applying the required highly deferential standard to the opinion of the arbitrator, the Court finds Arbitrator Bankston could reasonably infer from the facts before him that a close call had not occurred and DSI did not have just cause to terminate Thompson. Accordingly, the Court hereby ORDERS Plaintiff IAM's Motion for Summary Judgment is GRANTED and Defendant DSI's Motion for Summary Judgment is DENIED. The Court further ORDERS DSI to comply with Arbitrator Bankston's Award of June 18, 2003. 825 All other relief not expressly granted herein is denied.[12] NOTES [1] Specifically, IAM's directing business representative stated, "We're just going to write a brief later. I guess if you're not going to write a brief, I can pick a date as long as it's okay with the arbitrator." [2] IAM was represented by its directing business representative at the arbitration, who is not an attorney. The Fifth Circuit has held that a "union representative is not a lawyer and he cannot be expected to function as one." Freeman v. O'Neal Steel, Inc., 609 F.2d 1123, 1127-28 (5th Cir.1980). Therefore, this Court will not consider the directing business representative's failure to send a copy of its brief to DSI as "purposeful" and "knowing," even though DSI asserts it as such. [3] In its Supplemental Index of Authority in Support of Its Response and Objection to Plaintiff's Motion for Summary Judgment, DSI cites the FAA and four cases relying on the FAA to this Court as authority for its position. However, the Fifth Circuit has expressly stated "the FAA does not apply to cases reviewing arbitration awards pursuant to a collective bargaining agreement ...." Brown v. Witco Corp., 340 F.3d 209, 217 (5th Cir.2003). Further, "[w]hen an arbitration decision arises from the terms of the collective bargaining agreement, judicial review of the arbitration award is authorized not by the FAA but by the terms of Section 301 of the Labor Management Relations Act." Id. at 218. Courts may, however, look to the FAA for guidance in reviewing an arbitration award under a collective bargaining agreement. Id. at 218 n. 8. [4] Even under the FAA, "[j]udicial review of an arbitration award is extraordinarily narrow," buttressing a "national policy favoring arbitration[.]" Forsythe Int'l v. Gibbs Oil Co. of Tex., 915 F.2d 1017, 1020-22 (5th Cir.1990). [5] "An arbitrator must not consider a post hearing brief or submission that has not been provided to the other party." Code of Professional Responsibility for Arbitrators of Labor-Management Disputes of the: Federal Mediation and Conciliation Service § 6(A)(2) (1996). [6] The Court determines that the FMCS's finding that Arbitrator Bankston violated FMCS rules is not binding on this Court. [7] DSI contends IAM referred to a previous arbitration in its post-hearing brief which "may have violated the confidentiality rules afforded to arbitral forums." Arbitrator Bankston did refer to a previous arbitration in the "Pertinent Facts" section, but he did not cite to the post-hearing brief. It is unclear from the record whether Arbitrator Bankston had knowledge of the previous arbitration before he received IAM's brief, but there is no indication that knowledge of a previous arbitration influenced Arbitrator Bankston's decision. [8] The Court notes that, even if it were reviewing the award under the FAA, any claims of fraud or dishonesty on Arbitrator Bankston's part would fail. The Fifth Circuit requires a "nexus between the alleged fraud and the basis for the [arbitrator's] decision." Forsythe Int'l, 915 F.2d at 1022. If the arbitrator rests his decision on "grounds clearly independent of issues connected to the alleged fraud, the statutory basis for vacatur is absent." Id. [9] Specifically, DSI contends IAM falsely stated the Senior Controller, who also failed to timely report the incident, was not disciplined. Further, DSI states the "work performance and/or discipline of other employees is not relevant to this proceeding." Even if the Court were to determine that DSI is correct, it is not relevant as Arbitrator Bankston did not discuss the disciplinary status of the Senior Controller in the Opinion and Award. Therefore, the Court cannot conclude that Arbitrator Bankston was in error. [10] Furthermore, even if the award were reviewed according to the FAA, as is suggested by DSI, an evidentiary error must so affect "the rights of a party that it may be said that he was deprived of a fair hearing." Forsythe, 915 F.2d at 1023 (citations omitted). Because there is no indication Arbitrator Bankston even considered the alleged new evidence, the presentation of this evidence in the post-hearing brief cannot be said to have been so prejudicial as to render the proceeding unfair. [11] Article IX of the collective bargaining agreement states, "[t]he arbitrator's powers shall be limited to the application and interpretation of this Agreement and he shall have no power to add to, subtract from, modify or amend in any way the terms or conditions o[f] this Agreement." (emphasis added). [12] The Court declines to address attorney's fees at this time, and the parties may submit additional briefing on this issue.	{ "pile_set_name": "FreeLaw" }
447 So.2d 1383 (1984) DIVISION OF ADMINISTRATION, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Appellant, v. John L. ALLEN, et al., Appellees. No. 82-1672. District Court of Appeal of Florida, Fifth District. March 8, 1984. Rehearing Denied April 5, 1984. 1384 Alan E. DeSerio, Robert I. Scanlan, J. Jay Reilly, Oval Boone and John H. Beck, Tallahassee, for appellant. Gerald S. Livingston, Orlando, and David W. Foerster, Jacksonville, for appellee Peterson Outdoor Advertising. No appearance for appellee Allen. FRANK D. UPCHURCH, Jr., Judge. This is an appeal from a final judgment after jury verdict in a condemnation action. The jury returned a verdict awarding $62,750 to Peterson Outdoor Advertising for two billboards and leasehold interest. The Department of Transportation (DOT), the condemning authority, appeals from that judgment and initially contends that the court erred in ruling that Peterson was entitled to a separate verdict for its interest in the property acquired. The title owner of the property on which the billboards were located was the First National Bank and Trust Company of Riviera Beach. It filed an answer in the condemnation action requesting full compensation for the land being taken. Peterson, which leased a portion of the land, filed its answer demanding full compensation for its property interest in two sign structures which were located on the property pursuant to a lease agreement. Peterson claimed entitlement to lost profits, lost permits, loss of revenue from advertisers and infringement on the right to remain in undisturbed possession for the duration of the lease. At the pre-trial conference, the court ruled that Peterson held a separate property interest from the fee owner and that a separate jury verdict would be entered as to each property interest. At the conference, Peterson dropped its claim for business damages. DOT argues that while Peterson, as lessee, was an owner for purposes of entitlement to compensation, it was not entitled to a separate verdict. Section 73.081, Florida Statutes (1981), states: Form of verdict The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated and the amount to be paid therefor, together with any damage to the remainder caused by the taking and including business damages when allowable by statute. When severance damages, business damages, moving costs, separate compensation for permanent improvements made by a mobile home owner under s.73.072, or other special damages are sought, the verdict shall state the amount of such damages separately from the amounts of other damages awarded. This section had previously been amended in 1970 by chapter 70-284, Laws of Florida. The title to the revision states: 1385 AN ACT RELATING TO EMINENT DOMAIN PROCEEDINGS: AMENDING SECTION 73.081, FLORIDA STATUTES, PROVIDING FOR SEPARATE STATEMENTS IN THE VERDICT OF CERTAIN DAMAGES: PROVIDING AN EFFECTIVE DATE. The former statute read: Form of verdict The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated; the amount to be paid therefor, together with any damage to the remainder caused by the taking, including business damages when allowable by statute. The compensation awarded by the jury for each parcel of property sought to be appropriated shall be determined as a whole, irrespective of the separate interests of the various parties or the various items of damages claimed as to each parcel. DOT argues that although the present statute no longer specifically states that the compensation shall be determined as a "whole," it also does not contain language indicating legislative intent that separate verdicts be entered for each interest in a parcel of property. In support of its position, DOT relies on Carter v. State Road Department, 189 So.2d 793 (Fla. 1966), wherein the supreme court held that when the jury shall try what compensation is to be made to defendants for property sought to be appropriated, it must evaluate both interests of leasehold and fee owners and render an inclusive verdict. Likewise, in City of Fort Lauderdale v. Casino Realty, Inc., 313 So.2d 649 (Fla. 1975), the court held that although Article X, § 6 of the Florida Constitution provides that no private property shall be taken except for public purpose and full compensation thereof to be paid to each owner, this did not require a separate jury verdict for the interest of each owner in a parcel of land acquired in an eminent domain proceeding. In Rich v. Harper Neon Co., 124 So.2d 750, 753 (Fla. 2d DCA 1960), the Second District considered the question of: [W]hether in the trial of an eminent domain case a jury should apportion the damages to a tract of land between the owner of the fee and various other interested parties such as mortgagors, tenants, lienholders, etc., or should the verdict for the jury only include the damages suffered by the owner of the fee to a tract and subsequently thereafter the trial judge apportion the jury verdict between the various claimants. The court then quoted approvingly from Porter v. Columbia County, 75 So.2d 699 (Fla. 1954): [S]uch questions as interest in the property, ownership, liens on property, may be determined in the same action in a summary proceeding after the jury has ascertained and rendered a verdict as to the value of the property taken and damages to the remainder. Id. at 753. Peterson claims that Carter, Casino Realty, and Rich were correct under section 73.081 (1969), but that the 1970 amendments thereto clearly intended to eliminate the so-called "unity rule" replacing it with a rule which permitted the jury to render a verdict for each property interest being acquired. The general rule for valuation of property subject to a leasehold interest is to ascertain the entire compensation as though the estate belongs to one person and is unencumbered. This "undivided fee rule" is more fully described in 4 Nichols on Eminent Domain, § 13.35[2] (3d Ed. 1978), which offers the following analysis: Although the general rule regarding removable tenant fixtures is that they are not to be valued separately as personal property but are taken into account insofar as they enhance the value of the realty, it would seem that the entire interest of the lessee, i.e., the leasehold interest with its value enhanced by the 1386 sign erected on it under the terms of a lease, should be valued as a unit, if possible. Where the sign and land are under separate ownership, Nichols states: Since a lessee's and lessor's interests are both involved, an apportionment between the lessor and lessee is usually made after the value of the unencumbered fee. In Wingert v. Prince, 123 So.2d 277 (Fla. 2d DCA 1960), the Second District stated that the compensation awarded by the jury shall be determined as a whole, irrespective of the various interests held in the parcel. The trial court then determines the portion to be awarded each of the owners, lessees, mortgagees, judgment creditors and lienholders in respect to the compensation awarded and the method of apportionment among interested parties, together with the disposition of any other matters arising from the taking. In Porter v. Columbia County, 75 So.2d 699 (Fla. 1954), the court discussed the policies underscoring this method: The purpose of the eminent domain proceeding is to determine the value of the property taken and the damage to the remainder, irrespective of ownership. Such questions as interest in the property, ownership, liens on the property, may be determined in the same action in a summary proceeding after the jury has ascertained and rendered a verdict as to the value of the property taken and damages to the remainder. Id. at 700. The Florida rule requiring the jury to evaluate the interest of both the fee owner and the leaseholder and render an inclusive verdict is more fully outlined in Florida Eminent Domain Practice and Procedure, (CLE 3d Ed. 1978), which states: It is mandatory that severance damages, business damages, moving costs and other special damages be itemized... . Insofar as apportionment of a leasehold interest is concerned, the law remains the same in that this is a matter to be decided by the trial court in a proceeding supplemental to the jury trial itself. Id. at 211. The proceeding referred to in the last sentence of the above quote is that set out in section 73.101, Florida Statute (1981), which provides: Form of judgment The judgment shall recite the verdict in full and shall state that the estate or interest in the property described in the petition and sought to be appropriated by the petitioner shall vest in the petitioner upon the payment of, or securing by deposit of money, the amount found by the verdict of the jury. Where there are conflicting claims to the amount awarded for any parcel, the court, upon appropriate motion, shall determine the rights of the interested parties with respect to the amount awarded for each parcel and the method of apportionment, together with the disposition of any other matters arising from the taking. Peterson's interest (the claim for business damages having been abandoned) is not classified as special damages and therefore a separate award was not proper under section 73.081, Florida Statutes (1981). The jury verdict recites that Peterson was to receive $62,750 "for value of its property interest in the form of outdoor advertising signs affixed to the land acquired." This constituted the value of its leasehold interest for which section 73.101 provides that the judge is to determine its value in a supplemental proceeding. The revision made by chapter 70-284, while providing for a separate statement in the verdict of certain damages, is not designed to provide a separate statement for a leasehold interest. We therefore conclude that the correct method was for the jury to establish the value of the land as a unit including the value of any improvements. The remaining questions concern the proper method of determining value in 1387 these circumstances. In this case, the signs are properly regarded as trade fixtures which in Florida are considered as personal property rather than realty. They may be removed by the tenant at the end of his term provided that removal does not substantially injure the freehold. See Wetjen v. Williamson, 196 So.2d 461 (Fla. 1st DCA 1967). In Division of Administration, Department of Transportation v. Ely, 351 So.2d 66 (Fla. 3d DCA 1977), the court held that Southeastern Propane Gas Company, which had a service and easement agreement with the owners of a mobile home part to supply liquified petroleum gas, had established an easement by the installation of underground gas lines and other equipment for the purpose of serving the trailer park. The court found that Southeastern Propane Gas had lost its underground gas lines by the condemnation action and had to incur costs to remove any salvageable items on the condemned parcel. However, any incidental frustration of the performance of the service contract and easement agreement by the condemnation of the land serviced by the agreement was not compensable in the eminent domain proceedings. The only compensation which would be permitted would be the value of lost fixtures located on the condemned land as well as the cost of removing other trade fixtures which were salvageable from the land. Citing State Road Dept. v. Bramlett, 189 So.2d 481 (Fla. 1966), the court noted that damages to a business located on land appropriated in eminent domain proceedings do not constitute part of the constitutionally protected right of just compensation for the public taking of private land and are only compensable as provided by statute. In the instant case, the applicable statute is section 479.24, Florida Statutes (1981), which provides in part: Compensation for removal of signs; eminent domain; exceptions. (1) Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971 shall be fully compensated by the method herein provided. (2) Compensation shall be made pursuant to the State's eminent domain procedures, chapters 73 and 74. This statute was passed by the legislature for purposes of implementing 23 U.S.C. § 131 dealing with controlled outdoor advertising. This is part of the Highway Beautification Program and, as recognized in Walker v. Dept. of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979), expresses the legislative intent that signs be considered property interests for which compensation must be paid. While DOT does not take exception to Peterson's entitlement to just compensation for the value of the signs, the parties disagree as to how the award should be calculated. Peterson contends that when, as here, the signs cannot be effectively relocated in the same market area, the cost of reproducing the signs new, less depreciation, is not the exclusive method for calculating damages. In support of this argument, Peterson cites State of Washington v. Obee Advertising, Inc., 9 Wash. App. 943, 516 P.2d 233 (1973), wherein the court held that the "income approach" of valuation was proper. This method defines the present worth of rental income from the signs as calculated using a multiplier factor. In response, DOT states that the income approach is a veiled attempt to claim business damages. It states that the testimony offered by Peterson was designed to show income from a commercial enterprise, a portion of which was derived *1388 from this location. We agree with DOT's contention. Actually it was not income generated from the land itself, but was from the business operated on the land. The income from the signs was business damages and Peterson relinquished its claim to business damages at the pre-trial conference. The proper method of valuation of the signs was the cost of removing the signs, and if not removable, it was the replacement value less depreciation. We REVERSE and REMAND for further proceedings consistent herewith. Peterson's motion for attorney fees is hereby granted. Determination shall be made by the trial court in accordance with section 73.131(2), Florida Statutes. See Tosohatchee Game Preserve, Inc. v. Central and Southern Florida Flood Control District, 265 So.2d 681 (Fla. 1972). DAUKSCH and COBB, JJ., concur.	{ "pile_set_name": "FreeLaw" }
90 F.Supp. 831 (1950) BALFOUR, GUTHRIE & CO., Limited, et al. v. UNITED STATES et al. No. 25325. United States District Court N. D. California, S. D. May 5, 1950. 832 Lillick, Geary, Olson, Adams & Charles, James L. Adams, San Francisco, Cal., Bigham, Englar, Jones & Houston, New York City, for libelants. Frank J. Hennessy, United States Attorney, San Francisco, Cal., for respondent United States. F. W. Dorr, Dorr, Cooper & Hays, San Francisco, Cal., of counsel and for respondent American Pac. S. S. Co. GOODMAN, District Judge. The competency of the United Nations to sue the United States in Federal Court under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., is the principal and unique question tendered by the exceptions to the libel of the United Nations and other joint libelants. As well do the exceptions question the right of the United Nations to maintain the libel against American Pacific Steamship Co., a co-respondent. The libel alleges that in the autumn of 1947, the United Nations' International Children's Emergency Fund shipped from the ports of Tacoma and Oakland aboard the SS Abraham Rosenberg a large quantity of powdered milk destined for Italy and Greece. A portion of the shipment, it is alleged, was never delivered to the consignee and another portion arrived in a damaged condition. The Abraham Rosenberg was owned by the United States and was operated under a bareboat charter by respondent American Pacific Steamship Company. The United Nations and six other shippers, whose merchandise allegedly suffered a similar fate, have joined in the libel against the United States and the American Pacific Steamship Company. Whether the United Nations may maintain these proceedings against respondent American Pacific Steamship Company can be first and more easily answered. The International Court of Justice has held that the United Nations is a legal entity separate and distinct from the member States. While it is not a state nor a super-State, it is an international person, clothed by its Members with the competence necessary to discharge its functions.[1] Article 104 of the Charter of the United Nations, 59 Stat. 1053, provides that "the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes." As a treaty ratified by the United States, the Charter is part of the supreme law of the land.[2] No implemental legislation would appear to be necessary to endow the United Nations with legal capacity in the United States.[3] But the President has removed any possible doubt by designating[4] the United Nations as one of 833 the organizations entitled to enjoy the privileges conferred by the International Organizations Immunities Act, 59 Stat. 669, 22 U.S.C.A. §§ 288-288f. Section 2(a) of that Act, 22 U.S.C.A. § 288a(a), states that "international organizations shall, to the extent consistent with the instrument creating them, possess the capacity (i) to contract; (ii) to acquire and dispose of real and personal property; (iii) to institute legal proceedings."[5] The capacity of the United Nations to maintain the libel against the American Pacific Steamship Company is completely consistent with its charter. The libel asserts rights flowing from a contract made by a specialized agency of the United Nations in the performance of its duties. The agency, the International Children's Emergency Fund, was created by resolution of the General Assembly of the United Nations on December 11, 1946. (Resolution 57(1), United Nations Yearbook 1946-47, 162). Its function is to promote child health generally and in particular to assist the governments of countries, that were the victims of aggression, to rehabilitate their children. The solution of international health problems is one of the responsibilities assumed by the United Nations in Article 55 of its Charter, 59 Stat. 1045. Whether the United Nations may sue the United States is a more difficult question. It is apparent that Article 104 of the Charter of the United Nations was never intended to provide a method for settling differences between the United Nations and its members.[6] It is equally clear that the International Organizations Immunities Act does not amount to a waiver of the United States' sovereign immunity from suit. The precise question posed is whether the capacity to institute legal proceedings conferred on the United Nations by that Act includes the competence to sue the United States in cases in which the United States has consented to suits by other litigants.[7] The broad purpose of the International Organizations Immunities Act was to vitalize the status of international organizations of which the United States is a member and to facilitate their activities.[8] A liberal interpretation of the Act is in harmony with this purpose. The considerations which might prompt a restrictive interpretation are not persuasive. It is true that history has recorded few, if any, instances in which international entities have submitted their disputes to the courts of one of the disputing parties. But international organizations on a grand scale are a modern phenomena. The wide variety of activities in which they engage is likely to give rise to claims against their members that can most readily be disposed of in national courts. The present claim is such a claim. No political overtones *834 surround it. No possible embarrassment to the United States in the conduct of its international affairs could result from such a decree as this court might enter. A claim for cargo loss and damage is clearly susceptible of judicial settlement. Particularly is this so in this litigation inasmuch as the United Nations' claim is one of several of the same nature arising out of the same transaction or occurrence.[9] International organizations, such as the United Nations and its agencies, of which the United States is a member, are not alien bodies. The interests of the United States are served when the United Nations' interests are protected. A prompt and equitable settlement of any claim it may have against the United States will be the settlement most advantageous to both parties. The courts of the United States afford a most appropriate forum for accomplishing such a settlement. It may be contended that since international organizations are granted immunity from suit by the International Organizations Immunities Act, an equitable and complete judicial settlement of claims asserted against the United States may not be had. But this possible objection is more fancied than real. For the United Nations submits to our courts when it urges it claim and cannot consequently shut off any proper defenses of the United States. Finally, it cannot be denied that when the Congress conferred the privileges specified in the International Organizations Immunities Act, it neither explicitly or implicitly limited the kind or type of legal proceedings that might be instituted by the United Nations. There appears to be no good reason for the judicial imposition of such limitations. The exceptions of the respondents are severally overruled. NOTES [1] Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations, I. C. J. Reports, 1949, 174; 43 American Journal of International Law 589. (1949). [2] Constitution, Article VI, Clause 2. [3] See Curran v. City of New York, S.Ct. 1947, 191 Misc. 229, 77 N.Y.S.2d 206, 212 affirmed 2d Dep't 1949, 275 App.Div. 784, 88 N.Y.S.2d 924. [4] Executive order 9698, February 19, 1946, 11 F.R.1809, 22 U.S.C.A. § 288 note. [5] The General Convention on Privileges and Immunities of the United Nations approved by the General Assembly of the United Nations on February 13, 1946 has never been acceded to by the United States. The provision in respect to the capacity to institute legal proceedings, however, is identical with the provision in the International Organizations Immunities Act. For text of the Convention see, Resolutions Adopted by the General Assembly During the First Part of the First Session from January 10 to February 14, 1946, page 25; United Nations' Yearbook 1946-1947, 99. [6] See The Report to the President on the Results of the San Francisco Conference, Department of State Publication 2349, Conference Series 71, 157-158; The Proceedings of the Sixth (legal) Committee of the General Assembly in respect to the settlement of claims for reparations against member states, as reported in 43 American Journal of International Law 460 (1949). [7] Section 2 of the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C.A. § 742, permits a libel in personam to be brought against the United States in respect to United States' vessels employed as merchant vessels "in cases where if such vessel were privately owned or operated" a proceeding in admiralty could be maintained. Section 3 of that Act authorizes the libelant, at his election, to proceed in accordance with the principles of libels in rem. [8] See House Report 1203, 79th Congress, First Session. [9] When, by the Suits in Admiralty Act, the United States waived its sovereign immunity against suit, reasons entirely unconnected with the personality of prospective litigants were the motivating factors. Libels in Admiralty were traditionally proceedings in rem. Substantially the purpose of the Suits in Admiralty Act was to obviate seizure of United States' vessels and to substitute therefor an action in personam. See Pineiro v. U. S., D.C.N.D.Calif.1945, 65 F.Supp. 191, note p. 192.	{ "pile_set_name": "FreeLaw" }
786 F.2d 432 252 U.S.App.D.C. 19 U.S.v.Nawaz 85-5841 United States Court of Appeals,District of Columbia Circuit. 4/9/86 1 D.C.D.C. 2 AFFIRMED *	{ "pile_set_name": "FreeLaw" }
95 F.3d 52 Hendersonv.Peerbhoy* NO. 96-40303 United States Court of Appeals,Fifth Circuit. July 19, 1996 Appeal From: E.D.Tex., No. 6:95-CV-488 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
986 So.2d 608 (2008) BROWN v. STATE. No. 2D07-5028. District Court of Appeal of Florida, Second District. July 9, 2008. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }

Subsets and Splits